Judge: Elaine Lu, Case: 22STCV27216, Date: 2023-01-05 Tentative Ruling

Case Number: 22STCV27216    Hearing Date: January 5, 2023    Dept: 26

Superior Court of California

County of Los Angeles

Department 26

Procedural Background

            On August 22, 2022, Plaintiff Melissa Major (“Plaintiff”) filed the instant wrongful termination action against Defendants Accentcare, Inc. and Accentcare UCLA Health, LLC (jointly “Defendants”).  The complaint asserts fifteen causes of action for (1) Wrongful Termination — Violation of Cal. Labor Code, Sections 1102.5, 98.6, 2698, et. seq., (2) Wrongful Termination in Violation of Public Policy, (3) Retaliation for Asserting Legal Rights in Violation Of Labor Code, §§98.6, 1102.5, and 2698, et. seq., (4) Failure to Pay all Wages at Time of Discharge - Labor Code §§201, 202, 203, 558, 558.1 and IWC Wage Order,4-2001, Sections 3 and 20, (5) Failure to Provide Accurate Itemized Statements - Labor Code §§226, §558, and 558.1, (6) Unfair Competition (B&PC, §§17200 et. seq.), (7) Disability Discrimination – Wrongful Discrimination Re: Terms, Conditions, and Privileges of Employment - FEHA; Gov. Code §§12940 et. seq., and 12926(o), (8) Disability Discrimination in Violation of California Public Policy, and Gov. Code §§12920-12921, et. seq., 12965, 12926(o), (9) Retaliation - Wrongful Discrimination Re: Terms, Conditions, and Privileges of Employment - FEHA; Labor Code, Sections 1102.5 and 98.6, Gov. Code §§12940 et. seq., and 12926(o), (10) Failure to Prevent Harassment And Discrimination in Violation Of The California Fair Employment And Housing Act And The California Labor Code, (11) Violation of Americans With Disabilities Act; Anti-Retaliation Provisions, (12) Negligent Supervision And Training of Employees, (13) Breach of Implied Duty To Perform Contract With Reasonable Care, (14) Breach of Implied Covenant of Good Faith and Fair Dealing, and (15) Violation of Labor Code, Section 222.5 — Civil Penalties under Labor Code, Section 2398, et. seq.

            On December 5, 2022, Defendants filed a demurrer to the complaint.  On December 21, 2022, Plaintiff filed an opposition.  On December 28, 2022, Defendants filed a reply.

Allegations of the Operative Complaints

            The complaint alleges that:

            Plaintiff has been a Licensed Vocational Nurse since 1994 and “has been employed in various capacities and positions in the medical field, including with, but not limited to, UCLA School of Medicine, UCLA Medical Center, West Hills Hospital, and Cedars-Sinai Medical Center, both in management positions and otherwise.”  (Complaint ¶ 39.) 

            In May 2021, Plaintiff applied to work as a Licensed Vocational Nurse/Home Health Field Nurse with Defendants.  (Id. ¶ 40.)  On June 1, 2021, Plaintiff received a formal employment offer from Defendants which Plaintiff accepted.  (Id. ¶¶ 40-41.)  After accepting the employment offer, “Defendants advised Plaintiff that she would have to undergo numerous administrative and medical procedures, including, but not limited to, a background check, a drug screening, a physical examination, and the review and completion of various required documents. Defendants advised Plaintiff that she would be required to complete those procedures no later than June 14, 2021; the starting date of her work.”  (Id. ¶ 41.)

            Given the short time limit, Plaintiff encountered numerous obstacles including the price for the medical examinations that Defendants refused to pay as required by Labor Code section 222.5, the limited hours for drug screening, the pandemic causing difficulty in obtaining an appointment in time, and the difficulty in communicating with Defendants.  (Id. ¶ 42.)

            “On June 8, 2021, Plaintiff telephoned Defendants to advise of her ongoing difficulties in getting the physical examination completed. In an effort to accommodate Plaintiff’s time restraints with regard to her June 14, 2021 start date, Defendants agreed to extend her start date to June 28, 2021. While this provided ample opportunity for Plaintiff to complete the required tasks, it still did not address Plaintiff’s inability to pay for the physical examination. On a number of occasions, Plaintiff requested that Defendants review Labor Code, Section 222.5 so that she could have the physical examination completed. Defendants did not address that legal obligation, and continued their refusal to assume that cost.”  (Id. ¶ 43.)  During this time Plaintiff also advised Defendants that she had a disabled daughter “for reasons entirely unrelated to her employment with Defendants, and not to avoid, nor suggest any interference with, any of her employment duties.”  (Id. ¶ 44.)

            On June 18, 2021, Plaintiff “was advised by way of a voicemail from Defendants that her "offer had been withdrawn," effectively terminating her employment. This termination occurred notwithstanding that Plaintiff still had an additional ten days within which to complete her employment tasks prior to the extended June 28, 2021 start date.”  (Id. ¶ 45.)  Defendant’s basis for termination was pretextual.  (Id. ¶ 51.)

Legal Standard

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal 3d 311, 318.) No other extrinsic evidence can be considered (i.e., no “speaking demurrers”). (Ion Equipment Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881.)

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal. App. 4th 740, 747.)  When considering demurrers, courts “give the complaint a reasonable interpretation, and read it in context.”  (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.)  In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice.  (Donabedian v. Mercury Ins. Co. (2004) 116 Cal. App. 4th 968, 994.)  “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters.  Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.”  (SKF Farms v. Superior Ct. (1984) 153 Cal. App. 3d 902, 905.)  “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.”  (Hahn, supra, 147 Cal.App.4th at 747.) 

Meet and Confer Requirement

Code of Civil Procedure § 430.41, subdivision (a) requires that “[b]efore filing a demurrer pursuant to this chapter, the demurring party shall meet and confer¿in person or by telephone¿with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” The parties are to meet and confer at least five days before the date the responsive pleading is due and if they are unable to meet the demurring party shall be granted an automatic 30-day extension.  (CCP § 430.41(a)(2).)  The demurring party must also file and serve a declaration detailing the meet and confer efforts.  (Id.¿at (a)(3).)¿ If an amended pleading is filed, the parties must meet and confer again before a demurrer may be filed to the amended pleading.  (Id.¿at (a).) 

Here, Defendants have fulfilled the meet and confer requirement.  (Ferrantella Decl. ¶¶ 4-16, Exhs. C-D.) 

Discussion

            Defendants demurrer to the first, second, third, fourth, fifth, seventh, eighth, ninth, eleventh, thirteenth, fourteenth, and fifteenth causes of action.

Duplicative Claims and Uncertainty

            Defendant asserts that the first, second, third, seventh, eighth, ninth, and eleventh causes of action are impermissibly duplicative and uncertain.

As a preliminary matter, there is a split of authority as to whether a demurrer can be properly sustained for certain causes of action being duplicative of other causes of action.  (Compare Palm Springs Villas II Homeowners Assn., Inc. v. Parth (2016) 248 Cal.App.4th 268, 290 [demurrer properly sustained on ground that cause of action was duplicative] with Blickman Turkus, LP v. MF Downtown Sunnyvale, LLC (2008) 162 Cal.App.4th 858, 890 [that a cause of action is duplicative “is not a ground on which a demurrer may be sustained”].)

A special demurrer for uncertainty, Code of Civil Procedure section 430.10(f), is disfavored and will only be sustained where the pleading is so bad that defendant cannot reasonably respond—i.e., cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him/her.  (Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.)  Moreover, even if the pleading is somewhat vague, “ambiguities can be clarified under modern discovery procedures.” (Ibid.) 

Here, given the split of authority as to whether demurrers can be sustained on duplicity, the Court finds the reasoning in Palm Springs Villas II Homeowners Assn., Inc. more compelling and supported by more published authority.  There is no authority permitting pleadings that “add[] nothing to the complaint by way of fact or theory of recovery.”  (Rodrigues v. Campbell Industries (1978) 87 Cal.App.3d 494, 501.)  Thus, demurrers to duplicative pleadings should be sustained.  (Award Metals, Inc. v. Superior Court (1991) 228 Cal.App.3d 1128, 1135.)

Here, the complaint is filled with multiple and unnecessary duplicative causes of action.  “The cause of action is based on the injury to the plaintiff, not on the legal theory or theories advanced to characterize it. Thus, if a plaintiff states several purported causes of action which allege an invasion of the same primary right he has actually stated only one cause of action. On the other hand, if a plaintiff alleges that the defendant's single wrongful act invaded two different primary rights, he has stated two causes of action, and this is so even though the two invasions are pleaded in a single count of the complaint.”  (Skrbina v. Fleming Companies (1996) 45 Cal.App.4th 1353, 1364.)

The first cause of action for Wrongful Termination — Violation of Cal. Labor Code, Sections 1102.5, 98.6, 2698, et. seq. and the third cause of action for Retaliation for Asserting Legal Rights in Violation of Labor Code §§ 98.6, 1102.5, and 2698, et. seq. are clearly duplicative of each other.  Labor Code section 98.6 and 1102.5 are retaliation statutes that prevent retaliation in the form of termination and other adverse employment actions based making labor complaints or reports a violation of a statute or regulation.  (Lab. Code §§ 98.6, 1102.5; see also Complaint ¶¶ 53-54, 74-75.)  Labor Code section 2698, et seq. merely refers to the Private Attorney General Statute and provides that Plaitniff may bring a representative action based on aggrieved employees based on other Labor Code violations such as the retaliation Labor Code statutes cited in the first and third causes of action.  The only retaliatory act alleged by Defendants is termination.  (Complaint ¶ 83.)  Thus, the first and third causes of action state the same facts, the same harm, are based on the same statutes and legal theories.  Therefore, having two causes of action state identical harm and legal theory “adds nothing to the complaint by way of fact or theory of recovery.”  (Rodrigues, surpa, 87 Cal.App.3d at p.501.)  As the third cause of action for retaliation is technically more applicable because retaliation can take more forms than termination, Defendants demurrer to the first cause of action is SUSTAINED for duplicity.

Defendants contend that the first and second causes of action for wrongful termination are also duplicative.  The Court disagrees.  As noted above, the first cause of action while entitled wrongful termination based on Labor Code section 98.6 and 1102.5 is a claim for retaliation in which the retaliatory act was termination.  (Complaint ¶¶ 56, 83.)  A claim for wrongful termination in violation for public policy, while based on the same conduct – Plaintiff’s termination – is premised on a separate legal theory – i.e., that the termination violated public policy (Nosal-Tabor v. Sharp Chula Vista Medical Center (2015) 239 Cal.App.4th 1224, 1238-1239, [“A discharge is actionable as against public policy if it violates a policy that is: ‘(1) delineated in either constitutional or statutory provisions; (2) ‘public’ in the sense that it ‘inures to the benefit of the public’ rather than serving merely the interests of the individual; (3) well established at the time of discharge; and (4) ‘substantial’ and ‘fundamental.’’”].)  As the second cause of action for wrongful termination in violation of public policy is based on a different legal theory and would therefore not be duplicative.

Defendants also contend that the seventh and eighth causes of action are duplicative.  The seventh cause of action, entitled Disability Discrimination — Wrongful Discrimination Re: Terms, Conditions, and Privileges of Employment - FEHA; Gov. Code §§12940 et.seq., and 12926(o), is based on Plaintiff’s claim that Defendants discriminated against Plaintiff based on her medical conditions and disabilities.  (Complaint ¶¶ 119-127.)  The eighth cause of action alleges that Defendants discriminated against Plaintiff due to her daughter's medical conditions and disabilities.  (Complaint ¶¶ 128-137.)  Each of these claims is based on different facts – i.e., discrimination against Plaintiff for her own disabilities versus discrimination due to Plaintiff’s association with her daughter with disabilities.  Accordingly, the seventh and eighth causes are not duplicative.

Finally, Defendants contend that the third, ninth, and eleventh causes of action are duplicative and uncertain.  The Court disagrees.  As noted above, the third cause of action is for retaliation based on Labor Code sections 98.6 and 1102.5.  (Complaint ¶¶ 73-83.)  The ninth cause of action claims retaliation under Labor Code section 98.6 and 1102.5 and retaliation under the Fair Employment and Housing Act.  (Complaint ¶¶ 138-147.)  The eleventh cause of action alleges retaliation under the Americans with Disabilities Act.  (Complaint ¶¶ 159-174.)  Each of these claims for retaliation is based on a different theory of recovery and different violation of law.  While the ninth cause of action is very similar to the third cause of action, the ninth cause of action includes an additional legal theory – i.e., retaliation in violation of the Fair Employment and Housing Act.  Accordingly, the third, ninth, and eleventh causes of action are not duplicative.  Nor are these causes of action uncertain.  These causes of action clearly designate the basis for the retaliation claims and against whom the claims are brought.

Thirteenth and Fourteenth Causes of Action: Breach of Contract and Breach of the Implied Covenant of Good Faith and Fair Dealing

            Defendants assert that the thirteenth and fourteenth causes of action for breach of contract and breach of the implied covenant of good faith and fair dealing fail because Plaintiff fails to attach the alleged contract or provide the terms of the contract verbatim.

“The elements of a cause of action for breach of contract are: ‘(1) the contract, (2) plaintiff's performance or excuse for nonperformance, (3) defendant's breach, and (4) the resulting damages to plaintiff.’”  (Coles v. Glaser (2016) 2 Cal.App.5th 384, 391 [internal citations omitted].)  “The covenant of good faith and fair dealing, implied by law in every contract, exists merely to prevent one contracting party from unfairly frustrating the other party's right to receive the benefits of the agreement actually made.”  (Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 349.)  “It cannot impose substantive duties or limits on the contracting parties beyond those incorporated in the specific terms of their agreement.”  (Id. at pp.349–350.)  Accordingly, “[a] breach of the implied covenant of good faith is a breach of the contract.”  (Thrifty Payless, Inc. v. The Americana at Brand, LLC (2013) 218 Cal.App.4th 1230, 1244.)  Therefore, “[a] breach of the covenant of good faith and fair dealing does not give rise to a cause of action separate from a cause of action for breach of the contract containing the covenant.”  (Smith v. International Brotherhood of Electrical Workers (2003) 109 Cal.App.4th 1637, 1645, Fn.3.) 

“In an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct.”  (CCP § 430.10(g).)  “To state a cause of action for breach of contract, it is absolutely essential to plead the terms of the contract either in haec verba or according to legal effect.” (Progressive West Ins. Co. v. Yolo County Superior Court (2005) 135 Cal.App.4th 263, 270, n. 1. [italics added].)

Here, the only contract alleged in the complaint is the June 1, 2021 offer of employment from Defendants.  (Complaint ¶ 40.)  However, the June 1, 2021 offer is not attached to the complaint.  Moreover, the terms of the June 1, 2021 offer are not plead verbatim or according to legal effect.  The only terms of the offer letter alleged are the benefits that Plaintiff would receive.  (Complaint ¶ 40.)  For example, there is no allegation as to what in exchange Plaintiff needed to do to accept the employment offer.  Accordingly, Defendants’ demurrer to the thirteenth and fourteenth causes of action is SUSTAINED.

Employment with Defendant: First, Second, Fourth, Fifth, and Fifteenth Causes of Action

            Defendant contends that the first, second, fourth, fifth, and fifteenth causes of action fail because they are premised on an employment relationship, and the specific allegations show Plaintiff was not an employee. 

            “Where a pleading includes a general allegation, such as an allegation of an ultimate fact, as well as specific allegations that add details or explanatory facts, it is possible that a conflict or inconsistency will exist between the general allegation and the specific allegations. To handle these contradictions, California courts have adopted the principle that specific allegations in a complaint control over an inconsistent general allegation. [Citation.] Under this principle, it is possible that specific allegations will render a complaint defective when the general allegations, standing alone, might have been sufficient.”  (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1235–1236.)

            Defendants contend that the complaint fails to allege that an employment relationship between Plaintiff and Defendants existed.  Defendants argue that the complaint alleges that the June 1, 2021 offer letter was conditional, and therefore Plaintiff was not an employee until she started her first full day.  The Court disagrees.

            Here, the complaint repeatedly alleges that Defendants were Plaintiff’s employer.  (See e.g., Complaint ¶¶ 12, 34.)  The complaint alleges that Plaintiff received a formal offer of employment on June 1, 2021. (Id. ¶ 40.)  “Upon Plaintiff's acceptance of the Defendants' offer of employment on June 2, 2021, Defendants advised Plaintiff that she would have to undergo numerous administrative and medical procedures, including, but not limited to, a background check, a drug screening, a physical examination, and the review and completion of various required documents. Defendants advised Plaintiff that she would be required to complete those procedures no later than June 14, 2021; the starting date of her work.”  (Id. ¶ 41.)  Thus, the complaint alleges that Plaintiff accepted Defendants’ offer of employment and was informed of administrative and medical procedures that needed to be done before starting her first full shift.  This clearly establishes an employment relationship as the complaint clearly alleges that Defendants’ engaged Plaintiff to work for them.  (See e.g., Martinez v. Combs (2010) 49 Cal.4th 35, 64 [“To employ, [], under the [Industrial Welfare Commission]'s definition, has three alternative definitions. It means: (a) to exercise control over the wages, hours or working conditions, or (b) to suffer or permit to work, or (c) to engage, thereby creating a common law employment relationship.”], [italics added].) 

            As alleged, the complaint does not concede that the June 1, 2021 offer was conditional on Plaintiff undergoing administrative and medical procedures.  To the contrary as noted above, the complaint alleges that after Plaintiff accepted the offer, Defendants then informed Plaintiff of mandatory employment requirements.  (Complaint ¶ 41.)  Those requirements – as alleged -were not a condition of being employed but rather a condition to staying employed – such as requirements for mandatory trainings for current employees.  Moreover, these allegations are not contrary to the direct and clear allegations that Plaintiff was employed by Defendants.  (Complaint ¶ 12.)

            Defendants also contend that it is clear that the offer letter was conditional due to the allegations in paragraph 55, which states that “Plaintiff was attempting to satisfy Defendants’ employment requirements, including, but not limited to, a drug screening and physical examination, prior to the actual initiation of Plaintiff’s work under the contract.”  (Complaint ¶ 55.)  The term “employment requirement,” while it could imply a condition precedent to being employed could also mean an employment requirement to stay employed, such as with mandatory trainings for current employees. 

            Defendants also contend that the complaint alleges that “Plaintiff’s offer of employment was withdrawn on June 18, 2021, before she began her employment. (Id. ¶ 45.)”  (Motion at p.8:9-10.)  However, this allegation is a quote of a voicemail by Defendants as to how Defendants terminated Plaintiff.  (Complaint ¶ 45, [“on June 18, 2021, at which time she was advised by way of a voicemail from Defendants that her ‘offer had been withdrawn,’ effectively terminating her employment.”].)  Critically these allegations are not contradictory to the claim that Plaintiff was employed by Defendants. 

            Accordingly, Defendants’ demurrer to the first, second, fourth, fifth, and fifteenth causes based on the existence of an employment relationship is OVERRULED

Leave to Amend

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the plaintiff to show the court that a pleading can be amended successfully. (Goodman v. Kennedy, supra, 18 Cal.3d at p.348; Lewis v. YouTube, LLC (2015) 244 Cal.App.4th 118, 226.) 

            As thisis the first time that the court has sustained a demurrer to the complaint on these grounds, the court finds it is proper to allow Plaintiff an opportunity to cure the defects discussed in this order.  (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349; Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1037.)  Moreover, as agreed by the parties, (Waisbren Decl. ¶ 4), Plaintiff may include the additional claims for breach of contract and for failure to reimburse for out-of-pocket expenses.

Conclusion and Order

Based on the foregoing, Defendants Accentcare, Inc. and Accentcare UCLA Health, LLC’s demurrer is SUSTAINED IN PART as to the first cause of action, thirteenth cause of action, and fourteenth cause of action WITH LEAVE TO AMEND.  Defendants’ demurrer is otherwise OVERRULED.

Plaintiff is to file an amended complaint within thirty (30) days.

The case management conference is continued to March 13, 2023 at 8:30 am.

            Moving Parties are to provide notice and file proof of service of such.

DATED: January 5, 2023                                                       ___________________________

                                                                                          Elaine Lu

                                                                                          Judge of the Superior Court