Judge: Frank M. Tavelman, Case: 22BBCV00646, Date: 2023-02-17 Tentative Ruling

Case Number: 22BBCV00646    Hearing Date: February 17, 2023    Dept: A

LOS ANGELES SUPERIOR COURT

NORTH CENTRAL DISTRICT - BURBANK

DEPARTMENT A

DEMURRER AND MOTION TO STRIKE

ALLEGATIONS: 

Burke Mohan (“Plaintiff”) filed suit against Flappers Comedy Club, LLC (“Defendant”) on September 8, 2022, alleging wrongful termination from his employment with Defendant. Plaintiff filed a First Amended Complaint (“FAC”) on November 11, 2022 containing five causes of action: (1) Disability Discrimination, (2) failure to provide a reasonable accommodation, (3) failure to engage in the interactive process, (4) retaliation, and (5) wrongful termination in violation of public policy.

Key to Plaintiff’s causes of action 1, 2, and 3 is the factual allegation that he contracted Covid-19 on June 29, 2022 (FAC ¶13.) Plaintiff alleges that he was instructed to remain off work while testing positive. (Id.) Plaintiff alleges that he tested negative on July 12, 2022 and advised Defendant he was ready to return to work, at which time he was informed of his termination. (Id. ¶ 14.)   

As to causes of action 4 and 5 Plaintiff asserts that Defendant’s manager/head chef (“Kenneth”) came to believe that Plaintiff was engaged in a sexual relationship with Kenneth’s girlfriend. (Id. ¶ 11.) Plaintiff alleges that on June 10, 2022 Kenneth called Plaintiff several times in the early morning. (Id.) Plaintiff does not describe the contents of these calls or even if he answered them. Plaintiff alleges he felt unsafe at work from Kenneth’s behavior, and Plaintiff reported this to Defendant on June 11, 2022. (Id. ¶ 12.)

HISTORY: 

Defendant filed a demurrer and motion to strike portions of the FAC on December 16, 2022. Plaintiff filed an opposition on February 3, 2023. Reply was filed February 9, 2023.

RELIEF REQUESTED:

Defendant demurs to each cause of action in the FAC on grounds that they fail to state a cause of action against Defendant and the allegations are uncertain, vague, and unintelligible.

Defendant moves to strike all portions of the FAC which request punitive damages.  

ANALYSIS: 

I.                    LEGAL STANDARD 

Demurrer

The grounds for a demurrer must appear on the face of the pleading or from judicially noticeable matters.  (C.C.P. § 430.30(a); Blank v. Kirwan (1985) 39 Cal. 3d 311, 318.) A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) The only issue involved in a demurrer hearing is whether the complaint states a cause of action. (Ibid.)

A demurrer assumes the truth of all factual, material allegations properly pled in the challenged pleading. (Blank v. Kirwan, supra, 39 Cal. 3d at p. 318.) No matter how unlikely or improbable, the plaintiff’s allegations must be accepted as true for the purpose of ruling on the demurrer. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.  App. 3d 593, 604.) But this does not include contentions; deductions; conclusions of fact or law alleged in the complaint; facts impossible in law; or allegations contrary to facts of which a court may take judicial notice.  (Blank, supra, 39 Cal. 3d at p. 318.)

Pursuant to C.C.P. §§ 430.10(e) and (f), the party against whom a complaint has been filed may demur to the pleading on the grounds that the pleading does not state facts sufficient to constitute a cause of action, or that the pleading is uncertain, ambiguous and, or unintelligible. It is an abuse of discretion to sustain a demurrer without leave to amend if there is a reasonable probability that the defect can be cured by amendment. (Schifando v. City of Los Angeles (2003) 31 Cal. 4th 1074, 1082.)

Motion to Strike

Motions to strike are used to reach defects or objections to pleadings that are not challengeable by demurrer, such as words, phrases, and prayers for damages. (See C.C.P. §§ 435, 436, and 437.) The proper procedure to attack false allegations in a pleading is a motion to strike. (C.C.P. § 436(a).) In granting a motion to strike made under C.C.P. § 435, “[t]he court may, upon a motion made pursuant to Section 435 [notice of motion to strike whole or part of complaint], or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading.” (C.C.P. § 436(a).) Irrelevant matters include immaterial allegations that are not essential to the claim or those not pertinent to or supported by an otherwise sufficient claim. (C.C.P. § 431.10.) The court may also “[s]trike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” (C.C.P. § 436 (b).)

To succeed on a motion to strike punitive damages allegations, it must be said as a matter of law that the alleged behavior was not so vile, base, or contemptible that it would not be looked down upon and despised by ordinary decent people. (Angie M. v. Superior Court (1995) 37 Cal. App. 4th 1217, 1228-1229.)

II.                 MEET AND CONFER

CCP § 430.41(a) requires that the demurring party meet and confer with the party who filed the pleading that is subject to the demurrer at least five days before the date the responsive pleading is due, by telephone or in person, for the purpose of determining if the parties can resolve the objections to be raised in the demurrer. The demurring party must file and serve a declaration detailing their meet and confer efforts. Failure to meet and confer is not grounds to overrule or sustain a demurrer or grant or deny a motion to strike. (CCP §§ 430.41(a)(4); CCP 435.5(a)(4).)

Upon review of the record the Court is satisfied the meet and confer requirements have been met. (Gole Decl. ¶ 2.)

III.              MERITS

Plaintiff’s First, Second, and Third Causes of Action

Plaintiff’s causes of action for disability discrimination, failure to provide a reasonable accommodation, and failure to engage in the interactive process all arise from his claim of disability.

Plaintiff submits that his experiencing Covid-19 in the period from June 29, 2022 to July 12, 2022 qualifies as a disability under the California Fair Employment and housing Act (“FEHA”). Plaintiff claims that Covid-19 qualifies as a disability in that it “limited his ability to engage in the major life activities of working, leaving the house, socializing, and being within six feet of another person.” (FAC ¶13.) Plaintiff’s only allegations as to the nature of his contraction of Covid-19 were that he experienced related symptoms. Plaintiff alleges that Defendant terminated his employment as a result of his use of disability leave related to Covid-19.

Defendant argues in their motion that Plaintiff has failed to allege sufficient facts supporting that his contraction of Covid-19 qualifies as a disability. Defendant argues that Plaintiff failed to allege facts showing how his contraction of Covid-19 limits a major life activity. Defendant draws analogy to other respiratory ailments such as the common cold and flu, which do not qualify as a disability under FEHA. Defendant argues that while Covid-19 can be a deadly affliction with lasting health consequences, Plaintiff has failed to allege any facts that his contraction of Covid-19 affected him as such, and concludes that Plaintiff has at most alleged a temporary contraction of Covid-19 with no aversion to lasting symptoms.

Plaintiff argues in opposition that the definition of disability under FEHA must be liberally construed as per City of Moorpark v. Superior Court (1998) 18 Cal.4th 1143. Further Defendant’s claim that temporary conditions qualify as disabilities on a case-by-case basis per Diaz v. Federal Express Corp. 373 F.Supp.2d 1034. Plaintiff argues that the ultimate factor is impairment of major life function, which plaintiff argues here is the ability to work.

2 CCR §11065(d)(9)(B) specifies that disability under the FEHA does not include “conditions that are mild, which do not limit a major life activity, as determined on a case-by-case basis. These excluded conditions have little or no residual effects, such as the common cold; seasonal or common influenza; minor cuts, sprains, muscle aches, soreness, bruises, or abrasions; non-migraine headaches, and minor and non-chronic gastrointestinal disorders.”

The Court notes that both Plaintiff and Defendant rely on cases which speak to the ADA definition of disability, which is different from that of FEHA. ADA disability requires that an impairment “substantially limits” a major life activity, whereas FEHA only requires a limit on a major life activity.  The ADA standard of “substantially limits” and the FEHA standard of simply “limits” are distinguishable.   Regardless, the Court finds that Plaintiff has not alleged sufficient facts, even by this more liberal standard. Plaintiff has not alleged that his contraction of Covid-19 was more than a mild condition. Similarly, Plaintiff has alleged no facts that his contraction of Covid-19 presented any residual effects. Plaintiff alleges that he contracted Covid-19, experienced symptoms, and stayed home from work. Plaintiff then alleges that he no longer tested positive for Covid and was prepared to return to work on July 12, 2022. The Court does not find that these allegations are sufficient to establish that Plaintiff possessed the disability necessary to state his first, second, and third causes of action. It may be possible for Plaintiff to plead facts showing his contraction of Covid-19 arose to the level of disability, but he has not done so here. As such, the Court SUSTAINS the demurrer to these causes of action with leave to amend.

Plaintiff’s Fourth Cause of Action

Defendant argues that the Plaintiff’s causes of action for retaliation and wrongful termination fail to state sufficient facts as to Plaintiff’s engagement in a protected activity.

“To establish a prima facie case of retaliation under the [Fair Employment and Housing Act] FEHA, a plaintiff must show (1) he or she engaged in a ‘protected activity,’ (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer’s action.” (Meeks v. Autozone, Inc. (2018) 24 Cal.App.5th 855.)

Plaintiff argues that the Defendant’s actions violated Plaintiff’s protected activity under Labor Code §6310(b).   Section 6310(a) provides that, an employee may not be discharged because the employee made a complaint to “the division, other governmental agencies having statutory responsibility or assisting the division with reference to employee safety.   “Division” refers to the Division of Occupational Safety and Health.  (Labor Code §6305.1); “Safety” refers to danger to life, safety or health of employees.  (Labor Code §6306).

The court in Nealy v. City of Santa Monica (2015) 234 Cal.App.4th 359, 380-81, defined protected activity as follows:  

“FEHA makes it unlawful for the employer to discharge or discriminate against an employee because he or she has ‘opposed any practices forbidden under this part because the person has filed a complaint, testified, or assisted in any proceeding under this part.’ (Gov. Code, § 1290.4, subd. (h).) Thus, protected activity takes the form of opposing any practices forbidden by FEHA or participating in any proceeding conducted by [the Department of Fair Employment and Housing] or the Fair Employment and Housing Council (FEHC). [Citation.] Opposing practices forbidden by FEHA includes seeking the advice of the DFEH or FEHC; assisting or advising any person in seeking the advice of the DFEH or FEHC, opposing employment practices the employee reasonably believes to exist and believes to be a violation of FEHA; participating in an activity perceived by the employer as opposition to discrimination; or contacting, communicating with, or participating in the proceeding of a local human rights or civil rights agency regarding employment discrimination.”

Defendant argues that Plaintiff’s voicing fear of workplace safety does not qualify as a protected activity. Defendant cites to Muller v. Auto. Club of So. Cal. (1998) 61 Cal.App.4th 431, where the court held that a plaintiff claiming retaliation for voicing fear of workplace safety must also evidence that the workplace was unsafe. The Court finds Muller to be procedurally inapposite to the current case. Muller concerned a standard of proof on a motion for summary judgment, where the plaintiff is tasked with producing evidence of a triable issue of fact. Here, on demurrer Plaintiff must only allege sufficient facts to support his cause of action. Plaintiff alleges that he engaged in a protected activity when he reported to Defendant that he felt unsafe in the workplace due to the behavior of Kenneth.

However, the Court still finds that Plaintiff has not alleged facts that he engaged in a protected activity under FEHA. Plaintiff does not allege that he filed a complaint, testified, or assisted at any proceeding. Plaintiff does not allege that he consulted with DFEH or FEHC or any of the other actions considered to be “opposing practices forbidden by FEHA. Plaintiff’s allegation that he reported an unsafe work environment to Defendant, his employer, is not an allegation of protected activity under FEHC.

It may be possible for Plaintiff to plead facts that he engaged in a protected activity. As such, the Court SUSTAINS the demurrer with respect to the fourth cause of action with leave to amend.

Plaintiff’s Fifth Cause of Action

“The elements of a claim for wrongful discharge in violation of public policy are (1) an employer-employee relationship, (2) the employer terminated the plaintiff’s employment, (3) the termination was substantially motivated by a violation of public policy, and (4) the discharge caused the plaintiff harm. It is well established that a termination premised on an employee’s refusal to violate either a statute or an administrative regulation may support a claim for wrongful termination in violation of public policy.” (Nosal-Tabor v. Sharp Chula Vista Medical Center (2015) 239 Cal.App.4th 1224.)

Defendant argues that Plaintiff has failed to allege facts sufficient to support his claim of wrongful termination in violation of public policy. Defendant argues that Plaintiff’s claim of disability and his claim of retaliation serve as the basis for his wrongful termination claim. Defendant argues that because Plaintiff has failed to show a disability or retaliatory act, then they have not alleged a violation of public policy. Defendant argues further that Plaintiff must prove a causal nexus between his report of an unsafe work environment and the adverse action taken against him. Plaintiff does not brief this issue separately in his opposition.

In Franklin v. The Monadnock Co. (2007) 151 Cal. App. 4^th 252, the court discussed “Labor Code section 6400 et seq. and Code of Civil Procedure section 527.8, when read together, establish an explicit public policy requiring employers to provide a safe and secure workplace, including a requirement that an employer take reasonable steps to address credible threats of violence in the workplace.  (Franklin v. The Monadnock Co. (2007) 151 Cal.App.4th 252, 259.) “A credible threat is one that an employee reasonably believes will be carried out, so as to cause the employee to fear for his or her safety or that of his or her family. (Id. at 260.)

The Court finds that Plaintiff has not alleged facts establishing a termination in violation of public policy. Plaintiff alleges that Kenneth came under the impression that Plaintiff and Kenneth’s girlfriend were romantically involved. Plaintiff claims he later received eight phone calls from Kenneth and that he felt unsafe. Plaintiff’s allegations do not specify whether he answered these calls or whether Kenneth threatened violence against him. Plaintiff alleges the calls were intended to “interrogate him” but does not state that a conversation took place. The Court finds that receiving phone calls by itself does not constitute a credible threat of violence, as Plaintiff does not allege any threat of violence was made to him by Kenneth.

The Court finds that Plaintiff may be able to allege facts that he was threatened with violence by Kenneth. As such, Defendant’s demurrer is SUSTAINED as to the fifth cause of action with leave to amend

Motion to Strike Punitive Damages

Cal Civil Code § 3294 (a) states “In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.”

Defendant asks the court to strike all requests for punitive damages from the FAC. Plaintiff’s request for punitive damages stems from the allegations in each cause of action. The Court has granted demurrer as to each cause of action with leave to amend and as such, the motion to strike punitive damages from the FAC is mooted in its entirety.

IV.              CONCLUSION

The demurrer to all causes of action is sustained with 20 days’ leave to amend. The motion to strike as to Plaintiff’s claims for punitive damages is moot.

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RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records. 

ORDER 

Flappers Comedy Club, LLC’s Demurrer and Motion to Strike came on regularly for hearing on February 17, 2023, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows: 

THE DEMURRER AS TO ALL CAUSES OF ACTION IS SUSTAINED WITH 20 DAYS’ LEAVE TO AMEND.

THE MOTION TO STRIKE IS MOOT IN ITS ENTIRETY.

UNLESS ALL PARTIES WAIVE NOTICE, DEFENDANT SHALL GIVE NOTICE.

IT IS SO ORDERED. 

DATE:  February 17, 2023                            _______________________________ 

                                                                        F.M. TAVELMAN, Judge 

Superior Court of California 

County of Los Angeles