Judge Gail Killefer, Case 22STCV24843 2023-03-08 Tentative Ruling

MOTION: Defendant’s Demurrer to the Complaint; Defendant’s Motion to Strike Portions of the Complaint

TENTATIVE: Defendant’s demurrer is sustained. Defendant’s motion is also granted. Plaintiff is granted 20 days leave to amend. Defendant is to give notice.

This action arises out of the employment of Bryan Davis (“Plaintiff”) with Defendant Influencer Design House, LLC (“IDH”) as a warehouse associate. IDH hired Plaintiff hired in May 2021 and terminated his employment on February 25, 2022. Plaintiff alleges his supervisor, Defendant Stephanie Betancourt (“Betancourt”) harassed Plaintiff with unwelcome sexual advances and created a hostile work environment. The Complaint alleges Plaintiff complained of this harassing environment in December 2021, and IDH terminated Betancourt’s employment. On February 15, 2022, Plaintiff alleges he injured his knee moving boxes and was not allowed to leave to seek medical attention. On February 16, 2022, Plaintiff was admitted to the hospital and placed off work from February 16 to February 22, 2022. The Complaint alleges Plaintiff returned to work on February 24, 2022, and was terminated on February 25, 2022.

On October 7, 2022, IDH filed a demurrer to the initial complaint. On November 10, 2022, Plaintiff filed the operative First Amended Complaint (“FAC”). The FAC alleges ten causes of action: (1) quid pro quo sexual harassment in violation of FEHA; (2) hostile work environment sexual harassment in violation of FEHA; (3) failure to prevent sexual harassment in violation of FEHA—against IDH; (4) disability discrimination in violation of FEHA—against IDH; (5) failure to provide reasonable accommodation in violation of FEHA—against IDH; (6) failure to engage in the good faith interactive process in violation of FEHA—against IDH; (7) retaliation in violation of FEHA—against IDH; (8) failure to prevent discrimination and retaliation in violation of FEHA—against IDH; (9) violation of whistleblower protections pursuant to Labor Code section 1102.5—against IDH; and (10) wrongful termination in violation of public policy.

Defendant IDH now demurs to the third, fourth, fifth and sixth causes of action of the FAC and move to strike portions of the FAC. Plaintiff opposes both motions.

A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice. (CCP § 430.30(a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The purpose of a demurrer is to challenge the sufficiency of a pleading “by raising questions of law.” (Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.) The court “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. . . .” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525 (Berkley).) “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” (CCP § 452; see also Stevens v. Sup. Ct. (1999) 75 Cal.App.4th 594, 601.) “When a court evaluates a complaint, the plaintiff is entitled to reasonable inferences from the facts pled.” (Duval v. Board of Trustees (2001) 93 Cal.App.4th 902, 906.)

The general rule is that the plaintiff need only allege ultimate facts, not evidentiary facts. (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550.) “All that is required of a plaintiff, as a matter of pleading, even as against a special demurrer, is that his complaint set forth the essential facts of the case with reasonable precision and with sufficient particularity to acquaint the defendant with the nature, source and extent of his cause of action.” (Rannard v. Lockheed Aircraft Corp. (1945) 26 Cal.2d 149, 156-157.) “[D]emurrers for uncertainty are disfavored and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.” (Mahan v. Charles W. Chan Ins. Agency, Inc. (2017) 14 Cal.App.5th 841, 848, fn. 3 (Mahan), citing Lickiss v. Fin. Indus. Regulatory Auth. (2012) 208 Cal.App.4th 1125, 1135.) In addition, even where a complaint is in some respects uncertain, courts strictly construe a demurrer for uncertainty “because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.)

Demurrers do not lie as to only parts of causes of action where some valid claim is alleged but “must dispose of an entire cause of action to be sustained.” (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119.) “Generally it is an abuse of discretion to sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment.” (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.)

The third cause of action is for failure to provide an environment free from discrimination and retaliation under Government Code § 12940. (Gov’t Code, § 12940(k).) “An actionable claim under section 12940, subdivision (k) is dependent on a claim of actual discrimination: ‘Employers should not be held liable to employees for failure to take necessary steps to prevent such conduct, except where the actions took place and were not prevented.’ [Citation]” (Scotch v. Art Inst. of California (2019) 173 Cal.App.4th 986, 1021.)

To establish a prima facie case for discrimination under the FEHA, a plaintiff must show that “(1) [she] was a member of a protected class, (2) [she] was qualified for the position [she] sought or was performing competently in the position [she] held, (3) [she] suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some other circumstance suggests discriminatory motive.” (Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 355.) FEHA liability for discrimination requires proof that the discrimination was a substantial factor in an employment decision. (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 232.)

It is unlawful under FEHA for employers to “fail to make reasonable accommodation for the known physical or mental disability of an... employee.” (Gov. Code § 12940(m).) “The elements of a failure to accommodate claim are (1) the plaintiff has a disability under the FEHA, (2) the plaintiff is qualified to perform the essential functions of the position, and (3) the employer failed to reasonably accommodate the plaintiff's disability. [Citation.]” (Scotch v. Art Inst. of Cal.-Orange County, Inc. (2009) 173 Cal.App.4th 986, 1009-10.) “While a claim of failure to accommodate is independent of a cause of action for failure to engage in an interactive dialogue, each necessarily implicates the other.” (Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34, 54.)

Government Code § 12940(n) requires employers to engage in a good faith interactive process to determine effective reasonable accommodations, if any, “in response to a request for reasonable accommodation by an employee . . . with a known physical or mental disability . . . .” (Raine v. City of Burbank (2006) 135 Cal.App.4th 1215, 1222.) Generally, “[t]he employee bears the burden of giving the employer notice of the disability. [Citation.]” (Ibid.) To prevail on a claim under section 12940(n) for failure to engage in the interactive process, an employee must identify a reasonable accommodation that would have been available at the time the interactive process should have occurred." (Scotch v. Art Institute of California (2009) 173 Cal. App. 4th 986,1018-1019.)

Defendant IDH contends the third, fourth, fifth, and sixth causes of action are insufficiently pled as the allegations in the FAC show: “Defendant [IDH] did take reasonable steps to prevent harassment occurring by firing Defendant Betancourt after Plaintiff’s complaint about her;” Plaintiff’s request for a short leave was granted and the FAC fails to show how Plaintiff was a member of a protected class with a disability; and Plaintiff did not identify which accommodations were requested and denied by Defendant IDH. (Dem., 4-8.)

In opposition, Plaintiff contends the FAC shows strict liability for IDH based on the Betancourt’s harassment and raises questions of material fact regarding “whether Defendant Influencer satisfied their statutory obligations” under FEHA “by providing sexual harassment training to their employees and doing all they can to ensure a harassment-free workplace.” (Opposition, 2.) Plaintiff further points to allegations in the FAC which allege the ongoing harassment Plaintiff suffered at the hands of Defendant Betancourt during his employment. (Opp., 4.) Plaintiff further contends that the FAC alleges the workplace injury limited Plaintiff’s ability “to perform a major life activity, which was working” and point to IDH’s alleged ignoring of Plaintiff’s attempts to inform his employer of his medical leave, as well as Plaintiff’s termination “the next day in direct retaliation for his disability and medical leave.” (Opp., 6-7.) Lastly, Plaintiff points to IDH’s supervisors “ignoring Plaintiff’s texts” as a failure “to initiate an interactive process and never giving Plaintiff a response as to whether his time off was approved or not...” (Opp., 7-8.)

Plaintiff fails to explain, however, whether IDH’s not responding to his text messages are a denial of a request for accommodation, and further fails to explain whether IDH had a duty to initiate the interactive process during his medical leave. Further, while Plaintiff points to the temporal proximity between his return and termination to infer a causal relationship, Plaintiff’s conclusory claims regarding a “direct retaliation” motive are not taken as true at this demurrer stage without sufficient factual allegations in support.

“In or around December 2021, Plaintiff complained to the owner of [IDH] about Defendant Betancourt. After these complaints, Susan Rosen had no choice but to fire [Betancourt]. However, since Susan Rosen and Betancourt were close friends, and Susan Rosen, along with other employees of [IDH] held [Betancourt] in high regard, Susan Rosen was angry at the fact that Plaintiff complained about Defendant Betancourt. As such, Defendant [IDH’s] treatment of Plaintiff changed drastically in retaliation to his complaints. For example, Plaintiff’s coworkers began to isolate him and would not speak to him. Further, Susan Rosen began to micromanage Plaintiff and falsely accuse him of doing things wrong, which she had not previously done before.

On or about February 16, 2022, Plaintiff went to the hospital where he was placed off work from on or about February 16, 2022 to on or about February 22, 2022. The same Day Plaintiff text messaged his interim supervisor Jackie letting her know that he would not make it in to work on February 16, 2022. ... Jackie did not respond.

Plaintiff returned to work on February 24, 2022. Plaintiff met with Susan Rosen and gave her a copy of his doctor’s note.

On February 25, 2022, Plaintiff received a text message from Jordan Rosen, the owner’s son, saying that Defendant was terminating Plaintiff. Plaintiff’s requests/need for medical leave was apparently the last straw for Defendant [IDH], who terminated him in direct retaliation to his complaints of the unlawful harassment, discrimination, and retaliation he faced, as well his [sic] needs/requests for medical leave to recover from a disability.” (FAC ¶¶17-23.)

Here, the court agrees with Defendant that these claims are insufficiently pled. Namely, the court finds the FAC is rife with conclusory contentions regarding Defendant IDH’s motivations following Betancourt’s termination, during Plaintiff’s medical leave, and in Plaintiff’s termination. A “demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the pleading, or the construction of instruments pleaded, or facts impossible in law.” (S. Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732 [internal citations omitted].) Plaintiff here only includes conclusions in his pleadings regarding Defendant’s conduct, which if not taken as true for the purposes of this demurrer hearing, shows a complete lack of factual allegations to establish these FEHA claims. Plaintiff fails to explain what accommodation was requested which Defendant denied, fails to explain how Defendant did not act to prevent harassment following Betancourt’s termination, and further fails to allege sufficient factual contentions to show he suffered from a qualifying disability to impose a duty on IDH to initiate the good faith, interactive process pursuant to FEHA.

In sum, the court finds that the third, fourth, fifth, and sixth causes of action are insufficiently pled.

For these reasons, Defendant’s demurrer to the third, fourth, fifth, and sixth causes of action are sustained.

Defendant’s demurrer is sustained. Plaintiff is granted 20 days leave to amend. Defendant is to give notice.

Pursuant to CCP § 436, “the court may, upon a motion made pursuant to Section 435, 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. (b) Strike 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.” The grounds for a motion to strike must “appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.” (CCP § 437.)

Motions to strike are used to challenge defects in the pleadings not subject to demurrer. (Ferraro v. Camarlinghi (2008) 161 Cal.App.4th 509, 529 [recognizing that an objection that the complaint failed to state facts sufficient to constitute a cause of action is ground for a general demurrer, not a motion to strike.].) Any party may move to strike the whole or any part of a pleading within the time allotted to respond to the pleading. (CCP § 435(b)(1).) The allegations of a complaint “must be liberally construed, with a view to substantial justice between the parties.” (CCP § 452.) The court “read[s] allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume[s] their truth.” (Clauson v. Sup. Ct. (1998) 67 Cal.App.4th 1253, 1255.)

Plaintiff may recover damages “in an action from breach “not arising from contract” if Plaintiff proves by clear and convincing evidence that Defendant acted with malice, oppression, or fraud. (Civ. Code, § 3294(a).) “Malice means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.”¿ (Civ. Code, § 3294(c)(1).)¿ “Oppression’ means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.”¿ (Civ. Code, § 3294(c)(2).)¿ “Fraud means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.”¿ (Civ. Code, § 3294(c)(3).)¿¿A¿plaintiff’s “conclusory characterization of defendant’s conduct as intentional, willful and fraudulent is a patently insufficient statement of ‘oppression, fraud,¿or malice, express or implied,¿within the meaning of section 3294.”¿ (Brousseau v. Jarrett¿(1977) 73 Cal.App.3d 864.)¿

Defendant contends that the FAC’s allegations regarding punitive damages and prayer for punitive damages must be stricken because the FAC fails to plead facts demonstrating how Defendant IDH acted with fraud, oppression or malice. (Motion, 6-10.) Additionally, Defendant IDH contends that the FAC is insufficiently pled because it does not allege that any officer, director, or managing agent of IDH ratified the conduct alleged in the FAC. (Motion, 9-10.)

In opposition, Plaintiff contends that the FAC is sufficiently pled to support a claim for punitive damages because the FAC alleges that managing agents of IDH violated FEHA laws and Plaintiff’s workplace rights were violated by the discriminatory, harassing, and retaliatory conduct as alleged. (Opposition, 2-6.)

The court finds that the FAC is insufficiently pled to support allegations of punitive damages. As explained above, the FAC’s conclusory language regarding IDH’s conduct, as well as their intentions in alleging acting against Plaintiff, are insufficient to support the FEHA claims, and therefore insufficiently pled to support claims for punitive damages on the basis of malicious or oppressive conduct. These allegations do not sufficiently allege that Defendants acted with oppression, malice or fraud for purposes of a motion to strike.

Defendant’s motion is granted. Plaintiff is granted 20 days leave to amend. Defendant is to give notice.

[1] Defendant IDH submits the declaration of their counsel, Sachiyo Y. Miller (“Miller”), in support of the instant demurrer and motion to strike. Miller attests that on December 7, 2022, counsel sent Plaintiff’s counsel a meet and confer letter outlining the arguments raised in defendant’s demurrer and motion to strike. (Miller Decl. ¶ 2, Ex. A.) The parties corresponded through email but failed to come to an agreement. (Miller Decl. ¶¶ 3-6, Ex. A-B.) The Miller Declaration is sufficient for purposes of CCP §§ 430.41 and 435.5.