Judge Gail Killefer, Case Number: 23STCV21338, Date: 2024-09-30 Tentative Ruling

TENTATIVE: Defendants’ demurrer is sustained with leave to amend as the eleventh cause of action, and is otherwise overruled. The motion to strike is granted without leave to amend as to references to the word religion and the allegations on Paragraph 15(a) of the SAC, as outlined above. The motion to strike is otherwise granted with leave to amend. Plaintiff is granted 10 days leave to amend. The court sets the OSC RE: Amended Complaint for October 22, 2024, at 8:30 a.m. Defendants to give notice.

On September 5, 2023, Daphne Brown (“Plaintiff”) filed a Complaint against Health Net of California, Inc.; Centene Corporation; Lincoln Financial Group, Inc.; and Does 1 to 100.

The operative Second Amended Complaint (“SAC”) alleges the following twelve causes of action:

1) Discrimination on the Bases of Religion, Disability, and Medical Condition (Gov. Code § 12900, et seq.);

2) Hostile Work Environment Harassment on the Bases of Religion, Disability, and Medical Condition (Gov. Code § 12900, et seq.);

3) Retaliation for Engaging in Protected Activity (Gov. Code § 12900, et seq.);

4) Failure to Provide Reasonable Accommodation (Gov. Code § 12940(a), (i), (m), (n).);

5) Failure to Engage in Interactive Process (Gov. Code § 12940(a), (i), (m), (n).);

6) Failure to Prevent Discrimination, Harassment, or Retaliation (Gov. Code § 12900, et seq.);

Defendants Health Net of California, Inc. and Centene Corporation (hereinafter “Defendants”) filed a demurrer and motion to strike the SAC. Plaintiff opposes the Motion. The matter is now before the court.

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, subd. (a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)¿“To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged.”¿(C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.)¿For the purpose of testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded.¿ (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.)¿A demurrer “does not admit contentions, deductions or conclusions of fact or law.”¿(Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713.)¿¿

¿Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof. (CCP, § 435(b)(1); CRC, rule 3.1322(b).) The court may, upon a motion or at any time in its discretion and upon terms it deems proper: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (CCP, § 436(a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].)¿¿¿¿

“Where the defect raised by a motion to strike or by demurrer is reasonably capable of cure, leave to amend is routinely and liberally granted to give the plaintiff a chance to cure the defect in question.” (CLD Construction, Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1146.) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.)¿¿¿

Demurrer[1]

The court may take judicial notice of “official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States,” “[r]ecords of (1) any court of this state or (2) any court of record of the United States or of any state of the United States,” and “[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (Evid. Code § 452, subds. (c), (d), and (h).) “Taking judicial notice of a document is not the same as accepting the truth of its contents or accepting a particular interpretation of its meaning.” (Joslin v. H.A.S. Ins. Brokerage (1986) 184 Cal.App.3d 369, 374.)

1) Exhibit 1: A true and correct copy of Plaintiff’s Department of Fair Employment and Housing (“DFEH”) Complaint of Discrimination Under the Provisions of the California Fair Employment and Housing Act (“DFEH Complaint”) filed with the DFEH on September 6, 2022.

2) Exhibit 2: A true and correct copy of the letter from the DFEH to Plaintiff enclosing Plaintiff’s Complaint of Discrimination Under the Provisions of the California Fair Employment and Housing Act filed with the DFEH and the DFEH’s Right to Sue Letter addressed to Plaintiff in response to her DFEH Complaint, dated September 6, 2022.

3) Exhibit 3: A true and correct copy of the DFEH’s Right to Sue Letter addressed to Plaintiff in response to her DFEH Complaint, dated September 6, 2022.

4) Exhibit 4: A true and correct copy of Gov. Code § 12960 effective January 1, 2018 to December 31, 2019.

Plaintiff began working for Defendants around 1996. (SAC, ¶ 11.) Plaintiff alleges that in or around 2019, a co-worker Donna Thompson began to harass Plaintiff by taking photos and videos of her. (Id., ¶ 15(b).) Plaintiff also asserts she experienced harassing behavior from her supervisor, Catherin Brontis (“Brontis”). (Id., ¶ 15(c)-(d).)

In 2019 and 2020, Plaintiff’s neck, back, and shoulder pain became worse, and Plaintiff requested medical leave. Defendants initially granted the leave until Brontis informed Plaintiff that additional documentation was needed. When Plaintiff tried to provide the information, she was informed she was not in Defendants’ system. (SAC, ¶ 15(h)-(i). Plaintiff was told that she needed FMLA approval to get back in the system. (Id., ¶ 15(i).) In October 2021, Plaintiff finally received the FMLA paperwork she had requested from Defendants to apply for FMLA leave. (Id., ¶ 16.) Plaintiff submitted the FMLA paperwork but was told it was not approved because she had been terminated. (Id., ¶ 17.)

Plaintiff has now brought this action seeking damages. Defendants demur to the SAC as follows:

Defendants assert that Plaintiff’s DFEH charge failed to follow the pleading requirements outlined in Cal. Code Regs. 2, § 10005(d)(3) & (4) and instead asserted legal conclusions in her DFEH charge without any facts to support the allegations asserted.

An employee must file an administrative complaint with the Department of Fair Employment and Housing within three years from the date the alleged unlawful action occurred, and he or she must file suit within one year of a right-to-sue letter. (Govt. Code, §§ 12960(e), 12965(b).) The charge filed with the DFEH must “set forth the particulars” of the unlawful employment practice. (Gov. Code, § 12960(c).) The California Code of Regulations describes the requirements for obtaining a right-to-sue letter:

(d) To obtain an immediate right-to-sue notice via the department's automated right-to-sue system or by submitting a completed right-to-sue notice packet to the department, an aggrieved person shall file a right-to-sue complaint with the department containing the following:

(1) complainant's name and, where available, address, telephone number and e-mail address;

(2) respondent's name, address and, where available, telephone number and e-mail address. If applicable, the job title and/or capacity in which the respondent is being named also shall be included;

(3) a description of the alleged act or acts of discrimination, harassment or retaliation;

(4) the date or dates each alleged act of discrimination, harassment or retaliation occurred, including the date of the last or most recent alleged act;

(5) each protected basis upon which the alleged discrimination or harassment was based;

(6) for retaliation complaints, the date and type of protected activity in which the complainant engaged;

(7) the complainant's declaration, made under penalty of perjury under the laws of the State of California, that to the best of the complainant's knowledge all information stated is true and correct, except matters stated on information and belief, which the complainant believes to be true;

(8) the signature of the complainant, or an authorized signature, and the date signed, unless the complaint is filed electronically[.]

Defendants assert that Plaintiff’s DFEH charge is insufficiently pled because Plaintiff asserted only conclusory legal statements without facts to support the alleged FEHA violations. Defendants point out that “the DFEH does not review or edit the complaint form to ensure that it meets procedural or statutory requirements.” (RJN, Ex. 2.)

Plaintiff’s DFEH charge states “that on or about September 7, 2021, respondent took the following adverse actions” harassment and discrimination “because of complainant’s. . . disability (physical or mental), medical condition (cancer or genetic characteristic), other, family care or medical leave (cfra). (RJN, Ex. 1 at p. 2 [bold original].) “Complainant experienced retaliation because complainant . . . participated as a witness in a discrimination or harassment complaint, requested or used family care or medical leave (cfra) and as a result was terminated, reprimanded, denied any employment benefit or privilege, denied accommodation for religious beliefs, other, denied work opportunities or assignments, denied family care or medical leave (cfra).” (Id. [bold original].) The DFEH also included the name and address of the entity Defendants. (Id.)

Defendants fail to show what facts are missing that do not give Defendants notice of the FEHA charges alleged against them. In Wills v. Superior Court (2011) 195 Cal.App.4th 143, the appellate court found that the employee’s DFEH administrative complaint was deficient as to the harassment claims because the harassment claim was not included in the DFEH complaint. (Id., at p. 157.) “A claim the OC Court discriminated against Wills by firing her based on her mental disability is distinct and different in nature from a claim Wills's coworkers harassed her during her employment[.]” (Ibid.) Similarly in Okoli v. Lockheed Technical Operations Co. (1995) 36 Cal.App.4th 1607, the appellate court found that the employee failed to exhaust his administrative claims because the claims were not like or reasonably related to those alleged in the DFEH charge. (Id., at p. 1617 [“Since Okoli's complaint added claims that were neither like nor reasonably related to his DFEH claim and were not likely to be uncovered in the course of a DFEH investigation, his retaliation claim is barred by the exhaustion of remedies doctrine.”].)

The rule is “[t]he administrative exhaustion requirement is satisfied if FEHA claims in a judicial complaint are ‘like and reasonably related to’ those in the DFEH complaint [citation] or ‘likely to be uncovered in the course of a DFEH investigation’ [Citation.]” (Clark v. Superior Court (2021) 62 Cal.App.5th 289, 302; see also Guzman v. NBA Automotive, Inc. (2021) 68 Cal.App.5th 1109, 1118.) Having reviewed the Plaintiff’s DFEH charge, the court finds that it sets “forth the particulars” of her FEHA claim. (Gov. Code, § 12960(c).) Defendants have not cited any case law, and the court is aware of no authority, that imposes a heightened pleading standard on DFEH charges that require employees to plead specific facts for the DFEH charge to be validly “pled.” In the absence of such authority, the court will not impose heightened pleading standards on DFEH administrative complaints when the legislature and the DFEH have declined to do so.

Therefore, the demurrer is overruled on the basis that Plaintiff’s DFEH charge is deficiently pled and she failed to exhaust her administrative remedies.

C. 9th, 10th, and 12th Causes of Action - Derivative Causes of Action and Preemption Under Workers’ Compensation Act

Defendants assert that Plaintiff’s 9th, 10th, and 12th causes of action—for negligent hiring, supervision, and retention, wrongful termination, and IIED—fail as they are derivative of her FEHA causes of action. Defendants cite Jennings v. Marralle (1994) 8 Cal.4th 121, 136^{^[2]} and TRW, Inc. v. Superior Court (1994) 25 Cal.App.4th 1834 for the proposition that when a FEHA claim fails there can be no claim for negligence, wrongful termination, or IIED since there is no underlying wrongful conduct. Having reviewed Jennings and TRW, Inc., the Defendants’ proposition is not supported by case law. Moreover, Defendants have failed to show that Plaintiff’s FEHA claims are improperly pled.

Defendants also assert that the 9th, 10th, and 12th causes of action are preempted by the California Workers’ Compensation Act because the claims arise out of the employment relationship. “Where the acts are a normal part of the employment relationship or workers’ compensation process, or where the motive behind the acts does not violate a fundamental policy of this state, then the cause of action is barred” by the workers’ compensation exclusivity bar. (Charles J. Vacanti, M.D., Inc. v. State Comp. Ins. Fund (2001) 24 Cal.4th 800, 812 [internal citations omitted].) “But some claims, including those based on sexual or racial discrimination or other conduct contrary to fundamental public policy, are not subject to the exclusivity provisions of the workers' compensation law.” (Claxton v. Waters (2004) 34 Cal.4th 367, 373.)

Discrimination and harassment claims are not a normal incident of the employment relationship, and a claim for damages under FEHA would not be barred by the exclusive remedy provisions of the Workers’ Compensation Act. (See Accardi v. Superior Court (1993) 17 Cal.App.4th 341, 347.) The Legislature “did not intend that its objective of providing relief from civil rights violations would be defeated by the exclusive remedy provision of the Workers' Compensation Act.” (Flait v. North American Watch Corp. (1992) 3 Cal.App.4th 467, 480.)

Because the 9th, 10th, and 12th causes of action arise out of conduct that is statutorily prohibited, these claims exist outside of the employment environment since they are not a normal part of the employment relationship. Therefore, the 9th, 10th, and 12th causes of action are not prohibited by the exclusive remedies of the Workers’ Compensation Act. (See Accardi, supra, 17 Cal.App.4th at p. 347; Light v. Department of Parks & Recreation (2017) 14 Cal.App.5th 75, 101; Cornell v. Berkeley Tennis Club (2017) 18 Cal.App.5th 908, 945–946.)

Lastly, whether the Defendants' conduct arouse out of routine personnel action and is not extreme or outrageous remains a triable issue of fact given Plaintiff’s harassment and discrimination claims.

Therefore, the demurrer to the 9th, 10th, and 12th causes of action is overruled.

D. 11th Cause of Action - Whistleblower Retaliation (Lab. Code § 1102.5.)

To establish a prima facie case of retaliation under Labor Code § 1102.5, “a plaintiff must show that (1) he engaged in a protected activity, (2) his employer subjected him to an adverse employment action, and (3) there is a causal connection between the two.” (Mokler v. County of Orange (2007) 157 Cal.App.4th 121, 138.)

Defendants assert the 11th cause of action is insufficiently pled because it is conclusory and fails to assert facts showing that Plaintiff reported or complained about any violation of law to Defendants or to her supervisors, what law was complained about, and when the complaint was made.

Plaintiff asserts that her whistleblower retaliation claim is sufficiently pled because she alleges that Defendants retaliated against her because she inquired about her medical leave. (SAC, ¶¶ 15(i), 16, 20.)

The court notes that a retaliation claim under Lab. Code § 1102.5 is statutorily different from FEHA retaliation claims. (Glynn v. Superior Court (2019) 42 Cal.App.5th 47, 55.) As explained by the California Supreme Court, Labor Code § 1102.5 “prohibits an employer from retaliating against an employee for sharing information the employee ‘has reasonable cause to believe ... discloses a violation of state or federal statute’ or of ‘a local, state, or federal rule or regulation’ with a government agency, with a person with authority over the employee, or with another employee who has authority to investigate or correct the violation.” (Lawson v. PPG Architectural Finishes, Inc. (2022) 12 Cal.5th 703, 709.)

Plaintiff needs to allege that she was retaliated against because she disclosed a legal violation to a government agency or person with authority over Plaintiff and/or with authority to investigate or correct the violation. Plaintiff does not allege that she informed a supervisor or someone with authority about the Defendants’ not approving her medical leave in violation of her statutory rights.

Therefore, the demurrer to the eleventh cause of action is sustained with leave to amend.

The court overrules the demurrer to the second and third cause of action on the basis that Plaintiff's harassment and discrimination claims based on religion are barred by the statute of limitations. “A demurrer cannot rightfully be sustained to part of a cause of action or to a particular type of damage or remedy.” (Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1047.) The first and second causes of action are also premised on discrimination and harassment based on Plaintiff’s disability, and Defendants cannot dispose of the entire cause of action on demurrer. Lastly, Plaintiff’s opposition states “Plaintiff intends to dismiss her claims for Discrimination based on Religion and Harassment based on Religion.” (Opp. at p. 1:12-13.)

Defendants move to strike references to religion on the basis that any events alleged to have occurred in 2019 are barred by DFEH’s 3-year statute of limitations. (SAC, ¶ 15(a).) Defendants also seek to strike references to religious discrimination and harassment and other allegations Defendant deems improper as alleged in Paragraph 15 of the Complaint. Plaintiff has failed to oppose the motion to strike and explain why the allegations are relevant to her claim for disability discrimination and violation of CFRA.

· ¶ 15 (a) at page 4: “Beginning in or around 2019 and continuing throughout her employment, Defendants required employees in Brown’s department to work on Sundays.”

· ¶ 15 (a) at page 4: “Brown informed her Manager, Sandra Cruz ("Cruz"), that she could not work on Sundays because she had to go to church.”

· 15 (a) at page 4: “Cruz insisted that Brown work the night shift on Sundays; however, Brown informed her that she attends church both, during the day and at night.”

· ¶ 15 (a) at page 4: “Despite this, Cruz told Brown she had to figure out a way to work through it.”

· ¶ 15 (a) at page 4: “Brown felt she had no choice but to work on Sundays and, thus, missed church to do so on a consistent basis.”

· ¶ 15 (b) at page 4: “In or around 2019, Brown began making complaints regarding a co-worker, Donna Thompson ("Thompson"), being aggressive with her.”

· ¶ 15 (b) at page 4: “This was not the first time Thompson acted this way in the workplace, as other employees had also had negative experiences with her.”

· ¶ 15 (b) at page 4: “However, despite Brown and other employees complaining about Thompson's behavior, nothing was done.”

· ¶ 15 (b) at page 4: “On another occasion, Thompson began harassing Brown by taking photos and videos of her, which made Brown very uncomfortable.”

· ¶ 15 (b) at page 4: “Brown and other employees again complained to supervisor Sheila Moore (“Moore”) and Cruz, stating that they were fearful of their safety given Thompson's aggressive and harassing behavior.”

Defendants’ demurrer is sustained with leave to amend as the eleventh cause of action, and is otherwise overruled. The motion to strike is granted without leave to amend as to references to the word religion and the allegations on Paragraph 15(a) of the SAC, as outlined above. The motion to strike is otherwise granted with leave to amend. Plaintiff is granted 10 days leave to amend. The court sets the OSC RE: Amended Complaint for October 22, 2024, at 8:30 a.m. Defendants to give notice.

[1] Pursuant to CCP §§ 430.41 and 435.5(a), the meet and confer requirement has been met. (Michaels Decl., ¶¶ 7, 9, Ex. A, B.)

[2] Jennings does not have a page 136.