Judge: Gary I. Micon, Case: 21CHCV00467, Date: 2025-02-28 Tentative Ruling
Case Number: 21CHCV00467 Hearing Date: February 28, 2025 Dept: F43
Dept. F43
Date: 02-28-25
Case # 21CHCV00467, Silvas v. ProHealth
Professional Servs., LLC, et al.
Trial Date: None set.
DEMURRER AND MOTION
TO STRIKE
MOVING PARTIES: Defendants ProHealth
Professional Services, LLC, Regency Surgery Center, Central Valley Occupational
Medical Group, Inc., Pro-Health Valley Occupational Medical Group, Inc., and
Sean Younai
RESPONDING PARTY: Plaintiff Vanessa Silvas
RELIEF REQUESTED
Order sustaining demurrer to the entire Second
Amended Complaint.
RULING: Demurrer
is sustained, in part, regarding the Ninth, Twelfth, and Thirteenth causes of
action, with leave to amend the Ninth and Twelfth causes of action. Demurrer is overruled, in part, regarding the
Eighth, Tenth, Eleventh, Fourteenth, and Fifteenth causes of action.
No motion to strike was filed with the
demurrer.
SUMMARY OF ACTION
This is an employment law case arising from
Plaintiff Vanessa Silvas’ (Plaintiff) alleged wrongful termination.
Plaintiff filed her suit against defendants ProHealth
Professional Services, LLC, Regency Surgery Center, LLC, Regency Surgery Center
Corp., Central Valley Occupational Medical Group, Inc. (CVOMG), ProHealth
Valley Occupational Medical Group, Inc., and Sean Younai on June 22, 2021. Plaintiff alleges causes of action for (1)
failure to provide meal periods; (2) failure to provide rest periods; (3)
failure to pay overtime; (4) failure to pay all wages; (5) failure to pay
waiting time penalties; (6) failure to provide accurate itemized wage
statements; (7) unfair business practices; (8) intentional infliction of
emotional distress; (9) racial discrimination; (10) sexual discrimination; (11)
sexual harassment; (12) retaliation; (13) failure to prevent discrimination;
(14) wrongful termination in violation of the Fair Housing and Employment Act,
and (15) wrongful termination in violation public policy.
Plaintiff alleges she worked for Defendants
as a Director of Marketing. Plaintiff
alleges that after defendants ProHealth Occupational and Valley Occupational merged
into one entity, Plaintiff’s tasks responsibilities increased immensely, and
she was subjected to sexual harassment and racial discrimination which led to a
panic attack. While Plaintiff took
medical leave to recover from the panic attack, Defendants continued to harass
Plaintiff and terminated her employment.
On October 13, 2023, the court granted
Defendants’ motion for judgment on the pleadings and ordered Plaintiff to either
substitute the trustee from her bankruptcy case as the real party in interest,
or secure proof of abandonment of the claims.
On November 9, 2023, Plaintiff filed a First Amended Complaint (FAC) and
attached a declaration from Plaintiff’s counsel and what is purported to be an
email from Plaintiff’s bankruptcy trustee, Diane Weil. Defendants demurred to the FAC contending among
others that Plaintiff failed to follow the court’s October 13, 2023
order for Plaintiff to file an FAC substituting in the bankruptcy Trustee or
securing proof of abandonment of claims against her. After finding the email insufficient, the court
continued the demurrer and ordered the parties to file and serve supplemental
briefs on the proof of abandonment issue.
At the July 18, 2024 demurrer hearing, the
court found that Plaintiff failed to present sufficient proof of abandonment
because Plaintiff failed to authenticate the email from the bankruptcy trustee
or to provide other documents showing her bankruptcy case was closed. The court sustained the demurrer with leave
to amend to allow Plaintiff another opportunity to present proof of abandonment
and to file a second amended complaint by August 19, 2024.
Plaintiff filed her Second Amended Complaint
(SAC) on August 19, 2024 alleging the same causes of action including several
under the Fair Employment and Housing Act (FEHA). The SAC also includes new allegations:
Plaintiff filed for chapter 7 bankruptcy on October 15, 2020. (SAC, ¶ 7.)
Plaintiff listed a “wrongful firing” claim in the Schedules she filed
with her bankruptcy petition. (SAC, ¶
8.) Attorney Diane C. Weil was appointed
as trustee until she was discharged by the bankruptcy court on October 29,
2021. (SAC, ¶ 7.) Attorney Weil reviewed Plaintiff’s Schedules
and conducted an examination under oath during a meeting of Plaintiff’s creditors,
after which she filed a “Report of No Distribution” in Plaintiff’s bankruptcy
case on July 22, 2021. (SAC, ¶ 8.) The bankruptcy court closed Plaintiff’s
bankruptcy case on October 29, 2021.
(SAC, ¶ 10.) Plaintiff’s counsel
confirmed the bankruptcy case was closed when they contacted Attorney Weil in
October 2023. (SAC, ¶ 11.) Upon Plaintiff’s counsel’s request, Attorney
Weil asked the Office of the United States Trustee about re-opening Plaintiff’s
bankruptcy case, but the Office decided not to reopen the case. (SAC, ¶ 11.)
Defendants filed a demurrer and motion to
strike the SAC.[1] Plaintiff opposed, and Defendants filed a
reply.
MEET
AND CONFER
Before filing a demurrer, the parties must
meet and confer “in person, by telephone, or by video conference.” (Code Civ. Proc., § 430.41, subd. (a).) The moving party must file and serve a meet
and confer declaration stating either: (1) the means by which the parties met
and conferred, that the parties did not reach an agreement resolving the issues
raised in the demurrer; or (2) that the party who filed the pleading subject to
the demurrer failed to respond to the meet and confer request or failed to meet
and confer in good faith. (Code Civ.
Proc., §§ 430.41, subd. (a)(3).)
Defense counsel claims she met and conferred
with Plaintiff’s counsel on September 11, 2024 and discussed the grounds for a
demurrer and motion to strike.
(Declaration of Freda Tjoarman, ¶ 9.)
Defense counsel received an automatic reply that Attorney Grau was no
longer with Plaintiff’s firm but never heard back from Plaintiff’s other
attorneys even after sending a follow-up email on September 17, 2024. (Id., Exh. 5.)
EVIDENTIARY OBJECTIONS
Defendants’ Evidentiary Objections to the
Declaration of Diane C. Weil submitted with the SAC:
Sustained: 4
Overruled: 1 (exhibit A bankruptcy docket),
2, 3, 5
Plaintiff’s Evidentiary Objections to the
Declaration of Lauren Katunich:
Sustained: 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11
Overruled: None
REQUEST FOR JUDICIAL NOTICE
Plaintiff’s Request for Judicial Notice: Plaintiff has requested that the Court take judicial
notice of the Tolling Agreement between Plaintiff and Defendant ProHealth.
Generally, the existence of a private
contract or agreement cannot be established through judicial notice under Evidence
Code section 452, subdivision (h), when the opposing party protests. (Travelers Indemnity Co. of Connecticut v.
Navigators Specialty Insurance Co. (2021) 70 Cal.App.5th 341, 354-355
[declining judicial notice of insurance policy in demurrer context because plaintiff
objected to the trial court considering the policy].)
Defendants oppose the court’s consideration
of the Tolling Agreement. (Reply – Defs.
Objection to Pl.’s RJN.) Further, the
Tolling Agreement is not a public record of which the court may take judicial notice,
and the agreement is in dispute.
Accordingly, the court declines to take
judicial notice of the Tolling Agreement.
The court also takes judicial notice of the bankruptcy
petition’s existence and contents.
SUMMARY OF ARGUMENTS
Defendants demur to the SAC on the basis that
Plaintiff failed to follow the court’s previous orders granting Plaintiff
several opportunities to either substitute in the bankruptcy trustee or to
provide admissible evidence that the trustee had abandoned Plaintiff’s
“wrongful firing” claim. Defendant
contends that Plaintiff again fails to provide sufficient proof of abandonment
and lacks standing to bring her claims because the August 16, 2024 Declaration
from Ms. Weil is insufficient proof of abandonment of Plaintiff’s claims in
this case. Additionally, Defendants
contend that Plaintiff’s FEHA and FEHA-derivative claims are time-barred, that
Plaintiff failed to exhaust administrative remedies against defendants Regency
and CVOMG, and that the SAC fails to state sufficient facts to constitute the
eighth, ninth, twelfth, thirteenth, fourteenth, and fifteenth causes of
action. Further, the bankruptcy court is
the forum for determining whether Plaintiff adequately described her “wrongful
firing” claim in her bankruptcy schedules to give creditors notice of the
extent of the claim.
Plaintiff filed an opposition contending that
Defendants attempt to delay this case through abuse of discovery rules and
attempt to relitigate issues the court already settled. Whether the trustee abandoned Plaintiff’s
“wrongful firing” claim is governed by 11 U.S.C. § 554(c) because Plaintiff’s
bankruptcy estate closed before Trustee Weil administered the claim. Trustee Weil’s declaration and the bankruptcy
docket attached to the SAC is sufficient to prove the bankruptcy estate is
closed. Regarding whether Plaintiff
failed to exhaust administrative remedies or filed this case after the statute
of limitations tolled is governed by the tolling agreement which the court has
already stated it would not address at the pleading stage due to the need for
extensive evidence to make factual findings.
Finally, Defendants cannot avoid addressing the merits of Plaintiff’s
claims through procedural maneuvering.
In reply, Defendants reiterate the same
arguments but contend that the bankruptcy court is the proper court to
determine whether Plaintiff provided sufficient detail in her Schedule to
inform Trustee Weil and the creditors
about the “wrongful firing” claim. If a
claim is not properly listed in the bankruptcy schedules, it remains part of
the bankruptcy estate and cannot be pursued by the debtor without formal
abandonment by the trustee.
ANALYSIS
Demurrer
A¿party may respond to a pleading against it by demurrer
based on any single or combination of eight enumerated grounds,
including¿that¿“the pleading does not state facts sufficient to constitute a
cause of action” and is uncertain, meaning “ambiguous and unintelligible.” (Code Civ. Proc., § 430.10, subds. (e),
(f).) The grounds for demurring must be
apparent from either the face of the complaint or a matter of which the court
may take judicial notice. (Code Civ.
Proc., § 430.30, subd. (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.) “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.” (Code Civ. Proc., § 452.) 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.)
In applying these standards, the court liberally construes the complaint
to determine whether a cause of action has been stated. (Picton v. Anderson Union High School
Dist. (1996) 50 Cal.App.4th 726, 733.)
1. Bankruptcy
lack of standing - Entire complaint
Defendants argue that Plaintiff completely lacks standing
to bring its claims because Plaintiff filed a SAC without either substituting
in the bankruptcy trustee or providing proof of abandonment. The bankruptcy
trustee must follow the procedures in federal bankruptcy procedure rule 6007(a)
in order to present proof of abandonment.
Plaintiff attached a declaration from trustee Weil which states
Plaintiff’s schedule included in the bankruptcy petition listed a “wrongful
firing” claim. Even though a bankruptcy
docket is attached to the declaration, Trustee Weil never states that the claims
in the SAC are the claims in the bankruptcy schedule. Weil’s declaration is not proof of
abandonment because the “wrongful firing” claim Plaintiff listed in her
bankruptcy schedules referred to a worker’s compensation claim valued at
$3,000.00 rather than the claims she brings in her SAC valued at $2,000,000.00.
Plaintiff opposes contending that 11 U.S.C. § 554(c) is
the appropriate provision to govern abandonment of Plaintiff’s claim as held by
the court in its July 18, 2024 ruling.
The court ordered Plaintiff to provide proof by way of admissible
evidence or judicial notice that her claim has been abandoned. The attached Weil Declaration and bankruptcy
docket show that Plaintiff listed a “wrongful firing” claim in her bankruptcy
schedule, that Trustee Weil did not administer the wrongful firing claim, and
that the bankruptcy case is now closed. Section
554(c) applies, and the wrongful termination claim was abandoned by operation
of law upon closure of the bankruptcy case.
“[A]ny property scheduled under section 521(a)(1) of this
title not otherwise administered at the time of the closing of a case is
abandoned to the debtor and administered for purposes of section 350 of this
title.” (11 USC § 554(c); In re
Stevens (9th Cir. 2021) 15 F.4th 1214, 1215.) The property must be disclosed on a “literal schedule”
not in the statement of financial affairs.
(In re Stevens, supra, 15 F.4th at p. 1215; 11 U.S.C. §
521(a)(1)(B)(i).) “Failure to list an
interest on a bankruptcy schedule leaves that interest in the bankruptcy
estate.” (In re Stevens, supra, 15 F.4th at p. 1218; Parker
v. Wendy’s Int’l, Inc. (11th Cir. 2004)365 F.3d 1268, 1272.) Anything else, such as “knowledge of the
trustee” through other means, is not enough to show a claim is listed in the
schedule. (In re Stevens, supra,
15 F.4th at p. 1219.)
A bankruptcy debtor has a duty to list all claims in
bankruptcy schedules including those “potential causes of action” which the
debtor has enough information to disclose.
(Cagle v. C & S Wholesale Grocers, Inc. (E.D. Cal. 2014) 505
B.R. 534, 538; see also In re Coastal Plains (5th Cir. 1999) 179
F.3d 197, 208.) The scheduled property
must be accurate and complete enough for the trustee and creditor to determine
whether an exemption is valid, with ambiguities construed against the debtor. (In re Mohring (E.D. Cal. 1992) 142
B.R. 389, 395.) If the debtor is unable
to list the “approximate dollar amount” of a claim, a “simple statement to that
effect” is sufficient. (Cusano v.
Klein (2001) 264 F.3d 936, 946.)
The SAC sufficiently alleges that Plaintiff lists a
wrongful termination a potential wrongful termination claim in her bankruptcy schedule,
meaning it was scheduled. Plaintiff
alleges that she listed a claim for “wrongful firing” in the schedules she
filed in her bankruptcy case. (SAC, ¶
8.) Plaintiff attached Trustee Weil’s
authenticated declaration to her SAC.
(Declaration of Diane C. Weil.) Trustee
Weil reviewed the Schedules and states that Plaintiff listed a “wrongful
firing” claim in the Schedules. (Weil
Dec., ¶¶ 4-5.) Defendants present a copy
of the bankruptcy petition which lists “Possible WC claim – unlawful firing; no
lawsuit filed yet. Value unknown. Estimate is a blind guess” on the petition
schedules and includes an estimated value of $3,000.00. (Tjoarman Dec., at Exh. 1, p. 16.)
The contents of the petition and Plaintiff’s allegations are
enough to show Plaintiff’s wrongful termination claim was scheduled, with the
issue perhaps reachable by other means.
Additionally, the “wrongful firing” claim was abandoned
to Plaintiff when the bankruptcy case closed because Trustee Weil did not
administer the claim before the bankruptcy case closed on October 29, 2021. (SAC, ¶ 10; Weil Dec., ¶ 5, Exh A -
Bankruptcy Docket, p. 3.)
Accordingly, Defendants’ demurrer based on lack of
standing is overruled.
2. Claims
Barred by Statute of Limitations (Gov. Code, §§ 12960 and 12965) - Ninth,
Tenth, Eleventh, Twelfth, and Thirteenth Causes of Action
Defendants contend that Plaintiff’s FEHA claims are
barred by the statute of limitations because Plaintiff filed this lawsuit on
June 22, 2021, over a year after she received her right to sue notice on March
25, 2020. (Tjoarman Dec., ¶ 3, Exh. 2.)
Plaintiff opposes arguing that Defendants cannot
challenge the terms of the Tolling Agreement at the pleading stage. Even as far back as this court’s ruling on
the judgment on the pleadings, the court held that factual determinations about
notice and administrative exhaustion are inappropriate at the pleading stage.
Defendants reply that the Tolling Agreement cannot revive
claims that Plaintiff lacked standing to bring.
The SAC sufficiently alleges that Plaintiff filed her
claims within the one-year statute of limitations. A plaintiff has one year from receipt of a
right to sue notice to file a civil action.
(Gov. Code, §§ 12960, subd. (f)(1)(B), 12965.) Plaintiff alleges that she filed an
administrative complaint with the Department of Fair Employment and Housing (DFEH)
and received a right to sue letter within one year of filing this lawsuit. (SAC, ¶ 13.)
Plaintiff then filed this case on June 22, 2021.
If Defendants want to challenge the Tolling Agreement
they must challenge the agreement through a different type of motion.
Accordingly, Defendants’ demurrer based on statute of
limitations is overruled.
3.
Failure to Exhaust Administrative Remedies (FEHA, FEHA-derivative claims)
- Eight, Ninth, Tenth, Eleventh, Twelfth, Thirteenth, Fourteenth, and Fifteenth
Causes of Action
Defendants contend that defendants Regency and CVOMG
should be dismissed from Plaintiff’s eighth, ninth, tenth, eleventh, twelfth,
thirteenth, fourteenth, and fifteenth causes of action because Plaintiff failed
to exhaust administrative remedies regarding to these defendants. Plaintiff did not identify Regency or CVOMG
in her DFEH complaint because Regency and CVOMG are not listed in the DFEH
Right to Sue document.
Plaintiff opposes contending that all Defendants share a
common registered agent for service and operate as an integrated enterprise. Plaintiff cites Morgan v. Regents of
University of California (2000) but does not explain how Morgan
supports this argument. (88 Cal. App.
4th 52, 63.)
Defendants reply noting Plaintiff does not dispute that
she failed to name certain Defendants in the DFEH charge.
“A complaint is vulnerable to demurrer on administrative exhaustion
grounds when it fails to plead either that administrative remedies were exhausted
or that a valid excuse exists for not exhausting.” (Parthemore v. Col (2013) 221
Cal.App.4th 1372, 1379.) “A complaint is
also vulnerable to demurrer on administrative exhaustion grounds where the
complaint’s allegations, documents attached thereto, or judicially noticeable
facts indicate that exhaustion has not occurred and no valid excuse is alleged
in the pleading to avoid the exhaustion requirement.” (Ibid.)
Before filing a civil suit based on FEHA claims, an
employee must exhaust the FEHA administrative remedy by filing a complaint with
the Department of Fair Employment and Housing (DFEH) and obtain a notice of a
right to sue. (Gov. Code, §§ 12960,
12965, subd. (b).) The DFEH complaint
must set forth the unlawful conduct and name the defendants in the body of the
complaint or as an “employer” or “person” against whom the complaint is
made. (Medix Ambulance Service, Inc.
v. Superior Court (2002) 97 Cal.App.4th 109, 116-118.)
The SAC states that Plaintiff exhausted her
administrative remedies by filing her DFEH complaint and receiving a Right to Sue
letter within one year of filing this case.
(SAC, ¶ 13.) Plaintiff does not
state whether she listed defendants Regency and CVOMG in her DFEH complaint,
and Defendants do not present a request for judicial notice of the Right to Sue
Letter to counter Plaintiff’s allegations.
Accordingly, the court overrules Defendants’ exhaustion
of legal remedies argument regarding the eighth, ninth, tenth, eleventh,
twelfth, thirteenth, fourteenth, and fifteenth causes of action.
4. Failure
to State Sufficient Facts: Eight, Ninth, Twelfth, Thirteenth, Fourteenth, and
Fifteenth Causes of Action
Defendants demur to the eighth, ninth, twelfth,
thirteenth, fourteenth, and fifteenth causes of action failure to state
sufficient facts to constitute valid causes of action. Defendant solely references the first amended
complaint.
Plaintiff does not directly address Defendants arguments.
Eight
Cause of Action: Intentional Infliction of Emotional Distress
Defendants contend that the FAC does not allege any facts
of extreme and outrageous conduct by defendant Younai that was intended to
cause Plaintiff harm. Defendants cite Cervantes
v. J.C. Penny (1979) but provide no other analysis.
Plaintiff does not address this argument.
The elements of a cause of action for intentional
infliction of emotional distress (IIED) are that: (1) defendant engaged in
extreme and outrageous conduct (conduct so extreme as to exceed all bounds of
decency in a civilized community) (2) with the intent to cause, or with
reckless disregard to the probability of causing, emotional distress; and (3)
as a result, plaintiff suffered extreme or severe emotional distress. (Potter v. Firestone Tire & Rubber Co.
(1993) 6 Cal.4th 965, 1001.) “‘[The]
conduct [must be] directed at the plaintiff or occur in the presence of the
plaintiff of whom the defendant is aware.’
[Citation.] ‘The requirement that
the defendant’s conduct be directed primarily at the plaintiff is a factor
which distinguishes intentional infliction of emotional distress from the
negligent infliction of such injury.’” (Id.
at p. 1002; see also So v. Shin (2013) 212 Cal.App.4th 652, 671 [stating
conduct must be directed to the plaintiff, but malicious or evil purpose is not
required].)
Extreme and outrageous conduct “must be so extreme as to
exceed all bounds” that are usually tolerated in a civilized community. (Davidson v. City of Westminster
(1982) 32 Cal.3d 197, 209.) For conduct
to be outrageous, there must be (1) a specific intent to injure or (2) a
reckless disregard of the substantial certainty of a severe emotional injury. (Id. at p. 210 [“Absent an intent to
injure, such inaction is not the kind of ‘extreme and outrageous conduct’ that
gives rise to liability under the ‘intentional infliction of emotional
distress’ tort”]; Christensen v. Superior Court (1991) 54 Cal.3d 868,
903.)
The SAC sufficiently alleges that defendant Sean Youani intentionally
engaged in extreme and outrageous conduct directed at Plaintiff which caused Plaintiff
emotional distress. Plaintiff alleges
that defendant Younai often told her to lower her blouse during meetings with
prospective clients, constantly harassed Plaintiff by asking Plaintiff whether
she dated “cholos” (gang members) or if her ex was back in prison, and constantly
offered Plaintiff drinks when she was having a bad day or felt upset. (SAC, ¶¶ 26-28.) Plaintiff also alleges that all Defendants,
including Younai, attempted to bully her into signing an agreement for a significant
pay decrease, and two days later, Plaintiff experienced severe heart
palpitations and suffered a severe panic attack. (SAC, ¶¶ 34-35.) Plaintiff was taken to the Emergency Room
with elevated blood pressure, referred to a psychiatrist, and placed on medical
leave. (SAC, ¶¶ 35-36.) Plaintiff alleges that defendant Younai was
aware Plaintiff suffered from anxiety and intended to inflict further emotional
distress upon Plaintiff. (SAC,¶¶ 38-39.)
During Plaintiff’s medical leave, Plaintiff suffered extensive emotional
distress because Defendants constantly harassed her through emails, calls, and the
potential that someone would go to Plaintiff’s home to gather company property
at defendant Younai’s requests. (SAC, ¶¶
36-37.) Defendant Younai’s extreme and
outrageous conduct caused and continues to cause Plaintiff to suffer severe and
continuous humiliation, emotional distress, and physical and mental pain and
anguish. (SAC, ¶ 90.)
Accordingly, the court overrules Defendants’ demurrer to
the eighth cause of action.
Ninth
Cause of Action: Racial Discrimination in Violation of the FEHA
Defendant contends that Plaintiff does not allege facts showing
racial discrimination. Plaintiff does
not state how the statements about “cholos” or Plaintiff’s ex being in prison are
racial in nature or relate to her Hispanic American heritage.
Plaintiff does not address this argument.
To plead a FEHA racial discrimination claim, the
complaint must establish “(1) the employee’s membership in a classification
protected by the statute; (2) discriminatory animus on the part of
the employer toward members of that classification; (3) an action by the
employer adverse to the employee’s interests; (4) a causal link
between the discriminatory animus and the adverse action; (5)
damage to the employee; and (6) a causal link between the adverse action and
the damage.” (Arnold v. Dignity
Health (2020) 53 Cal.App.5th 412, 424-425; Gov. Code §, 12940, subd. (a).)
The SAC does not sufficiently allege a FEHA racial
discrimination claim based on Plaintiff’s Hispanic American heritage. Plaintiff alleges she is Hispanic American
and that Defendants harassed Plaintiff and discriminated against her because of
her race. (SAC, ¶ 95.) Defendants constantly targeted Plaintiff and
put her under constant scrutiny while other employees who were not Hispanic
American, but under similar conditions were not subjected to the same
treatment. (SAC, ¶ 95.) Defendant Younai would ask Plaintiff if she
dated “cholos” (gang members) or if her ex was back in prison. (SAC, ¶ 27.)
Plaintiff was the only marketer that Defendants required to attend all
events and to always be on-call. (SAC,
¶¶ 23-24.) As a result of the
discrimination, Plaintiff suffered and continues to suffer emotional distress, humiliation,
mental anguish, and embarrassment, including emotional distress caused by a
panic attack. (SAC, ¶ 98.) Plaintiff also suffered financial losses
including loss of employment, salary and benefits, and a damaged reputation
because Defendants terminated her employment while she was recovering from the
distress caused by the discrimination.
(SAC, ¶¶ 41, 97.)
Plaintiff fails to allege a causal link between her
Hispanic American heritage and her termination.
Accordingly, the court sustains Defendants’ demurrer to
the ninth cause of action.
Twelfth
Cause of Action: Retaliation in Violation of the FEHA
Defendant contends that the SAC fails to allege facts
showing Plaintiff was engaged in any protected activity. Plaintiff does not directly address this
argument.
To plead a FEHA retaliation claim, the complaint must
plead that (1) plaintiff was engaged in a protected activity; (2) the defendant
demoted or discharged plaintiff; (3) that plaintiff’s protected activity was a
substantial motivating reason for defendant’s decision to demote or discharge
plaintiff; (4) that plaintiff was harmed; and (5) that defendant’s decision to
discharge or demote plaintiff was a substantial factor in causing plaintiff’s
harm. (CACI No. 2505; Gov. Code, § 12940,
subd. (h).) Plaintiff does not have to
prove discrimination to be protected from retaliation. (CACI No. 2505.)
Protected activity includes opposing conduct the employee
believes is discriminatory. (Wawrenski
v. United Airlines, Inc. (2024) 106 Cal.App.5th 663, 699-700.) “Standing alone, an employee’s unarticulated
belief that an employer is engaging in discrimination will not suffice to
establish protected conduct for the purposes of establishing a prima facie case
of retaliation, where there is no evidence the employer knew that the employee’s
opposition was based upon a reasonable belief that the employer was engaging in
discrimination. [Citation.]” (Id. at p. 700.) “Although an employee need not formally file a
charge in order to qualify as being engaged in protected opposing activity,
such activity must oppose activity the employee reasonably believes constitutes
unlawful discrimination, and complaints about personal grievances or vague or
conclusory remarks that fail to put an employer on notice as to what conduct it
should investigate will not suffice to establish protected conduct.” (Ibid.)
“[C]ausation can be inferred from timing alone where an adverse
employment action follows on the heels of protected activity.” (Villiarimo v. Aloha Island Air, Inc.
(9th Cir. 2002) 281 F.3d 1054, 1065.)
The SAC fails to allege retaliation because Plaintiff
does not specify the protected activity motivated Defendants to terminate her
employment. Plaintiff alleges she engaged in protected activity “as described
in the complaint” and that Defendants terminated her employment because of the
protected activity. (SAC, ¶ 115.) Plaintiff alleges she went on Medical Leave after
suffering a panic attack caused by Defendant’s conduct on February 29, 2020. (SAC, ¶¶ 35-36.) During medical leave, Defendants harassed
Plaintiff for company property as she was constantly emailed, called, and
subjected to potentially having someone come to her home to gather the company
property. (SAC, ¶ 37.) On March 21, 2020, Defendants sent Plaintiff
a termination letter while Plaintiff was on medical leave. (SAC, ¶ 41.) As a result, Plaintiff suffered financial
losses including loss of salary and benefits, and a damaged reputation because
Defendants terminated her employment while she was recovering from the distress
caused by the discrimination. (SAC, ¶ 117.)
Perhaps Plaintiff believes her “medical leave” was a
protected activity. However, requesting
or taking medical leave is not considered a protected activity under FEHA. (See Faust v. California Portland Dement
Co. (2007) 150 Cal.App.4th 864, 875; Gov. Code, § 12940, subd. (h).)
Accordingly, the court sustains Defendants’ demurrer to
the twelfth cause of action.
Thirteenth Cause of Action: Failure to
Prevent Discrimination in Violation of the FEHA
Defendant argues that no private right of action exists
for a “failure to prevent discrimination” claim under section 12940(k). Defendant cites the court’s October 13, 2023
Minute Order. Plaintiff does not oppose.
Because the court cannot find authority supporting a
claim for failure to prevent discrimination under section 12940(k), the court sustains
Defendant’s demurrer to the thirteenth cause of action, without leave to amend.
Fourteenth and Fifteenth Causes of Action: Wrongful
Termination in Violation of the FEHA and Wrongful Termination in Violation of
Public Policy
Defendant demurs to the fourteenth and fifteenth causes
of action for failure to state sufficient facts but does not present legal
authority to support this argument or even address the specific issues in the
SAC. Plaintiff does not address these arguments.
Absent a good faith basis for the modification or
extension of an existing law, litigants are generally prohibited from asserting
a position in litigation without authority. (See, e.g., In re
Estate of Randall (1924) 194 Cal. 725, 728-29 [“Contentions supported
neither by argument nor by citation of authority are deemed to be without
foundation, and to have been abandoned.”]; Cal. Rules of Professional Conduct,
Rule 3.1.) Additionally, citing general propositions of law, general
statutes and rules, or the assertion that a legal principle applies, without
analysis or authority, provides no basis for the court to analyze or adopt the
request of the party, and requires no substantive analysis by the court.
(See Lafferty v. Wells Fargo Bank (2013) 213 Cal.App. 4th 545, 571-72; Atchley
v. City of Fresno (1984) 151 Cal. App. 3d 635, 647 [“Where a point is
merely asserted by appellant's counsel without any argument of or authority for
the proposition, it is deemed to be without foundation and requires no
discussion by the reviewing court.”].)
Because neither party presents substantive arguments to
address deficiencies with these causes of action, the court does not address
these arguments.
5.
Claims Barred Because They Are Based on the Same Transaction as Failed Claims
- Eighth, Fourteenth, and Fifteenth Causes of Action
Defendants contend that because Plaintiff’s eighth
(IIED), fourteenth (wrongful termination in violation of FEHA), and fifteenth
(wrongful termination in violation of public policy) causes of action are
derivative of Plaintiff’s FEHA claims and based on the same transactions as the
FEHA claims, the court should dismiss them.
These claims are common counts based on the same facts alleging
harassment, discrimination, and retaliation as Plaintiff’s FEHA claims, and
seek the same relief as her defective FEHA claims.
Plaintiff does not address this argument.
“The FEHA was meant to supplement, not
supplant or be supplanted by, existing antidiscrimination remedies, in
order to give employees the maximum opportunity to vindicate their civil
rights against discrimination[.]” (Rojo
v. Kliger (1990) 52 Cal.3d 65, 74-75 [citing Gov. Code, § 12993, subd.
(a)].)
“[B]oth administrative and judicial remedies are
available to victims of employment discrimination.” (Id. at p. 74.)
The court has already overruled Defendants’ demurrer to
the IIED claim and does not address this argument regarding that claim.
As for the fourteenth and fifteenth causes of action,
neither Defendants nor Plaintiff provide substantive arguments explaining how
the wrongful termination causes of action are defective or sufficient. As mentioned above, the court declines to
consider arguments that cite or quote general propositions of law but provide
no basis for the court to analyze the arguments.
Accordingly, the court declines to address this argument
regarding the fourteenth and fifteenth causes of action and overrules the
demurrer regarding the eighth cause of action.
CONCLUSION and ORDER
Defendants’ demurrer to the Ninth, Twelfth, and
Thirteenth causes of action based on failure to state sufficient facts to
constitute a claim, is sustained, with leave to amend the Ninth and Twelfth
causes of action.
Defendants’ demurrer to the Eighth, Fourteenth, and
Fifteenth causes of action based on failure to state sufficient facts and derivative
common count arguments is overruled.
Defendants’ demurrer to the entire complaint based on
lack of standing is overruled.
Defendants’ demurrer based on failure to exhaust
administrative remedies is overruled.
Defendants to give notice.