Judge: George F. Bird, Jr., Case: 21CMCV00336, Date: 2023-02-28 Tentative Ruling

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Case Number: 21CMCV00336    Hearing Date: February 28, 2023    Dept: B

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES – SOUTH CENTRAL DISTRICT

I.       BACKGROUND

            Leonel Rodriguez (“Plaintiff”) filed the Second Amended Complaint (“SAC”) after a demurrer was sustained to the First Amended Complaint on November 17, 2022. The SAC alleges that Plaintiff was an employee of West Coast Ship Supply and Wrist North America, Inc. (collectively “Defendants”) where Plaintiff performed as a warehouse worker. (SAC, ¶ 11.) Plaintiff alleges on March 19, 2019, Plaintiff was operating a forklift with a heavy palette when the inventory fell on top of Plaintiff which caused injuries to his head, shoulder, arm, and leg. (SAC, ¶ 13.) Plaintiff alleges he reported to Defendants his limited ability to perform job duties. (SAC, ¶ 14.) Plaintiff states that he experienced significant difficulty lifting, carrying, pushing, pulling, waking or sitting for extended periods of time, sleeping, household chores, preparing meals, and conducting personal hygiene. (Ibid.) Plaintiff alleges he asked a warehouse manager to see a doctor for his injuries but was told that the incident was his own fault, and he was denied any medical attention. (SAC, ¶ 15.)

            On May 10, 2019, Plaintiff further alleges there was a chemical spill at the warehouse where Plaintiff worked. (SAC, ¶ 17.) Plaintiff began experiencing respiratory issues, shortness of breath, and difficulty breathing which caused fatigue while he was performing his job duties. (SAC, ¶ 18.) Plaintiff alleges he requested he be allowed to leave because Plaintiff felt nauseous and dizzy, but Plaintiff’s request was denied. (SAC, ¶ 19.)

            Plaintiff alleges his workload was increased excessively and Plaintiff was pressured to complete work quickly. (SAC, ¶ 21.) Plaintiff was subsequently terminated on August 8, 2019. (SAC, ¶ 22.) Plaintiff has filed two workers’ compensation claims for his injuries. (SAC, ¶¶ 23, 24.) Following an evaluation by a chiropractor on October 8, 2019, Plaintiff was restricted in lifting and carrying activities that did not exceed 20 pounds and no reaching over the right shoulder. (SAC, ¶ 25.) Plaintiff was diagnosed with “chronic cough, shortness of breath, chest pain, low back pain, and headaches as a result of his exposure to those chemical fumes, and any time he missed from work was considered to be a result of an industrial injury.” (SAC, ¶ 26.) Plaintiff has also allegedly been diagnosed with “chronic right shoulder strain with impingement,

chronic right elbow strain with lateral epicondylitis, and right anterolateral thigh contusion” in addition to suffering from a partial permanent disability to his right shoulder. (SAC, ¶¶ 27, 28.)

            Plaintiff now alleges five causes of action for (1) disability discrimination in violation of Government Code section 12940, subdivision (a); (2) failure to accommodate disability in violation of Government Code section 12940, subdivision (m); (3) failure to engage in an interactive process in violation of Government Code section 12940, subdivision (n); (4) failure to prevent discrimination in violation of Government Code section 12940, subdivision (k); and (5) wrongful termination in violation of public policy.

            On February 2, 2023, Plaintiff amended the SAC to substitute Doe 1 as Marwest, LLC, a California corporation. Marwest, LLC, states that they are a division of original Defendant Wrist North America, Inc. (Demurrer, p. 2:23-25.)

II.       DEMURRER

A.    Demurrer filed January 18, 2023.

            Marwest, LLC (“Defendant”), demurs to all five causes of action in the SAC under Code of Civil Procedure section 430.10, subdivision (e), for failure to allege facts sufficient to support a cause of action. Defendant argues that the conditions listed in the SAC are not conditions that qualify as a disability under the FEHA. Defendant argues that the workers’ compensation diagnosis does not qualify the alleged injuries as disabilities under the FEHA. Defendant further argues that Plaintiff has not adequately alleged he requested an accommodation from Defendant. Finally, Defendant argues that claims four and five are contingent on the success of an FEHA claim and a finding of discrimination. Because Defendant argues the Demurrer should be sustained for claims one, two, and three, Defendant believes the Demurrer for claims four and five must also be sustained.

B.     Opposition filed February 14, 2023.

            Plaintiff argues that the allegations are sufficient to constitute a disability under the FEHA. Plaintiff argues that the authority presented by Defendant related to the ADA is inapplicable because the claims are made under the FEHA. Plaintiff also argues that the SAC specifically alleges a request for an accommodation to seek and obtain medical treatment and to leave work after a chemical spill at the warehouse where Plaintiff worked. Finally, Plaintiff argues that because the Demurrer should be overruled as to causes of action one, two, and three, the contingent causes of action four and five should also survive the Demurrer.

C.     Reply filed February 21, 2023.

            Defendant argues that ADA law is persuasive authority for disability cases under the FEHA and is relevant to the current action. Defendant also argues that Plaintiff still fails to allege injuries that qualify as a disability under the FEHA and that the requests by Plaintiff to ‘go home’ are not adequate requests for an accommodation.

III.       LEGAL STANDARDS

            A demurrer tests the legal sufficiency of the factual allegations in the complaint. (K.G. v. S.B. (2020) 46 Cal.App.5th 625, 630.) “The purpose of a demurrer is to test whether, as a matter of law, the properly pleaded facts in the complaint state a cause of action under any legal theory.” (Olson v. Hornbrook Community Services Dist. (2019) 33 Cal.App.5th 502, 516.) In ruling on a demurrer, the court must “liberally construe[]” the allegations of the complaint in favor of plaintiff. (Code Civ. Proc., § 452; See Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1238.)  

            The court must assume the truth of (1) the properly pleaded factual allegations; (2) facts that can be reasonably inferred from those expressly pleaded; and (3) judicially noticed matters. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; McBride v. Smith (2018) 18 Cal.App.5th 1160, 1173.) “We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions, or conclusions of fact or law.” (Savea v. YRC Inc. (2019) 34 Cal.App.5th 173, 178; See also Moore v. Conliffe (1994) 7 Cal.App.4th 634, 638.) For a statutory violation, “facts in support of each of the requirements of a statute” must be “specifically pled,” and simply “parroting the language” of a statute is insufficient to survive a demurrer. (Hawkins v. TACA Internat. Airlines, S.A. (2014) 223 Cal.App.4th 466, 477-478.) 

            Because a demurrer tests the legal sufficiency of a pleading, the plaintiff must show that the pleading alleges facts sufficient to establish every element of each cause of action. (Rakestraw v. California Physicians Service (2000) 81 Cal.App.4th 39, 43.) Sufficient facts are the essential facts of the case “with reasonable precision and with particularity sufficiently specific to acquaint the defendant with the nature, source, and extent of his cause of action.” (Gressley v. Williams (1961) 193 Cal.App.2d 636, 643-644.) Where the pleading fails to state facts sufficient to constitute a cause of action, courts should sustain the demurrer. (Code Civ. Proc., § 430.10, subd. (e); Zelig v. County of Los Angeles (2002) 27 Cal.App.4th 1112, 1126.) 

IV.       DISCUSSION

A.    Relevance of ADA law.

            Plaintiff brings their first four causes of action pursuant to Government Code section 12940 which is a part of the California Fair Employment and Housing Act (“FEHA”) commencing with section 12900 of Division 3 of Title 2 of the Government Code. (See Gov. Code § 12900 et seq.) The Americans with Disabilities Act (“ADA”) is federal legislation found in the United States Code, Title 42. Though cases interpreting the ADA may be persuasive authority on some issues under the FEHA, this Court will not rely on persuasive authority when the FEHA explicitly departs from the standards in the ADA. 

B.     Sufficient allegations of a disability.

            Of particular relevance to this case is the standard for establishing a disability. Case law pursuant to the FEHA states, “California law and federal law differ with respect to the standard for establishing a disability, in that federal law requires a showing of a ‘substantial limitation,’ while FEHA requires only that the condition ‘limits’ a major life activity.” (Sandell v. Taylor-Listug, Inc. (2010) 188 Cal.App.4th 297, 312 [115 Cal.Rptr.3d 453, 466].)   Because the standards differ, this Court will only consider case law and interpretations under the FEHA.

            The relevant definition for a ‘physical disability’ under the FEHA is found in Government Code section 12926, subdivision (m)(1), which states that a physical disability is “any physiological disease, disorder, condition, cosmetic disfigurement, or anatomical loss that does both of the following: (A) Affects one or more of the following body systems: ¿neurological, immunological, musculoskeletal, special sense organs, respiratory, including speech organs, cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin, and endocrine. (B) Limits a major life activity. For the purpose of this section: … (iii) “Major life activities” shall be broadly construed and includes physical, mental, and social activities and working.” (Gov. Code § 12926, subd. (m)(1).)

            The SAC alleges several injuries including injuries to Plaintiff’s “head, shoulder, arm, and leg” and “respiratory issues, shortness of breath, and difficulty breathing.” (SAC, ¶¶ 13, 18.) Plaintiff alleges that these injuries resulted in “significant difficulty lifting, carrying, pushing, and pulling items, as well as difficulty walking and sitting or standing for too long due to his extensive injuries that were sustained at work. Plaintiff also experienced difficulty sleeping, performing household chores, preparing meals, and conducting personal hygiene. Additionally, Plaintiff suffered from symptoms of depression and gastritis.” (SAC, ¶ 14.) Plaintiff also alleges that he has been diagnosed with several ailments as a result of the chemical spill including chronic cough, shortness of breath, chest pain, and headaches. (SAC, ¶ 26.) Plaintiff has also been diagnosed with chronic right shoulder strain with impingement, chronic right elbow strain with lateral epicondylitis, right anterolateral thigh contusion, and was found to be suffering from a partial permanent disability to the right shoulder. (SAC, ¶¶ 27, 28.) Plaintiff was placed on modified duty including no lifting or carrying weight over 20 pounds and no reaching over the right shoulder. (SAC, ¶ 25.)

            When assuming the truth of the matters asserted, as is required when evaluating a demurrer, Plaintiff has alleged physiological conditions affecting the musculoskeletal and respiratory systems which have limited major life activities. Plaintiff is limited in the activities of walking, sitting, or standing for extensive periods of time and pushing, pulling, or lifting items which is a requirement of Plaintiff’s work. Such difficulties are limitations on major life activities.

            While Defendant argues that ‘mild conditions’ or general allegations of pain are excluded from the definition of a physical disability, Plaintiff does not allege mild conditions or general pain. Examples of mild conditions are “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.” (Cal. Code Regs., tit. 2, § 11065, subd. (d)(9)(B).) Plaintiff has alleged significant ailments such as a chronic cough, chronic shoulder pain, and a partial permanent disability. Additionally, the definition of a ‘minor condition’ presented by Defendant is “conditions that are mild, which do not limit a major life activity, as determined on a case-by-case basis.” (Italics added for emphasis.) (Cal. Code Regs., tit. 2, § 11065, subd. (d)(9)(B).) Plaintiff has sufficiently alleged that the injuries suffered limited major life activities and therefore are not mild conditions.

            Defendant also alleges that temporary conditions do not qualify as a disability. Plaintiff clearly alleges he suffered respiratory injuries at the time of the chemical spill and has been diagnosed with a chronic cough as a result of the chemical spill. (SAC, ¶ 26.) Plaintiff also alleges he suffered injuries to his shoulder while working and has now been diagnosed with a partial permanent disability to his right shoulder. (SAC, ¶ 28.) The injuries alleged are not temporary.

            Defendant cites to Halperin v. Abacus Technology Corp. (4th Cir. 1997) 128 F.3d 191, 200, for determining a “qualified individual” under the ADA. Halperian was an action for summary judgment where the court considered evidence to determine if a lower back injury ‘substantially limited’ a worker’s abilities. (Ibid.) The FEHA definition, applicable here, only requires that the injury ‘limit a major life activity.’ The analysis and decision in Halperian are inapplicable to the claims made in this case.

            Defendant finally argues that the workers’ compensation diagnosis does not demonstrate that Plaintiff was disabled at the time he was working for Defendant. Plaintiff directly alleges that the respiratory issues were “a result of his exposure to those chemical fumes” and that “any time he missed from work during that time was considered to be a result of an industrial injury.” (SAC, ¶ 26.) Even without the workers’ compensation diagnosis allegations, Plaintiff clearly alleges that Defendants observed the forklift accident where Plaintiff was injured and that Plaintiff informed Defendants “that due to the injury that Plaintiff sustained to his right shoulder” he experienced difficulty accomplishing a wide range of work and personal tasks. (SAC, ¶ 14.) Plaintiff has sufficiently alleged that a qualifying disability under the FEHA existed while Plaintiff was employed by Defendant.

C.     Request for a reasonable accommodation.

            A ‘reasonable accommodation’ is defined by Government Code section 12926, subdivision (p) as either “(1) Making existing facilities used by employees readily accessible to, and usable by, individuals with disabilities. (2) Job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.” (Gov. Code, § 12926, subd. (p).) Plaintiff’s SAC alleges Plaintiff asked to see a doctor for his injuries due to the forklift accident, asked to be allowed to leave after the chemical spill at the warehouse, and continued to request to seek medical attention as symptoms continued. (SAC, ¶¶ 15, 19, 20.)

            The Court finds that these requests are not sufficient to qualify as a request for an accommodation. Though Plaintiff may summarily state that these requests are reasonable accommodations, such assertions are legal conclusions that the court will not consider on demurrer. (See Savea v. YRC Inc. (2019) 34 Cal.App.5th 173, 178; See also Moore v. Conliffe (1994) 7 Cal.App.4th 634, 638.)

            The Court will consider the properly plead factual allegations and assume as true that Plaintiff requested, on several occasions, that Defendant seek and provide medical treatment for Plaintiff. Even if true, such facts do not demonstrate that Plaintiff requested an accommodation under Government Code section 12926, subdivision (p). The requests do not seek physical modifications of the facilities or equipment used by Plaintiff, they do not seek job restructuring by moving Plaintiff to a different position or modifying duties, and they do not seek to modify Plaintiff’s work schedule. The requests made ask Defendant to exert time and resources to finding and funding treatment for injuries. This is not a request for an accommodation.

D.    Causes of action 1, 2, and 3.

            Claims for disability discrimination, failure to accommodate, and failure to engage in an interactive process all require that a Plaintiff have requested an accommodation from Defendant. Because Plaintiff has failed to plead that an accommodation was requested, the Demurrer to the Second Amended Complaint as to claims 1, 2, and 3 is SUSTAINED.

E.     Contingent claims.

            Claims 4 and 5 for failure to prevent discrimination and wrongful termination in violation of public policy are contingent upon a finding of discrimination and a valid FEHA claim. Because the prior claims fail to assert a proper request for an accommodation, there can be no proper FEHA claim or discrimination based on a failure to accommodate.

            Based on the foregoing, the Demurrer to the Second Amended Complaint as to claims 4 and 5 is SUSTAINED.

F.      Leave to amend.

            “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) 10 Cal.3d 335, 348. Plaintiff states that if a demurrer is sustained, Plaintiff will amend to include further facts related to the requests for accommodations made. (Opposition, p. 10:1-5.)

            Based on the foregoing, leave to amend will be granted.

V.       CONCLUSION

            The Demurrer to the Second Amended Complaint is SUSTAINED with leave to amend.

Dated: February 28, 2023                                           _________________________________

                                                                                                Judge of the Superior Court