Judge: Gregory Keosian, Case: 22STCV32588, Date: 2023-01-20 Tentative Ruling
Case Number: 22STCV32588 Hearing Date: January 20, 2023 Dept: 61
Defendant
Social Model Recovery Systems, Inc.’s Demurrer and Motion to Strike Portions of
the Complaint are SUSTAINED with 30 days leave to amend as to the first, fourth
and fifth causes of action, and OVERRULED as to the second, third, and twelfth
causes of action. The motion to strike is GRANTED with 30 days leave to amend
as to the prayer for punitive damages
Defendant to give notice.
I. DEMURRER
A demurrer should be sustained only where the defects appear
on the face of the pleading or are judicially noticed. (Code Civ. Pro., §§
430.30, et seq.) A court should
sustain a demurrer if a complaint does not allege facts that are legally
sufficient to constitute a cause of action. (See id. § 430.10,
subd. (e).) As the Supreme Court held in Blank
v. Kirwan (1985) Cal.3d 311: “We treat the demurrer as admitting all
material facts properly pleaded, but not contentions, deductions or conclusions
of fact or law. . . . Further, we give the complaint a reasonable
interpretation, reading it as a whole and its parts in their context.” (Id. at p. 318; see also Hahn. v. Mirda (2007) 147 Cal.App.4th
740, 747 (“A demurrer tests the pleadings alone and not the evidence or other
extrinsic matters. Therefore, it lies only where the defects appear on the face
of the pleading or are judicially noticed.”))
“In determining whether the complaint is sufficient as
against the demurrer … if on consideration of all the facts stated it appears
the plaintiff is entitled to any relief at the hands of the court against the
defendants the complaint will be held good although the facts may not be
clearly stated.” (Gressley v. Williams (1961) 193 Cal.App.2d 636, 639.)
“A demurrer
for uncertainty is strictly construed, even where a complaint is in some
respects uncertain, because ambiguities can be clarified under modern discovery
procedures.” (Khoury v. Maly’s of Cal., Inc. (1993) 14 Cal.App.4th 612,
616.) Such demurrers “are disfavored,
and are granted only if the pleading is so incomprehensible that a defendant
cannot reasonably respond.” (Mahan v.
Charles W. Chan Insurance Agency, Inc. (2017) 14 Cal.App.5th 841, 848.)
A
demurrer should not be sustained without leave to amend if the complaint,
liberally construed, can state a cause of action under any theory or if there
is a reasonable possibility the defect can be cured by amendment. (Schifando
v. City of Los Angeles, supra, 31 Cal.4th at p. 1081.) The demurrer also
may be sustained without leave to amend where the nature of the defects and
previous unsuccessful attempts to plead render it probable plaintiff cannot
state a cause of action. (Krawitz v. Rusch (1989) 209 Cal.App.3d 957,
967.)
Defendant
Social Model Recovery (Defendant) demurrers to all FEHA causes of action
alleged in the Complaint, as well as the 12th cause of action for
wrongful termination, based on the argument that Plaintiff’s claims sound in
disability discrimination, and Plaintiff has failed to plead a qualifying
disability. (Demurrer at pp. 2–9.)
Government
Code § 12940(a) or the Fair Employment and Housing Act (FEHA) prohibits
employer discrimination on the basis of disability. To establish a discrimination claim under
FEHA, an employee must prove the following elements: “(1) he was a member of a
protected class, (2) he was qualified for the position he sought or was
performing competently in the position he held, (3) he suffered an adverse
employment action, such as termination, demotion, or denial of an available
job, and (4) some other circumstance suggests discriminatory motive.” (Dinslage v. City and County of San Francisco
(2016) 5 Cal.App.5th 368, 378.) The FEHA plaintiff “must plead a prima facie
case in order to survive demurrer.” (Caldwell
v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 202 fn. 7.)
Defendant is correct that
Plaintiff has failed to plead that she suffered from any specific disability,
which is the protected characteristic that forms the basis for her FEHA claim.
(See
Choochagi v. Barracuda Networks, Inc. (2020) 60 Cal.App.5th 444, 458 [identifying sufferance
from disability as an element of a FEHA disability claim].) Although Plaintiff
pleads the existence of a disability (Complaint ¶ 18), no more information,
such as the disability at issue, is alleged. This is not a properly pleaded
material fact, but rather belongs to the category of “contentions, deductions
or conclusions
of fact
or law” which are not taken as true upon demurrer. (Marsh v. Anesthesia Services
Medical Group, Inc. (2011) 200 Cal.App.4th 480, 491.) Accordingly, the
demurrer is SUSTAINED with leave to amend as to the first, fourth, and fifth
causes of action for disability discrimination, failure to accommodate, and
failure to engage in interactive process, which each have as an element the
sufferance or perceived sufferance of a disability.
However, this reasoning does not apply to the second,
third, and twelfth causes of action, which may be grounded upon a theory of
retaliation, rather than disability. “To establish a prima facie case of
retaliation under 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.’” (Nealy v. City of Santa Monica (2015) 234
Cal.App.4th 359, 380.) Notably, disability is not an element of such a claim,
but rather the Plaintiff’s engaging in protected activity. And the request for
a reasonable accommodation constitutes protected activity under the FEHA
statute. (Gov. Code § 12940, subd. (m)(2).) Here, the Complaint does not simply
allege a request for accommodation, but the nature of the accommodations sought
— namely an altered schedule, followed by medical leave. (Complaint ¶¶ 18–19.)
These allegations are sufficiently specific to establish protected activity at
the demurrer stage.
Thus the demurrer is SUSTAINED with leave to amend as to
the first, fourth, and fifth causes of action, and OVERRULED as to the second,
third, and twelfth causes of action.
I.
MOTION TO
STRIKE
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. (Code Civ. Proc., §
435(b)(1)). The notice of motion to strike a portion of a pleading shall quote
in full the portions sought to be stricken except where the motion is to strike
an entire paragraph, cause of action, count or defense. (California Rules of
Court Rule 3.1322.)
The
grounds for a motion to strike shall appear on the face of the challenged
pleading or form any matter of which the court is required to take judicial
notice. (Code Civ. Proc., § 437(a)). The court then may strike out any
irrelevant, false, or improper matter inserted in any pleading and 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. (Code Civ. Proc., §
436.) When the defect which justifies striking a complaint is capable of cure,
the court should allow leave to amend. (Perlman
v. Municipal Court (1979) 99 Cal.App.3d 568, 575.)
Defendant
moves to strike the prayer for punitive damages from the Complaint . (Motion at
pp. 4–6.)
Punitive damages are allowed in non-contract cases when a
defendant is guilty of “oppression, fraud, or malice . . . .” (Civ. Code §
3294.) The terms are defined as:
“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.
“Oppression”
means despicable conduct that subjects a person to cruel and unjust hardship in
conscious disregard of that person's rights.
“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.
Something more than the mere commission of a
tort is always required for punitive damages. (Taylor v. Superior Court (1979) 24 Cal.3d 890, 894.) Proof of
negligence, gross negligence, or recklessness is insufficient to warrant an
award of punitive damages. (Dawes v.
Sup.Ct. (Mardian) (1980) 111 Cal.App.3d 82, 88–89.) Punitive damages may be
recovered in an action for negligence or other nonintentional torts if the
plaintiff pleads and proves that the defendant acted with the state of mind
described as “conscious disregard” of the potential dangers to others. (Pfeifer v. John Crane, Inc. (2013) 220
Cal.App.4th 1270, 1299.) When malice is based on a defendant’s conscious
disregard of Plaintiff’s rights, the conduct must be both despicable and
willful. (College Hospital v. Superior
Court (1994) 8 Cal.4th 794, 713 (“College
Hospital”).)
Defendant is correct that the Complaint pleads
little to justify an award of punitive damages. The mere pleading of a FEHA
violation is insufficient to satisfy Civil Code § 3294. (See Turman v. Turning Point of Central California, Inc.
(2010) 191 Cal.App.4th 53, 63–64 [“While the third amended complaint does allege facts
sufficient to state a cause of action for gender discrimination, it fails to
state facts sufficient to support allegations that respondent acted with
malice, oppression or fraud, as required by statute.”]) Here, Plaintiff has
pleaded a retaliatory discharge, coupled with a conclusory allegation that the
conduct was intentional and malicious. (Complaint ¶ 29.) Such allegations are
insufficient. (See Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872
[party could not invoke punitive damages with “conclusory characterization of
defendant’s conduct as intentional, willful, and fraudulent”].)
The motion is therefore GRANTED with leave
to amend.