Judge: Gregory Keosian, Case: 22STCV35368, Date: 2023-03-20 Tentative Ruling
Case Number: 22STCV35368 Hearing Date: March 20, 2023 Dept: 61
Defendant
Renaissance Imaging Medical Associates, Inc.’s Demurrer and Motion to Strike
Portions of Plaintiff Annalee Santos’s Complaint is SUSTAINED with leave to
amend as to the ninth cause of action, and is otherwise OVERRULED and DENIED.
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.) In particular, as is
relevant here, 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. [Citation.]”)
“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 Renaissance Medical Imaging Associates, Inc.
(Defendant) demurrers to each cause of action alleged in Plaintiff Annalee
Santos’s complaint on the grounds that Plaintiff fails to plead a constructive
termination, and fails to plead a causal link between her termination of
employment and her disability. (Demurrer at pp. 4–6.) Defendant also argues
that Plaintiff does not plead that she was denied any accommodation, or that
the interactive process to find one failed, given that she was granted medical
leave. (Demurrer at pp. 6–7.) Defendant further argues that Plaintiff does not
allege that she was eligible for statutory medical leave under FMLA or CFRA,
and that she does not allege a claim for failure to provide employment records
under Labor Code § 226. (Demurrer at pp. 7–8.)
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.)
Defendant’s arguments against Plaintiff’s FEHA claims rest
upon a flagrant misinterpretation of the pleadings. Specifically, while
Defendant argues that Plaintiff fails to allege circumstances amounting to a
constructive termination, the Complaint does not attempt to allege such a
theory: it alleges that Plaintiff’s employment was “summarily terminated” after
she “refused to resign.” (Complaint ¶ 20.) Plaintiff alleges she was terminated
by adverse act of Defendant, not by her own volition.
The Complaint also alleges a causal connection between
Plaintiff’s termination and Defendant’s discriminatory motive, specifically by
noting that Plaintiff was terminated one month after beginning medical leave. (See Arteaga v. Brink’s, Inc. (2008) 163 Cal.App.4th 327, 353
[temporal proximity between disclosure of disability and adverse action
supported prima facie case of discrimination].)
Defendant’s arguments as
to the reasonable accommodation and interactive process claims also fail.
Defendant claims that neither claim can proceed because Plaintiff alleges she
was given leave. (Demurrer at pp. 6–7.) Defendant is correct that an element of
a reasonable accommodation claim is that “the employer failed to reasonably
accommodate the employee's disability. (Nealy v. City of Santa Monica
(2015) 234 Cal.App.4th 359, 373, citations omitted.) But the Complaint alleges
just such a failure to accommodate here — namely, that Defendant offered
Plaintiff leave only to terminate her employment prior to the leave’s
conclusion. (Complaint ¶ 20.) The Complaint thus alleges that Defendant
deprived Plaintiff of reasonable accommodation by cutting her leave prematurely
short.
For the same reasons as stated above,
Defendant’s derivative arguments as to the fifth cause of action for failure to
prevent FEHA violations fails. (Demurrer at p. 7.) The demurrer is therefore
OVERRULED as to the first through fifth causes of action.
Defendant next argues
that Plaintiff was ineligible for leave under either CFRA or FMLA, as her leave
began before she had worked one year for Defendant. (Demurrer at pp. 7–8.)
Defendant correctly states the law, as these statutes require a 12-month period
of work with the employer, and 1,250 hours of service for eligibility. (Gov.
Code § 12945.2, subd. (a); 29 U.S.C. § 2611, subd. (2)(A).) However, Defendant
calculates Plaintiff’s period of employment from the date of her hiring —
February 27, 2020 — to the date of her taking leave on February 17, 2021,
rather than the date she alleges her employment was terminated on March 26,
2021. (Complaint ¶ 20.) When Plaintiff was terminated, she had been employed
with Defendant for the 12-month period. Thus the demurrer to the seventh cause
of action is OVERRULED.
Defendant next argues
that Plaintiff’s eighth and ninth causes of action for failure to turn over
employment and personnel records fail because she alleges a failure to turn
over “general employment or personnel records,” not the particular types of
records that are legally required to be turned over pursuant to Labor Code §
226. (Demurrer at p. 8.) Defendant does not cite authority for the proposition
that characterizing the records due under this section must be particularly
delimited according to the precise payroll records described in Labor Code §
226, subd. (a). Plaintiff alleges that she has sought records required to be
turned over pursuant to subdivision (b) of that statute, but that Defendant has
failed to do so. (Complaint ¶¶ 121, 125.) To the extent these claims have a
defect, it is that the ninth is duplicative of the eighth in apparently seeking
identical categories of documents under the same section. (Ibid.)
Plaintiff in opposition states an intention to amend the ninth cause of action.
(Opposition at p. 5, fn. 1.) The demurrer is therefore OVERRULED as to the
eighth cause of action, and SUSTAINED with leave to amend as to the ninth cause
of action.
II.
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. (Motion at pp. 8–11.)
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”).)
Here, the Complaint alleges something more
than the mere commission of a tort, which is sufficient to invoke punitive
damages. Plaintiff does not merely allege that she was terminated while on disability
leave, but that she was terminated while on-site at Defendant’s location, which
she was visiting to obtain medical services related to her disability.
(Complaint ¶ 20.) Plaintiff alleges that Defendant was aware of the reason for
her visit, and took advantage of the opportunity to pressure her to
“voluntarily resign” her position while she was still under “the residual
influence of anesthetics.” (Complaint ¶ 20.) Plaintiff was terminated after she
refused to resign and “complained of the abusive treatment.” (Complaint ¶ 20.)
Plaintiff thus alleges that Defendant engaged in despicable conduct that
subjected her to cruel and unjust hardship in conscious disregard of her
rights.
Defendant further argues that Plaintiff does
not allege employer ratification as required under Civil Code § 3294, subd.
(b). (Demurrer at pp. 10–11.) But the Complaint alleges that the conduct at
issue was directed or ratified by a managing agent of Defendant’s, just as the
section requires. (Complaint ¶ 34.) Defendant presents no authority for the
proposition that the specific identity of the managing agent need be pleaded.
The motion to strike is
therefore DENIED.