Judge: Gregory Keosian, Case: 23STCV15465, Date: 2023-11-21 Tentative Ruling

Case Number: 23STCV15465    Hearing Date: March 6, 2024    Dept: 61

Defendants DCH Torrance Imports, Inc.’s Demurrer to the First Amended Complaint is SUSTAINED without leave to amend.

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.) 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) 39 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 DCH Torrance Imports, Inc. (Defendant) once again demurrers to the fifth cause of action for FEHA retaliation, now amended in the First Amended Complaint (FAC), on the grounds that Plaintiff Mohamed Taqieldin (Plaintiff) fails to allege that he engaged in protected activity. (Demurrer at pp. 4–5.)

“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.)

This court previously sustained Defendant’s demurrer to this cause of action in an order dated November 21, 2023, on the grounds that Plaintiff had not alleged that he had complained of or opposed conduct forbidden by the FEHA, but had merely alleged that he had complained about “the actions of his supervisors” and “the actions of [Defendant’s] employees. (Complaint ¶¶ 63–64.) Leave to amend was granted to flesh out this allegation.

The FAC contains no mention of the above complaints. It instead alleges that the protected conduct for which Plaintiff suffered retaliation was “praying in accordance with his religious creed.” (FAC ¶ 66.) This is insufficient. One has engaged in protected activity when they have “opposed any practices forbidden under this part or . . . filed a complaint, testified, or assisted in any proceeding under this part.” (Gov. Code, § 12940, subd. (h).) While relevant to Plaintiff’s discrimination and harassment claims, engaging in religious prayers does not constitute opposition to any practice forbidden by the FEHA. “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.” (Castro-Ramirez v. Dependable Highway Express, Inc. (2016) 2 Cal.App.5th 1028, 1046.)

This is not protected activity for the purposes of FEHA retaliation.