Judge Holly J. Fujie, Case Number: 23STCV20494, Date: 2024-01-17 Tentative Ruling

This action arises out of an employment relationship. The currently operative first amended complaint (the “FAC”) alleges: (1) discrimination in violation of the Fair Employment and Housing Act (“FEHA”); (2) failure to prevent discrimination under FEHA; (3) Labor Code section 1102.5; and (4) Labor Code section 98.6.

In relevant part, the FAC alleges: Plaintiff was employed in Moving Defendant’s accounting department. (FAC ¶ 6.) Throughout his employment, Plaintiff was over 40 years old. (FAC ¶ 8.) After Plaintiff refused to conduct unlawful accounting practices, Moving Defendant subjected Plaintiff to various retaliatory actions that culminated in his termination. (See FAC ¶¶ 9-11.) Moving Defendant subjected Plaintiff to these employment actions with knowledge of his age. (See id.) Plaintiff filed an administrative complaint and received a right-to-sue letter on August 25, 2023. (FAC ¶ 18.) Oddly, the Complaint gives no dates whatsoever for Plaintiff’s employment or termination.

Moving Defendant filed a demurrer (the “Demurrer”) on the grounds that the FAC fails to state sufficient facts to constitute a cause of action and is uncertain.

Moving Defendant’s Request for Judicial Notice is GRANTED as to the existence of the documents and the Court file in Thatcharnok Pichitchartee, Plaintiff v. Life Steps Foundation, Inc. and Does 1 through 20, inclusive, Defendants, Case No. 21STCV16861 (the “2021 Lawsuit”), but not to the truth of the matters stated therein. (Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 113.)

A demurrer tests the sufficiency of a complaint as a matter of law. (Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1358.) The court accepts as true all material factual allegations and affords them a liberal construction, but it does not consider conclusions of fact or law, opinions, speculation, or allegations contrary to law or judicially noticed facts. (Shea Homes Limited Partnership v. County of Alameda (2003) 110 Cal.App.4th 1246, 1254.) With respect to a demurrer, the complaint must be construed liberally by drawing reasonable inferences from the facts pleaded. (Rodas v. Spiegel (2001) 87 Cal.App.4th 513, 517.) A demurrer will be sustained without leave to amend if there exists no reasonable possibility that the defect can be cured by amendment. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

Demurrers for uncertainty are disfavored. (Chen v. Berenjian (2019) 33 Cal.App.5th 811, 822.) 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. (Id.)

Under FEHA, Plaintiffs have one year to file a civil complaint after receiving a right-to-sue letter. (See Gov. Code § 12965, subd. (c)(1)(C).)

Moving Defendant argues that Plaintiff’s claims have expired because Plaintiff filed a lawsuit in 2021 that arises out of the same conduct. The Court is unable to determine if the FAC’s claims are time-barred based on the existence of 2021 lawsuit; notably, neither pleading includes a copy of the underlying right-to-sue letter. (See RJN, Exhibit 1) In addition, Moving Defendant provides no statutory authority for its argument that Plaintiff’s Labor Code claims are barred based on Plaintiff’s FEHA right-to-sue letter. The Court therefore finds that the FAC does not demonstrate that Plaintiff’s claims are time-barred based upon the very vague FAC.

It is an unlawful employment practice for an employer to refuse to hire or employ a person, to discharge a person from employment, or to discriminate against the person in compensation or in terms, conditions, or privileges of employment on the basis of age. (See Gov. Code § 12940, subd. (a).)

To establish a claim for discrimination in violation of FEHA, the plaintiff must generally prove that: (1) he or she was a member of a protected class; (2) he or she was qualified for the position he or she sought or was performing competently in the position he or she held; (3) he or she suffered an adverse employment action, such as termination, demotion, or denial of an available job; and (4) some other circumstance suggesting discriminatory motive. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 355.)

The Court finds that the FAC does not clearly allege a causal link between Plaintiff’s age, the adverse employment actions taken against him, and a discriminatory motive. The Court therefore SUSTAINS the Demurrer to the first cause of action with 20 days leave to amend.

It is an unlawful employment practice for an employer, labor organization, employment agency, apprenticeship training program, or any training program leading to employment, to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring. (Gov. Code § 12940, subd. (k).) To establish this claim, a plaintiff must establish the defendant’s legal duty of care, breach of duty, legal causation, and damages to the plaintiff. (See Trujillo v. North County Transit District (1998) 63 Cal.App.4th 280, 286-87.)

In light of the Court’s determination of the legal insufficiency of the first cause of action, the Court SUSTAINS the Demurrer to the second cause of action with 20 days leave to amend.

Labor Code section 1102.5, subdivision (b) provides that an employer, or any person acting on behalf of the employer, shall not retaliate against an employee for disclosing information, or because the employer believes that the employee disclosed or may disclose information, to a government or law enforcement agency, to a person with authority over the employee or another employee who has the authority to investigate, discover, or correct the violation or noncompliance, or for providing information to, or testifying before, any public body conducting an investigation, hearing, or inquiry, if the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation, regardless of whether disclosing the information is part of the employee's job duties. (Lab. Code § 1102.5, subd. (b).) Labor Code section 1102.5, subdivision (c) provides that an employer, or any person acting on behalf of the employer, shall not retaliate against an employee for refusing to participate in an activity that would result in a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation. (Lab. Code § 1102.5, subd. (c).) To establish a prima facie case of retaliation, a plaintiff must show that: (1) she engaged in protected activity; (2) that she was thereafter subjected to adverse employment action by her employer; and (3) there was a causal link between the two. (Morgan v. Regents of University of Cal. (2000) 88 Cal.App.4th 52, 69.) Statutory causes of action must be alleged with particularity. (Lopez v. Southern Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780, 795.)

The FAC does not clearly identify which provision or provisions of Labor Code section 1102.5 Moving Defendant allegedly violated; nor does the FAC sufficiently allege the factual basis for the claim. The Court therefore SUSTAINS the Demurrer to the third cause of action with 20 days leave to amend.

Labor Code section 98.6, subdivision (a) provides, in part: “A person shall not discharge an employee or in any manner discriminate, retaliate, or take any adverse action against any employee or applicant for employment because the employee or applicant engaged in any conduct delineated in this chapter. . . or because the employee . . . made a written or oral complaint that he or she is owed unpaid wages, . . . or because of the exercise by the employee or applicant for employment on behalf of himself, herself, or others of any rights afforded him or her.” (Lab. Code § 98.6, subd. (a).)

The FAC does not sufficiently allege the basis for the Labor Code section 98.6 claim. The Court therefore SUSTAINS the Demurrer to the fourth cause of action with 20 days leave to amend.

As the Court noted above, the FAC alleges that “Plaintiff filed a charge stating the aforementioned claims with the Cal Civil Rights Agency on August 25, 2023, and received a right-to-sue letter on August 25, 2023” [FAC, para. 18] but does not attach a copy of the purported charge or right-to-sue letter. Meanwhile, the complaint in the 2021 Lawsuit, which is based upon the same claims as the instant lawsuit, alleges that Plaintiff had been wrongfully discharged by Defendants. (Complaint in the 2021 Lawsuit, Third Cause of Action.)[1] Based upon this pleading, the Court assumes that Plaintiff was terminated from his employment with Defendant before the Complaint in the 2021 Lawsuit was filed on May 5, 2021.

Because the facts underlying this claim have implications for the statute of limitations issue and raise concerns about the validity of these apparently re-filed claims, the Court orders that if Plaintiff chooses to amend this pleading, a copy of the referenced charge(s) and right-to-sue letter(s) from DFEH and the CRA both be attached to and incorporated into the amended pleading, and that the amended pleading specify Plaintiff’s employment and termination dates.

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

[1] The complaint in the 2021 Lawsuit alleges that “Plaintiff has received a Right to Sue letter from the California Department of Fair Housing and Employment and has thus exhausted all necessary administrative remedies.” (Complaint in the 2021 Lawsuit, para. 9.) The implication from this allegation is that a right-to-sue letter was issued the DFEH before the 2021 Lawsuit was filed on May 5, 2021. No right-to-sue letter was attached to any of the complaints in either the 2021 Lawsuit or the instant lawsuit.