Judge Holly J. Fujie, Case Number: 23STCV21082, Date: 2024-08-06 Tentative Ruling

DEPARTMENT 56 JUDGE HOLLY J. FUJIE, LAW AND MOTION RULINGS. The court makes every effort to post tentative rulings by 5.00 pm of the court day before the hearing. The tentative ruling will not become the final ruling until the hearing [see CRC 3.1308(a)(2)], and are also available in the courtroom on the day of the hearing [see CRC 3.1308(b)]. If the parties wish to submit on the tentative ruling and avoid a court appearance, all counsel must agree and choose which counsel will give notice. That counsel must 1) call Dept 56 by 8:30 a.m. on the day of the hearing (213/633-0656) and state that all parties will submit on the tentative ruling, and 2) serve notice of the ruling on all parties. If any party declines to submit on the tentative ruling, then no telephone call is necessary and all parties should appear at the hearing in person or by Court Call. Court reporters are not provided, and parties who want a record of motions and other proceedings must hire a privately retained certified court reporter.

This action arises out of an employment relationship. Plaintiff’s operative second amended complaint (the “SAC”) alleges: (1) race discrimination in violation of the Fair Employment and Housing Act (“FEHA”); (2) harassment on the basis of race in violation of FEHA; (3) religious discrimination in violation of FEHA; (4) retaliation in violation of FEHA; (5) failure to prevent discrimination, harassment, and retaliation in violation of FEHA; (6) and wrongful termination in violation of public policy.

On May 24, 2024, Defendant filed the instant demurrer (the “Demurrer”) to the third, fourth and fifth causes of action in the SAC. Defendant concurrently filed a motion to strike (the “Motion”) portions of the SAC. Plaintiff filed an opposition on June 4, 2024, and Defendant filed a reply on July 16, 2024.

“The primary function of a pleading is to give the other party notice so that it may prepare its case [citation], and a defect in a pleading that otherwise properly notifies a party cannot be said to affect substantial rights.” (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 240.) “A demurrer tests the legal sufficiency of the factual allegations in a complaint.” (Ivanoff v. Bank of America, N.A. (2017) 9 Cal.App.5th 719, 725.) The Court looks to whether “the complaint alleges facts sufficient to state a cause of action or discloses a complete defense.” (Id.) The Court does not “read passages from a complaint in isolation; in reviewing a ruling on a

demurrer, we read the complaint ‘as a whole and its parts in their context.’ [Citation.]” (West v.

JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 780, 804.) The Court “assume[s] the truth

of the properly pleaded factual allegations, facts that reasonably can be inferred from those

expressly pleaded and matters of which judicial notice has been taken.” (Harris, supra, 56 Cal.4^th p. 240.) “The court does not, however, assume the truth of contentions, deductions or

conclusions of law. [Citation.]” (Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350,

As a general matter, in a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “The only issue a demurrer is concerned with is whether the complaint, as it stands, states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.)

Defendant demurs to the third cause of action in the SAC, asserting that the SAC still fails to state a cause of action for discrimination on the basis of religion in violation of FEHA.

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 race or religious creed. (Gov. Code, § 12940, subd. (a).)

To establish a claim for discrimination in violation of FEHA, a 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, in its April 18, 2024 Minute Order, previously sustained the demurrer to the third cause of action in the first amended complaint (“FAC”), finding that “the FAC still fails to allege what adverse employment action, if any, Plaintiff experienced due to being allegedly forced to calendar holidays against her religious beliefs.” (April 18, 2024 Minute Order, p. 5.) The Court also noted that the FAC did not include an allegation that Plaintiff was required to observe or acknowledge any of the holidays on the calendar.

In her SAC, Plaintiff included new allegations claiming that she was compelled to take part in activities related to celebrating Christmas as a holiday, even though Defendant was aware that it went against her religious beliefs to observe and celebrate holidays. Plaintiff claims that she had communicated her religious beliefs to Defendant. (SAC, ¶ 74.) Plaintiff now alleges that in addition to being asked to complete tasks that were not consistent with her religion (calendaring holidays), she was required to participate in holiday activities such as Christmas caroling, holiday decorating, and holiday meals. (SAC, ¶ 80.) Specifically, Plaintiff alleges that she was required to “participate in Christmas carol singing, engage in office gift giving, and eat holiday dinners with the staff’s friends and family. Further, Plaintiff was required to create automatic emails indicating on holidays that… ‘we will be observing the holidays and will be closed on…”. Plaintiff insisted that different terminology be used.” (SAC, ¶ 31; SAC, ¶ 75.)

Plaintiff further claims that “on December 11, 2022, Plaintiff engaged in protected activity including but not limited to complaining to Defendant about the discriminating and harassing conduct Plaintiff was continuously subjected to… Once Plaintiff complained about the mistreatment she was enduring, Defendant sent an email firing Plaintiff by telling Plaintiff she was resigning.” (SAC, ¶ 89.) Plaintiff’s job was allegedly terminated because of Plaintiff’s complaints to Defendant; that is, Plaintiff’s complaints were a substantial motivating reason for Defendant’s decision to terminate Plaintiff’s job. (SAC, ¶ 90-91.)

Thus, the Court finds that Plaintiff has now sufficiently pled facts to support religious discrimination in violation of FEHA. Whether those facts are sufficiently severe to support this claim is a question for the trier of fact. The Court, therefore, OVERRULES the Demurrer as to the third cause of action.

The Court notes that the Defendant’s demurrer to the fourth and fifth cause of action in the FAC was previously overruled. (April 18, 2024 Minute Order, pp. 6-7.) Moreover, to the extent Defendant demurs to these causes of action on the basis of insufficient allegations of religious discrimination, the Court incorporates its analysis on the third cause of action above. The Court, therefore, OVERRULES the Demurrer as to the fourth and fifth causes of action.

The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc., § 436(a).) The court may also strike 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. (Id., § 436(b).) The grounds for a motion to strike are that the pleading has irrelevant, false or improper matter, or has not been drawn or filed in conformity with laws. (Id., § 436.) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Id., § 437.)

Here, Defendant moves to strike Plaintiff’s request for punitive damages and references to punitive damages and religious discrimination in the SAC.

To the extent the Motion seeks to strike references to religious discrimination, the Court incorporates its analysis above pertaining to the demurrer to the SAC, finding that the SAC has sufficiently alleged discrimination on the basis of religion. Accordingly, the MOTION is DENIED in part.

In order to state a prima facie claim for punitive damages, a complaint must set forth the elements as stated in the general punitive damage statute, Civil Code section 3294. (College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 721.)¿ These statutory elements include allegations that the defendant has been guilty of oppression, fraud or malice. (Civ. Code, § 3294, subd. (a).)¿

“‘Malice’ “ is defined in the statute as conduct “intended by the defendant to cause injury to plaintiff, or despicable conduct that is carried on by the defendant with a willful and conscious disregard for the rights or safety of others.” (Civ.Code, § 3294, subd. (c)(1); College Hospital, supra, 8 Cal.4th at p . 725.) “ ‘Oppression’ means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.” (Civ.Code, § 3294 subd. (c)(2).) “ ‘Fraud’ “ is “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.” (Civ.Code, § 3294, subd. (c)(3).) (Turman v. Turning Point Of Central Cal., Inc. (2010) 191 Cal.App.4th 53, 63.)

“In order to survive a motion to strike an allegation of punitive damages, the ultimate facts showing an entitlement to such relief must be pled by a plaintiff.” (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255. Accord Spinks v. Equity Residential Briarwood Apartments (2009) 171 Cal. App. 4th 1004, 1055; Blegen v. Sup. Ct. (1981) 125 Cal.App.3d 959, 962.) Conclusory allegations, devoid of any factual assertions, are insufficient to support a conclusion that parties acted with oppression, fraud or malice. (Smith v. Sup. Ct. (1992) 10 Cal. App. 4th 1033, 1042.) Wrongful employment termination alone does not support an award of punitive damages, but also there must be fraud, oppression or malice, such as despicable conduct, or a conscious disregard of the plaintiff's rights. (Scott v. Phoenix Schools, Inc. (2009) 175 Cal.App.4th 702, 715-17.) “‘Punitive damages are proper only when the tortious conduct rises to levels of extreme indifference to the plaintiff's rights, a level which decent citizens should not have to tolerate.’” (Am. Airlines v. Sheppard (2002) 96 Cal. App. 4th 1017, 1051.)

Here Plaintiff failed to allege facts supporting punitive damages. While the new allegations viably support a claim for religious discrimination, none of these allegations are sufficient to establish malice, oppression, or fraud.

Accordingly, the Motion is GRANTED in part, to the extent that the request for punitive damages and any references pertaining to punitive damages are stricken from the SAC. Because this is the second demurrer on this issue, the references pertaining to punitive damages are ordered stricken without leave to amend.

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.

Hon. Holly J. Fujie

Judge of the Superior Court