Judge John C. Gastelum, Case 22-01247207 2023-01-05 Tentative Ruling

Judge: John C. Gastelum, Case: 22-01247207, Date: 2023-01-05 Tentative Ruling

Demurrer to Complaint

Defendants Birdwell California! LLC and Ryan Baine’s (collectively “Defendants”) Demurrer to Plaintiff Lindsay Knott’s Complaint is OVERRULED, in its entirety, as follows.

As to the 1^st COA (harassment and hostile work environment under FEHA), this claim is sufficiently pled. The Complaint alleges Plaintiff was “met with disrespect by male Birdwell employees”; that “male employees who worked under Knott consistently failed to report to meeting”; that “male employees displayed insubordination and disrespect for Knott because she is a woman”; refused to take instructions from Plaintiff; made “vocal and aggressive communications in public forms (e.g., Slack), about Knott, her work, and her job duties”; male employees including BAINE “argued with Knott, set demands, and disregarded her opinions and instructions”; BAINE criticized Plaintiff’s work and made demands; male employees had no respect for Plaintiff’s authority; male employees spoke to her in a demeaning tone and manner; BAINE undermined Plaintiff in public messages and dictated assignments that were within her purview; and that Duggal, BIRDWELL’s HR Director, insinuated she was crazy and emotional like his ex-wife. (See Complaint, ¶¶ 19, 20, 24, 27, 30, 38.) Plaintiff also alleges that her complaints of the conduct were dismissed by Defendants and she was told “it’s all in your head,” “dial it back,” and that she was being overly “reactive”; that BIRDWELL President and COO, Brett Reynolds, made a misogynistic comment at a meeting and all male employees laughed in front of Plaintiff; and that Plaintiff was told that management was tired of hearing from her and that she was being “too sensitive”. (See Id., ¶¶ 32, 54, and 55.) The Complaint alleges that Plaintiff “dealt with approximately 5- 12 inappropriate actions or comments from the men at Birdwell on a daily basis”. (Id., ¶ 62.) These allegations are sufficient to plead a cause of action for harassment/hostile work environment because of Plaintiff’s sex/gender. (See Roby v. McKesson Corp. (2006) 38 Cal.4^th 265, 278-279.)

As to the 2^nd COA (gender discrimination in violation of FEHA), this claim is sufficiently pled. Defendants demur on the grounds the Complaint fails to allege any adverse employment taken against Plaintiff because of her sex/gender. The Complaint alleges Plaintiff was discriminated against because of her gender and Plaintiff’s gender was a substantial motivating reason for BIRDWELL’s decision to place her on an involuntary leave. (See Complaint, ¶¶ 56-59, 81 [“Birdwell discriminated against Knott for her gender], and 82.) Being placed on “administrative leave may constitute an adverse employment action.” (Whitehall v. County of San Bernardino (2017) 17 Cal.App.5^th 352, 332.)

As to the 3^rd and 6^th COAs (retaliation in violation of FEHA and retaliation in violation of Labor Code section 1102.5), these claims are sufficiently pled. Defendants contend the retaliation claims fail because Plaintiff failed to sufficiently allege COAs, and retaliation, Defendants contend these claims fail because Plaintiff failed to sufficiently plead claims for harassment, discrimination or retaliation. However, as set forth above, the Complaint sufficiently pleads these causes of action.

As to the 5^th COA (wrongful constructive discharge in violation of public policy), Defendants contend this cause of action fails because Plaintiff’s underlying FEHA claims are not sufficiently pled. However, as set forth above, the Complaint sufficiently pleads these causes of action.

As to the 7^th COA (declaratory relief), this claim is sufficiently pled. The Complaint alleges that there is an actual and present controversy between Plaintiff and BIRDWELL as Plaintiff contends that BIRDWELL breached the parties’ Arbitration Agreement by failing to timely pay its arbitration fees; that Plaintiff believes that BIRDWELL disputes this contention; that an additional controversy exists between the parties concerning whether BIRDWELL is liable for Plaintiff’s attorneys’ fees and costs for abandoning the arbitration proceeding; and that Plaintiff seeks a judicial declaration of their rights and duties with respect to the Arbitration Agreement including a finding that BIRDWELL breached same by failing to timely pay the arbitration fees. (See Complaint, ¶¶ 120-122.)

The Complaint seeks a declaration of Plaintiff and BIRDWELL’s rights and duties under the Arbitration Agreement. This is specifically allowed by Code of Civil Procedure section 1060 above. Further, Plaintiff is not seeking her attorney fees and costs via the Complaint. Rather, the Complaint alleges that Plaintiff “intends to seek these fees and costs by way of a motion, as permitted by Code of Civil Procedure section 1281.98(c)(1).

As to Plaintiff’s request for punitive damages, Defendants’ demur on the grounds the Complaint fails to allege any malicious, oppressive, or fraudulent conduct. Here, again, as set forth above, Plaintiff’s claims for discrimination, harassment, and retaliation are sufficiently pled. Accordingly, Plaintiff’s request for punitive damages is sufficiently pled based on these allegations.

The Court SUSTAINS Defendants’ objection to the entirety of Ms. Hashmall’s declaration as extrinsic evidence is not admissible on demurrer. The demurrer tests the pleading alone and not the evidence or other extrinsic matters which do not appear on the face of the pleading or cannot be properly inferred from the factual allegations of the complaint. (See Code Civ. Proc., section 430.30; see also Milligan v. Golden Gate Bridge Highway & Transportation Dist. (2004) 120 Cal.App.4^th 1, 5.)

As to the 4^th COA (Failure to Prevent Discrimination, Harassment, and Retaliation),

Government Code “[s]ection 12940, subdivision (k) states in part that ‘it is an unlawful employment practice ...For an employer ... to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring.” (Dickson v. Burke Williams, Inc. (2015) 234 Cal. App. 4th 1307, 1313.) The “failure to provide an environment free from discrimination [(i.e., failure to take all reasonable steps necessary to prevent discrimination from occurring)] [is a] violation of the FEHA, section 12940, subdivision (k).”

An actionable claim under section 12940, subdivision (k) is dependent on a claim of actual discrimination.” (Id. at 1315.) Here, again, Defendants’ demur to the failure to prevent discrimination cause of action on the grounds it fails because Plaintiff failed to allege a cause of action for discrimination. However, the Court finds the Complaint sufficiently alleges a cause of action for unlawful discrimination, and will OVERRULE the demurrer as to this claim.

Moving Party is to give notice.