Judge: Jon R. Takasugi, Case: 21STCV07577, Date: 2024-08-07 Tentative Ruling

Case Number: 21STCV07577    Hearing Date: August 7, 2024    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

Defendant’s motion for judgment on the pleadings is GRANTED IN PART, DENIED IN PART.  

Defendant’s motion for judgment on the pleadings is DENIED as to the first, second, and fourth causes of action. Defendant’s motion for judgment on the pleadings is GRANTED, WITH 15 DAYS LEAVE TO AMEND, as to the third cause of action. Defendant’s motion is GRANTED as to Frank Marini with 15 days leave to amend.

            On 2/25/2021, Plaintiff Lucia Rodriguez (Plaintiff) filed suit against Martini Associates Development, LLC d/b/a Los Angeles Adventure All Suite Hotel (Defendant), alleging: (1) age discrimination; (2) disparate treatment of perceived medical condition; (3) employment retaliation; and (4) wrongful termination.

            Now, Defendant moves for a judgment on the pleadings as to Plaintiff’s Complaint.

Factual Background

            Plaintiff alleges that she was wrongfully terminated after she returned from a two year leave period. Plaintiff alleges that she during this leave period she was undergoing treatment for breast cancer.  

Discussion

            Defendant argues Plaintiff has failed to alleged facts sufficient to state a claim because she has not alleged Plaintiff was qualified to perform essential functions of the job, she has not alleged retaliatory animus, protected activity, or causation, the amount of money demanded is not stated in the complaint, and Frank Martini is an individual not an employer.

            As for the first contention, to establish a claim of disability discrimination under the FEHA, an employee must plead facts establishing that (1) she has a disability or medical condition; (2) she is qualified to perform the essential duties of her position, with or without reasonable accommodation; (3) she suffered an adverse employment action; and (4) the employer subjected her to the adverse action because of her disability. (Id. at pp. 257–258, 261– 264; Nadaf-Rahrov v. Neiman Marcus Group, Inc. (2008) 166 Cal.App.4th 952, 962, 976–978.)  

Similarly, to establish a claim of age discrimination, a “plaintiff must allege that the plaintiff (1) is over the age of 40; (2) suffered an adverse employment action; (3) was performing satisfactorily at the time of the adverse action; and (4) suffered the adverse action under circumstances that give rise to an inference of unlawful discrimination, i.e., evidence that the plaintiff was replaced by someone significantly younger than the plaintiff.” (Sandell v. Taylor-Listug, Inc., (2010) 188 Cal.App.4th 297, 321).

Defendant argues that Plaintiff has not alleged facts which could show that she was qualified to perform the work when she returned from her disability leave after two years.  However, Plaintiff alleges that she was released to return to work without any restrictions by Plaintiff's oncologist in September of 2019. (Complaint ¶ 6.) As such, this amounts to an allegation that she was able to perform the essential functions of the job upon her return. While Defendant disputes this, and submitted evidence to argue that Plaintiff only underwent treatment for two months, this requires factual determinations not properly made at this stage.

Moreover, Plaintiff alleges that when she was let go, her manager expressly said to her “You are being let go because she you [sic] are too old and crippled.” (Complaint ¶ 8.) While Defendant may dispute whether or not this was said, this requires a factual determination which the Court may not properly make at this stage.

Taken together, the Court concludes that Plaintiff has alleged sufficient facts to show disability and age discrimination.

However, the Court agrees that Plaintiff has not alleged sufficient facts to support her retaliation claim.

The elements of a claim for retaliation in violation of Government Code section 12940, subdivision (h), are: “(1) the employee’s engagement in a protected activity . . . ; (2) retaliatory animus on the part of the employer; (3) an adverse action by the employer; (4) a causal link between the retaliatory animus and the adverse action; (5) damages; and (6) causation.” (Mamou v. Trendwest Resorts, Inc. (2008) 165 Cal.App.4th 686, 713.) “Protected activity” under Section 12940(h) means an employee “opposed any practices forbidden under [FEHA] or…filed a complaint, testified, or assisted in any proceeding under [FEHA].” (Cal. Gov. Code §12940(h).)

Here, Plaintiff does not allege that she engaged in any protected activity which was then causally linked to the decision to fire her. Leave to amend will be granted to provide Plaintiff an opportunity to allege facts which could show she engaged in protected activity.

As to the third contention, Plaintiff’s Complaint includes a prayer for relief which seeks, among other things, special, general, and exemplary damages according to proof at the time of trial. These allegations are clearly sufficient, as an estimate of damages will require discovery and expert testimony, neither of which have occurred at the pleading stage.

Finally, as for the fourth contention, Defendant argues that there is no individual liability as to Mr. Marini who is not an employer. “Individuals who do not themselves qualify as employers may not be sued under the FEHA for alleged discriminatory acts.” (Jones v. Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158, 1167) Here, Plaintiff has not alleged acts which could show that Mr. Marini was her employer. Plaintiff’s contention in opposition that he was “the contact person with the Social Security Office” does not tend to show that he was her employer. (Opp., 7:28-8:1.) While retaliation could plausibly support individual liability here, Plaintiff has not alleged any facts which could show that he was involved in the decision to terminate her, or could be liable under this cause of action on some other basis.

Based on the foregoing, Defendant’s motion for judgment on the pleadings is granted in part, denied in part. Defendant’s motion is denied as to the first, second, and fourth causes of action. Defendant’s motion is granted, with 15 days leave to amend, as to the third cause of action. Defendant’s motion is granted as to Frank Marini with 15 days leave to amend.  

  It is so ordered.

Dated:  August    , 2024

   Hon. Jon R. Takasugi
   Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.  If all parties to a motion submit, the court will adopt this tentative as the final order.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar.  For more information, please contact the court clerk at (213) 633-0517.