Judge: Jon R. Takasugi, Case: 21STCV38767, Date: 2022-09-07 Tentative Ruling

Case Number: 21STCV38767    Hearing Date: September 7, 2022    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

            Defendant’s demurrer is OVERRULED IN PART, SUSTAINED IN PART:

-         Defendant’s demurrer is OVERRULED as to the first, third, sixth, and seventh causes of action.

-         Defendant’s demurrer is SUSTAINED, WITH 15 DAYS LEAVE TO AMEND as to the second and eighth causes of action.

-         Defendant’s demurrer is SUSTAINED, WITHOUT LEAVE TO AMEND as to the fourth and fifth causes of action.

            On 10/20/2021, Plaintiff Leobardo Guzman (Plaintiff) filed suit against Arcadia, Inc.

On 5/18/2022, Plaintiff filed a first amended complaint (FAC) alleging: (1) discrimination on the basis of associational disability; (2) harassment; (3) retaliation; (4) failure to provide reasonable accommodation; (5) failure to engage in the interactive process; (6) wrongful termination; (7) failure to prevent discrimination, harassment, and retaliation; and (8) intentional infliction of emotional.  

            Now, Defendant demurs to Plaintiff’s FAC.

Legal Standard

A demurrer for sufficiency tests whether the complaint states a cause of action.¿ (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747 (Hahn).) ¿When considering demurrers, courts read the allegations liberally and in context.¿ (Taylor v. City of Los Angeles Dept. of Water and Power¿(2006) 144 Cal.App.4th 1216, 1228.)¿ 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.)¿ “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.”¿ (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.)¿ “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.”¿ (Hahn, supra, 147 Cal.App.4th at p. 747.) 

Discussion

I.                   Discrimination

Defendant argues that Plaintiff cannot state claim for disability discrimination because no controlling authority acknowledges associational discrimination as a basis for discrimination under FEHA.

However, Defendant’s own cited case law belies this. In Castro-Ramirez v. Dependable Highway Express, Inc. (2016) 2 Cal.App.5^th 1028, 1036 the Court expressly concluded that “FEHA provides a cause of action for associational disability discrimination, although it is a seldom-litigated cause of action.”

In Castro-Ramirez, the employee had to administer daily dialysis to his son. (Id. at p. 1042-43.) After several years of supervisors scheduling the employee's shifts so he could be home at night for the dialysis, a new supervisor changed the schedule and ultimately fired the employee for refusing to work a shift that did not allow him to be home in time. (Id.) Based on these facts, the court concluded that a jury could reasonably find that the supervisor engineered a situation that would give him a reason to terminate the employee and, thus, plaintiff’s association with his disabled son was a substantial motivating factor in the employer’s decision to terminate him. (Id.) As a result, the Court reversed the trial court’s ruling granting summary adjudication of plaintiff’s associational disability discrimination cause of action.

Here, Plaintiff alleges that he was terminated because he requested leave of absences to care for his disabled mother. While Defendant argues that Castro-Ramirez is distinguishable from the facts here because Plaintiff has not alleged that his termination was because of his mother’s fact of disability, but rather due to his leaves of absences, this is an issue appropriately decided at the summary judgment stage, not the pleading stage. Moreover, in Castro-Ramirez, the Court did not conclude the employer had animus towards the employee’s son’s disability. Rather, the termination was “because of” the son’s disability because it was the employee’s conflicting obligation to care for his disabled son that prompted his termination.

Here, similarly, Plaintiff alleges that he was the primary caretaker for his 92 year old mother who has diabetes, dementia, Parkinson’s disease, and chronic respiratory issues. (FAC ¶ 11.) Plaintiff further alleges that this responsibility resulted in requests for time-off, leaves of absence, and late or no-show arrivals at work, but that he followed the protocol of “providing [his supervisor] doctor’s notes every time he was out.”  (FAC ¶ 12(b).) These allegations, accepted as true at the pleading stage, are sufficient to state a claim for associational disability discrimination at this time.

While it may be true that Plaintiff’s allegations are false as Defendant contends, this is not appropriately decided at this stage of the proceedings.

Based on the foregoing, Defendant’s demurrer to the first cause of action is overruled.

II.               Harassment

Defendant argues that Plaintiff cannot state a claim for harassment because Plaintiff does not allege severe and pervasive conduct.

The Court agrees.

To state a claim for harassment, Plaintiff must allege facts which could show: (1) plaintiff belongs to a protected group; (2) plaintiff was subjected to unwelcome harassment; (3) the harassment complained of was based on protected status; (4) the harassment complained of was sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment; and (5) respondeat superior.  (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 608.) Whether the conduct complained of is sufficiently pervasive must be determined “from the totality of the circumstances.”  (Fisher v. San Pedro Peninsula Hospital, supra, 214 Cal.App.3d 590, 609.) “The plaintiff must prove that the defendant’s conduct would have interfered with a reasonable employee's work performance and would have seriously affected the psychological well-being of a reasonable employee and that she was actually offended.” (Id. at pp. 609-610.) Harassment typically does not include conduct necessary for management of the employer’s business or performance of the supervisory employee’s job. (Reno v. Baird (1998) 18 Cal.4th 40, 647.)

Here, it is unclear what allegations specifically support this cause of action because the harassment cause of action itself consists only of boilerplate allegations. However, presumably, Plaintiff’s cause of action is based on an allegation that:

In or around late December of 2019, Mr. Guzman was called into Jose’s office. Jonathan was asked to be present as well as Mr. Guzman was informed by Jose that no future work would be available for him. Furthermore, Jose stated it would be best for Mr. Guzman to stay home and take care of his mother. When this was mentioned, Mr. Guzman noticed Jonathan begin to laugh. Mr. Guzman verbally asked Jonathan to stop and informed him there was nothing humorous about the situation. Mr. Guzman was emotionally and physically exhausted of months of tending to his mother’s health and Jonathan’s mocking only distressed him further.

(FAC ¶ 12.)

An allegation that on a single occasion an employee “laughed” in response to another employee saying it would be best for Plaintiff to stay home and care for his mother is insufficient as a matter of law to show harassment. 

Plaintiff will be afforded an opportunity to allege facts which could show harassment.

Defendant’s demurrer to the second cause of action is sustained, with 15 days leave to amend.

III.            Retaliation

Defendant argues that Plaintiff cannot state a claim for retaliation because he does not allege that he engaged in any protected activity.

The Court disagrees.

To state a claim of retaliation under FEHA, a plaintiff must show (1) he engaged in a protected activity, (2) he was subjected to an adverse employment action, and (3) there is a causal link between the protected activity and the adverse employment action.” (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042; Cal. Gov. Code, § 12940(h).)

Here, Plaintiff alleges that he requested time off to care for his sick mother, and was then subjected to an adverse employment action in the form of termination for the pretextual reason of failing to provide proper doctor’s notes. (FAC ¶ 11.) Requesting an accommodation is protected activity under the FEHA, regardless of whether the accommodation is granted. (See AB 987.) Thus, even if Defendant had no duty to grant the accommodation, Plaintiff has still alleged facts which, accepted as true, could show that he was terminated for the act of filing an accommodation request. 

Based on the foregoing, Defendant’s demurrer to the third cause of action is overruled.

IV.            Failure to Accommodate

Defendant argues that Plaintiff cannot state a claim for failure to accommodate because California law does not require that an employee be accommodated for another’s disability.

The Court agrees.

In Castro-Ramirez, supra, “acknowledge[d] that the reasonable accommodation subdivision of section 12940 does not expressly refer to persons other than an applicant or employee.” (Id. at 1038.) While the court considered the “statutory scheme” to give effect to section 12940(m)(1) in the associational disability context, the Court confirmed that they “do not decide [the] point” requiring employers to reasonably accommodate an employee’s association with a physically disabled person. (Id. at 1039.) The Castro-Ramirez dissent agreed: “Notably, the Legislature has not stated an intent that FEHA depart from the ADA by requiring an employer to accommodate a nondisabled employee with a disabled associate.” (Id. at 1058.)

In opposition, Plaintiff did not identify any case law or statutory authority which would persuasively show that an employer is required to not only accommodate an employee’s disability but also accommodate for an employee’s association with a disabled person. Rather, Plaintiff argues that under California law “may” require  such accommodation, but admits that no California has actually found such a duty exists, and admits the ADA requires no such duty. Accordingly, the Court is bound by the express language of the statute which makes it a violation for an employer “to fail to make reasonable accommodation for the known physical or mental disability of an applicant or employee.” (Govt. Code § 12940(m)(1), emphasis added.)

Given that Plaintiff’s entire Complaint rested on allegations of associational discrimination rather than Plaintiff’s own disability, there is no reason to believe that Plaintiff could allege sufficient facts to show a failure to accommodate his disability.

Based on the foregoing, Defendant’s demurrer to the fourth cause of action is sustained, without leave to amend.

V.                Failure to Engage in Interactive Process

Defendant argues that Plaintiff’s claim for failure to engage in the interactive process fails because Plaintiff’s failure to reasonable accommodate also fails.

The Court agrees. The obligation to engage in the interactive process is triggered by the obligation to reasonably accommodate a disability.

Based on the foregoing, Defendant’s demurrer to the fifth cause of action is sustained, without leave to amend.

VI.            Wrongful Termination

Defendant argues that Plaintiff cannot state a claim for wrongful termination because it is derivative of Plaintiff’s other claims, which also fail.

As set forth above, the Court overruled Defendant’s demurrer to the first and third causes of action.

Based on the foregoing, Defendant’s demurrer to the sixth cause of action is overruled as to wrongful termination.

VII.         Failure to Prevent

Defendant argues that Plaintiff cannot state a claim for wrongful termination because it is derivative of Plaintiff’s other claims, which also fail.

As set forth above, the Court overruled Defendant’s demurrer to the first and third causes of action.

Based on the foregoing, Defendant’s demurrer to the seventh cause of action is overruled as to discrimination.

VIII.      Intentional Infliction of Emotional Distress (IIED)

Defendant argues that Plaintiff’s IIED cause of action is uncertain and cannot constitute extreme and outrageous conduct as a matter of law.

The Court agrees.

Here, Plaintiff’s IIED cause of action is based on allegations that an employee once laughed at Plaintiff and discriminatorily terminated him.

However, just as the Court explained above, an allegation that on a single occasion an employee “laughed” in response to another employee saying it would be best for Plaintiff to stay home and care for his mother is insufficient to show severe or pervasive conduct. For the same reason, such conduct simply cannot constitute extreme and outrageous conduct as a matter of law. Moreover, to the extent that the cause of action is based on his termination: under the compensation bargain, distress that arises in the course of employment is exactly the kind of distress that is compensable only through workers’ compensation. (Singh v. Southland Stone, U.S.A., Inc. (2010) 186 Cal.App.4th 338, 367.)  This is true even when the complained-of conduct was “manifestly unfair or outrageous.” (Ibid.)  

Leave to amend will be afforded to provide Plaintiff an opportunity to allege facts which could show IIED damages that do not fall within the exclusive scope of the workers’ compensation scheme.

Based on the foregoing, Defendant’s demurrer to the eighth cause of action is sustained with 15 days leave to amend.

It is so ordered.

Dated:  September    , 2022

   Hon. Jon R. Takasugi
   Judge of the Superior Court

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