Judge: Jon R. Takasugi, Case: 23STCV21843, Date: 2024-02-23 Tentative Ruling

Case Number: 23STCV21843    Hearing Date: February 23, 2024    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

            Defendant’s demurrer is OVERRULED.

            On 9/11/2023, Plaintiff Eva Mejia (Plaintiff) filed suit against Top Shelf Concierge Services, LLC, alleging: (1) discrimination; (2) failure to prevent; and (3) wrongful failure to hire.

            On 1/5/2023, Plaintiff filed a first amended complaint (FAC), alleging the same causes of action.

            Now, Defendant demurs to Plaintiff’s FAC.

Discussion

Defendant argues that Plaintiff has not alleged sufficient facts to support her claims.

As a preliminary matter, Plaintiff filed an amended complaint. However, California law is clear that a party may only amend its pleading once without leave of Court. (CCP § 472.) Given that Plaintiff already filed a FAC without leave of Court, Plaintiff was not entitled to file a SAC without leave of Court. As such, the SAC must be struck, and cannot be considered as a response to Defendant’s demur. The Court considers the FAC the operative Complaint, and considers the opposition and reply filed that regards the FAC alone.

            Defendant argues that Plaintiff cannot state a claim against Defendant because the alleged conduct by Defendant is not covered by the FEHA statute, and thus cannot constitute a FEHA violation. Similarly, Defendant argues that its conduct is not in violation of public policy.

            After review, the Court disagrees.

            Plaintiff alleges she applied for work with Defendant as an office assistant. Plaintiff alleges she participated in a telephone interview with Defendant's male owner and was invited for an in-person interview at Defendant's physical office. (Comp. ¶ 10) During the in-person interview with defendant's male owner, Plaintiff was allegedly offered, and did accept, the position of Office Assistant. (Comp. ¶ 11.) Plaintiff alleges that immediately thereafter the male owner's female business partner and/or wife entered the office and interrupted the interview. (Comp. ¶ 11.) Plaintiff alleges that she was then told that Defendant was no longer interested in employing her. (Ibid.) Plaintiff alleges that on that same date she received a text message from the Defendant's male owner who notified Plaintiff that the reason Plaintiff was not hired was because of her "attractiveness and big boobs" and because defendant's female business partner and/or wife was "intimidated by [Plaintiffs] looks." (Comp. ¶ 12.) In her opposition, Plaintiff submitted copies of these text messages. Based on these facts, Plaintiff alleges sex and gender discrimination.

            Defendant argues that this conduct does not constitute a FEHA violation because her attractiveness and body type are not a protected category under FEHA. However, FEHA prohibits discrimination based on the way an employee/applicant expresses their gender. (Govt. Code § 12926(r)(2).) While this can be applied to transgender and gender nonconforming employees who do not dress or appear in a manner stereotypically associated with the person’s assigned sex, this can of course, also be applied to the facts at hand. Plaintiff alleges that a job offer she received was revoked based only, and expressly, on her gender-related appearance and anatomical characteristics assigned to her at birth. As such, Plaintiff has alleged that Defendant treated her less favorably than a candidate and/or employee without these same characteristics (i.e., Plaintiff’s male counterparts), and that the decision not to hire her was based solely on her sex-based characteristics. (Abed v. Western Dental Services, Inc. (2018) 23 Cal.App.5th 726.) This is sufficient at the pleading stage to support all three of her causes of action.

            Based on the foregoing, Defendant’s demurrer is overruled.

It is so ordered.

Dated:  February    , 2024

   Hon. Jon R. Takasugi
   Judge of the Superior Court

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