Judge: Joseph Lipner, Case: 23STCV00940, Date: 2024-05-23 Tentative Ruling

Case Number: 23STCV00940    Hearing Date: May 23, 2024    Dept: 72

SUPERIOR COURT OF CALIFORNIA

COUNTY OF LOS ANGELES

DEPARTMENT 72

TENTATIVE RULING

Defendant In-N-Out Burgers (“Defendant”) moves for judgment on the pleadings as to the Complaint filed by Plaintiff Hilda Zamora (“Plaintiff”)

The Court DENIES Defendant’s motion.  The Court, however, invites argument from Defendant on the issues relating to the Second and Third claims given the open questions of California law that this motion raises. 

Background

This is an employment case. The following facts are taken from the allegations in Plaintiff’s Complaint, which the Court accepts as true for the purposes of this motion.

Plaintiff became employed with Defendant approximately 23 years ago.

On August 8, 2021, Plaintiff’s infant son was diagnosed with a rare form of cancer. Plaintiff informed her manager, Jason Villalobos, about the diagnosis.

Plaintiff’s son was prescribed an intense chemotherapy plan which required Plaintiff to take time off from work to be with and care for her son during his treatment. Plaintiff obtained a note from her son’s doctor excusing her from work for six months. Plaintiff submitted the note to her manager and to Defendant’s Human Resources (“HR”) department. In January 2022, Plaintiff’s son required further attention, so Plaintiff was given a second doctor’s note, excusing her from work for an additional six months. Plaintiff submitted the second note to her manager and HR.

Plaintiff remained in contact with Villalobos, who informed her that another employee of Defendant had been granted a year-long absence. Villalobos never gave Plaintiff the impression that the store was understaffed.

On January 10, 2022, while Plaintiff was at the hospital for her son’s chemotherapy treatment, the HR department contacted her approximately four times. The HR representative informed Plaintiff that she needed to return to work or resign from her position. Plaintiff felt that she had no choice but to resign from her position.

Plaintiff filed this action on January 17, 2023, raising claims for (1) associational disability discrimination in violation of FEHA; (2) failure to accommodate in violation of FEHA; and (3) failure to engage in the interactive process in violation of FEHA.

Defendant answered on February 21, 2023.

On April 29, 2024, Defendant moved for judgment on the pleadings. Plaintiff filed an opposition and Defendant filed a reply.

Request for Judicial Notice

The Court grants the parties’ requests for judicial notice as public records.

Legal Standard

Either prior to trial, but after the time to answer or demur has passed, or at the trial, the plaintiff or the defendant may move for judgment on the pleadings and that the appropriate ground for such a motion is the same as that arguable by general demurrer, namely, the failure to state a cause of action or defense. (Dobbins v. Hardister (1966) 242 Cal.App.2d 787, 791; See also Sofias v. Bank of America (1985) 172 Cal.App.3d 583, 586 [The non-statutory motion for judgment on the pleadings can be made at any time, even during trial, since the grounds for a general demurrer are never waived.], see also Code Civ. Proc., §438(f).)  

A motion for judgment on the pleadings performs the same function as a general demurrer, and hence attacks only defects disclosed on the face of the pleadings or by matters that can be judicially noticed. (See, e.g., Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (TRG 1998) §§ 7:275, 7:322; Lance Camper Manufacturing Corp. v. Republic Indemnity Co. (1996) 44 Cal.App.4th 194, 198.) Presentation of extrinsic evidence is therefore not proper on a motion for judgment on the pleadings. (Id.; Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 999.) Both a demurrer and a motion for judgment on the pleadings accept as true all material factual allegations of the challenged pleading, unless contrary to law or to facts of which a court may take judicial notice. (Mechanical Contractors Assn. v. Greater Bay Area Assn. (1998) 66 Cal.App.4th 672, 677; Edwards v. Centex Real Estate Corp, (1997) 53 Cal.App.4th 15, 27.) 

The motion may be made only after one of the following conditions has occurred: (1) If the moving party is a plaintiff, and the defendant has already filed his or her answer to the complaint and the time for the plaintiff to demur to the answer has expired; (2) If the moving party is a defendant, and the defendant has already filed his or her answer to the complaint and the time for the defendant to demur to the complaint has expired. (Code Civ. Proc., § 438(f).) The motion provided for in Code of Civil Procedure section 438 may be made even though either of the following conditions exist:  (1) The moving party has already demurred to the complaint or answer, as the case may be, on the same grounds as is the basis for the motion provided for in this section and the demurrer has been overruled, provided that there has been a material change in applicable case law or statute since the ruling on the demurrer; (2) The moving party did not demur to the complaint or answer, as the case may be, on the same grounds as is the basis for the motion provided for in this section. (Code Civ. Proc., § 438(g).) No motion may be made pursuant to Code of Civil Procedure section 438 if a pretrial conference order has been entered pursuant to Code of Civil Procedure section 575, or within 30 days of the date the action is initially set for trial, whichever is later, unless the court otherwise permits. (Code Civ. Proc., § 438(e).)   

Discussion

Associational Disability Discrimination in Violation of FEHA – First Claim

A plaintiff alleging discrimination must allege “that (1) [the plaintiff] was a member of a protected class, (2) [the plaintiff] was qualified for the position he sought or was performing competently in the position [they] held, (3) [the plaintiff] suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some other circumstance suggests discriminatory motive.” (Guz v. Bechtel National Inc. (2000) 24 Cal.4th 317, 355.)

Defendant argues that Plaintiff did not suffer an adverse employment action. Defendant contends that Plaintiff had no entitlement to obtain accommodations, including leave, and that Defendant’s instruction that Plaintiff needed to return to work or resign was not an adverse employment action.

“An ‘adverse employment action,’ … requires a substantial adverse change in the terms and conditions of the plaintiff’s employment.” (Holmes v. Petrovich Development Co., LLC (2011) 191 Cal.App.4th 1047, 1063, quotation marks omitted.) This standard is construed liberally – “although an adverse employment action must materially affect the terms, conditions, or privileges of employment to be actionable, the determination of whether a particular action or course of conduct rises to the level of actionable conduct should take into account the unique circumstances of the affected employee as well as the workplace context of the claim.” (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1052.) “A schedule change in an employee's work schedule may make little difference to many workers, but may matter enormously to a young mother with school-age children.” (Burlington Northern and Santa Fe Ry. Co. v. White (2006) 548 U.S. 53, 69.)

Contrary to Defendant’s position, an adverse employment action does not need to deny a plaintiff something to which they are otherwise entitled. For example, termination is an adverse employment action, even though at-will employment is the default rule in California. As discussed by the United States Supreme Court, a schedule change that affects a mother’s ability to pick her children up from school may similarly constitute an adverse employment action. In light of this precedent, the Court has no trouble determining that the ultimatum that an employee must cease taking time off to care for her child with cancer or resign is an adverse employment action.

Defendant argues that Plaintiff cannot state a causal connection between her son’s disability and the adverse employment action because Plaintiff’s leave had expired and she was thus no longer entitled to be absent from work. As discussed at length below, the Court is not persuaded that, as a matter of law, Defendant had no duty to accommodate Plaintiff’s need to take care of her son. Thus, Plaintiff has adequately alleged causation.

The Court therefore denies the motion as to this claim.

Failure to Accommodate and Failure to Engage in the Interactive Process in Violation of FEHA – Second and Third Claims

Under Government Code, section 12940, it is an unlawful employment practice “to fail to make reasonable accommodation for the known physical or mental disability of an applicant or employee” unless the employer demonstrates doing so would impose an undue hardship. “The essential elements of a failure to accommodate claim are: (1) the plaintiff has a disability covered by the FEHA; (2) the plaintiff is a qualified individual (i.e., he or she can perform the essential functions of the position); and (3) the employer failed to reasonably accommodate the plaintiff's disability.” (Wilson v. County of Orange (2009) 169 Cal.App.4th 1185, 1192.)

“FEHA requires an informal process with the employee to attempt to identify reasonable accommodations, not necessarily ritualized discussions.” (Nealy v. City of Santa Monica (2015) 234 Cal.App.4th 359, 379.)

Once initiated, the employer has a continuous obligation to engage in the interactive process in good faith. “Both employer and employee have the obligation ‘to keep communications open’ and neither has ‘a right to obstruct the process.’” [Citation.] Each party must participate in good faith, undertake reasonable efforts to communicate its concerns, and make available to the other information which is available, or more accessible, to one party. Liability hinges on the objective circumstances surrounding the parties’ breakdown in communication, and responsibility for the breakdown lies with the party who fails to participate in good faith. [Citation.] (Swanson v. Morongo Uni¿ed School Dist. (2014) 232 Cal.App.4th 954, 971–972.)

Defendant argues that FEHA creates no duty to accommodate, or engage in an interactive process with, an employee who is merely associated with a person who has a disability, as opposed to an employee who is themselves disabled.

FEHA makes it unlawful for an employer “to fail to make reasonable accommodation for the known physical or mental disability of an applicant or employee” (Gov. Code, § 12940, subd. (m)(1) [emphasis added]) or “to fail to engage in a timely, good faith, interactive process with the employee or applicant to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee or applicant with a known physical or mental disability or known medical condition.” (Gov. Code, § 12940, subd. (n) [emphasis added].) Similarly, FEHA defines ‘reasonable accommodations’ as “(1) [m]aking existing facilities used by employees readily accessible to, and usable by, individuals with disabilities[; or] (2) [j]ob restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.” (Gov. Code, § 12926, subd. (p).)

However, the story does not end there. FEHA also states that, as used in connection with unlawful practices in section 12940, “physical disability, mental disability, [or] medical condition …  includes a perception … that the person is associated with a person who has, or is perceived to have, any of those characteristics.” (Gov. Code, § 12926, subd. (o).) To complicate things further, the definitions in section 12926 only apply “unless a different meaning clearly appears from the context.” (Gov. Code, § 12926.)

Plaintiff and Defendant both cite to Castro-Ramirez v. Dependable Highway Express, Inc. (2016) 2 Cal.App.5th 1028 (“Castro-Ramirez 2”) in support of their arguments. “[N]o published California case has determined whether employers have a duty under FEHA to provide reasonable accommodations to an applicant or employee who is associated with a disabled person.” (Castro-Ramirez v. Dependable Highway Express, Inc. (2016) 2 Cal.App.5th 1028, 1038.) In Castro-Ramirez 2, the plaintiff appealed a grant of summary judgment on his associational disability discrimination claim, but not his associational disability accommodation claim. (Id. at pp. 1035, 1038.) The Court therefore did not decide the issue of whether 12926(o) permits a non-disabled plaintiff to sue for failure to accommodate or engage in the interactive process based on the plaintiff’s association with a person with a disability. (Id. at pp. 1038-1039.) The court acknowledged that “[l]ike the many other definitions set forth in section 12926, this definition of a physical disability applies ‘in connection with unlawful practices [under FEHA], unless a different meaning clearly appears from the context.’ Accordingly, when section 12940, subdivision (m) requires employers to reasonably accommodate ‘the known physical disability of an applicant or employee,’ read in conjunction with other relevant provisions, subdivision (m) may reasonably be interpreted to require accommodation based on the employee's association with a physically disabled person. (Ibid [emphasis added; internal citations omitted; cleaned up].) “Again, given plaintiff's concession, we do not decide this point. We only observe that the accommodation issue is not settled and that it appears significantly intertwined with the statutory prohibition against disability discrimination”, where the court went on to find that section 12926(o) permitted an associational claim. (Id. at pp. 1039-1040 [emphasis added.)

Defendant suggests that the Court look to federal precedent interpreting the Americans with Disabilities Act (“ADA”) to resolve this issue.

“Where … the particular provision in question in the FEHA is similar to the one in the ADA, the courts have looked to decisions and regulations interpreting the ADA to guide construction and application of the FEHA.” (Hastings v. Department of Corrections (2003) 110 Cal.App.4th 963, 973 fn. 12.) California courts “often look to federal law interpreting the ADA when construing FEHA, particularly when the question involves parallel statutory language.” (Castro-Ramirez 2, supra, 2 Cal.App.5th at p. 1039.) “But the two statutory schemes are not coextensive. Our Legislature has expressly declared ‘[t]he law of this state in the area of disabilities provides protections independent from those in the [ADA]. Although the federal act provides a floor of protection, this state's law has always, even prior to passage of the federal act, afforded additional protections.’ One instance in which we should part ways with federal case authority is when the statutory language is not parallel.” (Id. at p. 1040 [internal citations omitted].)

“The ADA creates a cause of action for associational disability discrimination using language that structurally is different than FEHA. The general rule is that ‘no covered entity shall discriminate against a qualified individual on the basis of disability....” (42 U.S.C. § 12112(a).) ‘[T]he term “discriminate against a qualified individual on the basis of disability” includes,’ among other things, ‘excluding or otherwise denying equal jobs or benefits to a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a relationship or association.’ (42 U.S.C. § 12112(b)(4).) Unlike FEHA, the ADA does not define the term ‘disability’ itself as including association with the disabled. Instead, it defines discrimination based on association as one type of ‘discriminat[ion] against a qualified individual on the basis of disability.’ Elsewhere, the ADA states ‘discriminat[ing] against a qualified individual on the basis of disability’ also includes ‘not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee.’ (42 U.S.C. § 12112(b)(5)(A), italics added.) One cannot, therefore, read ‘association with a disabled person’ into every use of the term ‘disability’ in the ADA.” (Castro-Ramirez 2, supra, 2 Cal.App.5th at p. 1040.)

“Because of these structural differences, including differences in language for associational disability accommodation, federal precedent (e.g., Erdman v. Nationwide Ins. Co. (3d Cir. 2009) 582 F.3d 500, 510; Larimer v. International Business Machines Corp. (7th Cir. 2004) 370 F.3d 698, 700 (Larimer); Den Hartog v. Wasatch Academy (10th Cir. 1997) 129 F.3d 1076, 1084; Tyndall v. National Educ. Centers (4th Cir. 1994) 31 F.3d 209, 214) is less helpful than in other FEHA interpretations.” (Castro-Ramirez 2, supra, 2 Cal.App.5th at p. 1040.)

The Court notes that Defendant cites each of Erdman, Larimer, and Den Hartog for the proposition that the ADA does not create an accommodation requirement for non-disabled employees associated with a disabled person. However, due to the differing statutory structure discussed above, federal precedent is of limited use in interpreting this particular combination of FEHA provisions – particularly when the Court of Appeal has signaled that it may disapprove such reliance.

Conversely, the concept of leave-type accommodations for non-disabled employees with disabled relatives is not alien to California’s statutory scheme, nor to FEHA itself. The California Family Rights Act (“CFRA”) (Gov. Code, section 12945.2) provides for, among other things, leave to take care of a family member with a medical condition. (Gov. Code, section 12945.2.) “In addition, the Legislature has directed that the FEHA is to be construed ‘liberally’ so as to accomplish its purposes” “to protect and safeguard the right and opportunity of all persons to seek and hold employment free from discrimination”, which the California Supreme Court “has declared … to be ‘fundamental.’” (Brown v. Superior Court (1984) 37 Cal.3d 477, 485-486 [internal citations omitted].) And while it is true that the legislature’s provision for leave protection in CFRA may indicate that the legislature did not intend to create such protections elsewhere, FEHA is no stranger to partially-overlapping protections. (Compare Gov. Code § 12940, subd. (j)(1) [permitting certain harassment claims to be raised against employers] and Gov. Code § 12940, subd. (k) [creating a separate claim for an employer’s failure to prevent harassment].)

Castro-Ramirez 2 expressly drew back from holding that FEHA creates an associational disability accommodation or interactive process cause of action, in significant part because that issue was not before it. However, the Castro-Ramirez court signaled that courts should at least take seriously the possibility of reading 12926(o) together with the accommodation and interactive process statutes. This Court does so. When viewed in light of the legislature’s intent that FEHA be broadly applicable and the legislature’s creation of overlapping employee protections within FEHA, this does not appear to be a case where “a different meaning clearly appears from the context.” (Gov. Code, § 12926.) Rather, it seems appropriate to read 12926(o) in conjunction with sections 12940(m) and (n) and to treat the resulting protection as a non-identical but overlapping protection with CFRA.

The Court notes, as Defendant points out, that the Civil Rights Council, which has responsibility for implementing California civil rights laws, expressed uncertainty as to whether such a claim exists. However, this fact is not conclusive indication that no such claim exists, but rather, an acknowledgement by the Civil Rights Council of the same type of uncertainty acknowledged by the courts.

The Court therefore concludes, at last at the pleading stage, that Plaintiff can state claims for failure to accommodate and failure to engage in an interactive process based on Plaintiff’s association with her son.  The Court denies the motion as to Plaintiff’s claims for failure to accommodate and failure to engage in the interactive process.

Given the unresolved questions of California law that this interlocutory motion raises, however, the Court does not foreclose further arguments on this issue at a later point in this lawsuit.  Defendant may continue to raise this argument as the litigation proceeds.