Judge: Joseph Lipner, Case: 23STCV09343, Date: 2024-01-25 Tentative Ruling
Case Number: 23STCV09343 Hearing Date: January 25, 2024 Dept: 72
SUPERIOR COURT OF CALIFORNIA
COUNTY OF LOS ANGELES
DEPARTMENT 72
TENTATIVE
RULING
|
JUAN MENDOZA, Plaintiff, v. ZIBAALI AUTOMOTIVE GROUP, INC., et
al., Defendants. |
Case No:
23STCV09343 Hearing Date: January 25, 2024 Calendar Number: 9 |
Defendant Zibaali Automotive Group, Inc. (“Zibaali”) demurs
to the Second Amended Complaint (“SAC”) filed by Plaintiff Juan Mendoza
(“Plaintiff”).
The Court OVERRULES the demurrer.
The Court DENIES the motion to strike Plaintiff’s claims for
punitive damages.
The Court GRANTS the motion to strike Plaintiff’s claim for
attorney’s fees for the seventh cause of action for failure to provide meal and
rest breaks.
The following facts come from Plaintiff’s SAC.
Zibaali employed Plaintiff as a tire technician beginning
around June 2016.
In September 2017, Plaintiff suffered an injury to his leg
while on the job which required him to go to an Urgent Care location to receive
treatment. Plaintiff informed his boss, Amir Doe (“Amir”) of the injury. The
injury left Plaintiff with ongoing pain.
In June 2021, Plaintiff’s leg injury reopened, causing the
pain to become unbearable. Plaintiff’s doctor prescribed Plaintiff a
three-month leave of absence until October 2021 to allow Plaintiff’s leg wound
to heal.
In October 2021, Plaintiff’s doctor prescribed an additional
three-month leave of absence. Plaintiff informed Ross Doe (“Ross”), who
Plaintiff alleges to be one of Zibaali’s owners, about this doctor’s advice.
Ross told Plaintiff not to return to work, that he was “no longer needed,” that
he “gets sick too much,” and that Plaintiff had already been replaced by
another technician.
Plaintiff filed this action against Zibaali, Ross, and Amir
on April 26, 2023. The operative complaint is now the SAC, which raises claims
for (1) disability discrimination; (2) failure to participate in an interactive
process; (3) failure to provide reasonable accommodation; (4) failure to
prevent discrimination, harassment, and retaliation; (5) violation of the
California Family Rights Act (“CFRA”); (6) wrongful termination in violation of
public policy; (7) failure to provide meal and rest periods; and (8) failure to
pay wages when due.
As a general matter, 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 pleading
alone, and not the evidence or facts alleged.” (E-Fab, Inc. v. Accountants,
Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.) The court assumes the truth
of the complaint’s properly pleaded or implied factual allegations. (Ibid.) The only issue a demurrer is
concerned with is whether the complaint, as it stands, states a cause of
action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.)
Where a demurrer is sustained, leave to amend must be
allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335,
348.) The burden is on the plaintiff to show the court that a pleading can be
amended successfully. (Ibid.;
Lewis v. YouTube, LLC (2015) 244 Cal.App.4th 118, 226.) However, “[i]f
there is any reasonable possibility that the plaintiff can state a good cause
of action, it is error to sustain a demurrer without leave to amend.” (Youngman v. Nevada Irrigation Dist.
(1969) 70 Cal.2d 240, 245).
The court may, upon a motion, or at any time in its
discretion, and upon terms it deems proper, strike any irrelevant, false, or
improper matter inserted in any pleading. (Code Civ. Proc., § 436(a).) The
court may also strike all or any part of any pleading not drawn or filed in
conformity with the laws of this state, a court rule, or an order of the court.
(Code Civ. Proc., § 436(b).) The grounds for a motion to strike are that the
pleading has irrelevant, false or improper matter, or has not been drawn or
filed in conformity with laws. (Code Civ. Proc., § 436.) The grounds for moving
to strike must appear on the face of the pleading or by way of judicial notice.
(Code Civ. Proc., § 437.)
Plaintiff has specifically alleged that Zibaali is an
employer pursuant to FEHA. He has also
specifically alleged that he is an employer under various provisions of the
Government Code and also for the purposes of the California Family Rights
Act. Plaintiff has adequately pled that
Zibaali is an employer.
“A prima facie case of disability discrimination under FEHA
requires a showing that (1) the plaintiff suffered from a disability, (2) the plaintiff
was otherwise qualified to do his or her job, with or without reasonable
accommodation, and (3) the plaintiff was subjected to adverse employment action
because of the disability.” (Castro-Ramirez v. Dependable Highway Express,
Inc. (2016) 2 Cal.App.5th 1028, 1037.)
A person is “physically disabled” as defined by FEHA if,
among other things, the individual:
(1) Has a
physiological condition that both (a) affects a specific bodily system and (b)
limits a major life activity;
(2) Has any other
health impairment requiring special education or similar services;
(3) Has a “record or history of” such a physiological
condition; or
(4) Is “regarded or
treated by” the individual's employer as having, or having had, any condition
that makes achievement of a major life activity difficult, or (5) as having, or
having had, a physiological condition that is not presently disabling, but that
may become so.
(Gov. Code, § 12926, subd. (m).)
Plaintiff has alleged that he had a long-term leg wound
which reopened, causing him unbearable pain and requiring his absence from work
to recover. This constitutes substantial interference with a major life
activity. Plaintiff has therefore adequately alleged that he has a disability.
Plaintiff has alleged that “[t]hroughout Plaintiff’s
employment with Defendants, he performed his duties and responsibilities in an
exemplary manner.” (SAC at p. 3:14-17.) Plaintiff has thus adequately alleged
that he was qualified to perform his duties.
Plaintiff has adequately alleged that he was subjected to
adverse action as a result of the disability because he was terminated for
taking leave to recover from it, being specifically told that he was sick too
often.
The Court overrules the demurrer to this cause of action.
“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. 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.” (Swanson v. Morongo Uni¿ed School Dist.
(2014) 232 Cal.App.4th 954, 971–972 [internal citations and quotation marks
omitted].)
As discussed above, Plaintiff has adequately alleged that he
had a disability requiring accommodation. Plaintiff has also alleged that
Zibaali did not engage in an interactive process with him. Although the
responsibility for the breakdown of an interactive process lies with
whoever fails to engage in good faith, here, Zibaali did not start the process
to begin with. The fact that Plaintiff does not allege to have provided
Defendants with medical records thus does not factor into the equation at this
point.
The Court overrules the demurrer to this cause of action.
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.)
As discussed above, Plaintiff has adequately alleged that he
had a disability requiring accommodation. Plaintiff has alleged that Zibaali
terminated him instead of providing him with an accommodation in the form of
time off from work to recover, as prescribed by his doctor. Plaintiff has thus
adequately alleged this cause of action.
The Court overrules the demurrer to this cause of action.
The elements of a cause of action for failure to prevent
harassment or retaliation are: (1) actionable discrimination or harassment by
employees or nonemployees; (2) defendant’s legal duty of care toward plaintiff
(i.e., defendant is the plaintiff’s employer); (3) breach of that duty (i.e.,
failure to take all reasonable steps necessary to prevent discrimination and
harassment from occurring); (4) legal causation; and (5) damages to plaintiff.
(Trujillo v. North County Transit
District (1998) 63 Cal.App.4th 280, 287, 289; Bradley v. Department of Corrections & Rehabilitation (2008)
158 Cal.App.4th 1612, 1630; Gov. Code, § 12940.)
As discussed above, Plaintiff has adequately alleged
discrimination on the basis of his disability. Plaintiff has further alleged
that Zibaali failed to properly train and supervise its supervisors and that
Zibaali permitted its supervisors to discriminate against Plaintiff and
terminate him because of his disability. Plaintiff has adequately pled this
cause of action.
Zibaali argues that Plaintiff has not exhausted his
administrative remedies as to this cause of action because he did not include
failure to prevent discrimination in his administrative complaint.
“The administrative exhaustion requirement is satisfied if
the allegations of the civil action are within the scope of the EEOC charge,
any EEOC investigation actually completed, or any investigation that might
reasonably have been expected to grow out of the charge. Thus, the judicial
complaint may encompass any discrimination like and reasonably related to the
allegations of the EEOC charge. Administrative charges are to be construed
liberally because they are often drafted by claimants without the assistance of
counsel. Accordingly, [i]t is sufficient that the EEOC be apprised, in general
terms, of the alleged discriminatory parties and the alleged discriminatory
acts.” (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 266-267
[citations and quotation marks omitted].)
Here, Plaintiff unambiguously exhausted as to his other
claims for disability discrimination and failure to accommodate. Failure to
prevent such discrimination is “like and reasonably related to” the
discrimination itself, and investigation into that matter could reasonably be
expected to grow out of the initial discrimination charge. (Nazir, supra,
178 Cal.App.4th at p. 266.)
The Court overrules the demurrer to this cause of action.
A cause of action for retaliation for taking CFRA medical
leave is brought pursuant to Government Code section 12945.2, subdivision
(l), which provides that “[i]t shall be an unlawful employment practice for an
employer to . . . discharge . . . or discriminate against, any individual
because of . . . [¶] (1) An individual’s exercise of the right to family care
and medical leave provided by” the CFRA. (Gov. Code, § 12945.2, subd.
(l).)
“The elements of a cause of action for retaliation in
violation of CFRA are: ‘ “(1) the defendant was an employer covered by CFRA;
(2) the plaintiff was an employee eligible to take CFRA [leave]; (3) the
plaintiff exercised her right to take leave for a qualifying CFRA purpose; and
(4) the plaintiff suffered an adverse employment action, such as termination,
fine, or suspension, because of her exercise of her right to CFRA [leave].” ’
[Citation.] Similar to causes of action under FEHA, the McDonnell Douglas
burden shifting analysis applies to retaliation claims under CFRA.” (Moore
v. Regents of University of California (2016) 248 Cal.App.4th 216,
248.)
Zibaali’s
only objection to this claim is that Plaintiff has not adequately pled that
FEHA applies. As discussed above, Plaintiff has adequately pled that FEHA
applies.
The Court overrules the demurrer to this cause of action.
“The elements of a claim for wrongful discharge in violation
of public policy are (1) an employer-employee relationship, (2) the employer
terminated the plaintiff’s employment, (3) the termination was substantially
motivated by a violation of public policy, and (4) the discharge caused the
plaintiff harm. It is well established that a termination premised on an
employee’s refusal to violate either a statute or an administrative regulation
may support a claim for wrongful termination in violation of public policy.” (Nosal-Tabor v. Sharp Chula Vista Medical Center
(2015) 239 Cal.App.4th 1224, 1234, citation omitted.)
Zibaali’s only arguments on this cause of action are (1)
that Zibaali was not Plaintiff’s employer, and (2) that Zibaali did not violate
public police. As discussed above, Plaintiff has adequately pled each of these
issues.
The Court overrules the demurrer to this cause of action.
An employer must give its employees a 30-minute meal within
the first 5 hours of their shift and rest breaks. (Lab. Code, §§ 226.7(a),
512(a); IWC Wage Order No. 4-2001.) “The employer satisfies this obligation if
it relieves its employees of all duty, relinquishes control over their
activities and permits them a reasonable opportunity to take an uninterrupted
30-minute break, **537 and does not impede or discourage them from doing so.” (Brinker
Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1040.) As such,
“an employee must show that he was forced to forego his meal [and rest] breaks
as opposed to merely showing that he did not take them regardless of the
reason.” (White v. Starbucks Corp. (N.D. Cal. 2007) 497 F.Supp.2d 1080,
1089.)
Plaintiff has pled this claim with adequate specificity. It
is not necessary for Plaintiff to identify each day on which he was denied
breaks at the pleading stage.
Zibaali argues that section 226.7 is a penalty, and thus
subject to a one-year statute of limitations under Code of Civil Procedure,
section 340. The California Supreme Court has held that section 226.7 is a
remedy, and not a penalty, and it is thus error to apply a one-year statute of
limitations. (Murphy v. Kenneth Cole Productions, Inc. (2007) 40 Cal.4th
1094, 1114.)
Under the continuing violation doctrine, incidents for which
the filing would be individually untimely can be considered if they are
cumulatively part of an ongoing unlawful practice with incidents that do fall
within the statute of limitations. (Richards
v. CH2M Hill, Inc. (2001) 26 Cal. 4th 798, 811-824.) Thus, as a liability
created by statute, section 226.7 carries a 3-year statute of limitations.
(Code Civ. Proc., § 338. subd. (a).)
The Court overrules the demurrer to this cause of action.
It is well-settled policy in California that all of an
employee’s earned wages must be fully and promptly paid. (Smith v. Superior
Court (2006) 39 Cal.4th 77, 82.) Failure to promptly pay wages results in a
waiting time penalty whereby the wages continue to accrue up to a maximum of 30
days. (Lab. Code § 203.)
“‘Wages’ includes all amounts for labor performed by
employees of every description, whether the amount is fixed or ascertained by
the standard of time, task, piece, commission basis, or other method of
calculation.” (Lab. Code, § 200.) Bonuses are treated was wages when the bonus
is promised as part of compensation and the employee fulfills any agreed-to
conditions for the bonus. (Neisendorf v. Levi Strauss & Co. (2006)
143 Cal.App.4th 509, 522.)
All earned wages are due and payable immediately upon an
employee’s termination. (Lab. Code, § 201, subd. (a).)
Plaintiff alleges that Zibaali failed to pay overtime wages
that Plaintiff earned. (SAC at p. 23:7-10.)
Zibaali argues that this cause of action is a penalty and is
therefore subject to the one-year statute of limitations. However, Plaintiff
seeks the payment of overtime wages actually owed in addition to
penalties, making this claim both remedial and punitive. The Court therefore
overrules the demurrer.
Zibaali seeks to strike Plaintiff’s allegations of punitive
damages and attorney’s fees.
Punitive damages require clear “clear and convincing
evidence that the defendant has been guilty of oppression, fraud, or malice[.]”
(Civ. Code, § 3294.)
Plaintiff has adequately pled facts showing malice. Here, according
to Plaintiff, Defendants explicitly told Plaintiff that they terminated him for
being sick too much. These facts are adequate to allege malice at the pleading
stage. Plaintiff has also pled that Zibaali ratified this conduct, because it
was conducted by Ross, an owner. The Court denies the motion to strike as to
punitive damages.
Zibaali argues that attorney’s fees cannot be recovered in
the seventh cause of action for failure to provide meal and rest breaks.
“[T]he Legislature intended section 226.7 claims to be
governed by the default American rule that each side must cover its own
attorney's fees.” (Kirby v. Immoos Fire Protection, Inc. (2012) 53
Cal.4th 1244, 1259, superseded by statute on other grounds as stated in USS-Posco
Industries v. Case (2016) 244 Cal.App.4th 197, 216.) Section 226.7 is not
an action for the nonpayment of wages, and therefore does not qualify for
attorney’s fees under Labor Code, section 218.6. (Naranjo v. Spectrum
Security Services, Inc. (2022) 13 Cal.5th 93, 122.) Although the Naranjo
court found that missed-break premium pay constitutes wages for the purposes of
assessing waiting time penalties (Id. at p. 117), the Court
explicitly remained faithful to the reasoning set out in Kirby, whereby
the action for failure to provide breaks is not an action for unpaid
wages for the purposes of attorney’s fees or prejudgment interest. (Id.
at p. 122.)
The Court therefore grants the motion to strike Plaintiff’s
claim for attorney’s fees for the seventh cause of action.