Judge: Joseph Lipner, Case: 23STCV27503, Date: 2024-02-06 Tentative Ruling

Case Number: 23STCV27503    Hearing Date: February 6, 2024    Dept: 72

SUPERIOR COURT OF CALIFORNIA

COUNTY OF LOS ANGELES

DEPARTMENT 72

TENTATIVE RULING

Defendant Mrs. Gooch’s Natural Food Markets, Inc. d/b/a Whole Foods Market (“Defendant”) demurs to the eighth cause of action in the Complaint filed by Plaintiff Mario Vasquez Gallegos (“Plaintiff”). Defendant also moves to strike Plaintiff’s prayer for punitive damages and related allegations.

The Court SUSTAINS Defendant’s demurrer as to the eighth cause of action WITHOUT LEAVE TO AMEND.

The Court GRANTS Defendant’s motion to strike WITH LEAVE TO AMEND.  Plaintiff may amend the complaint with respect to the punitive damages claim within 20 days of this order.

Background

This action concerns Plaintiff’s employment relationship with Defendant. The following facts are taken from the allegations in the Complaint.

Defendant hired Plaintiff as a cook on September 21, 2012.

On June 26, 2020, Plaintiff tested positive for Covid-19. Around June 28, 2020, Plaintiff’s health deteriorated because his oxygen levels decreased, and Plaintiff was admitted to the hospital and placed on a ventilator. Plaintiff’s breathing was impaired by Covid-19. Plaintiff was discharged from the hospital on August 27, 2020.

Plaintiff’s doctor instructed Plaintiff to undergo therapy to regain Plaintiff’s ability to breathe and walk and placed on medical leave until December 28, 2020. Plaintiff and his sister informed Defendant of these developments.

On November 9, 2020, while Plaintiff was still on medical leave and undergoing therapy, Defendant terminated Plaintiff’s employment.

Plaintiff filed this action against Defendant on November 9, 2023, alleging, among other things, wrongful termination in violation of public policy.

Defendant demurred to the Complaint on December 28, 2023 and concurrently filed a motion to strike. Plaintiff filed oppositions to each, and Defendant replied to each opposition.

Legal Standard

Demurrer

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).

Motion to Strike

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.)

Discussion

Statute of Limitations

Defendant argues that Plaintiff’s claim for wrongful termination in violation of public policy is barred by the 2-year statute of limitations for common-law torts. Plaintiff  does not deny that a 2-year statute would bar his claim.  Plaintiff argues, however, that he timely filed his claim within FEHA’s 3-year statute of limitations.

“[W]hen a plaintiff relies upon a statutory prohibition to support a common law cause of action for wrongful termination in violation of public policy, the common law claim is subject to statutory limitations affecting the nature and scope of the statutory prohibition, but the common law claim is not subject to statutory procedural limitations affecting only the availability and scope of nonexclusive statutory remedies.” (Stevenson v. Superior Court (1997) 16 Cal.4th 880, 904.) Accordingly, “the two-year statute of limitations under Code of Civil Procedure section 335.1 applies to a common law tort cause of action for wrongful termination in violation of FEHA's public policy against disability discrimination.” (Prue v. Brady Co./San Diego, Inc. (2015) 242 Cal.App.4th 1367, 1382.)

Plaintiff’s eighth cause of action for wrongful termination is pled under the common law; Plaintiff has separately pled FEHA claims for discriminatory and retaliatory termination. However, because Plaintiff’s wrongful termination cause of action is itself a common law tort claim, albeit based in a statutory right, it is subject to the two-year tort statute of limitations.

This defect in Plaintiff’s claim could not be cured by amendment. The Court therefore sustains the demurrer without leave to amend.

Motion to Strike

Punitive damages are appropriate when a defendant acted with malice, oppression, or fraud. (Civ. Code, § 3294, subd. (a).) “In order to survive a motion to strike an allegation of punitive damages, the ultimate facts showing an entitlement to such relief must be pled by a plaintiff.” (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.) “In passing on the correctness of a ruling on a motion to strike, judges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth.” (Ibid.) “In ruling on a motion to strike, courts do not read allegations in isolation.” (Ibid.)

Here, Plaintiff makes general allegations that Defendant’s officers acted with malice, oppression, or fraud, but these allegations are merely conclusory – they do not state facts that actually show such malice oppression, or fraud, nor do they identify the officers that allegedly performed that conduct.

The Court therefore grants the motion to strike with leave to amend.