Judge: Joseph Lipner, Case: 23STCV31080, Date: 2024-03-19 Tentative Ruling
Case Number: 23STCV31080 Hearing Date: March 19, 2024 Dept: 72
SUPERIOR COURT OF CALIFORNIA
COUNTY OF LOS ANGELES
DEPARTMENT 72
TENTATIVE
RULING
|
JESSE VARGAS, Plaintiff, v. PQM, INC., et al., Defendant. |
Case No:
23STCV31080 Hearing Date: March 19, 2024 Calendar Number: 5 |
Defendants Erin Hoy, Zale Harris (collectively, the
“Individual Defendants”), and PQM, Inc. (“PQM”) (collectively, “Defendants”)
demur to the Complaint filed by Plaintiff Jesse Vargas (“Plaintiff”).
The Court OVERRULES the demurrer to the fourth, fifth,
sixth, ninth, and fifteenth causes of action.
The Court SUSTAINS the demurrer to the thirteenth claim
WITHOUT LEAVE TO AMEND. However, Plaintiff may amend his complaint to allege a
claim for failure to prevent discrimination, harassment, and retaliation.
The Court SUSTAINS the demurrer to the remaining claims WITH
LEAVE TO AMEND.
This is an employment case. The following facts are taken
from the allegations in the FAC, except where otherwise noted.
Plaintiff was employed with PQM as an inspector on public
works projects form 2021 until his termination on January 26, 2022. Plaintiff
is a Hispanic man and is over 40 years old. Defendant Hoy, PQM’s manager and
owner, and Defendant Harris, Plaintiff’s manager, are both Caucasian women.
Plaintiff alleges that Defendants wrongfully accused him of
committing a crime based on the perception that he was a ‘gang member’ of a
Latino ‘motorcycle gang’ and based on his age, race, ethnicity, color, gender, disability
status, family status, and association with others. Plaintiff alleges that
Defendants discriminated against, harassed, and wrongfully terminated him.
The primary basis for these allegations is that Harris and
Hoy attributed a threatening call that Harris received on January 25, 2022.
Plaintiff alleges that the Individual Defendants wrongfully assumed that the
call was from Plaintiff because of their perception that he was a member of a
Latino ‘motorcycle gang.’ Hoy asked for Plaintiff’s resignation on that day.
Plaintiff denied that he had made the call and refused to resign until
Defendants fully investigated the claim.
On January 26, 2022, Plaintiff met with Defendants again.
Defendants terminated Plaintiff’s employment, effective January 28, 2022.
Plaintiff alleges that prior to his employment, Plaintiff
and PQM entered a written and verbal contract (the “Pre-Employment Contract”) whereby
PQM agreed that Plaintiff would be treated fairly, that he would be provided a
safe and fair workplace, the leave that he was entitled to under the law,
evaluated for accommodation and accommodated.
Plaintiff alleges that, after his termination, PQM agreed to
an express written settlement (the “Settlement”) with Plaintiff on November 25,
2022. Plaintiff returned and signed the Settlement to PQM. Plaintiff alleges
that PQM breached the Settlement by failing to make payments to Plaintiff that
were due beginning in December 2022.
Plaintiff filed this action on December 20, 2023, raising
claims for (1) breach of express written contract; (2) breach of implied
contract; (3) breach of the covenant of good faith and fair dealing; (4)
wrongful termination; (5) discrimination; (6) retaliation in violation of FEHA
and CFRA; (7) harassment; (8) violation of Labor Code sections 230, et seq.;
(9) retaliation under Labor Code section 1102.5; (10) violation of Labor Code,
section 1198.5; (11) fraudulent inducement; (12) intentional infliction of
emotional distress (“IIED”); (13) negligence; (14) violation of Civil Code
sections 51, et seq. (the Unruh Civil Rights Act and Ralph Act), and 52.1 (the
Bane Act); and (15) unfair competition in violation of Business and Professions
Code, section 17200.
Defendants demurred to the Complaint on February 20, 2024.
Plaintiff filed an opposition and Defendants filed a reply.
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).
If a breach of contract claim “is based on alleged breach of
a written contract, the terms must be set out verbatim in the body of the
complaint or a copy of the written agreement must be attached and incorporated
by reference.” (Harris v. Rudin, Richman
& Appel (1999) 74 Cal.App.4th 299, 307.) In some circumstances, a
plaintiff may also “plead the legal effect of the contract rather than its
precise language.” (Construction
Protective Services, Inc. v. TIG Specialty Ins. Co. (2002) 29 Cal.4th 189,
198-199.)
Defendants argue that Plaintiff’s contract claims are vague
because he fails to set forth the terms of the contracts. Indeed, Plaintiff has
failed to attach or quote the terms of the contracts in his Complaint, despite
his allegations that both the Pre-Employment Contract and the Settlement are
allegedly written contracts.
The Court therefore sustains the demurrer to this claim with
leave to amend.
Plaintiff’s only allegations of an implied contract are in
fact the same allegations that the parties entered into the express written
Pre-Employment Contract and Settlement. The Court therefore sustains the
demurrer with leave to amend for the same reasons.
“A breach of the implied covenant of good faith and fair
dealing involves something beyond breach of the contractual duty itself and it
has been held that bad faith implies unfair dealing rather than mistaken
judgment.” (Careau & Co. v. Security
Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1394.) “If the
allegations do not go beyond the statement of a mere contract breach and,
relying on the same alleged acts, simply seek the same damages or other relief
already claimed in a companion contract cause of action, they may be
disregarded as superfluous as no additional claim is actually stated … [T]he
only justification for asserting a separate cause of action for breach of the
implied covenant is to obtain a tort recovery.” (Id. at pp. 1394-1395.) To recover in tort for breach of the implied
covenant, the defendant must “have acted unreasonably or without proper cause.”
(Id. at p. 1395 [citations and
italics omitted].)
Because this claim relies on the breach of contract claims,
the Court sustains the demurrer with leave to amend.
“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.)
Defendants argue that this cause of action is unclear as to
what conduct Plaintiff alleges shows wrongful termination. However, Plaintiff
has adequately alleged that Defendants terminated him based on a perception
that he was in a Latino motorcycle gang and that he was therefore dangerous.
The Court overrules the demurrer to this cause of action.
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.)
As discussed above, Plaintiff has adequately alleged that
Defendants terminated him based on a perception that he was in a Latino
motorcycle gang and that he was therefore dangerous. Defendants argue that
those allegations from Plaintiff are conclusory. However, at the pleading
stage, a plaintiff need only allege ultimate facts, and not evidentiary facts,
sufficient to apprise the defendant of the factual basis for the claim against
him. (Semole v. Sansoucie (1972) 28 Cal. App. 3d 714, 721.)
The Court overrules the demurrer to this cause of action.
“To establish a prima facie case of retaliation under the
[Fair Employment and Housing Act] FEHA, a plaintiff must show (1) he or she
engaged in a ‘protected activity,’ (2) the employer subjected the employee to
an adverse employment action, and (3) a causal link existed between the
protected activity and the employer’s action.” (Meeks v. Autozone, Inc. (2018) 24 Cal.App.5th 855, 878-879,
brackets omitted.) “An ‘adverse employment action,’ which is a critical
component of a retaliation claim, 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.)
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.)
Plaintiff alleges that Defendants terminated him because
they believed he would have to take time off under CFRA and would require
disability accommodations.
The basis for Plaintiff’s disability and CFRA retaliation
claim appears to be an incident that occurred on January 7, 2022. (See
generally Complaint p. 3, ¶ 6.) On that day, Plaintiff was ill and believed he
had had Covid-19. Plaintiff tested negative, but contacted Harris and informed
her of his sickness and the test. Harris first told Plaintiff not to come in
and get her sick, and later asked why Plaintiff was not at work yet. Plaintiff
thereafter came into work. Plaintiff alleges that he was then denied an
interactive process relating to “his illness and disabling conditions.” Plaintiff
alleges that Harris received preferential treatment when she had similar
issues.
Plaintiff alleges that Defendants believed he would have to
take time off for family leave, and terminated him as a result. (Complaint at
p. 13, ¶ 59.) Plaintiff also alleges that he was denied accommodation – by
which he appears to mean sick leave. (Complaint at p. 13, ¶ 60.)
Plaintiff has pled adequate facts showing that he was denied
sick leave. Further, the temporal proximity between Plaintiff’s sickness and
his termination creates an adequate basis, at the pleading stage, for Plaintiff
to allege that Plaintiff’s request for sick leave was a motivating factor in
his termination.
The Court overrules the demurrer to this cause of action.
To establish a prima facie case of a hostile work
environment, [the plaintiff] must show that (1) [plaintiff] is a member of a
protected class; (2) [plaintiff] was subjected to unwelcome harassment; (3) the
harassment was based on [plaintiff’s] protected status; (4) the harassment
unreasonably interfered with [plaintiff’s] work performance by creating an
intimidating, hostile, or offensive work environment; and (5) defendants are
liable for the harassment.” (Ortiz v. Dameron Hospital
Assn. (2019) 37 Cal.App.5th 568, 581.)
“[T]he adjudicator’s inquiry should center, dominantly, on
whether the discriminatory conduct has unreasonably interfered with the
plaintiff’s work performance. To show such interference, ‘the plaintiff need
not prove that his or her tangible productivity has declined as a result of the
harassment.’ It suffices to prove that a reasonable person subjected to the
discriminatory conduct would find, as the plaintiff did, that the harassment so
altered working conditions as to ‘make it more difficult to do the job.’ ” (Harris
v. Forklift Sys. (1993) 510 U.S. 17, 25, conc. opn. of Ginsburg, J.; see
Gov. Code, § 12923, subd. (a) [endorsing this language as reflective of
California law].) A single incident of harassment may be enough to constitute a
hostile work environment if it “unreasonably interfered with the plaintiff’s
work performance or created an intimidating, hostile, or offensive working
environment.”¿ (Gov. Code, § 12923, subd. (b).)¿ The court shall use the
totality of the circumstances to determine whether there exists a hostile work
environment.¿ (Gov. Code, § 12923, subd. (c).)¿
Plaintiff pleads that “Defendants’ conduct constitutes
wrongful harassment including refusing to conduct an interactive evaluation and
refusing accommodation, terminating Plaintiff’s employment, based upon
Plaintiff’s age, race, ethnicity, color, gender, disability, perceived
disability, perceived need for disability, family leave and accommodation, and
association with others in violation of the CFRA, FEHA, and its administrative
provisions.” (Complaint at ¶ 69.)
The wrongful conduct that Plaintiff alleges, then appears to
be duplicative of that alleged under his discrimination, wrongful termination,
and CFRA retaliation claims. “[T]he exercise of personnel management authority
properly delegated by an employer to a supervisory employee might result in
discrimination, but not in harassment.” (Reno v. Baird (1998) 18 Cal.4th
640, 646.) Thus, these actions do not form a basis for harassment.
The Court sustains the demurrer with leave to amend.
Labor Code, section 230 prohibits employers from
discriminating or retaliating against employees for taking time off to serve on
a jury, appear as a witness in court, or seek injunctive relief such as a
temporary restraining order. (Lab. Code, § 230.) It also prohibits
discrimination against an employee on the basis that they are the victim of
abuse or a crime. (Ibid.)
Plaintiff does not clearly allege which of the prohibited
actions Defendants took, or what protected category he falls in.
The Court sustains the demurrer to this cause of action with
leave to amend.
The Labor Code’s whistleblower provision prohibits an
employer from retaliating against an employee who reports a violation of state
or federal statute or a local, state or federal rule or regulation or who
refuses to participate in any activity that would result in a violation of law.
(Lab. Code, § 1102.5.) To prevail on whistleblower retaliation claim, a
plaintiff must establish that their alleged protected activated was a
contributing factor in the adverse action taken against them. (Lab. Code, §
1102.5.)
Plaintiff alleges that he complained about conduct by
Defendants that violated FEHA, and that Defendants believed he would report
said conduct to a government agency and retaliated against him as a result.
Plaintiff has adequately pled the ultimate facts in support of this cause of
action.
The Court overrules the demurrer to this cause of action.
Labor Code, section 1198.5 requires that an employer make
available the contents of a former employee’s personnel records to the employee
within 30 days of a request by the former employee. (Lab. Code, § 1198.5,
subds. (a), (b)(1).)
Plaintiff alleges that he was not provided his records, but
does not allege when he made a request, whether any parts of the file were
provided, when any such productions were made, or what was missing from any
production.
Defendants argue that Plaintiff cannot allege a violation of
section 1198.5 because Defendants did in fact timely provide Plaintiff with his
records. As these are extrinsic facts, the Court cannot consider them at the
pleading stage.
The Court sustains the demurrer to this cause of action with
leave to amend.
“The elements of fraud,” including a cause of action for
fraudulent inducement, “are (a) a misrepresentation (false representation,
concealment, or nondisclosure); (b) scienter or knowledge of its falsity; (c)
intent to induce reliance; (d) justifiable reliance; and (e) resulting damage.”
(Hinesley v. Oakshade Town Ctr.
(2005) 135 Cal.App.4th 289, 294.) The facts constituting the alleged fraud must
be alleged factually and specifically as to every element of fraud, as the
policy of “liberal construction” of the pleadings will not ordinarily be
invoked. (Lazar v. Superior Court (1996)
12 Cal.4th 631, 645.) To properly allege fraud against a corporation, the
plaintiffs must plead the names of the persons allegedly making the false
representations, their authority to speak, to whom they spoke, what they said
or wrote, and when it was said or written. (Tarmann
v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 157.)
Plaintiff does not allege what false representations
Defendants made, who, specifically, made them, their authority to speak, and
when the representations were made.
The Court sustains the demurrer to this cause of action with
leave to amend.
“The elements of a prima facie case for the tort of
intentional infliction of emotional distress are: (1) extreme and outrageous
conduct by the defendant with the intention of causing, or reckless disregard
of the probability of causing, emotional distress; (2) the plaintiff’s
suffering severe or extreme emotional distress; and (3) actual and proximate
causation of the emotional distress by the defendant’s outrageous conduct.
Conduct to be outrageous must be so extreme as to exceed all bounds of that usually
tolerated in a civilized community.” (Wilson
v. Hynek (2012) 207 Cal.App.4th 999, 1009, citation and ellipses omitted.)
Plaintiff alleges that Defendant’s harassment of Plaintiff
also constituted extreme and outrageous conduct. However, as discussed above,
the alleged harassment comes down to personnel management decisions.
“Managing personnel is not outrageous conduct beyond the bounds
of human decency, but rather conduct essential to the welfare and prosperity of
society. A simple pleading of personnel management activity is insufficient to
support a claim of intentional infliction of emotional distress, even if
improper motivation is alleged. If personnel management decisions are
improperly motivated, the remedy is a suit against the employer for
discrimination.” (Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th
55, 80.) Thus, Plaintiff has not alleged extreme and outrageous conduct.
The Court sustains the demurrer to this cause of action with
leave to amend.
In order to state a claim for negligence, Plaintiff must
allege the elements of (1) “the existence of a legal duty of care,” (2) “breach
of that duty,” and (3) “proximate cause resulting in an injury.” (McIntyre v. Colonies-Pacific, LLC (2014)
228 Cal.App.4th 664, 671.)
Plaintiff alleges that Defendants negligently failed to
prevent harassment, discrimination, and retaliation. This cause of action
sounds in failure to prevent harassment, discrimination, and retaliation under
FEHA – not in negligence. (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.)
The Court sustains the demurrer to this cause of action
without leave to amend. However, Plaintiff may amend his complaint to allege a
claim for failure to prevent discrimination, harassment, and retaliation.
The elements of a claim for
violation of the Unruh Civil Rights Act are (1) defendant is a business
establishment, (2) defendant intentionally denied plaintiff accommodations,
advantages, privileges, facilities, or services, (3) defendant was motivated to
do so based on its perception that plaintiff belonged to a statutorily defined
group, (4) plaintiff was harmed, and (5) defendant’s conduct was a substantial
factor in causing plaintiff’s harm. (See Civ. Code, § 51; In re Cox (1970) 3 Cal.3d 205, 216.) “The objective of the Act is
to prohibit businesses from engaging in unreasonable, arbitrary or invidious
discrimination. Therefore, the Act applies not merely in situations where
businesses exclude individuals altogether, but also where treatment is unequal.”
(Pizarro v. Lamb’s Players Theatre (2006)
135 Cal.App.4th 1171, 1174, citations omitted.)
The elements of a claim for violations of the Tom Bane Civil
Rights Act are (1) the defendant interfered with or attempted to interfere with
the plaintiff’s constitutional or statutory rights by threatening or committing
violent acts; (2) the plaintiff reasonably believed that if he or she exercised
his or her constitutional rights the defendant would commit violence against
him or her or his or her property, or the defendant injured the plaintiff or
his or her property to prevent him or her from exercising his or her
constitutional rights or retaliated against the plaintiff for having exercised
his or her constitutional rights; (3) the plaintiff was harmed; and (4) the
defendant’s conduct was a substantial factor in causing the plaintiff’s harm.
(Civ. Code, § 52.1; Austin B. v. Escondido Union School Dist., supra,
149 Cal.App.4th at p. 882.)
“The Unruh Civil Rights Act has no application to employment
discrimination.” (Rojo v. Kliger (1990) 52 Cal.3d 65, 77.) Thus,
Plaintiff cannot state a claim under the Unruh Act.
However, “sections 51.7 and 52.1 are not part of the Unruh
Act” and “nothing in either the language of sections 51.7 and 52.1 or in their
history expresses a legislative intent to exclude employment discrimination or
other employment cases from their ambit.” (Stamps v. Superior Court
(2006) 136 Cal.App.4th 1441, 1456-1459.)
Section 51.7 (the Ralph Act) forbids “violence, or
intimidation by threat of violence” committed because of the target’s
membership in a protected category. (Civ. Code, § 51.7, subd. (b)(1).) Section 52.1 (the Bane Act) is similarly
intended to “stem the number of hate crimes which the Legislature recognized
had grown to an alarming proportion.” (Stamps v. Superior Court, supra,
136 Cal.App.4th at 1457.)
Plaintiff alleges that he was the victim of a hate crime,
but not who committed it, where it happened, or what it was. It is unclear what
causal involvement Defendants had, if any.
The Court sustains the demurrer to this cause of action with
leave to amend.
Defendants argue that claim fails because it is derivative
of Plaintiff harassment, discrimination, retaliation, and wrongful termination
claims. Because some of those claims survive, the Court overrules the demurrer
to this claim.