Judge Kerry Bensinger, Case Number: 24STCV15898, Date: 2024-10-17 Tentative Ruling

This is a Fair Employment and Housing Act (FEHA) action. On June 25, 2024, plaintiff Henry Bell (Bell or Plaintiff) filed a Complaint against his former employer defendant KKW Trucking, Inc. (KKW) alleging causes of action for (1) disability discrimination in violation of the FEHA, (2) failure to provide reasonable accommodations in violation of the FEHA, (3) failure to engage in a good faith interactive process in violation of the FEHA, (4) retaliation in violation of FEHA, (5) failure to prevent discrimination and retaliation in violation of the FEHA, and (6) wrongful termination in violation of public policy.

On August 1, 2024, KKW filed a demurrer to the second and third causes of action and concurrently filed a motion to strike punitive damages allegations from the Complaint.

A demurrer for sufficiency tests whether the complaint states a cause of action.¿ (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.)¿ When considering demurrers, courts read the allegations liberally and in context, accepting the alleged facts as true.¿ (Nolte v. Cedars-Sinai Medical Center (2015) 236 Cal.App.4th 1401, 1406.)¿ “Because a demurrer challenges defects on the face of the complaint, it can only refer to matters outside the pleading that are subject to judicial notice.”¿ (Arce ex rel. Arce v. Kaiser Found. Health Plan, Inc. (2010) 181 Cal.App.4th 471, 556.)¿

KKW demurs to the second and third causes of action in the Complaint. The court addresses each in turn.

The second cause of action is based on the following allegations. Bell was employed by KKW. On July 20, 2023, Bell was injured while working. Bell informed his supervisor Susan (last name unknown) of his injury and provided a doctor’s note for reasonable accommodations in the form of a medical leave of absence. Bell took the medical leave until November 21, 2023. During the leave period, Bell updated Susan regarding the status of his medical condition. On November 21, 2023, Bell notified Susan he was ready to return to work without restrictions via text but did not receive a response. On November 22, 2023, Bell contacted KKW’s safety department. The safety department received a letter from Bell’s doctor releasing Bell from medical care. Bell was instructed to await a call from his manager to obtain details about his return to work. (Complaint, ¶¶ 13-16.)

On December 4, 2023, Bell received a voicemail from his manager Will (last name unknown) regarding Bell’s return to work. Bell returned Will’s call on December 4 and 6, 2023 but did not receive a response. (Complaint, ¶¶ 17-18.)

On December 8, 2023, Plaintiff spoke with Will. During the conversation, Will informed Bell of company policy requiring employees to contact their employer within three days of being released from care. Will stated Plaintiff did not call or leave a voicemail in within three days of being release from care. Despite explaining to Will that he did reach out to Susan on the day of his release and that he did contact the safety department the following day, Will terminated Plaintiff’s employment. (Complaint, ¶¶ 19-20.)

KKW demurs to the failure to accommodate claim on the grounds Plaintiff was provided with the requested reasonable accommodation. The court agrees. “There are three elements to a failure to accommodate action: ‘(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.”¿ (CACI No. 2541; Hernandez v. Rancho Santiago Cmty. College Dist. (2018) 22 Cal.App.5th 1187, 1193-1194.)

Here, Plaintiff requested a medical leave of absence and KKW granted that request. (See Complaint, ¶ 13.) Plaintiff does not allege that he had a known disability, which needed to be accommodated, when he was ready to return to work. Indeed, Plaintiff informed Susan he was ready to return to work without restrictions. KKW was also separately informed by Plaintiff’s doctor that Plaintiff was being released from care. (See Complaint, ¶¶ 15-16.) The allegations make clear Plaintiff no longer had a disability when he informed KKW of his readiness to return to work on November 21, 2023. For this reason, Plaintiff’s argument that KKW, as the employer, had an affirmative duty to make reasonable accommodations for known physical disabilities does not pass muster. Under these facts, KKW is not liable for failing to accommodate Plaintiff when (1) he was given a medical leave of absence as a reasonable accommodation, and (2) at the conclusion of his leave, all the facts suggested Plaintiff no longer had a disability to reasonably accommodate.

The third cause of action is based on the same allegations described above. Plaintiff suffered an injury, requested an accommodation, received the accommodation in the form of medical leave, and KKW was later informed by Plaintiff and Plaintiff’s doctor he was being released from medical care and was ready to return to work. However, Plaintiff was terminated by his manager for purportedly failing to observe company policy requiring an employee to contact KKW within three days of being released from medical care. (Complaint, ¶¶ 13-20.)

KKW argues the third cause of action fails for the same reason as Plaintiff’s failure to accommodate claim: Plaintiff was provided the requested accommodation. The court agrees the third cause of action fails on the same grounds.

FEHA requires employers to engage in a good faith interactive process to determine effective reasonable accommodations, if any, “in response to a request for reasonable accommodation by an employee . . . with a known physical or mental disability . . . .”¿ (Gov. Code, § 12940, subd. (n); Raine v. City of Burbank (2006) 135 Cal.App.4th 1215, 1222.)¿ To establish a claim for failure to engage in the interactive process, a plaintiff must show: (1) defendant was an employer; (2) plaintiff was defendant’s employee; (3) plaintiff was disabled; (4) plaintiff requested reasonable accommodation; (5) plaintiff was willing to participate in a timely good faith interactive process with plaintiff to determine whether a reasonable accommodation could be made; (6) defendant failed to participate in this process; (7) plaintiff was harmed; and (8) defendant’s failure to engage in a good-faith interactive process was a substantial factor in causing plaintiff’s harm.¿ (CACI No. 2546.)¿¿¿

As discussed above, the Complaint makes clear Plaintiff was given medical leave as a reasonable accommodation, was later released from medical care, and was ready to return to work without work restrictions. In other words, Plaintiff no longer had a disability which required a reasonable accommodation. The third and fourth elements of this claim are not satisfied.

Plaintiff argues KKW failed to engage in a meaningful good faith interactive process both during Plaintiff’s medical leave of absence and after he was cleared to return to work. Further, despite being medically cleared, KKW refused to reinstate Plaintiff and effectively, and wrongfully, terminated his employment under the guise of an extended leave. The point being, KKW had an affirmative duty to inquire into the status of Plaintiff’s disability. However, Plaintiff’s very own allegations reveal the defects of the claim. Plaintiff fails to contend with the factual allegation that he was given the requested accommodation. Plaintiff then signaled to KKW he was ready to return to work without restriction on November 21, 2023. Plaintiff does not provide any authority to show “without restrictions” means anything other than an absence of disability. Nor does Plaintiff provide any authority that an employer is required to engage in a good faith interactive process where there is no evidence of a known disability.

The demurrer is Sustained. Given the allegations, leave to amendment would be futile. Leave to amend is DENIED.

Any party, within the time allowed to respond to a pleading, may serve and file a motion to strike the whole pleading or any part thereof.¿ (Code Civ. Proc., § 435, subd. (b)(1); Cal. Rules of Court, rule 3.1322, subd. (b).)¿ On a motion to strike, the court may: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court.¿ (Code Civ. Proc., § 436, subds. (a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782.)¿¿

“The grounds for a motion to strike are limited to matters appearing on the face of the challenged pleading or matters which must or may be judicially noticed. (§ 437, subd. (a); Evid. Code, §§ 451, 452.).” (Garcia v. Sterling (1985) 176 Cal.App.3d 17, 20.)¿

KKW seeks to strike punitive damages allegations from the Complaint. The allegations appear in support of each cause of action and in the prayer of the Complaint. Because the court has sustained the demurrer to the second and third causes of action, the motion to strike is moot as to those claims. The court proceeds to consider the motion to strike to the remaining allegations.

KKW argues the punitive damages allegations should be stricken because they are conclusory and unsupported by any specific allegations.

A motion to strike punitive damages is properly granted where a plaintiff does not state a prima facie claim for punitive damages, including allegations that defendant is guilty of oppression, fraud or malice. (Turman v. Turning Point of Cent. California, Inc. (2010) 191 Cal.App.4th 53, 63.) “Mere negligence, even gross negligence, is not sufficient to justify such an award” for punitive damages. (Kendall Yacht Corp. v. United California Bank (1975) 50 Cal.App.3d 949, 958.) The allegations supporting a request for punitive damages must be alleged with specificity; conclusory allegations without sufficient facts are not enough. (Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1041-1042.)

Plaintiff is informed and believes, and thereon alleges that the employees, officers, directors, and/or managing agents of Defendant acted with malice and oppression as their unlawful acts were carried out with full knowledge of the extreme risk of injury involved and with willful and conscious disregard for Plaintiff’s rights. They also acted fraudulently, as they willfully concealed the fact that Plaintiff’s employment rights were being violated, with the intent to deprive him of employment benefits. Accordingly, an award of punitive damages is warranted.

Plaintiff is informed and believes, and thereon alleges that the actions of Defendant’s employees, officers, directors, and/or managing agents were undertaken with the prior approval, consent, and authorization of Defendant and was subsequently authorized and ratified by them as well by and through its officers, directors, and/or managing agents.

(See Complaint, ¶¶ 31, 32, 65, 66, 77, 78, 89, 90, and Prayer for Relief.) The Complaint is factually deficient.

Plaintiff argues there are sufficient facts to raise a reasonable inference in support of punitive damages. Specifically, Plaintiff notified KKW of his disability and updated Susan of the status of his disability. Plaintiff’s termination occurred two weeks after stating he was ready to return to work. Based on these facts, Plaintiff contends it is reasonable to infer KKW acted with malice or conscious disregard by terminating him because of his disability and his right to medical leave and reinstatement.

Here, Plaintiff seeks punitive damages against a corporate employer. “An employer shall not be liable for damages pursuant to subdivision (a), based upon acts of an employee of the employer, unless the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice. With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation.”¿ (Civ. Code, § 3294, subd. (b).)¿¿¿¿On this point, the Complaint is deficient. There are no factual allegations to hold KKW, as a corporate employer, liable for punitive damages.

The motion to strike is GRANTED. Leave to amend is DENIED without prejudice. Plaintiff may seek leave to amend the complaint if additional facts are learned during discovery to support the request for punitive damages.

The motion to strike is Granted. Leave to amend is Denied Without Prejudice. Plaintiff may seek leave to amend the Complaint to add punitive damages requests if Plaintiff learns in discovery of facts supporting the request.

Kerry Bensinger

Judge of the Superior Court