Judge: Lee W. Tsao, Case: 21NWCV00720, Date: 2023-10-17 Tentative Ruling

Case Number: 21NWCV00720    Hearing Date: October 17, 2023    Dept: C

ESTATE OF GILBERT DOMINGUEZ, ET AL. v. ESTES EXPRESS LINES, INC.

CASE NO.:  21NWCV00720

HEARING:  10/17/23

 

#2

TENTATIVE ORDER

 

Defendant Estes Express Lines and G.I. Trucking Company dba Estes West’s demurrer to plaintiff’s second amended complaint is SUSTAINED with leave to amend in part and OVERRULED in part.

 

Moving Party to give NOTICE.

 

 

Defendant Estes Express Lines and G.I. Trucking Company dba Estes West (collectively, “Defendants”) demur to the 1st – 6th causes of action on the grounds that they do not state sufficient facts to constitute causes of action against them.

 

Plaintiffs allege that on December 4, 2017, Gilbert Dominguez (“Decedent”) was working at the La Mirada trucking terminal owned and operated by Defendant Estes Express Lines, Inc. and Estes Terminals when, without warning, a tractor driven by another employee began to reverse towards Decedent.  The tractor struck Decedent, causing life-threatening injuries and his eventual death.  Decedent was unaware of the reversing tractor because it was not equipped with a back-up safety alarm.  Plaintiffs allege that Estes Terminals had removed all back-up safety alarms from their tractors because neighbors had complained of the noise.  As a result, the tractors were rendered unreasonably hazardous and posed a foreseeable danger to all those working at the terminal.  After Decedent’s death on October 28, 2019, Plaintiffs learned that Decedent had been terminated from his employment based upon his inability to return from leave.  Plaintiffs were denied back pay, funeral costs and other employment benefits. 

 

Procedural History

 

On October 27, 2021, Estate of Gilbert Dominguez, Claudia Dominguez, Angelica Hernandez, and Gisell Escalera filed a lawsuit against Estes Express Lines, Inc., Tony Talley, Ashley Hening, Life Insurance Company of North America, Inc., Cigna, Inc., Cigna Health and Life Insurance Company, Inc., Cigna Holding Company, Inc., and Guardian Life Insurance Company Inc., and DOES 1 to 200, inclusive, for (1) wrongful discharge; (2) disability discrimination; (3) failure to prevent/remedy discrimination; (4) negligent supervision; (5) failure to accommodate; (6) failure to engage in the good faith interactive process; (7) declaratory relief; (8) breach of contract; (9) breach of implied covenant of good faith and fair dealing; and (10) intentional infliction of emotional distress.

 

On March 2, 2022, Estate of Gilbert Dominguez, Claudia Dominguez, Angelica Hernandez, and Gisell Escalera amended the complaint, substituting G.I. Trucking Company dba Estes West for DOE 1.

 

On September 7, 2022, Life Insurance Company of North America, Inc. removed the case to federal court based on federal question jurisdiction due to ERISA preemption of Plaintiffs’ state law claims for recovery of certain benefits provided under an employee benefit plan.

 

On October 21, 2022, Estate of Gilbert Dominguez, Claudia Dominguez, Angelica Hernandez, and Gisell Escalera filed a first amended complaint.

 

On January 26, 2023, the Estate of Gilbert Dominguez, Claudia Dominguez, Angelica Hernandez, and Gisell Escalera filed a second amended complaint. Plaintiffs Estate of Gilbert Dominguez, Claudia Dominguez, Angelica Hernandez, and Giselle Escalera sue (1) Estes Express Lines, Inc., (2) Tony Talley, (3) Ashley Hening, (4) Life Insurance Company of North America, Inc., (5) Cigna, Inc., (6) Cigna Health and Life Insurance Company, Inc., (7) Cigna Holding Company, Inc., (8) Guardian Life Insurance Company Inc., and DOES 1 to 200, inclusive, for

 

1.    Wrongful discharge

2.    Disability discrimination

3.    Failure to prevent/remedy discrimination

4.    Negligent supervision

5.    Failure to accommodate

6.    Failure to engage in the good faith interactive process.

 

On March 8, 2023, the federal court remanded the case.

 

On April 26, 2023, Estate of Gilbert Dominguez, Claudia Dominguez, Angelica Hernandez, and Gisell Escalera dismissed Claudia Dominguez individually.

 

Merits

 

Defendant Estes Express Lines and G.I. Trucking Company dba Estes West demur to the 1st – 6th causes of action on the grounds that they do not state sufficient facts to constitute causes of action against them.

 

Preliminarily, the parties met the meet-and-confer requirements. (Code. Civ. Pro. § 430.41.)

 

1.    Wrongful Discharge

 

Plaintiffs Estate of Gilbert Dominguez, Angelica Hernandez, and Gisell Escalera (collectively, “Plaintiffs”) sue defendants Este Express Lines, GI Trucking Company dba Estes West, Tony Talley, Ashley Hening, and DOES 1 through 200.

 

“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.”

(Garcia-Brower v. Premier Automotive Imports of CA, LLC (2020) 55 Cal.App.5th 961, 973.) The plaintiff must show that the public policy is embodied in a constitutional provision or statute. (Turner v Anheuser-Busch, Inc. (1994) 7 C4th 1238, 1256.)

 

Plaintiffs allege that the defendants’ effort to mischaracterize the nature of decedent Gilbert Dominguez’s disability and to create a false narrative that he was terminated without proper notice of warning based on failure to return to work amounts to wrongful discharge in violation of a fundamental principle of public policy, protecting disabled workers, and were a manifestation of the wrongful discriminatory animus against Gilbert Dominguez (“decedent”) and Plaintiffs based on his disabled status. (SAC ¶ 28.) Plaintiffs further allege that defendants were motivated in part by a wrongful discriminatory animus against decedent because of the severe disabilities he suffered on the job and sought to reduce operating costs and eliminate him as a potential whistleblower of the dangerous conditions then existing at Este Terminals by wrongfully terminating him, without notice and while he was recovering from major injury and disability. (SAC ¶29.) Plaintiffs also allege that they have suffered harm. (SAC ¶ 32.)

 

Defendants argue that because the SAC does not establish an underlying statutory violation, the wrongful termination claim fails. The Court agrees.

 

The demurrer is sustained as to this cause of action with leave to amend.

 

2.    Disability Discrimination

 

Plaintiffs sue defendants Este Express Lines, GI Trucking Company dba Estes West, Tony Talley, Ashley Hening, and DOES 1 through 200.

 

To establish a prima facie case of disability discrimination under FEHA,

a plaintiff must show the following elements: (1) plaintiff suffers from a

disability; (2) plaintiff is otherwise qualified to do the job with or without reasonable accommodation; and (3) plaintiff was subjected to an adverse employment action because of the disability. (Sandell v. Taylor-Listug, Inc. (2010) 188 Cal.App.4th 297, 310.)

 

Plaintiffs allege that the defendants sought to exploit decedent’s permanent disability and paralysis following being struck by a tractor to create the wrongfully discriminatory conditions of employment which would allow the false narrative to perpetuate and serve as a fraudulent basis to terminate decedent and force him and his family to incur costly payments. (SAC ¶ 44.)

 

Defendants argue that the SAC expressly states that following decedent’s December 4, 2017, workplace accident, “[he] could not physically return to work as a result of his life-altering, life changing injuries and remained paralyzed and unable to work up through his death on October 28, 2019.” (SAC 6). Defendants further argue that because there is no dispute Mr. Dominguez “remained paralyzed and unable to work” from the date of his accident on December 4, 2017, through the date of his death on October 28, 2019, he cannot establish that he was “otherwise qualified” to do his job. The Court agrees.

 

The demurrer is sustained as to this cause of action with leave to amend.

 

3.    Failure to Prevent/Remedy Discrimination

 

Plaintiffs sue defendants Este Express Lines, GI Trucking Company dba Estes West, Tony Talley, Ashley Hening, and DOES 1 through 200.

 

The elements of failure to prevent or remedy discrimination are (1) actionable discrimination or harassment by employees or non-employees; (2) defendant's legal duty of care toward plaintiff (defendant is plaintiff’s employer); (3) breach of duty (failure to take all reasonable steps necessary to prevent discrimination and harassment from occurring); (4) legal causation; and (5) damages to plaintiff. (Trujillo v. No. County Transit Dist. (1998) 63 Cal.App.4th 280, 287, 289.)

 

Plaintiff alleges that beginning after decedent’s accident on December 4, 2017 and through the present, defendants engaged in a concerted pattern of wrongful harassing, discriminatory, and retaliatory actions, including wrongful termination and discharge of decedent and lost wages, back pay, salary, and the potential for advancement, funeral costs, and additional amounts of money properly due decedent and plaintiffs Claudia Dominguez and Estate of Gilbert Dominguez. (SAC ¶ 57.) Plaintiff alleges that defendants failed to take all reasonable steps to prevent or remedy discriminatory behavior by its agents and employees, and this failure to take all reasonable steps to prevent or remedy this discriminatory behavior by its agents and employees was a substantial factor in causing Plaintiffs’ harm. (SAC 58.)

 

Defendants argue that the SAC alleges decedent never knew of any purported discrimination, harassment, retaliation, or any other purported misconduct on the part of Defendants because he was never informed of his termination or any denial of benefits. Moreover, decedent was not subjected to discrimination because the SAC expressly concedes that he could never “return to work” and remained “unable to work” from the date of his accident until his death. Given that decedent experienced no discrimination, his failure to prevent discrimination claim necessarily fails as a matter of law.

 

Defendants cite no authority, and none exists to support that a plaintiff needs to know of any purported discrimination, harassment, retaliation, or other purported misconduct to prevail on this cause of action.

 

The Court overrules the demurrer as to this cause of action.

 

4.    Negligent Supervision

 

Plaintiffs sue Estes Express Lines and GI Trucking Company dba Estes West and DOES 1 through 200.

 

The elements of negligent supervision are (1) employer's supervising an employee; (2) who is incompetent or unfit; (3) employer had reason to believe undue risk of harm would exist because of the employment; and (4) the harm occurs. (Federico v. Superior Court (1997) 59 Cal.App.4th 1207, 1213-14.)

 

Plaintiff alleges that Defendants Estes Express Lines and/or GI Trucking Company DBA Estes West were responsible for hiring, supervising, and retaining defendants Tony Talley and Ashley Hening. (SAC ¶ 67.) Plaintiff further alleges that Talley and Hening targeted decedent and plaintiffs for wrongful discrimination, harassment, and retaliation, discharge, and wrongful refusal to pay lost wages, back pay, salary, funeral costs, and additional amounts of money, and impeded decedent’s potential for advancement, proving defendants Talley and Hening to be unfit employees. (SAC ¶ 68.) Plaintiff also alleges that Defendants knew or should have known that Talley and Hening were unfit and would use their positions to discriminate, harass, and retaliate against employees such as decedent. (SAC ¶ 69.) As a proximate result of Defendants’ failure to exercise reasonable care in hiring, supervising, and retaining Talley and Hening, decedent and Plaintiffs were harmed. (Ibid.)

 

Defendants argue that because they did not engage in disability discrimination and did not wrongfully discharge Mr. Dominguez in violation of public policy (FEHA), Defendants could not have negligently permitted their employees, Hening and Talley, from engaging in conduct that never occurred. Defendants further argue that with respect to harassment and retaliation claims, the SAC contains no claims for harassment or retaliation, contains no allegations that Talley or Hening engaged in any form of harassment or retaliation, and contains no allegations that Mr. Dominguez engaged in any form of protected conduct to establish a retaliation claim.

 

Besides alleging that Talley and Hening discriminated, harassed, retaliated, and discharged the decedent, Plaintiffs also allege that Talley and Hening are unfit because of their “wrongful refusal to pay lost wages, back pay, salary, funeral costs, and additional amounts of money” and because they impeded decedent’s potential for advancement. Defendants do not address these allegations. Further, a complaint is adequate so long as it apprises the defendant of the factual basis for the claim. (Prue v. Brady Co./San Diego, Inc. (2015) 242 Cal.App.4th 1367, 1376.) Based on the allegations, the Court finds that defendants are apprised of the factual basis of Plaintiff’s harassment and retaliation claims.

 

Thus, the Court overrules the demurrer as to this cause of action.

 

5.    Failure to Accommodate

 

Plaintiffs sue Estes Express Lines, GI Trucking Company DBA Estes West, and DOES 1 through 200.

 

To establish a “failure to accommodate” claim, plaintiff must show (1) plaintiff has a disability covered by the FEHA; and (2) defendant has failed reasonably to accommodate plaintiff's disability. (Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 256.)

 

Plaintiffs allege that following the December 4, 2017, incident, decedent was placed on disability for the industrial injuries sustained, including low body paralysis, after being run over by the tractor at Estes Terminal. (SAC 78.) Plaintiffs also allege that despite being put on notice that decedent was not cleared to return to work, Defendants created a false narrative to terminate decedent and deny Plaintiffs properly accrued lost wages, back pay, and salary, and impeded decedent’s potential for advancement by claiming that decedent failed to properly return to work. (SAC 79.) Plaintiffs further allege that defendants ignored decedent’s disability and refused to accommodate that disability by insisting that decedent did not timely return to work and terminated decedent without any notice to either him or his family. (SAC 80.)

 

Defendants argue that the SAC states that decedent “remained paralyzed and unable to work” from the date of his accident through the date of his death, and that Estes Express Lines, Inc. terminated decedent when he was unable to return to work following a period of leave. Defendants further argue that because Plaintiff concedes that decedent “remained paralyzed and unable to work” through the date of his death, and therefore could not perform the essential functions of his job with or without an accommodation, the failure to accommodate claim fails as a matter of law.

 

Courts are divided on whether a plaintiff must show his, her, or their ability to perform the job as part of plaintiff's prima facie “failure to accommodate” claim. Some cases hold that Plaintiff's inability to perform the position with reasonable accommodation is an affirmative defense for the employer to raise and prove. (Bagatti v. Department of Rehabilitation (2002) 97 Cal.App.4th 344, 361.)

Other cases hold plaintiff must show ability to perform, with accommodation, the essential functions of the position to which reassignment is sought (rather than the essential functions of the original position). (Nadaf-Rahrov v. Neiman Marcus Group, Inc. (2008) 166 Cal.App.4th 952, 977.) This Court adopts the former view.

 

Based on this, the Court overrules the demurrer as to this cause of action.

 

6.    Failure to Engage in Good Faith Interactive Process

 

Plaintiffs sue Estes Express Lines, GI Trucking Company DBA Estes West, and DOES 1 through 200.

 

The employer must engage in a "timely, good faith, interactive process" to determine effective reasonable accommodations with an individual who has a known disability or medical condition and requests accommodation, although liability exists only if reasonable accommodation is in fact possible. (Gov. Code, §12940(n); 2 Cal Code Regs §11069(a); Nadaf-Rahrov v. Neiman Marcus Group, Inc. (2008) 166 Cal.App.4th 952, 982.) Unless a disability is obvious, it is the employee's burden to initiate the process, usually by requesting accommodation, and no particular "magic words" are required. (2 Cal Code Regs §11069(b)(1); Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34, 62 n22.)

 

Plaintiffs allege that following the December 4, 2017, incident, decedent was placed on disability for the industrial injuries sustained after being run over by the tractor at Estes Terminal, including low body paralysis. (SAC 91.) Plaintiffs also allege that despite being put on notice that decedent was not cleared to return to work, Defendants created a false narrative to terminate decedent and deny Plaintiffs properly accrued lost wages, back pay, and salary, and impeded decedent’s potential for advancement by claiming that decedent failed to properly return to work. (SAC 92.) Plaintiffs further allege that defendants ignored decedent’s disability and refused to accommodate that disability by insisting that decedent did not timely return to work and terminated decedent without any notice to either him or his family. (SAC 93.)

 

Defendants argue that the SAC states that decedent “remained paralyzed and unable to work” from the date of his accident through the date of his death, and that Estes terminated decedent when he was unable to return to work following a period of leave. Defendants further argue that because Plaintiff concedes that decedent “remained paralyzed and unable to work” through the date of his death, and therefore could not perform the essential functions of his job with or without an accommodation, the failure to engage in the good faith interactive process claim fails as a matter of law.

 

Defendants cite no authority, and none exist that because an employee cannot perform the essential functions of his job with or without an accommodation, the failure to engage in the good faith interactive process claim fails.

 

The Court overrules the demurrer as to this cause of action.

 

7.    Damages

 

Defendants also argue about the types of damages that Plaintiff can seek, but that is not the subject of a demurrer. A general demurrer challenges only the sufficiency of the cause of action pleaded and must be overruled if any valid cause of action is pleaded; a demand for improper relief does not vitiate an otherwise valid cause of action. (Caliber Bodyworks, Inc. v. Superior Ct. (2005) 134 Cal.App.4th 365, 385.)  Thus, the Court will not rule on this issue.