Judge Lee W. Tsao, Case Number: 23NWCV02447, Date: 2024-03-27 Tentative Ruling

Judge: Lee W. Tsao, Case: 23NWCV02447, Date: 2024-03-27 Tentative Ruling

Case Number: 23NWCV02447 Hearing Date: March 27, 2024 Dept: C

JONATHAN AGUILAR v. ETHOS ENERGY GROUP, LTD.

CASE NO.: 23NWCV02447

HEARING: 3/27/24 @ 9:30 A.M.

TENTATIVE ORDER

Defendant EthosEnergy Field Services, LLC’s demurrer to plaintiff’s first amended complaint is OVERRULED. The motion to strike is GRANTED IN PART and DENIED IN PART.

Moving Party to give NOTICE.

Background

This is an employment law action. On January 30, 2024, Plaintiff Jonathan Aguilar filed a first amended complaint alleging the following:

1. FEHA Discrimination

2. FEHA Retaliation

3. Failure to Provide Reasonable Accommodation

4. Failure to Engage in Interactive Process

5. Failure to Prevent Discrimination, Harassment, or Retaliation

6. Wrongful Termination in Violation of Public Policy

7. Constructive Termination.

Meet and Confer

The parties satisfied the meet-and-confer requirements. (Decl. Miller, ¶¶ 2 to 4; Code. Civ. Proc., § 430.41; Code Civ. Proc., § 435.5, subd. (a).)

Demurrer

Defendant EthosEnergy Field Services, LLC demurs to the first to seventh causes of action on the grounds that they do not state sufficient facts to constitute causes of action.

Disability Discrimination

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

a plaintiff must show the following: (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.)

Defendant demurs on the grounds that the first amended complaint does not state whether Plaintiff had a qualifying disability, what kind of disability Plaintiff had, whether Plaintiff made an accommodation request, when it was made, to whom it was made, whether the requested accommodation was granted or denied, how and when Defendant allegedly denied his requested accommodation, how and when Plaintiff applied for workers’ compensation, and what happened to his application. However, as stated above, except for Defendant’s assertion about “qualifying disability,” that is not the law. Whether Plaintiff adequately pleaded “qualifying disability” is discussed further below.

The FEHA prohibits discrimination against individuals who have a “physical disability, mental disability or medical condition.” (Gov. Code, § 12920.) The legislature intends “mental disability” and “physical disability” to be construed broadly so that employees are protected from discrimination due to actual or perceived physical impairment that is disabling, potentially disabling, or perceived as disabling or potentially disabling. (Gov. Code, § 12926.1, subd. (b).) “Physical disability” includes any physiological disease, disorder, condition, cosmetic disfigurement, or anatomical loss that limits a major life activity. (Gov. Code, § 12926, subd. (m)(1)(B).) “Mental disability” includes any mental or psychological disorder or condition that limits a life activity. (Gov. Code, § 12926, subd. (j)(1).) “Major life activity” includes working. (Gov. Code, §§ 12926, subd. (j)(1)(C), (m)(1)(B)(iii).) “Medical condition” means any health impairment related to or associated with a diagnosis of cancer or a record or history of cancer or genetic characteristics. (Gov. Code, § 12926, subd. (i).)

Here, Plaintiff pleads the following: “During his employment, Plaintiff Jonathan Aguilar suffered from work related injuries which required him to miss work and receive treatment.” (FAC ¶ 10.) The Court infers that Plaintiff suffered a physical or mental disability. The complaint must be construed liberally by drawing reasonable inferences from the facts pleaded. (Flynn v. Higham (1983) 149 Cal.App.3d 677, 679.)

In addition, Plaintiff pleaded that his purported disability limited the life activity of working. (FAC ¶ 10.)

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

FEHA Retaliation

To establish a prima facie case of retaliation under the FEHA, a

plaintiff must show the following: (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.

(Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.)

Defendant demurs on the grounds that the first amended complaint does not state whether Plaintiff had a qualifying disability, what kind of disability Plaintiff had, whether Plaintiff made an accommodation request, when it was made, to whom it was made, whether the requested accommodation was granted or denied, how and when Defendant allegedly denied his requested accommodation, how and when Plaintiff applied for workers’ compensation, and what happened to his application. However, as discussed above, that is not the law. Plaintiff does not need to plead he had a qualifying disability, what kind of disability Plaintiff had, whether Plaintiff made an accommodation request, when it was made, to whom it was made, whether the requested accommodation was granted or denied, how and when Defendant allegedly denied his requested accommodation, how and when Plaintiff applied for workers’ compensation, and what happened to his application.

The demurrer is overruled as to this cause of action.

Failure to Provide Reasonable Accommodation

The elements of a reasonable accommodation cause of action are the following: (1) the employee suffered a disability, (2) the employee could perform the essential functions of the job with reasonable accommodation, and (3) the employer failed to reasonably accommodate the employee's disability. (Nealy v. City of Santa Monica (2015) 234 Cal.App.4th 359, 373.) A reasonable accommodation is a modification of or adjustment to the workplace that enables the employee to do the essential functions of the job. (Ibid.) “Essential functions” means the fundamental job duties of the employment position the individual with a disability holds or desires. (Gov. Code, § 12926, subd. (f).)

In addition, Plaintiff pleaded that his purported disability limited the life activity of working. (FAC ¶ 10.)

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

Failure to Engage in Good Faith Interactive Process

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, subd. (n); 2 Cal. Code Regs §11069, subd. (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, subd. (b)(1); Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34, 62 n22.)

Defendant demurs on the grounds that the first amended complaint does not state whether Plaintiff had a qualifying disability, what kind of disability Plaintiff had, whether Plaintiff made an accommodation request, when it was made, to whom it was made, whether the requested accommodation was granted or denied, how and when Defendant allegedly denied his requested accommodation, how and when Plaintiff applied for workers’ compensation, and what happened to his application. However, as stated above, that is not the law. Plaintiff does not need to plead he had a qualifying disability, what kind of disability Plaintiff had, whether Plaintiff made an accommodation request, when it was made, to whom it was made, whether the requested accommodation was granted or denied, how and when Defendant allegedly denied his requested accommodation, how and when Plaintiff applied for workers’ compensation, and what happened to his application.

The demurrer is overruled as to this cause of action.

Failure to Prevent/Remedy Discrimination

The elements of failure to prevent or remedy discrimination are the following: (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.)

Defendant demurs on the grounds that the first amended complaint does not state whether Plaintiff had a qualifying disability, what kind of disability Plaintiff had, whether Plaintiff made an accommodation request, when it was made, to whom it was made, whether the requested accommodation was granted or denied, how and when Defendant allegedly denied his requested accommodation, how and when Plaintiff applied for workers’ compensation, and what happened to his application. However, as stated above, that is not the law. Plaintiff does not need to plead he had a qualifying disability, what kind of disability Plaintiff had, whether Plaintiff made an accommodation request, when it was made, to whom it was made, whether the requested accommodation was granted or denied, how and when Defendant allegedly denied his requested accommodation, how and when Plaintiff applied for workers’ compensation, and what happened to his application.

The demurrer is overruled as to this cause of action.

Wrongful Termination

Defendant demurs to the wrongful termination cause of action on the grounds that the statute of limitations bars it. Where the dates alleged in the complaint show the cause of action is barred by the statute of limitations, a general demurrer lies. (Saltier v. Pierce Bros. Mortuaries (1978) 81 Cal.App.3d 292, 300.)

A claim for wrongful termination in violation of public policy is subject to the two-year personal injury statute of limitations. (Code Civ. Proc., § 335.1; Barton v. New United Motor Mfg., Inc. (1996) 43 Cal.App.4th 1200, 1206.) It accrues upon an actionable adverse action. (Romano v. Rockwell Int’l, Inc. (1996) 14 Cal.4th 479, 501-502.)

Here, Plaintiff alleges that Defendant terminated him in October 2020. (FAC ¶ 9.) Plaintiff filed this lawsuit on August 3, 2023. Thus, the statute of limitations passed when he filed his lawsuit.

Plaintiff argues that the doctrine of equitable tolling applies. The three core elements of equitable tolling are the following: (1) timely notice to the defendant in filing the first claim; (2) lack of prejudice to defendant in gathering evidence to defend against the second claim; and (3) good faith and reasonable conduct by the plaintiff in filing the second claim. (Collier v. City of Pasadena (1983) 142 Cal.App.3d 917, 924.)

The timely notice requirement means that the first claim must have been filed within the statutory period. (Collier v. City of Pasadena, supra, 142 Cal.App.3d 917 at pg. 924.) A claimant must first exhaust administrative remedies by filing a complaint with the Civil Rights Department (formerly known as the Department of Fair Employment and Housing) within three years from the date of the “unlawful action” or “refusal to cooperate.” (Gov. Code, § 12960, subd. (e)(5).) Plaintiff alleges that he exhausted his administrative remedies by timely filing an administrative complaint with the Department of Fair Employment and Housing and that on October 7, 2022, he received a right-to-sue letter. (FAC ¶ 20.) Thus, Plaintiff filed the first claim within the statutory period.

The second requirement means that the facts of the two claims be identical or at least so similar that the defendant’s investigation of the first claim will put him in a position to fairly defend the second. (Collier v. City of Pasadena, supra, 142 Cal.App.3d 917 at pg. 925.) Plaintiff alleges, “Defendants terminated plaintiff’s employment in violation of various fundamental policies underlying both state and federal laws. Specifically, plaintiff’s employment was terminated in part because of his protected status (i.e., race, ancestry, employee’s disability (history of, actual and/or perceived) and medical condition, and/or protected activity.) These actions were in violation of, but not limited to, the FEHA, the California Constitution, Government Code 12900, et seq., and California Labor Code section 1102.5.” (FAC ¶ 63.) Based on the reference to the state laws and Plaintiff’s protected status in the first amended complaint, the two claims are similar. Thus, defendant’s investigation of the FEHA claims has put it in a position to fairly defend the wrongful termination claim.

Plaintiff filed this civil lawsuit a short time after tolling ended. The time to file a civil lawsuit is tolled during pendency of administrative remedies. (Olson v. County of Sacramento (1974) 38 Cal.App.3d 958, 965.) The tolling ended on October 7, 2022, and Plaintiff filed the civil lawsuit on August 3, 2023. Based on this, there is good faith and reasonable conduct. (Collier v. City of Pasadena, supra, 142 Cal.App.3d 917 at pg. 926.)

Thus, the doctrine of equitable tolling applies. The effect of equitable tolling is that the limitations period stops running during the tolling event and begins to run again only when the tolling event has concluded. (Lantzy v. Centex Homes (2003) 31 Cal.4th 363, 370.) The tolled interval is tacked onto the end of the limitations period, thus extending the deadline for suit by the length of time during which the tolling event occurred. (Id. at 370-371.)

The toll period ended on October 7, 2022, and Plaintiff filed the civil lawsuit on August 3, 2023. However, from the face of the complaint, it is unknown when the tolling period began. Thus, the running of the statute of limitations does not appear “clearly and affirmatively” from the face of the complaint. (Com. for Green Foothills v. Santa Clara County Bd. of Supervisors (2010) 48 Cal. 4th 32, 42.)

The demurrer is overruled as to this cause of action.

Constructive Discharge

Defendant demurs to the constructive discharge cause of action on the grounds that the statute of limitations bars it.

A claim for constructive discharge is also subject to the two-year personal injury statute of limitations. (Code Civ. Proc., § 335.1; Barton v. New United Motor Mfg., Inc., supra, 43 Cal.App.4th 1200 at pg. 1206.) It accrues upon an actionable adverse action. (Romano v. Rockwell Int’l, Inc., supra, 14 Cal.4th 479 at pgs. 501-502.)

Here, Plaintiff alleges that Defendant terminated him in October 2020. (FAC ¶ 9.) Plaintiff filed this lawsuit on August 3, 2023. Thus, the statute of limitations has passed.

Plaintiff argues that the doctrine of equitable tolling applies. As discussed above, the three core elements of equitable tolling are the following: (1) timely notice to the defendant in filing the first claim; (2) lack of prejudice to defendant in gathering evidence to defend against the second claim; and (3) good faith and reasonable conduct by the plaintiff in filing the second claim. (Collier v. City of Pasadena, supra, 142 Cal.App.3d 917 at pg. 924.)

As discussed above, Plaintiff provided timely notice to the defendant in filing the first claim.

As discussed above, the second requirement means that the facts of the two claims be identical or at least so similar that the defendant’s investigation of the first claim will put him in a position to fairly defend the second. (Collier v. City of Pasadena, supra, 142 Cal.App.3d 917 at pg. 925.) Here, Plaintiff alleges, “Specifically, plaintiff’s employment was terminated in part because of his protected status (i.e., race, ancestry, employee’s disability (history of, actual and/or perceived) and medical condition, and/or protected activity.) These actions were in violation of, but not limited to, the FEHA, the California Constitution, Government Code 12900, et seq., and California Labor Code section 1102.5.” (FAC ¶ 69.) Based on the reference to the state laws and Plaintiff’s protected status in the first amended complaint, the two claims are similar. Thus, defendant’s investigation of the FEHA claims has put it in a position to fairly defend the wrongful termination claim.

As discussed above, Plaintiff filed this civil lawsuit a short time after tolling ended. Based on this, there is good faith and reasonable conduct. (Collier v. City of Pasadena, supra, 142 Cal.App.3d 917 at pg. 926.)

Thus, the doctrine of equitable tolling applies. The effect of equitable tolling is that the limitations period stops running during the tolling event and begins to run again only when the tolling event has concluded. (Lantzy v. Centex Homes, supra, 31 Cal.4th 363 at pg. 370.) The tolled interval is tacked onto the end of the limitations period, thus extending the deadline for suit by the length of time during which the tolling event occurred. (Id. at 370-371.)

The demurrer is overruled as to this cause of action.

Motion to Strike

Defendant moves to strike punitive damages allegations and attorney fees allegations.

Punitive Damages

To state a prima facie claim for punitive damages, a complaint must set forth the elements as stated in the general punitive damage statute, Civil Code section 3294. (College Hospital, Inc. v. Super. Ct. (1994) 8 Cal.4th 704, 721.) These statutory elements include allegations that the defendant has been guilty of oppression, fraud, or malice. (Civ. Code, § 3294, subd. (a).)

“‘Malice’” is defined in the statute as conduct “intended by the defendant to cause injury to plaintiff, or despicable conduct that is carried on by the defendant with a willful and conscious disregard for the rights or safety of others.” (Civ. Code, § 3294, subd. (c)(1); College Hospital, Inc. v. Super. Ct., supra, 8 Cal.4th 704 at p. 725.) “‘Oppression’ means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.” (Civ. Code, § 3294 subd. (c)(2).) “‘Fraud’” is “an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.” (Civ. Code, § 3294, subd. (c)(3).)

Conclusory allegations, devoid of any factual assertions, are insufficient to support a conclusion that parties acted with oppression, fraud, or malice. (Smith v. Super. Ct. (1992) 10 Cal.App.4th 1033, 1042.)

Plaintiff asserts that defendant tried to hide the illegal reason for taking adverse employment action against him and based on case law, these actions constitute punitive damages. However, the case law that Plaintiff cites made findings of punitive damages based on more specific factual assertions. (Cloud v. Casey (1990) 76 Cal.App.4th 895, 911-912; Stephens v. Coldwell Banker Commercial Group, Inc. (1988) 199 Cal.App.3d 1394, 1403-1404.) In contrast, Plaintiff’s allegations are conclusory and do not satisfy the higher pleading requirement for punitive damages. (FAC, ¶¶ 10a, 11a, 12a.)

Thus, the Court GRANTS the motion to strike portions of the first amended complaint about punitive damages.

Attorney Fees

An award of attorney’s fees is proper when authorized by contract, statute, or law. (Code Civ. Proc., §§ 1032, subd. (b), 1033.5, subd. (a)(10).)

Here, Plaintiff requests attorney’s fees for the sixth and seventh causes of action of wrongful termination and constructive discharge. The basis for these causes of action is Labor Code section 1102.5, subdivision (b). A court may award reasonable attorney fees to an employee who brings a successful action for Labor Code section 1102.5.

Thus, Defendant’s request to strike attorney fees is DENIED.