Judge: Lynette Gridiron Winston, Case: 24PSCV00194, Date: 2024-09-05 Tentative Ruling
Case Number: 24PSCV00194 Hearing Date: September 5, 2024 Dept: 6
CASE
NAME: Edgar
Carrillo v. Online Cargo Express, et al.
Defendants’ Demurrer to Plaintiff’s Complaint
TENTATIVE
RULING
The Court SUSTAINS the demurrer to the Sixth, Seventh, and Seventeenth Causes of Action without leave to amend. The Court SUSTAINS the demurrer to the Ninth and Eleventh Causes of action with 20 days’ leave to amend. The Court OVERRULES the demurrer to the Eighth, Tenth, Twelfth, Thirteenth, Fourteenth, and Fifteenth Causes of Action.
Defendants are ordered to give notice of the Court’s ruling within five calendar days of this order.
BACKGROUND
This is an employment action. On January 17, 2024, plaintiff Edgar Carrillo (Plaintiff) filed this action against defendants Online Cargo Express, Steve Jung (Jung) (collectively, Defendants), and Does 1 through 20, alleging causes of action for failure to pay wages, failure to provide overtime compensation, failure to provide rest breaks, failure to provide meal breaks, waiting time penalties, failure to provide accurate itemized wage statements, failure to produce employee file, disability discrimination, race discrimination, work environment harassment, retaliation, failure to prevent harassment, discrimination and retaliation, retaliation (second count), failure to provide reasonable accommodation, failure to engage in good faith interactive process, unfair and unlawful business practices, and wrongful constructive termination in violation of public policy.
On July 29, 2024, Defendants demurred to the complaint. On August 28, 2024, Plaintiff opposed the motion. On August 29, 2024, Defendants replied.
LEGAL
STANDARD
A demurrer is a pleading used to test the legal sufficiency of other pleadings. It raises issues of law, not fact, regarding the form or content of the opposing party's pleading (complaint, answer or cross-complaint). (Code Civ. Proc., § 422.10; see Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) It is not the function of the demurrer to challenge the truthfulness of the complaint; and for purposes of ruling on the demurrer, all facts pleaded in the complaint are assumed to be true. (Id.)
A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian, supra, 116 Cal.App.4th at p. 994.) No other extrinsic evidence can be considered. (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881 [error for court to consider facts asserted in memorandum supporting demurrer]; see also Afuso v. United States Fid. & Guar. Co. (1985) 169 Cal.App.3d 859, 862, disapproved on other grounds in Moradi-Shalal v. Fireman’s Fund Ins. Cos. (1988) 46 Cal.3d 287 [error to consider contents of release not part of court record].)
A demurrer can be utilized where the “face of the complaint” itself is incomplete or discloses some defense that would bar recovery. (Guardian North Bay, Inc. v. Superior Court (2001) 94 Cal.App.4th 963, 971-972.) The “face of the complaint” includes material contained in attached exhibits that are incorporated by reference into the complaint, or in a superseded complaint in the same action. (Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94; see also Barnett v. Fireman’s Fund Ins. Co. (2001) 90 Cal.App.4th 500, 505 [“[W]e rely on and accept as true the contents of the exhibits and treat as surplusage the pleader’s allegations as to the legal effect of the exhibits.”])
A demurrer can only be sustained when it disposes of an entire cause of action. (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119; Kong v. City of Hawaiian Gardens Redev. Agency (2003) 108 Cal.App.4th 1028, 1046.)
PRELIMINARY ISSUE
The Court notes that the deadline for Plaintiff’s opposition was August 22, 2024. (Code Civ. Proc., § 1005, subd. (b).) The Court exercises its discretion to still consider the opposition, but admonishes Plaintiff to comply with the requirements of the Code of Civil Procedure going forward. (See Cal. Rules of Court, rule 3.1300, subd. (d); Juarez v. Wash Depot Holdings, Inc. (2018) 24 Cal.App.5th 1197, 1202.)
DISCUSSION
Meet and Confer
Per Code of Civil Procedure section 430.41, subdivision (a), Defendants
were required to meet and confer in
person, by telephone, or by video conference before bringing this demurrer.
(Code Civ. Proc., § 430.41, subd. (a).) The Court finds Defendants’
meet-and-confer efforts insufficient, as there is no indication of having
attempted to meet and confer in person, by telephone, or by video conference.
(Hsu Decl., ¶ 2, Ex. A.) Nevertheless, the Court may not overrule a demurrer
for failure to adequately meet and confer. (Code Civ. Proc., § 430.41, subd.
(a)(4).) The Court therefore will still consider the demurrer, but admonishes
Defendants to comply with the requirements of the Code of Civil Procedure going
forward.
Sixth Cause of Action – Failure to Provide Accurate Itemized Wage Statements
To state a cause of action for failure to provide accurate itemized wage statements, the plaintiff must allege facts demonstrating that the defendant employer failed to comply with the requirements for wage statements set forth in Labor Code section 226, subdivision (a). (Lab. Code, § 226, subd. (a).) “An employee suffering injury as a result of a knowing and intentional failure by an employer to comply with subdivision (a) is entitled to recover the greater of all actual damages or fifty dollars ($50) for the initial pay period in which a violation occurs and one hundred dollars ($100) per employee for each violation in a subsequent pay period, not to exceed an aggregate penalty of four thousand dollars ($4,000), and is entitled to an award of costs and reasonable attorney's fees.” (Id., subd. (e)(1).)
Labor Code section 226 provides for a penalty against employers who fail to provide itemized Labor Code compliant wage statements. (Murphy v. Kenneth Cole Productions, Inc. (2007) 40 Cal.4th 1094, 1108-1109.) Code of Civil Procedure section 340, subdivision (a) provides a one-year statute of limitations for an “action upon a statute for a penalty.” (Code Civ. Proc., § 340, subd. (a).) “While a demurrer based on statute of limitations lies where the dates in question are shown on the face of the complaint, if those dates are missing, there is no ground for a general demurrer. [Citation.]” (United W. Med. Centers v. Superior Ct. (1996) 42 Cal.App.4th 500, 505.)
Defendants demur to the Sixth Cause of Action for failure to provide accurate itemized wage statements in violation of Labor Code section 226, on the grounds that it is time-barred and therefore fails to state a cause of action. Defendants note that the complaint alleges Plaintiff resigned in January 2021, but he did not file this action until January 17, 2024, which exceeds the one-year statute of limitations for this cause of action.
In opposition, Plaintiff contends this cause of action is not time-barred. Plaintiff contends Labor Code sect 226 provides for further relief beyond a penalty or forfeiture, and argues that Code of Civil Procedure section 340, subdivision (a), is a catch-all statute of limitations for violations of statutes seeking damages and injunctive relief. Plaintiff contends this claim is brought for damages, and therefore falls under the three-year statute of limitations for statutory violations.
The Court agrees with Defendants. The complaint alleges Plaintiff resigned in January 2021. (Compl., ¶ 29.) Plaintiff did not file this action until January 17, 2024, which is more than one year after Plaintiff resigned, and therefore well after the alleged injuries occurred. (See Code Civ. Proc., § 340, subd. (a); Blackwell v. SkyWest Airlines, Inc. (S.D. Cal. 2007) 245 F.R.D. 453, 463 [penalties based on wage statement violations under Labor Code § 226, subdivision (a), subject to one-year statute of limitations under California law].)
Further, Plaintiff seeks statutory penalties in the complaint. (Compl., ¶ 82.) Plaintiff does not seek injunctive relief with respect to this cause of action, nor does it allege facts demonstrating how Defendants’ actions allegedly damaged Plaintiff. (See Compl., ¶¶ 76-82.) This means the one-year statute of limitations under Code of Civil Procedure section 340, subdivision (a), applies here. (Compl., ¶ 82; Blackwell v. SkyWest Airlines, Inc., supra, 245 F.R.D. at p. 463.) The Court also notes that Plaintiff’s opposition does not provide an offer of proof showing how amendment could resolve this pleading defect.
Based on the foregoing, the Court SUSTAINS the demurrer to the Sixth Cause of Action without leave to amend.
Seventh Cause of Action – Failure to Produce Employee File
To state a cause of action for failure to produce employee personnel file, the plaintiff must allege facts demonstrating that the employer failed to produce the employee’s personnel records following a written request within the timeframe allotted under Labor Code section 1198.5, subdivision (b)(1). (Lab. Code, § 1198.5, subd. (b)(1).) “If an employer fails to permit a current or former employee, or his or her representative, to inspect or copy personnel records within the times specified in this section, or times agreed to by mutual agreement as provided in this section, the current or former employee or the Labor Commissioner may recover a penalty of seven hundred fifty dollars ($750) from the employer.” (Lab. Code, § 1198.5, subd. (k).)
Defendants demur to the Seventh Cause of Action for failure to produce employee file in violation of Labor Code section 1198.5, on the grounds that it is time-barred and therefore fails to state a cause of action. Defendants’ arguments here are the same as with respect to the Sixth Cause of Action discussed above, namely that Plaintiff filed this action three years after resigning, which exceeds the one-year statute of limitations for this cause of action under Code of Civil Procedure section 340.
In opposition, Plaintiff concedes that this cause of action is time-barred.
For the same reasons set forth above, plus Plaintiff’s concession that this cause of action is time-barred, (Opp., 2:6-8), the Court SUSTAINS the demurrer to the Seventh Cause of Action without leave to amend.
Seventeenth Cause of Action – Wrongful Constructive Termination in Violation of Public Policy
“Constructive discharge occurs when the employer's conduct effectively forces an employee to resign. Although the employee may say, ‘I quit,’ the employment relationship is actually severed involuntarily by the employer's acts, against the employee's will. As a result, a constructive discharge is legally regarded as a firing rather than a resignation.” (Turner v. Anheuser-Busch, Inc. (1994) 7 Cal. 4th 1238, 1244-1245.) Wrongful termination claims are subject to the two-year statute of limitations under Code of Civil Procedure section 335.1. (Prue v. Brady Co./San Diego (2015) 242 Cal.App.4th 1367, 1382 (Prue).)
Defendants demur to the Seventeenth Cause of Action for wrongful constructive termination in violation of public policy on the grounds that it is time-barred and therefore fails to state a cause of action. Defendants reiterate there previous arguments here, namely that Plaintiff alleges he resigned in January 2021, but did not file this action until January 17, 2024, more than three years later, and this claim is therefore time-barred.
In opposition, Plaintiff concedes that this cause of action is time-barred.
The Court agrees with Defendants. Plaintiff filed this action more than two years after he allegedly resigned. (See Compl., ¶ 29.) Plaintiff also concedes this cause of action is time-barred. (Opp., 2:6-8.) Plaintiff’s claim is therefore time-barred. (Prue, supra, 242 Cal.App.4th at p.1382.) This is also a defect that cannot be remedied by amendment.
Accordingly, the Court SUSTAINS the demurrer to the Seventeenth Cause of Action without leave to amend.
Eighth Cause of Action – Disability Discrimination
To state a cause of action for disability discrimination, the plaintiff must allege facts demonstrating, “that he or she (1) suffered from a disability, or was regarded as suffering from a disability; (2) could perform the essential duties of the job with or without reasonable accommodations, and (3) was subjected to an adverse employment action because of the disability or perceived disability. [Citation.]” (Sandell v. Taylor-Listug, Inc. (2010) 188 Cal.App.4th 297, 310.)
The law of this state contains broad definitions of physical disability, mental disability, and medical condition. It is the intent of the Legislature that the definitions of physical disability and mental disability be construed so that applicants and employees are protected from discrimination due to an actual or perceived physical or mental impairment that is disabling, potentially disabling, or perceived as disabling or potentially disabling.”
(Gov’t Code, § 12926.1, subd. (b).)
Defendants demur to the Eighth Cause of Action for disability discrimination on the grounds that it fails to state a cause of action and is uncertain. Defendants contend the complaint fails to allege any facts demonstrating that Plaintiff suffered from a disability, and argues that Plaintiff’s alleged medical conditions involving tuberculosis and COVID-19 do not qualify as disabilities. Defendants then contend Plaintiff does not allege facts establishing whether he could perform his essential job duties with or without accommodation or what the alleged adverse employment action based on disability was. Defendants further contend the complaint is self-contradictory and therefore unintelligible because Plaintiff both alleges that he resigned and was terminated.
In opposition, Plaintiff contends COVID-19 is a contagious disease, and that contagious diseases and tuberculosis are included under the definition of a disability under the FEHA, citing California Code of Regulations, Title 2, section 14020, subdivision (p)(7). Plaintiff contends the complaint alleges Plaintiff suffered from a disability that limited major life activities, or alternatively from a perceived disability, and that he requested accommodations for this disability, but was denied them by having his hours cut or being sent home from work.
The Court finds Plaintiff has sufficiently alleged a cause of action for disability discrimination. Plaintiff correctly contends that tuberculosis is included in the definition of a disability. (Cal. Code Regs., tit. 2, § 14020, subd. (p)(7) [“The definition of disability in this subchapter shall be construed in favor of broad coverage of individuals under this subchapter, to the maximum extent permitted by the terms of this subchapter. Disabilities include contagious diseases… tuberculosis…”) The occurrence of the COVID-19 pandemic supports the inference that COVID-19 is a contagious disease that also fits within this definition. The complaint alleges that Plaintiff suffered from those illnesses while working for Defendants, and that Defendants refused to accommodate his requests for taking lunch at specific times each day for his tuberculosis medication, among other things. (Compl., ¶¶ 20-21.)
With respect to alleging both resignation and termination, the Court does not find those allegations contradictory. Constructive termination specifically covers the situation in which an employee quits but is legally treated as termination. (Prue, supra, 242 Cal.App.4th at p. 1382.)
Based on the foregoing, the Court OVERRULES the demurrer to the Eighth Cause of Action.
Ninth Cause of Action – Race Discrimination
To state a cause of action for racial discrimination, the plaintiff must allege facts demonstrating that the plaintiff was a member of a protected class, the plaintiff was qualified for the position sought or competently performed in the position held, the plaintiff suffered an adverse employment action, and the actions under the circumstances suggest a discriminatory motive. (McDonell Douglas Corp. v. Green (1973) 411 U.S. 802.)
Defendants demur to the Ninth Cause of Action for racial discrimination on the grounds that the complaint fails to state a cause of action and is uncertain. Defendants contend the complaint fails to properly allege an adverse employment action to sustain a claim for race discrimination. Defendants also reiterate their argument that the complaint is self-contradictory and unintelligible due to it alleging Plaintiff both resigned and was terminated.
In opposition, Plaintiff contends the complaint identifies multiple adverse employment actions taken against him due to his race, such as the owner favoring Asian employees over Hispanic and African American employees, inviting Asian employees to lunch while Plaintiff was not allowed to take meal and rest breaks, sending Plaintiff home early or cutting his hours, failing to pay Plaintiff overtime or commissions, all of which ultimately led to Plaintiff’s resignation.
The Court finds Defendants’ arguments persuasive. Plaintiff fails to allege any facts demonstrating that he is a member of a protected racial class. Plaintiff also fails to allege any facts demonstrating any adverse action based on his race or in response to his admonishments of Jung’s negative comments about African Americans.
Based on the foregoing, the Court SUSTAINS the demurrer to the Ninth Cause of Action with leave to amend.
Tenth Cause of Action – Work Environment Harassment
To allege a cause of action for harassment, the plaintiff must allege facts demonstrating that he or she was subjected to offensive comments or other abusive conduct based on a protected characteristic that was sufficiently severe or pervasive to affect the conditions of the plaintiff’s employment. (Serri v. Santa Clara Univ. (2014) 226 Cal.App.4th 830, 871.)
Defendants demur to the Tenth Cause of Action for work environment harassment on the grounds that the complaint fails to state a cause of action and is uncertain. Defendants contend Plaintiff does not allege conduct sufficient to support a claim for harassment. Defendants contend that the complaint fails to show how the alleged comments unreasonably interfered with Plaintiff’s work performance and otherwise only makes repeated vague allegations about retaliation.
In opposition, Plaintiff reiterates that Mr. Jung would make racist comments about African American employees and would rebuff Plaintiff’s admonishments, failed to accommodate Plaintiff’s need for lunch breaks to take his tuberculosis medication, would complain to other employees about Plaintiff taking a lunch, and then send Plaintiff home early or cut his hours for taking a meal break.
The Court finds Defendants’ arguments unavailing. Whether the alleged comments and conduct were severe and pervasive are questions of fact, (Davis v. Team Elec. Co. (9th Cir. 2008) 520 F.3d 1080, 1096), which generally are not resolvable on a demurrer, (see TracFone Wireless, Inc. v. Cnty. of Los Angeles (2008) 163 Cal.App.4th 1359, 1368). The complaint alleges Defendants engaged in multiple instances of offensive comments or abusive conduct. (Compl., ¶¶ 19-26.) There is no one way to interpret these allegations at this stage of the litigation. (See TracFone Wireless, Inc. v. Cnty. of Los Angeles, supra, 163 Cal.App.4th at p. 1368.)
Accordingly, the Court OVERRULES the demurrer to the Tenth Cause of Action.
Eleventh Cause of Action – Retaliation
To state a cause of action for retaliation, the plaintiff must allege facts demonstrating that the plaintiff engaged in a protected activity, the defendant employer undertook an adverse employment action in response, and a causal link between the protected activity and the adverse employment action. (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042; Gov’t Code, § 12940, subd. (h).) Facts demonstrating intent to retaliate must also be alleged. (Joaquin v. City of Los Angeles (2012) 202 Cal.App.4th 1207, 1230.)
Defendants demur to the Eleventh Cause of Action for retaliation on the grounds that the complaint fails to state a cause of action and is uncertain. Defendants contend the complaint makes no factual allegations regarding Plaintiff engaging in any protected activity or how Defendants supposedly retaliated. Defendants further contend the complaint fails to allege what was the substantial motivating reason for Plaintiff’s resignation. Defendants also reiterate their argument that the complaint is self-contradictory and unintelligible.
In opposition, Plaintiff contends to have opposed racial harassment and discrimination, and requested reasonable accommodations for when he had tuberculosis and COVID-19, which are protected activities.
The Court finds Defendants’ arguments unpersuasive. The complaint alleges that Plaintiff complained to Jung about him making racist comments, which Jung dismissed and told Plaintiff to stay quiet. (Compl., ¶ 23.) The complaint also alleges Defendants have not paid Plaintiff overtime, and refused to pay him commissions owed. (Compl., ¶¶ 24-26.)
However, with respect to retaliatory motive, the Court finds the complaint fails to allege sufficient facts. “The retaliatory motive is ‘proved by showing that plaintiff engaged in protected activities, that his employer was aware of the protected activities, and that the adverse action followed within a relatively short time thereafter.’ [Citation.]” (Fisher v. San Pedro Peninsula Hosp. (1989) 214 Cal.App.3d 590, 615.) The complaint contains no allegations about how soon after Plaintiff complained to Jung the alleged adverse employment action or actions happened. The Court also notes that Plaintiff’s opposition does not address this argument, which the Court construes as a tacit admission that Defendant’s argument is meritorious. (See Opp., 9:8-21; Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410; C. Opposing the Motion—and Rebutting the Opposition, Cal. Prac. Guide Civ. Pro. Before Trial Ch. 9(I)-C, ¶ 9:105.10; see also Moulton Niguel Water Dist. v. Colombo (2003) 111 Cal.App.4th 1210, 1215 [“Contentions are waived when a party fails to support them with reasoned argument and citations to authority. [Citation.]”])
Additionally, as stated above, the Court finds Defendants’ arguments regarding the complaint being self-contradictory and unintelligible unpersuasive. Constructive wrongful termination ordinarily involves the employee quitting, but the court still legally treats it as a termination. (Prue, supra, 242 Cal.App.4th at p. 1382.)
Accordingly, the Court SUSTAINS the demurrer to the Eleventh Cause of Action with leave to amend.
Twelfth Cause of Action – Failure to Prevent Harassment, Discrimination and Retaliation
To allege a cause of action for failure to prevent harassment, discrimination and retaliation, the plaintiff must allege facts demonstrating that the defendant failed to take all reasonable steps necessary to prevent discrimination and harassment from occurring. (Gov’t Code, § 12940, subd. (k).) “’[C]ourts have required a finding of actual discrimination or harassment under FEHA before a plaintiff may prevail under section 12940, subdivision (k).’ [Citation.]” (Dickson v. Burke Williams, Inc. (2015) 234 Cal.App.4th 1307, 1314.)
Defendants demur to the Twelfth Cause of Action for failure to prevent harassment, discrimination, and retaliation on the grounds that the complaint fails to state a cause of action and is uncertain. Defendants contend this cause of action fails because the complaint fails to allege facts demonstrating discrimination and harassment.
In opposition, Plaintiff contends to have sufficiently pleaded discrimination, harassment, and retaliation, so this cause of action is also sufficiently pleaded.
The Court rejects Defendants’ arguments. As shown above, the Court found the complaint does in fact allege sufficient facts to state a cause of action for discrimination and harassment. As such, the complaint sufficiently alleges facts to support this cause of action as well.
Based on the foregoing, the Court OVERRULES the demurrer to the Twelfth Cause of Action.
Thirteenth Cause of Action – Retaliation (Second Count - Labor Code §§ 98.6, 1102.5, 6310)
To state a cause of action for retaliation under Labor Code sections 98.6, 1102.5, and 6310, the plaintiff must allege facts demonstrating that the plaintiff disclosed information to or complained to a government agency or to a person with authority over the employee regarding a workplace related violation and the defendant retaliated against the plaintiff in response. (Lab. Code, §§ 98.6, 1102.5, 6310.)
Defendants demur to the Thirteenth Cause of Action for retaliation under Labor Code sections 98.6, 1102.5, and 6310, on the grounds that the complaint fails to state a cause of action and is uncertain. Defendants contend the complaint fails to allege that Plaintiff disclosed any Labor Code violation before his resignation.
In opposition, Plaintiff contends to have sufficiently pleaded having engaged in a protected activity when complaining about racist conduct, unlawful wage and hour practices, and Defendant’s failure to pay Plaintiff earned wages, including commissions.
The Court agrees with Plaintiff. The complaint contains allegations that Plaintiff disclosed information or made complaints to Jung, who had authority over Plaintiff, regarding Defendant’s failure to allow him meal and lunch breaks, and Defendant’s failure to pay him for overtime and commissions, and requiring employees, including Plaintiff to make fraudulent and illegal reports to the bank and that Defendants retaliated against Plaintiff because of such actions. (Compl., ¶¶ 21, 24, 25, 27.)
Accordingly, the Court OVERRULES the demurrer to the Thirteenth Cause of Action.
Fourteenth Cause of Action – Failure to Provide Reasonable Accommodation
To state a cause of action for failure to provide reasonable accommodation, the plaintiff must allege facts demonstrating a disability covered by the FEHA, the plaintiff can perform the essential functions of the position, and the employer failed to reasonably accommodate the disability. (Brown v. Los Angeles Unified Sch. Dist. (2021) 60 Cal.App.5th 1092, 1107.)
Defendants demur to the Fourteenth Cause of Action on the grounds that the complaint fails to state a cause of action and is uncertain. Defendants contend the complaint is deficient because Plaintiff fails to allege facts showing he suffered from a disability, facts regarding his requested accommodation, and facts showing how and when Defendants failed to accommodate his disability. Defendants contend the allegations regarding tuberculosis and COVID are insufficient to show that Plaintiff suffered any actual or perceived disability. Defendants further contend the complaint fails to allege that Plaintiff requested disability accommodation or requested to engage in the interactive process for accommodation purposes.
In opposition, Plaintiff contends he notified Mr. Jung regarding his medical condition and told him that he needed to take a lunch break before taking his medication and that he needed to take his medication at specific times throughout the day, which Mr. Jung disregarded. Plaintiff also contends Mr. Jung would complain to other staff about Plaintiff taking a lunch, cut his hours, or send him home early.
The Court finds Plaintiff has adequately alleged a cause of action for failure to provide reasonable accommodation. As noted above, the Court finds Plaintiff has sufficiently alleged facts demonstrating a disability, namely tuberculosis and COVID-19. (Compl., ¶¶ 20-21.) The complaint also alleges that Plaintiff requested accommodations to take lunch at specific times throughout the day for his tuberculosis medication, and that Mr. Jung failed to accommodate these requests. (Compl., ¶¶ 20-21.)
Therefore, the Court OVERRULES the demurrer to the Fourteenth Cause of Action.
Fifteenth Cause of Action – Failure to Engage in Interactive Process
To state a cause of action for failure to engage in interactive process, the plaintiff must allege facts demonstrating that the defendant failed to engage in a timely, good faith, interactive process with the plaintiff to determine effective reasonable accommodations in response to a request for reasonable accommodations by an employee or applicant with a known disability or medical condition. (Gov’t Code, § 12940, subd. (n).) “Two principles underlie a cause of action for failure to provide a reasonable accommodation. First, the employee must request an accommodation. [Citation.] Second, the parties must engage in an interactive process regarding the requested accommodation and, if the process fails, responsibility for the failure rests with the party who failed to participate in good faith. [Citation.] While a claim of failure to accommodate is independent of a cause of action for failure to engage in an interactive dialogue, each necessarily implicates the other.” (Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34, 54.)
Defendants demur to the Fifteenth Cause of Action for failure to engage in interactive process on the grounds that the complaint fails to state a cause of action and is uncertain. Defendants contend this claim fails because Plaintiff has not properly alleged that he suffered from a disability, and because there does not appear to be any facts showing that Plaintiff initiated the interactive process with Defendants or that he required any additional accommodation.
In opposition, Plaintiff made the same arguments regarding
the Fourteenth Cause of Action.
Based on the foregoing, the Court OVERRULES the demurrer to the Fifteenth Cause of Action.
CONCLUSION
The Court SUSTAINS the demurrer to the Sixth, Seventh, and Seventeenth Causes of Action without leave to amend. The Court SUSTAINS the demurrer to the Ninth and Eleventh Causes of action with 20 days’ leave to amend. The Court OVERRULES the demurrer to the Eighth, Tenth, Twelfth, Thirteenth, Fourteenth, and Fifteenth Causes of Action.
Defendants are ordered to give
notice of the Court’s ruling within five calendar days of this order.