Judge: Maurice A. Leiter, Case: 22STCV17034, Date: 2023-09-28 Tentative Ruling

Case Number: 22STCV17034    Hearing Date: January 22, 2024    Dept: 54

Hearing Date: January 22, 2024

Department 54, Judge Maurice A. Leiter

Demurrer to Second Amended Complaint and Motion to Strike

Moving Party: Defendants Atlantic Solutions Group, Inc., Adam Kidan, Denise Gonzalez and Ivette Nieves

Responding Party: Plaintiff Socorro Jacobo Sandoval

T/R:      DEFENDANTS’ DEMURRER IS OVERRULED.

THE MOTION TO STRIKE IS GRANTED IN PART.

DEFENDANTS TO FILE AND SERVE ANSWERS TO THE SECOND AMENDED COMPLAINT WITHIN 20 DAYS OF NOTICE OF RULING.

DEFENDANTS TO NOTICE.

If the parties wish to submit on the tentative, please email the courtroom at SMCdept54@lacourt.org with notice to opposing counsel (or self-represented party) before 8:00 am on the day of the hearing.

The Court considers the moving papers, opposition, and reply.

BACKGROUND

On May 23, 2022, Plaintiff Socorro Jacobo Sandoval sued Defendants Atlantic Solutions Group, Inc. et. al., alleging twenty causes of action for FEHA violations and wrongful termination. Plaintiff alleges she was terminated because of her gender, because she needed lactation accommodations, and because she contracted COVID-19 at the workplace.

The Court sustained Defendants’ demurrer to the complaint and Plaintiff filed a first amended complaint on February 16, 2023, asserting nine causes of action for FEHA violations, wrongful termination, whistleblower retaliation and UCL violations.

On September 28, 2023, the Court sustained the demurrer to the FAC. Plaintiff filed the SAC on October 27, 2023, asserting eight causes of action for FEHA violations, wrongful termination, and whistleblower retaliation.

ANALYSIS

A demurrer to a complaint may be taken to the whole complaint or to any of the causes of action in it.  (CCP § 430.50(a).)  A demurrer challenges only the legal sufficiency of the complaint, not the truth of its factual allegations or the plaintiff's ability to prove those allegations.  (Picton v. Anderson Union High Sch. Dist. (1996) 50 Cal. App. 4th 726, 732.)  The court must treat as true the complaint's material factual allegations, but not contentions, deductions or conclusions of fact or law.  (Id. at 732-33.)  The complaint is to be construed liberally to determine whether a cause of action has been stated.  (Id. at 733.)

A. First Cause of Action for “Unlawful Employment Action” Based on Sex in Violation of FEHA

Defendants demur to the first cause of action on the ground that it is uncertain and was added to the SAC without leave. Defendants assert Plaintiff did not allege sex discrimination or harassment previously. The Court declines to sustain the demurrer on this basis. The previous iterations of the complaint did mention discrimination and harassment based on sex. Here, Plaintiff alleges she experienced adverse employment actions, such as reassignment, changes in job duties, and failure to accommodate Plaintiff’s lactation needs, due to her pregnancy. This is sufficient to allege discrimination and harassment based on sex.

The demurrer to the first cause of action is OVERRULED.

B. Second Cause of Action for Disability Discrimination

Government Code § 12940 provides that it is unlawful for an employer to refuse to hire or employ a person; to discharge a person from employment; or to discriminate against the person in compensation or in terms, conditions, or privileges of employment on the basis of physical disability and medical condition. (Gov. Code § 12940(a).)

Defendants demur to the second cause of action for disability discrimination on the ground that Plaintiff has failed to allege a disability and previously alleged that Defendants accommodated her disability. Plaintiff alleges she was disabled by her pregnancy and by contracting COVID-19 while pregnant. Plaintiff also alleges Defendants perceived Plaintiff as being disabled. Plaintiff alleges Defendants discriminated against her by reassigning her and terminating her employment. This is sufficient to allege disability discrimination.

The demurrer to the second cause of action is OVERRULED.

C. Sixth and Eighth Causes of Action for Retaliation

To establish retaliation under FEHA, a plaintiff must show that “(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.)

Defendants demur to the causes of action for retaliation on the ground Plaintiff has filed to allege protected activity. Plaintiff alleges she complained about the alleged acts of discrimination. This is sufficient to allege protected activity.

The demurrer to the sixth and eighth causes of action is OVERRULED.

D. Remaining Causes of Action

Defendants assert the remaining claims for failure to accommodate, failure to prevent, and wrongful termination fail because Plaintiff has not stated claims for discrimination. As discussed, Plaintiff has sufficiently alleged discrimination.

E. Motion to Strike

Any party, within the time allowed to response to a pleading, may serve and file a notice of motion to strike the whole or any part" of that pleading. (CCP § 435(b)(1).) “The Court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false or improper matter asserted in any pleading; (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the Court." (CCP § 436.)

Defendants move to strike the first cause of action, the requests for attorney’s fees and punitive damages, and the causes of action for retaliation as against the individual defendants. The Court declines to strike the first cause of action as previous iterations of complaints contain mentions of sex discrimination. Plaintiff has sufficiently alleged discrimination based on her pregnancy. This supports attorney’s fees and punitive damages. The Court agrees, however, that individual defendants may not be liable for retaliation.

The motion to strike is GRANTED as to the claims for retaliation against the individual defendants only.