Judge: Maurice A. Leiter, Case: 24STCV00382, Date: 2024-06-17 Tentative Ruling

Case Number: 24STCV00382    Hearing Date: June 17, 2024    Dept: 54

Hearing Date: June 17, 2024

Department 54, Judge Maurice Leiter

Demurrer to Complaint

Moving Party: Defendants Arakelian Enterprises, Inc. and Brandi De La Torre

Responding Party: Plaintiff Adelaida Vasquez Gonzalez

T/R:     DEFENDANTS’ DEMURRER IS OVERRULED.

DEFENDANTS TO FILE AND SERVE ANSWERS TO THE COMPLAINT WITHIN 30 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 January 5, 2024, Plaintiff Adelaida Vasquez Gonzalez sued Defendants Arakelian Enterprises, Inc. and Brandi De La Torre, asserting causes of action for (1) discrimination; (2) harassment; (3) retaliation; (4) failure to prevent discrimination, harassment and retaliation; (5) retaliation; (6) wrongful termination; and (7) negligent supervision and retention. Plaintiff alleges her supervisors harassed and discriminated against her based on her gender by persistently making fun of her body and appearance.

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. Second Cause of Action for Sexual Harassment

The Fair Employment and Housing Act prohibition on harassment states: “It is an unlawful employment practice. . . .[f]or an employer, labor organization, employment agency, apprenticeship training program or any training program leading to employment, any other person, because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military veteran status, to harass an employee, an applicant, an unpaid intern or volunteer, or person providing services pursuant to a contract.” (Gov. Code § 12940(j)(1).) A hostile work environment is a recognized form of harassment. To establish a hostile work environment, harassment must be so severe or pervasive as to alter the conditions of the victim’s employment and create an abusive working environment based on the protected characteristic. (See Hughes v. Pair (2009) 46 Cal.4th 1045, 1043.)

Defendants assert Plaintiff cannot state a claim for sexual harassment because the alleged harassment was not based on Plaintiff’s sex, and because the alleged harassment is based on “patently innocuous teasing statements.”

Plaintiff alleges her supervisors consistently mocked her appearance, stating her “butt was too big” and her clothing was ugly. Plaintiff alleges that on one occasion “DeLatorre printed a picture of a cartoon elephant from Sesame Street, ‘Snuffleupagus’, held it up in front of Plaintiff’ co-workers, and laughingly mocked Plaintiff by saying ‘this is you!, this is what you remind me of’! DeLatorre then grabbed some tape and taped the picture on a wall, mocking Plaintiff the entire time.” (Compl. 19.) Plaintiff claims Defendants ignored her complaints about this conduct and refused to provide Plaintiff with work support in retaliation for her complaints. Plaintiff alleges this caused her to suffer panic attacks that prevented her from working, causing her to be constructively terminated. This is sufficient to state a cause of action for sexual harassment.

The demurrer to the second cause of action is OVERRULED.

B. First Cause of Action for Discrimination

To establish a claim for discrimination in violation of FEHA, the plaintiff must generally prove that (1) he or she was a member of a protected class; (2) that he or she was qualified for the position he or she sought or was performing competently in the position he or she held; (3) that he or she suffered an adverse employment action, such as termination, demotion, or denial of an available job; and (4) some other circumstance suggesting discriminatory motive. (See Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 355.) 

Defendants assert Plaintiff cannot state a claim for discrimination because she was not subjected to an adverse employment action. Defendants argue that Plaintiff was not constructively discharged because the allegations of harassment “hardly such intolerable working conditions that a reasonable person in the Plaintiff’s position would feel compelled to resign.” As stated, Plaintiff has sufficiently alleged harassment. It follows that Plaintiff has alleged working conditions sufficiently intolerable that a reasonable person could feel compelled to resign.

The demurrer to the first cause of action is OVERRULED.

C. Third Cause 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 cause of action for retaliation on the ground that Plaintiff cannot allege an adverse employment action. Plaintiff alleges Defendants refused to provide her with work support after her complaints of harassment and created a work environment so intolerable she was forced to resign. This is sufficient to allege an adverse employment action.

The demurrer to the third cause of action is OVERRULED.

D. Fourth, Fifth and Sixth Causes of Action

Defendants demur to the fourth, fifth and sixth causes of action on the ground that they are derivative of the first, second and third. Plaintiff has alleged sufficient facts to support the first, second and third causes of action.

The demurrer to the fourth, fifth and sixth causes of action is OVERRULED.