Judge: Mel Red Recana, Case: 23STCV21243, Date: 2024-09-03 Tentative Ruling
Case Number: 23STCV21243 Hearing Date: September 3, 2024 Dept: 45
Hearing
date: 09/03/2024
Moving
Party: MEMORIAL HEALTH SERVICES (Defendant)
Responding
Party: Mary
Minar, D.O. (Plaintiff)
Demurrer
with Motion to Strike
The Court
considered the moving papers, opposition, and reply.
The
demurrer is OVERRULED in part and SUSTAINED in part. The demurrer to the claims
for retaliation under Government Code section 12940 et seq. and Labor Code section
1102.5 are OVERRULED. The demurrer to the claims for religious discrimination under
Government Code section 12940 et seq. and misrepresentation are SUSTAINED with
leave to amend.
The
motion to strike is GRANTED in part and DENIED in part. The motion to strike
lines 41:27-42:8 (religious
discrimination), 42:9-23(religious discrimination), 46:14-23
(misrepresentation) is denied as moot based on the court’s ruling on demurrer.
In all other respects the motion is GRANTED with leave to amend.
Plaintiff
has twenty days from notice of this order to file an amended complaint. Defendant
is ordered to give notice and file proof of service.
Background
On
September 1, 2023, plaintiff Mary Minar, D.O., (plaintiff) filed an employment
action against defendants Memorial Care Medical Group (Memorial Group),
Memorial Health Services (Memorial Services), Memorial Care Medical Foundation (Memorial
Foundation), and Memorial Care (collectively defendants).
She
alleged nine claims for disability discrimination (COA 1), failure to engage in
the interactive process (COA 2), failure to provide a reasonable accommodation
(COA 3), retaliation in violation of FEHA (COA 4), gender discrimination (COA
5), retaliation in violation of Labor Code section 1102.5 (Section 1102.5) (COA
6), religious discrimination (COA 7), misrepresentation (COA 8), and wrongful
termination (COA 9).
Defendants
now demurrer to claims for retaliation in violation of FEHA, retaliation in
violation of Section 1102.5, religious discrimination, and misrepresentation,
respectively, the fourth, sixth, seventh, and eight causes of action.
Defendants also move to strike the prayer for punitive damages and all
supporting allegations.
It
appears through some inadvertence, Plaintiff failed to file and serve an
opposition to the demurrer. Instead, she filed and served a second opposition
to the motion to strike. Defendants confirm in the reply that they did not
receive an opposition addressing the arguments in the demurrer. This apparent procedural error does not rise
to the level of abandonment requiring the entire demurrer be sustained without
leave to amend. Plaintiff’s citation to Herzberg v. County of Plumas (2005 1333
Cal.App.4th 1, 20 for this issue is inapt. It dealt with abandonment on appeal,
not on a demurrer.
Meet
and Confer
In support of the demurrer with a motion
to strike, defendants submit the declaration of defense counsel Bengamin
Reynolds. Reynolds declares that on two different occasions (10/3/2023, and
10/12/2023) he emailed opposing counsel at mail@mpg-law.com (the address listed on the complaint) to meet and
confer over issues related to the complaint. Reynolds attaches the emails the
declaration and further declares he never received a response. This declaration
is sufficient under Code of Civil Procedure section 430.41, subdivision (a)(3)
which provides the appropriate statements in the declaration. Specifically,
subdivision (a)(1)(B) permits a party to state “That the party who filed the
pleading subject to demurrer failed to respond to the meet and confer request
of the demurring party or otherwise failed to meet and confer in good faith.”
Allegations
Plaintiff alleges she is a board-certified Osteopath
who had a thriving private practice when, in October 2019, defendants offered
her a full-time position. To entice plaintiff to leave her practice, defendants
promised plaintiff that she would become a shareholder within eighteen months
of working with them. However, defendants’ ultimate intention was to take
plaintiff’s clients, who followed her, and then terminate plaintiff. At the
time she took the position, plaintiff believed that the representations about
making her a shareholder were reliable because she was aware of other male
physicians who had received similar promises and who had become shareholders.
Plaintiff alleges she worked for
defendants from December 2019 until July 2022. During her employment, plaintiff
requested a religious exemption for the Covid-19 vaccine due to a sincerely
held religious belief. Defendants refused to honor plaintiff’s request.
Additionally, plaintiff alleges that
from January 5, 2021, through February 2021, plaintiff was on medical leave for
surgery. During this period defendants reviewed to engage in the interactive
process. When she returned to work defendants had locked her out of the system.
When she reobtained access, she 287 emails from patients regarding medications
and refills. During this period plaintiff also requested an ergonomic
evaluation because working at her computer was causing stress on her neck. She
also requested an accommodation to leave early on Thursday to rest her neck. In
August 2021, plaintiff received the ergonomic evaluation. The evaluation
concluded that plaintiff’s computers were improperly set up. Around that same
time, plaintiff’s physician recommended epidurals, PT, and an ablation to treat
her pain before deciding on surgery.
Plaintiff alleges in June 2021,
defendants’ shareholders interview her.
Plaintiff alleges her doctor placed
her on medical leave in September 2021. When plaintiff inquired about her
shareholder status defendants informed her, they would wait until she returned
from medical leave. In March 2022, plaintiff had another surgery. In June 2022,
her anticipated return to work date was September 2022. However, in July 2022,
defendants terminated her. Defendants retained all of plaintiff’s clients.
Legal
Standard for Demurrer
A demurrer for
sufficiency tests whether the complaint states a cause of action. (Hahn v.
Mirda (2007) 147 Cal.App.4th 740, 747 (Hahn).) When considering demurrers,
courts read the allegations liberally and in context. (See Schultz v. Harney
(1994) 27 Cal.App.4th 1611, 1622, as modified on denial of reh’g (Sept. 29,
1994).) The court “take[s] as true all properly pleaded material facts, but not
conclusions of fact or law asserted in the complaint.” (Sheen v. Wells Fargo
Bank, N.A. (2022) 12 Cal.5th 905, 916.)
At the pleading
stage, a plaintiff need only allege ultimate facts sufficient to apprise the
defendant of the factual basis for the claim against them. (Semole v.
Sansoucie (1972) 28 Cal.App.3d 714, 721.) “The allegations of the pleading
demurred to must be regarded as true.” (South Shore Land Co. v. Peterson
(1964) 266 Cal.App.2d 725, 732.) A “demurrer does not, however, admit
contentions, deductions or conclusions of fact or law alleged in the pleading,
or the construction of instruments pleaded, or facts impossible in law.” (Ibid.
[internal citations omitted].)
Discussion
for Demurrer
Retaliation in Violation of FEHA
The first issue is whether plaintiff has alleged a protected activity
which falls within FEHA.
To establish a prima facie case of 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.)
With respect to protected activity, Government Code section 12940
(Section 12940), subdivision (h) it makes it unlawful for any employer to “discharge,
expel, or otherwise discriminate against a person because the person has
opposed any practices forbidden under this part or because a person has filed a
complaint, testified, or assisted in any proceeding under this part.” (Gov’t.
Code, §12940, subd. (h).) Under subdivision (h) notifying an employer of
medical status is not a protected activity on which a retaliation claim can be
based. (See Moore v. Regents of Univ. of Calif. (2016) 248 Cal.App.4th
216, 247-248.) On the other hand, under subdivision (m) (2) it is unlawful for
an employer to “retaliate or otherwise discriminate against a person for
requesting an accommodation under this subdivision regardless of whether the
requests was granted.”
Here, plaintiff states she brings her retaliation claim under Section
12940 but does not state which subdivision. Reading the allegations liberally
and in context, plaintiff is attempting to make a claim under Section 12940
subdivision (m) (2), not (h). She alleges that defendants did not accommodate
her disability and did not engage in the interactive process. She states
“[i]nstead of making any attempts to accommodate PLAINTIFF, EMMPLOYER
DEFENDANTS discriminated against PLAINTIFF based on her known physical
disability by terminating her, so that they would not have to make any
accommodations for her injuries.” (Compl., ¶110.) This is sufficient to allege
a claim for retaliation.
Defendant’s reliance on Moore to show plaintiff has not alleged a
protected activity in inapt because Moore does not discuss subdivision (m) (2),
except to note that the plaintiff’s claim arose before the statute changed to
include subdivision (m) (2) and it therefore did not apply.
Accordingly, the demurrer is overruled.
Retaliation in Violation of Section 1102.5
With respect to retaliation under Section 1102.5 (as opposed to FEHA) the
standards are not identical. Defendant’s briefing and case law only pertains to
FEHA and offers no separate analysis of Section 1102.5 and its requirements. As
defendant has not brief the issue, the demurrer is overruled.
Religious Discrimination
The issue is whether plaintiff has sufficiently alleged her employer was
aware of her bona fide religious belief and that it conflicted with an
employment requirement.
“ The elements of a religious creed discrimination claim are that: the
plaintiff had a bona fide religious belief; the employer was aware of that
belief; and the belief conflicted with an employment requirement.” (Friedman
v. S. Cal. Permanente Med. Grp. (2002) 102 Cal.App.4th 39, 45, as modified
(Sept. 24, 2002).)
Here, plaintiff has not alleged a
claim for religious creed discrimination. She alleges she “has a religious
beliefs that prevented her from getting COVID vaccination”, she “submitted a doctor’s note for the
exemption but [defendants] refused to honor it”, and defendants discriminated
against her “in refusing to acknowledge plaintiff’s religious exemption for the
COVID vaccine. . .” (Compl., ¶¶31, 197.) The facts, as alleged, do no meet the
elements. For example, there are no facts that defendants were aware of
plaintiff’s religious belief. Plaintiff alleges she submitted a doctor’s note
for a COVID exemption. It is not clear why a doctor would have background to
comment on religious beliefs. She does not state that the doctor’s note
informed defendants of her religious belief. She does not state that she
separately notified defendants of her sincerely held religious belief. She also
does not allege any facts explaining how her belief conflicted with her
religious creed. Plaintiff also does not allege whether the COVID vaccine was a
requirement for her position.
The demurrer is sustained with leave
to amend.
Misrepresentation
The issue is whether plaintiff has
pleaded her misrepresentation claim with sufficient particularity.
“The elements of
fraud, which give rise to the tort action for deceit, are (a) misrepresentation
(false representation, concealment, or nondisclosure); (b) knowledge of falsity
(or ‘scienter’); (c) intent to defraud, i.e., to induce reliance; (d)
justifiable reliance; and (e) resulting damage.” (Lazar v. Superior Court
(1996) 12 Cal. 4th 631, 638.) “[F]raud must be pled specifically; general and
conclusory allegations do not suffice. . . .This particularity requirement
necessitates pleading facts which show how, when, where, to whom, and by what
means the representations were tendered.” (Id. at p. 645 [internal
quotation marks and ellipses omitted].)
The elements of
negligent misrepresentation are: “(1) a misrepresentation of a past or existing
material fact, (2) without reasonable grounds for believing it to be true, (3)
with intent to induce another’s reliance on the fact misrepresented, (4)
ignorance of the truth and justifiable reliance thereon by the party to whom
the misrepresentation was directed, and (5) damages.” (B.L.M. v. Sabo &
Deitsch (1997) 55 Cal.App.4th 823, 834.)
Here, plaintiff has not sufficiently plead
the details surrounding the misrepresentation. Plaintiff alleges in October
2019 defendants promised her she would become a shareholder. She does not state
who made the misrepresentation and their authority to speak; it is also unclear
whether the misrepresentation
was made once or several times during several discussions. This is inadequate.
(See Lazar, supra, 12 Cal.4th at p. 645 [discussing the
standard for corporate misrepresentations.])
However, contrary to defendants’
argument, plaintiff has plead intent to induce reliance, and justifiable
reliance. She alleges that when she took the position, she believed the
representations were reliable because she knew of other male physicians who had
received similar promises which defendants kept.
The
demurrer is sustained with leave to amend.
Legal
Standard for Motion to Strike
The court may
strike out any “irrelevant, false, or improper matter inserted in any
pleading.” (Code Civ. Proc., §437) Motions may also target pleadings or parts
of pleadings that are not filed or drawn in conformity with applicable laws,
rules, or orders. (Code Civ. Proc., §437 subd., (b).) The grounds for moving to
strike must appear on the face of the pleading or by way of judicial notice.
(Code Civ. Proc., §437.) “When the defect which justifies striking a complaint
is capable of cure, the court should allow leave to amend.” (Vaccaro v. Kaiman
(1998) 63 Cal.App.4th 761, 768.)
Discussion
Motion to Strike
Defendants move to strike the following items: Complaint, pp. 11:13-22
(disability discrimination), 11:23-12:9 (disability discrimination), 17:2-11
(interactive process), 17:12-26 (interactive process), 22:21-23:2 (reasonable
accommodation), 23:3-17 (reasonable accommodation), 28:7-16 (FEHA Retaliation),
28:17-29:3 (FEHA Retaliation), 34:9-23 (Gender Discrimination), 38:9-18 (1102.5
Retaliation), 38:19-39:4 (1102.5 Retaliation), 41:27-42:8 (religious
discrimination), 42:9-23(religious discrimination), 46:14-23(misrepresentation),
51:14-23 (wrongful termination), 51:24-52:8 (wrongful termination), 53:15
(prayer).
The motion to strike 41:27-42:8
(religious discrimination), 42:9-23(religious discrimination), 46:14-23 (misrepresentation),
is denied as moot based on the court’s ruling on demurrer. With the respect to
the other allegations the court addresses them below.
Punitive Damages
The issue is
whether plaintiff’s allegations give rise to a claim for punitive damages.
To succeed on a
motion to strike punitive damages allegations, it must be said as a matter of
law that the alleged behavior was not so vile, base, or contemptible that it
would not be looked down upon and despised by ordinary decent people. (Angie
M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1228-1229.) The mere
allegation an intentional tort was committed is not sufficient to warrant an
award of punitive damages. (Grieves v. Superior Ct. (1984) 157 Cal. App.
3d 159, 166.) Punitive damages are available in non-contract actions where a
defendant is guilty of malice, fraud, or oppression. (Civ. Code, § 3294, subd.
(c) [defining each term].)
Regarding
employer liability, an employer is not liable for the acts of an employee
unless the employer had advanced knowledge of the unfitness of the employee and
employed them with a conscious disregard of the rights or safety of others or
ratified the conduct. (Civ. Code, §3294, subd. (b).) Regarding ratification,
“[a] corporation is not deemed to ratify misconduct, and thus become liable for
punitive damages, unless its officer, director, or managing agent actually knew
about the misconduct and its malicious character. A ‘managing agent’ is an
employee with authority to establish corporate policy, that is, the broad
principles and rules of general application which govern corporate conduct.” (Cruz
v. HomeBase (2000) 83 Cal.App.4th 160, 163l.)
Here, nowhere in
the allegations does plaintiff plead conduct by any specific employee let alone
a corporate officer, director or managing agent acting such that defendants are
liable for that conduct.
Plaintiff’s
arguments regarding the general standard for punitive damages misses the point.
The issue is the sufficiency of the allegations against the entities and the
lack of allegations linking individual conduct to the entity defendants. Here,
plaintiff has not made such allegations. Nor is plaintiff’s argument regarding standard
for whether a specific employee was a corporate officer, director, or managing
agent helpful. Whether an employee is an
officer, direct or managing agent is often a question of fact, but the issue
here is that there are no allegations about any specific employee which could
be imputed to the entity defendants.
The motion to
strike is granted with leave to amend.
It
is so ordered.
Dated:
_______________________
MEL RED RECANA
Judge of the
Superior Court