Judge: Mel Red Recana, Case: 23STCV27566, Date: 2024-11-19 Tentative Ruling

Case Number: 23STCV27566    Hearing Date: November 19, 2024    Dept: 45

Superior Court of California

County of Los Angeles

Hearing date:               November 19, 2024

Moving Party:             Defendants Seizmic Inc., Jeremy McGookin, and Danny Medina

Responding Party:       Plaintiff Mario Sobalvarro

Demurrer with Motion to Strike

The Court considered the moving and opposition papers. No reply was filed.

            The Court rules as follows:

(1)   Defendants Seizmic Inc., Jeremy McGookin, and Danny Medina’s Demurrer to Plaintiff’s Complaint filed on January 3, 2024 is OVERRULED.

(2)   Defendants’ Motion to Strike portions of Plaintiff’s Complaint filed on January 3, 2024 is DENIED.

Background

            This is an employment dispute action. On November 9, 2023, plaintiff Mario Sobalvarro (“Plaintiff”) filed his complaint against defendants Seizmic Inc., Jeremy McGookin, and Danny Medina (collectively “Defendants”), asserting eight causes of action: (1) disability discrimination in violation of FEHA; (2) failure to provide reasonable accommodation in violation of FEHA; (3) failure to engage in the interactive process in violation of FEHA; (4) retaliation in violation of FEHA; (5) failure to prevent discrimination and/or retaliation in violation of FEHA; (6) whistleblower retaliation (Cal. Lab. Code § 1102.5); (7) wrongful termination in violation of public policy; and (8) intentional infliction of emotional distress.

            According to the complaint, Plaintiff has attention-deficit/hyperactivity disorder, anxiety, and depression.  Plaintiff worked for Seizmic, Inc., as a Computer Aided Design and Drafting Operator from July 2021 to July 2022.  McGookin and Medina were supervisors, agents, and or employees of Seizmic. Around March 2022, Defendants moved Plaintiff’s desk to a cubicle next to McGookin’s and Medina’s offices, but Plaintiff had difficulty concentrating at his new workstation due to his disability.  Plaintiff requested that Defendants move him back to his original workstation, and Defendants complied with the request for a period of 30 days.  However, after the 30 day period, Defendants concluded Plaintiff did not deserve accommodation for his disability and retracted the accommodation.  Plaintiff requested continued accommodation for his disabilities to no avail and was eventually terminated from his job in July 2022.

            On January 3, 2024, Defendants filed the instant Demurrer with Motion to Strike, to which Plaintiff opposed on November 4, 2024.  There is no reply as of November 14, 2024.

Legal Standard

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.)  When considering demurrers, courts read the allegations liberally and in context.  (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.)  In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice.  (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.)  “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters.  Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.”  (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.)  “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.”  (Hahn, supra, 147 Cal.App.4th at p. 747.)  The ultimate facts alleged in the complaint must be deemed true, as well as all facts that may be implied or inferred from those expressly alleged.  (Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403; see also Shields v. County of San Diego (1984) 155 Cal.App.3d 103, 133 [stating, “[o]n demurrer, pleadings are read liberally and allegations contained therein are assumed to be true”].) 

Discussion

Defendants demur to the third cause of action for Failure to Engage in the Interactive Process on the grounds that the Complaint fails to state facts sufficient to constitute this cause of action.  Defendants also demur to the eighth cause of action for Intentional Infliction of Emotional Distress on the grounds that the Complaint fails to state facts sufficient to constitute this cause of action.

A.     Meet and Confer

Before filing a demurrer, the demurring party is required to meet and confer “in person, by telephone, or by video conference with the party who filed the pleading that is subject to the demurrer for the purposes of determining whether an agreement can be reached through a filing of an amended pleading that would resolve the objections to be raised in the demurrer.” (Code Civ. Proc., § 430.41, subd. (a).)

The Court finds that the meet and confer requirement is satisfied based on the following.  On December 21, 2023, Defendants’ counsel emailed Plaintiff’s counsel a meet and confer letter detailing the basis for this Demurrer and inviting Plaintiff’s counsel to discuss these issues further via telephone.  (Declaration of Abraham L. Niman (“Niman Decl.”) ¶ 2.)  Plaintiff’s counsel thereafter emailed a detailed response, and counsel for both parties discussed these issues via phone call on December 28, 2023, but did not reach an agreement resolving the objections raised in the demurrer.  (Niman Decl., ¶ 3.)

B.     Third Cause of Action for Failure to Engage in the Interactive Process

Defendants demur to the third cause of action for failure to engage in the interactive process on the ground that the Complaint fails to show that Defendants failed to participate in a timely good-faith interactive process with Plaintiff to determine whether reasonable accommodation could be made. This is the sixth element listed below.

In order to allege a cause of action for failure to engage in interactive process, a plaintiff must allege the following facts: (1) plaintiff was an employee of defendant, (2) plaintiff had a disability known by defendant, (3) plaintiff requested that defendant make a reasonable accommodation for his or her disability so that he or she may be able to perform the essential job requirements, (5) plaintiff was willing to participate in an interactive process to determine whether a reasonable accommodation could be made so that he or she would be able to perform the essential job requirements, and (6) defendant failed to participate in a timely food-faith interactive process with plaintiff to determine whether a reasonable accommodation could be made.  (Gov. Code, § 12940, subd. (n); CACI No. 2546 [Disability Discrimination—Reasonable Accommodation—Failure to Engage in Interactive Process].) “Two principles underlie a cause of action for failure to provide a reasonable accommodation.  First, the employee must request an accommodation.  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.”  (Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4thh 34, 54.) 

Here, the Court finds that Plaintiff has sufficiently pled, for purposes of surviving demurrer, that Defendants failed to engage in a timely, good faith interactive process following Plaintiff’s request for an accommodation.  Plaintiff alleges that he contested Seizmic’s determination (that he did not deserve accommodation after the 30-day period) and reiterated that he needed continued accommodation for his disabilities, but Seizmic ignored him.  (Complaint, ¶ 13.)  On or around June 8, 2022, just a few days after Plaintiff requested continued accommodation for his disabilities, Seizmic issued Plaintiff an unwarranted written warning for purported unexcused absences. Seizmic informed Plaintiff that, on July 11, 2022, Seizmic would assess and discuss improvement in his punctuality or lack thereof.  (Id. at ¶ 15.)  On or around June 13, 2022, Plaintiff again requested accommodation, including that he be able to return to a non-distractive workspace, but Defendants denied his request.  (Id. at ¶ 16.)  It follows, Plaintiff has sufficiently pled that Defendants failed to engage in an interactive process following his multiple requests for an accommodation.  Further, notwithstanding the one attempt by Defendants to accommodate Plaintiff’s disability, Defendants ignored Plaintiff’s contest of Defendant’s determination as well as Plaintiff’s reiteration that he need continued accommodation for his disabilities.

Based on the foregoing, Defendants’ Demurrer to Plaintiff’s third cause of action is overruled.

C.     Eighth Cause of Action for Intentional Infliction of Emotional Distress

Defendants demur to the eighth cause of action for intentional infliction of emotional distress on the ground that Plaintiff has not alleged any “outrageous” conduct.

In order to properly allege a cause of action for intentional infliction of emotional distress, a plaintiff must allege the following elements: “(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff suffered severe emotional distress; and (3) the defendant's extreme and outrageous conduct was the actual and proximate cause of the severe emotional distress.”  (Crouch v. Trinity Christian Center of Santa Ana, Inc. (2019) 39 Cal.App.5th 995, 1007.)  “Conduct, to be ‘ “outrageous,” ’ must be so extreme as to exceed all bounds of that usually tolerated in civilized society.”  (Trerice v. Blue Cross California (1989) 209 Cal.App.3d 878, 883.)  “Liability for intentional infliction of emotional distress ‘ “does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.” ’ ”  (Hughes v. Pair (2009) 46 Cal.4th 1035, 1051.)  “In order to avoid a demurrer, the plaintiff must allege with ‘great[ ] specificity’ the acts which he or she believes are so extreme as to exceed all bounds of that usually tolerated in a civilized community.”  (Vasquez, supra, 222 Cal.App.4th at p. 832.) 

Here, the Court finds that Plaintiff has alleged sufficient facts to support his claim for intentional infliction of emotional distress.  Plaintiff has alleged sufficient facts to demonstrate that Defendants’ conduct may have rose to the levels of “extreme and outrageous.” Plaintiff alleges, in particular, that McGookin created a toxic work environment that exacerbated Plaintiff’s disability by issuing Plaintiff frivolous and unwarranted written warnings, and thereby created a false record of transgressions that besmirched Plaintiff’s reputation and threatened his job security.  (Complaint, ¶ 99.)  McGookin also threatened Plaintiff that he would lose his job if he continued to complain.  (Id.)  As to Medina, it is alleged that he sanctioned the repeated discipline of Plaintiff to berate him into silence.  (Id. at ¶ 101.)  Pursuant to circumstances alleged by Plaintiff, including the foregoing, the Court finds that Plaintiff has sufficiently pled a cause of action for intentional infliction of emotional distress.  Further, when reasonable persons may differ, it is for the jury, subject to the control of the court, to determine whether, in the particular case, the conduct has been sufficiently extreme and outrageous to result in liability.¿ (Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 499.) 

Based on the foregoing, Defendants’ Demurrer to Plaintiff’s eighth cause of action is overruled.

Motion to Strike

Any party, within the time allowed to respond to a pleading, may serve and file a motion to strike the whole or any part thereof – i.e., even single words or phrases. (Code Civ. Proc. § 435(b)(1)); Warren v. Atchison, Topeka & Santa Fe Ry. Co. (1971) 19 Cal App.3d 24, 40.)  A motion to strike lies either: (1) to strike any “irrelevant, false or improper matter inserted in any pleading”; and/or (2) to strike any pleading or part thereof “not drawn or filed in conformity with the laws of this state, a court rule or order of court.” (Code Civ. Proc. § 436; Ferraro v. Camarlinghi (2008) 161 Cal.App.4th 509, 528.)  As with demurrers, the grounds for a motion to strike must appear on the face of the pleading, or from any matter which the court may judicially notice. (Code Civ. Proc. § 437.)

Defendants move strike paragraphs 20-22, 37, 48, 58, 68, 77, 89, 95, and 106 and page 20, line 5 of the Complaint, arguing that (1) Plaintiff has failed to allege facts sufficient to support a demand for punitive damages because the challenged paragraphs are boilerplate and conclusory; and (2) Plaintiff fails to properly request punitive damages against a corporate employer because the Complaint does not allege that an officer, director, or managing agent ratified any despicable conduct, as required by Civil Code section 3294.  However, upon review of the challenged paragraphs in context with the other facts alleged in the Complaint, the Court finds that Plaintiff alleges sufficient facts to support a claim for punitive damages.  Additionally, the Complaint does not merely allege that McGookin and Medina are Plaintiff’s supervisors as the Complaint also alleges that McGookin and Medina are “supervisor[s], agent[s], and/or employee[s] of Defendant.” (Complaint, ¶¶ 3, 4)  The Complaint then goes on to allege that:

Plaintiff is informed and believes and thereon alleges that each and all of the acts and omissions alleged herein were performed by, and/or are attributable to, all Defendants, each acting as agents and/or employees, and/or under the direction and control of each of the other Defendants, and that said acts and failures to act were within the course and scope of said agency, employment and/or direction and control. Plaintiff is informed and believes and thereon alleges that at all times material hereto Defendants were and are the agents of each other.

(Id. at ¶ 7.) The foregoing allegations are sufficient facts to support Plaintiff’s claim for punitive damages against a corporate employer.

            Accordingly, Defendants’ Motion to Strike is denied.

Conclusion

            Defendants Seizmic Inc., Jeremy McGookin, and Danny Medina’s Demurrer to Plaintiffs Complaint filed on January 3, 2024 is OVERRULED.

            Defendants’ Motion to Strike portions of Plaintiff’s Complaint filed on January 3, 2024 is DENIED.

It is so ordered.

Dated: November 19, 2024

_______________________

MEL RED RECANA

Judge of the Superior Court