Judge: Melissa R. Mccormick, Case: "Serrano v. MicroVention, Inc., et al.", Date: 2023-08-17 Tentative Ruling
Defendants MicroVention, Inc. and Kristin Leary’s Demurrer to Complaint
Defendants MicroVention, Inc. and Kristin Leary demur to the five causes of action in plaintiff Evelyn Serrano’s complaint. For the following reasons, defendants’ demurrer is overruled.
In ruling on a demurrer, a court must accept as true all allegations of fact contained in the complaint. Blank v. Kirwan (1985) 39 Cal.3d 311, 318. A demurrer challenges only the legal sufficiency of the affected pleading, not the truth of the factual allegations in the pleading or the pleader’s ability to prove those allegations. Cundiff v. GTE Cal., Inc. (2002) 101 Cal.App.4th 1395, 1404-05. Questions of fact cannot be decided on demurrer. Berryman v. Merit Prop. Mgmt., Inc. (2007) 152 Cal.App.4th 1544, 1556. Because a demurrer tests only the sufficiency of the complaint, a court will not consider facts that have not been alleged in the complaint unless they may be reasonably inferred from the matters alleged or are proper subjects of judicial notice. Hall v. Great W. Bank (1991) 231 Cal.App.3d 713, 718 n.7.
Plaintiff alleges she worked at MicroVention for five years beginning in January 2018. Plaintiff alleges that MicroVention hired Leary as its Chief People Officer in January 2022, and that plaintiff reported directly to Leary. Plaintiff alleges she and Leary “had an excellent working relationship from January 2022 to July 2022.” Plaintiff alleges she took a medical leave in July 2022, and that when she informed Leary about the leave, Leary “expressed frustration [and] unhappiness, and immediately responded, ‘do you want me to post your job?’” Plaintiff alleges on information and belief that during her leave, Leary told members of plaintiff’s team that “they do not need to know why but that after plaintiff’s return, plaintiff’s team would no longer be reporting to plaintiff.” Plaintiff alleges that the day after she returned to work on December 5, 2022, Leary told her that she had discovered performance issues with plaintiff’s job performance that plaintiff must remedy. Plaintiff alleges that from December 7, 2022 to January 12, 2023, Leary “began to nitpick all of plaintiff’s work, e-mails, and demonstrated a clear pattern of ‘papering’ the file to terminate plaintiff.” On January 12, 2023 MicroVention terminated plaintiff.
Defendants argue plaintiff has not sufficiently alleged exhaustion of administrative remedies. Plaintiff alleges she “timely filed her complaint with the State of California’s Department of Fair Housing and Employment Act and has received a right to sue letter.” Complaint ¶ 24. At this juncture, this allegation is sufficient. The cases on which defendants rely, i.e., Kim v. Konad USA Distribution, Inc. (2014) 226 Cal.App.4th 1345, Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th 1718, and Tejon Real Estate, LLC v. City of Los Angeles (2014) 223 Cal.App.4th 149, do not hold that plaintiff’s allegation is insufficient at this stage. Defendants’ demurrer based on an alleged inadequacy of plaintiff’s pleading of exhaustion of administrative remedies is overruled.
Plaintiff’s first cause of action alleges discrimination based on disability and medical leave in violation of the Fair Employment and Housing Act (FEHA). Plaintiff alleges that “[t]o the extent that plaintiff’s protected disability and protected leave were motivating factors contributing to plaintiff’s termination by defendants, said act by defendants constitutes employment discrimination . . . .”
MicroVention contends plaintiff has not alleged she suffered from a disability or that the alleged disability limited a major life activity. MicroVention also argues plaintiff has not alleged a nexus between her alleged disability and an adverse employment action.
Taking a medical leave of absence to address health issues, which prevented a plaintiff from working, constitutes a physical disability, such that an employer cannot discriminate against an employee for taking such a leave. Soria v. Univision Radio Los Angeles, Inc. (2016) 5 Cal.App.5th 570, 584, 588; Gov. Code, §§ 12940, 12926(m). This is what plaintiff alleges. Complaint ¶ 17.
Plaintiff also alleges her supervisor, defendant Leary, knew of plaintiff’s alleged physical disability, and that MicroVention, through Leary, discriminated against plaintiff for the physical disability and for taking a medical leave of absence. Complaint ¶¶ 18-22. These allegations state a sufficient nexus between plaintiff’s disability and leave of absence and the adverse employment action.
MicroVention also asserts plaintiff has not alleged she was capable of performing the essential functions of her job, whether with or without reasonable accommodation. Plaintiff does not allege she required an accommodation after returning from her medical leave. Instead, she alleges she was an exemplary employee, who consistently exceeded expectations in performance reviews. Complaint ¶¶ 14-15. In other words, plaintiff alleges she should not have been terminated, but instead was discriminated against for taking a medical leave of absence, which ultimately led to plaintiff’s termination. Id. ¶¶ 16, 18-22. MicroVention’s demurrer to the first cause of action is overruled.
Plaintiff’s second cause of action alleges retaliation in violation of the FEHA. Plaintiff alleges that during her employment with defendants, she “engaged in legally protected activity by informing defendant of plaintiff’s health concerns and qualified disabilities, yet was retaliated against based on such complaints and/or the failure to properly investigate such complaints. Plaintiff was further retaliated against for taking a qualified protected leave. [¶] Plaintiff was subjected to adverse employment actions as described above, including but not limited to her termination of employment and the pattern of systemic retaliation that preceded it as described above. [¶] The foregoing described above adverse employment actions were taken in part or in whole because of plaintiff’s legally protected activity as described above.”
MicroVention argues plaintiff has not alleged facts showing she engaged in a protected activity. MicroVention also argues plaintiff has not alleged a causal link between any alleged protected activity and an adverse employment action.
Plaintiff alleges a protected activity 9(i.e., taking a medical leave of absence), that she informed defendants of her need to take a medical leave of absence, and that she was retaliated against because she took a medical leave of absence. Complaint, ¶¶ 16-22. These allegations are sufficient to state a retaliation claim. MicroVention’s demurrer to the second cause of action is overruled.
Plaintiff’s third cause of action alleges wrongful termination in violation of public policy. Plaintiff alleges: “The above referenced actions of Defendants constitute a wrongful termination of plaintiff in violation of the public policy of the State of California as reflected in its laws and policies. Said laws include, but are not limited to, Article I, Section 8 of the Constitution, as well as Government Code § 12900, et seq. Defendants were obligated to refrain from discharging plaintiff, or any employee, for reasons which violate or circumvent said policies or objectives which underlie each.”
As discussed above, plaintiff’s first and second causes of action state claims for violation of the FEHA. Plaintiff’s third cause of action likewise alleges sufficient facts to state a claim for wrongful termination in violation of public policy. MicroVention’s demurrer to the third cause of action is overruled.
Plaintiff’s fourth cause of action alleges failure to engage in the interactive process in violation of the FEHA. Plaintiff alleges defendants knew, or should have known, “of the need to accommodate plaintiff’s health concerns, including the need to engage in the interactive process to determine how to achieve a reasonable alternative for plaintiff. However, defendants failed and refused to engage in the interactive process with plaintiff.”
MicroVention argues plaintiff has not alleged she triggered MicroVention’s duty to engage in the interactive process, as there are no allegations plaintiff requested an accommodation. An employer’s obligation to engage in the interactive process is triggered either by an employee’s request for accommodation or by the employer's recognition of the need for accommodation. See, e.g., Martinez v. Costco Wholesale Corporation (S.D. Cal. 2020) 481 F.Supp.3d 1076, 1098-1099.
Plaintiff alleges she had a physical disability that required her to take a medical leave of absence for nearly five months. Complaint ¶ 17. Plaintiff alleges MicroVention, through Leary, knew of plaintiff’s physical disability and need for a medical leave of absence, that Leary was openly hostile to plaintiff’s leave of absence, and that Leary created allegedly pretextual reasons to reprimand plaintiff, which, in plaintiff’s view “demonstrated a clear pattern of ‘papering’ the file to terminate Plaintiff.” Plaintiff alleges MicroVention used these pretextual reasons to subsequently terminate plaintiff’s employment. Complaint ¶¶ 18-22, 50-51.
Plaintiff does not allege she requested an accommodation other than the leave of absence, or that she needed an accommodation other than the leave of absence. But accepting plaintiff’s allegations as true as the court must on demurrer, MicroVention’s obligation to engage in the interactive process was triggered when it learned of plaintiff’s physical disability that required her to take a medical leave of absence. MicroVention’s demurrer to the fourth cause of action is overruled.
Plaintiff’s fifth cause of action alleges negligent infliction of emotional distress against MicroVention and Leary. Plaintiff alleges defendants “owed plaintiff a duty of care not to cause plaintiff emotional distress, including the duty to ‘take all reasonable steps necessary to prevent discrimination and harassment.’ Cal. Gov. Code § 12940(k).” Plaintiff alleges that “as alleged herein and above, defendants engaged in discriminatory, harassing, and retaliatory actions against plaintiff with wanton and reckless disregard of the probability of causing plaintiff to suffer extreme emotional distress. . . . [D]efendants knowingly harassed plaintiff based on her disability, causing her severe emotional distress. Defendants further caused plaintiff severe emotional distress by conspiring against plaintiff and terminating her employment for discriminatory and retaliatory reasons.”
Defendants contend plaintiff cannot state a claim for negligent infliction of emotional distress because the claim falls within the exclusive jurisdiction of the California Workers’ Compensation Act. Allegations of unlawful discrimination and retaliation in violation of the FEHA fall outside the compensation bargain, such that emotional distress caused by such discrimination and retaliation are not subject to workers’ compensation exclusivity. Light v. Department of Parks & Recreation (2017) 14 Cal.App.5th 75, 100, 101; Fretland v. County of Humboldt (1999) 69 Cal.App.4th 1478, 1492; see also Livitsanos v. Superior Court (1992) 2 Cal.4th 744, 745 (workers’ compensation exclusivity applies “so long as the basic conditions of compensation are otherwise satisfied, and the employer’s conduct neither contravenes fundamental public policy nor exceeds the risks inherent in the employment relationship); Smith v. International Brotherhood of Electrical Workers (2003) 109 Cal.App.4th 1637, 1658 (where “plaintiff’s emotional distress claims are based on his employer’s violation of fundamental public policies of this state, such misconduct cannot be considered a normal part of the employment relationship and the plaintiff’s remedy is not confined to workers’ compensation”). Defendants’ demurrer to the fifth cause of action is overruled.
Defendants are ordered to file and serve an answer by August 28, 2023
Plaintiff to give notice.
Defendants MicroVention, Inc. and Kristin Leary’s Motion to Strike
Defendants MicroVention, Inc. and Kristin Leary move to strike the punitive damages allegations and prayer in plaintiff Evelyn Serrano’s complaint (Complaint ¶¶ 34, 48, 54 and 63; Prayer for Relief ¶ 4. For the following reasons, defendants’ motion to strike is denied.
To properly allege entitlement to punitive damages, there must be circumstances of oppression, fraud or malice, and facts must be alleged in the pleading to support such a claim. Grieves v. Superior Ct. (1984) 157 Cal.App.3d 159, 166. “In order to survive a motion to strike an allegation of punitive damages, the ultimate facts showing an entitlement to such relief must be pled by a plaintiff. [Citations.] In passing on the correctness of a ruling on a motion to strike, judges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth. [Citations.] In ruling on a motion to strike, courts do not read allegations in isolation.” Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.
Plaintiff alleges defendants intentionally engaged in despicable conduct, namely, they discriminated and retaliated against her for having a physical disability that required her to take a medical leave of absence. Plaintiff alleges that when she advised Leary of the need for the medical leave, “Leary expressed frustration, unhappiness, and immediately responded ‘do you want me to post your job?’” Complaint, ¶ 18. Plaintiff alleges that before she returned from the leave of absence, plaintiff’s team was told they would no longer be reporting to plaintiff upon her return. Complaint ¶ 21. Plaintiff alleges that when she returned from the leave of absence, defendants suddenly began criticizing her work performance, even though plaintiff had, before the leave, consistently received outstanding performance reviews. Complaint ¶¶ 14-15, 19-20. Plaintiff alleges the negative feedback was done to “’paper’” the file to justify plaintiff’s eventual termination. Complaint, ¶¶ 19-20, 22. These allegations state sufficient facts to state a claim for punitive damages.
Plaintiff also alleges MicroVention and Leary were, inter alia, each other’s agents, employees, and representatives, and that they acted in concert with each other. Complaint ¶¶ 4, 6-11. These allegation, read in the context of the entire pleading, are sufficient to satisfy the requirement that MicroVention either authorized or ratified Leary’s conduct, or was itself “guilty of oppression, fraud or malice.” Civ. Code § 3294(b).
Defendants are ordered to file and serve an answer by August 28, 2023.
Plaintiff to give notice.
Case Management Conference
The trial is scheduled for January 27, 2025 at 9:00 a.m. in Department C13.
Clerk to give notice.