Judge: Michael P. Linfield, Case: 22STCV09675, Date: 2022-08-30 Tentative Ruling

Case Number: 22STCV09675    Hearing Date: August 30, 2022    Dept: 34

SUBJECT:                 Defendant G&M Oil Company’s Demurrer to Plaintiff’s Complaint

Moving Party:          Defendant G&M Oil Company, Inc.

Resp. Party:             None

Defendant G&M Oil Company, Inc.’s Demurrer to the First, Second, Third, Fourth, Fifth, and Sixth Causes of Action in Plaintiff Juneshia White’s Complaint are all OVERRULED.

I.           BACKGROUND

On March 18, 2022, Plaintiff Juneshia White (“White”) filed a complaint against Defendant G&M Oil Company, Inc. (“G&M”) alleging the following causes of action:

1.           Employment Discrimination Because of Physical Disability (Cal. Govt. Code § 12900, et seq.);

2.           Failure to Reasonably Accommodate Physical Disability (Cal. Govt. Code § 12900, et seq.);

3.           Failure to Engage in a Timely, Good Faith, Interactive Process with Employee with a Physical Disability (Cal. Govt. Code § 12900, et seq.);

4.           Retaliation (Cal. Govt. Code § 12900, et seq.);

5.           Wrongful Termination (Cal. Govt. Code § 12900, et seq.); and

6.           Wrongful Termination in Violation of Public Policy

On June 2, 2022, the matter was reassigned at the direction of the Supervising Judge to Judge Michael P. Linfield in Department 34 at the Stanley Mosk Courthouse for all further proceedings. (Minute Order, June 2, 2022, p. 1.)

On July 1, 2022, Defendant G&M Oil Company, Inc. demurred to Plaintiff Juneshia White’s Complaint. No opposition has been filed.

II.        ANALYSIS

A.          Legal Standard

A demurrer is a pleading used to test the legal sufficiency of other pleadings. (Cty. of Fresno v. Shelton (1998) 66 Cal.App.4th 996, 1008–09; Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) It raises issues of law, not fact, regarding the form or content of the opposing party’s pleading. It is not the function of the demurrer to challenge the truthfulness of the complaint. (Unruh-Haxton v. Regents of Univ. of California (2008) 162 Cal.App.4th 343, 365, as modified (May 15, 2008).) For purpose of the ruling on the demurrer, all facts pleaded in the complaint are assumed to be true, however improbable they may be. (CCP §§ 422.10, 589.)

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311.) No other extrinsic evidence can be considered (i.e., no “speaking demurrers”). A demurrer is brought under Code of Civil Procedure § 430.10 (grounds), § 430.30 (as to any matter on its face or from which judicial notice may be taken), and § 430.50(a) (can be taken to the entire complaint or any cause of action within).

A demurrer may be brought under Code of Civil Procedure section 430.10, subdivision (e) if insufficient facts are stated to support the cause of action asserted. A demurrer for uncertainty may be brought pursuant to Code of Civil Procedure section 430.10, subdivision (f). “A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.) “In general, ‘demurrers for uncertainty are disfavored, and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.’” (Lickiss v. Financial Industry Regulatory Authority (2012) 208 Cal.App.4th 1125, 1135.)

B.          Discussion

1.           First Cause of Action for Employment Discrimination Because of Physical Disability (Cal. Govt. Code § 12900, et seq.)

To establish a prima facie case of employment discrimination based on physical disability, White must provide evidence that she (1) was a member of a protected class based on a physical disability as defined by the Fair Employment and Housing Act (“FEHA”) (Cal. Govt. Code § 12926(m)(1-6).), (2) performed competently in the position she held, (3) suffered an adverse employment action, such as termination, and (4) some other circumstances suggests discriminatory motive. (Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 355.)

White alleges that she was a member of a protected class based on a physical disability under FEHA (Complaint, ¶¶ 12, 13), that she performed competently in her position (Complaint, ¶¶ 12, 14), that she suffered an adverse employment action (Complaint, ¶¶ 10, 12), and that another circumstance suggests discriminatory motive (Complaint, ¶¶ 12, 15).  G&M argues that White’s injuries do not relegate her to the status of having a physical disability as defined by Cal. Govt. Code § 12926(m)(1-6). (Demurrer, MPA, p. 6:23-25; Complaint, ¶ 2.) G&M argue further that White does not allege that her injures “were so severe that it limited Plaintiff’s ability to participate in major life activities” and that “the nature of her injuries are analogous to those of Keshe where Plaintiffs injuries resulting from an altercation with a customer did not affect plaintiff’s ability to perform his job duties.” (Demurrer, MPA, p. 6:25—7:5; Keshe v. CVS Pharm., Inc. (C.D.Cal. Apr. 5, 2016, No. 2:14-cv-08418-CAS(MANx)) 2016 U.S.Dist.LEXIS 46782.)

G&M’s arguments about the nature and severity White’s injuries are beyond the scope of a demurrer. Because White adequately alleges a cause of action for employee discrimination based on physical disability under FEHA, G&M’s demurrer is overruled.

2.           Second Cause of Action for Failure to Reasonably Accommodate Physical Disability (Cal. Govt. Code § 12900, et seq.)

“Under section 12940, subdivision (m), an employer must provide a reasonable accommodation for the known physical or mental disability of an applicant or employee. An employer's duty to reasonably accommodate an employee's disability is not triggered until the employer knows of the disability. Generally, the employee bears the burden of giving the employer notice of the disability. An employer, in other words, has no affirmative duty to investigate whether an employee's illness might qualify as a disability. The employee can't expect the employer to read his mind and know he secretly wanted a particular accommodation and sue the employer for not providing it. Nor is an employer ordinarily liable for failing to accommodate a disability of which it had no knowledge. An employer knows an employee has a disability when the employee tells the employer about his condition, or when the employer otherwise becomes aware of the condition, such as through a third party or by observation. For example, in Faust, the Court of Appeal held that the employer was on notice of the plaintiff's disability when a chiropractor wrote to the employer and stated that the plaintiff was unable to perform regular job duties and recommended that the plaintiff remain off work.” (Featherstone v. Southern California Permanente Medical Group (2017) 10 Cal.App.5th 1150, 1166–1167 [cleaned up].)

G&M argues that “[i]t cannot be reasonably inferred nor does Plaintiff any allegation [sic] that Defendant should have known that Plaintiff’s injuries amounted to a disability or caused any physical limitations necessitating an accommodation. As such, Defendant had no legal obligation to take positive steps to accommodate Plaintiff.” (Demurrer, MPA, p. 7:27—8:3.) White alleges injuries to her mouth and face following her March 21, 2020 attack by a customer, a March 23, 2020 workers compensation doctor visit where White was taken off work until her next appointment by the physician, and an allegation that White presented G&M a doctor’s note to this effect. (Complaint, ¶¶ 8, 9.)

The Court finds that White adequately pleaded the elements of the Second Cause of Action for Failure to Reasonably Accommodate Physical Disability.  The demurrer to the second cause of action is overruled.

3.           Third Cause of Action for Failure to Engage in a Timely, Good Faith, Interactive Process with Employee with a Physical Disability (Cal. Govt. Code § 12900, et seq.)

“Both the employer and the employee are responsible for participating in the interactive process. Typically, the employee must initiate the process unless the disability and resulting limitations are obvious. ‘Where the disability, resulting limitations, and necessary reasonable accommodations, are not open, obvious, and apparent to the employer, ... the initial burden rests primarily upon the employee ... to specifically identify the disability and resulting limitations, and to suggest the reasonable accommodations.” (Featherstone, 10 Cal.App.5th at 1169 [cleaned up].) An employer may not be subjected to liability for failure to engage the interactive process “where the employee was reasonably accommodated.” (Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 229.) “A term of leave from work can be a reasonable accommodation under FEHA, and, therefore, a request for leave can be considered to be a request for accommodation under FEHA.” (Moore v. Regents of University of California (2016) 248 Cal.App.4th 216, 243 [cleaned up]; see also Hanson, 74 Cal.App.4th at 226.)

G&M notes that White’s Complaint “lacks any allegations that she requested an accommodation or that her facial injuries caused any limitation, such that she needed an accommodation and requested such accommodations from Defendant. Nor does Plaintiff’s Complaint allege any underlying facts that Defendant should have known that Plaintiff’s injuries caused a limitation.” (Demurrer, MPA, p. 8:21-25.) Plaintiff’s complaint alleges that G&M had knowledge that White suffered injuries sufficient to prompt the workers compensation doctor to take White off work until her next appointment. (Complaint, ¶ 9.) Further, White dates the adverse employment action as having occurred two days after the workers compensation doctor wrote a note prescribing relief from work duties.

G&M does not get a pass from engaging in the interactive process simply because it immediately terminated plaintiff.  The demurrer to the third cause of action is overruled.

4.           Fourth Cause of Action for Retaliation (Cal. Govt. Code § 12900, et seq.)

“California's FEHA makes it unlawful for an employer to “discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part.” Cal. Gov't Code § 12940(h). To assert a prima facie claim for retaliation under FEHA, Plaintiff must plead that: (1) she engaged in “protected activity,” (2) the employer subjected her to an “adverse employment action,” and (3) there is a “causal link” between the protected activity and the employer's action.” (Hicks v. Netflix, Inc. (C.D. Cal. 2020) 472 F.Supp.3d 763, 771.) Protected activities include filing a complaint, testifying, or assisting in any proceeding under Cal. Gov't Code § 12940(h). (Government Code § 12940(h).)

White alleges that she engaged in protected activity (Complaint, ¶¶ 8-11, 39, 40), that G&M subjected her to an adverse employment action (Complaint, ¶ 10), and that a causal link exists between the protected activity and the employment action (Complaint, ¶¶ 39, 40, 42). The Court finds that White adequately pleads her Fourth Cause of Action.

The demurrer to the fourth cause of action is overruled.

5.           Fifth Cause of Action for Wrongful Termination (Cal. Govt. Code § 12900, et seq.), and Sixth Cause of Action for Wrongful Termination in Violation of Public Policy

To support a common law wrongful discharge claim, the public policy must be: (1) delineated in either constitutional or statutory provisions; (2) “public” in the sense that it inures to the benefit of the public rather than serving merely the interests of the individual; (3) well established at the time of the discharge; and (4) substantial and fundamental. (Mendoza v. Western Medical Center Santa Ana (2014) 222 Cal.App.4th 1334, 1338 [cleaned up].) “The elements of [plaintiff's] common law disability termination claim are the same as those of his FEHA claim. The wrongful termination claim is, after all, based on the FEHA's prohibition of physical disability discrimination.” (Arteaga v. Brink's, Inc. (2008) 163 Cal.App.4th 327, 355.)

G&M suggests that deficiencies in White’s previous causes of action render White’s wrongful termination claims inoperative. (Demurrer, MPA, p. 9:26—10:5, citing Stevenson v. Superior Court (1997) 16 Cal.4th 880, 903.) The Court found White’s previous causes of action sufficiently pled, so G&M’s demurrer to the Fifth and Sixth Causes of Action are overruled.

III.     CONCLUSION

Defendant G&M Oil Company, Inc.’s Demurrer to the First, Second, Third, Fourth, Fifth, and Sixth Causes of Action in Plaintiff Juneshia White’s Complaint are all OVERRULED.