Judge: Michael P. Linfield, Case: 22STCV20482, Date: 2022-10-19 Tentative Ruling
Case Number: 22STCV20482 Hearing Date: October 19, 2022 Dept: 34
SUBJECT: Demurrer
Moving Party: Defendants
Everport Terminal Services Inc. and Andrew Gonzales
Resp. Party: Plaintiff Francisco Miramontes
Defendants
Everport Terminal Services Inc.’s and Andrew Gonzales’ Demurrer is OVERRULED.
BACKGROUND:
On
June 23, 2022, Plaintiff Francisco Miramontes filed his Complaint against
Defendants Everport Terminal Services Inc. and Andrew Gonzales. The underlying
issue concerns Defendants’ alleged wrongful termination of Plaintiff. The
Complaint lists five causes of action, including harassment in violation of
Government Code section 12940, subdivision (j).
On
September 16, 2022, Defendants filed their Demurrer. The Demurrer is only as to
Plaintiff’s cause of action for harassment. Defendants concurrently filed their
Declaration regarding Meet and Confer, averring that a meet and confer occurred
via telephone.
On
October 5, 2022, Plaintiff filed his Opposition.
On
October 11, 2022, Defendants filed their Reply.
ANALYSIS:
I.
Legal Standard for a Demurrer
A. Demurrer
A demurrer is a pleading used to test the legal sufficiency of other
pleadings. 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; and for purpose of the ruling on
the demurrer, all facts pleaded in the complaint are assumed to be true,
however improbable they may be. (Code Civ. Proc., §§ 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 section 430.10 (grounds),
section 430.30 (as to any matter on its face or from which judicial notice may
be taken), and section 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 (Code of Civil Procedure section 430.10,
subdivision (f)), is disfavored and will only be sustained where the pleading
is so bad that defendant cannot reasonably respond—i.e., cannot reasonably
determine what issues must be admitted or denied, or what counts or claims are
directed against him/her. (Khoury v. Maly's of Calif., Inc. (1993) 14
Cal.App.4th 612, 616.) Moreover, even if the pleading is somewhat vague,
“ambiguities can be clarified under modern discovery procedures.” (Id.)
II.
Harassment
A.
Legal Standard
“It
is an unlawful employment practice, . . . For an employer…or 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 veteran or military status, to harass an employee, an
applicant, an unpaid intern or volunteer, or a person providing services
pursuant to a contract. Harassment of an employee…shall be unlawful if the
entity, or its agents or supervisors, knows or should have known of this
conduct and fails to take immediate and appropriate corrective action. … An
entity shall take all reasonable steps to prevent harassment from occurring. Loss
of tangible job benefits shall not be necessary in order to establish
harassment.” (Gov.
Code, § 12940, subd. (j)(1–4).)
B. Discussion
Defendants argue that Plaintiff fails to allege facts constituting
actionable harassment because: (1) the allegedly harassing conduct constitutes
personnel management action; (2) Plaintiff has not alleged membership in any
protected class; and (3) the conduct alleged by Plaintiff is not severe or
pervasive. Defendants also argue that Plaintiff fails to state a cause of
action for harassment against Defendant Everport Terminal Services Inc.
Plaintiff argues: (1) that personnel decisions and managerial acts can
form the basis of a harassment claim; (2) that Plaintiff has alleged that he is
a member of a protected class; and (3) that the Complaint alleges a pattern of
harassment. Plaintiff argues in the alternative that Plaintiff should be
granted leave to amend the Complaint.
Defendants reiterate their arguments in
their Reply, further specifying: (1) that the vast majority of the allegedly
harassing conduct pre-dates Plaintiff’s taking of baby-bonding leave; and (2)
that Plaintiff’s reliance on Roby v.
McKesson Corp. (2009) 47 Cal.4th 686 is misplaced.
The Court disagrees with many of
Defendant’s arguments about the law. “Harassment because of sex
includes…harassment based on pregnancy….” (Gov. Code, § 12940, subd.
(j)(4)(C).) This concept is reiterated in the statutory definition of sex.
(Gov. Code, § 12926, subd. (r)(1)(A).) Individuals fall under the statutory
ambit where there is “a perception that the person has any of those
characteristics or that the person is associated with a person who has, or is
perceived to have, any of those characteristics.” (Gov. Code, § 12926, subd.
(o).) Moreover, “[a]n employee of an entity subject to this subdivision
is personally liable for any harassment prohibited by this section that is
perpetrated by the employee, regardless of whether the employer or covered
entity knows or should have known of the conduct and fails to take immediate
and appropriate corrective action.” (Gov. Code, § 12940, subd. (j)(3).)
“Harassment of an employee…shall be unlawful if the entity, or its agents or
supervisors, knows or should have known of this conduct and fails to take
immediate and appropriate corrective action.” (Gov. Code, § 12940, subd.
(j)(1).)
Thus, counter to Defendant’s arguments, it is possible for Plaintiff to
allege facts that would be sufficient for the propositions that: (1) Plaintiff
was sexually harassed because of sex; (2) that such sexual harassment was
because of Plaintiff’s association with his wife, who had a child that
Plaintiff took time off to bond with; (3) that Defendant Andrew Gonzales could
be liable for such harassment; and (4) that Defendant Everport Terminal
Services Inc. could be liable for such harassment.
The only remaining question is whether Plaintiff has sufficiently
pleaded such facts.
Among other facts, Plaintiff alleges:
(1) that “[d]uring the months of June, July, and August of 2021, after
[Plaintiff’s] wife gave birth to their child, he opted to take a protected
leave for baby bonding”; (2) that Plaintiff “returned to work from his protected
leave on September 1, 2021” and that “[p]rior to his paternity leave he had
been working the night shift from 4:00 p.m. to 3:00 a.m.”, which was “best for
his childcare situation”; (3) that “[o]n his second day back to work,
[Plaintiff] was abruptly advised that [Defendant Everport Terminal Services
Inc.] had made the unilateral decision to change his shift” to the day shift
and that “[t]his change in schedule would cause an extreme hardship”; (4) that
Plaintiff “first advised middle management of this hardship and was
stonewalled; and (5) that after Plaintiff transitioned to the day shift, “he
was met with further hostility and targeting when [Defendant Gonzales] assigned
an assistant manager…to accompany and monitor [Plaintiff] at all times during
his shift.” (Compl., ¶¶ 24–28.) No prior incidents discussed in the
Complaint, which would have occurred nearly two years before the allegations
discussed immediately above, explain why Defendants took these actions.
Assuming, as we must, that the allegations in the Complaint are true,
the Court finds: (1) that Defendants acted in a way that punished Plaintiff;
(2) that Defendants’ actions altered Plaintiff’s working conditions as to make
it more difficult to do the job; (3) that Defendants’ actions sent a message to
Plaintiff related to taking time off; (4) that Defendants’ act of changing
Plaintiff’s hours was severe; (5) that Defendants’ act of assigning a daily
monitor on Plaintiff was pervasive; (6) that this conduct was harassing and
unreasonably interested with Plaintiff’s work performance; (7) that this
conduct created an intimidating, hostile, or offensive working environment; and
(8) that Defendants’ actions were both objectively and subjectively offensive.
The
Court concludes that Defendant has pleaded sufficient facts to sustain a cause
of action of harassment. (Gov. Code, § 12923, subds. (a)–(c);
Hughes v. Pair (2009) 46 Cal.4th 1035, 1038;
Lyle v. Warner Bros. Television
Prods. (2006) 38 Cal.4th 264, 284.)
C. Conclusion
Defendants
Everport Terminal Services Inc.’s and Andrew Gonzales’ Demurrer is OVERRULED.