Judge: Michael P. Linfield, Case: 22STCV39360, Date: 2023-04-27 Tentative Ruling
Case Number: 22STCV39360 Hearing Date: April 27, 2023 Dept: 34
SUBJECT: Demurrer
Moving Party: Defendants
Laboratory Corporation of America and Amir Trust
Resp. Party: Simon Kheradmand
Defendants’ Demurrer is OVERRULED.
BACKGROUND:
On December
20, 2022, Plaintiff Simon Kheradmand filed her Complaint against Defendants
Laboratory Corporation of America and Amir Tavakoli on causes of action arising
from Plaintiff’s employment with and termination by Defendants.
On January
24, 2023, Plaintiff filed her First Amended Complaint. The listed causes of
action are:
(1) Discrimination based upon disability, pursuant
to Government Code section 12940, et seq.;
(2) Failure to accommodate, pursuant to Government
Code section 12940, subdivisions (k) and (m);
(3) Failure to engage in the interactive process,
pursuant to Government Code section 12926.1, subdivision (e);
(4) Harassment based upon disability, pursuant to
Government Code section 12940, et seq.;
(5) Retaliation, pursuant to Government Code
section 12940, et seq.;
(6) Failure to take all reasonable steps to
prevent discrimination, harassment, and retaliation, pursuant to Government
Code section 12940, et seq.; and
(7) Wrongful termination in violation of public
policy, pursuant to Government Code section 12940, et seq.
On March 30,
2023, Defendants Laboratory Corporation of America and Amir Trust
(“Defendants”) filed their Demurrer to the First Amended Complaint. In support
of their Demurrer, Defendants concurrently filed: (1) Declaration of Cassidy T.
Young; and (2) Proposed Order.
On April 14,
2023, Plaintiff filed her Opposition.
On April 20,
2023, Defendants filed their Reply.
ANALYSIS:
I.
Legal Standard
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.
Discussion
Defendants
solely demur to the fourth cause of action for harassment.
A. Legal Standard for Harassment
“It is an
unlawful employment practice . . . [f]or 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).)¿
¿¿¿¿¿¿
“A single
incident of harassing conduct is sufficient to create a triable issue regarding
the existence of a hostile work environment if the harassing conduct has
unreasonably interfered with the plaintiff’s work performance or created an
intimidating, hostile, or offensive working environment.” (Gov. Code, §¿12923,
subd. (b).)
¿
“The
existence of a hostile work environment depends upon the totality of the
circumstances and a discriminatory remark, even if not made directly in the
context of an employment decision or uttered by a nondecisionmaker, may be
relevant, circumstantial evidence of discrimination.” (Gov. Code, § 12923,
subd. (c).)
B. The Parties’ Arguments
Defendants
argue that this cause of action fails because: (1) Plaintiff has failed to allege
severe or pervasive harassment; and (2) Plaintiff’s allegations consist of
necessary management actions that are not actionable as harassment. (Demurrer,
pp. 3:11–12, 6:12–13.)
Plaintiff
opposes the Motion, arguing that the facts alleged in the pleading are
sufficient to state a claim. (Opposition, p. 4:4.)
Defendants
reiterate their arguments in their Reply.
C. Discussion
Here,
Plaintiff has alleged, among other things: (1) that in or about March 2022,
Plaintiff suffered a workplace injury and was diagnosed with carpal tunnel
syndrome; (2) that Plaintiff was qualified to perform the essential functions
of her job with reasonable accommodation; (3) that Plaintiff’s work schedule
was reduced and changed to include regular breaks to accommodate her; (4) that
Defendant Amir Tavakoli (a.k.a. Amir Trust) did not provide Plaintiff her
reasonable accommodations; (5) that Defendant Amir Tavakoli was angry, loud,
abusive, and insulting when Plaintiff tried to take her regular breaks; and (6)
that on October 7, 2022, Defendant Amir Tavakoli accused Plaintiff of violating
policy, screamed at Plaintiff, called Plaintiff names, and sent Plaintiff home
after engaging in those behaviors. (First Amended Complaint, ¶¶ 10, 12–14, 16,
23.)
A reasonable trier of fact could
determine that these allegations are severe and pervasive enough to constitute
actionable, disability-based harassment. Similarly, a reasonable trier of fact
could determine that these allegations were not necessary management actions.
Assuming as true these allegations
for the purposes of the Demurrer, they are sufficient to withstand demur.
III. Conclusion
Defendants’ Demurrer is OVERRULED.