Judge: Michael Shultz, Case: 24STCV25323, Date: 2025-01-21 Tentative Ruling

Case Number: 24STCV25323    Hearing Date: January 21, 2025    Dept: 40

24STCV25323 David Klasfeld v. People for the Ethical Treatment of Animals, Inc.

Tuesday, January 21, 2025

 

[TENTATIVE] ORDER OVERRULING DEMURRER TO PLAINTIFF’S COMPLAINT

 

I.        BACKGROUND

       The court grants Defendant’s request for judicial notice of Plaintiff’s complaint filed on October 1, 2024. The complaint alleges that Defendant employed Plaintiff as a media buyer. Plaintiff suffered from a mental health condition for which his physician placed plaintiff on medical leave. Defendant allegedly approved of the medical leave. Defendant notified Plaintiff five months later that Plaintiff’s position was being eliminated and that his employment would be terminated while on medical leave. Plaintiff alleges five causes of action for violation of the Fair Employment and Housing Act (“FEHA”) and a sixth cause of action for wrongful termination in violation of public policy.

       Defendant demurs to all claims mostly on grounds of uncertainty and because Plaintiff’s claims are duplicative. Plaintiff contends the allegations are sufficiently alleged with facts to support the claims.  

II.      LEGAL STANDARDS

       A demurrer tests the sufficiency of a complaint as a matter of law and raises only questions of law. (Schmidt v. Foundation Health (1995) 35 Cal.App.4th 1702, 1706.) In testing the complaint’s sufficiency, the court must assume the truth of the properly pleaded factual allegations as well as facts that can be reasonably inferred from those expressly pleaded facts. The court may also consider matters properly subject to judicial notice. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

       The court may not consider contentions, deductions, or conclusions of fact or law. (Moore v. Conliffe (1994) 7 Cal.4th 634, 638.) Plaintiff is required to allege facts sufficient to establish every element of each cause of action. (Rakestraw v. California Physicians Service (2000) 81 Cal.App.4th 39, 43.) Where the complaint fails to state facts sufficient to constitute a cause of action, courts should sustain the demurrer. (Code Civ. Proc., § 430.10(e); Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126.)

       Sufficient facts are the essential facts of the case stated "with reasonable precision and with particularity that is sufficiently specific to acquaint the defendant with the nature, source, and extent of his cause of action.” (Gressley v. Williams (1961) 193 Cal.App.2d 636, 643-644.)  Whether the Plaintiff will be able to prove the pleaded facts is irrelevant. (Stevens v. Superior Court (1986) 180 Cal.App.3d 605, 609–610.)

III.    DISCUSSION

A.      The disability discrimination claim under FEHA is not duplicative of the claim for wrongful termination

      A claim for disability discrimination in violation of FEHA, requires a showing that the plaintiff “(1) suffered from a disability, or was regarded as suffering from a disability; (2) could perform the essential duties of the job with or without reasonable accommodations, and (3) was subjected to an adverse employment action because of the disability or perceived disability." (Gov. Code, § 12940 subd. (a); Sandell v. Taylor-Listug, Inc. (2010) 188 Cal.App.4th 297, 310.)

       A tort claim for wrongful discharge requires a showing that the employer violated a public policy that is substantial, fundamental, and grounded in statute or constitutional provision. (Holmes v. General Dynamics Corp. (1993) 17 Cal.App.4th 1418, 1426.) The elements of this  claim are (1) an employer-employee relationship, (2) the employer terminated the plaintiff's employment, (3) the termination was substantially motivated by a violation of public policy, and (4) the discharge caused the plaintiff harm.) (Nosal-Tabor v. Sharp Chula Vista Medical Center (2015) 239 Cal.App.4th 1224, 1234–1235.)

       These are separate claims. Defendant relies on Rodrigues v. Campbell Industries (1978) 87 Cal.App.3d 494 which found no abuse of discretion where a trial court sustained demurrer without leave to amend where one cause of action contained the same allegations supporting other claims and added nothing to the complaint “by way of fact or theory of recovery.” (Rodrigues v. Campbell at 501.)  That case is not applicable here where Plaintiff is alleging conduct in violation of separate sections of FEHA.

       FEHA claims are not Plaintiff’s exclusive remedy, rather Plaintiff is “entitled to seek relief for injuries arising from discrimination in employment under any state law, without limitation."

(Rojo v. Kliger (1990) 52 Cal.3d 65, 82, [“While the FEHA conferred certain new rights and created new remedies, its purpose was not to narrow, but to expand the rights and remedies available to victims of discrimination.”].) A wrongful termination claim is grounded in the common law. A FEHA violation for disability discrimination can support the “public policy” element necessary to support the wrongful termination claim. (Angell v. Peterson Tractor, Inc. (1994) 21 Cal.App.4th 981, 987.)  

       Defendant contends that FEHA discrimination claims cannot “coexist” with wrongful discharge for violation of a public policy articulated by FEHA. (Dem. 3:27-4:1.) Defendant’s case authority states the opposite. It states that “FEHA's provisions prohibiting discrimination may provide the policy basis for a claim for wrongful discharge in violation of public policy.” (Phillips v. St. Mary Regional Medical Center (2002) 96 Cal.App.4th 218, 227.) Phillips determined that there are exceptions to that rule; a plaintiff cannot assert a wrongful discharge claim based on a violation of FEHA where the employer was statutorily exempted from liability for example, because the employer does not have five or more employees, or as in Phillips, where the employer was a nonprofit religious corporation, which expressly falls outside the definition of an “employer.” (Phillips at 228; Gov. Code, § 12926 subd. (d).) Phillips is factually distinguishable.

       Defendant’s reliance on Roby v. McKesson Corp. (2009) 47 Cal.4th 686 is misplaced.  In Roby, two FEHA claims, and the wrongful discharge claim arose in part from employee’s termination, “and therefore, the damages necessarily overlapped.” (Roby at 686.) At this stage of the proceedings, the court is not concerned with whether Plaintiff’s ultimate recovery will overlap; that issue does not affect the sufficiency of Plaintiff’s claims.

 

B.      The FEHA disability discrimination claim is adequately alleged.  

       Defendant argues that Plaintiff did not allege any direct evidence of disability discrimination, that there are no facts to support discriminatory animus, and that there is no insight into what Plaintiff’s condition was which deprives Defendant of the opportunity to determine appropriate defenses.

       In opposition, Plaintiff argues that the allegations are sufficient and unambiguous.

       Contrary to Defendant’s argument, general rules of pleading do not require that the plaintiff plead evidentiary facts supporting the allegation of ultimate fact. (Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1390, [“It is both improper and insufficient for a plaintiff to simply plead the evidence by which he hopes to prove such ultimate facts."].)

       The elements of this claim may be established by inference or by circumstantial evidence. (Sandell v. Taylor-Listug, Inc. (2010) 188 Cal.App.4th 297, 310, [“Generally an employee need only offer sufficient circumstantial evidence to give rise to a reasonable inference of discrimination.”], [italics in original].) Here, the alleged facts are sufficient to infer discrimination. Plaintiff alleges that while he was on medical leave for a mental health condition, Defendant eliminated his position and terminated his employment. (Complaint, ¶ 12, 15.) Plaintiff alleges that two weeks prior to his termination and the day after it, Plaintiff saw advertisements for his position with a slightly different title. (Complaint, ¶ 15.)

       The element requiring that Plaintiff could do his job with or without accommodation is supported by the allegation that Defendant hired Plaintiff as a Media Buyer and later promoted him to Manager of Advertising Operations around June of 2023. (Complaint, ¶ 11.) Plaintiff’s duties included overseeing and strategizing the planning of thought-provoking advertisements. (Id.) Plaintiff earned an annual salary of $65,000 and typically worked forty (40) hours per week. Plaintiff earned an honorary award from PETA for founding the first vegan and cruelty free cosmetics company in 2004. (Id.)

       Despite these accomplishments, Plaintiff alleges he was terminated while on medical leave for a mental health condition. (Complaint, ¶ 15.) All elements are adequately supported.

 

C.      Demurrer to the claim for failure to engage in a good faith interactive process is OVERRULED.

       An employer is liable for failure to engage in a timely, good faith, interactive process with the employee to determine effective, reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee with a known disability or condition. (Gov. Code, § 12940 subd. (n).) This is a separate cause of action as it is a separate unlawful practice. (Swanson v. Morongo Unified School Dist. (2014) 232 Cal.App.4th 954, 964.)

       The complaint supports this claim. Plaintiff alleges he requested medical leave as recommended by his doctor. (Complaint, ¶ 12.) Defendant allegedly approved of the leave up to a point. While Plaintiff’s doctor extended his medical leave to September 22, 2024, and Defendant approved it, on July 30, 2024, Defendant notified Plaintiff he was being terminated without further accommodation and without any engagement in a timely, good faith, interactive process despite their knowledge of Plaintiff’s mental condition, causing losses in earnings and benefits among other damage.  (Complaint, ¶¶ 15, 32, 34-35.)

       Defendant’s argument relies on some alleged facts while ignoring others in an attempt to create ambiguity where there is none. (Dem. 5:2-14.) When assessing the adequacy of a complaint, the court reads the complaint as a whole. (Nede Mgmt., Inc. v. Aspen American Ins. Co. (2021) 68 Cal.App.5th 1121.)

       Defendant contends that Plaintiff did not provide any useful factual allegations from which Defendant can base a defense and “sows confusion” by failing to state how Defendant failed to so engage. (Dem. 12:16-19.) Again, Plaintiff is not obligated to plead evidentiary facts.  The allegations taken as a whole support the claim.

D.     Demurrer to the claim for failure to provide reasonable accommodation  is OVERRULED.

       FEHA imposes an affirmative obligation on the employer to reasonably accommodate a known disability of an employee. (Gov. Code, § 12940 subd. (m).)

       Defendant contends it cannot make out what Plaintiff believes Defendant failed to provide. (Dem. 13:24-25.) That contention is not supported by the allegations of the complaint, and further, any uncertainty complained of here is a matter for discovery. Uncertainty exists where a complaint’s factual allegations are so confusing, they do not sufficiently apprise a defendant of the issues it is being asked to meet. (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2; Code Civ. Proc., § 430.10(f).)

       Demurrers for uncertainty are disfavored and are 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;  Lickiss v. Financial Industry Regulatory Authority (2012) 208 Cal.App.4th 1125, 1135.) Contrary to Defendant’s arguments, the complaint, reasonably construed, alleges that Defendant failed to accommodate the last extension of Plaintiff’s medical leave by eliminating his position and terminating Plaintiff’s employment. (Complaint, ¶ 15.)

E.      Demurrer to the claim for retaliation is OVERRULED.

       An employer is prohibited from retaliating against an employee who has opposed any discriminatory action or who has filed a complaint, testified, or assisted in a FEHA proceeding. (Gov. Code, § 12940 subd. (h).)  To establish a prima facie case of retaliation under the FEHA, the plaintiff must show “(1) he was engaged in a protected activity; (2) the employer subjected him to an adverse employment action; and (3) there was a causal link between the protected activity and the employer's action.” (Taylor v. City of Los Angeles Dept. of Water & Power (2006) 144 Cal.App.4th 1216, 1229.)

       The protected activity in which Plaintiff engaged was to request an accommodation because of his mental condition. FEHA prohibits discrimination based on an employee’s protected status, which includes a medical condition and mental disability. (Gov. Code, § 12940 subd. (a).)The claim is adequately alleged. Plaintiff requested accommodation for his mental disability, but Defendant failed to accommodate when Plaintiff requested an extension of that leave, and Defendant thereafter retaliated against Plaintiff by terminating Plaintiff’s employment. (Complaint, ¶ 15.)

       Defendant contends that the allegations are rendered uncertain because Plaintiff used “him/her” pronouns and because the allegations are “boilerplate”.  (Dem. 14:14-19.) The first contention is flatly without merit. If by “boilerplate,” Defendant argues that Plaintiff alleges ultimate facts, that is permitted. Defendant asserts Plaintiff is required to “state exactly what right was asserted that he believes led to the alleged retaliation,” and that Plaintiff doesn’t “narrow down any particular part of the entire section on FEHA.” (Dem. 14:25-26.) This argument is not supported by the allegations of the pleading taken as a whole, all as previously discussed.

F.       Demurrer to the claim for failure to prevent discrimination and retaliation is OVERRULED.

       The FEHA imposes liability against an employer who fails to take all reasonable steps necessary to prevent discrimination and harassment from occurring. (Gov. Code, § 12940 subd. (k).) Again, Defendant’s arguments here are contradicted by Plaintiff’s allegations. Plaintiff clearly alleged his “supposed disability,” described the manner in which he was discriminated against and how he was retaliated against. (Dem. 15:14-20.) The claim is not fatally ambiguous.

G.     The claim for wrongful termination in violation of public policy is adequately alleged.

       To reiterate, a tort claim for wrongful discharge requires a showing that the employer violated a public policy that is substantial, fundamental and grounded in statute or constitutional provision. (Holmes v. General Dynamics Corp. (1993) 17 Cal.App.4th 1418, 1426.) The elements of this  claim are (1) an employer-employee relationship, (2) the employer terminated the plaintiff's employment, (3) the termination was substantially motivated by a violation of public policy, and (4) the discharge caused the plaintiff harm.) (Nosal-Tabor v. Sharp Chula Vista Medical Center (2015) 239 Cal.App.4th 1224, 1234–1235.)

       As previously discussed in Part III.A., above, Plaintiff adequately alleges facts to support an inference that Defendant terminated him and violated his rights protected by FEHA by failing to accommodate his mental condition, failing to engage in the interactive process, and discriminating against him because of his mental condition by terminating him from employment. (Complaint, ¶ 15.) This claim is separate from the discrimination claim based on disability and is not duplicative of any other claim, all as previously discussed.

IV.    CONCLUSION

       Based on the foregoing, Defendant’s demurrer to all causes of action alleged in the complaint is OVERRULED. Defendant is ordered to file an answer within 30 days.