Judge: Michael Small, Case: 24STCV25261, Date: 2025-01-23 Tentative Ruling

Case Number: 24STCV25261    Hearing Date: January 23, 2025    Dept: 57

In this employment action, Plaintiff Jorge Reyes (“Plaintiff”) sued Defendant Flying Food Group for allegedly discriminating and retaliating against him in violation of the Fair Employment and Housing and Act (“FEHA”) and the Labor Code and for allegedly wrongfully terminating him in violation of public policy.  Pending before the Court is Defendant’s demurrer to Plaintiff’s complaint.  Defendant demurs to every one of the nine causes of action in the complaint.  The Court’s tentative decision is to sustain he demurrer in its entirety, albeit with leave to amend.  Plaintiff is directed to file and serve a First Amended Complaint by February 20, 2025.   The case management conference that is scheduled for March 18, 2025 will be moved to a different date at the demurrer hearing.

1.    First Through Fifth Causes of Action: FEHA Claims

 Defendant contends in the demurrer that Plaintiff’s complaint fails to allege facts that support Plaintiff’s claims for discrimination, retaliation, harassment, and failure to prevent harassment and discrimination in violation of FEHA.  The Court agrees.

 To state a prima facie case for discrimination in violation of FEHA, an employee must show (1) membership in a protected class; (2) competent performance in the position held; (3) they suffered an adverse employment action; and (4) some other circumstance suggests discriminatory motive. (Ortiz v. Dameron Hospital Association (2019) 37 Cal.App.5th 568, 577.)

To state a cause of action for harassment under FEHA, a plaintiff must show that he or she (1) was a member of a protected class; (2) was subjected to unwelcome harassment; (3) the harassment was based on his protected status; (4) the harassment unreasonably interfered with his work performance by creating an intimidating, hostile or offensive work environment; and (5) the defendant is liable for the harassment. (Ortiz v. Dameron Hospital Assn. (2019) 37 Cal.App.5th 568, 581.)

 An actionable claim for failure to prevent discrimination or harassment is dependent on a claim of actual discrimination or harassment. (Martin v. Board of Trustees of California State University (2023) 97 Cal.App.5th 149, 173.)

 To state a claim for retaliation in violation of FEHA (Government Code Section 12940, subdivision (h), the plaintiff must allege: “(1) the employee's engagement in a protected activity ...; (2) retaliatory animus on the part of the employer; (3) an adverse action by the employer; (4) a causal link between the retaliatory animus and the adverse action; (5) damages; and (6) causation.” (Brown v. Los Angeles Unified School District (2021) 60 Cal.App.5th 1092, 1105.) Protected activity includes opposing practices forbidden under FEHA or filing a complaint, testifying, or assisting in a proceeding under FEHA. (Gov. Code, § 12940, subdivision (h).)

  In the Court’s view, the Plaintiff has not alleged facts that can support any of his FEHA causes of action.  The Complaint states in a conclusory manner that “Defendants subjected Plaintiff to discrimination/harassment/retaliation on the basis of race, color, national origin, ancestry, opposition to discrimination/harassment/retaliation, opposition/refusal to perform/disclosure of violation of the law…” (Complaint, ¶ 6.) However, these allegations do not contain the specific facts necessary to state a cause of action for violation of FEHA.  Plaintiff does not identify that he is a member of a protected class—Plaintiff makes no allegations as to his personal characteristics that may be protected under the FEHA, such as, inter alia, his race, religion, national origin, sex, gender.  He also does not allege he engaged in any specific protected activity. Without allegations of Plaintiff’s specific opposition to the discrimination, harassment, or retaliation, or his opposition or refusal to perform or his disclosure of violation of the law, Defendant is not on sufficient notice of the claim to produce discovery or further investigate the events that gave rise to Plaintiff’s claim. Indeed, Plaintiff does not even allege he was employed by Defendant.

  Furthermore, Plaintiff fails to allege facts showing discriminatory or retaliatory animus and a causal link between that animus and an adverse employment action. Though Plaintiff alleges that Defendant subjected him to discrimination/harassment/retaliation (Complaint, ¶ 6), and offensive comments, stereotypes, tropes, yelling, among other behaviors (Complaint, ¶ 7), Plaintiff does not plead facts that evince Defendant’s discriminatory or retaliatory animus toward members of an alleged protected class.  Plaintiff simply states that Defendant engaged in these behaviors “on the bases of race, color, national origin, and so on. Plaintiff does not provide any occurrences or specific statements or actions which could give rise to an inference of discriminatory or retaliatory animus.

2.    Sixth Through Eighth Causes of Action: Labor Code Claims

Defendant argues that Plaintiff fails to allege facts to support his claims under Labor Code Sections 98.6, 1102.5, and 6310.  The Court agrees.

  The Complaint alleges that “Defendants’ actions constitute retaliation in violation of Labor Code s. 98.6.” (Complaint, ¶ 37.) Labor Code Section 98.6 sets forth that an employer “shall not discharge an employee or in any manner discriminate, retaliate, or take any adverse action against any employee or applicant for employment because the employee or applicant engaged in any conduct delineated in this chapter,” which includes exercising rights under the Labor code, such as filing a complaint with the Labor Commissioner, testifying, or cooperating with an investigation under the Labor Code. (Lab. Code, § 98.6, subd. (a).) Plaintiff does not allege he exercised any rights under the Labor Code. Plaintiff also does not allege that Defendant retaliated against him for exercising rights under the Labor Code.

The Complaint alleges that “Defendants’ actions constitute retaliation in violation of Labor Code s. 1102.5.” (Complaint, ¶ 42.) Labor Code section 1102.5 sets forth that an employer shall not retaliate against an employee for disclosing information to a government or law enforcement agency, or another who has the authority to investigate, discovery, or correct the violation or noncompliance, or for providing information tom or testifying before any public body conducting an investigation, hearing, or inquiry. (Lab. Code, § 1102.5, subd. (b).) An employer shall not retaliate against an employee for refusing to participate in an activity that would result in a violation of federal or state laws or regulations. (Id., subd. (c).) Plaintiff does not allege that he reported a violation of federal or state law or regulations, nor that he refused to participate in an activity that would violate federal or state law or regulations. He also does not allege that Defendant took an adverse action against him in response to his report, complaint, or refusal to participate.

 The Complaint alleges that “Defendants’ actions constitute retaliation in violation of Labor Code s. 6310.” (Complaint, ¶ 47.) Labor Code section 6310 states that an employer shall not discharge or in any manner discriminate against any employee because the employee made an oral or written complaint to the Division of Occupational Safety and Health or other governmental agency, instituted or cause any proceeding under or relating to their rights, testified or is about to testify in the proceeding, participated in an occupational health and safety committee, reported a work-related fatality, injury, or illness, and requested access to occupational injury or illness reports and records.  (Lab. Code, § 6310, subd. (a).) Plaintiff does not allege that he engaged in any of these activities: simply put, it fails to state that Plaintiff complained of a safety violation.

3.    Ninth Cause of Action: Wrongful Termination in Violation of Public Policy

 "The elements of a claim for wrongful discharge in violation of public policy 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.” (Yau v. Santa Margarita Ford, Inc. (2014) 229 Cal.App.4th 144, 154.)  As discussed above, Plaintiff does not even allege he was an employee of Defendant. Furthermore, Plaintiff does not plead any facts from which motivation behind his termination may be inferred.