Judge Michelle C. Kim, Case Number: 23STCV18372, Date: 2024-04-03 Tentative Ruling

CASE: Robert Galindo v. APL Logistics Warehouse Management Services, Inc., et al.

MOVING PARTY: Defendants APL Logistics Warehouse Management Services, Inc., et al.

This is a Fair Employment and Housing Act (FEHA) action. On August 3, 2023, Plaintiff Robert Galindo (“Plaintiff” or “Galindo”), filed a Complaint against Defendants, APL Logistics Warehouse Management Services, Inc. (“APL”), Dan Bourcier (“Bourcier”), and Cleo Chacon (“Chacon”). On September 26, 2023, Plaintiff filed the operative First Amended Complaint (FAC), alleging causes of action for:

As alleged in the FAC, Galindo was hired by APL as a General Manager. During his employment with APL, Galindo suffered a non-work related injury which required surgeries, doctor’s visits and work restrictions requiring him to stay off his foot. In observance of his doctor’s medical advice, Galindo used a knee scooter at work. As a result of his injury and use of the scooter, Chacon, a Regional HR, and Bourcier, Plaintiff’s supervisor, harassed Plaintiff. Galindo additionally alleges that Chacon committed a safety violation by wearing open-toe shoes on the floor and complained of the same to Senior HR. A little over a month later, Galindo was wrongfully terminated. Throughout his employment with APL, Galindo received good reviews and had no prior discipline.

On October 30, 2023, Defendants filed this Demurrer to the First, Third, Fourth, Fifth, Sixth, and Tenth Causes of Action in the FAC.

A demurrer tests the legal sufficiency of the pleadings and will be sustained only where the pleading is defective on its face.¿ (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.)¿ “We treat the demurrer as admitting all material facts properly pleaded but not contentions, deductions or conclusions of fact or law.¿ We accept the factual allegations of the complaint as true and also consider matters which may be judicially noticed.¿ [Citation.]”¿ (Mitchell v. California Department of Public Health (2016) 1 Cal.App.5th 1000, 1007; Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604 [“the facts alleged in the pleading are deemed to be true, however improbable they may be”].) Allegations are to be liberally construed.¿ (Code Civ. Proc., § 452.)¿ In construing the allegations, the court is to give effect to specific factual allegations that may modify or limit inconsistent general or conclusory allegations.¿ (Financial Corporation of America v. Wilburn (1987) 189 Cal.App.3d 764, 769.)¿¿If the cause of action is based in statute, the facts supporting each statutory requirement must be specifically pled. (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 604 (Fisher).)

A demurrer may be brought if insufficient facts are stated to support the cause of action asserted.¿(Code Civ. Proc., § 430.10, subd. (e).) “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.)¿¿¿

Where the complaint contains substantial factual allegations sufficiently apprising defendant of the issues it is being asked to meet, a demurrer for uncertainty will be overruled or plaintiff will be given leave to amend.¿ (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.)¿ Leave to amend must be allowed where there is a reasonable possibility of successful amendment.¿ (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.)¿ The burden is on the complainant to show the Court that a pleading can be amended successfully. (Ibid.)¿

“Before filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person, by telephone, or by video conference with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.”¿ (Code Civ. Proc., § 430.41, subd. (a).)¿ Defense counsel has complied with the meet and confer requirement. (See Declaration of Briana Labriola, ¶¶ 2-4.)

Defendants demur to the First, Third, Fourth, Fifth, Sixth, and Tenth Causes. The court addresses each cause of action in turn.

The parties agree that the First Cause of Action is based on the allegations that Plaintiff was terminated on September 9, 2022 in retaliation for complaining to Senior HR on August 2, 2022 about Chacon’s safety violation of a company policy which required her to wear closed-toed shoes when on the floor. (FAC, ¶¶ 31, 32, 34.)

Labor Code section 1102.5, subdivision (b) provides, “[a]n employer, or any person acting on behalf of the employer, shall not retaliate against an employee for disclosing information, or because the employer believes that the employee disclosed or may disclose information, to a government or law enforcement agency, to a person with authority over the employee or another employee who has the authority to investigate, discover, or correct the violation or noncompliance, or for providing information to, or testifying before, any public body conducting an investigation, hearing, or inquiry, if the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation, regardless of whether disclosing the information is part of the employee's job duties.” (Lab. Code, § 1102.5, subd. (b).) Labor Code section 1102.5, subdivision (b), “requires only that an employee disclose information and that the employee reasonably believe the information discloses unlawful activity. (Lab. Code, § 1102.5, subd. (b).)” (Ross v. Cnty. of Riverside (2019) 36 Cal.App.5th 580, 593.) “To have a reasonably based suspicion of illegal activity, the employee must be able to point to some legal foundation for his suspicion—some statute, rule or regulation which may have been violated by the conduct he disclosed. [Citation.]” (Id. at p. 592 citing Fitzgerald v. El Dorado County (E.D. Cal. 2015) 94 F.Supp.3d 1155, 1172.)

Defendants argue the First Cause of Action is uncertain because the FAC merely alleges a violation of a company policy; it does not allege sufficient facts to show Galindo had a reasonable belief Chacon violated a state or federal statute, or violated a state or federal rule or regulation. The court agrees. The FAC does not point to any statute, rule, or regulation which may have been violated by Chacon. By extension, the FAC does not allege that Galindo had a reasonable belief that a state or federal statute, rule, or regulation had been violated.

Citing Ross, Plaintiff contends a cause of action based on a violation of Labor Code section 1102.5 requires only that he have a reasonable belief that illegal activity occurred. However, Galindo overlooks the language in Ross which states: “To have a reasonably based suspicion of illegal activity, the employee must be able to point to some legal foundation for his suspicion—some statute, rule or regulation which may have been violated by the conduct he disclosed. [Citation.]” (Ross, at p. 592.) Here, the FAC does not identify any state, rule or regulation.

To establish a claim for discrimination in violation of FEHA, the plaintiff must generally prove that (1) he or she was a member of a protected class; (2) that he or she was qualified for the position he or she sought or was performing competently in the position he or she held; (3) that he or she suffered an adverse employment action, such as termination, demotion, or denial of an available job; and (4)¿some other circumstance suggesting¿discriminatory motive. (See¿Guz v. Bechtel National, Inc.¿(2000) 24 Cal.4th 317, 355; see also CACI No. 2500.)¿¿

Before addressing the Third Cause of Action, the court makes the following observation. Plaintiff employs a “chain letter” or cumulative pleading practice, as well as a shotgun pleading practice. These practice is disfavored. (See Kelly v. General Telephone Co. (1982) 136 Cal.App.3d 278, 285 (stating that “chain letter” pleading should be avoided as it tends to cause ambiguity and creates redundancy); see also Sollberger v. Wachovia Securities, LLC (C.D. Cal. June 30, 2010) No. SACV 09–0766, 2010 WL 2674456 [“Shotgun pleadings are pleadings that overwhelm defendants with an unclear mass of allegations and make it difficult or impossible for defendants to make informed responses to the plaintiff's allegations. They are unacceptable....”].)

This pleading style proves problematic with respect to the Third Cause of Action. The Third Cause of Action addresses discrimination based on age, disability, and medical/family leave. (See FAC, ¶ 20.) The court, however, cannot tell from the allegations whether Plaintiff’s age, disability or taking of medical/family leave played any role in his termination. Rather, as alleged, Plaintiff was terminated roughly a month after reporting Chacon’s violation of company policy. A causal link must exists between Plaintiff’s termination and the violation report.^{^[2]}

To the extent the Third Cause of Action is based on age discrimination, the claim is deficient for the following additional reasons: there are no allegations (1) referring to Plaintiff’s age, (2) or showing that APL took any action or engaged in any conduct based on Plaintiff’s age. Indeed, there are no factual allegations even of Plaintiff’s age.

The Fourth Cause of Action is based on (1) Bourcier limiting Plaintiff’s remote work from home to two occasions (FAC, ¶ 25) and (2) Chacon’s dismissive response when Plaintiff sought her advice regarding how to handle his days off (FAC, ¶ 26).

“There are three elements to a failure to accommodate action: ‘(1) the plaintiff has a disability covered by the FEHA; (2) the plaintiff is a qualified individual (i.e., he or she can perform the essential functions of the position); and (3) the employer failed to reasonably accommodate the plaintiff’s disability.” (CACI No. 2541; Hernandez v. Rancho Santiago Cmty. College Dist. (2018) 22 Cal.App.5th 1187, 1193-1194.)

Defendants argue the Fourth Cause of Action does not sufficiently allege the third element: APL’s failure to reasonably accommodate Galindo’s disability. The court agrees. With respect to Bourcier’s remote work limitation, the FAC alleges: “Plaintiff would complain to Bourcier about his foot injury and requested to work from home as an accommodation. Bourcier only allowed Plaintiff to work from home on two occasions.” (FAC, ¶ 25.) On its face, this allegation does not describe the accommodation as unreasonable, nor does it state that Bourcier failed to accommodate Galindo. Rather, Bourcier appears to have approved Plaintiff’s request on two occasions. As to Chacon, the FAC alleges: “In or about May 2022, Plaintiff needed to take time off for surgery and doctor visits. Plaintiff asked for advice from Chacon on how to handle his days off and she responded, “You’re a general manager, you’ll figure it out.” (FAC, ¶ 26.) This allegation is uncertain. Galindo asked Chacon for advice regarding “how to handle his days off.” It is not clear what Plaintiff is trying to allege or how it relates to a need for accommodation.

FEHA requires employers to engage in a good faith interactive process to determine effective reasonable accommodations, if any, “in response to a request for reasonable accommodation by an employee . . . with a known physical or mental disability . . . .” (Gov. Code, § 12940, subd. (n); Raine v. City of Burbank (2006) 135 Cal.App.4th 1215, 1222.) To establish a claim for failure to engage in the interactive process, a plaintiff must show: (1) defendant was an employer; (2) plaintiff was defendant’s employee; (3) plaintiff was disabled; (4) plaintiff requested reasonable accommodation; (5) plaintiff was willing to participate in a timely good faith interactive process with plaintiff to determine whether a reasonable accommodation could be made; (6) defendant failed to participate in this process; (7) plaintiff was harmed; and (8) defendant’s failure to engage in a good-faith interactive process was a substantial factor in causing plaintiff’s harm. (CACI No. 2546.)¿¿

The basis for the Fifth Cause of Action is unclear. There are no allegations showing that APL denied Galindo’s request for a reasonable accommodation. Rather, as alleged, Bourcier twice allowed Plaintiff to work from home. Therefore, APL cannot be held liable when Plaintiff was offered an accommodation. (Wilson v. Cnty. of Orange (2009) 169 Cal.App.4th 1185, 1195.)

The Sixth Cause of Action encompasses harassment based on age, disability, and medical/family leave. (See FAC, ¶ 80.) It is premised on the following factual allegations: (1) Chacon asking Plaintiff a few times a week why he was using his knee scooter and expressing skepticism over Plaintiff’s injury (FAC, ¶¶ 22, 23), and (2) Bourcier becoming short tempered with Plaintiff after returning to work in May 2022 from medical leave and ignoring Plaintiff when being told about Plaintiff’s doctor’s appointments (FAC, ¶¶ 29, 30).

Government Code section 12940, subdivision (j)(1) provides the basis for FEHA claims for harassment: “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 . . .” A hostile work environment is a recognized form of harassment. To establish a hostile work environment, harassment must be so severe or pervasive as to alter the conditions of the victim’s employment and create an abusive working environment based on the protected characteristic. (See Hughes v. Pair (2009) 46 Cal.4th 1035, 1043.) Harassment must be of a repeated, routine, or generalized nature when the harassing conduct is not severe. (See Lyle v. Warner Bros. Television Productions (2006) 38 Cal.4th 264, 283.) Harassment that is occasional, isolated or sporadic is insufficient. (See id.) “Whether an environment is hostile or abusive can be determined only by looking at all the circumstances. [Citation.] These may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance. The effect on the employee’s psychological well being is, of course, relevant to determining whether the plaintiff actually found the environment abusive. But while psychological harm, like any other factor, may be taken into account, no single factor is required.” (Jones v. Dep’t of Corr. & Rehab. (2007) 152 Cal.App.4th 1367, 1378 [cleaned up].)

The Sixth Cause of Action is deficient. The FAC does not describe harassment that is so severe and pervasive as to alter Galindo’s employment. Additionally, there are no allegations to show the alleged conduct interfered with Galindo’s work performance.[3]

“A [California Family Rights Act (“CFRA”)] interference claim consists of the following elements: (1) the employee’s entitlement to CFRA leave rights; and (2) the employer’s interference with or denial of those rights.”¿ (Choochagi v. Barracuda Networks, Inc. (2020) 60 Cal.App.5th 444, 454.)

The basis of Plaintiff’s CFRA claim is uncertain. There are no factual allegations showing Plaintiff was entitled to CFRA leave. To the extent his CFRA claim is predicated upon taking medical leave for the foot injury, there are no allegations demonstrating that APL denied or interfered with Galindo’s right to take medical leave. Plaintiff does not provide any argument to the contrary.

The demurrer to the First, Third, Fourth, Fifth, Sixth, and Tenth Causes of Action is SUSTAINED. Leave to amend is GRANTED.

Plaintiff is ordered to serve and file his Second Amended Complaint within 30 days of this order.

[1] The Sixth Cause of Action is asserted against all Defendants. All other causes of action are asserted against APL only.

[2] Defendants also argue that the grouping of three separate discrimination claims in the Third Cause of Action is improper. “Whether captioned as one or more causes of action in a complaint, discrimination based on each protected characteristic is a separate claim under FEHA. (Soria v. Univision Radio Los Angeles, Inc. (2016) 5 Cal.App.5th 570, 585, fn. 6.) For this reason, Defendants contend that the court should order Plaintiff to provide a more definite pleading. Citing Hindin v. Rust (2004) 118 Cal.App.4th 1247, Galindo argues, in essence, that the Third Cause of Action is properly pleaded because he has alleged an invasion of only one primary right: disparate treatment. “The manner in which a plaintiff elects to organize his or her claims within the body of the complaint is irrelevant to determining the number of causes of action alleged under the primary right theory. ‘[I]f a plaintiff states several purported causes of action which allege an invasion of the same primary right he has actually stated only one cause of action.’” (Hindin, at p. 1257.) Galindo may be technically correct but misses the point. Here, Galindo’s choice of pleading style obfuscates the basis for his disparate treatment claim. A more definite pleading is therefore necessary. Given that the court has sustained the demurrer to the Third Cause of Action based, in substantial part, on the uncertainty of the allegations, the court directs Plaintiff to specifically allege the factual basis for this and other causes of action (as discussed herein). Galinda may alternatively clarify the pleading by setting out the disparate treatment claim as separate causes of action.

[3] As to harassment based on age, there are zero allegations of any comments or conduct regarding Galindo’s age.