I. BACKGROUND 

Plaintiffs Johana Serratos (“Serratos”), Maria Nunez Barrueta (“Barrueta”), Edith Nava Mar (“Mar”), Johanna Gonzalez (“Gonzalez”), and Blanca Ramirez-Guerra (“Ramirez-Guerra”) (collectively, “Plaintiffs”) filed this FEHA action against defendants Buckingham Property Management, Abhay Gokani Corporation (“AGC”), and Does 1-99 arising from Plaintiffs’ employment with defendants. The complaint sets forth nine causes of action for (1) Lab. Code § 1102.5 Retaliation, (2) FEHA discrimination: disparate treatment, (3) FEHA discrimination: failure to provide a reasonable accommodation, (4) FEHA discrimination: failure to engage in interactive process, (5) FEHA retaliation, (6) FEHA failure to prevent discrimination or retaliation, (7) violation of CFRA rights, (8) CFRA - retaliation, and (9) wrongful discharge in violation of public policy. 

Defendant AGC now demurs to the complaint on the grounds of misjoinder of Plaintiffs, uncertainty, and as causes of action one through eight only for failure to state sufficient facts against it. 

Plaintiffs, in opposition, reiterate portions of the complaint. Additionally, Plaintiffs argue that Defendants terminated all five complaining Hispanic employees (Plaintiffs) on the same date of March 31, 2023 and used the excuse of layoffs. 

AGC, in reply, reasserts that Plaintiffs are improperly joined and that the complaint contains generic assertions. 

II. demurrer 

Before filing a demurrer, the demurring party is required to meet and confer with the party who filed the pleading demurred to for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer. (CCP § 430.41(a).) 

AGC’s counsel declares he and Plaintiff’s counsel met and conferred telephonically on June 4, 2024, and no agreement was reached. (Ganchrow Decl. ¶ 3.) The Court finds AGC fulfilled the meet and confer requirement prior to filing the demurrer.¿ 

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.)¿ 

“A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (Code Civ. Proc., §§ 430.30, 430.70.) At the pleading stage, a plaintiff need only allege ultimate facts sufficient to apprise the defendant of the factual basis for the claim against him. (Semole v. Sansoucie (1972) 28 Cal. App. 3d 714, 721.) A “demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the pleading, or the construction of instruments pleaded, or facts impossible in law.” (S. Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732 (internal citations omitted).)¿ 

III. DISCUSSION 

AGC argues Plaintiffs are improperly joined because there are no allegations that they share any common factual or legal questions, because the exact nature of each plaintiff’s claims of discrimination/retaliation/wrongful termination is unclear. 

“Code of Civil Procedure section 430.10, subdivision (d), permits a demurrer where ‘[t]here is a defect or misjoinder of parties.’ The standard for joinder of plaintiffs is set forth in Code of Civil Procedure section 378…” (Anaya v. Superior Court (1984) 160 Cal.App.3d 228, 231.)  

CCP § 378 states:  

(a) All persons may join in one action as plaintiffs if:  

(1) They assert any right to relief jointly, severally, or in the alternative, in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all these persons will arise in the action; or  

(2) They have a claim, right, or interest adverse to the defendant in the property or controversy which is the subject of the action.  

(b) It is not necessary that each plaintiff be interested as to every cause of action or as to all relief prayed for. Judgment may be given for one or more of the plaintiffs according to their respective right to relief.  

“The court [in Coleman v. Twin Coast Newspaper, Inc. (1959) 175 Cal.App.2d 650, 653] noted that ‘[t]he purpose of section 378 is to permit the joinder in one action of several causes arising out of identical or related transactions and involving common issues. The statute should be liberally construed so as to permit joinder whenever possible in furtherance of this purpose.’ [Citation.]” (Moe v. Anderson (2012) 207 Cal.App.4th 826, 832-33, footnote omitted.) Joinder is not permitted where “the events do not constitute a single transaction and nothing is alleged to indicate a related series of transactions.” (Id. at 833.) 

The complaint alleges: “1. Plaintiffs were hired as on-site property managers by Defendants. 2. During Plaintiffs’ employment, Plaintiffs were required to remain on-call for emergencies but were not paid for their time spent responding to the emergencies. 3. As on-site property managers, Plaintiffs’ wages were offset by rent charged by Defendants. 4. Plaintiffs’ rental rates exceeded the amounts allowed under the Wage Order. 5. Plaintiffs were also prevented from using their sick days.” (Compl. ¶¶1-5.) In terms of specific allegations as to each individual plaintiff, the complaint alleges: (1) In 2022, Plaintiff Serratos’ request for accommodations and medical leave because of her pregnancy was denied by Abhay Gokani (alleged to be defendants’ main/only shareholder), and that he also instructed her to find a new job. (Id. ¶¶40-41), (2) In 2022, Plaintiff Mar request for accommodations for a kidney transplant and hip replacement were denied (Id. ¶¶38-39), (3) In 2022, Plaintiff Ramirez-Guerra was involved in a car accident and her request for accommodations and medical leave were denied (Id. ¶¶ 35-36). Around March 31, 2023, in response to Plaintiffs complaints and requests for accommodations / medical leave, Defendants wrongfully discharged Plaintiffs. (Compl. ¶ 45.) 

Here, the Court finds that there is substantial commonality between Plaintiffs Serratos, Mar, and Ramirez-Guerra based on their collective jobs as on-site property managers, denial of medical leave and accommodations, and their collective dischage on the same date. However, there are no specific allegations pertaining to Plaintiffs Barrueta and Gonzalez to tie them to this action – a general assertion is not enough. The Court also notes that there is no nexus between the allegation that Defendants wrongfully discharged Hispanic employees (Compl. ¶ 42) and its relevance to Plaintiffs, since the complaint does not allege that any of the plaintiffs were Hispanic. 

In terms of misjoinder, the demurrer as to Plaintiffs Serratos, Mar, and Ramirez-Guerra is overruled; there is sufficient commonality between these plaintiffs arising from their employment as on-site property managers with Defendants and their date of termination. However, the demurrer as it relates to Plaintiffs Barrueta and Gonzalez will be sustained with leave to amend. 

AGC argues the complaint is uncertain because all Defendants and Plaintiffs are lumped together, such that AGC is not on notice of what it must defend against.  

A party may object to a pleading by demurrer if “The pleading is uncertain.” Uncertain includes ambiguous and unintelligible. (CCP §430.10(f).) However, uncertainty is a disfavored basis for demurrer and only applies when the demurrer is sufficiently unintelligible that a responding party would have no idea how to direct their litigation efforts.¿(Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616; Ludgate Insurance Co. v. Lockheed Martin Corp. (2000) 82 Cal.App.4th 592, 608.)¿ “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.”¿(Chen v. Berenjian (2019) 33 Cal.App.5th 811, 822.)¿ 

The Court disagrees that the pleading is so uncertain as to be unintelligible, even if the Court agrees that the allegations must be more specifically pled in terms of the causes of action (discussed further below). The complaint is clearly based on alleged FEHA violations arising from Plaintiffs’ employment with Defendants, which includes AGC [“Defendants, and each of them….were the agents, servants, and employees of each other” (Compl. ¶ 15); “Defendants, and each of them…were business entities or individuals who owned, controlled, or managed the business which has damaged Plaintiffs” (Compl. ¶ 16); and “Defendants, and each of them,…were the partners, agents, servants, employees, joint venturers, or co-conspirators of each other defendant” (Compl. ¶ 18).]. 

In the moving papers, AGC relies on Vernon v. State of California (2004) 116 Cal. App. 4th 114 to argue there was no joint employer relationship. In Vernon, Appellant was an employee, but not of the State either directly or indirectly, which necessitated a “totality of circumstances” test and analysis surrounding the employment relationship in question since he sought to maintain his causes of action without any direct employment relationship. Here, the same issue is not present because Plaintiffs have alleged that they worked for Defendants, such that there is a direct employment relationship with AGC. (Compl. ¶¶ 25, 27, 28, 30.) Any ambiguities as to the specifics of the employment relationship or the extent of each individual Plaintiffs’ claims can be clarified through discovery. 

AGC’s demurrer to the entire complaint on the grounds of uncertainty is overruled. 

AGC argues that each cause of action contains conclusory and boilerplate allegations, such that Plaintiffs have not stated sufficient facts to state claims against it. The Court reviews each cause of action. 

This cause of action is brought by all Plaintiffs pursuant to Lab. Code § 1102.5. An employer may not prevent or retaliate against an employee who discloses (or an employee that the employer believes may disclose) information about a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation (Lab. Code, § 1102.5.)  

The complaint alleges, “Plaintiffs disclosed information to an employee with authority to investigate, discover, or correct legal violations or noncompliance with a local, state, or federal rule or regulation” (Compl. ¶ 48), “Defendants subjected Plaintiffs to one or more of the following adverse employment actions: asked impermissible non-job-related questions; denied accommodation for pregnancy; denied any employment benefit or privilege; denied family care or medical leave; denied reasonable accommodation for a disability; denied work opportunities or assignments; laid off; terminated” (Compl. ¶ 50), and “Plaintiffs’ disclosure of information or refusal to participate in an unlawful act was a contributing factor in these defendants’ decision to take one or more of the aforementioned adverse employment actions against Plaintiffs.” (Id. ¶ 51) 

ACG contends there are no facts found in the allegations to ascertain which plaintiff is talking about or what adverse action was allegedly taken. The Court agrees and finds the general allegations be insufficient to support a cause of action for unlawful retaliation under Lab. Code § 1102.5 [Whistleblower Protection]. Nowhere in the complaint do Plaintiffs plead when any particular facts were disclosed to which particular agency or person with authority to investigate, discover, or correct the legal violations, nor do they allege any particular information provided to a body or agency conducting the investigation. Further, Plaintiffs do not identify any specific violation of a state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation, nor have they alleged a causal connection between the whistleblowing to the time the alleged adverse employment action was taken against Plaintiffs. The only specific allegations remain the denial of medical leave for Plaintiffs Serratos, Mar, and Ramirez-Guerra in 2022 only. There is no causal connection pled between the medical leave denial in 2022 and the application of Lab. Code, § 1102.5. Lastly, there are no specific allegations pertaining to Plaintiffs Barrueta and Gonzalez for them to be able to maintain this cause of action. 

The demurrer to the first cause of action is sustained. 

A person suffers disparate treatment in their employment when they are treated less favorably than others similarly situated. “A plaintiff may establish a prima facie case of disparate treatment under California's Fair Employment and Housing Act (FEHA) by showing that: ¿(1) she belongs to a protected class; ¿(2) she performed her job satisfactorily; ¿(3) she suffered an adverse employment action; (4) her employer treated her differently than a similarly situated employee who does not belong to the same protected class; and (5) some other circumstances which suggest discriminatory motive. (London v. Sears, Roebuck & Co. (2011) 619 F. Supp. 2d 854, 860.) 

The second cause of action brought by Plaintiffs Serratos, Mar, and Ramirez-Guerra alleges, “defendants subjected Plaintiffs to one or more of the following adverse employment actions: asked impermissible non-job-related questions; denied accommodation for pregnancy; denied any employment benefit or privilege; denied family care or medical leave; denied reasonable accommodation for a disability; denied work opportunities or assignments; laid off; terminated” (Compl. ¶ 58) and that “One or more of the following protected statuses applicable to Plaintiff were a substantial motivating reason for these defendants to subject Plaintiff to one or more of the aforementioned adverse employment actions: disability; family care or medical leave; pregnancy, childbirth, breast feeding, and/or related medical conditions” (Compl. ¶ 59). 

Here, the complaint has not pled any specific facts to support a cause of action for disparate treatment. Plaintiffs Serratos, Mar, and Ramirez-Guerra each allege their request for accommodation and medical leave were denied in 2022, but they have not pled that they performed their job satisfactorily or that AGC treated them differently than other similarly situated employees as to suggest a discriminatory motive for their collective termination on March 31, 2023. 

The demurrer to the second cause of action is sustained. 

Government Code section 12940(n) provides that it is an unlawful employment practice “[f]or an employer . . . to fail to engage in a timely, good faith, interactive process with the employee or applicant to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee or applicant with a known physical or mental disability or known medical condition.” (Govt. Code, § 12940(n).)¿¿ 

Government Code section 12940(m) provides that it is an unlawful employment practice “[f]or an employer . . . to fail to make reasonable accommodation for the known physical or mental disability of an applicant or employee.” (Govt. Code, § 12940(m)(1).) 

The third and fourth causes of action brought by Plaintiffs Serratos, Mar, and Ramirez-Guerra allege: “defendants knew that Plaintiffs had, or had a history of having, a physical condition that limited major life activities” (Compl. ¶ 66), “Plaintiffs were able to perform the essential job duties of Plaintiffs’ current position or a vacant alternative position to which Plaintiffs could have been reassigned, either with or without reasonable accommodation for Plaintiffs’ condition” (Compl. ¶ 67) and that “These defendants failed to provide reasonable accommodations to Plaintiffs” (Compl. ¶ 68.)  

A general recitation of the essential elements without any supporting facts is insufficient to support these causes of action. The demurrer to the third and fourth causes of action are sustained. 

 These causes of action are brought by Plaintiffs Serratos, Mar, and Ramirez-Guerra only. “[I]n order to establish a prima facie case of retaliation under the FEHA, a plaintiff must show (1) he or she engaged in a “protected activity,” (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and¿the employer's action.” (Yanowitz¿v.¿L'Oreal¿USA, Inc.¿(2005) 36 Cal.4th 1028, 1042.) Despite an absence of direct evidence of retaliatory animus, close temporal proximity between a plaintiff's protected activity and the alleged retaliatory conduct against the plaintiff has been found sufficient to support a prima facie case of causation. (See¿Flait v. North American Watch Corp.¿(1992) 3 Cal.App.4th 467, 478.)¿ 

Again, a general recitation of the essential elements alone is insufficient. Plaintiffs Serratos, Mar, and Ramirez-Guerra have not pled any specific facts of which activities they engaged in that fell within the class of “protected activity”, nor have they pled a causal link between that protected activity to their termination on March 31, 2023.  

The demurrer to the fifth and sixth causes of action are sustained. 

These causes of action are brought by Plaintiffs Serratos and Ramirez-Guerra only. 

California Family Rights Act (“CFRA”) entitles eligible employees to take up to 12 unpaid work weeks in a 12-month period for family care and medical leave to care for their children, parents, or spouses, or to recover from their own serious health condition. (Gov. Code, § 12945.2; 2 Cal. Code Regs., §§ 7297.0 to 7297.11 (for regulations implementing the CFRA).) “CFRA ‘is intended to give employees an opportunity to take leave from work for certain personal or family medical reasons without jeopardizing job security.’ ” (Bareno v. San Diego Community College Dist. (2017) 7 Cal.App.5th 546, 558.) 

 The elements of a cause of action for retaliation in violation of¿CFRA¿are: “(1) the defendant was an employer covered by¿CFRA; (2) the plaintiff was an employee eligible to take¿CFRA¿leave; (3) the plaintiff exercised [his or] her right to take leave for a qualifying¿CFRA¿purpose; and (4) the plaintiff suffered an adverse employment action, such as termination, fine, or suspension, because of [his or] her exercise of [his or] her right to¿CFRA¿leave.” (Dudley v. Dep't of Transp. (2001) 90 Cal. App. 4th 255, 261.) An eligible employee is an employee “who has actually worked ... for the employer at least 1,250 hours during the 12-month period immediately prior to the date of the¿CFRA¿leave ... is to commence.” (Id.; Cal. Code Regs., tit. 2, § 7297.0(e).) 

Plaintiffs Serratos and Ramirez-Guerra have not pled sufficient facts to support a violation of CFRA. The brief allegations that (1) Plaintiff Ramirez-Guerra was involved in a car accident and that her request for accommodations and medical leave were denied in 2022 (Compl. ¶¶ 35-36) and (2) Plaintiff Serratos’ request for accommodations and medical leave because of her pregnancy was denied around November 2022 (Compl. ¶¶ 40-41) are insufficient.