Judge: Monica Bachner, Case: 22STCV08375, Date: 2023-03-17 Tentative Ruling

Department 71: Attorneys who elect to submit on these published tentative rulings, without making an appearance at the hearing, may so notify the Court by communicating this to the Department's staff at (213) 830-0771 before the set hearing time.  See, e.g., CRC Rule 324(b).   All parties are otherwise encouraged to appear by Court Call for all matters.

Case Number: 22STCV08375    Hearing Date: March 17, 2023    Dept: 71

Superior Court of California

County of Los Angeles

DEPARTMENT 71

TENTATIVE RULING

Defendant McDonald’s Restaurants of California’s demurrer to the 1st, 2nd, 3rd, 7th, 9th, 10th, and 12th causes of action in Plaintiff Amelia Arevalo’s first amended complaint is overruled.  Defendant’s demurrer is sustained as to the 4th and 11th causes of action with 20 days leave to amend.  Defendant’s demurrer is sustained as to the 5th and 6th causes of action without leave to amend.

Defendant McDonald’s Restaurants of California (“McDonald’s”) (“Defendant”) demurs to the 1st, 2nd, 3rd, 4th, 5th, 6th, 7th, 10th, and 11th causes of action in their entirety in Plaintiff Amelia Arevalo’s first amended complaint and demurs to the 9th and 12th causes of action in part.  (Notice of Demurrer, pg. 2.) 

The Court notes Defendant does not demur to the 8th (meal and rest break violations of Labor Code §226.7) cause of action.

          On March 8, 2022, Plaintiff filed her initial complaint in the instant action. On July 11, 2022, Plaintiff filed her FAC alleging twelve causes of action against Defendant: (1) discrimination in violation of Gov. Code §§12940 et seq., (2) failure to accommodate in violation of Gov. Code §12940(m), (3) failure to engage in interactive process in violation of Gov. Code §12940(n), (4) age discrimination in violation of Gov. Code §§12940 et seq., (5) failure to prevent discrimination in violation of Gov. Code §12940(k), (6) retaliation in violation of Gov. Code §12940(h), (7) wrongful termination, (8) meal and rest break violations of Labor Code §226.7, (9) failure to pay all compensation at termination and waiting time penalties; (10) failure to pay overtime and wages, (11) failure to provide employment records in violation of Cal. Labor Code §§1198.5 et seq., and (12) Violation of Business & Professions Code §17200 et seq., arising from Plaintiff’s employment by Defendant on or about June 1990 until the alleged termination of Plaintiff’s employment on or about March 19, 2020.  (See FAC.)

On August 12, 2022, Defendant filed the instant demurrer. On March 6, 2023, Plaintiff filed her opposition.  On March 10, 2023, Defendant filed its reply.

          Summary of Allegations

          Plaintiff alleges on or about June 1990, Defendant hired Plaintiff as an assistant manager, and her job duties included, but were not limited to, customer service, running the store, setting schedules, training new hires, interviewing new applicants, and managing inventory.  (FAC ¶10.)  Plaintiff alleges she was 54 years old and earned an hourly wage of $19.35.  (FAC ¶10.)  Plaintiff alleges due to the repetitive and physical nature of her job duties, she began to suffer from inflammation in her arms, left shoulder arthritis, arthritis in both wrists, four (4) herniated disks in her neck, herniated disks in her lower back, and leg pain while walking.  (FAC ¶11.)  Plaintiff alleges these injuries and pain in her hands limited a major daily activity, such as working, constituting a disability under the Fair Employment and Housing Act.  (FAC ¶11.)  Plaintiff alleges she reported these injuries to Defendant but was not sent to the doctor; Plaintiff saw a chiropractor on her own in or about 2016 and was given multiple work restrictions: no lifting objects over 10 pounds, no bending down, no reaching for things, and no sudden turns of her body.  (FAC ¶12.)  Plaintiff alleges none of these restrictions were ever accommodated by Defendant.  (FAC ¶12.)  Plaintiff alleges on one occasion, on or about December 2019, she received a delivery and there were no employees available to move the boxes to the company basement, so she was forced to move the boxes herself.  (FAC ¶13.)  Plaintiff alleges this only aggravated her condition and caused her immense back pain and Plaintiff had to take pain medication to manage the pain from her many injuries, which caused her stomach to be damaged.  (FAC ¶13.)  Plaintiff alleges she exercised her right and hired a workers’ compensation attorney, and although Defendant knew or should have known about Plaintiff’s work-related disability, Defendant did not provide workers’ compensation paperwork, did not engage in a good faith interactive process, and did not provide a reasonable accommodation.  (FAC ¶13.) 

Plaintiff alleges she endured a hostile work environment and suffered harassment at the hands of Defendant.  (FAC ¶14.)  Plaintiff alleges the manager, Angela Benega (“Benega”), was known for her constant harassment of employees and would humiliate her employees regularly and treated them in a mean and rude manner.  (FAC ¶14.) Plaintiff alleges during her time working at Defendant’s location, Benega fired twenty-five (25) employees for silly reasons or because she simply did not like them.  (FAC ¶14.)  Plaintiff alleges much of Benega’s anger during this time was directed at Plaintiff.  (FAC ¶14.)  Plaintiff alleges that when she was out due to her pain, Benega commented that Plaintiff was no longer useful to the company and was no longer convenient to have around.  (FAC ¶14.)  Plaintiff alleges Benega would also send messages to a group chat with the other managers saying that she did not care if Plaintiff was out and expressed no sympathy for her condition.  (FAC ¶14.)  Plaintiff alleges another manager, Ana Karen Davila (“Davila”), caused the events that ultimately led to Plaintiff Plaintiff’s termination.  (FAC ¶15.)  Plaintiff alleges Davila obtained Plaintiff’s account password and began altering her hours.  (FAC ¶15.)  Plaintiff alleges on or about March 19, 2020, Defendant terminated Plaintiff, alleging it was her that was altering the hours. (FAC ¶15.)  Plaintiff alleges on information and belief that she was terminated due to her age, disability, and because she requested an accommodation.  (FAC ¶15.) 

Plaintiff alleges due to the excessive workload assigned by Defendant, Plaintiff was not provided time to take breaks since the start of her employment and was constantly forced to work when she tried to take a lunch.  (FAC ¶16.)  Plaintiff alleges Defendant failed to provide Plaintiff with 30-minute uninterrupted meal breaks for every five (5) hours she has worked and failed to provide 10-minute rest breaks for every four (4) hours worked.  (FAC ¶16.)  Plaintiff alleges she is allowed all maximum waiting time penalties for her missing wages and missed rest and meal breaks as afforded by California Law.  (FAC ¶16.)

Plaintiff alleges on information and belief that she suffered from harassment, discrimination, retaliation, and ultimately termination on the basis of her disability, age, requesting accommodation, and engagement in protected activity.  (FAC ¶17.) Plaintiff alleges Defendant failed to provide workers’ compensation paperwork, engage in a good faith interactive process, or offer any reasonable accommodation.  (FAC ¶17.)  Plaintiff alleges on or about July 13, 2021, Plaintiff requested her personnel records from Defendant, pursuant to Gov. Code §1198.5, and Defendant failed to provide these records.  (FAC ¶18.)

Plaintiff alleges before filing this lawsuit, Plaintiff exhausted her administrative remedies by timely filing a complaint with the Department of Fair Employment and Housing (DFEH) and receiving a right-to-sue notice, dated July 13, 2021.  (FAC ¶19.)

          Summary of Demurrer

           Defendant demurs specially to Plaintiff’s 1st cause of action because it is uncertain as to when Plaintiff allegedly put Defendant on notice of a qualifying disability.  (C.C.P. §430.10(f).)  Defendant demurs specially to Plaintiff’s 2nd cause of action because it is uncertain as to when Plaintiff allegedly put Defendant on notice of a qualifying disability, when Plaintiff allegedly provided Defendant with a request for a reasonable accommodation and what reasonable accommodation Plaintiff was seeking.  (C.C.P. §430.10(f).)  Defendant demurs specially to Plaintiff’s 3rd cause of action because it is uncertain as to when Plaintiff allegedly provided Defendant with a request for a reasonable

accommodation and what reasonable accommodation Plaintiff was seeking.  (C.C.P. §430.10(f).)  Defendant demurs specially to Plaintiff’s 5th cause of action because it is uncertain as to when Plaintiff allegedly put McDonald’s on notice of a qualifying disability and when some of the alleged conduct took place.  (C.C.P. § 430.10(f).)  Defendant demurs specially to Plaintiff’s 6th cause of action because it is uncertain as to when Plaintiff allegedly resisted the claimed harassment, when Plaintiff allegedly made a request for accommodation for her disability, and when she allegedly made complaints to McDonald’s about harassing and discriminatory acts committed against Plaintiff.  (C.C.P. § 430.10(f).)  Defendant demurs generally to Plaintiff’s 1st, 2nd, 3rd, 4th, 5th, 6th, 7th, 9th, 10th, 11th, and 12th causes of action because they fail to state facts sufficient to constitute causes of action.  (C.C.P. §430.10(e).)

Discrimination in Violation of Gov. Code § 12940, et seq. (1st COA)

“[T]he plaintiff initially has the burden to establish a prima facie case of discrimination. The plaintiff can meet this burden by presenting evidence that demonstrates, even circumstantially or by inference, that he or she (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. To establish a prima facie case, a plaintiff must show ‘actions taken by the employer from which one can infer, if such actions remain unexplained, that it is more likely than not that such actions were based on a [prohibited] discriminatory criterion . . . .”  The prima facie burden is light; the evidence necessary to sustain the burden is minimal. As noted above, while the elements of a plaintiff’s prima facie case can vary considerably, generally an employee need only offer sufficient circumstantial evidence to give rise to a reasonable inference of discrimination.”  (Sandell v. Taylor-Listug, Inc. (2010) 188 Cal.App.4th 297, 310; CACI 2540.)

Plaintiff sufficiently alleged specific physiological disease, disorder, condition, disfigurement, or anatomical loss that limits a major life activity, including work.  (FAC ¶11; Gov. Code §12940(m)(1).)  Plaintiff sufficiently alleged that she reported those injuries to Defendant.  (FAC ¶12.)  Plaintiff sufficiently alleged that she could perform the essential duties of her job with or without an accommodation, and that she was subject to an adverse employment action.  (FAC ¶¶10, 15, 24, 25.)  Avila v. Continental Airlines, Inc. (2008) 165 Cal.App.4th 1237, cited by defendant is inapposite.  (Id. at pgs. 1248-1249 [“Vague or conclusory statements revealing an unspecified incapacity are not sufficient to put an employer on notice of its obligations under the [FEHA].”].) Here the allegations of incapacity were specific “s, Plaintiff began to suffer from inflammation in her arms, left shoulder arthritis, arthritis in both wrists, four (4) herniated disks in her neck, herniated disks in her lower back, and leg pain while walking.”  (FAC ¶ 11.) 

Defendant’s argument that Plaintiff’s FAC is uncertain because it cannot be ascertained whether the statute of limitations would bar Plaintiff’s claims is also unavailing.  Plaintiff alleged an the “adverse employment action” that was Defendant’s wrongful termination of Plaintiff on March 19, 2020, for purposes of calculating the applicable statutes of limitations.  (FAC ¶15.)   

Accordingly, Defendant’s demurrer to Plaintiff’s 1st cause of action is overruled.

Failure to Accommodate in Violation of Gov. Code § 12940(m) (2nd COA)  

The elements of a cause of action for failure to accommodate are: (1) plaintiff has a disability or medical condition or was regarded as suffering from a disability; (2) plaintiff could perform the essential duties of a sought reassigned job with or without reasonable accommodations; and (3) the employer failed to reasonably accommodate.  (Wilson v. County of Orange (2009) 169 Cal.App.4th 1185, 1193 [reasonable accommodations include job restructuring, modified work schedules, reassignments, providing readers or interpreters, and paid or unpaid leave].)

          Defendant’s argument that Plaintiff failed to allege when she purportedly notified Defendant of her injuries and fails to allege that she advised Defendant of how the pain from the injuries limited her ability to work such that she had a qualifying disability is unavailing.  (King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 443 [finding the employee must provide notice that an accommodation is sought for an identified disability and an employer is not ordinarily liable for failing to accommodate a disability of which it had no knowledge].)  Plaintiff sufficiently alleged that she reported her injuries to Defendant and saw a chiropractor on her own in or about 2016.  (FAC ¶12.)  Defendant’s argument that Plaintiff fails to allege when she allegedly gave Defendant notice that she was seeking a reasonable accommodation and there are no allegations describing the nature of the accommodation sought is also unavailing.  Plaintiff sufficiently alleged she reported her work injuries to Defendant but was not sent to a doctor and a chiropractor gave her “multiple work restrictions: no lifting objects over 10 pounds, no bending down, no reaching for things, and no sudden turns of her body. None of these restrictions were ever accommodated by Defendant.”  (FAC ¶12.)

Accordingly, Defendant’s demurrer to Plaintiff’s 2nd cause of action is overruled.

Failure to Engage in Interactive Process in Violation of Gov. Code § 12940(n) (3rd COA)

“Two principles underlie a cause of action for failure to provide a reasonable accommodation. First, the employee must request an accommodation. Second, the parties must engage in an interactive process regarding the requested accommodation and, if the process fails, responsibility for the failure rests with the party who failed to participate in good faith.”  (Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34, 54.)

Defendant repeats the same arguments stated above in opposition to Plaintiff’s claims related to Plaintiff’s failure to allege when she notified Defendant of her injuries.  As applied to the 3rd cause of action, Defendant’s arguments are unavailing.  Defendant also argues Plaintiff failed to allege she identified a reasonable accommodation to Defendant that would reasonably accommodate her alleged disability.  (Scotch v. Art Institute of California-Orange County, Inc. (2009), 173 Cal.App.4th 986, 1018.)  Plaintiff sufficiently alleged she reported her work injuries to Defendant but was not sent to a doctor and a chiropractor gave Plaintiff “multiple work restrictions: no lifting objects over 10 pounds, no bending down, no reaching for things, and no sudden turns of her body. None of these restrictions were ever accommodated by Defendant.”  (FAC ¶12.)  Plaintiff’s allegations sufficiently identified reasonable accommodations to Defendant that would reasonably accommodate her alleged disability.

Accordingly, Defendant’s demurrer to Plaintiff’s 3rd cause of action is overruled.

Age Discrimination in Violation of Gov. Code §12940 et seq. (4th COA)

“In order to make out a prima facie case of age discrimination under FEHA, a plaintiff must present evidence that the plaintiff (1) is over the age of 40; (2) suffered an adverse employment action; (3) was performing satisfactorily at the time of the adverse action; and (4) suffered the adverse action under circumstances that give rise to an inference of unlawful discrimination, i.e., evidence that the plaintiff was replaced by someone significantly younger than the plaintiff.” (Sandell, 188 Cal.App.4th at pg. 321.)

          Plaintiff alleges at the time of her injury and termination, and at all times that Defendant discriminated against Plaintiff, Plaintiff was over the age of 40, and she alleges on information and belief that Plaintiff’s age, being over 40, was a motivating factor in Defendant’s decision to terminate Plaintiff’s employment.  (FAC ¶68.)  Plaintiff alleges on information and belief that as a direct and proximate result of Plaintiff’s age, Defendant decided to terminate Plaintiff’s employment, and if fact, did terminate Plaintiff’s employment.  (FAC ¶72.)  Plaintiff alleges as a direct, foreseeable, and proximate result of Defendants’ discriminatory action against Plaintiff, she has been harmed by the loss of wages, salary, benefits, the potential for advancement, and additional amount of money she would have otherwise received but for Defendant’s discriminatory conduct.  (FAC ¶74.)  Plaintiff alleges as a direct, foreseeable, and proximate result of the wrongful conduct of Defendant, Plaintiff has also suffered and continues to suffer emotional distress and anguish, humiliation, anxiety, and medical expenses all to her damage in an amount subject to proof at trial.  (FAC ¶75.)

Plaintiff fails to allege that she suffered the adverse action under circumstances that give rise to an inference of unlawful discrimination, i.e., evidence that the plaintiff was replaced by someone significantly younger than the plaintiff.  Plaintiff alleged that manager Davila caused the events that would lead to her termination as Davila allegedly altered Plaintiff’s hours.  (FAC ¶15.)  Plaintiff also alleged Benega rudely commented that she was no longer useful to the company and was no longer convenient to have around and would send messages to a group chat with the other managers saying that she did not care if Plaintiff was out and expressed no sympathy for Plaintiff’s condition.  (FAC ¶14.) However, there are no facts to support the claim that Davila or Benega harbored any discriminatory animus against Plaintiff based on age.

Accordingly, Defendant’s demurrer to Plaintiff’s 4th cause of action is sustained with 20 days leave to amend.

Failure to Prevent Discrimination in Violation of Gov. Code §12940(k) & Retaliation in Violation of Gov. Code §12940(h) (5th & 6th COAs)

Defendant argues Plaintiff’s claim for failure to prevent discrimination fails because her cause of action for discrimination fails.  Defendant argues Plaintiff fails to allege when and how she requested an accommodation from Defendant thereby making the claim uncertain and conclusory.  Plaintiff does not address or oppose Defendant’s demurrer to Plaintiff’s 5th or 6th causes of action.  Plaintiff is deemed to have conceded to the merits of the demurrer for those claims and abandoned those claims.  (See Herzberg v. County of Plumas (2005) 133 Cal.App.4th 1, 20 [failure to oppose issue raised in demurrer deemed abandonment of the issue)].)

Accordingly, Defendant’s demurrer to Plaintiff’s 5th and 6th causes of action is sustained without leave to amend.

Wrongful Termination (7th COA)

Defendant only argument regarding Plaintiff’s 7th cause of action is that is is duplicative of her 6th cause of action for retaliation and should therefore be sustained.  Defendant’s argument is unavailing, as Plaintiff appears to have abandoned her 6th cause of action, mooting Defendant’s argument that it is duplicative of another cause of action.

Accordingly, Defendant’s demurrer to Plaintiff’s 7th cause of action is overruled.

Failure to Pay All Compensation at Termination; Waiting Time Penalties & Failure to Pay Overtime and Wages (9th & 10th COAs)

To establish a claim for nonpayment of wages under Labor Code §§201 and 202, the following elements are required: (1) plaintiff performed work for a defendant; (2) the defendant owes plaintiff wages under the terms of the employment; and (3) the amount of unpaid wages.  (See CACI 2700.)

To recover a waiting-time penalty for nonpayment of wages under Labor Code §203, the following elements are required: (1) plaintiff’s employment with an employer ended; (2) the employer willfully failed to pay plaintiff all wages when due; (3) plaintiff’s daily wage rate at the time their employment ended; and (4) the date on which the employer never paid plaintiff all wages.  (See CACI 2704.)

A cause of action for failure to pay overtime compensation requires the following elements:  (1) plaintiff performed for defendant; (2) plaintiff worked overtime hours; (3) defendant knew or should have known that plaintiff had worked overtime hours; (4) plaintiff was not paid/paid less than the overtime rate for some or all of the overtime hours worked; and (5) the amount of overtime pay owed.  (CACI 2701.)

Plaintiff alleges Defendant failed to pay Plaintiff all wages for all hours worked at the time of Plaintiff’s termination.  (FAC ¶121.)  Plaintiff alleges she has been damaged by Defendant’s violation of the Labor Code and Defendant’s failure to pay all compensation at the time of termination was willful in that Defendant knew wages to be due but failed to pay them.  (FAC ¶¶123, 125.) 

Plaintiff alleges Defendant failed to pay Plaintiff wages for all hours worked, including, without limitation, overtime wages.  (FAC ¶127.)  Plaintiff alleges from at least four (4) years prior to the filing of this action and continuing to the present, Defendant failed to pay Plaintiff wages for all hours worked, at least in part because Defendant misclassified Plaintiff and required Plaintiff to work overtime but did not compensate her for this time.  Plaintiff alleges Defendant failed to pay wages and overtime in a timely fashion also constituted a violation of Labor Code §204, which requires that all wages be paid in semimonthly payments.  (FAC ¶129.) 

          Defendant argues Plaintiff’s 9th cause of action fails because Plaintiff’s 10th cause of action fails to allege sufficient contextual facts to properly state a claim for unpaid overtime wages.  Defendant’s argument is unconvincing and improperly cites to an unreported case that has no precedential value.  Moreover, here, the allegation is that the failure to pay wages for all hours work was at least in part because Defendant misclassified Plaintiff and required her to work overtime without compensating her.  (FAC ¶128.) 

Accordingly, Defendant’s demurrer to Plaintiff’s 9th and 10th causes of action is overruled.

Failure To Provide Employment Records in Violation of Cal. Labor Code §1198.5 et seq. (11th COA)

Labor Code §1198.5(a) provides: “Every current and former employee, or his or her representative, has the right to inspect and receive a copy of the personnel records that the employer maintains relating to the employee’s performance or to any grievance concerning the employee.”  (Lab. Code §1198.5(a).)  “The employer shall make the contents of those personnel records available for inspection to the current or former employee, or his or her representative, at reasonable intervals and at reasonable times, but not later than 30 calendar days from the date the employer receives a written request, unless the current or former employee, or his or her representative, and the employer agree in writing to a date beyond 30 calendar days to inspect the records. . .”  (Lab. Code §1198.5(b)(1) (emphasis added.)

Plaintiff alleges she, via counsel, requested Defendants to provide Plaintiff with her employee personnel file and payroll records, and Defendants did not provide Plaintiff with inspection rights or complete copies of such records, in violation of the Labor Code.  (FAC ¶137.) Plaintiff, however, fails to allege that she or her counsel ever submitted a written request for Plaintiff’s personnel records as required by Labor Code §1198.5(2)(A).

Accordingly, Defendant’s demurrer to Plaintiff’s 11th cause of action is sustained with 20 days leave to amend.

Violation of Business & Professions Code §17200 et seq. (12th COA)

To set forth a claim for a violation of Business and Professions Code §17200 (“UCL”), Plaintiff must establish Defendant was engaged in an “unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising” and certain specific acts.  (Bus. & Prof. Code §17200.)  A cause of action for unfair competition “is not an all-purpose substitute for a tort or contract action.”  (Cortez v. Purolator Air Filtration Products Co. (2000) 23 Cal.4th 163, 173.)

“[A]n employer’s policy or practice that violates the Labor Code may also be held an ‘unlawful business practice’ . . . .”  (Steinhebel v. L.A. Times Communications (2005) 126 Cal.App.4th 696, 712.)  “[O]rders for payment of wages unlawfully withheld from an employee are also a restitutionary remedy authorized by section 17203.”  (Cortez v. Purolator Air Filtration Products Co.  (2000) 23 Cal.4th 163, 177 [addressing wages already earned but not future loss of wages as damages].)

Defendant argues Plaintiff’s 12th cause of action is derivative of and based on the other eleven preceding causes of action and must be dismissed if other causes of action have been dismissed.

Plaintiff sufficiently alleges violations under the Labor Code that can also be held as unlawful business practices.

Accordingly, Defendant’s demurrer to Plaintiff’s 12th cause of action is overruled.

Dated: March _____, 2023

Hon. Monica Bachner

Judge of the Superior Court