Judge: Nathan Vu, Case: 30-2021-01192090, Date: 2022-12-19 Tentative Ruling

Please Note: The hearing on this matter is scheduled for 8:30 A.M.

Demurrer

Defendant Newlight Technologies, Inc.’s demurrer is OVERRULED as to the first through seventh causes of action and SUSTAINED, without leave to amend, as to the eighth cause of action.

Defendant Newlight Technologies, Inc. demurs to the first, second, third, fourth, fifth, sixth, seventh, and eighth causes of action of Plaintiff Frank Mueller’s Third Amended Complaint (TAC,).

Standard for Demurrer

In ruling on a demurrer, a court must accept as true all allegations of fact contained in the complaint. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) A demurrer challenges only the legal sufficiency of the affected pleading, not the truth of the factual allegations in the pleading or the pleader’s ability to prove those allegations. (Cundiff v. GTE Cal., Inc. (2002) 101 Cal.App.4th 1395, 1404-05.)

Questions of fact cannot be decided on demurrer. (Berryman v. Merit Prop. Mgmt., Inc. (2007) 152 Cal.App.4th 1544, 1556.) Because a demurrer tests only the sufficiency of the complaint, a court will not consider facts that have not been alleged in the complaint unless they may be reasonably inferred from the matters alleged or are proper subjects of judicial notice. (Hall v. Great W. Bank (1991) 231 Cal.App.3d 713, 718 fn.7.)

Although courts should take a liberal view of inartfully drawn complaints, (see Code Civ. Proc., § 452), it remains essential that a complaint set forth the actionable facts relied upon with sufficient precision to inform the defendant of what plaintiff is complaining, and what remedies are being sought, (Leek v. Cooper (2011) 194 Cal.App.4th 399, 413). Bare conclusions of law devoid of any facts are insufficient to withstand demurrer. (Schmid v. City and County of San Francisco (2021) 60 Cal.App.5th 470, 481; see Code Civ. Proc., § 425.10, subd. (a).)

First Cause of Action (Disability Discrimination), Second Cause of Action (Retaliation), and Sixth Cause of Action (Violation of California Family Rights Act)

A claim of disability discrimination under California’s Fair Employment & Housing Act (FEHA) requires a showing that: (1) the plaintiff suffered from a disability; (2) the plaintiff was otherwise qualified to do his or her job, with or without reasonable accommodation; and (3) the plaintiff was subjected to an adverse employment action because of the disability. (Green v. State of California (2007) 42 Cal.4th 254, 262.)

The elements of a cause of action for retaliation under FEHA are: (1) an employee engaged in “protected activity,” (2) the employer subjected the employee to an “adverse employment action,” and (3) there is a “causal link” between the protected activity and the employer’s action. (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.)

To make out a claim for discrimination or retaliation in violation of California Family Rights Act (CFRA), a plaintiff must plead that: “‘(1) the defendant was an employer covered by CFRA; (2) the plaintiff was an employee eligible to take CFRA [leave]; (3) the plaintiff exercised 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 her exercise of her right to CFRA [leave].’” (Bareno v. San Diego Community College Dist. (2017) 7 Cal.App.5th 546, 560.)
Defendant argues that the first cause of action, second cause of action, and sixth cause of action (erroneously labeled as the eighth cause of action on the caption page) fail because the TAC does not allege a disability limiting a major life activity and does not allege a sufficient adverse action on the part of Defendant.

Here, the TAC alleges that Plaintiff “was an actual, perceived, and/or potentially disabled person . . . because he was a person with an actual, perceived, and/or potentially disabled person, and/or potentially disabling in the future physical disability(s).” (TAC ¶ 62.) The TAC also plead that Plaintiff was a qualified individual suffering from a disability covered by FEHA, CFRA, and the Families First Cononavirus Response Act (FFCRA) because Plaintiff had contracted COVID and Shingles, and required medical leave. (TAC, ¶¶ 13, 15, & 34.)

Plaintiff alleges that, upon his return, his employment duties were reduced, the terms and conditions of his employment were altered, and Defendants removed Plaintiff’s core, managerial, and supervisory responsibilities. (TAC, ¶¶ 27, 36-27, & 56.) The TAC also asserts that on June 3, 2020, about one month after Plaintiff’s return to work from COVID and two weeks after Plaintiff’s return to work after contracting Shingles, Plaintiff was given a “Final Warning” and placed on a Performance Improvement Plan by Defendant. (TAC, ¶ 40.) Plaintiff also alleges that Defendant retroactively denied Plaintiff’s previously-approved vacation time. (TAC, ¶ 52.)

FEHA defines a physical disability as a physiological condition that affects one or more body systems. (Gov. Code, § 12926, subd. (m)(1)(A).) The disability must also limit a major life activity. (Gov. Code, § 12926, subd. (m)(2)(B).) A condition limits a major life activity if it makes the achievement of the major life activity difficult. (Gov. Code, § 12926, subds. (j)(1)(B) & (m)(1)(B)(ii).) On the other hand, a disability is not a condition that is mild or does not limit a major life activity. (2 Cal. Code Regs. § 11065(d)(9)(B).) Plaintiff’s COVID allegations are sufficient to allege a disability and an adverse action by Defendant, and the demurer to the first, second, sixth, and eighth causes of action must be overruled.

Fourth Cause of Action (Failure to Engage in the Interactive Process) and Fifth Cause of Action (Failure to Accommodate)

The elements of a cause of action for failure to engage in a good faith interactive process include: (1) the plaintiff was a qualified individual; (2) the plaintiff requested an accommodation for a disability or medical condition; (3) the plaintiff was willing to engage in an interactive process to determine effective reasonable accommodations; (4) the employer failed to engage in a timely, good faith, interactive process; and (5) a reasonable accommodation was available. (See Nealy v. City of Santa Monica (2015) 234 Cal.App.4th 359, 379; Nadaf-Rahrov v. Neiman Marcus Group, Inc. (2008) 166 Cal.App.4th 952, 974, 981.)

Similarly, the essential elements of a claim for failure to accommodate are: (1) the plaintiff has a disability covered by FEHA; (2) the plaintiff is a qualified individual; and (3) the employer failed to reasonably accommodate the plaintiff's disability. (Furtado v. State Personnel Bd. (2013) 212 Cal.App.4th 729, 744, citing Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 255–256.)

Defendant asserts that the demurrer to the fourth cause of action (erroneously labeled on the caption page as the fifth cause of action) and the fifth cause of action (erroneously labeled on the caption page as the sixth cause of action) must be sustained because the Plaintiff admits that he was accommodated.

The TAC alleges Plaintiff contracted COVID and that prior to the end of Plaintiff’s COVID leave, Plaintiff reached out to Defendants to request permission to perform his work duties remotely so that Plaintiff could reduce his exposure to other health risks and contagions while his weakened immune system healed. (TAC, ¶¶ 19-20.) Plaintiff asserts that his then-supervisor refused the request. (TAC, ¶ 23.) The TAC also pleads that Defendants failed to engage in a good faith interactive process and that they failed to provide reasonable accommodations. (TAC, ¶¶ 19-23 & 25.) Plaintiff has alleged sufficient facts to constitute a cause of action for failure to engage in the interactive process and for failure to accommodate, and the demurrer to the fourth and fifth causes of action must be overruled.

Third Cause of Action (Failure to Prevent Discrimination) and Seventh Cause of Action (Unfair Business Practices)

The third cause of action and the seventh cause of action (erroneously labeled as the ninth cause of action on the caption page) are derivative of Plaintiff’s statutory claims. Because Plaintiff sufficiently states facts to constitute the alleged statutory causes of action, his derivative claims survive. The demurrer to the third and seventh causes of action must be overruled.

Eighth 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.) A constructive discharge may provide the basis for a wrongful termination claim in violation of public policy “when the employer’s conduct effectively forces an employee to resign.” (Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1244.)

“[T]o establish a constructive discharge, an employee must plead and prove . . . that the employer either intentionally created or knowingly permitted working conditions that were so intolerable or aggravated at the time of the employee’s resignation that a reasonable employer would realize that a reasonable person in the employee's position would be compelled to resign.” (Turner v. Anheuser-Busch, Inc., supra, 7 Cal.4th at p. 1251.) “To be ‘intolerable’ or ‘aggravated,’ the employee's working conditions must be ‘sufficiently extraordinary and egregious to overcome the normal motivation of a competent, diligent, and reasonable employee to remain on the job to earn a livelihood and to serve his or her employer.’” (Steele v. Youthful Offender Parole Board (2008) 162 Cal.App.4th 1241, 1253.) Further, the “adverse working conditions must amount to a ‘continuous pattern’ before the situation will be deemed intolerable.” (Turner v. Anheuser-Busch, Inc., supra, 7 Cal.4th at p. 1247.)

Defendant argues that the eighth cause of action (erroneously labeled as the tenth cause of action on the caption page) fails because the TAC does not allege a disability limiting a major life activity and does not allege a sufficient adverse action on the part of Defendant.

In this case, Plaintiff alleges that on or about June 2020, Defendants constructively terminated Plaintiff’s employment because he was disabled, because Defendants perceived Plaintiff as disabled, and because Plaintiff requested to and did take legally protected time off from work. (TAC, ¶ 167.) Defendants told Plaintiff to “carefully consider the importance of being fully present,” demanded that Plaintiff “demonstrate his commitment” by “showing up,” and retroactively denied Plaintiff’s previously-approved vacation time. (TAC, ¶¶ 51-52.) Plaintiff alleges that he was forced to consider himself constructively terminated from his position due to the unfair and disparate treatment he received from Defendants as a result of contracting COVID and Shingles. (TAC, ¶ 54.)

Plaintiff has not asserted facts rising to the level of constructive termination. Plaintiff’s reduction in duties does not constitute constructive termination. (See Gibson v. Aro (1995) 32 Cal.App.4th 1628, [plaintiff’s demotion and reduction in pay did not constitute constructive termination].)

“[N]otwithstanding the liberal policy favoring amendment of complaints, upon sustaining a demurrer to a first amended complaint, the court may deny leave to amend when the plaintiff fails to demonstrate the possibility of amendments curing the first amended complaint's defects.” (Hedwall v. PCMV, LLC (22 Cal.App.5th 564, 579.) It is the plaintiff's “burden to establish how the complaint can be amended to state a valid cause of action.” (Sanowicz v. Bacal (2015) 234 Cal.App.4th 1027, 1044.)

Plaintiff has not met his burden to identify how the Third Amended Complaint can be amended to state a viable cause of action for wrongful termination. Therefore, the demurrer must be sustained as to the eighth cause of action without leave to amend. (See Jensen v. Home Depot (2018) 24 Cal.App.5th 92, 97 [trial court properly sustains demurrer without leave to amend where plaintiff fails to meet its burden].)

Motion to Strike

Defendant Newlight Technologies, Inc.’s motion to strike is GRANTED with 10 days leave to amend.

Defendant Newlight Technologies, Inc. moves to strike the punitive damages allegations and prayer for relief in Plaintiff Frank Mueller’s Third Amended Complaint (TAC).

Standard for Motion to Strike

A court may strike out any irrelevant, false, or improper matter inserted in any pleading or strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule or an order of the court. (Code Civ. Proc., § 436.)

“Irrelevant” matters include: allegations not essential to the claim, allegations neither pertinent to nor supported by an otherwise sufficient claim or a demand for judgment requesting relief not support by the allegations of the complaint. (Code Civ. Proc., § 431.10, subd. (b).)

Striking Punitive Damages Allegations and Request

In order to obtain punitive damages, a plaintiff must plead the elements in the general punitive damage statute, Civil Code section 3294. (See Turman v. Turning Point of Central California, Inc. (2010) 191 Cal.App.4th 53, 64, citing College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 721.) The statutory elements include allegations that the defendant is guilty of oppression, fraud or malice. (Civil Code, § 3294, subd. (a).)

“Malice” is defined in the statute as conduct “intended by the defendant to cause injury to plaintiff, or despicable conduct that is carried on by the defendant with a willful and conscious disregard for the rights or safety of others.” (Civil Code, § 3294, subd. (c)(1); College Hospital, Inc. v. Superior Court, supra, 8 Cal.4th at p. 725.) “’Oppression’ means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.” (Civil Code, § 3294, subd. (c)(2).) Finally, “Fraud” is “an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.” (Civil Code, § 3294, subd. (c)(3).)

In addition, to the extent a plaintiff seeks to hold a corporate defendant liable for the acts or omissions of its employees, the plaintiff must satisfy the standards set forth in Civil Code section 3294(b). As relevant here, that section provides: “An employer shall not be liable for damages . . . based upon the acts of an employee of the employer, unless the employer . . . authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice.” (Civil Code, § 3294, subd. (b).)

Allegations regarding authorization or ratification must also be pled with particularity. That means “the plaintiff must set forth facts in his complaint sufficiently detailed and specific to support an inference that each of the statutory elements of liability is satisfied. General allegations are regarded as inadequate.” (Mittenhuber v. City of Redondo Beach (1983) 142 Cal.App.3d 1, 5.)

Here, the facts alleged in the TAC do not rise to the level of malice, oppression, or fraud necessary to state a claim for punitive damages. Additionally, Plaintiff not has not alleged corporate authorization or ratification with the requisite particularity.

Defendant shall give notice of these rulings.