Judge: Peter A. Hernandez, Case: 24STCV29674, Date: 2025-06-09 Tentative Ruling
Case Number: 24STCV29674 Hearing Date: June 9, 2025 Dept: 34
1. Defendant
OnGuard Inc.’s Demurrer is SUSTAINED in part as to the first, second, third,
and fourth causes of action and OVERRULED in part as to the fourth and fifth
causes of action.
2. Defendant
OnGuard Inc.’s Motion to Strike is GRANTED.
The court will inquire at the hearing whether leave to
amend should be granted.
I.
Background
On November 12, 2024, Plaintiff Victor Manuel Ek
(“Plaintiff”) filed a complaint against Defendants OnGuard Inc. and Queenscare
arising from Plaintiff’s employment alleging causes of action for:
1.
Discrimination in Violation of The Fair
Employment and Housing Act (“FEHA”);
2.
Harassment in Violation of FEHA;
3.
Retaliation in Violation of FEHA;
4.
Failure To Prevent Discrimination, Harassment,
and Retaliation in Violation of FEHA;
5.
Wrongful Discharge of Employment in Violation
of Public Policy;
6.
Violation of Labor Code §§ 226 & 1198.5;
7.
Failure To Furnish Accurate Itemized Wage
Statements; and
8.
Failure To Maintain Required Records.
On January
10, 2025, Plaintiff filed a First Amended Complaint (“FAC”) against Defendants OnGuard
Inc. and Gracelight Community Health (“Defendants”) alleging causes of action
for:
1.
Discrimination in Violation of The Fair
Employment and Housing Act (“FEHA”);
2.
Harassment in Violation of FEHA;
3.
Retaliation in Violation of FEHA;
4.
Failure To Prevent Discrimination, Harassment,
and Retaliation in Violation of FEHA;
5.
Wrongful Discharge of Employment in Violation
of Public Policy;
6.
Violation of Labor Code §§ 226 & 1198.5;
7.
Failure To Furnish Accurate Itemized Wage
Statements; and
8.
Failure To Maintain Required Records.
On February
21, 2025, Defendant OnGuard Inc. (“OnGuard”) filed this Demurrer and Motion to
Strike to Plaintiff’s FAC. On February 27, 2025, Plaintiff filed oppositions.
On June 2, 2025, OnGuard filed a reply.
On April 7,
2025, Defendant Gracelight Community Health filed an answer to Plaintiff’s FAC.
II. Demurrer
A.
Legal Standard
“The party
against whom a complaint or cross-complaint has been filed may object, by
demurrer or answer as provided in Section 430.30, to the pleading on any one or
more of” various grounds listed in statute. (Code Civ. Proc., § 430.10.)
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 pleading alone, and not the evidence or facts
alleged.” (E-Fab, Inc. v. Accountants, Inc. Servs. (2007) 153
Cal.App.4th 1308, 1315.) As such, the court assumes the truth of the
complaint’s properly pled or implied factual allegations. (Ibid.) The
only issue a demurrer is concerned with is whether the complaint, as it stands,
states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th
740, 747.)
Where a
demurrer is sustained, 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 plaintiff to show the court
that a pleading can be amended successfully. (Id.; Lewis v. YouTube, LLC
(2015) 244 Cal.App.4th 118, 226.) However, “[i]f there is any reasonable
possibility that the plaintiff can state a good cause of action, it is error to
sustain a demurrer without leave to amend.” (Youngman v. Nevada Irrigation
Dist. (1969) 70 Cal.2d 240, 245).
B.
Discussion
Defendant OnGuard
Inc. (“OnGuard”) demurs,
pursuant to Code of Civil Procedure section 430.10 subdivision (e), to the
first, second, third, fourth, and fifth causes of action in Plaintiff’s FAC on
the grounds that they fail to state
facts sufficient to constitute causes of action.
1.
Request for Judicial Notice
Plaintiff’s Request for Judicial Notice is granted. “A
court may properly take judicial notice of its own records. (Evid. Code, § 452,
subd. (e).)” (Garcia v. Sterling (1985) 176 Cal.App.3d 17, 21.)
2.
1st Cause of Action – Discrimination in
Violation of FEHA
A plaintiff alleging discrimination must
allege “that (1) he was a member of a protected class, (2) he was qualified for
the position he sought or was performing competently in the position he held,
(3) he suffered an adverse employment action, such as termination, demotion, or
denial of an available job, and (4) some other circumstance suggests
discriminatory motive.” (Guz v. Bechtel National Inc. (2000) 24 Cal.4th
317, 355.)
OnGuard argues that Plaintiff fails to allege that Plaintiff was
qualified for his position at the time he was replaced from his assignment as a
security guard for Defendant Gracelight Community Health (“Gracelight”). (Demurrer, at p. 4.) Additionally,
OnGuard argues that Gracelight was the one to replace Plaintiff allegedly due
to his age, thus Gracelight’s discriminatory intent cannot be imputed onto
OnGuard. (Ibid.) OnGuard also argues that there are no facts showing
that Plaintiff was denied an available job at OnGuard after being replaced by
Gracelight. (Ibid.) Lastly, OnGuard contends that there are no facts
alleged showing any discriminating motive by OnGuard. (Ibid.)
The court finds that Plaintiff fails to
allege a cause of action for discrimination under FEHA. Plaintiff alleges to be
seventy-six years old and a member of a protected class due to his age. (FAC, ¶
9.) Plaintiff also alleges that he was subject to an adverse employment action due
to being replaced from his position as security for Gracelight, OnGuard’s
failure to reassign Plaintiff to a new post, and then being constructively terminated
by OnGuard. (Id., ¶¶ 14, 18-21.) Nevertheless, Plaintiff fails to allege
that he was competently performing his position as security for Gracelight or
that he was qualified for a subsequent position with OnGuard. More importantly,
Plaintiff fails to allege facts suggesting OnGuard’s discriminating motive. As
alleged, Plaintiff contends that Gracelight asked to replace Plaintiff as he
was “too old, not only in appearance but also in age, and [because Gracelight]
[needs] young people at the post for a fresh look.” (Id., ¶ 14.) There
are no allegations pertaining to any comments by OnGuard regarding Plaintiff’s
age. Instead, there are allegations that OnGuard offered Plaintiff a one-day
position while OnGuard located a new post for Plaintiff. (Id., ¶¶
18-21.) There is no indication that OnGuard’s failure to secure Plaintiff a new
post was due to a discriminating motive.
The demurrer is sustained.
3.
2nd Cause of Action – Harassment in
Violation of FEHA
It is an unlawful
employment practice under FEHA for an employer to harass an employee because of
their age, race, national origin, or disability. (Gov. Code § 12940, subd.
(j)(1).) To establish a prima facie case of harassment, a plaintiff must show
(1) membership in a protected class; (2) that he was subjected to unwelcome
harassment; (3) harassment based on his protected status; (4) that the
harassment unreasonably interfered with his work performance by creating an
intimidating, hostile, or offensive work environment; and (5) defendant is
liable for the harassment. (Thompson v. City of Monrovia (2010) 186
Cal.App.4th 860, 876.)
To establish a hostile work environment,
harassment must be sufficiently severe or pervasive to alter the conditions of
the plaintiff’s employment and create an abusive working environment. (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 609.) Generally,
negative employment decisions, such as termination or demotion, cannot form the
basis of a hostile environment claim and are suited to a discrimination
claim. However, “some office employment actions done in furtherance of a
supervisor’s managerial role can also have a secondary effect of communicating
a hostile message. This occurs when the actions establish a widespread
pattern of bias.” (Roby v. McKesson Corp. (2009) 47 Cal.4th 686,
707-11.)
The
court finds that Plaintiff fails to allege a cause of action for harassment
against OnGuard. Although Plaintiff alleges his membership in a protected class
due to his age, Plaintiff fails to allege that OnGuard subjected Plaintiff to
unwelcomed harassment based on his age that unreasonably interfered with his
work. It is clear that Gracelight directly discriminated against Plaintiff due
to his age, however, Plaintiff fails to show that OnGuard created a hostile
work environment beyond making managerial decisions to find Plaintiff a new
position. (FAC, ¶¶ 14, 18-21.) Plaintiff’s allegations regarding OnGuard’s
failure to find him a new post are not sufficiently severe and pervasive to
constitute harassment as Plaintiff alleges to have been offered at least a
one-day position in the meantime. (Id., ¶ 20.)
The
demurrer is sustained.
4.
3rd Cause of Action – Retaliation in
Violation of FEHA
“To establish a prima facie case of retaliation
under the [Fair Employment and Housing Act] 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.” (Meeks v. Autozone, Inc. (2018)
24 Cal.App.5th 855, 878-879, brackets omitted.) “An ‘adverse employment
action,’ which is a critical component of a retaliation claim, requires a
substantial adverse change in the terms and conditions of the plaintiff’s employment.”
(Holmes v. Petrovich Development Co., LLC (2011) 191 Cal.App.4th 1047,
1063, quotation marks omitted.) .
The court finds that Plaintiff fails to allege a cause of
action for harassment against OnGuard. Plaintiff alleges that he was subjected
to an adverse employment action by being replaced from his position as security for
Gracelight, OnGuard’s failure to reassign Plaintiff to a new post, and then
being constructively terminated by OnGuard. (Id., ¶¶ 14, 18-21.)
However, Plaintiff fails to allege that he engaged in any protected activity or
a causal link between the protected activity and OnGuard’s actions.
The
demurrer is sustained.
5.
4th Cause of Action – Failure to Prevent
Discrimination, Harassment, and Retaliation in Violation of FEHA
The elements of a cause of action for failure to
prevent discrimination, harassment, or retaliation are: (1) actionable
discrimination, harassment, or retaliation by employees or nonemployees; (2)
defendant’s legal duty of care toward plaintiff (i.e., defendant is the
plaintiff’s employer); (3) breach of that duty (i.e., failure to take all
reasonable steps necessary to prevent discrimination, harassment, or
retaliation from occurring); (4) legal causation; and (5) damages to plaintiff.
(Trujillo v. North County Transit District (1998) 63 Cal.App.4th 280,
287, 289; Bradley v. Department of Corrections & Rehabilitation
(2008) 158 Cal.App.4th 1612, 1630; Gov. Code, § 12940.)
The court finds that Plaintiff sufficiently
alleges a cause of action for failure to prevent discrimination against
OnGuard. Plaintiff alleges that Gracelight discriminated against him due to
Plaintiff’s age; that OnGuard was Plaintiff’s employer, that OnGuard failed
to take reasonable steps to prevent Gracelight’s discrimination, and that
due to OnGuard’s actions Plaintiff suffered damages. (FAC, ¶¶ 10, 12, 14-17,
27-28, 57.) However, the court finds that Plaintiff fails to allege a cause of
action for failure to prevent harassment and retaliation against OnGuard for
the same reasons as above.
The
demurrer is sustained in part and overruled in part.
6.
5th Cause of Action – Wrongful Discharge
of Employment 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.” (Nosal-Tabor v. Sharp Chula Vista Medical Center
(2015) 239 Cal.App.4th 1224, 1234, citation omitted.)
The court finds that Plaintiff sufficiently
alleges a cause of action for wrongful discharge. Plaintiff alleges that
OnGuard was his employer, that OnGuard constructively terminated his employment
by failing to communicate and provide Plaintiff with a new position, that OnGuard
discharged Plaintiff due to his age, and that Plaintiff suffered damages. (FAC,
¶¶ 10, 12, 14-21, 27-28, 61.)
The demurrer is overruled.
III. Motion to Strike
A.
Legal Standard
Pursuant to
Code of Civil Procedure section 436, “the court may, upon a motion made
pursuant to Section 435, or at any time in its discretion, and upon terms it
deems proper: (a) Strike out any irrelevant, false, or improper matter inserted
in any pleading. (b) 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.” The grounds for a motion to strike must “appear on the face of the
challenged pleading or from any matter of which the court is required to take
judicial notice.” (Code Civ. Proc., § 437.)
B.
Discussion
1.
Request for Judicial Notice
Plaintiff’s Request for Judicial Notice is granted. “A
court may properly take judicial notice of its own records. (Evid. Code, § 452,
subd. (e).)” (Garcia v. Sterling (1985) 176 Cal.App.3d 17, 21.)
2.
Punitive Damages
Defendant
OnGuard Inc. (“OnGuard”) seeks to
strike Plaintiff’s allegations and request regarding punitive damages as
follows:
1.
Paragraph 29: “Defendants’ conduct
constitutes oppression, fraud, and/or malice under California Civil Code
section 3294 and, thus, entitles plaintiff to an award of exemplary and/or
punitive damages.”
2.
Paragraph 30:
“Defendants’ conduct was committed with malice within the meaning of California
Civil Code section 3294, including that (a) defendants acted with intent to
cause injury to plaintiff and/or acted with reckless disregard for plaintiff’s
injury, including by terminating plaintiff’s employment and/or taking other
adverse job actions against plaintiff because of his age, disability, medical
leave, national origin, and/or good faith complaints, and/or (b) defendants’
conduct was despicable and committed in willful and conscious disregard of
plaintiff’s rights, health, and safety, including plaintiff’s right to be free
of discrimination, harassment, retaliation, abuse of the requirements of
accommodation and engaging in the interactive process, and wrongful employment
termination.”
3.
Paragraph 31: In
addition, and/or alternatively, defendants’ conduct was committed with
oppression within the meaning of California Civil Code section 3294, including
that defendants’ actions against plaintiff because of his age, disability,
medical leave, national origin, and/or good faith complaints were “despicable”
and subjected plaintiff to cruel and unjust hardship, in knowing disregard of
plaintiff’s rights to a work place free of discrimination, harassment,
retaliation, abuse of the requirements of accommodation and engaging in the
interactive process, and wrongful employment termination.”
4.
Paragraph 32: “In
addition, and/or alternatively, defendants’ conduct, as alleged, was fraudulent
within the meaning of California Civil Code section 3294, including that
defendants asserted false (pretextual) grounds for terminating plaintiff’s
employment and/or other adverse job actions, thereby to cause plaintiff
hardship and deprive him of legal rights.”
5.
Paragraph 41:
“Defendant’s misconduct was committed intentionally, in a malicious,
despicable, oppressive manner, entitling Plaintiff to punitive damages against
Defendant.”
6.
Paragraph 45: “Defendants’
misconduct was committed intentionally, in a malicious, despicable, oppressive,
fraudulent manner, entitling Plaintiff to punitive damages against Defendants.
Plaintiff has incurred and continues to incur legal expenses and attorneys’
fees.”
7.
Paragraph 54: “Defendants’
misconduct was committed intentionally, in a malicious, despicable, oppressive
manner, entitling Plaintiff to punitive damages against Defendants.”
8.
Paragraph 64:
“Defendants’ wrongful termination of Plaintiff’s employment was done
intentionally, in a malicious, fraudulent, oppressive manner, entitling
Plaintiff to punitive damages.”
9.
Prayer, Paragraph
f: “For punitive damages, according to proof;”
Punitive damages may be awarded in
an action for the breach of an obligation not arising from contract upon clear
and convincing evidence that a defendant has been guilty of oppression, fraud,
or malice. (Civ. Code § 3294, subd. (a).)
“Malice” is defined as “conduct
which is intended by the defendant to cause injury to the plaintiff or
despicable conduct which is carried on by the defendant with a willful and
conscious disregard of the rights or safety of others.” (Civ. Code § 3294, subd.
(c)(1).) “Oppression” is defined as “despicable conduct that subjects a person
to cruel and unjust hardship in conscious disregard of that person’s rights.”
(Civ. Code § 3294, subd. (c)(2).) “Fraud” is defined as “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.” (Civ. Code §
3294, subd. (c)(3).)
The court finds that Plaintiff
fails to allege sufficient facts to warrant punitive damages. Plaintiff alleges
that OnGuard removed him from his post, failed to provide him a new position,
and constructively terminated his employment. (FAC, ¶¶ 14, 18-21.) In support of Plaintiff’s request for punitive
damages, Plaintiff alleges that Defendant’s conduct was done in a malicious, despicable, oppressive,
fraudulent manner. (Id., ¶¶ 29-32, 41, 45, 54, 64.) Without nothing
more, the court does not find that Defendant’s alleged conduct rises to the
level of malice or oppression required for punitive damages. Moreover,
Plaintiff’s conclusory allegations, devoid of any factual assertions, are
insufficient to support a conclusion that parties acted with oppression, fraud
or malice. (Smith v. Superior Court (1992) 10 Cal.App.4th 1033,
1042.)
The motion is granted.
IV. Conclusion
1. Defendant
OnGuard Inc.’s Demurrer is SUSTAINED in part as to the first, second, third,
and fourth causes of action and OVERRULED in part as to the fourth and fifth
causes of action.
2. Defendant
OnGuard Inc.’s Motion to Strike is GRANTED.
The court will inquire at the hearing whether leave to
amend should be granted.