Judge: Peter A. Hernandez, Case: 24STCV32121, Date: 2025-04-04 Tentative Ruling
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Case Number: 24STCV32121 Hearing Date: April 4, 2025 Dept: 34
Defendants Hilton Hotels
Corporation, Fortuna Enterprise, Sue Trobaugh, and Jeff Ragonese’s Demurrer to
Plaintiff’s Complaint is OVERRULED as to the first through fifth causes of
action and SUSTAINED as to the sixth and seventh causes of action.
The court will inquire whether leave to amend should
be granted at the hearing.
Background
On December 5, 2024, Plaintiff Criss
Draper (“Plaintiff”) filed a complaint against Defendants Hilton Hotels Corporation, Fortuna Enterprise, Sue
Trobaugh, and Jeff Ragonese (“Defendants”) arising from Plaintiff’s employment
with Defendants alleging causes of action for:
1.
Disability
Discrimination (Cal. Gov't Code § 12940(a));
2.
Retaliation for
Requesting Reasonable Accommodation (Cal. Gov't Code § 12940(m)(2)) and Cal.
Labor Code §§ 1102.5 & 1102.6);
3.
Failure to Take
All Reasonable Steps to Prevent Discrimination (Cal. Gov't Code § 12940(k));
4.
Failure to
Accommodate (Cal. Gov't Code § 12940(m)(1));
5.
Failure to Engage
in The Good Faith Interactive Process (Cal. Gov't Code § 12940(n));
6.
Harassment Based on
Disability (Cal. Gov't Code § 12940 et seq.); and
7.
Defamation.
On
February 28, 2025, Defendants filed this Demurrer to Plaintiff’s complaint. On
March 10, 2025, Plaintiff filed an opposition. On March 18, 2025, Defendants
filed a reply.
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).
Discussion
Defendants demur, pursuant to Code of Civil Procedure section 430.10(e),
to Plaintiff’s complaint, on the basis that Plaintiff fails to state facts
sufficient to constitute causes of action.
1st Cause of
action – Disability Discrimination
“A prima facie case of disability discrimination under 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 adverse
employment action because of the disability.” (Castro-Ramirez v. Dependable
Highway Express, Inc. (2016) 2 Cal.App.5th 1028, 1037.)
The court finds that the complaint alleges
a prima facie claim that Plaintiff was subjected to an adverse employment
action on the basis of a protected characteristic.
Plaintiff alleges that he suffered from
a disability to his lungs and respiratory system. (Complaint, ¶ 27.) Plaintiff also alleges that
he was discriminated against when Defendants withdrew the accommodation that
was previously granted based on his disability and required Plaintiff to take
leave of absence as he was considered a “liability.” (Id.,
¶¶ 18, 25.)
This removal of accommodations
and requirement to take involuntary leave falls under an adverse employment action. “FEHA
‘protects an employee against unlawful discrimination with respect . . . to . .
. the entire spectrum of employment actions that are reasonably likely to
affect an employee’s job performance or opportunity adversely and materially
for advancement in his or her career.’” (Guz v. Bechtel National, Inc.¿(2000)
24 Cal.4th 317, 355, quoting Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028.)
Defendants’ removal of
Plaintiff’s accommodation despite Plaintiff’s ability to return to work with
accommodations according to Plaintiff’s doctor sufficiently alleges that there
was a causal link between Plaintiff’s disability and the adverse employment
actions. (Complaint, ¶
24.)
Nevertheless,
Defendants argue that Plaintiff’s first cause of action fails as it alleges
that Plaintiff was discriminated against by Defendants’ failure to accommodate
him and for failing to seek a reasonable interactive process, which constitute
separate causes of action. (Demurrer, at p. 4; Complaint, ¶ 32.) However, as
explained above, Plaintiff has sufficiently alleged an adversary employment
action due to his disability to constitute a viable claim for discrimination.
For
these reasons, the court overrules Defendants’ demurrer to Plaintiff’s first
cause of action.
2nd Cause of
Action – Retaliation for Requesting Reasonable Accommodation
To
establish a prima facie case of retaliation in violation of FEHA, a plaintiff
must show he engaged in a protected activity, his employer subjected him to an
adverse employment action, and a causal link exists between his protected
activity and the employer's action.” (Pinero v. Specialty Restaurants Corp.
(2005) 130 Cal.App.4th 635, 639, citing Iwekaogwu v. City of Los Angeles
(1999) 75 Cal.App.4th 803, 814–815.)
The court finds that Plaintiff has sufficiently pled
retaliation as Plaintiff alleges that he requested that Defendants provide a
reasonable accommodation for Plaintiff’s disability after being placed on leave
and removing his previous accommodations. (Complaint, ¶¶ 18, 22, 24, 25, 26.) Plaintiff
also alleges that his doctor stated that Plaintiff could return to work with
accommodations. (Ibid.) Lastly, Plaintiff alleges that Defendants
retaliated by placing Plaintiff on involuntary leave and would be terminated
because of his disability. (Id., ¶¶ 46-50.)
For
these reasons, the court overrules Defendants’ demurrer to Plaintiff’s second
cause of action.
3rd Cause of
Action – Failure to Take All Reasonable Steps to Prevent Discrimination
An employer must make all
reasonable steps to prevent to discrimination from occurring. (Gov. Code §
12940(k).) To recover damages based on a claim of failure to prevent
discrimination, the plaintiff must show: (i) she was subject to discrimination;
(ii) her employer failed to take all reasonable steps to prevent
discrimination; and (iii) the employer’s failure caused her to suffer injury. (Adetuyi
v. City and County of San Francisco (N.D. Cal. 2014) 63 F.Supp.3d 1073,
1092; Gov. Code § 12940(k).)
As discussed above, Plaintiff
has plead sufficient facts to show Defendants discriminated against him, that Defendants
failed to take all reasonable steps to prevent discrimination, and that this
failure caused Plaintiff’s injury. (Complaint, ¶¶ 18, 22, 24, 25, 26.)
For
these reasons, the court overrules Defendants’ demurrer to Plaintiff’s third
cause of action.
4th Cause of
Action – Failure to Accommodate
Under Government Code section 12940, it is an unlawful
employment practice “to fail to make reasonable accommodation for the known
physical or mental disability of an applicant or employee” unless the employer
demonstrates doing so would impose an undue hardship. “The essential elements
of a failure
to accommodate
claim are: (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.” (Wilson v. County of Orange
(2009) 169 Cal.App.4th 1185, 1192.)
The court has noted that Defendants failed to
reasonable accommodate Plaintiff despite Plaintiff’s doctor stating that he
could return to work with accommodations. (Complaint, ¶¶ 18, 22, 24, 25, 26.)
Accordingly, the court overrules Defendants’ demurrer to Plaintiff’s fourth cause of action.
5th Cause of
Action – Failure to Engage in The Good Faith Interactive Process
“To prevail on a claim…for failure to engage in the
interactive process, an employee must identify a reasonable accommodation that
would have been available at the time the interactive process should have
occurred.” (Scotch v. Art Institute of California (2009) 173 Cal.App.4th
986, 1018.)
Again, Plaintiff clearly
alleges that he requested reasonable accommodations which Defendants denied
placing Plaintiff on involuntary leave. (Complaint,
¶¶ 18, 22, 24, 25, 26.) Accordingly,
Plaintiff has met his burden at this stage.
The court overrules Defendants’ demurrer to Plaintiff’s fifth cause of action.
6th Cause of
Action – Harassment Based on Disability
“To establish a prima facie case of unlawful
harassment under FEHA, a plaintiff must show ‘(1) he was a member of a
protected class; (2) he was subjected to unwelcome [harassment]; (3) the
harassment was based on [the plaintiff's membership in an enumerated class];
(4) 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.’” (Martin v. Board of Trustees of
California State University (2023) 97 Cal.App.5th 149, 170.)
Harassment involves verbal, physical, visual and/or sexual
conduct that creates a hostile or offensive working environment. (Cal. Code
Regs., tit. 2, § 11019(b).) 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 sufficiently
allege that Defendants’ conduct was severe and pervasive going beyond a mere
negative employment decision. Plaintiff conclusively alleges that Defendants’
conduct was severe and pervasive without any additional factual allegations.
(Complaint, ¶ 91.)
Accordingly, the court sustains Defendants’ demurrer to Plaintiff’s sixth cause of action.
7th Cause of
Action – Defamation
“The elements of a defamation claim are (1) a publication that is (2) false, (3) defamatory,
(4) unprivileged, and (5) has a natural tendency to injure or causes special
damage. The defamatory statement must specifically refer to, or be of and
concerning, the plaintiff.” (John Doe 2 v. Superior Court (2016) 1
Cal.App.5th 1300, 1312 [quotation marks and citation omitted].)
Defamation law distinguishes between statements of fact and statements of opinion with the latter receiving constitutional
protection. (Medical Marijuana, Inc. v. ProjectCBD.com (2020) 46
Cal.App.5th 869, 884.) “A statement is not defamatory
unless it can reasonably be viewed as declaring or implying a provably false
factual assertion [Citation], and it is apparent from the ‘context and tenor’
of the statement ‘that the [speaker] seriously is maintaining an assertion of
actual fact.’” (Carver v. Bonds (2005) 135 Cal.App.4th 328, 344, quoting
Weller v. American Broadcasting Companies., Inc. (1991) 232 Cal.App.3d
991, 1000–1001.)
The court finds that Plaintiff fails to sufficiently
allege that Defendants made defamatory statements going beyond an opinion. Plaintiff’s defamation claim is premised on the
allegation that Defendants made
statements and issued a publication on February 9, 2024, that Defendants could
no longer accommodate Plaintiff’s restrictions, and that Plaintiff would need
to go out on disability as he is considered a liability. (Complaint, ¶ 103.) Plaintiff also alleges that Defendants stated that Plaintiff could not
return to work until he was “100% better." (Ibid.) Lastly,
Plaintiff alleges that on February 16, 2024, Defendants stated that Plaintiff
"didn't handle the bomb threat properly because [Plaintiff was] on
medication." (Id., ¶ 104.)
Such statements could be considered statements of opinion rather than factual
assertion.
Accordingly, the court sustains Defendants’ demurrer to Plaintiff’s seventh cause of action.
Conclusion
Defendants
Hilton Hotels Corporation, Fortuna Enterprise, Sue Trobaugh, and Jeff
Ragonese’s Demurrer to Plaintiff’s Complaint is OVERRULED as to the first
through fifth causes of action and SUSTAINED as to the sixth and seventh causes
of action.
The
court will inquire whether leave to amend should be granted at the hearing.