Judge: Randolph M. Hammock, Case: 22STCV03772, Date: 2022-10-28 Tentative Ruling
Case Number: 22STCV03772 Hearing Date: October 28, 2022 Dept: 49
Lizeth Saenz v. Therapak, LLC, et al.
(1) DEFENDANT VWR FUNDING, INC.’S DEMURRER TO FIRST AMENDED COMPLAINT
(2) DEFENDANT VWR GLOBAL HOLDINGS, INC.’S DEMURRER TO FIRST AMENDED COMPLAINT
(3) DEFENDANT VWR INTERNATIONAL, LLC’S DEMURRER TO FIRST AMENDED COMPLAINT
(4) DEFENDANT AVANTOR PERFORMANCE MATERIALS, INC.’S DEMURRER TO FIRST AMENDED COMPLAINT
(5) DEFENDANT AVANTOR PERFORMANCE MATERIALS, LLC’S DEMURRER TO FIRST AMENDED COMPLAINT
MOVING PARTY: Defendants VWR Funding, Inc.; VWR Global Holdings, Inc.; VWR International, LLC; Avantor Performance Materials, Inc.; Avantor Performance Materials, LLC
RESPONDING PARTY(S): Plaintiff Lizeth Saenz
STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:
This is an employment case. Plaintiff Lizeth Saenz alleges her employers wrongfully terminated her employment when she became pregnant and prepared for leave. The First Amended Complaint includes eleven causes of action asserting various torts and violations of the Government Code.
Certain Defendants now demur to all eleven causes of action in the First Amended Complaint. [FN 1] Plaintiff opposed.
Additionally, for some strange and unexplained reason, Defendant Therapak has somehow seen fit to file five (5) separate “reply” pleadings to the five (5) separate demurrers filed by its co-defendants. Huh? In what topsy-turvy, fantasy litigation world is this allowed? Therapak is NOT one of the demurring parties, is it? Why does it get to unilaterally file a reply to the each of the five oppositions filed by the Plaintiffs to demurrers in which Therapak is not directly involved?
Counsel for Therapak should calmly reflect upon this point. What right or standing did Therapak have to file such a reply? The answer to this query is of course clear: None. [FN 2]
Be that as it may, this Court did read and consider each of the reply papers, as though it was actually filed on behalf of each of the respective demurring defendants.
TENTATIVE RULING:
Defendants’ Demurrers are OVERRULED in their entirety. Defendants are to file Answers only to the FAC within 21-days.
DISCUSSION:
Demurrer
I. Meet and Confer
The Declaration of Attorney Melissa J. Fassett, Counsel for Defendants, reflects that the meet and confer requirement was satisfied. (CCP § 430.41.)
II. Legal Standard
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. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal. App. 4th 1216, 1228.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or by proper judicial notice. (CCP § 430.30(a).) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. (SKF Farms v. Superior Court (1984) 153 Cal. App. 3d 902, 905.) Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (Id.) The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action. (Hahn, 147 Cal.App.4th at 747.)
III. Analysis
As a preliminary matter, the court notes that the instant demurrers are the second round of demurrers in this case. The First Demurrer, filed by Defendant Therapak against the Complaint, was sustained without leave to amend, as to causes of action for (1) breach of oral contract and (2) negligent hiring, supervision, and retention. When ruling on Therapak’s demurrer, the court respectfully expressed its opinion that the case was over-plead. In response, Plaintiff filed a First Amended Complaint omitting the two causes of action which were sustained, but otherwise, it appears mostly unmodified.
So round two begins. Suffice it to state, many of the causes of action pled in this case are still duplicative and/or already covered by other causes of action. Be that as it may, at least for pleading purposes, this court finds the FAC is sufficient.
A. Allegations Against Each Moving Defendant
The core of each Defendants’ demurrer is that the FAC cannot stand as to each moving Defendant because they were not Plaintiff’s employers. For context, Plaintiff’s original Complaint named nine different entities, and alleged that each of them employed her. Three of those named Defendants moved to quash service of summons, arguing they had no relation to this litigation. Indeed, it was revealed that Plaintiff could not show that those Defendants had any relationship to Plaintiff or the other Defendants, beyond the fact that they shared similar names.
Based on this backdrop, this court is respectfully skeptical that each of the five moving Defendants were, in fact, Plaintiff’s “employers.” Be that as it may, “ [a] demurrer accepts as true all well pleaded facts” in the FAC. (Fox v. JAMDAT Mobile, Inc., 185 Cal. App. 4th 1068, 1078.) As currently pled, the FAC alleges that all Defendants were the employer of Plaintiff. It further alleges that each defendant “compelled, coerced, aided, and/or abetted the discrimination, retaliation, and harassment alleged,” and that all Defendants are alter egos of one another. (FAC ¶ 4.) Alter ego allegations may be pled generally, and the principal factors for piercing the corporate veil—individual dominated the affairs of the corporation, unity of interest and ownership, corporation is a mere shell, diversion of income, inadequate capitalization, failure to issue stock and observe corporate formalities, adherence to fiction of separate corporate existence would work an injustice—may be alleged in conclusory terms. (First Western Bank & Trust Co. v. Bookasta (1968) 267 Cal.App.2d 910, 914-916.)
Whether the facts alleged are true or not—and ultimately whether each Defendant employed Plaintiff—will necessarily require fact-finding that cannot be resolved when ruling on this demurrer. At this stage, Defendants have provided nothing outside of the four corners of the FAC (or facts of which this Court could take judicial notice) to negate the allegations in the FAC. Undoubtedly, the Defendants—all of whom share counsel—are well-aware of Therapak’s corporate structure and can determine what relationship exists between the entities, if any. This court can only speculate. Thus, for pleadings purposes, Plaintiff has alleged that each Defendant was her employer, and that each Defendant is the alter ego of the others. This conclusion extends to each allegation and cause of action in the FAC.
With that said, the court is optimistic that the parties will meaningfully meet-and-confer to determine which Defendant(s) actually employed Plaintiff so to avoid a needless (and ultimately fruitless) battle—and that Plaintiff will enter dismissals of the Defendants accordingly.
B. First Cause of Action (FEHA Discrimination) and Seventh Cause of Action (Failure to Prevent Discrimination, Harassment, or Retaliation)
Defendants argue the discrimination claims [FN 3] fail because Plaintiff has not adequately pled a “discriminatory motive” for her termination. As cited by Defendants, to plead discrimination, “[g]enerally, the plaintiff must provide evidence that (1) [she] was a member of a protected class, (2) [she] was qualified for the position he sought or was performing competently in the position he held, (3) [she] 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 Nat. Inc. (2000) 24 Cal. 4th 317, 355.)
The allegations common to all causes of action remain as follows: Plaintiff worked for Defendants as a “manager in the Quality Assurance/Manufacturing Department” and “performed her job duties in an exemplary manner.” (FAC ¶¶ 11-12.) Plaintiff is a Hispanic female who became pregnant during her employ and suffered complications during her pregnancy. (Id. ¶ 13.) The complications required Plaintiff take protected leave under the California Family Rights Act. (Id.)
Plaintiff further alleges that “on or around May 17, 2021, Defendants began inquiring about Plaintiff’s upcoming maternity leave. Plaintiff felt like Defendants were asking her inappropriate questions regarding her pregnancy. Additionally, some of Plaintiff’s co-workers requested Plaintiff to compile a list of her day-to-day job responsibilities and to share it with them.” (Id. ¶ 14(l).) Plaintiff started to suspect Defendants planned to terminate her employment. (Id.) However, Plaintiff’s superior assured her “this is just to prepare for your maternity leave.” (Id. ¶ 14(m).)
On June 3, 2021, Defendants summoned Plaintiff to the Human Resources Department, where they instructed her that she was being terminated for “falsification of documents.” (Id. ¶ 14(o).) Plaintiff alleges this “falsification of documents” explanation was based on an issue that occurred months prior, in which Plaintiff was tasked with updating licensing documents with the California Board of Pharmacy. (Id. ¶ 14(b)-(k).) Plaintiff denies she falsified any documents, and contends this explanation was pretextual “since Defendants wanted to terminate her instead of having to deal with her schedule [sic] pregnancy/maternity leave that was coming up in one month.” (Id. ¶ 14(o).)
Thus, reading the Complaint “liberally and in context,” the court concludes once again that Plaintiff has sufficiently pled that (1) she was a member of a protected class, (2) that she was performing competently in her position, (3) that she suffered an adverse employment action, and (4) a circumstance suggesting discriminatory motive. (Taylor, 144 Cal. App. 4th at 1228.)
Accordingly, Defendants’ Demurrers to the First and Seventh Causes of Action are OVERRULED.
C. Demurrers to Second Cause of Action (Retaliation in Violation of FEHA)
Defendants argue the retaliation claims fail because Plaintiff has not pled any retaliation. “[T]o 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.” (Cornell v. Berkeley Tennis Club (2017) 18 Cal. App. 5th 908, 942.)
The Complaint alleges that Plaintiff engaged in protected activity by informing Defendants of her pregnancy and requesting leave. (FAC ¶ 14(l).) Moreover, instead of accommodating Plaintiff’s pregnancy, Defendants terminated Plaintiff approximately one month before she was set to take her pregnancy leave. (Id. ¶ 14(n)-(o).) This is sufficient for pleadings purposes to state all elements of the claim for FEHA retaliation.
Accordingly, Defendants’ Demurrers to the Second Cause of Action are OVERRULED.
D. Demurrers to Claims Tied to Disability (Third, Fourth, Fifth, and Sixth Causes of Action)
Defendants argue Plaintiff has not adequately pled facts to support these claims as to each Defendant. In order to allege a claim for disability discrimination or failure to accommodate, Plaintiff must show that she had a disability, that she was otherwise qualified to do her job, that her employer knew of her disability, and that her employer took action with discriminatory intent. (Avila v. Continental Airlines, Inc. (2008) 165 Cal.App.4th 1237, 1248-1249.)
Plaintiff has met these requirements. As explained above, Plaintiff has plead that she was pregnant and experienced complications, that she was qualified to do her job, that Defendants “inquired above her maternity leave,” and that she was terminated based on these circumstances. Plaintiff alleges Defendants fired her for taking or seeking CFRA leave. (FAC ¶¶ 13(a), 63.) This satisfies the pleading requirements.
Accordingly, Defendants’ Demurrers to the Third, Fourth, Fifth, and Sixth Causes of Action are OVERRULED.
E. Demurrers to Eighth Cause of Action (Breach of Implied-in-Fact Contract Not to Terminate)
Defendants argue that Plaintiff has not shown the existence of contract between her and each Defendant. A contractual agreement not to terminate except under certain circumstances may be implied-in-fact. (Guz, 24 Cal. 4th at 336–37.) The factors “that may bear upon ‘the existence and content of an ... [implied-in-fact] agreement’” include “the personnel policies or practices of the employer, the employee's longevity of service, actions or communications by the employer reflecting assurances of continued employment, and the practices of the industry in which the employee is engaged.” (Id.)
For the Eighth Cause of Action, Plaintiff alleges that “[o]n the basis of oral assurances of continued employment given to plaintiff by defendants’ supervisors, the length of plaintiff’s employment with defendants, defendants’ actual practice of terminating employment only for cause, and the industry standard for the business defendants engaged in of terminating employment only for cause, plaintiff and defendants shared the actual understanding that plaintiff’s employment could and would be terminated only for cause. This shared understanding resulted in an implied contract requiring that defendants have good cause to terminate plaintiff’s employment.” (FAC ¶ 85.)
The existence of an implied-in-fact agreement not to terminate will depend on “the totality of the circumstances” and “[e]very case thus turns on its own facts.” (Id. at 337.) Therefore, it is unlikely the court can resolve this issue on demurrer. At the very least, the pleading demonstrates a dispute of fact. Because Plaintiffs’ allegations must be accepted as true, the allegations are adequate.
Accordingly, Defendants’ Demurrers to the Eighth Cause of Action are OVERRULED.
F. Demurrers to Tenth Cause of Action (Intentional Infliction of Emotional Distress)
Defendants argue that Plaintiff has plead no facts supporting IIED. “To state a cause of action for intentional infliction of emotional distress a plaintiff must show: (1) outrageous conduct by the defendant; (2) the defendant's intention of causing or reckless disregard of the probability of causing emotional distress; (3) the plaintiff’s suffering severe or extreme emotional distress; and (4) actual and proximate causation of the emotional distress by the defendant's outrageous conduct.” (Yau v. Santa Margarita Ford, Inc. (2014) 229 Cal.App.4th 144, 160.)
The FAC includes allegations that when “Plaintiff was approximately three (3) months pregnant,” her “request for guidance and instructions went unanswered and her attempts to reach out to others around her department for help were unsuccessful.” (Id. at ¶ 14(j).) She felt that Defendants were “setting her up for failure.” (Id.) As Plaintiff’s maternity leave approached, Defendants “were asking her inappropriate questions regarding her pregnancy.” (Id. at ¶ 14(m).) Finally, the month before her pregnancy, Defendants fired Plaintiff. (Id. at ¶ 14(m).)
Based on the above conduct, the FAC asserts that “Defendants’ discriminatory, harassing, and retaliatory actions against plaintiff constituted extreme and outrageous misconduct and caused plaintiff severe emotional distress”; that “Defendants were aware that treating plaintiff in the manner alleged above, would devastate plaintiff and cause her extreme hardship”; that as “a proximate result of defendants’ extreme and outrageous conduct, plaintiff has suffered and continues to suffer severe emotional distress”; and that “as a proximate result of defendants’ extreme and outrageous conduct, plaintiff has suffered and continues to suffer humiliation, emotional distress, and mental and physical pain and anguish.” (FAC ¶¶ 97-100.)
Accepting the FAC’s allegations as true and in the light most favorable to Plaintiff, the Complaint sufficiently pleads facts for IIED.
Accordingly, Defendants’ Demurrers to the Tenth Cause of Action are OVERRULED.
G. Demurrers to Ninth Cause of Action (Violation of Business and Prof. Code § 17200) and Eleventh Cause of Action (Wrongful Termination in Violation of Public Policy)
Defendants argue the Ninth and Eleventh Causes of Action fail because “Plaintiff makes no attempt to plead any facts but simply refers back to the previous allegations” and the “causes of action are entirely derivative of” the other claims.
Business and Professions Code section 17200 defines “unfair competition” to include “any unlawful, unfair or fraudulent business act or practice....” “The scope of section 17200 is broad, encompassing ‘anything that can properly be called a business practice and that at the same time is forbidden by law.’ ... It governs ‘anti-competitive business practices’ as well as injuries to consumers, and has as a major purpose ‘the preservation of fair business competition.’” [Citations.] (Linear Tech. Corp. v. Applied Materials, Inc., (2007) 152 Cal. App. 4th 115, 133). Whether a practice violates the section “is generally a question of fact which requires ‘consideration and weighing of evidence from both sides’ and which usually cannot be made on demurrer.” [Citation]. (Id.)
Given the broad applicability of section 17200 and the requirement that a court “weigh[] evidence from both sides,” the demurrer is improper. Plaintiff has properly alleged facts, that if proven true, could violate section 17200. Defendants have cited no authority for their conclusory statement that the cause of action is duplicative of others. [FN 4]
To state a claim for wrongful discharge in violation of public policy, Plaintiff must allege (1) she was employed by Defendants, (2) that Defendants discharged her, (3) the alleged violation of public policy was a motivating reason for the discharge, and (4) the discharge caused her harm. (Haney v. Aramark Unif. Servs., Inc. (2004) 121 Cal. App. 4th 623, 641.)
Here, Plaintiff has alleged that she was employed by each Defendant (or conversely, that each Defendant is the alter ego of one another), that Defendants discharged her based on her pregnancy, and that she suffered harm. This is all that is necessary. Again, Defendants have cited no authority suggesting that the cause of action is duplicative of another.
Accordingly, Defendants’ Demurrers to the Ninth and Eleventh Causes of Action are OVERRULED.
Defendants’ Demurrers are OVERRULED in their entirety.
Moving party to give notice, unless waived.
IT IS SO ORDERED.
Dated: October 28, 2022 ___________________________________
Randolph M. Hammock
Judge of the Superior Court
FN 1 - Each of these Defendants filed a separate demurrer. Each defendant is represented by the same counsel, and it appears that the demurrers are largely identical to one another and do not advance arguments unique to any particular Defendant. The court will therefore address each in a single ruling. The discussion herein applies to each of the five separate demurrers.
FN 2 - Perhaps it is merely a “cut-and-paste” error that defendants’ counsel put “Attorney for Defendant, Therapak, LLC” on the first page of each of these replies. (The same error occurred when each of these demurrers were filed.) After all, counsel is wearing six hats in this case. Be that as it may, that possible typographical error doesn’t explain that when these reply pleadings were actually filed, defendants’ counsel also affirmatively indicated on the LASC e-filing system that said pleadings were being filed by “Defendant, Therapak. LLC,” and not any other defendant. (That was not the case when these demurrers were filed, as the e-filing system, as well as the pleading itself demonstrated that said demurrers were not being filed by Therapak) If defense counsel intends to represent all defendants in this case, they should be more careful in the future to have each pleading (as well as the entry to court’s e-filing system), accurately reflect the party-defendant who is filing that particular pleading. Point hopefully made and understood. Enough said.
FN 3 -Throughout this Tentative Ruling, this court groups the causes of action together in the same format that Defendants’ Demurrers do.
FN 4 - Of course, perhaps the Plaintiff should be careful for what she asks. It is certainly within the sound discretion of this Court to bifurcate the B&P 17200 cause of action and hear the injunctive relief request in the near future. That court trial may not end up in Plaintiff’s favor and could result in findings which negatively affect the other causes of action in this case. That possibility will be discussed at the CMC.
