Judge: Randolph M. Hammock, Case: 22STCV25640, Date: 2023-03-10 Tentative Ruling

Case Number: 22STCV25640    Hearing Date: March 10, 2023    Dept: 49

Tentative Ruling

Judge Randolph M. Hammock, Department 49

HEARING DATE:     March 10, 2023                                  TRIAL DATE:  Not set.

CASE:                         Kaden Sanchez v. Turner’s Operations, Inc., et al.

CASE NO.:                 22STCV25640

(1)   DEMURRER TO COMPLAINT

(2)   MOTION TO STRIKE

MOVING PARTIES:           Defendants Turner’s Operations, Inc., and Turner’s Outdoors, Inc.

RESPONDING PARTY(S): Plaintiff Kaden Sanchez

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

This is an employment case. Plaintiff Kaden Sanchez brings this action against his former employers Turner’s Operations, Inc., and Turner’s Outdoors, Inc., alleging Defendants fired him after he requested leave because he needed to care for his grandfather due to the effects of Coronavirus. Plaintiff brings causes of action for (1) disability discrimination, (2) failure to take reasonable steps to prevent discrimination, (3) retaliation in violation of Government Code § 12940(h), (4) retaliation in violation of Labor Code § 1102.5, (5) wrongful termination in violation of public policy, (6) intentional infliction of emotional distress, and (7) violation of the UCL.

Defendants now demur to each cause of action in the Complaint and move to strike portions therein. Plaintiff opposed.

TENTATIVE RULING:

            Defendants’ Demurrer to the Complaint is SUSTAINED in its entirety.  Whether leave to amend is granted on any of these causes of action depends on whether Plaintiff is able to make a sufficient offer of proof at the hearing that demonstrates there is a reasonable probability that a successful amendment could be made consistent with this ruling.

            Defendants’ Motion to Strike is MOOT.

Moving party to give notice.

DISCUSSION:

Demurrer

I.                    Meet and Confer

            The Declaration of Attorney Trevor D. Debus reflects that the meet and confer requirement was met. (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

A.    Allegations in the Complaint

Plaintiff alleges he worked for Defendants—who operate a hunting, shooting, and fishing retail store—as an hourly employee from “approximately November 10, 2017, through May 19, 2020.” (Compl. ¶¶ 8, 9.) Early into the Covid-19 pandemic, “Plaintiff requested a leave of absence from Defendants due to high risk from the Coronavirus. Defendants granted Plaintiff leave from March 22, 2020 until April 11, 2020.” (Id. ¶ 12.)

With the end of his leave approaching, “[o]n April 1, 2020, Plaintiff emailed Defendants’ Human Resources Manager, Kaitlin Staidl (“Staidl”), asking if he could extend his leave of absence if the Coronavirus pandemic became worse.” (Id. ¶ 13.) On April 9, 2020, Defendants offered Plaintiff two additional weeks of a Personal Leave of Absence, marking Plaintiff’s return date as May 4, 2020. (Id. ¶ 14.)

On April 16, 2020, Plaintiff notified Staidl that he had taken an antibody test which came back positive, asking what he needed to do about work. Staidl replied that they would need to wait for a further test result, and that if he tested positive they would “gather a timeline of two weeks and figure out an estimated return date from there.” (Id. ¶ 16.) On April 23, 2020, Plaintiff notified Staidl that he didn’t have test results yet, but that he had been in constant contact with his sister and grandmother, who had tested positive, and that his grandfather was sent to the intensive care unit. (Id. ¶ 17.) “Plaintiff indicated that he felt uncomfortable going back into work until his family had recovered…[and] stated that he did not want to risk infecting others at work.” (Id.) In response, on April 27, 2020, Defendants agreed to extend Plaintiff’s leave of absence to May 15, 2020.

“In early May of 2020, Plaintiff requested additional leave because he needed to care for his grandfather due to the effects of Coronavirus.” (Id. ¶ 19.) “On May 11, 2020, Staidl informed Plaintiff that they were unable to approve any additional time off or leave, and that if he was not able to return to work on May 15, his employment would be terminated.” (Id. ¶ 20.) “Plaintiff responded that his grandfather had become completely immobile and that he needed to care for him 24 hours a day, and that he would provide a doctor’s note.” “Staidl reiterated the position that if Plaintiff did not return to work on May 15, he would be terminated,” and “made no offer of any accommodation to Plaintiff.” (Id. ¶ 23.) “On May 14, 2020, Staidl emailed Plaintiff indicating that “Turner’s is making a decision to separate employment because you are unable to return on our original return date of 5/15/2020.” (Id. ¶ 24.) Plaintiff’s termination became effective May 19, 2020. (Id. ¶ 25.)

B.     Demurrer to First Cause of Action (Disability Discrimination)

Defendant demurs to the first cause of action for disability discrimination, arguing that Plaintiff fails to plead facts that he suffered from any disability, or that either Defendant regarded him as suffering from a disability. Rather, “Plaintiff's Complaint alleges that he was terminated because he sought to stay home to take care of a grandparent who had been sent to an intensive care unit.” (Dem. 10: 11-14.)

In opposition, Plaintiff contends he “sufficiently alleged in his complaint that he was initially provided leave by Defendants due to ‘high risk’ from COVID-19…that he had tested positive and was in constant contact with other individuals in his family that had contracted COVID-19, and that he was concerned he would carry the virus between his coworkers and his family, putting everyone involved at risk.” (Opp. 4: 7-11.) He contends these allegations “are sufficient at this stage to allege that he suffered from…[or that Defendants] perceived him to be suffering from a disability.” (Opp. 4: 11-17.)

To establish a prima facie case of FEHA discrimination, a plaintiff must provide evidence 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.”  (Dinslage v. City & Cty. of San Francisco (2016) 5 Cal. App. 5th 368, 378.) “ ‘Because the FEHA is remedial legislation, which declares “[t]he opportunity to seek, obtain and hold employment without discrimination” to be a civil right (§ 12921), and expresses a legislative policy that it is necessary to protect and safeguard that right (§ 12920), the court must construe the FEHA broadly, not ... restrictively. Section 12993, subdivision (a) directs: “The provisions of this part shall be construed liberally for the accomplishment of the purposes thereof.”  (Vernon v. State of California (2004) 116 Cal. App. 4th 114, 123.)

 “ ‘[T]he touchstone of a qualifying [physical] disability is an actual or perceived physiological disorder which affects a major body system and limits the individual's ability to participate in one or more major life activities.’ [Citation.]” (Bagatti v. Department of Rehabilitation (2002) 97 Cal.App.4th 344, 353–354.) A Plaintiff “cannot pursue a cause of action for discrimination under FEHA on the basis of his ‘actual’ physical disability in the absence of factual allegations that he was in fact, physically disabled.” (Rope v. Auto-Chlor Sys. of Washington, Inc. (2013) 220 Cal. App. 4th 635, 659.)

Here, the Complaint alleges that “Plaintiff was a member of a group protected by the statute, in particular, section 12940(a), prohibiting discrimination in employment based on disability.” (Compl. ¶ 27.) However, as Defendants correctl argues, the Complaint lacks allegations that Plaintiff suffered or was believed to suffer from any disability. While Plaintiff pleads the legal conclusion that he suffered from a disability (or that Defendants believed he did), he pleads no facts supporting that position.  This court is mindful of its duty to accept as true all well-pleaded facts for purposes of a demurrer, however, it does not admit contentions, deductions, or conclusions of law.  (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

Plaintiff alleges only that he started his leave “due to high risk from the Coronavirus.” (Compl. ¶ 12 [emphasis added].)  Indeed, even the most liberal reading of the Complaint suggests that Plaintiff was in contact with family members infected with Covid-19 and that Plaintiff may have been exposed to Covid-19 at some point. (Id. ¶¶ 16, 17.) He alleges he informed Staidl on April 16, 2020, “that he had taken an antibody test which came back positive,” and was awaiting the results of a second test to confirm. (Id.)

Flatly, however, the Complaint lacks allegations that Plaintiff suffered from or had complications from Covid-19 or some other qualifying disability.  At most, Plaintiff believed he was infected in on or about April 16, 2020, and it appears from the allegations that Defendants did, in fact, give him the leave he requested. (Id. ¶ 16.) Then, during that subsequent leave, “he requested additional leave because he needed to care for his grandfather due to the effects of Coronavirus,” who had become “completely immobile” and needed 24-hour care. (Id. ¶ 21.) Defendants denied that request, and informed Plaintiff he would be terminated if he did not return on May 15, 2020, at the conclusion of that leave. (Id. ¶ 23.) When Plaintiff did not return, Defendants terminated him. (Id. ¶ 25.) Thus, reading the Complaint liberally and in context, Plaintiff fails to allege that he suffered from a disability that resulted in his termination.

Accordingly, Defendants’ Demurrer to the First Cause of Action is SUSTAINED.

C.     Demurrer to Second Cause of Action (Failure to Prevent Discrimination)

Defendants argue this claim fails with the first cause of action.  Indeed, “courts have required a finding of actual discrimination or harassment under FEHA before a plaintiff may prevail under section 12940, subdivision (k)” for failure to prevent discrimination. (Dickson v. Burke Williams, Inc., (2015) 234 Cal. App. 4th 1307, 1314.) 

As Plaintiff has not alleged facts supporting discrimination, the cause of action for failure to prevent the same also fails.

Accordingly, Defendants’ Demurrer to the Second Cause of Action is SUSTAINED.

D.    Demurrer to Third Cause of Action (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.)

Defendants argue the only “protected activity” alleged in the Complaint is that Plaintiff notified Defendants of his “disability.” (Dem. 11: 1-13.)

In opposition, Plaintiff contends his allegations are “sufficient to apprise Defendants that Plaintiff had a good faith belief that they were asking him to engage in conduct that was discriminatory to him and others at high risk for COVID-19, and Defendants provided him with an ultimatum to return to work or be terminated.” (Opp. 6: 10-12.)

            Here, Plaintiff does not allege a protected activity, nor does he allege a causal link between his protected activity and his adverse employment action.  Rather, Plaintiff alleges only that Defendants terminated him because he had to care for his grandfather with Coronavirus. As pled, the alleged retaliation appears attributable to this fact alone, but not because of any legitimate protected activity.

            Accordingly, Defendants’ Demurrer to the Third Cause of Action is SUSTAINED.

E.     Demurrer to Fourth Cause of Action (Retaliation)

Defendants argue Plaintiff has failed to allege “what state or federal law, or local, state, or federal rule or regulation that Defendants ‘violated’ by refusing to let him continue refrain from working.” (Dem. 11: 24-25.)

Plaintiff alleges Defendants terminated him “as a result of [his] family medical leave and disability accommodation requests.” (Compl. ¶ 44.)

Plaintiff’s claim is based on Labor Code section 1102.5(c), which prohibits employers from retaliating against an employee “for refusing to participate in an activity that would result in a violation of state or federal statute, or a violation or noncompliance with a state or federal rule or regulation.” (§ 1102.5(c).)  To make a prima facie case, a plaintiff “must show that he or she was subjected to adverse employment action after engaging in protected activity and that there was a causal connection between the two. [Citation.].” (Edgerly v. City of Oakland (2012) 211 Cal. App. 4th 1191, 1199.) Protected activity is the disclosure of or opposition to “a violation of state or federal statute, or a violation or noncompliance with a state or federal rule or regulation.” (§ 1102.5(b) & (c), italics added.) In other words, “[s]ection 1102.5 of the Labor Code requires that to come within its provisions, the activity disclosed by an employee must violate a federal or state law, rule, or regulation. [Citation.]” (Id. at 1199.)

Plaintiff’s “protected activity” here is apparently his “family medical leave and disability accommodation requests.” (Compl. ¶ 44.) Plaintiff further alleges Defendants terminated him “in retaliation for and/or as a result of” these requests. (Id.) Again, however, the pleading lacks any express allegation that Plaintiff suffered from a disability.  It is thus unclear how Defendants can be alleged to have committed a violation of a state or federal statute, rule, or regulation. 

Accordingly, Defendants’ Demurrer to the Fourth Cause of Action is SUSTAINED.

F.      Demurrer to Fifth Cause of Action (Wrongful Termination in Violation of Public Policy)

Defendants demur to the Fifth Cause of action, arguing that Plaintiff has “merely alleged in a conclusory fashion that he was terminated in violation of some listed statutes and provisions…” (Dem. 12: 15-16.) However, he “fails to allege that [his] termination was substantially motivated by a violation of public policy.”

In opposition, Plaintiff contends he has “sufficiently alleged that he was discriminated and retaliated against in violation of the FEHA…which is sufficient to support a claim for termination in violation of public policy.”  (Opp. 10-15 [citing Rope v. AutoChlor System of Washington, Inc. (2013) 220 Cal.App.4th 635, 660 [“FEHA’s policy prohibiting disability discrimination in employment is sufficiently substantial and fundamental to support a claim for wrongful termination in violation of public policy.”].)

A claim for wrongful discharge in violation of public policy requires the employee to prove (1) he or she was employed by the employer, (2) the employer discharged the employee, (3) the alleged violation of public policy was a motivating reason for the discharge, and (4) the discharge caused the employee harm. (Haney v. Aramark Unif. Servs. Inc. (2004) 121 Cal. App. 4th 623.) To support the claim, “the public policy ‘must be: (1) delineated in either constitutional or statutory provisions; (2) “public” in the sense that it “inures to the benefit of the public” rather than serving merely the interests of the individual; (3) well established at the time of the discharge; and (4) substantial and fundamental.’ ” (Id. at 642.)

As already stated in this ruling, the Complaint does not allege that Plaintiff suffered from any disability.  Rather, it appears that the alleged reason for Plaintiff’s discharge was his request to take additional leave in order to care for his grandfather.  Plaintiff has failed to demonstrate that such an allegation could constitute a violation of public policy.

Accordingly, Defendants’ Demurrer to the Fifth Cause of Action is SUSTAINED.

G.    Demurrer to Sixth Cause of Action (IIED)

Defendant demurs to the Sixth cause of action for intentional infliction of emotional distress, arguing there are no facts to support the claim.  This Court agrees.

“A cause of action for intentional infliction of emotional distress exists when there is ‘(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct.  A defendant's conduct is ‘outrageous’ when it is so ‘extreme as to exceed all bounds of that usually tolerated in a civilized community. And the defendant's conduct must be ‘intended to inflict injury or engaged in with the realization that injury will result.’”  (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050-51, quoting Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 1001) (internal citations omitted). “Liability for intentional infliction of emotional distress ‘ “does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.”  (Bock v. Hansen (2014) 225 Cal. App. 4th 215, 233.)  Severe emotional distress means “ ‘emotional distress of such substantial quality or enduring quality that no reasonable [person] in civilized society should be expected to endure it.’”  (Id.)

Although a claim for IIED will generally present multiple questions of fact, a court may sustain a demurrer to the claim when “the facts alleged do not amount to outrageous conduct as a matter of law.” (Bock, supra, 225 Cal. App. 4th at 235.)  The process has been described as “more intuitive than analytical.”  (So v. Shin (2013) 212 Cal.App.4th 652, 671–672.)

As a matter of law, Plaintiff has failed to plead facts that amount to outrageous conduct, especially when considering that Plaintiff has failed to plead facts to support his other claims. 

Accordingly, Defendants’ Demurrer to the Sixth Cause of Action is SUSTAINED.

H.    Seventh Cause of Action (Unfair Business Practices)

Defendants argue Plaintiff’s seventh cause of action fails with the first six.  Plaintiff, on the other hand, argues the former six causes of action support it.

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.)

Plaintiff alleges Defendants engaged in unfair competition by “discriminating against him on the basis of his disability, retaliating against him for requesting reasonable accommodations for his disability, and failing to take reasonable steps to prevent such discrimination and retaliation from occurring.” (Compl. ¶ 60.) Because this court finds Plaintiff has not alleged he suffered from a disability or that he was otherwise discriminated against based on said disability, Plaintiff likewise cannot plead a violation of the UCL.

Accordingly, Defendants’ Demurrer to the Seventh Cause of Action is SUSTAINED.

Motion to Strike

Legal Standard

A motion to strike lies either (1) to strike any irrelevant, false or improper matter inserted in any pleading; or (2) to strike any pleading or part thereof not drawn or filed in conformity with the laws of this state, a court rule or order of court.  (CCP § 436.) Courts are given “broad discretion” when ruling on a motion to strike.  (Camenisch v. Superior Court (1996) 44 Cal.App.4th 1689, 1699).

            Analysis

As Defendants’ Demurrer to the Complaint is SUSTAINED in its entirety, the Motion to Strike is MOOT.

Moving party to give notice, unless waived. 

IT IS SO ORDERED.

Dated:   March 10, 2023                                             ___________________________________

                                                                                    Randolph M. Hammock

                                                                                    Judge of the Superior Court

            Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept49@lacourt.org by no later than 4:00 p.m. the day before the hearing.  All interested parties must be copied on the email.  It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.