Judge Randolph M. Hammock, Case 22STCV30902 2023-04-07 Tentative Ruling

Plaintiff Marvin Gross worked as a public defender for the County of Los Angeles and suffers from a spinal disorder. Plaintiff alleges that in early 2021, Defendant assigned him to work in central felony arraignments. Plaintiff informed Defendant that he could not physically perform the new assignment because it required too much walking which he was incapable of doing due to his disability. Plaintiff alleges Defendant failed to reasonably accommodate or engage in an interactive process, which resulted in his constructive termination.

Defendant’s Demurrer to the Second Cause of Action is SUSTAINED. Generally speaking, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) Plaintiff must demonstrate this possibility at the hearing.

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.)

Defendant County demurs to the Second Cause of Action for Age Discrimination. Defendant contends the cause of action fails because it is conclusory and fails to plead the “ultimate facts setting forth a prima facie case for age discrimination.” (Dem. 6: 5-6.)

Generally, to make prima facie case for FEHA discrimination, “the 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.” (Guz v. Bechtel Nat. Inc. (2000) 24 Cal. 4th 317, 355.)

In his allegations common to all causes of action, Plaintiff alleges he worked as a public defender for the County within the metro division. (Compl. ¶¶ 10, 11.) Plaintiff alleges he is physically disabled due to “spinal stenosis/spinal disorder,” which “interfered with his ability to walk.” (Id. ¶ 4.) In early 2021, Defendant reassigned Plaintiff to work in central felony arraignments. (Id. ¶ 12.) “Plaintiff informed management that he could not physically perform the new assignment because it required too much walking which he was incapable of doing due to his disability. Plaintiff asked to either stay at his current assignment or be transferred to an assignment without as much walking.” (Id. ¶ 13.) Plaintiff alleges Defendant denied his requests and instead “insisted that he accept his transfer.” (Id. ¶ 16.) Plaintiff alleges this resulted in his termination or constructive termination. (Id. ¶¶ 24, 24, 26.)

In support of his second cause of action for age discrimination, Plaintiff also alleges that he “was over the age of forty (40) years old” and that “he was treated differently due to his age and that adverse employment actions were taken against him due to his age.” (Id. ¶¶ 38, 40.)

Beyond the allegation that he is over 40 years old, however, Plaintiff pleads no facts suggesting that age was a factor in his termination. (Fisher v. San Pedro Peninsula Hosp. (1989) 214 Cal.App.3d 590, 604 [in a FEHA case, “facts in support of each of the requirements of a statute upon which a cause of action is based must be specifically pled”]; Lopez v. Southern Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780, 795 [“ ‘to state a cause of action against a public entity, every fact material to the existence of its statutory liability must be pleaded with particularity’ ”].) As currently pled, all of the underlying factual allegations supporting his claims are based on his spinal injury and the failure to reasonably accommodate same—not his age. The Second Cause of Action therefore fails as a matter of law, as currently pled.

Accordingly, Defendant’s Demurrer to the Second Cause of Action is SUSTAINED. Generally speaking, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) Plaintiff must demonstrate this possibility at the hearing. [FN 1]

Judge of the Superior Court

FN 1 - This Court would respectfully urge the Plaintiff to seriously consider whether he really needs this cause of action or not. There are no additional damages to be awarded. This is merely an alternative or additional theory of recovery. Is his First Cause of Action so shaky that he needs an alternative and/or additional theory? Food for thought.