Lucille Patrick v. LNN Sepulveda, Inc., et al.

(1) DEMURRER TO FIRST AMENDED COMPLAINT

(2) MOTION TO STRIKE

 

MOVING PARTIES: Defendants LNN Sepulveda, Inc., Ledgestone Hospitality, LLC, Leslie Nishanian, and Sameeh Shehata

RESPONDING PARTY(S): Plaintiff Lucille Patrick

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

This is an employment case. Plaintiff, who was born in 1952, alleges that her employer failed to pay her the correct wages and then coerced Plaintiff to sign a release for the back-payment of the wages. Plaintiff also alleges she faced workplace harassment or discrimination based on her age or sex, among other things.

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

TENTATIVE RULING:

Defendants’ Demurrer to the Ninth and Eleventh Causes of Action is SUSTAINED.   Whether leave is granted shall be determined at the hearing.

Defendants’ Demurrer to the Thirteenth and Fourteenth Causes of Action is SUSTAINED as to Defendant Shehata only, without leave to amend.

Defendants’ Demurrer is OVERRULED as to the remaining causes of action. 

Defendants’ Motion to Strike is GRANTED IN PART and DENIED IN PART, as expressly stated herein.

Moving party to give notice, unless waived.

DISCUSSION:

Demurrer

I. Meet and Confer

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. Demurrer to First, Second, Fourth, Sixth, and Tenth Cause of Action (Discrimination-Based)

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.)

First, Defendant argues that the discrimination-based claims fail because Plaintiff has not alleged facts sufficient to constitute the causes of action. As to age discrimination, Defendant contends there was no adverse employment action and no causal link between any adverse employment action and any protected characteristic. As to disability discrimination, Defendant argues that Plaintiff “has not alleged facts to support what her purported restrictions were, how her restrictions were violated, how she was subjected to the adverse employment action(s) and whether there was any causal link between the purported protected characteristics and any of the adverse employment actions.” (Mtn. 17: 6-10.) 

Plaintiff alleges she worked for Defendant LNN as Director of Sales and Operations at Hampton Inn in Sherman Oaks, CA. (FAC ¶¶ 11.) Plaintiff was born in 1952. (Id. ¶ 15.) Plaintiff alleges that Defendant misclassified her as an exempt employee and paid her an annual salary less than twice the applicable minimum wage. (Id. ¶¶ 17, 18.) Plaintiff also alleges Defendants did not compensate her for overtime and denied her meal and rest breaks. (Id. ¶¶ 20-22.) 

On or about July 17, 2023, Plaintiff “reported to Defendants that she was being compensated inappropriately in violation of the California Labor Code. (Id. ¶ 26.) Defendants allegedly “acknowledged that Plaintiff was, indeed, paid less than required for an exempt employee.” (Id. ¶ 27.) In response, “Defendants devised a plan whereby they would pay Plaintiff what they allegedly calculated to be the difference between the exempt rate and the amount Plaintiff was paid for 2021, 2022 and 2023, along with 5% interest.” (Id.) On or about August 9, 2023, Plaintiff signed “Release Agreement” for a lump sum payment of the wage payments and interest purportedly owed.” (Id. ¶¶ 28-30.) Plaintiff alleges that Defendants “took undue advantage of Plaintiff because of her age and discriminated against her on the basis of her age.” (Id. ¶ 33.) 

Plaintiff also alleges she suffered “a work-related injury when she tore her rotator cuff tendon in or about March 2022.” (Id. ¶ 37.) The injury required work restrictions, making Plaintiff a disabled employee. (Id. ¶¶ 39, 40.) Plaintiff alleges that Defendants “continued to assign Plaintiff to the understaffed breakfast service, where Plaintiff was required to lift because there was no one else available to do it.” (Id. ¶ 41.) In the course of these duties, “Plaintiff reinjured her rotator cuff at work.” (Id. ¶ 42.) 

“In California, an employee seeking recovery on a theory of unlawful discrimination or retaliation must demonstrate that he or she has been subjected to an adverse employment action that materially affects the terms, conditions, or privileges of employment, rather than simply that the employee has been subjected to an adverse action or treatment that reasonably would deter an employee from engaging in the protected activity.” (St. Myers v. Dignity Health (2019) 44 Cal. App. 5th 301, 318.) Echoing that concept, the CACI instructions state:

Adverse employment actions are not limited to ultimate actions such as termination or demotion. There is an adverse employment action if [name of defendant] has taken an action or engaged in a course or pattern of conduct that, taken as a whole, materially and adversely affected the terms, conditions, or privileges of [name of plaintiff]’s employment. An adverse employment action includes conduct that is reasonably likely to impair a reasonable employee’s job performance or prospects for advancement or promotion. However, minor or trivial actions or conduct that is not reasonably likely to do more than anger or upset an employee cannot constitute an adverse employment action.

(See CACI 2509.) 

“Minor or relatively trivial adverse actions by employers or fellow employees that, from an objective perspective, are reasonably likely to do no more than anger or upset an employee do not materially affect the terms or conditions of employment.” (Francis v. City of Los Angeles (2022) 81 Cal. App. 5th 532, 541.)

Considering the allegations in context, Plaintiff has alleged the ultimate facts necessary to support her discrimination-based causes of action. This includes an “adverse employment action,” or a course or pattern of conduct that materially and adversely affected the terms, conditions, or privileges of Plaintiff’s employment. In so concluding, this court notes that “ ‘[b]ecause the FEHA is remedial legislation,” the court “must construe the FEHA broadly, not ... restrictively.” (Vernon v. State of California (2004) 116 Cal. App. 4th 114, 123.) With this in mind, the demurrer fails. 

Accordingly, Defendants’ Demurrer to the First, Second, Fourth, Sixth, and Tenth Causes of Action are OVERRULED.

B. Demurrer to Third, Fourth, Fifth, and Tenth Causes of Action (Harassment-Based)

Next, Defendants argue that Plaintiff has not alleged facts to support the harassment-based claims. As to the Third Cause of Action for Sexual Harassment, Defendant argues that Plaintiff has not alleged any conduct of a “sexual nature.” 

“Courts have generally recognized two distinct categories of sexual harassment claims: quid pro quo and hostile work environment. Quid pro quo harassment occurs when submission to sexual conduct is made a condition of concrete employment benefits.” (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 607, internal citation omitted.) “A cause of action for quid pro quo harassment involves the behavior most commonly regarded as sexual harassment, including, e.g., sexual propositions, unwarranted graphic discussion of sexual acts, and commentary on the employee’s body and the sexual uses to which it could be put. To state a cause of action on this theory, it is sufficient to allege that a term of employment was expressly or impliedly conditioned upon acceptance of a supervisor’s unwelcome sexual advances.” (Mogilefsky v. Superior Court (1993) 20 Cal.App.4th 1409, 1414, internal citations omitted.)

As to hostile work environment sexual harassment, “the adjudicator’s inquiry should center, dominantly, on whether the discriminatory conduct has unreasonably interfered with the plaintiff’s work performance. To show such interference, ‘the plaintiff need not prove that his or her tangible productivity has declined as a result of the harassment.’ It suffices to prove that a reasonable person subjected to the discriminatory conduct would find, as the plaintiff did, that the harassment so altered working conditions as to ‘make it more difficult to do the job.’ ” (Harris v. Forklift Sys. (1993) 510 U.S. 17, 25, conc. opn. of Ginsburg, J.; see Gov. Code, § 12923(a) endorsing this language as reflective of California law.) “[A] hostile work environment sexual harassment claim requires a plaintiff employee to show she was subjected to sexual advances, conduct, or comments that were (1) unwelcome [citation]; (2) because of sex [citation]; and (3) sufficiently severe or pervasive to alter the conditions of her employment and create an abusive work environment [citations]. In addition, she must establish the offending conduct was imputable to her employer. [Citation.]” (Id. at 279.) “‘To plead a cause of action for ... sexual harassment, it is “only necessary to show that gender is a substantial factor in the discrimination, and that if the plaintiff ‘had been a man [or a woman he or] she would not have been treated in the same manner.’ ” [Citation.]’ [Citations.] Accordingly, it is the disparate treatment of an employee on the basis of sex—not the mere discussion of sex or use of vulgar language—that is the essence of a sexual harassment claim.” (Id.)

Here, Plaintiff alleges she suffered harassment based on her sex. Plaintiff alleges that in April of 2023, Defendant Shehata “confronted Plaintiff about a booking saying it had not been properly calendared.” (FAC ¶ 48.) When Plaintiff attempted to explain the situation to Defendant Shehata, he “began screaming at Plaintiff while he pointed and gesticulated wildly at her and tried to drown her out with his loud voice. SHEHATA then yelled at Plaintiff to ‘get out’ and go back to her office.” (Id. ¶ 49.) Shehata allegedly then “cornered” Plaintiff in her office “and continued yelling at her,” causing Plaintiff to feel “physically threatened and believe[] she was in danger.” (Id. ¶¶ 50, 51.) Plaintiff alleges that Defendant would not have treated a man in this manner. (Id. ¶ 52.) Plaintiff alleges she reported Shehata’s conduct to Defendants, but that Defendants “failed to take remedial action or to investigate Plaintiff’s complaint.” (Id. ¶ 55.) As a result, “Plaintiff felt unsafe at the workplace and feared for her life.” (Id. ¶ 56.) 

Considering these allegations, Plaintiff has alleged that Plaintiff’s gender was a substantial factor in the discrimination she faced, and that a man would not have faced the same treatment. Nothing more is necessary at this time to state her claim for sexual harassment. 

Defendants go on to argue that the alleged harassment was not sufficiently pervasive or severe to be actionable. To establish a FEHA claim for harassment, a plaintiff must show that “(1) [he] is a member of a protected class; (2) [he] was subjected to unwelcome harassment; (3) the harassment was based on her protected status; (4) the harassment unreasonably interfered with [his] work performance by creating an intimidating, hostile, or offensive work environment; and (5) defendants are liable for the harassment.”  (Galvan v. Dameron Hosp. Assn. (2019) 37 Cal. App. 5th 549, 563.)

“Actionable harassment consists of more than “annoying or ‘merely offensive’ comments in the workplace,” and it cannot be “occasional, isolated, sporadic, or trivial; rather, the employee must show a concerted pattern of harassment of a repeated, routine, or a generalized nature.” (Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 283.)  Harassment “must be assessed from the ‘perspective of a reasonable person belonging to [same protected class as] the plaintiff.’ ”  (Cornell v. Berkeley Tennis Club, (2017) 18 Cal. App. 5th 908, 940.)

“Whether the conduct of the alleged harassers was sufficiently severe or pervasive to create a hostile or abusive working environment depends on the totality of the circumstances. These may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance. Common sense, and an appropriate sensibility to social context, will enable courts and juries to distinguish between simple teasing or roughhousing and conduct that a reasonable person in the plaintiff's position would find severely hostile or abusive.” (Serri v. Santa Clara Univ. (2014) 226 Cal. App. 4th 830, 870 [cleaned up].)

Considering the facts discussed previously, the court concludes Plaintiff’s allegations underlying her harassment causes of action present a question of fact that cannot be resolved on a demurrer. 

Accordingly, Defendant’s Demurrer to the Third, Fourth, Fifth, and Tenth Causes of Action is OVERRULED.

C. Demurrer to Ninth and Tenth Causes of Action (Retaliation)

Defendants next argue that Plaintiff has not alleged sufficient facts to support her retaliation claims. Defendants assert: “First, Plaintiff does not identify any protected activity. Second, she has not alleged facts to infer, retaliatory animus on the part of Defendants. Third, as noted, already in connection with her discrimination claims, she has not alleged any facts regarding any adverse employment actions by the employer. Fourth, she has not alleged any facts to support an inference of a causal link between any protected activity and any supposed adverse employment action. Fifth, she has not articulated any harm resulting from the unspecified adverse employment actions. Sixth, she has not provided any facts regarding actual or proximate cause.” (Dem. 21: 24-28.) 

“[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.) 

Here, it appears that Plaintiff’s “protected activity” was the need or request for accommodations after her work injury. (Compl. ¶¶ 35-42.) Plaintiff, however, has not alleged how Defendants retaliated against her for requesting an accommodation, i.e., an adverse employment action. In addition, Plaintiff has not alleged a causal link between the request for accommodations and any adverse employment action. Because of this, the Ninth Cause of Action cannot stand.  

Accordingly, Defendants’ Demurrer to the Ninth 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 such a possibility via an offer or proof at the hearing.  

Although this would defeat the retaliation portion of the Tenth Cause of Action for failure to prevent, the discrimination and harassment causes of action remain. A “demurrer cannot rightfully be sustained to part of a cause of action.” (Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal. App. 4th 1028, 1047; Fremont Indem. Co. v. Fremont Gen. Corp. (2007) 148 Cal. App. 4th 97, 119 [“A demurrer must dispose of an entire cause of action to be sustained”].) 

Accordingly, Defendants’ Demurrer to the Tenth Cause of Action is OVERRULED.

D. Demurrer to Seventh (Failure to Accommodate) and Eighth Cause of Action (Failure to Engage in Interactive Process

The elements of a failure to accommodate claim are “(1) the plaintiff has a disability under the FEHA, (2) the plaintiff is qualified to perform the essential functions of the position, and (3) the employer failed to reasonably accommodate the plaintiff's disability.”  (Scotch v. Art Inst. of California (2009) 173 Cal. App. 4th 986, 1009–10.)

“The ‘interactive process' required by the FEHA is an informal process with the employee or the employee's representative, to attempt to identify a reasonable accommodation that will enable the employee to perform the job effectively. [Citation.] Ritualized discussions are not necessarily required.” (Scotch v. Art Inst. of California (2009) 173 Cal. App. 4th 986, 1013.) Where a Defendant knows the offered accommodations are insufficient—even though the employer has offered all of those requested by the employee—it may still trigger [an employer’s] duties to engage in the interactive process and to consider any and all reasonable accommodations.” (Lin v. Kaiser Found. Hosps. (2023) 88 Cal. App. 5th 712, 729.)

In support of the demurrer, Defendants argue that Plaintiff “fails to allege what those work restrictions were and/or how such restrictions conflicted with her job duties.” 

Plaintiff alleges that she had medical restrictions following her work injury, but that “Defendants continued to assign Plaintiff to the understaffed breakfast service, where Plaintiff was required to lift because there was no one else available to do it.” (FAC ¶ 41.) For pleadings purposes, this is sufficient to state claims for failure to engage in the interactive process and failure to accommodate.

Accordingly, Defendant’s Demurrer to the Seventh and Eighth Causes of Action is OVERRULED.

E. Demurrer to Eleventh Cause of Action for Intentional Infliction of Emotional Distress

Defendants next argue that the IIED claim as barred by workers’ compensation exclusivity. 

Emotional distress actions based on the outrageous conduct of employers and/or fellow employees will be barred by workers’ compensation exclusivity if the underlying conduct is a “normal” part of the employment relationship, such as demotion, promotion, criticism of work practices, and friction in negotiations as to grievances. (Cole v. Fair Oaks Fire Protection Dist. (1987) 43 Cal.3d 148, 160.) This is true even where the conduct could be characterized as “manifestly unfair, outrageous, harassment, or intended to cause emotional disturbance.” (Ibid.) 

Here, the allegations giving rise to the IIED cause of action fall within the bounds of a “normal” employment relationship.  It is therefore barred by workers’ compensation exclusivity. Plaintiff does not address the argument in opposition, thereby conceding it.

Accordingly, Defendants’ Demurrer to the Eleventh Cause of Action is SUSTAINED, without leave to amend.

F. Demurrer to Twelfth, Thirteenth, Fourteenth, and Fifteenth Causes of Action

First, Defendants argue these causes of action fail because Plaintiff confirms in the FAC that she was ultimately paid any amounts owed to her. Defendants also argue the cause of action fails because Plaintiff has not attached the “release” to the FAC.

Here, without determining whether the release was effective, there exists a factual question whether Plaintiff was back-paid all wages owed.  (See FAC ¶ 27 [“Defendants devised a plan whereby they would pay Plaintiff what they allegedly calculated to be the difference between the exempt rate and the amount Plaintiff was paid for 2021, 2022 and 2023, along with 5% interest”].) In addition, Plaintiff has pled the legal effect of the release sufficient for pleadings purposes. 

Accordingly, Defendants’ Demurrer to the Twelfth, Thirteenth, Fourteenth, and Fifteenth Causes of Action is OVERRULED.

G. Demurrer to Sixteenth Cause of Action (Financial Elder Abuse)

Defendants next argue that Plaintiff has failed to allege facts amounting to elder abuse. “Financial abuse” of an elder or dependent adult occurs when a person or entity does any of the following:

(1) Takes, secretes, appropriates, obtains, or retains real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both.

(2) Assists in taking, secreting, appropriating, obtaining, or retaining real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both.

(3) Takes, secretes, appropriates, obtains, or retains, or assists in taking, secreting, appropriating, obtaining, or retaining, real or personal property of an elder or dependent adult by undue influence, as defined in Section 15610.70.

(Cal. Welf. & Inst. Code 15610.30(a); see also Teselle v. McLoughlin (2009) 173 Cal. App. 4th 156, 174 [citing Welf. & Inst.Code, § 15610.30].)

“A person or entity shall be deemed to have taken, secreted, appropriated, obtained, or retained property for a wrongful use if, among other things, the person or entity takes, secretes, appropriates, obtains, or retains the property and the person or entity knew or should have known that this conduct is likely to be harmful to the elder or dependent adult.” (Id., subdiv. (b).) “[A] person or entity takes, secretes, appropriates, obtains, or retains real or personal property when an elder or dependent adult is deprived of any property right, including by means of an agreement, donative transfer, or testamentary bequest, regardless of whether the property is held directly or by a representative of an elder or dependent adult.” (Id., subdiv. (c).)

Again, Plaintiff alleges that due to her age, Defendants misclassified her as an exempt employee, paid her an annual salary less than twice the applicable minimum wage, failed to compensate her for overtime, and denied her meal and rest breaks. (FAC ¶¶ 17, 18, 20-22.) Later, Defendants allegedly convinced Plaintiff to agree to “a lump sum payment of the wage payments and interest purportedly owed.” (Id. ¶¶ 28-30.) Plaintiff alleges that Defendants “took undue advantage of Plaintiff because of her age and discriminated against her on the basis of her age.” (Id. ¶ 33.) 

Considering these allegations and accepting them as true, Plaintiff has stated her cause of action for financial elder abuse. 

H. Demurrer by Defendant Shehata to Thirteenth and Fourteenth Causes of Action

Finally, Defendants argue that Defendant Shehata cannot be liable for any cause of action under Labor Code section 558 because Plaintiff has not established that Defendant Shehata was her employer. 

Based on the allegations, it appears that Defendant Shehata was nothing more than a coworker of Plaintiffs. He therefore cannot be responsible for the failure to provide meal or rest breaks. Plaintiff does not contest this point in her opposition. 

Accordingly, Defendant Shehata’s Demurrer to the Thirteenth and Fourteenth Causes of Action is SUSTAINED without leave to amend. 

Motion to Strike

A. 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).

B. Analysis

1. Punitive Damages

First, Defendants move to strike Plaintiff’s references to punitive damages in the First Amended Complaint. Defendants argue Plaintiff has failed to plead facts to support an award of punitive damages.

Civil Code § 3294 provides that “[i]n an action for the breach of an obligation not arising from contract where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.” 

As defined in § 3294(c):

(1) “Malice” means 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. 

(2) “Oppression” means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights. 

(3) “Fraud” means that a defendant intentionally misrepresented or concealed a material fact and did so intended to harm a plaintiff.

Additionally, “[w]hen the defendant is a corporation, ‘[a]n award of punitive damages against a corporation ... must rest on the malice of the corporation's employees. But the law does not impute every employee's malice to the corporation.’ [Citation.] Instead, the oppression, fraud, or malice must be perpetrated, authorized, or knowingly ratified by an officer, director, or managing agent of the corporation. (Civ.Code, § 3294, subd. (b).)” (Wilson v. S. California Edison Co. (2015) 234 Cal. App. 4th 123, 164.)

Here, considering the allegations discussed in the demurrer, Plaintiff has alleged facts of malice, oppression or fraud, that if true and proven at trial, could amount to an award of punitive damages. The court therefore declines to strike the allegations at this time. 

Accordingly, Defendant’s Motion to Strike punitive damages is DENIED. 

2. Release

In the FAC, Plaintiff alleges that “Defendants failed to provide Plaintiff with a full and ample opportunity to consider the agreement and failed to extend revocation rights to Plaintiff.” (FAC ¶ 32.) 

Defendants contend this allegation is irrelevant because a revocation is not required. Plaintiff does not address this point in her opposition, thereby conceding it.

Accordingly, Defendants’ Motion to Strike paragraph 32 of the FAC is GRANTED without leave to amend.

IT IS SO ORDERED.

Dated:   August 13, 2024 ___________________________________