Abel Garcia Navarro v. Shift Human Capital Management, Inc., et al.

(1) DEMURRER TO COMPLAINT

(2) MOTION TO STRIKE

 

MOVING PARTIES: Defendant Humanitas Holdings, Inc.

RESPONDING PARTY(S): Plaintiff Abel Garcia Navarro

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

This is an employment case. Plaintiff Abel Garcia Navarro brings this action against his former employers, alleging Defendants fired him because of his age and after suffering an injury at work. Plaintiff brings causes of action for (1) FEHA discrimination, (2) FEHA retaliation, (3) failure to prevent discrimination and retaliation, (4) failure to accommodate, (5) failure to engage in interactive process, (6) declaratory judgment, and (7) wrongful termination.

Defendant Humanitas Holdings now demurrers to the Complaint and moves to strike portions therein. Plaintiff opposed.

TENTATIVE RULING:

Defendant’s Demurrer to the Second and Sixth Causes of Action is SUSTAINED.

Whether leave to amend will be allowed will be determined at the hearing.

Defendant’s Demurrer to the First, Fourth, Fifth, and Seventh Causes of Action is OVERRULED.

Defendant’s Motion to Strike is GRANTED. Whether leave to amend will be allowed will be determined at the hearing.

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

Defendant demurrers to the First, Second, Fourth, Fifth, Sixth, and Seventh Causes of Action in the Complaint. Each is addressed in turn.

A. First Cause of Action for Discrimination

First, Defendant argues that Plaintiff has not pled any adverse employment action, and certainly none that was based on any protected characteristic. Defendant contends that “Plaintiff pleads that he could not be accommodated and somehow that translated into him being terminated.” (Dem. 6: 9-10.) Defendant suggests that, if anything, Plaintiff “somehow jumped to the conclusion that because he could not be accommodated that he was terminated.” (Id. 6: 16-17.)

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.)

Here, Plaintiff Abel Garcia Navarro alleges he worked for Defendants as “a laborer” since May 1, 2022. (Compl. ¶ 19.) “On or about February 2, 2023, Plaintiff slipped and fell, injuring his left knee, back, head and shin. These injuries limited Plaintiffs ability to perform the major life activity of working and therefore constituted a disability.” (Id. ¶ 22.) “Plaintiff immediately notified Defendants of his injuries and he was sent to the industrial medical provider. Plaintiffs medical provider released him back to work with restrictions of no lifting over 10 pounds. Plaintiff provided Defendants with his work restrictions and requested accommodation.” (Id. ¶ 23.) “On or about February 28, 2023, Defendants informed Plaintiff they could not accommodate his work restrictions, thereby wrongfully terminating his employment.” (Id. ¶ 24.) Plaintiff alleges “Defendants discriminated and retaliated against Plaintiff for exercising Plaintiffs right to request an accommodation of Plaintiffs disability and/or medical condition.” (Id. ¶ 25.) Plaintiff alleges his termination “was substantially motivated by Plaintiff’s age, disability or perceived disability, medical condition or perceived medical condition, request for accommodation, and/or engagement in protected activities.” (Id. ¶ 28.) 

To be sure, the pleading leaves something to be desired in its failure to clearly bridge the gap between the failure to accommodate and the termination. Plaintiff alleges only that “Defendants informed Plaintiff they could not accommodate his work restrictions, thereby wrongfully terminating his employment.” (Id. ¶ 24.) For example, did Plaintiff merely assume he was fired? What accommodations did the employer offer, if any? Could they have offered any without incurring an “undue hardship?” (See Gov. Code § 12940(m).) 

Be that as it may, “[i]t is only necessary for a plaintiff to plead ultimate facts.” (Doheny Park Terrace Homeowners Assn., Inc. v. Truck Ins Ins. Exch. (2005) 132 Cal. App. 4th 1076, 1085.) The impact of the allegations is clear: Defendants would not (or could not) accommodate Plaintiff, resulting in his implicit or explicit termination. These allegations are sufficient to state all elements of discrimination under the FEHA. 

Accordingly, Defendant’s Demurrer to the First Cause of Action is OVERRULED.

B. Second Cause of Action for Retaliation

Defendant also demurrers to the second cause of action, arguing that his “far-fetched” belief that he was terminated does not amount to 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.)

Plaintiff alleges that he “engaged in the protected activities of requesting accommodation, and complaining about and protesting Defendants’ discriminatory conduct towards Plaintiff based upon Plaintiff’s age, disability, medical condition, real or perceived, and use of medical leave.” (Compl. ¶ 52.) “Plaintiff suffered the adverse employment actions of unlawful discrimination, failure to accommodate, failure to investigate, remedy, and prevent discrimination, failure to reinstate and return to work, and termination, and was harmed thereby.” (Id. ¶ 53.) Plaintiff alleges these requests of complaints “were motivating reasons and/or factors in the decisions to subject Plaintiff to the aforementioned adverse employment actions.” (Id. ¶ 54.)

Here, the only actual facts—as opposed to conclusion of law—alleged to support the retaliation cause of action are that Plaintiff asked for accommodations and that they were denied (or, that he was fired). As pled, this is discrimination and/or failure to accommodate—not retaliation. Plaintiff has failed to allege the ultimate facts necessary to demonstrate a causal link between any protected activity and adverse employment action.

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 at the hearing, vis-à-vis a sufficient offer of proof, that there is such a reasonable possibility.

C. Fourth Cause of Action for Failure to Provide Reasonable Accommodations; Fifth Cause of Action for Failure to Engage in Interactive Process

Next, Defendant argues Plaintiff has not alleged facts to support a failure to accommodate or engage in the interactive process. 

Under FEHA, “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.” (Wilson v. County of Orange (2009) 169 Cal.App.4th 1185, 1192, quoting Gov. Code, § 12940, subd. (m).) “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.)

Plaintiff alleges that he had “restrictions of no lifting over 10 pounds.” (Compl. ¶ 23.)  “Plaintiff provided Defendants with his work restrictions and requested accommodation.” (Id.) Rather than offer any accommodations, “Defendants informed Plaintiff they could not accommodate his work restrictions, thereby wrongfully terminating his employment.” (Id. ¶ 24.) 

On these facts, Plaintiff has alleged a prima facie case of failure to provide reasonable accommodations and failure to engage in the interactive process. The questions raised by Defendant—while they would certainly add context if included—need not be pled in the complaint and can be deduced through the discovery process.

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

D. Sixth Cause of Action for Declaratory Judgment

Next, Defendant argues Plaintiff has not alleged facts to justify a declaratory judgment. Under his Sixth Cause of Action for Declaratory Judgment, Plaintiff seeks the following declaration: 

Pursuant to Code of Civil Procedure §1060, Plaintiff seeks a judicial determination of Plaintiffs rights and duties, and a declaration that Plaintiffs age, disability, perceived disability, medical condition, perceived medical condition, engagement in protected activities, and/or some combination of these protected characteristics was a substantial motivating factor in the decision to subject Plaintiff to the aforementioned adverse employment actions.” 

(Compl. ¶ 88.)

 In other words, Plaintiff essentially seeks a declaration that Defendants violated the FEHA. But this is why his causes of action under the FEHA already exist. This “declaration” will be resolved one way or the other through his other claims. It is therefore not necessary or proper at this time. (See Osseous Techs. of Am., Inc. v. DiscoveryOrtho Partners LLC (2010) 191 Cal. App. 4th 357, 372 [“[T]rial courts have discretion at the demurrer stage of a dispute to weed out disputes in which a declaration would not be necessary or proper at the time.”].)

Accordingly, Defendant’s Demurrer to the Sixth Cause of Action is SUSTAINED, without leave to amend, as unnecessary.

E. Seventh Cause of Action for Wrongful Termination

Next, Defendant argues Plaintiff’s wrongful discharge claim fails because Defendant did not terminate Plaintiff. 

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.)

Here, again, Plaintiff has alleged that he requested accommodations for his injury and that “Defendants informed Plaintiff they could not accommodate his work restrictions, thereby wrongfully terminating his employment.” (Compl. ¶¶ 23, 24.) These allegations suggest that Defendant simply chose to fire Plaintiff rather than offer any reasonable accommodation. This is a prima facie case of wrongful termination. 

Accordingly, Defendant’s Demurrer to the Seventh Cause of Action is OVERRULED.

Motion to Strike

I. 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).

II. Analysis

Defendant moves to strike references to punitive damages. Defendant contends Plaintiff has not alleged facts to support malice, oppression or fraud done by an officer, director, or managing agent of the moving Defendant.

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.

“When 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, Plaintiff’s allegations are insufficient to support an award of punitive damages. Plaintiffs allege “despicable conduct” only in conclusory fashion. However, there are no facts alleged to support that position—only buzzwords. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318 [court does not accept contentions, deductions, or conclusions of law].) In addition, Plaintiff has not alleged conduct by any “officer, director, or managing agent of” the Defendant. (Civ.Code, § 3294, subd. (b).) This is a prerequisite to any award of punitive damages, and without it, the request must fail.

Accordingly, Defendant’s Motion to Strike is GRANTED. 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 at the hearing, vis-à-vis a sufficient offer of proof, that there is such a reasonable possibility.

IT IS SO ORDERED.

Dated:   April 16, 2025 ___________________________________