Judge: Richard Y. Lee, Case: 30-2022-01239251, Date: 2022-12-07 Tentative Ruling

Defendant, Electronic Waveform Lab, Inc. (“Defendant”) moves for an order sustaining its demurrer, without leave to amend, to the First Amended Complaint (“FAC”) of Plaintiff Monique Melendez (“Plaintiff”) and to the First, Second, Third, Fourth, Fifth, Sixth and Seventh Causes of Action.

Defendant contends that the FAC and each cause of action fails to state facts sufficient to state a cause of action. Defendant contends that the First Cause of Action for Disability Discrimination fails because work-related stress is not a qualifying disability under the Fair Employment and Housing Act (“FEHA”); that work-related stress is covered exclusively under Workers’ Compensation such that it is barred; and that judicial estoppel applies to bar Plaintiff from taking inconsistent positions about her ability to work and whether her stress claim was included in her claim before the Workers’ Compensation Appeals Board (“WCAB”). Defendant contends that the Second Cause of Action for Failure to Accommodate fails as work-related stress is not a qualifying disability under FEHA, the FAC fails to allege what the essential functions of Plaintiff’s position are or how Plaintiff could have performed with a reasonable accommodation, that Plaintiff admits she was placed on a medical leave of absence which is considered a reasonable accommodation under FEHA, and that Plaintiff’s workers’ compensation paperwork negates her claim of failure to accommodate and the allegation that “Defendant failed to provide workers’ compensation paperwork . . . .” As to the Third Cause of Action for Failure to Engage in the Interactive Process, Defendant contends Plaintiff fails to state facts specific as to what the essential functions of Plaintiff’s job were or how such proposed accommodation could have enabled her to perform her job. As to the Fourth Cause of Action for Failure to Prevent Discrimination, Defendant contends that this claim must fail as Plaintiff’s underlying discrimination claim fails. Defendant also contends that Plaintiff’s claims for retaliation and harassment due to her association with Brenda Cervantes fails because Ms. Cervantes did not file her suit against Defendant until after Plaintiff left employment with Defendant and that “disability by association” requires specific allegations that Defendant knew of Plaintiff’s relationship with Ms. Cervantes, which is not alleged. Defendant contends that the Fifth Cause of Action for Retaliation fails as it is derivative of Plaintiff’s prior allegations which fail. Defendant contends that the Sixth Cause of Action for Wrongful  Termination fails as Plaintiff voluntarily resigned from her job with Defendant in connection with her Workers’ Compensation settlement, and that there are no facts alleged that Plaintiff was coerced to resign, as well as that Plaintiff fails to allege facts that Defendant’s conduct created extraordinary or egregious working conditions, and that the passage of time between when Plaintiff was placed off work on May 20, 2020 and resigned in July 2021 is too remote to connect Defendant’s actions and Plaintiff’s resignation. Defendant further contends that the Seventh Cause of Action for Violation of Business & Professions Code § 17200 fails to state with reasonable particularly the facts supporting the statutory elements of any violation, and as Plaintiff’s “borrowed” claims fail, this claim fails.

Finally, Defendant argues that Plaintiff fails to sufficiently allege that she exhausted administrative remedies as she failed to attach the right-to-sue notice.

Plaintiff contends that Defendant mischaracterizes the allegations of the FAC, ignores the allegation of a physical disability, and that her assertions are consistent with her prior worker’s compensation claim. Plaintiff also argues that the parties did not intend to settle her FEHA-based claims through the Compromise and Release of Workers’ Compensation claim (“C&R”) and that she only signed the “voluntary resignation” because Defendant required it before agreeing to settle the Workers’ Compensation claim. As to the Sixth and Seventh Causes of Action, Plaintiff argues that she bases her wrongful termination claim upon violations of Government Code section 12940 et seq (FEHA), Labor Code section 232.5, Labor Code section 6310, and Labor Code section 6400, and that the wrongful termination action satisfies the requirement that it be based upon a violation of public policy. Plaintiff requests leave to amend should the demurrer be sustained.

Defendant’s reply expressly identifies allegations of Plaintiff’s physical disability for the first time and argues against and addresses Plaintiff’s alleged physical disability. This response is not strictly responsive to arguments made for the first time in opposition as Plaintiff’s alleged disabilities were plainly alleged on the face of the FAC and were not cited or sufficiently discussed in the moving papers.

Defendant’s reply also asserts for the first time that Code of Civil Procedure section 1002.5(b)(1) provides that a voluntary resignation in connection with a Workers’ Compensation settlement is permissible, and is a legitimate, non-discriminatory and non-retaliatory reason under California employment settlement law.

The Court declines to consider all new points, arguments, and evidence presented for the first time on reply. (See Balboa Ins. Co. v. Aguirre (1983) 149 Cal.App.3d 1002, 1010; Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537-1538.)

Failure to Exhaust Administrative Remedies

Defendant argues that Plaintiff failed to exhaust administrative remedies, as Plaintiff failed to attach the right-to-sue notice to the FAC.

Plaintiff does not address this contention and thereby concedes the same. Failure to oppose the demurrer may be construed as having abandoned the claims.  (See Herzberg v. County of Plumas (2005) 133 Cal. App. 4th 1, 20 [“Plaintiffs did not oppose the County's demurrer to this portion of their seventh cause of action and have submitted no argument on the issue in their briefs on appeal.  Accordingly, we deem plaintiffs to have abandoned the issue”].)

Initially, Defendant does not identify as to which causes of action this argument is made. However, exhaustion of the FEHA administrative remedy is a precondition to bringing a civil suit on a statutory cause of action. (Rojo v. Kliger (1990) 52 Cal.3d 65, 83.) Therefore, this argument appears applicable to the First through Fifth Causes of Action.

“ ‘Before filing a civil action alleging FEHA violations, an employee must exhaust his or her administrative remedies with DFEH.’ [Citation.] Exhausting includes the timely filing of administrative complaints addressing the claims and parties at issue, as well as the procurement of right-to-sue letters. [Citation.]” (Kim v. Konad USA Distribution, Inc. (2014) 226 Cal.App.4th 1336, 1345.) Plaintiff has the burden to plead and prove timely exhaustion of administrative remedies. (Ibid.)

“Under California law, ‘an employee must exhaust the . . . administrative remedy’ provided by the Fair Employment and Housing Act, by filing an administrative complaint with the California Department of Fair Employment and Housing (DFEH) [Citation] and obtaining DFEH’s notice of right to sue [citation], ‘before brining suit on a cause of action under the act or seeking the relief provided therein . . . .’ [Citations.]” (Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th 1718, 1724.) “To exhaust his or her administrative remedies as to a particular act made unlawful by the Fair Employment and Housing Act, the claimant must specify that act in the administrative complaint, even if the complaint does specify other cognizable wrongful acts. [Citation.]” (Ibid.) The failure to exhausted an administrative remedy is a jurisdictional defect. (Ibid.)

The FAC alleges, “[b]efore filing this lawsuit, Plaintiff exhausted her administrative remedies by timely filing a complaint with the Department of Fair Employment and Housing (DFEH) and receiving a right-to-sue notice, dated January 11, 2021.” (FAC, ¶ 27.)

Despite Plaintiff’s failure to address this argument, the authorities cited by Defendant do not provide that a plaintiff is required to attach a right-to-sue notice to a pleading. Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th 1718 discusses the requirement, and Okoli v. Lockheed Technical Operations Co. (1995) 36 Cal.App.4th 1607, dealt with a motion for summary judgment whether the plaintiff could maintain a retaliation claim in spite of the failure to enumerate that claim in the DFEH claim. (Okoli v. Lockheed Technical Operations Co. (1995) 36 Cal.App.4th 1607, 1613.)

The allegation is accepted as true for the purposes of demurrer and are sufficient at this stage. “A demurrer tests only the sufficiency of the allegations. It does not test their truth, the plaintiff[’s] ability to prove them or the possible difficulty in making such proof.” (Saunders v. Superior Court (1994) 27 Cal.App.4th 832, 840.)

The Court OVERRULES the demurrer on this ground.

First Cause of Action for Disability Discrimination

Defendant contends that the FAC fails to state facts sufficient to constitute any cause of action against Defendant as work-related stress is not a qualifying disability under the FEHA such that  Plaintiff is not a member of a protected class under the FEHA. Defendant also contends that work-related stress is covered exclusively under Workers’ Compensation which is the exclusive remedy for an injury that occurred at the workplace, and that Plaintiff filed an action against Defendant with the Workers’ Compensation Appeals Board (“WCAB”), received disability payments and settled her Workers’ Compensation claims, included work-related stress claims, for $50,000 so that Plaintiff’s claim for work-related stress is barred.

Defendant additionally asserts that this cause of action is barred by the principle of judicial estoppel under which Plaintiff is estopped from gaining an advantage by taking one position, and then seeking a second advantage by taking an incompatible position, and that Plaintiff is estopped from taking inconsistent positions her ability to work during the relevant time period, and is estopped from arguing that she could work for Defendant during the same time period she was receiving disability benefits. Defendant also argues that Plaintiff is estopped from taking two different positions regarding the inclusion of her psych/stress claim with the WCAB as the FAC alleges that Plaintiff’s Workers’ Compensation claim did not include psych claims of stress, but such claims were identified as part of Plaintiff’s Workers’ Compensation Claim Form and listed as a work-related injury her Application for Adjudication of Claim, and the Compromise and Release.

Plaintiff asserts that the FAC alleges both physical disability arising from a repetitive injury to Plaintiff’s neck, back, and shoulder, as well as a mental disability arising from stress and anxiety, and that Defendant ignores Plaintiff’s physical disability. Plaintiff also argues that there is no blanket rule that “work-related stress” does not qualify as a disability under the FEHA, and that it only does not qualify under certain conditions which are not alleged here. 

Plaintiff additionally argues that her assertions are consistent with her prior worker’s compensation claim as Plaintiff is seeking damages for back pay, front pay, and emotional distress related to Defendant’s constructive termination of Plaintiff and Defendant’s failures to accommodate and engage in the good faith interactive process after both her leave of absence and the Workers’ Compensation claim and from Defendant’s conduct in 2021, i.e., refusal to engage in the interactive process, failure to accommodate, and failure to address prior complaints of targeting and discrimination.

Plaintiff also argues that neither party intended to settle or otherwise address Plaintiff’s FEHA-based claims through the Compromise and Release of Workers’ Compensation claim; that she only signed the “voluntary resignation” because Defendant required it before agreeing to settle the Workers’ Compensation claim; and that she sought to return to work for Defendant with accommodations after she had completed her medical leave of absence and before she purportedly “resigned.” Plaintiff further argues that the Compromise and Release documents establish that Plaintiff’s disability benefits ended on July 3, 2021, and support that Plaintiff intended to recover her emotional distress damages from her FEHA-based claim and not in the Workers’ Compensation claim.

A demurrer can be used only to challenge defects that appear within the “four corners” of the pleading – which includes the pleading, any exhibits attached, and matters of which the court is permitted to take judicial notice. (Blank v. Kirwan (1985) 39 Cal. 3d 311, 318; Donabedian v. Mercury Ins. Co. (2004) 116 Cal. App. 4th 968, 994.) Limited to the “four corners” as such, a pleading is adequate if it contains a reasonably precise statement of the ultimate facts, in ordinary and concise language, and with sufficient detail to acquaint a defendant with the nature, source and extent of the claim. (Leek v. Cooper (2011) 194 Cal. App. 4th 399, 413.)

On demurrer, a complaint must be liberally construed. (Code Civ. Proc. § 452; Stevens v. Superior Court (1999) 75 Cal. App. 4th 594, 601.) All material facts properly pleaded, and reasonable inferences, must be accepted as true. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal. 4th 962, 966-67.)

A party may not demur to a portion of a cause of action, and a demurrer must dispose of an entire cause of action to be sustained. (Fremont Indem. Co. v Fremont Gen. Corp. (2007) 148 Cal.App.4th 97, 119; PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1681.) “[I]t is error for a trial court to sustain a demurrer when the plaintiff has stated a cause of action under any possible legal theory.” (Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1358.)

Here, the FAC alleges that Plaintiff alleges a disability based on stress and anxiety, as well as a physical disability based on pain in Plaintiff’s right hand, back and neck “[d]ue to the unreasonable workload and repetitive nature of her duties.” (FAC, ¶¶ 15-25.) The FAC alleges that “Plaintiff suffered discrimination, harassment, retaliation, and ultimately wrongful termination due to her stress, disability, requests for accommodation, complaining about the hostile work environment, taking medical leave, and her engagement in protected activity.” (FAC, ¶ 26.) The First Cause of Action for Discrimination incorporates these allegations, and alleges that “Plaintiff has a disability as alleged above.” (FAC, ¶ 30.)

Plaintiff correctly notes that the demurrer fails to sufficiently address Plaintiff’s physical disability. Defendant does not identify or cite the relevant allegations in the FAC and only addresses Plaintiff’s disability based upon work-related stress and anxiety in support of Defendant’s arguments that Plaintiff does not allege a qualifying disability under the FEHA; that the claim is barred by Workers’ Compensation exclusivity; and that the claim is barred by judicial estoppel. As a result Defendant only demurs to a portion of the cause of action, and the Court OVERRULES the demurrer to the First Cause of Action.

Second Cause of Action for Failure to Accommodate

Defendant contends that Plaintiff’s alleged disability of work-related stress is not a qualifying disability under FEHA, and that the FAC fails to allege what the essential functions of Plaintiff’s position are or how Plaintiff could have performed with a reasonable accommodation. Defendant also argues that Plaintiff admits she was placed on a medical leave of absence which is considered a reasonable accommodation under FEHA, and that Plaintiff’s workers’ compensation paperwork negates her claim of failure to accommodate and the allegation that “Defendant failed to provide workers’ compensation paperwork . . . .”

Plaintiff asserts the same arguments as made as to the First Cause of Action.

Under the FEHA, an employer must make reasonable accommodations for known physical or mental disabilities of an employee, unless it subjects the employer to an undue hardship. (Cal. Gov. Code, § 12940(m).) “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. [Citation.]” (Scotch v. Art Institute of Calif. (2009) 173 Cal.App.4th 986, 1009-1010.)

The FAC alleges that “[o]n or about July 30, 2018, Defendant hired Plaintiff to perform intake and data entry duties.” (FAC, ¶ 10.) It also alleges that Plaintiff had a physical disability for which Plaintiff was given work restrictions of limited gripping, grasping, and typing on the keyboard for her physical injuries, and that Plaintiff provided her work restrictions to defendant, but that Defendant did not offer an accommodation or engage in a good faith interactive process. (FAC, ¶ 24.) The FAC additionally alleges that due to Plaintiff’s “repeated reports of stress and anxiety, and due to Plaintiff’s repetitive injury to her neck, back, and shoulder, on or about May 20, 2020, Plaintiff was placed on a medical leave of absence,” and that “[a]fter her leave of absence, when she approached Defendant about returning to work with accommodations, Plaintiff was told that Defendant was only interested if she returned to work with full productive capacity without accommodations.” (FAC, ¶ 25.) The Second Cause of Action incorporates the prior paragraphs alleged in the FAC, alleges that Plaintiff has a disability “as alleged above,” and alleges that “[a]t all times herein alleged, Plaintiff was qualified for the position of employment that she held with Defendant and was able to perform the essential functions of that job if such reasonable accommodation had been made by Defendant.” (FAC, ¶¶ 44, 45, 48.)

As stated under the First Cause of Action, Defendant does not address the allegations of Plaintiff’s physical disability, and the Court finds that the allegations in the FAC are sufficient to allege the elements of a claim for failure to accommodate. Thus, the Court OVERRULES the demurrer to the Second Cause of Action.

Third Cause of Action for Failure to Engage in the Interactive Process

Defendant argues that Plaintiff fails to state facts specific as to what the essential functions of Plaintiff’s job were or how such proposed accommodation could have enabled her to perform her job.

Plaintiff asserts the same arguments as made as to the First Cause of Action.

Under the FEHA, employers must engage in a timely, good faith, interactive process and reasonably accommodate a disabled employee. (Cal. Gov. Code, § 12940(n).) “ ‘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.’ [Citation.]” (Scotch v. Art Institute of Calif. (2009) 173 Cal.App.4th 986, 1009-1013.)

The Third Cause of Action incorporates all prior paragraphs in the FAC, including those already set forth above for the First and Second Causes of Action, incorporates the same allegations as to Plaintiff’s disabilities, and alleges that “Defendant failed and refused to engage Plaintiff in an interactive process designed to unite Plaintiff with her job,” and that “[a]t all times herein alleged, Plaintiff was qualified for the position of employment that she held with Defendant and was able to perform the essential functions of that job if such reasonable accommodation had been made by Defendant.” (FAC, ¶¶ 59, 60, 62, 63.)

The foregoing allegations in the FAC are sufficient to allege a failure to engage in the interactive process. The Court OVERRULES the demurrer to the Third Cause of Action.

Fourth Cause of Action for Failure to Prevent Discrimination

Defendant contends that Plaintiff’s underlying discrimination claim fails, so that this claim must also fail.

Defendant’s reliance on the demurrer to the First Cause of Action is does not form a basis to sustain the demurrer to the Fourth Cause of Action as that demurrer is overruled. The demurrer to the Fourth Cause of Action is OVERRULED for the same reasons the demurrer to the First Cause of Action is overruled.

Fifth Cause of Action for Retaliation

Defendant contends that this cause of action is derivative of Plaintiff’s previous allegations and as those claims fail, this claim must also fail. Defendant also contends that Plaintiff’s claims for retaliation and harassment due to her association with Brenda Cervantes fails because Ms. Cervantes did not file her suit against Defendant until after Plaintiff left employment with Defendant. Specifically, Defendant argues that Plaintiff alleges retaliation and harassment before she was placed off work on May 20, 2020, but that Ms. Cervantes did not file suit against Defendant until May 26, 2020, which was filed after Plaintiff’s May 20, 2020 leave, such that it is factually impossible for Defendant have engaged in the conduct alleged. Defendant additionally argues that “disability by association” requires specific allegations that Defendant knew Plaintiff’s relationship with Ms. Cervantes, but that the FAC fails to allege that Plaintiff was associated with Ms. Cervantes, or that Defendant was aware of the association.

Defendant’s reliance on its arguments as to the prior four causes of action do not form a basis to sustain the demurrer as those arguments fail. In addition, even though Ms. Cervantes filed her lawsuit against Defendant on May 26, 2020, after Defendant’s alleged wrongful conduct against Plaintiff such that it could not form the basis of a retaliation claim, and the FAC alleges retaliation based upon Plaintiff’s association with Ms. Cervantes, this is not the sole basis for Plaintiff’s retaliation claim and does not dispose of the entire cause of action. The Fifth Cause of Action alleged that “as a consequence of requesting accommodation, lodging complaints with Defendants about the harassing and discriminatory acts being committed against Plaintiff, coupled with Plaintiff’s disability for which workers compensation coverage was required along with reasonable accommodation, Defendant took retaliatory action against Plaintiff by failing to conduct a good faith interactive process aimed at reuniting Plaintiff with her job, failing to determine the essential functions of Plaintiff’s job, mistreating Plaintiff, denying Plaintiff advancement and promotion, transferring Plaintiff, and ultimately terminating Plaintiff via constructive discharge.” (FAC, ¶ 84.)

Further, as Defendant fails to address Plaintiff’s physical disability upon which Plaintiff’s FEHA claims are also based, Defendant fails to dispose of the entire cause of action. Thus, the Court OVERRULES the demurrer to the Fifth Cause of Action.

Sixth Cause of Action for Wrongful Termination

Defendant contends that Plaintiff’s Wrongful Termination claim fails as Plaintiff voluntarily resigned from her job with Defendant in connection with her Workers’ Compensation settlement, and that there are no facts alleged that Plaintiff was coerced to resign. Defendant also contends that Plaintiff fails to allege facts that Defendant’s conduct created extraordinary or egregious working conditions, and that the passage of 14 months between the time Plaintiff was placed off work on May 20, 2020 and resigned in July 2021 is too remote to connect Defendant’s actions and Plaintiff’s resignation.

Plaintiff contends she only signed the “voluntary resignation” because Defendant required it before agreeing to settle the Workers’ Compensation claim, and that she approached Defendant to resume work with accommodations before signing the purported voluntary resignation. Plaintiff also argues that she bases her wrongful termination claim upon violations of Government Code section 12940 et seq (FEHA), Labor Code section 232.5, Labor Code section 6310, and Labor Code section 6400, and that the wrongful termination action satisfies the requirement that it be based upon a violation of public policy.

“In order to establish a constructive discharge, an employee must plead and prove, by the usual preponderance of the evidence standard, that the employer either intentionally created or knowingly permitted working conditions that were so intolerable or aggravated at the time of the employee's resignation that a reasonable employer would realize that a reasonable person in the employee's position would be compelled to resign.” (Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1251.) “For purposes of this standard, the requisite knowledge or intent must exist on the part of either the employer or those persons who effectively represent the employer, i.e., its officers, directors, managing agents, or supervisory employees.” (Ibid.) “The conditions giving rise to the resignation must be sufficiently extraordinary and egregious to overcome the normal motivation of a competent, diligent, and reasonable employee to remain on the job to earn a livelihood and to serve his or her employer. The proper focus is on whether the resignation was coerced, not whether it was simply one rational option for the employee.” (Id. at p. 1246.) “The essence of the test is whether, under all the circumstances, the working conditions are so unusually adverse that a reasonable employee in plaintiff’s position ‘ “ ’would have felt compelled to resign ‘ “ ’ [Citation.]” (Id. at p. 1247.) The passage of time between purportedly unbearable conditions and the resignation suggest that a reasonable employee, would not have regarded the working conditions as intolerable. (Id. at p. 1255.)

The FAC alleges that Plaintiff was placed on a medical leave of absence on or about May 20, 2020; that during this time, she was able to perform the essential functions of her job with accommodations; that after her leave of absence she approached Defendant about returning to work with accommodations, but Plaintiff was told that Defendant was only interested if Plaintiff returned to work with full productive capacity without accommodations; that “Plaintiff was constructively terminated in or around July 2021,” and that “[n]o reasonable person in Plaintiff’s position would have continued working under the same conditions.” (FAC, ¶¶ 25.) The Sixth Cause of Action incorporates all prior paragraphs alleged in the FAC, including those set forth above, and alleges that Plaintiff informed Defendant that she suffered disabilities, and that “Defendant wrongfully terminated Plaintiff via constructive discharge in violation of a substantial and fundamental public policy in that a determining and motivating factor in Defendants’ decision to terminate Plaintiff was the desire to retaliate against her because: (i) she suffered work-related stress and physical injuries, constituting a disability, (ii) she requested and required reasonable accommodation, (iii) she required an interactive process, (iv) she lodged complaints about the hostile working environment, harassment, and discrimination, (v) she requested medical leave, and (vi) because she was associated with a member of a protected class.” (FAC, ¶¶ 89, 90, 95.)

The Court notes that the FAC does not contain allegations concerning a voluntary resignation. Defendant does not specifically request judicial notice of the Voluntary Resignation, though it is included as part of Exhibit 3 to the Request for Judicial Notice which Defendant provides is the “ORDER APPROVING COMPROMISE AND RELEASE.” Even if requested, the Court declines to judicially notice said document or the truth of hearsay statements contained therein. “It is improper to rely on judicially noticed documents to prove disputed facts because judicial notice, by definition, applies solely to undisputed facts.” (Barri v. Workers’ Comp. Appeals Bd. (2018) 28 Cal.App.5th 428, 437.) “ ‘The hearsay rule applies to statements contained in judicially noticed documents, and precludes consideration of those statements for their truth unless an independent hearsay exception exists. [Citation.]’ [Citation.]” (Ibid.)

Plaintiff also does not allege that she signed the “voluntary resignation” because Defendant required it before agreeing to settle the Workers’ Compensation claim although this is argued in the opposition, but this assertion suggests that the voluntariness of the resignation is disputed. Based on the above, facts concerning Plaintiff’s purported voluntary resignation are extrinsic to the FAC and not otherwise judicially noticed.

The facts alleged do not appear to be sufficiently extraordinary and egregious, or so unusually adverse that a reasonable employee in plaintiff’s position would have felt compelled to resign. The FAC alleges that Plaintiff took a leave of absence from May 20, 2020 and was then constructively terminated in or around July 2021, such that it appears that well over a year passed from when Plaintiff was subjected to the allegedly unbearable working conditions to the alleged constructive termination. In turn, the purported intolerable working conditions that existed prior to May 20, 2020, would be remote in time from the resignation.

Based on the foregoing, the Court SUSTAINS, with 20 days’ leave to amend, as this is the first demurrer upon which the Court has ruled.

Seventh Cause of Action for Violation of Business & Professions Code § 17200

Defendant argues that Plaintiff fails to state with reasonable particularly the facts supporting the statutory elements of any violation as Plaintiff has not alleged that she is a member of a protected class or that she was engaged in a protected activity, and offers no specific facts how Defendant’s alleged conduct constitutes unfair competition. Defendant asserts that as Plaintiff’s “borrowed” claims fail, this claim must also fail.

Plaintiff does not directly address this cause of action.

“The UCL [Business and Professions Code section 17200 et seq.] defines unfair competition as ‘any unlawful, unfair or fraudulent business act or practice . . . .” [Citation.]” (In re Tobacco Cases (2009) 46 Cal.4th 298, 311.) Thus, there are three prongs under which a claim may be established under the UCL. (Daro v. Superior Court (2007) 151 Cal.App.4th 1079, 1093.) “An act can be alleged to violate any or all of the three prongs of the UCL—unlawful, unfair, or fraudulent.” (Berryman v. Merit Property Management, Inc. (2007) 452 Cal.App.4th 1544, 1554.) “It has long been settled that the UCL’s ‘sweeping language’ permits a court to enjoin ongoing wrongful business conduct ‘in whatever context such activity might occur.’ [Citation.]” (Alch v. Superior Court (2004) 122 Cal.App.4th 339, 400-401.) “The UCL is not confined to ‘anti-competitive’ business practices. [Citation.] Additionally, its coverage is not limited to ‘deceptive’ practices. [Citation.] A practice is enjoinable as unlawful ‘totally apart from its inherent “fairness.” ’ [Citation.]” (Id. at p. 401.)

“A plaintiff alleging unfair business practices under [Business and Professions Code Sections 17000, et seq.] must state with reasonable particularity the facts supporting the statutory elements of the violation. (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 619.) The UCL borrows violations of other laws in proscribing unlawful business practices. (Solus Industrial Innovations, LLC v. Superior Court (2018) 4 Cal.5th 316, 341.) “An unlawful business practice or act is an act or practice, committed pursuant to a business activity, that is at the same time forbidden by law.” (Klein v. Earth Elements, Inc. (1997) 59 Cal. App. 4th 965, 969.) Injunctive relief under the UCL may be an appropriate remedy where a business has engaged in an unlawful practice of discrimination in violation of FEHA. (See Herr v. Nestle U.S.A., Inc. (2003) 109 Cal.App.4th 779, 789 [finding that injunctive relief under the UCL is an appropriate remedy where a business has engaged in an unlawful practice of discriminating against older workers in violation of FEHA].)

Here, The FAC alleges that Defendant discriminated and retaliated against her for her mental disability, her physical disability, and her association with her mother, who was terminated by Defendant after her mother took medical leave due to a disability. (FAC, ¶¶ 11-26.) Plaintiff alleges that she engaged in “the protected activity of opposing discrimination,” when she complained to Defendant’s Human Resources department about her interaction with Ms. Arreygue concerning the collection of Plaintiff’s mother’s belongings among other complaints related to harassment and discrimination as well as in making requests for accommodation for her disabilities and complaining about the hostile work environment. (FAC, ¶¶ 14-26, 85.) The Seventh Cause of Action incorporates prior paragraphs in the FAC and alleges that Defendant has engaged in unfair and unlawful business practices “as set forth above,” and that “[b]y engaging in the above-described acts and practices, Defendant, and each of them, have committed one or more acts of unfair, unlawful or fraudulent competition within the meaning of Business & Profession Code section 17200 et seq.” (FAC, ¶¶ 99, 100, 102.) Plaintiff seeks “restitution, injunctive relief, and all other relief allowed under Business & Professions Code § 17200 et seq., plus interest and costs.” (FAC, ¶ 105.)

As the demurrer is overruled as to the First through Fifth Causes of Action consisting of Plaintiff’s FEHA-based claims, and the FAC sufficiently alleges said claims or Defendant fails to dispose of the entire cause of action, this claim does not fail. Defendant fails to address the alleged physical disability and fails to resolve the entire cause of action. The FAC alleges with reasonably particularly the facts supporting the allegedly unlawful, unfair or fraudulent business practice for Plaintiff’s FEHA-based claims. Thus, the Court OVERRULES the demurrer to the Seventh Cause of Action.

Defendant’s Request for Judicial Notice

Defendant requests that the Court judicially notice four documents consisting of three documents in the Workers’ Compensation files, and the original complaint in this action pursuant to Evidence Code section 452(d).

The Court GRANTS Defendant’s request as to the original complaint in this action pursuant to Evidence Code section 452(d), but declines to take the truth of hearsay statements therein. (Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 882.) The Court DENIES the remainder of Defendant’s request as the documents related to Plaintiff’s claim before the WCAB are not relevant to the determination of the demurrer.

A court may deny a request for judicial notice on the ground that the material is not relevant to the determination of the issues. (State Compensation Ins. Fund v. ReadyLink Healthcare, Inc. (2020) 50 Cal.App.5th 422, 442-443.)

Plaintiff to file an amended complaint rectifying the deficiencies to the Sixth Cause of Action within 20 days of the notice of ruling.

Defendant to give notice.