Judge: Robert B. Broadbelt, Case: 20STCV45910, Date: 2023-04-25 Tentative Ruling

Tentative rulings are sometimes, but not always, posted. The purpose of posting a tentative ruling is to to help focus the argument. The posting of a tentative ruling is not an invitation for the filing of additional papers shortly before the hearing.

Case Number: 20STCV45910    Hearing Date: April 25, 2023    Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

MOVING PARTIES:             Defendants New Hampshire Ball Bearings, Inc., and Barkev Fronjian

RESPONDING PARTY:       Plaintiff Maria Sao

Demurrer to Third Amended Complaint

The court considered the moving, opposition, and reply papers filed in connection with this demurrer.

REQUEST FOR JUDICIAL NOTICE

The court grants defendants New Hampshire Ball Bearings, Inc. and Barkev Fronjian’s request for judicial notice.  (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604-605.)

BACKGROUND

Plaintiff Maria Sao (“Plaintiff”) filed the operative Third Amended Complaint in this employment action on August 31, 2022, against defendants New Hampshire Ball Bearings, Inc. (“NHBB”) and Barkev Fronjian (“Fronjian”) (collectively, “Defendants”).

Plaintiff alleges 15 causes of action for (1) gender harassment; (2) age harassment;       (3) disability harassment; (4) gender discrimination; (5) age discrimination; (6) disability discrimination; (7) failure to accommodate disability; (8) failure to engage in the interactive process; (9) retaliation; (10) retaliation; (11) failure to prevent discrimination and harassment; (12) wrongful termination / adverse treatment; (13) violation of the Tom Bane Civil Rights Act; (14) constructive termination in violation of public policy; and (15) intentional infliction of emotional distress.

Defendants move the court for an order sustaining their demurrer to Plaintiff’s first through sixth, eighth, 10th, 14th, and 15th causes of action.

DISCUSSION

As a threshold matter, the court denies Plaintiff’s request that the court continue the hearing on this demurrer pending discovery.  (Opp., pp. 16:12-17:12.)

The court sustains Defendants’ demurrer to the first cause of action for gender harassment because it does not state facts sufficient to constitute a cause of action since Plaintiff has not alleged facts establishing that Defendants subjected Plaintiff to unwelcome harassment “based on her protected status” (i.e., her gender).  (Code Civ. Proc., § 430.10, subd. (e); Ortiz v. Dameron Hospital Assn. (2019) 37 Cal.App.5th 568, 581 [elements of cause of action for hostile work environment claim].)

The court notes that Plaintiff has alleged new facts that were not included in her previous complaint regarding animus toward her based on her protected characteristics.  For example, the Third Amended Complaint alleges that Fronjian expressed animus toward older women by making various comments about them, including by stating that “older women do not belong in the workplace” and that another older female employee “was too old to work….”  (TAC ¶ 17.)  However, Plaintiff did not describe this conduct in her verified answers to Defendants’ interrogatories.  (RJN Ex. 1, Pl. Responses to Form Interrogatories, Employment, Nos. 203.1 and 202.1.)  Although the facts alleged in the pleading are deemed to be true on demurrer, the court is permitted to “take judicial notice of records such as admissions, answers to interrogatories, affidavits, and the like, when considering a demurrer, only where they contain statements of the plaintiff or his agent which are inconsistent with the allegations of the pleading before the court.”  (Del E. Webb Corp., supra, 123 Cal.App.3d at pp. 604-605.)  The court has granted Defendants’ request for judicial notice as to Plaintiff’s discovery responses, as set forth above.  Although the court notes that, in opposition, Plaintiff states that she “has since served further responses and the responses attached to Shen’s declaration are not the operative responses[,]”  Plaintiff has not requested that the court take judicial notice of any amended interrogatory responses showing that Plaintiff’s complaint is not inconsistent with Plaintiff’s responses to Defendants’ interrogatories. (Opp., p. 10:21-22.) 

The court therefore finds that Plaintiff’s discovery responses, which omit this instance of conduct alleged in the Third Amended Complaint, are inconsistent with the Third Amended Complaint and therefore finds that these allegations may not support Plaintiff’s causes of action.   (RJN Ex. 1, Pl. Responses to Form Interrogatories, Employment, Nos. 203.1 and 202.1; Del E. Webb Corp., supra, 123 Cal.App.3d at pp. 604-605.)

The court sustains Defendants’ demurrer to the second cause of action for age harassment because it does not state facts sufficient to constitute a cause of action since Plaintiff has not alleged facts showing that Plaintiff was subject to unwelcome harassment based on “her protected status” (i.e., age).  (Code Civ. Proc., § 430.10, subd. (e); Ortiz, supra, 37 Cal.App.5th at p. 581.)  As set forth above, the court notes that Plaintiff has alleged facts showing that Fronjian expressed animus toward older women by making various comments about them based on their age and gender; however, the court has found that these allegations may not support Plaintiff’s causes of action since Plaintiff did not describe this conduct in her discovery responses, rendering her responses inconsistent with the Third Amended Complaint.  (TAC ¶ 17; RJN Ex. 1, Pl. Responses to Form Interrogatories, Employment, Nos. 203.1 and 202.1; Del E. Webb Corp., supra, 123 Cal.App.3d at pp. 604-605.)

The court sustains Defendants’ demurrer to the third cause of action for disability harassment because it does not state facts sufficient to constitute a cause of action since Plaintiff has not alleged facts showing that she was subjected to unwelcome harassment “based on her protected status” (i.e., her disability).  (Code Civ. Proc., § 430.10, subd. (e); Ortiz, supra, 37 Cal.App.5th at p. 581.)  The court notes that Plaintiff has alleged that, after she returned from her disability leave of absence, “Fronjian expressed that Plaintiff should have remorse for the months of extra work for everyone caused by her protected leave, and that she should apologize and say she is ready to do what needs to be done.”  (TAC ¶ 57.)  However, the court finds that this allegation may not support Plaintiff’s causes of action since Plaintiff did not describe this conduct in her discovery responses, rendering them inconsistent with the allegations of the Third Amended Complaint.  (RJN Ex. 1, Pl. Responses to Form Interrogatories, Employment, Nos. 203.1 and 202.1; Del E. Webb Corp., supra, 123 Cal.App.3d at pp. 604-605.)

The court sustains NHBB’s demurrer to the fourth cause of action for gender discrimination because it does not state facts sufficient to constitute a cause of action since Plaintiff has not alleged facts establishing that the circumstances of her constructive termination “suggest[] discriminatory motive.”  (Code Civ. Proc., § 430.10, subd. (e); Husman v. Toyota Motor Credit Corp. (2017) 12 Cal.App.5th 1168, 1181 [prima facie case for unlawful discrimination] [internal quotations omitted].)  As set forth above, the allegations regarding discriminatory animus against older women cannot support this cause of action since this conduct was omitted from Plaintiff’s discovery responses.  (Del E. Webb Corp., supra, 123 Cal.App.3d at pp. 604-605.)

The court sustains NHBB’s demurrer to the fifth cause of action for age discrimination because it does not state facts sufficient to constitute a cause of action since Plaintiff has not alleged facts showing circumstances that “suggest[] discriminatory motive” based on Plaintiff’s age for the same reasons set forth in connection with the fourth cause of action.  (Code Civ. Proc., § 430.10, subd. (e); Husman, supra, 12 Cal.App.5th at p. 1181 [internal quotations omitted]; Del E. Webb Corp., supra, 123 Cal.App.3d at pp. 604-605.)

The court sustains NHBB’s demurrer to the sixth cause of action for disability discrimination because it does not state facts sufficient to constitute a cause of action since Plaintiff has not alleged facts showing circumstances that “suggest[] discriminatory motive” based on Plaintiff’s disability since the allegation establishing animus toward her based on her disability (TAC ¶ 57) was not included in her discovery responses and therefore may not support this cause of action.  (Code Civ. Proc., § 430.10, subd. (e); Husman, supra, 12 Cal.App.5th at p. 1181 [internal quotations omitted]; Del E. Webb Corp., supra, 123 Cal.App.3d at pp. 604-605.)

The court sustains NHBB’s demurrer to the eighth cause of action for failure to engage in the interactive process because it does not state facts sufficient to constitute a cause of action since Plaintiff does not allege that NHBB failed to engage in the interactive process with Plaintiff.  (Code Civ. Proc., § 430.10, subd. (e); Gov. Code, § 12940, subd. (n) [it is an unlawful employment practice for an employer to fail to engage in a timely, good faith, interactive process with the employee to determine effective reasonable accommodations].)

“‘[A]n employer’s failure to properly engage in the [interactive process] is separate from the failure to reasonably accommodate an employee’s disability and gives rise to an independent cause of action.’”  (Kaur v. Foster Poultry Farms, LLC (2022) 83 Cal.App.5th 320, 347.)  A claim for failure to engage in the interactive process “is the appropriate cause of action where the employee is unable to identify a specific, available reasonable accommodation while in the workplace and the employer fails to engage in a good faith interactive process to help identify one, but the employee is able to identify a specific, available reasonable accommodation through the litigation process.”  (Nadaf-Rahrov v. Neiman Marcus Group, Inc. (2008) 166 Cal.App.4th 952, 983.)  Although Plaintiff has alleged that NHBB “failed to abide by her work restrictions, pushed Plaintiff to work beyond her work restrictions[,]” “pressured Plaintiff regarding the completion of her work[,]” denied Plaintiff’s “legitimate request” to sit with Catherine Krause, and “refused to honor Plaintiff’s accommodation[,]” Plaintiff has not alleged facts establishing that NHBB failed “to engage in a good faith interactive process to help identify” a reasonable accommodation for Plaintiff.  (TAC ¶¶ 54-55, 132.)  Instead, Plaintiff has alleged facts establishing that Defendant has failed to provide a reasonable accommodation, which is a separate cause of action.  (Kaur, supra, 83 Cal.App.5th at p. 347; Nadaf-Rahrov, supra, 166 Cal.App.4th at p. 983.)

The court sustains NHBB’s demurrer to the 10th cause of action for retaliation (Gov. Code, § 12940, subd. (m)(2)) because Plaintiff has stated in her opposition that she “will voluntarily dismiss” this cause of action.  (Opp., p. 14:17-18.)

The court overrules NHBB’s demurrer to the 14th cause of action for constructive termination in violation of public policy because the court already overruled NHBB’s demurrer to this cause of action on July 22, 2022.  (July 22, 2022 Order, pp. 4:27-5:5.)  Further, although NHBB argues that this cause of action involves different primary rights and therefore constitutes separate causes of action, the court finds that, as pleaded, this cause of action is alleged as one single cause of action.  Thus, the court cannot rule on whether portions of this cause of action are insufficiently pleaded.  (PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1682 [“A demurrer does not lie to a portion of a cause of action”].)

The court sustains Defendants’ demurrer to the 15th cause of action for intentional infliction of emotional distress because it does not state facts sufficient to constitute a cause of action since “[t]he alleged wrongful conduct . . . occurred at the worksite, in the normal course of the employer-employee relationship, and therefore workers’ compensation is [Plaintiff’s] exclusive remedy for any injury that may have resulted.”  (Code Civ. Proc., § 430.10, subd. (e); Miklosy v. Regents of University of California (2008) 44 Cal.4th 876, 902.)

The burden is on the plaintiff “to articulate how it could amend its pleading to render it sufficient.”¿ (Palm Springs Villas II Homeowners Assn., Inc., supra, 248 Cal.App.4th at p. 290.)¿ To satisfy that burden, a plaintiff “must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading.”¿ (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.)¿

The court finds that Plaintiff has shown how she could amend her pleading to render it sufficient as to the first through sixth causes of action based on the facts alleged in the Third Amended Complaint that were not provided in discovery, to the extent that Plaintiff serves amended discovery responses putting Defendants on notice of those facts.  The court sustains the demurrer to the eighth, 10th, and 15th causes of action without leave to amend because the court finds that Plaintiff has not met her burden to show how she could amend these causes of action to render them sufficient since (1) she has not identified any facts showing that she could amend her failure to engage in the interactive process claim; (2) she has agreed to voluntarily dismiss the 10th cause of action; and (3) she has not shown how she could amend her intentional infliction of emotional distress cause of action to fall outside the scope of the Workers’ Compensation Act.

ORDER

The court sustains defendants New Hampshire Ball Bearings, Inc. and Barkev Fronjian’s demurrer to plaintiff Maria Sao’s first, second, third, and 15th causes of action.

The court sustains defendant New Hampshire Ball Bearings, Inc.’s demurrer to plaintiff Maria Sao’s fourth, fifth, sixth, eighth, 10th, and 15th causes of action.

The court overrules defendant New Hampshire Ball Bearings, Inc.’s demurrer to plaintiff Maria Sao’s 14th cause of action.

The court grants plaintiff Maria Sao 20 days leave to file a Fourth Amended Complaint that cures the deficiencies described in connection with the first, second, third, fourth, fifth, and sixth causes of action.  The court denies plaintiff Maria Sao leave to amend the eighth, 10th, and 15th causes of action.

The court orders defendants New Hampshire Ball Bearings, Inc. and Barkev Fronjian to give notice of this ruling.

IT IS SO ORDERED.

DATED:  April 25, 2023

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court