Judge: Robert B. Broadbelt, Case: 22STCV32743, Date: 2023-10-23 Tentative Ruling

Case Number: 22STCV32743    Hearing Date: October 23, 2023    Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

MOVING PARTY:                Defendant Department of Motor Vehicles

RESPONDING PARTY:       Plaintiff Gladys Hampton

Demurrer to First Amended Complaint

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

REQUEST FOR JUDICIAL NOTICE

The court grants defendant Department of Motor Vehicles’ request for judicial notice.  (Evid. Code, § 452, subd. (c).)

DISCUSSION

Plaintiff Gladys Hampton (“Plaintiff”) filed the operative First Amended Complaint in this FEHA action on February 10, 2023, alleging eight causes of action against defendant Department of Motor Vehicles (“Defendant”) for (1) disability discrimination; (2) failure to accommodate; (3) failure to engage in the interactive process; (4) gender discrimination; (5) age discrimination; (6) harassment on the bases of disability, gender, and age; (7) retaliation; and (8) failure to prevent discrimination, harassment, and retaliation.

Defendant now moves the court for an order sustaining its demurrer to each cause of action alleged in Plaintiff’s First Amended Complaint.

The court sustains Defendant’s demurrer to the first cause of action for disability discrimination because it does not state facts sufficient to constitute a cause of action since Plaintiff has not (1) alleged facts establishing that she has a disease, disorder, or condition that affects the body systems enumerated by statute that limits a major life activity, instead alleging that, as a result of the actions of Defendant’s employee, Brian Burns (“Burns”), she “continues to suffer from . . . physical injuries such as headaches, body aches, an abnormally high heart rate, and inability to sleep[,]” or (2) alleged facts establishing that she has a mental or psychological disorder or condition that limits a major life activity, instead alleging that, as a result of Burns’ actions, she “continues to suffer from depression, anxiety, stress, humiliation, and trauma,” which (i) does not sufficiently allege that she has a psychological disorder or condition that limits a major life activity, (ii) appears to describe the existence of noneconomic damages, not the existence of a disability, and (iii) appears to allege that Plaintiff could not work with a particular employee due to stress and anxiety, which does not constitute a mental disability.  (Code Civ. Proc., § 430.10, subd. (e); Gov. Code, §§ 12926, subds. (m) [defining physical disability], (j) [defining mental disability], 12940, subd. (a) [prohibiting discrimination because of a person’s physical or mental disability]; FAC ¶¶ 20, 38; Higgins-Williams v. Sutter Medical Foundation (2015) 237 Cal.App.4th 78, 85 [“an employee’s inability to work under a particular supervisor because of anxiety and stress related to the supervisor’s standard oversight of the employee’s job performance does not constitute a mental disability under FEHA”] [emphasis in original].)  Thus, the court finds that Plaintiff has not alleged the element of a physical or mental disability.[1]  (Ibid.)

The court sustains Defendant’s demurrer to the second cause of action for failure to accommodate because it does not state facts sufficient to constitute a cause of action since, for the reasons set forth above, Plaintiff has not alleged facts establishing that she had a physical or mental disability covered by FEHA.  (Code Civ. Proc., § 430.10, subd. (e); Gov. Code, § 12940, subd. (m); Cuiellette v. City of Los Angeles (2011) 194 Cal.App.4th 757, 766 [elements of a failure to accommodate claim include that “the plaintiff has a disability covered by the FEHA”].)

The court sustains Defendant’s demurrer to the third 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, for the reasons set forth above, Plaintiff has not alleged facts establishing that she had a physical or mental disability covered by FEHA.  (Code Civ. Proc., § 430.10, subd. (e); Gov. Code, § 12940, subd. (n) [employer has duty to engage in interactive process in response to request for reasonable accommodation “by an employee or applicant with a known physical or mental disability or known medical condition”].)

The court sustains Defendant’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 she was subjected to an adverse employment action, and instead has alleged that the adverse employment action she suffered was “unjustified harassment due to her gender[.]”  (Code Civ. Proc., § 430.10, subd. (e); FAC ¶ 67; Soria v. Univision Radio Los Angeles, Inc. (2016) 5 Cal.App.5th 570, 583-584 [elements of claim for unlawful discrimination under FEHA].)  The court notes that, elsewhere in the First Amended Complaint, Plaintiff has alleged that Defendant allowed her to telework, which she alleges “frustrate[d] her ability to perform her duties as a manager and to timely complete her heavy workload.”  (FAC ¶ 24.)  However, the decision to make Plaintiff’s position remote does not appear to be alleged as an adverse employment action, and instead is alleged to support Plaintiff’s allegation that Defendant failed to provide to her a reasonable accommodation.  (FAC ¶¶ 24, 30.)  The court also notes that, while Plaintiff asserts in her opposition that she was “forced out of her job[,]” she did not allege that fact in her operative complaint.  (Opp., p. 5, n. 3.)  Finally, although Plaintiff argues that Defendant’s denial of her request for a hardship transfer was an adverse employment action, the court disagrees; “[n]o court has ever held that a failure to reasonably accommodate an employee’s disability—which is a separate cause of action under FEHA (§ 12940, subd. (m))—can qualify as the adverse action underlying a discrimination or retaliation claim.”  (Opp., p. 5:19-20; Doe v. Department of Corrections & Rehabilitation (2019) 43 Cal.App.5th 721, 735-736.)

The court sustains Defendant’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 establishing that she was subjected to an adverse employment action, and instead has alleged only that “she was subjected to an adverse employment decision in that she was subjected to unjustified harassment due to her age relating to her duties as an employee of Defendant[,]” which is insufficient.  (Code Civ. Proc., § 430.10, subd. (e); FAC ¶ 78; Soria, supra, 5 Cal.App.5th at pp. 583-584 [elements of claim for unlawful discrimination under FEHA].

The court sustains Defendant’s demurrer to the sixth cause of action for harassment on the bases of disability, gender, and age because it does not state facts sufficient to constitute a cause of action since (1) as to disability harassment, Plaintiff has not alleged facts establishing that she had a disability for the reasons set forth above, and (2) Plaintiff has not alleged facts establishing that Defendant subjected Plaintiff to unwelcome harassment that was based on her protected characteristics (i.e., her age and gender).  (Code Civ. Proc., § 430.10, subd. (e); Galvan v. Dameron Hospital Assn. (2019) 37 Cal.App.5th 549, 563 [elements of cause of action for harassment].)

The court sustains Defendant’s demurrer to the seventh cause of action for retaliation because it does not state facts sufficient to constitute a cause of action since (1) Plaintiff has not alleged facts establishing an adverse employment action, instead alleging that Defendant intensified their harassment and mistreatment of Plaintiff (i.e., other claims under FEHA), and (2) although Plaintiff alleges in conclusory fashion that she was “ultimately terminate[d]” from her employment, she has also alleged that she is “currently employed” at the Van Nuys location. (Code Civ. Proc., § 430.10, subd. (e); FAC ¶¶ 99, 101, 21; Meeks v. Autozone, Inc. (2018) 24 Cal.App.5th 855, 878-879 [elements of cause of action for retaliation under FEHA].)

The court sustains Defendant’s demurrer to the eighth cause of action for failure to prevent discrimination, harassment, and retaliation because it does not state facts sufficient to constitute a cause of action since the court has sustained the underlying causes of action for discrimination, harassment, and retaliation.  (Code Civ. Proc., § 430.10, subd. (e).)

ORDER

The court sustains defendant Department of Motor Vehicles’ demurrer to plaintiff Gladys Hampton’s First Amended Complaint.

The court grants plaintiff Gladys Hampton 20 days leave to file a Second Amended Complaint that cures the deficiencies set forth above.

The court orders defendant Department of Motor Vehicles to give notice of this ruling.

IT IS SO ORDERED.

DATED:  October 23, 2023

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court