Judge Robert B. Broadbelt, Case Number: 24STCV21813, Date: 2025-06-13 Tentative Ruling

Judge: Robert B. Broadbelt, Case: 24STCV21813, Date: 2025-06-13 Tentative Ruling

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

The court grants defendant Daiohs USA, Inc.’s request to take judicial notice of the Complaint filed in this action by plaintiff Francisco Lopez on August 27, 2024. (Evid. Code, § 452, subd. (d).)

Plaintiff Francisco Lopez (“Plaintiff”) filed the operative First Amended Complaint in this action on November 7, 2024, against defendants Daiohs USA, Inc., Daiohs First Choice Services, and First Choice Services. Plaintiff alleges 10 causes of action for (1) discrimination; (2) failure to provide reasonable accommodation; (3) failure to engage in an interactive process; (4) harassment; (5) retaliation; (6) whistleblower retaliation; (7) sick leave retaliation; (8) failure to prevent discrimination and retaliation; (9) wrongful discharge in violation of public policy; and (10) unfair business practices.

Defendant Daiohs USA, Inc. (“Defendant”) moves the court for an order (1) sustaining its demurrer to each cause of action alleged against it, and (2) striking from the First Amended Complaint Plaintiff’s requests for punitive damages.

As a threshold matter, the court notes that Defendant contends that Plaintiff alleged, in his initial Complaint, that he was terminated for reasons other than the alleged discrimination and retaliation. (Dem., pp. 1:23-2:3.) Defendant therefore requests that the court consider those allegations under the sham pleading doctrine. (Ibid.)

“Under the sham pleading doctrine, ‘if a verified complaint contains allegations fatal to a cause of action, a plaintiff cannot cure the defect by simply omitting those allegations in an amended pleading without explanation.’” (Dones v. Life Insurance Company of North America (2020) 55 Cal.App.5th 665, 688 [internal citation omitted].) The sham pleading rule cannot be mechanically applied, and “must be taken together with its purpose, which is to prevent [an] amended pleading which is only a sham, when it is apparent that no cause of action can be stated truthfully.” (Ibid. [internal quotation marks and citations omitted].)

As noted by Defendant, Plaintiff’s Complaint alleged, inter alia, that (1) on February 26, 2023, Plaintiff’s Regional Manager, Scott Brandt (“Brandt”) threated to terminate Plaintiff if he copied any other manager on future emails (Compl., ¶ 17), (2) on February 26, 2023, Plaintiff copied other managers in an email attaching certain of his forms and complaining of Brandt’s threat and the behavior of Doug Kent (Compl., ¶ 18), (3) on February 27, 2023, Plaintiff made an official complaint about Brandt (Compl., ¶ 19), and (4) later on February 27, 2023, Plaintiff’s employment was wrongfully terminated, and Plaintiff “was told he had disobeyed the order given by Mr. Brandt about not copying other managers on emails” (Compl., ¶ 19). The court also acknowledges that Plaintiff alleged that he was told that his position could only be held open for three months, but did not allege that fact in his First Amended Complaint. (Compl., ¶ 13.)

The court, however, disagrees that these earlier allegations constitute admissions as to another, nondiscriminatory or nonretaliatory reason behind Plaintiff’s termination (i.e., that Plaintiff was terminated for copying other managers on emails). For example, Plaintiff’s Complaint did not expressly allege that the true reason for his termination was his conduct in copying other managers on emails. Instead, the Complaint alleged only that Plaintiff “was told he had disobeyed” that order (Compl., ¶ 19). Moreover, the Complaint also alleged the motivating reasons for Defendant’s decision to terminate Plaintiff to be his disability (Compl., ¶ 27), his requests for accommodation and taking medical leave (Compl., ¶ 47), his taking sick leave (Compl., ¶ 56), and Defendant’s belief that Plaintiff might disclose information of its violations of statutes, rules, or regulations in addition to Plaintiff’s complaints to his supervisors (Compl., ¶ 66).

Thus, the court finds, upon review of the Complaint, First Amended Complaint, and arguments presented by Defendant in its demurrer, that the omitted or altered allegations in the First Amended Complaint do not show that “no cause of action [based on allegations that Plaintiff was terminated for reasons other than his copying managers on emails] can be stated truthfully” under the sham pleading doctrine. (Dones, supra, 55 Cal.App.5th at p. 688.)

The court overrules Defendant’s demurrer to the first cause of action for discrimination in violation of the Fair Employment and Housing Act (Gov. Code, § 12900 et seq.) (“FEHA”) because it states facts sufficient to constitute a cause of action since (1) Defendant has not shown that the allegations in the First Amended Complaint establish that Plaintiff was not qualified to perform his job with or without restrictions based solely on the allegation that Plaintiff was released “to return to work with restrictions” (FAC ¶ 22), (2) Plaintiff has sufficiently alleged that he was capable of performing all his essential job functions with or without reasonable accommodations at all relevant times (Compl., ¶ 11), (3) the facts alleged in the First Amended Complaint, including the allegations showing that Plaintiff was terminated approximately one week after he was released to return to work with restrictions (FAC ¶¶ 22, 30), are sufficient, for purposes of demurrer, to show circumstances suggesting discriminatory animus and causation, and (4) the court has determined, for the reasons set forth above, that the allegations in the Complaint do not establish that Plaintiff was terminated for copying other managers on emails. (Code Civ. Proc., § 430.10, subd. (e); Gov. Code, § 12940, subd. (a)(1); Diego v. City of Los Angeles (2017) 15 Cal.App.5th 338, 350 [prima facie case of discrimination].)

The court overrules Defendant’s demurrer to the second cause of action for failure to provide reasonable accommodation because it states facts sufficient to constitute a cause of action since (1) Defendant has not shown that the allegations in the First Amended Complaint establish that Plaintiff was not qualified to perform the essential functions of the position that he held, and (2) Plaintiff has alleged, and therefore the court must accept as true, that he was able to perform the essential duties of his job with reasonable accommodations (FAC ¶ 45), but that Defendant failed to provide reasonable accommodations (FAC ¶¶ 27 [alleging that Plaintiff asked why he could not be accommodated, to which Defendant’s Director of Human Resources did not respond], 46). (Code Civ. Proc., § 430.10, subd. (e); Kaur v. Foster Poultry Farms LLC (2022) 83 Cal.App.5th 320, 346 [elements of failure to accommodate claim].)

The court overrules Defendant’s demurrer to the third cause of action for failure to engage in the interactive process because it states facts sufficient to constitute a cause of action since Plaintiff has alleged that (1) he (i) provided to Defendant information required for him to return to work, including the doctor’s notes setting forth Plaintiff’s work restrictions (FAC ¶¶ 22-23), and (ii) explained that his work restrictions would not interfere with his ability to perform his job (FAC ¶ 23), (2) Defendant’s Human Resources Director stated that she would review the restrictions (FAC ¶ 24), and (3) after Plaintiff reached out to the Director to ask why he could not be accommodated, she did not respond (FAC ¶ 27), which the court finds sufficiently shows that Defendant, in response to Plaintiff’s request for reasonable accommodation (i.e., Plaintiff’s email with his work restrictions), did not engage in the interactive process to determine effective reasonable accommodations. (Code Civ. Proc., § 430.10, subd. (e); Shirvanyan v. Los Angeles Community College Dist. (2020) 59 Cal.App.5th 82, 88-89 [discussing FEHA’s obligation to engage in the interactive process].)

The court sustains Defendant’s demurrer to the fourth cause of action for harassment in violation of FEHA because it does not state facts sufficient to constitute a cause of action since Plaintiff did not allege facts establishing that Defendant subjected Plaintiff to harassment that unreasonably interfered with his work performance by creating an intimidating, hostile, or offensive work environment because of his disability. (Code Civ. Proc., § 430.10, subd. (e); Galvan v. Dameron Hospital Assn. (2019) 37 Cal.App.5th 549, 563 [elements of prima facie case of harassment].)

The court overrules Defendant’s demurrer to the fifth cause of action for retaliation in violation of FEHA because it states facts sufficient to constitute a cause of action since Plaintiff has alleged sufficient facts to establish, on demurrer, that Defendant terminated Plaintiff as a result of his engaging in protected activity (e.g., by requesting accommodations (Compl., ¶ 72)) since Plaintiff has alleged facts establishing the close temporal proximity between Plaintiff’s requesting accommodations on or around February 21, 2023 (FAC ¶¶ 22-23) and Defendant’s termination of Plaintiff on February 27, 2023 (FAC ¶ 30).[1] (Code Civ. Proc., § 430.10, subd. (e); Meeks v. Autozone, Inc. (2018) 24 Cal.App.5th 855, 878-879 [elements of prima facie case of retaliation under FEHA].)

The court sustains Defendant’s demurrer to the sixth cause of action for whistleblower retaliation because it does not state facts sufficient to constitute a cause of action since Plaintiff did not allege facts establishing (1) Defendant’s policies that Plaintiff asserts he reasonably believed violate federal, state, or local statutes, rules or regulations (FAC ¶ 82), (2) when he complained about those specific policies (FAC ¶ 83), and (3) the statutes, rules, or regulations which might have been violated by the conduct disclosed. (Code Civ. Proc., § 430.10, subd. (e); Ross v. County of Riverside (2019) 36 Cal.App.5th 580, 592.)

The court sustains Defendant’s demurrer to the seventh cause of action for sick leave retaliation because it does not state facts sufficient to constitute a cause of action since Plaintiff did not allege facts establishing that Defendant discharged Plaintiff for using sick leave to attend to an illness pursuant to Labor Code section 233. (Code Civ. Proc., § 430.10, subd. (e); Lab. Code, § 233, subd. (c).)

The court overrules Defendant’s demurrer to the eighth cause of action for failure to prevent discrimination and retaliation because it states facts sufficient to constitute a cause of action since Plaintiff (1) has sufficiently alleged causes of action for discrimination and retaliation for the reasons set forth above, and (2) has alleged that Defendant failed to take all reasonable steps necessary to prevent that discrimination and harassment (FAC ¶ 102). (Code Civ. Proc., § 430.10, subd. (e); Dickson v. Burke Williams, Inc. (2015) 234 Cal.App.4th 1307, 1314.)

The court overrules Defendant’s demurrer to the ninth cause of action for wrongful discharge in violation of public policy because it states facts sufficient to constitute a cause of action since Plaintiff has sufficiently alleged that he was terminated because of his disability, which is sufficient to establish that he was terminated in violation of the public policy set forth in FEHA. (Code Civ. Proc., § 430.10, subd. (e); Garcia-Brower v. Premier Automotive Imports of CA, LLC (2020) 55 Cal.App.5th 961, 973 [elements of claim for wrongful discharge]; City of Moorpark v. Superior Court (1998) 18 Cal.4th 1143, 1161 [“disability discrimination can form the basis of a common law discharge claim”].)

The court overrules Defendant’s demurrer to the 10th cause of action for unfair business practices because (1) Defendant contends that the court should sustain its demurrer to this cause of action on the ground that Plaintiff has not adequately alleged any violations of FEHA, such that those violations cannot serve as the predicate violations for unfair business practices as alleged (FAC ¶ 113), but (2) the court has overruled Defendant’s demurrer to certain of Plaintiff’s causes of action under FEHA for the reasons set forth above. (Code Civ. Proc., § 430.10, subd. (e).) The court notes that Defendant has not challenged any other element of this cause of action as insufficiently pleaded.

Defendant requests an order striking from the First Amended Complaint Plaintiff’s prayer for punitive damages. (FAC Prayer, p. 14:11.)

The court grants Defendant’s motion to strike because the court finds that Plaintiff did not allege sufficient facts establishing that Defendant is guilty of malice, oppression, or fraud. (Civ. Code, § 3294, subds. (a), (c).)

The court overrules defendant Daiohs USA, Inc.’s demurrer to plaintiff Francisco Lopez’s first through third, fifth, and eighth through 10th causes of action.

The court sustains defendant Daiohs USA, Inc.’s demurrer to plaintiff Francisco Lopez’s fourth, sixth, and seventh causes of action.

The court grants defendant Daiohs USA, Inc.’s motion to strike. The court orders that the prayer for punitive damages (set forth on page 14, line 11 of the First Amended Complaint), is stricken.

The court grants plaintiff Francisco Lopez 20 days leave, from the date of service of this order, to file a Second Amended Complaint that cures the defects (1) in the fourth, sixth, and seventh causes of action, and (2) in the prayer for punitive damages.

[1] The court notes that this cause of action is not based on the theory that Defendant retaliated against Plaintiff because of his conduct in making complaints of discrimination and harassment, and is instead based solely on the theory that Defendant retaliated against Plaintiff for requesting accommodations and taking medical leave for his disability. (FAC ¶¶ 72-74.)

francisco lopez ; Plaintiff, vs. daiohs u.s.a., inc. , et al.; Defendants.	Case No.:	24STCV21813

	Hearing Date:	June 13, 2025

	Time:	10:00 a.m.

	[tentative] Order RE: (1) defendant’s demurrer to first amended complaint (2) defendant’s motion TO STRIKE FIRST AMENDED COMPLAINT