Judge: Robert S. Draper, Case: 22STCV17773, Date: 2022-08-29 Tentative Ruling

Case Number: 22STCV17773    Hearing Date: August 29, 2022    Dept: 78

Superior Court of California 

County of Los Angeles 

Department 78 

Defendants’ Demurrer to the First through Sixth Causes of Action is SUSTAINED without leave to amend as to Defendants Amorelli, Rosemann & Associates Insurances Services, Inc. and Acrisure of California, LLC.

Defendants’ Demurrer is OVERRULED as to Acrisure LLC. However, the Court will discuss with Plaintiff’s Counsel at hearing whether Plaintiff did exhaust her administrative remedies as to Acrisure LLC.

FACTUAL BACKGROUND 

This is an action for workplace violations brought under the Fair Employment and Housing Act (“FEHA”) and wrongful termination. The Complaint alleges as follows.

Plaintiff Beatriz Yalitza Udave (“Udave”) began working for Defendants Amorelli, Rosemann & Associates Insurance Services, Inc. (“Amorelli”), Acrisure of California, LLC (“Acrisure of California”) and Acrisure LLC (“Acrisure”) (collectively, “Defendants”) in August 2017. (Compl. ¶ 15.) Udave is a Hispanic female. (Ibid.)

While employed by Defendants, Udave was asked to use other employees’ emails to commit illegal acts. (Compl. ¶ 16.) When she refused, Defendants retaliated against her. (Ibid.) Additionally, Uvalde was harassed based on her race, sex, national origin, disability, and medical condition. (Compl. ¶ 17.)

Udave fell ill in June of 2020. (Compl. ¶ 19.) Shortly thereafter, she was unlawfully terminated. (Ibid.)

PROCEDURAL HISTORY

On May 31, 2022, Udave filed the Complaint asserting seven causes of action:

1.    Discrimination in Violation of FEHA;

2.    Retaliation in Violation of FEHA;

3.    Failure to Engage in the Interactive Process in Violation of FEHA;

4.    Failure to Accommodate in Violation of FEHA;

5.    Interference With and Failure to Provide Leave in Violation of FEHA;

6.    Failure to Accommodate and Provide Leave in Violation of FEHA; and

7.    Wrongful Termination in Violation of Public Policy. 

On July 6, 2022, Defendants filed the instant Demurrer to the Complaint.

On August 17, 2022, Udave filed an Opposition.

On August 23, 2022, Defendants filed a Reply.

DISCUSSION

I.               REQUEST FOR JUDICIAL NOTICE

In ruling upon demurrers, courts may consider matters that are proper for judicial notice. (ABF Capital Corp. v. Berglass (2005) 130 Cal.App.4th 825, 834.)  

The court may take judicial notice of “official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States,” “[r]ecords of (1) any court of this state or (2) any court of record of the United States or of any state of the United States,” and “[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (Evid. Code § 452, subds. (c), (d), and (h).)  

Evidence Code Section 452 provides that judicial notice may be taken for facts and propositions that are “not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (Cal. Evid. Code § 452(h).) Further, “a court may take judicial notice of [recorded documents and] the fact of a document's recordation, the date the document was recorded and executed, the parties to the transaction reflected in a recorded document, and the document's legally operative language, assuming there is no genuine dispute regarding the document's authenticity. From this, the court may deduce and rely upon the legal effect of the recorded document, when that effect is clear from its face.” (Scott v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 743, 745-755.)  

Taking judicial notice of a document is not the same as accepting the truth of its contents or accepting a particular interpretation of its meaning. (Fremont Indem. Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 113-14 (citations and internal quotations omitted).) In addition, judges “consider matters shown in exhibits attached to the complaint and incorporated by reference.”  (Performance Plastering v. Richmond American Homes of California, Inc. (2007) 153 Cal.App.4th 659, 665.) However, “[w]hen judicial notice is taken of a document . . . the truthfulness and proper interpretation of the document are disputable.” (Aquila, Inc. v. Sup. Ct. (2007) 148 Cal.App.4th 556, 569 (quoting StorMedia Inc. v. Sup. Ct. (1999) 20 Cal.4th 449, 457 n. 9).) 

The party requesting judicial notice must (a) give each adverse party sufficient notice of the request to enable the adverse party to prepare to meet the request and (b) provide the court with sufficient information to enable it to take judicial notice of the matter. (Cal. Evid. Code § 453.)

Defendants Request Judicial Notice of:

1.    Notice of Case Closure and Right to Sue from the Department of Fair Employment and Housing to Plaintiff Beatriz Yalitza Udave, dated May 28, 2021. (RFJN Ex. A.)

Defendants’ Request for Judicial Notice is GRANTED.

II.             DEMURRER

Defendants Demur to all claims brought under FEHA; the First through Sixth causes of action in the Complaint.

A demurrer should be sustained only where the defects appear on the face of the pleading or are judicially noticed. (Code Civ. Pro., §§ 430.30, et seq.) As is relevant here, a court should sustain a demurrer if a complaint does not allege facts that are legally sufficient to constitute a cause of action. (See id. § 430.10, subd. (e).) As the Supreme Court held in Blank v. Kirwan (1985) Cal.3d 311: “We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. . . . Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.” (Id. at p. 318; see also Hahn. v. Mirda (2007) 147 Cal.App.4th 740, 747 [“A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. [Citation.]”)

“In determining whether the complaint is sufficient as against the demurrer … if on consideration of all the facts stated it appears the plaintiff is entitled to any relief at the hands of the court against the defendants the complaint will be held good although the facts may not be clearly stated.” (Gressley v. Williams (1961) 193 Cal.App.2d 636, 639.)

A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment. (Schifando v. City of Los Angeles, supra, 31 Cal.4th at p. 1081.) The demurrer also may be sustained without leave to amend where the nature of the defects and previous unsuccessful attempts to plead render it probable plaintiff cannot state a cause of action. (Krawitz v. Rusch (1989) 209 Cal.App.3d 957, 967.

Here, Defendants argue that Udave’s FEHA claims are time-barred as to Amorelli and Acrisure of California, and that Udave failed to exhaust her administrative remedies as to Acrisure.

A.  Amorelli and Acrisure of California

First, Defendants argue that Udave’s FEHA claims are time-barred as to Amorelli and Acrisure of California as Udave failed to timely file the instant Complaint contrary to California Government Code section 12965 subd. b.

Section 12965 states, in relevant part, that a plaintiff may bring a “civil action under this part against the person, employer, labor organization, or employment agency named in the verified complaint within one year from the date of [the right to sue] notice.” (Cal. Gov. Code § 12965(b); see also RFJN Ex. A at p. 1.)

Defendants note that Udave’s notice of right to sue from the Department of Fair Employment & Housing is dated May 28, 2021. (RFJN Ex. A at p. 1.) Nonetheless, Udave did not file the instant claim until May 31, 2022; over a year after the date of the right to sue letter.

In Opposition, Udave argues that it is improper for this Court to consider the right to sue letter as it is not contained on the face of the Complaint. Additionally, Udave notes that the Complaint alleges Udave “properly exhausted her administrative remedies as required by law by filing a complaint against Defendants with the Department of Fair Employment and Housing (“DFEH”) and receiving an immediate “Right-to-Sue” Notice from said department on the same day and serving the same on Defendants by certified US mail.” (Compl. ¶ 20.)

As the Court is required to take all allegations as fact at the pleading stage, Udave argues, the Court must accept that Udave properly exhausted her administrative remedies before filing the instant claim.

Not so. In ruling upon demurrers, courts may consider matters that are proper for judicial notice. (ABF Capital Corp., supra, at 834.)  Additionally, “allegations in the pleading may be disregarded if they are contrary to facts judicially noticed.” (Hoffman v. Smithwoods RV Park, LLC (2009) 179 Cal.App.4^th 390, 400.)

Udave neither opposes judicial notice of the right to sue letter, nor questions its authenticity. Accordingly, the Court may properly consider the letter, and the date on which it was sent to Udave, on Demurrer.

Accordingly, as Udave failed to timely file the instant Complaint in accordance with section 12965, Defendants’ Demurrer to the FEHA causes of action as to Amorelli and Acrisure of California is SUSTAINED. And, as Udave does not suggest anyway the defect can be remedied, and the Court cannot reasonably think of one, Udave is not granted leave to amend.

B.  Acrisure

Next, Defendants argue that the Demurrer to the FEHA causes of action as to Acrisure must be sustained, as Udave failed to file a Complaint with the Department of Fair Employment and Housing as to Acrisure. Defendants note that the Right to Sue Letter was issued as Amorelli and Acrisure of California, but not as to Acrisure. (RFJN Ex. A.) Accordingly, Defendants contend, Udave failed to exhaust her administrative remedies before bringing the instant Complaint.

While the Court notes that Acrisure is absent from the Right to Sue letter, there are no judicially noticeable facts explicitly demonstrating that Udave failed to file a Complaint with DFEH prior to initiating the instant action. Udave could have, for example, filed a separate Complaint with DFEH as to Acrisure which is neither attached to the Complaint nor the subject of judicial notice. Absent such explicit evidence, the Court cannot disregard the factual allegations contained on the face of the Complaint. With that said, at hearing the Court plans to inquire as to whether a Right to Sue letter was obtained as to Acrisure.

However, as no judicially noticeable material demonstrates that Udave failed to obtain a right to sue notice as to Acrisure, Defendants’ Demurrer to the FEHA causes of action as to Acrisure is OVERRULED.

DATED: August 30, 2022                     _____________________

Hon. Robert S. Draper 

Judge of the Superior Court