Judge: Ronald F. Frank, Case: 23TRCV04242, Date: 2024-05-03 Tentative Ruling
Case Number: 23TRCV04242 Hearing Date: May 3, 2024 Dept: 8
¿¿
HEARING DATE: May 3, 2024¿¿
¿¿
CASE NUMBER: 23TRCV04242
¿¿
CASE NAME: Gina M. Salas v.
Michael Frank Mellman, MD, et al.
¿¿
MOVING PARTY: Defendant, Michael F. Mellman
RESPONDING PARTY: Plaintiff, Gina Salas
¿¿
TRIAL DATE: Not
Set.
MOTION:¿ (1) Motion for Judgment on the Pleadings
Tentative Rulings: (1) DENIED, without prejudice to a properly
noticed motion where the Court can consider whether the evidence provided in
discovery raises a triable issue of fact bearing on the Plaintiff’s burden under
the first and third prongs of the McDonnell
Douglas test for discrimination cases.
Plaintiff sufficiently alleges facts and reasonable inferences which, if
believed by the trier of fact, would carry the Plaintiff’s initial burden of
proof of a prima facie case of FEHA discrimination. Assuming without deciding that Exhibit 2 to the
Complaint could be considered as meeting a defendant’s shifted burden on the second
prong of the burden-shifting analysis (employer rebuttal evidence), the Complaint
alleges facts which if believed could carry plaintiff’s burden as to the third prong
(pretext).
I. BACKGROUND¿¿
¿¿
A. Factual¿¿
¿¿
On December 20, 2023, Plaintiff, Gina Salas
filed a Complaint against Defendant, Michael Frank Mellman, MD, and DOES 1
through 100. The Complaint alleges causes of action for: (1) Violation of
California Government Code section 12940(a)- Pregnancy Discrimination; (2)
Violation of California Government Code sections 12940(m) and (n) -Failure to
Provide Reasonable Accommodation and Failure to Engage in Interactive Process;
(3) Violation of California Government Code section 12945 – California
Pregnancy Leave Act; (4) Wrongful Termination - Failure to Provide Reasonable
Accommodation; and (5) Wrongful Termination -Failure to Engage in Interactive
Process.
The Complaint is based on allegations that
around June 2022, Plaintiff became pregnant with her first child and notified
Defendants shortly thereafter. Plaintiff asserts that her due date was March 1,
2023. Plaintiff notes that on January 19, 2023, she worked her last day before
starting job protected disability pregnancy leave. Plaintiff alleges that at no
time did the Defendants offer Plaintiff the California family and Pregnancy Leave
Act paperwork as required by California Family Rights Act, nor did Defendants
apprise Plaintiff of her rights under California law. (Complaint, ¶ 9.)
Plaintiff notes that on February 24, 2023,
she gave birth to her child, but Defendants never contacted her after she left
the workplace for pregnancy leave. Plaintiff contends that after giving birth,
she suffered from post-partum anxiety and followed up with her psychiatrist.
(Complaint, ¶ 10.) On July 20, 2023, Plaintiff alleges that she emailed
Defendants writing: “I’m anticipating to be back at work on 09/18/2023.”
(Complaint, ¶ 11, Exhibit 1.) On July 26, 2024, Plaintiff alleges that
Defendants replied by email to Plaintiff as follows: “My medical practice has
changed over the past nine months….I had to evaluate who, among the five
medical assistants, was least suited for cohesive staff and patient
interactions of the changed practice. My clear answer was you, Gina….This is
your notice of discharge…” (Complaint, ¶ 12, Exhibit 2.)
Now,
Defendant, Michael Frank Mellman, M.D., files a Motion for Judgment on the
Pleadings.
B. Procedural¿¿
¿
On April 10, 2024, Defendant filed a Motion for
Judgment on the Pleadings. On April 22, 2024, Plaintiffs filed an opposition
brief. On April 26, 2024, Defendant filed a reply brief.
II. REQUEST FOR JUDICIAL NOTICE
With Plaintiff’s
opposition brief, she has also filed a Request for Judicial Notice of the
following document:
1.
EXHIBIT 1: Plaintiff’s Complaint, filed December
20, 2023.
This Court GRANTS Plaintiff’s request and
takes judicial notice of the above.
III. ANALYSIS
A.
Legal Standard
The standard for ruling on a
motion for judgment on the pleadings is essentially the same as that applicable
to a general demurrer, that is, under the state of the pleadings, together with
matters that may be judicially noticed, it appears that a party is entitled to
judgment as a matter of law. (Bezirdjian v. O'Reilly (2010) 183 Cal.App.4th 316, 321-322, citing Schabarum v. California Legislature (1998) 60 Cal.App.4th 1205, 1216.) Matters which are subject
to mandatory judicial notice may be treated as part of the complaint and may be
considered without notice to the parties. Matters which are subject to
permissive judicial notice must be specified in the notice of motion, the
supporting points and authorities, or as the court otherwise permits. (Id.)
The motion may not be supported by extrinsic evidence. (Barker v. Hull
(1987) 191 Cal.App.3d 221, 236.)
When the moving party is a defendant, he must demonstrate either
of the following exist:
(i)
The court has no jurisdiction of the subject of the cause of
action alleged in the complaint.
(ii)
The complaint does not state facts sufficient to constitute a
cause of action against that defendant. (Code Civ. Proc., § 438, subd.
(c)(a)(B)(i)-(ii).)
Additionally, a motion for judgment on the pleadings must be
accompanied by a meet and confer declaration demonstrating an attempt to meet
and confer in person or by telephone, at least five days before the date a
motion for judgment on the pleadings is filed. (Code Civ. Proc., § 439.)
B.
Discussion
Defendant’s Motion for Judgment on the Pleadings is
DENIED. In violation of the standards
for a Court to consider in hearing a MJOP, the instant motion relies on
extrinsic evidence, does not reference any judicially noticed facts, and argues
facts developed in discovery rather than in the “pleadings” as the name of the motion
requires. The Court does, however, consider the exhibits
attached to the Complaint as part of the pleadings, and is required to consider
those allegations as true.
The Opposition argues that Defendant appears to have
confused the MSJ standard with the standard applicable for a Motion for
Judgment on the Pleadings. A reading of the moving papers demonstrates there is
some truth to that argument. As noted
above, a Motion for Judgment on the Pleadings, like a demurrer, tests the
sufficiency of the allegations in a cause of action, on the face of that
pleading including its attached exhibits. (See Frantz v. Blackwell
(1987) 189 Cal.App.3d 91, 94 (evidentiary facts found in recitals of exhibits
attached to the complaint can be considered on demurrer).) Although the Court may also take into
consideration judicially noticed documents, the standard at this stage does not
permit this Court to weigh the evidence and make its decision as to which party
has more persuasive facts or whether a material fact has been proven. (Klein
v. Chevron U.S.A., Inc. (2013) 202 Cal.App.4th 1342.) Such a standard is
reserved for Motions for Summary Judgment and/or Adjudication, where Section
437(c) “requires the trial judge to grant summary judgment if all the evidence
submitted, and ‘all inferences reasonably deducible from the evidence’ and
uncontradicted by other inferences or evidence, show that there is no triable
issue as to any material fact and that the moving party is entitled to judgment
as a matter of law.”¿ (Adler v. Manor Healthcare Corp. (1992) 7
Cal.App.4th 1110, 1119.)¿The motion filed by Defendant set for hearing on May
3, 2024, is not an MSJ, rather it is an MJOP.
For example, the Motion at 3:13-24 admits
that plaintiff alleges in Complaint ¶9 that she was not provided with pregnancy
leave paperwork, a material allegation of one of her causes of action. But the moving papers assert that this allegation
is “provably false” based on Plaintiff’s deposition testimony attached as Exhibit
G to the moving papers. The Court cannot
consider the deposition testimony in ruling on an MJOP. Similarly, the moving papers assert that the reasonable
accommodation allegations in Complaint ¶24, 36, 37, and 43-45 are all “provably
false” (MJOP at 4:18), as shown by admissions in Plaintiff’s deposition. Against, the Court cannot consider the moving
party’s extrinsic evidence to see whether the allegation is or is not proven by
subsequently developed evidence like deposition testimony. With respect to the Complaint’s pretext
allegations, the moving papers again reference Plaintiff’s deposition testimony
and imply that the Complaint’s allegations of pretext are not sufficiently detailed
or are conclusionary. The Court concurs that
the allegations of pretext (Complaint ¶¶ 8-11, 13, Exh. 1 and Exh. 3’s CRD
Complaint ¶3) are not very detailed. Although
Plaintiff argues in the Opposition that she was the only pregnant worker at the
time of her leave of absence and when she sought to be taken back to work,
nowhere in the Complaint nor in its attachments does Plaintiff make such an allegation. The allegation in ¶13 that Plaintiff had no personnel
issues, no writeups or discipline issues (which may be evidence of pretext), stands
in contrast to Dr. Mellman’s letter attached as Exhibit 2 to the Complaint which
indicates there were some personnel problems.
But the Court is not at liberty on an MJOP to resolve factual disputes
raised by inconsistencies in the pleadings versus its attachments.
Next, the MJOP relies on “disproving” Plaintiff’s
allegations. The Court cannot overlook the rather strident rhetoric contained
in the moving papers, but a contention that Plaintiff’s evidence consists of “false
facts” and “ugly lies” implies that the Court is being asked to weigh
credibility or consider facts outside the Complaint’s exhibits and the factual allegations
in the pleading itself, which is not the standard for a MJOP. Whether
the Plaintiff is unable to prove certain allegations is a question meant for a later
motion or trial. An example of this would
be the motion’s attack at page 7 on Plaintiff’s damages allegations versus the extrinsic
evidence presented from deposition testimony that Plaintiff may have more than
mitigated her damages after being denied reinstatement to her former $800 a
week job. These are additional purported
facts that are not alleged in the Complaint and that the Court cannot consider
on an MJOP.
Arguments typically made in a Motion for Judgment on
the Pleadings or a Demurrer include those that the Plaintiff has failed to
allege sufficient facts to maintain a cause of action against Defendant; that
the allegations fail to plead certain elements of a cause of action; that the face
of the Complaint demonstrates the bar of the statute of limitations or the failure
to exhaust administrative remedies, etc.
This Motion makes no such argument but rather relies on evidence outside
the four corners of the Complaint. Accordingly,
this Court DENIES Defendant’s Motion without prejudice to a later evidentiary
motion.
Unless waived, Plaintiff is ordered to give notice.¿¿¿¿
¿¿¿