Judge Stephen I. Goorvitch, Case Number: 22STCV13903, Date: 2023-10-13 Tentative Ruling

Judge: Stephen I. Goorvitch, Case: 22STCV13903, Date: 2023-10-13 Tentative Ruling

Case Number: 22STCV13903 Hearing Date: October 13, 2023 Dept: 39

Kenneth Oleesky v. Lithia Motors, Inc.

Case No. 22STCV13023

Demurrer to Answer

Plaintiff Kenneth Oleesky (“Plaintiff”) filed this case against Lithia Motors, Inc. (“Lithia”) and Van Nuys-L, Inc. (“Van Nuys-L”) (collectively, “Defendants”) asserting seven causes of action under the Fair Employment and Housing Act (“FEHA”) and one cause of action for failure to pay timely wages upon discharge, per Labor Code section 201(a). Defendants filed an answer raising 39 affirmative defenses to the second amended complaint, to which Plaintiff demurs.

A plaintiff may demur to an answer if: “(a) The answer does not state facts sufficient to constitute a defense. [¶] (b) The answer is uncertain. As used in this subdivision, ‘uncertain’ includes ambiguous and unintelligible. [¶] (c) Where the answer pleads a contract, it cannot be ascertained from the answer whether the contract is written or oral.” (Code Civ. Proc., § 430.20.) In the answer to the complaint, a defendant must allege facts to support any matter the defendant will bear the burden to prove at trial. (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 240.) A defendant need not allege facts to support any matter the plaintiff will bear the burden of proof at trial. (Ibid.)

The Court rules as follows with respect to each affirmative defense in the first amended answer, filed on September 28, 2023:

1. Overruled. It is Plaintiff’s burden to state a cause of action.

2. Overruled. It is Plaintiff’s burden to prove that the action is timely.

3. Overruled. Defendants’ pleading is sufficient, as this is a legal issue for the Court, not the jury.

4. Overruled. Defendants’ pleading is sufficient to provide notice.

5. Overruled. It is Plaintiff’s burden to establish that his damages are attributable to action or inaction by Defendants.

6. Overruled. Defendants plead sufficient facts that Plaintiff (based upon his conduct) and Plaintiff’s medical service providers (based upon having misdiagnosed, mistreated or negligently treated Plaintiff’s injuries) bear responsibility.

7. Overruled. Defendants plead sufficient facts to provid enotice, given the facts plead in connection with the sixth affirmative defense.

8. Overruled. Defendants’ pleading is sufficient, as this is a legal issue for the Court, not the jury.

9. Overruled. It is Plaintiff’s burden to establish that there were non-retaliatory reasons for his termination, and Defendants plead sufficient facts to explain the basis for their position that the termination was non-retaliatory.

10. Overruled. Defendants’ pleading is sufficient to provide notice, given the facts plead in connection with the ninth affirmative defense.

11. Overruled. It is Plaintiff’s burden to demonstrate that his injuries were caused, or aggravated, by Defendants’ conduct.

12. Overruled. It is Plaintiff’s burden to demonstrate that he did not fail to mitigate his damages.

13. Overruled. Defendants’ pleading is sufficient to provide notice, as this is a legal issue for the Court, not the jury.

14. Overruled. Defendants’ pleading is sufficient to provide notice. Plaintiff can develop the evidence during discovery.

15. Overruled. It is Plaintiff’s burden to demonstrate that Defendants’ conduct was unlawful.

16. Overruled. Defendants’ pleading is sufficient to provide notice. Plaintiff may develop evidence on the contention that Defendant “would have terminated Plaintiff based on facts obtained following his termination.”

17. Overruled. Defendants’ pleading is sufficient, as this is a legal issue for the Court, not the jury. Defendants will develop their legal arguments in any related motion filed with the Court.

18. Overruled. It is Plaintiff’s burden to demonstrate that Defendants acted with fraud, oppression, or malice.

19. Overruled. Defendants’ pleading is sufficient, as these are legal issues for the Court.

20. Overruled. Defendants’ pleading is sufficient to provide notice. Plaintiff can develop the evidence during discovery.

21. Overruled. Defendants’ pleading is sufficient to provide notice. Plaintiff can develop the evidence during discovery.

22. Overruled. Defendants’ pleading is sufficient to provide notice. Plaintiff can develop the evidence during discovery.

23. Overruled. It is Plaintiff’s burden to establish that he was qualified for the position. Regardless, Defendants’ pleading is sufficient to provide notice. Plaintiff can develop the evidence during discovery.

24. The Court interprets this defense—“Same Actors/Positive and Adverse Action”—as meaning that there was no discriminatory or retaliatory animus because “the same actors carried out both positive and adverse action affecting Plaintiff’s employment . . . .” Because it is Plaintiff’s burden to establish that Defendants acted with discriminatory and/or retaliatory animus, the demurrer is overruled.

25. Overruled. It is Plaintiff’s burden to establish that Defendants took action against Plaintiff and ratified any conduct (for purposes of punitive damages).

26. Overruled. Defendants’ pleading is sufficient because this is a legal issue for the Court, not the jury. Defendants will develop their arguments during any motion on this issue.

27. Overruled. Defendants’ pleading is sufficient because this is a legal issue for the Court, not the jury. Defendants will develop their arguments during any motion on this issue.

28. Overruled. It is Plaintiff’s burden to establish that Defendants acted willfully.

29. Overruled. It is Plaintiff’s burden to establish that all wages were not paid.

30. Overruled. It is Plaintiff’s burden to establish that the failure to pay wages was willful.

31. Sustained. The fact that Plaintiff was an at-will employee is not a defense in this case. An employer is not permitted to terminate an at-will employee for the alleged reasons in the complaint. The Court sustains the demurrer without leave to amend.

32. Overruled. Defendants’ pleading is sufficient to provide notice, and Plaintiff can develop this evidence in discovery. However, the Court may exclude evidence that is inadmissible under the collateral source rule. Therefore, the Court’s ruling is without prejudice to a motion in limine.

33. Overruled. It is Plaintiff’s burden to establish that he was disabled.

34. Overruled. It is Plaintiff’s burden to establish that he was willing to participate in the interactive process.

35. Overruled. It is Plaintiff’s burden to establish that Defendants ratified the conduct at issue for purposes of punitive damages.

36. Overruled. It is Plaintiff’s burden to establish that each defendant is an employer for purposes of the causes of action.

37. Overruled. Defendants’ pleading is sufficient to provide notice, and Plaintiff can develop the evidence during discovery.

38. Overruled. It is Plaintiff’s burden to establish that he was able to perform the essential functions of the position.

39. Sustained. This is not an affirmative defense. If Defendants wish to raise additional affirmative defenses, they must seek leave to amend. The Court sustains the demurrer without leave to amend unless the Court later grants a stipulation or motion.

CONCLUSION AND ORDER

Based upon the foregoing, the Court orders as follows:

1. Plaintiff’s demurrer to the amended answer is sustained in part and overruled in part.

2. The Court sustains the demurrer to the 31st and 39th affirmative defenses without leave to amend.

3. The Court overrules the demurrer in all other respects. This order is without prejudice to Plaintiff seeking to exclude inadmissible evidence by way of a motion in limine (e.g., evidence that is inadmissible under the collateral source rule, etc.)

4. Plaintiff’s counsel shall provide notice and file proof of such with the Court.