Judge: Stephen P. Pfahler, Case: 24STCV06599, Date: 2024-12-03 Tentative Ruling

Case Number: 24STCV06599    Hearing Date: December 3, 2024    Dept: 68

Dept. 68

Date: 12-3-24 c/f 11-26-24

Case: 24STCV06599

Trial Date: Not Set

 

JUDGMENT ON THE PLEADINGS

 

MOVING PARTY: Defendants, Serv-Rite Meat Company, et al.

RESPONDING PARTY: Plaintiff, Maria Moralez

 

RELIEF REQUESTED

Motion for Judgment on the Pleadings

·         5th Cause of Action: Age Discrimination

·         10th Cause of Action: Violation of Labor Code § 1102.5

·         12th Cause of Action: Violation of Labor Code § 6311

 

SUMMARY OF ACTION

Plaintiff Maria Moralez was employed by Defendants Serv-Rite Meat Company and HR Staffing Solutions, Inc. from March 2021 to November 2023. Plaintiff was regularly assigned to the refrigerated section of the facility, identified as the “freezer,” which led to an exasperation of symptoms related to “her disability” and “health problems.” Plaintiff took a week off work for medical leave, which led to further time off by doctor prescription. Plaintiff was terminated while on medical leave.

 

On March 18, 2024, plaintiff filed a complaint for 1. Disability Discrimination 2. Failure o Accommodate Disability 3. Failure To Engage in the Interactive Process 4. Violation of California Family Rights Act 5. Age Discrimination 6. Retaliation (Requesting Accommodation) 7. Retaliation 8. Failure to Prevent Discrimination, Harassment and Retaliation 9. Wrongful Termination in Violation of Public Policy 10. Violation Of Labor Code § 1102.5 11. Violation of Labor Code § 6310 12. Violation of Labor Code § 6311 13. Failure to Provide Personnel File. Defendants answered the complaint on May 16, 2024.

 

RULING: Granted in Part/Denied in Part.

Defendants Serv-Rite Meat Company and HR Staffing Solutions, Inc. move move for judgment on the pleadings on the fifth, tenth and twelfth causes of action for Age Discrimination, Violation of Labor Code § 1102.5, and Violation of Labor Code § 6311. Defendants contend the operative complaint lacks any facts supporting the three causes of action. Plaintiff challenges the motion on grounds of improper notice, and maintains the complaint sufficiently articulates facts. Defendants in reply maintains the notice was sufficient, challenges the lack of any specific age based discrimination except through reference to an incorporated document, complete lack of facts in support of the Labor Code § 6311 claim, and reliance on extrinsic inference regarding the ability to return to work.

 

“A motion for judgment on the pleadings serves the function of a demurrer, challenging only defects on the face of the complaint… [¶] The grounds for a motion for judgment on the pleadings must appear on the face of the complaint or from a matter of which the court may take judicial notice.” (Richardson-Tunnell v. School Ins. Program for Employees (2007) 157 Cal.App.4th 1056, 1061.) In considering a motion for judgment on the pleadings, courts consider whether the factual allegations, assumed true, are sufficient to constitute a cause of action. (Fire Insurance Exchange v. Superior Court (2004) 116 Cal.App.4th 446, 452-453.)

 

The court finds while the notice of motion lacks precise citation to all statutorily operative provisions, Plaintiff understands the factual basis of the challenge. The court therefore finds no prejudice or due process issues disallowing consideration of the motion.

 

5th Cause of Action: Age Discrimination

Defendants contend the subject cause of action relies on a single conclusive allegation of discrimination based on age. [Comp., ¶ 61.] Plaintiff references the “administrative complaint” filed with the “California Civil Rights Department,” whereby Plaintiff alleges age discrimination on the basis of being over 40 years of age. [Comp., ¶ 23, Ex. B.]

 

“A prima facie case of age discrimination requires evidence the plaintiff is over the age of 40, was performing satisfactorily and was discharged under circumstances giving rise to an inference of unlawful discrimination, i.e., others not over the age of 40 were retained or his job was filled by someone of comparable skill who was not over the age of 40.” (Gibbs v. Consolidated Services (2003) 111 Cal.App.4th 794, 799.) Plaintiff essentially alleges boilerplate allegations of age discrimination, with incorporated reference of the Civil Rights Department right to sue letter and section 4 of the submitted complaint [Comp., ¶¶ 59-66.]

 

While the allegations are minimal and conclusive, the incorporated exhibit and introductory facts sufficiently articulates the claim. “A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616; Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139.) Challenge ultimately relying on evidence regarding age and replacement personnel indicates the necessity of further discovery in the subject action rather than further amendment without significant material change other than further pro forma elements more specifically stated. The motion is DENIED.

 

10th Cause of Action: Violation of Labor Code § 1102.5

Defendants challenge the lack of facts meeting the Labor Code section 1102.5, Whistleblower Protection, elements regarding the link between an adverse employment action and the purportedly unlawful conduct. Plaintiff cites to Labor Code section 1102.5 regarding retaliatory conduct for Plaintiffs’ refusal to engage in conduct violating state and federal statutes. Plaintiff denies any requirement to specifically articulate any actual sections in support for purposes of pleading the subject claim. Defendants in reply maintain a lack of any retaliatory conduct allegations.

 

The subject cause of action again relies on conclusive allegations without any specific identification of the “tethered” statutes purportedly violated. Plaintiff in extensive opposition references excessively “cold” temperatures as the basis of the unspecified violation(s). The argument depends on a absences of support requiring explicit authority associated with any particular statute, but Defendants raise a valid point that even foregoing this specificity requirement, the complaint still ultimately pleads any facts in any way even suggesting retaliatory conduct. Further, when considering cold temperatures placed in context of the food storage based employment duties articulated in the complaint, the court finds the vagueness renders the operative sections impermissibly ambiguous. While the court at least found a scant basis for the fifth cause of action, even considering the first paragraph of page two (2) of the “administrative complaint,” with the “Complainant experienced retaliation” introduction, the subject omission(s) in the instant cause of action will not withstand judicial scrutiny. The motion is GRANTED.

 

12th Cause of Action: Violation of Labor Code § 6311

Defendants contend the complaint lacks facts, while Plaintiff counters the argument relies on “defunct” legal standards.

 

“No employee shall be laid off or discharged for refusing to perform work in the performance of which this code, including Section 6400, any occupational safety or health standard, or any safety order of the division or standards board will be violated, where the violation would create a real and apparent hazard to the employee or their fellow employees. Any employee who is laid off or discharged in violation of this section or is otherwise not paid because the employee refused to perform work in the performance of which this code, any occupational safety or health standard, or any safety order of the division or standards board will be violated and where the violation would create a real and apparent hazard to the employee or their fellow employees shall have a right of action for wages for the time the employee is without work as a result of the layoff or discharge. ...”

 

The court declines to consider unpublished authority. (Cal. Rules of Court, rule 8.1115(a); Rittiman v. Public Utilities Com. (2022) 80 Cal.App.5th 1018, 1043 (footnote 18).)

 

Even assuming a valid OSHA hazard exists (again, allowing for a meager pleading standard), the complaint in fact alleges Plaintiff took sick leave and demanded an accommodation rather than somehow refusing to work. The court also finds a valid introduction to a position regarding the lack of any specific facts as to Defendant HR Staffing Solutions, Inc. regarding its role in any liability. Again, the flaws cannot be overcome via extensive challenge in opposition and extrinsic inference. The motion is GRANTED. 

 

The court therefore denies the motion on the fifth cause of action, and grants the motion without prejudice/with leave to amend as to the tenth and twelfth causes of action. Plaintiff has 30 days leave to amend. Plaintiff may NOT add any new causes of action. (Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1023.) Any such actions will be subject to a motion to strike. If Plaintiff elects to forego filing an amended complaint within the allotted time, the motion for judgment on the pleadings will become one with prejudice, and the remaining causes of action will proceed.


The court will concurrently conduct the case management conference and OSC re: Failure to File Proof of Service.

 

Defendants to give notice.