Judge Teresa A. Beaudet, Case Number: 23STCV29498, Date: 2024-11-13 Tentative Ruling

Plaintiff Cristina Arsene (“Plaintiff”) filed this action on December 1, 2023 against Defendant Santa Monica Community College.

On January 10, 2024, Plaintiff filed the operative First Amended Complaint (“FAC”), alleging causes of action for (1) failure to provide compliant meal periods, (2) failure to provide compliant rest periods, (3) wage statement penalties, (4) violation of Unfair Competition Law, (5) Private Attorneys General Act, (6) disability discrimination, (7) failure to engage in the in the interactive process, and (8) failure to accommodate.

Defendant Santa Monica Community College District, erroneously sued as Santa Monica Community College (“Defendant”) now demurs to each of the causes of action of the FAC. Defendant also moves to strike portions of the FAC. Plaintiff filed a “response” to the demurrer and motion to strike.

As an initial matter, in its reply, Defendant states that it “asks the Court to disregard [Plaintiff’s] one-page response as Plaintiff failed to serve the document and file a proof of service on counsel. Defendant SMCCD only learned a document was filed when it checked the LASC website and case docket…” (Reply at p. 1:27-2:1.) Indeed, Plaintiff’s “Response to Demurrer Hearing and Motion to Strike” filed on October 21, 2024 does not attach any proof of service. It does not appear that Plaintiff filed any proof of service showing that the response was filed. Pursuant to Code of Civil Procedure section 1005, subdivision (b), “[a]ll papers opposing a motion so noticed shall be filed with the court and a copy served on each party at least nine court days, and all reply papers at least five court days before the hearing.” Because Defendant filed a reply addressing Plaintiff’s response, the Court exercises its discretion to consider the response. But in any event, Plaintiff’s response does not address any of the arguments raised in Defendant’s demurrer or motion to strike. The response does not cite any legal authority or appear to make any coherent argument.

In addition, the Court notes that on November 4, 2024, Plaintiff filed a “Response to Defendant’s Reply to Plaintiff’s Response to Defendant’s Demurrer and Motion to Strike First Amended Complaint for Damages.” Plaintiff does not demonstrate that she was authorized to file such a document. In addition, it does not appear that any proof of service was filed with this response. Accordingly, the Court declines to consider Plaintiff’s November 4, 2024 response.

The Court also notes that on May 21, 2024, the Court “electronically received” a request for dismissal in this action. The request for dismissal indicates that Plaintiff dismisses without prejudice “ONLY Causes of Action 1 through 5 (COA 1, 2, 3, 4, and, 5).” The request for dismissal further indicates that dismissal was entered on May 21, 2024. However, it does not appear that the request for dismissal was ever filed. Defendant does not appear to address the request for dismissal in the demurrer or motion to strike.

In the FAC, Plaintiff alleges that she “was employed by Defendants from June 6, 2016 to the present.” (FAC, ¶ 7.) Plaintiff alleges that “Defendants failed to provide Plaintiff with compliant meal breaks because meal breaks were regularly missed since Plaintiff was only allowed to take a 15 min break instead of 30 minutes lunch period.” (FAC, ¶ 8.) “Despite not being provided with compliant meal breaks, Defendants did not pay premium pay for these missed breaks at Plaintiff’s regular rate of pay.” (FAC, ¶ 9.)

Plaintiff further alleges that “Defendants failed to provide Plaintiff with compliant rest breaks because were [sic] regularly missed because students would book appointments during break times. On other occasions rest breaks were interrupted by the supervisor asking for help or demanding to attend to outstanding tasks. On some occasions the supervisor would follow Plaintiff to the rest room and knock on the restroom door until she came out, interrupting her rest break.” (FAC, ¶ 10.) “Despite not being provided with compliant rest breaks, Defendants did not pay premium pay for these missed breaks at Plaintiff’s regular rate of pay.” (FAC, ¶ 12.) Plaintiff alleges that “Defendants failed to provide Plaintiff with accurate wage statements because the wage statements issued to Plaintiff did not accurately list total wages owed and hours worked, among other things.” (FAC, ¶ 13.)

Plaintiff further alleges that “Plaintiff has brain tumor which makes her extremely sensitive to noise making it virtually impossible to concentrate which then increases her cortisol levels. She is also very sensitive to air conditioning.” (FAC, ¶ 14.) Plaintiff “went to the neurologist in May and provided a Dr. Note to the HR Regina Rogers [sic] and her supervisor Wendy DeMorst requesting reasonable accommodations.” (FAC, ¶ 15.) “Reasonable accommodations included a private quite [sic] room where she could regulate the temperature or the ability to work from home full time.” (FAC, ¶ 16.) “The campus had a number of these rooms that could have been provided…” (FAC, ¶ 17.) “No interactive process was done and no reasonable accommodations were provided.” (FAC, ¶ 18.)

Defendant asserts that the first cause of action for failure to provide compliant meal periods, the second cause of action for failure to provide compliant rest periods, and the third cause of action for wage statement penalties each fail.

Defendant cites to Allen v. San Diego Convention Center Corp., Inc. (2022) 86 Cal.App.5th 589, 592, where the Court of Appeal noted that “Sharlene Allen is a former employee of the San Diego Convention Center Corporation, Inc. (SDCCC). After SDCCC terminated Allen, she filed the present class action lawsuit against SDCCC alleging various violations of the Labor Code. The trial court largely sustained SDCCC’s demurrer to the complaint on the grounds that the corporation was exempt from liability as a government entity. The court, however, left intact one claim for untimely payment of final wages under Labor Code sections 201, 202, and 203…and derivative claims under the unfair competition law (UCL, Bus. & Prof. Code, § 17200 et seq.) and the Labor Code Private Attorneys General Act of 2004 (PAGA; § 2698 et seq.).” The Allen Court noted as follows:

Defendant asserts that here, “there is no dispute that Defendant SMCCD is a public entity in California.” (Demurrer at p. 4:20-21.) Defendant cites to Government Code section 811.2 (Demurrer at p. 5:9), which provides that “public entity” includes “the state, the Regents of the University of California, the Trustees of the California State University and the California State University, a county, city, district, public authority, public agency, and any other political subdivision or public corporation in the State.” (Emphasis added.) In her response to the demurrer, Plaintiff does not dispute that Defendant is a “public entity,” nor does Plaintiff address the Allen case. In Allen, the Court of Appeal further noted as follows:

“In Johnson, supra, 174 Cal.App.4th 729, the Fifth District Court of Appeal considered whether the provisions requiring meal and rest breaks (§§ 510, 512), allegations central to Allen’s complaint against SDCCC, were applicable to a water storage district. Johnson rejected the employee’s assertion that the trial court improperly sustained the water district’s demurrer to its class action claims “because those sections do not exempt public entities.” (Johnson, at p. 736.) The court upheld the established principal that “unless Labor Code provisions are specifically made applicable to public employers, they only apply to employers in the private sector,” and it concluded that “[s]ince sections 510 and 512 do not expressly apply to public entities,” they were not applicable to the water district. (Id. at p. 733.) As the trial court here concluded, the other provisions of the Labor Code that Allen alleges SDCCC violated—sections 223, 226.7, 227.3, 246, 226, and 2802—also do not expressly apply to public entities, and Allen makes no argument to the contrary.” ((Allen v. San Diego Convention Center Corp., Inc., supra, 86 Cal.App.5th at p. 598).

As set forth above, Plaintiff’s first cause of action here is for failure to provide compliant meal periods. This cause of action cites to Labor Code sections 512 and 226.7. (FAC, ¶¶ 28, 32.) Plaintiff’s second cause of action is for failure to provide compliant rest periods and cites to Labor Code section 226.7. (FAC, ¶¶ 36, 39.) Plaintiff’s third cause of action is for wage statement penalties and cites to Labor Code section 226. (FAC, ¶¶ 43-44.) These Labor Code provisions are addressed above in Allen, and Plaintiff does not make any argument that such provisions apply to public entities.

Based on the foregoing, the Court sustains Defendant’s demurrer to the first, second, and third causes of action of the FAC.

Defendant also asserts that the fourth cause of action of the FAC fails to state a cause of action. Defendant cites to California Medical Assn. v. Regents of University of California (2000) 79 Cal.App.4th 542, 551, where the Court of Appeal found that “Section 17200 (part of the Unfair Practices Act) defines ‘unfair competition’ to include ‘any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising.’…Although ‘persons’ who engage in unfair competition may be sued for damages and injunctive relief…the University of California is a ‘public entity’ (Gov. Code, § 811.2) and, therefore, not a ‘person’ within the meaning of the Unfair Practices Act…It follows that, as a matter of law, SMAMG cannot prevail on its claims of unfair competition or unfair practices.”

As discussed, Defendant asserts that it is a “public entity,” citing to Government Code section 811.2. Plaintiff does not dispute that Defendant is a public entity, nor does she address Government Code section 811.2. Based on the foregoing, the Court sustains Defendant’s demurrer to the fourth cause of action of the FAC.

Defendant also asserts that the fifth cause of action fails to state a cause of action. Defendant cites to Labor Code section 2699, subdivision (b), which provides that “[f]or purposes of this part, ‘person’ has the same meaning as defined in Section 18.” Labor Code section 18 provides that “‘Person’ means any person, association, organization, partnership, business trust, limited liability company, or corporation.” Defendant cites to Wells v. One2One Learning Foundation (2006) 39 Cal.4th 1164, 1192, where the California Supreme Court noted that “[a] traditional rule of statutory construction is that, absent express words to the contrary, governmental agencies are not included within the general words of a statute.” Defendant asserts that Labor Code section 18 does not contain words or phrases used to signify a public entity or governmental agency, and that accordingly, Defendant “is not a ‘person’ within the meaning of PAGA.” (Demurrer at p. 6:10.) Plaintiff does not address or dispute this point in her response.

Based on the foregoing, the Court sustains Defendant’s demurer to the fifth cause of action of the FAC.

Defendant asserts that Plaintiff’s sixth cause of action fails. Defendant notes that to

establish a prima facie case of discrimination, “the plaintiff must provide evidence that (1) he was a member of a protected class, (2) he was qualified for the position he sought or was performing competently in the position he held, (3) he suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some other circumstance suggests discriminatory motive.” ((Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 355.)

In the sixth cause of action for disability discrimination, Plaintiff alleges, inter alia, that “Plaintiff was a disabled individual who had a temporary physical condition which limited Plaintiff’s abilities to perform work over 36 hours per week. Moreover, given that Plaintiff’s physician imposed medical restrictions limiting Plaintiff’s ability to work, and authorized medical leaves of absences for Plaintiff’s condition [sic]. Plaintiff is informed and believes, and based thereon alleges, that Plaintiff was perceived as disabled by Defendants. Plaintiff is informed and believes, and based thereon alleges, that Plaintiff was terminated because Plaintiff was actually disabled and/or perceived as disabled.” (FAC, ¶ 62.)

In the demurrer, Defendant asserts that paragraph 62 of the FAC is “uncertain and confusing” because Plaintiff fails to state what her disability is. (Demurrer at p. 7:20.) But as set forth above, Plaintiff alleges that she “has brain tumor.” (FAC, ¶ 14.)

Defendant also contends that Plaintiff has “not sufficiently plead facts to establish that Defendant SMCCD took any adverse employment actions against her…” (Demurrer at p. 8:20-21.) But Plaintiff alleges that she “was terminated because Plaintiff was actually disabled and/or perceived as disabled.” (FAC, ¶ 62.) Defendant contends that Plaintiff “continues to work at SMCCD in her part-time role as an instructional assistant.” (Demurrer at p. 8:26-27.) The Court notes that this is a factual argument that is not appropriate on demurrer. The Court notes that “[a] demurrer can be used only to challenge defects that appear on the face of the complaint or from matters outside the pleading that are judicially noticeable.” ((Simple Avo Paradise Ranch, LLC v. Southern California Edison Co. (2024) 102 Cal.App.5th 281, 298-299.)

Defendant also argues, inter alia, that Plaintiff “has failed to plead sufficient factual allegations to support the conclusory allegations that the District had any discriminatory motive.” (Demurrer at p. 8:21-22.) As discussed, paragraph 62 of the FAC alleges that “Plaintiff was terminated because Plaintiff was actually disabled and/or perceived as disabled.” However, as noted by Defendant, Plaintiff does not appear to allege specific facts to demonstrate Defendant’s purported discriminatory motive.

Based on the foregoing, the Court sustains Defendant’s demurrer to the sixth cause of action of the FAC.

G. Seventh Cause of Action for Failure to Engage in the Interactive Process and Eighth Cause of Action for Failure to Accommodate

Lastly, Defendant asserts that the seventh and eighth causes of action fail. Pursuant to Government Code section 12940, subdivision (n), “[i]t is an unlawful employment practice…[f]or an employer or other entity covered by this part to fail to engage in a timely, good faith, interactive process with the employee or applicant to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee or applicant with a known physical or mental disability or known medical condition.” Defendant cites to Swanson v. Morongo Unified School Dist. (2014) 232 Cal.App.4th 954, 971, where the Court of Appeal noted that “[a]lthough the interactive process is an informal process designed to identify a reasonable accommodation that will enable the employee to perform his or her job effectively, an employer’s failure to properly engage in the process is separate from the failure to reasonably accommodate an employee’s disability and gives rise to an independent cause of action. The employee must initiate the process unless his or her disability and the resulting limitations are obvious. Once initiated, the employer has a continuous obligation to engage in the interactive process in good faith.” (Internal citations omitted.)

In addition, pursuant to Government Code section 12940, subdivision (m)(1), “[i]t is an unlawful employment practice…(1)¿For an employer or other entity covered by this part to fail to make reasonable accommodation for the known physical or mental disability of an applicant or employee.” Defendant cites to Raine v. City of Burbank (2006) 135 Cal.App.4th 1215, 1222, where the Court of Appeal noted that “[i]t is also unlawful…for an employer to fail to make reasonable accommodation for the known physical or mental disability of an applicant or employee unless the accommodation would cause undue hardship to the employer. Generally, [t]he employee bears the burden of giving the employer notice of the disability. This notice then triggers the employer’s burden to take positive steps to accommodate the employee’s limitations…The employee, of course, retains a duty to cooperate with the employer’s efforts by explaining [his or] her disability and qualifications. Reasonable accommodation thus envisions an exchange between employer and employee where each seeks and shares information to achieve the best match between the employer’s capabilities and available positions.” (Internal quotations and citations omitted.)

Defendant asserts that here, Plaintiff “has failed to set forth any factual allegations as to when she gave notice of her ‘disability.’” (Demurrer at p. 10:22-23.) As discussed, Plaintiff alleges that “[s]he went to the neurologist in May and provided a Dr. Note to the HR Regina Rogers and her supervisor Wendy DeMorst requesting reasonable accommodations.” (FAC, ¶ 15.) Defendant does not appear to cite to legal authority demonstrating that Plaintiff must plead the specific date on which she gave notice of her disability.

Defendant also notes that paragraph 68 of the FAC alleges that “Defendants failed to engage in an adequate, good faith interactive process with Plaintiff, including without limitation, failing to see what alternatives could be put in play in order to keep Plaintiff working – despite being put on notice of Plaintiff’s specific need for a reasonable accommodation.” Defendant argues that this allegation shows that Plaintiff “concedes that SMCCD engaged in the interactive process but appears to be challenging that the accommodation as she apparently did not like the alternatives.” (Demurrer at pp. 10:27-11:1.) The Court does not see how the allegations of paragraph 68 show that Plaintiff somehow concedes Defendant engaged in the interactive process. Plaintiff alleges that “Defendants failed to engage in an adequate, good faith interactive process with Plaintiff…” (FAC, ¶ 68.)

Defendant also argues that “in terms of the failure to accommodate claim, Plaintiff provides no factual allegations in the eighth cause of action and instead just makes a conclusory statement that she was not accommodated.” (Demurrer at p. 11:3-5.) But as discussed, Plaintiff alleges in the “factual allegations” section of the FAC that “[r]easonable accommodations included a private quite [sic] room where she could regulate the temperature or the ability to work from home full time.” (FAC, ¶ 16.) Plaintiff alleges that “[t]he campus had a number of these rooms that could have been provided,” and that “[n]o interactive process was done and no reasonable accommodations were provided.” (FAC, ¶¶ 17-18.) The Court does not find that Defendant has shown that Plaintiff’s seventh or eighth causes of action fail.

Based on the foregoing, the Court overrules Defendant’s demurrer to the seventh and eighth causes of action of the FAC.

A court may strike any “¿irrelevant, false, or improper matter inserted in any pleading¿” or all or any part of a pleading “¿not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.¿” (¿Code Civ. Proc., § 436¿.) “¿The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.¿” (¿Code Civ. Proc., § 437¿.) Defendant moves to strike a number of allegations from the FAC. (Notice of Mot. at p. 2.)

As set forth above, the Court sustains Defendant’s demurrer to the sixth cause of action. Thus, the Court denies as moot Defendant’s motion to strike paragraph 65 of the FAC, as well as the request for punitive damages in the prayer for relief as to the sixth cause of action. The Court also notes that Defendant appears to move to strike, inter alia, paragraphs “90, 102, and 110” of the FAC. (Notice of Motion, p. 2, ¶ 1.) The Court notes that the FAC does not contain any paragraphs 90, 102, or 110. Thus, the Court denies Defendant’s purported motion to strike such paragraphs.

Defendant also moves to strike the request for “damages” in the prayer for relief as to the first, second, third, fourth, and fifth causes of action of the FAC. (Notice of Motion, p. 2, ¶¶ 2-6.)[2] Defendant’s motion does not appear to contain any argument as to why such allegations should be stricken. Thus, the Court denies Defendant’s motion to strike such allegations.

Defendant also moves to strike paragraph 71 of the FAC, and Plaintiff’s request in the prayer for relief for punitive damages in connection with the seventh and eighth causes of action. (See Compl., p. 12:20; 12:27.) Defendant asserts that “Plaintiff is barred from seeking punitive damages against Defendant pursuant to California Government Code § 818.” (Mot. at p. 2:14-16.) Government Code section 818 provides that “[n]otwithstanding any other provision of law, a public entity is not liable for damages awarded under Section 3294 of the Civil Code or other damages imposed primarily for the sake of example and by way of punishing the defendant.” Defendant states that it is a public entity. As discussed above, Government Code section 811.2 provides that “public entity” includes “the state, the Regents of the University of California, the Trustees of the California State University and the California State University, a county, city, district, public authority, public agency, and any other political subdivision or public corporation in the State.” (Emphasis added.) In her response, Plaintiff does not address or dispute Defendant’s assertion that Plaintiff is precluded from making a claim for punitive damages against Defendant.

Based on the foregoing, the Court grants Defendant’s motion to strike paragraph 71 of the FAC, as well as Plaintiff’s request in the prayer for relief for punitive damages in connection with the seventh and eighth causes of action, with leave to amend.

Based on the foregoing, the Court sustains Defendant’s demurrer to the first, second, third, fourth, fifth, and sixth causes of action of the FAC, with leave to amend. The Court overrules Defendant’s demurrer to the seventh and eighth causes of action of the FAC.

The Court grants Defendant’s motion to strike in part, with leave to amend, and denies the motion in part, as set forth above.

The Court orders Plaintiff to file and serve an amended complaint, if any, within 20 days of the date of this Order. If no amended complaint is filed within 20 days of this Order, Defendant is ordered to file and serve its answer within 30 days of the date of this Order.¿

[1]The Court does not find that Defendant has shown that any of Plaintiff’s causes of action are uncertain. Thus, the Court overrules Defendant’s demurrer on the grounds of uncertainty.

[2]The Court notes that the prayer for relief as to the third, fourth, and fifth causes of action does not appear to allege that Plaintiff seeks “damages” in connection with these causes of action.

Superior Court of California

County of Los Angeles

Department 50