Judge: Teresa A. Beaudet, Case: 24STCV04519, Date: 2024-06-18 Tentative Ruling

Case Number: 24STCV04519    Hearing Date: June 18, 2024    Dept: 50

Superior Court of California

County of Los Angeles

Department 50

Background

Plaintiff Ana Rojo (“Plaintiff”) filed this action on February 22, 2024 against Defendants Mrs. Gooch’s Natural Food Markets, Inc. dba Whole Foods Market, Whole Foods Market California, Inc., and Whole Foods Market, Inc. The Complaint alleges causes of action for

(1) discrimination, (2) retaliation, (3) failure to provide reasonable accommodation, (4) failure to engage in the interactive process, (5) failure to prevent discrimination and retaliation,

(6) violation of the California Family Rights Act, (7) retaliation in violation of Pregnancy Disability Leave Law, (8) interference with, restraint, and/or denial of rights in violation of Pregnancy Disability Leave Law, (9) wrongful termination in violation of public policy, and (10) breach of implied-in-fact contract not to terminate employment without good cause.

Mrs. Gooch’s Natural Food Markets, Inc., Whole Foods Market, Inc., and Whole Foods Market California, Inc. (collectively, “Defendants”) now move to strike portions of Plaintiff’s Complaint. Plaintiff opposes.

Discussion

A.    Legal Standard

A court may strike any “irrelevant, false, or improper matter inserted in any pleading” 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.” ((Id., § 437.)

B.    Allegations of the Complaint

In the Complaint, Plaintiff alleges that she “began her employment with Whole Foods in or around September 2017.” (Compl., ¶ 15.) “In August 2022, [Plaintiff] sustained a serious shoulder injury at work that caused her significant pain and impaired her shoulder’s mobility. [Plaintiff] commenced ongoing medical treatment for this injury and then requested and took medical leave starting in mid-late August 2022.” (Compl., ¶ 17(a).)

“Between October and December 2022, while on medical leave, [Plaintiff] transferred from Whole Foods’ Beverly Hills store to the West Hollywood store. [Plaintiff] also became pregnant in the fall of 2022.” (Compl., ¶ 17(b).) “Around December 2022, [Plaintiff] returned from medical leave and began work at the West Hollywood store, but with physical restrictions that arose from her shoulder injury. Her restrictions, of which she informed Whole Foods, included limitations on lifting, repetitive work, and use of her injured shoulder…Whole Foods management failed to accommodate [Plaintiff] by repeatedly directing and/or pressuring her to perform tasks that ran afoul of the documented medical restrictions set forth by [Plaintiff’s] doctor. [Plaintiff] voiced her opposition regarding the failure to accommodate to management, but no remedial action was taken.” (Compl., ¶ 17(c).)

“Around March 2023, [Plaintiff] was experiencing complications with her pregnancy that rendered her affected and disabled by pregnancy within the meaning of the PDLL. As a result, Rojo sought medical treatment and took protected leave in connection with her pregnancy starting in or around March 2023. [Plaintiff] delivered her baby in May 2023.” (Compl., ¶ 17(d).)

“After giving birth, [Plaintiff] developed post-partum depression which caused her to obtain medical treatment and extend her leave multiple times. [Plaintiff] returned to work in October 2023.” (Compl., ¶ 17(e).) “[Plaintiff’s] physical restrictions arising out of her shoulder injury were still in effect when she returned to work. Upon her return, however, Whole Foods claimed for the first time that it was no longer able to accommodate [Plaintiff] on the false basis that her restrictions had become permanent.” (Compl., ¶ 17(f).) “Opposing Whole Foods’ failure to accommodate her restrictions, [Plaintiff] informed Whole Foods that her restrictions were in effect only until her shoulder injury sufficiently improves, whether following surgery and/or less invasive treatment. She explained that her pregnancy had delayed treatment of her shoulder, hence why the restrictions were still in effect.” (Compl., ¶ 17(g).)  

Plaintiffs allege that “[d]espite the above facts and [Plaintiff’s] explanations, Whole Foods failed to engage in any meaningful or good-faith interactive process regarding [Plaintiff’s] known disability and failed to explore the availability of effective and reasonable accommodations. Whole Foods also failed to investigate [Plaintiff’s] concerns regarding the failure to accommodate, as it was required to do pursuant to FEHA and its own policies. Disregarding its affirmative duty to accommodate disabled employees, Whole Foods instead falsely claimed in conclusory fashion [sic] that no accommodations were available, and that [Plaintiff] was ineligible for medical leave.” (Compl., ¶ 17(h).)

Plaintiffs allege that “[i]n November 2023, Whole Foods terminated [Plaintiff’s] employment on the false and pretextual basis that no accommodations were available, and that she was ineligible for medical leave. By doing so, it discharged [Plaintiff] on the express basis of her disability and in retaliation for her prior taking of protected leaves for her disabilities and pregnancy. Whole Foods illegally used [Plaintiff’s] prior leaves taken under CFRA and the PDLL against her in a punitive manner to justify denying her further accommodations to which she was entitled. Further, prior to [Plaintiff’s] disclosure of her pregnancy and taking of leave for the same, Whole Foods never stated that it could not accommodate her physical restrictions arising out of the shoulder injury. Thus, the timing of events also indicates pretext.” (Compl., ¶ 17(i).)

C.    Punitive Damages

Plaintiff seeks punitive damages in connection with the first through ninth causes of action of the Complaint. (Compl., ¶¶ 33, 42, 50, 58, 66, 76, 83, 92, 98.)

Pursuant to Civil Code section 3294, subdivision (a), “[i]n an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.”

As used in Civil Code section 3294, “‘Malice’ means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” (Civ. Code, § 3294, subd. (c)(1).) “‘Oppression’ means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” (Civ. Code, § 3294, subd. (c)(2).) “‘Fraud’ means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.” (Civ. Code, § 3294, subd. (c)(3).)

In the motion, Defendants argue that Plaintiff’s claim for punitive damages should be stricken because “Plaintiff cannot show the required specific facts articulating oppression, fraud, or malice by any sufficiently senior person of Defendants.” (Mot. at p. 5:12-13.) Defendants point to paragraph 20 of the Complaint and assert that “Plaintiff recites the definitions of malice, fraud and oppression from the Civil Code and the basic elements of her causes of action. (Compl., ¶ 20.) These conclusory statements are merely a recitation of the legal standard, not specifically alleged facts sufficient to warrant the imposition of punitive damages against Defendants.” (Mot. at p. 7:6-9.)

Defendants also cite to Scott v. Phoenix Schools, Inc. (2009) 175 Cal.App.4th 702, 717, where the Court of Appeal noted as follows:

“In Cloud v. Casey (1999) 76 Cal.App.4th 895 [90 Cal. Rptr. 2d 757], a female employee was passed over for promotion because of her gender. The court held the employer was liable for punitive damages because it denied the plaintiff a promotion based on gender, then attempted to hide the illegal reason for denying the promotion with a false explanation, and that it was this fabrication that constituted the despicable conduct. (Id. at p. 912.)

In Stephens v. Coldwell Banker Commercial Group, Inc. (1988) 199 Cal.App.3d 1394 [245 Cal. Rptr. 606], an age discrimination case, the 63-year-old plaintiff was demoted, and when his supervisor discovered he had no plans to retire, the supervisor “engaged in a program of unwarranted criticism of plaintiff’s job performance to justify plaintiff's demotion.” (Id. at pp. 1398, , disapproved on another ground in White v. Ultramar, Inc. (1999) 21 Cal.4th 563, 574, fn. 4 [88 Cal. Rptr. 2d 19, 981 P.2d 944].) The court found the unwarranted criticism to be oppressive behavior because it had no factual justification, damaged the plaintiff’s reputation, and subjected the plaintiff to embarrassment. (Stephens, at pp. 1403–1404.)

Based upon the foregoing cases, we conclude that wrongful termination, without more, will not sustain a finding of malice or oppression. There was no evidence Phoenix attempted to hide the reason it terminated Scott. It admitted to terminating her because she would not enroll the McMaster child. Likewise, there was no evidence Phoenix engaged in a program of unwarranted criticism to justify her termination. Because there was nothing more than a wrongful termination here, punitive damages were not warranted, and the trial court should have granted defendant’s motion for judgment notwithstanding the verdict on the issue of punitive damages.”

In the opposition, Plaintiff asserts that here, she “alleges in detail that Defendants’ managing agents, officers, and/or directors asserted false explanations to cover up their intentional taking of discriminatory and retaliatory adverse employment actions.” (Opp’n at p. 1:25-27.) Plaintiff points to the allegations in the Complaint that “[Plaintiff’s] physical restrictions arising out of her shoulder injury were still in effect when she returned to work. Upon her return, however, Whole Foods claimed for the first time that it was no longer able to accommodate [Plaintiff] on the false basis that her restrictions had become permanent. Not only were the restrictions not permanent, but also, they posed no undue hardship to Whole Foods even if they had been permanent.” (Compl., ¶ 17(f).)

Plaintiff also points to the allegation that “[d]isregarding its affirmative duty to accommodate disabled employees, Whole Foods instead falsely claimed in conclusory fashion that no accommodations were available, and that [Plaintiff] was ineligible for medical leave.” (Compl., ¶ 17(h).) Plaintiff notes that she alleges that “[i]n November 2023, Whole Foods terminated [Plaintiff’s] employment on the false and pretextual basis that no accommodations were available, and that she was ineligible for medical leave. By doing so, it discharged Rojo on the express basis of her disability and in retaliation for her prior taking of protected leaves for her disabilities and pregnancy.” (Compl., ¶ 17(i).)

Plaintiff asserts that under Cloud v. Casey, supra, 76 Cal.App.4th, discussed above, “an employer’s concealing of wrongful motives with false explanations warrants punitive damages.” (Opp’n at p. 1:10-11.) The Cloud Court found that “[m]alice under Civil Code section 3294 includes ‘despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights . . . of others.’…The adjective ‘despicable’ used in section 3294 refers to ‘circumstances that are ‘base,’ ‘vile,’ or ‘contemptible.’…The jury could properly conclude that the corporations intentionally discriminated by denying Ms. Cloud a promotion based on gender, then attempted to hide the illegal reason for their decision with a false explanation, and that in this, they acted in a manner that was base, contemptible or vile. The discriminatory employment decision denied Ms. Cloud her protected right under FEHA ‘to seek, obtain, and hold employment without discrimination or abridgment on account of…sex….’…Evidence that the decisionmaker attempted to hide the improper basis with a false explanation also supports the jury’s determination that the conduct was willful and in conscious disregard of Ms. Cloud’s rights.” (Id. at p. 912.)

Based on the foregoing, the Court finds that Plaintiff’s allegations here sufficiently demonstrate “malice” for purposes of Plaintiff’s request for punitive damages.

Defendants also cite to Civil Code section 3294, subdivision (b), which provides that “[a]n employer shall not be liable for damages pursuant to subdivision (a), based upon acts of an employee of the employer, unless the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice. With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation.”

Defendants note that the Complaint alleges that “Defendants’ illegal actions were committed intentionally, in a malicious, fraudulent, and/or oppressive manner, by and with the ratification, authorization, and/or approval of managing agents, officers, and/or directors, thereby entitling plaintiff to recover punitive damages.” (See, e.g., Compl., ¶ 33.) Defendants argue that “[t]hese conclusory statements leave Defendants in the dark as to whom supposedly did what precisely that could possibly support an award of punitive damages.” (Mot. at p. 7:26-27.) Defendants also contend that “Plaintiff’s Complaint is devoid of any allegations that any particular person (much less someone sufficiently senior) had acted in any manner demonstrating malice, oppression, or fraud, as required to properly allege punitive damages with the requisite specificity against a corporate defendant.” (Mot. at pp. 7:27-8:2.)

But as noted by Plaintiff, Defendants do not appear to cite any authority for the proposition that a managing agent must be identified by name in the complaint. Plaintiffs also note that “[t]he scope of a corporate employee’s discretion and authority … is … a question of fact for decision on a case-by-case basis.” ((King v. U.S. Bank National Assn. (2020) 53 Cal.App.5th 675, 713.)  

In light of the foregoing, the Court denies Defendants’ motion to strike Plaintiff’s request for punitive damages. 

Conclusion

Based on the foregoing, Defendants’ motion to strike is denied.   

The Court orders Defendants to file and serve their answer to the Complaint within 10 days of the date of this Order.

Plaintiff is ordered to give notice of this Order.¿ 

DATED:  June 18, 2024                                 ________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court