Judge: Theodore R. Howard, Case: 21-1238447, Date: 2023-08-10 Tentative Ruling

A)        Demurrer

Defendant Newlight Technologies, Inc.’s (“Defendant”) Demurrer to plaintiff Isaac Renteria’s (“Plaintiff”) First Amended Complaint (“FAC”) is OVERRULED in part and SUSTAINED in part.

Overruled as to causes of action (“COA”) Nos. 1 – 4, 6 – 8.

Sustained as to COA No. 5.

A demurrer challenges the defects appearing on the face of the pleading or from other matters properly subject to judicial notice.  (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)  The issue is the sufficiency of the pleading, not the truth of the facts alleged.  Thus, no matter how unlikely or improbable, the allegations made must be accepted as true for the purpose of ruling on the demurrer.  (Del E. Webb Corporation v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.)  Absent court orders or other items subject to judicial notice, or items attached as exhibits to the complaint, the court may not consider the contents of pleadings or other exhibits when ruling on a demurrer.  (Day v. Sharp (1975) 50 Cal.3d 904, 914;  Sosinsky v. Grant (1992) 6 Cal.App.4th 1746, 1749.)

“In our examination of the complaint we are guided by the well settled principles governing the testing of its sufficiency by demurrer: A demurrer admits all material and issuable facts properly pleaded. [Citations omitted.]  However, it does not admit contentions, deductions or conclusions of fact or law alleged therein. [Citations omitted.]”  (Daar v. Yellow Cab Co. (1967) 67 Cal.2d 666, 672.)  “That plaintiff may not prove these allegations are not our concern; for, “plaintiff need only plead facts showing that he may be entitled to some relief ....” (Ibid.) “'[T]he allegations ... [are to] be liberally construed with a view to attaining substantial justice among the parties.”'”  (Gonzales v. City of San Diego (1982) 130 Cal. App. 3d 882, 884.)

“ ‘[D]emurrers for uncertainty are disfavored, and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.’ ” [Citations.] “ ‘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.’ ”  (A.J. Fistes Corp. v. GDL Best Contractors, Inc. (2019) 38 Cal. App. 5th 677, 695.)

Defendant demurs to all 8 causes of action (“COA”) on the basis that they fail to state sufficient facts to constitute a COA (Civ. Proc. Code § 430.10(e)) and they are uncertain (Civ. Proc. Code § 430.10(f)).

1)       COA Nos. 1 – Discrimination in Violation of Cal. Gov. Code § 12940 et seq.

“It is an unlawful employment practice, unless based upon a bona fide occupational qualification, or, except where based upon applicable security regulations established by the United States or the State of California:

(a) For an employer, because of the race . . . national origin . . . physical disability, mental disability . . . medical condition . . . age . . . of any person, to refuse . . . employ the person . . or to bar or to discharge the person from employment or from a training program leading to employment, or to discriminate against the person in compensation or in terms, conditions, or privileges of employment.. . .” (Gov't Code § 12940.)

In this COA, Plaintiff alleges he, “was a person with an actual, perceived, potentially disabling, and/or potentially disabling in the future physical disability(s).”  (FAC ¶ 25.)  Plaintiff also states he was a member of groups protected by statute, including race and/or national origin, disability medical condition, and age.  (FAC ¶ 25.)  Plaintiff alleges Defendant failed to investigate and/or protected Plaintiff from discrimination based upon. “actual/perceived physical/mental disabilities and the prohibition of actual/perceived physical/mental disability Discrimination.”  (FAC ¶¶ 27-28.)  The acts of Defendant were alleged to be so pervasive as to alter conditions of employment and create an abusive working environment.  (FAC ¶ 29.)  Plaintiff’s race and/or national origin, age, actual/perceived physical/mental disability(s), and/or attempts to engage in protected activity, and/or complaints about the unlawful conduct were motivating reasons and/or factors in DEFENDANTS’ conduct.”  (FAC ¶ 29.)  The acts and omissions of Defendant allegedly rendered Plaintiff sick and disabled, and Plaintiff suffered numerous injuries including emotional and mental distress, anguish, humiliation, embarrassment, fright, shock, pain, discomfort, and anxiety.  (FAC ¶ 30.)

Many of the allegations are simple copy and pasting of code sections, which do not support a COA under discrimination.  Plaintiff also provided no facts to support any form of discrimination under the age, race, national origin, or mental disability categories.  (FAC ¶¶ 2, 20, 24-25, 83, 106.) 

However, Plaintiff did provide some facts under the physical disability category.  Specifically, Plaintiff alleged that on 09/17/20, Plaintiff suffered a work-place injury that caused severe physical harm to his back, foot, and neck.  (FAC ¶¶ 11-12.)   Plaintiff immediately notified Defendant he was injured, in paid, and was taking a break due to the injury.  (FAC ¶ 13.)  Plaintiff was then written up when he returned from the break.  (FAC ¶¶ 13.)  Plaintiff was not notified by Defendant of Workers’ Compensation rights.  (FAC ¶ 14.)  A physician later put Plaintiff on light duty, to which Defendant failed to provide any accommodation.  (FAC ¶¶ 15-17.)  Plaintiff was also accused of faking his injury and subjected to other inappropriate comments from Defendant.  (FAC ¶ 16.)  Despite being aware of Plaintiff’s injury and being placed on light work duty and accommodations by a physician, Defendant required Plaintiff to continue his normal duties and did not provide accommodations.  (FAC ¶ 17.)  When Plaintiff filed a Workers’ Compensation claim and began receiving treatment, Defendant allegedly contacted Plaintiff’s physician and claimed Plaintiff was “faking his injury.”  (FAC ¶¶ 18-19.) 

While Plaintiff has not provided any facts supporting discrimination on the basis of age, race, national origin, or perceived mental disability, he has provided sufficient facts to allege these COA on the basis of physical disability, which is sufficient to overrule the demurrer.  (Fire Ins. Exch. v. Superior Ct. (2004) 116 Cal. App. 4th 446, 452.)  Although it may be true that not every illness qualifies for a disability (Avila v. Cont'l Airlines, Inc. (2018) 165 Cal. App. 4th 1237, 1249 – issue on summary judgment not demurrer), whether Plaintiff was sufficiently disabled by his injuries is left for the trier of fact and not for determination on a demurrer.

Defendant argues that Plaintiff has alleged no adverse employment action done by Defendant.  However, Plaintiff alleged he was constructively discharged.  “Constructive discharge occurs when the employer's conduct effectively forces an employee to resign. Although the employee may say, “I quit,” the employment relationship is actually severed involuntarily by the employer's acts, against the employee's will. As a result, a constructive discharge is legally regarded as a firing rather than a resignation.”  (Turner v. Anheuser-Busch, Inc. (1994) 7 Cal. 4th 1238, 1244–45.)  A constructive discharge occurs when, “an employee who is forced to resign due to actions and conditions so intolerable or aggravated at the time of his resignation that a reasonable person in the employee's position would have resigned, and whose employer had actual or constructive knowledge of the intolerable actions and conditions and of their impact upon the employee and could have remedied the situation, but did not, is constructively discharged.”  (Id., at 1245.)  

The FAC alleges that based the pattern and practice of workplace harassment and discrimination based upon Plaintiff’s protected categories that left Plaintiff with no other choice to consider himself constructively terminated.  (FAC ¶ 20.)  Although dates and lengthy information about all of the different individual acts of discrimination were not provided, Plaintiff did allege ongoing allegations of “faking it,” discriminatory remarks, and failure to provide reasonable accommodations, which is sufficient to state this COA at this time and pass through the demurrer stage to the trier of fact.  “Although situations may exist where the employee's decision to resign is unreasonable as a matter of law, “[w]hether conditions were so intolerable as to justify a reasonable employee's decision to resign is normally a question of fact.”  (Vasquez v. Franklin Mgmt. Real Est. Fund, Inc. (2013) 222 Cal. App. 4th 819, 827.) 

Plaintiff has pled sufficient facts to support this COA.  The Demurrer is OVERRULED as to this COA.

2)       COA No. 2 – Disability Retaliation, Violation of Cal. Gov. Code § 12940 et seq.

“[I]n order to establish a prima facie case of retaliation under the FEHA, a plaintiff must show (1) he or she engaged in a “protected activity,” (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer's action.”  (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal. 4th 1028, 1042.)

“FEHA not only protects against “ultimate employment actions such as termination or demotion, but also the entire spectrum of employment actions that are reasonably likely to adversely and materially affect an employee's job performance or opportunity for advancement....” [Citation.] Actionable retaliation need not be carried out in “one swift blow,” but rather may be “a series of subtle, yet damaging, injuries.” [Citation.] Thus, each alleged retaliatory act need not constitute an adverse employment action in and of itself, and the totality of the circumstances must be considered.”  (McCoy v. Pac. Mar. Assn. (2013) 216 Cal. App. 4th 283, 299.)  “[T]he determination of whether a particular action or course of conduct rises to the level of actionable conduct should take into account the unique circumstances of the affected employee as well as the workplace context of the claim.” (Ibid.) Such a determination “is not, by its nature, susceptible to a mathematically precise test.”  (Id.)

Plaintiff alleged he notified Defendant of the need for a leave of absence for disabilities and/or serious medical condition that was the result of a work-related injury, and that he needed accommodation.  (FAC ¶¶ 11-12, 38.)  When Plaintiff took a break at the time of his injuries due to pain, he was written up.  (FAC ¶ 13.)  After filing a Workers’ Compensation claim, Plaintiff was told he was faking his injury, Defendant’s called Plaintiff’s physician to state the same, Defendant did not provide accommodations as order by his physician, and Plaintiff was subject to harassment and inappropriate comments.  (FAC ¶¶15-17.)  Plaintiff was also denied a promotion, had a change and lessening of job responsibilities, was deprived of overtime hours, and written-up for taking a leave of absence and then working from home.  (FAC ¶¶ 7-10.)  Finally, due to the ongoing allegedly improper actions, Plaintiff was constructively discharged.  (FAC ¶ 20.)

At this time, Plaintiff has pled sufficient facts to support this COA.  Defendant’s argument is to essentially apply summary judgment standards instead of demurrer standards to the present case.  The cases cited by Defendant also discuss summary judgment motions and not demurrers.

The Demurrer is OVERRULED as to this COA.

3)       COA No. 3 – Failure to Engage in Good Faith Interactive Process Cal. Gov. Code § 12940 et seq.

“For 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.”  (Gov't Code § 12940(n).)

Plaintiff alleged he was injured at work and that his physician placed him on “light duty” accommodations.  (FAC ¶¶ 11-12, 15.)  Plaintiff also filed a Workers’ Compensation claim. (FAC ¶ 18.)  Defendant failed to provide Plaintiff with reasonable accommodations and instead required Plaintiff to continue his normal duties.  (FAC ¶ 17.)  Defendant also contacted Plaintiff’s physician and claimed Plaintiff was faking his injury.  (FAC ¶ 19.)  Despite Defendant having notice of Plaintiff’s need for leave and/or accommodation, Defendant refused to engage in a good-faith interactive process with Plaintiff to determine reasonable accommodations.  (FAC ¶ 54.)  Plaintiff was willing to engage in the process.  (FAC ¶ 58.)  Plaintiff was harmed by severe emotional and mental distress and anguish, humiliation, embarrassment, fright, shock, pain, discomfort, and anxiety, as well as loss of income, earning capacity, and medical expenses.  (FAC ¶¶ 59-60.)

Defendant’s arguments are sparce as to this COA and are only based on Plaintiff not specifying the type of accommodations he required and his jobs duties were performed.  This information can all be determined in discovery.

Plaintiff has pled sufficient facts to support this COA.  The Demurrer is OVERRULED as to this COA.

4)       COA No. 4 – Failure To Prevent Discrimination, Harassment, Retaliation in Violation of Cal. Gov. Code § 12940, et seq.

Defendant merely argues this COA is derivative of the other statutory claims and must fail as without actionable discrimination and/or retaliation, there can be no failure to prevent.  However, as noted above, Plaintiff has pled sufficient facts to support the discrimination and relation COA at this stage.  Therefore, Defendant’s failure to prevent those acts is also sufficiently pled.  (FAC ¶¶ 66-69.)

 The Demurrer is OVERRULED as to this COA.

5)       COA No. 5 – Intentional Infliction of Emotional Distress

The elements to a claim for Intentional Infliction of Emotional Distress are, “‘(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct.”  (Hughes v. Pair (2009) 46 Cal. 4th 1035, 1050.)

“ ‘ “To be “outrageous,” conduct “must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.” [Citation.] Moreover, “'[i]t is for the court to determine, in the first instance, whether the defendant's conduct may reasonably be regarded as so extreme and outrageous as to permit recovery.” ‘ “  (Fowler v. Varian Assocs., Inc. (1987) 196 Cal. App. 3d 34, 44.)

The definition of “reckless disregard” is “conscious indifference to the consequences of an act.”  (DISREGARD, Black's Law Dictionary (11th ed. 2019).) 

Here, Plaintiff has largely only pled conclusions of law or the specific elements of IIED, but few facts to support the actual elements of the COA.  (FAC ¶¶ 76-78.)  While Plaintiff has pled sufficient facts to support the retaliation and discrimination COA (supra) the conduct alleged of Defendants equates to making improper statements and not providing accommodations for an injury.  Nothing alleged raises to the level of “extreme and outrageous conduct” as required for this COA.

Defendant also argues this COA is barred by the Workers’ Compensation exclusivity provision.  To the extent that Plaintiff may have suffered some sort of emotional distress from the work-related injury discrimination cited in COA Nos. 1-4, injury discrimination is not a normal risk of the Workers’ Compensation bargain and therefore IIED based thereon would not be barred by the exclusivity rule.  (City of Moorpark v. Superior Ct. (1998) 18 Cal. 4th 1143, 1155.)  That being said, again, Plaintiff has failed to state sufficient facts to support this COA.

The Demurrer is SUSTAINED as to this COA.

6)       COA No. 6 – Constructive/Wrongful Termination in Violation of Public Policy

“The elements of a claim for wrongful discharge in violation of public policy are (1) an employer-employee relationship, (2) the employer terminated the plaintiff's employment, (3) the termination was substantially motivated by a violation of public policy, and (4) the discharge caused the plaintiff harm.”  (Garcia-Brower v. Premier Auto. Imports of CA, LLC (2020) 55 Cal. App. 5th 961, 973.)

Plaintiff has alleged he worked for Defendant.  (FAC ¶¶ 3-21, 81.)  Plaintiff has alleged constructive termination.  (FAC ¶¶ 20, 39, 44, 83.)  It appears from facts alleged that the constructive termination was the result of Plaintiff seeking and receiving Workers’ Compensation due to a workplace injury and Defendant’s write-up of Plaintiff, Defendant’s refusal to provide physician ordered accommodation, Defendant conducted harassment and discriminatory behavior towards Plaintiff, and Defendant interfered with, denied, and/or restrained Plaintiff when he sought medical accommodation.  (FAC ¶¶ 11-21, 83; (Turner, supra, 7 Cal. 4th at 1244–45 [“[A] constructive discharge is legally regarded as a firing.”].)  Retaliation against an employee who filed a claim with Workers’ Compensation is a violation of public policy.  (Lab. Code § 98.6.)  Plaintiff has also alleged the constructive discharged caused him harm.  (FAC ¶¶ 32, 49, 60, 72, 86.)

While Defendant is correct in that it does not appear that Plaintiff has pled sufficient facts to support wrongful termination based upon the leave of absence Plaintiff took to care for his child, Plaintiff has pled sufficient facts to support wrongful termination based upon the workplace injury and subsequent Workers’ Compensation claim at this time.

The Demurrer is OVERRULED as to this COA.

7)       COA No. 7 – Violation of California Family Rights Act/Retaliation

““The elements of a cause of action for retaliation in violation of CFRA are: ‘ “(1) the defendant was an employer covered by CFRA; (2) the plaintiff was an employee eligible to take CFRA [leave]; (3) the plaintiff exercised her right to take leave for a qualifying CFRA purpose; and (4) the plaintiff suffered an adverse employment action, such as termination, fine, or suspension, because of her exercise of her right to CFRA [leave].” ’”  (Soria v. Univision Radio Los Angeles, Inc. (2016) 5 Cal. App. 5th 570, 604.)

“(a) It shall be an unlawful employment practice for any employer, as defined in paragraph (4) of subdivision (b), to refuse to grant a request by any employee with more than 12 months of service with the employer, and who has at least 1,250 hours of service with the employer during the previous 12-month period or who meets the requirements of subdivision (r), to take up to a total of 12 workweeks in any 12-month period for family care and medical leave. Family care and medical leave requested pursuant to this subdivision shall not be deemed to have been granted unless the employer provides the employee, upon granting the leave request, a guarantee of employment in the same or a comparable position upon the termination of the leave. The council shall adopt a regulation specifying the elements of a reasonable request. . .”  (Gov't Code § 12945.2.)

“(a) Any violation of CFRA or these implementing regulations constitutes interfering with, restraining, or denying the exercise of rights provided by CFRA. “Interfering with” the exercise of an employee's rights includes, for example, refusing to authorize CFRA leave and discouraging an employee from using such leave. It would also include an action by a covered employer to avoid responsibilities under CFRA, for example:

(1) Changing the essential functions of the job in order to preclude the taking of leave;

(2) Reducing an employee's hours available to work in order to avoid employee eligibility; and

(3) Terminating an employee when it anticipates an otherwise eligible employee will be asking for a CFRA-qualifying leave in the future.

(b) CFRA's prohibition against “interference” prohibits an employer from discriminating or retaliating against an employee or prospective employee for having exercised or attempted to exercise CFRA rights or giving information or testimony regarding the employee's CFRA leave, or another person's CFRA leave, in any inquiry or proceeding related to any right guaranteed under this article. For example, if an employee on leave without pay would otherwise be entitled to full benefits (other than health benefits), the same benefits would be required to be provided to an employee on unpaid CFRA leave. By the same token, employers cannot use the taking of CFRA leave as a negative factor in employment actions, such as hiring, promotions or disciplinary actions; nor can CFRA leave be counted against an employee under an employer's attendance policies. . .”  (Code Regs. tit. 2, § 11094.)

Plaintiff alleged Defendant was covered under the CFRA and that Plaintiff was eligible to take CFRA leave based on working for Defendant for over one-year and over 1250 hours in the year prior to requesting the medical leave.  (FAC ¶¶ 3-8, 91, 94.)  Plaintiff requested and received a leave of absence in March 2020 to care for his child until “Defendant forced Plaintiff to return in-person on or about May 2020.”  (FAC ¶¶ 7-8.)  Although specific dates were not provided, if Plaintiff’s leave began the first of March and ended the last week of May, Plaintiff would have been allocated the 12-weeks permitted under Gov’t. Code § 12945.2.  However, Plaintiff alleges that upon return from leave, he was subjected to discriminatory and harassing treatment due to the leave.  (FAC ¶¶ 9, 95-96, 99.)  He was treated differently, received verbal harassment and ridicule, was denied a promotion, had a change and lessening of job responsibilities, was deprived of overtime hours, and was written-up.  (FAC ¶¶ 10, 99.)  Finally, Plaintiff was constructively terminated.  (FAC ¶ 99.)

Plaintiff has pled sufficient facts to support this COA.  The Demurrer is OVERRULED as to this COA.

8)       COA No. 8 – Unlawful Business Practices, Cal. Bus. Prof. Code §§ 17200-17208

Defendant’s arguments here are the same as with COA No. 4.  Defendant merely argues this COA is derivative of the other statutory claims and must fail as without actionable discrimination and/or retaliation, there can be no failure to prevent.  However, as noted above, Plaintiff has pled sufficient facts to support the discrimination and relation COA at this stage.  Therefore, Defendant’s failure to prevent those acts is also sufficiently pled.  (FAC ¶¶ 104-110.)

The Demurrer is OVERRULED as to this COA.

B)        Motion to Strike

Defendant’s Motion to Strike (“MTS”) is GRANTED in part and MOOT in part.

Granted as to FAC ¶¶ 36, 52, 74, 88, and Prayer No. 3.

Moot as to FAC ¶ 78.

Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof. . .”  (Civ. Proc. Code § 435(b)(1).)

“The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading.”  (Civ. Proc. Code § 436(a).)

The MTS is MOOT as to FAC ¶ 78 as that COA was successfully demurred to (supra).

FAC ¶¶ 36, 52, 74, 88, and Prayer No. 3 all relate to claims for punitive damages.  In order to properly plead punitive damages claims, allegations must rise to the standards and/or requirements laid out in Civ. Code § 3294:

“(a) In 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.

. . .

(c) As used in this section, the following definitions shall apply:

1) “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.

2) “Oppression” means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.

3) “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.)

“Not only must there be circumstances of oppression, fraud or malice, but facts must be alleged in the pleading to support such a claim.” (Grieves v. Superior Court, 157 Cal. App. 3d 159, 166 (Ct. App. 1984).)

It is not sufficient to allege merely that a defendant “acted with oppression, fraud or malice.”  A plaintiff must allege specific facts showing that defendant’s conduct was oppressive.  (Smith v. Sup.Ct. (Bucher) (1992) 10 Cal.App.4th 1033, 1041-1042; Anschutz Entertainment Group, Inc. v. Snepp (2009) 171 Cal.App.4th 598, 643.) 

“Despicable conduct” is conduct that is so “vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people.”  (Scott v. Phoenix Schools, Inc. (2009) 175 Cal.App.4th 702, 715.) 

“[F]raud must be pled specifically; general and conclusory allegations do not suffice.”  (Lazar v. Superior Ct. (1996) 12 Cal. 4th 631, 645.) 

In support of the requests for punitive damages, Plaintiff’s opposition cites to FAC ¶¶ 7-13, 15-21, and 99.  While the acts alleged may support the various COA as noted in the Demurrer, they do not raise to the requisite level of malice, oppression, or fraud to support punitive damages.  There are no allegations of despicable conduct or conduct intended to cause Plaintiff injury, there are no allegations of Defendant subjecting Plaintiff to cruel and unjust hardships with a willful and conscious disregard of Plaintiff’s rights or safety of others, and there are no allegations of fraudulent acts on the part of Defendant. 

Plaintiff has pled little more than general torts, which is not sufficient to support punitive damages.  “‘Something more than the mere commission of a tort is always required for punitive damages. There must be circumstances of aggravation or outrage, such as spite or “malice,” or a fraudulent or evil motive on the part of the defendant, or such a conscious and deliberate disregard of the interests of others that his conduct may be called wilful or wanton.”  (Scott v. Phoenix Sch., Inc. (2009) 175 Cal. App. 4th 702, 716.)

As Plaintiff’s allegations are not sufficient to support punitive damages, the MTS is GRANTED as to FAC ¶¶ 36, 52, 74, 88, and Prayer No. 3.

Plaintiff is given leave to file an amended complaint within 15-days of written notice of the court’s ruling.

Defendant to give notice.