Judge: Thomas S. Mcconville, Case: 2022-01239251, Date: 2023-07-17 Tentative Ruling
Defendant Electronic Waveform Lab, Inc.’s (defendant) demurrer to second amended complaint is OVERRULED in its entirety.
Defendant shall answer the second amended complaint (SAC) within 10 days of the date of this hearing.
1st cause of action for disability discrimination. The SAC states facts sufficient to constitute this cause of action. (See Zamora v. Security Industry Specialists, Inc. (2021) 71 Cal.App.5th 1, 31-32 [elements]; see also SAC ¶¶ 10-28, 31-43.)
To the extent defendant contends the claim is barred by workers’ compensation exclusivity, the exclusive remedy provisions of the California Workers’ Compensation Act do not preempt FEHA claims even as to work-related disabilities. (See City of Moorpark v. Superior Court (1998) 18 Cal.4th 1143, 1156; Shirvanyan v. Los Angeles Community College District (2020) 59 Cal.App.5th 82, 106.)
To the extent defendant attempts to argue the claim is barred by res judicata based on plaintiff Monique Melendez’s (plaintiff) workers’ compensation claim and the settlement thereof (see Notice of Dem. at p. 2 [“res judicata”]; see also Dem. P&As at pp. 2-7; RJN at Exs. 2-3), defendant fails to provide any argument or citation to authority on this point, and the objection is therefore deemed waived. Res judicata does not automatically apply just because defendant has decided to use that term and concluded that it does. (See People v. Lee (2008) 161 Cal.App.4th 124, 130 [“It is not the court’s function to marshal evidence for the parties or to make tactical judgments about how the parties should present their arguments.”]; Walters v. Boosinger (2016) 2 Cal.App.5th 421, 433, fn. 16.)
Further, even if defendant had properly raised res judicata/collateral estoppel, the facts alleged in the SAC and the judicially noticed documents do not show that plaintiff’s FEHA claims are so barred. (See SAC ¶¶ 27, 30; RJN at Exs. 2, 3.) Plaintiff’s workers’ compensation claim did not allege or include any claims under FEHA, either for discrimination or otherwise. (See RJN at Ex. 2.) And, importantly, the parties’ workers’ compensation settlement agreement repeatedly states that it covers claims “within the jurisdiction of WCAB [Workers’ Compensation Appeals Board] only and has no effect on pending civil claims.” (RJN at Ex. 3; SAC ¶ 27.)
“Even as to claims that might otherwise be barred, ‘ “parties may by agreement limit the legal effect of a dismissal with prejudice so that it would not constitute a retraxit and affect their rights in a later pending action.” ’ [Citation.] [¶] Where a settlement agreement expressly excludes certain claims, the resulting dismissal does not preclude further litigation on the excluded claim.” (Kim v. Reins International California, Inc. (2020) 9 Cal.5th 73, 91-92.)
Thus, pursuant to the explicit terms of the parties’ workers’ compensation settlement agreement, it “has no effect” on plaintiff’s “pending civil claims.” (RJN at Ex. 3.) This includes plaintiff’s FEHA claims in this action, which were “pending” at the time she entered into the workers’ compensation settlement agreement on 8/4/21, as plaintiff had already filed her complaint with respect to these claims with the Department of Fair Employment and Housing (DFEH) by no later than 1/11/21. (See RJN at Ex. 3 [workers’ compensation compromise and release dated 8/4/21]; Compl. ¶¶ 27, 30.)
Next, defendant fails to show judicial estoppel bars this claim. The mere fact that plaintiff may have received disability benefits for a certain period of time does not show that she was, at all relevant times, incapable of performing the essential duties of the job with or without accommodations. (See SAC ¶¶ 15-24, 26-27.) A demurrer does not lie to a portion of a cause of action; it must dispose of an entire cause of action to be sustained. (Fremont Indem. Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119 (Fremont); PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1682.)
Finally, defendant also argues that “Plaintiff’s stress and anxiety is not a qualifying disability under the FEHA.” (Dem. P&As at p. 5.) As the court specifically noted in its ruling on defendant’s demurrer to the prior version of the complaint, this does not state a ground for demurrer, because it does not address the entire cause of action. The disability discrimination claim is not solely based on plaintiff’s stress and anxiety, it is also based on her physical disabilities. (See SAC ¶¶ 24-26, 31.) Thus, the claim remains standing, whether or not plaintiff’s alleged stress and anxiety qualifies as a “disability” under FEHA. Again, a demurrer must dispose of an entire cause of action to be sustained. (Fremont, supra, 148 Cal.App.4th at p. 119.)
2nd cause of action for failure to accommodate. The SAC states facts sufficient to constitute this cause of action. (See Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1009-1010 (Scotch) [elements]; see also SAC ¶¶ 15-28, 47-54.)
To the extent defendant contends this cause of action fails for the same reasons as the first cause of action for discrimination, those arguments fail for the same reasons discussed above.
Contrary to defendant’s contentions, the SAC does in fact allege facts showing plaintiff requested at least one specific accommodation (reduced workload/workload comparable to others in a similar position) on more than one occasion that was repeatedly refused (and sometimes met with retaliation in the form of an increased workload). (See, e.g., SAC ¶¶ 15-28, 47-54, particularly ¶¶ 16, 20-23, 26.)
Further, the mere fact that defendant accommodated plaintiff’s disability on a single occasion does not defeat the claim. (See Scotch, supra, 173 Cal.App.4th at p. 1013 [once the employer is aware of the need to consider an accommodation, the employer’s obligation to engage in the process in good faith is continuous, and extends beyond the first attempt at accommodation]; Cal. Code Regs., tit. 2, § 11068(a) [affirmative duty to make reasonable accommodations]; see also, e.g., SAC ¶¶ 16, 20-23, 26-28.)
3rd cause of action for failure to engage in interactive process. The SAC states facts sufficient to constitute this cause of action. (See Gov. Code, § 12940, subd. (n); see also SAC ¶¶ 15-28, 62-69.)
Again, the mere fact that defendant accommodated plaintiff’s disability on a single occasion does not defeat the claim. (See Scotch, supra, 173 Cal.App.4th at p. 1013 [“Once the interactive process is initiated, the employer’s obligation to engage in the process in good faith is continuous.”]; Swanson v. Morongo Unified School Dist. (2014) 232 Cal.App.4th 954, 971-972; see also, e.g., SAC ¶¶ 16, 20-23, 26-28.)
4th cause of action for failure to prevent discrimination. Defendant contends this claim fails because its predicate claim for discrimination fails. (Dem. P&As at pp. 10-11; see Caldera v. Department of Corrections and Rehabilitation (2018) 25 Cal.App.5th 31, 43-44 [elements of failure to prevent include, inter alia, the underlying claim for discrimination].) As discussed above, the SAC adequately states a claim for disability discrimination.
5th cause of action for retaliation (Gov. Code, § 12940, subd. (h)). The SAC states facts sufficient to constitute this cause of action. (See Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042 [elements]; see also SAC ¶¶ 14-29, 85-89.)
To the extent defendant contends the fifth cause of action for retaliation fails on the same grounds as the first four causes of action, defendant’s arguments fail for the same reason discussed above.
Whether plaintiff has or has not adequately alleged an association with her disabled mother, Brenda Cervantes, does not subject this cause of action to demurrer because it is also based on other instances of protected activity. (See, e.g., SAC ¶¶ 77-78; Gov. Code, § 12940, subd. (m)(2) [prohibiting retaliation against an employee for requesting an accommodation].) The same is true with respect to the fact that plaintiff resigned, because this cause of action is also based on other adverse employment actions as well, the sufficiency of which defendant fails to address or dispute. (See, e.g., SAC ¶¶ 16-26.) Again, a demurrer must dispose of an entire cause of action to be sustained. (Fremont, supra, 148 Cal.App.4th at p. 119.)
Furthermore, the SAC does not show plaintiff resigned “voluntarily.” Rather, plaintiff alleges she was constructively discharged—i.e., forced to resign due to intolerable working conditions and in order to obtain her workers’ compensation benefits. (See SAC ¶¶ 13-28; Turner v. Anheuser–Busch, Inc. (1994) 7 Cal.4th 1238, 1244-1245 (Turner) [constructive discharge]; see also Valdez v. City of Los Angeles (1991) 231 Cal.App.3d 1043, 1056 [whether conditions were so intolerable as to justify a reasonable employee’s decision to resign is normally a question of fact].)
Here, the SAC alleges that despite plaintiff’s multiple complaints of discrimination and retaliation, and the fact that defendant was on notice of her mental and physical disabilities, defendant only further discriminated and retaliated against her by, inter alia, assigning her unreasonable workloads that only continued to increase with every complaint she made. (See SAC ¶¶ 11-28.) Ultimately, defendant granted plaintiff an accommodation in the form of disability leave, but then apparently further retaliated/discriminated against her for taking that leave and for requesting a further accommodation when she returned to work with restrictions, by refusing to engage in the interactive process at all, and refusing to allow her to return unless “she returned to work with full productive capacity without restrictions or the need for accommodations.” (Id. ¶¶ 24-28, 88.)
In other words, the allegations of the SAC show the discrimination and retaliation only continued, and that the only choice defendant left plaintiff with was to resign. (Id. ¶¶ 26-28; see New Livable California v. Association of Bay Area Governments (2020) 59 Cal.App.5th 709, 714 [on demurrer, the court accepts as true all facts properly pleaded, as well as those which reasonably arise by implication].)
This is sufficient to show defendant intentionally created or knowingly permitted a continuous, intolerable pattern of discrimination and retaliation “at the time of the employee’s resignation that a reasonable employer would realize that a reasonable person in the employee’s position would be compelled to resign,” at least at this pleading stage. (See Turner, supra, 7 Cal.4th at p. 1251; Brome v. California Highway Patrol (2020) 44 Cal.App.5th 786, 801-802 [“Each individual incident need not be sufficient standing alone to force a resignation; rather, the accumulation of discriminatory treatment over time can amount to intolerable working conditions.”].)
6th cause of action for wrongful termination. The SAC states facts sufficient to constitute this cause of action. As discussed above, the SAC adequately alleges defendant constructively discharged plaintiff. A constructive discharge is sufficient to support a claim for wrongful termination in violation of public policy. (Turner, supra, 7 Cal.4th at p. 1252; Colores v. Board of Trustees (2003) 105 Cal.App.4th 1293, 1306; see Yau v. Allen (2014) 229 Cal.App.4th 144, 154 [elements of a cause of action for wrongful termination]; see also SAC ¶¶ 13-28, 88, 92-100.)
7th cause of action for violation of Business and Professions Code section 17200 et seq. (UCL). Defendant contends this claim fails because all of its predicate claims fail. (Dem. P&As at pp. 14-15.) As discussed above, the SAC states facts sufficient to constitute each of its predicate claims.
Request for judicial notice. Defendant’s request for judicial notice is GRANTED. (See Evid. Code, § 452, subds. (d), (h); Lake v. Lakewood Chiropractic Center (1993) 20 Cal.App.4th 47, 53 [workers’ compensation records].)
Defendant shall give notice.