Judge: Upinder S. Kalra, Case: 19STCV10703, Date: 2022-08-16 Tentative Ruling
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Case Number: 19STCV10703 Hearing Date: August 16, 2022 Dept: 51
Tentative Ruling
Judge Upinder S.
Kalra, Department 51
HEARING DATE: August
16, 2022
CASE NAME: Griselda Bonilla, et al. v. One Stop
Internet, Inc
CASE NO.:
DEFENDANT’S
DEMURRER WITHOUT MOTION TO STRIKE
MOVING PARTY: Defendant Alfonso Rodriguez
RESPONDING PARTY(S): Plaintiffs Griselda Bonilla, et
al.
REQUESTED RELIEF:
1. An
order sustaining the demurrer as to the first cause of action
TENTATIVE RULING:
1. Demurrer
is SUSTAINED, with leave to amend.
STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:
On March 28, 2019, Plaintiffs
Griselda Bonilla and Lucero Lopez (“Plaintiffs”) filed a complaint against
Defendants One Stop Internet, Inc., One Stop LLC, Alfonso Rodriguez, Juan
Beltran, and Does 1 through 100. Plaintiffs filed a First Amended Complaint on
September 19, 2019. The FAC alleges 17 causes of action: (1) Actual/Perceived
Disability Harassment, Violation of Cal. Gov Code §§ 12940 et seq., (2)
Actual/Perceived Disability Discrimination, Violation of Cal. Gov Code §§ 12940
et seq., (3) Failure to Engage in the Mandatory Good-Faith Interactive Process,
Cal. Gov. Code § 12940 et. seq., (5) Failure to Accommodate, Cal. Gov. § 12940
et seq., (6) Race/National Original Harassment, Violation of the FEHA, (7) Race/National
Original Discrimination, Violation of FEHA, (8) Race/National Original
Retaliation, Violation of FEHA, (9) Sex/Gender Harassment, Violation of FEHA,
(10) Sex/Gender Discrimination, Violation of FEHA, (11) Sex/Gender Retaliation,
Violation of FEHA, (12) Failure to Pay Overtime Wages in Violation of Cal.
Labor Code § 510 and IWC Wage Order No. 4, (13) Violation of Cal. Bus. &
Prof. Cod §§ 17200 et seq., (14) Whistleblower Violations, Cal. Labor Code §
1102.5, (15) Retaliation and Wrongful Termination in Violation of Public
Policy, (16) Failure to Provide Employee Personnel Files, Violation of Cal.
Labor Code § 432, 1198.5, and (17) Failure to Provide Wage & Hour
Statements, Violation of Cal. Labor Code § 226. The complaint alleges that the Plaintiffs suffered harassment based
on disabilities, need for accommodations and need for medical leave. Plaintiffs
also allege that they were wrongfully terminated by Defendants.
On September 19, 2019, Plaintiff filed
the First Amended Complaint.
On October 11, 2019, Plaintiffs
filed an Amendment to the First Amended Complaint, Fictitious/Incorrect Name,
designating Doe 1 as Branded Online, Inc. Defendant Branded Online, Inc., filed
an Answer on March 3, 2020.
Defendant Alfonso Rodriguez filed a
Demurrer on April 28, 2022. Plaintiff’s Opposition was filed on August 3, 2022.
Defendant’s reply was filed on August 9, 2022.
Meet and Confer:
The Declaration of Jeremy J. Osher indicates that counsel
for both parties engaged in multiple email correspondence as well as telephonic
correspondence. This is sufficient.
Service:
Proof of Service attached to the Demurrer and reply
indicates that Defendant served Plaintiffs’ counsel via email. Proof of Service
attached to the Opposition indicates that Plaintiffs served Defendants’ counsel
via email.
LEGAL STANDARD
A demurrer for sufficiency tests whether
the complaint states a cause of action. Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747. When
considering demurrers, courts read the allegations liberally and in
context. In a demurrer proceeding, the defects must be apparent on the
face of the pleading or via proper judicial notice. Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994;
Weil & Brown, Civ. Pro. Before Trial (The Rutter Group 2011) ¶7:8. “A
demurrer tests the pleadings alone and not the evidence or other extrinsic
matters. Therefore, it lies only where the defects appear on the face of the
pleading or are judicially noticed (Code Civ. Proc., §§ 430.30, 430.70). The
only issue involved in a demurrer hearing is whether the complaint, as it
stands, unconnected with extraneous matters, states a cause of action.” Hahn 147 Cal.App.4th at 747.
ANALYSIS:
Defendant demurs on the grounds
that the First Cause of Action in the First Amended Complaint fails to state
facts sufficient to constitute a cause of action for three reasons: (1) it does
not allege that Defendant knew of the purported disability, (2) it does not
allege specific conduct done by Defendant that relates to Plaintiff’s
disability, and (3) even if these allegations applied to Defendant, the conduct
is not pervasive. (Demurrer at p. 1)
Government Code section 12940,
subdivision (j)(1), in relevant part, (Motprohibits harassment of an employee by an employer “because of race, religious
creed, color, national origin, ancestry, physical disability, mental
disability, medical condition, genetic information, marital status, sex,
gender, gender identity, gender expression, age, sexual orientation, or
military and veteran status.” (Gov. Code § 12940, subd. (j)(1).) The
elements of a cause of action for harassment under FEHA are: 1) plaintiff
belongs to a protected group; (2) plaintiff was subject to harassment; (3) the
harassment complained of was based on the plaintiff’s membership in the
protected group; (4) the harassment complained of was sufficiently pervasive so
as to alter the conditions of employment and create an abusive working
environment; and (5) respondeat superior. (Jones v. Department of Corrections & Rehabilitation (2007)
152 Cal.App.4th 1367, 1377; CACI No. 2521A.)
Here, the complaint fails to allege
that Defendant had knowledge of any disability which is a condition precedent
to establish that harassment, if it occurred, was based upon membership in a
protected group. Plaintiff’s reliance on paragraph 18 of the FAC to cure this deficiency
is misplaced. Paragraph 18d alleges
“Defendants egregiously monitors Plaintiff’s bathroom use…” (FAC ¶ 18d) Even if
true and even if this conduct constitutes pervasive harassment, there is no
allegation that Defendant had knowledge of any disability or that Defendant engaged
in any conduct because of membership in a protected class.
Demurrer as to the First Cause of
Action is SUSTAINED.
Leave to Amend:
Leave to amend should be liberally
granted if there is a reasonable possibility an amendment could cure the
defect. (County of Santa Clara v. Superior Court (2022) 77 Cal.App.5th 1018,1035.)
Plaintiff’s counsel indicates that they will be able to cure defects raised in
this Demurrer. Although Plaintiff has hardly dilatory in prosecuting this case,
the Court will grant ONE opportunity to amend.
Conclusion:
For
the foregoing reasons, the Court decides the pending motion as follows:
Demurrer is
SUSTAINED, with leave to amend by August 31, 2022. Order to Show Cause to make
first amended complaint the operative pleading if no amended complaint is filed
will be held on September 7, 2022 at 11:00 AM.
Moving party is to give notice. Order to Show
IT IS SO ORDERED.
Dated: August
16, 2022 __________________________________ Upinder
S. Kalra
Judge
of the Superior Court