Judge: Upinder S. Kalra, Case: 22STCV12903, Date: 2022-09-06 Tentative Ruling
Case Number: 22STCV12903 Hearing Date: September 6, 2022 Dept: 51
Tentative Ruling
Judge Upinder S.
Kalra, Department 51
HEARING DATE: September
6, 2022
CASE NAME: Ronaldo Diaz v. Southwestern
Industries, Inc.,
CASE NO.: 22STCV12903
DEFENDANT’S
DEMURRER WITHOUT MOTION TO STRIKE
MOVING PARTY: Defendant
RESPONDING PARTY(S): Plaintiff Ronaldo Diaz
REQUESTED RELIEF:
1.
An order sustaining the demurrer as to the
first, second, third, fourth, fifth, sixth, seventh, and eight causes
of action
TENTATIVE RULING:
1. Demurrer
as to the First and Sixth Causes of Action are OVERRULED.
2. Demurrer
as to the Second, Fourth, Fifth, and Seventh Causes of Action are SUSTAINED,
with leave to amend.
3. Demurrer
as to the Third and Fourth Causes of Action are SUSTAINED, without leave to
amend.
STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:
On April 18, 2022, Plaintiff Ronaldo Diaz (“Plaintiff”)
filed a complaint against Defendant Southwestern Industries, Inc.
(“Defendant.”) The complaint alleged eight causes of action: (1) Disability
Discrimination in Violation of FEHA, (2) Failure to Accommodate in Violation of
FEHA, (3) Failure to Engage in the Interactive Process, (4) Interference
Violation of CFRA, (5) Retaliation in Violation of FEHA and CFRA, (6) Failure
to Prevent Harassment, Discrimination, and/or Retaliation, (7) Violation of
Lab. Code §§ 233-234, and (8) Wrongful Termination in Violation of Public
Policy. Plaintiff alleges that after being hospitalized for a medical emergency
and potentially contracting covid, Defendant wrongfully terminated based on a
violating company policy.
On May 23, 2022, Defendant filed a Demurrer without a Motion
to Strike. Plaintiff’s opposition was filed on August 23, 2022. Defendant’s
reply was filed on August 29, 2022.
Meet and Confer:
The Declaration of Katherine Handy provides that she spoke
with Plaintiff’s counsel on May 13, 2022, about the demurrer. They were unable
to reach a resolution. (Dec. Handy, ¶ 2-3.)
Service:
The Proof of Service attached to Defendant’s demurrer
indicates that Plaintiff’s counsel was served via U.S. mail. The proof service
attached to Defendant’s reply as well as Plaintiff’s opposition indicate that
these documents were served 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 demurrers on the ground that all eight causes of
action fail to state facts sufficient to constitute a cause of action and are
fatally uncertain.
1.
Disability
Discrimination in Violation of FEHA
Defendant contends that Plaintiff
did not sufficiently plead facts that he suffered from a disability, an even if
he did suffer from a disability, he failed to allege a causal connection
between the disability and his termination.
A physical disability for purposes
of FEHA claims includes, but is not limited to, a physiological condition that
affects one or more of the following body systems: neurological, immunological, musculoskeletal, special sense
organs, respiratory, including speech organs, cardiovascular, reproductive,
digestive, genitourinary, hemic and lymphatic, skin, and endocrine;
and, that limits a major life activity. (Govt. Code § 12926(m)(A) and (2)(B). Working is a major life activity. (Gov. Code,
§ 12926(m)(1)(iii).)
A close examination of the Complaint
reveals the following allegations: Paragraph 9 provides that Plaintiff had a
medical emergency and, as a result, was hospitalized. Paragraph 10 adds that Plaintiff
was unable to work, as instructed by his doctor, until November 12, 2021. Paragraph
12 states that on November 19, 2021, his annual review warned him that medical
leave was considered in evaluating in assessing violations of the excessive
absenteeism policy. Paragraph 14 alleges
that Plaintiff suffered flu-like symptoms, so consulted with his doctor fearing
a Covid infection. He was tested and put
on leave until December 22, 2021. Paragraphs 15-16 alleges that after Defendants
demanded that Plaintiff return to work before
December 22, 2021, so he returned on December 14, 2021. Paragraph 17 concludes
that on December 16, 2021, he was terminated for “ ‘violating company policy of
[more than] 5 days in a 12-month period’ by being ‘out 6 additional sick days
after his review.’ ”
The Complaint sufficiently alleges
that Plaintiff’s hospitalization and time off prevented him from working and
thus impacted a major life activity. It
also alleged a causal connection as he
was reprimanded for taking leave, threatened with termination, and eventually
terminated. (Complaint ¶¶ 11, 12, 17.) However, it does not sufficiently allege
the condition was a physical disability in that there are no facts alleging the impact on a body system.
Demurrer as to the First Cause of
Action is SUSTAINED.
2.
Failure
to Accommodate in Violation of FEHA and Failure to Engage in the Interactive
Process
Defendant contends that these two
causes of action fail. Plaintiff initially did not sufficiently plead a
disability. Additionally, Plaintiff did not allege that he requested a
reasonable accommodation or that he was denied such a request. Because Plaintiff
did not request or inform Defendant of his disability or an accommodation, the
“interactive process was never triggered.” (Motion 11: 20-24.) Plaintiff argues
that the complaint sufficiently pleads this cause of action because Plaintiff
requested temporary leave as an accommodation. (Complaint ¶ 32.) As for the
interactive process, Plaintiff informed Defendant that he would be off work due
to a medical emergency per doctor’s orders; when Plaintiff informed Defendant,
the interactive process was triggered.
“To establish a failure to
accommodate claim, [a plaintiff] must show (1) she has a disability covered by
FEHA; 2) she can perform the essential functions of the position; and 3) [defendant]
failed reasonably to accommodate her disability.” (Brown v. Los Angeles Unified School District (2021) 60 Cal.App.5th
1092, 1107.)
In order to establish a claim that an
employer failed to engage in the interactive process, a plaintiff must show
that (1) the plaintiff requested the employer make a reasonable accommodation;
(2) the plaintiff was willing to participate in an interactive process to
determine whether a reasonable accommodation could be made; and (3) the
employer failed to participate in a timely and good-faith interactive process
with the plaintiff to determine whether a reasonable accommodation could be
made. Govt. Code § 12940(n);
CACI No. 2546. But if an employee does not need or request an
accommodation, there can be no violation of the duty to engage in the
interactive process or to accommodate. Prilliman v. United Air Lines, Inc. (1997) 53 Cal.App.4th
935, 954.
Plaintiff
has not sufficiently pled the elements for both failure to accommodate and
failure to engage in the interactive process. Plaintiff makes conclusory
allegations that he could perform the essential duties of his position. A demurrer
must allege ultimate facts; Plaintiff has failed to allege the facts to support
this conclusory allegation. As such, Plaintiff has failed to plead the required
elements for failure to accommodate.
As for the
failure to engage in the interactive process claim, Plaintiff has failed to
sufficiently allege facts that he requested an accommodation. In the complaint,
Plaintiff states that he informed the Defendant that he would be taking work
off due to a medical emergency as well as after a potential Covid-19 infection.
(Complaint ¶¶ 9, 14.) However, the Plaintiff does not allege facts that he
requested temporary leave, but rather makes conclusory allegations based on the
required elements. Thus, Plaintiff has failed to plead the required elements
for failure to engage in the interactive process claim.
Demurrer as
to the Second and Third Causes of Action is SUSTAINED.
3.
Interference
Violation of CFRA
Defendant contends that the
complaint does not allege facts that would entitle him to CFRA leave rights;
under CFRA, an employee must have worked for 12 months, but the Plaintiff did not
allege that he was employed for longer than 12 months prior to his absence. As
for the claim in December 2021, Plaintiff did not allege a serious health
condition that is required under CFRA to qualify for leave. Lastly, the complaint
does not allege Plaintiff informed Defendant of his need for CFRA leave. (Opp.
9: 13-15.)
Under California Government Code §
12945.2, it is unlawful for an employer “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.”
“Grounds for leave include family needs such as the birth or adoption of a
child, serious illness of a family member and “an employee's own serious health
condition” when that condition “makes the employee unable to perform the
functions of the position of that employee....” (Moore v. Regents of University of California (2016) 248 Cal.App.4th
216, 233.) Further, “a CFRA interference claim “consists of the following
elements: 1) the employee's entitlement to CFRA leave rights; and (2) the
employer's interference with or denial of those rights.” (Id. at 250.)
Here, the Complaint alleges that
he began to work for Defendant on November 11, 2020 (Complaint ¶ 7), and the
medical emergency occurred in October 23, 2021 (Complaint ¶ 9.) Thus, the
complaint does not allege that Plaintiff worked for Defendant for the required
12 months or 1,250 hours. As for the December 7, 2021 allegations, the
Complaint states that he was suffering “flu-like symptoms.” While Covid-19 is
and can be a serious injury, the Complaint later states that he returned to
work after his doctor authorized him to do so December 14, 2021, “based on his
symptomology and test results.” This is insufficient to be considered a serious
health condition as required under Gov’t Code § 12995.2.
Demurrer as to the Fourth Cause of
Action is SUSTAINED.
4.
Retaliation
in Violation of FEHA and CFRA
Defendant argues that Plaintiff’s
retaliation claim is conclusory; the complaint is conclusory that he qualified
for CFRA or FEHA. However, the facts are insufficient to establish that
Plaintiff had rights under CFRA, specifically that he suffered from a
qualifying disability – a serious health condition.
To state a claim for retaliation under
FEHA, a plaintiff must show that (1) the plaintiff engaged in a FEHA-protected
activity, (2) the plaintiff was subject to an adverse employment action, and
(3) there is a causal link between the protected activity and the adverse
employment action. (Yanowitz¿v.¿L’Oreal¿USA,
Inc.¿(2005) 36 Cal.4th 1028, 1042.)¿The protected activity may be
established by the fact the plaintiff threatened to file a discrimination
charge, that the plaintiff reasonably and sincerely believed he or she was
opposing discrimination, or that the employer knew the employee was opposing
the employer at the time of the retaliation. (Id. at 1046-48;¿see¿also¿Iwekaogwu¿v.
City of Los Angeles¿(1999)
75 Cal.App.4th 803, 814-15;¿Flait¿v.
North American Watch Corp.¿(1992) 3 Cal.App.4th 467, 477.)
To establish a claim for
Retaliation under CFRA, the Plaintiff must demonstrate “(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.” (Dudley v.
Department of Transp. (2001) 90 Cal.App.4th 255, 261).
Because Plaintiff has failed to establish
that he was covered under CFRA, as in the fourth cause of action, this claim
also fails. For a retaliation claim under CFRA, a plaintiff must establish that
he or she was entitled to CFRA leave. Here, the complaint does not do so.
Demurrer as
to the Fifth Cause of Action is SUSTAINED.
5.
Failure
to Prevent Harassment, Discrimination, and/or Retaliation
Defendant argues that because the
claim for disability discrimination fails this claim fails too.
To state a claim for the failure
to prevent discrimination, harassment, and retaliation, a plaintiff
must show that (1) the plaintiff was subjected to discrimination, harassment,
and retaliation, (2) the employer failed to take all reasonable steps
to prevent discrimination, harassment, and retaliation, and (3) the
employer’s failure caused the plaintiff to suffer injury, loss, harm, or
damage. (Lelaind v. City and
County of San Francisco (N.D. Cal. 2008) 576 F.Supp.2d 1079, 1103).
But if the plaintiff cannot establish the underlying discrimination,
harassment, or retaliation, such claim must fail. (Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th
280, 287-89 (there can be no cause of action for a failure
to prevent what did not occur)).
Here,
Plaintiff has failed to allege a disability cause of action. Thus, this claim fails
too.
Demurrer as
to the Sixth Cause of Action is SUSTAINED.
6.
Violation
of Labor Code §§ 233 and 245, et seq.
Defendant contends that the
Plaintiff cannot establish a violation of Labor Code § 233 because the
complaint does not allege that he accrued sufficient sick leave. The complaint
alleges that he took 15 sick days, and he was terminated for violating company
policy. As for Labor Code § 246.5, Defendant argues that Plaintiff cannot state
a claim because there was no private right of action.
Labor Code § 233(a) provides that
“any employer who provides sick leave for employees shall permit an employee to
use in any calendar year the employee's accrued and available sick leave
entitlement, in an amount not less than the sick leave that would be accrued
during six months at the employee's then current rate of entitlement, for the
reasons specified in subdivision (a) of Section 246.5.”
Here, Plaintiff has not
sufficiently pled that he accrued sick leave. Under Labor Code § 233, an
employee is allowed to use sick leave based on the accrued and available leave.
Here, Plaintiff merely states the two different labor codes, §§ 233 and 246.5,
and that Defendant terminated Plaintiff for taking sick leave. However, nowhere
in the complaint does Plaintiff establish that he had accrued sick leave or
what sick leave was available.
Demurrer as to the Seventh Cause
of Action is SUSTAINED.
7.
Wrongful
termination in Violation of Public Policy
Defendant argues that because the wrongful
termination claim is based on the claims under Labor Code § 233, FEHA, and CFRA
and he has failed to establish the previous causes of action, this claim fails.
Plaintiff contends that the above causes of action are sufficiently pled.
Further, Plaintiff asserts that this cause of action survives regardless of the
prior causes of action, under a Tameny claim, where the elements are (1) an
employer-employee relationship, (2) employer terminated employee, and (3) termination
was motivated by violation of public policy. (Opp. 11: 23 – 12:3, citing to Nosal-Tabor v. Sharp Chula Vista Med. Ctr.
(2015) 239 Cal. App. 4th 1224, 1234-1235).
To state a claim for wrongful termination
in violation of public policy, a plaintiff must be able to show that (1) the
plaintiff was employed by the defendant, (2) the defendant discharged the
plaintiff, (3) the violation of public policy was a substantial motivating
reason for the plaintiff’s discharge, and (4) the discharge caused the
plaintiff harm. (Haney v. Aramark
Uniform Services, Inc. (2004) 121 Cal.App.4th 623, 641; CACI 2430).
There are four requirements that a policy must meet in order to support a
wrongful discharge claim: (1) the policy is supported by either constitutional
or statutory provisions; (2) the policy is “public” in that it “inures to the
benefit of the public” and not merely the interests of the individual; (3) the
policy was articulated at the time of the discharge; and (4) the policy is
“fundamental” and “substantial.” (Franklin
v. Monadnock Co. (2007) 151 Cal.App.4th 252, 258). When the
plaintiff cannot establish a violation of the statutory scheme, the claim for
wrongful termination in violation of public policy must fail. (Sequoia Insurance v. Superior Court (1993)
13 Cal.App.4th 1472, 1475). “Public policy is “ ‘ “ ‘that principle of law
which holds that no citizen can lawfully do that which has a tendency to be
injurious to the public or against the public good.” (Diego v. Pilgrim United Church of Christ (2014) 231 Cal.App.4th 913,
922.)
Plaintiff has not sufficiently
alleged wrongful termination. While Plaintiff has established that the
Plaintiff was employed by Defendant (Complaint ¶ 7) and Plaintiff was
terminated (Complaint ¶ 17), the above demonstrates that Plaintiff did not
establish that there was a violation of public policy. Plaintiff did not
establish he engaged in a protected activity by requesting sick leave. Thus,
this cause of action does not survive.
Demurrer as to the Eighth 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.)
The Plaintiff has the
burden of demonstrating that leave to amend should be granted, and that the
defects can be cured by amendment. (“Plaintiff must show in what manner he can
amend his complaint and how that amendment will change the legal effect of his
pleading.” Goodman v. Kennedy (1976)
18 Cal.3d 335, 349). Here, Plaintiff requests leave to amend. There is an
indication that certain causes of action can be amended.
Conclusion:
For
the foregoing reasons, the Court decides the pending motion as follows:
The Demurrer to the entire complaint is sustained with leave
to amend within 20 days of service of this order.
Moving party is to give notice.
IT IS SO ORDERED.
Dated: September
7, 2022 _________________________________ Upinder
S. Kalra
Judge
of the Superior Court