Judge: Upinder S. Kalra, Case: 22STCV12903, Date: 2022-12-05 Tentative Ruling

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Case Number: 22STCV12903    Hearing Date: December 5, 2022    Dept: 51

Tentative Ruling

Judge Upinder S. Kalra, Department 51

HEARING DATE:   December 5, 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, and eight causes of action

TENTATIVE RULING:

1.      Demurrer as to the 1^st, 2^nd, 3^rd, 4^th, 5^th, 6^th, and 8^th causes of action is SUSTAINED, with 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, which was SUSTAINED, with leave to amend.

On September 26, 2022, Plaintiff filed a First Amended Complaint.

On November 4, 2022, Defendant field the current Demurrer. Plaintiff’s Opposition was filed on November 18, 2022. Defendant’s reply was filed on November 28, 2022.  

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:

Meet and Confer:

Prior to filing a demurrer, the demurring party is required to satisfy their meet and confer obligations pursuant to Code of Civ. Proc. §430.41, and demonstrate that they so satisfied their meet and confer obligation by submitting a declaration pursuant to Code of Civ. Proc. §430.41(a)(2) & (3). The Declaration of Katherine L Handy indicates that the parties emailed on October 21, 2022, to discuss a time to meet and confer over the phone. However, Plaintiff’s counsel indicated that she was unable to meet and confer telephonically and requested it be done via email. The parties then emailed and discussed the claims on which the demurrer is based. The parties were unable to resolve the issues. (Dec. Handy ¶ 2-3.)

Demurrer:

Defendant demurrers on the ground that seven of the 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. The allegations in the FAC are conclusory; Plaintiff alleges a temporary mental and physical disability, which required hospitalization, and Plaintiff also suffered a “temporary psychosis and need for continued physical and mental care.” (FAC ¶ 32.) Also, Defendant argues that the FAC does not state facts that indicate Plaintiff informed Defendant of the disability. Further, Defendant contends that Plaintiff did not allege a causal connection between the disability and his termination. (Demurrer 6: 3-4.)

Plaintiff contends the disabilities pled in the FAC are sufficient, stating that he suffered “from a medical emergency after being unknowingly exposed to methamphetamines, causing him to experience temporary psychosis.” (FAC ¶ 9.) This hospitalization is sufficient for a physical disability because it affected the Plaintiff neurologically. (Opp. 45: 1-4.) Additionally, the FAC sufficiently states that Plaintiff suffered flu-like symptoms and later tested positive for strep-throat on Friday, December 10, 2021, after which Plaintiff’s doctor told Plaintiff that he could return to work on Tuesday December 14, 2021. (FAC ¶ 24.)

“[A] plaintiff alleging disability discrimination can establish the requisite employer intent to discriminate by proving (1) the employer knew that plaintiff had a physical condition that limited a major life activity, or perceived him to have such a condition, and (2) the plaintiff's actual or perceived physical condition was a substantial motivating reason for the defendant's decision to subject the plaintiff to an adverse employment action.” (Glynn v. Superior Court (2019) 42 Cal.App.5th 47, 53.)

FEHA describes a physical disability as having a “physiological disease, disorder, condition, cosmetic disfigurement, or anatomical loss 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, or limits a major life activity.” (Gov. Code, § 12926(m)).

The FAC states the following: Paragraph 9 provides that Plaintiff had a medical emergency and was in the hospital after unknowingly being exposed to methamphetamines, causing temporary psychosis. Paragraphs 10 and 11 indicate that Plaintiff informed his supervisor of the medical incident, requesting temporary time off. Plaintiff’s doctor then instructed Plaintiff to not work until November 12, 2021. (FAC ¶ 12.) After this hospitalization and time off, the FAC states that Plaintiff was told that he may be terminated. (FAC ¶ 16.) In December 2021, Plaintiff suffered from flu-like symptoms, thinking he had Covid-19. He went to the emergency room. (FAC ¶ 21.) Plaintiff tested positive for strep throat on December 10^th and returned to work on the 14^th, and later was terminated on December 16^th. (FAC ¶ 24-26.)

The complaint sufficiently alleges that Plaintiff was hospitalized, and this prevented him from working, impacting a major life activity. Additionally, Plaintiff has sufficiently demonstrated a causal connection between taking time off and later being terminated. (FAC ¶ 16, 25, 26.) However, Plaintiff again fails to allege facts, not mere conclusory allegations, that these two separate and discrete incidents resulted in Plaintiff suffering from a mental disability or physical disability or both and if so, how. Moreover, conditions allege to be mild, which have little or no residual effects, like a common cold or flu are not disabilities. (See Cal. Code Regs. tit. 2, § 11065 (d)(9)(B).) As currently alleged, the duration of the of the incidents suggest that the nature, extent and severity of the two conditions are akin to such mild, non-disabilities. Clearly, there are no allegations that the conditions were unresolved, chronic or re-occurring. The Court will note the absence of authority on the issue of “duration” in assessing the adequacy of pleadings. However, there must be some baseline. Otherwise, this could lead to “ ‘absurd’ results: ‘every citizen in California who suffered from a cold, the flu, or the degree of stress or depression that most employees in the workplace experience would be ‘disabled’ under the FEHA.’ ” (Featherstone v. S. California Permanente Med. Grp. (2017) 10 Cal. App. 5th 1150, 1161 Fn. 5.)

The FAC only states that this affected the neurological, immunological, cardiovascular, and muscular body systems. While a demurrer need not allege all the facts, it must allege the ultimate facts; here the allegations that Plaintiff’s various bodily systems were affected in conclusory and does not plead the ultimate facts.

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, Defendant argues that the Plaintiff fails to allege that he engaged in the interactive process, only requesting temporary leave. (Demurrer 7: 10-12; FAC ¶ 45.)

Plaintiff argues that the Court already determined that Plaintiff informed Defendant of his need for accommodations. As for the interactive process, Plaintiff informed Defendant that he needed temporary leave, an accommodation; when Plaintiff informed Defendant, the interactive process was triggered. (FAC ¶¶ 11-15, 21, 24.)

“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. Initially, Plaintiff has failed to allege that he suffered from a disability. Even still, Plaintiff fails to allege any facts that Defendant denied his request for time off. In fact, the FAC states that he provided doctor’s notes to Defendant, indicating that he would return on December 14^th, and then returned on December 14^th.  

As for the failure to engage in the interactive process claim, Plaintiff has sufficiently alleged some facts for a cause of action. Plaintiff requested an accommodation, that he could work from home temporarily. (FAC ¶ 58.) Plaintiff was willing to participate in the interactive process. (Id.) And Defendant failed to participate in this process, denying Plaintiff’s request and did not engage in the interactive process. (FAC ¶ 60.) However, as discussed above, Plaintiff has failed to sufficiently plead a temporary disability.

Demurrer as to the Second Cause of Action is SUSTAINED. Demurrer to the Third Cause 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. Defendant argues that while Plaintiff states that as of November 11, 2021, he had worked for at least 12 months, this establishes that the October/November absences do not qualify for CFRA relief. (Demurrer 8: 15-21; FAC ¶ 68.) As for the claim in December 2021, Plaintiff did not allege a serious health condition that is required under CFRA to qualify for leave. (FAC ¶ 69-70.) Though the FAC states that Plaintiff suffered from flu-like symptoms, it only states that he was positive for strep throat, not Covid-19. (FAC ¶ 24.) Lastly, the complaint does not allege Plaintiff informed Defendant of his serious health condition or need for CFRA leave. (Demurrer 9: 14-16.)

Plaintiff argues that this cause of action is sufficient because the FAC states that

As for the December 2021 allegations, Plaintiff argues that Covid-19 symptoms were severe that it required an emergency room visit. Additionally, he was diagnosed with strep throat, “which requires an antibiotic regimen and continuing treatment.” (Opp. 11: 3-6, quoting to the FAC ¶¶ 21, 24.)

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.)

Under CFRA, as stated above, an employee must work at least 12 months to be entitled for CFRA leave rights. Here, the FAC alleges that he began to work for Defendant on November 11, 2020 (FAC ¶ 7), and the medical emergency occurred in October 23, 2021 (FAC ¶ 9.) When the Plaintiff spoke with Defendant in November 2021, the medical emergency was based on the October 2021 conditions. Thus, the complaint does not allege that Plaintiff worked for Defendant for the required 12 months to qualify for CFRA.

As for the December 7, 2021, allegations, the FAC states that he was suffering “flu-like symptoms” which later turned out to be strep-throat. While Covid-19 is and can be a serious injury, the FAC does not indicate that Plaintiff tested positive for Covid-19, but states that he was diagnosed with strep-throat and returned to work after his doctor authorized him to do so December 14, 2021, “based on his symptomology and test results.” (FAC ¶ 24.) Additionally, Plaintiff’s reference to the antibiotic regimen and continuing treatment in the Opposition is nowhere in the FAC. This is insufficient to be considered a serious health condition as required under Gov’t Code § 12495.2.

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. (FAC ¶ 81.) However, Defendant argues that the facts are insufficient to establish that Plaintiff had rights under CFRA, specifically that he suffered from a qualifying disability that was causally related to his termination. (Demurrer 10: 10-12.)

 Plaintiff argues that the FAC sufficiently pleads a retaliation claim because he was threatened with termination, given a bad performance review, and terminated. Plaintiff then provides paragraphs 13, 14, 25, and 26 of the FAC. Additionally, Plaintiff alleges he was terminated because he took CFRA leave. (FAC ¶ 18-19.)

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. Plaintiff argues that because he has established his FEHA claim, this claim for failure to prevent discrimination is sufficiently pled.

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 sufficiently establish a disability cause of action. Thus, this claim does not survive.

Demurrer as to the Sixth Cause of Action is SUSTAINED.

6.      Wrongful termination in Violation of Public Policy

Defendant argues that because the wrongful termination claim is based on the claims under 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. 14:8-12, citing to Nosal-Tabor v. Sharp Chula Vista Med. Ctr. (2015) 239 Cal. App. 4th 1224, 1234-1235). Plaintiff argues that he has sufficiently pled these elements.

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 (FAC ¶ 7) and Plaintiff was terminated (Complaint ¶ 26), 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:

1.      Demurrer as to the causes of action 1-6, and 8 is SUSTAINED, with leave to amend.

Moving party is to give notice.

IT IS SO ORDERED.

Dated:             December 5, 2022                   _________________________________                                                                                                                  Upinder S. Kalra

                                                                                    Judge of the Superior Court