Judge Upinder S. Kalra, Case 22STCV12903 2023-03-09 Tentative Ruling

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1. An order sustaining the demurrer as to the 1^st, 2^nd, 3^rd, 4^th, 5^th, 6^th, and 8^th causes of action.

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, without leave to amend.

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 November 4, 2022, Defendant filed a Demurrer, which was SUSTAINED, with leave to amend.

ON February 7, 2023, Defendant filed the current Demurrer and Motion to Strike. Plaintiff’s Opposition was filed on February 24, 2023. Defendant’s Reply was filed on March 2, 2023.

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.) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. …. 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.)

The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc., § 436(a).) The court may also strike all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Id., § 436(b).) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Id. § 437.) “When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend.” (Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761, 768.)

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 Melanie Rosen indicates that the parties met and conferred telephonically on February 1, 2023, after exchanging emails on January 30, 2023. The parties were unable to resolve the issues.

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.

Defendant contends that Plaintiff did not sufficiently plead facts that he suffered from a disability. The allegations in the SAC are conclusory; Plaintiff alleges a “mental and physical disability stemming from his hospitalization from a life-threatening injuries and the underlying mental and physical health issues that resulted in the hospitalization, including his temporary psychosis and need for continued and ongoing physical and mental care.” (SAC ¶ 35.) Defendant also argues that the SAC does not allege sufficient facts that would constitute a causal connection between his alleged disability and his termination. Moreover, the Defendant argues that Plaintiff failed to properly plead that Defendant was on sufficient notice of his alleged disease.

Plaintiff argues that the cause of action contains sufficient facts that his disability is plausibly covered by FEHA. First, the SAC states that Plaintiff suffered a medical emergency in October 2021 from being exposed to methamphetamines (SAC ¶ 9), which resulted in Plaintiff experiencing a temporary mental and physical disability. (Opp. 5: 14-21.) As for the December 2021 disability, the SAC alleges that he was struck with flu-like symptoms, tested positive for strep throat on Friday 12/10/2021, and asked for temporary leave until 12/14/2021. (SAC ¶ 25.) Plaintiff argues that these diagnoses qualify under FEHA since it made work, a major life activity, difficult.

“[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)).

Previously, this Court determined that the FAC did not contain sufficient allegations of an illness that would be considered a disability. While acknowledging that the allegation that Plaintiff missed work due to hospitalization demonstrates an impact on a major life activity and there was a causal connection between taking time off and later being terminated, that alone was insufficient to allege a Disability Discrimination under FEHA. As the Court explained:

“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.”

The SAC suffers from the same deficiencies as the prior pleadings. Plaintiff has again failed to sufficiently allege facts that he suffered from a mental disability or physical disability. Plaintiff re-alleges that he suffered a “temporary psychosis and life-threatening physical injuries” (SAC ¶ 9), that required him to be temporarily off work from approximately October 26 to November 12, 2021. (SAC ¶¶11-13.) While Plaintiff now adds that the “exposure left him with ongoing mental health issues for which he was still under treatment,” and now characterizes the injuries as both physical and mental (SAC ¶9), other than in Note 2 of the SAC which the Court will disregard for reasons stated below, Plaintiff does not allege that this singular event was anything but a temporary or had any impact on performing his job presently or in the future. Plaintiff’s reliance on Ross v. County of Riverside (2019) 36 Cal.App.5th 580 is misplaced. There, Plaintiff, had repeated, ongoing, extended absences from work due to a potentially disabling neurological or autoimmune disorder. (Id. at p. 706.) Here, on the contrary, Plaintiff was off for a single medical emergency, that required a one-time leave for about two weeks. There are no allegations of extended absences or potential for on-going testing requiring additional time off. To be sure, the SAC fails to describe the nature, extent or duration of this single incident or the resulting “injuries” with any detail, let alone with sufficient detail to suggest that this temporary psychosis continued to be disabling or potentially disabling after November 12, 2021 when Plaintiff returned to work. (SAC ¶¶16-19.)

The Court also agrees with Defendant that there are several material, unexplained inconsistencies between his FAC and the SAC. For example: Note 2 in the SAC and Note 1 in the FAC. Previously, in the FAC, Plaintiff alleged that the therapy “had no impact on his ability to perform his job duties for Defendant or any other employer.” (FAC, n.1, emphasis added.) In the current pleading, Plaintiff alleges that as to the therapy, “he remained able to perform his essential job duties with reasonable accommodations.” (SAC, n.2, emphasis added) Apparently, in the SAC, his alleged behavioral therapy only had no impact if he was provided with reasonable accommodation suggesting that without an accommodation, the therapy in fact did have an impact on his ability to perform his job duties. No explanation, plausible or otherwise, is offered for these material changes. Accordingly, the Court will sustain Defendant’s request to ignore these changes under the sham pleading doctrine.[1]

As for the December 2021 incidents, the facts still do not indicate that Plaintiff suffered a disability. While having strep throat, and not Covid-19, may be uncomfortable, Plaintiff was diagnosed on Friday and back at work on Tuesday. As previously stated, conditions allege to be mild, which have little or no residual effects, like a common cold or flu are not disabilities. (See Cal. Code Reg. tit. 2, § 11065 (d)(9)(B).)

This Court previously stated that conclusionary allegations that Plaintiff suffered from disabilities affecting the neurological, immunological, cardiovascular, and muscular body systems is not sufficient. (FAC ¶32.) Nonetheless, once again, paragraph 35 of the SAC re-alleges the same conclusory language: “disabilities affected one or more of Mr. Diaz’s neurological, immunological, cardiovascular, and muscular body systems.” While a demurrer need not allege all the facts, it must allege the ultimate facts. In sum, the bare allegations that Plaintiff’s various bodily systems were affected in conclusory manner without pleading the ultimate facts is not enough.

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 and to temporarily work from home. (Demurrer 13: 25-28; SAC ¶ 47.)

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 and provided doctor’s notes, the interactive process was triggered. (Opp. 10: 16-23.)

“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, as stated above. Even still, Plaintiff fails to allege any facts that Defendant denied his request for time off. In fact, the SAC 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 previously stated, Plaintiff has sufficiently alleged facts for a cause of action for failure to engage in the interactive process. Plaintiff requested an accommodation, that he could work from home temporarily. (SAC ¶ 59.) Plaintiff was willing to participate in the interactive process. (SAC ¶ 60.) And Defendant failed to participate in this process, denying Plaintiff’s request and did not engage in the interactive process. (SAC ¶ 62.) 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.

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 absences do not qualify for CFRA relief. (Demurrer 15: 3-15.) As for the claim in December 2021, Plaintiff did not allege a serious health condition that is required under CFRA to qualify for leave. (SAC 71.) Though the FAC states that Plaintiff suffered from flu-like symptoms, it only states that he was positive for strep throat, not Covid-19. Plaintiff also does not allege that he took the medication he was prescribed, continued receiving treatment, or was under continuing supervision of his medical provider. (Demurrer 16: 3-7.)

Plaintiff argues that this cause of action contains sufficient facts. The SAC states that on November 11, 2021, Plaintiff contacted Defendant about his eligibility under FMLA, Defendant did not inform Plaintiff of his rights under CFRA, denied leave under CFRA, and terminated Plaintiff. (SAC ¶ 68-71.) Plaintiff argues that this is sufficient “to meet his burden on demurrer that Defendant interfered with Plaintiff’s ability to take CFRA leave by purposefully refusing to hide from his rights under CFRA when obliged to do so.” (Opp. 11: 21-23.)

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.)

Previously, this Court determined that as for the November 2021 incident, the FAC sufficiently alleged that Plaintiff reached the 12-month mark, but failed to sufficiently allege that he was suffering from a serious health condition. The Court went into detail in explaining the deficiencies in the pleadings:

“To be clear, ‘behavioral services therapy’ (FAC ¶ 12) is not sufficiently specific enough to constitute a serious health condition as defined by 29 C.F.R. 825.115. Left unalleged is the number of treatments, the timing of the treatment, and whether the ‘therapy’ was under the supervision of a health care provider. However, even assuming that the phrase ‘behavioral services therapy’ is sufficient to allege a serious health condition, even in read in conjunction with the allegations that “he was still recuperating and needed an MRI to make sure he was physically able to come to work,” (FAC ¶15), Plaintiff does not allege that he was unable to perform the functions of his job because of a serious health condition.”

Despite this specific guidance, Plaintiff has yet to cure these defects in the SAC. Instead, Plaintiff still fails to allege any specifics concerning this therapy. The only allegations are that Plaintiff was and is still attending these behavioral services therapy (SAC ¶ 13, 71), but other than adding that the treatment is “from his doctor,” the pleadings still do not provide any specific information.

As for the December 7, 2021, allegations, the SAC 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 SAC 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 ¶ 25.) The Court found in its previous ruling that this temporary illness does not adequately allege a serious health condition as required under Gov’t Code § 12495.2. Instead of bolstering this allegation, Plaintiff simply re-alleges the previous, insufficient facts and argues in its points and authorities that the allegations are sufficient. These allegations were lacking in the FAC and they remain deficient in the SAC.

Defendant argues that Plaintiff’s retaliation claim is conclusory. In paragraph 83 of the SAC, Plaintiff states that he sought leave for his mental and physical health and was terminated. The SAC does not state facts that would allow Plaintiff to assert a right under FEHA or CFRA for medical leave. Additionally, the SAC does not have any facts alleged that Plaintiff suffered from a serious health condition.

Plaintiff argues that SAC sufficiently alleges retaliation. Specifically, Defendant threatened termination, gave a bad performance review, and terminated Plaintiff based on his leave. Plaintiff then provides paragraphs 14, 15, 26, and 27 of the SAC. Additionally, Plaintiff alleges he was terminated because he took CFRA leave after his strep throat diagnosis. (SAC ¶¶ 26-28.)

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 SAC does not do so.

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.

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. 15:6-11, 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 (SAC ¶ 7) and Plaintiff was terminated (SAC ¶ 27), 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.

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). The Court has allowed Plaintiff to amend the complaint more than once. Even after these amendments, Plaintiff has still failed to sufficiently allege a disability as required for these FEHA and CFRA claims. Plaintiff has not demonstrated that he will be able to amend the SAC to fix the defects because this Court previously indicated what was necessary and Plaintiff failed make those changes sufficiently. Thus, leave to amend is DENIED.

Defendant moves to strike the entire amended complaint. Defendant argues that the SAC is untimely under California Rules of Court § 3.1320. Here, the Court’s ruling was served on December 7, 2022, via mail. Because service was completed by mail, and the Court did not provide a specific time limit, Rule 3.1320 applies. Rule 3.1320(g) states: “following a ruling on a demurrer, unless otherwise ordered, leave to answer or amend within 10 days is deemed granted.” Plaintiff’s deadline was December 22, 2022, but did not file the SAC until January 6, 2023.

Plaintiff argues that Defendant failed to provide notice of the ruling. After receiving Defendant’s Answer, Plaintiff informed Defendant it did not receive Defendant’s notice or ruling or the Clerk’s mailing. Plaintiff also argues that the Motion to Strike is procedurally improper because the rules of court are not legal grounds that a motion to strike can be based. Moreover, Plaintiff argues that Defendant has not been prejudiced.

Demurrer as to causes of action 1-6, and 8 is SUSTAINED, without leave to Amend. Motion to Strike is MOOT.

[1] “Under the sham pleading doctrine, plaintiffs are precluded from amending complaints to omit harmful allegations, without explanation, from previous complaints to avoid attacks raised in demurrers or motions for summary judgment.” (Deveny v. Entropin, Inc.(2006) 139 Cal.App.4th 408, 425.) “ ‘Generally, after an amended pleading has been filed, courts will disregard the original pleading. However, an exception to this rule is found ... where an amended complaint attempts to avoid defects set forth in a prior complaint by ignoring them. The court may examine the prior complaint to ascertain whether the amended complaint is merely a sham.’ Moreover, any inconsistencies with prior pleadings must be explained; if the pleader fails to do so, the court may disregard the inconsistent allegations. [Citation.] Accordingly, a court is ‘not bound to accept as true allegations contrary to factual allegations in former pleading in the same case.’ [Citation.]” (Larson v. UHS of Rancho Springs, Inc. (2014) 230 Cal.App.4th 336, 343; quoting Vallejo Development Co. v. Beck Development Co. (1994) 24 Cal.App.4th 929, 946.)