Judge Upinder S. Kalra, Case Number: 24STCV09563, Date: 2024-07-18 Tentative Ruling

1. Demurrer to the First, Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, Fourteenth, Eighteenth, and Nineteenth Causes of Action in the Complaint for failure to allege facts sufficient to constitute a cause of action against Defendants.

1. Demurrer to the Complaint is OVERRULED as to the Nineteenth Cause of Action and SUSTAINED as to the remaining causes of action with 20 days leave to amend.

On April 16, 2024, Plaintiff Jacqueline Granizo (Plaintiff) filed a Complaint against Defendants Build For You Remodeling Corp, Igor Rahlin, and Jamie Doe (Defendants) with nineteen (19) causes of action for: (1) Wrongful Termination in Violation of Public Policy; (2)Whistleblower Retaliation; (3) FEHA Violation – Disparate Impact/Treatment; (4) FEHA Harassment; (5) FEHA Discrimination; (6) FEHA Violation – Retaliation; (7) FEHA Violation – Failure to Provide Reasonable Accommodation; (8) FEHA Violation – Failure to Engage in Interactive Process; (9) Intentional Infliction of Emotional Distress; (10) Negligent Infliction of Emotional Distress; (11) Failure to Pay Earned Wages; (12) Failure to Pay Overtime Wages; (13) Failure to Pay Rest Break Compensation; (14) Failure to Furnish Compliant Wage Statements; (15) Waiting Time Penalties; (16) Failure to Produce Employment File; (17) Failure to Produce Wage Records; (18) Breach of Contract; and (19) Unfair Competition.

According to the Complaint, Plaintiff worked for Defendants from around March 19, 2023 to April 17, 2023 as a Telemarketer. Plaintiff alleges that Defendants unlawfully discriminated against her based on her age and other labor law violations. Plaintiff further alleges she was wrongfully terminated after she complained about not receiving a bonus and for reporting a workplace injury.

On May 28, 2024, Defendants filed the instant Demurrer to the Complaint. On July 3, 2024, Plaintiff filed an opposition. On July 10, 2024, Plaintiff filed a second opposition. Defendants filed a reply on July 11, 2024.

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). There is no meet and confer declaration. Therefore, the court cannot determine whether sufficient meet and confer occurred. Still, failure to meet and confer is not a sufficient ground to overrule or sustain a demurrer. (CCP § 430.41(a)(4).)¿

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.[1]¿(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, supra, 147 Cal.App.4th at 747.)¿¿

When considering demurrers, courts read the allegations liberally and in context, accepting the alleged facts as true. (Nolte v. Cedars-Sinai Medical Center (2015) 236 Cal.App.4th 1401, 1406.) Courts also consider exhibits attached to the complaint and incorporated by reference. (See Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94 (Frantz).)¿

First Cause of Action – Wrongful Termination in Violation of Public Policy

Defendants contend that Plaintiff failed to plead specific facts about the public policy Defendants allegedly violated when terminating her. Plaintiff argues she identified the public policy outlined in Cal. Govt. Code §§ 12900 et seq. that requires Defendants to provide a workplace free of harassment, discrimination, and retaliation. Plaintiff also argues she sufficiently alleged facts showing wrongful termination.

“The elements of a claim for wrongful discharge in violation of public policy are (1) an employer-employee relationship, (2) the employer terminated the plaintiff's employment, (3) the termination was substantially motivated by a violation of public policy, and (4) the discharge caused the plaintiff harm.” (Yau v. Allen (2014) 229 Cal.App.4th 144, 154.) A four-part test is utilized to determine whether a particular policy can support a common law wrongful termination claim. The “policy” in question must meet the following requirements: (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.)

Upon reviewing the Complaint, the court agrees that Plaintiff failed to sufficiently allege wrongful discharge in violation of public policy. While the court is not persuaded by Defendants’ argument that the public policy is unclear (as Plaintiff repeatedly refers to FEHA and the California Labor Code), Plaintiff did fail to allege facts that her termination was substantially motivated by the violation of public policy.

Accordingly, the court SUSTAINS Defendants’ Demurrer to the First Cause of Action.

Second Cause of Action – Whistleblower Retaliation (Cal. Lab. Code §§ 1102.5 & 98.6)

Defendants contend that this cause of action is not supported by the Complaint. Plaintiff argues that she plead she engaged in a protected activity of reporting a workplace injury and unpaid bonuses to her manager and was subsequently terminated.

Labor Code section 1102.5, subdivision (b) provides: “[a]n employer, or any person acting on behalf of the employer, shall not retaliate against an employee for disclosing information, or because the employer believes that the employee disclosed or may disclose information, to a government or law enforcement agency, to a person with authority over the employee or another employee who has the authority to investigate, discover, or correct the violation or noncompliance, or for providing information to, or testifying before, any public body conducting an investigation, hearing, or inquiry, if the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation, regardless of whether disclosing the information is part of the employee's job duties.” (Lab. Code, § 1102.5, subd. (b).)

Labor Code section 98.6, subdivision (a) provides: “[a] person shall not discharge an employee or in any manner discriminate, retaliate, or take any adverse action against any employee . . . because the employee . . . engaged in any conduct delineated in this chapter . . . or because the employee . . . has filed a bona fide complaint or claim or instituted or caused to be instituted any proceeding under or relating to their rights that are under the jurisdiction of the Labor Commissioner, made a written or oral complaint that they are owed unpaid wages, or because the employee has initiated any action or notice pursuant to Section 2699, or has testified or is about to testify in a proceeding pursuant to that section, or because of the exercise by the employee or applicant for employment on behalf of themselves or others of any rights afforded them.” (Lab. Code, § 98.6, subd. (a).)

Upon reviewing the Complaint, the court agrees that Plaintiff failed to sufficiently allege a claim for whistleblower retaliation. Notably, Plaintiff did not allege a protected activity. Plaintiff alleges she reported a workplace injury to her manager and complained to her manager that she had not received a bonus – not violations of the law. (Compl. ¶¶ 20, 21, 23.)

Accordingly, the court SUSTAINS Defendants’ demurrer to the Second Cause of Action.

Third Cause of Action – FEHA Violation – Disparate Impact/Treatment (Cal. Govt. Code §§ 12900, et seq., 12940(c))

Defendants contend that the Complaint fails to allege facts that Defendants discriminated against Plaintiff due to her age, health, or disability. Specifically, Defendants contend that identifying Plaintiff’s age is insufficient to support this claim. Defendants provide no authority supporting this argument. Plaintiff argues that she alleged facts that she was harassed and discriminated against based on her age, gender, and health.

Under “disparate treatment theory” of employment discrimination, an individual is discriminated against when employer treats some people less favorably than others because of their race, color, religion, sex or national origin. (Heard v. Lockheed Missiles & Space Co. (1996) 44 Cal.App.4th 1735, 1748.) “Whatever the employer's decisionmaking process, a disparate treatment claim cannot succeed unless the employee's protected trait actually played a role in that process and had a determinative influence on the outcome.” (Hazen Paper Co. v. Biggins (1993) 507 U.S. 604, 610.)

A claim for age discrimination requires plaintiff to show she was: (1) a member of a protected class (over 40 years old); (2) plaintiff was qualified or competent for the position sought or performed; (3) plaintiff suffered an adverse employment action; and (4) some other circumstance suggesting discriminatory motive. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 355; Sandell v. Taylor-Listug, Inc. (2010) 188 Cal.App.4th 297, 321.)

Upon reviewing the Complaint, Plaintiff has not sufficiently alleged a claim for Disparate Impact/Treatment. Notably, Plaintiff did not allege she was qualified or competent for the position performed.

Accordingly, the court SUSTAINS Defendants’ demurrer to the Third Cause of Action.

Fourth Cause of Action - FEHA Harassment (Cal. Govt. Code §§ 12900, et seq.)

Defendants contend that stating Plaintiff’s age and alleging she fell in a bathroom is insufficient to support a claim for harassment. Defendants provide no authority supporting this argument. Plaintiff argues that she sufficiently plead harassment because she was moved to a different manager’s department after returning from hospitalization, was scrutinized more than others, did not receive her bonuses, and Defendants interpreted her workplace injury as self-inflicted.

To establish a claim for discrimination in violation of FEHA, the plaintiff must generally prove that (1) he or she was a member of a protected class; (2) that he or she was qualified for the position he or she sought or was performing competently in the position he or she held; (3) that he or she suffered an adverse employment action, such as termination, demotion, or denial of an available job; and (4)¿some other circumstance suggesting¿discriminatory motive. (See¿Guz, supra, 24 Cal.4th at 355.)¿

For the same reasons as the Third Cause of Action, the court SUSTAINS Defendants’ Demurrer to the Fourth Cause of Action.

Fifth Cause of Action – FEHA Discrimination (Cal. Govt. Code § 12900, et seq.)

Defendants raise the same argument, without authority, proffered for the Fourth Cause of Action. Plaintiff argues that she sufficiently plead discrimination based on her age and disability.

In order to sufficiently allege a prima facie case for gender discrimination under FEHA, a plaintiff must generally establish the following elements: (1) plaintiff was a member of a protected class; (2) plaintiff was qualified for the position he or she sought or was performing competently in the position he or she held at the time of the adverse action; (3) plaintiff suffered an adverse employment action (e.g., termination, demotion, denial of an available job); and (4) the adverse action occurred under circumstances suggesting a discriminatory motive (e.g., persons outside the protected class were hired or not demoted). (Guz, supra, 24 Cal.4th at 355; see Nadaf-Rahrov v. Neiman Marcus Group, Inc. (2008) 166 Cal.App.4th 952, 992; see also Sandell, supra, 188 Cal.4th at p. 321.) To establish a prima facie case for discrimination under FEHA, the prima facie burden is light, and the evidence necessary to sustain the burden is minimal. (Id. at p. 310.)

In order to plead a prima facie case for disability discrimination under FEHA, a plaintiff must plead the following elements: (1) plaintiff suffered from a disability, or was regarded as suffering from a disability; (2) plaintiff could perform the essential duties of the job with or without reasonable accommodation, and (3) plaintiff was subjected to an adverse employment action because of the disability or perceived disability. (Wills v. Superior Court (2011) 195 Cal.App.4th 143, 159-160.)

For the same reasons as the Third Cause of Action and the First Cause of Action, the court SUSTAINS Defendants’ Demurrer to the Fifth Cause of Action.

Sixth Cause of Action – FEHA Violation – Retaliation (Cal. Govt. Code § 12940(h), 12940 et seq.)

Defendants contend that Plaintiff failed to allege facts that she engaged in a protected activity, that her employer subjected her to an adverse employment action, and a causal link existed between the protected activity and the adverse employment action. Plaintiff argues she sufficiently alleged retaliation because she was told to take more time off work, moved to a different manager, not given her bonus, and terminated after complaining about a workplace injury and not receiving her bonus.

“[I]n order to establish a prima facie case of retaliation under the FEHA, a plaintiff must show (1) he or she engaged in a ‘protected activity,’ (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer’s action.” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.) A plaintiff will have engaged in a “protected activity” if he or she (a) made a charge, testified, assisted, or participated in any manner in proceedings or hearings under FEHA, or (b) opposed acts which are unlawful under FEHA. (Gov. Code, § 12940, subd. (h) [“It is an unlawful employment practice . . .: ¶(h) For any employer . . . to discharge, expel, or otherwise discriminate against any person because the person had opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part.”].)

For the same reasons as the Third Cause of Action and the First Cause of Action, the court SUSTAINS Defendants’ Demurrer to the Sixth Cause of Action.

Seventh Cause of Action – FEHA Violation – Failure to Provide Reasonable Accommodation (Cal. Govt. Code § 12940(m), § 12940 et seq.)

Defendants raise the same argument, without authority, proffered for the Fourth Cause of Action. Plaintiff argues she sufficiently alleged this claim because she suffered a workplace injury, requested reasonable accommodation, and did not receive one.

To allege a cause of action for failure to provide a reasonable accommodation, a plaintiff must plead the following elements: (1) plaintiff has a disability, (2) plaintiff is qualified to perform the essential functions of the position, and (3) the employer failed to reasonable accommodate the plaintiff’s disability.” (Swanson v. Morongo Unified School Dist. (2014) 232 Cal.App.4th 954, 969.)

Upon reviewing the Complaint, Plaintiff has not sufficiently alleged a claim for failure to engage in the interactive process. Notably, Plaintiff did not allege that her lung condition impacted her work other than needing to be hospitalized for one week. (Compl. ¶ 19.) Plaintiff then alleges that she was moved to a different manager upon her return. (Compl. ¶ 20.) Contrary to Plaintiff’s argument, there are no allegations in the Complaint that she requested accommodations due to her lung condition.

Accordingly, the court SUSTAINS Defendants’ Demurrer to the Seventh Cause of Action.[2]

Eighth Cause of Action – FEHA Violation – Failure to Engage in Interactive Process (Cal. Govt. Code § 12940(m), § 12940 et seq.)

Defendants essentially raise the same argument, without authority, proffered for the Fourth Cause of Action. Plaintiff argues that she sufficiently alleged her lung infection impacted her work and Defendants failed to make reasonable accommodations so she could carry out essential job requirements.

In order to allege a cause of action for failure to engage in interactive process, a plaintiff must allege the following facts: (1) plaintiff was an employee of defendant, (2) plaintiff had a disability known by defendant, (3) plaintiff requested that defendant make a reasonable accommodation for his or her disability so that he or she may be able to perform the essential job requirements, (5) plaintiff was willing to participate in an interactive process to determine whether a reasonable accommodation could be made so that he or she would be able to perform the essential job requirements, and (6) defendant failed to participate in a timely food-faith interactive process with plaintiff to determine whether a reasonable accommodation could be made. (Gov. Code, § 12940, subd. (n); CACI No. 2546 [Disability Discrimination—Reasonable Accommodation—Failure to Engage in Interactive Process].) “Two principles underlie a cause of action for failure to provide a reasonable accommodation. First, the employee must request an accommodation. Second, the parties must engage in an interactive process regarding the requested accommodation and, if the process fails, responsibility for the failure rests with the party who failed to participate in good faith.” (Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34, 54.)

For the same reasons as the Seventh Cause of Action, the court SUSTAINS Defendants’ Demurrer to the Eighth Cause of Action.

Defendants contend that Plaintiff failed to sufficiently allege facts supporting outrageous conduct. Plaintiff did not provide argument in opposition.

The elements of an intentional infliction of emotional distress (IIED) cause of action are: (1) extreme and outrageous conduct by the defendant; (2) intention to cause or reckless disregard of the probability of causing emotional distress; (3) severe emotional suffering; and (4) actual and proximate causation of the emotional distress.¿ (See¿Moncada¿v. West Coast Quartz Corp.¿(2013) 221 Cal.App.4th 768, 780.)¿ To satisfy the element of extreme and outrageous conduct,¿defendant’s conduct “‘must be so extreme as to exceed all bounds of that usually tolerated in a civilized society.’”¿ (Ibid.) (internal citations omitted.)¿¿¿¿¿

While there is no bright-line as to what constitutes outrageous conduct and thus this involves a case-by-case analysis, courts can determine whether conduct was sufficiently outrageous at the demurrer stage. (Cochran v. Cochran¿(1998) 65 Cal.App.4th 488, 494.)¿¿Recovery for emotional distress caused by injury to property is permitted in IIED claims. (Ragland v. U.S. Bank National Assn. (2012) 209 Cal.App.4th 182, 203-04.) (internal citations omitted.)¿

Upon reviewing the Complaint, Plaintiff has not sufficiently alleged intentional infliction of emotional distress. She alleges she was moved to a different manager, not paid bonus, and terminated. (Compl. ¶¶ 20, 21, 22.) This is hardly extreme and outrageous conduct contemplated by intentional infliction of emotional distress. The court interprets Plaintiff’s lack of argument as impliedly conceding this point.

Accordingly, the court SUSTAINS Defendants’ demurrer to the Ninth Cause of Action.

Defendants contend that Plaintiff failed to sufficiently allege facts supporting this claim. Plaintiff did not provide argument in opposition.

A claim for negligent infliction of emotional distress (NIED) requires: (1) a legal duty to use due care (direct victim or bystander), (2) breach of such legal duty, (3) damage or injury (serious emotional distress), and (4) cause of the resulting damage or injury. (Huggins v. Longs Drug Stores California, Inc. (1993) 6 Cal.4th 124, 129.)

Upon reviewing the Complaint, Plaintiff has not sufficiently alleged a claim for negligent infliction of emotional distress. In fact, Plaintiff was not a direct victim or a bystander of Defendants’ negligent conduct – Plaintiff alleges intentional conduct. The court interprets Plaintiff’s lack of argument as impliedly conceding this point.

Accordingly, the court SUSTAINS Defendants’ Demurrer to the Tenth Cause of Action.

Fourteenth Cause of Action – Failure to Furnish Compliant Wage Statements (Cal. Lab. Code §§ 226 and 226.3)

Defendants contend that Plaintiff failed to identify facts supporting this claim. Plaintiff argues that she alleged Defendants did not provide all the information required by law on her wage statements.

Labor Code § 226 requires employers to furnish an accurate itemized statement in writing showing: “(1) gross wages earned, (2) total hours worked by the employee . . ., (3) the number of piece-rate units earned and any applicable piece rate if the employee is paid on a piece-rate basis; (4) all deductions . . ., (5) net wages earned, (6) the inclusive dates of the period for which the employee is paid, (7) the name of the employee and only the last four digits of their social security number or an employee identification number other than a social security number, (8) the name and address of the legal entity that is the employer . . ., and (9) all applicable hourly rates in effect during the pay period and the corresponding numbers of hours worked at each hourly rate by the employee . . . .” (Lab. Code § 226(a).)

Labor Code § 226.3 provides for civil penalties for violation of Labor Code § 226(a). (Lab. Code § 226.3.)

Upon reviewing the Complaint, the court agrees that Plaintiff failed to sufficiently allege facts supporting this claim. Notably, Plaintiff alleges that Defendants failed to provide her with compliant wage statements that lacked “one or more of the required items of information.” (Compl. ¶ 32, 134.) These are legal contentions, not facts.

Accordingly, the court SUSTAINS Defendants’ Demurrer to the Fourteenth Cause of Action.

Defendant contends Plaintiff failed to identify a contract. Plaintiff argues that her non-discretionary bonus was the contract Defendants breached.

The standard elements of a claim for breach of contract are (1) the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) damage to plaintiff therefrom. (Wall Street Network, Ltd. v. New York Times Co. (2008) 164 Cal.App.4th 1171, 1178.) “A written contract may be pleaded by its terms—set out verbatim in the complaint or a copy of the contract attached to the complaint and incorporated therein by reference—or by its legal effect.” (McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1489.) To plead a contract by its legal effect, a plaintiff must “allege the substance of its relevant terms. This is more difficult, for it requires a careful analysis of the instrument, comprehensiveness in statement, and avoidance of legal conclusions.” (Ibid.)¿

Upon reviewing the Complaint, Plaintiff has insufficiently alleged breach of contract. Notably, Plaintiff has not sufficiently alleged a contract exists. She alleges that “she did not receive all her bonuses for closing deals while working for Defendants despite Defendants agreeing to do so.” (Compl. ¶ 30.) She did not allege the terms of the alleged contract or the date of alleged breach.

Accordingly, the court SUSTAINS Defendants’ Demurrer to the Eighteenth Cause of Action.

Nineteenth Cause of Action – Unfair Competition (Cal. Bus. & Prof. Code § 17200 et seq.)

Defendant provides no argument for this claim. Plaintiff did not address it either. The court declines to do so, too. (See Mesecher v. County of San Diego (1992) 9 Cal.App.4th 1677, 1686 [noting that the court is not “obligated to seek out theories [a party] might have advanced, or to articulate . . . that which . . . [a party] has left unspoken.”])

To the extent there was one, the court OVERRULES the demurrer to the Nineteenth Cause of Action.

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) 14 Cal.5th 1034, 1041.)¿ 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 requested leave to amend and there is a reasonable possibility that an amendment could cure the defects discussed above.

1. Demurrer to the Complaint is OVERRULED as to the Nineteenth Cause of Action and SUSTAINED as to the remaining causes of action with 20 days leave to amend.

[1] With that in mind, the court disregards Plaintiff’s second “Opposition” of purported exhibits as an improper Request for Judicial Notice.

[2] The court could also sustain the demurrer to the Seventh Cause of Action for the same reasons articulated in the Demurrer to the Third Cause of Action.