Judge Upinder S. Kalra, Case Number: 24STCV32367, Date: 2025-06-09 Tentative Ruling

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1. Demurrer to the First, Second, Third, and Fourth Causes of Action for failure to state sufficient facts to constitute a cause of action.[1]

2. Motion to Strike various portions of the First Amended Complaint pertaining to punitive damages and one typographical error in the caption.

On December 9, 2024, Plaintiff Joshua Ariza (Plaintiff) filed a Complaint against Defendant The Illumination Foundation (Defendant) with four causes of action for: (1) Military Status Discrimination; (2) Harassment / Hostile Work Environment; (3) Retaliation; and (4) Constructive Wrongful Termination.

According to the Complaint, Plaintiff worked for Defendant from August 30, 2022 to December 12, 2022. Plaintiff alleges that after informing his manager that he intended to join the Navy, he experienced a negative shift in the workplace. Plaintiff further alleges that he resigned his employment after Defendant would not accommodate a third day of enlistment processing because he feared to have a “fired” record in his file.

On January 29, 2025, Plaintiff filed a First Amended Complaint (FAC) with five causes of action for: (1) Disability Discrimination; (2) Military Status Discrimination; (3) Harassment / Hostile Work Environment; (4) Retaliation; and (5) Constructive Wrongful Termination.

On February 28, 2025, Defendant filed the instant demurrer with motion to strike. Oppositions were due on or before May 27, 2025. Rather than filing an opposition, Plaintiff instead filed a proposed Second Amended Complaint.

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.)¿¿¿¿

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).)¿¿¿

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. (CCP § 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. (CCP) §430.41 and demonstrate that they so satisfied their meet and confer obligation by submitting a declaration pursuant to CCP §430.41(a)(2) & (3). The meet and confer requirement also applies to motions to strike. (CCP § 435.5.) Here, the parties met and conferred via telephone. (Lopez Decl. ¶¶ 8-9.) This requirement is therefore met.

Among other arguments, Defendant contends that this claim fails because Plaintiff did not allege he is a member of a protected class since he was enrolling in the Navy. Plaintiff did not file an opposition.

FEHA prohibits an employer to discriminate against a person in terms, conditions, or privilege of employment due to “veteran or military status.” (Gov. Code § 12940(a).) “‘Veteran or military status’ means a member or veteran of the United States Armed Forces, United States Armed Forces Reserve, the United States National Guard, and the California National Guard.” (Gov. Code § 12926(k).)

Upon reviewing the FAC, Plaintiff failed to sufficiently allege this claim. Notably, and as pointed out by Defendant, Plaintiff did not allege he was a “member” or a “veteran” of the “United States Armed Forces.” (FAC ¶¶ 16, 30, 40, 48.) The statute clearly defines the protected category as member or veteran of the military. (Gov. Code § 12926(k).) Examining the “usual and ordinary meaning and construing [these words] in context” the definition refers to two categories of individuals: members or veterans. (Haligowski v. Superior Court (2011) 200 Cal.App.4th 983, 987 [discussing statutory interpretation of Mil. & Vet. Code § 394; Paleny v. Fireplace Products U.S., Inc. (2024) 103 Cal.App.199, 207-210 [discussing statutory construction of FEHA in the context of egg retrieval for potential future pregnancy not protected as pregnancy related disability under those circumstances.]) Here, Plaintiff alleged he intended to enroll in the Navy and was in the process of enrolling – not that he was a member of the military. (FAC ¶¶ 16, 30, 40, 48.) The court is unaware of authority expanding “member or veteran” to include “anticipated member” of the military.

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

Defendant contends that this claim fails because Plaintiff did not allege facts of protected status. Plaintiff did not file an opposition.

A claim for hostile work environment requires: (1) the plaintiff is a member of a protected class; (2) subjected to unwelcome harassment; (3) based on the plaintiff’s protected status; (4) the harassment unreasonably interfered with their work performance by creating an intimidating, hostile, or offensive work environment; and (5) defendants are liable for the harassment. (Ortiz v/ Dameron Hospital Assn. (2019) 37 Cal.App.5th 568, 581.)

For the same reasons articulated above, the court SUSTAINS Defendant’s demurrer to the Second Cause of Action.

Defendant contends that this claim fails because Plaintiff did not allege he engaged in a protected activity under FEHA. Plaintiff did not file an opposition.

“[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.”].)¿¿

Upon reviewing the FAC, Plaintiff insufficiently stated a claim for retaliation. Indeed, Plaintiff did not allege he engaged in a protected activity. Instead, Plaintiff alleges he “requested time off to attend his Military Entrance Processing Station (“MEPS”).” (FAC ¶ 16.) This is not a protective activity articulated in the statute.

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

Defendant contends this claim fails because Plaintiff did not allege he was part of a protected group, engaged in a protected activity, was discriminated, was harassed, or retaliated against. What is more, Defendant contends that Plaintiff alleged a single isolated act of alleged misconduct which does not support a constructive wrongful discharge claim. Plaintiff did not file an opposition.

“[A]n at-will employee possesses a tort action when he or she is discharged for performing an act that public policy would encourage, or for refusing to do something that public policy would condemn.” (Gantt v. Sentry Insurance (1992) 1 Cal.4th 1083, 1090.) "[A]n employer has no right to terminate employment for a reason that contravenes fundamental public policy as expressed in a constitutional or statutory provision. [Citation.] An actual or constructive discharge in violation of fundamental public policy gives rise to a tort action in favor of the terminated employee. " (Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1252.)

“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. Santa Margarita Ford, Inc. (2014) 229 Cal.App.4th 144, 154.)

“[F]or a policy to support a wrongful discharge claim, it must be: (1) delineated in either constitutional or statutory provisions; (2) ‘public’ in the sense that it ‘inures to the benefit of the public’ rather than serving merely the interests of the individual; (3) well established at the time of the discharge; and (4) substantial and fundamental.” (Stevenson v. Superior Court (1997) 16 Cal.4th 880, 894.)

"Constructive discharge occurs when the employer's conduct effectively forces an employee to resign. Although the employee may say, ‘I quit,’ the employment relationship is actually severed involuntarily by the employer's acts, against the employee's will. As a result, a constructive discharge is legally regarded as a firing rather than a resignation." (Turner v. Anheuser-Busch, Inc., supra, 7 Cal.4th at 1244–1245.) "The essence of the test is whether, under all the circumstances, the working conditions are so unusually adverse that a reasonable employee in plaintiff's position ¿“‘would have felt compelled to resign.’”’" (Id., 1247, quoting Slack v. Kanawha Cty Housing and Redevelopment Auth. (1992) 188 W.Va. 144 [423 S.E.2d 547, 556].)

Upon reviewing the FAC, Plaintiff insufficiently stated this claim. First, Plaintiff alleges that he resigned because he was “[c]oncerned about potential termination and the impact it could have on his military record. . . .” (FAC ¶¶ 20-21.) Plaintiff otherwise alleges requests to take time off and coverage issues with his supervisors and a vague “shift in the workplace atmosphere.” (FAC ¶¶ 14, 16-19.)

Accordingly, the court SUSTAINS Defendant’s demurrer to the Fourth Cause of Action.

In light of the foregoing demurrer ruling, the court DENIES the motion to strike as moot.

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 burden is on Plaintiff to establish that the defect is reasonably capable of cure with leave to amend. (Hendy v. Losse (1991) 54 Cal.3d 723, 742.) Here, Plaintiff did not file an opposition. The court is inclined to sustain without leave to amend but will consider oral argument at the hearing as to whether Plaintiff can cure these defects.

Pursuant to CCP § 581d, this written order of dismissal constitutes a judgment and shall be effective for all purposes. The Clerk shall note this judgment in the register of actions in this case.¿¿

Defendant refers to the First, Second, Third, and Fourth Causes of Action but refers to how they were labeled in the original Complaint. These are the Second, Third, Fourth, and Fifth Causes of Action in the FAC’s caption. The First Cause of Action is for disability discrimination in the FAC’s caption. However, the FAC body does not contain such a cause of action and, indeed, labels the causes of action as Defendant did. Even so, Defendant’s demurrer is procedurally defective for failing to separately list the grounds for demurrer. (CRC, rule 3.1320(a).) However, there is substantial compliance with this because it is in the notice.