Judge: Virginia Keeny, Case: 23STCV21243, Date: 2025-03-18 Tentative Ruling

Case Number: 23STCV21243    Hearing Date: March 18, 2025    Dept: 45

MARY MINAR, D.O. v. MEMORIAL CARE MEDICAL GROUP, ET AL.

1) DEMURRER TO FAC; 2) MOTION TO STRIKE

Date of Hearing:          March 18, 2025                       Trial Date:       July 14, 2025

Department:               45                                            Case No.:         23STCV21243

Complaint Filed:            September 1, 2023

FAC Filed:                    September 23, 2024

Moving Party:             Defendants Memorial Care Medical Group; Memorial Health                                              Services, Memorial Care Medical Foundation; Memorial Care

Responding Party:       Plaintiff Mary Minar

Notice:                         Proper

BACKGROUND

On September 1, 2023, Plaintiff Mary Minar, D.O., (“Plaintiff”) filed an employment action against Defendants Memorial Care Medical Group (“Memorial Group”), Memorial Health Services (“Memorial Services”), Memorial Care Medical Foundation (“Memorial Foundation”), and Memorial Care (collectively, “Defendants”).  

Plaintiff’s original complaint alleged nine claims for disability discrimination (“COA 1”), failure to engage in the interactive process (“COA 2”), failure to provide a reasonable accommodation (“COA 3”), retaliation in violation of FEHA (“COA 4”), gender discrimination (“COA 5”), retaliation in violation of Labor Code section 1102.5 (Section 1102.5) (“COA 6”), religious discrimination (“COA 7”), misrepresentation (“COA 8”), and wrongful termination (“COA 9”).  

On September 3, 2024, the Court sustained Defendants’ demurrer to COA 7 and COA 8 with leave to amend.

On September 23, 2024, Plaintiff filed a first amended complaint (“FAC”) alleging the same nine (9) COAs.

On November 25, 2024, Defendants filed the instant demurrer to COA 7 and COA 8, and motion to strike.

[Tentative] Ruling

1.  Defendants’ Demurrer is SUSTAINED with 60 days leave to amend.

2. Defendants’ Motion to Strike is GRANTED in part and DENIED in part. The motion to strike 43:13-22 (religious discrimination), 43:23-44:11 (religious discrimination), 48:4-13 (misrepresentation), and 48:14-28 (misrepresentation) is DENIED as moot based on the Court’s ruling on the demurrer. In all other respects, the motion is GRANTED with 60 days leave to amend.

EVIDENTIARY OBJECTIONS

Defendants’ Objections to the Declaration of Maryann P. Gallagher submitted by Plaintiff in support of her Opposition to the Demurrer is ruled on as follows:

1.      Overruled

2.      Overruled

3.      Overruled

4.      Sustained, Improper Legal Conclusion

5.      Sustained, Improper Legal Conclusion

LEGAL STANDARD

A demurrer tests the legal sufficiency of the pleadings and will be sustained only where the pleading is defective on its face. (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.)  “We treat the demurrer as admitting all material facts properly pleaded but not contentions, deductions or conclusions of fact or law.  We accept the factual allegations of the complaint as true and also consider matters which may be judicially noticed.  [Citation.]”  (Mitchell v. California Department of Public Health (2016) 1 Cal.App.5th 1000, 1007; Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604 [“the facts alleged in the pleading are deemed to be true, however improbable they may be”].)  Allegations are to be liberally construed.  (Code Civ. Proc., § 452.)  A demurrer may be brought if insufficient facts are stated to support the cause of action asserted.  (Code Civ. Proc., § 430.10, subd. (e).)   

Leave to amend must be allowed where there is a reasonable possibility of successful amendment.  (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.)  The burden is on the complainant to show the Court that a pleading can be amended successfully.  (Ibid.)  

ANALYSIS

Demurrer

COA 7: Discrimination Based on Religious Affiliation

“The elements of a religious creed discrimination claim are that: the plaintiff had a bona fide religious belief; the employer was aware of that belief; and the belief conflicted with an employment requirement.” (Friedman v. S. Cal. Permanente Med. Grp. (2002) 102 Cal.App.4th 39, 45, as modified (Sept. 24, 2002).) 

Here, Plaintiff has not properly alleged a claim for religious creed discrimination. Plaintiff alleges that she “is a Christian and has sincerely held religious beliefs that prevented her from getting COVID vaccination,” that she “submitted a doctor’s note for the exemption but [defendants] refused to honor it”, and that Defendants discriminated against her “in refusing to acknowledge plaintiff’s religious exemption. . .” (FAC, ¶¶187, 198.)

The facts, as alleged, do not establish that Defendants were aware of Plaintiff’s religious belief. Plaintiff alleges that she submitted a doctor’s note for a COVID exemption, but Plaintiff does not state that the doctor’s note informed defendants of her religious belief nor that she separately notified Defendants of her religious belief.  It is also unclear why a doctor would have the background to comment on religious beliefs in such a note.

The FAC also fails to allege any facts explaining how Plaintiff’s belief conflicted with an employment requirement. While Plaintiff alleges that “that the vaccination requirement conflicted with” her religious beliefs, Plaintiff does not clearly allege whether the COVID vaccine was a requirement for her position.  

Thus, the demurrer to COA 7 is sustained with leave to amend.  

COA 8: Misrepresentation

“The elements of fraud, which give rise to the tort action for deceit, are (a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or ‘scienter’); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.” (Lazar v. Superior Court (1996) 12 Cal. 4th 631, 638.) “[F]raud must be pled specifically; general and conclusory allegations do not suffice. . . .This particularity requirement necessitates pleading facts which show how, when, where, to whom, and by what means the representations were tendered.” (Id. at p. 645 [internal quotation marks and ellipses omitted].)

The elements of negligent misrepresentation are: “(1) a misrepresentation of a past or existing material fact, (2) without reasonable grounds for believing it to be true, (3) with intent to induce another’s reliance on the fact misrepresented, (4) ignorance of the truth and justifiable reliance thereon by the party to whom the misrepresentation was directed, and (5) damages.” (B.L.M. v. Sabo & Deitsch (1997) 55 Cal.App.4th 823, 834.)   

Here, Plaintiff has not sufficiently plead the details surrounding the alleged misrepresentation. Plaintiff alleges that on October 13, 2019, Defendants offered Plaintiff a full-time position on their staff and promised her that she would become a shareholder. (FAC, ¶211.) However, Plaintiff does not state who specifically made the misrepresentation and their authority to speak, alleging only that “then current shareholders who’s name and identity is known to Defendants” promised Plaintiff that she would become a shareholder. (Id.) While Plaintiff alleges that “Stephen Harms and Dr Nguyen both refused to allow plaintiff to be included on the ballot for the shareholder vote” Plaintiff does not establish if or how these identified individuals made any misrepresentation. (FAC, ¶225.) It is also unclear whether the misrepresentation was made once or several times during several discussions. This is inadequate. (See Lazar, supra, 12 Cal.4th at p. 645 [discussing the standard for corporate misrepresentations.])

However, contrary to Defendants’ argument, Plaintiff has plead intent to induce reliance, and justifiable reliance. She alleges that when she took the position, she believed the representations were reliable because she knew of other male physicians who had received similar promises, which Defendants kept. 

Thus, the demurrer to COA 8 is sustained with leave to amend. 

Leave to Amend

Leave to amend must be allowed where there is a reasonable possibility of successfully stating a cause of action, even where parties do not request leave to amend in the trial court. (Schulz v. Neovi Data Corp. (2007) 152 Cal.App.4th 86, 92.)

Defendant argues that Plaintiff should not be granted leave to amend because had Plaintiff been able to plead the requisite facts, they would have been included in her pleading, especially given that the Court sustained Defendants’ Demurrer as to the Complaint on the same grounds.

Plaintiff argues that she has plead facts that put Defendants on notice, but Plaintiff cannot develop the claims further without Defendants engaging in discovery. Plaintiff contends that, for instance, Defendants know the names of the Board of Directors who allegedly engaged in fraudulent misrepresentation and have the Religious Exemption document that Plaintiff submitted. However, Plaintiff’s counsel declares that Defendants have refused to provide any discovery to Plaintiff on the basis of the pending demurrer, responding with the following objection to all discovery propounded by Plaintiff thus far:

Following the Court’s September 3, 2024, Order sustaining in Part Responding Party’s Demurrer and granting Responding Party’s Motion to Strike portions of Plaintiff’s Compliant (that were not rendered moot by the sustained Demurrer), Plaintiff served her First Amended Complaint on September 23, 2024, which is still deficient. Responding Party’s attempts to meet and confer with Plaintiff’s counsel over the deficiencies in her First Amended Complaint have gone ignored. Regardless, this case is not yet at issue and, as a result, discovery is premature. Responding Party objects to this request to the extent it seeks information protected from disclosure by the attorney-client privilege. Responding Party objects to this request to the extent it seeks information protected from disclosure by the attorney work-product rule.

(Gallagher Decl., ¶ 2.)

Here, the Court finds that leave to amend should be granted because there is a reasonable possibility of Plaintiff successfully stating a cause of action as discovery proceeds and the pleadings develop. Despite Defendants’ discovery responses contending that discovery is premature because “this case is not yet at issue”, this Court has not stayed discovery. California law permits discovery to proceed while the pleadings develop. (Code Civ. Proc., § 2025.210, subd. (b); 2030.020, subd. (b); 2031.020, subd. (b); Budget Finance Plan v. Superior Court (1973) 34 Cal.App.3d 794, 797-798.) Plaintiffs are entitled to discovery to develop their claims. (Mut. Life Ins. Co. v. Superior Court (1978) 80 Cal.App.3d 1, 12.) Accordingly, Defendants’ withholding of discovery is without justification.

Therefore, Plaintiff is granted 60 days leave to amend so that the parties may conduct discovery in good faith.

Motion to Strike

Defendants move to strike the following from the FAC:

1.      FAC, pp. 11:17-26 (disability discrimination),

2.      11:27-12:15 (disability discrimination),

3.      17:9-18 (interactive process),

4.      17:19-18:7 (interactive process),

5.      23:2-11 (reasonable accommodation),

6.      23:12-24:1 (reasonable accommodation),  

7.      28:19-28 (FEHA Retaliation),  

8.      29:1-29:17 (FEHA Retaliation),

9.      34:13-22 (Gender Discrimination), 

10.  34:23-35:11 (Gender Discrimination), 

11.  39:10-19 (1102.5 Retaliation),

12.  39:20-40:7 (1102.5 Retaliation),   

13.  43:13-22 (religious discrimination),

14.  43:23-44:11 (religious discrimination),

15.  48:4-13 (misrepresentation),

16.   48:14-28 (misrepresentation),   

17.  53:7-16 (wrongful termination),

18.  53:17-54:3 (wrongful termination),

19.  55:12 (prayer).  

Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof.  (Code Civ. Proc., § 435, subd. (b)(1).)  The court may strike out any “irrelevant, false, or improper matter inserted in any pleading.” (Code Civ. Proc., §437) Motions may also target pleadings or parts of pleadings that are not filed or drawn in conformity with applicable laws, rules, or orders. (Code Civ. Proc., §437 subd., (b).) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Code Civ. Proc., §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.) 

To succeed on a motion to strike punitive damages allegations, it must be said as a matter of law that the alleged behavior was not so vile, base, or contemptible that it would not be looked down upon and despised by ordinary decent people. (Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1228-1229.) The mere allegation that an intentional tort was committed is not sufficient to warrant an award of punitive damages. (Grieves v. Superior Ct. (1984) 157 Cal. App. 3d 159, 166.) Punitive damages are available in non-contract actions where a defendant is guilty of malice, fraud, or oppression. (Civ. Code, § 3294, subd. (c) [defining each term].) 

Regarding employer liability, an employer is not liable for the acts of an employee unless the employer had advanced knowledge of the unfitness of the employee and employed them with a conscious disregard of the rights or safety of others or ratified the conduct. (Civ. Code, §3294, subd. (b).) Regarding ratification, “[a] corporation is not deemed to ratify misconduct, and thus become liable for punitive damages, unless its officer, director, or managing agent actually knew about the misconduct and its malicious character. A ‘managing agent’ is an employee with authority to establish corporate policy, that is, the broad principles and rules of general application which govern corporate conduct.” (Cruz v. HomeBase (2000) 83 Cal.App.4th 160, 163l.)

Here, Plaintiff does not plead actionable conduct by any specific employee let alone a corporate officer, director or managing agent, such that Defendants are liable for that conduct. Plaintiff alleges that “Stephen Harms and Dr Nguyen both refused to allow plaintiff to be included on the ballot for the shareholder vote” and that “the aforementioned acts of EMPLOYER DEFENDANTS and its alter egos, committed by and through their managing agents, supervisors, and shareholders who’s name is known to defendants but has not been disclosed yet and will be subject of discovery but included Stephen Harms and Dr Nguyen among others were done with the knowledge of EMPLOYER DEFENDANTS...” However, the FAC does not allege how Stephen Harms and Dr. Nguyen are affiliated with Defendants, or how their actions gave rise to any of Plaintiff’s claims. Plaintiff has not made allegations linking individual conduct to the entity defendants. There are no allegations about any specific employee which could be imputed to the entity defendants. 

The motion to strike 43:13-22 (religious discrimination), 43:23-44:11 (religious discrimination), 48:4-13 (misrepresentation), and 48:14-28 (misrepresentation) is denied as moot based on the Court’s ruling on the demurrer.

The motion to strike is granted with leave to amend as to the remaining portions of the FAC.

CONCLUSION

Defendants’ Demurrer to the First Amended Complaint is SUSTAINED with 60 days leave to amend.

Defendants’ Motion to Strike is GRANTED in part and DENIED in part. The motion to strike 43:13-22 (religious discrimination), 43:23-44:11 (religious discrimination), 48:4-13 (misrepresentation), and 48:14-28 (misrepresentation) is DENIED as moot based on the Court’s ruling on the demurrer. In all other respects, the motion is GRANTED with 60 days leave to amend.

Moving party to give notice.