Order Submitted Matter

Cal. Super. - 6th Dist.December 13, 2019

\ooo‘qcxmhme N N {\J N N IQ N N N »-- >-~ h-A >-A H --- p-A H >-- H W q O\ LII -P DJ N ’-‘ O C 0° ‘4 O\ LII -h DJ N ‘-‘ O Order lssuea on Submitted Matter DEC 0 3 2020 Clerk of the Co z: Superior Co o CounWChra BY 9 pgww SUPERIOR COURT OF CALIFORNIA COUNTY 0F SANTA CLARA JEANNIE HUDSON, Case N0. 19-CV-360275 Plaintiff, ORDER RE: DEMURRER vs. ALL TEMPERATURE SERVICE AIR CONDITIONING INC, et a1., Defendants, The demurrer by defendant A11 Temperature Service Air Conditioning Inc. (“Defendant”) t0 the first amended complaint (“FAC”) of plaintiff Jeannie Hudson (“Plaintiff”) came on for hearing before the Honorable Thang N. Barrett 0n October 20, 2020, at 9:00 am. in Department 21. The matter having been submitted, the Coun ‘findq and orders as follows: Factual and Procedural Background This action arises out 0f an employment dispute. According t0 the allegations of the FAC, Defendant hired Plaintiff as an accounting manager in the summer of 201 1. (PAC, pp. 2:3- 1 ORDER RE: DEMURRER OOOO‘dGLh-JADJNH Ooflam-hWNHOOOOflOUIAth-JH 7 & 3:1 1-15.) Plaintiff reported directly to Defendant’s president. (Id. at p. 3:1 1-1 5.) Plaintiff was over forty years old at all relevant times. (Id. at p. 412-4.) In the summer and fall of 2018, Defendant attempted to adopt and implement a new computer software program to handle various accounting functions. (FAC, p. 3 : 17-1 9.) Plaintiff was responsible for implementing and adopting the program. (Id. at p. 3:19-24.) However, the program did not integrate well into the business processes and Plaintiff was not provided with the training needed to accomplish her task. (Ibid) During this time, Defendant’s president ridiculed Plaintiff and made harsh comments about her age, weight, and inability t0 learn the program. (FAC, pp. 3:24-26 & 9:10-13.) “As a result 0f the stress and long hours worked in attempting to implement the new software program and the comments made by [Defendant’s president] ..., Plaintiffl] became ill and began t0 suffer” panic attacks. (Id. at p. 4:5-10.) Plaintiff sought medical care for her condition and Defendant was aware of her condition. (Id. at p. 4: 1 0-12.) As her medical condition worsened over time, it constituted a disability. (FAC, p. 4: 1 3- 16.) On advice of her treating physician, Plaintiff went 0n medical leave beginning November 19, 201 8. (Id. at p. 4:16-25.) Plaintiff notified Defendant’s president 0f her medical leave via email and provided Defendant with a copy of her medical certification. (Id. at p. 5:2-10.) Plaintiff remained 0n medical leave until early January 2019. (1d. at p. 4:24-25.) Plaintiff obtained a medical note from her doctor dated January 10, 2019, which extended her leave t0 March 7, 2019. (PAC, p. 5:17-1 8.) Plaintiffprovided the note t0 Defendant’s president, who did object t0 the new return to work date. (Id. at pp. 5:18-6:15.) 2 ORDER RE: DEMURRER \DOONJQUIAWN 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 On February 28, 201 9, Defendant’s president sent a letter t0 Plaintiff, stating that she was being terminated and she had exhausted her leave under the Family Medical Leave Act 0n February 8, 2019. (FAC, p. 6:24-26.) Defendant made n0 attempt to contact Plaintiff between February 8 and 28, 2019. (Id. at p. 7:1-2.) Plaintiff alleges that she had not exhausted all 0f her leave under the California Family Rights Act (“CFRA”) because Defendant observed various holidays and she had accrued vacation time available. (Id. at p. 725-12.) Plaintiff further alleges Defendant failed to engage in the interactive process with her while she was 0n leave. (Id. at p. 7:22-24.) Instead, Defendant filled her position with a younger, less experienced co-worker. (1d. at pp. 7:24-82] 1.) Based on the foregoing allegations, Plaintiff filed the operative PAC against Defendant, alleging causes of action for: (1) violation of the CFRA; (2) age discrimination and retaliation in violation of the Fair Employment and Housing Act (“FEHA”); (3) wrongful discharge in violation of public policy; and (4) failure t0 engage in the interactive process in violation 0f the FEHA. On August 26, 2020, Defendant filed the instant demurrer to the FAC. Plaintiff filed an opposition on October 5, 2020. On October 9, 2020, Defendant filed a reply. . Discussion Defendant demurs to each and every cause 0f action of the FAC on the ground of failure t0 allege facts sufficient t0 constitute a cause 0f action. (See Code Civ. Proc., § 430. 10, subd. (6)) I. Request for Judicial Notice In connection wi'th its moving papers, Defendant asks the Court to take judicial notice of: (1) the FAC; (2) the fact that “[t]here are 12 weeks between November 19, 2018 and February 3 ORDER RE: DEMURRER \OOONJONUI#L;JI\J 10 11 12 13 14 15 16 17 18 19 20 22 23 24 25 26 27 28 10, 2019”; and (3) the fact that “[t]here are more than 12 weeks between November 19, 2018 and February 28, 2019.” (D’s RJN, pp. 1:27-2:1.) Although court records, such as the FAC, are generally proper subj ects ofjudicial notice (see Evid. Code, § 452, subd. ((1)), it is unnecessary t0 take judicial notice of the FAC because it is the pleading under review (see Paul v. Patton (2015) 235 Cal.App.4th 1088, 1091, fn. 1). Consequently, the Court declines to take judicial notice 0f the FAC. The Court also declines to take judicial notice of the purported fact that “[t]here are 12 weeks between November 19, 201 8 and February 10, 2019,” because February 11, 2019 is 12 weeks from November 19, 2018. Lastly, the Court will take judicial notice of the fact that there are more than 12 weeks between November 19, 2018 and February 28, 2019, as it is a fact that is not reasonably subject t0 dispute and is capable of immediate and accurate determination by resort t0 sources 0f reasonably indisputable accuracy. (See Evid. Code, § 452, subd. (h); see also Gould v. Maryland Sound Industries, Inc. (1995) 31 Cal.App.4th 1137, 1145.) Accordingly, Defendant’s request for judicial notice is DENIED IN PART and GRANTED IN PART. The request is DENIED as t0 the FAC and the purported fact that “[t]here are 12 weeks between November 19, 201 8 and February 10, 2019.” The request is GRANTED as t0 the fact that there are more than 12 weeks between November 19, 201 8 and February 28, 201 9. II. Legal Standard The function of a demurrer is t0 test the legal sufficiency 0f a pleading. (Trs. OfCapiral IWzolesale Elec. Etc. Fund v. Shearson Lehman Bros. (1990) 221 Cal.App.3d 617, 621 .) 4 ORDER RE: DEMURRER oxoooxqomhwmhq NNNNNNNNNflv-tfiu-a-a-‘HMHH mflathN-‘OQOO‘QCNMAUJNH Consequently, “ ‘[a] demurrer reaches only to the contents of the pleading and such matters as may be considered under the doctrine ofjudicial notice’ [citation].” (Hilltop Properties, Inc. v. State (1965) 233 Cal.App.2d 349, 353; Code Civ. Proc., §430.30, subd. (a).) “ ‘It is not the ordinary function of a demurrer to test the truth of the allegations [in the challenged pleading] or the accuracy with which [the plaintiff] describes the defendant’s conduct. .’ [Citati0n.] Thus, ‘the facts alleged in the pleading are deemed to be true, however improbable they may be. [Citation.]’ [Citations.]” (Align Technology, Inc. v. Tran (2009) 179 Cal.App.4Lh 949, 958.) III. First Cause 0f Action Defendant argues the first cause 0f action for violation of the CFRA does not allege sufficient facts t0 state a claim because Plaintiff does not allege facts showing that it is an employer covered by the CFRA 0r that her alleged medical condition constituted a serious health condition. Defendant also contends the claim fails because Plaintiff received the entire 12 weeks of leave she was entitled t0 under the CFRA before she was discharged. Defendant further contends that Plaintiff was unable to perform the essential duties of her job after the expiration 0f the protected medical leave and, therefore, it was justified in terminating her employment. “In 1991, the Legislature enacted the CFRA. The CFRA, which is contained within the FEHA, is intended to give employees an opportunity to take leave from work for certain personal or family medical reasons without jeopardizing job security.” (Faust v. Cal. Portland Cement C0. (2007) 150 Cal.App.4th 864, 878, internal citations and quotation marks omitted.) Under the CFRA, an employee is entitled to a leave of absence because of: (1) a serious health condition of the employee; (2) a serious health condition 0f a child, spouse or parent; (3) the birth of a child; 5 ORDER RE: DEMURRER OWOOQQM¥WNH NNNNNNNNM-Ip-tn-Ig-np-‘Hu-Ip-o-IH or (4) the adoption and placement of a child for foster care. (Gov. Code, § 12945.2, subd. (0(3)) “The CFRA makes it unlawful for an employer of 50 0r more persons ‘to refuse t0 grant a request by an employee’ for family care and medical leave and ‘to interfere with, restrain, 0r deny the exercise 0f, 0r the attempt t0 exercise, any right’ provided by the CFRA.” (Sofia v. Univision Radio L.A., Inc. (2016) 5 Ca1.App.5th 570, 600-601 .) There are two broad categories 0f claims under the CFRA: (1) interference claims in which an employee asserts that the employer has denied 0r otherwise interfered with substantive rights under the CFRA (e.g., leave denial); and (2) retaliation/discrimination claims in which it is asserted that the employer has discriminated against an employee for engaging in activity protected under the CFRA (e.g., discriminating against an employer for past use 0f leave). (See, e.g., Xin Liu v. Amway Corp. (9th Cir. 2003) 347 F.3d 1125, 1133, fn. 7; Gov. Code, § 12945.2, subd. (1)(1).) As Defendant persuasively argues, Plaintiff fails to allege sufficient facts to state a claim for violation of the CFRA. First, Plaintiff does not allege facts demonstrating that Defendant is an employer covered by the CFRA. Under the CFRA, an “employer” means either of the following: (1) any person who directly employs 50 or more persons t0 perform services for a wage 0r salary; 0r (2) the state, and any political or civil subdivision 0f the state and cities. (Gov. Code, § 12945.2, subd. (c)(2).) In the FAC, Plaintiff alleges Defendant is a business organization that “regularly employs five or more persons in the State of California ....” (FAC, p. 3:4-9.) Because there are no factual allegations showing that Defendant employs 50 0r more persons, Plaintiff has not established that Defendant is an employer covered by the CFRA. Second, Plaintiff does not allege facts showing that her alleged medical condition (i.e., panic attacks) constituted a serious health condition. Under the CFRA, a “serious health 6 ORDER RE: DEMURRBR ONDOO‘QCNU’ILUJNH {‘3 N N N N N N N [\J t-‘ )-l r-I >- --I p-n >-n p-d h-I >-A m \l o\ LII A U3 N '-‘ O o m \J a LII L UJ N ’-‘ condition” means an illness, injury, impairment, or physical 0r mental condition that involves either of the following: (1) inpatient care in a hOSpital, hOSpice, 0r residential health care facility; 0r (2) continuing treatment 0r continuing supervision by a health care provider. (GOV. Code, § 12945.2, subd. (c)(8).) In the FAC, Plaintiff alleges that she suffered from panic attacks and sought medical care for her condition. (FAC, p. 4:5-12.) However, Plaintiff does not allege that the condition involved inpatient care in a hospital, hospice, 0r residential health care facility or continuing treatment 0r continuing supervision by a health care provider. Thus, Plaintiff does not demonstrate that her alleged condition constituted a serious health condition under the CFRA. Third, the allegations 0f the FAC demonstrate that Plaintiff received 12 weeks of leave as required under CFRA. The first cause 0f actionz as currently pleaded, is based on the allegation that Defendant terminated Plaintiff’s employment before the expiration of the statutory leave period. (FAC, p. 1 1:12-15.) Under the CFRA, a qualifying employee is entitled to 12 workweeks of medical leave in a 12-month period. (Gov. Code, § 12945.2, subd. (3).) In the PAC, Plaintiff alleges that she was on medical leave beginning November 19, 201 8, and she was terminated more than 12 weeks later 0n February 28, 2019. (FAC, p. 4:16-25.) Thus, the allegations 0f the FAC show that Plaintiff received 12 weeks of leave as required under CFRA. For these reasons, Defendant’s demurrer to the first cause of action 0n the ground of failure t0 allege sufficient facts t0 constitute a cause of action is SUSTAINED with leave t0 amend within 10 days of the filing 0f this order. IV. Second Cause 0f Action Defendant acknowledges the second cause of action is predicated 0n two separate and distinct acts 0f alleged misconduct: (1) retaliation in violation 0f the FEHA; and (2) age 7 ORDER RE: DEMURRER hm“) \DOOx-JQLJI 10 11 12 13 14 15 16 17 18 19 20 21 22 24 25 26 27 28 discrimination in violation of the FEHA. As is relevant here, Defendant argues Plaintiff fails to state a claim for age discrimination in violation of the FEHA because Plaintiff’s medical leave expired at the time of her-termination and, therefore, she did not have a statutory right t0 reinstatement. (D’s Mem. Ps. & As., pp. 7:22-82.) Defendant contends that “Plaintist age does not protect her position when [she] failed to return to work after expiration 0f her protected leave period.” (Ibid) “[A] prima facie case, of age discrimination arises when the employee shows (1) at the time of the adverse action he or she was 40 years 0f age or older, (2) an adverse employment action was taken against the employee, (3) at the time of the adverse action the employee was satisfactorily performing his or her job and (4) the employee was replaced in his position by a significantly younger person.” (Hersant v. Dept. ofSocial Services (1997) 57 Ca1.App.4th 997, 1003; see Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 3 17, 355.) In the FAC, Plaintiff alleges she was 40 years of age 0r older at the time she was terminated, she was satisfactoxily performing her job, and she was replaced by a significantly younger person. (FAC, pp. 3:13-15, 422-4, 6:24-26, 7:24-8:1 1, 9:14-17, 13:23-25, & 1426-12.) These allegations arc sufficient to state a claim for age discrimination of the FEHA. Defendant cites no legal authority, and the Court is aware of none, providing that Plaintiff cannot state a claim for age discrimination simply because her medical leave under CFRA had expired at the time she was terminated. (See Badie v. Bank ofAmerica (1998) 67 Cal.App.4th 779, 784-785 [“When [a party] fails t0 raise a point, or asserts it but fails t0 suppon it with reasoned argument and citations to authority, we treat the point as waived.”]; see also Schaefler Land Trust v. San Jose City Council (1989) 215 Cal.App.3d 612, 619, fn. 2 [“[A] point which is merely suggested 8 ORDER RE: DEMURRER OOWQONUILUJN 11 12 13 14 15 16 17 18 19 20 21 22 23 24 ‘25 26 27 28 by a party’s counsel, with no supporting argument 0r authority, is deemed t0 be without foundation and requires no discussion.”].) Because the second cause 0f action states a claim for age discrimination under the FEHA, Defendant’s demurrer to the cause 0f action is not welI-taken. (See PHH, Inc. v. Super. Ct. (1995) 33 Cal.App.4th 1680, 1682 [a demurrer cannot be granted as to only a portion ofa claim].) Accordingly, Defendant’s demurrer t0 the second cause of action 0n the ground 0f failure t0 allege sufficient facts t0 constitute a cause 0f action is OVERRULED. V. Third Cause of Action Defendant argues the third cause of action for wrongful discharge in violation of public policy is predicated the allegation that Plaintiff was terminated while she was 0n protected medical leave under CFRA and, therefore, the claim fails for the same reasons as the first cause 0f action. The elements of a cause 0f action for wrongful termination in violation of public policy are: an employment relationship between the plaintiff and defendant; the plaintiff‘s employment was actually terminated 0r constructively terminated; the termination violated public policy; and the plaintiff sustained damages as a result of the termination. (See Barbee v. Household Automotive Finance Corp. (2003) 113 Cal.App.4th 525, 533; see also Holmes v. General Dynamics Corp. (1993) I7 Cal.App.4th 1418, 1426 (Holmes).) The plaintiff must show that he or she was terminated in violation of a policy that is “(1) delineated in either constitutional or statutory provisions; (2) ‘public’ in the sense that it ‘inures t0 the benefit of the public’ rather than serving merely the interests of the individual; (3) well established at the time 0f the 9 ORDER RE: DEMURRER OKDOONJQU‘I-hWN 11 12 I3 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 discharge; and (4) substantial and fundamental.” (Stevenson v. Super. Ct. (1997) 16 Cal.4th 880, 894; see Holmes, supra, 17 Cal.App.4th at p. 1426 [“To recover in tort for wrongful discharge in Violation of public policy, the plaintiff must show the employer violated a public policy affecting ‘society at large rather than a purely personal 0r proprietary interest of the plaintiff 0r employer.’ [Citations.]”].) Here, the public policy identified in the third cause of action is Plaintiff’s right to medical leave under CFRA. (FAC, pp. 15:1 8-1627.) However, as explained above, Plaintiff does not allege facts demonstrating that Defendant is an employer covered by the CFRA. (See Gov. Code, § 12945.2, subd. (c)(2).) Additionally, Plaintiff does not allege facts establishing that her medical condition (i.e., panic attacks) constituted a serious health condition under the CFRA. (See Gov. Code, § 12945.2, subd. (c)(8).) Consequently, Plaintiff has not pleaded sufficient facts showing that she was entitled to medical leave under CFRA. For these reasons, Defendant’s demurrer to the third cause 0f action on the ground 0f failure to allege sufficient facts t0 constitute a cause of action is SUSTAINED with leave to amend within 10 days 0f the filing of this Order. VI. Fourth Cause 0f Action Defendant argues the fourth cause 0f action for failure to engage in the interactive process'in violation 0f the FEHA fails to state a claim because Plaintiff does not allege that she made any request for a reasonable accommodation t0 perform her job. “The FEHA imposes on employers the duty reasonably t0 accommodate their employees’ disabilities.” (Cuiellette v. City ofLos Angeles (201 1) 194 Cal.App.4th 757, 766; Gov. Code, § 12940, subd. (m) [“Under section 12940, it is an unlawful employment practice ‘to fail t0 make 10 ORDER RE: DEMURRER #9353 \OOOQOleI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 28 reasonable accommodation for the known physical or mental disability of an applicant or employee’ unless the employer demonstrates doing so would impose an undue hardship.”].) The essential elements 0f a failure to accommodate claim are: (1) the plaintiff has a disability covered by the FEHA; (2) the plaintiff is a qualified individual (i.e., he or she can perform the essential functions of the position); and (3) the employer failed t0 reasonably accommodate the plaintiff‘s disability. (Wilson v. County 0f0range (2009) 169 Cal.App.4th 1185, 1192.) Additionally, “[u]nder FEHA, an employer must engage in a good faith interactive process with the disabled employee t0 explore the alternatives to accommodate the disability. [Citations.] FEHA requires an infomal process with the employee t0 attempt to identify reasonable accommodations, not necessarily ritualized discussions. [Citation] [fl To prevail on a claim for failure t0 engage in the interactive process, the employee must identify a reasonable accommodation that would have been available at the time the interactive process occurred.” (Nealy v. City ofSanta Monica (2015) 234 Ca1.App.4th 359, 379; Scotch v. Arr Institute 0f California (2009) 173 Cal.App.4th 986, 1003; Gov. Code, § 12940, subd. (n) [“The FEHA makes it unlawful for an employer ‘to fail to engage in a timely, good faith, interactive process with the employee 0r applicant to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee 0r applicant with a known physical 0r mental disability or known medical condition.”].) Contrary to Defendant’s assertion otherwise, Plaintiffs claim for failure to engage in the interactive process does not fail, as a matter 0f law, simply because Plaintiff does not expressly allege that she requested reasonable accommodation. (Alejandro v. ST Micro Electronics, Inc (ND. Cal. 2015) 129 F.Supp.3d 898, 910-911 (Alejandra).) “[T]he ‘suggestion that the disabled employee must first come forward and request a specific accommodation before the 11 ORDER RE: DEMURRER employer has a duty to investigate such accommodation’ ”0r engage in the interactive process is “ ‘without merit.’ ” (Id. at p. 91 1.) “[A]n employer who knows 0f the disability of an employee has ‘an affirmative duty’ to make reasonable accommodations for that employee’s disability” and engage in the interactive process. (Ibid) Nevertheless, “[a]n employee cannot demand clairvoyance 0f his employer.” [Citation] “It is an employee's responsibility to understand his 0r her own physical or mental condition well enough to present the employer at the earliest opportunity with a concise list of restrictions which must be met to accommodate the employee.” [Citation.] At the same time, “[e]mp10yees do not have at their disposal the extensive information concerning possible alternative positions 0r possible accommodations which employers have,” so employees do not bear the entire burden of identifying reasonable accommodations. [Citation] “Holding a job open for a disabled employee who needs time to recuperate 0r heal is in itself a form 0f reasonable accommodation and may be all that is required where it appears likely that the employee wilI be able to return t0 an existing position at some time in the foreseeable future.” [Citation.] (Alejandro, supra, 129 F.Supp.3d at p. 91 1.) Here, Plaintiff alleges she informed Defendant 0f her alleged medical condition. (FAC, pp. 4:10-5: 1 0.) Plaintiff alleges and Defendant does not dispute, for purposes of this demurrer, that Plaintiff‘s medical condition constituted a disability. Thus, the act of informing Defendant about the disability triggered an affirmative duty for Defendant t0 provide reasonable accommodation t0 Plaintiff and engage in the interactive process. (See Alejandro, supra, 129 F.Supp.3d at p. 91 1 .) Additionally, Plaintiff alleges that she requested leave from work for her medical condition through March 7, 201 9; in other words, Plaintiff requested an accommodation in the form ofleave from work. (See ibid; see also FAC, pp. 4:10-623.) Because Plaintiff alleges that she told Defendant she would need t0 take time off of work, Plaintiff met her responsibility to alert Defendant to the type 0f accommodation she required. (See Alejandro, supra, 129 F.Supp.3d at p. 91 1 .) Therefore, Defendant has not shown that the fourth cause of action fails to state a claim. 12 ORDER RE: DEMURRER \OOOMQLJI-fiUJNH N N M N N IQ N N [\J H p-a v-b p-I u-I p-n p-A n-A .-a y-A 00 fl O\ K)! h L») N H O \D 00 NJ C\ LII -b DJ N F-‘ O Accordingly, Defendant’s demurrer t0 the fourth cause of action on the ground 0f failure to allege sufficient facts to constitute a cause of action is OVERRULED. DATED; L2 / 3,, ”MW // Thang N. Banett Judge 0fthe Superior Court 13 ORDER RE: DEMURRER SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA DOWNTOWN COURTHOUSE 191 NORTH FIRSTSTREET SANJOSB. CALIFORNIA 95113 CIVIL DIVISION RE: Jeannie Hudson vs All Temperature Service Air Conditioning Inc. et al Case Number: 190V360275 $9 PROOF OF SERVICE ORDER RE: DEMURRER was delivered to the parties listed below the above entitled case as set forth in the sworn declaration betow. If you. a party represented by you. or a witness to be called on behalf of that party need an accommodation under the American with Disabilities Ad. please contact the Coun Administrator's office at (406) 882-2700, or use the Coun's TDD line (408) 882-2690 or the VoicefrDD California Relay Service (800) 735-2922. DECLARATION 0F SERVICE BY MAIL: | declare that l served this notice by enclosing a true copy in a sealed envelope, addressed to each person whose name is shown below, and by depositing the envelope with postage fully prepaid, En the United States Mail at San Jose, ‘ CA 0n December 04, 2020. CLERK OF THE COURT. by Shantel Hernandez. Deputy. cc: John B McMorrow 39650 Liberty Street Suite 250 Fremont CA 945382226 Phillip G Vermont 5000 Hopyard Rd Suite 225 Pleasanton CA 94588 CW-9027 REV 12/08/16 PROOF OF SERVICE