Response Reply

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

Phillip G. Vermont, SBN 132035 Dominique M. Jacques, SBN 290036 RANDICK O'DKA TOOLIATOS VERMONT & SARGKNT) LLP 5000 Hopyard Road, Suite 225 Pleasanton, California 94588 Telephone: (925) 460-3700 Facsimile: (925) 460-0969 Attorneys for Defendant, ALL TEMPERATURE SERVICE AIR CONDITIONING INC., a California business organization 10 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA 12 13 JEANNIE HUDSON, vs. Plaintiff, Case No.: 19CV360275 Assigned to the Hon. Thang Jit. Barrett Dept. 27 14 15 16 17 18 19 ALL TEMPERATURE SERVICE AIR CONDITIONING INC., a California business organization; BLACK CORPORATION; WHITE COMPANY; and DOES I to 100, inclusive, and each of them, Defendants. REPLY TO OPPOSITION TO DEMURRER TO PLAINTIFF'S FIRST AMENDED COMPLAINT Date: October 20, 2020 Time: 9:00 a.m. Dept: 21 Complaint Filed: December 13, 2019 First Amended Complaint Filed: July 24, 2020 20 21 22 23 24 25 26 27 28 I. INTRODUCTION Plaintiff has failed to address the various demurrable issues identified in All Temperature Service Air Conditioning Inc.'s (the "Company") Demurrer. Plaintiff instead elected to reaffirm her allegations, which are ineffective to survive Demurrer. On such grounds, the Company's Demurrer should be sustained. II. STATEMENT OF FACTS In summary, Plaintiff ceased coming to work due to work-related stress causing panic attacks. (FAC 4:5-9.) Plaintiff provided a doctor's note to the Company putting Plaintiff on leave 1 REPLY TO OPPOSITION TO DEMURRER TO PLAINTIFF'S FIRST AMENDED COMPLAINT - CASE NO, I 9CV360275 Electronically Filed by Superior Court of CA, County of Santa Clara, on 10/9/2020 2:42 PM Reviewed By: A. Nakamoto Case #19CV360275 Envelope: 5084793 19CV360275 Santa Clara - Civil A. Nakamoto from November 19, 2018 through January 7, 2019. (FAC 4:13-17, 24-25.) She did not return after that time. On January 10, 2019, Plaintiff provided a second doctor's note stating Plaintiff would stay on leave until March 7, 2019. (FAC 5:17-18, 12-14.) Plaintiff was discharged on February 28, 2019 after she failed to return to work. (FAC 6:24-26.) I. LAW 10 12 13 15 16 17 18 19 If a defect appears on the face of the pleading or is judicially noticed, demurrer is appropriate. (CCP )$430.30, 430.70.) When a plaintiff's cause of action appears to be completely barred on its face, a defendant* s demurrer is properly sustained. (SC Manufactured Homes, Inc. v. Liebert ("SC") (2008) 162 Cal.App.4th 68, 88, discussing statute of limitations bars.) The burden of showing a reasonable possibility of amendment "is squarely on the plaintiff." (Blank v. Airtvan (1985) 39 Cal.3d 311, 318.) Further, "[c]ontentions supported neither by argument nor by citation or authority are deemed to be without foundation and abandoned." (Anastos v. Lee (2004) 118 Cal.App.4th 1314, 1318 [failure to cite applicable authority to support contention resulted in contention being waived]; Badie v. Bank ofAmerica (1998) 67 Cal.App.4th 779, 784-785 [failing to raise a point or raising it and failing to support it with reasoned argument and citation to authority results in the point being treated a waived]; Bernard v. Harford Fire Ins. Co. (1991) 226 CaLApp.3d 1203, 1205 [the party has the duty to support its arguments by appropriate references].) A. PLAINTIFF HAS NOT PLED AN INTERFERENCE CLAIM IJNDER CFRA. 20 21 22 23 24 25 26 27 28 To plead a cause of action for interference under CFRA, a plaintiffmust plead facts establishing that: (1) she was entitled to CFRA leave, and (2) the employer interfered with or denied those rights. (Jaffe v Sedgwick Claims Mgmt. Servs. (C.D.Cal. July 24, 2017) 2017 LEXIS 116445, p. 19.) To be entitled to CFRA leave, a plaintiff must be eligible for leave and must take leave for the plaintiff s serious health condition that made her unable to perform the. functions of her job. (CACI 2600.) One of the eligibility requirements for CFRA leave is establishing that the employer employed 50 or more employees within 75 miles of the plaintiff s workplace. (CACI 2601.) Plaintiff has not pled any of these elements. REPLY TO OPPOSITION TO DEMURRER TO PLAINTIFF'S FIRST AMENDED COMPLAINT - CASE NO. 19CV360275 480001 dccx 1. Plaintiff has not properly pled that she was entitled to CFRA leave. The CFRA requires a "serious health condition*'or permitted leave and defines a "serious health condition" as an illness, injury, impairment, or physical or mental condition that involves either of the following: (A) In patient care in a hospital, hospice, or residential health care facility. (B) Continuing treatment or continuing supervision by a health careprovider.*'Govt. Code I'I 1245.2(c)(8).) Case law further requires that the serious health condition made the plaintiff unable to do her specific job, and not that it affected her ability to do her essential job functions, generally. (Lonicki v. Sutter Health Central (2008) 43 Cal.4'" 201, 214.) Plaintiff merely alleges that she was placed on "medical leave by her physician" for 10 work-related stress causing panic attacks and has failed to allege that her "medical condition" was a "serious health condition" entitling her to leave. Plaintiff has not established that her work- 12 related stress prevented her from performing her specific job at the Company. Plaintiffmakes no 13 effort to clarify that she had a "serious medical condition" which prevented her from performing 14 15 her job at the Company in her Opposition, and such argument is waived. The CFRA further is applicable only to employees of covered employers. An "employer" 16 for the purposes of the CFRA is defined as "[a]ny person who directly employed 50 or more 17 persons to perform services for a wage or salary." (Govt. Code $ 12945.2(c)(2)(A).) Plaintiff has only alleged that ATS employs five (5) or more persons, which is insufficient to render ATS an 19 20 "employer" under the CFRA. (FAC 3: 8.) Plaintiff fails to address at all this fatal definition oversight in her Opposition and such argument is waived. Plaintiff has not established that she 21 was entitled to CFRA leave and demurrer should be sustained. 22 2. The Company did not interfere with any CFRA rights. 23 The CFRA states an employee qualifying under CFRA may "take up to a total of 12 24 25 workweeks in any 12-month period for family care and medical leave." (Govt. Code $ 12945.2(a).) "The aggregate amount of leave taken under [CFRA] or the FMLA, or both,... 26 shall not exceed 12 workweeks in a 12-month period." (Govt. Code I'11245.2(s).) California 27 courts have confirmed that "the CFRA's reinstatement right only applies when an employee REPLY TO OPPOSITION TO DEMURRER TO PLAINTIFF'S FIRST AMENDED COMPLAINT - CASE NO. 19CV360276 4IOI r M 10 12 13 14 15 16 17 18 returns to work on or before the expiration of the 12-week protected leave." (Rogers v. County of Los Angeles (2011) 198 CaLApp.4'" 480, 488.) An employer does not violate the law when it terminates an employee which is unable to return to work at the conclusion of the 12-week protected period. (Netsendorfv. Levi Strauss dI Co. (2006) 143 Cal.App.4'" 509, 517-519; Spangler v. Federal Home Loan Bank ofDes Moines (8 Cir. 2002) 278 F.3d 847, 851.) A basic computation of time shows that Plaintiff's leave period expired roughly two (2) weeks before her termination date. Therefore, the Company could not have interfered with Plaintiff's statutorily protected leave time under CFRA when she was not terminated until well after such time had expired, and demurrer is appropriate. a. Holidays do not affect computatton of timefor CEEA. Plaintiff argues that somehow holidays extended her leave period under CFRA. Under the California Code of Regulations, Title 2, section 11090, the California legislature clarified the CFRA, stating, "If a holiday falls within a week taken as CFRA..., the week is nevertheless counted as a week of CFRA... leave." (2. Cal. Code Reg. $ 11090(c)(3).) Plaintiff's 12 protected workweeks had fully run at the time of termination, regardless of holidays. b. Vacation time is a separate issuefrom CFEAR protections. Plaintiff s claims that she allegedly was owed vested vacation time which she could have taken. Plaintiff s use or non-use of her vacation time is not a CFRA issue and does not affect the 19 20 21 running of the 12 workweeks granted under CFRA. In any event, Plaintiff has not alleged she ever notified the Company of any intent to use vacation time after her medical leave expired. B. PLAINTIFF HAS NOT PLED A RETALIATION CLAIM IINDER CFRA OR 22 FEHA. 23 24 25 26 27 To establish a cause of action for retaliation under CFRA, a plaintiff must plead facts establishing that: (I) 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 because 28 REPLY TO OPPOSITION TO DEMURRER TO PLAINTIFF'S FIRST AMENDED COMPLAINT - CASE NO. 19CV360276 400001 4 of her exercise ofher right to CFRA leave. (Moore v. Regents ofthe Univ. ofCat (2016) 248 2 Cal.App.4th 216, 248.) Plaintiff's Second Cause of Action for violation of the FEHA is based on "retaliation" for taking CFRA leave. As stated supra, Plaintiff has not established that the Company was an employer covered by CFRA or that Plaintiff was eligible to take CFRA leave. Plaintiff has not pled any of the other elements either and demurrer is appropriate. 1. Plaintiff has not pled that she took leave for a qualifying purpose. In Jackson v. Eaplan Higher Educ., LLC (2015) 106 F.Supp.3d 1118, 1121, the plaintiff was terminated despite her physician's extension of medical leave past the 12-week protected 10 period for work-related anxiety and stress. The plaintiff alleged that the defendant retaliated 12 against her by refusing to rehire her following the exercise of rights under CFRA. (Id. at p. 1121.) In finding no retaliation, the court observed that the plaintiff exhausted her CFRA leave .13 and her additional leave was not protected, the plaintiff's "medical condition" of work-related 14 stress was not a "disability" entitling her to accommodation under FEHA and the plaintiff was no 15 different than any other job applicant at the time she applied for her old job. (IdI, at p. 1133.) The 16 17 court refused to presume that a former employee who has no statutory right to being hired or rehired suffers an adverse job action simply because she is not hired or rehired. (IbidI) 18 Plaintiffhas alleged that she was suffering from work-related stress causing panic 19 attacks, which is not a recognized disability or serious medical condition covered by CFRA or 20 FEHA. (FAC 4:5-9.) Therefore, Plaintiff has failed to plead a qualifying purpose. 21 2. Plaintiff's termination was justified when she was unable to perform her 22 essential duties after her protected leave ended. 23 CFRA requires that a "serious health condition" "makes the employee unable to perform 24 25 26 the functions of the position of that employee." (Govt. Code Ij12945.2(c)(3)(C).) An employer is not required to reinstate an employee who cannot perform her job duties af'ter the expiration of the protected medical leave. (Neisendorf, supra, 143 Cal.App.4'" at p. 519.) An employer is not 27 prohibited from or subject to liability for discharging an employee who, because of the 28 REPLY TO OPPOSITION TO DEMURRER TO PLAINTIFF'S FIRST AMENDED COMPLAINT - CASE NO. 19CV360275 do001 d m 1 employee's medical condition, is unable to perform the employee's essential duties. (Govt. Code 2 II12940(a)(2).) An employee who cannot work according to her treating physician, may be 3 discharged as regular attendance at work is an essential job function for most jobs. (Pettus v. 4 Cole (1996) 49 Cal.App.4'" 402, 462-463.) An employee cannot assert an FEHA claim if she is 5 not qualified to do her job - an employee who cannot work is not "qualified". (Green v. State of 6 California (2007) 42 Cal.4'" 254, 263.) 7 As stated in Plaintiff's FAC, Plaintiff was not released by her physician to return to work 8 until March 7, 2019. (FAC 5:18.) In seeking medical leave, Plaintiff has admitted that she was 9 unable to perform the functions of her position until she was released by her physician on March 10 7, 2019. Plaintiff had no right to be reinstated to her position based on California law, as at the 11 end of Plaintiff s protected leave Plaintiff was not "qualified'* to return to her position due to her 12 "medical condition". The Company was not prohibited from discharging Plaintiff based upon her 13 lack of qualification for the position after Plaintiff s protective leave ended and Plaintiff failed to 14 return to work. (Pettus v. Cole, supra, at pp. 462-463.) 15 C. PLAINTIFF HAS NOT ESTABLISHED ANY OTHER VIOLATION OF THE 16 FEHA. 17 Plaintiff alleges, as her adverse employment action, that she was wrongly terminated 18 "before her leave period... had expired, in violation of Plaintiff s rights" due to age and weight 19 discrimination. (FAC 13:19-21.) Plaintiff claims in her Opposition that the discrimination shows 20 that the Company "never intended to allow Plaintiff to exercise her right to take the statutory 21 leave period." (Opposition 6:15-16.) It is quite clear that Plaintiff had, in fact, received her entire 22 statutory medical leave period, which expired in mid-February 2019, contradicting Plaintiff's 23 allegations. The Company had the right to terminate Plaintiff when she failed to return to work 24 after the exhaustion of her statutory leave period, regardless of her age or weight'. 25 26 28 'otably, weight is not a protected status under FEHA. (See generally, Govt. Code I 12940(a).) REPLY TO OPPOSITION TO DE~R TO PLAINTIFF'S FIRST AMENDED COMPLAINT - CASE NO. 19CV360276 d8000ldo 10 12 13 14 15 16 17 An employer is not prohibited from or subject to liability for discharging an employee who, because of the employee's medical condition, is unable to perform the employee's essential duties. (Govt. Code Ij12940(a)(2).) As discussed, supra, Plaintiffhas essentially admitted that she was unable to perform the functions of her position at the time of her termination, alter expiration ofher medical leave. The Company was not prohibited from discharging Plaintiff based upon her lack of qualification for the position after Plaintiff s protective leave ended and Plaintiff failed to return to work. (Pettus v. Cole, supra, at pp. 462-463.) Plaintiff s age does not shield her from these facts and demurrer is appropriate. Of note, Plaintiff was the accounting manager, reporting directly to the Company's president. (FAC 3:11-13.) Plaintiffperformed essential functions for the Company, including but not limited to handling accounting and payroll for the Company. Plaintiff left the Company before November 19, 2018 and had no plan to return until after March 7, 2019, a period of at least 109 days. (FAC 4:17, 5:18.) During such time, the Company employed a temporary employee, through a temp agency, to handle Plaintiff s essential functions. Such employment does not show an adverse action by the Company, which is forced to continue its operation without Plaintiff s services, due to Plaintiff s request for leave. D. PLAINTIFF HAS NOT ALLEGED ANY VIOLATION OF A FUNDAMENTAL PUBLIC POLICY. 19 20 21 22 23 24 25 26 27 The elements ofwrongful termination in violation of public policy are: (1) an employer- employee relationship, (2) a termination or other adverse employment action, (3) the termination violated a public policy, and (4) the termination caused the plaintiff's damages. (IIolmes v. General Dynamics Corp. (1993) 17 Cal.App.4'" 1418, 1426, fn. 8.) In Rogers v. County ofLos Angeles (2011) 198 CaLApp.4'80, 490, the court analyzed the policy considerations behind the CFRA and FMLA. The court ultimately concluded that "right to reinstatement expired when the 12-week protected CFRA leave expired." (Ibid.) When a plaintiff receives the full 12 workweeks of leave to which she was entitled, a CFRA interference claim fails as a matter of law. (Ibid.) REPLY TO OPPOSITION TO DEMURRER TO PLAINTIFF'S FIRST AMENDED COMPLAINT - CASE NO. 19CV360275 480001 4* * Plaintiff alleges, specifically, that "she was protected from discharge and entitled upon the expiration ofher leave, ifmedically capable ofperforming herj ob, to be returned to her former position or to an equivalent one." (Emphasis added; FAC 15:18-22.) Based on judicial notice, and like Rogers, Plaintiff received the full 12 workweeks of leave to which she was entitled. Plaintiff s right to reinstatement expired when she failed to return to her position thereafter. (See discussion, supra.) Plaintiffwas further unable to perform the functions of her position, based on her doctor's note, after expiration of her medical leave. The Company was not prohibited from discharging Plaintiff based upon her lack of qualification for the position after Plaintiff's 10 protective leave ended and Plaintiff failed to return to work. (Pettus v. Cole, supra, at pp. 462- 463.) Public policy and case law do not support any other outcome and demurrer should be 12 sustained. 13 E. PLAINTIFF'S CAUSE OF ACTION FOR FAILURE TO ENGAGE IN THE 14 INTERACTIVE PROCESS MUST FAIL. 15 In the FAC, Plaintiff specifically asserts a "Failure to Engage in the Interactive Process" 16 17 cause of action. (FAC 16:16.) Plaintiff asserts, "At no time did Defendant engage in the Interactive Process with Plaintiff..." (FAC 17:16-20.) Plaintiff's Opposition further refers to her 18 19 Fourth Cause of Action as "Failure to Engage in the Interactive Process". (Opposition 7:7.) A "failure to engage in the interactive process" cause of action specifically requires a request. 20 (CACI 2546.) Plaintiff has failed to allege that she requested any accommodation to support such 21 22 cause of action. Therefore, demurrer is appropriate. Further, to prevail on a claim for failure to engage in the interactive process, an employee 23 must identify a reasonable accommodation that would have been available at the time the interactive process should have occurred. (Scotch v. Art Institute ofCalifornia (2009) 173 25 Cal.App.4th 986, 1019-1019.) Plaintiff has failed to identify any available accommodation that 26 could have resolved Plaintiff s work-related stress and demurrer is appropriate. 27 28 REPLY TO OPPOSITION TO DEMURRER TO PLAINTIFF'S FIRST AMENDED COMPLAINT - CASE NO. 19CV360275 480001 docx I 1. Plaintiffs Fourth Cause of Action is Uncertain. 2 Despite alleging a "failure to engage in the interactive process", Plaintiff cites to 3 Government Code section 12940(m), governing reasonable accommodations and not the 4 interactive process. (FAC 17:20.) The Opposition also refers to Government Code section 5 12940(m) and CACI 2541, which do not refer to a failure to engage in the interactive process. 6 Plaintiff additionally refers to Cal. Code Regs. Tit. 2 I'I 7292.9, which is not a valid code section. 7 It appears that Plaintiff s Fourth Cause of Action is uncertain and demurrer is appropriate. 8 2. Plaintiff is unable to state a claim for reasonable accommodation. 9 "Two principles underlie a cause of action for failure to provide a reasonable 10 accommodation. First, the employee must request an accommodation. Second, the parties must 11 engage in an interactive process..." (Avila v. Continental Airlines, Inc. (2008) 165 Cal.App.4th 12 1237, 1252, internal citations omitted.) An employer is only required to accommodate known 13 disabilities. (Ibid.) The employee bears the burden of giving the employer notice of her 14 disability. (Ibid.) A duty to accommodate does not arise until the employer is "aware of 15 respondent's disability and physical limitations." (Ibid.) "The employee can't expect the 16 employer to read his mind and know he secretly wanted a particular accommodation and sue the 17 employer for not providing it. Nor is an employer ordinarily liable for failing to accommodate a 18 disability of which it had no knowledge..." (Id. at pp. 1252-1253, internal citations omitted.) 19 Plaintiff has not asserted that she requested any accommodation. But for such request, 20 Plaintiff is required to show that the Company actually knew of Plaintiff's "disability" and 21 limitations. Plaintiff was put on leave for work-related stress causing panic attacks. (FAC 4:5-9.) 22 Work-related stress is not deemed a "disability" entitling Plaintiff to any accommodations under 23 FEHA. (Jackson v. Kaplan Higher Educ., LLC, supra, 106 F.Supp.3d 1118, 1133.) Plaintiff also 24 has not alleged that she provided any further information about her conation to cause the 25 Company to be aware of her limitations. There is no duty to accommodate without such request 26 or knowledge and demurrer is appropriate. 27 28 REPLY TO OPPOSITION TO DEMURRER TO PLAINTIFF'S FIRST AMENDED COMPLAINT - CASE NO. 19CV360276 48000 I ddCX 1 II. THE COIJRT SHOULD SUSTAIN THE DEMURRER WITHOUT LEAVE TO AMEND 3 Plaintiff in unable to alter the start date for her leave, the period of time for her protected 4 leave, or when she was discharged. These facts ultimately bar each of Plaintiff's causes of action. 5 Plaintiff has further admitted that her "disability" was caused by work-related stress, which is not 6 considered a "disability" under case law. Accordingly, the Court should sustain the demurrer 7 without leave to amend. 10 amend. III. CONCLUSION For the reasons stated herein, this Court should sustain this Demurrer without leave to 11 Date: October 8, 2020 12 13 14 15 16 RANDICK O'DEA TOOLIATOS VERMONT k. SARGENT, LLP Dominique M. Jacques 17 18 19 20 21 22 23 25 26 27 REPLY TO OPPOSITION TO DEMURRER TO PLAINTIFF'S FIRST AMENDED COMPLAINT - CASE NO. 19CV360275 dd0001 doc 10 PROOF OF SERVICE I, Sue Betti, declare I am employed in Alameda County, State of California, am over the age of eighteen years, and not a party to the within action. My business address is 5000 Hopyard Road, Suite 225, Pleasanton, California 94588. I am readily familiar with the business practice for collection and processing of correspondence for mailing with the United States Postal Service and/or other overnight delivery. Under overnight delivery practice, all mailings are deposited in an authorized area for pick-up by an authorized express service courier the same day it is collected and processed in the ordinary course of business. On the date set forth below, I served the within; REPLY TO OPPOSITION TO DEMURRER TO PLAINTIFF'S FIRST AMENDED COMPLAINT on the parties in this action by placing a true copy thereof in a sealed envelope, and each envelope addressed as follows: 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 John B. McMorrow, Esq. Law Offices of John B. McMorrow 39650 Liberty St., Suite 250 Fremont, CA 94538-2226 iohn(kimcmorrowlawftrm.corn Attorneys for PlaintiffJeannie Hudson [x] (By U.S, Mail) I caused each such envelope to be served by depositing same, with postage thereon fully prepaid, to be placed in the United States Postal Service in the ordinary course of business at Pleasanton, California. (By Facsimile) The above-referenced document(s) was transmitted by facsimile transmission to the number(s) shown and the transmission was reported as complete and without error, I caused the transmitting facsimile machine to issue properly a transmission report, a copy of which is attached to this Declaration. [ ] (By Overnight Delivery) I caused each such envelope to be served by depositing same in an authorized area for pick-up by an authorized express service courier (UPS Overnight) the same day it is collected and processed in the ordinary course ofbusiness . [ ] (By Personal Service) I caused each such envelope to be delivered by hand to the persons named above. [x] (By Electronic Service) The above-referenced document was served by electronically mailing a true and correct copy through Randick O'Dea Tooliatos Vermont & Sargent LLP's electronic mail system, to the email addresses set forth as listed above, and in accordance with Federal Rules of Civil Procedure, Rule 5(b). I declare under penalty of perjury that the foregoing is true and correct and that this declaration was executed on October 9, 2020, at Pleasanton, Californi 26 27 Sue Betti, CCLS 28 PROOF OF SERVICE 400001 dccx