Memorandum Points and Authorities

Cal. Super. - 6th Dist.June 2, 2021

BOHM LAW GROUP, INC. 5205 KEARNY VILLA WAY, SUITE 105 SAN DIEGO, CALIFORNIA 92 1 23 \DOONO‘xtJl-PUJNH NNNNNNNNNHHp-tu-tu-th-tt-tt-tt-b-t OONO‘NUl-PUJNHOKDOONO‘NUl-PWNHO 21 CV383442 Santa Clara - Civil Lawrance A. Bohm (SBN: 208716) lbohm@b0hmlaw.c0m Kelsey K. Ciarimboli (SBN: 30261 1) kciarimboli@b0hmlaw.c0m BOHM LAW GROUP, INC. 4600 Northgate Boulevard, Suite 210 Sacramento, California 95834 Telephone: 866.920.1292 Facsimile: 916.927.2046 Email: b12000800@b0hmlaw.com Attorneys for Plaintiff, HEATHER COLBERT, M.D., Ph.D. Electronically Filed by Superior Court of CA, County of Santa Clara, on 12/30/2021 4:35 PM Reviewed By: R. Nguyen Case #21 CV383442 Envelope: 79621 14 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA HEATHER COLBERT, M.D., Ph.D. Plaintiff, V. COUNTY OF SANTA CLARA; and DOES 1 through 50, inclusive, Defendants. Case No.2 21CV 383442 PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT’S DEMURRER TO PLAINTIFF’S COMPLAINT Date: January 13, 2022 Time: 9:00 am. Dept: 20 Judge: Hon. Socrates Manoukian Action Filed: June 2, 2021 Trial Date: TBD Plaintiff Heather Colbert, M.D., Ph.D., hereby respectfully submits the following memorandum 0f points and authorities in opposition t0 Defendant’s Demurrer to Plaintiff’s Complaint. /// /// /// /// 1 Plaintiff’s Memorandum of Points and Authorities in Opposition t0 Defendant’s Demurrer to Plaintiff’s Complaint Colbert v. County ofSanta Clara Case N0.: 21CV383442 Lawrance A. Bohm, Esq. Kelsey K. Ciarimboli, Esq. . Nguyen BOHM LAW GROUP, INC. 5205 KEARNY VILLA WAY, SUITE 105 SAN DIEGO, CALIFORNIA 92123 KOOONONUI-PUJNH NNNNwwwwwb-Ab-Ab-Ab-Ab-Ab-Ab-Ab-Ab-Ab-A OONONMJ>UJNHOKOOONONMJ§WNHO TABLE OF CONTENTS I. INTRODUCTION .................................................................. II. STATEMENT OF RELEVANT FACTS ............................... III. LEGAL STANDARD ............................................................ IV. LEGAL ARGUMENT ............................................................ ........................................... 5 ........................................... 5 ........................................... 7 ........................................... 8 A. Plaintiff’s Complaint Alleges She took Medical Leave Due t0 Her Stress and Headaches ................................................................... ........................................... 8 B. Plaintiffs Stress and Stress-Related Headaches Qualify as a Serious Health Condition Entitling Her t0 Leave under the CFRA ............................................. 10 C. Plaintiffs FEHA Disability Discrimination Cause 0f Action is Based 0n a Qualified Medical Disability ............................................................................... 11 D. PlaintiffAlleges Sufficient Facts t0 Sustain the Failure t0 Engage in an Interactive Process Cause 0f Action ...................................................................................... 12 E. PlaintiffAlleges Sufficient Facts t0 Sustain the Failure t0 Accommodate Cause 0f Action .................................................................................................................. 1 3 V. LEAVE TO AMEND ...................................................................................................... 14 VI. CONCLUSION ................................................................................................................ 1 5 2 Plaintiff’s Memorandum of Points and Authorities in Opposition t0 Defendant’s Demurrer to Plaintiff’s Complaint Colbert v. County ofSanta Clara Case N0.: 21CV383442 Lawrance A. Bohm, Esq. Kelsey K. Ciarimboli, Esq. BOHM LAW GROUP, INC. 5205 KEARNY VILLA WAY, SUITE 105 SAN DIEGO, CALIFORNIA 92123 KOOONONUI-PUJNH NNNNwwwwwb-Ab-Ab-Ab-Ab-Ab-Ab-Ab-Ab-Ab-A OONONMJ>UJNHOKOOONONMJ§WNHO TABLE OF AUTHORITIES Cases Aguirre v. California, (ND. Cal. NOV. 16, 2017) No.16-CV-05564-HSG 2017, WL 5495953 ............................. 10, 12 Artega v. Brink’s, Ina, (2008) 163 Cal.App.4th 327 ................................................................... 11 Bacon v. Wahraftig (1950) 97 Cal.App.2d 599 ............................................................................. 8 Blank v. Kirwan (1985) 39 Cal.3d 3 11 .......................................................................................... 8 Community Cause v. Boatwright (1981) 124 Cal.App.3d 888 .................................................... 14 Courtesy Ambulance Serv. V. Superior Court (1992) 8 Cal.App.4th 1504 ................................... 8 Donabedian v. Mercury Ins. C0. (2004) 116 Cal.App.4th 968 ..................................................... 8 Faust v. California Portland Cement C0. (2007) 150 Cal.App.4th 864 ........................... 9, 10, 12 Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34 ...................................................... 12 Harvey v. City ofHoltville (4th District 1969) 271 Cal.App.2d 816 ............................................. 8 Lonicki v. Sutter Health Central, (2008) 43 Cal.4th 201 ....................................................... 10, 12 McDonald v. Superior Court (1986) 180 Cal.App.3d 297 .......................................................... 14 Nadaf-Rahrov v. The Neiman Marcus Group, Inc. (2008) 166 Cal.App.4th 952 ....................... 13 Nelson v. United Technologies (1997) Cal.App.4th 597 ............................................................... 8 Quelimane C0., Inc. v. Stewart Title Guar. C0. (1998) 19 Cal.4th 26 .......................................... 8 Saunders v. Superior Court (1994) 27 Cal.4th 832 ....................................................................... 8 Scotch v. Art Institute ofCalifomia (2009) 173 Cal.App.4th 986 ............................................... 12 Scott v. Indian Wells (1972) 6 Cal.3d 541 ................................................................................... 14 Southern California Thrift & Loan v. Sylvania Elec. Products, Inc. (1967) 248 Cal.App.2d 642 ....................................................................................................... 8 Swanson v. Morongo Unified School District (2014) 232 Cal.App.4th 954 ......................... 13, 14 Statutes Code 0f Civil Procedure section 430. 10 ........................................................................................ 7 Government Code section 12900 et seq. ....................................................................................... 8 Government Code section 12926, subdivision U)(l) ................................................................... 11 3 Plaintiff’s Memorandum of Points and Authorities in Opposition t0 Defendant’s Demurrer t0 Plaintiff’s Complaint Lawrance A. Bohm, Esq. Colbert v. County ofSanta Clara Kelsey K. Ciarimboli, Esq. Case N0.: 21CV383442 BOHM LAW GROUP, INC. 5205 KEARNY VILLA WAY, SUITE 105 SAN DIEGO, CALIFORNIA 92123 KOOONONUI-PUJNH NNNNwwwwwb-Ab-Ab-Ab-Ab-Ab-Ab-Ab-Ab-Ab-A OONONMJ>UJNHOKOOONONMJ§WNHO Government Code section 12926, subdivision (j)(1)(B) ............................................................. 11 Government Code section 12926, subdivision (j)(1)(C) ............................................................. 11 Government Code section 12926, subdivision (k)(3)-(5) ............................................................ 11 Government Code section 12926, subdivision (m)(1)(B)(ii) ...................................................... 11 Government Code section 12940, subdivision (a) ....................................................................... 11 Government Code section 12940, subdivision (1n) ..................................................................... 13 Government Code section 12945.2 subdivision (a) ....................................................................... 8 Government Code section 12945.2 subdivision (c)(2(A) .............................................................. 8 Government Code section 12945.2, subdivision (c)(3)(C) .......................................................... 10 Government Code section 12945.2, subdivision (c)(8) ............................................................... 10 Regulations California Code 0f Regulations, title 2, section 7297.10 ............................................................. 10 California Code 0f Regulations, title 2, section 7297.4, subdivision (a)(l) .................................. 9 California Code 0f Regulations, title 2, section 7297.4, subdivision (a)(1)(A) ............................. 9 Code 0f Federal Regulations, title 29, section 825.1 14(0) .......................................................... 10 4 Plaintiff’s Memorandum 0f Points and Authorities in Opposition t0 Defendant’s Demurrer t0 Plaintiff’s Complaint Lawrance A. Bohm, Esq. Colbert v. County ofSanta Clam Kelsey K. Ciarimboli, Esq. Case N0.: 21CV383442 BOHM LAW GROUP, INC. 5205 KEARNY VILLA WAY, SUITE 105 SAN DIEGO, CALIFORNIA 92123 KOOONONUI-PUJNH NNNNwwwwwb-Ab-Ab-Ab-Ab-Ab-Ab-Ab-Ab-Ab-A OONONMJ>UJNHOKOOONONMJ§WNHO I. INTRODUCTION Plaintiff brought eleven causes 0f action in her complaint against Defendant. The target 0f Defendant’s demurrer are causes 0f action five through eight. Defendant’s demurer t0 these causes 0f action should be overruled for several reasons. First, Plaintiff stated she took medical leave in the complaint. Second, Plaintiffs stress and stress-related severe headaches rose t0 the level 0f medical disability for which she took medical leave. Third, Defendant failed t0 engage in the interactive process with Plaintiffby moving her t0 an unsafe office after she returned t0 work from her leave, thus chilling her from seeking future accommodation, and by failing t0 inquire as t0 what form 0f accommodation she still needed. Finally, Defendant failed t0 accommodate Plaintiff by simultaneously demoting her and moving her t0 an unsafe office upon her return t0 work from her leave. II. STATEMENT OF RELEVANT FACTS Defendant employed Plaintiff primarily as an outpatient psychiatrist in the Behavioral Health Department at Defendant’s Valley Medical Center (“VMC”). (Compl. 1W 6 & 450.) In 0r around July 2015, Defendant appointed Plaintiff as the new Emergency Psychiatry Services (“EPS”) Chief. (Compl. 11 26.) Plaintiff reported t0 Dr. Michael Meade (“Dr. Meade”), who in turn reported t0 Dr. Tiffany H0 (“Dr. H0”). (Compl. 11 29.) At this time, Plaintiff had a very good relationship with many 0f her colleagues, some 0fwhom stated her presence “help[ed] the morale 0f everyone” in EPS. (Compl. 11 46.) On 0r about February 3, 2017, Defendant began t0 slowly corrupt Plaintiff’s professional relationships, physical health, and mental health when Dr. Meade instituted a controversial bed control function for EPS and inpatients at Defendant’s Barbara Arons Pavilion (“BAP”) Acute Psychiatrist Hospital. Under this bed control function, Dr. Meade 0r Plaintiff pre-approved patients before they could be admitted t0 BAP. (Compl. 11 47.) Dr. Meade assigned Plaintiff additional duties, such as ensuring patients admitted t0 BAP were properly prescribed psychiatric medication, had chart notes documenting acuity, and were medically clear for admission. (Id.) On 0r about February 15, 2017, Dr. Meade sent out another directive t0 staff, which in part gave Plaintiff the exclusive role of screening and authorizing patient transfers from the medicine units 5 Plaintiff’s Memorandum of Points and Authorities in Opposition t0 Defendant’s Demurrer to Plaintiff’s Complaint Colbert v. County ofSanta Clara Case N0.: 21CV383442 Lawrance A. Bohm, Esq. Kelsey K. Ciarimboli, Esq. BOHM LAW GROUP, INC. 5205 KEARNY VILLA WAY, SUITE 105 SAN DIEGO, CALIFORNIA 92123 KOOONONUI-PUJNH NNNNwwwwwb-Ab-Ab-Ab-Ab-Ab-Ab-Ab-Ab-Ab-A OONONMJ>UJNHOKOOONONMJ§WNHO t0 EPS, but only if the patients met acuity standards. (Compl. 11 52.) On 0r about March 24, 20 1 7, Dr. Meade issued another directive t0 acute services doctors regarding patient admittance t0 BAP for non-acute patients. Under this new directive, patients could be admitted t0 BAP only if there was a “high-level approval for a BAP exception admit” and to contact either himself or Plaintiff for any potential non-acute patient admissions. (Compl. 11 54.) Throughout these directives, Dr. Meade repeatedly assured Plaintiffher role in bed control was approved by Paul Lorenz, the Chief Executive Officer. (Id.) In 0r around June 2017, Dr. Terry Osback, a recently rehired psychiatrist with a history 0f gender discrimination and interpersonal conflicts, began t0 engage in a protracted and widespread retaliatory campaign t0 discredit and isolate Plaintiff through negative false rumors that also threatened patient safety. (Compl. 11 53, 57-59, 60, & 130.) These rumors, exacerbated by general resistance t0 the bed-control function resulted in baseless investigations into Plaintiffs work practices, mistrust from colleagues, isolation, and stress. (See Comp]. 1W 65, 82, 86, 88, 93, 97, & 101.) Plaintiff repeatedly sought help from Dr. Meade t0 n0 avail either due t0 his dismissal 0r ineffective response. (Compl. 1W 91-92, 98-99, 106, 116, & 214.) These insidious actions against Plaintiff only worsened over time, forcing Plaintiff t0 repeatedly make whistleblower complaints t0 protect both patients and her. (See Comp]. 1W 66, 87, 120, 170, 174, 271, 278, 280, & 283.) Plaintiff” s constant need t0 defend her patients and herself, combined with Defendant’s indifference, caused her severe stress and stress-related headaches. (Compl. 11 295.) On 0r about July 25, 20 1 9, Plaintiffnotified Dr. Meade ofher severe headaches but did not receive a response. (Id.) On 0r about the night 0f July 25, 20 1 9, Plaintiffnotified Dr. Meade she scheduled a doctor’s appointment for her headaches 0n July 30, 2019. (Compl. 11 299.) On 0r about July 26, 2019, Dr. Meade instructed his assistant, Melissa Mitchell (“Mitchell”), t0 send Family Medical Leave Act (“FMLA”) forms to Plaintiff for her doctor to fill out by the end 0f the week and t0 notify Plaintiff she was removed from the schedule until October 25, 2019. (Compl. 11 300.) Dr. Colbert never requested a prolonged leave. (Id.) During this time period, Plaintiff rescheduled an August 22, 2019 meeting due t0 her leave. (Compl. 11 305.) While Plaintiff was out 0n leave, Dr. Meade appointed Dr. Osback as the new acting EPS chief absent the burdensome bed control function 6 Plaintiff’s Memorandum of Points and Authorities in Opposition t0 Defendant’s Demurrer to Plaintiff’s Complaint Colbert v. County ofSanta Clara Case N0.: 21CV383442 Lawrance A. Bohm, Esq. Kelsey K. Ciarimboli, Esq. BOHM LAW GROUP, INC. 5205 KEARNY VILLA WAY, SUITE 105 SAN DIEGO, CALIFORNIA 92123 KOOONONUI-PUJNH NNNNwwwwwb-Ab-Ab-Ab-Ab-Ab-Ab-Ab-Ab-Ab-A OONONMJ>UJNHOKOOONONMJ§WNHO for which he had saddled Plaintiff. (Compl. 11 3 12.) In 0r about September 2019, Plaintiff inquired with Mitchell why she had t0 fill out her FMLA paperwork so quickly when that was not the case previously. (Compl. 11 330.) In response, Mitchell instructed Plaintiff t0 contact Human Resources instead; Plaintiff did so and never received a response. (Id.) On 0r about October 2, 2019, Plaintiff returned t0 work where Drs. Meade and H0 presented her with a disciplinary letter, transferred her out 0f EPS t0 the Mental Health Urgent Care (“MHUC”) unit, and informed her performance would be monitored for 90 days with a formal assessment 0n January 2, 2020. (Compl. 11 340.) EPS nurses and doctors were also discouraged from interacting with Plaintiff. (Id.) Plaintiff was then forced t0 work in an unsafe office, barred from even entering EPS, and had her belongings damaged 0r destroyed. (Compl. 1W 343, 353, & 393.) On 0r about April 24, 2020, Defendant placed Plaintiff on administrative leave pending investigation into yet another false allegation against Plaintiff. (Compl. 11 41 8.) In the following months, Plaintiff continued t0 suffer from personal attacks, retaliation, harassment, discrimination, and a hostile work environment which left her with disabling headaches, insomnia, and depression. (Compl. 11 449.) On 0r about October 3, 2020, the County constructively terminated Plaintiff by declining t0 address the retaliation she suffered for engaging in her protected activities leaving her with n0 choice except t0 resign 0r otherwise endure more harm t0 her reputation, health, and ability t0 continue t0 work as doctor. (Compl. 11 450.) III. LEGAL STANDARD While Code 0f Civil Procedure section 430.10 provides that failure t0 “state facts sufficient t0 constitute a cause 0f action” in a pleading and an “uncertain” pleading are grounds for demurrer, a complaint defeats a demurrer if it states any valid cause 0f action entitling plaintiff to relief (emphasis added.) /// /// /// /// 7 Plaintiff’s Memorandum of Points and Authorities in Opposition t0 Defendant’s Demurrer to Plaintiff’s Complaint Colbert v. County ofSanta Clara Case N0.: 21CV383442 Lawrance A. Bohm, Esq. Kelsey K. Ciarimboli, Esq. BOHM LAW GROUP, INC. 5205 KEARNY VILLA WAY, SUITE 105 SAN DIEGO, CALIFORNIA 92123 KOOONONUI-PUJNH NNNNwwwwwb-Ab-Ab-Ab-Ab-Ab-Ab-Ab-Ab-Ab-A OONONMJ>UJNHOKOOONONMJ§WNHO The rules by which the sufficiency 0f a complaint is tested against a demurrer are well settled. We not only treat the demurrer as admitting all material facts properly pleaded, but also “give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.” (Quelimane C0., Inc. v. Stewart Title Guar. C0. (1998) 19 Cal.4th 26, 38; see also Courtesy Ambulance Serv. V. Superior Court (1992) 8 Cal.App.4th 1504, 1519.) “A demurrer tests only the legal sufficiency 0f the allegations. It does not test their truth, the plaintiffs ability t0 prove them, 0r the possible difficulty in making such proof.” (Saunders v. Superior Court (1994) 27 Cal.4th 832, 840.) A demurrer “should not be sustained if the allegations are sufficiently clear t0 apprise the defendant 0f the issues that must be met, even if the allegations 0f the complaint may not be as clear and as detailed as might be desired.” (Bacon v. Wahraftig (1950) 97 Cal.App.2d 599, 605.) The issue on demurrer is not whether Plaintiff can ultimately prove all facts alleged, but whether, if the facts are true, Plaintiff is entitled t0 relief. (Southern California Thrift & Loan v. Sylvania Elec. Products, Inc. (1967) 248 Cal.App.2d 642, 649; Blank v. Kirwan (1985) 39 Cal.3d 311, 318; see also Harvey v. City ofHoltville (4th District 1969) 271 Cal.App.2d 816, 819.) Lastly, a demurrer can be used only t0 challenge defects that appear 0n the face 0f the pleading under attack. (Blank v. Kirwan, supra, 39 Cal.3d at 318; Donabedian v. Mercury Ins. C0. (2004) 116 Ca1.App.4th 968,994.) IV. LEGAL ARGUMENT A. Plaintiff’s Complaint Alleges She took Medical Leave Due t0 Her Stress and Headaches The CFRA, which is contained within the FEHA (Gov. Code, § 12900 et seq.), “is intended t0 give employees an opportunity t0 take leave from work for certain personal or family medical reasons without jeopardizing job security.” (Nelson v. United Technologies (1997) Cal.App.4th 597, 606.) Generally, the CFRA makes it an unlawful employment practice for an employer 0f 50 0r more persons t0 refuse t0 grant a request by an employee t0 take up t0 12 work weeks in any 12-month period for family care and medical leave. (Gov. Code, § 12945.2 subds. (a), (c)(2(A).) In order t0 properly request CFRA leave, an employee shall provide at least verbal 8 Plaintiff’s Memorandum of Points and Authorities in Opposition t0 Defendant’s Demurrer t0 Plaintiff’s Complaint Lawrance A. Bohm, Esq. Colbert v. County ofSanta Clara Kelsey K. Ciarimboli, Esq. Case N0.: 21CV383442 BOHM LAW GROUP, INC. 5205 KEARNY VILLA WAY, SUITE 105 SAN DIEGO, CALIFORNIA 92123 KOOONONUI-PUJNH NNNNwwwwwb-Ab-Ab-Ab-Ab-Ab-Ab-Ab-Ab-Ab-A OONONMJ>UJNHOKOOONONMJ§WNHO notice sufficient t0 make the employer aware that the employee needs CFRA-qualifying leave, and the anticipated timing and duration 0fthe leave. The employee need not expressly assert rights under CFRA, 0r FMLA 0r even mention CFRA 0r FMLA, t0 meet the notice requirement; however, the employee must state the reason for the leave as needed, such as, for example, the expected birth 0f a child 0r for medical treatment. The employer should inquire further of the employee if it is necessary t0 have more information about whether CFRA leave is being sought by the employee and obtain the necessary details 0f the leave t0 be taken. (Faust v. California Portland Cement C0. (2007) 150 Cal.App.4th 864, 879-80; Cal. Code Regs, tit. 2, § 7297.4, subd. (a)(l) (emphasis added).) The regulation further provides, “Under all circumstances, it is the employer's responsibility t0 designate leave, paid 0r unpaid, as CFRA 0r CFRA/FMLA qualifying, based 0n information provided by the employee ..., and t0 give notice 0f the designation t0 the employee.” (Cal. Code Regs, tit. 2, § 7297.4, subd. (a)(1)(A).) Here, Plaintiff followed the necessary steps t0 properly take CFRA leave. On 0r about July 25, 2019, Plaintiff told her supervisor, Dr. Meade, that she was suffering a from a number 0f severe headaches and may seek leave t0 properly treat them; Dr. Meade failed t0 inquire further at this time. (Compl. 11 295.) On 0r about the evening 0fthe same day, Plaintiffemailed Dr. Meade and Michell t0 notify them she was continuing t0 experience severe headaches and would need t0 take time off. (Compl. 11 299.) She further told him she scheduled a doctor’s appointment 5 days later. (Id.) On 0r about the very next day, Mitchell, under Dr. Meade’s orders, sent Plaintiff FMLA paperwork for Plaintiff to fill out and return within a week. (Compl. 11 300.) Mitchell also informed Plaintiff she was off schedule until October 25, 2019. (Id.) Plaintiff did not return t0 work until October 2, 2019. (Compl. 11 340.) Plaintiff clearly informed Defendant she was suffering from a medical condition and was going t0 take leave for it. It was the Defendant’s responsibility to inquire with Plaintiff for more details, but the Defendant never did. Instead, the Defendant summarily removed Plaintiff from the schedule and sent her FMLA paperwork without further questioning. (Compl. 11 300.) Any such failure t0 clearly designate what manner 0f medical leave Plaintiff took lies solely with 9 Plaintiff’s Memorandum of Points and Authorities in Opposition t0 Defendant’s Demurrer to Plaintiff’s Complaint Colbert v. County ofSanta Clara Case N0.: 21CV383442 Lawrance A. Bohm, Esq. Kelsey K. Ciarimboli, Esq. BOHM LAW GROUP, INC. 5205 KEARNY VILLA WAY, SUITE 105 SAN DIEGO, CALIFORNIA 92123 KOOONONUI-PUJNH NNNNwwwwwb-Ab-Ab-Ab-Ab-Ab-Ab-Ab-Ab-Ab-A OONONMJ>UJNHOKOOONONMJ§WNHO Defendant in this instance. Regardless 0f Defendant’s failures, Plaintiffs complaint clearly alleges she took protected medical leave. As such, Defendant’s demurrer t0 Plaintiff” fifth cause 0f action should be overruled. B. Plaintiff’s Stress and Stress-Related Headaches Qualify as a Serious Health Condition Entitling Her t0 Leave under the CFRA The CFRA defines a “[s]eri0us health condition” as “an illness, injury, impairment, or physical 0r mental condition that involves either 0f the following: [11] (A) Inpatient care in a hospital, hospice, 0r residential health care facility. [11] (B) Continuing treatment 0r continuing supervision by a health care provider.” (Gov. Code, § 12945.2, subd. (c)(8).) Both the CFRA and its federal counterpart, the FMLA, allow medical leave for a stress-related condition, as long as the condition is so serious as t0 prevent the employee from doing the assigned job. Indeed, a federal regulation interpreting the FMLA expressly states that “[m]ental illness resulting from stress may be [a] serious health conditi0n[ ].” (29 C.F.R. § 825.1 14(0) (2007).) The California Fair Employment and Housing Commission, the agency responsible for administering the CFRA, has incorporated by reference the federal regulations interpreting the FMLA t0 the extent they d0 not conflict with the CFRA, the California Constitution, and other state laws. (Cal. Code Regs., tit. 2, § 7297. 10.) In interpreting this regulation, California has conducted fact-specific interpretations 0f this regulation based 0n whether the stress and stress-related manifestations makes the “employee unable t0 perform the functions 0f the position 0f that employee.” (Gov. Code, § 12945.2, subd. (c)(3)(C).) Under this analysis, California courts have held stress-related 0r stress-aggravated conditions can qualify for the purpose 0f a serious health condition (See Faust v. California Portland Cement C0., supra, 150 Cal.App.4th 864; Lonicki v. Sutter Health Central, (2008) 43 Cal.4th 201 ; see also Aguirre v. California, (ND. Cal. NOV. 16, 2017) No.16- CV-05564-HSG 2017, WL 5495953.) Here, Plaintiff endured years 0f mounting stress caused by numerous unresolved adverse employment actions. (See, for example. Comp]. 1W 66, 87, 120, 170, 174, 271, 278, 280, & 283.) Plaintiff endured these negative actions in addition t0 the normal stress 0fher demanding position as EPS Chiefwith a bed control function. (See Comp]. 1W 26 & 46.) As a result, Plaintiff suffered 10 Plaintiff’s Memorandum of Points and Authorities in Opposition t0 Defendant’s Demurrer to Plaintiff’s Complaint Colbert v. County ofSanta Clara Case N0.: 21CV383442 Lawrance A. Bohm, Esq. Kelsey K. Ciarimboli, Esq. BOHM LAW GROUP, INC. 5205 KEARNY VILLA WAY, SUITE 105 SAN DIEGO, CALIFORNIA 92123 KOOONONUI-PUJNH NNNNwwwwwb-Ab-Ab-Ab-Ab-Ab-Ab-Ab-Ab-Ab-A OONONMJ>UJNHOKOOONONMJ§WNHO a tremendous amount 0f stress that manifested as headaches so severe she had t0 seek both medical leave and medical attention. (Compl. 1W 295, 299-300.) Therefore, Defendant’s demurrer to Plaintiffs fifth cause 0f action should be overruled. C. Plaintiff’s FEHA Disability Discrimination Cause 0f Action is Based 0n a Qualified Medical Disability FEHA prohibits employers from discriminating against employees 0n the basis 0f an actual 0r perceived disability. (Gov. Code, § 12940, subd. (a).) FEHA defines a mental disability as a psychological disorder 0r condition that limits a major life activity. (Gov. Code, § 12926, subd. (j)(1).) “Major life activities” includes “physical, mental, and social activities and working.” (Gov. Code, § 12926, subd. (j)(1)(C).) A condition 0r impairment limits a major life activity if it makes the achievement 0f the major life activity difficult. (Gov. Code, § 12926, subds. (j)(1)(B), (m)(1)(B)(ii).) FEHA prohibits employers from discriminating against employees 0n the basis 0f an actual 0r perceived disability. (Gov. Code, § 12940, subd. (a).) As stated in the FEHA: The law 0f this state contains broad definitions 0f physical disability, mental disability, and medical condition. It is the intent 0f the Legislature that the definitions of physical disability and mental disability be construed so that applicants and employees are protected from discrimination due t0 an actual 0r perceived physical 0r mental impairment that is disabling, potentially disabling, or perceived as disabling 0r potentially disabling. An actual 0r existing disability is not necessary. (Artega v. Brink’s, Ina, (2008) 163 Cal.App.4th 327, 342.) The FEHA defines “disability” t0 include: (1) “[h]aving a record 0r history 0f a disease, disorder, condition, cosmetic disfigurement, anatomical loss, 0r health impairment [that constitutes a physical disability], which is known t0 the employer”; (2) “[b]eing regarded 0r treated bV the employer as having, 0r having had, anV physical condition that makes achievement 0f a major life activity difficult”; 0r (3) “[b]eing regarded 0r treated bV the employer as having, 0r having had, a disease, disorder, condition, cosmetic disfigurement, anatomical loss, 0r health impairment that has n0 present disabling effect but may become a physical disability. (Gov. Code, § 12926, subd. (k)(3)-(5) (emphasis added).) Plaintiffs complaint identifies stress and headaches as her qualifying disabilites both through direct statements and logical inferences. (Compl. 1W 15, 295, 298-99, & 449.) A plain 11 Plaintiff’s Memorandum of Points and Authorities in Opposition t0 Defendant’s Demurrer t0 Plaintiff’s Complaint Lawrance A. Bohm, Esq. Colbert v. County ofSanta Clara Kelsey K. Ciarimboli, Esq. Case N0.: 21CV383442 BOHM LAW GROUP, INC. 5205 KEARNY VILLA WAY, SUITE 105 SAN DIEGO, CALIFORNIA 92123 KOOONONUI-PUJNH NNNNwwwwwb-Ab-Ab-Ab-Ab-Ab-Ab-Ab-Ab-Ab-A OONONMJ>UJNHOKOOONONMJ§WNHO reading of Plaintiffs complaint conveys the overwhelming stress placed 0n Plaintiff by years 0f worsening workplace conditions caused by rumors, false allegations, baseless investigations, gender discrimination, ageism, patient safety issues, and a leadership that was uncaring at best and openly hostile at worst. (See generally Compl.) This pattern amounts t0 far greater stress than that outright stated in the complaint, but that permeates every line of Plaintiffs increasingly desperate efforts t0 protect her patients, her health, and her reputation. (Id.) As previously mentioned, Plaintiffs stress and stress-related severe headaches prevented her from performing the duties 0f her position, thus limiting a major life activity and qualifying her stress and stress- related severe headaches as a qualified medical disability. (See Faust v. California Portland Cement C0., supra, 150 Cal.App.4th 864; Lonicki v. Sutter Health Central, supra, 43 Cal.4th 201 ; see also Aguirre v. California, supra, No.16-CV-05564-HSG 2017, WL 5495953.) As such, Defendant’s demurrer t0 Plaintiffs sixth cause 0f action should be overruled. D. Plaintiff Alleges Sufficient Facts t0 Sustain the Failure t0 Engage in an Interactive Process Cause 0f Action “The ‘interactive process’ required by the FEHA is an informal process with the employee 0r the employee’s representative, t0 attempt t0 identify a reasonable accommodation that will enable the employee t0 perform the job effectively. [Citation] Ritualized discussions are not necessarily required.” (Scotch v. Art Institute ofCalifomia (2009) 173 Cal.App.4th 986, 1013.) The employee must initiate the process unless his 0r her disability and the resulting limitations are obvious. “Once the interactive process is initiated, the employer’s obligation t0 engage in the process in good faith is continuous.” (Ibid.) “Both employer and employee have the obligation ‘to keep communications open’ and neither has a right t0 obstruct the process.” (Id. at 1014.) However, “although it is the employee's burden t0 initiate the process, n0 magic words are necessary, and the obligation arises once the employer becomes aware 0f the need t0 consider an accommodation.” (Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34, 62, fn. 22.) “Liability hinges 0n the objective circumstances surrounding the parties' breakdown in communication, and responsibility for the breakdown lies with the party who fails t0 participate in good faith.” (Id. at 62.) 12 Plaintiff’s Memorandum of Points and Authorities in Opposition t0 Defendant’s Demurrer to Plaintiff’s Complaint Colbert v. County ofSanta Clara Case N0.: 21CV383442 Lawrance A. Bohm, Esq. Kelsey K. Ciarimboli, Esq. BOHM LAW GROUP, INC. 5205 KEARNY VILLA WAY, SUITE 105 SAN DIEGO, CALIFORNIA 92123 KOOONONUI-PUJNH NNNNwwwwwb-Ab-Ab-Ab-Ab-Ab-Ab-Ab-Ab-Ab-A OONONMJ>UJNHOKOOONONMJ§WNHO As mentioned previously, Plaintiff had a qualifying disability in the form 0f intense stress and related severe headaches. (Compl. 1W 15, 295, 298-300, & 449.) Plaintiff clearly communicated the toll this was taking 0n her t0 Defendant. (Compl. 1W 298-99.) Defendant only responded after Plaintiff sent an email. (Id) Defendant’s response of sending Plaintiff FMLA paperwork and taking Plaintiff off the schedule conveyed Defendant’s understanding 0f Plaintiff‘s disability, particularly as Defendant was in receipt 0f years 0f communications from Plaintiff showcasing the intense amount 0f stress Plaintiff was under. (See Compl.) Defendant, however, quickly stopped engaging in the interactive process once Plaintiff returned t0 work. In fact, Defendant acted in bad faith by moving Plaintiff t0 an unsafe office and failing to inquire whether Plaintiff” s need for accommodation was still present. (Id) Defendant therefore refused t0 continue t0 engage in the interactive process with Plaintiff despite knowing of Plaintiffs qualifying disability. Thus, Defendant’s demurrer t0 Plaintiffs seventh cause 0f action should be overruled. E. Plaintiff Alleges Sufficient Facts t0 Sustain the Failure t0 Accommodate Cause 0f Action The FEHA imposes on the employer the obligation t0 make reasonable accommodation: “It shall be an unlawful employment practice, unless based upon a bona fide occupational qualification, 0r, except where based upon applicable security regulations established by the United States 0r the State 0f California: [11] [11] (1n) For an employer 0r other entity covered by this part t0 fail t0 make reasonable accommodation for the known physical 0r mental disability 0f an applicant or employee.” (Gov. Code, § 12940, subd. (111).) “Reasonable accommodation” has been interpreted t0 mean “a modification 0r adjustment t0 the workplace that enables the employee t0 perform the essential functions 0f the job held 0r desired.” (Nadaf-Rahrov v. The Neiman Marcus Group, Inc. (2008) 166 Cal.App.4th 952, 975- 976.) Reasonable accommodations include ‘[j]0b restructuring, part-time 0r modified work schedules, reassignment t0 a vacant position. . .and other similar accommodations for individuals With disabilities.’ [Citations.]” (Swanson v. Morongo Unified School District (2014) 232 Cal.App.4th 954, 968-969.) /// 13 Plaintiff’s Memorandum of Points and Authorities in Opposition t0 Defendant’s Demurrer to Plaintiff’s Complaint Colbert v. County ofSanta Clara Case N0.: 21CV383442 Lawrance A. Bohm, Esq. Kelsey K. Ciarimboli, Esq. BOHM LAW GROUP, INC. 5205 KEARNY VILLA WAY, SUITE 105 SAN DIEGO, CALIFORNIA 92123 KOOONONUI-PUJNH NNNNwwwwwb-Ab-Ab-Ab-Ab-Ab-Ab-Ab-Ab-Ab-A OONONMJ>UJNHOKOOONONMJ§WNHO “The elements 0fa failure t0 accommodate claim are (1) the plaintiffhas a disability under the FEHA, (2) the plaintiff is qualified to perform the essential functions 0f the position, and (3) the employer failed t0 reasonably accommodate the Plaintiffs disability. (Id. at 969.) As previously stated, Plaintiff established she had a qualifying disability which she communicated t0 Defendant. While Defendant initially accommodated Plaintiff, Defendant stopped doing so the moment Plaintiff returned t0 work whereupon Defendant demoted Plaintiff and moved her t0 an unsafe office. (Compl. 1W 300, 340, & 343.) Therefore, Defendant’s demurrer to Plaintiffs eighth cause 0f action should be overruled. V. LEAVE TO AMEND Even where a court grants a demurrer, leave t0 amend should be afforded. (See Scott v. Indian Wells (1972) 6 Cal.3d 541, 549; see also Community Cause v. Boatwright (1981) 124 Cal.App.3d 888, 896-897 (“[G]reat liberality should be exercised in permitting a plaintiff to amend his complaint, and it ordinarily constitutes an abuse 0f discretion t0 sustain a demurrer without leave t0 amend if there is a possibility that the defect can be cured by amendment.”).) Unless the complaint shows 0n its face that it is incapable ofamendment, denial 0f leave t0 amend constitutes an abuse 0f discretion, irrespective 0f whether leave t0 amend is requested 0r not. Liberality in permitting amendment is the rule, not only when a complaint is defective as t0 form but also when it is deficient in substance, if a fair prior opportunity t0 correct the substantive defect has not been given. (McDonald v. Superior Court (1986) 180 Cal.App.3d 297, 303-304.) Plaintiff asserts her complaint is sufficient. Should Defendant sway this Court, Plaintiff respectfully requests leave t0 amend be granted so that Plaintiff may clarify the nature of Plaintiff” s medical leave and her disability. /// /// /// /// /// /// 14 Plaintiff’s Memorandum of Points and Authorities in Opposition t0 Defendant’s Demurrer to Plaintiff’s Complaint Colbert v. County ofSanta Clara Case N0.: 21CV383442 Lawrance A. Bohm, Esq. Kelsey K. Ciarimboli, Esq. BOHM LAW GROUP, INC. 5205 KEARNY VILLA WAY, SUITE 105 SAN DIEGO, CALIFORNIA 92 1 23 \DOONO‘NUI-PUJNu-t NNNNNNNNNHHp-tu-tu-th-tr-tt-tt-b-t OONO‘NUl-PUJNHOKDOONO‘NUl-PWNHO VI. CONCLUSION Based 0n the foregoing, Plaintiffrespectfully requests that the Court overrule Defendant’s demurrer as t0 the fifth through eighth causes 0f action. If this Court sustains any part 0f Defendant’s demurrer, Plaintiff respectfully requests that it is sustained with leave t0 amend. Date: December 30, 2021 CE BOHM ESQ EY C ARIMBOLI ESQ Attorneys for laintiff, HEATHER OLBERT, M.D. ,.Ph D. 15 Plaintiff’s Memorandum of Points and Authorities in Opposition t0 Defendant’s Demurrer t0 Plaintiff’s Complaint Lawrance A. Bohm, Esq. Colbert v. County ofSanta Clara Kelsey K. Ciarimboli, Esq. Case N0.: 21CV383442