Memorandum Points and Authorities

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

BEST BEST & KRIEGER LLP ATTORNEYS AT LAW 655 WEST BROADWAY, 15TH FLOOR SAN DIEGO, CALIFORNIA 92 101 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 21 CV390801 Santa Clara - Civil ARLENE PRATER, Bar No. 67 1 91 arlene.prater@bbklaw.com SHAUNA R. AMON, Bar No. 3 12883 shauna.amon@bbklaw.com BEST BEST & KRIEGER LLP 655 West Broadway 15th Floor San Diego, California 92 1 01 Telephone: (6 1 9) 525- 1 300 Facsimile: (619) 233-61 18 Attorneys for Defendants ALSCO INC., STEINER CORPORATION dba ALSCO INC. AND KENNETH GREGG Electronically Filed by Superior Court of CA, County of Santa Clara, on 2/8/2022 3:19 PM Reviewed By: S. Uy Case #21 CV390801 Envelope: 8245453 SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA MARTHA CAMARENA, an individual, Plaintiff, V. ALSCO INC., a California company; STEINER CORPORATION dba ALSCO, a company; ALSCO INC. dba STEINER CORPORATION, a company; KENNETH GREGG, an individual and DOES 1 through 35, inclusive, Defendants. 10052.00001\34808083 .1 -1- Case No. 21CV390801 Judge: Hon. Peter Kirwan Dept. 19 DEFENDANTS ALSCO INC., STEINER CORPORATION dba ALSCO INC. AND KENNETH GREGG’S MEMORANDUM IN SUPPORT OF DEMURRER TO PLAINTIFF MARTHA CAMARENA’S FIRST AMENDED COMPLAINT Court Will set Court Will set Date: Time: Complaint Filed: November 2, 2021 Trial Date: None set MEMORANDUM IN SUPPORT OF DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT .Uy BEST BEST & KRIEGER LLP ATTORNEYS AT LAW 655 WEST BROADWAY, 15TH FLOOR SAN DIEGO, CALIFORNIA 92 101 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF CONTENTS I. INTRODUCTION .............................................................................................................. 5 II. FACTUAL BACKGROUND ............................................................................................. 6 III. PROCEDURAL HISTORY ................................................................................................ 6 IV. LEGAL STANDARD ......................................................................................................... 7 V. ARGUMENT ................................................................................................................ 7 A. Plaintiff’s Action Is Barred by the Exclusive Remedy Provisions of the Workers’ Compensation Act ................................................................................... 7 B. Plaintiff Fails To Allege Sufficient Facts In Causes of Action 1 Through 7 t0 Establish A Prima Facie Case Of Discrimination, Harassment, Retaliation 0r Failure to Engage in the Interactive Process/Provide a Reasonable Accommodation in Violation ofFEHA ............................................... 9 1. Plaintiff Cannot Establish A Prima Facie Case Of Discrimination ........... 9 2. Similarly, Plaintiff Fails to Establish a Prima Facie Case 0f Harassment ................................................................................................ 1 1 3. Plaintiff Fails T0 Establish a Prima Facie Case for Retaliation ............... 12 Finally, Plaintiff Cannot Establish a Prima Facie Case 0f Failure t0 Engage in the Interactive Process/ Provide a Reasonable Accommodation ........................................................................................ 13 C. Plaintiff’s Eighth, Ninth and Tenth Causes Of Action Are Barred By The Two-Year Statute of Limitations Period ............................................................... 14 D. The Court Should Not Grant Plaintiff Leave to Amend ....................................... 15 VI. CONCLUSION .............................................................................................................. 15 10052.00001\34808083.1 - 2 - MEMORANDUM IN SUPPORT OF DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT BEST BEST & KRIEGER LLP ATTORNEYS AT LAW 655 WEST BROADWAY, 15TH FLOOR SAN DIEGO, CALIFORNIA 92 101 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES Federal Cases Jadwin, D.O. v. County ofKem (2009) 610 F. Supp. 2d 1129 ................................................................................................................ 13 McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792. (See, Sande]! v. Taylor-Listug, Inc. (2010) 188 Ca1.App.4th 297, 307.) .............9 Oncale v. Sundowner Ojfs‘hore Services, Inc. (1998) 523 U.S. 75 ................................................................................................................................ 12 St. Mary’s Honor Center v. Hicks (1993) 509 U.S. 502 ................................................................................................................................ 9 Texas Dept. ofCommunily Aflairs v. Burdine (1981) 450 U.S. 248 ................................................................................................................................ 9 State Cases Estate ofArcher (1987) 193 Cal.App.3d 238 .................................................................................................................... 7 Barton v. New United Motor Mfg, Inc. (1996) 43 Cal.App.4th 1200 ................................................................................................................. 14 Beyda v. City ofLos Angeles (1998) 65 Cal.App.4th 511 ................................................................................................................... 11 Brown v. Los Angeles Unified School District (2021) 60 Ca1.App.5th 1092 ................................................................................................................. 10 Burt v. County 0f0range (2004) 120 Cal.App.4th 273 ................................................................................................................... 7 Czajkowski v. Haskell & White, LLP (2012) 208 Cal.App.4th 166 ................................................................................................................. 10 Daar v. Yellow Cab C0. (1967) 67 Cal. 2d 695 ............................................................................................................................. 7 Etter v. Veriflo Corp. (1998) 67 Ca1.App.4th 457 ................................................................................................................... 11 Featherstone v. Southern California Permanente Medical Group (2017) 10 Cal.App.5th 1150 ................................................................................................................. 13 Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590 .................................................................................................................. 11 Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34 ................................................................................................................... 13 Green v State ofCalifomia (2007) 47 Cal.4th 254 ........................................................................................................................... 13 Guz v. Bechtel (2000) 24 Cal.4th 317 ....................................................................................................................... 9, 10 Hughes v. Pair (2009) 46 Cal. 4th 1035 ........................................................................................................................ 12 Jones v. Department ofCorrectionS (2007) 152 Cal.App.4th 1367 ............................................................................................................... 10 Lacher v. Superior Court (1991) 230 Cal.App.3d 1038 ................................................................................................................ 15 10052.00001\34808083.1 - 3 - MEMORANDUM IN SUPPORT OF DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT BEST BEST & KRIEGER LLP ATTORNEYS AT LAW 655 WEST BROADWAY, 15TH FLOOR SAN DIEGO, CALIFORNIA 92 101 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Livitsanos v. Superior Court (1992) 2 Cal.4th 744 ............................................................................................................................... 8 Melendrez v. Amemn Internat. Corp. (2015) 240 Cal.App.4th 632 ................................................................................................................... 8 Miklosy v. Regents 0f University ofCalifornia (2008) 44 Ca1.4th 976 ............................................................................................................................. 8 Newland v. County ofLos Angeles (2018) 24 Ca1.App.5th 676 ..................................................................................................................... 8 Scotch v. Art Inst. 0fCal.-0range County (2009) 173 Cal.App.4th 986 ................................................................................................................. 13 Shoemaker v. Myers (1990) 52 Cal.3d 1 .................................................................................................................................. 8 Swanson v. Morongo Unified School Dist. (2014) 232 Cal.App.4th 954 ................................................................................................................. 13 Thompson v. City OfMonrovia (2010) 186 Cal.App.4th 860 ................................................................................................................. 12 Torres v. City onorba Linda (1993) 13 Cal.App.4th 1035 ................................................................................................................. 15 White v. Davis (1975) 13 Cal. 3d 757 ............................................................................................................................. 7 Yanowitz v. L ’Oreal USA, Inc. (2005) 36 Ca1.4th 1028 ......................................................................................................................... 12 Federal Statutes Code CiV. Proc., § 430.10, subds.(e) .................................................................................................7 Code of Civil Procedure § 335.1 ............................................................................................. 5, 6, 14 Fair Employment and Housing Act ................................................................................................... 5 FEHA ...................................................................................................................................... passim Workers’ Compensation Act ........................................................................................................... 14 State Statutes California Code 0f Civil Procedure § 430.10 .................................................................................... 7 California Workers’ Compensation Act ............................................................................................ 5 Government Code § 12940 (m) ....................................................................................................... 13 Government Code § 12940, subd.(k) .............................................................................................. 10 Labor Code §§ 98.6 and 1102.5, ninth ............................................................................................ 14 Labor Code § 132(a) ......................................................................................................................... 9 Labor Code § 132(a), 1] 4 .................................................................................................................. 9 Labor Code § 3600 ............................................................................................................................ 7 Labor Code § 3600(b) ....................................................................................................................... 7 Labor Code § 3602(a) ....................................................................................................................... 7 10052.00001\34808083.1 - 4 - MEMORANDUM IN SUPPORT OF DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT BEST BEST & KRIEGER LLP ATTORNEYS AT LAW 655 WEST BROADWAY, 15TH FLOOR SAN DIEGO, CALIFORNIA 92 101 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION On November 2, 2021, Plaintiff Martha Camarena (“Plaintiff”) filed her original Complaint against Defendants Alsco Inc., Steiner Corporation dba Alsco Inc. and Kenneth Gregg (collectively referred t0 as “Alsc0”). In response t0 Alsco’s first request to meet and confer before filing a Demurrer, Plaintiff filed a First Amended Complaint (“FAC”) 0n January 10, 2022. The only substantive change made to Plaintiff’s original Complaint was to Paragraph 19, in Which the following sentence was added: “Specifically, he [referencing Defendant Gregg] would make disparaging remarks to her about her claimed injuries and need for accommodations. MR. GREGG harassed PLAINTIFF because 0f her medical condition, disability, race, ethnicity, national origin, gender and/or other unlawful, discriminatory animus.” (FAC, 11 19.) However, even as amended, Plaintiffs FAC still contains essentially the same deficiencies as were previously pled. Counsel for the parties met and conferred again before filing the Demurrer, and Plaintiff s counsel declined to amend the FAC any further t0 allege sufficient facts for any of the claims. As pled, the allegations underlying all ten causes 0f action are solely based 0n injuries which are alleged t0 have been sustained by Plaintiff in June 2019 during the course and scope of Plaintiff’s employment. Since there are n0 facts alleged to support these conclusory allegations, they are all barred by the exclusive remedy provisions 0f the California Workers’ Compensation Act. Plaintiff’s FAC also does not come remotely close t0 providing sufficient facts t0 establish a prima facie case t0 support allegations that she suffered discrimination, harassment, retaliation and/or failure to engage in the interactive process/provide a reasonable accommodation in Violation 0f the Fair Employment and Housing Act (“FEHA”) Which might have taken these claims outside these exclusive remedy provisions and outside of the two-year statute of limitations that bar Plaintiff’s non-FEHA claims. Finally, those claims are barred by the two-year statute 0f limitations that applies t0 personal injuries as set forth in Code 0f Civil Procedure section 33 5. 1 . Plaintiff’s failure to allege any facts, as opposed to conclusory statements, to support her FAC even after amendment proves that she cannot meet the requisite pleading standards t0 10052.00001\34808083.1 _ 5 _ MEMORANDUM IN SUPPORT OF DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT BEST BEST & KRIEGER LLP ATTORNEYS AT LAW 655 WEST BROADWAY, 15TH FLOOR SAN DIEGO, CALIFORNIA 92 101 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 survive a Demurrer. Based thereon, Alsco requests that the Court sustain this Demurrer Without leave t0 amend. II. FACTUAL BACKGROUND The only facts provided for all ten causes of action pled in the FAC are set forth in Paragraphs 15 through 19 and simply provide a narrative as follows: Plaintiff is a Hispanic, Spanish speaking female that worked for Alsco as a feeder-folder from July 16, 2018, until September 9, 2019. (FAC, 11 15.) Plaintiff alleges that on or about June 14, 2019, Plaintiff sustained injury to her arm, head and neck While working in the course and scope 0f her employment. (FAC, 1] 17.) On or about June 15, 2019, Plaintiff returned t0 work and allegedly reported this incident t0 her alleged supervisor Kenneth Gregg. (FAC, fl 18.) Plaintiffs injuries worsened. (Id.) Plaintiff alleges that she complained t0 Mr. Gregg and requested medical attention and Mr. Gregg stated that he would get back to her but never did. (Id.) Plaintiff alleges that she continued t0 work in pain, Which worsened her medical condition, and that she continued t0 follow up With Mr. Gregg. (FAC, 1] 19.) Plaintiff alleges Mr. Gregg’s treatment towards her worsened and that he made disparaging remarks about her injuries and need for accommodation. (Id.) Plaintiff alleges that she was discriminated by Mr. Gregg based upon her medical condition, disability, race, ethnicity, national origin, gender and/or other unlawful motive and ultimately wrongfully terminated. (Id.) III. PROCEDURAL HISTORY Plaintiff filed the original Complaint on November 2, 2021, against Alsco alleging fourteen causes of action. (Declaration 0f Shauna R. Amon, 1] 2.) Counsel for the parties met and conferred telephonically 0n December 16, 2021, at Which time, Plaintiff’s Counsel agreed to amend the Complaint and add additional facts and this FAC was filed 0n January 10, 2022. (Decl., 1] 3,4.) The only changes in the FAC were: (i) t0 Withdraw the ninth, twelfth, thirteenth and fourteenth causes of action for wrongful termination in Violation 0f public policy, failure to maintain records/provide adequate wage statements, failure to pay earned income at time of discharge, and failure t0 timely provide employment records, and (ii) t0 add only a single 10052.00001\34808083.1 _ 6 _ MEMORANDUM IN SUPPORT OF DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT BEST BEST & KRIEGER LLP ATTORNEYS AT LAW 655 WEST BROADWAY, 15TH FLOOR SAN DIEGO, CALIFORNIA 92 101 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 conclusory allegation that states that her alleged supervisor, Mr. Gregg, “would make disparaging remarks to her about her claimed injuries and need for accommodations [and] harassed [her] because 0f her medical condition, disability, race, ethnicity, national origin, gender and/or other unlawful, discriminatory animus.” (FAC, 11 19.) Once more, the parties met and conferred regarding Plaintiff’s failure to allege sufficient facts underlying her claims. (Decl., 11 5, 6.) Plaintiff’s counsel contended that they thought the FAC was sufficient. (Decl., 1] 7.) Based thereon, the Parties agreed they were at an impasse and this Demurrer follows. IV. LEGAL STANDARD Under California Code 0f Civil Procedure section 430.10, a party against Whom a complaint has been filed may object by demurrer on the grounds that the pleading does not state facts sufficient to constitute a cause 0f action. (Code CiV. Proc., § 430.10, subds. (6).) A demurrer admits all material facts properly pleaded, but it does not admit contentions, deductions, or conclusions of fact 0r law. (Daar v. Yellow Cab C0. (1967) 67 Cal. 2d 695, 713; White v. Davis (1975) 13 Cal. 3d 757, 765.) Allegations 0f fact 0r law that are merely conclusory are properly disregarded by the court upon demurrer. (Burt v. County 0f Orange (2004) 120 Cal.App.4th 273, 277.) At a minimum, a plaintiff’s complaint must “apprise[] the adversary of the factual basis 0f the claim.” (Estate ofArcher (1987) 193 Ca1.App.3d 238, 245.) V. ARGUMENT A. Plaintiff’s Action Is Barred bv the Exclusive Remedv Provisions of the Workers’ Compensation Act. It is well settled that Workers’ Compensation is the exclusive scheme for work-related injuries. (See Labor Code §§ 3600(b), 3602(a).) Labor Code section 3600 provides, in relevant part: (a) Liability for the compensation provided by this division, in lieu 0f any other liability whatsoever to any person except as otherwise specifically provided in Sections 3602, 3706, and 4558, shall, without regard to negligence, exist against an employer for any injury sustained by his 0r her employees arising out of and in the course of the employment and for the death of any employee if the 10052.00001\34808083.1 _ 7 _ MEMORANDUM IN SUPPORT OF DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT BEST BEST & KRIEGER LLP ATTORNEYS AT LAW 655 WEST BROADWAY, 15TH FLOOR SAN DIEGO, CALIFORNIA 92 101 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 injury proximately causes death, in those cases Where the following conditions of compensation concur: (1) Where, at the time of the injury, both the employer and the employee are subject t0 the compensation provisions of this division. (2) Where, at the time of the injury, the employee is performing service growing out 0f and incidental t0 his 0r her employment and is acting Within the course 0f his 0r her employment. (3) Where the injury is proximately caused by the employment, either With or Without negligence. . . . This provision has been interpreted by case law to mean that for injuries “arising out of employment,” including physical or emotional injury, workers” compensation precludes any other type of recovery. (Melendrez v. Ameron Internat. Corp. (2015) 240 Ca1.App.4th 632; Livitsanos v. Superior Court (1992) 2 Cal.4th 744; Shoemaker v. Myers (1990) 52 Cal.3d 1.) Here, in reviewing the facts as pled in the FAC, it is obvious that this action is barred by the well-settled doctrine of workers’ compensation preclusion because there are no facts in the FAC Which would take the claims outside that preclusion. (Miklosy v. Regents 0f University 0f California (2008) 44 Ca1.4th 976, 902.) While Plaintiff’s FEHA claims may fall outside of this preclusion, the deficiencies in those claims are addressed in the following section. The test for liability under workers’ compensation law requires finding “at the time 0f the injury, the employee is performing service growing out of and incidental to his or her employment and is acting within the course and scope 0f his or her employment. (Newland v. County ofLos Angeles (2018) 24 Ca1.App.5th 676.) This contention is not disputed in this matter. In fact, the FAC specifically alleges that Plaintiff was injured during the course and scope of her employment. Paragraph 17 expressly states, “On or about June 14, 2019, Plaintiff sustained an injury while working in the course and scope of her employment. Specifically, a cable that moves a collection 0f clothing projected materials at her, causing impact t0 her arm, head and neck. Alsco was aware of the incident.” (FAC, 1] 17.) The fact that Plaintiff was injured during the course and scope of her employment is not contested. Further, Plaintiff has not alleged any facts to demonstrate that her claims are outside 0f the course and scope of employment. 10052.00001\34808083.1 _ 8 _ MEMORANDUM IN SUPPORT OF DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT BEST BEST & KRIEGER LLP ATTORNEYS AT LAW 655 WEST BROADWAY, 15TH FLOOR SAN DIEGO, CALIFORNIA 92 101 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Therefore, all claims alleged in the FAC relating t0 0r arising from this this injury are barred by the workers’ compensation exclusive remedy provisions. Notably, this conclusion also appears t0 be shared by Plaintiff as she currently has a pending application for discrimination benefits pursuant t0 Labor Code section 132(a) before the Workers’ Compensation Appeals Board. (See, Request for Judicial Notice). In paragraph 4 0f Plaintiff’s Petition for Benefits Pursuant t0 Labor Code Section 132(3), Plaintiff reiterates that, “On or about 6/14/19 and 08/03/18, while engaged in the performance of her job duties, Applicant sustained serious and disabling injuries to her Shoulder and Neck.” (Petition for Benefits Pursuant to Labor Code Section 132(a), 1] 4). As such, this matter should be dismissed Without leave to amend in its entirety in favor of resolution before the Workers’ Compensation Appeals Board, Where it presently and properly belongs. B. Plaintiff Fails T0 Allege Sufficient Facts In Causes 0f Action 1 Through 7 t0 Establish A Prima Facie Case Of Discrimination, Harassment, Retaliation 0r Failure t0 Engage in the Interactive Process/Provide a Reasonable Accommodation in Violation 0f FEHA. 1. Plaintiff Cannot Establish A Prima Facie Case Of Discrimination. In evaluating FEHA discrimination claims, California has adopted the three-stage burden shifting test the United States Supreme Court established in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 802-804. (See, Sande]! v. Taylor-Listug, Inc. (2010) 188 Cal.App.4th 297, 307.) If the plaintiff can establish a prima facie case, “the burden shifts to the employer t0 rebut the presumption by producing admissible evidence...that its action was taken for a legitimate, nondiscriminatory reason.” (Id. at 355-56.) Once the defendant articulates a legitimate, nondiscriminatory, and nonretaliatory reason for the employment action, the burden 0f proof shifts back t0 the plaintiff t0 demonstrate that “the employer’s proffered reasons as pretexts for discrimination, 0r t0 offer any other evidence of a discriminatory motive.” (See McDonnell Douglas Corp, supra, 411 U.S. at 802; St. Mary’s Honor Center v. Hicks (1993) 509 U.S. 502, 51 1; Texas Dept. ofCommum'ly Aflairs v. Burdine (1981) 450 U.S. 248, 252-253.) Pursuant thereto, the plaintiff bears the initial burden 0f establishing a primafacie case 0f 10052.00001\34808083.1 _ 9 _ MEMORANDUM IN SUPPORT OF DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT BEST BEST & KRIEGER LLP ATTORNEYS AT LAW 655 WEST BROADWAY, 15TH FLOOR SAN DIEGO, CALIFORNIA 92 101 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 discrimination or retaliation. (Guz v. Bechtel (2000) 24 Ca1.4th 317, 354.) In order to establish a prima facie case 0f discrimination, a plaintiff must demonstrate (1) she was a member 0f a protected class, (2) she was otherwise performing competently in her position, (3) she suffered an adverse employment action, and (4) “some other circumstance suggests discriminatory motive.” (Id. at 355.) However, there are n0 “facts” alleged in the FAC to support a claim under the provisions 0f FEHA. Plaintiff’ s first cause 0f action for discrimination in Violation 0fFEHA fails t0 allege any facts to demonstrate that there was any conduct by Alsco based on a protected category under FEHA. The FAC contains only conclusory allegations and the only facts alleged in the FAC are those surrounding Plaintiff’s injury that she sustained in the course 0f her employment and “workers” compensation injuries” are not a protected class under FEHA. Plaintiff’s allegations are simple conclusions and include n0 factual support whatsoever. It is well established that conclusory allegations are not sufficient t0 save a claim from demurrer. (Czajkowski v. Haskell & White, LLP (2012) 208 Ca1.App.4th 166, 173 [“On demurrer, a court must accept properly pleaded facts as true, but a demurrer does not admit the plaintiffs contentions nor conclusions 0f law 0r fact.”]; Brown v. Los Angeles Unified School District (2021) 60 Ca1.App.5th 1092, 1107 [Court sustained defendant’s demurrer based upon plaintiff’s failure t0 allege any facts t0 support her discrimination claim in employment in Violation 0f Government Code section 12940, subdivision (k).].) Plaintiff’s allegation is that she suffered discriminatory conduct by Alsco on the basis of her “medical condition, disability, race, ethnicity, national origin, [and] gender”. However, there are simply no facts underlying any of these protected categories to demonstrate the type 0f discriminatory conduct that she faced. Plaintiff has had an opportunity to add some facts, but has failed t0 d0 so. Because Plaintiff has failed t0 allege any facts necessary t0 infer that Alsco took any type of discriminatory action towards her, this claim should be dismissed based upon her inadequate ability to plead a cognizable discrimination in employment claim. Additionally, Plaintiff has failed t0 demonstrate that she was treated intentionally less favorably than other similarly situated individuals. In order t0 plead a cognizable claim of discrimination in Violation of FEHA, a plaintiff must allege “a set of circumstances that, if 10052.00001\34808083.1 _ 10 _ MEMORANDUM IN SUPPORT OF DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT BEST BEST & KRIEGER LLP ATTORNEYS AT LAW 655 WEST BROADWAY, 15TH FLOOR SAN DIEGO, CALIFORNIA 92 101 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 unexplained, permit an inference that it is more likelv than not the emplover intentionally treated the emplovee less favorablv than others 0n prohibited grounds.” (Jones v. Department 0f Corrections (2007) 152 Ca1.App.4th 1367, 1379, Emphasis added.) Again, Plaintiff has not included any facts t0 show What type of disparate treatment she was subject to during her employment with Alsco. Instead, and at most, Plaintiff includes bare allegations that there was a failure by Alsco t0 respond to Plaintiff’s requests for medical treatment after a June 2019 work injury. Plaintiff has therefore failed to plead facts sufficient t0 permit an inference that Alsco treated her less favorably based on her medical condition, disability, race, ethnicity, national origin and gender. Given that Plaintiff’s FAC has not provided specific allegations that support an inference 0f discrimination based upon Plaintiff’s medical condition, disability, race, ethnicity, national origin, gender or discrimination against any other protected class even after the Complaint was amended, Plaintiff’s first and second causes of action for discrimination and failure t0 prevent discrimination in Violation 0fFEHA fail as a matter 0f law. 2. Similarly, Plaintiff Fails t0 Establish a Prima Facie Case 0f Harassment. In order to plead a cognizable claim for harassment under FEHA, a plaintiff must allege that (1) she belongs to one 0f the suspect classifications protected by FEHA, (2) she was subjected t0 harassment, (3) the harassment was based upon her being a member 0f the protected group, and (4) the harassment was sufficiently severe or pervasive so as t0 alter the conditions 0f employment and create an abusive working environment. (Fisher v. San Pedro Peninsula Hospital (1989) 214 Ca1.App.3d 590, 608; Beyda v. City ofLos Angeles (1998) 65 Cal.App.4th 51 1, 516-517.) The harassment must be directed towards plaintiff because 0f, or be motivated by, one of the characteristics 0f a protected category alleged by plaintiff. (Etter v. Veriflo Corp. (1998) 67 Cal.App.4th 457, 463.) Again, Plaintiff fails to plead sufficient facts t0 demonstrate that she was subj ect t0 harassing conduct based upon her being in any protected category but only related to her workers’ compensation injuries. Therefore, Plaintiff fails t0 state a Viable claim for harassment, after two attempts. 10052.00001\34808083.1 _ 11 _ MEMORANDUM IN SUPPORT OF DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT BEST BEST & KRIEGER LLP ATTORNEYS AT LAW 655 WEST BROADWAY, 15TH FLOOR SAN DIEGO, CALIFORNIA 92 101 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Even, assuming arguendo, that Plaintiff has made the requisite showing t0 establish her existence in a protected category, the facts as pled in this claim for harassment d0 not arise to the requisite standard of severe and pervasive conduct. It is well established that in order t0 prevail 0n claim for harassment under FEHA, a high threshold of conduct must be met. An employee cannot recover for alleged harassment that is occasional, isolated 0r sporadic. (See Hughes v. Pair (2009) 46 Cal. 4th 1035, 1043-1044.) Rather, an employee seeking t0 prove harassment based 0n isolated incidents 0f allegedly harassing conduct must show that the conduct was “severe in the extreme,” such as a single harassing incident involving “physical Violence 0r the threat thereof.” (Id.) The rationale for requiring a sufficiently demanding “severe or pervasive” standard is t0 ensure that the anti-discrimination laws d0 not become a “general civility code” for the workplace. (Oneale v. Sundowner Ofi‘shore Services, Inc. (1998) 523 U.S. 75, 81.) The only allegations in the FAC that can be inferred to possibly relate t0 any alleged harassment include contentions that Plaintiff complained about her work injury and the medical attention she claims she needed. However, these allegations d0 not arise to the level of severe 0r pervasive conduct necessary in order to establish a pattern of harassment. (Thompson v. City ofMonrovia (2010) 186 Cal.App.4th 860.) As such, Plaintiff’s third and fourth claims of harassment and failure t0 prevent harassment in Violation 0fFEHA must fail as a matter of legal sufficiency. 3. Plaintiff Fails T0 Establish a Prima Facie Case for Retaliation. Plaintiff’ s fifth cause of action for retaliation in Violation 0fFEHA faces the same defects as identified above as it fails to state facts sufficient t0 constitute a cause 0f action. Claims 0f retaliation in employment must state facts that show that the employee was retaliated against for engaging in conduct protected under the discrimination/harassment laws, Which was not What was pled here. Retaliation also requires a showing that Plaintiff suffered an adverse employment action because he engaged in a protected activity. (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Ca1.4th 1028, 1068.) The fifth cause 0f action in the FAC falls short in establishing the required elements necessary for a retaliation claim. More specifically, the allegations d0 not establish that Plaintiff engaged in any type 0f protected activity. As such, and for the foregoing reasons, Plaintiff’ s fifth cause of action for retaliation in Violation 0fFEHA must fail. 10052.00001\34808083.1 _ 12 _ MEMORANDUM IN SUPPORT OF DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT BEST BEST & KRIEGER LLP ATTORNEYS AT LAW 655 WEST BROADWAY, 15TH FLOOR SAN DIEGO, CALIFORNIA 92 101 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4. Plaintiff Cannot Establish a Prima Facie Case of Failure t0 Engage in the Interactive Process/ Provide a Reasonable Accommodation. Under FEHA, it is unlawful for an employer to fail t0 make “reasonable accommodation” for the “known physical or mental disability” 0f an employee. (Government Code § 12940 (m).) In order t0 establish a claim for failure to provide reasonable accommodation, a plaintiff must plead that at the time of the alleged failure: (1) she had a disability of Which the employer was aware; (2) she was able t0 perform the essential functions of the job at issue With 0r Without accommodation; and (3) the employer failed t0 reasonably accommodate for her disability. (See Green v State ofCalifornia (2007) 47 Cal.4th 254; Jadwin, D.0. v. County ofKern (2009) 610 F. Supp. 2d 1129, 1175-1 176.). “Two principles underlie a cause 0f action for failure t0 provide a reasonable accommodation. First, the employee must request an accommodation. Second, the parties must engage in an interactive process regarding the requested accommodation and, if the process fails, responsibility for the failure rests With the party Who failed t0 participate in good faith.” (Gelfo v. Lockheed Martin Corp. (2006) 140 Ca1.App.4th 34, 54.) The employee must initiate the interactive process and the employer will only be liable When a breakdown in the communication process is the result 0f the employer’s bad faith conduct. (Swanson v. Morongo Unified School Dist. (2014) 232 Cal.App.4th 954, 971-972; Featherstone v. Southern California Permanente Medical Group (2017) 10 Ca1.App.5th 1150, 1169.) The plaintiff must identify a reasonable accommodation that would have been available at the time the interactive process should have occurred. (Scotch v. Art Inst. 0f Cal.-0range County (2009) 173 Cal.App.4th 986, 1018-1019.) As stated previously, Plaintiff does not allege with requisite specificity how her workers’ compensation injuries are qualified disabilities. She also does not allege a single instance in which Alsco failed to provide an accommodation for her alleged injuries. Similarly, she does not allege that she attempted to initiate an interactive process 0r What reasonable accommodation would have been available at the time t0 support her. Further, she alleges no facts regarding how Alsco acted in bad faith. At best, Plaintiff simply alleges that she told Mr. Gregg about her injuries and that nothing was done, despite that the fact that Mr. Gregg was not Within her 10052.00001\34808083.1 _ 13 _ MEMORANDUM IN SUPPORT OF DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT BEST BEST & KRIEGER LLP ATTORNEYS AT LAW 655 WEST BROADWAY, 15TH FLOOR SAN DIEGO, CALIFORNIA 92 101 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 supervisory chain of command. Such bare allegations do not constitute a cause 0f action disability discrimination. Plaintiff provides n0 specific facts 0n what her alleged disability was, how it impacted her job, when she requested the accommodation, What accommodation she requested, or any other facts t0 support her claim. Thus, these causes 0f action are clearly ripe for Demurrer, without leave t0 amend. C. Plaintiff’s Eighth, Ninth and Tenth Causes Of Action Are Barred BV The Two-Year Statute of Limitations Period. Plaintiff’s eighth cause of action for Violations of Labor Code sections 98.6 and 1102.5, ninth cause of action for intentional infliction 0f emotional distress, and tenth cause of action for unlawful, unfair and/or fraudulent business practices are barred not only by the exclusive remedy provisions of the Workers’ Compensation Act, but also by the applicable two-year statute of limitations period. The two-year limitations period for personal injuries as set forth in Code of Civil Procedure section 335.1 has also been held to apply t0 wrongfill termination claims. For example, in Barton v. New United Motor Mfg, Inc. (1996) 43 Cal.App.4th 1200, the court held that because the primary nature 0f right sued 0n in a wrongful termination action is personal, the court properly applied the statute 0f limitations specified in What is now contained in now contained in section 335.1. A similar result should be reached in this case. Plaintiff’s last day of employment with Alsco was 0n September 9, 2019. Because the applicable limitations period began t0 run at that time, the applicable statute of limitations concluded 0n September 9, 2021 but this action was not filed until November 2, 2021. Therefore, any claims relating to Plaintiff’s personal injuries are barred on this basis. Additionally, Plaintiff’s eighth cause 0f action for claims of retaliation in Violation of Labor Code sections 98.6 and 1102.5 does not contain any facts meeting the necessary pleading requirements for these claims. Allegations for Violations 0f Labor Code sections 98.6 and 1102.5 only apply t0 retaliation for disclosing information to a “government 0r law enforcement agency”, yet there are n0 factual allegations to support 0f any such disclosure 0f information to such a government agency anywhere in the FAC. As such, because this claim does not meet the requisite pleading standards, it must be dismissed. 10052.00001\34808083.1 _ 14 _ MEMORANDUM IN SUPPORT OF DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT BEST BEST & KRIEGER LLP ATTORNEYS AT LAW 655 WEST BROADWAY, 15TH FLOOR SAN DIEGO, CALIFORNIA 92 101 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 D. The Court Should Not Grant Plaintiff Leave t0 Amend. A demurrer must be sustained without leave to amend if the plaintiff cannot demonstrate a reasonable possibility that the defects can be cured by amendment. (Lacher v. Superior Court (1991) 230 Cal.App.3d 1038, 1043.) Once a defendant establishes that a complaint does not state facts sufficient t0 state a cause of action, the plaintiff must show “in what manner he can amend the complaint and how that amendment will change the legal effect 0f his pleading.” (Torres v. City 0f Yorba Linda (1993) 13 Cal.App.4th 1035, 1041 [plaintiff bears the burden of proving that amendment could cure the defects].) Where, as here, the defects cannot be cured by amendment, the Court must sustain the Demurrer without leave t0 amend. (Id.) Plaintiff amended the Complaint t0 only add that her alleged supervisor made disparaging remarks about her about her claimed injuries and need for accommodations and harassed her because 0f her medical condition, disability, race, ethnicity, national origin and gender but failed t0 include a single factual allegation to support these conclusory allegations. Plaintiff’s failure t0 plead anything more demonstrates that Plaintiff has no further “evidence” 0f her claims and that she cannot cure her Complaint through further amendments. VI. CONCLUSION Based 0n the foregoing, Defendants Alsco Inc., Steiner Corporation dba Alsco Inc. and Kenneth Gregg respectfully request that the Court sustain this Demurrer to Plaintiff’s First Amended Complaint, in its entirety, Without leave to amend. Dated: February 8, 2022 BEST BEST & KRIEGER LLP By: E PRATER SHAUNA R. AMON Attorneys for Defendants ALSCO INC., STEINER CORPORATION dba ALSCO INC. and KENNETH GREGG 10052.00001\34808083.1 _ 15 _ MEMORANDUM IN SUPPORT OF DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT