Plaintiffs_opposition_to_defendants_demurrerOppositionCal. Super. - 5th Dist.January 2, 2020NC 0 1 O Y G h BR W N N N R N N N N N N = = mm m e e a e d h e d e e 0 3 a N nh BA W N = O N D 0 N N B R A W N = O FRONTIER LAW CENTER Karo G. Karapetyan (SBN 318101) karo@frontierlawcenter.com Manny M. Starr (SBN 319778) manny@frontierlawcenter.com 23901 Calabasas Road, STE #2074 Calabasas, CA 91302 Telephone: (818) 914-3433 Facsimile: (818) 914-3433 LOYR, APC YOUNG W. RYU, ESQ. (SBN 266372) oung. loywr.com 3130 Wilshire Blvd., Suite 209 Los Angeles, California 90010 Telephone: (888) 365 - 8686 Facsimile: (800) 576 - 1170 Attorneys for Plaintiffs James and Peggy Sconyers ELECTRONICALLY FILED 6/23/2020 11:35 AM Kern County Superior Court By Veronica Urena, Deputy SUPERIOR COURT OF CALIFORNIA COUNTY OF KERN ) JAMES SCONYERS, an individual; and PEGGY SCONYERS, an individual, Plaintiffs, Vv. DERREL’S MINI STORAGE, INC.; DERREL A. RIDENOUR, an individual; and DOES 1 to 100, inclusive, Defendants. i 1 1 in i ) ) ) ) ) ) ) ) ) ) ) ) ) ) CASE NO. BCV-20-100006 PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ DEMURRER PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ DEMURRER OO co ~~ ON wn o h W N = N N N N N N N N m e he me d ke e em t pe he e d pe d 0 ~~ ] O N BR WwW N = OO OY 0 N N B W N = OO TABLE OF CONTENTS PAGE INTRODUCTION cetera eter tees everett sess ess aera seer ee reese a eee ses enararaseernnras 1 SUMMARY OF ALLEGATIONS «ooo eee eee eer verses res ese ses ses erase eres senseserasnassereressesrsnns l LEGAL STANDARD. ....cooiioi eee eee eee eee ee eevee e sarees a seer trees ere erersrre see ee eae sseraes 3 AR GUM ENT ieee eee eer eee ease eee eee esas eter eee aera assesses esses es ranaaarssstsaessssananns 4 1. PLAINTIFFS NEED ONLY ALLEGE ULTIMATE, AND NOT EVIDENTIARY FACTS, IN ORDER TO ASSERT AN ALTER EGO THEORY OF LIABILITY ....ooooiiiiiiieiieeieeeeeeeeceieresrees 4 IL. DEFENDANTS REFLECTS A FUNDAMENTAL MISUNDERSTANDING OF THEIR ROLE IN THE INTERACTIVE PROCESS... ooo eeeeeeeeeee ee seventettes esos tteeesenasinereasssessenssersssesessassnsnesssessons 6 III. PEGGY PROPERLY ASSERTED A CLAIM FOR WRONGFUL TERMINATION .....ovvvvereeriennns 8 IV. PLAINTIFFS PROPERLY SOUGHT BACK WAGES FOR 4 YEARS PURSUANT TO GOV. CODE § L7200 ET SEQ. covvvvvieririiinieieeee esos seeeeeseesseesenererereeessssassersessssorssesssesseessacsesssesssiosssesstsseesesaneres 9 Vv. BECAUSE PLAINTIFFS’ HED Cram IS PREDICATED ON CoNDUCT WHICH IS VIOLATIVE OF EXPRESS STATUTE AND FUNDAMENTAL PUBLIC POLICY, DEFENDANTS’ DEMURRER SHOULD BE DENIED .......oooooviiiinniiiretiiieiieeitseneresereesssssamseenneerseesermescreerssnenes 10 VI PLAINTIFFS SUFFICIENTLY ALLEGED CLAIMS FOR UNPAID OVERTIME. ...........cc........ 11 CONCLUSION .oiiiiriiiiiiisiieisereeeeterererersssssssssssssssssssssresesssssesssesssnstssesessssserroreseststersssnoeieresreses 12 1! 1 1! 1 11! 1! 11! ii I! 1 -ii- PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ DEMURRER Oo © 3 a wn bk WwW N = N O R N O N O N N O N N N DN ee m e e m h m e s he ed he d ed 0 ~ ] O N h h B A W N = O Y N Y W N = O TABLE OF AUTHORITIES FEDERAL CASES PAGE Humphrey v. Memorial Hosps. Ass'n (9th Cir. 2001) 239 F3d 1128 onions assesses 11 Int’l Fin. Servs. Corp. v. Chromas Techs. Canada, Inc., (Tth Cir. 2004) 356 F.30A 731 orient ceeis sieesa eet b ssa eaaara esrb sass evens bens 10 CALIFORNIA CASES Bullock v. City and County of San Francisco (1990) 221 Cal. App.3d 1072 [271 Cal. RPtr. 44]. cocoa 7 Burks v. Poppy Construction Co. (1962) 57 Cal.2d 463 [20 Cal.RPLr. 6097).ccuveiieiieeiieerrrere cerca seers ese snsaessenis 9 Castro-Ramirez v. Dependable Highway Express, Inc. (2016) 2 Cal App.5Sth 1028 [207 Cal Rptr3d 120] ........covcisommiesncmmcsnisamsamssnsissssasssnsssssmasian 13 Cabesuela v. Browning-Ferris Industries of California, Inc. (1998) 68 Cal. App:4th 101 [80 Cal. Bpte2d $0] .ucmummmnnmmssrsmmmomamamasmmmsmsman 15 Cole v. Fair Oaks Fire Protection Dist. (1987) 43 Cal.3d 148, 160 [233 Cal.Rptr. 308] ....ciiiiriieiieriere reece sree sarees 15 Cortez v. Purolator Air Filtration Products Co. (2000) 23 Cal.4th 163, 176 [96 Cal. RPIr.2d S81] uuccviiiiirieriererieiecre sirens eserves 14 Crain v. Electronic Memories & Magnetics Corp. (1975) 530 Cal.Anp.3d 509 [123 Cal. BOI FLD] ii casas isso si iu io simi sidsiominsmiah is ise sssisiimnsimmmnisunss 7 Doe v. City of Los Angeles F2007)-42 Cal 4th 531 [67 Cal Bip 3d 330) cmos sass sams isms Q Evans v. City of Berkeley (2006) 38 Cal.4th 1 [40 Cal. RPtr.3d 205]. viii erecta ern seesaaeniens 7 First Western Bank & Trust Co. v. Bookasta (1968) 267 Cal.App.2d 910 [73 Cal. RPI. 657] .ccvcircerieriirieerisircei ire ren eres sere creas seesenes 9 Gelfo v. Lockheed Martin Corp. (2006) 140 Cal. App.4th 34 [43 Cal. RPI.3d 874] ..cc.civvivivriieerernerneerieeriesssasessssesnensnes 11 Millosy v. Regents of University of California (2008)44 Cal Ath B76 [BO Cal. RPtr. 3 BOD. cussussssssssummssinsanssssss sssssvamsssnnssnanis sins onsssasss 15 Rader Co. v. Stone (1986) 178 Cal.App 3d 10 [228 Cal BRplr, 806] casssmunsamnsmsnmummmmensssssssmmme msw m 7 -1ii- PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ DEMURRER Oo 0 3 S Y nn Bs W N = N O N N N N N N = e s e s h d e a e d e d e a p m E R B E X R U I R E ZS 3 a 2 BP o o 0 2 5 Rope v. Auto-Chlor System of Washington, Inc. (2013) 220 Cal. App.4th 635 [163 Cal. Rptr. 3d 392].....iiiveiiiiirircenccicnr cence 13 Rutherford Holdings, LLC v. Plaza Del Rey (2014) 223 Cal. App.4th 221 [166 Cal. Rptr.3d 864].....ccvvvrverirriirieree cies eevee 9 Scotch v. Art Institute of California (2009) 173 Cal App.4th 986 [93 Cal. Rptr.3d 338] covert eesnas 11, 12 TracFone Wireless, Inc. v. County of Los Angeles (2008) 163 Cal. App.4th 1359 [78 Cal.RPr.3d 466].......ccvurrieriineiiinrecsicise eserves 7 West v. JPMorgan Chase Bank, N.A. {2013) 214 Cal. App 4th 780 [154 Cal.RPUE 3d 28 ...ccsummisscsisissinmtinsmamissssasisenssnsansass si asiisnis 7 Wysinger v. Automobile Club of Southern California [2007] 157 Cal App dil 418 169 Cal. Rpt 38 1]. cmmsmnnsmmummmssmemsmsenssemmmasmmssmsssss 12 STATUTES Labor Code § 558.1 ..ouiiieiieiieieetieeee ec rreerecrecteestreste eaters eter ab ethan a nearer ab ethene rs enb reat ee eae sar e eae eaes 8 Labor Code § T1194 o.oo steerer bese bebe tbe tesa ae resis ante enn eaten ens 14 GOV. C0 § 12940(8).....0eieeriierieriet tierce cess absorbers esas este seers res nee aes 13 CON, CAE BG TIVO) sr0m0ms0sss sessions mwas sss 5455055555585 SHH CERES SH KTH A ARBRE Sr 13 GOV. COE § 17200... ieee cece eee chee etre cheese esa e estes east eres ebe ease esses erssnnseesseesseeeseens 14 GOV. COE § T7208... cece erases ete eet e bees tee seme e ste t eases eases snes a etseesaseeenaeernneant 14 OTHER AUTHORITIES Robert B. Thompson, Piercing the Corporate Veil: An Empirical Study, 76 Cornell L. Rev. 1036, 1036 (1991) .c.couiiiiirrcriieiiriiiie essere eerie sso sre senrese secs, 10 IH 1 I I" I -1V- PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ DEMURRER O 00 ~ I & Wn pH o w N e N O N N N O N N N N N m mm e m e m e m pe de ed Re d a 0 ~~ aN Ln Bh W N = O Y N B R R N N = O INTRODUCTION This is a case about how Defendants Derrel’s Mini Storage, Inc. (“DMS”) and Derrel Ridenour (“Ridenour”) {collectively “Defendants™) hired Plaintiffs James Sconyers (“James”) and Peggy Sconyers (“Peggy”) (collectively “Plaintiffs”) to live, work at, and care for DMS’ Bakersfield location. Yet, during the course of Plaintiffs’ employment, Defendants refused to pay them appropriate wages; provide them compliant meal breaks; and then abruptly terminated their employment after James was injured on the job and requested reasonable accommodations for his disability. After being wrongfully terminated, Plaintiffs filed the instant action against Defendants. In response, Defendants have filed a Demurrer. In their Demutrrer, Defendants do not argue that Plaintiffs failed to allege facts which, if true, would entitle them to relief. Instead, Defendants have chosen to operate in a vacuum of pretermission where well-settled legal and statutory principles cease to apply. Outside this vacuum, however, the arguments submitted by Defendants are of inappreciable relevance to whether Plaintiffs have properly alleged claims for relief. As addressed in turn below, each and every one of Defendants’ arguments in support of dismissal are erroneous, misguided, and lack merit. SUMMARY OF ALLEGATIONS Plaintiffs alleged that DMS and Ridenour were their employers, and that Ridenour owned and/or control DAR and exercised control over the labor practices of all his employees including, but not limited to, Plaintiffs.! Plaintiffs further alleged that Ridenour and DMS are “one and the same” because DMS “is completely dominated and controlled by [Ridenour]; Ridenour has acted on behalf of DMS in violating its employees’ right to receive proper minimum wages; Defendants “derive actual and significant monetary benefits by and through. . their unlawful conduct”; DMS and Ridenour have sought to appear “separate and distinct for the purposes of perpetrating. ..[a] wrongful and inequitable purposes; and DMS and Ridenour have failed to comply with all requisite corporate formalities to maintain a legal and separate corporate existence.’ IFAC at 6 21d. at 99 10-11(g) 1 PLAINTIFFS” OPPOSITION TO DEFENDANTS’ DEMURRER Oo 0 1 S Y Wn: Bs W N N O N O N N N N N N N R m mm e m me e m m d m l ee l e m 0 ~~ AN Wn B A W N = DO O e ~~ N n B W N = OO Plaintiffs alleged that they worked for DMS as “Residential Managers” and lived on-site where they were responsible for overseeing the rental of the 2,000 storage units at the Bakersfield location; ensuring that all of DMS customers’ monthly payments for these units were made on time; handling collections of delinquent accounts; and all other duties associated with running the daily operations of DMS’s Bakersfield location. Plaintiffs were paid $12.50 per hour with commissions of roughly $1,000 per month.* Throughout their employment, Plaintiffs were the only managers on site at any given time and therefore, were not permitted to leave during their shifts. Additionally, throughout all of 2016, Plaintiffs never received any overtime pay despite working between 4 to 20 hours of overtime each | week. Between January and July of 2017, Plaintiffs began to receive overtime pay, but in August 2017, Defendants informed Plaintiffs that they would no longer be paying them for any overtime they worked - which generally averaged between 1 to 4 hours per day.* Additionally, Plaintiffs were never provided with statutorily compliant meal breaks.’ On or about March 12, 2018, an attempted burglary took place at DMS’ Bakersfield location. In attempting to thwart the robbery, Peggy was clipped by the mirror of burglars’ vehicle as they sped away. Because the mirror caused her physical injury, Peggy filed a workers’ compensation claim against DMS.® On or about February 3, 2019, James was injured on the job and was therefore restricted from lifting anything heavier than 5 pounds. James also filed a workers’ compensation claim against DMS.” On or about April 5, 2019, James requested that DMS modify his work duties as a result of his work-related injuries. Two weeks later, on April 19, 2019, | Peggy and James were informed that they were being terminated and that they were to vacate the premises (including their on-site living quarters) within 72 hours. They were further informed that Hd. at qf 17-19 41d. at 9923-25 SId at 27 $Id at 29 "Id at 31 2 PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ DEMURRER NO 0 0 1 YN t h B A W N = be Eg BF BK O B BK Ri BY RI bs E E ph hs a ed pe a es ® VN AR R E L L N S 0 % A t h w R o - o o DMS would not be paying them over $1,000 in commission they were owed from the month of April Plaintiffs thereafter filed this lawsuit alleging Labor Code and Fair Employment and Housing Act (“FEHA”) violations by Defendants including, but not limited to, Defendants’ discriminatory conduct and wrongful termination of Peggy as a result of her association with James - who Plaintiffs allege was terminated because of his disability.’ LEGAL STANDARD The legal methodology for ruling on a demurrer requires the court to assume all well-pled facts to be true and to draw all reasonable inferences in favor of the non-moving party. Evans v. City of Berkeley (2006) 38 Cal.4th 1, 6 [40 Cal Rptr.3d 205]; see also, Crain v. Electronic Memories & Magnetics Corp. (1975) 50 Cal.App.3d 509, 512 [123 Cal.Rptr. 419]. When reviewing the complaint, the Court must not read each allegation in isolation, but instead must read it “as a whole and its parts in their context.” West v. JPMorgan Chase Bank, N.A4. (2013) 214 Cal. App.4th 780, 792 [154 Cal.Rptr.3d 285]. A demurrer only serves to test the sufficiency of a complaint by raising questions of law; it does not serve to resolve contests surrounding the facts, the merits of the claim, or the applicability of defenses. See Rader Co. v. Stone (1986) 178 Cal. App. 3d 10, 20 [223 Cal Rptr. 806]; see also, TracFone Wireless, Inc. v. County of Los Angeles (2008) 163 Cal. App.4th 1359, 1368 [78 Cal.Rptr.3d 466] (“Questions of fact may be resolved on demurrer only when there is only one legitimate inference to be drawn from the allegations of the complaint.”) A demurrer should not be granted unless it “appeat{s] to a certainty that the plaintiff would not be entitled to relief under any set of facts that could be proved.” Bullock v. City and County of San Francisco (1990) 221 Cal. App.3d 1072, 1088 [271 Cal. Rptr. 44]. I 1 1 iu 8 Id. at 9 35-36 ° Id. at 9 85 3 PLAINTIFFS” OPPOSITION TO DEFENDANTS’ DEMURRER © 0 oN wn BR WwW N e N O N N N N RN N N N = km om m s es es ps ee ES T E S E Dc TE N s SR cv a = N e ARGUMENT LL PLAINTIFFS NEED ONLY ALLEGE ULTIMATE, AND NOT EVIDENTIARY FACTS, IN ORDER TO ASSERT AN ALTER EGO THEORY OF LIABILITY According to Ridenour’s individual portion of the Demurrer, Plaintiffs failed to allege facts in support of their attempt to pierce the corporate veil and hold Ridenour individually liable. Thus, Ridenour asserts that the Court should dismiss all of Plaintiffs’ causes of action against him individually. As a threshold issue, under Labor Code § 558.1(a), “[a]ny employer or other person acting on behalf of an employer, who violates, or causes to be violated, any provision regulating minimum wages or hours and days of work in any order of the Industrial Welfare Commission, or violates, or causes to be violated, Sections 203, 226, 226.7, 1193.6, 1194, or 2802, may be held liable as the employer for such violation.” Labor Code § 558.1(b) provides that an “other person” is “a natural person who is an owner, director, officer, or managing agent” of an employer. In the First Amended Complaint (“FAC”), Plaintiffs alleged that Ridnour “owned and/or controlled the business operated by all Defendants and. ..exercised control over the labor practices of each and every one of the employees (inclusive of Plaintiffs){.]”!° Plaintiffs further alleged that even if Ridenour “is not found to be the ‘employer(s)’ of Plaintiffs (by way of direct employment, alter ego, or otherwise) [Ridenour], in fact, caused the violations at-issue in this Complaint, thereby creating individual liability under Labor Code § 558.1.” Based on the allegation that Ridenour “owned and/or controlled the business operated by all Defendants and. ..exercised control over the labor practices of each and every on the employees,” Plaintiffs have alleged sufficient facts to hold Ridenour personally liable for the alleged Labor Code violations under § 558.1. Turning to the alter-ego theory itself, Ridenour argues that all of Plaintiffs’ individual claims which were based on an alter-ego theory of liability should be dismissed because Plaintiffs WFAC at 6 Ud atq7 4 : PLAINTIFFS” OPPOSITION TO DEFENDANTS* DEMURRER $C O o 1 o N nn A W N = N o n o r o N Y 1 NN NN N o po nd -_- - -_- - - - -_- it o k 5 ~ J aN wn EA N 2 nN rh [a w Oo c o ~J aN wh BN Ww & - << “failed to plead a single fact that fits this boilerplate language of the alter ego doctrine.”'? In short, Ridenour’s argument reflects a fundamental misapprehension of pleading standards as they relate to piercing the corporate veil. In Rutherford Holdings, LLC v. Plaza Del Rey (2014) 223 Cal. App.4th 221 [166 Cal.Rptr.3d 864], the California Court of Appeals made crystal clear that in order to survive dismissal of a claim based on an alter-ego theory of liability, the Plaintiff need merely allege - either explicitly or by way of reasonable inference - that (1) the corporation is not only influenced and governed by that person, but that there is a unity of interest and ownership that the individuality, or separateness, of the said person and corporation has ceased; and (2) the facts are such that an adherence to the fiction of the separate existence of the corporation would, under the particular circumstances, sanction a fraud or promote injustice. (Id. at 235-236 citing First Western Bank & Trust Co. v. Bookasta (1968) 267 Cal.App.2d 910, 915-916 [73 Cal.Rptr. 657]). In the FAC, Plaintiffs explicitly alleged the foregoing elements supporting an alter-ego theory of liability.!* California Courts have repeatedly held that a party asserting an alter-ego theory is merely required to allege “ultimate rather than evidentiary facts.” Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550 [67 Cal.Rptr.3d 330] (emphasis added). Consequently, although Plaintiffs’ allegations may not have been accompanied by the factual specificity Defendants desire, the reality is that these allegations are nearly identical to factual allegations which have been held to pass muster in thousands of cases before this one. In this regard, it is unsurprising why Courts across this State are loath to institute some sort of heightened alter-ego pleading requirement: Because in almost every case involving an alter-ego theory, including this one, “the defendant may be assumed to possess knowledge of the facts at least equal, if not superior, to that possessed by the Plaintiff.” Burks v. Poppy Construction Co. (1962) 57 Cal.2d 463, 474 [20 Cal.Rptr. 609]. 12 Demurrer at 4 BFAC at {6-13 5 PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ DEMURRER OO o o 3 S N n n A W N = N O N O R O R O N O N N O N RN H e em em m m em em em X T KR O R R N S ES 0 A O E » R = oo As a brief but important aside, Defendants’ misapprehension of pleading standards related to piercing the corporate veil is likely rooted in the undeveloped rationale underlying the rule itself. To be sure, “piercing the corporate veil is the most litigated issue in corporate law and yet it remains among the least understood.” Robert B. Thompson, Piercing the Corporate Veil: An Empirical Study, 76 Cornell L. Rev. 1036, 1036 (1991) What Defendants appear to misunderstand is that in cases which involve piercing the corporate veil, the corporate veil is not actually pierced and the corporate entity is not disregarded until after judgement is entered against the corporation. Once that occurs, the court would then take the additional step of imposing judgment against a shareholder for the corporation’s liability where liability would otherwise not exist. See, e.g., Int’ Fin. Servs. Corp. v. Chromas Techs. Canada, Inc., 356 F.3d 731, 736 (7 Cir. 2004) (“Piercing the corporate veil...is merely a procedural means of allowing liability on a substantive claim.”) In sum, because there is no heightened pleading requirement associated with alleging an alter-ego theory of liability, this Court should deny Ridenour’s Demurrer and require Ridenour to personally answer for the claims asserted in the FAC. IL DEFENDANTS’ DEMURRER REFLECTS A FUNDAMENTAL MISUNDERSTANDING OF THEIR ROLE IN THE INTERACTIVE PROCESS According to Defendants, James’ claim for failure to engage in the interactive process should be dismissed because (1) he failed to plead facts showing that he initiated the process by requesting a reasonable accommodations; '* (2) he failed to plead facts showing that DMS caused the breakdown in the interactive process; and (3) James’ request for a modification of his accommodation was not a request for accommodation because he “did not bring any possible accommodations to DMS’s attention.” !® On each and every score, Defendants’ arguments are not only misguided, but utterly unsupported by any relevant case law. First, James need not request a specific accommodation before the interactive process is initiated. While “it is the employee’s burden to initiate the process, no magic words are necessary, 4 Demurrer at 5 13 Ibid. 16 1d at 6 6 PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ DEMURRER OO 00 1 S Y n n B W N s BS BS KX KI O RD BS BF KS BE bb BE bb 8 fh RE fe b fe d Gb fd 2 N R 0 R O N R E C O n a r 6G R o and the obligation arises once the employer becomes aware of the need to consider an accommodation.” Gelfo v. Lockheed Martin Corp. (2006) 140 Cal. App.4th 34, 62, n. 22 [43 Cal.Rptr.3d 874); see also, Humphrey v. Memorial Hosps. Ass'n (9th Cir. 2001) 239 F3d 1128, 1137 (*Once an employer becomes aware of the need for accommodation, that employer has a mandatory obligation. ..to engage in an interactive process with the employee to identify and implement appropriate reasonable accommodations.”) Based on the foregoing, Defendants are provably incorrect in their position that James was required to devise and then request a specific accommodation prior fo triggering their duty to engage in the interactive process. Second, Plaintiffs need not plead facts showing that “DMS caused the breakdown in the process.” Instead, the employer must reasonably - and continuously - accommodate limitations imposed by an employee’s disability. See Scotch v. Art Institute of California (2009) 173 Cal. App.4th 986, 1013 [93 Cal.Rptr.3d 338]. “Each party must participate in good faith, undertake reasonable efforts to communicate its concerns, and make available to the other information which is available, or more accessible, to one party. Liability hinges on the objective circumstances surrounding the parties’ breakdown in communication, and responsibility for the breakdown lies with the party who fails to participate in good faith.” Gelfo, 140 Cal. App.4th at 62, n. 22. In this case, James alleged that he notified Defendants of his need for a modification in accommodations, and instead of engaging Plaintiff in a continuing, interactive process, Defendants fired James and his wife.'” For two weeks between notifying Defendants of his need for accommodations and his termination, Defendants simply ignored James’ request. Third, Plaintiff need not devise a specific accommodation before the interactive process is initiated, nor does the fact that Plaintiff failed to bring possible accommodations to Defendants’ attention somehow obviate Defendants’ duty to engage in the interactive process. Indeed, in order “[t]o prevail on a claim... for failure to engage in the interactive process, an employee must identify a reasonable accommodation that would have been available at the time the interactive process should have occurred. An employee cannot necessarily be expected to identify and request all 17 FAC at 99 35-36 7 PLAINTIFFS” OPPOSITION TO DEFENDANTS” DEMURRER OS O o 1 NN Wn R W N = i By ba Bx ka BS BS BY BD Be ne w wm mm x p= ew ew ge s =n es ® DN SX R O N S S 0% 0 Od m E ® oN possible accommodations during the interactive process itself because employees do not have at their disposal the extensive information concerning possible alternative positions or possible accommodations which employers have.” Scotch, 173 Cal. App.4th at 1018 citing Wysinger v. Automobile Club of Southern California (2007) 157 Cal.App.4th 413, 425 [69 Cal Rptr.3d 1]. However, “once the parties have engaged in the litigation process, to prevail, the employee must be able to identify an available accommodation the interactive process should have produced: Section 12940(n) which requires proof of failure to engage in the interactive process, is the appropriate cause of action where the employee is unable to identify a specific, available reasonable accommodation while in the workplace and the employer fails to engage in a good faith interactive process to help identify one, but the employee is able to identify a specific, available reasonable accommodation through the litigation process.” Scotch, 173 Cal.App.4th at 1018- 1019 (emphasis added) (citations omitted). Because it is well-settled that an employee need not identify a specific accommodation prior to triggering the interactive process, Defendants are completely incorrect in arguing that James was required to plead facts showing that he had devised a specific accommodation and presented that accommodation to Defendants. For all of these reasons, Plaintiffs properly pled a claim for failure to engage in the interactive process, and Defendants’ Demurrer on this claim should be denied. III. PEGGY PROPERLY ASSERTED A CLAIM FOR WRONGFUL TERMINATION According to Defendants, Peggy’s claim for wrongful termination based on association fails because she does not allege a violation of a policy embodied in a statute or constitution. '® To begin with, Defendants have not sought to dismiss James’ claim for wrongful termination - thereby acknowledging the sufficiency of the allegation for the purposes of surviving demurrer. Thus, Defendants’ argument appears to be that wrongful termination on the basis of association is not a claim upon which relief can be granted. In typical fashion, Defendants are incorrect yet again. 8 Demurrer at 7 8 PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ DEMURRER SO OO 0 N N Wn B W N e bh No N o N o N N NS rN NY J pm - - - - - - - - oC 1] a N Wn B R A W N Rm, E W N ee The California Court of Appeals has made clear that FEHA provides a cause of action for associational discrimination. See Rope v. Auto-Chlor System of Washington, Inc. (2013) 220 Cal. App.4th 635, 656-657 [163 Cal. Rptr. 3d 392] (superseded by statute on other grounds). The rationale behind associational causes of action under FEHA is that FEHA makes it unlawful for an employer, “because of the...physical disability...of any person. ..to discharge the person from employment... or to discriminate against the person...in terms, conditions, or privileges of employment.” Gov. Code, § 12940(a). Yet, the very definition of a “physical disability” embraces association with a physically disabled person. Specifically, FEHA explains that the phrase “‘physical disability’...includes a perception... that the person is associated with a person who has, or is perceived to have” a physical disability. Gov. Code § 12926(0) (emphasis added). Accordingly, when FEHA forbids discrimination based on a disability, it also forbids discrimination based on a person’s association with another who has a disability. See Castro- Ramirez v. Dependable Highway Express, Inc. (2016) 2 Cal. App.5th 1028, 1038-1039 [207 Cal. Rptr.3d 120]. Here, Plaintiff alleged that she was terminated based on her association with a co-worker who suffered from a disability.' Under Gov. Code § 12926(0), Plaintiff has stated a claim for wrongful termination based on association. IV. PLAINTIFFS PROPERLY SOUGHT BACK WAGES FOR 4 YEARS PURSUANT TO GOV. CODE § 17200 ET SEQ. According to Defendants, “[u]nder Section 338, Plaintiffs’ action can only encompass paydays within three years of the date their Complaint was filed - not four years. Therefore, Plaintiffs are not entitled to recovery for their statutory claims that accrued prior to January 2, 2017[.]°%° Simply put, Defendants are completely incorrect. Gov. Code § 17200 et seq. (“UCL”) “authorizes an order compelling a defendant to pay back wages as a restitutionary remedy.” Cortez v. Purolator Air Filtration Products Co. (2000) 23 Cal.4th 163, 176 [96 Cal.Rptr.2d 581]. Thus, an equitable action under the UCL which seeks four YFEAC at q 85 20 Demurrer at 9-10 9 PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ DEMURRER Oo O o N N nn Bs W N No [N o N N NY N N rN b a pt ht od bo k f t Jd Yo J. po m 0 1 N W R W N D O O N Y R W N D years of back pay is entirely appropriate even though it would not be appropriate under the Labor Code statute dealing with unpaid wages. See, e.g., Id. at 178-179 (Finding that four-year statute of limitations governs rather than the three-year period of limitations that would otherwise apply in an action to recover unpaid overtime brought under Lab. Code § 1194.) Additionally, the UCL clearly and unequivocally allows a party to proceed with “[a]ny action to enforce any cause of action under this chapter... within four years after the cause of action accrued.” Gov. Code § 17208 (emphasis added). Courts throughout the State of California have routinely recognized that any business act or practice that violates the Labor Code through failure to pay wages is, in and of itself, an unfair business practice. Here, Plaintiffs alleged that Defendants’ failure to pay wages, amongst many other alleged violations of the Labor Code, all constituted unlawful business practices, and accordingly, Plaintiffs are perfectly within their rights to seek damages for the past four years of violations. All of these violations, while certainly being stand-alone statutory violations, are also violations of the UCL - which thereby subjects Defendants to damages which accrued over the past four years. For this reason, Plaintiffs are entirely within their rights to seek damages which have accrued over the past 4 years pursuant to the provision of Gov. Code § 12000 ef seq. V. BECAUSE PLAINTIFFS’ ITED CLAIM IS PREDICATED ON CONDUCT WHICH IS VIOLATIVE OF AN EXPRESS STATUTE AND FUNDAMENTAL PUBLIC POLICY, DEFENDANTS’ DEMURRER SHOULD BE DENIED Physical and emotional injuries sustained in the course of employment are preempted by the workers’ compensation scheme and generally will not support an independent cause of action. Cole v. Fair Oaks Fire Protection Dist. (1987) 43 Cal.3d 148, 160 [233 Cal.Rptr. 308]. Emotional injuries caused by workplace discipline, including termination, fall within this rule. (Zbid.) The exception to this general rule of preemption exists when the intentional infliction of emotional distress claim is based on conduct that violates a fundamental public policy. See, e.g., Cabesuela v. Browning-Ferris Industries of California, Inc. (1998) 68 Cal.App.4th 101 [80 Cal. Rptr. 2d 60]. In Miklosy v. Regents of University of California (2008) 44 Cal.4th 876 [80 Cal. Rptr. 3d 6901], the court clarified that this exception does not allow a cause of action for intentional 10 PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ DEMURRER O 0 0 3 YN n n BR W N ki bo Ba 89 Kd BS Bo BS BY be ek ed ek dE ek fe d Ba d e X T A D L N N S S D0 ® Aa a r m R = oo infliction of emotional distress if the claim is “not dependent upon the violation of an express statute or violation of fundamental public policy.” (Id. at 902). In other words, a claim for severe emotional distress which arises in the employment context must be predicated on underlying conduct which would constitute a violation of public policy. As explained in Cabesuela, wrongful termination and discriminatory conduct can constitute a basis for asserting a claim for intentional infliction of emotional distress within the employment context. In this case, Plaintiffs predicated their claim for intentional infliction of emotional distress ("IIED”) on conduct which was, in itself, a violation of statute and public policy. Specifically, Plaintiffs alleged that “with no notice or any indication prior, [and] a mere two weeks after James requested modified accommodations for his work-related disability, Defendants sent four individuals from the corporate office to Bakersfield to inform Plaintiffs that they were terminated and had 72 hours to move out of the on-site residence that had been their home for three years. No explanation was given.” When drawing all reasonable inferences in favor of the non-moving party, the most reasonable inference to be drawn is that as result of Defendants’ unlawful and discriminatory conduct in terminating James because of his disability, Plaintiffs suffered emotional distress. Thus, the claim for emotional distress is predicated on, and intertwined with, Plaintiffs’ claims for disability discrimination and wrongful termination - both of which are statuory claims based on violation of public policy. VI. PLAINTIFFS SUFFICIENTLY ALLEGED CLAIMS FOR UNPAID OVERTIME According to Defendants, Plaintiffs, never alleged working more than 8 hours in one day nor more than 40 hours in one week; only legal conclusions[.]”?! In the FAC, Plaintiffs alleged that “throughout all of 2016, neither of the Plaintiffs received any overtime pay despite working between 4 to 20 hours of overtime each week” and further alleged that in August 2017, they were informed they would not receive overtime pay despite working 1-4 hours of overtime per day.?? 2 Demurrer at 10 2 FAC at 1] 24-25 PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ DEMURRER Oo 0 3 O N nm Bs W N D O N R O N N O N OR N O N O N Re sa o m H e eH ea a es pe c o ~ ~ ] O N Wn bh W N = O C 0 N N Wn R W N = In light of the foregoing allegations which specifically identify the approximate hours Plaintiffs worked in overtime each week/day, and that Defendants did not pay them for those overtime hours, Plaintiffs are having great difficulty delineating precisely why Defendants would assert such a facially ridiculous argument. Whatever the reason, the reality is that Plaintiffs sufficiently alleged a claim for overtime, and Defendants have no defensible ground upon which to continue standing on the ridiculous assertion that Plaintiffs failed to allege that they actually worked more than 8 hours in a day. CONCLUSION For the reasons stated herein, Plaintiffs James and Peggy Sconyers respectfully request that Defendants’ Demurrer be denied in its entirety. To the extent the Court determines that any of the claims were improperly pled, Plaintiffs respectfully request permission to amend their pleadings to more particularly point out the basis for the relief sought. Date: June 22, 2020 FRONTIER LAW CENTER Rare Rarapetgan Karo G. Karapetyn Attorneys for Plaintiffs James and Peggy Sconyers 12 PLAINTIFFS” OPPOSITION TO DEFENDANTS’ DEMURRER Oo o o 3 O N Wn As WwW N = N N N N N N N N N = e m ee d e e e m e m pe e e d e d p e 00 3 S N wn Re W N = O Y e N N I E B R E W e s OO PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES I am employed in the County of Los Angeles, State of California. I am over the age of 18 and not a party to this action; my business address is 23901 Calabasas Rd., #2074, Calabasas, CA 91302 : On June 23, 2020, I served the foregoing document(s) described as set forth below on the interested parties in this action by placing true copies thereof enclosed in sealed envelopes. Document(s) Served: Plaintiff’s Opposition to Defendant’s Demurrer Person(s) Served: Sagaser, Watkins & Wieland PC Ian B. Wieland Chris Rusca 5260 N Palm Ave, Suite 400 Fresno, CA 93704 Tel: (559) 421-7000 E-mail: : ian@sw2law.com; chris@sw2law.com XX _ (BY MAIL) I deposited such envelope in the mail at Calabasas, California. The envelope was mailed with postage thereon fully prepaid. XX (By EMAIL or ELECTRONIC TRANSMISSION): Based on a court order or an agreement of the parties to accept service by e-mail or electronic transmission, I caused the documents to be sent to the person(s) at the e-mail address(es) listed on the attached service list or above. I did not receive, within a reasonable time after the transmission, any electronic message or other indication that the transmission was unsuccessful. (BY FAX) I hereby certify that this document was served by fax delivery on all parties listed herein at their respective most recent fax numbers of record in this action on this date. XX (STATE) I declare under penalty of perjury under the laws of the State of California that the above is true and correct. -. (FEDERAL) I declare that I am employed in the office of a member of the bar of this court, at whose direction the service was made. EXECUTED at Calabasas, California on June 23, 2020 He hiather Bourne Heather Bourne PROOF OF SERVICE
