This case was last updated from Los Angeles County Superior Courts on 05/06/2019 at 13:26:00 (UTC).

KIRK RICHARDS VS LINDY OFFICE PRODUCTS

Case Summary

On 06/09/2016 KIRK RICHARDS filed a Labor - Wrongful Termination lawsuit against LINDY OFFICE PRODUCTS. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are SAMANTHA P. JESSNER and SAMANTHA JESSNER. The case status is Disposed - Dismissed.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****3264

  • Filing Date:

    06/09/2016

  • Case Status:

    Disposed - Dismissed

  • Case Type:

    Labor - Wrongful Termination

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

SAMANTHA P. JESSNER

SAMANTHA JESSNER

 

Party Details

Plaintiff and Petitioner

RICHARDS KIRK

Defendants and Respondents

DOES 1-20

LINDY OFFICE PRODUCTS

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

THE KRUGER LAW FIRM

KRUGER JACKIE ROSE

Defendant and Respondent Attorney

TRESSLER LLP

 

Court Documents

SUBSTITUTION OF ATTORNEY

8/3/2018: SUBSTITUTION OF ATTORNEY

Unknown

4/9/2019: Unknown

Unknown

6/15/2016: Unknown

Unknown

7/26/2016: Unknown

DEFENDANT LINDY OFFICE PRODUCTS NOTICE OF POSTING JURY FEES

9/14/2016: DEFENDANT LINDY OFFICE PRODUCTS NOTICE OF POSTING JURY FEES

Unknown

9/14/2016: Unknown

DEFENDANT LINDY OFFICE PRODUCTS' NOTICE OF MOTION AND MOTION FOR SANCTIONS AGAINST PLAINTIFF AND HIS COUNSEL PURSUANT TO CCP 128.7; ETC.

9/27/2016: DEFENDANT LINDY OFFICE PRODUCTS' NOTICE OF MOTION AND MOTION FOR SANCTIONS AGAINST PLAINTIFF AND HIS COUNSEL PURSUANT TO CCP 128.7; ETC.

CASE MANAGEMENT ORDER

9/28/2016: CASE MANAGEMENT ORDER

DEFENDANT LINDY OFFICE PRODUCTS? REPLY TO PLAINTIFF'S OPPOSITION TO DEMURRER AND REPLY TO PLAINTIFF'S OPPOSITION TO MOTION FOR SANCTIONS

10/13/2016: DEFENDANT LINDY OFFICE PRODUCTS? REPLY TO PLAINTIFF'S OPPOSITION TO DEMURRER AND REPLY TO PLAINTIFF'S OPPOSITION TO MOTION FOR SANCTIONS

ORDER RE: DEFENDANT LINDY OFFICE PRODUCTS' (1) DEMURRER TO PLAINTIFF'S COMPLAINT; AND (2) MOTION FOR SANCTIONS AGAINST PLAINTIFF AND HIS COUNSEL PURSUANT TO CCP ? 128.7

10/20/2016: ORDER RE: DEFENDANT LINDY OFFICE PRODUCTS' (1) DEMURRER TO PLAINTIFF'S COMPLAINT; AND (2) MOTION FOR SANCTIONS AGAINST PLAINTIFF AND HIS COUNSEL PURSUANT TO CCP ? 128.7

NOTICE OF RULING AND ORDER OF DISMISSAL OF LITIGATION WITH PREJUDICE

10/21/2016: NOTICE OF RULING AND ORDER OF DISMISSAL OF LITIGATION WITH PREJUDICE

NOTICE OF MOTION AND PLAINTIFF?S MOTION FOR RECONSIDERATION OF SANCTIONS AWARD AGAINST PLAINTIFF AND HIS COUNSEL;

10/31/2016: NOTICE OF MOTION AND PLAINTIFF?S MOTION FOR RECONSIDERATION OF SANCTIONS AWARD AGAINST PLAINTIFF AND HIS COUNSEL;

DECLARATION OF JEANNE KUO RIGGINS IN SUPPORT OF DEFENDANT'S NOTICE OF NON-RECEIPT OF PLAINTIFF'S SUPPORTING PAPERS AND OPPOSITION TO PLAINTIFF'S MOTION FOR RECONSIDERATION

11/18/2016: DECLARATION OF JEANNE KUO RIGGINS IN SUPPORT OF DEFENDANT'S NOTICE OF NON-RECEIPT OF PLAINTIFF'S SUPPORTING PAPERS AND OPPOSITION TO PLAINTIFF'S MOTION FOR RECONSIDERATION

Minute Order

1/17/2017: Minute Order

NOTICE OF RULING AND NOTICE OF ENTRY OF ORDER DENYING PLAINTIFF'S MOTION TO VACATE JUDGMENT ETC.

1/18/2017: NOTICE OF RULING AND NOTICE OF ENTRY OF ORDER DENYING PLAINTIFF'S MOTION TO VACATE JUDGMENT ETC.

NOTICE OF DEFAULT (UNLIMITED CIVIL APPEALS)

4/12/2017: NOTICE OF DEFAULT (UNLIMITED CIVIL APPEALS)

APPELLANT'S NOTICE DESIGNATING RECORD ON APPEAL (UNLIMITED CIVIL CASE)

4/26/2017: APPELLANT'S NOTICE DESIGNATING RECORD ON APPEAL (UNLIMITED CIVIL CASE)

NOTICE TO REPORTER TO PREPARE TRANSCRIPT ON APPEAL PER CRC RULE 8.124

5/24/2017: NOTICE TO REPORTER TO PREPARE TRANSCRIPT ON APPEAL PER CRC RULE 8.124

34 More Documents Available

 

Docket Entries

  • 04/09/2019
  • at 1:30 PM in Department 1, Samantha Jessner, Presiding; Court Order

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  • 04/09/2019
  • Certificate of Mailing for (Minute Order (Court Order) of 04/09/2019); Filed by Clerk

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  • 04/09/2019
  • Minute Order ( (Court Order)); Filed by Clerk

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  • 08/03/2018
  • SUBSTITUTION OF ATTORNEY

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  • 08/03/2018
  • Substitution of Attorney; Filed by Defendant/Respondent

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  • 07/31/2017
  • at 09:00 AM in Department 31; Jury Trial - Not Held - Advanced and Vacated

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  • 07/31/2017
  • Minute order entered: 2017-07-31 00:00:00; Filed by Clerk

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  • 07/21/2017
  • at 08:30 AM in Department 31; Final Status Conference - Not Held - Advanced and Vacated

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  • 07/21/2017
  • Minute order entered: 2017-07-21 00:00:00; Filed by Clerk

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  • 05/30/2017
  • at 08:30 AM in Department 31; Post-Mediation Status Conference - Not Held - Advanced and Vacated

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79 More Docket Entries
  • 08/26/2016
  • Demurrer; Filed by Defendant/Respondent

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  • 07/26/2016
  • Notice and Acknowledgment of Receipt; Filed by Plaintiff/Petitioner

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  • 07/26/2016
  • NOTICE OF ACKNOWLEDGEMENT OF RECEIPT - CIVIL

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  • 06/15/2016
  • OSC-Failure to File Proof of Serv; Filed by Clerk

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  • 06/15/2016
  • ORDER TO SHOW CAUSE HEARING

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  • 06/13/2016
  • NOTICE OF CASE MANAGEMENT CONFERENCE

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  • 06/13/2016
  • Notice of Case Management Conference; Filed by Clerk

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  • 06/09/2016
  • COMPLAINT FOR DAMAGES: 1. WRONGFUL TERMINATION IN VIOLATION OF PUBLIC POLICY, ETC

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  • 06/09/2016
  • SUMMONS

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  • 06/09/2016
  • Complaint; Filed by Kirk Richards (Plaintiff)

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Tentative Rulings

Case Number: BC623264    Hearing Date: December 12, 2019    Dept: 31

DEMURRER TO THE SEVENTH CAUSE OF ACTION IS SUSTAINED WITHOUT LEAVE TO AMEND, OVERRULED ON ALL OTHER GROUNDS.

Relevant Background 

On June 9, 2016, Plaintiff Kirk Richards filed the instant action against Defendant Lindy Office Products and Does 1 to 20. The Complaint asserts causes of action for:

  1. Wrongful Termination in Violation of Public Policy;

  2. Wrongful Termination in Violation of FEHA;

  3. Retaliation;

  4. Disability Discrimination in Violation of FEHA;

  5. Discrimination on the Basis of Taking Disability and FMLA Leave;

  6. Failure to Accommodate Disability; and

  7. Failure to Engage in the Interactive Process.

On October 20, 2016, the Court granted Defendant’s motion for sanctions and dismissed the action with prejudice. On May 26, 2019, the Court of Appeal issued a remittitur, reversing the judgment and remanding the case to the trial court to conduct further proceedings. On August 26, 2019, Plaintiff filed the First Amended Complaint. On December 2, 2019, pursuant to this Court’s August 27, 2019 Minute Order, the parties filed a joint statement indicating that Plaintiff agreed to withdraw the amended complaint. Accordingly, the Court strikes the First Amended Complaint filed on August 26, 2019 and deems the Complaint filed on June 9, 2016 the operative complaint.

Legal Standard

A demurrer for sufficiency tests whether the complaint states a cause of action. Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747. When considering demurrers, courts read the allegations liberally and in context. (Wilson v. Transit Authority of City of Sacramento (1962) 199 Cal.App.2d 716, 720-21.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleading alone, and not on the evidence or facts alleged.” (E-Fab, Inc. v. Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.) As such, the court assumes the truth of the complaint’s properly pleaded or implied factual allegations. (Id.) However, it does not accept as true deductions, contentions, or conclusions of law or fact. (Stonehouse Homes LLC v. City of Sierra Madre (2008) 167 Cal.App.4th 531, 538.)

Discussion

Demurrer to the Entire Complaint

The elements of a claim for¿wrongful¿termination¿in violation of¿public¿policy¿are: (1) plaintiff's employment was actually terminated; (2) in violation of a policy that is: (a) delineated in either constitutional or statutory provisions; (b) public in the sense that it inures to the benefit of the public; (c) well established at the time of the discharge; and (d) substantial and fundamental; and (3) damages.¿(Barbee v. Household Automotive Finance Corp.¿(2003) 113 Cal.App.4th 525, 533;¿Holmes v. General Dynamics Corp.¿(1993) 17 Cal.App.4th 1418, 1426;¿Kelly v. Methodist Hospital¿(2000) 22 Cal. 4th 1108, 1112 (referencing damages from¿wrongful¿termination).)

“[I]n order to establish a prima facie case of retaliation under the FEHA, a plaintiff must show (1) he or she engaged in a “protected activity,” (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer's action.” (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.)  

Government Code § 12940(m)(2) makes it unlawful for an employer to¿“retaliate or otherwise discriminate against a person for requesting accommodation under this subdivision, regardless of whether the request was granted.” 

To establish a prima facie case of disability discrimination, the employee must demonstrate that “he or she (1) suffered from a disability, or was regarded as suffering from a disability; (2) could perform the essential duties of the job with or without reasonable accommodations, and (3) was subjected to an adverse employment action because of the disability or perceived disability.” (Wills v. Superior Court (2011) 195 Cal.App.4th 143, 159-160.) 

To state a prima facie case of on the basis of taking disability and FMLA leave, a plaintiff must allege that (1) the claimant was eligible for the FMLA’s protection; (2) the employer was covered by the FMLA; (3) the claimant was entitled to leave under the FMLA; (4) the claimant provided sufficient notice of intent to take leave; and (5) the employer denied the FMLA benefits. (Mora v. Chem-Tronics, Inc. (S.D. Cal. 1998 16 F.Supp.2d 1192, 1202-1203.)

“The elements of a failure to accommodate claim are (1) the plaintiff has a disability under the FEHA, (2) the plaintiff is qualified to perform the essential functions of the position, and (3) the employer failed to reasonably accommodate the plaintiff's disability.” (Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1009–1010.) 

Defendant demurs to the entire complaint arguing that Plaintiff cannot establish that he was actually terminated by Defendant. Defendant asserts that Plaintiff’s complaint is premised on a single allegation regarding a letter he received from Defendant’s 401(k) Plan Administrator that his 401(k) was disbursed. (Complaint ¶ 15.) Defendant contends that this letter is not one from Defendant and does not provide the reasons for the alleged termination.

Defendant argues that each of Plaintiff’s claims require an allegation that an adverse employment action, such as termination, took place. Defendant asserts that Plaintiff alleges he was terminated through a letter received by the 401(k) Plan Administrator that had no explanation or other information concerning Plaintiff’s alleged termination. Defendant contends that Plaintiff was not actually terminated by Defendant. Defendant argues that Plaintiff’s entire complaint is thus subject to demurrer for failure to state facts sufficient to constitute the causes of action raised by Plaintiff.

In opposition, Plaintiff argues that he has sufficiently alleged his first, second, third, and fourth causes of action. Plaintiff asserts that Defendant ignores the general demurrer standard wherein a demurrer can raise only issues of law and not fact. 

The Court finds that Plaintiff has sufficiently alleged an adverse employment action: his termination. While Defendant argues that Plaintiff cannot establish that he was actually terminated, such an argument is a factual dispute that cannot be determined on demurrer. As noted by Defendant, a demurrer tests the pleading alone, and not the evidence or facts alleged. Here, Plaintiff has sufficiently alleged that he was terminated by Defendant. (Complaint ¶ 15, 18, 22.) Plaintiff need not allege facts to establish such an allegation; only ultimate facts must be pled.

Based on the foregoing, Defendant’s demurrer to the entire complaint on the basis of a failure to allege an adverse employment action is OVERRULED.

Fifth Cause of Action for Discrimination on the Basis of Taking Disability and FMLA Leave

To state a prima facie case of on the basis of taking disability and FMLA leave, a plaintiff must allege that (1) the claimant was eligible for the FMLA’s protection; (2) the employer was covered by the FMLA; (3) the claimant was entitled to leave under the FMLA; (4) the claimant provided sufficient notice of intent to take leave; and (5) the employer denied the FMLA benefits. (Mora v. Chem-Tronics, Inc. (S.D. Cal. 1998 16 F.Supp.2d 1192, 1202-1203.)

Defendant demurs to the fifth cause of action for discrimination on the basis of taking disability and FMLA leave on the grounds that the Complaint is completely devoid of allegations that Defendant is an employer covered by the FMLA or the CFRA, or that Plaintiff was entitled to leave under the FMLA or CFRA. Defendant asserts that although the Complaint includes allegations of Plaintiff’s alleged disability, Plaintiff fails to include any allegations that he qualifies for leave under the FMLA or the CFRA.

In opposition, Plaintiff argues that he has sufficiently pled his cause of action for discrimination on the basis of taking disability and FMLA leave.

The Court finds that Plaintiff has alleged facts sufficient to state a cause of action for discrimination on the basis of taking disability and FMLA leave. Here, Plaintiff alleges that he was an employee of Defendant, “took a protected disability leave,” and instead of continuing “his disability leave as an accommodation,” “Lindy terminated Plaintiff.” (Complaint ¶ 62-64.) While Defendant argues that Plaintiff has failed to allege that Defendant is an employer covered by the FMLA or CFRA or that Plaintiff was entitled to leave under the FMLA or CFRA, such allegations can be inferred from Plaintiff’s allegation that he “took a protected disability leave.”

Based on the foregoing, Defendant’s demurrer to the fifth cause of action is OVERRULED.

Seventh Cause of Action for Failure to Engage in the Interactive Process

Government Code section 12940(n) makes it unlawful “[f]or an employer or other entity covered by this part to fail to engage in a timely, good faith, interactive process with the employee or applicant to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee or applicant with a known physical or mental disability or known medical condition.” 

“‘[T]he interactive process requires communication and good-faith exploration of possible accommodations between employers and individual employees' with the goal of ‘identify[ing] an accommodation that allows the employee to perform the job effectively. [Citations] [F]or the process to work ‘[b]oth sides must communicate directly, exchange essential information and neither side can delay or obstruct the process.’ [Citations] When a claim is brought for failure to reasonably accommodate the claimant's disability, the trial court's ultimate obligation is to ‘“isolate the cause of the breakdown . . . and then assign responsibility” so that “[l]iability for failure to provide reasonable accommodations ensues only where the employer bears responsibility for the breakdown.” (Nadaf-Rahrov v. Neiman Marcus Group, Inc. (2008) 166 Cal.App.4th 952, 984-985.) “However, the fact that an employer took some steps to work with an employee to identify reasonable accommodations does not absolve the employer of liability under section 12940(n). If the employer is responsible for a later breakdown in the process, it may be held liable.” (Id. at 985.)

Defendant demurs to the seventh cause of action for failure to engage in the interactive process arguing that while Plaintiff’s complaint lists a seventh cause of action, the Complaint is completely devoid of a section for the seventh cause of action. Defendant asserts that accordingly, there are absolutely no allegations in the complaint to support that claim.

In opposition, Plaintiff argues that he has not pled a seventh cause of action, as the inclusion of a seventh cause of action in the Complaint’s caption was a clear typographical error.

Based on the foregoing, Defendant’s demurrer to the seventh cause of action is SUSTAINED without leave to amend.

Conclusion

Defendant’s demurrer to the first through sixth causes of action is OVERRULED. Defendant’s demurrer to the seventh cause of action is SUSTAINED without leave to amend.  Moving party to give notice.