JEREMY MCDANIEL VS FLASHCO MANUFACTURING, INC., ET AL.

Tentative Rulings

Case Number: *******9497    Hearing Date: May 4, 2021    Dept: 34

SUBJECT: (1) Motion for Summary Judgment/ Adjudication

Moving Party: Defendant Insperity Peo Services, L.P.

Resp. Party: Plaintiff Jeremy McDaniel

(2) Motion for Summary Judgment/ Adjudication

Moving Party: Defendant Flashco Manufacturing, Inc.

Resp. Party: Plaintiff Jeremy McDaniel

Defendant Flashco’s motion for summary judgment is GRANTED.

Defendant Insperity’s motion for summary judgment is GRANTED.

BACKGROUND:

Plaintiff Jeremy McDaniel commenced this action on March 9, 2020 and on July 24, 2020, Plaintiff filed a first amended complaint (“FAC”) against Defendants Flashco Manufacturing, Inc. and Insperity Peo Services, L.P. for (1) disability discrimination; (2) failure to accommodate; (3) failure to engage in an interactive process; (4) retaliation under FEHA; (5) failure to prevent harassment and discrimination; (6) interference under CFRA; (7) retaliation under CFRA; (8) hostile work environment; and (9) wrongful termination in violation of public policy.

On September 8, 2020, the Court overruled Defendant Insperity Peo Services, L.P.’s demurrer and denied its motion to strike.

On February 16, 2021, Defendant Insperity Peo Services, L.P. and Defendant Flashco Manufacturing, Inc. filed the instant motions for summary judgment, or in the alternative, summary adjudication.

ANALYSIS:

I. Motions for Summary Judgment/Adjudication

A. Evidentiary Objections

California Rules of Court, rule 3.1354, subdivision (c) requires a party submitting written objections to evident to submit with the objections a proposed order. (Id. at subd. (c).) The proposed order must include places for the court to indicate whether it has sustained or overruled each objection and must include a place for the signature of the judge. (Ibid.) California Rules of Court, rule 3.1354, subdivision (b) also requires each written objection to be numbered consecutively. (Id. at subd. (b).)

Plaintiff submits 113 evidentiary objections to the evidence in support of Defendant Flashco Manufacturing, Inc.’s motion. Defendants Flashco Manufacturing, Inc. and Insperity Peo Services, L.P. each submit 10 evidentiary objections to the declaration of Plaintiff. However, these objections do not include proposed orders and there are no places for the signature of the judge. (Cal. Rules of Court, rule 3.1354, subd. (c).) Further, Defendants’ evidentiary objections are not numbered consecutively. (Id. at subd. (b).)

The Court declines to consider these objections.

B. Legal Standard

1. Motions for Summary Judgment or Adjudication

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) Code of Civil Procedure Section 437c, subdivision (c) “requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)

The materiality of a disputed fact is measured by the pleadings, which set the boundaries of the issues to be resolved at summary judgment. (Conroy v. Regents of University of California (2009) 45 Cal.4th 1244, 1250.) “Thus, a ‘defendant moving for summary judgment need address only the issues raised by the complaint; the plaintiff cannot bring up new, unpleaded issues in his or her opposing papers.’” (Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1253, as modified on denial of reh’g (July 7, 2008), quoting Government Employees Ins. Co. v. Superior Court (2000) 79 Cal.App.4th 95, 98-99, fn. 4.)

“ ‘To create a triable issue of material fact, the opposition evidence must be directed to issues raised by the pleadings. [Citation.] If the opposing party's evidence would show some factual assertion, legal theory, defense or claim not yet pleaded, that party should seek leave to amend the pleadings before the hearing on the summary judgment motion. [Citations.]’” (Id. at p. 1253, quoting Distefano v. Forester (2001) 85 Cal.App.4th 1249, 1264-1265.)

As to each claim as framed by the complaint, the defendant moving for summary judgment must satisfy its initial burden of proof by presenting facts to negate an essential element, or to establish a defense. (Code Civ. Proc., ; 437c, subd. (p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520 (Scalf).)

More specifically, “[o]n a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” (Scalf, supra, 128 Cal.App.4th at p. 1519.) A defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.” (Code Civ. Proc., ; 437c, subd. (p)(2).) The moving party has the burden of negating only those theories of liability as alleged in the complaint and are not obligated to refute liability on some theoretical possibility not included in the pleadings, simply because such a claim is raised in a responding party’s declaration in opposition to a motion for summary judgment. (Conroy, supra, 45 Cal.4th at p. 1254, internal citations omitted.)

“Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Code Civ. Proc., ; 437c, subd. (p)(2).) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.)

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” (Id. at p. 467; Code Civ. Proc., ; 437c, subd. (c).) 

2. Motions for Summary Judgment or Adjudication in Relation to Adverse Employment Action

“[A] case [of discrimination] may be built on direct or circumstantial evidence, or both. [Citations.] “‘Direct evidence is evidence which, if believed, proves the fact [of discriminatory animus] without inference or presumption.’” [Citation.] Where a plaintiff offers direct evidence of discrimination that is believed by the trier of fact, the defendant can avoid liability only by proving the plaintiff would have been subjected to the same employment decision without reference to the unlawful factor. ([Citations]; see, Trans World Airlines, Inc. v. Thurston (1985) 469 U.S. 111, 121 [direct evidence of discrimination renders shifting burdens of McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, inapplicable].) Since plaintiffs in employment discrimination cases most often lack direct evidence of the employer's discriminatory intent, however, courts rely on a system of shifting burdens to aid the presentation and resolution of such claims. [Citations.]” (Morgan v. Regents of University of Cal. (2000) 88 Cal.App.4th 52, 67–68.)

When deciding issues of adverse employment actions, such as retaliation, discrimination, and wrongful termination, the court applies the McDonnell Douglas shifting burdens test. (Caldwell v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 203; Loggins v. Kaiser Permanente Intern. (2007) 151 Cal.App.4th 1102, 1108–09.) Under this test, “if the employer presents admissible evidence either that one or more of plaintiff's prima facie elements is lacking, or that the adverse employment action was based on legitimate, nondiscriminatory factors, the employer will be entitled to summary judgment unless the plaintiff produces admissible evidence which raises a triable issue of fact material to the defendant's showing.” (Caldwell, supra, 41 Cal.App.4th at p. 203.) “Thus, the burdens of proof for purposes of a defendant's motion for summary judgment are precisely the same as those mandated by McDonnell Douglas.” (Id.) Therefore, the initial burden rests with the Defendant.

“Once the employer makes a sufficient showing of a legitimate reason for discharge, i.e., that it had a lawful, nondiscriminatory reason for the termination then the discharged employee seeking to avert summary judgment must demonstrate either (by additional facts or legal argument) that the defendant's showing was in fact insufficient or (by competent evidentiary materials) that there was a triable issue of fact material to the defendant's showing. With respect to the latter choice, the employee must produce substantial responsive evidence that the employer's showing was untrue or pretextual. For this purpose, speculation cannot be regarded as substantial responsive evidence.” (Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 225.)

“[T]he great weight of federal and California authority holds that an employer is entitled to summary judgment if, considering the employer's innocent explanation for its actions, the evidence as a whole is insufficient to permit a rational inference that the employer's actual motive was discriminatory.” (Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 361.) “It is the employer's honest belief in the stated reasons for firing an employee and not the objective truth or falsity of the underlying facts that is at issue in a discrimination case.” (King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 436.)

C. Discussion

1. Defendant Flashco Manufacturing, Inc.’s Motion

Defendant Flashco Manufacturing, Inc. (“Flashco”) moves for summary judgment, or in the alternative, for summary adjudication, for each cause of action in the FAC because “Flashco had a legitimate non-discriminatory and non-retaliatory reason for the alleged adverse employment action as Plaintiff had demonstrated poor job performance for over a year leading up to his voluntary resignation” and because “Plaintiff was granted all three days off he requested.” (Flashco Motion, p. i:4-21.)

In the alternative, Flashco seeks summary adjudication of the following issues:

· The first cause of action for Disability Discrimination fails because Plaintiff voluntarily resigned, and FlashCo had no knowledge of any disability and issued the PIP for legitimate reasons;

· The second cause of action for Failure to Accommodate fails as Plaintiff did not need or request an accommodation;

· The third cause of action for Failure to Engage in an Interactive Process fails as Plaintiff did not need or request an accommodation;

· The fourth cause of action for Retaliation fails because Plaintiff voluntarily resigned and FlashCo issued the PIP for legitimate reasons;

· The fifth cause of action for Failure to Prevent Harassment and Discrimination fails as Plaintiff was not harassed or discriminated against;

· The sixth cause of action for Interference fails because CFRA was inapplicable to FlashCo at all relevant times;

· The seventh cause of action for Retaliation fails because CFRA was inapplicable to FlashCo at all relevant times;

· The eighth cause of action for Hostile Work Environment fails as Plaintiff was never unlawfully harassed; and

· The ninth cause of action for Wrongful Termination fails because Plaintiff voluntarily resigned and FlashCo issued the PIP for legitimate reasons.” (Id. at pp. i:22-ii:14.)

1. Plaintiff’s Claims: Adverse Employment Action due to Disability

The FAC alleges that “Plaintiff was subjected to discrimination and adverse employment action when, on April 24, 2018, his employment was terminated for needing medical leave of absence and suffering from a disability.” (FAC, ¶ 39.) Each of the causes of action in the FAC are also based on Plaintiff’s employment termination for suffering from a disability. (See FAC, ¶¶ 49, 58, 68, 79-82, 93, 104, 109, 125, 133.)

a. Disability under the FEHA

To qualify for certain protections under the Fair Employment and Housing Act (“FEHA”), an employee must have a “disability” or “medical condition.” Under FEHA, “ ‘physical disability’ includes having a physiological disease, disorder, or condition that, by affecting the neurological or musculoskeletal body systems, special sense organs or skin, ‘limits' a ‘major life activity.’ (; 12926, subd. (m)(1)(A), (B).) ‘Limits' is synonymous with making the achievement of a major life activity ‘difficult.’ (Id., subd. (m)(1)(B)(ii).) ‘Major life activity’ is construed broadly and includes physical, mental, and social activities, and working”. (Id., subd. (m)(1)(B)(iii).) “ ‘ “[W]orking” is a major life activity, regardless of whether the actual or perceived working limitation implicates a particular employment or a class or broad range of employments.’ (; 12926.1, subd. (c).)” (Arteaga v. Brink's, Inc. (2008) 163 Cal.App.4th 327, 345.)

“An adverse employment decision cannot be made ‘because of’ a disability, when the disability is not known to the employer.” (Brundage v. Hahn (1997) 57 Cal.App.4th 228, 236.) In Avila v. Continental Airlines, Inc. (2008) 165 Cal.App.4th 1237, 1248, as modified on denial of reh’g (Aug. 28, 2008), the plaintiff submitted two forms from Kaiser Permanente to his supervisors, one of which included doctor's instructions instructing him not to work for one day, and another which included doctor's instructions instructing him not to work for five days. The defendant was also informed that plaintiff was hospitalized for three days. The Court of Appeal affirmed the trial court's grant of summary judgment on the ground that these forms, together with knowledge of the hospitalization, were insufficient to prove that the defendant was on notice that the plaintiff was suffering from a disability that would require accommodation beyond the five days specified. (Id. at p. 1249.)

The court in Avila held:

“While knowledge of the disability can be inferred from the circumstances, knowledge will only be imputed to the employer when the fact of disability is the only reasonable interpretation of the known facts. ‘Vague or conclusory statements revealing an unspecified incapacity are not sufficient to put an employer on notice of its obligations under the [FEHA].’” (Id. at p. 1248, quoting Brundage, supra, 57 Cal.App.4th at p. 237.)

Defendant Flashco argues that “Plaintiff cannot demonstrate that he was, in fact, disabled such that he is entitled to any protection under California Government Code [section] 12940.” (Motion, p. 9:26-27.) Defendant Flashco also argues that “even if he was disabled, there is no evidence that Flashco knew of the disability such that any adverse employment actions could have been based on a disability.” (Id. at pp. 9:28-10:1.) Defendant Flashco presents evidence that Plaintiff took three days off from work for back or neck issues, on February 23, 2018, March 23, 2018, and March 28, 2018. (SSUF ¶¶ 18, 21, 23, 29.) Defendant Flashco presents evidence that Plaintiff provided a single chiropractor’s note that stated Plaintiff was being treated for low back pain and explain Plaintiff’s absence on March 23, 2018. (SSUF ¶ 22.) Defendant Flashco also demonstrates that neither the chiropractor’s note provided by Plaintiff nor any of Plaintiff’s statements to FlashCo revealed that he suffered from a disability, that he needed any accommodation whatsoever, or that he needed any work restrictions to be able to perform the essential functions of his job. (SSUF, ¶¶ 22, 24-26.)

In opposition, Plaintiff argues that “there is ample evidence here that not only Mr. Compton, but also Flashco’s controller Laura Molinari, Flashco’s HR Assistant, Brianna Beck, Flashco’s owner’s brother, Rick Morrow, and many other colleagues where are aware that Mr. McDaniel had been any [sic] significant vehicle accident, was suffering injuries and was undergoing medical treatment therefor.” (Opp., p. 8:22-25, citing PSS #19.) Plaintiff asserts that Defendant “Flashco cannot show that no reasonable person could have inferred that Mr. McDaniel was disabled based on his communications to various co-workers, human resources and management, regarding his accident and injuries, was suffering from a disability.” (Id. at p. 9:3-6.)

In reply, Defendant Flashco argues that “the issue here is not whether FlashCo knew Plaintiff was in a car accident and suffered neck and back spasms a day after, but whether (1) FlashCo knew Plaintiff had a disability or perceived to him to be disabled because of the car accident and (2) FlashCo knew he needed an accommodation to deal with that disability and refused to give him one.” (Flashco Reply, p. 2:13-16.)

The Court finds that Plaintiff has failed to carry his burden establishing that there is a triable issue of material fact and that Defendant is not entitled to judgment as a matter of law. As correctly pointed out by Defendant Flashco, it appears Plaintiff has misconstrued Defendant’s argument. (See Reply, p. 2:13-16.) As noted in its moving papers, Defendant Flashco does not dispute that Plaintiff was in a car accident and that he suffered injuries from this accident. (See Motion, p. 13:5-8, citing SSUF ¶¶ 18, 21, 23, 29.) What Defendant Flashco instead argues is that it was not aware that Plaintiff was suffering from a disability and that there is no evidence demonstrating that Plaintiff was suffering from a disability.

Here, Defendant presents undisputed evidence that Plaintiff informed Defendant Flashco that he was taking February 22, 2018 off from his work at FlashCo because of the car accident. (SSUF ¶ 17.) It is undisputed that Plaintiff also informed Defendant Flashco he was taking February 23, 2018 off from his work at FlashCo due to spasms from his neck down to his hip. (Id. at ¶ 18.) It is also undisputed that Plaintiff told Flashco that he needed to take March 23, 2018 off from work at FlashCo due to issues with his back. (Id. at ¶¶ 21, 23.) It is also undisputed that on March 26, 2018, Plaintiff provided a note from his chiropractor stating that he had been under professional care of Downey Chiropractic Group and was “totally incapacitated” on March 23, 2018 due to lumbar myalgia. (Id. at ¶ 22.) But Plaintiff does not provide sufficient evidence to dispute Defendants’ contention that he failed to provide medical documentation stating that he needed to take any additional time off of work. Although Plaintiff provided information that he needed to take time off of work on February 23, 2018 and that he took time off on March 28, 2018 due to lumbar myalgia, Plaintiff never told his employer that he needed to take specific days off in the future, that he had any work-related limitations or restrictions, or that he needed any accommodation or restriction to perform his job. (Id. at ¶ 24.)

Defendant may well have known that Plaintiff was in a car accident and suffered pain from his injuries. But this is not sufficient. (See, e.g., Arteaga v. Brink's, Inc. (2008) 163 Cal.App.4th 327, 348 [“pain alone without some corresponding limitation on activity is insufficient to establish a disabling impairment.”]) Plaintiff admits that the pain only “limited my ability to work on a few occasions.” (McDaniel Declaration, ¶ 20.) And while Plaintiff had “to periodically take time off work to make doctor appointments” (Id.), Plaintiff does not dispute that Defendant accommodated Plaintiff and allowed him time off to make these appointments.

Similar to the facts of Avila, these communications and the medical form are insufficient to put on notice that Plaintiff suffered from a disability and that such he was entitled to a disability accommodation. While knowledge of the disability can be inferred from the circumstances, knowledge will only be imputed to the employer when the fact of disability is the only reasonable interpretation of the known facts. (See Avila, supra, 165 Cal.App.4th at p. 1249.) Plaintiff does not provide evidence that the only reasonable interpretation of the facts that he suffered injuries from the car accident, indicates that he has a disability. Overall, Plaintiff fails to present sufficient evidence to demonstrate that a triable issue of material fact exists as to whether Defendant had knowledge that Plaintiff suffered from a disability.

Each of Plaintiff’s causes of action are based adverse employment decisions that were made because of a disability. However, “[a]n adverse employment decision cannot be made ‘because of’ a disability, when the disability is not known to the employer.” (Brundage, supra, 57 Cal.App.4th at p. 236.)

The Court GRANTS Defendant Flashco’s motion for summary judgment.

2. Defendant Insperity Peo Services, L.P.’s Motion

Defendant Insperity Peo Services, L.P. (“Insperity”) moves for summary judgment, or in the alternative for summary adjudication, as to each cause of action in the FAC on the grounds that “Insperity was not Plaintiff’s ‘employer’ under the California Fair Employment and Housing Act or California Family Rights Act, but even if Insperity was Plaintiff’s employer, Insperity is not jointly liable for the conduct alleged in Plaintiff’s [FAC].” (Insperity Motion, p. i:4-21.)

In the alternative, Defendant Insperity moves for summary adjudication of the following issues:

· The First cause of Action for Disability Discrimination fails because Insperity was not Plaintiff’s “employer”, did not know Plaintiff was disabled or needed an accommodation, was not involved in the PIP or Plaintiff's resignation, and was contractually obligated to terminate its “employment” with Plaintiff once he resigned from Defendant FlashCo Manufacturing, Inc. (“FlashCo”);

· The Second Cause of Action for Failure to Accommodate fails as Insperity was not Plaintiff’s “employer” and did not know Plaintiff was disabled or needed an accommodation;

· The third Cause of Action for Failure to Engage in an Interactive Process fails as Insperity was not Plaintiff’s “employer” and did not know Plaintiff was disabled or needed an accommodation;

· The fourth cause of action for Retaliation fails Insperity was not Plaintiff’s “employer” and was not involved in the PIP or Plaintiff's resignation;

· The fifth cause of action for Failure to Prevent Harassment and Discrimination fails as Insperity was not Plaintiff’s “employer”, did not know Plaintiff was disabled or needed an accommodation, was not involved in the PIP or Plaintiff's resignation, and was contractually obligated to terminate its “employment” with Plaintiff once he resigned from FlashCo;

· The sixth cause of action for Interference fails because Insperity was not Plaintiff’s “employer”, did not know Plaintiff was disabled or needed an accommodation, was not involved in the PIP or Plaintiff's resignation, and was contractually obligated to terminate its “employment” with Plaintiff once he resigned from FlashCo;

· The seventh cause of action for Retaliation fails because Insperity was not Plaintiff’s “employer”, did not know Plaintiff was disabled or needed an accommodation, was not involved in the PIP or Plaintiff's resignation, and was contractually obligated to terminate its “employment” with Plaintiff once he resigned from FlashCo;

· The eighth cause of action for Hostile Work Environment fails as Insperity was not Plaintiff’s “employer”, did not know Plaintiff was disabled or needed an accommodation, was not involved in the PIP or Plaintiff's resignation, and was contractually obligated to terminate its “employment” with Plaintiff once he resigned from FlashCo; and

· The Ninth Cause of Action for Wrongful Termination fails because Insperity was not Plaintiff’s “employer”, did not know Plaintiff was disabled or needed an accommodation, was not involved in the PIP or Plaintiff's resignation, and was contractually obligated to terminate its “employment” with Plaintiff once he resigned from FlashCo. (Id. at pp. i:22-ii:3.)

Defendant Insperity also “joins in, adopts, and incorporates by reference the arguments contained in FlashCo’s Motion for Summary Judgment or, in the alternative, Summary Adjudication.” (Id. at p. 12:2-4.) Similar to Defendant Flashco, Insperity argues that it cannot be held liable for Plaintiff’s claims because it did not know Plaintiff was disabled or needed an accommodation. (Id. at p. 9:10-11.) Defendant Insperity provides evidence that Plaintiff admits that he did not notify anyone at Insperity that he was suffering from a back and neck injury. (SSUF, ¶25-26, 28.) Additionally, Defendant Insperity presents evidence that no one at Flashco ever informed Insperity of any known or believed injury or disability regarding Plaintiff. (SSUF, ¶ 27.) Further, Defendant Insperity shows that Plaintiff admits that he did not contact Insperity to request an accommodation for his back and neck injury. (SSUF, ¶27.)

Defendant Insperity also provides the same evidence that Defendant Flashco provides to demonstrate that the communications Plaintiff made to Flashco and the doctor’s note Plaintiff provided to Flascho did not place Defendant Insperity on notice that Plaintiff suffered from a disability. (SSUF ¶¶ 28-30.)

As explained supra in Defendant Flasco’s motion for summary judgment, the communications and the doctor’s note Plaintiff provided to Flashco are insufficient to put Defendants on notice that Plaintiff suffered from a disability and that such he was entitled to a disability accommodation. Further, Plaintiff fails to provide any evidence demonstrating that Defendant Insperity, in particular, was aware that Plaintiff suffered from a disability. While knowledge of the disability can be inferred from the circumstances, knowledge will only be imputed to the employer when the fact of disability is the only reasonable interpretation of the known facts. (See Avila, supra, 165 Cal.App.4th at p. 1249.) Plaintiff does not provide evidence that the only reasonable interpretation of the facts that he suffered injuries from the car accident, indicates that he has a disability. Overall, Plaintiff fails to raise a triable issue of material fact as to whether Defendant Insperity had knowledge that Plaintiff suffered from a disability.

Each of Plaintiff’s causes of action are based adverse employment decisions that were made because of a disability. However, “[a]n adverse employment decision cannot be made ‘because of’ a disability, when the disability is not known to the employer.” (Brundage, supra, 57 Cal.App.4th at p. 236.)

The Court GRANTS Defendant Insperity motion for summary judgment.

Case Number: *******9497    Hearing Date: September 08, 2020    Dept: 34

SUBJECT: Demurrer and Motion to Strike

Moving Party: Defendant Insperity Peo Services, L.P.

Resp. Party: Plaintiff Jeremy McDaniel

Defendant Insperity Peo Services, L.P.’s demurrer is OVERRULED.

Defendant Insperity Peo Services, L.P.’s motion to strike the punitive damages is DENIED.

BACKGROUND:

Plaintiff Jeremy McDaniel commenced this action on March 9, 2020 and on July 24, 2020, Plaintiff filed a first amended complaint (“FAC”) against Defendants Flashco Manufacturing, Inc. and Insperity Peo Services, L.P. for (1) disability discrimination; (2) failure to accommodate; (3) failure to engage in an interactive process; (4) retaliation under FEHA; (5) failure to prevent harassment and discrimination; (6) interference under CFRA; (7) retaliation under CFRA; (8) hostile work environment; and (9) wrongful termination in violation of public policy.

On August 13, 2020, Defendant Insperity Peo Services, L.P. filed the instant demurrer and motion to strike as to the FAC.

ANALYSIS:

I. Demurrer

A. Legal Standard

A demurrer is a pleading used to test the legal sufficiency of other pleadings. It raises issues of law, not fact, regarding the form or content of the opposing party’s pleading. It is not the function of the demurrer to challenge the truthfulness of the complaint; and for purpose of the ruling on the demurrer, all facts pleaded in the complaint are assumed to be true, however improbable they may be. (Code Civ. Proc., ;;422.10, 589.)

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311.) No other extrinsic evidence can be considered (i.e., no “speaking demurrers”). A demurrer is brought under Code of Civil Procedure section 430.10 (grounds), section 430.30 (as to any matter on its face or from which judicial notice may be taken), and section 430.50(a) (can be taken to the entire complaint or any cause of action within).

A demurrer may be brought under Code of Civil Procedure section 430.10, subdivision (e) if insufficient facts are stated to support the cause of action asserted.

Leave to amend should not be granted unless plaintiff can establish that facts exist sufficient to state a cause of action. (Community Assisting Recovery, Inc. v. Aegis Security Ins. Co. (2001) 92 Cal. App. 4th 886, 895.) 

B. Evidentiary Objections

Defendant submits nine evidentiary objections to the declaration of Maria Garcia. The Court SUSTAINS these objections.

C. Discussion

Plaintiff’s claims are based on violations of FEHA, CFRA, and public policy for wrongful determination and the essential element of these causes of action is the existence of an employment relationship between plaintiff and defendant at the time of the allegedly wrongful conduct.

The FEHA predicates potential liability on the status of the defendant as an “employer.” (Vernon v. State (2004) 116 Cal.App.4th 114, 123.) In Vernon, a firefighter for the City of Berkeley filed suit for employment discrimination under FEHA and alleged that the State of California was his indirect or joint employer. (Id. at pp. 117-118). The Vernon court explained that one must consider the totality of circumstances surrounding the employment relationship between the parties, and laid out several factors to be considered in the analysis:

“…payment of salary or other employment benefits…the ownership of the equipment…the location where the work is performed, the obligation…to train…, the authority…to hire, …discipline or discharge…, the authority to establish work schedules…, [the] discretion to determine the amount of compensation…, the skill required…, the extent to which [work] is done under the work of a supervisor, whether the work is part of the defendant's regular business operations,…the duration of the relationship of the parties, and the duration of the plaintiff's employment.” (Id. at p. 125.)

The Vernon court also indicated that “‘of the[] factors, the extent of the defendant’s right to control the means and manner of the workers’ performance is the most important.’” (Id. at p. 126, citations omitted.)

However, the Vernon court explained that “ ‘[t]here is no magic formula for determining whether an organization is a joint employer. Rather, the court must analyze “myriad facts surrounding the employment relationship in question.” [Citation.] No one factor is decisive. [Citation.]’ [Citations.] ‘[T]he precise contours of an employment relationship can only be established by a careful factual inquiry.’ [Citation.]” (Id. at p. 125.)

Similarly, “the duty on which the tort [of wrongful discharge] is based is a creature of the employer-employee relationship, and the breach of that duty is the employer’s improper discharge of an employee otherwise terminable at the will or whim of the employer. [Citation.]” (Weinbaum v. Goldfarb, Whitman & Cohen (1996) 46 Cal.App.4th 1310, 1315.)

Defendant brings this demurrer “on the grounds that none of the nine causes of action asserted against Insperity in the First Amended Complaint state facts sufficient to constitute a cause of action against Insperity pursuant to California Code of Civil Procedure ; 430.10(e).” (Demurrer, p. i:7-9.) In particular, Defendant argues that all of Plaintiff’s claims fail because Plaintiff has not properly alleged that Insperity was his employer at the time he claims Defendant Flashco Manufacturing, Inc. violated the FEHA, the CRRA, or any other doctrine. (Demurrer MPA, p. 2:17-19.)

In the FAC, Plaintiff alleges that he “worked for Defendant Flashco for approximately 8.5 years, working his way up from production worker to Plant Manager earning around $90,000.00.” (FAC, ¶ 11.) Further, Plaintiff alleges that Defendants Flashco Manufacturing, Inc. and Insperity Pro Services, L.P. were Plaintiff’s co-employers per the Employment Agreement entered between Flashco and Insperity, and Plaintiff on October 11, 2013. (FAC, ¶ 6.)

Plaintiff specifically alleges that “On October 11, 2013, Plaintiff executed an Employment Agreement wherein he agreed to his terms of employment, pursuant to a ‘Client Service Agreement’ between Defendants FLASHCO MANUFACTURING, INC. and INSPERITY PEO SERVICES, L.P. in which Defendants expressly agreed to a co-employment relationship. In the Employment Agreement, INSPERITY reserves the following rights: to direct and control Plaintiff, to hire and terminate, and to resolve workplace disputes. Per the Employment Agreement, INSPERITY maintained workers’ compensation insurance coverage for Plaintiff.” (Id. at ¶ 12.) Plaintiff further alleges the following employment actions Insperity took:

· “INSPERITY handled Plaintiff’s payroll. INSPERITY issued Plaintiff’s paychecks and W-2 forms.” (Id. at ¶ 13.)

· “INSPERITY provided Plaintiff’s benefits. On November 2, 2103, INSPERITY confirmed Plaintiff’s enrollment in the ‘Insperity Group Health Plan’. Under this plan, Plaintiff received from INSPERITTY, medical, dental, and vision insurance. All of Plaintiff’s changes to his healthcare coverage were administered by INSPERITY.” (Id. at ¶ 14.)

· “INSPERITY required Plaintiff to undergo periodic training for management, preventing violence in the workplace and workplace harassment prevention for managers.” (Id. at ¶ 15.)

· “INSPERITY was responsible for verifying Plaintiff’s employment. On March 25, 2015 and August 15, 2016, Insperity confirmed Plaintiff’s employment and represented him as a ‘worksite employee of Insperity a Professional Employer Organization, as well as FLASHCO MANUFACTURING, INC.’ INSPERITY was also the issuing entity for W2s and other employment records for Plaintiff.” (Id. at ¶ 16.)

· “On April 24, 2018, INSPERITY terminated Plaintiff’s employment.” (Id. at ¶ 32.)

· “On April 25, 2018, INSPERITY sent a letter to Plaintiff informing him that his ‘employment with FLASCO MANUFACTURING, INC. and Insperity [was] terminated on 4/24/2018.’” (Id. at ¶ 33.)

· “On April 25, 2018, INSPERITY advised Plaintiff of his rights to COBRA coverage and offered him coverage under its plan.” (Id. at ¶ 34.)

Based on these allegations, the Court finds that Plaintiff sufficiently alleges that that an employment relationship existed between Plaintiff and Defendant Insperity that would establish liability against Defendant Insperity for the claims alleged in the FAC.

The Court also reminds the parties that at this demurrer stage, all facts pleaded in the FAC are assumed to be true and it is not the function of the demurrer to challenge the truthfulness of the facts alleged. Further, the “precise contours of an employment relationship can only be established by a careful factual inquiry” (Vernon, supra, 116 Cal.App.4th at p. 125), which is not appropriate at this demurrer stage.

The Court OVERRULES the demurrer to the FAC.

II. Motion to Strike

A. Legal Standard

Any party may file a timely notice of a motion to strike the whole or any part of a pleading. (Code Civ. Proc., ; 435, subd. (b).) For the purpose of a motion to strike, the Code of Civil Procedure defines a "pleading" as a demurrer, answer, complaint, or cross-complaint. (Code Civ. Proc., ; 435, subd. (a)(2).) Irrelevant allegations include: allegations that are not essential to the statement of a claim, allegations that are not pertinent to or supported by the claim, and demands for judgment requesting relief not supported by the allegations. (Code Civ. Proc., ; 431.10, subd. (b), (c).)

Punitive damages may be imposed where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice. (Civ. Code, ; 3294, subd. (a).) “Malice” is conduct intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on with a willful and conscious disregard of the rights or safety of others. (Civ. Code, ; 3294, subd. (c)(1).) Despicable conduct is “conduct which is so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people. Such conduct has been described as ‘having the character of outrage frequently associated with crime.’” (Tomaselli v. Transamerica Ins. Co. (1994) 25 Cal.App.4th 1269, 1287.) “Fraud” means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury. (Civ. Code, ; 3294, subd. (c).) “‘Punitive damages are proper only when the tortious conduct rises to levels of extreme indifference to the plaintiff’s rights, a level which decent citizens should not have to tolerate.’ [Citation.]” (Lackner v. North (2006) 135 Cal.App.4th 1188, 1210.)

In general, a court should not to strike a prayer for relief until the plaintiff “has had a full opportunity to determine, through discovery, whether a basis for recovery exists.” (Camenisch v. Superior Court (Burns) (1996) 44 Cal.App.4th 1689, 1699.)

A motion to strike punitive damages is properly granted where a plaintiff does not state a prima facie claim for punitive damages, including allegations that defendant is guilty of oppression, fraud or malice. (Turman v. Turning Point of Cent. California, Inc. (2010) 191 Cal.App.4th 53, 63.) “Mere negligence, even gross negligence, is not sufficient to justify such an award” for punitive damages. (Kendall Yacht Corp. v. United California Bank (1975) 50 Cal.App.3d 949, 958.)

B. Discussion

Defendant moves to strike the following allegations of punitive damages from Plaintiff’s FAC:

· Page 7, the entirety of paragraph 46.

· Page 8, the entirety of paragraph 54.

· Page 10, the entirety of paragraph 64.

· Page 11, the entirety of paragraph 76.

· Pages 12-13, the entirety of paragraph 84.

· Page 14, the entirety of paragraph 99.

· Page 16, the entirety of paragraph 117.

· Page 18, the entirety of paragraph 128.

· Page 19, the entirety of paragraph 136.

· Prayer for Relief, page 19, line 4 “For Punitive Damages.” (Motion to Strike, p. i:8-19.)

Defendant argues that “to support his claims for punitive damages, Plaintiff relies solely on conclusory allegations, rather than pleading the required allegations of ultimate facts.” (Id. at p. 1:9-7.) Defendants maintain that “as described in more detail in the concurrently filed Demurrer, Plaintiff fails to state any facts against Insperity, let alone any fact that could be construed to be malicious, fraudulent or oppressive.” (Id. at p. 3:1-3.)

The Court overruled Defendant’s demurrer to the FAC, finding that Plaintiff alleges sufficient facts against Defendant Insperity as an employer of Plaintiff. Further, the FAC also includes sufficient facts that Defendant Insperity, through the actions of managing agents, acted with “oppression, fraud, or malice. For example, Plaintiff alleges:

· “On February 22, 2018, Plaintiff was in a serious car accident, which resulted in disabilities that forced him to miss work as a result of being totally incapacitated. Plaintiff notified his superiors and colleagues about his medical status verbally and via numerous text messages and emails, including texting photos of the accident to his supervisor and other colleagues and superiors.” (FAC, ¶ 24.)

· “Defendants did not engage in the interactive process or offer reasonable accommodations to Plaintiff. It failed to present any FMLA or CFRA paperwork to Plaintiff.” (Id. at ¶ 25.)

· “On March 7, 2018, Plaintiff attempted to discuss his back injury with his supervisor. Mr. Compton immediately changed subjects.” (Id. at ¶ 26.)

· “On March 26, 2018, Plaintiff presented a doctor’s note to his supervisor via email explaining that he had been totally incapacitated. On a phone call later that day, Mr. Compton asked Plaintiff why he had emailed the doctor’s note. Mr. Compton made it clear that a disability should not be used as an excuse.” (Id. at ¶ 27.)

· “On Friday, April 20, 2018, FLASHCO presented Plaintiff with a 30-day performance improvement plan that contained totally unrealistic goals given staffing and other challenges at Plaintiff’s location. FLASHCO told Plaintiff that he could either accept the plan, receive a severance, or accept a demotion into a shop foreman position in South Carolina.” (Id. at ¶ 28.)

· “Throughout that weekend, Plaintiff and his family dealt with his son’s serious health issue, which FLASHCO acknowledged having knowledge of in an email to Plaintiff the following week.” (Id. at ¶ 29.)

· “On Monday, April 23, 2018, Plaintiff notified his supervisor via email that he would not be at work. Later that day, Plaintiff’s supervisor emailed him, ‘I made it clear Friday that you needed to elect one of the paths I laid out first thing Monday morning. I was really disappointed when you didn’t report to work this morning. Not calling even by the end of the day is hard for me to reconcile. Do not report to work without speaking with me.’ Shortly thereafter, on April 23, 2018, Plaintiff noticed that FLASHCO posted his position online and that he was locked out of his company email.” (Id. at ¶ 30.)

· “On Tuesday, April 24, 2018, realizing that a decision had already been made with respect to his employment, Plaintiff asked FLASHCO if he could still receive the severance. He also mentioned that he called the company, could not log into emails, and that he saw the job posting.” (Id. at ¶ 31.)

The Court finds that Plaintiff has stated prima facie claims for punitive damages against Defendant Insperity.

The Court DENIES Defendant’s motion to strike.