This case was last updated from Los Angeles County Superior Courts on 09/29/2021 at 06:41:56 (UTC).

TIMOTHY TWYMAN VS NHBB INC., ET AL.

Case Summary

On 06/15/2020 TIMOTHY TWYMAN filed a Labor - Wrongful Termination lawsuit against NHBB INC . This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are MAUREEN DUFFY-LEWIS and DENNIS J. LANDIN. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******2588

  • Filing Date:

    06/15/2020

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Labor - Wrongful Termination

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

MAUREEN DUFFY-LEWIS

DENNIS J. LANDIN

 

Party Details

Plaintiff

TWYMAN TIMOTHY

Defendants

SERVERSON HOWARD

NMB USA INC.

MINEBEAMITSUMI GROUP

MINEBEA INTEC USA INC.

ESCOBAR RUEBEN

NMB TECHNOLOGIES CORPORATION

MINEBEA CO. LTD.

NHBB INC.

NEW HAMPSHIRE BALL BEARING INC.

MINEBEA MITSUMI INC.

Attorney/Law Firm Details

Plaintiff Attorney

EBRAHIMIAN N. NICK

Defendant Attorney

GOODWIN KEITH

 

Court Documents

Reply - REPLY SUR- REPLY IN SUPPORT OF PLAINTIFF TIMOTHY TWYMAN'S OPPOSITION TO DEFENDANT'S MOTION FOR ATTORNEY'S FEES

4/22/2021: Reply - REPLY SUR- REPLY IN SUPPORT OF PLAINTIFF TIMOTHY TWYMAN'S OPPOSITION TO DEFENDANT'S MOTION FOR ATTORNEY'S FEES

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (RULING ON SUBMITTED MATTER) OF 05/12/2021

5/12/2021: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (RULING ON SUBMITTED MATTER) OF 05/12/2021

Proof of Service (not Summons and Complaint)

6/10/2021: Proof of Service (not Summons and Complaint)

Notice of Removal to Federal Court - NOTICE OF REMOVAL TO FEDERAL COURT DEFENDANTS NOTICE TO ADVERSE PARTY AND TO THE CLERK OF SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES

6/14/2021: Notice of Removal to Federal Court - NOTICE OF REMOVAL TO FEDERAL COURT DEFENDANTS NOTICE TO ADVERSE PARTY AND TO THE CLERK OF SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES

Objection - OBJECTION DEFENDANTS MINEBEAMITSUMI INC., MINEBEA CO. LTD., MINEBEA INTEC USA INC., MINEBEAMITSUMI GROUP, AND NHBB INC.S OBJECTIONS TO PLAINTIFFS EVIDENCE IN OPPOSITION TO MOTION FOR AN

3/11/2021: Objection - OBJECTION DEFENDANTS MINEBEAMITSUMI INC., MINEBEA CO. LTD., MINEBEA INTEC USA INC., MINEBEAMITSUMI GROUP, AND NHBB INC.S OBJECTIONS TO PLAINTIFFS EVIDENCE IN OPPOSITION TO MOTION FOR AN

Reply - REPLY DEFENDANTS MINEBEAMITSUMI INC., MINEBEA CO. LTD., MINEBEA INTEC USA INC., MINEBEAMITSUMI GROUP, AND NHBB INC.S REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR AN AWA

3/11/2021: Reply - REPLY DEFENDANTS MINEBEAMITSUMI INC., MINEBEA CO. LTD., MINEBEA INTEC USA INC., MINEBEAMITSUMI GROUP, AND NHBB INC.S REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR AN AWA

Stipulation and Order - STIPULATION AND ORDER STIPULATION AND [PROPOSED] ORDER FOR LEAVE TO FILE SECOND AMENDED COMPLAINT

1/29/2021: Stipulation and Order - STIPULATION AND ORDER STIPULATION AND [PROPOSED] ORDER FOR LEAVE TO FILE SECOND AMENDED COMPLAINT

Objection - OBJECTION AND MOTION TO STRIKE PLAINTIFFS OPPOSITION TO DEMURRER TO PLAINTIFFS COMPLAINT

11/25/2020: Objection - OBJECTION AND MOTION TO STRIKE PLAINTIFFS OPPOSITION TO DEMURRER TO PLAINTIFFS COMPLAINT

Opposition - OPPOSITION TO DEFENDANTS' DEMURRER TO PLAINTIFF'S COMPLAINT

11/19/2020: Opposition - OPPOSITION TO DEFENDANTS' DEMURRER TO PLAINTIFF'S COMPLAINT

Proof of Service (not Summons and Complaint)

11/5/2020: Proof of Service (not Summons and Complaint)

Declaration - DECLARATION OF KEITH A. GOODWIN IN SUPPORT OF DEFENDANTS MINEBEAMITSUMI INC., MINEBEA CO. LTD., MINEBEA INTEC USA INC., MINEBEAMITSUMI GROUP, AND NHBB INC.S RESPONSE TO PLAINTIFFS REQU

11/12/2020: Declaration - DECLARATION OF KEITH A. GOODWIN IN SUPPORT OF DEFENDANTS MINEBEAMITSUMI INC., MINEBEA CO. LTD., MINEBEA INTEC USA INC., MINEBEAMITSUMI GROUP, AND NHBB INC.S RESPONSE TO PLAINTIFFS REQU

Minute Order - MINUTE ORDER (HEARING ON MOTION TO QUASH SERVICE OF SUMMONS)

11/13/2020: Minute Order - MINUTE ORDER (HEARING ON MOTION TO QUASH SERVICE OF SUMMONS)

Order - ORDER PROPOSED ORDER RE MOTION TO QUASH

11/13/2020: Order - ORDER PROPOSED ORDER RE MOTION TO QUASH

Proof of Service (not Summons and Complaint)

10/15/2020: Proof of Service (not Summons and Complaint)

Motion to Quash Service of Summons

10/15/2020: Motion to Quash Service of Summons

Notice - NOTICE OF NEW HEARING DATE RE DEFENDANTS DEMURRER TO PLAINTIFFS COMPLAINT AND MOTION TO STRIKE PORTIONS OF PLAINTIFFS COMPLAINT

10/16/2020: Notice - NOTICE OF NEW HEARING DATE RE DEFENDANTS DEMURRER TO PLAINTIFFS COMPLAINT AND MOTION TO STRIKE PORTIONS OF PLAINTIFFS COMPLAINT

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER RE: PEREMPTORY CHALLENGE;) OF 10/05/2020

10/5/2020: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER RE: PEREMPTORY CHALLENGE;) OF 10/05/2020

Challenge To Judicial Officer - Peremptory (170.6)

10/5/2020: Challenge To Judicial Officer - Peremptory (170.6)

102 More Documents Available

 

Docket Entries

  • 04/19/2022
  • Hearing04/19/2022 at 09:30 AM in Department 51 at 111 North Hill Street, Los Angeles, CA 90012; Jury Trial

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  • 04/08/2022
  • Hearing04/08/2022 at 08:30 AM in Department 51 at 111 North Hill Street, Los Angeles, CA 90012; Final Status Conference

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  • 02/23/2022
  • Hearing02/23/2022 at 08:30 AM in Department 51 at 111 North Hill Street, Los Angeles, CA 90012; Post-Mediation Status Conference

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  • 06/14/2021
  • DocketNotice of Removal to Federal Court (DEFENDANT?S NOTICE TO ADVERSE PARTY AND TO THE CLERK OF SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES OF REMOVAL OF THIS CIVIL ACTION TO THE UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA); Filed by NEW HAMPSHIRE BALL BEARING, INC. (Defendant)

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  • 06/11/2021
  • DocketOrder (Re Joint Stipulation to Dismiss Defendants NMB (USA) Inc. and NMB Technologies Corporation from the Action with Prejudice); Filed by NHBB INC. (Defendant); NEW HAMPSHIRE BALL BEARING, INC. (Defendant); MINEBEA INTEC USA, INC. (Defendant) et al.

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  • 06/10/2021
  • DocketStipulation and Order ([Joint] to Dismiss Defendants NMB (USA) Inc. and NMB Technologies Corporation from the Action with Prejudice); Filed by NHBB INC. (Defendant); NEW HAMPSHIRE BALL BEARING, INC. (Defendant); MINEBEA INTEC USA, INC. (Defendant) et al.

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  • 06/10/2021
  • DocketProof of Service (not Summons and Complaint); Filed by NHBB INC. (Defendant); NEW HAMPSHIRE BALL BEARING, INC. (Defendant); MINEBEA INTEC USA, INC. (Defendant) et al.

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  • 05/12/2021
  • Docketat 08:30 AM in Department 51, Dennis J. Landin, Presiding; Ruling on Submitted Matter

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  • 05/12/2021
  • DocketMinute Order ( (Ruling on Submitted Matter)); Filed by Clerk

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  • 05/12/2021
  • DocketRuling Re: Motion for Attorney Fees; Filed by Clerk

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113 More Docket Entries
  • 09/01/2020
  • DocketProof of Service by Substituted Service; Filed by TIMOTHY TWYMAN (Plaintiff)

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  • 09/01/2020
  • DocketProof of Service by Substituted Service; Filed by TIMOTHY TWYMAN (Plaintiff)

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  • 09/01/2020
  • DocketProof of Service by Substituted Service; Filed by TIMOTHY TWYMAN (Plaintiff)

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  • 09/01/2020
  • DocketProof of Service by Substituted Service; Filed by TIMOTHY TWYMAN (Plaintiff)

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  • 09/01/2020
  • DocketProof of Service by Substituted Service; Filed by TIMOTHY TWYMAN (Plaintiff)

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  • 06/22/2020
  • DocketNotice of Case Management Conference; Filed by Clerk

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  • 06/15/2020
  • DocketSummons (on Complaint); Filed by TIMOTHY TWYMAN (Plaintiff)

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  • 06/15/2020
  • DocketCivil Case Cover Sheet; Filed by TIMOTHY TWYMAN (Plaintiff)

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  • 06/15/2020
  • DocketComplaint; Filed by TIMOTHY TWYMAN (Plaintiff)

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  • 06/15/2020
  • DocketNotice of Case Assignment - Unlimited Civil Case; Filed by Clerk

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Tentative Rulings

Case Number: 20STCV22588    Hearing Date: December 04, 2020    Dept: 51

Background

Plaintiff Timothy Twyman (“Plaintiff”) sues Defendants New Hampshire Ball Bearing, Inc. ; NHBB, Inc.; Minebea Intec USA, Inc.; Minebea Mitsumi, Inc.; Minebea Mitsumi Group; Minebea Co., Ltd.; NMB Technologies Corporation; NMB (USA) Inc. (collectively “Company Defendants”); Rueben Escobar (“Escobar”); Howard Severson (“Severson”); and Does (all collectively, “Defendants”) alleging that Defendants subjected Plaintiff to discrimination, harassment, and retaliation based on Plaintiff’s age and disability during his employment.

On June 15, 2020, Plaintiff filed a Complaint against Defendants for the following causes of action:

(1) age discrimination;

(2) harassment based on age;

(3) disability discrimination;

(4) failure to provide reasonable accommodation;

(5) failure to engage in interactive process;

(6) retaliation;

(7) failure to prevent;

(8) violation of Govt. Code § 12940(i);

(9) violation of Govt. Code § 12945.1;

(10) retaliation for requesting/taking CFRA leave;

(11) wrongful termination in violation of public policy; and

(12) intentional infliction of emotional distress.

On October 15, 2020, Defendants filed the instant Demurrer and Motion to Strike any claims for retaliation under Government Code Section 12940(m)(2) – for requesting or taking CFRA leave.

On November 13, 2020, the Court granted a motion to quash service of summons for lack of personal jurisdiction over Defendants MinebeaMitsumi Inc., Minebea Co. Ltd., Minebea Intec USA Inc., MinebeaMitsumi Group, and NHBB Inc.

The Court considered the moving, opposition and reply papers, and rules as follows:

Demurrer Standard

A demurrer tests the sufficiency of the pleading at issue as a matter of law. City of Chula Vista v. County of San Diego A demurrer may be sustained where the complaint fails to state facts sufficient to constitute a cause of action. CCP¿§¿430.10(e). The ultimate facts alleged in the complaint must be deemed true, as well as all facts that may be implied or inferred from those expressly alleged. Marshall v. Gibson, Dunn & Crutcher Mobilehome

Pursuant to CCP §430.10(f), uncertainty is a proper demurrer ground where the pleading is ambiguous and unintelligible.  Demurrers for uncertainty will only be sustained where the complaint is so bad that the defendant cannot reasonably respond - i.e., determine what issues must be admitted or denied or what counts or claims are directed against him or her.  Khoury v. Maly's  

If the demurrer is sustained, plaintiff “has the burden of proving the possibility of cure by amendment.” Czajkowski Grinzi .) Leave to amend must be allowed where there is a reasonable possibility of successfully stating a cause of action. Schulz v. Neovi  

Demurrer Analysis:

Procedural Issue: Page Limit on Plaintiff’s Opposition to Demurrer

Defendants point out that Plaintiff’s memorandum opposing the demurrer exceeds the 15-page limit for opposing memoranda set forth in California Rules of Court, Rule 3.1113(d). Defendants ask the Court to strike Plaintiff’s opposition to the demurrer in its entirety.

California Rules of Court, Rule 3.1113(d), states “Except in a summary judgment or summary adjudication motion, no opening or responding memorandum may exceed 15 pages. […] The page limit does not include the caption page, the notice of motion and motion, exhibits, declarations, attachments, the table of contents, the table of authorities, or the proof of service.”

The Court finds that Plaintiff’s memorandum opposing the demurrer is 17 pages long, excluding the caption page, the notice of motion and motion, exhibits, declarations, attachments, the table of contents, the table of authorities, or the proof of service. Therefore, the Court will not consider the last two pages of Plaintiff’s opposition.

Exhaustion of Administrative Remedies – First through Tenth Causes of Action

Defendants demur to the first through tenth causes of action on the ground that Plaintiff failed to exhaust his administrative remedies provided by the DFEH, since the complaint Plaintiff filed with the DFEH was so vague and bereft of particular allegations that Plaintiff cannot be said to have exhausted his administrative remedies. Additionally, Plaintiff failed to name Minebea Intec USA Inc., MinebeaMitsumi Inc., Minebea Co. Ltd., Escobar, or Severson in his DFEH complaint, so he cannot have exhausted his administrative remedies against them.

Before bringing a lawsuit for FEHA violations, an aggrieved employee must exhaust administrative remedies by timely filing an administrative complaint with the DFEH and receiving a right to sue notice. Govt. Code, §§ 12960, subd. (b), 12962, subd. (c). Exhaustion of administrative remedies is “a jurisdictional prerequisite to resort to the courts.” Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 70. The purpose of the charge is to supply fair notice of the facts, sufficient to permit investigation. Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th 1718, 1728. The general allegation of the discriminatory basis was sufficient to permit a more complete listing of discriminatory conduct in the complaint. Baker v. Children's Hospital Medical Center (1989) 209 Cal.App.3d 1057, 1065. Likewise in Sandhu v. Lockheed Missiles & Space Co. (1994) 26 Cal.App.4th 846, the plaintiff alleged discrimination based on age and race. Id. at p. 858. The court rejected the contention that his failure to specify his national origin discrimination, as opposed to race, would bar his claim. Id. at p. 859. The court considered the distinction to be inconsequential in view of the essentially fair notice given by the administrative charge. Id. at p. 859.

The Court finds that Plaintiff has exhausted his administrative remedies for his DFEH and CFRA causes of action by pleading the ultimate facts of those causes of action in his DFEH complaint such that Defendants were on fair notice of the facts sufficient to permit investigation. As in Baker, a general allegation in the DFEH complaint is sufficient to permit a more complete listing of the same type of illegal conduct in the Complaint filed with the Court. Defendants were given notice of the identity of the Plaintiff and his various alleged injuries such that Defendants could investigate the alleged misconduct. The fact that Plaintiff failed to name Minebea Intec USA Inc., MinebeaMitsumi Inc., Minebea Co. Ltd. in the DFEH complaint is irrelevant because those defendants have been dismissed from the lawsuit. The fact that Plaintiff failed to name Escobar and Severson is immaterial because they were Plaintiff’s supervisors at the Company Defendants, so allegations against the Company Defendants would necessarily be fair notice of facts prompting investigation into Plaintiff’s supervisors.

As such, Defendants’ demurrer to the first through tenth causes of action for failure to exhaust administrative remedies is OVERRULED.

Third Cause of Action: Disability Discrimination

Defendants demur to the third cause of action on the ground that Plaintiff fails to sufficiently allege disability discrimination because Plaintiff does not allege what physical disability he is supposed to have suffered and does not allege a causal nexus between the unknown disability and the only adverse employment action – his termination.

The elements of a cause of action for disability discrimination under FEHA are: (1) Plaintiff has a disability or medical condition or was regarded as suffering from a disability; (2) plaintiff could perform the essential duties of the job with or without reasonable accommodations; and (3) the defendant's adverse employment decision was based on plaintiff's actual or perceived disability or medical condition. Faust v. Cal. Portland Cement Co. (2007) 150 Cal.App.4th 864, 886; Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 254; Deschene v. Pinole Point Steel Co. (1999) 76 Cal.App.4th 33, 44.

The Court finds that Plaintiff has sufficiently alleged a cause of action for disability discrimination. Plaintiff has alleged that after hearing ageist comments from his supervisors, he required a two week leave of absences to deal with a serious medical problem, and that shortly after his return from the medical leave, he heard additional ageist comments about his ability to work and was subsequently terminated. While Plaintiff could certainly have included more details, the pleaded facts and the reasonable inferences the Court draws in favor of the Plaintiff on demurrer are sufficient to allege not only that Defendants were on notice that Plaintiff suffered some sort of physical condition that required Plaintiff to take time off of work but also that Plaintiff’s termination, shortly after returning from the leave prompted by his disability, was motivated by Plaintiff’s inability to work without accommodation for the alleged disability. Defendants read Hobson v. Raychem Corp. (1999) 73 Cal.App.4th 614 too broadly. Hobson does not hold that a disability discrimination cause of action must specify the alleged physical disability in the complaint or fail as a matter of law, rather that a plaintiff who has alleged a specific physical disability in a complaint cannot avoid summary judgment by adding facts about different types of mental disability to a statement of undisputed facts. Id. at pp. 630-631. Plaintiff here does not commit the error committed in Hobson.

As such, Defendants’ demurrer to the third cause of action for failure to state a claim is OVERRULED.

Fourth Cause of Action: Failure to Accommodate a Disability; and Fifth Cause of Action: Failure to Engage in a Good Faith Interactive Process

Defendants demur to the fourth and fifth causes of action on the grounds that Plaintiff fails to allege that Plaintiff was disabled, that Defendants knew Plaintiff was disabled which would have created a duty to accommodate any disability, or that Plaintiff was not given every accommodation requested because the only accommodation mentioned in the Complaint is the February 2018 leave of absence Plaintiff was allowed to take.

The elements 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.¿Wilson v. County of Orange¿(2009)¿169 Cal.App.4th¿1185, 1192. “Reasonable accommodation” means “‘a modification or adjustment to the workplace that enables the employee to perform the essential functions of the job held or desired.’”¿Scotch, supra, 173 Cal.App.4th at 994;¿Nadaf-Rahrov¿v. Neiman Marcus Group, Inc. (2008) 166 Cal.App.4th 952, 975-76¿(reasonable accommodation under FEHA includes adjusting the workplace to enable employees to perform essential functions of held or desired jobs).¿

 

Also, to 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.” Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1018. An employee cannot necessarily be expected to identify and request all possible accommodations during the interactive process itself because “ ‘ “[e]mployees do not have at their disposal the extensive information concerning possible alternative positions or possible accommodations which employers have....” ’ ” Ibid. However, “the initial burden rests primarily upon the employee ... to specifically identify the disability and resulting limitations, and to suggest the reasonable accommodations.” Id. at p. 1013.

The Court finds that Plaintiff has failed to sufficiently allege either the fourth cause of action for failure to accommodate a disability or the fifth cause of action for failure to engage in a good faith interactive process because, although Plaintiff has alleged some unknown disability, Plaintiff has not alleged any accommodation for the mystery disability that Plaintiff requested and Defendants denied. It is primarily the employee’s responsibility to identify the disability to the employer and to suggest some reasonable accommodation, although not all possible accommodations. Plaintiff fails to allege he has done so. Further, the one potential accommodation mentioned in the Complaint is the February 2018 leave of absence that Plaintiff successfully requested, took, and then returned to work afterwards. Thus, the allegations of the February 2018 leave of absence cannot support Plaintiff’s fourth or fifth causes of action and no other requested accommodation is mentioned in the Complaint.

As such, Defendants’ Demurrer to the fourth cause of action for failure to accommodate a disability and fifth cause of action for failure to engage in a good faith interactive process is SUSTAINED WITH LEAVE TO AMEND.

Scattered Allegations of Violation of Government Code § 12940(m)(2) – Retaliation for Requesting Reasonable Accommodation

Defendants demur to Plaintiff’s scattered allegations, which are not collected into a standalone cause of action, that Defendants retaliated against Plaintiff for making reasonable requests for accommodation, in violation of Government Code § 12940(m)(2).

The Court finds that Defendants’ demurrer to these scattered allegations is improper because it is not addressed to a cause of action. The correct method of addressing improper, scattered allegations that are not a cause of action is through a motion to strike. The Court will address Defendants’ motion to strike these allegations below.

As such, Defendants’ demurrer to the scattered allegations of violation of Government Code § 12940(m)(2) are OVERRULED.

Seventh Cause of Action: Failure to Prevent Discrimination and Harassment

Defendants demur to the seventh cause of action on the ground that Plaintiff fails to allege any reasonable steps that Defendants failed to take that were necessary to prevent any particular act of discrimination, retaliation, or harassment against Plaintiff.

In order to bring a claim for failure to prevent discrimination, harassment, or retaliation in employment action, plaintiff must show that (1) there is actionable discrimination, harassment, or retaliation by employees or non-employees; (2) defendant is plaintiff’s employer; (3) breach of duty; (4) legal causation; and (5) damages to plaintiff. Trujillo v. No. County Transit Dist.¿(1998) 63 Cal.App.4th 280, 287, 289; Carter v. Cal. Dept. of Veterans Affairs¿(2006) 38 Cal.4th 914, 925 fn. 4 (“courts have required a finding of actual discrimination or harassment under FEHA before a plaintiff may prevail under section 12940(k).”); Govt. Code §12940(k); Thompson v. City of Monrovia (2010) 186 Cal.App.4th 860, 880 (employees have no cause of action for a failure to investigate unlawful harassment or retaliation and to take corrective action, unless actionable misconduct has occurred.)

The Court finds that Plaintiff has sufficiently alleged a failure to prevent discrimination and harassment because the Complaint contains allegations that: (1) Plaintiff was harassed with ageist comments about his ability to complete his work by his supervisors Escobar and Severson; (2) In May 2018, Plaintiff reported this harassment to Defendants’ Vice President of Operations, who did nothing to prevent the alleged harassment from continuing; (3) the harassing comments continued after Plaintiff’s meeting with Defendants’ Vice President of Operations, until Plaintiff’s termination in June 2018; and (4) Defendants themselves terminated Plaintiff in June 2018 for allegedly discriminatory reasons. Thus, Plaintiff has sufficiently alleged facts showing that Defendants were aware Plaintiff was allegedly being harassed but failed to take any steps to curtail the harassment and even subjected Plaintiff to discrimination on the same basis.

As such, Defendants’ demurrer to the seventh cause of action for failure to prevent discrimination and harassment is OVERRULED.

Eighth Cause of Action: Aiding and Abetting FEHA Violations

Defendants demur to the eighth cause of action on the ground that Plaintiff fails to sufficiently allege both facts showing Defendants had knowledge of any FEHA violations and facts showing Defendants actively assisted in a violation of FEHA.

The FEHA does not provide a definition of “aiding and abetting.” Fiol v. Doellstedt (1996) 50 Cal.App.4th 1318, 1325 (interpreting former Cal. Gov’t Code § 12940(g).) It is appropriate, therefore, to consider the common law definition of aiding and abetting. Ibid. “Liability may ... be imposed on one who aids and abets the commission of an intentional tort if the person (a) knows the other's conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other to so act or (b) gives substantial assistance to the other in accomplishing a tortious result and the person's own conduct, separately considered, constitutes a breach of duty to the third person.” Saunders v. Superior Court (1994) 27 Cal.App.4th 832, 846. “Advice or encouragement to act operates as a moral support to a tortfeasor and if the act encouraged is known to be tortious it has the same effect upon the liability of the adviser as participation or physical assistance.... It likewise applies to a person who knowingly gives substantial aid

The Court finds that Plaintiff has failed to sufficiently allege that any of the Defendants knew the other Defendants were violating Plaintiff’s FEHA and CFRA rights and that any knowledgeable Defendants gave substantial assistance or encouragement to the Defendants violating Plaintiff’s FEHA or CFRA rights. Nor has Plaintiff alleged that any Defendant gave substantial assistance to any other Defendant violating Plaintiff’s FEHA or CFRA rights and the assisting Defendant’s actions were themselves a violation of Plaintiff’s FEHA or CFRA rights. At most, Plaintiff has alleged individual instances of FEHA violations that were each accomplished by individual defendants without the assistance of the other Defendants who were also allegedly violating Plaintiff’s FEHA rights. For example, Plaintiff’s allegations that both Escobar and Severson harassed Plaintiff with ageist comments is not sufficient to allege that either Escobar or Severson aided and abetted the other in harassing Plaintiff. Also, the inaction by Defendants’ Vice President of Operations regarding Escobar and Severson’s alleged harassment of Plaintiff is not, as a matter of law, aiding and abetting said harassment because the Vice President of Operations was alleged to be merely aware of the harassment and failed to prevent it, not actively encouraging or assisting in the harassment.

As such, Defendants’ demurrer to the eight cause of action is SUSTAINED WITH LEAVE TO AMEND.

Ninth Cause of Action: Failure to Provide CFRA Leave

Defendants demur to the ninth cause of action on the ground that Plaintiff fails to allege that Defendants interfered with or denied Plaintiff’s exercise of any CFRA rights.

California Family Rights Act (“CFRA”) requires an employer of 50 or more persons to grant a request by a qualified employee to take up to 12 weeks in any 12-month period for family care or medical leave. Gov. Code, § 12945.2, subds.(a), (c)(2)(A). Grounds for leave include family needs such as the birth or adoption of a child, serious illness of a family member and “an employee's own serious health condition” when that condition “makes the employee unable to perform the functions of the position of that employee....” Gov. Code, § 12945.2, subd. (c)(3)(C). CFRA defines a “[s]erious health condition” as “an illness, injury, impairment, or physical or mental condition that involves either of the following: [¶] (A) Inpatient care in a hospital, hospice, or residential health care facility. [¶] (B) Continuing treatment or continuing supervision by a health care provider.” Gov. Code, § 12945.2, subd. (c)(8). An employer may require an employee's request for leave be supported by a certification from the employee's health care provider. Id., subd. (k)(1).

“Violations of ... CFRA generally fall into two types of claims: (1) ‘interference’ claims in which an employee alleges that an employer denied or interfered with her substantive rights to protected medical leave, and (2) ‘retaliation’ claims in which an employee alleges that she suffered an adverse employment action for exercising her right to CFRA leave.” Rogers v. County of Los Angeles (2011) 198 Cal.App.4th 480, 487–88. The statutory authority for an “interference” claim arises from section 12945.2, subdivision (t), which makes it unlawful for an employer “to interfere with, restrain, or deny the exercise of, or the attempt to exercise, any right” provided by CFRA.

The Court finds that Plaintiff fails to allege that Plaintiff requested but was denied a medical leave for CFRA purposes. The Complaint merely recites the law and Plaintiff’s Opposition fails to point to any factual allegations regarding a denied medical leave. The only medical leave of absence mentioned in the Complaint is the leave that Plaintiff successfully requested, took, and returned to work from in February 2018. Plaintiff has not alleged he was ever denied a medical leave of absence.

As such, Defendants’ demurrer to the ninth cause of action is SUSTAINED WITH LEAVE TO AMEND.

Tenth Cause of Action: Retaliation in Violation of CFRA

Defendants demur to the tenth cause of action on the ground that Plaintiff fails to sufficiently allege that Plaintiff suffered an adverse employment action because Plaintiff requested and took CFRA leave, since the last time Plaintiff took CFRA leave was 4 months before his termination.

The elements of a cause of action for retaliation in violation of CFRA are: “ ‘(1) the defendant was an employer covered by CFRA; (2) the plaintiff was an employee eligible to take CFRA [leave]; (3) the plaintiff exercised her right to take leave for a qualifying CFRA purpose; and (4) the plaintiff suffered an adverse employment action, such as termination, fine, or suspension, because of her exercise of her right to CFRA [leave].’ ” Bareno Internat.

The Court finds that Plaintiff has sufficiently alleged retaliation in violation of CFRA because Plaintiff alleged that four months after taking his CFRA leave, and in concert with continuing harassment about his ability to perform his job at his age, Plaintiff was terminated. While the temporal proximity between the end of Plaintiff’s CFRA leave in February 2018 and Plaintiff’s termination in June 2018 could certainly be closer, Defendants have failed to meet their burden to provide this Court with binding authority that, as a matter of law, a Plaintiff cannot prevail on a CFRA retaliation claim when four months passed between the CFRA leave and the Plaintiff’s termination.

As such, Defendants’ demurrer to the tenth cause of action is OVERRULED.

Eleventh Cause of Action: Wrongful Termination in Violation of Public Policy

Defendants demur to the eleventh cause of action on the ground that it is derivative of Plaintiff’s other claims for violation of FEHA and CFRA.

The Court finds that Plaintiff’s wrongful termination in violation of public policy cause of action is sufficiently pleaded because Plaintiff has sufficiently pleaded other causes of action for violation of FEHA and CFRA, as discussed above.

As such, Defendant’s demurrer to the eleventh cause of action is OVERRULED.

Twelfth Cause of Action: Intentional Infliction of Emotional Distress

Defendants demur to the twelfth cause of action on the grounds that Plaintiff has failed to plead any facts showing extreme and outrageous conduct and any claim Plaintiff could bring would be preempted by Worker’s Compensation.

To establish a prima facie cause of action for intentional infliction of emotional distress, plaintiff must show: (1) outrageous conduct by defendant; (2) defendant’s intention of causing or reckless disregard of the probability of causing emotional distress; (3) plaintiff’s suffering severe or extreme emotional distress; and (4) actual and proximate causation of the emotional distress by defendant’s outrageous conduct. Vasquez v. Franklin Management Real Estate Fund, Inc. (2013) 222 Cal.App.4th 819, 832. 

For conduct to be “outrageous,” it must be so extreme as to exceed all bounds of that usually tolerated in a civilized society.¿Hughes v. Pair¿(2009) 46 Cal.4th 1035, 1050-1051.¿And the defendant must either intend his or her conduct to inflict injury or engaged in it with the realization that injury will result.¿Ibid.¿Liability for¿intentional¿infliction of emotional distress does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.¿Ibid.¿¿¿ 

Employment actions can involve outrageous conduct. Murray v. Oceanside Unif. Sch. Dist. (2000) 79 Cal.App.4th 1338, 1362-1363; Fisher v. San Pedro Peninsula Hosp. (1989) 214 Cal.App.3d 590, 618. However, personnel management decisions, even motivated by wrongful intent, are not outrageous conduct as to individual supervisors who discriminate. Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 80 (“Managing personnel is not outrageous conduct….”); see also Shoemaker v. Myers (1990) 52 Cal.3d 1, 25¿(determining applicability of Workers’ Compensation preemption, discipline and criticism, that is independent of a “violation of an express statute or violation of fundamental public policy,” is not outrageous conduct.). 

The Court finds that Plaintiff fails to provide sufficient facts that rise to the level of outrageous conduct as a matter of law. Plaintiff’s claim mainly stems from his termination from employment and allegedly harassing comments such as “[Plaintiff] could no longer work as fast as the younger employees” and “[Plaintiff] should be looking to retire.” There are no other allegations against Defendants of actions that fall outside the bounds of would usually be tolerated in civilized society. Further, the Complaint offers merely conclusory allegations that Plaintiff “suffered anxiety, humiliation, and emotional and physical distress,” but fails to allege any facts showing severe emotional distress. Given that the standard for extreme and outrageous conduct is set high, the Court finds that Plaintiff fails to establish the claim for¿intentional¿infliction of emotional distress. See¿Hughes v. Pair, supra,¿46 Cal.4th¿at¿1051.

As such, Defendants’ demurrer to the twelfth cause of action is SUSTAINED WITH LEAVE TO AMEND.

Motion to Strike Standard:

The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. CCP § 436(a). The court may also strike all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. CCP § 436(b). It may be an abuse of discretion to deny leave to amend after granting a motion to strike a complaint if the defect is curable. CLD Const., Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1146-1147.

Borrowing from the law governing demurrers, if a motion to strike is granted, the plaintiff “has the burden of proving the possibility of cure by amendment.” Czajkowski v. Haskell & White, LLP (2012) 208 Cal.App.4th 166, 173 (quoting Grinzi v. San Diego Hospice Corp. (2004) 120 Cal.App.4th 72, 78-79 (internal quotations omitted)).

Motion to Strike Analysis

Defendant moves to strike the following sentences from Plaintiff’s Complaint:

Defendant argues that the sections above plead facts that could only support a cause of action for violation of Government Code § 12940(m)(2) – retaliation for requesting reasonable accommodations. Defendant argues the above sections are improper because Plaintiff does not plead a violation of Government Code § 12940(m)(2) as a standalone cause of action, presented in accordance with California Rule of Court 2.112 which requires each cause of action to be labeled by its number, nature, the party asserting it, and the party against whom it is alleged.

The Court agrees. The allegations Defendant identifies above are only relevant to a cause of action for violation of Govt. Code § 12940(m)(2) – retaliation for requesting accommodations, which Plaintiff does not plead as a separate cause of action, as required by California Rule of Court 2.112. Because Plaintiff has not pleaded a separate cause of action relating to these allegations, the allegations are presently irrelevant and should be stricken. The Court is unpersuaded by Plaintiff’s argument that the fourth cause of action for violation of Govt. Code § 12940(m) sufficiently satisfies California Rule of Court 2.112 because a violation of Govt. Code § 12940(m) – failure to provide reasonable accommodation – and a violation of Govt. Code § 12940(m)(2) – retaliation for requesting reasonable accommodation – require distinct facts be proved before liability can be established, making them distinct causes of action. The fact that they happen to be arranged in adjacent code sections does not make them the same cause of action. Further, Plaintiff’s allegations about retaliation for requesting reasonable accommodation appear under the heading for Plaintiff’s sixth cause of action for FEHA retaliation, strongly suggesting that Plaintiff did not intend any cause of action for violation of Govt. Code § 12940(m)(2) would be included in Plaintiff’s fourth cause of action for Govt. Code § 12940(m). Plaintiff itself admits that its allegations for violation of Govt. Code § 12940(m)(2) do not belong under the heading for the sixth cause of action.

Since the Court is granting Plaintiff leave to amend the Complaint after the rulings on demurrer, Plaintiff is encouraged to clear up which causes of action it is bringing and which allegations must constitute their own cause of action.

As such, Defendant’s Motion to Strike the above referenced portions of Plaintiff’s Complaint is GRANTED WITH LEAVE TO AMEND.

Conclusion

Defendants’ Demurrer to the first, second, third, fifth, sixth, seventh, tenth, and eleventh causes of action is OVERRULED.

Defendants’ Demurrer to the fourth, eighth, ninth, and twelfth causes of action is SUSTAINED WITH LEAVE TO AMEND.

Defendants’ Motion to Strike is GRANTED WITH LEAVE TO AMEND for:

Plaintiff to submit an amended complaint within 20 days.

Defendants to give notice.

Dated:

__________________________________________

Dennis J. Landin

Judge of the Superior Court

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