Case Number: BC697643 Hearing Date: June 01, 2018 Dept: 39

Howell v. Therapeutic Living Centers for the Blind, Inc., et al., BC697643

Demurrer and Motion to Strike by Defendant Therapeutic Living Centers for the Blind, Inc.: the demurrer to the seventh cause of action is SUSTAINED, with 20 days’ leave to amend, and otherwise OVERRULED. The motion to strike is DENIED.

Background

This discrimination and wrongful termination action arises out of Plaintiff Aretha Howell (“Howell”)’s alleged employment with Defendant Therapeutic Living Centers for the Blind, Inc. (“TLC”). Plaintiff alleges that she was hired in September 2006 as a Staffing Coordinator. (Compl. ¶ 14.) According to Plaintiff, she suffered a very serious brain aneurysm in or around 2010, which resulted in her being off work for approximately eight months. (Compl. ¶ 15.) The Complaint alleges that Plaintiff’s blood pressure become uncontrollable in or around the summer of 2017, such that Plaintiff feared she would suffer from another aneurysm, and that Plaintiff provided Defendant with notice of her medical condition and her need to be off work while adjusting to medication. (Compl. ¶ 6.) Plaintiff was allegedly placed off work by her medical provider on August 21, 2017. (Compl. ¶ 17.) The Complaint further alleges that Plaintiff provided Defendant with regular updates of her need for a medical leave of absence and that her last note certified that she was able to return to work on March 1, 2018. (Compl. ¶ 17.) According to Plaintiff, she received a COBRA notice on January 12, 2018 informing her that her employment had ended. (Compl. ¶ 18.) When Plaintiff allegedly reached out to Defendant in February 2018 to ask if she was still employed, Defendant allegedly told her that it had been unable to hold her position open, provided her a list of available positions, and informed her that she would need to fill out a new employment application if she wished to be considered for employment. (Compl. ¶ 19.)

Plaintiff filed the subject Complaint on March 16, 2018, alleging 8 causes of action for: (1) disability discrimination in violation of the Fair Employment and Housing Act (“FEHA”); (2) failure to engage in a timely, good-faith interactive process in violation of the FEHA; (3) failure to provide reasonable accommodation in violation of the FEHA; (4) retaliation in violation of the FEHA; (5) failure to prevent or remedy discrimination and/or retaliation in violation of the FEHA; (6) interference with rights under the California Family Rights Act (“CFRA”); (7) retaliation under the CFRA; and (8) wrongful discharge in violation of public policy.

Defendant now demurs to the Complaint for failure to allege facts sufficient to state causes of action against Defendant and also moves to strike the punitive damages allegations from the Complaint. Plaintiff opposes the demurrer and motion to strike.
Demurrer Meet and Confer

Effective January 1, 2016, a party filing a demurrer “shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Code Civ. Proc., § 430.41, subd. (a).) “The parties shall meet and confer at least five days before the date the responsive pleading is due. If the parties are not able to meet and confer at least five days prior to the date the responsive pleading is due, the demurring party shall be granted an automatic 30-day extension of time within which to file a responsive pleading, by filing and serving, on or before the date on which a demurrer would be due, a declaration stating under penalty of perjury that a good faith attempt to meet and confer was made and explaining the reasons why the parties could not meet and confer.” (Code Civ. Proc., § 430.41, subd. (a)(2).)

Similarly, as of January 1, 2018, a party filing a motion to strike must meet and confer in person or by telephone with the party who filed the pleading that is subject to the motion and identify all of the specific allegations that it believes are subject to be stricken and identify with legal support the basis of the deficiencies. (Code Civ. Proc., § 435.5, subd. (a).)

Defendant submits the Declarations of Larry C. Baron (“Baron Decls.”) in support of the subject demurrer and motion. Baron attests that he sent Plaintiff’s counsel Tyler F. Clark (“Clark”) a detailed letter advising him of TLC’s intent to file a demurrer and a motion to strike and the bases for the demurrer and motion. (Baron Decls. ¶¶ 3, Exs. 1.) According to Baron, the parties exchanged emails concerning the demurrer and motion to strike and met and conferred by telephone on April 27, 2018. (Baron Decls. ¶¶ 4-5, Exs. 2-3.)

Plaintiff contends that the meet and confer was not in good faith and further argues that Defendant did not provide legal support for the intended demurrer or respond to Plaintiff’s legal authority. The court has reviewed the parties’ correspondence and notes that Defendant did not specifically cite legal authority in support of its arguments. Nevertheless, as the parties have fully briefed the subject demurrer and motion and appear to have discussed the issues, and as a failure to meet and confer does not provide grounds to sustain or overrule a demurrer or to grant or deny a motion to strike, the court finds that Defendant substantially complied with the statutory requirements. (See Code Civ. Proc., §§ 430.41, subd. (a); 435.5, subd. (a).)
Demurrer
I. 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 (Hahn).) 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 (Donabedian).) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters; therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (Code Civ. Proc., §§ 430.30, 430.70.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.) The general rule is that the plaintiff need only allege ultimate facts, not evidentiary facts. (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550 (Doe).) The court “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law….” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525 (Berkley).) “When a court evaluates a complaint, the plaintiff is entitled to reasonable inferences from the facts pled.” (Duval v. Board of Trustees (2001) 93 Cal.App.4th 902, 906 (Duval).)

Demurrers do not lie as to only parts of causes of action where some valid claim is alleged but “must dispose of an entire cause of action to be sustained.” (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119.) “Generally it is an abuse of discretion to sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment.” (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 (Goodman).)
II. Analysis
A. The Sixth Cause of Action for Interference under the CFRA

The CFRA is contained within the FEHA, which is intended to give employees an opportunity to leave work for certain medical reasons without jeopardizing job security. (Rogers v. County of Los Angeles (2011) 198 Cal.App.4th 480, 487 (Rogers).) “The CFRA closely parallels its federal counterpart, the Family and Medical Leave Act of 1993 (FMLA) (29 U.S.C. § 2601 et seq.), which also provides that an eligible employee ‘shall be entitled to a total of 12 workweeks of leave during any 12-month period’ due, among other things, to ‘a serious health condition that makes the employee unable to perform the functions of the position of such employee.’ Because the CFRA and the FMLA contain nearly identical provisions regarding family or medical leave (Gov. Code, § 12945.2, subd. (a); 29 U.S.C. § 2612(a)), California courts routinely rely on federal cases interpreting the FMLA when reviewing the CFRA. [Citation.]” (Rogers, ibid.)

“Violations of the 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.” (Id. at pp. 487-488.)

“A CFRA interference claim ‘consists of the following elements: (1) the employee’s entitlement to CFRA leave rights; and (2) the employer’s interference with or denial of those rights.’ ” (Moore v. Regents of Univ. of Cal. (2016) 248 Cal.App.4th 216, 251.)

Defendant demurs to the sixth cause of action on the grounds that TLC provided Plaintiff with approximately 24 weeks of leave time, which exceeded the 12-week leave period permitted under the CFRA. (Dem. 3, citing Compl. ¶¶ 17-19 [alleging that Plaintiff began her leave on August 21, 2017 and that the leave continued at least until January 2018].)

While Defendant contends that it provided Plaintiff over 6 months of leave, the Complaint alleges that Plaintiff began her leave on August 21, 2017 and that she received a COBRA notice that her employment relationship with Defendant had ended on January 12, 2018. (Compl. ¶¶ 17-18.) Treating the allegations of the Complaint as admitted, as the court must on the subject demurrer, Plaintiff alleges that she was given over 4 months of medical leave prior to the termination of her employment. Nevertheless, this amount still exceeded the 12 weeks leave required under the CFRA. (See Rogers, supra, 198 Cal.App.4th at p. 488.)

Defendant argues that it was not required to keep Plaintiff’s position vacant once she exhausted her 12-week entitlement period. (Dem. 3, citing Rogers, supra, 198 Cal.App.4th at p. 488 [ruling that the CRFA’s reinstatement right only applies when an employee returns to work on or before the expiration of the 12-week protected leave period].)

According to Plaintiff, the sixth cause of action also alleges that Defendant violated her rights under the CFRA by failing to advise her about her leave rights under the CFRA and procedures regarding taking of protected leave, mischaracterizing her protected leave, and requiring her to work during the medical leave. (Dem. Opp. 10; Compl. ¶ 72.) These allegations provide separate grounds for an interference claim under the CFRA.

Defendant cites Bellone v. Southwick-Tolland Regional School District (1st Cir. 2014) 748 F.3d 418, 423 (Bellone) and Capilli v. Whitesell Construction Co. (3d Cir. 2008) 271 F. App’x 261, 267 (Capilli) to argue that an employee who has received all of the leave to which she was entitled does not have a cognizable claim against an employer under the CFRA for the employer’s technical violation. Neither of these federal court cases involved an attack on the pleadings but, rather, are summary judgment cases. Therefore, they are not of assistance to the issues before the court.

On demurrer, a plaintiff need only plead ultimate facts in support of their claim. (See Doe, supra, 42 Cal.4th at p. 550.) At this stage of the proceedings, Plaintiff’s allegations that Defendant committed violations in interference of her rights under the CFRA (including by failing to advise her about her leave rights under the CFRA and procedures, mischaracterizing her protected leave, and requiring her to work during the medical leave) are sufficient to state a cause of action for interference under the CFRA.

For these reasons, the court OVERRULES the demurrer to the sixth cause of action.
B. The Seventh Cause of Action for Retaliation under the CFRA

A plaintiff can establish a prima facie case of retaliation in violation of the CFRA by showing the following: (1) the defendant was a covered employer; (2) the plaintiff was eligible for CFRA leave; (3) the plaintiff exercised his or her right to take a qualifying leave; and (4) the plaintiff suffered an adverse employment action because he or she exercised the right to take CFRA leave. (Rogers, supra, 198 Cal.App.4th at p. 491, emphasis in original.) As stated above, the California Courts have held that the CRFA’s reinstatement right only applies when an employee returns to work on or before the expiration of the 12-week protected leave period. (Id. at p. 488.)

Defendant contends that Plaintiff exceeded her 12-week entitlement to CFRA leave and that she therefore cannot state a claim for retaliation under the FEHA for Defendant’s alleged termination of her employment. (Dem. 4-6; citing Rogers, 198 Cal.App.4th at p. 488 and Neisendorf v. Levi Strauss & Co. (2006) 143 Cal.App.4th 509, 517-518 (Neisendorf) [finding that an employee could not state a CFRA retaliation claim where it was undisputed that the employer provided the full 12 workweeks of leave to which she was entitled].)

Plaintiff cites Dudley v. Department of Transportation (2001) 90 Cal.App.4th 255, 644 (Dudley) to argue that an employee may still bring a retaliation claim under the CFRA after exhausting her protected leave. (Dem. Opp. 10.) Dudley, however, does not support the proposition that an employee may plead such a retaliation claim based on grounds of their termination, after exceeding CFRA leave.

In Dudley, the employee alleged that “she was criticized, subjected to leave control, and ‘required to account for each and every day of her illness in a manner which was not required of other employees’ because she took leaves of absences to address her health problems. (Dudley, supra, 90 Cal.App.4th at p. 264.) Furthermore, the Dudley employee alleged that following two leaves of absences she took to control her medical condition, she was served with notices of adverse action which resulted in a salary reduction and 10-day suspension. (Ibid.) The Court of Appeal held that these allegations were sufficient to constitute a cause of action for retaliation in violation of the CFRA, despite the fact that the employee likely exhausted her CFRA leave by the time the employer terminated her employment. (Id. at pp. 264-265.) Dudley does not stand for the proposition that an employee may state a claim for retaliation based on the termination of her employment when she has exceeded the leave allowed under the CFRA. Such termination is legally allowed under Rogers and Neisendorf, as stated above.

In the case at hand, the seventh cause of action does not allege that Plaintiff engaged in any form of retaliation against Plaintiff aside from her termination after she had taken more than 12 weeks of medical leave. (See Compl. ¶¶ 16-18, 80-84.) Even construing the allegations of the Complaint in the light most favorable to Plaintiff, the Complaint does not plead any facts from which the court could conclude that Defendant took any action it was not entitled to take under the CFRA. (See Rogers, supra, 198 Cal.App.4th at p. 488.)

For these reasons, the court SUSTAINS the demurrer to the seventh cause of action. The court grants 20 days leave to amend to allow Plaintiff the opportunity to plead sufficient facts to state a cause of action for retaliation under the CFRA.
C. The First Cause of Action: Discrimination in Violation of the FEHA

The elements of a FEHA discrimination claim are “(1) [Plaintiff] was a member of a protected class, (2) [Plaintiff] was qualified for the position he sought or was performing competently in the position he held, (3) [Plaintiff] suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some other circumstance suggests discriminatory motive.” (Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 355.)

Defendant contends that it did not discriminate against Plaintiff because it engaged in the interactive process with Plaintiff and provided her with a reasonable accommodation of a medical leave of absence for her hypertension and the opportunity to apply for a list of available positions upon her return. (Dem. 8.) Defendant, however, does not cite any legal authority to support its proposition that its act of providing medical leave as an accommodation or pointing Plaintiff to alternate positions upon her return is sufficient, as a matter of law, to preclude Plaintiff from asserting a cause of action for disability discrimination. And the demurrer does not demonstrate that Plaintiff has failed to plead a required element of her claim for discrimination or that Defendant did not engage in an adverse employment action, as a matter of law. While Defendant also contends that Plaintiff failed to follow-up with Defendant’s offer of a reasonable accommodation because she did not fill out an employment application for an alternate open position with TLC, these allegations go to Plaintiff’s claims for failure to engage in the interactive process and failure to provide reasonable accommodation—not her claim that Defendant discriminated against her by terminating her employment based on her physical disability. (See Dem. 8-9.) Thus, Defendant fails to meet its burden on the subject demurrer to demonstrate that the first cause of action is defective on the face of the Complaint.

On reply, Defendant argues that Plaintiff’s allegations support the reasonable inference that she was totally disabled and unable to perform the essential functions of her job and that she was therefore not a qualified individual with a disability. (Reply 7.) However, Defendant did not raise this argument in its initial papers and the court will not consider this argument on reply. (Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764 (Reichardt) [“Points raised for the first time in a reply brief will ordinarily not be considered, because such consideration would deprive the respondent of an opportunity to counter the argument.”].)

In sum, Defendant does not demonstrate that the first cause of action for disability discrimination is defective on the face of the Complaint, and the court OVERRULES the demurrer to the first cause of action.
D. Second Cause of Action for Failure to Engage in a Timely, Good-Faith Interactive Process and Third Cause of Action for Failure to Provide Reasonable Accommodation

Government Code, section 12940 provides in relevant part that it is unlawful for an employer “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.” (Gov. Code, § 12940, subd. (n).) “The employee must initiate the process unless his or her disability and the resulting limitations are obvious. Once initiated, the employer has a continuous obligation to engage in the interactive process in good faith. [Citation.]” (Swanson v. Morongo Unified School District (2014) 232 Cal.App.4th 954, 971.) “Both employer and employee have the obligation ‘to keep communications open’ and neither has ‘a right to obstruct the process.’ [Citation.] ‘Each party must participate in good faith, undertake reasonable efforts to communicate its concerns, and make available to the other information which is available, or more accessible, to one party. Liability hinges on the objective circumstances surrounding the parties’ breakdown in communication, and responsibility for the breakdown lies with the party who fails to participate in good faith.’ ” (Id. 232 Cal.App.4th at pp. 971-972.)

Similarly, it is unlawful for an employer “to fail to make reasonable accommodation for the known physical or mental disability of an applicant or employee.” (Gov. Code, § 12940, subd. (m).) “The essential elements of a failure to accommodate claim are: (1) the plaintiff has a disability covered by the FEHA; (2) the plaintiff is a qualified individual (i.e., he or she can perform the essential functions of the position); and (3) the employer failed to reasonably accommodate the plaintiff’s disability.” (Cuiellette v. City of Los Angeles (2011) 194 Cal.App.4th 757, 766 (Cuiellette).) “Under the FEHA, ‘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.’ ” (Ibid.) “If the employee cannot be accommodated in his or her existing position and the requested accommodation is reassignment, an employer must make affirmative efforts to determine whether a position is available. [Citation.] A reassignment, however, is not required if there is no vacant position for which the employee is qualified.” (Id. at pp. 766-767, internal quotation marks omitted.)

Defendant demurs to the second and third causes of action on the grounds that TLC engaged in the interactive process and reasonable accommodation by first providing Plaintiff with medical leave under the CFRA and extending that leave beyond the 12-week period required under the law and by later providing Plaintiff with a list of available positions at TLC and requesting she fill out a new employment application to ascertain her qualifications for any of the vacant positions she wished to accept. (Dem. 8.) Defendant argues that Plaintiff was responsible for the breakdown in the interactive process because the Complaint does not allege that Plaintiff filled out a new “employment application” with TLC, express an interest in any of the vacant positions on the list provided to her, or propose an alternative reasonable accommodation or any reasonable accommodation to Defendant. (Dem. 9.) The court disagrees.

Viewing the allegations of the Complaint liberally and in context, Plaintiff alleges that she initiated the interactive process and requested an accommodation by providing Defendant notice of her medical condition and requesting medical leave on August 21, 2017. (Compl. ¶¶ 16-17.) Plaintiff further alleges that she provided Defendant with notice that she would be on medical leave until March 1, 2018, but that Defendant did not contact her or notify her of her termination until she reached out to Defendant in February 2018 and inquired whether she was still employed. (Compl. ¶¶ 17, 19.) According to the Complaint, Plaintiff was given notice that her employment relationship with Defendant had ended through a COBRA notice that she received on January 12, 2018, during her medical leave. (Compl. ¶ 18.) Although Defendant contends that it provided her a reasonable accommodation by providing her a list of open positions and requesting she fill out a new “employment application,” these facts suggest that Defendant had terminated her employment during her medical leave and that she was no longer an employee of Defendant at the time Defendant allegedly made this additional accommodation. (Compl. ¶¶ 17-19.) The reasonable inference from the allegations of the Complaint is that Defendant was responsible for the breakdown in the interactive process when it terminated her employment without notice in or around January 2018 and that its subsequent actions—which were allegedly taken weeks after the end of her employment—did not constitute a “reasonable accommodation.” (See Compl. ¶¶ 18-19; see also Swanson, supra, 232 Cal.App.4th at p. 970 [“Although an employer does not have an obligation to create a new job, reassign another employee, or promote a disabled employee, [c]ourts have made it clear that an employer has a duty to reassign a disabled employee if an already funded, vacant position at the same level exists. [Citation.] Moreover, a disabled employee seeking reassignment to a vacant position is entitled to preferential consideration.”], internal quotation marks omitted.) At this stage of the proceedings, the court treats these facts as admitted and is entitled to reasonable inferences from the facts pled. (See Berkley, supra, 152 Cal.App.4th at p. 525; Duval, supra, 93 Cal.App.4th at p. 906.)

On reply, Defendant contends that it had no reason to believe Plaintiff would return to work on March 1, 2018, given that her prior return to work dates had been extended and that the allegations of the Complaint support the reasonable inference that Plaintiff was totally disabled and unable to perform the essential functions of her job. (Reply 7-8.) Defendant did not raise these arguments or argue that Plaintiff did not constitute a “qualified” individual with a disability in the initial papers. Defendant only demurred to the second and third causes of action on the grounds that its provision of a list of available positions and a new “employment application” were sufficient. (See Dem. 8-9.) Accordingly, the court will not consider these arguments on the present demurrer. (See Reichardt, supra, 52 Cal.App.4th at p. 764.)

Defendant also argues that its accommodations were reasonable given the length of Plaintiff’s medical leave. However, the Complaint alleges that Defendant did not communicate with Plaintiff regarding additional accommodations prior to terminating her employment on or around January 2018. (See Compl. ¶¶ 18-19.) As stated above, viewing the allegations of the Complaint liberally and in context, the Complaint sufficiently alleges that Defendant unilaterally terminated Plaintiff’s employment during her medical leave, without prior notice, and did not offer Plaintiff an alternative opportunity for employment until weeks later. At this stage of the proceedings, these allegations are sufficient to state the second and third causes of action for failure to engage in the interactive process and provide a reasonable accommodation. (See Swanson, supra, 232 Cal.App.4th at p. 970.)

For these reasons, the court OVERRULES the demurrer to the second and third causes of action.
E. Fifth Cause of Action for Failure to Prevent or Remedy Discrimination and/or Retaliation under the FEHA

Defendant cites cases including Shoemaker v. Myers (1990) 52 Cal.3d 1, 24 to argue that dismissal of a claim is appropriate where it is duplicative of a plaintiff’s other claims. (Dem. 10.)

Plaintiff’s fifth cause of action arises under Government Code, section 12940, subdivision (k) which is a separate statutory provision and which provides a separate basis for liability, with separate elements, than Plaintiff’s other asserted causes of action. Defendant does not provide any legal authority for the proposition that a plaintiff may not assert claims under section 12940, subdivision (k) in addition to other claims under the FEHA or CFRA. Accordingly, Defendant’s argument fails.

Defendant additionally demurs to the fifth cause of action on the grounds that Plaintiff has failed to state a cause of action for discrimination under the FEHA. Having overruled the demurrer to the first cause of action for discrimination under the FEHA, the court likewise OVERRULES the demurrer to the fifth cause of action.
F. Fourth Cause of Action for Retaliation under the FEHA and Eighth Cause of Action for Wrongful Discharge in Violation of Public Policy

Defendant demurs to the fourth and eighth causes of action on the grounds that Plaintiff has failed to state her other causes of action for violation of the FEHA and CFRA. Having overruled the demurrer to the first cause of action for discrimination under the FEHA, the court likewise OVERRULES the demurrer to the fourth and eighth causes of action.
III. Conclusion

In sum, the court SUSTAINS the demurrer to the seventh cause of action for retaliation under the CFRA with 20 days leave to amend. The demurrer is otherwise OVERRULED.
Motion to Strike

I. Legal Standard

Pursuant to Code of Civil Procedure, section 436, “the court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. (b) Strike out 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.” The grounds for a motion to strike must “appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.” (Code Civ. Proc., § 437.)

Motions to strike are used to challenge defects in the pleadings not subject to demurrer. (Ferraro v. Camarlinghi (2008) 161 Cal.App.4th 509, 529 (Ferraro).) Any party may move to strike the whole or any part of a pleading within the time allotted to respond to the pleading. (Code Civ. Proc., § 435, subd. (b)(1).) The allegations of a complaint “must be liberally construed, with a view to substantial justice between the parties.” (Code Civ. Proc., § 452.) The court “read[s] allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume[s] their truth.” (Clauson v. Sup. Ct. (1998) 67 Cal.App.4th 1253, 1255 (Clauson).)

A notice of motion to strike a portion of the pleading must quote in full the portions sought to be stricken except where the motion is to strike an entire paragraph, cause of action, or defense. (Cal. Rules of Court, rule 3.1322(a).)
II. Analysis

Defendant moves to strike Plaintiff’s punitive damages claim and specifically moves to strike paragraphs 30, 40, 50, 58, 66, 76, 87, and 98 of the Complaint as well as both paragraphs 2 of the Prayer.

“To support punitive damages, the complaint … must allege ultimate facts of the defendant’s oppression, fraud, or malice.” (Cyrus v. Haveson (1976) 65 Cal.App.3d 306, 316-317 (Cyrus).) “ ‘Malice’ means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” (Civ. Code, § 3294 subd. (c)(1).) “ ‘Oppression’ means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” (Civ. Code, § 3294 subd. (c)(2).) “ ‘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)(3).) A “conclusory characterization of defendant’s conduct as intentional, willful and fraudulent is a patently insufficient statement of ‘oppression, fraud, or malice, express or implied,’ ” and inadequate to support punitive damages. (Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872.)

Civil Code, section 3294, subdivision (b) provides:

An employer shall not be liable for damages pursuant to subdivision (a), based upon acts of an employee of the employer, unless the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice. With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation.

(Civ. Code, § 3294, subd. (b).)

Defendant contends that Plaintiff fails to allege facts which raise the inference that TLC’s conduct was malicious, fraudulent, or oppressive. According to Defendant, the Complaint fails to allege facts showing that that Defendants engaged in conduct that may reasonably be regarded as despicable or outrageous. (Mot. 5-7.) The court disagrees. Viewing the allegations of the complaint liberally and as admitted, the Complaint alleges that Defendant’s officers, directors, or managing agents intentionally and knowingly terminated Plaintiff’s employment without communicating with Plaintiff or giving her notice or first offering a reasonable accommodation and committed other actions in conscious and willful disregard of her rights under the FEHA and CFRA, while she was out on medical leave recovering from medical conditions that she feared would cause another severe brain aneurysm. At the pleading stage, these allegations are sufficiently outrageous to state a claim for punitive damages.

Defendants further contend that Plaintiff fails to plead that any alleged wrongdoing was on the part of an officer, director, or managing agent of TLC. The court again disagrees. The Complaint alleges that Defendant’s “managing agents, officers, or directors” intentionally terminated Plaintiff’s employment and failed to engage in the interactive process or provide reasonable accommodation while she was out on medical leave, in conscious disregard for Plaintiff’s rights under the FEHA. (See Compl. ¶¶ 23-25, 30, 33-36, 40, 43-45, 50, 53-54, 58, 90, 94.) The Complaint also alleges that Defendant’s “managing agents, officers, or directors” intentionally interfered with Plaintiff’s rights under the CFRA, with a conscious disregard for Plaintiff’s rights. (Compl. ¶¶ 72, 76.) At this stage of the proceedings, these allegations of ultimate fact of intentional conduct by Defendant’s “managing agents, officers, or directors” to consciously and willfully violate Plaintiff’s rights under the FEHA and CFRA are sufficient for Plaintiff to state a claim for punitive damages. (See Cyrus, supra, 65 Cal.App.3d at pp. 316-317; see also Clauson, supra, 67 Cal.App.4th at p. 1255.) Although Plaintiff will be required to prove her allegations with evidence at a later stage of the proceedings, on the present motion to strike these allegations suffice.

Defendant cites cases including Kelly-Zurian Inc. v. Wohl Shoe Co. (1994) 22 Cal.App.4th 397 to argue that a managing agent of a defendant corporation must be one with “substantial authority over decisions that set [a company’s] general principles and rules” and the authority to make corporate policy. (Mot. 8.) Defendant’s cited cases did not arise at the pleading stage and are inapposite to the question of the applicable standard for a plaintiff to plead a punitive damages claim against a corporate defendant. Accordingly, Defendant’s argument fails.

For these reasons, the court DENIES the motion to strike the punitive damages claim.