Case Number: KC070427 Hearing Date: February 06, 2019 Dept: O

After hearing, defendants Spray
Systems, Inc., Nick Testa, Bruce Clark, and Jaime De La Rosa’s demurrer to
plaintiff Manuel Esparza’s (“plaintiff”) first amended complaint (“FAC”) is
OVERRULED as to the Eighth and Ninth Causes of Action, and SUSTAINED with 15
days leave to amend as to the First through Fifth Causes of Action, and without
leave to amend as to individual defendants in the Tenth Cause of Action.

Defendants
demur to the First through Fifth, and Eighth through Tenth Causes of Action on
the grounds that they fail to state facts sufficient to constitute a cause of
action and are uncertain.

UNCERTAINTY

A demurrer on grounds of
uncertainty will not be sustained unless the complaint is so bad that the
defendant cannot reasonably respond. (See Koury
v. Maly’s of California (1993) 14 Cal.App.4th 612, 616.)

The
Court finds that the allegations are not so uncertain that defendants cannot
reasonably respond. Accordingly,
demurrer on this ground is OVERRULED.

1st
– 4th CAUSES OF ACTION

WRONGFUL
TERMINATION, EMPLOYMENT DISCRIMINATION BASED ON AGE, RACE, and DISABILITY:

Defendants
contend plaintiff voluntarily resigned in order to receive vacation pay during
his absence from work. (See FAC ¶ 19.) However, a review of paragraph 19 indicates
that plaintiff did not allege a “voluntary” resignation. Paragraph 19 alleges that defendants
“informed Plaintiff that in order to [receive his vacation pay], he would have
to write a note stating that he was resigning . . . [and] Defendants promised
to reinstate Plaintiff after Plaintiff received his vacation benefits.” (Id.) Paragraph 20 further alleges that plaintiff
was not paid the full amount owed, nor his job reinstated.

Further,
paragraphs 15 through 19 in the FAC allege facts supporting constructive
termination based on age, race, and disability. Specifically, the FAC alleges that:

Defendant
De La Rosa said: “fucking lazy ass old
man, you’re useless” (Id. ¶15);

Defendants
Testa and Clark said: “Mexicans are
pigs”; “[a]ll you fucking Mexicans are thieves.
I pay you to work no steal[]” (Id.
¶17); and,

Defendant
Testa said: “Mexicans are slaves. If I
wanted I could tie you up and there isn’t anything you can do about it[]” (Id.)

Paragraph
17 also alleges that plaintiff was hit in the head when defendant Testa wanted
him to work faster. However, it appears
that such allegations supporting the Second, Third and Fourth Causes of Action
do not specifically link the intolerable allegations of race, age and
disability to the constructive firing or wrongful termination.

At the
hearing, the plaintiff’s counsel asserted that under the First Cause of Action,
the theory of liability was of “actual discharge” as opposed to “constructive
discharge.” This was not what the Court
or defense counsel understood to be the theory under the facts alleged in the
FAC. Given this representation at the
hearing, the Court finds there are insufficient facts alleging not only as to
the discrimination causes of action in the Second through Fourth Causes of
Action, but as to the First Cause of Action under an “actual discharge” theory as
well.

The demurrer
is SUSTAINED with 15 days to amend with respect to the First through Fourth
Causes of Action.

5th
CAUSE OF ACTION

FAILURE
TO ACCOMMODATE DISABILITY: Paragraph 19 alleges that plaintiff saw a doctor who provided a note
that stated plaintiff “could not return to work, until he was seen by a
specialist.” (See FAC ¶ 19.) “Clark took
the note from Plaintiff and stated that it was enough. Plaintiff was never reasonably accommodated
by being offered any other positions which did not require operating
machinery.” (Id.)

A “‘[r]easonable
accommodation’ may include either of the following[:] Job restructuring, part-time or modified work
schedules, reassignment to a vacant position, acquisition or modification of
equipment or devices, adjustment or modifications of examinations, training
materials or policies, the provision of qualified readers or interpreters, and
other similar accommodations for individuals with disabilities.” (Gov. Code § 12926(p).) The Court finds the allegations are
insufficient to state a cause of action for failure to accommodate. In particular, plaintiff’s note stated that plaintiff
could not return to work until he was seen by a specialist. Defendants accommodated this request and
allowed plaintiff to take a leave of absence to see his specialist. Plaintiff does not allege that he requested
an accommodation to a different position that did not require operating
machinery.

Accordingly,
demurrer is SUSTAINED with 15 days leave to amend.

8th
– 9th CAUSES OF ACTION

FAILURE
TO PAY WAGES IN A TIMELY MANNER and FAILURE TO PAY EARNED WAGES:

Defendants
contend the Eighth and Ninth Causes of Action are barred because claims Labor
Codes Sections 204, 206, and 210 do not provide for a private right of
action.

As an
initial matter, plaintiff does not oppose the demurrer as to Section 210. Accordingly, any reference to Section 210 is
stricken.

With respect
to the remaining Sections 204 and 206, they are not exclusively the province of
the Labor Commissioner. The California
Supreme Court has held “[i]f an employer fails to pay
wages in the amount, time or manner required by contract or by statute, the
employee has two principal options. The employee may seek judicial relief by filing
an ordinary civil action against the employer for… wages prescribed by statute.
Or the employee may seek administrative relief by filing a wage claim with the commissioner.” (Cuadra
v. Millan (1998) 17 Cal.4th 855, 858.)

With
the exception of Section 210, which will be stricken, the demurrer to the Eighth
and Ninth Causes of Action is OVERRULED.

10th
CAUSE OF ACTION

Plaintiff
concedes that the 10th cause of action should not be directed
against the individual defendants, but only against company, defendant Spray
Systems, Inc.

Accordingly,
the individual defendants’ demurrer to the 10th cause of action is
SUSTAINED without leave to amend.