Case Number: BC543921    Hearing Date: August 08, 2014    Dept: 58

JUDGE ROLF M. TREU
DEPARTMENT 58
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Hearing Date: Friday, August 8, 2014
Calendar No: 8
Case Name: Renteria v. SMG Food and Beverage, LLC, et al.
Case No.: BC543921
Motion: Demurrers
Moving Party: (1) Defendants SMG Food and Beverage, LLC and Rosie Romo
(2) Defendant SMG (erroneously sued as Savor Long Beach)
Opposing Party: Plaintiff Flavia Renteria
Notice: OK

Tentative Ruling: Demurrers are sustained as to the 2nd COA with 15 days leave to amend.
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Background –
On 4/28/14, Plaintiff Flavia Renteria filed this action against Defendants SMG Food and Beverage, LLC; Savor Long Beach; and Rosie Romo arising out of her employment. Plaintiff asserts causes of action for (1) FEHA discrimination, (2) FEHA harassment, (2) FEHA retaliation, (4) FEHA failure to prevent discrimination, harassment, and retaliation, (5) FEHA failure to provide reasonable accommodations, (6) FEHA failure to engage in a good faith interactive process, (7) wrongful termination in violation of public policy, and (8) declaratory judgment.

Factual Allegations of the Complaint –
Plaintiff was employed as a prep cook from 5/26/05 at the Long Beach Convention Center (¶ 17) and was supervised by Romo (¶ 19). In March 2013, Plaintiff was injured while lifting a 50 lb sack of sugar as part of her work duties. ¶ 18. On 3/5/13, Plaintiff reported her injury to Romo, who stated that Plaintiff would be fired if Plaintiff reported it to Human Resources. ¶ 19. Plaintiff continued to work despite her injury and pain. ¶ 20.

On 5/1/13, a Human Resources supervisor Catherine Doe met with Plaintiff because Plaintiff’s co-workers had mentioned Plaintiff appeared to be in paid: Plaintiff explained what happened and was told to see the company doctor. ¶ 22. The doctor returned Plaintiff to work with restrictions, but Catherina told Plaintiff that she should not return to work until all restrictions were cleared because the restrictions would not be accepted. ¶¶ 23-24. Plaintiff was not contacted regarding here employment or disability from 5/1/13 to 2/6/14. ¶ 25.

On 2/6/14, Plaintiff’s doctor returned Plaintiff to work with fewer restrictions, and Plaintiff was permitted to work on 2/22/14. ¶ 26. However, Romo “immediately began to harass, intimidate and coerce Plaintiff,” forcing Plaintiff to work in disregard of her restrictions. ¶ 27. On 3/4/14, Plaintiff was forced to go back on disability leave. ¶ 28.

Demurrers –
Defendants demur to the 2nd COA for FEHA harassment. The demurrers are substantively identical and argue that Plaintiff fails to allege sufficient facts to support severe or pervasive conduct.

“Whether an environment is ‘hostile’ or ‘abusive’ can be determined only by looking at all the circumstances. These may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.” Hope v. California Youth Authority (2005) 134 Cal.App.4th 577, 588. However, “the law does not exhibit ‘zero tolerance’ for offensive words and conduct. Rather, the law requires the plaintiff to meet a threshold standard of severity or pervasiveness.” Etter v. Veriflo Corp. (1998) 67 Cal.App.4th 457, 467. “In determining what constitutes ‘sufficiently pervasive’ harassment, the courts have held that acts of harassment cannot be occasional, isolated, sporadic, or trivial, rather the plaintiff must show a concerted pattern of harassment of a repeated, routine or a generalized nature.” Hope, 134 Cal.App.4th at 588 (quoting Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 610).

As pertinent to the 2nd COA for harassment, Plaintiff’s factual allegations concern only aspects of her duties and assignments where Plaintiff’s work restrictions were not honored. See Complaint ¶¶ 24, 27. Plaintiff’s opposition characterizes this conduct as “physical abuse” (Opp’n p. 3:26); however, the factual allegations support only commonly necessary personnel management actions that do not come within the meaning of harassment. Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 700; see also Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 63. Plaintiff fails to allege any facts to support harassment, intimidation, or coercion by Romo (Complaint ¶ 27) that consists of non-personnel management actions. Therefore, Plaintiff fails to allege sufficient facts supporting severe or pervasive conduct that unreasonably interfered with the work environment. See, e.g., Lyle v. Warner Bros. Television Production (2006) 38 Cal.4th 264, 283-84.

The demurrers are sustained as to the 2nd COA. Plaintiff requests leave to amend, which is granted because this is the first challenge to the pleadings addressed by the Court.