Case Number: 19LBCV00059 Hearing Date: September 17, 2019 Dept: S27

RELEVANT BACKGROUND

On January 28, 2019, Plaintiff Aaron Huitzil (“Plaintiff”) filed a complaint against Defendants Praxair, Inc. and Alberto Castro (collectively “Defendants”).

On March 5, 2019, Defendant Praxair, Inc. filed an answer to the complaint.

On March 7, 2019, Defendant Praxair filed a Notice of Removal to Federal Court.

On May 20, 2019, Defendant Alberto Castro filed a demurrer to the complaint.

On June 6, 2019, Plaintiff filed a first amended complaint against Defendants, asserting causes of action for physical disability discrimination in violation of the FEHA, failure to accommodate disability in violation of the FEHA, failure to engage in a good faith interactive process in violation of the FEHA, retaliation in violation of the FEHA, failure to prevent retaliation from occurring in violation of the FEHA, wrongful termination in violation of public policy, and harassment due to disability.

On July 11, 2019, Defendant Praxair, Inc. filed an answer to the first amended complaint.

On July 11, 2019, Defendant Alberto Castro filed the instant demurrer to the first amended complaint.

On September 4, 2019, Plaintiff filed opposition to the demurrer.

On September 10, 2019, Defendant filed a reply.

INTRODUCTION

Defendant Alberto Castro (“Defendant”) demurs to the 7th (harassment due to disability) cause of action in the first amended complaint of Plaintiff Aaron Huitzil (“Plaintiff”). Defendant argues Plaintiff failed to allege sufficient facts to constitute a cause of action for harassment due to disability and/or the cause of action is uncertain.

STANDARD

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) “‘A demurrer reaches only to the contents of the pleading and such matters as may be considered under the doctrine of judicial notice’ [Citations]; The allegations of the pleading demurred to must be regarded as true [Citations]; a demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the pleading [Citations], or the construction placed on an instrument pleaded therein [Citation], or facts impossible in law [Citation], or allegations contrary to facts of which a court may take judicial knowledge. [Citations]” (South Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732.) “The following basic principle is also applicable to general demurrers, to wit: all that is necessary against a general demurrer is that upon a consideration of all the facts stated, it appears that the party whose pleading is attacked by such a demurrer is entitled to any relief at the hands of the court against his adversary, notwithstanding the facts may not be clearly stated, or may be intermingled with a statement of other facts irrelevant to the cause of action or defense shown, or although the plaintiff, in his complaint, or the defendant, in his answer, may demand relief to which he is not entitled under the facts alleged. [Citation]” (Id. at 732-733.)

ANALYSIS

A prima facie case for harassment requires the following elements: (1) plaintiff belongs to a protected group; (2) plaintiff was subjected to unwelcome harassment; (3) the harassment complained of was based on protected status; (4) the harassment complained of was sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment; and (5) respondeat superior. (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 608.)

“[T]he Legislature intended that commonly necessary personnel management actions such as hiring and firing, job or project assignments, office or work station assignments, promotion or demotion, performance evaluations, the provision of support, the assignment or nonassignment of supervisory functions, deciding who will and who will not attend meetings, deciding who will be laid off, and the like, do not come within the meaning of harassment. These are actions of a type necessary to carry out the duties of business and personnel management. These actions may retrospectively be found discriminatory if based on improper motives, but in that event the remedies provided by the FEHA are those for discrimination, not harassment. Harassment, by contrast, consists of actions outside the scope of job duties which are not of a type necessary to business and personnel management. This significant distinction underlies the differential treatment of harassment and discrimination in the FEHA.” (Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 64-65.)

Plaintiff failed to allege sufficient facts to constitute a cause of action for harassment due to disability against Defendant. Plaintiff did not allege facts showing he was subjected to unwelcome harassment by Defendant, the harassment complained of was based on his disability, and the harassment complained of was sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment. Plaintiff alleged he was, starting in or around March 2018, “continually harassed and subjected to a hostile work environment by the actions, conduct and comments of Defendants’ employees, which actions, conduct and comments combined to create and allow a pattern of discriminatory treatment towards him due to his disability.” (FAC ¶73.) However, the conclusory allegation is insufficient. Plaintiff did not identify the alleged harassing “actions, conduct and comments” by Defendant, if any, when they occurred, and how they are related to his disability. The only specific allegations regarding Defendant’s conduct involve commonly necessary personnel management duties (i.e. informing Plaintiff that his employment had been terminated and handing him a termination letter, receiving Plaintiff’s complaint of discrimination, etc.), which do not come within the meaning of harassment. (FAC ¶¶16, 47.) (See Janken at 64-65.)

Based on the foregoing, Defendant’s demurrer to the 7th COA is sustained with leave to amend.

CONCLUSION

Defendant Alberto Castro’s demurrer to the 7th (harassment due to disability) cause of action in Plaintiff Aaron Huitzil’s first amended complaint is sustained with 30 days leave to amend.