Case Number: BC666150 Hearing Date: October 01, 2018 Dept: 61

Defendant Mimi London, Inc.’s Demurrer to the First Amended Complaint is OVERRULED.

Defendant Mimi London, Inc.’s Motion to Strike Portions of the First Amended Complaint is DENIED.

Defendant to answer within 20 days.

JUDICIAL NOTICE

The court may take judicial notice of “official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States,” “[r]ecords of (1) any court of this state or (2) any court of record of the United States or of any state of the United States,” and “[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (Evid. Code § 452, subds. (c), (d), and (h).)

MLI asks this court to take judicial notice Nolasco’s prior Complaint, this court’s April 20, 2018 ruling in this action, and Nolasco’s later-filed FAC.

The court takes judicial notice of these matters.

II. DEMURRER

A demurrer should be sustained only where the defects appear on the face of the pleading or are judicially noticed. (Code Civ. Pro., §§ 430.30, et seq.) A court should sustain a demurrer if a complaint does not allege facts that are legally sufficient to constitute a cause of action. (See id. § 430.10, subd. (e).) As the Supreme Court held in Blank v. Kirwan (1985) Cal.3d 311: “We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. . . . Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.” (Id. at p. 318; see also Hahn. v. Mirda (2007) 147 Cal.App.4th 740, 747 (“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.”))

“In determining whether the complaint is sufficient as against the demurrer … if on consideration of all the facts stated it appears the plaintiff is entitled to any relief at the hands of the court against the defendants the complaint will be held good although the facts may not be clearly stated.” (Gressley v. Williams (1961) 193 Cal.App.2d 636, 639.)

“A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of Cal., Inc. (1993) 14 Cal.App.4th 612, 616.) Such demurrers “are disfavored, and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.” (Mahan v. Charles W. Chan Insurance Agency, Inc. (2017) 14 Cal.App.5th 841, 848.)

A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment. (Schifando v. City of Los Angeles, supra, 31 Cal.4th at p. 1081.) The demurrer also may be sustained without leave to amend where the nature of the defects and previous unsuccessful attempts to plead render it probable plaintiff cannot state a cause of action. (Krawitz v. Rusch (1989) 209 Cal.App.3d 957, 967.)

WLI argues that the First through Seventh Causes of Action in the Complaint must fail because Nolasco fails to allege that he has a disability, or that there are any circumstances indicating a discriminatory motive for his termination. (Motion at pp. 2–7.)

The court addressed these matters at some length in its previous ruling on WLI’s Motion for Judgment on the Pleadings.

Government Code § 12940(a) or the Fair Employment and Housing Act (FEHA) prohibits employer discriminatipercon on the basis of disability. To establish a discrimination claim under FEHA, an employee must prove the following elements: “(1) he was a member of a protected class, (2) he was qualified for the position he sought or was performing competently in the position he held, (3) he suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some other circumstance suggests discriminatory motive.” (Dinslage v. City and County of San Francisco (2016) 5 Cal.App.5th 368, 378.) The FEHA plaintiff “must plead a prima facie case in order to survive demurrer.” (Caldwell v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 202 fn. 7.)

MLI argues that Nolasco’s claims cannot survive because he alleges that he was terminated after returning from a short period of leave following a fractured hand. Although temporal proximity between an employer’s knowledge of a disability and an adverse employment action may be sufficient to establish a prima facie case for discrimination (See Arteaga v. Brink’s, Inc. (2008) 163 Cal.App.4th 327, 353), the only disability or protected activity which Nolasco could argue was close to his termination was his nine-day medical leave to recuperate from a fracture in his right hand. (Motion at p. 3; Complaint ¶ 21.) MLI argues that Nolasco’s fracture and resulting days of medical leave do not constitute a disability, and thus Nolasco has not alleged a prima facie case of disability discrimination.

Nolasco responds that he is not required to plead temporal proximity. (Opposition at p. 3.) He is, however, required to plead a prima facie case of discrimination. (Caldwell, supra, 41 Cal.App.4th at p. 202 fn. 7.) Nolasco has not pleaded any circumstances giving rise to an inference of discriminatory motive, other than his allegation that discriminatory motive was a substantial factor in his termination. (Complaint ¶ 36.) The temporal proximity between Nolasco’s fractured hand, leave of absence, and termination in January 2016 is thus the only circumstance alleged in the Complaint which could give rise to a discriminatory inference, and even then, only if the fractured hand could be considered a disability.

The court concludes that Nolasco’s fractured hand is not a disability within the meaning of FEHA. A “physical disability” under FEHA refers to a physiological condition that affects one of the major bodily systems and limits a major life activity. (Gov. Code § 12926, subd. (m).) Nolasco has not pleaded how his fractured hand fits within this framework. The Department of Fair Employment and Housing has promulgated regulations interpreting this definition, which state that a “disability” does not include

conditions that are mild, which do not limit a major life activity, as determined on a case-by-case basis. These excluded conditions have little or no residual effects, such as the common cold; seasonal or common influenza; minor cuts, sprains, muscle aches, soreness, bruises, or abrasions; non-migraine headaches, and minor and non-chronic gastrointestinal disorders.

(Cal. Code Regs., tit. 2, § 11065, subd. (d)(9)(B).) Nolasco’s fractured hand, which placed him off work for a mere ten days, and for which he alleges no residual effects upon his return, falls into this category of excluded conditions. Nolasco accordingly has not alleged that his fracture constituted a disability within the meaning of FEHA, and has not alleged any adverse employment action with any indicia of discriminatory intent. Accordingly, Nolasco’s First Cause of Action for discrimination, and his derivative claims for failure to reasonably accommodate, prevent discrimination, engage in interactive process, declaratory judgment, and wrongful termination, are subject to dismissal.

This reasoning applies to Nolasco’s Second Cause of Action for Retaliation. Government Code § 12940, subd. (m) prohibits the failure to provide a “reasonable accommodation for the known physical or mental disability of an applicant or employee,” and also prohibits retaliating against an employee “for requesting an accommodation under this subdivision, regardless of whether the request was granted.” (Gov. Code § 12940, subd. (m)(1)–(2).) Accordingly, if the employee requests an accommodation for something other than a disability under this subsection, then the retaliation provision does not apply. Because no inference of retaliation can be drawn from the Complaint as drafted, save by temporal proximity to Nolasco’s fractured hand, this court’s ruling that the fractured hand did not constitute a disability necessarily requires a ruling against Nolasco’s retaliation claim.

(4/20/2018 Order.)

In the FAC, Nolasco has not pleaded any additional facts which would lead to a determination that his fractured hand was a disability within the meaning of the above authority. He pleads that his fracture “was not a minor injury, as confirmed by the fact that his doctor believing that he was unable to do his major life activity of working, and needing time to recuperate in order to return to participating in his major life activity of working, ordered him off work.” (FAC ¶ 22.) But once more, the mere fact that a malady drives one away from work for a short time, as with the cold or flu, does not create a disability.

However, MLI does not address an alternative basis for liability asserted in the FAC, whose factually underpinnings have been expanded somewhat since the previous Complaint. This would be the “perceived disability” theory, where regardless of the actual disabling character of Nolasco’s fracture, an employer may be liable for FEHA discrimination if they regarded Nolasco’s non-disability as disabling. As is stated in FHEA: “It is the intent of the Legislature that the definitions of physical disability and mental disability be construed so that applicants and employees are protected from discrimination due to an actual or perceived physical or mental impairment that is disabling, potentially disabling, or perceived as disabling or potentially disabling.” (Gov. Code § 12926.1, subd. (b), emphasis added.) It has accordingly been held that employers have a duty under FEHA not to discriminate against employees whom it regards as disabled, regardless of actual disability. (See Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.app.4th 34, 60 [holding that duty to reasonably accommodate requires accommodation of employees regarded by employer as disabled].)

The FAC here contains, where the previous Complaint did not, an allegation that MLI “perceived Plaintiff to be disabled and that he potentially would be limited in his capacity to do work and require accommodations upon his eventual return.” (FAC ¶ 24.) Nolasco accordingly pleads “perceived disability” as an alternative basis for his claims. (FAC ¶¶ 33–101.) MLI does not address this basis for liability in their Demurrer.

Accordingly, the Demurrer is OVERRULED.

MOTION TO STRIKE

Any party, within the time allowed to respond to a pleading, may serve and file a notice of motion to strike the whole or any part thereof. (Code Civ. Proc., § 435(b)(1)). The notice of motion to strike a portion of a pleading shall quote in full the portions sought to be stricken except where the motion is to strike an entire paragraph, cause of action, count or defense. (California Rules of Court Rule 3.1322.)

The grounds for a motion to strike shall appear on the face of the challenged pleading or form any matter of which the court is required to take judicial notice. (Code Civ. Proc., § 437(a)). The court then may strike out any irrelevant, false, or improper matter inserted in any pleading and 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. (Code Civ. Proc., § 436.) When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend. (Perlman v. Municipal Court (1979) 99 Cal.App.3d 568, 575.)

MLI moves to strike paragraphs 17 through 20 of the FAC, which describe Nolasco’s other instances of medical leave. (Motion at p. 2.) MLI argues that these other incidents are irrelevant to proving discrimination because this court has already ruled the temporal proximity between them and Nolasco’s termination did not establish circumstances indicative of discriminatory intent. (Motion at p. 3.) However, the fact that these events are not close enough in time to indicate discrimination on their own does not definitively establish their irrelevance to the present case; Nolasco in fact pleads that his prior incidents of leave colored MLI’s perception of his fracture. (FAC ¶ 24.) The court will not exercise its discretion to strike the materials indicated.

MLI also argues that Nolasco has not pleaded facts sufficient to support a prayer for punitive damages. (Motion at pp. 4–5.)

Punitive damages are allowed in non-contract cases when a defendant is guilty of “oppression, fraud, or malice . . . .” (Civ. Code § 3294.) The terms are defined as:

1.“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.

2.“Oppression” means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.

3.“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.

Something more than the mere commission of a tort is always required for punitive damages. (Taylor v. Superior Court (1979) 24 Cal.3d 890, 894.) Proof of negligence, gross negligence, or recklessness is insufficient to warrant an award of punitive damages. (Dawes v. Sup.Ct. (Mardian) (1980) 111 Cal.App.3d 82, 88–89.) Punitive damages may be recovered in an action for negligence or other nonintentional torts if the plaintiff pleads and proves that the defendant acted with the state of mind described as “conscious disregard” of the potential dangers to others. (Pfeifer v. John Crane, Inc. (2013) 220 Cal.App.4th 1270, 1299.) When malice is based on a defendant’s conscious disregard of Plaintiff’s rights, the conduct must be both despicable and willful. (College Hospital v. Superior Court (1994) 8 Cal.4th 794, 713 (“College Hospital”).)

The FAC alleges that Nolasco was fired because MLI perceived him as disabled, even though Nolasco was performing competently at his position. (FAC ¶ 42.) The FAC futher alleges that Nolasco has suffered a variety of economic and noneconomic damages. (FAC ¶ 29.) Nolasco finally alleges that MLI, by terminating Nolasco because of his disability, “intended . . . to cause injury to Plaintiff.” (FAC ¶ 47.) The court finds these allegations adequately suggestive of malice to support a claim for punitive damages.

The Motion to Strike is DENIED.