(1) Demurrer to First Amended Complaint (FAC) (2) Motion to Strike (3)CMC

Ruling:  (1-3) Off Calendar – no hearing will be held.    (1) The Demurrer isSUSTAINED with 15 days leave to amend.    Defendants’ unopposed RFJN is DENIED. Defendants attach the proceedings between Plaintiff and the Board of Registered Nursing and improperly ask the Court delve into the facts, inferences and interpretation of the documents and make the factual determination that Plaintiff was still using drugs at the time of his termination and was legally terminated.  While the Court may take judicial notice of official acts of state agencies, the truth of matters asserted in such documents is not subject to judicial notice.  (Arce v. Kaiser Foundation Health Plan, Inc. (2010) 181 Cal. App. 4th 471, 483.)  Defendants’ request to take judicial notice of Plaintiff’s FAC filed in this action is unnecessary.

The FAC fails to state facts sufficient to show Defendants acted with a discriminatory motive, and there was a nexus between Defendants’ actions and Plaintiff’s alleged status as a former drug addict.  All of the COAs in the FAC stem from Plaintiff’s allegations that he was terminated and treated differently based on his prior drug addiction or Defendants’ perception of him as a prior drug addict.  To state a claim for violation of FEHA, a plaintiff need only “show that: he or she was a member of a protected class; was qualified for the position he sought; suffered an adverse employment action, and there were circumstances suggesting that the employer acted with a discriminatory motive.” (Jones v. Department of Corrections & Rehabilitation (2007) 152 Cal.App.4th 1367, 1379.)  To establish a claim for wrongful discharge in violation of public policy, a plaintiff must plead and prove (1) a termination or other adverse employment action; (2) the termination or other action was a violation of a fundamental public policy, as expressed in a constitutional, statutory, or regulatory provision; and (3) a nexus between the adverse action and the employee’s protected status or activity. (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.)  FEHA’s policy prohibiting disability discrimination in employment is sufficiently substantial and fundamental to support a claim for wrongful termination in violation of public policy. (City of Moorpark v. Superior Court(1998) 18 Cal.4th 1143, 1159–1161.)

Here, by Plaintiff’s own allegations, Defendants terminated him due torestrictions on his license imposed by the Board of Registered Nursing, which Plaintiff alleges was the reason he could not perform his duties, not because of some disability or perceived disability that restricted his ability to work and required reasonable accommodation.  Plaintiff does not allege any nexus whatsoever between the restrictions on his ability to perform his job, and any alleged disability or perceived disability.  Plaintiff categorically states he had stopped using drugs for several years leading up to his termination, so by Plaintiff’s own admissions, the license restriction was completely unrelated to his alleged disability.  Plaintiff cites no authority that Defendants had some legal obligation to provide a monitor so Plaintiff could work under the restrictions imposed on his license, or that terminating Plaintiff based on the Plaintiff’s inability to work under a restricted license can be actionable.

Further, Plaintiff’s own allegations regarding Defendants’ conduct once they became aware of the Nursing Board’s accusation that he was diverting medications — over a year before he was terminated — shows a lack of discriminatory conduct.  By Plaintiff’s own admissions, Plaintiff was not fired after he disclosed the investigation and accusation, but was suspended, then following an investigation by Defendants, was “cleared andreinstated” and then promoted to a charge nurse position for which Plaintiff previously had applied.  Again, based on Plaintiff’s own allegations, it was only after the Board restricted Plaintiff’s license, preventing Plaintiff from working without a monitor, that Defendant terminated Plaintiff.

Plaintiff’s argument that the Demurrer does not comply with Code of Civil Procedure section 430.60 and Rule 3.1320(a) of the California Rules of Court, is rejected.  The Notice of Demurrer provided notice to Plaintiff of the specific statutory grounds for the demurrer and that it was to the entire complaint, and each cause of action therein.

(2) The Motion to Strike is DENIED without prejudice as MOOT.

(3) CMC is rescheduled to 6-3-14, Dept. C13, at 8:45 am.  Moving Parties are to give notice.