2014-00704166

Defendant XL Fire Protection Co’s
1) Demurrer to Complaint
2) Motion to Strike Portions Of Complaint

Defendant XL Fire Protection’s demurrer to plaintiff Halloran’s complaint is OVERRULED.

As to plaintiff’s first cause of action for discrimination based on disability and/or medical condition, plaintiff alleged that he suffered a heart attack that he reported to his employer, that he requested medical leave, and that he was terminated 4 days after reporting back to work after taking a week’s medical leave to recover from his heart attack. These are sufficient facts to state a prima facie case of discrimination based on disability and/or medical condition. Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354.

As to plaintiff’s second cause of action for failure to engage/provide accommodations, after plaintiff Halloran reported his heart attack and need for medical leave defendant XL Fire Protection had an affirmative duty to inquire about accommodations even absent a specific request. See Gov’t Code § 12940(n) and Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 262 -263.

As to plaintiff’s third cause of action for retaliation, plaintiff has alleged sufficient facts to support his claim for relation based on defendant’s response to his medical leave. See Gov’t Code § 12940(h) and Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1125.

As to plaintiff’s fourth cause of action for discrimination based on age, plaintiff has alleged sufficient facts at this pleading stage to state this cause of action. Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354. Allegations as to motivation for plaintiff’s discharge can be made on information and belief at this pleading stage.

As to plaintiff’s fifth cause of action for failure to prevent discrimination and/or retaliation, plaintiff’s causes of action for discrimination based on disability/medical condition and age support this cause of action. See Gov’t Code § 12940(i),(k).

As to plaintiff’s sixth cause of action for wrongful termination in violation of public policy, plaintiff’s FEHA claims will support his cause of action for wrongful termination in violation of public policy. Holmes v. General Dynamics Corp. (1993) 17 Cal.App.4th 1418, 1426 n. 8; Roby v. McKesson Corp. (2010) 47 Cal.4th 686, 702.

As to plaintiff’s seventh cause of action for IIED, plaintiff’s cause of action for wrongful discharge in violation of public policy including discrimination based on disability/medical condition support this cause of action at this pleading stage. See, Phillips v. Gemini Moving Specialist (1998) 63 Cal.App.4th 563, 577.

Finally, because plaintiff has alleged sufficient facts to apprise defendant XL Fire Protection of the basis of these claims so that defendant can respond, defendant’s special demurrer to each of these causes of action on the ground of uncertainty is OVERRULED. Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.

Defendant XL Fire Protection’s motion to strike portions of plaintiff Halloran’s complaint is DENIED.

As to interest and prejudgment interest, postjudgment interest is 10% and prejudgment interest could be granted in the court’s discretion at the conclusion of this case and thus is not shown to be improper as a matter of law. See Civil Code § 3287(b). Next, plaintiff’s cause of action for discrimination and retaliation based on disability and/or medical condition will support a claim for punitive damages at this pleading stage, and plaintiff has alleged sufficient facts that his termination based on these grounds was authorized and/or ratified by high level management at defendant XL Fire Protection. See Casey v. Western Atlas, Inc. (1999) 76 Cal.App.4th 895, 912. Finally, FEHA causes of action will support a claim for attorney’s fees. See Gov’t Code § 12965(b) and Anthony v. City of Los Angeles (2008) 166 Cal.App.4th 1011, 1016.

Defendant XL Fire Protection is ordered to e-file and serve an answer to plaintiff Halloran’s complaint within 14 days.

Moving party to give notice.