Case Number: VC066258 Hearing Date: August 22, 2017 Dept: SEC

AMEZQUITA v. WAL-MART ASSOCIATES INC., ET AL.

CASE NO.: VC066258

HEARING: 08/22/17

JUDGE: RAUL A. SAHAGUN

#5

TENTATIVE ORDER

I. Defendants DOMINICK SANCHEZ, WAL-MART ASSOCIATES, INC., and WAL-MART STORES, INC.’s demurrer is OVERRULED as to uncertainty, and SUSTAINED with 10 days leave to amend.

II. Defendants DOMINICK SANCHEZ, WAL-MART ASSOCIATES, INC., and WAL-MART STORES, INC.’s motion to strike is MOOT.

Moving Party to give notice.

This employment action was filed on 4/21/17. Plaintiff Amezquita asserts causes of action for: (1) Wrongful Termination – Public Policy; (2) Wrongful Termination – GC 12940(a); (3) Failure to Pay Overtime Wages; (4) Failure to Provide Meal and Rest Periods; (5) Failure to Pay Discharged Employee; (6) Lab. Code 226.6, 226.8 whistleblower; (7) Failure to Provide Correct Itemized Statement; (8) Unfair Business Practices; (9) CC 51.7.

Plaintiff alleges that she was harassed when she requested family leave/compliance with FMLA. (Complaint, Par. 4.)

Demurrer

Defendant DOMINICK SANCHEZ individually demurs to the second cause of action on the grounds that it fails to state facts sufficient to constitute a cause of action and is uncertain; and Defendants DOMINICK SANCHEZ, WAL-MART ASSOCIATES, INC., and WAL-MART STORES, INC. demur to ninth cause of action on the grounds that it fails to state facts sufficient to constitute a cause of action and is uncertain

Uncertainty

Demurrer on grounds of uncertainty will not be sustained unless the complaint is so bad that the defendant cannot reasonably respond. (Koury v. Maly’s of California (1993) 14 Cal.App.4th 612, 616.)

The court finds the complaint is not so uncertain that Defendants cannot reasonably respond. Demurrer on grounds of uncertainty is OVERRULED.

Second Cause of Action – Wrongful Termination – GC 12940(a)

Individuals who did not themselves qualify as employers cannot be sued for alleged discriminatory acts. FEHA’s provisions regarding employment discrimination applied only to employers, unlike the provisions for harassment which did apply to individual persons as well as employers. (Reno v. Baird (1998) 18 Cal.4th 640, 645–646; Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 62.)

Par. 13 complains that Defendants “fired Plaintiff… because of lawful complaints to the company and/or medical condition.” This allegation of workplace discrimination is barred against Sanchez individually.

Par. 14 then alleges that Defendants “had no legitimate or nondiscriminatory reason for harassing, pressuring or firing Plaintiffs.” Plaintiff does not explain how Sanchez “harassed” her. Plaintiff’s allegations elsewhere in the complaint does not assist the court. Par. 5 alleges that Plaintiff complained about “sexual harassment,” but does not explain the facts or circumstance supporting this allegation.

Accordingly, the court finds the allegations against Sanchez for individual liability under FEHA is insufficient. Demurrer is SUSTAINED with 10 days leave to amend.

Ninth Cause of Action – CC 51.7

CC 51.7(a) provides, “All persons within the jurisdiction of this state have the right to be free from any violence, or intimidation by threat of violence, committed against their persons or property because of political affiliation, or on account of any characteristic listed or defined in subdivision (b) or (e) of Section 51, or position in a labor dispute, or because another person perceives them to have one or more of those characteristics. The identification in this subdivision of particular bases of discrimination is illustrative rather than restrictive.”

Par. 48 alleges that Defendants were aware of Plaintiff’s disability/injury, but “retaliated with intimidation, threats and/or violence” against Plaintiff.

Under California law, statutory causes of action must be pleaded with particularity. “‘Every fact essential to the existence of statutory liability must be pleaded.’” (Richardson-Tunnell v. Schools Ins. Program for Employees (2007) 157 Cal.App.4th 1056, 1061.) The conclusory allegation of “intimidation, threats and/or violence” is insufficient under this statutory claim.

Demurrer is SUSTAINED with 10 days leave to amend.

Motion to Strike

Based on the court’s grant of leave to amend the Complaint, motion to strike is MOOT.