Case Number: BC537283    Hearing Date: July 23, 2014    Dept: 34

Moving Party: Defendant City of Los Angeles (“defendant”)

Resp. Party: Plaintiff Scott Garrabrant (“plaintiff”)

Defendant’s demurrer to the first amended complaint is OVERRULED.

BACKGROUND:

Plaintiff commenced this action on 2/21/14. On 5/1/14, plaintiff filed a first amended complaint against defendant for: (1) disability discrimination; (2) failure to provide reasonable accommodation; (3) failure to engage in interactive process; (4) failure to maintain a discrimination free environment; and (5) retaliation. Plaintiff has been employed by defendant as a Lead Senior Gardner since 2005. (FAC ¶ 5.) Plaintiff alleges that he became disabled following work-related injuries to his back and right knee in August and September 2011. (Id., ¶ 6.) Plaintiff was on leave from 8/3/11 until he was medically released to return to work on 6/13/13. (Id., ¶¶ 7-8.) The release was with restrictions for modified duties, including no lifting over 20 pounds, no prolonged standing or walking, and limited repetitive bending, stooping, or twisting. (Id., ¶ 8.) On 11/8/13, defendant held a purported accommodation meeting which was attended by plaintiff, Theresa Walker (Personnel Analyst), Andrew Ortiz (plaintiff’s union representative), Don Gonser (supervisor), and Brandee Crawley Gross (Sr. Personnel Analyst). (Id., ¶ 9.) A report was issued which essentially stated that defendant would not accommodate plaintiff and he would not be reinstated to an employment position. (Id., ¶ 10.)

ANALYSIS:

Defendant demurs to the first, fourth, and fifth causes of action in the FAC on the ground that they are uncertain and fail to allege sufficient facts.

Uncertainty

Demurrers for uncertainty are strictly construed, because discovery can be used for clarification, and apply where defendants cannot reasonably determine what issues or claims are stated. (Khoury v. Maly’s of Cal., Inc. (1993) 14 Cal.App.4th 612, 616; Weil & Brown, Civ. Pro. Before Trial (The Rutter Group 2013) ¶ 7:85.) “Demurrer for uncertainty will be sustained only where the complaint is so bad that the defendant cannot reasonably respond; i.e., he or she cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him or her.” (Weil & Brown, ¶ 7:85 [citing Khoury, 14 Cal.App.4th at p. 616].)

The allegations in the FAC are not so unclear that defendant cannot reasonably respond. To the extent that defendant wishes to obtain more information as to the subject causes of action, such information may be sought during the discovery process.

First Cause of Action for Disability Discrimination

The elements of a prima facie claim for disability discrimination are: “ ‘(1) plaintiff suffers from a disability; (2) plaintiff is a qualified individual;[fn. omitted] and (3) plaintiff was subjected to an adverse employment action because of the disability.’ ” (Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 254.) A physical disability under the FEHA includes disorders or conditions that affect certain bodily systems and limit a major life activity. (Gov. Code, § 12926(m).)

Plaintiff alleges that he suffered from a disability that caused him to miss work for nearly two years. (See FAC ¶¶ 6-8.) Plaintiff alleges that he was able to return to work with accommodations. (See id., ¶ 8.) Plaintiff describes at great length his disabliity. (See id., ¶ 15(c).) He alleges that defendant subjected him to an adverse action by refusing to reinstate him to employment or accommodate him, and that his disability was a substantial motivating factor in the decision not to reinstate him or accommodate him. (See id., ¶ 15e-f.) These allegations are sufficient to support the first cause of action.

Defendant’s demurrer to the first cause of action is OVERRULED.

Fourth Cause of Action for Failure to Prevent Discrimination

Failure to prevent discrimination or harassment is a separate basis for liability under the FEHA. (See Gov. Code, § 12940, subd. (k).) To support a cause of action for failure to take reasonable steps to prevent discrimination or harassment, plaintiff must prove: (1) he was subjected to unlawful discrimination or harassment; (2) the employer failed to take reasonable steps to prevent the discrimination or harassment; and (3) the employer’s failure was a substantial factor in causing the plaintiff harm. (CACI No. 2527.)

Defendant City argues that this cause of action rises or falls on the First Cause of Action. (See Demurrer, p. 6:27-24.) The Court agrees. However, the Court has found that plaintiff has sufficiently alleged a claim for discrimination. Plaintiff sufficiently alleges the elements of a claim for failure to prevent discrimination. (See FAC ¶ 31.)

Defendant’s demurrer to the fourth cause of action is OVERRULED.

Fifth Cause of Action for Retaliation

To establish a cause of action for retaliation under FEHA, a plaintiff must show: “(1) he or she engaged in a ‘protected activity,’ (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer’s action.” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.) “The causal link may be established by an inference derived from circumstantial evidence, ‘such as the employer’s knowledge that the [employee] engaged in protected activities and the proximity in time between the protected action and allegedly retaliatory employment decision.'” (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 615.)

Plaintiff alleges that he engaged in protected activity by taking medical leave and participating in a purported accommodation meeting. (FAC ¶¶ 7-9, 35a.) Plaintiff alleges he was subjected to an adverse employment action when defendant refused to reinstate him and failed to provide him with another suitable job. (Id., ¶ 35b.) Plaintiff alleges that the protected activity was a substantial motivating reason for the adverse employment action. (Id., ¶ 35c.) These allegations are sufficient to support the retaliation claim.

Defendant’s demurrer to the fifth cause of action is OVERRULED.

Defendant to answer within 10 days.