Tentative Ruling
Re: ????????????????? ??????????? Mewa Padda v. Blue Eagle Contracting, Inc.?
??????????????????????????????????? Superior Court No. 17CECG00034
Hearing Date: ?????????? Wednesday January 24, 2018 (Dept. 501)
Motion: ????????? ??????????? Defendants? Motion for Judgment on the Pleadings
Tentative Ruling:
Request for Judicial Notice of Plaintiff?s November l4, 2016 letter to the California Labor & Workforce Development is denied.
Defendant?s Motion for Judgement on the Pleadings is denied in its entirety.
Explanation:
A motion for judgment on the pleadings is decided on the same basis as a general demurrer and should be granted where the Court lacks jurisdiction or where the complaint on its face fails to state a cause of action. (Code Civ. Proc., ?438; Bach v. McNelis (1989) 207 Cal.App.3d 852, 865; see also People v. $20,000 Currency (1991) 235
Cal.App.3d 682, 691 [JOP is functional equivalent of demurrer, and same rules apply].) As with a demurrer, a motion for judgment on the pleadings is confined to the face of the pleading or upon facts which are subject to judicial notice, and all facts alleged in the complaint must be accepted as true. (Code Civ. Proc., ? 438, subd. (d); Rangel v. Interinsurance Exchange (1992) 4 Cal.4th 1, 7.) The motion must be denied ?where there are material factual issues that require evidentiary resolution.? (Schabarum v. California Legislature (1998) 60 Cal. App. 4th 1205, 1216.)
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Judicial Notice
Evidence Code section 452, subdivision (d) allows a court to take judicial notice of the records in the pending action, or in any other action pending in the same court or any other court of record in the U.S. (Evid. Code ? 452(d).)
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Evidence Code section 452, subdivision (h) allows a court to take judicial notice of facts not reasonably subject to dispute and ?capable of immediate and accurate verification by resort to sources of reasonably indisputable accuracy.? (Evid. Code ? 452(h).) Subdivision (h) has been interpreted to include the undisputed facts within (and effect of) legally operative documents. (Scott v. JP Morgan Chase Bank, NA. (2013) 214 Cal.App.4th 743, 754.)
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Here, Defendants request This Court take judicial notice of: (1) Plaintiff?s November l4,
2016 letter to the California Labor & Workforce Development; and (2, 3) Plaintiff?s
Original and Second Amended Complaints. Regarding request (1), Defendants cite to
Subdivision (h) and Scott, supra for support (Defendants also cite to Sinohui v. CEC Entertainment, Inc. (C.D. Cal., June 14, 2016, No. EDCV142516JLSKKX) 2016 WL 3406383, an unpublished federal case, which is not binding authority). But a letter is not a legally operative document. A legally operative document is one which, by its existence, creates or destroys a legal relationship that is in dispute. (e.g. deed, divorce decree, will, written contract.) Request (1) is denied.
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PAGA
Motions must be supported by memoranda containing statements of facts, law, evidence, and arguments. (Quantum Cooking Concepts v. LV Associates, Inc. (2011) 197 Cal.App.4th 927, 933-934, citing California Rules of Court, rule 3.1113.)
Here, Defendants argue that Plaintiff?s failure to exhaust prevents him from pursing PAGA remedies. But Defendants rely on federal precedent and judicial notice of Plaintiff?s November l4, 2016 letter to the California Labor & Workforce Development. (see Memo, filed; 12/29/17 pp 3-7 [?A].) Defendants? arguments are therefore unavailing first and foremost because a state court is not bound by the decisions of a federal appeals court on questions of state law. (Donley v. Davi (2009) 180 Cal. App.4th
447; Myers Building Industries, Ltd. v. Interface Technology, Inc. (1993) 13 Cal.App.4th
949; see also General Electric Co. v. State of Cal. ex rel. Dept. Pub. Wks. (1973) 32
Cal.App.3d 918.) Nonetheless, since This Court declines to take judicial notice of
Plaintiff?s November l4, 2016 letter, it cannot now be used as a basis for supporting Defendants? argument. This leaves This Court in the same situation as Quantum Cooking Concepts.
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COA 8 ? Disparate Impact
Exhaustion of remedies requires an aggrieved party to have articulated facts similar to those now alleged in his or her complaint. (Willis v. Superior Court (2011) 195 Cal.App.4th 143, 153 ?the employee must file an administrative complaint with DFEH identifying the conduct alleged to violate FEHA.?) Nonetheless, a cause of action for disparate impact is one wherein, ?the plaintiff alleges and proves, usually through statistical disparities, that facially neutral employment practices adopted without a deliberately discriminatory motive nevertheless have such significant adverse effects on protected groups that they are ?in operation functionally equivalent to intentional discrimination.? (Jumaane v. City of Los Angeles (2015) 241 Cal.App.4th 1390, 1405.)
Here, Defendants make two arguments. First Defendants argue that because Plaintiff?s DFEH complaint did not explicitly contain a ?disparate impact? claim that he failed to exhaust administrative remedies. And second, Defendants argue that Plaintiff?s Complaint fails to allege adequate supporting facts nonetheless. However, precedent such as Willis does not require Plaintiff to have specially alleged his claims in legal jargon, only ?the conduct alleged to violate the FEHA.? (Willis, supra, 195 Cal.App.4th at 153.) And here Plaintiff meets the pleading requirement both in his initial DFEH
Complaint as well as in his Second Amended Complaint. In his DFEH Complaint, Plaintiff alleges that he was denied vacation requests and extra-runs due to his ethnicity and religious affiliation. (SAC, Ex. 1.) And in his Second Amended Complaint, Plaintiff alleges that though Defendant Blue Eagle had a facially neutral policy of allowing supervisors to determine who was to take extra runs and to decide time-off requests, the policy had a disparate impact because the selection procedure was discriminatory against employees that were Indian, Middle- Eastern, or to those people that appeared to be Indian or Middle-Eastern or Muslim. (SAC, ?? 131-137.)
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COAs 10, 11, 16 ? Hostile Work Environment
?In order to bring a civil lawsuit under the FEHA, the defendants must have been named in the caption or body of the DFEH charge.? (Cole v. Antelope Valley Union (1996) 47 Cal.App.4th 1505, 1515 emphasis added.) Nonetheless, a cause of action for hostile work environment requires the Plaintiff to prove that: (1) the employee was subject to verbal or physical conduct based on a protected characteristic; (2) that said conduct was sufficiently severe or pervasive; and (3) resulting in an abusive working environment. (Miller v. Department of Corrections (2005) 36 Cal.4th 446, 462.) But, ?[H]arassment consists of a type of conduct not necessary for performance of a supervisory job. Instead, harassment consists of conduct outside the scope of necessary job performance, conduct presumably engaged in for personal gratification, because of meanness or bigotry, or for other personal motives. Harassment is not conduct of a type necessary for management of the employer’s business or performance of the supervisory employee’s job.? (Jumaane, supra, 241 Cal.App.4th at 1407 citing Reno v. Baird (1998) 18 Cal. 4th 640, 645?646.)
Here, Defendants again make two arguments. First, Defendants argue that because
Defendants Rivera and Gordy are not explicitly named as Defendants in the EEOC Complaint, Plaintiff has failed to exhaust. And second, Defendants argue that Reno, supra nonetheless shields their actions because they were of a type necessary for the management of operations. However, both of Defendants? arguments are unavailing. Defendants? first argument ignores precedent that allows Defendants to have been named in the body of the Complaint, as well as in the caption. (Cole, supra, 47 Cal.App.4th at 1515.) And here, both Defendant Rivera as well as Defendant Gordy are clearly named in the body. (see SAC, Ex. 1.) And Defendants? second argument ignores allegations made by Plaintiff that he was continually, explicitly harassed by his coworkers (including Defendant Gordy) based upon his ethnicity and religious beliefs (see SAC, ?? 76-83). It also ignores Plaintiff?s allegations that while Defendants Gordy and Rivera may not have always been the aggressors, they allowed it. (Id. at ?? 80-81.)
COA 12 ? Gov?t Code ? 12940, subd. (k)
?It is an unlawful employment practice, unless based upon a bona fide occupational qualification, or, except where based upon applicable security regulations established by the United States or the State of California . . . For an employer, labor organization, employment agency, apprenticeship training program, or any training program leading to employment, to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring.? (Gov?t Code ? 12940, subd. (k).) But, there is no stand-alone, private cause of action under Government Code section 12940, subdivision (k). (Cal. Code Regs. Tit. 2, ? 11023, subd. (a)(2).) In order for a private claimant to establish an actionable claim under Government Code section 12940, subdivision (k), the private claimant must also plead and prevail on the underlying claim of discrimination, harassment, or retaliation. (Ibid.)
Here, Defendants argue based upon the first sentence of Section 11023 subdivision (a)(2), but in so doing, they fail to acknowledge the second sentence which allows a private cause of action as long as it is plead with an underlying claim of discrimination, harassment, or retaliation. Nonetheless, Plaintiff has clearly alleged qualifying underlying claims. (see e.g. SAC, causes of action 8, 9.)
COA 13 ? Intentional Infliction of Emotional Distress
To avoid demurrer, a plaintiff must allege conduct so extreme as to be beyond all bounds of decency tolerated by society. (Hughes v. Pair (2009) 46 Cal.4th 1035, 10501051; Yau v. Santa Margarita Ford, Inc. (2014) 229 Cal.App.4th 144, 160-161.) In an employer and employee context, a supervisor shouting racial epithets and firing an employee in front of coworkers has been held sufficient (Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 498-499), whereas mere indignities, insults, threats, annoyances, petty oppressions and the like are not enough. (Hughes, supra, 46 Cal.4th at 1051.) But, a judge may not resolve questions of fact on demurrer unless there is only one legitimate inference to be drawn from the allegations of the complaint. (TracFone Wireless, Inc. v County of Los Angeles (2008) 163 Cal.App.4th 1359, 1368.)
Here, Defendants argue that Plaintiff?s allegations are insufficient to support a cause of action for IIED because (as they imply) Plaintiff alleges only that his hours were cut, vandalism, vacation request denials, and discipline. (Memo, filed: 12/29/17 p 10, ?E.) However, Defendants? argument is selective, in that it fails to acknowledge that Plaintiff also alleges that he was continually harassed by his co-workers (including Defendant Gordy) based upon his ethnicity and religious beliefs (see SAC, ?? 76-83). And that while Defendants Gordy and Rivera may not have always been the aggressors, they allowed it. (Id. at ?? 80-81.) Defendants also ignore that Plaintiff alleges that partly because of his complaints and partly because the policies were discriminatory, his hours were cut, he was denied time-off requests, and his actions were severely criticized. For example, he alleges to have been berated by Defendant Rivera for being five minutes tardy (while others were not). (Id. at ?? 76-83.) Accordingly, This Court will not resolve the issue on demurrer, as it ? at the very least ? presents a question of fact (arguably qualifying under Alcorn, supra, 2 Cal.3d at 498-499), from which more than one legitimate inference can be drawn. (TracFone Wireless, supra, 163 Cal.App.4th at 1368.)
Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Procedure section 1019.5, subdivision (a), no further written order is necessary.? The minute order adopting this tentative ruling will serve as the order of the court and service by the clerk will constitute notice of the order.
Tentative Ruling
Issued by: ???????????MWS?????????????? on 01/23/18? (Judge?s initials) (Date)