Smith v. Super. Ct.

Filed 11/21/07 Smith v. Super. Ct. CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

PURPORTED APPEAL from an order of the Superior Court of Los Angeles County, treated as petition for writ of mandate. Maureen Duffy-Lewis, Judge. Petition granted.

Mark Weidmann and Lee Franck for Petitioner.

No appearance for Respondent.

Chassman & Seelig, Mark B. Chassman and Rhonda E. Kaley for Real Parties in Interest Dave Vanderwier and David Gonzalez.

Littler Mendelson, Diane L. Kimberlin and Kara L. Jassy for Real Party in Interest Mrs. Goochs Natural Foods Market, Inc.

_________________________

Plaintiff and appellant Jonathan Smith (Smith) purports to appeal an order sustaining without leave demurrers to his first amended complaint interposed by defendants and respondents Mrs. Goochs Natural Foods Market, Inc. doing business as Whole Foods Market (Whole Foods), Dave Vanderwier (Vanderwier) and David Gonzalez (Gonzalez).^[1]

The essential issue presented in this employment discrimination action is whether the complaint, or any part of it, is well pled.

Based on the allegations of the first amended complaint, as well as the additional proposed allegations presented to this court, we conclude Smith is capable of perfecting all six causes of action in an amended pleading. Therefore, the trial courts order shall be vacated with directions to enter an order granting Smith leave to file a second amended complaint.

FACTUAL AND PROCEDURAL BACKGROUND

After commencing this action on December 29, 2005, Smith filed the operative first amended complaint on April 25, 2006.^[2] The complaint named as defendants Whole Foods and two of its supervisory employees, Vanderwier and Gonzalez, and pled the following six causes of action: (1) race/color discrimination in violation of the California Fair Employment and Housing Act (FEHA) (Gov. Code,  12900 seq.);^[3](2) race/color discrimination in violation of public policy; (3) retaliation for complaints of race/color discrimination and/or harassment in violation of the FEHA; (4) retaliation for complaints of race/color discrimination and/or harassment in violation of public policy; (5) race/color harassment in violation of the FEHA against Whole Foods; and (6) race/color harassment in violation of the FEHA against Gonzalez.^[4]

The two individual defendants, Gonzalez and Vanderwier filed a general demurrer to the first amended complaint (Code Civ. Proc., 430.10, subd. (e)), contending the causes of action against them, namely, the third, fourth and sixth causes of action, failed to allege facts sufficient to constitute a cause of action. The individual defendants asserted no cause of action was stated for retaliation because the complaint failed to allege any facts establishing that either one of them took any adverse employment action against Smith. Further, only an employer is subject to liability for retaliation and no facts were alleged to indicate either individual defendant would qualify as an employer under the FEHA. Also, no facts were pled to demonstrate that Gonzalez engaged in harassment and Gonzalez was not liable for harassment by his subordinates; Smith alleged nothing more than certain comments were made about him and that Gonzalez failed to take any action.^[5]

Unlike the individual defendants, who filed a general demurrer, Whole Foods filed a special demurrer to Smiths complaint. (Code Civ. Proc., 430.10, subd. (f).) Whole Foods contended the five causes of action against it were uncertain, ambiguous and unintelligible and therefore should be dismissed. Whole Foods also argued Smith failed to state facts sufficient to justify his claims for punitive damages.^[6]

On August 29, 2006, the demurrers and motions to strike came on for hearing. The trial court orally ruled as follows: This is, as you noted, a second chance to amend. The first amended complaint contains some facts, but not nearly enough to come close to stating any cause of action. [] Ive already given you the ability to amend, and I dont intend to do it again. [] All demurrers are sustained on grounds of sufficiency. Motion to strike is moot. No leave to amend. [] Were ready on another matter. (Italics added.)

Likewise, the minute order states: Demurrers are SUSTAINED on grounds of sufficiency. (Italics added.)^[7]

Thereafter, the trial court declined to sign a proposed judgment of dismissal, indicating the [m]inute order of 8/29/06 is the controlling order.

Smith filed notice of appeal, purporting to appeal from the August 29, 2006 minute order.

CONTENTIONS

Smith contends: the trial court erred in not finding his complaint to be sufficient because he set forth all the ultimate facts necessary for each cause of action and the ultimate facts are all that is necessary to be pled in a complaint. Further, even assuming the complaint is uncertain, the trial court abused its discretion in denying leave to amend because he is capable of amending the pleading to render the causes of action certain.

DISCUSSION

1. Standard of appellate review.

In determining whether a plaintiff has properly stated a claim for relief, our standard of review is clear: We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed. [Citation.] Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.] When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action. [Citation.] And when it is sustained without leave to amend, we decide whether there is a reasonable possibility that the defect can be cured by amendment . . . . (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126.)

The rules governing the right to amend a defective pleading are settled. Where the defect raised by a motion to strike or by demurrer is reasonably capable of cure, leave to amend is routinely and liberally granted to give the plaintiff a chance to cure the defect in question. [Citations.] A pleading may be stricken only upon terms the court deems proper [citation], that is, terms that are just. [Citations.] It is generally an abuse of discretion to deny leave to amend, because the drastic step of denial of the opportunity to correct the curable defect effectively terminates the pleaders action. [Citation.] Moreover, A showing that the complaint can be amended to state a cause of action need not be made in the trial court so long as it is made to the reviewing court. If there is a reasonable possibility that a plaintiff can amend [his] complaint to cure the defects, leave to amend must be granted. [Citation.] Still, on appeal the plaintiff does bear the burden of proving there is a reasonable possibility the defect in the pleading can be cured by amendment. [Citation.]  . . . Plaintiff must show in what manner [he] can amend [his] complaint and how that amendment will change the legal effect of [his] pleading. . . . [Citation.] [Citation.] (Velez v. Smith (2006) 142 Cal.App.4th 1154, 1174-1175, italics added.)^[8]

We now address the six causes of actions of the first amended complaint, seriatim.^[9]

2. First cause of action: race/color discrimination in violation of the FEHA, against Whole Foods.

a. Elements.

In order to state a discrimination claim under the FEHA, a plaintiff must allege the following elements of a prima facie case: (1) he was a member of a protected class; (2) he was performing competently in the position he held; (3) he suffered an adverse employment action, such as a termination, demotion or denial of an available job; and (4)  some other circumstances suggest discriminatory motive. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 355 (Guz).)

b. Smith is capable of alleging facts sufficient to state a cause of action against Whole Foods for race/color discrimination in violation of the FEHA.

Smith alleged his protected status under the FEHA is [his] race/color, which is ASIAN.

Smith alleged he performed work competently for [Whole Foods]. [He] did not receive discipline, received promotion and was informed by his superiors that he was an excellent employee. In addition, the supplemental letter brief indicates Smith received three promotions while employed by Whole Foods and received good performance evaluations.

With respect to adverse employer action, Smith alleged Whole Foods terminated [him] on approximately April 15, 2005, refused to employ and reinstate [him] after his termination, refused to promote [him] and denied [him] wages and bonuses for the times that he filled in for the store leadership and a promised Thanksgiving bonus.

As for discriminatory motive, the first amended complaint alleged Smiths race/color was a motivating factor in the adverse actions taken by the employer. The supplemental letter brief proffers numerous details relating to the issue of discriminatory motive, to wit:

For one to three times per week from August 2004 through April 15, 2005, Smith was referred to by Gonzalez, his supervisor, as an Asian guy who is not a real man, a Chino a rice eater and slanted eyes. In addition, nearly every day from November of 2003 through April 15, 2005 [Smith] was called 1) slanted eyes; 2) a rice eater; 3) Chino 4) telling [Smith] that he should not eat rice because it makes his penis small and 5) telling [Smith] that he should eat frijoles so [his] penis would not be small by John (a receiver), Dave Mendoza (produce team leader), Moreno (grocery team leader), Jason (dairy specialist) and Jose. Also, in December of 2004, [Smith] is told repeatedly by Jose and Dave Mendoza things like are you sure you can see the menu cause your eyes are so slated [sic], 2) this is a seafood restaurant, they will not serve rice to you, 3) there is no Kimchi (Korean cabbage) on the menu, you are sure you can find something to eat, 4) they do not serve dog here either.

These allegations would be sufficient to suggest[] discriminatory motive. (Guz, supra, 24 Cal.4th at p. 355.)

In sum, the allegations of the first amended complaint, augmented by the proposed allegations set forth in the supplemental letter brief, are sufficient to state facts to constitute a cause of action against Whole Foods for race/color discrimination in violation of the FEHA.

3. Second cause of action: race/color discrimination in violation of public policy, against Whole Foods.

a. Elements.

In order to state a cause of action against an employer for violation of public policy, plaintiff must allege the violation of a public policy which is (1) delineated in either constitutional or statutory provisions; (2) public in the sense that it inures to the benefit of the public rather than serving merely the interests of the individual; (3) well established at the time of the discharge; and (4) substantial and fundamental. (Stevenson v. Superior Court (1997) 16 Cal.4th 880, 901-902.) The FEHAs policy against employment discrimination based on race satisfies these four requirements and therefore serves to support a common law tort claim for violation of public policy. (Id. at pp. 894-897.)^[10]

b. Smith is capable of alleging facts sufficient to state a cause of action against Whole Foods for race/color discrimination in violation of public policy.

It is settled that the FEHAs policy against race discrimination is sufficiently substantial and fundamental to support a tort claim for wrongful discharge in violation of public policy. (Stevenson v. Superior Court, supra, 16 Cal.4th at pp. 894-897.) Therefore, the facts set forth above are sufficient not only to allege a statutory cause of action against Whole Foods for discrimination in violation of the FEHA, but also a common law tort claim against Whole Foods for wrongful discharge in violation of public policy, based on the FEHAs public policy against employment discrimination.

4. Third cause of action: retaliation for complaints of race/color discrimination and/or harassment in violation of the FEHA, against Whole Foods and the two individual defendants.

a. Elements.

In order to state a claim for retaliation under the FEHA, a plaintiff must allege (1) he engaged in a protected activity; (2) the employer subjected him to an adverse employment action; and (3) a causal link exists between the protected activity and the employers action. (Flait v. North American Watch Corp. (1992) 3 Cal.App.4th 467, 476.)

b. Smith is capable of alleging facts sufficient to state a cause of action against Whole Foods for retaliation under the FEHA.

The supplemental letter brief sets forth at least six instances in which Smith engaged in protected activity by complaining of race/color discrimination and harassment. Smith made the complaints to various individuals at Whole Foods, including his supervisors, Vanderwier and Gonzalez, as well as to Claudia Rodriguez, a store human resources representative, Robin Graf, of regional human resources, and Beth Jackson, also of human resources.

With respect to adverse employer action, Smith alleged Whole Foods terminated him on approximately April 15, 2005, refused to employ and reinstate him after his termination, refused to promote him and denied him wages and bonuses for the times that he filled in for the store leadership and a promised Thanksgiving bonus.

As for a causal link between the protected activity and the employers adverse action, the supplemental letter brief states, inter alia, the failure to promote came within a few days of Smiths complaint of race harassment to Gonzalez in December of 2004, and the termination came within a few days of Smiths complaint to Gonzalez and Vanderwier in early April of 2005.

Based thereon, we conclude Smith is capable of alleging facts sufficient to state a cause of action against Whole Foods for retaliation under the FEHA.

c. Smith is also capable of stating a cause of action against the individual defendants for retaliation under the FEHA.

Likewise, in view of the above allegations, we conclude Smith is capable of stating a cause of action against his former supervisors, Gonzalez and Vanderwier, for retaliation under the FEHA.

We reject the argument of Gonzalez and Vanderwier, made in the lower court, that supervisors cannot be held liable for retaliation under the FEHA. Reno v. Baird (1998) 18 Cal.4th 640 (Reno), on which they relied, in inapposite because it relates to discrimination claims, not to retaliation claims.

Reno held an individual supervisor may not be sued for discrimination under the FEHA, or for wrongful discharge in violation of public policy. (Reno, supra, 18 Cal.4th at pp. 644-645, 663-664.) Reno explained: Although the FEHA prohibits harassment as well as discrimination, it treats them differently. It prohibits an employer . . . or any other person from harassing an employee. ( 12940, subd. (h)(1), italics added.)  . . . The FEHA, however, prohibits only an employer from engaging in improper discrimination. ( 12940, subd. (a).) (Id. at p. 644, italics ours.) Based on the differing language, Reno held an individual supervisor may not be sued for discrimination under the FEHA, even though an individual supervisor may be sued for harassment.

In the instant case, in the third cause of action, we are presented with a claim against the individual defendants for retaliation, as contrasted with discrimination or harassment. The retaliation provision of the FEHA applies to any employer, labor organization, employment agency, or person . . . . ( 12940, subd. (h).)^[11] Based on the language of the FEHAs retaliation provision, an individual supervisor may be held personally liable for retaliation against an employee in violation of the FEHA. (Walrath v. Sprinkel (2002) 99 Cal.App.4th 1237, 1242.) Because of this difference in the statutory language, Reno does not apply to retaliation claims. (Ibid.)

Accordingly, Vanderwier and Gonzalezs status as supervisors does not immunize them from liability for retaliation under the FEHA.

5. Fourth cause of action: retaliation for complaints of race/color discrimination and/or harassment in violation of public policy.

It is settled that the FEHAs policy against race discrimination is sufficiently substantial and fundamental to support a tort claim for wrongful discharge in violation of public policy. (Stevenson v. Superior Court, supra, 16 Cal.4th at pp. 894-897.) The FEHA also reflects a public policy prohibiting retaliation against an employee for opposing discriminatory practices. ( 12940, subd. (h).)

Therefore, the facts set forth above would be sufficient not only to allege a statutory cause of action for retaliation in violation of the FEHA, but also a common law tort claim against Whole Foods as well as the individual defendants for retaliatory discipline and discharge in violation of public policy, based on the FEHAs public policy against retaliation for complaining of employment discrimination. (Compare Reno, supra, 18 Cal.4th at p. 664 [because plaintiff could not sue an individual supervisor under FEHA for discrimination, plaintiff also was precluding from suing individual supervisor in tort for wrongful discharge in violation of FEHAs public policy].)

6. Fifth cause of action: race/color harassment in violation of the FEHA, against Whole Foods.

a. Elements.

In order to state a cause of action for harassment based on race/color under the FEHA, a plaintiff must allege: (1) he was subjected to unwelcome conduct or comments; (2) the harassment complained of was based on race/color; and (3) the harassment was so severe and pervasive as to alter the conditions of employment and create an abusive working environment. (Etter v. Veriflo Corp. (1998) 67 Cal.App.4th 457, 463-465.)

b. Smith is capable of alleging facts sufficient to state a cause of action against Whole Foods for harassment in violation of the FEHA.

As set forth above, Smiths letter brief has set forth in detail the verbal harassment to which he was subjected on an ongoing basis.

Further, based on the nature of the comments, e.g., slanted eyes, Chino and rice eater, it is self evident the harassment was based, at least in part, on Smiths race or color.

Smith further pled the harassment was sufficiently severe and pervasive so as to alter the conditions of employment and create a hostile and abusive working environment.

Whole Foods argues Smiths allegations do not demonstrate sufficiently severe and pervasive conduct to meet the legal threshold. We reject Whole Foodss attempt to trivialize Smiths allegations. It cannot be said as a matter of law that Smith has alleged nothing more than the ordinary tribulations of the workplace, or that he was subjected to nothing more than sporadic use of abusive language and occasional teasing. (Etter v. Veriflo Corp., supra, 67 Cal.App.4th at p. 464.)

We conclude Smith is capable of stating a cause of action against Whole Foods for harassment under the FEHA.

7. Sixth cause of action: race/color harassment in violation of the FEHA against Gonzalez.

As noted, a supervisor may be held personally liable for harassment under the FEHA. (Reno, supra, 18 Cal.4th at p. 644.)

Smiths letter brief sets forth the following proposed allegations with respect to Gonzalez: For one to three times per week from August 2004 through April 15, 2005, Smith was referred to by Gonzalez, his supervisor, as an Asian guy who is not a real man, a Chino a rice eater and slanted eyes.

Based on the above, Smith is capable of stating a cause of action against Gonzalez for harassment in violation of the FEHA. (Etter v. Veriflo Corp., supra, 67 Cal.App.4th at pp. 463-465.)^[12]

DISPOSITION

The petition for writ of mandate is granted. Let a peremptory writ of mandate issue directing respondent superior court to vacate its order sustaining the demurrers to the first amended complaint without leave to amend and to enter a new order granting Smith leave to file a second amended complaint. Smith shall recover his costs in this proceeding. (Cal. Rules of Court, rule 8.490(m).)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KLEIN, P. J.

We concur:

CROSKEY, J.

KITCHING, J.

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^[1] As a matter of appellate procedure, an order sustaining a demurrer without leave to amend is not an appealable order. (9 Witkin, Cal. Procedure (4th ed. 1997) Appeal,  113(b), p. 178.) The appeal should be taken from the subsequent final judgment of dismissal. (Id. 119(a), p. 183.) The instant appeal has not been perfected because the trial court failed to enter a judgment of dismissal in this case. However, dismissal of the appeal would be unnecessarily dilatory and circuitous because Smith could promptly file a new notice of appeal upon obtaining a formal judgment or order of dismissal. Under these circumstances, and because this matter already has been fully briefed, we exercise our discretion to deem the purported appeal a petition for writ of mandate so as to resolve the matter on the merits in an expeditious manner. (Id. 88, pp. 147-149.)

^[2] With respect to the dates of employment, Smiths letter brief contains an obvious clerical error. It repeatedly states Smith worked for Whole Foods starting on August 7, 2007 and continuing until his termination on April 15, 2005.

^[3] All statutory references are to the Government Code, unless otherwise specified.

^[4] The pertinent allegations will be set forth in the Discussion section of this opinion.

^[5] The individual defendants also filed a motion to strike portions of the first amended complaint, on the ground Smith failed to allege facts sufficient to hold them liable for punitive damages.

^[6] Whole Foods also filed a motion to strike, directed at Smiths punitive damages allegations.

^[7] We note that although the trial court sustained both demurrers on grounds of sufficiency, only the individual defendants demurred on the grounds the pleading failed to state facts sufficient to constitute a cause of action. (Code Civ. Proc., 430.10, subd. (e).) Whole Foodss demurrer was based on the ground of uncertainty. (Code Civ. Proc., 430.10, subd. (f).)

^[8] Because a showing that the complaint can be amended to state a cause of action may be made to the reviewing court, on September 27, 2007, this court sent the parties a letter stating: Assuming arguendo the first amended complaint is not well pled, appellant is directed to advise this court by letter brief in what manner plaintiff can amend his complaint and how that amendment will change the legal effect of his pleading. (See Velez v. Smith (2006) 142 Cal.App.4th 1154, 1175.) The briefing should separately address each cause of action and the alleged liability of each defendant. In response, Smith filed a letter brief and Whole Foods and the individual defendants filed responses thereto.

^[9] Unless otherwise specified, the allegations are drawn from Smiths first amended complaint. Whenever proposed allegations are drawn from Smiths supplemental letter brief of October 11, 2007, that source will be duly noted.

In their supplemental letter briefs, respondents contend the proposed allegations set forth in Smiths letter brief contradict, or are inconsistent with, Smiths earlier pleadings because Smith did not make these allegations previously. This argument is without merit. Merely because Smiths letter brief alleges new matter does not show the new allegations are inconsistent with the earlier pleadings.

^[10] Adverse employer action short of termination may give rise to a common law claim for violation of public policy. Garcia v. Rockwell Internat. Corp. (1986) 187 Cal.App.3d 1556 (disapproved on another point in Gantt v. Sentry Insurance (1992) 1 Cal.4th 1083, 1095-1096), extended Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167 (which recognized a tort cause of action for wrongful discharge in contravention of public policy) to a claim of retaliatory disciplinary action falling short of an actual discharge. Garcia explained, we see no reason why the rationale of Tameny should not be applicable in a case where an employee is wrongfully (tortiously) disciplined and suffers damage as a result (Garcia, supra, at p. 1561), even though the ultimate sanction of discharge has not been imposed. (Id. at p. 1562.)

^[11] Section 12940, subdivision (h), makes it an unlawful employment practice For any employer, labor organization, employment agency, or person to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part. (Italics added.)

^[12] We trust Smith will amend his complaint in accordance with the allegations proffered in his letter brief and that he will address any and all deficiencies pointed out by respondents, including the correct name of the corporate defendant. We express no opinion as to the merits of Smiths claims or as to the sufficiency of the amended pleading which he will file on remand and defendants are not precluded from filing any appropriate challenges to that pleading.