Malloy v. Superior Court of L. A. Cnty.

• Docket Number: B318588
• Decision Date: 19 September 2022
• Citation: 83 Cal.App.5th 543,299 Cal.Rptr.3d 602
• Parties: Eleanor MALLOY, Petitioner, v. The SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; Comprehensive Print Group LLC et al., Real Parties in Interest.
• Court: California Court of Appeals Court of Appeals

83 Cal.App.5th 543

299 Cal.Rptr.3d 602

Eleanor MALLOY, Petitioner,

v. The SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent;Comprehensive Print Group LLC et al., Real Parties in Interest.

B318588

Court of Appeal, Second District, Division 7, California.

Filed September 19, 2022

King & Siegel, Julian Burns King, Los Angeles, and Margaret R. Wright for Petitioner.

Fisher & Phillips, Kyley S. Chelwick, Irvine, and Megan E. Walker, San Diego, for Real Party in Interest Stanley Spencer.

Jackson Lewis, Ellen E. Cohen, Los Angeles, Dylan B. Carp, San Francisco, and JaVon A. Payton, Irvine, for Real Party in Interest American Pacific Printers College, Inc.

Oz Law Group, Inc. and Greg Ozhekim, Encino, for Real Party in Interest Comprehensive Print Group LLC.

PERLUSS, P. J.

California's Fair Employment and Housing Act (FEHA) ( Gov. Code, § 12900 et seq. ),¹ enacted in 1980, establishes a comprehensive framework to safeguard the right of all individuals to seek, obtain and hold employment free from discrimination. (§ 12920; Brown v. Superior Court (1984) 37 Cal.3d 477, 485, 208 Cal.Rptr. 724, 691 P.2d 272 ( Brown ); Hirst v. City of Oceanside (2015) 236 Cal.App.4th 774, 782, 187 Cal.Rptr.3d 119.) As one means of furthering FEHA's express purpose to provide effective remedies for discriminatory practices, a special venue provision allows plaintiffs to file a lawsuit "in any county in the state in which the unlawful practice is alleged to have been committed, in the county in which the records relevant to the practice are maintained and administered, or in the county in which the aggrieved person would have worked ... but for the unlawful practice." (§ 12965, subd. (c)(3);² see Brown , at p. 486, 208 Cal.Rptr. 724, 691 P.2d 272 ["[T]he costs of litigation pose a formidable barrier to the filing and prosecution of a FEHA action. The Legislature recognized this barrier and sought to alleviate it by providing those persons [victims of employment discrimination] with a wide choice of venue"].)³

Today, more than four decades after the original passage of FEHA, as a result of advances in technology and the impact of the COVID-19 pandemic, working remotely is no longer an infrequently conferred perquisite, but an increasingly common and necessary adaptation to the demands of modern life.⁴ What does this increase in remote work mean for the ability of victims of employment discrimination to utilize the liberal FEHA venue statute? In particular, in the matter now before us, may Eleanor Malloy bring her lawsuit for pregnancy discrimination, interference and retaliation in Los Angeles County, where she had been working remotely before being fired, or did the allegedly unlawful practices—terminating her employment while on protected pregnancy leave—occur only at her employer's office in Orange County, which must also be deemed the location where Malloy would have worked but for the unlawful practices?

Respondent Los Angeles Superior Court, in a terse order, granted Malloy's employers’ motion for change of venue, concluding venue was proper only in Orange County. We disagree, grant Malloy's petition for writ of mandate and order respondent superior court to vacate its order granting the motion for change of venue and to enter a new order denying the motion, permitting Malloy's case to proceed in Los Angeles County.

FACTUAL AND PROCEDURAL BACKGROUND

1. Malloy's Complaint

On August 12, 2021 Malloy filed a verified complaint against Comprehensive Print Group LLC and its subsidiary American Pacific Printers College, Inc.⁵ for pregnancy and gender discrimination (§ 12940, subd. (a)) and sex- and gender-based harassment (§ 12940, subd. (j)(1)) in violation of FEHA; interference with her leave rights and retaliation for attempting to exercise those rights under the Pregnancy Disability Leave Law (PDLL) (§ 12945) and the California Family Rights Act (CFRA) (§ 12945.2); failure to prevent harassment, discrimination and retaliation in violation of FEHA (§ 12940, subd. (k)); and wrongful termination in violation of public policy. Stanley Spencer, the chief executive officer of Comprehensive Print Group, was named a defendant in the cause of action for sex- and gender-based harassment.⁶

Malloy alleged she was hired as an assistant to Spencer in October 2018 after meeting him while working for a pet-sitting company. The scope of Malloy's work quickly expanded to handling client meetings and accounts independently. According to Malloy, during her first 18 months at the company, Spencer routinely made offensive comments to and about her, including denigrating her because of her gender, expressing an inappropriate interest in her personal life and suggesting they could become a couple.

As pertinent to the venue issue,⁷ Malloy alleged she and other employees of the companies began working remotely on March 17, 2020 due to the COVID-19 pandemic. In mid-September 2020 Malloy informed Spencer by telephone that she was pregnant. "Spencer congratulated her and volunteered that she would be able to work from home both during and after her pregnancy in light of health concerns posed by the COVID-19 pandemic."

On March 3, 2021, while 37 weeks pregnant, Malloy was diagnosed with sudden-onset gestational hypertension

and preeclampsia, was advised to seek emergency medical treatment and was placed off work by her doctor. That day Malloy emailed Spencer and a company payroll representative, attaching the note from her physician authorizing her leave from work from March 3, 2021 to May 9, 2021. Spencer responded, "Thanks." Malloy also telephoned Spencer on March 3, 2021 and left a voicemail message explaining she wanted to discuss her right to a leave. The call was not returned.

Malloy gave birth to her son on March 14, 2021. In early April Malloy inquired about adding her son to the company's insurance plan and told Spencer she was off work and planned to return on May 10, 2021. On April 7, 2021 Spencer left a voicemail message responding to the insurance matter and indicating he wanted to speak to Malloy "about what your availability will be, once you come back to work" because "we've got some structural changes going on."

On April 12, 2021 Spencer telephoned Malloy and asked if she had heard his voicemail regarding working in person two-to-three times per week. Malloy replied, if required to return to work in May, she could not work in person for childcare reasons for at least one month. Spencer demanded Malloy immediately return to work in person, asserting he "really needed someone in the office ." The following day in a telephone call Spencer fired Malloy because she had refused to return to work at the office in person. Malloy alleged Spencer "further explained [that] employing her was ‘not going to work ’ for him because she was making it ‘inconvenient ’ for him to run his business." The letter of termination Malloy received with her final payment listed her separation date as March 3, 2021.

2. The Motion for Change of Venue

On November 9, 2021, together with his answer to Malloy's complaint, Spencer moved for a change of venue to Orange County, contending Los Angeles County was an improper venue under both FEHA and the Code of Civil Procedure. As to Malloy's statutory claims, Spencer argued the unlawful practices alleged by Malloy were committed in Orange County; all records relating to her lawsuit were maintained in Orange County; and Malloy's employment was based in Orange County, where she would have continued to work "but for her separation of employment." For purposes of Malloy's common law claim for wrongful termination (a claim as to which Spencer was not named a defendant), Spencer argued only Orange County was a proper venue because Comprehensive Print Group's and American Pacific Printers's principal places of business were in Orange County and Spencer resided in Orange County. Finally, citing Code of Civil Procedure section 397, subdivision (c), Spencer alternatively urged the court to exercise its discretion to order a change of venue to Orange County based on the convenience of witnesses and to promote the ends of justice.

In a declaration in support of the motion for change of venue, Spencer stated Malloy had worked for American Pacific Printers, where he had been vice president for sales, from October 1, 2018 to December 31, 2020, and for Comprehensive Print Group from January 1, 2021 until termination of her employment. Spencer declared that Malloy "worked primarily in [the companies’] offices, which were located in Orange County." He also explained, "During the COVID-19 pandemic some staff members, such as Plaintiff, worked remotely; however, both [companies] remained open and active in Orange County throughout the pandemic." American Pacific Printers and Comprehensive Print Group joined in Spencer's motion.

Malloy filed an opposition, arguing Los Angeles County was the proper venue for her FEHA pregnancy discrimination, interference and retaliation causes of action because the unlawful employment practices occurred in Los Angeles while she was working from home or on protected pregnancy disability leave, and she would have continued working in Los Angeles at least until June 10, 2021 if not for the FEHA violations (including her wrongful termination). The opposition also explained under Brown , supra , 37 Cal.3d 477, 208 Cal.Rptr. 724, 691 P.2d 272, the FEHA venue statute controlled in a "mixed" lawsuit when causes of action under FEHA were brought along with non-FEHA causes of action that arose from the same facts.

Malloy submitted her declaration with the opposition papers, stating she started working remotely from her home on March 17, 2020; "[o]ther than one occasion in which I went in to the office in mid-2020, I continued to work for Defendants exclusively from my home from March 17, 2020 until my termination on April 13, 2021"; she was at home when Spencer notified her she was being fired and received the paperwork memorializing her...