Rope v. Auto-Chlor Sys. of Wash., Inc.

• Citation: 220 Cal.App.4th 635,163 Cal.Rptr.3d 392
• Decision Date: 29 January 2014
• Docket Number: B242003
• Court: California Court of Appeals
• Parties: Scott ROPE, Plaintiff and Appellant, v. AUTO–CHLOR SYSTEM OF WASHINGTON, INC., Defendant and Respondent.

220 Cal.App.4th 635

163 Cal.Rptr.3d 392

Scott ROPE, Plaintiff and Appellant,

v.AUTO–CHLOR SYSTEM OF WASHINGTON, INC., Defendant and Respondent.

B242003

Court of Appeal,

Second District, Division 1, California.

Filed October 16, 2013

Review Denied January 29, 2014

See 3 Witkin, Summary of Cal. Law (10th ed. 2005) Agency and Employment, § 421.

APPEAL from a judgment of the Superior Court of Los Angeles County, Holly E. Kendig, Judge. Affirmed in part and reversed in part with directions. (Super. Ct. No. BC467045)

Kesluk & Silverstein, Douglas N. Silverstein and Lauren J. Morrison, for Plaintiff and Appellant.

Horowitz & Clayton, Craig A. Horowitz and Wayne D. Clayton for Defendant and Respondent.

JOHNSON, J.

When he was hired in September 2010, plaintiff Scott Rope informed his employer, defendant Auto–Chlor System of Washington, Inc. (Auto–Chlor) he planned in February 2011 to donate a kidney to his physically disabled sister, and requested that he be given leave to do so. Rope later requested that the leave be extended and paid under the then-newly enacted Michelle Maykin Memorial Donation Protection Act (DPA), Labor Code sections 1508–1513, which would become effective January 1, 2011. Rope was fired two days before the DPA became effective. He sued his former employer for violation of the DPA and other provisions of the Labor Code, violation of the Fair Employment and Housing Act, Government Code section 12940 et seq. (FEHA), and wrongful termination in violation of public policy.

Rope appeals from the judgment of dismissal entered after the trial court sustained general demurrers to his first and second amended complaints without leave to amend. (Code Civ. Proc., § 430.10, subd. (e).) We conclude that Rope has pleaded facts sufficient to support a claim for association-based disability discrimination and failure to maintain a discrimination free workplace in violation of FEHA, and a common law claim for wrongful termination in violation of public policy. We also conclude that the trial court properly sustained without leave to amend demurrers to Rope's claims for violations of the DPA, violations of the Labor Code, and for direct or perceived disability discrimination under FEHA. Accordingly, we affirm in part and reverse in part the judgment of dismissal and remand for further proceedings.

FACTUAL ALLEGATIONS

Our factual recitation is drawn from the allegations in Rope's first and second amended complaints. For purposes of review, we assume the truth of all allegations.

On September 7, 2010, Rope was hired by Auto–Chlor as a branch manager. At the time he was hired Rope informed Auto–Chlor that he was scheduled to be an organ donor in February 2011 for his sister who had suffered kidney failure and required a kidney transplant.

From October through December 2010, Rope informed Auto–Chlor's human resources department and managers that he would need to take leave to recover after he donated a kidney to his sister. During his employment, Auto–Chlor was aware Rope's plan to donate a kidney remained unchanged because Rope attended regular doctor's visits during lunch breaks to monitor his blood pressure and general health in preparation for the donation.

In November 2010, Rope became aware that the DPA would go into effect on January 1, 2011. Under the DPA, certain private sector employees are entitled to 30 days of paid leave for organ donation.¹ Rope requested 30 days paid leave for the organ donation he planned to make in February 2011, as his doctor had informed him he would likely need that amount of time to recover from the planned major surgery and organ loss.

Rope spoke with Auto–Chlor's regional manager Michael Pruss, and requested that he be permitted to take 30 days of paid leave for the organ donation, and explained the leave was a medical necessity in order for him to recover from surgery. Rope explained to Pruss that the DPA provided for the 30 days paid leave he required. Pruss promised to “look into it.” Rope repeatedly requested that Auto–Chlor respond to his request for 30 days paid DPA leave; his requests were ignored. Rope complained to Auto–Chlor's management that he had a statutory right to take paid leave which no one had approved.

Rope also informed Auto–Chlor that, depending on how well the surgery and recovery went, he might need additional accommodations upon his return including more leave, and promised to inform Auto–Chlor once his doctor decided what additional accommodations, if any, he required. In November 2010, Auto–Chlor's Human Resources department told Rope he could take an unspecified amount of unpaid leave. Auto–Chlor did not respond to Rope's requests for paid leave.

From September to December 2010, Rope received satisfactory performance reviews and posed no disciplinary problems. On December 30, 2010, two days before the DPA became effective, Rope's employment was terminated purportedly for poor performance. Rope claims the real reason he was fired was Auto–Chlor's desire to avoid providing him paid leave or to accommodate his anticipated work restrictions. Auto–Chlor knew Rope was associated with his sister, a person with a physical disability and also perceived Rope as a person with a disability because he would need time off work to recover from the transplant operation and would thereafter return to work with restrictions. Rope donated a kidney to his sister as planned in February 2011.

PROCEDURAL HISTORY

In August 2011, Rope initiated this action alleging various Labor Code violations and wrongful termination in violation of public policy. Auto–Chlor demurred. Rope filed a first amended complaint (FAC) in lieu of an opposition to Auto–Chlor's demurrer.

The FAC alleged causes of action for: (1) violation of the DPA; (2) retaliation for Rope's participation in a protected activity in violation of Labor Code section 1102.5 (section 1102.5); (3) wrongful termination in violation of public policy; (4) violation of the Private Attorneys General Act of 2004 (PAGA), Labor Code section 2699 et seq.; (5) associational discrimination in violation of FEHA, Government Code sections 12940, subdivision (a), 12926, subdivision (m) [now (n) ]; (6) failure to maintain a discrimination free environment in violation of FEHA, Government Code section 12940, subdivision (k); and (7) retaliation in violation of FEHA, Government Code section 12940, subdivision (h).

Auto–Chlor filed a general demurrer to the FAC. The trial court sustained with leave to amend Auto–Chlor's demurrer to the causes of action for wrongful termination in violation of public policy, and FEHA claims for associational discrimination and failure to maintain an environment free of discrimination (the third, fifth and sixth causes of action respectively). The court sustained the demurrer without leave to amend as to the causes of action for violation of the DPA, retaliation for participation in a protected activity, violation of PAGA and retaliation in violation of FEHA (the first, second, fourth and seventh causes of action).

In December 2011, Rope filed the operative second amended complaint (SAC) alleging causes of action for: (1) wrongful termination in violation of public policy; (2) associational discrimination in violation of FEHA; (3) discrimination on the basis of physical disability and perceived disability in violation of FEHA; and (4) failure to maintain an environment free of discrimination in violation of FEHA.

Auto–Chlor demurred again. The trial court sustained the demurrer to the SAC without leave to amend and dismissed the action. Rope appeals.

DISCUSSION

Rope contends the trial court erred when it sustained without leave to amend Auto–Chlor's demurrer as to four claims in the FAC, and erred again in sustaining without leave to amend Auto–Chlor's demurrer to the SAC in its entirety. Rope is partially correct.

1. Legal standard

A general demurrer challenges the legal sufficiency of the complaint on the ground it fails to state facts sufficient to constitute a cause of action. (Code Civ. Proc., § 430.10, subd. (e); Rakestraw v. California Physicians' Service (2000) 81 Cal.App.4th 39, 42–43, 96 Cal.Rptr.2d 354.) In reviewing a general demurrer, the facts pleaded are assumed to be true and the only issue is whether they are legally sufficient to state a cause of action. “[W]e are guided by long-settled rules. ‘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 without leave to amend, we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm. [Citations.]” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318, 216 Cal.Rptr. 718, 703 P.2d 58.) Whether a complaint states facts sufficient to constitute a cause of action is a question of law. (Hernandez v. City of Pomona (1996) 49 Cal.App.4th 1492, 1497, 57 Cal.Rptr.2d 406.)

2. The trial court did not err in sustaining Auto–Chlor's demurrer to the first, second and fourth causes of action in the FAC.a. Allegations

In the FAC Rope alleged that he was terminated (1) for the pretextual reason of “poor performance” because Auto–Chlor did not want to pay him for leave taken under the DPA, (2) as retaliation for engaging in the protected conduct of requesting paid leave, and (3) for complaining after Auto–Chlor refused to approve DPA leave.

b. Rope failed to state a cause of action under the DPA.

i. Retroactivity

The DPA requires private employers with 15 or more employees to grant “[a] leave of absence not exceeding 30 days to an employee who is an organ donor in any one-year...