2018-00232290-CU-OE
Nazareth Howard vs. Pacific Fresh Sea Food
Nature of Proceeding: Hearing on Demurrer to First Amended Complaint
Filed By: Hawkins, Bryan L.
** If any party requests oral argument, then at the time the request is made, the requesting party shall inform the court and opposing counsel of the specific issue(s) on which oral argument is sought. **
The demurrer of Defendant Pacific Fresh Sea Food Company, Inc., sued as Pacific Fresh Sea Food dba Pacific Sea Food California, (Pacific) is OVERRULED.
Overview
This case presents an employment dispute. The plaintiff and former employee is Nazareth Howard III (Howard), who is African-American. Pacific is the defending employer.
In the first amended complaint (FAC), Howard alleges that a fellow employee “called [him] a stupid ‘N-word’” after he asked for assistance while learning to cut fish. (FAC,
¶¶ 10, 11.) Howard further alleges that he informed Human Resources and his superiors about the incident, and the issue of “racial language” was subsequently addressed in a department meeting. (Id., ¶¶ 12-14.) After the meeting, Howard’s colleagues refused to speak with him, consistently threw fish at him, aggressively “rubbed shoulders” with him and attempted to intimidate him with “hard stares.” (Id.,
¶¶ 15, 16.) Howard made a series of complaints about this retaliation “from co-workers, and supervisors[.]” (Id., ¶ 17.) According to Howard, he was forced to quit. ( Id., ¶ 1.)
The FAC contains causes of action against Pacific for race discrimination in violation of
the FEHA, “failure to Prevent Discrimination / Aiding Abetting and/or Inciting Discrimination” under the FEHA, and retaliation under the FEHA. Pacific now demurs to each cause of action on grounds the allegations are uncertain and fail to state a valid cause of action. Howard opposes.
Discussion
Uncertainty
The demurrers are overruled.
The allegations are not so uncertain that Pacific cannot frame a response. Demurrers for uncertainty are disfavored and are only granted where the complaint is so muddled that the defendant cannot reasonably respond. The favored approach is to clarify theories in the complaint through discovery. (See Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616; 1 Weil & Brown, Civil Procedure Before Trial (Rutter 2018), § 7:85, p. 7(l)-41, -42.)
Failure to State a Cause of Action
The First Cause of Action for Racial Discrimination
The demurrer is overruled.
Pacific argues that the demurrer should be sustained because Howard has not alleged any adverse employment action. In Pacific’s view, the allegations describe nothing more than ostracism by co-workers, which is insufficient in itself. (See Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1054, fn. 13; Brooks v. City of San Mateo (9th Cir. 2000) 229 F.3d 917, 929.) To the extent Howards tenders his constructive discharge as an adverse employment action, Pacific argues that the allegations do not describe the “extraordinary and egregious” conduct required to support such a theory.
Howard’s allegations need not be construed as mere ostracism. He alleges that his co -workers continually threw fish at him, aggressively brushed shoulders with him, and that Human Resources and his superiors were aware of this misconduct but took no action. (See FAC, ¶ 22.) Such allegations can be construed to describe workplace harassment, which is enough to establish an adverse employment action under the FEHA. (See Kelley v. The Conco Cos. (2011) 196 Cal.App.4th 191, 212-214, superseded by statute on another point as stated in Taylor v. Nabors Drilling USA, LP (2014) 222 Cal.App.4th 1228, 1239, fn. 2.) As a result, Howard’s allegations survive demurrer. (Cf. Valdez v. City of Los Angeles (1991) 231 Cal.App.3d 1043, 1956 [“Whether conditions were so intolerable as to justify a reasonable employee’s decision to resign is normally a question of fact”].)
The Second Cause of Action for Failure to Prevent Discrimination / Aiding Abetting and/or Inciting Discrimination
The demurrer is overruled.
The second cause of action is compound, i.e., it contains multiple legal claims. Only one claim must be sufficiently pleaded to overcome the demurrer. (See Lin v. Coronado (2014) 232 Cal.App.4th 696, 701.) As to the claim that Pacific failed to
prevent discrimination, Pacific argues that the claim is defective for the same reason the first cause of action for discrimination is, namely that the allegations do not establish the requisite adverse employment action. (See Moving Memo. at 10:5-13.) As explained above, though, the allegations can be construed to establish an adverse employment action. As a result, the demurrer to the second cause of action must be overruled, and the court does not address the sufficiency of other claims within the second cause of action.
The Third Cause of Action for Retaliation
The demurrer is overruled.
Pacific argues first that the allegations do not establish an adverse employment action, but that argument lacks merit for reasons previously discussed.
Pacific also argues that the allegations do not establish the necessary nexus between an adverse employment action and Howard’s protected activity. In Pacific’s view, Howard has not alleged that his co-workers’ mistreatment of him flowed from his complaint of the racial slur. The allegations, however, can be read more favorably to Howard. Howard alleges that his co-workers mistreated him in “continued acts of retaliation related to his race-based complaint.” (FAC, ¶ 16, emphasis omitted.) The court in Kelley, supra, held that an employer may be held “liable for retaliation…’by permitting…fellow employees to punish [him] for invoking [his] rights.’” (196 Cal.App.4 th, p. 213, brackets and second ellipsis in original.) Therefore, the court rejects Pacific’s contrary argument.
Disposition
The demurrer is overruled.
Pacific is directed to file and serve its answer to the FAC no later than 10/01/18.
The minute order is effective immediately. No formal order pursuant to CRC 3.1312 or further notice is required.