Marissa DeWhite v. G3 Concepts, Inc.

A demurrer tests only the legal sufficiency of the pleading, and “[t]he facts alleged in the pleading are deemed to be true, however improbable they may be. [Citation].” (Berg & Berg Enterprises, LLC v. Boyle (2009) 178 Cal.App.4th 1020, 1034.) A demurrer must be overruled if the plaintiff has stated a cause of action under any possible legal theory. (Hale v. Sharp Healthcare (2010) 183 Cal.App.4th 1373, 1379, disapproved on other grounds in Noel v. Thrifty Payless, Inc. (2019) 7 Cal.5th 955, 986, fn.15.)

When reviewing a demurrer, the court must draw all reasonable inferences in favor of the plaintiff, not the defendant. (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1239.)

C. Discussion

1. Second Cause of Action: Retaliation in Violation of FEHA (Gov. Code § 12940, et seq.)

The second cause of action alleges retaliation in violation of FEHA under Government Code section 12940, et seq. To state a claim for retaliation, a plaintiff must plead that she engaged in protected activity, that she suffered an adverse employment action, and that there is a causal connection between the protected activity and the adverse action. (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.)

An employee engages in protected activity when the employee opposes any employment practice prohibited by FEHA (the opposition clause), files a complaint, testifies, or assists in any proceeding under FEHA (the participation clause), or requests accommodation for a disability or for a religious belief. (Gov. Code § 12940, subds. (h), (l)(4), (m)(2); Wrongful Employment Termination Practice: Discrimination, Harassment, and Retaliation (Cont.Ed.Bar 2d ed. 2026) § 3A.28.)

Defendant demurs to this cause of action on the grounds that Plaintiff does not allege a protected activity under FEHA. Defendant cites Moore v. Regents of University of California (2016) 248 Cal.App.4th 216, 247, for the proposition that “[n]otifying one’s employer of one’s medical status, even if such medical status constitutes a ‘disability’ under FEHA, does not fall within the protected activity identified in subdivision (h) of section 12940-i.e., it does not constitute engaging in opposition to any practices forbidden under FEHA or the filing of a complaint, testifying, or assisting in any proceeding under FEHA.” (Dem., p. 6, ll. 23-27.)

In opposition, Plaintiff acknowledges Moore v. Regents but argues the SAC alleges more than a mere disclosure; it alleges Defendant’s managing agents sought to avoid providing legally required maternity leave and terminated Plaintiff based on the perceived belief she would exercise her right to such leave. (SAC ¶ 20). Plaintiff relies on Steele v. Youthful Offender Parole Bd. (2008) 162 Cal.App.4th 1241, 1254, to support her argument that “[a]ction taken against an individual in anticipation of that person engaging in protected opposition to discrimination is no less retaliatory than action taken after the fact.” (Opp., p. 3, ll. 17-19.)

Defendant contends that Plaintiff’s reliance on Steele is misplaced, because the plaintiff in Steele was about to file a formal grievance. Plaintiff on the contrary “was merely pregnant and might, at

some future date, take maternity leave. Being pregnant and potentially exercising a statutory leave right is categorically different from actively opposing a discriminatory practice.” (Reply, p. 3, ll. 12-14.)

Defendant has the better argument. The SAC does not include facts showing that Plaintiff engaged in a protected activity under FEHA. (Gov. Code § 12940, subds. (h), (l)(4), (m)(2).) Nor does the SAC allege adverse action against Plaintiff as a prospective complainant or as a witness for a complainant. (See Chin et al., Cal. Practice Guide: Employment Litigation (The Rutter Group 2026) ¶ 5:1495.) Specifically, Plaintiff’s assertion that she was terminated based on the employer’s perceived belief that Plaintiff would exercise her right to maternity leave is unavailing.

First, the applicability of Steele v. Youthful Offender Parole Bd., supra, 162 Cal.App.4th 1241, 1254 appears limited to employers who retaliate against employees suspected of planning to file discrimination complaints or who will serve as witnesses for complainants. (Id., at p. 1255.) Moreover, even if Steele were interpreted to extend to employees requesting disability accommodation (Gov. Code § 12940, subd. (m)(2)), the SAC does not allege that Plaintiff sought any accommodation based on her pregnancy.

Accordingly, the second cause of action is sustained with leave to amend.

2. Third Cause of Action: Retaliation in Violation of Labor Code Sections 98.6 and 1102.5

a. Labor Code Section 1102.5

Labor Code section 1102.5 specifically prohibits retaliation against employees where a disclosure is made “to a person with authority over the employee or another employee who has the authority to investigate, discover, or correct the violation or noncompliance.” (Lab. Code, § 1102.5, subd. (b); See Wrongful Employment Termination Practice: Discrimination, Harassment, and Retaliation (Cont.Ed.Bar 2d ed. 2026) § 3A.69.)

Defendant argues the third cause of action is inadequately pleaded because it relies on conclusory assertions. Defendant additionally argues that even if the claim is based on wage complaints and not pregnancy disclosure, the SAC only alleges “multiple inquiries” about benchmark compensation. The allegations also do not identify to whom the inquiries were made, when they occurred, what was said, whether they were written or oral, what response was received, or how any response led to retaliation. (Reply, p. 4, ll. 12-21.)

The SAC alleges that Plaintiff repeatedly requested payment of earned wages following successful completion of project benchmarks. (SAC, ¶¶ 16, 64.) As noted by Defendant, the SAC also alleges that Plaintiff made “multiple inquiries” regarding the owed compensation. (SAC ¶ 56.) The Court finds that “requests” and “inquiries” are not the same as “complaints.” Moreover, the SAC does not allege that she made a complaint regarding the unpaid wages to Judkins (President of G3 Concepts, Inc.) or any employee who has the authority to investigate, discover, or correct the violation or noncompliance.

b. Labor Code Section 98.6

Labor Code section 98.6 prohibits an employer from retaliating against an employee for exercising a right under the Labor Code. (See Lab. Code, § 98.6, subd. (a); Garcia-Brower v. Premier Automotive Imports of CA, LLC (2020) 55 Cal.App.5th 961, 972.) For example, Labor Code section 98.6 protects an employee for “[m]aking a written or oral complaint that the employee is owed unpaid wages.” 1 (See Wrongful Employment Termination Practice: Discrimination, Harassment, and Retaliation (Cont.Ed.Bar 2d ed. 2026) § 3A.37.)

To establish a prima facie violation of section 98.6, the employee is required to demonstrate that she engaged in protected activity, that the employer subjected her to an adverse employment action, and that the employee’s protected activity substantially motivated the employer’s adverse employment action. (Garcia-Brower v. Premier Automotive Imports of CA, LLC, supra, 55 Cal.App.5th 961, 977.)

The SAC alleges that Plaintiff repeatedly requested payment of earned wages following successful completion of project benchmarks. (SAC, ¶¶ 16, 64.) As noted by Defendant, the SAC also alleges that Plaintiff made “multiple inquiries” regarding the owed compensation. (SAC ¶ 56.) The Court finds that “requests” and “inquiries” are not the same as “complaints.” The SAC insufficiently pleads the Labor Code section 98.6 claim.

Thus, for the foregoing reasons, the demurrer to the third cause of action is sustained with leave to amend.

3. Fourth Cause of Action: Failure to Maintain an Environment Free from Retaliation, Harassment, and Discrimination in Violation of FEHA (Govt. Code § 12940, et seq.)

Defendant demurs to Plaintiff’s fourth cause of action for failure to maintain an environment free from retaliation, harassment, and discrimination.

The fourth cause of action raises three theories of liability: (1) retaliation, (2) harassment, and (3) discrimination. Defendant argues that the fourth cause of action is insufficiently pled because the SAC lacks allegations of “harassment” and improperly alleges “retaliation”. Defendant concedes that “[t]he cause of action references discrimination which she has sufficiently pleaded.” (Dem., p. 8, l. 10.)

Because Plaintiff has properly alleged discrimination, Defendant’s demurrer to the fourth cause of action is overruled. “A demurrer does not lie to a portion of a cause of action. [Citation.]” (PH II, Inc. v. Superior Court (1995), 1682-1683 [if there are several grounds for liability, the viability of one is sufficient to survive demurrer].)

The demurrer to the fourth cause of action is overruled.

1 The parties do not address the issue whether a “written or oral complaint” for unpaid wages refers to a complaint before the Labor Commissioner. (Lab. Code § 98.6.) The Court declines to address the matter.

II. MOTION TO STRIKE

Defendant moves to strike the following portions of the SAC:

1. Paragraph 32 (page 7, lines 23-27): “The actions and conduct...”;

2. Paragraph 35 (page 8, lines 13-16), in its entirety;

3. Paragraph 45 (page 10, lines 4-8): “The actions and conduct...”;

4. Paragraph 65 (page 13, lines 20-24): “The actions and conduct...”;

5. Paragraph 76: “The actions and conduct of Defendants, and each of them, were intended to cause injury to Plaintiff and constituted deceit and concealment of material facts known to Defendants and each of them, with the intention on the Defendants’ part to deprive Plaintiff of property and legal rights, justifying an award of exemplary and punitive damages in an amount according to proof”;2 and

6. Paragraph 91 (page 18, lines 24-28): “The actions and conduct...”

A.

Legal Standard

Code of Civil Procedure section 436 permits a court to strike: (1) “any irrelevant, false, or improper matter inserted in any pleading”; and (2) “all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” (Code Civ. Proc., § 436.) As with demurrers, the grounds for a motion to strike must “appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.” (Code Civ. Proc., § 437.)

In ruling on a motion to strike, courts do not review allegations in isolation but rather read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth. (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255; see also Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2026) ¶ 7:197.5.)

Punitive damages are available in civil actions for FEHA violations “ ‘where the defendant has been guilty of oppression, fraud, or malice.’ ” (Commodore Home Systems, Inc. v. Superior Court (1982) 32 Cal.3d 211, 215, citing Civ. Code, § 3294, subd. (a).)

When the defendant is a corporation, “the oppression, fraud, or malice must be perpetrated, authorized, or knowingly ratified by an officer, director, or managing agent of the corporation.” (Wilson v. Southern California Edison Company (2015) 234 Cal.App.4th 123, 164; see Civ. Code § 3294, subd. (b).)

2 Paragraph 76 does not contain the quoted language.

B.

Discussion

Malice is defined, in part, as “despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” (Civ. Code, § 3294, subd. (c)(1).) “ ‘Oppression’ means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” (Civ. Code, § 3294, subd. (c)(2).)

“ ‘Despicable conduct’ is conduct that is so vile, base, or contemptible that it would be looked down on and despised by reasonable people.” (CACI Nos. 3940, 3941.) “Conscious disregard of rights is conduct by a defendant who is aware of the probable dangerous consequences of such conduct to plaintiff’s interests and willfully and deliberately fails to avoid those consequences. [Citation.]” (Smith v. Brown-Forman Distillers Corp. (1987) 196 Cal.App.3d 503, 516.)

Defendant argues that punitive damages allegations should be stricken because the SAC fails to allege facts to state a claim for punitive damages. Specifically, Plaintiff’s allegations are conclusory and there are no facts showing spite or ill will.

Plaintiff responds highlighting the allegations she contends demonstrate malice and oppression and state a claim for punitive damages, including paragraphs 16, 20, 21, 23. The SAC alleges that Plaintiff disclosed to Judkins [G3 Concepts, Inc.’s President] and other employees that she was pregnant, and 34 days later, Judkins fired Plaintiff citing financial constraints as the reason for her termination. (SAC, ¶¶ 18, 20.) Additionally, “immediately following Plaintiff’s termination, Defendants promoted Plaintiff’s subordinate, a non-pregnant employee, from Marketing Assistant to Marketing Coordinator, increased her hours from part-time to full-time status, and assigned her substantially the same job duties previously performed by Plaintiff.” (SAC, ¶ 21). Finally, Defendant withheld $15,000 in earned wages to Plaintiff. (SAC ¶¶ 16, 23, 31.)

The Court has reviewed the allegations in the SAC and finds they sufficiently support a claim for punitive damages at the pleading stage. The motion to strike is denied.

ORDER (PROPOSED)

Defendant’s demurrer is sustained with leave to amend as to the second and third causes of action. The demurrer to the fourth cause of action is overruled. The motion to strike is denied.

Plaintiff may file a third amended complaint within twenty (20) days from service of the notice of ruling. (Code Civ. Proc., § 472b; Cal. Rules of Court, rule 3.1320(g).) Defendant will serve the notice of ruling. (Code Civ. Proc., § 1019.5, subd. (a).)

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