Robert Yamasaki v. SESLOC Credit Union, et al.

Robert Yamasaki v. SESLOC Credit Union, et al., 25CV-0611

Hearing: Demurrer Motion to Strike

Date: July 9, 2026

Robert Yamasaki filed this litigation in September 2025, against SESLOC Credit Union. Plaintiff filed a first amended complaint (FAC) in January 2026. Defendant responded to the FAC by filing the current demurrer and motion to strike.

Defendant demurs to the third, fourth, and sixth causes of action and seeks to strike references to individuals Ken Long and Jennifer Ofner. The demurrer to the third and fourth causes of action is sustained with leave to amend. The demurrer to the sixth cause of action is overruled. The motion to strike is denied.

I. DEMURRER

A.

Legal Standard

A demurrer challenges only the defects that appear on the face of the pleading under attack, or from matters outside the pleading which are subject to judicial notice. (Code Civ. Proc., § 430.30, subd. (a).) When reviewing a demurrer, a court must draw all reasonable inferences in favor of the plaintiff. (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1239.) “The facts alleged in the pleading are deemed to be true, however improbable they may be.” (Berg & Berg Enterprises, LLC v. Boyle (2009) 178 Cal.App.4th 1020, 1034.) “To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged.” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.)

B. Discussion

1. Third Cause of Action: Failure to Accommodate Disability

“The essential elements of a failure to accommodate claim are: (1) the plaintiff has a disability covered by the FEHA; (2) the plaintiff is a qualified individual (i.e., he or she can perform the essential functions of the position); and (3) the employer failed to reasonably accommodate the plaintiff's disability. [Citation.] (Wilson v. County of Orange (2009) 169 Cal.App.4th 1185, 1192.) Generally, it is the employee’s burden to give the employer notice of the disability, and the employer’s burden to take steps to accommodate the employee’s limitations. (Raine v. City of Burbank (2006) 135 Cal.App.4th 1215, 1222.) Defendant argues “Plaintiff failed to notify SESLOC of his disability as required by FEHA,” and thus, “[t]he FEHA process of reasonable accommodation could not be initiated as Plaintiff’s disability is not readily apparent.” (Dem., p. 2, ll. 22-24.)

The FAC alleges Plaintiff was diagnosed with congestive heart failure in February 2021, and from November 2024 through February 2025, he had several doctor appointments. The FAC further alleges that in mid-January 2025, Plaintiff informed his supervisor that he would be increasing his Flexible Spending Account (FSA) contribution from $750 to $3,300 due to his medical needs. On February 3, 2025, Plaintiff attended a heart checkup appointment in the morning and informed his supervisor of the appointment. That same day around 4:00 p.m. Plaintiff was terminated.

Plaintiff argues his multiple doctor appointments, the increase in his FSA contribution, and informing his supervisor of his heart checkup appointment was sufficient to impute knowledge of his health condition to Defendant. In support, Plaintiff cites Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34, 53 (Gelfo) and Moore v. Regents of the Univ. of California (2016) 248 Cal.App.4th 216 (Moore).

Both the policy and language of the statute offer protection to a person who is not actually disabled, but is wrongly perceived to be. The statute's plain language leads to the conclusion that the “regarded as” definition casts a broader net and protects any individual “regarded” or “treated” by an employer ‘as having, or having had, any physical condition that makes achievement of a major life activity difficult’ or may do so in the future. [Citation.]

Plaintiff confuses imputing knowledge of his disability with a perceived disability. In both Gelfo and Moore, the courts approached the analysis from the employer’s viewpoint and the fact that the employer believed the employee to be disabled. That is not the same as alleging facts to show the employer should have known about an employee’s disability.

Increasing an FSA contribution, attending unspecified doctors’ appointments, and informing your supervisor of the nature of one doctor’s appointment are not sufficient allegations to raise a reasonable inference that Defendant had notice of Plaintiff’s medical disability that would require Defendant to begin the accommodation process. In particular, when the FAC alleges Plaintiff was diagnosed in 2021 and performed his job without any accommodation for the following four years.

Defendant also argues that the FAC does not allege “that a reasonable accommodation could allow [Plaintiff] to continue his job duties, nor identify what that accommodation would be.” (Dem., p. 2, ll. 25-27.) Plaintiff responds he is not required to identify any proposed accommodations, and that because Defendant “believe[ed] Plaintiff was disabled, [it] had an affirmative obligation to interact in good faith with Plaintiff and accommodate him ....” (Opp., p. 4, ll. 12-14.) The FAC does not allege facts upon which to infer Defendant perceived Plaintiff as disabled. “The employee must initiate the process unless the disability and resulting limitations are obvious.” (Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1013; Nadaf-Rahrov v. Neiman Marcus Group, Inc. (2008) 166 Cal.App.4th 952, 984-985 [for the process to work both sides must communicate directly].)

The demurrer to the third cause of action is sustained with leave to amend.

2. Fourth Cause of Action: Failure to Prevent FEHA Violations

The FAC allege Defendant “failed to take all reasonable steps necessary to prevent discrimination and retaliation from occurring with respect to Plaintiff ....” (FAC, ¶ 41.) Defendant treats the fourth cause of action as if it states a claim for failure to engage in the interactive process.

Plaintiff responds the fourth cause of action “is largely a derivative claim that develops through discovery of the mandatory training processes Defendant had in place to prevent violation of FEHA.” (Opp., p. 6, ll. 17-19.) Plaintiff further responds the fourth cause of action sets forth a retaliation claim “because he has sufficiently pleaded a failure to prevent violation of law under FEHA in this – as ‘regarded as’ circumstance.” (Opp., p. 6, 1-2.)

As set forth above, the FAC fails to set forth facts showing Defendant perceived Plaintiff as disabled thereby undermining any retaliation claim. Nor does the FAC set forth facts showing a lack of training.

The demurrer to the fourth cause of action is sustained with leave to amend.

3. Sixth Cause of Action: Infliction of Emotional Distress

“ ‘The elements of the tort of intentional infliction of emotional distress are: “ ‘(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct....’ [Citations.]” (Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 896.) Defendant argues the FAC does not set forth sufficient facts to allege extreme and outrageous conduct. The Court agrees.

The sixth cause of action, however, also alleges negligent infliction of emotional distress. (FAC, ¶ 58.) Negligent infliction of emotional distress is predicated on an underlying tort. (6 Witkin, Summary of Cal. Law (11th ed. 2024) Torts, § 1140 [negligent infliction of emotional distress not an independent tort but the tort of negligence]; see also Downey v. City of Riverside (2024) 16 Cal.5th 539, 547 [same].) Defendant does not address the negligent infliction of emotional distress claim.

“A demurrer does not lie to a portion of a cause of action. [Citation.]” (PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1682-1683 [if there are several grounds for liability, the viability of one is sufficient to survive demurrer].) The demurrer to the sixth cause of action is therefore overruled.

Finally, Defendant’s demurrer that the sixth cause of action fails because it is precluded under the workers compensation system is also overruled. (Vasquez v. Franklin Management Real Estate Fund, Inc. (2013) 222 Cal.App.4th 819, 832 [termination in violation of public policy can serve as the basis for recovery under an intentional infliction of emotional distress theory].) Again, the argument only addresses intentional infliction of emotional distress.

The demurrer to the sixth cause of action is overruled.

II. MOTION TO STRIKE

Defendant seeks to strike any references to Ken Long and Jennifer Ofner as individual defendants because the FAC does not assert any causes of action against them. Plaintiff’s counsel explains inclusion of these individuals in the FAC was an oversight and that they have since been dismissed. (Adams Decl., ¶ 4; Dismissal filed 06/22/26.) The motion to strike is therefore moot and is denied on that ground. To the extent the motion seeks to strike all references to those individuals in the FAC, the motion is denied. The identified allegations provide background for Plaintiff’s claims.

ORDER (PROPOSED)

The demurrer is sustained with leave to amend as to the third and fourth causes of action. The demurrer to the sixth cause of action is overruled. Plaintiff should file a second amended complaint within ten (10) days from service of the notice of ruling. (Code Civ. Proc., § 472b; Cal. Rules of Court, rule 3.1320(g).) Defendant is to serve the notice of ruling. (Code Civ. Proc., § 1019.5.)

The Court makes no orders regarding Plaintiff’s proposed second amended complaint attached to his counsel’s declaration. Leave to amend is granted as set forth above to address the issues raised by Defendant’s demurrer.

The motion to strike is denied.

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