Gallegos v. JEM Restaurant Management Corp.

(20) Tentative Ruling

Re: Gallegos v. JEM Restaurant Management Corp. Superior Court Case No. 25CECG05858

Hearing Date: August 19, 2026 (Dept. 403)

Motion: Demurrer to Complaint and Motion to Strike Punitive Damages

Tentative Ruling:

To sustain the demurrers to the fifth and sixth causes of action, with leave to amend. (Code Civ. Proc., § 430.10, subd. (e).)

To grant and strike the prayer for punitive damages from the Complaint at paragraphs 38, 46, 62, 60, 66, and paragraph 4 of the prayer for relief, with leave to amend. (Code Civ. Proc., § 436.)

Plaintiff may amend file an amended Complaint within 10 days of service of the order by the clerk. All new allegations shall be in boldface type.

Explanation:

Plaintiff Guillermina Gallegos sues her former employer JEM Restaurant Management Corp. (“JEM”), a franchise of Wendy's Hamburgers and Kentucky Fried Chicken that operates restaurants. Plaintiff had been employed with JEM since 1992, promoted through the ranks to Vice President of Operations. Plaintiff asserts a variety of causes of action arising from her employment:

1. Retaliation in Violation of Labor Code § 1102.5; 2. Retaliation in Violation of Labor Code 98.6; 3. Retaliation in Violation of the FEHA; 4. Sex Discrimination in Violation of the FEHA; 5. Sex Harassment in Violation of the FEHA; 6. Disability Discrimination in Violation of the FEHA; and 7. Failure to Engage in Timely, Effective, Good Faith Interactive Process to Provide a Reasonable Accommodation

JEM now demurs to causes of action 5-7 only and moves to strike the punitive damages allegations.

Demurrer

Fifth Cause of Action

Plaintiff alleges sexual harassment in violation of Government Code §12940(j)(1), which provides that it is an “unlawful employment practice" for “an employer ... because of ... sex ... to harass ... an employee.” “To establish a prima facie case of a hostile work 3

environment, [plaintiff] must show that (1) she is a member of a protected class; (2) she was subjected to unwelcome harassment; (3) the harassment was based on her protected status; (4) the harassment unreasonably interfered with her work performance by creating an intimidating, hostile, or offensive work environment; and (5) defendants are liable for the harassment. (Thompson v. City of Monrovia (2010) 186 Cal.App.4th 860, 876 ...)” (Ortiz v. Dameron Hospital Assn. (2019) 37 Cal.App.5th 568, 581.)

FEHA regulations define harassing conduct to include, verbal harassment (e.g., obscene language, demeaning comments, slurs, or threats), physical harassment (e.g., unwanted touching or interference with movement), visual harassment (e.g., offensive posters, objects, cartoons, or drawings), unwanted sexual advances, and other derogatory or offensive communications, including photographs, text messages, and internet postings. (See Cal. Code Regs., tit. 2, § 11019, subd. (b)(2); see also CACI No. 2523.) A single incident of “harassing conduct” can support a hostile work environment claim in appropriate circumstances, i.e., “if the harassing conduct has unreasonably interfered with the plaintiff's work performance or created an intimidating, hostile, or offensive working environment.” (Gov. Code, § 12923, subd. (b).)

“Harassment is distinguishable from discrimination under the FEHA. ‘[D]iscrimination refers to bias in the exercise of official actions on behalf of the employer, and harassment refers to bias that is expressed or communicated through interpersonal relations in the workplace.’” (Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 869.) Management decisions “may retrospectively be found discriminatory if based on improper motives, but in that event the remedies provided by the FEHA are those for discrimination, not harassment.” (Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 707, quoting Reno v. Baird (1998) 18 Cal.4th 640, 645–47.)

The Complaint’s allegations sound in discrimination based on gender, not harassment. Plaintiff alleges increased duties, exclusion from meetings, denial of resources, workload allocation, and operational disputes. (Complaint ¶¶56–58, 64.) These are official employment actions—personnel and management decisions that may support a discrimination claim under Government Code section 12940(a) if motivated by improper bias, but not harassment under section 12940(j).

Plaintiff takes the position that behavior that communicates that the plaintiff was not welcome in the workplace constitutes harassment. But she cites to no authority for this proposition. If that were the case, an employer saying “you aren’t wanted here” would constitute hostile workplace harassment. Plaintiff reaches too far by trying to caste the facts as sexual harassment.

Plaintiff already alleges discrimination based on gender in the fourth cause of action.1 Therefore, while the fifth may sufficiently allege discrimination, it is duplicative of the fourth cause of action. The demurrer is sustained. The court will grant leave to amend since this is the first iteration of the Complaint, but the facts simply do not appear to support a workplace harassment claim.

1 A demurrer is properly sustained as to a duplicative cause of action which provides no greater

recovery. (Award Metals, Inc. v. Superior Court (1991) 228 Cal.App.3d 1128, 1135-1136.) 4

Sixth Cause of Action for Disability Discrimination

“To establish a prima facie case of mental disability discrimination under FEHA, a plaintiff must show the following elements: (1) She suffers from a mental disability; (2) she is otherwise qualified to do the job with or without reasonable accommodation; and (3) she was subjected to an adverse employment action because of the disability.” (Higgins- Williams v. Sutter Medical Foundation (2015) 237 Cal.App.4th 78, 84.)

Plaintiff alleges that she “had a diagnosed psychological, consisting of depression and anxiety. This condition limited a major life activity in that it made the achievement of the major life activities of working difficult. JEM in that [sic] Plaintiff had taken time off work – one time a month, and another time several weeks because of her psychological condition, for which leaves JEM had required Plaintiff to fill out Workers' Compensation forms.” (Complaint ¶ 69.) “Plaintiff requested the accommodation of being excused from making a trip to Phoenix because of her psychological condition.” (Complaint ¶ 70.) “JEM refused this accommodation. JEM failed to engage in a timely, good-faith, interactive discussion about a possible accommodation. As a result, Plaintiff felt that she had no choice but to resign from employment with JEM.” (Complaint ¶ 71.)

The Complaint fails to plead facts to establish the third element – an adverse employment action. “Adverse employment actions” are those that “materially and adversely affected the terms, conditions, or privileges of [the plaintiff’s] employment,” including such actions as termination, demotion, refusal to promote, negative job evaluations, reductions in staff or responsibilities, job reassignments, denial of training or advancement opportunities, and involuntary administrative leave. (CACI No. 2509; see Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1054.)

Here, plaintiff simply alleges failure to allow a single requested accommodation – to not make a business trip. She does not allege an actual adverse employment action tied to her alleged disability. None of the employment actions alleged in the Complaint are tied at all to plaintiff’s alleged disability.

Plaintiff contends that the adverse employment action was plaintiff’s constructive discharge. However, characterizing a denied travel-related request as “the straw that broke the camel’s back” does not establish objectively intolerable working conditions because of disability. That is the only action alleged regarding plaintiff’s disability. The demurrer is sustained on the ground that plaintiff fails to plead an adverse employment action taken because of her disability or working conditions so intolerable because of her disability that a reasonable person would have had no reasonable alternative but to resign.

Seventh Cause of Action for Failure to Engage in the Interactive Process

It is an unlawful employment practice “to fail to make reasonable accommodation for the known physical or mental disability of an applicant or employee” unless the employer demonstrates doing so would impose an undue hardship. (Gov. Code, § 12940, subd. (m).) It is an unlawful employment practice “[f]or an employer ... to fail to engage in a timely, good faith, interactive process with the employee or applicant to determine effective reasonable accommodations, if any, in 5

response to a request for reasonable accommodation by an employee or applicant with a known physical or mental disability or known medical condition.” (Gov. Code, § 12940, subd. (n), emphasis added.) The reasonableness of a job accommodation is a question of fact. (Nealy v. City of Santa Monica (2015) 234 Cal.App.4th 359, 374.)

Here, plaintiff alleges that she requested the accommodation of being excused from making a trip to Phoenix because of her diagnosed psychological condition of depression and anxiety. (Complaint ¶¶ 76, 77.) JEM refused this accommodation and failed to engage in a timely, good-faith, interactive discussion about a possible accommodation, forcing plaintiff to resign. (Complaint ¶ 78.) These allegations are sufficient to allege failure to engage in the interactive process.

JEM asserts that plaintiff's allegation that defendant “refused” her request does not establish that defendant failed to engage in the interactive process. JEM ignores the allegation in the same sentence that JEM “failed to engage in a timely, good-faith, interactive discussion about a possible accommodation ...” (Complaint ¶ 78.)

JEM argues, “Plaintiff fails to identify any reasonable accommodation. Her only request was to be excused from the Phoenix franchise meeting entirely, which is not an accommodation but a request to be relieved of a job duty (Complaint at ¶24.) Plaintiff does not allege that she requested a modified travel schedule, remote participation, reassignment of that specific obligation, or any other modification that would have enabled her to perform the function (i.e., attending a franchise meeting). Nor does she allege facts showing Defendant was aware of any further reasonable accommodation that was needed but ignored.” (MPA 10:22-27.)

However, plaintiff states that she requested an accommodation, which JEM refused, and JEM failed to engage in the interactive process to determine if there was any effective accommodation. At the pleading stage the allegations are sufficient.

JEM’s arguments regarding the timing of evens fails to show that the cause of action lacks merit. (See MPA p. 11.) The question is whether plaintiff alleges sufficient facts to show that JEM failed to engage in the interactive process. That she has done. That plaintiff resigned or took leave shortly after the failure to accommodate, allegedly constructively discharged from the cumulative effect of JEM’s actions and conduct towards plaintiff, does not negate the failure to engage in the process. The demurrer to this cause of action should be overruled.

Motion to Strike

“The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading, (b) Strike out 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.) A motion to strike may be used to remove a claim for punitive damages that is not adequately supported by the facts alleged in the complaint. (Cryolife, Inc. v. Superior Court (2003) 110 CalApp.4th 1145; Kaiser Foundation Health Plan, Inc. v. Superior Court (2012) 203 Cal.App.4th 696.)

Civil Code section 3294, subdivision (a) provides:

In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.

Civil Code section 3294 was amended in 1987 to require a showing of despicable conduct as a predicate to the recovery of punitive damages. "Despicable conduct" is defined as conduct that is so vile, base or contemptible that it would be looked down on and despised by reasonable people.”

Used in its ordinary sense, the adjective "despicable" is a powerful term that refers to circumstances that are "base," "vile," or "contemptible." (4 Oxford English Diet. (2d ed. 1989) p. 529.) As amended to include this word, the statute plainly indicates that absent an intent to injure the plaintiff, "malice" requires more than a "willful and conscious" disregard of the plaintiffs' interests. The additional component of "despicable conduct" must be found. (Accord, BAJJ No. 14.72.1 (1992 Re-Rev.)); Mock v. Michigan Miliers Mutual Ins. Co. (1992) 4 Cal.App.4th 306, 331.) (College Hospital, Inc., v. Superior Court (1994) 8 Cal.4th 704, 725.)

The addition of the criterial adjective “despicable” was a significant substantive limitation on the recovery of punitive damages (along with the elevation of the burden of proof), as it is a “powerful term.” (College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 725.) On the continuum of conduct, it is toward the extreme, eliciting adjectives such as vile or base and rousing the contempt or outrage of reasonable people. (American Airlines, Inc. v. Sheppard, Mullin, Richter & Hampton (2002) 96 Cal.App.4th 1017, 1050-1051.)

To recover punitive damages against a corporate employer, such as Defendant, a plaintiff must allege conduct by an officer, director, or managing agent within the meaning of Civil Code section 3294, subdivision (b). Managing agents are corporate employees who “exercise substantial independent authority and judgment over decisions that ultimately determine corporate policy.” (White v. Ultramar, Inc. (1999) 21 Cal.4th 563, 566-567.) A supervisor is not a managing agent merely because they have authority to hire or fire employees. (Id. at p. 566; Mazik v. Geico General Ins. Co. (2019) 35 Cal.App.5th 455, 464.) Thus, a plaintiff must show that the employee exercised “substantial discretionary authority over significant aspects of a corporation’s business.” (Mazik, 35 Cal.App.5th at p. 464 citing White, supra.)

The motion is granted because the Complaint simply does not allege facts establishing any oppressive, fraudulent, or malicious conduct by JEM. While the Complaint identifies some persons who are likely managing agents, such as LH (President) or RB (Chief Facility Officer). But the Complaint does not allege facts showing that LH, RB, or any officer, director, or managing agent adopted policies or made decisions with malicious, oppressive, or fraudulent intent.

Plaintiff in the opposition characterizes the Complaint’s allegations as a prolonged and calculated campaign of harassment, retaliation, and discrimination that subjected plaintiff to cruel and unjust hardship in conscious disregard of her rights.

That characterization is a bit overblown. The Complaint alleges routine employment decisions and managerial conduct, including a demotion, one failure to engage in the interactive process, increased workload, exclusion from meetings. The facts alleged simply do not rise to the level of malice, oppression, or fraud. Not every FEHA claim gives rise to punitive damages. (See Turman v. Turning Point of Central California, Inc. (2010) 191 Cal.App.4th 53, 64 [although the plaintiff alleged facts sufficient to state a FEHA gender-discrimination claim, those same underlying facts did not rise to the level of malice, oppression, or fraud required under Civil Code section 3294].) The motion to strike is granted with leave to amend, though again, plaintiff’s counsel seems to be overreaching by trying to seek punitive damages in this case.

Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Procedure section 1019.5, subdivision (a), no further written order is necessary. The minute order adopting this tentative ruling will serve as the order of the court and service by the clerk will constitute notice of the order.

Tentative Ruling

Issued By: SMC on August 18, 2026. (Judge’s initials) (Date)

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