DAVID FRACOLLI VS. ANTON FRISHBERG, ET AL.

August 24, 2026 LAW AND MOTION CALENDAR PAGE 17 Judge: HONORABLE DAVID A. SILBERMAN, DEPARTMENT 11 ________________________________________________________________________

02:00 PM 26-CIV-01449 DAVID FRACOLLI VS. ANTON FRISHBERG, ET AL. LINE 6

DAVID FRACOLLI BENJAMIE SASOUNIAN ANTON FRISHBERG OLGA SAVAGE

DEFENDANTS: ANTON FRISHBERG, DELTA STAR, INC. AND MIKE PEARSON’S DEMURRER TO FIRST AMENDED COMPLAINT

TENTATIVE RULING:

Defendants Delta Star, Inc., Anton Frishberg, Oscar Morales, and Fernando Villanueva’s Demurrer to Plaintiff’s First Amended Complaint (“FAC”) is OVERRULED in part and SUSTAINED in part, but only as to the fourth through eighth causes of action, as follows:

Sham Pleading Doctrine The sham pleading doctrine is an exception to the general rule that courts disregard a prior pleading once an amended pleading has been filed. As articulated in Colapinto v. Cnty. of Riverside, “if a party files an amended complaint and attempts to avoid the defects of the original complaint by either omitting facts which made the previous complaint defective or by adding facts inconsistent with those of previous pleadings, the court may take judicial notice of prior pleadings and may disregard any inconsistent allegations.” (Colapinto v.

Cnty. of Riverside (1991) 230 Cal. App. 3d 147, 151.) The doctrine’s purpose is to “prevent sham pleadings omitting an incurable defect in the case.” (Arce v. Childrens Hosp. Los Angeles (2012) 211 Cal. App. 4th 1455, 1468, fn 7, quoting Berman v. Bromberg (1997) 56 Cal.App.4th 936, 945–946.) A pleader “may not attempt to breathe life into a complaint by omitting relevant facts which made his previous complaint defective.” (Id.) The doctrine may be triggered either when a plaintiff omits from an amended complaint harmful allegations that appeared in a prior pleading and that rendered it vulnerable to demurrer, or when a plaintiff adds new allegations to an amended complaint that are factually inconsistent with prior allegations. (Thomas v.

Regents of Univ. of California (2023) 97 Cal. App. 5th 587, 637, fn 22.) Such an omission or inconsistent explanation requires satisfactory explanation. (Tindell v. Murphy (2018) 22 Cal. App. 5th 1239.)

Defendants argue that Plaintiff’s FAC violates the sham pleading doctrine by omitting details alleged in his original Complaint and alleging new and different details about the OSHA inspection and Plaintiff’s subsequent communications with Defendants. Regarding the allegations of the OSHA inspection, Plaintiff’s Original Complaint alleges:

In or around July 2025, FRACOLLI was informed by an OSHA representative that DELTA STAR was engaging in serious and illegal safety violations. Specifically, DELTA STAR was found to be spray-painting a solid base paint in a bay on the premises that contained multiple electricity outlets and lacked both airflow and filtration. This aligned with numerous complaints

August 24, 2026 LAW AND MOTION CALENDAR PAGE 18 Judge: HONORABLE DAVID A. SILBERMAN, DEPARTMENT 11 ________________________________________________________________________ FRACOLLI received from employees regarding a strong chemical paint odor within the Quality Assurance area on Monday mornings.

(Original Complaint, ¶15.)

Regarding the same events, Plaintiff’s FAC alleges that:

13. In or around April 2025, an OSHA inspector visited the facility and explicitly informed FRACOLLI that welding could not be performed in the production area due to a lack of proper exhaust and ventilation.

14. When FRACOLLI brought this severe safety violation to the attention of the EHS department and his supervisor, Defendant ANTON FRISHBERG (“FRISHBERG”), management explicitly told FRACOLLI they “had no choice but to continue production,” knowingly allowing the hazards to persist despite the inspector’s warnings. In response to this OSHA visit, Defendant MIKE PEARSON (Chief Operating Officer) threatened FRACOLLI, explicitly warning him not to speak with OSHA regarding EHS issues. Management additionally instructed a production supervisor to lie to OSHA and hide materials during audits to avoid fines or a factory shutdown.

15. Refusing to be silenced, FRACOLLI continued to engage in legally protected activity. Between May and July 2025, FRACOLLI repeatedly reported ongoing illegal spray-painting of a solid base paint in a bay that contained multiple electrical outlets and lacked both airflow and filtration. FRACOLLI reviewed surveillance footage and confirmed that the illegal and hazardous spray painting was intentionally being conducted over the weekends to prevent employees from detecting the conduct during regular working hours.

(FAC, ¶¶13-15.)

Plaintiff pleads that his “original, unverified Complaint contained inadvertent drafting errors regarding the precise timeline of the OSHA inspection and Plaintiff’s subsequent safety reports” and that these errors were discovered after a factual investigation and more comprehensive review of the evidentiary record. (FAC, ¶¶29-31.) These allegations provide sufficient explanation that Plaintiff’s amendments were made to correct inadvertent errors.

The Demurrer is therefore OVERRULED to the extent it is based on the sham pleading doctrine.

First, Second, and Eleventh Causes of Action Defendants argue that Plaintiff’s First, Second, and Eleventh Causes of Action alleging wrongful discharge in violation of Lab. Code §§ 1102.5(b), 6310(a), and 98.6(a), which pertain to Plaintiff’s alleged reporting of safety violations, fail because Plaintiff has not connected his termination or another

August 24, 2026 LAW AND MOTION CALENDAR PAGE 19 Judge: HONORABLE DAVID A. SILBERMAN, DEPARTMENT 11 ________________________________________________________________________ adverse employment action to his reporting of violations. Plaintiff responds, inter alia, that a causal connection between his reporting of safety violations in May through July of 2025 and his termination in October of 2025 is established based on allegations of an intermediate hostility. Plaintiff alleges that Defendant Delta Star retaliated against him for exercising his rights by terminating his employment.

In support of this allegations, Plaintiff alleges, in part, “direct managerial threats” in the form of a warning not to speak to OSHA regarding Environmental Health and Safety issues, as well as a statement admitting that the two people in a meeting who objected to illegal practices were terminated. (See, e.g. FAC, ¶152.) Plaintiff has alleged the ultimate facts necessary to support these causes of action.

The Demurrer to these causes of action are accordingly OVERRULED.

Third Cause of Action—Age Discrimination Under Gov. Code § 12940(a) Under Gov. Code § 12940(a), a prima facie case of age discrimination requires four elements: (1) the plaintiff was a member of a protected class (40 years of age or older at the time of the adverse employment action); (2) the plaintiff was qualified for the position sought or was performing competently/satisfactorily in the position held; (3) the plaintiff suffered an adverse employment action; and (4) the adverse action occurred under circumstances suggesting discriminatory motive, such as replacement by a significantly younger person. (Hoglund v. Sierra Nevada Mem'l-Miners Hosp. (2024) 102 Cal. App. 5th 56.)

Defendants argue that Plaintiff’s allegations of an inquiry about his retirement plans during the interview before he was hired, statements that a younger person might be more willing to work longer hours and have fewer health issues, and interview of a younger person as a replacement candidate, who was a member of the same protected class based on age, are insufficient to state a cause of action for age discrimination. These allegations go to the element of a discriminatory motive. Defendants characterize the allegations of statements by management about a younger person being more willing to work longer hours and having fewer health issues as being stray remarks that are insufficient to establish discrimination.

Taken in conjunction with other allegations, however, and in the context of Plaintiff’s other allegations of health issues, the alleged statements show more than stray remarks and suggest a discriminatory motive.

The Demurrer to this cause of action is accordingly OVERRULED.

Fourth, Fifth, Sixth and Seventh Causes of Action—Interference, Retaliation, Failure to Accommodate and to Engage in the Interactive Process A CFRA claim requires a “serious health condition” — one involving inpatient care or continuing treatment or supervision by a health-care provider — and notice sufficient to make the employer aware of the need for CFRA-qualifying leave. (Gibbs v. Am. Airlines, Inc. (1999) 74 Cal. App. 4th 1, 6-7.) No magic words are required, and the sufficiency of notice is ordinarily a question of fact. (Avila v. Cont’l Airlines, Inc. (2008) 165 Cal. App. 4th 1237, 1255). But CFRA expressly excludes “common ailments including a cold, flu, ear ache, upset stomach, and ordinary headaches,” and notice of mere flu-type symptoms is not notice of a need for CFRA leave; the employer “is not required to be clairvoyant.” Gibbs, 74 Cal. App. 4th 1, 9.

August 24, 2026 LAW AND MOTION CALENDAR PAGE 20 Judge: HONORABLE DAVID A. SILBERMAN, DEPARTMENT 11 ________________________________________________________________________

The FAC alleges only that, on August 20, 2025, Fracolli told Frishberg and HR he was unable to keep anything down and would work from home to avoid taking a full sick day. Although the FAC alleges underlying chronic conditions (Celiac disease, hypothyroidism, atrial fibrillation), it does not allege Fracolli communicated those conditions to Delta Star. As pleaded, the employer was made aware only of a transient upset stomach coupled with a request to keep working — allegations that do not establish notice of a serious health condition.

Duties to inquire and accommodate are triggered only by a known disability — one of which the employer is aware because it is obvious, the employee brought it to the employer’s attention, or the employer otherwise learned of it. (Featherstone v. S. California Permanente Med. Grp. (2017) 10 Cal. App. 5th 1150, 1169.) The employee bears the burden of giving notice; the employer has no duty to investigate whether an illness might be a disability, and not every illness qualifies as a disability. (Id. at 1167; Avila v. Cont’l Airlines, Inc. (2008) 165 Cal. App. 4th 1237, 1252.) The interactive-process duty likewise requires that the employee identify the disability and resulting limitations unless they are open and obvious and the FEHA disability definition excludes “minor and non-chronic gastrointestinal disorders.” (34 Cal. Code Regs. tit. 2, § 11065)

Accordingly, the Demurrer to these causes of action are accordingly SUSTAINED with leave to amend.

Eighth Cause of Action—Harassment Under Gov. Code § 12940(j). As Defendants have stated, stating a cause of action for a hostile work environment/harassment requires Plaintiff to plead that (1) he belongs to a protected group; (2) he was subjected to unwelcome harassment because of being a member of that group; and (3) the harassment was sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment. (Gov. Code § 12940(j).) Plaintiff’s only allegations in support of this cause of action is that he was refused the right one time to work from home upon his request. This single event is insufficient to support the cause of action.

The Demurrer to this cause of action is accordingly SUSTAINED with leave to amend.

Ninth, Tenth, and Twelfth Causes of Action for Wrongful Termination in Violation of Public Policy, Negligent Hiring, and Unfair Business Practices Defendants argue that each of these causes of action fail because they rely on the same underlying conduct as predicate claims which are unsupported. As discussed above, some causes of action are sufficient at the pleading stage. The Demurrer to these causes of action are accordingly OVERRULED.

Any party who contests a tentative ruling must email Dept11@sanmateocourt.org with a copy to all other parties by 4:00 p.m. stating, without argument, the portion(s) of the tentative ruling that the party contests.

If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, counsel for the moving party shall prepare for the Court’s signature a written order consistent with the Court’s ruling