PASCUAL v. FEDERAL EXPRESS CORPORATION, et al.

LAW AND MOTION TENTATIVE RULINGS DATE: MAY 26, 2026 TIME: 8:30 A.M.

No. 26CV00253

PASCUAL v. FEDERAL EXPRESS CORPORATION, et al.

DEFENDANT FEDERAL EXPRESS CORPORATION’S DEMURRER

DEFENDANT JULIO FERNANDEZ’S DEMURRER

As discussed below, the demurrers are sustained with leave to amend except the demurrer to the third cause of action, which is overruled.

I. COMPLAINT

Plaintiff Jovani Nuci Pascual (“plaintiff”) worked as a package handler for defendant FedEx. Defendant Fernandez was plaintiff’s supervisor. The complaint alleges 11 causes of action. (1) disability discrimination pursuant to FEHA, (2) disability harassment in violation of FEHA, (3) failure to prevent discrimination and harassment in violation of FEHA, (4) failure to engage in the good faith interactive process, (5) failure to accommodate in violation of FEHA, (6) retaliation in violation of FEHA, (7) retaliation in violation of Labor Code section 1102.5, (8) wrongful constructive termination in violation of public policy, (9) failure to provide rest breaks, (10) failure to pay wages due upon termination/waiting time penalties, and (11) failure to issue accurate and itemized wage statements.

The second and ninth through eleventh causes of action are alleged against all defendants, including individually against Hernandez. All eleven causes of action are alleged against FedEx.

Plaintiff alleges that he sustained a back injury at work on March 25, 2024. The next day he received a note from his doctor which restricted him from lifting more than 30 pounds for three weeks until his next doctor’s visit. Plaintiff provided the notice to Fernandez. (Compl. at ¶ 12.) Plaintiff alleges that he was accommodated for one week only and that after then “[d]efendants ignored Plaintiff’s disability and request for accommodation, as Plaintiff was required to return to his normal heavy lifting duties... .” (Compl. at ¶ 13.)

Plaintiff asserts he notified Fernandez and the area manager of his limitations and was ignored. (Compl. at ¶¶ 14- 15.) Plaintiff maintains that Fernandez often reduced his hours and sent him home early. Plaintiff contends he suffered a neck injury at work on July 14, 2024, and reported it to Fernandez who failed to report it for three weeks. Plaintiff sustained an arm injury on November 5, 2024, while moving a 90-pound box. Plaintiff asserts he was denied requests for accommodation and was forced to quit on April 4, 2025. (FAC at ¶¶ 20-21.)

Plaintiff alleges that defendants failed to provide duty-free rest breaks, failed to keep and provide accurate wage statements, required him

LAW AND MOTION TENTATIVE RULINGS DATE: MAY 26, 2026 TIME: 8:30 A.M.

to work through rest periods, and failed to pay him his final payment in a prompt and timely fashion. (FAC at ¶ 24.)

II. DEMURRER BY FEDERAL EXPRESS

FedEx demurs to the second and third causes of action pursuant to Code of Civil Procedure section 430.10, subdivisions (e) and (f). FedEx argues the second cause of action for harassment fails because the complaint does not plead facts showing abusive, bias driven interpersonal acts by any FedEx agent that are severe or pervasive, nor facts linking conduct to disability-based animus. The third cause of action fails, asserts FedEx, because the second cause of action, the underlying FEHA harassment claim, is not viable.

III. DEMURRER BY JULIO FERNANDEZ

Fernandez demurs to the second, ninth, tenth and eleventh causes of action pursuant to Code of Civil Procedure section 430.10, subdivisions (e) and (f). Fernandez argues the second cause of action for harassment fails because the complaint does not plead facts showing abusive, bias driven interpersonal acts by any FedEx agent that are severe or pervasive, nor facts connecting the conduct to disability-based animus. Fernandez demurs to the ninth through the eleventh causes of action in that liability for these causes of action are limited to an owner, director, officer, or managing agent of the employer; Fernandez asserts there are no factual allegations that he is a managing agent.

IV. LEGAL STANDARD

“A demurrer tests the pleading alone, and not the evidence or the facts alleged.” (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.) “For that reason, we ‘assume the truth of the complaint's properly pleaded or implied factual allegations.’ [Citation.] We also ‘consider judicially noticed matters.’ [Citation.] ‘In addition, we give the complaint a reasonable interpretation, and read it in context.’ [Citation.]” (E-Fab, Inc. v. Accountants, Inc. Services (2007) 15 Cal.App.4th 1308, 1315.)

“A complaint, with certain exceptions, need only contain a ‘statement of the facts constituting the cause of action, in ordinary and concise language’ (Code Civ. Proc., § 425.10, subd. (a)(1)) and will be upheld ‘so long as [it] gives notice of the issues sufficient to enable preparation of a defense’ [Citation.]” (Mahan v. Charles W. Chan Ins. Agency, Inc. (2017) 14 Cal.App.5th 841, 848, fn. 3.)

V. DISCUSSION

LAW AND MOTION TENTATIVE RULINGS DATE: MAY 26, 2026 TIME: 8:30 A.M.

i. FedEx Demurrer

FedEx argues the complained of acts are managerial in nature and cannot be grounds for a harassment claim and that plaintiff failed to plead severe or pervasive harassing conduct. In opposition, plaintiff asserts the complaint “alleges a sustained pattern of conduct by Defendant Fernandez that goes well beyond routine management.” (Opp. at p. 6.)

“FEHA prohibits an employer from harassing an employee ‘because of ... physical disability.’ (§ 12940, subd. (j)(1).)” (Cornell v. Berkeley Tennis Club (2017)18 Cal.App.5th 908, 927.) “‘[A]n employee claiming harassment based upon a hostile work environment must demonstrate that the conduct complained of was severe enough or sufficiently pervasive to alter the conditions of employment and create a work environment that qualifies as hostile or abusive to employees ... .’ [Citation.]” (Hope v. California Youth Authority (2005) 134 Cal.App.4th 577, 588.) A reasonable member of plaintiff’s protected group would have to consider the work environment as hostile and that plaintiff’s supervisor engaged in the conduct or defendant knew or should have known of the conduct and failed to take immediate corrective action. (See, CACI 2521A.)

“[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.” (Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 707.) “[H]arassment consists of a type of conduct not necessary for performance of a supervisory job. Instead, harassment consists of conduct outside the scope of necessary job performance, conduct presumably engaged in for personal gratification, because of meanness or bigotry, or for other personal motives. Harassment is not conduct of a type necessary for management of the employer's business or performance of the supervisory employee's job.” (Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 63.)

The claims in the complaint are not sufficient to sustain a cause of action for harassment under FEHA. In support of this cause of action, plaintiff asserts that “Defendants’ affirmative acts described in the general allegations herein constituted disability harassment, both creating a hostile work environment and constituting disability harassment.” (Compl. at ¶ 47.) Plaintiff’s primary complaints in the general allegations are that he was not provided with accommodation for his disability and that because he was restricted from lifting, his hours were reduced.

Eventually he was forced to quit because of the lack of accommodation. There aren’t allegations of conduct “not necessary for performance of a supervisory job” or allegations of “conduct presumably engaged in for personal gratification, because of meanness or bigotry, or for other personal motives.” (Janken, supra, 46 Cal.App.4th at p. 63.) The Court is also confused with

LAW AND MOTION TENTATIVE RULINGS DATE: MAY 26, 2026 TIME: 8:30 A.M.

paragraph 48 of the complaint which asserts plaintiff was terminated because of an astigmatism but paragraph 22 of the complaint asserts plaintiff was forced to quit because of the failure to accommodate and disability discrimination. The demurrer to this cause of action is sustained with leave to amend.

The third cause of action, failure to prevent discrimination or harassment, relates to both the first and second causes of action. “Defendant failed to reasonably investigate their employees, supervisors, and managers behaviors and take all reasonable steps necessary to prevent discrimination and harassment from occurring in violation of § 12940(k).” (Compl. at ¶ 57.) (Emphasis added.) Since defendants did not challenge the first cause of action, the Court overrules this demurrer.1

ii. Julio Fernandez Demurrer Fernandez demurs to the second, ninth, tenth and eleventh causes of action. The demurrer to the second cause of action for harassment is sustained with leave to amend, as discussed above.

Fernandez demurs to the ninth through eleventh causes of action and argues that he cannot be individually liable under Labor Code section 558.1 because he is not alleged to be an owner, director, officer, or managing agent of the employer. Plaintiff, in opposition, asserts that the complaint alleges that “Fernandez was Plaintiff’s direct supervisor who controlled Plaintiff’s hours, rest periods, and working conditions” which is sufficient to state a claim for individual liability. (Opp. at p. 8.)

Labor Code section 558.1 states, “(a) [a]ny employer or other person acting on behalf of an employer, who violates, or causes to be violated, any provision regulating minimum wages or hours and days of work in any order of the Industrial Welfare Commission, or violates, or causes to be violated, Sections 203, 226, 226.7, 1193.6, 1194, or 2802, may be held liable as the employer for such violation. (b) For purposes of this section, the term ‘other person acting on behalf of an employer’ is limited to a natural person who is an owner, director, officer, or managing agent of the employer, and the term ‘managing agent’ has the same meaning as in subdivision (b) of Section 3294 of the Civil Code. (c) Nothing in this section shall be construed to limit the definition of employer under existing law.” (Emphasis added.)

The California Supreme Court has interpreted “managing agent” in the context of Civil Code section 3294 as “supervisors who have broad discretionary powers and exercise substantial

1 In his opposition, plaintiff notes he made a typographical error in paragraph 56 where he references age harassment.

LAW AND MOTION TENTATIVE RULINGS DATE: MAY 26, 2026 TIME: 8:30 A.M.

discretionary authority in the corporation could be managing agents.” Of note, “supervisors who have no discretionary authority over decisions that ultimately determine corporate policy would not be considered managing agents even though they may have the ability to hire or fire other employees.” (White v. Ultramar (1999) 21 Cal.4th 563, 577.)

The complaint identifies Fernandez as plaintiff’s supervisor/manager and that he is “an ‘other person acting on behalf of an employer’ within the meaning of Labor Code §558.1.” (Compl. at ¶ 3.) However, beyond that conclusory statement, there are no allegations that Fernandez is a managing agent. Fernandez is alleged to have reduced plaintiff’s hours and sent him home early. The complaint alleges Fernandez criticized plaintiff for not doing better work even though plaintiff was unable to move boxes appropriately because of his restrictions.

The complaint does not contain any allegations that Fernandez had broad discretionary power and exercised substantial discretionary authority in the corporation. Therefore, the demurrers to these three causes of action are sustained with leave to amend. Plaintiff has 20 days from the hearing date to file an amended complaint which addresses these deficiencies.

No. 25CV01823

RENFRO v. CAMPBELL

DEFENDANT’S MOTION TO CHANGE VENUE

The motion is granted. The Court orders this action be transferred to Madera County.

Self-represented plaintiff David Renfro brought this case against self-represented defendant Edward E. Campbell (erroneously sued as Beau Campbell) alleging five causes of action including breach of contract, federal copyright infringement, defamation, intentional infliction of emotional distress and unjust enrichment. Plaintiff alleges he performed design and engineering services and seeks $68,000.00 for unpaid services. (Compl. at ¶ 17.) The complaint also alleges defendant made false and disparaging statements about plaintiff, causing severe emotional distress. (Compl. at ¶ 17.) According to the filed proof of service, defendant was personally served with the summons and complaint on November 7, 2025, in Madera, California.

On February 10, 2026, this Court denied defendant’s motion to quash service, ruling that defendant was personally served as an individual (instead of as a business entity). Defendant now moves to transfer venue to Madera County based on his residence as a defendant in his individual capacity. (Code Civ. Proc., § 395, subd. (a).) Plaintiff opposes on the grounds venue is proper in Santa Cruz County because this is where the contract was entered into and work provided, as well as this is where his emotional distress witnesses are located.