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Jensen v. The Home Depot, Inc.

California Court of Appeals, Fourth District, Second Division

May 31, 2018

ROSA JENSEN, Plaintiff and Appellant,
v.
THE HOME DEPOT, INC., et al., Defendants and Respondents.

          APPEAL from the Superior Court of Riverside County No. RIC1512850. John W. Vineyard, Judge. Reversed.

          Law Offices of Maryann P. Gallagher and Maryann P. Gallagher for Plaintiff and Appellant.

          Ogletree, Deakins, Nash, Smoak & Stewart, Michael J. Sexton and James T. Conley for Defendants and Respondents.

          OPINION

          MILLER J.

         In a first amended complaint, Rosa Jensen and Linda Kerr sued their former employer, The Home Depot, Inc., (Home Depot), [1] and their former managers at Home Depot for disability discrimination, wrongful termination, and eight other related claims. Home Depot and the managers (collectively, defendants) demurred to the first amended complaint arguing misjoinder of Jensen and Kerr (collectively, plaintiffs). (Code Civ. Proc. § 430.10, subd. (d).)[2] The trial court sustained the demurrer without leave to amend, and dismissed plaintiffs' lawsuit with prejudice. Jensen contends the trial court erred by dismissing her lawsuit because the court could have ordered severance (§ 379.5). We reverse the judgment of dismissal with directions.

         FACTUAL AND PROCEDURAL HISTORY

         A. ORIGINAL COMPLAINT

         In plaintiffs' original complaint, they brought 10 causes of action related to disability discrimination and wrongful termination. Jensen asserted she worked for Home Depot as a project coordinator and telephone sales associate. In July 2010, Jensen was injured at work when a customer pushed open a bathroom door striking Jensen's shoulder, elbow, and wrist. Theresa Meza was the store manager and Karen Abraham was the human resources manager. After Jensen's injury and medical leave, Jensen asked for an accommodation so as to resume work. Meza, Abraham, and Home Depot did not permit Jensen to resume work. In November 2013, Abraham informed Jensen that Jensen's employment was terminated.

         Kerr worked as a cashier for Home Depot. On April 3, 2013, Kerr was in pain due to two abscessed teeth and a tumor in her “mouth and neck area.” On April 3, Kerr's doctor gave her an off-work note. Kerr was scheduled to work a four-hour shift on April 3, but had only two hours of sick leave. Kerr gave Meza her doctor's note and requested the day off. Meza denied Kerr's request. Kerr gave her immediate supervisor, Jen Greenman, the doctor's note and requested the day off. Greenman also denied Kerr's request because Kerr did not have sufficient sick leave. Kerr did not work her shift on April 3. On April 6, Kerr's employment was terminated due to attendance violations. Prior to April 3, Kerr had two attendance violations that occurred during her nine years of employment.

         B. ORIGINAL DEMURRER

         Defendants demurred to the complaint arguing misjoinder of plaintiffs. (§ 430.10, subd. (d).) Defendants asserted plaintiffs' claims did not arise out of a single transaction or single series of transactions, nor did the claims raise common issues of law or fact. In the caption of the document, defendants titled the document “Demurrer of defendants... or, in the alternative, motion to... sever.” Although listed in the caption, there does not appear to be a motion to sever included in the document.

         C. OPPOSITION TO THE ORIGINAL DEMURRER

         Plaintiffs opposed the demurrer. Plaintiffs argued their claims were properly joined because they were both suing defendants for disability discrimination. Plaintiffs asserted their claims raised common issues of law and fact.

         D. RULING ON THE ...


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