Jose Antonio Santana Rubio v. Ritz-Carlton Hotel Company, LLC, et al.

Case Number

24CV04533

Case Type

Hearing Date / Time

Wed, 10/01/2025 - 10:00

Nature of Proceedings

Demurrer of Defendant Luis De La Mora Sotelo to Second Amended Complaint

Tentative Ruling

For Plaintiff Jose Antonio Santana Rubio: Kane Moon, Christopher L. Garcia, Ryan D. Handley, Helena Wiles, Moon Law Group, PC

                                   

For Defendants Ritz-Carlton Hotel Company L.L.C., Marriott International Administrative Services, Inc., and Luis De La Mora Sotelo: Jennifer S. McGeorge, Julie A. Bachert, Ford & Harrison LLP

RULING

For the reasons set forth herein, the demurrer of Defendant Luis De La Mora Sotelo to the second amended complaint of Plaintiff Jose Antonio Santana Rubio is sustained with leave to amend as to the eighth cause of action (violation of Labor Code section 1102.5) and to the second amended complaint as a whole. Plaintiff shall file and serve a third amended complaint on or before October 16, 2025.

Background

As alleged in Plaintiff Jose Antonio Santana Rubio’s second amended complaint (SAC):

In July 2015, Defendants Ritz-Carlton Hotel Company L.L.C. (Ritz-Carlton), Marriott International Administrative Services, Inc., (Marriott), and Luis De La Mora Sotelo (Sotelo) (collectively, Defendants) hired Plaintiff Rubio as a dish washer. (SAC, ¶¶ 2-4, 8.) Defendant Sotelo was Rubio’s supervisor with the authority to fire Rubio or to participate in the decision to fire Rubio. (SAC, ¶ 4.) (Note: In prior complaints, Sotelo’s last name is stated as “Palmas” instead of “Sotelo.”)

In August 2020, Rubio’s doctor diagnosed Rubio with kidney failure which required dialysis three (3) times a week. (SAC, ¶ 9.) Rubio fully informed Defendants of his kidney condition and did not need to take time off work to attend dialysis. (Ibid.)

On April 12, 2022, Rubio’s doctor diagnosed Rubio with a hernia and scheduled Rubio for surgery the following day. (SAC, ¶ 10.) Rubio’s doctor placed Rubio on a medical leave of absence for approximately one month. (Ibid.) Rubio immediately

informed Defendants of his surgery and his need for a medical leave of absence. (Ibid.)

On May 11, 2022, Rubio fell and fractured his pelvis. (SAC, ¶ 11.) Rubio was hospitalized for approximately two weeks. (Ibid.) Rubio immediately informed Defendants of his pelvis injury and requested a medical leave of absence. (Ibid.)

In June 2022 and within approximately one month of Rubio’s pelvis injury and within approximately two months of Rubio’s hernia surgery, Rubio noticed that Defendants were no longer providing him with health insurance. (SAC, ¶ 12.) Beginning in June 2022, Rubio constantly reached out to Defendants, including Sotelo, and asked them what the status of his job and his health insurance was. (SAC, ¶ 13.) Rubio attempted to speak to Defendants’ Human Resources department multiple times and requested information on whether his employment and health insurance were secure with Defendants. (Ibid.) However, Defendants’ Human Resources department informed Rubio that Rubio was no longer in Defendants’ “system.” (Ibid.) Around this same time, Rubio also complained to Sotelo that Defendants were denying him health insurance and effectively firing him because of his disabilities since he was no longer in Defendants’ “system.” (Ibid.)

In June 2022, Defendants, including Sotelo, were initially responsive and told Rubio that they would investigate his complaints. (SAC, ¶ 14.) However, Defendants, including Sotelo, never followed up with Rubio about any investigation and, in approximately June 2022, began to ignore Rubio entirely, effectively firing him. (SAC, ¶ 15.) Since approximately June 2022, Defendants, including Sotelo, never contacted Rubio. (Ibid.)

Rubio understood that (1) when Defendants cancelled his health insurance and (2) when Defendants, including Sotelo, completely ignored his multiple requests to confirm his employment and health insurance, they were firing him and retaliating against him for his complaints of illegal activity or activity that he reasonably believed to be illegal. (SAC, ¶ 16.) Defendants terminated Rubio’s employment in retaliation for being disabled, for attempting to take time off of work because of his medical conditions, for his medical leaves of absence, for his requests for accommodation, for his complaints of illegal activity (which took place within 30

days of Defendants entirely ignoring and effectively firing him), for his complaints of what Rubio reasonably believed to be illegal, or for other discriminatory reasons. (SAC, ¶ 17.)

On August 16, 2024, Rubio filed his original complaint for damages against Defendants asserting eleven causes of action: (1) disability discrimination in violation of the Fair Employment and Housing Act (FEHA, Gov. Code, § 12900 et seq.); (2) failure to engage in a good faith interactive process in violation of FEHA; (3) failure to accommodate in violation of FEHA; (4) retaliation in violation of FEHA; (5) failure to take reasonable steps to prevent discrimination in violation of FEHA; (6) interference in violation of the California Family Rights Act (CFRA, Gov. Code, § 12945.2); (7) retaliation in violation of CFRA; (8) discrimination in violation of CRFR; (9) violation of Labor Code section 1102.5; (10) violation of Labor Code section 98.6; and (11) wrongful termination in violation of public policy. All causes of action are asserted against Ritz-Carlton and Marriott; the ninth cause of action is the only cause of action asserted against Sotelo.

On September 19, 2024, Ritz-Carlton and Marriott filed their notice of removal of this action to federal Court.

On October 18, 2024, Rubio filed a first amended complaint (FAC) in federal Court. The FAC asserted the same eleven causes of action against the same parties.

On October 24, 2024, the federal Court issued its order of remand, filed with this Court on October 30. The order of remand explains that the sole basis for diversity jurisdiction asserted by Defendants was that the claim against Sotelo is improper and hence Sotelo was fraudulently joined to defeat diversity. As discussed below, the federal Court found sufficient uncertainty in the viability of the claim against Sotelo to warrant remand.

On December 17, 2024, Ritz-Carlton and Marriott filed their answer to the FAC generally denying the allegations thereof and asserting 48 affirmative defenses.

On January 24, 2025, Ritz-Carlton and Marriott filed a motion to compel arbitration of the claims against them. On March 12, Sotelo filed a joinder to the motion to compel arbitration. On April 23, the Court denied the motion to compel arbitration.

On May 8, 2025, Sotelo filed a demurrer to the FAC.

On July 2, 2025, pursuant to stipulation of the parties and order of the Court, Rubio filed his SAC. The SAC asserts ten causes of action: (1) disability discrimination in violation of the Fair Employment and Housing Act (FEHA, Gov. Code, § 12900 et seq.); (2) failure to engage in a good faith interactive process in violation of FEHA; (3) failure to accommodate in violation of FEHA; (4) retaliation in violation of FEHA; (5) failure to take reasonable steps to prevent discrimination in violation of FEHA; (6) interference in violation of the California Family Rights Act (CFRA, Gov. Code, § 12945.2); (7) retaliation in violation of CFRA; (8) violation of Labor Code section 1102.5; (9) violation of Labor Code section 98.6; and (10) wrongful termination in violation of public policy. All causes of action are asserted against Ritz-Carlton and Marriott; the eighth cause of action (formerly number ninth cause of action) is the only cause of action asserted against Sotelo.

On July 3, 2025, Sotelo withdrew the now-moot demurrer to the FAC.

On August 5, 2025, Ritz-Carlton and Marriott filed their answer to the SAC generally denying the allegations thereof and asserting 51 affirmative defenses.

Also on August 5, 2025, Sotelo filed this demurrer to the SAC.

On August 25, 2025, Rubio requested, and the Court entered, dismissal as to Marriott.

On September 17, 2025, Rubio filed opposition to Sotelo’s demurrer. In support of the opposition, Rubio also filed the declaration of attorney Ryan D. Handley.

On September 23, 2025, Sotelo filed his reply to the opposition to the demurrer.

Analysis

“ ‘The rules by which the sufficiency of a complaint is tested against a general demurrer are well settled. We not only treat the demurrer as admitting all material facts properly pleaded, but also ‘give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.’ ” (Zhang v. Superior Court (2013) 57 Cal.4th 364, 370, internal quotation marks and citations omitted.)

Sotelo’s notice of demurrer refers to the ninth cause of action as the sole cause of action asserted against Sotelo and subject to this demurrer. The numbering of causes of action changed from the FAC to the SAC. The applicable cause of action is the eighth cause of action. This confusion does not affect any of the substantive arguments of the parties, so the Court will deem the demurrer as applying to the eighth cause of action.

(1)       Requests for Judicial Notice

In support of the demurrer, Sotelo requests that the Court take judicial notice of: (Request for Judicial Notice, exhibit A) the FAC; and (exhibit B) a statute enacting amendments to Labor Code section 1102.5 (Stats. 2013, ch. 732). These requests for judicial notice are granted. (See Evid. Code, § 452, subds. (a), (b), (c), (d)(1).)

In opposition to the demurrer, Rubio attaches a declaration of counsel setting forth procedural history and attaching the federal Court order of remand. The procedural history recounted above is taken from the Court’s docket in this matter. The federal Court’s remand order is a document filed in this action after receipt from the federal Court. In the absence of a separate request for judicial notice (see Cal. Rules of Court, rule 3.1113(l)), the declaration of counsel does not add anything for the Court’s appropriate consideration on demurrer.

(2)       Labor Code Section 1102.5

The principal issue presented by this demurrer is whether Labor Code section 1102.5 provides civil liability to an individual Defendant.

As a prefatory matter, the Court agrees with Sotelo that the federal Court’s order of remand is not dispositive of the issue of the viability of a cause of action for damages against Sotelo. The federal district Court largely concluded both that the 2013 amendments to section 1102.5 do not impose personal liability on non-employees and that the law was unsettled and uncertain in the absence of any reported California decision addressing this issue. (Remand Order, filed Oct. 30, 2025, at p. 2.) Applying federal jurisdictional law, the federal Court only determined that the uncertainty was sufficient to require a remand. (Id. at pp. 2-3.) A finding of uncertainty in the law is not dispositive of the underlying issue of the viability of the claim.

“An employer, or any person acting on behalf of the employer, shall not make, adopt, or enforce any rule, regulation, or policy preventing an employee from disclosing information to a government or law enforcement agency, to a person with authority over the employee, or to another employee who has authority to investigate, discover, or correct the violation or noncompliance, or from providing information to, or testifying before, any public body conducting an investigation, hearing, or inquiry, if the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation, regardless of whether disclosing the information is part of the employee’s job duties.” (Lab. Code, § 1102.5, subd. (a).)

“An employer, or any person acting on behalf of the employer, shall not retaliate against an employee for disclosing information, or because the employer believes that the employee disclosed or may disclose information, to a government or law enforcement agency, to a person with authority over the employee or another employee who has the authority to investigate, discover, or correct the violation or noncompliance, or for providing information to, or testifying before, any public body conducting an investigation, hearing, or inquiry, if the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation, regardless of whether disclosing the information is part of the employee’s job duties.” (Lab. Code, § 1102.5, subd. (b).)

“An employer, or any person acting on behalf of the employer, shall not retaliate against an employee for refusing to participate in an activity that would result in a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation.” (Lab. Code, § 1102.5, subd. (c).)

“An employer, or any person acting on behalf of the employer, shall not retaliate against an employee for having exercised their rights under subdivision (a), (b), or (c) in any former employment.” (Lab. Code, § 1102.5, subd. (d).)

“Section 1102.5 provides whistleblower protections to employees who disclose wrongdoing to authorities. … ‘This provision,’ we have explained, ‘reflects the broad public policy interest in encouraging workplace whistle-blowers to report unlawful acts without fearing retaliation.’ [Citation.] An employee injured by prohibited retaliation may file a private suit for damages. [Citation.]” (Lawson v. PPG Architectural Finishes, Inc. (2022) 12 Cal.5th 703, 709 (Lawson).)

For the proposition that an employee has a private right of action under section 1102.5, Lawson cites to Labor Code section 1105 and Gardenhire v. Housing Authority (2000) 85 Cal.App.4th 236, 241 (Gardenhire).
 

As quoted above, the language of “or any person acting on behalf of the employer” is included in subdivisions (a), (b), (c), and (d). As discussed below, this language was added in 2013. This language is the statutory basis for Rubio’s claim against Sotelo.

Section 1105 provides: “Nothing in this chapter shall prevent the injured employee from recovering damages from his employer for injury suffered through a violation of this chapter.”

Gardenhire, decided in 2000 (and so before the 2013 amendments), states:

“Section 1103 states that an employer who violates the chapter which contains section 1102.5 is guilty of a misdemeanor punishable by imprisonment or fine. Section 1105 provides: “Nothing in this chapter shall prevent the injured employee from recovering damages from his employer for injury suffered through a violation of this chapter.” In Lockheed Aircraft Corp. v. Superior Court (1946) 28 Cal.2d 481, which involved section 1101, another provision in the same chapter that prevents employers from imposing prohibitions on employees engaging in political activity, the employer argued that the statute was penal in nature and did not create any civil right of action. The Court disagreed: ‘The contract of employment must be held to have been made in the light of, and to have incorporated, the provisions of existing law. [Citations.] Hence, upon violation of the section, an employee has a right of action for damages for breach of his employment contract.’ [Citation.]” (Gardenhire, supra, 85 Cal.App.4th at p. 241, parallel citation omitted.)

So, as the law stood prior to the 2013 amendments to section 1102.5, it was clear that the prohibitions of section 1102.5 subjected an employer to a private right of action for damages. In 2013, two complementary amendments to section 1102.5 added the “or any person acting on behalf of the employer” language, expanding the prohibitions beyond the employer. This language was added by three related statutes. (Stats. 2013, ch. 577, § 5; Stats. 2013, ch. 732, § 6; Stats. 2013, ch. 781, § 4.1.)

Rubio argues that there is a private right of action for damages as against a person acting on behalf of an employer for the same reason that there is a private right of action against an employer. Sotelo argues that there is no private right of action against a person acting on behalf of an employer because the language of section 1105 is limited to an employer and there is no statutory authorization expanding the liability to such other persons.

“ ‘[O]ur fundamental task ... is to determine the Legislature’s intent so as to effectuate the law’s purpose. We first examine the statutory language, giving it a plain and commonsense meaning. We do not examine that language in isolation, but in the context of the statutory framework as a whole in order to determine its scope and purpose and to harmonize the various parts of the enactment. If the language is clear, [we] must generally follow its plain meaning unless a literal interpretation would result in absurd consequences the Legislature did not intend. If the statutory language permits more than one reasonable interpretation, [we] may consider other aids, such as the statute’s purpose, legislative history, and public policy.’ [Citation.]” (Brown v. City of Inglewood (2025) 18 Cal.5th 33, 40, internal quotation marks omitted.)

The statutory language is not wholly clear in that there is a reasonable basis for applying either party’s interpretation of the statute. The employers and their agents (since 2013) are subject to the same prohibitions in section 1102.5. To the extent there is a private right of action against employers, it is reasonable to interpret the amendment as including a private right of action against the agents as well. On the other hand, section 1105 expressly addresses actions against employers and was not correspondingly amended to address actions against employees. This argument only goes so far, however, because section 1105 does not authorize private rights of action but instead negates a contrary argument that there was not a private right of action against employers (the only prohibited party at the time). Section 1105 would not have needed to be amended to include employer’s agents because the purpose of the language used in section 1105 had long been accomplished by judicial acknowledgement of a private right of action to sue for damages suffered by a violation of section 1102.5. (See Brown v. City of Inglewood, supra, 18 Cal.5th at p. 51 [“ ‘ “[T]he Legislature ‘ “is deemed to be aware of statutes and judicial decisions already in existence, and to have enacted or amended a statute in light thereof.” ’ ” ’ [Citation.]”].)

The legislative history does not dispose of this matter, either, but does suggest an intent to include liability against agents. As originally introduced, Assembly Bill No. 263 (A.B. 263) addressed only immigration-related discrimination and added a new Labor Code section 1171.7 to read in subdivision (a): “It shall be unlawful for an employer or any other person to engage in, or to direct another person to engage in, an unfair immigration-related document practice against a person for the purpose of, or with the intent of, retaliating against any person for exercising a right protected under this code or under a local ordinance applicable to employees.” (Assem. Bill No. 263 (2013-2014 Reg. Sess.) § 1, as introduced Feb. 17, 2013.)

As later amended, A.B. 263 expanded in scope, replacing the proposed new section 1171.7 with a new chapter 3.1 maintaining the prohibition against “an employer or other person or entity.” (Assem. Bill No. 263 (2013-2014 Reg. Sess.) § 3, as amended May 24, 2013.) The May 24 version proposed to amend section 1102.5, subdivision (a) to read: “An employer or any other person or entity may not make, adopt, or enforce any rule, regulation, or policy preventing an employee from disclosing information to a government or law enforcement agency, where the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation or noncompliance with a state or federal rule or regulation.” (Id., § 5.)

In reporting on the May 24 version of A.B. 263, the Senate Judiciary Committee commented:

“In a recent Assembly Committee on Labor and Employment informational hearing, employees testified that they feared retribution by their employers for making claims against their employers. These claims included seeking full payment of wages owed to the employees and prohibiting employees from participating in union meetings. The employees testified that they feared that, by testifying at the committee hearing and exposing the egregious conduct perpetrated by their employers, they would face termination by their employers or be reported by their employers to immigration authorities.

“Existing law, known as the Whistleblower Protection Statute (WPS), prohibits an employer from preventing an employee from disclosing information, or retaliating against an employee who discloses information to a government or law enforcement agency where the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation or noncompliance with a state or federal rule or regulation. (Lab. Code Sec. 1102.5.) This bill would additionally prohibit any other person or entity from preventing an employee from disclosing information to a government or law enforcement agency regarding employer violations of the law.

“Proponents assert that ‘those who might be willing to act as whistleblowers and expose unfair and illegal treatment worry they will be the cause of serious harm to their coworkers for calling attention to abuses. Meanwhile, employers who are following the law are at a competitive disadvantage against those that exploit workers.’ This bill seeks to encourage individuals to expose unlawful conduct, which furthers the underlying purpose of the WPS.” (Sen. Com. on Judiciary, Analysis of Assem. Bill No. 263 (2013-2014 Reg. Sess.) as amended May 24, 2013, pp. 12-13.)

Further, in addressing “Additional opposition concerns,” the committee reported: “A coalition of business groups also argues that the $10,000 penalty per employee for any retaliation or discrimination in this bill, in combination with unpaid wages and various other statutory penalties, would create a windfall for the employee, and potential financial devastation to the employer. Furthermore, the business coalition argues that it is inappropriate to create new rights and liability for ‘any person’ who retaliates against an employee for reporting an alleged violation of law because the Labor Code is primarily limited to regulating the employer/employee relationship, not the relationship between an employer and member of the public, or any other ‘person or entity.’ ” (Sen. Com. on Judiciary, Analysis of Assem. Bill No. 263 (2013-2014 Reg. Sess.) as amended May 24, 2013, p. 14.)

Apparently in response to this last point about creating “new rights and liability for ‘any person’ who retaliates against an employee,” A.B. 263 was amended in the Senate to replace in the proposed revision to section 1102.5 the “employer or any other person or entity” language with the present “employer, or any person acting on behalf of the employer.” (Assem. Bill No. 263 (2013-2014 Reg. Sess.) as amended Aug. 12, 2013, § 5.)

The following Senate Floor Analysis explained this part of the bill as “strengthen[ing] labor law protections for workers by enacting a number of provisions related to retaliation and unfair immigration-related practices. Specifically, this bill: [¶] … [¶]

“9.       Adds non-employers (any other person or entity) to the existing prohibitions [and penalties for non-compliance] applicable to employers that prevents them from:

“A.       Having a policy that prevents an employee from disclosing information to a government or law enforcement agency, as specified.

“B.       Retaliating against an employee for disclosing such protected information.

“C.       Retaliating against an employee for refusing to participate in an activity that resulted in a violation of state or federal statute, as specified.” (Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Assem. Bill No. 263 (2013-2014 Reg. Sess.) as amended Sept. 3, 2013, pp. 3, 5.)

The Legislature thus identified that “liability” needed to be more limited in the amendment to section 1102.5, amended the bill to reflect that narrowed liability to include agents, and noted that the non-employers were subject to the existing prohibitions and penalties for noncompliance applicable to employers. This sequence of amendments and comments is more consistent with a legislative intent to put employers and employers’ agents on an equal footing with respect to liability for noncompliance than with exempting employers’ agents from civil liability altogether. There is nothing in this legislative history to suggest an intent that employers’ agents would only be subject to criminal penalties for noncompliance.

More broadly, expanding civil liability to include the agents who retaliate promotes the legislative purpose of preventing retaliation. This may or may not be good public policy when weighed against the employment policies of making employees and agents personally liable for their illegal conduct, but that public policy decision is a legislative decision and not one for the Courts.

Based upon the language of section 1102.5, its legislative history, and its purpose, and in the absence of binding authority on this issue, the Court finds that an agent of an employer, such as Sotelo as alleged in the SAC, may be subject to civil liability under section 1102.5.

(3)       Pleading Violation of Section 1102.5

Sotelo argues that, if an action against a non-employer is viable under Labor Code section 1102.5, Rubio has nonetheless failed to allege sufficient facts to state that cause of action. “ ‘ “ ‘To establish a prima facie case of retaliation, a Plaintiff must show that she engaged in protected activity, that she was thereafter subjected to adverse employment action by her employer, and there was a causal link between the two.’ ” ’ [Citation.]” (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 287–288.)

Rubio alleges:

“At all times relevant herein, Plaintiff was an employee within the meaning of Labor Code Section 1102.5. Plaintiff engaged in activity protected by Labor Code Section 1102.5 by, inter alia, complaining internally to people with authority over Plaintiff and/or authority to investigate or correct the violation or noncompliance with a reasonable belief that the information disclosed potential violations of state statutes or regulations, including that Defendants were discriminating against Plaintiff because of his disability(s).” (SAC, ¶ 86.)

“Defendants knew and/or suspected that Plaintiff was engaged in the protected activity described above due to his complaints to Defendant’s managers, supervisors, and/or owners.” (SAC, ¶ 87.)

“In violation of Labor Code Section 1102.5, Defendants retaliated against Plaintiff for engaging in the protected activity described above and/or because Defendants suspected that Plaintiff was engaging in such protected activity, including by terminating his employment.” (SAC, ¶ 88.)

“[S]tatutory causes of action must be pleaded with particularity ….” (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 790.)

Rubio’s allegations are insufficiently specific to meet the pleading requirements for a statutory cause of action. As discussed above, section 1102.5 contains different subdivisions addressing different aspects of protected activity. The allegations of the eighth cause of action do not specify which subdivision applies or which facts are intended to meet which statutory element. In particular, while there are allegations that Rubio complained to Sotelo that he was being effectively fired because of his disability (SAC, ¶ 13), in order for Sotelo to be liable under section 1102.5, there must be allegations that Sotelo engaged in the improper conduct giving rise to liability under section 1102.5. The factual allegations in the eighth cause of action, whether or not incorporated by reference, do not link to the statutory elements as particularly applied to Sotelo. The Court will therefore sustain the demurrer to the eighth cause of action.

Based upon the arguments made by Rubio in opposition to the demurrer and the scattered allegations in the SAC, Rubio may be able to allege sufficient facts to state this cause of action. The Court will grant leave to amend.