Judge: Alison Mackenzie, Case: 20STCV27886, Date: 2024-02-20 Tentative Ruling
Case Number: 20STCV27886 Hearing Date: February 20, 2024 Dept: 55
NATURE OF PROCEEDINGS: Motion of Defendants for Judgment on the
Pleadings and Motion to Strike
The motion is denied.
The opposing request for sanctions is denied.
BACKGROUND
On 7/23/20, Plaintiff Gabriel Fajardo (“Plaintiff”) filed
this FEHA employment case against the City of Los Angeles, and City employee Adel
Hagekhalil (collectively, “Defendants”), alleging that Defendants subjected him
to harassment, discrimination, retaliation, and a hostile work environment
based on his race, disability, and taking family leave.
Defendants have filed a motion for judgment on the
pleadings as to the FAC, or, in the alternative, a motion to strike. Plaintiffs
oppose the motion.
LEGAL STANDARD
“Judgment on the pleadings is akin to a demurrer and
is properly granted only if the complaint does not state facts sufficient to
state a cause of action against that defendant. The grounds for the motion must
appear on the face of the complaint, and in any matters subject to judicial
notice. The court accepts as true all material factual allegations, giving them
a liberal construction, but it does not consider conclusions of fact or law,
opinions, speculation, or allegations contrary to law or judicially noticed
facts. Appellate courts review the record de novo to determine whether the
complaint states a cause of action as a matter of law.” Shea Homes Limited
Partnership v. County of Alameda (2003) 110 Cal.App.4th 1246, 1254; see
also CCP § 438. A motion for judgment on the pleadings does not lie as to only
part of a cause of action. Fire
Ins. Exch. v. Sup. Ct. (2004) 116 Cal.App.4th 446, 452.
ANALYSIS
Procedural Issues
Regarding timeliness, the Court has allowed this
motion to be set for hearing, in its discretion. (See 1/30/24 Minutes.) As for reconsidering
issues, that is allowed for non-statutory motions for judgment on the pleadings,
and the issues addressed in the prior demurrer and summary judgment differed
substantially (see 2/9/21 and 5/18/22 minutes), such that this is not really a
disguised motion for reconsideration.
Statute of Limitations
Defendants contend that, other than the 2019 car
accident that Plaintiff alleged about the City’s attempt to injure or kill him,
all other acts are time-barred by FEHA’s statute of limitations. (Mot. at 6.).
“A demurrer on the ground of the bar of the statute of
limitations will not lie where the action may be, but is not necessarily
barred.... It must appear clearly and affirmatively that, upon the face of the
complaint, the right of action is necessarily barred.... This will not be the
case unless the complaint alleges every fact which the defendant would be
required to prove if he were to plead the bar of the applicable statute of
limitation as an affirmative defense.” Lockley
v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal. App.
4th 875, 881 (internal quotation omitted). “[T]o prevail on a demurrer based on
the statute of limitations, a defendant must establish the entire cause of
action is untimely.” Pointe San Diego
Residential Community, L.P. v. Procopio, Cory, Hargreaves & Savitch, LLP
(2011) 195 Cal.App.4th 265, 274
Relevant here, a complaint for a violation of the FEHA
must be filed with the Department of Fair Employment and Housing (DFEH) within
one year from the date of the alleged law violation, with an exception for
delayed discovery. Morgan v. Regents
of Univ. of Cal. (2000) 88 Cal.App.4th 52, 63. A DFEH complaint is timely under the
continuing violations exception to the one-year deadline, “if discriminatory
practices occurring outside the limitations period continued into that
period.” Dominguez v. Washington
Mutual Bank (2008) 168 Cal. App. 4th 714, 720-21. Continuing violations,
tolling the statute of limitations, exist where employers’ acts (1) were
similar, (2) occurred with reasonable frequency, and (3) have not become
permanent, such that it would be clear to a reasonable employee that further
efforts at informal conciliation to obtain reasonable accommodation or end
harassment, would be futile. Richards v. CH2M Hill, Inc. (2001) 26 Cal. 4th
798, 823. “[A]bsent the employer’s cessation of the unlawful conduct or the
employee’s separation from service, permanence would be achieved when an
employer's statements and actions make clear to a reasonable employee that any
further efforts at informal conciliation to obtain reasonable accommodation or
end harassment will be futile.” Cucuzza v. City of Santa Clara
(2002) 104 Cal. App. 4th 1031, 1042 (internal quotation omitted, emphasis I
original). “If the employer’s actions
were sufficiently similar and reasonably frequent the actions will be deemed a
continuing course of conduct rather than separate acts of misconduct, and the
statute of limitations would not bar an offending employer’s liability for even
its earliest failure to accommodate.” Id. at 1041.
Here, the FAC contains allegations supporting
conclusions of continuing violations done without permanence, and including
some conduct within the one-year Statute of Limitations, in relation to the
Complaint filed on 7/23/20 (e.g., F.A.C., 5:1-4
(“City managers engaged in a continuous course of adverse employment
actions, including conduct which discriminated, harassed and retaliated….”); 6:4-7
(“on July 24, 2019, which was 13—business days after the City
appropriated $15,000,000 to resolved the Pearl racial discrimination,
harassment and retaliation judgment, City managers promptly, willfully and
deliberately and in conscious disregard of Fajardo’s health, safety and life,
“set up” Fajardo to become seriously injured,….”); 9:17-19
(“From April 2007, to present, Fajardo, a single father, exercised his CFRA/FMLA
statutory rights when he applied for and the City approved his eligibility for CFRA/FMLA
benefits….”); 9:28-10:2 (“City managers engaged in an ongoing,
continuous, persistent series of acts and events which discriminated, harassed
and retaliated against Fajardo directly related to his exercise of his CFRA/FMLA
statutory rights.”); 24:23-25 (“Fajardo continues to be intentionally
harassed and retaliated against by upper management, including Hagekhalil, or
at his direction, after his successful prosecution of his FEHA/CFRA/FMLA
lawsuit; 32:25-26 (“It was the City’s practice and policy that
no adverse employment action would be taken against any employee who made a
good faith report….”); 37:9-10 (“On July 22, 2019, Fajardo received his
statutory DFEH ‘Right—to—Sue.’ ” ); and
44:18-20 (“On multiple occasions from
October 2013 through July 24, 2019, to present and continuing, City managers,
including Hagekhalil, engaged in and/or allowed a concerted pattern of workplace
discrimination, harassment….”)).
The full context of such allegations in the FAC does
not reveal the expiration of the statute of limitations in relation to the
continuing violations rule. The
allegations portray a continuous and similar pattern in which management was always
out to discriminate and retaliate against Plaintiff, in retaliation for all the
many protected activities and communications he did throughout the years, while
at the same time, management had policies in place to prevent such
discrimination that could give an employee like Plaintiff hope that employment
violations were not permanent.
Thus, there is no basis to grant judgment on the
pleadings, or to strike allegations, related to untimely conduct.
Duplicative Claims
Defendants assert that the first, third, sixth, and
eighth through tenth causes of action allege retaliation in violation of FEHA
and are duplicative because they all share the same set of adverse employment
actions. (Mot., 9:27-10:2.)
A demurrer may be sustained as to a claim that
duplicates another. Holcomb v. Wells
Fargo Bank, NA (2007) 155 Cal.App.4th 490, 501 (negligence allegations
duplicative of negligent misrepresentation). But see Blickman
Turkus, LP v. MF Downtown Sunnyvale, LLC (2008) 162 Cal.App.4th 858,
890 (that a claim is duplicative is not a ground upon which demurrers
may be sustained); Tracfone Wireless,
Inc. v. L. A. County (2008) 163 Cal.App.4th 1359, 1368 (if one cause of
action of a complaint, restating duplicative causes of action, is good as
against a general demurrer, then all of them will stand).
The FAC contains distinctly separated causes of
action, arranged by types of cognizable claims having different claim elements (e.g.,
discrimination, harassment, and retaliation along with different cited
statutory sections). The claims at issue contain different facts of alleged
employment law violations, including testifying, leave for healthcare needs, employee
race, communicated complaints, employee disability, and workers compensation. (FAC, pp. 39-62.) Any duplication of alleged types of adverse
employment actions does not take into consideration the different claim
elements and differing conduct of Plaintiff. As such, none of the causes of action appear
to be fully duplicative. The Court therefore exercises its discretion to deny a
MJOP and/or motion to strike on the ground of duplication.
CONCLUSION
The Court denies the MJOP and motion to strike. Plaintiff’s request for sanctions under
Section 128.7 fails to be based upon a motion after requisite notice. “[T]o comply with the safe harbor provisions
of section 128.7, a party may not bring a motion for sanctions unless there is
some action that the offending party may take to withdraw the improper
pleading.” Martorana v. Marlin &
Saltzman (2009) 175 Cal. App. 4th 685, 699.
A failure to comply with safe-harbor provisions precludes an award of
sanctions under Code of Civil Procedure Section 128.7. Id., at 700.