Judge: Alison Mackenzie, Case: 22STCV13246, Date: 2024-01-10 Tentative Ruling
Case Number: 22STCV13246 Hearing Date: January 10, 2024 Dept: 55
NATURE OF PROCEEDINGS: Defendant ABC Unified School District’s (1)
Motion for Judgment on the Pleadings and (2) Motion for Separate Trial of
Plaintiff Theresa Montegnegro’s Fourth, Fifth, Sixth and Seventh Claims
Defendant ABC Unified School District’s Motion for
Judgment on the Pleadings is GRANTED with prejudice as to the 1st
cause of action for violation of the California Equal Pay Act (Labor Code
§1197.5) and DENIED as to the 2nd cause of action for sex status
discrimination (in violation of Gov. C. §12940, et seq.) and the 8th
cause of action for failure to prevent discrimination.
Defendant’s Request for Judicial Notice is GRANTED.
Defendant ABC Unified School District’s Motion for
Separate Trial of Plaintiff Montenegro’s Fourth, Fifth, Sixth and Seventh
Claims is GRANTED pursuant CCP §1048(b).
Plaintiffs Maria Cota, Judi Dixon, Linda Harbin, and
Theresa Montenegro filed their First Amended Complaint against Defendant ABC
Unified School District (“ABC School District”) alleging claims arising out of
their work as Cafeteria Manager IIs with ABC School District. Plaintiffs allege
that ABC School District paid them less than other male employees in similar jobs,
and Plaintiff Montenegro alleges that ABC School District discriminated against
her based on her disability (torn meniscus in her left knee) and refused to
reasonably accommodate her disability. Plaintiffs’ FAC alleges the following
causes of action based on the unequal pay allegations: (1) violation of the California Equal Pay Act
(Labor Code §1197.5, et seq.); (2) sex status discrimination (in violation of
Government Code §§12940, et seq.); (3) retaliation in violation of Government
code §1102.5; (8) failure to prevent discrimination, harassment and retaliation
in violation of Government Code §12940(k); and (9) for declaratory judgment. Plaintiff
Montenegro separately alleges the following claims: (4) discrimination in
violation of Government Code §§12940, et seq.; (5) retaliation in violation of Government
Code §§12940, et seq.; (6) failure to provide reasonable accommodation in
violation of Government Code §§12940, et seq.; and (7) failure to engage in a
good-faith interactive process in violation of Government Code §§12940, et seq.
ABC School District filed (1) a Motion for Judgment on
the Pleadings of the 1st cause of action for violation of the
California Equal Pay Act, 2nd cause of action for sex status
discrimination and 8th cause of action for failure to prevent
discrimination, harassment, and retaliation in violation of Government Code
§12940(k) and (2) a Motion to Sever.
Plaintiffs oppose both motions.
MOTION FOR JUDGMENT ON
THE PLEADINGS
“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.
1st cause of
action for violation of the California Equal Pay Act
ABC School District moves for judgment on the
pleadings of the 1st cause of action for violation of the California
Equal Pay Act (Labor Code §1197.5), arguing that Plaintiffs did not file a
claim with ABC School District as required under the Tort Claims Act, nor are
they relieved from the claims requirement due to the nature of their
claim.
Subject to certain exceptions set forth in Government
Code Section 905 (“Section 905”), a plaintiff suing a public entity must first
present a timely written claim for damages to the entity. Gov’t Code § 945.4; Johnson
v. San Diego Unified Sch. Dist. (1990) 217 Cal.App.3d 692, 696. Section 905(c)
provides an exception to the claims presentation requirement for “[c]laims by
public employees for fees, salaries, wages, mileage, or other expenses and
allowances.” (Government Code §905(c).) “The exception to the claim filing
requirements of Government Code section 900 et seq. quoted above relates only
to claims which are not based on contractual or tortious theories of recovery.”
California School Employees Assn. v. Azusa Unified School Dist. (1984)
152 Cal.App.3d 580, 586.
Plaintiffs’ first cause of action seeks damages for
violation of Labor Code §1197.5, which prohibits discrimination based on sex
for substantially similar work. This claim is properly characterized as seeking
monetary damages based on an alleged statutory violation. Section §905(c),
which exempts claims for earned wages, income, benefits, or salary from the claims
presentation requirement, does not apply. Section 905(c) exempts from the Act “claims
for salaries and wages which have been earned but not paid. Earned but unpaid
salary or wages are vested property rights, claims for which may not be
properly characterized as actions for monetary damages.” Loehr v. Ventura
Cnty. Cmty. Coll. Dist., 147 Cal.App.3d 1071, 1080.
The Court disagrees with Plaintiffs’ contention that
the administrative process for claims alleging violation of Labor Code §1197.5
takes this cause of action out of the scope of the claims presentation
requirement. “The limited exceptions set forth in section 905 have, for the
most part, been narrowly construed.” (Id.
at 1080.) “[C]ommentators have
construed the section 905 exceptions as essentially non-tortious claims for
which some other adequate claims procedure has already been devised, or for
which the procedural protection of the Tort Claims Act is believed to be
unnecessary.” Gatto v. County of Sonoma (2002) 98 Cal.App.4th 744,
763. “Exceptions to the filing requirement not specifically enumerated in the
Government Claims Act have occasionally been allowed, but only where the claim
is based on a statute or statutory scheme that includes a functionally
equivalent claim process.” (Id.
at 765 (citing Snipes v. City of Bakerfield (1983) 145
Cal.App.3d 861, 867.)
Thus, in Snipes v. City of Bakersfield, the
Court of Appeal found the Government Tort Claims Act did not apply to FEHA
claims, because the Legislature implemented an extensive pre-litigation claims
process unique to FEHA claims and that process would achieve the same purpose
as the Government Tort Claims Act. (Snipes,
supra, 145 Cal.App.3d at 867-869.)
“The purposes of the general claims presentation requirement are to give
the governmental entity an opportunity to settle claims before suit is brought,
to permit early investigation of the facts, to facilitate fiscal planning for
potential liabilities, and to avoid similar liabilities in the future. The provisions of the FEHA for filing of a
complaint with the department, administrative investigation, and service of the
complaint on the employer serve a similar function.” (Snipes, supra,
145 Cal.App.3d at 869.)
Here, unlike in a FEHA claim, there is no
administrative process that Plaintiffs must satisfy prior to filing that would
fulfill the purpose of the general claims presentation requirement under the
Government Tort Claims Act. Plaintiffs can pursue a case for violation of Labor
Code §1197.5 without exhausting any administrative remedies. The administrative
process whereby an aggrieved employee may file a complaint with the DLSE (but
does not have to) simply does not satisfy the purpose of the claims
presentation requirement, which includes providing the government entity with
an opportunity to resolve the aggrieved person’s claim before suit is brought.
Finally, even if Section §905(c) applied to the first
cause of action, Section 935 provides that claims exempted under Section 905 are
still subject to any claims presentation requirement adopted by the local
government entity. Here, ABC School District has adopted Board Policy 3320(a)
and Administrative Regulation 3320(a)-(b).
(Defendant’s RJN, Ex. 3.) The
statutory claims requirement scheme under the Government Tort Claims Act (Gov.
C. §905, et seq.) was fully incorporated into Administrative Regulation
3320(a)-(b) and claimants were required to present any claim for money or
damages to the Governing Board no later than either six months or one year
after accrual of the cause of action, depending on the nature of the
claim. (Defendant’s RJN, Ex. 3, PDF p.
124/144.)
The Court therefore concludes that Plaintiffs were
required to file a claim with ABC School District for violation of Labor Code
§1197.5 prior to filing this lawsuit.
Plaintiffs were required to allege compliance with the Government Tort
Claims Act as an element of its first a cause of action. “Where compliance with the Tort Claims Act is
required, the plaintiff must allege compliance or circumstances excusing
compliance, or the complaint is subject to general demurrer.” Snipes, supra, 145 Cal.App.3d at
865. Plaintiffs fail to allege compliance with the Tort Claims Act, nor do they
establish in opposition facts indicating that this defect can be cured with
leave to amend. Hendy v. Losse (1991) 54 Cal.3d 723, 742.
ABC School District’s Motion for Judgment on the
Pleadings of the first cause of action for violation of Labor Code §1197.5 is
GRANTED without leave to amend.
2nd
cause of action for sex status discrimination (Gov. C. §12940, et seq.) and 8th
cause of action for failure to prevent discrimination, harassment and
retaliation in violation of Gov. C. §12940(k)
ABC School District argues that the second cause of
action for sex status discrimination under Gov. C. §12940, et seq. and the
eighth cause of action for failure to prevent discrimination, harassment, and
retaliation in violation of Gov. C. §12940(k), are time-barred. ABC School District submits for judicial
notice the complaints that Plaintiffs filed with the Civil Rights Department
and their “right to sue” letters dated in 2020, two years before they filed
suit in 2022.
A demurrer or motion for judgment on the pleadings based
on statute of limitations can only be sustained where the dates on the face of
the complaint clearly and affirmatively establish that the action is
time-barred. Roman v. County of Los
Angeles (2000) 85 Cal.App.4th 316, 324-325.
Plaintiffs allege that they obtained their
right-to-sue letters from the Civil Rights Department on January 31, 2022. (FAC, ¶9.)
Plaintiffs’ action was filed on April 22, 2022. Plaintiffs’ action was therefore timely filed
within one year of the January 31, 2022 letter, and ABC School District does
not claim that Plaintiffs’ civil action is untimely as to those actions covered
by the January 31, 2022 right-to-sue notice. Rather, ABC School District is
arguing that Plaintiffs’ civil action is untimely as to those discriminatory
acts encompassed by the 2019 and 2019 CRD complaints by Plaintiffs Cota, Dixon,
and Harbin.
Government Code §12965 “establishes a strict one-year
statute of limitations, commencing from the date of the right-to-sue notice by
the DFEH, except for certain statutory exceptions. (§ 12965, subd. (d).)
Section 12965’s one-year deadline from the right-to-sue notice is a condition
on a substantive right rather than a procedural limitation period for
commencement of an action. Thus, it
causes the right which previously arose and on which a suit could have been
maintained, to expire.” Acuna v. San Diego Gas & Elec. Co.
(2013) 217 Cal.App.4th 1402, 1413.
Plaintiffs argue that their second and eighth causes
of action are timely due to the continuing violations rule, but they have not
cited any authority applying the continuing violations doctrine to the
limitations period under Government Code §12965(c)(1)(A), formerly Government
Code §12965(b), requiring that an aggrieved party file a civil action within
one year of receiving the right-to-sue notice from the Civil Rights Department. The cases of Richards v CH2M Hill, Inc.
(2001) 26 Cal. 4th 798, 823 and Birchstein v. New United Motor Mfg. Inc.
(2001) 92 Cal.App.4th 994, 1003 applied the continuing violations
doctrine to the one-year limitations period under Government Code §12960
applicable to the filing of a complaint with the Civil Rights Department. “FEHA claims are governed by two statutory
deadlines: section 12960 and section 12965.”
Acuna, supra, 217 Cal.App.4th at 1413. Neither Richards
nor Birchstein addressed the point raised by ABC School
District regarding the timeliness of Plaintiffs’ complaint under Government
Code §12965.
However, even if some of ABC School District’s alleged
conduct fell outside the recoverable period under Government Code §12965, the MJOP
could not be granted on that basis as a demurrer cannot be brought as to part
of a cause of action. Daniels v. Select Portfolio Servicing, Inc.
(2016) 246 Cal.App.4th 1150, 1167 (disapproved on other grounds by Sheen v.
Wells Fargo Bank, N.A. (2022) 12 Cal.5th 905, 948.) Plaintiffs’ second and eighth causes of
action are undisputedly based in part on conduct covered by the January 31,
2022 letter, which is not time barred by the limitations period under
Government Code §12965(c)(1)(A). (Acuna,
supra, 217 Cal.App.4th at 1419-1420 (although disability and
racial discrimination claims were untimely, retaliation claim was timely filed
within one year of receiving right to sue letter under Gov. C. §12965 and trial
court erred in sustaining demurrer without leave to amend as to all claims
based on untimeliness.)
ABC School District asks in the alternative that the
claim be stricken as to conduct and damages preceding the 2020 right-to-sue
notices. ABC School District did not
move to strike pursuant to CCP §436, nor is it clear what precise allegations ABC
School District would like stricken.
Finally, those allegations pertaining to the pre-2020 right-to-sue
notices are not “irrelevant,” “false” or “improper” under CCP §436. At the very least, those allegations
pertaining to conduct predating the 2020 notices are relevant background.
In addition, the Court cannot determine the
applicability of the equitable tolling doctrine on the face of the
complaint. Plaintiffs were required to
file a complaint based on the 2020 right-to-sue notices within a year of those
dates, i.e. January 16, 2021 and February 24, 2021. Based on Plaintiffs’ FAC, Plaintiffs were
pursuing an alternative procedural remedy through ABC School District’s
internal complaint system from June 23, 2020 through October 21, 2020, and then
were told by ABC School District that a study would be commissioned to address
Plaintiffs’ claims of sex-based pay discrimination. (FAC, ¶¶17-19, 23.) The outcome of the study was not issued until
September 21, 2021. (FAC, ¶23.) The
Court cannot state as a matter of law, based on these allegations, that
equitable tolling would not apply to any of the time period from June 23, 2020 through
September 21, 2021. Acuna is
distinguishable on this point, because the plaintiff in Acuna “failed to
allege any facts that she was pursuing an alternate remedy that excused her
from timely filing her administrative claim and/or from filing her lawsuit.” (Acuna, supra, 217 Cal.App.4th
at 1416.)
ABC School District’s Motion for Judgment on the
Pleadings of the second cause of action for sex-based discrimination and eight
cause of action for failure to prevent discrimination therefore is DENIED.
MOTION
FOR A SEPARATE TRIAL OF PLAINTIFF THERESA MONTENEGRO’S FOURTH, FIFTH, SIXTH AND
SEVENTH CLAIMS
ABC School District moves for an order for a separate
trial of Plaintiff Montenegro’s fourth, fifth, sixth and seventh causes of
action (the “Disability Claims”) pursuant to CCP §1048(b). CCP §1048(b) provides that the court may order
a separate trial of any cause of action “in furtherance of convenience or to
avoid prejudice, or when separate trials will be conducive to expedition and
economy.”
Plaintiff Montenegro’s Disability Claims are both
factually and legally distinct from the rest of the claims in the case. The
Disability Claims pertain to Montenegro’s disability and Defendants’ alleged
discrimination, retaliation, failure to provide reasonable accommodations and
failure to engage in good faith interactive process as to that disability. In
contrast, the remaining causes of action concern Plaintiffs’ collective
allegations about unequal pay (the “Collective Pay Claims”). The only overlap between these two sets of
claims is (1) the same defendant and (2) Montenegro’s status as a
Plaintiff. Because the Disability Claims
and Collective Pay Claims are based on entirely distinct alleged wrongdoing, different
sections of FEHA and Montenegro is the only plaintiff on the Disability Claims,
the parties will necessarily need to present different evidence for each set of
claims. Plaintiffs do not identify any overlap between the facts and evidence
that will be presented in support of the Disability Claims and the Collective
Pay Claims. This set up of two completely different sets of facts and evidence will
likely confuse the jury and make it difficult for them to evaluate the Disability
Claims and the Collective Pay Claims fairly. The Court is also concerned that keeping
the Disability Claims with the Collective Pay Claims in one trial will be inefficient
because of the time spent clarifying which evidence goes to which claim. Any additional burden because of severance of
the Disability Claims would fall only on Montenegro and Montenegro fails to
establish that this additional burden justifies trying the two distinct sets of
claims together. As such, the motion for
a separate trial of Plaintiff Montenegro’s Disability Claims is GRANTED.
Conclusion
Defendant ABC Unified School District’s Motion for
Judgment on the Pleadings is GRANTED without leave to amend as to the 1st
cause of action for violation of Labor Code §1197.5 and DENIED as to the 2nd
cause of action for sex status discrimination (in violation of Gov. C. §12940,
et seq.) and the 8th cause of action for failure to prevent
discrimination, harassment and retaliation in violation of Gov. C.
§12940(k).
Defendant ABC Unified School District’s Motion for
Separate Trial of Plaintiff Montenegro’s Fourth, Fifth, Sixth and Seventh
Claims is GRANTED pursuant CCP §1048(b).