NATURE OF PROCEEDINGS: Hearing on Defendant's Demurrer - with Motion to Strike and Defendant’s Motion for Terminating Sanctions

 

Defendant's Demurrer is sustained with leave to amend. The motion to strike is denied as moot. Defendant’s Motion for Terminating Sanctions is denied. On the Court’s own motion, the action is stayed pending resolution of the lead case.

 

BACKGROUND

In this case, Plaintiff Roderick Corprue (“Plaintiff”) has sued the City of Lawndale (“Defendant”) alleging that he encountered employment discrimination and retaliation and endured labor law violation during his employment with Defendant occurring on and after June 22, 2022. The operative claims in the Complaint are: (1) Violation of the Fair Employment and Housing Act (“FEHA”) –Discrimination based on Race, Age and Disability/Perceived Disability; (2) Violation of FEHA – Harassment based on Race, Age and Disability/Perceived Disability; (3) Violation of FEHA – Retaliation; (4) Violation of FEHA – Failure to Engage in the Interactive Process; (5) Violation of FEHA – Failure to Accommodate; (6) Violation of FEHA – Failure to Prevent/Investigate; (8) Violation of Labor Code § 1102.5; (9) Violation of the California Family Rights Act; (11) Violation of Labor Code § 6310; and (12) Violation of Labor Code § 6311.

On 10/11/24, the present action was related to LASC Case No 20STCV14617 (Roderick Corprue v. City of Lawndale et. al.) (hereinafter, the “lead case”). In the lead case, Plaintiff sued City, Johnny Calderon, and Kahono Oei for employment discrimination. On 6/23/22, the Court denied the defendants’ motion for summary judgment, and granted in part and denied in part the defendants’ motion for summary adjudication with respect to Plaintiff’s Second Amended Complaint. After the 6/23/22 order, the remaining clams alleged violations of the FEHA (discrimination, harassment, retaliation, failure to prevent, promptly investigate and correct FEHA violations, failure to engage in the interactive process, and failure to accommodate) based on disability for conduct that occurred within one year of Plaintiff’s 3/20/20 DFEH Complaint. The Court specifically granted summary adjudication against Plaintiff with respect to his claims for violation of the FEHA based on race and age along with other claims for violation of the CFRA, violation of Labor Code Section 1102.5, and defamation. Thereafter, on 8/1/23, the Court granted Plaintiff’s motion to file a Third Amended Complaint in the lead case, and in doing so, the Court clarified that, while Plaintiff could reallege summarily adjudicated claims to avoid waivers on appeal, those issues summarily adjudicated could not be relitigated merely because such allegations were contained in the amended pleading.

This tentative ruling addresses both the demurrer and the motion for sanctions.

 

REQUEST FOR JUDICIAL NOTICE

Defendant requests the Court take judicial notice of court records in the lead case in connection with the sanctions motion and the demurrer. The Court grants Defendant’s request for judicial notice of these California court records under Evidence Code section 452, subd (d)(1).

Additionally, in connection with the demurrer, Defendant requests the Court take judicial notice of the following documents:

1.      Exhibit “I”: Plaintiff’s August 5, 2024 government tort claim presented to defendant.

2.      Exhibit “J”: Plaintiff’s August 7, 2024 complaint to the California Civil Rights Department with Notice of Case Closure and Right to Sue in CRD case no. 2024408-25724807.

The Court grants this request under Evidence Code section 452, subdivision (c). Evid. Code, § 452, subd. (c) (permitting judicial notice of “[o]fficial acts of the legislative, executive, and judicial departments of the United States and of any state of the United States); Gong v. City of Rosemead (2014) 226 Cal.App.4th 363, 376 (“If a plaintiff alleges compliance with the claims presentation requirement, but the public records do not reflect compliance, the governmental entity can request the court to take judicial notice under Evidence Code section 452, subdivision (c) that the entity's records do not show compliance.” )

 

LEGAL STANDARD

When considering demurrers, courts read the allegations liberally and in context. Wilson v. Transit Authority of City of Sacramento (1962) 199 Cal.App.2d 716, 720-21. In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994. “A demurrer tests the pleading alone, and not on the evidence or facts alleged.” E-Fab, Inc. v. Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315. The court assumes the truth of the complaint’s properly pleaded or implied factual allegations. Ibid. However, it does not accept as true deductions, contentions, or conclusions of law or fact. Stonehouse Homes LLC v. City of Sierra Madre (2008) 167 Cal.App.4th 531, 538.

Further, the court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. Code Civ. Proc., § 436(a). The court may also strike all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. Id., § 436(b).

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 (court shall not "sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment"); Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1037 ("A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment."). The burden is on the complainant to show the court that a pleading can be amended successfully. Blank v. Kirwan (1985) 39 Cal.3d 311, 318.

Pursuant to Code of Civil Procedure § 128.7(b), an attorney or party must certify through their signature the following regarding the pleading, petition notices of motion, and other similar papers submitted: (1) they are not being presented for an improper purpose; (2) the legal contentions are warranted by law or non-frivolous argument for extension, modification or reversal of existing law; (3) the allegations and factual contentions have evidentiary support or are likely to have such support after a reasonable opportunity to further investigate; and (4) the denials of factual contentions are warranted by the evidence.¿

Under Code of Civil Procedure § 128.7(c), the Court may award sanctions against a party or attorney who has violated section 128.7(b).

ANALYSIS

A. Res Judicata and Collateral Estoppel

Defendant argues in the demurrer that Plaintiff’s first, second, third, and sixth causes of action for FEHA violations based on Plaintiff’s race and age fail to raise any new facts arising after the Third Amended Complaint in the first action and are barred by res judicata. In its sanctions motion, Defendant contends that the entire Complaint is frivolous because it is barred by res judicata and presented for an improper purpose to harass, cause unnecessary delay and expense.  

“‘Res judicata’ describes the preclusive effect of a final judgment on the merits. Res judicata, or claim preclusion, prevents relitigation of the same cause of action in a second suit between the same parties or parties in privity with them. Collateral estoppel, or issue preclusion, ‘precludes relitigation of issues argued and decided in prior proceedings.’ Under the doctrine of res judicata, if a plaintiff prevails in an action, the cause is merged into the judgment and may not be asserted in a subsequent lawsuit; a judgment for the defendant serves as a bar to further litigation of the same cause of action.” Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 896-897 ( quoting Lucido v. Superior Court (1990) 51 Cal.3d 335, 341.)

1. Claim Preclusion

“California law is settled that pending appeal a trial court judgment is not final and will not be given res judicata effect.” Sandoval v. Superior Court (1983) 140 Cal.App.3d 932, 936 (Sandoval); see Code Civ. Proc. § 1049 (“An action is deemed to be pending from the time of its commencement until its final determination upon appeal, or until the time for appeal has passed, unless the judgment is sooner satisfied.”).

Here, there is no final judgment on the merits in the lead case. Summary adjudication is not a judgment; no judgment has been entered, and the time to appeal has not passed. Accordingly, there can be no claim preclusion based on the lead case.  

2. Issue Preclusion

“[F]or purposes of issue preclusion, as opposed to res judicata, ‘“final judgment’ includes any prior adjudication of an issue in another action that is determined to be sufficiently firm to be accorded conclusive effect.” Border Business Park, Inc. v. City of San Diego (2006) 142 Cal.App.4th 1538, 1564 (quoting Rest.2d Judgments, § 13) (citations omitted). “A prior adjudication of an issue in another action may be deemed ‘sufficiently firm’ to be accorded preclusive effect based on the following factors: (1) whether the decision was not avowedly tentative; (2) whether the parties were fully heard; (3) whether the court supported its decision with a reasoned opinion; and (4) whether the decision was subject to an appeal.” Id. at p. 165 (citing Sandoval, supra, 140 Cal.App.3d at p. 936.

As with claim preclusion, the fact that the Court’s grant of summary adjunction has not yet been subject to appeal prevents it from having preclusive effect.

Additionally, summary adjudication does not give rise to issue preclusion because it does not decide issues or establish facts. In Raghavan v. Boeing Co. (2005) 133 Cal.App.4th 1120, 1134, the court held that “[u]nder the summary judgment statute (§ 437c), a trial court may not instruct the jury as to any ‘factual issue’ because, in ruling on a motion, the trial court does not adjudicate such ‘issues.’” In reaching that conclusion, the court noted that “[a]s of 1989, the summary judgment statute permitted the summary adjudication of virtually any ‘issue’ in a case”, but “in 1990, the statute was amended to limit—and still limits—summary adjudication motions to the disposition of one or more causes of action, affirmative defenses, claims for damages, or issues of duty.” Raghavan, supra, 133 Cal.App.4th at p. 1135. “An amendment in 1993 added: ‘In the trial of the action, the fact that a motion for summary adjudication is granted as to one or more causes of action … shall not operate to bar any cause of action.… as to which summary adjudication was either not sought or denied.’” Id. at p. 1135-1136. “As a result of the 1990 amendment, ‘facts’ of any kind—undisputed, underlying, supporting, or subsidiary—were no longer subject to summary adjudication.” Id. at p. 1136 (citations omitted). The only effect of the summary adjudication is to “remove[] from the case ‘a separate theory of liability’….” Id. at p. 1137 (quoting Catalano v. Superior Court (2000) 82 Cal.App.4th 91, 96, italics omitted). Accordingly, the court concluded, “summary adjudication shall have no preclusive effect during the subsequent trial.”

While Raghavan concerned a trial court’s erroneous jury instructions commenting on the preclusive effects of its grant of summary adjudication, its reasoning is equally applicable here. The Court’s decision to grant summary adjudication in the lead case only limits Defendant’s liability regarding those causes of action. While any resulting judgment in the lead case may have a preclusive effect in this case, the summary adjudications on their own do not. Accordingly, Defendant’s demurrer on the basis of res judicata is overruled. Similarly, Defendant’s contention that the doctrine of res judicata renders this Complaint frivolous fails. Res judicata does not apply with respect to the lead case and thus cannot form the basis for a 128.7 sanctions motion with respect to this case.

B. Duplicative Claims

Additionally, Defendant argues that Plaintiff’s first, second, third, fourth, fifth, and sixth causes of action for FEHA violations based on disability are barred because they are duplicative of the causes of action in the lead case.

Code of Civil Procedure section 430.10, subdivision (c) allows demurrer on the ground that “[t]here is another action pending between the same parties on the same cause of action.” “[T]he only relief to which a litigant is entitled upon a successful demurrer based upon the pendency of another action between the same parties on the same cause of action, is an order that the second proceeding abate.” Hale v. Farrell (1981) 115 Cal.App.3d 164, 166.

“‘A plea in abatement is essentially a request -- not that an action be terminated -- but that it be continued until such time as there has been a disposition of the first action.’” Lawyers Title Ins. Corp. v. Superior Court (1984) 151 Cal.App.3d 455, 459 (quoting Shuffer v. Board of Trustees (1977) 67 Cal.App.3d 208, 217).

“The pendency of another earlier action growing out of the same transaction and between the same parties is a ground for abatement of the second action. The defendant may assert the pending action as a bar either by demurrer, or where fact issues must be resolved, by answer. In either case, where the court determines there is another action pending raising substantially the same issues between the same parties, it is to enter the interlocutory judgment specified in Code of Civil Procedure section 597.” Leadford v. Leadford (1992) 6 Cal.App.4th 571, 574 (citations omitted). “Abatement of the second action is a matter of right. A trial court has no discretion to allow the second action to proceed if it finds the first involves substantially the same controversy between the same parties. Ibid (cation omitted).

“In order that a second action be abated because of the pendency of a prior action, it is elementary that the issues in the two actions must be substantially the same. In determining this question, the test applied is whether a final judgment in the first action could be pleaded in bar as a former adjudication.” Trickey v. Long Beach (1951) 101 Cal.App.2d 871, 881. “A prior decision precludes relitigation of issues under the doctrine of collateral estoppel only if five threshold requirements are satisfied. ‘First, the issue sought to be precluded from relitigation must be identical to that decided in a former proceeding. Second, this issue must have been actually litigated in the former proceeding. Third, it must have been necessarily decided in the former proceeding. Fourth, the decision in the former proceeding must be final and on the merits. Finally, the party against whom preclusion is sought must be the same as, or in privity with, the party to the former proceeding.’” Kaur v. Foster Poultry Farms LLC (2022) 83 Cal.App.5th 320, 348-349 (quoting Lucido v. Superior Court (1990) 51 Cal.3d 335, 341). “The party asserting collateral estoppel bears the burden of establishing these requirements.” Id. at p. 340 (citations omitted).

Here, Plaintiff alleges in counts 1-6 of each case that “Defendant violated the FEHA by committing acts, including but not limited to treating Plaintiff differently in terms and conditions of employment due to his disability/perceived disability, subjecting him to harassment, discrimination, and retaliation including without limitation wrongfully refusing to promote Plaintiff due to his disability and/or perceived disability, continuing to refuse to engage in the interactive process in good faith, and continuing to prevent and/or correct the harassment, discrimination and retaliation meted out by Defendant.” Complaint ¶¶ 58, 63, 71 84, 90; TAC ¶ 37, 41, 48, 53, 58, 63.

Moreover, the Third Amended Complaint makes clear that it covers not only past harm but ongoing harm. Plaintiff alleges in counts 1-6, “As a direct and proximate result of Defendant’s conduct as set forth above, Plaintiff’s emotional wellbeing has substantially suffered and will continue to suffer. Plaintiff has experienced and continues to experience severe emotional distress, in an amount to be proven at trial. Plaintiff alleges that he has and will continue to suffer substantial losses in earnings, other employment opportunities, employment benefits and other damages, the precise amounts to be proven at trial.” TAC ¶¶ 38, 44, 50, 55, 60, 65 (emphasis added).

In the instant case, Plaintiff alleges that since filing the initial action, Defendants have engaged in additional unlawful acts. However, each cause of action also re-alleges substantially the same allegations in the lead case. Because the lead case will necessarily determine at least some identical issues of fact regarding each of Plaintiff’s allegations, the Court grants Defendant’s motion to abate the first six causes of action pending the resolution of the lead case.

C. Violation of Labor Code Section 1102.5

Next, Defendant argues that Plaintiff’s eighth cause of action for violation of Labor Code section 1102.5 is barred by failure to exhaust administrative remedies and failure to allege facts comprising protected whistleblower activity.

“The Government Claims Act (§ 810 et seq.) establishes certain conditions precedent to the filing of a lawsuit against a public entity. As relevant here, a plaintiff must timely file a claim for money or damages with the public entity. [T]he claims presentation requirement applies to all forms of monetary demands, regardless of the theory of the action…. The failure to timely present a claim for money or damages to a public entity bars the plaintiff from bringing suit against that entity.”  Willis v. City of Carlsbad (2020) 48 Cal.App.5th 1104, 1118 (citations omitted) (internal quotation marks omitted). “Accrual for purposes of the Act is the date of accrual that would pertain under the statute of limitations applicable to a dispute between private litigants.” Ibid. “With certain exceptions (§ 905), the timely filing of a written government claim is an element that a plaintiff is required to prove in order to prevail on his or her cause of action. Thus, a complaint failing to allege facts demonstrating timely presentation of a claim or that such presentation was excused is subject to a general demurrer for not stating facts sufficient to constitute a cause of action.” Id. at p. 1119.

Government Code Section 911.2, subdivision (a) provides, “A claim relating to a cause of action for death or for injury to person or to personal property or growing crops shall be presented as provided in Article 2 (commencing with Section 915) not later than six months after the accrual of the cause of action. A claim relating to any other cause of action shall be presented as provided in Article 2 (commencing with Section 915) not later than one year after the accrual of the cause of action.”

Here, Plaintiff filed a tort claim for damages with the City of Lawndale on August 6, 2024. Megrabyan Decl. Ex. I. Defendant argues that Plaintiff’s cause of action is barred because the tort claim does not show that Plaintiff made any protected disclosure of legal violations by Defendant in the six months before filing it. Demurrer at p. 20: 11-14. However, this misstates the effect of the presentation requirement. Plaintiff is not required to allege the disclosure was made in the last six months but that the retaliation occurred within the last six months. See, e.g., Colores v. Board of Trustees (2003) 105 Cal.App.4th 1293, 1320 (“[P]laintiff filed her claim with the State Board of Control on January 5, 1999. Thus, if her cause of action against the university for tortious wrongful constructive discharge accrued prior to July 5, 1998, it was not timely filed.”). While Plaintiff alleges retaliation occurred during 2024, neither the Complaint nor Plaintiff’s tort claim provides any dates from which the Court can determine if the tort claim was timely. Accordingly, demurrer is sustained with leave to amend.

D. California Family Rights Act

The California Family Rights Act (CFRA) creates a right to medical leave. It makes it “an unlawful employment practice for an employer to refuse to hire, or to discharge, fine, suspend, expel, or discriminate against, any individual because of… [their] exercise of the right to family care and medical leave….” Gov. Code, § 12945.2, subd. (k)(1).

Plaintiff took CFRA leave in March 2017. Plaintiff alleges that Defendant retaliated against him for taking this leave after June 2022. Defendant argues that this five-year gap is too attenuated to show a causal connection. However, the cases Defendant cites for that proposition occur at summary judgment or following trial. Demurrer at p. 22. Causation is a factual question not resolvable on demurrer.

However, Plaintiff fails to allege any CFRA violations in his tort claim. Accordingly, the demurrer as to the ninth cause of action is granted with leave to amend. Megrabyan Decl. Ex. I.

E. Labor Code Sections 6310 and 6311

Labor Code section 6310, subdivision (a)(4), prohibits discriminating against an employee who “Reported a work-related fatality, injury, or illness….or exercised any other rights protected by the federal Occupational Safety and Health Act (29 U.S.C. Sec. 651 et seq.)” Labor Code section 6310, subdivision (b) entitles an employee who is discriminated against for making “a bona fide oral or written complaint to the division, other governmental agencies having statutory responsibility for or assisting the division with reference to employee safety or health, their employer, or their representative, of unsafe working conditions, or work practices, in their employment or place of employment…” to reinstatement and reimbursement. Section 6311 prohibits employers from laying off or discharging employees for refusing to perform work in violation of safety standards or orders.

As with the whistleblower claim, Plaintiff’s allegations again fail to show that the cause of action accrued less than six months from when he filed his tort claim. Accordingly, Defendant’s demurrer to the tenth and eleventh cause of action is sustained with leave to amend.

Finally, to the extent that Defendant argues in the sanctions motion that Plaintiff’s claims under the Labor Code and CFRA lack evidentiary support (Motion at pg. 9; Reply at pg. 5), the Court is not persuaded by this argument. These claims are based on allegations that Plaintiff sought protected leave and/or complained of unsafe working conditions but endured retaliation as a result. (Compl. ¶¶ 103, 109, 127, 133.) On the face of this Complaint, the allegations do not amount to improper speculative pleading that would warrant sanctions under Section 128.7.

E. Stay of Proceedings

“‘[A] court ordinarily has inherent power, in its discretion, to stay proceedings when such a stay will accommodate the ends of justice.’” OTO, L.L.C. v. Kho (2019) 8 Cal.5th 111, 141 [251 Cal.Rptr.3d 714 (quoting People v. Bell (1984) 159 Cal.App.3d 323, 329). Moreover, “‘the power to stay proceedings is incidental to the power inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants.’” Ibid (quoting (Landis v. North American Co. (1936) 299 U.S. 248, 254.

Considering the Court’s grant of abatement of causes of action 1-6 and the related issues that will be litigated at the upcoming trial in the lead case, the Court exercises its authority to stay the instant case pending resolution of the lead case.

CONCLUSION

Defendant’s sanctions motion is denied. Defendant's Demurrer is sustained with leave to amend, and the motion to strike is denied as moot. This case, however, is ordered stayed pending the resolution of the lead case. Once the lead case concludes, the Court will set a schedule for the filing of an amended complaint in this case. For now, the Court will discuss with the parties a mutually agreeable date for a status conference  in this case.