Judge: Anne Richardson, Case: 23STCV07694, Date: 2023-10-09 Tentative Ruling

Case Number: 23STCV07694    Hearing Date: October 9, 2023    Dept: 40

Superior Court of California

County of Los Angeles

Department 40

Background

Plaintiff Maria Rivero sues Defendants County of Los Angeles, Nancy Canosa, and Does 1 to 10 pursuant to an April 7, 2023 Complaint alleging claims of (1) Medical Leave Retaliation, Govt. Code § 12945.2 (CFRA), (2) Paid Sick Leave Retaliation, Labor Code § 245 et. seq. including 246.5, (3) Paid Sick Leave Discrimination, Labor Code § 245 et seq. including 246.5, (4) Medical Leave Discrimination, Govt. Code § 12945.2 (CFRA), (5) Retaliation for Requesting Accommodations for Disabilities, Govt. Code § 12940(m), (6) Failure to Engage in a Timely and Good Faith, Interactive Process to Determine Reasonable Accommodation for Disability, Govt. Code § 12940(n), (7) Failure to Reasonably Accommodate Disabilities, Govt. Code § 12940(m), (8) Disability Discrimination, Govt. Code § 12940(a), (9) Discrimination Based on Ancestry – Disparate Treatment, Govt. Code § 12940, (10) Discrimination Based on Age – Disparate Treatment, Govt. Code § 12940, (11) Harassment Based on Ancestry, Govt. Code § 12940, (12) Harassment Based on Age, Govt. Code § 12940, (13) Retaliation for Opposing Violations of FEHA (Govt. Code § 12900, et seq.), Govt. Code § 12940(h), (14) Failure to Prevent and Stop Harassment, Discrimination, and Retaliation, Govt. Code § 12940(j), (k), (15) Whistleblower Retaliation, Labor Code §§ 1102.5 & 1102.6, and (16) Unauthorized Wage Deduction, California Labor Code 224 and 225.5.

The claims arise from allegations that in her employment with the “Child Support Services” (CSS) division of the County of Los Angeles, Plaintiff’s supervisor—Defendant Nancy Canosa—engaged in conduct that amounted to various Fair Employment and Housing Act (FEHA), California Family Rights Act (CFRA), and Labor Code violations against Plaintiff. (Plaintiff also alleges to have been terminated from her employment though the Court notes that such termination is not given a date in the Complaint.) More specifically, Plaintiff alleges that Defendant Canosa, as Plaintiff’s supervisor, failed to promptly move Plaintiff from a work station that was exposed to an uncovered and malfunctioning ventilation system on which mold had grown, commented that Plaintiff was “showing” her “age” or that Plaintiff’s hair was graying, singled Plaintiff out for criticism (e.g., work-from-home policy comment) or otherwise ignored Plaintiff Rivero during team meetings, told Plaintiff she acted too “Cuban” or “too loud,” failed to allow Plaintiff to telework despite health conditions, thus forcing Plaintiff to get a doctor’s note, and otherwise singled Plaintiff out for discrimination, harassment, and retaliation. Plaintiff also alleges that another supervisor (Chough) once tried to discipline Plaintiff for submitting a report against a safety engineer who failed to accurately perform and report safety checks.

As to CSS itself, Plaintiff Rivero alleges she was otherwise harmed or not well treated by this Defendant in other ways. Plaintiff alleges that she was constantly being moved from department to department, that she was assigned progressively less experienced supervisees to manage, and that CSS failed to investigate reports of harassment and discrimination experienced by Plaintiff (Defendant Canosa stating Plaintiff acted “too Cuban” or “loud” or being forced to return to the workplace during the COVID-19 pandemic). Plaintiff further alleges that Defendant Canosa’s failure to move Plaintiff from the moldy work environment resulted in Plaintiff developing Diminished Lung Volume (DLV), that for months CSS did not allow Plaintiff to return to work from medical leave with or without restrictions pending further clarification as to Plaintiff’s ability to work/restrictions from Plaintiff’s doctor, and that Plaintiff was finally allowed to return to work, but without the restrictions that Plaintiff’s doctor had provided (no supervision by Defendant Canosa and Mr. Chough). Plaintiff also alleges that CSS and its agents held interactive process meetings without Plaintiff present, that CSS agreed to conditions that it did not honor (third-party intermediary would be present whenever Plaintiff and Defendant Canosa or Mr. Chough met and at least one violation of that agreement), and that Plaintiff’s wages were withheld in part as compensation to CSS for benefits paid for/used by Plaintiff during an unpaid/no-benefits medical leave.

On June 12, 2023, Defendants demurred to the Complaint’s sixteen causes of action based on sufficiency of pleading.

That same day, Defendants moved to strike portions of the Complaint related to punitive damages.

Both motions were set for hearing on July 14, 2023.

On July 5, 2023, Defendants filed a reply noticing Plaintiff’s failure to oppose the demurrer and motion to strike.

On July 12, 2023, the hearing on the demurrer and motion to strike were continued to October 9, 2023, at Plaintiff’s request.

On September 29, 2023, Plaintiff filed and served untimely oppositions to the demurrer and motion to strike.

On October 4, 2023, Defendants filed and served untimely replies to the oppositions.

Defendants’ demurrer and motion to strike are now before the Court.

Court’s Motion to Strike

Legal Standard

The court may, upon a motion or at any time in its discretion and upon terms it deems proper: (a) strike out any irrelevant, false, or improper matter inserted in any pleading; or (b) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (Code Civ. Proc. § 436, subds. (a), (b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].)

For the purposes of a motion to strike pursuant to Sections 435 to 437 of the Code of Civil Procedure, the term “pleading” generally means a demurrer, answer, complaint, or cross-complaint, (Code Civ. Proc., § 435, subd. (a)), and an immaterial allegation or irrelevant matter in a pleading entails (1) an allegation that is not essential to the statement of a claim or defense, (2) an allegation that is neither pertinent to nor supported by an otherwise sufficient claim or defense, or (3) a demand for judgment requesting relief not supported by the allegations of the complaint or cross-complaint (Code Civ. Proc., § 431.10, subds. (b)(1)-(3), (c)).

Order to Show Cause Why the Court Should not Strike FEHA Claims, Fifth to Fourteenth Causes of Action

[(5) Retaliation for Requesting Accommodations for Disabilities, Govt. Code § 12940(m), (6) Failure to Engage in a Timely and Good Faith, Interactive Process to Determine Reasonable Accommodation for Disability, Govt. Code § 12940(n), (7) Failure to Reasonably Accommodate Disabilities, Govt. Code § 12940(m), (8) Disability Discrimination, Govt. Code § 12940(a), (9) Discrimination Based on Ancestry – Disparate Treatment, Govt. Code § 12940, (10) Discrimination Based on Age – Disparate Treatment, Govt. Code § 12940, (11) Harassment Based on Ancestry, Govt. Code § 12940, (12) Harassment Based on Age, Govt. Code § 12940, (13) Retaliation for Opposing Violations of FEHA (Govt. Code § 12900, et seq.), Govt. Code § 12940(h), and (14) Failure to Prevent and Stop Harassment, Discrimination, and Retaliation, Govt. Code § 12940(j), (k)]: RESERVED, SUBJECT TO ORAL ARGUMENT.

Before filing an employment discrimination lawsuit under FEHA, a plaintiff must exhaust her administrative remedies before the Civil Rights Department (CRD) (formerly known as the Department of Fair Employment and Housing (DFEH)), e.g., filing a DFEH Complaint and securing a Right-to-Sue Letter. (Gov. Code §§ 12960, subds. (b), (d), 12965, subd. (b); see Rojo v. Kliger (1990) 52 Cal.3d 65, 88.) This requirement is jurisdictional. (Miller v. United Airlines, Inc. (1985) 174 Cal.App.3d 878, 889-890.) To bring a lawsuit against a party under FEHA, the defendants must have been named in the caption or body of the charge filed with the CRD (i.e., DFEH Complaint). (See, e.g., Medix Ambulance Service, Inc. v. Superior Court (2002) 97 Cal.App.4th 109, 116-118.) 

In their demurrer, Defendants argue that Plaintiff failed to exhaust her administrative remedies in relation to the fifth to sixth, eighth to tenth, and thirteenth to fourteenth causes of action because Plaintiff only filed a single claim for harassment with the CRD [formerly DFEH]. Defendants also argue that because Plaintiff’s DFEH Complaint was filed on May 11, 2022, all the alleged actionable conduct and injuries alleged in the Complaint that follow this date are not covered by Plaintiff’s administrative claim. (Demurrer, p. 8.)

In opposition, Plaintiff argues that the new “counts find their foundation in the same set of facts as her initial harassment claim, placing them squarely within the ‘reasonably related’ [and permissive] framework affirmed by California jurisprudence” in relation to the scope of a DFEH Complaint, which “allows new but intrinsically connected allegations to be incorporated into a lawsuit.” Plaintiff also argues that “California and federal case law actually permit the inclusion of such subsequent incidents, especially if they are closely related to the original complaint.” (Opp’n, pp. 3-4.)

The reply does not discuss exhaustion of administrative remedies. (See Reply.)

The Court finds it is uncertain as to the DFEH claim at issue and, as a result, the FEHA claims.

The Complaint’s allegations are uncertain as to the timeline for the DFEH Complaint and the underlying support for Plaintiff’s FEHA claims. The body of the Complaint alleges that the DFEH Complaint was filed on May 11, 2022. (Complaint, ¶ 55.) Yet, the DFEH Complaint and Right to Sue Letter attached to the Complaint show that the DFEH Complaint was filed on March 31, 2023 and contains facts allegedly occurring after May 11, 2022. (Complaint, Ex. 1, DFEH Complaint, pp. 1-3 [providing Date Filed date of Mar. 31, 2023].) No other right to sue letter is attached to the Complaint, demurrer, motion to strike, oppositions, or replies. As far as the March 31, 2023 DFEH Complaint attached to Exhibit 1 conflicts with the May 11, 2022 allegations in the Complaint’s body, the attached DFEH Complaint and its March 31, 2023 date take precedence. (Holland v. Morse Diesel Intern., Inc., supra, 86 Cal.App.4th at p. 1447.) Yet, the parties’ papers make arguments relating to the DFEH Complaint based on the May 11, 2022 date, and the Opposition does not mention the March 31, 2023 DFEH Complaint which is attached to the Complaint.

Under such circumstances, it is uncertain what Defendants’ argument is premised on, and whether there is a problem with Plaintiffs’ exhaustion of administrative remedies with the CRD. The Court cannot determine whether the March 31, 2023 DFEH Complaint is an amendment to the alleged May 11, 2022 DFEH Complaint or if the March 31, 2023 DFEH Complaint is the Complaint that supports all of Plaintiff’s FEHA claims. (The latter conclusion is doubtful given that the May 11, 2022 DFEH Complaint allegedly limited itself to a harassment claim and did not include Defendant Canosa, but the March 31, 2023 DFEH Complaint includes harassment, discrimination, and retaliation claims, and includes Defendant Canosa as a respondent.)

Defendants’ demurrer, however, is not premised on these grounds.

Therefore, the Court requests additional information about this issue at the time of oral argument.

Defendants’ Demurrer

Timeliness of Opposition

Even when a party does expressly object to inadequate notice but then opposes a motion (or replies to an opposition) on the merits, the issue of defective notice may be waived unless the opposing party makes a request for a continuance or demonstrates prejudice from the defective notice. (See Carlton v. Quint (2000) 77 Cal.App.4th 690, 697; Reedy v. Bussell (2007) 148 Cal.App.4th 1272, 1288; accord. Robinson v. Woods (2008) 168 Cal.App.4th 1258, 1264 [When a party only “respond[s] to [a] [late-served] motion by filing a written opposition containing only the notice objections and never argue[s] the merits,” no waiver occurs, such that the objecting party need “not … [even] claim or show prejudice [to object to the late-served motion] because the[] [plaintiffs] did not address the merits [of the motion], in writing or otherwise”]; contra. Boyle v. CertainTeed Corp. (2006) 137 Cal.App.4th 645, 650 [“A party’s participation in a hearing after the party’s objection to the hearing as unauthorized does not constitute waiver by acquiescence”].)

Here, the opposition was filed on September 29, 2023 but should have been filed on September 26, 2023, three court days earlier. (Code Civ. Proc., § 1005, subd. (b).) However, Defendants replied on the merits, provide no request for a continuance, and do not argue that the lateness of the opposition has prejudiced them (other than perhaps being limited to a shortened amount of time to reply to the opposition). (See Demurrer Reply.) Accordingly, any defective (late) service of the opposition is deemed waived. The Court does not find any prejudice, particularly given that the Court will consider their late-filed reply (see below).

The Court briefly notes that the reply was filed on October 2, 2023, two court days late. (Code Civ. Proc., § 1005, subd. (b).) However, the Court nevertheless considers the reply because it was made likely late as a result of the late-filed opposition.

Demurrer Sufficiency Standard

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747; see Code Civ. Proc., § 430.10, subd. (e).) This device can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “To survive a [general] demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged.” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) In testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-67.) A demurrer, however, “does not admit contentions, deductions or conclusions of fact or law.” (Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228, disapproved on other grounds, Jones v. Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158, 1162.) The face of the complaint includes exhibits attached to the complaint. (Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94.) If facts appearing in the exhibits contradict those alleged, the facts in the exhibits take precedence. (Holland v. Morse Diesel Intern., Inc. (2001) 86 Cal.App.4th 1443, 1447, superseded by statute on other grounds as stated in White v. Cridlebaugh (2009) 178 Cal.App.4th 506, 521.)

I.

Complaint, Fifth through Fourteenth Causes of Action: RESERVED.

The Court cannot reach the demurrer’s arguments in relation to the FEHA claims—i.e., failure to exhaust administrative remedies, failure to include Defendant Canosa in the May 11, 2022 DFEH Complaint, and failure to sufficiently allege each of the ten FEHA claims—until it can reach a determination of the issue of exhaustion noted above. As noted above, it would appear that the parties are citing to a DFEH Complaint that was not attached to the Complaint.

II.

Complaint, Fifteenth Cause of Action [(15) Whistleblower Retaliation and Labor Code §§ 1102.5 & 1102.6]: SUSTAINED, With Leave to Amend.

In pursuing a Labor Code section 1102.5 whistleblower retaliation claim, a plaintiff has the burden to show “by a preponderance of the evidence” that the employee’s protected whistleblowing was a “contributing factor” to an adverse employment action, and if the plaintiff succeeds in making this showing, the employer must in turn demonstrate by “clear and convincing evidence” that the alleged adverse employment action would have occurred “for legitimate, independent reasons” even if the employee had not engaged in protected whistleblowing activities. (Lawson v. PPG Architectural Finishes, Inc. 12 Cal.5th 703, 712 [citing to Labor Code section 1102.6 and disapproving McDonnell Douglas framework to whistleblower claims as held in Patten v. Grant Joint Union High School Dist. (2005) 134 Cal.App.4th 1378, 1384.)

In their demurrer, Defendants argue that Plaintiff fails to sufficiently allege a whistleblower retaliation claim because she “fails to allege causation, or even an adverse employment action.” This argument is not further elaborated. (Demurrer, pp. 11-12.)

In opposition, Plaintiff argues that paragraphs 45 to 51 in the Complaint sufficiently support causation and that paragraphs 52 to 54 in the Complaint sufficiently allege the adverse employment actions. (Opp’n, p. 6.)

Defendants’ reply is limited to FEHA and other Labor Code arguments. It does not make arguments related to the whistleblower retaliation claim. (See Reply, pp. 2-8.)

The Court finds in favor of Defendants.

The Court fails to locate any whistleblowing allegations in paragraphs 45 to 54. These paragraphs are instead devoted to describing (1) the process by which Plaintiff obtained a letter from her primary care physician that placed her off work between September 27, 2021 and March 28, 2022, (2) the result of Plaintiff’s subsequent medical evaluations, (3) Plaintiff’s notes and attempts to return back to work, (4) Defendants’ refusal to allow Plaintiff to return to work, (5) interactive process meetings in which Plaintiff did not participate, and (6) a worker’s compensation claim. (Complaint, ¶¶ 45-54.) Without a whistleblowing activity, there can be no adverse employment action or causation for section 1102.5 or 1102.6 purposes.

Defendants’ demurrer to the Complaint’s fifteenth cause of action is thus SUSTAINED, With Leave to Amend.

III.

Complaint, First and Fourth Causes of Action [(1) Medical Leave Retaliation, Govt. Code § 12945.2 (CFRA) and (4) Medical Leave Discrimination, Govt. Code § 12945.2 (CFRA)]: SUSTAINED, With Leave to Amend.

The CFRA makes it unlawful for an employer to refuse to hire, discharge, fine, suspend, expel, or discriminate against any individual based on (1) that individual’s exercise of the right to family care and medical leave provided by subdivision (a) of section 12945.2 of the Government Code or (2) that individual giving information or testimony as to the individual’s own family care and medical leave, or another person’s family care and medical leave, in any inquiry or proceeding related to rights guaranteed under the CFRA. (Govt. Code, § 12945.2, subd. (k).)

“The elements of a cause of action for retaliation in violation of [California Family Rights Act] are “‘(1) the defendant was an employer covered by CFRA; (2) the plaintiff was an employee eligible to take CFRA [leave]; (3) the plaintiff exercised her right to take leave for a qualifying CFRA purpose; and (4) the plaintiff suffered an adverse employment action, such as termination, fine, or suspension, because of her exercise of her right to CFRA [leave].”’” (Soria v. Univision Radio Los Angeles, Inc. (2016) 5 Cal.App.5th 570, 604, citations omitted; see also Govt. Code, § 12945.2, subd. (k).)

In their demurrer, Defendants argue that “[Plaintiff] Rivero[’s] [Complaint] alleges no facts supporting” CFRA “interference or retaliation,” particularly where the Complaint alleges that Plaintiff took more than the “twelve … weeks’ leave allowable under the CFRA.” (Demurrer, p. 13.)

In opposition, Plaintiff essentially argues that there is no authority banning CFRA claims for leave past 12 weeks, that any alleged adverse action following twelve weeks of leave clearly shows retaliation, and that the alleged interference is based on Defendants forcing Rivero to exceed her CFRA allotment based on their lack of reasonable accommodations and other unspecified issues. (Opp’n, p. 8.)

In reply, Defendants make arguments beyond the scope of the demurrer, which are not accepted. (Reply, pp. 4-6; Nordstrom Com. Cases (2010) 186 Cal.App.4th 576, 583 [Courts generally need not accept arguments raised for the first time on reply without good cause explanation as to why points were not raised earlier].)

The Court finds in favor of Defendants.

It is not clear to the Court, based on Plaintiff’s opposition arguments, how the Complaint pleads that the Defendants retaliated against Plaintiff based on Plaintiff taking medical leave. Plaintiff’s opposition does not point to paragraphs in the Complaint showing such allegations were made. A review of the first and fourth causes of action shows they merely cite the elements of those claims and rely on incorporated allegations for support. (Complaint, ¶¶ 76-79, 88-91; see Complaint, ¶¶ 12-71 [underlying allegations].) A review of the incorporated allegations fails to show such retaliation or even discrimination generally, let alone retaliation or discrimination based on medical leave. Plaintiff is alleged to have been on medical leave from approximately September 27, 2021 to March 28, 2022 and to have attempted to return to work on March 29, 2022. (Complaint, ¶¶ 45-50.) Thereafter, the County of Los Angeles demanded that Plaintiff’s doctor provide an updated note, forcing Plaintiff to remain on leave until January 30, 2023, i.e., ten days after Plaintiff allegedly received a return-to-work letter confirming that Plaintiff’s doctor had allowed her to return to work with no accommodations. (Complaint, ¶¶ 51-66.) The allegations that follow relate to other matters or payments withheld from Plaintiff’s check based on outstanding balances. (Complaint, ¶¶ 67-71.) In this chain of allegations, it is not clear to the Court what retaliation or discrimination Defendants committed against Plaintiff, nor how any such retaliation or discrimination was based on Plaintiff’s request for medical leave.

Defendants’ demurrer to the Complaint’s first and fourth causes of action is thus SUSTAINED, With Leave to Amend.

IV.

Complaint, Second, Third, and Sixteenth Causes of Action [(2) Paid Sick Leave Retaliation, Labor Code § 245 et. seq. including 246.5, (3) Paid Sick Leave Discrimination, Labor Code § 245 et seq. including 246.5, and (16) Unauthorized Wage Deduction, California Labor Code 224 and 225.5]: SUSTAINED, With Leave to Amend.

In their demurrer, Defendants argue that the second, third, and sixteenth causes of action fail because (1) “Rivero has failed to set forth any facts demonstrating any form of retaliation and discrimination,” (2) Rivero “has … failed to set forth facts showing that wage deductions were “unauthorized,” (3) the “Labor Code sections pertaining to wage and deduction claims are inapplicable against the County as a public entity” based on the County’s Home Rule doctrine, (4) the “the County’s procurement of overpayments through wage deductions is not unlawful,” and (5) “Rivero fails to allege meeting the claims presentation requirements under Government Code Section 911.2.” (Demurrer, pp. 13-14.)

In opposition, Plaintiff argues that Labor Code statutes can indeed apply to the public sector under certain conditions and thereafter cites three cases with parentheticals. However, Plaintiff does not respond to all of the arguments made by Defendants, and her citations do not clearly apply to the allegations made in her Complaint. (Opp’n, p. 8.)

In reply, Defendants reiterate their demurrer arguments and distinguish one of the authorities cited by Plaintiff Rivero. (Reply, p. 8.)

The Court finds in favor of Defendants.

The Court first adopts its above discussion in Section III to determine that the Complaint does not clearly plead retaliation and discrimination against Plaintiff Rivero based on her request for or use of sick leave.

The Court next notes that the Complaint alleges that Plaintiff’s wages were deducted to compensate the County for costs it paid to provide Plaintiff medical benefits during what should have been an unpaid medical leave. (Complaint, ¶¶ 67-71.) To the extent that that Complaint alleges that the deductions were nevertheless prohibited or should not have been made, such allegations are conclusory because the Complaint does not allege ultimate facts supporting this conclusion.

Defendants’ demurrer to the Complaint’s second, third, and sixteenth causes of action is thus SUSTAINED, With Leave to Amend.

Defendants’ Motion to Strike

Timeliness of Opposition and Reply

The Court accepts both the opposition and reply based on the Timeliness discussion in the Demurrer section above.

Legal Standard

See above.

Order Striking Punitive Damages Allegations and Prayer from Complaint: RESERVED.

Because the Court has sustained Defendants’ demurrer to some of the Complaint’s claims, and because it has questions regarding the exhaustion of administrative remedies as to the other claims, punitive damages allegations and prayers may be irrelevant in this action. The Court will entertain further argument regarding Defendants’ motion to strike such allegations and prayer at oral argument. 

Conclusion

The Court requests argument regarding the fifth through fourteenth causes of action brought under FEHA, for the reasons discussed above.

Defendants County of Los Angeles and Nancy Canosa’s Demurrer to Complaint is RESERVED, in Part, and SUSTAINED, With Leave to Amend, in Part, as follows:

(1) RESERVED as to the Complaint’s fifth through fourteenth causes of action; and

(2) SUSTAINED, With Leave to Amend, as to the Complaint’s first through fourth and fifteenth to sixteenth causes of action.

Defendants County of Los Angeles and Nancy Canosa’s Motion to Strike Portions of Complaint is RESERVED.