Judge: Armen Tamzarian, Case: 20STCV18692, Date: 2023-08-30 Tentative Ruling

Case Number: 20STCV18692    Hearing Date: October 25, 2023    Dept: 52

Order to Show Cause Why the Individual Defendants May Be Liable for the Sixth Cause of Action

            On January 19, 2023, the court issued the following order:

After summary adjudication, only one cause of action—the sixth cause of action for disability discrimination by Jesus Lopez—remains against the seven individual defendants: Randy Hoover, Patti Cheselske, Jon Nelson, Chris Wiley, Terence Johnson, Teresa Livesay, and Mario Guerrero.

Though defendants did not move for summary judgment or adjudication on this basis, the court finds it appropriate to set an order to show cause regarding whether the individuals can be liable for this cause of action.  “[I]ndividuals who do not themselves qualify as employers may not be sued under the FEHA for alleged discriminatory acts.”  (Reno v. Baird (1998) 18 Cal.4th 640, 663.)  “[O]nly employers—and not individual supervisory employees—are at risk of liability for discrimination.”  (Janken, supra, 46 Cal.App.4th at p. 80.)  Unless plaintiffs can establish grounds for holding the individual defendants liable for discrimination, proceeding to trial against them would greatly undermine judicial economy.

            In response, defendants persuasively argue plaintiffs have not and cannot state a disability discrimination cause of action against the seven individual defendants.

            In their untimely response, plaintiffs do not dispute defendants’ argument.  Indeed, plaintiffs do not even attempt to show how the seven individual defendants could be liable for disability discrimination.  By failing to respond to the substance of the court’s order to show cause (OSC), plaintiffs appear to tacitly concede that their cause of action against the individual defendants is wholly without merit and always has been.  Yet despite being advised by the court of an apparent fatal flaw in their sixth cause of action, plaintiffs decline, without explanation, to dismiss the individual defendants. 

            Plaintiffs do, however, make a valid procedural point.  The proper remedy for plaintiffs’ ostensibly frivolous and bad faith cause of action is for defendants to file a motion for summary judgment or some other dispositive motion.  The court thus will not dismiss defendants Hoover, Cheselske, Nelson, Wiley, Johnson, Livesay, and Guerrero at this time.

            The court reminds plaintiffs’ counsel that bringing or maintaining a claim that is not “warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law,” is sanctionable conduct.  (Code Civ. Proc., § 128.7, subd. (b)(2).)  The court also notes that Government Code section 12965, subdivision (c)(6) provides:  “In civil actions brought under this section, the court, in its discretion, may award to the prevailing party, including the department, reasonable attorney's fees and costs, including expert witness fees, except that, notwithstanding Section 998 of the Code of Civil Procedure, a prevailing defendant shall not be awarded fees and costs unless the court finds the action was frivolous, unreasonable, or groundless when brought, or the plaintiff continued to litigate after it clearly became so.”

The court hereby discharges the OSC why the individual defendants may be liable for the sixth cause of action.