Judge: Armen Tamzarian, Case: BC680213, Date: 2025-01-17 Tentative Ruling

Case Number: BC680213    Hearing Date: January 17, 2025    Dept: 52

Defendant County of Los Angeles’s Demurrer to Second Amended Complaint

Defendant County of Los Angeles demurs to plaintiff Andrew Rodriguez’s second cause of action for retaliation under the Fair Employment and Housing Act (FEHA). 

Plaintiff does not allege sufficient facts for a cause of action under Government Code section 12940, subdivision (h).  An employer engages in prohibited retaliation by taking an adverse employment action “against any person because the person has opposed any practices forbidden under this part [i.e., FEHA] or because the person has filed a complaint, testified, or assisted in any proceeding under” FEHA.  (Ibid.)  “ ‘ “[T]he nature of activities protected by section 12940, subdivision (h) demonstrate some degree of opposition to or protest of the employer’s conduct or practices based on the employee’s reasonable belief that the employer’s action or practice is unlawful” ’ ” under FEHA.  (Zamora v. Security Industry Specialists, Inc. (2021) 71 Cal.App.5th 1, 65 (Zamora).)

  The second amended complaint alleges plaintiff “engaged in protected activities, including taking medical leave, filing of a worker’s compensation claim, protesting conditions of employment, protesting illegal orders, and protesting illegal acts of DEFENDANTS, such as the falsification of official government reports.”  (SAC, ¶ 60.)  Among these allegations, “filing of a worker’s compensation claim”, “protesting illegal orders” and “illegal acts … such as the falsification of official government reports” are wholly unrelated to FEHA.  As to “protesting conditions of employment,” this conclusory allegation is not supported by any factual allegation indicating plaintiff protested that the “conditions of employment” violated FEHA as opposed to various other laws.  This cause of action is limited to opposing FEHA violations, not other misconduct by a law enforcement agency or objectionable “conditions of employment” in general.

None of the second amended complaint’s factual allegations show any degree of opposition to or protest of FEHA violations.  Plaintiff alleges, “PLAINTIFF’S treating physician continued to prescribe extended medical leave due to PLAINTIFF’s inability to perform his job due to his medical condition(s).  PLAINTIFF continued to give DEFENDANTS timely notice of his need for additional medical leave, including by means of transmitting doctors’ notes from his treating physician to DEFENDANTS.  Subsequently, as PLAINTIFF brought in medical certifications for his medical leave,” defendant did various things to investigate plaintiff or otherwise subject him to extra scrutiny.  (SAC, ¶¶ 31-34.)  Relying on these allegations, plaintiff’s opposition argues “providing … supplemental [doctor’s] notes was done to oppose practices prohibited by FEHA, to wit, the interference with his medical leave.”  (Opp., p. 3.)  

Submitting doctor’s notes does not demonstrate opposition or protest of defendant’s conduct.  It is an instrumental act done to obtain the requested accommodation, not to oppose FEHA violations.  Submitting medical documentation is part of the interactive process by which an employee seeks a reasonable accommodation.  (See Cal. Code Regs., tit. 2, § 11069.)  As discussed below, requesting reasonable accommodation does not constitute protected activity under Government Code section 12940, subdivision (h).

Plaintiff argues, “[T]he requesting of an accommodation that Plaintiff be allowed to recuperate during his protected medical leave without having his employer send multiple armed individuals to his work, secondary job, and doctor’s office constituted a request for accommodation, which is recognized as a protected act for purposes of FEHA retaliation per Rope” v. Auto-Chlor System of Washington, Inc. (2013) 220 Cal.App.4th 635 (Rope).  (Opp., p. 3.) 

That is the opposite of what Rope held: “[W]e find no support in the regulations or case law for the proposition that a mere request—or even repeated requests—for an accommodation, without more, constitutes a protected activity sufficient to support a claim for retaliation in violation of FEHA.  On the contrary, case law and FEHA’s implementing regulations are uniformly premised on the principle that the nature of activities protected by subdivision (h) demonstrate some degree of opposition to or protest of the employer’s conduct or practices based on the employee’s reasonable belief that the employer’s action or practice is unlawful.”  (220 Cal.App.4th at pp. 652–653.)  “Neither category” of protected activity “encompasses Rope’s requests, or complaints to Auto-Chlor management about the company’s failure to grant paid DPA [Donation Protection Act] leave.”  (Id. at pp. 653-654.) 

The law of the case doctrine also precludes plaintiff’s argument.  “[T]he ‘law of the case’ doctrine dictates that an appellate court’s holding, on a rule of law necessary to an opinion, must be adhered to throughout the case’s subsequent progress in the trial court and on subsequent appeal, as to questions of law (though not as to questions of fact).”  (City of West Hollywood v. Kihagi (2017) 16 Cal.App.5th 739, 749.)  In its opinion in this case, the Court of Appeal stated, “While taking medical leave may not be an activity protected under section 12940, subdivision (h), retaliation for taking medical leave constitutes a violation of section 12945.2, subdivision (k) of the California Family Rights Act (CFRA).”  (Rodriguez v. County of Los Angeles (Cal. Ct. App., Sept. 20, 2022, No. B304818) 2022 WL 4354328, at *7.)  Plaintiff now asserts a separate cause of action for violation of section 12945.2, subdivision (k).  He cannot rely on the same allegations regarding medical leave to support a violation of section 12940, subdivision (h).

Leave to Amend

            After a successful demurrer, where “there is a reasonable possibility that the defects can be cured by amendment, leave to amend must be granted.”  (Stevens v. Superior Court¿(1999) 75 Cal.App.4th 594, 601.)  The plaintiff bears the burden of “demonstrat[ing] how the complaint can be amended.”  (Smith v. State Farm Mutual Automobile Ins. Co.¿(2001) 93 Cal.App.4th 700, 711.)  “Leave to amend should be denied where the facts are not in dispute and the nature of the claim is clear, but no liability exists under substantive law.”  (Lawrence v. Bank of America¿(1985) 163 Cal.App.3d 431, 436.) 

            Plaintiff does not meet his burden of showing he can amend the complaint to cure the defect in his second cause of action.  Plaintiff argues only that he could “more fully elucidate his protected acts, to wit: (1) ‘taking medical leave’; (2) ‘filing of a worker’s compensation claim’; (3) ‘protesting conditions of employment’; (4) ‘protesting illegal orders’; and (5) ‘protesting illegal acts of defendants.’ ”  (Opp., p. 4.)  This conclusory argument fails to explain what plaintiff could allege to show he opposed FEHA violations.  As a matter of substantive liability, these things do not constitute protected activity under Government Code section 12940, subdivision (h).  Plaintiff filed this action more than seven years ago and has amended the complaint twice already.  He gives no reason to believe he can amend the complaint to successfully allege a cause of action under section 12940(h).

Disposition

            Defendant County of Los Angeles’s demurrer to the second amended complaint’s second cause of action is sustained without leave to amend.  Defendant shall answer the second amended complaint’s remaining causes of action within 10 days.