Judge: Barbara M. Scheper, Case: 20STCV31573, Date: 2023-03-27 Tentative Ruling
Case Number: 20STCV31573 Hearing Date: March 27, 2023 Dept: 30
Calendar No.
Pink vs. Inglewood
Unified School District, et. al., Case No. 20STCV31573
Tentative Ruling
re: Defendant’s Demurrer to Second
Amended Complaint; Motion to Strike
Defendant
Inglewood Unified School District (Defendant) demurs to the third and sixth
causes of action in the Second Amended Complaint (SAC) of Plaintiff Tommy Pink
(Plaintiff). The demurrer is sustained without leave to amend.
In reviewing the legal sufficiency of a complaint against a demurrer, a
court will treat the demurrer as admitting all material facts properly pleaded,
but not contentions, deductions, or conclusions of law. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318 (Blank); C & H Foods Co.
v. Hartford Ins. Co. (1984) 163 Cal.App.3d 1055, 1062.) It is well settled
that a “demurrer lies only for defects appearing on the face of the
complaint[.]” (Stevens v. Superior Court
(1999) 75 Cal.App.4th 594, 601.) “The rules by which the sufficiency of a complaint
is tested against a general demurrer are well settled. We not only treat the
demurrer as admitting all material facts properly pleaded, but also give the
complaint a reasonable interpretation, reading it as a whole and its parts in
their context.” (Guclimane Co. v. Stewart
Title Guaranty Co. (1998) 19 Cal.4th 26, 38 (internal quotes omitted).) For
purposes of ruling on a demurrer, the complaint must be construed liberally by
drawing reasonable inferences from the facts pleaded. (Wilner v. Sunset Life Ins. Co. (2000) 78 Cal.App.4th 952, 958.)
When ruling on a demurrer, the Court may only consider the complaint’s
allegations or matters which may be judicially noticed. (Blank, supra, 39 Cal.3d at 318.) The Court may not consider any
other extrinsic evidence or judge the credibility of the allegations plead or
the difficulty a plaintiff may have in proving his allegations. (Ion Equip. Corp. v. Nelson (1980) 110
Cal.App.3d 868, 881.) A demurrer is properly sustained only when the complaint,
liberally construed, fails to state facts sufficient to constitute any cause of
action. (Kramer v. Intuit Inc. (2004)
121 Cal.App.4th 574, 578.)
The SAC alleges that Plaintiff was
employed by Defendant as Instructor of its Army Junior Reserve Officers'
Training Corps (JROTC) at Inglewood High School (IHS) from September 1, 2014,
until July 31, 2020. (SAC ¶ 2.) Plaintiff previously served in the United
States Army. (SAC ¶ 11.) It is alleged that Defendant Debbie Tate (Tate), the
principal of IHS, and Defendant Nora Roque, Defendant’s Chief of Human
Resources, committed various misconduct against Plaintiff from 2018 onwards.
(SAC ¶ 15.) Roque and Tate made statements to other
IUSD teachers, parents, and staff that “the
JROTC program was for losers” and that “plaintiff’s military status was questionable” allegedly to harass and annoy
Plaintiff, and to force him to quit or resign. Plaintiff alleges that Roque and
Tate’s conduct towards him was done based on his military service, race, and
color. (SAC ¶ 25.)
When
Plaintiff complained in writing and interviews about being harassed by Roque
and Tate based on his military status, race, and color, Plaintiff was placed on
administrative leave twice, in 2019 and in 2020. (SAC ¶ 25(a).) Plaintiff was
then terminated later in 2020, when Roque and Tate “orchestrated the
termination of the JROTC program using pretextual and trumped up
and false and uncorroborated statements by students who were coached by them to make false, unsubstantiated and
uncorroborated claims of inappropriate behavior
against him.” (SAC ¶ 25(a).) Additionally,
from 2018 through 2020, Roque and Tate made statements to other IUSD teachers,
parents, and staff that Plaintiff “engaged in improper sexual behavior with
students on the basis of his military service, race and color.” (SAC ¶ 25(b).)
The SAC asserts six causes of
action against Defendants, for: (1) Failure to Prevent Discrimination (FEHA);
(2) Retaliation and Harassment (FEHA); (3) Violation of Cal. Labor Code §
1102.5; (4) Defamation; (5) Intentional Infliction of Emotional Distress; (6)
Violation of Education Code. Defendant demurs to the
third and sixth causes of action.
Third Cause of Action for Violation of Labor Code § 1102.5
(Whistleblower Statute)
Labor Code § 1102.5, subd. (b), forbids “[a]n
employer, or any person acting on behalf of the employer,” from retaliating
against an employee for disclosing information “to a government or law
enforcement agency, to a person with authority over the employee or another
employee who has the authority to investigate, discover, or correct the
violation or noncompliance . . . if the employee has reasonable cause to
believe that the information discloses a violation of state or federal statute,
or a violation of or noncompliance with a local, state, or federal rule or regulation,
regardless of whether disclosing the information is part of the employee's job
duties.”
“To establish a prima facie case for
whistleblower liability, a plaintiff must show that he or she was subjected to
adverse employment action after engaging in protected activity and that there
was a causal connection between the two.’ [Citation.] Protected activity is the
disclosure of or opposition to ‘a violation of state or federal statute,
or a violation or noncompliance with a state or federal rule or regulation.’
” (Edgerly v. City of Oakland (2012) 211 Cal.App.4th 1191, 1199.)
To state
his claim under Section 1102.5, Plaintiff must allege that he engaged in
protected conduct under that section. In the SAC, Plaintiff alleges that he
“complained in writing and in interviews about being harassed by them” due to
his military status, race, and color, and as a result was retaliated against
and placed on administrative leave. (SAC ¶ 31.)
These allegations are insufficient to show
that Plaintiff engaged in protected conduct for purposes of this cause of
action, given the lack of specificity regarding the writings and interviews in
which Plaintiff made his complaints of discriminatory conduct. An employee’s
disclosures are protected under Section 1102.5 only when they are made “to a
government or law enforcement agency, to a person with authority over the employee
or another employee who has the authority to investigate, discover, or correct
the violation or noncompliance, or for providing information to, or testifying
before, any public body conducting an investigation, hearing, or inquiry.”
(Lab. Code, § 1102.5, subd. (b).) Plaintiff has failed to plead who his written
complaints were directed to or the context of the interviews in which he
expressed his complaints. Consequently, Plaintiff has not pled the element of
protected conduct, and so fails to allege a prima facie case under Section
1102.5. The demurrer is therefore sustained as to the third cause of action.
Sixth Cause of Action for Violation of Education Code
Plaintiff’s
sixth cause of action is for “Violation of Education Code Regarding Unlawful Investigations
and Unlawful Use of Paid Administrative Leave Against All Defendants.”
Plaintiff alleges under this claim that “Defendants
breached their duties to uphold the laws under the Education Code,” and that
“these breaches were arbitrary, capricious, intentional and in reckless
disregard . . .” (SAC ¶ 47.) The SAC does not identify any specific provision
of the Education Code that Defendants allegedly violated. Plaintiff’s
Opposition also fails to identify any specific statute on which this cause of action
may be based, and presents no substantive argument in support of the claim. The
allegations in the SAC are clearly insufficient to state a claim under the
Education Code. The demurrer is sustained as to the sixth cause of
action.