Judge Bruce G. Iwasaki, Case Number: 23STCV00688, Date: 2023-09-29 Tentative Ruling

Tentative Ruling: The Demurrer to the eighth cause of action in the First Amended Complaint is sustained without leave to amend. The Motion to Strike is granted without leave to amend.

This action arises out of an employment dispute. Plaintiff Lynette Whiting (Plaintiff) alleges that, while working for Defendants California Department of Corrections and Rehabilitation and California Correctional Health Care Services (Defendants), she was discriminated against, harassed, and retaliated against because of her membership in several protected status groups. She further alleges that Defendants failed to accommodate her disability.

On January 12, 2023, Plaintiff filed a Complaint. On July 5, 2023, Plaintiff filed a First Amended Complaint alleging causes of action for (1.) discrimination based on FEHA, (2.) harassment based on FEHA (3.) retaliation based on FEHA, (4.) failure to engage in the interactive process under FEHA, (5.) failure to accommodate under FEHA, (6.) failure to prevent discrimination and harassment, (7.) a violation of Labor Section 1102.5, and (8.) violation of Labor Code section 6310.

Defendant California Department of Corrections and Rehabilitation and the California Correctional Health Care Services (jointly, CDCR) demur to the eighth cause of action based on Plaintiff’s failure to comply with the Government Tort Claims Act (ACT). Defendants also move to strike certain allegations underlying the discrimination and harassment claim. Plaintiff filed an opposition to both the demurrer and the motion to strike.

The demurrer to the eighth cause of action is sustained without leave to amend. The motion to strike is granted without leave to amend.

A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice. (Code Civ. Proc., § 430.30, subd. (a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The purpose of a demurrer is to challenge the sufficiency of a pleading “by raising questions of law.” (Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.) “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” (Code Civ. Proc., § 452.) The court “ ‘ “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law . . . .” ’ ” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525.) In applying these standards, the court liberally construes the complaint to determine whether a cause of action has been stated. (Picton v. Anderson Union High School Dist. (1996) 50 Cal.App.4th 726, 733.)

Defendants demur to the eighth cause of action on the ground that Plaintiff failed to plead facts demonstrating she complied with the requirements of Government Tort Claims Act (Act).

Government Code section 945.4 states: “[N]o suit for money or damages may be brought against a public entity on a cause of action for which a claim is required to be presented ... until a written claim therefor has been presented to the public entity and has been acted upon by the board, or has been deemed to have been rejected by the board....” The Government Tort Claims Act requires that a plaintiff present a tort claim for money or damages within six months before filing a lawsuit against certain public entities. (Gov. Code, §§ 900.4, 900.6, 905, 911.2; see DiCampli-Mintz v. County of Santa Clara (2012) 55 Cal.4th 983, 991.) Failure to present a timely claim bars litigation against the public entity. (Gov. Code, § 945.4.)

Here, the eighth cause of action alleges violation of Labor Code section 6310, which prohibits the firing of an employee who complains to a governmental agency having responsibility for regulating safety in the relevant industry. Based on the FAC, Plaintiff is seeking compensatory damages under this claim. (See FAC ¶ 67; id., Prayer for Relief, ¶ 1.) Plaintiff does not, however, allege in her FAC that she presented a claim for damages to her public entity employer before she commenced this action.

Plaintiff does not dispute that the FAC lacks allegations that she complied with Government Code section 945.4. Instead, Plaintiff argues she was not required to comply with the requirements of the Act, citing Kappelman v. City & County of San Francisco (N.D. Cal., Oct. 27, 2015, No. 14-CV-04434-MEJ) 2015 WL 6471184.

The sole issue in this demurrer is whether Plaintiff was required to submit a government tort claim under Government Code section 945.4 prior to filing suit against her government employer for violation of Labor Code section 6310.

In support of its demurrer, Defendant cites the following cases: Le Mere v. Los Angeles Unified School Dist. (2019) 35 Cal.App.5th 237, E.M. v. Los Angeles Unified School District (2011) 194 Cal.App.4th 736, State of California v. Superior Court (2004) 32 Cal.4th 1234, City of Stockton v. Superior Court (2007) 42 Cal.4th 730, and Phillips v. Desert Hospital Dist. (1989) 49 Cal.3d 699.

In response, Plaintiff argues that these authorities do not specifically pertain to her retaliation claim under Labor Code section 6310.[1]

Plaintiff relies on the federal district court opinion in Kappelman v. City & County of San Francisco (N.D. Cal., Oct. 27, 2015, No. 14-CV-04434-MEJ) 2015 WL 6471184. There, the court determined that a government employee’s retaliation claim under Labor Code section 6310 was not barred by his failure to file a claim under the Government Claims Act because Section 6310 is silent as to administrative remedies. The federal court relied on a 2014 amendment to the Labor Code that was codified in Labor Code section 244.

Labor Code section 244, subdivision (a), provides in part that “[a]n individual is not required to exhaust administrative remedies or procedures in order to bring a civil action under any provision of this code, unless that section under which the action is brought expressly requires exhaustion of an administrative remedy.” Labor Code section 244 eliminates confusion on whether a litigant must exhaust administrative remedies and only requires such action where the specific Labor Code statute requires it.

For example, in Sheridan v. Touchstone Television Productions, LLC (2015) 241 Cal.App.4th 508, the court examined whether there was a requirement to comply with the administrative remedies in bringing a claim under Labor Code sections 98.7 and 6312.[2] The court explained:

“Before the 2013 amendments, sections 98.7 and 6312 permitted but did not require plaintiffs to resort to administrative procedures. The California Supreme Court had not settled the issue, and Lloyd had held that exhaustion under section 98.7 was not required before filing suit under section 1102.5. (Satyadi, supra, 232 Cal.App.4th at p. 1032, 182 Cal.Rptr.3d 21.) Thus, exhaustion of the remedy provided by section 98.7 was not required, and the 2013 enactments simply clarified this point. (Ibid.) The same reasoning applies to section 6312, which, like section 98.7, does not require administrative exhaustion and had not been “finally and definitively interpreted.” (McClung, supra, 34 Cal.4th at p. 473, 20 Cal.Rptr.3d 428, 99 P.3d 1015.) Sheridan therefore was not required to exhaust her administrative remedies before filing suit for a violation of section 6310.” (Id. at 517.)

However, the question on this demurrer is whether Labor Code section 244, which concerns whether administrative remedies must be exhausted, applies to the claim presentation requirement of Government Code section 945.4. Are these two pre-suit procedures identical? Kappelman seems to assume they are, but California cases have never treated them as one and the same.

Cases that have analyzed Labor Code section 244 have repeatedly explained that it did not change existing law but merely “clarified” it. (See Terris v. County of Santa Barbara (2018) 20 Cal.App.5th 551, 556 [Section 244 “merely clarifies existing law”]; see also Satyadi v. West Contra Costa Healthcare Dist. (2014) 232 Cal.App.4th 1022, 1032 [same].)

Here, there is no argument that the claim presentation requirement of Government Code section 945.4 applied to claims like this one before enactment of Labor Code section 244.

In contrast, the ruling in Kappelman (which is not binding on this Court) would have the effect of changing the law by removing an undisputed pre-suit requirement that parties seeking money damages from a governmental entity present tort claims. This result is contrary to the intent of Section 244, which the Court of Appeal indicated applied “only to claims before the Labor Commissioner.” (Terris v. County of Santa Barbara (2018) 20 Cal.App.5^th 551, 553.)

The requirement of pre-suit claim presentation has been affirmed in analogous cases. Le Mere v. Los Angeles Unified School District (2019) 35 Cal.App.5th 237, held that a claimant must comply with the Government Claims Act to assert a whistleblower retaliation cause of action under Labor Code section 1102.5. (Id. at 245-257.) In contrast, Satyadi v. West Contra Costa Healthcare Dist. (2014) 232 Cal.App.4th 1022, held that a plaintiff was not required to exhaust her remedy before the Labor Commissioner prior to filing suit under Labor Code section 1102.5. (Id. at 1033.) These decisions demonstrate that it is incorrect to equate the filing of a tort claim with administrative exhaustion.

Defendant cites other case authority distinguishing compliance with the Government Tort Claims Act with administrative exhaustion procedures. (See Lozada v. City and County of San Francisco (2006) 145 Cal.App.4th 1139, 1153 [requiring compliance with the Government Tort Claims Act in the context of a POBRA claim while acknowledging that Government Code section 3309.5 eliminated the requirement that a party to comply with any administrative remedies prior to filing an action in court].)

Accordingly, Labor Code section 244 offers no exception to Plaintiff’s requirement to submit a timely claim under Government Code section 945.4 before filing this action. The demurrer to the eighth cause of action is sustained without leave to amend.

“The court may, upon a motion made pursuant to Section 435, 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. (b) Strike out 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.”¿(Code Civ. Proc. § 436.) “Immaterial” or “irrelevant” matters include allegations not essential to the claim, allegations neither pertinent to nor supported by an otherwise sufficient claim or a demand for judgment requesting relief not supported by the allegations of the complaint. (Code Civ. Proc. § 431.10, subds. (b)(1)-(3).)

Defendants also move to strike certain allegations underlying the discrimination and harassment causes of action.

Specifically, Defendant moves to strike portions of Paragraph 25 “… refusal to provide, offer and/or consider reasonable accommodation, refusal to engage in the interactive process, refusal to prevent, investigate and/or correct violations of the FEHA …” and portions of Paragraph 30, “… forcing Plaintiff to make repeated requests for accommodation and attempts to invoke the interactive process, failing to engage in the interactive process, providing inadequate restroom facilities . . ..”

To support her discrimination claim, Plaintiff alleges that Defendant failed to accommodate her and engage in the interactive process, and refused to prevent, investigate, and/or correct FEHA violations, which amounted to adverse employment actions. (FAC ¶ 25.) Similarly, Plaintiff alleges that she suffered harassment because Defendant failed to accommodate her and engage in the interactive process. (FAC ¶ 30 [“Defendants’ unwarranted harassing conduct included without limitation, forcing Plaintiff to make repeated requests for accommodation and attempts to invoke the interactive process, failing to engage in the interactive process, providing inadequate restroom facilities ….”].)

Citing Brown v. Los Angeles Unified School District (2021) 60 Cal.App.5th 1092, 1106-1107, Defendant argues these allegations cannot support the discrimination or harassment claim as a matter of law.

“the FEHA scheme prohibits specific unlawful employment practices by covered employers, e.g., discrimination, retaliation, failure to make reasonable accommodation, failure to engage in the interactive process with the employee. We conclude that the commission of one specific prohibited employment practice does not, in and of itself, constitute commission of all other prohibited employment practices under the broad rubric of policies or practices affecting the “terms, conditions or privileges of employment.” Such an interpretation would be contrary to the whole point of specifically separating conduct into individual unlawful employment practices.” (Id. at 1106.)

In opposition, Plaintiff argues that Brown is distinguishable from the facts here because she has alleged that her employer’s failure to accommodate her or engage in the interactive process was motivated by animus towards her due to her race and/or sex. In contrast, the Brown court specifically noted that: “Brown has not alleged she was the target of disparate treatment.” (Id. at 1107.)

While the Brown court found other defects that also supported its decision, it also separately concluded that a failure to reasonably accommodate an employee’s disability—which is a separate cause of action under FEHA (§ 12940, subd. (m))—cannot qualify as the adverse action underlying a discrimination or support a harassment claim. (Brown v. Los Angeles Unified School District (2021) 60 Cal.App.5th 1092, 1106; Doe v. Department of Corrections & Rehabilitation (2019) 43 Cal.App.5th 721, 736.) As in Brown, the FAC improperly conflates an adverse employment action for discrimination under FEHA with allegations that form a separate cause of action under FEHA.

The motion to strike is granted. The Court denies Plaintiff’s request for leave to “amend the complaint to include more detailed references to Defendants’ harassing and discriminatory conduct, including more details about how Defendants’ were hostile towards Plaintiff regarding her disability and the harassment Plaintiff experienced, and the impact these actions had on her work environment.” (Opp. 4:14-17.) Allowing this amendment will not salvage Plaintiff’s improper reliance on Defendant’s failure to accommodate her and failure to engage in the interactive process as a basis for her discrimination claim or harassment claim. Thus, Plaintiff has not demonstrated likelihood of success in amending to address the specific issue the court decided on this motion to strike.

The demurrer to the eighth cause of action is sustained without leave to amend. The motion to strike is granted without leave to amend.

[1] Plaintiff also suggests that Defendants’ demurrer fails because Defendant has not demonstrated that the California Department of Corrections and Rehabilitation is a public agency. This argument is not well taken. “CDCR is unquestionably a public entity.” (Bitner v. Department of Corrections & Rehabilitation (2023) 87 Cal.App.5th 1048, 1066.)

[2] Labor Code section 6312 is highly relevant to Labor Code section 6310; Labor Code section 6312 provides that, “[a]ny employee who believes that he or she has been discharged or otherwise discriminated against by any person in violation of Section 6310 or 6311 may file a complaint with the Labor Commissioner pursuant to Section 98.7.” [emphasis added]

Judge Bruce G. Iwasaki

Department 58