Judge: Carolyn M. Caietti, Case: 37-2022-00050111-CU-OE-CTL, Date: 2023-08-25 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - August 24, 2023

08/25/2023  02:00:00 PM  C-70 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Carolyn Caietti

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Civil - Unlimited  Other employment Demurrer / Motion to Strike 37-2022-00050111-CU-OE-CTL GAINES VS SAN DIEGO WORKFORCE PARTNERSHIP [IMAGED] CAUSAL DOCUMENT/DATE FILED: Demurrer, 03/10/2023

Defendant Peter Callstrom's Demurrer to the Complaint is OVERRULED IN PART (third and fourth causes of action) and SUSTAINED IN PART WITHOUT LEAVE TO AMEND (seventh cause of action).

Defendant San Diego Workforce Partnership's Demurrer to the Complaint is OVERRULED.

Background Plaintiff alleges she is an African American female and 'Human Resources Professional' who worked at Defendant San Diego Workforce Partnership (SDWP) and under its President and Chief Executive Officer, Defendant Peter Callstrom. In January 2021, Plaintiff was hired as the Director of People of Culture and, by July 2021, Plaintiff was promoted to Senior Director. In September 2021, Plaintiff assumed leadership of Diversity, Equity & Inclusion (DEI) activities and, in October 2021, Plaintiff assumed leadership of the Compliance department. However, in November 2021, Callstrom informed Plaintiff she would no longer be the lead on the DEI Workforce Development Board Committee and would not be participating on the Committee and, in December 2021, Callstrom removed Plaintiff from Executive Team Meetings. (Complaint, at ¶¶ 33-34.) 'From there, Callstrom engaged in a pattern and practice of harassment and retaliation in the form of hyper-focused and relentless micro-management of Plaintiff.' (Id., at ¶ 35.) In March 2022, Callstrom questioned one of Plaintiff's deliverables even though he knew Plaintiff submitted the deliverables for his approval and instructed Plaintiff not to communicate with the Executive Leadership Team. (Id., at ¶ 36.) On March 21, 2022, Plaintiff submitted a formal complaint of discrimination, retaliation, and hostile work environment, identifying Callstrom as the harasser. (Id., at ¶ 37.) On June 16, 2022, Plaintiff resigned.

Plaintiff further alleges on information and belief, many women and people of color experienced similar targeting and harassing conduct from Callstrom and reported it to SDWP. Callstrom would routinely, falsely accuse women and people of color of under-performance and ensure they were managed out.

(Complaint, at ¶ 48.) The Complaint asserts causes of action for discrimination based on race and sex, harassment based on race and sex, retaliation for opposing discrimination and harassment on the basis of race and sex, failure to take reasonable steps to prevent discrimination harassment and retaliation, unlawful retaliation in violation of Labor Code section 1102.5 and wrongful constructive termination in violation of public policy.

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2948184  45 CASE NUMBER: CASE TITLE:  GAINES VS SAN DIEGO WORKFORCE PARTNERSHIP  37-2022-00050111-CU-OE-CTL Requests for Judicial Notice Plaintiff's unopposed request for judicial notice of other trial court rulings in support of her opposition to Defendant San Diego Workforce Partnership's Demurrer (ROA 50) is granted and notice will be taken to the extent permitted.

Plaintiff's unopposed request for judicial notice of other trial court rulings in support of her opposition to Defendant Callstrom's Demurrer (ROA 47) is granted and notice will be taken to the extent permitted.

Defendant Callstrom's reply request for judicial notice of other trial court rulings (ROA 61) is granted and notice will be taken to the extent permitted.

As to all requests, however, trial court decisions are not precedents binding on other courts under the principle of stare decisis. (Harrott v. County of Kings (2001) 25 Cal.4th 1138, 1148.) Statement of the Law A demurrer 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; Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) No other extrinsic evidence can be considered (i.e., no 'speaking demurrers'). (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881.) The complaint must be liberally construed and given a reasonable interpretation, with a view to substantial justice between the parties. (Amarel v. Connell (1988) 202 Cal.App.3d 137, 140–141; see also, Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1111-12 [in ruling on demurrers, courts treat as being true 'not only the complaint's material factual allegations, but also facts that may be implied or inferred from those expressly alleged'].) Discussion Both Defendants make substantially the same arguments in their demurrers.

Harassment Based on Race and Sex The third cause of action states sufficient facts to constitute harassment based on race and the fourth cause of action states sufficient facts to constitute harassment based on sex. (Gov. Code, § 12940(j)(1); e.g., Complaint, at ¶¶ 24, 26, 28, 33, 48, 88-98 [3rd c/a], 102-111[4th c/a].) The essential facts to acquaint Defendants with the factual basis for the claims are alleged. Assuming the truth of the allegations and in liberally construing them, Plaintiff is a member of a protected class, she was subjected to unwelcome harassment, the harassment was based on her protected status and the harassment unreasonably interfered with her work performance by creating an intimidating, hostile or offensive work environment. (Thomas v. City of Monrovia (2010) 186 Cal.App.4th 860, 876 [elements]; see also, Prue v. Brady Co./San Diego, Inc. (2015) 242 Cal.App.4th 1367, 1379 (concluding the complaint alleged all facts necessary to state a cause of action for wrongful termination in violation of FEHA's public policy against disability discrimination by alleging a disability, capability of performing essential job functions, subjection to an adverse employment action because of the disability and knowledge of the disability when the defendant terminated the plaintiff's employment); Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 709 (explaining official employment actions can constitute the evidentiary basis of a harassment cause of action because those official actions can be used as the means of conveying an offensive message).) Thus, both demurrers to the third and fourth causes of action are OVERRULED.

Labor Code Section 1102.5(b) Calendar No.: Event ID:  TENTATIVE RULINGS

2948184  45 CASE NUMBER: CASE TITLE:  GAINES VS SAN DIEGO WORKFORCE PARTNERSHIP  37-2022-00050111-CU-OE-CTL Defendant Callstrum's demurrer to the seventh cause of action for retaliation for reporting illegal activity under Labor Code section 1102.5(b) is SUSTAINED WITHOUT LEAVE TO AMEND.

In 2014, the California Legislature revised Labor Code section 1102.5 to read: '[a]n employer or any person acting on behalf of the employer, shall not retaliate against an employee...' Before that amendment, courts found section 1102.5 precluded individual liability. The parties agree there are no published California court opinions addressing the issue of individual liability since the 2014 amendment to Labor Code section 1102.5. Although not bound by federal authority, the Court finds the reasoning in Tillery v. Lollis (E.D. Cal. 2015) 2015 WL 4873111 to be persuasive and that Labor Code section 1102.5(b) still precludes individual liability. (See also, Vera v. Con-way Freight, Inc. (C.D. Cal. 2015) 2015 WL 1546178 (finding the statutory text, structure and legislative history all indicate that only employers – and not individual employees – are liable for violations of the statute); Conner v. Aviation Services of Chevron, U.S.A. (N.D. Cal. 2014) 2014 WL 5768727 (finding the plaintiff failed to point to any language establishing individual liability and that Labor Code section 1104 expressly stated, in all prosecutions under the pertinent chapter, employers are responsible for acts of its manager, officers, agents and employees).) In addition, as explained in Tillery, supra, the California Supreme Court has come to the same conclusion when evaluating similarly worded statutes. (See, Reno v. Baird (1998) 18 Cal.4th 640, 645 (affirming that no individual liability exists under FEHA based on the statute's definition of 'employer' to include 'any person acting as an agent of an employer...'); Jones v. Lodge at Torrey Pines P'ship (2008) 42 Cal.4th 1158, 1162 (holding the use of the word 'person' in Gov. Code section 12940(h) [forbidding retaliation by making it unlawful for any employer or person to discharge, expel or otherwise discriminate against any person because the person has opposed any practices forbidden under this part] – does not compel the conclusion all persons engaged in prohibited retaliation are personally liable, not just the employer; and noting the Legislature can signal individual liability when it means it).) Defendant SDWP demurrers to the seventh cause of action 'as to Defendant Callstrom because such a labor code retaliation claim cannot be asserted against an individual.' For the reasons above, the Court agrees but this argument does not address nor dispose of SDWP's liability under the seventh cause of action. Thus, SDWP's demurrer to the seventh cause of action is OVERRULED.

Concluding Orders Defendants are ordered to: (i) prepare and submit an order dismissing the seventh cause of action against Defendant Callstrum only; and (ii) file and serve an answer by September 8, 2023.

If the tentative ruling is confirmed without modification, the minute order will be the Court's final order.

Defendant Callstrom is ordered to serve written notice of the Court's final order on all parties by August 29, 2023.

Plaintiff is reminded to comply with Department 70's Policies and Procedures and to provide courtesy copies of motion paperwork.

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