Judge Cherol J. Nellon, Case Number: 22STCV01287, Date: 2023-10-31 Tentative Ruling

Plaintiff is a Sheriff’s Deputy who alleges that the (now former) Sheriff demoted her because she washed someone out of the Sheriff’s Academy. That someone was a friend of the then-Sheriff’s wife.

On November 2, 2023, Plaintiff filed her Fourth Amended Complaint (“4AC”) for (1) Retaliation (Labor Code § 1102.5, (2) Disability Discrimination, (3) FEHA Harassment, (4) FEHA Retaliation, (5) Failure to Prevent, (6) CFRA Violation; and (7) Breach of Mandatory Duty against Defendants County of Los Angeles (“County”) and DOES 1-99.

Defendant now demurs to the third cause of action in the 4AC, on the grounds that Plaintiff has failed to properly plead a claim for FEHA harassment.

The elements of a FEHA harassment claim are: (1) plaintiff belongs to a protected group; (2) plaintiff was subject to unwelcome harassment; (3) the harassment complained of was based on his protected characteristics; (4) the harassment complained of was sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment and (5) respondeat superior. See Fisher v. San Pedro Penninsula Hospital (1989) 214 Cal.App.3d 590, 608.

Defendant County argues that they cannot be liable because Plaintiff’s alleged harasser, Vivian Villanueva, was not an employee of the County. But Government Code § 12940(j)(1) expressly provides that an employer “may also be responsible for the acts of nonemployees… if the employer, or its agents or supervisors, knows or should have known of the conduct and fails to take immediate and appropriate corrective action.”[1] Plaintiff has pled that Ms. Villanueva functioned as though she were an executive of the Sheriff’s Department, and that her behavior was known to other executives there. (FAC ¶¶ 37-40). That is sufficient, for pleading purposes, to render the County responsible for Ms. Villanueva’s behavior.

Next, the demurrer suggests that Plaintiff’s alleged harassment was not connected to her membership in any protected class. But the alleged harassment included various uses of gendered epithets. (FAC ¶ 35). For pleading purposes, that is sufficient to connect the harassment to Plaintiff’s gender, which is a protected characteristic. See Miller v. Department of Corrections (2006) 36 Cal.4^th 446, 461.

Finally, the County challenges the fourth element, arguing that things weren’t severe and pervasive enough to constitute harassment. However, the legislature has effectively made this argument unavailable to defendants short of trial. Government Code § 12923, effective as of January 1, 2019, provides in relevant part as follows:

“The Legislature hereby declares its intent with regard to application of the laws about harassment contained in this part.

(b) A single incident of harassing conduct is sufficient to create a triable issue regarding the existence of a hostile work environment if the harassing conduct has unreasonably interfered with the plaintiff's work performance or created an intimidating, hostile, or offensive working environment…

(c) The existence of a hostile work environment depends upon the totality of the circumstances and a discriminatory remark, even if not made directly in the context of an employment decision or uttered by a nondecisionmaker, may be relevant, circumstantial evidence of discrimination. In that regard, the Legislature affirms the decision in Reid v. Google, Inc. (2010) 50 Cal.4th 512 in its rejection of the “stray remarks doctrine.”

(e) Harassment cases are rarely appropriate for disposition on summary judgment. In that regard, the Legislature affirms the decision in Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243 and its observation that hostile working environment cases involve issues “not determinable on paper.””

These provisions effectively remove the court’s ability to say, at a demurrer, that there is no viable harassment claim. Even at summary judgment, where the court and parties have a better picture of the evidence, the court is warned off making a decision. Essentially the only way to challenge these claims, short of trial, is to prove (1) that nothing actually happened or (2) that whatever did happen had no connection to the particular protected characteristic at issue. The first simply cannot be done on demurrer, and the second (as already discussed) is difficult to accomplish.

Defendant asks the court to strike the demurrer as untimely, suggesting that Plaintiff’s counsel filed a false declaration for an extension. (Opposition p. 4). The court declines the request for practical reasons – failure to state a cause of action is a jurisdictional defect that the court is obliged to address at any stage, so there is no reason to put it off. See Drink Tank Ventures LLC v. Real Soda in Real Bottles, Ltd. (2021) 71 Cal.App.5^th 528, 533. But the court is concerned about the tone of the exchange between counsel.

The 4AC was filed and served on November 2, 2023. The statutory response deadline was December 4, 2023. Code of Civil Procedure § 430.40(a). A declaration seeking an automatic, 30-day extension of that time pursuant to Code of Civil Procedure § 430.41(a)(2) was filed on December 28, 2023. The declaration is a pre-filled form provided by the Judicial Council, with a space for counsel to add an attachment. The attachment Defense counsel included with their filing explains precisely the same facts (albeit from a different perspective) that Plaintiff’s counsel supplies in their opposition.

The court wants the record to be clear: the court does not believe that any false declaration has been filed, or that any attempt at deception has been made. Counsel have been reminded once of their civility obligations (Court Order filed July 27, 2022, p. 6-7), and have responded well in the months since. The court expects counsel to maintain their good habits in that respect.

Plaintiff has properly pled that Ms. Villanueva harassed her, and that Ms. Villanueva’s conduct was known to the leadership of the Sheriff’s department. That is sufficient to state a cause of action against Defendant County. Therefore, the demurrer is OVERRULED. Defendant County is to file its Answer within 10 days.

[1] It is true, as Defendant County points out in reply, that the next sentence reads “In reviewing cases involving the acts of nonemployees, the extent of the employer's control and any other legal responsibility that the employer may have with respect to the conduct of those nonemployees shall be considered.” But that is fundamentally a factual and evidentiary question which the court could only dispose on demurrer if a lack of control were evident on the face of the pleadings. It is not.