Judge: Cherol J. Nellon, Case: 22STCV12911, Date: 2023-08-08 Tentative Ruling

Case Number: 22STCV12911    Hearing Date: December 14, 2023    Dept: 14

Gerald Corn vs. Los Angeles Unified School District

Case Background

Plaintiff alleges that the administrators at the school where he worked punished him for trying to get help controlling an unruly student.

            On September 26, 2022, Plaintiff filed his First Amended Complaint (“FAC”) for (1) Age Discrimination, (2) Disability Discrimination, (3) Failure to Accommodate, (4) FEHA Retaliation, (5) Intentional Infliction of Emotional Distress (“IIED”), (6) Harassment, (7) Failure to Prevent, (8) Violation of Article I, section 3 of the California Constitution, (9) Violation of Education Code § 44031, and (10) Breach of Contract against Defendants Los Angeles Unified School District (“District”) and DOES 1-50.

On February 14, 2023, pursuant to a peremptory challenge filed by Defendant District, the case was reassigned to this department.

On August 8, 2023, this court sustained Defendant District’s demurrer to the FAC, with 30 days leave to amend.

On September 25, 2023, Plaintiff filed his Second Amended Complaint (“SAC”) for (1) Age Discrimination, (2) Disability Discrimination, (3) Failure to Accommodate, (4) FEHA Retaliation, (5) Intentional Infliction of Emotional Distress (“IIED”), (6) Harassment, (7) Failure to Prevent, (8) Violation of Article I, section 3 of the California Constitution, (9) Violation of Education Code § 44031, and (10) Breach of Contract against Defendants District and DOES 1-50.

No trial date has yet been set.

(1)       Demurrer

Defendant District now demurs to the First Amended Complaint on the grounds that it fails to state facts sufficient to support any cause of action and is uncertain.

Decision

            The demurrer to the fifth, eighth, ninth, and tenth causes of action is SUSTAINED, without leave to amend.

            The demurrer to the first, second, third, fourth, sixth, and seventh causes of action is SUSTAINED, with 30 days leave to amend.

Discussion

Facts As Alleged

The factual allegations in the SAC are set forth in paragraphs 10-37. They describe a course of events that began in 2017. During the fall of that year, Plaintiff had a disruptive student in his classroom. (SAC ¶ 16). Plaintiff reported his problems and asked to have the student removed. (SAC ¶¶ 16, 18). Nothing happened. (SAC ¶ 18).

Plaintiff appealed to a superintendent, and the student was eventually moved. (SAC ¶ 19). However, this appeal brought negative consequences for Plaintiff from his immediate administrative superiors, including disciplinary proceedings, that continued through the spring of 2018. (SAC ¶¶ 17, 20-32).

Plaintiff also complains that documents which were inserted in his file in 2001 should have been expunged. (SAC ¶ 35). Plaintiff went out on medical leave on April 4^th, 2019. (SAC ¶ 13). He complains that the District sought to terminate this medical leave in March of 2020. (SAC ¶ 37).

Administrative Remedies       

Each of Plaintiff’s causes of action is subject to statutory, pre-litigation requirements. The first, second, third, fourth, sixth, and seventh causes of action are all FEHA claims, and are therefore subject to the requirement of filing a claim with the Department of Fair Employment and Housing (“DFEH”). The fifth, eighth, ninth, and tenth causes of action are all more general claims which are subject to the requirements of the Government Claims Act. Each process is discussed in turn.

FEHA Claims

            To succeed on a FEHA claim, Plaintiff is obliged to both plead and prove that he first exhausted his administrative remedies by filing a proper and timely complaint with the Department of Fair Employment and Housing (“DFEH”) and awaiting the decision of that body to act (or not). Kim v. Konad USA Distribution, Inc. (2014) 226 Cal.App.4^th 1336, 1345. This means that there are effectively two limitations periods that apply in FEHA actions: the limitations period for filing the administrative complaint, and the limitations period for filing the lawsuit after the administrative process is over.

Currently, the administrative filing must be made within three years of the act that causes the complaint. Government Code §§ 12960(c), (e)(5) (“[a] complaint… shall not be filed after the expiration of three years from the date upon which the unlawful practice or refusal to cooperate occurred”). The lawsuit must then be filed within one year after the administrative process concludes. Government Code §§ 12965(c)(1)(C), (e)(1), (f)(1).

However, the limitations period that applies to any given wrong is the limitations period as it existed when the alleged wrong was committed. Code of Civil Procedure § 3; Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1205-06.

Prior to 2020, the administrative statute of limitations for filing a complaint with the DFEH was only one year. See 2019 Cal. Legis. Serv. Ch. 709 (A.B. 9) (West). The statute of limitations became three years on January 1, 2020.

Plaintiff did not file his DFEH complaint until April 20, 2021. Therefore, to remain actionable, any alleged violation must have continued into 2020, and therefore be covered by the new three-year statute rather than the old one-year statute.

The only act which Plaintiff says occurred in 2020 was the denial of his continuing medical leave. Only actions which can be legally connected to this event may escape the statute of limitations bar. See Aryeh v. Canon Business Solutions, Inc. (2013) 55 Cal.4^th 1185, 1197-98.

Other Claims

            Defendant District is a governmental entity covered by the Governmental Claims Act. If a person has a cause of action against such an entity, they cannot sue until they go to that entity and present a claim detailing their injury. Government Code §§ 905, 910-911, 945.4. The claim must be presented within six months of accrual (for torts) or within one year of accrual (for contracts). Government Code § 911.2.

While Plaintiff’s FEHA claims are excepted from the requirements of the Governmental Claims act (see See Lozada v. City and County of San Francisco (2006) 145 Cal.App.4^th 1139, 1153), his remaining claims are not. Plaintiff has an affirmative obligation to plead compliance with the Governmental Claims Act. J.M. v. Huntington Beach Union High School District (2017) 2 Cal.5^th 648, 652.

On August 8, 2023, this court sustained Defendant District’s demurrer to the FAC, based in part on Plaintiff’s failure to plead compliance with the Governmental Claims Act. The court granted leave to amend to give Plaintiff a chance to plead compliance. He has not made any attempt to plead compliance in the SAC. Therefore, the court sees no probability now that he will be able to do so.

First Cause of Action: Age Discrimination

            To plead a case for discrimination under FEHA, Plaintiff must allege specific facts which show “that (1) he was a member of a protected class, (2) he was qualified for the position he sought or was performing competently in the position he held, (3) he suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some other circumstance suggests discriminatory motive.” Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4^th 317, 355.

            Plaintiff pleads this cause of action at paragraphs 38-49 of the SAC. But nothing in those paragraphs connects anything that happened to plaintiff to his age. There are no specific facts to show that any action was taken against plaintiff because of his age.

Second Cause of Action: Disability Discrimination

            To establish a cause of action for disability discrimination, Plaintiff must plead that he: (1) suffered from a disability, or was regarded as suffering from a disability; (2) could perform the essential duties of the job with or without reasonable accommodations, and (3) was subjected to an adverse employment action [(4)] because of the disability or perceived disability. Sandell v. Taylor-Listug, Inc. (2010) 188 Cal.App.4^th 297, 310.

            Plaintiff pleads this cause of action at paragraphs 50-68, but he does not identify his disability. He pleads, in conclusory fashion, that he suffered “work-related injuries” (SAC ¶ 56) which “curtailed one or more crucial life activities.” (SAC ¶ 60). This is too vague. Plaintiff must plead what these injuries were, and how they were connected with what happened to him.

Third and Cause of Action: Failure to Accommodate

            This claim depends upon an adequate pleading of the Plaintiff’s disability. See Scotch v. Art Institute of California-Orange County, Inc. (2009) 173 Cal.App.4^th 986, 1009-1010. Because Plaintiff has not properly pled a disability, this claim cannot proceed.

Fourth Cause of Action: Retaliation

            To make a case for FEHA retaliation, Plaintiff must allege facts to show that (1) he engaged in activity protected by FEHA, (2) he was subjected to an adverse employment action, and (3) there is some other circumstance which suggests a causal link between the two. Morgan v. Regents of University of Cal. (2000) 88 Cal.App.4^th 52, 69-70. Government Code § 12940(h) provides that a person has engaged in protected activity wherever they have “opposed any practices forbidden under this part or…filed a complaint, testified, or assisted in any proceeding under this part.”

            The phrase “this part” refers to Government Code §§ 12900-12999. Plaintiff only has a FEHA retaliation claim if he can allege that he opposed a practice forbidden by one of those code sections, or that he previously participated in a legal proceeding authorized by one of those code sections.

In his pleading of this claim, Plaintiff identifies his filing of a “Retaliation complaint with the Department of Labor.” (SAC ¶ 80). It is unclear what that complaint was, what procedure it employed, or whether it addressed anything covered by Government Code §§ 12900-12999. Plaintiff also refers to a writ proceeding which took place pursuant to the Education Code. (SAC ¶ 81). But FEHA only covers writ proceedings where they occur pursuant to FEHA – that is, they allege violations of Government Code §§ 12900-12999.

Plaintiff has not yet sufficiently identified a protected activity which would allow him to plead a claim for FEHA retaliation.

Sixth Cause of Action: Harassment

            Plaintiff attempts to plead that he was harassed based on age, gender, and disability. (SAC ¶¶ 100-113). But there is nothing in the pleadings which connects anything that happened to Plaintiff to his age or gender. And as explained above, Plaintiff has failed to properly plead a disability. Therefore, Plaintiff has not sufficiently pled this claim.

Seventh Cause of Action: Failure to Prevent

            This cause of action can only be prosecuted if there is a viable claim for discrimination, harassment, or retaliation. Dickson v. Burke Williams, Inc. (2015) 234 Cal.App.4^th 1307, 1314-15; Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4^th 280, 284-285. Since Plaintiff’s other FEHA claims have not properly been pled, this one cannot proceed.

Conclusion

            Plaintiff has now pled facts which may satisfy the FEHA statute of limitations. However, he has failed to properly plead the elements of any FEHA claim. On the other hand, Plaintiff’s non-FEHA claims are barred because he failed to allege compliance with the Government Claims Act. It appears that Plaintiff cannot allege such compliance.

Therefore, the demurrer to the fifth, eighth, ninth, and tenth causes of action is SUSTAINED, without leave to amend.

            The demurrer to the first, second, third, fourth, sixth, and seventh causes of action is SUSTAINED, with 30 days leave to amend.

(2)       Motion to Strike

            Defendant District now moves this court for orders (1) striking the entire SAC because it was filed one day late, and (2) striking the punitive damages allegations, the prejudgment interest allegations, and any allegation which is barred by the statute of limitations.

Decision

            The motion to strike the SAC as untimely filed is DENIED. The error of one day is de minimus. The remainder of the motion is TAKEN OFF-CALENDAR as MOOT.