Judge Christopher K. Lui, Case Number: 22STCV29815, Date: 2023-11-30 Tentative Ruling

Judge: Christopher K. Lui, Case: 22STCV29815, Date: 2023-11-30 Tentative Ruling

Case Number: 22STCV29815 Hearing Date: November 30, 2023 Dept: 76

Pursuant to California Rule of Court 3.1308(a)(1), the Court does not desire oral argument on the motion addressed herein. Counsel must contact the staff in Department 76 to inform the Court whether they wish to submit on the tentative, or to argue the matter. As required by Rule 3.1308(a), any party seeking oral argument must notify ALL OTHER PARTIES and the staff of Department 76 of their intent to appear and argue.

Notice to Department 76 may be sent by email to smcdept76@lacourt.org or telephonically at 213-830-0776.

Per Rule of Court 3.1308, if notice of intention to appear is not given, the Court may adopt the tentative ruling as the final ruling.

Plaintiff alleges that Defendant has discriminated against Plaintiff because of his physical disability and has failed to grant him a reasonable accommodation of his disability.

Defendant City of Los Angeles demurs to the First Amended Complaint and moves to strike portions thereof.

TENTATIVE RULING

Defendant City of Los Angeles’s demurrer to the Complaint is OVERRULED as to the first, fourth, fifth and sixth causes of action.

The motion to strike the request for punitive damages at ¶ 58, page 12:19 is GRANTED without leave to amend.

Defendant is to answer the remaining allegations of the First Amended Complaint within 10 days.

ANALYSIS

Demurrer

Request For Judicial Notice

Defendant requests that the Court take judicial notice of the following: (1) HENRY HOJJATI, Plaintiff v. CITY OF LOS ANGELES, DEFENDANTS, Case

Number 22STCV29815, Summons and Complaint for Damages filed with the Los Angeles Superior Court on September 13, 2022. A true and correct copy is attached hereto as Exhibit A; (2) HENRY HOJJATI, Plaintiff v. CITY OF LOS ANGELES, DEFENDANTS, Case Number 22STCV29815, Minute Order Sustaining Defendant City of Los Angeles Demurrer against Plaintiff’s Original Complaint filed with the Los Angeles Superior Court on May 04, 2023. A true and correct copy is attached hereto as Exhibit B; (3) HENRY HOJJATI, Plaintiff v. CITY OF LOS ANGELES, DEFENDANTS, Case Number 22STCV29815, First Amended Summons and Complaint for Damages filed with the Los Angeles Superior Court on June 05, 2023. A true and correct copy is attached hereto as Exhibit C.

Requests Nos. 1 – 3 are GRANTED per Evid. Code, § 452(d)(court records).

Meet and Confer

The Declaration of Joseph Briones reflects that Plaintiff’s counsel did not respond to meet and confer efforts. This satisfies Civ. Proc. Code, 430.41(a)(3)(B).

Discussion

Defendant City of Los Angeles demurs to the Complaint demurs to the First Amended Complaint as follows:

1. First Cause of Action (Discrimination Based on Physical Disability Under the Fair Employment and Housing Act).

Defendant argues that this cause of action is not pled with the requisite specificity required for a statutory claim.

“A prima facie case for discrimination ‘on grounds of physical disability under the FEHA requires plaintiff to show: (1) he suffers from a disability; (2) he is otherwise qualified to do his job; and, (3) he was [*345] subjected to adverse employment action because of his disability.’” (Faust v. California Portland Cement Co. (2007) 150 Cal.App.4th 864, 886 [58 Cal. Rptr. 3d 729].)

(Arteaga v. Brink's, Inc. (2008) 163 Cal.App.4th 327, 344-45.)

Plaintiff alleges that his disability is transversal myelitis and related medical issues, a condition affecting his musculoskeletal system, nervous system and immune system, that limits certain major activities, including working in locations in close quarters with others may expose him to COVID-19 and its variants. (1AC, ¶ 7.)

Plaintiff alleges as follows at ¶ 8:

8. During 2022 and thereafter, plaintiff has been discriminated against by defendant because he has the above-described disability. Specifically, among other things, despite the fact that plaintiff has fully performed the entirety of his job in a manner which exceeds the expected standards of defendants, as shown by, among other facts, his performance evaluation for the year ending December 31, 2022, a true and correct copy of which is attached to this complaint as Exhibit 1, and which above-standard performance continues to the present, and despite being more senior to many of the non-disabled Senior Tax Auditors in defendants' employ and supervising as many or more Tax Auditors than the other Senior Tax Auditors in defendants' employ, plaintiff has been paid substantially less than said non-disabled Senior Tax Auditors performing the same duties in a manner which exceeds the standards of the defendants.

Thus, for example, for the period from May 1 2022 to May 23, 2023, plaintiff has been paid in excess of $50,000 less than the defendants' Senior Tax Auditors who are not disabled and who performed the same or lower duties than plaintiff. Plaintiff has been informed that the reasons plaintiff is being paid less than his non-disabled peers is because of his disability.

For purposes of a demurrer, this is sufficient to state a cause of action for disability discrimination, regardless of Plaintiff’s ability to prove the claim. “The sole issue raised by a general demurrer is whether the facts pleaded state a valid cause of action, not whether they are true. No matter how unlikely or improbable, plaintiff's allegations must be accepted as true for the purpose of ruling on the demurrer. (Citation omitted.) Furthermore, plaintiff's possible inability or difficulty in proving the allegations of the complaint is of no concern. (Citation omitted.)” (Kerivan v. Title Ins. & Trust Co. (1983) 147 Cal.App.3d 225, 229.)

Whether Plaintiff is actually alleging being paid less due to his disability not being accommodated is an affirmative defense relative to this discrimination claim. The Court previously ruled that the failure to accommodate is not an adverse employment action for purposes of a FEHA discrimination claim. (Brown v. L.A. Unified Sch. Dist. (2021) 60 Cal. App. 5th 1092, 1105-07.) Thus, if this is what Plaintiff is alleging, and Defendant eventually proves this, the Court will take this into consideration in ruling upon a possible claim by Defendant for attorney’s fees on the ground that the claim was frivolous.

For purposes of this demurrer, however, the claim is sufficiently pled. The demurrer to the first cause of action is OVERRULED.

2. Fourth Cause of Action (Discrimination Based on National Origin/Ancestry Under the Fair Employment and Housing Act).

Defendant argues that this cause of action is not pled with the requisite specificity required for a statutory claim.

Under the FEHA, it is unlawful for an employer, because of a protected classification, to discriminate against an employee “in compensation or in terms, conditions, or privileges of employment.” (§ 12940, subd. (a).) To state a prima facie case for discrimination in violation of the FEHA, a plaintiff must establish that (1) [ ]he was a member of a protected class, (2) [ ]he was performing competently in the position [ ]he held, (3) [ ]he suffered an adverse employment action, and (4) some other circumstance suggests discriminatory motive. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 355 [100 Cal. Rptr. 2d 352, 8 P.3d 1089].)

(Ortiz v. Dameron Hospital Assn. (2019) 37 Cal.App.5th 568, 577.)

¶ 32 alleges:

32. During 2022 and thereafter, plaintiff has been discriminated against.by defendant because . . . of his national origin/ ancestry. Specifically, among other things, despite the fact that plaintiff has fully performed the entirety of his job in a manner which exceeds the expected standards of defendants, as shown by, among other facts, his performance evaluation for the year ending December 31, 2022, a true and correct copy of which is attached to this complaint as Exhibit 1, and which above-standard performance continues to the present, and despite being more senior to many of the non-Iranian Senior Tax Auditors in defendants' employ and supervising as many or more Tax Auditors than the other Senior Tax Auditors in defendants' employ who are not of Iranian national origin / ancestry, plaintiff has been paid substantially less than said non-Iranian Senior Tax Auditors performing the same duties in a manner which exceeds the standards of the defendants.

Thus, for example, for the period from May 1 2022 to May 23, 2023, plaintiff has been paid in excess of $50,000 less than the defendants' Senior Tax Auditors who are not Iranian and who performed the same or lower duties than plaintiff. Such disparate treatment compared to persons not sharing his national origin / ancestry constituted discrimination under FEHA.

For the reasons discussed above re: the first cause of action, for purposes of a demurrer, this is sufficient to state a cause of action for national origin discrimination, regardless of Plaintiff’s ability to prove the claim.

The demurrer to the fourth cause of action is OVERRULED.

3. Fifth Cause of Action (Retaliation In Violation of FEHA).

Defendant argues that Plaintiff does not plead the protected activity as to which the alleged retaliation is directed. Plaintiff alleges the following at ¶ 40:

40. At various times in 2021, 2022 and earlier, plaintiff engaged in activities which are protected activities under the Fair Employment and Housing Act, including, but not limited to,

a) Assisting another employee by being a witness in the employee's current lawsuit;

b) Resisting and reporting and complaining to defendant's human resources and plaintiffs supervisors about discrimination directed at him due to his disability and national origin / ancestry;

c) Filing complaints on at least three occasions with the California Department of Fair Employment and Housing, including in July 2022;

d) Requesting FMLA;

e) Requesting a medical exemption and other reasonable accommodations for his disability.

During 2022 and thereafter, due at least in part because of plaintiffs engaging in said protected activities under FEHA, defendants retaliated against plaintiff. Specifically, among other things, despite the fact that plaintiff has fully performed the entirety of his job in a manner which exceeds the expected standards of defendants, as shown by, among other facts, his performance evaluation for the year ending December 31, 2022, a true and correct copy of which is attached to this complaint as Exhibit 1, and which above-standard performance continues to the present, and despite being more senior to many of the non-Iranian, non-disabled Senior Tax Auditors in defendants' employ and supervising as many or more Tax Auditors than the other Senior Tax Auditors in defendants' employ, plaintiff has been paid substantially less than said non-Iranian, non-disabled Senior Tax Auditors performing the same duties in a manner which exceeds the standards of the defendants.

Thus, for example, for the period from May 1 2022 to May 23, 2023, plaintiff has been paid in excess of $50,000 less than the defendants' Senior Tax Auditors who have not engaged in protective activities under the FEHA.

As a further result of said conduct and at least in part due to additional retaliation by defendants, plaintiff was informed that he was required to come to the defendant's work location two days per week like other employees, despite the fact that said work location was regularly the site of COVID-19 contamination and outbreaks which would subject plaintiff to life-threatening infection due to his inability to be vaccinated, his age and his compromised immune system; failing to allow plaintiff to telecommute for those two days a week despite the fact that plaintiff and all other employees had successfully telecommuted previously for more than two years, without creating any hardship to the defendants; and generally unreasonably ignoring and/or delaying all of plaintiffs reasonable requests for assistance related to his medical condition and treating said requests dismissively and with indifference. Only after defendants were served with plaintiffs complaint to the DFEH in August 2022 did defendants, in September 2022, grant plaintiffs FMLA request which had been originally requested in May 2022, approve defendant's vaccination exemption which had been originally requested in September 2021 and engage in a purported interactive process despite the fact that it was fully decided by defendants that plaintiff would not be accommodated before there was any attempt to engage in an interactive process, phony or otherwise. Plaintiff alleges that said conduct of defendants constituted illegal retaliation and was, and is, a continuing violation of plaintiffs rights under the FEHA.

(Complaint, ¶ 40.)

As with the first cause of action, for purposes of a demurrer, this is sufficient to state a cause of action for retaliation in violation of FEHA, regardless of Plaintiff’s ability to prove the claim.

Whether Plaintiff is actually alleging being paid less due to his disability not being accommodated is an affirmative defense relative to the retaliation claim. The failure to accommodate is not an adverse employment action for purposes of a FEHA discrimination claim.

For purposes of this demurrer, however, the claim is sufficiently pled. The demurrer to the fifth cause of action is OVERRULED.

4. Sixth Cause of Action (Failure to Prevent Discrimination and Retaliation from Occurring or Continuing Under the Fair Employment and Housing Act.)

Defendant argues that this cause of action fails because the underlying claims for discrimination and harassment fail. Defendant also argues that Plaintiff does not allege the date on which Plaintiff complained of discrimination or retaliation, to whom and what was communicated.

“The FEHA makes it a separate unlawful employment practice for an employer to “fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring.” (§ 12940, subd. (k).)” (State Dept. of Health Services v. Superior Court (2003) 31 Cal.4th 1026, 1040.) “The employer's duty to prevent harassment and discrimination is affirmative and mandatory.” (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 288.)

The Complaint alleges at ¶ 48 as follows:

48. At various times in 2020 and 2021 defendants engaged in conduct which constituted discrimination and retaliation because of plaintiffs disability and because of plaintiffs national origin/ancestry as hereinabove alleged, and further, because of plaintiff asking to be accommodated and making complaints about defendants' failure to accommodate plaintiff and/or treat plaintiff fairly; and plaintiff requested that such actions not occur or continue. Among other things, plaintiff communicated the foregoing to defendants' personnel in management and human resources. Despite notifying defendants of said improper and discriminatory conduct, defendants failed to take timely or reasonable action, or any action, to prevent said discrimination and retaliation from continuing.

This is sufficient to plead the cause of action, given that Plaintiff’s discrimination claims survive. Moreover, the details of Plaintiff’s complaints may be ascertained through discovery.

The demurrer to the sixth cause of action is OVERRULED.

Motion To Strike

Request For Judicial Notice

Defendant requests that the Court take judicial notice of the following: (1) HENRY HOJJATI, Plaintiff v. CITY OF LOS ANGELES, DEFENDANTS, Case

Requests Nos. 1 – 3 are GRANTED per Evid. Code, § 452(d)(court records).

Meet and Confer

The Declaration of Joseph Briones reflects that Plaintiff’s counsel did not respond to meet and confer efforts. This satisfies Civ. Proc. Code, 435.5(a)(3)(B).

Discussion

Defendant City of Los Angeles moves to strike the request for punitive damages at ¶ 58, page 12:19 on the ground that punitive damages cannot be recovered against a public entity. Plaintiff does not oppose this request.

Gov. Code § 818 provides:

Notwithstanding any other provision of law, a public entity is not liable for damages awarded under Section 3294 of the Civil Code or other damages imposed primarily for the sake of example and by way of punishing the defendant.

The motion to strike the request for punitive damages at ¶ 58, page 12:19 is GRANTED without leave to amend.

Defendant is to answer the remaining allegations of the First Amended Complaint within 10 days.