Judge: Colin Leis, Case: 22STCV14854, Date: 2023-04-21 Tentative Ruling

Case Number: 22STCV14854    Hearing Date: April 21, 2023    Dept: 74

SUPERIOR COURT OF CALIFORNIA 

COUNTY OF LOS ANGELES – CENTRAL DISTRICT 

DEPARTMENT 74 

MOVING PARTIES:             Defendant City of Los Angeles.

RESPONDING PARTY:       Plaintiff Samuel Tapia

The court considered the moving papers, oppositions, and replies.

BACKGROUND

            This action arises out of an employment dispute.

            On May 4, 2022, Plaintiff Samuel Tapia (Plaintiff) filed a complaint against Defendant City of Los Angeles (Defendant). In it, Plaintiff alleged failure to prevent discrimination and harassment in violation of the Fair Employment and Housing Act (FEHA), retaliation in Violation of FEHA, whistleblower retaliation in violation of Labor Code section 1102.5, and wrongful termination in violation of FEHA.

            On October 26, 2022, Plaintiff filed a first amended complaint (FAC), alleging two additional causes of action: harassment on the basis of sex in violation of FEHA and discrimination on the basis of sex in violation of FEHA.

            On November 17, 2022, Defendant filed this demurrer as to Plaintiff’s causes of action for discrimination on the basis of sex in violation of FEHA, whistleblower retaliation in violation of Labor Code section 1102.5, and wrongful termination in violation of FEHA. Defendant also filed a motion to strike Plaintiff’s fifth cause of action for whistleblower retaliation.

DEMURRER

Legal Standard 

            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¿¿.) “¿To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged.¿” (¿¿C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872¿¿.) For the purpose of testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded. (¿Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967¿.) A demurrer “¿does not admit contentions, deductions or conclusions of fact or law.¿” (¿¿Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713¿¿.)

            Plaintiff’s Second Cause of Action for FEHA Discrimination.

            A claim for discrimination under FEHA requires a showing of (1) the employee’s membership in a classification protected by the statute, (2) discriminatory animus on the part of the employer toward members of the classification, (3) an action by the employer adverse to the employee’s interests, (4) a causal link between the discriminatory animus and causal action, (5) damage to the employee, and (6) a causal link between the adverse action and the damage. (McCaskey v. California State Automobile Assn. (2010) 189 Cal.App.4th 947, 979.)

            Defendant takes issue with Plaintiff’s allegations in support of the first prong of this cause of action. Plaintiff has pleaded that he is male. (FAC, ¶ 8, 10.) As such, he is a member of a protected class under FEHA (i.e., sex, gender, gender identity, gender expression). (Gov. Code, § 12940, subd. (a).) But Defendant argues Plaintiff has not pleaded facts demonstrating how his gender motivated the alleged discrimination and harassment that caused his constructive termination. That is, Plaintiff has not alleged that he has been treated differently from his non-male colleagues. However, one of Defendant’s female employees allegedly hurled homophobic slurs at Plaintiff. (FAC, ¶ 11.) Defendant makes the case that the insult only addresses Plaintiff’s perceived sexual orientation, a protected class to which Plaintiff has not alleged he belongs. (Reply, at pp. 2-3.) But the slur in question is one typically directed at men. Accordingly, the court overrules Defendant’s demurrer as to the second cause of action.

            Plaintiff’s Fifth Cause of Action for Whistleblower Retaliation in Violation of the      Labor Code Section 1102.5.

            Defendant argues that Plaintiff has not alleged facts sufficient to state a cause of action for whistleblower retaliation under Labor Code section 1102.5 because Plaintiff has not alleged compliance with Government Code section 945.4, which required a timely filing of a California government tort claim with Defendant. Plaintiff alleges timely filing of administrative complaints with the Department of Fair Employment and Housing (DFEH). (FAC, ¶ 15.) But filing an administrative claim with DFEH is different from filing a claim under the Government Claims Act, which required Plaintiff to “timely file a claim for money or damages with the public entity [(Gov. Code, § 911.2.] The failure to do so bars the plaintiff from bringing suit against that entity. [(Gov. Code, § 945.4.)].” (J.J. v. County of San Diego (2014) 223 Cal.App.4th 1214, 1219; Le Mere v. Los Angeles Unified School Dist. (2019) 35 Cal.App.5th 237, 246-247.) The court thus sustains Defendant’s demurrer to the fifth cause of action with leave to amend.

            Plaintiff’s Sixth Cause of Action for Wrongful Termination.

            Defendant contends that Plaintiff’s sixth cause of action is subject to demurrer because it is uncertain. Not so. Plaintiff alleges Defendant subjected Plaintiff to sex discrimination sufficiently severe to making working conditions intolerable, constituting constructive termination. Plaintiff’s allegations are therefore sufficiently certain to survive a demurrer. (See Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616 [“demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.”].)

MOTION TO STRIKE

            Defendant’s motion to strike is moot because the court has sustained Defendant’s demurrer to Plaintiff’s fifth cause of action (with leave to amend.)

CONCLUSION

Based on the foregoing, the court overrules Defendant’s demurrer to the second and sixth causes of action. The court sustains Defendant’s demurrer to the fifth cause of action with leave to amend.

Defendant’s motion to strike is moot.

Plaintiff must file his amended complaint within 20 days of this order. If Plaintiff elects not to file an amended complaint, Defendant must file its answer within 30 days of this order.

            Defendant is ordered to give notice of this ruling. 

IT IS SO ORDERED. 

DATED:  ¿April 21, 2023

_____________________________ 

Colin Leis 

Judge of the Superior Court