Judge Curtis A. Kin, Case 22STCV24047 2022-12-20 Tentative Ruling

Judge: Curtis A. Kin, Case: 22STCV24047, Date: 2022-12-20 Tentative Ruling

Case Number: 22STCV24047 Hearing Date: December 20, 2022 Dept: 72

DEMURRER

Date: 12/20/22 (9:30 AM)

Case: Brent Foster Beardmore v. City of El Segundo et al. (22STCV24047)

TENTATIVE RULING:

Defendants City of El Segundo, Darrell George, and Jaime Bermudez’s Demurrer to Complaint is SUSTAINED.

I. FIRST CAUSE OF ACTION: AGE DISCRIMINATION AND SECOND CAUSE OF ACTION: FAILURE TO PREVENT DISCRIMINATION

Defendants Darrell George and Jaime Bermudez demur to the first cause of action for age discrimination and second cause of action for failure to prevent discrimination on the ground that individual supervisors or coworkers cannot be held liable under the Fair Employment and Housing Act (“FEHA”). (See Compl. ¶¶ 21, 26, 28, 29 [first and second causes of action brought under FEHA].)

“[I]ndividuals who do not themselves qualify as employers may not be sued under the FEHA for alleged discriminatory acts.” (Reno v. Baird (1998) 18 Cal.4th 640, 663.) “Imposing personal liability on supervisory employees would create conflicts of interest and chill effective management while providing little or no additional protection to victims of discrimination[.]” (Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 72.)

Plaintiff agrees to the dismissal of the first and second causes of action. (Opp. at 7:1-3, 7:24-28.) Accordingly, with respect to defendants Darrell George and Jaime Bermudez, the demurrers to the first and second causes of action are SUSTAINED WITHOUT LEAVE TO AMEND.

Because defendant City of El Segundo (“City”) did not demur to the first or second causes of action, these causes of action remain against the City.

II. THIRD CAUSE OF ACTION: HARASSMENT DUE TO AGE

A. Defendants George and Bermudez

Defendants George and Bermudez demur to the third cause of action for age harassment on the ground that personal liability of a supervisor for harassment under FEHA is insufficiently pled. (See Compl. ¶¶ 3-5 [alleging that George and Bermudez have decision and policy making authority over El Segundo Police Department]; ¶ 33 [harassment cause of action brought under FEHA].)

A supervisor is liable for harassment under FEHA if: (1) the supervisor harasses the employee or (2) the supervisor aids and abets the harassment of an employee. (Fiol v. Doellstedt (1996) 50 Cal.App.4th 1318, 1331.) Here, the alleged harassers are an unnamed supervising sergeant and a lieutenant who purportedly told plaintiff that they wanted someone younger for the Field Officer Training position. (Compl. ¶ 16.) There are no allegations that George or Bermudez personally committed or aided and abetted any type of harassment recognized under FEHA regulations. (See 2 C.C.R. § 11019(b)(2) [verbal harassment includes “epithets, derogatory comments or slurs on a basis enumerated” under FEHA].) While plaintiff argues that a supervisor can be personally liable for harassment of an employee (Gov. Code § 12940(j)(1)), plaintiff does not refer to any allegations in the Complaint establishing that the individual defendants could be found personally liable for harassment.

Moreover, as discussed below with respect to the defendant City, plaintiff fails to allege sufficiently actionable harassment in any event.

For the foregoing reasons, with respect to defendants Darrell George and Jaime Bermudez, the demurrer to the third cause of action is SUSTAINED.

B. Defendant City

Defendant City demurs to the third cause of action on the following grounds: (1) the alleged harassing conduct was not severe or pervasive and (2) the alleged harassing conduct constitutes a commonly necessary personnel management action that does not constitute harassment.

Conduct must be sufficiently severe or pervasive to alter the conditions of employment in order to constitute actionable harassment. (Lyle v. Warner Bros. Television Prod. (2006) 38 Cal.4th 264, 279.) Further, a “commonly necessary personnel management action” is not generally actionable as harassment. (Reno v. Baird (1998) 18 Cal.4th 640, 646-47, quoting Janken, 46 Cal.App.4th at 63-65 [“job or project assignments” not actionable as harassment].)

Here, plaintiff alleges only that, upon inquiring why his Field Officer Training position would not be extended, the supervising sergeant and lieutenant “told him that they wanted someone younger; that they wanted to train newer people; and that given his age they don't know how much time he has left in the department.” (Compl. ¶ 16.) While it is true that “[a] single incident can be sufficiently severe or pervasive to constitute harassment” (CACI 2524; see also Gov. Code § 12923(b)) and that employment actions can convey a hostile message and serve as evidence of harassment under certain circumstances (Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 709), the alleged failure to extend plaintiff’s Field Office Training position and explanation therefor do not rise to the level of harassment. Plaintiff fails to sufficiently allege conduct that was sufficiently pervasive and severe or a personnel action that evidence harassment (as opposed to a single act of discrimination).

Further, although plaintiff alleges that “[p]laintiff was continuously harassed and subjected to a hostile work environment,” such conclusory allegations are insufficient. (Rodas v. Spiegel (2001) 87 Cal.App.4th 513, 517 [“In determining the merits of a demurrer all material facts pleaded in the complaint and those that arise by reasonable implication, but not conclusions of fact or law, are deemed admitted by the demurring party”].)

The demurrer of defendant City of El Segundo to the third cause of action is OVERRULED.

III. FOURTH CAUSE OF ACTION: HOSTILE WORK ENVIRONMENT

Defendants demur to the fourth cause of action for hostile work environment must be SUSTAINED for the same reasons set forth above respect to the third cause of action.

Moreover, the fourth cause of action is entirely duplicative of the third cause of action for harassment due to age, as “hostile work environment” is a type of harassment. (Miller v. Department of Corrections (2005) 36 Cal.4th 446, 462, fn. 6.) Because a “merely duplicative pleading which adds nothing to the complaint by way of fact or theory” is not sufficient to survive demurrer (Award Metals, Inc. v. Superior Court (1991) 228 Cal.App.3d 1128, 1135), the demurrer to the fourth cause of action is SUSTAINED as to all defendants on this ground as well.