Judge Daniel M. Crowley, Case Number: 22STCV12502, Date: 2023-11-08 Tentative Ruling

Department 71: Attorneys who elect to submit on these published tentative rulings, without making an appearance at the hearing, may so notify the Court by communicating this to the Department's staff via the Department's email: SMCdept71@lacourt.org before the set hearing time. See, e.g., CRC Rule 324(b). All parties are otherwise encouraged to appear by LACourtConnect for all matters.

Defendant County of Los Angeles’ demurrer to Plaintiff Gia Nguyen’s first amended complaint is sustained as to the 1st and 2nd causes of action without leave to amend.

Defendant County of Los Angeles’ motion for sanctions against Plaintiff Gia Nguyen and her counsel of record, Law Offices of Maryann Gallagher, is denied.

Defendant County of Los Angeles (“County”) (“Defendant”) demurs to Plaintiff Gia Nguyen’s (“Nguyen”) (“Plaintiff”) first amended complaint (“FAC”). (Notice of Demurrer, pgs. 2-3; C.C.P. §§430.10(e), 430.30(a), 430.40(a), 430.41; CRC, Rule 3.1320.)

County moves for sanctions against Plaintiff and her counsel of record, Law Offices of Maryann Gallagher, for bad faith tactics in their refusal to dismiss frivolous causes of action from the FAC or respond to County’s inquiries regarding the same. (Notice of Sanctions, pg. 2; C.C.P. §§128.5, 128.7.)

County’s 9/14/23 request for judicial notice as to the first amended complaint in the instant case is denied, as this Court does not need to take judicial notice of filings on the instant docket.

Before filing a demurrer, the moving party must meet and confer in person or by telephone with the party who filed the pleading to attempt to reach an agreement that would resolve the objections to the pleading and obviate the need for filing the demurrer and/or motion to strike. (C.C.P. §430.41, emphasis added.)

County’s counsel declares she made a good faith effort to meet and confer with Plaintiff by sending Plaintiff’s counsel an email on June 23, 2023, explaining to the deficiencies in the FAC. (Decl. of Goldsmith ¶5, Exh. 3.) Defendant’s counsel declares on July 28, 2023, Plaintiff’s counsel asked via email to have a phone conversation to discuss the meet and confer, and parties agreed to stipulate to continue to file County’s responsive pleading. (Decl. of Goldsmith ¶10.) Defendant’s counsel declares she made an attempt to contact Plaintiff’s counsel by phone, but Plaintiff’s counsel was unavailable, and she never received the return phone call she requested from Plaintiff’s counsel via email. (Decl. of Goldsmith ¶10.) Failure to sufficiently meet and confer is not grounds to overrule or sustain a demurrer. (C.C.P. §430.41(a)(4); Dumas v. Los Angeles County Board of Supervisors (2020) 45 Cal.App.5th 348, 355, citing text.) As such, the Court will consider County’s demurrer.

Plaintiff alleges she was a Clinical Laboratory Scientist I in the Microbiology lab for over 31 years. (FAC ¶7.) Plaintiff alleges she performed well in her position. (FAC ¶7.) Plaintiff alleges she received a meets expectations performance evaluation. (FAC ¶7.) Plaintiff alleges she began to have some difficulties in some of the record keeping and had been able to fix the issues before any action was taken. (FAC ¶7.) Plaintiff alleges some of her co-workers were making similar errors but they were not disciplined. (FAC ¶7.) Plaintiff alleges her coworkers were younger than her. (FAC ¶7.) Plaintiff alleges Defendant Leang Tea harassed, discriminated, and bullied her based on her age, race, and gender. (FAC ¶7.)

Plaintiff alleges Defendants introduced some new methods and procedures, but Plaintiff was taken off the bench where she could work on learning the new procedures and denied training. (FAC ¶8.) Plaintiff alleges other less senior, younger employees received training, but Plaintiff was denied the training. (FAC ¶8.)

Plaintiff alleges Plaintiff she worked for Defendants for over 30 years and had experience and knowledge. (FAC ¶9.) Plaintiff alleges she was a valuable employee. (FAC ¶9.) Plaintiff alleges Defendants wanted to replace her because they saw her as older and obsolete. (FAC ¶9.) Plaintiff alleges Defendants did not want to take the time to train her on new procedures like they were training the younger staff, then they would evaluate her on the same standard that they did the employees who had already been trained and learned the new procedures. (FAC ¶9.)

Plaintiff alleges Leang Tea (“Tea”), her supervisor, would call her Mama Jiao, and kept asking her when she was going to retire. (FAC ¶10.) Plaintiff alleges Tea would only hire people who were less than 40 years old. (FAC ¶10.) Plaintiff alleges on her belief that she was one of many employees who were over the age of 40 that Defendants attempted to terminate and replace with younger employees. (FAC ¶10.)

Plaintiff alleges Employer Defendants LAC+USC, County, Los Angeles County University of Southern California Medical Center (collectively, “Employer Defendants”) pressured plaintiff to retire or tried to force her to resign by refusing to provide her the training they were giving to other (younger) employees. (FAC ¶11.) Plaintiff alleges Tea would then assign her tasks that she was not trained for and then write her up if she did not perform them properly even though she had not been shown the procedures he wanted her to follow. (FAC ¶11.)

Plaintiff alleges she complained in January 2019 to the County Equity Investigations Unit/(CEIU) that she felt that she was being discriminated against and disciplined based on her age, her race and her gender. (FAC ¶12.) Plaintiff alleges Defendants and their supervisors, including Tea, then began to highly scrutinize Plaintiff, watching her work, and writing her up for minor infractions. (FAC ¶12.)

Plaintiff alleges on August 14, 2019, Plaintiff filed an equity complaint with the County Equity Investigations Unit alleging she was retaliated for her complaint. (FAC ¶14.) Plaintiff alleges nobody would help her. (FAC ¶14.) Plaintiff alleges that instead, Defendants ratified and condoned the discrimination against her and retaliated against her for complaint of age and gender discrimination by terminating her. (FAC ¶14.)

Plaintiff alleges she was wrongfully terminated on or about April 20, 2020, in retaliation for her complaints and in wrongful termination of the public policy set forth in FEHA as set forth above. (FAC ¶15.) Plaintiff alleges she exhausted her administrative remedies prior to filing this lawsuit. (FAC ¶17.)

On April 13, 2022, Plaintiff filed her initial complaint against Employer Defendants. On May 30, 2023, Plaintiff filed the operative FAC against Employer Defendants alleging two causes of action: (1) violation of Labor Code §1102.5; and (2) wrongful termination in violation of public policy.

County filed the instant demurrer on September 14, 2023. Plaintiff filed her opposition on October 26, 2023. County filed its reply on November 1, 2023.

County demurs on the basis that Plaintiff’s causes of action are not viable against it because (1) Plaintiff failed to present a Government Claim Act claim, which is a judicial prerequisite to filing a lawsuit against a public entity (Gov. Code §§945.4, 946.6), and (2) the County cannot be liable in Tort for a Wrongful Termination cause of action (Gov. Code §§815(a), 815.6. (Demurrer, pg. 1; Notice of Demurrer, pg. 2; C.C.P. §430.10(e).)

“[A] demurrer tests the legal sufficiency of the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.) 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. (See Donabedian v. Mercury Insurance Co. (2004) 116 Cal.App.4th 968, 994 [in ruling on a demurrer, a court may not consider declarations, matters not subject to judicial notice, or documents not accepted for the truth of their contents].) For purposes of ruling on a demurrer, all facts pleaded in a complaint are assumed to be true, but the reviewing court does not assume the truth of conclusions of law. (Aubry v. Tri-City Hospital District (1992) 2 Cal.4th 962, 967.)

The Government Claims Act (“GCA”) (Gov. Code §810 et seq.) governs actions against public entities and public employees. The timeliness of such actions is governed by the specific statute of limitations set forth in the Government Code, not the statute of limitations applicable to private defendants. (County of Los Angeles v. Superior Court (2005) 127 Cal.App.4th 1263, 1267-1268, citing Moore v. Twomey (2004) 120 Cal.App.4th 910, 913-914; Martell v. Antelope Valley Hospital Medical Center (1998) 67 Cal.App.4th 978, 981.)

Under the GCA, no person may sue a public entity or public employee for “money or damages” unless a timely written claim has been presented to and denied by the public entity. (Gov. Code §945.4; see Shirk v. Vista Unified School District (2007) 42 Cal.4th 201, 208.) If a complaint does not allege facts showing that a claim was timely made, or that compliance with the claims statutes is excused, it is subject to demurrer. (Shirk, 42 Cal.4th at pg. 209; J.M. v. Huntington Beach Union High School District (2017) 2 Cal.5th 648, 652.) Moreover, under California’s claim presentation statutes, failure to timely present a claim for money or damages to a public entity bars a plaintiff from filing a lawsuit against that entity. (City of Pasadena v. Superior Court (2017) 12 Cal.App.5th 1340, 1340.) “The purpose of the claims statutes is not to prevent surprise, but to provide the public entity sufficient information to enable it to adequately investigate claims and to settle them, if appropriate, without the expense of litigation.” (City of Stockton v. Superior Court (2007) 42 Cal.4th 730, 731.)

To file a Labor Code §1102.5 claim against a government entity, the Plaintiff must file a GCA claim within six (6) months of the adverse employment action. (Gov. Code §911.2.) If untimely, Plaintiff could have attempted to present a “late claim” to the public entity by submitting an application for leave to present a late claim. However, a late claim must be submitted within one (1) year of the accrual of the cause of action. (Gov. Code §911.4.)

Government Code §946.6(c) provides that the court will grant relief only if it finds that (1) the application to the public entity for leave to file a late claim was made within a reasonable time not to exceed one year after accrual of the claim as specified in §911.4(b); (2) was denied or deemed denied by the public agency pursuant to §911.6; and (3) one or more of the following is applicable: (a) the failure to timely present the claim was through mistake, inadvertence, surprise, or excusable neglect, unless the public entity establishes that it would be prejudiced in the defense of the claim if the court relieves the petitioner from the requirements of §945.4; (b) the person who sustained the alleged injury, damage or loss was a minor during all of the time specified in §911.2 for the presentation of the claim; (c) the person who sustained the alleged injury, damage or loss was physically or mentally incapacitated during all of the time specified in §911.2 for the presentation of the claim and by reason of that disability failed to present a claim during that time; or (d) the person who sustained the alleged injury, damage or loss died before the expiration of the time specified in §911.2 for the presentation of the claim. (Gov. Code §946.6(c).)

Plaintiff fails to allege she timely presented a GCA claim to County and concedes in her opposition that County’s demurrer to the two causes of action is well taken. (Opposition, pg. 1 at ¶1.) Plaintiff alleges her adverse employment action was on April 20, 2020. (FAC ¶15.). Therefore, Plaintiff had until October 20, 2020, to present a claim, and had until April 20, 2021, to request the filing of a late claim. (Gov. Code §§911.2, 911.4.) Although Plaintiff claims to have exhausted administrative remedies, she has not plead that she presented a GCA claim, which is not an administrative remedy, but a filing with the governmental entity. Since Plaintiff failed to file a GCA claim and cannot do so now, this demurrer must be sustained.

Plaintiff requests leave to amend the complaint to correct the mistake and to file a second amended complaint alleging age discrimination and gender discrimination on the basis the causes of action were in the initial complaint and were inadvertently removed by mistake. Plaintiff contends Defendants would not be prejudiced because they had a year to conduct discovery on these claims and they are not new. (Opposition, pg. 3 at ¶11.) However, it does not appear that leave to amend the allegedly inadvertently omitted causes of action would cure necessary deficiencies, as the proposed Second Amended Complaint (proposed “SAC”) attached to Plaintiff’s counsel’s declaration fails to allege that Plaintiff timely submitted a Department of Fair Employment and Housing (“DFEH”) Charge of Discrimination. (See Decl. of Gallagher ¶¶1, 16, Exh. 2.)

Accordingly, County’s demurrer to Plaintiff’s 1st cause of action is sustained without leave to amend.

The GCA immunizes public entities such as the County from tort liability in all cases except those where liability is explicitly created by a particular statute. (Gov. Code §815(a); Hoff v. Vacaville Unified School District (1998) 19 Cal.4th 925, 932 [“in California, ‘all government tort liability must be based on statute’”]; Doe v. Los Angeles County Department of Children & Family Services (2019) 37 Cal.App.5th 675, 682-683.) A general tort statute is insufficient by itself to serve as a basis for direct public liability. (Eastburn v. Regional Fire Protection Authority (2003) 31 Cal.4th 1175, 1183 [direct liability to a public entity could not be imposed based on general duty of ordinary care embodied in Civil Code § 1714].)

Public employees cannot sue their public employers for wrongful termination in violation of public policy. (See Miklosy v. Regents of University of California (2008) 44 Cal.4th 876, 899; McAllister v. Los Angeles Unified School District (2013) 216 Cal.App.4th 1198, 1219; Gov. Code §815(a).) Wrongful Termination in Violation of Public Policy, even when the action cites statutory causes of action for potential violations of the “policy,” is barred against a public entity as a matter of law.

The Government Claims Act . . . establishes the limits of common law liability for public entities, stating: “Except as otherwise provided by statute: (a) a public entity is not liable for an injury whether such injury arises out of an act or omission of the public entity or a public employee or any other person.” The Legislative Committee Comment to section 815 states: “This section abolishes all common law or judicially declared forms of liability for public entities, except for such liability as may be required the state or federal constitution.”

(Miklosy, 44 Cal.4th at pg. 899.) The Miklosy Court held that public entities may only be liable where a statute expressly gives rise to such liability, and common law claims not derived from statute are legally impermissible.

In McAllister, the Court of Appeal, citing Miklosy, held that the claims at issue in both those cases, for wrongful discharge in violation of public policy, were common law claims, and thus barred under Government Code §815 and Miklosy for lack of statutory authority. (McAllister, 216 Cal.App.4th at pg. 1219 [holding “the alleged torts are barred under Government Code section 815 and Miklosy.”].)

As such there is no statutory basis to allege common law tort-based claims like wrongful termination in violation of public policy against the County.

Accordingly, County’s demurrer to Plaintiff’s 2nd cause of action is sustained without leave to amend.

County’s demurrer to Plaintiff’s FAC is sustained without leave to amend as to the 1st and 2nd causes of action.

County filed the instant motion on October 16, 2023. Plaintiff filed her opposition on October 26, 2023. County filed its reply on November 1, 2023.

Pursuant to C.C.P. §128.5(a), “[a] trial court may order a party, the party’s attorney, or both to pay the reasonable expenses, including attorney’s fees, incurred by another party as a result of bad faith actions or tactics that are frivolous.” (C.C.P. §128.5(a).) “Actions or tactics” specifically include the making or opposing of motions, or other responsive pleadings such as demurrers. (C.C.P. §128.5(b)(l).) “Frivolous” means, in pertinent part, “totally and completely without merit.” (C.C.P. §128.5(b)(2).)

By filing a pleading, motion, or similar paper in court, an attorney makes an implied “certification” that the filing has legal and factual merit. (C.C.P. §128.7(b).) The purpose of §128.7 is “to check abuses in the filing of pleadings, petitions, written notices of motions or similar papers.” (Musaelian v. Adams (2009) 45 Cal.4th 512, 514.) C.C.P. §128.7 requires that a pleading filed with the Court, among other things:

(1) It is not being presented primarily for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.

(2) The claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law.

(3) The allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.

(4) The denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief.

If, after notice and a reasonable opportunity to respond, the court determines that a pleading fails to meet the conditions set forth under §128.7, it may impose an appropriate monetary and non-monetary sanction on the attorney or party responsible for the violation. (C.C.P. §128.7(c); see also Bucur v. Ahmad (2016) 244 Cal.App.4th 175, 189-190 [“Under section 128.7, a court may impose sanctions if it concludes a pleading was filed for an improper purpose or was indisputably without merit, either legally or factually.”].) “If warranted,” the court may award the prevailing party its reasonable expenses and attorney fees “incurred in presenting or opposing the motion.” (C.C.P. §128.7(c)(1).)

Whether a party or attorney violated C.C.P. §128.7 is measured objectively. (Bockrath v. Aldrich Chemical Co. (1999) 21 Cal.4th 71, 82 [“We measure the truth-finding inquiry’s reasonableness under an objective standard, and apply this standard both to attorneys and to their clients.”]; Optimal Markets, Inc. v. Salant (2013) 221 Cal.App.4th 912, 921 [“A trial court is to apply an objective standard in making its inquiry concerning the attorney’s or party’s allegedly sanctionable behavior in connection with a motion for sanctions brought under section 128.7.”].) “A claim is objectively unreasonable if ‘any reasonable attorney would agree that [it] is totally and completely without merit.’” (Peake v. Underwood (2014) 227 Cal.App.4th 428, 440, quoting In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650.)

Courts also may sanction counsel for presenting a motion “primarily for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.” (C.C.P. §128.7(b)(1). However, where a motion is not legally or factually frivolous, courts are reluctant to find that it was presented for an improper purpose unless the motion “is filed in the context of a persistent pattern of clearly abusive litigation activity.” (Aetna Life Insurance Co. v. Alla Medical Services, Inc. (9th Cir. 1988) 855 F.2d 1470, 1476 [interpreting Fed. R. Civ. Proc. 11); see also Ponce v. Wells Fargo Bank (2018) 21 Cal.App.5th 253, 264-265 [“[W]e have held that the [improper purpose and frivolous filings] clauses are not totally independent.”].)

The evidentiary burden to escape sanctions under §128.7 is “light.” Counsel only need to have “made a reasonable inquiry into the facts and entertained a good faith belief in the merits of the claim” and “need not amass even enough evidence to create a triable issue of fact” as in summary judgment proceedings or show counsel could overcome a demurrer. (Kumar v. Ramsey (2021) 71 Cal.App.5th 1110, 1126.)

While the Court is sympathetic to County’s frustration in its attempts to meet and confer with Plaintiff’s counsel regarding the demurrer to the FAC, Plaintiff’s counsel has demonstrated mistake and inadvertence in filing the instant FAC, which does not support a finding of improper purpose or frivolousness. (See Decl. of Gallagher ¶¶1-4, 12, 13, 17.) While Plaintiff’s counsel has used her oppositions to the instant motion and the demurrer to improperly seek leave to amend defective pleadings, the Court is not inclined to impose sanctions at this juncture.

Hon. Daniel M. Crowley

Judge of the Superior Court