Judge Daniel M. Crowley, Case Number: 22STCV25650, Date: 2023-05-25 Tentative Ruling

Defendant City of Los Angeles’ demurrer to the first amended complaint of Plaintiff James Sharlein is overruled as to the 1st, 2nd 3rd and 4th causes of action.

Defendant’s motion to strike is granted in part and denied in part, as specified below.

Defendant City of Los Angeles (“City”) (“Defendant”) demurs to the 1st (retaliation in violation of the FEHA), 2nd (retaliation in violation of Labor Code §1102.5), 3rd (failure to prevent discrimination, harassment, and retaliation in violation of the FEHA), and 4th (violation of the Firefighter Bill of Rights under Gov. Code §3250, et seq.) causes of action in the first amended complaint (“FAC”) of Plaintiff James Sharlein (“Plaintiff”). (Notice of Motion Demurrer, pg. 2; C.C.P. §430.10.) Defendant also moves to strike portions of the FAC as not drawn or filed in conformity with Government Code §12965(b). (Notice of Motion MTS, pg. 2.)

Plaintiff filed his initial complaint against Defendant on August 9, 2022. Plaintiff filed his operative FAC on November 22, 2022. Defendant filed the instant demurrer and accompanying motion to strike on January 27, 2023. Plaintiff filed his opposition on May 12, 2023. As of the date of this hearing Defendant has not filed a reply.

Plaintiff alleges he is a Caucasian male firefighter employed by Defendant. (FAC ¶¶1, 12.) Plaintiff alleges in or around June 2018 he filed a governmental claim with Defendant reporting and notifying Defendant of the misconduct of Defendant and its agents and/or employees including violations of Government Code §3250, et seq., Labor Code §1102.5, et seq., and other state and federal constitutional provisions, statutes, rules, and regulations, the protected activities by plaintiff and protected status of plaintiff, and adverse employment actions that had been perpetrated against him by Defendant and its agents and/or employees. (FAC ¶13.) Plaintiff alleges in or around December 2018 he filed a complaint with the Department of Fair Employment and Housing (“DFEH”) reporting and notifying Defendant of Defendant’s misconduct. (FAC ¶13.) Plaintiff alleges he filed a complaint in or around December 2018 in LASC Case No. 18STCV08528. (FAC ¶13.) Plaintiff alleges in or around May 2019 he filed an amended/supplemental governmental claim reporting Defendant’s misconduct. (FAC ¶13.) Plaintiff alleges in or around March 2022 Plaintiff filed an additional complaint with DFEH reporting further misconduct by Defendant. (FAC ¶13.) Plaintiff alleges in or around April 2022 he filed an amended/supplemental governmental claim against Defendant reporting further misconduct. (FAC ¶13.)

Plaintiff alleges from on or around December 2017 to present and continuing Plaintiff engaged in the protected activities of reporting and opposing conduct by other agents and/or employees of Defendant including LAFD firefighter Ta’Ana Mitchell (“Mitchell”) and others that Plaintiff reasonably believed was and is in violation of FEHA, Government Code §3250 et seq., Labor Code §1102.5 et seq., and other state and federal constitutional provisions, statutes, rules, and regulations. (FAC ¶15.) Plaintiff alleges Defendant has continued to harass, discriminate, and/or retaliate against Plaintiff including by repeatedly failing and refusing to follow its own practices, policies, and procedures, and the law, including failing and refusing to comply with Government Code §§3250 and 12940, et seq., Labor Code §1102.5 et seq., and other state and federal constitutional provisions, statutes, rules, and regulations, and instead repeatedly violated those and other laws. (FAC ¶16.)

Plaintiff alleges Defendant has engaged in the following actions and course or pattern of conduct that, taken as a whole, materially and adversely affected the terms, conditions, or privileges of Plaintiff’s employment, including conduct that was and is reasonably likely to impair plaintiff’s job performance or prospects for advancement or promotion, including:

(B) repeatedly denying plaintiff being transferred back to Fire Station 50 where he could avail himself promotional opportunities, as well as preventing and/or delaying Plaintiff from applying for and/or denying other additional coveted and/or favorable job positions and assignments, including assignment as an LAFD helicopter Air Rescue paramedic, and promotion to the rank of Captain I and thereafter to higher ranks in the LAFD;

(C) impairing and delaying the opportunity and ability for Plaintiff to promote to the rank of Captain I and thereafter to higher ranks in the LAFD;

(D) moving Plaintiff’s work locations to multiple less desirable work locations which has impeded and is anticipated to further impede Plaintiff’s ability to advance in Plaintiff’s career;

(E) repeatedly removing from and/or denying Plaintiff additional job responsibilities which would further Plaintiff’s career;

(G) repeatedly making knowingly additional false, misleading, and/or malicious statements regarding Plaintiff which were and are reasonably calculated to harm or destroy the reputation, authority, and/or official standing of Plaintiff, including supervisory personnel and other personnel of Defendant stating that Plaintiff is a “racist” and “sexist”;

(H) despite Plaintiff properly and timely completing his EMS Update 2018 and Defendant being properly notified plaintiff had completed that update, Plaintiff received a letter from the Los Angeles County Emergency Medical Services Agency in which Plaintiff was advised that plaintiff's paramedic accreditation had been suspended due to the failure of Defendant to properly notify that agency that Plaintiff had completed the EMS Update 2018. The failure of defendant City to properly notify the Los Angeles County Emergency Medical Services Agency that Plaintiff had completed the EMS Update 2018 caused Plaintiff to have worked as a paramedic without accreditation, thereby exposing Plaintiff to the administrative penalty of having Plaintiff’s paramedic accreditation suspended, as well as criminal and civil liability for practicing as a paramedic without a license. It was and is the responsibility of the LAFD and Defendant to have properly notified the Los Angeles County Emergency Medical Services Agency that Plaintiff had completed the EMS Update 2018 so as to prevent Plaintiff’s paramedic accreditation from being suspended;

(I) repeatedly subjected Plaintiff to additional illegal, improper, and/or retaliatory charges, including LAFD PSD CTS No. 2020000386;

(J) sending a letter to the Los Angeles County Emergency Medical Authority detailing false claims by Defendant that Plaintiff had engaged in misconduct regarding the incident that was the subject of LAFD CTS Case No. 2020000386 and further falsely claiming that plaintiff’s conduct was in violation of Health & Safety Code §1798.200. This letter was sent by Defendant before Plaintiff had even been interrogated by Defendant in regard to the incident that was the subject of matter of this letter, and before Defendant had completed its investigation regarding the incident. Plaintiff is formally contesting the discipline recommended by Defendant regarding this incident, and therefore no final or binding findings have been made in regard to the conduct of Plaintiff, including any findings that Plaintiff did anything improper in regard to this incident. Further, there is not and has never been any facts or evidence to support that Plaintiff ever engaged in any actions in regard to this incident or any other matter that constituted a “threat to the public health and safety” as defined by Health & Safety Code §1798.200(c). There was not and is no legitimate reasons for Defendant to have sent this letter to the Los Angeles County Emergency Medical Authority, and Defendant has failed and continues to fail to date to withdrawn this letter;

(K) in connection with LAFD PSD CTS No. 2020000386, Plaintiff was interrogated by Defendant, and prior to that interrogation Plaintiff, through both Plaintiff’s union representative and Plaintiff’s attorney, repeatedly objected to Captain I Jennifer Wilcox (“Wilcox”) serving as Defendant a LAFD investigator in regard to this investigation since Wilcox had been one of Mitchell’s “peer groupers” at the LAFD Drill Tower, had been the Captain of FS 68, the fire station where Mitchell had requested to be and upon information and belief was transferred after being assigned to FS 50, as well as upon information and belief being a social friend and confidant of Mitchell. Despite the repeated objections Defendant refused to recuse Wilcox from being the lead investigator for the investigation, and Wilcox refused to recuse herself from the investigation. During the interrogation regarding this investigation Wilcox repeatedly directed offensive language toward Plaintiff, Plaintiff’s union representative, and plaintiff’s attorney, in violation of Government Code §3253(e)(1);

(L) during the interrogation in regard to PSD CTS No. 2020000386, plaintiff, through both Plaintiff’s union representative and Plaintiff’s attorney, repeatedly requested to be advised by Defendant as to the identity of the complainant regarding this investigation. After repeated requests Defendant finally disclosed that the complainant was not the patient or anyone acting on the patient’s behalf, but was instead Battalion Chief Anthony Hardaway, who previously denied without cause sponsorship of Plaintiff’s paramedic re-accreditation in 2018;

(M) despite the fact that Plaintiff did nothing wrong in regard to this incident that is the subject of PSD CTS No. 2020000386, Defendant, through its Fire Chief Kristin Crowley, recommended a ten (10) day suspension for Plaintiff. Plaintiff has been forced to request a Board of Rights from Defendant to contest that recommended discipline, and is currently awaiting the scheduling of that Board of Rights, and has and will sustain additional damages in regard to this retaliatory disciplinary recommendation and Board of Rights arising therefrom, including, inter alia, loss of income, attorneys fees, and costs;

(N) the ten-day suspension defendant City seeks to impose upon plaintiff in connection with LAFD PSD CTS Case No. 2020000386, even if the alleged conduct occurred exactly as defendant City claimed it did, which it did not, was and is excessive for such alleged conduct, which at most would normally be the subject of simple additional remedial training for the involved paramedics and other personnel, and which would not merit any formal discipline whatsoever. Plaintiff has already participated in and completed the remedial training by the LAFD allegedly arising from this incident;

(O) Defendant has never conducted any investigation of Mitchell and/or taken any other proper remedial actions which properly addressed the threats and other statements made to and/or regarding plaintiff which Mitchell admitted making at LAFD Fire Station 50, has never conducted a proper workplace violence assessment or any other proper investigation regarding those threats, and has never taken all reasonable steps to prevent such harassment, discrimination, and retaliation of plaintiff. Instead, the LAFD. PSD brought a retaliatory PSD investigation against the Firefighter III/Los Angeles Police Department Reserve Officer Tsarofski who recorded the threats and other statements in what was and is an attempt to chill that firefighter and other LAFD employees from testifying in the pending civil action of plaintiff referenced above;

(P) Defendant’s Jenny Park, who describes herself as a civilian Deputy Chief of the LAFD Risk Management Section, provided file materials from Defendant’s files regarding the investigation of Plaintiff’s complaints against Mitchell to Mitchell’s attorneys prior to the hearing of Plaintiff’s request for a restraining order against Mitchell. Defendant claims that such file materials are confidential, and through its policies, procedures, protocols, rules, and/or regulations prohibits such file materials pertaining to the investigation of a LAFD member from being provided to that member until after a formal recommendation for discipline has been made by the LAFD against the member following the conclusion of the investigation. For Ms. Park and Defendant to provide these file materials regarding Plaintiff’s complaints against Mitchell to Mitchell’s attorneys prior to the conclusion of that investigation and the recommendation of discipline against Mitchell was and is a violation of the confidentiality of that investigation, and the Defendant’s policies, procedures, protocols, rules, and/or regulations regarding the disclosure of such files and the information and documents contained therein. Upon information and belief, Ms. Park provided the file materials to Mitchell’s attorneys on or prior to July 19, 2018, and Mitchell was not interrogated by Defendant in regard to the investigation of the charges of misconduct against her until in or around November of 2018. Providing Mitchell with file materials from the investigation before she was interviewed in connection with the investigation irrevocably tainted her interrogation and the results of that investigation, as well as violating the obligations of Defendant to take all reasonable and appropriate steps to prevent Plaintiff from being subjected to harassment, discrimination, and retaliation;

(Q) Defendant’s supervisor LAFD Captain II Martin Mullen (“Mullen”) created and maintained secret personnel records regarding Plaintiff containing written adverse comments regarding Plaintiff that were kept in the bedroom of the house of Mullen and not disclosed to Plaintiff until in or around January 2022;

(R) Defendant’s LAFD EEO Coordinator Maria Aslan made written adverse comments regarding plaintiff that were never provided to Plaintiff, and which are contained in personnel files to which Plaintiff was not provided access, and the facts surrounding the maintenance of such comments not disclosed to Plaintiff until in or around November 2021;

(S) repeatedly failing and refusing to comply with Government Code §§3250 and 12940, et seq., and instead repeatedly violated the law by contriving, instigating and/or ratifying meritless complaints against Plaintiff;

(T) repeatedly subjecting plaintiff to offensive language and/or threatening Plaintiff with punitive action during compelled interrogations that could lead to punitive action in violation of Government Code §3253(e);

(U) repeatedly loaning or temporarily reassigning Plaintiff to location(s) or duty assignment(s) that a firefighter in the LAFD would not normally be sent or would not normally be given under similar circumstances, in violation of Government Code §32530);

(V) repeatedly subjecting Plaintiff to punitive action, denying Plaintiff coveted positions and/or promotions, and/or threatening Plaintiff with such treatment, because of the lawful exercise of Plaintiff’s rights under Government Code §§3250, et seq. and 12940, et seq., in violation of Government Code §3254(a);

(W) repeatedly entering comments adverse to Plaintiff’s interest into Plaintiff’s personnel file and/or other files used for personnel purposes, without Plaintiff having first read and signed the instruments containing the adverse comments indicating Plaintiff is aware of such comments, in violation of Government Code §3255;

(X) repeatedly failing to permit Plaintiff to inspect personnel files that are used and/or have been used to determine Plaintiff’s qualifications for employment, promotion, additional compensation, termination, and/or other disciplinary action, in violation of Government Code §§3255, 3256, and 3256.5;

(Y) repeatedly failing to timely make a copy of and/or keep available for inspection Plaintiff’s personnel file and/or other files used for personnel purposes, and failing to timely make a copy of and/or keep available for inspection Plaintiff’s personnel file and/or other files used for personnel purposes so that Plaintiff could examine same, determine the portions thereof that plaintiff believes are mistakenly or unlawfully placed in the file so as to allow Plaintiff to request, in writing, that any mistaken or unlawful portions be corrected or deleted, in violation of Government Code §§3255, 3256, and 3256.5;

(Z) repeatedly attempted to ban Plaintiff’s union representative of Plaintiff’s choice from compelled meetings and interrogations, and falsely claiming that Plaintiff was not entitled to the representative of Plaintiff’s own choice at such compelled meetings and interrogations in violation of Government Code §§3253(i);

(AA) repeatedly attempting to deny plaintiff the representative of Plaintiff’s choice to be present at all times during interrogations focusing on matters that may result in punitive action against Plaintiff, in violation of Government Code §§3253(i);

(BB) releasing without Plaintiff’s knowledge and consent confidential file materials and/or other personnel records regarding Plaintiff to representatives of Mitchell and others;

(CC) repeatedly committing other violations of state, federal statutes, and local statutes, rules, and regulations, and the United States and California Constitutions;

(DD) on or about October 19, 2022, while Plaintiff was required to be personally present at the jury trial then being conducted in Department 71 of the Los Angeles County Superior Court in connection with the action entitled Sharlein v. City of Los Angeles, et al., LASC Case No. 18STCV08528 (“Sharlein I”). While plaintiff was en route to the courthouse he observed an incident occurring in or around Union Station in Los Angeles, California in which an individual was battering another individual with a metal pipe. Upon observing this incident Plaintiff intervened to attempt to prevent further injuries to the individual being battered and to de-escalate the incident. As a result, Plaintiff was exposed to and splattered with blood both on his body and his clothing from the involved individuals. The individual who was battering the other individual subsequently advised the responding law enforcement officers and upon information and belief the responding LAFD personnel that he was infected with HIV. Upon arriving at the court room, Plaintiff and his counsel both advised representatives of Defendant, including representatives of the Los Angeles City Attorney’s Offices and the LAFD, regarding the facts and circumstances surrounding this incident. Both Plaintiff and his counsel requested that Plaintiff be allowed to travel to his assigned fire station and change out of his blood splattered clothing and into his LAFD work uniform. Defendant and its representatives refused to allow Plaintiff to do so. Thereafter, despite the fact that under Defendant’s rules, regulations, policies, or procedures Plaintiff had been subjected to an at least Level 2 bloodborne pathogen exposure, defendant failed and refused to comply with Defendant’s policies and procedures, including, inter alia, by failing to document the exposure in the Station Journal, in Plaintiff’s personal record book, and in an F-225 letterhead with members names and all details of exposure forwarded to the Medical Liaison Unit, as well as failing to perform all appropriate follow up procedures required regarding a bloodborne pathogen exposure;

(EE) defendant repeatedly concealing, altering, or creating documentation, including false documentation, regarding Plaintiff in retaliation for the protected activities of Plaintiff; and

(FF) engaging in a pattern of retaliatory conduct which has substantially and materially adversely affected the terms and conditions of Plaintiff’s employment with Defendant. (FAC ¶16.)

Plaintiff alleges to date Defendant has never taken steps to properly protect Plaintiff from the threats, false complaints, and other misconduct of Mitchell, and to mitigate the damages caused to Plaintiff by the misconduct of Defendant and its agents and/or employees, including Mitchell and others. (FAC ¶17.) Plaintiff alleges despite the fact that Mitchell was untruthful in her statements to Defendant, was untruthful in her complaint to the Equal Employment Opportunity Commission, and untruthful in her deposition taken in Plaintiff’s initial LASC action, Defendant has failed to take appropriate action. (FAC ¶17.) Plaintiff alleges despite the fact that Mitchell and other agents and/or employees of Defendant have repeatedly falsely accused Plaintiff of being a racist and a sexist, the LAFD has never charged Mitchell or any of the other agents and/or employees of Defendant with spreading malicious gossip or making untruthful statements during formal investigations by Defendant. (FAC ¶17.) Plaintiff alleges while Defendant has recommended suspending Plaintiff for ten (10) days despite the fact he did nothing wrong, Defendant never imposed appropriate discipline upon Mitchell or the other agents and/or employees of Defendant who have engaged in misconduct against Plaintiff or taken all other reasonable steps to prevent Plaintiff from being subjected to further harassment, discrimination, and retaliation. (FAC ¶17.)

Plaintiff alleges the severe, pervasive, persistent, and continuing pattern of retaliatory conduct of Defendant has created and continues to create an objectively and subjectively hostile, discriminatory, and/or retaliatory workplace for Plaintiff. (FAC ¶18.) Plaintiff alleges despite the fact that the Defendant have repeatedly been notified that there was and continues to be a pattern of harassment, discrimination, and/or retaliation against Plaintiff based on Plaintiff’s protected status and activities as set forth above, Defendant has failed and refused to take all reasonable steps necessary to address such misconduct and to assure a safe and productive workplace environment free of harassment, discrimination, and retaliation. (FAC ¶19.) Plaintiff alleges a substantial motivating reason for Defendant engaging in the foregoing adverse employment actions against plaintiff was to retaliate against plaintiff based on Plaintiff engaging in activities protected by Government Code §§3250, et seq. and 12940, et seq., and whistle blowing activities protected by Labor Code §1102.5, et seq., including Plaintiff engaging in the protected activities of reporting, complaining about, and opposing the threats, harassment, discrimination, and retaliation perpetrated against Plaintiff. (FAC ¶20.)

plaintiff must show (1) he or she engaged in a ‘protected activity,’ (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer’s action. [Citations.]” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.) “Protected activity” under FEHA consists of opposing acts unlawful under FEHA, for example, harassment, discrimination, or retaliation based on race or disability, or testifying or assisting in any proceeding alleging such a violation of FEHA. (See Gov. Code §§12940(a)-(h).)

“An adverse employment action, which is a critical component of a retaliation claim, requires a substantial adverse change in the terms and conditions of the plaintiff’s employment.” (Holmes v. Petrovich Development Co., LLC (2011) 191 Cal.App.4th 1047, 1063, quotation marks omitted.) An “adverse employment action” is to be interpreted broadly, to cover the “entire spectrum of employment actions that are reasonably likely to adversely and materially affect an employee’s job performance or opportunity for advancement in his or her career.” (Yanowitz, 36 Cal.4th at pg. 1054.)

Plaintiff alleged sufficient facts to constitute a cause of action for retaliation in violation of FEHA and such facts have not already been litigated in Sharlein I. Plaintiff alleges he engaged in protected activity. (FAC ¶¶13-15.) Plaintiff alleges he was subject to adverse employment actions. (FAC ¶16.) Plaintiff alleges a causal link existed between the protected activity and Defendant’s actions. (FAC ¶16.)

Based on the foregoing, Defendant’s demurrer to the 1st cause of action is overruled.

A cause of action for retaliation under Labor Code §1102.5 requires the following elements: (1) defendant was plaintiff’s employer; (2) plaintiff disclosed or defendant believed that plaintiff had disclosed to a person with authority over plaintiff, or an employee with authority to investigate, discover, or correct legal violations or noncompliance; (3) plaintiff had reasonable cause to believe that the information disclosed a violation or noncompliance with a state/federal statute or a violation of/noncompliance with a local/state/federal rule or regulation; (4) defendant subjected plaintiff to an adverse employment action; (5) plaintiff’s disclosure of information was a contributing factor in defendant’s decision to subject plaintiff to the adverse employment action; (6) plaintiff was harmed; and (7) defendant’s conduct was a substantial factor in causing plaintiff’s harm. (CACI 4603; see Lab. Code §1102.5.)

Plaintiff alleged sufficient facts to constitute a cause of action for whistleblower retaliation in violation of the Labor Code and such facts have not already been litigated in Sharlein I. Plaintiff alleges facts that he disclosed to a person with authority over him or an employee with authority to investigate, discover, or correct legal violations or noncompliance and Plaintiff had reasonable cause to believe that the information disclosed a violation or noncompliance with a state/federal statute or a violation of/noncompliance with a local/state/federal rule or regulation. (FAC ¶¶16(K)-(N), 35.)

Based on the foregoing, Defendant’s demurrer to the 2nd cause of action is overruled.

A cause of action for failure to take all reasonable steps to prevent harassment, discrimination, and retaliation requires the following elements: (1) plaintiff was an employee of defendant; (2) plaintiff was subjected to discrimination/retaliation in the course of employment; (3) defendant failed to take all reasonable steps to prevent the harassment/discrimination/retaliation; (4) plaintiff was harmed; and (5) defendant’s failure to take all reasonable steps to prevent discrimination and retaliation was a substantial factor in causing plaintiff’s harm. (CACI 2527.)

Defendant argues Plaintiff fails to allege underlying causes of action for harassment and discrimination, despite the body of the FAC being replete with such allegations. (Demurrer, pg. 5.) Plaintiff alleged sufficient facts to constitute a cause of action for retaliation in violation of the FEHA. Plaintiff alleged he engaged in protected activities by opposing practices forbidden by FEHA and filing and/or making complaint(s), testifying in, and/or assisting in proceedings under FEHA were and are a substantial motivating reason for Defendant retaliating against Plaintiff and the adverse employment actions. (FAC ¶¶13-17, 25.) Plaintiff alleged defendant’s failure to take all reasonable steps to prevent discrimination and retaliation was a substantial factor in causing plaintiff’s harm. (FAC ¶¶18-21.)

Based on the foregoing, Defendant’s demurrer to the 3rd cause of action is overruled.

Violation of the Firefighters Procedural Bill of Rights (Gov. Code §3250 et seq.) (4th COA)

The Firefighters Procedural Bill of Rights (“FFBOR”) became effective on January 1, 2008. (Stats. 2007, ch. 591, §2.) The Legislative Counsel’s Digest described the legislation as follows: “‘This bill would enact the [FFBOR] to prescribe various rights of firefighters, defined as any firefighter employed by a public agency, including a firefighter who is a paramedic or emergency medical technician, with specified exceptions. The bill would prescribe rights related to, among others, political activity, interrogation, punitive action, and administrative appeals, with specified requirements imposed upon the employing agency and the imposition of a civil penalty for a violation thereof.’” (International Association of Firefighters Local Union 230 v. City of San Jose (2011) 195 Cal.App.4th 1179, 1187-1188.)

The FFBOR gives aggrieved firefighters a private right of action in superior court. (Gov. Code §3260(b).) The court may render injunctive relief to remedy a FFBOR violation. (Gov. Code §3260(c).) “In addition . . . upon a finding by a superior court that a fire department, its employees, agents, or assigns, with respect to acts taken within the scope of employment, maliciously violated any provision of this chapter with the intent to injure the firefighter, the fire department shall, for each and every violation, be liable for a civil penalty not to exceed twenty–five thousand dollars ($25,000) to be awarded to the firefighter whose right or protection was denied and for reasonable attorney’s fees as may be determined by the court.” (Gov. Code §3260(d).)

Plaintiff alleges the City violated the FFBOR by improperly subjecting Plaintiff to investigations and offensive language, failing to provide Plaintiff with certain rights afforded under the FFBOR, and otherwise engaging in conduct prohibited by the FFBOR. (See FAC ¶¶60(a)-(k); Gov. Code §§3253(c), (e), (g), (h), (i), (j), (a), 3254(d), 3255, 3256, 3256.5.) Plaintiff sufficiently alleges facts supporting Defendant’s alleged violations of the FFBOR. (FAC ¶¶60(a)-(k).)

Based on the foregoing, Defendant’s demurrer to the 4th cause of action is overruled.

Defendant moves to strike the following portions of Plaintiff’s FAC: (1) ¶16, only as to references of harassment and discrimination; (2) ¶¶16(B), (G), (H), (P), (O); (3) ¶17 as to references to Mitchell, harassment, and discrimination; (4) ¶¶18-20 as to references of hostile and discriminatory workplace; (5) ¶35; (6) ¶¶45-57; (6) ¶¶58-69; and (7) Prayer ¶8.[1]

A motion to strike lies either to strike any “irrelevant, false or improper matter inserted in any pleading”; or to strike any pleading or part thereof “not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” (C.C.P. §436.)

Defendant moves to strike FAC ¶¶45-57, Plaintiff’s 3rd cause of action, on the basis that there is no underlying cause of action alleged for harassment and discrimination. As stated in the Court’s ruling on the demurrer, Plaintiff alleged sufficient facts to constitute a cause of action for retaliation in violation of the FEHA. However, the Court strikes references in the a cause of action pertaining to harassment and discrimination as irrelevant, as the cause of action is only in reference to an underlying cause of action for retaliation in violation of FEHA.

Accordingly, Defendant’s motion to strike FAC ¶¶45-57 is granted in part as to references to a cause of action for harassment and discrimination. Defendant’s motion to strike is denied as to references to the underlying cause of action for retaliation and the 3rd cause of action for failure to prevent retaliation in violation of FEHA.

Defendant moves to strike FAC ¶¶58-69, Plaintiff’s 4th cause of action, on the basis that there is no private right of action under the FFBOR. As stated in the Court’s ruling on the demurrer, The FFBOR gives aggrieved firefighters a private right of action in superior court. (Gov. Code §3260(b).)

Defendant repeats its argument from the demurrer as to the 1st and 2nd causes of action that the allegations were previously adjudicated in Sharlein I. For the same reasons, the Court declines to grant Defendant’s motion to strike portions of the 1st and 2nd causes of action.

Accordingly, Defendant’s motion to strike FAC ¶16, only as to references of harassment and discrimination; ¶¶16(B), (G), (H), (P), (O); ¶17 as to references to Mitchell, harassment, and discrimination; ¶¶18-20 as to references of hostile and discriminatory workplace; and ¶35 is denied.

Defendant’s motion to strike FAC ¶¶45-57 is granted in part as to references to a cause of action for harassment and discrimination. Defendant’s motion to strike is denied as to references to the underlying cause of action for retaliation and the 3rd cause of action for failure to prevent retaliation in violation of FEHA.

Defendant’s motion to strike FAC ¶16, only as to references of harassment and discrimination; ¶¶16(B), (G), (H), (P), (O); ¶17 as to references to Mitchell, harassment, and discrimination; ¶¶18-20 as to references of hostile and discriminatory workplace; and ¶35 is denied.

[1] Defendant’s motion to strike indicates it requests to strike “Prayer for Relief, lines 18-21,” but does not indicate which page of the Prayer it refers to. (See Notice of MTS, pg. 2.) The Court interprets Defendant’s motion to refer to Prayer ¶8.