Judge Daniel M. Crowley, Case Number: 23STCV31384, Date: 2024-05-21 Tentative Ruling

Defendant City of San Fernando’s demurrer to Plaintiff Brittany Najera’s first amended complaint is sustained with 20 days leave to amend as to the 1st, 2nd, 3rd, and 4th causes of action.

Defendant City of San Fernando (“City”) (“Defendant”) demurs to Plaintiff Brittany Najera’s (“Najera”) (“Plaintiff”) first amended complaint (“FAC”) on the basis the entire FAC fails to state facts sufficient to allege causes of action against Defendant and is uncertain. (Notice of Demurrer, pgs. 1-2; C.C.P. §§430.10(e), (f).)

Plaintiff filed her initial Complaint against Defendant on December 22, 2023. Plaintiff filed the operative FAC on March 6, 2024, alleging four causes of action: (1) harassment; (2) discrimination; (3) FEHA retaliation; and (4) failure to take corrective action.[1]

Plaintiff’s FAC arises out of her employment by Defendant, which began on or about September 2015, with the San Fernando Police Department. (See FAC ¶10.) Plaintiff alleges at the time of her hiring, there were three female officers in the department, which had a total of 30 officers, however, Plaintiff was the only female officer in patrol. (FAC ¶11.) Plaintiff alleges the department’s command staff was hostile to females from the beginning. (FAC ¶12.)

Plaintiff alleges Police Chief Vairo told Plaintiff after a few months on the force that it was okay to quit, and law enforcement was not for everyone. (FAC ¶13.) Plaintiff alleges she was objectively doing well on the force, and thus, the comments were unwanted and unwarranted. (FAC ¶13.) Plaintiff alleges Chief Vairo did not make such comments to male officers. (FAC ¶13.)

Plaintiff alleges on or about 2016, at a retirement party for a male officer, Lt. Hanchett suddenly put money down Plaintiff’s chest, which was unwelcome and unwanted. (FAC ¶14.) Plaintiff alleges despite the presence of command staff, no one said anything or initiated an investigation. (FAC ¶14.) Plaintiff alleges Hanchett was not disciplined in any manner. (FAC ¶14.)

Plaintiff alleges on or about 2016, Plaintiff was required to testify in a deposition. (FAC ¶15.) Plaintiff alleges Chief Vairo attempted to prevent and dissuade Plaintiff from testifying, yet Plaintiff provided truthful testimony. (FAC ¶15.)

Plaintiff alleges at the end of 2020 she was instrumental in the arrest of an individual for illegally having a large quantity of guns. (FAC ¶16.) Plaintiff alleges Lt. Rosenberg was the supervisor involved and oversaw the warrant. At a meeting, Rosenberg ignored Plaintiff, and asked to speak with the remaining team members. (FAC ¶16.) Plaintiff alleges Rosenberg instructed Plaintiff to leave the meeting. (FAC ¶16.) Plaintiff alleges when she stayed to brief Rosenberg, he ignored her even though she was the only knowledgeable team member. (FAC ¶16.) Plaintiff alleges when a male team member repeated Plaintiff’s comments, then Rosenberg finally listened. (FAC ¶16.) Plaintiff alleges that after, the warrant was executed. (FAC ¶16.) Plaintiff alleges she gave instructions on how the weapons should be packed up. (FAC ¶16.) Plaintiff alleges Rosenberg arrived and refuted Plaintiff’s instructions. (FAC ¶16.) Plaintiff alleges when a male team member repeated Plaintiff’s instructions and reasoning, Rosenberg accepted it. (FAC ¶16.)

Plaintiff alleges on or about 2020, she put in for the k-9 unit, which is a specialized assignment that comes with a pay increase. (FAC ¶17.) Plaintiff alleges Chief Vairo tried to discourage Plaintiff from pursuing the k-9 position. (FAC ¶18.) Plaintiff alleges Vairo told Plaintiff that the assignment was “hard work,” and implied frequently that Plaintiff or women were not suited for demanding assignments. (FAC ¶18.) Plaintiff alleges eventually, a male officer was selected for the k-9 position. (FAC ¶19.) Plaintiff alleges the officer was given preferential treatment, special training ahead of time, and the interview questions. (FAC ¶19.) Plaintiff alleges she was denied the position, and not given an explanation for her score(s). (FAC ¶19.)

Plaintiff alleges soon thereafter, an two FTO positions were available. (FAC ¶20.) Plaintiff alleges ahead of the selection, Lt. Rosenberg told Plaintiff that “she needed to talk to him” if she wanted the position. (FAC ¶20.) Plaintiff alleges she was uncomfortable with Rosenberg’s proposition and applied for the FTO position through the formal process. (FAC ¶20.) Plaintiff alleges while there were two FTO positions available, and only two candidates (Plaintiff and a male officer), Plaintiff was denied the FTO position, which left a vacant position. (FAC ¶20.)

Plaintiff alleges when applications opened again for the vacant FTO position, a sergeant with the FTO program told Plaintiff that she had no chance of getting the position because Rosenberg would block it. (FAC ¶21.) Plaintiff alleges on or about January 2021, Plaintiff filed a complaint of sexual harassment and discrimination, which included complaints about Rosenberg. (FAC ¶22.) Plaintiff alleges the night that the complaint was filed, Rosenberg gave Plaintiff a reprimand for allegedly violating COVID rules. (FAC ¶23.) Plaintiff alleges Rosenberg and other officers present were also in violation of the same COVID rules. (FAC ¶23.)

Plaintiff alleges on or about April 2021, Plaintiff and other officers were involved in an officer-involved-shooting. (FAC ¶24.) Plaintiff alleges when Plaintiff asked for time to recover, Chief Vairo derisively said no need to be babies. (FAC ¶24.)

Plaintiff alleges on or about September 2021, Plaintiff was counseled by Lt. Hanchett for a social media post that Plaintiff’s father had made. (FAC ¶25.) Plaintiff alleges she did not make the social media post, and analogous posts were made by other officers without any counseling or discipline. (FAC ¶25.)

Plaintiff alleges on or about September 2021, an FTO complained to Lt. Hanchett about Plaintiff’s alleged failure to respond to a call. (FAC ¶26.) Plaintiff alleges the FTO was actually at fault. (FAC ¶26.)

Plaintiff alleges on or about November 2021, Plaintiff was involved in a shooting with a suspect. (FAC ¶27.) Plaintiff alleges despite being ambushed by the suspect, Plaintiff did not receive much assistant from the command staff. (FAC ¶27.) Plaintiff alleges the supervising sergeant did not arrive until 20 minutes after the incident. (FAC ¶27.) Plaintiff alleges the supervising sergeant fabricated his initial report, and was not investigating for lying in the report. (FAC ¶27.) Plaintiff alleges Lt. Rosenberg interrogated Plaintiff after the incident, and asked for her recorder, which was in violation of department policies. (FAC ¶27.) Plaintiff alleges that later, the command staff did not want to give Plaintiff time off to recover, which prompted action by the legal defense fund. (FAC ¶27.)

Plaintiff alleges she attempted to get departmental awards that she was entitled to and the awards were based on objective evidence such as arrest statistics, and should not have been discretionary. (FAC ¶28.) Plaintiff alleges she had to hound her supervising sergeant to nominate her for the award. (FAC ¶28.) Plaintiff alleges that nevertheless, she was passed over for three earned awards. (FAC ¶28.) Plaintiff alleges awards improve an officer’s chances at obtaining promotions and specialized assignments. (FAC ¶28.)

Plaintiff alleges on or about January 2022, Lt. Hanchett, who was acting chief of police, decided to open an IA against Plaintiff. (FAC ¶29.) Plaintiff alleges Lt. Rosenberg reviewed Plaintiff’s PUMA recording, and decided to contact the suspect involved in the incident. Rosenberg’s actions were contrary to policy and procedures. (FAC ¶30.) Plaintiff alleges through Rosenberg’s fabrication, the suspect accused Plaintiff of excessive force. (FAC ¶31.) Plaintiff alleges even though there were numerous other officers involved in the incident, Plaintiff was the only one subject to an IA and charges. (FAC ¶31.) Plaintiff alleges that subsequently, she was targeted with multiple internal investigations that were meant to adversely affect Plaintiff. (FAC ¶32.) Plaintiff alleges male officers and/or officers who did not engage in protected activity were not subject to investigation for analogous conduct. (FAC ¶32.)

Plaintiff alleges on or about February 22, 2022, Chief Valdez started as Chief. (FAC ¶33.) Plaintiff alleges on or about March 2022, she was placed on administrative leave without justification. (FAC ¶34.) Plaintiff alleges as result of pressure from Defendant, Plaintiff went into labor one month before her due date. (FAC ¶35.) Plaintiff alleges later, Defendant would use Plaintiff’s emergency labor as a negative factor against her in the termination. (FAC ¶35.) Plaintiff alleges from November 2022 to January 2023 she was on maternity leave. (FAC ¶36.)

Plaintiff alleges on or about February 2023, Plaintiff’s LEXIPOL was audited. (FAC ¶37.) Plaintiff alleges male officers and/or officers who did not engage in protected activity were not audited. (FAC ¶37.)

Plaintiff alleges Lt. Rosenberg routinely scrutinized Plaintiff’s work without any legitimate basis. (FAC ¶38.) Plaintiff alleges Rosenberg criticized Plaintiff frequently without basis, and fabricated a narrative that Plaintiff was a sub-par officer. (FAC ¶38.) Plaintiff alleges male officers were not subject to such scrutiny or disparagement. (FAC ¶38.) Plaintiff alleges Rosenberg refused to respond to Plaintiff’s greetings and did not acknowledge her even in front of other officers. (FAC ¶39.) Plaintiff alleges Rosenberg made demeaning facial expressions and gestures toward Plaintiff. (FAC ¶39.) Plaintiff alleges Rosenberg’s improper behavior were continuous and occurred until Plaintiff’s termination. (FAC ¶40.) Plaintiff alleges on or about March 10, 2023, Plaintiff was terminated without justification. (FAC ¶41.)

On April 8, 2024, Defendant filed the instant demurrer. On May 8, 2024, Plaintiff filed her opposition. Defendant filed its reply on May 14, 2024.

Before filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person, by telephone, or by video conference with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer. (C.C.P. §430.41(a), emphasis added.) A declaration must be filed with a demurrer regarding the results of the meet and confer process. (C.C.P. §430.41(a)(3).)

Defendant’s counsel declares she met and conferred telephonically with Plaintiff’s counsel on April 8, 2024, and the parties were unable to resolve the issues in the demurrer. (Decl. of Hilgers ¶2.) Defendant’s counsel’s declaration is sufficient under C.C.P. §430.41(a). Accordingly, the Court will consider the instant demurrer.

Defendant demurs to Plaintiff’s entire FAC on the basis the causes of action fail to state facts sufficient to constitute causes of action against Defendant and are uncertain.[2] (Demurrer, pgs. 3-6; C.C.P. §§430.10(e), (f).)

“[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.)

Defendant demurs to Plaintiff’s FAC on the basis none of the causes of action are pled with the requisite specificity in order to withstand a demurrer on the basis that “because under the [Government] Claims Act all governmental tort liability is based on statute, the general rule that statutory causes of action must be pleaded with particularity is applicable. Thus, to state a cause of action against a public entity, every fact material to the existence of its statutory liability must be pleaded with particularity.” (Hood v. Hacienda La Puente Unified Sch. District (1998) 65 Cal.App.4th 435, 439, internal citations and quotations omitted.) Defendant’s demurrer to Plaintiff’s entire FAC on this basis is generalized and defective—it is necessary to examine each cause of action to make such a determination.

“To establish a prima facie case of a hostile work environment, [the plaintiff] must show that (1) [plaintiff] is a member of a protected class; (2) [plaintiff] was subjected to unwelcome harassment; (3) the harassment was based on [plaintiff’s] protected status; (4) the harassment unreasonably interfered with [plaintiff’s] work performance by creating an intimidating, hostile, or offensive work environment; and (5) defendants are liable for the harassment.” (Ortiz v. Dameron Hospital Association (2019) 37 Cal.App.5th 568, 581.)

“California has adopted the three-stage burden-shifting test for discrimination claims set forth in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792. ‘This so-called McDonnell Douglas test reflects the principle that direct evidence of intentional discrimination is rare, and that such claims must usually be proved circumstantially. Thus, by successive steps of increasingly narrow focus, the test allows discrimination to be inferred from facts that create a reasonable likelihood of bias and are not satisfactorily explained.’” (Sandell v. Taylor-Listug, Inc. (2010) 188 Cal.App.4th 297, 307, internal citations omitted.)

Defendant argues (1) the alleged harassment and discrimination is all based on the same alleged conduct, and Plaintiff does not specify whether the alleged harassment/discrimination is on the basis of gender, race, or pregnancy status; (2) the conduct complained of is not severe or pervasive, and some of the alleged events fall outside the three-year statute of limitations applicable to FEHA claims; and (3) Plaintiff’s DFEH complaint was filed on 12/21/23, so any events occurring prior to 12/21/20 would not be actionable and are irrelevant because the timely filing of an administrative complaint and exhaustion of that remedy is a prerequisite to maintenance of a civil action for damages under FEHA. (Demurrer, pg. 5.)

Defendants’ arguments are unavailing. First, there is no separate cause of action necessary to allege discrimination on the basis of different protected characteristics. (Soria v. Univision Radio Los Angeles, Inc. (2016) 5 Cal.App.5th 570, 585 n.4 [“Whether captioned as one or more causes of action in a complaint, discrimination based on each protected characteristic is a separate claim under FEHA. (Mathieu v. Norrell Corp. (2004) 115 Cal.App.4th 1174, 1187, 10 Cal.Rptr.3d 52 [allegations of sexual harassment and retaliation actually alleged two separate causes of action under FEHA even though pleaded in single count of complaint]; see Skrbina v. Fleming Companies (1996) 45 Cal.App.4th 1353, 1364, 53 Cal.Rptr.2d 481 [plaintiff who alleges defendant's single wrongful act invaded two different rights has stated two causes of action even though pleaded in a single count of the complaint].”].)

Second, Defendant’s argument regarding the standard of “severe and pervasive” conduct is not in line with current case law regarding allegations of harassment. Government Code §12923(b) states that “[a] single incident of harassing conduct is sufficient to create a triable issue regarding the existence of a hostile work environment if the harassing conduct has unreasonably interfered with the plaintiff’s work performance or created an intimidating, hostile, or offensive work environment.” (Gov. Code §12923(b).)

Third, Defendant’s argument pertaining to the statute of limitations on conduct that occurred prior to Plaintiff filing her DFEH complaint is not sufficient to eliminate an entire cause of action that alleges conduct that occurred subsequent to the filing of the DFEH complaint. (See Wyatt v. Union Mortgage Co. (1979) 24 Cal.3d 773, 786 [stating statute of limitations on continuing tort cause of action does not begin to run until commission of last overt act].) Further, allegations that an event occurred “on or about” the crucial date for statute of limitations purposes overcome a general demurrer. It is enough that the claim may be timely. (Childs v. State of California (1983) 144 Cal.App.3d 155, 160; see Esparza v. Kaweah Delta District Hospital (2016) 3 Cal.App.5th 547, 556 [stating allegation that claim timely presented “on or at” specified date not ambiguous or inconsistent with general allegation of compliance with claims presentation statute].)

However, based on the face to the FAC, Plaintiff’s causes of action do not identify the statute these causes of action are allegedly based on. (Zuniga v. Housing Authority (1995) 41 Cal.App.4th 82, 96 [stating to adequately state a cause of action against a public entity, every fact essential to the existence of the statutory liability must be plead with particularity, and the statute or enactment claimed to establish the duty must at the very least be identified].)

Accordingly, Defendant’s demurrer to Plaintiff’s 1st and 2nd causes of action is sustained with 20 days leave to amend.

“[I]n order to establish a prima facie case of retaliation under the FEHA, a 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.” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042, internal citations omitted.)

For the same reason the Court sustained Defendant’s demurrer to the 1st and 2nd causes of action, that Plaintiff’s cause of action does not identify the statute these causes of action are allegedly based on, Defendant’s demurrer to Plaintiff’s 3rd cause of action is sustained.

Accordingly, Defendant’s demurrer to Plaintiff’s 3rd cause of action is sustained with 20 days leave to amend.

“Once an employer is informed of the sexual harassment, the employer must take adequate remedial measures. The measures need to include immediate corrective action that is reasonably calculated to (1) end the current harassment and (2) to deter future harassment. [Citation.] The employer’s obligation to take prompt corrective action requires (1) that temporary steps be taken to deal with the situation while the employer determines whether the complaint is justified and (2) that permanent remedial steps be implemented by the employer to prevent future harassment … .” (M.F. v. Pacific Pearl Hotel Management LLC (2017) 16 Cal.App.5th 693, 701.)

A finding of actual discrimination or harassment under FEHA is a required element for a plaintiff to prevail on a failure to prevent claim. (Dickson v. Burke Williams, Inc. (2015) 234 Cal.App.4th 1307, 1314.)

This Court sustained Defendant’s demurrers to Plaintiff’s discrimination and harassment causes of action. Therefore, Plaintiff’s derivative cause of action for failure to prevent must also be sustained.

Accordingly, Defendant’s demurrer to Plaintiff’s 4th cause of action is sustained with 20 days leave to amend.

Defendant’s demurrer to Plaintiff’s FAC is sustained with 20 days leave to amend as to the 1st, 2nd, 3rd, and 4th causes of action.

Hon. Daniel M. Crowley

Judge of the Superior Court

[1] The Court notes Plaintiff’s FAC caption indicates there are five causes of action, listing a cause of action for whistleblower retaliation. However, Plaintiff does not substantively allege a cause of action for whistleblower retaliation in her FAC. Therefore, the Court notes there are only four causes of action at issue, and therefore regards the FAC caption as erroneous.

[2] The Court notes Defendant does not substantively demur to Plaintiff’s causes of action on the basis of uncertainty. Therefore, the Court’s ruling does not address this issue.