Judge: Daniel S. Murphy, Case: 20STCV13060, Date: 2023-02-22 Tentative Ruling

Case Number: 20STCV13060    Hearing Date: February 22, 2023    Dept: 32

BACKGROUND

On March 18, 2020, Sarah McClain-Fowler (“Plaintiff”) commenced this action against Eastside Union School District (“Defendant”), alleging seven causes of action stemming from alleged disability discrimination, retaliation, and failure to accommodate.  

Defendant hired Plaintiff around August 2017 as a probationary special education teacher at Enterprise Elementary School. (UMF No. 1; AMF No. 3.) Plaintiff was then assigned to Tierra Bonita Elementary School for the 2018-19 school year. (UMF No. 18.) Throughout her employment, Plaintiff made various complaints regarding staffing issues, hostile work environment, and ADA violations. (UMF No. 34, AMF Nos. 3-7, 10.) Plaintiff informed her union representative that she experienced stress and anxiety as a result of classroom issues at Enterprise Elementary. (AMF No. 5.) Under the Education Code, Defendant had until March of Plaintiff’s second year of teaching to decide whether Plaintiff should be reelected for tenure. (UMF No. 2.) In February 2019, Plaintiff was issued a notice of non-reelection. (UMF No. 58.) In two separate instances in March 2019, Plaintiff sustained physical injuries after being attacked by a student. (UMF No. 74-75.) Defendant engaged with Plaintiff and her doctors and allowed Plaintiff to stay home or take modified duty for these injuries. (UMF No. 76.) Plaintiff’s employment with Defendant ended in June 2019 pursuant to the February notice of non-reelection. (UMF No. 78.)    

Plaintiff alleges that she was non-reelected due to her disability and reporting of ADA and other legal violations, giving rise to this action. (Compl. ¶¶ 32, 41, 69.) Plaintiff also alleges that Defendant failed to engage in good faith or accommodate her disability. (Id., ¶¶ 52-65.) 

On May 26, 2021, Defendant moved for summary judgment or adjudication in the alternative. On August 11, 2021, the Court granted summary adjudication on the FEHA claims.

            On January 27, 2023, Defendant filed the instant motion for judgment on the pleadings against the remaining claim for whistleblower retaliation (Lab. Code § 1102.5), arguing that Plaintiff failed to comply with the Government Claims Act.   

LEGAL STANDARD

A motion for judgment on the pleadings may be made on the same grounds as those supporting a general demurrer, i.e., that the complaint fails to state facts sufficient to constitute a legally cognizable claim. (Stoops v. Abbassi (2002) 100 Cal.App.4th 644, 650.) A motion for judgment on the pleadings performs the same function as a general demurrer, and hence attacks only defects disclosed on the face of the pleadings or by matters that can be judicially noticed. (Cloud v. Northrop Grumman Corp. (1999) 67 Cal.App.4th 995, 999.) Judgment on the pleadings must be denied where there are material factual issues that require evidentiary resolution. (Schabarum v. Calif. Legislature (1998) 60 Cal.App.4th 1205, 1216.)

DISCUSSION

Under the Government Claims Act, “no suit for money or damages may be brought against a public entity on a cause of action for which a claim is required to be presented . . . until a written claim therefor has been presented to the public entity and has been acted upon by the board, or has been deemed to have been rejected by the board . . . .” (Gov. Code, § 945.4.) Among other things, the claim must include “[t]he date, place and other circumstances of the occurrence or transaction which gave rise to the claim asserted,” and “[a] general description of the indebtedness, obligation, injury, damage or loss incurred so far as it may be known at the time of presentation of the claim.” (Id., § 910.) “[F]ailure to allege facts demonstrating or excusing compliance with the claim presentation requirement subjects a claim against a public entity to a demurrer for failure to state a cause of action.” (Lowry v. Port San Luis Harbor Dist. (2020) 56 Cal.App.5th 211, 218.)

Plaintiff alleges that she filed a claim with Defendant on August 6, 2019. (Compl. ¶ 10.) When this issue arose previously on demurrer and summary judgment, Plaintiff referred back to the August 6, 2019 filing to demonstrate that she complied with the Government Code. (Def.’s RJN, Ex. 4, 5.) Defendant argues that Plaintiff failed to comply with the Government Claims Act because the August 6, 2019 filing submitted to Defendant did not identify retaliation or Labor Code section 1102.5. The referenced “Claim for Damages Form” alleges that Plaintiff was wrongfully terminated on June 6, 2019 and further alleges sexual harassment by an employee named Francisco Pinto. (Def.’s RJN, Ex. 1.) Defendant contends that alleging wrongful termination stemming from sexual harassment does not constitute providing notice of a forthcoming whistleblower retaliation claim under the Labor Code.

While Defendant focuses on the “Claim for Damages Form,” the August 6, 2019 filing consists of additional materials mentioning retaliation. (Miller Decl., Ex. 1.) Specifically, Plaintiff included her DFEH complaint, which alleges that “Complainant experienced retaliation because complainant reported or resisted any form of discrimination or harassment” and was “retaliated against based upon her . . . engagement in protected activities . . . .” (Id., p. 2 of DFEH Compl.) The DFEH complaint identifies Plaintiff’s protected activity by alleging that “[o]n or about August 2018, Ms. McClain-Fowler began complaining to Respondents about unsafe and illegal practices to no avail.” (Ibid.) This sufficiently places Defendant on notice of the possibility of a retaliation claim, including one based on Labor Code section 1102.5. There is no requirement for the statute to be specifically listed. Retaliation under both FEHA and the Labor Code contain practically identical elements. (See Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042 [FEHA]; Patten v. Grant Joint Union High School (2005) 134 Cal.App.4th 1378, 1384 [Labor Code].) Plaintiff’s allegation of reporting unsafe and illegal practices is broad enough to encompass protected activity under both statutes.

Defendant argues that Plaintiff has limited herself to the “Claim for Damages Form” because Plaintiff has identified that as the sole document satisfying the claim requirement. However, Defendant’s own materials show that Plaintiff has referenced the entire August 6, 2019 filing as proof of compliance with the Government Claims Act. (See Def.’s RJN, Ex. 4 [Plntf.’s Opp. to Demurrer].) Defendant cites no authority requiring a government claim to be limited to any particular document or for the claim to be specifically labeled as a government claim. As Defendant acknowledges, the purpose of the Government Code requirements is “to provide the public entity with notice of the claim so it can make an adequate investigation of the merits of the claim.” (Mtn. 7:1-2.) “Consequently, a claim need not contain the detail and specificity required of a pleading, but need only ‘fairly describe what [the] entity is alleged to have done.’” (Stockett v. Association of Cal. Water Agencies Joint Powers Ins. Authority (2004) 34 Cal.4th 441, 446.) Plaintiff’s August 6, 2019 filing, as a whole, satisfies this purpose. Plaintiff fairly described what Defendant did by alleging that Defendant fired her for reporting unsafe and illegal practices. That the filing simultaneously satisfies FEHA notice requirements does not preclude it from also complying with the Government Claims Act.

Defendant previously challenged the same Labor Code claim on summary judgment by similarly arguing that Plaintiff did not comply with the Government Claims Act. The Court rejected this argument due to the fact that Plaintiff served “a notice of complaint and notice of right to sue from the DFEH and a claim for damages form . . . .” (Aug. 11, 2021 Order re MSJ 8:19-25.) Therefore, the Court has already acknowledged that the DFEH complaint and damages form in conjunction may properly place Defendant on notice, at the very least raising a triable issue. Defendant’s latest attempt at challenging Plaintiff’s Labor Code claim based on the more liberal demurrer standard is unavailing, as Plaintiff is only required to allege compliance at the pleading stage, not prove it.   

In sum, it is not apparent on the face of the complaint or from judicially noticeable materials that Plaintiff has failed to comply with the Government Claims Act.

CONCLUSION

            Defendant’s motion for judgment on the pleadings is DENIED.