Judge: Daniel S. Murphy, Case: 22STCV01427, Date: 2022-08-03 Tentative Ruling

Case Number: 22STCV01427    Hearing Date: August 3, 2022    Dept: 32

BACKGROUND

            On January 13, 2022, Plaintiff John Michael Gardner initiated this employment discrimination action against Defendants County of Los Angeles Sheriff’s Department and County of Los Angeles. The operative First Amended Complaint, filed May 27, 2022, adds Sheriff Alex Villanueva as a Defendant and alleges the following causes of action: (1) retaliation; (2) harassment; (3) discrimination; (4) failure to take corrective action; (5) PAGA; (6) Bane Act; and (7) retaliation under Government Code section 53298. Plaintiff alleges racial discrimination and retaliation based on his reporting of sexual harassment and COVID safety violations.

            On January 24, 2022, Plaintiff filed the instant motion for relief from the requirements of the Tort Claims Act. Plaintiff’s claim against the County was rejected by the County as untimely, and Plaintiff’s application for leave to file a late claim was also denied by the County. Accordingly, Plaintiff seeks relief from the Court pursuant to Government Code section 946.6.

LEGAL STANDARD

            Under the Tort Claims Act, certain claims must be presented to a public entity before a plaintiff may file a civil action for damages. (Gov. Code, § 945.4.) A plaintiff must present his claim no later than six months after the cause of action accrues. (Id., § 911.2, subd. (a).) If a claim is rejected as untimely, a plaintiff may file with the government entity an application for leave to file a late claim. (Id., § 911.4.) If this application is rejected, a plaintiff has six months to petition the court for relief from the requirements of Section 945.4. (Id., § 946.6.) This six-month deadline begins running upon the actual denial of the application, not when notice of the denial is given. (Rason v. Santa Barbara City Housing Authority (1988) 201 Cal.App.3d 817, 824.)

            A petition under Section 946.6 must show each of the following: (1) that application was made to the board under Section 911.4 and was denied or deemed denied; (2) the reason for failure to present the claim within the time limit specified in Section 911.2; and (3) the information required by Section 910. (Gov. Code, § 946.6, subd. (b).) The court shall grant the requested relief if it finds that “[t]he failure to 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 Section 945.4.” (Id., subd. (c)(1).)

DISCUSSION

            It should first be noted that “actions against governmental entities brought under the FEHA are to be excepted from the general requirements of the Tort Claims Act. The FEHA constitutes a comprehensive scheme for combating employment discrimination, with specific time limitations related to the remedies provided.” (Snipes v. City of Bakersfield (1983) 145 Cal.App.3d 861, 865; see also Bates v. Franchise Tax Bd. (2004) 124 Cal.App.4th 367, 383 [recognizing “a line of authority holding that in actions arising under [FEHA], plaintiffs who have complied with the administrative remedies set out in that statutory scheme have been excused from also complying with the Government Claims Act”].) “[T]o require [an] appellant to follow both statutory schemes for notice and settlement would be a duplication of processes.” (Snipes, supra, 145 Cal.App.3d at p. 870, fn. 7.) Therefore, this issue only affects Plaintiff’s non-FEHA claims, which are PAGA and retaliation under Government Code section 53298.

            Plaintiff presented a claim to the County on June 8, 2021, outlining the alleged retaliation Plaintiff suffered after filing an internal Office of Inspector General (“OIG”) complaint regarding COVID safety violations. (Morse Decl. ¶ 3, Ex. A, p. 1.) On June 28, 2021, the County notified Plaintiff that his claim had been rejected as untimely. (Id., Ex. B, pp. 1-2.) On July 6, 2021, Plaintiff applied to the County for leave to file a late claim, which the County rejected on July 23, 2021, with notice of the rejection provided to Plaintiff on August 16, 2021. (Id., Ex. B, pp. 4-5.) Plaintiff filed this motion on January 24, 2022.

            Plaintiff claims that while the County initiated a retaliatory investigation into him in April 2020, Plaintiff did not find out about it until April 2021. (Mtn. 10:20-26.) Plaintiff argues that this constitutes inadvertence or surprise justifying the requested relief because the County concealed the investigation from Plaintiff in violation of its own policies. Plaintiff argues that as a result, he did not discover his cause of action until April 2021, thereby causing the delay in presenting his claim to the County.  

            Defendant’s primary argument in opposition to the motion is that the motion was filed late, outside the six-month deadline. Defendant points out that Plaintiff’s application to file a late claim was denied on July 23, 2021, making this motion due on January 23, 2022. (Opp. 3:26-4:3.) Defendant argues that the motion is untimely because it was filed one day later, on January 24, 2022. However, January 23 was a Sunday, so Plaintiff could not have filed the motion on that day. The deadline extends to the following day that is not a holiday, which was Monday, January 24. (See Code Civ. Proc., §§ 12a(a), 135; Gov. Code, § 6700(a)(1).) Additionally, it appears Plaintiff actually filed the petition on January 21, but it was rejected for not abiding by the Court Reservation System requirements. (Reply Ex. A; see UFW of Am. v. Agric. Labor Relations Bd. (1985) 37 Cal.3d 912, 917-18 [rejection for technical defect does not negate timely filing].) Plaintiff was notified of this rejection on the morning of January 24 and refiled the motion that same day. The Court finds that the motion is timely.  

Defendant also doubts Plaintiff’s claim that he did not discover the April 2020 investigation until April 2021, in effect arguing that there is no excusable neglect justifying the requested relief. (Opp. 4:4-11.) However, Plaintiff alleges that Defendant deliberately concealed the retaliatory actions against Plaintiff. Thus, the petition adequately sets forth the reason for failing to present the claim earlier, in addition to the other requirements. (See Gov. Code, § 946.6, subd. (b).) Defendant does not articulate how it would be prejudiced if Plaintiff were to be granted relief from Section 945.4.

CONCLUSION

            Plaintiff’s motion for relief from Government Code section 945.4 is GRANTED.

BACKGROUND

            On January 13, 2022, Plaintiff John
Michael Gardner initiated this employment discrimination action against
Defendants County of Los Angeles Sheriff’s Department and County of Los Angeles.
The operative First Amended Complaint, filed May 27, 2022, adds Sheriff Alex
Villanueva as a Defendant and alleges the following causes of action: (1) retaliation;
(2) harassment; (3) discrimination; (4) failure to take corrective action; (5)
PAGA; (6) Bane Act; and (7) retaliation under Government Code section 53298.

            Plaintiff was hired by the County as
a civilian Security Assistant in May 2012 and promoted to Law Enforcement
Technician in January 2016. (FAC ¶ 16.) In April 2017, Plaintiff filed an
internal Policy of Equality (“POE”) complaint against a female coworker, Heather
Fuquay, for sexual harassment after Ms. Fuquay asked Plaintiff to view her
computer while she was browsing pornographic material. (Id., ¶ 20.) In
May 2017, Plaintiff was relieved of duty and subjected to a disciplinary
investigation, allegedly as retaliation for filing the POE complaint. (Id.,
¶ 22.) Plaintiff was subjected to further investigations from 2017 through 2019,
one of which resulted in an additional suspension, and another which prevented Plaintiff
from obtaining a desired transfer until Plaintiff successfully objected. (Id.,
¶¶ 31-37, 50, 59.)      

            In March 2020, Plaintiff filed an
anonymous complaint with the County’s Office of Inspector General (“OIG”) alleging
COVID safety violations. (FAC ¶¶ 62-63.) Plaintiff alleges that he was forced
to reveal himself as the anonymous complainer after a supervisor threatened
legal action against the complainer for illegal impersonation. (Id., ¶¶
66-69.) Although the supervisor promised Plaintiff that he would not be
subjected to any scrutiny, one week later, Plaintiff’s credentials were frozen,
and he was involuntarily transferred. (Id., ¶¶ 70-71.) In April 2020,
Defendants opened an investigation into Plaintiff for filing a false OIG
complaint. (Id., ¶ 75.) In June 2020, Plaintiff had his duties reduced
to administrative roles. (Id., ¶ 79.)

            Around September 2021, Plaintiff was
restricted from entering the Hall of Justice, purportedly because he had made a
hostile phone call to the Sheriff’s Information Bureau. (FAC ¶ 94.) That same
month, Plaintiff filed a POE complaint against the officers responsible for
spreading the false rumor that Plaintiff placed a hostile phone call. (Id.,
¶ 97.) Plaintiff filed this action in January 2022 and was fired in March 2022.
(Id., ¶¶ 101-103.)

            On June 10, 2022, Defendant County
of Los Angeles filed the instant demurrer to all seven causes of action in the FAC.

LEGAL STANDARD

A demurrer for sufficiency tests whether
the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When
considering demurrers, courts read the allegations liberally and in
context. (Taylor v. City of Los
Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.)
In a demurrer proceeding, the defects must be apparent on the face of the
pleading or by proper judicial notice. (Code Civ. Proc., § 430.30, subd. (a).) A
demurrer tests the pleadings alone and not the evidence or other extrinsic
matters. (SKF Farms v. Superior Court
(1984) 153 Cal.App.3d 902, 905.) Therefore, it lies only where the defects
appear on the face of the pleading or are judicially noticed. (Ibid.) The only issue involved in a
demurrer hearing is whether the complaint, as it stands, unconnected with
extraneous matters, states a cause of action. (Hahn, supra, 147 Cal.App.4th at 747.)

A demurrer for uncertainty is disfavored
and is only granted “if the pleading is so incomprehensible that a defendant cannot
reasonably respond.” (A.J. Fistes Corp. v. GDL Best Contractors, Inc.
(2019) 38 Cal.App.5th 677, 695.) A complaint does not need to be a “model of
clarity” to survive a demurrer because most ambiguities can be clarified through
discovery. (Ibid.)

MEET AND CONFER

Before filing a demurrer or a motion to
strike, the demurring or moving party is required to meet and confer with the
party who filed the pleading demurred to or the pleading that is subject to the
motion to strike for the purposes of determining whether an agreement can be
reached through a filing of an amended pleading that would resolve the
objections to be raised in the demurrer. (Code Civ. Proc., §§ 430.41, 435.5.)
The Court notes that Defendant has complied with the meet and confer requirement.
(See Contreras Decl. ¶ 4.)

DISCUSSION

I.
Timeliness

Defendant argues that the retaliation
claim is untimely because claims arising before January 1, 2020 are subject to
a one-year statute of limitations. (Dem. 6:2-14.) Defendant argues that the
incident occurred in 2017 but Plaintiff only filed his DFEH complaint in
December 2021. (Dem. 6:15-20.) While Plaintiff made the POE complaint against Ms.
Fuquay in 2017, the actual “incidents” that are the basis of this action are
the investigations, disciplinary actions, transfers, and termination that
Plaintiff was subjected to afterwards. According to the allegations, these retaliatory
actions took place throughout 2020 and 2021, with the termination occurring in
2022. Plaintiff also allegedly learned for the first time in December 2021 that
Defendant had reopened an investigation into him in 2020. (FAC ¶ 108.) Thus,
the retaliation claim is timely under the three-year statute of limitations.
(See Gov. Code, § 12960, subd. (e)(5).)

Defendant also argues that the FEHA claims
are untimely because the specific incidents underlying those claims were not
pled in the DFEH complaint. (Reply 3:10-16, 4:22-23, 5:13-14.) However, a civil
complaint may encompass allegations that are “like or reasonably related to”
allegations in a DFEH charge. (Okoli v. Lockheed Technical Operations Co.
(1995) 36 Cal.App.4th 1607, 1614-15.) Plaintiff’s DFEH complaint alleged that
he was harassed, discriminated against because of his race or color, and
retaliated against for resisting discrimination and harassment. (FAC, Ex. A, p.
5.) Defendant cites no authority for the proposition that all incidents alleged
in a civil complaint must first be alleged in a DFEH charge. The claims are
timely, and Plaintiff properly exhausted the administrative remedies prescribed
by FEHA.  

II.
Retaliation

Government Code section 12940, subdivision
(h) makes it unlawful for an employer to retaliate against an employee who
opposes harassment or discrimination. To establish a prima facie case of
retaliation under the FEHA, a plaintiff must show that he: (1) engaged in a
protected activity; (2) the employer subjected him to an adverse employment
action, and (3) a causal link exists between the protected activity and the
employer’s action. (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th
1028, 1042.)

            While Defendant recognizes Plaintiff’s
2017 POE complaint against Heather Fuquay as protected activity, Defendant
argues that there is no causation because Plaintiff was disciplined for viewing
inappropriate material at work, and the POE complaint is too far removed in
time from Plaintiff’s termination. (Dem. 5:18-25.) However, it is a factual issue
whether Defendants’ purported reason for disciplining Plaintiff was truthful. It
is also a factual issue whether the POE complaint caused the investigations, disciplinary
actions, and termination. While temporal proximity helps draw an inference of retaliation,
its absence does not preclude a retaliation claim. Furthermore, Plaintiff was
fired in March 2022, two months after filing this lawsuit for harassment and
discrimination under FEHA. Therefore, the FAC alleges sufficient facts to
support an inference of retaliation.

            The demurrer is OVERRULED as to the
first cause of action.

III.
Harassment

Government Code section 12940, subdivision
(j)(1) makes it unlawful for an employer to harass an employee based on a
protected characteristic. If the perpetrator of the harassment is not an agent
or supervisor, an employer is liable if it knows or should have known of the
harassment and fails to take immediate and appropriate corrective action. (Ibid.)
Harassment focuses on situations in which the social environment of the
workplace becomes intolerable because the harassment communicates an offensive
message to the harassed employee. (Roby v. McKesson Corp. (2009) 47
Cal.4th 686, 706.) “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 working environment.”
(Gov. Code, § 12923, subd. (b).)

Defendant acknowledges the allegations
that Plaintiff is African-American, while Ms. Fuquay is Caucasian and was
dating a Caucasian lieutenant at the time, and the captain responsible for the
adverse actions was Caucasian. (Dem. 7:6:8-10.) However, Defendant argues that “Plaintiff
does not allege any facts to suggest that he was harassed or disciplined based
on his race.” (Dem. 7:10-11.) Plaintiff is not required to allege the evidentiary
facts that would prove the harassment claim. Plaintiff alleges that he was harassed
based on his race. (FAC ¶ 137, 146, 151.) This places Defendant on notice of
the issues, and ambiguities can be resolved in discovery. (See Ludgate Ins. Co. v. Lockheed
Martin Corp. (2000) 82 Cal.App.4th 592, 608.)

Defendant further argues that personnel
decisions cannot form the basis of a harassment claim. (Dem. 7:11-14.) However,
harassment is any conduct that “unreasonably interfere[s] with the plaintiff’s
work performance or create[s] an intimidating, hostile, or offensive working
environment.” (Gov. Code, § 12923, subd. (b).) Accordingly, “in some cases the
hostile message that constitutes the harassment is conveyed through official
employment actions, and therefore evidence that would otherwise be associated
with a discrimination claim can form the basis of a harassment claim.” (Roby,
supra, 47 Cal.4th at p. 708.) As Defendant acknowledges, this requires analyzing
the totality of the circumstances to determine whether the conduct was
sufficiently severe and pervasive. (See Reply 4:3-14.) This is necessarily a
fact-intensive inquiry that cannot be adjudicated at the pleading stage. Ultimately,
the FAC sufficiently alleges a harassment claim.    

The demurrer is OVERRULED as to the second
cause of action.

IV.
Discrimination

Government Code section 12940, subdivision
(a) prohibits an employer from discriminating against an employee based on a
protected characteristic. In order to establish a claim of discrimination,
Plaintiffs must prove: (1) they are in a protected class; (2) an adverse employment
action was taken against them; (3) at the time of the adverse action they were
satisfactorily performing their jobs; and (4) some other circumstance
suggesting discriminatory motive. (Guz v. Bechtel (2000) 24 Cal.4th 317,
355.)

            Defendant relies on the same argument
that Plaintiff does not allege facts demonstrating racial animus. (Dem. 8:1-5.)
As discussed above, the allegations are sufficient to draw an inference of
racial discrimination.

            The demurrer is OVERRULED as to the
third cause of action.

V.
Failure to Take Corrective Action

Government Code section 12940, subdivision
(k) attaches liability to an employer when they fail to take all reasonable
steps necessary to prevent discrimination, harassment, or retaliation from
occurring.

Defendant argues that this claim fails
because Plaintiff has failed to allege the underlying retaliation, harassment,
and discrimination. However, as discussed above, Plaintiff has sufficiently
alleged those causes of action.

The demurrer is OVERRULED as to the fourth
cause of action.

VI.
PAGA

            Plaintiff asserts a PAGA claim based
on violations of various Labor Code provisions regarding workplace safety, discrimination,
and retaliation. (FAC ¶¶ 159-183.) The PAGA claim stems from the same facts and
incidents as the FEHA claims. (Ibid.)        

Defendant argues that the PAGA claim is
uncertain because Plaintiff improperly combines multiple causes of action into
one. (Dem. 8:27-9:2.) Defendant contends that each Labor Code violation should
be a separate cause of action. (Reply 6:15-17.) However, inartful pleading is
not grounds for sustaining a demurrer. (See Skrbina v. Fleming Companies
(1996) 45 Cal.App.4th 1353, 1364-65.) What matters is the substance of a
complaint, not its format. (See Williams v. Beechnut Nutrition Corp.
(1986) 185 Cal.App.3d 135, 139, fn. 2.) The Labor Code allegations incorporate
the same facts supporting the alleged FEHA violations, so Defendant is on
notice of the issues just the same.   

The demurrer is OVERRULED as to the fifth
cause of action.

VII.
Bane Act

            The Bane Act gives individuals a
private cause of action if their exercise of constitutional rights has been
interfered with by threat, intimidation, or coercion. (Civ. Code, § 52.1.) “[T]he
statute was intended to address only egregious interferences with
constitutional rights, not just any tort.” (Julian v. Mission Community
Hospital (2017) 11 Cal.App.5th 360, 395.) “The plaintiff must show the
defendant interfered with or attempted to interfere with the plaintiff’s legal
right by threatening or committing violent acts.” (Ibid.) The statute
was “enacted with hate crimes in mind.” (County Inmate Telephone Service
Cases (2020) 48 Cal.App.5th 354, 372.)

            Here, Plaintiff’s allegations fall
short of the requisite egregious conduct under the Bane Act. The alleged COVID
safety violations that “threatened” the health and safety of employees is not
the type of threat or coercion contemplated by the statute. The retaliatory
actions taken after Plaintiff’s internal complaints also do not constitute threats
or coercion. 

            The demurrer is SUSTAINED without leave
to amend as to the sixth cause of action.

VIII.
Government Code Section 53298

            Government Code Section 53298,
subdivision (a) states that “[n]o local agency officer, manager, or supervisor
shall take a reprisal action against any employee or applicant for employment
who files a complaint pursuant to Section 53297.” Section 53297, subdivision
(a) provides that “[a]n employee, or applicant for employment, shall have the
right to file a complaint with the local agency within 60 days of the date of
the act or event which is the subject of the complaint.” A “complaint” is defined
as “any written document containing a disclosure of information as specified in
subdivision (c).” (Id., § 53296, subd. (d).) A “disclosure of information”
is defined as “the written provision of evidence regarding gross mismanagement
or a significant waste of funds, an abuse of authority, or a substantial and
specific danger to public health or safety.” (Id., subd. (c).)

            Taken together, these provisions essentially
prohibit an employer from retaliating against an employee who provides written
disclosure of gross mismanagement, abuse of authority, or dangers to public safety.
Here, the FAC alleges that Plaintiff was subjected to such retaliation after
filing his OIG complaint about COVID safety. (FAC ¶¶ 192-193.)

            Defendant argues that this cause of
action is uncertain because Plaintiff misstates the law and creates confusion as
to where the law is derived. (Dem. 9:23-10:2.) The pertinent statutory sections
are cited above and must be read in conjunction. Therefore, Plaintiff correctly
alleged that “Cal. Gov. Code § 53298 prohibits reprisals against any employee
who files a complaint regarding ‘gross mismanagement, a significant waste of
funds, an abuse of authority, or a substantial and specific danger to public
health or safety.’” (FAC ¶ 191.)

            The demurrer is OVERRULED as to the
seventh cause of action.

CONCLUSION

            Defendant’s demurrer is SUSTAINED
without leave to amend as to the sixth cause of action and OVERRULED in all
other respects.