Judge: Daniel S. Murphy, Case: 22STCV18166, Date: 2022-10-05 Tentative Ruling

Case Number: 22STCV18166    Hearing Date: October 5, 2022    Dept: 32

BACKGROUND

            On June 2, 2022, Plaintiff Angela Walton initiated this employment action against Defendants County of Los Angeles and Alexandro Villanueva. The operative pleading is the First Amended Complaint filed July 11, 2022. The FAC asserts (1) Labor Code retaliation, (2) FEHA discrimination, (3) FEHA retaliation, and (4) FEHA failure to prevent.

            Plaintiff is a detention facility captain employed by the County. (FAC ¶¶ 23, 24.) Plaintiff alleges that Sheriff Villanueva personally intervened in Plaintiff’s exercise of her duties and actively undermined Plaintiff’s authority. (Id., ¶ 25.) Plaintiff also filed a Policy of Equity (“POE”) complaint against her supervisor, Commander Josie Woolum in August 2021 for harassment. (Id., ¶ 26.) Shortly after, Plaintiff was demoted and lost her command at the detention center, a decision allegedly made by Sheriff Villanueva in conjunction with Commander Woolum and other chiefs. (Ibid.) Plaintiff alleges that Defendants discriminated against her based on her status as an African-American female. (Id., ¶ 28.) Plaintiff also alleges retaliation as a result of her serving as a witness against LASD, complaining about her supervisors’ violations of Civil Service Rules, and opposing other misconduct. (Id., ¶¶ 29-43.)

            On August 30, 2022, Defendant County of Los Angeles filed the instant demurrer to the four causes of action in the complaint, as well as a motion to strike irrelevant material.

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 complaint will survive demurrer if it sufficiently apprises the defendant of the issues, and specificity is not required where discovery will clarify the ambiguities. (See Ludgate Ins. Co. v. Lockheed Martin Corp. (2000) 82 Cal.App.4th 592, 608.) All reasonable inferences are drawn in favor of the complaint. (Kruss v. Booth (2010) 185 Cal.App.4th 699, 713.)

Any party, within the time allowed to respond to a pleading, may serve and file a notice of motion to strike the whole or any part of that pleading. (Code Civ. Proc., § 435, subd. (b).) The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike (1) any irrelevant, false, or improper matter inserted in any pleading and (2) all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Id., § 436.) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Id., § 437.)

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 Muradyan Decl. ¶¶ 2-8.)

DISCUSSION

I. Demurrer

            a. Whistleblower Retaliation (Lab. Code, § 1102.5)

            Labor Code section 1102.5, subdivision (b) makes it unlawful for an employer to retaliate against an employee for reporting a perceived violation of a local, state, or federal statute or regulation. “[A] plaintiff must show (1) she engaged in a protected activity, (2) her employer subjected her to an adverse employment action, and (3) there is a causal link between the two.” (Patten v. Grant Joint Union High School (2005) 134 Cal.App.4th 1378, 1384.)

Defendant first argues that the FAC fails to plead any protected activity because neither the POE complaint against Commander Woolum or the complaint regarding violations of Civil Service Rules constitutes disclosing a violation of a state or federal law. (Dem. 5:15-23.) However, Section 1102.5 prohibits retaliation against an employee who “has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation . . . .” (Lab. Code, § 1102.5(b), emphasis added.) Section 1102.5 is not restricted to reporting violations of state and federal statutes, and only requires a claimant to reasonably believe a violation has occurred. Plaintiff’s complaints regarding the Civil Service Rules and Commander Woolum satisfy this standard, and specific facts should be left for discovery. Therefore, the FAC adequately alleges protected activity.

Defendant next argues that the FAC fails to allege an adverse employment action because Plaintiff was merely transferred while maintaining the role of captain. (Dem. 6:16-22.) An adverse employment action is any “course or pattern of conduct that, taken as a whole, materially and adversely affected the terms, and conditions of a plaintiff’s employment.” (Holmes v. Petrovich Development Co., LLC (2011) 191 Cal.App.4th 1047, 1063.) Plaintiff alleges that she was demoted and lost her command at the detention facility, which can be considered a material change in the conditions of her employment. (See FAC ¶ 26.) Whether this transfer actually constitutes a demotion or materially alters the conditions of employment are factual matters outside the scope of a demurrer. The FAC alleges enough for pleading purposes. (See Ludgate, supra, 82 Cal.App.4th at p. 608.)

Next, Defendant argues that Plaintiff fails to allege any causal connection because the alleged protected activity and adverse employment action were too remote in time. (Dem. 7:9-25.) However, while temporal proximity may lead to an inference of causation, its absence does not preclude a finding of causation. None of the cited caselaw stands for the proposition that temporal proximity is a requirement for establishing causation. Ultimately, Plaintiff has alleged that the demotion was caused by her protected activity, which is sufficient at the pleading stage. (See FAC ¶ 50.) Moreover, Plaintiff alleges that she was demoted a mere eleven days after her POE complaint against Woolum. (FAC ¶ 26.) The clerical error as to the year is immaterial, as Plaintiff’s meaning is clear based on a whole reading of the complaint. The alleged events occurred in August 2021, not 2022.  

Lastly, Defendant argues that the claim is barred under the Tort Claims Act because the alleged adverse employment actions took place after the applicable coverage period. (Dem. 8:5-19.) 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.) Defendant contends that because Plaintiff presented her tort claims on February 8, 2022 and was notified of Defendant’s rejection on April 7, 2022, Plaintiff may only sue for actions between August 9, 2021 and April 7, 2022. Defendant argues that all of the alleged transfers occurred after April 7, 2022. However, Plaintiff alleges that she was demoted out of the detention facility on August 15, 2021, within the purported timeframe. (FAC ¶ 26.) Plaintiff also filed a second tort claim on May 11, 2022.  (Plntf.’s RJN, Ex. A)    

The demurrer is otherwise OVERRULED as to the first cause of action because it contains sufficient facts.

b. Discrimination (Gov. Code, § 12940(a))

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, a plaintiff 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 job; and (4) some other circumstance suggesting discriminatory motive. (Guz v. Bechtel (2000) 24 Cal.4th 317, 355.)

Defendant first argues that the FAC is uncertain because it combines multiple causes of action into one by alleging discrimination on the basis of multiple characteristics. (Dem. 9:15-25.) 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.) 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 FAC is clear enough for Defendant to respond to.  

Defendant also argues that the FAC is factually deficient because it merely alleges that Plaintiff is an African-American female and was discriminated against based on race and gender, without any “facts to explain how her transfer was related to her race or gender.” (Dem. 10:4-9.) However, the allegations are sufficient at the pleading stage. Plaintiff is not required to plead the evidentiary facts that would prove the discrimination.  

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

c. Retaliation (Gov. Code, § 12940(h))

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.) Defendant rehashes the argument that there was no adverse employment action or causation. (Dem. 10:27-28.) These arguments fail for the same reasons discussed above.

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

d. Failure to Prevent (Gov. Code, § 12940(k))

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 and discrimination. (Dem. 11:3-15.) However, as discussed above, Plaintiff has sufficiently alleged those causes of action.

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

II. Motion to Strike

            Defendant moves to strike various items from the complaint on the grounds that they are irrelevant to Plaintiff’s causes of action. The Court disagrees.

            a. Paragraphs 15-17

            Allegations regarding Defendant’s inadequate investigations into Plaintiff’s complaints are relevant to establishing Defendant’s failure to respond adequately for purposes of Plaintiff’s failure to prevent claim.

            b. Paragraph 25

            The allegations regarding Sheriff Villanueva’s alleged undermining of Plaintiff’s authority are relevant to establishing bias, as Villanueva is a named Defendant who allegedly participated in the discrimination and retaliation.  

            c. Paragraphs 26, 28

            Allegations regarding Plaintiff’s POE complaint against Woolum are relevant because they serve as a basis for the whistleblower and retaliation claims. Facts regarding another African-American lieutenant who was also demoted are relevant to establishing Defendant’s bias against African-Americans. Allegations pertaining to Plaintiff’s own race are obviously relevant.

            d. Paragraph 40

            Allegations regarding other similarly-situated employees who were treated differently than Plaintiff are relevant to establishing Defendant’s discriminatory and retaliatory animus against Plaintiff.

e. Paragraph 43

            Allegations about Plaintiff’s refusal to participate in a coverup by Villanueva are relevant to establishing Plaintiff’s opposition to perceived legal violations, which serve as the basis for her retaliation claims. The facts detailing the alleged coverup are alleged in paragraphs 29-43. The complaint is read as a whole.

            Defendant’s motion to strike is DENIED.

CONCLUSION

            Defendant County of Los Angeles’s demurrer is OVERRULED, and its motion to strike is DENIED.