Judge: Daniel S. Murphy, Case: 23STCV07199, Date: 2023-10-20 Tentative Ruling

Case Number: 23STCV07199    Hearing Date: October 20, 2023    Dept: 32

BACKGROUND

            This is an employment discrimination action initially filed on March 30, 2023. The operative First Amended Complaint was filed on July 28, 2023. Plaintiff Leniece Williams asserts fifteen causes of action against the County of Los Angeles, various departments therein, and various individuals. Plaintiff alleges that she was mistreated and harassed based upon her race, national origin, color, ethnicity, age, and physical disability.

            On September 12, 2023, the County and the individual defendants (with the exception of Lisa Wong and Holly Mitchell) filed the instant demurrer and motion to strike against the FAC. Plaintiff filed her opposition on October 11, 2023. Defendants filed their reply on October 13, 2023.

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.)

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 Defendants have complied with the meet and confer requirement. (See Gordon Decl.)

DISCUSSION

I. Demurrer

            a. Individual Liability

Defendants argue that the first, second, third, fourth, seventh, tenth, and eleventh causes of action for discrimination, failure to accommodate, failure to prevent, and retaliation cannot be asserted against the individual defendants because those claims can only be asserted against Plaintiff’s employer, the County.  

                        1. FEHA

            FEHA prohibits employers from discriminating or retaliating against employees. (See Gov. Code, § 12940(a), (h).) However, individual employees cannot be liable for discrimination or retaliation. (See Reno v. Baird (1998) 18 Cal.4th 640, 663 [“individuals who do not themselves qualify as employers may not be sued under the FEHA for alleged discriminatory acts”]; Jones v. Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158, 1173 [“the employer is liable for retaliation under section 12940, subdivision (h), but nonemployer individuals are not personally liable for their role in that retaliation”].)

Despite the language in Government Code section 12926(d) that defines “employer” as including any agent of an employer, no individual may be held personally liable for discrimination unless that individual independently qualifies as an employer. (Raines v. U.S. Healthworks Medical Group (2023) 15 Cal.5th 268, 276.) The same applies to retaliation even though Section 12940(h) prohibits any “person” from engaging in retaliation. (Id. at p. 277.) The Legislature used specific language to denote individual employee liability, such as for harassment. (See Gov. Code, § 12940(j).) Such language is absent from the provisions governing discrimination and retaliation, indicating that only employers, not individual employees, can be liable for those claims. (Raines, supra, 15 Cal.5th at p. 277.)

Plaintiff cites Taylor v. City of Los Angeles Dept. of Water & Power (2006) 144 Cal.App.4th 1216 and Walrath v. Sprinkel (2002) 99 Cal.App.4th 1237 for the proposition that a supervisor may be held personally liable for retaliation under the FEHA. Both cases were expressly rejected by the Supreme Court in Jones, supra, 42 Cal.4th at pp. 1173-74.  

It is certainly possible for individuals to be liable as employers if they independently satisfy the definition of employer. Obviously, not all employers are companies or public entities. However, in this particular case, there are no factual allegations from which it may be inferred that any defendant besides the County qualifies as an employer. Instead, the allegations make clear that the County was Plaintiff’s employer, while the individual defendants were Plaintiff’s supervisors or other employees of the County. Therefore, the individual defendants cannot be held liable for discrimination or retaliation under FEHA.

The same applies for failure to accommodate and failure to engage. Sections 12940(m) and 12940(n) expressly limit liability to “an employer or other entity covered by this part.” For the same reasons discussed above, the individual defendants are not considered employers, and they are clearly not entities. Failure to prevent similarly applies only to “an employer, labor organization, employment agency, apprenticeship training program, or any training program leading to employment.” (Gov. Code, § 12940(k).) This definition excludes the individual defendants from liability.

            2. Labor Code

Labor Code section 1102.5 prohibits “[a]n employer, or any person acting on behalf of the employer” from retaliating against whistleblowers. (Lab. Code, § 1102.5(b).) For the same reasons discussed above, the mere mention of “person” does not impose individual employee liability. Plaintiff has not cited any authority, nor is the Court aware of any, that Section 1102.5 is intended to impose liability on non-employer individuals.

In sum, the individual defendants cannot be liable under the first, second, third, fourth, seventh, tenth, and eleventh causes of action as a matter of law.   

            b. Hostile Work Environment

            Plaintiff’s sixth cause of action is for hostile work environment under Government Code section 12923. Section 12923 does not impose liability or proscribe any conduct. Rather, that section merely declares the Legislature’s “intent with regard to application of the laws about harassment contained in this part.” (Gov. Code, § 12923.) Liability for hostile work environment is enumerated in Section 12940(j), which prohibits harassment. Plaintiff has asserted a harassment claim in her fifth cause of action, which Defendants do not challenge. Therefore, the sixth cause of action is improperly pled.

            c. Unbiased Neutral Investigation

            Plaintiff’s eighth cause of action is for failure to provide an unbiased neutral investigation under Government Code section 12940(i). However, Section 12940(i) refers to aiding and abetting a violation of FEHA, which Plaintiff already asserts in her ninth cause of action.

            Plaintiff’s argument in support of this claim discusses an employer’s obligation to ensure a discrimination-free workplace, which falls under failure to prevent. (See Gov. Code, § 12940(k).) Plaintiff also discusses an employer’s duty to take immediate and appropriate corrective action, which falls under Section 12940(j)(1). Plaintiff has already asserted both of these claims in the fifth and seventh causes of action.

Asserting a separate cause of action for failure to conduct an unbiased investigation is duplicative and adds nothing to the complaint. (See Award Metals, Inc. v. Superior Court (1991) 228 Cal.App.3d 1128, 1135.) Therefore, the eighth cause of action is improperly pled.

d. Aiding and Abetting

Plaintiff’s ninth cause of action is for aiding and abetting a violation of FEHA. Government Code section 12940(i) makes it unlawful “[f]or any person to aid, abet, incite, compel, or coerce the doing of any of the acts forbidden under this part, or to attempt to do so.” This does not apply to government entities because FEHA’s definition of “person” does not include government entities. (See Gov. Code, § 12925(d).) “[I]f the Legislature had intended to include public agencies in the definition of parties who may be liable as ‘persons’ under section 12925, subdivision (d), it would have expressly done so.” (Vernon v. State of California (2004) 116 Cal.App.4th 114, 132.) Therefore, the ninth cause of action fails against the County.

e. Common Law Claims

“Except as otherwise provided by statute . . . [a] public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person.” (Code Civ. Proc., § 815(a).) “[S]ection 815 abolishes common law tort liability for public entities.” (Miklosy v. Regents of University of California (2008) 44 Cal.4th 876, 899.) “In other words, direct tort liability of public entities must be based on a specific statute declaring them to be liable . . . .” (Eastburn v. Regional Fire Protection Authority (2003) 31 Cal.4th 1175, 1183.)

Here, Plaintiff’s claims for intentional and negligent infliction of emotional distress are common law claims, and Plaintiff has no legal authority suggesting otherwise. Therefore, the twelfth and thirteenth causes of action fail against the County.

f. Unlawful Discharge

Plaintiff’s fourteenth cause of action is for unlawful discharge under Government Code section 12940(a). Section 12940(a) prohibits discrimination against someone based on a protected characteristic. Plaintiff already asserts discrimination elsewhere in her complaint, rendering this claim duplicative.

Plaintiff argues that the damages for unlawful discharge are distinct from the damages for other forms of discrimination. Even if that is true, Plaintiff can obtain those various damages from her existing discrimination claims. As Defendants point out, termination is one of the adverse employment actions incorporated into the discrimination claims. Plaintiff cites no authority supporting separate causes of action for each adverse employment action. It is duplicative to assert another discrimination claim based on the same facts under a different label. Therefore, the fourteenth cause of action fails.

II. Motion to Strike

            “Notwithstanding any other provision of law, a public entity is not liable for damages awarded under Section 3294 of the Civil Code or other damages imposed primarily for the sake of example and by way of punishing the defendant.” (Gov. Code, § 818.) Therefore, the County cannot be liable for punitive damages.

            Plaintiff’s opposition references mandatory duties. This appears to be a reference to Government Code section 815.6, which imposes liability on a public entity for injuries caused by the entity’s violation of a mandatory duty derived from statute. Plaintiff cites no authority for the proposition that the mandatory duty exception to government immunity allows a government entity to be liable for punitive damages. Government Code section 818 expressly precludes punitive damages against a public entity “notwithstanding any other provision of law.” This means that no law can make a public entity liable for punitive damages, including Section 815.6 or any other law imposing liability based on mandatory duties.

CONCLUSION

            Defendants’ demurrer is SUSTAINED as set forth above. The motion to strike punitive damages is GRANTED as to the County.