Judge: Daniel S. Murphy, Case: 24STCV17577, Date: 2025-03-19 Tentative Ruling

Case Number: 24STCV17577    Hearing Date: March 19, 2025    Dept: 32

BACKGROUND

            On July 15, 2024, Plaintiffs Marcos Garcia and Gabriel Jimenez filed this discrimination action against Defendant Whittier Union High School District. Plaintiffs filed the operative First Amended Complaint on December 16, 2024. The FAC asserts causes of action for (1) discrimination, (2) failure to prevent, (3) violation of the California Constitution, (4) violation of Government Code section 11135, (5) violation of the Unruh Act, and (6) violation of 42 U.S.C. § 1983.

            Plaintiffs were male applicants who applied to fill a vacant position on Defendant’s Board of Trustees. Plaintiffs allege that the Board rejected their applications in favor of appointing a female member to the board based solely on sex.

            On February 13, 2025, Defendant filed the instant demurrer to the FAC. Plaintiffs filed their opposition on March 6, 2025. Defendant filed its reply on March 12, 2025.

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.)

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 finds that Defendant has satisfied the meet and confer requirement. (See Sherman Decl.)

DISCUSSION

I. Application of FEHA to Public Appointments

            “In order to recover under the discrimination in employment provisions of the FEHA, the aggrieved plaintiff must be an employee.” (Shephard v. Loyola Marymount Univ. (2002) 102 Cal.App.4th 837, 842.) FEHA defines “employee” as follows: “‘employee’ does not include any individual employed by that person’s parent, spouse, or child or any individual employed under a special license in a nonprofit sheltered workshop or rehabilitation facility.” (Gov. Code, § 12926(c).)

            However, this “does not actually define who is an employee under the FEHA; it merely excludes” certain persons from being considered employees. (Mendoza v. Town of Ross (2005) 128 Cal.App.4th 625, 632.) Therefore, “the FEHA definitional provision is not particularly helpful in determining under what circumstances one may be considered to be an employee for purposes of the FEHA.” (Ibid.) “More helpful is the definition of ‘employee’ contained in regulations enacted by the Department of Fair Employment and Housing.” (Ibid.)

            Under the Department’s definition, an employee is “[a]ny individual under the direction and control of an employer under any appointment or contract of hire or apprenticeship, express or implied, oral or written.” (Cal. Code Regs., tit. 2, § 11008, emphasis added.) “Thus, on its face, the FEHA confers employee status on those individuals who have been appointed.” (Mendoza, supra, 128 Cal.App.4th at p. 633.) The court in Mendoza held that the plaintiff was not appointed to his position merely because his police ID card contained the word “appointed.” (Ibid.) The plaintiff failed to allege that he had actually been appointed to his position by the Town Council, the only entity authorized to make appointments. (Ibid.) 

            Here, Plaintiffs allege that they sought to fill a vacant appointment on the Board of Trustees by applying and appearing before the Board. (FAC ¶¶ 11-16.) Thus, unlike the plaintiff in Mendoza, Plaintiffs here allege that they sought an actual appointment through official procedures. This constitutes an “appointment” as contemplated under the Code of Regulations provisions applying FEHA. Accordingly, the position that Plaintiffs applied for may be considered an “employee” position subject to FEHA.

Defendants point out that under Mendoza, “compensation of some sort is indispensable to the formation of an employment relationship.” (Mendoza, supra, 128 Cal.App.4th at p. 637.) This may be satisfied by “indirect compensation” such as “health insurance, vacation or sick pay.” (Id. at p. 636.) Defendant then concludes that “[n]ot only does the interim board seat confer no benefits, but it also offers only a nominal per diem payment, which cannot be considered sufficient compensation to qualify as employment under FEHA.” (Reply 3:18-20.) However, these are facts that go beyond the four corners of the complaint. For pleading purposes, it may be reasonably inferred that Plaintiffs were employees under “appointment.” (See Cal. Code Regs., tit. 2, § 11008.)     

            Defendant also argues that “public offices including school boards are exempt from FEHA under Government Code section 3540.1.” (Dem. 4:7-8.) Defendant contends that “the seat in question is inherently a public office, not an employment position subject to FEHA.” (Dem. 4:14-15.) Section 3540.1 provides definitions to be used “in this chapter,” referring to Chapter 10.7 of Division 4 of Title 1, which is not FEHA. FEHA is located under Title 2, Division 3, Part 2.8. As pointed out in Mendoza, FEHA utilizes its own definition of “employee.” Defendant cites no authority applying the definitions in Section 3540.1 to FEHA. Defendant then relies on cases interpreting the meaning of “employee” under Education Code section 44113. (See Conn v. Western Placer Unified School Dist. (2010) 186 Cal.App.4th 1163; Hartnett v. Crosier (2012) 205 Cal.App.4th 685.) These similarly have no application to FEHA. As discussed above, FEHA’s definition of “employee” encompasses appointments.

Lastly, even if the Court were to apply Government Code section 3540.1, that section defines “employee” as “a person employed by a public school employer except persons elected by popular vote, persons appointed by the Governor of this state, management employees, and confidential employees.” (Gov. Code, § 3540.1(j).) Plaintiffs do not allege that the position they sought was elected by popular vote, appointed by the Governor, a management position, or a confidential position. Thus, even under Section 3540.1, Plaintiffs could be considered employees, at least for pleading purposes.   

Ultimately, Plaintiffs allege that they were discriminated against in their applications for an appointment, which may be considered an employment position under FEHA. At the very least, the FAC has pled sufficient facts to raise a triable issue. Accordingly, the FEHA claims are actionable.

The demurrer is OVERRULED as to the first and second causes of action.

II. Equal Protection

            Plaintiffs’ third cause of action alleges a violation of Article I, Section 7 of the California Constitution. (FAC ¶ 41.) That provision states that “[a] person may not be deprived of life, liberty, or property without due process of law or denied equal protection of the laws.” (Cal. Const., Art. I, § 7(a).)

            Defendant argues that Plaintiffs “have no constitutionally protected interest in the vacant seat until they are appointed to it.” (Dem. 5:7-8.) Defendant cites no authority for this proposition. Defendant also argues that “the complaint contains no allegations showing that Plaintiffs were treated differently from other applicants” and “even concedes that Plaintiffs were afforded the same opportunity to apply, be considered, and advance as finalists—the same treatment given to all applicants.” (Dem. 5:9-13.) This ignores the allegation that Plaintiffs were rejected based on the Board’s explicit desire to appoint a female to fill the vacant board seat. (See FAC ¶¶ 13-17.) These facts sufficiently raise an inference of discrimination for pleading purposes. Defendant’s characterization of the Board’s comments as nondiscriminatory and taken out of context raises a factual dispute not resolvable on a demurrer. The fact that Plaintiffs made it as finalists along with other applicants does not preclude the possibility that they were discriminated against in the ultimate hiring decision.

            In their opposition, Plaintiffs argue that they have pled sufficient facts to demonstrate a violation of Article I, Section 8, which prohibits discrimination in employment. However, the third cause of action is for violation of Article I, Section 7. If Plaintiffs wish to assert a cause of action under Section 8, they should seek leave to amend.   

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

III. Government Code Section 11135

            “No person in the State of California shall, on the basis of sex, race, color, religion, ancestry, national origin, ethnic group identification, age, mental disability, physical disability, medical condition, genetic information, marital status, or sexual orientation, be unlawfully denied full and equal access to the benefits of, or be unlawfully subjected to discrimination under, any program or activity that is conducted, operated, or administered by the state or by any state agency, is funded directly by the state, or receives any financial assistance from the state.” (Gov. Code, § 11135(a).)

            Defendant argues that Plaintiffs were not denied equal access to a “program or activity” as used in Government Code section 11135. A “program or activity” means “any project, action or procedure undertaken directly by recipients of State support or indirectly by recipients through others by contracts, arrangements or agreements, with respect to the public generally or with respect to any private or public entity.” (Comunidad en Accion v. Los Angeles City Council (2013) 219 Cal.App.4th 1116, 1125.) “Such programs or activities include, but are not limited to, the provisions of employment or goods; the procurement of goods or services; the provision of education, training, health, welfare, rehabilitation, housing, or other services; the provision of cash or loan assistance; or the provision of facilities for furnishing services, financial aid or other benefits.” (Ibid.)

            For pleading purposes, it may be reasonably inferred that Defendant is engaged in “the provision of education” and that appointment to the Board is an “action or procedure.” Thus, by allegedly refusing to appoint Plaintiffs to the Board based on their sex, Defendant arguably “subjected [Plaintiffs] to discrimination under [a] program or activity.” (See Gov. Code, § 11135(a).)

            Defendant points out that only equitable relief is available for a violation of Section 11135. (See Gov. Code, § 11139.) However, Plaintiffs have pled equitable relief, including declaratory and injunctive relief. (SAC, Prayer No. 8.) Defendant’s contention that the requested relief is impractical does not detract from the fact that equitable relief has been alleged, thus supporting a claim under Section 11135. The likelihood that the Court would actually grant the requested relief is not relevant to a demurrer. (See Nolte v. Cedars-Sinai Medical Center (2015) 236 Cal.App.4th 1401, 1406 [“we accept as true even the most improbable alleged facts, and we do not concern ourselves with the plaintiff's ability to prove its factual allegations”].)    

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

IV. Unruh Act

            The Unruh Civil Rights Act provides that “[a]ll persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, sexual orientation, citizenship, primary language, or immigration status are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.” (Civ. Code, § 51(b).)

            The term “business establishments of every kind whatsoever” should be interpreted “in the broadest sense reasonably possible.” (Burks v. Poppy Construction Co. (1962) 57 Cal.2d 463, 468.) Thus, “some entities that would not ordinarily ‘be thought of as … ‘traditional’ business establishment[s]’ should be considered business establishments for purposes of the Unruh Civil Rights Act.” (Brennon B. v. Superior Court (2022) 13 Cal.5th 662, 674.) “In parsing the boundaries of what constitutes a ‘business establishment,’ our cases have focused on attributes—performing business functions, protecting economic value, operating as the functional equivalent of a commercial enterprise, etc.” (Id. at p. 681.) “[A]n entity must effectively operate as a business or a commercial enterprise” (ibid.) or “engage[] in behavior involving sufficient ‘businesslike attributes’” (Carter v. City of Los Angeles (2014) 224 Cal.App.4th 808, 825).

            In Brennon, the Supreme Court held that “public school districts engaged in the work of educating students” did not constitute a “business establishment” under the Unruh Act. (Brennon, supra, 13 Cal.5th at p. 681.) “When acting in their core educational capacity, public school districts do not perform ‘customary business functions,’ nor is their ‘overall function … to protect and enhance … economic value.” (Ibid.) Therefore, “the Unruh Civil Rights Act does not reach public school districts engaged in the provision of a free and public education to students.” (Ibid.)   

            Here, the FAC contains no facts demonstrating that Defendant was acting in a businesslike capacity, as opposed to its “core educational capacity,” in appointing members to the Board. (See Brennon, supra, 13 Cal.5th at p. 681.) The general notion that a school district “operates facilities, contracts with vendors, employs staff, [and] manages budgets” (Opp. 10:7-8) is not sufficient show that Defendant was “operating in a capacity that is the functional equivalent of a commercial enterprise” (see Warfield v. Peninsula Golf & Country Club (1995) 10 Cal.4th 594, 622). There is no indication that Defendant functions like a business by “furnishing goods, services or facilities to its clients, patrons or customers.” (See Stamps v. Superior Court (2006) 136 Cal.App.4th 1441, 1449.) There are no facts suggesting that Defendant is engaged in anything more than “the provision of a free and public education to students.” (See Brennon, supra, 13 Cal.5th at p. 681.) Therefore, Unruh does not apply.   

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

CONCLUSION

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