Judge: Deirdre Hill, Case: 22TRCV01015, Date: 2023-03-29 Tentative Ruling

Case Number: 22TRCV01015    Hearing Date: March 29, 2023    Dept: M

Hearing Date:                         March 29, 2023

Moving Parties:                      Defendant City of Hermosa Beach

Responding Party:                  Plaintiff Jonathan Cruz

(1)   Demurrer to Complaint

(2)   Motion to Strike

            The court considered the moving, opposition, and reply papers.

RULING

            The demurrer is OVERRULED as to the 1^st through 4^th causes of action.  The motion to strike is DENIED as to striking claims and prayer against defendant Hermosa Beach Police Department and GRANTED as to striking paras. 27 (seeking ancillary order that the public safety department shall also be liable for the amount of the actual damages), 30 (ancillary damages pursuant to CCP §§1090 and 1095), 31 (prejudgment interest), 37 (damages pursuant to CCP §§1090 and 1095), 50 (prejudgment interest), and prayer at paras. 2 (ancillary order) and 17 (prejudgment interest).  Defendant is ordered to file an answer within 20 days.

BACKGROUND

            On October 21, 2022, plaintiff Jonathan Cruz filed a complaint against City of Hermosa Beach and Hermosa Beach Police Department for (1) violation of POBRA, (2) declaratory relief, (3) Labor Code §1102.5, and (4) violation of FEHA – retaliation for engaging in protected activity.

            On January 3, 2023, defendants filed a declaration pursuant to CCP §430.41(a)(2) for an extension of time to file a demurrer.

            On January 17, 2023, plaintiff filed objections to the declaration for an extension.

LEGAL AUTHORITY

Demurrer

“The party against whom a complaint or cross-complaint has been filed may object, by demurrer . . . , to the pleading on any one or more of the following grounds:  . . . . (e) The pleading does not state facts sufficient to constitute a cause of action.  (f) The pleading is uncertain.  As used in this subdivision, ‘uncertain’ include ambiguous and unintelligible. . . .”  CCP §431.10.  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.  “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters.  Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.”  SKF Farms v. Superior Court (1984) 153 Cal. App. 3d 902, 905.  “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 v. Mirda (2007) 147 Cal. App. 4th 740, 747.

Strike

“The court may, upon a motion . . ., or at any time in its discretion, and upon terms it deems proper:  (a) Strike any irrelevant, false, or improper matter inserted in any pleading.  (b) Strike out 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.”  CCP §436(b).

            CCP §431.10 states:  “(a) A material allegation in a pleading is one essential to the claim or defense and which could not be stricken from the pleading without leaving it insufficient as to that claim or defense. 

(b) An immaterial allegation in a pleading is any of the following:  (1) An allegation that is not essential to the statement of a claim or defense.  (2) An allegation that is neither pertinent to nor supported by an otherwise sufficient claim or defense.  (3) A demand for judgment requesting relief not supported by the allegations of the complaint or cross-complaint. 

(c) An ‘immaterial allegation’ means ‘irrelevant matter’ as that term is used in Section 436.”

The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice.  CCP §437.

DISCUSSION

Demurrer

Defendants City of Hermosa Beach and Hermosa Beach Police Department demur to the 1^st through 4^th causes of action in the complaint on the grounds that they fail to allege sufficient facts to constitute a cause of action and are uncertain.

The complaint alleges that the City of Hermosa Beach was the only city in the South Bay to institute a mandatory COVID-19 vaccination policy; therefore, officers from other agencies that routinely worked in the City of Hermosa Beach and/or worked with Hermosa Beach Police Officers to provide aid to various cities did not have to be vaccinated.  Complaint, ¶5.  While plaintiff was employed, after implementation of the vaccination policy, he was routinely tested to determine if he had the COVID virus whereas other vaccinated employees that were vaccinated were not tested and appeared to work in an infected and/or contagious status.  It is believed therefore that there was no good cause for the mandatory vaccination policy.  Id., ¶6.  City Manager Lowenthal dismissed plaintiff, terminating his employment with the City of Hermosa Beach and the Hermosa Beach Police Department.  It is believed that City Manager Lowenthal acted in excess of her authority when she terminated plaintiff’s employment.  Id., ¶7.  Pursuant to Gov. Code §3304, and his due process rights, plaintiff requested an administrative appeal of his dismissal.  Id., ¶8.  Plaintiff believed that he was discriminated against because of his deeply held beliefs that prevented him from getting vaccinated.  Therefore, in response to his termination, and believing that City Manager Lowenthal dismissed plaintiff’s employment even though she had no authority to do so, plaintiff filed a complaint of unlawful discrimination with the DFEH and/or EEOC.  Id., ¶9.  Because plaintiff filed complaints with the DFEH and/or EEOC, defendants refused and continue to refuse to afford him an administrative appeal hearing from his dismissal in violation of his due process rights and his rights under Gov. Code §3304.  Id., ¶10.

As to whether the demurrer and motion to strike were untimely filed, the court finds that plaintiff has not been prejudiced in responding.  Defense counsel reasonably communicated as to a request for an extension and filed a declaration for an extension under CCP §430.41.

            Administrative remedies

Defendant argues that the 1^st and 2^nd causes of action are deficient because plaintiff failed to exhaust his administrative remedies. 

Plaintiff alleges that he has no plain, speedy, or adequate remedy under the law.  Plaintiff has attempted to exhaust all administrative remedies to redress the violation of his right.  Further, pursuant to Gov. Code §3309.5, plaintiff need not pursue any administrative remedy in order to address this problem.  Thus, plaintiff is excused from or has exhausted his administrative remedies.  This court is given initial jurisdiction over this matter pursuant to Gov. Code §3309.5.  Complaint, ¶29.

In opposition, plaintiff argues that exhaustion is not required under POBRA and that such a conclusion is contrary to the plain language of section 3309.5.  Also, plaintiff contends the complaint demonstrates that he did exhaust all available administrative remedies.

Under Gov. Code §3309.5(c), “[t]he superior court shall have initial jurisdiction over any proceeding brought by any public safety officer against any public safety department for alleged violations of this chapter [POBRA].”  “Section 3309.5 was ‘specifically designed to allow an officer to pursue a remedy immediately in the courts for violation of [the rights set forth in POBRA] during the investigation and not be required to wait for judicial review after administrative consideration of those violations.’”  Daugherty v. City and County of San Francisco (2018) 24 Cal. App. 5^th 928, 945 (citing to Mounger v. Gates (1987) 193 Cal. App. 3d 1248,1256).  “’[T]he import of “initial” in section 3309.5 is to remove the defense of failure to exhaust administrative remedies in the event the employee elects to go to court with his claim of [a POBRA] violation.’”  Id. at 945 (citing to Alameida v. State Personnel Bd. (2004) 120 Cal. App. 4^th 46, 54).  “Once punitive action has been taken, the employee can assert violation of the Act as a defense to discipline in the administrative proceedings, or can seek an adjudication in court.”  Alameida, supra at 54.  See also Aguilar v. Johnson (1988) 202 Cal. App. 3d 241 (as is the case under Gov. Code §3300, et seq., where there is a clear mandatory statutory duty, no demand to act is necessary before seeking court relief).

The court finds that plaintiff has sufficiently alleged that under Gov. Code §3309.5, plaintiff is not required to exhaust his administrative remedies and that, in any event, defendant failed to provide an administrative appeal.  See also case law, supra.

The demurrer is OVERRULED.

            1^st cause of action for violation of Gov. Code 3300, et seq.

Plaintiff alleges that after plaintiff exercised his rights under a form of a grievance process; to wit, seeking accommodation under the City’s vaccination policy.  Thereafter, defendants denied plaintiff the accommodation and subjected him to punitive action; to wit, a complete reduction in salary and/or dismissal from employment.  Complaint, ¶21.   Plaintiff cites to Gov. Code §3304(a), which states:  “No public safety officer shall be subjected to punitive action, or denied promotion, or be threatened with any such treatment, because of the lawful exercise of the rights granted under this chapter, or the exercise of any rights under any existing administrative grievance procedure.  Id., ¶20.

Plaintiff further alleges that he had his salary reduced to zero and was dismissed from his employment.  Plaintiff requested but defendant refused to afford an opportunity for an administrative appeal from the punitive action.  Id., ¶23.  Plaintiff cites to Gov. Code §3304(b), which provides, “No punitive action, nor denial of promotion on grounds other than merit, shall be undertaken by any public agency against any public safety officer who has successfully completed the probationary period that may be required by his or her employing agency without providing the public safety officer with an opportunity for administrative appeal.”

            Defendant argues that the 1^st cause of action is uncertain because it contains alleged violations of two separate and distinct primary rights, under Gov. Code §3304(a) and Gov. Code §3304(b), which, defendant asserts, are separate and distinct sections of the same statute and which provide different primary rights within the POBRA.

            In opposition, plaintiff argues that the allegations are not uncertain and that there is no statutory law or case decision that requires that each and every violation of POBRA be pled as separate and distinct causes of action.

            The court finds that the allegations are not so uncertain that defendant cannot reasonably respond.

            The demurrer is OVERRULED.

            2^nd cause of action for declaratory relief re Gov. Code §3300, et seq.

Plaintiff alleges that an actual controversy now exists between defendants and plaintiff concerning officers’ rights under Gov. Code §3300, et seq. including what constitutes retaliation under Gov. Code §3304; and whether defendants, as an employer, must provide an administrative appeal from a complete reduction of salary and/or dismissal from employment.  Plaintiff believes defendants violated his and other officers’ rights and that he/they are entitled to relief under Gov. Code §3309.5.  Id., ¶34.  Plaintiff desires a judicial determination of the officers’ rights and remedies under Gov. Code §3300, et seq. as discussed above, so that he and other officers may know, what if any, relief officers are entitled to when their rights are violated and whether the processes used by defendants will be permitted by the courts or must be modified to fall within compliance of Gov. Code §3300, et seq.  Id., ¶35.  Plaintiff seeks a declaration that his rights, as referenced above, have been violated and that he is entitled to the full relief afforded officers under Gov. Code §3309.5.  Id., ¶36.  Plaintiff requests that the court award damages pursuant to CCP §1090 and §1095.  Id., ¶37.

            Defendant argues that this claim is unintelligible.

            In opposition, plaintiff argues that the allegations are not unintelligible, and that plaintiff alleges an actual controversy concerning officers’ rights under Gov. Code §3300, et seq., including what constitutes retaliation under Gov. Code §3304, and whether defendant, as an employer, must provide an administrative appeal from a complete reduction of salary and/or dismissal from employment. 

            The court finds that the allegations are not uncertain, including not “unintelligible.”

            The demurrer is OVERRULED.

            3^rd cause of action for whistleblower retaliation

Labor Code §1102.5(c) provides that “[a]n employer . . . shall not retaliate against an employee for refusing to participate in an activity that would result in a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation.”

            The elements are (1) defendant was plaintiff s employer; (2) plaintiff disclosed to a person with authority over her, or to an employee with authority to investigate, discover or correct legal violations, a concern that certain illegal activity had occurred; (3) plaintiff had reasonable cause to believe that the information provided was a violation of the law; (4) defendant took adverse employment action against plaintiff; (5) plaintiff s disclosure of the information was a contributing factor in defendant's decision to take adverse employment action against plaintiff; (6) plaintiff was harmed; (7) defendant's conduct was a substantial factor in causing plaintiff s harm.  CACI No. 4603.

            The complaint alleges that plaintiff filed a complaint for unlawful discrimination with the DFEH and/or EEOC, and defendants were aware of this fact.  Complaint, ¶53.  Defendants then retaliated against plaintiff and refused to afford him an opportunity for an administrative appeal of his dismissal because he filed the complaint with the DFEH and/or EEOC.  This retaliation is ongoing as defendants continue to refuse to afford plaintiff an administrative appeal of his dismissal.  Id., ¶54.  Plaintiff complained to defendants about the inappropriate actions and/or retaliation but nothing was done to investigate and/or stop the retaliation.  Id., ¶55.  On April 29, 2022, plaintiff obtained a “right to sue” letter from the DFEH based on a second complaint to the DFEH/EEOC regarding unlawful retaliation in response to his first complaint to the DFEH/EEOC.  Id., ¶56.  Plaintiff’s reporting of unlawful actions/discrimination were motivating factors in defendants’ decision not to provide him an administrative appeal of his dismissal.  Id., ¶57.

            Defendant argues that the allegations are insufficient because plaintiff does not allege when or to whom he disclosed information or a causal link between a protected disclosure and an adverse employment action.

            In opposition, plaintiff argues that he sufficiently alleged the elements.  

            The court finds that plaintiff has sufficiently alleged the elements under Labor Code §1102.5.

            The demurrer is OVERRULED.

            4^th cause of action for retaliation under FEHA

Under California law, to prevail on a cause of action of retaliation under FEHA, the plaintiff must prove:  (1) he was engaged in a protected activity; (2) an adverse employment action, (3) a causal link between the protected activity and adverse employment action.  Jones v. R.J Donovan Correctional Facility (2002) 152 Cal. App. 4th 1367, 1380.

See allegations under the 3^rd cause of action.

Defendant argues that plaintiff fails to allege any protected activity that he engaged in and any causal link that exists between that protected activity and an adverse employment action.  Rather, he alleges that he was retaliated against after his employment with the City ended.

            In opposition, plaintiff argues that he sufficiently alleged the elements and that Gov. Code §12940(h) prohibits an employer from retaliating against “any person,” which plaintiff contends includes former employees.

The court finds that the plaintiff has sufficiently alleged the elements of retaliation under FEHA.  Plaintiff alleges that he engaged in a protected activity (filing a complaint with DFEH and/or EEOC) and that he was then denied an administrative appeal.

The demurrer is OVERRULED.

            Motion to Strike

            Defendants City of Hermosa Beach and Hermosa Beach Police Department request that the court strike all claims and prayers for relief against non-entity Hermosa Beach Police Department and paras. 27 (seeking ancillary order that the public safety department shall also be liable for the amount of the actual damages), 30 (ancillary damages pursuant to CCP §§1090 and 1095), 31 (prejudgment interest), 37 (damages pursuant to CCP §§1090 and 1095), 50 (prejudgment interest), and prayer at paras. 2 (ancillary order for actual damages under Gov. Code §3309.5(e)) and 17 (prejudgment interest).

                        Defendant Hermosa Beach Police Department

            As to all claims and prayers as to Hermosa Beach Police Department, defendants argue that Hermosa Beach Police Department is an improper defendant because it is not an individual entity (but rather a department of the City) and the City rather than the police department employed plaintiff.  In opposition, plaintiff argues that the Hermosa Beach Police Department is a proper party because POBRA provides that public safety departments are liable for violations of POBRA and the HBPD is a public safety department.

            As to whether Hermosa Beach Police Department is not a separate defendant does not appear on the face of the complaint.  Thus, the motion is DENIED as to this request to strike.

                        Actual damages

            As to plaintiff’s request for actual damages under the 1^st and 2^nd causes of action (para. 27 and prayer at para. 2), defendant argues that POBRA provides only extraordinary relief and does not allow recovery of monetary damages, citing to Gales v. Superior Court (1996) 47 Cal. App. 4^th 1596, 1602 (“Nothing contained within section 3309.5 suggests that a police officer may . . . file a civil action seeking a legal remedy of damages (compensatory and punitive) for past injuries, and have a jury determine whether a violation of the [POBRA] occurred . . . .”).  In opposition, plaintiff argues that after the Gales decision, Gov. Code §3309.5 was amended to add subsection (e), which specifically affords officers the relief plaintiff is seeking in para. 27 and prayer at para. 2.  In reply, defendant argues that actual damages are only available upon a finding of “malice” and that plaintiff has not alleged malice.

            Gov. Code §3309.5(e) states in part, “In addition to the extraordinary relief afforded by this chapter, upon a finding by a superior court that a public safety department, its employees, agents, or assigns, with respect to acts taken within the scope of employment, maliciously violated any provision of this chapter with the intent to injure the public safety officer, the public safety department shall, for each and every violation, be liable for a civil penalty not to exceed twenty-five thousand dollars ($25,000) to be awarded to the public safety officer whose right or protection was denied and for reasonable attorney’s fees as may be determined by the court.  If the court so finds, and there is sufficient evidence to establish actual damages suffered by the officer whose right or protection was denied, the public safety department shall also be liable for the amount of actual damages.”  See Riverside Sheriffs’ Assn. v. County of Riverside (2009) 173 Cal. App. 4^th 1410, 1426 (malice “is necessary in order to recover POBRA relief under section 3309.5”).

            The allegations are insufficient to support actual damages, as plaintiff has not alleged “malice.”

            The motion is GRANTED.

                        Prejudgment interest

            As to plaintiff’s allegation (paras. 31 and 50) and prayer at para. 17, for prejudgment interest, defendant argues that the request is improper because Civil Code §3291 “shall not apply to a public entity” and “neither the public entity nor the public employee shall be liable, directly or indirectly, to any person for any interest imposed by this section.”  In opposition, plaintiff asserts that he “understands that the Court should strike these paragraphs.”

            The motion is GRANTED.

                        Mandamus relief

            As to paras. 30 and 37 regarding ancillary damages pursuant to CCP §§1090 and/or 1095, defendant did not make any arguments in the memorandum.  In any event, defendant argues in his opposition, under POBRA the court can award extraordinary relief to remedy violations of POBRA and Labor Code §1102.5 by means of mandamus relief. 

            Defendant did not file a cause of action for writ of mandate, thus, neither CCP §1090 nor §1095 is applicable.  In any event, extraordinary relief is available under POBRA.  See also Complaint, at para. 1.

            The motion is GRANTED.

            Plaintiff is ordered to give notice of the ruling.