Judge Elaine W. Mandel, Case Number: 23SMCV05347, Date: 2025-02-04 Tentative Ruling

Judge: Elaine W. Mandel, Case: 23SMCV05347, Date: 2025-02-04 Tentative Ruling

Case Number: 23SMCV05347 Hearing Date: February 4, 2025 Dept: P

Tentative Ruling

Hall v. Ojeda, Case no. 23SMCV05347

Hearing date February 4, 2025

Defendant Ojeda’s Demurrer to the SAC

Defendant Regents’ Demurrer to the SAC

Plaintiff Hall sues defendants Ojeda, S-F Global Holding, Inc. and the Regents of the University of California, alleging hostile work environment, failure to pay minimum wage and unfair business practice claims arising from plaintiff's simultaneous employment with defendants S-F and Regents. Plaintiff alleges a coworker sent her offensive adult images, and defendant Ojeda, plaintiff’s supervisor, failed to take appropriate action. Plaintiff separately alleges underpayment by defendants S-F and Regents. Plaintiff previously amended the complaint twice. Regents and Ojeda each demurs to the SAC.

“The function of a demurrer is to test the sufficiency of the complaint as a matter of law.” Holiday Matinee, Inc. v. Rambus, Inc. (2004) 118 Cal.App.4th 1413, 1420. A complaint “is sufficient if it alleges ultimate rather than evidentiary facts” Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550, but plaintiff must set forth the essential facts of the case “with reasonable precision and with particularity sufficient to acquaint [the] defendant with the nature, source and extent” of the plaintiff’s claim. Doheny Park Terrace Homeowners Ass’n., Inc. v. Truck Ins. Exchange (2005) 132 Cal.App.4th 1076, 1099. In reviewing the legal sufficiency of a complaint against a demurrer, a court will treat the demurrer as admitting all material facts properly pleaded. Blank v. Kirwan (1985) 39 Cal.3d 311, 318; C & H Foods Co. v. Hartford Ins. Co. (1984) 163 Cal.App.3d 1055, 1062.

Defendant Ojeda’s Demurrer to the SAC

Ojeda demurs to the first COA for hostile work environment. To establish a prima facie case of a hostile work environment, plaintiff must show (1) plaintiff is a member of a protected class; (2) plaintiff was subjected to unwelcome harassment; (3) the harassment was based on plaintiff’s protected status; (4) the harassment unreasonably interfered with plaintiff’s work performance by creating an intimidating, hostile or offensive work environment; and (5) defendants are liable for the harassment.” Thompson v. City of Monrovia (2010) 186 Cal.App.4th 860, 876. The harassing conduct must be severe or pervasive. See CACI 2521A.

Plaintiff alleges: “While working with HINOJOSA OJEDA, on or about October 23, 2021, Plaintiff suffered harassment in the form of unsolicited adult pictures and links sent to her and RAUL HINOJOSA OJEDA via WhatsApp from coworker Jose Luis Solorsano.” SAC para. 18. Ojeda argues conduct must be pervasive, and a single act cannot satisfy this requirement. This is incorrect; “[a] single incident of harassing conduct is sufficient to create a triable issue.” Cal. Gov. Code §12923(b).

Ojeda argues the adult imagery plaintiff received was also sent to him, a male, so plaintiff cannot establish she was subject to harassment on account of her sex. See Guthrey v. State of California (1998) 63 Cal. App. 4th 1108, 1123. Plaintiff argues even if the alleged harassment was not targeted, it can nevertheless result in a hostile work environment claim if it occurred in her presence. See Lyle v. Warner Bros. Television Prods. (2006) 38 Cal. 4th 264, 284. This is insufficient; plaintiff must allege a nexus between the alleged harassment and plaintiff’s protected status. Thompson, supra; Thomas v. Regents of University of California (2023) 97 Cal.App.5th 587, 613-614. SUSTAINED with leave to amend.

Plaintiff generally alleges she was not paid in a timely manner and was underpaid as a result of her sex. SAC paras. 17, 22, 36. Ojeda argues plaintiff’s allegations demonstrate the alleged harassment did not unreasonably interfere with plaintiff’s work performance or create an intimidating environment as required by Thompson, supra.

Plaintiff alleges she was forced to resign as a result of the alleged pay harassment. SAC para. 22. This constitutes unreasonable interreference with her work. Plaintiff alleges the lack of pay stemmed from her gender and contributed to a hostile and abusive environment. SAC paras. 33-34. This is sufficient to survive demurrer. OVERRULED.

Defendant Regents’ Demurrer to the SAC

Regents demur to COAs 1-3 and 5 of the SAC arguing each COA fails to state a claim as a matter of law.

Regents demur to the first COA for hostile work environment. The demurrer is duplicative of Ojeda’s. See the court’s previous reasoning. Plaintiff’s first COA is not sufficiently pled. SUSTAINED with leave to amend.

Regents demur to the second COA for retaliation. “(I)n order to establish a prima facie case of retaliation under the FEHA, a plaintiff must show (1) he or she engaged in a ‘protected activity,’ (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer’s action.” Yanowitz v. L’Oreal USA Inc. (2005) 36 Cal.4th 1028, 1042.

Plaintiff alleges she engaged in protected activity by complaining to Ojeda about the alleged harassment. SAC para. 19. Plaintiff fails to allege whether her complaint was in the course and scope of her employment with Regents or S-F or whether the complaint concerned an agent of Regents. The only complaint alleged concerning plaintiff’s employment with Regents is that plaintiff “made numerous complaints regarding her unpaid and underpaid wages[.]” SAC para. 17. Such complaints do not constitute protected activity under FEHA. See Cal. Gove Code §12966. Plaintiff fails to allege a causal nexus between plaintiff’s complaints of sexual harassment and Regents’ termination of plaintiff 19 months later. SAC paras. 19, 21. Conclusory allegations are insufficient absent essential supporting facts. SUSTAINED with leave to amend.

Regents demur to the third COA for failure to pay minimum wage. Regents argue that a claim for failure to pay minimum wage is not recoverable against a public entity. Indeed, Labor Code §204 does not apply to a public entity. See Sanchez v. Regents of the Univ. of Cal. (2021) 2021 Cal. Super. LEXIS 5288, *8 (holding in part Labor Code §§201, 202, 203, 204, 226, 226.3, and 558 are not specifically made applicable to public employers).

Separately, the Regents argue the allegations are vague. Plaintiff alleges she complained to Ojeda about her wages, but the SAC fails to specify whether such complaints arose from her employment with S-F and/or Regents. SAC paras. 15-16. Plaintiff also alleges she resigned from her position with Ojeda and S-F as a result of failure to pay wages, with no mention of Regents. SAC para. 22. These allegations are insufficient. Plaintiff’s argument that Sanchez is a Superior court case, so not binding, is unavailing. Labor Code §204 relies upon §§1194 and 1197, neither of which is applicable as against Regents. See Gomez v. The Regents (2021) 63 Cal.App.5th 386. The logic of Sanchez, supra, is correct.

Regents demur to the fifth COA for failure to prevent harassment and retaliation. A claim under Cal. Gov. Code §12940(k) requires a demonstration that defendant failed to prevent alleged harassment and retaliation; the Code does not create a standalone tort. See Dickson v. Burke Williams, Inc. (2015) 234 Cal.App.4th 1307, 1315, 1318. Plaintiff’s allegations of harassment are insufficiently pled to establish a nexus between the alleged harassment and plaintiff’s protected class. Plaintiff’s allegations of retaliation are conclusory and vague as to Regents. Absent these showings, the claim for failure to prevent harassment and retaliation is insufficient. SUSTAINED with leave to amend.