Judge Gail Killefer, Case 20STCV05478 2023-01-27 Tentative Ruling

MOTION: Defendants’ Demurrer to the Second Amended Complaint; Defendants’ Motion to Strike Portions of Second Amended Complaint

MOVING PARTIES: Defendants, Board of Trustee of the California State University, erroneously sued as California State University Long Beach, Jeff Klaus, Ken Kelly, Claudia Plaza, and Carmen Taylor

TENTATIVE: Defendants’ demurrer is sustained. Plaintiff is granted 20 days leave to amend. Defendants are to give notice.

This action arises out of the employment of Pamela Rayburn (“Plaintiff”) by Defendant Board of Trustee of the California State University (“CSU”) at the California State University Long Beach (“CSULB”) campus. Plaintiff was hired on May 23, 2006 as an Office Administrative Assistant in CSULB’s Club Sports Department. Plaintiff alleges she was denied promotions during her employment.

Following a grievance settlement filed with CSU, Plaintiff was promoted to a Student Services Professional II Coordinator with CSULB’s Women’s and Gender Equity Center. After Plaintiff’s supervisor at the Center left, Plaintiff alleges she assumed more responsibilities above her position, and at the urging of Defendant Jeff Klaus (“Klaus”), on January 4, 2017, Plaintiff submitted a memorandum requesting reclassification due to increased job responsibilities. Plaintiff alleges Defendant Claudia Plaza (“Plaza”), head of Human Resources for the Department of Student Affairs, wrongly denied Plaintiff the reclassification. Plaintiff alleges Plaza worked in cooperation with Defendants Ken Kelly (“Kelly”), Klaus, Carmen Taylor (“Taylor”), and others to harass Plaintiff. Plaintiff also alleges that Defendants systematically attempted to prevent Plaintiff from promotions, pay raises, and career advancement as part of a “Harassment Scheme.”

Plaintiff’s operative Second Amended Complaint (“SAC”) alleges the following causes of action: (1) retaliation in violation of the Fair Employment and Housing Act (“FEHA”)—CSU, (2) failure to prevent retaliation in violation of FEHA—CSU, (3) gender discrimination—CSU, (7) age discrimination—CSU, (8) race discrimination—CSU, (9) hostile work environment harassment, and (10) fraudulent concealment—Plaza. Plaintiff’s SAC numbers the causes of action accordingly, and the court has maintained Plaintiff’s numbering for clarity.

Defendants now demur to each cause of action of the SAC and move to strike portions of the SAC. Plaintiff opposes both motions.

Defendants request that the court take judicial notice of the following in support of their demurrer:

1. DFEH’s response to Defendants’ California Public Records Act request no. 202004-02222903, which includes Plaintiff PAMELA RAYBURN’s Complaint of Employment Discrimination before the State of California Department of Fair Employment and Housing, dated July 30, 2019, DFEH No. 201907-07025730 (Exhibit A).

2. Plaintiff’s Amended Complaint of Employment Discrimination before the State of California Department of Fair Employment and Housing, dated May 27, 2020, DFEH No. 201907-07025730 (Exhibit B)

Defendants’ request is granted. The existence and legal significance of these documents is a proper matter for judicial notice. (Evid. Code § 452(h).) However, the court may not take judicial notice of the truth of the contents of the documents. (Herrera v. Deutsche Bank National Trust Co. (2011) 196 Cal.App.4th 1366, 1375.) Documents are only judicially noticeable to show their existence and what orders were made. The truth of the facts and findings within the documents are not judicially noticeable. (Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 885.)

Here, Defendants submit objections to the evidence and declaration submitted by Plaintiff in opposition to the demurrer and motion to strike. However, the filed objections do not follow the proper procedure pursuant to CRC Rule 3.1354(b). The court therefore does not consider the objections.

A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice. (CCP § 430.30(a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The purpose of a demurrer is to challenge the sufficiency of a pleading “by raising questions of law.” (Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.) The court “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. . . .” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525 (Berkley).) “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” (CCP § 452; see also Stevens v. Sup. Ct. (1999) 75 Cal.App.4th 594, 601.) “When a court evaluates a complaint, the plaintiff is entitled to reasonable inferences from the facts pled.” (Duval v. Board of Trustees (2001) 93 Cal.App.4th 902, 906.)

The general rule is that the plaintiff need only allege ultimate facts, not evidentiary facts. (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550.) “All that is required of a plaintiff, as a matter of pleading, even as against a special demurrer, is that his complaint set forth the essential facts of the case with reasonable precision and with sufficient particularity to acquaint the defendant with the nature, source and extent of his cause of action.” (Rannard v. Lockheed Aircraft Corp. (1945) 26 Cal.2d 149, 156-157.) “[D]emurrers for uncertainty are disfavored and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.” (Mahan v. Charles W. Chan Ins. Agency, Inc. (2017) 14 Cal.App.5th 841, 848, fn. 3 (Mahan), citing Lickiss v. Fin. Indus. Regulatory Auth. (2012) 208 Cal.App.4th 1125, 1135.) In addition, even where a complaint is in some respects uncertain, courts strictly construe a demurrer for uncertainty “because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.)

Demurrers do not lie as to only parts of causes of action where some valid claim is alleged but “must dispose of an entire cause of action to be sustained.” (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119.) “Generally it is an abuse of discretion to sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment.” (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.)

“Exhaustion of administrative remedies is a jurisdictional prerequisite to resort to the courts.”¿ (Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 70.) A civil action must be brought “within one year after the filing of a complaint” with the DFEH.¿ (Gov. Code § 12965.)¿ A DFEH complaint must be filed within one year of the alleged wrongful conduct.¿ (Gov. Code § 12960(d).)¿

A party making an administrative complaint must “set forth the particulars” of the alleged unlawful practices.¿ (Gov. Code § 12960(b).) “After the filing of any complaint alleging facts sufficient to constitute a violation of any of the provisions of this part, the department shall make prompt investigation in connection therewith.”¿ (Gov. Code § 12963.)¿ The purpose of the charge is to supply fair notice of the facts, sufficient to permit investigation.”¿ (Hobson v. Raychem Corp. (1999) 73 Cal.App.4th 614, 630 disapproved of on other grounds by Colmenares v. Braemar Country Club, Inc. (2003) 29 Cal.4th 1019.)¿

Under the continuing violation doctrine, an employer’s allegedly discriminatory acts or failure to eliminate a hostile work environment targeting the protected status of an employee, “is a continuing violation if the employer’s unlawful actions are (1) sufficiently similar in kind—recognizing … that similar kinds of unlawful employer conduct, such as acts of harassment or failures to reasonably accommodate disability, may take a number of different forms [citation]; (2) have occurred with reasonable frequency; (3) and have not acquired a degree of permanence.” (Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, 823 Richards).) “Permanence,” in this context, “should properly be understood to mean the following: that an employer’s statements and actions make clear to a reasonable employee that any further efforts at informal conciliation to obtain reasonable accommodation or end harassment will be futile.” (Ibid.) A plaintiff’s allegations that she suffered numerous distinct acts of discrimination, harassment, or retaliation is alone insufficient to establish that the acts are “sufficiently similar in kind” to constitute a continuing violation. (See Richards, supra, 26 Cal.4th at pp. 823-824.)

Defendants contend that all FEHA causes of action in the SAC fail because Plaintiff has failed to exhaust her administrative remedies and further, the continuing violations doctrine does not apply. (Demurrer, 4-6.) Plaintiff’s DFEH letter is dated July 30, 2019. (Request for Judicial Notice, Ex. A.) Therefore, Defendants contend “only acts occurring after July 30, 2018 may serve as the basis of a timely FEHA claim.” (Dem., 5.) Defendants further contend Plaintiff’s DFEH Complaint included only “scarce particulars,” which cannot now stand to form the basis of her FEHA claims. (Id.; citing Allen v. FedEx Express (C.D. Cal., May 29, 2009, No. CV0803671MMMCWX) 2009 WL 10671023, aff'd (9th Cir. 2010) 405 Fed.Appx. 127 at 10-11.) Further, Defendants contend the continuing violations doctrine does not apply since Plaintiff cannot establish the first element as

“Plaintiff alleges multiple actors, including non-Defendants and even unidentified persons committed the claimed wrongful acts, but it is evident from reviewing the SAC with any level of scrutiny that these alleged actions do not overlap, are temporally disconnected, and/or lack any other factual connection.” (Demurrer, 6.)

Defendants also contend Plaintiff cannot establish the continuing violations doctrine by pointing to an alleged “Harassment Scheme” only supported by “entirely conclusory and speculative” contentions. (Dem., 7; citing SAC ¶¶30-32.)

“There are no facts to show that Plaza was substantially motivated by a FEHA-prohibited animus in initiating the purported scheme; no facts to explain how Plaza is connected to the other individual Defendants or other unidentified persons whose decisions and actions Plaintiff claims were wrongful; no facts to explain why any other person, including any individual Defendant, would have listened to Plaza or abided by her alleged “Harassment Scheme”; no facts to show that any individual Defendant knew Plaintiff had engaged in any FEHA-protected activities, much less to show any of them sought to punish Plaintiff for opposing FEHA-prohibited conduct; and no facts to show any individual Defendant was substantially motivated by any FEHA- prohibited animus to take any alleged actions against Plaintiff.” (Dem., 7-8.)

Here, Defendants further correctly point out Plaintiff has made conclusory allegations regarding “each individual Defendant” acting as “an employee or agent of each other,” who “had knowledge, ratified, directed, and/or approved of each other’s actions.” (Dem., 8, n. 4.) Defendants further contend Plaintiff’s reliance on her non-selection for different promotions cannot establish a continuing violation since “each alleged adverse employment action involves an isolated employment decision.” (Dem., 8; citing Chisolm v. 7-Eleven, Inc. (S.D. Cal. 2019) 383 F.Supp.3d 1032, 1060-61 [citing Morgan v. Regents of University of California, 88 Cal.App.4th 52 (2000)].)

Lastly, Defendants contend if Plaintiff’s allegations do hold water, they stand for the assertion that “her claimed situation had reached a state of permenance before July 30, 2018, thus making the doctrine inapplicable,” as Plaintiff alleges “28 acts of ‘retaliation’ and 25 ‘adverse employment actions’” before July 30, 2018. (Dem., 8-9; citing Jumaane v. City of Los Angeles, 241 Cal.App.4th 1390, 1402 (2015).) Therefore, Defendants contend the remaining sole act, Defendant Kelly’s February 1, 2019 appointment, is insufficient to form the basis for Plaintiff’s FEHA claims. (Dem., 9.)

In opposition, Plaintiff contends all factual allegations, and their inferences, should be assumed as true at this demurrer stage. (Opp., 5-6.) However, the court does not assume the truth of legal contentions and conclusory claims. A “demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the pleading, or the construction of instruments pleaded, or facts impossible in law.” (S. Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732 [internal citations omitted].)

Plaintiff then contends the DFEH Complaints include sufficient facts, pointing to Plaintiff’s checked boxes on the DFEH Complaint form. (Opp., 7.) Plaintiff further contends Defendants “imply” the DFEH Complaint must allege “specific dates of each violation.” (Opp., 8.) However, Plaintiff fails to explain where that inference is gleaned from.

Plaintiff further contends that whether the continuing violation doctrine applies is a question of fact as the elements of the doctrine require a determination by a factfinder, which cannot be done at this demurrer stage. (Opp., 9-10.) However, Plaintiff again fails to explain how the continuing violations doctrine cannot be considered at this demurrer stage.

In the alternative, plaintiff contends the continuing violations doctrine applies because the SAC sufficiently alleges the elements of the doctrine. (Opp., 10-11.) Plaintiff contends that even if the allegations do not support the continuing violations doctrine, the allegations are still admissible as “clearly relevant evidence of discrimination and retaliation by Defendants.” (Opp., 12.)

In reply, Defendants contend the “only acts specific in Plaintiff’s amended DFEH complaint are that she was denied a promotion in February 2019 ... and that in or about October 2017, [Defendant Taylor] supposedly told Plaintiff ... she had been denied an earlier, unspecified promotion because she was a ‘white older woman’...” (Reply, 7-8.) “Defendants do not contend that Plaintiff had to allege the specific dates of every FEHA violation but rather that Plaintiff had to specify the acts themselves, because that is what the law requires.” (Reply, 9.)

Defendants further contend that concluding the application of the continuing violations doctrine to be a question of fact “would eviscerate the purpose of exhausting administrative remedies because any plaintiff could claim the continuing violation doctrine and draw out a meritless lawsuit, escaping from those jurisdictional requirements by later asserting time-barred events, including those not presented in his or her DFEH complaint.” (Reply, 10.) The court agrees. Defendants further cite authority upholding the sustaining of a demurrer where the doctrine’s applicability was decided at the pleading stage. (Id.; citing Acuna v. San Diego Gas & Electric Company (2013) 217 Cal.App.4th 1402, 1414-1417.) Defendants further reiterate their earlier contentions that Plaintiff has failed to establish the applicability of the continuing violations doctrine by failing to show sufficiently similar and frequent patterns of conduct. (Reply, 11-12.)

Liberally construing the allegations of the FAC in favor of Plaintiff, the court finds that the continuing violation doctrines does not apply here. As discussed above, the SAC contains a myriad of conclusory allegations over the course of several years, containing several different decision makers and several individual employment decisions, Defendants and unidentified non-Defendants, all with very few factual allegations which this court can assume to be true at this junction. Thus, the court finds the SAC does not sufficiently allege exhaustion of administrative remedies.

The court therefore sustains Defendants’ demurrer on the basis of the failure to exhaust administrative remedies.

To establish a prima facie case for discrimination under the FEHA, a plaintiff must show that “(1) [she] was a member of a protected class, (2) [she] was qualified for the position [she] sought or was performing competently in the position [she] held, (3) [she] suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some other circumstance suggests discriminatory motive.” (Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 355.) FEHA liability for discrimination requires proof that the discrimination was a substantial factor in an employment decision. (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 232.)

To establish a prima facie case of¿harassment, an employee must show (1) he was an employee; (2)¿he was subjected to unwanted harassing conduct based on her protected status; (3) the harassing conduct was severe or pervasive; (4) a reasonable person in the employee's circumstances would have considered the work environment to be hostile or abusive; (5) he considered the work environment to be hostile or abusive; (6) that a supervisor engaged in the conduct and/or the employer knew or should have¿known of the conduct and failed to take immediate and appropriate corrective action; (7) the employee was harmed; and (8) the conduct was a substantial factor in causing the employee's harm.¿(Thompson v. City of Monrovia¿(2010) 186 Cal.App.4th 860, 876)¿Further, pursuant to Government Code section 12923, subdivision (b), “A single incident of harassing conduct is sufficient to create a triable issue regarding the existence of a hostile work environment if the harassing conduct has unreasonably interfered with the plaintiff’s work performance or created an intimidating, hostile, or offensive working environment.” An actionable claim under section 12940, subdivision (k) is dependent on a claim of actual discrimination: ‘Employers should not be held liable to employees for failure to take necessary steps to prevent such conduct, except where the actions took place and were not prevented.’ [Citation]” (Scotch v. Art Inst. of California (2019) 173 Cal.App.4th 986, 1021.)

Defendants contend the FEHA causes of action are insufficiently pled because the remaining allegations do not constitute facts sufficient to state a claim for any of race, gender, or age discrimination, harassment, or retaliation. (Dem., 10-12.)

“Besides the February 2019 appointment of Kelly, Plaintiff alleges a litany of other alleged wrongful acts. The vast majority of the allegations relate to acts that occurred before July 30, 2018; thus, as explained above, they cannot serve as the basis of any FEHA claim due to exhaustion issues. But more fundamentally, none of the alleged wrongful acts can serve as a basis for a FEHA claim because Plaintiff does not plead facts to state a FEHA violation.” (Dem., 12.)

In opposition, Plaintiff does not support her contentions that the FEHA causes of action are otherwise sufficiently pled based on the remaining factual allegations.

Here, the only remaining, non-time barred allegation of the SAC alleges Defendant Kelly’s appointment as Director of the Women’s Center and her non-selection as the basis for Plaintiff’s retaliation and gender, age, and race discrimination claims. (SAC ¶¶30, 95-98, 103-104.)

The court finds that the FEHA causes of action are insufficiently pled. The SAC alleges that Plaintiff was subject to a “Harassment Scheme.” However, the SAC alleges in a conclusory fashion that Plaintiff’s non-selection and alleged lack of career advancement are the facts sufficient to base such claims. Thus, the SAC insufficiently pleads a claim for discrimination on the basis of a protected class, or retaliation as a result of her protected activities.

For these reasons, Defendants’ demurrer to the FEHA causes of action are sustained.

The elements of an action for fraud based on an omission are: “ ‘(1) the defendant must have concealed or suppressed a material fact, (2) the defendant must have been under a duty to disclose the fact to the plaintiff, (3) the defendant must have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff, (4) the plaintiff must have been unaware of the fact and would not have acted as he did if he had known of the concealed or suppressed fact, and (5) as a result of the concealment or suppression of the fact, the plaintiff must have sustained damage.’” (Boschma v. Home Loan Center, Inc. (2011) 198 Cal.App.4th 230, 248 [quoting Han v. Mirda (2007) 147 Cal.App.4th 740, 748.].)

Fraud must be pled in the complaint specifically. General and conclusory allegations are not sufficient. (Nagy v. Nagy (1989) 210 Cal.App.3d 1262, 1268.) Unlike most causes of action where the “the policy of liberal construction of the pleadings,” fraud requires particularity, that is, “pleading facts which show how, when, where, to whom, and by what means the representations were tendered.” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.) Every element of a fraud cause of action must be alleged both factually and specifically. (Hall v. Department of Adoptions (1975) 47 Cal.App.3d 898, 904; Cooper v. Equity General Insurance (1990) 219 Cal.App.3d 1252, 1262.)

Under the Government Claims Act, a party must present a timely claim for money or damages to a local public entity before suing the local public entity for money or damages. (Gov. Code, §§ 905, 945.4; State v. Superior Court (2004) 32 Cal.4th 1234, 1239.) This provides the public entity with an opportunity to investigate the claim and determine whether it will pay on the claim. (See Roberts v. County of Los Angeles (2009) 175 Cal.App.4th 474, 480.) Such a claim may be presented by delivering or mailing it to the clerk, secretary, or auditor of the public entity, or by mailing it to the governing body at its principal office. (Gov. Code, § 915(a).) A claim is also deemed to be in compliance if it is actually received by the clerk, secretary, auditor, or board of the local public entity. (Gov. Code, §¿915(e)(1).) “[A] cause of action against a public employee or former public employee for injury resulting from an act or omission in the scope of his employment as a public employee is barred if an action against the employing public entity for such injury is barred under Part 3 (commencing with Section 900) of this division or under Chapter 2 (commencing with Section 945) of Part 4 of this division. This section is applicable even though the public entity is immune from liability for the injury.” (Gov. Code, § 950.2.)

Defendants contend that the tenth cause of action is insufficiently pled because the SAC fails to allege that Plaintiff has timely exhausted her administrative remedies since Plaintiff’s claim arose out her employment with CSU. (Dem., 14.) Defendants contend Plaintiff filed her government claim on July 31, 2019, which is untimely since her fraudulent concealment claim accrued in October 2017. (Id.) Further, Defendants contend Plaintiff’s “government claim makes no mention of any act of fraud or concealment; rather, it only alleges discrimination, retaliation, hostile work environment; and/or emotional distress.” (Id.; RJN. Exh. C.) Thus, Defendants contend Plaintiff’s tenth cause of action is similarly barred for failure to exhaust administrative remedies. (Dem., 14-15.)

In opposition, Plaintiff contends the Government Claims act does not apply as Defendant Plaza “acted outside the scope of her employment” and Plaza is sued under the four-year statute of limitations as an individual. (Opp., 12-14.)

In reply, Defendants contend “[i]t is clear that each alleged wrongful act Plaza performed – primarily related to allegedly secretly writing Position Descriptions and sitting on Plaintiff’s application for a promotion and pay raise – was in the scope of her duties as the “head of HR for the Student Affairs Department.” (Reply, 13.)

The court agrees. The SAC points to Plaza’s position with CSU, refers to her alleged personnel decisions, and Plaza’s authority as the basis for the injury underpinning this, and other, causes of action. (SAC ¶¶ 12, 28.)

The court finds the tenth cause of action insufficiently pled because Plaintiff has failed to show a sufficient exhaustion of administrative remedies, as required by the Government Claims Act.

For these reasons, Defendants’ demurrer to the tenth cause of action is sustained.

Defendants’ demurrer is sustained. Plaintiff is granted 20 days leave to amend. Defendants are to give notice.

[1] Defendants submit the declaration of their counsel, Patrick M. Desmond (“Desmond”), in support of the instant demurrers and motions to strike. Desmond attests that on October 11, 2022, counsel sent Plaintiff’s temporary counsel a meet and confer letter outlining the arguments raised in each defendant’s demurrer and motion to strike. (Desmond Decl. ¶ 3, Ex. 2.) The parties agreed to meet and confer telephonically on October 18, 2022; however, the parties failed to come to an agreement. (Desmond Decl. ¶¶ 6-7, Ex. 3.) The Desmond Declaration is sufficient for purposes of CCP §§ 430.41 and 435.5.