Judge Gail Killefer, Case 20STCV40604 2022-08-04 Tentative Ruling

TENTATIVE: Law Office’s demurrer is overruled, except as to the second, third, and sixth causes of action which are sustained. Plaintiff is granted 30 days leave to amend. Law Office is to give notice.

This action arises out of Laura Sermeno’s (“Plaintiff”) employment with Defendant, Law Offices of Ramin R. Younessi. (“Law Office”) Plaintiff alleges that she began employment with Law Office on October 29, 2018 and that from then, one of her coworkers, Pasha Lnu (“Lnu”) began to harass her because of her gender. According to the Complaint, Plaintiff tried to avoid Lnu and report his unwanted advances to her supervisors. Lnu was terminated after Plaintiff reported her complaints, but Plaintiff alleges that she was also wrongfully terminated the following day. The court sustained Defendant’s demurrer to Plaintiff’s original complaint on August 5, 2021, and sustained Defendant’s demurrer to Plaintiff’s Second Amended Complaint on May 10, 2022.

Plaintiff’s operative Third Amended Complaint (“TAC”) alleges the following causes of action: (1) discrimination based on sex in violation of the Fair Employment and Housing Act (“FEHA”), (2) discrimination based on sex in violation of the California Constitution, (3) harassment based on sex in violation of the FEHA, (4) retaliation in violation of the FEHA, (5) failure to prevent discrimination, harassment and retaliation in violation of the FEHA, (6) wrongful termination in violation of public policy.

Law Office now demurs to each cause of action in the TAC. The motion is unopposed.

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, 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.)

Law Office here again contends that each of Plaintiff’s causes of action are insufficiently pled because Plaintiff has failed to demonstrate that she has exhausted her administrative remedies. (Demurrer, 10-11.)

Government Code § 12960 requires an employee bringing a claim to first file an administrative complaint with the Department of Fair Employment and Housing (“DFEH”) within one year of the date the alleged unlawful action occurred. (Gov. Code, § 12960(d).) “The timely filing of an administrative complaint is a prerequisite to the bringing of a civil action for damages under the FEHA.” (Romano v. Rockwell (1996) 14 Cal.4th 479, 492 (Romano).) Furthermore, “the FEHA provides that no complaint for any violation of its provisions may be filed with the Department ‘after the expiration of one year from the date upon which the alleged unlawful practice or refusal to cooperate occurred,’ with an exception for delayed discovery. . . .” (Ibid., emphasis in original.) It is ““plaintiff's burden to plead and prove timely exhaustion of administrative remedies, such as filing a sufficient complaint with [DFEH] and obtaining a right-to-sue letter.”” (Kim v. Konad USA Distribution, Inc. (2014) 226 Cal.App.4th 1336, 1346.)

Here, the TAC again alleges that Plaintiff “has duly exhausted all administrative requirements by filing charges with the Department of Fair Employment and Housing (DFEH) and receiving the requisite right-to-sue notices.” (TAC ¶ 6.) The Complaint also alleges that Plaintiff was wrongfully terminated on December 4, 2018. (TAC ¶ 21.) Previous Complaints filed by Plaintiff stated she had been terminated on November 4, 2018. (SAC ¶ 15.) However, Plaintiff has also now alleged that on “October 19, 2019, [Plaintiff] filed and obtained a Right to Sue Notice.” (TAC ¶22 on p.5, Exh. A.) The Attached Exhibit A shows a Right to Sue Notice from the DFEH in the matter “Sermeno / LAW OFFICES OF RAMIN R. YOUNESSI.” (TAC, Exh. A.)

The court finds that Plaintiff’s Complaint successfully pleads that she has exhausted her administrative remedies. The Complaint, filed October 5, 2020, alleges that Plaintiff was terminated on November 4, 2018, approximately two years prior to her termination. Plaintiff has demonstrated that she filed an administrative complaint with the DFEH within one year and obtained a right-to-sue notice on October 19, 2019.

As to the Third Cause of action specifically, Law Office contends it is insufficiently pled as Plaintiff fails “to allege conduct that is sufficiently severe or pervasive such as to constitute harassment as a matter of law.” (Demurrer, 13-14.) Law Office relies on Miller v. Department of Corrections (2005) 36 Cal.4th 446, 462 to contend the alleged conduct is “merely offensive” and thus, not actionable. (Id.) Law Office contends that the comments made by Vafaei are not actionable as they are not “so humiliating as to fundamentally change the plaintiff’s workplace.” (Id.; citing Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 283.) Lastly, Law Office contends that the alleged conduct at issue was not consistent, or pervasive, but rather “occasional, isolated, sporadic, or trivial,” and should therefore not be considered actionable conduct. (Demurrer, 15; citing Fuentes v. AutoZone, Inc. (2011) 200 Cal.App.4th 1221, 1226.)

The TAC’s Third Cause of Action includes the alleged actionable conduct to be “when [Vafaei] petitioned [Plaintiff] to become her ‘sugar daddy’ and discussed how women aren’t into him because of his looks.” (TAC, 6, ¶15.) While Plaintiff may have alleged an individual instance of harassing conduct, Plaintiff has again failed to allege sufficient facts to show a pervasive or severe pattern of harassing conduct as her Third Cause of Action.

For these reasons, Law Office’s demurrer is overruled, except as to the third cause of action which is sustained.

b. Second Cause of Action: Discrimination on the basis of Sex in Violation of the California Constitution

Here, Law Office again contends that Plaintiff’s second cause of action fails to state a recognized claim. (Demurrer, 12-13.) Law Office first contends that “an alleged violation of a Constitutional right does not support a cause of action for monetary damages in the absence of a statutory provision or an established common law tort authorizing such damage remedy for the constitutional violation.” (Id.; citing Katzberg v. Regents of University of California (2002) 29 Cal.4th 300, 312; Degrassi v. Cook (2002) 29 Cal.4th 333, 335.) However, courts have affirmed "a 'claim brought directly under Article I,§ 8 of the California Constitution may only be brought where a plaintiff has been denied entrance into a profession or particular employment or terminated from the same."' Strother v. Southern Cal. Permanente Medical Group, 79 F.3d 859, 871 (9th Cir.1996). See also Himaka v. Buddhist Churches of Am., 919 F.Supp. 332,335 (N.D.Cal.1995); Simpson v. Martin, Ryan, Andrada & Lifter, 1997 WL 542701, * 4 (N.D.Cal.1997) ("Article I, section 8, however, does not create a private cause of action to redress private employment discrimination that does not result in termination"). (Madison v. Motion Picture Set Painters and Sign Writers Local 729 (C.D. Cal. 2000) 132 F.Supp.2d 1244, 1255-1256.) As such, since Plaintiff alleges she was terminated on November 4, 2018, Plaintiff may be justified in seeking a private cause of action based on this specific constitutional violation. (TAC ¶21.)

Second, Law Office contends Plaintiff has not alleged facts to show she was terminated on the basis of her sex. (Demurrer, 13.) Rather, Law Office points out that the TAC "specifically state that she was terminated in retaliation for complaining about sexual harassment." (Id.; TAC ¶21.)

The court again finds Plaintiff’s TAC fails to plead sufficient facts to show a private action for violation of Article 1, section 8 of the California Constitution, as Plaintiff again fails to allege sufficient facts to show how she faced termination on the basis of her sex. For these reasons, Law Office's demurrer is sustained as to the second cause of action.

c. Sixth Cause of Action: Wrongful Termination in Violation of Public Policy

Finally, Law Office again argues that to the extent Plaintiff pled a claim for wrongful termination in violation of public policy, such a claim is insufficiently pled because it only includes conclusory allegations, and the TAC includes no facts in support of such a claim. (Demurrer, 15-16.)

Here, the TAC again fails to allege sufficient facts and merely makes conclusory allegations regarding how her termination was wrongful and violated California public policy. For these reasons, Law Office's demurrer is sustained as to the sixth cause of action.

Law Office’s demurrer is overruled, except as to the second, third, and sixth causes of action which are sustained. Plaintiff is granted 30 days leave to amend. Law Office is to give notice.

[1] Law Office submits the declaration of its counsel, Jason J. Buccat (“Buccat”) to demonstrate compliance with statutory meet and confer requirements. Buccat attests that prior to filing the demurrer, he called and spoke with Plaintiff’s counsel to meet and confer on July 11, 2022. (Buccat Decl. ¶ 5.) Buccat attests Plaintiff’s counsel has yet to provide the exhaustion of administrative remedies as requested. (Buccat Decl. ¶ 6.) The Buccat Declaration is sufficient for purposes of CCP §§ 430.41 and 435.5.