Judge Gail Killefer, Case 22STCV19061 2022-10-28 Tentative Ruling

This action arises out of the employment of VJ Hirsch’s (“Plaintiff”) by Defendant Los Angeles Unified School District (“LAUSD”) as a math teacher. Plaintiff alleges that he was hired by LAUSD in November 2003 and has worked for San Fernando High School, Reed Middle School, Mount Gleason Middle School, Van Nuys Middle School, and Roy Romer Middle School.

Plaintiff alleges that from about mid-2019 to the end of 2020, Plaintiff requested certain accommodations from Principal for Reed Middle School, Ms. Robyn Freidman, and Principal of Van Nuys Middle School, Ms. Christina Serrano. Plaintiff alleges he faced adverse employment actions after requesting these accommodations, including an unexpected transfer with a start date on a religious holiday, monitoring of Plaintiff’s classroom, etc. Plaintiff alleges he requested accommodations yet again on March 10, 2021, and after this further request, his requests for transfer and accommodation were ignored and he was asked to clarify the hours he worked. On November 18, 2021, Plaintiff alleges he was provided a cease-and-desist letter by LAUSD and further alleges he was placed in “teacher jail.”

Plaintiff’s operative First Amended Complaint (“FAC”) alleges the following causes of action: (1) discrimination in violation of the Fair Housing Employment Act (“FEHA”), (2) harassment in violation of FEHA, (3) retaliation in violation of FEHA, (4) failure to prevent discrimination, harassment and retaliation in violation of FEHA, (5) failure to provide reasonable accommo-dations in violation of FEHA, (6) failure to engage in a good faith interactive process in violation of FEHA, (7) whistleblower retaliation in violation of California Labor Code § 1102.5, and (8) retaliation in violation of California Labor Code § 98.6.

LAUSD now demurs to each cause of action of the FAC. Plaintiff opposes the motion.

LAUSD requests that the court take judicial notice of the following in support of its demurrer to the FAC:

2. Plaintiff’s responses to LAUSD’s Requests for Admissions, Set One (Exhibit 3)

LAUSD’s request is granted. While LAUSD fails to attach the exhibits to the request, the existence and legal significance of this document is a proper matter for judicial notice. (Evid. Code § 452(h).)

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.)

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.)

LAUSD contends that Plaintiff’s first cause of action is insufficiently pled because the FAC does not plead facts sufficient to state a claim for any of race, gender, or disability discrimination, but rather attempts to allege Plaintiff was part of a “myriad of different protected classes” “in a conclusory fashion.” (Demurrer, 11-12.) In opposition, Plaintiff contends that the first cause of action is sufficiently pled because the FAC alleges that he was a member of a protected class, was subject to discriminatory conduct from Defendants, and suffered adverse employment action as a result of such conduct. (Opposition, 8-9.) In reply, LAUSD correctly contends Plaintiff’s opposition and the FAC include only conclusory language and makes no factual allegations which can be taken as true at this demurrer stage. (Reply, 2-3.)

Here, the court has reviewed the first cause of action of the FAC and finds a dearth of factual allegations as they relate to the elements necessary to show discrimination under FEHA. Plaintiff makes conclusory claims as to the adverse employment actions he allegedly suffered, without mentioning factual allegations regarding these adverse actions. Plaintiff also fails to show factual allegations which may infer a discriminatory motive, beyond conclusory allegations as to “teacher jail” and ambiguous descriptions of his requests. (FAC ¶¶21-23.)

The court finds that the first cause of action is insufficiently pled. The FAC alleges in a conclusory fashion that Plaintiff faced adverse employment actions and allegedly was placed in “teacher jail” because of his disability and requests for accommodation. Thus, the FAC insufficiently pleads a claim for discrimination because it does not allege with sufficient facts that Plaintiff faced adverse actions because of his role as a member of a protected class. Although the FAC alleges that Plaintiff faced several alleged adverse actions because of a variety of potentially applicable reasons, such allegations are insufficient to allege that these reasons were a substantial factor in any adverse actions.

For these reasons, LAUSD’s demurrer to the first cause of action is sustained.

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)¿Moreover, Gov. Code § 12923(b) provides: “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.”

LAUSD contends that the second cause of action is insufficiently pled because the FAC does not sufficiently allege any harassing conduct that was severe and pervasive. (Demurrer, 12-13.)

In opposition, Plaintiff again makes conclusory claims and cites to supporting authorities regarding an inference into a hostile work environment, again without pointing to specific factual allegations as to how a hostile work environment can be inferred here. (Opposition, 9-11.)

As discussed above, the FAC only reiterates conclusory and expansive claims regarding alleged harassment Plaintiff faced without any regard to the elements needed to show FEHA harassment.

The court finds the second cause of action insufficiently pled. Although the FAC sufficiently alleges that Plaintiff was subjectively offended by the conduct, the FAC alleges in a conclusory fashion that LAUSD’s conduct constituted harassment for a variety of reasons. Such allegations are insufficient to allege that LAUSD’s allegedly harassing conduct was a substantial factor in causing harm to Plaintiff.

For these reasons, LAUSD’s demurrer to the second cause of action is sustained.

Courts employ the same burden-shifting analysis for claims of retaliation under the FEHA as they do for claims of discrimination. (Yanowitz, supra, 36 Cal.4th at p. 1042.) Thus, once the employee establishes a prima facie case of retaliation, the burden shifts to the employer to provide a legitimate, nonretaliatory reason for its action. If the employer sustains its burden, the presumption of retaliation disappears, and the burden shifts back to the employee to prove intentional retaliation. (Ibid.) A prima facie case of retaliation under the FEHA consists of the following elements: (1) the plaintiff engaged in a protected activity, (2) the employer subjected the plaintiff to an adverse employment action, and (3) a causal link existed between the protected activity and the employer’s action. (Ibid.)

LAUSD again contends that the third cause of action is insufficiently pled because the FAC is devoid of facts to suggest that Plaintiff suffered adverse employment action as a result of engaging in any protected activity or due to any retaliatory animus. (Demurrer, 13-14.) In opposition, Plaintiff again contends that the third cause of action is sufficiently pled through conclusory claims. (Opposition, 7-12.)

The court finds the third cause of action insufficiently pled. It is unclear from the face of the FAC which protected actions Plaintiff alleges he engaged in and was subject to adverse employment action as a result of. As discussed above, the allegations in support of the third cause of action state in a general fashion that Plaintiff engaged in protected activity in a conclusory fashion and, that Plaintiff faced adverse actions for a variety of reasons which may be actionable under FEHA. However, such allegations are insufficient to allege a causal connection between Plaintiff’s protected conduct and adverse employment action as required for a retaliation cause of action.

For these reasons, LAUSD’s demurrer to the third cause of action is sustained.

D. Fourth Cause of Action: Failure to Prevent Discrimination, Harassment and Retaliation under FEHA

The fourth cause of action is for failure to provide an environment free from discrimination and retaliation under Government Code section 12940. (Gov. Code § 12940(k).) “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.)

LAUSD contends that the fourth cause of action of the FAC fails because each of the first three causes of action are insufficiently pled. (Demurrer, 16.) It is undisputed that the fourth cause of action is dependent on the first three causes of action. (Opp., 12.)

The court agrees with LAUSD. LAUSD’s demurrer to the fourth cause of action is sustained.

E. Fifth & Sixth Causes of Action: Failure to Provide Reasonable Accommodation under FEHA, Failure to Engage in Interactive Process under FEHA

LAUSD contends that the fifth and sixth causes of action are insufficiently pled because the FAC alleges “in a conclusory fashion that [Plaintiff] requested accommodations for a myriad of alleged disabilities and that these requests were ignored,” as well as LAUSD did engage in the interactive process with Plaintiff as he “met with the reasonable accommodation committee and that the committee produced a transcript of the interactive process in or about March 11, 2021.” (Demurrer, 15-15; citing FAC ¶ 20.) In opposition, Plaintiff contends the FAC is sufficiently pled as it shows Plaintiff’s “accommodations were still not granted and the process was far from interactive and again as alleged a failed and minimalistic effort by LAUSD.” (Opp., 11-12.)

As discussed above, the court finds that the FAC is insufficiently pled as to the first four causes of action due to the conclusory claims made by Plaintiff as to each claim. As Plaintiff in his opposition fails to point to specific factual allegations in the FAC which may show the elements for the fifth and sixth causes of action, LAUSD’s demurrer to the fifth and sixth causes of action is sustained.

I. Seventh & Eighth Causes of Action: Retaliation in violation of Labor Code §§ 98.6 and 1102.5

Labor Code § 98.6(a) provides: “[a] person shall not discharge an employee or in any manner discriminate, retaliate, or take any adverse action against any employee or applicant for employment because the employee or applicant engaged in any conduct” described as protected under this section. Further, Labor Code § 1102.5(a) mandates that an employer “shall not” made any “rule, regulation, or policy” preventing an employee from reporting a potential violation of “state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation” The employer shall also not retaliate against an employee because the employer “believes that the employee disclosed or may disclose” such information. (Labor Code § 1102.5, (b).)

Defendant contends that Plaintiff’s labor code causes of action are insufficiently pled as they do not comply with the Government Claims act. (Demurrer, 16-17.) LAUSD contends “Plaintiff’s submitted Government Claim only references facts related to FEHA retaliation, discrimination, and harassment—and not any facts related to his labor code violation causes of action.” (Id.)

In opposition, Plaintiff misstates the holding in Shoemaker v. Myers (1992) 2 Cal. App. 4th 1407, 1425-26 to suggest Plaintiff “as a lay person and not a licensed and practicing attorney need not draft and file a formal complaint within his Governmental Claim and simply needs to put the government on notice, which Plaintiff indubitably has done so here.” (Opp., 12-13.) However, Plaintiff fails to point to any supporting authority for the contention that the filing of this complaint before this court can now act as notice under the Government Claims Act due to Plaintiff not being a licensed attorney.

As part of the FAC, Plaintiff alleges he “has satisfied his administrative prerequisites with respect to ... all related [FEHA] filings.” (FAC ¶9.) However, Plaintiff fails to allege sufficient factual allegations to show compliance with the Governmental Claims Act to bring this action against a public entity.

Prior to filing a suit against a public entity, a plaintiff must comply with the Government Tort Claims Act, which states, in part: “no suit for money or damages may be brought against a public entity on a cause of action for which a claim is required to be presented . . . until a written claim therefor has been presented to the public entity and has been acted upon by the board, or has been deemed to have been rejected by the board . . .”¿ (Gov. Code § 945.4)¿

A claim for death or injury to person or personal property shall be presented not later than six months after the accrual of the cause of action.¿ (Gov. Code § 911.2(a).)¿However, a claim “relating to any other cause of action” “shall be presented as provided in Article 2 (commencing with Section 915) not later than one year after the accrual of the cause of action.” (Id.) When a claim required to be presented pursuant to Gov. Code § 911.2(a) is not presented within that time, a written application may be made to the public entity for leave to present that claim.¿ (Gov. Code § 911.4(a).)¿ The application shall be presented to the public entity within a reasonable time not to exceed one year after the accrual of the cause of action and shall state the reason for the delay in presenting the claim.¿ The proposed claim shall be attached to the application.¿ (Gov. Code § 911.4(b).)¿The application is required to include information from the categories delineated in Gov. Code § 910.

The claim presentation requirement is “is not merely procedural but is a condition precedent to maintaining a cause of action and, thus, is an element of the plaintiff's cause of action.” (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1236.) A party suing a public entity must allege compliance with this requirement, or that a recognized exception exists. (Gong v. City of Rosemead (2014) 226 Cal.App.4th 363, 374. A party may allege compliance with this requirement by including a general allegation that “he or she timely complied.” (Id.) “If the plaintiff fails to include the necessary allegations, the complaint is subject to attack by demurrer.” (Id.)

Liberally construing the allegations of the Complaint in favor of Plaintiff, the court finds the Plaintiff has failed to show compliance with the Government Tort Claims Act. As Defendant’s demurrer shows, Plaintiff has not shown he has provided notice to the public entity, within one year of the causes of action accruing, of the claims of whistleblower retaliation stated in the FAC. Therefore, the court finds the seventh and eighth causes of action to be insufficiently pled.

For these reasons, Defendant’s demurrer is sustained as to the seventh and eighth causes of action.

[1] LAUSD submit the declaration of their counsel, Anthony J. Bejarano (“Bejarano”), in support of the instant demurrer. Bejarano attaches as “Exhibit 1” the correspondence between counsel regarding the issues raised in this demurrer. (Bejarano Decl. ¶4, Exh. 1) The court ordinarily expects the parties to meet and confer telephonically prior to filing a demurrer and motion to strike. However, the court finds that in this instance, the Bejarano Declaration is sufficient for purposes of CCP §§ 430.41 and 435.5.