Judge Gail Killefer, Case 22STCV19061 2023-02-08 Tentative Ruling

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

This action arises out of the employment of VJ Hirsch (“Plaintiff”) with 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 the 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 were ignored, Plaintiff was requested to clarify hours worked, and ignored Plaintiff’s requests for accommodation. 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 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 accommodations 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.

On October 28, 2022, Defendant’s demurrer was sustained to the entirety of the First Amended Complaint and Plaintiff was granted leave to amend.

On November 28, 2022, Plaintiff filed the operative Second Amended Complaint (“SAC”) alleging identical causes of action.

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

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

1. Defendant’s Demurrer to the First Amended Complaint, including Plaintiff’s opposition to the Demurrer, LAUSD’s reply to Plaintiff’s opposition to the Demurrer, and Ruling on Demurrer to First Amended Complaint. (Exhibit A).

LAUSD’s request is granted. The existence and legal significance of this court’s own records and docket is a proper matter for judicial notice. (Evidence 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 again contends that Plaintiff’s first cause of action is insufficiently pled as it “remains nearly identical to how it was defectively pled in the FAC.” (Dem., 12.) Plaintiff again alleges that he was part of a “myriad of different protected classes” “in a conclusory fashion.” (Demurrer, 12.) LAUSD contends even though Plaintiff alleges being a member of several protected classes, “he does not allege sufficient facts that Plaintiff faced adverse action because of being a member of any of protected class [sic].” (Dem., 12.) Further, LAUSD contends no allegations are made with regards to the second and fourth elements: “any unlawful animus with any causal nexus whatsoever to any of these actions he concludes were adverse.” (Id.) “Plaintiff fails to allege any facts that would even allow the court to infer ... that anyone at LAUSD had any discriminatory animus against Plaintiff—let alone that anyone took action against him because of that animus.” (Dem., 13.)

In opposition, Plaintiff again contends that the first cause of action is sufficiently pled because the SAC 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, 8-10.) Plaintiff again contends the SAC alleges “direct evidence” of discrimination and/or retaliation, citing Dejung v. Superior Court (2008), 169 Cal App.4th 533, 550, but again only provides conclusory statements to that effect—arguing the SAC alleges “multiple adverse employment actions” without pointing to factual allegations that would support the assertion that such actions grew “in severity” after any requests were made. (Opp., 10; citing SAC ¶¶17-25 [incorrectly labeled as FAC].)

In reply, LAUSD again correctly contends Plaintiff’s opposition and the SAC include only conclusory language and makes no factual allegations which can be taken as true at this demurrer stage. (Reply, 2-4.) “Plaintiff’s SAC and Opposition contains only the conclusion that FEHA violations occurred without even identifying any facts that would properly establish at the pleading stage each element of these statutory causes of action.” (Reply, 3-4.)

The SAC continues to have to same deficiencies as noted by this court in sustaining the demurrer to the FAC. Plaintiff argues he was victim to ostracization and a “campaign to rid Plaintiff,” and then concludes “Plaintiff began experiencing many adverse employment actions;” however, Plaintiff only points to his transfer and the “monitoring” of his classroom as such “adverse actions.” (SAC ¶19.) Plaintiff again 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. (SAC ¶¶ 20-25.)

On October 28, 2022, this court found “a dearth of factual allegations as they relate to the elements necessary to show discrimination under FEHA,” and concluded “Plaintiff makes conclusory claims as to the adverse employment actions he allegedly suffered, without mentioning factual allegations regarding these adverse actions. ... 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.” (October 28, 2022 Order, 4.) The court finds the SAC to be plagued by the same issues.

The court finds that the first cause of action is again insufficiently pled. The SAC continues to make conclusory claims as to adverse actions, and fails to allege sufficient facts to create an inference of discriminatory animus. Although the SAC yet again 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 again 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)¿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.”

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.)

The fourth cause of action is for failure to provide an environment free from discrimination and retaliation under Government Code § 12940. (Gov’t Code, § 12940, subd. (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 remaining FEHA causes of action are also similarly insufficiently pled for failure to plead sufficient factual allegations to show both harassment and retaliation, and/or a failure to both accommodate and engage in the interactive process, as well to prevent harassment. The court agrees for the same reasons as outlined in the first cause of action above. Plaintiff fails to allege sufficient facts to show the actions he faced constituted harassment; sufficient facts to show that the actions done can be inferred to have a retaliatory animus; and further fails to explain how LAUSD failed to accommodate, engage, or prevent harassment. (SAC ¶¶ 42-47, 57-61, 70-72, 83-89, 96-100.)

The court finds the remaining FEHA causes of action insufficiently pled. Plaintiff again asserts the FEHA causes of action are sufficiently pled through conclusory claims; however, the court does not take such conclusory claims as truth at this demurrer stage. (Opp., 6-14; S. Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732.)

For these reasons, LAUSD’s demurrer to the second, third, fourth, fifth, and sixth causes of action are again sustained.

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

Pursuant to Labor Code § 98.6, “[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. (Labor Code § 98.6(a).) Further, pursuant to Labor Code § 1102.5, 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” (Labor Code § 1102.5(a).) 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 again contends that Plaintiff’s labor code causes of action are insufficiently pled as they do not comply with the Government Claims act. (Dem., 18.) LAUSD contends:

“While Plaintiff alleges he complied with the Government Claims Act, a review of his claim demonstrates there are no facts related to either of his causes of actions alleging labor code violations. ... . 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. This failure to allege facts related to his labor code violation causes of action in his Government Claim, doom these causes of action.” (Id.; citing Shoemaker v. Myers (1992) 2 Cal. App. 4th 1407, 1425-26 (Shoemaker).)

In opposition, Plaintiff again misstates the holding in Shoemaker even after this court has already disregarded his proffered reading of the caselaw. (October 28, 2022 Order, 8.) Plaintiff argues that “as a lay person and not a licensed and practicing attorney” he “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.) Plaintiff mischaracterizes the holding of Shoemaker, and indeed the purpose of the Government Claims Act and yet again

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 SAC, Plaintiff again alleges he “has satisfied his administrative prerequisites with respect to ... all related [FEHA] filings.” (SAC ¶ 9.) However, as this court has already noted, Plaintiff fails to allege sufficient factual allegations to show compliance with the Governmental Claims Act to bring this action against a public entity regarding the labor code claims discussed here.

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 yet again finds the Plaintiff has failed to show compliance with the Government Tort Claims Act for his labor code claims. Plaintiff does not evince that 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 SAC. Therefore, the court again finds the seventh and eighth causes of action to be insufficiently pled.

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

LAUSD’s demurrer is sustained. Plaintiff is granted 20 days leave to amend. LAUSD is to give notice.

[1] LAUSD again submit the declaration of their counsel, Anthony J. Bejarano (“Bejarano”) in support of the instant demurrer. Bejarano again attaches as “Exhibit 1” the correspondence between counsel regarding the issues raised in this demurrer. (Bejarano Decl. ¶5, Exh. 1) Again, court ordinarily expects the parties to meet and confer telephonically prior to filing a demurrer and motion to strike. Here, the court finds the Bejarano Declaration is insufficient for purposes of CCP §§ 430.41 and 435.5. However, failure to meet and confer is not grounds for overruling a demurrer, and so the court continues to the merits of the papers.