Judge Gail Killefer, Case Number: 22STCV19061, Date: 2023-09-28 Tentative Ruling

TENTATIVE: Defendant LAUSD’s demurrer to the 4AC is sustained without leave to amend as to the first through fourth causes of action and sustained with leave to amend as to the fifth through eighth causes of action. Defendant’s Motion to strike is denied as moot.

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 LAUSD hired him in November 2003 and that he 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, Robyn Freidman, and the Principal of Van Nuys Middle School, 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 his classroom, etc. Plaintiff alleges he requested accommodations yet again on March 10, 2021, and after this further request, his requests for transfer were ignored, Defendant requested that he clarify the hours he worked, and his requests for accommodation were ignored. 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”) alleged 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 Second Amended Complaint (“SAC”) alleging identical causes of action. On February 8, 2023, Defendant’s demurrer was sustained to the entirety of the SAC and Plaintiff was granted leave to amend.

On February 27, 2023, Plaintiff filed the operative Third Amended Complaint (“TAC”) alleging identical causes of action. On May 3, 2023, the demurrer to the TAC was sustained with leave to amend.

On June 30, 2023, Plaintiff filed the Fourth Amended Complaint (“4AC”) alleging identical causes of action.

LAUSD now demurrers to each cause of action in the 4AC. Plaintiff, acting in pro per, opposes the motion.

The Court may take judicial notice of records of any court of record of the United States. (Evid. Code, § 452(d)(2).) However, the court may only judicially notice the existence of the record, not that its contents are the truth. (Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1565.)

1) LAUSD’s propounded Requests For Admissions, Set Two (including documents to be admitted as genuine) a true and correct copy of which is attached as Exhibit “1” and authenticated by the declaration of Anthony J. Bejarano, submitted concurrently with this Request for Judicial Notice and LAUSD’s demurrer to the Complaint.

2) Plaintiff’s Responses to LAUSD’s Requests For Admissions, Set Two, a true and correct copy of which is attached as Exhibit “2” and authenticated by the declaration of Anthony J. Bejarano, submitted concurrently with this Request for Judicial Notice and LAUSD’s demurrer to the Complaint.

3) Attached as Exhibit “3” are true and correct copies of Declaration of VJ Hirsch dated June 22, 2023.

Defendant LAUSD asserts that the court may take judicial notice of the discovery Requests for Admission and Plaintiff’s Declaration pursuant to Tucker v. Pacific Bell Mobile Services (2012) 208 Cal.App.4th 201, 219, fn. 11, wherein the Appeal Court held that even when ruling on a demurrer “a court may take judicial notice of a party's admissions or concessions in cases where the admission “ ‘cannot reasonably be controverted,’ ” such as in answers to interrogatories or requests for admission, or in affidavits and declarations filed on the party's behalf.”

Discussion

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, subd. (a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)¿“To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged.”¿(C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.)¿For the purpose of testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded.¿ (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.)¿A demurrer “does not admit contentions, deductions or conclusions of fact or law.”¿(Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713.)¿¿

¿Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof. (CCP, § 435(b)(1); CRC, rule 3.1322(b).) The court may, upon a motion or at any time in its discretion and upon terms it deems proper: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (CCP, § 436(a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].)¿¿¿¿

“Where the defect raised by a motion to strike or by demurrer is reasonably capable of cure, leave to amend is routinely and liberally granted to give the plaintiff a chance to cure the defect in question.” (CLD Construction, Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1146.) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.)¿¿¿

The 4AC alleges various instances of unlawful conduct by Defendant LAUSD, including various forced transfers “in June 2017 to Leon Noble Elementary School; August 2019 transfer to Romer Middle School; October 2019 transfer to Van Nuys Middle School (which such transferred occurred on a Jewish Holiday); March 2020 transfer to Mount Gleason Middle School; August 2020 transfer to Reed Middle School; October 2021 transfer to San Fernando High School (which PLAINTIFF had initially applied for a promotion at San Fernando High School and PLAINTIFF was interviewed, selected and slated to begin the position only for it to be curtailed as PLAINTIFF never returned and was reassigned to home before he could begin the position where he currently remains as he awaits his faith..).” (4AC ¶ 30.)

The 4AC also alleges that LAUSD failed to engage in the interactive process and failed to provide Plaintiff with reasonable accommodations for his disabilities across his various transfers. (4AC ¶¶ 17, 19, 21.)

On June 10, 2022, Plaintiff filed this Complaint. Defendant LAUSD now demurs to the entire 4AC.

Defendant LAUSD asserts that pursuant to Government Code § 12965(c)(1)(c), any claims filed in Plaintiff’s May 20, 2020, DFEH Charge are time-barred because Plaintiff failed to file this action within one year after he received the May 21, 2021, right-to-sue letter. (RJN Ex. 1, 2.) In other words, Plaintiff had until May 21, 2022, to file a Complaint for claims asserted in the May 21, 2020, DFEH Charge.

“FEHA claims are governed by two statutory deadlines: section 12960 and section 12965.” (Acuna v. San Diego Gas & Electric Co. (2013) 217 Cal.App.4th 1402, 1411.) On January 1, 2020, the Legislature enlarged the time to file a FEHA claim from one year to three years from the date of the challenged conduct as outlined in Labor Code section 12960. (Ramirez v. Charter Communications, Inc. (2022) 75 Cal.App.5th 365, 374, fn. 3.) However, the second statute of limitations under Government Code section 12965 remains intact. “Section 12965 concerns a separate statutory deadline applicable after the DFEH issues a right-to-sue notice.” (Acuna, supra, 217 Cal.App.4th at p. 1413 [italics original].) Under Government Code section 12965, Plaintiff had one year from the date he received the May 21, 2021, right-to-sue letter to file this action, or else the claims are time-barred unless an exception applies. (Id.)

Pursuant to Defendant’s Request for Admission Nos. 23-27, Plaintiff submitted three DFEH Charges. (RJN Ex. 1, 2.) Plaintiff submitted the first DFEH Charge on May 20, 2020, and received the right-to-sue letter on May 21, 2021. (Id.) Plaintiff submitted a second DFEH Charge on June 29, 2021, and received the right-to-sue letter on those charged on June 2, 2022. (Id.) Plaintiff submitted a third DFEH on May 10, 2022, and received a right-to-sue letter on April 18, 2022. Since Plaintiff filed this action on June 10, 2022, rather than on or before May 21, 2022, Plaintiff’s claims asserted in the May 20, 2020, DFEH Charge are time-barred because Plaintiff failed to file a Complaint related to those charges within one-year of when he received the right-to-sue letter (which was May 21, 2021). (RJN Ex. 1.)

Consequently, Plaintiff’s claims relating to the October 2019 incident wherein he was denied a religious accommodation requesting one day off to observe the Jewish Holiday; subsequent transfer to another school; denial of promotion to School Improvement Grant position (See Complaint ¶ 18); and denial of accommodations in November of 2019 and February 4, 2020; are all time-barred due to Plaintiff’s failure to file a Complaint within one year of receiving the May 21, 2021 DFEH right-to-sue letter. (RJN Ex. 1, 2.)

Defendant LAUSD does not deny that claims asserted in the June 29, 2021, and May 10, 2022, DFEH Charges are timely asserted.

Plaintiff’s June 29, 2021, DFEH Charge alleges only one incident, occurring on “September 21, 2020, through current” related to actual or perceived discrimination in the denial of the good faith interactive process and reasonable accommodations. (RJN Ex. 1, 2.) The May 10, 2022, DFEH Charge alleges incidents related to disability and age discrimination, denial of a promotion, receiving a “ceases and desist” letter preventing Plaintiff from discussing the matter, denial of work opportunities or assignments, reprimands, denial of reasonable accommodation due to disabilities, harassment, and retaliation. (RJN Ex. 1.2.)

To establish a prima facie case for discrimination under the FEHA, a plaintiff must show that” (1) he was a member of a protected class, (2) he was qualified for the position he sought or was performing competently in the position he held, (3) he 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.)

Plaintiff alleges he was “a member of a protected class within the meaning of California Government Code §§ 12940(a), 12926(m) because of PLAINTIFF’s ancestry, religious creed - includes dress and grooming practices, disability (physical or mental), medical condition (cancer or genetic characteristic), other, family care or medical leave (cfra).” (4AC ¶ 40.) Plaintiff’s DFEH Charge alleged disability and age discrimination but fails to specify what physical or mental disability Plaintiff has other than that it falls within the meaning of Government Code § 12926(m).

As to the discrimination Plaintiff suffered, Plaintiff alleges “DEFENDANTS unlawfully discriminated against PLAINTIFF, as previously alleged, on the basis of his ancestry, religious creed - includes dress and grooming practices, disability (physical or mental), medical condition (cancer or genetic characteristic), other, and family care or medical leave (cfra).” (4AC ¶ 41.) Specifically, Defendants discriminated by “denying hire or promotion, reprimanding, suspending, demoting, asking impermissible non-job-related questions, denying any employment benefit or privilege, denying reasonable accommodation for a disability, denying accommodation for religious beliefs, denying work opportunities or assignments, denying and forcing to transfer, denying family care or medical leave (cfra) him amongst other things. As stated above PLAINTIFF requested accommodations numerous times with physician’s notes submitted each and every time. Rather than accommodate PLAINTIFF, not only did DEFENDANTS NOT accommodate PLAINTIFF, but they also continuously transferred PLAINTIFF (including four transfer within a short one year span), failed to accommodate PLAINTIFF, prevented PLAINTIFF from being promoted, stripped PLAINTIFF the ability to teach summer school classes and earned additional income and eventually placed suspended PLAINTIFF further curtailing his ability to move up in his career, career development, teaching summer school and after school tutoring and a host of other opportunities.” (4AC ¶ 42.)

First, a transfer is not an adverse employment action when it is into a comparable position that does not result in substantial and tangible harm.” (McRae v. Department of Corrections & Rehabilitation (2006) 142 Cal.App.4th 377, 393.) The 4AC fails to allege that Plaintiff’s transfers to various schools were demotions or resulted in tangible harm to Plaintiff. As discussed above, Plaintiff’s discrimination claim based on the denial of the School Improvement Grant position in October 2019 is time-barred because Plaintiff presented the claim in his May 20, 2020, DFEH Charge but failed to file a Complaint within one-year. (RJN Ex. 1, 2; 4AC ¶ 18.)

However, Plaintiff also asserts he was denied the Restorative Justice position, a claim timely asserted in his May 20, 2022, DFEH Charge. (4AC ¶ 28; RJN Ex. 1, 2.) Plaintiff alleges he was offered the position, but on November 18, 2021, Plaintiff was reassigned to home where he remains and is unable to obtain any promotions or advance his career. (4AC ¶ 28.) The court agrees that Plaintiff’s denial of a promotion to the Restorative Justice position and reassignment to home constitute an adverse employment action. Nevertheless, Plaintiff fails to allege sufficient facts to establish prima facie case discrimination.

The 4AC alleges Plaintiff is a member of the Jewish religion and was denied a religious accommodation in October 2019. (4AC ¶ 17) This claim is time-barred because Plaintiff presented the claim in his May 20, 2020, DFEH Charge but failed to file a Complaint based on May 20, 2020, DFEH charge within one year of receiving the right-to-sue letter. (RJN Ex. 1, 2.) Plaintiff’s Complaint is otherwise devoid of any other facts to show that Plaintiff was discriminated against by being demoted and sent home due to his religion or ancestry.

Plaintiff alleges that he was denied a reasonable accommodation due to his disability, but Plaintiff fails to allege if the disability was mental or physical and that he was discriminated against based on the unspecified disability. In other words, Plaintiff fails to allege a causal connection between the disability and LAUSD decision to deny Plaintiff a promotion and demote him home. (4AC ¶ 28.) In a conclusory fashion, the 4AC alleges that Principal Friedman was transferred out and Principal Coley took over and denied Plaintiff a promotion because Local Superintendent Andres Chait had “animus towards PLAINTIFF” but the 4AC is silent as to facts that show Mr. Chait and Ms. Coley acted with animus in denying Plaintiff the promotion and demoting him and that said conduct was due to Plaintiff’s role as a member of specific protected classes. The 4AC is similarly devoid of factual allegations to show that Plaintiff suffered adverse employment actions due to his role as a member of a protected class and instead makes only conclusory allegations. (See Interior Systems, Inc. v. Del E. Webb Corp. (1981) 121 Cal.App.3d 312, 316 [legal conclusions without facts are to be disregarded].)

The demurrer to the first cause of action is sustained. As this is Plaintiff’s fourth amended complaint and Plaintiff has yet again failed to make specific factual allegations to support the first cause of action, leave to amend is denied.

To establish a prima facie case of¿harassment, a plaintiff 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)

Plaintiff alleges that he experienced a hostile work environment because he was continuously transferred, denied accommodations, denied promotions, and placed “in teacher jail further curtailing his ability to move up in his career.” (4AC ¶ 53.) All these actions “taken together” “indubitably made the work environment to be hostile or abusive for PLAINTIFF.” (4AC ¶ 53.)

In a conclusory fashion, Plaintiff asserts he is a member of a protected class due to “ancestry, religious creed – includes dress and grooming practices, disability (physical or mental), medical condition (cancer or genetic characteristic), other, family care or medical leave (cfra), including but not limited to, filing complaints, and reporting misconduct and unlawful harassment” (4AC ¶ 52.) These conclusory allegations are devoid of facts that show Plaintiff was subjected to harassment based on his membership in a protected category. The 4AC fails to allege facts to show that the forced transfers were due to Plaintiff’s membership in a protected class and were sufficiently severe or pervasive to constitute actionable harassment. In fact, Plaintiff admits he interviewed for and accepted the position at Reed Middle School, resulting in his transfer, and that he voluntarily transferred to San Fernando High School (4AC ¶¶ 21, 28.) Moreover, as explained in more detail below, Plaintiff also admits that he received accommodations, but Plaintiff considered the accommodations to be insufficient. The 4AC lacks factual allegations regarding comments or actions made by specific LAUSD employees that show that the transfers, denial of accommodations, and promotions were due to Plaintiff’s membership in a protected class.

Accordingly, the court finds that the second cause of action is insufficiently pled and sustains the demurrer to the second cause of action without leave to amend.

To establish a prima facie case of retaliation under FEHA, Plaintiff must prove that “(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 [interna quotations omitted].)

LAUSD alleges that Plaintiff fails to allege a causal connection between “the many adverse actions taken against Plaintiff” and Plaintiff’s engagement in a protected activity. (4AC ¶ 17.) Plaintiff alleges he engaged in the following protected activities: “requesting or using disability related accommodations, requesting or using religious accommodations, requestion of using family care or medical leave (FMLA/CFRA), participating as a witness in a discrimination or harassment complaint, and complaining to DEFENDANTS about inappropriate conduct and activities which PLAINTIFF had reasonable cause to believe were in violation of a state and/or federal law.” (4AC ¶ 66.)

As explained above, Plaintiff’s claim based on the denial of a request for religious accommodation in October 2019 is time-barred. (RJN Ex. 1, 2.) The 4AC fails to state that there were other instances in which Plaintiff requested and was denied religious accommodations after October 2019. The 4AC is also devoid of any facts as to whether Plaintiff was denied family care or medical leave, but asserts he experienced “retaliatory treatment” due to using family care or medical leave without facts as to when and how such retaliation occurred. The 4AC also fails to allege facts as to when Plaintiff participated as a witness in a discrimination complaint and how he experienced retaliation. The 4AC fails to state what inappropriate conduct and activities he reported, to who, and when the reporting occurred.

The 4AC also fails to allege facts to connect Plaintiff’s denial of the Restorative Justice position by Ms. Coley and his reassignment to his home to Plaintiff requests for reasonable accommodations. A temporal causal connection cannot be assumed because Plaintiff does not state when he was offered the Restorative Justice position, when he was denied the position, and when Ms. Coley knew or became aware that Plaintiff had requested accommodations. Without these facts and without a specific allegation attesting to that fact, the court cannot infer that Plaintiff’s denial of promotion and subsequent demotion were motivated by Plaintiff’s requests for accommodations or perceived disability. First, the 4AC is unclear as to what disability Plaintiff has or was perceived to have had. Secondly, Plaintiff states that the Restorative Justice position was offered by Ms. Fores but later in the same paragraph states it was offered to him by Principal Friedman. (4AC ¶ 28; pp. 11:10-12, 12:1-3.) Moreover, it is unclear who ordered that Plaintiff be reassigned home and their motive for the reassignment.

For the reasons stated above, the court sustains the demurrer to the third cause of action without leave to amend.

iv. Fourth Cause of Action – Failure to Prevent Discrimination, Harassment and Retaliation in Violation of the FEHA

The FEHA makes it unlawful for an employer “to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring.” (Gov. Code, § 12940(k). “[B]ecause the statute does not create a stand-alone tort, the employee has no cause of action for a failure to investigate unlawful harassment or retaliation, unless actionable misconduct occurred.” (Thompson, supra, 186 Cal.App.4th at p. 880; see also Dickson v. Burke Williams, Inc. (2015) 234 Cal.App.4th 1307, 1316; Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1021; Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th 280, 288.)

Since the demurrer to the first, second, and third causes of action has been sustained, Plaintiff’s fourth cause of action also fails and the demurrer to the fourth cause of action is sustained without leave to amend.

v. Fifth and Sixth Cause of Action – Disability Discrimination: Failure to Make Reasonable Accommodations & Failure to Engage in the Interactive Process in Violation of the FEHA

As to the fifth cause of action, the elements of a claim for failure to provide reasonable accommodation of a disability are (1) the plaintiff had a disability within the meaning of FEHA, (2) the plaintiff is qualified to perform the essential functions of the positions, and (3) the employer failed to reasonably accommodate the plaintiff’s disability. (Scotch, supra, 173 Cal.App.4th at pp. 1009-1010.) The sixth cause of action is for failure to engage in the interactive process, which requires that Plaintiff “identify a reasonable accommodation that would have been available at the time the interactive process should have occurred.” (Id. at p. 1018.)

The 4AC states that Plaintiff made prior requests for accommodations that were ignored but fails to state facts as to when those requests were made and if they were included in his May 20, 2020, DFEH Charge, and are time-barred. (4AC ¶ 17.) However, Plaintiff specifically states that, on or about January 9, 2020, he presented to Ms. Serrano, Principal at Van Nuys Middle School, with his disabilities and requested accommodations. (4AC ¶ 20.) Plaintiff asserts that his request for an interactive meeting was ignored, and that Ms. Serrano did not begin the interactive process meeting until about February 27, 2020. (4AC ¶ 21.) Plaintiff further admits that Ms. Serrano provided “some accommodations” but fails to specify what those accommodations were. (Id.) The court has been unable to find any authority that a one-month delay in holding an interactive process meeting is sufficient to show breach of Government Code § 12940(n). There is no evidence that LAUSD violated Government Code § 12940(n) while Plaintiff was at Van Nuys Middle School.

“Where a necessary accommodation is obvious, where the employee requests a specific and available reasonable accommodation that the employer fails to provide, or where an employer participates in a good faith interactive process and identifies a reasonable accommodation but fails to provide it, a plaintiff may sue under [Government Code] section 12940(m).” (Nadaf-Rahrov v. Neiman Marcus Group, Inc. (2008) 166 Cal.App.4th 952, 983.) The 4AC fails to identify what accommodations were provided to Plaintiff while at Van Nuys Middle School and what specific accommodations were not provided. All that Plaintiff states is that “some accommodations were provided” and this is insufficient to show LAUSD failed to provide reasonable accommodations in violation of Government Code section Code § 12940(m). (4AC ¶ 21.)

The 4AC alludes that after being at Van Nuys Middle School, Plaintiff was involuntarily transferred to Mount Gleason Middle School and then accepted a position at Reed Middle School, requiring a new request for reasonable accommodations. (4AC ¶ 21.) While at Reed Middle School, on September 21, 2020, Plaintiff submitted to Ms. Friedman his documented disabilities and requests for accommodations. (4AC ¶ 22.) Ms. Friedman held “a new interactive process” meeting “approximately 9 days later.” (4AC ¶ 22.) Plaintiff alleges he emailed Ms. Friedman and Disability Coordinator Lemus multiple times about his requested accommodations, but Lemus requested more information, and a response was not provided until October 21, 2020. (4AC ¶ 24.)

On October 21, 2020 PLAINTIFF finally received a response from Lemus but such response was not only confusing but seemed to intentionally dodge the issue especially when what PLAINTIFF was requesting was identical to that of what PLAINTIFF requested from and for the most part received from Ms. Serrano while at Van Nuys Middle School.

It is unclear if Plaintiff did in fact receive accommodations on October 21, 2020, and what accommodations were denied such as to show that the accommodations were reasonable and obvious to LAUSD and LAUSD failed to provide them. (See Nadaf-Rhrov, supra, 83 166 Cal.App.4th at p. 983.) Plaintiff asserts that on January 21, 2021, Ms. Friedman set up a zoom meeting and conducted an interactive process meeting, but that Ms. Friedman ignored Plaintiff’s accommodations in setting up the meeting. (4AC ¶ 26.) “The ‘interactive process’ required by the FEHA is an informal process with the employee or the employee's representative, to attempt to identify a reasonable accommodation that will enable the employee to perform the job effectively. [Citation.] Ritualized discussions are not necessarily required. [Citation.]” (Wilson v. County of Orange (2009) 169 Cal.App.4th 1185, 1195.) For purposes of Government Code § 1940(m), what matters is the fact that the employer engaged in the interactive process not whether the meeting took place according to Plaintiff’s requested accommodations, since the very purpose of the meeting is to ascertain what reasonable accommodations the employer is able to provide.

Moreover, case law holds that when a reasonable accommodation is provided, it precludes the employer from being held liable for failure to engage in the interactive process. (Wilson, supra, 169 Cal.App.4th at p. 1195; Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 229; Watkins v. Ameripride Services (9th Cir. 2004) 375 F.3d 821, 829.) Therefore, the material allegations in the 4AC should specify facts that show that Plaintiff was denied specific reasonable accommodations that were available. According to the 4AC, the January 21, 2021, meeting resulted in Plaintiff being assigned a “chaperon” as an accommodation, an accommodation that Plaintiff did not request nor want, and the chaperon was removed at Plaintiff’s request on April 20, 2021. (4AC ¶ 27.) Plaintiff fails to identify what other alternative reasonable accommodation he requested that were denied by LAUSD.

Without more facts, the court cannot ascertain if LAUSD failed to timely and in good faith engage in the interactive process while Plaintiff was at Reed Middle School, and whether LAUSD did in fact provide alternative accommodations, and if those accommodations were reasonable. “[T]he fact that an employer took some steps to work with an employee to identify reasonable accommodations does not absolve the employer of liability under section 12940(n). If the employer is responsible for a later breakdown in the process, it may be held liable.” (Nadaf-Rahrov, supra, 166 Cal.App.4th at p. 985.)

In October 2021, Plaintiff was transferred to San Fernando High School where he had to reinitiate the interactive process by notifying Assistance Principal Erin Cuenca of his disability and requested accommodations. (4AC ¶¶ 28, 30.) “In response, Ms. Cuenca authorized the purchase of an enhanced hearing device to assist in communication with radios during campus supervision.” (4AC ¶ 28.) Thus, an accommodation was provided but no other facts are provided as to whether Plaintiff requested other reasonable accommodations that were denied.

For an unspecified reason, when Ms. Coley was assigned as the new Principal of San Fernando High School, on November 18, 2021, Plaintiff emailed Ms. Coley with his five physician notes describing his disabilities and requested accommodations. (4AC ¶ 28.) The 4AC states the following:

[O]n December 2, 2021 Ms. Coley refused to accept the previous interactive process done with Ms. Serrano and instead initiated a new interactive process. Unfortunately such efforts or the lack thereof were too little too late for as of November 18, 2021 PLAINTIFF was reassigned to home and no longer was in a classroom.

Therefore, it appears that Plaintiff requested accommodations on the same date that he was reassigned to home and that the requests became moot as Plaintiff was no longer in the classroom, thus precluding LAUSD from liability since Plaintiff no longer needed accommodations and no accommodations were denied.

Lastly, whether Plaintiff’s requested accommodations were, in fact, reasonable, is generally a question of fact, and it is immaterial that LAUSD alleges that Plaintiff’s requested accommodations were unreasonable. (See Wilson, supra, 169 Cal.App.4th at p. 1193; Raine v. City of Burbank (2006) 135 Cal.App.4th 1215, 1227, fn. 11.)

As the court finds that Plaintiff’s fifth and sixth causes of action are capable of amendment but are insufficiently pled, the demurrer to the fifth and sixth causes of action is sustained with leave to amend.

D. Plaintiff Complied with the Government Tort Claims Act Presentation Regarding his Labor Code Violations

Plaintiff’s seventh and eighth causes of action allege violations of Labor Code §§ 1102.5 and 98.6. LAUSD demurs to the seventh and eight causes of action on the basis that Plaintiff failed to comply with the Government Tort Claims Act. (4AC Ex. A.) LAUSD asserts that although Plaintiff filed a timely government claim, it was devoid of facts to his causes of action alleging Labor Code violations and instead only referenced facts related to FEHA retaliation, discrimination, and harassment and not the Labor Code violations for retaliation. (Mot. at p. 18:22-27.)

On December 15, 2021, Plaintiff presented a government claim alleging “unlawful discrimination, harassment, and retaliation in my employment, violating my state and federal rights.” (4AC Ex. A.) Although Plaintiff did not specifically allege that the retaliation he experienced was in violation of the Labor Code, Plaintiff also did not state that retaliation was in violation of the FEHA. Defendant fails to cite any case law stating that government claims must allege statutory violations with specificity. The purpose of the claim presentation requirement is “to provide the public entity sufficient information to enable it to adequately investigate claims and to settle them, if appropriate, without the expense of litigation.” (City of San Jose v. Superior Court (1974) 12 Cal.3d 447, 455.) “Consequently, a claim need not contain the detail and specificity required of a pleading, but need only ‘fairly describe what [the] entity is alleged to have done.’ [Citation.]” (Stockett v. Association of Cal. Water Agencies Joint Powers Ins. Authority (2004) 34 Cal.4th 441, 446.) FEHA claims are exempt from the claim presentation requirements of the Tort Claim Act, but Labor Code violations are not. (See Garcia v. Los Angeles U.S.D., 173 Cal.App.3d 701, 711-712; Le Mere v. Los Angeles Unified School Dist. (2019) 35 Cal.App.5th 237, 245.) Therefore, Plaintiff did not need to specify he was alleging retaliation in violation of the Labor Code rather than FEHA. Moreover, even if Plaintiff’s claim was deficient, Defendants fails to show that the doctrine of substantial compliance does not apply to Plaintiff’s claims. (See Santee v. Santa Clara County Office of Education (1990) 220 Cal.App.3d 702, 713 [“The doctrine of substantial compliance is normally raised where a timely but deficient claim has been presented to the public entity.”].)

Therefore, the court finds that Plaintiff’s seventh and eighth causes of action were timely presented in compliance with the Government Tort Claims Act.

i. Seventh and Eighth Causes of Action - Retaliation in Violation of Labor Code §§ 98.6 and 1102.5¿

Labor Code § 98.6 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. (Lab. 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” (Lab. 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. (Lab. Code, § 1102.5(b).)¿

PLAINTIFF has made numerous and multiple complaints with Equal Employment Opportunity Supervisor Espinoza, Superintendent Beutner, Chief Human Resources Officer Del Cueto, Chief Human Resources Officer Devalos, all LAUSD Elected Board Members and many others regarding the unlawful actions and activities of LAUSD, including but not limited to failing to accommodate PLAINTIFF, transferring PLAINTIFF numerous times, including transferring PLAINTIFF on a Jewish Holiday and the disparate and harassing behavior of Chet.

PLAINTIFF complained about the accuracy of his compensation, specifically requesting clarification of hours worked and clarification of how many hours a day PLAINTIFF was compensated (as PLAINTIFF was told he was an 8 hour a day employee and requested to work 8 hours but later found out that was false and when requesting to be paid the additional hours such requests were deliberately ignored).

For whistleblower retaliation claims, “‘[t]he retaliatory motive is proved by showing that plaintiff engaged in protected activities, that his employer was aware of the protected activities, and that the adverse action followed within a relatively short time thereafter.’ [Citation.] ‘The causal link may be established by an inference derived from circumstantial evidence, such as the employer's knowledge that the [employee] engaged in protected activities and the proximity in time between the protected action and allegedly retaliatory employment decision.’ [Citations.] ‘Essential to a causal link is evidence that the employer was aware that the plaintiff had engaged in the protected activity.’” (Garcia-Brower v. Premier Automotive Imports of CA, LLC (2020) 55 Cal.App.5th 961, 978 citing Morgan v. Regents of University of Cal. (2000) 88 Cal.App.4th 52, 69-70.)

Paragraphs 120 and 131 lay out the protected activities Plaintiff allegedly engaged in, but the rest of the 4AC is devoid of facts showing that LAUSD knew that Plaintiff engaged in these activities and that circumstantial facts exist to suggest that Plaintiff was retaliated against for engaging in said activities. The 4AC does not state when Plaintiff engaged in said activities, what adverse employment actions Plaintiff suffered due to said activities, and the temporal proximity between him engaging in said activities and LAUSD’s retaliation.

Therefore, the seventh and eighth causes of action are insufficiently pled, and the court sustains the demurrer as to those causes of action. As the demurrer to the seventh and eighth causes of action was previously sustained due to failure to comply with the Government Tort Claims Act, the demurrer to the seventh and eighth causes of action is sustained with leave to amend.

As Defendant LAUSD’s demurrer to the 4AC has been sustained, their motion is now moot.

Defendant LAUSD’s demurrer to the 4AC is sustained without leave to amend as to the first through fourth causes of action and sustained with leave to amend as to the fifth through eighth causes of action. Defendant’s Motion to strike is denied as moot.

[1] Pursuant to CCP §§ 430.41, 435.5(a), the meet and confer requirement has been met. Defense counsel asserts that on August 24, 2023, he engaged in a nearly two-hour telephonic meet and confer with Plaintiff acting in pro per. (Bejarno Decl. ¶ 8.)