Judge Gail Killefer, Case Number: 23STCV06935, Date: 2024-07-12 Tentative Ruling

TENTATIVE: Moving Defendants’ MJOP is granted without leave to amend as to the first, second, third, and twelfth causes of action. The MJOP is granted as to the fourteenth cause of action with 10 days leave to amend. The Court sets an OSC Re Amended Complaint for August 2, 2024, at 8:30 a.m. Moving Defendants to give notice.

On March 29, 2023, Omar Penny (“Plaintiff”) filed this employment action against the County of Los Angeles; Los Angeles County Department of Health Services; LAC+USC Medical Center; The Los Angeles County – USC Medical Auxiliary (the “County Defendants”); Jorge Fuentes; Philip Hyden; Theresa Saracho; Rosario Tanphanich; Melissa Valenzuela; Nune Abraamyan; Antony Meza; and Does 1 to 25.

1) Harassment Based on Sex and Gender in Violation of the Fair Employment and Housing Act (“FEHA”) [Cal. Gov’t Code § 12940(j)];

2) Harassment Based on Religion in Violation of the FEHA [Cal. Gov’t Code § 12940(j)];

3) Harassment Based on Disability in Violation of the FEHA [Cal. Gov’t Code § 12940(j)];

11) Failure to Prevent Harassment and Discrimination from Occurring in Violation of the FEHA [Cal. Gov’t Code §§12940(k)];

12) Aiding and Abetting Discrimination in violation of the FEHA [ Cal. Gov’t Code §12940(i)];

On May 31, 2024, Defendants Jorge Fuentes (“Fuentes”) and Philip Hyden (“Hyden”) (collectively “Moving Defendants”) filed a motion for judgment on the pleadings (“MJOP”). Plaintiff opposes the Motion. The matter is now before the court.

motion for judgment on the pleadings[1]

“A motion for judgment on the pleadings performs the same function as a general demurrer, and hence attacks only defects disclosed on the face of the pleadings or by matters that can be judicially noticed.” (Burnett v. Chimney Sweep (2004) 123 Cal.App.4th 1057, 1064.) “In deciding or reviewing a judgment on the pleadings, all properly pleaded material facts are deemed to be true, as well as all facts that may be implied or inferred from those expressly alleged.” (Fire Ins. Exchange v. Superior Court (2004) 116 Cal.App.4th 446, 452.) When considering demurrers and judgment on the pleadings, courts read the allegations liberally and in context. (Wilson v. Transit Authority of City of Sacramento (1962) 199 Cal.App.2d 716, 720-21.)

A motion for judgment on the pleadings does not lie as to a portion of a cause of action. (Id.) “In the case of either a demurrer or a motion for judgment on the pleadings, leave to amend should be granted if there is any reasonable possibility that the plaintiff can state a good cause of action.” (Gami v. Mullikin Medical Ctr. (1993) 18 Cal.App.4th 870, 876.) A non-statutory motion for judgment on the pleadings may be made any time before or during trial. (Stoops v. Abbassi (2002) 100 Cal.App.4th 644, 650.)¿¿

The court may take judicial notice of “official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States,” “[r]ecords of (1) any court of this state or (2) any court of record of the United States or of any state of the United States,” and “[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (Evid. Code, § 452, subds. (c), (d), and (h).) “Taking judicial notice of a document is not the same as accepting the truth of its contents or accepting a particular interpretation of its meaning.” (Joslin v. H.A.S. Ins. Brokerage (1986) 184 Cal.App.3d 369, 374.)

1) Exhibit A: A true and correct copy of Plaintiff Omar Penny's Charge of Discrimination, dated August 6, 2021, filed with the Equal Employment Opportunity Commission (hereinafter "EEOC") naming LAC + USC Medical Center as his employer, with an address of 1200 N. State Street, Los Angeles, CA 90033, bearing the Agency Charge Number 480-2021-03579, along with its attachment.

2) Exhibit B: A true and correct copy of Plaintiff Omar Penney's Amended Charge of Discrimination dated December 3, 2021, filed with the EEOC, naming LAC+USC Medical Center as his employer, bearing the Agency Charge Number 480-2021-03579, along with its attachment.

3) Exhibit C: A true and correct copy of Plaintiff Omar Penney's Amended Charge of Discrimination dated December 3, 2021, filed with the EEOC, naming LAC+USC Medical Center as his employer, bearing the Agency Charge Number 480-2021-03579, along with its attachment.

4) Exhibit D: A true and correct copy of Plaintiff Omar Penney's Charge of Discrimination, dated August 6, 2021, filed with the EEOC, naming Los Angeles County as his employer, with an address of 500 W. Temple Street, Room 358, Los Angeles CA 90012, bearing the Agency Charge Number 480-2021-0358, along with its attachment.

1) A true and correct copy of Plaintiff Omar Penny’s Right to Sue Package, dated April 7, 2023, filed with the Department of Fair Employment and Housing (hereinafter “DFEH”) naming Defendants County of Los Angeles, LAC+USC Medical Center, The Los Angeles County – USC Medical Center Auxiliary, Theresa Saracho, Jorge Fuentes, Philip Hyden, Rosario Tanphanich, Melissa Valenzuela, Nune Abraamyan, and Anthony Meza as Co-Respondents, bearing the Civil Rights Department Matter Number: 202304-20205507, stating Plaintiff was harassed because of his religious creed, sex/gender, gender identity or expression, sexual orientation, and sexual harassment – hostile work environment, along with its attachment, attached hereto as Exhibit A.

Moving Defendants’ object to the request for judicial notice because Plaintiff did not attach nor provide Defendants with a copy of Exhibit A. Evid. Code § 453(b) requires the moving party to “[f]urnish the court with sufficient information o enable [the court] to take judicial notice of the matter.” As Plaintiff failed to attach Exhibit A to the request for judicial notice or the opposing papers, the court denies Plaintiff’s request for judicial notice.

“Under FEHA, the employee must exhaust the administrative remedy provided by the statute by filing a complaint with the Department of Fair Employment and Housing (Department) and must obtain from the Department a notice of right to sue in order to be entitled to file a civil action in court based on violations of the FEHA.” (Romano v. Rockwell Internat., Inc. (1996) 14 Cal.4th 479, 492; see also Gov. Code, §§ 12960, 12965(b).) “The timely filing of an administrative complaint is a prerequisite to the bringing of a civil action for damages under FEHA.” (Romano, at p. 492.)

Moving Defendants assert plaintiff failed to exhaust his administrative remedies with respect to the harassment claims in his Equal Employment Opportunity Commission (“EEOC”) charges. (RJN, Ex. A, B.) plaintiff asserts that his administrative charges with the EEOC, filed on August 1, 2022, and December 3, 2021, properly named Moving Defendants as respondents. Plaintiff’s opposition adds that “Plaintiff filed a further administrative charge with DFEH on April 7, 2023. And obtained a right-to sue letter[.]” (Opposition, at p. 4:28-5:1.) By Plaintiff’s admission, Plaintiff did not obtain a right-to-sue letter from the Department of Fair Employment and Housing (“DFEH”) until after April 7, 2023, which occurred after Plaintiff filed this FEHA action on March 29, 2023.

Therefore, Plaintiff did not exhaust his administrative claims for FEHA-based causes of action prior to filing this action because he had not yet obtained a right-to-sue letter from DFEH. “DFEH had up to one year from the filing of the administrative claim to complete its investigation and issue a ‘right-to-sue’ letter (Gov. Code, § 12965, subd. (c)(1)(A)), and a lawsuit alleging FEHA claims had to be filed within one year of the issuance of the ‘right-to-sue’ letter. (Gov. Code, §§ 12960, subd. (f)(1)(B), 12965, subd. (c)(1)(C).).” (Ramirez v. Charter Communications, Inc. (2022) 75 Cal.App.5th 365, 374.) The operative Complaint is silent as to when Plaintiff obtained a right-to-sue letter from the DFEH and merely asserts in a conclusory manner “Plaintiff has exhausted all administrative remedies necessary and has timely brought this action.” (Compl., ¶ 20.)

Moreover, the filing of an EEOC charge does not satisfy the administrative exhaustion requirement for FEHA-based actions:

[U]nder the federal statute it implements (42 U.S.C. § 2000e–5(f)(1)), an EEOC right-to-sue notice satisfies the requirement of exhaustion of administrative remedies only for purposes of an action based on Title VII. Inasmuch as Martin elected to base her action not on Title VII but on the Fair Employment and Housing Act the EEOC right-to-sue notice technically did not satisfy the jurisdictional requirement that Martin have exhausted her administrative remedies as to the asserted violations of the California statute.

(Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th 1718, 1726 (Martin) [italics original].)

The appellate court found similarly in Foroudi v. Aerospace Corporation (2020) 57 Cal.App.5th 992: “All of Foroudi's arguments related to the EEOC charge and right-to-sue notice suffer the same fatal flaw: the exhaustion of EEOC remedies does not satisfy the exhaustion requirements for state law claims.” (Id. a p. 1001; see also Reynoso v. County of Ventura (C.D. Cal., Mar. 8, 2022, No. 2:19-CV-05687-KES) 2022 WL 2092909, at *10 [“In contrast, the County has cited Martin, a case from the California Court of Appeal, holding that FEHA exhaustion requires a DFEH right-to-sue letter, even if the plaintiff has an EEOC right-to-sue letter on the same claim”].) In deciding the inverse, whether a right-to-sue letter from the DFEH but not the EEOC entitles the plaintiff to pursue claims under Title VII, the appellate court stated, “we see no reason for a rule other than Martin to apply” and found that plaintiff could not pursue Title VII-based claims. (Roman v. County of Los Angeles (2000) 85 Cal.App.4th 316, 326.)

Here, Moving Defendants demurrer to Plaintiff’s first, second, and third causes of action for harassment in violation of Gov. Code § 12940(j), twelfth cause of action for aiding and abetting discrimination in violation of FEHA (Gov. Code § 12940(i) and fourteenth cause of action for IIED. The first, second, and twelfth causes of action are premised on statutory FEHA violations and Plaintiff fails to show he obtained a FEHA right-to-sue letter prior to the filing of this action. “We agree that exhaustion of the FEHA administrative remedy is a precondition to bringing a civil suit on a statutory cause of action.” (Rojo v. Kliger (1990) 52 Cal.3d 65, 83 [italics original].) Accordingly, the MJOP to the first, second, and twelfth causes of action is granted without leave to amend as Plaintiff fails to show he exhausted his administrative remedies under FEHA[2].

“[A]lthough an employee must exhaust the FEHA administrative remedy before bringing suit on a cause of action under the act or seeking the relief provided therein, exhaustion is not required before filing a civil action for damages alleging nonstatutory causes of action.” (Rojo, supra, 52 Cal.3d at p. 88.) “An employee, of course, may elect to waive the statutory cause of action and remedies, and proceed directly to court on the common law claims [citation]; alternatively, the employee may pursue both the administrative and the judicial avenues, either sequentially [citations] or simultaneously, in the latter case amending his or her complaint to join the FEHA cause of action once the Department has issued the right-to-sue letter [.]” (Id. at pp. 144-145.)

In the Complaint, the IIED claim is premised on discriminatory and harassing conduct under the FEHA. Accordingly, the IIED claim also fails because it is derivative of the FEHA claims. “By engaging in the above-described conduct, Defendants engaged in extreme and outrageous conduct with the intention of causing, or reckless disregard of the probability of causing, emotional distress.” (Compl., ¶ 236.) However, the court grants the MJOP as to the IIED claim with leave to amend as it is a nonstatutory cause of action capable of amendment.

Moving Defendants’ MJOP is granted without leave to amend as to the first, second, third, and twelfth causes of action. The MJOP is granted as to the fourteenth cause of action with 10 days leave to amend. The Court sets an OSC Re Amended Complaint for August 2, 2024, at 8:30 a.m. Moving Defendants to give notice.

[1] The meet and confer requirement has been met pursuant to CCP § 439. (Aghazaryan Decl. ¶ 3, Ex. A.)

[2] As the MJOP relating to the harassment claims is granted, the court does not reach the merits as to whether the harassment claims are sufficiently pled.