Judge Gail Killefer, Case Number: 24STCV29002, Date: 2025-05-13 Tentative Ruling

TENTATIVE: Defendant SMMUSD’s demurrer to the FAC is sustained with leave to amend. Plaintiff is granted 10 days leave to amend. The court sets the OSC RE: Amended Complaint for May 29, 2025, at 8:30 a.m. The Court also advances the Case Management Conference (“CMC”) scheduled for May 22, 2025, to today, and continues the CMC to May 29, 2025, at 8:30 a.m. Defendant to give notice.

On November 5, 2024, Carolina Edelstein (“Plaintiff”) filed a Complaint against Santa Monica-Malibu Unified School District (“Defendant” or “SMMUSD”) related to an employment dispute.

The operative First Amended Complaint (“FAC”) alleges the following six causes of action: (1) Disability Discrimination (Gov. Code § 12940(a)); (2) Disability Harassment (Gov. Code § 12940(j)); (3) Failure to Prevent Harassment, Discrimination, or Retaliation (Gov. Code § 12940(k)); (4) Failure to Provide Reasonable Accommodation (Gov. Code § 12940(m)); (5) Failure to Engage in an Interactive Process (Gov. Code § 12940(n)); and (6) Wrongful Discharge in Violation of Public Policy.

Defendant SMMUSD now demurs to the 2nd cause of action for disability harassment. Plaintiff opposes the demurrer. The matter is now before the court.

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.)

Defendant SMMUSD requests judicial notice of Ed. Code § 44929.21(b), which states:

(b) Every employee of a school district of any type or class having an average daily attendance of 250 or more who, after having been employed by the district for two complete consecutive school years in a position or positions requiring certification qualifications, is reelected for the next succeeding school year to a position requiring certification qualifications shall, at the commencement of the succeeding school year be classified as and become a permanent employee of the district.

The governing board shall notify the employee, on or before March 15 of the employee's second complete consecutive school year of employment by the district in a position or positions requiring certification qualifications, of the decision to reelect or not reelect the employee for the next succeeding school year to the position. In the event that the governing board does not give notice pursuant to this section on or before March 15, the employee shall be deemed reelected for the next succeeding school year.

This subdivision shall apply only to probationary employees whose probationary period commenced during the 1983-84 fiscal year or any fiscal year thereafter.

Demurrer[1]

Where pleadings are defective, a party may raise the defect by way of a demurrer. (Coyne v. Krempels (1950) 36 Cal.2d 257, 262.) A demurrer tests the sufficiency of a pleading, and the grounds for a demurrer must appear on the face of the pleading or from judicially noticeable matters.¿ (CCP, § 430.30(a); Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) In evaluating a demurrer, the court accepts the complainant’s properly pled facts as true and ignores contentions, deductions, and conclusory statements. (Daar v. Yellow Cab Co. (1976) 67 Cal.2d 695, 713; Serrano v. Priest (1971) 5 Cal.3d 584, 591.) Moreover, the court does not consider whether a plaintiff will be able to prove the allegations or the possible difficulty in making such proof. (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 604.)

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.)¿ The burden is on the complainant to show the Court that a pleading can be amended successfully. (Ibid.)

On or about August 1, 2022, Plaintiff began working as a school psychologist in the special education department at a middle school belonging to Defendant SMMUSD. (FAC, ¶ 12) At the time of her hiring, Plaintiff disclosed to Defendant that she had a disability and provided a note from her doctor explaining that she needed work accommodations due to her chronic migraines. (Id. ¶¶ 13, 14.)

On August 26, 2022, Defendant SMMUSD, in an interactive meeting that included Assistant Superintendent Mark Kelly (“Kelly”), Lincoln Middle School Principal Ryan Bourke, and Special Education Director Deanna Sinfield (“Sinfield”), Defendant agreed to provide the following accommodations: “a) on days when Edelstein was unable to work or experiencing debilitating symptoms, she could work from home and participate in Individualized Education Plan (“IEP”) meetings virtually; b) on days when Edelstein’s symptoms became so severe that she could not work on-site or from home, she would utilize her personal sick leave time; and c) Edelstein would inform a Lincoln Middle School administrator when she was working from home or taking a sick day.” (FAC ¶ 15.) There were no limitations on the number of work-from-home days Plaintiff could take and Plaintiff could attend IEP meetings remotely. (Id. ¶ 16.)

Plaintiff’s leave of absence from March 2, 2023, to June 2, 2022, was approved. (FAC, ¶¶ 19, 20.) On June 16, 2023, Plaintiff provided a note about her need for work-from-home restrictions due to Plaintiff seeing multiple specialists and undergoing testing, with her return-to-work date extended to July 1, 2023. (Id. ¶ 21.) On July 6, 2023, Plaintiff met with Sinfield and Kelly to discuss the June 16, 2022 doctor’s note and Plaintiff’s request to work from home. (Id. ¶ 22.)

At the meeting Kelly took the position that Plaintiff’s school psychologist assignment was an “in-person” assignment and Kelly did not want to allow Plaintiff to work from home. (Id. ¶ 23.) “Mr. Kelly told Ms. Edelstein that he wanted her to go to work in person rather than honor the accommodation the District had previously agreed to.” (Id ¶ 23.) Defendant SMMUSD informed Plaintiff that it was unable to accommodate her request to work from home, and Kelly offered Plaintiff the option to continue with her leave of absence as a temporary reasonable accommodation but told Plaintiff that if she chose this option “she would lose her employment with the District and be placed on a medical reemployment list after her leave provisions were exhausted.” (Id. ¶ 24.)

On July 14, 2024, after another interactive meeting, Sinfield and Kelly agreed that Plaintiff could use her allocated sick time if she was unable to report to work and she could access her remaining extended illness leave if needed but denied her request to work from home as needed. (FAC, ¶¶ 26, 27.) Additional interactive meetings took place on August 14, 2023, and September 18, 2023. (Id. ¶ 28.) At the August 14, 2023 meeting, Plaintiff proposed other reasonable accommodations such as “working at another school site, having her service dog at work, working from home and checking in with the team if unable to leave the apartment, and a change in her work schedule to exchange future scheduled non-duty days from June 2024 to August 2023 where she was already absent from work.” (Id. ¶ 28.) The District limited Ms. Edelstein to two work-from-home days a month, which were arbitrary limits set by Kelly and unsupported by documentation from a physician. (Id. ¶ 30.)

After a car accident on November 15, 2024, Plaintiff provided an off-work note for the period of November 14, 2023 through December 14, 2023, with a return date extended to January 15, 2025 due to surgery, and later to February 13, 2024. (FAC, ¶¶ 33, 35.) On January 12, 2025, Defendant SMMUSD informed Plaintiff that due to her absence and high amount of overdue counseling and assessments, another psychologist was hired to take on some of Plaintiff’s workload. (Id. ¶ 34.) Defendant SMMUSD informed Plaintiff that her leave of absence had imposed a hardship on Defendant because it had to hire someone else for Plaintiff’s position, despite Plaintiff’s medical leave being necessary to treat her injuries. (Id. ¶ 37.)

On February 15, 2024, Kelly informed Plaintiff that her work-from-home accommodation was no longer being honored in any capacity and there was no longer any accommodation in place of her disability. (FAC, ¶ 36.) Kelly also informed Plaintiff that her service animal was no longer allowed on campus, despite a prior agreement to the contrary. (Ibid.) Defendant SMMUSD informed Plaintiff that it would be difficult to accept an accommodation that required Plaintiff to work from home. (Id. ¶ 37.)

At the February 15, 2024 meeting, Plaintiff informed SMMUSD that in comparison to the two other school psychologists in the same position, who each had 20 cases and conducted initial evaluations for one grade, Plaintiff had about 53 cases and handled all initial evaluations for 9th and 10th graders. (FAC, ¶ 38.) Defendant SMMUSD asserted that the disproportionate workload was due to the other colleagues having extra job duties, such as attending additional meetings with students and leading unscheduled counseling groups. (Id. ¶ 38.) Plaintiff explained she also had additional job duties, including meeting with students in emergencies and seeing them in crisis outside their counseling sessions. (Id. ¶ 38.)

Consequently, Plaintiff requested redistribution of her case load between the two other school psychologists, but the request was denied. (Id. ¶ 39.) Kelly informed Plaintiff that caseload inquiries were not pertinent to the interactive meeting. At the February 15, 2024 interactive meeting, Plaintiff also suggested alternative accommodations, such as holding meetings in her office on her laptop during times her disability flared up, coming to work late, leaving early after her in-person assignments were completed to deal with other work not done in person, but the district refused these accommodation requests. (Id. ¶ 41.)

In June 2023, Plaintiff received an evaluation indicating that she needed to make performance improvements, despite the evaluation being conducted without Plaintiff’s presence or any supporting documentation. (FAC, ¶¶ 45, 46, 47.) Victoria Hurst also minimized Plaintiff’s doctor-mandated accommodations by stating that they were just a “request” despite having a doctor’s note indicating that her need to work from home was due to her disability and the fact that the accommodations were initially put in place by Defendant SMMUSD. (Id. ¶ 48.)

On February 24, 2024, Hurst provided Plaintiff with a copy of her evaluation and informed Plaintiff that the Defendant SMMUSD would not be offering her a job for the 2024/2025 school year and that she had had two weeks to choose whether to resign or be terminated by the Defendant. (FAC, ¶ 49.) On February 27, 2024, Plaintiff met with Hurst and Hilda Salas (“Salas”) to go over her evaluation and caseload. (Id. ¶ 50.) Salas stated that the caseload would not be redistributed despite Plaintiff having 11 teachers on her caseload while the other two school psychologists only had 7. (Id. ¶ 50.)

At the beginning of the 2023-2024 school year, Plaintiff, Salas, Ponce Jauregui, and someone named Braverman agreed to divide the workload across the assessment process but in November 2023, the division of labor was changed so everyone worked on their own caseloads moving forward. (FAC, ¶ 51.) While on medical leave in November 2023, Plaintiff asserts “the team members did not take any action to shift to individually managed caseloads, choosing to leave Ms. Edelstein with more work than her peers, despite Ms. Edelstein’s disabilities.” (Id. ¶ 52.) Plaintiff pointed out that she had 140 students on her caseload while the other school psychologists had about 50 to 70 students each. (Id. ¶ 53.)

Plaintiff tried to manage her higher case load and continued to engage in the interactive process, only to be informed by Hurst that she now only had until February 28, 2024, at 4 p.m. to resign to avoid termination. (FAC, ¶ 54.) On February 28, 2024, Plaintiff emailed Kelly requesting clarification as she had not received a letter from Defendant SMMUSD stating that she would no longer be employed for the upcoming school year, but Plaintiff received no response. (Id. ¶ 55.) On February 29, 2024, at 6:44 p.m., Kelly responded to Plaintiff’s email and stated Plaintiff had not met the criteria of having worked 75% of the school year, and Plaintiff was still considered to be in her first year of probation for the 2023/2024 school year. (Id. ¶ 56.) Kelly explained that all employees who were not reelected for the next school year were given the option to resign in lieu of non-reelection. (Ibid.) Kelly stated he would extend Plaintiff’s deadline to decide if she would resign to March 1, 2024, but let Plaintiff know that regardless of Plaintiff’s decision, her last day of paid service was June 30, 2024. (Id. ¶ 37.) By March 4, 2024, Plaintiff had not received any emails from anyone involved in the interactive meetings regarding her accommodations request, and her request for notes from the meeting was ignored. (FAC, ¶ 58.) Plaintiff sent follow-up emails on March 12, 2024, and March 20, 2024, but her emails were ignored. (Id.¶ 59.)

On March 28, 2024, Plaintiff submitted a complaint form and reported the discrimination, harassment and retaliatory treatment she experience after attending the interactive meeting on February 2, 2024, when Kelly, Hurst, Salas and Cruce told Plaintiff that her disability accommodations were being taken away and she was no longer permitted to bring her service dog to work without a doctor’s note. (FAC, ¶ 60.) Plaintiff states that at the subsequent interactive meeting held on February 15, 2024, Kelly failed to address Plaintiff’s accommodation requests directly and dismissively told her he would consider the request and get back to her. (Id. ¶ 61.) Kelly allowed Plaintiff to bring her service dog with stipulations and Plaintiff asserts that Defendant SMMUSD was supposed to assign her caseload by February 15, 2024, but instead informed her she would be reelected to work for the 2024-2025 school year. (Ibid.)

The district took no action to address Plaintiff’s complaint and instead informed Plaintiff she was not rehired, effectively terminating her on June 30, 2024. (FAC, ¶¶ 62, 63.) Instead, after her exit interview in which she complained that the Defendant SMMUSD was breaking the law regarding its failure to meet is legal obligations to special needs students in its care, Defendant placed Plaintiff on immediate administrative leave and told her she was not to have any contact with parents or students. (Id. ¶ 66.)

Plaintiff asserts that Defendant SMMUSD created a hostile work environment and pushed her out of her employment due to her disability. (FAC, ¶ 68.) “Defendants created a work environment in which they intimidated, acted with hostility, and harassed Plaintiff based on her disability.” (Id. ¶ 79.) “Defendants’ conduct was so severe and/or pervasive that it caused Plaintiff to perceive her work environment as intimidating, hostile, and offensive, which interfered with Plaintiff’s ability to perform her job duties.” (Id. ¶ 80.)

Government Code § 12940(j)(1) provides that it is unlawful for an employer to harass an employee because of the employee’s disability. (See Govt. Code, § 12940(j)(1).)¿Harassment occurs¿when the workplace is permeated¿with¿“discriminatory intimidation,¿ridicule and insult that is¿sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.”¿(Serriv. Santa Clara University(2014) 226 Cal.App.4th 830, 869.) The offensive conduct¿must be of a repeated, routine, or generalized nature when the harassing conduct is not severe. (See Lyle v. Warner Bros. Television Productions(2006) 38 Cal.4th 264, 283.) Harassment that is occasional, isolated or sporadic is insufficient. (Id.)

“The working environment must be evaluated in light of the totality of the circumstances: whether an environment is ‘hostile’ or ‘abusive’ can be determined only by looking at all the circumstances. These may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.”¿(Miller v. Dep’t of Corrections (2005) 36 Cal.4th 446,¿462.) However, negative employment decisions, such as termination or demotion, cannot¿form¿the basis of a¿hostile environment claim¿and are suited to a discrimination claim. (Roby v. McKesson Corp.(2009) 47 Cal.4th 686, 707-711 (Roby)[holding the same, however, finding that negative employment actions may be used as evidence to show animus¿in a harassment case].)

Defendant SMMUSD asserts that Plaintiff’s harassment claim fails because the decision not to grant Plaintiff’s requested accommodation, her performance evaluations, and the decision not to rehire Plaintiff are management decisions that cannot form the basis of a harassment claim. “We conclude, therefore, that the Legislature intended that commonly necessary personnel management actions such as hiring and firing, job or project assignments, office or work station assignments, promotion or demotion, performance evaluations, the provision of support, the assignment or non-assignment of supervisory functions, deciding who will and who will not attend meetings, deciding who will be laid off, and the like, do not come within the meaning of harassment.” (Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 64–65 (Janken).)

Here, the conduct that Plaintiff’s asserts was harassment occurred during or in the course of the interactive meetings regarding Plaintiff’s request for accommodation and concerning conduct regarding personal decisions by Defendant’s employees, thus supporting a finding that the conduct was made in the course of personnel management decisions. “ ‘[H]arassment consists of a type of conduct not necessary for performance of a supervisory job. Instead, harassment consists of conduct outside the scope of necessary job performance, conduct presumably engaged in for personal gratification, because of meanness or bigotry, or for other personal motives. Harassment is not conduct of a type necessary for management of the employer's business or performance of the supervisory employee's job.’ ” (Reno v. Baird (1998) 18 Cal.4th 640, 645–646.) Unlike harassment, “[d]iscrimination claims, by contrast, arise out of the performance of necessary personnel management duties.” (Janken, supra, 46 Cal.App.4th at p. 63.)

Plaintiff fails to explain how the alleged harassing conduct, such as Plaintiff complaining about higher caseloads after her accommodations are taken away, being sent emails reminding her of evaluation being due during her leave, the Defendant’s decision not to rehire Plaintiff, and being given the option to resign or await termination is conduct not necessary for personal management decisions.

In Roby v. McKesson Corp. (2009) 47 Cal.4th 686 (Roby), the California Supreme Court explained that “in some cases the hostile message that constitutes the harassment is conveyed through official employment actions, and therefore evidence that would otherwise be associated with a discrimination claim can form the basis of a harassment claim.” (Id. at p. 708.) However, Plaintiff fails to distinguish between the discriminatory conduct that by itself conveys an offensive message, and a harassing message based on conduct that is separate from the discriminatory personnel management decisions made by Defendant SMMUSD. “[H]arassment is generally concerned with the message conveyed to an employee, and therefore with the social environment of the workplace, whereas discrimination is concerned with explicit changes in the terms or conditions of employment.” (Roby, at p. 708 [italics added].) Here, the FAC is devoid of facts showing that the harassment took place in the social environment of the workplace rather than being confined to specific instances of personal management decisions such as the interactive process meetings, the performance evaluation, and the decision to terminate Plaintiff.

The Roby Court explained that “Roby's discrimination claim sought compensation for official employment actions that were motivated by improper bias” whereas “Roby's harassment claim, by contrast, sought compensation for hostile social interactions in the workplace that affected the workplace environment because of the offensive message they conveyed to Roby.” (Roby, supra, 47 Cal.4th at pp. 708-709 [italics original].) “These harassing actions included Schoener's demeaning comments to Roby about her body odorand arm sores, Schoener's refusal to respond to Roby's greetings, Schoener's demeaning facial expressions and gestures toward Roby, and Schoener's disparate treatment of Roby in handing out small gifts.” (Id. at p. 709.) “None of these events can fairly be characterized as an official employment action.” (Ibid. [italics added].) “Rather, these were events that were unrelated to Schoener's managerial role, engaged in for her own purposes.” (Ibid.)

The Roby Court explained that Roby’s harassment claim can be bolstered by official employment actions that “also have a secondary effect of communicating a hostile message.” (Roby, supra, 47 Cal.4th at p. 709.) This included “Schoener's shunning of Roby during staff meetings, Schoener's belittling of Roby's job, and Schoener's reprimands of Roby in front of Roby's coworkers,” but the underlying harassing conduct must still be premised on offensive conduct occurring outside official employment actions. (Ibid.) While “there is no basis for excluding evidence of biased personnel management actions so long as that evidence is relevant to prove the communication of a hostile message” the hostile message must still relate to social interactions, meaning conduct outside of official employment actions because it is conduct not necessary for the management of the employer's business or performance of the supervisory employee's job. (Roby, supra, 47 Cal.4th at p. 708; Janken, supra, 46 Cal.Ap.4th at p. 63.)

Here, the FAC’s hostile conduct relates mainly to official employment actions, and fails to allege facts showing that the offensive conduct fell outside official employment actions that were unnecessary for the management to Defendant’s business and that the conduct was sufficiently severe and/or pervasive to constitute harassment.

Therefore, the demurrer to the second cause of action is sustained with leave to amend.

[1] Pursuant to CCP § 430.41, the meet and confer requirement has been met. (Stori Decl., ¶¶ 5 6.)