Judge Gary Y. Tanaka, Case 22TRCV00067 2023-05-25 Tentative Ruling

LOS ANGELES SUPERIOR COURT – SOUTHWEST DISTRICT

Honorable Gary Y. Tanaka Thursday, May 25, 2023

Department B Calendar No. 9

City of Torrance’s Demurrer to Second Amended Complaint is sustained with 20 days leave to amend.

City of Torrance’s Motion to Strike Portions of First Amended Complaint is moot.

Plaintiff’s Complaint was filed on January 28, 2022. Plaintiff’s Second Amended Complaint was filed on February 27, 2023. Plaintiff alleges the following facts. Plaintiff is a firefighter paramedic for Defendant City of Torrance. In 2011, Plaintiff was diagnosed with a “physical disability, mental disability, or protected condition.” (SAC, ¶ 8.) In 2016, Plaintiff was removed from his paramedic assignment by the Fire Chief. In 2020 and again in 2021, Plaintiff asked to be reinstated to his paramedic assignment. Plaintiff was never reinstated. Plaintiff was discriminated against due to his age and disability. Plaintiff alleges the following causes of action: 1. Discrimination in Violation of FEHA (California Government Code § 12940(a); 2. Failure to Accommodate in Violation of FEHA (California Government Code § 12940(m); 3. Failure to Engage in Interactive Process in Violation of FEHA (California Government Code § 12940(n).

Defendant filed meet and confer declarations in sufficient compliance with both CCP § 430.41 and CCP § 435.5. (Decls., James M. Oldendorph.)

Defendant’s request for judicial notice is granted pursuant to Evidence Code § 452(d).

A demurrer tests the sufficiency of a complaint as a matter of law and raises only questions of law. (Schmidt v. Foundation Health (1995) 35 Cal.App.4th 1702, 1706.) In testing the sufficiency of the complaint, the court must assume the truth of (1) the properly pleaded factual allegations; (2) facts that can be reasonably inferred from those expressly pleaded; and (3) judicially noticed matters. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The Court may not consider contentions, deductions, or conclusions of fact or law. (Moore v. Conliffe (1994) 7 Cal.App.4th 634, 638.) Because a demurrer tests the legal sufficiency of a complaint, the plaintiff must show that the complaint alleges facts sufficient to establish every element of each cause of action. (Rakestraw v. California Physicians Service (2000) 81 Cal.App.4th 39, 43.) Where the complaint fails to state facts sufficient to constitute a cause of action, courts should sustain the demurrer. (C.C.P., § 430.10(e); Zelig v. County of Los Angeles (2002) 27 Cal.App.4th 1112, 1126.)

Sufficient facts are the essential facts of the case "with reasonable precision and with particularity sufficiently specific to acquaint the defendant with the nature, source, and extent of his cause of action.” (Gressley v. Williams (1961) 193 Cal.App.2d 636, 643-644.) "Whether the plaintiff will be able to prove the pleaded facts is irrelevant to ruling upon the demurrer." (Stevens v. Superior Court (1986) 180 Cal.App.3d 605, 609–610.) Under Code Civil Procedure § 430.10(f), a demurrer may also be sustained if a complaint is “uncertain.” Uncertainty exists where a complaint’s factual allegations are so confusing they do not sufficiently apprise a defendant of the issues it is being asked to meet. (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.)

Defendant demurs to Plaintiff’s SAC pursuant to CCP § 430.10(e) on the grounds that the causes of action are barred by the applicable statute of limitations and that the causes of action fail to state facts sufficient to constitute a cause of action. Defendant also demurs to pursuant to CCP § 430.10(f) on the grounds that the causes of action are uncertain.

The applicable statute of limitations in effect at the time of Plaintiff’s claims was Gov. Code, § 12960 which stated:

“(d) No complaint may be filed after the expiration of one year from the date upon which the alleged unlawful practice or refusal to cooperate occurred, except that this period may be extended as follows:

(1) For a period of time not to exceed 90 days following the expiration of that year, if a person allegedly aggrieved by an unlawful practice first obtained knowledge of the facts of the alleged unlawful practice after the expiration of one year from the date of their occurrence.”

“The Government Claims Act (§ 810 et seq.) establishes certain conditions precedent to the filing of a lawsuit against a public entity. As relevant here, a plaintiff must timely file a claim for money or damages with the public entity. (§ 911.2) [....] The failure to timely present a claim for money or damages to a public entity bars the plaintiff from bringing suit against that entity. [....] Claims for personal injury must be presented not later than six months after the accrual of the cause of action, and claims relating to any other cause of action must be filed within one year of the accrual of the cause of action. [....] The deadline for bringing a lawsuit against the public entity after a claim has been acted upon or deemed denied “is a true statute of limitations[.] [....] With certain exceptions (§ 905), the timely filing of a written government claim is an element that a plaintiff is required to prove in order to prevail on his or her cause of action. Thus, a complaint failing to allege facts demonstrating timely presentation of a claim or that such presentation was excused is subject to a general demurrer for not stating facts sufficient to constitute a cause of action.” Willis v. City of Carlsbad (2020) 48 Cal.App.5th 1104, 1118–1119 (internal citations and quotations omitted).

Plaintiff alleges the following: “Plaintiff has exhausted his administrative remedies by filing a charge of discrimination with the Department of Fair Employment and Housing (DFEH), with respect to the Fire Chief denying Plaintiff re-entry to the paramedic program in 2020 and 2021 based on Plaintiff’s protected condition. The DFEH issued Plaintiff a right to sue notice dated on or about October 16, 2021.” (SAC, ¶ 16.)

Plaintiff has failed to allege facts demonstrating when he filed his government claim. Plaintiff alleges when the DFEH issued its right to sue notice: October 16, 2021. Here, however, Plaintiff has alleged that he was first diagnosed with a disability in 2011, and then alleges facts that he suffered an adverse employment action in 2016. As to the first cause of action, facts supporting the year of 2016 as the date of accrual have been alleged by Plaintiff. Thus, a bar based on the statute of limitations is revealed in the SAC. As to the second and third causes of action, it is not certain when and whether Plaintiff gave notice to Defendant regarding the need to accommodate. If the notice had been given sometime in 2011, then, the government claim should have been filed within one year of that date. At a minimum, it appears that Plaintiff has alleged facts demonstrating that Defendant knew of the alleged failure to accommodate and failure to engage in an interactive process no later than 2016, and, again, as noted above, the right to sue notice was issued on October 16, 2021, past the statute of limitations.

Plaintiff now contends that he is only alleging his claims based on the refusal to reinstate Plaintiff which allegedly occurred in 2020 and 2021 and not on any other prior employment action. He now apparently attempts to cast his 2016 adverse employment action as a simple disciplinary action – not related to age or disability discrimination. Plaintiff alleges: “In or about 2016, Plaintiff was removed from the paramedic program by the Fire Chief. At the time of the removal, the Fire Chief cited section 3.2 of the Memorandum of Understanding (“MOU”) between the City and the Fire Fighters Association. This specific section of the MOU relates to notification of a reassignment for disciplinary reasons. The Fire Chief’s notice goes on by stating the decision to reassign Plaintiff was based on violations of rules and regulations.” (SAC, ¶ 12.) However, Plaintiff has now omitted a key allegation which was included in the FAC. Plaintiff previously alleged in the FAC: “In or about 2016, Plaintiff was removed from the paramedic program by the Fire Chief, resulting in a significant financial loss of pay, pension benefits, as well as his reputation. In the discussion with the Fire Chief over the removal, the Plaintiff and Fire Chief discussed the Plaintiff’s protected condition.” (FAC, ¶ 12 (emphasis added).)

Under the sham pleading doctrine, a pleader cannot circumvent prior admissions by amending a pleading without explanation.” Womack v. Lovell (2015) 237 Cal.App.4th 772, 787. Here, Plaintiff has not adequately explained this key omission of a prior admission which definitively showed that Plaintiff had pled that he knew or had reason to suspect that his adverse employment action in 2016 stemmed from discrimination due to his protected condition.

Further, Plaintiff’s additional allegations in the SAC make clear that Plaintiff pled that he knew or should have known that the adverse employment action stemmed from potential discrimination in 2016.

Plaintiff alleges the following: “After time going by, Plaintiff having treated his protected condition, Plaintiff formally requested in 2020 and again in 2021 to return to the paramedic program. Plaintiff made these formal requests to the Fire Chief in the presence of others. In response to these requests, and on multiple occasions, the Fire Chief would ask Plaintiff in the presence of others about his protected condition and whether the Plaintiff could guarantee that his protected condition would not resurface again. It became clear that the Fire Chief removed Plaintiff from the paramedic program as a result of the Plaintiff’s protected condition, and more importantly, conditioned the return to the program on receipt of a guarantee that it would not surface again in the future. Plaintiff and the Fire Chief had multiple discussions in the presence of others that Plaintiff was currently able to perform the role of paramedic, but that he was being denied the position due to his past protected conditions and/or being regarded as currently having protected conditions and/or a belief that the protected conditions may return in the future. In addition, in these same conversations, the Fire Chief stated that “some older personnel maybe should leave”, referring to Plaintiff and others who had been tenured employees. Consequently, Plaintiff was denied various paramedic assignments due to illegal discrimination by the Fire Chief and the City due to Plaintiff’s protected condition and age.” (SAC, ¶¶ 13-14 (emphasis added).)

While Plaintiff attempts to frame these allegations as a new act of discrimination occurring in 2020 and 2021 which began a new accrual date, in fact, the allegations only crystallize that Plaintiff should have known that the prior adverse employment action stemmed from Plaintiff’s protected condition and not some non-related disciplinary procedure. For example, if the 2016 adverse employment action actually resulted from the non-protected condition disciplinary procedure, the Chief's conversations with Plaintiff in 2020 and 2021 would have involved Plaintiff refraining from whatever act resulted in the disciplinary procedure rather than a discussion regarding his protected conditions. Plaintiff’s allegations in the FAC, in which the parties discussed Plaintiff’s protected condition in 2016 and then the Chief again questioning Plaintiff about the protected condition in 2020 and 2021 show that the accrual date, as pled by Plaintiff, was 2016.

“Generally, a cause of action accrues when [it] is complete with all of its elements[.][....] An exception to this rule is the continuing violation doctrine. The continuing violation doctrine aggregates a series of wrongs or injuries for purposes of the statute of limitations, treating the limitations period as accruing for all of them upon commission or sufferance of the last of them. Consequently, the continuing violation doctrine allows liability for unlawful ... conduct occurring outside the statute of limitations if it is sufficiently connected to unlawful conduct within the limitations period. For the continuing violation doctrine to apply, a plaintiff must show the defendant engaged in a pattern of reasonably frequent and similar acts [that] may, in a given case, justify treating the acts as an indivisible course of conduct actionable in its entirety, notwithstanding that the conduct occurred partially outside and partially inside the limitations period. [¶] Unlike equitable tolling, the continuing tort/continuing violation theory affects a cause of action's accrual.[....] [A] court must consider whether the employer's actions (1)...[were] sufficiently similar in kind—recognizing ... that similar kinds of unlawful employer conduct, such as acts of harassment or failures to reasonably accommodate disability, may take a number of different forms [citation]; (2) have occurred with reasonable frequency; (3) and have not acquired a degree of permanence.” Willis v. City of Carlsbad (2020) 48 Cal.App.5th 1104, 1124–1125 (internal citations and quotations omitted).

With the opposition to the demurrer, Plaintiff now argues that the continuing violation doctrine does not, in fact, apply. Thus, the Court will not address this aspect with the ruling to this demurrer but does refer the parties back to the Court’s ruling to the demurrer to the FAC.

The Court also notes the following uncertainties and defects within the individual causes of action.

First Cause of Action for Discrimination in Violation of FEHA (California Government Code § 12940(a))

[I]n disability discrimination cases, the threshold issue is whether there is direct evidence that the motive for the employer's conduct was related to the employee's physical or mental condition. [A] plaintiff alleging disability discrimination can establish the requisite employer intent to discriminate by proving (1) the employer knew that plaintiff had a physical condition that limited a major life activity, or perceived him to have such a condition, and (2) the plaintiff's actual or perceived physical condition was a substantial motivating reason for the defendant's decision to subject the plaintiff to an adverse employment action.” Glynn v. Superior Court (2019) 42 Cal.App.5th 47, 53.

“[A] prima facie case, of age discrimination arises when the employee shows (1) at the time of the adverse action he or she was 40 years of age or older, (2) an adverse employment action was taken against the employee, (3) at the time of the adverse action the employee was satisfactorily performing his or her job and (4) the employee was replaced in his position by a significantly younger person.” Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1003.

Plaintiff is attempting to allege two theories of discrimination – disability and age. To the extent that Plaintiff is attempting to allege a theory based on age, Plaintiff has failed to allege facts to meet the requisite elements listed above. Instead, Plaintiff merely sets forth a purported stray remark noted above regarding “older personnel maybe should leave.” The mere pleading of this stray remark does not satisfy the elements noted above.

Second Cause of Action for Failure to Accommodate in Violation of FEHA (California Government Code § 12940(m))

“Subdivision (m)(1) of section 12940 makes it unlawful [f]or an employer ... to fail to make reasonable accommodation for the known physical or mental disability of an ... employee. Nothing in this subdivision or in paragraph (1) or (2) of subdivision (a) shall be construed to require an accommodation that is demonstrated by the employer or other covered entity to produce undue hardship, as defined in subdivision (u) of Section 12926, to its operation. [¶] There are three elements to a failure to accommodate action: (1) the plaintiff has a disability covered by the FEHA; (2) the plaintiff is a qualified individual (i.e., he or she can perform the essential functions of the position); and (3) the employer failed to reasonably accommodate the plaintiff's disability.” Hernandez v. Rancho Santiago Community College District (2018) 22 Cal.App.5th 1187, 1193–1194.

“An employee cannot demand clairvoyance of his employer. Where the disability, resulting limitations, and necessary reasonable accommodations, are not open, obvious, and apparent to the employer, ... the employee bears the burden to specifically identify the disability and resulting limitations, and to suggest the reasonable accommodations.” Doe v. Department of Corrections & Rehabilitation (2019) 43 Cal.App.5th 721, 738–739 (internal citations and quotations omitted; emphasis in original).

Here, Plaintiff has failed to allege facts demonstrating notice and a request for accommodation, and facts to show that he would have been able to perform the essential functions of the position.

Third Cause of Action for Failure to Engage in Interactive Process in Violation of FEHA (California Government Code § 12940(n))

“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.” Wilson v. County of Orange (2009) 169 Cal.App.4th 1185, 1195. Similar to the defects noted above, Plaintiff has failed to allege facts to demonstrate that Plaintiff ever gave notice to Defendant of the need for accommodation and requested a reasonable accommodation.

The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. CCP § 436(a). The court may also strike all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. CCP § 436(b). The grounds for a motion to strike are that the pleading has irrelevant, false or improper matter, or has not been drawn or filed in conformity with laws. CCP § 436. The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. CCP § 437.