Judge: H. Jay Ford, III, Case: 21SMCV01943, Date: 2022-09-06 Tentative Ruling

Case Number: 21SMCV01943    Hearing Date: September 6, 2022    Dept: O

  Case Name:  Sanchez v. City of Santa Monica, et al.

SUBJECT:               DEMURRER TO COMPLAINT

MOVING PARTY:  Defendant City of Santa Monica

RESP. PARTY:        Plaintiff Alexandra Sanchez

TENTATIVE RULING

            Defendant City of Santa Monica’s Demurrer to the 1^st cause of action for IIED, 5^th cause of action for harassment—hostile work environment and 12^th cause of action for failure to prevent harassment is SUSTAINED WITHOUT LEAVE TO AMEND as to the 1^st cause of action for Intentional Infliction of Emotional Distress (IIED) and OVERRULED as to the 5^th cause of action for harassment—hostile work environment and 12^th cause of action for failure to prevent harassment.  Defendant City’s RJN is GRANTED.  Defendant City to answer in 10 days.

I.  1^st cause of action for IIED—SUSTAINED WITHOUT LEAVE TO AMEND

Govt. Code § 945.4 provides:  “Except as provided in Sections 946.4 and 946.6, no suit for money or damages may be brought against a public entity on a cause of action for which a claim is required to be presented in accordance with Chapter 1 (commencing with Section 900) and Chapter 2 (commencing with Section 910) of Part 3 of this division until a written claim therefor has been presented to the public entity and has been acted upon by the board, or has been deemed to have been rejected by the board, in accordance with Chapters 1 and 2 of Part 3 of this division.” 

“A claim relating to a cause of action for death or for injury to person or to personal property or growing crops shall be presented as provided in Article 2 (commencing with Section 915) not later than six months after the accrual of the cause of action.”  GC §911.2. 

            “The procedural requirements for claim presentation are prerequisites to litigation against a local public entity or employee thereof based not only on tort liability, but on any claim for ‘money or damages.’ (§ 905.) A cause of action that is subject to the statutory claim procedure must allege either that the plaintiff complied with the claims presentation requirement, or that a recognized exception or excuse for noncompliance exists.”  Gong v. City of Rosemead (2014) 226 Cal.App.4th 363, 374.

            “[A] plaintiff may allege compliance with the claims presentation requirement in the Government Claims Act by including a general allegation that he or she timely complied with the claims statute.”  Esparza v. Kaweah Delta Dist. Hosp. (2016) 3 Cal.App.5^th 547, 552 (quoting Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4^th 1228, 1237); Gong, supra, 226 Cal.App.4^th at 374.  Because the claims presentation requirement is a “condition precedent” to filing a complaint against a public entity, CCP §459 applies and under section 459, “[i]n pleading the performance of conditions precedent under a statute ..., it is not necessary to state the facts showing such performance, but it may be stated generally that the party duly performed all the conditions on his part required thereby…”  CCP §459; Perez, supra, 209 Cal.App.4th at 1236. 

            Plaintiff fails to allege that she filed a timely claim within 6-months of accrual of her IIED claim.  Even accepting Plaintiff’s assertion that the IIED claim did not accrue until 10-12-21, when she was forced to transfer to a lower paying job, more than six months have expired from that date.  Plaintiff can no longer file a timely claim.

            Plaintiff argues she filed a claim with DFEH on 3-3-21.  However, Plaintiff was required under Government Code §945.2 to present “a written claim” to the “public entity” against whom Plaintiff is filing a civil suit for money or damages.  Presentation of a claim to the California Department of Fair Employment and Housing does not amount to presentation of a claim to Defendant City of Santa Monica. 

II.  5^th cause of action for harassment—Hostile Work Environment—OVERRULED

            A.  Plaintiff alleges acts that would support a harassment claim based on Cortez’s conduct on 9-30-18 and the City’s ratification of that conduct

            Plaintiff’s 5^th cause of action for harassment is based on Government Code §12940(j)(1) and (j)(3).  “Harassment of an employee…by an employee, other than an agent or supervisor, shall be unlawful if the entity, or its agents or supervisors, knows or should have known of this conduct and fails to take immediate and appropriate corrective action.”  Government Code §12940(j)(1). Pursuant to Government Code §12940(j)(1), “It is an unlawful employment practice…For an employer…or any other person, because of…mental disability, medical condition…sex, gender…to harass an employee….”  Pursuant to Government Code §12940(j)(3), “[a]n employee of an entity subject to this subdivision is personally liable for any harassment prohibited by this section that is perpetrated by the employee, regardless of whether the employer or covered entity knows or should have known of the conduct and fails to take immediate and appropriate corrective action.” 

            “[D]iscrimination refers to bias in the exercise of official actions on behalf of the employer, and harassment refers to bias that is expressed or communicated through interpersonal relations in the workplace.”  Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 707.  “[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. 

“Making a personnel decision is conduct of a type fundamentally different from the type of conduct that constitutes harassment. Harassment claims are based on a type of conduct that is avoidable and unnecessary to job performance. No supervisory employee needs to use slurs or derogatory drawings, to physically interfere with freedom of movement, to engage in unwanted sexual advances, etc. in order to carry out the legitimate objectives of personnel management. Every supervisory employee can insulate himself or herself from claims of harassment by refraining from such conduct. An individual supervisory employee cannot, however, refrain from engaging in the type of conduct which could later give rise to a discrimination claim. Making personnel decisions is an inherent and unavoidable part of the supervisory function. Without making personnel decisions, a supervisory employee simply cannot perform his or her job duties.”  Id. at 646.

Plaintiff alleges that Defendant City investigated the incident with Cortez in bad faith and with the intention of preserving Cortez’s job and penalizing Plaintiff.  See FAC, ¶12. Plaintiff alleges Defendant City’s employees conducted a second pretextual investigation of her based on her Instagram posts.  Id.  Plaintiff alleges Defendant City’s employees refused to temporarily accommodate her disabilities resulting from the stress of the incident with Cortez.  Id.

The alleged conduct does not qualify as harassment, because it is conduct that is unavoidable and necessary to job performance.  Investigations into employee complaints, imposition of penalties or responses to those complaints and review and disposition of applications for disability accommodations are official actions and personnel decisions.  The alleged conduct does not involve “bias that is expressed or communicated through interpersonal relations in the workplace.”  Roby, supra, 47 Cal.4th at 707. 

However, Plaintiff’s harassment/hostile work environment claim is not based solely on the personnel decisions made by Defendant City.  Plaintiff’s harassment/hostile work environment claim is also based on Defendant Cortez’s conduct on 9-30-18. 

Defendant argues Cortez’s 9-30-18 conduct would not qualify as hostile work environment, because it was a single instance of conduct and thereafter, Plaintiff did not interact with him again.  However, a single instance of harassment can create a hostile work environment if the “conduct was severe in the extreme.  A single harassing incident involving physical violence or the threat thereof may qualify as being severe in the extreme.”  See Hughes v. Pair (2009) 46 Cal.4^th 1035, 1043 (discussing sexual harassment).  “Under California’s FEHA, as under the federal law’s Title VII, the existence of a hostile work environment depends upon the totality of the circumstances.”  Id.  For a work environment to be considered hostile, it must be both “objectively and subjectively offensive. Therefore, a plaintiff who subjectively perceives the workplace as hostile or abusive will not prevail if a reasonable person considering all the circumstances, would not share the same perception.”  Id. at 1044. 

Despite being a single, isolated incident on 9-30-18, a reasonable fact finder could find that Cortez’s actions were so severe and extreme to “alter the conditions of employment and create a work environment that qualifies as hostile or abusive to employees because of” the plaintiff’s protected status.  Id. at 1043.  Cortez allegedly threatened to pepper spray Plaintiff, pulled out a loaded gun and placed it on her lap knowing she was deathly afraid of guns due to childhood trauma and drove recklessly with Plaintiff in the car to frighten her.

Defendant relies on Andonissamy v. Hewlett-Packard Co. (2008) 547 F.3d 841 for the proposition that it cannot be held vicariously liable for Cortez’s actions on 9-30-18, because (1) it was a single incident and (2) absent prior knowledge, there was no opportunity for the City to stop the claimed harassment.  According to Andonissamy, “[u]nder Title VII, an employer can be vicariously liable for a hostile work environment created by a supervisor, but is only liable for a hostile work environment created by a co-worker if the employer was negligent in discovering or remedying the harassment.”  Andonissamy, (7th Cir. 2008) 547 F.3d 841, 848. 

“If the employer fails to take corrective action after learning of an employee's sexually harassing conduct, or takes inadequate action that emboldens the harasser to continue hismisconduct, the employer can be deemed to have adopted the offending conduct and its results, quite as if they had been authorized affirmatively as the employer's policy.”  Swenson v. Potter (9th Cir. 2001) 271 F.3d 1184, 1192. 

California FEHA law is in accord.  “Harassment of an employee…by an employee, other than an agent or supervisor, shall be unlawful if the entity, or its agents or supervisors, knows or should have known of this conduct and fails to take immediate and appropriate corrective action.”  Government Code §12940(j)(1).  “When the harasser is a nonsupervisory employee, employer liability turns on a showing of negligence (that is, the employer knew or should have known of the harassment and failed to take appropriate corrective action).”  Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 707.  “Under the FEHA, an employing entity can not only be directly liable for sexual harassment, but indirectly liable as well for the actions of its agents and supervisors or for the actions of its nonsupervisory employees if it was or should have been aware of them and did not take remedial measures.”  Rieger v. Arnold (2002) 104 Cal.App.4th 451, 464. 

Section (j)(1) follows general law regarding employer tort liability based on ratification.  “As an alternative to respondeat superior, an employee may be liable for an employee's act where the employer subsequently ratifies the originally unauthorized tort.  The failure to investigate or respond to charges that an employee has committed an intentional tort or the failure to discharge the employee may be evidence of ratification.  Generally, ratification is a question of fact.”  Samantha B. v. Aurora Vista Del Mar, LLC (2022) 77 Cal.App.5th 85, 109

Defendant City argues it was not negligent in discovering the hostile work environment created by Cortez, because it was a single instance on 9-30-18 and the parties never interacted with one another thereafter.  City ignores the possibilities that (1) a single instance of harassment can qualify as a hostile work environment and (2) an employer can be vicariously liable for an employee’s acts of harassment if it knew of the harassment and “fail[ed] to take immediate and appropriate corrective action.”  Government Code §12940(j)(1); Roby, supra, 47 Cal.4th at 707.  That is precisely what Plaintiff alleges—Plaintiff informed the City of Cortez’s alleged harassment and the City failed to take immediate and appropriate corrective action, i.e. conduct a good faith investigation into her complaint.  Plaintiff claims City ratified Cortez’s actions by conducting a pretextual, bad faith investigation intended from the outset to ensure Cortez did not lose his position and Plaintiff would lose her position.  See Complaint, ¶¶8, 12, 51 and 59. 

Plaintiff sufficiently alleges conduct that could qualify as harassment based on Cortez’s actions on 9-30-18.  Plaintiff also alleges facts that would make Defendant City liable for Cortez’s actions under (j)(1) based on their bad faith, pretextual investigation into Plaintiff’s complaint despite knowledge of Cortez’s actions.  See Complaint, ¶¶8, 12, 51, 59.

B.  Defendant City fails to establish that Plaintiff’s 5^th cause of action is barred by the defense of failure to exhaust administrative remedies

            “An employee who wishes to file suit under the FEHA must exhaust the administrative remedy provided by the statute by filing a complaint with the DFEH, and must obtain from the DFEH a notice of right to sue.  The timely filing of an administrative complaint before the DFEH is a prerequisite to the bringing of a civil action for damages.  The administrative exhaustion requirement is satisfied if FEHA claims in a judicial complaint are like and reasonably related to those in the DFEH complaint or likely to be uncovered in the course of a DFEH investigation.”  Guzman v. NBA Automotive, Inc. (2021) 68 Cal.App.5th 1109, 1118.

Defendant City argues Plaintiff failed to file a claim with FEHA within a year of Cortez’s alleged harassment of Plaintiff on 9-30-18.  Defendant argues that, based on the 2019 version of Government Code §12960(d), “[n]o complaint may be filed after the expiration of one year from the date upon which the alleged unlawful practice or refusal to cooperate occurred…”  Plaintiff filed her claim with FEHA on 12-21-20, more than two years after the 9-30-18 incident with Cortez.  See Defendant’s RJN, Ex. 2.

However, Plaintiff seeks to hold City liable based on City’s ratification of Cortez’s actions on 9-30-18.  Plaintiff alleges these acts of ratification include its failure to investigate Plaintiff’s complaint against Cortez in good faith.  Plaintiff alleges that the City did not complete its investigation into both Cortez’s and Plaintiff’s complaint until 9-24-19.  See Plaintiff’s Complaint, ¶12(jj). 

Defendant City does not address when the limitations period to file a FEHA claim based on the City’s vicarious liability for Cortez’s actions began to run. Defendant City assumes Plaintiff’s vicarious liability claim against the City had to be filed within a year of Cortez’s alleged harassment of Plaintiff. 

However, Plaintiff had no cause of action against the City based on its bad faith investigation of her complaint until after the investigation.  That investigation did not close until 9-24-19.  See Complaint, ¶12(jj). 

If Plaintiff’s vicarious liability claim against the City under (j)(1) did not accrue until 9-24-19, Plaintiff had one year to file a FEHA claim under the 2019 version of GC §12960:  “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…” Gov. Code, § 12960.  GC §12960(d) (West 2019). 

However, on 1-1-20, while Plaintiff’s harassment claim against the City based on vicarious liability was still viable, GC §12960 was amended and the deadline to file a claim with FEHA was extended to three years:  “A complaint alleging any other violation of Article 1 (commencing with Section 12940) of Chapter 6 shall not be filed after the expiration of three years from the date upon which the unlawful practice or refusal to cooperate occurred.”  GC §12960(e) (West 2020). 

As such, Plaintiff arguably had until 9-24-22 to file a claim with FEHA against the City for vicarious liability.  Plaintiff’s 12-20-21 FEHA claim was therefore timely.

Under the 2019 version of GC §12960(d), Plaintiff was required to file a FEHA claim within one year of the the “unlawful practice.” referenced in Government Code §12960(d)(West 2019).  Under the 2020 version of GC §12960(e), Plaintiff was required to file a FEHA claim within three years of the “violation” of Government Code §12940.  Based on Plaintiff’s allegations and under Government Code §12940(j)(1), the City’s “unlawful practice” or “violation” was knowing of Cortez’s alleged harassment and failing to initiate a good faith, legitimate investigation into Plaintiff’s complaint (“immediate and appropriate corrective action”).  Plaintiff would arguably have had until 9-24-22 to file her FEHA claim against the City for vicarious liability for Cortez’s acts of harassment based on ratification.  Plaintiff filed her FEHA claim on 12-20-21, before expiration of that deadline.

In general, affirmative defenses may not be resolved on demurrer unless the defense appears clearly and affirmatively from the face of the complaint. See Asahi Kasei Pharma Corp. v. Actelion Ltd. (2013) 222 Cal.App.4th 945, 963 (quoting Woods v. Fox Broadcasting Sub., Inc. (2005) 129 Cal.App.4th 344, 351). A “demurrer based on an affirmative defense cannot properly be sustained where the action might be barred by the defense, but is not necessarily barred.”  CrossTalk Productions, Inc. v. Jacobson (1998) 65 Cal.App.4th 631, 635.  At best, Plaintiff’s 5^th cause of action for harassment against the City based on vicarious liability might be barred by the defense of exhaustion of administrative remedies, but it is not necessarily barred based on the face of the complaint.  

Based on the complaint allegations and Defendant’s demurrer, the Court cannot say that the FEHA claim filed on 12-20-21 was untimely for purposes of the City’s vicarious liability under GC §12940(j)(1).  Defendant City’s demurrer based on failure to timely file a FEHA claim as to the 5^th cause of action for harassment and failure to exhaust administrative remedies must therefore be overruled.  The Court need not address Plaintiff’s assertion that the continuing violations doctrine renders the purportedly untimely acts timely. 

III.  12^th cause of action for failure to prevent harassment—OVERRULE

            Plaintiff’s 12^th cause of action is based on Government Code §12940(k).  Pursuant to Government Code §12940(k), “It is an unlawful employment practice…tor an employer, labor organization, employment agency, apprenticeship training program, or any training program leading to employment, to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring.”  “One such reasonable step, and one that is required in order to ensure a discrimination-free work environment, is a prompt investigation of the discrimination claim.”  California Fair Employment & Housing Com. v. Gemini Aluminum Corp. (2004) 122 Cal.App.4th 1004, 1024 (employer violated GC §12940(k) when it failed to institute investigation of employee’s complaint of religious discrimination and instead retaliated). 

A claim for failure to prevent harassment cannot be stated where there has been a specific factual finding by a trier of fact that no harassment occurred.  See Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4^th 280, 289 (affirming JNOV in favor of employer defendant; defendant employer could not be found liable for failure to prevent discrimination where jury found no such discrimination occurred). 

            A.  Plaintiff alleges an act of harassment and Defendant’s failure to take all reasonable steps necessary to prevent discrimination and harassment from occurring

            The 12^th cause of action is specifically based on failure to prevent harassment, not failure to prevent discrimination as alleged in the 11^th cause of action.  See Complaint, ¶¶125-127.  As discussed above, Plaintiff has alleged an act of harassment in the 5^th cause of action based on Cortez’s menacing her with a loaded gun, threatening to pepper spray her and driving recklessly to intimidate her on 9-30-18 on the way from a work event.  Unlike Trujillo, there has been no specific factual finding that Cortez did not harass Plaintiff on 9-30-18. 

Plaintiff alleges that Defendant also failed to undertake a good faith investigation into her complaint regarding those events, instead instituting a bad faith, pretextual investigation designed from the outset to ensure that Cortez maintained his position with SMPD while she lost hers.  Plaintiff also alleges Defendant began to retaliate against her for filing the complaint.  A reasonable jury could find that in doing so, Defendant City failed to take all reasonable steps necessary to prevent discrimination and harassment from occurring.  See California Fair Employment & Housing Com. v. Gemini Aluminum Corp. (2004) 122 Cal.App.4th 1004, 1024 (employer violated GC §12940(k) when it failed to institute investigation of employee’s complaint of religious discrimination and instead retaliated). 

            Defendant’s demurrer to the 12^th cause of action for failure to prevent harassment on grounds that no harassment is alleged is OVERRULED. 

            B.  Defendant fails to establish that Plaintiff failed to exhaust administrative remedies prior to filing her claim for failure to present harassment

With regard to the failure to file a timely claim with FEHA, Defendant City assumes that the FEHA claim based on failure to prevent harassment had to be filed within one year of the harassing incident, which occurred on 9-30-18.  Defendant applies the 2019 version of GC §12960(d), which stated, “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…” Gov. Code, § 12960.  GC §12960(d) (West 2019). 

            However, the 12^th cause of action imposes direct liability on the City under GC §12940(k) for its failure to prevent harassment.  Therefore, the “unlawful practice” referenced in GC §12960(d) was the failure to undertake a good faith investigation into Plaintiff’s complaint of harassment, not the harassment itself (Cortez’s actions on 9-30-18).  According to Plaintiff, she did not receive the outcome of the investigation until 9-24-19.  Thus, Plaintiff arguably was not required to file a FEHA claim under the 2019 version of GC §12960(d) until 9-24-20.

While Plaintiff’s claim for failure to prevent was still viable, the Legislature amended GC §12960 on 1-1-20 and extended the deadline to file FEHA claims to three years from the date of the alleged violation of GC §12940.  “A complaint alleging any other violation of Article 1 (commencing with Section 12940) of Chapter 6 shall not be filed after the expiration of three years from the date upon which the unlawful practice or refusal to cooperate occurred.”  GC §12960(e) (West 2020). 

Thus, under GC §12960(e), Plaintiff theoretically had until 9-24-22 to file her FEHA claim for failure to prevent harassment.  Plaintiff filed her FEHA claim on 12-21-20, before expiration of that deadline.  Defendant fails to establish that the 12^th cause of action is barred by the defense of failure to exhaust administrative remedies.  Demurrer to the 12^th cause of action based on failure to exhaust administrative remedies is OVERRULED.