Judge Holly J. Fujie, Case Number: 22STCV08433, Date: 2023-08-17 Tentative Ruling

DEPARTMENT 56 JUDGE HOLLY J. FUJIE, LAW AND MOTION RULINGS. The court makes every effort to post tentative rulings by 5.00 pm of the court day before the hearing. The tentative ruling will not become the final ruling until the hearing [see CRC 3.1308(a)(2)], and are also available in the courtroom on the day of the hearing [see CRC 3.1308(b)]. If the parties wish to submit on the tentative ruling and avoid a court appearance, all counsel must agree and choose which counsel will give notice. That counsel must 1) call Dept 56 by 8:30 a.m. on the day of the hearing (213/633-0656) and state that all parties will submit on the tentative ruling, and 2) serve notice of the ruling on all parties. If any party declines to submit on the tentative ruling, then no telephone call is necessary and all parties should appear at the hearing in person or by Court Call. Court reporters are not provided, and parties who want a record of motions and other proceedings must hire a privately retained certified court reporter.

This action arises out of an employment relationship. The currently operative second amended complaint (the “SAC”) alleges: (1) discrimination; (2) harassment; (3) retaliation; (4) failure to prevent retaliation/harassment/discrimination; (5) violation of the Family Medical Leave Act; (6) failure to accommodate; and (7) failure to engage in good faith interactive process.

In relevant part, the SAC alleges: Moving Defendant mistreated Plaintiff due to her disability. (See, e.g., SAC ¶¶ 8-11.) When Plaintiff returned to work after taking leave to treat workplace injuries, she was assigned to a light duty position. (See SAC ¶¶ 8-9.) When Plaintiff’s work restrictions became permanent, Plaintiff’s supervisors, Toyea Sims (“Sims”) and Kim Pickett (“Pickett”), reassigned Plaintiff to a lower paying position. (SAC ¶ 10.) When they reassigned her, Sims and Pickett informed Plaintiff that she would face termination if she did not accept the lower paying position. (Id.)

Moving Defendant filed a motion for judgment on the pleadings (the “Motion”) to the second cause of action on the grounds that the SAC fails to state sufficient facts to allege a harassment claim under the Fair Employment and Housing Act (“FEHA”).^{^[1]}

Under California Code of Civil Procedure (“CCP”) section 438, subdivision (c)(1)(B), a defendant may move for judgment on the pleadings if the complaint does not state facts sufficient to constitute a cause of action against that defendant. (CCP § 438, subd. (c)(1)(B).) The standard for granting a motion for judgment on the pleadings is essentially the same as that applicable to a general demurrer. (Burnett v. Chimney Sweep (2004) 123 Cal.App.4th 1057, 1064.) The court must assume the truth of all factual allegations in the complaint, along with matters subject to judicial notice. (Wise v. Pacific Gas & Electric Co. (2005) 132 Cal.App.4th. 725, 738.) The court must view the allegations in the light most favorable to the plaintiff. (Edwards v. Centex Real Estate Corp. (1997) 53 Cal.App.4th 15, 28.)

Employers may not harass an employee because of race, religious creed, color, national origin, ancestry, physical¿disability, mental¿disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status. (Gov. Code § 12940,¿subd. (j)(1).) The elements of a cause of action for harassment under FEHA are: (1) plaintiff belongs to a protected group; (2) plaintiff was subjected to harassment; (3) the harassment complained of was based on the plaintiff’s membership in the protected group; (4) the harassment complained of was sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment; and (5)¿respondeat¿superior. (Jones v. Department of Corrections & Rehabilitation¿(2007) 152 Cal.App.4th 1367, 1377.)

Whether the conduct complained of is sufficiently pervasive must be determined “from the totality of the circumstances.” ¿(Fisher v. San Pedro Peninsula Hospital¿(1989) 214 Cal.App.3d 590, 609.) The plaintiff must prove that the defendant’s conduct would have interfered with a reasonable employee's work performance and would have seriously affected the psychological well-being of a reasonable employee and that she was actually offended. (Id.¿at 609-10.)¿ Harassment typically does not include conduct necessary for management of the employer’s business or performance of the supervisory employee’s job. (Reno v. Baird¿(1998) 18 Cal.4th 640, 647.) Rather, harassment consists of conduct outside the scope of necessary job performance, conduct presumably engaged in for personal gratification for meanness or bigotry, or for other personal motives. (Id.)¿ Some¿official employment actions done in furtherance of a supervisor’s managerial role, however, can also have a secondary effect of communicating a hostile message. (Roby v. McKesson (2009) 47 Cal.4th 686, 709.) This occurs when the actions establish a widespread pattern of bias. (Id.) Accordingly, commonly necessary personnel management actions can support a¿harassment action if the evidence of biased personnel management actions is relevant to prove the communication of a hostile message. (See id.)

Plaintiff’s harassment claim is based solely on alleged personnel decisions made by Sims and Pickett in response to Plaintiff’s disability. These allegations do not convey that Plaintiff’s supervisors’ alleged conduct had the secondary effect of communicating a hostile message, or otherwise created an intimidating and hostile work environment. (See Roby v. McKesson,¿supra, 47 Cal.4th at 709; Gov. Code § 12940, subd. (j).) Plaintiff has not presented facts that indicate that the deficiencies of the claim may be cured by amendment. Further, the Court’s March 23, 2023 order sustaining the demurrer that Sims and Pickett jointly filed to the SAC’s harassment claim granted Plaintiff 20 days leave to amend the claim. Although the March 23, 2023 order indicated that the Court would consider denying Plaintiff additional leave to amend if the harassment claim was subsequently successfully challenged, Plaintiff did not thereafter file an amended pleading. The Court therefore GRANTS the Motion without leave to amend.

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

[1] The second cause of action was previously alleged against Sims and Pickett in addition to Moving Defendant. Plaintiff dismissed Sims and Pickett from the second cause of action on April 21, 2023. Prior to their dismissal, the Court sustained two unopposed demurrers that Sims and Pickett jointly filed.