Judge: Holly J. Fujie, Case: 22STCV26095, Date: 2023-03-01 Tentative Ruling

Case Number: 22STCV26095    Hearing Date: March 1, 2023    Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

MOVING PARTY: Defendants Leticia Vasquez-Wilson (“Vasquez”) and Martha Camacho-Rodriguez (“Camacho”) (collectively, “Moving Defendants”)

RESPONDING PARTY: Plaintiff

The Court has considered the moving and opposition papers.  No reply papers were filed.  Any reply papers were required to have been filed and served at least five court days before the hearing under California Code of Civil Procedure section 1005, subdivision (b).

BACKGROUND

            This action arises out of an employment relationship.  Plaintiff’s complaint (the “Complaint”) alleges: (1) retaliation in violation of Labor Code section 1102.5, subdivision (b); (2) retaliation in violation of Labor Code section 1102.5, subdivision (c); (3) violation of the Tom Bane Civil Rights Act, Civil Code section 52.1 (the “Bane Act”); (4) sex (pregnancy) harassment in violation of the Fair Employment and Housing Act (“FEHA”); (5) FEHA failure to prevent discrimination; and (6) FEHA pregnancy disability leave interference.^[1]

In relevant part, the Complaint alleges: Plaintiff was employed by Defendant Central Basin Municipal Water District (“CBMWD”) as the Director of Administration and Board Services/Board Secretary.  (Complaint ¶ 11.)  Moving Defendants both served as elected directors at CBMWD.  (See Complaint ¶¶ 3-4.)  Plaintiff was retaliated against and ultimately terminated after refusing to follow illegal orders from Moving Defendants and reporting their orders to state and local authorities.  (See Complaint ¶ 14.)  Moving Defendants attempted to pressure Plaintiff into following illegal orders follow illegal directives

Moving Defendants’ conduct began on around January 30, 2020, when Vasquez attempted to force Plaintiff to remain in a meeting that did not satisfy quorum.  (Complaint ¶ 17.)  Plaintiff left the meeting despite the pressure from Vasquez and filed a complaint with human resources.  (Id.)  In February 2020, Plaintiff participated in an interview with the District Attorney to discuss the intimidation she experienced from CBMWD Directors.  (Complaint ¶ 22.) 

At the onset of the COVID-19 pandemic in March 2020, Moving Defendants encouraged members of the public to go to CBMWD offices to harass employees including Plaintiff, who was pregnant at the time, and other CBMWD staff.  (Complaint ¶¶ 28, 30-31.) 

On June 23, 2020, Camacho copied Plaintiff, who by then was in her third trimester, on an email in which she wrote, “Thank you! Awesome can’t wait to see if that heffer [sic] Cecilia does her job.”  (Complaint ¶ 36.) 

In late July 2020, Vasquez demanded that Plaintiff provide Vasquez with her personal cellphone number so that Vasquez could communicate with her.  (Complaint ¶ 39.)  After Plaintiff refused Vasquez, on the basis that the request violated CBMWD’s administrative code and reported the incident to HR, Joey Martinez (“Martinez”) acting on behalf of Moving Defendants, told Plaintiff that he and others planned to come to her house and “protest.”  (Complaint ¶¶ 39-40.)  Later, two men, one of whom may have been Martinez, came to Plaintiff’s home in a gated community.  (Complaint ¶ 41.) 

Plaintiff went on pregnancy disability leave beginning on July 30, 2020.  (Complaint ¶ 56.)  On August 14, 2020, Plaintiff was terminated.  (Complaint ¶ 56.) 

Moving Defendants filed a demurrer (the “Demurrer”) to the first through fourth causes of action on the grounds that the Complaint fails to allege sufficient facts to constitute these causes of action and the allegations underlying the causes of action are uncertain.

DISCUSSION

Meet and Confer

The meet and confer requirement has been met.

Legal Standard

A demurrer tests the sufficiency of a complaint as a matter of law.  (Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1358.)  The court accepts as true all material factual allegations and affords them a liberal construction, but it does not consider conclusions of fact or law, opinions, speculation, or allegations contrary to law or judicially noticed facts.  (Shea Homes Limited Partnership v. County of Alameda (2003) 110 Cal.App.4th 1246, 1254.)  With respect to a demurrer, the complaint must be construed liberally by drawing reasonable inferences from the facts pleaded.  (Rodas v. Spiegel (2001) 87 Cal.App.4th 513, 517.)  A demurrer will be sustained without leave to amend if there exists no reasonable possibility that the defect can be cured by amendment.  (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) 

Demurrers for uncertainty are disfavored and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.  (Lickiss v. Financial Industry Regulatory Authority (2012) 208 Cal.App.4th 1125, 1135.)  A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.  (Chen v. Berenjian (2019) 33 Cal.App.5th 811, 822.)

DISCUSSION

First and Second Causes of Action

Labor Code section 1102.5, subdivision (b) provides that an employer, or any person acting on behalf of the employer, shall not retaliate against an employee for disclosing information, or because the employer believes that the employee disclosed or may disclose information, to a government or law enforcement agency, to a person with authority over the employee or another employee who has the authority to investigate, discover, or correct the violation or noncompliance, or for providing information to, or testifying before, any public body conducting an investigation, hearing, or inquiry, if the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation, regardless of whether disclosing the information is part of the employee's job duties.  (Lab. Code § 1102.5, subd. (b).)  Labor Code section 1102.5, subdivision (c) provides that an employer, or any person acting on behalf of the employer, shall not retaliate against an employee for refusing to participate in an activity that would result in a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation.  (Lab. Code § 1102.5, subd. (c).)  To establish a prima facie case of retaliation, a plaintiff must show that: (1) she engaged in protected activity; (2) that she was thereafter subjected to adverse employment action by her employer; and (3) there was a causal link between the two.  (Morgan v. Regents of University of Cal. (2000) 88 Cal.App.4th 52, 69.)

Moving Defendants argue that they may not be individually liable under Labor Code section 1102.5 because the Complaint does not allege that they were Plaintiff’s employers.  In her opposition (the “Opposition”), Plaintiff argues that Moving Defendants may be personally liable because the statute, as amended in 2014, includes language that specifies that Labor Code section 1102.5 applies to employers or “any person acting on behalf of the employer.”  The Opposition does not, however, cite to any caselaw or legislative history to support Plaintiff’s position.  Federal courts interpreting the statute’s current language have held that liability under Labor Code section 1102.5 does not extend to individual employees.  (See, e.g., United States ex rel. Lupo v. Quality Assurance Services, Inc. (2017) 242 F.Supp.3d 1020, 1030.)  The Court is persuaded by this analysis.  As it does not appear that the Complaint can be amended to allege that Moving Defendants were Plaintiff’s employers in their individual capacities, the Court SUSTAINS the Demurrer to the first and second causes of action without leave to amend.

Third Cause of Action

The Bane Act authorizes an individual to bring an action against another person who, whether or not acting under color of law, interferes or attempts to interfere, “by threat, intimidation, or coercion,” with the individual’s exercise or enjoyment of rights secured by state or federal law.  (Civ. Code § 52.1, subds. (b)-(c).)  To state a claim under the Bane Act, a plaintiff must show: (1) the defendant’s intentional interference or attempted interference with a state or federal constitutional or legal right; and (2) that the defendant’s interference or attempted interference was by threats, intimidation or coercion.  (Allen v. City of Sacramento (2015) 234 Cal.App.4th 41, 67.)  Speech alone is not sufficient to support an action for a Bane Act violation except upon a showing that the speech itself threatens violence against a specific person or group of persons; and the person or group of persons against whom the threat is directed reasonably fears that, because of the speech, violence will be committed against them or their property and that the person threatening violence had the apparent ability to carry out the threat.  (Civ. Code § 52.1, subd. (k).)

The Court finds that the Complaint sufficiently alleges that Moving Defendants violated the Bane Act.  The Complaint alleges that Moving Defendants directed third parties, such as Martinez, to intimidate Plaintiff in order to assert their power and discourage her from disobeying and reporting their directives.  Whether Martinez’s “protests” constitute a sufficient threat of violence is a question of fact beyond the scope of resolution on demurrer.  The Court therefore OVERRULES the Demurrer to the third cause of action.

Fourth Cause of Action

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.)

The fourth cause of action is based on the June 23, 2020 email sent by Camacho wherein Plaintiff is referred to as a heifer.  The Complaint does not allege that this incident altered the conditions of Plaintiff’s employment.  The Court therefore SUSTAINS the Demurrer to the fourth cause of action with 20 days leave to amend.

Moving party is ordered to give notice of this ruling. 

In consideration of the current COVID-19 pandemic situation, the Court¿strongly¿encourages that appearances on all proceedings, including this one, be made by LACourtConnect if the parties do not submit on the tentative.¿¿If you instead intend to make an appearance in person at Court on this matter, you must send an email by 2 p.m. on the last Court day before the scheduled date of the hearing to¿SMC_DEPT56@lacourt.org¿stating your intention to appear in person.¿ The Court will then inform you by close of business that day of the time your hearing will be held. The time set for the hearing may be at any time during that scheduled hearing day, or it may be necessary to schedule the hearing for another date if the Court is unable to accommodate all personal appearances set on that date.¿ This rule is necessary to ensure that adequate precautions can be taken for proper social distancing.

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. 

  Dated this 1st day of March 2023