Judge Holly J. Fujie, Case 22STCV28299 2023-04-06 Tentative Ruling

This action arises out of an employment relationship. The currently operative first amended complaint (the “FAC”) alleges: (1) discrimination, harassment, and retaliation in violation of the Fair Employment and Housing Act (“FEHA”); (2) failure to accommodate in violation of FEHA; (3) failure to engage in the interactive process in violation of FEHA; (4) failure to prevent discrimination and harassment; and (5) retaliation in violation of FEHA.

In relevant part, the FAC alleges: Plaintiff began working for Moving Defendant in 1995. (FAC ¶ 8.) Plaintiff, who is a disabled 63-year-old African American man, was harassed because of his race, ancestry, color, disability, gender, and age during his employment. (FAC ¶¶ 11, 17-21.) At some point during his employment, Plaintiff was diagnosed with a back condition, and in 2019, Plaintiff requested accommodations for his disability. (FAC ¶ 32.) Plaintiff’s required accommodations consisted of ergonomics for his work truck and office area. (FAC ¶ 33.) Plaintiff filed County Policy of Equity (“CPOE”) complaints on December 2, 2022, March 30, 2021, July 12, 2021, September 14, 2021, and September 27, 2021 (collectively, the “CPOE Complaints”). (See FAC ¶¶ 36-40.)^{^[1]} Moving Defendant did not take any corrective actions after investigating any of the CPOE Complaints. (See id.)

In 2020, Steve Milewski (“Milewski”) revoked Plaintiff’s ergonomic accommodations, which prompted Plaintiff to file a further CPOE Complaint. (FAC ¶¶ 42-43.)^{^[2]} After he filed the CPOE Complaints, Plaintiff was placed under heightened surveillance by Milewski in a manner that was distinct from the level of monitoring Plaintiff’s white, non-disabled, younger, female colleagues are subjected to. (See FAC ¶¶ 44-26.) In addition, in July 2021, Plaintiff was reassigned to a reporting location other than the location he requested, in contrast to his white, non-disabled, younger, female coworkers, who were reassigned to their locations of choice. (FAC ¶ 49.)^{^[3]}

Moving Defendant filed a demurrer (the “Demurrer”) to the FAC on the grounds that the FAC fails to state facts sufficient to constitute a cause of action and is uncertain. Moving Defendant also filed a motion to strike (the “Motion”) portions of the FAC.

Moving Defendant’s Request for Judicial Notice is GRANTED as to the existence of the documents, but not to the truth of the matters stated therein. (See Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 113.)

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.)

To establish a claim for discrimination in violation of FEHA, the plaintiff must generally prove that: (1) he or she was a member of a protected class; (2) he or she was qualified for the position he or she sought or was performing competently in the position he or she held; (3) he or she suffered an adverse employment action, such as termination, demotion, or denial of an available job; and (4) some other circumstance suggesting discriminatory motive. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 355.)

The FAC is not clear as to the scope of the first cause of action and alleges broadly that Moving Defendant’s conduct constitutes discrimination, harassment, and retaliation, but does not specify which alleged actions constitute the bases for statutory liability.[4] The Court therefore SUSTAINS the Demurrer to the first cause of action with 20 days leave to amend.

Second and Third Causes of Action: Reasonable Accommodation/Interactive Process

FEHA prohibits an employer from failing to make reasonable accommodations for the known physical and mental disabilities of an employee. (Gov. Code § 12940, subd. (m).) The elements of a failure to accommodate claim are: (1) the plaintiff has a disability under FEHA; (2) the plaintiff is qualified to perform the essential functions of the position; and (3) the employer failed to reasonably accommodate the plaintiff's disability. (Lui v. City and County of San Francisco (2012) 211 Cal.App.4th 962, 971.) A “reasonable accommodation” means a modification or adjustment to the workplace that enables the employee to perform the essential functions of the job held or desired. (Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1010.) Two principles underlie a cause of action for failure to provide a reasonable accommodation: (1) first, the employee must request an accommodation; and (2) second, the parties must engage in an interactive process regarding the requested accommodation and, if the process fails, responsibility for the failure rests with the party who failed to participate in good faith. (Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34, 54.) Once a reasonable accommodation has been granted, then the employer has a duty to provide that reasonable accommodation. (Brown v. Los Angeles Unified School District (2021) 60 Cal.App.5th 1092, 1109.)

FEHA imposes an additional duty on the employer to engage in a timely, good faith, interactive process with the employee to determine effective reasonable accommodations. (Wilson v. County of Orange (2009) 169 Cal.App.4th 1185, 1193.) An employer's failure to engage in this process is a separate FEHA violation. (Id.)

The FAC alleges that Plaintiff was granted accommodations in the form of ergonomically designed work equipment that was subsequently taken away. There are no allegations that Moving Defendant did not engage in the interactive process when Plaintiff first requested the accommodation in 2019; the FAC therefore does not sufficiently allege failure to engage in the interactive process. (See Brown v. Los Angeles Unified School District (2021) 60 Cal.App.5th 1092, 1109.) The FAC does, however, allege that Moving Defendant ultimately failed to provide Plaintiff with his requested accommodation. The Court therefore OVERRULES the Demurrer to the second cause of action for failure to provide reasonable accommodation and SUSTAINS the Demurrer to the third cause of action for failure to engage in the interactive process with 20 days leave to amend.

Fourth Cause of Action: Failure to Prevent Discrimination and Harassment under FEHA

It is an unlawful employment practice for 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. (Gov. Code § 12940, subd. (k).) To establish this claim, a plaintiff must establish the defendant’s legal duty of care, breach of duty, legal causation, and damages to the plaintiff. (See Trujillo v. North County Transit District (1998) 63 Cal.App.4th 280, 286-87.)

Because the FAC does not sufficiently allege discrimination or harassment, the Court SUSTAINS the Demurrer to the fourth cause of action with 20 days leave to amend.

The elements of a cause of action for a FEHA retaliation claim are: (1) the employee's engagement in a protected activity; (2) retaliatory animus on the part of the employer; (3) an adverse action by the employer; (4) a causal link between the retaliatory animus and the adverse action; (5) damages; and (6) causation. (Brown v. Los Angeles Unified School District (2021) 60 Cal.App.5th 1092, 1105.)

Based on the allegations in the FAC, it is unclear what allegedly protected activity forms the basis for the retaliation claim. The FAC alleges that only the September 14, 2021 CPOE Complaint was based on Moving Defendant’s mistreatment of Plaintiff due to his membership in a protected class; the grounds for the remainder of the CPOE Complaints are not alleged. The FAC alleges that the allegedly retaliatory conduct occurred before Plaintiff filed the September 14, 2021 CPOE Complaint. The Court therefore SUSTAINS the Demurrer to the sixth cause of action with 20 days leave to amend.

Under California Code of Civil Procedure (“CCP”) section 436, a motion to strike either: (1) strikes any irrelevant, false or improper matter inserted in any pleading; or (2) strikes any pleading or part thereof not drawn or filed in conformity with the laws of this state, a court rule or order of court. (CCP § 436.)

The Motion seeks to strike portions of the FAC that concern allegations that concern Moving Defendant’s failure to promote Plaintiff prior to Plaintiff’s disability as well as allegations for damages under CCP section 1021.5, injunctive relief, and prejudgment interest.

Based on the Court’s consideration of the Demurrer, the Court finds that the Motion is MOOT with respect to the substantive allegations of discrimination that Moving Defendant contends are time-barred. Plaintiff does not raise arguments regarding the allegations for injunctive relief and prejudgment interest and the Court finds that Plaintiff has conceded these issues to Moving Defendant under Nelson v. Pearson Ford Co. (2010) 186 Cal.App.4th 983, 1021.

Under CCP section 1021.5, upon motion, a court may award attorney’s fees to a successful party against one or more opposing parties in any action which has resulted in the enforcement of an important right affecting the public interest if: (a) a significant benefit, whether pecuniary or nonpecuniary, has been conferred on the general public or a large class of persons; (b) the necessity and financial burden of private enforcement, or of enforcement by one public entity against another public entity, are such as to make the award appropriate; and (c) such fees should not in the interest of justice be paid out of the recovery, if any. (CCP § 1021.5.)

Plaintiff has not demonstrated that the litigation of this action confers a significant benefit on the general public. Moreover, Plaintiff is not precluded from requesting leave to seek damages under CCP section 1021.5 later in the litigation. (See Snatchko v. Westfield LLC (2010) 187 Cal.App.4th 469, 497.) The Court therefore GRANTS the Motion with 20 days 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 FAC alleges that Plaintiff’s September 14, 2021 CPOE Complaint alleged “inappropriate conduct based on a protected characteristic.” (FAC ¶ 39.) The bases for the remainder of the CPOE Complaints are not detailed in the FAC.

[2] The allegations in the FAC suggest that Milewski occupied a managerial role, although FAC does not clearly describe the nature of Milewski’s role within Moving Defendant’s hierarchy or his authority vis a vis Plaintiff’s employment.

[3] The FAC also alleges that throughout his employment, Plaintiff’s position was misclassified and as a result, Plaintiff was denied compensation and opportunities for advancement that were afforded to his white and female coworkers, although these allegations appear to predate Plaintiff’s alleged disability and seem distinct from the alleged disability discrimination and retaliation at the heart of the FAC. (See FAC ¶¶ 23-31.)

[4] Although the FAC also alleges retaliation as a separate cause of action, the FAC does not include a harassment cause of action. Harassment under FEHA is a cause of action that is distinct from discrimination. (See Gov. Code § 12940,¿subd. (j)(1).)