Judge Holly J. Fujie, Case Number: 23STCV21084, Date: 2024-01-04 Tentative Ruling

This action arises out of an employment relationship. Plaintiff’s complaint (the “Complaint”) alleges: (1) race discrimination in violation of the Fair Employment and Housing Act (“FEHA”); (2) harassment on the basis of race in violation of FEHA; (3) religious discrimination in violation of FEHA; (4) retaliation in violation of FEHA; (5) failure to prevent race discrimination, harassment, and retaliation in violation of FEHA; and (6) wrongful termination in violation of public policy.

In relevant part, the Complaint alleges: Plaintiff, who is Black and a Jehovah’s Witness, worked as a paralegal for Moving Defendant from December 7, 2020 through December 11, 2022. (See Complaint ¶¶ 14, 33, 44.) Kelly L. Dingwell (“Dingwell”) was Plaintiff’s immediate supervisor during her employment. (Complaint ¶ 16.)

One to three months after beginning her employment, after making a minor error, Plaintiff was demoted from performing paralegal duties to performing legal assistant duties, and was not permitted to resume paralegal duties until approximately October 2022. (Complaint ¶¶ 21, 25.) Alexis Angel (“Angel”), a legal assistant, was assigned to perform Plaintiff’s paralegal duties after Plaintiff’s demotion. (Complaint ¶ 24.)

Throughout her employment, Plaintiff noticed that she received less favorable treatment than Angel, who is Mexican. (See Complaint ¶¶ 28, 31-32.) For example, Angel was assigned eight-hour shifts while Plaintiff worked five-hour shifts. (See Complaint ¶ 28.) After Dingwell sought input from Plaintiff and Angel for pictures to display in the office, Dingwell decided to exhibit the images of white and Latina women that she and Angel selected, to the exclusion of the image of a Black woman that Plaintiff recommended. (Complaint ¶ 32.)

At some point, Dingwell asked Plaintiff to complete a calendar that included holidays. (Complaint ¶ 33.) Dingwell insisted that Plaintiff complete the task after Plaintiff voiced her concern about the task due to her religious beliefs. (Id.)

During Plaintiff’s employment, Dingwell made disparaging comments in order to demean or ridicule her, which impacted Plaintiff’s experience in the workplace. (See Complaint ¶¶ 29-31.)

In December 2022, Plaintiff was reprimanded for an error made by Angel. (Complaint ¶ 37.) When Plaintiff attempted to address her concerns with Dingwell on or about December 11, 2022, Dingwell terminated Plaintiff’s employment. (Complaint ¶ 39.)

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

Moving Defendant’s Request for Judicial Notice filed in support of its reply papers is DENIED.

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.)

It is an unlawful employment practice for an employer to refuse to hire or employ a person, to discharge a person from employment, or to discriminate against the person in compensation or in terms, conditions, or privileges of employment on the basis of race or religious creed. (See Gov. Code, § 12940, subd. (a).)

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 Court finds that the Complaint sufficiently alleges discrimination on the basis of race. The Complaint alleges that Plaintiff was subjected to differential treatment that favored her non-Black colleagues, and that this treatment led to her demotion and termination. In contrast, the Court finds that the Complaint does not allege sufficient facts to allege discrimination on the basis of religion. While the Complaint alleges that Dingwell urged Plaintiff to complete a task after Plaintiff communicated that the task raised a religious conflict, there are no allegations that Plaintiff experienced an adverse employment action due to this interaction. Furthermore, the Complaint does not identify the FEHA provision that governs failure to accommodate religious beliefs as the basis for the claim.[1]

Based on the foregoing, the Court OVERRULES the Demurrer to the first cause of action and SUSTAINS the Demurrer to the third cause of action with 20 days leave to amend.

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) the plaintiff belongs to a protected group; (2) the 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 court looks to the totality of the circumstances to determine that a hostile work environment existed. (Etter v. Veriflo Corp. (1998) 67 Cal.App.4th 457, 466.) A court looks at: (1) the frequency of harassment; (2) the severity of harassment; (3) whether the conduct was threatening, humiliating, or merely an offensive utterance; and (4) did the harassment interfere with a plaintiff’s work performance. (Id.)

The Court finds that the Complaint lacks allegations that provide a clear nexus between the vaguely identified harassing comments made by Dingwell and a discriminatory motive. The Court therefore SUSTAINS the Demurrer to the second 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.)

As alleged, the FEHA retaliation claim is based on Plaintiff’s demotion and later termination. (See Complaint ¶¶ 102-103.) The Court finds that the Complaint does not sufficiently allege Plaintiff’s participation in a protected activity. The Complaint alleges that Plaintiff’s demotion was based on performance, and there are no allegations that link the demotion to any complaints Plaintiff raised about her treatment in the workplace. Further, the Complaint does not specify that the concerns Plaintiff articulated before her termination implicated the categories of workplace conduct proscribed by FEHA. The Court therefore SUSTAINS the Demurrer to the fourth cause of action with 20 days leave to amend.

Fifth 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.)

In light of the Court’s ruling on the first cause of action, the Court OVERRULES the Demurrer to the fifth cause of action.

The elements of a claim for wrongful discharge in violation of public policy are: (1) an employer-employee relationship, (2) the employer terminated the plaintiff’s employment, (3) the termination was substantially motivated by a violation of public policy, and (4) the discharge caused the plaintiff harm. (Nosal-Tabor v. Sharp Chula Vista Medical Center (2015) 239 Cal.App.4th 1224, 1234-35.) A discharge is actionable as against public policy if it violates a policy that is: (1) delineated in either constitutional or statutory provisions; (2) public in the sense that it inures to the benefit of the public rather than serving merely the interests of the individual; (3) well-established at the time of discharge; and (4) substantial and fundamental. (Id. at 1238-39.)

The Complaint does not allege facts that link Plaintiff’s ultimate termination to any unlawful conduct under FEHA. 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.)

Under Civil Code section 3294, subdivision (a), a plaintiff may recover punitive damages in an action for breach of an obligation not arising from contract when the plaintiff proves by clear and convincing evidence that the defendant has been guilty of oppression, fraud or malice. (Civ. Code § 3294, subd. (a).) Malice is conduct which is intended by the defendant to cause injury to the plaintiff, or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others. (Civ. Code § 3294, subd. (c)(1).) Despicable conduct is conduct which is so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people. (Mock v. Michigan Millers Mutual Ins. Co. (1992) 4 Cal.App.4th 306, 331.) Oppression is defined as despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights. (Civ. Code § 3294, subd. (c)(2).)

To state a prima facie claim for punitive damages, the plaintiff must both allege the elements set forth in Civil Code section 3294 and include specific allegations showing that the defendant’s conduct was oppressive, fraudulent, or malicious. (See Today’s IV, Inc. v. Los Angeles County Metropolitan Transportation Authority (2022) 83 Cal.App.5th 1137, 1193.) Punitive damages may not be pleaded generally. (Id.) In order to survive a motion to strike an allegation of punitive damages, the ultimate facts showing an entitlement to such relief must be pled by a plaintiff. (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.) In passing on the correctness of a ruling on a motion to strike, judges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth. (Id.)

The Court incorporates the analysis of the Complaint set forth with respect to the Demurrer and finds that the viably alleged claims—which involve Plaintiff’s alleged discriminatory demotion—do not include sufficient facts that state a claim for punitive damages. 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] It is an unlawful employment practice to fail to reasonably accommodate a person’s religious practice unless the employer demonstrates that it has explored reasonable alternative means of accommodating the religious belief or observance. (Gov. Code § 12940, subd. (j).) The employee must show that: he or she had a bona fide religious belief that the employer knew conflicted with an employment requirement; (2) the employer did not explore means to reasonably accommodate the religious belief or practice; and (3) the failure to accommodate resulted in an adverse employment action. (See Soldinger v. Northwest Airlines, Inc. (1996) 51 Cal.App.4th 345, 369-71.)