Judge Holly J. Fujie, Case Number: 24STCV01203, Date: 2024-06-05 Tentative Ruling

MOVING PARTY: Defendant The Rector, Wardens and Vestry of The Church of Our Saviour, in San Gabriel, California (Doe 1) (“The Rector”)

On February 23, 2024, Plaintiff filed the operative First Amended Complaint (the “FAC”) against Defendants The Church of Our Saviour; A Child’s Garden School; The Rector; and Does 2-50, inclusive for: (1) Unlawful Retaliation (Whistle Blower – Cal. Labor (“Lab.”) Code § 1102.5); (2) Wrongful Termination in Violation of Public Policy; (3) Race Discrimination in Violation of the Fair Employment and Housing Act (“FEHA”) – Government Code Section 12940 et seq.; (4) Retaliation in Violation of FEHA; (5) Failure To Prevent Race Harassment, Retaliation, And Discrimination in Violation of FEHA; and (6) Discrimination in Violation of Labor Code Section 232.5.

On March 27, 2024, Defendant The Rector filed the instant demurrer (the “Demurrer”). On May 22, 2024, Plaintiff filed an opposition to the Demurrer and on May 29, 2024, The Rector filed a reply.

The Rector requests that the Court take judicial notice of its Articles of Incorporation filed with the California Secretary of State on March 22, 1935.

The Rector’s request for judicial notice is GRANTED, pursuant to Evidence Code section 452, subdivision (c).

Prior to filing a demurrer or a motion to strike, the demurring or moving party is required to meet and confer with the party who filed the pleading demurred to or the pleading that is subject to the motion to strike for the purposes of determining whether an agreement can be reached through a filing of an amended pleading that would resolve the objections to be raised in the demurrer. (Code Civ. Proc., §§ 430.41 and 435.5.)¿¿¿

The Court finds that The Rector sufficiently engaged in the meet and confer process prior to filing the Demurrer.

“The primary function of a pleading is to give the other party notice so that it may prepare its case [citation], and a defect in a pleading that otherwise properly notifies a party cannot be said to affect substantial rights.” (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 240.)¿“A¿demurrer¿tests the legal sufficiency of the factual allegations in a complaint.” (Ivanoff v. Bank of America, N.A.¿(2017) 9 Cal.App.5th 719, 725.) The Court looks to whether “the complaint alleges facts sufficient to state a cause of action or discloses a complete defense.” (Id.) The Court does not “read passages from a complaint in isolation; in reviewing a ruling on a demurrer, we read the complaint ‘as a whole and its parts in their context.’ [Citation.]” (West v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 780, 804.) The Court “assume[s] the truth of the properly pleaded factual allegations, facts that reasonably can be inferred from those expressly pleaded and matters of which judicial notice has been taken.” (Harris, supra, 56 Cal.4th p. 240.) “The court does not, however, assume the truth of contentions, deductions or conclusions of law. [Citation.]” (Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1358.)¿¿¿

¿ A general demurrer may be brought under Code of Civil Procedure section 430.10, subdivision (e) if insufficient facts are stated to support the cause of action asserted or under section 430.10, subdivision (a), where the court has no jurisdiction of the subject of the cause of action alleged in the pleading. All other grounds listed in Section 430.10, including uncertainty under subdivision (f), are special demurrers. Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Id.)¿¿

The Rector demurs to Plaintiff’s entire FAC on the grounds that: (1) all the causes of action causes of action fail to allege all of the elements of such causes of action against The Rector; (2) the second, third, fourth and fifth causes of action fail to state an action against The Rector because non-profit religious organizations and their employees are exempt from FEHA claims; and (3) all the causes of action are uncertain.

Pursuant to Government Code section 12926, subdivision (d), “‘Employer” includes any person regularly employing five or more persons, or any person acting as an agent of an employer, directly or indirectly, the state or any political or civil subdivision of the state, and cities, except as follows: ‘Employer’ does not include a religious association or corporation not organized for private profit.”

Plaintiff concedes that The Rector is a religious entity for purposes of exemption under the FEHA; however, Plaintiff contends that The Rector waived its FEHA religious exemption because it (1) provided and had employees agree to employee handbooks that were consistent with the protections afforded by the FEHA; (2) prominently posted posters required by the FEHA, which also directed employees to contact appropriate California agencies regarding FEHA violations; and (3) consistently provided FEHA anti-discrimination and anti-harassment training. (FAC ¶¶8-12.) Furthermore, Plaintiff argues The Rector is estopped from denying her the protections and relief under the FEHA.

In Matthews v. Happy Valley Conference Center, Inc. (2019) 43 Cal.App.5th 236, the court held that: “[w]aiver is ‘the voluntary relinquishment of a known right, which may be effective as a matter of law without any demonstration that the other party was caused by the waiver to expose [itself] to any harm.’” (Id. at 43 Cal.App.5^th at 257.) The Matthews court held that a handbook that merely states that a religious entity prohibits harassment, discrimination, and retaliation is not enough to constitute a knowing and voluntary waiver of the religious entity exemption. (Id. at 258.) Similarly, a handbook that simply refers to being bound by the “applicable laws” providing equal employment opportunities also fails to constitute a knowing and voluntary waiver of the religious exemption. (Id.)

Similarly, “[t]o support a claim for wrongful termination in violation of public policy, a policy must be ‘delineated in either constitutional or statutory provisions'; it must be ‘ “public” in the sense that it “inures to the benefit of the public” rather than serving merely the interests of the individual’; it must have been well established ‘at the time of the discharge’; and it must be ‘fundamental’ and ‘substantial.’ [Citation.]” (Henry v. Red Hill Evangelical Lutheran Church of Tustin (2011) 201 Cal.App.4th 1041, 1050.) “However, a public policy purportedly tethered to the FEHA statutes does not give rise to a cause of action for a wrongful termination in violation of public policy when the claim would be precluded under the FEHA because the act specifically exempts the defendant from the definition of employer.” (Id.)

The court in Matthews further held on the issue of estoppel: “[w]henever a party has, by his own statement or conduct, intentionally and deliberately led another to believe a particular thing true and to act upon such belief, he is not, in any litigation arising out of such statement or conduct, permitted to contradict it.” (Id.) Thus, in order for a party to be estopped from denying relief to the other party, “(1) the party to be estopped must be apprised of the facts; (2) he must intend that his conduct shall be acted upon, or must so act that the party asserting the estoppel has a right to believe it was so intended; (3) the other party must be ignorant of the true state of facts; and (4) he must rely upon the conduct to his injury.” (Id. [internal quotations omitted].) Also, equitable estoppel is “defensive in nature only” because it “operates to prevent one [party] from taking an unfair advantage of another.” (Id.)

The Court finds that The Rector did not waive its religious entity exemption under FEHA. Neither the FAC’s allegation that The Rector provided Plaintiff and other employees with a handbook that stated employees were protected by the anti-discrimination laws of California nor the allegation that The Rector posted posters identifying FEHA classes and contact information indicates that The Rector knowingly and voluntarily waived its religious exemption.

The TAC’s third, fourth and fifth causes of action are solely based on claims under FEHA and therefore they do not state a valid claim for relief against The Rector. Plaintiff’s second cause of action for wrongful termination, however, is not solely based on EHA claims, as it is also based on Labor Code section 1102.5. As a consequence, the second cause of action does not fail on the basis of the FEHA religious entity exemption and its validity will be analyzed on the other grounds stated in the Demurrer. (FAC ¶¶20, 29.)

The Rector’s Demurrer to the third, fourth and fifth causes of action is SUSTAINED without Leave to Amend.

First Cause of Action for Unlawful Discrimination in Violation of Labor Code section 1102.5

Pursuant to Labor Code section 1102.5, “(b) 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.” (See also, Lab. Code, §§ 1102.5, subd. (c)-(d).)

“To establish a prima facie case of retaliation, the plaintiff ‘must show (1) she engaged in a protected activity, (2) her employer subjected her to an adverse employment action, and (3) there is a causal link between the two.’” (McVeigh v. Recology San Francisco (2013) 213 Cal.App.4th 443, 468.)

The FAC fails to state sufficient facts to support a cause of action under Labor Code section 1102.5. The FAC alleges that Plaintiff was a witness to a co-worker’s discrimination and harassment claims against The Rector. (FAC ¶14.) The FAC also alleges that Plaintiff made repeated complaints that The Rector was understaffed and out of legal compliance ratios. (FAC ¶15.) The FAC further alleges that Plaintiff was not given any reason for her termination on or about May 2023. (FAC ¶¶14-15.) The FAC also alleges that The Rector discriminated and retaliated against Plaintiff because she is Armenian. (FAC ¶16.) Specifically, the FAC alleges Plaintiff was the only one who was micromanaged by other staff who constantly watched her in her classroom. (Id.) The FAC fails to allege, however, what law the legal compliance ratios violated. The FAC also fails to allege a causal link between Plaintiff’s making complaints about the staffing and legal compliance ratios and the purported discrimination she faced, such as the timeframe these actions took place, to gauge if they were close in time.

Therefore, the Demurrer as to the first cause of action is SUSTAINED with 20 days leave to amend.

Plaintiff’s second cause of action is also based on Labor Code section 1102.5. Therefore, the second cause of action also fails to state sufficient facts to support a valid cause of action.

Therefore, the Demurrer to the second cause of action is SUSTAINED with 20 days leave to mend.

Sixth Cause of Action for Discrimination in Violation of Labor Code Section 232.5

Pursuant to Labor Code section 232.5, subdivision (c), no employer may “discharge, formally discipline, or otherwise discriminate against an employee who discloses information about the employer’s working conditions.” (Lab. Code, § 232.5, subd. (c).)

Plaintiff does not address The Rector’s Demurrer to the sixth cause of action. Nevertheless, the Court finds that the FAC fails to state sufficient facts to support the sixth cause of action. The same defects in the first and second cause of action also cause the sixth cause of action to fail.

Therefore, the Demurrer to the sixth cause of action is SUSTAINED with20 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.

Hon. Holly J. Fujie

Judge of the Superior Court