Judge: Holly J. Fujie, Case: 24STCV23710, Date: 2025-01-21 Tentative Ruling

Case Number: 24STCV23710    Hearing Date: January 21, 2025    Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

MOVING PARTY:  Defendants City of Torrance, Jeremiah Hart, Daniel Lee, and Karen Farmer (collectively, “Defendants”)

RESPONDING PARTY: Plaintiff Mark Steven Hassoldt (“Plaintiff”)

            The Court has considered the moving, opposition and reply papers.

BACKGROUND

             This action arises out of an employment relationship. On September 13, 2024, Plaintiff filed the operative complaint (“Complaint”) alleging causes of action for: (1) discrimination based on physical disability [Government Code (“Gov. Code”) § 12940(a)]; (2) harassment based on physical disability [Gov. Code § 12940(j)]; (3) failure to prevent discrimination [Gov. Code § 12940(k); (4) retaliation [Gov. Code § 12940(h); (5) failure to accommodate physical disability [Gov. Code § 12940(m)]; and (6) failure to engage in a good faith interactive process [Gov. Code § 12940(n)].)

            On November 15, 2024, the Court granted Defendants’ ex parte application to deem the demurrer (“Demurrer”) papers filed on the original filing date of November 7, 2024. On December 18, 2024, Plaintiff filed an opposition to the Demurrer (the “Opposition”). On December 24, 2024, Defendants filed a reply (the “Reply”).

MEET AND CONFER

             The parties have satisfied the meet and confer requirement.

DISCUSSION

            A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747; see Code of Civil Procedure (“CCP”) § 430.10, subd. (e).) 

To sufficiently allege a cause of action, a complaint must allege all the ultimate facts—that is, the facts needed to establish each element of the cause of action pleaded. (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 212, superseded by statute as stated in Branick v. Downey Savings & Loan Assn. (2006) 39 Cal.4th 235, 242.) “[E]ach evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged.” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) 

In testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-67.) Courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228, disapproved on other grounds, Jones v. Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158, 1162.) A demurrer, however, “does not admit contentions, deductions or conclusions of fact or law.” (Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713.)  

Second Cause of Action – Harassment Based on Physical Disability [Gov. Code § 12940(j)]

Government Code section 12940, subdivision (j)(1) prohibits harassment of 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 the Fair Employment and Housing Act (“FEHA”) are: (1) plaintiff belongs to a protected group; (2) plaintiff was subject 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.) 

Harassment involves verbal, physical, visual and/or sexual conduct that creates a hostile or offensive working environment. (Cal. Code Regs., tit. 2, § 11019(b).) To establish a hostile work environment, harassment must be sufficiently severe or pervasive to alter the conditions of the plaintiff’s employment and create an abusive working environment. (Fisher v. San Pedro Peninsula Hospital, supra, 214 Cal.App.3d at p. 609.)  “The working environment must be evaluated in light of the totality of the circumstances: ‘whether an environment is “hostile” or “abusive” can be determined only by looking at all the circumstances. These may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.’ ” (Miller v. Dept. of Corrections (2005) 36 Cal.4th 446, 462.)  Generally, negative employment decisions, such as termination or demotion, cannot form the basis of a hostile environment claim and are suited to a discrimination claim.  However, “some office employment actions done in furtherance of a supervisor’s managerial role can also have a secondary effect of communicating a hostile message.  This occurs when the actions establish a widespread pattern of bias.” (Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 707-11 (Roby).) 

            Defendants demur to the second cause of action for harassment because “Plaintiff fails to: (1) allege specific facts establishing that the City and any of the Individual Defendants subjected Plaintiff to harassing comments or abusive conduct, (2) any conduct complained of was based on Plaintiff’s disability, (3) any alleged harassment was severe or pervasive, and (4) any alleged harassment existed outside the scope of personnel management.” (Demurrer, p. 11:19-22.)

Plaintiff alleges disability harassment under FEHA against all Defendants. The Complaint alleges as follows: When Plaintiff learned that he was to be moved from his concealed weapons assignment to the Radio Room, he told a Lieutenant that this assignment would adversely affect his health, and the Lieutenant responded that “shit happens.” (Compl. ¶ 23.)  At the direction of Defendant Hart, Plaintiff was subsequently assigned to the Radio Room. (Compl. ¶ 23.) Plaintiff alleges that working the graveyard shift exacerbated his insomnia and high blood pressure and as a result he “called off” his shifts from time to time. (Compl. ¶ 24.) Defendant “Farmer told Plaintiff that he was taking too much time off in the Radio Room and if Plaintiff continued to do so, she would remove him from that assignment.” (Compl. ¶ 25.) Plaintiff alleges that in June 2024, he was told that he was not allowed to return to work until there was an accommodations meeting and that his disability payments were terminated. (Compl. ¶ 29.) Plaintiff alleges that in June 2024, Plaintiff’s disability payments were reinstated but he only received 75% of the amount to which he was entitled. (Compl. ¶ 32.) The Complaint alleges that “Defendants, and each of them, harassed Plaintiff by continually and pervasively refusing to assign him to light duty positions, assigning him to the Radio Room, terminating his disability benefits and constructively discharging him, as alleged herein.” (Compl. ¶ 47.)

            Defendants argue that Plaintiff has failed to allege any interpersonal conduct, as opposed to employment actions, by the individual Defendants sufficient to state a harassment claim and that the actions Plaintiff alleges are regardless not sufficiently severe or pervasive to constitute actionable harassment. (Demurrer, pp. 11:23-17:4.) In the Opposition, Plaintiff asserts that even a single incident of harassing conduct is sufficient for actionable harassment (Opp. pp. 3:19-5:5), and that employment actions can constitute harassment in violation of the FEHA. (Opp. p. 6:7-25; Roby, supra, 47 Cal.4th at 708.)

            In the Reply, Defendants reiterate that Plaintiff’s allegations amount only to personnel management actions and do not convey a hostile message. (Reply, pp. 2:25-6:15.)

            The Court finds that Plaintiff’s harassment allegations are insufficient to support a cause of action in violation of FEHA. The conduct alleged in the Complaint, assigning Plaintiff to the Radio Room, warning Plaintiff that he would be removed from that assignment if continued to call out from his shifts, and terminating and then reinstating his disability payments at 75% amount only to personnel management actions. In Roby, the plaintiff relied on both harassing conduct and personnel management actions to successfully support her harassment claim. (Roby, supra, 47 Cal.4th at 710.) The Complaint does not plead how Plaintiff’s reassignment was based on Plaintiff’s protected status. The Complaint otherwise does not allege verbal, physical, visual or sexual conduct by Defendants that was severe or pervasive enough to create an abusive working environment for Plaintiff. Thus, the Demurrer to the second cause of action for harassment is SUSTAINED.

            Defendants’ Demurrer is SUSTAINED, with 20 days leave to amend.

Moving Party is ordered to give notice of this ruling.