Judge Holly J. Fujie, Case Number: 24STCV25793, Date: 2025-06-03 Tentative Ruling

MOVING PARTY: Defendants Occidental College (“Occidental”), Maureen Royer (“Royer”), Alicia Cleaver (“Cleaver”), and Suzanne LaCroix (“LaCroix”) (collectively, “Defendants”)

This action arises out of an employment relationship. Plaintiff sues Defendants and Does 1 through 100, inclusive, pursuant to an October 4, 2024 complaint. The operative first amended complaint (the “FAC”) alleges causes of action for: (1) FEHA discrimination [age & disability]; (2) FEHA failure to prevent and/or remedy discrimination; (3) FEHA failure to accommodate; (4) FEHA hostile work environment harassment [age & disability]; (5) FEHA failure to prevent and/or remedy harassment [age & disability]; (6) FEHA retaliation; (7) violation of Labor Code § 1102.5, et seq.; and (8) defamation [per se and per quod].

On January 17, 2025, Defendants filed the instant demurrer (“Demurrer”). On May 20, 2025, Plaintiff filed an opposition (the “Opposition”). On May 27, 2025, Defendants filed a reply (the “Reply”).

Defendants’ objection to the Declaration of Ashley J. Garay, paragraphs 7-8 and exhibit B is SUSTAINED. In ruling on a demurrer, the Court may only consider the factual assertions within the face of the complaint.

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 (1983) 35 Cal.3d 197, 212, superseded by statute as stated in Branick v. Downey Savings & Loan Assn.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.)

The Fair Employment and Housing Act ("FEHA") prohibits several employment practices relating to protected characteristics, including prohibiting employers from failing to make reasonable accommodation for the known disabilities of employees. Under Government Code section 12940 subdivision (m), an employer has a duty to make “reasonable accommodation for the known physical or mental disability of an . . . employee.” (Gov. Code § 12940 subd. (m)(1).) To allege a cause of action for failure to accommodate, a plaintiff must plead that “‘(1) the plaintiff has a disability covered by the FEHA; (2) the plaintiff is a qualified individual (i.e., he or she can perform the essential functions of the position); and (3) the employer failed to reasonably accommodate the plaintiff’s disability.[Citation.]’ ” (Hernandez v. Rancho Santiago Cmty. College Dist. (2018) 22 Cal.App.5th 1187, 1193-1194.)

Defendants demur to the third cause of action on grounds that Plaintiff has not alleged facts sufficient to establish that she has a disability as defined by FEHA. The FAC alleges that “Plaintiff, at all relevant times herein, suffered from FEHA protected disabilities, including but

not limited to high blood pressure, stress, anxiety, and depression.” (FAC, ¶ 82.) The FAC alleges that Plaintiff’s therapist issued Plaintiff a note stating that Plaintiff “‘has a disability associated with participation in 1:1 supervisory meetings she describes as ‘hostile’ and ‘abusive.’” (FAC, ¶ 27.) Plaintiff alleges that she suffered from “persistent anxiety, stomach issues, and inability to sleep” as a result of defendant Royer’s conduct. (FAC ¶ 28.)

As Defendants note, “an employee’s inability to work under a particular supervisor because of anxiety and stress related to the supervisor’s standard oversight of the employee’s job performance does not constitute a disability under FEHA.” (Higgins-Williams v. Sutter Medical Foundation (2015) 237 Cal.App.4th 78, 85.) In the Opposition, Plaintiff cites to Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245 for the proposition that “posttraumatic stress disorder and related symptoms like anxiety, panic attacks, and sleeplessness, qualify as disabilities under FEHA.” (Opp., p. 9:1-8.) In Jensen, the plaintiff was diagnosed with post-traumatic stress disorder after being held at gunpoint during a bank robbery. (Jensen, supra, 85 Cal.App.4th 245 at 249.) Jensen is distinguishable from the present case, in which Plaintiff alleges that her stress, anxiety and related symptoms were directly caused by her supervisor Royer’s allegedly raising her voice and berating Plaintiff. (FAC, ¶¶ 21-22). This more closely resembles Higgins-Williams, in which the plaintiff claimed anxiety caused by her supervisor grabbing her arm and yelling at her. (Higgins-Williams, supra, 237 Cal.App.4th 78.) Since the FAC alleges that Plaintiff’s mental disability is solely related to Royer’s conduct in the course of supervision, it does not qualify as a disability under FEHA. Thus, Plaintiff has not alleged facts sufficient to state a failure to accommodate cause of action.

Fourth Cause of Action, FEHA Hostile Work Environment Harassment [Age & Disability]

Government Code section¿12940 subdivision (j) governs harassment of employees under FEHA. "Harassment of an employee, an applicant, an unpaid intern or volunteer, or a person providing services pursuant to a contract by an employee, other than an agent or supervisor, shall be unlawful if the entity, or its agents or supervisors, knows or should have known of this conduct and fails to take immediate and appropriate corrective action." (Gov. Code, § 12940, subd. (j)(1).)

To establish a hostile work environment claim under FEHA, a plaintiff must establish the following: (1) that plaintiff belongs to one of the suspect classifications which the FEHA was enacted to protect; (2) plaintiff was subjected to harassment; (3) the harassment was based on being a member of the group protected by the FEHA; and (4) the harassment was sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment. (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 608.)

Defendants demur to the fourth cause of action on grounds that “Plaintiff has failed to allege facts to demonstrate harassing conduct by any of the Defendants, that any such conduct was because of her age or disability, or that any such conduct was sufficiently severe or pervasive to alter the conditions of her employment and create an abusive work environment.” (Demurrer, p. 8:13-16.)

The FAC alleges that Plaintiff is 68 years old. (FAC, ¶ 13.) The FAC alleges that Cleaver made comments to Plaintiff including: “You’re slowing down,” “you just don't have it anymore,” “you are the only one having trouble learning the new technology,” “You have no passion, no energy, and no focus anymore…what are you even excited about?” and that Plaintiff had “difficulty keeping with new technology.” (FAC, ¶¶ 46, 50.) The FAC alleges that Occidental’s President selected a 34-year-old employee to attend an event in New Mexico instead of Plaintiff, despite Plaintiff having previously attended the event each year. (FAC, ¶ 52.) Plaintiff alleges that after she complained to Human Resources and Occidental’s Chief Operating Officer about being harassed and discriminated against because of her age, and despite expressly stating that she did not want to retire, she was presented with a retirement exit package. (FAC, ¶¶ 57-58.) This is sufficient to allege facts stating a harassment claim against Cleaver and Occidental.

The FAC does not, however, allege sufficient facts to state a claim for age-based harassment against Royer or LaCroix. The FAC alleges that in 2022, Royer, commenting on another employee, told Plaintiff: "When my dad was getting old, he started falling asleep whenever he'd sit down, too." (FAC, ¶ 20.) A single age-related comment is not sufficiently pervasive to create a hostile working environment. Plaintiff also alleges that Royer raised her voice to Plaintiff and said: “If you can’t compartmentalize your grief, you should take a leave of absence!” (FAC, ¶ 22.) This comment does not appear related to a protected characteristic, i.e. Plaintiff’s age. Further, the FAC contains no allegations of harassing conduct by LaCroix. The FAC alleges only that Royer, LaCroix and Cleaver “met privately multiple times per week to conspire to terminate Plaintiff Frost’s employment.” (FAC, ¶ 42.) This allegation alone is not sufficient to state an age-harassment claim against LaCroix.

Thus, the Demurrer to the fourth cause of action is SUSTAINED, with leave to amend, as to Royer and LaCroix and OVERRULED as to Cleaver and Occidental.

Fifth Cause of Action, FEHA Failure to Prevent and/or Remedy Harassment [Age & Disability]

An employer is obligated “to take all reasonable steps necessary to prevent discrimination and harassment from occurring.” (Gov. Code, § 12940, subd. (k).) “When a plaintiff seeks to recover damages based on a claim of failure to prevent discrimination or harassment she must show three essential elements: 1) plaintiff was subjected to discrimination, harassment or retaliation; 2) defendant failed to take all reasonable steps to prevent discrimination, harassment or retaliation; and 3) this failure caused plaintiff to suffer injury, damage, loss or harm.” (Lelaind v. City and County of San Francisco (N.D. Cal. 2008) 576 F.Supp.2d 1079, 1103, quoted with omissions in Caldera v. Department of Corrections and Rehabilitation (2018) 25 Cal.App.5th 31, 43-44.)

Defendants demur to the fifth cause of action on grounds that Plaintiff failed to state a claim for harassment. (Demurrer, pp. 12:24-13:3.) As the Court overruled the Demurrer to the harassment cause of action as to Cleaver and Occidental, Defendants’ Demurrer to the failure to prevent harassment claim alleged against Occidental is OVERRULED as well.

“The elements of a defamation claim are (1) a publication that is (2) false, (3) defamatory, (4) unprivileged, and (5) has a natural tendency to injure or causes special damage.” (J-M Manufacturing Co., Inc. v. Phillips & Cohen LLP (2016) 247 Cal.App.4th 87, 97.) A defamation claim must be filed within one year of accrual of the cause of action. (CCP, § 340 subd. (c); see also Shively v. Bozanich (2003) 31 Cal.4th 1230, 1246.) “[A] cause of action for defamation accrues at the time the defamatory statement is “published.’” (Id. at 1247.)

“A publication ‘must contain a false statement of¿fact’ to give rise to liability for defamation. [Citation.]” (Jensen v. Hewlett-Packard Co.¿(1993) 14 Cal.App.4th 958, 970.) “If defendant's statement is one of opinion, then it cannot be false and is outside the meaning of [defamation].” (Tschirky v. Superior Court¿(1981) 124 Cal.App.3d 534, 539.) “Whether¿the challenged statement is reasonably susceptible of an interpretation which implies a provably false assertion of actual fact is a question of law.” (Morningstar, Inc. v. Superior Court¿(1994) 23 Cal.App.4th 676, 686–687.)

Defendants demur to the eighth cause of action on grounds that Plaintiff fails to specifically identify any defamatory statement and that there was no publication of statements to a third party. (Demurrer, pp. 15:16-18:23.) In the Opposition, Plaintiff asserts that she was issued with a performance improvement plan (“PIP”) which “contains defamatory statements that, while not specifically pleaded in the complaint, are referenced as the basis for her defamation claim.” (Opp., p. 17:4-6.) The FAC fails to specifically allege the disparaging statements purportedly made in the PIP. “As Witkin distills the pleading rule, ‘It is sometimes said to be a requirement, and it certainly is the common practice, to plead the exact words or the picture or other defamatory matter. The chief reason appears to be that the court must determine, as a question of law, whether the defamatory matter is on its face or capable of the defamatory meaning attributed to it by the innuendo. Hence, the complaint should set the matter out verbatim, either in the body or as an attached exhibit.’” (Hecimovich v. Encinal School Parent Teacher Organization (2012) 203 Cal.App.4th 450, 457, fn. 1.)

Thus, the Demurrer to the eighth cause of action is SUSTAINED, with leave to amend.

The Demurrer is OVERRULED as to the fifth cause of action, and SUSTAINED, with 20 days leave to amend, as to the third and eighth causes of action. The Demurrer to the fourth cause of action is OVERRULED as to Cleaver and Occidental and SUSTAINED, with 20 days leave to amend, as to Royer and LaCroix.

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