Judge: Jon R. Takasugi, Case: 21STCV46429, Date: 2022-07-27 Tentative Ruling

Case Number: 21STCV46429    Hearing Date: July 27, 2022    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

            Defendants’ demurrer is OVERRULED.

The Court does not consider the sufficiency of Plaintiff’s prayer for punitive damages.

            On 12/20/2021, Pierre Demian (Plaintiff) initiated this action. On 3/11/2022, Plaintiff filed a first amended complaint (FAC) against Montebello Unified School District, the Montebello Unified School District Board of Education, Anthony Martinez, Marisol Madrigal, Joanna Flores, Edgar Cisneros, Alejandro Ramirez, Jr., and Jennifer Gutierrez (collectively, Defendants), alleging violation of the California Whistleblower Protection Act.

            Now, Defendants demur to Plaintiff’s first cause of action and the prayer for punitive damages.

Discussion

            Defendants argue that they are entitled to immunity under California Government Code sections 815 and 820.2.

Section 820.2 “immunizes a public employee from liability for acts or omissions resulting from the exercise of the discretion vested in the public employee,” despite abuse of discretion. (Scott v. County of Los Angeles (1994) 27 Cal.App.4th 125, 140.) “This ‘discretionary act’ immunity extends to ‘basic’ governmental policy decisions entrusted to broad official judgment.” (Caldwell v. Montoya (1995) 10 Cal.4th 972, 976.) Generally, “a discretionary act is one which requires the exercise of judgment or choice.” (Kemmerer v. County of Fresno (1988) 200 Cal.App.3d 1426, 1437.)

Here, Plaintiff’s allegations against individual District Board Members involve their actions in a disciplinary proceeding which led to Plaintiff’s termination. Courts have found that the decision of a department head to institute disciplinary proceedings, and what discipline to impose, constitutes policy decisions involving the exercise of discretion. (See Kemmerer,  supra, 200 Cal.App.3d at p. 1438; Nicole M. v. Martinez Unified Sch. Dist. (N.D.Cal. 1997) 964 F.Supp. 1369, 1389–90; Caldwell v. Montoya (1995) 10 Cal.4th 972.) Indeed, in Caldwell, the Court specially addressed the “narrow but important issue: are individual members of an elected school board immune from a suit seeking damages against them personally for their successful votes to terminate the employment of the school district's superintendent…?” The Court concluded that the board members were immune even where the dismissed official alleges that the members' votes were cast for reasons that violated FEHA.” (Id. at p. 976.)

However, in opposition, Plaintiff argues that there is an exception to discretionary immunity for whistleblower actions. In support, he cites Defendant’s own case: Caldwell. In Caldwell, the Court distinguished FEHA and whistleblower laws and wrote:

Insofar as such whistle-blower statutes focus in particular on those who act to suppress or punish revelations of fraud, corruption, or illegality in government business, the core statutory objectives might well be obviated by a conclusion that cover-up efforts by a public official are eligible for immunity.

(Caldwell, supra, 10 Cal. 4th at 986 n.7, 988.)

Likewise in Conn v. Western Pacer Unified School District (2010) 186 Cal. App. 4th 1163, 1179, the court refused to apply discretionary act immunity to a whistleblower retaliation claim asserted by a teacher who was denied tenure. The plaintiff in Conn brought suit against the school district and several individual district employees under California Education Code section 44113, which bars employees from “directly or indirectly us[ing] or attempt[ing] to use the official authority or influence of the employee for the purpose of intimidating, coercing, commanding, or attempting to intimidate, threaten, coerce, or command any person for the purpose of interfering with the right of that person to disclose to an official agent matters within the scope of this article.”

In reply, Defendants now concede that discretionary immunity does not apply to claims brought under the California Whistleblower Protection Act (CWPA). Instead, Defendants argue that Plaintiff has not alleged sufficient facts to state a claim under the CWPA, and thus discretionary immunity applies. However, Defendants did not raise this argument in their original motion, and Plaintiff was not provided an opportunity to oppose these arguments. Accordingly, the Court may not properly consider it.   

            Moreover, a challenge to a prayer for damages is properly raised through a motion to strike, not a demurrer. (See Code Civ Proc., §§ 435-437) Accordingly, the Court cannot properly consider the sufficiency of Plaintiff’s prayer for punitive damages here.

            Based on the foregoing, Defendants’ demurrer is overruled. The Court does not consider the sufficiency of Plaintiff’s prayer for punitive damages.

It is so ordered.

Dated:  July    , 2022

   Hon. Jon R. Takasugi
   Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.  If all parties to a motion submit, the court will adopt this tentative as the final order.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. 

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