Judge: Jon R. Takasugi, Case: 22STCV15935, Date: 2023-01-27 Tentative Ruling

Case Number: 22STCV15935    Hearing Date: January 27, 2023    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

            Defendants’ demurrer is SUSTAINED, WITH 15 DAYS LEAVE TO AMEND, as to the second cause of action. Defendants’ demurrer is SUSTAINED, WITHOUT LEAVE TO AMEND, as to the eighth cause of action.

            The eighth cause of action is ordered dismissed, with prejudice. 

            On 5/12/2022, Plaintiff Travonne Borders (Plaintiff) filed suit against International Paper Company and Angie Doe (collectively, Defendants). On 7/29/2022, Plaintiff filed a first amended complaint (FAC) alleging: (1) discrimination; (2) harassment; (3) retaliation; (4) failure to prevent; (5) retaliation; (6) failure to provide reasonable accommodation; (7) failure to engage in interactive process; (8) declaratory judgment; (9) wrongful termination; (10) failure to provide rest periods; (11) failure to provide itemized wage and hour statements; (12) waiting time penalties; (13) Private Attorney General Act (PAGA); and (14) unfair competition.

            Now, Defendants demur to the second and eighth causes of action.

Discussion

            Defendants argue that Plaintiff cannot state a claim for harassment (2^nd COA) because personnel management decisions cannot constitute harassment, and Plaintiff  cannot state a claim for declaratory relief (8^th COA) because it is improperly pled.

            As for harassment, Plaintiff alleges:

-         Upon returning to work in June 2021, Plaintiff asked Ms. Bottorff, IP’s human resources manager, to work no more than eight hours per workday as a doctor recommended accommodation. Ms. Bottorff denied Plaintiff’s request and informed Plaintiff that nobody worked “only” eight hours. (FAC ¶ 24.)

-         Thereafter, Plaintiff went on medical leave on or about June 23, 2021 to September 20, 2021. Plaintiff returned to work with restrictions, including working no more than eight hours per workday. Plaintiff’s disability and need for accommodation required Plaintiff to miss work on days when the pain became unbearable, and it sometimes required Plaintiff to leave work early. Because of Plaintiff’s need for accommodation in the form of half days or days off, Ms. Bottorff began targeting Plaintiff for admonitions and write-ups. Ms. Bottorff became increasingly hostile and demanding towards Plaintiff, often requiring Plaintiff to provide notes from doctors despite knowing that Plaintiff could not possibly schedule a doctor’s visit within the time frame Ms. Bottorff allotted. Furthermore, on days Plaintiff could not work due to his disability, Ms. Bottorff or one of her subordinates would call and threaten Plaintiff with termination. Ms. Bottorff even provided Plaintiff with a post-dated check for his wages, causing Plaintiff enough financial hardship to miss paying his phone bill and babysitter on time. When Plaintiff brought the post-dated check to Ms. Bottorff’s attention, Ms. Bottorff demanded Plaintiff show proof that he was unable to pay his phone bill. (FAC ¶ 25.)

-         Thereafter Defendants terminated Plaintiff’s employment on or about October 21, 2021. (FAC ¶ 26.)

-         Defendants subjected the Plaintiff to harassment by demeaning him for requesting to only work eight hours per day. (FAC ¶ 28.)

In Janken v. GM Hughes Electronics (1996) 46 Cal. App. 4th 55, the Court of Appeal explained:

 [T]he Legislature intended that commonly necessary personnel management actions such as hiring and firing, job or project assignments, office or workstation assignments, promotion or demotion, performance evaluations, the provision of support, the assignment or non-assignment of supervisory functions ... do not come within the meaning of harassment. These are actions of a type necessary to carry out the duties of business and personnel management. These actions may retrospectively be found discriminatory if based on improper motives, but in that event the remedies provided by the FEHA are those for discrimination, not harassment. Harassment, by contrast, consists of actions outside the scope of job duties which are not of a type necessary to business and personnel management. This significant distinction underlies the differential treatment of harassment and discrimination in the FEHA.

            Here, Plaintiff’s harassment cause of action is based on allegations that Plaintiff was told that no one works “only eight hours”, that he was admonished and written up for his requests for time-off, that he was asked for doctor’s notes, that he was wrongfully terminated, and that there were problems with the final paycheck provided to Plaintiff causing him to miss paying his phone bill and babysitter on time. These allegations fall squarely within the scope of business and personnel management decisions, and are insufficient to state a claim for harassment.

            As for declaratory relief, Plaintiff seeks “a judicial determination of [his] rights and duties, and a declaration that Defendants [sic] harassed [him] on the basis of [his] perceived disability, medical condition ... and some combination of these protected characteristics.” (FAC, ¶¶ 107-11.) Given that Plaintiff’s Complaint includes causes of action for harassment, failure to accommodate, wrongful termination, and retaliation, this cause of action is duplicative. Moreover, “FEHA authorizes declaratory relief as a remedy to prevent ongoing discrimination, not as an independent cause of action.” (Mauran v. Walmart Inc. (9th Cir. 2019) 786 Fed.Appx. 671, 674, emphasis added.) Thus, to the extent that Plaintiff seeks declaratory relief as a standalone cause of action arising from his FEHA claim, it is improper.

            Based on the foregoing, Defendants’ demurrer is sustained, with 15 days leave to amend, as to the second cause of action, and sustained, without leave to amend, as to the eighth cause of action.

It is so ordered.

Dated:  January    , 2023

   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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