Judge: Jon R. Takasugi, Case: 22STCV38925, Date: 2023-04-21 Tentative Ruling

Case Number: 22STCV38925    Hearing Date: April 21, 2023    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

Defendant’s demurrer is OVERRULED.

On 12/15/2022, Plaintiff Johnnie Mcgee (Plaintiff) filed suit against Defendant County of Los Angeles (County), alleging: (1) discrimination; (2) retaliation; and (3) failure to prevent discrimination, harassment, and retaliation. 

Now, Defendant demurs to Plaintiff’s Complaint.

Legal Standard

A demurrer for sufficiency tests whether the complaint states a cause of action.¿ (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747 (Hahn).) ¿When considering demurrers, 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.)¿ In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice.¿ (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.)¿ “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters.¿ Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.”¿ (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.)¿ “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.”¿ (Hahn, supra, 147 Cal.App.4th at p. 747.) 

Discussion

Defendant argues that Plaintiff’s entire Complaint is barred as there is another action pending between the parties based on the same claims.

            The Court disagrees.

            In Case No. 21STCV22100, Plaintiff McGee filed a complaint alleging discrimination, harassment, retaliation, failure to prevent, and failure to pay wages (First Action). On 10/5/2022, the Court sustained Defendant’s demurrer to the Third Amended Complaint’s (TAC’s) first cause of action, without leave to amend.

Now, about four months later, Plaintiff filed a new and second FEHA lawsuit based on allegations of discrimination and retaliation (Second Action). However, in opposition, Plaintiff clarifies that the two actions are not based on the same facts:

The claims in the Second Lawsuit are based on entirely new facts, occurred sixteen months after the last event constituting discrimination, harassment, and retaliation in the First Lawsuit. Here, the incident in the Second Lawsuit occurred on October 11, 2022, when McGee untimely received his 2020 and 2021 performance evaluations, which was late, from Head Fire Prevention Engineer James Bailey and Deputy Chief Nick Duvally, without any proper justification for the delay. (Complaint, ¿¿ 10-20.) The 2020 and 2021 evaluations were the worst evaluations McGee had ever received. (Complaint, ¿ 12.)

                                    ..

Meanwhile, the events that formed the basis of the First Lawsuit took place in 2017 to June 9, 2021. In fact, the last date mentioned in the Third Amended Complaint of the First Lawsuit was January 26, 2022, the date Plaintiff filed an amended discrimination complaint with the Department of Fair Employment & Housing (“DFEH”) and an amended Government Claim with the County. (Third Amended Complaint (“TAC”), ¿¿ 10-11.)

            (Opp. 1: 9-17.)

            In other words, Plaintiff’s Second Action is based on events that took place 6 days after the Court had already dismissed the First Action, and thus could not have been embraced by the Court’s ruling.

            In its motion, Defendant argues that collateral estoppel should apply because the Court has already adjudicated, and rejected, Plaintiff’s claims that the adverse employment actions alleged are not actually adverse employment actions. However, the Court’s ruling was based on a conclusion that Plaintiff’s claim was time-barred, and the inclusion of language about role fulfillment was only included as extra explanation as to why leave to amend was not afforded. As such, the Court disagrees with Defendant that the Court has adjudicated the merits of Plaintiff’s claim, such that it is barred by the collateral estoppel doctrine, or has made the factual determination as to whether or not Plaintiff’s alleged adverse employment actions are actually adverse employment actions. Moreover, given that the two alleged adverse employment actions underlying the Second Action had not yet occurred at the time of the Court’s ruling, it cannot be said that “[t]he two alleged adverse employment actions, however, were already reviewed by Your Honor and rejected as a basis for the discrimination cause of action.” (Motion, 6: 24-26.)

            Plaintiff has alleged that he was intentionally given negative performance reviews as part of a pattern of racial discrimination against him in order to prevent his ability to promote to FPEA2, and alleges that Chief Duvally purposely failed and refused to fill empty FPEA2 positions in order to prevent McGee’s promotion to that role. (Complaint, ¶¶ 14, 16-18.) As explained in Yanowitz v. L’Oreal (2005) 36 Cal.4th 1028 at 1054, the term “adverse employment action” is to be interpreted broadly, to cover the “entire spectrum of employment actions that are reasonably likely to adversely and materially affect an employee’s job performance or opportunity for advancement in his or her career.” Accordingly, whether or not Plaintiff can show that the negative performance reviews, in fact, rose to the level of an adverse employment action or were, in fact, a product of racial discrimination, are factual determinations not properly decided at this stage. While the Court understands Defendant’s contentions—i.e., that Plaintiff’s performance evaluations were not considered as part of the promotion process and Defendant has not opened a new position for which Plaintiff is qualified—to sustain Defendant’s demurrer on this ground would constitute a factual determination not properly made at the pleading stage. While it may be that Plaintiff cannot actually show he suffered an adverse employment action, the Court must accept well-pled allegations as true and there is no contention that his claim is time-barred.

            Based on the foregoing, Defendant’s demurrer is overruled.

It is so ordered.

Dated:  April    , 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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