Judge: Jon R. Takasugi, Case: 23STCV12949, Date: 2024-01-22 Tentative Ruling

Case Number: 23STCV12949    Hearing Date: January 22, 2024    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

            The City’s demurrer is SUSTAINED, WITHOUT LEAVE TO AMEND, as to the twelfth cause of action.

The City’s motion to strike is DENIED IN PART, GRANTED IN PART:

-          The motion is DENIED as to the 2017 failure to promote allegations.

-          The motion is GRANTED, WITH 10 DAYS LEAVE TO AMEND, as to the allegations concerning the 2017 Complaint.

-          The motion is SUSTAINED, WITHOUT LEAVE TO AMEND, as to the punitive damages prayer against the City and the first, third, fourth, sixth, seventh, ninth, and tenth cause of action against Individual Defendants.

            On 6/7/2023, Plaintiff Adan Iman (Plaintiff) filed suit against the Bureau of Sanitation, City of Los Angeles, Rowena Lau, Eva Sung, Lisa Mowery, and Enrique Zaldivar, alleging: (1) discrimination based on race; (2) harassment based on race; (3) retaliation based on race; (4) discrimination based on age; (5) harassment based on age; (6) retaliation based on age; (7) discrimination based on religion; (8) harassment based on religion; (9) retaliation based on religion; (10) failure to prevent; (11) intentional infliction of emotional distress; and (12) wrongful termination in violation of public policy.

            Now, Defendant City of Los Angeles (City) demurs to the twelfth cause of action.

            Plaintiff did not oppose the demurrer. Plaintiff did oppose the motion to strike.

Discussion

            The City argues that Plaintiff cannot maintain a claim for wrongful termination against it because public entities cannot be held liable for this non-statutory cause of action.

It is established law in California that “[e]xcept as provided by statute: a public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person.” (Cal. Gov. Code § 815(a)). This provision “abolishes all common law or judicially declared forms of liability for public entities, except for such liability as may be required by the state or federal constitution.” (Cal. Gov. Code § 815, Editors’ Notes)

Based on this language, the Court in Palmer v. Regents of Univ. of California found that a wrongful termination claim (otherwise known as a Tameny claim) could not be properly asserted against the Regents because it “is a common law, judicially created tort … and not authorized by statute…” The California Supreme Court affirmed this assertion, ruling that they agree “with the Palmer court that section 815 [of the California Government Code] bars Tameny actions against public entities.” (Miklosy v. Regents of Univ. of California (2008) 44 Cal.4th 876, 900)

Similarly, as for the individual defendants, the California Supreme Court held that its decision that “individual supervisors may not be sued under the FEHA applies likewise to [wrongful termination in violation of public policy].” (Reno v. Baird (1998) 18 Cal.4th 640, 663). Indeed, the Court held that “[b]ecause Plaintiff could not sue [Defendant] Baird as an individual supervisor under the FEHA, she may not sue her individually for wrongful discharge in violation of public policy.” (Id. at 664; see also Jacobs v. Universal Development Corp. (1996) 53 Cal.App.4th 692, 704 [“Only an employer can be liable for tortious discharge, and fellow employees cannot be held accountable for tortious discharge on a conspiracy theory.”].)

Plaintiff did not oppose this motion, and thus is considered to have conceded to the merits.

Based on the foregoing, the City’s demurrer is sustained, without leave to amend, as to the twelfth cause of action.

Motion to Strike

            In its motion to strike, Defendant argues that Plaintiff’s Complaint is deficient because it seeks redress for causes of action barred against public entities and/or against the individually named defendants.

Arguments as to whether or not Plaintiff has alleged sufficient facts to support a claim are properly raised in demurrer, not motions to strike. For example, Defendant argues that Plaintiff’s allegations related to Plaintiff’s 2017 Complaint against his supervisor should be stricken because they are time-barred. It is unclear why Defendant chose to include these arguments in the motion to strike, rather than the demurrer.

            However, in the interest of judicial economy, and given that Plaintiff did not object in opposition, the Court still considers the arguments raised by the City.

            The City argues that: (1) Plaintiff’s claims arising out conduct that took place in 2017 are time-barred; (2) Plaintiff cannot maintain a prayer for punitive damages against a public entity; (3) Plaintiff cannot hold the individual defendants liable under the first, third, fourth, sixth, seventh, ninth, and tenth cause of action

            As for the first contention, there is a three-year statute of limitations for FEHA claims. (Cal. Gov. Code § 12960(e)(5); CACI 2508) Plaintiff’s claims arise, in part, on allegation that, the City failed to promote him based on his race, age, and religion in July 2017. The City argues that Plaintiff cannot rely on the continuing violation doctrine because failure to promote is a discrete act which constitutes a separate actionable unlawful employment practice, citing the U.S. Supreme Court case National R.R. Passenger Corp. v. Morgan (2002) 536 U.S. 101, 114 in support.

            After review, the Court agrees only in part.

            As for the 2017 failure to promote, Defendants interviewed Plaintiff in June 2017 and informed him that he would not be hired for the Senior Management Analyst position the following month. While the Court understands the City’s contention that this was a single, discreet act that began in June 2017 and ended in July 2017, Plaintiff alleges that this conduct was part of a larger pattern of discrimination, retaliation, and harassment based on his age, race, and religion, that continued until his forced retirement in June 2021. While the City may contend that the allegations outside the failure to promote are “relatively innocuous” this is not properly decided at the pleading stage.

As such, the failure to promote based on those characteristics cannot be said, as a matter of law, not to be part of an ongoing and continuing violation. Notably, the City’s analysis does not include any analogous California caselaw where Courts found similar allegations of failure to promote to be discrete and thus time-barred. There is nothing in Morgan that forecloses the application of the continuing violation doctrine.

            However, the Court agrees that the portion of Plaintiff’s claim based on his 2017 Complaint against his Supervisors is time-barred. This is because, unlike with the failure to promote, Plaintiff filed a DFEH complaint in April 2019 alleging retaliation based on his 2017 Complaint.  The DFEH then investigated Plaintiff’s belief that he was “denied a transfer to another division in retaliation for filing a discrimination complaint” against his supervisors. (RJN, Ex. B, p. 3). While Plaintiff does not allege a failure to transfer as retaliation in the Complaint at issue in this matter, Exhibit B shows that retaliation pursuant to Plaintiff’s 2017 complaint against his supervisors was directly at issue in Plaintiff’s 2019 DFEH Complaint. (See e.g. Closure Letter, Exh. B., “You believe you were denied a transfer to another division in retaliation for filling a discrimination complaint against (name redacted) and (name redacted).  On July 24, 2017, you filled a discrimination complaint against your direct supervisors, for denying you a promotion.”)

            Moreover, Plaintiff actually obtained a DFEH Right to Sue Notice on April 6, 2020, which explained that Plaintiff had one year from April 6, 2020 to file a civil suit related to the 2017 retaliation claims as outlined in California statute under Government Code section 12960(f)(1)(B). Plaintiff had until April 6, 2021 to file this lawsuit but instead waited until June 2023. As a result, the Court agrees that it appears, from the face of the Complaint, that Plaintiff has lost his opportunity to litigate the claims contained in his 2019 DFEH Complaint. (See Williams v. Pacific Mutual Life Ins. Co. (1986) 186 Cal.App.3d 941, 949 [holding FEHA’s one-year deadline to file suit after receiving a right to sue notice is “a condition on a substantive right rather than a procedural limitation period for commencement of an action” and, as such “they cause the right which previously arose and on which a suit could have been maintained, to expire]). Plaintiff will be afforded one opportunity of leave to amend to allege facts which could show the claim is not time-barred.

            As for the second contention, the City argues that Plaintiff cannot establish a claim for punitive damages against the City because it is fundamental that “a public entity is not liable for damages awarded under Section 3294 of the Civil Code or other damages imposed primarily for the sake of example and by way of punishing the defendant.” (Cal. Gov. Code § 818; see also Cal. Gov. Code § 825). The Court agrees.

            Finally, as for the third contention, the Court also agrees. While FEHA allows for assignment of liability to individual employees for harassment, it does not allow this for discrimination or retaliation. Moreover, language in FEHA makes clear that it is an “unlawful employment practice for an employer to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring. (Cal. Gov. Code § 12940(k) [emphasis added]); see also CACI 2527 [“To establish this claim, Plaintiff must prove all of the following: (1) that Plaintiff was an employee of Defendant.]). Here, none of the individually named defendants were Plaintiff’s “employer” and Plaintiff does not so allege. As such, Plaintiff has not alleged facts which could show that the individual defendants could be liable for failure to prevent.

            Based on the foregoing, the City’s motion to strike is denied in part, granted in part. The City’s motion is denied as to the 2017 failure to promote allegations. The City’s motion is granted, with 10 days leave to amend, as to the allegations concerning the 2017 Complaint. The city’s motion is granted, without leave to amend, as to the punitive damages prayer against the City and as to the first, third, fourth, sixth, seventh, ninth, and tenth cause of action against individual defendants.

It is so ordered.

Dated:  January    , 2024

   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.  For more information, please contact the court clerk at (213) 633-0517.