Judge: Jon R. Takasugi, Case: 23STCV23593, Date: 2024-01-26 Tentative Ruling

Case Number: 23STCV23593    Hearing Date: April 17, 2024    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

Defendant’s demurrer to the second, third, fourth, and fifth causes of actions is SUSTAINED, WITHOUT LEAVE TO AMEND.

On 9/28/2023, Plaintiff Marcus Portis (Plaintiff) filed suit against the City of Los Angeles O 2/9/2024, Plaintiff fifled a second amended complaint (SAC) alleging: (1) disability discrimination; (2) age discrimination; (3) religious discrimination; (4) harassment in violation of FEHA; (5) retaliation in violation of FEHA; (6) failure to prevent; (7) failure to accommodate; and (8) failure to engage in interactive process.

On 3/12/2024, Defendant demurred to the second, third, fourth, and fifth causes of action.

Discussion

Defendant argues that Plaintiff has failed to allege sufficient facts to state a claim as to the second, third, fourth, and fifth causes of action. More specifically, Defendant contends that Plaintiff still relies on conclusory allegations which fail to show a causal connection between his alleged adverse employment action and his various protected characteristics.

As to the second cause of action, the Court previously found that the FAC “has not alleged any facts which could show a causal connection between his age and adverse employment action or any adverse treatment of him.” (Minute Order, p. 3, January 26, 2024). The only additional facts that Plaintiff alleged to show Defendant’s animus toward Plaintiff’s age is that Defendant allegedly replaced him with a younger fireman after Plaintiff’s termination. (SAC, ¶ 33) However, aside from this new allegation, nothing in the SAC suggests that Defendant took any action against Plaintiff specifically because of his age. Plaintiff has not identified any legal authority which could show that the mere fact of being replaced by a younger employee, without more, is sufficient to state a claim for age discrimination. If it were, any employer would be liable for age discrimination where an older employee was replaced by a younger employee.

Moreover, Plaintiff himself admits that he was terminated, “due to him being unable to return to work in his normal capacity.” (SAC, ¶ 31). As a result, the Court agrees that “Plaintiff’s own admissions as to the alleged reason for his termination show that his age played no role in Defendant’s decision to terminate his employment.” (Motion, 3: 13-15.)

As for the third cause of action, the Court noted in its prior Minute Order, “Plaintiff himself alleges he was placed on unpaid leave ‘because he did not get the COVID 19 vaccine,’ not because of his religious convictions.” (Min. Order, p. 4, January 26, 2024). Further, just as with the FAC, the SAC alleges that once Plaintiff actually applied for a religious exemption from the Covid 19 vaccine mandate, Defendant accepted the exemption and allowed Plaintiff to return to work. (SAC, ¶ 22). While Plaintiff has added new allegations that Plaintiff’s religious exemption would only last 30 days, would need to be renewed, and may eventually be revoked, Plaintiff does not allege any of these actions came to fruition. Instead, the SAC describes a timeline of events that show the following: (1) Defendant had a Covid 19 vaccine mandate for all employees requiring vaccination (SAC, ¶¶ 18, 20); (2) Defendant’s employees could apply for a religious exemption from that mandate (SAC, ¶ 22); (3) Plaintiff eventually applied for a religious exemption (SAC, ¶ 22); and (4) Defendant accepted Plaintiff’s religious exemption (SAC, ¶ 22). As such, Plaintiff has not alleged facts which could show that he was subjected to religious discrimination.

As for the fourth cause of action, the Court previously found that Plaintiff had not alleged facts which could show he was subject to severe and pervasive harassment. (Min. Order, p. 4, January 26, 2024.) Plaintiff’s SAC still suffers from the same deficiency. Where as the original Complaint alleged:

When Plaintiff arrived at work, he felt everything was very different. The other workers would not look at or engage with Plaintiff. The congeniality in the station was not the same. When Plaintiff arrived in a room, the talking stopped, and the room would be dead silent.

(FAC ¶ 24).

Now, the SAC allege:

When Plaintiff arrived at work, he felt everything was different. Everyone was ignoring him. Everyone would walk out of the room when Plaintiff walked in. The other worker would not look at or engage with Plaintiff. The congeniality in the station was not the same. When Plaintiff arrived in a room where there was conversating, the talking stopped, and the room would be dead silent.

(SAC ¶ 25).

As such, Plaintiff’s claim still turns on an allegation that on a single day Plaintiff was allegedly shunned by unnamed co-workers who would leave the room when he entered. The Court agrees with Defendant that these allegations are insufficient as a matter of law to state a claim for harassment. (Aguilar v. Avis Rent A Car System (1999) 21 Cal.4th 121, 130-131.)

Finally, as for the fifth cause of action, Plaintiff alleges that he was retaliated against in violation of FEHA for opposing the Covid mandate that conflicted with Plaintiff’s sincere religious belief. However, first, Plaintiff himself admits in the SAC that, “Plaintiff’s job was terminated on March 7, 2023, due to him being unable to return to work in his normal capacity.” (SAC, ¶ 31 [emphasis added]). Second, Plaintiff alleges he refused to get the Covid-19 vaccine and Defendant placed him off work on November 30, 2021. (SAC, ¶ 21). He was not terminated for another sixteen months. Taken together, Plaintiff has not alleged facts which could show that he was terminated based on his initial refusal to be vaccinated for COVID-19.

Given that Plaintiff was unable to address these deficiencies in the previous round of leave to amend, the Court has reason to believe additional leave would be futile.

Based on the foregoing, Defendant’s demurrer to the second, third, fourth, and fifth causes of actions is sustained, without leave to amend.

It is so ordered.

Dated:  April    , 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.