Judge: Joseph Lipner, Case: 21STCV27139, Date: 2023-12-26 Tentative Ruling

Case Number: 21STCV27139    Hearing Date: January 25, 2024    Dept: 72

SUPERIOR COURT OF CALIFORNIA

COUNTY OF LOS ANGELES

DEPARTMENT 72

TENTATIVE RULING

Defendant Marlene Tobin (“Tobin”) moves for judgment on the pleadings against Plaintiff Valerie Kincaid (“Plaintiff”).

The Court DENIES Tobin’s motion.

The Court DENIES Plaintiff’s request for sanctions.

The Court DENIES the County of Los Angeles’s request for sanctions.

Background

The Court takes the following facts from the allegations in Plaintiff’s complaint.

Plaintiff is employed as a clerk with the County of Los Angeles (the “County”). From the end of 2019 through December 2020, Plaintiff’s coworker, Tobin, allegedly made derogatory comments related to religion and race.

Plaintiff complained to her managers about Tobin’s conduct and requested that Tobin be moved to a different department, but it took over a year for Tobin to be moved.

Plaintiff filed the Complaint against Defendants Tobin and the County on July 23, 2021, stating claims for (1) harassment based on race; (2) discrimination based on race; (3) retaliation for opposing violations of FEHA; (4) failure to prevent harassment, discrimination, and retaliation; and (5) whistleblower retaliation in violation of Labor Code section 1102.5. Tobin has only been named as a defendant for the first cause of action for harassment based on race.

On November 2, 2021, the Court overruled the County’s demurrer complaint and found that Plaintiff’s managers’ alleged failure to move Tobin to another unit facially constituted an adverse employment action for the retaliation cause of action. (November 2, 2021 Minute Order at p. 2.)

On January 23, 2024, the Court denied the County’s motion for summary judgment.

Tobin filed this motion on January 2, 2024. Plaintiff filed an opposition and Tobin filed a reply.

Legal Standard

Either prior to trial, but after the time to answer or demur has passed, or at the trial, the plaintiff or the defendant may move for judgment on the pleadings and that the appropriate ground for such a motion is the same as that arguable by general demurrer, namely, the failure to state a cause of action or defense. (Dobbins v. Hardister (1966) 242 Cal.App.2d 787, 791; See also Sofias v. Bank of America (1985) 172 Cal.App.3d 583, 586 [The non-statutory motion for judgment on the pleadings can be made at any time, even during trial, since the grounds for a general demurrer are never waived.], see also Code Civ. Proc., §438(f).)  

A motion for judgment on the pleadings performs the same function as a general demurrer, and hence attacks only defects disclosed on the face of the pleadings or by matters that can be judicially noticed. (See, e.g., Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (TRG 1998) §§ 7:275, 7:322; Lance Camper Manufacturing Corp. v. Republic Indemnity Co. (1996) 44 Cal.App.4th 194, 198.) Presentation of extrinsic evidence is therefore not proper on a motion for judgment on the pleadings. (Id.; Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 999.) Both a demurrer and a motion for judgment on the pleadings accept as true all material factual allegations of the challenged pleading, unless contrary to law or to facts of which a court may take judicial notice. (Mechanical Contractors Assn. v. Greater Bay Area Assn. (1998) 66 Cal.App.4th 672, 677; Edwards v. Centex Real Estate Corp, (1997) 53 Cal.App.4th 15, 27.) 

The motion may be made only after one of the following conditions has occurred: (1) If the moving party is a plaintiff, and the defendant has already filed his or her answer to the complaint and the time for the plaintiff to demur to the answer has expired; (2) If the moving party is a defendant, and the defendant has already filed his or her answer to the complaint and the time for the defendant to demur to the complaint has expired. (Code Civ. Proc., § 438(f).) The motion provided for in Code of Civil Procedure section 438 may be made even though either of the following conditions exist:  (1) The moving party has already demurred to the complaint or answer, as the case may be, on the same grounds as is the basis for the motion provided for in this section and the demurrer has been overruled, provided that there has been a material change in applicable case law or statute since the ruling on the demurrer; (2) The moving party did not demur to the complaint or answer, as the case may be, on the same grounds as is the basis for the motion provided for in this section. (Code Civ. Proc., § 438(g).) No motion may be made pursuant to Code of Civil Procedure section 438 if a pretrial conference order has been entered pursuant to Code of Civil Procedure section 575, or within 30 days of the date the action is initially set for trial, whichever is later, unless the court otherwise permits. (Code Civ. Proc., § 438(e).) 

Discussion

Harassment Based on Race – First Cause of Action

To establish a prima facie case of a hostile work environment, [the plaintiff] must show that (1) [plaintiff] is a member of a protected class; (2) [plaintiff] was subjected to unwelcome harassment; (3) the harassment was based on [plaintiff’s] protected status; (4) the harassment unreasonably interfered with [plaintiff’s] work performance by creating an intimidating, hostile, or offensive work environment; and (5) defendants are liable for the harassment.”  (Ortiz v. Dameron Hospital Assn. (2019) 37 Cal.App.5th 568, 581.) 

Plaintiff alleges as follows regarding Tobin’s conduct:

20. In May and June 2020, after the death of George Floyd on May 25, 2021, Clerk Tobin, who is Caucasian, started making comments about the incident about two times per week. The incident resulted in extensive new coverage and nationwide protests. Clerk Tobin made comments, including, but not limited to: “Why is everyone so upset about the George Floyd thing? We didn’t see everything on the video.” “Black Lives Matter protestors are not protesting, they are just destroying things, they are criminals. They don’t care about justice.” “Police are good to me because I don’t do anything wrong.” After Plaintiff, who is African-American, asked her to stop making the comments because they are offensive, Clerk Tobin stated “Maybe ‘you people’ (referring to African-Americans) get treated like that because you guys don’t know when to shut up.”

21. On or about November 8, 2020, after the 2020 presidential election, Clerk Tobin again began harassing Plaintiff based on her race, African American. Clerk Tobin made comments, including but not limited to, “Black Lives Matter protestors are not protesting, they are just destroying things, they are criminals. They don’t care about justice.” “I don’t know why you are mad at the police, “you guys” (referring to African-Americans) kill each other anyways, what’s the difference?” “Why is everyone mad that Trump didn’t comment about “that guy” (referring to George Floyd) getting killed?” “How stupid can you get, you know they’re blind, stupid, and crazy.” Plaintiff objected, asking Clerk Tobin to stop making offensive comments. Clerk Tobin replied, “I can say what I want to say, you can’t tell me what to do, this is not a dictatorship, I can say what I want to say.” The same day, Plaintiff told Deputy Smith about the comments that Clerk Tobin made from May 2020 to November 2020. Deputy Smith said she would speak with Chief Clerk Ferreyra.

(Complaint at p. 5:3-23.)

Tobin argues that, as a matter of law, this conduct does not constitute harassment based on race. Tobin characterizes her comments as merely being “political or social in nature.” (Motion at pp. 8:27-9:6.)

Whether conduct is severe or pervasive must be assessed from the perspective of a reasonable person in the same racial group. (McGinest v. GTE Service Corp. (9th Cir. 2004) 360 F.3d 1103, 1116 [“Racially motivated comments or actions may appear innocent or only mildly offensive to one who is not a member of the targeted group, but in reality be intolerably abusive or threatening when understood from the perspective of a plaintiff who is a member of the targeted group” in analyzing Title VII racial discrimination claim.]; see also State Dept. of Health Services v. Superior Court (2003) 31 Cal.4th 1026, 1040 [“California courts often look to Title VII in interpreting the FEHA”].) “The omnipresence of race-based attitudes and experiences in the lives of black Americans causes even nonviolent events to be interpreted as degrading, threatening, and offensive.” (Harris v. International Paper Co. (D. Me. 1991) 765 F.Supp. 1509, 1516, vacated in part on other grounds (D. Me. 1991) 765 F.Supp. 1529.)

It is true that not all of Tobin’s comments specifically purported to be about black people. “However, the Third Circuit has explained persuasively that “the use of ‘code words' can, under circumstances such as we encounter here, violate Title VII.” (McGinest v. GTE Service Corp., supra, 360 F.3d at pp. 1116-1117, quoting Aman v. Cort Furniture Rental Corp. (3d Cir. 1996) 85 F.3d 1074, 1083.) The Court finds these other courts’ analysis particularly apt – even where Tobin stated that she was talking about protestors, rioters, or looters, a reasonable jury, and certainly a reasonable black person, could conclude that those comments were coded words meant to target black people based on negative stereotypes.

Tobin cites Frith v. Whole Foods Market, Inc. (1st Cir. 2022) 38 F.4th 263, 275, where the First Circuit found that an employer’s enforcement of a dress code in a manner that targeted employees wearing pro-Black Live Matter garments was plausibly race-neutral because the company may not have wanted to be associated with a controversial political movement. (Ibid.) However, in addition to being nonbinding authority, Frith involved substantially different facts because the employer had, under the First Circuit’s analysis, a non-race-based interest in avoiding being involuntarily associated with various social or political movements. Here, on the other hand, Tobin’s conduct was not based on her own, let alone the County’s, desire to avoid having support for the Black Lives Matter movement foisted on them. Rather, Tobin affirmatively chose to make disparaging comments of her own accord, often seemingly without provocation.

Tobin also cites People v. Lastra (2022) 83 Cal.App.5th 816, in which the Court of Appeal repeatedly characterized a prosecutor’s opposition to the Black Live’s Matter movement as political in nature in support of her contention that her comments were political, rather than racial. (Ibid, generally.) However, the court in Lastra did not consider the question of whether someone’s view on the Black Lives Matter movement could be racially motivated, depending on the context; rather, it took as given that the prosecutor’s views were political in nature and found that those views supported a trial court’s recusal of the prosecutor from the prosecution of several Black Lives Matter protestors. (Id. at p. 823.)

Public employees do not relinquish their First Amendment right to free speech simply by virtue of their employment. (Pickering v. Board of Ed. of Tp. High School Dist. 205, Will County, Illinois (1968) 391 U.S. 563, 568.) However, “[a]t the same time it cannot be gainsaid that the State has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general.” (Ibid.)

Plaintiff has adequately alleged that Tobin’s comments were not merely political in nature but were also supported by racial animus. A jury may ultimately find otherwise – but judgment as a matter of law is not appropriate.

Tobin argues that her conduct was not harassing because it was not directed at anyone in particular at the workplace. This argument is unpersuasive because a number of the allegations concerned direct interactions between Tobin and Plaintiff. Tobin’s argument that the allegedly harassing conduct was not pervasive is similarly unpersuasive, because Plaintiff alleges that Tobin continued making such comments once or twice a week for an entire year. Thus, these were not “isolated incidents of harassment[.]” (Kelly v. Conoco Companies (2011) 196 Cal.App.4th 191, 207, quoting Smith v. Northwest Financial Acceptance (10th Cir. 1997) 129 F.3d 1408, 1414.)

The Court therefore denies Tobin’s motion for judgment on the pleadings.

Sanctions

Plaintiff requests sanctions against the County and its attorneys of record, arguing that this motion is an improper motion for reconsideration. Because this motion was filed by Tobin and her attorneys, and not the County and its attorneys, the Court denies Plaintiff’s request.

The County, in a declaration by its attorney David S. Miller, requests sanctions against Plaintiff for improperly seeking sanctions against the County. The County, however, has not filed it own motion for sanctions.  Based on the record before the Court, the Court does not see grounds for sanctions.  Accordingly, the Court denies the County’s request.