Judge: Joseph Lipner, Case: 22STCV24047, Date: 2023-08-22 Tentative Ruling

Case Number: 22STCV24047    Hearing Date: November 9, 2023    Dept: 72

SUPERIOR COURT OF CALIFORNIA

COUNTY OF LOS ANGELES

DEPARTMENT 72

TENTATIVE RULING

          Defendants City of El Segundo (the “City”), Darrell George, and Jaime Bemudez (collectively, the “Individual Defendants”) demur to the operative second amended complaint (“SAC”) filed by plaintiff Brent Foster Beardmore (“Plaintiff”).  Defendants the City and the Individual Defendants (collectively, “Defendants”) also move to strike certain allegations from the SAC.

          The Court (a) SUSTAINS Defendants’ demurrer to the Third Cause of Action with 20 days’ leave to amend; (b) OVERRULES Defendants’ demurrer to the Fourth Cause of Action; and (c) DENIES Defendants’ motion to strike.  Defendants shall give notice.

Background

Plaintiff filed his original complaint on July 26, 2022 alleging four causes of action:  (1) age discrimination, (2) failure to prevent discrimination, (3) harassment due to age; and (4) hostile work environment.

Defendants demurred to the original complaint.  On December 20, 2022, the Court dismissed the first and second causes of action with prejudice against the Individual Defendants, and the fourth cause of action with prejudice against the City and the Individual Defendants.  The Court also sustained the demurrer as to the third cause of action and granted Plaintiff 15 days’ leave to amend.

Plaintiff filed a first amended complaint on January 4, 2023.  Defendants demurred and, on August 22, 2023, the Court dismissed the third cause of action with prejudice against the Individual Defendants.  The Court also sustained the demurrer as to the new cause of action (alleging “Retaliation/Violation of First Amendment Rights – 42 U.S.C. § 1983) with 30 days’ leave to amend.

          Plaintiff filed the operative SAC on September 6, 2023.

Discussion

Request for Judicial Notice

The Court takes judicial notice of the El Segundo Municipal Code attached as Exhibit A to the request for judicial notice.  The Court declines to take judicial notice of the El Segundo Police Department Policy Manual attached as Exhibit B to the request for judicial notice.

Demurrer to the Third Cause of Action – Failure to Prevent Discrimination

Defendants and Plaintiff agree that the Third Cause of Action is not asserted against the Individual Defendants.  However, Defendants demur to the third cause of action, and move to strike certain allegations in the third cause of action, because the terms of the Third Cause of Action, taken literally, still includes the Individual Defendants.

Defendants are correct.  Paragraph 7 of the SAC states that “Defendants [the City], George, Bermudez and Does 1 through 100 are sometimes collectively referred to as “Defendants.”  Then, throughout the Third Cause of Action, there are references to “Defendants” and their actionable misconduct.

There is an easy fix to this problem.  The Court will grant Defendants’ demurrer to the Third Cause of Action with 20 days leave to amend.  Plaintiff is directed to clarify in the Third Cause of Action that the allegations are against “Defendant City” and if Plaintiff views it as appropriate “Does 1 through 100.”  Thus, for example, Plaintiff can change the first sentence of paragraph 37 to “Plaintiff was continuously harassed and subjected to a hostile work environment by the actions, conduct and comment of the City’s employees . . . . ”  Plaintiff must find a pleading convention that excludes the Individual Defendants from the allegations of the Third Cause of Action.

Demurrer to the Fourth Cause of Action – Retaliation/Violation of First Amendment Rights-42 U.S.C. § 1983

Plaintiff’s Fourth Cause of Action alleges a violation of 42 U.S.C. § 1983, which provides:  “Every person who, under color of any statute, ordinance, regulation custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. . . . ” 

Plaintiff asserts that the Individual Defendants “have implemented and maintained a policy, custom and practice” have discriminated against employees age 50 and over and retaliated against employees who complain about age discrimination.  (FAC ¶ 49.) 

Defendants first argues that this claim is uncertain.  The Court disagrees.  The cause of action states straightforwardly what it claims.

Defendants next argue that the Section 1983 Claim must be dismissed with prejudice as to the City, as no practice or policy is alleged under Monell v. Department of Social Services (1978) 436 U.S. 658, 691.  The Court disagrees.  The Fourth Cause of Action asserts the existence of such a policy in paragraph 49.  Whether the policy is real or invented by Plaintiff is a matter to be determined on the factual record.  It is not ripe for decision at the demurrer stage.  The SAC also alleges that Darrell George is the final decision and policy maker for the City and delegated authority to Jaime Bermudez.  (SAC ¶ 5.)  Calling these allegations “conclusory,” and attempting to argue inferences from various city documents, is not a ground for litigating these ultimate issues at the pleading stage. 

Defendants finally argue that the Section 1983 Claim must be dismissed against the Individual Defendants.  For similar reasons, the Court disagrees.  The Court is unwilling at the demurrer stage to make complex inferences from, for example, the “ESPD Policy Manual Policy 1002.3” that Defendants attempt to rely upon, among others.  These are largely merits-based arguments that are inappropriate at the pleading stage.  Defendants may yet prevail on these arguments, but they must do so on a developed record. 

For all these reasons, the Court overrules Defendants’ demurrer to the Fourth Cause of Action

Defendants’ Motion To Strike

The Court denies Defendants’ motion to strike.  As noted above, the Court declines to strike discrete facts alleged on the basis that they purportedly contradict other facts.  Moreover, the requests to strike certain allegations in the Third Cause of Action are moot because the Court has sustained the demurrer to the Third Cause of Action with leave to amend.