Judge: Joseph Lipner, Case: 24STCV00756, Date: 2024-08-29 Tentative Ruling

Case Number: 24STCV00756 Hearing Date: August 29, 2024 Dept: 72

SUPERIOR COURT OF CALIFORNIA

COUNTY OF LOS ANGELES

DEPARTMENT 72

TENTATIVE RULING

LATRICE HARRIS,

Plaintiff,

LYNWOOD UNIFIED SCHOOL DISTRICT, et al.,

Defendants.

Case No: 24STCV00756

Hearing Date: August 29, 2024

Calendar Number: 4

Defendant Lynwood Unified School District (“LUSD”) demurs to the Complaint filed by Plaintiff Latrice Harris. LUSD demurs to the first, second, third, and fourth claims as to Defendant Brenda Romero, and to the fifth claim as to itself.

The Court SUSTAINS the demurrer to the first, second, third, and fourth claims with respect to Romero only WITHOUT LEAVE TO AMEND. Romero, the individual, should not be a party to the claims asserted in this lawsuit. The claims stand against LUSD, which did not demur to them.

The Court SUSTAINS the demurrer to the fifth claim with respect to LUSD WITH LEAVE TO AMEND. Plaintiff may amend within 10 days.

Background

This is an employment case. The following facts are taken from the allegations of the Complaint, which the Court accepts as true for purposes of the demurrer.

Plaintiff worked for LUSD from 2017 to 2023 as a Benefit and Payroll Manager and Benefit and Risk Manager.

Plaintiff alleges that from around August 2022 until June 2023, Plaintiff was subject to discrimination based on race and color by her supervisor Brenda Romero. Plaintiff alleges that Romero called her derogatory terms, including racial slurs, and encouraged other employees to file meritless complaints against Plaintiff. Plaintiff alleges that Romero told Plaintiff that Romero was going to get Plaintiff fired or make Plaintiff’s working conditions intolerable.

Plaintiff alleges that LUSD constructively terminated her in June 2023.

Plaintiff alleges that in October 2001, Ms. Rodriguez, a candidate for the LUSD school board who was later elected to the board, told the board that their job was to get rid of black people, using a racial slur. Plaintiff alleges that since the time of Rodriguez’s election to the board, LUSD has targeted black employees in the district for harassment, intimidation, removal, and demotion based on their race.

Plaintiff filed this action against LUSD and Romero on January 10, 2024, raising claims for (1) discrimination based on race; (2) discrimination based on color; (3) retaliation in violation of FEHA; (4) failure to prevent discrimination, harassment, and retaliation; and (5) intentional infliction of emotional distress (“IIED”).

LUSD demurred to the complaint on July 23, 2024. The hearing date was set for August 15, 2024.

Plaintiff did not file an opposition prior to August 15, 2024.

On August 13, 2024, two days before the scheduled hearing, Plaintiff filed a First Amended Complaint (“FAC”).

On August 15, 2024, Plaintiff did not appear at the hearing because Plaintiff’s counsel assumed that the FAC would moot the demurrer and that the demurrer would therefore be taken off calendar. Plaintiff’s counsel had another hearing on the same day, which ran the full day. The Court continued the hearing to August 29, 2024.

On August 22, 2024, five court days before the August 29, 2024 hearing, Plaintiff filed an opposition.

On August 23, 2024, LUSD filed a reply.

Legal Standard

As a general matter, 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 pleading alone, and not the evidence or facts alleged.” (E-Fab, Inc. v. Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.) The court assumes the truth of the complaint’s properly pleaded or implied factual allegations. (Ibid.) The only issue a demurrer is concerned with is whether the complaint, as it stands, states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.)

Where a demurrer is sustained, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the plaintiff to show the court that a pleading can be amended successfully. (Ibid.; Lewis v. YouTube, LLC (2015) 244 Cal.App.4th 118, 226.) However, “[i]f there is any reasonable possibility that the plaintiff can state a good cause of action, it is error to sustain a demurrer without leave to amend.” (Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 245).

Discussion

The First Amended Complaint

“A party may amend its pleading once without leave of the court at any time before the answer, demurrer, or motion to strike is filed, or after a demurrer or motion to strike is filed but before the demurrer or motion to strike is heard if the amended pleading is filed and served no later than the date for filing an opposition to the demurrer or motion to strike. A party may amend the pleading after the date for filing an opposition to the demurrer or motion to strike, upon stipulation by the parties. The time for responding to an amended pleading shall be computed from the date of service of the amended pleading.” (Code Civ. Proc., § 472, subd. (a).)

Plaintiff’s opposition was due 9 days before the August 15, 2024 hearing. (Code Civ. Proc., § 1005, subd. (b).) In the absence of a stipulation or court order, Plaintiff’s FAC was therefore not timely filed and is therefore not operative.

The operative pleading at issue on this demurrer remains the original Complaint. If Plaintiff wishes to amend the Complaint to add her negligent hiring, retention, and supervision claim, she must file a motion for leave to amend.

Discrimination Based on Race – First Claim

To establish a claim for discrimination, a plaintiff must show “that (1) [the plaintiff] was a member of a protected class, (2) [the plaintiff] was qualified for the position he sought or was performing competently in the position [they] held, (3) [the plaintiff] suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some other circumstance suggests discriminatory motive.” (Guz v. Bechtel National Inc. (2000) 24 Cal.4th 317, 355.)

LUSD demurs only as to Romero.

“[I]ndividuals who do not themselves qualify as employers may not be sued under the FEHA for alleged discriminatory acts.” (Reno v. Baird (1998) 18 Cal.4th 640, 663.)

Plaintiff does not argue that Romero is a proper defendant in this action. Plaintiff argues that she only seeks to impose liability on LUSD – through the doctrine of respondeat superior – and not Romero. However, Plaintiff’s Complaint names Romero individually as a defendant for all of the first four claims.

The Court therefore sustains the demurrer to this claim with respect to Romero without leave to amend.

Discrimination Based on Color – Second Claim

As discussed above, non-employer individuals cannot be sued for discrimination under FEHA.

The Court therefore sustains the demurrer to this claim with respect to Romero without leave to amend.

Retaliation – Third Claim

The elements of a cause of action for failure to prevent harassment or retaliation are: (1) actionable discrimination or harassment by employees or nonemployees; (2) defendant’s legal duty of care toward plaintiff (i.e., defendant is the plaintiff’s employer); (3) breach of that duty (i.e., failure to take all reasonable steps necessary to prevent discrimination and harassment from occurring); (4) legal causation; and (5) damages to plaintiff. (Trujillo v. North County Transit District (1998) 63 Cal.App.4th 280, 287, 289; Bradley v. Department of Corrections & Rehabilitation (2008) 158 Cal.App.4th 1612, 1630; Gov. Code, § 12940.)

“[T]he same rule applies to actions for retaliation that applies to actions for discrimination: The employer, but not nonemployer individuals, may be held liable.” (Jones v. Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158, 1160.)

The Court therefore sustains the demurrer to this claim with respect to Romero without leave to amend.

Failure to Prevent Discrimination, Harassment, and Retaliation – Fourth Claim

FEHA’s requirement to take all reasonable steps to prevent harassment and discrimination falls on employers, and not non-employer individuals. (Gov. Code, § 12940, subds. (j)(1) [“An entity shall take all reasonable steps to prevent harassment from occurring.”], (k) [“[It is unlawful] [f]or an employer, labor organization, employment agency, apprenticeship training program, or any training program leading to employment, to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring.”].)

The Court therefore sustains the demurrer to this claim with respect to Romero without leave to amend.

Intentional Infliction of Emotional Distress – Fifth Claim

“The elements of a prima facie case for the tort of intentional infliction of emotional distress are: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct. Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.” (Wilson v. Hynek (2012) 207 Cal.App.4th 999, 1009, citation and ellipses omitted.) “Whether a defendant’s conduct can reasonably be found to be outrageous is a question of law that must initially be determined by the court; if reasonable persons may differ, it is for the jury to determine whether the conduct was, in fact, outrageous.” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 534.)

“[T]here is no common law tort liability for public entities in California; such liability is wholly statutory.” (In re Groundwater Cases (2007) 154 Cal.App.4th 659, 688.) “Except as otherwise 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.” (Gov. Code, § 815.)

“[B]ecause under the Tort Claims Act all governmental tort liability is based on statute, the general rule that statutory causes of action must be pleaded with particularity is applicable.” (Lopez v. Southern Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780, 795.) “This means that, to state a cause of action against a public entity, every fact material to the existence of its statutory liability must be pleaded with particularity. (Peter W. v. San Francisco Unified Sch. Dist. (1976) 60 Cal.App.3d 814, 819.) “Since the duty of a governmental agency can only be created by statute or ‘enactment,’ the statute or ‘enactment’ claimed to establish the duty must at the very least be identified.” (Searcy v. Hemet Unified School Dist. (1986) 177 Cal.App.3d 792, 802.)

Plaintiff fails to identify a statute setting forth the applicable duty for her IIED claim.

Plaintiff argues that she identifies Government Code, section 815.2, subd. (a), which holds public entities liable for injuries caused by their employees within the scope of employment. Plaintiff only raises this statute in the FAC, which is not the operative complaint and not the subject of this demurrer.

The Court therefore sustains the demurrer to this claim with respect to LUSD with leave to amend.