Judge: Kevin C. Brazile, Case: 22STCV21501, Date: 2023-04-03 Tentative Ruling

Hearing Date: April 3, 2023

Case Name: Knopf v. City of Los Angeles, et al.

Case No.: 21STCV25775

Matter: Motion for Judgment on the Pleadings

Moving Party: Defendant City of Los Angeles

Responding Party: Plaintiff Rick Knopf

Notice: OK

Ruling: The Motion for Judgment on the Pleadings is granted, without leave 

to amend.

Moving party to give notice.

If counsel do not submit on the tentative, they are strongly 

encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic. 

On November 11, 2021, Plaintiff Rick Knopf filed the operative Second Amended Complaint (“SAC”) against the City of Los Angeles and the Los Angeles Police Department (“LAPD”) for (1) FEHA failure to accommodate, (2) FEHA failure to engage in the interactive process, (3) FEHA discrimination, (4) and FEHA retaliation.  Among other things, Plaintiff alleges he had “cough-variant asthma, upper airway cough syndrome, and scarring of the lungs”, and that his employer, the LAPD, did not allow him to be unmasked outdoors pursuant to his doctor’s recommendation.  

Defendant City of Los Angeles seeks judgment on the pleadings as to the third and fourth causes of action, contending that Plaintiff fails to plead (1) protected activity for the purposes of retaliation or (2) any adverse action.

When considering demurrers, courts read the allegations liberally and in context, and “treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.” (Serrano v. Priest (1971) 5 Cal.3d 584, 591.)  “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.”  (Hahn v. Mirda¿(2007) 147 Cal.App.4th 740, 747.)  It is error “to sustain a demurrer without leave to amend if the plaintiff shows there is a reasonable possibility any defect identified by the defendant can be cured by amendment.”  (Aubry v. Tri-City Hospital Dist.¿(1992) 2 Cal.4th 962, 967.)

Under the FEHA, a prima facie case of discrimination generally consists of the following elements: (1) the plaintiff is a member of a protected class, (2) the plaintiff was qualified for the position he or she sought or was performing competently in the position he or she held, (3) the plaintiff suffered an adverse employment action, and (4) some other circumstance suggesting discriminatory motive.  (Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 355.)

A prima facie case of retaliation requires a showing by the plaintiff that (1) he or she engaged in protected activity, (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer’s action.  (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.)

An adverse employment action is an action which “materially affect[s] the terms, conditions, or privileges of employment.”  (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal. 4th 1028, 1054.)  “An adverse employment action includes conduct that is reasonably likely to impair a reasonable employee's job performance or prospects for advancement or promotion.”  (CACI no. 2509.) 

Plaintiff argues that ignoring an employee’s health concerns may be deemed an adverse employment action.  However, as discussed in connection with Defendant’s prior demurrer, Plaintiff did not have a work restriction that required addressing.  

Plaintiff also argues that three citizen complaints were adjudicated against him for not wearing a mask outdoors.  But, causation seems to be missing.  Given that Plaintiff did not have a work restriction requiring an accommodation and Plaintiff has admitted to not wearing a mark, under Plaintiff’s allegations, the complaints were rightfully adjudicated against him.  Defendant could not honestly adjudicate those complaints in favor of Plaintiff if Plaintiff did not need an accommodation. 

Plaintiff further argues that he suffered an adverse employment action “after he reported Neiman’s unlawful conduct to Lt. Porter, who refused to investigate Plaintiff’s claim of discrimination and retaliation, and allowed the illegal work environment to continue unabated, in complete disregard for Department policy and Government Code Sections 12940(j) and (k).”

However, “[w]ithout more, merely failing to investigate workplace complaints does not rise to the level of an adverse employment action. See U.S. Equal Emp. Opportunity Comm'n v. Glob. Horizons, Inc., 2012 WL 12883669, at *6 (D. Haw. Oct. 9, 2012) (‘Court rejects the EEOC's argument that a failure to investigate upon receipt of a complaint constitutes an adverse employment action.’); McEnroe v. Microsoft Corp., 2010 U.S. Dist. LEXIS 122477, 2010 WL 4806864, at *5 (E.D. Wash. Nov. 18, 2010) (‘A “failure to investigate” is not an adverse employment action for purposes of a discrimination claim.’); Collins v. Potter, 2010 U.S. Dist. LEXIS 135308, 2010 WL 5376221, at *6 (S.D. Cal. Dec. 22, 2010) (finding that failure to investigate a complaint of vandalism is not an adverse employment action).”  (Nguyen v. McHugh (N.D.Cal. 2014) 65 F. Supp. 3d 873, 894.)

Because Plaintiff has failed to plead an adverse employment action, the Motion for Judgment on the Pleadings is granted, without leave to amend.

Moving party to give notice.

If counsel do not submit on the tentative, they are strongly encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic.