Judge Kevin C. Brazile, Case Number: 23STCV08214, Date: 2024-03-13 Tentative Ruling

Ruling: The City’s Demurrer to Plaintiff’s First Amended Complaint is SUSTAINED in part and OVERRULED in part. The Demurrer is sustained as to the first cause of action, but is overruled as to the second, fourth, and sixth causes of action. Plaintiff is granted 20 days leave to amend.

Daniela Cardenas filed an initial Complaint on April 13, 2023 against her former employer, the City of Los Angeles (the City) and two former supervisors: Alyssa Mireles (Mireles) and Armando Cabrera (Cabrera). The initial Complaint was followed by a First Amended Complaint (FAC) filed on November 13, 2023 alleging six causes of action:

The motion now before the Court is the City’s Demurrer to the FAC. The City demurs to the first, second, fourth, and sixth causes of action. Plaintiff opposes the Demurrer, and the City has filed a reply.

Plaintiff was hired by Defendant as a Maintenance Laborer in October of 2016. As issues with the City’s efforts to address the ongoing homelessness crisis in Los Angeles came about, Plaintiff alleges that employees like her were not informed of the ongoing lawsuits filed by unhoused residents who sued the City. (FAC, ¶¶ 19-20.) Plaintiff alleges that this was part of a wider issue of the City failing to instruct employees like Plaintiff on the legal requirements for the disposition of property that was seized from homeless encampments during cleanups ordered by the City.

Plaintiff points to two cases Mitchell v. City of Los Angeles 2:16-cv-01750 (“Mitchell”) and Garcia, et al. v. City of Los Angeles, Case No. 2:19-cv-6182 (“Garcia”), where Defendant was sued for seizing and destroying the property of unhoused residents without giving the unhoused residents an opportunity to be heard. (FAC, ¶ 23.) Plaintiff alleges that at the conclusion of Mitchell, the City agreed it would not “seize property as part of a cleanup of an area where homeless people’s property is located, absent an objectively reasonable belief that it is abandoned, presents an immediate threat to public health or safety, is evidence of a crime, or is contraband.” (FAC ¶ 24.) Additionally, the City agreed it would maintain seized items in a secure location for at least 90 days. (Id.) In meeting the latter requirement, the City was to document and maintain records of the property seized. Plaintiff alleges that in order to comply with this term of the settlement in April of 2021 Plaintiff’s supervisors, Alyssa Mireles (Mireles) and Salvador Rosales (Rosales), requested that Plaintiff fabricate documentation of the items from cleanups that occurred in 2020. (FAC, ¶ 35.) Plaintiff informed her supervisors that this could not be done because the items had never been earmarked, and any documentation would not be accurate. (FAC, ¶ 36.) Plaintiff was requested to do it anyway, but Plaintiff refused.

Plaintiff alleges that soon after refusing to do so, she was subjected to a pattern of retaliation and gender discrimination. In order to induce Plaintiff to quit, the City removed Plaintiff from working with her regular partner, assigned Plaintiff to unsafe locations, and assigned Plaintiff to less desirable assignments. (FAC, ¶¶ 37-42.) Plaintiff additionally alleges gender discrimination because when asked why she was not eligible for overtime, but her male peers were, her supervisor Rosales responded that sanitation was a “man’s job”. (FAC, ¶ 38.) Plaintiff was one of the only women in her department. Plaintiff was continually denied overtime and regular work assignments, whereas her male counterparts were regularly given the opportunity to earn overtime wages. (FAC, ¶ 40.) Plaintiff informed Rosales about this issue in January of 2022, however Rosales ignored the Complaint. On March 10, 2022, Plaintiff filed a formal complaint alleging gender discrimination. (FAC, ¶ 41.) Plaintiff was then terminated on March 30, 2022. (FAC, ¶ 44.)

“Before filing a demurrer…the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (CCP § 430.41(a).) Defendant presents the Declaration of M. Aaron Neishlos (Neishlos Decl.) which states that the parties conferred telephonically on December 11, 2023, however, despite a robust discussion, the parties were not able to come to an agreement. Nonetheless, the requirements of CCP § 430.41(a) have been satisfied, therefore, the Court turns its attention to the Demurrer.

“[A] demurrer tests the legal sufficiency of the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.) A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (See Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994 [in ruling on a demurrer, a court may not consider declarations, matters not subject to judicial notice, or documents not accepted for the truth of their contents].) For purposes of ruling on a demurrer, all facts pleaded in a complaint are assumed to be true, but the reviewing court does not assume the truth of conclusions of law. (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 967.)

A. Exhaustion of administrative remedies is not required for CCP § 1102.5, however, filing a Government Claim is.

As to the first cause of action for retaliation in violation of LAB § 1102.5, the City argues that Plaintiff did not exhaust administrative remedies as required. As explained below, this is only partially accurate.

The City relies on several cases[1] that stand for the proposition that a plaintiff must exhaust an administrative remedy first prior to bringing suit, otherwise the case presents a jurisdictional defect. However, an amendment to LAB § 244 that came into effect in 2014 clarified that: “An individual is not required to exhaust administrative remedies or procedures in order to bring a civil action under any provision of this code, unless that section under which the action is brought expressly requires exhaustion of an administrative remedy.” (LAB § 244(a).)

LAB § 1102.5 has no such express requirement. All of the City’s cases, except for one, predate this amendment. The case the is post-LAB § 244 amendment is Terris v. County of Santa Barbara (2018) 20 Cal.App.5^th 551 which only presents the nuance that although Plaintiff would not be required to exhaust the administrative remedy of bringing the issue before the Labor Commissioner, Plaintiff would still be required to exhaust any internal administrative remedies with her employer. (Terris, supra, at 557.) However, the City makes no such claim that there was an adequate internal administrative remedy available to Plaintiff, nor that she did not engage with it.

Additionally, with regard to Plaintiff’s claims that are premised as violations of the Federal Employment and Housing Act (FEHA), Plaintiff obtained the required Right to Sue letter from the California Department of Fair Employment and Housing. (FAC, Exh. A.)

However, with regard to this first cause of action it is unclear whether Plaintiff filed the required Government Claim pursuant to GOV § 945.4. The purpose of the statute, known as the Government Claims Act, is “to provide the public entity sufficient information to enable it to adequately investigate claims and to settle them, if appropriate, without the expense of litigation.” (Hernandez v. City of Stockton (2023) 90 Cal.App.5^th 1222, 1231; Stockett v. Association of Cal. Water Agencies Join Powers Ins. Authority (2004) 34 Cal.4^th 441, 446. Also see GOV §§ 910 and 945.4.) Plaintiff alleges that the Government Claim form was filed on September 29, 2022, however, no form is attached to the FAC, nor are the claims made in the form described within the FAC. Additionally, although Plaintiff’s opposition papers include the Declaration of Julian Burns King (King Decl.) which states that the form was filed, no form nor denial letter was attached. Without this prerequisite, the cause of action must fail. Therefore, the Demurrer is sustained as to the first cause of action.

Next, the City argues that Plaintiff’s claim for gender discrimination under FEHA fails to state a cause of action. The Court disagrees. Generally, the plaintiff must provide evidence that (1) they were a member of a protected class, (2) they were qualified for the position they sought, or they were performing competently in the position he held, (3) they 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 Nat. Inc. (2000) 24 Cal.4^th 317, 355.) The FAC’s allegations fulfill each of these elements.

Plaintiff asserts that, as per the first element, she is a woman, and as per the second element she was performing competently in the position held. As to this second element of competent performance, the City contends that the FAC’s allegations assert the contrary. The Court finds this contention baseless. Plaintiff was hired to her position in 2016, and in 2019, instead of being demoted or terminated, was offered a different position, which she accepted. (FAC, ¶ 19.) The City fails to explain how this demonstrates incompetence.

Plaintiff then alleges the third element, that after refusing to fabricate documentation, she was assigned to less desirable work assignments (FAC, ¶ 37), removed from working with her regular partner (FAC, ¶ 39), and required to complete cleanups in unsafe locations. (Id.) In arguing that Plaintiff fails to meet the last element – that some other circumstance suggests discriminatory motive – the City counters that “Plaintiff fails to allege that she received less favorable work assignments or that male employees could work overtime yet she could not.” (Demurrer, 5: 17-18.) This is incorrect, Plaintiff presents those exact allegations almost verbatim in the FAC when the FAC states that (1) she was regularly denied the opportunity to work overtime, unlike her male counterparts, and (2) when she rose this issue to her supervisor’s attention, her supervisor responded that sanitation was a “man’s job”. (FAC, ¶¶ 38-40. Also see ¶ 40 alleging that Plaintiff was denied regular work assignments and being treated unfairly because she was one of the only women in “Washington Yard”.) The Demurrer to the second cause of action is overruled.

The City next attacks the FAC’s fourth cause of action for failure to prevent discrimination and retaliation. “To state a claim for failure to prevent harassment, a plaintiff must show: (1) “plaintiff was subjected to discrimination, harassment or retaliation;” (2) “defendant failed to take all reasonable steps to prevent discrimination, harassment or retaliation;” and (3) “this failure caused plaintiff to suffer injury, damage, loss or harm.” [Citation]. “The causation element of a section 12940(k) claim requires an employee show that the discriminatory conduct was a ‘substantial factor’ in causing his harm.” [Citation]. Further, this section applies to “ ‘an employer who knew or should have known of discrimination or harassment’ and ‘fail[s] to take prompt remedial action.’ ” [Citation].” (Andrade v. Arby’s Restaurant Group, Inc. (2016) 225 F.Supp.3d 1115. Also see CA BAJI 2527.)

The City’s arguments on Demurrer here are three-fold. First, the City contends that this fourth cause of action depends on whether the second cause of action is pled properly. The City argues that the second cause of action was not pled properly, for reasons aforementioned, the Court disagrees and dismisses this contention. Second, the City contends they were not on notice of the discrimination until January of 2022. (Demurrer, 7:5-6.) The City fails to make clear why this contention is relevant. There is no time frame requirement for notice in this cause of action, and moreover, when Plaintiff did bring the issue to Rosales in January of 2022, Plaintiff was then terminated just two months later. (FAC ¶¶ 40-44.) Third, the City contends that Plaintiff has not described how the City failed to act or what measures it should have taken to prevent the discrimination. This contention is meritless. Plaintiff makes clear, as aforementioned, what actions were taken to subject her to gender discrimination, fulfilling the first element. In fulfilling the second element, Plaintiff simply needs to demonstrate defendant failed to take all reasonable steps to prevent the discrimination and retaliation. Plaintiff not only makes no mention of a proper investigation, but states that two months after raising the issue, and mere weeks after filing a formal complaint, she was terminated. This suffices to show that the City failed to prevent retaliation against Plaintiff. Finally, Plaintiff alleges damages. To conclude, the Demurrer to the fourth cause of action is overruled.

D. Plaintiff properly pleads a claim for failure to produce personnel and payroll records

Although the City contends that LAB §§ 226, 432, and 1174 do not apply to it because the City is a charter city, it concedes that LAB § 1198.5 does apply. However, in furtherance of its argument that Plaintiff did not properly plead this cause of action, the City argues that LAB § 1198.5 does not provide a private right of action. The Court disagrees. LAB § 1198.5 provides that if a current or former employer fails to permit a current or former employee to inspect or copy personnel records “A current or former employee may also bring an action for injunctive relief to obtain compliance with this section, and may recover costs and reasonable attorney's fees in such an action.” (LAB § 1198.5(l).) The City additionally argues that Plaintiff fails to show she suffered damages as a consequence of the alleged failure of the City to timely provide her records. However, no such element is required under LAB § 1198.5. Therefore, the Demurrer to the sixth cause of action is overruled.

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 [court shall not “sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment”]. As there is reasonable possibility of successful amendment, the Court grants Plaintiff 20 days leave to amend.

The City’s Demurrer to Plaintiff’s First Amended Complaint is SUSTAINED in part and OVERRULED in part. The Demurrer is sustained as to the first cause of action, but is overruled as to the second, fourth, and sixth causes of action. Plaintiff is granted 20 days leave to amend.

[1] The cases relied upon include:

1. Pan Pacific Properties, Inc. v. County of Santa Cruz (1978) 81 Cal.App.3d 244

2. Campbell v. Regents of Univ. of Cal. (2005) 35 Cal.4^th 311

3. Terris v. County of Santa Barbara (2018) 20 Cal.App.5th 551

4. Alliance Financial v. City & County of San Francisco (1998) 64 Cal.App.4th 635