Judge: Kevin C. Brazile, Case: 23STCV16538, Date: 2023-10-25 Tentative Ruling

Hearing Date: November 29, 2023

Case Name: Hoxha v. The Regents of the University of California, et al.

Case No.: 22STCV32792

Matter: Demurrers (2x) 

Moving Party: (1) Defendants Jessica Regis Hodge and Yony Perdomo

(2) Defendant The Regents of the University of California

Responding Party: Plaintiff Selim Hoxha

Notice: OK

Ruling: The Demurrer of the individual Defendants is sustained, without leave 

to amend.

The Demurrer of the Regents is sustained as to the fifth cause of 

action, but is overruled as to the thirteenth cause of action.  Leave to amend is denied.

Moving parties 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 July 28, 2023, Plaintiff Selim Hoxha filed the operative Second Amended Complaint (“SAC”) against Defendants The Regents of the University of California, Jessica Regis Hodge, and Yony Perdomo for (1) FEHA disability discrimination, (2) FEHA failure to accommodate, (3) FEHA age discrimination, (4) FEHA retaliation for requesting accommodations, (5) FEHA harassment, (6) FEHA failure to prevent discrimination, retaliation, and harassment, (7) violation of paid sick leave, etc., (8) retaliation and interference/violation of kin care, (9) interference with COVID-19 supplemental paid sick leave, (10) negligent hiring and retention, (11) whistleblower retaliation, (12) violation of the UCL, and (13) FEHA association based discrimination.

Defendants Jessica Regis Hodge and Yony Perdomo demur to the fifth cause of action for failure to state sufficient facts.  Specifically, Defendants argue that there is no severe or pervasive conduct pleaded.  

Defendant The Regents of the University of California separately demurs to the fifth and thirteenth causes of action for failure to state sufficient facts. 

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.)

1. Harassment 

To establish a prima facie case of harassment under the FEHA, the plaintiff must show that (1) she was a member of a protected class, (2) she was subjected to unwelcome harassment based on her protected status, and (3) the harassment unreasonably interfered with her work performance by creating an intimidating, hostile, or offensive work environment.  (Thompson v. City of Monrovia (2010) 186 Cal.App.4th 860, 876.)  “ ‘Harassment cannot be occasional, isolated, sporadic, or trivial; rather the plaintiff must show a concerted pattern of harassment of a repeated, routine or a generalized nature.’ ”  (Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 131.)  In other words, the harassment must be “sufficiently severe or pervasive to alter the condition of the victim’s employment and create an abusive environment,” as judged by the reasonable person belonging to the plaintiff’s protected class.  (Thompson, at p. 877.)

The SAC states that “HODGE and PERDOMO, who, told PLAINTIFF (HODGE and PERDOMO told PLAINTIFF) that he had to work in the Isolation buildings no matter what, that he should not complain or ask for accommodation, that his disabilities were his issue and he still had a job to do, that he could not use his health and age as an excused to no go into the Isolation buildings, that they did not care about his health and age issues, he just has to do his job, that his health concerns were not a reason for UCLA to change the way they do things, they told PLAINTIFF they will not accommodate him, they made PLAINTIFF work in an unsafe work environment, they refused to accommodate PLAINTIFF, they refused a good faith interactive process with PLAINTIFF, they told PLAINTIFF they will not change his job in any way to accommodate him, as well as various other harassing comments and conduct.”

There are no allegations of severe or pervasive conduct constituting harassment.   The SAC merely references a number of personnel management issues (particularly the denial of accommodations and job assignments), which do not properly relate to the subject claim.  While personnel management may serve as evidence of harassment where there is a widespread pattern of bias communicating a hostile message (Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 763), personnel management alone is not sufficient.  The allegations about various comments merely relate to denying accommodation requests despite Plaintiff’s disabilities.

Therefore, the Demurrers are sustained as to the fifth cause of action, without leave to amend.

2. Associational Discrimination

With respect to the thirteenth cause of action, Defendant Regents of the University of California argues that Plaintiff “does not allege any facts to suggest that the Regents knew or should have known anything about Plaintiff’s relatives or associates. To be sure, Plaintiff does not allege he informed the Regents of any such facts. Nor does he allege any facts to suggest that the Regents knew or should have known that Plaintiff’s relative or associate had a disability.” 

It is an unlawful employment practice under the FEHA to discriminate against any person because of a physical or mental disability.  (Gov. Code § 12940(a).)  Associational disability discrimination prohibits discrimination against persons who are so closely associated with a disabled person that they are, in effect, disabled for purposes of employment under FEHA. (Castro-Ramirez v. Dependable Highway Express, Inc. (2016) 2 Cal.App.5th 1028, 1036.)  A prima facie case based on associational disability discrimination requires a showing that: “(1) the plaintiff suffered from a disability, (2) the plaintiff was otherwise qualified to do his or her job, with or without reasonable accommodation, and (3) the plaintiff was subjected to adverse employment action because of the disability.” (Id. at p. 1037.)  Under the third element, “the disability must be a substantial factor motivating the employer's adverse employment action.”  (Ibid.; see Castro-Ramirez, supra, at pp. 1042–1043, [holding that an employee had associational disability claim for being terminated after requesting scheduling accommodations to administer daily dialysis to his disabled son]; Rope v. Auto-Chlor System of Washington, Inc. (2013) 220 Cal.App.4th 635, 642, [holding that an employee had a claim for associational disability discrimination after he was fired for requesting time off to donate a kidney to his ailing sister].)

Contrary to Defendant’s argument, the SAC pleads the ultimate facts of a relative’s disability and Defendant’s knowledge of the same.  The SAC states that “PLAINTIFF also needed time off to deal with disabled family members, which PLAINTIFF requested the time off/ability to leave to deal with disabled family members in order to seek diagnosis, care or treatment for said family members. Said time off/ability to leave was covered by Paid Sick Leave, Kin Care and disability accommodation leave, among other laws. ”  (SAC ¶ 29.)  “PLAINTIFF'S protected status under FEHA is PLAINTIFF'S family member's disabilities, including, but not limited to depression, and other physical and/or mental disabilities, which limited major physical, mental, social and/or working life activities and made the achievement of major physical, mental, social and/or working life activities difficult (2) PLAINTIFF’s family members had a record and/or history of, which was known to EMPLOYER, and (3) EMPLOYER regarded and/or treated PLAINTIFF'S family member as having and/or having had, a condition that makes achievement of a life activity difficult.”  (SAC ¶ 51.)

Liberally construing the SAC, Plaintiff seems to allege that Defendant knew of Plaintiff’s relative’s disability and that Defendant could have granted Plaintiff the accommodation of time off, but did not do so due to disability animus.  This is sufficient.

In sum, the Regents’ Demurrer is sustained as to the fifth cause of action, but is overruled as to the thirteenth cause of action.  Leave to amend denied.

The Demurrer of the individual Defendants is sustained, without leave to amend.

Moving parties 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.