Judge: Kevin C. Brazile, Case: 23STCV25049, Date: 2024-05-08 Tentative Ruling

Hearing Date: May 8, 2024

Case Name: Sullivan v. Los Angeles Community College District, et al.

Case No.: 23STCV17401

Matter: (1) Demurrer

(2) Motions to Strike (3x)

Moving Party: (1) Defendants Los Angeles Community College District, Suleman 

Ishaque, Earic Dixon-Peters, and Genice Sarcedo-Magruder

(2) Suleman Ishaque, Earic Dixon-Peters, and Genice Sarcedo-Magruder

Responding Party: Plaintiff Kathleen Sullivan

Notice: OK

Ruling: The Demurrer is overruled.

The Motions to Strike of Ishaque and Dixon-Peters are denied.

The Motion to Strike of Sarcedo-Magruder 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. 

This is an employment action in which Plaintiff Kathleen Sullivan asserts seven causes of action pursuant to the FEHA.

1. Demurrer

Defendants Los Angeles Community College District, Suleman Ishaque, Earic Dixon-Peters, and Genice Sarcedo-Magruder demur to the entirety of the First Amended Complaint (“FAC”) for uncertainty, lack of jurisdiction, and failure to state sufficient facts.  Specifically, they argue that Plaintiff has failed to adequately allege exhaustion.

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.)

The FAC states: “Prior to filing this action, plaintiff exhausted her administrative remedies by filing a timely administrative complaint with the California Civil Rights Department (‘CRD’), formerly known as the Department of Fair Employment and Housing (‘DFEH’) and receiving a DFEH right-to-sue letter. This suit is brought within one year of Plaintiff’s ‘Right to Sue’ letters.”  

The Court believes this is adequate and that further facts can be ascertained in discovery.  Thus, the Demurrer is overruled.  An answer is to be filed within 20 days.

2. Motion to Strike 

Defendants Suleman Ishaque, Earic Dixon-Peters, and Genice Sarcedo-Magruder seek to strike the FAC’s references to punitive damages. 

Motions to strike are used to challenge defects in the pleadings not subject to demurrer.  Any party may move to strike the whole or any part of a pleading within the time allotted to respond to the pleading.  (Code Civ. Proc. § 435(b)(1).)  The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the Court is required to take judicial notice.  (Id. § 437(a).)  The Court may strike out any irrelevant, false, or improper matter inserted in any pleading, and strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.  (Id. § 436.)  An “irrelevant” matter includes any “demand for judgment requesting relief not supported by the allegations of the complaint or cross-complaint.”  (Id. § 431.10(b)(3), (c); see also Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1036-1042.)

Punitive damages are available when the plaintiff establishes oppression, fraud, or malice by clear and convincing evidence.  (Civ. Code § 3294(a).)  

Malice means “conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.”  (Civ. Code § 3294(c)(1).)  In this context, despicable conduct is conduct considered “so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people.”  (Scott v. Phoenix Schools, Inc. (2009) 175 Cal.App.4th 702, 715, internal quotation marks omitted.)  Oppression means “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.”  (Civ. Code § 3294(c)(2).)  Fraud means “an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.”  (Id. § 3294(c)(3).)

The Motions of Ishaque and Dixon-Peters are denied.  Indeed, the FAC sufficiently alleges malice or oppression to the extent it is stated, for example, that (1) Ishaque called Plaintiff “stupid” and “old”; (2) Ishaque spit chewing tobacco onto Plaintiff and then chuckled; (3) Ishaque had an outburst about Plaintiff; (4) Dixon-Peters had stated to Ishaque that senior employees like Sullivan should be replaced with younger, cheaper employees; (4) Dixon-Peters stated he was not getting enough “bang for his buck” with employees like Sullivan; (5) “Dixon-Peters also stated his preference that they retire so he could hire younger counselors for less money”; and (6) despite not being authorized to do so, Dixon-Peters disclosed to Sullivan that Ishaque had filed a sexual harassment grievance against her.  Factual issues remain.

On the other hand, the Motion of Genice Sarcedo-Magruder is granted.  It is not apparent what conduct would justify punitive damages, let alone a harassment claim.  The FAC focuses on Magruder’s personnel management conduct or the like.  Specifically, it focuses on Magruder conducting an inadequate and flawed investigation and coming to a conclusion that Plaintiff states did not have an evidentiary basis.  Magruder is also alleged to have moved Plaintiff close to Ishaque’s office and then to have inexplicably stated that another office could not be provided.  This alone is insufficient.  The Court is inclined to deny 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.