Judge: Kevin C. Brazile, Case: BC623542, Date: 2023-01-06 Tentative Ruling

Hearing Date: January 6, 2023

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

Case No.: 21STCV25046

Matter: Demurrer

Moving Party: Defendant City of Los Angeles

Responding Party: Plaintiff James Cairns

Notice: OK

Ruling: The Demurrer is overruled.  

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 September 29, 2022, Plaintiff James Cairns filed the operative Second Amended Complaint (“SAC”) against Defendants City of Los Angeles, Los Angeles Police Department,  County of Los Angeles, Jorge Rodriguez, David Grimes, Charles Coleman, Troy Collins, Horace Frank, Michel Rey Moore, and Alejandro Vargas for (1) FEHA disability discrimination, (2) FEHA failure to accommodate, (3) FEHA  failure to engage in the interactive process, (4) FEHA harassment, (5) FEHA race discrimination, (6) FEHA retaliation, (7) FEHA failure to prevent discrimination, (8) whistleblower retaliation, (9) wrongful termination, and (10) failure to allow inspection of personnel record.  

The ninth and tenth causes of action have been dismissed.  

Defendant City of Los Angeles demurs to the entirety of the SAC for lack of jurisdiction and 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. Immunity

Defendant first argues it is immune to all causes of action under Gov. Code §§ 815.2, 821.6 because the premise of this suit is a personnel complaint against Plaintiff and the subsequent Board of Rights hearing.

Gov. Code § 815.2(b) states, “a public entity is not liable for an injury resulting from an act or omission of an employee of the public entity where the employee is immune from liability.”

Gov. Code § 821.6 states, “A public employee is not liable for injury caused by his instituting or prosecuting any judicial or administrative proceeding within the scope of his employment, even if he acts maliciously and without probable cause.”

These arguments lack merit.  Gov. Code §§ 815.2, 821.6 relate to vicarious liability, and Plaintiff’s claims primarily arise from the allegation that Plaintiff suffered the adverse action of a constructive termination—a matter of direct liability for the City.  

Defendant also argues that the litigation privilege applies.  The litigation privilege set forth in Civ. Code § 47 generally applies “to any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action.”  (Silberg v. Anderson (1990) 509 Cal.3d 205, 212.)   Statements made in anticipation of litigation are subject to the litigation privilege.  (Briggs v. Eden Council for Hope and Opportunity (1999) 19 Cal.4th 1106, 1115.)  The “principle purpose of [the litigation privilege] is to afford litigants . . . the utmost freedom of access to the courts without fear of being harassed subsequently by derivative tort actions.”  (Id. at p. 213.) 

Defendant has failed to cite authorities indicating that the litigation privilege applies to the discriminatory or retaliatory decision to terminate.   Defendant cites Hagberg v. Cal. Federal Bank (2004) 32 Cal.4th 350 and Gallanis-Politis v. Medina (2007) 152 Cal.App.4th 600, but neither relates specifically to wrongful termination.  Also, Defendant puts forth no substantive analysis.  Therefore, for the time-being, the privilege argument is rejected.

2. Discrimination 

Defendant argues the discrimination claims fails because a timely discriminatory motive has not been pled.  

To analyze claims of discrimination under the FEHA based on a theory of disparate treatment, courts employ a three-step, burden-shifting test.  (Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 354-355 (“Guz”).)  Because evidence of intentional discrimination is rare, the law permits the inference of discrimination based on facts that create “a reasonable likelihood of bias and are not satisfactorily explained.”  (Id. at p. 354.)  The tiered approach assists the Court in identifying such facts.  The approach proceeds as follows:  Once the plaintiff establishes a prima facie case of discrimination, a presumption of discrimination arises.  The burden then shifts to the employer to dispel the presumption by producing admissible evidence that its action was taken for a legitimate, nondiscriminatory reason.  Finally, the burden shifts back to the plaintiff, who then has the opportunity to attack the employer’s proffered reason as pretext for discrimination, or to offer other evidence of discriminatory motive.  (Id. at pp. 355-356.)

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, supra, 24 Cal.4th at p. 355.)

Here, the SAC sufficiently describes a discriminatory motive in that it indicates that Plaintiff was subject to (a) mockery after he became injured and (b) odd comments by officer Grimes about hispanics.  

3. Accommodation & Interactive Process

Defendant argues that “[w]hile [Plaintiff] claims he had restrictions ‘so maybe a desk/computer job would be more appropriate until he had full capabilities to do patrol duties’ (SAC ¶ 26) he does not plead what his restrictions were, whether he provided a medical note endorsing those restrictions, and how sitting in an office for two hours failed to accommodate those purported restrictions. Clearly unfit to return to work, Plaintiff was sent home because of apparent ‘lingering medical condition’ and his own doctor ‘put him out completely again’. (SAC ¶ 84, 140.) Plaintiff does not plead any facts as to how the City failed to accommodate or failed to engage in the interactive process with him.”

The elements of a reasonable accommodation cause of action are (1) the employee suffered a disability, (2) the employee could perform the essential functions of the job with reasonable accommodation, and (3) the employer failed to reasonably accommodate the employee's disability.  (Nealy v. City of Santa Monica (2015) 234 Cal.App.4th 359, 373.)  

“The ‘interactive process' required by the FEHA is an informal process with the employee or the employee's representative, to attempt to identify a reasonable accommodation that will enable the employee to perform the job effectively. [Citation.] Ritualized discussions are not necessarily required.”  (Scotch v. Art Inst. of California (2009) 173 Cal. App. 4th 986, 1013.)

Defendant’s arguments merely raise a factual dispute.  The SAC sufficiently pleads that (1) Plaintiff suffered severe injuries, including a concussion, from a car accident; (2) Plaintiff could eventually perform a desk job; and (3) despite that such office work was apparently feasible, Plaintiff was sent home because the sergeant he was newly assigned to had zero information about Plaintiff’s restrictions.  (See SAC ¶ 26 [“Plaintiff told COLEMAN wants to come back to work, but has restrictions, so maybe a desk/computer job would be more appropriate until he had full capabilities to do patrol duties. COLEMAN angrily responded, ‘your partner came back, you don’t wanna come back, it’s not my problem!’ ”]; SAC ¶ 59.)  The Demurrer is overruled. 

4. Harassment

Defendant argues the harassment claim fails because Plaintiff’s claim merely relates to personnel management.

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.)

Defendant’s argument lacks merit because the harassment claim is at least partially premised on allegations that officers would mock and ridicule Plaintiff about his injury and inability to return to work.  (See, e.g., SAC ¶ 140.)

5. Retaliation 

Defendant argues the retaliation claims fail because “[m]erely engaging in a personnel complaint investigation is not a protected act. Similarly, his claims that he was contacted and compelled for an interview is also not a protected act. (See FAC ¶ 74.) Such an action is not an adverse employment action (nor is it a protected act) and instead falls within the realm of proper personnel management authority.” 

Courts employ the same burden-shifting approach to analyze claims of retaliation under the FEHA.  (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042 (Yanowitz).)  Thus, the plaintiff has the initial burden to establish a prima facie case by showing (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.  (Ibid.)  Once the employee establishes the prima facie case, the burden shifts to the employer, who must present a legitimate, nonretaliatory reason for the adverse employment action.  (Ibid.)  If the employer carries this burden, the court no longer presumes retaliation, and the burden shifts back to the employee to prove intentional retaliation.  (Ibid.)

Similarly, Lab. Code § 1102.5 retaliation requires that (1) the plaintiff establish a prima facie case of retaliation, (2) the defendant provide a legitimate, nonretaliatory explanation for its acts, and (3) the plaintiff show this explanation is merely a pretext for the retaliation.  (Patten v. Grant Joint Union High Sch. Dist. (2005)134 Cal.App.4th 1378, 1384.)

Defendant’s arguments lack merit.  The adverse action is Plaintiff’s constructive discharge.  Further, protected activity is described to the extent Plaintiff alleges he complained of harassing conduct.  

6. Failure to Prevent

Employers are required to “take all reasonable steps necessary to prevent discrimination” in the workplace. (§ 12940, subd. (k).)  [¶] One such reasonable step, and one that is required in order to ensure a discrimination-free work environment, is a prompt investigation of the discrimination claim. (Northrop Grumman Corp. v. Workers' Comp. Appeals Bd. (2002) 103 Cal.App.4th 1021, 1035, 127 Cal.Rptr.2d 285.)  [¶] Other reasonable steps an employer might take include the establishment and promulgation of antidiscrimination policies and the implementation of effective procedures to handle complaints and grievances regarding discrimination.”  (California Fair Emp. & Hous. Com. v. Gemini Aluminum Corp. (2004) 122 Cal.App.4th 1004, 1024–25.)

Given the above rulings, the Demurrer is overruled as to derivative failure to prevent claim.

7. Remaining Argument

Defendant lastly argues that “Plaintiff is barred from suing for any conduct that predates his prior lawsuit. Moreover, pursuant to operation of the statute of limitations, Plaintiff cannot sue for any conduct that occurred prior to December 30, 2017 based on his DFEH filing on December 30, 2020.”  

However, a demurrer cannot be directed at a part of a cause of action.  (Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1047.)

8. Summary 

In sum, the Demurrer is overruled.  The Request for Judicial Notice is granted.  An answer is to be filed within twenty days.

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.