Judge Malcolm Mackey, Case 20STCV35412 2022-10-31 Tentative Ruling

Judge: Malcolm Mackey, Case: 20STCV35412, Date: 2022-10-31 Tentative Ruling

Case Number: 20STCV35412 Hearing Date: October 31, 2022 Dept: 55

CALDERON, v. COUNTY OF LOS ANGELES 20STCV35412

Hearing Date: 10/31/22, Dept. 55

#4: DEMURRER TO THE FIRST AMENDED COMPLAINT; MOTION TO STRIKE PORTIONS OF THE FIRST AMENDED COMPLAINT.

Notice: Okay

No Opposition (Second Amended Complaint filed).

MP: Defendant COUNTY OF LOS ANGELES.

RP:

Summary

On 9/14/20, Plaintiff OSCAR CALDERON, filed a Complaint.

On 3/4/21, Plaintiff filed a First Amended Complaint.

On 8/1/22, Plaintiff, a former Deputy Sheriff, caused to be received a Second Amended Complaint, alleging: Defendant SARGEANT MARK BAILEY subjected Plaintiff to a hostile working environment and discrimination. Other defendants, having a gang-like mentality of conspiring against those outside the inner group, did not respond to Plaintiff’s complaints. Plaintiff complained of discrimination based on disability, sexual orientation, race, and retaliation for filing a worker's compensation claim. Also, the employer failed to accommodate head, back and knee injuries that Plaintiff sustained from an automobile accident. After adverse employment actions done in retaliation, the employer wrongfully terminated Plaintiff’s employment, for the reasons that Plaintiff engaged in protected activities, including taking medical leave, filing a worker's compensation claim, protesting conditions of employment, protesting illegal orders, and protesting illegal acts such as the falsification of official government reports.

The causes of action are:

1. UNLAWFUL RETALIATION: GOV. CODE §12653;

2. UNLAWFUL RETALIATION: GOV. CODE §12940(H) (FEHA);

3. HOSTILE WORK ENVIRONMENT (GOV. CODE §12940(J));

4. DISABILITY DISCRIMINATION (GOV. CODE §12900, ET AL.);

5. FAILURE TO ACCOMMODATE DISABILITY (GOV. CODE 1112940(M));

6. NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS;

7. INTENTIONAL VIOLATIONS OF GOV. CODE §12653.

MP Positions

Moving party requests an order sustaining the demurrer to the First Amended Complaint, and granting the motion to strike punitive damages, on grounds including the following:

· Plaintiff Calderon agreed to amend the First Amended Complaint, in a meet-and-confer process, but did not as of the time of filing the demurrer and motion.

· The Los Angeles County Civil Service Commission ruled that Plaintiff’s employment discharge was proper.

· Plaintiff failed to timely file a FEHA claim. The discharge clearly occurred before December 31, 2019, which was within the period that Calderon had one year to file a claim with the DFEH. In early 2022 the Commission affirmed his discharge, which is now res judicata.

· Calderon’s failure to file a government claim bars his non-FEHA related claims, including IIED and Whistleblower Retaliation under Labor Code Section 1102.5.

· Calderon has failed to allege any facts demonstrating disability discrimination.

· Calderon fails to allege any facts demonstrating that he was subjected to a hostile work environment as a result of his disability status.

· Presumably Calderon alleges that he complained about his disability status – but he has failed to set forth any supporting facts. Second, Calderon has failed to allege facts showing causation – that he was subjected to retaliation “because of” his disability status.

· Calderon has failed to state a claim under Section 1102.5. His complaints about “inked” deputies are not factually supported, and were not the cause of discharge, in light of the Civil Service decision.

· Plaintiff failed to sufficiently allege failure to accommodate. All of Calderon’s claims are non-specific and (apparently) intentionally vague. He claims that he lifted more than his weight restrictions after the September 2014 “accident.” First Amended Complaint 12:15. However, he also suggests that he did not alert the Department to his physical condition.

· Plaintiff failed to allege Intentional Infliction of Emotional Distress. Severe emotional distress requires substantial misconduct by a defendant.

· Emotional distress from wrongful employment termination is addressed through Workers Compensation. Pichon v. Pacific Gas & Electric, 212 Cal.App.3d 488, 495-96 (1999).

· Regarding the Bane Act, Calderon failed to allege that the County has engaged in any intimidation, threat or interference with a Constitutional right. He addresses the “illegal” conduct of gangs at his workplace but failed to allege any interference with his work.

· Calderon’s Ralph Act claim suffers from the same deficiencies of his claim under the Bane Act.

· Plaintiff cannot obtain punitive damages from co-Defendant County of Los Angeles. Government Code Section 818. Calderon failed to set forth ultimate facts demonstrating entitlement to punitive damages against any individual defendant.

Tentative Ruling

The demurrer to the First Amended Complaint, and motion to strike, are sustained with leave to amend, based upon all of their pages.

The Second Amended Complaint, received on 8/1/22, pursuant to the parties’ meeting and conferring, is deemed to be served and filed this date.

Leave to amend must be allowed where there is a reasonable possibility of successfully stating a cause of action. Schulz v. Neovi Data Corp. (2007) 152 Cal. App. 4th 86, 92.