Judge: Malcolm Mackey, Case: 20STCV35412, Date: 2023-01-19 Tentative Ruling
Case Number: 20STCV35412 Hearing Date: January 19, 2023 Dept: 55
CALDERON
v. COUNTY OF LOS ANGELES 20STCV35412
Hearing Date: 1/19/23,
Dept. 55
#11: DEMURRER TO THE SECOND AMENDED COMPLAINT; MOTION TO STRIKE PORTIONS OF THE SECOND AMENDED
COMPLAINT.
Notice: Okay
Opposition.
MP:
Defendant COUNTY OF LOS ANGELES.
RP:
Plaintiff
Summary
On 9/14/20, Plaintiff OSCAR CALDERON, filed a Complaint.
On 3/4/21, Plaintiff filed a First Amended
Complaint.
On 10/31/22, Plaintiff, a former Deputy Sheriff, filed
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 § 12940(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 Second Amended Complaint, and granting the motion to strike punitive
damages, on grounds including the following:
·
The opposition was filed very late, and
prevented sufficient time to write the reply.
·
The Los Angeles County Civil Service
Commission ruled that Plaintiff’s employment discharge was proper. The
Commission’s Hearing Officer issued his recommendation affirming Calderon’s
discharge on about August 26, 2020. The full Commission reviewed the Hearing
Officer’s Report and adopted the Hearing Officer’s Report and all findings of that
Report on about January 27, 2022. RJN Exh. 2.
·
In Castillo v. City of Los Angeles, 92
Cal.App.4th 477 (2001), the court determined that issue preclusion prevents a
plaintiff from claiming a FEHA violation when a civil service commission has already
decided the issue.
·
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.
·
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 admits
that he did not file a government claim under Government Code Section 911.2.
SAC 8:17-21.
·
Calderon failed to indicate any disability
discrimination whatsoever in his DFEH Complaint. Therefore he is barred from
asserting this.
·
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. Calderon has failed to allege facts showing causation – that
he was subjected to retaliation “because of” his disability status.
·
All of Calderon’s claims are vague and
apparently relate to employment actions, meaning that they are not actionable
as harassment under the FEHA.
·
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 vague.
·
Calderon cannot state a claim for
retaliation. First, he has failed to set forth any facts demonstrating that he
engaged in “protected conduct.” Second, Calderon has failed to allege facts showing
causation – that he was subjected to retaliation “because of” his disability
status.
·
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).
·
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.
RP Positions
Opposing party advocates overruling and denying, for
reasons including the following:
·
Statute of Limitations: There was equitable tolling as shown by
judicial notice of Plaintiffs administrative efforts and steps of informing the
COLA and going through the procedures to exhaust his administrative claims.
·
Intentional Infliction of Emotional
Distress: Plaintiffs
specifically allege he was being discriminated and singled out by the
"inked officers" and raised such issues to his management officers.
Tentative
Ruling
The demurrer to the Second Amended Complaint, and motion
to strike, are sustained and granted, without leave to amend, based upon all of
their pages.
The opposition was filed late, and deprived moving
party of time to draft a full reply. “
‘A trial court has broad discretion under rule 3.1300(d) of the California
Rules of Court to refuse to consider papers served and filed beyond the
deadline without a prior court order finding good cause for late submission.’ ” Mackey v. Bd. of Trustees of California
State Univ. (2019) 31 Cal. App. 5th 640, 657. See also Samaniego v. Empire Today LLC (2012)
205 Cal.App.4th 1138, 1146 (A court had discretion to not consider
late-filed papers where counsel provided no plausible explanation for the
tardiness).
The opposition only addressed the Statute of
Limitations and Intentional Infliction of Emotional Distress, but not the
several other issues raised in the demurrer and motion. Complete silence in an opposition to a
motion, as to an issue, results in a waiver
the right to argue the matter in trial court and on appeal. Assad v. Southern Pacific Transportation
Co. (1996) 42 Cal.App.4th 1609, 1615.
Ordinarily, appellate courts will not consider arguments, authority, and
facts that were not presented in the trial court, and those are deemed to be
waived. Bank of America, N.A. v.
Roberts (2013) 217 Cal. App. 4th 1386, 1398-99; In re Marriage of Falcone and Fyke (2008) 164 Cal.App.4th 814, 826; DiCola v. White Bros. Performance
Products, Inc. (2008) 158
Cal.App.4th 666, 676; Whiteley v.
Philip Morris, Inc. (2004) 117 Cal. App. 4th 635, 688.
The Los Angeles civil service administrative process, resulting
in a final finding of good-faith employment termination, is issue preclusion as
to FEHA claims that may not be relitigated.
See Castillo v. City of Los Angeles (2001) 92 Cal.App.4th
477, 486. Under the doctrine of
exhaustion of judicial remedies, where an administrative decision has been
issued of a sufficiently judicial character, complaining parties must exhaust
any available judicial proceedings for reversal (e.g., petition for writ of
mandate), in order to avoid a preclusive effect of collateral estoppel or res
judicata. Y.K.A. Industries, Inc. v.
Redevelopment Agency of City of San Jose (2009) 174 Cal. App. 4th 339, 355.
Finally, a “court may determine in the first instance,
whether the defendant's conduct may reasonably be regarded as so extreme and
outrageous as to permit recovery.” Trerice v. Blue Cross of California
(1989) 209 Cal. App. 3d 878, 883. See
also Garamendi v. Golden Eagle
Ins. Co. (2005)128 Cal. App. 4th 452, 480 (“evidence demonstrated little
more than that he had been told to keep quiet about his discoveries of fraud.
This type of personnel activity is insufficient….”); Janken v.
GM Hughes Electronics (1996) 46 Cal.App.4th 55, 80 (“"Managing
personnel is not outrageous conduct…..").
See also Shoemaker v.
Myers (1990) 52 Cal.3d 1, 25 (for determining applicability of
Workers’ Compensation preemption, discipline and criticism, that are independent
of a “violation of an express statute or violation of fundamental public
policy,” are not outrageous conduct); Light
v. California Dep't of Parks & Recreation (2017) 14 Cal. App. 5th 75,
102 (“conduct was not extreme,
outrageous, or beyond the bounds of what we tolerate as a civilized community….
While a reasonable trier of fact could conclude Dolinar … contributed to the
Department's violation of FEHA's anti-retaliation provision, her actions are
common—though ultimately misguided—supervisory actions.”).