Judge: Mark C. Kim, Case: 21LBCV00555, Date: 2022-12-22 Tentative Ruling

Case Number: 21LBCV00555    Hearing Date: December 22, 2022    Dept: S27

1.     Background Facts

Plaintiff, Michael Colbert filed this action against Defendants, City of Long Beach, Michael Erdeiji, Joel Cook, and William Jarman for discrimination and related claims.  Plaintiff alleges he was employed by the City in its police department, of which the individual defendants were officers, and alleges he was the victim of ongoing and systemic racial discrimination (Plaintiff is African American). 

 

On 7/12/22, the Court heard Defendants’ demurrer to Plaintiff’s First Amended Complaint, which he filed on 12/28/21.  The FAC included causes of action for:

·         Wrongful Demotion in Violation of FEHA;

·         Discrimination on the Basis of Race – FEHA;

·         Harassment – FEHA;

·         Retaliation – FEHA;

·         Failure to Investigate – FEHA;

·         Failure to Prevent – FEHA.

 

The Court issued a detailed ruling sustaining the demurrer with leave to amend.  On 8/01/22, Plaintiff filed his operative Second Amended Complaint.  The SAC includes causes of action for harassment, failure to investigate harassment, and failure to prevent harassment, all of which sound under FEHA.  The SAC is pled against the City, Erdelji, and Jarman; the remaining defendants from the FAC are not named in the SAC.  Notably, on 11/22/22, Plaintiff dismissed Jarman from the action, leaving only the City and Erdelji as defendants.  Erdelji filed an answer to the SAC on 9/19/22.

 

2.     Initial Note

Defendant, William Jarman has a demurrer scheduled on today’s calendar.  Because Plaintiff dismissed the action against Jarman, the Court is taking his demurrer off calendar as moot. 

 

3.     Motion to Strike Portions of SAC

  1. Parties’ Positions

The City moves to strike ¶¶24-133 of Plaintiff’s SAC.  These paragraphs detail Defendants’ alleged conduct occurring between 1990 and late 2018, and Defendants contend all of the actions detailed in those paragraphs are barred by the statute of limitations and are therefore irrelevant to the action. 

 

Plaintiff opposes the motion.  He argues a motion to strike is an improper vehicle to attack the allegations.  He argues the statute of limitations is three years, not one year.  He argues the chronology is relevant to the action because Defendants’ actions are subject to the continuing violations doctrine. 

The City, in reply, contends a motion to strike is proper, and the SOL is one year.  It contends the continuing violations doctrine does not apply because the actions are not similar in kind and also because the actions achieved a degree of permanence prior to 2019. 

 

  1. Request for Judicial Notice

Defendant seeks judicial notice of Plaintiff’s SAC, as well as records produced by the DFEH in response to a public records act request related to Plaintiff’s DFEH complaint, which includes Plaintiff’s DFEH complaint and various responsive documents.  The RJN is granted.

 

  1. Meet and Confer

The City’s attorney declares she made numerous attempts to meet and confer, and Plaintiff did not respond.  The Court believes the issues relating to this motion can be resolved by way of a genuine meet and confer.  Failing to respond to meet and confer attempts is not good faith, and the Court will not permit this conduct.  Plaintiff must actively participate in the meet and confer process.

 

The Court is continuing the hearing on this motion for one month, providing guidance, and ordering the parties to meet and confer in good faith in an attempt to limit or eliminate the issues for adjudication.    

 

  1. Guidance

i.              Statute of Limitations

The City shows, and Plaintiff agrees, that the SOL for a FEHA claim prior to 1/01/20 was one year.  The parties disagree concerning whether the 1/01/20 change of the SOL from one year to three years is retroactive or not.  The City cites Civil Code §3, which makes clear that no part of the Civil Code is retroactive unless expressly so declared. 

Plaintiff cites Gov Code §12960(f)(2), which provides, “The tolling provided under this subdivision shall apply retroactively.” 

 

There are problems with both parties’ arguments.  The problem with the City’s argument is that the SOL at issue is found in the Government Code, not the Civil Code, so the portion of the Civil Code stating that the Civil Code is not applied retroactively does not clearly apply.  The problem with Plaintiff’s argument is that the “tolling” referred to in §12960 relates to specified tolling provisions in the section, none of which are the updated statute of limitations.

 

The parties must meet and confer in good faith to determine whether the one-year or three-year statute of limitations applies in this case.  The Court will not do the parties’ research for them in this regard.

 

ii.             Propriety of a Motion to Strike

Plaintiff argues a motion to strike is not properly made in this case because none of the allegations at issue are irrelevant, false, improper, or not drawn in conformity with the laws of this state.  The Court finds any allegations that are objectively out of the statute of limitations would be irrelevant, so Defendants’ motion is proper.

 

iii.            Continuing Violations Doctrine

Plaintiff argues the issue of whether the continuing violations doctrine applies is an issue of fact that can only be decided by the trier of fact.  Plaintiff concedes, however, that this is only true if the pleading at issue can only support one reasonable conclusion, which is that the acts at issue are not subject to the doctrine.  See Broberg v. Guardian Life Ins. Co. of America (2009) 171 Cal.App.4th 912, 921.

The Court, in connection with Defendants’ demurrer to the FAC, provided a detailed analysis of why various allegations in the FAC clearly did not implicate the doctrine.  By way of example, the Court ruled that a demotion Plaintiff alleged occurred in 2019 did not sufficiently relate to the conduct complained of in 2019 to support application of the doctrine to the demotion.  The Court also found allegations concerning retaliation that occurred in 2008 were not sufficiently similar to the harassment that occurred in 2009 to implicate the doctrine. 

 

The Court asks Counsel, during further meet and confer, to go through the SAC paragraph by paragraph and determine which allegations relate to the 2019 conduct in a manner sufficient to render the allegations relevant.  They must specifically discuss the test, which the Court detailed in its 7/12/22 ruling.  They must discuss whether the allegations are sufficiently similar in kind, occur with sufficient frequency, and have not acquired a degree of permanence. 

 

  1. Conclusion

The hearing on the City’s motion to strike is continued for one month, to Tuesday, 1/24/23.  Counsel must meet and confer in good faith within the next week.  If Counsel are unable to do so, especially because of the upcoming holidays, then they must agree on an alternative date for the hearing and contact the courtroom to change the hearing date. 

 

At least one week prior to the continued hearing date, each party must file a declaration detailing the meet and confer efforts that were undertaken in connection with this ruling.  Additionally, each party must file a brief providing analysis of any issue that has not been resolved.  While tedious, the parties must be prepared to brief the allegations of the SAC either paragraph by paragraph or by groupings of paragraphs.  The City cannot simply argue that ALL of the conduct is unrelated, without discussion of the different allegations at different times, and Plaintiff cannot simply argue that ALL of the conduct IS related.  The Court will not go through the SAC on its own, without the parties’ arguments, in an attempt to determine which allegations potentially implicate the continuing violations doctrine and which do not. 

 

Defendant is ordered to give notice. 

 

Parties who intend to submit on this tentative must send an email to the court at gdcdepts27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.  If the parties do not submit on the tentative, they should arrange to appear remotely.