Judge: Mark H. Epstein, Case: 24SMCV02853, Date: 2025-01-22 Tentative Ruling

Case Number: 24SMCV02853    Hearing Date: January 22, 2025    Dept: I

The court has before it defendant’s demurrer.  The seventh and eleventh causes of action are DISMISSED.  The demurrers to the second and sixth causes of action are SUSTAINED WITHOUT LEAVE TO AMEND.  The demurrers to the remaining causes of action are OVERRULED. 

Plaintiffs are or were three firefighters with the City of Santa Monica.  They allege a number of discrimination-related torts as against the City.  All three plaintiffs—Nolan (who was a lateral hire), Franco, and Corrujedo—were in the 2022 academy class.  In June 2022, defendant announced that there would be an $8000 “hero bonus” but plaintiffs’ superiors told them that they did not deserve it and that the academy class should donate the money to the Fire Department (SMFD) for other purposes.  Plaintiffs did not believe that this was normal and they decided to keep the money.  Plaintiffs allege that at about that time, the inappropriate conduct began. 

Nolan alleges that in June 2022 he suffered a foot injury while on duty and he was on medical leave until November 2022.  Nolan claims he heard that his superior had suggested he go back to the department from whence he came because he would not make it at the SMFD.  He also alleges that the SMFD decided he would need tailored training due to the absence but he was not assigned an instructor.  Nolan claims that he tried to do some training off-duty, but the SMFD refused his request even though the request was pretty routine and routinely granted in other instances.  Nolan states that he had to submit to a three-month evaluation in January 2023, even though he had not been on the job for three months, and that the review was that he needed more training, although he was denied such training.  At the six-month review in March 2023, he claims the two supervisors gave him positive reviews.  But when the exam took place, only one captain was present even though there are typically three superiors.  Further, Nolan says he was graded by another person not qualified to grade him.  Nolan failed the exam and when he requested an explanation, he was told that he should feel lucky to be at the SMFD and that the Chief was fed up with Nolan’s requests for accommodations.  Nolan eventually passed the six-month exam, but he was mocked on Instagram nonetheless for the earlier failure.  He claims that in May 2023, while there was an internal investigation ongoing, a captain threatened him that if Nolan said anything negative about that captain, he would be killed and dismembered.  That threat was reiterated.  Nolan claims that he eventually learned that his captain had backdated and falsified the evaluations.  Nolan alleges that by June 2023, Nolan reached out to the Fire Marshall, who set up a meeting with the Chief.  Nolan was terminated after the meeting.

Franco alleges he was the victim of race-based discrimination at the SMFD.  He was allegedly told by a superior that rookies like him were getting “darker and darker” every year.  Franco reported that to HR, but nothing was done.  Instead, Franco’s report was supposedly disclosed to others and the harassment increased.  Franco says, for example, there was tampering with his equipment and he was called names and referred to as part of the “Mexican Mafia.”  Franco claims that he has endured mental suffering as a result.

Corrujedo claims to have suffered race-based discrimination as well.  He, too, says he was referred to as part of the “Mexican Mafia.”  His superior criticized his manner of speaking and questioned his capabilities as a person and a father.  When Corrujedo asked how he could improve, he was screamed at by his superiors.  His requests to see evaluation forms were allegedly ignored and his captain would not meet with him after shift to discuss his performance.  He says he reached out to a relative—also an SMFD fire captain—who spoke to Corrujedo’s supervisor, but nothing changed.  Corrujedo alleges that in October 2022 he was assaulted by another fire fighter, but the attack was not reported to HR by any of the witnesses or superiors.  When Corrujedo reported it, everyone denied being present, allegedly to protect the assailant.  Although an investigation was opened, it went nowhere.  When Corrujedo took a day off to be with his son, he was criticized in that his name was taken off of his locker, which was trashed.  He, too, states he has endured mental suffering as a result and he resigned in November 2022.

Preliminarily, the request for judicial notice of Nolan’s claim filing letters is GRANTED.  In response to defendants’ demurrer, plaintiffs agree that the seventh and eleventh causes of action cannot stand and plaintiffs stated that they will dismiss those causes of action.  The court accepts plaintiffs’ decision and those causes of action are DISMISSED.

Defendants contend that the causes of action for emotional distress and battery (the twelfth, thirteenth, seventeenth, and eighteenth causes of action) fail due to governmental immunity.  Defendants are correct that they are immune from common law claims.  As such, they cannot be sued directly.  However, the governmental entities can be held liable vicariously for torts committed by an employee.  That vicarious liability attaches if the underlying conduct would be viewed as a tort were it committed by a private party.  (Lueter v. State of California (2002) 94 Cal.App.4th 1285.)  All of these causes of action seek precisely that kind of vicarious liability, and as such, the demurrer fails to the extent it is based on immunity.

Defendants also suggest that Nolan failed to present his claims for whistleblower retaliation pursuant to Labor Code section 1102.5.  Defendants are correct that presentation of the claim is a condition precedent to pursuing a tort action, and the failure to present a claim bars the action.  (Phillips v. Desert Hospital Dist. (1989) 179 Cal.App.3d 807.)  Although Nolan alleges compliance, his allegations cannot be taken at face value where records of which the court may take judicial notice tell a different tale.  Here, Nolan was obligated to present his claim within 6 months.  He was terminated in June 2023, which only gave him until December 2023, to file the claim.  However, his claim was filed on February 8, 2024—out of time.  The claim was therefore untimely and properly rejected.  Nolan had the right to be told that his remedy was to seek leave to file a late claim, and he was so informed.  However, the right is not automatic.  Nolan was required to seek leave to file the untimely claim.  There is no indication that he made such a request.  As such, the claim is barred and the demurrer to the sixth cause of action is SUSTAINED.  Because the court does not see how Nolan can plead around this, LEAVE TO AMEND IS DENIED.

Defendants also assert that there is Worker’s Compensation exclusivity that bars Nolan’s disability cause of action as well as the other plaintiffs’ emotional distress causes of action.  Worker’s Compensation is a system in which an employee injured on the job can seek benefits without the need to prove negligence by the employer.  In return, the employee cannot sue in tort.  Thus, if an injury is covered by the Worker’s Compensation statute, that is the exclusive remedy absent some statutory exception.  Injuries covered by Worker’s Compensation include both physical and psychological injuries so long as they arise out of and within the course and scope of employment.  (Shirvanyan v. Los Angeles Community College Dist. (2020) 59 Cal.App.5th 82.)  Nolan’s Labor Code section 132a is a cause of action for discrimination but it is not a general civil cause of action; it arises by statute and this court lacks jurisdiction to hear the issue. (Dutra v. Mercy Medical Center for Mt. Shasta (2012) 209 Cal.App.4th 750.)  However, while the 132a claim is barred, the same is not true of the other causes of action for discrimination.  Fair Employee and Housing Act causes of action and common law wrongful discharge causes of action are not precluded and Worker’s Compensation is not the exclusive remedy for those injuries.  (City of Moorpark v. Superior Court (1998) 18 Cal.4th 1143.)  The demurrer is therefore OVERRULED as to those causes of action but SUSTAINED as to the 132a cause of action.  Because there is no way to plead around that problem, LEAVE TO AMEND IS DENIED as to the 132a cause of action..

Defendants argue that the same preclusion applies to the emotional distress causes of action.  The court, however, disagrees.  While most injuries—including those that result in emotional distress—are precluded, discrimination is not part of the employment bargain.  Thus, causes of action based on discrimination are not within the Worker’s Compensation exclusion.  (Fretland v. County of Humboldt (1999) 69 Cal.App.4th 1492.)  Nor is battery a part of the normal employment bargain; the same general logic applies.  The demurrers as to these causes of action are therefore OVERRULED.

Defendants also assert that Nolan’s claims for disability discrimination are not adequately pled.  The court has some sympathy for the position, especially given that the complaint itself seems to tie the bad acts to the decision not to donate the “hero bonus” to the SMFD, but ultimately the court believes that this is better tested on summary judgment than on the pleadings.  Essentially, Nolan’s theory is that he was on medical leave due to an injury, and that much of the ill-treatment he received was a result of his superiors holding the medical leave against him, even though he did recover fully.  In essence, the defense argues that there was no disability once Nolan returned to work, and therefore no disability discrimination is possible.  But Nolan alleges that he was told that his treatment was caused by the views of his superiors that he had inappropriately requested or been given accommodations while he was disabled.  Further, he alleges that he fell behind due to his disability and that when he sought accommodations that would allow him to catch up, those accommodations were denied.  The court believes that those allegations are enough.  One need not actually be disabled to state a cause of action for disability discrimination.  (Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34.)  It is enough if the employer discriminates against the employee due to a disability.  Here, the discrimination was allegedly because Nolan had been placed on medical leave due to the disability and that he was denied a reasonable accommodation to deal with the fact that he fell behind while on leave as a result.  That is enough. The same logic pertains to the harassment claim.  If Nolan was harassed because he took a medical leave, that is enough.  Of course, just because Nolan alleges it does not make it true.  It could well be that the discrimination and harassment he claims to have suffered was because he insisted on keeping the $8000 bonus.  But the court cannot adjudicate that here.  Accordingly, the demurrers to the third cause of action is OVERRULED.

Defendants contend that the racial discrimination causes of action pled by Franco and Corrujedo are not adequately alleged.  The court disagrees.  The allegations are sufficient to make out a theory that these two plaintiffs were called part of the “Mexican Mafia” and that Franco was told by a superior that recruits were getting “darker and darker.”  There are other allegations as well.  Whether that is sufficient to give rise to a toxic work environment is not something that can be decided against the plaintiffs at the pleading stage.  It is well enough pled to defeat the motion.  The demurrers to the eighth and fourteenth causes of action are OVERRULED.  And because the discrimination causes of action are adequately pled, so are the causes of action for failure to prevent the discrimination and harassment, so the demurrers to the fourth, tenth, and sixteenth causes of action are also OVERRULED.

Finally, there is the negligent hiring, supervision, and retention causes of action.  The argument is that the facts are not adequately pled and that there is no indication that defendant owed Nolan a duty of care.  As to that latter point, defendant relies on Mendoza v. City of Los Angeles (1998) 66 Cal.App.4th 1333.  But that case is off point.  There, an off-duty police officer shot and killed a child’s mother during a domestic dispute.  The child sued but no duty was found.  That is just not the situation here.  Nor does the court find that more particularity is needed.  There is enough for the pleading stage—even against a governmental entity.  The demurrer to this cause of action is OVERRULED.

Because the demurrer has not resulted in a situation where there is leave to amend, defendants have 30 days to answer.