Judge: Mel Red Recana, Case: 23STCV13851, Date: 2024-09-13 Tentative Ruling
Case Number: 23STCV13851 Hearing Date: September 13, 2024 Dept: 45
Hearing
date: September
11, 2024
Moving
Party: Defendant
Los Angeles Unified School District
Responding
Party: Plaintiff
Pearl Howell
Demurrer
to First Amended Complaint
·
1st
Cause of Action: Discrimination based on Disability (Violation of FEHA)
·
2nd
Cause of Action: Failure to Engage in Interactive Process
·
3rd
Cause of Action: Retaliation for Exercising Disability Rights
The Court
considered the moving papers, opposition, and reply.
The motion is sustained in part with leave
to amend as to the 1st and 3rd cause of action and
overruled as to the 2nd cause of action.
Background
Plaintiff
Pearl Howell (“Plaintiff”) filed this action on June 15, 2023, against her
former employer, Defendants Los Angeles Unified School District (“Defendant”), Board
of Education of the Los Angeles School District, and DOES 1-20, inclusive
(collectively “Defendants”) alleging causes of action for (1) Disability
Discrimination (Gov. Code §12940, et seq.); (2) Failure to Engage in the
Interactive Process; and (3) Retaliation for Exercising Disability Rights (Cal.
Gov. Code § 12940 et seq.). This dispute arises out of Defendant’s alleged forced
resignation following Plaintiff’s return from medical leave in 2020. (FAC. ¶ ¶
1-12.) Plaintiff alleges that Defendant’s management, without conducting an
Interactive Process Meeting, informed her that they could not accommodate her
disability, and that she should ask her doctor to lift her work restrictions. (FAC.
¶ 9.) Around 2017, due to dangerous conditions at Burton Elementary, where
Plaintiff worked as a special education teacher, Plaintiff fell and suffered
serious back injuries. (FAC. ¶¶ 5, 8.) Plaintiff was placed on medical leave
until January 2020, and returned to work with medical restrictions that
included working only three days a week, and prohibited her from lifting more
than 10 pounds, bending, reaching, and sitting for more than 30 minutes. (FAC,
¶ 15.) Plaintiff seeks damages for the economic losses, physical and mental
injuries that Plaintiff suffered because of Defendant’s conduct. (FAC, ¶ 16.)
On
November 23, 2023, dismissal on the entire action was entered as to defendant
Board of Education of the Los Angeles Unified School District.
On
December 19, 2023, Defendant Los Angeles Unified School District filed a
declaration of demurring or moving party in support of automatic extension.
On
January 17, 2024, Plaintiff filed a First Amended Complaint (“FAC”) asserting
the same three causes of action against Defendant Los Angeles Unified School
District only.
On January 18,
2024, Defendant Los Angeles Unified School District (“Defendant”) filed the
instant Demurrer to the FAC, concurrently with a Request for Judicial Notice and
the Declaration of defense counsel.
On February 1,
2024, Defendant filed Re-Notice of the Demurrer to the FAC.
On April 9,
2024, Plaintiff stipulated to dismiss all DOE defendants.
On July 24,
2024, Plaintiff filed an opposition.
On July 31,
2024, Defendant filed a reply.
The motion
hearing initially scheduled for August 7, 2024, was continued to September 11, 2024,
and continued again, on the Court’s own motion to September 13, 2024.
Procedural Matters
Meet and Confer
Efforts
As an initial
matter, the Court notes that on review of the Declaration of Hannah Hoonaian, Defendant’s
meet-and-confer efforts were sufficient, as Code of Civil Procedure section
430.41, subdivision (a), and section 435.5, subdivision (a), require meeting
and conferring “in person or by telephone.” On December 15, 2023, Defense
counsel called Plaintiff Pearl Howell’s counsel and sent an email, to which
Plaintiff did not respond. (Declaration of Hoonanian, ¶ 3.) On December 19,
2023, Defendant LAUSD filed their attorney’s declaration in support of an
automatic extension of 30 days to file a demurrer on grounds that Plaintiff
failed to respond to their meet and confer efforts. (Id., ¶ 4.) Plaintiff’s responsive pleading was due on
January 18, 2024. On January 17, 2024, Plaintiff’s counsel failed to meet and
confer in good faith, thereby frustrating the purpose of the meet-and-confer
requirement, which is to determine whether the parties can reach an agreement
as to the issues raised in the demurrer.
Here, Defendant
has fulfilled the meet and confer requirements. (Declaration of Hoonanian ¶¶ 3-4.)
Request
for Judicial Notice
Taking judicial
notice of a document is not the same as accepting the truth of its contents or
accepting a particular interpretation of its meaning. (Fremont Indem. Co. v.
Fremont General Corp. (2007) 148 Cal.App.4th 97, 113-14.) That means that
“when judicial notice is taken of a document…the truthfulness and proper
interpretation of the document are disputable.” (Aquila, Inc. v. Sup. Ct.
(2007) 148 Cal.App.4th 556, 569.)
Defendant filed an unopposed request for judicial notice of the following
documents: (1) Defendant’s Request for Admissions, Set One, propounded on
Plaintiff on October 27, 2023, and Plaintiff’s Responses to Defendant’s Request
for Admission, Set One, propounded on Defendant on November 29, 2023, and (2) the
declaration of Hannah Hoonian, in support of Defendant's Demurrer. (Request for
Judicial Notice (“RJN”), p. 2, Exhibits 1-2; Evidence Code §§ 452(c), (d),
453.)
As to RJN Exhibits 1 and 2, these
materials reflect court records, which are properly subject to judicial notice
pursuant to Evidence Code § 452(d). The truth of allegations made in these
Court documents are not judicially noticeable. However, the fact that these
allegations are made, on the other hand, is judicially noticeable. Judicial
notice is therefore GRANTED as to the existence of these documents.
Legal
Standard
When considering
demurrers, courts read the allegations liberally and in context. (Taylor v.
City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216,
1228.) “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.” (SKF Farms v. Superior Court (1984)
153 Cal.App.3d 902, 905.) “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.)
Discussion
LAUSD’s Demurrer
Defendant asserts
that each cause of action is not sufficiently alleged and is uncertain. (CCP §§
430.10(e), (f).)
First
Cause of Action for Discrimination on the Basis of Disability (Cal. Gov. Code
§12940, et seq., the Fair Employment Housing Act(“FEHA”))
“FEHA prohibits several employment practices relating to [protected
characteristics]. First, it prohibits employers from refusing to hire,
discharging, or otherwise discriminating against employees because of their
[protected characteristics]. (Gov. Code, § 12940, subd. (a).) Second, it
prohibits employers from failing to make reasonable accommodations for the
known physical disabilities of employees. (Id., subd. (m).) Third, it
prohibits them from failing to engage in a timely and good faith interactive process
with employees to determine effective reasonable accommodations. (Id.,
subd. (n).) Fourth, it prohibits them from retaliating against employees for
opposing practices forbidden by FEHA. (Gov. Code, § 12940, subd. (h).) Separate
causes of action exist for each of these unlawful practices. [Citations.]” (Nealy
v. City of Santa Monica (2015) 234 Cal.App.4th 359, 371.)
Under FEHA, race, religious creed, color, national origin, ancestry,
physical disability, mental disability, reproductive health decision making,
medical condition, genetic information, marital status, sex, gender, gender
identity, gender expression, age, sexual orientation, or veteran or military
status of any person are considered protected characteristics. (Gov. Code, §
12940(a).)
The statutory
definitions regarding disability discrimination are summarized in the following
opinion excerpt:
Under the FEHA,
“physical disability” includes having a physiological disease, disorder, or
condition that, by affecting the neurological or musculoskeletal body systems,
special sense organs or skin, “limits” a “major life activity.” (§ 12926, subd.
(k)(1)(A), (B).) “Limits” is synonymous with making the achievement of a major
life activity “difficult.” (Id., subd. (k)(1)(B)(ii).) “Major life activity” is
construed broadly and includes physical, mental, and social activities, and
working. (Id., subd. (k)(1)(B)(iii).) “ ‘[W]orking’ is a major life activity,
regardless of whether the actual or perceived working limitation implicates a
particular employment or a class or broad range of employments.” (§ 12926.1,
subd. (c).) Whether a major life activity is limited “shall be
determined without regard to mitigating measures such as medications, assistive
devices, prosthetics, or reasonable accommodations, unless the mitigating
measure itself limits a major life activity.” (§ 12926, subd.
(k)(1)(B)(i).)
(Arteaga v. Brink's, Inc. (2008)
163 Cal.App.4th 327, 345.)
“[T]he elements
of a claim for employment discrimination in violation of section 12940,
subdivision (a), are (1) the employee's membership in a classification
protected by the statute; (2) discriminatory animus on the part of the employer
toward members of that classification; (3) an action by the employer adverse to
the employee's interests; (4) a causal link between the discriminatory animus
and the adverse action; (5) damage to the employee; and (6) a causal link
between the adverse action and the damage.” (Mamou v. Trendwest Resorts,
Inc. (2008) 165 Cal.App.4th 686, 713.)
Defendant demurs
to this cause of action on the basis that Plaintiff fails to state facts
sufficient to constitute each element of this cause of action against Defendant.
Particularly, Defendant contends that Plaintiff (1) fails to allege sufficient
facts to meet the statutory definition of a qualified individual with a covered
disability because her restrictions made it impossible for her to complete her
essential job functions, even if accommodations were provided (RJN RFA Nos. 1,
11); (2) fails to plead an adverse employment action by Defendant by failing to
plead constructive discharge to support her claim that Defendant’s failure to
accommodate her disability “forced her to resign”, and (3) fails to
sufficiently allege Defendant’s disability-based animus because Plaintiff’s
termination was statutorily mandated by Education Code 44978, as she had
exhausted her medical leave and Plaintiff was unable to be returned to a
position to which she was credentialed or qualified. (Motion, pp. 8-11.) Education
Code 44978 provides that:
“When a
certificated employee has exhausted all available sick leave, including
accumulated sick leave, and continues to be absent on account of illness or
accident for a period beyond the five-month period provided pursuant to Section
44977, and the employee is not medically able to resume the duties of his or
her position, the employee shall, if not placed in another position, be placed
on a reemployment list for a period of 24 months if the employee is on
probationary status, or for a period of 39 months if the employee is on
permanent status. When the employee is medically able, during the 24- or
39-month period, the certificated employee shall be returned to employment in a
position for which he or she is credentialed and qualified. The 24-month or 39-month
period shall commence at the expiration of the five-month period provided
pursuant to Section 44977.”
(Cal. Educ. Code § 44978.1)
Here, Plaintiff
incorporates introductory paragraphs 1 through 12 and alleges that Defendant
discriminated against Plaintiff by refusing to accommodate Plaintiff’s working restrictions.
Plaintiff also alleges that Defendant retaliated against Plaintiff because she
exercised her disability rights, however the FAC is devoid of facts of how
those rights were exercised. Plaintiff’s allegations, as articulated in the FAC,
fail to allege facts of discriminatory animus on the part of her employer
toward Plaintiff on account of her physical disability and show no causal link
between any discriminatory animus and Plaintiff’s adverse outcome.
The Court
therefore SUSTAINS Defendant Los Angeles Unified School District’s demurrer to
the first cause of action, WITH LEAVE AMEND.
Second
Cause of Action for Failure to Engage in the Interactive Process
Defendant
contends that the second cause of action is subject to demurrer because
Plaintiff has failed to allege facts to each element for failure to engage in
the interactive process claim.
The elements of
a claim for failure to engage in the interactive process include the following:
“1. That [Defendant] was [an employer]; 2. That [Plaintiff] [was an employee of
Defendant] …; 3. That [Plaintiff] had a [limiting condition] that was known to
[Defendant]; 4. That [Plaintiff] requested that [Defendant] make reasonable
accommodation for [his] [condition] so that [he] would be able to perform the
essential job requirements; 5. That [Plaintiff] was willing to participate in
an interactive process to determine whether reasonable accommodation could be
made so that [he] would be able to perform the essential job requirements; 6.
That [Defendant] failed to participate in a timely good faith interactive
process with [Plaintiff] to determine whether reasonable accommodation could be
made; 7. That [Plaintiff] was harmed; and 8. That [Defendant]’s failure to
engage in a good-faith interactive process was a substantial factor in causing
[Plaintiff]’s harm.” (CACI jury instruction 2546.)
“‘[I]n order to
establish a prima facie case of retaliation under FEHA, a plaintiff must
show (1) he or she engaged in a ‘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.’ [Citation.]
The requisite ‘causal link’ may be shown by the temporal relationship between
the protected activity and the adverse employment action. [Citations.]” (Light
v. Department of Parks & Recreation (2017) 14 Cal.App.5th 75, 90–91.)
Plaintiff
incorporates introductory paragraphs 1 through 17, and paragraphs 18 through 23
of the First Cause of Action and alleges that Defendant failed to engage in the
interactive process because Defendant allegedly ignored Plaintiff’s request for
accommodation, by informing Plaintiff they could not accommodate her physical disability
and recommending she ask her doctor to lift the work restrictions. (FAC, ¶¶
8-11.) Plaintiff allegedly presented her qualifications, asking for Defendant’s
consideration for an administrative position, and “Plaintiff was emphatically
told no”. (FAC ¶ 12.) Upon Plaintiff’s insistence, Defendants held an
Interactive Process Meeting and informed Plaintiff that she needed to find
someone to job share with and made no diligent effort to provide Plaintiff with
information about Job Share program participants or alternate roles. (FAC, ¶
14.)
Defendant argues
that Plaintiff’s medical restrictions made it impossible for her to perform the
essential functions of a Special Education Teacher, which has physical demands.
(Motion, p. 9; RJN RFA No. 1.)
In Opposition,
Plaintiff argues that she has always benefited from the assistance of a
classroom aide who performed most of the non-essential duties of her teaching
jobs, and the appropriate standard for a demurrer is not whether Plaintiff was
able to complete essential job functions. (Opposition, p. 5.)
Under the
authority above, to state a claim under FEHA a Plaintiff must identify a
protected characteristic (or a protected activity for a claim of FEHA
retaliation). Moreover, FEHA are statutory claims and must be plead with
specificity. (Lopez, supra, 40 Cal.3d at p.795.) The FAC fails to do so.
Here, Plaintiff
alleges that she was employed by Defendant as a Special Education Teacher since
1996 and suffered a physical disability arising from work-related fall, which Defendant
knew of because she was placed on an approximate 27-month medical leave. (FAC, ¶¶
6-8.) Plaintiff indicates that when she tried returning to work in January 2020,
she requested reasonable accommodation based on her medical restrictions, and
Defendant failed to initially hold a hearing to determine how to accommodate
her disability. (FAC, ¶ 9.) Plaintiff was willing to participate in the process
because she returned to her doctor to have the restrictions removed, and the
doctor denied the request, extending her medical leave until March 2020. (FAC,
¶ 10.) Plaintiff again presented her medical restrictions and sought accommodations,
which Defendant’s management allegedly denied. (FAC, ¶ 11.) Plaintiff alleges
harm in the form of economic losses, incurred attorneys’ fees, and physical and
mental injuries. (FAC, ¶¶ 27-28.) Plaintiff also to allege that Defendant’s failure
to engage in a good-faith interactive process was a substantial factor in
causing Plaintiff’s harm by naming the Interactive Process Meeting a “sham” in
which Defendants failed to provide specific Job Share program details to enable
her to find the appropriate accommodation.
The Court
therefore OVERRULES Defendant Los Angeles Unified School District’s demurrer to
the second cause of action.
Third Cause of
Action: Retaliation for Exercising Disability Rights (Cal. Gov. Code § 12940 et
seq.).
Defendant
contends that the third cause of action is subject to demurrer because
Plaintiff has failed to allege facts to state a claim for unlawful retaliation
based on disability.
To establish a
prima facie case of FEHA retaliation, a plaintiff must show (1) they were
engaged in protected activity, (2) they were qualified for their position or
were performing competently in the position they held, (3) they suffered an
adverse employment action, and (4) some other circumstance that suggests a
retaliatory motive connecting the protected activity with the adverse action. (Guz,
supra, at 355.) Under Cal. Gov. Code § 12940, protected activity
includes a request for a reasonable accommodation, but there must have been for
a bona-fide “reasonable accommodation for the known physical or mental
disability of an applicant or employee.” (See Cal. Gov. Code § 12940(m)(1).)
Here, the FAC
fails to specifically identify what protected activity Plaintiff took, and
simply states that Plaintiff was retaliated against “in part because she
exercised her disability rights under FEHA.” (FAC, ¶ 32.) However, Plaintiff fails to state when her
complaint regarding disability discrimination was made, and to whom the
complaint was made. Plaintiff appropriately pleads that she suffered an adverse
action through termination, incurring lost earning, and substantial mental and
emotional distress. (FAC, ¶ 33.)
The Court
therefore SUSTAINS Defendant Los Angeles Unified School District’s demurrer to
the third cause of action, WITH LEAVE AMEND.
It
is so ordered.
Dated: September 13, 2024
_______________________
MEL RED RECANA
Judge of the
Superior Court