Judge: Mel Red Recana, Case: 23STCV22483, Date: 2024-02-20 Tentative Ruling
Case Number: 23STCV22483 Hearing Date: March 18, 2024 Dept: 45
Hearing
date: March 18, 2024
Moving
Party: Defendant City of La Habra
Heights
Responding
Party: Plaintiff Michael Sokoloff
Motion
to Strike (not anti-SLAPP) without Demurrer
The Court
considered the moving papers, opposition, and reply.
The
motion is GRANTED without Leave to Amend.
Background
On
September 18, 2023, Plaintiff Michael Sokoloff (“Plaintiff”) filed the
operative Complaint against Defendants City of La Habra Heights; Fabiola
Huerta; and DOES 1-100 (“Defendants”), inclusive for: (1) Labor Code § 1102.5 et
seq; (2) Intentional Interference With Contractual Relations; and (3)
Intentional Infliction of Emotional Distress.
On
October 19, 2023, Defendant City of La Habra Heights (the “City”) filed this
instant Motion to Strike (not anti-SLAPP) without Demurrer. On February 5,
2024, Plaintiff filed his opposition. On February 9, 2024, the City filed its
reply.
On
February 20, 2024, this Court continued the matter to allow the parties to
properly meet and confer on the issues presented in this present motion. The City
was ordered to file a declaration that complies with the requirements of Code
of Civil Procedure Section 435.5, if the parties were unable to resolve any
issues.
On
March 6, 2024, the City filed a meet and confer declaration in compliance with Code
of Civil Procedure Section 435.5 as the Court ordered. The substance of the
meet and confer declaration is discussed in more depth below.
Legal
Standard
“Any party,
within the time allowed to respond to a pleading may serve and file a notice of
motion to strike the whole or any part thereof, but this time limitation shall
not apply to motions specified in subdivision (e).” Code Civ. Proc., § 435,
subd. (b)(1).)
“The court may,
upon a motion made pursuant to Section 435, or at any time in its discretion,
and upon terms it deems proper: (a) Strike out any irrelevant, false, or
improper matter inserted in any pleading.” (Code Civ. Proc., § 436, subd. (a).)
Request
for Judicial Notice
The City’s
Request for Judicial Notice
In support of its motion, the City requests judicial notice of (1)
Plaintiff’s Complaint attached to the declaration of Alyssa Acuña as Exhibit A;
(2) Plaintiff’s Government Claim dated July 31, 2023 attached to the declaration
of Alyssa Acuña as Exhibit B; and (3) the City’s letter to Plaintiff’s attorney
Brandon Ortiz dated September 8, 2023 attached to the declaration of Alyssa Acuña
as Exhibit C.
The City’s request for judicial notice is GRANTED pursuant to Evidence
Code Sections 452, subdivision (c), (d), (h), and 453.
Plaintiff’s
Request for Judicial Notice
In support of his opposition, Plaintiff request judicial notice of (1)
Plaintiff’s Government Tort Claim dated October 5, 2021; and (2) the City’s
rejection of Plaintiff’s Government Tort Claim dated October 4, 2022 and
delivered on October 13, 2022.
Plaintiff’s request for judicial
notice is GRANTED pursuant to Evidence Code Section 452, subdivision (c).
Meet
and Confer
Pursuant
to Code of Civil Procedure Section 435.5, subdivision (a), “[b]efore filing a
motion to strike pursuant to this chapter, the moving party shall meet and
confer in person, by telephone, or by video conference with the party who filed
the pleading that is subject to the motion to strike for the purpose of
determining if an agreement can be reached that resolves the objections to be
raised in the motion to strike.” (Code Civ. Proc., § 435.5, subd. (a).)
“As
part of the meet and confer process, the moving party shall identify all of the
specific allegations that it believes are subject to being stricken and
identify with legal support the basis of the deficiencies. The party who filed
the pleading shall provide legal support for its position that the pleading is
legally sufficient, or, in the alternative, how the pleading could be amended
to cure any legal insufficiency.” (Code Civ. Proc., § 435.5, subd. (a)(1).)
“The
moving party shall file and serve with the motion to strike a declaration
stating either of the following: (A) The means by which the moving party met
and conferred with the party who filed the pleading subject to the motion to
strike, and that the parties did not reach an agreement resolving the
objections raised by the motion to strike […] (B) That the party who filed the
pleading subject to the motion to strike failed to respond to the meet and
confer request of the moving party or otherwise failed to meet and confer in
good faith.” (Code Civ. Proc., § 435.5, subd. (a)(3).)
Here,
the City advances the declaration of Ricardo Baca, Esq., its counsel of record
to attest to the following meet and confer efforts regarding this present
motion. Baca avers that on September 28, 2023, Alyssa Acuña, Esq. (other counsel of record for the City) had a
telephonic meet and confer with Plaintiff’s counsel of record, Brandon Ortiz
about deficiencies in the complaint. (Baca Decl., ¶ 3.) Baca further avers that
the parties did not reach an agreement resolving the objections raised by the
motion to strike. (Id.) Moreover, Baca states on October 10, 2023, Acuña again spoke to Ortiz telephonically
about the operative complaint and indicated the City intended to file a motion
to strike based on deficiencies in Plaintiff’s complaint. (Id. at ¶ 4.) Ortiz
disagreed with Acuña’s
arguments, so the parties did not reach an agreement to resolve the issues
raised. (Id.) Baca also states on October 19, 2023, he spoke with Ortiz
via telephone to discuss the complaint and expressed intent to file a demurrer
and a motion to strike. Ortiz argued a demurrer would be improper but
communicated a motion to strike would be procedurally proper, which Baca agreed
with and decided to forego the demurrer. (Id. at ¶ 5.) Additionally, Baca declares the parties did
not reach an agreement during this conversation. (Id.) Lastly, Baca
states the parties met and conferred telephonic to discuss the complaint again
on February 23, 2024 and still could not reach an agreement resolving the
objections raised by the motion to strike filed on October 19, 2023. (Id.
at ¶¶ 6-7.)
Therefore,
the Court reviews the moving, opposition, and reply papers on the merits.
Discussion
Defendant
City of La Habra Heights (the “City”) moves for an order striking portions of
Plaintiff’s Verified Complaint on the grounds on that it is irrelevant, false,
or improper because such claims are barred under the six month claims
presentation requirement (first cause of action).
The
portions of the operative Complaint the City moves to strike allege as follows:
“Retaliation
for Sokoloff’s legally protected activity was swift and fierce. On
September 21, 2021, Entity Defendant
placed Sokoloff on a paid administrative leave for patently pretextual reasons.
Wooldridge – the same Wooldridge who aided and abetted Peel’s unlawful traffic
stops – signed the notice that was delivered to Sokoloff.” (Compl., ¶ 27.)
“Graft,
as chief of the Fire Department, would ordinarily make disciplinary decisions
within his Department. Graft, however, was not involved with or consulted about
the decision to place Sokoloff on administrative leave. Graft was informed
about the decision by Huerta after it had been made. Graft did not support the
decision and believed it to be retaliatory due to Sokoloff’s legally protected
activity.” (Compl., ¶ 28.)
“Plaintiff
alleges, based upon information and belief, that Huerta made the decision to
place Sokoloff on administrative leave due to his legally protected disclosures
as described herein.” (Compl., ¶ 29.)
“On
November 29, 2021, Entity Defendant took Sokoloff off administrative leave in a
letter. In another letter, Entity Defendant simultaneously placed Sokoloff on
another paid administrative leave allegedly due to Sokoloff’s arrest on
worker’s compensation fraud allegations that were not related to his employment
at Entity Defendant. (The charges related to a landscaping business that
Sokoloff owns.) Plaintiff alleges, based upon information and belief, that
Huerta and Entity Defendant were already planning to terminate Sokoloff prior
to learning of his arrest, which merely provided a convenient pretext.” (Compl.,
¶ 40.)
“Defendants
violated Labor Code section 1102.5 when they unlawfully retaliated against
Plaintiff by placing him on paid administrative leave, unpaid administrative
leave, and then terminating. Plaintiff’s protected disclosures were a
contributing factor in these decisions.” (Compl., ¶ 83.)
The City argues
Plaintiff’s allegations that the City violated Labor Code Section 1102.5 by
placing him on paid administrative leave must be stricken as untimely pursuant
to Government Code Sections 911.2 and 945.4.
Specifically,
Government Code Section 911.2, subdivision (a) states, “[a] claim relating to a
cause of action death or for injury to person or personal property or growing
crops shall be presented as provided in Article 2 (commencing with Section 915)
not later than six months after the accrual of the cause of action.” (Gov. Code
§ 911.2, subd. (a).)
Similarly, Government
Code Section 945.4 states, “[e]xcept as provided in Sections 946.4 and 946.6,
no suit for money or damages may be brought against a public entity on a cause
of action for which a claim is required to be presented in accordance with Chapter
1 (commencing with Section 900) and Chapter 2 (commencing with Section 910) of
Part 3 of this division until a written claim therefor has been presented to
the public entity and has been acted upon by the board, or has been deemed to
have been rejected by the board, in accordance with Chapters 1 and 2 of Part 3
of this division.” (Gov. Code § 945.4.)
The City further
argues despite knowing that he was being retaliated against, Plaintiff failed
to file a government tort claim for either the (a) September 21, 2021
administrative paid leave, or the (b) November 29, 2021 administrative paid
leave within six months of these dates. The City also argues the Complaint
clearly states that Plaintiff filed his claim in August of 2023. (Compl., ¶ 76.)
Moreover, the City contends Plaintiff filed his government claim with the City
on July 31, 2023, which was received by the City on August 2, 2023. As such,
the City contends everything that occurred six months prior to the filing of
his government tort claim is time barred including his claims for being put on
administrative leave on September 21, 2021 and November 29, 2021. Additionally
the City asserts it returned Plaintiff’s government claim as untimely and
specifically indicated that his only relief was to file an application for late
claim relief pursuant to Government Code Sections 911.3 and 911.4.
Government Code
Section 911.3, subdivision (a) states in pertinent part, “[w]hen a claim that
is required by Section 911.2 to be presented not later than six months after
accrual of the cause of action is presented after such time without the
application provided in Section 911.4, the board or other person designated by
it may, at any time within 45 days after the claim is presented, give written
notice to the person presenting the claim that the claim was not filed timely
and that it is being returned without further action.” (Gov. Code § 911.3,
subd. (a).)
Government Code
Section 911.4, subdivision (a) states in relevant part, “[w]hen a claim that is
required by Section 911.2 to be presented not later than six months after the
accrual of the cause of action is not presented within that time, a written
application may be made to the public entity for leave to present that claim.”
(Gov. Code § 911.4, subd. (a).) “The application shall be presented to the
public entity as provided in Article 2 (commencing with Section 915) within a
reasonable time not to exceed one year after the accrual of the cause of action
and shall state the reason for the delay in presenting the claim. The proposed
claim shall be attached to the application.” (Gov. Code § 911.4, subd. (b).)
The City further
asserts the notice included mandatory statutory language advising Plaintiff the
claim is being returned because it was not presented within six months and that
his only recourse is to apply without delay for leave to present a late claim
and that Plaintiff may seek the advice of an attorney. Likewise, the City
argues despite their notification to Plaintiff, he never filed an application
for late claim relief and chose to file this instant case instead.
In opposition,
Plaintiff argues assuming the 2021 suspensions are time barred acts, it is
still improper for the Court to strike these allegations because evidence that
the 2021 suspensions were retaliatory is evidence that the 2023 unpaid leave
and termination were similarly motivated by retaliation. Furthermore, Plaintiff
contends the prior acts are relevant to explain the gap in time between
Plaintiff’s first protected activity in August 2021 and his termination nearly
two years later in June 2023. Nonetheless, Plaintiff argues the claims based on
the 2021 suspension did not accrue until February 2023 because of the
Continuing Violation Doctrine (“CVD”) delays accrual for purposes of the tort
claim deadline for a Labor Code Section 1102.5 claim.
In Dominguez
v. Washington Mutual Bank (2008) 168 Cal.App.4th 714, the court held that “[a]
continuing violation exists if: (1) the conduct occurring within the
limitations period is similar in kind to the conduct that falls outside the
period; (2) the conduct was reasonably frequent; and (3) it had not yet
acquired a degree of permanence.” (Dominguez v. Washington Mutual Bank (2008)
168 Cal.App.4th 714, 721.) Plaintiff contends the allegations in the pleadings
are more than sufficient to satisfy the similarity factor because they were all
motivated by reporting of unlawful acts by Peel and the City; occurred with
daily frequency as Plaintiff never returned to work after he was suspended on
September 21, 2021 until his termination on June 1, 2023; and the 2021
suspensions did not acquire a degree of permanence until February 27, 2023. In
fact, Plaintiff asserts he complained that the suspension was retaliation on
October 5, 2021 but the City did not notify him of the outcome of the claimed
investigation into the allegations until October 13, 2022. Plaintiff also
asserts a reasonable person could believe that reconciliation remained possible
during pending investigation and the hiring of a new chief. In addition,
Plaintiff asserts notice that reconciliation was impossible did not arrive
until February 27, 2023, when the City escalated its retaliation by placing
Plaintiff on unpaid administrative leave for false reasons. Plaintiff contends
he filed his government tort claim in August 2023, within six months of accrual
of his claims.
Alternatively,
Plaintiff argues he substantially complied with the claim deadline because the
City did not provide the warning required by Government Code Section 913, subdivision
(b), which states “[i]f the claim is rejected, in whole or in part, the notice
required by subdivision (a) shall include a warning” that subject to certain
exceptions, the claimant only has six months from the date the notice was
personally delivered or deposited in the mail to file a court action on the claim.
(Gov. Code § 913, subd. (b).)
Plaintiff
asserts on October 5, 2021, he emailed Laherty, Huerta, and Woolridge claiming his
administrative leave was retaliation because he had reported Peel’s
impersonation of a peace officer to Graft and Laherty. (Compl., ¶ 37; Ex. A to
Pl. RJN.) Plaintiff argues these facts were plainly sufficient to place the
City on notice that Plaintiff was claiming compensable injury due to whistleblower
retaliation by the City and only sought reinstatement so did not need to make
monetary demand. Plaintiff further argues if the City believed the email
contained insufficient information to investigate and settle his claims, under Simms
v. Bear Valley Cmty. Healthcare Dist. (2022) 80 Cal.App.5th 391, the City
had a duty to notify Plaintiff of such so that he could cure the insufficiency but
did not do so. (Simms v. Bear Valley Cmty. Healthcare Dist. (2022) 80
Cal.App.5th 391, 395-96.) Thus, Plaintiff contends the City waived any defense
that the email failed to comply with the Government Claims Act. Plaintiff also
contends he pleaded facts showing the City was not prejudiced by the alleged
insufficiency because the City had investigated his retaliation claim and found
it lacked merit and did not warn Plaintiff that he had six months to file a
lawsuit as required under Government Code Section 913. (Ex. B to Pl. RJN.)
Lastly, Plaintiff argues the October 5, 2021 email was sufficient to alert the
City of the need to investigate because the Mayor is a member of the City
Council and Huerta and Woolridge were plainly supervisors.
As such,
Plaintiff argues he had from the date of the 2021 suspensions to file this
action pursuant to Government Code Section 945.6, subdivision (a)(2), which
states “[e]xcept as provided in Sections 946.4 and 946.6 and subject to subdivision
(b), any suit brought against a public entity on a cause of action for which a
claim is required to be presented in accordance with Chapter 1 (commencing with
Section 900) and Chapter 2 (commencing with Section 910) of Part 3 of the
division must be commenced…if written notice is not given in accordance with
Section 913, within two years from the accrual of the cause of action,” making
the statute of limitations September 21, 2023. Plaintiff asserts he filed this
case on September 18, 2023.
In reply, the
City argues Plaintiff’s October 5, 2021 email to Rafferty Woolridge does not satisfy
the requirements set forth in Government Code Section 910 because Plaintiff’s
email omits “the names of the public employees causing the injury, damage, or
loss” related to him being placed on administrative leave on September 21, 2021.
(Ex. A to Pl. RJN.) The City further contends Plaintiff’s email failed to
provide “the estimated amount of any prospective injury, damage, or loss,
insofar as it may be known at the time of the presentation of the claim” and at
the time Plaintiff’s damages did not exceed $10,000.00, so a sum certain amount
was necessary to comply with Section 910. Moreover, the City argues Plaintiff
failed to properly present a government tort claim to the City because (1) Plaintiff’s
alleged claim was delivered via email directly to Woolridge; (2) Plaintiff
never used the term “claim” in the email nor did he imply that the email served
as a government tort claim; (3) Plaintiff did not instruct Woolridge to forward
the “claim” to the statutorily designated recipients denoted in Government Code
Section 915; and Woolridge’s response to the email the following day omits
anything about Plaintiff’s email being construed as a government tort claim. (Ex.
A to Pl. RJN.) Additionally, the City argues Plaintiff’s action accrued on October
5, 2021 because Plaintiff knew about his injury, i.e., being retaliated against,
as early October 5, 2021. (Id.) The City also contends Plaintiff concedes
that on November 29, 2021, the Coty took him off administrative leave, which
resulted in some permanence as to the September 21, 2021 incident. (Compl., ¶
40.) Similarly, the City argues Plaintiff was placed on a different administrative
leave in relation to his arrest on worker’s compensation fraud, which was
separate and different from the September 21, 2021 leave, so Plaintiff cannot conflate
the two incidents. (Id.) Likewise, the City asserts Plaintiff was
neither placed on unpaid leave nor terminated for the 2021 incidents, thus they
are not similar in kind to the August 2023 incident. Finally, the City argues
there was a fourteen (14) month gap between the November 29, 2021 and February
27, 2023 incident, so they did not occur close in time nor frequently.
The Court finds
that the cited portions of Plaintiff’s complaint are irrelevant and improper as
there are barred by six (6) months presentation requirement under the
Government Claims Act. First, the October 5, 2021, indicates that Plaintiff was
seeking reinstatement and an investigation into why he was placed on
administrative leave. There is no indication that the subject email was
intended to be government tort claim. Furthermore, the subject email does not
comply with the requirements of Government Code Section 910. As such, Plaintiff
did not file a government tort claim with the City concerning the September 21,
2021 nor November 29, 2021 administrative leaves that would trigger Government Code
Section 913, subdivision (b). Moreover, the CVD theory applies to Fair Employment
and Housing Act (“FEHA”) complaints and Plaintiff’s claims are brought under Labor
Code Section 1102.5. (Dominguez v. Washington Mutual Bank (2008) 168
Cal.App.4th 714, 721.) The operative complaint makes no indication that it is
being brought under the FEHA to support use of the CVD theory. Lastly, the City
in compliance with Government Code Sections 911.3 and 911.4, informed Plaintiff
that his claims alleging injury from over six months was presented late and
warned Plaintiff that his recourse would be to apply for leave to present the
late claims. Plaintiff did not apply for leave to present the late claims concerning
the September 21, 2021 and November 29, 2021 claims.
Therefore, the
motion to strike (not anti-SLAPP) without demurrer is GRANTED without Leave to
Amend.
It
is so ordered.
Dated: March 18, 2024
_______________________
ROLF M. TREU
Judge of the
Superior Court