Judge: Michael Shultz, Case: 24STCV18945, Date: 2025-02-06 Tentative Ruling

Case Number: 24STCV18945    Hearing Date: February 6, 2025    Dept: 40

24STCV18945 Kimberly Louie v. City of Los Angeles

[TENTATIVE] ORDER OVERRULING IN PART AND SUSTAINING IN PART DEMURRER TO PLAINTIFF’S COMPLAINT, OR ALTERNATIVELY, MOTION TO STRIKE

                                                                                         I.         BACKGROUND

      The complaint alleges that Defendant employed Plaintiff as a construction inspector. Plaintiff alleges that her supervisors subjected Plaintiff to discrimination, harassment, and retaliation on grounds of her race/national origin, gender, and disability. Plaintiff alleges four causes of action in violation of the Fair Employment and Housing Act (“FEHA”).

                                                                                          II.        ARGUMENTS

      Defendant argues that Plaintiff failed to exhaust her administrative remedies, that the claims are barred by the statute of limitations, and the claims are uncertain and/or insufficiently alleged. Alternative, if the court does not sustain demurrer, Defendant argues that the race and gender based discrimination claims are not well pled, and therefore, the court should strike portions of the complaint that alleges the terms “race” and “gender.” If the court does not find that claims that allegedly occurred in 2019 are not barred by the statute of limitations, the court should strike “from in or around 2019.”

      In opposition, Plaintiff argues she timely exhausted her administrative remedies. The continuing violations and relation-back doctrines avoid the statute of limitations. The claims are adequately alleged and are not fatally uncertain. Any defects can be cured on amendment.

      In reply, Defendant argues there are no alleged facts to support exhaustion of administrative remedies. The relation-back doctrine does not apply to allegations outside the statute of limitations, and the continuing violations doctrine does not save the claims.

                                                                                  III.       LEGAL STANDARDS

      A demurrer tests the sufficiency of a complaint as a matter of law and raises only questions of law. (Schmidt v. Foundation Health (1995) 35 Cal.App.4th 1702, 1706.) In testing the complaint’s sufficiency, the court must assume the truth of the properly pleaded factual allegations as well as facts that can be reasonably inferred from those expressly pleaded facts. The court may also consider matters properly subject to judicial notice. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

      The court may not consider contentions, deductions, or conclusions of fact or law. (Moore v. Conliffe (1994) 7 Cal.4th 634, 638.) Plaintiff is required to allege facts sufficient to establish every element of each cause of action. (Rakestraw v. California Physicians Service (2000) 81 Cal.App.4th 39, 43.) Where the complaint fails to state facts sufficient to constitute a cause of action, courts should sustain the demurrer. Code Civ. Proc., § 430.10(e); Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126.)

      Sufficient facts are the essential facts of the case stated "with reasonable precision and with particularity that is sufficiently specific to acquaint the defendant with the nature, source, and extent of his cause of action.” (Gressley v. Williams (1961) 193 Cal.App.2d 636, 643-644.)  Whether the Plaintiff will be able to prove the pleaded facts is irrelevant. (Stevens v. Superior Court (1986) 180 Cal.App.3d 605, 609–610.)

      A motion to strike is limited to matters that appear on the face of the pleading or any matter of which the court can take judicial notice. (Code Civ. Proc., § 437.) The court may strike any irrelevant, false, or improper matter inserted in any pleading; or strike all or any part of the pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (Code Civ. Proc. §436 subd. (a)-(b).)

                                                                                           IV.       DISCUSSION

A.     Judicial notice

      The court grants Defendant’s request for judicial notice of records from the Civil Rights Department (“CRD”) relating to Plaintiff’s administrative complaint. (Civ. Code, § 452 subd. (c); Fowler v. Howell (1996) 42 Cal.App.4th 1746, 1750 [permits judicial notice of records of state administrative agencies.].)

B.     Failure to exhaust administrative remedies

      Before filing a civil action, Plaintiff is required to exhaust administrative remedies by filing an administrative complaint with the CRD and obtaining a right to sue letter. (Guzman v. NBA Automotive, Inc. (2021) 68 Cal.App.5th 1109, 1118; Gov. Code, § 12960 subd. (c); Gov. Code, § 12965.) Defendant argues that the CRD charges did not meet pleading requirements as the charge included conclusory allegations and had no reference to specific facts. The Amended Charge was ambiguous because Plaintiff alleged conflicting dates when the misconduct began.  

      The exhaustion requirement is satisfied if the allegations in the civil complaint are “like and reasonably related to” the allegations in the CRD Charge or “likely to be uncovered in the course of a DFEH investigation.” (Clark v. Superior Court (2021) 62 Cal.App.5th 289, 301.) The administrative complaint must set forth particulars of the alleged wrongful conduct which is described in the California Code of Regulations.[1] Additional information is required for employment discrimination claims. (Cal. Code Regs., tit. 2, § 10007.) The facts alleged in the CRD Charge are to be liberally construed. (Cal. Code Regs., tit. 2, § 10007 subd. (d).) Claimants are not held to “literary exactitude,” and the Charge is “not intended as a limiting device.” (Soldinger v. Northwest Airlines, Inc. (1996) 51 Cal.App.4th 345, 381.)

      Plaintiff submitted her CRD Charge on July 31, 2023, which alleged misconduct beginning on February 7, 2022 (the “First Charge”) and alleged complaints for harassment, discrimination, and retaliation, couched in broad language. (RJN Ex. 1.) Plaintiff received her right to sue letter on July 31, 2023. (RJN Ex. 2.)

      Plaintiff submitted an amended CRD Charge on July 30, 2024 (“Amended Charge), again asserting the adverse actions took place on February 7, 2022, and consisted of harassment, discrimination, and retaliation as in the First Charge, but Plaintiff added specific detail of the misconduct that began in 2019 and continued through March 6, 2023. (RJN Ex. 4). The CRD sent a letter stating, in pertinent part, that the Amended Charge was deemed to have the same filing date as the First Charge, and the July 30, 2024, letter was not a new right-to-sue letter. (RJN Ex. 5.)

      Plaintiff submitted a Third Charge on July 30, 2024, asserting new misconduct constituting discrimination, harassment,  occurring from June 18, 2024 (the “Third Charge”) but also including the 2019 through March 6, 2023, specific misconduct asserted in the Second Charge.  (RJN Ex. 6.) The CRD indicated that the case had been closed and a right to sue letter issued after the original Charge. (Id.)

      The First Charge as amended by the Second and Third Charges providing specific detail and satisfies the requirements of Title 2 of the Cal. Code of Regulations § 10007. FEHA provisions are to be construed liberally to accomplish the purposes of FEHA to “safeguard the civil right of all persons to seek, obtain, and hold employment without discrimination.” (Guzman v. NBA Automotive, Inc. (2021) 68 Cal.App.5th 1109, 1118 fn. 8; Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 267 [“the scope of the judicial complaint is limited to the ‘scope’ of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination."].)

      The civil complaint mirrors the allegations of the First Charge as amended by the Second and Third Charges, and falls within the scope of allegations contained in those Charges. Plaintiff alleges she was harassed based on her Asian ethnicity because her eyes “slanted;” co-workers mocked the shape of her eyes; asking Plaintiff if she was aware that COVID-19 was created in a lab in China, mocking Plaintiff’s stutter by mimicking her, and mocking Plaintiff’s pronunciation of words which was hard to understand due to her “broken English.” (Complaint, ¶ 10.) The complaint includes additional allegations of gender-based harassment, race discrimination, and disability-based discrimination. (Complaint, ¶ 11.)

      The civil complaint meets the requirement that the allegations therein are “like and reasonably related to” the allegations in the CRD Charge or “likely to be uncovered in the course of a DFEH investigation.” (Clark v. Superior Court (2021) 62 Cal.App.5th 289, 301.)

      Plaintiff’s addition of earlier dates of misconduct does not render the CRD Charge ambiguous as Defendant argues; rather it fills out the general allegations of the First Charge. It is reasonable to conclude that an investigation of the First Charge would uncover earlier acts of related, similar misconduct. The purpose of the charge is to trigger the investigatory function and to obtain voluntary compliance with the law. (Nazir, supra at 268.)

C.     Timeliness of the CRD Charges

      Plaintiff had three years from the date of the unlawful practice to present her CRD Charge. (Gov. Code, § 12960 subd. (e)(5).) The First Charge, filed July 31, 2023, describing unlawful practices beginning February 7, 2022, was timely. A right-to-sue letter was issued for that Charge and the matter was closed. The Amended Charge filed July 30, 2024, described unlawful practices beginning on February 7, 2022, but added unlawful practices from 2019 through February 2021. According to Defendant, Plaintiff was required to file the charge for the 2019 through February 2021 incidents by February 2024 (three years after the last incident). (Dem.13:14-17.) By Defendant’s calculation, since the Amended and Third Charges were submitted July 30, 2024, the amended claims were “untimely.”

      The CRD, however, deemed the Amended and Third Charge to “have the same filing date of the original complaint” which was July 31, 2023. (RJN Ex. 5.) Therefore, unlawful practices occurring from July 31, 2020, going forward were timely presented.

      Citing  Rodriguez v. Airborne Express (9th Cir. 2001) 265 F.3d 890. (Dem. ¶ 13:25.), Defendant contends that the new conduct alleged in the Amended Charge and Third Charge were untimely because they are “different kinds of allegedly improper conduct” and “are not based on the same operative facts because of the different dates that the unlawful practices occurred.  In Rodriguez, the plaintiff asserted a race discrimination claim in the Charge, but alleged only a disability discrimination claim in the civil complaint, an entirely new claim. The court found the disability discrimination claim was outside the scope of the DFEH investigation because the charge and the civil complaint asserted "two claims involve[ing] totally different kinds of allegedly improper conduct, and investigation into one claim would not likely lead to investigation of the other." (Rodriguez v. Airborne Express (9th Cir. 2001) 265 F.3d 890, 897.)

      Here, while the Amended and Third Charges assert more detail that formed the basis for Plaintiff’s broadly asserted claims of discrimination, harassment, and retaliation made in the First Charge, the basic allegations of discrimination, harassment, and retaliation are consistent. Plaintiff here is not alleging discrimination based on race in the Charge and then asserting disability discrimination in the civil action as in Rodriguez.

D.     The continuing violations doctrine can apply to include misconduct occurring from 2019

      through July 30, 2020 (beyond the three year period before the filing of the First Charge).

      The continuing violations doctrine permits a plaintiff to recover for unlawful practices occurring outside the statute of limitations period if that conduct was "(1) similar or related to the conduct that occurred within the limitations period; (2) the conduct was reasonably frequent; and (3) the conduct had not yet become permanent. " (Jumaane v. City of Los Angeles (2015) 241 Cal.App.4th 1390, 1402.) “Permanence” means that “an employer's statements and actions make clear to a reasonable employee that any further efforts at informal conciliation to obtain reasonable accommodation or end harassment will be futile.” (Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, 823.)

      All Charges allege that Plaintiff was subjected to hostile and offensive conduct, discrimination, and retaliation on the basis of her race, gender, and/or national origin and disability in a speech impediment (among other things) by her supervisor John Collins and Collins’ supervisor, Dominic Ghezzi, and other male coworkers in her working group (Def.’s RJN Ex., 4).  The conduct worsened in February 2021. Plaintiff complained, but no action was taken. (Id.) The behavior persisted for more than a month. Plaintiff describes the behavior in detail and gives examples occurring on March 6, 2021, March 19, 2021, until she was transferred to a different department in late March, given a different shift that was untenable to Plaintiff, and given a lower rate of pay. (Id.)

      In July 2021, Plaintiff discovered that Ghezzi had placed Plaintiff’s protected complaints on a shared drive accessible to all inspectors in retaliation for her escalating her complaints and to make her a “pariah” amongst her co-workers. (Id.). The retaliatory conduct continued through  February 2022, when Defendant continued to fail to take meaningful action to investigate and prevent the conduct in response to Plaintiff’s complaints. (Id.) 

      Plaintiff has established that the 2019 and 2020 conduct occurring outside the limitations period was a continuing course of frequent conduct that was similar and related to the conduct that fell within the 3-year limitations period. 

      Defendant next argues that the third cause of action for race harassment must be dismissed because Plaintiff failed to assert this in her CRD Charges. The First Charge alleges race discrimination (RJN Ex. 1, 1:24.)  It is repeated in the Amended Charge (RJN, Ex. 4, 1:24) and elaborated upon (commenting on the type of Asian Plaintiff was, pulling back their eyes to mimic the shape and “slant” of her eyes, and making references to COVID-19 being created in a lab in China. (Id. 2:18-21.).) Race discrimination is repeated in the Third Charge. (Ex. 6, 1:24-25; 2:21-24.)

E.     Failure to state a claim.

1.     Gender-based and race-based discrimination

      To establish this claim, Plaintiff must prove the following elements: “(1) she is a member of a protected group; (2) she was subjected to an adverse employment decision; (3) she was qualified for the position; and (4) she was replaced by a person outside the protected class, or similarly situated non-protected employees were treated more favorably" and that some other circumstance suggests discriminatory motive. (Vincent v. Brewer Co. (6th Cir. 2007) 514 F.3d 489, 494; Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 355.)

      Defendant contends that Plaintiff did not allege conduct directed at her, but rather conduct directed at other women. Defendant is referring to allegations related to harassment. Plaintiff alleges circumstances inferring that the adverse action directed against was based on gender and race. Plaintiff alleges she was the only construction inspector of Asian descent working for Defendant at Los Angeles World Airports. (Complaint, ¶ 9.) Plaintiff alleges that her supervisor created and enforced rules applicable only to Plaintiff and reprimanded her for violating these rules. (Complaint, ¶ 15.) She alleges that she was transferred to a day shift which was untenable and subject to a cut in pay and kept there although the reassignment was supposed to last for only a month. (Complaint, ¶ 17.)

      Between March 2021 and February 2022, Plaintiff’s work schedule was materially changed four times. (Complaint, ¶ 22.) Plaintiff was routinely assigned 4-5 times the amount of work that her male counterparts were assigned. (Id.)

      An adverse employment action is construed broadly to include the “entire spectrum of employment actions that are reasonably likely to adversely and materially affect an employee's job performance or opportunity for advancement in his or her career.” (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1054.) The transfer to the day shift impeded Plaintiff’s ability to take her daughter to appointments and reduced her pay. While Plaintiff alleges that this is also retaliatory, it is also adequate to show an inference that the adverse employment action was gender- and race-based given she was the only Asian female in her group.

2.     Gender-based and race-based harassment.

      The harassment claim is adequately alleged. California recognizes two theories of liability for harassment claims: "quid pro quo harassment, where a term of employment is conditioned upon submission to unwelcome sexual advances ... [and] hostile work environment [based on sex], where the harassment is sufficiently pervasive so as to alter the conditions of employment and create an abusive work environment." (Hughes v. Pair (2009) 46 Cal.4th 1035, 1043.) The existence of a hostile work environment depends on the totality of circumstances. (Hughes at 1044.) To be actionable, a sexually objectionable environment must be both objectively and subjectively offensive; therefore, “a plaintiff who subjectively perceives the workplace as hostile or abusive will not prevail ... if a reasonable person ... considering all the circumstances, would not share the same perception.” (Id.)

      Plaintiff (being the only woman inspector of Asian descent) alleges that Collins commented that the only reason a female inspector was promoted was because she slept with a supervisor and every contractor assigned to her projects. (Complaint, ¶ 11.c) Defendant does not cite any authority that the hostile comment must be directed at Plaintiff. Rather, the workplace must be hostile or abusive (subjectively and objectively) based on gender, race, and disability (as alleged here).

      Collins allegedly made comments that a female inspector who was allegedly involved in an extramarital affair “deserved to get beat up for getting involved with another man.” (Complaint, ¶ 11.) Plaintiff alleges male inspectors used the words “red alert” to notify the other male inspectors when an attractive woman approached. (Complaint, ¶ 21.) Plaintiff suffered from a disability, speech impediment (Complaint, ¶ 10.) She was subjected to harassment as she was mocked, mimicked, and laughed at because she stuttered. (Complaint, ¶ 10.d.) her supervisors and coworkers allegedly mocked her pronunciation of certain words, stating it was hard to understand her “broken English.” (Complaint, ¶ 10.e.)

      Additionally, Supervisor Collins allegedly made racially disparaging remarks about African Americans, (“dumb black H.R. analysts.”) (Complaint, ¶ 11.d-e.) Collins complained that his daughter had to work with too many “blacks and Hispanics.”

      With respect to the fourth cause of action for failure to invent and prevent discrimination and harassment, Defendant concedes that this claim is derivative of her harassment, discrimination and retaliation claims. (Dem. 19:13.17.) As the underlying claims survive, this cause of action also survives.

3.     Race-based and disability-based discrimination

      The allegations discussed previously in part 1 regarding the making and enforcement of rules only for Plaintiff and her transfer to an unwanted shift with reduced pay also serve as predicate adverse actions based on race, as Plaintiff alleges, she was the only Asian female inspector in her group.

      A claim for disability discrimination in violation of FEHA, requires a showing that the plaintiff “(1) suffered from a disability, or was regarded as suffering from a disability; (2) could perform the essential duties of the job with or without reasonable accommodations, and (3) was subjected to an adverse employment action because of the disability or perceived disability."

      Plaintiff alleges she had a disability (a speech impediment) and took medical leave on February 2022 in conjunction with her diagnosis for major depressive disorder, general anxiety disorder, and post-traumatic stress disorder. (Complaint, ¶23.) Plaintiff notified Defendant that she was set to return to work on February 21, 2023, with work restrictions. (Complaint, ¶ 25.) She reported for work on February 21, 2023, only to be sent home because Defendant claimed they could not accommodate her work restrictions because there weren’t any light duty assignments. (Id.)

      Plaintiff does not allege that adverse actions occurred because of the disabilities. Demurrer on that ground is SUSTAINED.        

                                                                                               V.        CONCLUSION

      Based on the foregoing, demurrer is SUSTAINED in part as to Plaintiff’s claim for disability discrimination on grounds the claim is not well pled. As to all other alleged claims, demurrer is OVERRULED. Defendant’s alternative request to strike is DENIED.

      Leave to amend is ordinarily given if there is a reasonable possibility that the defect can be cured. (Association of Community Organizations for Reform Now v. Department of Industrial Relations (1995) 41 Cal.App.4th 298, 302. Plaintiff is given 30 days leave to amend to allege discriminatory animus.