Judge: Michael Shultz, Case: 24STCV29803, Date: 2025-04-22 Tentative Ruling

DEPARTMENT 40 - MICHAEL J. SHULTZ  - LAW AND MOTION RULINGS
The Court issues tentative rulings on certain motions.The tentative ruling will not become the final ruling until the hearing [see CRC 3.1308(a)(2)]. If the parties wish to submit on the tentative ruling and avoid a court appearance, all counsel must agree and choose which counsel will give notice. That counsel must 1) email Dept 40 by 8:30 a.m. on the day of the hearing (smcdept40@lacourt.org) with a copy to the other party(ies) and state that all parties will submit on the tentative ruling, and 2) serve notice of the ruling on all parties. If any party declines to submit on the tentative ruling, then no email is necessary and all parties should appear at the hearing in person or by Court Call. 

Case Number: 24STCV29803    Hearing Date: April 22, 2025    Dept: 40

24STCV29803 Rhonda David-Shirley v. County of Los Angeles

Tuesday, April 22, 2025.

[TENTATIVE] ORDER OVERRULING DEFENDANT’S DEMURRER TO THE FIRST AMENDED COMPLAINT

                                                                                        I.          BACKGROUND

On November 13, 2024, Plaintiff Rhonda David-Shirley (“Plaintiff”) filed this action against Defendants County of Los Angeles (“Defendant”) and Does 1 through 100. On February 4, 2025, Plaintiff filed a First Amended Complaint (“FAC”) alleging five causes of action: (1) whistleblower retaliation in violation of Cal. Labor Code § 1102.5, (2) retaliation under FEHA, (3) FEHA hostile work environment harassment (4) FEHA discrimination, and (5) FEHA failure to prevent discrimination, harassment, and retaliation. This action arises out of Plaintiff’s employment with Defendant, in which she alleges she suffered discrimination and harassment after she complained about hostile and racist behavior toward Plaintiff and other Black members of the Department.

On March 26, 2025, Defendant filed the instant demurrer to Plaintiff’s FAC without a motion to strike. Plaintiff opposed on April 9, 2025. No reply was filed.

                                                                                         II.          DISCUSSION

Before filing a demurrer, the demurring party is required to meet and confer with the party who filed the pleading demurred to for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer. (Code Civ. Proc. § 430.41(a).)  Here, the Court finds that the meet and confer requirement pursuant to Code of Civil Procedure section 430.41, subdivision (a)(3)(B) is satisfied. (Sypek Decl., ¶¶ 5-6.)

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.)

“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. (Code Civ. Proc. §§ 430.30, 430.70.) At the pleading stage, a plaintiff need only allege ultimate facts sufficient to apprise the defendant of the factual basis for the claim against him. (Semole v. Sansoucie (1972) 28 Cal. App. 3d 714, 721.) A “demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the pleading, or the construction of instruments pleaded, or facts impossible in law.” (S. Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732 (internal citations omitted).)

a.     First Cause and Second Causes of Action for Whistleblower Retaliation in violation of Cal. Labor Code § 1102.5 and FEHA retaliation

To establish retaliation under Labor Code section 1102.5, a plaintiff must show that: (1) she engaged in protected activity; (2) her employer thereafter subjected her to an adverse employment action; and (3) a causal link between the two. (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 287.) Labor Code § 1102.5 prohibits employers from retaliating against an employee for disclosing a violation of state or federal statute. (Cal. Lab. Code § 1102.5(b), (c).)

To establish a prima facie case of retaliation, “the plaintiff must show that he engaged in a protected activity, his employer subjected him to adverse employment action, and there is a causal link between the protected activity and the employer's action.” (Iwekaogwu v. City of Los Angeles (1999) 75 Cal.App.4th 803, 814, citing Flait v. North American Watch Corp. (1992) 3 Cal.App.4th 467, 476.)

Defendant asserts that the retaliation claims fail because Plaintiff does not allege that she engaged in protected activity, that she suffered an adverse employment action, or any causal link between the two. (Demurrer p. 11:26-28.) The first and second causes of action are based on the same alleged protected conduct and retaliation.

The FAC alleges that Plaintiff was employed by Department of Children and Family Services (“DCFS.”) (FAC ¶ 3.) Plaintiff alleges she “complained orally and in writing to DCFS Director Brandon Nichols about Renner. . .She explained that Renner showed total disregard for her as a woman of color and was hostile toward Black employees. . .Plaintiff further told Nichols that Renner treated her differently than her two white male counterparts. She provided numerous examples of the preferential treatment Renner gave to white employees, and the discriminatory treatment given to Black employees. Plaintiff filed a County Policy of Equity complaint (“CPOE”) against Renner at that time.” (FAC ¶ 22.)  The FAC sufficiently alleges Plaintiff’s engagement in protected activity comprising of complaining to DCFS Director and submitting complaints due to racial discrimination. 

An adverse employment action is one that materially affects the terms, conditions or privileges of employment. (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1051 (“Yanowitz”); see Pinero v. Specialty Restaurants Corp. (2005) 130 Cal.4th 635, 640-641.) The test considers workplace realities and includes the “entire spectrum of employment actions that are reasonably likely to adversely and materially affect an employee's job performance or career advancement.” (Yanowitz, supra 36 Cal.4th 1053-1054, fn. 13.) “. . .[A] series of separate retaliatory acts collectively may constitute an “adverse employment action” even if some or all of the component acts might not be individually actionable. (Id. at 1058; Bailey v. San Francisco Dist. Attorney's Office (Bailey) (2024) 16 Cal.5th 611, 637-638.) Here, the FAC alleges “DCFS Deputy Director Kym Renner has. . . repeatedly undermined Plaintiff’s authority, violating the chain of command by bypassing her. . .Renner has yelled and used profanity regularly toward Plaintiff. . . She raises her voice and chastises Plaintiff.” (FAC ¶ 12.)  Plaintiff alleged that Renner then took action that undermined Plaintiff and harmed Plaintiff’s reputation in a significant way, encouraging her colleagues to believe she doesn’t know what she is doing.” (FAC ¶ 39.) “. . .Renner pointedly ignored Plaintiff, speaking only to the others as if she were not there. . .” (FAC ¶ 41.) “. . .Renner asked Plaintiff about when she would retire and about her succession plan. Plaintiff had given no indications of a desire to retire.” (FAC ¶ 40.) “. . .[T]he Board of Supervisors approved 88 items (funded positions) for Adoptions, finding the Division was severely understaffed. But Renner only allowed Plaintiff to fill 18 of the 88 items allotted. She froze the remaining items and tried to reallocate them to other areas. . .” (FAC ¶ 30.) The Court finds that the FAC alleges a series of retaliatory acts committed by Renner that may, collectively constitute an adverse action. (Bailey, supra 16 Cal.5th 638, emphasis in original.)

As to causation, Plaintiff alleges two dates she complained about Renner and Renner’s resulting conduct. First, Plaintiff alleges “On or about May 3, 2023, Plaintiff complained orally and in writing to DCFS Director Brandon Nichols about Renner.  Ever since Plaintiff complained to Director Nichols and filed the CPOE complaint, Renner has. . .: had her assistant Anna Holzner participate in their 1:1 meetings, and has asked her to be part of Plaintiff’s interview panels. Renner met with two of Plaintiff’s former colleagues in a transparent attempt to sabotage Plaintiff, asking them to criticize Plaintiff’s work. Renner used outdated information from the colleagues’ time in Adoptions years earlier to criticize Plaintiff’s management in a year of much higher caseloads. . . On or around August 1, 2023, Renner began reaching out directly to Plaintiff’s employees, bypassing her entirely. . . On or around September 25, 2023, a meeting was set up with Casey Family Services to investigate the Adoptions Division. Plaintiff asked which staff would be interviewed. She and her managers were left out of the process entirely. Again, Renner relied on people who knew nothing about adoptions. Plaintiff believed this was further sabotage and retaliation for per protected activity in complaining about Renner’s racist and hostile behavior to Director Nichols.” (FAC ¶¶23-28.) Second, Plaintiff alleged “On or about October 23, 2023, Plaintiff filed a retaliation CPOE against Renner for the foregoing conduct. . .On or around October 30, 2023, Renner emailed Plaintiff that Renner’s assistant Anna Holzner had to be part of the hiring process, which her counterparts do not need to do. Renner made this change after Plaintiff’s May 3, 2023, complaint to Director Nichols. On or around October 31, 2023, Renner emailed Plaintiff stating that no one was to be hired to fill any of the 88 positions approved by the Board of Supervisors for Adoptions. . .The items remained frozen while Renner tried to reallocate them elsewhere. . .Since November 3, 2023, Renner has repeatedly undermined Plaintiff by reaching out to her staff without including Plaintiff on a regular basis. Renner also had her assistant reach out to stuff and bypass Plaintiff.” (FAC ¶¶ 33-37.) The Court finds that the FAC alleges a series of retaliatory acts committed by Renner, including scrutiny of and bypassing Plaintiff, that followed close in time to when Plaintiff engaged in protected activity. Plaintiff has pleaded a prima facie case of retaliation. (Lab. Code, § 98.6 (b)(1).)   Accordingly, Defendant’s demurrer to the first and second causes of action is OVERRULED.

b.     Third Cause of Action for FEHA hostile work environment harassment

Defendant asserts that the harassment claim fails because Plaintiff does not plead severe and pervasive conduct based on a protected status. (Demurrer p. 12:7-8.) “To prevail on a claim that a workplace is racially hostile under FEHA, an employee must show she was subjected to harassing conduct that was (1) unwelcome; (2) because of race; (3) sufficiently severe or pervasive to alter the conditions of her employment and create an abusive work environment and (4) imputable to the employer. (Bailey, supra 16 Cal.5th 627.) “[H]arassment consists of conduct outside the scope of necessary job performance, conduct presumably engaged in for personal gratification, because of meanness or bigotry, or for other personal motives.” (Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 707.) “. . .harassment claims focus on ‘situations in which the social environment of the workplace becomes intolerable because the harassment (whether verbal, physical, or visual) communicates an offensive message to the harassed employee.’” (Bailey, supra 16 Cal.5th 638, emphasis in original.) “The working environment must be evaluated in light of the totality of the circumstances. These may include the frequency of discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance. The required level of severity or seriousness varies inversely with the pervasiveness or frequency of the conduct.” (Id. at 628, [citation and internal quotations omitted].) “The objective severity of harassment should be judged from the perspective of a reasonable person in the plaintiff's position.” (Id. at 629.)

The FAC alleges that “Plaintiff is a Black woman over 40 years of age. She is a member of a protected class. . .” (FAC ¶ 73.) Plaintiff alleges “Renner has yelled and used profanity regularly toward Plaintiff and toward her adoption managers and staff, including use of the ‘F-word’ and the ‘S-word. . .Renner raises her voice and chastises Plaintiff and other Black employees for such trivial mistakes as getting an acronym wrong. . . In Plaintiff’s presence, Renner accused Plaintiff’s Black Clerical Administrator of not being on camera during a meeting because ‘she didn’t comb her hair.’ This was very offensive to Plaintiff and the other Black employees who heard Renner. . .” (FAC ¶¶ 12-13.) “Renner held a meeting with Plaintiff, two of her colleagues, and the white manager. . .Renner pointedly ignored Plaintiff, speaking only to the others as if she were not there. This was deeply humiliating.” (FAC ¶ 41.) The FAC alleges harassment of a frequent nature that could convey an offensive message to Plaintiff.  Thus, the Court finds that the FAC states a cause of action for hostile work environment harassment. The Court OVERRULES Defendant’s demurrer to the third cause of action.

c.      Fourth Cause of Action for FEHA discrimination

Defendant asserts that Plaintiff’s discrimination claim fails because Plaintiff has not suffered an adverse action or discriminatory motive. (Demurrer p. 12:12.) To state a claim of FEHA discrimination, a plaintiff must generally plead facts showing that (1) she was a member of a protected class, (2) she was performing competently in the position she held, (3) she suffered an adverse employment action, and (4) some other circumstance suggests discriminatory motive. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 355.)

      As discussed above, an adverse employment action may consist of a “series of subtle, yet damaging, injuries,” rather than a single actionable event. (Yanowitz, supra 36 Cal.4th 1058.) The FAC alleges “Renner created the largest division under Renner’s management, while allocating Plaintiff and her managers far fewer resources than Renner allocated to white managers.” (FAC ¶ 15.) “Plaintiff asked Renner if she could start working on splitting the division into two, since she had overseen both for three years, and, together with her managers, was the best person to make decisions on staffing the two divisions post-split. Renner refused and instead hired a white male with no relevant experience to decide how to split Plaintiff’s division in two. . .” (FAC ¶ 16.) “Renner allowed the white male RFS manager to transfer problem staff to Plaintiff’s Adoptions division because he didn’t want to deal with them. Plaintiff was treated differently as an older Black woman. . .Renner took away critical decision-making duties from Plaintiff while allowing her two white male counterparts retain the decision authority.” (FAC ¶¶ 18-19.) The Court finds that the FAC alleges a series of actions suggesting a discriminatory motive that may constitute an adverse action. The Court OVERRULES Defendant’s demurrer to the fourth cause of action.

d.     Fifth Cause of Action for FEHA failure to prevent discrimination, harassment, and retaliation

Defendant asserts that the claim for failure to prevent harassment, retaliation and/or discrimination under FEHA fails because there is no predicate FEHA claim to support it. Failure to prevent harassment or discrimination requires (1) actionable discrimination or harassment by employees or non-employees, (2) defendant's legal duty of care toward plaintiff (defendant is plaintiff’s employer) (3) breach of duty (failure to take all reasonable steps necessary to prevent discrimination and harassment from occurring), (4) legal causation, and (5) damages to plaintiff. (Trujillo v. No. County Transit Dist.¿(1998) 63 Cal.App.4th 280, 287, 289; Carter v. Cal. Dept. of Veterans Affairs (2006) 38 Cal.4th 914, 931; Gov. Code § 12940, subd. (k).) FEHA also permits a separate and independent claim for failure to prevent and investigate retaliation. (Taylor v. City of Los Angeles Dep’t of Water & Power (2006) 144 Cal.App.4th 1216, 1240, disapproved on another ground by Jones v. Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158.)  Because Defendant does not argue in the alternative, the Court OVERRULES Defendant’s demurrer to the fifth cause of action.

                                                                                           III.          CONCLUSION

Based on the foregoing, the Court OVERRULES Defendant’s Demurrer to the first, second, third, fourth, and fifth causes of action.