Judge: Peter A. Hernandez, Case: 20PSCV00291, Date: 2023-09-28 Tentative Ruling

Case Number: 20PSCV00291    Hearing Date: September 28, 2023    Dept: K

Defendant California Department of Corrections and Rehabilitation’s Motion for Judgment on the Pleadings to the Second Amended Complaint is DENIED as MOOT in part (i.e., as to the second through fifth causes of action) and otherwise DENIED (i.e., as to the allegations of retaliation and harassment in the sixth cause of action).

Background[1]  

Plaintiff Francine Mitchell (“Plaintiff”) alleges as follows:

Plaintiff, a Hispanic female, has worked for the California Department of Corrections and Rehabilitation (“CDCR”) for 24 years and holds the rank of Parole Agent III, Unit Supervisor, at the DAPO’s El Monte GPS Parole Unit. In July 2017, Plaintiff overheard an African American colleague, Miatta Watts (“Watts”), refer to other CDCR department employees as “The Mexicans” to supervisor Ron Warner, a Caucasian male (“Watts/Warner incident”). Warner did not comment or correct Watts for that remark. Plaintiff reported the Watts/Warner incident in email and in person to Acting Chief Deputy Jason Johnson (“Johnson”), who is African American. After Plaintiff complained to Johnson, Plaintiff was assigned to the window reception desk where she worked alongside low-level clerical personnel. Plaintiff complained to Johnson and was relocated to the Training Department back office storage room.

Plaintiff lodged a formal complaint of workplace harassment and hostile work environment in August 2017; shortly thereafter Johnson criticized parole agent Raul Sandoval for allowing Plaintiff to drive a state vehicle.

Plaintiff filed her first EEO complaint on or about August 7, 2017 and almost immediately was treated differently by CDCR than other non-complaining CDCR employees. Plaintiff learned that another non-complaining Light Duty employee was allowed to travel to/from a supposedly “restricted” area while Plaintiff was not. On August 11, 2017, Johnson notified Plaintiff that CDCR had found no EEO violations. On August 28, 2017, CDCR notified Plaintiff that it was terminating her light duty status and that she would have to be off work due to continued restrictions.

On May 1, 2018, Plaintiff returned to work as the Unit Supervisor, but Plaintiff’s African American supervisor, Parole Administrator Vincent Thompson (“Thompson”), gave preferential treatment to African American CDCR employees, ignored her email inquiries regarding same, orchestrated “bogus, unfounded” disciplinary charges against her after receiving her complaints, and interfered in her effort to secure a Chief Deputy Warden position. Thompson and District Administrator Dominque Hughes (“Hughes”) wrongfully placed negative information into her PE in June 2019. Hughes conducted a calendar audit of Plaintiff’s case contacts without notice to Plaintiff. Plaintiff was advised by Chief Deputy Parole Administrator Jacqueline Waltman (“Waltman”) not to hire a particular CDCR job applicant because Waltman “want[ed] a black female” for the position. On October 25, 2019, Plaintiff was issued a meritless Employee Counseling Chrono. Waltman told Plaintiff that she is not promotable because she files EEO complaints and instructed Plaintiff to keep her mouth shut. Waltman also accused Plaintiff of having threatened her subordinates into writing letters of recommendation for her and asked Plaintiff when she planned to retire.

On May 13, 2021, Plaintiff filed a Second Amended Complaint (“SAC”), asserting causes of action against Defendants CDCR, Thompson, Waltman, Hughes, Karen Thacker (“Thacker”) and Does 1-50 for:

1.                  Racial Discrimination

2.                  Racial Harassment

3.                  Retaliation

4.                  Disability Discrimination

5.                  Failure to Engage in the Good Faith Interactive Process

6.                  Failure to Prevent Discrimination/Harassment & Retaliation

7.                  Defamation

On October 8, 2021, the court sustained CDCR’s demurrer to the second-fifth causes of action in Plaintiff’s SAC without leave to amend.

On April 6, 2022, Plaintiff dismissed the second and seventh causes of action, without prejudice, as to the individual defendants only.

A Case Management Conference is set for September 28, 2023.

Legal Standard

The rules governing demurrers are generally applicable to a motion for judgment on the pleadings. (Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4^th 995, 999; Code Civ. Proc., § 438, subd. (d) [“The grounds for motion. . . shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice. Where the motion is based on a matter of which the court may take judicial notice. . ., the matter shall be specified in the notice of motion, or in the supporting points and authorities, except as the court may otherwise permit”].)

A motion by a plaintiff may only be made on the grounds “that the complaint states facts sufficient to constitute a cause or causes of action against the defendant and the answer does not state facts sufficient to constitute a defense to the complaint.” (Code Civ. Proc., § 438, subd. (c)(1)(A).) A motion by a defendant may only be made on the grounds that (1) “[t]he court has no jurisdiction of the subject of the cause of action alleged in the complaint” or (2) “[t]he complaint does not state facts sufficient to constitute a cause of action against that defendant.” (Code Civ. Proc., § 438, subd. (c).)

Although a nonstatutory motion “may be made at any time either prior to the trial or at the trial itself” (Stoops v. Abbassi (2002) 100 Cal.App.4th 644, 650 [quotation marks and citation omitted]), a statutory motion cannot be made after entry of a pretrial conference order or 30 days before the initial trial date, whichever is later, unless the court otherwise permits. (Code Civ. Proc., § 438, subd. (e).)

Discussion

CDCR moves the court for judgment on the pleadings as to the second through fifth causes of action and the allegations of retaliation and harassment in the sixth cause of action of Plaintiff’s SAC. [2]

Request for Judicial Notice

The court declines to rule on the merits of CDCR’s Request for Judicial Notice as unnecessary and irrelevant to the disposition of the motion [see below].

Merits

The motion is summarily denied as moot in part (i.e., as to the second through fifth causes of action) and denied in part (i.e., as to the allegations of retaliation and harassment in the sixth cause of action).

CDCR correctly points out that on October 8, 2021 the court sustained CDCR’s demurrer to the second through fifth causes of action as to Plaintiff’s SAC without leave to amend. CDCR, however, does not provide the court with legal authority which would obligate Plaintiff to file a Third Amended Complaint deleting out the second through fifth causes of action under these circumstances; rather, the SAC remains the operative pleading, with the understanding that the court has precluded Plaintiff from pursuing the second through fifth causes of action.

The motion is otherwise denied as improper (i.e., as to the allegations of retaliation and harassment in the sixth cause of action), inasmuch as a motion for judgment on the pleadings does not lie as to part of a cause of action.