Judge: Peter A. Hernandez, Case: 23STCV30171, Date: 2025-01-22 Tentative Ruling
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Case Number: 23STCV30171 Hearing Date: January 22, 2025 Dept: 34
1.
Defendants Robert Luna, County of Los Angeles, Jason Skeen, and Pilar
Chavez’ Demurrer to Plaintiff Shawn O’Donnell’s First and Second Causes of
Action is SUSTAINED.
2.
Defendants Robert Luna, County of Los Angeles, Jason Skeen, and Pilar
Chavez’ Motion to Strike Portions of Plaintiff Shawn O’Donnell’s First Amended Complaint
is GRANTED.
The court will
inquire at the hearing whether leave to amend should be granted.
Background
On December 11, 2023, Plaintiff Shawn O’Donnell
(“Plaintiff”) filed a complaint against Defendants Robert Luna, County of Los Angeles,
Jason Skeen, and Pilar Chavez (“Defendants”) arising from Plaintiff’s
employment with Defendants alleging causes of action for:
1.
Retaliation in Violation of Gov’t Code § 12940,
et seq.;
2.
Harassment in Violation of Gov’t Code § 12940,
et seq.;
3.
Discrimination in Violation of Gov’t Code §
12940, et seq.;
4.
Failure to Prevent Harassment, Discrimination,
and Retaliation in Violation of Gov’t Code § 12940, et seq.;
5.
Whistleblower Retaliation in Violation of Labor
Code § 1102.5;
6.
Violation of Labor Code § 1102; and
7.
Declaratory Judgment and Relief.
On October
1, 2024, Plaintiff filed a First Amended Complaint (“FAC”) against Defendants alleging
causes of action for:
1.
Sexual Harassment in Violation of Gov’t Code §
12940, et seq.;
2.
Racial Harassment in Violation of Gov’t Code §
12940, et seq.;
3.
Sex Discrimination in Violation of Gov’t Code §
12940, et seq.;
4.
Race Discrimination in Violation of Gov’t Code
§ 12940, et seq.;
5.
Disability Discrimination in Violation of Gov’t
Code § 12940, et seq.;
6.
Failure to Engage in Good Faith Interactive
Process in Violation of Gov’t Code § 12940, et seq.;
7.
Failure to Provide Reasonable Accommodation in
Violation of Gov’t Code § 12940, et seq.;
8.
Retaliation in Violation of Gov’t Code § 12940,
et seq.;
9.
Failure to Prevent Harassment, Discrimination,
and Retaliation in Violation of Gov’t Code § 12940, et seq.;
10.
Whistleblower Retaliation in Violation of Labor
Code § 1102.5;
11.
Violation of Labor Code § 1101; and
12.
Violation of Labor Code § 1102.
On November
18, 2024, Defendants filed this Demurrer to Plaintiff’s first and second causes
of action and Motion to Strike. On January 9, 2025, Plaintiff filed
oppositions. On January 14, 2025, Defendants filed a reply.
1. Demurrer
Legal Standard
“The
party against whom a complaint or cross-complaint has been filed may object, by
demurrer or answer as provided in Section 430.30, to the pleading on any one or
more of” various grounds listed in statute. (Code Civ. Proc., § 430.10.)
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 pleading alone, and not the evidence or facts alleged.” (E-Fab,
Inc. v. Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.)
As such, the court assumes the truth of the complaint’s properly pleaded or
implied factual allegations. (Ibid.) The only issue a demurrer is
concerned with is whether the complaint, as it stands, states a cause of
action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.)
Where
a demurrer is sustained, leave to amend must be allowed where there is a
reasonable possibility of successful amendment. (Goodman v. Kennedy
(1976) 18 Cal.3d 335, 348.) The burden is on the plaintiff to show the court
that a pleading can be amended successfully. (Id.; Lewis v. YouTube, LLC
(2015) 244 Cal.App.4th 118, 226.) However, “[i]f there is any reasonable
possibility that the plaintiff can state a good cause of action, it is error to
sustain a demurrer without leave to amend.” (Youngman v. Nevada Irrigation
Dist. (1969) 70 Cal.2d 240, 245).
Discussion
Defendants
demur, pursuant to Code of Civil Procedure section 430.10, subdivisions (e) and
(f), to the first and second causes of action for sexual and racial harassment
in Plaintiff’s FAC, on the basis that Plaintiff fails to state facts sufficient
to constitute causes of action and that they are uncertain.
“The elements [of a sexual
harassment cause of action] are: (1) plaintiff belongs to a protected group;
(2) plaintiff was subject to unwelcome sexual harassment; (3) the harassment
complained of was based on sex; (4) the harassment complained of was sufficiently
pervasive so as to alter the conditions of employment and create an abusive
working environment; and (5) respondeat superior.” (Fisher v. San Pedro
Peninsula Hospital (1989) 214 Cal.App.3d 590, 608.)
Similarly, it is an
unlawful employment practice under FEHA for an employer to harass an employee
because of their age, race, national origin, or disability. (Gov. Code § 12940,
subd. (j)(1).) To establish a prima facie case of harassment, a plaintiff must
show (1) membership in a protected class; (2) that he was subjected to
unwelcome harassment; (3) harassment based on his protected status; (4) that
the harassment unreasonably interfered with his work performance by creating an
intimidating, hostile, or offensive work environment; and (5) defendant is
liable for the harassment. (Thompson v. City of Monrovia (2010) 186
Cal.App.4th 860, 876.)
Harassment involves verbal, physical,
visual and/or sexual conduct that creates a hostile or offensive working
environment. (Cal. Code Regs., tit. 2, § 11019(b).) To establish a hostile work
environment, harassment must be sufficiently severe or pervasive to alter the
conditions of the plaintiff’s employment and create an abusive working
environment. (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 609.)
“The working environment must be evaluated in light of the totality of the
circumstances: ‘whether an environment is “hostile” or “abusive” can be
determined only by looking at all the circumstances. These may include the
frequency of the 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.’ ” (Miller v.
Dept. of Corrections (2005) 36 Cal.4th 446, 462.)
Defendants contend that Plaintiff does
not provide allegations supporting a claim that Plaintiff was sexually harassed
because of his gender or racially harassed because he is white. (Demurrer, at
p. 3.) As to Plaintiff’s first cause of action for sexual harassment,
Defendants argue that Plaintiff fails to allege any interactions with Defendant
Robert Luna (“Luna”) or otherwise indicate that Luna knew Plaintiff. (Id.,
at p. 5.) Defendants also argue that Plaintiff makes a single allegation that
Defendant Pilar Chavez (“Chavez”) showed pictures of her breasts to Plaintiff.
(Id., at p. 3.) Defendants further argue that Plaintiff conclusively
alleges sexual harassment from Defendant Jason Skeen (“Skeen”) although there
are no allegations that the two worked together or any inappropriate
interactions. (Ibid.) As to Plaintiff’s second cause of action for
racial harassment, Defendants argue that there are no allegations regarding
Luna harassing Plaintiff because of his race. (Id., at p. 7.) Defendants
also argue that Skeen is also a white male and there are not allegations
showing that Skeen was racially motivated to harass Plaintiff. (Ibid.)
Lastly, Defendants argue that there is nothing supporting Plaintiff’s claim
that he was harassed by Chavez because Plaintiff is white, and Chavez is
Hispanic. (Ibid.)
In
opposition, Plaintiff points to the allegations made against Luna, Chavez, and
Skeen arguing that these allegations outline a pervasive and targeted campaign
of harassment against Plaintiff with specific incidents of racially and
sexually charged conduct. (Opp., at p. 3.) Plaintiff also contends that in
addition to these allegations, Defendants’ interference with Plaintiff’s career
progression and their consistent refusal to address Plaintiff’s grievances created
a hostile work environment. (Ibid.)
In
reply, Defendants continue to argue that Plaintiff’s FAC is void of sufficient
allegations to establish causes of action for sexual and racial harassment
against Defendants. (Reply, at p. 2.)
The
court finds that Plaintiff’s allegations regarding Luna are insufficient to
state a claim for sexual and racial
harassment. Plaintiff’s FAC does not include any allegations regarding any
direct conduct, interactions, or comments by Luna against Plaintiff involving a
sexual or racial motive. All that Plaintiff alleges is that Luna ordered and
planned for other individuals to harass Plaintiff. This allegation is highly
speculative and does not amount to be sufficiently severe and pervasive to
constitute harassment. Plaintiff must allege facts demonstrating that he was
subjected to offensive comments or other abusive conduct based on a protected
characteristic that was sufficiently severe or pervasive to affect the
conditions of Plaintiff’s employment. (Serri v. Santa Clara Univ. (2014)
226 Cal.App.4th 830, 871.)
Similarly,
Plaintiff’s allegations as to Skeen fail to show any harassing conduct with a
sexual or racial motive. Plaintiff’s allegations as to Skeen focus on the
reasoning behind Plaintiff not being promoted into a higher position. Generally,
negative employment decisions, such as termination or demotion, cannot form the
basis of a hostile environment claim and are suited to a discrimination
claim. Although “some office employment actions done in furtherance of a
supervisor’s managerial role can also have a secondary effect of communicating
a hostile message [,] [t]his occurs when the actions establish a widespread
pattern of bias.” (Roby v. McKesson Corp. (2009) 47 Cal.4th 686,
707-11.) Plaintiff’s
allegations regarding Skeen’s managerial decisions do not show any racial or
sexual bias, and, thus, do not amount to harassment.
Lastly, Plaintiff’s allegations as to Chavez discuss only
isolated comments and interactions. Plaintiff alleges two single incidents with
Chavez. First, Plaintiff claims that Chavez showed Plaintiff photos of herself
and asked Plaintiff to comment on her breasts. (FAC, ¶ 41.) Although Plaintiff adds that Chavez
would call and hug Plaintiff, there is no indication that such interactions
were so severe and pervasive to constitute sexual harassment.
Second, Plaintiff
alleges that on an occasion Chavez stated, “what the fuck, you can’t say hi to me
anymore, what the fuck you think you’re too good for me now, you’re a right
white boy you don’t need the money”. (Ibid.) Harassment that is racially motivated has been defined by
the Court of Appeals of California as conduct, “which may be verbal, physical,
or visual and communicates an offensive message to the¿harassed¿employee,
cannot be occasional, isolated, sporadic, or trivial; rather, the plaintiff
alleging a Fair Employment and Housing Act (FEHA) violation must show a
concerted pattern of¿harassment¿of a repeated, routine or a generalized nature.
(Thompson v. City of Monrovia, 186 Cal. App. 4th 860, 112 Cal. Rptr. 3d
377 (2010)). A single comment by Chavez regarding Plaintiff’s race is
too isolated to sufficiently plead a cause of action for racial harassment.
As such, the court sustains
Defendants’ demurrer to Plaintiff’s first and second causes of action.
2.
Motion to Strike
Legal Standard
Pursuant to Code of Civil Procedure section
436, “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. (b) Strike out
all or any part of any pleading not drawn or filed in conformity with the laws
of this state, a court rule, or an order of the court.” The grounds for a
motion to strike must “appear on the face of the challenged pleading or from
any matter of which the court is required to take judicial notice.” (Code Civ.
Proc., § 437.)
Discussion
Defendants
moves to strike Plaintiff’s request for punitive damages.
Punitive
damages may be recovered upon a proper showing of malice, fraud, or oppression.
(Civ. Code, § 3294(a).) “Malice” is defined as conduct intended to cause injury
to a person or despicable conduct carried on with a willful and conscious
disregard for the rights or safety of others. (Turman v. Turning Point of
Cent. Cal., Inc. (2010) 191 Cal.App.4th 53, 63.) “Oppression” means
despicable conduct subjecting a person to cruel and unjust hardship, in
conscious disregard of the person’s rights. (Ibid.) “Fraud” is an
intentional misrepresentation, deceit, or concealment of a material fact known
by defendant, with intent to deprive a person of property, rights or otherwise
cause injury. (Ibid.) Conclusory allegations, devoid of any factual
assertions, are insufficient to support a conclusion that parties acted with
oppression, fraud, or malice. (Smith v. Superior Court (1992) 10
Cal.App.4th 1033, 1042.)
“In order to survive a motion to
strike an allegation of punitive damages, the ultimate facts showing an
entitlement to such relief must be pled by a plaintiff.” (Clauson v.
Superior Court (1998) 67 Cal.App.4th 1253, 1255.) “In passing on the
correctness of a ruling on a motion to strike, judges read allegations of a
pleading subject to a motion to strike as a whole, all parts in their context,
and assume their truth.” (Ibid.) “In ruling on a motion to strike,
courts do not read allegations in isolation.” (Ibid.) Conclusory
allegations, devoid of any factual assertions, are insufficient to support a
conclusion that parties acted with oppression, fraud or malice. (Smith v. Superior Court (1992) 10
Cal.App.4th 1033, 1042.)
Defendants argue that
Plaintiff fails to show that Luna and Skeen’s conduct was malicious or
oppressive against Plaintiff. (Motion to Strike, at p. 4.) Defendants contend that
the allegations that Plaintiff was not transferred to his desired unit of
assignment and instead was moved to another assignment does not lay enough
grounds for a claim of punitive damages. (Ibid.) Defendants also argue
that Plaintiff’s alleged interactions with Chavez do not indicate that Chavez
acted maliciously towards Plaintiff.
In opposition, Plaintiff
argues that Defendants actions as pled illustrate the wrongful intent to vex,
annoy, and subjected Plaintiff to cruel and unjust hardship in disregard of his
rights. (Opp., at p. 8.)
Here,
there are
no specific allegations of oppression, fraud, or malice beyond the alleged
misconduct by Defendants. Rather, Plaintiff’s FAC only makes generic
allegations that Defendants acted with oppression, fraud, or malice.
Accordingly, Defendants’ motion is granted.
Conclusion
1.
Defendants Robert Luna, County of Los Angeles, Jason Skeen, and Pilar
Chavez’ Demurrer to Plaintiff Shawn O’Donnell’s First and Second Causes of
Action is SUSTAINED.
2.
Defendants Robert Luna, County of Los Angeles, Jason Skeen, and Pilar
Chavez’ Motion to Strike Portions of Plaintiff Shawn O’Donnell’s First Amended
Complaint is GRANTED.
The court will inquire at the hearing
whether leave to amend should be granted.