Judge: Peter A. Hernandez, Case: 24STCV23774, Date: 2025-01-21 Tentative Ruling
Case Number: 24STCV23774 Hearing Date: January 21, 2025 Dept: 34
Defendants City of Torrance and Courtney Vo’s Demurrer
to Plaintiff’s Second Cause of Action is OVERRULED.
Background
On September 13, 2024, Plaintiff Marcus Robert Menzies
(“Plaintiff”) filed a complaint against Defendants City of Torrance (“Torrance”)
and Courtney Vo (“Vo” and collectively with Torrance as “Defendants”) arising
from Plaintiff’s employment with Defendants alleging causes of action for:
1. Discrimination
Based on Physical Disability (Govt. Code §12940(a));
2. Harassment
Based on Physical Disability (Govt. Code §12940(j));
3. Failure
to Prevent Discrimination (Govt. Code §12940(k));
4. Retaliation
(Govt. Code §12940(h));
5. Failure
to Accommodate Physical Disability (Govt. Code §12940 (m)); and
6. Failure
to Engage in a Good Faith Interactive Process (Govt. Code §12940 (n)).
On November
7, 2024, Defendants filed this Demurrer to Plaintiff’s complaint. On December
30, 2024, Plaintiff filed an opposition. On January 6, 2025, Defendants filed a
reply.
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), to
Plaintiff’s second cause of action for harassment
based on a physical disability, on the basis that Plaintiff fails to state facts sufficient to
constitute a cause of action.
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.) 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.
However, “some office employment actions done in furtherance of a supervisor’s
managerial role can also have a secondary effect of communicating a hostile
message. This occurs when the actions establish a widespread pattern of
bias.” (Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 707-11.)
Defendants contend that
the alleged conduct in Plaintiff’s complaint was not severe or pervasive enough
to establish harassment, and that Vo’s conduct constituted commonly necessary
personnel management actions. (Demurrer, at p. 11, 15.)
The complaint alleges
that Plaintiff began working for Defendant Torrance around 2007 as a patrol
officer and remains employed with Defendant Torrance. (Complaint, ¶ 12.) In
March 2020, Plaintiff sustained injuries to his shoulder which Plaintiff
alleges to constitute a physical disability under Government Code section 12926. (Id.,
¶ 14.) On April 29, 2021, Plaintiff underwent surgery for his injuries and was
on medical leave. (Id., ¶ 15.) Plaintiff was also prescribed meloxicam
which causes dizziness and inhibits the ability to operate machinery or a motor
vehicle. (Ibid.) Plaintiff alleges that Defendant Vo repeatedly pressured Plaintiff’s physician
to authorize Plaintiff to return to work threatening that future surgeries
might not be authorized. (Id.,
¶ 16.) Defendant Vo also pressured Plaintiff to return to work by frequent
telephone calls and emails. (Ibid.) In October 2021, Plaintiff’s
physician provided Defendant Vo a return-to-work authorization specifying that
Plaintiff was not to operate machinery or a vehicle while taking meloxicam. (Id.,
¶ 17.) Plaintiff also reminded Defendant Vo that he lived 80 miles away from
his workplace and that it was unsafe for Plaintiff to drive due to his
medication. (Id., ¶ 18.) Plaintiff alleges that Defendant Vo repeatedly
yelled at Plaintiff and told him he had to return to work and would have to
find alternative ways to travel. (Ibid.) Defendant Vo also told
Plaintiff to take his medication after his shift to allow him to drive. (Ibid.)
Plaintiff was then
contacted by scheduling to return to work. (Id., ¶ 19.) Plaintiff
informed scheduling that he was not able to return to work due to his
medication. (Ibid.) In return, scheduling provided Plaintiff a copy of
his return-to-work authorization which had the physician’s note regarding
Plaintiff’s inability to operate machinery or a vehicle due to the meloxicam
redacted with white-out and replaced by a handwritten note stating that
Plaintiff could take his medication after work. (Ibid.) Plaintiff also
alleges that Defendant Vo hired private investigators to surveil Plaintiff. (Id.,
¶ 20.) Plaintiff did not return to work until November 2021 after he stopped
taking his medication working in a light duty position. (Id., ¶ 21.)
Plaintiff continued to be pressured by Defendant Vo to return to his original
position as a patrol officer despite Plaintiff’s disability. (Ibid.) In
March 2022, Plaintiff requested that his physician authorized him to return to
his full duty work fearing that he would be fired. (Id., ¶ 22.) As a
result, Plaintiff experienced significant pain making his job more difficult. (Ibid.)
Plaintiff underwent a second surgery on January 8, 2024 as Plaintiff’s
physician found scar tissue, tears, and calcium deposits in Plaintiff’s
shoulder. (Id., ¶¶ 23-24.)
Although
it is true that many
of Plaintiff’s allegations refer to ordinary workplace decisions and personnel
management actions such as scheduling, Plaintiff does allege that Defendants
deliberately pressured Plaintiff to return to work despite his disability and
physician’s recommendations. Plaintiff’s allegations regarding the redaction of
Plaintiff’s return-to-work authorization, multiple unwanted interactions with Defendant Vo, and clear disregard of
Plaintiff’s disability are clearly beyond the scope of personnel management.
Under Government Code section 12923, “[a] single incident of harassing conduct
is sufficient to create a triable issue regarding the existence of a hostile
work environment if the harassing conduct has unreasonably interfered with the
plaintiff’s work performance or created an intimidating, hostile, or offensive
working environment.” While that standard is couched in summary judgment terms,
the court finds that for purposes of demurrer, these allegations are enough for
harassing conduct. (See Gov. Code, § 12923, subd. (e) [“Harassment cases are
rarely appropriate for disposition on summary judgment”].)
As such, Plaintiff has sufficiently
pled that he is part of a protected class due to his disability, that Plaintiff
was subjected to unwelcomed harassment due to such disability by Defendants,
and that such harassment interfered with Plaintiff’s work performance creating
an adverse work environment. (Complaint, ¶¶ 36-42.)
Defendants’
demurrer
to Plaintiff’s second cause of action is overruled.
Conclusion
Defendants City of Torrance and
Courtney Vo’s Demurrer to Plaintiff’s Second Cause of Action is OVERRULED.