Judge Randolph M. Hammock, Case 20STCV24083 2023-01-30 Tentative Ruling

Plaintiff Jane Doe alleges that while a recruit at the Los Angeles Sheriff’s Department Academy, Defendant Officer Joel Marquez, an Academy instructor and Inglewood police officer, engaged in sexual misconduct toward her. Defendant also allegedly used his influence and power over Plaintiff to intimidate and retaliate against her. Plaintiff brings causes of action against Marquez, the County of Los Angeles, and the City of Inglewood for (1) FEHA discrimination, (2) FEHA harassment, (3) FEHA retaliation, (4) Bane Act (Civ. Code § 52.1), (5) battery, (6) negligence, and (7) negligent hiring, supervision, or retention.

Generally speaking, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) Plaintiff must demonstrate this possibility at the hearing. If she doesn’t, no leave to amend will be given. [FN 1]

The Declaration of Attorney Avery Canty reflects that she “met and conferred with Plaintiff's counsel, Lucas Rowe, regarding the instant Motion for Judgment on the Pleadings.” (Canty Decl. ¶ 2.) Plaintiff, however, apparently disputes the sufficiency or substance of this meet and confer. (See Rowe Decl. ¶¶ 3, 4.) Be that as it may, the court finds the requirement is satisfied.

The rules applicable to demurrers also apply to motions for judgment on the pleadings. (County of Orange v. Association of Orange County Deputy Sheriffs (2011) 192 Cal.App.4th 21, 32.) A motion for judgment on the pleadings is properly granted when the “complaint does not state facts sufficient to constitute a cause of action against that defendant.” (Code Civ. Proc., § 438, subd. (c)(1)(B)(ii).) The grounds for the motion must appear on the face of the challenged pleading or from matters that may be judicially noticed. (Code Civ. Proc., § 438, subd. (d).) The trial court must accept as true all material facts properly pleaded, but does not consider conclusions of law or fact, opinions, speculation, or allegations contrary to law or facts that are judicially noticed. (Stevenson Real Estate Services, Inc. v. CB Richard Ellis Real Estate Services, Inc. (2006) 138 Cal.App.4th 1215, 1219-20.) “A motion for judgment on the pleadings 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.)

To establish a prima facie case of FEHA discrimination, a plaintiff must provide evidence that “(1) he was a member of a protected class, (2) he was qualified for the position he sought or was performing competently in the position he held, (3) he suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some other circumstance suggests discriminatory motive.” (Dinslage v. City & Cty. of San Francisco (2016) 5 Cal. App. 5th 368, 378.)

Defendant argues Plaintiff has failed to allege that she suffered an adverse employment action, as the “Complaint does not list a single incident where she was reprimanded, demoted, denied promotion, fired, or otherwise faced adverse employment actions.” (Dem. 14: 15-18.)

Plaintiff alleges that “Marquez remarked on Plaintiff’s appearance in front of the group, said that she looked like a cat, and said that he would call her ‘‘kitty cat.’” (TAC ¶ 43(a).) Defendant also called her “sweetie” at work. (Id.) During classroom instruction, Marquez “ma[de] a point to inform the class, including Plaintiff, that he was ‘single’ and ‘had no baggage.’” (Id.) “As a result of Marquez’s behavior, Plaintiff’s new name at the Academy was Kitty Cat and Marquez was known as her boyfriend.” (Id.) Marquez “continually singled Plaintiff out in class,” and engaged in conduct “so conspicuous and inappropriate that Plaintiff’s classmates remarked about it.” (43(b).) Marquez allegedly used his sexual relationship with Plaintiff as a form of blackmail over her. (Id.)

Plaintiff further alleges that “[o]ne or more employees at [the County] posted Plaintiff’s picture on Instagram. They edited a picture of Plaintiff in Deputy Sheriff’s uniform, with a big slogan across her chest that says, ‘How to get a Drill Instructor Fired.’” (Id. ¶ 48.) Plaintiff alleges this damaged her “reputation in the Department, to the detriment of her career and promotional prospects.” (Id.) “Other rumors about Plaintiff and Marquez also spread in the Department,” and [t]he Department did nothing to stop that.” (Id.) This resulted in anxiety, stress, humiliation, and nightmares, which ultimately forced Plaintiff “to take long and unpaid leave to heal.” (Id.)

Adverse employment actions are not limited to ultimate actions such as termination or demotion. There is an adverse employment action if [name of defendant] has taken an action or engaged in a course or pattern of conduct that, taken as a whole, materially and adversely affected the terms, conditions, or privileges of [name of plaintiff]’s employment. An adverse employment action includes conduct that is reasonably likely to impair a reasonable employee’s job performance or prospects for advancement or promotion. However, minor or trivial actions or conduct that is not reasonably likely to do more than anger or upset an employee cannot constitute an adverse employment action.

Thus, while it is true that Plaintiff has not alleged an adverse employment action as plain as a firing or demotion, she has alleged a course or pattern of conduct that materially and adversely affected the privileges of her employment, including the potential for promotion.

In so finding, this court also notes that “ ‘[b]ecause the FEHA is remedial legislation,” the court “must construe the FEHA broadly, not ... restrictively.” (Vernon v. State of California (2004) 116 Cal. App. 4th 114, 123.) Thus, reading the Complaint “liberally and in context,” the court concludes Plaintiff has sufficiently pled that (1) she was a member of a protected class, (2) that she was performing competently in her position, (3) that she suffered an adverse employment action, and (4) a circumstance suggesting discriminatory motive. (Taylor, supra, 144 Cal. App. 4th at 1228.)

To establish a FEHA claim for harassment, a plaintiff must show that “(1) she is a member of a protected class; (2) she was subjected to unwelcome harassment; (3) the harassment was based on her protected status; (4) the harassment unreasonably interfered with her work performance by creating an intimidating, hostile, or offensive work environment; and (5) defendants are liable for the harassment.” (Galvan v. Dameron Hosp. Assn. (2019) 37 Cal. App. 5th 549, 563.)

“Actionable harassment consists of more than “annoying or ‘merely offensive’ comments in the workplace,” and it cannot be “occasional, isolated, sporadic, or trivial; rather, the employee must show a concerted pattern of harassment of a repeated, routine, or a generalized nature.” (Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 283.) Harassment “must be assessed from the ‘perspective of a reasonable person belonging to [same protected class as] the plaintiff.’ ” (Cornell v. Berkeley Tennis Club, (2017) 18 Cal. App. 5th 908, 940.)

Defendant makes a series of arguments, including that “Plaintiff does not allege what the rumors were or how they relate to her protected characteristic, her gender. Plaintiff does not allege that the any of this conduct was committed by a supervisor. Plaintiff does not allege that the County knew about this conduct or that the County should have known about this conduct Plaintiff does not allege that she reported the alleged conduct and, as such, does not allege how the County could have either taken immediate and appropriate corrective action or that the County failed to take such action regarding actions by a nonsupervisory employee.” (Dem. 15: 16-22.) Defendant also argues the alleged facts supporting harassment were merely “personnel management decisions.” (Dem. 16: 3.)

In reiterating those allegations alleged in support of the retaliation claim, discussed above, Plaintiff alleges “Marquez’s wrongful animus towards Plaintiff on account of her protected status (gender) was made unambiguous by his conduct towards Plaintiff,” and “took place on a daily and uninterrupted basis.” (TAC ¶ 81.) Plaintiff further alleges that “Defendants [County] and Inglewood knew, or should have known, of these wrongful actions by their supervisor-employee Marquez.” (Id.)

Plaintiff alleges that “(1) she is a member of a protected class; (2) she was subjected to unwelcome harassment; (3) the harassment was based on her protected status; (4) the harassment unreasonably interfered with her work performance by creating an intimidating, hostile, or offensive work environment; and (5) defendants are liable for the harassment.” (Galvan, supra, 37 Cal. App. 5th at 563.) Thus, for pleadings purposes, these allegations are sufficient to support a claim for harassment. [FN 2]

“[T]o establish a prima facie case of retaliation under the FEHA, a plaintiff must show (1) he or she engaged in a ‘protected activity,’ (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer's action.” (Cornell v. Berkeley Tennis Club (2017) 18 Cal. App. 5th 908, 942.) “[T]he elements of such a claim are substantially the same as those for disparate treatment except that instead of having to show that the action was motivated by animus toward the plaintiff as a member of the protected class, the plaintiff must show that the motive was retaliatory.” (Id. at 941-42.)

Defendant argues that Plaintiff “does not allege any facts that she made any complaints regarding Defendant Marquez or her coworkers prior to this lawsuit”; “does not allege the County had any knowledge of this post or the alleged rumors or that she complained about these rumors”; and does not “plead any facts supporting an adverse employment action.” (Dem. 16: 16-23.)

Plaintiff alleges that she “reported or resisted any form of discrimination or harassment” and “participated as a witness in a discrimination or harassment complaint” when questioned by a Sheriff’s department investigator. (TAC 90.) Allegedly in response, Defendant County “subjected Plaintiff to the following adverse employment actions as a result: (1) asked impermissible non-job-related questions; (2) denied any employment benefit or privilege; (3) denied hire or promotion; (4) denied or forced to transfer; (5) denied work opportunities or assignments; (6) forced to quit; or (7) terminated.” (TAC 89.) Finally, this court again finds that Plaintiff has pled an adverse employment action. Thus, Plaintiff has stated a claim for FEHA retaliation.

Under the Bane Act, if a person interferes “by threat, intimidation, or coercion,” or attempts to do so, with any individual’s exercise or enjoyment of rights secured by the Constitutions or laws of the United States or California, the individual may bring a civil action for damages and other relief. (CCP § 52.1, subds. (b) & (c).)

As this court found when ruling on the Demurrers of Defendants City of Inglewood and Marquez, “threatening or committing violent acts” is a required element of the claim under the Bane Act. (See Doe v. State of California (2017) 8 Cal. App. 5th 832, 842 [“[t]o prevail on a cause of action under Civil Code section 52.1, the plaintiff must show that the defendant interfered with or attempted to interfere with the plaintiff's legal right by threatening or committing violent acts; See also CACI 3066 [requiring that defendant make threats of violence against plaintiff].)

Plaintiff alleges “that Marquez had actual knowledge that he was infected with chlamydia, and knowingly infected Plaintiff with same without the knowledge or consent of Plaintiff.” (TAC ¶ 24.) But Marquez's behavior, Defendant argues, “was unquestionably not an act within the scope of any employee's duties or an outgrowth of the job.” (Dem. 20: 26-27.)

Government Code § 815(a) states: “Except as otherwise provided by statute: (a) a public entity is not liable for an injury arise out of an act or omission of the public entity or a public employee or any other person." On such exception is that “[a] public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would, apart from this section, have risen to a cause of action against that employee or his personal representative." (Gov. Code § 815.2(a).)

Under the doctrine of respondeat superior, an employer may be held vicariously liable for torts committed by an employee within the scope of employment. [Citation.] (Mary M. v. City of Los Angeles (1991), 54 Cal. 3d 202, 208). “A risk arises out of the employment when ‘in the context of the particular enterprise an employee’s conduct is not so unusual or startling that it would seem unfair to include the loss resulting from it among other costs of the employer's business. [Citations.] In other words, where the question is one of vicarious liability, the inquiry should be whether the risk was one ‘that may fairly be regarded as typical of or broadly incidental’ to the enterprise undertaken by the employer. [Citation.]’ ” (Id., citing Perez v. Van Groningen & Sons, Inc., 41 Cal.3d at p. 968). Even tortious conduct that violates an employee’s official duties, does not benefit the employer, and is willful or malicious in nature may be within the scope of employment. (Id.) Ordinarily, the determination whether an employee has acted within the scope of employment presents a question of fact; it becomes a question of law, however, when “the facts are undisputed and no conflicting inferences are possible.” (Id. at 213).

In Mary M. v. City of Los Angeles, a city police officer, who was in uniform and driving a city-issued black-and-white vehicle, pulled the plaintiff over and subjected her to a field sobriety test. (54 Cal. 3d at 207). Instead of placing her under arrest, the officer drove her home, where he raped her. (Id.) The victim then brought a civil suit against the officer and his employer. (Id.) The jury entered a verdict in the victim’s favor and made a special finding that the officer acted within the scope of his employment. (Id.) The appeals court reversed. On appeal to the California Supreme Court, the court reversed the lower Court’s ruling, holding that when a police officer on duty misuses his official authority by raping a woman whom he has detained, the public entity that employs him can be held vicariously liable. (Id. at 221). The court explained:

Here, [the officer] was acting within the scope of his employment when he detained plaintiff for erratic driving, when he ordered her to get out of her car and to perform a field sobriety test, and when he ordered her to get in his police car. Then, misusing his authority as a law enforcement officer, he drove her to her home, where he raped her. When plaintiff attempted to resist [the officer’s] criminal conduct, he continued to assert his authority by threatening to take her to jail. Viewing the transaction as a whole, it cannot be said that, as a matter of law, [the officer] was acting outside the scope of his employment when he raped plaintiff.

In Farmers Ins. Group v. Santa Clara (1995) 11 Cal.4th 992, the Supreme Court addressed an employee’s “scope of employment” in the context of the Tort Claims Act. There, three female deputy sheriffs brought a federal court action for sexual harassment against a male deputy sheriff, his employer (the county), and others. (Id. at 999). The county refused to defend and indemnify the male deputy sheriff. (Id.) A jury found in favor of all three women and awarded damages against the county to each of them. (Id.) After their government claims were rejected, the male deputy sheriff sought indemnity from the county and others for the amount the insurer had paid in settlement and in defense of the federal action. The trial court granted summary judgment for the county, finding that the deputy sheriff's conduct was outside the scope of his employment as a matter of law. The Court of Appeal reversed, finding that the standard for scope of employment had been met. (Id.)

On appeal to the Supreme Court, the Court reversed, holding that the sheriff’s conduct was outside the scope of employment. (Id. at 1019). The guard’s acts “were motivated for strictly personal reasons unrelated to the guarding of inmates or the performance of any other duty of a deputy sheriff at a county jail. Furthermore, [the guard’s] misconduct was not reasonably necessary to his comfort, convenience, health, and welfare while at work. Nor was it precipitated by a work-related dispute over the performance of his duties or those of his victims.” (Id. at 1007–08). The Court distinguished the case from Mary M., explaining:

[T]he work-related authority of a supervisor over a trainee employee in a county sheriff's department is in no way comparable to the extraordinary power and authority that police officers exercise over members of the public. As emphasized in Mary M., police officers occupy a unique position of trust in our society. They are given the authority to detain, to arrest and to use deadly force if necessary. When officers abuse their authority by committing crimes against members of the community, they violate the public trust and may erode the community's confidence in the integrity of its police force. (54 Cal.3d at pp. 206-207.) Plainly there is no parallel between the supervisory authority in the instant case and the formidable, official authority at issue in Mary M.

Here, the TAC alleges that Marquez was one of Plaintiff’s supervisors during her training at the LASD Academy (TAC at ¶ 22); that Marquez introduced himself to Plaintiff while on duty (Id.); that Marquez used his position of authority to compel Plaintiff to be in his presence for the purpose of developing a sexual relationship with her (¶ 42-43); that he coerced Plaintiff using advice, answers, and assistance to advance Plaintiff’s training at the Academy (¶ 4, 33); that he eventually coerced Plaintiff into having sexual relations (¶ 35, 38, 43); and that these sexual relations resulted in Marquez infecting Plaintiff with Chlamydia. (¶ 109.)

As this court also noted in ruling on the previous demurrers, the allegations here differ significantly from the unique and narrow Mary M. scenario. Plaintiff does not allege that she was acting as a civilian or that she was detained by Marquez prior to the sexual assault. Rather, the allegations are premised on Marquez’s abuse of his authority over a trainee as a Drill Sergeant for the Los Angeles County Sheriff’s Department.

The facts here are also readily distinguishable from those in Rodgers v. Kemper Construction Co. (1975) 50 Cal. App. 3d. 608, the case on which Plaintiff relies. There, a jury found a Defendant employer liable in respondeat superior where two construction employees were involved in an after-hours physical altercation with the Defendants while working on the same job site. The appeals court found there was substantial evidence to impose liability on the employer under respondeat superior. (Id. at 617.) In doing so, it rejected the defendant’s argument that respondeat superior could not apply because “the assault occurred after [the aggressors] had completed their work shift and (b) the assault was the result of personal malice unrelated to the work.” (Id. at 619.)

The court explained: “it was neither unusual nor unreasonable for [the victims] to be on the job site at the time the incident occurred. Their continued presence after completion of their work shift was “conceivably” of some benefit to [employer]. It was a convenience to Kemper to be able to recruit additional help by simply contacting employees remaining in or about the job site.” (Id. at 621.) Moreover, “there was substantial evidence that the after-hours social activity in and about the dry house—talking and drinking beer—was with the express or implied permission of the employer and was a customary incident of the employment relationship.” (Id.) There was also evidence “that the dispute which was the proximate cause of the assault arose out of the employment. The initial conflict resulted from [the victim’s] request for a ride on Rodgers' bulldozer.” (Id. at 621-22.)

Unlike in Rodgers, there are no allegations here that the alleged incident occurred at or near the work site, or that the incident bears any relationship to the employer. Indeed, this scenario falls comfortably within the purview of Farmers Ins. Group in that Marquez’s acts “were motivated for strictly personal reasons” and “not reasonably necessary to his comfort, convenience, health, and welfare while at work.” (11 Cal.4th 992 at 1007-08.) As the Farmers Court relevantly stated, “the work-related authority of a supervisor over a trainee employee in a county sheriff's department is in no way comparable to the extraordinary power and authority that police officers exercise over members of the public.” Accordingly, the court again finds that Plaintiff has failed to plead facts demonstrating that Marquez’s conduct fell within the scope of his employment with the County. (Id. at 1012.)

Defendant first argues that Plaintiff has not identified a statutory basis for this claim. However, as noted in this court’s last ruling on the Inglewood’s demurrer, in C.A. v. William S. Hart Union High School Dist., the Supreme Court concluded that the “plaintiff's theory of vicarious liability for negligent hiring, retention and supervision is a legally viable one” under Government Code section 815.2. (C.A. v. William S. Hart Union High Sch. Dist. (2012) 53 Cal. 4th 861, 865.) The court reasoned that “[i]f a supervisory or administrative employee of the school district is proven to have breached that duty by negligently exposing plaintiff to a foreseeable danger of molestation by his guidance counselor, resulting in his injuries, and assuming no immunity provision applies, liability falls on the school district under section 815.2.” (Id.) Plaintiff relies on section 815.2 here. Though the case here is not completely analogous, for purposes of an MJOP, it is sufficient.

The next issue is whether the claim is adequately pled. “Negligence liability will be imposed on an employer if it ‘knew or should have known that hiring the employee created a particular risk or hazard and that particular harm materializes.’” (Phillips v. TLC Plumbing, Inc. (2009) 172 Cal.App.4th 1133, 1139.) Defendant contends that Plaintiff “makes conclusory statements that Defendant knew or should have known” about Marquez’s propensity, but “does not plead facts of actual or constructive knowledge that the County knew of past incidents of unlawful conduct.” (Dem. 23: 26-28.)

The TAC alleges the County “knew or should have known that Marquez was or became unfit or incompetent and that this unfitness or incompetence created a particular risk to others,” and “knew or should have known that Marquez was subjecting trainees under his supervision to his sexual demands as their superior officer and supervisor, and that Marquez was an illegal drug abuser.” (TAC 147.)

The only allegation pertaining to the County’s knowledge is that “[a]nother drill instructor warned Marquez to stay away from Plaintiff out of concern for her because of the drill instructor’s knowledge of Marquez’s conduct and tendencies.” (TAC ¶ 31.) There are other conclusory allegations that “other instructors, including those who outrank Marquez at the Academy, have had knowledge of his sexually predatory nature and sexual misconduct towards female trainees for years.” (Id.) At some point prior “Marquez took a female trainee of his to a party, in an openly romantic capacity, that was attended by multiple Los Angeles County Sheriff’s Deputies. Marquez’s habit of romantically pursuing his students was no secret.” (Id.)

Thus, the TAC merely recites general elements of a claim for negligent hiring, supervision, or retention, but without specific allegations to support such a claim. Without more, these allegations are insufficient to plead that the county “knew or should have known” that Marquez was unfit for his position.

Judge of the Superior Court

FN 1- This court previously sustained Defendant Inglewood’s Demurrer to the Fourth, Fifth, Sixth, and Seventh causes of action without leave to amend. (See Minute Ruling & Final Ruling, 06/01/2022.) As the MJOP to these causes of action is now granted for similar reasons, the court is also inclined to deny leave to amend. Be that as it may, Plaintiff will be afforded the opportunity at the hearing to explain why a different result is warranted as to this Defendant to these specific causes of action.

FN 2- The specific factual details supporting these allegations can easily be obtained via discovery. If no such adequate facts exist, then the Defendant is free to file the appropriate motion for summary judgment or adjudication.

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept49@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.