Anthony Fontanez v. City of Torrance

DEMURRER TO COMPLAINT

 

MOVING PARTY: Defendant City of Torrance

RESPONDING PARTY(S): Plaintiff Anthony Fontanez

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiff Anthony Fontanez, a patrol officer with the Torrance Police Department, was injured in a motor vehicle collision during a police pursuit in 2016.  The injuries caused Plaintiff to be in constant pain and intermittently lose feeling his legs. Plaintiff alleges Defendant City of Torrance  discriminated against Plaintiff because of his physical disability by, among other things, intentionally delaying his disability retirement, forcing him to return to work in the Communications Department, a punitive assignment, imposing working conditions on Plaintiff in the Communications Department which were contrary to Plaintiff’s physician’s express restrictions, denying Plaintiff time off to attend to his wife and son, and terminating Plaintiff’s group medical coverage. 

Plaintiff asserts causes of action for (1) discrimination based on physical disability, (2) harassment based on physical disability, (3) failure to prevent discrimination and retaliation, (4) retaliation, (5) failure to accommodate, (6) failure to engage in interactive process, and (7) associational discrimination. 

Defendant now demurrers to Plaintiff’s second cause of action for harassment based on physical disability. Plaintiff opposed.

TENTATIVE RULING:

Defendant’s Demurrer to the Second Cause of Action is OVERRULED. 

Defendant is ordered to file an Answer to the Complaint within 21-days of this Ruling.

Plaintiff is ordered to give notice, unless waived.

DISCUSSION:

Demurrer to Complaint

I. Meet and Confer

The Declaration of attorney Jeffery E. Stockley reflects that the parties met and conferred.

II. Legal Standard

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.  (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal. App. 4th 1216, 1228.)  In a demurrer proceeding, the defects must be apparent on the face of the pleading or by proper judicial notice.  (CCP § 430.30(a).)  A demurrer tests the pleadings alone and not the evidence or other extrinsic matters.  (SKF Farms v. Superior Court (1984) 153 Cal. App. 3d 902, 905.)  Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.  (Id.)  The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.  (Hahn, 147 Cal.App.4th at 747.)  

III. Analysis

Defendant demurrers to the second cause of action for harassment based on physical disability. (See Gov. Code 12940(j).) Defendant argues Plaintiff has not alleged harassment, but rather, “only commonly necessary personnel management actions, which are excluded from the meaning of harassment as a matter of law.” (Dem. 4: 14-16.) If anything, Defendant argues these allegations support only a discrimination claim, but not one for harassment. Defendant also contends the allegations lack the requisite specificity. 

As alleged in the Complaint, Plaintiff was a patrol officer with the Torrance Police Department since 2008. (Compl. ¶ 12.) “In 2016, Plaintiff was injured in a motor vehicle collision during a police pursuit. Plaintiff’s resulting condition was diagnosed as L5-S1 bilateral pars defect, compressed and bulging discs with height loss, and spinal stenosis with severe compression of L5 nerve roots. Said condition caused Plaintiff to be in constant pain and intermittently lose feeling his legs, which rendered the performance of Plaintiff’s requisite duties as a police officer more difficult.” (Id. ¶ 14.) Plaintiff remained actively employed until February 11, 2021, when he underwent spinal fusion surgery. (Id. ¶ 15.) After surgery, Plaintiff was placed on the following restrictions: “no duty belt, no police duty, no overtime and no graveyard hours.” (Id.) 

In 2021, Plaintiff was assigned to the “Communications Department,” a position viewed as “punitive” among the police force. (Id. ¶ 17.) Plaintiff alleges there existed other light duty assignments available to which the City could have assigned him. (Id.) Despite Plaintiff’s restrictions, the City “assigned Plaintiff to 12.5 hour shifts 4 and sometimes 5 days in a row, forced him to work overtime and assigned him to graveyard shifts for more than one- and one-half years.” (Id. ¶ 18.) 

When Plaintiff’s son was born premature on December 3, 2021, both the child and Plaintiff’s wife faced complications. (Id. ¶¶ 20, 21.) While his wife and child were hospitalized, the “City refused to allow Plaintiff time away from work to visit and care for them.” (Id. ¶ 21.) And after his son was discharged, the “City denied Plaintiff time off to attend his child’s medical appointments.” (Id.) Plaintiff alleges he was “surveilled surreptitiously” by the City while visiting and caring for his son. (Id. ¶ 22.) 

In 2021 and 2022, Plaintiff applied for disability related retirement. (Id. ¶ 16.) Each time, his request was denied because the City “intentionally did not submit the requisite documents. (Id.) Plaintiff also alleges that the City “unlawfully cancelled Plaintiff’s group medical insurance coverage,” which forced Plaintiff “to pay an $1800.00 monthly premium to maintain medical insurance for his family and him.” (Id. ¶ 25.) 

On July 1, 2023, Plaintiff was removed from the Communications Department, after a City retained physician determined that his physical condition was such that he would never return to active duty as a police officer, and he was unfit for a light duty position.” (Id. ¶ 24.) “Plaintiff’s disability related retirement finally was approved in March 2024 retroactive to July 1, 2023.” (Id.)

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.)

Here, for pleading purposes, Plaintiff has adequately alleged that he was harassed based on his physical disability.  In the years following his accident and surgery, Plaintiff alleges the city intentionally delayed his disability retirement, forced him to work in a punitive assignment and in violation of his working restrictions, denied Plaintiff time off to attend to his wife and son, surveilled him, and terminated his group medical coverage. Plaintiff has alleged these facts with the specificity necessary to proceed. Construed liberally and in context, these allegations demonstrate a pattern of pervasive harassment in response to Plaintiff’s disability. 

Defendant contends that none of the alleged action constitute “harassment,” only “personnel management actions.”  On the other hand, they can also be the same, to wit, the “personnel management actions” constituted “harassment” under FEHA. This, however, is ultimately a question of fact that cannot be resolved on demurrer.  

Accordingly, Defendant’s Demurrer to the Second Cause of Action is OVERRULED. 

IT IS SO ORDERED.

Dated:   January 15, 2025 ___________________________________