Judge: Richard L. Fruin, Case: 24STCV24250, Date: 2025-03-11 Tentative Ruling



Case Number: 24STCV24250    Hearing Date: March 11, 2025    Dept: 15

# 10   TENTATIVE RULING                9:15 a.m,, Tuesday, March 11, 2025

MYESHA BROWN v. LOS ANGELES WORLD AIRPORTS, et al. [24STCV24250]

 

DEMURRER TO DEFENDANT’S ANSWER OF PLAINTIFF MYESHA BROWN

 

MEET AND CONFER: [DEFECTIVE] (Plaintiff’s counsel declares Defendant’s counsel inconsistently responded to attempts to meet and confer, and thus, parties are not in compliance with CCP § 430.41. (Loveland Decl., ¶¶ 4-12.))

 

TIMELINE: alleges sexual battery and FEHA harassment and retaliation

 

7/6/2023: Plaintiff Myesha Brown begins her employment as a Vocational Worker in the Maintenance Services Division of the City of Los Angeles, Dept. of Airports (“City”).

 

7/22/2023: Plaintiff is directed to meet a supervisor, Defendant Antonio Olatunji (“Olatunji”), to sign paperwork. Olatunji gives Plaintiff an unwanted hug, grabs and holds Plaintiff, makes various inappropriate comments to Plaintiff, and grabs Plaintiff’s breasts and buttocks.

 

          As a result of this incident, Plaintiff takes a five-day medical leave, but Plaintiff’s supervisor marks her absence as “no call, no show.”

 

8/2023: Plaintiff is transferred out of Olatunji’s terminal, after a month of Plaintiff’s requests to transfer.

 

12/8/2023: Plaintiff is terminated. Later, Plaintiff receives a letter claiming her termination was due to “failure to meet department standards.”

 

9/18/2024: Plaintiff files the Complaint, alleging causes of action for:

 

1.   Sexual Battery in Violation of Civ. Code § 1708.5 & Pen. Code § 243.4

2.   FEHA Sexual Harassment (Hostile Work Environment)

3.   FEHA Retaliation

4.   Retaliation in Violation of Civ. Code § 1102.5

5.   FEHA Failure to Prevent Discrimination, Harassment, & Retaliation

 

11/8/2024: City files its Answer. Service of the Answer is properly effectuated

on Plaintiff on December 30, 2024.

 

2/5/2025: Plaintiff files this Demurrer, followed by City’s Opposition (2/26/2025) and Plaintiff’s Reply (3/4/2025).

 

TENTATIVE RULING: DEMURRER OF PLAINTIFF MYESHA BROWN is OVERRULED in part, and SUSTAINED with LEAVE TO AMEND in part.

 

DEMURRER

 

Plaintiff demurs to all forty-two affirmative defenses set forth in City’s Answer on the grounds that City fails to state facts sufficient to constitute each defense. (CCP, § 430.20(a); Timberidge Enterprises, Inc. v. City of Santa Rosa (1978) 86 Cal.App.3d 873, 880 (a general demurrer may be made on the ground that an answer does not state facts sufficient to constitute a defense.)) “Generally speaking, the determination whether an answer states a defense is governed by the same principles which are applicable in determining if a complaint states a cause of action.” (South Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732.) “[T]he defect in question need not appear on the face of the answer. The determination of the sufficiency of the answer requires an examination of the complaint because its adequacy is with reference to the complaint it purports to answer.” (Id., at 733.)

 

A.   Plaintiff’s Demurrer is Timely

 

As a preliminary matter, City argues this Demurrer was not timely filed. In general, a plaintiff must file a demurrer to the Answer “within 10 days after service of the answer to his pleading.” (Code Civ. Proc., § 430.40(b).) Here, Defendant’s counsel declares that the Answer was filed and electronically sent to Plaintiff by electronic mail on November 8, 2024, a deadline agreed upon by the parties. (Silva Decl., 3, Exh. 1.) However, the Court finds this attempted e-service was not sufficient to effectuate proper service of the Answer on Plaintiff, as Plaintiff’s counsel had not yet consented to electronic service and never received actual notice of the email due to two misspelled email addresses. (Loveland Decl., 2; Silva Decl., Exh. 2.) Defendant is incorrect that parties need not “agree” to accept service electronically. Rather, service by e-mail or electronic service is authorized with conditions, such as express consent or court order. (See Code Civ. Proc., § 1010.6; Cal. Rules of Court, rule 2.251(a).)

 

On December 26, 2024, Plaintiff’s counsel informed Defendant’s counsel that the Answer had not been received and agreed to accept email service of the documents. (Silva Decl., Exh. 3.) Thereafter, Defendant’s counsel again sent the Answer by electronic service on December 30, 2024. (Loveland Decl., 3.) Accordingly, the Court finds Defendant properly served the Answer on Plaintiff’s counsel as of December 30, 2024. (Code Civ. Proc., § 1010.6(a)(4) (service of electronically served documents is deemed effective on the day of transmission, if served on a court day.)) As the parties were unable to coordinate meet and confer efforts due to the holidays, Plaintiff’s counsel sought an automatic 30-day extension for Plaintiff’s demurrer filing deadline on January 6, 2025, extending the deadline to February 5, 2025. (Id., 7.) Under Code Civ. Proc., § 430.41(a)(2), “[i]f the parties are not able to meet and confer at least 5 days before the date the responsive pleading is due, the demurring party shall be granted an automatic 30-day extension of time within which to file a responsive pleading, by filing and serving, on or before the date on which a demurrer would be due, a declaration stating under penalty of perjury that a good faith attempt to meet and confer was made and explaining the reasons why the parties could not meet and confer.” As Plaintiff’s Demurrer was filed and served on February 5, 2025, the Court finds this Motion is timely. Even assuming arguendo that this Motion is untimely, the Court has broad discretion to consider the Motion and finds good cause to do so based on the above-mentioned facts. (See Cal. Rules of Court, rule 3.1300(d); See also Mackey v. Bd. of Trustees of California State Univ. (2019) 31 Cal.App.5th 640, 657.)

 

B.    1st Affirmative Defense: Failure to State a Claim

 

The Court OVERRULES Plaintiff’s Demurrer to City’s 1st affirmative defense. City is not required to allege additional facts with respect to this defense, because Plaintiff has the burden of proving each of her claims. (See Baker v. Sudo (1987) 194 Cal.App.3d 936, 943, fn. 7 (“Here, the [defendants] pled failure “to state facts sufficient to constitute a cause of action” as an affirmative defense in their answer to Baker's complaint. This was sufficient.”))

 

C.   19th and 25th Affirmative Defenses: Claims Brought in Bad Faith and Uncertainty

 

The Court SUSTAINS Plaintiff’s Demurrer to City’s 19th and 25th affirmative defenses. “Affirmative defenses must not be pled as ‘terse legal conclusions,’ but ‘rather ... as facts ‘averred as carefully and with as much detail as the facts which constitute the cause of action and are alleged in the complaint.’’” (Quantification Settlement Agreement Cases (2011) 201 Cal.App.4th 758, 812–813, quoting FPI Development, Inc., supra, 231 Cal.App.3d at 384.) With respect to the 19th affirmative defense, City does not allege any facts as to why Plaintiff’s claims are unreasonable, filed in bad faith, or frivolous, and as to why an award of attorney’s fees and costs is justified. With respect to the 25th affirmative defense, the Court finds “uncertainty” is more properly brought as a procedural objection to the pleadings, rather than a substantive defense. (CCP, § 430.20.) Further, City’s Opposition does not respond directly to Plaintiff’s Demurrer to either the 19th or 25th affirmative defenses. Thus, the 19th and 25th affirmative defenses are insufficiently pled.

 

D.   2nd Affirmative Defense: Avoidable Consequences Doctrine

 

The Court SUSTAINS Plaintiff’s Demurrer to City’s 2nd affirmative defense. The Court agrees that City fails to allege any facts identifying the internal preventative and corrective remedies or internal complaint procedures to which the defense refers. This defense contains only “terse legal conclusions” about the “reasonableness” of City and Plaintiff’s conduct. (Quantification, supra, 201 Cal.App.4th at 812–813.) Thus, the 2nd affirmative defense is insufficiently pled.

 

E.    3rd Affirmative Defense: Consent or Voluntary Participation Conduct

 

The Court SUSTAINS Plaintiff’s Demurrer to City’s 3rd affirmative defense. The Court agrees that City fails to allege any facts identifying how or in what way Plaintiff consented to or initiated the sexual battery alleged in the Complaint. The defense contains only the “terse legal conclusion” that Plaintiff consented to or voluntarily participated in the alleged conduct. (Quantification, supra, 201 Cal.App.4th at 812–813.) Further, City’s Opposition does not respond directly to Plaintiff’s Demurrer to the 3rd affirmative defense. Thus, the 3rd affirmative defense is insufficiently pled.

 

F.    4th and 5th Affirmative Defenses: Legitimate Business Reasons for Employment Decisions and Same Decision

 

The Court SUSTAINS Plaintiff’s Demurrer to City’s 4th and 5th affirmative defenses. The Court agrees that City fails to allege facts identifying the legitimate, business-related reasons for City’s alleged adverse employment actions against Plaintiff or that City’s decision would have been the same even without improper motive. Even further, City’s Opposition does not respond directly to Plaintiff’s Demurrer to the 4th affirmative defense. To the extent that City addresses the 5th affirmative defense, City effectively admits that future investigation and discovery is necessary to reveal facts supporting this defense. Thus, the 4th and 5th affirmative defenses are insufficiently pled.

 

G.   6th Affirmative Defense: Managerial Discretion

 

The Court SUSTAINS Plaintiff’s Demurrer to City’s 6th affirmative defense. With respect to Plaintiff’s FEHA claims, the common-law managerial privilege does not apply. (See e.g. State Dept. of Health Services v. Superior Court (2003) 31 Cal.4th 1026, 1049.) With respect to Plaintiff’s sexual battery claim, the Court agrees that City fails to allege facts identifying how City’s exercise of “managerial discretion” in relation to this claim was done for “just and proper,” “legitimate,” or “good faith” reasons or any other facts relevant to the “circumstances existing at the time.” Even further, City’s Opposition does not respond directly to Plaintiff’s Demurrer to the 6th affirmative defense. Thus, the 6th affirmative defense is insufficiently pled.

 

H.   7th Affirmative Defense: After-Acquired Evidence

 

The Court SUSTAINS Plaintiff’s Demurrer to City’s 7th affirmative defense, as it does not identify any new matter or presently known factual basis. To the extent City acquires additional facts during discovery, the Answer should be amended to allege new defenses at that time.

 

I.     8th Affirmative Defenses: Statute of Limitations

 

The Court SUSTAINS Plaintiff’s Demurrer to City’s 8th affirmative defense. “There are two ways to properly plead a statute of limitations: (1) allege facts showing that the action is barred, and indicating that the lateness of the action is being urged as a defense and (2) plead the specific section and subdivision.” (Martin v. Van Bergen (2012) 209 Cal.App.4th 84, 91, citing Brown v. World Church (1969) 272 Cal.App.2d 684, 691; See also Code Civ. Proc., § 458.) Here, City neither sets forth facts indicating that the action is barred, nor cites a specific statutory section (instead, City includes a range of various possible applicable statutes). As this defense lacks the requisite factual and legal specificity, the 8th affirmative defense is insufficiently pled.

 

J.     9th and 15th Affirmative Defenses: Failure to Exhaust Administrative Remedies and Failure to Comply with the Governmental Claims Act

 

The Court SUSTAINS Plaintiff’s Demurrer to City’s 9th and 15th affirmative defenses. With respect to the 9th affirmative defense, City alleges Plaintiff unreasonably failed to take advantage of the “preventative and corrective opportunities and other internal remedies.” These allegations lack sufficient factual support, based on the same reasoning addressed above with respect to the 2nd affirmative defense. Moreover, the 15th affirmative defense is merely based on the “terse legal conclusion” that Plaintiff violated a statute, without alleging any facts to support how Plaintiff violated the Act, or even which section of the Act was violated. Further, City fails to raise any factual allegations that contradict Plaintiff’s allegations pertaining to the filing of her CRD Complaint and Government Tort Claim. (Compl., 35.) Accordingly, the 9th and 15th affirmative defenses are insufficiently pled.

 

K.   16th Affirmative Defense: Failure to Mitigate

 

The Court SUSTAINS Plaintiff’s Demurrer to City’s 16th affirmative defense. The Court agrees that City fails to allege any facts supporting the conclusion that Plaintiff failed to mitigate her damages. As the 16th affirmative defense is based solely on a single “terse legal conclusion,” this defense is insufficiently pled.

 

L.    18th, 26th, 29th, 30th, 31st, and 32nd Affirmative Defenses: Contributory/Comparative Negligence, Superseding/Intervening Conduct of Others, No Proximate Cause, Apportionment of Fault, Negligence of Others, and Acts/Omissions of Others

 

The Court SUSTAINS Plaintiff’s Demurrer to City’s 18th, 26th, 29th, 30th, 31st, and 32nd affirmative defenses. The Court agrees that these defenses are devoid of any factual allegations indicating that Plaintiff failed to exercise reasonable care or proximately caused her own injuries, or that Plaintiff’s alleged injuries were caused by the negligence of others. As the 18th, 26th, 29th, 30th, 31st, and 32nd affirmative defenses are based solely on “terse legal conclusions” unsupported by facts, these defenses are insufficiently pled.

 

M.  24th Affirmative Defense: Arbitration

 

The Court SUSTAINS Plaintiff’s Demurrer to City’s 24th affirmative defense. The Court agrees that City fails to allege sufficient facts to support the existence of the purported arbitration agreement between the parties. Thus, the 24th affirmative defense is insufficiently pled.

 

N.   27th and 28th Affirmative Defenses: Not Reasonably Foreseeable and No Control

 

The Court SUSTAINS Plaintiff’s Demurrer to City’s 27th and 28th affirmative defenses. The Court agrees that these defenses are devoid of facts which would demonstrate City is not vicariously liable for Defendant Olatunji’s conduct or that City lacked control over the other Defendants. City’s allegations regarding foreseeability and control are mere legal conclusions, not facts. Thus, the 27th and 28th affirmative defenses are insufficiently pled.

 

O.   33rd and 34th Affirmative Defenses: Unfitness and Lack of Notice/Actual Knowledge

 

The Court SUSTAINS Plaintiff’s Demurrer to City’s 33rd and 34th affirmative defenses. “An employer who knows or should have known of unlawful harassment and retaliation, and fails to take immediate and appropriate corrective action, may be liable for the resulting damages, pursuant to Government Code section 12940, subdivision (j)(1).” (Thompson v. City of Monrovia (2010) 186 Cal.App.4th 860, 880.) Even with respect to City’s alleged vicarious liability, “traditional common law principles of agency and respondeat superior supply the proper analytical framework under FEHA.” (Patterson v. Domino's Pizza, LLC (2014) 60 Cal.4th 474, 499.) In other words, there is no actual knowledge or actual notice requirement for Plaintiff’s claims. Even if City had alleged facts to support City’s lack of “notice,” such allegations would be immaterial to defending Plaintiff’s claims. Accordingly, the 33rd and 34th affirmative defenses are insufficiently pled.

 

P.    35th and 36th Affirmative Defenses: Outside the Course and Scope of Employment and Vicarious Liability

 

The Court SUSTAINS Plaintiff’s Demurrer to City’s 35th and 36th affirmative defenses, for the same reasons discussed above with respect to the 27th, 28th, 33rd, and 34th affirmative defenses. Further, the Court finds the 36th affirmative defense (vicarious liability) is duplicative of the 35th affirmative defense. (Chee v. Amanda Goldt Property Management (2006) 143 Cal.App.4th 1360, 1375 (“vicarious liability for torts is imposed by operation of law upon employers for acts of their employees within the course and scope of employment…”)) Accordingly, the 35th and 36th affirmative defenses are insufficiently pled.

 

Q.   39th and 40th Affirmative Defenses: Lack of Knowledge as to Emotional Distress and Reasonable Person Standard

 

The Court SUSTAINS Plaintiff’s Demurrer to City’s 39th and 40th affirmative defenses. It is unclear how these defenses are material to defending this action, as neither City nor Plaintiff has alleged facts indicating that Plaintiff had a “peculiar susceptibility” to injury or suffered unreasonably severe distress compared to a reasonable person. City’s conclusory allegations do not add any factual support demonstrating the sufficiency of these defenses, such that Plaintiff lacks sufficient notice to prepare to respond. Thus, the 39th and 40th affirmative defenses are insufficiently pled.

 

R.   37th and 38th Affirmative Defenses: At-Will Employment and Same Decision (Lab. Code § 1106.)

 

The Court SUSTAINS Plaintiff’s Demurrer to City’s 39th and 40th affirmative defenses. First, as a matter of public policy, Plaintiff’s alleged at-will employment status does not preclude Plaintiff from bringing her statutory and FEHA claims. (McGrory v. Applied Signal Technology, Inc. (2013) 212 Cal.App.4th 1510, 1514 (“As an at-will employee, Employee was subject to termination by Employer for no reason or almost any reason, except for a reason that violates a fundamental public policy recognized in a constitutional or statutory provision.”)) Second, the Court finds City’s 38th affirmative defense is duplicative of both the 5th and 37th affirmative defenses, as it does not allege an independent basis under which City may avoid liability. Even further, City’s Opposition does not respond directly to Plaintiff’s Demurrer to either the 39th or 40th affirmative defenses. Accordingly, the 39th and 40th affirmative defenses are insufficiently pled.

S.    42nd Affirmative Defense: No Private Right of Action

 

The Court SUSTAINS Plaintiff’s Demurrer to City’s 42nd affirmative defense, as it relies on an incorrect assertion of law. While there is a private right of action for failure to prevent discrimination, harassment, and retaliation in violation of FEHA (Lab. Code § 12940(k)), “[a]n actionable claim under section 12940, subdivision (k) is dependent on a claim of actual discrimination.” (Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1021; See also Kelley v. Conco Companies (2011) 196 Cal.App.4th 191, 208 (courts have required actual discrimination or harassment to support claims for failure to prevent discrimination or harassment.)) Here, as Plaintiff alleges causes of action for both FEHA Harassment and FEHA Retaliation, these underlying causes of action, if proven, can sufficiently support a claim under § 12940(k). Thus, the 42nd affirmative defense is insufficiently pled.

 

T.   10th, 11th, 12th, and 13th Affirmative Defenses: Waiver, Estoppel, Laches, and Unclean Hands

 

The Court SUSTAINS Plaintiff’s Demurrer to City’s 10th, 11th, 12th, and 13th affirmative defenses. The Court agrees that these defenses are completely devoid of facts which would demonstrate that the equitable doctrines of waiver, estoppel, laches, or unclean hands apply. Even further, City’s Opposition effectively admits that discovery is necessary to reveal facts supporting these defenses. As the Answer presently fails to include any factual allegations concerning why City contends that these doctrines apply, the Court finds the 10th, 11th, 12th, and 13th affirmative defenses are insufficiently pled.

 

U.   14th, 17th, 23rd, and 41st Affirmative Defenses: Speculative Recovery, Offset of Damages, Workers’ Compensation Exclusivity and Preemption, and Compliance with Applicable Law

 

The Court SUSTAINS Plaintiff’s Demurrer to City’s 14th, 17th, 23rd, and 41st affirmative defenses. First, the 14th affirmative defense (speculative recovery) is essentially duplicative of the 25th affirmative defense (uncertainty), and is more properly brought as a procedural objection than a substantive defense. (CCP, § 430.20.) Second, the 17th affirmative defense fails to allege any facts indicating that Plaintiff has received compensation or other benefits relevant to the calculation of Plaintiff’s potential damages. Third, to the extent Plaintiff is alleging damages for her FEHA causes of action, the California Workers’ Compensation Act does not provide an exclusive remedy or preclude an employee from pursuing FEHA remedies. (See e.g. Fretland v. County of Humboldt (1999) 69 Cal.App.4th 1478, 1485.) On the other hand, workers compensation may be the exclusive remedy for a battery committed by a co-worker, unless the employer directly engages in or ratifies the assault. (Id., at 1489–1490.) Here, City fails to allege any facts in the Answer to contradict Plaintiff’s allegations that City ratified Defendant Olatunji’s conduct. (Compl., ¶ 68.) More facts are necessary to demonstrate that the Workers’ Compensation Act precludes City’s liability for Plaintiff’s 1st cause of action. Finally, the 41st affirmative defense is vague and speculative, as City fails to identify any specific provision of the Government Code that City allegedly violated in “good faith” or any facts demonstrating that City had “reasonable grounds” to believe its conduct was in compliance with applicable law. Even further, City’s Opposition fails to directly address the 23rd and 41st affirmative defenses and to the extent City addresses the 14th and 17th affirmative defenses, City merely states that these defenses “apply to Plaintiff’s damages claims” without anything more. Accordingly, the Court finds 14th, 17th, 23rd, and 41st are insufficiently pled.

 

V.   20th, 21st, and 22nd Affirmative Defenses: Sovereign Immunity, Discretionary Immunity, and Immunity from Exemplary Damages

 

The Court SUSTAINS Plaintiff’s Demurrer to City’s 20th, 21st, and 22nd affirmative defenses. The Court agrees that these defenses are completely devoid of facts which would demonstrate how these bases for immunity are applicable. As the Answer presently fails to include any factual allegations concerning why City contends that these doctrines apply, the Court finds the 20th, 21st, and 22nd affirmative defenses are insufficiently pled.

 

In sum, City’s inclusion of all forty-two affirmative defenses in its Answer despite its lack of knowledge of the necessary facts to support such assertions is premature. City has no right to file an Answer with forty-two affirmative defenses unsupported by the presently available facts. To the extent that additional facts are revealed during discovery, City may amend its answer to add new factual allegations to support its affirmative defenses. As discussed above, affirmative defenses based merely on “terse legal conclusions” are not sufficient. (Quantification, supra, 201 Cal.App.4th at 812–813.) Therefore, while Plaintiff’s Demurrer to the 1st affirmative defense is OVERRULED, the Demurrer as to all remaining affirmative defenses is SUSTAINED with LEAVE TO AMEND.

 

Plaintiff Myesha Brown to serve notice of ruling.  This tentative ruling (“TR”) shall be the order of the Court unless changed at the hearing and shall by this reference be incorporated into the Minute Order. TR emailed to counsel on 3/11/25 at 8:30 a.m.