Judge Richard S. Whitney, Case 37-2023-00016017-CU-WT-CTL 2024-03-29 Tentative Ruling

Judge: Richard S. Whitney, Case: 37-2023-00016017-CU-WT-CTL, Date: 2024-03-29 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - March 28, 2024

03/29/2024 10:30:00 AM C-68 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Richard S. Whitney

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Civil - Unlimited Wrongful Termination Demurrer / Motion to Strike 37-2023-00016017-CU-WT-CTL ANTRIM VS COUNTY OF SAN DIEGO [IMAGED] CAUSAL DOCUMENT/DATE FILED:

(1) DEFENDANTS COUNTY OF SAN DIEGO AND TROY BRITT'S DEMURRER TO THE FIRST AMENDED COMPLAINT is SUSTAINED, in part, and OVERRULED, in part.

Plaintiff Whitney Antrim's request for judicial notice is DENIED.

Plaintiff failed to demonstrate how the was relevant to any material issue in this case for the purpose of demurrer. (Naranjo v. Doctors Medical Center of Modesto, Inc. (2023) 90 Cal.App.5th 1193, 1205.) Defendant County of San Diego ('County') and Troy Anthony Britt ('Britt') (collectively 'Defendants') demurrer to Plaintiff's first amended complaint ('FAC') as follows: (1) the first through third causes of action on the bases that they are time barred by the three year statute of limitation; (2) the sixth cause of action for failure to prevent discrimination on the basis that Plaintiff fails to allege sufficient facts supporting the underlying discrimination and harassment claims; and (3) plaintiff's seventh cause of action for constructive termination is not based on a statute, as required to impose liability on a public entity, and she also fails to allege facts demonstrating she timely presented a government claim.

Defendants' also argue that Plaintiff fails to allege sufficient facts to support each cause of action.

Plaintiff opposed the Defendants demurrer.

At this stage of the case, the Court is required to liberally construe the allegations of the complaint, with a view to substantial justice between the parties. (Code Civ. Proc., 452.) In ruling on a demurrer, the court is to consider the legal sufficiency of an opponent's pleading based on defects that appear either on the face of the pleading or from matters subject to judicial notice. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The court should sustain a demurrer only if the facts alleged in the complaint, liberally construed, are insufficient to constitute any cognizable cause of action. (Kiseskey v. Carpenters' Trust for So. California (1983) 144 Cal.App.3d 222, 228.) Statute of Limitation Defendants argue that Plaintiff's first through third causes of action are time barred by the three year statute of limitation and that the continuing violation doctrine should not apply.

Under FEHA, a court must liberally construe the limitation period to promote resolution of potentially meritorious claims. (Romano v. Rockwell Internat., Inc. (1996) 14 Cal.4th 479, 494.) But 'permitting an employee indefinitely to delay the filing of a lawsuit...would be contrary to the FEHA's statute of Calendar No.: Event ID: TENTATIVE RULINGS

3093073 54 CASE NUMBER: CASE TITLE: ANTRIM VS COUNTY OF SAN DIEGO [IMAGED] 37-2023-00016017-CU-WT-CTL limitations and potentially prejudicial to the employer.' (Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, 822–823.) Under the continuing violation doctrine adopted by the California Supreme Court, an employer may be liable for discriminatory conduct occurring outside the limitations period if the series of discriminatory conduct are closely related enough to constitute a continuing violation. (Id. at 823.) This occurs when the conduct: (1) is sufficiently similar in kind that they tend to connect them in a continuing violation; (2) occurs with reasonable frequency; and (3) has not acquired a degree of permanency-i.e., it is clear that further efforts at informal conciliation to end the harassment is futile. (Id. at 823 [adopting a modified version of the test articulated in Berry v. Board of Sup's of L.S.U. (5th Cir. 1983) 715 F.2d 971, 981].) Accordingly, when 'a temporally related and continuous course of conduct has been established, it is appropriate to apply the continuing violation doctrine to harassment claims.' (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1058 [emphasis added].) As alleged in the FAC, Plaintiff cannot qualify under the continuing violation doctrine because the alleged conduct that is outside the limitation period is not similar in kind to the subsequent conduct and did not reoccur with any frequency after 2017. Plaintiff's allegations in the FAC describe two discrete episodes: (1) sexual harassment by Ford and refusal to take action by Britt in 2016-2017; and (2) retaliation by Britt and others starting in 2019 for Plaintiff's participation in an investigation and complaints about Britt, not based on Plaintiff's sex or gender.

Accordingly, the alleged discriminatory conduct is not sufficiently close enough in time or nature to constitute a continuing violation to warrant an equitable exception to statute of limitation.

First Cause of Action To establish a claim of sexual discrimination under FEHA a plaintiff must allege facts supporting the elements of a prima facie case including that 'it is more likely than not that the employer has taken an adverse employment action based on a prohibited category. (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 214; Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 355.) As discussed above, Plaintiff's allegations of sexual harassment by Ford are time barred. Plaintiff's non-time barred claims pertain to claims that she was retaliated against by Britt following her involvement in an investigation into a third-party's claims of harassment, not based on her sex or gender.

As such, Defendants demurrer as to the first cause of action is sustained.

Second and Third Causes of Action- Hostile Work Environment and Sexual Harrasment In support of Plaintiff's second and third causes of action, she alleges that she was harassed by a manager-level employee via inappropriate comments, innuendos, unwanted following, persistent leering or staring, and other actions and this created a hostile work environment. (FAC, ¶¶ 31-32.) Plaintiff further alleges that she was subject to sexual harassment by her supervisor Ford. (FAC, ¶¶ 39-44.) These allegations however are also based on conduct that was alleged to have occurred in 2016-2017.

(FAC ¶¶15a-c) Further, Plaintiff's factual allegations in the FAC contradict this assertion and demonstrate that it was not based on her sex or gender, but her participation in an investigation.

As such, Plaintiff's second and third cause of action are time-barred and fail to allege facts sufficient to establish that the non-time barred conduct was based on Plaintiff's sex.

Accordingly, Defendants' demurrer is sustained as to the second and third causes of action.

Fourth Cause of Action – Harassment Calendar No.: Event ID: TENTATIVE RULINGS

3093073 54 CASE NUMBER: CASE TITLE: ANTRIM VS COUNTY OF SAN DIEGO [IMAGED] 37-2023-00016017-CU-WT-CTL Defendants argue that since Plaintiff's fourth cause of action is based partially on allegations of the time barred claims it is subject to demurrer and Plaintiff fails to allege facts supporting that the non-time barred claims.

To establish a claim of harassment based on sex under FEHA a plaintiff must allege facts supporting the elements of a prima facie case including that: (1) she is a female; (2) she was subjected to unwelcome harassment; (3) the harassment was based on her status as female; (4) the harassment unreasonably interfered with her work performance by creating an intimidating, hostile, or offensive work environment; and (5) defendants are liable. (Galvan v. Dameron Hospital Assn. (2019) 37 Cal.App.5th 549, 563.) A demurrer cannot be granted unless it disposes of an entire cause of action. (PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1682.) Acting as a potential witness in a FEHA action is considered protected activity. (Steele v. Youthful Offender Parole Bd. (2008) 162 Cal.App.4th 1241, 1255.) Here, while Plaintiff's allegations include those relating to the 2016-2017 harassment, it also includes allegations against Britt that would not have been time barred (FAC, ¶ 52.) As such, it is not subject to demurrer on the basis of being time barred, since it would not dispose of the entire cause of action.

While Plaintiff makes bare allegations that Britt 'marginalized Plaintiff compared to other similarly situated male employees' and treated her 'more critically than her male counterparts' these are contradicted by her own factual allegations which demonstrate that the alleged conduct was based on her participation in the investigation, not her sex. (FAC, ¶¶ 15d-v). Plaintiff, however, has also alleged that the harassment was based on her protected activity of participating in the investigation.

Accordingly, Plaintiff has stated a cause of action for harassment based on her involvement in the investigation into possible sexual harassment and Plaintiff's fourth cause of action is not subject to demurrer.

Sixth Cause of Action - Failure to Prevent Discrimination, Harassment and Retaliation Defendants' demurrer argues that Plaintiff fails to state a claim for failure to prevent discrimination and harassment because the underlying claims fail.

For an employer to be liable for failing to prevent discrimination, harassment or retaliation, a plaintiff must establish that they were discriminated, harassed or retaliated against. (Dickson v. Burke Williams, Inc. (2015) 234 Cal.App.4th 1307, 1314.) As discussed above, Plaintiff has sufficiently alleged a cause of action for discrimination and retaliation based on her involvement in an investigation into sexual harassment. As such, Plaintiff has sufficiently alleged a cause of action for failure to prevent discrimination, harassment and retaliation.

Defendants demurrer as to the sixth cause of action is overruled.

Seventh Cause of Action – Constructive Termination of Employment Defendants argue that the Plaintiff common law cause of action for constructive termination of employment against the County are barred because it is not based on statute and that Plaintiff does not allege facts showing she timely presented a government claim.

In California, government entities cannot be held directly liable for common law torts unless the claim is based on a specific statute imposing liability. (Eastburn v. Regional Fire Protection Authority (2003) 31 Cal.4th 1175, 1183; Gov. Code § 815.) The Tort Claims Act is intended to limit not expand the rights of plaintiffs in suits against he government. (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1127.) Defendants' argument that Plaintiff failed to comply with the Tort Claims Act lacks merit, because Exhibit A attached to the FAC is Plaintiff's original FEHA complaint that sufficiently identifies the claims now Calendar No.: Event ID: TENTATIVE RULINGS

3093073 54 CASE NUMBER: CASE TITLE: ANTRIM VS COUNTY OF SAN DIEGO [IMAGED] 37-2023-00016017-CU-WT-CTL alleged in the FAC. (See Garcia v. Los Angeles Unified School Dist. (1985) 173 Cal.App.3d 701, 711.) Plaintiff has not alleged a statutory basis imposing liability for constructive termination of employment against a public entity.

As such, Plaintiff's seventh cause of action is subject to demurrer.

Plaintiff is granted 10 days leave to amend her complaint.

(2) DEFENDANT PUBLIC DEFENDER ASSOCIATION'S DEMURRER TO COMPLAINT is off calendar.

Defendant PUBLIC DEFENDER ASSOCIATION failed to file a proof of service of the demurrer and Plaintiff did not oppose the demurrer. The demurrer is off calendar based on Defendant PUBLIC DEFENDER ASSOCIATION's failure to file a proof of service.

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