Judge: Robert B. Broadbelt, Case: BC604336, Date: 2023-03-14 Tentative Ruling

Case Number: BC604336    Hearing Date: March 14, 2023    Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

MOVING PARTY:                 Defendant City of Los Angeles         

RESPONDING PARTY:       Plaintiffs Johneen Jones, Kristine Kenney, Kristine Klotz, Debra Kane, and Robert Plourde

Motion for Judgment on the Pleadings

The court considered the moving, opposition, and reply papers filed in connection with this motion.

BACKGROUND

Plaintiffs Johneen Jones, Kristine Kenney, Kristine Klotz, Debra Kane, and Robert Plourde filed this FEHA action on December 15, 2015, against defendants City of Los Angeles, Los Angeles Police Department, Commander Regina Scott, Deputy Chief Bob Green, Assistant Chief Jorge Villegas, Captain Lillian Carranza, and Commander Sean Malinowski.[1]

Defendant City of Los Angeles (“Defendant”) now moves the court for an order granting its motion for judgment on the pleadings as to (1) the first cause of action for discrimination as to plaintiff Robert Plourde (“Plourde”), and (2) the fourth cause of action for retaliation in violation of Labor Code section 1102.5 as to plaintiffs Plourde and Kristine Klotz (“Klotz”).

REQUEST FOR JUDICIAL NOTICE

The court grants defendant City of Los Angeles’s request for judicial notice.  (Evid. Code, § 452, subds. (c), (d).)

The court grants plaintiffs Kristine Klotz and Robert Plourde’s request for judicial notice.  (Evid. Code, § 452, subds. (c), (d).)

DISCUSSION

The court denies Defendant’s motion for judgment on the pleadings as to plaintiff Plourde’s first cause of action for discrimination because it states facts sufficient to constitute a cause of action since it does not “appear clearly and affirmatively that, upon the face of the complaint, the right of action is necessarily barred.”  (Code Civ. Proc., § 438, subd. (c)(1)(B)(ii); Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 881.)

In its motion for judgment on the pleadings, Defendant contends that plaintiff Plourde’s first cause of action for disability discrimination and retaliation is time barred because (1) the Complaint alleges that Plourde was discriminated against on the basis of his disability in September 2012, mid-2013, and when he was reassigned to the homicide table in Foothill Division (elsewhere alleged to have occurred in August of 2013); (2) Plourde did not file his amended complaint with the Department of Fair Employment and Housing until September 22, 2015; and (3) “a plaintiff cannot recover for acts occurring more than one year before the filing of the DFEH complaint….”  (Compl., ¶¶ 62-67, 33; Def. RJN, Ex. C; Jumaane v. City of Los Angeles (2015) 241 Cal.App.4th 1390, 1402.) 

However, the first cause of action is not solely based on Plourde’s allegations of disability discrimination.  While Plourde does allege that he was discriminated against on the basis of his disability (Compl., ¶¶ 62-66), Plourde also alleges (1) in the body of the Complaint, that he “was the subject of discrimination and harassment based upon his race, ethnicity, color and association with a protected class” (Compl., ¶ 34), and (2) in the allegations made in support of the first cause of action for discrimination specifically, that Plourde “is a white male, who associated with the white female[] Plaintiffs” and that Defendant discriminated against all plaintiffs, including Plourde, “on the basis of their sex, gender, association with a protected class, disability, and race” (Compl., ¶¶ 82-83).  Defendant has not argued that Plourde’s allegations relating to the alleged discrimination on the other grounds are time barred.  Because a motion for judgment on the pleadings “does not lie to a portion of a cause of action[,]” the court denies Defendant’s motion.  (PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1682 [standard on demurrer]; Fire Ins. Exchange v. Superior Court (2004) 116 Cal.App.4th 446, 452 [“A motion for judgment on the pleadings is the functional equivalent of a general demurrer”].) 

The court denies Defendant’s motion for judgment on the pleadings as to plaintiffs Plourde and Klotz’s fourth cause of action for retaliation in violation of Labor Code section 1102.5 because it states facts sufficient to constitute a cause of action since it does not “appear clearly and affirmatively that, upon the face of the complaint, the right of action is necessarily barred.”  (Code Civ. Proc., § 438, subd. (c)(1)(B)(ii); Lockley, supra, 91 Cal.App.4th at p. 881.)

As to plaintiff Klotz, in addition to other alleged retaliatory acts, the Complaint alleges that, in or around April of 2015, “Klotz was pressured to leave her division to make room for one of the Agitators that harassed and discriminated against her in the previous year at Foothill[,]” and when she refused, the Commander of Bureau threatened her.  (Compl., ¶ 57.)  Klotz alleges that she “was the target for reporting gender and race based discrimination and harassment, reporting violations of the Denise Moe Case and for refusing to follow the Chief’s request in 2012 to violate the law.”  (Ibid.) 

In reply, Defendant appears to argue that Klotz’s entire cause of action is barred on the ground that her cause of action began to accrue in 2012, and the allegations in the Complaint do not establish that the continuing violation doctrine applies.  (Reply, p. 8:7-17; Compl., ¶ 71.)  The court disagrees.  Even if the court concluded that Klotz did not plead facts establishing that the retaliatory acts taken against her constitute a continuing violation so as to toll the accrual of her retaliation cause of action as to all retaliatory acts alleged in the Complaint, Klotz has properly pleaded (1) an act of retaliation occurring in April of 2015 when she was pressured to leave her division, (2) that she filed her government claim within six months of that act, on or about September 25, 2015, such that (3) the entire fourth cause of action alleged by Klotz is not necessarily barred on the face of the Complaint.  (Compl., ¶¶ 57, 21; Fire Ins. Exchange v. Superior Court, supra, 116 Cal.App.4th at p. 452.)

Similarly, Plourde alleges that (1) on or around April 13, 2015, an announcement went out stating that everyone must report to the Pacific Conference room on April 14, 2015, and nobody was to report to the squad room; (2) on April 14, 2015, Plourde and Klotz were separately informed that they were not allowed to report to the Pacific Conference room, and were required to report to the squad room; (3) Plourde and Klotz reported to the squad room on that date and were told that they had to “transfer equal amounts on each side[;]” and (4) Plourde reported that his transfer was discriminatory and retaliatory on April 20, 2015, and July 7, 2015.  (Compl., ¶¶ 55-56, 58.)  Thus, the court reads the Complaint to allege that Plourde was also transferred in April of 2015, which Plourde has alleged to be a retaliatory act.  (Compl., ¶ 58.)  Plourde filed his amended complaint with the Department of Fair Employment and Housing on September 22, 2015, within six months of this retaliatory act.  The court therefore finds that the entire fourth cause of action alleged by Plourde for retaliation is not necessarily barred on the face of the Complaint and matters judicially noticed.  (Fire Ins. Exchange v. Superior Court, supra, 116 Cal.App.4th at p. 452.)

ORDER

The court denies City of Los Angeles’s motion for judgment on the pleadings.

The court orders plaintiffs Robert Plourde and Kristine Klotz to give notice of this ruling.

IT IS SO ORDERED.

DATED:  March 14, 2023

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court