Judge Teresa A. Beaudet, Case Number: 21STCV24062, Date: 2024-02-21 Tentative Ruling

On October 3, 2023, Plaintiff Marita Valdez (“Plaintiff”) filed this action against Defendants Gregory Nicolaysen, a Professional Law Corporation and Gregory Nicolaysen (jointly, “Defendants”). The Complaint alleges causes of action for (1) hostile work environment harassment in violation of FEHA, and (2) failure to prevent harassment in violation of FEHA.

Defendants now demur to both causes of action of the Complaint and move to strike portions of the Complaint. Plaintiff opposes both.[1]

The Court grants Defendants’ Request for Judicial Notice No. 1 as to “[t]he fact that the Criminal Justice Act is a federal statute codified in 18 U.S.C. 27 3006A.” The Court denies Defendants’ Request for Judicial Notice Nos. 2 and 3, and notes the links provided state “Page Not Found.”

The Court grants Defendants’ Request for Judicial Notice No. 5 only as to the existence of Exhibit A, and grants Defendants’ Request for Judicial Notice No. 9 only as to the existence of Exhibit E.

The Court denies Defendants’ Request for Judicial Notice Nos. 4, 6, 7, 8, and 10.

In the Complaint, Plaintiff alleges that she was “a Criminal Justice Act (‘CJA’) paralegal working under and providing services to Nicolaysen - a CJA Panel Attorney, and the Nicolaysen Law Firm.” (Compl., ¶ 10.)

“From January 2022 through March 2022, Nicolaysen sent Valdez several unsolicited text messages discussing his desire for ‘Armenian hookers’, ‘concubines’ or ‘prostitutes.’ Nicolaysen made these sexual comments not only in text messages, but also in person while Nicolaysen and Valdez met for work-related purposes.” (Compl., ¶ 13.) “On one other occasion Nicolaysen physically touched Valdez on her arm and back which resulted in Valdez visibly flinching from discomfort. Valdez did not welcome or solicit this physical touching.” (Compl., ¶ 14.) Plaintiff alleges that “[a]s the months went on, Nicolaysen continued to send Valdez increasingly derogatory and sexually harassing text messages.” (Compl., ¶ 15.)

“Nicolaysen’s text messages also began to suggest that Valdez only work on cases assigned to Nicolaysen and that Valdez work exclusively for Nicolaysen.” (Compl., ¶ 17.) Plaintiff alleges that “[f]inally, when the sexually harassing communications started to create a toxic working environment, Valdez withdrew from Nicolaysen’s cases and ceased her paralegal work for Nicolaysen to her financial detriment.” (Compl., ¶ 19.)

In the demurrer, Defendants first assert that the allegations of the first and second causes of action fail to establish an employer-employee relationship.

“a male supervisor employed by a franchisee allegedly subjected a female…subordinate to sexual harassment while they worked together at the franchisee's pizza store.” In Patterson, “[t]he complaint stated several causes of action. The first three counts invoked the California Fair Employment and Housing Act (FEHA), and alleged sexual harassment, failure to take reasonable steps to avoid harassment, and retaliation for reporting harassment. ((See Gov. Code, § 12900 et seq.)…Otherwise, the complaint asserted common law counts for intentional infliction of emotional distress, assault and battery, and constructive termination against public policy under FEHA.” (Id. at p. 480.) Defendants note that the Patterson Court stated, “[e]ssential to plaintiff’s statutory claims is the existence of ‘an employment relationship.’” (Id. at p. 499.)

As set forth above, Plaintiff alleges that “Valdez was a Criminal Justice Act (‘CJA’) paralegal working under and providing services to Nicolaysen - a CJA Panel Attorney, and the

Nicolaysen Law Firm.” (Compl., ¶ 10.) Defendants contend that “[b]y alleging that plaintiff and defendant were court-appointed under the CJA, the Complaint on its face admits that no employer-employee relationship existed between the parties.” (Demurrer at p. 8:16-19.) But the Complaint does not appear to allege that “plaintiff and defendant were court-appointed under the CJA,” as Defendants contend. (Demurrer at p. 8:16.)

Defendants also contend that “[u]nder the CJA system in federal court, court appointed attorneys do not employ the court appointed paralegals who assist in criminal cases. They are each independent professionals who provide services to, and are paid through, the court. In order for plaintiff to work on a case as a paralegal, it is necessary for the CJA attorney to apply to the court to get plaintiff appointed.” (Demurrer at pp. 8:22-9:2.) In support of this assertion, Defendants cite to Exhibit “A” to Defendants’ Request for Judicial Notice, a document titled “United States District Court Central District of California CACD Auth Form – Paralegal.” But the Court does not see how this document shows that “no employer-employee relationship existed between the parties,” as Defendants contend. (Demurrer at p. 8:17-19.)[2]

Moreover, Plaintiff cites to Tenet Healthsystem Desert, Inc. v. Blue Cross of California (2016) 245 Cal.App.4th 821, 836, where the Court of Appeal noted that “although the existence of a document, such as a document recorded in the official records of a government body, may be judicially noticeable, the truth of statements contained in the document and their proper interpretation are not subject to judicial notice.” (Emphasis in original.) Defendants appear to request that the Court take judicial notice of the truth of statements contained in the exhibits attached to Defendants’ Request for Judicial Notice. Defendants also appear to request that the Court interpret the documents attached to Defendants’ Request for Judicial notice to reach a conclusion regarding the alleged employment relationship.

In addition, Plaintiff notes in the opposition that her first cause of action for hostile work environment harassment is alleged pursuant to Government Code section 12940, subdivision (j). Under Government Code section 12940, subdivision (j)(1), “[i]t is an unlawful employment practice…(j)(1) For an employer, labor organization, employment agency, apprenticeship training program or any training program leading to employment, or any other person, because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, reproductive health decisionmaking, or veteran or military status, to harass an employee, an applicant, an unpaid intern or volunteer, or a person providing services pursuant to a contract.” (Emphasis added.) Plaintiff notes that the Complaint alleges that “Plaintiff was an employee and/or providing services under a contract to Defendants.” (Compl., ¶ 23.)
Defendants also assert in the demurrer that “the first and second causes of action are deficient on their face because the allegations are self-contradictory on the element of an employer-employee relationship.” (Demurrer at p. 10:8-10.)

Defendants point to paragraph 17 of the Complaint, which alleges that “Nicolaysen’s text messages also began to suggest that Valdez only work on cases assigned to Nicolaysen and that Valdez work exclusively for Nicolaysen.” (Compl., ¶ 17.) Defendants contend that “Par 17 is an admission that plaintiff worked for other CJA attorneys; thus, there was no employer-employee relationship with defendant.” (Demurrer at p. 10:20-21.) But Plaintiff does not allege that she “worked for other CJA attorneys.” As discussed, Plaintiff alleges that she “was a Criminal Justice Act…paralegal working under and providing services to Nicolaysen - a CJA Panel Attorney, and the Nicolaysen Law Firm.” (Compl., ¶ 10.) Moreover, as noted by Plaintiff, “Defendants fail to explain…how Plaintiff working for another employer somehow means Defendants are not Plaintiff’s employer.” (Opp’n at p. 7:22-25.)

Defendants also point to paragraph 19, which alleges that “[f]inally, when the sexually harassing communications started to create a toxic working environment, Valdez withdrew from Nicolaysen’s cases and ceased her paralegal work for Nicolaysen to her financial detriment.” (Compl., ¶ 19.) Defendants contend that “[t]he statement, ‘Valdez withdrew from Nicolaysen’s cases’, is an admission that plaintiff operated as an independent service provider and thus contradicts the notion of an employer-employee relationship.” (Demurrer at p. 11:6-9.) But again, Plaintiff does not allege that she “operated as an independent service provider,” as Defendants contend.

In light of the foregoing, the Court does not find that Defendants have shown that the allegations of the first and second causes of action “fail to establish an employer-employee relationship.” (Demurrer at p. 8:5-6.)

Next, Defendants assert that “[a]n essential element of the FCA is that ‘plaintiff was subjected to unwanted harassing conduct because of his/her protected status.’ Pansini v. Burbank Unified 24 25 Sch. Dist., 2023 Cal. Super. LEXIS 3896, *13-14. For the reasons previously discussed, plaintiff cannot satisfy this requirement.” (Demurrer at p. 11:22-27.) As an initial matter, it is unclear what “FCA” refers to, or how it is relevant here. Plaintiff’s causes of action are alleged under the Fair Employment and Housing Act. In addition, Defendants cite to Pansini v. Burbank Unified Sch. Dist., 2023 Cal. Super. LEXIS 3896, a non-binding trial court opinion.

Defendants also argue that “the first and second causes of action fail to sufficiently plead that the allegedly harassing conduct was severe or pervasive.” (Demurrer at p. 12:7-8.) Defendants cite to Hope v. California Youth Authority (2005) 134 Cal.App.4th 577, 588, where the Court of Appeal noted that “[a]n employee claiming harassment based upon a hostile work environment must demonstrate that the conduct complained of was severe enough or sufficiently pervasive to alter the conditions of employment and create a work environment that qualifies as hostile or abusive to employees because of their [sexual orientation]…” (Emphasis in original.) The Hope Court noted that “[i]n determining what constitutes ‘sufficiently pervasive’ harassment, the courts have held that acts of harassment cannot be occasional, isolated, sporadic, or trivial, rather the plaintiff must show a concerted pattern of harassment of a repeated, routine or a generalized nature.” ((Ibid.) In addition, the Hope Court noted that “[t]he plaintiff must prove that the defendant’s conduct would have interfered with a reasonable employee’s work performance and would have seriously affected the psychological well-being of a reasonable employee and that [he] was actually offended.” (Ibid.)

Defendants contend that here, “the Complaint fails to allege facts showing that defendant engaged in a concerted pattern of harassment of a repeated, routine or a generalized nature which served to alter the conditions of employment and create an abusive working environment; and that defendant’s conduct would have interfered with a reasonable employee’s work performance and would have seriously affected the psychological well-being of a reasonable employee and that (plaintiff) was actually offended.” (Demurrer at p. 13:11-20 [internal quotations omitted].)

But as noted by Plaintiff, she alleges that “[f]rom January 2022 through March 2022, Nicolaysen sent Valdez several unsolicited text messages discussing his desire for ‘Armenian hookers’, ‘concubines’ or ‘prostitutes.’ Nicolaysen made these sexual comments not only in text messages, but also in person while Nicolaysen and Valdez met for work-related purposes.” (Compl., ¶ 13.) Plaintiff alleges that “[o]n one other occasion Nicolaysen physically touched Valdez on her arm and back which resulted in Valdez visibly flinching from discomfort. Valdez did not welcome or solicit this physical touching.” (Compl., ¶ 14.)

Plaintiff also notes that she alleges that “[a]s the months went on, Nicolaysen continued to send Valdez increasingly derogatory and sexually harassing text messages. On one particularly egregious text thread Nicolaysen responded to Valdez’s lighthearted comment about having a personal chef by saying: ‘you don’t want someone to fillet your butt’ or ‘there are other ways to sauté pussy.’” (Compl., ¶ 15.) In addition, Plaintiff alleges that “[t]he text string continued with Nicolaysen explicitly telling Valdez that Nicolaysen will ‘talk [Valdez] into conducting a risqué video meeting with [Nicolaysen] one day and that will let out stress.’ Nicolaysen compounded the awful nature of his texts by making telling Ms. Valdez that Nicolaysen will authorize Valdez to receive ‘funding for [Valdez] to weed [wear] killer nylons’ during this fantasy video meeting Nicolaysen wanted.” (Compl., ¶ 16.)

Plaintiff alleges that “the sexually harassing communications started to create a toxic working environment…” (Compl., ¶ 19.) Plaintiff also alleges that “[t]he harassing conduct Plaintiff was subjected to was severe or pervasive such that a reasonable person in Plaintiff’s circumstances would have considered the working environment to be hostile, intimidating, offensive, oppressive, and/or abusive,” and that “Plaintiff in fact believed her working environment was hostile, intimidating, offensive, oppressive, and/or abusive.” (Compl., ¶¶ 26, 27.)

Based on the foregoing, the Court finds that Plaintiff as adequately alleged “a concerted pattern of harassment of a repeated…nature.” (Hope v. California Youth Authority, supra, 134 Cal.App.4th 577, 588.) The Court also finds that Plaintiff has adequately alleged that “the defendant’s conduct would have interfered with a reasonable employee’s work performance and would have seriously affected the psychological well-being of a reasonable employee and that [he] was actually offended.” (Ibid.)

Defendants also argue that the Complaint “fails to identify dates, locations or circumstances regarding the alleged communications and conduct at issue,” and that “[i]n failing to provide dates for the communications at issue, plaintiff has failed to demonstrate that the texts were part of a ‘concerted pattern of harassment of a repeated, routine or a generalized nature’ that was not merely sporadic.” (Demurrer at p. 13:23-24; 13:27-14:2.) But as discussed, the Court finds that Plaintiff as adequately alleged “a concerted pattern of harassment of a repeated…nature.” (Hope v. California Youth Authority, supra, 134 Cal.App.4th 577, 588.)

In addition, Plaintiff notes that she alleges that she “started working for Defendants in January 2022.” (Compl., ¶ 11.) In addition, Plaintiff alleges that “[a]s soon as Plaintiff began to work for Defendants, Nicolaysen began to groom Valdez for increasingly sexually explicit overtures by sending unsolicited text messages…” (Compl., ¶ 12.) Plaintiff further alleges that “[o]n June 23, 2023, Plaintiff filed an administrative charge with the California Department of Civil Rights and received a ‘Right to Sue’ letter…” (Compl., ¶ 20.)

Lastly, Defendants argue that “[a]n essential element of the FCA is that ‘plaintiff was harmed’ and ‘the conduct was a substantial factor in causing plaintiffs harm.’ Pansini, supra, 2023 19 Cal. Super. LEXIS 3896, at *13-14. For the reasons previously discussed, plaintiff has failed to satisfy this requirement.” (Demurrer at p. 14:16-21.) As discussed, it is unclear what “FCA” refers to, and Pansini v. Burbank Unified Sch. Dist., 2023 Cal. Super. LEXIS 3896 is a non-binding trial court opinion.

Based on the foregoing, the Court overrules Defendants’ demurrer to the first and second causes of action of the Complaint.

A court may strike any “¿irrelevant, false, or improper matter inserted in any pleading¿” or all or any part of a pleading “¿not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.¿” (¿Code Civ. Proc., § 436¿.) “¿The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.¿” (¿Code Civ. Proc., § 437¿.)

Defendants move to strike a number of allegations, including the allegations that “Plaintiff Marita Valdez (‘Plaintiff’ or ‘Valdez’) who was formerly employed by Defendants Gregory Nicolaysen, a Professional Law Corporation and Gregory Nicolaysen,” that “Defendant Gregory Nicolaysen, a Professional Law Corporation…was Plaintiff’s employer,” that “Defendant Gregory Nicolaysen (‘Nicolaysen’ collectively referred to with Nicolaysen Law Firm as ‘Defendants’)…was Plaintiff’s employer,” and that “Plaintiff is informed and believes, Defendants, and each of them, were also joint employers of Plaintiff as they regularly received Plaintiff’s services. Thus, the individual Defendants are also joint employers of Plaintiff. Accordingly, Defendants, and each of them, should be held jointly liable to Plaintiff for the wrongful acts alleged herein.” (Compl., ¶¶ 1, 2, 3, 9.)

Plaintiff also moves to strike the allegations that “Plaintiff was an employee and/or providing services under a contract to Defendants,” and that “[a]s a proximate result of Defendants’ wrongful conduct, Plaintiff has suffered and continues to sustain substantial losses in earnings and other employment benefits...” (Compl., ¶¶ 23, 29, 36.)

Defendants argue that the foregoing allegations should be stricken, because “[f]or the reasons addressed in detail in the Demurrers, defendant respectfully contends that, as a matter of law, no employer-employee relationship existed between the parties.” (Mot. at p. 4:21-25, emphasis omitted.) As discussed above, the Court does not find that Defendants demonstrated in the demurrer that “no employer-employee relationship existed between the parties.” (Mot. at p. 4:23-24.)

Based on the foregoing, Defendants’ demurrer is overruled in its entirety. Defendants’ motion to strike is denied.

The Court orders Defendants to file and serve their answer to the Complaint within 10 days of the date of this order.

[1]Plaintiff’s argument that the demurrer and motion to strike were untimely served is addressed in the Court’s January 17, 2024 Order concerning the instant demurrer and motion to strike.

[2]In addition, as set forth above, many of Defendants’ additional requests for judicial notice were denied.

Superior Court of California

County of Los Angeles

Department 50