Judge: Theodore R. Howard, Case: 21-1232544, Date: 2022-07-20 Tentative Ruling
A. Demurrer
Defendant County of Orange’s (“Defendant”) Demurrer to plaintiff Jane Doe 3’s (“Plaintiff”) Complaint is SUSTAINED in part and OVERRULED in part.
SUSTAINED with leave to amend as to cause of action (“COA”) Nos. 2 and 3.
OVERRULED as to COA No. 4.
The court first notes Defendant attached new evidence and made new arguments for the first time in its reply brief. This was improper as it does not permit Plaintiff the opportunity to review and respond to the new evidence/arguments. The court therefore will disregard the Requests for Admission and responses Defendants produced in its reply. The court also notes, even if it were to consider the new evidence in Defendant’s reply brief, that evidence would not change the court’s ruling on this Demurrer.
“We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The issue is the sufficiency of the pleading, not the truth of the facts alleged. Thus, no matter how unlikely or improbable, the allegations made must be accepted as true for the purpose of ruling on the demurrer. (Del E. Webb Corporation v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) Absent court orders or other items subject to judicial notice, or items attached as exhibits to the complaint, the court may not consider the contents of pleadings or other exhibits when ruling on a demurrer. (Day v. Sharp (1975) 50 Cal.3d 904, 914; Sosinsky v. Grant (1992) 6 Cal.App.4th 1746, 1749.)
“In our examination of the complaint we are guided by the well settled principles governing the testing of its sufficiency by demurrer: A demurrer admits all material and issuable facts properly pleaded. [Citations omitted.] However, it does not admit contentions, deductions or conclusions of fact or law alleged therein.” (Daar v. Yellow Cab Co. (1967) 67 Cal.2d 666, 672.)
Under Section 430.10(e) the test is whether the complaint states any valid claim entitling plaintiff to relief, even if plaintiff’s cause of action is improperly titled, or an improper remedy is stated. (Quelimane Co., Inc. v. Stewart Title Guar. Co. (1998) 19 Cal.4th 26, 38.) Under a general demurrer, plaintiff’s complaint must fail to state a valid cause of action for the demurrer to be sustained.
Finally, if a demurrer is sustained as to any cause of action or causes of action, it is an abuse of discretion to deny leave to amend if there is any reasonable possibility that plaintiff can state a good cause of action. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) But if a party cannot amend to state a valid cause of action, or the party opposing the demurrer cannot state how a valid cause of action can be pled, which the opposing party has the burden of proof on, then the demurrer should be sustained without leave to amend. (Hendy v. Losse (1991) 54 Cal.3d 723, 742.)
Defendant demurs to the second, third, and fourth causes of action (“COA”) on the basis that they fail to state sufficient facts to constitute a cause of action due to no adverse employment action being pled. (Civ. Proc. Code § 430.10(e).) Those COA are No. 2 – Racial Discrimination and/or Religious Discrimination and/or Sex Discrimination in Violation of the FEHA; COA No. 3 – Retaliation in Violation of the FEHA; and COA No. 4 – Failure to Investigate and Prevent in Violation of the FEHA.
1) COA No. 2 – Racial Discrimination and/or Religious Discrimination and/or Sex Discrimination in Violation of the FEHA
“It is an unlawful employment practice, unless based upon a bona fide occupational qualification, or, except where based upon applicable security regulations established by the United States or the State of California:
(a) For an employer, because of the race, religious creed, color, national origin, ancestry . . . sex, gender. . . of any person, to refuse to hire or employ the person or to refuse to select the person for a training program leading to employment, or to bar or to discharge the person from employment or from a training program leading to employment, or to discriminate against the person in compensation or in terms, conditions, or privileges of employment. . .” (Gov't Code § 12940(a).)
In regard to a claim of discrimination under Govt. Code § 12940, “[g]enerally, the plaintiff must provide evidence that (1) he was a member of a protected class, (2) he was qualified for the position he sought or was performing competently in the position he held, (3) he suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some other circumstance suggests discriminatory motive.” (Guz v. Bechtel Nat. Inc. (2000) 24 Cal. 4th 317, 355.)
“[W]e believe that the language in section 12940(a) making it an unlawful employment practice for an employer to discriminate against an employee on the basis of race, sex, or the other enumerated characteristics “in compensation or in the terms, conditions, and privileges of employment” properly must be interpreted broadly to further the fundamental antidiscrimination purposes of the FEHA. Appropriately viewed, this provision protects an employee against unlawful discrimination with respect not only to so-called “ultimate employment actions” such as termination or demotion, but also the entire spectrum of employment actions that are reasonably likely to adversely and materially affect an employee's job performance or opportunity for advancement in his or her career. Although a mere offensive utterance or even a pattern of social slights by either the employer or co-employees cannot properly be viewed as materially affecting the terms, conditions, or privileges of employment for purposes of section 12940(a) (or give rise to a claim under section 12940(h)),13 the phrase “terms, conditions, or privileges” of employment must be interpreted liberally and with a reasonable appreciation of the realities of the workplace in order to afford employees the appropriate and generous protection against employment discrimination that the FEHA was intended to provide.” (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal. 4th 1028, 1053–54 (“Yanowitz”.)
“Minor or relatively trivial adverse actions or conduct by employers or fellow employees that, from an objective perspective, are reasonably likely to do no more than anger or upset an employee cannot properly be viewed as materially affecting the terms, conditions, or privileges of employment and are not actionable, but adverse treatment that is reasonably likely to impair a reasonable employee's job performance or prospects for advancement or promotion falls within the reach of the antidiscrimination provisions of sections 12940(a) and 12940(h).” [Emphasis added.] (Id., at 1054.)
The only element Defendant contends Plaintiff has not properly pled is the third element for adverse employment action. Defendant is correct. None of the allegations in the Complaint amount to any adverse employment action suffered by Plaintiff. (Yanowitz, supra, 36 Cal. 4th at 1053–54; Akers v. Cnty. of San Diego (2002) 95 Cal. App. 4th 1441, 1455 and 1448-51; McRae v. Dep't of Corr. & Rehab. (2006) 142 Cal. App. 4th 377, 390.) Plaintiff’s allegations of adverse employment action were either 1) improper conclusions of fact or law, which cannot overcome a demurrer (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.); 2) allegations of emotional/mental distress that cannot properly be viewed as materially affecting the terms, conditions, or privileges of employment (Yanowitz, supra, 36 Cal. 4th at 1054.); or 3) actions and statements that were not directed to Plaintiff, had little to do with Plaintiff, and/or did not cause any adverse employment action on the part of Plaintiff.
As Plaintiff has failed to properly plead the required adverse employment action element of COA No. 2, the Demurrer is SUSTAINED with leave to amend.
2) COA No. 3 – Retaliation in Violation of the FEHA
“For any employer, labor organization, employment agency, or person to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part.” (Gov't Code § 12940(h).)
“(a) Retaliation Generally. It is unlawful for an employer or other covered entity to demote, suspend, reduce, fail to hire or consider for hire, fail to give equal consideration in making employment decisions, fail to treat impartially in the context of any recommendations for subsequent employment that the employer or other covered entity may make, adversely affect working conditions or otherwise deny any employment benefit to an individual because that individual has opposed practices prohibited by the Act or has filed a complaint, testified, assisted or participated in any manner in an investigation, proceeding, or hearing conducted by the Council or Department or its staff.” (Cal. Code Regs. tit. 2, § 11021(a).)
“Employees may establish a prima facie case of ... retaliation by showing that (1) they engaged in activities protected by the FEHA, (2) their employers subsequently took adverse employment action against them, and (3) there was a causal connection between the protected activity and the adverse employment action.” (Nazir v. United Airlines, Inc. (2009) 178 Cal. App. 4th 243, 287.)
Similar to COA No. 2, there were no allegations made in COA No. 3 regarding an actionable adverse employment action.
The Demurrer is SUSTAINED with leave to amend as to this COA.
3) COA No. 4 – Failure to Investigate and Prevent in Violation of the FEHA
It is unlawful, “[f]or an employer, labor organization, employment agency, apprenticeship training program, or any training program leading to employment, to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring.” (Gov't Code § 12940(k).)
“FEHA makes it unlawful “[f]or an employer ... to fail to take all reasonable steps necessary to prevent discrimination and harassment ... from occurring.” Cal. Gov't Code § 12940(k). A plaintiff seeking to recover on a failure to prevent discrimination claim under FEHA must show that (1) he was subjected to discrimination; (2) defendant failed to take all reasonable steps to prevent discrimination; and (3) this failure caused plaintiff to suffer injury, damage, loss or harm. [Citation.] The employer's duty to prevent harassment and discrimination is affirmative and mandatory. [Citation.] No liability can arise for failing to take necessary steps to prevent discrimination, however, except where discriminatory conduct actually took place and was not prevented. [Citation.] (“[T]he statutory language [does not] support[ ] recovery on such a private right of action where there has been a specific factual finding that no such discrimination or harassment actually occurred.”). Some examples of “reasonable steps” available to remedy harassment, discrimination, or retaliation under FEHA include “affirmatively raising the subject of harassment, expressing strong disapproval, developing appropriate sanctions, informing employees of their right to raise and how to raise the issue of harassment under California law, and developing methods to sensitize all concerned.” 2 Cal.Code Regs. § 11019(b). Other reasonable steps an employer might take include the establishment and promulgation of antidiscrimination policies and the implementation of effective procedures to handle discrimination-related complaints and grievances. [Citation.] The causation element of a section 12940(k) claim requires an employee show that the discriminatory conduct was a “substantial factor” in causing his harm. [Citations.] Termination from employment is an injury sufficient to support recovery under a section 12940(k) failure to prevent discrimination claim.” [Emphasis added.] (Achal v. Gate Gourmet, Inc., 114 F. Supp. 3d 781, 804 (N.D. Cal. 2015).)
“A plaintiff cannot state a claim for failure to prevent harassment unless the plaintiff first states a claim for harassment.” [Emphasis added.] (M.F. v. Pac. Pearl Hotel Mgmt. LLC (2017) 16 Cal. App. 5th 693, 701.) “Once an employer is informed of the sexual harassment, the employer must take adequate remedial measures. The measures need to include immediate corrective action that is reasonably calculated to (1) end the current harassment and (2) to deter future harassment. [Citation.] The employer's obligation to take prompt corrective action requires (1) that temporary steps be taken to deal with the situation while the employer determines whether the complaint is justified and (2) that permanent remedial steps be implemented by the employer to prevent future harassment.” (Id.)
COA No. 4 is derivative, but only requires a valid COA under either harassment or discrimination. While Plaintiff failed to properly plead COA Nos. 2 and 3, Defendant did not demur to COA No. 1 – Racial Harassment and/or Religious Harassment and/or Sexual Harassment in Violation of the FEHA, and thus appears to concede COA No. 1 is properly pled and valid COA. As COA No. 1 is still at issue and as it is a COA for harassment under Govt. Code § 12940, it will support COA No. 4.
Although the trier of fact will first need to determine whether Plaintiff has proven her harassment claim before it can consider a failure to investigate claim, a harassment claim (versus Defendant’s argument that solely discrimination or retaliation claims support COA No. 4) can be the basis of a failure to investigation COA. (Tritchler v. Cnty. of Lake, 358 F.3d 1150, 1154 (9th Cir. 2004).) As Defendant concedes COA No. 1 has been properly pled, and COA No. 4 can be derivative of COA No. 1, the COA is proper
Defendant also improperly asks the court to make a finding of fact that Defendant properly met its obligations to take remedial measures. That determination is not proper for demurrer as a demurrer only attacks the sufficiency of the pleadings.
The demurrer is OVERRULED as to this COA.
B) Motion to Strike
Defendant’s Motion to Strike (“MTS”) Plaintiff’s use of “Jane Doe 3” and require Plaintiff to use her true name is GRANTED.
The court grants the MTS pursuant to Civ. Proc. Code §§ 435(b)(1) and 436.
“ ‘A real party in interest ordinarily is defined as the person possessing the right sued upon by reason of the substantive law.’ [Citation.] A complaint filed by someone other than the real party in interest is subject to general demurrer on the ground that it fails to state a cause of action. [Citation.] The purpose of this section is to protect a defendant from harassment by other claimants on the same demand. [Citation.] [¶] The question for purposes of standing is not the name used by the party suing but whether the party suing is the party possessing the right sued upon. In this matter, there is no question plaintiff is the party injured by virtue of defendants' actions and, therefore, she is the party possessing the right sued upon. Thus, the question is not whether plaintiff has standing to sue but whether she may do so using a fictitious name.” (Doe v. Lincoln Unified Sch. Dist. (2010) 188 Cal. App. 4th 758, 765 (“Lincoln”).) “In Does I thru XXIII v. Advanced Textile Corp. (9th Cir.2000) 214 F.3d 1058 [“Advanced Textile”], at page 1067, the Ninth Circuit Court of Appeals noted that federal courts “have permitted plaintiffs to use pseudonyms in three situations: (1) when identification creates a risk of retaliatory physical or mental harm [citations]; (2) when anonymity is necessary ‘to preserve privacy in a matter of sensitive and highly personal nature,’ [citations]; and (3) when the anonymous party is ‘compelled to admit [his or her] intention to engage in illegal conduct, thereby risking criminal prosecution,’ [citations].” (Id. at p. 1068.) The court went on to hold that “a party may preserve his or her anonymity in judicial proceedings in special circumstances when the party's need for anonymity outweighs prejudice to the opposing party and the public's interest in knowing the party's identity.” (Ibid.)” (Lincoln, supra, 188 Cal. App. 4th at 767.)
In Advanced Textile, “[t]he Ninth Circuit further held that if pseudonyms are necessary to shield a party from retaliation, the following factors should be evaluated to determine the need for anonymity: “(1) the severity of the threatened harm; (2) the reasonableness of the anonymous party's fears; and (3) the anonymous party's vulnerability to such retaliation.” [Advanced Textile, supra, 214 F.3d at 1068.] (Citations omitted). The Ninth Circuit also held that the trial court must consider the precise prejudice the motion would cause the opposing party at each stage of the proceedings, and whether the proceedings may be structured so as to mitigate that prejudice. Id. at 1068–1069. Finally, the Ninth Circuit held that the trial court must determine whether the public's interest in the case is best served by requiring the litigants to reveal their identities. Id. at 1068.” (E.E.O.C. v. ABM Indus. Inc., 249 F.R.D. 588, 593 (E.D. Cal. 2008) (“ABM”).)
The court first notes Plaintiff argues that California Courts do not rely on the holding in Advanced Textile. As many if not all of the cases cited by Plaintiff cite to or use Advanced Textile in their analysis, and as Plaintiff has offered no valid alternative framework or cases that aid in determining the question of anonymity of a party, the court will proceed under the Advanced Textile framework.
Applying the balancing test in Advanced Textile, “courts have permitted plaintiffs to use pseudonyms in three situations: (1) when identification creates a risk of retaliatory physical or mental harm, [Citations.]; (2) when anonymity is necessary “to preserve privacy in a matter of sensitive and highly personal nature,” [Citations.]; and (3) when the anonymous party is “compelled to admit [his or her] intention to engage in illegal conduct, thereby risking criminal prosecution.” (Advanced Textile, supra, 214 F.3d at 1068.) Plaintiff has produced no evidence supporting either the first or third situation, thus only potential issues under the second situation.
Further, “in cases where, as here, pseudonyms are used to shield the anonymous party from retaliation, the district court should determine the need for anonymity by evaluating the following factors: (1) the severity of the threatened harm, see Southern Methodist Univ., 599 F.2d at 713 [No anonymity permitted to female attorneys who were suing law firms for alleged sex discrimination under EEOC. There, “is no greater threat of retaliation than the typical plaintiff alleging Title VII violations, including the other women who, under their real names and not anonymously, have filed sex discrimination suits against large law firms.”]; (2) the reasonableness of the anonymous party's fears [Citation.]; and (3) the anonymous party's vulnerability to such retaliation, see id. (discussing vulnerability of child plaintiffs); [Citation.]. The court must also determine the precise prejudice at each stage of the proceedings to the opposing party, and whether proceedings may be structured so as to mitigate that prejudice. [Citation.]. Finally, the court must decide whether the public's interest in the case would be best served by requiring that the litigants reveal their identities. See Stegall, 653 F.2d at 185 (recognizing that “[p]arty anonymity does not obstruct the public's view of the issues joined or the court's performance in resolving them.”). (Advanced Textile, supra, 214 F.3d at 1068–69.)
“Because there is a presumption that parties' identities are public information, anonymity is only proper under “special circumstances when the party's need for anonymity outweighs prejudice to the opposing party and the public's interest in knowing the party's identity.” [Citation.] The Ninth Circuit allows parties to use pseudonyms in unusual cases where anonymity is “necessary ... to protect a person from harassment, injury, ridicule or personal embarrassment.” [Citation.] Anonymity can be based on fear of retaliatory harm, the need for privacy, or admission of illegal conduct. Advanced Textile, 214 F.3d at 1068. However, the Ninth Circuit has made clear that use of a pseudonym should only be permitted occasionally and in “unusual” cases. (Doe v. UNUM Life Ins. Co. of Am., 164 F. Supp. 3d 1140, 1144 (“UNUM”).)
“[A]nonymity is justified where plaintiffs face “greater threats of retaliations than the typical plaintiff.” (ABM, supra, 249 F.R.D. at 594.) “The most compelling situations [in which plaintiffs are allowed to proceed anonymously] involve matters which are highly sensitive, such as social stigmatization, real danger of physical harm, or where the injury litigated against would occur as a result of the disclosure of the plaintiff's identity.” (UNUM, supra, 164 F. Supp. 3d at 1145.)
Plaintiff alleges the threat of discrimination, sexual harassment and retaliation under the FEHA. These are not severe threats of harm. As to sexual harassment, Plaintiff has alleged in the Complaint that her harasser (LoGalbo) is no longer employed by OCDA. Plaintiff has alleged no other acts of sexual harassment by any other individuals, nor any real threat of further sexual harassment if her name were to be revealed. As to discrimination or retaliation under FEHA, as noted in the ruling on the demurrer (supra), Plaintiff has failed to allege facts sufficient to support she has experienced any discrimination or retaliation based on her complaints about LoGalbo’s actions. To the extent that Plaintiff, once her name is known, does actually experience discrimination or retaliation, she would be able to validly state causes of action under Govt. Code § 12940 and would be able to sue Defendant for any new acts of retaliation or discrimination. Plaintiff has alleged no greater threat of discrimination or retaliation than a typical plaintiff alleging violations under the FEHA. Plaintiff is also no more or less vulnerable to discrimination or retaliation than other non-anonymous plaintiffs suing their employers. Plaintiff has pled no facts suggesting this element support anonymity in this case.
It is unclear if Plaintiff’s fears are or are not reasonable at this point. As noted, Plaintiff is protected under the FEHA for acts of retaliation or discrimination, including those that might occur as a result of this lawsuit. However, again, Plaintiff is no more or less vulnerable to discrimination or retaliation than other non-anonymous plaintiffs suing their employers. Plaintiff has pled no facts suggesting this element support anonymity in this case.
Plaintiff has not pled facts supporting any vulnerability to retaliation in excess of that a non-anonymous plaintiff might suffer. Plaintiff may also actually be less vulnerable as not only is she an attorney herself, but she works for a government agency that likely has stricter compliance with FEHA requirements than private sector firms. Plaintiff has pled no facts suggesting this element support anonymity in this case.
Plaintiff has pled no “special” or “unusual” facts that would support the need for anonymity, nor has she shown any greater threat of retaliation than any non-anonymous plaintiffs suing their employers. (UNUM, supra, 164 F. Supp. 3d at 1145-46 [An attorney suing an employer is under no greater threat of discrimination or retaliation than other non-anonymous plaintiffs suing their employers]; S. Methodist Univ. Ass'n of Women L. Students v. Wynne & Jaffe, 599 F.2d 707, 713 (5th Cir. 1979).) “That the plaintiff may suffer some embarrassment or economic harm is not enough [to support anonymity].” (Id.) In contrast, anonymity was granted in the Advanced Textile case to Chinese plaintiffs working in garment factories in the Mariana Islands (where there were limited other job prospects) who showed not only were they threatened with losing their jobs, but also threatened with deportation, being burdened with debts to labor contracting agencies, and imprisonment in China. (Advanced Textile, supra, 214 F.3d at 1062-63.) None of the allegations made by Plaintiff come anywhere near the issues in Advanced Textile, and therefore Plaintiff should not remain anonymous.
Defendant argues that it will be prejudice by Plaintiff’s anonymity in its inability to investigate the scope and extent of Plaintiff’s alleged physical and emotion injuries as Defendant intends to subpoena Plaintiff’s various medical providers for records, which will require Plaintiff’s true name to locate Plaintiff’s records. Defendant will also need to verify exhaustion of Plaintiff’s administrative remedies. Further, Defendant will need to depose various witnesses to confirm or refute Plaintiff’s allegations, and the use of “Doe” instead of Plaintiff’s real name will cause confusion and may result in Defendant missing relevant information and testimony. Finally, Defendant argues the use of “Doe” may be prejudicial at trial as a jury may imply someone using “Doe” may need additional protections. Defendant’s arguments are compelling and show precise prejudices Defendant may suffer at each stage. “In cases where the plaintiffs have demonstrated a need for anonymity, the district court should use its powers to manage pretrial proceedings. . . and to issue protective orders limiting disclosure of the party's name. . . to preserve the party's anonymity to the greatest extent possible without prejudicing the opposing party's ability to litigate the case.” (Advanced Textile, supra, 214 F.3d at 1069.) Plaintiff has failed to demonstrate a need for her anonymity, while Defendant has sufficiently argued prejudice if anonymity is permitted.
Finally, “[a] court “must decide whether the public's interest in the case would be best served by requiring that the litigants reveal their identities.” Advanced Textile, 214 F.3d at 1068. A plaintiff's “use of fictitious names runs afoul of the public's common law right of access to judicial proceedings.” Id. at 1067. As the Supreme Court has written, “A trial is a public event. What transpires in the court room is public property.” [Citation.] Doe asserts that allowing him to use a pseudonym furthers the public interest by shielding disabled plaintiffs from the “public scrutiny of the operative issues of the case” and removing unnecessary barriers that may prevent similarly situated plaintiffs from commencing litigation. [Citation.] While I am sensitive to Doe's concerns, I do not agree that his identity should be concealed when the primary harm asserted is embarrassment and the stigma is no greater than in many disability cases.” (UNUM, supra, 164 F. Supp. 3d at 1146–47.)
As Plaintiff has failed to demonstrate a need for anonymity in this lawsuit, she cannot overcome the prejudice to Defendant or the public’s interest in litigants using their true names.
The MTS is GRANTED.
Plaintiff’s is given leave to file a First Amended Complaint within 15-days of the hearing.
Defendant to give notice.