Judge: Theresa M. Traber, Case: 21STCV33143, Date: 2022-08-17 Tentative Ruling
Case Number: 21STCV33143 Hearing Date: August 17, 2022 Dept: 47
Tentative Ruling
Judge Theresa M. Traber, Department 47
HEARING DATE: August 17, 2022 TRIAL
DATE: August 7, 2023
CASE: Fouad Barakat v. County of Los Angeles,
et al.
CASE NO.: 21STCV33143 
DEMURRER
TO COMPLAINT
MOVING PARTY: Defendant Steve Lam
RESPONDING PARTY(S): Plaintiff Fouad
Barakat
CASE
HISTORY:
·
09/08/21: Complaint filed.
STATEMENT
OF MATERIAL FACTS AND/OR PROCEEDINGS:
This is an action for employment discrimination filed on September 8,
2021. Plaintiff alleges that he has been subjected to extensive discrimination,
harassment, and retaliation based on his national origin.
Defendant Steve Lam demurs to the
first cause of action for harassment.
TENTATIVE RULING:
Defendant’s demurrer is SUSTAINED
with leave to amend. Plaintiff shall have 30 days leave to file a First Amended
Complaint from the date of this order.
DISCUSSION:
Defendant
Steve Lam demurs to the first cause of action for harassment.
Legal Standard
A demurrer tests whether the
complaint states a cause of action. (Hahn v. Mirda (2007) 147
Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations
liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and
Power (2006) 144 Cal.App.4th 1216, 1228.) In a demurrer proceeding, the
defects must be apparent on the face of the pleading or via proper judicial
notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968,
994.) “A demurrer tests the pleadings alone and not the evidence or other
extrinsic matters. Therefore, it lies only where the defects appear on the face
of the pleading or are judicially noticed.” (SKF Farms v. Superior Court
(1984) 153 Cal.App.3d 902, 905.) “The only issue involved in a demurrer hearing
is whether the complaint, as it stands, unconnected with extraneous matters, states
a cause of action.” (Hahn, supra, 147 Cal.App.4th at p. 747.) The
ultimate facts alleged in the complaint must be deemed true, as well as all
facts that may be implied or inferred from those expressly alleged. (Marshall
v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403; see also Shields
v. County of San Diego (1984) 155 Cal.App.3d 103, 133 [stating, “[o]n
demurrer, pleadings are read liberally and allegations contained therein are
assumed to be true”].) “This rule of liberal construction means that the
reviewing court draws inferences favorable to the plaintiff, not the
defendant.” (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th
1228, 1238.)
Meet and Confer
Before filing a demurrer, the
demurring party shall meet and confer in person or by telephone with the party
who has filed the pleading subject to the demurrer and file a declaration
detailing their meet and confer efforts. (Code Civ. Proc., § 430.41(a).)
However, an insufficient meet and confer process is not grounds to overrule
or sustain a demurrer. (Code Civ. Proc., § 430.41(a)(4).)
The Declaration of Cathy Chittenden
states that Defendants sent a meet and confer letter to Plaintiff’s counsel
regarding the issues outlined in the Demurrer on March 10, 2022 and invited further
efforts to meet and confer. (Declaration of Cathy Chittenden ISO Demurrer ¶ 3,
Exh. A.) The Declaration states that no response was ever received. (Id.)
The Court therefore finds, in light of the failure to respond by Plaintiff,
that Defendants have satisfied the meet and confer requirements of the statute.
Analysis
Defendant
contends that Plaintiff has failed to state facts sufficient to constitute a
cause of action against Defendant because Plaintiff has not alleged any conduct
sufficient to qualify as harassment as a matter of law that occurred in his
presence or in his immediate work environment.
Harassment may be verbal, physical,
or visual, but must communicate an offensive message to the harassed employee.
(Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 706.) Whether the
harassment is sufficiently severe or pervasive to alter the conditions of the
victim's employment and create an abusive environment "must be assessed
from the 'perspective of a reasonable person belonging to the racial or ethnic
group of the plaintiff.'" (Nazir v. United Airlines, Inc. (2009)
178 Cal.App.4th 243, 263-64.)
Plaintiff
alleges in the Complaint that, at some point after 2013, Plaintiff began complaining
of a hostile work environment in the Department of Public Works’ East Los
Angeles Office against female employees. (Complaint ¶ 16.) Plaintiff alleges
that Defendant Lam, who had previously been trained by Plaintiff, was promoted
over Plaintiff to head the East Los Angeles Office, and allegedly took
exception to Plaintiff’s methods of protecting female staff from the alleged
hostile work environment. (Id. ¶ 17.) The Complaint alleges that Defendant
Lam began making negative comments in Plaintiff’s performance valuation, and
refused to provide additional assignments that would increase Plaintiff’s
promotional prospects, thereby causing Plaintiff to be demoted on October 26,
2017. (Id. ¶ 18.) Aside from this single date, the Complaint does not
provide any specific dates of when any of the other alleged conduct transpired,
nor does the Complaint allege any additional conduct towards Plaintiff by
Defendant Lam. The Complaint is also devoid of specifics regarding the comments
made by Defendant Lam toward Plaintiff, other than that Defendant Lam “disputed
[Plaintiff’s] method for handling [the alleged hostile work environment]” by
“threatening to have the Sheriff’s [sic] respond.” (Complaint ¶ 17.) Plaintiff
contends in opposition that he subsequently experienced “severe and pervasive
harassment, including a clearly imbalanced workload which Lam refused to
rectify as well as constant humiliation especially when bypassed for promotion,
especially after receiving three Very Good ratings.” (Opposition p.3:11-14.) Plaintiff
states that “Lam was allowed to affect Barakat’s placement in February 2021 in
Band 2, despite Barakat’s protests.” (Opposition p.3:15-17.)
The Court
agrees with Defendant that these allegations are not sufficient, as a matter of
law, to sustain a claim for harassment under FEHA. As the Court of Appeal
stated in Janken v. GM Hughes Elecs:
commonly
necessary personnel management actions such as hiring and firing, job or
project assignments, office or work station assignments, promotion or demotion,
performance evaluations, the provision of support, the assignment or
nonassignment of supervisory functions, deciding who will or who will not attend
meetings, deciding who will be laid off, and the like, do not come within the
meaning of harassment.
(Janken v. GM
Hughes Elecs., (1996) 46 Cal.App.4th 55, 64-65.) Plaintiff argues
that Defendant’s demurrer should not be sustained because the Complaint alleges
that the complained-of conduct would be offensive from the perspective of a
reasonable person of Plaintiff’s background as a Nigerian-born Lebanese person.
(See Nazir v. United Airlines (2009) 178 Cal.App.4th 243. 263-64; see
also Stats. 2018, ch. 955 [amending FEHA to approve Nazir].)
In the Court’s view, Plaintiff
misconstrues the meaning of the Nazir holding and the 2018 amendments. First,
unlike here, the Court of Appeal in Nazir was reviewing a trial court’s
order granting a motion for summary judgment, not a demurrer. (Nazir, supra,
178 Cal.App.4th at 250.) Second, the complained-of conduct in Nazir
extended beyond “commonly necessary personnel management actions,” including
incessant racist remarks toward the plaintiff, offensive flyers slipped under
the plaintiff’s door, vandalism of the plaintiff’s car and his office, and
being reported to the Federal Bureau of Investigation as a “possible
terrorist.” (Id. at 257-62.) Here, the only mistreatment alleged is
through personnel evaluations, office and work assignments, and promotions or
lack thereof. Despite Plaintiff’s contentions, Nazir does not reach the
issue of whether commonly necessary management actions can constitute harassment,
because the factual record was replete with examples of conduct that was
manifestly outside that category. If the Court were to adopt Plaintiff’s
interpretation of Nazir and the 2018 amendments, a claim for harassment
would swallow a cause of action for discrimination, which, as stated in Janken,
is the basis upon which an employee may seek a remedy for actions within
the scope of commonly necessary management actions. (Janken, supra, 46
Cal.App.4th at 65.) Absent an explicit statement by the Legislature to the
contrary, the Court cannot conclude that the purpose of the 2018 amendments was
to create such a circumstance. (See Civ. Code § 3541.)
Leave to Amend
When a demurrer is sustained, the
Court determines whether there is a reasonable possibility that the defect can
be cured by amendment. (Blank v. Kirwan (1985) 39 Cal.3d 311,
318). When a plaintiff “has pleaded the general set of facts upon
which his cause of action is based,” the court should give the plaintiff an
opportunity to amend his complaint, since plaintiff should not “be deprived of
his right to maintain his action on the ground that his pleadings were
defective for lack of particulars.” (Reed v. Norman (1957) 152
Cal.App.2d 892, 900.) Accordingly, California law imposes the burden on the
plaintiffs to demonstrate the manner in which they can amend their pleadings to
state their claims against a defendant. (Goodman v. Kennedy
(1976) 18 Cal.3d 335, 349.) “Denial of leave to amend constitutes an abuse of
discretion unless the complaint shows on its face it is incapable of
amendment. [Citation.] Liberality in permitting amendment is the
rule, if a fair opportunity to correct any defect has not been given."
(Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227.)
Plaintiff has not shown the manner
in which the Complaint could be amended to repair the defects in the Complaint.
However, in light of the liberal standard for amendment of pleadings, the Court
will nevertheless exercise its discretion to grant leave to amend.
CONCLUSION:
Accordingly,
Defendant’s demurrer is SUSTAINED with leave to amend. Plaintiff shall have 30
days leave to file a First Amended Complaint from the date of this order.
Moving
Party to give notice.
IT IS SO ORDERED.
Dated: August 17,
2022 ___________________________________
Theresa
M. Traber
Judge
of the Superior Court
Any party may submit on the
tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day
before the hearing. All interested parties must be copied on the email. It
should be noted that if you submit on a tentative ruling the court will still
conduct a hearing if any party appears. By submitting on the tentative you
have, in essence, waived your right to be present at the hearing, and you
should be aware that the court may not adopt the tentative, and may issue an
order which modifies the tentative ruling in whole or in part.