Judge: Theresa M. Traber, Case: 22STCV00811, Date: 2022-08-17 Tentative Ruling
Case Number: 22STCV00811 Hearing Date: August 17, 2022 Dept: 47
aTentative Ruling
Judge Theresa M. Traber, Department 47
HEARING DATE: August 17, 2022 TRIAL DATE: Not set.
CASE: Louis Willis v. Constantin Film
Development Inc. et al.
CASE NO.: 22STCV00811
DEMURRER TO FIRST
AMENDED COMPLAINT
MOVING PARTY: Defendants Constantin Film Development, Inc.; Martin
Moszkowicz; Nick Hanks; Robert Kulzer
RESPONDING PARTY(S): Plaintiff Louis
Willis
CASE
HISTORY:
·
01/07/22: Complaint filed.
·
03/14/22: First Amended Complaint filed.
STATEMENT
OF MATERIAL FACTS AND/OR PROCEEDINGS:
This is an employment
discrimination action filed on January 4, 2022. In his First Amended Complaint, filed on March
14, 2022, Plaintiff alleges that he was subjected to extensive racial
discrimination while employed by Defendants and was subsequently terminated in
retaliation for reporting racial discrimination by the individual defendants.
Defendants demur to the first,
second, third, fourth, fifth, sixth, and twelfth causes of action for failure
to state facts sufficient to constitute a cause of action.
TENTATIVE RULING:
Defendants’ Demurrer is OVERRULED
in its entirety.
DISCUSSION:
Defendants demur to the first,
second, third, fourth, fifth, sixth, and twelfth causes of action for failure
to state facts sufficient to constitute a cause of action.
//
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 Vishwanath
Kootala Mohan states that counsel for the parties met and conferred on March
31, 2022 regarding deficiencies in the First Amended Complaint that persisted
following Plaintiff’s amendment of the original Complaint. (Declaration of
Vishwanath Kootala Mohan ISO Demurrer ¶ 5.) The declaration does not state by
what means counsel for the parties met and conferred. However, the Court finds,
based on the evidence that the parties have been meeting and conferring since
February 23, 2022 regarding allegedly persistent deficiencies in the pleadings,
that Defendants have satisfied the meet and confer requirements of section
430.41.
First Cause of Action: Discrimination
Defendants
demur to the first cause of action for discrimination for failure to state
facts sufficient to constitute a cause of action.
Defendants contend that Plaintiff
has failed to state facts sufficient to constitute a cause of action because
Plaintiff has not adequately pled discriminatory animus nor a causal
connection. The elements of a claim for employment discrimination are (1) the
employee is a member of a protected class (2) the employee is performing
competently in the position held; (3) the employee suffered an adverse
employment action; and (4) some other circumstance suggests discriminatory
motive. (Guz v. Bechtel National (2000), 24 Cal.4th 317 at 355.)
Allegations satisfying these four elements give rise to a presumption of discriminatory
animus as a basis for the complained-of injury. (Mamou v. Trendwest Resorts,
Inc. (2008) 165 Cal.App.4th 686, 713-14.)
Defendants contend that Plaintiff
must plead allegations sufficient to, if true, prove discriminatory animus and
a causal connection between the animus and the adverse action under Mamou.
However, Defendants ignore the Mamou court’s subsequent acknowledgement
that the courts have fashioned a special order of proof with shifting burdens of
production, through which a presumption of discriminatory animus and a causal
connection to the adverse action arises if the Plaintiff presents a prima facie
case establishing the Guz elements. (Id.) Defendants do not
challenge the allegations on the basis of a failure to properly allege any of
the four elements in the Guz v. Bechtel test. Accordingly, the Court
finds that Defendants have not shown that Plaintiff failed to state facts
sufficient to constitute a cause of action for discrimination.
Second Cause of Action: Harassment
Defendants
demur to the second cause of action for harassment for failure to state facts
sufficient to constitute a cause of action.
To establish a prima facie case of
harassment via a hostile work environment under the Fair Employment and Housing
Act, an employee must show that (1) they are a member of a protected class; (2)
that they were subjected to unwelcome harassment; (3) that the harassment was
based on the employee’s protected status; (4) the harassment unreasonably
interfered with the employee’s work performance by creating an intimidating,
hostile, or offensive work environment; and (5) defendants are liable for the
harassment. (Gov. Code § 12940(a).) The complained-of conduct must be
sufficiently severe or pervasive to alter the conditions of employment and
create a work environment that qualifies as hostile or abusive to an employee
because of their protected status. (Gov. Code § 12940(j)(1).)
Defendants demur to this cause of
action on the basis that, first, Plaintiff’s second cause of action is based on
the same conduct as the first cause of action as the first, and therefore the
two causes of action must rise or fall together. As the Court has overruled the
demurrer to the first cause of action, this argument does not establish that
Plaintiff has failed to state facts sufficient to constitute a cause of action
for harassment.
Second, Defendants contend that all
the complained-of conduct consists of commonly necessary personnel actions
which are not harassment as a matter of law. Defendant relies on Janken v.
GM Hughes Elecs, which states:
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.) Defendants assert that none of the complained-of conduct, aside
from an incident with a prospective employee, was outside of the scope of
commonly necessary personnel actions.
A cursory review of the Complaint
defeats this contention. Plaintiff has alleged that Defendant Kulzer verbally
reprimanded Plaintiff and two of his friends who were persons of color for
repeatedly talking loudly (FAC ¶ 19), that Defendant Hanks accused Plaintiff of
stealing from the company and asked to see Plaintiff’s W-2, a request that was not
made of any other employee (FAC ¶ 25), and that Defendant Kulzer made comments after
an interview with a Black candidate focusing on the candidate’s “urban appeal.”
(FAC ¶ 28.) Defendant states, both in the initial moving papers and in the
reply, that none of the complained-of conduct was outside the scope of
commonly-necessary management decisions. However, Defendants offer no
explanation of how any of this conduct qualifies as such beyond conclusory
assertions, such as, for example how an accusation of theft that is only made
of the sole Black employee is a “commonly necessary management decision.”
Construing the allegations in the light most favorable to Plaintiff, as
required on demurrer, the Court concludes that Plaintiff has adequately alleged
actions which are outside the scope of “commonly necessary management
decisions” and, thus, are sufficient to state a cause of action for harassment.
Third Cause of Action for Age Discrimination
Defendants
demur to the third cause of action for age-based discrimination for failure to
state facts sufficient to constitute a cause of action.
Defendants
contend that Plaintiff has failed to state facts sufficient to constitute a
cause of action for age discrimination because Plaintiff has not shown that he
was replaced by a person of substantially younger age. Defendant relies on Muzquiz
v. City of Emeryville, which states:
“In the context of the usual age
discrimination case, a prima facie case of age discrimination arises when
the employee shows that: (1) at the time of the adverse employment action, the
employee was 40 years of age or older; (2) some adverse employment action was
taken against the employee; (3) at the time of the adverse action the employee
was satisfactorily performing his or her job; and (4) the employee was replaced
in his or her position by a significantly younger person.”
(Muzquiz v. City of Emeryville (2000) 79 Cal.App.4th
1106, 1116 [emphasis added].) However, this test is in the context of age
discrimination via demotion (Hersant v. Department of Social Services, (1997)
57 Cal.App.4th 997, 999), failure to rehire (Caldwell v. Paramount Unified
School Dist. (1995) 41 Cal.App.4th 189, 194), or termination (Mixon v.
Fair Employment & Housing Com. (1987) 192 Cal.App.3d 1306, 1310.)
Here, Plaintiff alleges multiple
examples of conduct which he alleges is age-based discrimination, including a
denial of any raise or bonus while younger employees received both (FAC ¶ 16),
assigning Plaintiff menial tasks not given to younger and more junior employees
(FAC ¶ 17), and, ultimately, termination. (FAC ¶ 33.) Defendants attack only the
allegation of termination specifically, stating that Plaintiff has not alleged
that he was replaced by a younger employee. Defendant is correct in this
respect, but, as Plaintiff has alleged multiple instances of disparate
treatment that are alleged to be based partly on Plaintiff’s age, Defendant’s
attack is not sufficient to defeat this cause of action. With respect to the
remainder of the allegations, Defendants’ only argument is that Plaintiff has
not directly pled discriminatory animus as a motivating factor. As in the first
cause of action, allegations of circumstances that give rise to an inference of
discrimination are sufficient under the applicable burden-shifting analysis to
create a presumption that animus was a substantial motivating factor. (Muzquiz,
supra¸ 79 Cal.App.4th at 1116.) Here, Plaintiff has made the necessary
allegations, and accordingly, Plaintiff has adequately pled a cause of action
for age discrimination.
Fourth Cause of Action: Failure to Prevent:
Defendants
demur to the Fourth Cause of Action arguing that Plaintiff has not stated facts
sufficient to constitute a cause of action for failure to prevent
discrimination.
Government
Code section 12940 makes it unlawful for an employer to fail to take all
reasonable steps necessary to prevent discrimination and harassment from
occurring. (Gov. Code § 12940(k).)
Defendants first contends that this
cause of action is subject to demurrer because Plaintiff has not adequately
pled discrimination or harassment. As the Court has already rejected these
contentions, this argument likewise fails.
Defendants also argues that
Plaintiff has failed to state facts sufficient to constitute a cause of action
because Plaintiff’s own allegations state that Defendants took all steps
necessary to prevent discrimination and harassment from occurring. Defendants
argue that when Plaintiff notified Defendant Moskowitz of another employee’s
complaints, Defendants immediately hired a professional investigator and
therefore took all reasonable steps necessary. (FAC ¶¶ 30-32.) While Defendants
contend that this was the first instance where Plaintiff notified Defendants of
any discrimination or harassment, the First Amended Complaint includes no such
allegation. Thus, that one allegation cannot absolve Defendants of all
liability.
Further, Plaintiff alleges is that the
individuals who directly participated in the discriminatory and harassing
conduct were Defendant Moskowitz, the CEO (FAC ¶ 6), Defendant Hanks, the
Senior Vice President of Business Affairs and Legal (Id. ¶ 7), and
Defendant Kulzer, the Co-President (Id. ¶ 8.) Put differently, the
Complaint alleges that the uppermost leadership of the company who were
ultimately responsible for preventing discrimination and harassment from
occurring were the very individuals who were directly involved in the
complained-of conduct. Moreover, Defendant
cites no valid authority standing for the proposition that an investigation of
a single complaint is sufficient to show that all reasonable steps were taken
despite multiple instances of allegedly improper conduct by senior leadership.
Defendants’ sole case in support is an unpublished appellate opinion, which is
not citable under Rule 8.1115 of the California Rules of Court. The Court therefore finds that Defendants
have not shown that Plaintiff has failed to state facts sufficient to
constitute a cause of action for failure to prevent discrimination.
Fifth, Sixth, and Twelfth Causes of Action
Defendants
demur to the fifth cause of action for whistleblower retaliation, sixth cause
of action for retaliation under FEHA, and twelfth cause of action for wrongful
termination for failure to state facts sufficient to constitute a cause of
action.
Defendants
contend that each of these three causes of action fail because the underlying
claims for discrimination and harassment fail. As the Court has overruled the
demurrers to Plaintiff’s causes of action for discrimination and harassment,
the Court similarly concludes that Defendants have not shown that Plaintiff has
failed to state facts sufficient to constitute these causes of action.
CONCLUSION:
Accordingly, Defendants’ Demurrer is
OVERRULED in its entirety.
Moving Parties 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.