Judge Theresa M. Traber, Case 22STCV39114 2023-04-10 Tentative Ruling

Judge: Theresa M. Traber, Case: 22STCV39114, Date: 2023-04-10 Tentative Ruling

Case Number: 22STCV39114 Hearing Date: April 10, 2023 Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE: April 10, 2023 TRIAL DATE: None.

CASE: Carlos Flores v. County of Los Angeles et al.

CASE NO.: 22STCV39114

DEMURRER

MOVING PARTY: Defendant County of Los Angeles

RESPONDING PARTY(S): Plaintiff Carlos Flores

CASE HISTORY:

· 12/16/22: Complaint filed.

· 01/17/23: Demurrer without Motion to Strike Plaintiff’s Complaint, Request for Judicial Notice, and Declaration of Megan Atkinson by Defendant County of Los Angeles filed.

· 03/23/23: The Court found this action (22STCV39114) and 21STCV21913 are not related within the meaning of California Rules of Court, rule 3.300(a).

· 03/01/23: Notice of Rescheduling Hearing Date of the Demurrer by Defendant County of Los Angeles filed.

· 03/27/23: Opposition to Demurrer, Objection to Defendant’s Request for Judicial Notice, and Plaintiff’s Request for Judicial Notice by Plaintiff Carlos Flores filed.

· 04/03/23: Reply by Defendant County of Los Angeles filed.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

This is an employment law action. Plaintiff alleges that Defendant County of Los Angeles retaliated against him for filing an administrative complaint with the Department of Fair Employment and Housing and initiating a lawsuit against the defendant for discrimination. Plaintiff asserts two causes of action against the defendant: (1) retaliation in violation of the Fair Employment and Housing Act (“FEHA”) and (2) failure to prevent retaliation in violation of FEHA.

Defendant County of Los Angeles now demurs the first and second causes of action, arguing that they are barred by collateral estoppel and, therefore, fail to state facts sufficient to constitute a cause of action.

TENTATIVE RULINGS:

Defendant’s demurrer is OVERRULED in its entirety.

DISCUSSION:

A. Meet and Confer

Before filing a demurrer, the moving party must meet and confer in person or by telephone with the party who filed the pleading to attempt to reach an agreement that would resolve the objections to the pleading. (CCP § 430.41.)

The declaration of Meghan Atkinson satisfies the meet and confer requirement.

B. Requests for and Objections to Judicial Notice

Defendant County of Los Angeles (the “County”) requests judicial notice of documents and minute orders in Carlos Flores v. County of Los Angeles, Los Angeles Superior Court Case No. 21STCV21913 (the “Flores Action”).

Plaintiff objects to the request, arguing that judicial notice only extends to the existence of the documents but not the truth of the matters stated therein. However, Plaintiff also filed a request for judicial notice of court records in the Flores Action and other cases.

A Court may take judicial notice of court records. (Evid. Code, § 452(d).) In addition, “[a]lthough a court cannot take judicial notice of hearsay allegations in a court record, it can take judicial notice of the truth of facts asserted in documents such as orders, findings of fact and conclusions of law, and judgments. [Citation.] ‘To determine whether to preclude relitigation on collateral estoppel grounds, judicial notice may be taken of a prior judgment and other court records. [Citations.]’ [Citation]”].) (Rodgers v. Sargent Controls & Aerospace (2006) 136 Cal.App.4th 82, 90.)

Accordingly, the Court grants both parties’ requests for judicial notice.

C. Collateral Estoppel

The County demurs the first cause of action for retaliation in violation of FEHA and second cause of action for failure to prevent retaliation, arguing that (1) Plaintiff brought the same retaliation claims in the Flores action, (2) the County obtained summary judgment in that action, (3) the claim was dismissed with prejudice and, therefore, (3) the retaliation claim in this case is barred by collateral estoppel.

The Complaint alleges the following.

Plaintiff is a 63-year-old veteran who worked for County of Los Angeles Fire Department (the “Fire Department”) for 36 years. (Compl., ¶ 1.) Plaintiff took the test for Assistant Chief and passed it four times, but instead of hiring him for that position, the Department promoted younger, less experienced, less qualified, non-Hispanic, and non-disabled applicants. (Compl., ¶ 6.) In addition, even though the Fire Department eventually appointed him as an “Acting Assistant Chief,” they only did so after he filed a lawsuit (the Flores Action) and an administrative complaint with the DFEH complaining “among other things, [that the County] violated the [FEHA] in failing to promote [him] due to his age, ethnicity, and perceived disability.” (Compl., ¶ 8.) On September 1, 2021, Plaintiff succeeded in completing the Assistant Fire Chief exam, and was placed in Band 3 (out of a possible 5 bands, with 1 being the highest and 5 being the lowest). (Compl., ¶ 10.) The Department announced that it was promoting eight battalion chiefs, including four out of Band 3. (Compl., ¶ 10.) However, Flores was not one of the Band 3 battalion chiefs who was promoted; out of the four who were promoted, two were African American and none were Hispanic. (Compl., ¶ 10.) Subsequently, on March 3 and April 18, 2022, the Department’s Acting Deputy Chief Mike Inman (“Officer Inman”) began papering [Plaintiff] Flores’ personnel file with Notices of Instruction. (Compl., ¶ 11.) “Usually, such notices are non-disciplinary and are accompanied with a plan for improvement. This was not the case for [Plaintiff].” (Compl., ¶ 11.) Officer Inman, “the same officer who had been papering Flores’ personnel file,” attended Plaintiff’s deposition on April 22, 2022 in the Flores Action. (Compl., ¶ 12.) Shortly after that deposition, on May 11, 2022, the Department “removed Flores from his position of Acting Assistant Chief, reassigned Flores back to Battalion Chief, and assigned another Battalion Chief, Eugene Ramirez [“Chief Ramirez”], to the position of Acting Assistant Chief. This was clearly retaliatory, as Flores’ deposition testimony was damaging to the County.” (Compl., ¶ 12.) Indeed, “Battalion Chief Ramirez was not even banded in any examination for Assistant Chief, had expressed no desire to serve as an Assistant Chief, had never applied to be Assistant Chief, and was only asked if he would fill the position three days before his assignment. It was made patently clear that the Department intended never to promote Flores to Assistant Chief in retaliation for filing his prior lawsuit.” (Compl., ¶ 12.) The County also retaliated against him because he and his counsel exposed the County’s discriminatory practices. (Compl., ¶ 13.)

“Under the doctrine of collateral estoppel or issue preclusion, when an issue of ultimate fact has been determined by a valid and final judgment, that issue cannot be relitigated between the same parties in a future lawsuit.” (California Logistics, Inc. v. State of California (2008) 161 Cal.App.4th 242, 249.)

“Collateral estoppel precludes the relitigation of an issue only if (1) the issue is identical to an issue decided in a prior proceeding; (2) the issue was actually litigated; (3) the issue was necessarily decided; (4) the decision in the prior proceeding is final and on the merits; and (5) the party against whom collateral estoppel is asserted was a party to the prior proceeding or in privity with a party to the prior proceeding.” (Zevnik v. Superior Court (2008) 159 Cal.App.4th 76, 82.) However, “[e]ven if the minimal requirements for application of collateral estoppel are satisfied, courts will not apply the doctrine if considerations of policy or fairness outweigh the doctrine's purposes as applied in a particular case [citation], or if the party to be estopped had no full and fair opportunity to litigate the issue in the prior proceeding.” (Ibid.)

Courts determine “what was ‘actually litigated’ by looking to the pleadings and the proof.” (Ayala v. Dawson (2017) 13 Cal.App.5th 1319, 1330 (“Ayala”) [emphasis added].) “An issue is actually litigated ‘[w]hen [it] is properly raised, by the pleadings or otherwise, and is submitted for determination, and is determined....”’ [Citations.]” (Ayala, supra, 13 Cal.App.5th at p. 1330.)

Here, the County argues, among other things, that Plaintiff is estopped from relitigating the County’s promotional decisions in this action because the judge in the Flores Action already found that the County had legitimate business reasons for not promoting Plaintiff when it granted the defendant’s motion for summary judgment. Further, that the court in the Flores Action granted summary judgment even after (1) the County addressed Plaintiff’s removal as Acting Assistant Fire Chief in its motion, (2) Plaintiff included the issue in his separate statement in opposition to that motion, and (3) the judge specifically denied Plaintiff’s motion for leave to amend the operative Third Amended Complaint in that action asserting those retaliation claims. (Demurrer, p. 12:20-25.)

“In order to make out a prima facie case of age discrimination under FEHA, a plaintiff must present evidence that the plaintiff (1) is over the age of 40; (2) suffered an adverse employment action; (3) was performing satisfactorily at the time of the adverse action; and (4) suffered the adverse action under circumstances that give rise to an inference of unlawful discrimination, i.e., evidence that the plaintiff was replaced by someone significantly younger than the plaintiff.” (Sandell v. Taylor-Listug, Inc. (2010) 188 Cal.App.4th 297, 321.)

Likewise, “California cases hold that in order to establish a prima facie case of retaliation under the FEHA, a plaintiff must show (1) he or she engaged in a “protected activity,” (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer’s action.” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.)

Here, Plaintiff alleges that he “experienced retaliation and suffered adverse employment actions as he was denied promotion and removed from his position as Acting Assistant Chief due, in part, because of engaging in … protected activity [e.g., filing the Flores Action alleging discrimination].” (Compl., ¶ 19.)

In FEHA actions, “[i]f the employer presents admissible evidence [on summary judgment] either that [1] one or more of plaintiff’s prima facie elements is lacking, or [2] … the adverse employment action was based on legitimate, nondiscriminatory factors, the employer will be entitled to summary judgment unless the plaintiff produces admissible evidence which raises a triable issue of fact material to the defendant’s showing.” (Caldwell v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 203 [emphasis added].)

Here, the court in the Flores Action found that the County had met its initial burden for summary judgment by “providing legitimate reasons for not promoting plaintiff because others were better promotion candidates and that race, age and disability were not factors in the promotional decision-making process.” (The County’s RJN, Exhibit 6, p. 2, the second paragraph.)

In addition, the court found that Plaintiff failed to provide evidence showing that he was qualified for the positions, or of discriminatory animus. (The County’s RJN, Exhibit 6, pp. 2-3.)

Therefore, the promotions prior to Plaintiff being appointed Acting Assistant Chief were arguably actually litigated and barred by the collateral estoppel because the County proved that its reasons for those promotions were based on legitimate reasons.

However, there is no evidence that the court in the Flores Action considered the issue of whether the County retaliated against Plaintiff in violation of FEHA by removing Plaintiff and appointing Ramirez as Acting Assistant Chief shortly after Plaintiff was deposed in the Flores Action. Plaintiff raised that new cause of action in his motion for leave to file an amended complaint, but the Court denied the motion not because that issue was already raised in the operative Third Amended Complaint, but because “the motion [was] too late and defendant would be prejudiced.” (The County’s RJN, Exhibit 5, p. 1.)

In sum, the County has failed to show that the retaliation claims raised in the Complaint in this action were properly raised in a pleading in the Flores Action, submitted for determination, and determined.

For those reasons, the Court overrules the demurrer.

D. Conclusion

Accordingly, Defendant County of Los Angeles’s Demurrer is OVERRULED.

Moving party to give notice, unless waived.

IT IS SO ORDERED.

Dated: April 10, 2023 ___________________________________

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.