Judge Thomas D. Long, Case Number: 22STCV37283, Date: 2024-06-13 Tentative Ruling

On August 3, 2023, Plaintiff Lorraine Anda filed a first amended complaint (“FAC”) against Defendants County of Los Angeles and Jennifer Ford, alleging (1) sexual harassment in violation of the Fair Employment and Housing Act (“FEHA”); (2) retaliation in violation of FEHA; and (3) harassment and hostile work environment in violation of FEHA.

A demurrer for sufficiency 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, accepting the alleged facts as true. (Nolte v. Cedars-Sinai Medical Center (2015) 236 Cal.App.4th 1401, 1406.)

Defendant argues that Plaintiff’s FEHA claims are not pleaded with particularity. “[F]acts in support of each of the requirements of a statute upon which a cause of action is based must be specifically pled.” (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 604; see Hawkins v. TACA Internat. Airlines, S.A. (2014) 223 Cal.App.4th 466, 478 (Hawkins) [“[S]imply parroting the language of [a statute] in the complaint is insufficient to state a cause of action under the statute.”].)

A. Plaintiff Does Not Allege Enough Particular Facts For Her Claims For FEHA Sexual Harassment and Harassment/Hostile Work Environment.

To establish a claim for harassment, a plaintiff must demonstrate that: (1) she is a member of a protected group; (2) she was subjected to harassment because she belonged to this group; and (3) the alleged harassment was so severe that it created a hostile work environment. (See Aguilar v. Avis Rent A Car Sys., Inc. (1999) 21 Cal.4th 121 (Aguilar).) Whether harassment exists based upon a hostile work environment is determined by considering all of the circumstances, which may include frequency, severity, and job interference. (Miller v. Dept. of Corrections (2005) 36 Cal.4th 446, 462.) Harassment consists of “conduct outside the scope of necessary job performance, conduct presumably engaged in for personal gratification, because of meanness or bigotry, or for other personal motives.” (Reno v. Baird (1998) 18 Cal.4th 640, 646.)

“A workplace may give rise to liability when it ‘is permeated with “discriminatory [sex-based] intimidation, ridicule, and insult,” [citation], that is “sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.”’” (Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 279, quoting Harris v. Forklift Systems, Inc. (1993) 510 U.S. 17, 21.) To establish a hostile work environment, “‘[a] 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.’” (Hope v. California Youth Authority (2005) 134 Cal.App.4th 577, 588.) “‘Not all workplace conduct that may be described as “harassment” affects a “term, condition, or privilege” of employment . . . . For . . . harassment to be actionable, it must be sufficiently severe or pervasive “to alter the conditions of [the victim’s] employment and create an abusive working environment.” [Citation.]’ ” (Aguilar, supra, 21 Cal.4th at p. 130, quoting Meritor Savings Bank v. Vinson (1986) 477 U.S. 57, 67.) 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.’” (Id. at p. 131.)

Plaintiff alleges that “Ford made it clear that she expected sex from Plaintiff . . . . Ford intentionally orchestrated the meetings in the locker room to inappropriately observe Plaintiff while she was changing, naked, or getting dressed.” (FAC ¶ 29; see FAC ¶¶ 69, 81, 98.) The Court previously found that the Complaint pleaded particular facts about a November 2020 event, but there were no particular facts about other occurrences or their frequency to show a concerted pattern of harassment. The FAC adds allegations about two July 2020 events and one September 2020 event, when Ford stared at Plaintiff’s naked body and “suddenly reached out and touched Plaintiff’s shoulder while she was half-naked.” (FAC ¶ 30; see FAC ¶ 31.) These four separate occasions within four months are occasional and sporadic and are insufficient to show a concerted pattern of harassment.

As a result of Plaintiff rejecting Ford, “Ford immediately began harassing her, creating a hostile work environment, berating her, screaming at her, and mocking her on multiple occasions over many months, and initiating fake, rigged investigations into her.” (FAC ¶¶ 70, 82, 99.) “Ford was nasty and belligerent to Plaintiff on daily basis between November 2021 (when the Plaintiff made clear she would not have sex with her) and April 2022.” (FAC ¶ 100.) These allegations about harassment and hostile work environment are conclusory and do not plead specific facts.

Plaintiff also alleges that the hostile work environment “consisted of Plaintiff’s demotion, issuing three POE’s against Plaintiff, initiating a fake and rigged investigation against her, and transferring her to a less prestigious position.” (FAC ¶ 97.) These events cannot be the basis for Plaintiff’s harassment claims. Harassment does not include commonly necessary personnel management actions, such as hiring, firing, job assignments, promotion, demotion, performance evaluations, excluding from meetings, and laying off. (Thompson v. City of Monrovia (2010) 186 Cal.App.4th 860, 879.)

The demurrer to the first and third causes of action is sustained with leave to amend.

To establish a prima facie case of retaliation under 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.)

Defendant argues that Plaintiff does not allege facts showing that she engaged in a protected activity because “[h]er communication to Seargent Pinedo was cryptic, at best.” (Demurrer at p. 11.) After the November 2020 incident, “Plaintiff reported to a sergeant, Pinedo, that she was uncomfortable changing in the locker room any longer and asked for private room to change in.” (FAC ¶ 4.) “Plaintiff spoke to Sergeant Pinedo to see if she had an available locker in scheduling, where she was able to accommodate Plaintiff.” (FAC ¶ 33.) On March 31, 2021, Plaintiff told Pinedo about the sexual harassment and assault, Pinedo told Plaintiff to report it to Commander Woolum, and they reported it to Commander Woolum together. (FAC ¶¶ 6, 44.) The next day, “[i]n response, LASD immediately retaliated against Plaintiff and overnighted [Plaintiff], and two of her colleagues (like Plaintiff originally from Compton) out of the unit.” (FAC ¶ 6; see FAC ¶¶ 8, 45, 82.) Commander Woolum falsely said that Plaintiff was being punished with the transfer for “bullying and hazing” deputies. (FAC ¶ 45.) Plaintiff was later demoted. (E.g., FAC ¶¶ 16, 51, 82.) This sufficiently alleges a causal connection between Plaintiff’s March 31, 2021 report of sexual harassment and assault and the alleged retaliatory actions.

The demurrer to the first and third causes of action is SUSTAINED with 30 days’ leave to amend.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. If all parties in the case submit on the tentative ruling, no appearances before the Court are required unless a companion hearing (for example, a Case Management Conference) is also on calendar.

Hon. Thomas D. Long

Judge of the Superior Court