Judge Thomas D. Long, Case Number: 23STCV21671, Date: 2024-08-15 Tentative Ruling

On February 23, 2024, Plaintiff Maria Eugenia Tapia filed a first amended complaint (“FAC”) against Defendants Los Angeles Unified School District (“LAUSD”), Henry Ponce, and Oscar Pedroza. The FAC alleges (1) discrimination in violation of the Fair Employment and Housing Act (“FEHA”); (2) harassment in violation of FEHA; (3) retaliation in violation of FEHA; (4) failure to prevent discrimination, harassment, and retaliation in violation of FEHA; (5) failure to provide reasonable accommodations in violation of FEHA; (6) failure to engage in a good faith interactive process in violation of FEHA; (7) violation of the Ralph Civil Rights Act; (8) violation of the Tom Bane Civil Rights Act; and (9) failure to permit inspection of personnel and payroll records.

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.)

Defendants argue that Plaintiff’s FEHA claims are not pleaded with particularity. (Demurrer at p. 10.) “[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 also Baskin v. Hughes Realty, Inc. (2018) 25 Cal.App.5th 184, 207 [“Generally, ‘[w]he[n] a party relies for recovery upon a purely statutory liability it is indispensable that he plead facts demonstrating his right to recover under the statute. The complaint must plead every fact which is essential to the cause of action under the statute.’”]; Hawkins v. TACA Internat. Airlines, S.A. (2014) 223 Cal.App.4th 466, 478 [“[S]imply parroting the language of [a statute] in the complaint is insufficient to state a cause of action under the statute.”].)

1. The FAC Does Not Allege Facts for Administrative Exhaustion (FEHA Causes of Action).

Defendants argue that Plaintiff’s first six causes of action do not sufficiently allege that she exhausted her administrative remedies before bringing her FEHA claims. (Demurrer at pp. 11-12.)

An employee must file an administrative complaint with DFEH within one year after the alleged unlawful action, and he or she must file suit within one year of a right-to-sue letter. (Govt. Code, §§ 12960, 12965, subd. (b).)

Plaintiff alleges that she “has satisfied Plaintiff’s administrative prerequisites with respect to these and all related filings.” (FAC ¶ 12.) This is a legal conclusion and does not state facts showing that Plaintiff satisfied all requirements.

2. The FAC Does Not Allege Sufficient Facts About Plaintiff’s Protected Class (First, Second, and Third Causes of Action).

Defendants argue that the FAC lacks facts showing that Plaintiff was harmed because she was a member of a protected class. (Demurrer at pp. 12-18.)

Plaintiff alleges that she was discriminated against, harassed, and retaliated against due to her “gender, sex, marital status, disability and/or medical condition, real or perceived, and/or some combination of these protected characteristics.” (FAC ¶¶ 43, 52, 63.) Specifically, Plaintiff alleges that Defendant Ponce, an employee of LAUSD, sexually harassed Plaintiff through comments and physical contact, including “physically forc[ing] his body upon Plaintiff’s body, and rub[ing] his genitals on Plaintiff’s body and press[ing] his torso onto Plaintiff’s body.” (FAC ¶¶ 19-21.) As a result, Plaintiff sought medical and mental treatment for the trauma she experienced, and her “medical/mental condition affected Plaintiff’s ability to engage in the life activity of working and constituted a disability.” (FAC ¶ 24.) This sufficiently alleges a basis for her protected status. However, it does not allege facts showing that Plaintiff suffered harm because of this status.

3. The FAC Does Not Allege Sufficient Facts for Discrimination and Retaliation (First and Third Causes of Action).

Defendants argue that there was no adverse employment action or causal nexus for discrimination or retaliation. (Demurrer at pp. 14-15, 17-18.)

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.)

Plaintiff alleges that she reported Ponce’s harassment to her supervisor, “who was dismissive of Plaintiff’s complaints and did not tell Plaintiff that he would speak with PONCE, and nothing was done to stop the harassment, leading Plaintiff to believe PONCE adopted and approved of Defendant PONCE’s actions towards Plaintiff.” (FAC ¶ 22; see FAC ¶ 23.) Because Defendants did not prevent further sexual harassment, “Plaintiff could no longer tolerate the ongoing sexual harassment and hostile work environment and was constructively terminated on or about February 23, 2022.” (FAC ¶ 25.) “Defendants discriminated and retaliated against Plaintiff by creating a hostile work environment due to her complaints about sexual harassment and for fostering an adverse employment action against Plaintiff by forcing Plaintiff to work within an environment where Plaintiff’s harassment and discrimination complaints to PEDROZA were ignored and Plaintiff was harassed by PONCE's acts of staring at Plaintiff in a menacing and taunting manner and thereby constructively, and wrongfully terminating Plaintiff.” (FAC ¶ 26.) These allegations of discrimination and retaliation are conclusory and lack specific facts.

The demurrer to the first and third causes of action is sustained on this ground.

4. The FAC Does Not Allege Harassment by Defendant Pedroza (Second Cause of Action).

Defendants argue that Defendant Pedroza cannot be liable for harassment. (Demurrer at pp. 16-17.)

Pedroza was an employee of LAUSD and Plaintiff’s supervisor. (FAC ¶¶ 5, 20, 22.) Plaintiff reported her complaints of harassment to Pedroza, who did not act on the complaints. (FAC ¶ 22.)

“A supervisor who, without more, fails to take action to prevent sexual harassment of an employee is not personally liable as an aider and abettor of the harasser, an aider and abettor of the employer or an agent of the employer. A supervisor does not aid and abet a harasser by mere inaction.” (Fiol v. Doellstedt (1996) 50 Cal.App.4th 1318, 1331.)

Failure to prevent discrimination, harassment, or retaliation in violation of FEHA requires that (1) the plaintiff was an employee of defendant; (2) the plaintiff was subjected to discrimination, harassment, or retaliation in the course of employment; (3) the defendant failed to take all reasonable steps to prevent the discrimination, harassment, or retaliation; (4) the plaintiff was harmed, and (5) the defendant’s failure to take all reasonable steps to prevent discrimination, harassment, or retaliation was a substantial factor in causing plaintiff’s harm. (CACI 2527; see Gov. Code, § 12940, subd. (k).)

Because the Court sustains the demurrer to the underlying causes of action for discrimination, harassment, or retaliation, the demurrer to the fourth cause of action is also sustained. (See Demurrer at pp. 18-19; Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th 280, 289.)

6. The FAC Lacks Facts for Failure to Accommodate (Fifth and Sixth Causes of Action).

Defendants argue that “Plaintiff provides a blanket statement that Defendants failed to properly engage in a good faith interactive process but failed to pled facts what accommodations Plaintiff requested from LAUSD.” (Demurrer at pp. 19-20.)

“The essential elements of a failure to accommodate claim are: (1) the plaintiff has a disability covered by the FEHA; (2) the plaintiff is a qualified individual (i.e., he or she can perform the essential functions of the position); and (3) the employer failed to reasonably accommodate the plaintiff's disability. [Citation]” (Cuiellette v. City of Los Angeles (2011) 194 Cal.App.4th 757, 766.) “Two principles underlie a cause of action for failure to provide a reasonable accommodation. First, the employee must request an accommodation. [Citation.] Second, the parties must engage in an interactive process regarding the requested accommodation and, if the process fails, responsibility for the failure rests with the party who failed to participate in good faith. [Citation.] While a claim of failure to accommodate is independent of a cause of action for failure to engage in an interactive dialogue, each necessarily implicates the other. [Citation.]” (Moore v. Regents of University of California (2016) 248 Cal.App.4th 216, 242.)

Plaintiff alleges that she sought medical and mental treatment for the trauma she experienced. (FAC ¶ 24.) “Because Employer Defendants provided no environment wherein Plaintiff would not be subjected to further sexual harassment, personal safety threats and intimidation by Defendant PONCE, Plaintiff could no longer tolerate the ongoing sexual harassment and hostile work environment and was constructively terminated on or about February 23, 2022.” (FAC ¶ 25.) There are no further facts about Plaintiff’s requests for accommodations. (See FAC ¶¶ 77, 84.)

B. The FAC Does Not Sufficiently Allege a Violation of the Ralph Act (Seventh Cause of Action).

The Ralph Act provides, “All persons within the jurisdiction of this state have the right to be free from any violence, or intimidation by threat of violence, committed against their persons or property because of political affiliation, or on account of any characteristic listed or defined in subdivision (b) or (e) of [Cvil Code] Section 51, or position in a labor dispute, or because another person perceives them to have one or more of those characteristics.” (Civ. Code, § 51.7, subd. (b)(1).) The statute is a “hate crimes” statute, and thus it requires violence or a threat of violence. (Ramirez v. Wong (2010) 188 Cal.App.4th 1480, 1486.) .) “There can be no ‘threat of violence’ without some expression of intent to injure or damage plaintiffs or their property.” (Ibid.) “Under the Ralph Act, a plaintiff must establish the defendant threatened or committed violent acts against the plaintiff or their property, and a motivating reason for doing so was a prohibited discriminatory motive, or that the defendant aided, incited, or conspired in the denial of a protected right.” (Gabrielle A. v. County of Orange (2017) 10 Cal.App.5th 1268, 1291.)

Defendants argue that Plaintiff does not allege “an act of physical ‘destructive’ violence.” (Demurrer at p. 20.) Plaintiff alleges that Defendant Ponce violated the Ralph Act through his “violence, and/or intimidation by threats of violence against their person on account of Plaintiff’s sex and/or gender.” (FAC ¶ 90.) This included Ponce “repeatedly touch[ing] or hold[ing] Plaintiff’s hand and press[ing] on Plaintiff’s fingers and other parts of her body,” and “physically forc[ing] his body upon Plaintiff’s body, and rub[ing] his genitals on Plaintiff’s body and press[ing] his torso onto Plaintiff’s body.” (FAC ¶¶ 19-20.) This sufficiently alleges violence that could harm Plaintiff. Defendants provide no authority for a requirement of “physical ‘destructive’ violence.” The demurrer is overruled on this ground.

Defendants also argue that “Plaintiff has not, and cannot, sufficiently allege facts to show that PONCE’s alleged actions because he was biased against or had an animus against women.” (Demurrer at p. 21.) As discussed with the first three causes of action, the FAC does not allege facts showing that Plaintiff suffered harm because of her status.

C. The FAC Does Not Sufficiently Allege a Violation of the Bane Act (Eighth Cause of Action).

The Bane Act allows an individual to sue for damages if a person “interferes by threat, intimidation, or coercion, or attempts to interfere by threat, intimidation, or coercion, with the exercise or enjoyment by any individual or individuals of rights secured by the Constitution or laws of the United States, or of the rights secured by the Constitution or laws of this state . . .”¿¿(Civ. Code, § 52.1, subd. (b).)¿¿“‘The essence of a Bane Act claim is that the defendant, by the specified improper means (i.e., ‘threat[], intimidation or coercion’), tried to or did prevent the plaintiff from doing something he or she had the right to do under the law or to force the plaintiff to do something that he or she was not required to do under the law.’¿¿[Citation.]”¿¿(King v. State of California¿(2015) 242 Cal.App.4th 265, 294.) “The statutory framework of section 52.1 indicates that the Legislature meant the statute to address interference with constitutional rights involving more egregious conduct than mere negligence,” and “[t]he act of interference with a constitutional right must itself be deliberate or spiteful.” (Shoyoye v. County of Los Angeles (2012) 203 Cal.App.4th 947, 958-959.)

Defendants argue that there are no factual allegations that Ponce prevented Plaintiff from doing something she had a right to do under the law or forced her to do something that she was not required to do under the law. (Demurrer at pp. 21-22.)

Plaintiff alleges that she “had the right to lawful employment free from violence, threats of violence and intimidation, as well as the right to report to their employer and/or protest discriminatory and harassing conduct of Plaintiff based upon her sex and/or gender, and in the peaceable exercise or enjoyment thereof to be free from interference by threats, intimidation, or coercion, or attempts to interfere by threats, intimidation, or coercion.” (FAC ¶ 98.) Defendant Ponce “repeatedly interfered with, or attempted to interfere with Plaintiff’s peaceable exercise and enjoyment of said rights by threats, intimidation, or coercion.” (FAC ¶ 99.) This sufficiently alleges Plaintiff’s rights and Ponce’s interference.

However, for the reasons discussed above, Plaintiff does not sufficiently allege that any wrongful conduct was due to Plaintiff’s protected status. The demurrer to the eighth cause of action is sustained on this ground.

Defendants argue that Plaintiff “failed to attach any exhibits that demonstrate she requested copies of her personnel records,” and she “failed to allege, or attach any exhibits to establish, she made any requests to the District’s Employee Relations Section.” (Demurrer at pp. 22-23.)

Plaintiff alleges that on March 31, 2022, she made a written request to inspect or receive a copy of her personnel and payroll records from Defendants, but Defendants failed and refused to permit Plaintiff’s inspection. (FAC ¶¶ 107-108.) Plaintiff is not required to include evidence with her complaint.

The demurrer to the first through eighth 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