Judge Upinder S. Kalra, Case 20STCV21376 2022-08-02 Tentative Ruling

1. If you wish to submit on the tentative ruling, please email the clerk at SMCdept51@lacourt.org (and “cc” all other parties in the same email) and notify all other parties in advance that you will not be appearing at the hearing. Include the word "SUBMISSION" in all caps in the subject line and include your name, contact information, the case number, and the party you represent in the body of the email. If you do not have access to the internet, you may call the clerk at (213) 633-0351.

If you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear and argue the motion, and the Court may decide not to adopt the tentative ruling. Please note that the tentative ruling is not an invitation, nor an opportunity, to file any further documents relative to the hearing in question which are not authorized by statute or Rule of Court.

2. For any motion where no parties submit to the tentative ruling in advance, and no parties appear at the motion hearing, the Court may elect to either adopt the tentative ruling or take the motion off calendar, in its discretion.

3. DO NOT USE THE ABOVE EMAIL FOR ANY PURPOSE OTHER THAN TO SUBMIT TO A TENTATIVE RULING. The Court will not read or respond to emails sent to this address for any other purpose.

Plaintiff Laura Michelle Spadaro (“Plaintiff”) filed a complaint against Defendants County of Los Angeles (“County”), County of Los Angeles Sheriffs Department (“Sheriff’s Department”), Simeon Daniels, Juan Alverez, Sydney Crocket, Lance Verdugo, and Steve Sheridan. (“Defendants”) on June 8, 2020. The complaint is based on allegations that Plaintiff suffered discrimination and harassment due to her gender while employed with the Sheriff’s department.

The First Amended Complaint was filed on August 3, 2021 alleging twelve causes of action The Defendants demurred, and the Court SUSTAINED, in part, and OVERRULED, in part.

The Second Amended Complaint was filed on January 7, 2022 alleging nine causes of action. The Defendants demurred. On March 15, 2022, the Court SUSTAINED, in part, and OVERRULED, in part. As to the first, second, eighth and ninth causes of action, and the third, fourth, fifth and seventh causes of action as to the INDIVIDUAL Defendants, the Demurrer was sustained without leave to amend. As to the remaining causes of actions, the court granted leave to amend with the following admonishment that the Third Amended Complaint “should address all the pleading decencies once and for all.

The Third Amended Complaint (“TAC”) was filed on April 11, 2022. The TAC alleges seven[1] causes of action in the CAPTION but only alleges the following five causes of action in the body of the TAC: (1) Unlawful Discrimination based on Disparate Action in Violation of Fair Employment and Housing Act (“FEHA”), (2) Retaliation in Violation of FEHA, (3) Discrimination based on Gender in Violation of FEHA, (4) Harassment based on Gender in Violation of FEHA, (5) Failure to Prevent Discrimination/Harassment/Retaliation under FEHA.,

The Defendants filed the current Demurrer on April 21, 2022. Plaintiff’s opposition was filed late, on July 20, 2022.

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. Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228. 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 747.

Defendants demur on multiple grounds. First, the first five causes of action are barred and not within the applicable statute of limitations. Second, the Plaintiff’s DFEH complaint does not name Defendants Sheridan, Valera, and Zapata. Third, the first, second, third, and fifth causes of action fails to state sufficient facts constitute a cause of action. Lastly, the sixth and seven causes of action are improperly pled.

In the March 15, 2022 order sustaining the Demurrer to the SAC with leave to amend, the court noted that Plaintiff failed to allege facts to establish that her claims are not barred by the statute of limitations. Under Government Code 12960 when this matter was filed (prior to the January 1, 2020 change), employees had one year from the date they were harassed to file a complaint with the California Department of Fair Employment and Housing, and then one year to file a lawsuit after obtain the right to sue letter. It was undisputed that Plaintiff filed a claim with DFEH in March 2019. Defendant contended, and the court agreed, that the SAC failed to plead facts after 2017. The court granted leave to amend to allege facts bringing the claims within the statute of limitation i.e., within the year prior to the March 2019 claim with DFEH.

Defendants contend that once again, the TAC does not plead sufficient harmful conduct within the applicable statute of limitations. While the TAC acknowledges Plaintiff filed a claim with DFEH in March 2019 and obtained her right to sue letter on June 11, 2019 (TAC ¶¶66, 67), and the TAC has a header titled “2015 through the Present – Events of Harassment, Discrimination, and Retaliation,” the complaint does not allege any facts regarding conduct after 2017.[2]

Plaintiff argues in her opposition that equitable tolling makes her complaint timely. There are no facts supporting equitable tolling her TAC. Nonetheless, Plaintiff contends that the statute of limitations was tolled because the Los Angeles Sheriff’s department closed its investigation on January 15, 2020. Plaintiff points to a denial letter that is attached to the opposition as Exhibit 2. However, demurrers look only to the face of the pleading and any documents that have been judicially noticed. A demurrer looks at the face of the pleadings and accepts all facts as true. “The demurrer tests the pleading alone and not the evidence or other extrinsic matters which do not appear on the face of the pleading or cannot be properly inferred from the factual allegations of the complaint.” (Executive Landscape Corp. v. San Vicente Country Villas IV Assn. (1983) 145 Cal.App.3d 496, 499). This denial letter is an extrinsic matter and nowhere pled in the TAC, which it could have been since it was sent in January 2020, and the first complaint was filed in June 2020. Even in the argument section of the opposition, there is not even a suggestion that when this complaint was made, what was the subject of the complaint. Second, Plaintiff argues that the statute of limitations was tolled because she filed a worker’s compensation claim in 2018 for an auto accident. Plaintiff did not plead any of these facts in the TAC. Even if she did, it would make no difference.

On April 14, 2017, Plaintiff was on her way to an ESS (Employee Support Services) appointment when she was in a car accident. Defendant argues in her opposition that this worker’s compensation claim filed March 13, 2018 was “directly linked to her employment with Defendant county and related back to this current lawsuit since she was on her way to an Employment Support Service appointment when she was violently rear ended and sustained severe injuries.” (Opp. 7: 1-3). In support of this claim that worker’s compensation claim tolled the statute of limitations, Plaintiff cites to Brome v. California Highway Patrol (2020) 44 Cal.App.5th 786. Plaintiff misconstrues the holding of Brome.

In Brome, the Court determined that an action may be tolled if the Plaintiff can establish “three elements: ‘timely notice, and lack of prejudice, to the defendant, and reasonable and good faith conduct on the part of the plaintiff.’” (Brome v. California Highway Patrol (2020) 44 Cal.App.5th 786, 795). As Defendant correctly argues, Plaintiff has failed to establish these three elements. To satisfy timely notice “filing of the first claim must alert the defendant in the second claim of the need to begin investigating the facts which form the basis for the second claim.” (Id.). In Brome, the Plaintiff filed a worker’s compensation claim, and asserted a work-related stress injury. Here, the Plaintiff alleged filed a worker’s compensation claim because she was in a car accident. While she may have been on the way to an ESS appointment, her worker’s compensation claim would not have given proper notice, like in Brome, where the Defendant would have needed to investigate the second matter, i.e., the discrimination. “To determine whether Brome’s stress was work-related, the Patrol would have needed to investigate the circumstances that caused him stress.” (Id.). As for the prejudicial element, this does not require identical claims but “whether the facts are similar enough that an investigation of one claim will allow collection and preservation of evidence concerning the other.” (Id. at 797). In Brome, the Plaintiff claim was work-related stress. Therefore, the Defendant could have and should have investigated why there was work related stress. Here, the Plaintiff got into a car accident. This type of incident would not have similar facts enough that the Defendant would collect and preserve evidence, and would therefore prejudice the Defendant.

Previously, this Court indicated to the Plaintiff that the incidents in the Second Amended Complaint did not allege any incidents and the only specific date was July 10, 2017. (Minute Order 3/15/2022). This TAC has not cured these defects. The only incidents that alleged to have taken place after 2017 is the worker’s compensation claim. Again, this court stated that the amendment should “make clear the periods of time during which the alleged misconduct occurred.” While the TAC does have headers with dates starting in 2013, nothing is alleged to have happened after 2017.

As such, the first, second, third, fourth, and fifth causes of action all fail as they are outside of the applicable statute of limitations.

[1]The court in its March 15, 2022 order sustained without leave to amend the eighth and ninth causes of action in the SAC which mirror the purported sixth and seventh causes of action in the TAC. ((6) Violation of Whistleblower Statute (Labor Code § 1102.5), and (7) Intentional Infliction of Emotional Distress.)

[2]This section does allege that Defendant Robles was nicknamed “The Legend” in 2017. (TAC ¶ 62).