Judge Upinder S. Kalra, Case 22STCV34926 2023-04-18 Tentative Ruling

On November 2, 2022, Plaintiff Ryan Stewart (“Plaintiff”) filed a complaint against Defendant Camino Nuevo Charter Academy (“Defendant.”) The complaint alleges that Plaintiff, a gay, African American male, has been employed by Defendant since 2014. In May 2022, Plaintiff accompanied a student’s family on a personal trip. In June 2022, Plaintiff was informed he was being investigated for violating school policy, even though Plaintiff alleges that various other staff members attend off campus events with students. Plaintiff, after pointing this out, was told it was different “because he was a man – referencing that he was an openly gay man.” Plaintiff filed a formal complaint on July 7, 2022, and was subsequently terminated the same day.

On January 20, 2023, Defendant filed a Demurrer without a Motion to Strike. Plaintiff’s Opposition was filed on April 5, 2023. Defendant’s Reply was filed on April 10, 2023.

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. 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. …. 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 147 Cal.App.4th at 747.)

Prior to filing a demurrer, the demurring party is required to satisfy their meet and confer obligations pursuant to Code of Civ. Proc. §430.41, and demonstrate that they so satisfied their meet and confer obligation by submitting a declaration pursuant to Code of Civ. Proc. §430.41(a)(2) & (3). In the Declaration of Bill R. Hopkins, it states that the meet and confer efforst took place on November 14, 2022, December 1, 2022, and January 17-19, 2023, but the parties were unable to resolve the matter. (Dec. Hopkins ¶ 2.)

The Court may take judicial notice of the existence of the records, but not the truth of matters asserted in such records. (Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1565). As a result, although the court may take judicial notice that the documents exists, the Court may not take judicial notice of the truth of the facts in the documents.

Additionally, Evidence Code only allows the Court to take judicial notice of certain types of documents. The court may take judicial notice of “official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States,” “[r]ecords of (1) any court of this state or (2) any court of record of the United States or of any state of the United States,” and “[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (Evid. Code § 452, subds. (c), (d), and (h).) The Evidence Code does not allow the Court to take judicial notice of discovery responses or parts of cases, such as depositions.

1. Defendant Camino Nuevo Charter Academy’s Request for Admissions and Genuineness of Documents, Set One

2. Plaintiff’s January 17, 2023, Responses to those Request for Admissions (mislabeled in Plaintiff’s caption as Responses to Special Interrogatories, Set One)

Defendant argues that the first cause of action fails because Plaintiff failed to allege sufficient facts to constitute a cause of action. Specifically, Plaintiff did not allege facts that would constitute an adverse action or that there was any discriminatory motive.

Plaintiff argues that the first cause of action is sufficiently plead. The complaint states that Plaintiff is an openly, gay, African American male, he has worked for 8 years, was terminated, and the termination was based ff his complaints. Moreover, the Complaint also states that Plaintiff was told that his situation looked different because he was a man. (Comp. ¶ 7-9, 13-15.)

To establish a claim for discrimination in violation of FEHA, the plaintiff must generally prove that (1) he or she was a member of a protected class; (2) that he or she was qualified for the position he or she sought or was performing competently in the position he or she held; (3) that he or she suffered an adverse employment action, such as termination, demotion, or denial of an available job; and (4)¿some other circumstance suggesting¿discriminatory motive. (See¿Guz v. Bechtel National, Inc.¿(2000) 24 Cal.4th 317, 355.)¿

After a review of the complaint, the Court finds that Plaintiff has sufficiently alleged a cuase of action for discrimination. The complaint alleges that (1) Plaintiff was part of a protected class – gay, African American male (Comp. ¶ 8), (2) he was qualified to do his job – he had been working for Defendant since 2014 (Comp. ¶ 7), (3) he suffered an adverse employment action – he was terminated (Comp. ¶ 15), and (4) there are circumstances that suggest discriminatory motive – other staff members attended off campus activities with students and was told “it looked different when he attended events, because he was a man” (Comp ¶ 12-13.) This is sufficient for a cause of action for discrimination.

To state a claim for retaliation under FEHA, a plaintiff must show that (1) the plaintiff engaged in a FEHA-protected activity, (2) the plaintiff was subject to an adverse employment action, and (3) there is a causal link between the protected activity and the adverse employment action. (Yanowitz¿v.¿L’Oreal¿USA, Inc.¿(2005) 36 Cal.4th 1028, 1042.)¿The protected activity may be established by the fact the plaintiff threatened to file a discrimination charge, that the plaintiff reasonably and sincerely believed he or she was opposing discrimination, or that the employer knew the employee was opposing the employer at the time of the retaliation. (Id. at 1046-48;¿see¿also¿Iwekaogwu¿v. City of Los Angeles¿(1999) 75 Cal.App.4th 803, 814-15;¿Flait¿v. North American Watch Corp.¿(1992) 3 Cal.App.4th 467, 477.)

Defendant argues that this cause of action fails to state sufficient facts to constitute a cause of action. Specifically, Defendant argues that in Plaintiff’s Request for Admissions, which were included in the Request for Judicial Notice, demonstrate that Plaintiff cannot show a causal link between the protected activity and the action because Plaintiff, in RFA No. 2 indicate that Plaintiff was “already on notice of the termination, prior to July 7, 2022.” (Demurrer 11: 3-5.) Therefore, there is no adverse action because his protected activity occurred after notice of the adverse employment action.

Plaintiff argues that the Complaint sufficiently alleges a cause of action for retaliation. The complaint indicates that Plaintiff was told that the investigation into his actions was different because he was a man, and after formally filing a complaint, he was immediately fired.

After a review of the complaint, the Court finds that the third cause of action is sufficiently pleaded. Defendant’s use of RFAs is permissible, but the Court finds that it is immaterial at the present moment. The Court in Del E. Webb Corp. stated the following:

As a general rule in testing a pleading against a demurrer the facts alleged in the pleading are deemed to be true, however improbable they may be. The courts, however, will not close their eyes to situations where a complaint contains allegations of fact inconsistent with attached documents, or allegations contrary to facts which are judicially noticed. Thus, a pleading valid on its face may nevertheless be subject to demurrer when matters judicially noticed by the court render the complaint meritless. In this regard the court passing upon the question of the demurrer may look to affidavits filed on behalf of plaintiff, and the plaintiff's answers to interrogatories, as well as to the plaintiff's response to request for admissions. The court will take judicial notice of records such as admissions, answers to interrogatories, affidavits, and the like, when considering a demurrer, only where they contain statements of the plaintiff or his agent which are inconsistent with the allegations of the pleading before the court. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604–605.)

Here, Defendant points the Court to RFAs Nos. 2 and 6, for the proposition that there is no causal link because Plaintiff admitted to “appealing his termination” via this email on June 30, 2022. However, Plaintiff admits, in part, and denies, in part the RFA No. 2. Which part is he admitting to? It is unclear at this time and the Court will not speculate as such. Additionally, RFA No. 1 asks Plaintiff to admit that he received notice prior to his termination on July 7, 2022, but Plaintiff denied this RFA. Thus, Defendant is seeking to ask the court to weigh the evidence, which is inappropriate for a demurrer. Moreover, the Court finds that he complaint sufficiently alleges retaliation: Plaintiff filed a formal complaint (Comp. ¶ 14), he was fired the same day (Comp. ¶ 15), and there was a causal link as Plaintiff was immediately fired the same day as this formal complaint.

To state a claim for the failure to prevent discrimination, harassment, and retaliation, a plaintiff must show that (1) the plaintiff was subjected to discrimination, harassment, and retaliation, (2) the employer failed to take all reasonable steps to prevent discrimination, harassment, and retaliation, and (3) the employer’s failure caused the plaintiff to suffer injury, loss, harm, or damage. (Lelaind v. City and County of San Francisco (N.D. Cal. 2008) 576 F.Supp.2d 1079, 1103). But if the plaintiff cannot establish the underlying discrimination, harassment, or retaliation, such claim must fail. (Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th 280, 287-89 (there can be no cause of action for a failure to prevent what did not occur)).

Defendant argues this cause of action only survives if the underlying discrimination or retaliation claim is valid. However, because Plaintiff’s causes of action for retaliation and discrimination fail, so does this cause of action.

Plaintiff argues that this case of action is sufficiently pleaded because the Complaint sufficiently alleges both a cause of action for discrimination and retaliation.

Because the Court has determined that the 1^st and 3^rd causes of action for discrimination and retaliation have been sufficiently alleged, this cause of action has as well.

Fourth Cause of Action: Wrongful Termination in Violation of Government Code § 12940 et seq.

Government Code § 12940 states that it unlawful employment practice (a) for an employer, because of the race…sexual orientation…to discharge the person from employment…or to discriminate against the person…” Further, subsection (c), it is unlawful employment practice for any person to discriminate against any person in the selection, termination… because of the race…sexual orientation…”

As above, the Court has determined that this causes of action are sufficient for claims of discrimination and retaliation. Thus, the Complaint satisfactorily pleads a claim for wrongful termination under Government Code § 12940.

To state a claim for wrongful termination in violation of public policy, a plaintiff must be able to show that (1) the plaintiff was employed by the defendant, (2) the defendant discharged the plaintiff, (3) the violation of public policy was a substantial motivating reason for the plaintiff’s discharge, and (4) the discharge caused the plaintiff harm. (Haney v. Aramark Uniform Services, Inc. (2004) 121 Cal.App.4th 623, 641; CACI 2430). There are four requirements that a policy must meet in order to support a wrongful discharge claim: (1) the policy is supported by either constitutional or statutory provisions; (2) the policy is “public” in that it “inures to the benefit of the public” and not merely the interests of the individual; (3) the policy was articulated at the time of the discharge; and (4) the policy is “fundamental” and “substantial.” (Franklin v. Monadnock Co. (2007) 151 Cal.App.4th 252, 258). When the plaintiff cannot establish a violation of the statutory scheme, the claim for wrongful termination in violation of public policy must fail. (Sequoia Insurance v. Superior Court (1993) 13 Cal.App.4th 1472, 1475).

Defendant argues that this cause of action is predicated on the same allegations in the preceding causes of action. Thus, it fails.

As the Court previously stated, the Complaint sufficiently alleges a cause of action for discrimination and retaliation. Thus, the Complaint sufficiently alleges a claim for wrongful termination.

Labor Code § 1102.5(a) states that “(a) An employer, or any person acting on behalf of the employer, shall not make, adopt, or enforce any rule, regulation, or policy preventing an employee from disclosing information to a government or law enforcement agency, to a person with authority over the employee, or to another employee who has authority to investigate, discover, or correct the violation or noncompliance, or from providing information to, or testifying before, any public body conducting an investigation, hearing, or inquiry, if the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation, regardless of whether disclosing the information is part of the employee's job duties.”

Labor Code §1102.5(b) states that “An employer, or any person acting on behalf of the employer, shall not retaliate against an employee . . . because the employer believes that the employee . . . may disclose information, to a government or law enforcement agency, . . . if the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation, regardless of whether disclosing the information is part of the employee’s job duties. Labor Code §1102.5(d) states “An employer, or any person acting on behalf of the employer, shall not retaliate against an employee for having exercised his or her rights under subdivision (a), (b), or (c).”

Defendant argues that Plaintiff must establish that retaliation was a contributing factor in the termination. Here, Defendant argues that because Plaintiff’s protected activity occurred after he was on notice of his termination, a retaliation claim does not survive. This cause of action is again predicated on the same grounds for the above causes of action.

As the Court stated as it relates to the retaliation cause of action, Plaintiff’s Complaint sufficiently alleges a cause of action for retaliation. Thus, this cause of action survives.

[1] The second cause of action is based on both discrimination and retaliation causes of action, and therefore will be analyzed after the first and third causes of action.