Judge Upinder S. Kalra, Case 22STCV3529 2023-04-17 Tentative Ruling

1. An
order sustaining the demurrer as to the 3^rd and 4^th cause
of action of the complaint.

2. An
order striking various portions of the complaint that are irrelevant and
request punitive damages.

On November 3, 2022, Plaintiff Reginald (“Plaintiff”) filed
a complaint against Defendants
County of Los Angeles and Richard Mejia (“Defendants.”) the complaint alleged
five causes of action: (1) Racial Discrimination in Violation of FEHA, (2)
Failure to Take all Reasonable Steps to Prevent Discrimination in Violation of
FEHA, (3) Harassment and Hostile Work Environment in Violation of FEHA, (4)
Retaliation in Violation of FEHA, and (5) Unlawful Retaliation. The complaint
alleges that Plaintiff, a Sergeant employed by the County of Los Angeles was
harassed and denied promotions due to his race. Plaintiff also alleges that he
was harassed due to being a whistleblower.

On January 20,
2023, Defendant County of Los Angeles filed a Demurrer with a Motion to Strike.
Plaintiff’s Opposition was filed on April 3, 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.)

The court may, upon a motion, or at
any time in its discretion, and upon terms it deems proper, strike any
irrelevant, false, or improper matter inserted in any pleading. (Code Civ.
Proc., § 436(a).) The court may also strike all or any part of any pleading not
drawn or filed in conformity with the laws of this state, a court rule, or an
order of the court. (Id., § 436(b).)
The grounds for moving to strike must appear on the face of the pleading or by
way of judicial notice. (Id. § 437.) “When
the defect which justifies striking a complaint is capable of cure, the court
should allow leave to amend.” (Vaccaro v.
Kaiman (1998) 63 Cal.App.4th 761, 768.)

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). The Declaration of
Brian Dworetzky indicates that tried to call Plaintiff’s counsel on January 13,
2023, but was unable to reach anyone. Defendant’s counsel then emailed
Plaintiff’s counsel to meet and confer about the claims to be address in the
demurrer.

1.
Third
Cause of Action: Harassment and Hostile Work Environment in Violation of FEHA

Defendant argues that the third cause of
action fails to state sufficient facts to constitute a cause of action for
harassment and hostile work environment. Specifically, Defendant argues that
Plaintiff refers to other instances of alleged harassment against other
Caucasian and other African Americans. (Demurrer 8: 21-22, Complaint ¶¶ 10-15,
23-23, 45-47, 77-79.) Additionally, Defendant argues that the other alleged
instances of harassment were not related to Plaintiff’s “protected status
as an African American and were not pervasive or severe as pleaded.” (Id. at 25-26.) For example, other
alleged instances stated Plaintiff was mentally ill (Comp. ¶ 55), called him
“Big Guy” (Comp. ¶ 44), called him a “rat” (Comp. ¶ 61.) Defendant argues that actions
are “minor or relatively trivial adverse actions.”

Plaintiff
argues that the Complaint contains sufficient facts to support a cause of
action for harassment. The Complaint states that Plaintiff was in a protected
class, was subjected to harassment based on that class, and the harassment
created a hostile work environment. Plaintiff alleges that Captain Mejia
subjected him to hostile environment for over two years. This included
overworking, overextending, and underfunding his team, weaponized the
counseling services, mocked Plaintiff, blocked Plaintiff’s earned promotions.
Plaintiff alleges that he reported racial discrimination, and was then
retaliated against.

Government Code section 12940,
subdivision (j)(1) prohibits harassment of an employee “because of race,
religious creed, color, national origin, ancestry, physical disability, mental
disability, medical condition, genetic information, marital status, sex,
gender, gender identity, gender expression, age, sexual orientation, or
military and veteran status.” (Gov. Code § 12940, subd. (j)(1).) The
elements of a cause of action for harassment under FEHA are: 1) plaintiff
belongs to a protected group; (2) plaintiff was subject to harassment; (3) the
harassment complained of was based on the plaintiff’s membership in the
protected group; (4) the harassment complained of was sufficiently pervasive so
as to alter the conditions of employment and create an abusive working
environment; and (5) respondeat superior. (Jones v. Department of Corrections & Rehabilitation (2007)
152 Cal.App.4th 1367, 1377; CACI No. 2521A.)

After
a review of the Complaint, the Court finds that Plaintiff has sufficiently
alleged a cause of action for harassment. The complaint alleges that Plaintiff
was in a protected class as he is African American. (Comp. ¶ 31, 108, 134,
137.) Additionally, the complaint states that Plaintiff suffered adverse employment
as he was repeatedly passed over for promotions, referred Plaintiff to
psychological services, took away valuable resources, such as manpower. (Comp.
¶¶ 56, 88, 96, 139.) This harassment was due to Plaintiff’s race as he was not
promoted despite being qualified and other Hispanic males with less work
experience have been promoted. (Comp. ¶ 95.) Lastly, this type of misconduct,
such as calling psychological services, reducing manpower, and promoting
unqualified individuals would create an abusive working environment. (Comp. ¶
144.)

Defendant argues that this cause
of action fails. Specifically, the complaint alleges that Plaintiff spoke with
IAB about racially discriminatory treatment in early 2020, but was passed over
for the promotion in April 2020. Therefore, Defendant argues that several
months passed and therefore there is no causal link. (Demurrer 10: 1-8.)

Plaintiff argues that this cause of
action is sufficient. The complaint states that Plaintiff engaged in protected
activities by reporting to the County leadership about LASD deputies’
misconduct. Plaintiff filed POE’s for other officers based on their treatment
from the “deputy gang the Banditos.” (Opp. 12: 7-9.)[1]

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.)

After a review of the complaint,
the Court finds that Plaintiff has sufficiently alleged a cause of action for
Retaliation. First, the Plaintiff reported misconduct to superiors, such as
filing a POE of other officers. (Comp. ¶ 77.) After this reporting this
misconduct, Plaintiff was denied promotions despite being qualified for these.
(162.) Lastly, there is a link between Plaintiff’s reporting of Bandito gang
activity, conduct towards Deputy Coyle (a Caucasian male deputy), and as a
result of those reports, 17 alleged Banditos members were transferred, and with
Plaintiff’s continued denial of earned promotions to detective sergeant and
lieutenant. (¶ 170-171.)

1.
Page
2, Paragraph 2, lines 16 through 19, “From previous Sheriff Lee Baca (sentenced
to prison) and Undersheriff Paul Tanaka (sentenced to prison) to the current
Sheriff Alex Villanueva, LASD has held itself out as above the law and immune
to accountability, with leadership operating with the lack of transparency and
audacity of a third world dictatorship and evading oversight.”

4.
Page
4, Paragraph 9, Lines 16 through 17, “In the same interview, Villanueva lied
that the ‘overwhelming majority’ of those assaulting Asian victims of hate
crimes are ‘black.’”

12.
Page
32, Paragraph 120, lines 13 through 14, “and were willful, malicious,
fraudulent, and oppressive.”

13.
Page
38, Paragraph 150, lines 22 through 23, “and were willful, malicious,
fraudulent, and oppressive.”

14.
Page
41, Paragraph 164, lines 11 through 12, “and were willful, malicious,
fraudulent, and oppressive.”

15.
Page
43, Paragraph 176, lines 14 through 15, “and were willful, malicious,
fraudulent, and oppressive.”

Numbers 1 through 11 concern paragraphs in
the statement of facts. Numbers 12 through 15 concern punitive damages.

Defendant argues
these portions should be stricken as they are irrelevant, does not tend to
prove that Plaintiff should have been promoted, were not performed in relation
to Plaintiff, contain opinion of Plaintiff’s counsel, and do not contain
factual allegations.

Plaintiff argues
that these portions contain facts and are directly relevant as they tend to
show that other employees in the LASD expressed racism against African
Americans.

The Court finds that some of the
portions are improper, and are irrelevant to the claims raised by Plaintiff.
These include portion Nos. 2, 3, 10. However, the rest of the portions are relevant
as they provide information and factual allegations as to the inner workings of
the LASD and provide a basis to the allegations of racism and hostile work
environments.

Motion to Strike is GRANTED, as
to Nos. 2, 3, 10, and DENIED, as to Portions 1, 4-9, 11.

Defendant
argues that these portions, which include “willful, malicious, fraudulent, and
oppressive,” are a claim for punitive damages. However, under Section 818 of
the Tort Claims Acts, a public entity is not liable for damages under Civil
Code § 3294. (Gov. Code, § 818.)

Plaintiff argues that they can get
punitive damages against the individual defendant and “he does not plead them
against the County.” (Opp. 10: 5-6.)

The Court finds Plaintiff’s
argument that it was not plead against the County incorrect. Looking at the
Complaint, the paragraphs that contain this language, “willful, malicious,
fraudulent, and oppressive” are under the 1^st, 3^rd, 4^th,
and 5^th causes of action. However, each one of those causes of
action is alleged solely against Defendant County of Los Angeles (1^st,
4^th, and 5^th) or with Defendant Richard Meija (3^rd.)
Contrary to Plaintiff’s argument, all of these portions contain the words “Defendants’
actions…” despite only the 3^rd cause of action being alleged against
more than just the County Defendant. Thus, because the Tort Claims Act prevents
a public entity from being liable for damages under Civil Code §3294, these
portions are stricken as to Defendant Los Angeles County.

Motion to
Strike is DENIED, as to portion Nos. 1, 3-9, 11, and GRANTED, as to Nos. 2, 3, 10,
12-15.

[1]
Plaintiff also argues that Defendant did not demur on the 5^th cause
of action for whistleblower retaliation, so Defendant has essentially
acknowledged that Plaintiff was retaliated against for reporting wrongful
conduct, including FEHA violations. (Opp. 13: 12-14.)

[2]
In Defendant’s Reply, Defendant states that “as set forth in the Defendants’
demurrer this language should be stricken with respect to Commander Mejia as
Plaintiff failed to state sufficient facts to support a cause of action for
Harassment.” The Court will not strike this language as to Commander Mejia as
the current motion was submitted by Defendant Los Angeles County only.