Judge Upinder S. Kalra, Case 22STCV36194 2023-05-23 Tentative Ruling

1. Demurrer as to the 1^st, 2^nd, 3^rd, 4^th, 5^th, and 8^th causes of action is OVERRULED.

2. Demurrer as to the 6^th and 7^th causes of action is SUSTAINED, with leave to amend.

On November 16, 2022, Plaintiff Marie Augustina Torres (“Plaintiff”) filed a complaint against Defendant County of Los Angeles (“Defendant.”) The complaint alleges eight causes of action based on various FEHA violations, such as gender and disability discrimination, harassment, retaliation, and failure to provide reasonable accommodations. Plaintiff alleges that she started working for Defendant as a Custody Assistant at Twin Tower Correctional Facility. While working there, Plaintiff alleges that she was subjected to discriminatory conduct, based on her gender as well as her disability. Despite requesting accommodations and making complaints about the hostile work environment, her alleges that her complaints were ignored. Therefore, Plaintiff alleges that she was forced to resign due to these conditions.

On March 13, 2023, Defendant filed a Demurrer with a Motion to Strike. Plaintiff’s Opposition was filed on May 10, 2023. Defendant’s Reply was filed on May 16, 2023.

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.

Defendant requests that the Court take judicial notice of the following documents:

4. Court’s Minute Order on Defendant’s Motion for Summary Judgment in Case No. 19STCV15856.

Plaintiff requests that the Court take judicial notice of the following documents:

1. First Amended Complaint Torres v. Los Angeles County Sheriff’s Department, et al. (2019) Los Angeles Superior Court, Case No. 19STCV15856.

2. Court Order re Notice of Related Case, entered November 28, 2022 Torres v. Los Angeles County Sheriff’s Department, et al. (2019) Los Angeles Superior Court, Case No. 19STCV15856.

3. Right to Sue Notice, from the State of California Department of Fair Employment & Housing (“DFEH”), DFEH Matter Number 2019-05606628, dated March 27, 2019.

4. Second Amended Complaint, filed on February 7, 2023 Torres v. County of Los Angeles, et al. (2022) Los Angeles Superior Court Case No. 22STCV36194.

5. Defendant’s Objection to Plaintiff’s Notice of Related Cases, electronically filed on November 22, 2022 Torres v. Los Angeles County Sheriff’s Department, et al. (2019) Los Angeles Superior Court, Case No. 19STCV15856.

6. Court Order re: Hearing on Motion for Summary Judgment entered on August 19, 2021 Torres v. Los Angeles County Sheriff’s Department, et al. (2019) Los Angeles Superior Court, Case No. 19STCV15856.

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).

Defendant argues that the 5^th, 6^th, and 7^th causes of action are barred by the doctrine of res judicata. Specifically, Plaintiff’s first lawsuit against Defendant involved a harassment claim, and the Court summarily adjudicated the quid pro quo harassment claim in Defendant’s favor. Plaintiff argues that res judicata does not apply because the allegations in this complaint had not yet occurred, and res judicata only bars claims that could have been raised when the original complaint was filed.

Res judicata prevents relitigation of the same cause of action in a second suit between the same parties or parties in privity with them. (Consumer Advocacy Group, Inc. v. ExxonMobil Corp. (2008) 168 Cal.App.4th 675, 683.) Res judicata requires three elements be met: “(1) the issues decided in the prior adjudication are identical with those presented in the later action; 2) there was a final judgment on the merits in the prior action; and 3) the party against whom the plea is raised was a party or was in privity with a party to the prior adjudication.” (Id. at 686.)

“Res judicata is not a bar to claims that arise after the initial complaint is filed. These rights may be asserted in a supplemental pleading, but if such a pleading is not filed a plaintiff is not foreclosed from asserting the rights in a subsequent action. [citation] The general rule that a judgment is conclusive as to matters that could have been litigated ‘does not apply to new rights acquired pending the action which might have been, but which were not, required to be litigated [Citaiton].’ ” (Allied Fire Protection v. Diede Construction, Inc. (2005) 127 Cal.App.4th 150, 155.)

Here, Plaintiff filed was filed he prior action, 19STCV15856, in May 2019. The FAC contain allegations of conduct that occurred in 2020., after filing her complaint in the other action. Accordingly, plaintiff is not foreclosed from asserting these subsequent claims in this action.[1]

Thus, the Doctrine of Res Judicata does not bar the 5^th, 6^th, and 7^th causes of action.

Defendant argues that the 1^st, 2^nd, 3^rd, 5^th, 6^th, and 7^th causes of action are barred by waiver and/or laches. Specf67icially, the claims in the FAC arose from conduct in 2020, shortly after her initial lawsuit was filed. Thus, Plaintiff should have sought to “amend her complaint” to allege these claims, rather than waiting 3 years to file in a new lawsuit. In the first lawsuit, Plaintiff was working at MCJ in 2019 and then in October 2021 she resigned while litigating the first case. Thus, Plaintiff “waived any right to bring a second lawsuit through a newly retained counsel to re-litigate these claims.” (Motion 22: 16-18.)

Plaintiff argues that waiver and laches are not applicable. The FAC contains numerous allegations where Plaintiff attempted to receive accommodations, but was denied. Moreover, Defendant has failed to establish any prejudice for this delay.

“[W]aiver is the intentional relinquishment of a known right after knowledge of the facts.' [Citations.] The burden ... is on the party claiming a waiver of a right to prove it by clear and convincing evidence that does not leave the matter to speculation, and 'doubtful cases will be decided against a waiver'” (Waller v. Truck Ins. Exchange, Inc. (1995) 11 Cal.4th 1, 31, as modified on denial of reh'g (Oct. 26, 1995)”)

“Laches is “an unreasonable delay in asserting an equitable right, causing prejudice to an adverse party such as to render the granting of relief to the other party inequitable.”” (Estate of Kampen (2011) 201 Cal.App.4th 971, 998.)

Here, there is no evidence that Plaintiff waived her claims, as the initial complaint was filed in 2019, and she worked until October 2021. During that time period, Plaintiff alleges other conduct occurred that is the basis for this complaint. Second, laches does not apply, as Plaintiff correctly states, there is no evidence of prejudice to the adverse party. The initial case was filed in May 2019, and there was subsequent conduct that was the basis for this lawsuit. Additionally, a three year delay is not unreasonable, since Plaintiff continued to try and work after the initial 2019 lawsuit, and then resigned in 2021.

Defendant makes an argument in one sentence that Plaintiff should have sought to amend her complaint to allege the new claims. Again, as stated above, failure to amend does not foreclose a party’s right to bring a new lawsuit. Even more so, when Plaintiff attempted to relate the two cases, which Defendant opposed, the Court found that “thought there may be some overlapping evidence, the new case primarily arises from events that occurred after the events underlying this action.” (Plaintiff’s RJN, Ex. B.)

Defendant argues that the claim for gender discrimination fails because Plaintiff has failed to demonstrate an adverse employment action or discriminatory motive due to gender. Additionally, Plaintiff’s claims for failure to provide meal and rest breaks are barred by operative of law because Government Code §§ 912.4 and 945.4 requires the government claim to be presented within six months of accrual of the cause of action and Plaintiff did not file a government tort claim. Lastly, the gender discrimination claim is uncertain as it does not provide any allegations that gender was a motivating factor.

Plaintiff argues that the FAC sufficiently alleges adverse employment actions. These include require Plaintiff to open a 200-lb door despite her medical restrictions, denying bathroom breaks while male coworkers were not denied breaks, inmates were ordered by male coworkers to shank her, and male deputies refused to wear masks and called her a “woman” in a derogatory manner, and scheduled Plaintiff inconsistently, like working double shifts. (FAC ¶¶ 40-41, 47-50, 57-60, 64-67, 97.)

Government Code section 12940(a) makes it unlawful “[f]or an employer, because of the … sex … of any person, to refuse to hire or employ the person or to refuse to select the person for a training program leading to employment, or to bar or to discharge the person from employment or from a training program leading to employment, or to discriminate against the person in compensation or in terms, conditions, or privileges of employment.”

“Generally, the plaintiff must provide evidence that (1) he was a member of a protected class, (2) he was qualified for the position he sought or was performing competently in the position he held, (3) he suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some other circumstance suggests discriminatory motive.” (Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 355 [100 Cal.Rptr.2d 352, 8 P.3d 1089]

In the employment context, the “adverse employment action” threshold is met when the employer's action “impact[s] the ‘terms, conditions, or privileges' of the plaintiff's job in a real and demonstrable way. In other words, a plaintiff must show that a reasonable person in the circumstances would have viewed it as “a serious and material change in the terms, conditions, or privileges of employment.” [citation] Examples include discharge, demotions, refusal to hire, nonrenewal of contracts, and failure to promote.

(Wilson v. Murill (2008) 163 Cal.App.4th 1124, 1134–1135 [78 Cal.Rptr.3d 214, 222]

Plaintiff has sufficiently alleged a cause of action for gender discrimination. Plaintiff was a female, and thus a member of a protected class, and was qualified to do her job. Additionally, she suffered an adverse employment action via a constructive resignation. (FAC ¶¶ 105-107.)

Constructive discharge, like actual discharge, is a materially adverse employment action.” [citation.] Constructive discharge occurs when the employer's conduct effectively forces an employee to resign. Although the employee may say ‘I quit,’ the employment relationship is actually severed involuntarily by the employer's acts, against the employee's will. As a result, a constructive discharge is legally regarded as a firing rather than a resignation.

Lastly, the circumstances as described by Plaintiff indicate that there was discriminatory motive. She was told that she would be shanked by inmates along with another female co-worker, was called a “woman” in a derogatory manner, and male deputies did not wear masks around her, despite her request to do so, and was not allowed to use the restroom while male deputies were allowed. (FAC ¶¶ 40-41, 47-50, 57-60, 64-67, 97.)

Defendant argues that Plaintiff failed to allege any adverse employment action due to Plaintiff’s disability, only alleging a failure to accommodate. Plaintiff argues that the FAC is sufficient because it states that Plaintiff suffered a disability, i.e., a hernia. She was qualified for the position, suffered a “multitude of adverse employment actions that…make an inference of discriminatory intent.” (Opp. 14: 1-3.)

To establish a prima facie case for disability discrimination, a plaintiff must allege that “he or she (1) suffered from a disability, or was regarded as suffering from a disability; (2) could perform the essential duties of the job with or without reasonable accommodations, and (3) was subjected to an adverse employment action because of the disability or perceived disability.” (Sandell v. Taylor-Listug, Inc. (2010) 188 Cal.App.4th 297, 310.)

“[A] plaintiff alleging disability discrimination can establish the requisite employer intent to discriminate by proving (1) the employer knew that plaintiff had a physical condition that limited a major life activity, or perceived him to have such a condition, and (2) the plaintiff's actual or perceived physical condition was a substantial motivating reason for the defendant's decision to subject the plaintiff to an adverse employment action.” (Glynn v. Superior Court (2019) 42 Cal.App.5th 47, 53.)

FEHA describes a physical disability as having a “physiological disease, disorder, condition, cosmetic disfigurement, or anatomical loss that…affects one or more of the following body systems: neurological, immunological, musculoskeletal, special sense organs, respiratory, including speech organs, cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin, and endocrine, or limits a major life activity.” (Gov. Code, § 12926(m)).

After reviewing the FAC, the Court finds that Plaintiff has sufficiently alleged a disability discrimination cause of action. First, Plaintiff’s hernia would be considered a physical disability because it affects or limits a major life activity. Here, due to the Plaintiff’s hernia, she was unable to lift heavy objects at work. Second, with an accommodation, such as not lifting more than 15 pounds, Plaintiff could perform her job. Lastly, as stated above, Plaintiff was constructively discharged, as she was forced to resign due to the treatment she suffered while working for Defendant.

Defendant’s only argument concerning this cause of action is that it fails due to Plaintiff’s failure to prosecute. However, as stated above, there was no failure to prosecute.

“To establish a failure to accommodate claim, [a plaintiff] must show (1) she has a disability covered by FEHA; 2) she can perform the essential functions of the position; and 3) [defendant] failed reasonably to accommodate her disability.” (Brown v. Los Angeles Unified School District (2021) 60 Cal.App.5th 1092, 1107.)

Thus, Defendant has failed to substantively provide an argument as to why this cause of action fails. Even still, the Court finds that this cause of action is sufficiently alleged. First, Plaintiff suffered a disability, she had a hernia. She was able to perform the functions of her job, and Defendant repeatedly ignored her request for accommodations.

Defendant’s only argument concerning this cause of action is that it fails due to Plaintiff’s failure to prosecute. However, as stated above, there was no failure to prosecute.

In order to establish a claim that an employer failed to engage in the interactive process, a plaintiff must show that (1) the plaintiff requested the employer make a reasonable accommodation; (2) the plaintiff was willing to participate in an interactive process to determine whether a reasonable accommodation could be made; and (3) the employer failed to participate in a timely and good-faith interactive process with the plaintiff to determine whether a reasonable accommodation could be made. (Govt. Code § 12940(n); CACI No. 2546.) But if an employee does not need or request an accommodation, there can be no violation of the duty to engage in the interactive process or to accommodate. (Prilliman v. United Air Lines, Inc. (1997) 53 Cal.App.4th 935, 954.)

Thus, Defendant has failed to substantively provide an argument as to why this cause of action fails. Even still, the Court finds that this cause of action is sufficiently alleged. First, Plaintiff alleges that she requested multiple times for an accommodation due to her hernia, and even provided a doctor’s note. (FAC ¶¶ 35-36.) Plaintiff was willing to engage in the interactive process. (FAC ¶ 148.) However, Defendant failed to participate in this process and refused to accommodate Plaintiff’s disability. (FAC ¶¶ 38, 40-46.)

Defendant argues that the FAC fails to allege severe of pervasive conduct. Plaintiff argues that the conduct was severe and pervasive, as Plaintiff was not treated with respect, was treated with public humiliation, threatened her physical safety, denied support, and was told her male counter parts wanted inmates to shank her.

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.)

Here, the Court finds that based on the facts as alleged in the FAC, Plaintiff has sufficiently alleged a claim for harassment and hostile work environment. Here, Plaintiff was in a protected group – i.e., female. Second, Plaintiff was subjected to harassing behavior. Specifically, as stated above, she was informed that her male counter parts wanted inmates to shank her, she was denied support when faced with difficult situations, she was called “woman” in a derogatory manner, spread rumors about her being a lesbian, overheard another coworker say “you know how women are” when speaking about Plaintiff. (FAC ¶¶ 64, 70, 97.) Fourth, this type of harassment is pervasive as to alter the conditions of employment. While a derogatory comment here or there would not rise to the level required for a harassment claim, here, the multiple instances of harassing conduct due to Plaintiff’s gender would be considered severe and pervasive. The knowledge that her co-workers wanted inmates to shank her would alter any reasonable person working conditions. Thus, Plaintiff has sufficiently alleged a cause of action for gender-based harassment and hostile work environment.

Defendant argues that this cause of action is duplicative of the fifth cause of action.

Here, the Court finds that this cause of action is duplicative and uncertain. The fifth cause of action alleges harassment pursuant to the same subsection of Government Code § 12940(j)(1). In this cause of action, the FAC states that harassment is prohibited based on a “physical disability…sex, gender.” (FAC ¶ 170.) However, is this cause of action both physical disability and sex and gender discrimination? Solely disability? Thus, the Court is unsure if this is solely a disability harassment claim or another gender harassment claim. If so, it would be duplicative of the above cause of action and the Court cannot determine how the allegations under this cause of action are separate and distinct from the fifth cause of action.

Demurrer as to the Sixth Cause of Action is SUSTAINED, with leave to amend.[2]

Defendant argues that this cause of action fails because it does not state facts sufficient for a claim for retaliation. Also, Defendant argues that Plaintiff did not engage in a protected activity and there are no allegations that deputies knew of her complaints. Plaintiff argues that the allegations must be accepted as true, and the FAC states that the “job conditions to which Plaintiff was subjected…were discriminatory on the basis of sex and gender, and in retaliation for prior complaints of sex harassment and subsequent complaints of unlawful conduct.” (FAC ¶ 4.)

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.)

“An employee's conduct may constitute protected activity ... not only when the employee opposes conduct that ultimately is determined to be unlawfully discriminatory under the FEHA, but also when the employee opposes conduct that the employee reasonably and in good faith believes to be discriminatory, whether or not the challenged conduct is ultimately found to violate the FEHA.” (Dinslage v. City and County of San Francisco (2016) 5 Cal.App.5th 368, 381.)

After a review of the FAC, the Court finds that Plaintiff has not sufficiently alleged a claim for retaliation. Specifically, Plaintiff fails to establish a causal link between the protected activity – the discrimination and request for accommodation denials – and an adverse employment action. While the Court did find an adverse employment action based on constructive discharge, there is no causal link between Plaintiff’s complaints and the later constructive discharge. There may be other causes of action that require demonstrating an adverse employment action, retaliation requires a causal nexus. Here, the FAC provides not link between the complaints and later resignation.

Demurrer as to the Seventh Cause of Action is SUSTAINED, with leave to amend.

Defendant argues that this cause of action for failure to prevent discrimination is derivative of the other FEHA claims. Thus, because the other causes of action should be sustained, so should this one.

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)).

As the court has determined that the FEHA discrimination claims are valid, this cause of action is valid as well.

Defendant argues that this should be stricken because of res judicata, as this paragraph discusses her involuntary transfer to MCJ, which is based on her prior lawsuit. Defendant also argues that these claims are barred by waiver and laches, and Plaintiff cannot seek to have wage and hour claims as public entities are not subject to Labor Code §§ 512 and 226.7. Plaintiff argues that this paragraph should not be stricken as it goes to Defendant’s pattern of retaliating against Plaintiff for making complaints.

Plaintiff’s counsel states that they “are not basing our retaliation claim on Ms. Torres’s transfer to MCJ” in 2018. (Dec. Markova, Ex. 1, pg. 9.) While Plaintiff may not be able use this as an adverse employment action, this conduct may be admissible for other purposes. (See Evidence Code section 1101(b).) This should be better left for a motion in limine pre-trial.

Defendant argues that these paragraphs should be stricken because, while they concern retaliation after inmates were asked to shank her, Plaintiff did not plead that the deputies knew she made complaints. Additionally, no adverse employment action took place. Plaintiff argues that these paragraphs are relevant and should not be stricken. Moreover, arguments about whether the paragraphs are sufficient for a cause of action is improper for a motion to strike as it “seeks to attack the sufficiency of Plaintiff’s allegations.”

After reviewing the FAC, the Court finds that these allegations are not improper, as they go to circumstances that indicate a hostile work environment, and potentially retaliation. Moreover, despite Defendant’s contention, the Court has found that an adverse employment action occurred, as Plaintiff was constructively discharged, forced to resign. (See Steele, supra, 162 Cal.App.4th at 1253.)

Defendant argues that as seen in the correspondence between counsel, Plaintiff agreed to remove these allegations. (Dec. Markova.) These paragraphs, which concern allegations of inhumane treatment of inmates, does not give rise to retaliation claim. Plaintiff argues that these paragraphs are relevant as they pertain to Plaintiff’s complaints and the response demonstrates gender discrimination, not retaliation.

This conduct may be admissible. This should be better left for a motion in limine pre-trial.

Demurrer as to the 1^st, 2^nd, 3^rd, 4^th, 5^th, and 8^th causes of action is OVERRULED.

Demurrer as to the 6^th and 7^th causes of action is SUSTAINED, with 20 days leave to amend.

[1]The Court notes that Defendant objected when Plaintiff attempted to relate this action to the prior complaint. That trial court denied the request to relate the matters.

[2] The Court notes that in the Reply Declaration of Maria Markova, Plaintiff indicated that they were amendable to combining causes of action 5 and 6.