Judge: Virginia Keeny, Case: 24STCV24161, Date: 2025-04-08 Tentative Ruling
Case Number: 24STCV24161 Hearing Date: April 8, 2025 Dept: 45
FERNANDO
ORTEGA v. CITY OF LOS ANGELES
demurrer to plaintiff
fernando ortega’s complaint
Date of Hearing: April
8, 2025 Trial
Date: None
set.
Department: 45 Case
No.: 24STCV24161
Moving Party: Defendant
City of Los Angeles
Responding Party: Plaintiff
Fernando Ortega
Meet and Confer: Yes.
(Neishlos Decl. ¶4.)
BACKGROUND
On
September 18, 2024, Plaintiff Fernando Ortega filed a complaint against the
City of Los Angeles for disability discrimination in violation of Government
Code section 12940(a) and retaliation in violation of Government Code section
12940(m)(2). Plaintiff alleges in January 2021, he took protected leave for
injuries on duty and when Plaintiff returned to work in May 2022, he was
assigned desk duty. As part of the desk duty, Plaintiff alleges he could not
respond to a subpoena which later caused a disciplinary investigation for
failure to attend.
[Tentative] Ruling
Defendant
City of Los Angeles’ Demurrer is SUSTAINED WITH LEAVE TO AMEND.
REQUEST FOR JUDICIAL NOTICE
Defendant
requests this court take judicial notice of Christian Jaimes v. City of Los
Angeles, LASC Case No. 21STCV22268, Minute Order: Hearing on Motion for
Summary Judgment (Chang, J., Aug. 30, 2023).
The court
GRANTS Defendant’s request for judicial notice.
DISCUSSION
Defendant City of Los Angeles demurs to
Plaintiff Fernando Ortega’s complaint on the grounds that the Complaint fails
to allege sufficient facts sufficient to constitute causes of action against
the City based on the Fair Employment and Housing Act.
Administrative Remedies
Defendant City of Los Angeles first
demurs to the complaint on the grounds Plaintiff has failed to exhaust
administrative remedies.
“Under the FEHA, the employee must
exhaust the administrative remedy provided by the statute by filing a complaint
with the Department of Fair Employment and Housing (Department) and must obtain
from the Department a notice of right to sue in order to be entitled to file a
civil action in court based on violations of the FEHA.” (Romano v. Rockwell Internat.,
Inc. (1996) 14 Cal.4th 479, 492 (citing Govt. Code, ¶¶ 12960, 12965(b); Rojo
v. Kliger (1990) 52 Cal.3d 65, 88; Martin v. Lockheed Missiles
& Space Co. (1994) 29 Cal.App.4th 1718, 1724).) “The timely filing of
an administrative complaint is a prerequisite to the bringing of a civil action
for damages under the FEHA.” (Id.)
“To exhaust his or her administrative
remedies as to a particular act made unlawful by the Fair Employment and
Housing Act, the claimant must specify that act in the administrative
complaint, even if the complaint does specify other cognizable wrongful acts.”
(Martin, supra, 29 Cal.App.4th at 1724 (citing Yurick, supra,
209 Cal.App.3d at 1121–1123).) The plaintiff bears the burden of pleading and
proving timely exhaustion of administrative remedies, such as filing a
sufficient administrative charge with DFEH and obtaining a right-to-sue letter.
(Kim v. Konad USA Distribution, Inc. (2014) 226 Cal.App.4th 1336, 1345.)
“[T]he specific words of the charge of discrimination need not presage with
literary exactitude the judicial pleadings which may follow.” (Nazir v.
United Airlines, Inc. (2009) 178 Cal.App.4th 243, 267 (internal quotations
and citations omitted).)
Defendant maintains Plaintiff has
failed to file a CRD complaint (formerly known as DFEH) alleging the required
particulars including who “discriminated” or “retaliated” against Plaintiff,
the date and type of protected activity in which Plaintiff states he engaged,
or more than just the conclusory allegations that the disability was “physical,
intellectual/developmental, mental health/psychiatric.” Defendant also argues
the CRD complaint failed to state such events occurred in California or that
Plaintiff is a California resident, which is fatal because FEHA cannot “apply
to non-residents employed outside the state [or where] tortious conduct did not
occur in California.” (Campbell v. Arco Marine, Inc. (1996) 42
Cal.App.4th 1850, 1860.)
In opposition, Plaintiff argues they
have properly alleged exhausting administrative remedies. Plaintiff contends the
requirement to spell out the nature of a disability in a lawsuit does not mean
what Defendant wishes it would mean. The nature of disability refers to
physical versus mental disability. (Hobson v. Raychem (1999) 73 Cal.App.4th 614.) Moreover, there is no
requirement to allege that unlawful conduct took place in the State of
California, or that Plaintiff resides in California, for a FEHA cause of action
or for a CRD filing to be sufficient or actionable. Plaintiff also maintains Plaintiff’s
amendment cured said “deficiency” and therefore, the issue of exhaustion is
moot. (See Nazarian Decl. ¶2, Exh. A.) And even so, Plaintiff argues obtaining
a Right to Sue means there is no administrative process to exhaust.
The court finds the CRD complaint
sufficiently identifies with specificity the discrimination alleged and facts
supporting it. The CRD complaint states Plaintiff was discriminated against
because of complainant’s physical, intellectual/developmental and mental
health/psychiatric disability and as a result of that disability, Plaintiff was
forced to quit, was reprimanded, suspended, forced to transfer and so forth.
The CRD complaint also states Plaintiff experienced retaliation because
Plaintiff requested or used a disability related accommodation and as a result,
was forced to quit, reprimanded, and so forth. The administrative remedies
process is not supposed to be an additional barrier or obstacle from Plaintiff
bringing a legal claim.
Even so, Plaintiff has filed a new CRD
complaint in October 2024, further describing the charges of discrimination and
retaliation by Defendant. The amended complaint is not like Foroudi v.
Aerospace Corporation (2020) 57 Cal.App.5th 992. In Foroudi, the
plaintiff sought to remedy the issues with his original and first amended DFEH
complaint by filing a second amended complaint more than three years after the
DFEH permanently closed his case and nearly two years after filing his civil
complaint. Here, Plaintiff filed their amended complaint a month later.
Moreover, the amended complaint, unlike the one in Foroudi, does not
assert new or disparate impact theories of recovery. Rather, just further
detail Plaintiff’s allegations alleged in the first CRD complaint.
As for pleading Plaintiff is a
California resident, the CRD complaint seems to rely on the fact that Plaintiff
is suing the City of Los Angeles and was an employee of the LAPD. The civil
complaint does allege Plaintiff is an individual residing in Los Angeles
County. The case law provided does state FEHA does not apply to non-residents. However, the court is not aware of any case
that states the plaintiff must claim to be a Los Angeles resident in the
CRD. The court declines to impose such a
requirement.
The court lastly notes that DFEH has
provided a person may forgo having the department investigate a complaint and
may instead obtain an immediate right-to-sue. (Cal. Code Regs., tit. 2 §1005; Clark
v. Superior Court (2021) 62 Cal.App.5th 289.)
Discrimination
Defendant next demurs to the complaint
on the grounds the complaint lacks sufficient facts to support plausible claims
for relief under FEHA.
To plead a disability discrimination
claim under FEHA (Gov’t Code § 12940(a)), an employee must allege that he (1)
was a member of a protected class, (2) was performing competently in the
position held, (3) suffered an adverse employment action, “such as termination,
demotion, or denial of an available job,” and (4) “some other circumstance
suggests discriminatory motive.” (Brown v. Los Angeles Unified Sch. Bd.
(2021) 60 Cal.App.5th 1092, 1105.)
Defendant argues Plaintiff fails to
allege that he is a member of a protected class because the Complaint does not
actually allege that he suffers from any disability. Moreover, Plaintiff fails
to allege sufficient facts that he suffered an adverse employment action
because of any alleged disability and there is no other allegation in the
Complaint suggesting discriminatory motive.
In opposition, Plaintiff contends
Defendant is relying on cases at the summary judgment stage. Moreover,
Plaintiff has sufficiently alleged Defendant perceived him as disabled and that
Defendant knew about Plaintiff’s history of disability.
The court agrees Plaintiff fails to
allege facts sufficient to constitute a claim for disability. FEHA defines a
“disability” as a “physiological disease, disorder, condition, cosmetic
disfigurement, or anatomical loss that … [a]ffects one or more of the following
body systems: neurological, musculoskeletal, special sense organs, respiratory,
including speech organs, cardiovascular, reproductive, digestive,
genitourinary, hemic and lymphatic, skim, and endocrine … [and] [l]imits major
lift activity.” (Cal. Gov’t Code § 12926(m)(1)(A)-(B).) It is not sufficient to
allege he was injured on the job and
therefore qualifies under one of these definitions of disability. Moreover, although
Plaintiff attempts to argue he was discriminated against on the basis of
perceived disability, that is not clearly alleged in the complaint. In
conclusory fashion, Plaintiff alleges he was disabled and Defendant perceived
this disability.
Retaliation
Lastly, Defendant demurs to the
complaint on the grounds Plaintiff fails to state a claim for retaliation in
violation of FEHA.
To plead a retaliation claim under FEHA
(Gov’t Code § 12940(h)), an employee must allege that: (1) the employee engaged
in activities protected by the FEHA, (2) the employer subsequently took adverse
employment action against him/her, and (3) there was a causal connection
between the protected activity and the adverse employment action.” (Miller
v. Dep’t of Corr. (2005) 36 Cal.4th 446, 472 (citation omitted).) “The
causal link may be established by an inference derived from circumstantial
evidence, such as the employer’s knowledge that the [employee] engaged in
protected activities and the proximity in time between the protected action and
allegedly retaliatory employment decisions.” (Morgan v. Regents of Univ. of
Cal. (2000) 88 Cal.App.4th 52, 69 (internal citations omitted).)
Defendant argues Plaintiff makes
barebone allegations and fails to show that he was engaged in any protected
activity. Moreover, Defendant maintains the complaint also fails to support the
inference that Defendant took any proscribed adverse action against Plaintiff
under FEHA due to him taking medical leave. Defendant contends an
investigation, threat of termination, and recommendation for discipline that
are not implemented do not amount to adverse actions under FEHA.
In opposition, Plaintiff argues the
allegations are sufficient. Plaintiff points to the allegations that Defendant
took adverse actions of recommending disciplinary actions and threatening
termination because of Plaintiff’s history of being disabled. Plaintiff also
points to the allegations that Defendant retaliated against him because he
requested reasonable accommodation.
The court agrees Plaintiff fails to
allege facts sufficient to support a claim for retaliation. As noted by Defendant, “protected activity
does not include a mere request for reasonable accommodation.” (Nealy v.
City of Santa Monica (2015) 234 Cal.App.4th 359, 381.) Without more,
Plaintiff has not sufficiently alleged a protected activity.