Judge Yolanda Orozco, Case 19STCV30635 2023-03-03 Tentative Ruling

Judge: Yolanda Orozco, Case: 19STCV30635, Date: 2023-03-03 Tentative Ruling

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Case Number: 19STCV30635 Hearing Date: March 3, 2023 Dept: 31

DEMURRER IS SUSTAINED IN PART, MOTION TO STRIKE IS GRANTED

Background

On June 9, 2022, Plaintiff Joaquin Rangel filed the instant action against Defendants Los Angeles Unified School District, Los Angeles Unified School District Education Foundation, Los Angeles Unified School District Accounting & Disbursement Division, Association of Educational Office Employees of The Los Angeles City United School District, Inc., Matthew Frehwein, Jaime Hernandez, and Does 1 Through 20, inclusive. The Complaint asserts causes of action for:

(1) Discrimination in Violation of Gov’t Code §§12940 et seq.;

(2) Harassment in Violation of Gov’t Code §§12940 et seq.;

(3) Retaliation in Violation of Gov’t Code §§12940 et seq.;

(4) Failure to Prevent Discrimination, Harassment and Retaliation in Violation of Gov’t Code §12940(K);

(5) Retaliation in Violation of Gov’t Code §§12945.2 et. seq.;

(6) Failure to Provide Reasonable Accommodations in Violation of Gov’t Code §§12940 et seq.;

(7) Failure to Engage in A Good Faith Interactive Process in Violation of Gov’t Code §§12940 et seq.; and

(8) Wrongful Termination in Violation of Public Policy.

Defendant Los Angeles Unified School District (hereinafter “Defendant”) demurs to the first through eighth causes of action in the Complaint and moves to strike allegations in the Complaint related to punitive damages and prejudgment interest.

Legal Standard on Demurrer

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. (Wilson v. Transit Authority of City of Sacramento (1962) 199 Cal.App.2d 716, 720-21.) 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 pleading alone, and not on the evidence or facts alleged.” (E-Fab, Inc. v. Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.) As such, the court assumes the truth of the complaint’s properly pleaded or implied factual allegations. (Id.) However, it does not accept as true deductions, contentions, or conclusions of law or fact. (Stonehouse Homes LLC v. City of Sierra Madre (2008) 167 Cal.App.4th 531, 538.) A demurrer may be sustained “only if the complaint fails to state a cause of action under any possible legal theory.” (Sheehan v. San Francisco 49ers, Ltd. (2009) 45 Cal.4th 992, 998.)

Legal Standard for Motion to Strike

Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof. (Code of Civ. Proc., § 435, subd. (b)(1); Cal. Rules of Court, Rule 3.1322(b).) The court may, upon a motion or at any time in its discretion and upon terms it deems proper: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (Code of Civ. Proc., § 436, subds. (a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].)

Meet and Confer

Code of Civil Procedure § 430.41 requires that “[b]efore filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Code Civ. Proc., §¿430.41(a).) The parties are to meet and confer at least five days before the date the responsive pleading is due. (Code Civ. Proc., § 430.41(a)(2).) Thereafter, the demurring party shall file and serve a declaration detailing their meet and confer efforts. (Code Civ. Proc., § 430.41(a)(3).)

Here, the parties dispute whether Defendant satisfied the meet and confer requirement. Defendant’s counsel testifies that he attempted to meet and confer with Plaintiff’s counsel on or about August 29, 2022 and September 23, 2022 by email with regard to the instant demurrer, motion to strike the Complaint, and objections. (Grable Decl. ¶ 2.) Defense counsel claims that he received no response to both attempts. (Id.)

In Plaintiff’s opposition, Plaintiff contends that Defendant failed to meet and confer. Plaintiff’s counsel Liliuokalani Martin testifies that on August 29, 2022, Plaintiff’s counsel Jessica Gomez responded to Mr. Grable’s email stating: “Adam, please outline your authority first. Not sure what LAUSD’s basis is for filing a demurrer and motion to strike. Call me anytime this week. Thanks.” (Martin Decl. ¶ 3.)

In a reply, Defendant argues that Ms. Martin’s declaration should be disregarded because it contains hearsay and is not the best evidence. Additionally, Defendant notes that Plaintiff’s counsel did not attach a physical copy of the email or include defense counsel’s email address. Finally, Defendant notes that Plaintiff’s counsel did not address Defendant’s counsel’s second meet and confer attempt after the 30-day automatic extension filed on September 23, 2022. In a supplemental declaration to the reply papers, Defendant’s counsel testifies that he never received an email from Jessica Gomez on August 29, 2022 or at any time in response to his requests to meet and confer. (Grable Supp Decl. ¶ 2.) After the opposition was filed, Defendant’s counsel testifies he performed a search of the email and found no such emails. (Id.)

The Court finds that Defendant has satisfied the meet and confer requirement despite Plaintiff’s contention. Plaintiff’s counsel fails to sufficiently show that they responded which is demonstrated by their failure in attaching an exhibit of the response or even an email address in which it was sent. The Court also questions why Plaintiff’s Counsel Jessica Gomez did not prepare a declaration stating the same, rather relying on Counsel Martin to proffer hearsay testimony. Thus, the Court will consider merits of Defendant’s demurrer.

Evidentiary Objections

Defendant objects to paragraph 3 of the Martin Declaration on the grounds that these are statements made by plaintiff counsel, Liliuokalani Martin, as to an email allegedly written by an associate in her office named Jessica Gomez. The Court SUSTAINS this objection.

Defendant further objects to paragraphs 4 and 5 of the Martin Declaration. The Court OVERRULES this objection.

Discussion

Defendant demurs to the first through eighth causes of action on the grounds that they fail to allege facts sufficient to state causes of action.

First Cause of Action for Age, Disability, Medical Condition, and/or Perceived Disability or Medical Condition Discrimination in Violation of FEHA

To establish a discrimination claim under FEHA, an employee must prove the following elements: “(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.” (Dinslage v. City and County of San Francisco (2016) 5 Cal.App.5th 368, 378.)

The elements of a harassment claim under FEHA are (1) plaintiff’s membership in a protected group; (2) plaintiff was subject to unwelcome harassment; (3) the harassment complained of was based on plaintiff’s membership in that 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. (See Jones v. Department of Corrections & Rehabilitation (2007) 152 Cal.App.4th 1367, 1377; Thompson v. City of Monrovia (2010) 186 Cal.App.4th 860, 876.)

Defendant argues that Plaintiff cannot maintain a causal nexus between any decisions or actions alleged in the Complaint and any discriminatory animus held by anyone at the District, which is required to maintain a claim for FEHA discrimination. Defendant explains that Plaintiff was placed on the 39-month reemployment list per Education Code section 45195 as required by statute after Plaintiff had exhausted his benefit time. Defendant contends that there is no reference to Plaintiffs age, disability, or medical condition by any District employee alleged in the Complaint.

In opposition, Plaintiff contends that the Complaint contains all the elements for this claim. Plaintiff claims he notified his employer that he was suffering from a medical condition and/or disability (Compl., ¶ 25), he went on medical leave after his supervisors instructed him to go seek medical assistance and a doctor placed him on leave (Compl., ¶ 25); he would have been able to perform the essential duties of his job with reasonable accommodations (Compl., ¶ 26); he sought accommodations for his disability (Compl., ¶ 25-26); Defendant simply refused to engage in a good faith interactive process and refused to reasonably accommodate Plaintiff (Compl., ¶ 27); and Plaintiff was subjected to an adverse employment action due to his medical condition and/or disability including termination. (Compl., ¶ 27.)

Additionally, Plaintiff further alleges that he was over the age of 40 (Compl., ¶ 17); that he suffered an adverse employment action by being given the less desirable routes; he was subjected to unlawful harassment and ultimately terminated from his employment (Compl., ¶ 27); that he suffered additional adverse employment actions such as the undeserved comments and negative performance reviews in front of other co-workers which resulted in Plaintiff suffering physical manifestations as a result of the harassment (Compl., ¶ 24.); and that Defendant’s actions had a substantial and material impact on the conditions of employment.

In reply, Defendant contends that Plaintiff pleads no facts demonstrating that anyone held a discriminatory animus against him based on his age, disability, medical condition, or for any reason whatsoever. Defendant argues that Plaintiff’s allegations are legal conclusions not supported by any facts. The Court agrees.

The Court finds that the Complaint fails to sufficiently state factual allegations that he was subjected to adverse employment actions due to his age and disability. Plaintiff claims that “Employers discriminated, retaliated, and harassed Plaintiff on the basis of disability and age. Employers failed to accommodate Plaintiff and retaliated against Plaintiff for requesting accommodations. Employers failed to engage in the interactive process. Employers retaliated against Plaintiff for using his benefits under the California Family Medical Leave Act and subsequently discriminated against him by terminating him.” (Compl. ¶ 27.) Plaintiff also claims that he suffered adverse employment actions when his employers made underserved comments and negative performance reviews in front of other co-workers. However, these allegations are conclusory allegations devoid of specific acts that Plaintiff’s employers took which show any discriminatory motive. Furthermore, Plaintiff does not allege that the negative comments had anything to do with Plaintiff’s age, disability, or medical condition.

Based on the foregoing, Defendant’s demurrer to the first cause of action is SUSTAINED WITH LEAVE TO AMEND.

Second Cause of Action for Harassment/Hostile Work Environment in Violation of FEHA

Harassment may be verbal, physical, or visual and “communicates an offensive message to the harassed employee” (Thompson v. City of Monrovia (2010) 186 Cal.App.4th 860, 877 citing Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 706.) Such harassment “cannot be occasional, isolated, sporadic, or trivial; rather the plaintiff must show a concerted pattern of harassment of a repeated, routine or a generalized nature.” (Id. citing Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 131.) A plaintiff must prove that the defendants’ conduct “would have interfered with a reasonable employee's work performance and would have seriously affected the psychological well-being of a reasonable employee.” (Thompson v. City of Monrovia, supra, 47 Cal.4th at 877.)

Defendant argues that Plaintiff fails to allege any conduct that was severe or pervasive, and in fact, does not allege any discriminatory comments or conduct whatsoever. Additionally, Defendant contends that Plaintiff cannot demonstrate pervasiveness because he was not even present at the workplace. Finally, Defendants argue that Plaintiff cannot show any pattern of derogatory comments due to Plaintiffs age, disability, or medical condition, and that the only other conduct complained about by Plaintiff consist of ordinary personnel management decisions.

In opposition, Plaintiff argues that he has sufficiently alleged facts to support this claim and particularly that he alleged Defendant’s conduct that was severe and pervasive enough to cause physical manifestations from the emotional harm. Plaintiff alleges that Defendant and his supervisors tried to set him up for failure by purposely switching his assignments without letting him know, maliciously taking away assignments from Plaintiff, and commenting on his alleged failed performance in front of his co-workers (Compl., ¶ 23), that Plaintiff suffered anxiety, depression and headaches as result of these actions (Compl., ¶ 24), and that Defendants acted with this bias that is expressed through interpersonal relations in the workplace due to his age (Compl., ¶ 27). Plaintiff argues that while Defendant is correct in pointing out that Plaintiff does not allege any specific comments about his age, he is not required to do so because harassment refers to bias that is expressed or communicated through interpersonal relations in the workplace and that consist of actions outside the scope of job duties which are not of a type necessary to business and personnel management.

In reply, Defendant argues that Plaintiff still fails to show any allegations which would support a claim for FEHA harassment with any severe or pervasive conduct or conduct that is not “personnel management” decisions.

The Court finds that Plaintiff sufficiently alleges facts to support a claim for harassment since Plaintiff points to specific actions taken by his supervisors such as purposely switching his assignments without letting him know, maliciously taking away assignments from Plaintiff, and commenting on his alleged failed performance in front of his co-workers (Compl., ¶ 23). The Court finds that this is sufficient to withstand demurrer.

Based on the foregoing, Defendant’s demurrer to the second cause of action is OVERRULED.

Third Cause of Action for Retaliation for Engaging in Protected Activity in Violation of FEHA

To establish retaliation under FEHA, a plaintiff must show that “(1) he or she engaged in a ‘protected activity,’ (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer’s action.” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.) A retaliation claim can be brought by an employee who has complained of conduct reasonably believed to be discriminatory. (Id. at 1043; see also Kelley v. Conco Companies (2011) 196 Cal.App.4th 191, 209-10.) “[A]lthough an adverse employment action must materially affect the terms, conditions, or privileges of employment to be actionable, the determination of whether a particular action or course of conduct rises to the level of actionable conduct should take into account the unique circumstances of the affected employee as well as the workplace context of the claim.” (Yanowitz, supra, 36 Cal.4th at 1052.)

Defendant argues that Plaintiff cannot make a prima facie claim for retaliation because he does not allege any specific facts as to a causal link between his engagement in a protected activity and any actions taken by the District. Defendant points out that it placement of Plaintiff on the 39 month reemployment list was a ministerial duty required by statute Education Code section 45195.

In opposition, Plaintiff argues that his complaint contains all the necessary allegations: (1) Plaintiff engaged in the protected activities of exercising his right to report his disability, requesting accommodation and complaining about and protesting defendants’ discriminatory conduct based on disability; (2) Plaintiff suffered the adverse employment actions of unlawful discrimination, failure to accommodate, failure to engage in the interactive process, failure to prevent discrimination, termination and/or constructive termination, denied employment, and denied reinstatement; and (3) A causal link exists between Plaintiff’s engagement in protected activities and the adverse employment actions.

In reply, Defendant contends that Plaintiff cannot and does not meet the various prima facie elements because he does not allege any specific facts as to a causal link between his engagement in a protected activity and any actions taken by the District.

The Court agrees with Defendant in that Plaintiff fails to set forth any specific facts which can be used to show causal link between his engagement in a protected activity and Defendant’s alleged adverse employment actions.

Based on the foregoing, Defendant’s demurrer to the third cause of action is SUSTAINED WITH LEAVE TO AMEND.

Fourth Cause of Action for Failure to Prevent Discrimination, Harassment, and Retaliation in Violation of FEHA

Government Code section 12940(k) provides that it is an unlawful employment practice “[f]or an employer, labor organization, employment agency, apprenticeship training program, or any training program leading to employment, to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring.” (Govt. Code, § 12940(k).) Section 12940(k) has been extended to include a failure to prevent retaliation. (See CACI, No. 2527; see also Jumaane v. City of Los Angeles (2015) 241 Cal.App.4th 1390, 1410.)

Defendant contends that since there was no underlying Harassment, Discrimination, or Retaliation in this case, this cause of action fails as a matter of law.

In opposition, Plaintiff claims that he has alleged sufficient facts to support his causes of action for harassment, discrimination, and retaliation, thus Defendant’s demurrer should be overruled.

In reply, Defendant repeats its arguments.

The Court finds that Plaintiff can maintain a cause of action for failure to prevent harassment because as discussed above, Plaintiff has alleged sufficient facts to support a harassment claim.

Based on the foregoing, Defendant’s demurrer to the fourth cause of action is OVERRULED.

Fifth Cause of Action for Retaliation in Violation of Government Code §12945.2 the California Family Rights Act (“CFRA”)

To establish a prima facie retaliation claim under CFRA, Plaintiff must show that: (1) defendant was a covered employer; (2) the employee was eligible for CFRA leave; (3) the plaintiff exercised his right to take a qualifying leave; and (3) the plaintiff suffered an adverse employment action because he exercised the right to take a leave. (Weeks v. Union Pacific Railroad Co., E.D.Cal.2015, 137 F. Supp. 1204, 1230.)

Defendant argues that Plaintiff cannot and does not meet the various prima facie elements because he does not allege any specific facts as to a causal link between the alleged adverse employment action and the exercise of his right to take the leave allowed by CFRA. Defendant contends that placing Plaintiff on the 39-month reemployment list was a ministerial duty required by statute and is not an adverse action. Defendant also states that Plaintiff does not allege that he was ever denied a leave of any kind prior to being placed on the 39-month reemployment list.

In opposition, Plaintiff reiterates that while he was on medical leave he was terminated.

The Court finds that there are sufficient facts to show that Plaintiff suffered an adverse employment action because he exercised the right to take a medical leave and the time period between his medical leave and termination was relatively short.

Based on the foregoing, Defendant’s demurrer to the fifth cause of action is OVERRULED.

Sixth Cause of Action for Failure to Provide Reasonable Accommodations in Violation of FEHA

FEHA prohibits an employer from failing to make reasonable accommodation for the known physical and mental disability of an employee. (Cal. Gov. Code § 12940(m).) The elements of a failure to accommodate claim are (1) the plaintiff has a disability under the FEHA, (2) the plaintiff is qualified to perform the essential functions of the position, and (3) the employer failed to reasonably accommodate the plaintiff’s disability. (Lui v. City and County of San Francisco (2012) 211 Cal.App.4th 962, 971.) A reasonable accommodation is “[m]odifications or adjustments to the work environment ... that enable a qualified individual with a disability to perform the essential functions of that position.” (Nadaf-Rahrov v. Neiman Marcus Group, Inc. (2008) 166 Cal.App.4th 952, 973.) As with a FEHA discrimination claim, the plaintiff bears the burden of proving that he or she had the ability to perform the essential functions of a job with accommodation. (Id. at 977.)

Government Code section 12940, subsection (n) “declares it an unlawful employment practice for an employer ‘to fail to engage in a timely, good faith, interactive process with the employee or applicant to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee or applicant with a known physical or mental disability or known medical condition.’” (Nadaf-Rahrov v. Neiman Marcus Group, Inc., supra, 166 Cal.App.4th at 961–962.) A prerequisite to liability under section 12940, subsection (n) is whether a reasonable accommodation is available, and the burden is on the employee to prove so. (Nadaf-Rahrov v. Neiman Marcus Group, Inc., supra, 166 Cal.App.4th at 983-984.)

Defendant argues that Plaintiff has not alleged facts of any accommodations that the District could have granted and does not allege any possible accommodations in the Complaint.

In opposition, Plaintiff argues he has alleged sufficient facts to support a cause of action for failure to accommodate given that Plaintiff has a disability and Defendant failed to accommodate Plaintiff’s disability when he was terminated while on medical leave.

The Court finds that Plaintiff has sufficiently alleged accommodations that Defendant could have granted including “accommodations of time off, ergonomic equipment, including a proper shock absorber and a driver seat that was strapped down correctly.” (Compl. ¶ 26.) Plaintiff alleges that he “kept Defendants on notice of his requested accommodations and that he needed medical leave” and that Defendants did not accommodate his disability and terminated him during his medical leave. (Id.) The Court finds this sufficient to support this cause of action.

Based on the foregoing, Defendant’s demurrer to the sixth cause of action is OVERRULED.

Seventh Cause of Action for Failure to Engage in the Interactive Process in Violation of FEHA

In order to allege a cause of action for failure to engage in interactive process, a plaintiff must allege the following facts: (1) plaintiff was an employee of defendant, (2) plaintiff had a disability known by defendant, (3) plaintiff requested that defendant make a reasonable accommodation for his or her disability so that he or she may be able to perform the essential job requirements, (5) plaintiff was willing to participate in an interactive process to determine whether a reasonable accommodation could be made so that he or she would be able to perform the essential job requirements, and (6) defendant failed to participate in a timely good-faith interactive process with plaintiff to determine whether a reasonable accommodation could be made. (Gov. Code, § 12940, subd. (n); CACI No. 2546 [Disability Discrimination—Reasonable Accommodation—Failure to Engage in Interactive Process].) “Two principles underlie a cause of action for failure to provide a reasonable accommodation. First, the employee must request an accommodation. Second, the parties must engage in an interactive process regarding the requested accommodation and, if the process fails, responsibility for the failure rests with the party who failed to participate in good faith.” (Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4thh 34, 54.)

Defendant argues that Plaintiff alleges no specific facts that the District was the cause of the breakdown of the interactive process, and, in fact, it was Plaintiff who caused the breakdown of the interactive process. Defendant contends that Plaintiff is now on the 39 month reemployment list and can be reinstated as soon as he is cleared by a doctor to do so with or without a reasonable accommodation.

In opposition, Plaintiff cites to case authority discussing failure to provide a reasonable accommodation without any argument.

In reply, Defendant points out that Plaintiff does not even attempt to demonstrate that he alleged specific facts that the District was the cause of the breakdown of the interactive process, or that Plaintiff requested any possible accommodations.

The Court finds that although Plaintiff alleges that he reported the disability and requested accommodation, there are no other facts alleged to demonstrate that Defendant failed to participate in a timely good-faith interactive process. There are simply insufficient facts to show any back and forth communication or any facts to show that Plaintiff was diligent in participating in the interactive process to determine whether a reasonable accommodation could be made.

Based on the foregoing, Defendant’s demurrer to the seventh cause of action is SUSTAINED WITH LEAVE TO AMEND.

Eighth Cause of Action for Wrongful Termination in Violation of Public Policy

“The elements of a claim for wrongful discharge in violation of public policy are (1) an employer-employee relationship, (2) the employer terminated the plaintiff’s employment, (3) the termination was substantially motivated by a violation of public policy, and (4) the discharge caused the plaintiff harm.” (Yau v. Allen (2014) 229 Cal.App.4th 144, 154.) A four-part test is utilized to determine whether a particular policy can support a common law wrongful termination claim. The “policy” in question must meet the following requirements: (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.)

Defendant contends that Plaintiff cannot maintain his cause of action for wrongful termination because it is barred by Government code section 815(a) which states: “Except as otherwise provided by statute: (a) A public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person.” Additionally, Defendant argues that Plaintiff alleges no facts demonstrating compliance with the Government Claims Act, which is a mandatory prerequisite to filing suit against a public entity or an employee of same.

In opposition, Plaintiff contends that Defendant incorrectly argues that Plaintiff’s wrongful termination claim is duplicative of Plaintiff’s causes of action under the FEHA. Plaintiff argues that FEHA remedies are not preemptive because the FEHA expressly does not preempt common law tort claims, the FEHA’s remedies are not exclusive and do not bar a tort claim for wrongful discharge in violation of public policy.

In reply, Defendant points out that Plaintiff is correct in that FEHA does not preempt common law tort claims, but Government Code § 815(a) and Miklosy v. Regents of University of California explicitly prohibit a common law cause of action for wrongful termination against a public entity. Further, Defendant contends that even if this common law tort was allowed against a public entity, which it is not, Plaintiff failed to allege any compliance with the Government Tort Claim Act.

The Court finds that Government Code § 815(a) appears to bar Plaintiff’s wrongful termination action given that the California Supreme Court in Miklosy v. Regents of University of California held that Government Code § 815 bars Tameny actions (i.e., claims for wrongful discipline and wrongful termination) against a public entity. Plaintiff has not provided any arguments refuting this.

Based on the foregoing, Defendant’s demurrer to the eighth cause of action is SUSTAINED WITHOUT LEAVE TO AMEND.

Motion to Strike

Defendant moves to strike allegations in the Complaint related to punitive damages; attorneys’ fees; general damages pursuant to Welfare and Institutions Code section 15657 and Code of Civil Procedure section 377.34; injunctive relief; and the Department of Public Health.

Punitive Damages, Attorney Fees, and General Damages

Defendant argues that punitive damages are barred against a public entity, citing to Government Code section 818 which provides: “Notwithstanding any other provision of law, a public entity is not liable for damages awarded under Section 3294 of the Civil Code or other damages imposed primarily for the sake of example and by way of punishing the defendant.” Defendant requests that the Court strike punitive damages at paragraphs 46, 57, 69, 75, 87, 95, 103, and 114; and page 19, lines 14-15 of the Complaint as it is improper.

Plaintiff provides no arguments opposing the motions to strike punitive damages.

The Court finds Defendant’s arguments and citation of authority to have merit.

Based on the foregoing, Defendant’s motion to strike allegations related to punitive damages is GRANTED WITHOUT LEAVE TO AMEND.

Prejudgment Interest

Defendant argues that Plaintiff cannot recover prejudgment interest against a public entity, citing to Civil Code section 3291 which provides: “This section shall not apply to a public entity, or to a public employee for an act or omission within the scope of employment, and neither the public entity nor the public employee shall be liable, directly or indirectly, to any person for any interest imposed by this section.” Defendant requests the Court strike prejudgment interest found on page 19, lines 8-9 of the Complaint.

In opposition, Plaintiff argues that Civil Code section 3291 does not support Defendant’s position as section 3291 concerns a personal injury which is sustained by the tort of any other person, corporation, association, etc. Plaintiff contends that section 3291 does not state that prejudgment interest does not apply, but that if a personal injury is alleged to be caused by a public entity, or public employee during the scope of their employment, then neither the public entity nor the public employee is liable. Plaintiff cites to Civil Code section 3271 which he argues clearly states that a public entity is liable for prejudgment interest. California Civil Code section 3287 states: “A person who is entitled to recover damages certain, or capable of being made certain by calculation, and the right to recover which is vested in the person upon a particular day, is entitled also to recover interest thereon from that day…. This section is applicable to recovery of damages and interest from any debtor, including the state or any county, city, city and county, municipal corporation, public district, public agency, or any political subdivision of the state.”

In reply, Defendant argues that public entities and public employees are specifically exempted from recovering prejudgment interests in cases such as the instant one.

The Court finds Plaintiff’s arguments to be unpersuasive as section 3291 exempts public entities and employees from being liable for interest imposed by this section and not liability in general for personal injuries. Additionally, the statute that Plaintiff cites is not in conflict with section 3291, which specifically deals with award of prejudgment interest against public entities or employees for acts or omissions within the scope of employment.

Based on the foregoing, Defendant’s motion to strike allegations related to prejudgment interest is GRANTED.

Conclusion

Defendant’s demurrer is SUSTAINED WITH 30 DAYS LEAVE TO AMEND as to the first, third, and seventh causes of action. The demurrer SUSTAINED WITHOUT LEAVE TO AMEND as to the eighth cause of action, and OVERRULED as to the second, fourth, fifth and sixth, causes of action. Defendant’s motion to strike is GRANTED in its entirety.

Defendant to give notice.