Judge Yolanda Orozco, Case 19STCV33158 2022-07-25 Tentative Ruling

Counsel may submit on the tentative ruling by emailing Dept. 31 before 8:30 the morning of the hearing. The email address is smcdept31@lacourt.org. Please do not call the court to submit on the tentative. Please do not submit to the tentative ruling on behalf of the opposing party. Please do not e-mail the Court if you plan to appear and argue.

In deciding whether to submit on the tentative ruling or attend the hearing and present oral argument, please keep the following in mind:

The tentative rulings authored by this court reflect that the court has read and considered all pleadings and evidence timely submitted to the court in connection with the motion, opposition, and reply (if any). Because the pleadings were filed, they are part of the public record.

Oral argument is not an opportunity to simply regurgitate that which a party set forth in its pleadings. Nor, is oral argument an opportunity to "make a record" when there is no court reporter present and the statements and arguments of counsel are already part of the record because they were set forth in the pleadings. Finally, simply because a party or attorney disagrees with the court's analysis and ruling or is not satisfied with it does not necessarily warrant oral argument when no new arguments will be articulated.

If you submit on the tentative, you must immediately notify all other parties email that you will not appear at the hearing. If you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the motions. If all parties to the motion submit, this tentative ruling will become the final ruling after the hearing date and it will be memorialized in a minute order. This tentative ruling is not an invitation, nor an opportunity, to file further documents relative to the hearing in question. No such document will be considered by the Court.

**Tentative rulings on Motions for Summary Judgment will only be available for review in the courtroom on the day of the hearing.

In this action, several sheriff’s deputies (“Plaintiffs”) who were formerly assigned to the East L.A. station allege that they were pressured to quit their jobs or leave the station and that they were otherwise harassed by other deputies who are alleged members of a gang known as The Banditos. They allege discrimination, harassment, retaliation, and related claims against Defendant County of Los Angeles (“County”) and allege assault, battery, and other claims against Individual Defendants Rafael “Rene” Munoz (“Munoz”), Gregory Rodriguez (“Rodriguez”), David Silverio (“Silverio”), and Michael Hernandez (“M.Hernandez”) (collectively “Individual Defendants”). On September 18, 2019 Plaintiffs filed a Complaint.

The operative pleading is the Sixth Amended Complaint (“SAC”). Defendants now demur and move to strike the SAC.

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. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.) 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. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.) “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, supra, 147 Cal.App.4th at p. 747.)

The County demurs to Plaintiffs’ cause of action for harassment and hostile work environment (second cause of action), race/ethnicity discrimination (fourth cause of action), failure to take all steps to prevent discrimination (fifth cause of action), IIED (seventh cause of action), assault (eight cause of action), and battery (ninth cause of action)

The County claims that Plaintiffs’ harassment and discrimination claims fail because they failed to allege that they were race-related. The County also contends that Plaintiffs’ Fifth Amended Complaint (“FAC”) shows that the SAC is a sham pleading because the FAC made clear that Plaintiffs were harassed for defying the Banditos and not for being Latino, and Plaintiffs allegation in the SAC about racial discrimination contradict earlier allegations that they were harassed for defying the Banditos.

Plaintiffs contend that the SAC is not a sham and that they have alleged the same general set of facts and amended the FAC to eliminate ambiguities and confusion, and did not plead facts that are in contradiction with prior pleadings.

“Under the sham pleading doctrine, plaintiffs are precluded from amending complaints to omit harmful allegations, without explanation, from previous complaints to avoid attacks raised in demurrers or motions for summary judgment.” (Deveny v. Entropin, Inc. (2006) 139 Cal.App.4th 408, 425.) “‘Generally, after an amended pleading has been filed, courts will disregard the original pleading. However, an exception to this rule is found ... where an amended complaint attempts to avoid defects set forth in a prior complaint by ignoring them. The court may examine the prior complaint to ascertain whether the amended complaint is merely a sham.’ Moreover, any inconsistencies with prior pleadings must be explained; if the pleader fails to do so, the court may disregard the inconsistent allegations. [Citation.] Accordingly, a court is ‘not bound to accept as true allegations contrary to factual allegations in former pleading in the same case.’ [Citation.]” (Larson v. UHS of Rancho Springs, Inc. (2014) 230 Cal.App.4th 336, 343; quoting Vallejo Development Co. v. Beck Development Co. (1994) 24 Cal.App.4th 929, 946.)

As a preliminary matter, the Court finds that the SAC is not a sham pleading as to the second and fourth causes of action. While the County contends that Plaintiffs’ allegations in the SAC contradict their allegations in the FAC, a review of the FAC reveals that Plaintiffs had alleged that they were harassed “based on their race and for reporting and speaking out against wrongful and discriminatory treatment based on their race.” (See FAC ¶¶ 75, 101, 289, 301, 309, 314.) While Plaintiffs did remove some language about being targeted for speaking out against the Banditos, the new allegations are consistent with their prior allegations, and they still allege that they were targeted for being Latino, “speaking out,” and refusing to engage in unlawful conduct. (SAC ¶¶ 5, 15, 110, 234, 241.)

In addition, the County’s contention that Plaintiffs have failed to state these causes of action because they failed to allege that the conduct complained of was race related is misguided. Throughout the SAC Plaintiffs allege that they were discriminated against and targeted because they were “Latino” while other non-Latino deputies were not subjected to this harassment. (SAC ¶¶ 3, 21, 68, 85, 92, 96, 101, 160, 162 164; see also SAC generally.)

Furthermore, the Court has reviewed the allegations in the SAC and finds that they state a claim for harassment and discrimination.

The Fair Employment and Housing Act prohibition on harassment states: “It is an unlawful employment practice. . . .[f]or an employer, because of race . . . to harass an employee.” (Govt. Code, § 12940(j)(1).) A hostile work environment is a recognized form of harassment. To establish a hostile work environment, harassment must be so severe or pervasive as to alter the conditions of the victim’s employment and create an abusive working environment based on the protected characteristic. (See Hughes v. Pair (2009) 46 Cal.4th 1045, 1043.) Harassment must be of a repeated, routine, or generalized nature when the harassing conduct is not severe. (See Lyle v. Warner Bros. Television Productions (2006) 38 Cal.4th 264, 283.) Harassment that is occasional, isolated or sporadic is insufficient. (See id.) Individual employees may be liable for their own acts of harassment. (See Govt. Code, § 12940(j)(3); Reno v. Baird (1998) 18 Cal.4th 640, 644-45.)

Government Code section 12940 provides that it is unlawful for an employer to refuse to hire or employ a person or to discharge a person from employment, or to discriminate against the person in compensation or in terms, conditions, or privileges of employment on the basis of race. (See Govt. Code, § 12940(a).)

Plaintiffs allege that they were harassed and discriminated against by the County and Individual Defendants from June 2017 to the fall of 2019 because of their Latino race, which included being forced to work up to twenty-four hours without sleep or food; pressured into not reporting overtime on their timecards (which resulted in countless of hours without pay); being “taxed” to pay part of their salary to support gang activities; slamming Plaintiffs with calls so they would work overtime without pay; sending daily hostile messages, and assaulting and battering Plaintiffs. (SAC ¶¶ 194-220, 249-265.)

Accordingly, the County’s contention that Plaintiffs failed to state these causes of action is without basis.[1]

The County’s Demurrer to the second, fourth, and fifth causes of action is OVERRULED.

The County contends that Plaintiffs’ IIED cause of action fails because it is barred by the workers’ compensation exclusivity, and Plaintiffs failed to allege specific facts establishing severe emotional distress resulting from the County’s conduct.

The workers' compensation law applies to employee injuries “arising out of and in the course of the employment” when the statutorily specified “conditions of compensation concur.” (Lab. Code, § 3600.) Generally, workers' compensation is the exclusive remedy for such injuries. (Id., §§ 3600(a), 3601.) However, for example, discrimination and harassment based on race, national origin, or sex are not a normal incident of employment, and accordingly, a claim for damages under FEHA would not be barred by the exclusive remedy provisions of the workers' compensation act. (Accardi v. Superior Court (1993) 17 Cal.App.4th 341, 347, 21 Cal.Rptr.2d 292.) As the Claxton court explained, “[S]ome claims, including those based on sexual or racial discrimination or other conduct contrary to fundamental public policy, are not subject to the exclusivity provisions of the workers' compensation law. [Citation.] Thus, such claims may be the subject of both workers' compensation proceedings and civil actions. [Citations.]” (Claxton, supra, 34 Cal.4th at p. 373.) The Legislature “did not intend that its objective of providing relief from civil rights violations would be defeated by the exclusive remedy provision of the workers' compensation act.” (Flait v. North American Watch Corp. (1992) 3 Cal.App.4th 467.)

Plaintiffs’ allegations as to this cause of action are based on the harassment and discriminatory conduct by Defendants based on Plaintiffs’ race. Accordingly, Plaintiffs cause of action for IIED is not subject to the exclusivity provisions of the workers' compensation law.

In addition, the Court finds that Plaintiffs have alleged sufficient facts to establish their cause of action for IIED. (See SAC ¶¶ 299-316.) The County contends that Plaintiffs allegations supporting the severe emotional distress are too vague and trivial; however, the Court disagrees.

“Severe emotional distress means emotional distress of such substantial quality or enduring quality that no reasonable [person] in civilized society should be expected to endure it.” (Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 1004.)

“As a result of the Defendants’ conduct: Plaintiff Granados suffered symptoms of a heart attack and [PTSD], Plaintiff Gonzalez was hospitalized multiple times for heart attack symptoms, Plaintiff Zaredini almost died in a motorcycle accident . . .and Plaintiff Contreras suffered spiking high blood pressure to the point his doctor became highly concerned about a stroke occurring, and these Plaintiffs and Plaintiffs Escobedo, Casas,[] Lemus, and Hernandez suffered [from] . . . severe insomnia, intense reoccurring nightmares about being murdered by the Banditos, unending severe headaches, hair loss, [and] depression.”

The Court finds that being subjected to severe insomnia, unending severe headaches, and intense reoccurring nightmares about being murdered is emotional distress of such a quality that no reasonable person should be expected to endure it.

Thus, the County’s Demurrer to Plaintiffs’ seventh cause of action is OVERRULED.

The County contends that it is immune from liability from assault and battery because the acts were committed by its employees outside the scope of their employment. In addition, to the extent that Plaintiffs alleged that they occurred within the scope of their employment, workers’ compensation provides exclusive remedy.

“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.” (Gov. Code § 815(a).) “A public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee or his personal representative.” (Id. § 815.2(a).)

Labor Code section 3601(b) “unambiguously prohibits imposing civil liability on an employer for one employee's assault and battery of another.” (Fretland v. County of Humboldt (1999) 69 Cal.App.4th 1478, 1487.) “The prohibition against imposing vicarious liability on an employer does not apply when there was positive misconduct by the employer such as when the employer ratified the tortious conduct of its employee and thereby became liable for the employee's wrongful conduct as a joint participant.” (Fretland v. County of Humboldt (1999) 69 Cal.App.4th 1478, 1489.)

Plaintiffs contends that they properly alleged that the County ratified the conduct of Individual Defendants at the Kennedy Hall incident because the Individual Defendants were promised their jobs back. (SAC ¶¶ 46, 50.)

The County contends that Plaintiffs’ allegations that the Individual Defendants could get their job back by appealing are sham allegations.

As a preliminary matter, there are no allegations in the SAC that the Individual Defendants’ acts were committed outside the scope of their employment, and there are allegations that the incident occurred at a department event. (SAC, ¶ 43.) Accordingly, The County has failed to establish that this cause of action is subject to Government Code section 815(a).

In addition, the Court finds that Plaintiffs’ new allegations, which allege that the County ratified the Individual Defendants’ conduct by promising their jobs back is not a sham pleading because it does not omit harmful allegations or allegations that are inconsistent with prior allegations. Plaintiffs have provided more facts to support their previous allegations. In the FAC, Plaintiffs simply alleged that the County terminated “Big Listo, Silver, G-Rod”, and that “Bam Bam” could not be subjected to scrutiny because he retired. In contrast, in the SAC, Plaintiffs allege that Big Listo, Silver, G-Rod were terminated, but were told that if they appealed their termination the County would throw their case out and they would get their jobs back; and Sheriff Villanueva promised the Individual Defendants that he would rig the investigation so there would be no criminal prosecution. (SAC, ¶ 327, 334.)

Based on the allegations set forth above, the Court finds that Plaintiffs have set forth sufficient facts to establish that the County ratified the Individual Defendants’ conduct.

For the reasons stated, the County’s Demurrer to Plaintiffs’ eighth and ninth causes of action is OVERRULED.

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, subd. (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 Civ. Proc., § 436, subd. (a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782.)

The County moves to strike paragraphs 360-61 of the SAC which references 42 U.S.C. § 1985 because these do not state facts to support the purported tenth cause of action for conspiracy to interfere with civil rights.

The County first argues that the intracorporate conspiracy doctrine bars the § 1985 claim against it because it could not have conspired with its own employees. (Motion at pg. 6-7, relying on: Hoefer v. Fluor Daniel, Inc., (C.D. Cal. 2000) 92 F. Supp. 2d 1055, 1057; Doctors’ Co. v. Superior Court (1989) 49 Cal. 3d 39, 45[“Agents and employees of a corporation cannot conspire with their corporate principal or employer where they act in their official capacities on behalf of the corporation . . . .”]; Avalos v. Baca (C.D. Cal. 2007) 517 F. Supp. 2d 1156, 1170 [(“[S]ince a municipal entity cannot conspire with itself, plaintiff’s claim against defendants in their official capacity fails.” (Affirmed in (9th Cir. 2010) 596 F.3d 583.))

Plaintiffs cite to an unpublished Court of Appeal decision where the Court held that “the intra-corporate conspiracy doctrine would not apply if the actionable conduct is outside the scope of employment. . . . Conduct outside the scope of employment consists of conduct outside the scope of necessary job performance, conduct presumably engaged in for personal gratification, because of meanness or bigotry, or for other personal motives. It might include using slurs or derogatory drawings, physically interfering with freedom of movement, engaging in unwanted sexual advances, and similar conduct, which is unnecessary to carry out the legitimate objectives of the employer. (Reaves v. County of Los Angeles (Cal. Ct. App., Dec. 14, 2015, No. B255920) 2015 WL 8769973, at *10 (citations and quotations omitted.))

Based on the authorities provided by the parties and on research conducted by the Court, the Court finds that there is no binding authority presented to the Court, which establishes that the County can be held liable for conspiracy with its own employees. “To hold that a subordinate employee of a corporation can be liable for conspiring with the corporate principal would destroy what has heretofore been the settled rule that a corporation cannot conspire with itself. In the absence of a clear statement from the Supreme Court that this change in the law is intended, we will not so impair the agent's immunity rule.” (Black v. Bank of America (1994) 30 Cal.App.4th 1, 6 (citation omitted.))

The Individual Defendants demur to Plaintiffs second and seventh causes of action on the grounds that Plaintiffs fail to state those causes of action.

As discussed above in detail, the Court found that Plaintiffs had stated sufficient facts to establish the second and seventh causes of action and this is applies to the Individual Defendants.

The parties are strongly encouraged to attend all scheduled hearings virtually or by audio. Effective July 20, 2020, all matters will be scheduled virtually and/or with audio through the Court’s LACourtConnect technology. The parties are strongly encouraged to use LACourtConnect for all their matters. All social distancing protocols will be observed at the Courthouse and in the courtrooms.

[1] The Court notes that the County’s grounds for demurring to the fifth cause of action was based on Plaintiffs failure to state the harassment and discrimination causes of action.

[2] In light of this ruling, the County’s other grounds for moving to strike will not be analyzed.