Memorandum Points and AuthoritiesCal. Super. - 6th Dist.June 18, 202010 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Electronically filed by Superior Court of CA, County of Santa Clara, JAMES R. WILLIAMS, County Counsel (SB. #271253) 0“ 8/12/20295'16 PM KARL A. SANDOVAL, Lead Deputy County Counsel (SB. #170190F9V'9W9d By-M VU ROBIN M. WALL, Deputy County Counsel (SB. #235690) Case #200V367465 OFFICE 0F THE COUNTY COUNSEL Env #47551 77 70 West Hedding Street, East Wing, Ninth Floor San José, California 951 10-1770 Telephone: (408) 299-5900 . . i _ Exempt from Filing Fees FaCSImlle' (408) 292 7240 Pursuant to Gov. Code § 6103 Attorneys for Defendants COUNTY OF SANTA CLARA and INESSA CHRISTY SUPERIOR COURT OF CALIFORNIA, COUNTY OF SANTA CLARA LAURA ATONDO, MONA BROWN, N0. 20-CV-367465 CATHERINE CARRILLO, & OLGA VIZCARRA, DEFENDANTS COUNTY OF SANTA CLARA AND INESSA CHRISTY’S Plaintiffs, MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF V. DEMURRER COUNTY OF SANTA CLARA, INESSA Date: TBD CHRISTY, Does 1-10, Time: TBD Dept: TBD Defendants. Judge: Date of First Filing: June 18, 2020 Defendants County 0f Santa Clara and Inessa Christy’s 20-CV-367465 Memorandum 0f Points and Authorities ISO Demurrer 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 II. III. IV. TABLE OF CONTENTS Page INTRODUCTION ............................................................................................................... 1 PLAINTIFFS’ ALLEGATIONS ........................................................................................ 1 A. DISCRIMINATION, HARASSMENT, AND RETALIATION CLAIMS ............. 1 B. RALPH ACT AND BANE ACT CLAIMS .............................................................2 C. PLAINTIFF BROWN’S RELIGIOUS HARASSMENT CLAIM .......................... 3 D. PURPORTED EXHAUSTION OF ADMINISTRATIVE REMEDIES .................3 LEGAL STANDARD ......................................................................................................... 3 ARGUMENT ......................................................................................................................4 A. THE COMPLAINT DOES NOT SUFFICIENTLY ALLEGE COMPLIANCE WITH THE GOVERNMENT CLAIMS ACT, AND PLAINTIFFS DID NOT PRESENT A CLAIM TO THE COUNTY BEFORE FILING SUIT, THUS MANDATING DISMISSAL OF THEIR SIXTH AND SEVENTH CAUSES OF ACTION. ...........................................................................................................4 B. THE SEVENTH CAUSE OF ACTION DOES NOT STATE FACTS SUFFICIENT TO STATE A CLAIM UNDER THE BANE ACT. ........................ 8 C. THE SIXTH CAUSE OF ACTION DOES NOT STATE FACTS SUFFICIENT TO STATE A CLAIM UNDER THE RALPH ACT ..................... 10 D. PLAINTIFF BROWN’S FOURTH CAUSE OF ACTION DOES NOT ALLEGE FACTS SUFFICIENT TO STATE A CLAIM FOR RELIGIOUS HARASSMENT. ................................................................................................... 1 1 CONCLUSION ................................................................................................................. 14 1 Defendants’ Memorandum 0f Points and Authorities in Support 0f Demurrer 20-CV-367465 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES Page CASES Alfaro v. ley. Hous. Improvement Sys. & Planning Assn, Ina, (2009) 171 Cal.App.4th 1356, 1371 .................................................................................... 3 Allen v. City ofSacramento, (2015) 234 Cal.App.4th 41 .................................................................................................. 8 B&P Dev. Corp. v. City ofSaratoga, (1986) 185 Ca1.App.3d 949 .................................................................................................4 Castenada v. City ofNapa, Cal, (ND. Cal. May 3, 1996, No. C-95-4094) 1996 WL 241818, *6 ......................................... 5 City ofStockton v. Superior Court, (2007) 42 Ca1.4th 730 ......................................................................................................4, 7 Coon v. Joseph, (1987) 192 Ca1.App.3d 1269 ............................................................................................. 11 Cornell v. City & Cnly. ofSan Francisco, (2017) 17 Ca1.App.5th 766 .................................................................................................. 8 Doe v. State ofCalifornia, (2017) 8 Ca1.App.5th 832 .................................................................................................... 8 E.E.O.C. v. Sunbelt Rentals, Ina, (4th Cir. 2008) 521 F.3d 306 ............................................................................................. 13 Feingold v. New York, (2nd Cir. 2004) 366 F.3d 138 ............................................................................................. 13 Fisher v. San Pedro Peninsula Hospital, (1989) 214 Ca1.App.3d 590 ............................................................................................... 12 Gabrielle A. v. Cnly. ofOrange, (2017) 10 Ca1.App.5th 1268 .............................................................................................. 10 Gatto v. County ofSonoma, (2002) 98 Ca1.App.4th 744 .................................................................................................. 5 Gong v. City ofRosemead, (2014) 226 Ca1.App.4th 363 ................................................................................................6 Harris v. Forklift Systems, Ina, (1993)510U.S. 17 ............................................................................................................. 11 Hernandez v. City ofSan Jose, (ND. Cal.) 2016 WL 5944095, *11 .................................................................................. 10 I.H. by & through Hunter v. Oakland Sch. for the Arts, (ND. Cal. 2017) 234 F.Supp.3d 987 ................................................................................. 10 2 Defendants’ Memorandum 0f Points and Authorities 20-CV-367465 in Support 0f Demurrer 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Inman v. Anderson, et al., (N.D. Cal. 2018) 294 F.Supp.3d 907 ................................................................................... 5 Jeflerson v. Superior Court, (C.D. Cal. Oct. 16, 2008, N0. EDCV O7-700-VAP) 2008 WL 11336497, *8-9 ................. 5 Julian v. Mission Community Hospital, (2017) 11 Cal.App.5th 360 .................................................................................................. 8 Karim-Panahi v. Los Angeles Police Dep ’t, (9th Cir. 1988) 839 F.2d 621 ................................................................................................ 5 Kim v. Konad USA Distribution, Ina, (2014) 226 Cal.App.4th 1336 ..............................................................................................6 Kodwavi v. Intercontinental Hotels Group Resources, Ina, (N.D. Cal. 2013) 966 F.Supp.2d 971 ........................................................................... 12, 13 Lee v. Eden Medical Center, (N.D. Cal. 2010) 690 F.Supp.2d 1011 ............................................................................... 13 Life v. County ofLos Angeles, (1991) 227 Cal.App.3d 894 .................................................................................................4 Manatt v. Bank ofAmerica, NA, (9th Cir. 2013) 339 F.3d 792 ............................................................................................. 12 McCoy v. Pacific Maritime Assn, (2013) 216 Cal.App.4th 283 .................................................................................. 12, 13, 14 Nevarez v. Forty Niners Football C0., LLC, et al., (2018) 326 F.R.D. 562 ......................................................................................................... 5 Robles v. Agreserves, Ina, (E.D. Cal. 2016) 158 F.Supp.3d 952 ............................................................................ 13, 14 Rogers v. Centrone, (1968) 261 Cal.App.2d 361 .................................................................................................4 Shirk v. Vista Unified Sch. Dist, (2007) 42 Cal.4th 201 .......................................................................................................... 5 Shoyoye v. County ofLos Angeles, (2012) 203 Cal.App.4th 947 ................................................................................................9 State v. Superior Court (Bodde), (2004) 32 Cal.4th 1234 .................................................................................................... 4, 5 Venters v. City ofDelphi, (7th Cir. 1997) 123 F.3d 956 ............................................................................................. 14 Westcon Const. Corp. v. County ofSacramento, (2007) 152 Cal.App.4th 183 ................................................................................................4 3 Defendants’ Memorandum 0f Points and Authorities 20-CV-367465 in Support 0f Demurrer 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Winarto v. Toshiba America Electronics Components, Ina, (9th Cir. 2001) 274 F3d 1276 ............................................................................................ 10 OTHER AUTHORITIES Civil Code § 51 ....................................................................................................................................... 7 § 51.5 .................................................................................................................................... 7 §51.7 ...................................................................................................................... 5,7,8,10 § 52 ................................................................................................................................... 7, 8 § 52(f) ................................................................................................................................... 7 § 52.1 ............................................................................................................................ 5, 8, 9 § 52.1(b) ............................................................................................................................... 8 § 52.1(0) ............................................................................................................................... 7 § 52.1(k) ............................................................................................................................... 9 § 54 ....................................................................................................................................... 7 § 54.1 .................................................................................................................................... 7 § 54.2 .................................................................................................................................... 7 Code Civil Procedure § 425.10(a)(1)-(2) ................................................................................................................ 3 § 430.10(e) ........................................................................................................................... 3 § 430.30(a) ........................................................................................................................... 3 § 430.41 ................................................................................................................................ 3 Evidence Code § 452, subd. (c) .......................................................................................................6 Government Code § 900 et seq. ......................................................................................................................... 4 § 900.4 .................................................................................................................................. 4 § 905 ..................................................................................................................................... 4 § 912.4 .................................................................................................................................. 7 § 912.6 .................................................................................................................................. 7 § 915 ..................................................................................................................................... 4 § 915(a) ................................................................................................................................ 4 § 945.6(a)(1) ........................................................................................................................ 7 § 950 ..................................................................................................................................... 4 § 950.2 .................................................................................................................................. 4 § 951 ..................................................................................................................................... 4 § 12923(a) .......................................................................................................................... 11 § 12948 ................................................................................................................................. 7 Judicial Council of California Civil Jury Instruction (CACI) 3064 ...................................................................................................................... 11 (CACI) 3066 ........................................................................................................................ 8 Santa Clara County Ordinance Code, § A9-5 .................................................................................. 4 4 Defendants’ Memorandum 0f Points and Authorities 20-CV-367465 in Support 0f Demurrer 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I. INTRODUCTION Defendants County 0f Santa Clara and Inessa Christy demur to the Complaint filed by Plaintiffs Laura Atondo, Mona Brown, Catherine Carrillo, and Olga Vizcarra. Defendants’ Demurrer should be sustained because: 1. Plaintiffs’ claims under the Ralph Act and the Bane Act (their sixth and seventh causes 0f action, respectively) do not state causes of action and do not allege sufficient facts demonstrating compliance With the Government Claims Act before filing suit-and, as a matter of judicial notice, Plaintiffs have not presented a claim t0 the County as required by that Act; and 2. PlaintiffMona Brown’s Fair Employment & Housing Act (FEHA) claim for religious harassment (her fourth cause of action) does not state a cause of action. II. PLAINTIFFS’ ALLEGATIONS Plaintiffs collectively bring claims under FEHA for age and ancestry discrimination, age and ancestry harassment, and retaliation (first, second, third and fifth causes of action); for Violation of the Ralph Act (sixth cause 0f action); and for Violation 0f the Bane Act (seventh cause of action). PlaintiffMona Brown alone brings a FEHA claim for religious harassment (fourth cause 0f action). A. DISCRIMINATION, HARASSMENT, AND RETALIATION CLAIMS Plaintiffs allege that they are current and former County employees in the In-Home Supportive Services (IHSS) program. According t0 Plaintiffs, IHSS management-their direct supervisor, Defendant Christy, and others-have discriminated against and harassed them in ways including: (1) asking Atondo and Vizcarra why they did not return to work after a meeting (Complaint, 1] 24); closely scrutinizing their work and standing close t0 them (1] 25); failing to respond to their concerns about a “crushing work load” (1] 28); possibly “secretly recording” meetings with Christy (W 29, 60, 83, 115); without saying a word, watching Plaintiffs leave work (1] 32); becoming angry and storming out 0f a meeting (1] 37); pressuring Brown about her work documentation (fl 5 1); speaking to her in a loud voice (1] 61); not offering Carrillo help With a “huge backlog” (1] 78); telling Carrillo that she would be disciplined if she did not clear the backlog (fl 81); 1 Defendants’ Memorandum 0f Points and Authorities 20-CV-367465 in Support 0f Demurrer 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 denying leaves and disputing breaks (W 83, 85-86, 109-1 10); ordering Vizcarra to come to Christy’s office in front of co-workers (1] 112); and “hoovering” [sic] over their desks (1] 116). Plaintiffs also allege that they were denied promotions and transfers. (Comp1., 1W 52, 58-59, 76, 87, 104, 108, 1 13 .) Plaintiffs claim that in June 2019, Defendant Christy, When confronted by Plaintiffs With their suspicion that she had secretly recorded meetings, “became irate,” reached across Vizcarra and pointed at Carrillo, and yelled, “Stop talking! I am your supervisor!” and “Don’t say another word, I don’t want t0 hear this.” But this “meltdown” and “eruption” did not dissuade Carrillo from communicating her complaints 0f mistreatment by Christy. (Comp1., 1H] 89, 114.) B. RALPH ACT AND BANE ACT CLAIMS Plaintiffs allege that Carrillo is a vocal union supporter and that Vizcarra is a known supporter of the union Who sometimes served as a union steward. (Compl., 1N 74, 103.) According to Plaintiffs, in 2013-seven years before this action was filed-the County added additional duties t0 their Program Service Aide positions, but they did not receive a pay increase t0 account for these additional job responsibilities. Plaintiffs’ union grieved the issue, seeking more pay and a job reclassification. The grievance was arbitrated and “some retroactive monetary compensation was obtained but Without any reclassification or pay increase.” (C0mp1., 1H] 72-73.) Plaintiffs conclude that IHSS managers “strongly objected” t0 Plaintiffs’ demand “as union members” to be compensated for additional duties and for seeking reclassification. Plaintiffs claim that the County resolved t0 remove Plaintiffs from their unit by making their workplace so hostile and intimidating that they would be forced t0 resign and that managers directed Defendant Christy t0 compel Plaintiffs’ removal or resignation from the unit. Christy is alleged t0 have complied with this directive through “public humiliation,” getting into the physical, personal space of Plaintiffs, and secretly taping her meetings With Plaintiffs. Plaintiffs further allege, With n0 supporting facts, that Christy instructed co-workers to monitor and harass Plaintiffs. (Comp1., W 102, 176-179.) Finally, Plaintiffs allege-again With n0 supporting factS-that the County “has a policy and practice 0f interfering through threats, intimidation 0r coercion” With Plaintiffs’ rights “to utilize the protections accorded them by the collective bargaining agreement.” (Comp1., W 185-186.) 2 Defendants’ Memorandum 0f Points and Authorities 20-CV-367465 in Support 0f Demurrer 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 C. PLAINTIFF BROWN’S RELIGIOUS HARASSMENT CLAIM In her fourth cause 0f action, PlaintiffMona Brown alleges that she was harassed based 0n her religion because: (1) “over the years,” management directed Brown to attend annual workplace “Christmas celebrations” t0 receive job-related announcements, even though she is an observant Jehovah’s Witness; (2) “over the years” (but not since 2018), supervisors rejected Brown’s request that they observe her wedding anniversary 0r the anniversary 0f her hire date-instead 0f observing her birthday-because participation in birthday lunch celebrations (hers or those of others) is contrary t0 her beliefs; and, (3) her co-worker Alex once joked nearby that any Jehovah’s Witness Who came t0 his door t0 evangelize would hear “my shot gun” While he used his “bates stamper” t0 mimic what someone knocking on his door would hear. (C0mp1., 1H] 56-57, 155-157.) D. PURPORTED EXHAUSTION OF ADMINISTRATIVE REMEDIES Plaintiffs’ sole allegation regarding compliance with the exhaustion requirements of the Government Claims Act is their conclusory assertion that “Plaintiffs have fully exhausted their statutory administrative remedies.” (C0mp1., 1] 12.) Counsel met and conferred as required by Code of Civil Procedure section 430.41. Their discussion did not resolve the obj ections to the Complaint raised here by Defendants, and this Demurrer followed. (Declaration 0f Robin Wall in Support of Defendants’ Demurrer, W 3-7.) III. LEGAL STANDARD A civil complaint must contain “[a] statement of the facts constituting the cause 0f action” and “[a] demand for judgment for the relief to Which the pleader claims to be entitled.” (Code CiV. Proc. § 425.10, subd. (a)(1)-(2).) T0 state a cause 0f action, the plaintiff must allege all necessary “facts warranting legal relief.” (Alfaro v. Cmty. Hous. Improvement Sys. & Planning Assn, Inc. (2009) 171 Ca1.App.4th 1356, 1371.) When a ground for objection t0 a complaint, such as the failure to state facts sufficient to constitute a cause 0f action, appears on the face of the complaint, the objection may be taken by demurrer. (Code CiV. Proc., § 430.10, subd. (e); § 430.30, subd. (21).) “A general demurrer is a trial 0f a pure issue of law and ‘presents the. . .question. . .Whether the plaintiff has alleged sufficient facts to justify any relief.” (Alfaro, supra, 17 Ca1.App.4th at p. 1371, 3 Defendants’ Memorandum 0f Points and Authorities 20-CV-367465 in Support 0f Demurrer 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 quoting B&P Dev. Corp. v. City ofSaratoga (1986) 185 Cal.App.3d 949, 952.) IV. ARGUMENT A. THE COMPLAINT DOES NOT SUFFICIENTLY ALLEGE COMPLIANCE WITH THE GOVERNMENT CLAIMS ACT, AND PLAINTIFFS DID NOT PRESENT A CLAIM TO THE COUNTY BEFORE FILING SUIT, THUS MANDATING DISMISSAL OF THEIR SIXTH AND SEVENTH CAUSES OF ACTION. The Government Claims Act (the “‘Act”), Gov. Code, § 900 et seq., requires the presentation 0f “all claims for money or damages against local public entities” to the public entity for consideration. (GOV. Code, §§ 900.4, 905; City ofStockton v. Superior Court (2007) 42 Ca1.4th 730, 737-738.) A claim against an individual public employee for injury resulting from an act or omission in the scope of his employment as a public employee is barred if a claim against the employing public entity for such injury is barred. (GOV. Code, §§ 950-951 ; Rogers v. Centrone (1968) 261 Ca1.App.2d 361, 365.) Further, presentation of a claim to an employing public entity is a prerequisite to suit by the employee. (GOV. Code, § 950.2.) Under the Act, claimants must meet specific statutory requirements, including delivering or mailing the claim t0 a designated official 0f the public entity. (GOV. Code, § 915, subd. (a).) The designated official for the County is the Clerk of the Board 0f Supervisors. (Santa Clara County 0rd. Code, § A9-5.) The purpose of the Act is not t0 prevent surprise, but t0 provide the public entity sufficient information to enable it t0 adequately investigate claims and to settle them, if appropriate, Without the expense 0f litigation. (City ofStockton, supra, 42 Ca1.4th 730 at p. 738.) Accordingly, a claim must be sent t0 the duly designated “officials Who b[ear] responsibility for evaluating it.” (Life v. County ofLos Angeles (1991) 227 Cal.App.3d 894, 900.) “Notice t0 a subordinate employee of the public entity may not serve these purposes [because such notice] may not assure that the public entity has an opportunity t0 review the claim before suit is filed.” (Westcon Const. Corp. v. County ofSacramento (2007) 152 Ca1.App.4th 183, 200-201.) “[F]ailure to timely present a claim for money or damages t0 a public entity bars a plaintiff from filing a lawsuit against that entity.” (State v. Superior Court (Bodde) (2004) 32 Cal.4th 1234, 1239.) The California Supreme Court explained in Bodde that in an action against a public entity, “a 4 Defendants’ Memorandum 0f Points and Authorities 20-CV-367465 in Support 0f Demurrer 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 plaintiff must allege facts demonstrating 0r excusing compliance with the claim presentation requirement” 0r his complaint can be challenged through a demurrer. (Id. at pp. 1243-1245.) Timely presentation 0f claims is a condition precedent t0 filing suit and an element 0f a plaintiff” s cause 0f action. (Shirk v. Vista Unified Sch. Dist. (2007) 42 Cal.4th 201, 209; Karim-Panahi v. LOS Angeles Police Dep ’t (9th Cir. 1988) 839 F.2d 621, 627.) State law claims under the Ralph Civil Rights Act of 1976 (Civil Code section 5 1 .7 (Ralph Act)) and the Tom Bane Civil Rights Act (Civil Code section 52.1 (Bane Act))-Plaintiffs’ sixth and seventh causes of action, respectively-must be timely presented to the public entity before suit is filed. (See Gatto v. County ofSonoma (2002) 98 Cal.App.4th 744, 763 (finding, in constitutional claim alleged under Civil Code section 52.1, that “[e]xempting damage actions under. . .52.1 from the claim filing requirement. . .Would conflict With the statutory scheme relating to damage claims against public entities and With the relevant case law”), superseded 0n other grounds by statute, Nevarez v. Forty Niners Football C0., LLC, et al. (2018) 326 F.R.D. 562, 574, fn. 8; Inman v. Anderson, et al. (N.D. Cal. 2018) 294 F.Supp.3d 907, 925 (dismissing Bane Act claim for damages based on plaintiff s failure t0 present government claim t0 County); Jeflerson v. Superior Court (C.D. Cal. Oct. 16, 2008, No. EDCV 07-700-VAP) 2008 WL 11336497, *8-9 (rejecting plaintiff’s argument that she was not required to present a timely claim under the Government Claims Act before bringing Ralph Act and Bane Act actions); Castenada v. City ofNapa, Cal. (N.D. Cal. May 3, 1996, No. C-95-4094) 1996 WL 241818, *6 (dismissing plaintiff’s claim under section 5 1.7 and rejecting his argument that the Government Claims Act did not apply to it).) Here, Plaintiffs allege in a conclusory fashion that they “fully exhausted their statutory administrative remedies,” although it is not clear to what remedies they refer 0r how they exhausted them. (C0mp1., 1] 12.) Thus, Plaintiffs d0 not plead the requisitefacts showing that they timely presented, or were excused from presenting, t0 the Clerk of the Board a claim in compliance With the Act’s presentation requirements. (Bodde, supra, 32 Cal.4th at p. 1239.) Plaintiffs conspicuously avoid alleging even the most cursoryfacts evidencing presentation of a claim t0 the County-such as When the claim was presented-to enable the Court t0 assess Whether their Ralph and Bane Act claims are timely. Their failure to adequately and specifically plead that they satisfied the claim 5 Defendants’ Memorandum 0f Points and Authorities 20-CV-367465 in Support 0f Demurrer 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 presentation requirement of the Act requires that the Court sustain Defendants’ Demurrer. Plaintiffs have not adequately alleged-and cannot adequately allege-compliance With the Act because, simply put, they never presented a claim to the County before filing suit. “If a plaintiff alleges compliance with the claims presentation requirement, but the public records d0 not reflect compliance, the governmental entity can request the court t0 take judicial notice under Evidence Code section 452, subdivision (c) that the entity’s records do not show compliance.” (Gong v. City ofRosemead (2014) 226 Cal.App.4th 363, 376.) Here, as shown in the accompanying Request for Judicial Notice (RJN) and Declaration of Mariana Lopez,1 none of the Plaintiffs presented any claim to the Clerk 0f the Board during the period from June 1, 2019, t0 the present, nor did the Clerk 0f the Board actually receive a claim from Plaintiffs during that time. (Lopez Declaration, 1W 2-7 & Exh. A; RJN, Exh. A.) Plaintiffs do not appear to dispute this fact. Based on meet and confer discussions with Plaintiffs’ counsel, Defendants anticipate that Plaintiffs will argue that they were not required to present a claim t0 the County on their sixth and seventh causes 0f action because they instead submitted administrative complaints to the Department of Fair Employment & Housing (DFEH).2 But Plaintiffs’ exhaustion 0f administrative remedies as t0 their FEHA claims (first, second, third, fourth, and fifth causes 0f action) does not excuse them from their obligation t0 satisfy the Government Claims Act on their separate (i.e., non-FEHA) Ralph Act and Bane Act claims-and Plaintiffs have offered no caselaw that supports their position. It is well established that before filing a civil action alleging FEHA Violations, an employee must exhaust her administrative remedies With DFEH. “Exhaustion includes the timely filing 0f administrative complaints addressing the claims and parties at issue, as well as the procurement of right-to-sue letters.” (Kim v. Konad USA Distribution, Inc. (2014) 226 Cal.App.4th 1336, 1345.) 1 In her declaration in support 0f the RJN, Ms. Lopez explains that she is the Clerk of the Board’s Division Manager, Records. 2 On July 30. 2020, Plaintiffs’ counsel emailed Defendants’ counsel DFEH complaints filed on behalf of Plaintiffs, and ensuing DFEH right-to-sue letters, dated January 8, 2020 (Atondo and Brown), January 9, 2020 (Carrillo), and January 3 1, 2020 (Brown). 6 Defendants’ Memorandum 0f Points and Authorities 20-CV-367465 in Support 0f Demurrer 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 By contrast, as demonstrated above, the Government Claims Act involves a very different administrative process intended to provide the public entity sufficient information t0 enable it to adequately investigate claims and t0 settle them, if appropriate, without the expense of litigation. (City ofStockton, supra, 42 Cal.4th at p. 738.) Among other things, upon presentation of a claim, the public entity has four choices: (1) “allow” the claim; (2) “reject” the claim; (3) give notice the claim is insufficient; 0r, (4) d0 nothing. (See Gov. Code, § 912.6.) The entity has 45 days Within which t0 accept, reject 0r compromise the claim; if it fails to act within that period, the claim is deemed rejected by operation of law. (GOV. Code, § 912.4.) If the public entity sends written notice of the rejection, plaintiff has six months thereafter to file suit against the entity. (Gov. Code, § 945.6(a)(1).) With respect to their Bane Act claim, Plaintiffs’ argument apparently turns 0n Civil Code section 52. 1 (c), Which in relevant part provides that plaintiffs “may institute and prosecute in his or her own name and on his or her own behalf a civil action for damages, including, but not limited to, damages under Section 52.” In turn, Civil Code section 52(f) states that any person “claiming t0 be aggrieved by an alleged unlawful practice in Violation 0f Section 5 1 .7 [the Ralph Act] may also file a verified complaint with the Department of Fair Employment and Housing.” (See CiV. Code, § 5 1 .7 (emphasis added).) But section 52 plainly: (1) says absolutely nothing about the Government Claims Act; (2) does not anywhere provide that Bane Act plaintiffs can simply bypass the Act’s claim presentation requirement by filing a DFEH complaint; and, (3) in fact says absolutely nothing about the Bane Act. The result is the same with Plaintiffs’ Ralph Act claim. While Civil Code section 52(f) allows aggrieved parties to “also file” a DFEH complaint, it does no more than that-it simply permits plaintiffs t0 file DFEH complaints t0 pursue alleged conduct as a FEHA claim3 in addition 3 Government Code section 12948 provides that it is unlawful under FEHA “for a person to deny or t0 aid, incite, or conspire in the denial of the rights created by Section 51, 51.5, 5 1.7, 54, 54.1, 0r 54.2 of the Civil Code.” But that section merely reflects what constitutes a Violation ofFEHA; it does not provide that a separate and independent claim under the Ralph Act-like Plaintiffs’ sixth cause 0f action-is immune from compliance With the Government Claims Act. 7 Defendants’ Memorandum 0f Points and Authorities 20-CV-367465 in Support 0f Demurrer 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 to pursuing a Ralph Act claim. But section 52 and section 5 1 .7 themselves do not excuse Plaintiffs, expressly 0r impliedly, from the claim presentation requirement of the Government Claims Act-or provide that filing a DFEH complaint satisfies 0r displaces that requirement. The sixth and seventh causes of action in the Complaint should be dismissed accordingly. B. THE SEVENTH CAUSE OF ACTION DOES NOT STATE FACTS SUFFICIENT TO STATE A CLAIM UNDER THE BANE ACT. The Bane Act was enacted in 1987 as part of a comprehensive legislative package t0 combat hate crimes. (Cornell v. City & Cnty. ofSan Francisco (2017) 17 Ca1.App.5th 766, 790.) There are two distinct elements for a section 52.1 cause of action. A plaintiff must show: (1) intentional interference or attempted interference With a state or federal constitutional 0r legal right; and (2) the interference 0r attempted interference was by threats, intimidation, 0r coercion. (Allen v. City 0f Sacramento (2015) 234 Ca1.App.4th 41, 67; Civ. Code, § 52.1, subd. (b).) The statute was intended t0 address only egregious interference With civil rights-not just any tort-and the act of interference must itself be deliberate 0r spiteful. (Julian v. Mission Community Hospital (2017) 11 Ca1.App.5th 360, 395.) In Cornell, for example, defendants unlawfully arrested plaintiff, a police cadet, and then, during a siX-hour detention, drew his blood, cuffed him to a bench in front 0f officers who joked that he “bit[] the dust,” and issued a career-ending citation Whose factual basis they could not explain- all evidence they acted “out 0f spite” and “doubled-down” on their initial, mistaken decision to arrest him. (Cornell, supra, 17 Ca1.App.5th at pp. 772-776, 793, 803 (evidence sufficient to support Bane Act claim).) But this does not end the inquiry. T0 prevail 0n a Bane Act claim, the plaintiff must also show that the defendant interfered with 0r attempted to interfere with his or her legal right by threatening 0r committing Violent acts. (Doe v. State ofCalz'fornia (2017) 8 Ca1.App.5th 832, 842; Judicial Council of Cal. Civil Jury Inst, (CACI) 3066 (Bane Act-Essential Factual Elements).) Here, by contrast, Plaintiffs’ allegations largely recite what can only fairly be characterized as garden-variety workplace disputes-e.g., workload complaints, disputes over leave and break requests, lack 0f responsiveness t0 requests for assistance, micromanagement-With a manager who 8 Defendants’ Memorandum 0f Points and Authorities 20-CV-367465 in Support 0f Demurrer 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 allegedly once lost her temper in a meeting, had a “meltdown,” and pointed her finger at one 0f them: Carrillo, who nonetheless continued t0 reproach Christy for her alleged mistreatment of Plaintiffs. Such conduct, even if true, falls far short of the egregious conduct that Plaintiffs must allege t0 state a Bane Act claim. “The statutory framework of section 52.1 indicates that the Legislature meant the statute to address interference with constitutional rights involving more egregious conduct than mere negligence.” (Shoyoye v. County ofLos Angeles (2012) 203 Ca1.App.4th 947, 958.) In Shoyoye, for example, the court found no Bane Act Violation Where the evidence showed County officials were “rude and indifferent” to plaintiff, and even though his experience was “traumatic and frightening.” (Shoyoye, supra, 203 Ca1.App.4th at p. 961.) Indeed, speech is insufficient to establish a threat 0f Violence unless the threat is credible, i.e., it threatens Violence against a specific person 0r persons; and the person or group 0f persons against Whom the threat is directed reasonably fears that, because of it, Violence will be committed against them 0r their property and the person threatening Violence had the apparent ability t0 carry out the threat. (Civ. Code, § 52.1, subd. (k).) But here, Plaintiffs fail to identify any threat of credible Violence by Defendant Christy Who, at most, “became irate,” reached past Vizcarra to point at Carrillo,4 and yelled (unsuccessfully), “Stop talking! I am your supervisor!” and “Don’t say another word, I don’t want to hear this,” before the meeting adjourned. (Compl., W 89, 114.) While Plaintiffs now attempt to sensationalize this alleged fit of anger as a “bizarre meltdown,” the Complaint plainly does not allege a threat of credible Violence actionable under the Bane Act.5 Just as fundamentally, Plaintiffs’ Bane Act claim rests 0n the theory that the County has a policy and practice of interfering with the rights 0f public employees to belong to a union and enj0y the benefits of a collective bargaining agreement. (Compl., 1] 186.) But nowhere in the Complaint 4 Atondo and Brown were not even in the room and Christy is not alleged t0 have said anything offensive t0 Vizcarra. As t0 those Plaintiffs, their Bane Act claim fails 0n that ground alone. 5 And as Shoyoye also teaches, any alleged “threat, intimidation, or coercion” supporting a Bane Act claim must be independent from the alleged constitutional or statutory Violation. (203 Cal.App.4th at pp. 960-961.) Plaintiffs’ Bane Act claim fails on this ground as well, as any alleged “threats, intimidation, or coercion” are part and parcel 0f the FEHA Violations claimed by Plaintiffs. 9 Defendants’ Memorandum 0f Points and Authorities 20-CV-367465 in Support 0f Demurrer 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 do Plaintiffs allege any facts t0 support their notion that Christy’s “meltdown” had anything t0 do With their “position in a labor dispute” (Complaint, 1] 189) that, by their own account, occurred sometime in 0r around 2013. (Compl., W 72-73.) Rather, Plaintiffs’ allegation is that Christy was upset because Plaintiff Carrillo alleged in the meeting that Christy had recorded their meetings-not because of any labor dispute or collective bargaining agreement. (Comp1., 1H 89, 114.) Plaintiffs cannot cobble together a Bane Act claim by stringing together a series 0f workplace events that, by Plaintiffs’ own allegations, do not involve any credible threat of Violence-and none directed at their purported involvement in a labor dispute in 2013. Defendants” Demurrer t0 the seventh cause 0f action should be sustained accordingly. C. THE SIXTH CAUSE OF ACTION DOES NOT STATE FACTS SUFFICIENT TO STATE A CLAIM UNDER THE RALPH ACT. The Ralph Civil Rights Act 0f 1976 (Ralph Act), like the Bane Act, was enacted as a hate crimes statute and guarantees that all persons in California “have the right to be free from any Violence, or intimidation by threat of Violence, committed against their persons 0r property” because 0f political affiliation, position in a labor dispute, or other protected attribute, including sex, race, color, or national origin. (See CiV. Code, § 51.7.) To establish a Ralph Act claim, a plaintiff must establish that: (1) defendant committed or threatened Violent acts against plaintiff; (2) a substantial motivating reason for the Violent acts was plaintiff s sex, race, national origin, or other protected characteristic; (3) plaintiff was harmed; and (4) defendant’s conduct was a substantial factor in causing plaintiff’s harm. (Gabrielle A. v. Cnty. 0f Orange (2017) 10 Ca1.App.5th 1268, 1291; Hernandez v. City ofSan Jose (ND. Cal.) 2016 WL 5944095, *1 1; CACI 3064 (Threats of Violence-Ralph Act-Essential Factual Elements).) Like their Bane Act claim, Plaintiffs’ sixth cause 0f action also fails to allege Violence or a threat 0f Violence by Christy 0r anyone else-let alone one that a reasonable person would believe would be carried out. (See I.H., by & through Hunter v. Oakland Sch. for the Arts (N.D. Cal. 2017) 234 F.Supp.3d 987, 995 (dismissing Ralph Act claim for plaintiff’s failure to allege specific threat of Violence made against her or specific acts of Violence committed upon her); compare Winarto v. Toshiba America Electronics Components, Inc. (9th Cir. 2001) 274 F.3d 1276, 1290 (Ralph Act 1 O Defendants’ Memorandum 0f Points and Authorities 20-CV-367465 in Support 0f Demurrer 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 claim stated where defendant said he was going to hurt plaintiff, tousled plaintiff s hair, grabbed handkerchiefs out 0f her pocket, painfillly kicked her, and caused plaintiff t0 fall down a stairwell, injuring her ankle so severely that she needed surgery).) As such, the Complaint fails t0 allege an essential element of a Ralph Act claim. And as demonstrated above, Plaintiffs simply allege nofacts showing that Christy’s alleged outburst-or any other Violence or threat 0f Violence-was substantially motivated by Plaintiffs’ “position in a labor dispute.” (See Judicial Council of Cal. Civil Jury Inst, CACI 3064 (Threats 0f Violence-Ralph Act-Essential Factual Elements.) Plaintiffs’ mere legal conclusions do not suffice to satisfy their burden in attempting t0 state a cause of action for Violation 0f the Ralph Act. Finally, even assuming Defendant Christy threatened Violence-and she did not, based on the allegations in the Complaint-that threat was only directed at Plaintiff Carrillo. Atondo and Brown were not even in the room during Christy’s alleged outburst. Under the Ralph Act, the actual or intended Violence must be directed against the individual plaintiff. (See Coon v. Joseph (1987) 192 Ca1.App.3d 1269, 1277-1278 (allegation that plaintiff saw his life partner verbally and physically assaulted did not state a Ralph Act claim).) As such, Atondo, Brown, and Vizcarra cannot credibly allege a Ralph Act claim based 0n any threat of Violence alleged in the Complaint. For each of these reasons, the Court should sustain Defendants” Demurrer and dismiss Plaintiffs’ sixth cause of action for Violation of the Ralph Act. D. PLAINTIFF BROWN’S FOURTH CAUSE OF ACTION DOES NOT ALLEGE FACTS SUFFICIENT TO STATE A CLAIM FOR RELIGIOUS HARASSMENT. Brown’s religious harassment claim also fails to state a cause of action. To prevail on a such a claim, Brown must prove that her workplace was permeated With discriminatory intimidation that was sufficiently severe 0r pervasive t0 alter the conditions 0f employment and create an abusive environment. (See Harris v. Forklift Systems, Inc. (1993) 5 10 U.S. 17, 21.) Under the “severe or pervasive” standard, the question is Whether a reasonable person subjected t0 the discriminatory conduct would find that the harassment so altered working conditions as to make it more difficult to do the job. (GOV. Code, § 12923, subd. (21).) Whether the conduct complained of is sufficiently pervasive to create a hostile or offensive 1 1 Defendants’ Memorandum 0f Points and Authorities 20-CV-367465 in Support 0f Demurrer 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 work environment must be determined from the totality 0f the circumstances. (See Fisher v. San Pedro Peninsula Hospital (1989) 214 Ca1.App.3d 590, 609.) Factors considered in evaluating the totality of the circumstances may include the frequency 0f the discriminatory conduct; its severity; whether it is physically threatening or humiliating, 0r a mere offensive utterance; and whether it unreasonably interferes With an employee’s work performance. (McCoy v. Pacific Maritime Assn. (2013) 216 Ca1.App.4th 283, 293.) In determining What is “sufficiently pervasive” harassment, the courts have held that acts of harassment cannot be occasional, isolated, sporadic, or trivial; rather, the plaintiff must show a concerted pattern 0f harassment 0f a repeated, routine, or a generalized nature. (Fisher, supra, 2 14 Cal.App.3d at p. 610.) Evidence t0 support a finding 0f harassment must show that the conduct was both obj ectively and subjectively offensive, meaning that a plaintiffwho subj ectively perceives the workplace as hostile 0r abusive Will not prevail if a reasonable person considering all the circumstances, would not share the same perception. (Kodwavi v. Intercontinental Hotels Group Resources, Inc. (ND. Cal. 2013) 966 F.Supp.2d 971, 987.) Here, Brown alleges that she was harassed based 0n her religion because: (1) she was allegedly directed t0 attend an annual-i.e., 0nce-a-year-workplace Christmas celebration t0 receive “job related announcements” at the party; and, (2) once a year (but not since 2018), Brown’s supervisors rejected her request that they observe the anniversary 0f her wedding or her hire date instead of her birthday,6 leading coworkers one time t0 laugh at her request. (Compl., 1N 53-55, 57, 1 5 5 - 1 56.) Even taken in their entirety, Plaintiff Brown’s allegations 0f religious harassment d0 not pass muster, falling far short of alleging severe or pervasive harassment. (See, e.g., Manatt v. Bank 0f America, NA (9th Cir. 2013) 339 F.3d 792, 798-799 (alleged harassment not severe or pervasive Where, over 30 months, plaintiffwas called a “China woman” multiple times, teased about her pronunciation, co-workers looked at plaintiff and pulled their eyes back With their fingers in an attempt to mock the appearance 0f Asians, her supervisor spoke of “trouble with your countrymen,” 6 Brown does not allege that Defendants forced or in any way compelled her t0 attend “birthday luncheons” for her or anyone else. 12 Defendants’ Memorandum 0f Points and Authorities 20-CV-367465 in Support 0f Demurrer 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 and co-workers joked and commented on several occasions about Chinese people); McCoy, supra, 216 Cal.App.4th at p. 294 (offensive comments not actionable Where they took place between five and nine occasions over four months); Kodwavi, supra, 966 F.Supp.2d at p. 987 (summary judgment for defendant proper where offensive comments made ten times and plaintiff was called a “stupid Pakistani”); Lee v. Eden Medical Center (ND. Cal. 2010) 690 F.Supp.2d 101 1, 1025 (n0 triable issue of fact on hostile work environment Where plaintiff called “garbage” and “stupid Chinese”).) Brown’s only other material allegation is that a coworker named Alex once joked “in the presence ofBrown” that any Jehovah’s Witness Who came to his door to evangelize would hear “my shot gun” While he used his “hates stamper” t0 mimic What someone knocking 0n his door would hear. (Comp1., W 56, 157.) This isolated episode, even considered along with the once-a-year episodes involving Christmas parties and her birthday (but not since 2018), does not rise t0 the level of religious harassment actionable under FEHA. Indeed, in the few reported cases finding issues 0f fact to support religious harassment claims, the plaintiffs alleged facts far more disturbing, frequent, overt, and malicious than Brown does here. (See, e.g., Robles v. Agreserves, Inc. (E.D. Cal. 2016) 158 F.Supp.3d 952, 982-984 (summary judgment denied under FEHA Where Catholic plaintiff s foreman made four comments a day “nearly every day” for 15 days demeaning those of other religions, including, “Your religion is nothing, less than my religion,” “I’m a better person than you guys because your religion is less than [mine],” “You are less than me. Ihave a better job than you guys. I’m a Mormon and you guys are less than me,” and “My religion is on top. We are better than anyone 6156.”); Feingold v. New York (2nd Cir. 2004) 366 F.3d 138, 150-151 (summary judgment improper Where Jewish plaintiff showed evidence of religious animus, including routine anti-Semitic remarks, mocking of his name using other “Jewish-sounding” names, being singled out “almost daily” based on his religion, and overt anti-Semitic animosity); E.E. 0. C. v. Sunbelt Rentals, Inc. (4th Cir. 2008) 521 F.3d 306, 3 14-3 1 8 (summary judgment improper were Muslim plaintiff offered evidence that coworkers and supervisors used religiously-charged epithets, often called him names like “Taliban” and “towel head,” challenged his allegiance t0 the country, suggested he was a terrorist, made comments associating Muslims With senseless Violence, and was the Victim 0f “several religiously charged incidents” comparing him to a suicide bomber).) 1 3 Defendants’ Memorandum 0f Points and Authorities 20-CV-367465 in Support 0f Demurrer 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Brown makes the conclusory allegation that Alex had been instructed by Christy t0 “closely monitor” Brown’s behavior and actions (and those of the three non-Jehovah’s Witness Plaintiffs). (Compl., 1] 157.) But nowhere does Brown allege that Christy directed Alex t0 make-or even knew about-this one-time joke, nor does Brown allege that she ever complained t0 the County about Alex’s joke. (See, e.g., McCoy, supra, 216 Cal.App.4th at p. 294 (offensive comments by non- supervisor not actionable Where there was n0 evidence that plaintiff ever mentioned them, or the topic 0f harassment, to management). Even if she had, none of the acts of harassment Brown alleges rise to the level of a FEHA Violation. (See, e.g., Robles, supra, 158 F.Supp.3d at pp. 982-984 (decided under FEHA); cf. Venters v. City ofDelphz' (7th Cir. 1997) 123 F.3d 956, 973-975 (reversing summary judgment 0n hostile environment claim where supervisor repeatedly subjected plaintiff t0 lectures during work about her prospects for salvation, made highly personal inquiries into her religious life, told her that she led a sinful life, made it clear that she would be discharged if she did not conform t0 supervisor’s religious Views, and described workplace as “God’s house”).) Having failed to state a cause of action for religious harassment under FEHA, Brown’s fourth cause of action should be dismissed Without leave to amend. V. CONCLUSION Defendants’ Demurrer to the sixth and seventh causes of action should be dismissed because Plaintiffs failed t0 comply with the Government Claims Act and they d0 not state claims under the Ralph Act or the Bane Act. And PlaintiffMona Brown’s fourth cause of action should be dismissed because it does not state a cause of action for religious harassment. Dated: August 12, 2020 Respectfully submitted, JAMES R. WILLIAMS County Counsel By: /s/Karl A. Sandoval KARL A. SANDOVAL Lead Deputy County Counsel Attorneys for Defendants COUNTY OF SANTA CLARA and INESSA CHRISTY 2256236 14 Defendants’ Memorandum 0f Points and Authorities 20-CV-367465 in Support 0f Demurrer