Hearing Demurrer

Cal. Super. - 6th Dist.June 4, 2021

SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER Eric Figueroa et al vs City of Palo Alto et aI Hearing Start Time: 9:00 AM 21CV38374O Hearing Type: Hearing: Demurrer Date of Hearing: 03/03/2022 Comments: 3 Heard By: Deen, Shella Location: Department 20 Courtroom Reporter: - No Court Reporter Courtroom Clerk: Hientrang Tranthien Court Interpreter: Court Investigator: Parties Present: Future Hearings: Exhibits: - A|| counsels appear via Court Call unless otherwise noted Ms. Pincin appears for Plaintiff Ms. Solomon appears for Defendant Tentative Ruling Contested by Plaintiff Arguments heard Tentative Ruling Adopted. See below. Court will issue order. |. Statement of Facts. Plaintiffs Eric Figueroa, Michael Foley, Chris Moore, Robert Parham, Julie Tannock, and David Heath Ferreira (collectively, Plaintiffs ) were sworn California police officers employed by defendant Palo Alto Police Department ( PAPD ), assigned to various divisions within PAPD. (Second Amended Complaint ( SAC ), 1 6 and 18.) Beginning in or around June 2020, defendants City of Palo Alto ( City ) and PAPD encouraged, endorsed, and otherwise permitted local efforts to engage in and showcase public art installations, including murals, throughout the City. (SAC, 19.) Specifically, City officials permitted and encouraged artists to create sixteen individual murals on City property that, sideby-side, spelled out Black Lives Matter (hereafter, the Mural ). (|d.) The Mural was approximately 245 feet long and 17 feet tall and located immediately adjacent to PAPD. (SAC, 20.) The Mural featured several images inside each letter, including the portrait of and quote Printed: 3/3/2022 03/03/2022 Hearing: Demurrer - 21CV383740 Page 1 of 11 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER by Joanne Chesimard ( Chesimard ) within the letter E of the word Matter. (|d.) The iconography at issue is an image of Chesimard, better known as Assata Shakur ( Shakur ), who was convicted in 1977 for the murder of New Jersey State Trooper Wermer Foerster, a white police officer. (SAC, 21.) In 1979, while serving a life sentence for the murder, Shakur escaped from prison and ended up in Cuba where she now has refuge and the Cuban government refuses to extradite her. (|d.) The FBI placed Shakur on its top ten list of most wanted domestic terrorists. (|d.) Further, the Mural included a portion of the logo attributed to the New Black Panthers, identified by the Southern Poverty Law Center ( SPLC ) as a hate group. (SAC, 22.) The SPLC defines the New Black Panthers as a virulently racist and anti-Semitic organization whose leaders have encouraged violence against whites, Jews, and law enforcement officers. (|d.) Plaintiffs were forced to physically pass and confront the Mural and its offensive, discriminatory, and harassing iconography every time they entered the PAPD. (SAC, 23.) Plaintiffs reported to defendants City and PAPD and supervisors that the Mural and its accompanying iconography are racially discriminatory and harassing. (SAC, 24.) Additionally, Plaintiffs complaints were brought to defendants attention by Plaintiffs Police Officer s Association in two separate warnings. (|d.) Defendants created and allowed the aforementioned discriminatory and harassing work environment to exist. (SAC, 25.) Not only did defendants allow the harassing and discriminatory iconography to exist in the workplace, but defendants also sanctioned, approved, encouraged, and paid for it. (|d.) The Mural s existence and PAPD s failure to remove the harassing and discriminatory iconography despite Plaintiffs complaints adversely and materially affected Plaintiffs job performance. (|d.) Defendant City was aware that maintaining and failing to remove the Mural would adversely affect and did affect Plaintiffs ability to perform their duties. (|d.) Ignoring and refusing to address Plaintiffs complaints caused Plaintiffs substantial psychological harm and detrimentally changed the terms and conditions of their employment with defendant PAPD. (|d.) On 4 June 20217 , Plaintiffs filed a complaint against defendants City and PAPD. On 16 July 2021, Plaintiffs filed a first amended complaint ( FAC ). Pursuant to a stipulation and order filed 19 October 2021, the court authorized Plaintiffs to file an SAC. Plaintiffs filed the operative SAC on 22 October 2021 which asserts causes of action for: Printed: 3/3/2022 03/03/2022 Hearing: Demurrer - 21CV383740 Page 2 of 11 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER (1) Discrimination in Violation of FEHA (2) Harassment in Violation of FEHA (3) Retaliation in Violation of FEHA On 23 November 2021, defendant City (also erroneously named as PAPD which is not a separate legal entity) filed the motion now before the court, a demurrer to Plaintiffs SAC. ||. Analysis. A. Defendant City s demurrer to the first cause of action [discrimination in violation of FEHA] of Plaintiffs SAC is SUSTAINED. It is an unlawful employment practice, unless based upon a bona fide occupational qualification, or, except where based upon applicable security regulations established by the United States or the State of California For an employer, because of the race [or] color [or] national origin to discriminate against the person in compensation or in terms, conditions, or privileges of employment. (Gov. Code, 12940, subd. (a).) The specific elements of a prima facie case [for discrimination] may vary depending on the particular facts. [Citations.] Generally, the plaintiff must provide evidence that (1) he was a member of a protected class, (2) he was qualified for the position he sought or was performing competently in the position he held, (3) he suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some other circumstance suggests discriminatory motive. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 355.) In demurring to the first cause of action, defendant City argues, initially, that Plaintiffs have not alleged that they suffered an adverse employment action. Instead, Plaintiffs base their discrimination claim on defendant City s refusing to eliminate the harassing and discriminatory conduct, and failing or refusing to investigate Plaintiffs complaints. [Name of plaintiff] must prove that [he/she/nonbinary pronoun] was subjected to an adverse employment action. Adverse employment actions are not limited to ultimate actions such as termination or demotion. There is an adverse employment action if [name of defendant] has taken an action or engaged in a course or pattern of conduct that, taken as a whole, materially and adversely affected the terms, conditions, or privileges of [name of plaintiff] s employment. An adverse employment action 7 This Department intends to comply with the time requirements of the Trial Court Delay Reduction Act Printed: 3/3/2022 03/03/2022 Hearing: Demurrer - 21CV383740 Page 3 of 11 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER (Government Code, 68600 68620). The California Rules of Court state that the goal of each trial court should be to manage limited and unlimited civil cases from filing so that 100 percent are disposed of within 24 months. (Ca. St. Civil Rules of Court, Rule 3.714(b)(1)(C) and (b)(2)(C) includes conduct that is reasonably likely to impair a reasonable employee s job performance or prospects for advancement or promotion. However, minor or trivial actions or conduct that is not reasonably likely to do more than anger or upset an employee cannot constitute an adverse employment action. (CACI, No. 2509.) In California, an employee seeking recovery on a theory of unlawful discrimination or retaliation must demonstrate that he or she has been subjected to an adverse employment action that materially affects the terms, conditions, or privileges of employment, rather than simply that the employee has been subjected to an adverse action or treatment that reasonably would deter an employee from engaging in the protected activity. [Citation.] A change that is merely contrary to the employee's interests or not to the employee's liking is insufficient. [Citation.] [W]orkplaces are rarely idyllic retreats, and the mere fact that an employee is displeased by an employer's act or omission does not elevate that act or omission to the level of a materially adverse employment action. [Citation.] If every minor change in working conditions or trivial action were a materially adverse action then any action that an irritable, chip-on-theshoulder employee did not like would form the basis of a discrimination suit. [Citation.] [Citation.] The plaintiff must show the employer's retaliatory actions had a detrimental and substantial effect on the plaintiff's employment. [Citations.] [Footnote.] (McRae v. Department of Corrections & Rehabilitation (2006) 142 Cal.App.4th 377, 386 387.) The court understands defendant City s position to be that, in making a claim for discrimination, Plaintiffs have not alleged any action on defendant City s part and instead allege defendant City s inaction. Although the SAC alleges defendant City created and allowed to exist the aforementioned discriminatory and harassing work environment, more specific earlier allegations are that artists created the Mural. (SAC, 19 and 25.)8 Thus the alleged discriminatory iconography was not itself an act by defendant City, but an act taken by others. Instead, the allegations of the SAC more accurately assert defendant City s inaction Printed: 3/3/2022 03/03/2022 Hearing: Demurrer - 21CV383740 Page 4 of 11 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER Defendants failed to disapprove of and enjoin the underlying harassing and discriminatory conduct; Failure to abate the harassing and discriminatory conduct; Department s failure to remove the racially harassing and discriminatory iconography; failing to remove the Mural ; ignoring and refusing to address Plaintiffs reports of discrimination . (SAC, 25.) In opposition, Plaintiffs confirm the discrimination is based on City s repeated refusal to remove the hateful and discriminatory iconography; City did nothing to alleviate Plaintiffs concerns or even investigate Plaintiffs complaints; Defendant s failure to remove it after Plaintiffs reported the harassing and discriminatory iconography. (See page 8, lines 6 13 of Plaintiffs Opposition to Defendant s Demurrer to Plaintiffs Second Amended Complaint.) 8 More specifically, paragraph 19 of the SAC alleges, in relevant part, defendant City encouraged, endorsed, and otherwise permitted local efforts to engage in and showcase public art installations, including murals, throughout the City. Specifically, City officials permitted and encouraged artists to create sixteen individual murals on City property that, side-by-side, spelled out Black Lives Matter. Even so, the court does not find this to be an employment action. Cities perform many functions and take official action separate and apart from actions taken as an employer of police personnel. Paragraph 19 alleges such non-employment action which, as aHeged, was intended to showcase public art on City property. There are no allegations that the City s permission for the Mural or its iconography was directed at Police personnel, let alone Plaintiffs. Thus, despite being entitled a claim for discrimination, Plaintiffs claim sounds more like a claim for failure to prevent discrimination. Under FEHA, an employer has an obligation to take all reasonable steps necessary to prevent discrimination and harassment from occurring. (See Gov. Code 12940, subd. (k).) However, a necessary prerequisite to a finding of liability for the failure to take all reasonable steps, however, is a finding that the plaintiff actually suffered unlawful discrimination, harassment, or retaliation. (See Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th 280, 282 283; see also Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1021.) The court finds persuasive defendant City s argument that Plaintiffs have not adequately alleged any adverse employment action taken against them by defendant City to support a claim for discrimination. Defendant City demurs additionally on the ground that Plaintiffs have not alleged any circumstances which would suggest a discriminatory motive. In a disparate treatment case, Printed: 3/3/2022 03/03/2022 Hearing: Demurrer - 21CV383740 Page 5 of 11 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER liability depends on whether the protected trait actually motivated the employer's decision. Whatever the employer's decisionmaking process, a disparate treatment claim cannot succeed unless the employee's protected trait actually played a role in that process and had a determinative influence on the outcome. (Hazen Paper Co. v. Biggins (1993) 507 U.S. 604, 610.) Apart from conclusory allegations, the court agrees with defendant City that Plaintiffs have not alleged any facts from which this court can infer some discriminatory motive. As noted above, Plaintiffs allege City permitted artist to create the Mural for the public, i.e., everyone. There is nothing to suggest that the Mural and its iconography was created in favor of one (protected) group over another. Similarly, Plaintiffs do not provide any factual allegations which would suggest defendant City s refusal to address Plaintiffs complaints about the Mural are based on Plaintiffs race, ethnicity, or some other protected classification. Accordingly, defendant City s demurrer to the first cause of action of Plaintiffs SAC on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code Civ. Proc., 430.10, subd. (e)] is SUSTAINED with 10 days leave to amend. B. Defendant City s demurrer to the second cause of action [harassment in violation of FEHA] of Plaintiffs SAC is SUSTAINED. It is an unlawful employment practice, unless based upon a bona fide occupational qualification, or, except where based upon applicable security regulations established by the United States or the State of California: For an employer or any other person, because of race [or] color [or] national origin to harass an employee . Harassment of an employee shall be unlawful if the entity, or its agents or supervisors, knows or should have known of this conduct and fails to take immediate and appropriate corrective action. An employer may also be responsible for the acts of nonemployees, with respect to harassment of employees in the workplace, if the employer, or its agents or supervisors, knows or should have known of the conduct and fails to take immediate and appropriate corrective action. In reviewing cases involving the acts of nonemployees, the extent of the employer s control and any other legal responsibility that the employer may have with respect to the conduct of those nonemployees shall be considered. An entity shall take all reasonable steps to prevent harassment from occurring. Loss of tangible job benefits shall not be necessary in order to establish harassment. (Gov. Code, 12940, subd. (j)(1); emphasis added.) [H]arassment consists of conduct outside the scope of necessary job performance, Printed: 3/3/2022 03/03/2022 Hearing: Demurrer - 21CV383740 Page 6 of 11 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER conduct presumably engaged in for personal gratification, because of meanness or bigotry, or for other personal motives. (Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 63.) [H]arassment focuses on situations in which the social environment of the workplace becomes intolerable because the harassment (whether verbal, physical, or visual) communicates an offensive message to the harassed employee. (Roby v. McKesson Corp. (2009) 47 Ca|.4th 686, 706.) Harassment includes but is not limited to Visual forms of harassment, e.g., derogatory posters, cartoons, or drawings on a basis enumerated in the Act. (Cal. Code Regs., tit. 2, 11019; emphasis added; see also CACI, No. 2523.) To establish a prima facie case of a hostile work environment, Ortiz must show that (1) she is a member of a protected class; (2) she was subjected to unwelcome harassment; (3) the harassment was based on her protected status; (4) the harassment unreasonably interfered with her work performance by creating an intimidating, hostile, or offensive work environment; and (5) defendants are liable for the harassment. (Ortiz v. Dameron Hospital Assn. (2019) 37 Cal.App.5th 568, 581; emphasis added; see also CACI, No. 2521A.) Plaintiffs allege they found two ofthe visual images depicted in the Mural to be offensive and intolerable: (a) Shakur, a person convicted of the murder of a white police officer; and (2) the logo of the New Black Panthers, a racist and anti-Semitic organization whose leaders have encouraged violence against whites, Jews, and law enforcement officers. (SAC, 21 22.) Defendant City demurs by arguing, initially, that the alleged harassment is not based on a protected class such as race or national origin. Instead, defendant City suggests Plaintiffs find the visual imagery here to be offensive because they represent people or groups who target police officers and Plaintiffs are all police officers. In the SAC, Plaintiffs allege they are in a protected class of persons based on race, ethnicity, and/or national origin, yet Plaintiffs do not all belong to the same protected class. (SAC, 1 6.) For instance, plaintiffs Michael Foley, Chris Moore, and Julie Tannock identify as Caucasian. (SAC, 2, 3, and 5.) Plaintiff Eric Figueroa identifies as Filipino and Caucasian. (SAC, 1.) Plaintiff David Ferreira identifies as Caucasian and Pacific Islander/Asian. (SAC, 6.) Plaintiff Robert Parham identifies as Hispanic. (SAC, 4.) Defendant City suggests the only thing common to all the Plaintiffs is that they are all police officers, but being a police officer is not a protected class. In opposition, Plaintiffs appear to reframe or enhance their allegations concerning the purportedly offensive images. Plaintiffs, in their opposition, further explain that Shakur was a Printed: 3/3/2022 03/03/2022 Hearing: Demurrer - 21CV383740 Page 7 of 11 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER member of the Black Liberation Army, a group suspected of involvement in dozens of acts of violence in the 19705, and that the New Black Panther party targets not just whites, Jews, and law enforcement officers as alleged in the SAC (see 22), but that the New Black Panthers are a hate group targeting a|| non-African Americans which includes all of the Plaintiffs. Had Plaintiffs made such an allegation, the court might be inclined to agree that the imagery (at least in part) is visually offensive to a protected class (non-African Americans) which all Plaintiffs are a part of. However, these same allegations are found in the opposition, but not in the SAC. Accordingly, defendant City s demurrer to the second cause of action of Plaintiffs SAC on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code Civ. Proc., 430.10, subd. (e)] is SUSTAINED with 10 days leave to amend. To be complete, the court will also address defendant City s alternative argument which is apparently that the alleged harassment is not sufficiently severe or pervasive as a matter of law. We have agreed with the United States Supreme Court that, to prevail, an employee claiming harassment based upon a hostile work environment must demonstrate that the conduct complained of was severe enough or sufficiently pervasive to alter the conditions of employment and create a work environment that qualifies as hostile or abusive to employees because of their sex. (See Aguilar v. Avis Rent A Car System, |nc., supra, 21 Ca|.4th at p. 130, relying upon Harris v. Forklift Systems, Inc. (1993) 510 U.S. 17, 21 [126 L. Ed. 2d 295, 114 S. Ct. 367].) The working environment must be evaluated in light ofthe totality of the circumstances: [W]hether an environment is hostile or abusive can be determined only by looking at all the circumstances. These may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance. (Harris v. Forklift Systems, |nc., supra, 510 U.S. at p. 23.) The United States Supreme Court has warned that the evidence in a hostile environment [] harassment case should not be viewed too narrowly: [T]he objective severity of harassment should be judged from the perspective of a reasonable person in the plaintiff's position, considering all the circumstances. [Citation.] . [T]hat inquiry requires careful consideration of the social context in which particular behavior occurs and is experienced by its target. The real Printed: 3/3/2022 03/03/2022 Hearing: Demurrer - 21CV383740 Page 8 of 11 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER social impact of workplace behavior often depends on a constellation of surrounding circumstances, expectations, and relationships which are not fully captured by a simple recitation of the words used or the physical acts performed. Common sense, and an appropriate sensibility to social context, will enable courts and juries to distinguish between simple teasing or roughhousing and conduct which a reasonable person in the plaintiff's position would find severely hostile or abusive. (Oncale v. Sundowner Offshore Services, Inc. (1998) 523 U.S. 75, 81 82 [140 L. Ed. 2d 201, 118 S. Ct. 998]; see also Beyda v. City of Los Angeles (1998) 65 Cal.App.4th 511, 517 518 [76 Cal. Rptr. 2d 547].) (Miller v. Department of Corrections (2005) 36 Ca|.4th 446, 462; see also CACI, No. 2524.) Under the right circumstances, the court can make this determination as a matter of law. (See Hagberg v. California Institute ofthe Arts (2002) 101 Cal.App.4th 142, 150.) In determining whether the harassment is sufficiently severe or pervasive to create a hostile work environment, "the conduct in question must be judged by both an objective and a subjective standard." Abeita v. TransAmerica Mailings, |nc., 159 F.3d 246, 251 (6th Cir. 1998) (quoting Black v. Zaring Homes, |nc., 104 F.3d 822, 826 (6th Cir. 1997)). This means that "[t]he conduct must be severe or pervasive enough to create an environment that a reasonable person would find hostile or abusive, and the victim must subjectively regard that environment as abusive." Id. (quoting Black, 104 F.3d at 826). (Johnson v. Ford Motor Co. (6th Cir. Sep. 2, 2021, No. 20-2032) 2021 U.S. App. LEXIS 26529, at *24-25.) Defendant City focuses on the Mural as a whole and its primary message that Black Lives Matter, to argue that such a message is not objectively offensive to a reasonable person. Defendant City incorrectly focuses on the Mural as a whole, but it is not the Mural or its overall message that is alleged to be offensive. Even if defendant City had focused on the alleged offensive material, defendant City does not persuasively argue nor does defendant City provide analogous legal authority that the alleged harassing material here is not sufficiently severe or pervasive as a matter of law. C. Defendant City s demurrer to the third cause of action [retaliation in violation of FEHA] of Plaintiffs SAC is SUSTAINED. [|]n order to establish a prima facie case of retaliation under the FEHA, a plaintiff must show (1) he or she engaged in a protected activity, (2) the Printed: 3/3/2022 03/03/2022 Hearing: Demurrer - 21CV383740 Page 9 of 11 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer's action. (lwekaogwu v. City of Los Angeles (1999) 75 Cal. App. 4th 803, 814 815 [89 Cal. Rptr. 2d 505]; Flait v. North American Watch Corp. (1992) 3 Cal. App. 4th 467, 476 [4 Cal. Rptr. 2d 522] [adopting the title V|| (Civil Rights Act of 1964, 42 U.S.C. 2000e et seq.) burden-shifting analysis of McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 802 805 [36 L. Ed. 2d 668, 93 S. Ct. 1817]].) (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Ca|.4th 1028, 1042; see also CACI, No. 2505.) Just as with the first cause of action, defendant City demurs to the third cause of action for retaliation by arguing that Plaintiffs have not adequately alleged defendant City subjected Plaintiffs to an adverse employment action or that there is some causal link between the protected activity and the employer s action (retaliatory motive). For the same reason discussed above, the court finds this argument persuasive. Accordingly, defendant City s demurrer to the third cause of action of Plaintiffs SAC on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code Civ. Proc., 430.10, subd. (e)] is SUSTAINED with 10 days leave to amend. |||. Order. Defendant City s demurrer to Plaintiffs SAC on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code Civ. Proc., 430.10, subd. (e)] is SUSTAINED with 10 days leave to amend. 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