Kirsten Yonan vs. California Department of Parks And RecreationDemurrer to Amended ComplaintCal. Super. - 4th Dist.March 17, 2016c o 3 a n n B A W N \ O 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 KAMALA D, HARRIS NO FEE PER GOV, CODE § 6103 Attorney General of California : GARY S. BALEKJIAN Supervising Deputy Attorney General JASMINE K. BATH Deputy Attorney General State Bar No. 225040 300 South Spring Street, Suite 1702 Los Angeles, CA 90013 Telephone: (213) 897-0996 Fax: (213) 897-1071 E-mail: Jasmine.Bath@doj.ca.gov Attorneysfor Defendants California Department of * Parks and Recreation, Mark Allen, and Chris Lee SUPERIORCOURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE KIRSTEN YONAN, an individual, Case No. 30-2016-00841378-CU-OE-CJC Plaintiff, Demurring Party: Defendant California Department ofParks Vv. and Recreation Responding Party: CALIFORNIA DEPARTMENT OF Kirsten Yonan PARKS AND RECREATION; MARK ALLEN; CHRIS LEE; and DOES 1 through DEFENDANT CALIFORNIA 50, inclusive, DEPARTMENT OF PARKS AND RECREATION’S NOTICE OF Defendants. { DEMURRER AND DEMURRER TO FIRST AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF JASMINE K. BATH Reservation No. 72392360 [Filed concurrently with: 1. Defendants’ California Department of Parks and Recreation, Allen, and Lee’s Motion to Strike; 2. Defendants Mark Allen and Chris Lee’s Notice ofDemurrer and Demurrer.] Date: September 13, 2016Time: - 2:00 p.m.Dept: C13Judge: Honorable John C. Gastelum Defendant California Department of Parks and Recreation’s Demurrer to First Amended Complaint; Memorandumof Points and Authorities; Declaration of Jasmine K. Bath (30-20 16-00841378-CU-OE-CIC) O O 0 ~ 1 O N u h = L N N O N N N N N N N m m m e m e m e d e e e h a p d c o ~~ ] O N n n B R W N = D O e O N n n R E W w N D = O TO PLAINTIFF AND HER ATTORNEYS OF RECORD: PLEASE TAKE NOTICE THAT on September 13, 2016,at 2:00 p.m., or as soon thereafter as counsel may be heard, in Department C13 of the above-entitled court, Defendant California Department of Parks and Recreation, will, under Code of Civil Procedure section 430.10, demur to Plaintiff Kirsten Yonan’s First Amended Complaint (“FAC”) on the grounds set forth in the Demurrer and accompanying Memorandum of Points and Authorities. The Demurrer is based upon this Notice, the attached Memorandum of Points and Authorities, the pleadings, records on file in this lawsuit, and such other evidence as may be presented at the hearing on this Demurrer. Dated: June 15, 2016 Respectfully Submitted, KAMALA D. HARRIS Attorney General of California GARY S. BALEKJIAN Supervising Deputy Attorney General JASMINE K. BATH Deputy Attorney General Attorneysfor Defendants California DepartmentofParks and Recreation, Mark Allen, and Chris Lee 2 Defendant California Department of Parks and Recreation’s Demurrer to First Amended Complaint; Memorandumof Points and Authorities; Declaration of Jasmine K. Bath (30-2016-00841378-CU-OE-CJC) E N O w 0 ~ 1 o N w n 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEMURRER Defendant California Department of Parks and Recreation (“DP&R”) demurs to Plaintiff’s First Amended Complaint (“FAC”) on the following grounds: DEMURRER TO THE SECOND CAUSE OF ACTION Discrimination Based on Disability The Fair Employment and Housing Act (“FEHA™) Plaintiff fails to state a cause action against Defendant DP&R for disability discrimination under the FEHA because she has not plead an actionable “disability” under the FEHA or alleged whether she could perform the essential functions of a lifeguard with or without an accommodation. {Code Civ. Proc., § 430.10, subd. (e.); Faust v. Cal. Portland Cement Co. (2007) 150 Cal.App.4th 864, 886.) DEMURRER TO THE THIRD CAUSE OF ACTION Failure to Accommodate (“FEHA”) Plaintiff fails to state a cause action against Defendant DP&R for failure to accommodate under the FEHA because she has not plead an actionable “disability” under the FEHA or alleged whether she could perform the essential functions of a lifeguard with or without an accommodation. (Code Civ. Proc., § 430.10, subd. (e.); Scotch v. The Art Institute ofCalifornia- Orange County, Inc. (2009) 173 Cal.App.4th 986.) DEMURRER TO THE FOURTH CAUSE OF ACTION Hostile Work Environment (Harassment) Based on Sex (“FEHA”) Plaintiff fails to state a cause of action against Defendant DP&R for hostile work environment (harassment) based on sex because she has not alleged sufficient facts to establish she was subjected to sexual harassment. (Code Civ. Proc., § 430.10, subd. (e); Fisher v. San Pedro Peninsula Hosp. (1989) 214 Cal.App.3d 590, 609; Janken v. GMHughes Electronics (1996) 46 Cal.App.4th 55, 63.) / 1 1 3 Defendant California Department of Parks and Recreation’s Demurrer to First Amended Complaint; Memorandumof Points and Authorities; Declaration of Jasmine K. Bath (30-2016-00841378-CU-OE-CIC) N o o O 0 ~ N S N w n R A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 WHEREFORE, Defendant California Department of Parks and Recreation prays that its Demurrer be sustained and that this Court provide such other and further relief as the Court may deem proper. Dated: June 15, 2016 Respectfully Submitted, KAMALA D. HARRIS Attorney General of California GARY S. BALEKJIAN Supervising Deputy Attorney General JASMINE K. BATH Deputy Attorney General Attorneysfor Defendants California Department ofParks and Recreation, Mark Allen, and Chris Lee 4 Defendant California Department of Parks and Recreation’s Demurrer to First Amended Complaint; Memorandumof Points and Authorities; Declaration of Jasmine K. Bath (30-2016-00841378-CU-OE-CIC) W w o o 0 3 A 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION AND PROCEDURAL HISTORY On March 17, 2016, Plaintiff Kirsten Yonan initiated this lawsuit by filing a Complaint alleging that the termination of her employment was the culmination of unlawful employment practices. After the parties met and conferred regarding the Complaint, Plaintiff filed a First Amended Complaint (“FAC”) on May 11, 2016 alleging the following six causes of action under the Fair Employment and Housing Act (“FEHA”): (1) discrimination based on sex/gender (2) discrimination based on disability; (3) failure to accommodate; (4) sexual harassment; (5) failure to prevent harassment, discrimination, retaliation, and (6) retaliation, The FAC named the California Department of Parks and Recreation (“DP&R”), Mark Allen, and Chris Lee as Defendants. Allen and Lee are only named in the harassment cause of action. Plaintiffis requesting punitive damages against all Defendants. II. FACTUAL SUMMARY From June 2013 to September 2015, Plaintiff was employed as a Seasonal Lifeguard I with the DP&R. (FAC, {1 13, 36.) On June 24, 2015, Plaintiff alleges that while working at San Clemente State Beach Tower 5, she was the victim of a sexual battery by one or two male beach patrons (“Tower 5 incident”). (FAC, §15.) Immediately thereafter, Plaintiff reported the Tower 5 incident to dispatch and requested assistance. (FAC, 16.) That same date, Defendant, Chris Lee, Seasonal Lifeguard II, allegedly harassed Plaintiff by asking her, “How was the ass-grab on Tower 5 today?” (FAC, 418.) Later that same day, Defendant, Mark Allen, Chief Lifeguard, spoke to Plaintiff regarding the Tower 5 incident and allegedly told her that there “was not much he could do” about the sexual battery “because they’re minors,” and noted that Plaintiff “was not wearing a lot of clothing” so she should be more aware of her surroundings. (FAC, 419.) Allen also allegedly stated, “boys will be boys.” (Ibid.) The following day, Allen allegedly asked Plaintiff if she had ever dated Lee. (FAC, 922.) On June 29, 2015, Plaintiff alleges that Joel Yamasaki, Permanent Lifeguard Supervisor, provided Plaintiff with EEO complaint paperwork, and made cryptic statements to her regarding “how hungry she was.” (FAC, 24.) 5 Defendant California Department of Parks and Recreation’s Demurrerto First Amended Complaint; Memorandumof Points and Authorities; Declaration of Jasmine K. Bath (30-2016-00841378-CU-QE-CJC) On July 2, 2015, Plaintiff initiated a formal EEO complaint against Allen, (FAC, 925.) On July 3, Allen allegedly apologized to Plaintiff. On August 14, Plaintiff sustained a work injury to her left hand and provided Plaintiff with an accommodation by allowing her to work dispatch until August 18. (FAC, 928-30.) On August 18, William Pfeiffer, Permanent Lifeguard, allegedly told Plaintiff to leave the dispatch tower and clean the shop. (FAC, 31.) Plaintiff went home that day and worked without incident until the date of her termination on September 15. (FAC, 35.) ARGUMENT I. THE FAC FAILS TO STATE A CAUSE OF ACTION FOR DISABILITY DISCRIMINATION AGAINST DEFENDANT CALIFORNIA DEPARTMENT OF PARKS AND RECREATION Plaintiff cannot plead a disability discrimination claim against the DP&R. Toprove a cause of action for disability discrimination, one must establish (1) that plaintiff has a disability or medical condition or was regarded as suffering from a disability; (2) plaintiff could perform the essential duties of the job with or without a reasonable accommodation; (3) the defendant took adverse employment action against plaintiff; and (4) plaintiffs actual or perceived disability or medical condition was a substantial motivating factor for the adverse employment action. (Faust v. Cal. Portland Cement Co. (2007) 150 Cal.App.4th 864, 886.) Under California Government Code section 12926, subdivision (m), a qualifying physical disability is defined as: “(1) Having any physiological disease, disorder, condition, cosmetic disfigurement, or anatomical loss that does both of the following: (A) Affects one or more of the following body systems: neurological, immunological, musculoskeletal, special sense organs, respiratory, including speech organs, cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin, and endocrine. (B) Limits a major life activity.” To determine whether a disability substantially limits a majorlife activity, for purposes of a claim under state or federal disability discrimination in employment law, the court must examine the effect of the alleged impairment on the life in question; generally, a condition will not qualify as a “disability” unless the alleged impairments substantially limit the ability of the plaintiff to 6 Defendant California Department of Parks and Recreation’s Demurrer to First Amended Complaint; Memorandumof Points and Authorities; Declaration of Jasmine K. Bath (30-2016-00841378-CU-OE-CIC) c o 1 O N n n B x W N \ O 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 perform majorlife activities which includes such functions as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, learning and working. (Hobson v. Raychem Corp. (1999) 73 Cal. App.4th 614, 626.) When claiming physical disability discrimination under the Fair Employment and Housing Act (FEHA),it is not enough merely to allege a physical disability; the touchstone of a qualifying physical disability is an actual or perceived physiological disorder which affects a major body system and limits the individual's ability to participate in one or more majorlife activities. (Rope v. Auto-Chlor System of Washington, Inc. (2013) 220 Cal.App.4th 635, 659.) Plaintiff fails to allege sufficient facts establishing that a sprained hand and a temporary work restriction is an actionable “disability” under the FEHA. (See Gov. Code § 12926, subdivision (m).) Plaintiff alleges that her left hand injury prevented her from a majorlife activity, specifically, her lifeguard job. (FAC, § 49.) This is insufficient to establish that Plaintiff had an actionable disability under the FEHA. Plaintiff's left hand injury did not prevent herfrom working as she did in fact work from August 15 to August 18, 2015. (FAC, § 928-31.) Followingthe alleged August 18 verbal altercation with William Pfeiffer, Permanent Lifeguard, Plaintiff worked as a lifeguard until the date of her termination on September 15, 2015. (FAC, 931, 36.) Accordingly, Plaintiff’s “disability” was only temporary and she resumed her duties as a lifeguard. Furthermore, Plaintiff fails to allege whether she could perform the essential functions ofa lifeguard, with or without an accommodation. Accordingly, Plaintiff cannot plead a disability discrimination cause of action against DP&R. II. THE FAC FAILS TO STATE A CAUSE OF ACTION FOR FAILURE TO ACCOMMODATE AGAINST DEFENDANT CALIFORNIA DEPARTMENT OF PARKS AND RECREATION Plaintiff fails to plead an actionable “disability” under the FEHA in support of her failure to accommodate cause of action against the DP&R. In orderto establish a failure to accommodate claim, Plaintiff is required to show: (1) the plaintiff has a disability under the FEHA, (2) the plaintiff is qualified to perform the essential functions ofthe position, and (3) the employerfailed to reasonably accommodate the plaintiff's disability. (Scotch v. The Art Institute ofCalifornia- Orange County, Inc. (2009) 173 Cal.App.4th 986, 1009-1010.) 7 Defendant California Department of Parks and Recreation’s Demurrer to First Amended Complaint; Memorandumof Points and Authorities; Declaration of Jasmine XK. Bath (30-2016-00841378-CU-OE-CJC) n O o O 0 ~ ~ O N t n B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Here, Plaintiff fails to plead an actionable “disability” under the FEHA as discussed in Section I. Additionally, Plaintiff fails to plead whether she was qualified to perform the essential functions ofthe lifeguard position. Accordingly, Plaintiff cannot plead a failure to accommodate cause of action against the DP&R. III, THE FAC FAILS TO STATE A CAUSE OF ACTION FOR HOSTILE WORK ENVIRONMENT (HARASSMENT) BASED ON SEX AGAINST DEFENDANT CALIFORNIA DEPARTMENT OF PARKS AND RECREATION Plaintiff was not subjected to a hostile work environment because of her sex and therefore, her hostile work environment (harassment) cause of action is deficient. The elements of a cause of action for harassment based on sex are: (1) plaintiff belongs to a protected group; (2) plaintiff was subject to unwelcome sexual harassment; (3) the harassment complained of was based on sex; (4) the harassment complained of was sufficiently severe or pervasive so as to alter the conditions of employment and create an abusive working environment; and (5) respondeat superior. (Fisher v. San Pedro Peninsula Hosp. (1989) 214 Cal.App.3d 590, 608.) Whether the alleged harassment is sufficiently severe or pervasive of a plaintiff’s work environment must be determined from the totality of the circumstances. The factors to consider in evaluating the totality of the circumstances are: “(1) the nature of the unwelcome sexual acts or words (generally, physical touching is more offensive than unwelcome verbal abuse); (2) the frequency ofthe offensive encounters; (3) the total number of days over which all of the offensive conduct occurs; and (4) the context in which the sexually harassing conduct occurred. (/d. at p. 590.) To be deemed pervasive, courts have held that “an employee generally cannot recover for harassment that is occasional, sporadic, or trivial; rather, the employee must show a concerted pattern of harassment of repeated, routine, or a generalized nature.” (Lyle v. Warner Bros. Television Prod. (2006) 38 Cal.4th 264, 283.) Although even a single incident of severe harassment may be sufficient to establish an employer's liability under the FEHA for sexual harassment, such a single incident must be severe in the extreme and generally must include either physical violence or the threat thereof. (Herberg v. California Institute ofthe Arts (2002) 101 Cal.App.4"™ 142, 150.) 8 Defendant California Department of Parks and Recreation’s Demurrer to First Amended Complaint; Memorandumof Points and Authorities; Declaration of Jasmine K. Bath (30-2016-00841378-CU-OE-CJC) B w N D o o 0 N N Wi n 10 1 12 13 14 15 16 17 18 19 20 21 2 23 24 25 26 27 28 Plaintiff’s FAC has not alleged that any DP&R employee engaged in conduct that constitutes harassment under the law. The FAC does not allege any unwelcome sexual advances, physical touching, or sufficiently severe conductthat altered the conditions of employment or created an abusive working environment. Nor does Plaintiff allege sufficiently pervasive conduct. On June 24, 2015, Plaintiff alleges that while working at San Clemente State Beach Tower 5, she was the victim of a sexual battery by one or two male beach patrons (“Tower 5 incident”), (FAC, §15.) Immediately thereafter, Plaintiff reported the Tower 5 incident to dispatch and requested assistance. (FAC, 16.) That same date, Defendant, Chris Lee, Seasonal Lifeguard II, allegedly harassed Plaintiff by asking her, “How was the ass-grab on Tower 5 today?” (FAC, 918.) Later that same day, Defendant, Mark Allen, Chief Lifeguard, spoke to Plaintiff regarding the Tower 5 incident and allegedly told her that there “was not muchhe could do” about the sexual battery “because they’re minors,” and noted that Plaintiff “was not wearing a lot of clothing” so she should be more aware of her surroundings. (FAC, 919.) Allen also allegedly stated, “boys will be boys.” The following day, Allen allegedly asked Plaintiffif she had ever dated Lee. (FAC, 922.) On June 29, 2015, Plaintiff alleges that Joel Yamasaki, Permanent Lifeguard Supervisor, provided Plaintiff with EEO complaint paperwork, and made cryptic statements to her regarding “how hungry she was.” (FAC,924.) On July 3, 2015, Allen allegedly apologized to her. (FAC, 426.) From August 14 to 18, Plaintiff sustained a work injury to herleft hand and DP&R provided her with an accommodation. (FAC, 9928-30.) On August 18, Plaintiff alleges that she had a verbal altercation with William Pfeiffer, Permanent Lifeguard and ended up going home that day. (FAC, §31.) Plaintiff alleges that she continued to work for the DP&R. without incident until the date of her termination on September 15, 2015. (FAC, 935-36.) The conduct alleged in the FAC is insufficient for a hostile work environment (harassment) claim based on sex claim against any DP&R employee, and therefore the DP&R cannot be heldliable for by respondeat superior for such conduct. 9 Defendant California Department of Parks and Recreation’s Demurrer to First Amended Complaint; Memorandumof Points and Authorities; Declaration of Jasmine K, Bath (30-2016-00841378-CU-OE-CJC) co ~~ O N BA W w W 0 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CONCLUSION Defendant DP&R’s demurrer should be sustained in its entirety without leave to amend. (See Minskey v. City ofLos Angeles (1974) 11 Cal.3d 113, 118-119 [Where there is no possibility that an amendment would cure the complaint’s defects,it is appropriate to sustain the demurrer without leave to amend].) Itis a plaintiff’s burden to demonstrate how a complaint may be amended. (Hendry v. Losse (1991) 54 Cal.3d 723, 742.) Plaintiff has failed to plead sufficient facts to constitute claims against the DP&R for disability discrimination, failure to accommodate, and hostile work environment (harassment) based on sex. With regard to the disability discrimination and failure to accommodate claims, Plaintiff cannot plead an essential element, specifically, an actionable “disability” under the FEHA. Plaintiff sustained a sprained left hand and the DP&R provided her with an accommodation by placing her on light duty for a couple of days. Plaintiff even admits that she worked without incident from August 18 until the date of her termination on September 15. With regard to the sexual harassment claim, the alleged statements by Allen and Lee are isolated and directly related to the Tower 5 incident. Plaintiff has not identified any conduct by any DP&R employees that occurred outside the scope of necessary job performance, that was engaged in for personal gratification, because of meanness or bigotry, or for other personal motives. The FAC also does not allege any unwelcome sexual advances, physical touching, or sufficiently severe or pervasive conduct that altered the conditions of employment or created an abusive working environment. Absent a showing by Plaintiff that she can plead to overcome these obstacles, leave to amend should be denied. 10 Defendant California Department of Parks and Recreation’s Demurrer to First Amended Complaint; Memorandumof Points and Authorities; Declaration of Jasmine K. Bath (30-2016-00841378-CU-OE-CIC) O O 0 ~ ~ O N o n B L N N o n N [\ .] N S n o B o N o - -_ - - _ - _ - - - - - - Z N BR R R R S O L E B S $ I a r r 6 0 o o Dated: June 15,2016 Respectfully Submitted, KAMALA D. HARRIS Attorney General of California GARY S. BALEKJIAN Supervising Deputy Attorney General (Ino JASMINE K. BATH Deputy Attorney General Attorneysfor Defendants California Department ofParks and Recreation, Mark Allen, and Chris Lee 11 Defendant California Department of Parks and Recreation’s Demurrerto First Amended Complaint; Memorandumof Points and Authorities; Declaration of Jasmine K. Bath (30-2016-00841378-CU-OE-CIC) oc h B H W N O O e e ~ ~ O y 10 1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DECLARATION OF JASMINE K. BATH I, JASMINE K. BATH, declare as follows: 1. Iama Deputy Attorney General with the Office of the Attorney General of the State of California. I am licensed to practice before the courts of the State of California. I have been assigned as counsel to represent Defendants California Department of Parks and Recreation, Mark Allen, and Chris Lee, in this matter. 2. On May 16, 2016, Defendants sent correspondence to Plaintiff regarding the deficiencies of the First Amended Complaint. (Attached as Exhibit “1” is a true and cotrect copy of the May 16 correspondence.) 3. On or about May 31, 2016, Plaintiff responded to Defendant’s meet and conferletter advising that she was not going to file an amended pleading. Attached as Exhibit “2”is a true and correct copy of the May 31 correspondence.) 4, On June 10, 2016,the parties had a telephonic conference regarding the FAC, specifically, Plaintiff’s failure to plead sufficient facts in support of her disability discrimination, failure to accommodate, and sexual harassment causes of action against the DP&R. The parties did not reach a resolution, which resulted in the filing of this Demurrer. I declare under penalty of perjury of the laws of the State of California that the forgoing is true and correct. Executed on june]9. 2016, in Los Angeles, California. JASMINE K. BATH 1.LA2016500952 62016457.doc 12 Defendant California Department of Parks and Recreation’s Demurrer to First Amended Complaint; Memorandumof Points and Authorities; Declaration of Jasmine K. Bath (30-2016-00841378-CU-OE-CJC) Exhibit “1” e T ~ ~ KAMALA D. HARRIS State of California Attorney General DEPARTMENT OFJUSTICE 300 SOUTH SPRING STREET, SUITE 1702 LOS ANGELES, CA 90013 Public: C13 897-2000 Telephone: (213) 897-0996 _ Facsimile: (213) 897-1071 E-Mail: Jasmine.Bath@doj.ca.gov May 16, 2016 VIA ELECTRONIC AND FIRST-CLASS MAIL Brenna V. Johnson, Esq. JOHNSON EMPLOYMENT LAW 13681 Newport Ave., Suite 8393 Tustin, CA 92780 e-mail:brenna@johnsonemplaw.com Joshua D. Bordin-Wosk BORDIN MARTORELLI LLP 6080 Center Drive, 6" Floor Los Angeles, CA 90045 e-mail: jbordinwosk@bordinmartorell.com RE: KIRSTEN YONAN v. CALIFORNIA DEPARTMENT OFPARKSAND RECREATION; MARKALLEN; CHRIS LEE; and DOES 1 through 50, inclusive Superior Court of California, County of Orange, Case No. 30-2016-00841378 Dear Ms, Johnson and Mr. Bordin-Wosk: We are in receipt of Plaintiff's First Amended Complaint (“FAC”) served via regular mail on May 11, 2016. Thank you for amending the original complaint. After evaluating the FAC, we conclude that Demurrers and Motions to Strike are proper. Based on our calculations, Defendants’ responsive pleadings are due on June 15, 2016. Please contact our office before Friday, May 27, 2016 to discuss the deficiencies of the FAC, which are set forth below. I. THE SECOND CAUSE OF ACTION FOR DISABILITY DISCRIMINATION AGAINST DP&R IS DEFICIENT Plaintiff fails to allege sufficient facts to establish a disability discrimination cause of action against DP&R. To prove a cause of action for disability discrimination, one must establish (1) that plaintiff has a disability or medical condition or was regarded as suffering from a disability; (2) plaintiff could perform the essential duties of the job with or without a reasonable accommodation; (3) the defendant took adverse employment action against plaintiff; and (4) plaintiff's actual or perceived disability or medical condition was a substantial motivating factor for the adverse employmentaction. (Faust v. Cal. Portland Cement Co. (2007) 150 Cal.App.4th 864, 886.) Brenna V. Johnson Joshua D. Bordin-Wosk May 16, 2016 Page 2 UnderCalifornia Government Code section 12926, subdivision (m), a qualifying physical disability is defined as: “(1) Having any physiological disease, disorder, condition, cosmetic disfigurement, or anatomical loss that does bothof the following: (A) Affects one or more of the following body systems: neurological, immunological, musculoskeletal, special sense organs, respiratory, including speech organs, cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin, and endocrine. (B) Limits a major life activity.” To determine whethera disability substantially limits a majorlife activity, for purposes of a claim understate or federal disability discrimination in employmentlaw, the court must examine the effect of the alleged impairment on the life in question; generally, a condition will not qualify as a “disability” unless the alleged impairments substantially limit the ability ofthe plaintiff to perform majorlife activities which includes such functions as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, learning and working. (Hobson v. Raychem Corp. (1999) 73 Cal. App.4th 614, 626.) Plaintiff fails to allege sufficient facts establishing that a sprained hand and a temporary work restriction is an actionable “disability” under the FEHA. (See Gov. Code § 12926, subdivision (m).) Plaintiff alleges that her left hand injury prevented her from a majorlife activity, specifically, her lifeguard job. (FAC, §49.) This is insufficient to establish that Plaintiff had an actionable disability under the FEHA. Plaintiffs left hand injury did not prevent her from working as she did in fact work from August 15 to August 19, 2015. Furthermore, Plaintiff fails to allege whether she could perform the essential functions of a lifeguard, with or without an accommodation. Plaintiff cannot maintain a disability discrimination cause of action against DP&R and therefore, DP&R requests that Plaintiff dismiss this cause of action in its entirety, or agree to amend. II. THE THIRD CAUSE OF ACTION FOR FAILURE TO ACCOMMODATE AGAINST DP&R IS DEFICIENT In orderto establish a failure to accommodate claim, Plaintiff is required to show: (1) the plaintiff has a disability under the FEHA, (2) the plaintiff is qualified to perform the essential functions of the position, and (3) the employer failed to reasonably accommodate the plaintiff's disability. (Scotch v. The Art Institute ofCalifornia-Orange County, Inc. (2009) 173 Cal.App.4th 986, 1009-1010.) Here, Plaintiff fails to plead an actionable “disability” under the FEHA. Additionally, Plaintiff fails to plead whether she was qualified to perform the essential functions of the lifeguard position. Plaintiff cannot maintain a failure to accommodate cause of action against Brenna V. Johnson Joshua D. Bordin-Wosk May 16, 2016 Page 3 DP&R and therefore, DP&R requeststhat Plaintiff dismiss this cause of action in its entirety, or agree to amend. III. THE FOURTH CAUSE OF ACTION FOR SEXUAL HARASSMENT UNDER THE FEHA AGAINST ALL DEFENDANTSIS DEFICIENT Plaintiff does not plead sufficient facts to support a sexual harassment cause of action against Defendants. ) The California Supreme Court has defined “harassment” as “conduct outside the scope of necessary job performance, conduct presumably engaged in for personal gratification, because of meanness or bigotry, of for other personal motives.” (Reno v. Baird (1998) 18 Cal.4th 640, 645.) Harassment claims are based on a type of conduct that is avoidable and unnecessary to job performance. (Janken v. GMHughes Electronics (1996) 46 Cal.App.4th 55, 64.) Examples of harassing behavior include slurs or derogatory drawings, physical interference with freedom of movement, and engaging in unwanted sexual advances, none of which are necessary to carry out the legitimate objectives of personnel management. (/bid.) Discrimination claims, by contrast, arise out of the performance of necessary personnel management duties, such as hiring and firing, job or project assignments, promotion or demotion, performance evaluations, the provision of support, and the assignment or non-assignment of supervisory functions. (/bid,) These duties are inherently necessary to the performance of a supervisor’s job. In the event that these personnel management decisions were based on improper motives, the remedy under FEHA is for discrimination, not for harassment. (Ibid. at p. 65.) The elements of a cause of action for hostile work environment (harassment) based on sex are: (1) plaintiff belongs to a protected group; (2) plaintiff was subject to unwelcome sexual harassment; (3) the harassment complained of was based on sex; (4) the harassment complained of was sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment; and (5) respondeat superior. (Fisher v. San Pedro Peninsula Hosp. (1989) 214 Cal.App.3d 590, 608.) : A. Defendant DP&R Plaintiff does not allege sufficient facts to constitute sexual harassment under the FEHA against DP&R. Plaintiff’s sexual harassment cause of action is supported by conclusory allegations that she was subject to unwelcomesexual advances, rude, degrading, and derogatory sexual comments, and physical touching and assault, which resulted in a hostile work environment. (FAC, 169.) Plaintiff fails to allege facts as to how the alleged harassment was sufficiently pervasive such that it altered the conditions of her employment or created an abusive working environment. Thus, the conduct alleged in the FAC is insufficient for a hostile work environment (harassment) claim based on sex against any DP&R employee, and therefore, the DP&R cannot be held liable for by respondeat superior for such conduct. Brenna V, Johnson Joshua D. Bordin-Wosk May 16,2016 Page 4 B. Defendant Mark Allen Plaintiff's allegations are insufficient to constitute a sexual harassment cause of action against Allen, On June 24, 2015, Plaintiff alleges that Allen stated to her, there was “not much he could do” about the sexual battery “because they’re minors” and noted that Plaintiff was “not wearing a lot of clothing” so she should be more aware of her surroundings. Additionally, Allen commented, “boys will be boys.” (FAC, 19.) The following day, Allen allegedly asked Plaintiff whether she ever dated Chris Lee. (FAC, 122.) On July 3, 2015, Allen apologized to Plaintiff for the harassmentincident involving two, non-DP&R employees. (FAC, 126.) The FAC fails to identify any other alleged incidents of harassment by Allen. Allen’s three interactions with Plaintiff were related to the sexual battery incident and no improper motives are alleged in association with these interactions. Plaintiff s allegations are insufficient to establish that Allen made any statements or comments to Plaintiff in order to harass her based on Plaintiff's gender that were severe or pervasive. Thus, Plaintiff cannot maintain a sexual harassment cause of action against Allen. C. | Defendant Chris Lee Plaintiff’s allegations are insufficient to constitute a sexual harassment cause of action against Lee. On June 24, 2015, Plaintiff alleges that Lee stated to her, “How was the ass-grab on Tower 5 today?” (FAC, § 18.) Plaintiff does not allege any other allegations against Lee and fails to plead facts establishing that she was subject to a hostile work environment by Lee. Thus, Plaintiff cannot maintain a sexual harassment cause of action against Lee. As the FAC does not state facts sufficient to constitute a claim for sexual harassment, Defendants request that Plaintiff dismiss this cause of action in its entirety or agree to amend. IV. PLAINTIFF’S ALLEGATIONS AND PRAYER FOR PUNITIVE DAMAGES AGAINST DEFENDANTS ARE IMPROPER AND SHOULD BE STRICKEN FROM THE FAC Plaintiff's allegations andprayer for punitive damages against Defendants is improper and should be stricken from the FAC. A. Defendant DP&R Defendant DP&R is immune from punitive damages. Government Code section 818 states: Notwithstanding any other provision of law, a public entity is not liable for damages awarded under Section 3294 ofthe Civil Code or other damages imposed primarily for the sake of example and by way of punishing the defendant.” The Legislative Committee Commentto Section 818 states: “[t]his section exempts public entities from liability for punitive or exemplary damages.” Government Code section 825 further provides that “[n]othing in this section authorizes a public entity to pay that part of a claim or judgmentthatis for punitive or exemplary Brenna V. Johnson Joshua D. Bordin-Wosk May 16, 2016 Page 5 damages.” (See also Austin v. Regents of University ofCalifornia (1979) 89 Cal.App.3d 354, 358; McAllister v. South Coast Air Quality Etc. Dist. (1986) 183 Cal.App.3d 653, 656.) Because Defendant DP&Ris a public entity,it is immune from punitive damages, and thus, Plaintiff needs to amend the FAC to removethe punitive damagesallegations and prayer against DP&R. (FAC, 1745, 54, 65,74, 83, 88, 93, 129, and p. 17, line 10.) B. Defendants Mark Allen and Chris Lee Withregard to Defendants Allen and Lee, Plaintiff's conclusory allegations do not justify punitive damages against them. A complaint must state more than conclusory allegations for the recovery of punitive or exemplary damages against a defendant. (Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872.) With respect to Defendants Allen and Lee, punitive damages are only allowed “whereit is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud or malice.” (Civ. Code, § 3294, subd. (a).) “Malice” means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” (Civ. Code, 3294, subd. (c)(1).) “Oppression” means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard ofthat person’s rights. (Civ. Code, § 3294,subd, (c)(2).) “Fraud” means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant withthe intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury. (Civ. Code, § 3294, subd. (c)(3).) 1. Defendant Mark Allen Plaintiff’s allegations are insufficient to warrant the imposition of punitive damages against Allen. In support of Plain{iff’s punitive damages claim against Allen, Plaintiff alleges that Allen stated to her, there was “not much he could do” about the sexual battery “because they’re minors” and noted that Plaintiff was “not wearing a lot of clothing” so she should be more aware of her surroundings. Additionally, Allen commented, “boys will be boys.” (FAC, | 19.) Plaintiff does not allege that Allen subject Plaintiff to “cruel and unjust hardship” or “unjust or cruel exercise of authority or power.” (Kendall Yacht Corp. v. United California Bank (1975) 50 Cal.App.3d 949, 958.) Both malice and oppression require a showing of an evil motive, the animus malus, shown by malice in fact and characteristics evidenced by fraud or oppression. An award of exemplary damages cannot be based on mere speculation; there must be a definite showing of a willingness to vex, harass, or injure consistent with an intent to injure. (/bid.) Here, Allen spoke to Plaintiff on three separate occasions regarding the sexual battery involving Plaintiff. On one of those occasions, Allen allegedly apologized for the harassment Brenna V, Johnson Joshua D, Bordin-Wosk May 16,2016 Page 6 incidentthat involved two, non-DPR employees. (FAC, §26.) Plaintiff fails to allege sufficient facts to support that Allen made any statements or comments to her in order to harass or injure her. Accordingly,the FAC shouldbe amended to remove the punitive damages allegations and prayer against Allen. 2. Defendant Chris Lee Plaintiff’s allegations are insufficient to warrant the imposition of punitive damages against Lee. In support of Plaintiff's prayer for punitive damages against Lee, Plaintiff alleges ~ that Leestated to her, “How was the ass-grab on Tower 5 today?” (FAC, { 18.) This alleged statement by Lee is insufficient to establish Lee’s intent to vex, annoy, or injure Plaintiff, There must be an intent to vex, annoy or injure. . . . Mere negligence, even gross negligence,is not sufficient to justify such an award.” (Ebaugh v. Rabkin (1972) 22 Cal.App.3d 891, 894; Kendall Yacht Corp. v. United California Bank (1975) 50 Cal.App.3d 949, 958 [showing for malice].) Plaintiff’s single allegation against Lee regarding the one alleged statementis insufficient to warrant the imposition of punitive damages. Accordingly, the FAC should be amended to remove the punitive damages allegations and prayer against Lee. Please contact me before Friday, May 27, 2016 so we can meet and confer in compliance with Code of Civil Procedure section 430.41 before the filing of Defendants’ demurrers and motion to strike. Thank youfor your time and prompt attention to this matter. Sincerely, hath, JASMINE K. BATH Deputy Attorney General For KAMALA D. HARRIS Attorney General JKB:me | ( L.A2016500952 61981791.doc Exhibit “2” Joa | ( ( ; Ro] Jonson EMPLOYMENT Law Yia Email andU.S. Mail May 31, 2016 Jasmine K. Bath, Esq. Deputy Attorney General 300 S. Spring St., Ste. 1702 Los Angeles, CA 90013 Jasmine.Bath@doj.ca.gov Re: Meet and Confer Re: Kirsten Yonan File Client: Kirsten Yonan File No.: 2200.014 Subject: Meet and Confer Re: Fist Amended Complaint Dear Ms. Bath: We are in receipt of your meet and confer letter with respect to Kirsten Yonan’s First Amended Complaint (“FAC”). We do not find your legal arguments requesting revisions or dismissals to be persuasive. Ms. Yonan’s FAC provides detailed facts with respectto her legal claims and allegations, including conversations, dates, names, and specific acts forming the basis of her claims. However, your meet and confer letter claims that Ms. Yonan has not met the pleading standard for most ofher legal claims. Thisis an incorrect assertion. California simply requires that the complaint contain “a statementof the facts constituting the cause of action, in ordinary and concise language.” Cal. Code Civ. Proc. © §425.10. This is exactly what Ms. Yonan has done. In fact, Ms. Yonan has alleged the essential and ultimate facts of every single claim contained in the FAC,as required by California courts. C.4. v. William S. Hart Union High School Dist., 53 Cal. 4th 861, 872 (2012). On the other hand, your meet and conferletter requeststhat Ms. Yonan actually prove her claims in her FAC. This is not a requirement under the Code and cannot form the basis of any motion to strike or demurrer. 13681 Newport Ave, Suite 8393 « Tustin, CA 92780 + 949.238.8044 + brenna@johnsonemplaw.com www.johnsonemplaw.com Additionally, punitive damages can be awarded against a public entity who is paying for the defense ofits public employees when those employees are found to be acting within the scope oftheir employer. Cal. Gov’t Code 825(b)). Therefore, Ms. Yonan will not be further amending her Complaint. Should you like to discuss this matter further, please contact me at 949.238.8044, Very Truly Yours, JOHNSON EMPLOYMENT LAW Toefn Brenna V. Johnson brenna@johnsonemplaw.com BVJkr cc: Client 13681 Newport Ave, Suite 8393 +» Tustin, CA 92780 * 949.238.8044 » brenna@johnsonemplaw.com + wwwJohnsonemplaw.com DECLARATION OF SERVICE BY U.S. MAIL Case Name: Kirsten Yonan v. Dept. of Parks and Rec. No.: 30-2016-00841378-CU-OE-CJC I declare: I am employed in the Office of the Attorney General, which is the office of a member of the California State Bar, at which member's direction this service is made. I am 18 years of age or older and not a party to this matter. I am familiar with the business practice at the Office of the Attorney General for collection and processing of correspondence for mailing with the United States Postal Service. In accordance with that practice, correspondence placed in the internal mail collection system at the Office of the Attorney General is deposited with the United States Postal Service with postage thereon fully prepaid that same day in the ordinary course of business. On June 15, 2016, I served the attached Def California Dept. of Parks and Recreation’s Demurrer to First Amended Complaint; Memo. of P’s and A’s; Decl. of Jasmine K. Bath by placing a true copy thereof enclosed in a sealed envelope in the internal mail collection system at the Office of the Attorney General at 300 South Spring Street, Suite 1702, Los Angeles, CA 90013, addressed as follows: Brenna V. Johnson, Esq. JOHNSON EMPLOYMENT LAW 13681 Newport Ave., Suite 8393 Tustin, CA 92780 Attorneys for Plaintiff Joshua D. Bordin-Wosk, Esq. BORDIN MARTORELL LLP 6100 Center Drive, Suite 1130 Los Angeles, CA 90045 Attorneys for Plaintiff I declare under penalty of perjury under the laws of the State of California the foregoing is true and correct and that this declaration was executed on June 15, 2016, at Los Angeles, California, Yvette Wright | 5 Declarant () ighature LA2016500952 62016829.doc