Declaration of Megan Atkinson In Support of Defendant City of Pomonas Demurrer To Plaintiffs First Amended Complaint And Motion To StrikeMotionCal. Super. - 2nd Dist.July 24, 2018 Electronically FILED by Superqr Court of California, County of Los Angeles on 03/29/2019 12:37 PM Sherri R. Carter, Executive Officer/Clerk of Court, by M. Soto,Deputy Clerk 1 || Mark H. Meyerhoff, Bar No. 180414 mmeyerhoff @lcwlegal.com 2 || Joung H. Yim, Bar No. 216136 jyim@Icwlegal.com 3 || Megan Atkinson, Bar No. 282648 matkinson@lcwlegal.com 4 || LIEBERT CASSIDY WHITMORE A Professional Law Corporation 5|| 6033 West Century Boulevard, 5th Floor Los Angeles, California 90045 6 || Telephone: 310.981.2000 Facsimile: 310.337.0837 7 Attorneys for Defendants CITY OF POMONA 8 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 COUNTY OF LOS ANGELES 11 5 RUTH FLORES, an individual, Case No.: BC700151 2, 12 o £ 83 Plaintiff, [ASSIGNED FOR ALL PURPOSES TO HON. g ggz 13 ELAINE LU, DEPT. 26] £35 5 v. z3 Zz 14 Complaint Filed: March 1, 2018 Zp © CITY OF POMONA a public entity, s 55 5 15|| MICHAEL NEADERBAOMER, an DECLARATION OF MEGAN ATKINSON IN ££% 2 individual, and DOES 1 through 10, SUPPORT OF DEFENDANT CITY OF = & = 4 16|| inclusive, POMONA’S DEMURRER TO PLAINTIFF’S s FIRST AMENDED COMPLAINT AND © 17 Defendant. MOTION TO STRIKE 18 [Filed concurrently with Notice of Demurrer and Demurrer; Notice of Motion and Motion to Strike; 19 and Proposed Order] 20 Date: May 2, 2019 Time: 8:30 a.m. 21 Dept.: 26 22 Reservation ID: 559831179331 23 (*Exempt from filing fees pursuant to Gov. Code, § 6103.) 24 25 26 27 28 1 Declaration of Atkinson in Support of Defendant’s Demurrer to First Amended Complaint and Motion to Strike 8841173.1 PO020-143 Li eb er t Ca ss id y W h i t m o r e A Pr of es si on al La w Co rp or at io n 6 0 3 3 W e s t C e n t u r y B o u l e v a r d , St h Fl oo r Lo s A n g e l e s , Ca li fo rn ia 9 0 0 4 5 ~N O N wn A W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 21 28 DECLARATION OF MEGAN ATKINSON 1. I am an attorney at law duly licensed to practice in all courts of the State of California. Iam an Associate with the law firm of Liebert Cassidy Whitmore, attorneys of record for Defendant City of Pomona (“City”), in the above-captioned matter. I am familiar with the papers and files in this case and I have personal knowledge of all facts set forth herein. If called upon to testify to same, I could and would so testify. I am making this declaration in support of the City’s Demurrer to the First Amended Complaint and Motion to Strike. 2. Plaintiff Ruth Flores (“Plaintiff”) filed and served her First Amended Complaint (“FAC”) on February 22, 2019. She is represented by Devon Lyon. 3. On March 20, 2019, my assistant sent a letter on my behalf to Ms. Lyon, stating that the City intended to demur to all causes of action in the FAC and to file a motion to strike. The letter identified supporting authority for both the demurrer and motion to strike. Attached hereto as Exhibit A is a true and correct copy of my letter. The letter is dated March 15, 2019 but it was sent by email and mail on March 20, 2019. 4, On March 22, 2019, I called and emailed Plaintiff’s counsel to set up a time to discuss the contents of my letter by phone. We arranged to have the call on March 26, 2019. 3: On March 26, 2019, I spoke with Ms. Lyon by phone. The parties did not reach an agreement for resolving the issues raised in my meet and confer letter. I declare under the penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed this 29th day of March 2019, at Los Angeles, California. /s/ Megan Atkinson Megan Atkinson 2 Declaration of Atkinson in Support of Defendant’s Demurrer to First Amended Complaint and Motion to Strike 8841173.1 PO020-143 EXHIBIT A LieerT CAssipy WHITMORE 6033 WEST CENTURY BOULEVARD, 5TH FLOOR LOS ANGELES, CALIFORNIA 90045 T:310.981.2000 F: 310.337.0837 matkinson@lcwlegal.com 310.981.2058 March 15, 2019 VIA EMAIL & U.S. MAIL d.lyon@lyon-legal.com Ms. Devon M. Lyon LYON LEGAL, PC. 2698 Junipero Ave. Suite 201A Signal Hill, California 90755 Re: Ruth Flores v. City of Pomona Meet and Confer re Motion to Strike and Demurrer to First Amended Complaint Client-Matter: PO020/143 Dear Ms. Lyon: Please allow this letter to serve as the City’s request to meet and confer regarding its intent to move to strike allegations in the First Amended Complaint (“FAC”) filed by Plaintiff Ruth Flores (“Plaintiff”) on February 22, 2019. The City will request the Court strike allegations of wrongdoing which allegedly occurred before November 6, 2016 because they are barred by the statute of limitations. In addition, the City would like to meet and confer because it intends to demurrer to all of the causes of action in the FAC for the reasons detailed below. I. THE CITY INTENDS TO MOVE TO STRIKE ALLEGATIONS OF WRONGDOING WHICH ALLEGEDLY OCURRED BEFORE NOVEMBER 6, 2016 BECAUSE THEY ARE BARRED BY THE STATUTE OF LIMITATIONS Actions brought under FEHA are subject to two periods of limitation. An administrative complaint must be filed with the Department of Fair Employment and Housing (“DFEH”) within one year of the alleged Fair Employment and Housing Act (“FEHA”) violation. (Gov. Code § 12960, subd. (d).) Once the DFEH issues a right-to-sue letter, a plaintiff must file a lawsuit within one year from the issuance of that letter. (Gov. Code § 12965, subd. (b).) Here, Plaintiff filed her Charge of Discrimination with the DFEH on November 6, 2017 and therefore cannot include allegations and claims pre-dating November 6, 2016. (See Trovato v. Beckman Coulter, Inc. (2011) 192 Cal.App.4th 319, 323; Romano v. Rockwell Internet, Inc. (1996) 14 Cal.4th 479, 492; Gov. Code § 12960, subd. (d).) Los Angeles | San Francisco | Fresno | San Diego! Sacramento www.lcwlegal.com 8827201.1 PO020-143 Ms. Devon Lyon Re: Ruth Flores v. City of Pomona Meet and Confer re Motion to Strike and Demurrer to First Amended Complaint March 15, 2019 Page 2 Under the continuing violation doctrine, an employer can be liable for actions that take place outside the limitations period if these actions are sufficiently linked to unlawful conduct that occurred within the limitations period. (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1056.) However, “the FEHA statute of limitations begins to run when an alleged adverse employment action acquires some degree of permanence or finality.” (/d. at p. 1059.) In Jumaane v. City of Los Angeles, the plaintiff suffered harassment and retaliation in the 1990’s and at least some incidents were similar or related and were reasonably frequent at various times. (Jumaane v. City of Los Angeles, supra, 241 Cal.App.4th at 1403.) Nevertheless, the court found as a matter of law that the claims were time barred and the continuing violation doctrine did not apply because the plaintiff knew that future efforts to make changes would be futile. (/d. at p. 1404.) Here, the FAC alleges the following wrongdoing pre-dating November 6, 2016: 1. 2007: Officer Fernando Flores wrote a gay slur directed at Plaintiff that stated “Ruth Flores is gay and she needs to leave this department” on a box in the evidence locker. Officer Flores was suspended for the incident for 2 days. After he was disciplined, certain male officers shunned Plaintiff by refusing to interact with her in a friendly manner and cancelling calls to her as a back-up unit. (FACT 19) SS ] November 2010: Plaintiff’s father-in-law approached two City police officers and proudly stated that his daughter served the City as well. When he identified Plaintiff as one of them, they commented “Oh, the leader of the rainbow coalition.” (FAC § 21) 3. 2013: Plaintiff applied for a position at the police department within the Training and Recruitment office but was denied. The position was offered to a less qualified male colleague. The only explanation provided to Plaintiff was that the office needed a certain type of “cohesiveness.” (FAC 22) 4. 2014: A gay police officer recruit overheard Corporal Jensen and Sergeant Devee refer to Plaintiff as the “leader of the rainbow coalition.” Plaintiff complained to Captain Guzek who reported it to the Deputy Chief of Police but no disciplinary action was taken against Corporal Jensen or Sergeant Devee. (FAC 23) 5. 2014: Officer Jensen told a Police Explorer that Plaintiff had a poor work ethic. (FAC | 23) 6. 2015: Plaintiff requested to become a Field Training Officer (“FTO”) but was denied the opportunity to attend the necessary coursework. Instead, less qualified male officers were chosen to attend. Plaintiff objected to her exclusion and was 8827201.1 PO020-143 Ms. Devon Lyon Re: Ruth Flores v. City of Pomona Meet and Confer re Motion to Strike and Demurrer to First Amended Complaint March 15, 2019 Page 3 eventually admitted to the class 4 months later but was told by classmates that she “wasn’t supposed to be there.” (FAC 924) 7. 2015-2016: There were 10-12 FTO’s available including Plaintiff. With the exception of Plaintiff, all were engaged with a trainee nearly 100% of the time. Although FTO eligible for 2 years, she was engaged with a trainee for only 10 weeks which is significantly less than her FTO colleagues. (FAC § 24) 8. 2015-2016: Plaintiff was regularly offered less overtime than white heterosexual officers who were friendly with Corporal Jensen. (FAC 9 25) All of the allegations of wrongdoing pre-dating November 6, 2016 acquired some degree of permanence or finality. For example, when Plaintiff's application for a position at the police department within the Training and Recruitment office was denied in 2013 because the office needed a certain type of “cohesiveness” (FAC § 22), the alleged adverse employment action was final. The City intends to request the Court strike allegations of wrongdoing pre-dating November 6, 2016 because they are time barred. II. THE CITY INTENDS TO DEMURRER TO THE FAC As a preliminary matter, the FAC appears to allege claims against a defendant who has been dismissed. The FAC refers to Michael Neaderbaomer as “Defendant.” See FAC § 6. The third and fourth causes of action are brought “against all defendants” whereas the other causes of action are brought against “City of Pomona and DOES 1-10.” However, the entire action was dismissed with prejudice as to Michael Neaderbaomer on January 14, 2019. Please confirm that Plaintiff is not pursuing any claims against Michael Neaderbaomer in the FAC. A. PLAINTIFF’S CLAIMS FOR DISCRIMINATION AND RETALIATION FAIL BECAUSE SHE DOES NOT ALLEGE ANY ADVERSE EMPLOYMENT ACTION THAT MATERIALLY AFFECTED THE TERMS, CONDITIONS OR PRIVILEGES OF HER EMPLOYMENT Plaintiff’s first and second causes of action allege discrimination on the basis of gender and sexual orientation. Her fifth and sixth causes of action allege retaliation on the basis of gender, sexual orientation and engaging in protected activity. These claims are not adequately pled because they do not allege any adverse employment action that materially affected the terms conditions or privileges of her employment. To establish a prima facie case of employment discrimination, the plaintiff generally must provide evidence that: (1) he or she was a member of a protected class, (2) he or she was qualified for the position sought or was performing competently in the position held, (3) he or she suffered an adverse employment action, such as termination, demotion, or denial of an 8827201.1 PO020-143 Ms. Devon Lyon Re: Ruth Flores v. City of Pomona Meet and Confer re Motion to Strike and Demurrer to First Amended Complaint March 15, 2019 Page 4 available job, and (4) some other circumstance suggests discriminatory motive. (Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 355, emphasis added.) Similarly, to establish a prima facie case of retaliation under FEHA, a plaintiff must show (1) he or she engaged in a protected activity, (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer’s action. (Yanowitz v. L'Oreal USA, Inc., supra, 36 Cal.4th at p. 1042, emphasis added.) To be actionable, an adverse employment action must materially affect the terms, conditions, or privileges of employment. (Yanowitz v. L'Oreal USA, Inc., supra, 36 Cal.4th at p. 1052.) A mere offensive utterance or even a pattern of social slights by either the employer or co-employees cannot properly be viewed as materially affecting the terms, conditions, or privileges of employment. (/d. at p. 1053.) In Malais v. Los Angeles City Fire Dept., the court held that the plaintiff, a firefighter, did not suffer an adverse employment action by being limited to special duty assignments instead of platoon duty. (Malais v. Los Angeles City Fire Dept. (2007) 150 Cal.App.4th 350, 358.) The court noted that not every change in the conditions of employment constitutes an adverse employment action. (/d. at p. 357.) “Workplaces 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.” (/d. at pp. 357-58.) Here, Plaintiff’s allegations do not arise to the level of an adverse employment action. For example, she alleges that “certain male officers in the department shunned Plaintiff by refusing to interact with her in a friendly manner and cancelling calls to her as a back-up unit.” (FAC 9419.) This is not the type of conduct which is actionable. (See Malais v. Los Angeles City Fire Dept., supra, 150 Cal.App.4th at p. 357-58 [“If every minor change in working conditions or trivial action were a materially adverse action then any action that an irritable, chip-on-the- shoulder employee did not like would form the basis of a discrimination suit.”]) Plaintiff generally alleges that she was denied a position within the Training and Recruitment office, was admitted to Field Training Officer (“FTO”) classes four months late, was engaged with a trainee less than her FTO colleagues, and was not assigned background checks after she was told that her prior background checks contained multiple errors. None of these actions involve a material change in the terms and conditions of Plaintiff’s employment as they do not involve a demotion, reduction in pay, loss of benefits, change in status, less distinguished title, or a significant change in job responsibilities or work hours. (See McRae v. Department of Corrections & Rehabilitation (2006) 142 Cal.App.4th 377, 393.) Indeed, the allegations center on discretionary collateral duties that do not amount to adverse employment actions, 8827201.1 PO020-143 Ms. Devon Lyon Re: Ruth Flores v. City of Pomona Meet and Confer re Motion to Strike and Demurrer to First Amended Complaint March 15, 2019 Page 5 B. PLAINTIFF’S CLAIMS FOR HARASSMENT FAIL BECAUSE THEY ARE BASED UPON PERSONNEL MANAGEMENT ACTIONS Plaintiff's third and fourth causes of action allege harassment on the basis of gender and sexual orientation. These claims fail because personnel management actions cannot serve as a basis for alleging harassment. The court in Janken v. GM Hughes Electronics concluded: [T]he Legislature intended that commonly necessary personnel management actions such as hiring and firing, job or project assignments, office or work station assignments, promotion or demotion, performance evaluations, the provision of support, the assignment or non-assignment of supervisory functions, deciding who will and who will not attend meetings, deciding who will be laid off, and the like, do not come within the meaning of harassment. These are actions of a type necessary to carry out the duties of business and personnel management. These actions may retrospectively be found discriminatory if based on improper motives, but in that event the remedies provided by the FEHA are those for discrimination, not harassment. Harassment, by contrast, consists of actions outside the scope of job duties which are not of a type necessary to business and personnel management. This significant distinction underlies the differential treatment of harassment and discrimination in the FEHA. (Janken v. GM Hughes Electronics (1996) 46 Cal. App.4th 55, 64-65.) Plaintiff’s claims for harassment are based upon “commonly necessary personnel management actions.” Plaintiff alleges that she applied for a position at the police department within the Training and Recruitment office but was denied. (FAC §22.) She alleges that she requested to become a Field Training Officer but was admitted to the class for it four months late. (FAC § 24.) She also alleges that she was engaged with a trainee less than her colleagues and was offered less overtime than her colleagues. (FAC 4 24-25.) Finally, she alleges that she stopped being assigned to perform background checks. (FAC 426.) Every single one of these actions relate to personnel decisions and therefore cannot serve as a basis for a claim of harassment. 8827201.1 PO020-143 Ms. Devon Lyon Re: Ruth Flores v. City of Pomona Meet and Confer re Motion to Strike and Demurrer to First Amended Complaint March 15, 2019 Page 6 Cc. PLAINTIFF’S CLAIM FOR FAILURE TO PREVENT DISCRIMINATION, HARRASSMENT AND RETALIATION FAIL BECAUSE THE UNDERLYING CLAIMS FAIL Previously, you cited State Dept. of Health Services v. Superior Court (2003) 31 Cal.4th 1026 as authority that FEHA makes it a separate unlawful employment practice for an employer to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring under Government Code section 12940, subdivision (k). We agree. However, a finding of discrimination, harassment or retaliation is required to support a finding of failure to prevent discrimination, harassment, or retaliation. (See Dickson v. Burke Williams, Inc. (2016) 234 Cal. App.4th 1307, 1317 [it would be anomalous to provide a remedy for failure to prevent acts that are not “unlawful” under FEHA].) For the reasons discussed above, Plaintiff fails to plead discrimination, harassment or retaliation and her claim for failure to prevent them cannot survive. (See Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1021 [an actionable claim under section 12940, subdivision (k) is dependent on a claim of actual discrimination].) II. CONCLUSION I am hopeful we can reach an agreement as to the issues I have raised. As you know, the City’s responsive pleading is due March 29, 2019. I plan to call you Friday to follow-up on this letter. Sincerely, LIEBERT CASSIDY WHITMORE N. Gtbuoet, Megan Atkinson MKA:mrg 8827201.1 PO020-143 Li eb er t Ca ss id y W h i t m o r e A Pr of es si on al La w Co rp or at io n 6 0 3 3 W e s t C e n t u r y B o u l e v a r d , St h Fl oo r Lo s A n g e l e s , Ca li fo rn ia 9 0 0 4 5 ~N O N wn A W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 21 28 PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES I am employed in the County of Los Angeles, State of California. I am over the age of 18 and not a party to the within action; my business address is: 6033 West Century Boulevard, Sth Floor, Los Angeles, California 90045. On March 29, 2019, I served the foregoing document(s) described as DECLARATION OF MEGAN ATKINSON IN SUPPORT OF DEFENDANT CITY OF POMONA'’S DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT AND MOTION TO STRIKE in the manner checked below on all interested parties in this action addressed as follows: Ms. Devon M. Lyon LYON LEGAL, P.C. 2698 Junipero Ave. Suite 201A Signal Hill, California 90755 Telephone: 562.216.7382 Facsimile: 562.216.7385 Email: d.lyon@lyon-legal.com M (BY U.S.MAIL) Iam “readily familiar” with the firm’s practice of collection and processing correspondence for mailing. Under that practice it would be deposited with the U.S. Postal Service on that same day with postage thereon fully prepaid at Los Angeles, California, in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. 0 (BY FACSIMILE) I am personally and readily familiar with the business practice of Liebert Cassidy Whitmore for collection and processing of document(s) to be transmitted by facsimile. I arranged for the above-entitled document(s) to be sent by facsimile from facsimile number 310.337.0837 to the facsimile number(s) listed above. The facsimile machine I used complied with the applicable rules of court. Pursuant to the applicable rules, I caused the machine to print a transmission record of the transmission, to the above facsimile number(s) and no error was reported by the machine. A copy of this transmission is attached hereto. 0 (BY OVERNIGHT MAIL) By overnight courier, I arranged for the above-referenced document(s) to be delivered to an authorized overnight courier service, FedEx, for delivery to the addressee(s) above, in an envelope or package designated by the overnight courier service with delivery fees paid or provided for. 3 Proof of Service 8841173.1 PO020-143 Li eb er t Ca ss id y W h i t m o r e A Pr of es si on al La w Co rp or at io n 6 0 3 3 W e s t C e n t u r y B o u l e v a r d , St h Fl oo r Lo s A n g e l e s , Ca li fo rn ia 9 0 0 4 5 ~N O N wn A W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 21 28 0 (BY ELECTRONIC SERVICE) By electronically mailing a true and correct copy through Liebert Cassidy Whitmore’s electronic mail system from mgoldstein @lcwlegal.com to the email address(es) set forth above. I did not receive, within a reasonable time after the transmission, any electronic message or other indication that the transmission was unsuccessful. LJ (BY PERSONAL DELIVERY) I delivered the above document(s) by hand to the addressee listed above. Executed on March 29, 2019, at Los Angeles, California. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. /s/ Michelle Goldstein Michelle Goldstein 4 Proof of Service 8841173.1 PO020-143 Court Reservation Receipt | Journal Technologies Court Portal Journal Technologies Court Portal Court Reservation Receipt Reservation Reservation ID: Status: 559831179331 RESERVED Reservation Type: Number of Motions: Demurrer - with Motion to Strike (CCP 430.10) 1 Case Number: Case Title: BC700151 RUTH FLORES VS. CITY OF POMONAET AL Filing Party: Location: City of Pomona, a public entity (Defendant) Stanley Mosk Courthouse - Department 26 Date/Time: Confirmation Code: May 2nd 2019, 8:30AM CR-QXCXTZUMS2PDXERT3 Fees Description Fee Qty Amount Demurrer - with Motion to Strike (CCP 430.10) *** Fees Exempted by 120.00 1 0.00 Gov Code 6103.1 *** TOTAL $0.00 Payment Amount: Type: $0.00 GOVT _EXEMPT € Back to Main = Print Page Copyright © Journal Technologies, USA. All rights reserved.
