Demurrer With Motion To Strike Ccp 43010

Motion

Cal. 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 Joung H. Yim, Bar No. 216136 jyim@Icwlegal.com Megan Atkinson, Bar No. 282648 matkinson @lcwlegal.com LIEBERT CASSIDY WHITMORE A Professional Law Corporation 6033 West Century Boulevard, 5th Floor Los Angeles, California 90045 Telephone: ~~ 310.981.2000 Facsimile: 310.337.0837 ~N O N wn A W N 8 || Attorneys for Defendants CITY OF POMONA 9 10 SUPERIOR COURT OF THE STATE OF CALIFORNIA 11 COUNTY OF LOS ANGELES - < . 12 || RUTH FLORES, an individual, Case No.: BC700151 g S 3 s 13 Plaintiff, [ASSIGNED FOR ALL PURPOSES TO HON. £ Stk ELAINE LU, DEPT. 26] »285 14 V. og = G3 nC Complaint Filed: March 1, 2018 SE£% 15|| CITY OF POMONA a public entity, £&9 2 MICHAEL NEADERBAOMER, an NOTICE OF DEMURRER AND DEMURRER d&g ¢ 16|| individual, and DOES 1 through 10, TO PLAINTIFF'S FIRST AMENDED « 8 inclusive, COMPLAINT; MEMORANDUM OF POINTS © 17 AND AUTHORITIES IN SUPPORT Defendant. 18 [Filed concurrently with Notice of Motion and Motion to Strike; Declaration of Megan Atkinson; 19 and Proposed Order] 20 Date: May 2, 2019 Time: 8:30 21 Dept.: 26 22 Reservation ID: 559831179331 23 (*Exempt from filing fees pursuant to Gov. Code, § 6103.) 24 25 26 27 28 1 Notice of Demurrer and Demurrer To Plaintiff’s First Amended Complaint 8837406.2 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 TO THE COURT, PLAINTIFF, AND HER ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on May 2, 2019 at 8:30 a.m., or as soon thereafter as the matter may be heard in Department 26 of the above-entitled Court, located at the Stanley Mosk Courthouse at 111 North Hill Street Los Angeles, CA 90012, Defendant CITY OF POMONA (“City”) will and hereby does demur to the First Amended Complaint (“FAC”) filed by Plaintiff RUTH FLORES (“Plaintiff”). The City demurs to Plaintiff’s FAC pursuant to Code of Civil Procedure section 430.10, subdivision (e), and on the grounds set forth in the demurrer below which is incorporated herein by reference. The Demurrer is based on this Notice of Demurrer, Demurrer and Memorandum of Points and Authorities served and filed herewith, the Declaration of Megan Atkinson, all of the pleadings and papers on file with the Court herein, on such matters as the Court may take judicial notice, and any further evidence and argument that the Court may receive at or before the hearing on this Demurrer. Dated: March 29, 2019 LIEBERT CASSIDY WHITMORE By: /s/ Megan Atkinson Mark H. Meyerhoff Joung H. Yim Megan Atkinson Attorneys for Defendants CITY OF POMONA 2 Notice of Demurrer and Demurrer To Plaintiff’s First Amended Complaint 8837406.2 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 DEMURRER TO FIRST AMENDED COMPLAINT Defendant City of Pomona hereby demurs to Plaintiff’s entire FAC and to the individual causes of action set forth therein on the following grounds: Demurrer to First Cause of Action Plaintiff’s first cause of action for gender discrimination under the California Fair Employment and Housing Act (“FEHA”) fails to state sufficient facts to constitute a cause of action against the City. (Code Civ. Proc., §430.10, subd. (e).) Demurrer to Second Cause of Action Plaintiff’s second cause of action for sexual orientation discrimination under FEHA fails to state sufficient facts to constitute a cause of action against the City. (Code Civ. Proc., §430.10, subd. (e).) Demurrer to Third Cause of Action Plaintiff’s third cause of action for harassment on the basis of gender under FEHA fails to state sufficient facts to constitute a cause of action against the City. (Code Civ. Proc., §430.10, subd. (e).) Demurrer to Fourth Cause of Action Plaintiff’s fourth cause of action for harassment on the basis of sexual orientation under FEHA fails to state sufficient facts to constitute a cause of action against the City. (Code Civ. Proc., §430.10, subd. (e).) Demurrer to Fifth Cause of Action Plaintiff’s fifth cause of action for retaliation on the basis of gender and sexual orientation under FEHA fails to state sufficient facts to constitute a cause of action against the City. (Code Civ. Proc., §430.10, subd. (e).) Demurrer to Sixth Cause of Action Plaintiff’s sixth cause of action for retaliation on the basis of engaging in a protected activity under FEHA fails to state sufficient facts to constitute a cause of action against the City. (Code Civ. Proc., §430.10, subd. (e).) 3 Notice of Demurrer and Demurrer To Plaintiff’s First Amended Complaint 8837406.2 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 Demurrer to Seventh Cause of Action Plaintiff’s seventh cause of action for failure to prevent discrimination, harassment and retaliation under FEHA fails to state sufficient facts to constitute a cause of action against the City. (Code Civ. Proc., §430.10, subd. (e).) Dated: March 29, 2019 LIEBERT CASSIDY WHITMORE By: sy Megan Atkinson Mark H. Meyerhoff Joung H. Yim Megan Atkinson Attorneys for Defendants CITY OF POMONA 4 8837406.2 PO020-143 Notice of Demurrer and Demurrer To Plaintiff’s First Amended Complaint 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 Page L INTRODUCTION cco eee eee ee eee eee eee eee e eee eee eee eee ee ae ee ee eee eae ae ee aeae ee neaeas 8 11. PLAINTIFF'S ALLEGATIONS ooo eee eee ee eee eee eee eee eee ee eee ae ee ee eae eeaeee eee ns 8 111. PROCEDURAL HISTORY cco eee eee eee eee eee ee eee eee ee ae ae ee aa ee ee aaa eeeanaa ee eennan 11 IV. STANDARD OF REVIEW coo eee eee ee eee eee eee ee eee ee eee esse ae en ee eenanaae eens 11 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 .....ooiiiiiee eee eee eee eens 12 B. PLAINTIFF'S CLAIMS FOR HARASSMENT FAIL BECAUSE THEY ARE BASED UPON PERSONNEL MANAGEMENT ACTION S eee eee eee eee eee eee eee eee eee ease etree eee ease etree eee ae eee ae eee as 14 C. PLAINTIFF'S CLAIM FOR FAILURE TO PREVENT DISCRIMINATION, HARASSMENT AND RETALIATION FAIL BECAUSE THE UNDERLYING CLAIMS FAIL ....ooveeeeieeeeeeeeeeeee 15 V. CONCLUSION cece eee ee esas etter esas esse teases es es sesessan esse eesessannnes 16 5 TABLE OF CONTENTS 8837406.2 PO020-143 Notice of Demurrer and Demurrer To Plaintiff’s First Amended Complaint 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 TABLE OF AUTHORITIES Page(s) State Cases Balikov v. Southern California Gas Co. (2001) 94 Cal APP-ALI 816 eines eects atest este sabes sees sbae setae sees see saae ees 11 Blank v. Kirwan (1985) 39 Cal.3d 311 eerie eee eee eee eee eee seas etree eer eee aae ee saree esate ee esbe ae sabe ee ssneeeesnes 12 Brosterhous v. State Bar (1995) 12 Cal.dth 315 ooo eects eee eres eraser eee ar ee saae ee sste ae stse ee ssse ee ssseeessnas 11 Dickson v. Burke Williams, Inc. (2016) 234 Cal APDAE. 1307 mss snssnonsnosnss swans. som ors is 5555555 555055.5 5555555 $55555538 SATE F555 00555 16 Evans v. City of Berkeley (2006) 38 CALAN 1 oot eee eet sate estes ste sabe ese estes este sete ane ee bee sree enn 11 Guz v. Bechtel Nat. Inc. (2000) 24 Cal.dth 317 coves eee eee ete errs eet ae sree etree etree saree saree esate ae eaae ae sare ee eare ee eras 12 Hernandez v. City of Pomona (1996) 49 Cal. APP.Ath T4902 Loc... t teste eee e nee esaesaee ees 11 Holmes v. Petrovich Development Co., LLC (2011) 191 Cal APPAR LOX cuss snnsninonsnsnss sumassn.o sons ors is 5555555 5550555555555 $55555538 SATE SV555 00555 12 Janken v. GM Hughes Electronics (1996) 46 Cal. APP.ALI 55 eects eet esate sabe estes bee sbbe sabe e sees bee saae ens 14 Jumaane v. City of Los Angeles (2015) 241 Cal. APP-Ath 1300 ....oeeiieiiiieeeee eee eects sete teesbte eee ene e ss eesaae ees 15 Malais v. Los Angeles City Fire Dept. (2007) 150 Cal. APP-Ath 350 «cenit ee eee sete e es es sabe setae nee esaesaee ees 13 McRae v. Department of Corrections & Rehabilitation (2006) 142 Cal APDAE. BT scsumuns snssninonsnsnss swans. sommes oe55515 5555555 56505055.5. 55555508 S55555738 SAFER 55555 13, 14 Newell v. State Farm General Ins. Co. (2004) 118 Cal.APP.Ath 1094 .......eiiie ee eee sates sees sbae sabes eebeesbae ees 12 Reno v. Baird (1998) 18 Cal.dth 640 .......oveeeieeeiie eee eee etter teeters etree sere esata ae sarees ease ee ssseae sarees ssseeensnes 15 Scotch v. Art Institute of California (2009) 173 Cal APP-Ath O86... eee sete eee stbe sabe e sees sae sae ees 16 Yanowitz v. L’Oreal USA, Inc. (2005) 36 CALA TOZB cs. 5.5050 mmm 5550550555557 255505 5505 5558 555545 F555 S355 RASA SAAS 12 Notice of Demurrer and Demurrer To Plaintiff’s First Amended Complaint 8837406.2 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 Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112 ......... State Statutes Code Civ. Procedure § 430.10(e) 7 Notice of Demurrer and Demurrer To Plaintiff’s First Amended Complaint 8837406.2 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 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION Plaintiff Ruth Flores (“Plaintiff”) is currently employed as a Police Officer with the City of Pomona Police Department (“Department”). She identifies herself as a lesbian. Plaintiff contends that she experienced discrimination, harassment and retaliation based on her gender and sexual orientation in violation of the Fair Employment and Housing Act (“FEHA”). However, as alleged, her claims are subject to demurrer for several reasons. First, the City is concurrently filing a Motion to Strike because the applicable statute of limitation bars conduct that allegedly occurred before November 6, 2016. Second, 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. Third, Plaintiff’s claims for harassment fail because they are based upon personnel management actions, thus cannot form the basis of a harassment claim as a matter of law. Finally, her claim for failure to prevent discrimination, harassment and retaliation fail because the underlying claims fail. This Court should therefore sustain the City’s Demurrer to all of the causes of action in Plaintiff’s FAC. II. PLAINTIFEF’S ALLEGATIONS Plaintiff makes the following allegations in the FAC: In 2007, an officer named Fernando Flores wrote “Ruth Flores is gay and she needs to leave this department” on a box in an evidence locker. (FAC 19.) The City suspended Officer Flores for two days. (Ibid.) After Officer Flores 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. (/bid.) In November 2010, Plaintiff’s father saw two Department officers in a grocery store and informed them that Plaintiff was his daughter. (FAC 21.) The officers allegedly commented that Plaintiff was “the leader of the rainbow coalition.” (Ibid.) In 2013, Plaintiff applied for a position in the Department’s Training and Recruitment office. (FAC {22.) Plaintiff was not selected for the position and alleges that a less qualified 8 Notice of Demurrer and Demurrer To Plaintiff’s First Amended Complaint 8837406.2 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 male officer was chosen instead. (/bid.) Plaintiff was told that she was not selected for the position because the office needed a certain type of “cohesiveness.” (Ibid.) She claims that the position included additional compensation and advancement within the department. (Ibid.) In 2014, Plaintiff alleges that a police officer recruit overheard Corporal Jensen and Sergeant Devee refer to Plaintiff as the “leader of the rainbow coalition.” (FAC 23.) Plaintiff allegedly complained to Captain Guzek, who subsequently reported it to the Deputy Chief of Police. (Ibid.) Plaintiff alleges that no disciplinary action was taken and that she continued to work with Corporal Jensen and Sergeant Devee. (Ibid.) In 2014, Plaintiff claims that a Police Explorer requested to accompany her on a ride along, but was told by Officer Jensen that Plaintiff had a poor work ethic. (FAC 23.) In 2015, Plaintiff requested to become a Field Training Officer (“FTO”) but she “was denied the opportunity to attend the necessary coursework.” (FAC {24.) Instead, less qualified male officers were chosen to attend. (/bid.) Plaintiff objected to her exclusion and was eventually admitted to the class 4 months later but was told by classmates that she “wasn’t supposed to be there.” (Ibid.) In 2015 and 2016, there were 10-12 FTO’s available including Plaintiff. (FAC 924.) With the exception of Plaintiff, all were engaged with a trainee nearly 100% of the time. (Ibid.) Although FTO eligible for 2 years, she was engaged with a trainee for only 10 weeks which is significantly less than her FTO colleagues. (Ibid.) She alleges that the department essentially gave her the title of FTO but denied her the economic benefits that derived therefrom, including a 5% pay increase stipend during the time an FTO is engaged with a trainee and increased chances for advancement within the department. (/bid.) In 2015 and 2016, Plaintiff was regularly offered less overtime than white heterosexual officers who were friendly with Corporal Jensen. (FAC {25.) In October 2013, Plaintiff qualified to complete background investigations for the Department and was assigned to complete background checks by now Retired Corporal Darryl Johnson. (FAC {25.) In December 2016, Corporal Johnson retired and Corporal Jensen and Sergeant Devee assumed the operation of the training center. (/bid.) Plaintiff allegedly 9 Notice of Demurrer and Demurrer To Plaintiff’s First Amended Complaint 8837406.2 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 complained to Sergeant Hess and Corporal Jensen in February 2017 that she was no longer being assigned background checks. (/bid.) Plaintiff alleges that she was told that her prior background checks contained multiple errors, but was not provided the opportunity to review the deficiencies. (Ibid.) The reduction caused Plaintiff to sustain a monetary loss because each completed background check pays the performing officer approximately $1,500 to $2,000. (/bid.) Plaintiff lodged a complaint in February 2017 with Police Chief Caparo regarding the perceived discrimination she was facing. (FAC 28.) On March 6, 2017, Plaintiff met with Sergeant Neaderbaomer and Sergeant Ramos to discuss a complaint lodged against Plaintiff a year prior by Corporal Aguiar for false arrest and discourteous and disrespectful treatment of a member of the department. (FAC 29.) At the end of the conversation, the topic changed to Plaintiff’s February 2017 complaint to Chief Caparo and Plaintiff was asked to detail her complaint. (/bid.) She did and Sergeant Neaderbaomer asked Plaintiff “What are you?” and also commented: “I didn’t know you were this ‘way’ (referring to Plaintiff’s sexual orientation).” (Ibid.) On March 8, 2017, Plaintiff claims that in retaliation for her complaint, the previous false arrest/disrespectful treatment complaint lodged against her was amended to include new claims, including failure to disclose or misrepresent material facts, or making false or misleading statements. (FAC {29.) Plaintiff was ultimately cleared of these charges, with the exception of a Letter of Counseling for failing to activate her MAYV recorder during the call for service. (Ibid.) In April 2017, Plaintiff responded to an indecent exposure call which resulted in a citizen’s arrest. (FAC 31.) Three days later, Sergeant O’Malley notified Plaintiff that she was being reprimanded for failing to submit a Citizen’s Arrest form, which Plaintiff alleges was a common mistake made by other officers who are reminded to obtain the form instead of formally reprimanded. (/bid.) The officer who responded to the call with Plaintiff was Corporal Aguiar, the officer who ultimately lodged the complaint against Plaintiff. (/bid.) In October 2017, an outside investigator hired by the City to investigate Plaintiffs complaints rejected her claims. (FAC 30.) On November 6, 2016, Plaintiff filed a Complaint with DFEH. (FAC | 14.) 10 Notice of Demurrer and Demurrer To Plaintiff’s First Amended Complaint 8837406.2 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 III. PROCEDURAL HISTORY Plaintiff filed her original Complaint on March 1, 2018. After efforts to meet and confer were unsuccessful, the City filed a Demurrer to the Complaint. This Court sustained the demurrer with leave to amend. Plaintiff filed a First Amended Complaint on February 22, 2019. It contains the same causes of action as the original Complaint. On March 20, 2019, counsel for the City sent a letter to Plaintiff’s counsel stating that the City intended to move to strike certain allegations in the FAC and intended to demurrer to all of the causes of action, identifying the grounds for both motions. (Atkinson Decl. | 3, Exhibit A.) Counsel for the City and Plaintiff thereafter had a conference call to further meet and confer on March 26, 2019. (Atkinson Decl. {5.) The parties were unable to reach an agreement for resolving the issues. (Atkinson Decl. 5.) IV. STANDARD OF REVIEW A party against whom a complaint has been filed may object, by demurrer, where “[t]he pleading does not state facts sufficient to constitute a cause of action.” (Code Civ. Proc., § 430.10(e).) A demurrer tests the legal sufficiency of a complaint. (Hernandez v. City of Pomona (1996) 49 Cal.App.4th 1492, 1497.) In testing the sufficiency of the complaint, all properly pled material facts are deemed to be true. (Balikov v. Southern California Gas Co. (2001) 94 Cal.App.4th 816, 819.) Contentions, deductions, or conclusions of fact or law set forth in a complaint are not considered. (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126.) A demurrer lies if the grounds on which it is based appear on the face of the complaint or from a matter of which the court is required to or may take judicial notice. (Brosterhous v. State Bar (1995) 12 Cal.4th 315, 325.) In reviewing the sufficiency of a complaint, courts “give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.” (Evans v. City of Berkeley (2006) 38 Cal.4th 1, 6.) A demurrer must be sustained without leave to amend if the complaint false to state facts sufficient to constitute a cause of action and there is no reasonably possibility that the defect can 11 Notice of Demurrer and Demurrer To Plaintiff’s First Amended Complaint 8837406.2 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 be cured by amendment. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “The burden of proving such reasonable possibility is squarely on the plaintiff.” (Ibid.) Leave to amend should not be granted where “amendment would be futile.” (Newell v. State Farm General Ins. Co. (2004) 118 Cal.App.4th 1094, 1100.) 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 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. (2005) 36 Cal.4th 1028, 1042, emphasis added.) An “adverse employment action,” which is a critical component of a retaliation claim, requires a “substantial adverse change in the terms and conditions of the plaintiff’s employment.” (Holmes v. Petrovich Development Co., LLC (2011) 191 Cal. App.4th 1047, 1063.) To be actionable, an adverse employment action must materially affect the terms, 12 Notice of Demurrer and Demurrer To Plaintiff’s First Amended Complaint 8837406.2 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 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. (Id. at p. 1053.) In Malais v. Los Angeles City Fire Dept. (2007) 150 Cal. App.4th 350, 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., supra, 150 Cal.App.4th at p. 358.) The court noted that not every change in the conditions of employment constitutes an adverse employment action. (Id. 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.) In McRae v. Department of Corrections & Rehabilitation (2006) 142 Cal. App.4th 377, the Court of Appeal held that the plaintiff’s transfer to what plaintiff alleged was “one of the worst facilities in the system,” which required her to remain on-call for a full week at a time and respond to night calls, was not an adverse employment action because it did not entail a demotion, reduction in pay, loss of benefits, change in status, less distinguished title, or a significant change in job responsibilities, work hours, or commute time. (McRae v. Department of Corrections & Rehabilitation, supra, 142 Cal.App.4th at pp. 393-397.) Moreover, being subject to an internal investigation, irrespective of the reasons for its initiation, does not constitute an adverse employment action. (Id. at p. 392.) 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 q 19.) 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.”]) 13 Notice of Demurrer and Demurrer To Plaintiff’s First Amended Complaint 8837406.2 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 Plaintiff also 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 constitute 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, supra, 142 Cal.App.4th at p. 393.) Indeed, the allegations center on discretionary collateral duties that do not amount to adverse employment actions. Although Plaintiff is displeased by these actions, they are not material changes in the terms of her employment and are therefore not adverse employment actions under McRae. Based on the foregoing, Plaintiff’s first and second causes of action (discrimination based on gender and sexual orientation) and her fifth and sixth causes of action (retaliation based on gender, sexual orientation and engaging in protected activity) cannot survive demurrer. 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 (1996) 46 Cal.App.4th 55 explained: [TThe 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-assienment 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 14 Notice of Demurrer and Demurrer To Plaintiff’s First Amended Complaint 8837406.2 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 harassment and discrimination in the FEHA. (Janken v. GM Hughes Electronics, supra, 46 Cal.App.4th at pp. 64-65.) This language was quoted by the California Supreme Court in Reno v. Baird (1998) 18 Cal.4th 640, 646-47 [explaining that job or project assignments do not come within the meaning of harassment]. Plaintiff has alleged precisely the types of management actions and personnel decisions that cannot form the basis of a harassment cause of action. She 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 qq 24- 25.) Plaintiff further 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. Plaintiff also alleges that a complaint was brought against her, was then amended to add a new cause of action, and that she was ultimately cleared of the charges with the exception of a Letter of Counseling. (FAC 29.) However, this reprimand does not amount to harassment. (See Jumaane v. City of Los Angeles (2015) 241 Cal.App.4th 1390, 1407 [finding a disciplinary suspension does not constitute harassment under FEHA as a matter of law].) Based on the foregoing, Plaintiff’s third and fourth causes of action cannot survive demurrer. C. PLAINTIFF’S CLAIM FOR FAILURE TO PREVENT DISCRIMINATION, HARASSMENT AND RETALIATION FAIL BECAUSE THE UNDERLYING CLAIMS FAIL Plaintiff’s seventh and final cause of action alleges the City failed to prevent discrimination, harassment and retaliation. The City concedes 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). 15 Notice of Demurrer and Demurrer To Plaintiff’s First Amended Complaint 8837406.2 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 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 therefore 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].) V. CONCLUSION For the foregoing reasons, the City respectfully requests this Court sustain its Demurrer without leave to amend. Dated: March 29, 2019 LIEBERT CASSIDY WHITMORE /s/ Megan Atkinson By: Mark H. Meyerhoff Joung H. Yim Megan Atkinson Attorneys for Defendants CITY OF POMONA 16 Notice of Demurrer and Demurrer To Plaintiff’s First Amended Complaint 8837406.2 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 NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT 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. [] (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. 17 Proof of Service 8837406.2 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 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 18 Proof of Service 8837406.2 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.