Reply City of Pomonas Reply To Plaintiff Ruth Flores Opposition To Citys Demurrer

Reply

Cal. Super. - 2nd Dist.July 24, 2018

Electronically FILED by Spperior Court of California, County of Los Angeles on 01/29/2019 03:04 PM Sherri R. Carter, Executive Officer/Clerk of Court, by E. Galicia,Deputy Clerk 1 || Mark H. Meyerhoff, Bar No. 180414 mmeyerhoff @lcwlegal.com 2 || Joung H. Yim, Bar No. 216136 jyim@Icwlegal.com 3 || Ashley N. Bobo, Bar No. 312714 abobo@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 Defendant CITY OF POMONA and MICHAEL 8 || NEADERBAOMER 9 10 SUPERIOR COURT OF THE STATE OF CALIFORNIA 11 COUNTY OF LOS ANGELES 5 < . 12 || RUTH FLORES, an individual, Case No.: BC700151 z S 3 a 13 Plaintiff, [ASSIGNED FOR ALL PURPOSES TO HON. £35 £ ELAINE LU, DEPT. 26] x25 14 v. 23 p < Complaint Filed: March 1, 2018 $£&s 15|| CITY OF POMONA a public entity, £85 2 MICHAEL NEADERBAOMER, an DEFENDANT CITY OF POMONA’S REPLY = & = 8 16|| individual, and DOES 1 through 10, TO PLAINTIFF RUTH FLORES’ = inclusive, OPPOSITION TO CITY’S DEMURRER © 17 Defendant. Reservation ID: 180912348252 18 Date: February 5, 2019 Time: 8:30 a.m. 19 Dept.: 26 20 (*Exempt from filing fees pursuant to Gov. Code, § 6103.) 21 22 23 24 25 26 27 28 1 Defendant City of Pomona’s Reply to Plaintiff Ruth Flores’s Opposition to City’s Demurrer 8781675.4 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 Oo 0 NN A N Un kA W N = N N N N N N N N N N mm mm e m p m e m e m p m p m em pe 0 NN A N Un BA A W N = O LO N N N N R W = O L INTRODUCTION IL. ARGUMENT A. II. CONCLUSION TABLE OF CONTENTS DEFENDANT’S STATUTE OF LIMITATIONS ARGUMENT IS PROPERLY PLED FOR PURPOSES OF DEMURRER ................cc........ THE “CONTINUING VIOLATION” DOCTRINE DOES NOT I. The Alleged Acts Against Plaintiff Did Not Occur with Ras Eiala] 6: Pre CITE wusssms esses emsmsss sss sams esas 2. The Alleged Discriminatory Conduct Occurring Outside the Statutory Period Achieved A Degree Of Permanence.................... PLAINTIFF DOES NOT CITE TO SPECIFIC FACTS SUFFICIENT TO DEMONSTRATE ADVERSE EMPLOYMENT ACTIONS TO ESTABLISH DISCRIMINATION OR RETA TEA TINNY sspears 5 i a SRA PLAINTIFF STILL DOES NOT STATE FACTS SUFFICIENT TO STATE A CAUSE OF ACTION FOR HARASSMENT..................... PLAINTIFF DID NOT SUFFICIENTLY PLEAD HER CAUSE OF ACTION FOR “FAILURE TO PREVENT” DISCRIMINATION, HARASSMENT AND RETALIATION................ 2 Defendant City of Pomona’s Reply to Plaintiff Ruth Flores’s Opposition to City’s Demurrer 8781675.4 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 Oo 0 NN A N Un kA W N = N N N N N N N N N N mm mm e m p m e m e m p m p m em pe 0 NN A N Un BA A W N = O LO N N N N R W = O MEMORANDUM OF POINTS AND AUTHORITES I. INTRODUCTION Plaintiff’s Opposition to Defendant’s Demurrer to the Complaint (“Opposition”) is unpersuasive and demurrer should be sustained. First, the “continuing violation doctrine” cited by Plaintiff does not apply here because the alleged Fair Employment and Housing Act (“FEHA”) violations did not occur with reasonable frequency and because the alleged acts reached a degree of permanence which cuts off the time period for which Plaintiff can lodge legitimate complaints against Defendant. Second, each one of Plaintiff’s causes of action - including her purported timely claims - fail to state facts sufficient to constitute a cause of action for discrimination, harassment or retaliation under FEHA. Plaintiff failed to allege sufficient facts to demonstrate any adverse employment actions needed to support discrimination and retaliation. She has also failed to allege sufficient facts to state a cause of action for harassment based on personnel decisions. For these reasons, the Court should sustain Defendant’s Demurrer to Plaintiff’s Complaint. II. ARGUMENT A. DEFENDANT’S STATUTE OF LIMITATIONS ARGUMENT IS PROPERLY PLED FOR PURPOSES OF DEMURRER In the Opposition, Plaintiff asserts that, “[t]he City's argument that all of Plaintiff’s causes of action are barred by the statute of limitations is unfounded and unsupported. The City argues that Plaintiff’s Complaint seeks recovery for alleged injuries that occurred ‘before November 6, 2016.” Defendant cherry picks facts from the Complaint, ignoring certain allegations that defy its argument. Specifically, the Complaint alleges adverse employment actions (see 25-31 of Plaintiff’s Complaint) within the applicable recovery periods (i.e. after November 16, 2016).” (Opp., 2:4-10.) However, Plaintiff misrepresents Defendant’s proper assertion of the statute of limitations as a grounds for demurrer to her Complaint. (Code Civ. Pro. §430.10(f); see, Saltier v. Pierce Bros Mortuaries (1978) 81 Cal.App.3d 292, 300; Iverson, Yoakum, Papiano & Hatch v. Berwald (1999) 76 Cal. App.4™ 990, 995; Vaca v. Wachovia Mortgage Corp. (2011) 198 Cal. App.4™ 737, 3 Defendant City of Pomona’s Reply to Plaintiff Ruth Flores’s Opposition to City’s Demurrer 8781675.4 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 Oo 0 NN A N Un kA W N = N N N N N N N N N N mm mm e m p m e m e m p m p m em pe 0 NN A N Un BA A W N = O LO N N N N R W = O 746 citing Hightower v. Roman Catholic Bishop of Sacramento (2006) 142 Cal.App.4th 759, 765 [“When a ground for objection to a complaint, such as the statute of limitations, appears on its face or from matters of which the court may or must take judicial notice, a demurrer on that ground is proper.”]) Defendant outlined allegations barred under the statute of limitations. The Complaint on its face reveals that the statute of limitations has run as to most of Plaintiff’s claims.! All acts committed prior to November 6, 2016 should be barred. B. THE “CONTINUING VIOLATION” DOCTRINE DOES NOT APPLY Plaintiff’s claims which arise from incidents that occurred more than one year prior to the date of filing the DFEH charge must be barred. (Gov. Code §12960(d).) Thus, any claims pre- dating November 6, 2016 should not be considered by this Court. Plaintiff asserts in the Opposition that “the Continuing Violation Doctrine may find the City liable for the adverse actions that pre-dated November 6, 2016.” (Opp., 2:11-13.) However, this doctrine only applies when all three of the following elements are alleged: (1) the discriminatory acts predating the statutory period must be sufficiently similar in kind to those within the statutory period; (2) the acts must have occurred with reasonable frequency; and (3) the discriminatory acts must not have acquired a degree of permanence. (Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, 823.) The Complaint fails to satisfy the second and third elements as discussed below. 1. The Alleged Acts Against Plaintiff Did Not Occur with Reasonable Frequency Plaintiff has failed to allege that the wrongful acts occurred with reasonable frequency ! As further discussed below, even Plaintiffs timely allegations fail to state sufficient facts to constitute causes of action for discrimination, retaliation or harassment. With respect to Plaintiff’s discrimination and retaliation claims, Plaintiff has not sufficiently alleged she suffered any adverse action. Plaintiff alleges that she was not assigned a new trainee and was assigned to “left over trainees whose assigned FTO was promoted or on vacation” (Compl. 424, 26, 30); was not assigned background checks after she was told that her previous background checks contained multiple errors (Compl. 25, 26); was a subject in an internal affairs investigation (Compl. 27); and received a reprimand for failing to submit a Citizen’s Arrest form (Compl. J29.). While Plaintiff is displeased by these actions, they are not substantial or material and thus, not adverse employment actions. (McRae v. Department of Corrections and Rehabilitation (2006) 142 Cal.App.4th 377.) With respect to Plaintiff’s sole remaining harassment claim, Plaintiff claims that during a meeting, Sergeant Neaderbaomer leaned back in his chair and asked Plaintiff “What are you?” and said “I didn’t know you were this way.” (Compl. 427.) While Plaintiff alleges that this “way” referred to Plaintiff’s sexual orientation, she does not plead any facts supporting this conclusion. (Compl. 427.) 4 Defendant City of Pomona’s Reply to Plaintiff Ruth Flores’s Opposition to City’s Demurrer 8781675.4 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 Oo 0 NN A N Un kA W N = N N N N N N N N N N mm mm e m p m e m e m p m p m em pe 0 NN A N Un BA A W N = O LO N N N N R W = O over a ten (10) year span of time. The alleged instances of unlawful conduct must be sufficiently continuous in time with each other and with the timely act in order to be considered part of a continuing violation. (See Quinn v. Green Tree Credit Corp. (2d Cir.1998) 159 F.3d 759, 766 (holding that isolated acts break the continuum of discrimination); see also, Annis v. County of Westchester (2nd Cir.1998) 136 F.3d 239, 246 (discrimination allegedly suffered before and after a six-year gap “cannot be joined as a ‘continuing violation”); and Selan v. Kiley (7th Cir.1992) 969 F.2d 560, 566-567 (two-year gap between discriminatory events “negates the contention that the acts were continuous or connected”). Here, Plaintiff alleges that the FEHA violations began in 2007. (Compl. q19.) The City acted swiftly at that time and disciplined the offending officer. (/d.) Plaintiff did not allege any other FEHA violations until three years later in 2010. (Compl. {21.) Then Plaintiff did not allege any FEHA violations until 2013, after another three years had passed. (Compl. 22.) Such gaps in Plaintiff’s allegations are emblematic of her claims against the City. At any time throughout the few and far between allegations, Plaintiff should have filed a DFEH charge and lawsuit if she felt she was subject to FEHA violations. Instead, Plaintiff chose not to file a DFEH complaint until at least ten (10) years after the initial instance of alleged mistreatment. Plaintiff alleges the following incidents occurred prior to November 2016: (1) one incident in 2007 that the City addressed immediately (Compl. 419); (2) a comment by officers in 2010 to Plaintiff’s father, which was not witnessed by or directed at Plaintiff (Compl. 21); (3) an incident in 2013, where Plaintiff was not selected for a position (Compl. 422); (4) a comment by Officer Chad Jensen and Sergeant Devee in 2014 made to a police recruit, that was not witnessed by or directed at Plaintiff (Compl 423); and (5) Plaintiff not receiving a Field Training Officer (“FTO”) trainee in 2015 (Compl. 24). Plaintiff’s allegations “look much more like a collection of isolated employment decisions” than “alleged adverse actions as a continuing course of conduct.” (Cucuzza v. City of Santa Clara (2002) 104 Cal.App.4th 1031, 1042.) All of these 2 Because FEHA is considered a counterpart of the federal antidiscrimination statute (42 U.S.C. § 2000e, et seq.), federal decisions construing the latter may be relied on when interpreting FEHA. (Richards, supra, 26 Cal.4th at 812.) 5 Defendant City of Pomona’s Reply to Plaintiff Ruth Flores’s Opposition to City’s Demurrer 8781675.4 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 Oo 0 NN A N Un kA W N = N N N N N N N N N N mm mm e m p m e m e m p m p m em pe 0 NN A N Un BA A W N = O LO N N N N R W = O alleged acts are sufficiently isolated in time, both from each other, and at least from the timely allegations, as to break the asserted continuum of discrimination. 2. The Alleged Discriminatory Conduct Occurring Outside the Statutory Period Achieved A Degree Of Permanence As to the third element of the Richards test, the alleged discriminatory acts must not have reached a degree of permanence. (Richards, supra, 26 Cal.4th at 823). In Cucuzza, the appellate court discussed the elements of the Richards test and explained that “permanence” should be understood to mean “that an employer’s statements and actions make clear to a reasonable employee that any further efforts at informal conciliation to...end harassment will be futile.” (Cucuzza, supra, 104 Cal. App.4th at 1041-1042). Where, as here, discriminatory conduct consists of failure to promote, or failure to assign an employee to a new position, a degree of permanence is achieved once someone else is selected for the assignment/promotion. The United States Supreme Court has held that “[d]iscrete acts such as termination, failure to promote, denial of transfer, or refusal to hire” are “separate actionable unlawful employment practices” that are not subject to the continuing violation doctrine. (National R.R. Passenger Corp. v. Morgan (2002) 536 U.S. 101, 114 (“Morgan™.) Though the employee in Morgan claimed that he suffered from numerous discriminatory and retaliatory acts during his employment, the Supreme Court held that “only incidents that took place within the timely filing period are actionable.” (Ibid.) Similarly, in Narin v. Lower Merion School Dist. (E.D.Pa. 1998) 24 F.Supp.2d 465, 473, a teacher who was not hired for any of the approximately 10 positions for which she applied over the course of a year and a half alleged age discrimination against the school district. Narin rejected the plaintiff's attempt to rely on the continuing violations theory to bring some of the employment decisions before the court, finding that “each of the acts of discrimination as alleged in Plaintiff's complaint more closely resemble isolated employment decisions.” (Id.) Additionally, Narin stated that each time the plaintiff learned she had not been hired for a particular position, “'the act [had] the degree of permanence which should trigger an employee's awareness of and duty to assert [his] or her rights.” (1d.) 1" 6 Defendant City of Pomona’s Reply to Plaintiff Ruth Flores’s Opposition to City’s Demurrer 8781675.4 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 Oo 0 NN A N Un kA W N = N N N N N N N N N N mm mm e m p m e m e m p m p m em pe 0 NN A N Un BA A W N = O LO N N N N R W = O The holdings in Morgan and Narin have been necessarily adopted as precedent by California courts. (Richards, supra, 26 Cal.4th at 812.) Moreover, in Morgan v. Regents (2000) 88 Cal. App. 4th 56, the plaintiff, who was previously laid off, applied for some 32 jobs between 1995 and 1996. He was hired for none of them. He complained that the University made a series of decisions not to rehire him but, in reality, “he challenges a series of decisions made by different decision-makers . . . regarding positions with varying job requirements.” (/bid.) The appellate court also held that “each time [plaintiff] was informed he was not being hired for a position to which he had applied, he was, or should have been, aware this action might be contrary to his preferential rehire rights.” (Id. at 67.) Here, each of the alleged discrete discriminatory acts acquired a degree of permanence, confirming that the continuing violation doctrine does not apply. (Richards, supra, 26 Cal.4th at 823.) That is, each time that the City notified Plaintiff that she was not selected for promotion or special assignment, Plaintiff was on notice that further efforts to end the alleged discrimination would be in vain. (/bid.) Each of the alleged discrete acts gave rise to a ripe claim of alleged discrimination that was “actionable standing alone.” (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1058.) The conduct that allegedly occurred were discrete acts of failure to promote/assign and are not subject to the continuing violation doctrine as a matter of law. Plaintiff alleges that in 2013, she was not selected as an Explorer Advisor in the Training and Recruitment office. (Compl. 22). In 2015, Plaintiff alleges she did not receive a FTO trainee. (Compl. 24). To allow Plaintiff to raise these claims now would render the statute of limitations meaningless. (Morgan v. Regents of University of Cal. (2000) 88 Cal.App.4th 52, (“the continuing violation doctrine ‘is premised on the equitable notion that the statute of limitations should not begin to run until a reasonable person would be aware that his or her rights have been violated.”” [Emphasis added]) citing Bullington v. United Air Lines, Inc. (10th Cir. 1999) 186 F.3d 1301, 1311; See Govia v. Century 21, Inc., (S.D.N.Y.2001) 140 F.Supp.2d 323, 325 (declining to apply the continuing violation doctrine where plaintiff was on notice of the repeated failures to promote because it “would subvert the underlying purpose of the time limit, which is to ensure expedition in the filing and handling of claims of discrimination”) citing Love v. Pullman 7 Defendant City of Pomona’s Reply to Plaintiff Ruth Flores’s Opposition to City’s Demurrer 8781675.4 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 Oo 0 NN A N Un kA W N = N N N N N N N N N N mm mm e m p m e m e m p m p m em pe 0 NN A N Un BA A W N = O LO N N N N R W = O Co. (1972) 404 U.S. 522, 526.) Plaintiff was able to identify with certainty when harm had occurred or had risen to a level sufficient to warrant action. (Richards, supra, 26 Cal.4th at 820-821.) Accordingly, the continuing violation doctrine does not apply to extend the one-year limitations period for Plaintiff’s FEHA claims. Therefore, the alleged wrongful acts which occurred prior to November 6, 2016 should not be considered by this Court. GC. PLAINTIFF DOES NOT CITE TO SPECIFIC FACTS SUFFICIENT TO DEMONSTRATE ADVERSE EMPLOYMENT ACTIONS TO ESTABLISH DISCRIMINATION OR RETALIATION As already explained in the demurrer, Plaintiff’s allegations are not actionable adverse employment actions. In the Opposition, Plaintiff attempts to argue that the basis of a discrimination or retaliation claim “is not limited to adverse employment actions that impose an economic detriment or inflict a tangible psychological injury upon an employee.” (Opp., 7:12- 13.) Plaintiff cites to Harris vs. Forklift Systems, Inc. (1993) 510 U.S. 17 to stand for the proposition that “[a] discriminatorily abusive work environment, even one that does not seriously affect employees’ psychological well-being, can often detract from employees’ job performance, discourage employees from remaining on the job, or keep them from advancing in their careers.” (Opp., 7:10-17.) While Defendant agrees that “economic detriment” or “inflict[ion] of a tangible psychological injury” are not the sole bases of an adverse employment action, “[a] change that is merely contrary to the employee’s interests or not to the employee’s liking is insufficient.” (Akers v. County of San Diego (2002) 95 Cal.App.4th 1441, 1455.) The action must “materially affect the terms, conditions, or privileges of employment.” (Yanowitz v. L'Oreal USA, Inc. 2005 36 Cal.4th 1028, 1054 (“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”); Wilson v. Murillo (2008) 163 Cal. App.4th 1124, 1135 (shunning does not constitute an adverse action); Akers v. County of San Diego (2002) 95 Cal.App.4th 1441, 1457 (oral or written criticism of an employee does not meet the definition of 8 Defendant City of Pomona’s Reply to Plaintiff Ruth Flores’s Opposition to City’s Demurrer 8781675.4 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 Oo 0 NN A N Un kA W N = N N N N N N N N N N mm mm e m p m e m e m p m p m em pe 0 NN A N Un BA A W N = O LO N N N N R W = O an adverse action under the FEHA); McRae v. Department of Corrections and Rehabilitation (2006) 142 Cal.App.4th 377, 386-387 (transfer to “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).) The Complaint is devoid of facts that Plaintiff’s performance was impacted or that her prospects for advancement or promotion were impaired. While Plaintiff not receiving an FTO trainee or continuing to conduct background checks may not be to Plaintiff’s liking, it cannot be said that the terms and conditions of her employment have been materially affected under Yanowitz. Moreover, Plaintiff clearly has not been discouraged from remaining on the job, as she is still employed in the Department to this day. D. PLAINTIFF STILL DOES NOT STATE FACTS SUFFICIENT TO STATE A CAUSE OF ACTION FOR HARASSMENT While Plaintiff attempts to cite to Senate Bill 1300, California Government Code section 12923, as a signal that the court should apply a different legal standard, Plaintiff cites no authority to support the notion that a statute applies retroactively. Indeed, Plaintiff’s assertion ignores the well settled presumption against retroactive legislation that is deeply rooted in our jurisprudence. (McClug v. Employment Dev. Dep’t (2004) 34 Cal.4th 467, 475 [A statute should “be applied retroactively only if it contains express language of retroactivity or if other sources provide a clear and unavoidable implication that the legislature intended retroactive application.”]; see also, Myers v. Phillip Morris Companies, Inc. (2002) 28 Cal.4th 828, 840; Evangelatos v. Superior Court (1998) 44 Cal.3d 1188, 1206; Landgrafv. Usi Film Prods. (1994) 511 U.S. 255, 265). Had the Legislature intended the statute to apply retroactively, it easily could have provided so. Nonetheless, even under the standard of Section 12923, Plaintiff has not demonstrated that she was subject to harassment. Harassment does not include personnel decisions. (See Reno v. Baird (1998) 18 Cal.4th 640, 645; Cofer v. Parker-Hannifin Corp. (C.D. Cal. 2016) 194 F. Supp. 3d 1014, 1019.) “Making a personnel decision is conduct of a type fundamentally different from the type of conduct that constitutes harassment.” (/d.) Thus, all of Plaintiff’s allegations for failure to promote or assign cannot be considered harassment. (Compl. q24, 25, 26.) Even 9 Defendant City of Pomona’s Reply to Plaintiff Ruth Flores’s Opposition to City’s Demurrer 8781675.4 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 Oo 0 NN A N Un kA W N = N N N N N N N N N N mm mm e m p m e m e m p m p m em pe 0 NN A N Un BA A W N = O LO N N N N R W = O Plaintiffs allegation surrounding her receiving a reprimand for failure to follow proper Department procedures, may not be considered harassment. (See Jumaane v. City of Los Angeles (2015) 241 Cal. App.4" 1390, 1407, if it is not harassment to suspend an employee, then it is not harassment to reprimand an employee.) Plaintiff also cannot demonstrate that the alleged harassing conduct has unreasonably interfered with her work performance or created an intimidating, hostile, or offensive working environment. (Gov. Code §12923 (b).) Plaintiff has not alleged she witnessed or heard some of the alleged comments, and as such, it cannot form the basis of a harassment claim since it did not make Plaintiff’s work environment hostile. (See Lyle v. Warner Bros. Television Productions, 38 Cal.4th 264, 285 (conduct not personally witnessed by a plaintiff is inadmissible to support a hostile work environment claim as the incidents involving others not witnessed by plaintiff cannot affect a plaintiff’s perception of the hostility of the work environment).) Taking all of this into consideration, only one of Plaintiff's allegations of harassment arguably remains: Plaintiff alleges that during a meeting with Sergeant Neaderbaomer and Sergeant Ramos, Neaderbaomer leaned back in his chair and asked Plaintiff “What are you?” and said “I didn’t know you were this way.” (Compl. J27.) While Plaintiff alleges that this “way” referred to Plaintiff’s sexual orientation, she does not plead any facts supporting this conclusion. (Compl. 427.) E. PLAINTIFF DID NOT SUFFICIENTLY PLEAD HER CAUSE OF ACTION FOR “FAILURE TO PREVENT” DISCRIMINATION, HARASSMENT AND RETALIATION Plaintiff has no cause of action for a failure to prevent unlawful harassment or retaliation, unless actionable misconduct occurred. FEHA does not create a stand-alone tort, and therefore an employee has no cause of action, for a failure to prevent unlawful discrimination, harassment, or retaliation unless actionable misconduct occurred. (Dickson v. Burke Williams, Inc. (2016) 234 Cal.App.4th 1307, 1315-1317 (citing Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th 280 and Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986).) Even the case that Plaintiff cites to in her opposition, expressly states that the law “require[s] findings of 10 Defendant City of Pomona’s Reply to Plaintiff Ruth Flores’s Opposition to City’s Demurrer 8781675.4 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 Oo 0 NN A N Un kA W N = N N N N N N N N N N mm mm e m p m e m e m p m p m em pe 0 NN A N Un BA A W N = O LO N N N N R W = O actual discrimination or harassment before a plaintiff has a successful claim for failure to take reasonable steps to prevent under section 12940(k). (Mayfield v. Trevors Store, Inc. (N.D. Cal., Dec. 6, 2004, No. C-04-1483 MHP) 2004 WL 2806175, at *7 (Emphasis added).) III. CONCLUSION For the foregoing reasons, the City respectfully requests this Court sustain its Demurrer in its entirety. Dated: January 29, 2019 LIEBERT CASSIDY WHITMORE By: /s/Joung H. Yim Mark H. Meyerhoff Joung H. Yim Ashley N. Bobo Attorneys for Defendant CITY OF POMONA and MICHAEL NEADERBAOMER 11 Defendant City of Pomona’s Reply to Plaintiff Ruth Flores’s Opposition to City’s Demurrer 8781675.4 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 Oo 0 NN A N Un kA W N = N N N N N N N N N N mm mm e m p m e m e m p m p m em pe 0 NN A N Un BA A W N = O LO N N N N R W = O 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 January 29, 2019, I served the foregoing document(s) described as DEFENDANT CITY OF POMONA’S REPLY TO PLAINTIFF RUTH FLORES’ OPPOSITION TO CITY’S DEMURRER in the manner checked below on all interested parties in this action addressed as follows: Devon M. Lyon Attorneys for Plaintiff Ruth Flores Jaime Danon 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 Email: j.danon @lyon-legal.com Mark K. Kitabayashi Attorneys for Defendant Michael Eleanor M. Welke Neaderbaomer LOZANO SMITH 515 S. Figueroa Street, Suite 750 Los Angeles, CA 90071 Telephone: (213) 929-1066 Facsimile: (213) 929-1077 Email: MKitabayashi @lozanosmith.com Email: elwelke @lozanosmith.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. 12 Defendant City of Pomona’s Reply to Plaintiff Ruth Flores’s Opposition to City’s Demurrer 8781675.4 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 , 5t h Fl oo r Lo s A n g e l e s , Ca li fo rn ia 9 0 0 4 5 Oo 0 NN A N Un kA W N = N N N N N N N N N N mm mm e m p m e m e m p m p m em pe 0 NN A N Un BA A W N = O LO N N N N R W = O 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 sfung@Ilcwlegal.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 January 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/ Sharon Y. Fung Sharon Y. Fung 13 Defendant City of Pomona’s Reply to Plaintiff Ruth Flores’s Opposition to City’s Demurrer 8781675.4 PO020-143