Jermaine Lafear vs County of Los AngelesDemurrer - without Motion to StrikeCal. Super. - 2nd Dist.August 1, 2018L L P 10 5 ) e ill s, C A 91 36 4 W o o d l a n d Hi ll ep h a c s i m 65 4- 90 00 )8 18 ) 65 4- 90 50 i ) h o n e il e Te l L a w Of fi ce s of H a u s m a n & S o s a 2 0 7 5 0 V e n t u r a Bo ul ev ar d, Su it F © 0 0 d N o o u r B A O w N D R N O N N N N N D N N N M N N F P F FP F FR , FP , F P R , P R E c o ~ N O o o u l B A W w W O N F P O O V U 0 0 N O U U B A W w W N H o O o Defendants. RESERVATION ID: 181108364269 Assigned for All purposes to the Honorable Michelle Williams Court LAW OFFICES OF HAUSMAN & SOSA, LLP Jeffrey M. Hausman, Esq., Bar No. 057251 Exempt from Payment of Filing F ees Sally S. Frontman, Esq. Bar No. 227735 Pursuant to Government Code §6103 20750 Ventura Boulevard, Suite 105 Woodland Hills, CA 91364 Telephone: (818) 654-9000 Facsimile: (818) 654-9050 Attorneys for: Defendant, COUNTY OF LOSANGELES SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF LOSANGELES, CENTRAL DISTRICT JERMAINE LaFEAR, ) CASE NO.BC716332 ) Plaintiff, ) ) NOTICE OF DEMURRER AND ) DEMURRER TO FIRST AMENDED V. ) COMPLAINT |[C.C.P. §430.10]; ) MEMORANDUM OF POINTS AND ) AUTHORITIES IN SUPPORT THEREOF ) COUNTY OF LOS ANGELES; a public) entity; and DOES 1 through 100, Inclusive, ) DATE January 25, 2019 ) TIME: 8:30 a.m. ) DEPT: 74 ) ) ) ) ) ) ) ) TO THE PLAINTIFF AND HISATTORNEY OF RECORD: PLEASE TAKE NOTICE thaton January 25,2019 at 9:00 a.m., in Department 74 of the above located Court located at 111 North Hill Street, L os Angeles, California, the Defendants County of L 0s Angeles, will demurrerto the First Amended Complaint (“FAC”) in accordance with the provision of Code of Civil Procedure §430.10. I] 1 DEMURRER TO FIRST AMENDED COMPLAINT(COLA A-M\LaFear-Z2\Dem FAC) © 0 0 d N o o u r B A O w N D R L L P 10 5 - oO ) e Su it 1 3 6 4 = N o9 65 4- 90 00 = w8 Fa ch mi le (5 18 1 6 54 90 50 T e l e p h o n e B n > oo = W o o d l a n d Hi ll s, C A L a w Of fi ce s of H a u s m a n & S o s a 3 2 0 7 5 0 V e n t u r a B o u l e v a r d N O N N N N N N N NN N N N P = c o ~ N o o u i A W w W N N F P o O O o o o This Demurrer is based upon this Notice, the Demurrer, the Memorandum of Points and Authorities, the Declaration Re M eeting and Conferring in accordance with Code of Civil Procedure §430.41, and such other and further evidence that the Court deems just and proper at the time of hearing. Date: January 2, 2019 LAW OFFICES OF HAUSMAN & SOSA, LLP By: /s/ Sally S. Frontman JEFFREY M. HAUSMAN SALLY S.FRONTMAN Attorney for: Defendant, COUNTY OF LOSANGELES 2 (COLA A-M\LaFear-Z2\Dem FAC) DEMURRER TO FIRST AMENDED COMPLAINT L L P 10 5 s m a n & So sa , le va rd , Su it e C A 91 36 4 6 5 4 - 9 0 0 0 L a w O f f i c e s of H 2 0 7 5 0 V e n t u r a © 0 0 d N o o u r B A O w N D R N O N N N N N D N N N M N N F P F FP F FR , FP , F P R , P R E c o ~ N O o o u l B A W w W O N F P O O V U 0 0 N O U U B A W w W N H o O o DEMURRER TO THE COMPLAINT COMES NOW Defendant, County of Los Angeles, who hereby demurrers to the FirstA mended Complaint as follows: 1. The Defendant demurrersto the First Cause of A ction for “Disability Discrimination” on the basis that the Plaintiff has failed to state facts sufficient to constitute a claim against the responding party. Code of Civil Procedure section 430.10(e). 2. The Defendant demurrers to the Second Cause of A ction for “Harassment” on the basis that the Plaintiff has failed to state facts sufficient to constitute a claim against the responding party. Code of Civil Procedure section 430.10(e). 3. The Defendant demurrers to the Third Cause of Action for “FEHA Retaliation” on the basis that the Plaintiff has failed to state facts sufficient to constitute a claim against the responding party. Code of Civil Procedure section 430.10(e). 4, The Defendant demurrers to the Fourth Cause of A ction for “Failure to Accommodate” on the basis that the Plaintiff has failed to state facts sufficient to constitute a claim against the responding party. Code of Civil Procedure section 430.10(e). 5. The Defendant demurrersto the Fifth Cause of Action for “Failure to Engage in the Interactive Process” on the basis that the Plaintiff has failed to state facts sufficient to constitute a claim against the responding party. Code of Civil Procedure section 430.10(e). 6. The Defendant demurrers to the Sixth Cause of Action for “Failure to Prevent Discrimination, Harassment and Retaliation” on the basis that the Plaintiff has failed to state facts sufficient to constitute a claim against theresponding party. Code of Civil Proceduresection 430.10(e). 7. The Defendant demurrers to the Seventh Cause of Action for “CFRA Retaliation” on the basis that the Plaintiff has failed to state facts sufficient to constitute a claim against the responding party. Code of Civil Procedure section 430.10(e). 8. The Defendant demurrers to the Eighth Cause of Action for “Labor Code 1102.5” on the basis that the Plaintiff has failed to state facts sufficient to constitute a claim against the responding party. Code of Civil Procedure section 430.10(e). I] 3 DEMURRER TO FIRST AMENDED COMPLAINT(COLA A-M\LaFear-Z2\Dem FAC) © 0 0 d N o o u r B A O w N D R L L P 10 5 - oO ) e Su it 1 3 6 4 = N o9 65 4- 90 00 = w8 Fa ch mi le (5 18 1 6 54 90 50 T e l e p h o n e B n > oo = W o o d l a n d Hi ll s, C A L a w Of fi ce s of H a u s m a n & S o s a 3 2 0 7 5 0 V e n t u r a B o u l e v a r d N O N N N N N N N NN N N N P = c o ~ N o o u i A W w W N N F P o O O o o o 9. TheDefendant demurrers to the Ninth Cause of A ction for “Labor Code § 6310.” onthe basis that the plaintiff has failed to state facts sufficient to constitute a claim against the responding party. Code of Civil Procedure section 430.10(e). Date: January 2, 2019 LAW OFFICES OF HAUSMAN & SOSA, LLP By: /s/ Sally S. Frontman JEFFREY M. HAUSMAN SALLY S.FRONTMAN Attorney for: Defendant, COUNTY OF LOSANGELES 4 (COLA A-M\LaFear-Z2\Dem FAC) DEMURRER TO FIRST AMENDED COMPLAINT L L P 10 5 s m a n & So sa , le va rd , Su it e C A 91 36 4 6 5 4 - 9 0 0 0 ) 6 5 4 - 9 0 5 0 L a w O f f i c e s of H 2 0 7 5 0 V e n t u r a © 0 0 d N o o u r B A O w N D R N O N N N N N D N N N M N N F P F FP F FR , FP , F P R , P R E c o ~ N O o o u l B A W w W O N F P O O V U 0 0 N O U U B A W w W N H o O o TABLE OF CONTENTS TABLE OF AUTHORITIESoooii-iv STATUTES AND OTHER AUTHORITIES onVv MEMORANDUM OF POINTSAND AUTHORITIES «o.oo 1 l. INTRODUCTIONoteae1 Il. SUMMARY OF THE FACTSALLEGED IN THE FIRST AMENDED COMPLAINT .. 1 A. Facts Previously Adjudicated inthe County's Favor ........................ 1 B. Denial of a 9/80 Shiftis Not an Adverse Employment Action ................. 3 1. LEGAL ARGUMENTo e5 A. Standard for Demurrer o.oo5 B. L aF ear Failed to Properly Plead Exhaustion of Administrative Remedies and All of HisClaimsareTime-Barred ............ oii... 5 1. LaF ear's Labor Code Claims (Counts 8 and 9) are Time-Barred ......... 5 2. LaFear's FEHA and CFRA Claimsarealso TimeBarred ............... 6 3. The Continuing Violations Doctrine Does Not Apply to Claims Adjudicated... 6 C. Res judicata and Collateral Estoppel Bar the Present Lawsuit ................ 6 D. Summary Judgment is Res judicata as to Any Claim that Could have been Asserted on the Factual Allegations ............ iiiiii 7 E. Res judicata Applies Regardless of the Prior Theory A sserted Pursuantto the Primary Rights Theory Under CaliforniaLlaw .............. cc. coin, 8 F. LaFear’'s Claims Also Fail Because they are Insufficiently Pled ............... 9 1. L aF earFails to State a Claim for Disability Discrimination ........... 10 2 LaF ear Fails to State a Claim for Harassment ....................... 10 3. LaFear's Failed to State a Claim for FEHA Retaliation ................ 11 4 LaF ear Has Failed to State a Claim for Failure to Accommodate . . ...... 12 5 LaFear Has Failed to State a Claim for Failure to Engage in the InteractiveProcess... 12 6. LaF ear Has Failed to State a Claim for Failure to Prevent FEHA Discrimination, Harassment and Retaliation ........................ 13 7. LaFear Has Failed to State a Claim for CFRA Retaliation ............. 13 (COLA A-M\LaFear-Z2\Dem FAC) DEMURRER TO FIRST AMENDED COMPLAINT © 0 0 d N o o u r B A O w N D R L L P 10 5 - oO ) e Su it 1 3 6 4 = N o9 65 4- 90 00 = w8 Fa ch mi le (5 18 1 6 54 90 50 T e l e p h o n e B n > oo = W o o d l a n d Hi ll s, C A L a w Of fi ce s of H a u s m a n & S o s a 3 2 0 7 5 0 V e n t u r a B o u l e v a r d N O N N N N N N N NN N N N P = c o ~ N o o u i A W w W N N F P o O O o o o 8. LaF ear Has Failed to State a Claim for Violation of Lab. Code § 1102.5 ...o t14 9. LaFear Has Failed to Statea Claim for Lab. Code § 6310 ............. 15 IV. CONCLUSIONo sd15 (COLA A-M\LaFear-Z2\Dem FAC) DEMURRER TO FIRST AMENDED COMPLAINT L L P 10 5 ) e ill s, C A 91 36 4 W o o d l a n d Hi ll ep h a c s i m 65 4- 90 00 )8 18 ) 65 4- 90 50 ) h o n e il e Te l L a w Of fi ce s of H a u s m a n & S o s a 2 0 7 5 0 V e n t u r a Bo ul ev ar d, Su it F © 0 0 d N o o u r B A O w N D R N O N N N N N D N N N M N N F P F FP F FR , FP , F P R , P R E c o ~ N O o o u l B A W w W O N F P O O V U 0 0 N O U U B A W w W N H o O o TABLE OF AUTHORITIES Acunav. San Diego Gas & Electric Co. (2013) 217 Cal.App.4th 1402, 1411 ................. 6 Alpha Mech., Heating & Air Conditioning, Inc. v. Travelers Cas. & Sur. Co. of Am. (2005) 133 Cal.App.4th 1319, 3279 Bay Cities Paving & Grading, Inc. v. Lawyers’ Mutual Ins. Co. (1993) 5 Cal.4th 854,860 ...... 8 Boeken v. Philip MorrisUSA, Inc., 48 Cal.4th 788, 797 (2010) ............... ccc... 7,8 Campbell v. Regents of Univ. of Calif. (2005) 35 C4th 311, 329-331 ...................... 15 Claudio v. Regents of the University of California (2005) 134 Cal.App.4th 224,242 .......... 12 Doev. City of Los Angeles (2007) 42 C4th 531,550 ...... cciiienn 9 Featherstone v. Southern California Permanente M edical Group (2017) 10 Cal.App.5th 1150, 1160-66 . . . «ooo vve tet eeee10 Federated Dep't. Stores, Inc. v. Moitie, 452 U.S. 394, 398, 101 S.Ct. 2424, 69 L.EA.2d 103 (1981) . oo8 Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590,604 ................. 5,10 Gelfov, Lockheed Martin Corp (2006) 140 Cal.App.4th 34 at54-62n.22 .................. 13 Germanowksi v. Harris (1st Cir. 2017) 854 F3d 68, 75 .......oot14 Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317,355 ......iii10 Hentzel v. Singer Co. (1982) 138 Cal.App.3d 290,299 ......iii, 15 In re Estate of Dito (2011) 198 Cal.App.4th 791,801 ........... iiiiin 8 Investors Equity Life Holding Co. v. Schmidt (2011) 195 Cal.App.4th 1519, 1533 ............ 6 Jackson v. Hayakawa, 605 F.2d 1121, 1125 n. 3 (9th Cir.1979) ............ iit, 7 Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245,263 ......................... 12,13 Kelly v. Conco Companies (2011) 196 Cal.App.4th 191,202-03 ...............coviinn... 10 Kourtis v. Cameron, 419 F.3d 989, 996 (9th Cir.2005) .........coi in 7 Mokler v. County of Orange (2007) 157 Cal.App.4th 121,138 ..................... 11,12, 14 Nazir v. United Airlines (2009) 178 Cal.App.4th 243,264 . ..........iii, 11 Okoli v. Lockheed Technical Operations Co. (1995) 36 Cal.App.4th 1607, 1613 .............. 6 Peterson v. Highland Music, Inc., 140 F.3d 1313, 1322 (9th Cir.1998) ...................... 9 Raine v. City of Burbank (2006) 135 Cal.App.4th 1215,1218 ......... ccc, 12 Rakestraw v. Cal. Physicians’ Service (2000) 81 Cal.App.4th 39,43 ....................... 5 ii DEMURRER TO FIRST AMENDED COMPLAINT(COLA A-M\LaFear-Z2\Dem FAC) L L P 10 5 ) e ill s, C A 91 36 4 W o o d l a n d Hi ll ep h a c s i m 65 4- 90 00 )8 18 ) 65 4- 90 50 ) h o n e il e Te l L a w Of fi ce s of H a u s m a n & S o s a 2 0 7 5 0 V e n t u r a Bo ul ev ar d, Su it F © 0 0 d N o o u r B A O w N D R N O N N N N N D N N N M N N F P F FP F FR , FP , F P R , P R E c o ~ N O o o u l B A W w W O N F P O O V U 0 0 N O U U B A W w W N H o O o Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, 822-823 ............ iii, 6 Scotch v. Art Institute of California-Orange County, Inc. (2009) 173 Cal. App. 4th 986, 1009-10 . . oo12 Spakes v. Broward County Sheriff's Office (11th Cir. 2011) 631 F3d 1307,1310 ............ 14 Strickland v. Water Works & Sewer Bd. (11th Cir. 2001) 239 F3d 1199, 1206-1207 .......... 14 Thomas v. Department of Corrections (2000) 77 Cal.App.4th 507,510 ..................... 11 Thompson v. City of Monrovia (2010) 186 Cal.App.4th 860,879 ......................... 11 Vandenberg v. Sup. Ct. (1999) 21 Cal.4th 815,828-829 ............iii, 7 Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126 .............cciiiiinnenn.n. 5 iv DEMURRER TO FIRST AMENDED COMPLAINT(COLA A-M\LaFear-Z2\Dem FAC) © 0 0 d N o o u r B A O w N D R L L P 10 5 - oO ) e Su it 1 3 6 4 = N o9 65 4- 90 00 = w8 Fa ch mi le (5 18 1 6 54 90 50 T e l e p h o n e B n > oo = W o o d l a n d Hi ll s, C A L a w Of fi ce s of H a u s m a n & S o s a 3 2 0 7 5 0 V e n t u r a B o u l e v a r d N O N N N N N N N NN N N N P = c o ~ N o o u i A W w W N N F P o O O o o o STATUTES AND OTHER AUTHORITIES California Government Code 812940 ......oiia12,13 California Government Code 812960 ......... cc.iii6 California Government Code8911.2... 14 California Government Code 8911.2 ... 5 California Jury Instructions 2527 (2015) ... cocoiti13 CaliforniaLabor Code§1102.514 CaliforniaLabor Code §6310 .....iii15 V (COLA A-M\LaFear-Z2\Dem FAC) DEMURRER TO FIRST AMENDED COMPLAINT L L P 10 5 s m a n & So sa , le va rd , Su it e C A 91 36 4 6 5 4 - 9 0 0 0 L a w O f f i c e s of H 2 0 7 5 0 V e n t u r a © 0 0 d N o o u r B A O w N D R N O N N N N N D N N N M N N F P F FP F FR , FP , F P R , P R E c o ~ N O o o u l B A W w W O N F P O O V U 0 0 N O U U B A W w W N H o O o MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTORY STATEMENT Plaintiff Jermaine LaF ear (“LaFear”), having lost his previous lawsuit against his employer defendant, County of L os Angeles (“County”), is attempting-by this lawsuit- to relitigate the same claims but under different theories. The law clearly does not permit him to do so. In addition, all stated claims are statutorily time-barred and/or areinsufficiently pled. Attempts to meet and confer over these incurable defects have not been successful. On August 11, 2015, “LaFear” filed an action against County in case number BC590932, alleging discrimination (age, ethnic origin, gender), harassment, and failure to prevent discrimination, harassment and retaliation, in violation of the Fair Employmentand Housing Act (the“FEHA"), based on the same facts and circumstances.! LaF earis currently a County employee and holds the position of Deputy Probation Officer, Il, Field (“DPO 11") with the County of Los Angeles Probation Department (“the Department”). In the present case, most of L aF ear’s factual claims are identical. The parties are also identical and the claims are based on the same facts. Y et, LaF earfailed to file a notice of related cases. Now L aF ear claims he has suffered discrimination based on a medical disability. However, the law does not permita him to re-litigate the same claim dressed up as different theories. LaFear’s previously litigated claims should be dismissed. Moreover, even if LaF ear argues that he has claims which are not time barred or barred by res judicata (which County does not believe he can), those claims utterly fail because of the failure to plead ultimate facts. Accordingly, the County requests that the Court grant its demurrer without leave to amend. 11. SUMMARY OF THE FACTSALLEGED IN THE FIRST AMENDED COMPLAINT A. F acts Previously Adjudicated in the County's F avor L aF ear alleges he began his career with the County as a Group Supervisor Nights (“GSN”) in 1999 and was given the responsibilities of a Deputy Probation Officer! (“DPQ 1”) from the start; in six months he was performing the duties of a DPO II and was working “out of class” for thirteen years. The May 19, 2016 First Amended Complaintin BC590932 and the J anuary 24, 2018 Ruling Granting Summary Judgmentin favor of the County in BC590932 are attached to the County's Request forjudicial Notice (“RJN") as Exhibits 1 and 2, respectively. 1 DEMURRER TO FIRST AMENDED COMPLAINT(COLA A-M\LaFear-Z2\Dem FAC) © 0 0 d N o o u r B A O w N D R L L P 10 5 - oO ) e Su it 1 3 6 4 = N o9 65 4- 90 00 = w8 Fa ch mi le (5 18 1 6 54 90 50 81 T e l e p h o n e ft = = o y Wu » W o o d l a n d Hi ll s, C A L a w Of fi ce s of H a u s m a n & S o s a 3 2 0 7 5 0 V e n t u r a B o u l e v a r d N O N N N N N N N NN N N N P = c o ~ N o o u i A W w W N N F P o O O o o o (FAC, 96.) LaFear claims the County refused to acknowledge his claims of out of class work. (FAC, 97.) LaF ear believed the County did not acknowledge his work due to his African American heritage (FAC, 18.) All of these claims were finally adjudicated in the County's favor. (RJN, Exh. 2.) L aF ear claims he promoted to DPO | after filing many grievances and complaints. (FAC, 19.) In July 2013, when he reported for duty as a DPO I, he claims he was not provided proper safety equipment (FAC, 110) and filed a DFEH complaint in early 2014. (FAC, 911.) He claims he was harassed for two years after filing the DFEH complaint by co-workers Aldaz, Alcatara and D'Avila, who taunted him and said he would be fired; he also claims to have been wrongfully accused of child abuse and was cleared of involvementin the incident and was harassed thereafter. (FAC, 912.) All of these claims were finally adjudicated in the County's favor. (RJN, Exh. 2, p. 12, FN 3.) LaFearfiledacivil lawsuiton August11, 2015, alleging harassment, discrimination retaliation, and failure to prevent the harassment, discrimination and retaliation. (FAC, 913.) He alleges that after filing the lawsuit he suffered verbal insults and fewer breaks by D'Avila. All claims against D'Avila were previously adjudicated. (RJ N, Exh. 2.) In fact, the court's Ruling specifically mentions the exact same claims pled by L aF ear in this case, wherein he claims that he asked for safety equipment and was told “Ok, remind me later” and “we'll getit to you.” RJN 2, p. 9. The Court held that “L aF ear failed to submitadmissible evidence that he was not provided with equipment due to his race (orin retaliation for complaints).” RJN Exh. 2, p. 9. In the present case L aF ear claims he was not permitted to enter his own electronic time. (FAC, 124.) Hedid the samein the prior action, and the court expressly held that the claim is not an adverse employment action. (RJN Exh. 2, p. 9.) L aFear claims hetook CFRA leave in November 2015 and returned in January 2016. (FAC, 99 15, 16.) He claims his shift was changed when he returned and D'A vila antagonized him. (FAC, 917.) L aF ear claims to have taken FMLA/CFRA leave after an “incident” with D"Avila for which no date isalleged. (FAC, 918.) Thisisa significant omission because of the limitations issue. Also, all of his claims of harassment against D'Avila were decided in the County's favor. (RJN, Exh. 2.) LaFear claims he made an internal complaint against D'Avila to the “Board of Equity” and applied for a promotion to DPO Il while on CFRA leave and was promoted in A pril 2016. (FAC, 9919-22.) All events which took place prior to April 2016 were or should have been previously raised and adjudicated 2 (COLA A-M\LaFear-Z2\Dem FAC) DEMURRER TO FIRST AMENDED COMPLAINT L L P 10 5 s m a n & So sa , le va rd , Su it e C A 91 36 4 6 5 4 - 9 0 0 0 L a w O f f i c e s of H 2 0 7 5 0 V e n t u r a © 0 0 d N o o u r B A O w N D R N O N N N N N D N N N M N N F P F FP F FR , FP , F P R , P R E c o ~ N O o o u l B A W w W O N F P O O V U 0 0 N O U U B A W w W N H o O o and are subject to demurrer without leave to amend. L aF ear alleges that after his promotion to DPO Il, he was told the promotion was cancelled and due to his leave, an interactive process meeting was held, and then his promotion was upheld and he was to report to AB109 in Santa Monica. He claims he was denied access to enter his time into the system, was not given a case, and was given a book to read. (FAC, 124.) As held in the prior case, none of these claims constitutes an adverse employment action. B. Denial of a 9/80 Shiftis Not an Adverse EmploymentAction LaFear claimson May 2, 2016, he spoke to supervisor, Michelle Wills (“Wills”) and requested a change to a 9/80 shift to accommodate his recurring medical appointments and he was asked by Wills to put the request in writing and submit it to Director, Kevin Woods (“Woods”). (FAC, 925.) He allegeson May 5, 2016 he spoke to Woods who said he would look into the request. (FAC, 126.) On May 6, 2016, L aF ear claims he tried to submit a request for a shift change on the computer system and was prevented by Wills. Then LaF ear claims Wills made a comment regarding an Interactive Process Meeting (“IPM ") that apparently occurred, though L aF ear failed to include allegations regarding the IPM inthe FAC, and/or whether it was in reference to the request for a shift change. (See FAC 27.) L aF ear then claims that on May 10, 2016 he called Director Francine Jimenez regarding an investigation into his “Board of Equity” complaint against D'Avila. (FAC, 928.) LaF ear alleges that he emailed Director Jimenez on May 11, 2016 about the same complaint against D'A vila (already adjudicated), and received an email in response from Woods notifying L aF ear he had been transferred to the Centinela Area Office. (FAC, 929.) He claims further that he emailed the Director of Personnel complaining of being faced with continuous harassment and the transfer in violation of the agreement reached in the IPM. (FAC, 9 30.) However, LaFear failed to allege what the terms of the IPM agreement were. The allegations are conclusory; no ultimate facts are pled. Therefore it is impossible to know whether there was an adverse employment action from this allegation. L aF earalso fails to allege any facts which would tend to associate his claims with any nexus to any discriminatory animus. He claims that Indira Richards told him, “Y ou got promoted, don’t rock the boat,” nothing more. (FAC, 9 31.) He was allegedly written up for not following the chain of command and contacting the director of Human Resources, and was told that if he continues to do so, 3 DEMURRER TO FIRST AMENDED COMPLAINT(COLA A-M\LaFear-Z2\Dem FAC) © 0 0 d N o o u r B A O w N D R L L P 10 5 - oO ) e Su it 1 3 6 4 = N o9 65 4- 90 00 = w8 Fa ch mi le (5 18 1 6 54 90 50 81 T e l e p h o n e ft = = o y Wu » W o o d l a n d Hi ll s, C A L a w Of fi ce s of H a u s m a n & S o s a 3 2 0 7 5 0 V e n t u r a B o u l e v a r d N O N N N N N N N NN N N N P = c o ~ N o o u i A W w W N N F P o O O o o o his “promotion isin jeopardy,” but he does not allege that any of his promotions were revoked. (FAC, 9 33.) He claims on May 25, 2016, Dana Harper (“Harper”) questioned him about whether he had documents on file regarding his recurring medical appointments. (FAC, § 34.) He claims he was assigned more cases than a “seasoned DPO II” and did not have computer access. (FAC, 1 36.) He claims another DPO II felt he was being set up to fail (FAC, 939) but LaFear was given computer access only a few dayslater, June 6, 2016. (FAC, 941.) LaF ear alleges he was denied a shift change as an accommodation for his regular doctor appointments by Harper (FAC, 942) but LaF ear fails to allege whether or not he was permitted to attend the doctor appointments. He does not claim that the shift change was his only way to attend the doctor visits and he does not claim he was unable to visit his doctor. L aF ear claims hefiled a grievance regarding the denial of the shift change on July 21, 2016 and met with W oods regarding the grievance which was denied. (FAC, 143.) In paragraph 44, LaFear claims the 9/80 shift change was denied for him, but that his supervisors were on that same shift. This claim is meaningless without more, and L aF ear still fails to allege whether he was denied an accommodation to see his doctor. He even alleges that the County gave a business reason for not permitting him to have the 9/80 work schedule, “because training of DPO II officers was required to be conducted M onday through Friday from 8 amto 5 p.m.” (ld.) Finally, LaFear claims Harper questioned him about his personal life and allegedly took something from his desk. (FAC, 9 45.) LaFear claims he reported his belief that he was suffering discrimination on August 15, 2016, and he believes others received proper training and equipment. He claims that he had to handle a “high risk” client without “normal safety equipment” and was overcome with anxiety. (FAC, 149.) He does not claim that the client harmed him in any way. He even claims he suffered an anxiety attack and took FM LA/CFRA leave and received a new job offer from the County stating it would work with his need for accommodations! (FAC 9950-52.) Finally, LaF ear claims he filed a DFEH complaint and received a right to sue notice on December 22, 2017; and he filed a Government Tort claim on M arch 19, 2018 which was rejected on A pril 25, 2018. (FAC 953.) However, he failed to attach either claim to the FA C or allege that he included his FEHA and/or L abor Codeclaimsinthe DFEH or Government Tort Claim, respectively. Accordingly, FEHA claims based 4 (COLA A-M\LaFear-Z2\Dem FAC) DEMURRER TO FIRST AMENDED COMPLAINT © 0 0 d N o o u r B A O w N D R L L P 10 5 - oO ) e Su it 1 3 6 4 = N o9 65 4- 90 00 = w8 Fa ch mi le (5 18 1 6 54 90 50 T e l e p h o n e B n > oo = W o o d l a n d Hi ll s, C A L a w Of fi ce s of H a u s m a n & S o s a 3 2 0 7 5 0 V e n t u r a B o u l e v a r d N O N N N N N N N NN N N N P = c o ~ N o o u i A W w W N N F P o O O o o o on facts occurring prior to December 22, 2016 are time barred, as are all Labor Code violations which are all alleged to have occurred prior to September 19, 2017. Ill. LEGAL ARGUMENT A. Standard for Demurrer A defendant may demur to a complaint where the pleading does not state facts sufficient to constitute a cause of action. Code Civ. Proc, §430.10(e). A demurrertests the legal sufficiency of a complaint, therefore, the plaintiff must show thatthe complaintalleges facts sufficient to establish every element of each cause of action. Rakestraw v. Cal. Physicians’ Service (2000) 81 Cal.A pp.4th 39, 43. W here the complaint fails to do so, the court must sustain the demurrer, and,if itis clear that no cause of action can be stated, the court must deny leave to amend. Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126. The general rule in California is that facts in support of each of the requirements of a statute upon which a cause of action is based “must be specifically pled.” Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 604. B. L aF ear F ailed to Properly Plead E xhaustion ofAdministrative Remedies andAll of His Claims are Time-Barred 1. L aF ear’s L abor Code Claims (Counts 8 and 9) are Time-Barred. Actions against public entities are governed by the California Tort Claims A ct (the “A ct”). Under the A ct, no person may sue a public entity for “money or damages” unless atimely written claim has been presented to, and denied by, the public entity. The claim period for a tort claim is not later than six (6) months after the accrual of the cause of action. Government Code §911.2. LaFear'sGovernment Tort Claim is alleged to have been filed on M arch 19, 2018 and rejected on April 25, 2018. Accordingly, Labor Code violations alleged to have occurred prior to September 19, 2017 are time barred. Thereis not one claim in LaFear’s FAC which occurs on or after September 19, 2017. Accordingly, all of LaFear's Labor Code claims are time barred. M oreover, LaF earfailed to attach his Government Tort Claim to the FA C, nor did he state what claims he alleged therein. (FAC, 153.) Accordingly, LaF ear has not properly pled the filing of a Tort Claim. 2 LaF ear claims a grievance was denied and he met with Director W oods regarding the denial of the shift change on July 21, 2016. (FAC, 143.) 5 (COLA A-M\LaFear-Z2\Dem FAC) DEMURRER TO FIRST AMENDED COMPLAINT © 0 0 d N o o u r B A O w N D R L L P 10 5 - oO ) e Su it 1 3 6 4 = N o9 65 4- 90 00 = w8 Fa ch mi le (5 18 1 6 54 90 50 T e l e p h o n e B n > oo = W o o d l a n d Hi ll s, C A L a w Of fi ce s of H a u s m a n & S o s a 3 2 0 7 5 0 V e n t u r a B o u l e v a r d N O N N N N N N N NN N N N P = c o ~ N o o u i A W w W N N F P o O O o o o 2. LaFear’'sFEHA and CFRA Claims are also Time Barred. “FEHA claims are governed by two statutory deadlines: section 12960 and section 12965.” Acuna v. San Diego Gas & Electric Co. (2013) 217 Cal.App.4th 1402, 1411. Government Code, Section 12960 provides that an employee bringing an FEHA claim must exhaust the administrative remedy by filing an administrative complaint with the Department of Fair Employment and Housing (“DFEH") within one yearafter the alleged unlawful action occurred. Gov. Code, § 12960, subd. (d). See Okoli v. Lockheed Technical Operations Co. (1995) 36 Cal.A pp.4th 1607, 1613. L aF earalleges he filed a DFEH complaint and received a right to sue notice on December 22, 2017. LaFear failed to attach the DFEH complaint to his pleading. Regardless, any FEHA claims alleged to have occurred before December 22, 2016 are time barred. However,all of the facts alleged in the FAC occur prior to December 22, 2016. The claims were also adjudicated in the County's favorin LaFear's prior action. A ccordingly, the FAC is subject to demurrer without leave to amend on two separate basis- either of which result in defeat of these claims on demurrer. 3. The Continuing Violations Doctrine D oes NotApply to Claims Adjudicated. During ameetand confer, L aF ear's counsel claimed the continuing violations doctrine preserves his claims. (Frontman Decl., Exh. 3.) This is clearly inaccurate. The prior actions of the County have been held not to be a violation of the FEHA. It is therefore axiomatic that such conduct cannot be the subject of a “continuing violation.” One cannot asserta continuing violation of conduct which conduct has already been adjudicated to be appropriate and not a violation of FEHA. Accordingly, LaF ear cannot claim that the continuing violations doctrine applies. Also tolling must be specifically alleged inthe FAC, yetit was not. See Investors Equity Life Holding Co. v. Schmidt (2011) 195 Cal.A pp.4th 1519, 1533. Finally, as for the denial of a 9/80 work schedule, the grievance was denied and achieved permanence beforethe limitations period. Richardsv. CH2M Hill, Inc. (2001) 26 Cal.4th 798, 822-823. C. ResJ udicata and Collateral E stoppel Bar the Present L awsuit Simply put, L aF ear cannot claim discrimination and harassment based on age, race, and gender, lose in court, and then file a new claim allege the same harassment, discrimination and retaliation was based on a medical disability. Under California law, the doctrine of res judicata precludes L aFear’s claims from being raised because they were resolved by way of a judgment on the merits in favor of 6 (COLA A-M\LaFear-Z2\Dem FAC) DEMURRER TO FIRST AMENDED COMPLAINT © 0 0 d N o o u r B A O w N D R L L P 10 5 - oO ) e Su it 1 3 6 4 = N o9 65 4- 90 00 = w8 Fa ch mi le (5 18 1 6 54 90 50 T e l e p h o n e B n > oo = W o o d l a n d Hi ll s, C A L a w Of fi ce s of H a u s m a n & S o s a 3 2 0 7 5 0 V e n t u r a B o u l e v a r d N O N N N N N N N NN N N N P = c o ~ N o o u i A W w W N N F P o O O o o o the County in a prior proceeding, case no. BC590932. Vandenberg v. Sup. Ct. (1999) 21 Cal.4th 815, 828-829. In Vandenberg, the California Supreme court explained how a party may be precluded from raising issues or claims adjudicated in a prior action. wi “In its narrowest form, res judicata “precludes parties or their privies from relitigating a cause of action [finally resolved in a prior proceeding].”” [Citations omitted.] But res judicata also includes a broader principle, commonly termed collateral estoppel, under which an issue “‘necessarily decided in [prior] litigation [may be] conclusively determined as [against] the parties [thereto] or their privies ... in a subsequent lawsuit on a different cause of action.”” The Court in Vandenburg further held: Thus, res judicata does not merely bar relitigation of identical claims or causes of action. Instead, in its collateral estoppel aspect, the doctrine may also preclude a party to prior litigation from redisputing issues therein decided against him, even when those issues bear on different claims raised in a later case. ... This means that the loss of a particular dispute against a particular opponent in a particular forum may impose adverse and unforeseeable litigation consequences far beyond the parameters of the original case.” Vandenberg, 21 Cal.4th at 828-29 (emphasis in bold and italic added); See also, Boeken v. Philip Morris USA, Inc., 48 Cal.4th 788, 797 (2010) “Collateral estoppel ... is intended to preserve the integrity of the judicial system, promote judicial economy, and protect litigants from harassment by vexatious litigation. [Citation omitted.]” Vandenburg, supra, 21 Cal.4th at 829. Thetests for applying res judicata (claim preclusion) and collateral estoppel (issue preclusion) are the same: “(1) A claim or issue raised in the present action is identical to a claim or issue litigated in a prior proceeding; (2) the prior proceeding resulted in a final judgment on the merits; and (3) the party against whom the doctrine is being asserted was a party or in privity with a party to the prior proceeding.” Boeken v. Philip Morris USA, Inc. (2010) 48 Cal.4th 788, 797. Here,all three elements aremet: the claims areidentical, the prior proceeding resulted in a final judgment in the County's favor, and the County is again the defendant. D. SummaryJ udgment is ResJ udicata as to Any Claim that Could have been Asserted on the F actual Allegations Summary judgment is a final judgment on the merits for preclusion purposes. See J ackson v. Hayakawa, 605 F.2d 1121, 1125 n. 3 (9th Cir.1979); Kourtis v. Cameron, 419 F.3d 989, 996 (9th Cir.2005). A final judgment on the merits precludes the parties from relitigating issues that were raised, 7 (COLA A-M\LaFear-Z2\Dem FAC) DEMURRER TO FIRST AMENDED COMPLAINT © 0 0 d N o o u r B A O w N D R L L P 10 5 - oO ) e Su it 1 3 6 4 = N o9 65 4- 90 00 = w8 Fa ch mi le (5 18 1 6 54 90 50 T e l e p h o n e B n > oo = W o o d l a n d Hi ll s, C A L a w Of fi ce s of H a u s m a n & S o s a 3 2 0 7 5 0 V e n t u r a B o u l e v a r d N O N N N N N N N NN N N N P = c o ~ N o o u i A W w W N N F P o O O o o o or could have been raised in that action. F ederated Dep't. Stores, Inc. v. Moitie, 452 U.S. 394, 398, 101 S.Ct. 2424,69L.Ed.2d 103 (1981). Summaryjudgment isresjudicata not only to the claim alleged in the complaint, but also as to any other claim that could have been asserted on the basisof the facts presented to the court. Federated Dep't. Stores v. Moitie, 452 U.S. 394, 398, 101 S.Ct. 2424, 2428, 69 L.Ed.2d 103 (1981) (emphasis in bold added). LaFear’s prior judgment acts as a barto the present lawsuit. (RJN, Exh. 2.) The facts alleged in paragraphs 1 through 28 of the FAC are or arise from the same facts or circumstances which form the basis for his prior action. In the instant FAC, LaF ear is attempting to relitigate issues that have already been decided in the Superior Court A ction. (See Section Il, supra, Summary of the Case, and prior FAC and Ruling, RJN Exhs. 1 and 2.) All of these claims are subject to demurrer without leave to amend. E. Res Judicata Applies Regardless of the Prior Theory Asserted Pursuant to the Primary Rights Theory Under California Law Under California law, res judicata describes the preclusive effect of a final judgment on the merits and prevents relitigation of the same cause of action in a second suit between the same parties or parties in privity with them. In re Estate of Dito (2011) 198 Cal.App.4th 791, 801. “Under the doctrine of res judicata, all claims based on the same cause of action must be decided in a single suit; if not broughtinitially, they may not be raised at a later date.” [/d.] To determine whether two proceedings involve identical causes of action for purposes of claim preclusion, California courts have “consistently applied the ‘primary rights' theory.” Boeken v. Philip Morris USA, Inc. (2010) 48 Cal.4th 788, 797-798; Slater v. Blackwood (1975) 15 Cal.3d 791, 795. Under this theory, “[a] cause of action ... arises out of an antecedent primary right and corresponding duty and the delict or breach of such primary right and duty by the person on whom the duty rests. ‘Of these elements,the primary right and duty and the delict or wrong combined constitute the cause of action in the legal sense of the term...."” Boeken, supra, 48 Cal.4th at 798. For purposes of applying the doctrine of res judicata, the phrase “cause of action” has a very precise meaning: “Thecause of action istheright to obtain redress for a harm suffered, regardless of the specific remedy sought or the legal theory (common law or statutory) advanced.” Boeken, supra, 48 Cal.4th at 798; see Bay Cities Paving & Grading, Inc. v. Lawyers’ Mutual Ins. Co. (1993) 8 (COLA A-M\LaFear-Z2\Dem FAC) DEMURRER TO FIRST AMENDED COMPLAINT L L P 10 5 ) e ill s, C A 91 36 4 W o o d l a n d Hi ll ep h a c s i m 65 4- 90 00 )8 18 ) 65 4- 90 50 ) h o n e il e Te l L a w Of fi ce s of H a u s m a n & S o s a 2 0 7 5 0 V e n t u r a Bo ul ev ar d, Su it F © 0 0 d N o o u r B A O w N D R N O N N N N N D N N N M N N F P F FP F FR , FP , F P R , P R E c o ~ N O o o u l B A W w W O N F P O O V U 0 0 N O U U B A W w W N H o O o 5 Cal.4th 854, 860. [Emphasis in bold added.] In evaluating whether claims relate to the same primary right, California law provides that “[a] claim arises from the harm suffered, as opposed to the particular theory of the litigant. Even when multiple legal theories for recovery exist, one injury gives rise to only one claim for relief.” Petersonv. Highland Music, Inc., 140 F.3d 1313, 1322 (9th Cir.1998) (quoting Eichmann v. F athomed Corp., 759 F.2d 1434, 1438 (9th Cir.1985)). [Emphasis in bold added.] 3 InBC590932 (RJN Exh. 1(FAC)), LaFearalleged discrimination underthe FEHA. [RJ N, Exh. 1.] The grounds for his claims of discrimination were the same. He claimed that he had been working “out of class” since 1999 and he was harassed, not given proper safety equipment and went on leave. He alleges the same facts in the instant FAC, for example: . L aF ear alleges since 1999 he worked “out of class” as a GSN performing the duties of aDPOI.[RJN,Exh1, 195-6; FAC 2, 196-8.] . L aF ear alleges in both complaints that he was “finally” promoted to DPOI after filing grievances. [RJN, Exh. 1, p. 5:9-19; FAC 2, 119.] . L aF ear alleges in both complaints that in July 2013 he reported to Lancaster, CA, and was not provided with necessary equipment. [RJN, Exh. 1, 96, p. 5; FAC 2, 110.] . L aF ear alleges in both complaints that he was harassed by Dalila Alcatera and Mr. D'Avilaand Ms. Aldaz, and was falsely accused of child endangerment, and that harassment continued even after he was cleared of any involvement in a fight between two minors. [See RJ N, Exh. 1, 196-9, p. 5FAC, 9911-12, 14, 15.] F. L aF ear’s Claims Also F ail Because they are I nsufficiently Pled A plaintiff must plead the ultimate facts constituting the cause of action, as opposed to conclusions of law. See Doe v. City of Los Angeles (2007) 42 C4th 531, 550. Although LaFear'sFAC 3 See also Boeken v. Philip Morris USA, Inc. (2010) 48 Cal.4th 788, 798 (“The cause of action is the right to obtain redress for a harm suffered, regardless of the specific remedy sought or the legal theory (common law or statutory) advanced.”); Alpha Mech., Heating & Air Conditioning, Inc. v. Travelers Cas. & Sur. Co. of Am. (2005) 133 Cal.App.4th 1319, 1327(“[I]f two actions involve the same injury to the plaintiff and the same wrong by the defendant then the same primary right is at stake even if in the second suit the plaintiff pleads different theories of recovery, seeks different forms of relief and/or adds new facts supporting recovery.”) (quoting Tensor Group v. City of Glendale (1993) 14 Cal.A pp.4th 154, 160). 9 DEMURRER TO FIRST AMENDED COMPLAINT(COLA A-M\LaFear-Z2\Dem FAC) L L P 10 5 s m a n & So sa , le va rd , Su it e C A 91 36 4 6 5 4 - 9 0 0 0 L a w O f f i c e s of H 2 0 7 5 0 V e n t u r a © 0 0 d N o o u r B A O w N D R N O N N N N N D N N N M N N F P F FP F FR , FP , F P R , P R E c o ~ N O o o u l B A W w W O N F P O O V U 0 0 N O U U B A W w W N H o O o does not contain one claim that is not time-barred or subject to demurrer on res judicata grounds, in an abundance of caution, the County explain why the claims are also insufficiently pled. 1, L aF ear F ails to State a Claim for Disability Discrimination To establish a prima facie case for disparate treatment discrimination, the plaintiff must show (1) he suffers from a disability, (2) he is otherwise qualified to do [his] job, (3) [he] suffered and adverse employment action, and (4) the employer harbored discriminatory intent. Featherstone v. Southern California Permanente Medical Group (2017) 10 Cal.A pp.5th 1150, 1160-66; see Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 355. L aF ear alleges he had a “mental disability” or a “perceived potential disability and he was able to perform the essential job functions with a reasonable accommodation, but he failed to allege that was otherwise qualified to do hisjob. (FAC, 157.) Additionally, LaF ear failed to allege that he suffered an adverse employment action that was not previously adjudicated. The only other stated grounds in the FAC are: (1) failing to provide a reasonable accommodation, and (2) “the overall hostile terms and conditions of employment.” (FAC, 1958, 59.) But failure to accommodate is a separate cause of action pled by LaFear, and “overall hostile terms and conditions” is a conclusory statement, not an ultimate fact. Therefore it is insufficient to support a cause of action for disability discrimination. Itis wholly unclear what alleged hostile terms and conditions LaF earis referring to. If the “terms and conditions” are those which are barred by res judicata, the claim fails. If there are other facts to support the claim, and they are not otherwise barred, L aF ear must clearly state them, and he has not. 2. L aF ear F ails to State a Claim for H arassment A prima facie case for harassment requires the following elements: (1) plaintiff belongs to a protected group; (2) plaintiff was subjected to unwelcome harassment; (3) the harassment complained of was based on protected status; (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 Hospital (1989) 214 Cal.App.3d 590, 608; Kelly v. Conco Companies (2011) 196 Cal.App.4th 191, 202-03. Pervasiveness has been determined to include a pattern of repeated and routine acts. Fisher v. 10 DEMURRER TO FIRST AMENDED COMPLAINT(COLA A-M\LaFear-Z2\Dem FAC) , L L P S u i t e 1 0 5 91 36 4 9 0 0 0 s m a n & S o s a le va rd C A 6 5 4 L a w O f f i c e s of H 2 0 7 5 0 V e n t u r a © 0 0 d N o o u r B A O w N D R N O N N N N N D N N N M N N F P F FP F FR , FP , F P R , P R E c o ~ N O o o u l B A W w W O N F P O O V U 0 0 N O U U B A W w W N H o O o San Pedro Peninsula Hospital (1989) 214 Cal.A pp.3d 590, 610. Harassment requires an abusive work environment that must be measured with the “perspective of an reasonable person belonging to the racial or ethnic group of the plaintiff.” Nazir v. United Airlines (2009) 178 Cal.A pp.4th 243, 264. Moreover, “commonly necessary personnel management actions such as hiring and firing, job project assignments, office or work station assignments, promotion or demotion, performance evaluations, the provision of support, the assignment or nonassignment 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.” Thompson v. City of Monrovia (2010) 186 Cal.A pp.4th 860, 879. L aF earfailed to allege any facts showing that any comments were based on protected status, or that it was sufficiently pervasive so as to alter the conditions of his employment and create an abusive working environment. LaF earfails to plead ultimate facts; he pleads in conclusory terms, alleging only that he was subjected to “harassing comments” based on his disability. (FAC 168.) If any claims are not time barred or barred by res judicata, there is not one factual allegation inthe FAC to support a claim for FEHA harassment. Moreover, the Court in LaFear's prior case held: Moreover, Plaintiff did not submit admissibleevidence suggesting harassment that was sufficiently severe or pervasive to alter the conditions of his employment and create an abusive environment. Plaintiff declared that, following the DFEH complaint (filed in early 2014), he was repeatedly harassed by Dalila Alcataraand Mr. D'Avila, both Hispanic LA Probation employees. (Declaration of Plaintiff, 25.) Plaintiff declared both of the employees attempted to frame him for arranging a fight between two minors at CMY C. Plaintiff also declared Ms. Aldaz would taunt him that he was going to get fired. (Declaration of Plaintiff, 9 25.) However, the events appear to be isolated and, as discussed above, Plaintiff was not written up for the incident involving the fighting minors. The alleged conduct by Alcatara, D'Avila, and Aldaz does not qualify as actionable harassment, even when taken into consideration with M cW horter's conduct. (RJN, Exh. 2, p. 12.) Accordingly, his first and second causes of action are subject to demurrer. 3. L aF ear’s F ailed to State a Claim for FEHA Retaliation To establish a prima facie case ofretaliation, a plaintiff must demonstrate (1) he was engaged in a protected activity, (2) the employer subjected the employee to an adverse employment action, and (3) that there was a causal link between thetwo. Mokler v. County of Orange (2007) 157 Cal.A pp.4th 121, 138. An adverse employment action must be"materially adverse” to claim retaliation. Thomas 11 DEMURRER TO FIRST AMENDED COMPLAINT(COLA A-M\LaFear-Z2\Dem FAC) © 0 0 d N o o u r B A O w N D R L L P 10 5 - oO ) e Su it 1 3 6 4 = N o9 65 4- 90 00 = w8 Fa ch mi le (5 18 1 6 54 90 50 81 T e l e p h o n e ft = = o y Wu » W o o d l a n d Hi ll s, C A L a w Of fi ce s of H a u s m a n & S o s a 3 2 0 7 5 0 V e n t u r a B o u l e v a r d N O N N N N N N N NN N N N P = c o ~ N o o u i A W w W N N F P o O O o o o v. Department of Corrections (2000) 77 Cal.A pp.4th 507, 510. All that L aF ear has alleged lack of promotion; lack of safety equipment; denial of reasonable accommodation; overall hostile work environment. (FAC 976.) Lack of promotion and lack of safety equipment were both adjudicated inthe prior action upon summary judgment. (RJ N, Exh. 2.) There are no promotions which L aF ear alleges he was denied which were not adjudicated in the prior action. (See FAC.) Theonly “reasonableaccommodation” which was allegedly denied was changing to a 9/80 work schedule which occurred before December 22, 2016. (FAC, 944.) LaFear has not alleged that he was denied the ability to go to doctor visits or any other allegation which would suggest discrimination or retaliation on the basis that he requested the schedule change. The only other allegation is that of a “overall hostile work environment” which is conclusory and therefore insufficient as a matter of law. (See FAC 9966, 76.) Itis unclear whatfacts are alleged to have caused the hostile work environment and how they were linked to any of the M okler factors. 4. L aF ear Has F ailed to State a Claim for F ailure to Accommodate Failureto accommodate requires ashowing of: (1) adisability under the FEHA, (2) the plaintiff isqualified to perform the essential functions, and (3) the employee was not reasonably accommodated. Scotch v.ArtlInstituteofCalifornia-Orange County, Inc. (2009) 173 Cal. A pp. 4th 986, 1009-10. Here, the only discernable allegation is that L aF ear was not granted a 9/80 work schedule. (FAC, 1966, 76.) However, the issue appears to be the need to attend doctor's visits. (FAC, 142.) There is no allegation that L aF ear was denied the ability to attend doctor visits. (See FAC.) Moreover, an employer is under no obligation to create a new position for the employee. See Raine v. City of Burbank (2006) 135 Cal.App.4th 1215, 1218. Also, the claim do not fall within the applicable limitations period of December 22, 2016. 5. L aF ear Has F ailed to State a Claim for F ailure to E ngage in the I nteractive Process UndertheFEHA, an employer must engage in a good faith interactive process with the disabled employee to explore the alternatives to accommodate the disability. Gov. Code, § 12940, subd. (n); Claudio v. Regents of the University of California (2005) 134 Cal.A pp.4th 224, 242. The interactive process determines which accommodation is required. Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 263, fn. 7. Each party must participate in good faith, and liability hinges on the 12 (COLA A-M\LaFear-Z2\Dem FAC) DEMURRER TO FIRST AMENDED COMPLAINT L L P 10 5 s m a n & So sa , le va rd , Su it e C A 91 36 4 6 5 4 - 9 0 0 0 L a w O f f i c e s of H 2 0 7 5 0 V e n t u r a © 0 0 d N o o u r B A O w N D R N O N N N N N D N N N M N N F P F FP F FR , FP , F P R , P R E c o ~ N O o o u l B A W w W O N F P O O V U 0 0 N O U U B A W w W N H o O o objective circumstances surrounding the parties’ breakdown in communication, and responsibility for the breakdown lies with the party who fails to participate in good faith. See Jensen, supra, 85 Cal.App.4th at p. 266; Gelfo v, Lockheed Martin Corp (2006) 140 Cal.A pp.4th 34 at 54-62 n.22. LaFear claims that the County failed to respond to his request to discuss possible accommodations in good faith or the nature and extent of his mental disabilities. (FAC, § 93.) However, there are no ultimate facts to support his conclusory statements. L aF ear alludes to an IPM after the fact (FAC 927) butfails to state how the County failed to engage in the interactive process. 6. LaFear Has Failed to State a Claim for Failure to PreventFEHA Discrimination, Harassment and R etaliation Government Code §12940(k) provides that it is an unlawful practice for “an employer, labor organization, employment agency, apprenticeship training program, or any training program leading to employment, to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring.” Government Code §12940(k). A plaintiff claiming a defendant failed to take all reasonable steps to prevent harassment, discrimination and/or retaliation based on a protected status must prove all of the following: (1) The plaintiff was an employee of the defendant, applied to the defendant for ajob or was a person providing services under a contract with the defendant; (2) he was subjected to harassment and/or discrimination and/or retaliation in the course of his or her employment; (3) the defendant failed to take all reasonable steps to prevent the harassment and/or discrimination and/or retaliation; (4) the plaintiff was harmed; and (5) the defendant's failure to take reasonable steps to prevent harassment and/or discrimination and/or retaliation was a substantial factor in causing the plaintiff's harm. Cal. Gov. Code. § 12940(k); California Jury Instructions (“CACI") 2527 (2015). La Fearfails to allege elements three and fiveinthe FAC. His FA C is devoid of anything more than the conclusory statements in paragraph 100 to support this cause of action. Therefore, his sixth cause of action is subject to demurrer. 7. L aF ear Has F ailed to State a Claim for CF RA Retaliation An employer is prohibited from interfering with an eligible employee's right to take either an FMLA or CFRA leave or discriminating or retaliating against an employee for taking such a leave. A plaintiff establishes a prima facie case of retaliation upon showing that “(1) she engaged in a protected 13 DEMURRER TO FIRST AMENDED COMPLAINT(COLA A-M\LaFear-Z2\Dem FAC) L L P 10 5 s m a n & So sa , le va rd , Su it e C A 91 36 4 6 5 4 - 9 0 0 0 L a w O f f i c e s of H 2 0 7 5 0 V e n t u r a © 0 0 d N o o u r B A O w N D R N O N N N N N D N N N M N N F P F FP F FR , FP , F P R , P R E c o ~ N O o o u l B A W w W O N F P O O V U 0 0 N O U U B A W w W N H o O o activity, (2) her employer subjected her to an adverse employment action, and (3) there is a causal link between the two.” Mokler v. County of Orange (2007) 157 Cal .A pp.4th 121, 138. Here, L aF ear claimsthat the County discriminated against him for engaging in activity protected under the FM LA (e.g., discriminating against an employee for past use of leave). Strickland v. Water Works & Sewer Bd. (11th Cir. 2001) 239 F3d 1199, 1206-1207. However, a plaintiff claiming CFRA retaliation must show a causal connection between the leave request and the adverse employment action. See Spakes v. Broward County Sheriff's Office (11th Cir. 2011) 631 F3d 1307, 1310-“the causal nexus element is the ‘increased burden’ that a retaliation plaintiff faces that an interference plaintiff does not”; see also Germanowksi v. Harris (1st Cir. 2017) 854 F3d 68, 75-no causal link between leave request and termination where employee, already locked out of work and suspecting termination imminent, then requested leave due to claimed illness. L aF earfailed to allege an adverse employment action. He claims in conclusory terms that his shift was changed when he was out on approved medical leave. (FAC, 1111.) The only claim in the FAC isthatLaFeartook CFRA leavein November 2015 and when hereturned inj anuary 2016 his shift was changed. (FAC, 19 15, 16.) Not only is this claim outside the limitations period (it predates December 22,2016), itis also conclusory and it does not state any facts showing a causal link betw een a request for leave and an adverse employment action. Accordingly, LaF ear’s seventh cause of action is subject to demurrer. 8. L aF ear Has F ailed to State a Claim for Violation of L ab. Code § 1102.5. Section 1102.5 of the Labor Code prohibits retaliation “against an employee for disclosing information, or because the employer believes that the employee disclosed or may disclose information, to a government or law enforcement agency...” where “employee has reasonable cause to believe that the information discloses a violation ofstate or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation, regardless of whether disclosing the information is part of the employee's job duties.” (Emphasis added.) Labor Code §1102.5(b). First, LaF ear has failed to establish the required protected activity of disclosing certain types of information to a “government or law enforcement agency.” Lab. Code, §1102.5. Second, LaF ear is barred from referencing alleged event predating September 19, 2017. Gov. Code., §911.2. Third, 14 DEMURRER TO FIRST AMENDED COMPLAINT(COLA A-M\LaFear-Z2\Dem FAC) © 0 0 d N o o u r B A O w N D R L L P 10 5 - oO ) e Su it 1 3 6 4 = N o9 65 4- 90 00 = w8 Fa ch mi le (5 18 1 6 54 90 50 81 T e l e p h o n e ft = = o y Wu » W o o d l a n d Hi ll s, C A L a w Of fi ce s of H a u s m a n & S o s a 3 2 0 7 5 0 V e n t u r a B o u l e v a r d N O N N N N N N N NN N N N P = c o ~ N o o u i A W w W N N F P o O O o o o LaF ear has failed to allege facts suggesting any retaliatory or improper motive or conduct by the County. Rather, L aF ear relies on mereinuendo. Furthermore, an employee must exhaust the employer's internal administrative remedies beforefiling suitunder Lab.C.§ 1102.5. Campbell v. Regents ofU niv. of Calif. (2005) 35 C4th 311, 329-331. Therefore, the eighth cause of action is subject to demurrer. 9. L aF ear Has F ailed to State a Claim for L ab. C ode, § 6310. Labor Code Section 6310 prohibits in part, the discharge of, or discrimination or retaliation against an employee for making an oral or written complaint to “the division, other governmental agencies having statutory responsibility for or assisting the division with reference to employee safety or health...” Theallegations in the operative pleading must allege or provide evidence that the plaintiff complained to the government agency or division having “statutory responsibility” with employee safety or health. “M aking a complaint to an employer does not satisfy the statutory requirements of Labor Code section 6310; rather, an employee must complain about unsafe working conditions.” Lab.Code, §6310, subd.(a) & (b); Hentzel v. Singer Co. (1982) 138 Cal.A pp.3d 290, 299. LaFear claims that“as referenced above, [he] complained to the CDCR about continued incidents of harassment due to Plaintiffs disability.” (FAC, 9129.) However, paragraph 129 contains the first and only mention of the “CDCR” inthe FAC. There is no allegation of what the CDCR is, or what was the date or substance of the complaint. Since there are no allegations of the date of any such claim, and all dates inthe FA C occur before September 19, 2017, LaFear’s claim is time-barred. Also, there is no allegation of unsafe working conditions, only conclusory allegations of harassment. Accordingly, LaFear's ninth cause of action is subject to demurrer. IV. CONCLUSION The claims in LaFear's First Amended Complaint are all outside the statutory limitations periods and/or were previously adjudicated, and/or otherwise fail to state a claim. For all of the foregoing reasons, and based upon the authorities cited herein, D efendant respectfully requests that this Court sustain its Demurrer without leave to amend. LAW OFFICES OF HAUSMAN & SOSA, LLP Date: January 2, 2019 By: /s/ Sally S. Frontman JEFFREY M. HAUSMAN SALLY S.FRONTMAN Attorney for: Defendant, COUNTY OF LOSANGELES 15 (COLA A-M\LaFear-Z2\Dem FAC) DEMURRER TO FIRST AMENDED COMPLAINT © 0 0 d N o o u r B A O w N D R L L P 10 5 - oO ) e Su it 1 3 6 4 = N o9 65 4- 90 00 = w)8 Fa cs im il e (8 18 ) 65 4- 90 50 T e l e p h o n e B n > oo = W o o d l a n d Hi ll s, C A L a w Of fi ce s of H a u s m a n & S o s a 3 2 0 7 5 0 V e n t u r a B o u l e v a r d N O N N N N N N N NN N N N P = c o ~ N o o u i A W w W N N F P o O O o o o PROOF OF SERVICE BY MAIL ANDELECTRONIC MAIL STATE OF CALIFORNIA, COUNTY OF LOS ANGELES | am a resident of the county aforesaid; | am over the age of eighteen years and not a party to thewithin entitled action; my business addressis20750V enturaBoulevard, Suite 105, Woodland Hills, CA 91364. OnJanuary 2,2019, | served thewithin NOTICE OF DEMURRER ANDDEMURRER TO FIRST AMENDED COMPLAINT [C.C.P. §430.10; MEMORANDUM OF POINTS AND AUTHORITIESIN SUPPORT THEREOF on the interested parties in said action, by placing atrue copy thereof enclosed ina sealed envelope with postage thereon fully prepaid, in the U nited States mail atWoodland Hills, California. Additionally, the parties were served by electronic mail. Theelectronic transmission report indicated that the transmission was complete and without error. Service was completed as follows: Bradley J. Mancuso, Esq. Attorney for Plaintiff, | ermaine L aF ear Christina R. Kerner, Esq. Bohm Law Group 21051 Warner Center Lane, Suite 225 Woodland Hills, CA 91367 Email: Brad@ bohmlaw.com ckerner@ bohmlaw.com Executed on January 2, 2019, at Woodland Hills, California. | declare under penalty of perjury, under the laws of the State of California that the foregoing is true and correct. tvsST Jolyn Strickler 16 (COLA A-M\LaFear-Z2\Dem FAC) DEMURRER TO FIRST AMENDED COMPLAINT 11/8/2018 Reservation Printout-BC716332-181108364269 THIS IS YOUR CRS RECEIPT INSTRUCTIONS Please print this receipt and attach it to the corresponding motion/document as the last page. Indicate the Reservation ID on the motion/document face page (see example). The document will not be accepted withoutthis receipt page and the Reservation ID. ALIFORNIA, COUNTYOF LOS ANGELES ) CASE NO.: BCOD000D J ) NOTICE OF MOTION AND N ) TO COMPEL ANSWERSTRO Fit ) INTERROGATQRIEY ) ) DATE J 2020 y Jair 2:33 pen ) DEPT: ) : 131112001085 RESERVATION INFORMATION Reservation ID: 181108364269 Transaction Date: November 8, 2018 12:40 PM Case Number: BC716332 Case Title: JERMAINE LAFEAR VS COUNTY OF LOS ANGELES Party: LOS ANGELES COUNTY OF (Defendant) Courthouse: Stanley Mosk Courthouse Department: 74 Reservation Type: Demurrer - with Motion to Strike Date: 1/25/2019 Time: 08:30 am FEE INFORMATION (Fees are non-refundable) First Paper Fee: (See below) Description Fee First Paper (Unlimited Civil) $435.00 Motion to Strike (not anti-SLAPP) $60.00 Total Fees: $495.00 PAYMENT INFORMATION Special Condition: NO FEE REQUIRED - Gov. Code, § 6103 The reserving party asserts they are filing on behalf of government agency County of Los Angeles. (Validity must be confirmed at the time of filing the motion/document. Document must include required Government Agency language on face page.) Waived fees are recoverable (plus a one-time administrative fee upon judgment if the party becomes a judgmentcreditor). A COPY OF THIS RECEIPT MUST BE ATTACHED TO THE CORRESPONDING MOTION/DOCUMENT AS THE LAST PAGE AND THE RESERVATION ID INDICATED ON THE MOTION/DOCUMENT FACE PAGE. https://www.lacourt.org/mrs/ui/printablereceipt.aspx?id=undefined 11