Demurrer__without_motion_to_strikeMotionCal. Super. - 2nd Dist.August 1, 2018Electronically FILED by Superior Court of California, County of Los Angeles on 01/02/2019 03:53 PM Sherri R. Carter, Executive Officer/Clerk of Court, by K. Hung,Deputy Clerk ,L LP Su it e 10 5 9 W o o d l a n d Hi ll s, C A 91 36 4 6 5 4 - 9 0 0 0 ) 65 4- 90 50 ) 8 ho ne (8 1 ac ai mi le Si s Te le L a w Of fi ce s of H a u s m a n & So sa F 20 75 0 V e n t u r a B o u l e v a r d AN Ln W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LAW OFFICES OF HAUSMAN & SOSA, LLP Jeffrey M. Hausman, Esq., Bar No. 057251 Exempt from Payment of Filing Fees 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 LOS ANGELES SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF LOS ANGELES, 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 Defendants. RESERVATION ID: 181108364269 Assigned for All purposes to the Honorable Michelle Williams Court N r er N e N e N e N e N e N e N e N e N e N e N e N e N e N e N e N e N N TO THE PLAINTIFF AND HIS ATTORNEY OF RECORD: PLEASE TAKE NOTICE that on January 25,2019 at 9:00 a.m., in Department 74 of the above located Court located at 111 North Hill Street, Los Angeles, California, the Defendants County of Los Angeles, will demurrer to the First Amended Complaint (“FAC”) in accordance with the provision of Code of Civil Procedure §430.10. 111 1 DEMURRER TO FIRST AMENDED COMPLAINT (COLA A-M\LaFear-Z2\Dem FAC) ,L LP Su it e 10 5 9 W o o d l a n d Hi ll s, C A 91 36 4 @l 6 5 4 - 9 0 0 0 ) 8 Fa cs im il e (8 18 ) 6 5 4 - 9 0 5 0 ph on e 20 75 0 V e n t u r a B o u l e v a r d Te le L a w Of fi ce s of H a u s m a n & So sa AN Ln W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 This Demurrer is based upon this Notice, the Demurrer, the Memorandum of Points and Authorities, the Declaration Re Meeting 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 LOS ANGELES 2 DEMURRER TO FIRST AMENDED COMPLAINT (COLA A-M\LaFear-Z2\Dem FAC) ,L LP Su it e 10 5 9 W o o d l a n d Hi ll s, C A 91 36 4 @l 6 5 4 - 9 0 0 0 ) 8 Fa cs im il e (8 18 ) 6 5 4 - 9 0 5 0 ph on e 20 75 0 V e n t u r a B o u l e v a r d Te le L a w Of fi ce s of H a u s m a n & So sa AN Ln W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEMURRER TO THE COMPLAINT COMES NOW Defendant, County of Los Angeles, who hereby demurrers to the First Amended Complaint as follows: I. The Defendant demurrers to the First Cause of Action 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 Action 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 Action 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 demurrers to 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 the responding party. Code of Civil Procedure section 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). 111 3 DEMURRER TO FIRST AMENDED COMPLAINT (COLA A-M\LaFear-Z2\Dem FAC) ,L LP Su it e 10 5 9 W o o d l a n d Hi ll s, C A 91 36 4 @l 6 5 4 - 9 0 0 0 ) 8 Fa cs im il e (8 18 ) 6 5 4 - 9 0 5 0 ph on e 20 75 0 V e n t u r a B o u l e v a r d Te le L a w Of fi ce s of H a u s m a n & So sa AN Ln W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9. The Defendant demurrers to the Ninth Cause of Action for “Labor Code § 6310.” 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). 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 LOS ANGELES 4 (COLA A-M\LaFear-Z2\Dem FAC) DEMURRER TO FIRST AMENDED COMPLAINT ,L LP Su it e 10 5 9 W o o d l a n d Hi ll s, C A 91 36 4 @l 6 5 4 - 9 0 0 0 ) 8 Fa cs im il e (8 18 ) 6 5 4 - 9 0 5 0 ph on e 20 75 0 V e n t u r a B o u l e v a r d Te le L a w Of fi ce s of H a u s m a n & So sa AN Ln W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF CONTENTS TABLE OF AUTHORITIES . . oe eee eee i11-1v STATUTES AND OTHER AUTHORITIES ...... eee v MEMORANDUM OF POINTS AND AUTHORITIES ....... iii. 1 LL. INTRODUCTION . Le ee eee eee eee 1 II. SUMMARY OF THE FACTS ALLEGED IN THE FIRST AMENDED COMPLAINT .. 1 A. Facts Previously Adjudicated in the County’s Favor ........................ 1 B. Denial of a 9/80 Shift is Not an Adverse Employment Action ................. 3 IOI. LEGAL ARGUMENT ©... ee ee eee 5 A. Standard for Demurrer .......... 5 B. LaFear Failed to Properly Plead Exhaustion of Administrative Remedies and All of His Claims are Time-Barred ................................... 3 1. LaFear's Labor Code Claims (Counts 8 and 9) are Time-Barred ......... 5 2. LaFear's FEHA and CFRA Claims are also Time Barred ............... 6 3. The Continuing Violations Doctrine Does Not Apply to Claims Adjudicated ...... L 6 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 .................iuiiiiininnennenn.. id E. Res Judicata Applies Regardless of the Prior Theory Asserted Pursuant to the Primary Rights Theory Under CalifornialLaw ............................. 8 F. LaFear’s Claims Also Fail Because they are Insufficiently Pled ............... 9 1. LaFear Fails to State a Claim for Disability Discrimination ........... 10 2. LaFear Fails to State a Claim for Harassment ....................... 10 3. LaFear's Failed to State a Claim for FEHA Retaliation. ............... 11 4. LaFear 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: Initeraelive PROCESS «wm «ss smmmn css sawmnc ss numsesss snumnsss ana 12 6. LaFear 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 i (COLA A-M\LaFear-Z2\Dem FAC) DEMURRER TO FIRST AMENDED COMPLAINT ,L LP Su it e 10 5 9 W o o d l a n d Hi ll s, C A 91 36 4 @l 6 5 4 - 9 0 0 0 ) 8 Fa cs im il e (8 18 ) 65 4- 90 50 ph on e 20 75 0 V e n t u r a B o u l e v a r d Te le L a w Of fi ce s of H a u s m a n & So sa AN Ln W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8. LaFear Has Failed to State a Claim for Violation of Lab. Code § 1102.5 . oo eee 14 0. LaFear Has Failed to State a Claim for Lab. Code § 6310 ............. 15 IV. CONCLUSION oo e sa 15 i1 (COLA A-M\LaFear-Z2\Dem FAC) DEMURRER TO FIRST AMENDED COMPLAINT ,L LP Su it e 10 5 9 W o o d l a n d Hi ll s, C A 91 36 4 6 5 4 - 9 0 0 0 ) 65 4- 90 50 ) 8 ho ne (8 1 ac ai mi le Si s Te le L a w Of fi ce s of H a u s m a n & So sa F 20 75 0 V e n t u r a B o u l e v a r d AN Ln W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES Acuna v. 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. 2008) 133 Cal.AppAth 1319, 1327 wu ssvnumnssssaunnsss uusnsss aR ans ss Suuan s s 6u% 9 Bay Cities Paving & Grading, Inc. v. Lawyers’ Mutual Ins. Co. (1993) 5 Cal.4th 854, 860 ...... 8 Boeken v. Philip Morris USA, Inc., 48 Cal.4th 788, 797 (2010) ........... cco... 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 Doe v. City of Los Angeles (2007) 42 C4th 531,550 . .. o.oo ea 9 Featherstone v. Southern California Permanente Medical Group (2017) 10 Cal. App.Sth 1150, 1160-66 . . . . «ote ee eee eee eee 10 Federated Dep’t. Stores, Inc. v. Moitie, 452 U.S. 394, 398, 101 S.Ct. 2424, 69 L.Ed2d 1083 (1981) : sans s ss smmmns is sunancss suusasss nuunasss Savas sss Suman ¢ fs any 8 Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal. App.3d 590,604 ................. 5,10 Gelfo v, Lockheed Martin Corp (2006) 140 Cal.App.4th 34 at 54-62 n.22 .................. 13 Germanowksi v. Harris (1st Cir. 2017) 854 F3d 68,75... iii 14 Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317,355... iii ieee 10 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 ........ iin 8 Investors Equity Life Holding Co. v. Schmidt (2011) 195 Cal. App.4th 1519, 1533 ............ 6 Jackson v. Hayakawa, 605 F.2d 1121, 1125n.3 (Oth Cir.1979) . ..... co. o iii 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 . ......................... 10 Kourtis v. Cameron, 419 F.3d 989, 996 (9th Cir.2005) ........ iii. 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 (Oth Cir.1998) ...................... 9 Raine v. City of Burbank (2006) 135 Cal. App.4th 1215, 1218 ........... i... 12 Rakestraw v. Cal. Physicians’ Service (2000) 81 Cal.App.4th 39,43 ....................... 5 iii (COLA A-M\LaFear-Z2\Dem FAC) DEMURRER TO FIRST AMENDED COMPLAINT ,L LP Su it e 10 5 9 W o o d l a n d Hi ll s, C A 91 36 4 6 5 4 - 9 0 0 0 ) 65 4- 90 50 ) 8 ho ne (8 1 ac ai mi le Si s Te le L a w Of fi ce s of H a u s m a n & So sa F 20 75 0 V e n t u r a B o u l e v a r d AN Ln W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, 822-823 Scotch v. Art Institute of California-Orange County, Inc. (2009) 173 Cal. App. 4th 986, 1009-10 . . . «oo ee 12 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 ........... i iio.. 5 iv DEMURRER TO FIRST AMENDED COMPLAINT (COLA A-M\LaFear-Z2\Dem FAC) ,L LP Su it e 10 5 9 W o o d l a n d Hi ll s, C A 91 36 4 6 5 4 - 9 0 0 0 ) 65 4- 90 50 ) 8 ho ne (8 1 ac ai mi le Si s Te le L a w Of fi ce s of H a u s m a n & So sa F 20 75 0 V e n t u r a B o u l e v a r d AN Ln W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 STATUTES AND OTHER AUTHORITIES California Government Code §12940 . ..... ee 12,13 California Government Code §12960 . .... 6 California Government Code §911.2 . . ee 14 California Government Code §91 1.2 . . 5 California Jury Instructions 2527 (2015) . «o.oo 13 California Labor Code §1102.5 . . ee ee ee eee eee eee 14 California Labor Code §6310 . ... eee eee ee 15 Vv (COLA A-M\LaFear-Z2\Dem FAC) DEMURRER TO FIRST AMENDED COMPLAINT ,L LP Su it e 10 5 9 W o o d l a n d Hi ll s, C A 91 36 4 @l 6 5 4 - 9 0 0 0 ) 8 Fa cs im il e (8 18 ) 6 5 4 - 9 0 5 0 ph on e 20 75 0 V e n t u r a B o u l e v a r d Te le L a w Of fi ce s of H a u s m a n & So sa AN Ln W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES IL INTRODUCTORY STATEMENT Plaintiff Jermaine LaFear (“LaFear”), having lost his previous lawsuit against his employer defendant, County of Los 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 are insufficiently 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 Employment and Housing Act (the “FEHA”), based on the same facts and circumstances.’ LaFear is currently a County employee and holds the position of Deputy Probation Officer, II, Field (“DPO II’) with the County of Los Angeles Probation Department (“the Department”). In the present case, most of LaFear’s factual claims are identical. The parties are also identical and the claims are based on the same facts. Yet, LaFear failed to file a notice of related cases. Now LaFear claims he has suffered discrimination based on a medical disability. However, the law does not permit a him to re-litigate the same claim dressed up as different theories. LaFear’s previously litigated claims should be dismissed. Moreover, even if LaFear 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 FACTS ALLEGED IN THE FIRST AMENDED COMPLAINT A. Facts Previously Adjudicated in the County’s Favor LaFear 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 I (“DPO I”) 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 Complaint in BC590932 and the January 24, 2018 Ruling Granting Summary Judgment in favor of the County in BC590932 are attached to the County’s Request for Judicial Notice (“RIN”) as Exhibits 1 and 2, respectively. 1 DEMURRER TO FIRST AMENDED COMPLAINT (COLA A-M\LaFear-Z2\Dem FAC) ,L LP Su it e 10 5 9 W o o d l a n d Hi ll s, C A 91 36 4 @l 6 5 4 - 9 0 0 0 ) 8 Fa cs im il e (8 18 ) 6 5 4 - 9 0 5 0 ph on e 20 75 0 V e n t u r a B o u l e v a r d Te le L a w Of fi ce s of H a u s m a n & So sa AN Ln W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (FAC, 6.) LaFear claims the County refused to acknowledge his claims of out of class work. (FAC, 7.) LaFear believed the County did not acknowledge his work due to his African American heritage (FAC, q8.) All of these claims were finally adjudicated in the County’s favor. (RJN, Exh. 2.) LaFear claims he promoted to DPO I after filing many grievances and complaints. (FAC, 9.) In July 2013, when he reported for duty as a DPO I, he claims he was not provided proper safety equipment (FAC, q 10) and filed a DFEH complaint in early 2014. (FAC, | 11.) 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 involvement in the incident and was harassed thereafter. (FAC, 12.) All of these claims were finally adjudicated in the County’s favor. (RIN, Exh. 2, p. 12, FN 3.) LaFear filed a civil lawsuit on August 11,2015, alleging harassment, discrimination retaliation, and failure to prevent the harassment, discrimination and retaliation. (FAC, 13.) 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. (RJN, Exh. 2.) In fact, the court’s Ruling specifically mentions the exact same claims pled by LaFear in this case, wherein he claims that he asked for safety equipment and was told “Ok, remind me later” and “we’ll get it to you.” RIN 2, p. 9. The Court held that “LaFear failed to submit admissible evidence that he was not provided with equipment due to his race (or in retaliation for complaints).” RIN Exh. 2, p. 9. In the present case LaFear claims he was not permitted to enter his own electronic time. (FAC, 24.) He did the same in the prior action, and the court expressly held that the claim is not an adverse employment action. (RJN Exh. 2, p. 9.) LaFear claims he took CFRA leave in November 2015 and returned in January 2016. (FAC, qq 15, 16.) He claims his shift was changed when he returned and D’ Avila antagonized him. (FAC, 17.) LaFear claims to have taken FMLA/CFRA leave after an “incident” with D’ Avila for which no date is alleged. (FAC, | 18.) This is a 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 II while on CFRA leave and was promoted in April 2016. (FAC, || 19-22.) All events which took place prior to April 2016 were or should have been previously raised and adjudicated 2 DEMURRER TO FIRST AMENDED COMPLAINT (COLA A-M\LaFear-Z2\Dem FAC) ,L LP Su it e 10 5 9 W o o d l a n d Hi ll s, C A 91 36 4 @l 6 5 4 - 9 0 0 0 ) 8 Fa cs im il e (8 18 ) 6 5 4 - 9 0 5 0 ph on e 20 75 0 V e n t u r a B o u l e v a r d Te le L a w Of fi ce s of H a u s m a n & So sa AN Ln W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 and are subject to demurrer without leave to amend. LaFear alleges that after his promotion to DPO II, 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, {24.) As held in the prior case, none of these claims constitutes an adverse employment action. B. Denial of a 9/80 Shift is Not an Adverse Employment Action LaFear claims on 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, { 25.) He alleges on May 5, 2016 he spoke to Woods who said he would look into the request. (FAC, 26.) On May 6, 2016, LaFear claims he tried to submit a request for a shift change on the computer system and was prevented by Wills. Then LaFear claims Wills made a comment regarding an Interactive Process Meeting (“IPM”) that apparently occurred, though LaFear failed to include allegations regarding the IPM in the FAC, and/or whether it was in reference to the request for a shift change. (See FAC {27.) LaFear 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, { 28. ) LaFear alleges that he emailed Director Jimenez on May 11, 2016 about the same complaint against D’ Avila (already adjudicated), and received an email in response from Woods notifying LaFear he had been transferred to the Centinela Area Office. (FAC, 29.) 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, { 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. LaFear also 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, “You got promoted, don’t rock the boat,” nothing more. (FAC, 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) ,L LP Su it e 10 5 9 W o o d l a n d Hi ll s, C A 91 36 4 @l 6 5 4 - 9 0 0 0 ) 8 Fa cs im il e (8 18 ) 6 5 4 - 9 0 5 0 ph on e 20 75 0 V e n t u r a B o u l e v a r d Te le L a w Of fi ce s of H a u s m a n & So sa AN Ln W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 his “promotion is in jeopardy,” but he does not allege that any of his promotions were revoked. (FAC, 933.) He claims on May 25, 2016, Dana Harper (“Harper”) questioned him about whether he had documents on file regarding his recurring medical appointments. (FAC, q 34.) He claims he was assigned more cases than a “seasoned DPO II” and did not have computer access. (FAC, 36.) He claims another DPO II felt he was being set up to fail (FAC, { 39) but LaFear was given computer access only a few days later, June 6, 2016. (FAC, {41.) LaFear alleges he was denied a shift change as an accommodation for his regular doctor appointments by Harper (FAC, (42) but LaFear 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. LaFear claims he filed a grievance regarding the denial of the shift change on July 21, 2016 and met with Woods regarding the grievance which was denied. (FAC, 43.) 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 LaFear 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 Monday through Friday from 8 am to 5 p.m.” (Id.) Finally, LaFear claims Harper questioned him about his personal life and allegedly took something from his desk. (FAC, 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, 49.) He does not claim that the client harmed him in any way. He even claims he suffered an anxiety attack and took FMLA/CFRA leave and received a new job offer from the County stating it would work with his need for accommodations! (FAC {{ 50-52.) Finally, LaFear 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 March 19, 2018 which was rejected on April 25, 2018. (FAC 53.) However, he failed to attach either claim to the FAC or allege that he included his FEHA and/or Labor Code claims in the DFEH or Government Tort Claim, respectively. Accordingly, FEHA claims based 4 DEMURRER TO FIRST AMENDED COMPLAINT (COLA A-M\LaFear-Z2\Dem FAC) ,L LP Su it e 10 5 9 W o o d l a n d Hi ll s, C A 91 36 4 @l 6 5 4 - 9 0 0 0 ) 8 Fa cs im il e (8 18 ) 6 5 4 - 9 0 5 0 ph on e 20 75 0 V e n t u r a B o u l e v a r d Te le L a w Of fi ce s of H a u s m a n & So sa AN Ln W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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. 11. 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 demurrer tests the legal sufficiency of a complaint, therefore, the plaintiff must show that the complaint alleges facts sufficient to establish every element of each cause of action. Rakestraw v. Cal. Physicians’ Service (2000) 81 Cal.App.4th 39, 43. Where the complaint fails to do so, the court must sustain the demurrer, and, if it is 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. LaF ear Failed to Properly Plead Exhaustion of Administrative Remedies and All of His Claims are Time-Barred 1. LaFear’s Labor Code Claims (Counts 8 and 9) are Time-Barred. Actions against public entities are governed by the California Tort Claims Act (the “Act”). Under the Act, no person may sue a public entity for “money or damages” unless a timely 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’s Government Tort Claim is alleged to have been filed on March 19, 2018 and rejected on April 25, 2018. Accordingly, Labor Code violations alleged to have occurred prior to September 19, 2017 are time barred. There is 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. Moreover, LaFear failed to attach his Government Tort Claim to the FAC, nor did he state what claims he alleged therein. (FAC, 953.) Accordingly, LaFear has not properly pled the filing of a Tort Claim. * LaFear claims a grievance was denied and he met with Director Woods regarding the denial of the shift change on July 21, 2016. (FAC, 43.) 5 DEMURRER TO FIRST AMENDED COMPLAINT (COLA A-M\LaFear-Z2\Dem FAC) ,L LP Su it e 10 5 9 W o o d l a n d Hi ll s, C A 91 36 4 @l 6 5 4 - 9 0 0 0 ) 8 Fa cs im il e (8 18 ) 6 5 4 - 9 0 5 0 ph on e 20 75 0 V e n t u r a B o u l e v a r d Te le L a w Of fi ce s of H a u s m a n & So sa AN Ln W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2. LaFear’s FEHA 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 year after the alleged unlawful action occurred. Gov. Code, § 12960, subd. (d). See Okoli v. Lockheed Technical Operations Co. (1995) 36 Cal.App.4th 1607, 1613. LaFear alleges 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 favor in LaFear’s prior action. Accordingly, 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 Does Not Apply to Claims Adjudicated. During a meet and confer, LaFear'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 assert a continuing violation of conduct which conduct has already been adjudicated to be appropriate and not a violation of FEHA. Accordingly, LaFear cannot claim that the continuing violations doctrine applies. Also tolling must be specifically alleged in the FAC, yet it was not. See Investors Equity Life Holding Co. v. Schmidt (2011) 195 Cal. App.4th 1519, 1533. Finally, as for the denial of a 9/80 work schedule, the grievance was denied and achieved permanence before the limitations period. Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, 822-823. C. Res Judicata and Collateral Estoppel Bar the Present Lawsuit Simply put, LaFear 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 LaFear’s claims from being raised because they were resolved by way of a judgment on the merits in favor of 6 DEMURRER TO FIRST AMENDED COMPLAINT (COLA A-M\LaFear-Z2\Dem FAC) ,L LP Su it e 10 5 9 W o o d l a n d Hi ll s, C A 91 36 4 @l 6 5 4 - 9 0 0 0 ) 8 Fa cs im il e (8 18 ) 6 5 4 - 9 0 5 0 ph on e 20 75 0 V e n t u r a B o u l e v a r d Te le L a w Of fi ce s of H a u s m a n & So sa AN Ln W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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. ccc “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. The tests 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 are met: the claims are identical, the prior proceeding resulted in a final judgment in the County’s favor, and the County is again the defendant. D. Summary Judgment is Res Judicata as to Any Claim that Could have been Asserted on the Factual Allegations Summary judgment is a final judgment on the merits for preclusion purposes. See Jackson 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 DEMURRER TO FIRST AMENDED COMPLAINT (COLA A-M\LaFear-Z2\Dem FAC) ,L LP Su it e 10 5 9 W o o d l a n d Hi ll s, C A 91 36 4 @l 6 5 4 - 9 0 0 0 ) 8 Fa cs im il e (8 18 ) 6 5 4 - 9 0 5 0 ph on e 20 75 0 V e n t u r a B o u l e v a r d Te le L a w Of fi ce s of H a u s m a n & So sa AN Ln W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 or could have been raised in that action. Federated Dep't. Stores, Inc. v. Moitie, 452 U.S. 394, 398, 101 S.Ct. 2424, 69 L.Ed.2d 103 (1981). Summary judgment is res judicata not only to the claim alleged in the complaint, but also as to any other claim that could have been asserted on the basis of 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 bar to the present lawsuit. (RIN, 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, LaFear is attempting to relitigate issues that have already been decided in the Superior Court Action. (See Section II, supra, Summary of the Case, and prior FAC and Ruling, RIN 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 brought initially, they may not be raised at a later date.” [1d.] 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: “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.” Boeken, supra, 48 Cal.4th at 798; see Bay Cities Paving & Grading, Inc. v. Lawyers’ Mutual Ins. Co. (1993) 8 DEMURRER TO FIRST AMENDED COMPLAINT (COLA A-M\LaFear-Z2\Dem FAC) ,L LP Su it e 10 5 9 W o o d l a n d Hi ll s, C A 91 36 4 @l 6 5 4 - 9 0 0 0 ) 8 Fa cs im il e (8 18 ) 6 5 4 - 9 0 5 0 ph on e 20 75 0 V e n t u r a B o u l e v a r d Te le L a w Of fi ce s of H a u s m a n & So sa AN Ln W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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.” Peterson v. Highland Music, Inc., 140 F.3d 1313, 1322 (9th Cir.1998) (quoting Eichmann v. Fathomed Corp., 759 F.2d 1434, 1438 (9th Cir.1985)). [Emphasis in bold added.] * In BC590932 (RIN Exh. 1 (FAC)), LaFear alleged discrimination under the FEHA. [RIN, 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: ° LaFear alleges since 1999 he worked “out of class” as a GSN performing the duties of a DPO I. [RIN, Exh 1, 5-6; FAC 2, ]{6-8.] ° LaFear alleges in both complaints that he was “finally” promoted to DPOI after filing grievances. [RIN, Exh. 1, p. 5:9-19; FAC 2, 9.] ° LaFear alleges in both complaints that in July 2013 he reported to Lancaster, CA, and was not provided with necessary equipment. [RIN, Exh. 1, 6, p. 5; FAC 2, {10.] ° LaFear alleges in both complaints that he was harassed by Dalila Alcatera and Mr. D’ Avila and 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 RIN, Exh. 1, {]6-9, p- 5; FAC, qq11-12, 14, 15.] F. LaFear’s Claims Also Fail Because they are Insufficiently 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’s FAC 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. App.4th 154, 160). 9 DEMURRER TO FIRST AMENDED COMPLAINT (COLA A-M\LaFear-Z2\Dem FAC) ,L LP Su it e 10 5 9 W o o d l a n d Hi ll s, C A 91 36 4 @l 6 5 4 - 9 0 0 0 ) 8 Fa cs im il e (8 18 ) 6 5 4 - 9 0 5 0 ph on e 20 75 0 V e n t u r a B o u l e v a r d Te le L a w Of fi ce s of H a u s m a n & So sa AN Ln W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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. LaF ear Fails 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. App.5th 1150, 1160-66; see Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 355. LaFear 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 his job. (FAC, 57.) Additionally, LaFear 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, |] 58, 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. It is wholly unclear what alleged hostile terms and conditions LaFear is 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, LaFear must clearly state them, and he has not. 2. LaF ear Fails to State a Claim for Harassment 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 LP Su it e 10 5 9 W o o d l a n d Hi ll s, C A 91 36 4 @l 6 5 4 - 9 0 0 0 ) 8 Fa cs im il e (8 18 ) 6 5 4 - 9 0 5 0 ph on e 20 75 0 V e n t u r a B o u l e v a r d Te le L a w Of fi ce s of H a u s m a n & So sa AN Ln W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 San Pedro Peninsula Hospital (1989) 214 Cal. App.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.App.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.App.4th 860, 879. LaFear failed 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. LaFear fails to plead ultimate facts; he pleads in conclusory terms, alleging only that he was subjected to “harassing comments” based on his disability. (FAC { 68.) If any claims are not time barred or barred by res judicata, there is not one factual allegation in the FAC to support a claim for FEHA harassment. Moreover, the Court in LaFear’s prior case held: Moreover, Plaintiff did not submit admissible-evidence 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 Alcatara and 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 CMYC. Plaintiff also declared Ms. Aldaz would taunt him that he was going to get fired. (Declaration of Plaintiff, 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 McWhorter's conduct. (RIN, Exh. 2, p. 12.) Accordingly, his first and second causes of action are subject to demurrer. 3. LaFear’s Failed to State a Claim for FEHA Retaliation To establish a prima facie case of retaliation, 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 the two. Mokler v. County of Orange (2007) 157 Cal. App.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) ,L LP Su it e 10 5 9 W o o d l a n d Hi ll s, C A 91 36 4 @l 6 5 4 - 9 0 0 0 ) 8 Fa cs im il e (8 18 ) 6 5 4 - 9 0 5 0 ph on e 20 75 0 V e n t u r a B o u l e v a r d Te le L a w Of fi ce s of H a u s m a n & So sa AN Ln W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 v. Department of Corrections (2000) 77 Cal. App.4th 507, 510. All that LaFear has alleged lack of promotion; lack of safety equipment; denial of reasonable accommodation; overall hostile work environment. (FAC 76.) Lack of promotion and lack of safety equipment were both adjudicated in the prior action upon summary judgment. (RJN, Exh. 2.) There are no promotions which LaFear alleges he was denied which were not adjudicated in the prior action. (See FAC.) The only “reasonable accommodation” which was allegedly denied was changing to a 9/80 work schedule which occurred before December 22, 2016. (FAC, 44.) 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 |] 66, 76.) It is unclear what facts are alleged to have caused the hostile work environment and how they were linked to any of the Mokler factors. 4. LaFear Has Failed to State a Claim for Failure to Accommodate Failure to accommodate requires a showing of: (1) a disability under the FEHA, (2) the plaintiff is qualified to perform the essential functions, and (3) the employee was not reasonably accommodated. Scotch v. Art Institute of California-Orange County, Inc. (2009) 173 Cal. App. 4th 986, 1009-10. Here, the only discernable allegation is that LaFear was not granted a 9/80 work schedule. (FAC, {{ 66, 76.) However, the issue appears to be the need to attend doctor’s visits. (FAC, {[42.) There is no allegation that LaFear 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. LaFear Has Failed to State a Claim for Failure to Engage in the Interactive Process Under the FEHA, 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. App.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 DEMURRER TO FIRST AMENDED COMPLAINT (COLA A-M\LaFear-Z2\Dem FAC) ,L LP Su it e 10 5 9 W o o d l a n d Hi ll s, C A 91 36 4 @l 6 5 4 - 9 0 0 0 ) 8 Fa cs im il e (8 18 ) 6 5 4 - 9 0 5 0 ph on e 20 75 0 V e n t u r a B o u l e v a r d Te le L a w Of fi ce s of H a u s m a n & So sa AN Ln W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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.App.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. LaFear alludes to an IPM after the fact (FAC {[27) but fails to state how the County failed to engage in the interactive process. 6. LaFear Has Failed to State a Claim for Failure to Prevent FEHA Discrimination, Harassment and Retaliation 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 a job 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 (“CACTI”) 2527 (2015). La Fear fails to allege elements three and five in the FAC. His FAC 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. LaFear Has Failed to State a Claim for CFRA 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 LP Su it e 10 5 9 W o o d l a n d Hi ll s, C A 91 36 4 @l 6 5 4 - 9 0 0 0 ) 8 Fa cs im il e (8 18 ) 6 5 4 - 9 0 5 0 ph on e 20 75 0 V e n t u r a B o u l e v a r d Te le L a w Of fi ce s of H a u s m a n & So sa AN Ln W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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. App.4th 121, 138. Here, LaFear claims that the County discriminated against him for engaging in activity protected under the FMLA (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 Spakesv. Broward County Sheriffs 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. LaFear failed 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, { 111.) The only claim in the FAC is that LaFear took CFRA leave in November 2015 and when he returned in January 2016 his shift was changed. (FAC, | 15, 16.) Not only is this claim outside the limitations period (it predates December 22, 2016), it is also conclusory and it does not state any facts showing a causal link between a request for leave and an adverse employment action. Accordingly, LaFear’s seventh cause of action is subject to demurrer. 8. LaFear Has Failed to State a Claim for Violation of Lab. 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 of state 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, LaFear 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, LaFear 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) ,L LP Su it e 10 5 9 W o o d l a n d Hi ll s, C A 91 36 4 @l 6 5 4 - 9 0 0 0 ) 8 Fa cs im il e (8 18 ) 6 5 4 - 9 0 5 0 ph on e 20 75 0 V e n t u r a B o u l e v a r d Te le L a w Of fi ce s of H a u s m a n & So sa AN Ln W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LaFear has failed to allege facts suggesting any retaliatory or improper motive or conduct by the County. Rather, LaFear relies on mere inuendo. Furthermore, an employee must exhaust the employer's internal administrative remedies before filing suit under Lab.C. § 1102.5. Campbell v. Regents of Univ. of Calif. (2005) 35 C4th 311, 329-331. Therefore, the eighth cause of action is subject to demurrer. 9. LaFear Has Failed to State a Claim for Lab. Code, § 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...” The allegations 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. “Making 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.App.3d 290, 299. LaFear claims that“as referenced above, [he] complained to the CDCR about continued incidents of harassment due to Plaintiffs disability.” (FAC, 129.) However, paragraph 129 contains the first and only mention of the “CDCR” in the 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 in the FAC 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, Defendant 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 LOS ANGELES 15 DEMURRER TO FIRST AMENDED COMPLAINT (COLA A-M\LaFear-Z2\Dem FAC) ,L LP Su it e 10 5 9 W o o d l a n d Hi ll s, C A 91 36 4 6 5 4 - 9 0 0 0 ) 65 4- 90 50 ) 8 ho ne (8 1 ac ai mi le Si s Te le L a w Of fi ce s of H a u s m a n & So sa F 20 75 0 V e n t u r a B o u l e v a r d AN Ln W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROQF OF SERVICE BY MAIL AND ELECTRONIC MAIL STATE OF CALIFORNIA, COUNTY OF LOS ANGELES I am a resident of the county aforesaid; I am over the age of eighteen years and not a party to the within entitled action; my business address is 20750 Ventura Boulevard, Suite 105, Woodland Hills, CA 91364. On January 2, 2019, I served the within NOTICE OF DEMURRER AND DEMURRER TO FIRST AMENDED COMPLAINT [C.C.P. §430.10]; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF on the interested parties in said action, by placing a true copy thereof enclosed in a sealed envelope with postage thereon fully prepaid, in the United States mail at Woodland Hills, California. Additionally, the parties were served by electronic mail. The electronic transmission report indicated that the transmission was complete and without error. Service was completed as follows: Bradley J. Mancuso, Esq. Attorney for Plaintiff, Jermaine LaFear 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. I declare under penalty of perjury, under the laws of the State of California that the foregoing is true and correct. Foes Hind los Jolyn Stricker 16 DEMURRER TO FIRST AMENDED COMPLAINT (COLA A-M\LaFear-Z2\Dem FAC) 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 without this receipt page and the Reservation ID. ALIFORNIA, COUNTY OF LOS ANGELES ) CASE NO.: BCODO00D ND ) NOTICE OF MOTION AND N ) TO COMPEL ANSWERSTRO righ ) INTERROGATQRIEY ) ) DAT J 020 ) Ee 2:80 pen ) #C 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 judgment creditor). 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 17M
