Tentative Rulings
Case Number: *******0574 Hearing Date: September 8, 2023 Dept: D
TENTATIVE RULING
Calendar: 6
Date: 9/8/2023
Case No: 23 GDCV00574 Trial Date: None Set
Case Name: Ordookhanian v. County of Los Angeles, et al.
DEMURRER
Moving Party: Defendant Ivory Johnson
Responding Party: Plaintiff Adrineh Ordookhanian
RELIEF REQUESTED:
Sustain demurrer to second and ninth causes of action of Complaint
CAUSES OF ACTION: from Complaint
1) Sex/Gender Discrimination
2) Sexual Harassment
3) Retaliation
4) Failure to Prevent Discrimination, Harassment, or Retaliation
5) Violation of the Fair Chance Act
6) Violation of Article 1 section 31 of the California Constitution
7) Wrongful Demotion
8) Negligent Supervision
9) IIED
10) Breach of Contract
SUMMARY OF FACTS:
Plaintiff Adrineh Ordookhanian alleges that she has been an employee of defendant County of Los Angeles (County) for over sixteen years, and in 2016 applied for a promotion within the County’s assessor’s office, for which she was fully qualified. Plaintiff alleges that she scored 96% on the required test and received 100% positive ratings in her interviews, with the only remaining requirement being a background check, which the assessor’s office assigned to defendant Ivory Johnson.
The complaint alleges that during this period, Johnson made overt sexual advances toward plaintiff, which plaintiff politely declined, and Johnson then became more aggressive and overt. Johnson called plaintiff into a series of meetings to discuss her background check, demanding they meet in a remote hallway or in his office with the door closed, and during these closed-door meetings would take off his shoes and sit close to plaintiff, making her uncomfortable. Johnson claimed there was a “problem” with the background check, and that he could “help” or “make the problem go away” if plaintiff would do something for him. Plaintiff alleges that the clear and intended implication was that if plaintiff submitted to defendant’s sexual advances, he would approve her promotion.
Plaintiff alleges that when plaintiff declined, Johnson initiated a sham internal investigation of plaintiff, which resulted in her being denied the promotion and a 30-day suspension without pay.
Plaintiff alleges that time passed and in May of 2022, plaintiff again applied for a promotion. She did so well in her first interview that the assessor’s office dispensed with the requirement for follow-up interviews and conditionally offered her the position. The County then again assigned plaintiff’s background check to Johnson.
The complaint alleges that once again Johnson pretextually vetoes plaintiff’s promotion, rescinding it with the only stated reason being “Disqualification—due to the results of the background review or disclosure.” Plaintiff alleges that defying internal policy, Johnson provided no further explanation for the decision or any documentation reflecting the background check, and that the reasons for the rejection were obvious, as Johnson blocked the promotion based on plaintiff’s sex/gender and due to her refusal to submit to his sexual advances.
Plaintiff also alleges that plaintiff timely appealed the rescission of her job offer and reported ongoing discrimination, harassment and retaliation, but the County did nothing to investigate, issued a series of administrative decisions, and in August of 2022, issued a decision, denying plaintiff’s appeal without giving her the opportunity to respond to Johnson’s allegations, and did nothing to investigate plaintiff’s complaint of harassment, discrimination and retaliation, effectively ratifying that conduct. The complaint alleges that Johnson has engaged in similar conduct toward multiple female colleagues and subordinates, that this conduct is well known to the County, but that it has adopted an informal policy that it will not investigate the allegations or take action against Johnson to prevent the conduct from recurring, facilitating Johnson in continuing the conduct toward female employees.
ANALYSIS:
Second Cause of Action—Sexual Harassment
Defendant Johnson demurs to the causes of action brought against him, arguing that the second cause of action is barred by collateral estoppel and is also time barred.
Defendant does not argue that the second cause of action does not allege all elements of a sexual harassment cause of action.
Defendant argues that the cause of action is barred by collateral estoppel.
To establish claim preclusion under a theory of collateral estoppel, it must be established that the actions arose from the same primary right, that a prior judgment was obtained, and that the matters were actually litigated in the prior action;
“First, the issue sought to be precluded from relitigation must be identical to that decided in the former proceeding. Second, this issue must have been actually litigated in the former proceeding. Third, it must have been necessarily decided in the former proceeding. Fourth, the decision in the former proceeding must be final and on the merits. Finally, the party against whom preclusion is sought must be the same as, or in privity with, the party to the former proceeding.”
Lucido v. Superior Court (1990) 51 Cal.3d 335, 341.
The party asserting collateral estoppel bears the burden of establishing the requirements. Lucido, at 341.
Defendant argues here that the allegations plaintiff is pursuing were the subject of an internal investigation Johnson initiated in 2017, based on plaintiff having told Johnson about a 2011 misdemeanor, which plaintiff went to the Glendale courthouse to try to resolve, and Johnson’s investigation revealed plaintiff had falsified her timesheet by including time she spent at the courthouse addressing the conviction. This action resulted in a denial of the promotion and a suspension without pay, which decision was appealed to the County of Los Angeles Civil Service Commission (CSC), the hearing officer found that plaintiff had made false statements during her background check and falsified her timesheet, and the suspension was sustained, not appealed, and has become final. The argument is that the CSC necessarily found that the reasons for its decisions were legitimate and thus not retaliatory so that plaintiff cannot re-litigate the legitimacy of the County’s reasons for not promoting her and cannot maintain a quid pro quo harassment claim.
However, defendant also concedes that plaintiff’s complaint is based on plaintiff applying for a promotion in 2022, which was also subject to a background check, after the time the 2011 conviction had been expunged and could not be used to deny her promotion. [Complaint, paras. 34-36].
As argued in the opposition, this case is a challenge to the denial of the promotion in 2022, and the pretextual basis for it, and alleges a continuing pattern of conduct on the part of Johnson. [Complaint, paras. 38, 43, 44, 56, 57].
The motion does not argue that there is any decision with respect to the 2022 rescission of the job offer which would operate to collaterally estop plaintiff from re-litigating that wrong. The argument apparently attempts to bootstrap the findings of the previous investigation in 2017 onto the 2022 rescission of the job offer, when that rescission, occurring four years later, could not have been finally decided in that proceeding.
In addition, while the showing suggests that the County was justified at that time in finding a problem with the background of plaintiff, the misdemeanor has since been expunged, so circumstances have changed. Moreover, it is not clear from the showing that any issues of pretextual sexual harassment were necessarily and finally resolved in that initial case, as opposed to the legitimacy of denying the promotion based on a background check. Plaintiff also explains in opposition that in the previous proceeding, the CSC did not consider and was not asked to consider the FEHA claims.
With respect to the rescission of the job offer in 2022, there is no clear argument that any proceedings concerning the second decision with respect to rescinding the job offer give rise to collateral estoppel, that any decision necessarily deciding the current issues has become final, so defendant has failed to meet his burden with respect to collateral estoppel. As argued in the opposition, plaintiff elected not to challenge the 2022 denial through the civil service process, but rather to pursue this lawsuit, which she may choose to do. Ortega v. Contra Costa Community College Dist. (2007) 156 Cal.App.4th 1073, 1083 (“a public employee may choose to ignore statutory civil service remedies for employment discrimination and proceed directly to the courts to obtain relief under FEHA.”).
The demurrer appears to be in the nature of challenging only part of a cause of action, based on the 2017 dispute, which may not be done on demurrer. Kong v. City of Hawaiian Gardens Redevelop. Agency (2003, 2nd Dist.) 108 Cal.App.4th 1028, 1046.
In any case, defendant has failed to meet the burden of establishing the bar of collateral estoppel and the demurrer on this ground is overruled.
Defendant also argues that the cause of action is barred by the one-year statute of limitations pertaining to this claim.
Again, this argument focuses on conduct giving rise to the 2017 claim, not the 2022 claim, which is based on alleged conduct occurring when Johnson was assigned to provide a background evaluation, and his conduct in that pursuit, in discriminating and retaliating against plaintiff on a separate occasion.
The complaint, filed on March 21, 2023, was filed within one year of the rescission of the job offer in July of 2022. There is no statute of limitations issue here, and the demurrer on this ground is overruled.
The demurrer to the second cause of action is overruled.
Ninth Cause of Action—IIED
To state a cause of action for Intentional Infliction of Emotional Distress, plaintiff must plead the following essential elements: Extreme and outrageous conduct with the intention of causing, or reckless disregard of the probability of causing, emotional distress; plaintiff suffered severe or extreme emotional distress; defendant’s outrageous conduct actually and proximately caused emotional distress; the conduct was directed to plaintiff. Christensen v. Superior Court (1991) 54 Cal.3d 868, 903; KOVR-TV, Inc. v. Superior Court (1995) 31 Cal.App.4th 1023, 1028.
Defendant argues that this cause of action also fails because estoppel applies, based on the same argument addressed to the second cause of action. As discussed above, defendant has failed to establish that collateral estoppel applies to the 2022 decision, and the demurrer on this ground is overruled.
Defendant also argues that the pleading fails to sufficiently allege outrageous conduct. Defendant argues that even if plaintiff could prove the demurring defendant engaged in unkind acts toward her, those acts would qualify as mere indignities and bad manners.
As argued in the opposition, it is held that facts stating a cause of action for sexual harassment will also support the outrageous behavior element of a cause of action for IIED. In Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 618, the Second District held:
“Given an employee's fundamental, civil right to a discrimination free work environment ( 12920, 12921), by its very nature, sexual harassment in the workplace is outrageous conduct as it exceeds all bounds of decency usually tolerated by a decent society.
Accordingly, if properly pled, sexual harassment will constitute the outrageous behavior element of a cause of action for intentional infliction of emotional distress…”
Fisher, at 618.
The Second District in Fisher cited Monge v. Superior Court (1986) 176 Cal.App.3d 503, 511, in which the Second District included “deliberate intent on the part of defendants to sexually harass and then to retaliate against plaintiffs” as sufficiently oppressive and in conscious disregard of plaintiff’s rights to support a claim for punitive damages.
In fact, in the case relied upon by defendant, Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, while the Second District observed that discrimination claims arise “out of the performance of necessary management duties,” it went on to expressly note, “[h]arassment… consists of actions outside the scope of job duties which are not of a type necessary to business and personnel management.” Janken, at 63, 65.
The demurrer does not challenge the sufficiency of the sexual harassment cause of action other than on collateral estoppel and statute of limitations grounds. The cause of action accordingly sufficiently supports the extreme and outrageous element of the cause of action for IIED. The demurrer to the IIED cause of action accordingly is overruled.
RULING:
Defendant Ivory Johnson’s Demurrer to Plaintiff’s Complaint is OVERRULED.
Ten days to answer.
DEPARTMENT D IS CONTINUING TO CONDUCT AND ENCOURAGE
AUDIO OR VIDEO APPEARANCES
Please make arrangement in advance if you wish to appear via LACourtConnect/Microsoft Teams by visiting www.lacourt.org to schedule a remote appearance. Please note that LACourtConnect/Microsoft Teams offers free audio and video appearances. However, ADVANCE REGISTRATION IS REQUIRED.
If no appearance is set up through LACourtConnect/Microsoft Teams, or no appearance is otherwise made, then the Court will assume the parties are submitting on the tentative.
