Tentative Rulings
Case Number: *******1245 Hearing Date: November 16, 2022 Dept: 49
Enrique Curioso, et al., v. County of Los Angeles, et al.
DEMURRER TO COMPLAINT
MOVING PARTY: Defendant County of Los Angeles (erroneously sued as Los Angeles County Department of Public Works)
RESPONDING PARTY(S): Plaintiffs Enrique Curioso, Steven Irving, Hatuey Jalisco, Konstantin Toporkov, and Rodrigo Palma
STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:
Plaintiffs Enrique Curioso, Steven Irving, Hatuey Jalisco, Konstantin Toporkov, and Rodrigo Palma bring this action against Defendants County of Los Angeles and the Los Angeles County Department of Public Works. Plaintiffs allege they each worked for the County and its third-party vendor, American Airports Corporation. In mid 2021, the County informed American Airports Corporation that it would take over the management of its own airports, and invited Plaintiffs to apply to retain their employment positions. Plaintiffs, all of whom are aged 40 or older, allege they applied to retain their positions, but that Defendants instead hired or retained younger employees. Plaintiffs bring causes of action for (1) Age Discrimination, (2) Failure to Hire, (3) National Origin Discrimination, (4) Failure to Take Steps to Prevent Discrimination, and (5) Wrongful Termination.
Defendant County now demurs to all five causes of action in the Complaint. Plaintiffs opposed.
TENTATIVE RULING:
Defendant’s Demurrer to the Second and Third Causes of Action is SUSTAINED. Whether leave to amend will be granted shall be determined at the hearing.
Defendant’s Demurrer to the First, Fourth, and Fifth Causes of Action is OVERRULED.
If leave to amend is neither requested nor granted, Defendant must file an Answer to the Complaint, consistent with this ruling, within 21 days.
Moving party to give notice, unless waived.
DISCUSSION:
Demurrer
Meet and Confer
The Declaration of Attorney Jennie Raphelt reflects that the meet and confer requirement was met. (CCP 430.41.)
Legal Standard
A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal. App. 4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal. App. 4th 1216, 1228.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or by proper judicial notice. (CCP 430.30(a).) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. (SKF Farms v. Superior Court (1984) 153 Cal. App. 3d 902, 905.) Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (Id.) The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action. (Hahn, 147 Cal.App.4th at 747.)
Analysis
A. First Cause of Action (Age Discrimination)
Defendant demurs to the First Cause of Action for age discrimination, arguing it fails to state facts to constitute a cause of action, is uncertain, and lists duplicative causes of action. Defendants argue that Plaintiffs have “combined multiple causes of action under their corresponding cause of action for Age Discrimination[,]” by “using numerous protective bases to allege multiple and separate avenues of liability for discrimination that are inapplicable to Plaintiffs' factual allegations.” (Dem. 6: 6-8.) Defendant’s main issue is that the cause of action for age discrimination also alleges violations of Government Code sections 12940(c),(d),(h),(j), and (k), which Defendant says “ha[ve] their own distinct requirements.” (Dem. 6: 17.)
“In order to make out a prima facie case of age discrimination under FEHA, a plaintiff must present evidence that the plaintiff (1) is over the age of 40; (2) suffered an adverse employment action; (3) was performing satisfactorily at the time of the adverse action; and (4) suffered the adverse action under circumstances that give rise to an inference of unlawful discrimination, i.e., evidence that the plaintiff was replaced by someone significantly younger than the plaintiff.” (Sandell v. Taylor-Listug, Inc. (2010) 188 Cal. App. 4th 297, 321.)
Plaintiffs allege they were “over 40 years of age when they were terminated from their jobs for county airports and not retained/rehired”; that they “were qualified and competent employees”; and that “Defendants failed to retain/rehire Plaintiffs by favoring to hire/retain persons who were/are significantly younger, including being below the age of 40.” (Compl. 26, 27, 28.) Plaintiffs further allege that this conduct “constitute[s] violations of the Fair Employment and Housing Act, Government Code section 12940, subdivisions (a), (c), (d), (h), (j), and (k), in that the defendants, and each of them, did discriminate against Plaintiffs on the basis of their age, especially because defendants had a preference to employ, and to replace employees, with individuals who were younger than 40 years of age.” (Id. 30.)
Although Plaintiffs’ inclusion of miscellaneous FEHA code sections within the first cause of action is certainly disfavored, it does not render the pleading uncertain. The cause of action’s title, as well as the specific allegations within, indicate that the cause of action is based on age discrimination under section 12940, subdivision (a). The court reads the additional allegations as Plaintiffs’ attempt to add context to the age discrimination claim—but not to assert separate or additional causes of action entirely. “[D]emurrers for uncertainty are disfavored,” and are strictly construed “because ambiguities can reasonably be clarified under modern rules of discovery.” (Lickiss v. Fin. Indus. Regul. Auth., (2012) 208 Cal. App. 4th 1125, 1135.) (See Ameron Internat. Corp. v. Insurance Co. of State of Pennsylvania (2010) 50 Cal.4th 1370, 1386 [in characterizing pleadings, it is policy to emphasize substance over form].)
As to the sufficiency of the allegations, Plaintiffs have adequately alleged that each of them were over the age of 40; that they suffered an adverse employment action; that they were performing satisfactorily at the time of the adverse action; and that they were replaced by someone significantly younger. (Compl. 26, 27, 28; See Sandel, supra, 188 Cal. App. 4th at 321.) “A demurrer accepts as true all well pleaded facts” in the Complaint. (Fox v. JAMDAT Mobile, Inc., 185 Cal. App. 4th 1068, 1078.) Thus, Plaintiffs have adequately pled a cause of action for FEHA age discrimination—nothing more, and nothing less.
Accordingly, Defendant’s Demurrer to the First Cause of Action is OVERRULED.
B. Second Cause of Action (Failure to Hire) and Fifth Cause of Action (Wrongful Termination)
Defendant next argues that the Second Cause of Action for failure to hire and Fifth Cause of Action for wrongful termination fail because Plaintiffs have not identified a statutory basis for the claim. There is “no common law tort liability for public entities in California; instead, such liability must be based on statute.” (Cnty. of Santa Clara v. Superior Ct. (2022) 77 Cal. App. 5th 1018, 1028.)
As a basis for the Second Cause of Action, Plaintiffs’ Complaint only cites Article 1, Section 8 of the California Constitution. (Compl. 40.) In opposition, Plaintiffs also argue the claim is also based on the FEHA, which imposes “a mandatory duty…not to discriminate in employment.” (Opp. 16: 16-17.) However, such a basis does not appear in the Complaint. Moreover, Plaintiffs have presented no authority permitting a “failure to hire” cause of action against a public entity; likewise, Plaintiffs have presented no authority allowing a Plaintiff to base such a claim on the California Constitution.
Accordingly, Defendant’s Demurrer to the Second Cause of Action is SUSTAINED.
Generally speaking, leave to amend must be allowed where there is a reasonable possibility of successful amendment. Goodman v. Kennedy (1976) 18 Cal.3d 335, 348. Plaintiffs must demonstrate this possibility at the hearing. If they do not, no leave to amend will be given.
As for the Fifth Cause of Action, however, Plaintiffs expressly base the claim on “Section 8 of the California Constitution and California Government Code, section 12920, et. seq., and Title VII.” (Compl. 63 [emphasis added].) And while Defendant contends “it is already settled law that these are not authorized statutes by which a public entity may be sued,” Defendant does not cite any authority in support of this sweeping contention.
Thus, because the Fifth Cause of Action is expressly based on section 12920 et seq., the claim is not barred by the Government Code. “FEHA expressly makes public employers, like private employers, directly liable for violations of that law, including age discrimination. Section 12926, which defines various terms used in the FEHA statutory scheme, provides that the term ‘[e]mployer includes ... the state or any political or civil subdivision of the state, and cities ....’ ( 12926, subd. (d), italics added.)” Inclusion of that language “constitutes an express declaration of the Legislature's intent to subject public entities to liability for violations of FEHA.” (DeJung v. Superior Ct. (2008) 169 Cal. App. 4th 533, 545–46.)
Accordingly, Defendant’s Demurrer to the Fifth Cause of Action is OVERRULED.
C. Third Cause of Action (National Origin Discrimination)
Defendant argues that “Plaintiffs make no mention of experiencing discrimination based on national origin or any other discrimination claim not related to age.” (Dem. 8: 19-20.) The Third Cause of Action is asserted by Plaintiffs Curioso and Toporkov only. Plaintiffs, who are Peruvian and Russian, respectively, allege they “were not retained/hired by the County in part because” of their national origins. (Compl. 51, 53.)
Here, unlike the claim for age discrimination (First Cause of Action) in which Plaintiffs could allege that Defendant favored younger employees—an allegation which, at least supports an inference that Plaintiffs’ age played a role in the hiring decision—the Third Cause of Action contains no factual allegations even suggesting that Plaintiffs’ national origin played any role in the adverse employment action. Plaintiffs’ conclusory allegation that Defendant “did discriminate against Plaintiffs Curioso and Toporkov on the basis of their national origin” is insufficient. (Id. 53.)
Accordingly, Defendant’s Demurrer to the Third Cause of Action is SUSTAINED.
Generally speaking, leave to amend must be allowed where there is a reasonable possibility of successful amendment. Goodman v. Kennedy (1976) 18 Cal.3d 335, 348. Plaintiff(s) must demonstrate this possibility at the hearing. If he or they do not, no leave to amend will be given.
D. Fourth Cause of Action (Failure to Take Steps to Prevent Discrimination)
Defendant’s only argument in support of its Demurrer to the Fourth Cause of Action is that “[b]ecause Plaintiffs have failed to allege a cause of action for discrimination, harassment, or
Retaliation,” they “have also failed to allege causes of action for failure to prevent” the same. However, as discussed in section “A”, above, Plaintiffs have adequately pled a claim for age discrimination.
Accordingly, Defendant’s Demurrer to the Fourth Cause of Action is OVERRULED.
Moving party to give notice, unless waived.
IT IS SO ORDERED.
Dated: November 16, 2022
Randolph M. Hammock
Judge of the Superior Court
Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept49@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.
