This case was last updated from Los Angeles County Superior Courts on 06/10/2019 at 08:28:29 (UTC).

IAN MAIER VS CITY OF TORRANCE ET AL

Case Summary

On 05/09/2017 IAN MAIER filed a Labor - Other Labor lawsuit against CITY OF TORRANCE. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is SAMANTHA P. JESSNER. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****0550

  • Filing Date:

    05/09/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Labor - Other Labor

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

SAMANTHA P. JESSNER

 

Party Details

Plaintiff and Petitioner

MAIER IAN

Defendants and Respondents

TORRANCE CITY OF

DOES 1 - 100

TORRANCE POLICE DEPARTMENT

BERMUDEZ HECTOR

DEPARTMENT TORRANCE POLICE

Attorney/Law Firm Details

Plaintiff and Petitioner Attorney

HOLGUIN VIDA M. ESQ.

Defendant and Respondent Attorneys

FELLOWS JOHN L.

RAINS LUCIA STERN ST. PHALLE & SILVER

TATIA Y. STRADER

STRADER TATIA Y.

 

Court Documents

NOTICE OF NON-OPPOSITION TO DEFENDANT CITY OF TORRANCE'S MOTION TO EXTEND STAY; DECLARATION OF TATIA Y. STRADER

3/28/2018: NOTICE OF NON-OPPOSITION TO DEFENDANT CITY OF TORRANCE'S MOTION TO EXTEND STAY; DECLARATION OF TATIA Y. STRADER

NOTICE OF RULING

4/12/2018: NOTICE OF RULING

DEFENDANT BERMUDEZ' NOTICE OF JOINDER IN CITY OF TORRANCE'S MOTION TO EXTEND THE STAY OF THE ACTION

5/29/2018: DEFENDANT BERMUDEZ' NOTICE OF JOINDER IN CITY OF TORRANCE'S MOTION TO EXTEND THE STAY OF THE ACTION

PLAINTIFF'S OPPOSITION TO DEFENDANT TORRANCE'S MOTION TO STAY ACTION;ECT.

6/1/2018: PLAINTIFF'S OPPOSITION TO DEFENDANT TORRANCE'S MOTION TO STAY ACTION;ECT.

Minute Order

9/18/2018: Minute Order

PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORETIES IN OPPOS1TION TO DEFENDANT CITY OF TORRANCE DEMURRER TO FIRST AMENDED COMPLAINT.

11/30/2017: PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORETIES IN OPPOS1TION TO DEFENDANT CITY OF TORRANCE DEMURRER TO FIRST AMENDED COMPLAINT.

DEFENDANT CITY OF TORRANCE'S REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF MOTION TO EXTEND STAY

11/9/2017: DEFENDANT CITY OF TORRANCE'S REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF MOTION TO EXTEND STAY

Proof of Service

11/15/2017: Proof of Service

DEFENDANT BERMUDEZ' NOTICE OF JOINDER IN CITY OF TORRANCE'S MOTION TO EXTEND THE STAY OF THE ACTION

11/22/2017: DEFENDANT BERMUDEZ' NOTICE OF JOINDER IN CITY OF TORRANCE'S MOTION TO EXTEND THE STAY OF THE ACTION

NOTICE OF CASE MANAGEMENT CONFERENCE

5/22/2017: NOTICE OF CASE MANAGEMENT CONFERENCE

Unknown

8/23/2017: Unknown

PROOF OF SERVICE

8/25/2017: PROOF OF SERVICE

DECLARATION OF TATIA Y. STRADER IN SUPPORT OF DEFENDANT CITY OF TORRANCE'S DEMURRER TO IAN MAIER'S FIRST AMENDED COMPLAINT

8/25/2017: DECLARATION OF TATIA Y. STRADER IN SUPPORT OF DEFENDANT CITY OF TORRANCE'S DEMURRER TO IAN MAIER'S FIRST AMENDED COMPLAINT

DECLARATION OF TATIA Y. STRADER TN SUPPORT OF DEFENDANT CITY OF TORRANCE'S DEMURRER TO IAN MAIER'S FIRST AMENDED COMPLAINT

8/25/2017: DECLARATION OF TATIA Y. STRADER TN SUPPORT OF DEFENDANT CITY OF TORRANCE'S DEMURRER TO IAN MAIER'S FIRST AMENDED COMPLAINT

Unknown

8/29/2017: Unknown

CIVIL DEPOSIT

8/30/2017: CIVIL DEPOSIT

NOTICE OF CONTINUANCE OF CITY OF TORRANCE'S DEMURRER TO IAN MAIER'S FIRST AMENDED COMPLAINT

9/14/2017: NOTICE OF CONTINUANCE OF CITY OF TORRANCE'S DEMURRER TO IAN MAIER'S FIRST AMENDED COMPLAINT

CITY OF TORRANCE'S REPLY IN SUPPORT OF MOTION TO STAY

9/15/2017: CITY OF TORRANCE'S REPLY IN SUPPORT OF MOTION TO STAY

55 More Documents Available

 

Docket Entries

  • 12/21/2018
  • Notice of Case Reassignment and Order for Plaintiff to Give Notice; Filed by Clerk

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  • 09/18/2018
  • at 08:30 AM in Department 31; Case Management Conference (Conference-Case Management; Matter continued) -

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  • 09/18/2018
  • Minute Order

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  • 09/18/2018
  • Minute order entered: 2018-09-18 00:00:00; Filed by Clerk

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  • 09/05/2018
  • CASE MANAGEMENT STATEMENT

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  • 09/05/2018
  • Case Management Statement; Filed by Plaintiff/Petitioner

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  • 08/24/2018
  • Case Management Statement; Filed by Defendant/Respondent

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  • 08/24/2018
  • CASE MANAGEMENT STATEMENT

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  • 06/29/2018
  • at 08:30 AM in Department 31; Case Management Conference

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  • 06/29/2018
  • Minute order entered: 2018-06-29 00:00:00; Filed by Clerk

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125 More Docket Entries
  • 07/18/2017
  • PROOF OF SERVICE OF SUMMONS

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  • 07/07/2017
  • First Amended Complaint; Filed by Plaintiff/Petitioner

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  • 07/07/2017
  • FIRST AMENDED COMPLAINT FOR DAMAGES: 1. DTSCRIMINATION IN VIOLATION OF FEHA (DISABILITY) (GOV'T CODE 1294O ET SEQ.); ETC

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  • 05/22/2017
  • NOTICE OF CASE MANAGEMENT CONFERENCE

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  • 05/22/2017
  • Notice of Case Management Conference; Filed by Clerk

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  • 05/22/2017
  • ORDER TO SHOW CAUSE HEARING

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  • 05/22/2017
  • OSC-Failure to File Proof of Serv; Filed by Clerk

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  • 05/09/2017
  • COMPLAINT FOR DAMAGES 1. DISCRIMINATION IN VIOLATION OF FEHA (DISABILITY) (GOV'T CODE 1294O ET SEQ);ETC

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  • 05/09/2017
  • SUMMONS

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  • 05/09/2017
  • Complaint; Filed by Ian Maier (Plaintiff)

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Tentative Rulings

Case Number: BC660550    Hearing Date: December 12, 2019    Dept: 31

MOTION FOR DISCOVERY OF PEACE OFFICER PERSONNEL RECORDS IS GRANTED,  IN PART

Background

On May 8, 2017, Plaintiff Ian Maier filed the instant action against Defendants City of Torrance (the “City”); Torrance Police Department; Hector Bermudez; and Does 1 through 100. On November 25, 2019, Plaintiff filed the Second Amended Complaint (“SAC”). The SAC asserts causes of action for: 

  1. Discrimination in Violation of FEHA (Disability) [Gov’t Code §§ 12940 et seq.];

  2. Retaliation in Violation of FEHA [Gov’t Code §§ 12940 et seq.];

  3. Harassment in Violation of FEHA [Gov’t Code §§ 12940 et seq.];

  4. Failure to Prevent Unlawful Discrimination [Gov’t Code §§ 12940 et seq.];

  5. Violation of Constitutional Right to Privacy [Const., Art. 1, § 1]; and

  6. Violation of Public Safety Officers Procedural Bill [Gov’t Code § 3300 et seq.].

    The SAC alleges that Plaintiff began working for the City as a Police Officer in or about July 2012. (SAC ¶ 17.) Plaintiff alleges that during his employment with the City, he filed two workers’ compensation claims, after which the City filed two Internal Affairs (“IA”) investigations against him. (SAC ¶ 19-20.) The SAC alleges that thereafter, the City barred Plaintiff from returning to work following an absence related to his injuries, instead placing him on administrative leave due to the IA. (SAC ¶ 21.) Plaintiff alleges he was then subjected to multiple IA interviews and was eventually issued a Notice of Intent to terminate by the City. (SAC ¶ 22, 24, 27-28.) On or about July 21, 2016, the City proceeded with a Skelly hearing and on or about August 31, 2016, Plaintiff was terminated. (SAC ¶ 29.) 

Legal Standard

[A] party seeking discovery of a peace officer's personnel records must follow a two-step process. [Citation.] First, the party must file a written motion describing the type of records sought, supported by “[a]ffidavits showing good cause for the discovery ..., setting forth the materiality thereof to the subject matter involved in the pending litigation and stating upon reasonable belief that the governmental agency identified has the records or information from the records.” [Citation.] This initial burden is a “relatively relaxed standard [ ].” [Citation.] Information is material if it “‘will facilitate the ascertainment of the facts and a fair trial.’ [Citation.]” [Citations.] “[A] declaration by counsel on information and belief is sufficient to state facts to satisfy the ‘materiality’ component of that section.” [Citation.]

Second, if “the trial court concludes the [criminal] defendant has fulfilled these prerequisites and made a showing of good cause, the custodian of records should bring to court all documents ‘potentially relevant’ to the [criminal] defendant's motion.... The trial court ‘shall examine the information in chambers' [citation], ‘out of the presence and hearing of all persons except the person authorized [to possess the records] and such other persons [the custodian of records] is willing to have present.’... Subject to statutory exceptions and limitations ... the trial court should then disclose to the [criminal] defendant ‘such information [that] is relevant to the subject matter involved in the pending litigation.’ [Citations.]” [Citations.] 

(Haggerty v. Superior Court (2004) 117 Cal.App.4th 1079, 1085-86.)

Discussion

The City moves for an order requiring the disclosure of the following documents from the custodian of records for the City of Torrance and City of Torrance Police Department (“TPD”):

  1. Notice of Intent to Terminate and Notice of Termination that were issued to Plaintiff and all attachments thereto;

  2. Administrative Record of Plaintiff’s appeal of discipline before the City’s Civil Service Commission and City Counsel;

  3. Plaintiff’s Personnel Action Forms;

  4. Plaintiff’s Workers’ Compensation forms and medical information received by the City’s Workers’ Compensation department in connection with Plaintiff’s Workers’ Compensation claims; and

  5. Documents of medical leaves of absence taken or requested by Plaintiff.

The City argues that there is good cause for the City to be permitted to use the subject peace officer personnel records to defend itself against Plaintiffs’ claims. The City asserts that all of the requested materials correspond to allegations in the First Amended Complaint (“FAC”), which was the operative complaint at the time the City filed the instant motion. The City contends that an order that the custodian of records produce the records sought will facilitate the ascertainment of the facts and assist in ensuring a fair trial.

The Court is not persuaded that all of the referenced documents fall within the definition of “personnel records” and thus subject to the requirements for Pitchess discovery. Some of the requested documents are likely to be voluminous and some of the documents might be discoverable with a protective order in place. The parties should address this issue at the hearing.

As to the Notice of Intent to Terminate and Notice of Termination that were issued to Plaintiff, the City argues that the records address the reasons for Plaintiff’s termination and include a report of the underlying IA investigation, including interview records. The City asserts that these records are relevant to Plaintiff’s allegations in the FAC that the City “filed [a] Notice of Intent to terminate” and later terminated Plaintiff’s employment; that the City discriminated and retaliated against him “for exercising his rights to take medical leave;” and that the City “may be liable for unlawful discharge.” (FAC ¶ 25-26, 29, 31.) The City contends that the records are also relevant to Plaintiff’s allegations that the City held an interview with him on or about April 11, 2016, at which Defendant Bermudez was present for the first time and prior to which the City “did not grant access to any tape recordings, transcribed notes or reports” (FAC ¶ 23); and that on or about April 20, 2016, the City “held a ‘follow-up’ IA interview with Plaintiff where over a four-hour period, [the City] repeated questions posed in the April 11, 2016 interview” (FAC ¶ 24).

As to the Administrate Record of Plaintiff’s appeal of discipline before the City’s Civil Service Commission and City Counsel, the City argues that the records contain hearing testimony and exhibits from Plaintiff’s administrative appeals, which address the background and reasons for Plaintiff’s termination. The City asserts that the records are relevant to Plaintiff’s allegations in the FAC in general, including Plaintiff’s allegations that the City discriminated and retaliated against him “for exercising his rights to take medical leave,” that the City “may be liable for unlawful discharge,” and Plaintiff’s allegations regarding the investigation that resulted in his termination. (FAC ¶ 20-26, 29, 31.)

As to Plaintiff’s Personnel Action Forms, the City contends that these records reflect Plaintiff’s wages and work status. The City argues that the records are relevant to Plaintiff’s allegations that the City’s conduct has caused him to “suffer losses in earnings and other employment benefits.” (FAC ¶ 39.)

As to Plaintiff’s Workers Compensation forms and medical information received by the City’s Workers’ Compensation department in connection with Plaintiff’s Workers’ Compensation claims, the City asserts that the records are relevant to Plaintiff’s allegations in the FAC. Specifically, those allegations that the City “filed an Internal Affairs (“IA”) allegations against him” “in response to” Plaintiff suffering a “work-related injury” and filing a Workers’ Compensation claim, and “withdrew its IA allegation” after Plaintiff withdrew his workers’ compensation claim (FAC ¶ 19); and that the City “filed another IA” after Plaintiff “was diagnosed with pneumonia,” discovered that he “acquired an autoimmune disease triggered by pneumonia,” and “filed a second workers’ compensation claim.” (FAC ¶ 20.)

Finally, as to the documents of medical leaves of absence taken or requested by Plaintiff, the City contends that the records are relevant to Plaintiff’s allegations that the City discriminated or retaliated against him in relation to his alleged medical condition(s). (FAC ¶ 29, 31.)

In opposition, Plaintiff argues that the City’s supporting declaration fails to allege sufficient factual allegations to satisfy the good cause and materiality requirements. Plaintiff asserts that the City’s counsel attests to multiple statements based on information and belief without a basis to support the preliminary fact. Plaintiff contends that the declaration also fails to state why the City needs all of Plaintiff’s private records in its defense of Plaintiff’s disability and related harassment claims.

As to the Notice of Intent to Terminate and Notice of Termination, Plaintiff argues that the City only believes that this record is needed. Plaintiff asserts that the records are unrelated to Plaintiff’s disability and related harassment claims against them. Plaintiff contends that the records are unrelated to any aspect of the deficient internal investigations.

As to the Administrative Record of appeal, Plaintiff argues that the City only believes that the record contains certain background information for Plaintiff. Plaintiff asserts that the request as written is overbroad, as the City has requested the entire record of appeal. Plaintiff contends that additionally, the City plans on taking Plaintiff’s deposition and have requested written discovery which would seem to be duplicative of this information.

As to Plaintiff’s Personnel Action Forms, Plaintiff again argues that the City only believes that the record contains wage information. Plaintiff asserts that the City plans on taking Plaintiff’s deposition and have requested the same written discovery there. As to Plaintiff’s Workers’ Compensation Files, Plaintiff contends that the request is overbroad as Plaintiff’s Workers’ Compensation claims are not relevant to Plaintiff’s disability and related harassment claims against the City. Finally, as to Plaintiff’s Leave of Absence documents, Plaintiff argues that the request is overboard as it seeks all leave of absence documents, not just those related to Plaintiff’s claims of discrimination her his first and fourth causes of action. 

The Court finds that the Declaration of Amitz Katzir adequately sets forth good cause for the discovery sought and has set forth the materiality of the discovery to the subject matter involved in this action. Despite Plaintiff’s arguments to the contrary, the City has adequately demonstrated the relevance of the documents by pointing to allegations in the complaint. As to Plaintiff’s arguments that the requests are overbroad, the Court finds that Plaintiff’s arguments are premature. At this point in time, the Court is not determining what information will be released, only that Defendant has sufficiently shown good cause to justify an in camera review of those personnel documents subject to the requirements for a Pitchess discovery. As noted above, the initial burden is a relatively relaxed standard, which the City has met here. Finally, as to Plaintiff’s arguments that the requested documents are duplicative of the City’s requests to Plaintiff, the Court finds that there has been no showing that the documents to be produced by Plaintiff at his deposition are the same documents the City is seeking disclosure of here. Moreover, such arguments are premature, as the Court will determine at the in camera review of personnel documents what documents, if any, should be disclosed.

Based on the foregoing, the Court finds that the City has satisfied the first prong of the Pitchess motion, justifying the discovery of those documents which qualify as personnel records. The Court will confer with counsel to schedule a date for the review at the hearing.

Moving party to give notice.

Case Number: BC660550    Hearing Date: November 04, 2019    Dept: 31

DEMURRER IS SUSTAINED IN PART, OVERRULED IN PART.

Background

On May 8, 2017, Plaintiff Ian Maier filed the instant action against Defendants City of Torrance (the “City”); Torrance Police Department; Hector Bermudez; and Does 1 through 100. On July 7, 2017, Plaintiff filed the First Amended Complaint (“FAC”). The FAC asserts causes of action for:

  1. Discrimination in Violation of FEHA (Disability) (Gov’t Code §§ 12940 et seq.);

  2. Retaliation in Violation of FEHA (Gov’t Code §§ 12940 et seq.);

  3. Harassment in Violation of FEHA (Gov’t Code §§ 12940 et seq.);

  4. Failure to Prevent Unlawful Harassment and Discrimination (Gov’t Code §§ 12940 et seq.);

  5. Injunctive and Declaratory Relief (CCP § 526);

  6. Violation of Confidentiality of Medical Information Act (Civil Code §§ 56 et seq.);

  7. Violation of Constitutional Right to Privacy (Cons. Art. 1, § 1.);

  8. Negligent Misrepresentation; and

  9. Violation of Public Officers Procedural Bill (Gov’t Code § 3300 et seq.).

On September 22, 2017, the Court granted the City’s Motion to Stay and Bermudez’s Joinder in City’s Motion to Stay pending the outcome of the Torrance Civil Service Commission’s proceedings pertaining to the review of Plaintiff’s termination. On December 6, 2017, the Court granted the City’s Motion to Extend Stay. On April 6, 2018, the Court again granted the City’s Motion to Extend Stay and Bermudez’s Joinder in the City’s Motion to Extend Stay. On June 14, 2018, the Court granted the City’s Motion to Extend Stay and Bermudez’s Joinder in the City’s Motion to Extend Stay, this time pending the outcome of Plaintiff’s writ of mandamus. On September 3, 2019, the Court lifted the stay and set trial for August 31, 2020.

On September 19, 2019, the City filed its demurrer to the FAC and Bermudez filed his Joinder to the City’s demurrer to Plaintiff’s third cause of action in the FAC.

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. (Wilson v. Transit Authority of City of Sacramento (1962) 199 Cal.App.2d 716, 720-21.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleading alone, and not on the evidence or facts alleged.” (E-Fab, Inc. v. Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.) As such, the court assumes the truth of the complaint’s properly pleaded or implied factual allegations. (Id.) However, it does not accept as true deductions, contentions, or conclusions of law or fact. (Stonehouse Homes LLC v. City of Sierra Madre (2008) 167 Cal.App.4th 531, 538.)

Discussion

The City demurs to the third through ninth causes of action. Bermudez joins in the City’s demurrer to the third cause of action for harassment in violation of FEHA.

Third Cause of Action for Harassment in Violation of FEHA

To establish a claim for harassment, a plaintiff must demonstrate that: (1) she is a member of a protected group; (2) she was subjected to harassment because she belonged to this group; and (3) the alleged harassment was so severe that it created a hostile work environment. (See Aguilar v. Avis Rent A Car Sys., Inc. (1999) 21 Cal.4th 121.)

“[T]he harassment complained of must be “sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment. . . . ” [Citation.] “The plaintiff must prove that the defendant's conduct would have interfered with a reasonable employee's work performance and would have seriously affected the psychological well-being of a reasonable employee and that she was actually offended.” [Citation.] “[H]arassment cannot be occasional, isolated, sporadic, or trivial[;] rather the plaintiff must show a concerted pattern of harassment of a repeated, routine or a generalized nature. [Citation.]” [Citation.]” (Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 130-131.) “[A]n employee seeking to prove . . . harassment based on no more than a few isolated incidents of harassing conduct must show that the conduct was “severe in the extreme.” [Citation.]” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1043.)

“[C]ommonly necessary personnel management actions such as hiring and firing, job or 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. These are actions of a type necessary to carry out the duties of business and personnel management. These actions may retrospectively be found discriminatory if based on improper motives, but in that event the remedies provided by the FEHA are those for discrimination, not harassment. Harassment, by contrast, consists of actions outside the scope of job duties which are not of a type necessary to business and personnel management.” (Reno v. Baird (1998) 18 Cal.4th 640, 646-647.)

The City and Bermudez (hereinafter collectively referred to as “Defendants”) demur to the third cause of action for harassment on the grounds that Plaintiff has failed to allege facts sufficient to state a cause of action. Defendants argue that the FAC alleges that Plaintiff was the subject of three Internal Affairs (“IA”) investigations; was placed on administrative leave due to the second IA investigation; underwent three interviews as part of those investigations; and was ultimately terminated. Defendants assert that none of these alleged actions could reasonably constitute harassing conduct that created a hostile or abusive work environment under FEHA because Plaintiff has merely pled that he was subjected to personnel management actions, which as a matter of law are not forms of actionable harassment.

Defendants contend that the fact of investigation and interviews, the administrative leave imposed and the termination do not support a showing that the alleged harassment was sufficiently severe or pervasive to amount to a change in the terms and conditions of employment and thus creating an abusive working environment. Defendants argue that these alleged actions may have directly changed the terms and conditions of Plaintiff’s employment in that they involved Plaintiff being placed on administrative leave and being terminated, but this does not equate to a change in Plaintiff’s employment resulting from harassment, nor do the alleged actions amount to an abusive working environment.

Plaintiff’s opposition does not address these arguments beyond stating that the demurrer should be overruled.

The Court finds that the FAC fails to allege facts sufficient to state a cause of action for harassment in violation of FEHA. As noted above, personnel management actions do not come within the meaning of harassment. Here, Plaintiff alleges that he was subjected to three IA investigations (FAC ¶ 19-20, 22-24), was placed on administrative leave due to the second IA investigation (FAC ¶ 21); and was ultimately terminated (FAC ¶ 25-26). All of these alleged actions are of a type necessary to carry out the duties of business and personnel management. Accordingly, Plaintiff has failed to allege facts sufficient to state a cause of action for harassment.

Based on the foregoing, Defendants’ demurrer to the third cause of action for harassment in violation of FEHA is SUSTAINED with leave to amend.

Fourth Cause of Action for Failure to Prevent Harassment and Discrimination

“‘[T]here's no logic that says an employee who has not been [harassed] can sue an employer for not preventing [harassment] that didn't happen, for not having a policy to prevent [harassment] when no [harassment] occurred . . . ’ Employers should not be held liable to employees for failure to take necessary steps to prevent such conduct, except where the actions took place and were not prevented.” (Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th 280, 289.)

The City demurs to the fourth cause of action for failure to prevent harassment and discrimination on the grounds that because Plaintiff fails to plead a cause of action for FEHA harassment, his claim for failure to prevent harassment under FEHA is likewise invalid.

While the Court agrees with the City, a demurrer does not lie to only part of a cause of action. (Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 163.) Because the fourth cause of action addresses the City’s failure to prevent harassment and discrimination, the Court cannot sustain the demurrer as to only a part of it.

Based on the foregoing, the City’s demurrer to the fourth cause of action is OVERRULED.

Fifth Cause of Action for Injunctive and Declaratory Relief

“Labor Code section 132a extends certain civil rights protections to employees who are injured in the course of their employment. The statute first declares it is the “policy of this state that there should not be discrimination against workers who are injured in the course and scope of their employment.” (Lab.Code, § 132a.) The statute makes it a misdemeanor for an employer to discharge or discriminate against an employee who files a claim for workers' compensation. It also awards an employee who was subject to such discrimination reinstatement, reimbursement of lost wages, an increase in compensation, and expenses. (Lab.Code, § 132a, subd. (1).)

The statute grants to the Workers’ Compensation Appeals Board (WCAB) jurisdiction to remedy violations. To seek reinstatement and recover lost wages, the employee initiates proceedings by filing a petition with the WCAB. The statute vests the WCAB “with full power, authority, and jurisdiction to try and determine finally all matters specified in this section subject only to judicial review, except that the appeals board shall have no jurisdiction to try and determine a misdemeanor charge.” (Lab.Code, § 132a.) Obviously, a trial court has no jurisdiction to hear a civil cause of action for an employer's breach of Labor Code section 132a.” (Dutra v. Mercy Medical Center Mt. Shasta (2012) 209 Cal.App.4th 750, 754-755.)

The City demurs to the fifth cause of action for injunctive and declaratory relief on the grounds that injunctive and declaratory relief are equitable remedies, not causes of action. The City argues that because Plaintiff seeks to plead a cause of action that does not exist, his claim for injunctive and declaratory relief cannot be cured by amendment. The City further asserts that additionally, this cause of action is barred in this forum as a matter of law because of a lack of jurisdiction. The City contends that the WCAB has exclusive jurisdiction to adjudicate all claims under Labor Code section 132a.

Plaintiff does not address the merits of the demurrer in his opposition.

The Court finds that Plaintiff fails to allege facts sufficient to state a cause of action for injunctive and declaratory relief. Here, Plaintiff’s cause of action is based on the City’s alleged “illegal practice of retaliating against employees for filing workers compensation claims in violation of Labor Code § 132a.” (Complaint ¶ 62.) As noted above, the Workers’ Compensation Appeals Board has jurisdiction to remedy violations and a trial court has no jurisdiction to hear a civil cause of action for an employer’s breach of Labor Code section 132a.

Based on the foregoing, the City’s demurrer to the fifth cause of action for injunctive and declaratory relief is SUSTAINED without leave to amend.

Sixth Cause of Action for Violation of Confidentiality of Medical Information Act

“[I]in order to violate the [Medical Information Act], a provider of health care must make an unauthorized, unexcused disclosure of privileged medical information. A provider is relieved from liability under the act if it can show that the disclosure is excepted either by the mandatory (§ 56.10, subd. (b)) or permissive (§ 56.10(c)(4)) provisions of the act, allowing disclosure of medical information under specified circumstances.” (Heller v. Norcal Mutual Ins. Co. (1994) 8 Cal.4th 30, 38.)

The City demurs to the sixth cause of action for violation of confidentiality of Medical Information Act, arguing that Plaintiff’s FAC does not support a violation by the City since Plaintiff does not assert that the City is a “provider of healthcare,” nor could he. The City asserts that accordingly, Plaintiff has not set forth a viable legal theory to maintain a Medical Information Act claim against the City.

Plaintiff’s opposition does not address the merits of this demurrer.

The Court finds that Plaintiff has failed to allege facts sufficient to state a cause of action for violation of confidentiality of Medical Information Act. As noted above, in order to violate the Medical Information Act, a provider of health care must be the one to make an unauthorized, unexcused disclosure of privileged medical information. Here, Plaintiff has failed to allege and cannot allege that the City is a provider of health care.

Based on the foregoing, the City’s demurrer to the sixth cause of action for violation of confidentiality of Medical Information Act is SUSTAINED without leave to amend.

Seventh Cause of Action for Violation of Constitutional Right to Privacy

“[A] plaintiff alleging an invasion of privacy in violation of the state constitutional right to privacy must establish each of the following: (1) a legally protected privacy interest; (2) a reasonable expectation of privacy in the circumstances; and (3) conduct by defendant constituting a serious invasion of privacy.” (Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 39-40.)

The City demurs to the seventh cause of action for violation of constitutional right to privacy on the grounds that Plaintiff’s complaint is devoid of any factual allegations that supports the third element: conduct by the City constituting a serious invasion of privacy. The City argues that other than allegedly being the recipient of information, there is no reference to any conduct by the City, let alone conduct that could constitute a serious invasion of Plaintiff’s privacy.

The Court finds that Plaintiff has failed to allege facts sufficient to state a cause of action for violation of the constitutional right to privacy, as Plaintiff has failed to allege conduct by the City constituting a serious invasion of privacy. The FAC alleges that “[i]n or about April 2017, [the City] revealed to Plaintiff that a doctor reviewed his medical information and disclosed some of Plaintiff’s medical information to a Torrance Police Department officer who was/is not involved in the evaluation of Plaintiff’s workers’ compensation claim and which medical information was not relevant to Plaintiff’s workers’ comp. claim. It was further revealed that after the release of this information, [the City] proceeded with its second IA against Plaintiff resulting in his termination.” (FAC ¶ 27.) The FAC further alleges that “[a]lthough Plaintiff previously authorized his medical providers to release information, that authorization for a release of his medical information to a specific entity (RSP & Associates) for a specific service (review/comment) regarding his medical records pertaining to his workers’ compensation claim. The authorization specifically provided that RSP Associates could not “lawfully further use or disclose the health information unless another authorization is obtained” from Plaintiff. No other authorization was obtained.” (FAC ¶ 28.) These allegations do not allege conduct by the City relating to Plaintiff’s alleged invasion of privacy aside from the City’s receipt of the information. Although Plaintiff alleges that after the receipt of medical information, the City proceeded with its second IA against Plaintiff, Plaintiff fails to allege that the receipt of the medical information was in any way connected to the second IA or that the medical information was used in connection with the second IA.

Based on the foregoing, the City’s demurrer to the seventh cause of action for violation of constitutional right to privacy is SUTAINED with leave to amend.

Eighth Cause of Action for Negligent Misrepresentation

Government Code section 818.8 provides “[a] public entity is not liable for an injury caused by misrepresentation by an employee of the public entity, whether or not such misrepresentation be negligent or intentional.”

The City demurs to the eighth cause of action for negligent misrepresentation on the grounds that because the City is a public entity, no liability could result from this cause of action. The City further attests to the fact that during its counsel’s meet and confer with Plaintiff’s counsel on October 25, 2019, Plaintiff counsel represented that Plaintiff would voluntarily dismiss the eighth cause of action for negligent misrepresentation. (Katzir Decl. ¶ 4.)

The Court finds that Plaintiff has failed to allege facts sufficient to state a cause of action for negligent misrepresentation. The FAC alleges that “[the City] is a public entity which owned, controlled, and operated the law enforcement agency known as [the Torrance Police Department].” (FAC ¶ 5.) As a public entity, the City is immune from liability for an injury caused by misrepresentation by an employee of the public entity under Section 818.8.

Based on the foregoing, the City’s demurrer to the eighth cause of action for negligent misrepresentation is SUSTAINED without leave to amend.

Ninth Cause of Action for Violation of Public Officers Procedural Bill

“A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616.) “In general, ‘demurrers for uncertainty are disfavored, and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.’” (Lickiss v. Financial Industry Regulatory Authority (2012) 208 Cal.App.4th 1125, 1135.)

The City demurs to the ninth cause of action for violation of Public Officers Procedural Bill, asserting that Plaintiff fails to identify what provisions of the Public Officers Procedural Bill of Rights Act (“POBRA”) the City allegedly violated. The City contends that Government Code section 3303 contains ten subdivisions and section 3309.5 applies only where there is an underlying POBRA violation. The City argues that Plaintiff cannot attempt to plead a cause of action without identifying the legal grounds for it. The City asserts that to the extent Plaintiff is claiming that violations of multiple sections occurred, he must plead such through separate causes of action.

The Court agrees with the City and finds that the ninth cause of action is uncertain. Here, the FAC alleges that “Plaintiff is informed and believes, and thereupon alleges that defendants, as part of the internal affairs investigation were in possession and control of other reports and complaints (written by the investigators and/or others), including, but not limited to recordings and notes.” (FAC ¶ 86.) “Defendants, and their agents, employees, and/or representatives are believed to have intentionally violated Plaintiff’s rights under Government Code § 3300, et seq., including but not limited to Government Code §§ 3303 and 3309.5.” (FAC ¶ 88.) By failing to identify what provisions the City allegedly violated, Plaintiff has rendered the pleading so incomprehensible and uncertain that the City cannot reasonably respond.

Based on the foregoing, the City’s demurrer to the ninth cause of action for violation of Public Officers Procedural Bill is SUSTAINED with leave to amend.

Conclusion

Defendants’ demurrer to the third cause of action is SUSTAINED with 20 days’ leave to amend. The City’s demurrer to the fourth cause of action is OVERRULED. The City’s demurrer to the seventh and ninth causes of action is SUSTAINED with 20 days’ leave to amend. The City’s demurrer to the fifth, sixth, and eighth causes of action is SUSTAINED without leave to amend.

Moving party to give notice.

Case Number: BC660550    Hearing Date: October 25, 2019    Dept: 31

DEMURRER IS CONTINUED TO NOVEMBER 4, 2019.

demurrer is CONTINUED to November 4, 2019 at 8:30 am. CCP section 430.41 requires the demurring party to meet and confer in person or by telephone with the party who filed the pleading before filing a demurrer. (See Code Civ. Proc., § 430.41(a).) Defendants have failed to file a declaration demonstrating satisfaction of meet and confer efforts pursuant to CCP section 430.41. While Defendants indicate that they initially met and conferred prior to filing the original demurrer filed on August 28, 2017, more than two years have passed since that time. Accordingly, Defendants are ordered to meet and confer with Plaintiff in person or by telephone and file a declaration regarding such efforts by October 31, 2019.

Moving party to give notice.