RUTH WISE VS LOS ANGELES UNIFIED SCHOOL DISTRICT

Tentative Rulings

Case Number: *******4860 Hearing Date: September 20, 2022 Dept: 30

Dept. 30

Calendar No.

Wise vs. Los Angeles Unified School District, et. al., Case No. *******4860

Tentative Ruling re: Defendant’s Demurrer to Second Amended Complaint

Defendant Los Angeles Unified School District (Defendant) demurs to the Second Amended Complaint (SAC) of Plaintiff Ruth Wise (Plaintiff). The demurrer is overruled.

In reviewing the legal sufficiency of a complaint against a demurrer, a court will treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions, or conclusions of law. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318 (Blank); C & H Foods Co. v. Hartford Ins. Co. (1984) 163 Cal.App.3d 1055, 1062.) It is well settled that a “demurrer lies only for defects appearing on the face of the complaint[.]” (Stevens v. Superior Court (1999) 75 Cal.App.4th 594, 601.) “The rules by which the sufficiency of a complaint is tested against a general demurrer are well settled. We not only treat the demurrer as admitting all material facts properly pleaded, but also give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.” (Guclimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38 (internal quotes omitted).) For purposes of ruling on a demurrer, the complaint must be construed liberally by drawing reasonable inferences from the facts pleaded. (Wilner v. Sunset Life Ins. Co. (2000) 78 Cal.App.4th 952, 958.)

When ruling on a demurrer, the Court may only consider the complaint’s allegations or matters which may be judicially noticed. (Blank, supra, 39 Cal.3d at p. 318.) The Court may not consider any other extrinsic evidence or judge the credibility of the allegations plead or the difficulty a plaintiff may have in proving his allegations. (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881.) A demurrer is properly sustained only when the complaint, liberally construed, fails to state facts sufficient to constitute any cause of action. (Kramer v. Intuit Inc. (2004) 121 Cal.App.4th 574, 578.)

The SAC asserts two causes of action against Defendant under FEHA for (1) Disability Discrimination, and (2) Failure to Prevent Discrimination.

The SAC alleges that Plaintiff has been employed with Defendant and its schools as a teacher since November 2006. (SAC 7.) Beginning in 2015, Plaintiff began work as a substitute teacher at various elementary schools within Defendant’s district, and received praise for her job performance. (SAC 8.) In July 2019, Plaintiff began work as a middle-school English teacher at Westside Global Awareness Magnet (WGAM). (SAC 10.)

Plaintiff alleges that she suffered from clinical depressive disorder, anxiety, and post-traumatic stress disorder (PTSD) that affected her major life activities. (SAC 12.) Plaintiff was diagnosed with those conditions in January 2020, and was required by her doctor to take a medical leave of absence to recover from January 23, 2020, through March 13, 2020. (SAC 13.) Plaintiff returned to work at WGAM without restrictions on March 16, 2020. (SAC 15.) Around a month later, on April 30, Plaintiff received a Below Standard Evaluation in a meeting with the assistant principal and others. This was Plaintiff’s first negative evaluation in her career with Defendant. (SAC 16.) On May 21, 2020, Plaintiff received a Notice of Non-Reelection from Defendant’s Director of Employee Relations, stating that Defendant had decided not to reelect Plaintiff for her position for the succeeding school year. (SAC 18.) Plaintiff later filed a successful grievance to change the April 2020 Evaluation from “Below Standard” to “Meets Standard,” but when Plaintiff then filed another grievance to overturn the Notice of Non-Reelection, which had been based on the inaccurate evaluation, Defendant refused to allow a meeting on the basis that Plaintiff was no longer an employee. (SAC 22-24.)

Plaintiff alleges that Defendant’s decision to terminate Plaintiff’s employment was done due to her clinical depressive disorder, anxiety, and PTSD, “in order to avoid the perceived probability of accommodating any anticipated future additional medical leave(s) and any other accommodations.” (SAC 29.) It is alleged that “Defendant provided a false and pretextual reason for terminating Plaintiff’s employment in an effort to hide their true illegal reasons for terminating Plaintiff’s employment.” (SAC 30.)

First Cause of Action for Disability Discrimination

To survive demurrer, a plaintiff alleging a discrimination claim under FEHA “[m]ust plead the prima facie elements of employment discrimination specified in McDonnell Douglas [411 U.S. 792].” (Caldwell v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 203 fn 7.) That is, the complaint must allege “that: (1) Plaintiff suffers from a disability; (2) Plaintiff is otherwise qualified to do his job; and (3) Plaintiff was subjected to an adverse employment action because of his disability.” (Alejandro v. ST Micro Electronics, Inc (N.D. Cal. 2015) 129 F.Supp.3d 898, 907.)

“[T]he touchstone of a qualifying handicap or disability is an actual or perceived physiological disorder which affects a major body system and limits the individual's ability to participate in one or more major life activities.” (Bagatti v. Department of Rehabilitation (2002) 97 Cal.App.4th 344, 353.) FEHA defines a mental disability as “[h]aving any mental or psychological disorder or condition, such as intellectual disability, organic brain syndrome, emotional or mental illness, or specific learning disabilities, that limits a major life activity.” (Id. 12926, subd. (j)(1).) “A mental or psychological disorder or condition limits a major life activity if it makes the achievement of the major life activity difficult.” (Id. 12926, subd. (j)(1)(B).) “Major life activities” under FEHA are broadly construed and include “physical, mental, and social activities and working.” (Id. 12926, subd. (j)(1)(C).)

Defendant demurs to Plaintiff’s cause of action for disability discrimination under FEHA on the grounds that Plaintiff was notified of her non-re-election prior to her leave of absence, and therefore the decision to terminate Plaintiff could not have been because of Plaintiff’s disabilities.

Defendant requests judicial notice of Plaintiff’s responses to requests for admissions. “[A] court may take judicial notice of a party's admissions or concessions, but only in cases where the admission ‘can not reasonably be controverted,’ such as in answers to interrogatories or requests for admission, or in affidavits and declarations filed on the party's behalf.” (Arce v. Kaiser Foundation Health Plan, Inc. (2010) 181 Cal.App.4th 471, 485.) Accordingly, the Court grants the requested notice.

Defendant’s Requests for Admissions (Set Two) asked Plaintiff to admit the veracity of four emails between Plaintiff and various administrators. (RJN Ex. 4.) In response to each request, Plaintiff admitted in part and denied in part. In one of the emails, Plaintiff wrote that “[o]n November 22, 2019 . . . [interim principal Dr. Rambo] and Christina Lincoln-Moore met with me and let me now that I would not be offered a 2nd probationary year at WGAM (in 2020-2021), but they felt I should teach at the elementary level instead and should seek an immediate alternative position among those currently open, using my holiday breaks to search for another position.” (RJN Ex. 4, Ex. C [43].) The other emails similarly reference a November 22, 2019 meeting in which Plaintiff was informed by administrators that she would not be re-elected for her position at WGAM for the following year.

Defendant argues that these emails constitute incontrovertible admissions that Plaintiff was notified of her non-re-election before she took her leave of absence. However, Plaintiff denied the Request for Admission Nos. 4 and 5, which asked Plaintiff to admit that “administrators at [WGAM] informed Plaintiff [] that she would likely be non-re-elected because she was not a good match/fit for teaching Middle School.” (RJN Ex. 3, p. 4.) These denials directly contradict the fact that Defendant seeks to rely upon.

“‘A demurrer is simply not the appropriate procedure for determining the truth of disputed facts.’ [Citation.] The hearing on demurrer may not be turned into a contested evidentiary hearing through the guise of having the court take judicial notice of documents whose truthfulness or proper interpretation are disputable. [Citation.] [Citation] ... ‘[J]udicial notice of matters upon demurrer will be dispositive only in those instances where there is not or cannot be a factual dispute concerning that which is sought to be judicially noticed.’ [Citation.]” (Richtek USA, Inc. v. uPI Semiconductor Corp. (2015) 242 Cal.App.4th 651, 660.)

Because Plaintiff’s responses to Defendant’s Requests for Admission appear to present a factual dispute as to whether Plaintiff was informed of her non-re-election by Defendant at the November 22 meeting, the Court cannot take judicial notice of that fact and so cannot properly sustain the demurrer on that basis.

Defendant also demurs to the first cause of action on the basis that Plaintiff has not alleged facts constituting a prima facie case of disability discrimination. Defendant argues that it was entitled to terminate Plaintiff on timely notice without cause, and so Plaintiff cannot plead discriminatory intent by Plaintiff based exclusively on a theory of temporal proximity.

“‘The Education Code establishes four possible classifications for certificated employees: permanent, probationary, substitute and temporary.’ [Citation.] The code authorizes the governing boards of school districts to hire, classify, promote and dismiss certificated employees (i.e., teachers) (see 44831), but establishes a complex and somewhat rigid scheme to govern a board's exercise of its decisionmaking power.” (California Teachers Assn. v. Vallejo City Unified School Dist. (2007) 149 Cal.App.4th 135, 144.) “Probationary employees may not be dismissed during the school year except for cause or unsatisfactory performance ( 44948.3), but, on timely notice, ‘may be nonreelected without any showing of cause, without any statement of reasons, and without any right of appeal or administrative redress.’” (Id. at 144.) Plaintiff admitted in responses to Requests for Admission that she was a probationary teacher as defined under the Education Code. (RJN Ex. 3.)

Defendant’s argument here fails for the same reason as its prior one. Plaintiff does not allege in the SAC that she was timely notified of non-re-election by Defendant. While Defendant seeks to establish that fact as uncontroverted based on Plaintiff’s responses to the Requests for Admissions, Plaintiff expressly denied the fact in Request Nos. 4 and 5 and so the Court cannot take judicial notice of Plaintiff’s timely notification.

Defendant argues that Plaintiff’s second cause of action for failure to prevent discrimination fails as derivative of the first cause of action. (Trujillo v. North County Transit District, 63 Cal.App.4th 280, 288–289 [“[T]here's no logic that says an employee who has not been discriminated against can sue an employer for not preventing discrimination that didn't happen, for not having a policy to prevent discrimination when no discrimination occurred”].) As the demurrer is overruled as to the first cause of action, the demurrer is also overruled as to the second cause of action.

Case Number: *******4860 Hearing Date: July 12, 2022 Dept: 30

Dept. 30Calendar No.7

Wise vs. Los Angeles Unified School District, et. al., Case No. *******4860

Tentative Ruling re: Defendant’s Demurrer to First Amended Complaint

Defendant Los Angeles Unified School District (Defendant) demurs to the First Amended Complaint (FAC) of Plaintiff Ruth Wise. The demurrer is sustained with ten (10) days leave to amend.

In reviewing the legal sufficiency of a complaint against a demurrer, a court will treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions, or conclusions of law. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318 (Blank); C & H Foods Co. v. Hartford Ins. Co. (1984) 163 Cal.App.3d 1055, 1062.) It is well settled that a “demurrer lies only for defects appearing on the face of the complaint[.]” (Stevens v. Superior Court (1999) 75 Cal.App.4th 594, 601.) “The rules by which the sufficiency of a complaint is tested against a general demurrer are well settled. We not only treat the demurrer as admitting all material facts properly pleaded, but also give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.” (Guclimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38 (internal quotes omitted).) For purposes of ruling on a demurrer, the complaint must be construed liberally by drawing reasonable inferences from the facts pleaded. (Wilner v. Sunset Life Ins. Co. (2000) 78 Cal.App.4th 952, 958.)

When ruling on a demurrer, the Court may only consider the complaint’s allegations or matters which may be judicially noticed. (Blank, supra, 39 Cal.3d at p. 318.) The Court may not consider any other extrinsic evidence or judge the credibility of the allegations plead or the difficulty a plaintiff may have in proving his allegations. (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881.) A demurrer is properly sustained only when the complaint, liberally construed, fails to state facts sufficient to constitute any cause of action. (Kramer v. Intuit Inc. (2004) 121 Cal.App.4th 574, 578.)

The FAC asserts three causes of action against Defendant under FEHA for (1) Disability Discrimination, (2) Retaliation, and (3) Failure to Prevent Discrimination.

First Cause of Action for Disability Discrimination

To survive demurrer, a plaintiff alleging a discrimination claim under FEHA “[m]ust plead the prima facie elements of employment discrimination specified in McDonnell Douglas [411 U.S. 792].” (Caldwell v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 203 fn 7.) That is, the complaint must allege “that: (1) Plaintiff suffers from a disability; (2) Plaintiff is otherwise qualified to do his job; and (3) Plaintiff was subjected to an adverse employment action because of his disability.” (Alejandro v. ST Micro Electronics, Inc (N.D. Cal. 2015) 129 F.Supp.3d 898, 907.)“[T]he touchstone of a qualifying handicap or disability is an actual or perceived physiological disorder which affects a major body system and limits the individual's ability to participate in one or more major life activities.” (Bagatti v. Department of Rehabilitation (2002) 97 Cal.App.4th 344, 353.) The definition of physical disability under FEHA includes “[h]aving any physiological disease, disorder, condition, cosmetic disfigurement, or anatomical loss” that affects one of several body systems and limits a major life activity. (Gov. Code 12926, subd. (m).) FEHA defines a mental disability as “[h]aving any mental or psychological disorder or condition, such as intellectual disability, organic brain syndrome, emotional or mental illness, or specific learning disabilities, that limits a major life activity.” (Id. 12926, subd. (j)(1).) “A mental or psychological disorder or condition limits a major life activity if it makes the achievement of the major life activity difficult.” (Id. 12926, subd. (j)(1)(B).) “Major life activities” under FEHA are broadly construed and include “physical, mental, and social activities and working.” (Id. 12926, subd. (j)(1)(C).)

Defendant argues that Plaintiff has failed to allege that she suffers from a disability covered by FEHA. The Court agrees.

Regarding her disability, Plaintiff alleges that, around January 2020, she “was diagnosed with a chronic medical condition and had an exacerbation of her medical condition. On or about January 23, 2020, through March 13, 2020, Plaintiff was required by her doctor to take a medical leave of absence to care for and recover from her disability/medical conditions.” (FAC 12.) The FAC does not specify what disability or medical conditions Plaintiff suffers from, and does not plead any facts as to how Plaintiff’s condition limits a major life activity. Absent such allegations, Plaintiff has failed to plead the existence of a qualifying disability under FEHA, the first element of her disability discrimination claim.

Therefore, the demurrer is sustained as to the first cause of action.

Because Plaintiff has failed to plead her first cause of action for disability discrimination, her third cause of action for failure to prevent discrimination under FEHA also fails. (Trujillo v. North County Transit District, 63 Cal.App.4th 280, 288–289 [“[T]here's no logic that says an employee who has not been discriminated against can sue an employer for not preventing discrimination that didn't happen, for not having a policy to prevent discrimination when no discrimination occurred”].)

Therefore, the demurrer is sustained as to the third cause of action.

Second Cause of Action for Retaliation

“The elements of a claim for retaliation in violation of Government Code section 12940, subdivision (h), are: ‘(1) the employee's engagement in a protected activity ...; (2) retaliatory animus on the part of the employer; (3) an adverse action by the employer; (4) a causal link between the retaliatory animus and the adverse action; (5) damages; and (6) causation.’” (Le Mere v. Los Angeles Unified School Dist. (2019) 35 Cal.App.5th 237, 243 [quoting Mamou v. Trendwest Resorts, Inc. (2008) 165 Cal.App.4th 686, 713].)

“FEHA makes it unlawful for the employer to discharge or discriminate against an employee because he or she has ‘opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part.’ (Gov. Code, 12940, subd. (h).) Thus, protected activity takes the form of opposing any practices forbidden by FEHA or participating in any proceeding conducted by the DFEH or the Fair Employment and Housing Commission (FEHC).” (Nealy v. City of Santa Monica (2015) 234 Cal.App.4th 359, 380.)

Here, Plaintiff alleges that from January 23, 2020 through March 13, 2020, she “was required by her doctor to take a medical leave of absence to care for and recover from her disability/medical conditions. Plaintiff immediately informed [Defendant], regarding Plaintiff’s disability/medical conditions.” (FAC 12.) Plaintiff then returned to work without restrictions on March 16, 2020. (FAC 13.) Around a month later, on April 30, Plaintiff received a Below Standard Evaluation in a meeting with the assistant principal and others, Plaintiff’s first negative evaluation in her six-year employment with Defendant. (FAC 14.) On May 21, 2020, Plaintiff received a Notice of Non-Reelection from Defendant’s Director of Employee Relations, stating that Defendant had decided not to reelect Plaintiff for her position for the succeeding school year. (FAC 16.)

Plaintiff later filed a successful grievance to change the April 2020 Evaluation from “Below Standard” to “Meets Standard,” but when Plaintiff then filed another grievance to overturn the Notice of Non-Reelection, which had been based on the inaccurate evaluation, Defendant refused to allow a meeting on the basis that Plaintiff was no longer an employee. (FAC 20-22.)

Plaintiff has failed to allege the first element of a claim for retaliation under section 12940, subd. (h), her engagement in protected activity. While Plaintiff states her cause of action as one for retaliation for taking medical leave in violation of Gov. Code 12940(h), an employee engages in protected activity under that section when they “oppose [] discrimination or other conduct made unlawful by FEHA.” (Kodwavi v. Intercontinental Hotels Group Resources, Inc. (N.D. Cal. 2013) 966 F.Supp.2d 971, 988.) It appears that Plaintiff does not intend to allege this form of protected activity as the basis for her claim.

Rather, retaliation for protected medical leave is prohibited by the Moore-Brown-Roberti Family Rights Act (CFRA) (Gov. Code 12945.2, 12945.2), specifically, Gov. Code 12945.2, subd. (k). (See Dudley v. Department of Transp. (2001) 90 Cal.App.4th 255, 260 [“CFRA is a portion of FEHA that provides ‘protections to employees needing family leave or medical leave.’”].) Because a general demurrer may be upheld “only if the complaint fails to state a cause of action under any possible legal theory,” the Court will determine whether Plaintiff has stated a cause of action for medical leave retaliation under Gov. Code 12945.2, subd. (k). (Sheehan v. San Francisco 49ers, Ltd. (2009) 45 Cal.4th 992, 1003.)

“CFRA generally provides that it is unlawful for an employer to refuse an employee's request for up to 12 weeks of ‘family care and medical leave’ in a year.” (Dudley, 90 Cal.App.4th 255, 260; Gov. Code 12945.2, subd. (a).) “Family care and medical leave” under this section means, in relevant part, “Leave because of an employee's own serious health condition that makes the employee unable to perform the functions of the position of that employee, except for leave taken for disability on account of pregnancy, childbirth, or related medical conditions.” (Gov. Code 12945.2, subd. (b)(4)(C).) “Serious health condition” means an illness, injury, impairment, or physical or mental condition that involves either: (A) Inpatient care in a hospital, hospice, or residential health care facility, or (B) Continuing treatment or continuing supervision by a health care provider. (Gov. Code 12945.2, subd. (b)(12).)CFRA makes it an unlawful employment practice “for an employer to refuse to hire, or to discharge, fine, suspend, expel, or discriminate against, any individual” because of the “individual's exercise of the right to family care and medical leave provided by subdivision (a).” (Gov. Code 12945.2, subd. (k)(1).)

Here, Plaintiff has failed to state a claim for retaliation under section 12945.2, subd. (k), because she has not alleged facts showing that the medical leave she took from January 2022 through March 2022 was protected “family care and medical leave” under CFRA. Plaintiff has only alleged that she “was diagnosed with a chronic medical condition,” and that she “was required by her doctor to take a medical leave of absence to recover from her disability/medical condition.” (FAC 12.) These allegations are insufficient to show that Plaintiff’s medical condition was a “serious health condition” that made Plaintiff unable to perform the functions of her position. As discussed under the first cause of action, Plaintiff has not alleged the specific condition she suffers from or how her condition affected the performance of her job functions. Because Plaintiff has failed to allege that she exercised her right to family care and medical leave as provided under section 12945.2, subd. (a), she has not pled a cause of action for medical leave retaliation under CFRA.

Accordingly, the demurrer is sustained as to the second cause of action.