On 08/11/2017 SANSANAYE LEONG ARSENESCU filed a Labor - Wrongful Termination lawsuit against COUNTY SANITATION DISTRICTS OF. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are TERRY A. GREEN, TERRY GREEN and CHRISTOPHER K. LUI. The case status is Pending - Other Pending.
Pending - Other Pending
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
TERRY A. GREEN
CHRISTOPHER K. LUI
ARSENESCU SANSANAYE LEONG
COUNTY OF SANITATION DISTRICTS OF
DOES 1 TO 100
COUNTY SANITATION DISTRICTS OF LOS ANGELES COUNTY
SHEGERIAN CARNEY R. ESQ.
SHEGERIAN CARNEY RICHARD ESQ.
SHEGERIAN CARNEY R.
LIM MARK IRWIN
JOHNSON ADAM L. ESQ.
BRETHEN GEOFFREY C.
JOHNSON ADAM L.
9/11/2019: Notice of Ruling
9/11/2019: Ex Parte Application - EX PARTE APPLICATION EX PARTE CONTINUE TRIAL (ARSENSCU)
8/11/2017: PLAINTIFF SANSANAVE LEONG ARSENESCU'S COMPLAINT FOR DAMAGES BASED ON: (1) DISCRIMINATION ON THE BASIS OF RACE, NATIONAL ORIGIN, AND/OR ANCESTRY IN VIOLATION OF FEHA; ETC
8/6/2020: Opposition - OPPOSITION PLAINTIFF SANSANAYE LEONG ARSENESCUS OPPOSITION TO DEFENDANT COUNTY SANITATION DISTRICTS OF LOS ANGELES COUNTYS MOTION FOR JUDGMENT ON THE PLEADINGS; MEMORANDUM OF POINTS AND
11/27/2019: Motion re: - MOTION RE: EXTEND VOIR DIRE & JUR QUEST'AIRE (ARSENESCU)
12/11/2019: Ex Parte Application - EX PARTE APPLICATION EX PARTE CONTINUE TRIAL (ARSENSCU).4
6/4/2020: Request for Judicial Notice
6/25/2019: Separate Statement
6/27/2019: Minute Order - MINUTE ORDER (HEARING ON EX PARTE APPLICATION CONTINUE TRIAL (ARSENESCU) 0...)
2/25/2019: Notice - Notice OF FILING COMPLETE DEPOSITION TRANSCRIPTS IN OPPOSITION TO DEFENDANT COUNTY SANITATION DISTRICTS OF LOS ANGELES COUNTYS MOTION FOR SUMMAR JUDGMENT AND/OR SUMMARY ADJUDICATION; VOLUME
3/6/2019: Response - Response to Plaintiff's Objections to Evidence
3/6/2019: Reply - Reply Brief in support of county Sanitation Districts of Los Angeles County's Motion for summary judgment and/or Adjudication
4/16/2019: Notice - NOTICE 1987 NOTICE (ARSENESCU)
12/21/2018: Declaration - Declaration of Joseph Gully in Support of Motion for Summary Judgment and/or Summary Adjudication
12/21/2018: Other - - Compendium of Evidence in Support of Defendant's Motion for Summary Judgment and/or Summary Adjudication
12/21/2018: Request for Judicial Notice
3/29/2018: PROOF OF SERVICE
11/21/2017: PLAINTIFF SANSANAYE LEONG ARSENESCU'S OPPOSITION TO DEFENDANT'S DEMURRER TO PLAINTIFF'S COMPLAINT; ETC
Hearing12/10/2020 at 09:00 AM in Department 76 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Motion - Other to Allow Extensive Oral Voir Dire and a Written Juror Questionaire (C.C.P. 205, 222.5; C.R.C 3.1540)Read MoreRead Less
Hearing12/10/2020 at 09:00 AM in Department 76 at 111 North Hill Street, Los Angeles, CA 90012; Trial Setting ConferenceRead MoreRead Less
Docketat 08:45 AM in Department 76, Christopher K. Lui, Presiding; Hearing on Motion - Other (to Allow Extensive Oral Voir Dire and a Written Juror Questionaire (C.C.P. 205, 222.5; C.R.C 3.1540)) - Not Held - Advanced and Continued - by CourtRead MoreRead Less
Docketat 4:30 PM in Department 76, Christopher K. Lui, Presiding; Court OrderRead MoreRead Less
DocketMinute Order ( (Court Order Re: Re-scheduling of Hearing on Motion to allow e...)); Filed by ClerkRead MoreRead Less
DocketCertificate of Mailing for ((Court Order Re: Re-scheduling of Hearing on Motion to allow e...) of 09/29/2020); Filed by ClerkRead MoreRead Less
Docketat 10:30 AM in Department 76, Christopher K. Lui, Presiding; Ruling on Submitted MatterRead MoreRead Less
DocketCertificate of Mailing for ((Ruling on Submitted Matter) of 08/25/2020); Filed by ClerkRead MoreRead Less
DocketMinute Order ( (Ruling on Submitted Matter)); Filed by ClerkRead MoreRead Less
Docketat 10:00 AM in Department 76, Christopher K. Lui, Presiding; Jury Trial - Not Held - Advanced and VacatedRead MoreRead Less
DocketDECLARATION OF ADAM L. JOHNSON RE COMPLIANCE WITH MEET AND CONFER REQUIREMENTRead MoreRead Less
DocketNOTICE OF MOTION AND MOTION OF DEFENDANT COUNTY SANITATION DISTRICTS OF LOS ANGELES COUNTY TO STRIKE ALLEGATIONS REGARDING PUNITIVE DAMAGES FROM COMPLAINTRead MoreRead Less
DocketNOTICE OF DEMURRKR AND DEMURRER OF DEFENDANT COUNTY SANITATION DISTRICTS OF LOS ANGELES COUNTY TO COMPLAINTRead MoreRead Less
DocketDeclaration; Filed by COUNTY OF SANITATION DISTRICTS OF (Defendant)Read MoreRead Less
DocketREQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEMURRER AND MOTION TO STRIKE OF DEFENDANT COUNTY SANITATION DISTRICTS OF IOS ANGELES COUNTYRead MoreRead Less
DocketPROOF OF SERVICE SUMMONSRead MoreRead Less
DocketProof-Service/Summons; Filed by SANSANAYE LEONG ARSENESCU (Plaintiff)Read MoreRead Less
DocketSUMMONSRead MoreRead Less
DocketPLAINTIFF SANSANAVE LEONG ARSENESCU'S COMPLAINT FOR DAMAGES BASED ON: (1) DISCRIMINATION ON THE BASIS OF RACE, NATIONAL ORIGIN, AND/OR ANCESTRY IN VIOLATION OF FEHA; ETCRead MoreRead Less
DocketComplaint; Filed by SANSANAYE LEONG ARSENESCU (Plaintiff)Read MoreRead Less
Case Number: BC672150 Hearing Date: August 19, 2020 Dept: 76
Plaintiff alleges that her supervisor began engaging in retaliatory harassment because Plaintiff reported improper relationships engaged in by her supervisor’s best friends, who were also employed by Defendant. Plaintiff also alleges that her supervisor was intent on forcing her into retirement when she turned fifty. Plaintiff’s supervisor also allegedly began sexually harassing Plaintiff. Eventually, Plaintiff was given a notice of intent to terminate for the false explanation of a failure to follow laboratory procedures and falsification of District records.
Defendant County Sanitation Districts of Los Angeles County moves for judgment on the pleadings.
Defendant County Sanitation Districts of Los Angeles County’s motion for judgment on the pleadings as to the First Amended Complaint is GRANTED without leave to amend as to the sixteenth cause of action and DENIED as to the second, third, fifth, sixth, seventh, eighth, ninth, eleventh, twelfth, thirteenth, fourteenth, fifteenth, twenty-first and twenty-third causes of action.
Motion For Judgment On The Pleadings
Meet and Confer
The Declaration of Geoffrey C. Brethen reflects that the meet and confer requirement set forth in CCP § 439 was satisfied.
Request For Judicial Notice
Defendant requests that the Court take judicial notice of the following: (1) Plaintiff’s DFEH Complaint dated December 8, 2016; (2) Notice of Ruling on December 6, 201 hearing on Defendant’s demurrer; (3) Notice of Ruling on March 18, 2019 hearing on Defendant’ motion for summary judgment.
Request No. 1 is GRANTED. Pursuant to Evid. Code § 452(c), the Court may take judicial notice of official records of an administrative agency. (Ordlock v. Franchise Tax Bd. (2006) 38 Cal.4th 897, 912.) Requests Nos. 2 and 3 are GRANTED per Evid. Code § 452(d)(court records).
Plaintiff requests that the Court take judicial notice of the following: (1) Defendant’s demurrer to Complaint; (2) Notice of Ruling on Demurrer; (3) First Amended Complaint; (4) Defendant’s motion for summary judgment; (5) Minute Order granting and denying motion for summary judgment tin part.
Requests Nos. 1 – 5 are GRANTED per Evid. Code § 452(d)(court records).
Defendant brings this as a nonstatutory motion for judgment on the pleadings, arguing that the limitation set forth in CCP § 438(g)(1) does not apply. § 438(g)(1) provides:
(g) The motion provided for in this section may be made even though either of the following conditions exist:
(1) The moving party has already demurred to the complaint or answer, as the case may be, on the same grounds as is the basis for the motion provided for in this section and the demurrer has been overruled, provided that there has been a material change in applicable case law or statute since the ruling on the demurrer.
(Bold emphasis added.)
Weil and Brown opine that the nonstatutory motion—without the limitation set forth in CCP § 438(b)(1)—may survive, such that the failure to state a valid cause of action may be raised by a nonstatutory motion for judgment on the pleadings at any time. (See Weil & Brown, et al., California Practice Guide: Civil Procedure Before Trial ¶ 7:277 et seq. (Rutter: 2015). The Court accepts this proposition, such that Defendant is not in violation of CCP § 438(g)(1) in bringing the instant motion.
Defendant concedes that it is seeking to have this Court correct the prior rulings made by Judge Green in this same case. Indeed, Defendant acknowledges that on December 6, 2017, Judge Green in Dept. 14 of this Court, heard argument and ruled upon a demurrer brought by Defendant to the original complaint on the same grounds Defendant raises in this motion. Judge Green overruled Defendant’s demurrer as to all but one cause of action, but Defendant raises the issues against the First Amended Complaint. Defendant admits that “[t]his motion is brought in an effort to correct this court’s ruling. . . “ Notice of Motion, Page 3:16-17.
The Court acknowledges that case law supports reexamining the sufficiency of a pleading even if a different judge previously overruled a demurrer. (Pacific States Enterprises, Inc. v. City of Coachella (1993) 13 Cal.App.4th 1414, 1420 n.3.)
1. Second Cause Of Action (Race/National Origin/Ancestry Harassment); Third Cause Of Action (Retaliation For Complaining Of Discrimination And Harassment); Fifth Cause Of Action (Age Harassment); Sixth Cause Of Action (Retaliation For Complaining About Age Discrimination And Harassment); Seventh Cause Of Action (Sexual Harassment [Quid Pro Quo]); Eighth Cause Of Action (Sexual Harassment [Hostile Work Environment]); Ninth Cause Of Action (Retaliation For Complaining Of Sexual Harassment); Eleventh Cause Of Action (Harassment On The Basis Of Disability); Twelfth Cause Of Action (Retaliation For Complaining Of Discrimination And/Or Harassment On The Basis Of Disability); Thirteenth Cause Of Action (Failure To Prevent Discrimination, Harassment, And Retaliation); Fourteenth Cause Of Action (Failure To Accommodate); Fifteenth Cause Of Action (Failure To Engage In The Interactive Process); Twenty-Third Cause Of Action (Retaliation For Complaining of Discrimination On The Basis Of Gender).
Defendant argues that incidents prior to 12/8/15 cannot support Plaintiff’s FEHA claims and the remaining allegations are insufficient to support Plaintiff’s FEHA claims.
On a motion for judgment on the pleadings, the same rules applicable on demurrer apply. (County of Orange v. Association of Orange County Deputy Sheriffs (2011) 192 Cal.App.4th 21, 32-33.) On demurrer (and thus a motion for judgment on the pleadings), a statute of limitations defense does not lie to only a portion of a cause of action. (Pointe San Diego Residential Community, L.P. v. Procopio, Cory, Hargreaves & Savitch, LLP (2011) 195 Cal.App.4th 265, 274.) “A demurrer based on the statute of limitations may not properly be sustained if any part of the cause of action be not barred.” (Vassere v. Joerger (1938) 10 Cal.2d 689, 694.)
Further, to prevail on a demurrer based on the statute of limitations, a defendant must establish the entire cause of action is untimely. A demurrer challenges a cause of action and cannot be used to attack a portion of a cause of action. (Caliber Bodyworks, Inc. v. Superior Court (2005) 134 Cal.App.4th 365, 384–385 [36 Cal. Rptr. 3d 31].) Thus, where a plaintiff sues a defendant for legal malpractice alleging several distinct acts of malpractice with respect to a single representation, a demurrer is properly granted on the basis of the statute of limitations only if each alleged act of malpractice is time-barred. (PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1682 [40 Cal. Rptr. 2d 169] [reversing demurrer sustained to legal malpractice cause of action because plaintiff timely alleged at least one negligent act].)
(Pointe San Diego Residential Community, L.P. v. Procopio, Cory, Hargreaves & Savitch, LLP (2011) 195 Cal.App.4th 265, 274.)
Here, Defendant’s motion for judgment on the pleadings relative to its statute of limitations argument is based on the premises that some acts alleged by Plaintiff are time-barred and the remainder are insufficient to state a cause of action. As noted, this is not a proper basis to grant a motion for judgment on the pleadings.
Accordingly, this ground for or judgment on the pleadings is not persuasive.
2. Second Cause Of Action (Race/National Origin/Ancestry Harassment); Fifth Cause Of Action (Age Harassment); Seventh Cause Of Action (Sexual Harassment [Quid Pro Quo]); Eighth Cause Of Action (Sexual Harassment [Hostile Work Environment]); and Eleventh Cause Of Action (Harassment On The Basis Of Disability).
Aside from the argument that these causes of action are based upon time-barred allegations (addressed above at 1), Defendant argues that the alleged harassment consisted of personnel management activity which does not constitute harassment as a matter of law.
Here, Plaintiff alleges that Defendants engaged in actions and comments exhibiting a bias against Plaintiff on the basis of her Chinese nationality (1AC, ¶¶ 55, 56), age (¶¶ 77, 78), sex (¶¶ 93 – 97, 106 - 112), and disability (¶¶ 137). Examples of the alleged harassing conduct is that Chu began to visit and inspect Plaintiff’s lab more often than before to find some minor issues to complaint about. (1AC, ¶ 19.) Chu also held one-one-one meetings with Plainiff in Chu’s car, during which Chu would leer at Plaintiff in a sexual manner. (¶ 22.) Plaintiff was also accused of falsifying data (“dry labbing”). (¶¶ 31, 32.) Chu also accused plaintiff of not being Chinese because she was married to a Caucasian, did not “act Chinese” and was not loyal. (¶ 33.) To the extent that personnel management actions or decisions against Plaintiff sent a demeaning message to her conveying a bias against her Chinese nationality, such personnel management decisions may form an evidentiary basis for hostile work environment harassment in violation of the FEHA. (Roby v. McKesson Corp. “Judgment on the pleadings does not depend upon a resolution of questions of witness credibility or evidentiary conflicts. In fact, judgment on the pleadings must be denied where there are material factual issues that require evidentiary resolution.” Schabarum v. California Legislature laintiff's possible inability or difficulty in proving the allegations of the complaint is of no concern. (Citation omitted.)” (Kerivan v. Title Ins. & Trust Co. (1983) 147 Cal.App.3d 225, 229.)
Roby challenges the Court of Appeal's conclusion that there was insufficient evidence to support the jury's harassment verdict. Specifically, she argues that, under the FEHA, the Court of Appeal should not have excluded personnel management actions as evidence in support of her harassment claim. We agree.
In the FEHA, the terms “discriminate” and “harass” appear in separate provisions and define distinct wrongs. (See Reno, supra, 18 Cal.4th at pp. 645–647; see also State Dept. of Health Services v. Superior Court (2003) 31 Cal.4th 1026, 1040 [6 Cal. Rptr. 3d 441, 79 P.3d 556].) As relevant here, subdivision (a) of section 12940 makes it “unlawful” (subject to certain exceptions) “[f]or an employer, because of the … physical disability, mental disability, [or] medical condition … of any person … to discriminate against the person in compensation or in terms, conditions, or privileges of employment.” (Italics added.) Subdivision (j)(1) of the same statute makes it unlawful (again subject to certain exceptions) “[f]or an employer … or any [*706] other person, because of … physical disability, mental disability, [or] medical condition … to harass an employee … .” (§ 12940, subd. (j)(1), italics added.)
Because the FEHA treats harassment in a separate provision, there is no reason to construe the FEHA's prohibition against discrimination broadly to include harassment. Hence, our case law makes clear that the FEHA's discrimination provision addresses only explicit changes in the “terms, conditions, or privileges of employment” (§ 12940, subd. (a)); that is, changes involving some official action taken by the employer. (Reno, supra, 18 Cal.4th at pp. 645–647.) In the case of an institutional or corporate employer, the institution or corporation itself must have taken some official action with respect to the employee, such as hiring, firing, failing to promote, adverse job assignment, significant change in compensation or benefits, or official disciplinary action.
By contrast, harassment often does not involve any official exercise of delegated power on behalf of the employer. We explained this point in Reno: “ ‘Courts have employed the concept of delegable authority as a test to distinguish conduct actionable as discrimination from conduct actionable as harassment. We adopt this approach to find that the exercise of personnel management authority properly delegated by an employer to a supervisory employee might result in discrimination, but not in harassment.’ ” (Reno, supra, 18 Cal.4th at p. 646, quoting Janken, supra, 46 Cal.App.4th at p. 64, italics added.) Thus, harassment focuses on situations in which the social environment of the workplace becomes intolerable because the harassment (whether verbal, physical, or visual) communicates an offensive message to the harassed employee.
Because a harasser need not exercise delegated power on behalf of the employer to communicate an offensive message, it does not matter for purposes of proving harassment whether the harasser is the president of the [*707] company or an entry-level clerk, although harassment by a high-level manager of an organization may be more injurious to the victim because of the prestige and authority that the manager enjoys. When the harasser is a supervisor, the employer is strictly liable for the supervisor's actions. (State Dept. of Health Services v. Superior Court, supra, 31 Cal.4th at pp. 1040–1041.) When the harasser is a nonsupervisory employee, employer liability turns on a showing of negligence (that is, the employer knew or should have known of the harassment and failed to take appropriate corrective action). (§ 12940, subd. (j)(1).)
These distinctions place discrimination and harassment in separate categories in regard to application of the FEHA; as explained above, discrimination refers to bias in the exercise of official actions on behalf of the employer, and harassment refers to bias that is expressed or communicated through interpersonal relations in the workplace. This conclusion is consistent with our analysis of the FEHA in Reno. There, we said: “ ‘[H]arassment consists of conduct outside the scope of necessary job performance, conduct presumably engaged in for personal gratification, because of meanness or bigotry, or for other personal motives. … [¶] … [¶] … [C]ommonly necessary personnel management actions … do not come within the meaning of harassment. … 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. … This significant distinction underlies the differential treatment of harassment and discrimination in the FEHA.’ ” (Reno, supra, 18 Cal.4th at pp. 645–647, quoting Janken, supra, 46 Cal.App.4th at pp. 63–65.)
The FEHA's distinction between discrimination and harassment does not mean that harassment claims are relegated to a lower status. The FEHA does not differentiate in terms of wrongfulness between discrimination and harassment; both are “unlawful employment practice[s]” (§ 12940), and in both cases an aggrieved employee can obtain full compensation for any resulting injury. In addition, we can discern no reason why an employee who is the victim of discrimination based on some official action of the employer cannot also be the victim of harassment by a supervisor for abusive messages that create a hostile working environment, and under the FEHA the employee would have two separate claims of injury.
Our decision in Miller, supra, 36 Cal.4th at pages 460–466, further clarifies the FEHA's distinction between discrimination and harassment. Although discrimination and harassment are separate wrongs, they are sometimes closely interrelated, and even overlapping, particularly with regard to proof. In Miller, we considered whether evidence of widespread sexual [*708] favoritism in the workplace could constitute sexual harassment against the nonfavored employees. We concluded that it could, provided that the favoritism was so severe or pervasive as to alter the working conditions. (36 Cal.4th at p. 466.) Significantly, the favoritism at issue in Miller took the form of official employment actions, including promotions and favorable job assignments given to female employees involved in sexual relationships with a particular male supervisor. (Id. at pp. 452–459.) The Miller plaintiffs, however, were not subject to any demands for sexual favors. (Ibid.) In concluding that the plaintiffs had nevertheless stated a prima facie case of harassment in violation of the FEHA, we stated that widespread sexual favoritism could convey a “demeaning message … to female employees that they are viewed by management as ‘sexual playthings’ or that the way required for women to get ahead in the workplace is to engage in sexual conduct with their supervisors or the management.” (Miller, at p. 451; see also id. at p. 464.) This demeaning message, we held, could give rise to an actionable hostile work environment. (Id. at p. 451.)
Thus, in Miller the immediate source of the plaintiffs' alleged injuries was the offensive sex-biased message that the supervisor conveyed, not a demotion or an unfavorable job assignment, and therefore the plaintiffs' cause of action was for harassment, not for discrimination. Nevertheless, official employment actions constituted the evidentiary basis of the harassment cause of action, because the supervisor used those official actions as his means of conveying his offensive message. Our decision in Miller is wholly consistent with Reno, supra, 18 Cal.4th at pages 645–647, because it confirms that harassment is generally concerned with the message conveyed to an employee, and therefore with the social environment of the workplace, whereas discrimination is concerned with explicit changes in the terms or conditions of employment. Miller, however, makes clear that in some cases the hostile message that constitutes the harassment is conveyed through official employment actions, and therefore evidence that would otherwise be associated with a discrimination claim can form the basis of a harassment claim. Moreover, in analyzing the sufficiency of evidence in support of a harassment claim, there is no basis for excluding evidence of biased personnel management actions so long as that evidence is relevant to prove the communication of a hostile message.
Here, Roby's discrimination claim sought compensation for official employment actions that were motivated by improper bias. These discriminatory actions included not only the termination itself but also official employment actions that preceded the termination, such as the progressive disciplinary warnings and the decision to assign Roby to answer the office telephones during office parties. Roby's harassment claim, by contrast, sought compensation for hostile social interactions in the workplace that affected the workplace environment because of the offensive message they conveyed to [*709] Roby. These harassing actions included Schoener's demeaning comments to Roby about her body odor and arm sores, Schoener's refusal to respond to Roby's greetings, Schoener's demeaning facial expressions and gestures toward Roby, and Schoener's disparate treatment of Roby in handing out small gifts. None of these events can fairly be characterized as an official employment action. None involved Schoener's exercising the authority that McKesson had delegated to her so as to cause McKesson, in its corporate capacity, to take some action with respect to Roby. Rather, these were events that were unrelated to Schoener's managerial role, engaged in for her own purposes.
Miller, however, makes clear that some official employment actions done in furtherance of a supervisor's managerial role can also have a secondary effect of communicating a hostile message. This occurs when the actions establish a widespread pattern of bias. (Miller, supra, 36 Cal.4th at p. 466.) Here, some actions that Schoener took with respect to Roby are best characterized as official employment actions rather than hostile social interactions in the workplace, but they may have contributed to the hostile message that Schoener was expressing to Roby in other, more explicit ways. These would include Schoener's shunning of Roby during staff meetings, Schoener's belittling of Roby's job, and Schoener's reprimands of Roby in front of Roby's coworkers. Moreover, acts of discrimination can provide evidentiary support for a harassment claim by establishing discriminatory animus on the part of the manager responsible for the discrimination, thereby permitting the inference that rude comments or behavior by that same manager were similarly motivated by discriminatory animus.
Therefore, discrimination and harassment claims can overlap as an evidentiary matter. The critical inquiry when a court is deciding whether the evidence is sufficient to uphold a verdict finding both discrimination and harassment is whether the evidence indicates violations of both FEHA prohibitions, but nothing prevents a plaintiff from proving these two violations with the same (or overlapping) evidentiary presentations.
. . . [*710] . . .
The Court of Appeal concluded that, after this “business and management” evidence was “sifted out,” there was little evidence that supervisor Schoener's hostility toward Roby was based on Roby's disability rather than mere rudeness. The remaining evidence was limited to Schoener's demeaning comments and gestures, Schoener's refusal to respond to Roby's greetings, and Schoener's failure to give Roby gifts. According to the Court of Appeal, “th[is] evidence showed that Schoener obviously disliked Roby, shunned her, and showed no compassion for her condition,” but it did not establish that Schoener's rude treatment of Roby was “because of … physical disability, mental disability, [or] medical condition.” (§ 12940, subd. (j)(1), italics added.)
In allocating the evidence between Roby's discrimination and harassment claims and then ignoring the discrimination evidence when analyzing the harassment verdict, the Court of Appeal erred. As discussed above, the FEHA treats discrimination and harassment as distinct categories, but nothing in the FEHA requires that the evidence in a case be dedicated to one or the other claim but never to both. Here, the evidence is ample to support the jury's harassment verdict. The evidence included not only Schoener's rude comments and behavior, which occurred on a daily basis, but also Schoener's shunning of Roby during weekly staff meetings, Schoener's belittling of Roby's job, and Schoener's reprimands of Roby in front of Roby's coworkers. This evidence was sufficient to allow the jury to conclude that the hostility was pervasive and effectively changed the conditions of Roby's employment. (Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 278–279 [42 Cal. Rptr. 3d 2, 132 P.3d 211].)
Moreover, the jury could infer, based on the discrimination evidence, that supervisor Schoener's hostility was “because of … [Roby's] medical condition.” (§ 12940, subd. (j)(1), italics added.) Specifically, the jury could draw this inference from the evidence that Schoener—who knew about Roby's medical condition—applied employer McKesson's attendance policy without making any accommodation or even inquiring if an accommodation was possible. The jury could also draw this inference from the degrading [*711] manner in which Schoener would announce to the office that Roby was “absent again” and from the demeaning comments, gestures, and facial expressions Schoener made in response to Roby's body odor and arm sores. Viewed together, the evidence is sufficient to support the jury's conclusion that Schoener harassed Roby in violation of the FEHA.
McKesson concedes that the same evidence can be used in support of both a discrimination claim and a harassment claim. But, citing our decision in Reno, supra, 18 Cal.4th at pages 645–647, McKesson asserts that “nonabusive actions by a supervisor acting in the course of his or her managerial duties” may not support a harassment claim. Whether or not McKesson accurately describes the law, discrimination is by its nature an abusive action, not a “nonabusive action.” Therefore, from the evidence that Schoener discriminated against Roby based on Roby's medical condition, the jury could reasonably infer that Schoener's constant hostility toward Roby was also based on her medical condition, thus constituting harassment in violation of the FEHA. (§ 12940, subd. (j)(1).)
(Roby v. McKesson Corp.
Defendant also argues that the alleged harassment as not severe or pervasive, but instead were occasional, isolated and sporadic. This is an evidentiary matter which is not properly determined on a motion for judgment on the pleadings. (Schabarum, supra, 60 Cal.App.4th at 1216.)
These grounds for judgment on the pleadings are not persuasive.
2. Third Cause of Action (Retaliation For Complaining Of Discrimination And Harassment); Sixth Cause of Action (Retaliation For Complaining About Age Discrimination And Harassment); Ninth Cause of Action (Retaliation For Complaining Of Sexual Harassment); Twelfth Cause Of Action (Retaliation For Complaining Of Discrimination And/Or Harassment On The Basis Of Disability); Sixteenth Cause Of Action (Violation Of Labor Code § 1102.5); Twenty-Third Cause Of Action (Retaliation For Complaining Of Discrimination On The Basis Of Gender).
Aside from the argument that these causes of action are based upon time-barred allegations (addressed above at 1), Defendant argues that there are no facts showing a causal connection between any protected activity and any adverse employment action.
Not only is it an evidentiary matter outside the scope of this motion for judgment on the pleadings as to whether Plaintiff’s termination was the culmination of a course of retaliation against Plaintiff connected to her complaints about discrimination and harassment, but Plaintiff also alleges facts which may be found to constitute retaliatory harassment.
There is no requirement that an employer’s retaliatory acts constitute one swift blow, as opposed to a series of subtle, yet damaging, injuries. (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1055-56.) Harassing acts may constitute retaliation. (Kelley v. The Conco Companies (2011) 196 Cal.App.4th 191, 212-14 [bold emphasis added], superseded by statute on other grounds as stated in Taylor v. Nabors Drilling USA, LP (2014) 222 Cal.App.4th 1228, 1239 n.2
“Retaliation claims are inherently fact-specific, and the impact of an employer's action in a particular case must be evaluated in context. … [T]he determination of whether a particular action or course of conduct rises to the level of actionable conduct should take into account the unique circumstances of the affected employee as well as the workplace context of the claim.” (Yanowitz, supra, 36 Cal.4th at p. 1052, fn. omitted.) “ ‘[A] series of alleged discriminatory acts must be considered collectively rather than individually in determining whether the overall employment action is adverse [citations] and, in the end, the determination of whether there was an adverse employment action is made on a case-by-case basis, in light of the objective evidence.’ [Citation.]” (Holmes v. Petrovich Development Co., LLC (2011) 191 Cal.App.4th 1047, 1063 [119 Cal. Rptr. 3d 878].)
Kelley has raised triable issues as to whether coworkers engaged in retaliatory harassment sufficiently severe to constitute an adverse employment action, whether Conco had actual or constructive knowledge of the improper conduct, and whether it took appropriate action in response. Summary adjudication of this cause of action was therefore improper.
(Kelley v. The Conco Companies (2011) 196 Cal.App.4th 191, 212-14 [bold emphasis added], superseded by statute on other grounds as stated in Taylor v. Nabors Drilling USA, LP (2014) 222 Cal.App.4th 1228, 1239 n.2 [Gov. Code § 12940(j)(4)(C) was amended to provide that “Sexually harassing conduct need not be motivated by sexual desire.”])
Whether or not the purported reason for Plaintiff’s termination, i.e., failing to follow proper lab procedures and falsifying District records (1AC, ¶ 36), was a pretext for prohibited retaliation is an evidentiary matter outside the scope of this motion for judgment on the pleadings.
This ground for judgment on the pleadings is not persuasive as to the third, sixth, ninth, twelfth and twenty-third cause of action.
However, as to the sixteenth cause of action for violation of Labor Code § 1102.5, Plaintiff alleges that Defendant retaliated against Plaintiff for reporting to Chu two improper relationships between her employees which were against the County’s policy. (1AC, ¶¶ 9, 173.) Plaintiff does not allege that this was a violation of state or federal statute, or local, state or federal rule or regulation. (Labor Code, § 1102.5(b.) Reporting violations of a department policy do not violate § 1102.5. (Mueller v. County of Los Angeles (2009) 176 Cal.App.4th 809, 821-22.)
(Labor Code, § 1102.5(b)[bold emphasis added].)
Section 1102.5 of the Labor Code requires that to come within its provisions, the activity disclosed by an employee must violate a federal or [*822] state law, rule or regulation. (Carter v. Escondido Union High School Dist. (2007) 148 Cal.App.4th 922, 933 [56 Cal. Rptr. 3d 262].) Thus, in addressing this cause of action in the instant case, the trial court stated that plaintiff's claim is not viable under Labor Code section 1102.5. In his opening brief on appeal, plaintiff objects to the court's analysis, saying that the Labor Code only requires that the employee have reasonable cause to believe that the information he discloses to a government or law enforcement agency discloses a violation of such statute, rule or regulation, and in the instant case it is an issue of material fact whether plaintiff reasonably believed that the reports and grievances he made to the county pertained to such violations of law. However, as the county points out in its brief, plaintiff's analysis misses the point of the trial court's statement, which was that this case is not about perceived violations of federal or state statutes, rules or regulations but rather about perceived violations of the department's own policies, which are local policies.
(Mueller v. County of Los Angeles (2009) 176 Cal.App.4th 809, 821-22 [bold emphasis added].)
The sixteenth cause of action fails as a matter of law. The motion for judgment on the pleadings is GRANTED without leave to amend as to the sixteenth cause of action, unless Plaintiff can demonstrate a reasonable possibility of successful amendment.
3. Thirteenth Cause of Action (Failure To Prevent Discrimination, Harassment and/or Retaliation.)
Defendant’s argument that this cause of action fails because the underlying discrimination, harassment or retaliation claims are insufficient pled is not persuasive.
4. Eleventh Cause Of Action (Harassment On The Basis Of Disability); Twelfth Cause Of Action (Retaliation For Complaining Of Discrimination And/Or Harassment On The Basis Of Disability); Thirteenth Cause Of Action (Failure To Prevent Discrimination, Harassment, And Retaliation); Fourteenth Cause Of Action (Failure To Accommodate); Fifteenth Cause Of Action (Failure To Engage In The Interactive Process).
Defendant argues that Plaintiff fails to plead a disability for purposes of FEHA, other than an “issue with her elbows.” (1AC, ¶ 27.) Plaintiff alleges that she was denied a sampling cart for five to six months after she requested it to handle the heavy samples, had to be given medication for her elbows as a result. (Id.) These allegations are sufficient to put Defendant on notice of the issue to be addressed regarding Plaintiff’s disability-based claims for violation of FEHA. “What is important is that the complaint as a whole contain sufficient facts to apprise the defendant of the basis upon which the plaintiff is seeking relief. [Citations.]” (Perkins v. Superior Court, supra, 117 Cal. App. 3d at p. 6, italics added.) It has been consistently held that “ ‘a plaintiff is required only to set forth the essential facts of his case with reasonable precision and with particularity sufficient to acquaint a defendant with the nature, source and extent of his cause of action. [Citation.] . . .” (Doheny Park Terrace Homeowners Assn., Inc. v. Truck Ins. Exchange (2005) 132 Cal.App.4th 1076, 1099 [italics in original].)
Whether or not Plaintiff actually suffered from a disability that qualifies for FEHA protection is an evidentiary matter outside the scope of this motion for judgment on the pleadings.
This ground for judgment on the pleadings is not persuasive.
5. Twenty-First Cause Of Action (Intentional Infliction Of Emotional Distress);
Defendant argues that Plaintiff’s IIED claim is barred by workers’ compensation law.
However, more recent case law than the authorities cited by Defendant holds that workers compensation exclusivity does not bar a cause of action for intentional infliction of emotional distress where the injuries are based on conduct prohibited by FEHA. (Light v. Department of Parks & Recreation (2017) 14 Cal.App.5th 75, 96, 101.)
For reasons we will explain, we conclude the workers' compensation system is not the exclusive remedy for Light's alleged injuries because they are based on conduct prohibited by FEHA. We further conclude Light has raised triable issues of material fact as to her claim against Seals, but not against Dolinar. We will therefore reverse the judgment on this claim as to Seals, but affirm as to Dolinar.
. . .
Given the foregoing discussion, Light may pursue a claim for intentional infliction of emotional distress in the employment context where the conduct at issue violates FEHA and also satisfies the elements of the claim.
(Light v. Department of Parks & Recreation (2017) 14 Cal.App.5th 75, 96, 101 [bold emphasis added].)
Defendant’s statute of limitations argument is not persuasive for the reasons set forth above at 1.
Defendant also argues that the conduct pled does not constitute extreme and outrageous conduct, that Plaintiff suffered “severe emotional distress,” and who caused Plaintiff to suffer such distress. However, termination motivated by unlawful discrimination will support a claim for IIED (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 234).
Of course, the unavailability of noneconomic damages for a termination decision substantially motivated by discrimination does not preclude the possibility of liability in tort for intentional infliction of emotional distress. (See Agarwal v. Johnson (1979) 25 Cal.3d 932 [160 Cal. Rptr. 141, 603 P.2d 58]; Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493 [86 Cal. Rptr. 88, 468 P.2d 216].) Emotional distress damages also may be available when an employee is subject to unlawful harassment under the FEHA. (See, e.g., Rehmani v. Superior Court (2012) 204 Cal.App.4th 945, 958–959 [139 Cal. Rptr. 3d 464].) . . .
(Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 234 [bold emphasis added].)
Plaintiff has alleges that she has suffered severe emotional distress from being deprived of her livelihood. (1AC, ¶¶ 37,197.) This implies that those individual responsible for her termination allegedly caused such severe emotional distress. Although Plaintiff alleges that “Defendant” sent her a Notice of Intent To Terminate letter dated November 18, 2016 (¶¶ 35 -36), the identity of those individuals responsible for the termination decision is a matter for discovery, as their identity is presumptively within the knowledge of Defendant and “ambiguities can reasonably be clarified under modern rules of discovery.” (Lickiss v. Financial Industry Regulatory Authority (2012) 208 Cal.App.4th 1125, 1135.)
This ground for judgment on the pleadings is not persuasive.
The motion for judgment on the pleadings as to the First Amended Complaint is GRANTED without leave to amend as to the sixteenth cause of action and DENIED as to the second, third, fifth, sixth, seventh, eighth, ninth, eleventh, twelfth, thirteenth, fourteenth, fifteenth, twenty-first and twenty-third causes of action.
Although it is not a significant issue on appeal, we note the following concerning the fact that the City and Nelson demurred to the third cause of action of the first amended complaint notwithstanding that their demurrers to an essentially identical third cause of action of the original complaint (based on several largely identical grounds) had been overruled: "The interests of all parties are advanced by avoiding a trial and reversal for defect in pleadings. The objecting party is acting properly in raising the point at his first opportunity, by general demurrer. If the demurrer is erroneously overruled, he is acting properly in raising the point again, at his next opportunity. If the trial judge made the former ruling himself, he is not bound by it. [Citation.] And, if the demurrer was overruled by a different judge, the trial judge is equally free to reexamine the sufficiency of the pleading. [Citations.]" ( Ion Equipment Corp. v. Nelson (1980) 110 Cal.App.3d 868, 877 [168 Cal.Rptr. 361]--discussing the analogous situation of granting a motion for judgment on the pleadings following a prior overruling of a demurrer with respect to the same pleading; see Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 1992) § 7:140, at p. 7-37.) Thus, the City and Nelson were entirely within their rights to demur to the third cause of action of the first amended complaint notwithstanding their prior unsuccessful efforts to demur to the third cause of action of the original complaint.
(Pacific States Enterprises, Inc. v. City of Coachella (1993) 13 Cal.App.4th 1414, 1420 n.3.)