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This case was last updated from Los Angeles County Superior Courts on 01/13/2021 at 00:42:51 (UTC).

SONIA HOLGUIN VS CITY OF LOS ANGELES

Case Summary

On 12/06/2017 SONIA HOLGUIN filed a Civil Right - Other Civil Right lawsuit against CITY OF LOS ANGELES. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is RANDOLPH M. HAMMOCK. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****5997

  • Filing Date:

    12/06/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Civil Right - Other Civil Right

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

RANDOLPH M. HAMMOCK

 

Party Details

Plaintiff and Petitioner

HOLGUIN SONIA

Defendants and Respondents

LOS ANGELES CITY OF

DOES 1 TO 10

CITY OF LOS ANGELES

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

FIGARI BARBARA E. ESQ.

FIGARI BARBARA EMILY

COWAN BARBARA E.

Defendant Attorney

ANTHONY STACEY

 

Court Documents

Notice - NOTICE DEFENDANT COLA'S NOTICE OF DISASSOCIATION OF COUNSEL

4/1/2020: Notice - NOTICE DEFENDANT COLA'S NOTICE OF DISASSOCIATION OF COUNSEL

Order - RULING-DEMURRER TO THIRD AMENDED COMPLAINT/MOTION TO STRIKE

7/1/2019: Order - RULING-DEMURRER TO THIRD AMENDED COMPLAINT/MOTION TO STRIKE

Separate Statement

7/8/2019: Separate Statement

Declaration - DECLARATION OF SALAHUDEEN SHAHEED ISO DF'S OPPOSITION TO PF'S MTQ DF'S SUBPOENAS

8/1/2019: Declaration - DECLARATION OF SALAHUDEEN SHAHEED ISO DF'S OPPOSITION TO PF'S MTQ DF'S SUBPOENAS

Declaration - DECLARATION OF STACEY ANTHONY IN OPPOSITION TO PF'S MTQ DF'S SUBPOENAS FOR EMPLOYMENT AND MEDICAL RECORDS

8/1/2019: Declaration - DECLARATION OF STACEY ANTHONY IN OPPOSITION TO PF'S MTQ DF'S SUBPOENAS FOR EMPLOYMENT AND MEDICAL RECORDS

Notice of Ruling

8/16/2019: Notice of Ruling

Minute Order - MINUTE ORDER (HEARING ON MOTIONS TO COMPEL FURTHER DISCOVERY RESPONSES)

9/23/2019: Minute Order - MINUTE ORDER (HEARING ON MOTIONS TO COMPEL FURTHER DISCOVERY RESPONSES)

DECLARATION OF STACEY ANTHONY EXTENDING TIME TO FILE A RESPONSIVE PLEADING PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 430.41

3/12/2018: DECLARATION OF STACEY ANTHONY EXTENDING TIME TO FILE A RESPONSIVE PLEADING PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 430.41

DECLARATION OF STACEY ANTHONY IN SUPPORT OF DEFENDANT?S DEMURRER TO PLAINTIFF?S COMPLAINT

4/13/2018: DECLARATION OF STACEY ANTHONY IN SUPPORT OF DEFENDANT?S DEMURRER TO PLAINTIFF?S COMPLAINT

DECLARATION OF STACKY ANTHONY IN SUPPORT OF? DEFENDANT'S CONTINUED I)EMURRER TO PLAINTIFF'S I COMPLAINT

5/15/2018: DECLARATION OF STACKY ANTHONY IN SUPPORT OF? DEFENDANT'S CONTINUED I)EMURRER TO PLAINTIFF'S I COMPLAINT

Minute Order -

5/15/2018: Minute Order -

DEFENDANT CITY OF LOS ANGELES REPLY TO PLAINTIFF'S OPPOSITION TO DEFENDANT'S DEMURRER TO PLAINTIFF'S COMPLAINT

7/31/2018: DEFENDANT CITY OF LOS ANGELES REPLY TO PLAINTIFF'S OPPOSITION TO DEFENDANT'S DEMURRER TO PLAINTIFF'S COMPLAINT

FINAL RULING: DEMURRER TO FIRST AMENDED COMPLAINT

8/9/2018: FINAL RULING: DEMURRER TO FIRST AMENDED COMPLAINT

Minute Order -

9/27/2018: Minute Order -

Demurrer - without Motion to Strike

11/27/2018: Demurrer - without Motion to Strike

Amended Complaint - Amended Complaint THIRD

2/25/2019: Amended Complaint - Amended Complaint THIRD

Declaration - DECLARATION OF STACEY ANTHONY ISO DF'S DEMURRER TO PF'S TAC

4/26/2019: Declaration - DECLARATION OF STACEY ANTHONY ISO DF'S DEMURRER TO PF'S TAC

Minute Order - MINUTE ORDER (DEFENDANT CITY OF LOS ANGELES'S DEMURRER TO THIRD AMENDED COM...)

6/3/2019: Minute Order - MINUTE ORDER (DEFENDANT CITY OF LOS ANGELES'S DEMURRER TO THIRD AMENDED COM...)

113 More Documents Available

 

Docket Entries

  • 06/28/2021
  • Hearing06/28/2021 at 09:30 AM in Department 47 at 111 North Hill Street, Los Angeles, CA 90012; Jury Trial

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  • 06/22/2021
  • Hearing06/22/2021 at 08:30 AM in Department 47 at 111 North Hill Street, Los Angeles, CA 90012; Final Status Conference

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  • 02/09/2021
  • Hearing02/09/2021 at 10:00 AM in Department 47 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Motion for Summary Judgment

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  • 12/08/2020
  • Docketat 10:00 AM in Department 47, Randolph M. Hammock, Presiding; Hearing on Motion for Summary Judgment - Not Held - Continued - Stipulation

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  • 11/30/2020
  • DocketStipulation and Order (to continue hearing date on motion for summary judgment); Filed by Sonia Holguin (Plaintiff)

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  • 11/17/2020
  • Docketat 08:30 AM in Department 47, Randolph M. Hammock, Presiding; Hearing on Motion for Summary Judgment - Not Held - Advanced and Continued - by Court

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  • 09/25/2020
  • DocketRETURNED MAIL; Filed by Clerk

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  • 08/31/2020
  • Docketat 09:21 AM in Department 47, Randolph M. Hammock, Presiding; Non-Appearance Case Review

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  • 08/31/2020
  • DocketCertificate of Mailing for ((Non-Appearance Case Review) of 08/31/2020); Filed by Clerk

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  • 08/31/2020
  • DocketMinute Order ( (Non-Appearance Case Review)); Filed by Clerk

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187 More Docket Entries
  • 02/16/2018
  • DocketCASE MANAGEMENT STATEMENT

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  • 02/01/2018
  • DocketSUMMONS

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  • 02/01/2018
  • DocketSummons; Filed by SONIA HOLGUIN (Plaintiff)

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  • 12/11/2017
  • DocketNotice of Case Management Conference; Filed by Clerk

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  • 12/11/2017
  • DocketNOTICE OF CASE MANAGEMENT CONFERENCE

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  • 12/08/2017
  • DocketOrder on Court Fee Waiver (Superior Court); Filed by Clerk

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  • 12/08/2017
  • DocketORDER ON COURT FEE WAIVER

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  • 12/06/2017
  • DocketCOMPLAINT FOR DAMAGES 1. FAILURE TO PROVIDE A REASONABLE ACCOMMODATION IN VIOLATION OF THE FEHA; ETC

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  • 12/06/2017
  • DocketRequest to Waive Court Fees; Filed by SONIA HOLGUIN (Plaintiff)

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  • 12/06/2017
  • DocketComplaint; Filed by SONIA HOLGUIN (Plaintiff)

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Tentative Rulings

Case Number: BC685997    Hearing Date: March 26, 2021    Dept: 47

Tentative Ruling
Judge Theresa M. Traber, Department 47
HEARING DATE: March 26, 2021 TRIAL DATE:  June 28, 2021
CASE:  Sonia Holguin v. City of Los Angeles
CASE NO.:  BC685997
 
MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION
 
MOVING PARTY: Defendant City of Los Angeles
RESPONDING PARTY(S): Plaintiff Sonia Holguin
CASE HISTORY:
12/06/17: Complaint filed.
06/04/18: First Amended Complaint filed.
09/07/18: Second Amended Complaint filed.
02/25/19: Third Amended Complaint filed.
STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:
Plaintiff alleges that the City of Los Angeles failed to provide Plaintiff a private room to pump her breast milk and that she suffered retaliation when she complained.
Defendant City of Los Angeles moves for summary judgment or, alternatively, summary adjudication.
TENTATIVE RULING:
Defendant City of Los Angeles’s motion for summary judgment is DENIED.
Defendant’s alternative motion for summary adjudication is DENIED.
DISCUSSION:
Motion For Summary Judgment
Defendant’s Request for Judicial Notice
Defendant requests that the Court take judicial notice of (1) the complaint filed by Plaintiff in another action (BC644631), and (2) the Clerk’s Notice of Voiding of Filing filed in that action.
These requests are GRANTED per Evidence Code § 452(d) (court records).
Plaintiff’s Request for Judicial Notice
Plaintiff requests that the Court take judicial notice of its own rulings as to Defendant’s demurrers to the second amended complaint and third amended complaint. This request is GRANTED per Evidence Code § 452(d) (court records).
Analysis
As discussed below, Defendant has not demonstrated that it is entitled to prevail as to each cause of action asserted against it. Accordingly, the motion for summary judgment is DENIED.  
The Court will proceed to address the alternative motion for summary adjudication.
Motion For Summary Adjudication
At the outset, the Court notes that Defendant’s notice of motion is self-contradictory as to the alternative motion for summary adjudication. Defendant states in the notice of motion that it “requests that the Court summarily adjudicate Plaintiff’s first and fourth causes of action pursuant to Code of Civil Procedure § 437c(f)(1).” (Notice of Motion, at p. 1, bold emphasis added.) Defendant repeats this statement in its separate statement. (Defendant’s Separate Statement, at p. 5 [“Alternatively, the City requests that the Court summarily adjudicate Plaintiff’s first and fourth causes of action pursuant to Code of Civil Procedure 437c(f)(1).”) Yet only two of Defendant’s seven issues for summary adjudication relate specifically to the first and fourth causes of action. Based on this repeated statement, Issue Nos. 3 (second cause of action), 4-5 (third cause of action), and 7 (fifth cause of action) should not have been included in the motion, as they call for summary adjudication of causes of action other than the first and fourth causes of action. Of course, given that Defendant sought summary judgment, it would not make sense to seek summary adjudication of only two of the five causes of action. To be entitled to summary judgment, Defendant would have to prove that it was entitled to prevail on all five causes of action, not just two. If Defendant had no separate argument as to the second, third, and fifth causes of action apart from its argument that all of Plaintiff’s claims are time-barred, it would still be expected to seek summary adjudication of those causes of action on that basis, as it does in Issue No. 1. Yet despite its statement about only seeking summary adjudication as to the first and fourth causes of action, Defendant also raises separate arguments as to the second, third, and fifth causes of action. In any case, because Plaintiff has addressed all seven of the delineated issues in her opposition, the Court will consider them below.
The Court also notes that Plaintiff’s approach to the separate statement is entirely unhelpful, and her complaint about Defendant’s separate statement amounts to a complaint that Defendant actually followed the rules for submitting a separate statement accompanying a motion for summary adjudication, which require Defendant to “separately” identify “[e]ach cause of action . . . that is the subject of the motion; and . . . [e]ach supporting material fact claimed to be without dispute with respect to the cause of action.” (CRC 3.1350(d)(1), bold emphasis added.) As an example, suppose the Court wants to determine whether Plaintiff disputes any facts relevant to Issue No. 4. The Court can easily look to Defendant’s separate statement to see the facts Defendant alleges are undisputed as to that issue: UMF Nos. 66-78. 
But finding Plaintiff’s position on whether there are factual disputes to be recognized is not so straightforward.  There are no facts labeled Nos. 66-78. It is impossible for the Court to review Plaintiff’s separate statement and determine whether UMF Nos. 66-78 are disputed. Instead, the Court must engage in the time-consuming task of scrutinizing all of Plaintiff’s responses to look for a column in which various issues are listed by number, only to find that the Court must flip back and forth constantly among all of these responses to try to piece together – at the cost of great amounts of time and the potential to miss relevant facts–  all in the effort to try to figure out which of those facts relate to Issue No. 4.
Even then, the Court would be tasked with piecing together the puzzle of which of Plaintiff’s factual responses correspond to UMF Nos. 66-78 in Defendant’s separate statement. Are they in the same order as UMF Nos. 66-78? No. Are the facts corresponding to UMF Nos. 66-78 even all labeled as relevant to Issue No. 4 in Plaintiff’s system? No. As an example, it appears that Plaintiff did not even respond to one of the central facts relevant to issue No. 4 – Issue No. 67. Yet time-consuming scrutiny reveals that Plaintiff disputed that fact – which is identified in Plaintiff’s system as relevant only to “Summary Judgment.” This is also identified as fact no. “5” in Plaintiff’s system – with no reference whatsoever to UMF No. 67. It is only by engaging in the painstaking task of searching Plaintiff’s statement – without regard to her characterization of the relevance of each fact and without a convenient reference to Defendant’s numbers – to try to locate identical language. 
Plaintiff should keep in mind that the rules applicable to the separate statement exist for a reason. Indeed, if Defendant took the approach to its separate statement that Plaintiff did, its motion for summary adjudication could have been denied for failure to comply with the rules. Plaintiff’s approach thwarts the Court’s ability to compare Plaintiff’s responses to Defendant’s separate statement in an efficient way. Moreover, typically the responsive separate statement is the most helpful document in determining whether triable issues of material fact exist. Not so here. Plaintiff would do well to consider that the Court must consider a motion for summary adjudication issue by issue, not as a whole, as Plaintiff’s separate statement forces the Court to attempt to do.
Issue No. 1: “Plaintiff’s five causes of action brought under the Fair Employment and Housing Act are time-barred.”
Defendant argues that all five of Plaintiff’s causes of action are time-barred. Specifically, Defendant argues that, although Plaintiff’s original DFEH charge in 2015 was timely, she failed to file and prosecute her original 2016 lawsuit, and therefore her current lawsuit is time-barred because it was not filed within one year of the DFEH charge. (Motion, at pp. 8, 10.) Plaintiff argues, in opposition, that the “continuing violation” doctrine applies and that her lawsuit was, therefore, timely. Plaintiff also notes that this Court has already ruled multiple times that “Plaintiff’s claims satisfy the continuing violations doctrine.” (Oppo., at p. 2.)
As to the latter argument, although Plaintiff is correct that this Court has previously determined that her allegations were sufficient based on the continuing violation doctrine, Defendant could still show that the continuing violation doctrine does not apply based on the undisputed facts. For purposes of a demurrer, the Court may only rely on the pleading and judicially noticeable facts; in the summary judgment context, the Court’s inquiry is broader.
In any case, for the reasons discussed in connection with Issues 2, 3, and 6 below, at least three of Plaintiff’s causes of action are not time-barred. Accordingly, the motion for summary adjudication is DENIED as to Issue No. 1, which would require all five of Plaintiff’s causes of action to be time-barred.
Issue No. 2: “Plaintiff does not have a timely cause of action for failure to accommodate because she no longer requested or needed an accommodation for breastfeeding during the relevant period.”
FEHA provides an independent cause of action for an employer's failure “to make reasonable accommodation for the known physical or mental disability of an applicant or employee” unless the accommodation would cause “undue hardship” to the employer. (Gov’t Code § 12940(m)(1).) Once an employer is aware of a disability, it has an “affirmative duty” to make reasonable accommodations for the employee. (Cal. Code Regs., tit. 2, § 11068, subd. (a).) 
Defendant presents undisputed evidence that Plaintiff was no longer breastfeeding as of July 2016. (UMF No. 53 and supporting evidence.) Also, Plaintiff’s issues with the lactation room were resolved by February 18, 2015. (UMF No. 52 and supporting evidence.) And Plaintiff’s new supervisor in the Sanitation Department, Jennifer Pinkerton, did not discuss breastfeeding or Plaintiff’s issues with the lactation room with Plaintiff. (UMF Nos. 56-57 and supporting evidence.) Thus, Defendant argues that Plaintiff’s first cause of action for failure to provide reasonable accommodation is untimely.
Under the continuing violation doctrine, “an employer is liable for actions that take place outside the limitations period if these actions are sufficiently linked to unlawful conduct that occurred within the limitations period.” (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1056.) There are two applicable limitations periods here: first, an administrative complaint must be filed within “one year from the date upon which the alleged unlawful practice . . . occurred.” (Gov’t Code § 12960(d).) Second, a civil suit must be filed within one year of receiving a right-to-sue notice. (Gov’t Code § 12965(b).)
In the June 2017 DFEH Complaint, Plaintiff included allegations of being denied reasonable accommodation related to her breastfeeding and/or pumping needs and the fact that her employer retaliated against her for requesting accommodation (i.e., failure to engage in good faith interactive process).  The filing of the amended claim on June 30, 2017 (to allege continuing failure to accommodate/engage in good faith interactive process) was within one year of the date Plaintiff was forced to stop breastfeeding in July 2016.  
Allegations of a pattern of reasonably frequent and similar acts may, in a given case, justify treating the acts as an indivisible course of conduct actionable in its entirety, notwithstanding that the conduct occurred partially outside and partially inside the limitations period. (Yanowitz, at p. 1059; Richards, at p. 823; see Komarova v. National Credit Acceptance, Inc. (2009) 175 Cal.App.4th 324, 345 [95 Cal. Rptr. 3d 880] [applying the doctrine to harassing debt collection activities].)
(Aryeh v. Canon Business Solutions, Inc. (2013) 55 Cal.4th 1185, 1198.)
The Court finds that a triable issue of material fact exists as to whether Plaintiff can show Defendant’s continuing violation of its failure to provide her with a reasonable accommodation.  Plaintiff alleges that she was denied her request for a reasonable accommodation related to her breastfeeding and/or pumping needs until at least July 2016, as evidenced by the fact that she was subjected to being filmed while attempting to pump, unsanitary conditions, unlocked doors, and continuing to be walked in on by at least one employee who entered from a door in the public hallway, totally exposing Plaintiff while she was topless expressing milk. (3AC ¶ 24.)  Plaintiff also disputes that Pinkerton never discussed the lactation room or breastfeeding with her, indicating that Pinkerton commented on these issues in October 2016. (Cowan Decl. Exh. A, Holguin Depo. 428:5-25.) Thus, fact issues remain regarding whether Defendant’s failure to accommodate was continuing.
Accordingly, the motion for summary adjudication is DENIED as to Issue No. 2.
Issue No. 3: “Plaintiff does not have a timely cause of action for failure to engage in the interactive process because she did not require an accommodation for breastfeeding during the relevant period.” 
Defendant also argues that Plaintiff’s second cause of action for failure to engage in the interactive process is untimely, for the same reasons discussed in connection with Issue No. 2.
Under FEHA, an employer must engage in a good faith interactive process with the disabled employee to explore the alternatives to accommodate the disability. (Gov. Code, § 12940, subd. (n); Claudio v. Regents of the University of California (2005) 134 Cal.App.4th 224, 242 [35 Cal. Rptr. 3d 837] (Claudio) [employer may not fail to engage in a timely, good faith interactive process to determine effective reasonable accommodations].) “An employee may file a civil action based on the employer's failure to engage in the interactive process.” (Claudio, supra, at p. 243.)  Failure to engage in this process is a separate FEHA violation independent from an employer's failure to provide a reasonable disability accommodation, which is also a FEHA violation. (Gov. Code, § 12940, subd. (m); Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34, 61 [43 Cal. Rptr. 3d 874] (Gelfo); Claudio, supra, at p. 242 [employer may not fail to make a reasonable accommodation].) An employer may claim there was no available reasonable accommodation. But if it did not engage in a good faith interactive process, “it cannot be known whether an alternate job would have been found.” (Claudio, supra, at p. 245.) The interactive process determines which accommodation is required. (Ibid.; Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 263, fn. 7 [102 Cal. Rptr. 2d 55] (Jensen).) Indeed, the interactive process could reveal solutions that neither party envisioned.
(Wysinger v. Automobile Club of Southern California (2007) 157 Cal.App.4th 413, 424-425.)
Typically, an applicant or employee triggers the employer's obligation to participate in the interactive process by requesting an accommodation. (§ 12940, subd. (n).) Although it is the employee's burden to initiate the process, no magic words are necessary, and the obligation arises once the employer becomes aware of the need to consider an accommodation. Each party must participate in good faith, undertake reasonable efforts to communicate its concerns, and make available to the other information which is available, or more accessible, to one party. Liability hinges on the objective circumstances surrounding the parties' breakdown in communication, and responsibility for the breakdown lies with the party who fails to participate in good faith. (See Jensen, supra, 85 Cal.App.4th at p. 266; see also Allen v. Pacific Bell (9th Cir. 2003) 348 F.3d 1113, 1115 [ADA].) 
(Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34, 54-62 n.22.)
For the reasons discussed in connection with Issue No. 2, the motion for summary adjudication is DENIED as to Issue No. 3.  The evidence discussed above about the ongoing deficiencies in the accommodations provided by Defendant reveal its continuing failure to participate in the interactive process in good faith.
Issue No. 4: “Plaintiff cannot establish a prima facie case of retaliation because she did not suffer from an adverse employment action.” 
The elements of a claim for retaliation in violation of Government Code § 12940(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.) Here, Defendant argues that Plaintiff’s third cause of action for retaliation fails because Plaintiff did not suffer an adverse employment action.
When a plaintiff alleges retaliatory employment termination either as a claim under the FEHA or as a claim for wrongful employment termination in violation of public policy, and the defendant seeks summary judgment, California follows the burden-shifting analysis of McDonnell Douglas Corp. v Green (1973) 411 U.S. 792 [36 L. Ed. 2d 668, 93 S. Ct. 1817] to determine whether there are triable issues of fact for resolution by a jury. (Citation omitted.) 
(Loggins v. Kaiser Permanente International (2007) 151 Cal.App.4th 1102, 1108-09.)
An employer moving for summary judgment on a FEHA cause of action may satisfy its initial burden of proving a cause of action has no merit by showing either that one or more elements of the prima facie case “is lacking, or that the adverse employment action was based on legitimate nondiscriminatory factors.” 
(Soria v. Univision Radio Los Angeles, Inc. (2016) 5 Cal.App.5th 570, 591-592, bold emphasis added.) Here, Defendant argues that the “adverse action” element is lacking.
The term “adverse employment action” has become a “familiar shorthand expression referring to the kind, nature, or degree of adverse action against an employee that will support a cause of action under a relevant provision of an employment discrimination statute.” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1049.) As to retaliation, it is an unlawful employment practice for an employer to “discharge, expel, or otherwise discriminate against any person because the person 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’t Code § 12940(h).) 
The FEHA does not expressly define “discriminate” or “otherwise discriminate” as used in section 12940(h), but section 12940, subdivision (a) (hereafter section 12940(a))—the initial and basic antidiscrimination provision of the FEHA applicable to employers—provides in somewhat similar fashion that it is an unlawful employment practice for an “employer, because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age or sexual orientation of any person to refuse to hire or employ the person or to refuse to select the person for a training program leading to employment, or to bar or to discharge the person from employment or from a training program leading to employment, or to discriminate against the person in compensation or in terms, conditions or privileges of employment.”
(Yanowitz, supra, 36 Cal.4th at 1049.) The term “otherwise discriminate” refers to and encompasses the “same forms of adverse employment activity that is [sic] actionable under section 12940(a). (Id. at 1050-1051.) In other words, “an employee must demonstrate that he or she has been subjected to an adverse employment action that materially affects the terms, conditions, or privileges of employment.” (Id. at 1051.)
Retaliation claims are inherently fact specific, and the impact of an employer's action in a particular case must be evaluated in context. Accordingly, although an adverse employment action must materially affect the terms, conditions, or privileges of employment to be actionable, the 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.
(Id. at 1052.)
This concept is “not limited to adverse employment actions that impose an economic detriment or inflict a tangible psychological injury upon an employee.” (Ibid.) 
[T]he determination of what type of adverse treatment properly should be considered discrimination in the terms, conditions, or privileges of employment is not, by its nature, susceptible to a mathematically precise test, and the significance of particular types of adverse actions must be evaluated by taking into account the legitimate interests of both the employer and the employee. Minor or relatively trivial adverse actions or conduct by employers or fellow employees that, from an objective perspective, are reasonably likely to do no more than anger or upset an employee cannot properly be viewed as materially affecting the terms, conditions, or privileges of employment and are not actionable, but adverse treatment that is reasonably likely to impair a reasonable employee's job performance or prospects for advancement or promotion falls within the reach of the antidiscrimination provisions of sections 12940(a) and 12940(h).
(Id. at 1054-1055.) Moreover, “there is no requirement that an employer's retaliatory acts constitute one swift blow, rather than a series of subtle, yet damaging, injuries.” (Id. at 1055.) Rather, the allegations may be considered “collectively.” (Id. at 1056.) In Yanowitz, actions such as soliciting negative information about the plaintiff, who had previously been highly rated, refusing to review her response to the information, and using it to undermine her effectiveness “constituted more than mere inconveniences or insignificant changes in job responsibilities” and were therefore sufficient for the plaintiff to satisfy the adverse action element of her prima facie case. (Id. at 1060-1061.)
Plaintiff alleges that Defendant retaliated against her “by making conditions of her employment worse after she engaged in one or more protected activities, and taking other adverse employment actions against Plaintiff, including but not limited to purposefully not addressing her complaints, demotion, change of job duties, and other material changes in the terms and conditions of Plaintiff’s employment with Defendant.” (3AC ¶ 63, also labeled 52.) Plaintiff also alleges that she was “forced to transfer, enduring both a demotion and a pay cut, as a result of the retaliation directed at her after she engaged in the protected activity of requesting accommodations for breastfeeding.” (Ibid.) Even after she transferred, Plaintiff alleges that her former supervisor made derogatory remarks about her to her new supervisor and “sought to negatively influence Ms. Holguin’s performance evaluations in her new position.” (Ibid.) Plaintiff also alleges that the “entire reason” she transferred to a new position “was to remove herself from being subjected to retaliatory behavior, but the retaliation followed her even into her new position.” (Ibid.) This included “having her duties stripped and receiving a negative evaluation,” as well as “performance coaching, and discipline.” (Ibid.)
Here, Defendant presents evidence that Plaintiff transferred to the City’s Sanitation Department because she “tested and promoted and was hired as a management assistant.” (UMF No. 67; Exh. B [Holguin Depo. 29:20-23, 30:19-22].) This position was “more prestigious,” with more opportunities for promotion. (UMF No. 69; Exh. B [Holguin Depo. 47:15-22].) Plaintiff sought this promotion knowing that she would take a pay “cut” because she was moving to a new classification. (UMF No. 71; Holguin Depo. 33:3-20, 59:12-19, 430:22-431:2.) Plaintiff also received more than one positive performance evaluation in her new position. (UMF Nos. 72-73 and supporting evidence.) Although she filed a grievance in connection with an evaluation she received in March 2017, Plaintiff received accurate feedback and was provided with areas for improvement. (UMF Nos. 74-75 and supporting evidence.) Plaintiff also “likes” her current position. (UMF No. 78; Holguin Depo. 41:12-14.) 
Defendant’s evidence does not address all of Plaintiff’s allegations of retaliation, such as her allegation that her former supervisor sought to negatively influence her performance evaluations in her new position and that her duties were restricted. Even assuming that Defendant met its burden, however, the Court finds that Plaintiff has shown that there are triable issues of material fact as to whether she suffered an adverse employment action. For example, Plaintiff disputes that she transferred to pursue a better opportunity despite the accompanying pay cut; Plaintiff testified that she knowingly took the pay cut because she “needed to get out of Finance” and “couldn’t take it anymore.” (Cowan Decl., Exh. A, Holguin Depo. 34:17-21.) Plaintiff also testified that the probationary evaluation she received in her new position, which indicated that she “need[ed] improvement” in some areas, represented a “drastic change” from her evaluation from the previous three-month period.” (Id. at 65:1-66:15.) Plaintiff also testified to having to sort through her supervisor’s trash. (Id. at 428:5-25.) Collectively, this evidence presents a triable issue of material fact as to whether Plaintiff suffered an adverse employment action.
Accordingly, the motion for summary adjudication is DENIED as to Issue No. 4.
Issue No. 5: “Plaintiff cannot establish a prima facie case of retaliation because she cannot establish the causal nexus.” 
As noted in connection with Issue No. 4, the elements of a claim for retaliation in violation of Government Code § 12940(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.) Here, Defendant argues that Plaintiff’s third cause of action for retaliation fails because Plaintiff cannot show a causal link between Defendant’s retaliatory animus and the adverse action.
Defendant argues that Plaintiff cannot show a causal link between her protected acts in Finance and any retaliation in her new position because (1) there was too much time in between the acts, (2) she had a different supervisor in her new position, and (3) her new supervisor had provided her with positive evaluations before the negative one in 2017, many years after her protected activity in 2013 and 2014.
Defendant’s arguments rest on the same faulty premise as its arguments above that Plaintiff’s action is time-barred: namely, that all of the relevant activity occurred in 2013 and 2014. As discussed in connection with Issues 2 through 4 above, there are triable issues of material fact as to continuing violations relevant to Plaintiff’s causes of action.
Accordingly, the motion for summary adjudication is DENIED as to Issue No. 5.
Issue No. 6: “Plaintiff does not have a timely cause of action for harassment/hostile work environment because none of her timely complaints relate to her protected status.”
To state a prima facie case of disability harassment, Plaintiff must show (1) that she suffers from a known disability, (2) that she was subjected to unwelcome harassment, (3) that the harassment complained of was based on her disability, and (4) that the harassment was sufficiently severe or pervasive to alter the conditions of her employment and create an abusive environment. (Etter v. Veriflo Corp. (1998) 67 Cal.App.4th 457, 463-66.) Here, Defendant argues that the harassment Plaintiff complained of was not based on her disability (her pregnancy).
As discussed above in connection with Issue No. 4, there are triable issues of material fact as to whether the harassment Plaintiff complains of continued after she transferred to her new position. For example, as discussed above, Plaintiff has come forward with evidence that she was assigned the task of going through her new supervisor’s trash after that supervisor asked her whether she had retained a lawyer in connection with her complaints about her lactation accommodation. (Cowan Decl. Exh. A, Holguin Depo. 428:5-25.)  This evidence creates an inference that the harassment to which Plaintiff was subjected arose because of her pregnancy and her efforts to seek accommodation for it.  
Accordingly, the motion for summary adjudication is DENIED as to Issue No. 6.
Issue No. 7: “Plaintiff’s derivative cause of action for failure to prevent harassment and retaliation fails because her underlying causes of action all fail as a matter of law.”
There can be no liability for an employer’s failure to prevent harassment, discrimination, or retaliation unless actionable harassment, discrimination, or retaliation occurred. (Carter v. California Dept. of Veterans Affairs (2006) 38 Cal.4th 914, 915 n.4; Jumaane v. City of Los Angeles (2015) 241 Cal.App.4th 1390, 1410.) 
For the reasons discussed above, Plaintiff’s harassment and retaliation claims under FEHA are viable. Accordingly, the motion for summary adjudication as to Issue No. 7 is DENIED.
Moving party to give notice, unless waived.
IT IS SO ORDERED.
Dated:  March 26, 2021 ___________________________________
Theresa M. Traber
Judge of the Superior Court
Any party may submit on the tentative ruling by contacting the courtroom via email at  Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing.  All interested parties must be copied on the email.  It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.