SUNNY ZIA VS TOM BALDWIN, ET AL.

Tentative Rulings

Case Number: *******4654 Hearing Date: August 15, 2022 Dept: 31

MOTION TO CONTINUE TRIAL DATE IS GRANTED

Background

On July 2, 2021, Sunny Zia (“Plaintiff”) initiated the present action by filing a Complaint against City of Long Beach, City of Long Beach Harbor Department, Mark Erickson, Tom Baldwin, and Stacey Lewis (collectively, “Defendants”).

On June 20, 2022, Plaintiff filed the operative First Amended Complaint against Defendants. Plaintiff’s First Amended Complaint alleges the following causes of action: (1) To Redress Unlawful Harassment and Abusive Working Conditions; (2) To Redress Sex Discrimination; (3) To Redress National Origin Discrimination; (4) To Redress Unlawful Department of Fair Employment and Housing Discrimination; (5) To Redress Unlawful Whistleblower Retaliation; (6) To Redress Privacy Violations; and (7) To Redress Failure to Prevent Discrimination, Harassment and Retaliation.

On July 20, 2022, Defendants filed a Motion to Continue Trial Date and Trial Related Dates.

Legal Standard

Trial dates are firm to ensure prompt disposition of civil cases. (Cal. Rules of Court, Rule 3.1332, subd. (a).) Continuances are thus generally disfavored. (Id., Rule 3.1332, subd. (b).) Nevertheless, the trial court has discretion to continue trial dates. (Hernandez v. Superior Court (2004) 115 Cal.App.4th 1242, 1246.) Each request for continuance must be considered on its own merits and is granted upon an affirmative showing of good cause. (Cal. Rules of Court, Rule 3.1332, subd. (c); Hernandez, supra, 115 Cal.App.4th at 1246.) Circumstances that may indicate good cause include: (1) the unavailability of an essential lay or expert witness due to death, illness, or other excusable circumstances; (2) the unavailability of a party due to death, illness, or other excusable circumstances; (3) the unavailability of trial counsel due to death, illness, or other excusable circumstances; (4) the substitution of trial counsel where there is an affirmative showing that the substitution is required in the interests of justice; (5) the addition of a new party if (A) the new party has not had a reasonable opportunity to conduct discovery and prepare for trial, or (B) the other parties have not had a reasonable opportunity to conduct discovery and prepare for trial in regard to the new party’s involvement in the case; (6) a party’s excused inability to obtain essential testimony, documents, or other material evidence despite diligent efforts; or (7) a significant, unanticipated change in the status of the case as a result of which the case is not ready for trial. (Cal. Rules of Court, Rule 3.1332, subd. (c).)

The Court must also consider such relevant factors as: (1) the proximity of the trial date; (2) whether there was any previous continuance, extension of time, or delay of trial caused by any party; (3) the length of the continuance requested; (4) the availability of alternative means to address the problem that gave rise to the motion or application for a continuance; (5) the prejudice that parties or witnesses will suffer as a result of the continuance; (6) if the case is entitled to a preferential trial setting, the reasons for that status and whether the need for a continuance outweighs the need to avoid delay; (7) the court’s calendar and the impact of granting a continuance on other pending trials; (8) whether trial counsel is engaged in another trial; (9) whether all parties have stipulated to a continuance; (10) whether the interests of justice are best served by a continuance, by the trial of the matter, or by imposing conditions on the continuance; and (11) any other fact or circumstance relevant to the fair determination of the motion or application. (Cal. Rules of Court., Rule 3.1332, subd. (d).)

“On motion of any party, the [C]ourt may grant leave to complete discovery proceedings, or to have a motion concerning discovery heard, closer to the initial trial date, or to reopen discovery after a new trial date has been set. This motion shall be accompanied by a meet and confer declaration under [Code of Civil Procedure] section 2016.040.” (Code Civ. Proc., 2024.050, subd. (a).)

In exercising its discretion to grant or deny this motion, the Court shall take into consideration any matter relevant to the leave requested, including, but not limited to the following: (1) the necessity and the reasons for the discovery, (2) the diligence or lack of diligence of the party seeking the discovery or the hearing of a discovery motion, and the reasons that the discovery was not completed or that the discovery motion was not heard earlier, (3) any likelihood that permitting the discovery or hearing the discovery motion will prevent the case from going to trial on the date set, or otherwise interfere with the trial calendar, or result in prejudice to any other party, and (4) the length of time that has elapsed between any date previously set, and the date presently set, for the trial of the action. (Code Civ. Proc., 2024.050, subd. (b).)

Discussion

Defendants, collectively, move for an Order continuing the trial date for four (4) months, from December 19, 2022 to approximately May 23, 2023, on the ground Defendants have been unable to complete discovery, despite Defendants’ diligent efforts, pursuant to California Rules of Court, Rule 3.1332, subdivision (c)(6). (Notice of Motion, at pp. 2-4.) Despite service of the present Motion upon Plaintiff, Plaintiff has not filed an Opposition to Defendants’ request for a trial continuance.

Following review of Defendants’ Motion and accompanying evidentiary declaration, the Court finds Defendants have sufficiently demonstrated good cause to continue the trial date in this action, pursuant to California Rules of Court, Rule 3.1332, subdivision (c)(6). (Cal. Rules of Court, Rule 3.1332, subd. (c)(6) [“ Circumstances that may indicate good cause include: . . . (6) A party's excused inability to obtain essential testimony, documents, or other material evidence despite diligent efforts.”].) The Court finds, despite Defendants’ diligent efforts, Defendants are effectively prevented from completing necessary discovery prior to the date Defendants are required to file a Motion for Summary Judgment. Defendants demonstrate, less than two (2) months ago, Plaintiff filed the operative First Amended Complaint on June 20, 2022. Plaintiff’s operative First Amended Complaint includes numerous new allegations, which were not previously included within the original Complaint. For the purposes of investigating Plaintiff’s new allegations, Defendants noticed Plaintiff’s deposition on June 30, 2022; however, Plaintiff’s counsel effectively postponed Plaintiff’s deposition to sometime on or after August 19, 2022. (Sealy Decl., 6-9.) In conjunction with Plaintiff’s new factual allegations and Plaintiff’s inability to undergo deposition until sometime on or after August 19, 2022, Defendants face an impending procedural deadline to file a Motion for Summary Judgment on September 2, 2022. Defendants have demonstrated that, without a trial continuance, Defendants will be unable to complete discovery prior to such a deadline, despite Defendants’ reasonable efforts. Further, the Court recognizes Plaintiff has not filed Opposition to Defendants’ request for a trial continuance, and Defendants’ requested continuance will be the first continuance in this action. (Cal. Rules of Court, Rule 3.1332, subd. (d)(2).)

The Court finds Defendants have sufficiently demonstrated good cause to continue the trail date pursuant to California Rules of Court, Rule 3.1332, subdivision (c)(6). (Cal. Rules of Court, Rule 3.1332, subd. (c)(6).) The Court additionally finds good cause to continue all trial related deadlines in accordance with the new trial date. (Code Civ. Proc., 2024.050, subd. (a).)

Conclusion

Defendants’ Motion to Continue Trial and Trial Related Deadlines is GRANTED. Trial is continued to July 17, 2023, at 10 a.m. Final Status Conference is continued to July6, 2023, at 9 a.m.

Defendants’ to give notice.

The parties are strongly encouraged to attend all scheduled hearings virtually or by audio. Effective July 20, 2020, all matters will be scheduled virtually and/or with audio through the Court’s LACourtConnect technology. The parties are strongly encouraged to use LACourtConnect for all their matters. All masking protocols will be observed at the Courthouse and in the courtrooms.

Case Number: *******4654 Hearing Date: May 20, 2022 Dept: 31

DEMURRER IS SUSTAINED IN PART; MOTION TO STRIKE IS DENIED

Background

On July 2, 2021, Plaintiff Sunny Zia (“Plaintiff”), filed the instant action against Defendants City of Long Beach and its Harbor Department, Mark Erickson (“Erickson”), Tom Baldwin (“Baldwin”), Stacey Lewis (“Lewis), and Doe Defendants 1-5. The Complaint asserts causes of action for:

(1) Unlawful harassment and abusive work conditions;

(2) Sex discrimination;

(3) National origin discrimination;

(4) Unlawful DFEH-retaliation;

(5) Unlawful whistleblower retaliation;

(6) Privacy violations; and

(7) Failure to prevent discrimination, harassment, and retaliation.

The allegations in the Complaint can be summarized as follows. Plaintiff, a female Senior Civil Engineer of Jewish/Persian descent, has been employed by the City of Long Beach and its Harbor Department (collectively, the “City”) on a permanent basis since 2010. (Compl., 1.) Plaintiff previously worked as a Contract Civil Engineer for two years before her permanent hire. (Compl., 1.) However, her upward promotability has been stymied by the Defendants because she dared to oppose discriminatory practices and exposed incomplete reporting by her male superiors. (Compl., 1.) For example, defendant Erickson was promoted over Plaintiff to the Deputy Chief Harbor Engineer position. (Compl., 3.) Baldwin perpetuated an “old boys club” atmosphere by rewarding Erickson and another male employee with positions which Plaintiff sought. (Compl., 4.) Plaintiff is also suing defendant Lewis, the head of the Harbor Department’s Human Resources Division, because (among other things) Lewis falsely accused Plaintiff in order to impede and halt Plaintiff’s promotional mobility within the department. (Compl., 5.)

Defendants City of Long Beach and its Harbor Department, Mark Erickson, Tom Baldwin, Stacey Lewis (collectively, “Defendants”) demur to the first, third, and sixth causes of action in the Complaint. Plaintiff opposes the demurrer.

Defendants also filed a motion to strike portions of the Complaint. Plaintiff opposes the motion.

Legal Standard on Demurrer

A demurrer for sufficiency tests whether the complaint states a cause of action. Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747. When considering demurrers, courts read the allegations liberally and in context. (Wilson v. Transit Authority of City of Sacramento (1962) 199 Cal.App.2d 716, 720-21.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleading alone, and not on the evidence or facts alleged.” (E-Fab, Inc. v. Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.) As such, the court assumes the truth of the complaint’s properly pleaded or implied factual allegations. (Id.) However, it does not accept as true deductions, contentions, or conclusions of law or fact. (Stonehouse Homes LLC v. City of Sierra Madre (2008) 167 Cal.App.4th 531, 538.) A demurrer may be sustained “only if the complaint fails to state a cause of action under any possible legal theory.” (Sheehan v. San Francisco 49ers, Ltd. (2009) 45 Cal.4th 992, 998.)

Legal Standard for Motion to Strike

Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof. (Code of Civ. Proc., 435, subd. (b)(1); Cal. Rules of Court, Rule 3.1322(b).) The court may, upon a motion or at any time in its discretion and upon terms it deems proper: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (Code of Civ. Proc., 436, subds. (a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].)

DEMURRER

Defendants demur to the first, third, and sixth causes of action in the Complaint, contending that they are uncertain and fail to state facts sufficient to constitute a cause of action. Defendants additionally demur to the first cause of action for harassment and abusive work conditions on the ground that it is time-barred. Plaintiff opposes the demurrer.

A. Meet and Confer

Before filing a demurrer, the moving party must meet and confer in person or by telephone with the party who filed the pleading to attempt to reach an agreement that would resolve the objections to the pleading. (Civ. Code Proc., 430.41.)

Counsel’s declaration satisfies the meet and confer requirement. (Demurrer, Jenkins Decl. 3-10.)

B. Uncertainty

A pleading is uncertain if it is ambiguous or unintelligible. (Code Civ. Proc., 430.10, subd. (f).) A demurrer for uncertainty may lie if the failure to label the parties and claims renders the complaint so confusing that the defendant cannot tell what he or she is supposed to respond to. (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.) However, “[a] demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616.)

Here, the Complaint is not so incomprehensible that demurring parties cannot reasonably determine the issues being raised against it. Accordingly, the Court overrules the demurrer on the ground of uncertainty.

C. First Cause of Action for Harassment and Abusive Work Conditions

1. The Parties’ Arguments

Defendants contend that the first cause of action is uncertain or fails to state facts sufficient to constitute a cause of action for under the Fair Employment and Housing Act (“FEHA”) for the following reasons.

First, the Complaint fails to allege a protected class.

Second, the Complaint fails to allege conduct that constitutes harassment. The acts that Plaintiff alleges (e.g., regarding personnel management) support discrimination claims not harassment. Plaintiff alleges three events that constitute harassment: (1) Baldwin selected Erickson (instead of Plaintiff) for the Deputy Chief Harbor Engineer position, (2) Baldwin and Erickson removed Plaintiff from the Pier B project, and (3) Erickson and Baldwin lowered her performance evaluation rating. (Compl., 20-21, 32.) However, even though the first cause of names Lewis, none of the three events are attributed to Lewis. Therefore, Plaintiff fails to state a claim for harassment against Lewis.

Third, factual allegations in the Complaint against Lewis are time-barred and some are irrelevant to Plaintiff’s claims. They are time barred because Plaintiff alleges that Lewis harbored animus against her between 2008 and 2011. They are irrelevant because they allege that part of the reason Lewis harbored ill will towards Plaintiff was because of her capabilities and engineering expertise, among other things. However, Plaintiff’s capabilities and engineering expertise are not relevant to any protected class.

Therefore, Defendants argue, the Court should deny Plaintiff leave to amend because any amendment would merely be duplicative of her four discrimination and retaliation claims.

In opposition, Plaintiff contends that the Complaint sufficiently pleads the first cause of action for the following reasons. First, the Complaint alleges a protected class by alleging that Defendant’s harassment was because of Plaintiff’s sex (female), national origin (Persian Jewish), and/or complaints. Second, Defendants fail to cite the leading California Supreme Court case, Roby v. McKesson Corp. (2009) 47 Cal. 4th 686 (“Roby”), which recognized that personnel management decisions can support a harassment claim. Third, the Complaint has alleged harassing conduct by Lewis that took place in recent years. For example, the Complaint alleges that Lewis has continued to withhold Plaintiff’s 2016 through 2018 performance evaluations and gave Mario Cordero the false impression that the issue was resolved as of October 2020.

In reply, Defendants contend the following.

First, in the Supreme Court case Roby that Plaintiff cites, the plaintiff there not only alleged that the defendants engaged in personnel management decisions, but also alleged harassing acts outside of those decisions, including, demeaning comments about Plaintiff’s body. Therefore, “[w]hile Roby may permit Plaintiff to combine her claims regarding personnel management decisions with others to demonstrate harassment, a Complaint devoid of allegations about activities that are considered harassment, such as slurs, assault or physical interference with normal movement, derogatory images, is merely a duplication of her claim for discrimination.” (Reply, p. 4:2-7.)

Second, the Complaint is ambiguous because Plaintiff uses three categories of protected status interchangeably: gender, national origin, and whistleblower status. However, making complaints (whistleblower status) is not a protected class under the FEHA.

Third, Plaintiff argues that Lewis engaged in harassing acts in recent years by withholding performance evaluations, lying to Mario Cordero, and encouraging other members of the College Board of Trustees to publicly defame Plaintiff and divide on the basis of Christianity and Judaic principles. However, as to the withheld evaluations, the Complaint alleges that it was Baldwin and Erickson who withheld the evaluations, not Lewis. As to lying to Cordero, the Complaint merely alleges that Lewis represented those evaluations had been issued. As to Lewis’s involvement with the Board of Trustees, that allegation is “so vague” that it does not sufficiently allege what Lewis actually did.

Fourth, Plaintiff has not identified facts demonstrating an animus based on national origin.

2. Discussion

“To establish a prima facie case of a hostile work environment, [the plaintiff] must show that (1) [plaintiff] is a member of a protected class; (2) [plaintiff] was subjected to unwelcome harassment; (3) the harassment was based on[plaintiff’s] protected status; (4) the harassment unreasonably interfered with[plaintiff’s] work performance by creating an intimidating, hostile, or offensive work environment; and (5) defendants are liable for the harassment.” (Ortiz v. Dameron Hospital Assn. (2019) 37 Cal.App.5th 568, 581.)

(a) Protected Class

Despite Defendants’ contentions, the Complaint alleges the first element, that Plaintiff was a member of a protected class. The Complaint alleges Plaintiff’s sex (female) and national origin (Jewish and Persian descent). However, the Court agrees with the Defendants, that “making complaints” is not a protected class under the FEHA. (See Gov. Code, 12940 (a) [providing that it is an unlawful employment practice for an employer to discriminate against an employee because of the employee’s “race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or veteran or military status …”].)

(b) Harassing Conduct

The parties dispute whether the Complaint alleges the second element, unwelcome harassment.

In Roby, the California Supreme Court clarified that: “[a]lthough discrimination and harassment are separate wrongs [under the FEHA], they are sometimes closely interrelated, and even overlapping, particularly with regard to proof.” (Roby, supra, 47 Cal.4th at p. 707.)

In so holding, the Court explained as follows.

“In [Miller v. Department of Corrections (2005) 36 Cal.4th 446 (“Miller”)], we considered whether evidence of widespread sexual 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.” (Roby, supra, 47 Cal.4th at pp. 707–708.)

“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.” (Roby, supra, 47 Cal.4th at p. 708 [emphasis added].) Although the Miller plaintiffs were not subject to any demands for sexual favors, the Court held that “the plaintiffs had nevertheless stated a prima facie case of harassment in violation of the FEHA,” because “‘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.’ [Citations.]” (Ibid. [emphasis added].) “This demeaning message, we held, could give rise to an actionable hostile work environment.” (Ibid. [emphasis added].)

The Supreme Court found that its “decision in Miller [was] wholly consistent with [Reno v.Baird (1998) 18 Cal.4th 640], because [Miller] 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.” (Roby, supra, 47 Cal.4th at p. 708 [emphasis added].) Therefore “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.” (Ibid. [emphasis added].)

Accordingly, the issue is twofold: (1) whether the Complaint alleges that Defendants’ alleged official employment actions conveyed a demeaning message related to Plaintiff’s sex (female) or national origin (Jewish of Persian descent); and (2) whether such message was so severe or pervasive so as to alter Plaintiff’s working conditions.

Here, even if the Complaint alleges that Defendants took official employment actions to convey a demeaning message related to Plaintiff’s characteristics (e.g., removing her from Pier B project to ensure that a female would not receive credit for overseeing such a high-profile project (Compl., 32)), there are no facts from which the Court can infer that such message was so severe or pervasive so as to alter working conditions as in Miller.

In addition, the only specific adverse employment action Plaintiff accuses Lewis of, is withholding and lying about producing Plaintiff’s 2016 through 2018 performance evaluations. (Compl., 23.) However, the Complaint is devoid of any allegations that that Lewis did so to convey a demeaning message regarding females or people of Plaintiff’s national origin.

Based on the foregoing, Defendant’s demurrer to the first cause of action is SUSTAINED, with leave to amend.

D. Third Cause of Action for National Origin Discrimination

1. The Parties’ Arguments

Defendants contend that the third cause of action fails to allege facts sufficient to state a cause of action because (1) Plaintiff claims several alleged adverse employment actions, but (2) fails to allege facts that show any nexus between those actions and her national origin.

In opposition, Plaintiff contends that a demurrer is not a proper vehicle for challenging whether a nexus exists between her national origin and her alleged adverse employment actions. It is enough that she alleges that she was singled out because she was Jewish/Persian. However, if necessary, Plaintiff can amend the Complaint to reference another Middle Eastern employee who like Plaintiff was excluded from an opportunity, in close proximity to Plaintiff being denied the Senior Civil Engineer position.

In reply, citing Susman v. City of Los Angeles (1969) 269 Cal.App.2d 803 (“Susman”), Defendants argue that every fact essential to the existence of a statutory liability against a public entity must be pleaded with particularity. Here, the Complaint is devoid of any facts connecting the employment actions with discriminatory animus based on national origin. Plaintiff only alleges those actions were taken and that she happens to be Jewish of Persian descent.

2. Discussion

“Under the FEHA, it is unlawful for an employer, because of a protected classification, to discriminate against an employee ‘in compensation or in terms, conditions, or privileges of employment.’ ([Gov. Code] 12940, subd. (a).)” (Ortiz v. Dameron Hospital Assn. (2019) 37 Cal.App.5th 568, 577.)

“In general, there are two types of illegal employment discrimination under FEHA: disparate treatment and disparate impact.” (Jones v. Department of Corrections & Rehabilitation (2007) 152 Cal.App.4th 1367, 1379.)

“‘Disparate treatment’ is intentional discrimination against one or more persons on prohibited grounds. [Citations.] Prohibited discrimination may also be found on a theory of ‘disparate impact,’ i.e., that regardless of motive, a facially neutral employer practice or policy, bearing no manifest relationship to job requirements, in fact had a disproportionate adverse effect on members of the protected class.’” (Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 354, fn. 20 (“Guz”) [italics removed].)

Here, the Complaint alleges that Plaintiff suffered disparate treatment.

“To prevail under the disparate treatment theory, an employee must show that the employer harbored a discriminatory intent.” (Mixon v. Fair Employment & Housing Com. (1987) 192 Cal.App.3d 1306, 1317.) However, “[i]n most cases, the complainant will be unable to produce direct evidence of the employer's intent.” (Ibid.) Therefore, “California has adopted the three-stage burden-shifting test established by the United States Supreme Court for trying claims of discrimination, … based on a theory of disparate treatment.” (Guz v. Bechtel Nat. Inc., supra, 24 Cal.4th at p. 354.) “This so-called McDonnell Douglas test reflects the principle that direct evidence of intentional discrimination is rare, and that such claims must usually be proved circumstantially.” (Ibid.) The following are the three steps of the McDonnell Douglas test: “1) The complainant must establish a prima facie case of discrimination; 2) The employer must offer a legitimate reason for his actions; [and] 3) The complainant must prove that this reason was a pretext to mask an illegal motive.” (Mixon v. Fair Employment & Housing Com., supra, 192 Cal.App.3d at p. 1317.)

“The plaintiff, … must plead a prima facie case [of discrimination] in order to survive demurrer.” (Caldwell v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 203, fn. 7.) “Accordingly, the complaint must include the prima facie elements of employment discrimination specified in” the McDonnell Douglas test. (Ibid.)

“To state a prima facie case for discrimination in violation of the FEHA, a plaintiff must establish that (1) she was a member of a protected class, (2) she was performing competently in the position she held, (3) she suffered an adverse employment action, and (4) some other circumstance suggests discriminatory motive.” (Ortiz v. Dameron Hospital Assn., supra, 37 Cal.App.5th at p. 577.)

Here, Defendants contend that the Complaint fails to allege circumstances suggesting discriminatory motive based on Plaintiff’s national origin (Persian Jewish) with regards to the adverse employment actions Plaintiff alleges she suffered.

The Court agrees. In her national origin discrimination claim, Plaintiff incorporates all of her previous paragraphs (including allegations of adverse employment actions such as forced transfer, bogus investigations, and deliberate rewriting of her performance evaluations (Compl., 27)) and then alleges the following: “these actions were taken to impede [Plaintiff’s] promotional and reclassification opportunities, while favoring non-Jewish/Persian employees withs same or lesser qualifications and experience than [Plaintiff]” (Compl., 55.) However, the Complaint does not allege facts sufficient to show direct or circumstantial evidence of discrimination based on Plaintiff’s national origin. In other words, there are no facts that would allow the Court to infer that Defendants engaged in any of those adverse employment actions because Plaintiff was Jewish from a Persian descent.

Based on the foregoing, Defendant’s demurrer to the third cause of action for national origin discrimination is SUSTAINED, with leave to amend.

E. Sixth Cause of Action for Privacy Violations

1. The Parties’ Arguments

Defendants contend that the sixth cause of action for privacy violations fails to state facts sufficient to constitute a cause of action because Plaintiff alleges that Defendants the City and Erickson violated the Health Insurance Portability and Accountability Act (“HIPAA”) when Erickson allegedly disclosed at a work meeting that Plaintiff was in a coma, but the City and Erickson are not covered entities under HIPAA. The Court should sustain the demurrer to this cause of action without leave to amend because no amendment can cure the deficit because there can be no HIPAA claims brought against the City or Erickson. In addition, Plaintiff cannot allege that she meant to allege a public disclosure of private facts because she only alleges that Erickson disclosed that she was in the hospital in a meeting with Plaintiff’s peers instead of a large group of people.

In opposition, Plaintiff contends that the issue is not whether the City is obligated to honor HIPAA but whether Erickson, as Plaintiff’s direct supervisor, had a right to divulge Plaintiff’s confidential medical information, including that she was in a coma, to her co-workers. Plaintiff then cites Long Beach City Employees Association vs. City of Long Beach (1986) 41 Cal. 3d 937 (“Long Beach”) without explaining its significance other than to ask the Court to “see” the case “for an excellent discussion of constitution right to privacy and infringements that occur.” (Opposition, p. 8:20-23.)

In reply, Defendants emphasize that the Complaint explicitly alleges that Defendants violated HIPAA. However, Plaintiff has no claim under HIPAA. In addition, the Complaint does not articulate the elements of any other privacy violation. Since Plaintiff has failed to state how she can amend the pleading to remedy the deficiency, leave to amend should be denied. As to Plaintiff’s cite to Long Beach, while the case recognized a right to privacy, it limited its question to polygraph examinations conducted during the investigation of a crime.

2. Discussion

In her sixth cause of action for privacy violations by Erickson and the City, the FAC alleges the following. “Plaintiff was hospitalized in September 2020. [Plaintiff] was informed and believes that ERICKSON took it upon himself to broadcast at a Pier B meeting to [Plaintiff’s] peers that [Plaintiff] had been in a coma while hospitalized, without procuring [Plaintiff’s] consent to such disclosures. By so doing, ERICKSON ignored HIPAA requirements that protected disclosure of ZIA’s medical condition.” (Compl., 88.) Having satisfied pre-suit requirements under the Government Tort Claims Act, “Plaintiff does hereby bring an action against Defendant CITY and Erickson, for having publicly disclosed confidential matters relative to [Plaintiff’s] hospitalization, despite HIPAA requirements and CITY policies prohibiting such disclosures in the first place.” (Compl., 89-90.) “In light hereof, Plaintiff alleges that Defendants CITY and ERICKSON are responsible for violating [Plaintiff’s] right to privacy in these and other regards.” (Compl., 91.)

It is clear from the allegations above, that Plaintiff’s cause of action for privacy violations is based on (1) the City and Erickson’s alleged violation of HIPAA and (2) the defendants’ publicly disclosure of Plaintiff’s hospitalization.

“In enacting HIPAA, Congress expressed its concern for protecting the integrity and confidentiality of personal medical records, and for preventing the unauthorized use or disclosure of such records.” (Bugarin v. Chartone, Inc. (2006) 135 Cal.App.4th 1558, 1561.)

However, as Defendants point out and Plaintiff does not dispute, HIPAA applies to “‘Covered entit[ies] mean[ing]: [ ] (1) A health plan. [ ] (2) A health care clearinghouse. [ ] (3) A health care provider who transmits any health information in electronic form in connection with a transaction covered by this subchapter.’ (45 C.F.R. 160.103 (2005).)” (Bugarin v. Chartone, Inc., supra, 135 Cal.App.4th at p. 1562.)

Since neither the City nor Erickson are a health plan, health care clearinghouse, or health care provider, Plaintiff cannot bring a HIPAA cause of action against them.

On the other hand, “[t]he elements of a claim of invasion of privacy based on the public disclosure of private facts are as follows: ‘“(1) public disclosure (2) of a private fact (3) which would be offensive and objectionable to the reasonable person and (4) which is not of legitimate public concern.” [Citations.]’ [Citation.]” (Catsouras v. Department of California Highway Patrol (2010) 181 Cal.App.4th 856, 868.)

“‘The disclosure of the private facts must be a public disclosure, and not a private one; there must be, in other words, publicity.’ [Citation.]” (Kinsey v. Macur (1980) 107 Cal.App.3d 265, 270 (“Kinsey”).) “Thus, except in cases involving physical intrusion, the tort must be accompanied by publicity in the sense of communication to the public in general or to a large number of persons as distinguished from one individual or a few.” (Ibid.) “‘The gravamen of the tort is unwarranted publication of intimate details of plaintiff’s private life. [Citations.] The interest to be protected is individual freedom from the wrongful publicizing of private affairs and activities which are outside the realm of legitimate public concern. [Citations.]’ [Citation.]” (Id. at pp. 270–271.)

Defendants contend that Plaintiff’s allegation that Erickson’s statement at a work meeting was not a public disclosure.

However, disclosure of private facts at a work meeting may constitute public disclosure.

Under Judicial Council of California Civil jury instructions for public disclosure of private facts claims, in deciding whether a defendant publicized information, the jury is asked to “determine whether it was made public either by communicating it to the public at large or to so many people that the information was substantially certain to become public knowledge.” (CACI No. 1801, Public Disclosure of Private Facts, p. 1106.)

In addition, to date (as was the case when Kinsey was decided in 1980), “no California case has defined the number of people necessary to justify a finding of publicity ….” (Kinsey, supra, 107 Cal.App.3d at p. 271.) However, the Court of Appeal found that unlike in other cases where courts found that the disclosure was not public, in Kinsey, “recipients of [appellant’s] letters comprised a diverse group of people living in several states and totally unconnected either socially or professionally.” (Id. at p. 272 [emphasis added]; Cabanas v. Gloodt Associates (E.D. Cal. 1996) 942 F.Supp. 1295, 1310, aff'd sub nom. Cabanas v. Gloodt Associates, Inc. (9th Cir. 1998) 141 F.3d 1174 [“In Kinsey, defendant wanted to ‘tell the whole world what a bastard [plaintiff] is.’ [Citation.] The letters were sent to Kinsey, his wife, their former spouses, their parents, their neighbors, their parents’ neighbors, members of Bill Kinsey’s dissertation committee, other faculty, and the President of Stanford University. [Citation.] The mere number of letters alone was not decisive—equally important was that the recipients of the damaging letters ‘comprised a diverse group of people living in several states and totally unconnected either socially or professionally.’ [Citation]”].)

Here, it is not clear who was present at the Pier B meeting or whether the information was certain to become public knowledge, especially given the Complaint alleges the following. The disclosure took place at a Pier B meeting. (Compl., 88.). Pier B was one of the largest projects in the Harbor Department. (Compl., 17.) It was also a high-profile project. (Compl., 3, 32.) Plaintiff led the Pier B procurement strategy and negotiations with Hill, International, Inc. (a non-party) in reducing the initial value of their contract from $46M to 33M for the term ending in 2032, a savings of $13M and subsequently negotiating a contract in the amount of $17.5M for the term of 5 years. (Compl., 13.) Therefore, the Court cannot rule, as Defendants imply, that disclosure of private information at a work meeting can never constitute public disclosure.

Defendants also contend that Plaintiff cannot establish that her coma was a private fact. However, it is enough at the pleading stage for Plaintiff to allege that the City and Erickson publicly disclosed confidential matters relative to Plaintiff’s hospitalization. (Compl., 90.) As to whether Plaintiff can establish that her coma was in fact a private matter is beyond the scope on demurrer.

Based on the foregoing, Defendant’s demur to the sixth cause of action for privacy violations is OVERRULED.

3. Conclusion

The Court rules on Defendants’ demurrer to the Complaint as follows.

The demurrer is SUSTAINED as to the first cause of action for harassment and third cause of action for national origin discrimination, with 20 days leave to amend.

The demurrer is OVERRULED as to the sixth cause of action for privacy violations.

MOTION TO STRIKE

Defendants move to strike the following portions of the Complaint on the ground that they are irrelevant and time-barred:

1. Paragraphs 8 through 11 of the Complaint in their entirety;

2. The first cause of action against Defendant Lewis;

3. Paragraphs 31 through 40 of the Complaint in their entirety;

4. Paragraphs 53 through 65 of the Complaint in their entirety; and

5. Paragraphs 87 through 96 of the Complaint in their entirety.

Plaintiff opposes the motion.

1. Meet and Confer

Before filing a motion to strike, the moving party must meet and confer in person or by telephone with the party who filed the pleading to attempt to reach an agreement that would resolve the objections to the pleading. (Civ. Code Proc., 435.5, subd. (a).)

Counsel’s declaration satisfies the meet and confer requirement. (Motion to Strike, Jenkins Decl. 3-10; Exs. A and B.)

2. Discussion

(a) Paragraphs 8 through 11

Defendants contend that Paragraphs 8 through 11 of the Complaint should be stricken because they contain allegations that are time barred by the FEHA’s one-year statute of limitations (which they contend ended on January 1, 2019), and Labor Code section 1102.5’s three-year statute of limitations (which they contend ended on July 2, 2018).

In her opposition, Plaintiff argues that a tolling exception, the continuing violation doctrine, should be applied here such that any events that occurred prior to December 2019, can be revived.

In their reply, Defendants argue (among other things) that the continuing violations doctrine does not apply because in order for the doctrine to apply, the acts that occurred prior to the limitations (“pre-limitations”) period and the ones that occurred within the limitations (“within-limitations”) period, must be sufficiently similar in kind. Here, however, two sets of claims are wholly different because the pre-limitations period allegations consist of the Human Resources department vetting employment applicant pools, Plaintiff’s supervision of employees, and professional coaching (Compl., 8-11), while the within-limitations period allegations consist of denied promotions and being removed from projects (Compl., 15, 20-22.)

Former Government Code section 12960 required “‘litigants seeking relief under the FEHA to file an administrative complaint with the [Department of Fair Employment and Housing (“DFEH”)] within one year “from the date upon which the alleged unlawful practice … occurred.”’ [Citations.]” (Guzman v. NBA Automotive, Inc. (2021) 68 Cal.App.5th 1109, 1116.)

Plaintiff filed her DFEH complaint on December 16, 2020. (Compl., 30.) Therefore, under the former Government Code section 12960, any claims that occurred before December 16, 2019, would have been barred by the statute of limitations unless a tolling exception applies.

“Effective January 1, 2020,” however, “the Legislature amended section 12960 to ‘enlarge[ ] the time for filing a [DFEH] claim to three years from the date of the challenged conduct.’ [Citations.]” (Id. at fn. 7; Gov. Code, 12960, subd. (e) [“A complaint alleging any other violation of Article 1 (commencing with Section 12940) of Chapter 6 shall not be filed after the expiration of three years from the date upon which the unlawful practice or refusal to cooperate occurred”].) That three-year statute of limitations is not retroactive. (Pollock v. Tri-Modal Distribution Services, Inc. (2021) 11 Cal.5th 918, 931.)

Defendants contend, but cite no law for the proposition, that even though Plaintiff filed this action in 2021 and the DFEH complaint in 2020, only claims that arose after January 1, 2020 are subject to the three-year statute of limitations.

It would appear that under the three-year statute of limitations, any claims that occurred before December 16, 2017, three years before Plaintiff filed her DFEH complaint, would be barred.

In any event, to sustain a demurrer based on the statute of limitations, it must appear on the face of the complaint that the statute of limitations is applicable to bar the cause of action. (See Union Carbide Corp. v. Superior Court (1984) 36 Cal.3d 15, 25-26 (“Union Carbide”).) In Union Carbide, the California Supreme Court found that there was nothing appearing on the face of the complaint that suggested that the statute of limitations barred the action because the complaint alleged that the offenses began at a time unknown and continued up to the date of the filing of the complaint. (Id. at p. 25.) In so holding, the Court reasoned, “[a]t most, plaintiffs will be limited to recovering damages for actions occurring within the four years preceding the complaint.” (Ibid.)

Here, it is does not appear from the face of the Complaint that the statute of limitations bars Plaintiff’s allegations in Paragraphs 8 through 11. First, Paragraph 8 does not allege any specific time period. Secondly, Paragraphs 9 through 11 allege that Defendants assigned Plaintiff to a “coaching” session with an industrial psychologist and afterwards sought to undermine Plaintiff because she kept complaining about Defendants’ hiring and firing practices. However, those Paragraphs do not allege when Defendants stopped the alleged wrongful conduct. If anything, the rest of the Complaint goes on to allege how Defendants, Lewis in particular, have continued to undermine Plaintiff by, for example, falsely representing to Executive Director Mario Cordero that Plaintiff’s grievances had not only been responded to but also satisfactorily resolved. (Compl., 23, 68.)

Accordingly, the Court denies the Defendants’ request to strike Paragraphs 8 through 11 from the Complaint.

(b) First Cause of Action Against Defendant Lewis

Defendants move to strike the first cause of action for unlawful harassment and abusive work conditions against Lewis.

The Court denies Defendants’ request because the Court has sustained the Defendants’ demurrer to that cause of action, with leave to amend, even as to Lewis.

(c) Paragraphs 31 through 40 (First Cause of Action), 53 through 65 (Third Cause of Action), and 87 through 96 (Sixth Cause of Action)

Defendants contend that the first, third, and sixth causes of action should be stricken from the Complaint because they are subject to dismissal without leave to amend for the reasons raised in their demurrer.

The Court denies Defendants’ request in light of the Court (1) sustaining the Defendants’ demurrer to first and third causes of action, with leave to amend, and (2) overruling the demurrer as to the sixth cause of action.

CONCLUSION

Defendants’ demurrer is SUSTAINED and OVERRULED in part. The demurrer is SUSTAINED as to first cause of action for unlawful harassment and abusive work conditions and third cause of action for national origin discrimination, with 30 days leave to amend. The demurrer is OVERRULED as to the sixth cause of action for privacy violations.

Defendants’ motion to strike is DENIED.

Plaintiff is ordered to file and serve her first amended complaint within 20 days of this ruling.

Defendants to give notice.