Case Number: BC703966 Hearing Date: August 22, 2018 Dept: 51

Superior Court of California

County of Los Angeles

Department 51

TANIA VASQUEZ LINARES,

Plaintiff,

v.

AMP PLUS, INC., et al.,

Defendants.

Case No.: BC703966

Hearing Date: 8/22/18

Trial Date: None Set

[TENTATIVE] RULING RE:

Demurrer to Complaint

Background

Plaintiff Tania Vasquez Linares sues Amp Plus, Inc.; Elco Lighting, Inc.; and Carlos Hernandez for damages, declaratory relief, and injunctive relief based on allegations that Hernandez sexually harassed plaintiff and terminated when she complained of Hernandez’s behavior.

As plaintiff alleges, she was hired by Amp Plus, Inc. and Elco Lighting, Inc. (collectively, the Entity Defendants) in April 2016 with Hernandez as her supervisor. Complaint ¶¶ 10, 11. Beginning around July 2016, Hernandez began sexually harassing plaintiff, complimenting her and giving pretextual reasons to be alone with her. Id. at ¶ 21. By November 2016, the harassment escalated such that Hernandez would (among other things) show plaintiff pornographic videos and ask her if she wanted to have a threesome. Id. at ¶ 22. After plaintiff repeatedly rebuffed Hernandez’s advances, he demanded that she lift very heavy boxes and threatened or admonished her co-workers if they attempted to help her in any way. Id. at ¶ 25. When plaintiff reported the sexual harassment to the Entity Defendants, they said they would investigate; instead, in May 2017, they terminated her, stating that there was not enough work. Id. at ¶ 26.

On April 26, 2018, plaintiff filed a complaint for:

discrimination;

harassment;

retaliation;

failure to prevent discrimination, harassment and retaliation;

hostile work environment;

wrongful termination in violation of public policy;

declaratory judgment;

violation of the Ralph Civil Rights Act (Civil Code section 51.7);

violation of the Tom Bane Civil Rights Act (Civil Code section 52.1);

intentional infliction of emotional distress; and

negligent supervision and retention.

On July 20, 2018, the Entity Defendants filed this opposed demurrer. The Entity Defendants’ counsel filed a compliant meet and confer declaration. CCP § 430.41; Boone III Decl. ¶¶ 4-7. The Court considered the moving, opposition, and reply papers and rules as follows.

Request for Judicial Notice

The Entity Defendants’ request for judicial notice of the docket for plaintiff’s bankruptcy case, filed on May 16, 2018, is GRANTED. Evid. Code § 452(d).

Standard

A demurrer tests the sufficiency of the pleading at issue as a matter of law. City of Chula Vista v. County of San Diego (1994) 23 Cal.App.4th 1713, 1719. A demurrer may be sustained where the complaint fails to state facts sufficient to constitute a cause of action. CCP § 430.10(e). The ultimate facts alleged in the complaint must be deemed true, as well as all facts that may be implied or inferred from those expressly alleged. Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403; see also Shields v. County of San Diego (1984) 155 Cal.App.3d 103, 133 (“On demurrer, pleadings are read liberally and allegations contained therein are assumed to be true.”) However, the Court does not assume the truth of allegations expressing conclusions of law or allegations contradicted by the exhibits to the complaint or by matters of which judicial notice may be taken. Vance v. Villa Park Mobilehome Estates (1995) 36 Cal.App.4th 698, 709.

If the demurrer is sustained, plaintiff “has the burden of proving the possibility of cure by amendment.” Czajkowski v. Haskell & White, LLP (2012) 208 Cal.App.4th 166, 173 (citing Grinzi v. San Diego Hospice Corp. (2004) 120 Cal.App.4th 72, 78-79.) Leave to amend must be allowed where there is a reasonable possibility of successfully stating a cause of action. Schulz v. Neovi Data Corp. (2007) 152 Cal.App.4th 86, 92.

Analysis

Lack of Standing

The Entity Defendants argue that plaintiff lack standing to pursue any of her causes of action because only the bankruptcy trustee has standing to prosecute.

As the Court of Appeal has explained:

“In the context of bankruptcy proceedings, it is well understood that ‘a trustee, as the representative of the bankruptcy estate, is the real party in interest, and is the only party with standing to prosecute causes of action belonging to the estate once the bankruptcy petition has been filed.’ [Citation.] The commencement of Chapter 7 bankruptcy extinguishes a debtor’s legal rights and interests in any pending litigation, and transfers those rights to the trustee, acting on behalf of the bankruptcy estate. See 11 U.S.C. § 541(a)(1) (indicating that a bankruptcy estate includes ‘all legal or equitable interests of the debtor in property’); id. § 323 (establishing the bankruptcy trustee as the ‘representative’ of the estate with the ‘capacity to sue and be sued’ on its behalf). Thus, ‘generally speaking, a pre-petition cause of action is the property of the Chapter 7 bankruptcy estate, and only the trustee in bankruptcy has standing to pursue it.’ [Citations.]” [Citation.]

M & M Foods, Inc. v. Pacific American Fish Co., Inc. (2011) 196 Cal.App.4th 554, 562 (brackets omitted.)

The above, however, does not require the Court to sustain the demurrer, as the Entity Defendants argue. Although commencement of bankruptcy transfers a debtor’s rights in pending litigation to the trustee, “until a trustee in bankruptcy intervenes and substitutes himself in, he is not the real party in interest. [Citation.] Code of Civil Procedure section 385 [now section 368.5] expressly authorizes the plaintiff to remain the real party in interest even after the cause of action has been transferred to the estate by operation of law, until such time as the trustee seeks, and is allowed, to substitute in by the court.” Kaley v. Catalina Yachts (1986) 187 Cal.App.3d 1187, 1195.

Accordingly, the demurrer is OVERRULED.

Seventh COA (Declaratory Judgment)

The Entity Defendants argue that this cause of action fails because plaintiff was terminated and does not allege any continuing relationship with the Entity Defendants. The Entity Defendants also argue that this cause of action improperly requests injunctive relief.

To the contrary, as our Supreme Court has explained:

[P]roof that an adverse employment decision was substantially motivated by discrimination may warrant a judicial declaration of employer wrongdoing. Declaratory relief, where appropriate, may serve to reaffirm the plaintiff’s equal standing among her coworkers and community, and to condemn discriminatory employment policies or practices. (See Code Civ. Proc, § 1060 [a court may make a binding declaration of contested rights and duties].) [¶] [Moreover,] upon a finding of unlawful discrimination, a court may grant injunctive relief where appropriate to stop discriminatory practices. (See Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 131, 87 Cal.Rptr.2d 132, 980 P.2d 846 [courts may grant injunctive relief under the FEHA to prevent discriminatory conduct from recurring]; cf. EEOC v. Ilona of Hungary (7th Cir.1997) 108 F.3d 1569, 1579 [finding unlawful discrimination on the basis of religion under Title VII and upholding injunctive relief where the individuals who were found to have discriminated remain the defendant’s primary decision-makers’].)

Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 234 (involving a claim for wrongful termination in violation of the FEHA’s proscription against pregnancy discrimination).

Therefore, despite plaintiff’s termination, she may pursue declaratory and injunctive relief.

The Entity Defendants argue in reply that Harris allows declaratory relief only where the unavailability of damages for discriminatory conduct would be an “empty gesture.” REP 3:20-27 (citing Harris, supra, 56 Cal.4th at 234.) Harris is not so limited, however; it notes that declaratory relief “may serve to reaffirm the plaintiff’s equal standing among her coworkers and community, and to condemn discriminatory employment policies or practices.” Harris, supra, 56 Cal.4th at 234. Accordingly, Harris allows plaintiff to seek declaratory relief.

The demurrer is OVERRULED.

Eighth COA (Ralph Civil Rights Act) and Ninth COA (Bane Civil Rights Act)

The Entity Defendants argue that these causes of action fail because plaintiff fails to plead facts that Hernandez committed a violent act or threatened to commit a violent act against plaintiff.

Both Civil Code sections 51.7 (the Ralph Civil Rights Act) and 52.1 (the Bane Civil Rights Act) require violence or a threat of violence. Ramirez v. Wong (2010) 188 Cal.App.4th 1480 (“Civil Code section 51.7 . . . ‘“has nothing to do with public accommodations or business establishments.”’ [Citation.] It states that all persons have ‘the right to be free from any violence, or intimidation by threat of violence, committed against their persons or property because of political affiliation, or on account of any characteristic listed or defined’ in specified subdivisions of the Unruh Act—including sex and marital status. (§ 51.7, subd. (a).) This right may be enforced in a private action for damages [citation], and the statute has been described (together with Civil Code section 52.1) as ‘providing a civil remedy for hate crimes.’ [Citation.] [¶] . . . [¶] The statute requires violence or a threat of violence; it is, after all, a “hate crimes” statute. [Citation.]” (brackets and footnote omitted); Cabesuela v. Browning-Ferris Industries of California, Inc. (1998) 68 Cal.App.4th 101, 111 (“[I]t is clear that to state a cause of action under section 52.1 there must first be violence or intimidation by threat of violence.”)

Although paragraph 118 of the complaint does allege that “[d]efendants repeatedly interfered with, or attempted to interfere with [p]laintiff’s peaceable exercise and enjoyment of said rights by threats, intimidation, or coercion,” no facts are alleged to suggest that Hernandez committed (or threatened to commit) any violent act as required for these causes of action. At most, the complaint alleges that Hernandez “demanded that [plaintiff] lift very heavy boxes and threatened or admonished her co-workers if they attempted to help [p]laintiff in any way.” Complaint ¶ 25. These causes of action accordingly fail.

Although plaintiff requests leave to amend, there does not appear to be a reasonable possibility of stating these causes of action.

The demurrer is SUSTAINED WITHOUT LEAVE TO AMEND.

Conclusion

The demurrer is SUSTAINED WITHOUT LEAVE TO AMEND as to the eighth and ninth causes of action and otherwise OVERRULED. The Entity Defendants to give notice.

Dated:

__________________________________________

Dennis J. Landin

Superior Court Judge