2013-00154661-CU-OE

Richard Castillo vs. State of Ca., California Military Dept.

Nature of Proceeding: Hearing on Demurrer

Filed By: Besmer, Matthew T.

This matter is continued to today for oral argument. A copy of the previous
tentative ruling is listed below.

Defendant California Military Department’s Demurrer to the Complaint is sustained
without leave to amend for failure to state facts sufficient to constitute a cause of
action.

Defendant’s Requests for Judicial Notice are granted.

Plaintiffs, former state active duty service members who are 60 years of age or older,
allege age discrimination under FEHA and violation of the California Constitution,
article 1, section 7 (due process) arising out of defendant’s decision not to retain them
on temporary state active duty orders. An amendment to the California Military and
Veterans Code section 142, effective January 1, 2013, provides that service members
may serve on state active duty only until age 60, and that thereafter a service member
may continue serving on temporary orders which may be renewed annually until
mandatory retirement at age 64. In January 2013, the commanding general of the
California militia decided not to retain plaintiffs on temporary state active duty orders
and they have been separated from service.

Defendants contend that Plaintiffs are barred from suing the military under the Feres
doctrine, that FEHA does not apply to service members, that Military and Veterans
Code section 130 (non-discrimination policy) does not provide for any remedies, and
that Military Code section 142(b) authorizes retention decisions to be made based on
age. The Court agrees on all points. 1st cause of action FEHA Age Discrimination, 2nd cause of action FEHA Failure
to Prevent Discrimination: Sustained without leave to amend for failure to state facts
sufficient to constitute a cause of action. Because plaintiffs are service members, they
are barred from suing the military. (Frey v. California (9th Cir. 1993) 982 F.2d 399
403. While serving on state active duty, a non-federally recognized service member
remains “subject to nearly all of the same discipline and working conditions as
members of the federally recognized [National] Guard. (Id. at 403-404; see also Mil. &
Vet. Code, § 389 et. seq. and § 564 [for privileges enjoyed by non-federally recognized
state active duty services members]; and see Mil. & Vet. Code § 450 et seq. and §§
550, 551, and 560 [for discipline of non-federally recognized state active duty service
members, including jurisdiction to subject them to court-martial for criminal
misconduct].)

The Feres doctrine is a judicially created doctrine that bars service members from
suing the military for injuries that “arise out of or are in the course of activity incident to
service.” (Feres v. U.S. (1950) 340 U.S. 135, 146.) A ‘”central purpose of the Feres
doctrine is not only to avoid liability, but also to preclude a trial on the merits because
the judicial inquiry itself, rather than just a merits judgment, causes the disruption of
military affairs the Feres doctrine is designed to prevent.'” (Estes v. Monroe (2004) 120
Cal. App. 4th 1347, 1362 (quoting Lutz v. Secretary of the Air Force (9th Cir.1991) 944
F.2d 1477, 1481).)

Discharge decisions by the National Guard “are nonjusticiable because judicial review
‘would seriously impede[] the military in performance of its vital duties.'” Mier v. Owens
(9th Cir. 1995) 57 F.3d 747, 749, 750 (quoting Christoffersen v. Washington State Air
National Guard (9th Cir. 1988) 855 F.2d 1437, 1444. Retention decisions involve a
high degree of military discretion and expertise, and a trial court cannot “reach a
judgment without exposing itself to all of the pros and cons of the non retention
decision.” Id.)

The demurrer is sustained on the additional ground that FEHA does not provide a
remedy to state active duty service members. Plaintiff relies on the Military and
Veterans Code section 130, contending that it extends FEHA remedies to service
members. However this section provides only that the policy of FEHA’s anti-
discrimination is adopted. That section does not provide a remedy. Section 130
further provides that “This policy shall be put into effect in the militia by rules and
regulations to be issued by the Governor with due regard to the powers of the federal
government that are, or may be, exercised over all the militia of the state with regard to
positions requiring federal recognition.” Thus, section 130 cannot be interpreted as
providing FEHA remedies to plaintiffs.

The 3d District Appellate Court in Estes v. Monroe (2004) 120 Cal. App. 4th 1347, has
already held that FEHA remedies do not apply to state active duty service members. (
Estes, supra, 120 Cal.App.4th at p. 1365.) Estes sued the California Military
Department in tort alleging that he was wrongfully terminated from state active duty
due to his disability. (Id. at p. 1351.) The Court of Appeal stated that although plaintiff
did not sue under FEHA, “the viability of plaintiffs tort claim is tethered to the meaning
of the FEHA.” (Id. at p. 1355.) The court, therefore, analyzed whether FEHA applied to
service members. (Id. at pp. 1355-1360.) The Estes court ultimately concluded that
“FEHA does not provide remedies to National Guard members on state active duty
when the challenged personnel action is incident to military service.” (Estes, supra,
120 Cal.App.4th at p 1365.) Both Estes (3rd DCA) and Frey v California (9th Cir. 1993) 982 F.2d 399 involved non-federally recognized militia members, as in this case.
However, both cases treated non-federally recognized militia members the same was
as federally recognized National Guard members when analyzing whether to apply
civilian laws to the military. Therefore, the Court rejects plaintiffs’ argument that Feres
does not apply to them and that Estes and Frey were erroneously decided.

In Estes, the court stated that “the Legislature will have to explicitly extend a FEHA
remedy to military personnel to overcome a judicial predisposition to defer to military
wisdom.” (Estes, supra, 120 Cal.App. 4th at p. 1360 [emphasis added].) Section 130
was amended by Assembly Bill 2900 after the Estes opinion was issued in 2004.
(Assem. Bill No. 2900 (2004 Reg. Sess.) § 17.) The amendments changed the militia’s
nondiscrimination policy from prohibiting discrimination on the bases “of race, national
origin or ancestry, or color,” to prohibiting discrimination on any bases protected by
Government Code section 12940 subdivision (a). (Id.) Assembly Bill 2900, however,
contained no language about extending FEHA remedies to service members.

Even if FEHA applied, FEHA contains its own exclusions. Section 12940 subdivision
(a)(5)(A) states that “[n]othing in this part prohibits an employer from refusing to
employ an individual because of his or her age if the law compels or provides for that
refusal.” (Gov. Code, § 12940 subd. (a)(5)(A)) Military and Veterans Code section
142 subdivision (b) provides the discretion not to retain service members on state
active duty who are age 60 or older. Section 142 subdivision (b) states that a service
member ordered to state active duty in accordance with this section who remains on
state active duty for six consecutive years shall be eligible for career state active duty
status and may remain on state active duty until the service member reaches 60 years
of age or is separated for cause. At 60 years of age, a service member may remain on
state active duty under temporary orders which may be renewed annually. (Mil. & Vet.
Code, § 142 subd. (b) (emphasis added).) Military and Veterans Code section 142
required Plaintiffs’ state active duty orders to expire at age 60. Thereafter, Plaintiffs did
not have the right to continue serving on state active duty under temporary orders
because of the explicit language of Section 142 subdivision (b). The Adjutant
General’s retention decisions did not violate Section 130 or the FEHA.

3rd cause of action Violation of California Constitution (Due Process): Sustained
without leave to amend for failure to state facts sufficient to constitute a cause of
action. This claim is barred by the Feres doctrine (See above). Moreover, there is no
damages remedy available to Plaintiffs for an alleged violation of article 1, section 7.
(See Katzberg v. Regents of University of California (2002) 29 Cal. 4th 300, 324.

4th cause of action Declaratory Relief: Sustained without leave to amend for failure to
state facts sufficient to constitute a cause of action. This claim is barred by the Feres
doctrine (See above) Moreover, Plaintiffs’ FEHA claims fail as a matter of law because
FEHA remedies do not apply to them, and there is no conflict among Military and
Veterans Code sections 130 and 142 and the FEHA.

Leave to amend a defective complaint should be denied where no liability exists under
substantive law. Rotolo v San Jose Sports & Entertainment, LLC (2007) 151
th
Cal.App.4 307, 321.

The minute order is effective immediately. No formal order pursuant to CRC Rule
3.1312 or further notice is required.