Case Number: BC535270    Hearing Date: August 04, 2014    Dept: 58

JUDGE ROLF M. TREU
DEPARTMENT 58
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Hearing Date: Monday, August 4, 2014
Calendar No: 2
Case Name: Okamura v. Los Angeles City College, et al.
Case No.: BC535270
Motion: Demurrer and Motion to Strike
Moving Party: Defendants Los Angeles Community College District, Allison Jones, and Daniel Marlos
Opposing Party: Plaintiff Linda Okamura
Notice: OK

Tentative Ruling: Demurrer is sustained as to the 9th COA with 15 days leave to amend, and is otherwise moot. Motion to strike is moot.
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Background –
On 2/4/14, Plaintiff Linda Okamura filed this action against Defendants Los Angeles City College (“LACC”), Los Angeles Community College District (“LACCD”), Allison Jones, Dan Marlos, and Jackie Ireland arising out of her employment. On 4/30/14, in response but prior to the hearing on a demurrer and motion to strike filed by Defendants, Plaintiff filed a First Amended Complaint which omits Ireland as a named defendant.

Plaintiff asserts causes of action for (1) FEHA race/national origin discrimination, (2) FEHA sex discrimination, (3) FEHA age discrimination, (4) FEHA disability discrimination, (5) FEHA failure to accommodate, (6) FEHA failure to engage in the interactive process, (7) FEHA retaliation, (8) CFRA retaliation, and (9) hostile work environment/harassment. The 1st through 8th COAs are asserted against LACC and LACCD; the 9th COA is asserted against all defendants.

Demurrer –
LACCD, Jones, and Marlos (“Defendants”) demur to the FAC.

1. Public Entity
LACCD argues that LACC is not a proper public entity (Gov’t Code § 811.2). In response, Plaintiff agrees to dismiss LACC without prejudice. Opp’n [Dem.] p. 2:14-20. Therefore, the demurrer is moot as to LACC.

2. Hostile Work Environment/Harassment
Defendants demur to the 9th COA on the ground that Plaintiff fails to allege sufficient facts to support severe or pervasive conduct by Jones and Marlos.

“Whether an environment is ‘hostile’ or ‘abusive’ can be determined only by looking at all the circumstances. These may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.” Hope v. California Youth Authority (2005) 134 Cal.App.4th 577, 588. However, “the law does not exhibit ‘zero tolerance’ for offensive words and conduct. Rather, the law requires the plaintiff to meet a threshold standard of severity or pervasiveness.” Etter v. Veriflo Corp. (1998) 67 Cal.App.4th 457, 467. “In determining what constitutes ‘sufficiently pervasive’ harassment, the courts have held that acts of harassment cannot be occasional, isolated, sporadic, or trivial, rather the plaintiff must show a concerted pattern of harassment of a repeated, routine or a generalized nature.” Hope, 134 Cal.App.4th at 588 (quoting Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 610).

Plaintiff is an Asian-American female of Japanese descent and is employed as a professor of photography. FAC ¶ 11. Plaintiff’s harassment claim is based on the following alleged facts. Plaintiff discovered a newspaper that said “JAP” on it, a department safe was programmed to “Pearl Harbor Day,” and Jones denied Plaintiff the use of the computer lab for office hours. Id. ¶ 129. Marlos gave unequal student access to facilities and equipment. Id. ¶ 130. Plaintiff was not treated equally with respect to her choice of classes, promotions, transfers, provision of equipment and software, participation on committees, and notice for meetings. Id. ¶¶ 131-132. Plaintiff was forced to work in an 80-year old chemistry building that was being demolished, which aggravated Plaintiff’s asthma. Id. ¶¶ 133-134. When Plaintiff’s mother became seriously ill, Plaintiff notified Jones and Marlos of the possibility of taking a leave of absence: Marlos accused Plaintiff of abandoning her class, Jones and Marlos sent emails with “false allegations,” and Plaintiff was reprimanded for allowing students to photograph alcohol. Id. ¶ 135. Plaintiff’s lecture hours and number of students were increased and Plaintiff was given a night class, students were encouraged not to take Plaintiff’s class, Plaintiff was given a negative evaluation, and Plaintiff was not permitted to take a leave of absence for her mother. Id. ¶ 136.

Much of Plaintiff’s factual allegations pertain to aspects of her duties and privileges relating to her position: these commonly necessary personnel management actions do not come within the meaning of harassment. Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 700; see also Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 63. The only non-personnel management actions related to Plaintiff’s discovery of a newspaper and the programming of a department safe. This is insufficient to allege facts supporting severe or pervasive conduct that unreasonably interfered with the work environment. See, e.g., Lyle v. Warner Bros. Television Production (2006) 38 Cal.4th 264, 283-84.

3. Ruling
The demurrer is sustained as to the 9th COA. Plaintiff requests leave to amend, which is granted because this is the first challenge to the pleadings addressed by the Court. In light of the Court’s ruling on the demurrer, the motion to strike the claim for punitive damages against Jones and Marlos is moot.