2012-00136720-CU-WT

Arthur Hernandez vs. Los Rios Community College District

Nature of Proceeding:  Hearing on Demurrer

Filed By: Sherman, Jason M.

Defendants Los Rios Community College District and Brian Bedford’s Demurrer to the
2nd amended complaint is ruled on as follows:

Defendants’ Requests for Judicial Notice submitted with the moving and reply papers
is granted.  However, the court does not accept the truth of the matters stated within
those documents.

Plaintiff’s Request for Judicial Notice is granted. However, the court does not accept
the truth of the matters stated within those documents.

Plaintiff alleges he was hired in 2008 as a part-time Adjunct Professor of Economics.
Plaintiff alleges that he was sexually harassed by a fellow professor Brian Bedford on
February 16, 2011 when Bedford, during a discussion about appropriate attire,
allegedly “reached into the front of plaintiff’s pants and commented that Plaintiff ‘was
dressed well.'”  Plaintiff did not report the alleged harassment to the employer because
he believed it would be looked upon unfavorably and because plaintiff was applying to
be a full-time, tenure tract economics professor.  Plaintiff was required to serve as a
faculty advisor to the Business Student Club and was led to believe that he would not
get the full time position unless he served in this position, for which he was not
compensated.

Plaintiff filed a pre-Complaint questionnaire with the DFEH before the one year
limitations period expired.  The actual FEHA Complaint was not filed until February 28,
2012, more than one year from the alleged harassment.  Claims with the DFEH must
be filed within one year from the date on which the alleged unlawful discrimination
occurred. Gov Code sections 12960, 12965, subd (b); Morgan v Regents of the Univ.
of Cal. (2000) 88 Cal.App.4th 52, 63.

Plaintiff states in his opposition that he can plead facts of equitable estoppel, based on
statements made to him by the DFEH employee that his Complaint would be
considered timely because the process was started before the one year period
expired.  (Declaration of Hernandez.)

1st cause of action Harassment FEHA:  Sustained with leave to amend for failure to              state facts sufficient to constitute a cause of action.  As to both defendants, the claim
appears to be time barred, absent allegations of equitable estoppel.  Plaintiff contends
he can cure the defects, therefore leave to amend is granted. The Demurrer is
sustained as to District on the additional ground that plaintiff has alleged no facts that
District knew or should have known of Bedford’s conduct.  Contrary to plaintiff’s
argument in his opposition, an employer is not vicariously liable for the harassment of
a co-worker.  Plaintiff must plead and later prove facts showing direct liability, that the
employer knew or should have known of Bedford’s conduct and failed to take
corrective action.  Government Code section 12940(j)(1). See Faragher v City of Boca
Raton (1998) 524 US 775, 789. Plaintiff contends he can cure the defects, therefore
leave to amend is granted.

The claim for Title VII harassment is barred by failure to exhaust administrative
remedies, as conceded by plaintiff.  Therefore,  the demurrer to this claim is sustained
without leave to amend.

2nd cause of action Violation of Labor Code 1194: Sustained with leave to amend
for failure to state facts sufficient to constitute a cause of action.  Although a private
right of action can be alleged under this code section, the claim must be based on an
underlying statute or regulation that requires a certain wage be paid.  Plaintiff has not
alleged any underlying wage provision that applies to him.  Los Rios contends that
plaintiff’s position as a community college professor is exempt from the labor code
minimum wage and overtime provisions.

Plaintiff may file and serve a 3rd amended complaint on or before January 10, 2014.
Response to be filed and served within 20 days of service of the amended complaint,
25 days if served by mail.

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

Item  11    2012-00136720-CU-WT

Arthur Hernandez vs. Los Rios Community College District

Nature of Proceeding:   Motion to Strike

Filed By:  Sherman, Jason M.

Defendants’ Motion to Strike punitive damages language is granted without leave to
amend as to Los Rios Community College District.  The District is immune from claims
of punitive damages.  Government Code section 818.

Defendants’ Motion to Strike punitive damages is granted, with leave to amend, as to
Defendant Brian Bedford.  The current allegations are not sufficient to support a claim
of punitive damages, which requires allegations of despicable conduct.

Plaintiff may file and serve a 3rd amended complaint on or before January 10, 2014.
Response to be filed and served within 20 days of service of the amended complaint,
25 days if served by mail.