Case Number: BC657332 Hearing Date: April 06, 2018 Dept: 53

farsheed farhang vs. city of los angeles et al.,

BC657332, APRIL 6, 2018

[tentative] order re: DEFENDANT city of los angeles’S: a. DEMURRER TO first amended COMPLAINT; b. motion to strike first amended complaint.

Defendant CITY OF LOS ANGELES’S demurrer is SUSTAINED WITH LEAVE TO AMEND. The Motion to Strike is OFF CALENDAR AS MOOT.

Background

Plaintiff Farsheed Farhang (“Plaintiff”) filed this employment action on April 10, 2017 against Defendants City of Los Angeles (the “City”) and City of Los Angeles Bureau of Sanitation (“Bureau”) (jointly, “Defendants”). The operative Second Amended Complaint (“SAC”) was filed on November 29, 2017.

The SAC asserts causes of action for (1) perceived and/or age harassment, discrimination, and retaliation in violation of Government Code §§12940 and 12941 et seq. (“FEHA”); (2) perceived and/or sex harassment, discrimination, and retaliation in violation of FEHA; (3) perceived and/or race harassment, discrimination, and retaliation in violation of FEHA.; (4) perceived and/or national origin harassment, discrimination, and retaliation in violation of FEHA; (5) retaliation for engaging in protected activity in violation of FEHA; and (6) declaratory relief.

The City now demurs to each cause of action for failure to state facts sufficient to constitute a cause of action pursuant to CCP § 430.10(e) and the entire SAC for uncertainty pursuant to CCP § 430.10(f).

demurrer

A. Legal Standard

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged.” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) For the purpose of testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded. (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 966-967.) A demurrer “does not admit contentions, deductions or conclusions of fact or law.” (Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713.)

B. Uncertainty

As an initial matter, the Court overrules the City’s demurrer on the basis of uncertainty. A demurrer for uncertainty may lie if the failure to label the parties and claims renders the complaint so confusing 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.). The City is clearly capable of responding to the claims asserted in the SAC.

C. First through Fifth Causes of Action – Harassment, Discrimination, and Retaliation Based on Age, Sex, Race, and/or National Origin

a. Discrimination

To plead a prima facie case of unlawful discrimination, a plaintiff must generally show that: “(1) he was a member of a protected class, (2) he was qualified for the position he sought or was performing competently in the position he held, (3) he suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some other circumstance suggests discriminatory motive.” (Dinslage v. City and County of San Francisco (2016) 5 Cal.App.5th 368, 378.)

Plaintiff alleges he is of the protected classes of: “over forty and currently sixty-three (63), male, Caucasian, and of Iranian national origin.” (SAC ¶ 7.) Plaintiff further alleges that he was denied numerous promotions and denied trainings despite “very good annual performance reviews for the last 35 years.” (SAC, ¶¶ 8-9, 11.) Instead, Plaintiff alleges on information and belief that “in almost every instance where Plaintiff was denied a promotion, a substantially younger and/or female and/or non-Caucasian and/or non-Iranian Engineer was given it.” (SAC, ¶ 11(l).) Plaintiff also alleges that he was denied adequate and proper training. (SAC, ¶ 11(n).)

The Court previously sustained the City’s demurrer to the discrimination causes of action for Plaintiff’s failure to plead circumstances suggesting discriminatory motive on the part of the City. The Court finds that the SAC fails to sufficiently address that defect. Although Plaintiff cites to Guz v. Bechtel National Inc. (2000) 24 Cal.4th 317, 367 in support of the proposition that it is “enough” that a younger person was treated more favorably such that an inference of intentional age discrimination can be made, the Court disagrees with this interpretation of the case. Rather, in Guz, which, importantly, was not decided on demurrer, the Supreme Court of California held that comparative-age evidence presented by the plaintiff in that case was insufficient to show bias. (Id. at pp. 367-368.) Here, Plaintiff has only alleged that promotions that he desired were given to other employees who he believed were younger, female, or non-Caucasian/non-Iranian. This is insufficient to suggest a discriminatory motive. Further, as discussed in the Court’s ruling on the demurrer to the FAC, remarks by Plaintiff’s supervisor regarding when Plaintiff was going to retire cannot be the basis for a discrimination cause of action because such cause of action would be time-barred. Therefore, the discrimination causes of action fail.

b. Harassment

Government Code § 12940(j)(1)¿prohibits harassment of an employee “because of 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 military and veteran status.” (Gov. Code § 12940(j)(1).) An employer may be strictly liable for harassment of an employee by an agent or supervisor. (State Dept. of Health Services v. Sup. Ct. (2003) 31 Cal.4th 1026, 1034.)

To constitute harassment, the claimed harassment must be sufficiently severe or pervasive so as to alter the conditions of employment. (Etter v. Veriflo Corp. (1998) 67 Cal.App.4th 457, 465.) Whether harassment exists based upon a hostile work environment is determined by considering all of the circumstances, which may include frequency, severity and job interference. (Miller v. Dept. of Corrections¿(2005) 36 Cal.4th 446, 462.)

As the Court has already discussed in sustaining the City’s demurrer to the FAC, in analyzing the sufficiency of evidence in support of a harassment claim, there is no basis for excluding evidence of biased personnel management actions so long as that evidence is relevant to prove the communication of a hostile message.” (Roby v. McKesson Corp. (2010) 47 Cal.4th 686, 708.) However, here, there are still no allegations of any widespread particular favoritism so severe and pervasive in Plaintiff’s workplace as to constitute harassment. In Roby, the allegations of harassment included daily rude comments to an employee, shunning the employee during weekly staff meetings, belittling the employee’s job, and reprimanding the employee in front of other co-workers. (Id. at p. 709.) The fact that Plaintiff was not chosen for promotion during his career and was denied training twice does not rise to the level of severe or pervasive harassment necessary to sustain a cause of action.

Additionally, the SAC does not include any new allegations that would make a harassment claim based on Poosti’s comments about Plaintiff retiring timely. There are still no facts pled that sufficiently relate these comments to other acts of alleged harassment so as to support the continuing violation doctrine. Accordingly, Plaintiff’s claims for harassment fail.

c. Retaliation

Finally, the FEHA prohibits “any employer, labor organization, employment agency, or person to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part [Government Code Section 12940] or because the person has filed a complaint, testified, or assisted in any proceeding under this part.” (Gov. Code § 12940(h).) “Employees may establish a prima facie case of unlawful retaliation by showing that (1) they engaged in activities protected by the FEHA, (2) their employers subsequently took adverse employment action against them, and (3) there was a causal connection between the protected activity and the adverse employment action. [Citation.]” (Miller v. Department of Corrections (2005) 36 Cal.4th 446, 472 (citation omitted).) “The causal link may be established by an inference derived from circumstantial evidence, such as the employer’s knowledge that the [employee] engaged in protected activities and the proximity in time between the protected action and allegedly retaliatory employment decision.” (Morgan v. Regents of Univ. of Cal. (2000) 88 Cal. App. 4th 52, 69.) (internal citations omitted.)

Here, the City argues that Plaintiff fails to plead his causes of action for retaliation because he fails to plead a causal link. The SAC alleges that Plaintiff engaged in protected activity by repeatedly filing complaints with DFEH from March 2015 to May 2017. (SAC, ¶ 11(u)-(y).) The SAC also alleges that Plaintiff complained about unlawful practices. (SAC, ¶ 11.) However, most of the alleged adverse employment actions pre-date the protected activity (the failures to promote from 2001 to 2014 and the denial of training in April 2014). Likewise, Plaintiff has still failed to plead that the decisionmakers who denied his promotions had knowledge of his protected activities. Plaintiff’s opposition focuses only on the temporal proximity between the protected activity and the adverse employment actions that happened after 2015. The Court finds that a causal link has not been sufficiently pled. (See McRae v. Department of Corrections and Rehabilitation (2006) 142 Cal.App.4th 377, 388 [“A plaintiff can satisfy his or her initial burden under the test by producing evidence of nothing more than the employer’s knowledge that the employee engaged in protected activities and the proximity in time between the protected action and the allegedly retaliatory employment decision.”].) Therefore, the demurrer to the retaliation causes of action are sustained.

D. Sixth Cause of Action – Declaratory Relief

“The fundamental basis of declaratory relief is the existence of an actual, present controversy over a proper subject.” (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 79.) The complaint will be found sufficient if it sets forth facts showing the existence of an actual controversy relating to the parties’ legal rights and duties, and requests the court to adjudge these rights and duties. (Ludgate Ins. Co. v. Lockheed Martin Corp. (2000) 82 Cal.App.4th 592, 606.) “Declaratory procedure operates prospectively, and not merely for the redress of past wrongs.” (Babb v. Superior Court (1971) 3 Cal.3d 841, 848) (internal brackets omitted.)

Here, the declaratory relief cause of action is wholly derivative of the FEHA violations that are not adequately alleged. Accordingly, no actual controversy exists, and the demurrer is sustained.

MOTION TO STRIKE

Because the Court has sustained the demurrer as to all of the causes of action in the SAC, the motion to strike is off calendar as moot.

CONCLUSION

For the foregoing reasons, the City’s demurrer to the SAC is sustained as to each cause of action, with leave to amend. Plaintiff is ordered to file any amended complaint within twenty days of notice of this ruling.

The City is ordered to provide notice of this Order.

DATED: April 6, 2018

_____________________________

Honorable Howard L. Halm

Judge of the Superior Court