Case Number: BC684610 Hearing Date: April 02, 2018 Dept: 32

jason whitmer,

Plaintiff,

v.

Farmers insurance group inc., et. al.,

Defendants.

Case No.: BC684610

Hearing Date: April 2, 2018

[TENTATIVE] order RE:

defendant’s demurrer to plaintiff’s complaint

BACKGROUND

This action arises out of Plaintiff Jason Whitmer’s (“Plaintiff”) employment with Defendant Farmers Insurance Exchange. The complaint in this action was filed by Plaintiff on November 22, 2017. Defendants Farmers Insurance Group, Inc. and Farmers Insurance Exchange (“Farmers”) demurred to the first three causes of action in the initial complaint on February 6, 2018. Plaintiff remains currently employed with Farmers. Plaintiff alleges causes of action for (1) Discrimination in Violation of FEHA; (2) Retaliation in Violation of FEHA; (3) Failure to Prevent in Violation of the FEHA; and (4) Discrimination Against Public Policy.

DISCUSSION

A demurrer challenges only the legal sufficiency of the complaint, not the truth of its factual allegations or the plaintiff’s ability to prove those allegations. (Picton v. Anderson Union High Sch. Dist. (1996) 50 Cal. App. 4th 726, 732.) The court must treat as true all of the complaint’s material factual allegations, but not contentions, deductions or conclusions of fact or law. (Id. at 732–33.) The complaint is to be construed liberally to determine whether a cause of action has been stated. (Id. at 733.)

Statute of Limitations

A demurrer based on a statute of limitations will not lie where the action may be, but is not necessarily, barred. (Committee for Green Foothills v. Santa Clara County Bd. of Supervisors (2010) 48 Cal.4th 32, 42.) In order for the bar to be raised by demurrer, the defect must clearly and affirmatively appear on the face of the complaint; it is not enough that the complaint shows that the action may be barred. (Geneva Towers Ltd. partnership v. City and County of San Francisco (2003) 29 Cal.4th 769, 781.)

Under the Fair Employment and Housing Act (“FEHA”), the employee must exhaust the administrative remedy provided by the statute by filing a complaint with the Department of Fair Employment and Housing (“DFEH”) and must obtain a notice of right to sue in order to be entitled to file a civil action in court based on the violations of the FEHA. (Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 63.) The FEHA provides that no complaint for any violation of its provisions may be filed with the DFEH after the expiration of one year from the date upon which the alleged unlawful practice occurred. (Ibid.)

Farmers contends that the Plaintiff’s first, second and third causes of action are time-barred by the applicable one-year statute of limitations. (Gov. Code §§12960 and 12965.) Plaintiff’s DFEH complaint was filed on October 13, 2017. (Complaint Exh. A.) As such Farmer’s demotion decisions made before October 13, 2016 may not be reviewed by this Court. Plaintiff alleges that in March 2016 he was informed he was not selected for the major Case Unit Manager Position because he could not meet the location requirement for the position in Westlake, California, as Plaintiff is a resident of Idaho. (Complaint ¶ 24.) Plaintiff then received a 60 day notice of termination letter. (Ibid.) Plaintiff alleges he was forced to take a demotion as a result of the 60 day termination notice. (Complaint ¶ 31.) This alleged demotion is before October 13, 2016.

Plaintiff contends the continuing violations theory applies to his claims. This theory is an equitable exception to the timely filing requirement. (Morgan at 64.) A continuing violation may be established by demonstrating (a) a companywide policy or practice, or (b) a series of related acts against a single individual. (Ibid.) The plaintiff must demonstrate that at least one act occurred within the filing period and that the harassment is more than the occurrence of isolated or sporadic acts of intentional discrimination. (Ibid.)

Plaintiff has not asserted allegations in the Complaint that a companywide systematic policy of discrimination occurred. Instead, Plaintiff alleges that “Ms. Wedding was actively seeking to rid the company of older, white male employees and replacing them with younger persons within gender and ethnic minority groups.” (Complaint ¶16.) Plaintiff has not sufficiently alleged facts for the continuing violations theory to apply to this claim based on a companywide policy.

Plaintiff also has not asserted allegations that he experienced a continuing violation through a series of related acts against him. Plaintiff’s first demotion allegedly occurred because “Kamala Wedding established a location requirement to prevent Plaintiff from being offered the job.” (Complaint ¶24.) Plainitff alleges that he was told “it was up to the Zone managers to decide who would be considered for the SIU positions.” (Complaint ¶27.) Plaintiff’s allegations state that Defendants agents, managers and employees could consider Plaintiff for other job opportunities. (Complaint ¶30.) Thus Plaintiff challenges a series of decisions made by different decision makers regarding varying positions much like the Plaintiff in Morgan. (Id. at 65; Complaint ¶20). Plaintiff has not sufficiently alleged facts for the continuing violations theory to apply to this claim based on a series of related acts.

Plaintiff in opposition contends that each time he receives another paycheck based on his wrongful demotion, he experiences another instance of discriminatory conduct. (Opp 6:24-25.) However, Plaintiff cites to no authority to persuade this Court of this proposition.

Thus, based on the facts alleged in the Complaint, Plaintiff’s causes of action one, two and three are barred by the applicable statute of limitations and the FEHA causes of action are untimely.

Protected Activity Under FEHA

To establish a prima facie case of retaliation in violation of FEHA Plaintiff must show (1) that he engaged in a protected activity; (2) the employer subjected the employee to an adverse employment action; and (3) a causal link exists between the protected activity and the employer’s action. (Moore v. Regents of the University of California (2016) 248 Cal.App.4th 216, 244.) “Protected activity” means the person has opposed practices forbidden under the FEHA or because the person has filed a complaint, testified, or assisted in any proceeding under FEHA. (Gov. Code §12940(h).)

Farmers contends that Plaintiff has not sufficiently alleged he was engaged in a protected activity. In opposition Plaintiff says he reported Ms. Wedding’s discriminatory treatment toward him. (Opp. 8:5.) However, this is not actually alleged in the Complaint. Plaintiff alleges that he gave Ms. Wedding feedback regarding doing a better job at assuming her staff have her best intentions in mind, trusting her staff and improving her very reactive behavior in certain situations. (Complaint ¶¶ 22-23.) Plaintiff does not allege any protected activity except that he filed a Complaint with DFEH after the alleged discriminatory demotions, and does not plead facts regarding any discrimination as a result of his filing the complaint with DFEH. Based on the allegations in the Complaint, Plaintiff has failed to plead that he was engaged in a protected activity under FEHA and as such the demurrer is granted as to the FEHA causes of action including “Failure to Prevent” which requires Plaintiff to sufficient plead a case of action for discrimination, harassment or retaliation. (Trujillo v. North County Transit District (1998) 63 Cal.App.4th 280, 289.)

Conclusion

For the foregoing reasons, the demurrer to the first, second and third causes of action is GRANTED WITH LEAVE TO AMEND.