Case Number: BC537549 Hearing Date: June 03, 2014 Dept: 58

JUDGE ROLF TREU
DEPARTMENT 58
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Hearing Date: Tuesday, June 3, 2014
Calendar No: 9
Case Name: Salazar v. Department of Public Health of the State of California, et al.
Case No.: BC537549
Motion: Demurrer and Motion to Strike
Moving Party: Defendant California Department of Public Health
Responding Party: Plaintiff Rachel M. Salazar
Notice: OK

Tentative Ruling: Demurrer is sustained as to the 2nd, 4th, and 6th COAs without leave to amend. Motion to strike is granted in part with 15 days leave to amend.
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On 2/25/14, Plaintiff Rachel M. Salazar filed this action against Defendants Department of Public Health of the State of California (“CDPH”) and Antonio Bustamante arising out of her employment. Plaintiff asserts causes of action for (1) FEHA sexual harassment, (2) FEHA sex discrimination, (3) FEHA failure to prevent harassment and discrimination, (4) FEHA failure to investigate, (5) FEHA retaliation, and (6) injunctive relief. CDPH has filed a demurrer and a motion to strike.

Factual Allegations of the Complaint –
Plaintiff began her employment with CDPH in the Long Beach Office in 1987 as a communicable disease representative (“CDR”). ¶ 14. During her first four years of employment, Edwin Lopez, a CDR, often made inappropriate remarks to Plaintiff (¶ 17): Plaintiff complained about Mr. Lopez conduct but no action was taken (¶ 18). Mr. Lopez was promoted to a supervisory position in the Santa Ana Office in 1990 and returned to the Long Beach Office as a regional manager in 1994. ¶ 19.

In September 1994, Bustamante was transferred to the Los Angeles Office after being accused of sexual harassment by Cheryl Clark, and Plaintiff would see him consistently at conferences and other work-related events. ¶ 21. Bustamante made many sexually inappropriate comments to Plaintiff and discussed his sex life in detail. ¶¶ 22-24. In January 2004, Marcela Herrea-Carpenter and Bustamante were engaged in a power struggle as supervisors in the Long Beach Office. ¶¶ 16, 24.

In October 2004, Plaintiff took a flight with Bustamante who was intoxicated and discussed his sexual endeavors. ¶ 25. At a work party in October 2004, Plaintiff witnessed Mr. Bustamante banging on a coworker’s (Elaine Martinez with whom Bustamante had previously had an affair) hotel room door after which another coworker Lisa Schroeder accused Bustamante of attempting to “rape” Ms. Martinez. ¶ 26.

In September 2006, Bustamante returned to the Long Beach Office. ¶ 27. In January 2008, Bustamante shared a small office with Plaintiff (¶ 28): Bustamante often made personal calls of a highly sexual nature (¶ 29). Bustamante often spoke to Plaintiff about inappropriate topics including the accusations of Ms. Clark, the accusations of Ms. Schroeder, Bustamante’s relationship with Ms. Martinez, and the lifestyle of Mr. Lopez. ¶ 30. Bustamante was often intoxicated at work (¶ 31), and would spent time in the parking lot talking on his telephone (¶ 32).

Plaintiff reported the incidents of sexual harassment to Romni Neiman, a section chief; to Jacqueline Mincks, an assistant branch chief, in March 2009; and to Mary Phillip, chief of the office of civil rights. ¶ 33. Ms. Neiman gave a confidential document to Mr. Lopez, who gave it to Bustamante who informed Plaintiff that he knew of Plaintiff’s report of sexual harassment against him: Ms. Neiman sent Plaintiff to work in Richmond for one month. ¶ 34.

Ms. Phillip conducted an investigation into Bustamante (¶ 35) and a two-hour staff training session on 3/20/09 (¶ 36). In March 2009, Bustamante took an extensive medical leave and returned to work 18 months later in the Gardena Office (¶ 37): Ms. Neiman and Mr. Lopez decided that Plaintiff should do the majority of Bustamante’s work while he was out on leave (¶ 38).

On 3/4/09, Plaintiff was offered a lateral transfer to the Richmond Office which Plaintiff declined. ¶ 39. From March 2009 through the remainder of the year, Ms. Mincks placed additional pressure on Plaintiff for reporting Bustamante’s actions. ¶ 40. On 3/27/09, Ms. Mincks sent an email to Plaintiff and other CDPH officials that portrayed Plaintiff in a negative light for not willing to transfer laterally and being unwilling to take on higher level work without being paid out of class. ¶ 41. In a 4/13/09 email copied to other CDPH officials, Ms. Mincks informed Plaintiff that she was not allowed to discuss any of her issues with coworkers or staff. ¶ 42.

On 7/1/09, Plaintiff was promoted to a consulting communicable disease representative (“CCDR”); however, Plaintiff had not been previously promoted to this position because Ms. Minck was upset at Plaintiff exposing problems at CDPH (¶ 45).

In late September 2009, Guadalup Espain and Joe Sanchez temporarily became in charge, with Mr. Espain becoming Plaintiff’s immediate supervisor: they were aware of Plaintiff’s issues with Bustamante. ¶ 47. In October 2009, Plaintiff was assigned “reactor desk coordinator,” which was in effect a demotion as her work consisted mostly of clerical work (¶ 48; see also ¶ 44 (explaining the work of a CCDR)) and for which Plaintiff was not provided adequate training or support (¶ 49). On 12/2/09, Plaintiff received a performance review in which she received a satisfactory to above average ratings for all categories except in skill, in which she was given a “improvement needed” rating. ¶ 51. On 1/4/10, Plaintiff contacted an attorney at the office of civil rights, Tim Ford, to make a charge of retaliation: no response was made. ¶ 53. On 7/15/11, Mr. Espain and Ms. Neiman met with Plaintiff who was told to maintain a professional demeanor and to not speak negatively about others.. ¶ 54. Plaintiff has developed various health issues as a result of the conduct she has suffered. ¶ 55.

On 6/5/09, Plaintiff filed a charge with the DFEH and the EEOC. ¶¶ 43, 56. On 9/26/12, Plaintiff received the results of the EEOC’s investigation which found sexual harassment. ¶ 57. In October 2012, Plaintiff filed a charge with the EEOC based on retaliation which was referred to the DFEH which issued a right to sue on 12/28/12. ¶ 58. On 11/27/13, EEOC granted Plaintiff the right to sue. ¶ 59.

Demurrer –

1. 2nd COA for Sex Discrimination and 4th COA for Failure to Investigate
CDPH demurs to the 2nd COA on the ground that Plaintiff fails to allege any adverse employment actions. See Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 605 (distinguishing between discrimination and harassment); Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1052 (addressing adverse employment actions as an element for retaliation). CDPH demurs to the 4th COA on the ground that there is no FEHA claim for failure to investigate. See Gov’t Code § 12940(j), (k). Plaintiff does not challenge the demurrer to these COAs. Opp’n [Dem.] p. 2:5-5. Therefore, the demurrer is sustained as to the 2nd and 4th COAs without leave to amend.

2. 6th COA for Injunctive Relief
Plaintiff’s 6th COA requests relief against CDPH as follows: to prevent any policy or practice of retaliation or sexual harassment, to conduct education and training for sexual harassment and retaliation, and to develop policies and procedures for reporting, investigating, and sanctioning FEHA violations. Complaint ¶ 98. CDPH argues that Plaintiff has failed to allege facts to support a reasonable probability the acts will be repeated in the future (see, e.g., Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228, 1265-66) and to support irreparable injury to enjoin public officers or agencies from performing their duties (Tahoe Keys Property Owners’ Ass’n v. State Water Resources Control Bd. (1994) 23 Cal.App.4th 1459, 1471). The Court agrees.

Plaintiff fails to allege any facts that CDPH has a policy or practice of retaliation or sexual harassment, failed to conduct education and training, and fails to have policies and procedures for reporting, investigating, and sanctioning FEHA violations. That Plaintiff’s factual allegations may support FEHA violations in Plaintiff’s case does not support either a reasonable probability of repeated acts in the future or of irreparable injury. The demurrer is sustained as to the 6th COA.

The Court is inclined to sustain the demurrer as to the 6th COA without leave to amend because injunction is a remedy and not a cause of action; however, the Court will grant leave to amend to assert injunctive relief in the appropriate claims if Plaintiff can explain how she might amend if granted leave. See Shamsian v. Atlantic Richfield Co. (2003) 107 Cal.App.4th 967, 984-85.

Motion to Strike –

1. Punitive Damages (Public Entity), Prejudgment Interest, and Contract
CDPH moves to strike Plaintiff’s request for punitive damages on the ground that it is exempt from liability (see Gov’t Code §§ 818, 825; McAllister v. South Coast Air Quality Management Dist. (1986) 183 Cal.App.3d 653, 656) and Plaintiff’s request for prejudgment interest on the ground that it is exempt from liability (Civil Code § 3291). CDPH also moves to strike Plaintiff’s references to being a contract employee (Complaint ¶ 99) despite alleging that she was employed by a state agency (Complaint ¶¶ 4-5, 14-15) which results in no contractual employment rights (see Miller v. State of Cal. (1977) 18 Cal.3d 808, 813-14). Plaintiff does not challenge the motion to strike as to these issues. Opp’n [Strike] p. 1:3-11. The motion to strike is granted without leave to amend.

2. Statute of Limitations and Failure to Exhaust Administrative Remedies
CDPH moves to strike Plaintiff’s allegations of conduct prior to 6/5/08, one year preceding Plaintiff’s DFEH complaint (see Cucuzza v. City of Santa Clara (2002) 104 Cal.App.4th 1031, 1040), and of conduct prior to December 2007, as revealed by Plaintiff’s DFEH complaint (see Rodriguez v. Airborne Express (9th Cir. 2001) 265 F.3d 890, 896-97). See RJN Ex. A (6/5/09 DFEH Complaint). In opposition, Plaintiff asserts that “at the very least,” these allegations are critical to give background information and may be further admissible for various purposes. Opp’n [Strike] p. 3:10-14.

Plaintiff alleges that Bustamante engaged in inappropriate discussions with Plaintiff in January 2008 (see Complaint ¶¶ 28-29): this is the subject of Plaintiff’s DFEH Complaint (RJN Ex. A). This supports application of the continuing violation doctrine for conduct as of December 2007, which in part falls outside of the statute of limitations. See Cucuzza, 104 Cal.App.4th at 1040-41. Although Plaintiff’s opposition appears to assert that her claims do not seek to impose liability for conduct occurring prior to December 2007, this is not clear from the Complaint. Therefore, the Court will grant Plaintiff leave to amend to clearly delineate which facts are background or contextual, and which facts give rise to the liability against CDPH.

To the extent Plaintiff argues that these background or contextual facts are admissible with respect to Plaintiff’s claims and damages, this evidentiary matter is not properly directed at the pleadings.

3. Punitive Damages (Bustamante)
Bustamante moves to strike Plaintiff’s claim for punitive damages as failing to support oppression, fraud, or malice. The Court disagrees. Plaintiff alleges that from January 2008, Bustamante often spoke about inappropriate sexual topics in the presence of or with Plaintiff. Complaint ¶¶ 28-30. Notably, there is no challenge to the sufficiency of the allegations of Plaintiff’s sexual harassment claim against Bustamante. Therefore, at the pleading stage, these allegations support both malice and oppression. See College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 725 (malice); Civil Code § 3294(c)(2) (oppression); Mock v. Michigan Millers Mutual Ins. Co. (1992) 4 Cal.App.4th 306, 331 (despicable conduct). The motion to strike Plaintiff’s claim for punitive damages against Bustamante is denied.

4. Ruling
The motion to strike is granted without leave to amend as to the claims for punitive damages and prejudgment interest against CDPH and the allegations pertaining to a contract employment; granted with leave to amend as to the allegations of conduct prior to December 2007; and is otherwise denied.