Case Number: BC645137 Hearing Date: June 15, 2018 Dept: 47

Sonia Holguin v. City of Los Angeles

DEMURRER TO COMPLAINT

MOVING PARTY: Defendant City of Los Angeles

RESPONDING PARTY(S): No opposition filed.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiff alleges that the City of Los Angeles failed to provide Plaintiff a private room to pump her breast milk and that she suffered retaliation when she complained.

Defendant City of Los Angeles demurs to the Complaint.

TENTATIVE RULING:

Defendant City of Los Angeles’s demurrer to the Complaint is MOOT by virtue of Plaintiff having timely filed a first amended complaint on June 4, 2018 in accordance with CCP § 472(a).

Moving party to give notice, unless waived.

IT IS SO ORDERED.

Dated: June 15, 2018 ___________________________________

Randolph M. Hammock

Judge of the Superior Court

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.

Case Number: BC685997 Hearing Date: June 15, 2018 Dept: 47

Sonia Holguin v. City of Los Angeles

DEMURRER TO COMPLAINT

MOVING PARTY: Defendant City of Los Angeles

RESPONDING PARTY(S): No opposition filed.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiff alleges that the City of Los Angeles failed to provide Plaintiff a private room to pump her breast milk and that she suffered retaliation when she complained.

Defendant City of Los Angeles demurs to the Complaint.

TENTATIVE RULING:

Defendant City of Los Angeles’s demurrer to the Complaint is SUSTAINED with leave to amend as to the first through fifth causes of action.

DISCUSSION:

Meet and Confer

The Declaration of Stacey Anthony reflects that an attempt to meet and confer was made, but Plaintiff’s counsel did not respond until the day before the deadline for the demurrer to be filed. This satisfies the meet and confer requirement set forth at CCP § 430.41(a)(3)(B)(party who filed in the pleading failed to meet and confer in good faith).

Request For Judicial Notice

Defendant requests that the Court take judicial notice of the following: (1) Complaint filed in LASC Case No. BC644631; (2) Complaint filed with the California DFEH dated December 22, 2015 and responses thereto; (3) Clerk’s Notice of Voiding of Filing, Case NO. BC644631. Requests Nos. 1 and 3 are GRANTED per Evid. Code § 452(d)(court records). Request No. 2 is DENIED. These are not certified copies of the records of a State Agency.

Analysis:

1. First Cause of Action (Failure To Provide A Reasonable Accommodation In Violation of FEHA); Second Cause of Action (Failure To Engage In The Interactive Process In Violation of FEHA); Third Cause of Action (Retaliation In Violation of FEHA); Fourth Cause of Action (Hostile Work Environment In Violation of FEHA); Fifth Cause of Action (Failure To Prevent Harassment or Retaliation In Violation of FEHA).

Defendant argues that although Plaintiff alleges that she filed a DFEH charge in June 2017 (Complaint, ¶ 5), the conduct that comprises her lawsuit occurred three years before in 2014. Complaint, ¶¶ 9-24. Defendant argues that Plaintiff’s alleged June 2017 filing with the DFEH was more than one year after the alleged unlawful practice occurred (Gov. Code § 12960(d), as her claim is barred for failure to timely exhaust administrative remedies. This argument is well-taken.

n1 Under FEHA, an administrative complaint filed with the DFEH must be filed within one year of the date of the alleged discriminatory action. (Gov. Code, § 12960, subd. (d).) The DFEH, if it decides not to pursue the matter, must issue a right-to-sue letter no later than a year after the complaint is filed. (Id., § 12965, subd. (b).) The complainant then has one year from the date of that letter to file a civil action. (Id., subd. (d)(2).)

Pearson Dental Supplies, Inc. v. Superior Court (2010) 48 Cal.4th 665, 671 n.1.

Plaintiff’s Complaint alleges that the last specific date on which she had a communication regarding alternate rooms to express her breast milk was on October 21, 2014. Complaint, ¶ 24. Then, Plaintiff simply leaps to a vague allegation that she was continued to experience “retaliation through at least July 2016” via “discipline[ ]” and the fact that here requested accommodation was never granted, and that her request for reasonable accommodation to breastfeed and/or pump in a clean and private environment was denied “as recently as July 2016.” ¶ 26.

Plaintiff must factually allege what occurred “as recently as July 2016,” most importantly to demonstrate whether the continuing violation doctrine applies to enable Plaintiff to sue for conduct which occurred in 2014.

A plaintiff suing for violations of FEHA ordinarily cannot recover for acts occurring more than one year before the filing of the DFEH complaint. (Gov. Code, § 12960, subd. (d); Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, 822–823 [111 Cal. Rptr. 2d 87, 29 P.3d 175] (Richards) [“[P]ermitting an employee indefinitely to delay the filing of a lawsuit … would be contrary to the FEHA’s statute of limitations and potentially prejudicial to the employer.”].) Plaintiff filed a DFEH complaint on April 16, 2002. Thus, plaintiff could not recover for acts occurring before April 16, 2001, unless the continuing violation doctrine applies.

Jumaane v. City of Los Angeles (2015) 241 Cal.App.4th 1390, 1400.

“The continuing violation doctrine ‘allows liability for unlawful employer conduct occurring outside the statute of limitations if it is sufficiently connected to unlawful conduct within the limitations period.” (Citation omitted.)” Trovato v. Beckman Coulter, Inc. (2011) 192 Cal.App.4th 319, 325-26.

We believe the better rule is to allow application of the continuing violation doctrine in retaliation cases if the requisite showing of a continuing course of conduct has been made. Thus, we reiterate that in a retaliation case, as in a disability accommodation or harassment case, the FEHA statute of limitations begins to run when an alleged adverse employment action acquires some degree of permanence or finality. (Richards, supra, 26 Cal. 4th at p. 823.)

Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1059 (bold emphasis added).

Generally speaking, leave to amend must be allowed where there is a reasonable possibility of successful amendment. Goodman v. Kennedy (1976) 18 Cal.3d 335, 348. Such appears to be the case here for these particular cause of action. Plaintiff alleges she filed a Complaint of Discrimination with the DFEH on June 30, 2017, based upon acts which took place through July, 2016. Complaint, ¶ 5, ¶ 26. She simply needs to give greater details for the relevant time periods in order to utilize the “continuing violations doctrine.”[1]

Accordingly, the demurrer to the first through fifth causes of action is SUSTAINED with 30 days leave to amend.

Moving party to give notice, unless waived.

IT IS SO ORDERED.

Dated: May 15, 2018 ___________________________________

Randolph M. Hammock

Judge of the Superior Court

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.

[1] Additionally, any amended Complaint should perhaps explain the time periods in which the Plaintiff was actually breast-feeding her child, and the date of birth of her child.