2013-00137859-CU-OE

John Mikanda vs. California Department of Public Health

Nature of Proceeding: Motion to Strike

Filed By: Thomas, Shanna
Defendant California Dept. of Public Health’s Motion to Strike Specified Portions of
Plaintiff’s First Amended Complaint is GRANTED, without leave to amend.

Defendant moves to strike paragraphs 12 through 16 of the FAC, which allege events
occurring between 2005 to Nov. 2010, all outside the statute of limitations for claims
brought under FEHA. See, e.g. C.C.P., sec. 436(a).

Before suing for violation of the FEHA, a plaintiff must file a timely and sufficient
administrative complaint with the DFEH and receive a “right-to-sue letter”. (Govt.
Code, §§12960, 12965(b).) This requirement is jurisdictional. (Johnson v. City of Loma
th
Linda (2000) 24 Cal.App.4 61, 70.) Plaintiff has not met his burden of pleading the
timely filing of a sufficient complaint with the DFEH and obtaining a right-to-sue letter.
The doctrine of “exhaustion of administrative remedies” requires that where an
administrative remedy is provided by statute, relief must be sought from the
administrative body and this remedy exhausted before the courts will act. Morgan v.
Regents of University of California (2001) 88 Cal. App. 4th 52, 63. It is not a matter of
judicial discretion, but is a fundamental rule of procedure laid down by courts of last
resort, followed under the doctrine of stare decisis, and binding upon all courts.
Abelleira v. District Court of Appeal (1941)17 Cal. 2d 280, 292-293. The timely filing of
an administrative complaint with the California Department of Fair Employment and
Housing (the “DFEH”) and receipt of a right-to-sue notice is a prerequisite to a civil
action under the FEHA. (Gov’t Code § 12965(b); Commodore Home Systems, Inc. v.
Sup.Ct. (Brown) (1982) 32 Cal.3d 211, 214.) It has been held that the failure to
exhaust this administrative remedy is a “jurisdictional” defect (Okoli v. Lockheed
Technical Operations Co. (1995) 36 Cal.App.4th 1607, 1613); and “a jurisdictional
prerequisite to resort to the court.” (Johnson v. City of Loma Linda (2000) 24 Cal.4th
61, 70; see Campbell v. Regents of Univ. of Calif (2005) 35 Cal.4th 311,321.)

In opposition, plaintiff merely repeats his equitable tolling argument from his opposition
to the demurrer, which is applicable to the Labor Code section causes of action.
Plaintiff’s failure to oppose this motion is a concession to its merits. The motion to
strike is therefore granted without leave to amend.

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

Item 9 2013-00137859-CU-OE

John Mikanda vs. California Department of Public Health

Nature of Proceeding: Hearing on Demurrer (Department of Public Health)

Filed By: Thomas, Shanna

Defendant California Dept. of Public Health’s Demurrer to Plaintiff’s First Amended
Complaint is SUSTAINED, with and without leave to amend as set forth below.

Plaintiff’s Request for Judicial Notice is GRANTED. However, the exhibit attached to
the Declaration of Minney is extrinsic evidence, not considered on demurrer.

Defendant’s Request for Judicial Notice is GRANTED.

Plaintiff’s First Amended Complaint sets forth eight causes of action against defendants: the 1 for discrimination based on race/national origin, the 2 for
rd th
harassment based on race/national origin, the 3 for retaliation, the 4 for retaliation
th
and violation of Labor Code §1102.5, the 5 for retaliation and violation of Labor Code
th th
§6310, the 6 for violation of CFRA and FMLA, the 7 for failure to prevent
th
harassment, discrimination and retaliation and the 8 for defamation. Defendants
th
demur to all causes of action except the 8 for defamation.

st
Demurrer to the 1 for discrimination based on race/national origin is SUSTAINED,
with leave to amend.

Plaintiff’s FAC alleges in a conclusory fashion that “Defendant’s conduct was
motivated by animus toward Plaintiffs race/nationality.” (FAC 8:19-20.) This conclusory
statement is subject to demurrer. (Blank v. Kirwan (1985) 39 Cal.3d 311,318.) Plaintiff
alleges no facts to support that he suffered any adverse employment actions that were
due to his race or national origin.

Demurrer to the 2nd for harassment based on race/national origin is SUSTAINED,
without leave to amend.

Plaintiff does not allege any severe or pervasive harassment based on his race or
national origin. A harassment claim ordinarily requires more than “‘occasional, isolated,
sporadic, or trivial'” acts but instead requires evidence of “‘a concerted pattern of
harassment of a repeated, routine or a generalized nature.'” (Aguilar v. Avis Rent A
th
Car System, Inc. (1999) 21 Cal.4 121, 131.)

Hostile work environments are determined by looking at the totality of the
circumstances including: (1) the nature of the acts; (2) frequency of the offensive
encounters; (3) the total period of time over which the offensive conduct occurs; and
(4) the context of the harassing conduct. (Fisher v. San Pedro Peninsula Hospital
(1989) 214 Cal.App.3d 590, 610.)

Making a personnel decision is conduct of a type fundamentally different from the type
of conduct that constitutes harassment. Janken v. GM Hughes Electronics (1996) 46
Cal. App. 4th 55, 64.

In the FAC, only isolated instances of conduct by plaintiff’s supervisor are alleged,
insufficient to constitute harassment based on his race or national origin.

rd
Demurrer to the 3 for retaliation is SUSTAINED, with leave to amend.

Plaintiff’s retaliation claim fails to state any factual support for his conclusion that the
department “retaliated against Plaintiff for his complaints of race and national origin
based harassment and discrimination among other things,” (FAC, 10:23-27.) Such
conclusions of fact and of law are insufficient to support a prima facie case of
retaliation. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

Although plaintiff has pled protected activity, no facts supporting any causal nexus has
been alleged.

th
Demurrer to the 4 for retaliation and violation of Labor Code §1102.5, is SUSTAINED,
with leave to amend. The Third District Court of Appeal, in MacDonald v. State of California (2013) 219 Cal.
App. 4th 67, 68-69, made clear that an employee is required to exhaust the
administrative remedy set forth in Labor Code section 98.7 before filing suit in superior
court for retaliatory discharge in violation of section 1102.5. The Court held that
exhaustion of remedies was required where an administrative remedy was provided by
statute, even where the administrative remedy was couched in permissive rather than
mandatory language. The employee was required to exhaust that remedy prior to
pursuing his action.

California law before MacDonald held that prior to bringing an action under Labor
Code section 1102.5, a plaintiff is required to exhaust all administrative remedies, (
Campbell v. Regents of the University of California (2005) 35 Cal.4th 311.)Labor Code
section 98.7 sets out the procedure for filing a complaint with the Labor Commissioner.
It states that a person who believes that he has been retaliated against may file a
complaint with the Labor Commissioner within six months. Government Code section
8547.8 provides the statutory authority for a “whistleblower” retaliation claim by a state
employee. It covers reprisals or other improper acts taken against a state employee for
making a protected disclosure.

Government Code section 8547.8 (a) states a state employee who has suffered
retaliation “may” also file a complaint with the State Personnel Board, within 12
months.

Here, as plaintiff proffers additional facts in opposition, not pled in the FAC, plaintiff
may have leave to amend.

th
Demurrer to the 5 for retaliation and violation of Labor Code §6310, is SUSTAINED
with leave to amend.

A Labor Code section 6310 cause of action requires that the employee complain of
unsafe working conditions or an unsafe workplace. (Lujan v. Minagar (2004) 124
Cal.App.4th 1040, 1043). However it also provides no person shall discharge or in any
manner discriminate against any employee because the employee has instituted or
caused to be instituted any proceeding under or relating to his or her rights or has
testified or is about to testify in the proceeding or because of the exercise by the
employee on behalf of himself, herself, or others of any rights afforded him or her.

There are no allegations in the FAC related to complaints of health and safety
violations or any other acts referenced in L.C. sec. 6310 (a)(2). The demurrer is
sustained to the fifth cause of action for failure to allege facts sufficient to state a claim
for relief; there is a wholesale failure to allege facts to bring plaintiff within the stated
section.

th
Demurrer to the 6 for violation of CFRA and FMLA is SUSTAINED, with leave to
amend.

Although in opposition, plaintiff attempts to add extrinsic evidence to the FAC, by way
of an amended DFEH complaint purportedly submitted Sept. 28, 2012, including CFRA
allegations, the FAC only alleges receipt of a right to sue letter from the DFEH on
January 4, 2012.

Plaintiff may have leave to amend this cause of action.
Demurrer to the 7 for failure to prevent harassment, discrimination and retaliation is
SUSTAINED, with leave to amend for the reasons set forth in the demurrer.

Plaintiff shall file and serve his Second Amended Complaint not later than Thursday,
October 31, 2013. The responsive pleading shall be due filed and served 10 days later
(15 days if service is by mail).

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