Case Number: BC554804 Hearing Date: February 09, 2015 Dept: 34
Moving Party: Defendant City of Long Beach (“defendant” or “City”)

Resp. Party: Plaintiffs Albert Vargas and Pablo Orduno (“plaintiffs”)

Defendant’s demurrer to plaintiffs’ first amended complaint is SUSTAINED.

BACKGROUND:

Plaintiffs commenced this action on 8/14/14. On 10/1/14, plaintiffs filed a first amended complaint against defendants for: (1) racial discrimination; (2) retaliation (FEHA); (3) retaliation (Lab. Code, § 6310); and (4) retaliation (Lab. Code, § 1102.5.) Plaintiffs are males of Mexican descent who were employed by defendant and assigned as partners in a motorcycle patrol unit. (FAC ¶ 9.) In 2008, Vargas filed a lawsuit against the Long Beach Police Department, which concluded with a judgment in his favor. (Id., ¶ 10.) In February 2014, Vargas learned that his supervisor had told the entire unit that Vargas was a detriment to the department and to the careers of other employees, and both plaintiffs complained about this statement. (Id., ¶ 11.) Plaintiffs were subsequently ordered to wear tape recorders while performing their duties, which plaintiffs allege is equivalent of branding a police officer as incompetent. (Id., ¶ 12.) Plaintiffs allege that this was done in retaliation for plaintiffs’ protected activities. (Id., ¶ 13.) Plaintiffs allege that Vargas was also passed over for the role of acting Sergeant for less senior, non-Hispanic officers. (Id., ¶ 14.)

ANALYSIS:

Defendant demurs to the entire FAC and the four causes of action contained therein for failure to state sufficient facts. All of plaintiffs’ causes of action are based in statute, and generally facts in support of a statutory cause of action must be specifically pled. (See Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 604.)

First cause of action for race discrimination

To show a cause of action for workplace discrimination, plaintiff must provide facts showing that: (1) plaintiff was a member of a protected class; (2) she was qualified for the position sought, or was performing competently in the position held; (3) she suffered an adverse employment action; and (4) some other circumstance suggests discriminatory motive. (Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 355.) An employee seeking recovery on a theory of unlawful discrimination must plead that she has been subjected to an adverse employment action that materially affects the terms, conditions, or privileges of employment. (See Akers v. County of San Diego (2002) 95 Cal.App.4th 1441, 1455.)

Defendant is correct that plaintiffs fail to allege facts which show that they suffered adverse employment actions because of their race. Plaintiffs allege that they are of Mexican descent. (FAC ¶ 17.) Plaintiffs allege that they were qualified and competent to perform their duties. (Id., ¶ 19.) Plaintiffs allege that Vargas’s supervisor stated that Vargas was a “detriment to the department and to the careers of those working with” him, but there are no allegations which suggest that this statement was motivated by Vargas’s race. (See id., ¶ 22.) Plaintiffs allege that they were ordered to wear tape-recorders, but plaintiffs appear to allege that this was because of Vargas’s previous lawsuit and because of Orduno’s association with Vargas, and not because of their race. (See id., ¶ 24.) Plaintiffs vaguely allege that Vargas was passed over for the role of acting Sergeant for less senior, non-Hispanic officers, but Vargas does not allege that he was qualified for the position of acting Sergeant or that he was not given the position because of his race. (See id., ¶ 25.)

Accordingly, defendant’s demurrer to the first cause of action is SUSTAINED.

Second cause of action for retaliation (FEHA)

To establish a cause of action for retaliation under FEHA, a plaintiff must show: “(1) he or she engaged in a ‘protected activity,’ (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer’s action.” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.)

In the second cause of action, plaintiffs allege the same facts as asserted in the first cause of action, i.e., that plaintiffs were insulted and required to wear tape recorders in retaliation for Vargas pursuing a lawsuit and both plaintiffs complaining about Vargas’s supervisor’s statements. (See FAC ¶¶ 31-34.) Plaintiffs do not allege sufficient facts to show a causal link between the purportedly adverse actions and any protected activity. “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.’” (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 615.) There are no allegations as to when plaintiffs were required to wear the tape recorders, who decided to order them to wear the recorders, or whether the individual(s) who made the order knew of plaintiffs’ allegedly protected activity.

Additionally, other than conclusory statements that the wearing of tape recorders is a “scarlet letter” for police officers, there are no facts which suggest that wearing the recorders constitutes an adverse employment action. An adverse action must materially affect the terms, conditions, or privileges of employment. (Yanowitz, 36 Cal.4th at pp. 1050-1052.) It is unclear how the tape recorders or the supervisor’s statements have affected the terms, conditions, or privileges of plaintiffs’ employment. Though being passed over for a promotion may constitute an adverse employment action, plaintiffs do not allege that that Vargas was denied the acting Sergeant position because of his alleged protected activity. (See FAC ¶ 35.)

Accordingly, defendants’ demurrer to the second cause of action is SUSTAINED.

Third and fourth causes of action for retaliation

Defendant is correct that plaintiffs fail to allege that they timely filed claims for their third and fourth causes of action. Pursuant to Government Code section 945.4:

Except as provided in Sections 946.4 and 946.6, no suit for money or damages may be brought against a public entity on a cause of action for which a claim is required to be presented in accordance with Chapter 1 (commencing with Section 900) and Chapter 2 (commencing with Section 910) of Part 3 of this division until a written claim therefor has been presented to the public entity and has been acted upon by the board, or has been deemed to have been rejected by the board, in accordance with Chapters 1 and 2 of Part 3 of this division.

Section 905 requires claims to be presented for money or damages against local public entities except in certain situations that are not applicable here. (See Gov. Code, § 905.) “Local public entities” include cities. (Gov. Code, § 900.4.)

Under the Tort Claims Act, complainants alleging claims for money or damages against public entities must file a claim with the entity, and then file a lawsuit only where claims were denied or rejected. (City of Ontario v. Sup. Ct. (1993) 12 Cal. App. 4th 894, 898.) Timely claim presentation is a condition precedent to filing a lawsuit and complaints that do not allege timely claim presentation or cognizable excuses, are subject to a general demurrer. (Shirk v. Vista Unified School Dist. (2007) 42 Cal. 4th 201, 209.)

Though plaintiffs allege that they filed claims as to their FEHA claims, they do not make such allegations as to their Labor Code claims. (See FAC ¶¶ 26, 36.) In the opposition, plaintiffs attempt to provide evidence of such claims. This evidence will not be considered because it is not proper for a demurrer. (See Code Civ. Proc., § 430.30(a) [grounds for a demurrer must appear on the face of the pleading or judicially noticed items].)

Even if timely claims were alleged, plaintiffs fail to allege sufficient facts to support these causes of action. Labor Code section 6310 prohibits discrimination against employees for making complaints concerning the safety of working conditions. (See Lab. Code, § 6310.) Plaintiffs do not allege that they complained of actual unsafe conditions; instead, plaintiffs allege that they complained that Vargas’s supervisor’s statements made them fear that Vargas would not get requested assistance in the field. (FAC ¶ 41.) “The voicing of a fear about one’s safety in the workplace does not necessarily constitute a complaint about unsafe working conditions under Labor Code section 6310.” (Muller v. Automobile Club of So. California (1998) 61 Cal.App.4th 431, 452 [disapproved of on other grounds by Colmenares v. Braemar Country Club, Inc. (2003) 29 Cal.4th 1019].) Plaintiffs do not allege facts which show that their workplace actually became unsafe as a result of the supervisor’s statements.

Labor Code section 1102.5 prohibits retaliation against an employee who discloses information to a government agency where the employee has reasonable cause to believe the information discloses a violation of the law. (See Lab. Code, § 1102.5(b).) There no facts alleged which establish that the complained-of conduct (the supervisor’s statements that Vargas was a “detriment”) could reasonable be viewed as illegal. (See FAC ¶¶ 50, 55.) Moreover, as discussed above, plaintiffs do not sufficiently allege a causal connection between their complaints and any adverse employment action. (See id., ¶¶ 51-54.)

Accordingly, defendant’s demurrer to the third and fourth causes of action is SUSTAINED.

The Court is concerned that plaintiffs have already filed a FAC, and that trial is scheduled to commence on July 27, 2015. Nonetheless, the Court will give plaintiffs 10 days to file a Second Amended Complaint.