Case Number: EC062045 Hearing Date: June 06, 2014 Dept: B

Demurrer and Motion to Strike

The Complaint alleges that the Plaintiff was an employee of the Defendant as a grounds worker. On December 9, 2009, the Plaintiff was injured in his employment and was issued work restrictions that limited the amount he could lift or push and pull. In response, the Defendant decided that the Plaintiff could no longer perform his job and relieved him of his duties as a grounds worker. Further, the Defendant refused to consider an accommodation for the Plaintiff’s work restrictions. Subsequently, the Defendant terminated the Plaintiff’s employment.

The Plaintiff brought this action to seek damages for the violation of his rights. The Causes of Action in the Complaint are:
1) FEHA Claim – Disability Discrimination
2) FEHA Claim – Race, Ancestry, and National Origin Discrimination
3) FEHA Claim – Failure to Accommodate Disability
4) FEHA Claim – Failure to Interact with Plaintiff to Determine Reasonable Accommodation
5) FEHA Claim – Failure to Prevent Discrimination and Harassment
6) Violation of California Family Rights Act
7) FEHA Claim – Retaliation
8) Wrongful Termination

This hearing concerns the Defendant’s demurrer and motion to strike.

An initial issue is that the Defendant requests that the Court take judicial notice of its own records, e.g., a job analysis for a grounds maintenance worker, two letters to the Plaintiff, a reasonable accommodations summary, and a disability retirement election application. The taking of judicial notice of the official acts of a governmental entity does not in and of itself require acceptance of the truth of factual matters which might be deduced from the official acts. Cruz v. County of Los Angeles (1985) 173 Cal. App. 3d 1131, 1134. Although the Court may take judicial notice that these documents exist, it does not take judicial notice of the facts in them, e.g., the facts in letters to the Plaintiff regarding communications from the Defendant to the Plaintiff about his disability. Accordingly, the Court declines to take judicial notice of any of these documents because none of them contain facts of which the Court may take judicial notice under CCP section 452.

Further, the Plaintiff’s claims are directed at a public entity, San Marino Unified School District. California law requires that causes of action against a public entity to be pleaded with particularity and that every fact essential to the existence of statutory liability must be pleaded. Susman v. Los Angeles (1969) 269 Cal. App. 2d 803, 809.

1. Demurrer to First Cause of Action – FEHA Claim – Disability Discrimination

The Defendant argues that the Plaintiff has not pleaded that the manner in which he could have been accommodated or facts indicating that his employment was terminated for his disability. A cause of action for discrimination must plead facts demonstrating the following:

1) the plaintiff was a member of a protected class or engaged in a protected activity,
2) the plaintiff was qualified for the position he sought or was performing competently in the position he held,
3) he suffered an adverse employment action, such as termination, demotion, or denial of an available job; and
4) some other circumstance suggests discriminatory [or retaliatory] motive.
Mamou v. Trendwest Resorts, Inc. (2008) 165 Cal. App. 4th 686, 713-714.

A review of the Plaintiff’s first cause of action reveals that it pleads conclusions without any supporting facts. For example, the Plaintiff alleges in paragraph 21 that the Defendants discriminated against the Plaintiff on the basis of physical disability. The Plaintiff does not plead any facts that identify the discrimination. Rather he incorporates earlier paragraphs of his complaint into the first cause of action,

This is an improper use of incorporation. A civil plaintiff may, for the sake of convenience, incorporate by reference previous portions of the pleading for informational purposes only. Cal-West Nat. Bank v. Superior Court (1986) 185 Cal. App. 3d 96, 101. Neither the Court nor the Defendant is required to search the pleadings in order to determine whether the Plaintiff has pleaded a cause of action. Instead, the essential elements of each cause of action must be pleaded within the cause of action.

Further, the Plaintiff does not plead the claim with the required particularity. As noted above, the Plaintiff must allege that he was qualified for the position he sought or he was performing competently in the position he held. The Plaintiff does not allege any particular facts regarding this element. Instead, the Plaintiff alleges the conclusion in paragraph 22 “The Plaintiff was performing his work in a satisfactory manner”. This is insufficient because it lacks any particular facts to identify his position or to support the conclusion that he was performing his work in a satisfactory manner.

Accordingly, there are also grounds for a demurrer for the failure to state sufficient facts. Since this is the original complaint, the Court grants the Plaintiff 15 days leave to amend. The Plaintiff must plead each fact essential to his cause of action within the cause of action.

2. Demurrer to Second Cause of Action – FEHA Claim – Race, Ancestry, and National Origin Discrimination

The Defendant argues that the Plaintiff has not pleaded that facts indicating that his employment was terminated based on his race, ancestry, or national origin. The Plaintiff claims that he suffered discrimination because of his national origin, which is Mexico.

A cause of action for discrimination must plead facts demonstrating the following:

1) the plaintiff was a member of a protected class or engaged in a protected activity,
2) the plaintiff was qualified for the position he sought or was performing competently in the position he held,
3) he suffered an adverse employment action, such as termination, demotion, or denial of an available job; and
4) some other circumstance suggests discriminatory [or retaliatory] motive.
Mamou v. Trendwest Resorts, Inc. (2008) 165 Cal. App. 4th 686, 713-714.

A review of the Plaintiff’s second cause of action reveals that it pleads conclusions without any supporting facts. For example, the Plaintiff alleges in paragraph 30 that the Defendants discriminated against the Plaintiff on the basis of his race, ancestry, and national original. The Plaintiff does not plead any facts that identify the discrimination. He merely incorporates the introductory paragraphs of the Complaint.

In the opposition, the Plaintiff argues that these essential facts are alleged in other portions of the Complaint. This is an improper use of incorporation. A civil plaintiff may, for the sake of convenience, incorporate by reference previous portions of the pleading for informational purposes only. Cal-West Nat. Bank v. Superior Court (1986) 185 Cal. App. 3d 96, 101. Neither the Court nor the Defendant is required to search the pleadings in order to determine whether the Plaintiff has pleaded a cause of action. Instead, the essential elements of each cause of action must be pleaded within the cause of action.

Further, the Plaintiff does not plead the claim with the required particularity. As noted above, the Plaintiff must allege that he was qualified for the position he sought or he was performing competently in the position he held. The Plaintiff does not allege any particular facts regarding this element. Instead, the Plaintiff alleges the conclusion in paragraph 31 “The Plaintiff was performing his work in a satisfactory manner”. This is insufficient because it lacks any particular facts to identify his position or to support the conclusion that he was performing his work in a satisfactory manner.

Accordingly, there are also grounds for a demurrer for the failure to state sufficient facts. Since this is the original complaint, the Court grants the Plaintiff 15 days leave to amend.

3. Demurrer to Third Cause of Action – FEHA Claim – Failure to Accommodate Disability

The Defendant argues that the Plaintiff did not plead sufficient facts to demonstrate that he is qualified for his position.

Section 12940(m) provides that it is an unlawful employment practice for an employer to “fail to make reasonable accommodation for the known physical or mental disability of an applicant or employee.” The essential elements of a failure to accommodate claim are the following:

1) the plaintiff has a disability covered by the FEHA;
2) the plaintiff is a qualified individual (i.e., he or she can perform the essential functions of the position); and
3) the employer failed to reasonably accommodate the plaintiff’s disability.
Cuiellette v. City of Los Angeles (2011) 194 Cal. App. 4th 757, 766.

A review of the Plaintiff’s third cause of action reveals that it pleads conclusions without any supporting facts. For example, the Plaintiff alleges in paragraphs 39 and 40 that he had a physical disability. There are no allegations that identify the disability to demonstrate that it is covered by FEHA. Instead, the Plaintiff pleads conclusions that repeat the essential elements without any supporting facts.

In the opposition, the Plaintiff argues that these essential facts are alleged in other portions of the Complaint. This is an improper use of incorporation. A civil plaintiff may, for the sake of convenience, incorporate by reference previous portions of the pleading for informational purposes only. Cal-West Nat. Bank v. Superior Court (1986) 185 Cal. App. 3d 96, 101. Neither the Court nor the Defendant is required to search the pleadings in order to determine whether the Plaintiff has pleaded a cause of action. Instead, the essential elements of each cause of action must be pleaded within the cause of action.

Further, the Plaintiff does not plead the claim with the required particularity. As noted above, the Plaintiff must allege that he is a qualified individual and that he can perform the essential functions of the position. The Plaintiff does not allege any particular facts regarding this element. Instead, the Plaintiff alleges the conclusion in paragraph 42 that he was able to perform the essential functions of his job. This is insufficient because it lacks any particular facts to support the conclusion.

Further, the allegations in paragraphs 13 to 18 that, after his injury, the Plaintiff had work restrictions on his ability to lift, push, pull, and to stand for extended periods of time.. The Plaintiff did not allege any particular facts to identify the manner in which the Defendant could have reasonably accommodated his disability so that the Plaintiff could perform his duties.

Accordingly, there are also grounds for a demurrer for the failure to state sufficient facts. Since this is the original complaint, the Court grants the Plaintiff 15 days leave to amend.

4. Demurrer to Fourth Cause of Action – FEHA Claim – Failure to Interact with Plaintiff to Determine Reasonable Accommodation

The Defendant argues that the Plaintiff did not plead sufficient facts. The essential facts that must be alleged to plead a claim based on the failure to interact are the following:

1) the employer knew about the employee’s disability;
2) the employee requested accommodation or assistance for his or her disability;
3) the employer did not make a good faith effort to assist the employee in seeking accommodation; and
4) the employee could have been reasonably accommodated but for the employer’s lack of good faith.
Cravens v. Blue Cross & Blue Shield (8th Cir.) 214 F.3d 1011, 1021.

The Plaintiff’s allegations contain the same defects identified above and will not be repeated here. The Plaintiff quotes the essential elements without pleading with particularity the supporting facts, e.g., particular facts demonstrating that the Defendant knew about the disability or that the Plaintiff requested an accommodation. Further, the Plaintiff attempts to incorporate the essential facts from other portions of the Complaint.

Finally, the Plaintiff does not plead particular facts demonstrating that he could have been reasonably accommodated in light of the work restrictions he identifies in paragraphs 13 to 18. In order to satisfy the requirement of particularity, the Plaintiff must allege facts demonstrating the manner in which his physical disability could be reasonably accommodated in his position in the Grounds Maintenance Department.

Demurrer is sustained with 15 days leave to amend.

5. Demurrer to Fifth Cause of Action – FEHA Claim – Failure to Prevent Discrimination and Harassment

The Defendant argues that there are no allegations that identify any actual discrimination. California holds that there is no logic to permit an employee to sue an employer for not preventing discrimination when no discrimination occurred. Trujillo v. North County Transit Dist. (1998) 63 Cal. App. 4th 280, 289. Accordingly, in order to bring a claim based on the failure to prevent discrimination, the Plaintiff must plead facts demonstrating that actual discrimination occurred.

A review of the pleadings reveals no particular facts identifying any actual discrimination. Instead, the Plaintiff pleads conclusions bare of any supporting facts. For example, in paragraph 61 the Plaintiff alleges that the Defendant failed to take all reasonable steps necessary to prevent or stop discrimination and harassment. In paragraph 63, the Plaintiff alleges that the Defendants’ “discriminatory conduct” toward the Plaintiff caused damages. However, there are no particular facts identifying the “discriminatory conduct.” This is insufficient.

Accordingly, there are also grounds for a demurrer for the failure to state sufficient facts. Since this is the original complaint, the Court grants the Plaintiff 15 days leave to amend.

6. Demurrer to Sixth Cause of Action – Violation of California Family Rights Act

The Defendant argues that this cause of action lacks sufficient facts. This cause of action is based on Government Code section 12945.2(a)(1), which makes it unlawful for an employer to discharge or discrimination against any individual because of his or her exercise of the right to family care and medical leave. This ensures that an employee who takes family care and medical leave will not suffer a loss of job security or other adverse employment actions. Neisendorf v. Levi Strauss & Co. (2006) 143 Cal. App. 4th 509, 517.

The Plaintiff’s cause of action contains the same defects identified above. The Plaintiff repeats, in a conclusory manner, essential elements without any particular, supporting facts. For example, in paragraph 75, the Plaintiff alleges the conclusion “That Plaintiff was harmed.” There are no particular facts identifying the manner in which he was harmed.

Further, in paragraph 74, the Plaintiff alleges that the Defendants refused to grant or interfered with the Plaintiff’s request for medical leave and refused to return the Plaintiff to the same or comparable job when his medical leave ended. However, as noted above, the Plaintiff alleges facts in paragraphs 13 to 18 that indicate that he had work restrictions on his ability to lift, pull, and push. The Plaintiff alleges no particular facts demonstrating that he was qualified to return to his position in light of these work restrictions. This is insufficient.

Accordingly, there are also grounds for a demurrer for the failure to state sufficient facts. Since this is the original complaint, the Court grants the Plaintiff 15 days leave to amend.

7. Demurrer to Seventh Cause of Action – FEHA Claim – Retaliation

The Defendant argues that the Plaintiff has not pleaded sufficient facts. In order to plead a cause of action for retaliation under the FEHA, a plaintiff must allege the following:

1) the plaintiff engaged in a “protected activity,”
2) the defendant subjected the plaintiff to an adverse employment action, and
3) a causal link existed between the protected activity and the defendant’s action.
Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal. 4th 1028, 1042.

Again, the particular facts are not in the cause of action. The Plaintiff pleads conclusions in his cause of action and then attempts to use incorporation to plead the supporting facts. For example, the Plaintiff argues on page 12 of his opposition that the Plaintiff pleaded facts indicating that he engaged in a protected activity in paragraphs 12 to 15 and 68 to 76. However, these are not within the seventh cause of action for retaliation. As noted above, this is an improper use of incorporation because the Plaintiff is authorized to incorporate facts for informational purposes and not to plead the essential elements of his claim.

Accordingly, there are also grounds for a demurrer for the failure to state sufficient facts. Since this is the original complaint, the Court grants the Plaintiff 15 days leave to amend.

8. Demurrer to Eighth Cause of Action – Wrongful Termination in Violation of Public Policy

The Defendant argues that the Plaintiff has not pleaded sufficient facts to state a non-FEHA claim for wrongful termination because he did not identify any statute that creates liability. The Defendant’s argument is based on requirements to bring a claim against a public entity.

The Government Claims Act, enacted at Government Code sections 810 to 998.3, establishes the limits of common law liability for public entities. Section 815 states that, except as otherwise provided by statute, a public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person. The Legislative Committee Comment to section 815 states: “This section abolishes all common law or judicially declared forms of liability for public entities, except for such liability as may be required by the state or federal constitution, e.g., inverse condemnation. …” Miklosy v. Regents of University of California (2008) 44 Cal. 4th 876, 899. Case law interpreting section 815 finds that it abolishes common law tort liability for public entities. Id.

Accordingly, in order to state a cause of action for government tort liability, every fact essential to the existence of statutory liability must be pleaded with particularity, including the existence of a statutory duty. Zuniga v. Housing Authority (1995) 41 Cal. App. 4th 82, 96. Since the duty of a public entity can only be created by statute, the statute claimed to establish the duty must be identified. Id.

Accordingly, a cause of action for wrongful
discharge in violation of public policy, i.e., a Tameny cause of action, is a common law, judicially created tort and not authorized by statute. Miklosy v. Regents of University of California (2008) 44 Cal. 4th 876, 899-900. Section 815 bars Tameny actions against public entities. Id.

This indicates that the Plaintiff cannot bring a common law claim for wrongful termination in violation of public policy. Instead, the Plaintiff must identify a statutory basis for the wrongful termination and plead the particular facts needed to state the claim. A review of the Plaintiff’s eighth cause of action reveals it lacks this particularity.

The Plaintiff alleges in paragraph 87 that the Plaintiff was wrongfully discharged for reasons that violate public policy, Government Code section 12940, Government Code section 12945.2, and Article I, section 8 of the California Constitution. The Plaintiff did not plead any particular facts to support this conclusion. This is insufficient.

Accordingly, there are also grounds for a demurrer for the failure to state sufficient facts. Since this is the original complaint, the Court grants the Plaintiff 15 days leave to amend.

9. Motion to Strike

The Defendant requests that the Court strike the claim for punitive damages because punitive damages may not be awarded against a public entity. In light of the recommendation to sustain the demurrers to each cause of action, there are no claims directed at the Defendant. Accordingly, its motion to strike is taken off calendar as moot.

However, the Court concludes that the Defendant’s motion is based on an accurate statement of law. Government Code section 818 expressly states that a public entity is not liable for punitive damages. See City of Glendale v. Superior Court (2002) 95 Cal. App. 4th 1266, 1271 (“The Government Code bars all punitive damage awards against public entities).