Case Number: BC712696 Hearing Date: October 01, 2018 Dept: 78
Superior Court of California
County of Los Angeles
Department 78
MAINOR BURGOS;
Plaintiffs,
vs.
LOS ANGELES COUNTY department of public health, et al.;
Defendants.
Case No.:
BC712696
Hearing Date:
October 1, 2018
RULING RE:
Defendant County of Los Angeles’s Demurrer to the Complaint
Defendant County of Los Angeles’s Demurrer to the Complaint is SUSTAINED, with leave to amend, as to the First Cause of Action, and OVERRULED as to all others.
Factual Background
This is an action for workplace discrimination and harassment. The Complaint alleges as follows. Plaintiff Mainor Burgos (“Burgos”) works for Defendant Los Angeles County Department of Public Health (“County”). (Complaint ¶ 7.) Beginning in 2013 or 2014, Burgos reported illegal, offensive, and racist comments by his supervisor. (Complaint ¶ 8.) Burgos was retaliated against for reporting these comments, and suffered harassment, disciplinary actions, and being denied promotions. (Complaint ¶ 9.) This retaliation caused Burgos such emotional distress that he developed an anxiety disorder, and his employer regarded him has disabled. (Complaint ¶ 10.) As an accommodation, Burgos requested a transfer from under his supervisor’s control, but was denied such a request. (Complaint ¶ 12.) The harassment and retaliation continues today. (Complaint ¶ 13.)
procedural history
Burgos filed a Complaint on July 3, 2018, alleging seven causes of action:
1. Workplace Disparate Treatment
2. Hostile Work Harassment
3. Failure to Accommodate Disability
4. Failure re: Interactive Process
5. FEHA Retaliation
6. Failure to Prevent
7. Whistleblower Retaliation
County filed the present Demurrer on August 29, 2018, and served it by mail that same day. No opposition has been filed.
Discussion
I. DEMURRER
A demurrer should be sustained only where the defects appear on the face of the pleading or are judicially noticed. (Code Civ. Pro., §§ 430.30, et seq.) A court should sustain a demurrer if a complaint does not allege facts that are legally sufficient to constitute a cause of action. (See id. § 430.10, subd. (e).) As the Supreme Court held in Blank v. Kirwan (1985) Cal.3d 311: “We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. . . . Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.” (Id. at p. 318; see also Hahn. v. Mirda (2007) 147 Cal.App.4th 740, 747 (“A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.”))
“In determining whether the complaint is sufficient as against the demurrer … if on consideration of all the facts stated it appears the plaintiff is entitled to any relief at the hands of the court against the defendants the complaint will be held good although the facts may not be clearly stated.” (Gressley v. Williams (1961) 193 Cal.App.2d 636, 639.)
“A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of Cal., Inc. (1993) 14 Cal.App.4th 612, 616.) Such demurrers “are disfavored, and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.” (Mahan v. Charles W. Chan Insurance Agency, Inc. (2017) 14 Cal.App.5th 841, 848.)
A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment. (Schifando v. City of Los Angeles, supra, 31 Cal.4th at p. 1081.) The demurrer also may be sustained without leave to amend where the nature of the defects and previous unsuccessful attempts to plead render it probable plaintiff cannot state a cause of action. (Krawitz v. Rusch (1989) 209 Cal.App.3d 957, 967.)
A. FEHA DISCRIMINATION — FIRST CAUSE OF ACTION
County argues that Burgos has not adequately alleged a claim for discrimination (pleaded in the Complaint as “disparate treatment”) because (1) he cannot base his disability claim on a supervisor’s “standard oversight”; and (2) he does not allege any particular adverse employment action. (Demurrer at pp. 5–6.)
To prove an employment discrimination claim, “[t]he plaintiff must generally provide evidence that: (1) he was a member of a protected class, (2) he 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 motive.” (Dinslage v. City and County of San Francisco (2016) 5 Cal.App.4th 368, 378.)
It is not categorically correct to state that Burgos may not plead a disability claim in part based on particular mental sensitivity to a supervisor’s harassment. The authority that County cites to the contrary states that a plaintiff cannot claim a disability “because of anxiety and stress related to their [supervisor’s] standard oversight of plaintiff’s job performance,” which would not apply when one’s supervisor ceases offering “standard” oversight and instead crosses into harassment. (Higgins-Williams v. Sutter Medical Foundation (2015) 237 Cal.App.4th 78, 84[JRD1] .)
However, the court agrees that Burgos has not adequately pled a claim for discrimination because he has not pled any circumstances evidencing discriminatory motive. Burgos’s claim rests upon disability discrimination, based on his anxiety. (Complaint ¶ 18.) However, the only adverse employment actions that Burgos alleges occur as alleged instances of retaliation, which in turn develop Burgos’s anxiety. (Complaint ¶ 9.) Burgos alleges no discrimination that is actually based on the disability he alleges.
Accordingly, the Demurrer to the First Cause of Action is SUSTAINED, with leave to amend.
B. SEXUAL HARASSMENT — SECOND CAUSE OF ACTION
County argues that the conduct Burgos complains of consists of mere legal conclusions, rather than facts constituting harassment. (Demurrer at p. 7.) The Complaint, however, states that Burgos’s supervisor engaged in hostile actions “that were physically threatening or intimidating and/or actions that put plaintiff in imminent fear of battery and fear for his physical safety.” (Complaint ¶ 9.) The Court regards this allegation as sufficiently specific.
The Demurrer to the Second Cause of Action is OVERRULED.
C. FAILURE TO ACCOMMODATE, INTERACTIVE PROCESS, FAILURE TO PREVENT — THIRD, FOURTH AND SIXTH CAUSES OF ACTION
County argues that the Third, Fourth, and Sixth Causes of Action fail because the Complaint does not allege that County was aware of Burgos’s disability. (Demurrer at pp. 7–8.) This is incorrect, as the Complaint alleges that “managerial and supervisory personnel working for defendant [County] . . . perceived plaintiff as disabled.” (Complaint ¶ 10.)
County also argues that Burgos has not pled that what accommodations could have been provided. (Demurrer at p. 8.) This too is incorrect. The Complaint alleges that the County could have removed Burgos from the hostile environment created by Hector, including by, for instance, a transfer. (Complaint ¶ 11.)
The Demurrer to the Third, Fourth, and Sixth Causes of Action are OVERRULED.
D. FEHA RETALIATION AND WHISTLEBLOWER RETALIATION — FIFTH AND SEVENTH CAUSES OF ACTION
County argues that Burgos cannot satisfy a claim for either FEHA or whistleblower retaliation because he does not allege that he engaged in protected activity. (Demurrer at p. 9.) This is incorrect. The Complaint alleges precisely the protected activity that Burgos claims: that he complained about his supervisor’s racist and offensive comments. (Complaint ¶ 8.)
The Demurrer to the Fifth and Seventh Causes of Action are OVERRULED.
Plaintiff to give notice.
DATED: October 1, 2018 ________________________________
Hon. Robert S. Draper
Judge of the Superior Court