Castillo v. City of Los Angeles

Filed 3/13/07 Castillo v. City of Los Angeles CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEAL from a judgment of the Superior Court of Los Angeles County.

William F. Fahey, Judge. Reversed and remanded with instructions.

Carlos A. Lloreda, Jr. for Plaintiff and Appellant.

Rockhard J. Delgadillo, City Attorney, Claudia McGhee Henry, Assistant City Attorney and Kim Rodgers Westhoff, Deputy City Attorney, for Defendant and Respondent.

The demurrer of the City of Los Angeles (City) to Liliana Castillos operative second amended complaint (SAC) was sustained without leave to amend. We treat this appeal as from the order of dismissal.[1]

Castillo contends her employer retaliated against her because she filed complaints of sex discrimination with the Department of Fair Employment and Housing (DFEH). The City relies on judicial admissions in her initial and first amended complaints, which stated in part that the conduct of her supervisor was for personal, non-work-related reasons. Concluding that in the context of these pleadings there was no judicial admission and that appellant should be given leave to amend to plead with specificity, we shall reverse the judgment of dismissal and remand for that purpose.

PROCEDURAL HISTORY

Complaint

The initial complaint seeking damages for retaliation in the workplace was filed April 11, 2005. Appellant sued the City, the Los Angeles Convention Center, and the Los Angeles Convention Center Department. She alleged she was first hired in 1987 and had worked continuously for the City since then.

According to appellant, she was subjected to sex discrimination in the workplace, including denial of a promotion to fulltime event attendant, and that the claims for sex discrimination were in part predicated upon the course and conduct of [her] supervisor, Leopoldo Hernandez, an employee/agent for Defendants. In retaliation for appellants challenge of the hiring/promotional process and bringing claims relative to the discriminatory process, Hernandez allegedly wrongfully and continuously from May through September 2004 harass[ed appellant] . . .  by aggressively confronting [her] with personal matters that [were not] work related. She alleged filing a timely charge of sex discrimination with the DFEH and receipt of a right to sue notice, but the dates of those events are not alleged and substantiating documents, often attached to such complaints, are not attached to the initial complaint.

The City successfully demurred. Its first point was that the defendants other than the City were improperly sued.[2] The City also alleged inter alia that appellant failed to plead any specific facts wherefrom a conclusion of retaliation can be drawn. Regarding the non-work related personal matters, the City argued it is unclear from plaintiffs allegations whether her retaliation claim is based upon conduct that occurred within the workplace. In addition, she failed to identify a causal connection between her protected activity [in June 2002] and the alleged retaliatory conduct between May 2004 and September 2004.[3]

Appellants response to the demurrer included the argument that simply because appellant and Hernandez live near each other and had neighborly disputes does not make this retaliation claim unclear as to warrant a demuurer in that appellant stated unambiguously that the conduct supporting the retaliation claim arose from the workplace,[4]her challenges of the hiring/promoting practices. She added that [w]hether this behavior [Hernandezs aggressive and further discriminatory treatment at the workplace] carried over to confrontations between the two outside of the workplace is irrelevant to the workplace retaliation claim.

First amended complaint

Appellants first amended complaint (FAC) was also for retaliation in the workplace. She added at the workplace site in the allegation that Hernandez, in retaliation of her complaining about the selection process, did wrongfully and continuously from May through September 2004, at the workplace site, harass [her] in retaliation for those previous claims regarding unfair hiring/promotion of employees to Fulltime Event Attendant by loudly and aggressively confronting [her] with personal matters that were non-work related issues. (Bolding in original.) Furthermore, she alleged his loud and aggressive conduct denied her a peaceful and satisfactory work environment and such behavior stemming as a result of private, non-work related issues . . .  constitutes a causal connection between the Defendants actions and the Plaintiffs damages. Finally, she alleged that the City in violation of Government Code section 12940 failed to take reasonable steps necessary to prevent the retaliatory harassment by Hernandez.

The City demurred based on appellants failure to plead an adverse employment action and a causal connection between a protected activity and an adverse employment action. The City asked the court to take judicial notice of various DFEH and Equal Employment Opportunity Commission (EEOC) records pertaining to appellants claims, as well as a dismissal with prejudice entered in August 2004 in a lawsuit by appellant against the City. The records are used to support the Citys contention that the adverse action, if any, did not follow within a relatively short time after appellant engaged in protected activities (see Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 614), thus not showing a causal connection, and that her allegations and complaints are too vague to support a cause of action. The City also relied on statements in the FAC regarding harassment based on non-work related personal issues.

Appellants counsel did not appear, and the trial court sustained the demurrer with leave to amend.

Second amended complaint

Appellant filed her operative second amended complaint (SAC) on September 21, 2005. Allegations regarding anything non-work related were omitted. Instead, appellant alleged the harassment was in direct and complete retaliation for those previous specific claims lodged with the DFEH regarding the unfair hiring/promotion of employees to Fulltime Event Attendant. Moreover, paragraph 19 as amended alleged: The nature of the harassment and retaliatory activity consisted of loud and aggressive confrontations. An example of these actions is illustrated by an encounter where Defendants employee agent told Plaintiff directly, during a work related interaction, at the work site and in their native tongue of Spanish that if you are going to mess with me, you had better kill me, because I can step on you like a cockroach. She reiterated that the retaliatory actions were completely based upon the work-related issue of Plaintiffs complaint of sex discrimination that was lodged to superiors against . . .  Hernandez. Moreover, had she not filed such a discrimination claim, none of Leopoldo Hernandezs retaliatory harassment would have taken place . . . . In addition, retaliatory attacks such as the step on you like a cockroach comment occurred regularly, meaning on a weekly basis. Hernandezs threat appellant must not mess with him, is in direct relation to the complaint she filed against him.

The Citys demurrer was based on appellants failure to plead a nexus between the DFEH complaint filed in January 2003[5]and the alleged confrontations over a year later in May and September 2004. In addition, the City argued that the situs of the alleged harassment cannot serve as the exclusive basis for the retaliation claim.

Appellants counsel chose to be in another courthouse and did not appear for the hearing on the demurrer to the SAC.[6] He sent someone to appear for him. That attorney was not prepared to address the courts question regarding conflicts between the SAC and earlier complaints that the court surmised alleged the conduct was the result of private non-work related issues, an allegation deleted from the SAC.

The demurrer was sustained without leave to amend and the case was dismissed with prejudice. The court gave as its reasons that plaintiff has judicially admitted that her claim is not based upon any work-related issue but instead is based upon a personal and private dispute between herself and defendants employee, Mr. Hernandez See FAC, paragraph 18 (The loud and aggressive behavior of Defendants employee/agent, Leopoldo Hernandez, stemming as a result of private, non-work related issues with plaintiff, Lilians Castillo, constitutes a causal connection between the defendants actions and the plaintiffs damages.) While plaintiffs SAC deletes this allegation, this Court is entitled to take judicial notice of plaintiffs prior contrary allegations. See Vance v. Villa Park Mobilehome Estates, 36 Cal.App.4th 698, 709 (1995). Having admitted that the cause of the conduct at issue is not work-related, plaintiff is not entitled to further leave to amend.

DISCUSSION

1. Standard of review.

The standard of review from orders of dismissal following the sustaining of demurrers is well established: [A]n appellate court treats the demurrer as admitting all material facts properly pled and matters subject to judicial notice, but not deductions, contentions, or conclusions of law or fact. (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126 [119 Cal.Rptr.2d 709, 45 P.3d 1171].) We also read the complaint as a whole and its parts in context, giving it a reasonable interpretation. (Ibid.) When a demurrer is sustained, we determine if the complaint states facts sufficient to constitute a cause of action. When it is sustained without leave to amend, we decide if there is a reasonable possibility that the defect can be cured by amendment. If so, the trial court abused its discretion, and the judgment is reversed. The plaintiff bears the burden of proving the reasonable possibility of cure. (Ibid.)(Cadlo v. Owens-Illinois, Inc. (2004) 125 Cal.App.4th 513, 519.) An appellate court must affirm if the trial courts decision to sustain the demurrer was correct on any theory. (Hendy v. Losse (1991) 54 Cal.3d 723, 742[ ].) (Kennedy v. Baxter Healthcare Corp. (1996) 43 Cal.App.4th 799, 808; accordHightower v. Roman Catholic Bishop of Sacramento (2006) 142 Cal.App.4th 759, 764-767.)
On appeal from an order of dismissal after an order sustaining a demurrer, our standard of review is de novo, i.e., we exercise our independent judgment about whether the complaint states a cause of action as a matter of law. [Citation.] (Montclair Parkowners Assn v. City of Montclair (1999) 76 Cal.App.4th 784, 790; accord McCall v. PacifiCare of Cal., Inc. (2001) 25 Cal.4th 412, 415.)
2. The trial court erred in sustaining the demurrer without leave to amend.

a. Judicial admission.

If the cited allegations constituted a judicial admission, no amendment would have cured the defect and the demurrer would have been properly sustained without leave to amend. We conclude that in the context of these pleadings, there was no judicial admission, although some of the language in the initial complaint and FAC could be read as construed by the City.

The complaints are hardly a model of pleading clarity. The amended complaints seem to stick new allegations into already confusing paragraphs. Nevertheless, in our view appellant did not unambiguously allege that Hernandezs behavior was caused by non-work and only non-work issues. Rather, in paragraph 17 of the SAC, immediately prior to the paragraph on which the trial court relied for a judicial admission, appellant alleged that she was harassed at the workplace site in retaliation for those previous claims regarding unfair hiring/promotion of employees to Fulltime Event Attendant by loudly and aggressively confronting [appellant] with personal matters that were non-work related issues. (Italics added.)

We read paragraph 17 to mean that the harassment was in retaliation for appellants claims and that Hernandez used non-work related issues to harass her. Paragraph 17 conflicts with the following portion of paragraph 18 on which the trial court relied in finding a judicial admission.: The loud and aggressive behavior of . . .  Hernandez, stemming as a result of private non-work related issues with [appellant] constitutes a causal connection between Defendants actions and [appellants] damages. (Italics added.)

Indeed, the principal change from Paragraph 16 in the initial complaint to Paragraph 17 in the FAC was to add at the workplace site to describe where the harassment took place. This amendment was probably in response to the Citys argument regarding the non-work related personal matters, that it is unclear from plaintiffs allegations whether her retaliation claim is based upon conduct that occurred within the workplace. The problem is that appellant then also added the language quoted above, that Hernandezs behavior stemmed from private non-work related issues. Hernandez clarified the apparent conflict in these allegations in her SAC by asserting that the retaliatory actions were completely based upon the work-related issue of appellants complaint of sexual discrimination lodged to superiors against Hernandez.

b. Nexus and causation.

The other ground raised by the Citys demurrer was failure to plead a nexus between the filing of appellants administrative complaint of discrimination and the alleged confrontations with Hernandez from May through September 2004. The City argued that the timing of the alleged events is too remote to infer causal connection and that there is no evidence Hernandez had knowledge of the January 2003 DFEH filing.

As explained in Bell v. Clackamas County (9th Cir. 2003) 341 F.3d 858, 865 -866,[7]Temporal proximity between protected activity and an adverse employment action can by itself constitute sufficient circumstantial evidence of retaliation in some cases. See Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1065(9th Cir.2002) ([C]ausation can be inferred from timing alone where an adverse employment action follows on the heels of protected activity.); see also Winarto v. Toshiba Am. Elecs. Components, Inc., 274 F.3d 1276, 1287 n. 10 (9th Cir.2001) (concluding that plaintiff's complaints, which closely preceded reduction in her performance review scores, supported a reasonable inference that defendant acted with a retaliatory motive); Yartzoff v. Thomas, 809 F.2d 1371, 1376 (9th Cir.1987) (sufficient evidence of causation existed where adverse actions occurred less than three months after complaint was filed, two weeks after charge first investigated, and less than two months after investigation ended); cf. Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273-74, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001) (holding that timing alone did not support claim of retaliation because almost two years had passed from when the defendant must have known about plaintiff's protected activity before imposing alleged adverse employment action). (See Taylor v. City of Los Angeles Dept. of Water & Power (2006) 144 Cal.App.4th 1216, 1235.)

In the case at bench, there was a long period of time between appellants filing her claim and Hernandezs alleged retaliation. But if Hernandez was informed of the filing shortly before his alleged threats or otherwise can be shown to have been influenced by the filing, the temporal proximity or other grounds may exist to demonstrate a causative relationship. Appellants SAC hints at such facts. She should be given an opportunity to develop those facts by amendment.

Similarly, she should be given an opportunity to allege specific facts that constitute an adverse employment action, required for a retaliation cause of action. (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1052.)[8] Our Supreme Court in Yanowitz, id. at page 1054, footnote 13, gave examples of employment actions that did not measure up: Torres v. Pisano [2nd. Cir. 1997] 116 F.3d [625] 640 (fact that acts left employee feeling frightened and humiliated failed to establish that employee suffered an adverse employment action); Ruggieri v. Harrington (E.D.N.Y.2001) 146 F.Supp.2d 202, 216 (circumstance that plaintiff was embarrassed by employers actions inadequate to demonstrate adverse employment action); Flaherty v. Gas Research Inst. (7th Cir. 1994) 31 F.3d 451, 457 (plaintiffs bruised ego as a result of transfer that plaintiff found personally humiliating insufficient to constitute adverse employment action); Welsh v. Derwinski (1st Cir. 1994) 14 F.3d 85, 86 (recognizing that not every unpleasant matter . . . creates a cause of action under title VII); Brooks v. City of San Mateo (9th Cir. 2000) 229 F.3d 917, 929 ([b]ecause an employer cannot force employees to socialize with one another, ostracism suffered at the hands of coworkers cannot constitute an adverse employment action); Strother v. Southern Cal. Permanente Medical Group (9th Cir. 1996) 79 F.3d 859, 869 (mere ostracism in the workplace is insufficient to establish an adverse employment decision).

The sole example of harassment and retaliatory activity given in the SAC was that Hernandez threatened appellant in Spanish that if you are going to mess with me, you had better kill me, because I can step on you like a cockroach. Moreover, Such attacks occurred regularly, meaning on a weekly basis. It is unclear what other loud and aggressive confrontations occurred, whether others were present, and what effect if any the harassment had on appellants status at work. Her supervisors alleged dramatic threats could be construed as threats on appellants wellbeing, if not her life, and clearly would not be beneficial to appellants work situation and would threaten to derail her career. Actions that threaten to derail an employees career are objectively adverse, and the evidence presented here creates a factual dispute that cannot be resolved at the summary judgment stage. (See Noviello v. City of Boston [(1stCir. 2005)] 398 F.3d 76 [analysis of effect of retaliatory conduct should include the relative ubiquity of the retaliatory conduct, its severity, its natural tendency to humiliate . . .  a reasonable person, and its capacity to interfere with the plaintiff's work performance.].) (Yanowitz v. L'Oreal USA, Inc., supra, 36 Cal.4th 1028, 1060.)

Insofar as we are reversing with directions to sustain the demurrer, but with leave to amend, it would be the better part of discretion for appellant to amend with specificity any adverse employment action she claims to have suffered.

DISPOSITION

The judgment of dismissal is reversed and the matter is remanded with instructions to allow appellant to amend her complaint. Each party is to bear its own costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

COOPER, P.J.

We concur:

RUBIN, J.

FLIER, J.

Publication Courtesy of San Diego County Legal Resource Directory.

Analysis and review provided by San Diego County Property line attorney.

[1] Although mentioning the judgment of dismissal, the notice of appeal states the appeal is from the November 18, 2005, order sustaining the demurrer without leave to amend. An order sustaining a demurrer is not appealable, but may be saved by deeming the order to include the judgment of dismissal. (Orange Unified School Dist. v. Rancho Santiago Community College Dist. (1997) 54 Cal.App.4th 750, 756, citing I.J.Weinrot & Son, Inc. v. Jackson (1985) 40 Cal.3d 327, 331, Hill v. City of Long Beach (1995) 33 Cal.App.4th 1684, 1695; and Nowlon v. Koram Ins. Center, Inc. (1991) 1 Cal.App.4th 1437, 1440-1441) We do so in the case at bench. The November 18 order also stated This case is dismissed with prejudice, and a judgment of dismissal was filed January 5, 2006.

[2] At the request of appellant at the hearing on the Citys demurrer, the Los Angeles Convention Center and the Los Angeles Convention Center Department were ordered dismissed.

[3] In its reply, the City added that specific facts must be plead both because the defendant is a public entity government by the California Tort Claims Act and because her retaliation claim was founded on the Fair Employment and Housing Act (FEHA).

[4] However, her papers also muddy any clarification by stating, The loud and aggressive behavior of [Hernandez], stemming as a result of private, non-work related issues with [appellant] constitutes a causal connection between the Defendants actions and the Plaintiffs damages.

[5] The City requested judicial notice of the charge of discrimination dated January 17, 2003, by appellant with the EEOC. That document made no reference to Hernandez so the City contends the court cannot rely on the filing as evidence Hernandez had knowledge of appellants administrative complaint.

[6] The court noted that appellants counsel had also not appeared for the hearing on the demurrer to the first amended complaint.

[7] Because of the similarity between state and federal employment discrimination laws, California courts look to pertinent federal precedent when applying our own statutes. (See, e.g., Mixon v. Fair Employment & Housing Com. (1987) 192 Cal.App.3d 1306, 1316 [237 Cal.Rptr. 884] ( Mixon ).) (Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 354.)

[8] The United States Supreme Court in Burlington Northern and Santa Fe Ry. Co. v. White (2006) 126 S.Ct. 2405, 2409, concluded regarding Title VII of the Civil Rights Act of 1964 that the anti-retaliation provision does not confine the actions and harms it forbids to those that are related to employment or occur at the workplace [and also concluded] that the provision covers those (and only those) employer actions that would have been materially adverse to a reasonable employee or job applicant. In the context of that case the question was whether the employers actions were harmful to the point that they could well dissuade a reasonable worker from making or supporting a charge of discrimination. In Taylor v. City of Los Angeles Dept. of Water and Power, supra, 144 Cal.App.4th 1216, 1234, Justice Zelon explains differences in elements required to prove retaliation as set forth in Yanowitz and by the United States Supreme Court in Burlington, supra.