Demurrer
concern must be determined by [the expression's] content, form, and context ... as revealed by the whole record.” Ibid. (citations and quotations omitted). “[S]exual harassment and violence against women is [recognized to be] of pressing public concern.” Id. at 1021.
The Court assumes, arguendo, that the alleged defamation in Complaint paragraph 11 involves an issue of public concern. Accordingly, the court also assumes that proof of actual malice is necessary to recover presumed or punitive damages.
At bar, Plaintiff can establish a prima facie case of prevailing. Vickers Decl. ¶¶ 2,4. According to Plaintiff, “[o]n November 5, 2024, Defendant and [he] engaged in sexual relations. The encounter was planned and consensual. No rape occurred. Defendant’s allegations that a rape occurred are false. Over the next few days, the Defendant sent multiple messages inferring the encounter was consensual.” Complaint ¶ 2. Defendant further declared that, “on the morning of November 6, 2024, Defendant reported rape and abuse allegations to law enforcement.
She declined to press charges the next day, November 7, 2024 and no further contact or investigation occurred thereafter. Defendant nevertheless continued to repeat the accusation to third parties after declining to pursue criminal charges.” Id. ¶ 4. Lastly, Plaintiff declares: “A[s] a result of the Defendant’s accusations ..., and subsequent public dissemination, I have experienced humiliation, anxiety, emotional distress, and damage to my personal and professional reputation.” Id. ¶ 27. In short, Plaintiff has presented evidence that Defendant made per se defamatory statements to third parties about Plaintiff allegedly raping his ex-wife, Ms.
Couch, a crime, that the statements were false, that Defendant impliedly had knowledge of its falsity, and that the statement had a natural tendency to injure. Moreover, Defendant has not defeated all of Plaintiff’s evidence regarding defamation as a matter of law.2
The same can be said for the remaining claims. “The elements of a cause of action for IIED are as follows: (1) defendant engaged in extreme and outrageous conduct (conduct so extreme as to exceed all bounds of decency in a civilized community) with the intent to cause, or with reckless disregard to the probability of causing, emotional distress; and (2) as a result, plaintiff suffered extreme or severe emotional distress.” Berry v. Frazier (2023) 90 Cal.App.5th 1258, 1273, CACA 1600. “The elements of a cause of action for negligence are duty, breach, causation, and damages.”
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In summary, Defendant’s motion is denied.
5. CU0002568 Gabrielle Christakes vs. City of Nevada City
Defendant The City of Nevada City’s demurrer to Plaintiff Gabrielle Christakes’ First Amended Complaint is sustained as to the second cause of action. Plaintiff is granted leave to amend within ten (10) days of this Court’s order.
2 Assuming, arguendo, that Plaintiff’s case solely relates to a private figure and matter, Plaintiff has also presented sufficient evidence to establish a prima facie case that has not been defeated as a matter of law. 10
Legal Standard
On demurrer, a court's function is limited to testing the legal sufficiency of the complaint. Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 113-114. In determining a demurrer, the court assumes the truth of the facts alleged in the complaint and the reasonable inferences that may be drawn from those facts. Miklosy v. Regents of the Univ. of Cal. (2008) 44 Cal.4th 876, 883. A court must determine if the factual allegations of the complaint are adequate to state a cause of action under any legal theory. Barquis v. Merchants Collection Assn. (1972) 7 Cal.3d 94, 103.
Contentions, deductions and conclusions of law, however, are not presumed as true. Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967. A plaintiff is not required to plead evidentiary facts supporting the allegation of ultimate facts; the pleading is adequate if it apprises the defendant of the factual basis for the plaintiff's claim. Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6. A demurrer is not the appropriate procedure for determining the truth of disputed facts. Fremont Indemnity Co., 148 Cal.App.4th at 113-114.
“If a complaint does not state a cause of action, but there is a reasonable possibility that the defect can be cured by amendment, leave to amend must be granted.” Milligan v. Golden Gate Bridge Highway & Transportation Dist. (2004) 120 Cal.App.4th 1, 6.
Second Cause of Action: Age Harassment
Defendant asserts the second cause of action for age harassment in the First Amended Complaint (FAC) fails because Plaintiff fails to sufficiently state a claim. The Court agrees.
FEHA prohibits harassment of an employee including harassment based on age. Gov. Code § 12940(j)(1). To articulate a prima facie case of harassment under FEHA, a plaintiff must show: (1) she was a member of a protected class; (2) she was subjected to unwelcome harassment; (3) the harassment was based on the plaintiff’s membership in a protected class; (4) the harassment unreasonably interfered with her work performance by creating an intimidating, hostile, or offensive work environment; and (5) the defendant is liable for the harassment (i.e., that a supervisor engaged in conduct or knew/should have known of the same and failed to take immediate/appropriate corrective action). Martin v. Board of Trustees of California State University (2023) 97 Cal.App.5th 149, 170, CACI 2521A, CACI 2523.
As a starting point, any harassment must be “based on the plaintiff’s membership in a protected class.” Ibid. Thus, a plaintiff alleging harassment because of age must articulate how a defendant’s conduct was harassment based on that protected characteristic. See Martin v. Board of Trustees of California State University (2023) 97 Cal.App.5th 149, 172 (noting for purposes of summary judgment, that “[employee] Martin ... fails to articulate how [employer] CSU's response to the Sundial articles was harassment based on Martin's protected characteristics.”)
“[H]arassment focuses on situations in which the social environment of the workplace becomes intolerable because the harassment (whether verbal, physical, or visual) communicates an offensive message to the harassed employee.” Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 11
706. Thus “‘the exercise of personnel management authority properly delegated by an employer to a supervisory employee might result in discrimination, but not in harassment.’” Ibid. A harassing act “consists of conduct outside the scope of necessary job performance, conduct presumably engaged in for personal gratification, because of meanness or bigotry, or for other personal motives.” Reno v. Baird (1998) 18 Cal.4th 640, 646. While “[a] single incident of harassing conduct is sufficient to create a triable issue regarding the existence of a hostile work environment,” (Gov.
Code, § 12923(b)), “[t]o prevail on a hostile work environment claim under California's FEHA, an employee must show that the harassing conduct was ‘severe enough or sufficiently pervasive to alter the conditions of employment and create a work environment that qualifies as hostile or abusive to employees because of their [disability].’” Hughes v. Pair (2009) 46 Cal.4th 1035, 1043 (internal citations omitted).
“The words ‘severe’ and ‘pervasive’ have no peculiar meanings under the law. The adjective “severe” is defined as “strongly critical and condemnatory” or “inflicting pain or distress.” The verb ‘pervade” is defined as “to become diffused throughout every part of.’” Caldera v. Department of Corrections and Rehabilitation (2018) 25 Cal.App.5th 31, 38 (internal citations omitted). The totality of the circumstances are considered when determining whether conduct is severe or pervasive such as “[¶] (a) The nature of the conduct; [¶] (b) How often, and over what period of time, the conduct occurred; [¶] (c) The circumstances under which the conduct occurred; [¶] (d) Whether the conduct was physically threatening or humiliating; [¶] (e) The extent to which the conduct unreasonably interfered with an employee’s work performance.’ CACI No. 2524.” Id. at 38–39 (parentheses omitted).
Where a plaintiff’s “claims for harassment and retaliation are founded on the provisions of FEHA ... [courts] apply the general rule that facts in support of each of the requirements of a statute upon which a cause of action is based must be specifically pled.” Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 604
At bar, the FAC alleges, in pertinent part:
Plaintiff is a woman over 40 years of age who was placed on a “groundless and baseless” Performance Improvement Plan (PIP) from March 13, 2025 to June 12, 2025. FAC, ¶¶ 8, 10.
During the PIP time period, Assistant City Manager Lon Peterson (“Peterson’) and Grayson created a hostile and retaliatory work environment for Plaintiff through intimidation and shunning. Assistant City Manager Lon Peterson moved his desk into her office work area and placed it directly across from hers. Peterson insisted on having remote meetings with Plaintiff even though they were both in the same room.
During the PIP time period, Plaintiff was in fear of losing her job and was frequently upset and in tears at work. Grayson largely ignored her, and on more than one occasion, when she questioned him about a procedure, he would shout words to the effect of “No! That’s not how we do it!” without offering any help. During the PIP period, Finance Manager Brittnie Neundorfer scrutinized Plaintiff’s every move, actively looking for problems.
FAC, ¶¶ 14-15. 12
On April 25, 2025, Plaintiff “overheard two City officials talking about ‘getting’ a younger female to work for Nevada City, using the first name of a younger woman...[and] laughed” off questions and “tried to minimize their comments.” FAC, ¶ 17.
On the same date, the City Manager asked Plaintiff how much longer she was planning on working and whether she liked her job; “Plaintiff responded with a question using a blended last name of two older workers who had been pushed out of employment with NEVADA CITY, asking if he was trying to do the same thing to her.” FAC, ¶ 18.
Plaintiff was placed on paid administrative leave pending an investigation on July 7, 2025. FAC, ¶ 19. While on leave, an interim employee under the age of 40 was hired to assume many of Plaintiff’s duties. FAC, ¶ 20. Plaintiff was 62 years old at the time of her termination. FAC, ¶ 28.
The demurrer is well taken. While FAC paragraphs 8, 14-15 generally allege there was a hostile/retaliatory work environment during Plaintiff’s PIP and includes allegations of the same, the FAC fails to meaningfully allege or articulate how Defendant’s alleged harassment was based on the protected characteristic of age, how it was severe or pervasive harassing conduct, and how it unreasonably interfered with her work performance. Moreover, there is no allegation how Defendant is liable for purported conduct of the Finance Manager, i.e., her supervisory status or knowledge of her conduct by supervisors, etc.
To the extent that Plaintiff relies on the allegations of FAC paragraph 17, the FAC does not: identify the speakers, allege that the statement concerned Plaintiff or her position, allege how the remark was severe/pervasive harassing conduct, allege how the remark unreasonably interfered with her work performance, allege how Defendant is liable for the comments of these individuals, or otherwise connect the remark to other alleged hostile conduct.
Finally, to the extent Plaintiff relies on the allegations of FAC paragraph 18, Plaintiff fails to allege how the remark was severe/pervasive harassing conduct, unreasonably interfered with her work performance, or otherwise connect the remark to other alleged hostile conduct.
The demurrer as to the second cause of action is sustained.
Plaintiff asserts, without detail, that any deficiency may be cured by amendment, but makes no showing of how cure is reasonably possible. This notwithstanding, the Court will allow amendment given the liberality generally associated with amendment of pleadings.
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