DUARTE v. FONTANA UNIFIED SCHOOL DISTRICT

RJN Exhibit A is a complaint plaintiff filed against Defendant FUSD in a prior action that Plaintiff dismissed. In ruling on a demurrer, a Court may take judicial notice of admissions or inconsistent statements made by a plaintiff in earlier pleadings in the same lawsuit, in prior similar lawsuits that plaintiff had voluntarily dismissed, or in discovery documents, and may disregard conflicting factual allegations in the complaint. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.)

If the allegations in the complaint contradict or omits facts alleged in a plaintiff’s complaint in a prior case, the Court may take judicial notice of the earlier complaint and disregard inconsistent allegations, absent an explanation for the inconsistency. (Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 877; Colapinto v. County of Riverside (1991) 230 Cal.App.3d 147, 151-152.)

This is, in part, what FUSD seeks in requesting judicial notice of Plaintiff’s prior pleading and his attachment to the prior complaint, which is an FUSD “General Complaint Form” in which Plaintiff did not check off boxes for sexual harassment, sex, or gender, as a basis for the alleged conduct that Plaintiff was opposing. (Demurrer pp. 2-3; Reply pp. 4-6.) Plaintiff does not oppose Defendant FUSD’s request. Therefore, the Court grants FUSD’s request and take judicial notice of Plaintiff’s prior complaint, County of San Bernardino Case Number CIVSB2321929 (RJN Exh. A).

FUSD also requests judicial notice of portions of Plaintiff’s deposition testimony taken on February 4, 2025. (RJN Exh. B.) At Plaintiff’s deposition, he testified that he did not believe the male student in Vartanian’s car had any kind of other relationship with Vartanian outside of an athlete-coach relationship, including a sexual relationship. FUSD seeks to rely on portions of Plaintiff’s deposition testimony to assert that Plaintiff is making inconsistent statements in Plaintiff’s current complaint allegations.

In general, the Court may take judicial notice of Plaintiff’s discovery responses in an earlier action to demonstrate inconsistent statements with current allegations in support of an argument that the current allegations should be treated as a sham or disregarded. (Lockton v. O’Rourke (2010) 184 Cal.App.4th 1051, 1061.) However, there is a split in authority on the Court taking judicial notice of deposition testimony in a prior case. In Silguero v. Creteguard, Inc. (2010) 187 Cal.App.4th 60, 64, the Court did not consider deposition testimony where truthfulness or proper interpretation are disputed on demurrer. However, in Joslin v. H.A.S. Ins. Brokerage (1986) 184 Cal.App.3d 369, 375, on demurrer, the Court stated a trial court could accept the truth of facts stated in deposition to the extent they were not or could not be in dispute.

Again, Plaintiff does not object to FUSD’s request for judicial notice and does not dispute his statements at the February 4, 2025 deposition. Therefore, the Court grants FUSD’s RJN Exhibit B, and take judicial notice of Plaintiff’s deposition testimony taken on February 4, 2025.

Defendant’s Demurrer as to the First Cause of Action: Retaliation Government Code section 12940, subdivision (h), prohibits an employer from retaliating against any person who has opposed any practices forbidden under the section or because the person filed a complaint, testified, or assisted in any proceeding under the section. To state a FEHA retaliation claim, a plaintiff must show (1) plaintiff was engaged in a protected activity, (2) the employer subjected the employee to an adverse employment action, and (3) there is a causal link between the protected activity and the employer’s action. (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042 (Yanowitz).)

1. Statute of Limitations Defendant argues Plaintiff filed his FEHA complaint on May 3, 2025, and therefore any alleged FEHA “unlawful practice” occurring before May 3, 2022 falls outside the limitations period. In opposition, Plaintiff relies on National Railroad Passenger Corp. v. Morgan (2002) 536 U.S. 101 (Morgan) to contend that earlier alleged sexual-harassment conduct may still be considered to prove retaliatory motive and causation.

Morgan, however, held that untimely acts may be actionable only where the claim involves a hostile work environment comprised of a series of acts that collectively constitute a single unlawful employment practice and where at least one component act falls within the limitations period; the decision turned on the continuity and relatedness of the conduct. (Morgan, supra, 536 U.S. at p. 117.) The analysis turns on whether the conduct is sufficiently related and part of a continuous course of the same unlawful conduct.

Here, the allegations do not support application of the continuing violation doctrine. The conduct alleged from 2017 to 2021 involving female student athletes consists of discrete, sporadic incidents separated by significant time gaps. Those allegations differ in kind and circumstance from Plaintiff’s October 2022 observation of Vartanian driving a male student athlete, which forms the basis of the current retaliation claim. The incidents involve different alleged victims, different types of conduct, and are not alleged as part of an ongoing pattern of the same unlawful practice. Accordingly, the pre-May 3, 2022 allegations are time-barred and cannot serve as independent predicates for liability under FEHA. At most, they may provide background context. Therefore, the Court limits its analysis to timely alleged conduct involving the male student.

2. Plaintiff Does Not Allege FEHA-Protected Activity FUSD argues that the one activity alleged by Plaintiff that is not time-barred is Vartanian driving a male student in his personal vehicle on October 29, 2022. It argues that this incident does not support Plaintiff’s claim that he “opposed sexual harassment” under FEHA and was subsequently retaliated against for doing so. FUSD argues that the fact that the student should not have been riding in Vartanian’s car because it was prohibited by Defendant FUSD does not support a FEHA claim.

In opposition, Plaintiff argues that protected activity is not limited to “opposing” existing sexual harassment. Plaintiff argues that Government Code section 12940, subdivision (h), makes it illegal to discharge or to discriminate against someone who has filed a complaint, testified, or assisted in any proceeding (under FEHA). Thus, Plaintiff argues that his complaint about Vartanian putting the underage student in circumstances where sexual harassment could easily occur was protected activity.

Here, Plaintiff alleges that on October 29, 2022, he saw Vartanian in a car with a minor, male student athlete. Plaintiff recorded the incident on his phone and, in light of a prior suspension in 2021 for not reporting an incident quickly enough, provided the recording to the school’s Vice Principal the same day. Plaintiff also completed the FUSD complaint form. On October 31, 2022, Plaintiff alleges he met with the vice principal to discuss his concerns and, as a mandated reporter, believed Vartanian’s conduct was inappropriate. (Compl. ¶¶ 23-28.) On November 7, 2022, Plaintiff was asked to turn in his keys and was no longer allowed on school grounds. Plaintiff alleges he was wrongfully released after filing a mandatory report. (Compl. ¶¶ 38, 41.)

Given the Court’s consideration of Plaintiff’s prior complaint and portions of the deposition testimony, the current pleading must be read in that context. The noticed materials are relevant to evaluating inconsistencies bearing on the sufficiency of the current complaint. In the prior complaint, Plaintiff similarly alleged that he observed Vartanian with a student in his car and reported the incident. (RJN Exh. A.) However, that complaint, including the attached FUSD complaint form, did not frame the report as involving sexual harassment or any protected category under FEHA. Instead, Plaintiff selected “Other” and described his claim as being “fired without cause and mandated to report.” (Ibid.)

By contrast, the current complaint reframes the same October 2022 incident as protected activity based on opposing sexual harassment. (Compl. ¶ 3.) The deposition testimony reinforces this inconsistency. Plaintiff testified under oath that he did not believe there was any improper or sexual relationship between Vartanian and the student, but rather that the coach gave the student more attention. (RJN Exh. B.) Taken together, the judicially noticed materials demonstrate that Plaintiff is attempting to materially alter the characterization of the same underlying conduct, i.e., from a policy or reporting issue into opposition to sexual harassment under FEHA, without any explanation.

Absent such explanation, the allegations in the earlier pleading or discovery response are read into the complaint, and inconsistent allegations are treated as sham and disregarded. (Owens v. Kings Supermarket (1988) 198 Cal.App.3d 379, 384.)

To invoke FEHA’s retaliation protections under the “opposition” theory Plaintiff advances, an employee must oppose conduct the employee reasonably believes constitutes unlawful discrimination or harassment under FEHA. (Yanowitz, supra, 36 Cal.4th at p. 1047; Dinslage v. City and County of San Francisco (2016) 5 Cal.App.5th 368, 381, 383.) Complaints about inappropriate conduct, policy violations, or conduct triggering mandatory-reporting obligations are not sufficient unless tied to opposition to FEHA-prohibited practices, i.e., discrimination or harassment based on a protected characteristic such as sex.

Here, Plaintiff alleges that he objected to what he believed was inappropriate boundary conduct and a policy violation—seeing Vartanian in a car with a male student and reporting it to administration as a mandated reporter. (Compl. ¶¶ 23–28.) Plaintiff’s theory that placing a student in circumstances where harassment “could easily occur” constitutes protected activity does not establish a reasonable belief that he was opposing conduct made unlawful by FEHA, as opposed to reporting a policy or safety concern.

The RJN materials discussed above confirm this conclusion. Plaintiff did not contemporaneously characterize his report as involving sexual harassment and his own deposition testimony disclaims any belief that improper sexual conduct was occurring. Plaintiff cannot plead around this defect by recharacterizing the same conduct without explanation. Accordingly, Plaintiff has not alleged FEHA-protected activity.

3. Plaintiff Does Not Sufficiently Allege Causation Defendant also argues that Plaintiff cannot establish a causal connection between any adverse employment action and protected activity under FEHA. In reviewing the complaint, the allegations fall into two categories: (1) conduct from 2017 to 2021 involving female student athletes; and (2) the October 2022 incident involving the male student athlete.

Again, the alleged conduct involving female student athletes from 2017 to 2021 is timebarred and cannot serve as the predicate protected activity for the present claim. In any event, Plaintiff does not allege that he reported or opposed those incidents in a manner that would constitute protected activity under FEHA. Without a complaint or opposition to FEHA-prohibited conduct, there can be no retaliation “because of” such activity. To the extent Plaintiff relies on reporting an incident involving a student being struck by a vehicle, that allegation concerns a safety issue, not conduct prohibited by FEHA.

As to the October 2022 incident, Plaintiff cannot establish causation because, as discussed above, that conduct does not constitute protected activity under FEHA. Accordingly, Plaintiff cannot establish the first element of a retaliation claim and necessarily cannot allege a causal nexus between his report and any adverse employment action. Temporal proximity alone is insufficient where the underlying conduct is not protected.

Based on the above analysis, the Court sustains the demurrer as to the first cause of action for retaliation. As for leave to amend, Plaintiff does not argue in favor of amending to plead FEHA claims. Instead, Plaintiff identifies a potential alternative theory under Labor Code section 6310, subdivision (a)(1), which may encompass his claims. Although not currently pled, Plaintiff’s acknowledgement of this theory suggests a reasonable possibility that the defects could be cured by amendment based on the same basic underlying facts related to his reporting.

Defendant’s Demurrer as to the Second Cause of Action: Failure to Prevent Retaliation Defendant FUSD demurs to the second cause of action for failure to prevent retaliation and argues that this cause of action is entirely derivative of Plaintiff’s underlying retaliation claim. Because Plaintiff has not adequately alleged a FEHA retaliation claim, the derivative cause of action for failure to prevent retaliation necessarily fails as well. Therefore, the Court sustains the demurrer as to the second cause of action for failure to prevent retaliation.

Defendant’s Motion to Strike FUSD moves to strike paragraph 51, lines 11 to 17, and the prayer for special damages. Defendant argues the complaint improperly seeks punitive damages and special damages. Plaintiff opposes, asserting the complaint does not seek punitive damages and that public entities are not immune from compensatory damages.

Paragraph 51 of the complaint states at page 6:11-17: As a further direct and legal result of Defendant’s acts and conduct as aforesaid and herein generally, Plaintiff has been caused to and did suffer and continues to suffer severe emotional and mental distress, anguish, humiliation, embarrassment, fright, mental and physical pain, discomfort and anxiety. Plaintiff does not know at this time the exact duration or permanence of said injuries, but is informed and believes, and hereon alleges, that some, if not all, of the injuries are such that plaintiff has been generally damaged in an amount within the jurisdictional limits of this court.

Paragraph 51 alleges general damages and does not reference punitive or exemplary damages. Defendant does not address this issue in reply. Therefore, there is no basis to strike paragraph 51, and the motion is denied as to that portion.

As to Plaintiff’s prayer for special damages, Defendant argues that public entities are immune from such damages under Civil Code section 3294 and that the prayer is vague and must be alleged with particularity. Defendant’s reliance on Civil Code section 3294 is misplaced, as that statute governs punitive or exemplary damages. Public entities are immune from punitive damages under Government Code section 818, but not from compensatory damages, including economic or “special” damages, where liability is otherwise authorized. (Gov. Code § 818.) Accordingly, Defendant has not shown that Plaintiff’s request for special damages is improper and the motion to strike is denied.

RULING For all the reasons stated above, the Court SUSTAINS FUSD’s demurrer to the first and second causes of action because Plaintiff fails to allege sufficient facts in support of these FEHA claims when his prior complaint and deposition testimony are considered. The Court grants Plaintiff 20 days leave to amend to give Plaintiff an opportunity to allege an alternative theory not predicated on a FEHA claim. The Court DENIES FUSD’s motion to strike. The Court GRANTS FUSD’s request for judicial notice and take judicial notice of RJN Exhibit A and RJN Exhibit B.