Keri Common v. Santa Barbara Unified School District, et al.

Plaintiff's first position with SBUSD was as Payroll Manager but, in 2023, SBUSD told Plaintiff that SBUSD would no longer accommodate Plaintiff working remotely and that she would need to return to working in office. (Compl., P. 12.) Assistant Superintendent of Business Services, Kim Hernandez, told Plaintiff that if Plaintiff did not return to the office she could no longer be employed by SBUSD. (Ibid.) Plaintiff suggested that she could be in a compliance position and Hernandez agreed. (Id. at P. 13.)

SBUSD transferred Plaintiff into a Benefits and Compliance Manager position and agreed that Plaintiff could work remotely in this position. (Id. at P. 14.) On June 7, 2023, Personnel Managers Roxanna Stern and Tara Wise met with Plaintiff regarding what accommodations Plaintiff would need. (Compl., P. 15.) SBUSD and Plaintiff agreed on the following accommodations for Plaintiff's new position of Benefits and Compliance Manager: (1) work remotely; (2) a welcome center would be set up for employees and retirees who need to meet with Plaintiff so they could do so from the welcome center; and (3) human resources office staff would provide in-person assistance to employees and retirees in setting up the Zoom meetings with Plaintiff, provide forms to employees and retirees, and scan employees' and retirees' paperwork to a secure human resources Drive that Plaintiff would have access to. (Ibid.)

SBUSD failed to provide all of the agreed to accommodations for Plaintiff. (Compl., P. 16.) On September 5, 2023, Plaintiff began working as a Benefits and Compliance Manager. (Compl., P. 17.) In mid-December 2023, Plaintiff became ill and got worse while on an approved vacation that began on December 21, 2023, which caused her to be unable to return to work when her vacation ended. (Compl., P. 18.) Plaintiff was placed off work by a doctor from January 9, 2024, through January 31, 2024. (Ibid.)

On January 23, 2024, Plaintiff was hospitalized and remailed on approved medical leave of absence until she returned to work on February 8, 2024. (Ibid.) On February 28, 2024, Assistant Superintendent Becchio and Human Resources Director Peak held a meeting with Plaintiff in which they accused her of working another job in violation of Board Policy 4236 and criticized

Plaintiff's work performance, including for periods of time when Plaintiff was on leave of absence. (Compl., P. 19.) In early March 2024, Becchio told Plaintiff that Plaintiff could no longer work from home as an accommodation. (Compl., P. 20.) On March 11, 2024, Plaintiff received a negative performance evaluation from Becchio for the period of August 1, 2023, through July 1, 2024. (Id. at P. 21.) On March 15, 2024, Plaintiff began an approved medical leave of absence, and on May 2, 2024, while still on the leave of absence, Plaintiff was required to attend a meeting with Becchio and Peak regarding Plaintiff's work performance. (Compl., P. 22.)

Plaintiff told Becchio and Peak that she was ill and on medical leave and opposed their questioning of her while on medical leave. (Ibid.) Between the beginning of her employment and the March 2024 leave of absence, Plaintiff reported numerous acts that Plaintiff believed were unlawful and violated local, state, or federal regulations, to Becchio Peak, Wise, and Jennifer Cornejo. (Compl., P. 23.) On September 16, 2024, Plaintiff returned to work from her medical leave and was placed on administrative leave by Becchio pending disciplinary charges. (Compl., P. 24.)

On September 20, 2024, SBUSD gave Plaintiff a Notice of Proposed Discipline to terminate Plaintiff, and on December 9, 2024, the Skelly Officer upheld the decision to terminate Plaintiff, with an effective termination date of October 15, 2025. (Compl., P. 25.) Any additional allegations of the Complaint will be set forth below where appropriate. SBUSD now demurs to all causes of action other than the eighth cause of action, which is not alleged as against SBUSD. Plaintiff opposes the demurrer. SBUSD now also moves to strike portions of the complaint primarily related to declaratory relief, attorneys' fees and costs, and injunctive relief.

Plaintiff opposes the motion to strike.

Analysis

Demurrer "When any ground for objection to a complaint, cross-complaint, or answer appears on the face thereof, or from any matter of which the Court is required to or may take judicial notice, the objection on that ground may be taken by a demurrer to the pleading." (Code Civ. Proc., Sec. 430.30, subd. (a).) "Our consideration of the facts alleged includes 'those evidentiary facts found in recitals of exhibits attached to [the] complaint.' [Citation.]" (Alexander v. Exxon Mobil (2013) 219 Cal.App.4th 1236, 1250.) "The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or more of the following grounds: "(a) The Court has no jurisdiction of the subject of the cause of action alleged in the pleading. "(b) The person who filed the pleading does not have the legal capacity to sue. "(c) There is another action pending between the same parties on the same cause of action. "(d) There is a defect or misjoinder of parties. "(e) The pleading does not state facts sufficient to constitute a cause of action. "(f) The pleading is uncertain.

As used in this subdivision, "uncertain" includes ambiguous and unintelligible. "(g) In an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct. "(h) No certificate was filed as required by Section 411.35." (Code Civ. Proc., Sec. 430.10.) "[A] Court must treat a demurrer as admitting all material facts properly pleaded, it does not, however, assume the truth of contentions, deductions or conclusions of law." (Travelers Indem.

Co. of Connecticut v. Navigators Specialty Ins. Co. (2021) 70 Cal.App.5th 341, 358, citing Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967.)

"To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the Plaintiff's proof need not be alleged." (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) First Cause of Action for Disability Discrimination: SBUSD demurs to the first cause of action on the grounds that the allegations fail to set forth sufficient facts to constitute a cause of action and that the allegations are uncertain as to the basis for declaratory relief. "The elements of a disparate treatment disability discrimination claim are that the Plaintiff (1) suffered from a disability or was regarded as suffering from a disability, (2) could perform the essential duties of a job with or without reasonable accommodations, and (3) was subjected to an adverse employment action because of the disability or perceived disability. [Citation.[" (Glynn v.

Superior Court (2019) 42 Cal.App.5th 47, 53 fn. 1.) There is no dispute that Plaintiff has alleged that she suffered from a disability. SBUSD argues that Plaintiff fails to allege the other two elements. In opposition, Plaintiff argues that she has pled sufficient facts that she could perform the essential functions of her job with accommodations. She specifically refers to paragraphs 11-15, 18, and 22 of the complaint. A review of those paragraphs, as well as the remainder of the complaint, reveals that Plaintiff has not in fact pled that she could perform the essential functions of her job with or without reasonable accommodations.

As she has failed to plead all elements of a disability discrimination claim, the demurrer to the first cause of action will be sustained with leave to amend. The Court does note that the third element has been adequately pled. Plaintiff sets forth allegations of adverse employment actions such as a negative performance review, administrative leave, and termination. Second Cause of Action for Failure to Accommodate SBUSD demurs to the second cause of action on the grounds that the allegations fail to set forth sufficient facts to constitute a cause of action and that the allegations are uncertain as to the basis for declaratory relief.

Despite SBUSD's argument that there are five elements that must be pled in a failure to accommodate cause of action, there are three. "There are three elements to a failure to accommodate action: " '(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. [Citation.]' " [Citation.]" (Hernandez v. Rancho Santiago Community College District (2018) 22 Cal.App.5th 1187, 1193 - 1194.)

Although Plaintiff has adequately pled the first and third elements, as with the first cause of action, Plaintiff has failed to allege that she can perform the essential functions of the position. As such, the demurrer to the second cause of action will be sustained with leave to amend. Third Cause of Action for Failure to Engage in the Interactive Process SBUSD demurs to the third cause of action on the grounds that the allegations fail to set forth sufficient facts to constitute a cause of action and that the allegations are uncertain as to the basis for declaratory relief. "The Legislature affirms the importance of the interactive process between the applicant or employee and the employer in determining a reasonable accommodation, as this requirement has been articulated by the Equal Employment Opportunity Commission in its interpretive guidance of the federal Americans with Disabilities Act of 1990." (Gov.

Code, Sec. 12926.1, subd. (e).) It is an unlawful employment practice: "For an employer or other entity covered by this part to fail to engage in a timely, good faith, interactive process with the employee or applicant to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee or applicant with a known physical or mental disability or known medical condition. (Gov. Code, Sec. 12940, subd. (n).) "To prevail on a claim for failure to engage in the interactive process, the employee must identify a reasonable accommodation that would have been available at the time the interactive process occurred." (Nealy v.

City of Santa Monica (2015) 234 Cal.App.4th 359, 379.) Based on the language of the statute, as well as the above quoted case law, there are four elements that must be pled for a viable cause of action based on failure to engage in the interactive process: (1) Plaintiff has a known physical or mental disability or known medical condition, (2) Plaintiff must request a reasonable

accommodation, (3) the employer failed to engage in a timely, good faith, interactive process with the employee to determine effective reasonable accommodations, and (4) a reasonable accommodation must have been available at the time the interactive process should have occurred. Again, there is no dispute that Plaintiff has adequately pled a disability or medical condition. In paragraph 15, Plaintiff pleads that on June 7, 2023, Stern and Wise did meet with her regarding what accommodations would be needed, but then pleads, at paragraph 16 that SBUSD failed to provide the agreed-to accommodations.

This indicates that reasonable accommodation, or accommodations, were available. By the pleading of failure to provide the accommodations, there is a reasonable inference that any such interactive process was not in good faith. The Court finds that Plaintiff has adequately pled her third cause of action. The demurrer to the third cause of action will be overruled. Fourth Cause of Action for Violation of the California Family Rights Act SBUSD demurs to the fourth cause of action on the grounds that the allegations fail to set forth sufficient facts to constitute a cause of action and that the allegations are uncertain as to the basis for declaratory relief.

SBUSD again tries to add additional elements to the cause of action. There are four elements that Plaintiff must plead. " 'The elements of a cause of action for retaliation in violation of CFRA are: ' " '(1) the Defendant was an employer covered by CFRA; (2) the Plaintiff was an employee eligible to take CFRA [leave]; (3) the Plaintiff exercised her right to take leave for a qualifying CFRA purpose; and (4) the Plaintiff suffered an adverse employment action, such as termination, fine, or suspension, because of her exercise of her right to CFRA [leave].' " ' [Citation.]

Similar to causes of action under FEHA, the McDonnell Douglas burden shifting analysis applies to retaliation claims under CFRA.' " [Citation.]" (Soria v. Univision Radio Los Angeles, Inc. (2016) 5 Cal.App.5th 570, 604.) SBUSD argues that Plaintiff has failed to allege facts supporting element No.

4. The argument fails. As set forth above, Plaintiff has pled sufficient facts of an adverse employment action. As such, the demurrer to the fourth cause of action for violation of the CFRA will be overruled. Fifth Cause of Action for Retaliation - Violation of Government Code section 12940, subdivision (m)(2) SBUSD demurs to the fifth cause of action on the grounds that the allegations fail to set forth sufficient facts to constitute a cause of action and that the allegations are uncertain as to the basis for declaratory relief.

It is an unlawful employment practice: "For an employer or other entity covered by this part to, in addition to the employee protections provided pursuant to subdivision (h), retaliate or otherwise discriminate against a person for requesting accommodation under this subdivision, regardless of whether the request was granted." (Gov. Code, Sec. 12940, subd. (m)(2).) SBUSD sets forth no additional argument or authorities, other than that related to Plaintiff's second cause of action for failure to accommodate. "Past California cases hold that in order to establish a prima facie case of retaliation under the FEHA, a Plaintiff must show (1) he or she engaged in a " 'protected activity,' " (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer's action. [Citations.]" (Yanowitz v.

L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.) Here, Plaintiff pleads that she engaged in protected activities, including requesting accommodations and objecting to being required to work while on medical leave. She further pleads adverse employment actions based on those protected activities. The allegations are sufficient to overcome demurrer and the demurrer to the fifth cause of action will be overruled. Sixth Cause of Action for Retaliation - Violation of Government Code section 12940, subdivision (h) SBUSD demurs to the sixth cause of action on the grounds that the allegations fail to set forth sufficient facts to constitute a cause of action and that the allegations are uncertain as to the basis for declaratory relief.

SBUSD also demurs to the sixth cause of action on the grounds that the complaint fails to set forth facts sufficient to

constitute a cause of action because Plaintiff has failed to exhaust administrative remedies prior to filing the action. It is an unlawful employment practice: "For any employer, labor organization, employment agency, or person to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part." (Gov. Code, Sec. 12940, subd. (h).)

SBUSD's argument that Plaintiff failed to exhaust administrative remedies, is unpersuasive. There is a dispute regarding whether Plaintiff was required to do so rather than any defect that appears on the face of the complaint. The elements for the sixth cause of action are the same as they are for the fifth cause of action and the demurrer to the sixth cause of action will be overruled for the same reasons. Seventh Cause of Action for Failure to Prevent Discrimination and Retaliation SBUSD demurs to the seventh cause of action on the grounds that the allegations fail to set forth sufficient facts to constitute a cause of action and that the allegations are uncertain as to the basis for declaratory relief.

It is an unlawful employment practice: "For an employer, labor organization, employment agency, apprenticeship training program, or any training program leading to employment, to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring." (Gov. Code, Sec. 12940, subd. (k). "The FEHA also prohibits employers from failing " 'to take all reasonable steps necessary to prevent discrimination and harassment from occurring.' " (Sec. 12940, subd. (k).) " 'It creates a separate actionable tort enforceable upon the establishment of the usual tort elements of duty of care, breach of duty (a negligent act or omission), causation, and damages.' " [Citation.]" (Paleny v.

Fireplace Products U.S., Inc. (2024) 103 Cal.App.5th 199, 213.) Because Plaintiff's causes of action based on retaliation are being overruled, and Plaintiff sufficiently pleads that SBUSD failed to take all reasonable steps necessary to prevent and investigate that retaliation, the seventh cause of action is sufficient to overcome demurrer. The demurrer to the seventh cause of action will be overruled. Ninth Cause of Action for Violation of Education Code section 44114 SBUSD demurs to the ninth cause of action on the grounds that the allegations fail to set forth facts sufficient to constitute a cause of action. "(a) A public school employee or applicant for employment with a public school employer who files a written complaint with his or her supervisor, a school administrator, or the public school employer alleging actual or attempted acts of reprisal, retaliation, threats, coercion, or similar improper acts prohibited by Section 44113 for having disclosed improper governmental activities or for refusing to obey an illegal order may also file a copy of the written complaint with the local law enforcement agency together with a sworn statement that the contents of the written complaint are true, or are believed by the affiant to be true, under penalty of perjury.

The complaint filed with the local law enforcement agency shall be filed within 12 months of the most recent act of reprisal that is the subject of the complaint. (b) A person who intentionally engages in acts of reprisal, retaliation, threats, coercion, or similar acts against a public school employee or applicant for employment with a public school employer for having made a protected disclosure is subject to a fine not to exceed ten thousand dollars ($10,000) and imprisonment in the county jail for a period not to exceed one year.

Any public school employee, officer, or administrator who intentionally engages in that conduct shall also be subject to discipline by the public school employer. If no adverse action is instituted by the public school employer and it is determined that there is reasonable cause to believe that an act of reprisal, retaliation, threats, coercion, or similar acts prohibited by Section 44113 occurred, the local law enforcement agency may report the nature and details of the activity to the governing board of the school district or county board of education, as appropriate. (c) In addition to all other penalties provided by law, a person who intentionally engages in acts of reprisal, retaliation, threats, coercion, or similar acts against a public school employee or applicant for employment with a public school employer for having made a protected disclosure shall be liable in an action for damages brought

against him or her by the injured party. Punitive damages may be awarded by the Court where the acts of the offending party are proven to be malicious. Where liability has been established, the injured party shall also be entitled to reasonable attorney's fees as provided by law. However, an action for damages shall not be available to the injured party unless the injured party has first filed a complaint with the local law enforcement agency. (d) This section is not intended to prevent a public school employer, school administrator, or supervisor from taking, failing to take, directing others to take, recommending, or approving a personnel action with respect to a public school employee or applicant for employment with a public school employer if the public school employer, school administrator, or supervisor reasonably believes the action or inaction is justified on the basis of evidence separate and apart from the fact that the person has made a protected disclosure as defined in subdivision (e) of Section 44112. (e) In any civil action or administrative proceeding, once it has been demonstrated by a preponderance of evidence that an activity protected by this article was a contributing factor in the alleged retaliation against a former, current, or prospective public school employee, the burden of proof shall be on the supervisor, school administrator, or public school employer to demonstrate by clear and convincing evidence that the alleged action would have occurred for legitimate, independent reasons even if the public school employee had not engaged in protected disclosures or refused an illegal order.

If the supervisor, school administrator, or public school employer fails to meet this burden of proof in an adverse action against the public school employee in any administrative review, challenge, or adjudication in which retaliation has been demonstrated to be a contributing factor, the public school employee shall have a complete affirmative defense in the adverse action. (f) Nothing in this article shall be deemed to diminish the rights, privileges, or remedies of a public school employee under any other federal or state law or under an employment contract or collective bargaining agreement. (g) If the provisions of this section are in conflict with the provisions of a memorandum of understanding reached pursuant to Chapter 10.7 (commencing with Section 3540) of Division 4 of Title 1 of the Government Code, the memorandum of understanding shall be controlling without further legislative action." (Ed.

Code, Sec. 44114.) SBUSD argues that: "The Complaint alleges that Plaintiff " 'made a protected disclosure and/or disclosed improper governmental activities and/or refused to obey an illegal order' " but fails to specify which of these three distinct categories of conduct forms the basis of this claim, or when any protected act was disclosed or what the nature of any such act was. The complaint also contains no factual allegations that the District's actions were not protected pursuant to Cal. Ed.

Code Sec. 44114(d)." (Demurrer, p. 8, ll. 9-13.) SBUSD argues that the allegations are "vague and conclusory" and fail to provide adequate notice of the factual basis for this claim and render the cause of action uncertain." (Id., at ll. 20-21.) As Plaintiff points out, she is permitted to plead alternate legal theories and, at the pleading stage, the Defendants would be in a much better position to know which of Plaintiff's actions, if any, led to "acts of reprisal, retaliation, threats, coercion, or similar acts" due to the protected disclosures.

Further: " ' "[D]emurrers for uncertainty are disfavored, and are granted only if the pleading is so incomprehensible that a Defendant cannot reasonably respond." ' " [Citations.] " ' "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." ' " [Citations.]" (A.J. Fistes Corp. v. GDL Best Contractors, Inc. (2019) 38 Cal.App.5th 677, 695.) The allegations are not so incomprehensible that SBUSD cannot reasonably respond.

The demurrer to the ninth cause of action will be overruled. Tenth Cause of Action for Unlawful Retaliation in Violation of Labor Code section 1102.5 SBUSD demurs to the tenth cause of action on the grounds that the allegations fail to set forth facts sufficient to constitute a cause of action. "(a) An employer, or any person acting on behalf of the employer, shall not make, adopt, or enforce any rule, regulation, or policy preventing an employee from disclosing information to a government or law enforcement agency, to a person with authority over the employee, or to another employee who has authority to investigate, discover, or correct the violation or noncompliance, or from providing information to, or testifying before, any

public body conducting an investigation, hearing, or inquiry, if the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation, regardless of whether disclosing the information is part of the employee's job duties. (b) An employer, or any person acting on behalf of the employer, shall not retaliate against an employee for disclosing information, or because the employer believes that the employee disclosed or may disclose information, to a government or law enforcement agency, to a person with authority over the employee or another employee who has the authority to investigate, discover, or correct the violation or noncompliance, or for providing information to, or testifying before, any public body conducting an investigation, hearing, or inquiry, if the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation, regardless of whether disclosing the information is part of the employee's job duties. (c) An employer, or any person acting on behalf of the employer, shall not retaliate against an employee for refusing to participate in an activity that would result in a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation. (d) An employer, or any person acting on behalf of the employer, shall not retaliate against an employee for having exercised their rights under subdivision (a), (b), or (c) in any former employment." (Lab.

Code, Sec. 1102.5, subds. (a) - (d).) " 'This provision reflects the broad public policy interest in encouraging workplace whistle-blowers to report unlawful acts without fearing retaliation.' " [Citation.] To establish a prima facie case of retaliation, the Plaintiff " 'must show (1) she engaged in a protected activity, (2) her employer subjected her to an adverse employment action, and (3) there is a causal link between the two.' " [Citation.]" (McVeigh v. Recology San Francisco (2013) 213 Cal.App.4th 443, 468.)

Plaintiff alleges: "Between the start of her employment and her March 2024 leave of absence, Plaintiff reported to Defendant Becchio, Defendant Peak, Wise and/or Jennifer Cornejo acts that Plaintiff reasonably believed were unlawful and/or violated local, state, or federal regulations including, but not limited to: employees including Defendant Becchio's wife were working part-time but were coded as full-time employees allowing them to accrue service years in the CalSTRS retirement system at a faster and improper rate than if they had been coded as required by the CalSTRS regulations; Defendant SBUSD was required to report all employee pay to the Board for approval, but failed to do so; Defendant SBUSD could not hire retired employees at the rates of pay, hours, sick pay, holiday pay, and/or benefits that Defendant SBUSD offered because it was not allowed under the CalPERS regulations; at least one retired employee who Defendant SBUSD rehired as a contractor was given an on-site office in violation of CalPERS regulations; Defendant SBUSD could not change the social security number of a former employee in the system in order to enter a new employee who provided the same social security number; and Defendant SBUSD had been overpaying a health insurance vendor by thousands of dollars resulting in the misuse and overspending of public funds." (Compl., P. 23.)

This satisfies the first element. As discussed above, Plaintiff has adequately alleged the second and third elements of adverse employment actions and a causal link between the two. The demurrer to the tenth cause of action will be overruled. Prayer for Declaratory Relief As a demurrer to Plaintiff's prayers for declaratory relief will not completely dispose of any of the causes of action, as is required on demurrer, Plaintiff's prayer for declaratory relief will be properly addressed with respect to the motion to strike.

Motion to Strike "The Court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading." (Code Civ. Proc.,

Sec. 436.) "Irrelevant matter" includes a "demand for judgment requesting relief not supported by the allegations of the complaint." (Code Civ. Proc., Sec. 431.10, subds. (b)(3), (c).) "The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the Court is required to take judicial notice." (Code Civ. Proc., Sec. 437, subd. (a).) "In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties." (Code Civ.

Proc., Sec. 452.) "[J]udges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth." (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.) SBUSD seeks to strike the portions of Plaintiff's complaint that seek declaratory relief and attorneys' fees in conjunction with the declaratory relief. "Any person interested under a written instrument, excluding a will or a trust, or under a contract, or who desires a declaration of his or her rights or duties with respect to another, or in respect to, in, over or upon property, or with respect to the location of the natural channel of a watercourse, may, in cases of actual controversy relating to the legal rights and duties of the respective parties, bring an original action or cross-complaint in the superior Court for a declaration of his or her rights and duties in the premises, including a determination of any question of construction or validity arising under the instrument or contract.

He or she may ask for a declaration of rights or duties, either alone or with other relief; and the Court may make a binding declaration of these rights or duties, whether or not further relief is or could be claimed at the time. The declaration may be either affirmative or negative in form and effect, and the declaration shall have the force of a final judgment. The declaration may be had before there has been any breach of the obligation in respect to which said declaration is sought." (Code Civ.

Proc., Sec. 1060.) " 'The fundamental basis of declaratory relief is the existence of an actual, present controversy over a proper subject.' " [Citation.]" (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 79.) In a complaint seeking declaratory relief, " 'an actual, present controversy must be pleaded specifically' and 'the facts of the respective claims concerning the [underlying] subject must be given.' " (Id. at p. 80.) "When a Plaintiff has shown by a preponderance of the evidence that discrimination was a substantial factor motivating his or her termination, the employer is entitled to demonstrate that legitimate, nondiscriminatory reasons would have led it to make the same decision at the time.

If the employer proves by a preponderance of the evidence that it would have made the same decision for lawful reasons, then the Plaintiff cannot be awarded damages, backpay, or an order of reinstatement. However, where appropriate, the Plaintiff may be entitled to declaratory or injunctive relief. The Plaintiff also may be eligible for an award of reasonable attorney's fees and costs under section 12965, subdivision (b)." (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 241, italics added.)

At the pleading stage, Plaintiff's request for declaratory relief, injunctive relief, and attorney's fees is permissible. SBUSD's motion to strike will be denied in its entirety.

Tentative Ruling: Natasha Todorovic v. City of Santa Barbara, et al. Tentative Ruling: Natasha Todorovic v. City of Santa Barbara, et al.