MCINTYRE vs CITY OF SACRAMENTO, A CALIFORNIA CHARTER CITY, et al.

24CV013308: MCINTYRE vs CITY OF SACRAMENTO, A CALIFORNIA CHARTER CITY, et al. 05/27/2026 Hearing on Demurrer to Second Amended Complaint in Department 8D

Tentative Ruling

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24CV013308: MCINTYRE vs CITY OF SACRAMENTO, A CALIFORNIA CHARTER CITY, et al. 05/27/2026 Hearing on Demurrer to Second Amended Complaint in Department 8D

and requests a court reporter, the party must submit a Request for Court Reporter by a Party with a Fee Waiver (CV/E-211) and it must be filed with the clerk at least 10 days prior to the hearing or at the time the proceeding is scheduled if less than 10 days away. Once approved, the clerk will forward the form to the Court Reporter’s Office and an official reporter will be provided.

***NOTICE: EFFECTIVE APRIL 13, 2026, THIS DEPARTMENT HAS MOVED TO THE TANI G. CANTIL-SAKAUYE COURTHOUSE LOCATED AT 500 G. ST. SACRAMENTO, CA. ALL MOTIONS NOTICED FOR DEPARTMENT 25 WILL BE HEARD IN DEPARTMENT 8D OF THE NEW COURTHOUSE. ALL PAPERS FOR THIS DEPARTMENT MUST BE FILED AT THIS NEW LOCATION AND WILL NOT BE ACCEPTED AT THE HALL OF JUSTICE. ALL HEARINGS WILL TAKE PLACE AT THIS NEW LOCATION***

Defendant Universal Protection Service, LP’s (“Defendant”) demurrer to self-represented plaintiff Barbara McIntyre’s (“Plaintiff”) Second Amended Complaint (“SAC”) is ruled upon as follows.

Factual and Procedural Background

Plaintiff filed her First Amended Complaint filed on September 4, 2024, alleging six causes of action against Defendant: (1) whistleblower retaliation; (2) discrimination based on sex, gender, gender identity, gender expression or sexual orientation under the California Fair Employment and Housing Act (“FEHA”); (3) hostile work environment harassment under FEHA; (4) retaliation under FEHA; (5) failure to prevent harassment, discrimination, and retaliation under FEHA; and (6) violation of the Unruh Civil Rights Act. On June 11, 2025, this Court sustained Defendant’s demurrer as to Plaintiff’s the first cause of action in the FAC on the grounds that Plaintiff failed to allege sufficient facts that Defendant was her employer. The Court overruled Defendant’s demurrer as to Plaintiff’s sixth cause of action in the FAC.

The Court also sustained Defendant’s demurrer as to the second, third, fourth, and fifth causes of action on the grounds that Plaintiff’s FAC failed to allege that Defendant has a minimum of five employees or that Defendant carried out FEHA-regulated activities on behalf of the City of Sacramento (“the City”). Specifically, the Court held:

In [Raines v. U.S. Healthworks Medical Group (2023) 15 Cal.5th 268], the California Supreme Court considered whether FEHA’s definition of an “employer,” which includes “any person acting as an agent of an employer,” permits a business entity acting as an agent of the employer to be held directly liable for employment discrimination. [Citation.] The Court determined yes, “in appropriate circumstances when the business-entity agent has at least five

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

24CV013308: MCINTYRE vs CITY OF SACRAMENTO, A CALIFORNIA CHARTER CITY, et al. 05/27/2026 Hearing on Demurrer to Second Amended Complaint in Department 8D

employees and carries out FEHA-regulated activities on behalf of an employer,” the entity agent could be held directly liable. [Citation]

Preliminarily, the FAC does not allege that Universal has a minimum of five employees. . . . Nor does the FAC allege that Universal carried out “FEHA- regulated activities” on behalf of the City as contemplated by Raines, such as hiring and firing, establishing a pay plan, formulating the minimum standard of a job, or evaluating or reinstating employees. (Raines, supra, 15 Cal.5th at 286, 288.) Rather, the FAC alleges only that Universal is an independent contractor of the City, and its responsibilities are limited to providing security services at City Hall. Without more, the FAC does not contain allegations sufficient to show Universal acted as the City’s agent in FEHA regulated activities. For both of these reasons, the demurrer as to causes of action two through five is SUSTAINED.

(June 11, 2025 Order at pp. 5-6.) The Court granted leave to amend. (Id. at p. 7.)

Plaintiff filed her SAC on June 25, 2025. The SAC includes the same causes of action as in the FAC, but does not assert the first cause of action against Defendant. Plaintiff asserts the second, third, fourth, fifth, and sixth causes of actions against Defendant.

In the SAC, Plaintiff alleges she was employed as a traffic investigator by the City at City Hall. (SAC, ¶¶ 13, 18.) The City required only its female employees to swipe their employee badges to enter the women’s bathroom. (Id. at ¶ 1.) Upon swiping their badges, the City’s subcontracted security guards that were employed by Defendant would be notified of the individual entering the bathroom. (Id. at ¶¶ 17, 19.) The male security guards would repeatedly enter the women’s bathroom while the female employees were inside and using the facilities. (Id. at ¶ 23.)

The guards would pound on the door of the stall and yell, “Security!” and other statements Plaintiff could not discern. (Ibid.) This made Plaintiff afraid and/or unable to use the facilities, causing her to suffer adverse health effects. (Ibid.) Plaintiff complained about these events to the City and Defendant each time they occurred. (SAC, ¶ 33.) Plaintiff alleges she filed a charge of discrimination, harassment, and retaliation with the federal Equal Employment Opportunity Commission (“EEOC”) and the State Civil Rights Department (“CRD”) against the City on November 13, 2023, complaining about Defendant’s bathroom checks. (Id. at ¶ 61.)

Plaintiff alleges Defendant retaliated against her for complaining to the EEOC by continuing to conduct bathroom checks that same day. (Id. at ¶¶ 63-64.) On February 24, 2024, Plaintiff resigned from her position with the City for fear of being unsafe at work. (Id. at 80.)

Plaintiff’s SAC alleges that Defendant regularly employed at least five employees, acted as an agent of the City, and engaged in FEHA-regulated activities on behalf of the City. (SAC, ¶¶ 160, 180.) Specifically, Plaintiff alleges Defendant was engaged in FEHA-regulated activities on behalf of the City as part of the City’s duty to provide Plaintiff with a safe and healthy workplace

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

24CV013308: MCINTYRE vs CITY OF SACRAMENTO, A CALIFORNIA CHARTER CITY, et al. 05/27/2026 Hearing on Demurrer to Second Amended Complaint in Department 8D

free of discrimination, harassment, and retaliation, in accordance with the terms and conditions of Plaintiff’s employment. (Id. at ¶¶ 118, 119, 160, 180.)

Defendant now demurs to the second, third, fourth, and fifth causes of action in the SAC (the FEHA causes of action) on the grounds that they still do not contain facts sufficient to state a cause of action against Defendant. Specifically, Defendant argues that the SAC does not allege facts to show Defendant was Plaintiff’s employer, that it subjected her to an adverse employment action, that Plaintiff’s protected activity was a contributing factor in any decision by Defendant to subject Plaintiff to an adverse employment action, that Defendant was a substantial factor in causing Plaintiff’s injuries, and that Defendant intentionally discriminated against Plaintiff.

Plaintiff filed an opposition.

Legal Standard

The function of a demurrer is to test the sufficiency of the pleading it challenges by raising questions of law. (Salimi v. State Comp. Ins. Fund (1997) 54 Cal.App.4th 216, 219; Nordlinger v. Lynch (1990) 225 Cal.App.3d 1259, 1271.) A demurrer “tests the pleadings alone and not the evidence or other extrinsic matters.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.) The purpose of a demurrer is to test the legal sufficiency of a complaint. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.)

For the purpose of determining the effect of a complaint, its allegations are liberally construed, with a view toward substantial justice. (Code Civ. Proc., § 452; Amarel v. Connell (1988) 202 Cal.App.3d 137, 140-141; Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 43, fn. 7.) In this respect, the Court treats the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law, and considers matters which may be judicially noticed. (Blank v.

Kirwan (1985) 39 Cal.3d 311, 318; Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1111-1112.) Extrinsic evidence may not properly be considered on demurrer. (Ion Equipment Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881; Hibernia Savings & Loan Soc. v. Thornton (1897) 117 Cal. 481, 482.)

A demurrer may be sustained only if the complaint lacks any sufficient allegations to entitle the plaintiff to relief. (Financial Corp. of America v. Wilburn (1987) 189 Cal.App.3d 764, 768.) “Plaintiff need only plead facts showing that he may be entitled to some relief we are not concerned with plaintiff’s possible inability or difficulty in proving the allegations of the complaint.” (Highlanders, Inc. v. Olsan (1978) 77 Cal.App.3d 690, 696-697.) “[Courts] are required to construe the complaint liberally to determine whether a cause of action has been stated, given the assumed truth of the facts pleaded.” (Picton v.

Anderson Union High School Dist. (1996) 50 Cal.App.4th 726, 733.) A demurrer admits the truth of all material facts properly pled and the sole issue raised by a general demurrer is whether the facts pled state a valid cause of action – not whether they are true. (Serrano v. Priest (1971) 5 Cal.3d 584, 591.)

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

24CV013308: MCINTYRE vs CITY OF SACRAMENTO, A CALIFORNIA CHARTER CITY, et al. 05/27/2026 Hearing on Demurrer to Second Amended Complaint in Department 8D

Discussion

Defendant argues that Plaintiff has not alleged, and cannot allege, any facts to show that Plaintiff was employed by Defendant or that Defendant conducted FEHA-regulated activities on the City’s behalf that would give rise to liability under claims under FEHA. In opposition, Plaintiff primarily argues that her proposed Third Amended Complaint (“TAC”) cures any defects in the SAC and notes that the SAC was filed by former counsel.

California law limits liability on FEHA claims to the plaintiff's employer (see, e.g., Reno v. Baird (1998) 18 Cal.4th 640, 644-645 [non-employer individuals cannot be personally liable for discrimination or retaliation under FEHA; superseded on other grounds by statute]; Jones v. Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158, 1160 [only employer may held be liable for discrimination and/or retaliation under FEHA]; Yee v. Superior Court (2019) 31 Cal.App.5th 26, 34 [wrongful termination may only be asserted against employer since only employer may alter employment relationship].) However, the California Supreme Court has held that a business entity agent can be held directly liable for claims “for their FEHA-regulated activities.” (See Raines v. U.S. Healthworks Medical Group (2023) 15 Cal.5th 268 (hereafter “Raines”).)

In ruling on a demurrer, this Court is limited to reviewing allegations in the SAC or facts subject to judicial notice. Here, Plaintiff has alleged that she was employed by the City and that Defendant has at least five employees and acted as an agent on behalf of the City. (See SAC, ¶ 160.) However, the Court finds Plaintiff fails to allege sufficient facts to show that Defendant carried out FEHA-regulated activities on behalf of the City such that Defendant could be held liable as a business-entity agent. An employer’s agent can be held liable by exercising control of the employer’s traditional rights and duties traditionally reserved to employers, including hiring and firing employees, establishing a pay plan, formulating the minimum standard of a job, and transferring, promoting, or reinstating employees. (See Raines, supra, 15 Cal.5th at pp. 287-288.)

Plaintiff’s SAC contains only conclusory statements that Defendant was engaged in FEHAregulated activities on the City’s behalf without alleging facts showing how Defendant exercised control of the City’s traditional rights and duties as an employer. (See SAC, ¶¶ 160, 180.) Plaintiff’s only apparent allegation of how Defendant exercised such rights or duties is as follows:

118. [Defendant] was engaged in FEHA-regulated activities when it conducted its bathroom intrusions into the second-floor Women’s restroom on behalf of the [City].

119. [Defendant’s] services for the [City] were FEHA-regulated activities which affected [Plaintiff’s] terms and conditions of employment at the [City], as previously alleged. This

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

24CV013308: MCINTYRE vs CITY OF SACRAMENTO, A CALIFORNIA CHARTER CITY, et al. 05/27/2026 Hearing on Demurrer to Second Amended Complaint in Department 8D

is because a safe and healthy workplace free of discrimination, harassment and retaliation, where her privacy when using the workplace bathroom was protected, and her private data about when she used the workplace bathroom was also protected from misuse by her employer or an agent acting on behalf of her employer, were all terms and conditions of [Plaintiff’s] employment at the [City]. [Defendant’s] services were conducted on behalf of the [City] as part of the [City’s] duty to provide [Plaintiff] those terms and conditions, among others, in a safe and healthy workplace environment which was free from discrimination, harassment, and retaliation.

(SAC ¶¶ 118, 119.) These allegations merely assert the conclusion that Defendant engaged in “FEHA regulated activities when it conducted its bathroom intrusions,” but fails to state facts regarding what alleged conduct constitutes “FEHA regulated activities.” As Raines noted, examples of FEHA regulated activities may include establishing a pay plan, formulating minimum standards for jobs, evaluating employees, transferring, promoting, or demoting employees, or firing employees; the SAC alleges no facts to support the conclusory assertion that Defendant engaged in FEHA-regulated activities.

Therefore, the demurrer as to the second, third, fourth, and fifth causes of action is SUSTAINED. As this is the second challenge to the Complaint, leave to amend is granted. However, through this Order, the Court does not grant leave to amend beyond the scope of those issues raised in the demurrer.

Where a challenge to a pleading is sustained or granted with leave to amend, the leave must be construed to the pleader to amend the causes of action to which the pleading challenge was granted/sustained. (See Zak v. Diesel (2019) 33 Cal.App.5th 431, 456; Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1023.) Rather, “[t]o raise claims unrelated to those pleased in an earlier complaint (i.e., a wholly distinct and different legal obligation of the defendant),” a plaintiff may need to file a motion for leave to amend the earlier complaint. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2025) ¶ 7:148.1.) “Absent prior leave of court, an amended complaint raising totally new and different causes of action may be subject to a motion to strike.” (Ibid.)

The Court grants leave to amend, but only within the scope of the arguments raised in the demurrer as to Plaintiff’s second, third, fourth, and fifth causes of action under FEHA.)

If Plaintiff wishes to amend her SAC beyond the scope of the leave to amend granted in these orders, nothing in this order prevents Plaintiff from seeking such relief through a properly noticed motion.

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

24CV013308: MCINTYRE vs CITY OF SACRAMENTO, A CALIFORNIA CHARTER CITY, et al. 05/27/2026 Hearing on Demurrer to Second Amended Complaint in Department 8D

Disposition

Defendant’s demurrer to the SAC is SUSTAINED with leave to amend.

Plaintiff may file and serve an amended Complaint no later than June 10, 2026.

This minute order is effective immediately. No formal order or other notice is required. (Code Civ. Proc., § 1019.5; Cal. Rules of Court, rule 3.1312.)