Jeff Delgado vs. State Water Resources Control Board

34-2016-00189982-CU-OE-GDS: Jeff Delgado vs. State Water Resources Control Board 08/02/2024 Hearing on Demurrer to Plaintiff's Complaint in Department 54

Tentative Ruling

NOTICE:

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34-2016-00189982-CU-OE-GDS: Jeff Delgado vs. State Water Resources Control Board 08/02/2024 Hearing on Demurrer to Plaintiff's Complaint in Department 54

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TENTATIVE RULING

Defendants Sriram Iyer, and Serena Diaz’s (“Defendants”) Demurrer to Plaintiff Jeff Delgado’s (“Plaintiff”) First Amended Complaint (“FAC”) is ruled upon as follows.

The Court notes that the moving parties on this demurrer are listed as Defendants California Department of Corrections and Rehabilitation, Sriram Iyer, and Serena Diaz, however, the California Department of Corrections and Rehabilitation is not a party in this matter.

The parties’ unopposed requests for judicial notice are granted for the purposes appropriate for judicial notice. (See Evid. Code § 452, subd. (d); see also Johnson & Johnson v. Superior Court (2011) 192 Cal.App.4th 757, 768 [court may take judicial notice of the existence of court documents but not to the truth of the statements contained therein].)

Factual Background

This case pertains to the employment of Plaintiff and alleged disability discrimination by Defendants State Water Resources Control Board, Sriram Iyer, and Serena Diaz

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2016-00189982-CU-OE-GDS: Jeff Delgado vs. State Water Resources Control Board 08/02/2024 Hearing on Demurrer to Plaintiff's Complaint in Department 54

(“Defendants”). Plaintiff alleges that Defendants failed to provide reasonable accommodations and then wrongfully terminated Plaintiff in retaliation for seeking accommodations. Plaintiff’s operative FAC alleges causes of action for: (1) disability discrimination; (2) failure to engage in timely good faith, interactive process; (3) failure to accommodate; (4) failure to prevent; (5) harassment; (6) retaliation; and (7) wrongful termination in violation of public policy.

Plaintiff’s complaint alleges that he began his employment with Defendant State Water Resources Control Board (“Water Board”) on or around April 1, 1999. (FAC, ¶ 11.) Plaintiff suffers from ongoing back issues relating to an injury which occurred in 1992. (FAC, ¶ 13.) In 2012, Plaintiff received a medical exam, following which his physician concluded that he was permanently disabled, as the result of this injury, which required further treatment. (FAC, ¶ 15.) Plaintiff informed Water Board of his disability, as well as reasonable accommodations required by his physicians. (FAC, ¶¶ 17-19.) Defendants failed to provide the requested accommodations, and engaged in a pattern of harassment and discrimination against Plaintiff in retaliation. (FAC, ¶ 20.) Water Board terminated Plaintiff on or around December 20, 2021. (FAC, ¶ 21.)

Plaintiff first filed another Sacramento County suit on February 2, 2016 (Delgado v. Water Resources Control Board, Case Number 34-2016-00189982), alleging discrimination, harassment, and retaliation. (RFJN, Ex. A.) On August 6, 2018, the Court granted Water Board’s motion for summary adjudication in part, limiting Plaintiff’s claims “to events that occurred after the May 2014 right-to-sue notice and within one year prior to his January 2016 DFEH claim.” (RFJN, Ex. B, p. 3.) Plaintiff filed an amended complaint on August 7, 2018.

Plaintiff subsequently filed charges with the California Department of Fair Employment and Housing (“DFEH”) on March 17, 2017 and April 8, 2021, and received right-to-sue notices. (RFJN, Exs. C, D, G, H, I.) Plaintiff submitted another complaint on or around November 1, 2023, and received a right-to-sue letter. (Opposition RFJN, Ex. A.)

Plaintiff filed the action from which this demurrer arises on June 9, 2022. On the motion of Water Board, the Court consolidated the two action on May 3, 2024.

Defendants demur to Plaintiff’s complaint on the grounds that: (1) causes of action 1-6 fails to state facts, as the case falls outside the limitations period to state a claim under FEHA; (2) Plaintiffs Iyer and Diaz demur to Plaintiff’s first, second, third, fourth, and sixth causes of action on the ground that the Court lacks jurisdiction over this claim as to individual defendants; (3) causes of action 1-6 are uncertain; (4) Plaintiff’s fifth cause

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2016-00189982-CU-OE-GDS: Jeff Delgado vs. State Water Resources Control Board 08/02/2024 Hearing on Demurrer to Plaintiff's Complaint in Department 54

of action is barred by another action pending between the parties for the primary rights; and (5) the seventh cause of action is barred against public entities and their employees. Plaintiff opposes.

Legal Standard

In reviewing the sufficiency of a complaint against a general demurrer, the Court is guided by long-settled rules.

“‘[The Court] treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.’ [Citation.]” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The Court “‘also consider[s] matters which may be judicially noticed.’ [Citation.]” (Ibid.) “No other extrinsic evidence can be considered (i.e., no ‘speaking demurrers’).” (Weil & Brown, Cal. Practice Guide: Civ. Procedure Before Trial (The Rutter Group 2021 update) ¶ 7:8 [citing cases].) Further, the Court “give[s] the complaint a reasonable interpretation, reading it as a whole and its parts in their context.” (Blank, supra, at p. 318.)

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, 778.) “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.) 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.)

Discussion

Wrongful Termination Against a Public Agency

Defendants argue that Plaintiff’s seventh cause of action for wrongful termination is barred against public entities. Plaintiff does not respond to this ground for demurrer, and thus the Court construes Plaintiff’s failure to oppose the demurrer as a concession on the merits. (D.I. Chadbourne, Inc. v. Superior Court (1964) 60 Cal.2d 723, 728, fn. 4 [where nonmoving party fails to oppose a ground for a motion “it is assumed that [nonmoving party] concedes” that ground].)

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2016-00189982-CU-OE-GDS: Jeff Delgado vs. State Water Resources Control Board 08/02/2024 Hearing on Demurrer to Plaintiff's Complaint in Department 54

Government Code section 815 provides that except where “provided by statute [a] public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person.”

Thus, given Plaintiff’s lack of opposition, Defendant’s demurrer on this ground is SUSTAINED, with leave to amend.

Liability for Individuals under FEHA

Defendant next demurs to the first, second, third, fourth, and sixth causes of action on the grounds that the individual defendants cannot be held individually liable for those claims. Plaintiff does not oppose this ground, and thus it is SUSTAINED, with leave to amend.

Statute of Limitations

Defendants argue that the events described in the FAC fall outside of the relevant statutes of limitations, and that Plaintiff fails to state facts within the relevant period sufficient to support his causes of action. However, the Court notes that while Defendants argue in their memorandum of points and authorities that “Plaintiff fails to state facts sufficient to state any causes of action” because they are time barred, Defendants’ notice of motion brings this ground for demurrer only as to causes of action 1-6, and not as to the seventh cause of action. Therefore, the Court considers only this ground as to the first six causes of action.

Plaintiff opposes, arguing that the misconduct took place between November 1, 2020 and December 20, 2021, and thus is within the statute of limitations period for each cause of action.

A demurrer based on statute of limitations is essentially a general demurrer for failure to state a cause of action. (Kendrick v. City of Eureka (2000) 82 Cal.App.4th 364, 367; see Code Civ. Proc. § 430.10(e).) Similarly, “[w]hen a ground for objection to a complaint, such as the statute of limitations, appears on its face ... a demurrer on that ground is proper.” (Hightower v. Roman Catholic Bishop of Sacramento (2006) 142 Cal.App.4th 759, 765, citing Code Civ. Proc. § 430.30(a).) Thus, a demurrer on statute of limitations grounds is often difficult to sustain. For one, “when the relevant facts are not clear such that the cause of action might be, but is not necessarily, time-barred, the demurrer will be overruled.” (Coalition for Clean Air v. City of Visalia (2012) 209 Cal.App.4th 408,

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2016-00189982-CU-OE-GDS: Jeff Delgado vs. State Water Resources Control Board 08/02/2024 Hearing on Demurrer to Plaintiff's Complaint in Department 54

420.) Moreover, “for a demurrer based on the statute of limitations to be sustained, the untimeliness of the lawsuit must clearly and affirmatively appear on the face of the complaint and matters judicially noticed.” (Ibid.)

Government Code section 12965 provides that civil suits must be brought within one year after filing a complaint with a government agency. (Gov. Code § 12965(a)(5)(C).) Defendants contend that the Court need not consider events that occurred prior to April 8, 2021, because Plaintiff received a right-to-sue letter on April 8, 2021, informing him that he had one year to sue for the conduct described in his DFEH complaint, but failed to bring a suit based on those claims during this time period. (Citing to Gov.

Code § 12965(b).) Plaintiff, in turn, cites to his November 2023 complaint to the DFEH, arguing that the resulting right-to-sue notice from this complaint covers events going back to November 1, 2020. The case of Acuna v. San Diego Gas & Electric Co. (2013) 217 Cal.App.4th 1402 is instructive here. In Acuna, the plaintiff filed three complaints with the DFEH but filed her lawsuit only after the third complaint. (Id., at p. 1419.) The court concluded that Acuna was entitled to proceed only on claims which occurred from only one year prior to her final complaint onward.

Similarly, Plaintiff “cannot revive these expired claims by filing a new DFEH complaint many years after the alleged racial discrimination took place.” (Id., at p. 1417.)

In sum, Plaintiff’s claims in the instant action are limited to those occurring after April 8, 2021, because those claims were effectively time barred when Plaintiff failed to bring a lawsuit within a year of receiving a right-to-sue letter on April 8, 2021. As explained in Acuna, “Section 12965 concerns a separate statutory deadline applicable after the DFEH issues a right-to-sue notice,” this “deadline from the right-to-sue notice is ‘a condition on a substantive right rather than a procedural limitation period for commencement of an action.’ ” Plaintiff here failed to meet that condition and thus “the right which previously arose and on which a suit could have been maintained, [has] expire[d].” (Acuna v.

San Diego Gas & Electric Co., supra, 217 Cal.App.4th at p. 1413.) Further as explained in Acuna, the filing of a new government complaint with the DFEH does not revive those claims which were contained in his April 2021 complaint.

However, the statutory time bar as to Plaintiff's prior claims does not bar his subsequent claims that allege similar misconduct occurring after his prior DFEH complaint expired. For example, simply because Plaintiff's discrimination claims based upon conduct occurring before April 8, 2021 are now barred by his failure to bring suit upon them, does not mean that similar discriminatory conduct occurring thereafter is immune from suit.

The Court next turns to Defendants’ argument that Plaintiff deliberately omitted dates

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2016-00189982-CU-OE-GDS: Jeff Delgado vs. State Water Resources Control Board 08/02/2024 Hearing on Demurrer to Plaintiff's Complaint in Department 54

from his FAC in an attempt to circumvent the relevant statute of limitations, as he knows the relevant events took place more than one year prior to the filing of his complaint. Plaintiff fails to respond to this argument, stating in response only that acts that occurred between November 1, 2020 and April 8, 2021 are not time-barred. Plaintiff identifies no specific facts, nor the dates upon which they occurred. In contrast, Plaintiff’s amended complaint in the 2016 action cites to specific dates upon which each accommodation was requested. This list is identical in the instant FAC, merely with the dates omitted. This, coupled with the lack of opposition on this issue, indicates to the Court on the face of matters judicially noticeable that many of the acts described in the FAC are time barred. (See Hendy v. Losse (1991) 54 Cal.3d 723, 742–743.)

Defendants acknowledge that Plaintiff has alleged his termination occurred on December 21, 2021, which is within the time period for the statute of limitations. (Mot., p. 12:13-14 [“The only fact that is clearly within the April 9, 2021, through December 20, 2021 statutory-time period is the December 20, 2021, involuntary resignation.”].)

The Court concludes Plaintiff has sufficiently pled those causes of action which rely upon his termination as the adverse employment action. However, the FAC fails to statute sufficient facts as to the causes of action for which are not supported by Plaintiff’s termination.

Based on the foregoing, Defendants’ demurrer for statute of limitations is SUSTAINED as to causes of action 1-5, and is OVERRULED as to the sixth cause of action.

Uncertainty

Defendants demur on the ground that causes of action one through six are fatally uncertain, as the FAC does not specify which facts correlate with which elements of each cause of action and relies on legal conclusions.

“A special demurrer for uncertainty is not intended to reach the failure to incorporate sufficient facts in the pleading, but is directed at the uncertainty existing in the allegations actually made.” (People v. Lim (1941) 18 Cal.2d 872, 883.) “Such a demurrer should not be sustained where the allegations of the complaint are sufficiently clear to apprise the defendant of the issues which he is to meet.” (Ibid.) “Uncertainty arising out of the legal effect of facts alleged is not a ground for demurrer.” (James v. Herbert (1957) 149 Cal.App.2d 741, 750.) A demurrer for uncertainty does not lie as to immaterial matters or facts that are presumptively within the knowledge of the demurring parties. (Dumm v. Pacific Valves (1956) 146 Cal.App.2d 792, 799.) A special demurrer must be disregarded where it fails to specify the particular allegations or

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2016-00189982-CU-OE-GDS: Jeff Delgado vs. State Water Resources Control Board 08/02/2024 Hearing on Demurrer to Plaintiff's Complaint in Department 54

defects giving rise to the demurrer. (Taliaferro v. Salyer (1958) 162 Cal.App.2d 685, 688.)

Demurrers for uncertainty are disfavored and only sustained where the pleading is so muddled that the defendant cannot reasonably respond. The favored approach is to clarify any uncertainty or ambiguity through discovery. (Khoury v. Maly's of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.)

Here, Defendants fail to identify the particular allegations or defects which give rise to a demurrer for uncertainty. Further, the FAC is not so muddled that Defendants cannot reasonable respond. Therefore, the demurrer as to uncertainty is OVERRULED.

Concurrent Action

While Defendants raise the issue of concurrent jurisdiction in their notice of motion as to the fifth cause of action, there is no argument in their memorandum of points and authorities on this issue, nor do Defendants cite any authority in support of this ground for demurrer. Therefore, the demurrer on this ground is OVERRULED.

Disposition

For the foregoing reasons, Defendants’ demurrer is SUSTAINED as to the seventh cause of action; SUSTAINED as to the individual defendants on the first, second, third, fourth, and sixth causes of action on the grounds that the individual defendants cannot be held individually liable for those claims; and SUSTAINED on statute of limitations grounds on causes of action 1-5. Defendants’ demurrer is OVERRULED on the grounds of uncertainty and concurrent action, and on the grounds of statute of limitations as to cause of action six.

Where Defendants’ demurrer is sustained, leave to amend is granted, as the Court is not yet convinced that Plaintiff could not amend to properly state his claims. Plaintiff may file and serve an amended complaint no later than August 12, 2024. Although not required by statute or court rule, Plaintiff is directed to present the clerk a copy of this ruling at the time of filing the Second Amended Complaint. Defendant may file and serve a response within 30 days of service of the Second Amended Complaint, 35 days if served by mail.

The minute order is effective immediately. No formal order pursuant to California Rules of Court, rule 3.1312 or further notice is required.

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2016-00189982-CU-OE-GDS: Jeff Delgado vs. State Water Resources Control Board 08/02/2024 Hearing on Demurrer to Plaintiff's Complaint in Department 54