Jeff Delgado vs. State Water Resources Control Board

34-2016-00189982-CU-OE-GDS: Jeff Delgado vs. State Water Resources Control Board 11/06/2024 Hearing on Demurrer to Plaintiff's Second Amended Complaint in Department 54

Tentative Ruling

Defendants State Water Resources Control Board (the “Water Board”), Sriram Iyer (“Iyer”), and Serena Diaz’ (“Diaz”) (collectively, “Defendants”) demurrer to plaintiff Jeff Delgado’s (“Plaintiff”) Second Amended Complaint (“2AC”) is ruled upon as follows.

The Court notes that Defendants’ notice of motion erroneously lists the California Department of Corrections and Rehabilitation (“CDCR”) as a moving defendant instead of the State Water Resources Control Board. CDCR is not a party in this action.

Defendants’ request for judicial notice is granted.

This is an employment action. Plaintiff alleges that Defendants failed to provide reasonable accommodations and then wrongfully terminated his employment on December 20, 2021, in retaliation for seeking accommodations. Plaintiff’s 2AC alleges causes of action for: (1) disability discrimination; (2) failure to engage in a timely good faith, interactive process; (3) failure to accommodate; (4) failure to prevent; (5) harassment; and (6) retaliation.

The 2AC alleges that Plaintiff began his employment with the Water Board on or around April 1, 1999. (2AC, ¶ 11.) Plaintiff suffers from ongoing back issues relating to an injury which occurred in 1992. (2AC, ¶ 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. (2AC, ¶ 15.) Plaintiff informed the Water Board of his disability, as well as reasonable accommodations required by his physicians. (2AC, ¶¶ 17-19.) Defendants failed to provide the requested accommodations, and engaged in a pattern of harassment and discrimination against Plaintiff in retaliation. (2AC, ¶ 20.) Water Board terminated Plaintiff on or around December 20, 2021. (2AC, ¶ 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 the 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 a First Amended Complaint (“1AC”) 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 DFEH complaint on or

34-2016-00189982-CU-OE-GDS: Jeff Delgado vs. State Water Resources Control Board 11/06/2024 Hearing on Demurrer to Plaintiff's Second Amended Complaint in Department 54

around November 1, 2021, and received a right-to-sue letter. (Opposition RFJN, Ex. K.)

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

Defendants previously demurred to the 1AC on the grounds, among others, that the first through sixth causes of action failed to state facts sufficient to state a claim within the limitations period. The Court sustained the demurrer on this ground as to the first through fifth causes of action only and granted leave to amend. The Court overruled the demurrer on this ground as to the sixth cause of action.

Defendants contend the 2AC does not rectify the prior deficiencies, and Defendants’ notice of motion states they are demurring to each cause of action on the grounds each “fails to state facts within the limitations period sufficient to state a claim.” (See Notice of Demurrer.) Although the notice of motion indicates the demurrer is directed towards the sixth cause of action, the Court previously overruled the demurrer on this ground as to the sixth cause of action and Plaintiff did not amend that cause of action. Accordingly, to the extent the demurrer is purportedly brought against the sixth cause of action, it is once again OVERRULED for the same reasons previously set forth by the Court in the prior demurrer.

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.) Extrinsic evidence may not properly be considered on demurrer or on a motion to strike. (Ion Equipment Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881; Hibernia Savings & Loan Soc. v. Thornton (1897) 117 Cal. 481, 482.)

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.)

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2016-00189982-CU-OE-GDS: Jeff Delgado vs. State Water Resources Control Board 11/06/2024 Hearing on Demurrer to Plaintiff's Second Amended Complaint in Department 54

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.) 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

Defendants’ notice of motion challenges each cause of action on the grounds that it fails to allege facts within the limitations period. Despite this, Defendants’ memorandum to some extent appears to expand beyond the notice to argue that Plaintiff has also generally failed to state facts sufficient to constitute a cause of action. Courts generally may consider only the grounds stated in the notice of motion and cannot grant different relief, or relief based on different grounds, from those specified in the notice of motion. (Luri v. Greenwald (2003) 107 Cal.App.4th 1119, 1125.) Based on the notice of motion, the Court will only consider whether or not the Complaint sufficiently alleges a claim within the limitations period.

A demurrer based upon the statute of limitations lies where the dates in question are shown on the face of the complaint, or from matters upon which the Court may take judicial notice. A demurrer based on an affirmative defense cannot properly be sustained where the action might be barred by the defense, but is not necessarily barred. (See, e.g., Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403.)

Defendants contend the 2AC “is essentially a duplicate of [Plaintiff’s] previous complaints, with the addition of one conclusory paragraph (repeated verbatim for each cause of action) about events that allegedly took place at some unspecified time after the onset of the COVID-19 pandemic.” (Memorandum at 5:15-18.) Defendants posit that “[t]he SAC still lacks sufficient details to enable the court to determine whether it has jurisdiction over any additional alleged acts. It is impossible to ascertain whether these post-COVID 19 acts occurred between March 2020 through April 8, 2021 (outside the statutory time period) or if they occurred after April 8, 2021, and December 20, 2021 (within the statutory time period).” (Memorandum at 5:18-22.)

The paragraph Plaintiff added as to the first through fifth causes of action provides:

“In or about March 2020 the Covid Virus affected the State of California such that

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2016-00189982-CU-OE-GDS: Jeff Delgado vs. State Water Resources Control Board 11/06/2024 Hearing on Demurrer to Plaintiff's Second Amended Complaint in Department 54

the State ordered employees, including plaintiff, to work entirely at home pursuant to State telework guidelines. Plaintiff teleworked at home pursuant to State's directives until he was wrongfully terminated on or about December 20, 2021. During this time Plaintiff performed his work competently and satisfactorily as well as, if not better, than when working in the office. Defendant / (1st COA) discriminated against / (2nd COA) failed to engage in a timely good faith interactive process with plaintiff to implement reasonable accommodations/ (3rd COA) failed to provide reasonable accommodations to plaintiff to enable him to perform the essential functions of his job/ (4th COA) failed to take all steps to prevent discrimination, harassment, and retaliation based on disability against Plaintiff/ (5th COA) subjected plaintiff to harassment based on his disability by:

a. Demanding Plaintiff cease teleworking at home and return to work at the office based on false 'operational needs.' b. Treating Plaintiff differently than other employees regarding telework; c. Arbitrarily denying/eliminating Plaintiffs telework privileges. d. Disregarding work restrictions established by Plaintiff’s physicians which included reduced work hours. e. Treating Plaintiff differently than other employees regarding use of leave. f. Applying inconsistent and differing telework policies to plaintiff as compared to other employees. g.

Applying inconsistent and differing use of sick leave policies to plaintiff as compared to other employees. h. Applying an inconsistent, unreasonable and arbitrary time frame within which Plaintiff was required to provide medical documentation when taking sick leave. i. Falsely accusing Plaintiff of being AWOL. j. Initiating and moving forward with an AWOL action despite Plaintiff within a reasonable timeframe providing medical substantiation justifying his sick leave. k. Applying inconsistent, unreasonable and arbitrary AWOL policies and standards to plaintiff as compared to other employees. l.

Refusing Plaintiff's reasonable request to withdraw the AWOL action initiated against him.” (2AC ¶¶ 29, 36, 41, 48, 54.)

Plaintiff filed an untimely opposition one day late without explanation. Despite its untimeliness, the Court in its discretion has considered the opposition, but future disregard of filing deadlines may lead to untimely filings not being considered.

Plaintiff contends the causes of action are all premised, in part, upon his wrongful

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2016-00189982-CU-OE-GDS: Jeff Delgado vs. State Water Resources Control Board 11/06/2024 Hearing on Demurrer to Plaintiff's Second Amended Complaint in Department 54

termination on December 20, 2021, which both sides concede falls within the applicable statute of limitations, and therefore, the demurrer must be overruled.

A general demurrer does not lie to only part of a cause of action. (Daniels v. Select Portfolio Servicing, Inc. (2016) 246 Cal.App.4th 1150, 1167; see, e.g., PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1682-1683; Mendoza v. Continental Sales Co. (2006) 140 Cal.App.4th 1395, 1402 [when pleader is in doubt about what can be established by the evidence, the modern practice allows the party to plead in the alternative].)

Here, although not pled as specifically or clearly as possible, the Court cannot conclude as a matter of law that Plaintiff’s claims for (1) disability discrimination; (2) failure to engage in a timely good faith, interactive process; (3) failure to accommodate; and (4) failure to prevent are absolutely barred by the applicable limitations period because Plaintiff has now alleged these causes of action are premised, in part, upon his claim that he was wrongfully terminated on December 20, 2021, which both parties concede falls within the applicable limitations period. As a result, the demurrer to the first through fourth causes of action is OVERRULED.

However, the cause of action for harassment is distinguishable from the other causes of actions. To establish a prima facie case of harassment, Plaintiff must demonstrate: (1) he is a member of a protected class; (2) he was subjected to unwelcome harassment; (3) the harassment was based on his protected class status; (4) the harassment unreasonably interfered with his work performance by creating an intimidating, hostile, or offensive work environment; and (5) the employer is liable for the harassment. (Thompson v. City of Monrovia (2010) 186 Cal.App.4th 860, 876.) The plaintiff must show a concerted pattern of a repeated, routine, or a generalized nature. (Jones v. Department of Corrections & Rehabilitation (2007) 152 Cal.App.4th 1367, 1377.) A single act of wrongful termination does not fall within the definition of harassment.

In Serri v. Santa Clara University, the court explained that harassment actionable under the FEHA consists of conduct that is not necessary to one's job performance and is “presumably engaged in for personal gratification, because of meanness or bigotry, or for other personal motives.” (Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 869 (hereafter Serri).) Harassment is distinguishable from discrimination because the latter refers “to bias in the exercise of official actions on behalf of the employer.” (Ibid.)

The court in Serri recognized that the “Legislature intended that commonly necessary personnel management actions related to hiring and firing, job or project assignments, office or work station assignments, promotion or demotion, performance evaluations, the provision of support, the assignment or non-assignment of supervisory functions, deciding who will and who will not attend meetings, deciding who will be laid

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2016-00189982-CU-OE-GDS: Jeff Delgado vs. State Water Resources Control Board 11/06/2024 Hearing on Demurrer to Plaintiff's Second Amended Complaint in Department 54

off, and the like, do not come within the meaning of harassment.” (Serri, supra, 226 Cal.App.4th at p. 870.) Harassment relates to “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.” (Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 63.)

Thus, Plaintiff cannot rely upon his allegation that he was terminated on December 20, 2021, as the basis for his claim for harassment and the other alleged acts do not state when they occurred such that it is clear they fall within the applicable statute of limitations. Accordingly, the demurrer to the fifth cause of action for harassment is SUSTAINED. Leave to amend is DENIED because this is not the first challenge to the pleading and Plaintiff has failed to establish a reasonable possibility exists that the defect can be cured by amendment.

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

NOTICE:

Consistent with Local Rule 1.06(B), any party requesting oral argument on any matter on this calendar must comply with the following procedure:

To request limited oral argument, on any matter on this calendar, you must call the Law and Motion Oral Argument Request Line at (916) 874-2615 by 4:00 p.m. the Court day before the hearing and advise opposing counsel. At the time of requesting oral argument, the requesting party shall leave a voice mail message: a) identifying themselves as the party requesting oral argument; b) indicating the specific matter/motion for which they are requesting oral argument; and c) confirming that it has notified the opposing party of its intention to appear and that opposing party may appear via Zoom using the Zoom link and Meeting ID indicated below. If no request for oral argument is made, the tentative ruling becomes the final order of the Court.

Unless ordered to appear in person by the Court, parties may appear remotely either telephonically or by video conference via the Zoom video/audio conference platform with notice to the Court and all other parties in accordance with Code of Civil Procedure 367.75. Although remote participation is not required, the Court will presume all parties are appearing remotely for non-evidentiary civil hearings. The Department 53/54 Zoom Link is https://saccourt-ca-gov.zoomgov.com/my/sscdept53.54 and the Zoom Meeting ID is 161 4650 6749. To appear on Zoom telephonically, call (833) 568-8864 and enter the Zoom Meeting ID referenced above. NO COURTCALL APPEARANCES WILL BE ACCEPTED.

Parties requesting services of a court reporter will need to arrange for private court reporter services at their own expense, pursuant to Government code §68086 and California Rules of Court, Rule 2.956. Requirements for requesting a court reporter are listed in the Policy for Official Reporter Pro Tempore available on the Sacramento Superior Court website at https://www.saccourt.ca.gov/court-reporters/docs/crtrp-6a.pdf. Parties may contact Court- Approved Official Reporters Pro Tempore by utilizing the list of Court Approved Official Reporters Pro Tempore available at https://www.saccourt.ca.gov/court-reporters/docs/crtrp-13.Pdf

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2016-00189982-CU-OE-GDS: Jeff Delgado vs. State Water Resources Control Board 11/06/2024 Hearing on Demurrer to Plaintiff's Second Amended Complaint in Department 54

A Stipulation and Appointment of Official Reporter Pro Tempore (CV/E-206) is required to be signed by each party, the private court reporter, and the Judge prior to the hearing, if not using a reporter from the Court’s Approved Official Reporter Pro Tempore list.

Once the form is signed it must be filed with the clerk. If a litigant has been granted a fee waiver 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 be forward the form to the Court Reporter’s Office and an official reporter will be provided.