Victor-Hugo Marroquin v. Los Angeles Unified School District, Jorge Amador, Norma Alvarez, and Jose Castelo

lodged a proposed Answer with the Motion and ask that it be deemed filed. (Elam Decl., P. 17, Ex. C.) Defendants shall instead serve and file the Answer within 10 days of this date.

NATURE OF PROCEEDINGS: Hearing on Demurrer -- with Motion to Strike The Demurrer is sustained as to the Second Cause of Action and is otherwise overruled. The Motion to Strike is granted as to paragraph 2 of the prayer, and is otherwise denied. Plaintiff has 20 days leave to amend.

BACKGROUND Plaintiff Victor-Hugo Marroquin (Plaintiff) filed this action against Los Angeles Unified School District (the District), Jorge Amador (Amador), Norma Alvarez (Alvarez), and Jose Castelo (Castelo) (collectively, "Defendants"), alleging that the District suspended him without pay and then terminated his employment as a substitute teacher because he is male and because he complained about treatment he received during the District's investigation and suspension of him.

The causes of action in the First Amended Complaint (FAC) are: (1) Discrimination in Violation of the FEHA; (2) Hostile Work Environment Harassment in Violation of the FEHA; (3) Retaliation in Violation of the FEHA; (4) Failure to Prevent Discrimination, Harassment, or Retaliation in Violation of FEHA; and (5) Whistleblower Retaliation (Labor Code Section 1102.5). Defendants filed a Demurrer and a Motion to Strike. Plaintiff filed an Opposition to each.

LEGAL STANDARD A demurrer tests the legal sufficiency of the pleading. The Court treats the demurrer "as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law," considers matters subject to judicial notice, and gives the complaint "a reasonable interpretation, reading it as a whole and its parts in their context." (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

In construing a pleading, "its allegations must be liberally construed, with a view to substantial justice between the parties." (Code Civ. Proc., Sec. 452.) A trial court errs in sustaining a demurrer where the plaintiff has stated a cause of action under any possible legal theory. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967.)

The Court may strike any irrelevant, false, or improper matter inserted in a pleading, and "all or any part of any pleading" not drawn or filed in conformity with the laws of this state, a court rule, or a court order. (Code Civ. Proc., Sec. 436.) An immaterial allegation includes "[a] demand for judgment requesting relief not supported by the allegations of the complaint." (Code Civ. Proc., Sec. 431.10, subd. (b)(3).) Immaterial allegations are irrelevant matter within the meaning of section 436. (Code Civ. Proc., Sec. 431.10, subd. (c).)

DEMURRER I. Discrimination Defendants argue that the First Cause of Action fails because the FAC pleads no facts showing that any adverse employment action was taken because of Plaintiff's sex. (Dem., at p. 10:19-21.)

"The elements of a prima facie case of discrimination vary depending on the particular facts. Generally, the plaintiff must provide evidence that he or she (1) was a member of a protected class; (2) was qualified for the position sought or was performing competently in the position already held; (3) suffered an adverse employment action, such as termination, demotion, or denial of an available job; and (4) some other circumstance suggests discriminatory motive." (Brown v. Los Angeles Unified School Dist. (2021) 60 Cal.App.5th 1092, 1105.)

Here, the FAC alleges that Plaintiff is male, that he performed his duties competently and was frequently requested to cover classes, and that he was suspended without pay in March 2022, suspended without pay a second time in March 2024, and terminated effective February 24, 2025. (FAC, P.P. 11, 12, 13a, 14c, 14k.) Those allegations satisfy the first three elements, and Defendants challenge only the fourth.

The FAC alleges that when female students made complaints involving Plaintiff, the District presumed wrongdoing on his part, on the stereotype that a young male teacher accused by a female student is inherently suspect. (FAC, P. 13a.) It alleges that the student who recorded Plaintiff without his knowledge and posted the recording received no comparable immediate punishment. (FAC, P. 14d.) It alleges that female substitute teachers who were the subject of student complaints of comparable or greater severity were not immediately suspended without pay, were not investigated for nearly a year without notice of the charges and were not terminated. (FAC, P. 14w.)

It further alleges that the District treated the 2022 episode as a standing mark against Plaintiff when the second investigation opened, though he had been cleared of wrongdoing and merely reprimanded. (FAC, P. 14g.) It adds, on information and belief, that no such mark would have attached to a female teacher. (FAC, P. 14k.)

Defendants characterize those allegations as Plaintiff's subjective belief, which they contend the Court may disregard. (Dem., at p. 11:6-8.) The six passages Defendants collect in support are quoted from the original Complaint, and three of them do not appear in the operative pleading. (Dem., at pp. 10:27 - 11:5.) What Plaintiff "felt" about the way he was treated describes his state of mind and establishes nothing about the District's. (FAC, P.P. 14e, 14s.)

The comparator allegations are not statements of feeling. A pleaded comparison between the District's treatment of male and female employees accused of student misconduct is a factual allegation, the ordinary circumstance from which a discriminatory motive is inferred. That the comparator allegations are pleaded on information and belief does not defeat them. A plaintiff must plead ultimate facts rather than evidentiary facts and may plead on information and belief. (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 549-550.) The District, not Plaintiff, holds the personnel records showing how it handled student complaints against other substitute teachers. Accordingly, the Demurrer to the First Cause of Action is overruled.

II. Harassment Defendants challenge the Second Cause of Action on the ground that the FAC alleges no severe or pervasive conduct and nothing directed at Plaintiff because he is male. (Dem., at p. 11:27-28, p. 12:1-3.) They further argue that what the FAC does allege is personnel management. (Dem., at p. 12:5-7.)

"To establish a prima facie case of a hostile work environment, [a plaintiff] must show that (1) [he] is a member of a protected class; (2) [he] was subjected to unwelcome harassment; (3) the harassment was based on [his] protected status; (4) the harassment unreasonably interfered with [his] work performance by creating an intimidating, hostile, or offensive work environment; and (5) defendants are liable for the harassment." (Ortiz v. Dameron Hospital Assn. (2019) 37 Cal.App.5th 568, 581.)

The question on demurrer is whether the FAC alleges ultimate facts as to each of those elements. The Act separates harassment from discrimination. "[D]iscrimination refers to bias in the exercise of official actions on behalf of the employer, and harassment refers to bias that is expressed or communicated through interpersonal relations in the workplace." (Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 707.) "Making a personnel decision is conduct of a type fundamentally different from the type of conduct that constitutes harassment." (Reno v. Baird (1998) 18 Cal.4th 640, 646, quoting Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 63-65.)

Plaintiff argues that the line between harassment and discrimination does not categorically exclude personnel decisions from a harassment claim. (Opp. to Dem., at p. 7:8-17.) Discrimination and harassment "are sometimes closely interrelated, and even overlapping, particularly with regard to proof." (Roby, supra, 47 Cal.4th at p. 707.) An official employment action can itself convey a biased message. In Miller v. Department of Corrections (2005) 36 Cal.4th 446, 459-460, a supervisor's promotions and favorable assignments were the whole of the conduct, and the claim was one for harassment even so.

The supervisor had "used those official actions as his means of conveying his offensive message." (Roby, supra, 47 Cal.4th at p. 708.) Official actions taken in furtherance of a managerial role "can also have a secondary effect of communicating a hostile message," which "occurs when the actions establish a widespread pattern of bias." (Id. at p. 709.)

Here, the conduct the FAC identifies as harassing is the District's handling of two investigations into Plaintiff. Amador cancelled Plaintiff's assignments and imposed an unpaid suspension in 2022, imposed a second unpaid suspension in 2024, and responded to Plaintiff's inquiries sporadically and coldly through the months that followed. (FAC, P.P. 14c, 14i, 14k, 14l.) Alvarez told Plaintiff he was under investigation, said the District had a 90 to 120 school-day window to resolve it, and instructed him to contact no one but her. (FAC, P. 14n.)

The District let that window pass without issuing findings, and the FAC alleges that the lapse reflected a presumption that the accusation of a female student justified excluding a male teacher indefinitely. (FAC, P.P. 14p, 14q.) Castelo took over as the point of contact without having been briefed on the matter, and Plaintiff's District email access was cut off. (FAC, P.P. 14x, 14y.)

Taken as true, those allegations describe an employer acting on a gender-based presumption, the discrimination the First Cause of Action alleges. The favoritism in Miller was carried on openly, so the employees who were passed over could read from it what management thought of them. (Miller, supra, 36 Cal.4th at pp. 470-471.) The FAC pleads no counterpart, alleging instead that the District acted on the presumption without announcing it. (FAC, P.P. 13a, 14q.) Nothing in the comparator allegation says that Plaintiff or anyone else at work observed or learned how those other matters were handled. (FAC, P. 14w.) A pattern of decisions that conveys nothing to the workplace is a pattern of discrimination, not harassment.

Three allegations describe statements made to Plaintiff in the course of those investigations. The FAC alleges that Amador told Plaintiff the second matter had to be investigated because he had a "previous issue," which refers to the 2022 investigation and says nothing about Plaintiff's sex. (FAC, P. 14k.) It alleges that a teacher's assistant told Plaintiff that the questions Edelman asked staff during the 2022 investigation suggested Edelman was looking for any indication that he had behaved inappropriately with female students. (FAC, P. 14m.)

A plaintiff may rely on harassing conduct he learned of rather than witnessed, but that rule concerns awareness of harassing conduct, and what Plaintiff learned was how an investigation had been conducted, which is an official act. (Beyda v. City of Los Angeles (1998) 65 Cal.App.4th 511, 520-521.) The FAC alleges that Alvarez instructed Plaintiff to speak to no one but her, an instruction that concerns the conduct of an investigation and communicates nothing about sex. (FAC, P. 14n.)

In Doe v. Department of Corrections & Rehabilitation (2019) 43 Cal.App.5th 721, 734-735, the plaintiff identified a hostile performance meeting, a wellness check, a denied request to leave early, a search for a contraband cell phone, and an unwelcome duty assignment. The Court of Appeal held the claim failed. "[E]ach one involved a personnel decision by Dr. Castro within the scope of his duties as Doe's supervisor," and "the behavior Doe identifies is not harassment because it was not avoidable conduct superfluous to Dr. Castro's job description." (Id. at p. 737.) The conduct alleged here is the same kind: suspending an employee pending investigation, opening and staffing that investigation and missing its deadlines, and limiting the employee's contacts and system access while it is open.

Plaintiff contends that Amador's changed behavior, the instruction not to contact anyone, and the blocking of email access are not routine personnel actions. (Opp. to Dem., at p. 7:18-21.) The Court need not decide whether Amador's coldness and unresponsiveness fall outside personnel management, because nothing pleaded about that conduct communicates a message about Plaintiff's sex. Plaintiff also invokes Government Code section 12923, which defines harassing conduct by what it communicates to the employee, provides that a single incident may suffice, and requires assessment of the totality of the circumstances. (Gov. Code, Sec. 12923, subds. (a), (b), (c); Opp. to Dem., at p. 6:6-12.) The Court has taken the pleaded course of conduct as a whole.

Plaintiff responds that severity is a question of fact unsuited to demurrer. (Opp. to Dem., at p. 7:22-24.) Severity and pervasiveness measure harassing conduct, and whether the FAC alleges harassing conduct at all is a question of law appearing on the face of the pleading. The FAC does not allege unwelcome harassment based on Plaintiff's sex. Accordingly, the Demurrer to the Second Cause of Action is sustained with leave to amend.

III. Claim Presentation Defendants argue that the Fifth Cause of Action is barred because Plaintiff presented his Labor Code section 1102.5 claim more than six months after it accrued. (Dem., at p. 15:13-15.) Defendants date accrual to March 2024, when Amador imposed the unpaid suspension, and at the latest to November 18, 2024, when the District's 120-school-day investigation deadline passed. (Dem., at pp. 14:24 - 15:4.)

No suit for money or damages may be brought against a public entity until a written claim has been presented to the entity and acted upon or deemed rejected. (Gov. Code, Sec. 945.4.) A claim relating to a cause of action for injury to a person must be presented no later than six months after the cause of action accrues. (Gov. Code, Sec. 911.2, subd. (a).) A claim under Labor Code section 1102.5 against a public entity is subject to the claim presentation requirement. (Le Mere v. Los Angeles Unified School Dist. (2019) 35 Cal.App.5th 237, 245-246.)

Here, the FAC alleges that Plaintiff was terminated effective February 24, 2025, and that he presented his claim to the District on August 22, 2025. (FAC, P.P. 11, 19.) Six months after February 24, 2025 was August 24, 2025, so the claim came two days before the period closed. The District "does not dispute that the termination claim under Labor Code section 1102.5 is timely." (Dem. Reply, at p. 7:26-27.) That concession abandons the single-accrual theory the Demurrer advanced. The termination is pleaded as an adverse employment action within the Fifth Cause of Action, and the claim relating to it was presented in time. (FAC, P.P. 11, 19, 48.)

A demurrer does not lie to a portion of a cause of action. (PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1682.) Plaintiff argues in addition that each discrete adverse action carries its own presentation period. (Opp. to Dem., at p. 10:11-25.) The concession disposes of the ground without that rule, and the Court does not adopt it. PH II directs a partial defect of that kind, "such as a violation of the applicable statute of limitations," to a motion to strike. (Id. at pp. 1682-1683.)

Defendants' Motion to Strike does not address the paragraphs alleging the suspensions, and nothing here decides whether damages for those acts are recoverable. For the same reason, Plaintiff has no need of the continuing violation doctrine, and the Court makes no ruling on it. Willis v. City of Carlsbad (2020) 48 Cal.App.5th 1104, 1125, on which Defendants rely, resolved the continuing violation question on the permanence element alone and declined to decide the first two. The claim presentation requirement therefore does not bar the Fifth Cause of Action.

IV. Retaliation Defendants argue that the Third and Fifth Causes of Action fail because the FAC pleads no protected activity. (Dem., at p. 16:10-11.) They further argue that the FAC pleads no causal connection between any protected activity and the suspensions or the termination. (Dem., at p. 18:5-8.)

"[I]n 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." (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.) An employee need not file a formal charge to engage in protected opposition, but the activity "must oppose activity the employee reasonably believes constitutes unlawful discrimination, and complaints about personal grievances or vague or conclusory remarks that fail to put an employer on notice as to what conduct it should investigate will not suffice to establish protected conduct." (Yanowitz, supra, 36 Cal.4th at p. 1047.)

An employee's unarticulated belief that the employer is discriminating will not suffice standing alone, where nothing shows the employer knew the opposition rested on a reasonable belief in discrimination. (Id. at p. 1046.)

Here, much of what the FAC describes is unarticulated belief. The FAC alleges that Plaintiff "reflected and could not help but feel like he was being treated differently as a young male," that he "felt that he was once again being attacked and targeted as a male," and that he "could not help but feel that he was being subjected to a targeted campaign of retaliation." (FAC, P.P. 14d, 14e, 14v.) The FAC's allegation that "Marroquin made complaints and/or opposed conduct in violation of the FEHA, during his employment" is a conclusion the demurrer does not admit, and its allegation of what Plaintiff understood Amador's changed attitude to mean is again about his state of mind. (FAC, P.P. 13b, 14i; Dem., at p. 16:17-18.)

The FAC alleges that Plaintiff "agreed to sign the document, but told Amador that he disputed the characterization and reiterated again he was completely unaware of the recording and had proactively reported the incident, and felt like, he the male in the situation involving a female, was being punished for conduct for which he was the actual victim of." (FAC, P. 14g.) Both causes of action turn on that allegation. On the face of the sentence, the closing clause may state a fourth thing Plaintiff told Amador or may describe what he thought without saying it.

The allegations must be liberally construed with a view to substantial justice between the parties, and the Court gives the pleading a reasonable interpretation. (Code Civ. Proc., Sec. 452; Blank, supra, 39 Cal.3d at p. 318.) Read that way, the closing clause continues the series governed by "told Amador," and the paragraph alleges that Plaintiff told his supervisor he believed he was being punished because he is male. A complaint in those terms puts an employer on notice of the conduct it should investigate, and it is opposition to a practice the Act forbids. (Gov.

Code, Sec. 12940, subds. (a), (h).)

The same allegation states a disclosure under Labor Code section 1102.5, though the two statutes ask different questions. Subdivision (b) asks whether the employee disclosed information he had reasonable cause to believe discloses a violation of a state or federal statute, to a person with authority over him or to another employee with authority to investigate, discover, or correct the violation. (Lab. Code, Sec. 1102.5, subd. (b).) Sex discrimination in employment violates Government Code section 12940, subdivision (a).

The FAC alleges that Amador was Plaintiff's supervisor and the official who imposed the discipline Plaintiff was disputing. (FAC, P.P. 14c, 14g.) A report that the employer is imposing discipline on the basis of sex is a report of a statutory violation. It is not one of the "disagreements over discretionary decisions, policy choices, interpersonal dynamics, or other nonactionable issues" that the reasonable-cause clause excludes. (People ex rel. Garcia-Brower v. Kolla's, Inc. (2023) 14 Cal.5th 719, 734.)

Defendants rely on Patten v. Grant Joint Union High School Dist. (2005) 134 Cal.App.4th 1378, 1385, disapproved on another ground in Lawson v. PPG Architectural Finishes, Inc. (2022) 12 Cal.5th 703, 718, footnote 2, for the proposition that the routine workings and communications of the job site are unprotected. (Dem., at p. 17:20-22.) The disclosures Patten held unprotected concerned other employees. Each was "made solely in the context of an internal personnel matter based on a student complaint, rather than in the context of a legal violation." (Patten, supra, 134 Cal.App.4th at p. 1385.)

The allegation here is a report that the employer was itself violating a statute, the context Patten distinguished. Defendants add that the allegation is too vague to qualify, naming no who, what, or when. (Dem. Reply, at p. 6:1-3.) The pleaded complaint names the speaker, the listener, the occasion, and the substance. That also satisfies the particularity the Government Claims Act requires of this cause of action.

The complaint Defendants identify was made in March 2022, roughly two years before the March 2024 suspension and three years before the termination. (Dem., at pp. 18:12-22.) A gap of that length will not by itself support an inference of causation. (Le Mere, supra, 35 Cal.App.5th at p. 244.) The FAC alleges more than an interval. It alleges that Amador's conduct toward Plaintiff changed soon after he returned to work in 2022 and that Amador thereafter ignored his emails. (FAC, P. 14i.) It alleges that when Amador imposed the second unpaid suspension in March 2024, he told Plaintiff the matter had to be investigated because Plaintiff had a "previous issue," meaning the 2022 episode. (FAC, P. 14k.)

That suspension kept Plaintiff off the payroll for nearly a year. (FAC, P. 14q.) It further alleges that Amador issued the Notice of Separation that ended Plaintiff's employment. (FAC, P. 15a.) Those allegations, taken as true, permit the inference of a causal link.

Defendants add that Plaintiff identifies no decisionmaker shown to hold a retaliatory motive or authority over the investigation. (Dem. Reply, at p. 6:22-25.) The FAC identifies Amador in each of those roles. (FAC, P.P. 14c, 14g, 14k, 15a.) Defendants also point to the FAC's allegation that Plaintiff worked from March 2022 through early 2024 without incident or discipline. (FAC, P. 14j; Dem., at p. 18:23-26.) That allegation is in tension with the inference of causation, but does not foreclose it, because the same paragraph opens "Despite Amador's icy behavior toward him," which places the alleged animus inside the intervening period. Accordingly, the Demurrer to the Third Cause of Action and to the Fifth Cause of Action is overruled.

V. Failure to Prevent Defendants argue that the Fourth Cause of Action is derivative and fails because the underlying discrimination, harassment, and retaliation claims fail. (Dem., at p. 20:7-9.) A claim under Government Code section 12940, subdivision (k), is derivative. "There is no stand-alone, private cause of action under Government Code section 12940(k). In order for a private claimant to establish an actionable claim under Government Code section 12940(k), the private claimant must also plead and prevail on the underlying claim of discrimination, harassment, or retaliation." (Cal. Code Regs., tit. 2, Sec. 11023, subd. (a)(2).) Here, the First, Third, and Fifth Causes of Action are adequately pleaded, and they supply the predicate the Fourth Cause of Action requires. Accordingly, the Demurrer to the Fourth Cause of Action is overruled.

MOTION TO STRIKE I. Retaliation Allegations Defendants ask the Court to strike the references to retaliation in the Fourth Cause of Action, in its caption and in paragraphs 41 and 42, on the ground that Government Code section 12940, subdivision (k), extends only to discrimination and harassment. (Mot. to Strike, at p. 2:8-9 [notice]; p. 6:4-5.) Subdivision (k) makes it an unlawful employment practice for an employer "to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring." (Gov. Code, Sec. 12940, subd. (k).) The word retaliation does not appear, and subdivision (h) addresses retaliation separately.

The Court of Appeal has held that "retaliation is a form of discrimination actionable under section 12940, subdivision (k)." (Taylor v. City of Los Angeles Dept. of Water & Power (2006) 144 Cal.App.4th 1216, 1240, disapproved on other grounds in Jones v. The Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158, 1173.) Here, the District is an employer, and the Fourth Cause of Action is pleaded against the District. Taylor permits Plaintiff to proceed on a failure to prevent retaliation theory, so the allegations Defendants would excise are not irrelevant, false, or improper matter. (Code Civ. Proc., Sec. 436.) The Motion to Strike is therefore denied as to the Fourth Cause of Action.

II. Exemplary Damages Defendants ask the Court to strike paragraph 2 of the prayer, which they read as requesting exemplary damages against defendants collectively, on the ground that a public entity is not liable for punitive damages. (Mot. to Strike, at p. 2:10-11; p. 6:25-27.) A public entity "is not liable for damages awarded under Section 3294 of the Civil Code or other damages imposed primarily for the sake of example and by way of punishing the defendant." (Gov. Code, Sec. 818.) A school district is a public entity. (Gov. Code, Sec. 811.2.)

Plaintiff does not dispute that punitive damages are unavailable against the District, and states that he does not seek them against it. (Opp. to Mot. to Strike, at p. 1:14-15, p. 3:17-18.) His position is that the Motion asks for more than section 818 gives, because the section does not immunize the individual defendants. (Opp. to Mot. to Strike, at p. 1:15-23.) "A proper interpretation of section 818 is that it prohibits a claim of punitive damages against a public entity, but not against individual public employees." (Runyon v. Superior Court (1986) 187 Cal.App.3d 878, 880-881.)

The Demurrer to the Second Cause of Action is sustained, and no other cause of action is pleaded against Amador, Alvarez, or Castelo. (FAC, at pp. 14-18.) The FAC alleges nothing about any Doe defendant beyond the fictitious-name allegations, and its allegations of malice, oppression, and fraud are directed to the "Individual Defendants." (FAC, P.P. 3, 17a-c.) As the pleading now stands, no cause of action supports an award of exemplary damages against any defendant. Accordingly, the Motion to Strike paragraph 2 of the prayer is granted with leave to amend.

CONCLUSION The Demurrer is sustained as to the Second Cause of Action and is otherwise overruled. The Motion to Strike is granted as to paragraph 2 of the prayer and is otherwise denied. Plaintiff has 20 days leave to amend. | Home