Demurrer to First Amended Complaint (Judge Robert D. Foiles)


HEARING ON DEMURRER TO FIRST AMENDED COMPLAINT BY DEFENDANT CITY OF SAN MATEO

TENTATIVE RULING:

Defendant’s Demurrer to Plaintiff’s First Amended Complaint is SUSTAINED in part pursuant to Cal. Code of Civ. Proc. § 430.10(e), with leave to amend, and OVERULED in part, as follows:

The Garcia Decl. ISO Demurrer indicates that counsel were unable to meet and confer in person or by telephone due to delays caused by injuries to Plaintiff’s counsel. The Court, in its discretion, has opted to reach the merits of the Demurrer.

Basis for Defense on Face of Pleading

Defendant argues that Plaintiff’s statements in Plaintiff’s March 2, 2021 letter, attached as Exh. B to the First Amended Complaint, that his Senior Inspector position was temporary, create a bar to recovery because they contradict the allegations that Plaintiff was demoted from that position. However, the allegations in the FAC are not logically inconsistent with the statements in Plaintiff’s March 2, 2021 letter, which states that Plaintiff was told he would be “acting” Senior Inspector because HR was tied up, but that the position was soon to be permanent. Similarly, the specific allegations at FAC ¶¶ 17, 18 and 31 that Plaintiff’s position was “acting,” “interim,” and “a one-year limited appointment” do not logically contradict the general allegation of an unlawful demotion for the same reason. The Demurrer is therefore OVERRULED on this basis with respect to the first four causes of action in the FAC.

Retaliation Claim

Defendant argues that Plaintiff’s Labor Code Section 1102.5 claim for retaliation against an employee who complains of a workplace violation of state or federal statutes fails because he does not allege acts following his March 2, 2021 email complaint. However, the FAC alleges that earlier complaints gave rise to retaliation, stating “These wrongful actions began when Plaintiff made complaints in

September of 2018 against Defendant Titsworth’s use of vulgar language and political hate speech. Although this incident occurred almost four years ago, it set the stage and the tone for the ongoing pattern of harassment, retaliation, and discrimination against Plaintiff.” FAC,

¶15. These allegations are incorporated by reference into Plaintiff’s Fifth Cause of Action at paragraph 50, and, reading the pleading liberally, and taking the allegations as true for purposes of demurrer, support a claim for retaliation under Labor Code Section 1102.5.

Additionally, the FAC alleges at ¶54 that Defendant Nguyen harassed Plaintiff in retaliation for his complaints by giving Plaintiff excessive workloads, and this allegation follows the allegation of Plaintiff’s March 2, 2021 email complaint.

The Demurrer is therefore OVERRULED on this basis with respect to the fifth cause of action in the FAC.

Political Party Association

Defendant argues that ‘Political association’ is not a protected class under Government Code, section 12940, and so Plaintiff’s FAC is subject to demurrer. MP&A ISO Demurrer, 8:19-27. Plaintiff concedes this point, and offers to amend his pleading to delete references to political viewpoint as an underlying cause of his disparate treatment. Opp. 6:18-21. The Demurrer is therefore SUSTAINED on this basis with leave to amend.

Plaintiff may file an amended pleading within ten days of notice of entry of this order.

If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, counsel for Defendant shall prepare a written order consistent with the Court’s ruling for the Court’s signature, pursuant to California Rules of Court, Rule 3.1312, and provide written notice of the ruling to all parties who have appeared in the action, as required by law and the California Rules of Court.