Hyelim Cho vs County of Ventura et al

Case Number

23CV01752

Case Type

Hearing Date / Time

Mon, 02/26/2024 - 10:00

Nature of Proceedings

Demurrer to Second Amended Complaint

Tentative Ruling

Hyelim Cho v. County of Ventura, et al.                       

Case No. 23CV01752       

Hearing Date: February 26, 2024                                          

HEARING:              Demurrer of Defendants to Second Amended Complaint

ATTORNEYS:        For Plaintiff Hyelim Cho: Gregory W. Smith, Diana Wang Wells, Law Offices of Gregory W. Smith, LLP; Boris Koron, Daniel J. Podolsky, Koron & Podolsky, LLP

                                    For Defendants County of Ventura, Blake D. Heller, Miles Weiss, Lisa O. Lyytikainen, Andrew Sullivant, and Rachelle H. Dean: Elizabeth T. Arce, Dana L. Segal, Liebert Cassidy Whitmore                   

TENTATIVE RULING:

The demurrer of defendants County of Ventura, Blake D. Heller, Miles Weiss, Lisa O. Lyytikainen, Andrew Sullivant, and Rachelle H. Dean to the third cause of action (harassment) of plaintiff Hyelim Cho’s second amended complaint is sustained in part and denied in part as follows:

1. The demurrer to the third cause of action (harassment) in plaintiff’s second amended complaint is sustained with leave to amend as to defendants Andrew Sullivant and Rachelle H. Dean.
2. The demurrer to the third cause of action (harassment) in plaintiff’s second amended complaint is overruled as to defendants County of Ventura, Blake D. Heller, Miles Weiss, and Lisa O. Lyytikainen.
3. Plaintiff shall file and serve her third amended complaint on or before March 18, 2024.

Background:

On April 20, 2023, plaintiff Hyelim Cho filed her original complaint in this action. On June 13, 2023, without any response having been filed, Cho filed her first amended complaint (FAC) against defendants County of Ventura (County), Blake D. Heller, Miles Weiss, Lisa O. Lyytikainen, Andrew Sullivant, and Rachell H. Dean.

The FAC asserted six causes of action: (1) pregnancy discrimination; (2) disability discrimination; (3) harassment based upon pregnancy disability; (4) retaliation; (5) failure to take reasonable steps to prevent harassment, discrimination, or retaliation; and (6) retaliation in violation of Labor Code section 1102.5. The first five causes of action were all asserted as violations of the California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.).

On September 7, 2023, defendants filed their demurrer to the third cause of action (harassment) of the FAC. On October 23, 2023, the demurrer was sustained with leave to amend on grounds including: (1) No severe or pervasive workplace conduct was alleged so as to show the existence of an abusive working environment; and (2) There were no allegations of conduct, or participation in any conduct, by any individual defendant. The court noted: “While the court generally agrees that Cho is not required to plead the complaint with evidentiary detail, in order to meet the pleading requirements for a claim of harassment, there must be sufficient, specific facts alleged which demonstrate the hostile working environment caused by the improper conduct of specific persons, and otherwise provide sufficient facts to demonstrate the liability for that conduct by each defendant against whom liability is asserted.” (Minute Order dated October 23, 2023.)

On November 14, 2023, Cho filed her second amended complaint (SAC) asserting the same six causes of action but including additional allegations.

As alleged in Cho’s SAC:

On September 7, 2021, plaintiff Cho was hired by defendant County of Ventura (County) as a Deputy District Attorney III. (SAC, ¶ 14.) On March 2022, Cho received a merit raise. (Ibid.)

On July 6, 2022, Cho informed County’s management that she had a high-risk pregnancy and requested workplace accommodations. (SAC, ¶ 15.)

On July 8, 2022, Cho had a meeting with Terri Anderson from Human Resources and Weiss relating to plaintiff’s work restrictions and need for accommodation. (SAC, ¶ 16.) During the meeting, Weiss continuously insinuated that plaintiff’s work restrictions would not be accommodated. (Ibid.)

On July 11, 2022, Heller “suddenly and abruptly” issued Cho an untimely and punitive performance evaluation. (SAC, ¶ 17.) Cho was the only member in her unit to receive a performance evaluation at that time. (Ibid.) Heller pressured Cho into signing the evaluation without giving her ample time to review and discuss it. (Ibid.)

On July 12, 2022, Cho requested another meeting with Anderson and Weiss to discuss Cho’s pregnancy related work restrictions. (SAC, ¶ 18.) During the meeting, Weiss made “rude, snarky, and unprofessional comments” towards Cho’s pregnancy restrictions and an inability to accommodate such restrictions. (Ibid.)

On July 13, 2022, defendants issued Cho a negative performance evaluation containing numerous “Needs Improvement” ratings, as a result of which Cho’s probationary period was extended by the maximum number of hours it could have been extended for approximately six months. (SAC, ¶ 19.) Cho immediately protested this evaluation. (Ibid.) Within 30 minutes after issuing Cho the negative performance evaluation on July 13, 2022, defendants placed Cho on unpaid leave claiming her work restrictions could not be accommodated. (SAC, ¶ 20.) (Note: In the SAC, “defendants” are defined as defendant Heller, defendant Weiss, defendant Lyytikainen, defendant Sullivant, and defendant Dean collectively. (SAC, ¶ 8.) Unless otherwise indicated, the use of “defendants” here follows that same usage, and thus without reference to any particular defendant.)

On July 28, 2022, Heller held a unit meeting to discuss Cho’s work restrictions and accommodations. (SAC, ¶ 21.) Cho’s private heath information was discussed among the unit members during the meeting, which was embarrassing and humiliating to Cho. (Ibid.)

On August 1, 2022, Cho was permitted to return to work with workplace accommodations. (SAC, ¶ 22.)

On October 31, 2022, Cho received an amended performance evaluation including new and different reasons for her “Needs Improvement” ratings. (SAC, ¶ 23.) All the reasons provided by defendants to substantiate the “Needs Improvement” ratings were pretext to its discriminatory or retaliatory motive. (Ibid.) Defendants’ handling of Cho’s performance evaluations and probation extension was against policy and the applicable Memorandum of Understanding (MOU). (Ibid.) Almost immediately after receiving the amended negative performance evaluation, Cho complained that defendants’ conduct towards her was in violation of the law. (SAC, ¶ 24.)

Heller would get upset and talk down to Cho for asking for assistance when she felt ill. (SAC, ¶ 25.) Heller also prevented unit members from helping Cho, while requiring Cho to help others under similar circumstances. (Ibid.) Heller also intentionally made false representations to Cho relating to her  flex benefits, telling her that due to her work restrictions she was no longer entitled to them. (Ibid.)

Heller “constantly” gave Cho a “hard time” related to Cho’s doctor appointments, including creating guidelines that only applied to Cho. (SAC, ¶ 26.) Heller would abruptly change the guidelines making it even more difficult for Cho to ask for accommodations relating to her doctor appointments. (SAC, ¶ 26.)

Defendants would exclude Cho from unit meetings and unit members would ask Cho why she was not at meetings. (SAC, ¶ 27.) Lyytikainen and Heller attempted to persuade Cho’s unit members to make disparaging allegations against Cho that they could use as a pretext to terminate Cho. (SAC, ¶ 28.)

On December 20, 2022, defendants terminated Cho’s employment because of her pregnancy, pregnancy related disability, request for workplace accommodations, and complaining about unlawful employment practices, including pregnancy discrimination. (SAC, ¶ 29.)

Defendants left Cho unemployed and without income when Cho was eight months pregnant. (SAC, ¶ 30.)

Defendants now demur to the Third Cause of Action of the SAC, for harassment in violation of FEHA, on the grounds that Cho fails to state facts sufficient to constitute a cause of action against all defendants.

The demurrer is opposed by Cho.

Analysis:

“When any ground for objection to a complaint, cross-complaint, or answer appears on the face thereof, or from any matter of which the court is required to or may take judicial notice, the objection on that ground may be taken by a demurrer to the pleading.” (Code Civ. Proc., § 430.30, subd. (a).

“[A] court must treat a demurrer as admitting all material facts properly pleaded, it does not, however, assume the truth of contentions, deductions or conclusions of law.” (Travelers Indem. Co. of Connecticut v. Navigators Specialty Ins. Co. (2021) 70 Cal.App.5th 341, 358, citing Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967.)

“To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged.” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.)

“If the complaint states a cause of action under any theory, regardless of the title under which the factual basis for relief is stated, that aspect of the complaint is good against a demurrer. “ ‘[W]e are not limited to plaintiffs’ theory of recovery in testing the sufficiency of their complaint against a demurrer, but instead must determine if the factual allegations of the complaint are adequate to state a cause of action under any legal theory. The courts of this state have . . . long since departed from holding a plaintiff strictly to the ‘form of action’ he has pleaded and instead have adopted the more flexible approach of examining the facts alleged to determine if a demurrer should be sustained.’ ” [Citations.]” (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38-39.)

Cho’s third cause of action is for harassment in violation of FEHA.

Government Code section 12923 went into effect on January 1, 2019. It clarified existing law relating to harassment in California.

“The Legislature hereby declares its intent with regard to application of the laws about harassment contained in this part.

“(a) The purpose of these laws is to provide all Californians with an equal opportunity to succeed in the workplace and should be applied accordingly by the courts. The Legislature hereby declares that harassment creates a hostile, offensive, oppressive, or intimidating work environment and deprives victims of their statutory right to work in a place free of discrimination when the harassing conduct sufficiently offends, humiliates, distresses, or intrudes upon its victim, so as to disrupt the victim’s emotional tranquility in the workplace, affect the victim’s ability to perform the job as usual, or otherwise interfere with and undermine the victim’s personal sense of well-being. In this regard, the Legislature affirms its approval of the standard set forth by Justice Ruth Bader Ginsburg in her concurrence in Harris v. Forklift Systems (1993) 510 U.S. 17 that in a workplace harassment suit “ ‘the plaintiff need not prove that his or her tangible productivity has declined as a result of the harassment. It suffices to prove that a reasonable person subjected to the discriminatory conduct would find, as the plaintiff did, that the harassment so altered working conditions as to make it more difficult to do the job.’ ” (Id. at 26).

“(b) A single incident of harassing conduct is sufficient to create a triable issue regarding the existence of a hostile work environment if the harassing conduct has unreasonably interfered with the plaintiff’s work performance or created an intimidating, hostile, or offensive working environment. In that regard, the Legislature hereby declares its rejection of the United States Court of Appeals for the 9th Circuit’s opinion in Brooks v. City of San Mateo (2000) 229 F.3d 917 and states that the opinion shall not be used in determining what kind of conduct is sufficiently severe or pervasive to constitute a violation of the California Fair Employment and Housing Act.

“(c) The existence of a hostile work environment depends upon the totality of the circumstances and a discriminatory remark, even if not made directly in the context of an employment decision or uttered by a nondecisionmaker, may be relevant, circumstantial evidence of discrimination. In that regard, the Legislature affirms the decision in Reid v. Google, Inc. (2010) 50 Cal.4th 512 in its rejection of the “ ‘stray remarks doctrine.’ ”

“(d) The legal standard for sexual harassment should not vary by type of workplace. It is irrelevant that a particular occupation may have been characterized by a greater frequency of sexually related commentary or conduct in the past. In determining whether or not a hostile environment existed, courts should only consider the nature of the workplace when engaging in or witnessing prurient conduct and commentary is integral to the performance of the job duties. The Legislature hereby declares its disapproval of any language, reasoning, or holding to the contrary in the decision Kelley v. Conco Companies (2011) 196 Cal.App.4th 191.

“(e) Harassment cases are rarely appropriate for disposition on summary judgment. In that regard, the Legislature affirms the decision in Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243 and its observation that hostile working environment cases involve issues “ ‘not determinable on paper.’ ” ” (Gov. Code, § 12923.)

Cho brings her harassment cause of action pursuant to Government Code section 12940, subdivision (j). That section provides, among other things, that it is an unlawful employment practice: “For an employer, labor organization, employment agency, apprenticeship training program or any training program leading to employment, or any other person, because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, reproductive health decisionmaking, or veteran or military status, to harass an employee, an applicant, an unpaid intern or volunteer, or a person providing services pursuant to a contract. Harassment of an employee, an applicant, an unpaid intern or volunteer, or a person providing services pursuant to a contract by an employee, other than an agent or supervisor, shall be unlawful if the entity, or its agents or supervisors, knows or should have known of this conduct and fails to take immediate and appropriate corrective action. An employer may also be responsible for the acts of nonemployees, with respect to harassment of employees, applicants, unpaid interns or volunteers, or persons providing services pursuant to a contract in the workplace, if the employer, or its agents or supervisors, knows or should have known of the conduct and fails to take immediate and appropriate corrective action. In reviewing cases involving the acts of nonemployees, the extent of the employer's control and any other legal responsibility that the employer may have with respect to the conduct of those nonemployees shall be considered. An entity shall take all reasonable steps to prevent harassment from occurring. Loss of tangible job benefits shall not be necessary in order to establish harassment.”

“To establish a prima facie case of unlawful harassment under FEHA, a plaintiff must show “ ‘(1) he was a member of a protected class; (2) he was subjected to unwelcome . . . harassment; (3) the harassment was based on [the plaintiff’s membership in an enumerated class]; (4) the harassment unreasonably interfered with his work performance by creating an intimidating, hostile, or offensive work environment; and (5) [defendant] is liable for the harassment.’ ” [Citation.]” (Martin v. Board of Trustees of California State University (2023) 97 Cal.App.5th 149, 137.)

“A showing that harassment created a hostile work environment requires a showing “ ‘ “that the defendant’s conduct would have interfered with a reasonable employee’s work performance and would have seriously affected the psychological well-being of a reasonable employee.” ’ ” [Citations.] “ ‘The law prohibiting harassment is violated ‘ “[w]hen the workplace is permeated with discriminatory intimation, ridicule and insult that is “ ‘ “sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” ’ ” ’ ” [Citation.]” (Ibid.)

Defendants argue, among other things, that Cho fails to plead any specific facts in support of a harassment claim against Sullivant and Dean and that Cho fails to allege sufficient facts against Lyytikainen, Weiss, and Heller to support a claim for harassment.

Despite Cho’s argument to the contrary, at page 10 of her opposition, Cho does not make any specific allegations against Sullivant or Dean. The portions of the SAC that Cho cites, refer generically only to actions of “defendants.” As explained in the ruling on demurrer to the FAC: “In order to assert liability against an individual defendant, Cho must allege sufficient facts connecting that individual defendant to the conduct causing the harm. Generic allegations of conduct by ‘defendants’ are insufficient.” The demurrer to the third cause of action will be sustained, with leave to amend, as to Sullivant and Dean.

Although Cho misrepresents the allegations of the SAC at pages 7 through 10 of her opposition, Cho has pled additional facts against Lyytikainen (at paragraph 28), Weiss (at paragraphs 16 and 18), and Heller (at paragraphs 17, 21, 25, 26, and 28) to state a cause of action for harassment, sufficient to overcome demurrer. As stated above:  “A single incident of harassing conduct is sufficient to create a triable issue regarding the existence of a hostile work environment if the harassing conduct has unreasonably interfered with the plaintiff’s work performance or created an intimidating, hostile, or offensive working environment.” (Gov. Code, § 12923, subd. (b).) A reasonable trier of fact could conclude that Lyytikainen, Weiss, and Heller’s conduct and comments could amount to harassment. County may be held liable pursuant to Government Code section 12940, subdivision (j)(1), which is quoted above, for harassment “if the entity, or its agents or supervisors,” knew of the conduct and failed to take immediate and appropriate action. The demurrer to the third cause of action will be overruled as to Lyytikainen, Weiss, Heller, and County.