Preview
1 XAVIER BECERRA E-FILED
Attorney General of California 1/19/2021 1:21 PM
2 ANDREA R. AUSTIN Superior Court of California
Supervising Deputy Attorney General County of Fresno
3 JINNIFER D. PITCHER By: A. Ramos, Deputy
Deputy Attorney General
4 State Bar No. 252880
1300 I Street, Suite 125
5 P.O. Box 944255
Sacramento, CA 94244-2550
6 Telephone: (916) 210-6462
Fax: (916) 324-5567
7 E-mail: Jinnifer.Pitcher@doj.ca.gov
Attorneys for Defendant California Department of Exempt from Filing Fees
8 State Hospitals Pursuant to Gov. Code§ 6103
9 SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 COUNTY OF FRESNO
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13 MINH-DUC D. PHAM, Case No. 20CECG03078
14 Plaintiff, MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF
15 v. DEFENDANT CALIFORNIA
DEPARTMENT OF STATE
16 HOSPITALS' DEMURRER TO
STATE OF CALIFORNIA DEPARTMENT PLAINTIFF'S COMPLAINT
17 OF STATE HOSPITALS; VICTOR
KHALIL, an individual; and DOES 1 Date: June 15, 2021
18 through 50, inclusive, Time: 3 :30 p.m.
Dept.: 501 ·
19 Defendants. Judge: The Honorable D. Tyler Tharpe
20 _______________ _.
Trial Date:
Action Filed:
None Set
October 19, 2020
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Memorandum of Points and Authorities in Support of Defendant DSH's Demurrer to Plaintiffs
Complaint (20CECG03078)
1 INTRODUCTION
2 Defendant California Department of State Hospitals (DSH) hereby demurrers to Plaintiffs
3 Complaint and all four causes of action under the California Fair Employment and Housing Act
4 (FEHA). Although Plaintiff alleges that he is Asian (Vietnamese) and 50 years old, his
5 Complaint is devoid of any factual allegations that link any supposed conduct to Plaintiffs race,
6 national origin, or age. His harassment claim also fails as he only alleges personnel-related
7 conduct, which cannot constitute actionable harassment under FEHA. Therefore, his First,
8 Second and Third Causes of Action fail to state a claim. Additionally, Plaintiffs Fourth Cause of
9 Action fails as he has not adequately pled a causal link between any protected activity and
10 adverse employment action. Furthermore, Plaintiff was not subject to an adverse action as the
11 alleged reduction in salary never occurred-as demonstrated by Plaintiffs State Personnel Board
12 settlement agreement, which is subject to judicial notice. His Fourth Cause of Action also fails as
13 it relies inappropriately on confidential settlement discussions between DSH and his attorney.
14 Finally, Plaintiff has not met his burden to demonstrate he exhausted his administrative remedies
15 with the California Department of Fair Employment and Housing (DFEH) for any of his causes of
16 action as he failed to attach his DFEH Complaint and Right to Sue letter with his civil complaint,
17 and declined to provide a copy of the DFEH Complaint during the meet and confer process. The
18 Court should sustain DSH' s demurrer to Plaintiffs Complaint and all causes of action therein.
19 STATEMENT OF ALLEGED FACTS
20 Plaintiff Minh-Duc Pham is a dentist at DSH's facility in Coalinga, California. [Compl.
21 ~~ 5, 13.] Plaintiff alleges that his supervisor, individual Defendant Victor Khalil, filed
22 numerous, frivolous claims and complaints against him. [Compl. ~ 17.] Plaintiff contends that
23 Khalil's claims are unsubstantiated but that DSH reassigned him to other departments and
24 continues to investigate the complaints, disrupt Plaintiffs work, and cause him to be perceived in
25 a negative light by his colleagues and coworkers. [Compl. ~~ 18-19.J Plaintiff is Asian
26 (Vietnamese) and 50 years old, and asserts that Khalil's actions were motivated by Plaintiffs
27 race, ethnicity and national origin. [Compl. ~~ 1, 13, 20, 23, 30.] Plaintiff also asserts Khalil's
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Memorandum of Points and Authorities in Support of Defendant DSH's Demurrer to Plaintiff's
Complaint (20CECG03078)
1 complaints and reassignments were harassing, severe, and pervasive and impacted Plaintiffs
2 work environment. [Compl. 121.] Plaintiff maintains that DSH has facilitated and failed to
3 prevent Khalil's discriminatory and harassing conduct. [Compl. 1121-22.] Plaintiff further
4 contends that in May 2019, DSH demanded that Plaintiff waive his discrimination and
5 harassment claims in exchange for a reduction in proposed discipline. [Compl. 123.] Plaintiff
6 alleges that because he did not waive his claims against DSH, DSH retaliated against him by
7 imposing a 5% salary reduction. [Compl. 124.]
8 Plaintiff asserts that he filed a complaint with the California Department of Fair
9 Employment and Housing (DFEH) and received a right-to-sue letter on October 22, 2019.
10 [Compl. 112.] Although Plaintiff has provided the right-to-sue letter to DSH's counsel, he has
11 not provided the underlying DFEH complaint nor has he attached the DFEH complaint or the
12 right-to-sue letter to his civil complaint. [See DSH's Declaration of Compliance with Meet and
13 Confer Requirements 13, filed concurrently herewith.]
14 Prior to bringing this demurrer, counsel for Defendant DSH met and conferred with
15 Plaintiffs counsel as required by Code of Civil Procedure§ 430.41. [Id.]
16 LEGAL STANDARD
17 The basic sufficiency of pleading is well-settled and straightforward: "A complaint ... shall
18 contain ... [a] statement of the facts constituting the cause of action .... " [Code Civ. Proc.,
19 § 425.lO(a).] "This requirement obligates the plaintiff to allege ultimate facts that, taken as
20 a whole, apprise the defendant of the factual basis of the claim." [Scholes v. Lambirth Trucking
21 Co. (2017) 10 Cal.App.5th 590, 598, affd (2020) 8 Cal. 5th 1094.] "Doubt in the complaint may
22 be resolved against plaintiff and facts not alleged are presumed not to exist." [Krammer v. Intuit,
23 Inc. (2004) 121 Cal.App.4th 574, 578.]
24 A defendant may object to a civil complaint and file a demurrer if the pleading is uncertain
25 or does not state facts sufficient to constitute a cause of action. [Code Civ. Proc., § 430.1 O(e)-
26 (f).] A court treats "the demurrer as admitting all material facts properly pleaded, but not
27 contentions, deductions, or conclusions of fact or law." [Progressive West Ins. Co. v. Super. Ct.
28 (2006) 135 Cal.App.4th 263, 269.] A court also considers matters which may be judicially
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Memorandum of Points and Authorities in Support of Defendant DSH's Demurrer to Plaintiff's
Complaint (20CECG03078)
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1 noticed. [Code. Civ. Proc., § 430.30(a); Britz, Inc. v. Dow Chemical Co. (1999) 73 Cal.App.4th
2 177, 179-80 (taking judicial notice of settlement agreement and sustaining defendant's demurrer
3 to plaintiff's compliant).]
4 Although the allegations of a complaint are typically accepted as true, allegations are not
5 accepted as true if they contradict or are inconsistent with judicially noticeable facts. [Evans v.
6 City of Berkeley (2006) 38 Cal.4th 1, 20 ("[A] demurrer assumes the truth of the complaint's
7 properly pleaded allegations, but not of mere contentions or assertions contradicted by judicially
8 noticeable facts."); see, e.g., Cansino v. Bank ofAmerica (2014) 224 Cal.App.4th 1462, 1474
9 (sustaining demurrer and rejecting allegation that defendant enticed plaintiffs to purchase a house,
10 when the judicially noticed deeds of trust showed that plaintiffs were refinancing, not
11 purchasing); Kalnoki v. First American Trustee Servicing Solutions, LLC (2017) 8 Cal.App.5th
12 23, 38-39 (court disregarded the plaintiff's allegations that were contrary to judicially noticed
13 deeds of trust and merger documents).
14 Finally, while it is often true that a demurrer should not be sustained without leave to
15 amend, the burden is on the plaintiff to show in what manner they can amend the complaint and
16 how that amendment will cure the deficient pleading. [Zelig v. County of Los Angeles (2002)
17 27 Cal.4th 1112, 1126.]
18 ARGUMENT
19 I. DEFENDANT DSH's DEMURRER SHOULD BE SUSTAINED TO PLAINTIFF'S FIRST
CAUSE OF ACTION FOR RACE AND NATIONAL ORIGIN DISCRIMINATION As
20 PLAINTIFF FAILS TO ST ATE A CLAIM
21 In order to establish a prima facie case of discrimination, a plaintiff is required to plead that
22 (1) he was a member of a protected class; (2) he was subjected to an adverse employment action;
23 (3) he was satisfactorily performing his job when the adverse action was taken against him; and
24 (4) circumstances that suggest that his employer acted with a discriminatory motive. [Guz v.
25 Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 355.]
26 Here, Plaintiff has not alleged any facts that suggest Khalil or DSH acted with
27 a discriminatory motive, the fourth requirement. Plaintiff only states that he is Asian
28 (Vietnamese) [see Compl. ~~ 1, 13, 20, 23] without any supporting allegations that suggest that
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Memorandum of Points and Authorities in Support of Defendant DSH's Demurrer to Plaintiffs
Complaint (20CECG03078)
1 any conduct he alleged took place was because of his race or national origin. The entire
2 complaint is devoid of specific factual allegations linking any conduct to Plaintiff's race or
3 national origin.
4 Although Plaintiff asserts that Khalil's conduct was "motivated" by Plaintiff's race and
5 national origin [see Compl. ~~ 20, 23, 30], these threadbare conclusions are untethered to any
6 facts and insufficient to state a claim for discrimination. [See Gray v. Superior Court (1986)
7 181 Cal.App.3d 813,820 (demurrer was properly sustained to the plaintiff's cause of action for
8 wrongful termination based on gender discrimination where no specific facts alleged)
9 disapproved of on other grounds by Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 350-51;
10 see also Berger v. California Ins. Guarantee Assn. (2005) 128 Cal.App.4th 989, 1006 (allegation
11 that plaintiffs "gave timely and adequate notice of claim" was insufficient on demurer; "This
12 allegation states only a legal conclusion, rnther than pleading facts, and, as such, is inadequate");
13 Zumbrun v. Univ. of Southern California (1972) 25 Cal.App.3d 1, 8 ("General and indefini!e
14 assertions of liability are not sufficient compliance with the rules of pleading . . . . Facts, not
15 conclusions, must be pleaded.").].
16 Thus, the Court should sustain DSH' s demurrer to Plaintiff's First Cause of Action because
17 Plaintiff has failed to allege any/acts that any conduct that he alleges took place was·because of
18 his race or national origin.
19 II. DEFENDANT DSH's DEMURRER SHOULD BE SUSTAINED TO PLAINTIFF'S SECOND
CAUSE OF ACTION FOR RACE, NATIONAL ORIGIN, AND AGE HARASSMENT
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A. Plaintiff Fails to State a Claim for Race, National Origin, and Age
21 Harassment
22 In order to establish a primafacie case of a hostile work environment, a plaintiff is required
23 to plead that: (1) he belongs to a protected group (e.g. race, national origin, age); (2) he was
24 subjected to unwelcome harassment; (3) the harassment was based upon that protected group;
25 (4) the harassment was sufficiently severe or pervasive so as to alter the conditions of
26 employment and create an abusive working environment; and (5) the employer is liable for the
27 harassment. [Thompson v. City of Monrovia (2010) 186 Cal.App.4th 860,876; Fisher v.
28 San Pedro Peninsula Hosp. (1989) 214 Cal.App.3d 590, 608.]
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Memorandum of Points and Authorities in Support of Defendant DSH's Demurrer to Plaintiffs
Complaint (20CECG03078)
1 Again, here, Plaintiff has not alleged any facts that suggest Khalil or DSH acted based upon
2 a protected group, the third requirement. Plaintiff only states that he is Asian (Vietnamese) and
3 50 years old. [See Compl. ~~ 1, 13, 20, 23.] There are no factual allegations suggesting that any
4 supposed conduct was because ofhis race, national origin or age. The entire complaint is devoid
5 of any specific factual allegations linking any conduct to Plaintiffs race, national origin, or age.
6 And although Plaintiff asserts that Khalil's conduct was "motivated" by Plaintiffs race and
7 national origin [see Compl. ~~ 20, 23, 30], such legal conclusions are untethered to any facts and
8 insufficient to state a claim for harassment [See Gray, supra, 181 Cal.App.3d at 820; Berger,
9 supra, 128 Cal.App.4th at 1006; Zumbrun, supra, 25 Cal.App.3d at 8.] Furthermore, there are
10 absolutely no allegations that Khalil's conduct was motivated by age. Thus, Defendant's
11 demurrer to Plaintiffs Second Cause of Action should be sustained because Plaintiff has failed to
12 allege any facts that any harassment was because of his race, national origin, or age.
13 B. Plaintiff's Second Cause of Action for Harassment Fails Because All of the
Conduct Alleged Are Personnel-Related Actions, Which Are Not
14 Actionable
15 Plaintiffs Second Cause of Action for harassment also fails because he has not alleged any
16 actionable harassment under FEHA. The California Supreme Court has held that "harassment"
17 does not include "personnel management actions such as hiring and firing, job or project
18 assignments, office or work station assignments, promotion or demotion, performance
19 evaluations, the provision of support, the assignment or nonassignment of supervisory functions,
20 deciding who will and who will not attend meetings, deciding who will be laid off, and the like."
21 [Reno v.Baird (1998) 18 Cal. 4th 640, 646-47 (citing Janken v. GM Hughes Electronics (1996)
22 46 Cal.App.4th 55, 64-65).] These "personnel decisions [are an] inherent and unavoidable part of
23 the supervisory function" and "[w]ithout making personnel decisions, a supervisory employee
24 simply cannot perform his or her job duties." [Id.] Although such personnel actions may be
25 alleged to be discriminatory, they cannot constitute harassment as a matter oflaw. [Id.
26 ("Harassment, by contrast, consists of actions outside the scope of job duties which are not of
27 a type necessary to business and personnel management. This significant distinction underlies the
28 differential treatment of harassment and discrimination in the FEHA.")]
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Memorandum of Points and Authorities in Support of Defendant DSH's Demurrer to Plaintiff's
Complaint (20CECG03078)
1 Here, Plaintiff alleges that Defendant Khalil was his supervisor [Compl. 1 14] and that
2 Khalil's conduct led to unsubstantiated investigations into Plaintiff, Plaintiffs reassignment and
3 Plaintiffs discipline. [Compl. 11 17-20.] Even if true, these allegations are precisely the type of
4 personnel management actions that cannot constitute actionable harassment under Reno. Thus,
5 Plaintiffs Second Cause of Action for harassment fails.
6 Ill. DEFENDANT DSH's DEMURRER SHOULD BE SUSTAINED TO PLAINTIFF'S THIRD
CAUSE OF ACTION FOR FAILURE TO PREVENT DISCRIMINATION AND HARASSMENT
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8 As Plaintiff has not stated a cause of action as to his First and Second Causes of Action for
9 discrimination and harassment, he cannot state a cause of action for the derivative claim for
10 failure to prevent discrimination and harassment under Gov. Code,§ 12940(k). [Okorie v.
11 Los Angeles Unified Sch. Dist. (2017) 14 Cal.App.5th 574, 597 ("A failure to prevent
12 discrimination claim is a derivative claim-a plaintiff cannot maintain a cause of action for
13 failure to investigate or prevent harassment unless there was actionable harassment.") (citing
14 Trujillo v. N Cty. Transit Dist. (1998) 63 Cal.App.4th 280, 289).] Accordingly, the Court should
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15 sustain DSH' s demurrer to Plaintiffs Third Cause of Action.
16 IV. DEFENDANT DSH's DEMURRER SHOULD BE SUSTAINED TO PLAINTIFF'S FOURTH
CAUSE OF ACTION FOR RETALIATION
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A. Plaintiff Fails to Allege Any Causal Link Between Any Protected Activity
18 and an Adverse Employment Action
19 To establish a prima facie case of retaliation, a plaintiff must allege that (1) he engaged in
20 a protected activity; (2) his employer subjected him to an adverse employment action; and
21 (3) there was a causal link between the protected activity and the employment action. [Flait v.
22 North American Watch Corp. (1992) 3 Cal.App.4th 467, 476.]
23 Here, Plaintiff has not sufficiently pled that there was any causal link between a protected
24 activity and an adverse employment action, the third requirement. Plaintiff fails to allege when
25 any adverse conduct allegedly occurred. Without any time frame or dates, he has not sufficiently
26 alleged that any adverse employment action was subsequent to or caused by any protected
27 activity. [See Loggins v. Kaiser Permanente Internat. (2007) 151 Cal.App.4th 1102, 1110 (causal
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Memorandum of Points and Authorities in Support of Defendant DSH's Demurrer to Plaintiff's
Complaint (20CECG03078)
1 link in retaliation claims shown by temporal proximity).] Thus, Plaintiff's Fourth Cause of
2 Action for Retaliation should be dismissed.
3 B. Judicially Noticeable Documents Show That Plaintiff Has Not Been
Subject to a Reduction in Pay as an Adverse Employment Action
4
5 Additionally, the Court should also sustain Defendant's Demurrer on the same grounds set
6 forth in Defendant DSH's Motion to Strike the Complaint, namely that Plaintiff was never subject
7 to any reduction in pay, and thus that cannot be the basis of any adverse employment action. In
8 his complaint, Plaintiff alleges after he refused to waive his PEHA claims against DSH, DSH
9 reduced his salary by 5%. [Compl., 24.] However, DSH did not ultimately reduce Plaintiff's
10 salary by 5%. The parties settled his discipline, replacing his pay reduction with a Letter of
11 Instruction. [See DSH's Request for Judicial Notice, Ex. A (Stipulation for Settlement, 1. 1]
12 Thus, Plaintiff's pay was never reduced as he received all back pay and benefits. [RJN, Ex. A
13 (Settlement Agreement, 2).] Furthermore, Plaintiff was not required to waive any claims. [RJN,
14 Ex. A (Settlement Agreement, 4 ("Dr. Pham does not waive any rights relating to those claims
15 set forth in DFEH Case Number 2019907-06690801.").J The State Personnel Board approved
16 this settlement agreement, finding it "consistent with the interests protected by the State's merit
17 civil service system .... " [RJN, Ex. A (Decision Approving Stipulation for Settlement).]
18 Accordingly, Plaintiff's allegation that he was subject to a 5% pay reduction should be
19 disregarded as it contradicts judicially noticeable documents, i.e., his State Personnel Board
20 settlement agreement which conclusively states that he is not subject to a 5% pay reduction.
21 [Evans, supra, 38 Cal.4th at 20 (court disregarded plaintiff's allegations that were contrary to
22 judicially noticed documents); Cansino, supra, 224 Cal.App.4th at 1474 (same); Kalnoki, supra,
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DSH requests that the Court take judicial notice of Dr. Pham and DSH's settlement
24 agreement filed with the State Personnel Board (SPB). [See DSH's Request for Judicial Notice
("RJN"), filed concurrently herewith.] The settlement agreement is appropriate for judicial notice
25 under Evid. Code, § 453. [Evid. Code, § 453 (court "shall take judicial notice of any matter
specified in Section 452" if the party provides "sufficient notice of the request" and "[f]urnishes
26 the court with sufficient information"); id. § 452(h) Gudicial notice appropriate where "[f]acts and
propositions [] are not reasonably subject to dispute and are capable of immediate and accurate
27 determination by resort to sources of reasonably indisputable accuracy"); see Manavian v. Dep 't
of Justice (2018) 28 Cal.App.5th 1127, 1135 n.2 (granting judicial notice of SPB documents).]
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Memorandum ofpoints and Authorities in Support of Defendant DSH's Demurrer to Plaintiff's
Complaint (20CECG03078)
1 8 Cal.App.5th at 38-39 (same); see also Meeks v. Autozone, Inc. (2018) 24 Cal.App.5th 855, 879
2 (holding that threatened adverse action does not constitute an adverse employment action). The
3 Court should disregard any allegations that Plaintiff's pay was reduced and sustain Defendant's
4 demurrer to Plaintiff's Fourth Cause of Action as Plaintiff cannot allege the requisite adverse
5 employment action for his retaliation claim.
6 C. Defendant DSH's Motion to Strike Shows that Plaintifrs Retaliation Claim
is Improperly Based on Confidential Settlement Negotiations
7
8 Additionally, as set forth in Defendant DSH's Motion to Strike the Complaint, Plaintiff
9 inappropriately recites and relies on what, if they occurred, would be confidential settlement
10 negotiations to support his retaliation claim in contravention of California Evidence Code section
11 1152 subdivision (a). That section prohibits using any conduct or statements made in negotiation
12 for settlement as admissions in later litigation. [Law Rev. Comm. Cmts. to Evid. Code,§ 1152;
13 Evid. Code, § 1152(a) ("Evidence that a person has, in compromise ... furnished or offered or
14 promised to furnish money or any other thing, act, or service to another who has sustained or will
15 sustain or claims that he or she has sustained or will sustain loss or damage, as well as any
16 conduct or statements made in negotiation thereof, is inadmissible to prove his or her liability for
17 the loss or damage or any part of it."); Mangano v. Verity, Inc. (2009) 179 Cal.App.4th 217,
18 222-23 (trial court properly excluded the employer's proposed separation agreement to plaintiff in
19 later civil litigation under Evid. Code, § 1152).
20 Here, as set forth in DSH's motion to strike, filed concurrently herewith, even if DSH had
21 tried to negotiate a litigation waiver to resolve Plaintiff's State Personnel Board appeal from
22 discipline which resulted from the investigation of one of Dr. Khalil's complaints against
23 Plaintiff-and it's not clear at this stage that this is what occurred-it is entirely inappropriate to
24 refer to these discussions which are barred by Evidence Code section 1152. Thus, because
25 Plaintiff's recital of these alleged discussions are inappropriate and should be stricken from the
26 complaint, no factual allegations remain in support of Plaintiff's retaliation claim. Therefore,
27 DSH's demurrer to Plaintiff's Fourth Cause of Action should be sustained.
28 Ill
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Memorandum of Points and Authorities in Support of Defendant DSH's Demurrer to Plaintiffs
Complaint (20CECG03078)
1 V. DEFENDANT DSH's DEMURRER SHOULD BE SUSTAINED As PLAINTIFF HAS FAILED
TO SHOW THAT HE HAS EXHAUSTED HIS ADMINISTRATIVE REMEDIES
2
3 Prior to bringing a civil action under FEHA, an employee must first file an administrative
4 complaint with the California Department of Fair Employment and Housing (DFEH) (or the
5 Equal Employment Opportunity Commission). [Gov. Code,§§ 12960, 12965(b); Martin v.
6 Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th 1718, 1724.] An administrative complaint
7 must set forth the alleged unlawful acts and "set forth the particulars thereof." [Gov. Code,
8 § 12960(c).] The charge must state enough facts to allow the DFEH to perform its statutory duty
9 to investigate the claims being made and to supply fair notice to the employer. [See Gov. Code,
10 § 12963 (providing that the DFEH will investigate "[a]fter the filing of any complaint alleging
11 facts sufficient to constitute a violation of any of the provisions of this part"); Zumbrun v. Univ. of
12 Southern California (1972) 25 Cal.App.3d 1, 8.).] Plaintiff bears the burden of pleading a timely
13 and sufficient administrative complaint and that a right-to-sue has been obtained, thereby
14 exhausting his administrative remedies. [Jumaane v. City of Los Angeles (2015) 241 Cal.App.4th
15 1390, 1402.]
16 If the plaintiff attempts to bring a civil complaint based on acts not specified in the
17 administrative complaint, or not "like or reasonably related to" those charges put before the
18 DFEH, then a civil suit on those acts is barred. [Martin, supra, 29 Cal.App.4th at 1724 ("To
19 exhaust his or her administrative remedies as to a particular act made unlawful by the Fair
20 Employment and Housing Act, the claimant must specify that act in the administrative complaint,
21 even if the complaint does specify other cognizable wrongful acts."). Courts have frequently
22 dismissed civil claims for failure to exhaust administrative remedies when the plaintiff alleges
23 facts in his civil complaint that were neither like nor reasonably related to those allegations in his
24 DFEH charge. [See, e.g., Wills v. Superior Court (2011) 195 Cal.App.4th 143, 153-54, 157-58
25 (plaintiff did not exhaust administrative remedies for retaliation, harassment, failure to prevent
26 harassment, failure to engage in interactive process, or failure to accommodate claims where
27 DFEH complaint only alleged employer refused to reinstate plaintiff following medical leave);
28 Okoli v. Lockheed Technical Operations Co. (1995) 36 Cal.App.4th 1607, 1612-13, 1617
10 .
Memorandum of Points and Authorities in Support of Defendant DSH's Demurrer to Plaintiffs
Complaint (20CECG03078)
1 (plaintiff did not exhaust administrative remedies for retaliation claim where DFEH complaint
2 only alleged race and national origin discrimination); Yurick v. Superior Court (1989) 209
3 Cal.App.3d 1116, 1121-23 (plaintiff did not exhaust administrative remedies for age harassment
4 claim where DFEH complaint only alleged gender discrimination).] Put another way, the scope
5 of the plaintiffs administrative complaint limits the scope of the subsequent civil action.
6 Here, Plaintiff alleges he filed a DFEH complaint, however, he fails to attach the
7 underlying DFEH complaint or identify its content. [DSH's Meet and Confer Deel.~ 3.]
8 Without the specifics of his administrative complaints, he cannot show that he has exhausted any
9 of his claims in this case. For example, he cannot demonstrate that he specified any ageist
10 harassing acts in his DFEH complaint or that he made any allegations that might be like or
11 reasonably related to age harassment in his DFEH complaint. As Plaintiff has failed to meet his
12 burden to exhaust the requisite administrative remedies to pursue any claims, DSH's demurrer
13 should be sustained as to Plaintiffs First, Second, Third and Fourth Causes of Action.
14 CONCLUSION
15 Defendant DSH requests that the Court sustain its demurrer to Plaintiffs Complaint.
16 Plaintiffs First and Second Causes of Action have no facts to suggest that any alleged conduct
17 was due to his race, national origin, or age, and therefore, the conduct cannot be discriminatory or
18 harassing in violation of FERA. Accordingly, his derivative Third Cause of Action for Failure to
19 Prevent Discrimination and Harassment must also fail. Furthermore, his Fourth Cause of Action
20 for retaliation fails because he has not alleged any causal link between any protected activity and
21 an adverse employment action. Additionally, his supposed pay reduction of 5% contradicts his
22 signed State Personnel Board Settlement Agreement-a judicially noticeable document.
23 Furthermore, his retaliation claim is based on confidential settlement negotiations, which should
24 be stricken. Finally, Plaintiff has not met his burden to demonstrate he has exhausted his
25 administrative remedies as to all claims, but particularly as to his Second Cause of Action to the
26 extent that it alleges age harassment.
27 Ill
28 Ill
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Memorandum of Points and Authorities in Support of Defendant DSH's Demurrer to Plaintiff's
Complaint (20CECG03078)
1 Dated: January 19, 2021 Respectfully Submitted,
2 XAVIER BECERRA
Attorney General of California
3 ANDREA R. AUSTIN
Supervising Deputy Attorney General
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JINNIFER D. PITCHER
7 Deputy Attorney General
Attorneys for Defendant
8 Cal[fornia Department of State Hospitals
9 SA2020304545
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Memorandum of Points and Authorities in Support of Defendant DSH ' s Demurrer to Plaintiffs
Complaint (20CECG03078)
DECLARATION OF SERVICE BY E-MAIL AND U.S. MAIL
Case Name: Minh-Due Pham v. DSH, et al.
Case No.: 20CECG03078
I declare:
I am employed in the Office of the Attorney General, which is the office of a member of the
California State Bar, at which member's direction this service is made. I am 18 years of age or
older and not a paiiy to this matter. I am familiar with the business practice at the Office of the
Attorney General for collection and processing of c01Tespondence for mailing with the United
States Postal Service. In accordance with that practice, correspondence placed in the internal
mail collection system at the Office of the Attorney General is deposited with the United States
Postal Service with postage thereon fully prepaid that same day in the ordinary course of
business.
On January 19, 2021, I served the attached MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF DEFENDANT CALIFORNIA DEPARTMENT OF
STATE HOSPITALS' DEMURRER TO PLAINTIFF'S COMPLAINT by transmitting a
true copy via electronic mail. In addition, I placed a true copy thereof enclosed in a sealed
envelope, in the internal mail system of the Office of the Attorney General, addressed as follows:
Joseph D. Larsen Jeremy J. Schroeder, Esq.
Rutan & Tucker, LLP Flesher Schaff & Schroeder
18575 Jamboree Road, 9th Floor 2202 Plaza Drive
Irvine, CA 92612 Rocklin, CA 95765
E-mail Address: jlarsen@rutan.com E-mail Address: jjs@fsslawfirm.com
Attorneys for Plaintiff Attorneys/or Defendant, Victor Khalil
I declare under penalty of pe1jury under the laws of the State of California and the United States
of America the foregoing is true and correct and that this declaration was executed on
January 19, 2021, at Sacramento, California. \ J~J " . A-· ." ' /1 /J .
Marianne Baschiera vv VL{).IU_(I'-"' r ~ 01llJ ~
Declarant Signature
SA2020304545
34747968.docx
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1 XAVIER BECERRA E-FILED Attorney General of California 1/19/2021 1:21 PM 2 ANDREA R. AUSTIN Superior Court of California Supervising Deputy Attorney General County of Fresno 3 JINNIFER D. PITCHER By: A. Ramos, Deputy Deputy Attorney General 4 State Bar No. 252880 1300 I Street, Suite 125 5 P.O. Box 944255 Sacramento, CA 94244-2550 6 Telephone: (916) 210-6462 Fax: (916) 324-5567 7 E-mail: Jinnifer.Pitcher@doj.ca.gov Attorneys for Defendant California Department of Exempt from Filing Fees 8 State Hospitals Pursuant to Gov. Code§ 6103 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 COUNTY OF FRESNO 11 12 13 MINH-DUC D. PHAM, Case No. 20CECG03078 14 Plaintiff, MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF 15 v. DEFENDANT CALIFORNIA DEPARTMENT OF STATE 16 HOSPITALS' DEMURRER TO STATE OF CALIFORNIA DEPARTMENT PLAINTIFF'S COMPLAINT 17 OF STATE HOSPITALS; VICTOR KHALIL, an individual; and DOES 1 Date: June 15, 2021 18 through 50, inclusive, Time: 3 :30 p.m. Dept.: 501 · 19 Defendants. Judge: The Honorable D. Tyler Tharpe 20 _______________ _. Trial Date: Action Filed: None Set October 19, 2020 21 22 23 24 25 26 27 28 Memorandum of Points and Authorities in Support of Defendant DSH's Demurrer to Plaintiffs Complaint (20CECG03078) 1 INTRODUCTION 2 Defendant California Department of State Hospitals (DSH) hereby demurrers to Plaintiffs 3 Complaint and all four causes of action under the California Fair Employment and Housing Act 4 (FEHA). Although Plaintiff alleges that he is Asian (Vietnamese) and 50 years old, his 5 Complaint is devoid of any factual allegations that link any supposed conduct to Plaintiffs race, 6 national origin, or age. His harassment claim also fails as he only alleges personnel-related 7 conduct, which cannot constitute actionable harassment under FEHA. Therefore, his First, 8 Second and Third Causes of Action fail to state a claim. Additionally, Plaintiffs Fourth Cause of 9 Action fails as he has not adequately pled a causal link between any protected activity and 10 adverse employment action. Furthermore, Plaintiff was not subject to an adverse action as the 11 alleged reduction in salary never occurred-as demonstrated by Plaintiffs State Personnel Board 12 settlement agreement, which is subject to judicial notice. His Fourth Cause of Action also fails as 13 it relies inappropriately on confidential settlement discussions between DSH and his attorney. 14 Finally, Plaintiff has not met his burden to demonstrate he exhausted his administrative remedies 15 with the California Department of Fair Employment and Housing (DFEH) for any of his causes of 16 action as he failed to attach his DFEH Complaint and Right to Sue letter with his civil complaint, 17 and declined to provide a copy of the DFEH Complaint during the meet and confer process. The 18 Court should sustain DSH' s demurrer to Plaintiffs Complaint and all causes of action therein. 19 STATEMENT OF ALLEGED FACTS 20 Plaintiff Minh-Duc Pham is a dentist at DSH's facility in Coalinga, California. [Compl. 21 ~~ 5, 13.] Plaintiff alleges that his supervisor, individual Defendant Victor Khalil, filed 22 numerous, frivolous claims and complaints against him. [Compl. ~ 17.] Plaintiff contends that 23 Khalil's claims are unsubstantiated but that DSH reassigned him to other departments and 24 continues to investigate the complaints, disrupt Plaintiffs work, and cause him to be perceived in 25 a negative light by his colleagues and coworkers. [Compl. ~~ 18-19.J Plaintiff is Asian 26 (Vietnamese) and 50 years old, and asserts that Khalil's actions were motivated by Plaintiffs 27 race, ethnicity and national origin. [Compl. ~~ 1, 13, 20, 23, 30.] Plaintiff also asserts Khalil's 28 2 Memorandum of Points and Authorities in Support of Defendant DSH's Demurrer to Plaintiff's Complaint (20CECG03078) 1 complaints and reassignments were harassing, severe, and pervasive and impacted Plaintiffs 2 work environment. [Compl. 121.] Plaintiff maintains that DSH has facilitated and failed to 3 prevent Khalil's discriminatory and harassing conduct. [Compl. 1121-22.] Plaintiff further 4 contends that in May 2019, DSH demanded that Plaintiff waive his discrimination and 5 harassment claims in exchange for a reduction in proposed discipline. [Compl. 123.] Plaintiff 6 alleges that because he did not waive his claims against DSH, DSH retaliated against him by 7 imposing a 5% salary reduction. [Compl. 124.] 8 Plaintiff asserts that he filed a complaint with the California Department of Fair 9 Employment and Housing (DFEH) and received a right-to-sue letter on October 22, 2019. 10 [Compl. 112.] Although Plaintiff has provided the right-to-sue letter to DSH's counsel, he has 11 not provided the underlying DFEH complaint nor has he attached the DFEH complaint or the 12 right-to-sue letter to his civil complaint. [See DSH's Declaration of Compliance with Meet and 13 Confer Requirements 13, filed concurrently herewith.] 14 Prior to bringing this demurrer, counsel for Defendant DSH met and conferred with 15 Plaintiffs counsel as required by Code of Civil Procedure§ 430.41. [Id.] 16 LEGAL STANDARD 17 The basic sufficiency of pleading is well-settled and straightforward: "A complaint ... shall 18 contain ... [a] statement of the facts constituting the cause of action .... " [Code Civ. Proc., 19 § 425.lO(a).] "This requirement obligates the plaintiff to allege ultimate facts that, taken as 20 a whole, apprise the defendant of the factual basis of the claim." [Scholes v. Lambirth Trucking 21 Co. (2017) 10 Cal.App.5th 590, 598, affd (2020) 8 Cal. 5th 1094.] "Doubt in the complaint may 22 be resolved against plaintiff and facts not alleged are presumed not to exist." [Krammer v. Intuit, 23 Inc. (2004) 121 Cal.App.4th 574, 578.] 24 A defendant may object to a civil complaint and file a demurrer if the pleading is uncertain 25 or does not state facts sufficient to constitute a cause of action. [Code Civ. Proc., § 430.1 O(e)- 26 (f).] A court treats "the demurrer as admitting all material facts properly pleaded, but not 27 contentions, deductions, or conclusions of fact or law." [Progressive West Ins. Co. v. Super. Ct. 28 (2006) 135 Cal.App.4th 263, 269.] A court also considers matters which may be judicially 3 Memorandum of Points and Authorities in Support of Defendant DSH's Demurrer to Plaintiff's Complaint (20CECG03078) \. 1 noticed. [Code. Civ. Proc., § 430.30(a); Britz, Inc. v. Dow Chemical Co. (1999) 73 Cal.App.4th 2 177, 179-80 (taking judicial notice of settlement agreement and sustaining defendant's demurrer 3 to plaintiff's compliant).] 4 Although the allegations of a complaint are typically accepted as true, allegations are not 5 accepted as true if they contradict or are inconsistent with judicially noticeable facts. [Evans v. 6 City of Berkeley (2006) 38 Cal.4th 1, 20 ("[A] demurrer assumes the truth of the complaint's 7 properly pleaded allegations, but not of mere contentions or assertions contradicted by judicially 8 noticeable facts."); see, e.g., Cansino v. Bank ofAmerica (2014) 224 Cal.App.4th 1462, 1474 9 (sustaining demurrer and rejecting allegation that defendant enticed plaintiffs to purchase a house, 10 when the judicially noticed deeds of trust showed that plaintiffs were refinancing, not 11 purchasing); Kalnoki v. First American Trustee Servicing Solutions, LLC (2017) 8 Cal.App.5th 12 23, 38-39 (court disregarded the plaintiff's allegations that were contrary to judicially noticed 13 deeds of trust and merger documents). 14 Finally, while it is often true that a demurrer should not be sustained without leave to 15 amend, the burden is on the plaintiff to show in what manner they can amend the complaint and 16 how that amendment will cure the deficient pleading. [Zelig v. County of Los Angeles (2002) 17 27 Cal.4th 1112, 1126.] 18 ARGUMENT 19 I. DEFENDANT DSH's DEMURRER SHOULD BE SUSTAINED TO PLAINTIFF'S FIRST CAUSE OF ACTION FOR RACE AND NATIONAL ORIGIN DISCRIMINATION As 20 PLAINTIFF FAILS TO ST ATE A CLAIM 21 In order to establish a prima facie case of discrimination, a plaintiff is required to plead that 22 (1) he was a member of a protected class; (2) he was subjected to an adverse employment action; 23 (3) he was satisfactorily performing his job when the adverse action was taken against him; and 24 (4) circumstances that suggest that his employer acted with a discriminatory motive. [Guz v. 25 Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 355.] 26 Here, Plaintiff has not alleged any facts that suggest Khalil or DSH acted with 27 a discriminatory motive, the fourth requirement. Plaintiff only states that he is Asian 28 (Vietnamese) [see Compl. ~~ 1, 13, 20, 23] without any supporting allegations that suggest that 4 Memorandum of Points and Authorities in Support of Defendant DSH's Demurrer to Plaintiffs Complaint (20CECG03078) 1 any conduct he alleged took place was because of his race or national origin. The entire 2 complaint is devoid of specific factual allegations linking any conduct to Plaintiff's race or 3 national origin. 4 Although Plaintiff asserts that Khalil's conduct was "motivated" by Plaintiff's race and 5 national origin [see Compl. ~~ 20, 23, 30], these threadbare conclusions are untethered to any 6 facts and insufficient to state a claim for discrimination. [See Gray v. Superior Court (1986) 7 181 Cal.App.3d 813,820 (demurrer was properly sustained to the plaintiff's cause of action for 8 wrongful termination based on gender discrimination where no specific facts alleged) 9 disapproved of on other grounds by Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 350-51; 10 see also Berger v. California Ins. Guarantee Assn. (2005) 128 Cal.App.4th 989, 1006 (allegation 11 that plaintiffs "gave timely and adequate notice of claim" was insufficient on demurer; "This 12 allegation states only a legal conclusion, rnther than pleading facts, and, as such, is inadequate"); 13 Zumbrun v. Univ. of Southern California (1972) 25 Cal.App.3d 1, 8 ("General and indefini!e 14 assertions of liability are not sufficient compliance with the rules of pleading . . . . Facts, not 15 conclusions, must be pleaded.").]. 16 Thus, the Court should sustain DSH' s demurrer to Plaintiff's First Cause of Action because 17 Plaintiff has failed to allege any/acts that any conduct that he alleges took place was·because of 18 his race or national origin. 19 II. DEFENDANT DSH's DEMURRER SHOULD BE SUSTAINED TO PLAINTIFF'S SECOND CAUSE OF ACTION FOR RACE, NATIONAL ORIGIN, AND AGE HARASSMENT 20 A. Plaintiff Fails to State a Claim for Race, National Origin, and Age 21 Harassment 22 In order to establish a primafacie case of a hostile work environment, a plaintiff is required 23 to plead that: (1) he belongs to a protected group (e.g. race, national origin, age); (2) he was 24 subjected to unwelcome harassment; (3) the harassment was based upon that protected group; 25 (4) the harassment was sufficiently severe or pervasive so as to alter the conditions of 26 employment and create an abusive working environment; and (5) the employer is liable for the 27 harassment. [Thompson v. City of Monrovia (2010) 186 Cal.App.4th 860,876; Fisher v. 28 San Pedro Peninsula Hosp. (1989) 214 Cal.App.3d 590, 608.] 5 Memorandum of Points and Authorities in Support of Defendant DSH's Demurrer to Plaintiffs Complaint (20CECG03078) 1 Again, here, Plaintiff has not alleged any facts that suggest Khalil or DSH acted based upon 2 a protected group, the third requirement. Plaintiff only states that he is Asian (Vietnamese) and 3 50 years old. [See Compl. ~~ 1, 13, 20, 23.] There are no factual allegations suggesting that any 4 supposed conduct was because ofhis race, national origin or age. The entire complaint is devoid 5 of any specific factual allegations linking any conduct to Plaintiffs race, national origin, or age. 6 And although Plaintiff asserts that Khalil's conduct was "motivated" by Plaintiffs race and 7 national origin [see Compl. ~~ 20, 23, 30], such legal conclusions are untethered to any facts and 8 insufficient to state a claim for harassment [See Gray, supra, 181 Cal.App.3d at 820; Berger, 9 supra, 128 Cal.App.4th at 1006; Zumbrun, supra, 25 Cal.App.3d at 8.] Furthermore, there are 10 absolutely no allegations that Khalil's conduct was motivated by age. Thus, Defendant's 11 demurrer to Plaintiffs Second Cause of Action should be sustained because Plaintiff has failed to 12 allege any facts that any harassment was because of his race, national origin, or age. 13 B. Plaintiff's Second Cause of Action for Harassment Fails Because All of the Conduct Alleged Are Personnel-Related Actions, Which Are Not 14 Actionable 15 Plaintiffs Second Cause of Action for harassment also fails because he has not alleged any 16 actionable harassment under FEHA. The California Supreme Court has held that "harassment" 17 does not include "personnel management actions such as hiring and firing, job or project 18 assignments, office or work station assignments, promotion or demotion, performance 19 evaluations, the provision of support, the assignment or nonassignment of supervisory functions, 20 deciding who will and who will not attend meetings, deciding who will be laid off, and the like." 21 [Reno v.Baird (1998) 18 Cal. 4th 640, 646-47 (citing Janken v. GM Hughes Electronics (1996) 22 46 Cal.App.4th 55, 64-65).] These "personnel decisions [are an] inherent and unavoidable part of 23 the supervisory function" and "[w]ithout making personnel decisions, a supervisory employee 24 simply cannot perform his or her job duties." [Id.] Although such personnel actions may be 25 alleged to be discriminatory, they cannot constitute harassment as a matter oflaw. [Id. 26 ("Harassment, by contrast, consists of actions outside the scope of job duties which are not of 27 a type necessary to business and personnel management. This significant distinction underlies the 28 differential treatment of harassment and discrimination in the FEHA.")] 6 Memorandum of Points and Authorities in Support of Defendant DSH's Demurrer to Plaintiff's Complaint (20CECG03078) 1 Here, Plaintiff alleges that Defendant Khalil was his supervisor [Compl. 1 14] and that 2 Khalil's conduct led to unsubstantiated investigations into Plaintiff, Plaintiffs reassignment and 3 Plaintiffs discipline. [Compl. 11 17-20.] Even if true, these allegations are precisely the type of 4 personnel management actions that cannot constitute actionable harassment under Reno. Thus, 5 Plaintiffs Second Cause of Action for harassment fails. 6 Ill. DEFENDANT DSH's DEMURRER SHOULD BE SUSTAINED TO PLAINTIFF'S THIRD CAUSE OF ACTION FOR FAILURE TO PREVENT DISCRIMINATION AND HARASSMENT 7 8 As Plaintiff has not stated a cause of action as to his First and Second Causes of Action for 9 discrimination and harassment, he cannot state a cause of action for the derivative claim for 10 failure to prevent discrimination and harassment under Gov. Code,§ 12940(k). [Okorie v. 11 Los Angeles Unified Sch. Dist. (2017) 14 Cal.App.5th 574, 597 ("A failure to prevent 12 discrimination claim is a derivative claim-a plaintiff cannot maintain a cause of action for 13 failure to investigate or prevent harassment unless there was actionable harassment.") (citing 14 Trujillo v. N Cty. Transit Dist. (1998) 63 Cal.App.4th 280, 289).] Accordingly, the Court should ' 15 sustain DSH' s demurrer to Plaintiffs Third Cause of Action. 16 IV. DEFENDANT DSH's DEMURRER SHOULD BE SUSTAINED TO PLAINTIFF'S FOURTH CAUSE OF ACTION FOR RETALIATION 17 A. Plaintiff Fails to Allege Any Causal Link Between Any Protected Activity 18 and an Adverse Employment Action 19 To establish a prima facie case of retaliation, a plaintiff must allege that (1) he engaged in 20 a protected activity; (2) his employer subjected him to an adverse employment action; and 21 (3) there was a causal link between the protected activity and the employment action. [Flait v. 22 North American Watch Corp. (1992) 3 Cal.App.4th 467, 476.] 23 Here, Plaintiff has not sufficiently pled that there was any causal link between a protected 24 activity and an adverse employment action, the third requirement. Plaintiff fails to allege when 25 any adverse conduct allegedly occurred. Without any time frame or dates, he has not sufficiently 26 alleged that any adverse employment action was subsequent to or caused by any protected 27 activity. [See Loggins v. Kaiser Permanente Internat. (2007) 151 Cal.App.4th 1102, 1110 (causal 28 7 Memorandum of Points and Authorities in Support of Defendant DSH's Demurrer to Plaintiff's Complaint (20CECG03078) 1 link in retaliation claims shown by temporal proximity).] Thus, Plaintiff's Fourth Cause of 2 Action for Retaliation should be dismissed. 3 B. Judicially Noticeable Documents Show That Plaintiff Has Not Been Subject to a Reduction in Pay as an Adverse Employment Action 4 5 Additionally, the Court should also sustain Defendant's Demurrer on the same grounds set 6 forth in Defendant DSH's Motion to Strike the Complaint, namely that Plaintiff was never subject 7 to any reduction in pay, and thus that cannot be the basis of any adverse employment action. In 8 his complaint, Plaintiff alleges after he refused to waive his PEHA claims against DSH, DSH 9 reduced his salary by 5%. [Compl., 24.] However, DSH did not ultimately reduce Plaintiff's 10 salary by 5%. The parties settled his discipline, replacing his pay reduction with a Letter of 11 Instruction. [See DSH's Request for Judicial Notice, Ex. A (Stipulation for Settlement, 1. 1] 12 Thus, Plaintiff's pay was never reduced as he received all back pay and benefits. [RJN, Ex. A 13 (Settlement Agreement, 2).] Furthermore, Plaintiff was not required to waive any claims. [RJN, 14 Ex. A (Settlement Agreement, 4 ("Dr. Pham does not waive any rights relating to those claims 15 set forth in DFEH Case Number 2019907-06690801.").J The State Personnel Board approved 16 this settlement agreement, finding it "consistent with the interests protected by the State's merit 17 civil service system .... " [RJN, Ex. A (Decision Approving Stipulation for Settlement).] 18 Accordingly, Plaintiff's allegation that he was subject to a 5% pay reduction should be 19 disregarded as it contradicts judicially noticeable documents, i.e., his State Personnel Board 20 settlement agreement which conclusively states that he is not subject to a 5% pay reduction. 21 [Evans, supra, 38 Cal.4th at 20 (court disregarded plaintiff's allegations that were contrary to 22 judicially noticed documents); Cansino, supra, 224 Cal.App.4th at 1474 (same); Kalnoki, supra, 23 1 DSH requests that the Court take judicial notice of Dr. Pham and DSH's settlement 24 agreement filed with the State Personnel Board (SPB). [See DSH's Request for Judicial Notice ("RJN"), filed concurrently herewith.] The settlement agreement is appropriate for judicial notice 25 under Evid. Code, § 453. [Evid. Code, § 453 (court "shall take judicial notice of any matter specified in Section 452" if the party provides "sufficient notice of the request" and "[f]urnishes 26 the court with sufficient information"); id. § 452(h) Gudicial notice appropriate where "[f]acts and propositions [] are not reasonably subject to dispute and are capable of immediate and accurate 27 determination by resort to sources of reasonably indisputable accuracy"); see Manavian v. Dep 't of Justice (2018) 28 Cal.App.5th 1127, 1135 n.2 (granting judicial notice of SPB documents).] 28 8 Memorandum ofpoints and Authorities in Support of Defendant DSH's Demurrer to Plaintiff's Complaint (20CECG03078) 1 8 Cal.App.5th at 38-39 (same); see also Meeks v. Autozone, Inc. (2018) 24 Cal.App.5th 855, 879 2 (holding that threatened adverse action does not constitute an adverse employment action). The 3 Court should disregard any allegations that Plaintiff's pay was reduced and sustain Defendant's 4 demurrer to Plaintiff's Fourth Cause of Action as Plaintiff cannot allege the requisite adverse 5 employment action for his retaliation claim. 6 C. Defendant DSH's Motion to Strike Shows that Plaintifrs Retaliation Claim is Improperly Based on Confidential Settlement Negotiations 7 8 Additionally, as set forth in Defendant DSH's Motion to Strike the Complaint, Plaintiff 9 inappropriately recites and relies on what, if they occurred, would be confidential settlement 10 negotiations to support his retaliation claim in contravention of California Evidence Code section 11 1152 subdivision (a). That section prohibits using any conduct or statements made in negotiation 12 for settlement as admissions in later litigation. [Law Rev. Comm. Cmts. to Evid. Code,§ 1152; 13 Evid. Code, § 1152(a) ("Evidence that a person has, in compromise ... furnished or offered or 14 promised to furnish money or any other thing, act, or service to another who has sustained or will 15 sustain or claims that he or she has sustained or will sustain loss or damage, as well as any 16 conduct or statements made in negotiation thereof, is inadmissible to prove his or her liability for 17 the loss or damage or any part of it."); Mangano v. Verity, Inc. (2009) 179 Cal.App.4th 217, 18 222-23 (trial court properly excluded the employer's proposed separation agreement to plaintiff in 19 later civil litigation under Evid. Code, § 1152). 20 Here, as set forth in DSH's motion to strike, filed concurrently herewith, even if DSH had 21 tried to negotiate a litigation waiver to resolve Plaintiff's State Personnel Board appeal from 22 discipline which resulted from the investigation of one of Dr. Khalil's complaints against 23 Plaintiff-and it's not clear at this stage that this is what occurred-it is entirely inappropriate to 24 refer to these discussions which are barred by Evidence Code section 1152. Thus, because 25 Plaintiff's recital of these alleged discussions are inappropriate and should be stricken from the 26 complaint, no factual allegations remain in support of Plaintiff's retaliation claim. Therefore, 27 DSH's demurrer to Plaintiff's Fourth Cause of Action should be sustained. 28 Ill 9 Memorandum of Points and Authorities in Support of Defendant DSH's Demurrer to Plaintiffs Complaint (20CECG03078) 1 V. DEFENDANT DSH's DEMURRER SHOULD BE SUSTAINED As PLAINTIFF HAS FAILED TO SHOW THAT HE HAS EXHAUSTED HIS ADMINISTRATIVE REMEDIES 2 3 Prior to bringing a civil action under FEHA, an employee must first file an administrative 4 complaint with the California Department of Fair Employment and Housing (DFEH) (or the 5 Equal Employment Opportunity Commission). [Gov. Code,§§ 12960, 12965(b); Martin v. 6 Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th 1718, 1724.] An administrative complaint 7 must set forth the alleged unlawful acts and "set forth the particulars thereof." [Gov. Code, 8 § 12960(c).] The charge must state enough facts to allow the DFEH to perform its statutory duty 9 to investigate the claims being made and to supply fair notice to the employer. [See Gov. Code, 10 § 12963 (providing that the DFEH will investigate "[a]fter the filing of any complaint alleging 11 facts sufficient to constitute a violation of any of the provisions of this part"); Zumbrun v. Univ. of 12 Southern California (1972) 25 Cal.App.3d 1, 8.).] Plaintiff bears the burden of pleading a timely 13 and sufficient administrative complaint and that a right-to-sue has been obtained, thereby 14 exhausting his administrative remedies. [Jumaane v. City of Los Angeles (2015) 241 Cal.App.4th 15 1390, 1402.] 16 If the plaintiff attempts to bring a civil complaint based on acts not specified in the 17 administrative complaint, or not "like or reasonably related to" those charges put before the 18 DFEH, then a civil suit on those acts is barred. [Martin, supra, 29 Cal.App.4th at 1724 ("To 19 exhaust his or her administrative remedies as to a particular act made unlawful by the Fair 20 Employment and Housing Act, the claimant must specify that act in the administrative complaint, 21 even if the complaint does specify other cognizable wrongful acts."). Courts have frequently 22 dismissed civil claims for failure to exhaust administrative remedies when the plaintiff alleges 23 facts in his civil complaint that were neither like nor reasonably related to those allegations in his 24 DFEH charge. [See, e.g., Wills v. Superior Court (2011) 195 Cal.App.4th 143, 153-54, 157-58 25 (plaintiff did not exhaust administrative remedies for retaliation, harassment, failure to prevent 26 harassment, failure to engage in interactive process, or failure to accommodate claims where 27 DFEH complaint only alleged employer refused to reinstate plaintiff following medical leave); 28 Okoli v. Lockheed Technical Operations Co. (1995) 36 Cal.App.4th 1607, 1612-13, 1617 10 . Memorandum of Points and Authorities in Support of Defendant DSH's Demurrer to Plaintiffs Complaint (20CECG03078) 1 (plaintiff did not exhaust administrative remedies for retaliation claim where DFEH complaint 2 only alleged race and national origin discrimination); Yurick v. Superior Court (1989) 209 3 Cal.App.3d 1116, 1121-23 (plaintiff did not exhaust administrative remedies for age harassment 4 claim where DFEH complaint only alleged gender discrimination).] Put another way, the scope 5 of the plaintiffs administrative complaint limits the scope of the subsequent civil action. 6 Here, Plaintiff alleges he filed a DFEH complaint, however, he fails to attach the 7 underlying DFEH complaint or identify its content. [DSH's Meet and Confer Deel.~ 3.] 8 Without the specifics of his administrative complaints, he cannot show that he has exhausted any 9 of his claims in this case. For example, he cannot demonstrate that he specified any ageist 10 harassing acts in his DFEH complaint or that he made any allegations that might be like or 11 reasonably related to age harassment in his DFEH complaint. As Plaintiff has failed to meet his 12 burden to exhaust the requisite administrative remedies to pursue any claims, DSH's demurrer 13 should be sustained as to Plaintiffs First, Second, Third and Fourth Causes of Action. 14 CONCLUSION 15 Defendant DSH requests that the Court sustain its demurrer to Plaintiffs Complaint. 16 Plaintiffs First and Second Causes of Action have no facts to suggest that any alleged conduct 17 was due to his race, national origin, or age, and therefore, the conduct cannot be discriminatory or 18 harassing in violation of FERA. Accordingly, his derivative Third Cause of Action for Failure to 19 Prevent Discrimination and Harassment must also fail. Furthermore, his Fourth Cause of Action 20 for retaliation fails because he has not alleged any causal link between any protected activity and 21 an adverse employment action. Additionally, his supposed pay reduction of 5% contradicts his 22 signed State Personnel Board Settlement Agreement-a judicially noticeable document. 23 Furthermore, his retaliation claim is based on confidential settlement negotiations, which should 24 be stricken. Finally, Plaintiff has not met his burden to demonstrate he has exhausted his 25 administrative remedies as to all claims, but particularly as to his Second Cause of Action to the 26 extent that it alleges age harassment. 27 Ill 28 Ill 11 Memorandum of Points and Authorities in Support of Defendant DSH's Demurrer to Plaintiff's Complaint (20CECG03078) 1 Dated: January 19, 2021 Respectfully Submitted, 2 XAVIER BECERRA Attorney General of California 3 ANDREA R. AUSTIN Supervising Deputy Attorney General 4 5 6 JINNIFER D. PITCHER 7 Deputy Attorney General Attorneys for Defendant 8 Cal[fornia Department of State Hospitals 9 SA2020304545 34747650.docx 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12 Memorandum of Points and Authorities in Support of Defendant DSH ' s Demurrer to Plaintiffs Complaint (20CECG03078) DECLARATION OF SERVICE BY E-MAIL AND U.S. MAIL Case Name: Minh-Due Pham v. DSH, et al. Case No.: 20CECG03078 I declare: I am employed in the Office of the Attorney General, which is the office of a member of the California State Bar, at which member's direction this service is made. I am 18 years of age or older and not a paiiy to this matter. I am familiar with the business practice at the Office of the Attorney General for collection and processing of c01Tespondence for mailing with the United States Postal Service. In accordance with that practice, correspondence placed in the internal mail collection system at the Office of the Attorney General is deposited with the United States Postal Service with postage thereon fully prepaid that same day in the ordinary course of business. On January 19, 2021, I served the attached MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT CALIFORNIA DEPARTMENT OF STATE HOSPITALS' DEMURRER TO PLAINTIFF'S COMPLAINT by transmitting a true copy via electronic mail. In addition, I placed a true copy thereof enclosed in a sealed envelope, in the internal mail system of the Office of the Attorney General, addressed as follows: Joseph D. Larsen Jeremy J. Schroeder, Esq. Rutan & Tucker, LLP Flesher Schaff & Schroeder 18575 Jamboree Road, 9th Floor 2202 Plaza Drive Irvine, CA 92612 Rocklin, CA 95765 E-mail Address: jlarsen@rutan.com E-mail Address: jjs@fsslawfirm.com Attorneys for Plaintiff Attorneys/or Defendant, Victor Khalil I declare under penalty of pe1jury under the laws of the State of California and the United States of America the foregoing is true and correct and that this declaration was executed on January 19, 2021, at Sacramento, California. \ J~J " . A-· ." ' /1 /J . Marianne Baschiera vv VL{).IU_(I'-"' r ~ 01llJ ~ Declarant Signature SA2020304545 34747968.docx