Vanessa Singh vs. State of California, Department of General Services

If a litigant has been granted a fee waiver and requests a court reporter, the party must submit a Request for Court Reporter by a Party with a Fee Waiver (CV/E-211) and it must be filed with the clerk at least 10 days prior to the hearing or at the time the proceeding is scheduled if less than 10 days away. Once approved, the clerk will be forward the form to the Court Reporter’s Office and an official reporter will be provided.

34-2022-00328643-CU-OE-GDS: Vanessa Singh vs. State of California, Department of General Services 08/01/2023 Hearing on Demurrer - Civil Law and Motion - Demurrer/JOP in Department 53

TENTATIVE RULING: Defendant California Department of General Services’ (“DGS”) demurrer to Plaintiff Vanessa Singh’s first amended complaint (“FAC”) is ruled upon as follows.

DGS’ unopposed request for judicial notice is granted.

In the FAC, Plaintiff allege causes of action for retaliation in violation of FEHA, discrimination in violation of FEHA, failure to prevent in violation of FEHA, and retaliation in violation of Labor Code § 1102.5. The FAC arises from Plaintiff’s employment with DGS. Plaintiff alleges that she was demoted from her position as a Staff Services Manager in late September 2019. (FAC ¶ 5.) She alleges that she demanded a Skelly hearing and filed a complaint with the State Personnel Board (“SPB”). (Id. ¶ 8.) Plaintiff alleges that on April 15, 2020, an Administrative Law Judge sustained the charges in the Notice of Adverse Action and that the Skelly hearing was fair. (Id.) Plaintiff alleges that she filed a complaint in case no. 2020-00287975 which named her supervisor Amy Applegate and DGS. Plaintiff dismissed the action in July 2022. (Id. ¶ 9.)

As seen from DGS’ request for judicial notice, the Court previously sustained DGS’ demurrer to a FEHA retaliation cause of action in case no. 2020-00287975. The Court sustained DGS’ demurrer to the retaliation cause of action on the basis that the alleged protected activity and retaliatory actions were premised on facts occurring prior to a SPB decision. The SPB decision involved Plaintiff’s appeal of a demotion from her Staff Services Manager II position. The SPB found that Plaintiff’s former supervisor’s actions were proper and nondiscriminatory and sustained the demotion.

Plaintiff never sought a writ of mandate to challenge the SPB decision. In sustaining the demurrer to the FAC, the Court found that the conduct set forth in the retaliation cause of action was premised on conduct adjudicated by the SPB and were barred by judicial exhaustion, res judicata and collateral estoppel. Plaintiff was given leave to amend to allege protected activity and adverse employment action other than that already adjudicated by the SPB. (RJN Exh. D.) In ruling on DGS’ demurrer to the second amended complaint in case no. 2020-00287975, the Court again found that Plaintiff based her retaliation claims on facts occurring prior to the SPB decision and that with respect to the conduct that occurred later, none of the conduct amounted to an adverse employment action.

The Court gave leave to amend in connection with the retaliation and failure to prevent causes of action. (Id. Exh. E.) DGS then demurred to the third amended complaint but Plaintiff dismissed the action without prejudice.

DGS now demurs to the first cause of action for retaliation in violation of FEHA and the fourth cause of action for retaliation on violation of Labor Code § 1102.5.

A demurrer “tests the pleadings alone and not the evidence or other extrinsic matters.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.) The purpose of a demurrer is to test the legal sufficiency of a claim. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal. App. 4th 968,

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2022-00328643-CU-OE-GDS: Vanessa Singh vs. State of California, Department of General Services 08/01/2023 Hearing on Demurrer - Civil Law and Motion - Demurrer/JOP in Department 53

994.) For the purpose of determining the effect of a complaint, its allegations are liberally construed, with a view toward substantial justice. (CCP § 452; Amarel v. Connell (1988) 202 Cal.App.3d 137, 140-141; Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 43, fn. 7.) The Court treats the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law, and considers matters which may be judicially noticed. (Blank v. Kirwan (1985) 39 Cal.3d at 318; Poseidon Development, Inc. v.

Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1111-1112.) A general demurrer does not admit contentions, deductions, or conclusions of fact or law alleged in the complaint; facts impossible in law; or allegations contrary to facts of which a court may take judicial notice. (Blank, supra, 39 Cal. 3d at 318, William S. Hart Union High School Dist. v. Regional Planning Com. (1991) 226 Cal. App. 3d 1612, 1616 fn.2.) Extrinsic evidence may not properly be considered on demurrer or on a motion to strike. (Ion Equipment Corp. v.

Nelson (1980) 110 Cal. App. 3d 868, 881; Hibernia Savings & Loan Soc. v. Thornton (1897) 117 C. 481, 482.)

A demurrer may be sustained only if the complaint lacks any sufficient allegations to entitle the plaintiff to relief. (Financial Corp. of America v. Wilburn (1987) 189 Cal. App. 3d 764, 778.) “Plaintiff need only plead facts showing that he may be entitled to some relief . . ., we are not concerned with plaintiff's possible inability or difficulty in proving the allegations of the complaint.” (Highlanders, Inc. v. Olsan (1978) 77 Cal. App. 3d 690, 696-697.) “[Courts] are required to construe the complaint liberally to determine whether a cause of action has been stated, given the assumed truth of the facts pleaded.” (Picton v.

Anderson Union High School Dist. (1996) 50 Cal. App. 4th 726.) A demurrer admits the truth of all material facts properly pled and the sole issue raised by a general demurrer is whether the facts pled state a valid cause of action - not whether they are true. (Serrano v. Priest (1971) 5 Cal. 3d 584, 591.)

First Cause of Action (FEHA Retaliation)

A prima facie case of retaliation in violation of FEHA requires Plaintiff to show (1) that she engaged in protected activity; (2) Defendant subjected her to an adverse employment action; and (3) a causal link between the protected activity and the adverse action. (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.)

In this cause of action, Plaintiff alleges she engaged in protected activity when she demanded a Skelly hearing and appealed to the SPB and also when she filed her complaint in case 2020- 00287975. (FAC ¶¶ 13, 15.) Plaintiff alleges she was subjected to adverse employment action when her supervisor intervened in the hiring process to provide the hiring manager an option to decline Plaintiff’s application for a job opening with the Office of State Printing. (Id. ¶¶ 16, 17.) She alleges that Lina Lyda was biased against her and that Lyda skewed the merit process by failing to contact Plaintiff’s references, attempting to contact a prior supervisor that was not listed as a reference, and not giving proper weight to interview scores. (FAC ¶¶ 18, 21, 22.)

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2022-00328643-CU-OE-GDS: Vanessa Singh vs. State of California, Department of General Services 08/01/2023 Hearing on Demurrer - Civil Law and Motion - Demurrer/JOP in Department 53

Plaintiff alleges that the job was given to a younger less qualified person. (Id. ¶ 16.) Plaintiff alleges that she complained about the selection process and never received a response. (Id. ¶¶ 24, 25.) Plaintiff also alleges that DGS retained a copy of her Notice of Adverse Action in her personnel file rather than a separate disciplinary file which included portions that had been redacted during the SPB hearing. (Id. ¶ 30.) Plaintiff also alleges that she was directed to volunteer for COVID contact tracing in November 2020. (Id. ¶ 31.)

DGS argues that this cause of action is barred by collateral estoppel and res judicata as it contains allegations previously found deficient in case 2020-00287975. To that end, DGS argues that Plaintiff cannot rely upon her participation in the Skelly hearing as protected activity. As support for that proposition, DGS cites to the fact that when the Court sustained DGS’ demurrer to the second amended complaint in the prior action it ruled that “[P]laintiff is barred by principles of collateral estoppel from contending that any action prior to the SPB decision can support her claim for retaliation under the FEHA. The Court will not again address the alleged protected conduct that was previously held to be barred by the SPB decision, as that conduct goes beyond the scope of leave to amend and the Court is not reconsidering its prior determination.” (RJN, Exh. E, p. 2.)

The Court finds that the previous rulings did not preclude Plaintiff from alleging that her participation in the Skelly hearing and/or the SPB hearing was protected activity. Indeed, in sustaining the demurrer to the first cause of action for FEHA retaliation in the first amended complaint in the prior action, the Court considered Plaintiff’s argument that her testimony before the SPB was protected activity that caused adverse action, but simply found that Plaintiff did not allege that her testimony in the SPB action was protected activity that caused later adverse employment action in retaliation for that testimony. (RJN Exh.

D, p. 4.) Plaintiff was given leave to amend “to allege protected activity and retaliatory actions other than those adjudicated by the SPB decision.” (Id.) The Court never ruled that Plaintiff could not allege that participation in the SPB hearing was protected activity. The Court would note that the ruling in the demurrer to the second amended complaint in the prior action is somewhat unclear because it indicates that leave was only given to “allege protected activity under FEHA that occurred after the SPB decision.

Although not raised in the FAC nor specifically addressed in this Court’s prior order, the issue of Plaintiff’s Skelly violation claim falls within the category of actions recognized by this Court as precluded by collateral estoppel for having been adjudicated and resolved against Plaintiff by the SPB.” (Id. Exh. E, p. 2 [emphasis in original].) The Court finds this language unclear because the previous ruling recognized that Plaintiff had not alleged that her participation in the Skelly hearing or the SPB hearing itself was the protected activity.

Further, the SPB ruling itself could not have found that Plaintiff’s participation in a hearing could not constitute protected activity with respect to adverse employment action occurring after the SPB decision. In this Court’s view, the Court did not definitively rule that participation in the Skelly hearing or the SPB hearing could not as a matter of law constitute protected activity in

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2022-00328643-CU-OE-GDS: Vanessa Singh vs. State of California, Department of General Services 08/01/2023 Hearing on Demurrer - Civil Law and Motion - Demurrer/JOP in Department 53

connection with adverse employment action that occurred after the SPB decision. Rather the Court was focused on Plaintiff’s attempt to continue to challenge the issues raised in the Skelly hearing, to that end, her demotion, when those issues were resolved by the SPB hearing. This conclusion is supported by the fact that when the Court granted DGS’ motion to strike it stated that allegations regarding defects in the Skelly hearing must be stricken because those issues had been resolved by the SPB final decision. (RJN Exh.

F.) But defects in the Skelly hearing are different from allegations that participation in the Skelly hearing/SPB hearing was protected conduct. Indeed, participation in a Skelly hearing can constitute protected activity. (George v. California Unemployment Ins. Appeals Bd. (2009) 179 Cal.App.4th 1475, 1490.) But even if DGS was correct that the Court did so rule, this would not mean that the demurrer must be sustained because Plaintiff also alleged that she engaged in the protected activity of filing the complaint in the prior action.

DGS next argues that Plaintiff failed to allege she suffered an adverse employment action. The Court disagrees. “[A]lthough an adverse employment action must materially affect the terms, conditions, or privileges of employment to be actionable, the determination of whether a particular action or course of conduct rises to the level of actionable conduct should take into account the unique circumstances of the affected employee as well as the workplace context of the claim.” (Yanowitz, supra, 36 Cal.4th at 1052.) “Minor or relatively trivial adverse actions or conduct by employers or fellow employees that, from an objective perspective, are reasonably likely to do no more than anger or upset an employee cannot properly be viewed as materially affecting the terms, conditions, or privileges of employment and are not actionable ” (Id. at 1054.) “The ‘materiality’ test encompasses not only ultimate employment decisions, but ‘also the entire spectrum of employment actions that are reasonably likely to adversely and materially affect an employee’s job performance or opportunity for advancement in his or her career.’” (Patten v.

Grant Joint Union High School Dist. (2005) 134 Cal.App.4th 1378, 1387.) The proper analysis is not limited to “whether each alleged retaliatory act constitutes an adverse employment action in and of itself.” (Yanowitz, supra, 36 Cal.4th at 1055.) Rather, “there is no requirement that an employer’s retaliatory acts constitute one swift blow, rather than a series of subtle, yet damaging, injuries.” (Id.) “We conclude a series of separate retaliatory acts collectively may constitute an ‘adverse employment action’ even if some or all of the component acts might not be individually actionable.” (Id. at 1041.)

DGS points to the fact that the Court found in the prior action that “the failure to investigate [Plaintiff’s merit appeal] to [her] satisfaction, and directing plaintiff to assist during a pandemic cannot form the basis of a retaliation claim because they are not adverse actions under FEHA.” (RJN Exh. E, p.2.) However, Plaintiff also alleged that she interviewed for a job which DGS which ultimately went to a younger less qualified individual and that DGS

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2022-00328643-CU-OE-GDS: Vanessa Singh vs. State of California, Department of General Services 08/01/2023 Hearing on Demurrer - Civil Law and Motion - Demurrer/JOP in Department 53

employees interfered with the process to ensure Plaintiff was not hired. (FAC ¶¶ 16-19, 23.) Plaintiff did not allege in the previous action that DGS directly interfered with the hiring process. DGS fails to explain how such allegations are not adverse employment action, other than apparently arguing that this action occurred prior to the time Plaintiff filed her complaint in the prior action in October 2020, such that there could be no causal connection. The Court, however, has already concluded that Plaintiff’s participation in the Skelly hearing/SPB hearing can constitute protected conduct, and the subject action occurred after that time.

Allegations that DGS directly interfered with Plaintiff’s attempt to advance her career certainly materially affected the terms, conditions, or privileges of employment. On this basis alone, the Court finds Plaintiff alleged she suffered adverse action.

In addition, Plaintiff alleged that DGS never lifted the recusal which prohibited her from participating from working with the OSP even though the basis for the recusal (romantic ties with OSP employees) no longer existed when she applied for the OSP job. (FAC ¶¶ 28-29.) Plaintiff alleged that she was being selectively disciplined because no one else was prohibited from working with OSP employees due to a previous romantic relationship. (Id.) Plaintiff also alleged that DGS maintained the Notice of Adverse Action, with exhibits, in her personnel file as opposed to a separate disciplinary file so that prospective hirers, including Lina Lyda, would see the information which would prejudice the hiring process. (Id. ¶ 30.)

Again, DGS does not specifically address these allegations other than at most indicating that Plaintiff did not allege any specific dates. But Plaintiff alleged that the recusal was in effect from September 24, 2019, and that the Notice of Adverse Action was dated September 3, 2019, and retained in her files. (Id. ¶¶ 28, 30.) In sum, taking all of the allegations as a whole (other than those discussed above which were found not to be adverse actions in the prior action), the Court finds that Plaintiff has adequately alleged that she suffered adverse employment action.

DGS’ demurrer to the first cause of action is overruled.

Fourth Cause of Action (Labor Code § 1102.5)

DGS’ demurrer is sustained with leave to amend.

Plaintiff alleges that she was reprimanded by Chief Gonzales when Plaintiff conducted a Skelly conference regarding another employee and recommended overturning an adverse action. (FAC ¶¶ 42-44.)

DGS demurs to the instant cause of action on the grounds that Plaintiff failed to allege compliance with the Government Tort Claims Act, that it is barred by the statute of limitations, and that the Court’s ruling in the prior action bars the cause of action.

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2022-00328643-CU-OE-GDS: Vanessa Singh vs. State of California, Department of General Services 08/01/2023 Hearing on Demurrer - Civil Law and Motion - Demurrer/JOP in Department 53

Here, the Court agrees that the cause of action is deficient for failure to allege compliance with the Tort Claims Act. Generally, no suit for money or damages may be brought against a public entity or public employee until a written claim has been presented to the entity and either acted upon or deemed rejected. (Gov’t Code §§ 945.4, 950.2.) “Compliance with the claims statute is mandatory, and failure to file a claim is fatal to the cause of action.” (Pacific Tel. & Tel. Co. v. Cnty. of Riverside (1980) 106 Cal.App.3d 183, 188.)

Compliance with the Tort Claims Act is an element of a cause of action for damages against a public entity or public employee. (State v. Superior Court (2004) 32 Cal.4th 1234, 1244.) “Timely claim presentation is not merely a procedural requirement, but rather, a condition precedent to a plaintiff’s maintaining an action against a defendant, and thus, an element of the plaintiff’s cause of action.” (K.J. Arcadia Unified School Dist. (2009) 172 Cal.App.4th 1229, 1238.) The Act requires the timely presentation of a written claim for money or damages directly to a public entity, and the rejection of that claim, as a condition precedent to a tort action against either the public entity or an individual public employee acting within the scope of his or her employment. (Gov’t §§ 911.2, 945.4, 950.2; State of California v.

Superior Court (Bodde) (2004) 32 Cal.4th 1234, 1239.) Failure to plead facts showing compliance with the Act or an excuse for noncompliance subjects the complaint to demurrer. (State of California, supra, 32 Cal.4th at 1245.)

Plaintiff has not pled compliance with the Tort Claims Act with respect to her fourth cause of action. Further, as noted above, DGS’ request for judicial notice was granted. This included a previous tort claim from September 2020 premised on a claim that Plaintiff’s demotion was unlawful, and which did not encompass any allegations in the instant cause of action. “The Court may take judicial notice of the filing and contents of a government claim but not the truth of the claim.” (Gong v. City of Rosemead (2014) 226 Cal.App.4th 363, 368, fn. 1.)

At most Plaintiff alleges she obtained a right to sue letter from the DFEH. (FAC ¶¶ 12, 50.) In her opposition, Plaintiff argues that she was not required to file a Tort Claims Act. She argues that a Labor Code § 1102.5 claim is not a common law claim subject to the claims process but fails to provide any authority on that point. Plaintiff is incorrect. The Tort Claims Act applies to Labor Code § 1102.5 claims. (Le Mere v. Los Angeles Unified School Dist. (2019) 35 Cal.App.5th 237, 245.) On this basis alone the demurrer is sustained.

In addition, as pled, the cause of action is barred by the statute of limitations. There is no dispute that the cause of action is governed by the three year statute of limitations in CCP § 338(a). Plaintiff alleges only that she was reprimanded on February 17, 2019, for recommending that an adverse action be overturned. (FAC ¶ 44.) The complaint was filed on October 20, 2022, but did not contain a Labor Code § 1102.5 claim. The claim was first raised when Plaintiff filed the FAC on February 3, 2023. Both filings were beyond the three year statute of limitations. In her opposition, Plaintiff appears to argue that the cause of action did not accrue until April 2021 when she left her employment with DGS after she was not given the promotion. However, the fourth cause of action makes no such allegations and does not even incorporate any allegations

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2022-00328643-CU-OE-GDS: Vanessa Singh vs. State of California, Department of General Services 08/01/2023 Hearing on Demurrer - Civil Law and Motion - Demurrer/JOP in Department 53

from the previous causes of action. As pled, it is premised only on being reprimanded in February 2019. As currently alleged the cause of action is untimely.

The Court, however, rejects DGS’ argument that the Court’s ruling in the previous action granting DGS’ motion to strike Plaintiff’s second amended complaint precludes this cause of action. There the Court ruled that “Plaintiff replaces her previously dismissed fourth cause of action under the Information Practices Act with an entirely new claim for violation of Labor Code section 1102.5, and amends her prayer for relief to seek related damages under the Labor Code. As these amendments directly contravene the Court’s ruling on Defendant’s demurrer to the FAC, they are ordered stricken and shall be removed from the Third Amended Complaint that is being allowed in the ruling on the demurrer.” (RJN Exh.

F.) However, the Court also made clear that the “ruling was without prejudice to making a motion to amend in the future a claim that is not precluded by the principal of res judicata or collateral estoppel.” (Id.) Thus, Plaintiff was not precluded as a matter of law from asserting a Labor Code § 1102.5 cause of action as DGS suggests. The fact that Plaintiff did not seek leave to amend in the previous action to add the Labor Code claim and instead filed a new action attempting to allege that claim that was not precluded by res judicata/collateral estoppel, is not an attempt to circumvent an adverse ruling in the previous action.

The Court notes that Plaintiff's counsel filed a notice of errata on July 21, 2023, indicating that she mistakenly included a version of a document in her declaration which was not redacted. The notice of errata states "[p]lease, take steps to remove the unredacted version from the online filing." (Shaefer Errata Decl. para. 3.) To the extent that Plaintiff believes that something should be redacted/sealed, she must make an appropriate motion to seal.

In summary, DGS’ demurrer is overruled as to the First Cause of Action and sustained with leave to amend as to the Fourth Cause of Action. Leave is granted as this is the first challenge to the complaint in this action upon which the Court has ruled.

Plaintiff may file and serve an amended complaint no later than August 15, 2023. Defendant shall file and serve its response within 30 days thereafter, 35 days if the amended complaint is served by mail as modified by the CCP 430.41 extension if necessary.

The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or further notice is required.