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. TENTATIVE RULING:

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

Defendant California Department of General Services’ (“DGS”) motion to strike portions of 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.

DGS moves to strike Plaintiff’s third cause of action, the fourth cause of action, and various allegations in the FAC.

A motion to strike is appropriate to strike out any irrelevant, false or improper matter asserted in any pleading and the Court may strike out all or any party of any pleading not drawn or filed in conformity with the law. (See Code Civ. Pro. § 436 (a)-(c).) A motion to strike challenges portions of a cause of action that are substantively defective on the face of the complaint. (PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1682-83; see also Code of Civ. Proc. § 437.) More specifically, a motion to strike should be granted to remove "any irrelevant, false, or improper matter inserted in any pleading," or where the pleadings are drawn in violation of a law, rule or court order. (Code of Civ. Proc. § 436.) Examples of "improper" matters include allegations which are "at variance with the contract." (California Sugar & White Pine Agency v. Penoyar (1914) 167 Cal. 274, 279.

“The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading, (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” (Code Civ. Proc, § 436.) A motion to strike is limited to the face of the challenged pleading or any matter of which the Court may take judicial notice. (CCP § 437(a).) The use of the motion to strike should be cautious and sparing. It should not be a procedural "line item veto". (PH II, Inc. v. Superior Court (1995) 33 Cal. App. 4th 1680, 1683.)

Third Cause of Action (Failure to Prevent Retaliation and Discrimination)

DGS’ motion is denied.

DGS argues that the third cause of action should be stricken because there is no such cause of action for “failure to prevent retaliation.” DGS points to Government Code § 12940(k) which makes it an unlawful employment practice for an employer “to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring.” (Gov. Code § 12940(k).) However, Courts have held that section 12940(k) claims extend to the failure to prevent

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 Motion to Strike - Civil Law and Motion in Department 53

retaliation under FEHA as well. (Taylor v. City of Los Angeles Dep’t of Water & Power (2006) 144 Cal.App.4th 1216, 1240 [disapproved on other grounds in Jones v. The Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158].) “A finding of actual discrimination, harassment, or retaliation under FEHA is required before a plaintiff may prevail under section 12940, subdivision (k).” (Dickson v. Burke Williams, Inc. (2015) 234 Cal.App.4th 1307, 1314 [emphasis added].) DGS’ argument is not supported by relevant authority.

Fourth Cause of Action (Labor Code § 1102.5)

DGS’ motion is denied. As it did in its demurrer, DGS argues that the cause of action is precluded by the Court’s ruling in the previous action. The Court rejected that argument in ruling on the demurrer and it is rejected here as well.

“Allegations Regarding Protected Activity, Adverse Employment Actions and Other Issues Precluded by the SPB Decision”

DGS next seeks to strike allegations in the FAC in which Plaintiff alleges she requested a Skelly hearing and filed a SPB complaint because she believed her demotion was discriminatory, that she was required to sign a recusal that was kept in her file, and related allegations. According to DGS, these allegations are precluded by the SPB decision regarding her demotion because they involve events occurring before the SPB decision and/or were within the categories of issues the Court held were barred when the Court granted DGS’ motion to strike allegations in the second amended complaint and sustained the demurrer to the second amended complaint. (RJN Exhs.

I, J.) DGS thus argues that the allegations violate a Court order and are subject to being stricken. However, none of the allegations referred to in this portion of DGS’ motion appear in any manner to violate any prior Court order and instead appear at most to constitute background allegations with respect to the theories now presented in this action, that is that DGS retaliated and/or discriminated against her as a result of either her participation in the Skelly hearing/SPB hearing or the act of filing a complaint in the prior action.

These allegations are not, as DGS suggests, an attempt to raise allegations that have previously been decided against Plaintiff by way of the SPB decision. Rather, they are allegations regarding the fact that Plaintiff challenged the adverse action (and the reasons for doing so) which was ultimately resolved against Plaintiff in the SPB hearing. Plaintiff also alleges that the recusal which while in effect before the SPB hearing, remained in effect long after the SPB hearing as a means for DGS to retaliate against her for participating in the SPB hearing.

As noted in the Court’s ruling on the demurrer, these allegations could well constitute adverse action. But she is not seeking to allege that anything that was the subject of the SPB hearing (other than the mere fact that she participated) is the basis for anything in this action as she sought to do in the prior action. None of the challenged allegations are barred by the Court’s rulings in the prior action.

This portion of the motion is also denied.

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 Motion to Strike - Civil Law and Motion in Department 53

“Allegations That the Court Previously Ruled Are Not Adverse Actions and Cannot Form the Basis for a Retaliation Claim”

Finally, DGS argues that any allegations regarding adverse employment action which the Court found in the prior action cannot constitute adverse action should be stricken because they violated the Court’s orders. The Court rejects this argument. While it is true, as this Court noted in its ruling on DGS’ demurrer, that the Court found in the previous action that allegations of a failure to investigate a merit appeal and directing Plaintiff to assist during a pandemic were not adverse actions as alleged in the previous action, that does not render the allegations subject to being stricken.

To that end, even if the actions were not adverse actions, they are again background factual allegations which at a minimum provide context for other actions. As noted in the ruling on the demurrer, with respect to adverse employment action, “[t]he ‘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 v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 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.)

Given that the FAC in this action contains additional allegations regarding DGS’ alleged interference with Plaintiff’s attempt to interview for and obtain a different position which were not before the Court in the previous action, the allegations DGS seeks to strike could be properly considered with the new allegations to determine whether there was an adverse action even if the acts are not themselves actionable on an individual basis.

This portion of the motion is also denied.

Prayer for Relief Regarding Prejudgment Interest and Fees Pursuant to Labor Code § 1102.5

DGS’ motion is granted. DGS seeks to strike Plaintiff’s prayer for relief related to her request for prejudgment interest and fees pursuant to Labor Code § 1102.5.

Here, given that Plaintiff does not allege that her damages are certain, prejudgment interest is not permitted. (Civ. Code § 3287.) Plaintiff does not specifically address this argument other than arguing that her request for interest and fees is permitted under Labor Code § 1102.5. However, the Court sustained DGS’ demurrer to the Labor Code § 1102.5 cause of action and thus there is no basis to request interest and fees based on that section as the FAC is currently pled.

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 Motion to Strike - Civil Law and Motion in Department 53

In summary, DGS’ motion is denied expect as to prayer for relief ## 3 and 5 at p. 11:21 and 11:24-25 respectively.

Given that the Court granted leave to amend in connection with the demurrer it also granted leave to amend where the motion to strike was granted.

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.