Silva v. Cal. Dept. of Transportation CA4/2 ( 2022 )

Filed 6/10/22 Silva v. Cal. Dept. of Transportation CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
RAUL M. SILVA et al.,
Plaintiffs and Appellants, E074565
v. (Super.Ct.No. CIVDS1905188)
CALIFORNIA DEPARTMENT OF OPINION
TRANSPORTATION,
Defendant and Respondent.
APPEAL from the Superior Court of San Bernardino County. John M. Tomberlin,
Judge. Affirmed.
John A. Shepardson for Plaintiffs and Appellants.
Erin E. Holbrook, Chief Counsel, Jerald M. Montoya, Deputy Chief Counsel, and
Desiri Schele for Defendant and Respondent.
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Plaintiffs and appellants Raul Silva, Fernando Gandara, and David Buzon appeal
from a judgment dismissing their employment discrimination lawsuit against defendant
and respondent California Department of Transportation (Caltrans). Appellants argue the
trial judge erred by sustaining Caltrans’s demurrer on the ground their individual
discrimination claims are improperly joined under Code of Civil Procedure section 378.
According to appellants, permissive joinder is proper because their claims involve similar
conduct by Caltrans employees. We disagree. As their own allegations demonstrate,
appellants’ claims arise out of separate and distinct incidents of harassment and
discrimination. We therefore conclude the judge properly sustained the demurrer and
affirm.
I
FACTS
Appellants were Caltrans employees at the time of the alleged incidents of
harassment and discrimination. On April 9, 2019, appellants filed a complaint for
damages alleging the following facts. (See Department of Corporations v. Superior Court
(2007) 153 Cal.App.4th 916, 922, fn. 2 [when reviewing ruling on a demurrer we assume
the truth of the complaint’s allegations].)
A. Silva’s Allegations
Silva was hired as a maintenance worker in 2011. In August 2017, while he was
on temporary assignment in the Right-of-Way Division, he applied for a permanent
associate agent position within the division. He interviewed for the position with the
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division’s deputy director for District 8, Rebecca Guirado, then on October 17, 2017,
Guirado told Silva that despite her having vouched for him, the company decided to hire
someone else. Later that day, Silva filed an Equal Employment Opportunity (EEO)
complaint alleging he had been passed over for the position based on discriminatory
reasons. Shortly after he filed the complaint, Guirado retaliated against him by rescinding
his training for the associate agent position (despite having personally approved the
training two months earlier). On October 19, 2017, he reported Guirado’s retaliatory
conduct to HR.
Later on (the complaint doesn’t allege when), Guirado denied Silva two additional
promotions and an opportunity to interview for an open position, and she had two other
Caltrans employees spy on him. The EEO officer assigned to his complaint ignored his
allegations of discrimination, and on June 5, 2018 he went on medical leave. Silva
alleged he had “been harassed and discriminated against because of his gender.”
B. Gandara’s Allegations
Gandara alleged that his coworker Susan Esparza badgered him about retiring,
continually asking him when he was going to leave Caltrans. On an undisclosed date,
Esparza showed Gandara how much money he could make if he retired. At some point,
he and Esparza had a disagreement and afterward Guirado retaliated against him by
having Esparza “personally escort[]” him up to her office, “treating him like an untrusty
second-class worker.” Gandara filed a complaint with the Health and Safety Office
alleging workplace violence and, on June 11, 2018 received a letter sustaining his
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complaint. However, after that, an investigator at the Health and Safety Office called to
tell him complaining was a “waste of time” because her office “can’t [punish] the
violators.” Gandara then filed an EEO complaint and sent letters to various executive-
level Caltrans employees to inform them he had been the victim of age discrimination.
C. Buzon’s Allegations
Buzon worked as a supervisor in the Right-of-Way Division. In 2016, he became
overwhelmed with work after one of his coworkers retired and Guirado failed to give him
sufficient support. In November 2017, Guirado told Buzon she noticed his speech was
slurred, his attention was impaired, and his job performance was declining. She told
Buzon, “I want to fire you, but don’t know how.” Instead, she instituted weekly progress
meetings with Buzon, and this served only to exacerbate his stress about being
overwhelmed.
In October 2018, Buzon was diagnosed with “conversion disorder,” the symptoms
of which are incoherent speech and difficulty with writing and recall. He went on medical
leave, and the following month Guirado pressured him to retire. He told Guirado he had
decided to retire in February 2019, but he later changed his mind for financial reasons.
He alleged he had been the victim of harassment and discrimination based on disability.
He also claimed he’d been the victim of gender discrimination but made no allegations in
support of that claim.
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D. Demurrer and Motion for New Trial
During conferences on September 5 and 9, 2019, Caltrans informed appellants of
its view that they were improperly joined, and it subsequently sent them correspondence
reiterating this position. On September 11, appellants personally served Caltrans with the
complaint.
On September 24, Caltrans demurred to the complaint on multiple grounds,
including that Silva, Gandara, and Buzon were improperly joined under Code of Civil
Procedure section 378. (Unlabeled statutory citations refer to this code.) The hearing took
place on November 13 before San Bernardino County Superior Court Judge John
Tomberlin. Though appellants did not include the transcript of the hearing in the
appellate record, the minute order reflects the judge concluded appellants were
improperly joined and sustained the demurrer without leave to amend.
On November 19, appellants filed a motion for new trial that cited two cases they
hadn’t cited in their opposition to the demurrer and which, according to them,
demonstrated they were not improperly joined. On January 13, 2020, the judge denied the
motion, finding the cases inapposite, and on February 11 he entered judgment dismissing
the lawsuit.
Appellants filed a timely notice of appeal.
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II
ANALYSIS
Appellants argue the judge erred by concluding their claims are misjoined, and as
a result, his orders sustaining the demurrer and denying their motion for new trial must be
reversed.
We independently review a ruling sustaining a demurrer without leave to amend,
meaning “we exercise our independent judgment about whether the complaint alleges
facts sufficient to state a cause of action under any possible legal theory.” (Moe v.
Anderson (2012) 207 Cal.App.4th 826, 830 (Moe).) “We treat the demurrer as admitting
all material facts properly pleaded, but not contentions, deductions or conclusions of fact
or law. . . [And] we give the complaint a reasonable interpretation, reading it as a whole
and its parts in their context.” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318 [cleaned up].)
Finally, we will affirm the ruling “‘if any one of the several grounds of demurrer is well
taken.’” (Moe, at p. 831.)
Section 378 allows multiple parties to “join in one action as plaintiffs” if “[t]hey
assert any right to relief jointly, severally, or in the alternative, in respect of or arising out
of the same transaction, occurrence, or series of transactions or occurrences and if any
question of law or fact common to all these persons will arise in the action.” (Italics
added.) The purpose of permissive joinder is to “simplify the pleadings and conduct of
actions” and, in general, to promote efficient and expedient resolution of disputes. (Kraft
v. Smith (1944) 24 Cal.2d 124, 129.)
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Appellants claim they are properly joined under section 378 because they are all
suing the same employer, the conduct giving rise to their claims occurred in the same
building, and they were each “witnesses to the wrongful conduct perpetrated on each of
them.” In short, they argue permissive joinder applies because their “causes of action
arose from similar conduct” on Caltrans’s part. We disagree.
As an initial matter, there are no allegations in the complaint supporting the claim
that appellants witnessed each other’s harassment or discrimination. But in any event, the
joinder standard is narrower than appellants say. Section 378 does not impose a “similar”
conduct standard; by its terms, it imposes a “same” occurrence standard. In other words,
this means it’s not the perpetrator or location that must be common to each plaintiff, but
rather the incident giving rise to the injury. (See, e.g., Moe, supra, 207 Cal.App.4th at
pp. 831, 834 [plaintiffs alleging the same physician had sexually assaulted them on
separate occasions were improperly joined regardless of fact the assaults occurred in the
same office].)
For example, courts have found a right to relief arising out of the same occurrence
or series of occurrences where: two people sued for personal injuries they suffered in the
“same accident” (Emery v. Pacific Employers Ins. Co. (1937) 8 Cal.2d 663, 666); two
people the defendants arrested at “same time and place” sued for false imprisonment
(Peters v. Bigelow (1934) 137 Cal.App. 135, 140); multiple taxpayers sued to challenge
the validity of the same property tax “upon the same [legal] ground” (De Mille v. County
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of Los Angeles County (1938) 25 Cal.App.2d 506, 508); and multiple property owners
brought an action for civil conspiracy and fraud against a subdivider who cheated them
using a “common plan” (Adams v. Albany (1954) 124 Cal.App.2d 639, 641).
Here, in contrast, the alleged harassing and discriminatory incidents do not
constitute a single occurrence and nothing in the complaint indicates the incidents were
related so as to constitute a single series of occurrences or a common plan. According to
the complaint’s allegations, appellants’ injuries arise from different factual circumstances
and involve different protected categories (i.e., gender, age, and disability). Silva claims
Guirado subjected him to gender discrimination in the fall of 2017 by, among other
things, passing him over for a permanent position. Gandara claims Esparza harassed him
on the basis of his age by continually pressuring him to retire. Though the complaint does
not allege when this harassment occurred, the conduct is separate and distinct from
Silva’s experiences with Guirado. And finally, Buzon claims that in the fall of 2018
Guirado subjected him to harassment and discrimination based upon his medically
diagnosed disorder. The fact these claims share a common defendant is insufficient to
demonstrate the community of interest necessary to allow permissive joinder under
section 378. (E.g., Coleman v. Twin Coast Newspaper, Inc. (1959) 175 Cal.App.2d 650;
Moe, supra, 207 Cal.App.4th at p. 831.)
We are unpersuaded by appellants’ attempt to compare their claims to the
negligent supervision claims in Moe. In that case, two plaintiffs who had been patients of
the same physician brought a single lawsuit in which they asserted claims against the
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physician for sexual assault and against his employers for negligent supervision. (Moe,
supra, 207 Cal.App.4th at pp. 828-829.) As we noted above, the appellate court
concluded the claims against the physician were improperly joined because the assaults
were distinct incidents that occurred on separate occasions. The fact the assaults
constituted conduct by the same person that was “similar” in nature was insufficient to
create a community of interest between the plaintiffs. (Id. at p. 830.) The analysis came
out differently for the negligent supervision claims, however, because those claims arose
from a single “related series of transactions”—the employers’ conduct in hiring and
supervising the physician. (Id. at pp. 833-835.)
But here, appellants’ harassment and discrimination claims are more like the
assault than the negligent supervision claims. This is because proving appellants’
harassment and discrimination cases and the plaintiffs’ assault cases requires marshalling
different evidence about different incidents, whereas proving each plaintiff’s negligent
supervision claims depends on the exact same evidence.
We conclude the judge correctly determined appellants were improperly joined
under section 378 and, as a result, properly sustained the demurrer without leave to
amend and denied the motion for new trial.
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III
DISPOSITION
We affirm the judgment. Respondents shall recover costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
SLOUGH
J.
We concur:
RAMIREZ
P. J.
FIELDS
J.
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