Sermeno v. Law Offices of Ramin R. Younessi CA2/8 ( 2024 )

Filed 5/31/24 Sermeno v. Law Offices of Ramin R. Younessi CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
LAURA SERMENO, B327543
Plaintiff and Appellant, Los Angeles County
Super. Ct. No. 20STCV40604
v.
LAW OFFICES OF RAMIN R.
YOUNESSI,
Defendant and Respondent.
APPEAL from an order of the Superior Court of Los
Angeles County. Gail Killefer, Judge. Reversed and remanded
with directions.
Iarusso Legal, Michelle Iarusso; Azizian Law and
Benjamin A. Azizian for Plaintiff and Appellant.
Law Offices of Ramin R. Younessi, Ramin R. Younessi and
Heather N. Phillips for Defendant and Respondent.
_____________________________
SUMMARY
Plaintiff filed a complaint against defendant, her former
employer, with the Department of Fair Employment and
Housing, now the Civil Rights Department (the Department), and
requested an immediate right-to-sue letter. That same day, the
Department issued plaintiff a right-to-sue letter and closed the
case. Plaintiff then filed a timely lawsuit, within one year of the
date of the right-to-sue letter, alleging sex discrimination and
harassment, retaliation and wrongful termination in violation of
public policy.
The trial court sustained defendant’s demurrer to the
operative fourth amended complaint without leave to amend.
The court concluded the complaint failed to show plaintiff served
defendant with the right-to-sue letter and the complaint she had
filed with the Department, and therefore she could not maintain
her four causes of action for violation of the California Fair
Employment and Housing Act (FEHA; Gov. Code, § 12900 et
seq.). (Further statutory citations are to the Government Code.)
The trial court also found plaintiff did not state sufficient claims
for sex discrimination in violation of the California Constitution
or for wrongful termination in violation of public policy.
We conclude, consonant with established precedent, that
there is no jurisdictional hurdle requiring an employee who has
received an immediate right-to-sue letter to serve the
administrative complaint on the employer. (Wasti v. Superior
Court (2006) 140 Cal.App.4th 667, 670 (Wasti); see also § 12962.)
We further conclude that defendant’s demurrer to plaintiff’s
causes of action for sex discrimination in violation of the
California Constitution and wrongful termination in violation of
public policy should also have been overruled. In addition, we
reject defendant’s contention that the conduct alleged in
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plaintiff’s FEHA claim for sexual harassment was not sufficiently
severe or pervasive to be actionable.
Accordingly, we reverse the trial court’s order and the
ensuing judgment dismissing the complaint.
FACTS
We recite the facts as alleged in the operative complaint.
Plaintiff Laura Sermeno worked for defendant Law Offices
of Ramin R. Younessi as a legal assistant from October 29, 2018,
until she was fired on December 4, 2018. An attorney at the firm
(Amir Pasha Vafaei, referred to in the complaint as Pasha),
“engaged in a pattern of harassment against her because of her
sex.” He would tell plaintiff “she was ‘looking good’ and ‘looking
sexy’ and make other unwanted comments and innuendo,
including uncomfortable staring at [her] when she walked past
his offices.” Plaintiff tried to avoid him, but there were “a
number of office wide activities and lunches” that both plaintiff
and Pasha attended, and at these events Pasha “would stare and
make comments” to plaintiff.
On or about November 21, 2018, plaintiff “spoke with her
supervisor Alex Rodriguez and Andrew Sotelo about Pasha’s
comment.” Plaintiff then attended an office dinner event where
she spoke with an attorney named Mae about Pasha’s comments;
Mae replied that Pasha “was harmless and that he probably
meant it genuinely.”
“At one point, as a group of attorneys had gathered and
began eating dinner, [plaintiff] approached a group of attorneys,
including Pasha, and asked about ordering and splitting food.”
Pasha began talking with plaintiff and offered her food. Plaintiff
told Pasha how his earlier remarks made her uncomfortable.
Pasha replied “by asking ‘How can you tell I’m flirting with you?’
[Plaintiff] told him he had a certain look on his face, and it was
obvious that he was ogling her. He laughed, agreed, told
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[plaintiff] ‘Wow I can’t believe you can tell; I didn’t know it was so
obvious.’ ”
Plaintiff mentioned Pasha’s girlfriend was present and
plaintiff would prefer if Pasha did not speak to plaintiff. Pasha
told plaintiff that his girlfriend was only with him because of his
money; he said he made $35,000 a month from other
(nonattorney) businesses, and did not make much being an
attorney.
Pasha offered plaintiff money, “telling her to name her
price monthly, and alluded that he could be a sugar daddy of
sorts. Pasha said, ‘I know girls aren’t into me for my looks, and
I’m willing to pay.” Plaintiff “made no comment to [Pasha] and
walked away to tell Alex Rodriguez about the event.”
Mr. Rodriguez later related the harassment to Sean
Younessi, Jen Flores and Ramin Younessi, all of whom had
supervisory duties over Pasha and plaintiff. Pasha was
terminated on the same day, apparently on November 26, 2018.
The complaint alleges defendant knew or should have
known of the harassment “[b]ecause of the open and notorious
nature” of the harassment.
“Pasha’s sexual comments and advances were made
regularly throughout [plaintiff’s] working week. As such, Pasha
created a hostile work environment that prevented [plaintiff]
from performing her job duties and/or made the discharge of her
duties more stressful because of her fear and discomfort.”
Plaintiff was terminated on December 4, 2018, “under the
pretext that she was ‘not a good fit,’ ” although she “had had
nothing but excellent feedback during her employment.”
On October 19, 2019, plaintiff filed her complaint with the
Department and obtained a right-to-sue letter.
In October 2020, she filed a timely complaint in superior
court alleging six causes of action. Four were for FEHA
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violations: sex discrimination; harassment based on sex;
retaliation; and failure to prevent discrimination, harassment
and retaliation. Plaintiff also alleged claims for sex
discrimination in violation of the California Constitution (art. I,
§ 8) and for wrongful termination in violation of public policy.
The record contains three successive demurrers, to the
second, third, and operative fourth amended complaints, and the
court’s ruling now under review states the court also sustained a
demurrer to plaintiff’s original complaint.
Plaintiff did not properly allege exhaustion of her
administrative remedies until her third amended complaint;
before then, she failed to allege facts showing she filed her
administrative complaint within one year of the date the alleged
unlawful action occurred. She complied in her third amended
complaint, and when defendant demurred to that complaint, the
trial court overruled the demurrers to the three FEHA causes of
action for sex discrimination, retaliation and failure to prevent
retaliation. The court sustained defendant’s demurrer to
plaintiff’s FEHA cause of action for sexual harassment, finding
plaintiff failed to allege sufficient facts to show a pervasive or
severe pattern of harassing conduct. The court also sustained
demurrers to the other two causes of action, ruling plaintiff failed
to allege sufficient facts to show termination on the basis of sex in
her constitutional violation claim, and her wrongful termination
allegations were conclusory. The court again granted leave to
amend.
Plaintiff filed the operative fourth amended complaint and
defendant again demurred. Among other contentions, defendant
argued for the first time that section 12962 required plaintiff to
serve her administrative complaint on defendant within 60 days
of filing it with the Department. Defendant asserted plaintiff
failed to exhaust administrative remedies because she did not
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plead and could not prove she served defendant with the
administrative complaint.
Plaintiff’s opposition argued she properly exhausted her
administrative remedies, but she did not respond to defendant’s
claim that section 12962 required her to serve her administrative
complaint on defendant, despite the court’s instruction to do so.
This time the court sustained the demurrer to the entire
complaint without leave to amend. The court found plaintiff
“continues to fail to show a sufficient service and adequate notice
of the [Department’s] Right to Sue Letter as necessary to sustain
a claim for violations of FEHA.” As for the other two causes of
action, the court sustained the demurrers on the same bases as
before: on the constitutional claim, plaintiff failed to show “how
she faced termination on the basis of her sex,” and “again only
makes conclusory allegations regarding how her termination was
wrongful and violated public policy.”
The trial court entered judgment of dismissal on
December 20, 2022; notice of entry of judgment was served on
January 3, 2023; and plaintiff filed a notice of appeal on March 1,
2023.
DISCUSSION
1. The Standard of Review
A demurrer tests the legal sufficiency of the complaint. We
review the complaint de novo to determine whether it alleges
facts sufficient to state a cause of action. For purposes of review,
we accept as true all material facts alleged in the complaint, but
not contentions, deductions or conclusions of fact or law. We also
consider matters that may be judicially noticed. (Blank v.
Kirwan (1985) 39 Cal.3d 311, 318.)
2. FEHA Claims: The Service Issue
The trial court erred by adopting defendant’s argument
that section 12962 and a related regulation required plaintiff to
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serve her administrative complaint on defendant within 60 days
as a jurisdictional prerequisite to a civil action. Neither party
alerted the trial court to the pertinent precedent, established in
2006 in Wasti, supra, 140 Cal.App.4th 667.
Section 12962 requires the Department to serve “any
verified complaint filed for investigation” upon the employer or
other person alleged to have committed the unlawful practice.
(Id., subd. (a), italics added.) If the aggrieved person retains
private counsel, the private counsel, not the Department, must
serve the complaint. (Id., subd. (b).) Service is to be made “at the
time of initial contact” with the employer, “or within 60 days,
whichever first occurs.” (Id., subd. (c).)
In Wasti, the court rejected an employer’s claim that an
employee who timely filed an administrative complaint, and
immediately received a right-to-sue letter, must plead and prove
compliance with section 12962 by serving the administrative
complaint on the employer within 60 days. (Wasti, supra,
140 Cal.App.4th at pp. 671-672.) Wasti observed that “[n]o
appellate court has imposed this requirement as a jurisdictional
prerequisite,” and “[w]e decline to be the first to do so.” (Id. at p.
672.)
Wasti stated that the service requirements in section 12962
apply to investigative complaints, and explained the origin of the
current requirements. (Wasti, supra, 140 Cal.App.4th at pp. 670,
672-673.) As originally drafted, section 12962 required the
Department to serve “ ‘any verified complaint filed,’ ” but in 2003,
the section “was amended to ease the Department’s burdens.”
(Wasti, at p. 672.) The amendments “added the limiting phase
‘for investigation’ so that the department was only required to
serve ‘any verified complaint filed for investigation . . . .’ ” (Ibid.,
quoting § 12962, subd. (a).) The amendments also required
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employees who were represented by private counsel to serve the
employer with the administrative complaint within 60 days; the
Department “still had to serve the complaint in administrative
investigations involving unrepresented employees.” (Wasti, at
p. 672, citing § 12962, subds. (b), (c).)
Wasti pointed out that the Department has the power but
is not required to perform investigatory, conciliatory, and
prosecutorial functions, and that “[m]any individuals instead
choose to prosecute their discrimination claims in court, and the
Department serves only as a way station.” (Wasti, supra,
140 Cal.App.4th at p. 673.) The court stated: “Construed in the
context of the statute as a whole, the 2003 amendments were
intended to eliminate the service requirement where an employee
opts to seek a right-to-sue letter.” (Ibid.) The court questioned
how service of a form document, which “on its face, asks the
agency not to act,” could possibly be of any “jurisdictional value,”
and concluded, “[w]e will not distort the ordinary, everyday
meaning of the statute to create an absurdity.” (Ibid.) And:
“Adding an additional jurisdictional service requirement of a
defunct administrative complaint would impose a trap upon the
unwary.” (Ibid.)
Wasti also articulated a “second and separate reason” to
overrule the employer’s demurrer in that case. (Wasti, supra,
140 Cal.App.4th at p. 674.) There, as here, the employee was
unrepresented when she filled out her form administrative
complaint, so “service remained the Department’s responsibility.”
( Ibid., citing § 12962, subds. (a) & (b).) “To our knowledge, no
reported California court has caused an employee to forfeit his or
her FEHA claim for the Department’s purported failure to comply
with its ministerial duties.” (Wasti, at p. 674.)
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Defendant contends that Wasti’s interpretation of
section 12962 “is in conflict with the purpose of administrative
exhaustion, the California Code of Regulations, the legislative
summary of FEHA, and the express instruction to [plaintiff] from
[the Department].” To this we can only say that if there were a
conflict between a regulation and the appellate court’s
construction of the statute to which the regulation refers, it is the
regulation that must yield. But we see no conflict with the
regulation defendant cites, which merely states that the
Department “shall not serve complaints issued in response to
requests for an immediate right-to-sue notice, regardless of
whether or not a complainant is represented by counsel.” (Cal.
Code Regs., tit. 2, § 10021(g).)
Defendant points out that the Department advised plaintiff
in an October 19, 2019 “Notice to Complainant” that the
Department would not serve the complaint and that “[y]ou must
serve the complaint separately, to all named respondents. If you
do not have an attorney, you must serve the complaint yourself.”
That is indeed what the Department said, but there is no
statutory authority to support those instructions, and Wasti
expressly construes section 12962 as not imposing a jurisdictional
service requirement. (Wasti, supra, 140 Cal.App.4th at p. 673;
see also Monaghan v. El Dorado County Water Agency (E.D.Cal.,
Feb. 7, 2012, No. 2:10-cv-00434-MCE-GGH) 2012 U.S.Dist. Lexis
14900, pp. *15-*17 [same, citing Wasti].) Nor does defendant
present any coherent argument to support its claim of a conflict
with “the purpose of administrative exhaustion” or “the
legislative summary of FEHA,” or any other reason to justify
disagreement with Wasti’s sound analysis.
Accordingly, the trial court erred in sustaining defendant’s
demurrer to the FEHA claims on this ground.
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3. FEHA Claims: The “Severe or Pervasive” Issue
Defendant contends that if we find, as we have, that
plaintiff exhausted her administrative remedies, the demurrer to
her third cause of action for sexual harassment was nevertheless
properly sustained because the conduct alleged was not “severe or
pervasive,” as required. However, none of the cases defendant
cites to support its analysis was decided in the context of a
demurrer; they involved summary judgment or jury verdicts.
Moreover, none of them was decided after the Legislature
clarified “its intent with regard to application of the laws about
harassment.” (§ 12923, eff. Jan. 1, 2019; see also Beltran v. Hard
Rock Hotel Licensing, Inc. (2023) 97 Cal.App.5th 865, 878-879
(Beltran) [discussing § 12923’s clarification of existing law “in
numerous respects”].)
Section 12923 provides, among other points, that
“harassment creates a hostile, offensive, oppressive, or
intimidating work environment . . . when the harassing conduct
sufficiently offends, humiliates, distresses, or intrudes upon its
victim, so as to disrupt the victim’s emotional tranquility in the
workplace, affect the victim’s ability to perform the job as usual,
or otherwise interfere with and undermine the victim’s personal
sense of well-being.” (Id., subd. (a).) “ ‘It suffices to prove that a
reasonable person subjected to the discriminatory conduct would
find . . . that the harassment so altered working conditions as to
make it more difficult to do the job.’ ” (Ibid.) “A single incident of
harassing conduct is sufficient to create a triable issue regarding
the existence of a hostile work environment if the harassing
conduct has unreasonably interfered with the plaintiff’s work
performance or created an intimidating, hostile, or offensive
working environment.” (§ 12923, subd. (b).) “Harassment cases
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are rarely appropriate for disposition on summary judgment.”
(Id., subd. (e).)
Here, when the trial court sustained the previous demurrer
to plaintiff’s sexual harassment cause of action, it referred only to
the “sugar daddy” incident, and stated: “While Plaintiff may
have alleged an individual instance of harassing conduct,
Plaintiff has again failed to allege sufficient facts to show a
pervasive or severe pattern of harassing conduct.” The court
ignored plaintiff’s allegations that Pasha’s unwanted comments
and uncomfortable staring when plaintiff walked past his office
began in October 2018; his “comments and advances were made
regularly throughout [plaintiff’s] working week”; and “made the
discharge of [plaintiff’s] duties more stressful because of her fear
and discomfort.” The ruling likewise did not take into account
the harassment standards as clarified in section 12923 (which the
parties did not bring to the trial court’s attention). (Cf. Beltran,
supra, 97 Cal.App.5th at p. 868 [“In light of [section 12923], we
conclude that because the trial court used outdated standards to
conclude no triable issue of material fact existed, summary
adjudication should not have been granted as to the hostile work
environment cause of action.”].)
Defendant contends, citing no authority, that the short
time span during which plaintiff and Pasha were both employed
by defendant made it “nearly impossible for any conduct to have
become ‘pervasive,’ ” and asserts that the “sugar daddy” incident
“amounts, at most, to an isolated instance of crude and
inappropriate verbal comment” that is not actionable. Those
claims and characterizations of the facts alleged cannot be
decided on demurrer, and fail to address the harassment
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standards in section 12923. Other arguments similarly lack
merit.1
4. Wrongful Termination in Violation of Public Policy
Plaintiff’s cause of action for wrongful termination in
violation of public policy alleged that Pasha harassed plaintiff
based on her sex, and alleged examples of the sexual harassment.
She alleged the harassment created “an intimidating, hostile and
offensive work environment in violation of public policy,” that
defendant “allowed and fostered an environment in which
discrimination against women flourished such that [plaintiff] was
subject to an adverse employment action, in that she was given
less desirable assignments and ultimately fired.” Plaintiff
alleged that “[s]uch discrimination runs afoul of California’s
public policy against discrimination embodied in the[FEHA].”
1 Here and elsewhere in its brief, defendant contends that
many of plaintiff’s allegations were not raised in or were
inconsistent with her administrative complaint, and therefore are
barred by the exhaustion requirement. This argument is based
on defendant’s assertion that plaintiff’s administrative complaint
alleged only sexual harassment and retaliation, not sex
discrimination. As we point out post, and as is well recognized,
sexual harassment is a form of sex discrimination in employment,
and the administrative complaint alleged sexual harassment.
Moreover, we have agreed with Wasti that plaintiff was not
required to serve her “moribund administrative complaint”
(140 Cal.App.4th at p. 670) on defendant in the first place. And
in any event, the exhaustion test is whether court claims are like,
and reasonably related to, the claims in the administrative filing,
or likely to be uncovered in an investigation by the Department.
(Guzman v. NBA Automotive, Inc. (2021) 68 Cal.App.5th 1109,
1117.) They are.
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In sustaining defendant’s demurrer, the trial court stated
that plaintiff “concedes the derivative nature” of the wrongful
termination cause of action. Plaintiff did so, the trial court said,
by stating in her opposition that California’s public policy was
“embodied by the FEHA” and arguing it was sufficient to allege
“that she was terminated for making the complaints about
harassment and discrimination that are unlawful under the
FEHA.” The trial court concluded plaintiff “fails to allege
sufficient facts and again only makes conclusory allegations
regarding how her termination was wrongful and violated
California public policy.” On appeal, defendant similarly states
only that the cause of action for wrongful termination in violation
of public policy “is clearly derivative of the FEHA and
Constitutional causes of action and must fall with them.”
Defendant’s view is mistaken, and the trial court erred in
concluding plaintiff’s allegations were insufficient. The law on
this point in clear.
“We conclude that the FEHA does not supplant other state
laws, including claims under the common law, relating to
employment discrimination; that an employee need not exhaust
the administrative process under the act before resort to judicial
relief for nonstatutory causes of action; and that sex
discrimination in employment may support a claim of tortious
discharge in contravention of public policy.” (Rojo v. Kliger
(1990) 52 Cal.3d 65, 70-71 (Rojo); see id. at p. 90 [“The public
policy against sex discrimination and sexual harassment in
employment, moreover, is plainly one that ‘inures to the benefit
of the public at large rather than to a particular employer or
employee.’ [Citation.] No extensive discussion is needed to
establish the fundamental public interest in a workplace free
from the pernicious influence of sexism. So long as it exists, we
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are all demeaned.”]; see also Stevenson v. Superior Court (1997)
16 Cal.4th 880, 890 [describing its conclusion in Rojo that “the
plaintiffs had pleaded a viable tortious discharge claim because
sexual harassment in the workplace violates fundamental public
policy”]; Phillips v. St. Mary Regional Medical Center (2002)
96 Cal.App.4th 218, 227 (Phillips) [“FEHA’s provisions
prohibiting discrimination may provide the policy basis for a
claim for wrongful discharge in violation of public policy”]; see id.
at p. 223 [Cal. Const., art. I, § 8 is an “alternative source[] of
fundamental and well-established public policy sufficient to
support plaintiff’s common law cause of action for wrongful
termination”].)
5. The Claim for Sex Discrimination Under the
California Constitution
The California Constitution provides that “[a] person may
not be disqualified from entering or pursuing a business,
profession, vocation, or employment because of sex, race, creed,
color, or national or ethnic origin.” (Cal. Const., art. I, § 8
(section 8).) In actions such as wrongful termination in violation
of public policy, “a breach of duty or violation of public policy may
be established by demonstrating a violation of a constitutional
provision, and damages properly may be awarded to remedy the
tort.” (Katzberg v. Regents of University of California (2002)
29 Cal.4th 300, 303, fn. 1.)
Plaintiff’s second cause of action alleged discrimination
based on sex in violation of section 8, founded on the sexual
harassment allegations previously described. Plaintiff alleged
that “[f]urther, when [she] was ultimately terminated from her
position, it was again based on her sex, as the ultimate reason for
her termination was the harassment she suffered because of her
sex.”
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The trial court cited plaintiff’s allegation that she “was
fired in retaliation for making complaints of sexual harassment,”
and then concluded plaintiff failed to plead sufficient facts to
show a violation of section 8, “as Plaintiff again fails to show how
she faced termination on the basis of her sex.” This view is
mistaken.
In Phillips, supra, 96 Cal.App.4th 218, the plaintiff alleged
the defendant terminated him in retaliation for filing a complaint
with the Department for race and sex discrimination. (Id. at
p. 224.) The court rejected the defendant’s argument that
section 8 “does not support wrongful termination claims based on
an employer’s retaliatory conduct” (Phillips, at p. 230), stating
that “while this form of discrimination is not enumerated
specifically in Section 8, employment discrimination often
manifests itself in retaliatory conduct” (id. at p. 232). Phillips
held “the trial court erred in sustaining defendant’s demurrer as
to plaintiff’s wrongful termination claim based on defendant’s
retaliation in violation of Section 8’s policy against race and sex
discrimination.” (Id. at p. 233.)
On appeal, defendant makes a single, brief argument,
citing no authorities. Defendant contends plaintiff did not state a
claim for discrimination based on sex, either in violation of FEHA
or section 8, because plaintiff “invokes the harassment provisions
of FEHA rather than the discrimination provisions,” and treats
the two “as though they are interchangeable.” As we have
already seen, defendant’s view is mistaken. (See, e.g., Rojo,
supra, 52 Cal.3d at p. 73, fn. 4 [“Although the FEHA cites
harassment as an unlawful employment practice separate from
discrimination [citation], the regulations and [administrative]
decisions recognize that sexual harassment is a form of sex
discrimination in employment.”].)
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DISPOSITION
The judgment of dismissal is reversed and the cause is
remanded to the trial court with directions to vacate its order
sustaining defendant’s demurrer and enter a new order
overruling the demurrer in its entirety. Plaintiff to recover costs
on appeal.
GRIMES, J.
WE CONCUR:
STRATTON, P. J.
KIM, J.*
* Associate Justice of the Court of Appeal, Second District,
Division Five, appointed by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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