Opinion
D070504
07-31-2017
JASMINE CIRUJEDA MASTACHE, Plaintiff and Appellant, v. SAN DIEGO UNIFIED SCHOOL DISTRICT et al., Defendants and Respondents.
Jasmine Cirujeda Mastache, in pro. per., for Plaintiff and Appellant. Paul, Plevin, Sullivan & Connaughton and Michael C. Sullivan, Danielle M. Blackhall, for Defendant and Respondent San Diego Unified School District. Davis Wang and Shirley C. Wang, Courtney J. Rogerson, for Defendant and Respondent California School Employees Association.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 37-2015-00016054-CU-WT-CTL) APPEAL from a judgment of the Superior Court of San Diego County, Joel M. Pressman, Judge. Affirmed. Jasmine Cirujeda Mastache, in pro. per., for Plaintiff and Appellant. Paul, Plevin, Sullivan & Connaughton and Michael C. Sullivan, Danielle M. Blackhall, for Defendant and Respondent San Diego Unified School District. Davis Wang and Shirley C. Wang, Courtney J. Rogerson, for Defendant and Respondent California School Employees Association.
Plaintiff and appellant Jasmine Cirujeda Mastache, a self-represented litigant, appeals from a judgment of dismissal entered after the trial court sustained without leave to amend the demurrer of her former employer, defendant and respondent San Diego Unified School District (District), to her third amended complaint. Plaintiff sued District following termination of her employment, alleging in her operative pleading that District discriminated against her on the basis of her age and national origin, subjected her to retaliation and harassment and failed to prevent discrimination and harassment, wrongfully terminated her without warning, then ignored her attempts to undergo an internal grievance process. The trial court ruled in part that plaintiff's entire action was barred on grounds she failed to comply with the claim filing requirements of the Government Tort Claims Act (Gov. Code, § 810 et seq., at times, the Act), her common law claims failed because District was absolutely immune from liability, and her remaining claims failed to state facts sufficient to state a cause of action. On appeal, plaintiff challenges these rulings, contending the court failed to make requested findings, the court was prejudiced, and opposing counsel mislead the court and misrepresented the law. Though we conclude not all of plaintiff's causes of action are barred for failure to meet the Act's claim filing requirements, we nevertheless affirm the judgment.
Statutory references are to the Government Code unless otherwise specified.
FACTUAL AND PROCEDURAL BACKGROUND
In setting out the background, we accept as true the properly pleaded and material allegations of plaintiff's third amended complaint, reasonable inferences that may be drawn from those allegations, and facts that may properly be judicially noticed. (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 866; City of Stockton v. Superior Court (2007) 42 Cal.4th 730, 734, fn. 2; In re Insurance Installment Fee Cases (2012) 211 Cal.App.4th 1395, 1402.) We do not accept contentions, deductions, or conclusions of fact or law. (In re Insurance Installment Fee Cases, at p. 1402.)
District hired plaintiff in November 2013 as a "probationary permanent" employee in the position of general secretary II. She started work after the 2013-2014 school year. On August 18, 2014, when plaintiff returned to her workplace for the next school year, she was given a negative performance evaluation and terminated. That same day, plaintiff sent a "rebuttal" concerning her evaluation to a District human resources officer, who told her it would be placed in plaintiff's personnel file. She e-mailed her union representative the next day and asked the representative to review her rebuttal letter. Several days later, plaintiff filed a grievance with District Superintendent Cindy Marten, but received no response.
On October 24, 2014, plaintiff sent a "Notice" to Marten and others asking for reinstatement of her position and stating it was her intent to sue a public entity. In December 2014 plaintiff filed with the Equal Employment Opportunity Commission (EEOC) a charge of discrimination on the basis of age and her Mexican national origin, and received a right to sue notice advising plaintiff her complaint was dual filed with the Department of Fair Employment and Housing (DFEH) and that she was allowed to file a civil action under the Fair Employment and Housing Act (FEHA). In January 2015 she filed a discrimination complaint with the DFEH against her union, the California School Employees Association (CSEA). The DFEH closed her complaint and at her request issued an immediate right to sue notice. Plaintiff also wrote to the area superintendent seeking an administrative evidentiary hearing. In February 2015 District informed her that probationary classified employees were not entitled to an administrative hearing on whether cause existed for termination of their employment.
On March 6, 2015, plaintiff filed a claim with District's risk management department, attaching an 8-page single-spaced document purporting to recount the terms and conditions of her employment and claiming Principal Elizabeth Larkin violated her employment contract. On March 13, 2015, District informed plaintiff that it did not take action on her claim as it was untimely filed. District later denied plaintiff's request to present a late claim.
In May 2015, plaintiff filed a complaint against District in San Diego Superior Court for wrongful termination (on grounds of breach of contract and violation of public policy), defamation, and intentional and negligent infliction of emotional distress. She alleged in part that District breached an employment contract and violated public policy by terminating her in retaliation for her reports of an unsafe work environment and unsafe conditions at the school. Her complaint did not refer to her August 18, 2014 rebuttal or her submissions to the EEOC or DFEH. District demurred in part on grounds plaintiff failed to allege compliance with the Act, and all but her third cause of action for defamation were common law claims barred by the Act. The trial court sustained the demurrer and gave plaintiff 10 days leave to amend.
Plaintiff thereafter filed a first amended complaint against both District and the CSEA alleging no separate causes of action. She alleged she tried to resolve her matter through the internal grievance process without success; that her claims constituted her August 18, 2014 rebuttal, then her August 22, 2014 grievance with Superintendent Marten, then her October 2014 letter to Superintendent Marten requesting reinstatement and permission to sue. She alleged she filed her EEOC discrimination charge in December 2014.
The District again demurred. Plaintiff thereafter sought ex parte to file a second amended complaint purporting to add Principal Larkin as a defendant, and alleging causes of action for discrimination (first cause of action), retaliation in violation of FEHA and public policy (second and third causes of action), harassment (fourth cause of action), failure to prevent discrimination and harassment (fifth cause of action), and wrongful termination in violation of FEHA and public policy (six, seventh and eighth causes of action). The court set the matter on the same day of the hearing on District's demurrer to the first amended complaint.
In April 2016, the court struck plaintiff's second amended complaint on grounds she did not properly seek leave of court to file it. It sustained District's demurrer to the first amended complaint on grounds the pleading was fatally uncertain, but to the extent it sought to allege common law claims, they were barred by the Act. It further ruled plaintiff was required to comply with the Act's claims presentation requirements, but she had not alleged such compliance. The court granted plaintiff leave to file a third amended complaint. As for plaintiff's claims against CSEA, the trial court granted CSEA's motion to strike without leave to amend and dismissed the case against it in its entirety.
Plaintiff filed her third amended complaint against District as well as CSEA and Principal Larkin, including the same eight causes of action from the stricken second amended complaint. As to each cause of action, plaintiff alleged she was entitled to recover damages from District, and that she suffered embarrassment and humiliation, as well as mental and emotional distress. District again demurred, arguing that plaintiff had untimely filed her government claim with District on March 6, 2015, seven months after her August 18, 2014 termination, and because each of her claims arose from her termination, her entire action was barred as a matter of law. District argued plaintiff's August 18, 2014 letter did not satisfy the Act's mandatory requirements. It further argued it was immune from plaintiff's common law third, seventh and eighth causes of action; plaintiff did not state viable causes of action for age or national origin discrimination having no allegations showing identifiable discriminatory conduct; plaintiff's FEHA retaliation claim failed as a matter of law because she did not allege she engaged in protected conduct; and plaintiff could not state a claim for harassment because she did not allege severe or pervasive conduct on District's part.
In opposition, plaintiff argued she had complied with the Act, referencing the "plenty of filings that I did starting August 18, 2014" that had been "rejected since the beginning . . . ." She argued that because she had complied with the claim presentation requirements, District was not immune, and District's counsel misrepresented themselves to the court about such immunity.
The trial court sustained District's demurrer without leave to amend. It ruled plaintiff had not complied with the Act's claim presentation requirements as she had not filed a claim within six months of her August 18, 2014 termination, and because her claims arose from her termination, her entire action was barred as a matter of law. It ruled plaintiff's August 18, 2014 letter did not satisfy the plain language of the Act's mandatory claim presentation requirement under section 910.4 that the claim be submitted " 'on the form provided by the California Victim Compensation and Government Claims Board . . . .' " The court further ruled plaintiff's claim was delivered to District's human resources officer, and not to District's " 'clerk, secretary or auditor' " as identified in its roster of public agencies filing. The court ruled plaintiff's third, seventh and eighth causes of action failed because District was absolutely immune from direct liability for common law claims, and plaintiff did not allege sufficient facts to support age and national origin discrimination so as to support her first, second and sixth causes of action for discrimination and retaliation. It denied leave to amend, and ordered the entire action dismissed with prejudice.
Plaintiff appealed from the ensuing judgment of dismissal.
DISCUSSION
I. Standard of Review
"On appeal from a judgment dismissing an action after sustaining a demurrer without leave to amend, . . . [w]e give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.] Further, we treat the demurrer as admitting all material facts properly pleaded, but do not assume the truth of contentions, deductions or conclusions of law." (City of Dinuba v. County of Tulare (2007) 41 Cal.4th 859, 865.) We consider matters that may be judicially noticed. (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126.) We review the complaint de novo and determine whether the pleading alleges facts sufficient to state a cause of action. (McCall v. PacifiCare of Cal., Inc. (2001) 25 Cal.4th 412, 415.) When a demurrer is sustained without leave to amend, "we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse." (City of Dinuba, at p. 865.) If the judgment is correct on any ground stated in the demurrer, we will affirm it regardless of the trial court's stated reasons; we review the ruling, not its rationale. (San Diego City Firefighters, Local 145, v. Board of Administration etc. (2012) 206 Cal.App.4th 594, 605; Haro v. City of Solana Beach (2011) 195 Cal.App.4th 542, 549.)
An appellate court will also accept as true facts appearing in exhibits attached to the complaint and give them precedence over inconsistent allegations in the complaint. (Building Permit Consultants, Inc. v. Mazur (2004) 122 Cal.App.4th 1400, 1409; see Barnett v. Fireman's Fund Ins. Co. (2001) 90 Cal.App.4th 500, 505.) Here, the record does not contain the exhibits attached to plaintiff's third amended complaint, though District asserts they were before the trial court (citing the exhibits appended to the stricken second amended complaint). Plaintiff has lodged some of the referenced documents in this court. We presume in favor of the judgment that the court had before it the exhibits referenced in the third amended complaint, and to the extent they are contained elsewhere in the record we take judicial notice of them where they contradict plaintiff's allegations or support the court's order sustaining District's demurrer.
II. Government Claims Act and Claim Presentation Requirements
"Under the Government Claims Act (Gov. Code, § 810 et seq.), there is no common law tort liability for public entities in California; instead, such liability must be based on statute." (Guzman v. County of Monterey (2009) 46 Cal.4th 887, 897, citing § 815, subd. (a) ["Except as otherwise provided by statute: [¶] A public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity . . . ."].) "The Legislative Committee Comment to section 815 states: 'This section abolishes all common law or judicially declared forms of liability for public entities, except for such liability as may be required by the state or federal constitution, e.g., inverse condemnation. . . ." [Citation.] Moreover, [California Supreme Court] decisions confirm that section 815 abolishes common law tort liability for public entities." (Miklosy v. Regents of University of California (2008) 44 Cal.4th 876 (Miklosy).)
The Act contains prerequisites to the filing of a lawsuit against a public entity. (J.J. v. County of San Diego (2014) 223 Cal.App.4th 1214, 1219.) A plaintiff must timely file a written claim before filing any "suit for money or damages . . . against a public entity . . . ." (Ibid.; § 945.4.) Failure to present a timely written claim to the relevant public entity "bars a plaintiff from filing a lawsuit against that entity." (City of Stockton v. Superior Court, supra, 42 Cal.4th at p. 738; J.J. v. County of San Diego, at p. 1219.) "Complaints that do not allege facts demonstrating either that a claim was timely presented or that compliance with the claims statute is excused are subject to a general demurrer for not stating facts sufficient to constitute a cause of action." (Shirk v. Vista Unified School Dist. (2007) 42 Cal.4th 201, 209, superseded by statute on other grounds as stated in A.M. v. Ventura Unified School Dist. (2016) 3 Cal.App.5th 1252, 1258; see also State of California v. Superior Court (Bodde) (2004) 32 Cal.4th 1234, 1239; Wood v. Riverside General Hospital (1994) 25 Cal.App.4th 1113, 1119.) The Act's purpose is " 'not to prevent surprise, but "to provide the public entity sufficient information to enable it to adequately investigate claims and to settle them, if appropriate, without the expense of litigation." ' " (DiCampli-Mintz v. County of Santa Clara (2012) 55 Cal.4th 983, 991; see J.J. v. County of San Diego, at p. 1219.) Given that purpose, " ' "[i]t is well-settled that claims statutes must be satisfied even in face of the public entity's actual knowledge of the circumstances surrounding the claim. Such knowledge—standing alone—constitutes neither substantial compliance nor basis for estoppel." ' " (J.J. v. County of San Diego, at p. 1219.)
Section 910 requires that the claim presented to the public entity include the name and post office address of the claimant; the post office address to which the person presenting the claim desires notices to be sent; the date, place and other circumstances of the occurrence or transaction which gave rise to the claim asserted; a general description of the indebtedness, obligation, injury, damage or loss incurred so far as it may be known at the time of presentation of the claim; and the name or names of the public employee or employees causing the injury, damage, or loss, if known. (§ 910, subds. (a)-(f).) The claim must be signed by the claimant or by some person on his or her behalf. (§ 910.2.) "[A] claim need not contain the detail and specificity required of a pleading"; however, it must " 'fairly describe what [the] entity is alleged to have done.' " (Stockett v. Association of California Water Agencies Joint Powers Ins. Auth. (2004) 34 Cal.4th 441, 446.)
Where a claimant attempts to comply with the government claim requirements but the claim is deficient in some way, the doctrine of substantial compliance may apply. Under that doctrine, "the court may conclude a claim is valid if it substantially complies with all of the statutory requirements for a valid claim even though it is technically deficient in one or more particulars." (Santee v. Santa Clara County Office of Education (1990) 220 Cal.App.3d 702, 713, citing City of San Jose v. Superior Court (1974) 12 Cal.3d 447, 445-447; see Hall v. City of Los Angeles (1941) 19 Cal.2d 198, 201; Connelly v. County of Fresno (2006) 146 Cal.App.4th 29, 38.) When a claim contains information necessary to permit the entity to investigate the facts and decide whether the case is one for settlement or litigation, it may be deemed sufficient. (See City of San Jose, at p. 455; Silva v. County of Fresno (1944) 63 Cal.App.2d 253, 257-258.) The question is whether there is "some compliance with all of the statutory requirements; and, if so, is this compliance sufficient to constitute substantial compliance?" (City of San Jose, at pp. 456-457; Westcon Construction Corp. v. County of Sacramento (2007) 152 Cal.App.4th 183, 200.) On the other hand, where the claim does not include each of the categories of information required by section 910, "there is an entire failure on the part of the plaintiff to comply with one of the mandates of the statute. Substantial compliance cannot be predicated on no compliance." (Hall v. City of Los Angeles, at p. 202; Loehr v. Ventura County Community College Dist. (1983) 147 Cal.App.3d 1071, 1083 [doctrine of substantial compliance will not cure "total omission of an essential element from the claim or remedy a plaintiff's failure to comply meaningfully with the statute"].)
If a "presented" claim does not substantially comply, it may nevertheless qualify as a " 'claim as presented' . . . ." (Alliance Financial v. City and County of San Francisco (1998) 64 Cal.App.4th 635, 643.) Such a claim is a claim "that is defective in that it fails to comply substantially with . . . sections 910 and 910.2, but nonetheless puts the public entity on notice that the claimant is attempting to file a valid claim and that litigation will result if it is not paid or otherwise resolved. A 'claim as presented' triggers a duty on the part of the governmental entity to notify the claimant of the defects or omissions in the claim. A failure to notify the claimant of the deficiencies in a 'claim as presented' waives any defense as to its sufficiency." (Ibid.; see Phillips v. Desert Hospital Dist. (1989) 49 Cal.3d 699, 708, fn. 7, 709 [a document constitutes a claim as presented "if it discloses the existence of a 'claim' which, if not satisfactorily resolved, will result in a lawsuit against the entity"]; Green v. State Center Community College Dist. (1995) 34 Cal.App.4th 1348, 1354.)
III. Plaintiff's Complaint Demonstrates She Made a "Claim as Presented" and Thus
District Waived Its Claim Sufficiency Defenses
In her third amended complaint, plaintiff does not squarely allege that she complied with the Act's claims presentation requirements. She alleges she "tried to solve the issue . . . with the interior grievance process" and points to her August 18, 2014 rebuttal to District's human resources officer, in which plaintiff challenged Principal Larkin's performance evaluation. She alleges she "gave plenty of opportunities to [District] to solve [her] claim" and "asked for a right to sue them" but that her compliance was excused for District's "estoppel." We cannot reasonably construe the operative complaint as generally alleging compliance or an excuse therefor. (See Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1232, 1237-1239 [allegation that plaintiff "filed a timely claim complying with the required claims statute" was sufficient to withstand demurrer]; Esparza v. Kaweah Delta District Hospital (2016) 3 Cal.App.5th 547, 549 [following Perez]; Gong v. City of Rosemead (2014) 226 Cal.App.4th 363, 374.) But even if we could, plaintiff's exhibits would contradict such an allegation. Her August 18, 2014 letter addresses her job performance and skills; it contains none of the required contents of the Act (§ 910) and it does not indicate it was presented to or received by the District's clerk, secretary or auditor. (§ 915; DiCampli-Mintz v. County of Santa Clara, supra, 55 Cal.4th at pp. 991-993 [claim may be deemed validly presented if it is actually received by the clerk, secretary auditor or board of the local public entity, but "an undelivered or misdirected claim fails to comply with the statute"].) That plaintiff in October 2014 followed her letter with the notice stating she sought reinstatement and intended to sue, without including a request for damages, does not change that result. (See Loehr v. Ventura County Community College Dist., supra, 147 Cal.App.3d at p. 1083.) In Loehr, a letter demanding reinstatement and threatening legal action was deemed insufficient as a matter of law to satisfy the Act's claim filing requirements. (Ibid. [the letter "was merely a demand that the [defendant] reinstate plaintiff as superintendent of the district or face possible legal action. . . . Nowhere in the letter is there a claim for money damages"].) We cannot conclude from the operative pleading or its exhibits that plaintiff substantially complied with the Act.
Plaintiff alleges she had several communications with District. But she cannot piece together a series of letters to constitute claims compliance. (Dilts v. Cantua Elementary School Dist. (1987) 189 Cal.App.3d 27, 35-36; Schaefer Dixon Associates v. Santa Ana Watershed Project Authority (1996) 48 Cal.App.4th 524, 535.) "The established procedure for the filing of claims pursuant to the Tort Claims Act would become totally unworkable if this court were to hold that a series of writings could collectively be considered a claim. [¶] If a series of letters received over a period of time could collectively constitute a claim, it would be impossible to ascertain whether a claim had been presented within the 100 days or one-year time limitation as specified in section 911.2. . . . It would be difficult for the public entity to identify whether a particular letter were a claim and which letter triggered its obligation to accept or deny a claim if a series of correspondence could be considered collectively to constitute a claim. If an agency was unable to determine whether a claim had been filed or when the claim had been filed, it would be equally difficult for the court to determine which statute of limitation applied or when the statute of limitation began to run. [¶] . . . The letters sent to the district on behalf of [the employee] by his attorney do not constitute a claim within the meaning of the Tort Claims Act, and the doctrine of substantial compliance cannot be applied." (Dilts, at pp. 35-36; Schaefer Dixon Associates v. Santa Ana Watershed Project Authority, at p. 536.)
Nor does plaintiff's August 18, 2014 letter indicate she is seeking damages or asserting a monetary claim, that, if not resolved, will result in a lawsuit. This renders the letter insufficient to comply with the Act as a "claim as presented." (See Westcon Construction Corp. v. County of Sacramento, supra, 152 Cal.App.4th at pp. 202-203; City of Stockton v. Superior Court, supra, 42 Cal.4th at pp. 744-745 & fn. 11; Green v. State Center Community College Dist., supra, 34 Cal.App.4th at p. 1359.) "Courts have long recognized that '[a] claim that fails to substantially comply with sections 910 and 910.2, may still be considered a "claim as presented" if it puts the public entity on notice both that the claimant is attempting to file a valid claim and that litigation will result if the matter is not resolved.' " (State v. Superior Court (Bodde), supra, 32 Cal.4th 1234, 1245.) "[T]o be sufficient to constitute a trigger-claim under section 910.8, the content of the correspondence to the recipient entity must at least be of such nature as to make it readily discernible by the entity that the intended purpose thereof is to convey the assertion of a compensable claim against the entity which, if not otherwise satisfied, will result in litigation." (Green v. State Center Community College Dist., at p. 1358.)
But plaintiff's August 2014 letter was not her only communication with District. Plaintiff alleges she also mailed to District's superintendent and others her October 2014 notice which states in part: "Enclosed you will find a request for reinstatement because of wrongful termination from San Diego Early Middle College of SDUSD. Ten days after receipt of same without positive response and or reinstatement of the wrongfully terminated job position will result with me [sic] bringing suit in a California Superior Court for wrongful termination. [¶] This shall serve as notice of intent to sue a public entity." That litigation might ensue "is the most essential element of a 'claim as presented,' because it satisfies the primary purposes of the . . . Act: facilitating the investigation of disputes and their settlement without trial if appropriate." (City of Stockton v. Superior Court, supra, 42 Cal.4th at p. 744.) Plaintiff alleges District did not respond to that notice. Liberally construed, we conclude the complaint shows this document, which notified District plaintiff was prepared to file a wrongful termination lawsuit in superior court, constituted a claim as presented. (Accord, Wilson v. Tri-City Hospital District (1990) 221 Cal.App.3d 441, 445 [letter questioning whether hospital was prepared to pay substantial settlement amount required, and inquiring whether its attorney would accept service, was sufficient "claim as presented" under Phillips]; Alliance Financial v. City and County of San Francisco, supra, 64 Cal.App.4th at pp. 640, 649 [letter summarizing amounts due and expressing willingness to meet with city representatives "prior to filing an action for recovery of those sums" was a claim as presented].) District thus had a duty to notify her of defects or omissions. (See Page v. MiraCosta Community College Dist. (2009) 180 Cal.App.4th 471, 493; Westcon Construction Corp. v. County of Sacramento, supra, 152 Cal.App.4th at p. 202.) District's failure to notify plaintiff of any deficiencies thus waived its defenses to the claim's sufficiency. (Alliance Financial v. City and County of San Francisco, supra, 64 Cal.App.4th at p. 643; Westcon Construction Corp. v. County of Sacramento, at p. 183.)
Notwithstanding our conclusion, we hold the court did not err in sustaining District's demurrer without leave to amend. We affirm the judgment because as to all of plaintiff's claims, either District is immune or plaintiff has not demonstrated the operative complaint states viable causes of action.
IV. Plaintiff's Non-FEHA Claims
A. Common Law Claims
1. Third Cause of Action for Retaliation in Violation of Public Policy
Plaintiff's third cause of action, labelled "retaliation in violation of public policy," alleges she was terminated for "not wanting to break the law by violating the HIPAA Act of 1996" and that the reasons for her termination were pretextual. She alleges these actions "give[] rise to a common law action in tort." Such a claim for retaliation in violation of public policy is indeed one arising under the common law. (See Ross v. San Francisco Bay Area Rapid Transit District (2007) 146 Cal.App.4th 1507, 1513-1514.)
As a consequence, the trial court correctly sustained District's demurrer without leave to amend on grounds of immunity. Section 815 abolishes common law tort liability for public entities, including tort liability for wrongful termination in violation of public policy. (§ 815, subd. (a) ["Except as otherwise provided by statute: [¶] (a) A public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person"]; Miklosy, supra, 44 Cal.4th at pp. 899-900.) A public entity can be held liable only as provided by statute or required by the state or federal Constitution. (Miklosy, at p. 899 ["Because the 'classic Tameny cause of action' is a common law, judicially created tort . . . and not authorized by statute, it is not properly asserted against the Regents"].) Absent a statutory or constitutional basis to hold District as a public entity liable for the common law tort of retaliation in violation of public policy, it is immune from such liability. (Id. at pp. 899-900.)
On appeal, plaintiff does not explain how her allegations otherwise state a cause of action. As to this third cause of action (as well as her seventh and eighth causes of action), plaintiff makes no legal argument; she merely argues these causes of action are "valid" because Principal Larkin has been permitted to continue, and District tolerates, her "unlawful" acts against unrelated persons. Her unsupported factual assertions are both unavailing and beyond the pleadings. We presume the court's judgment is correct, and plaintiff " 'must raise claims of reversible error or other defect [citation], and "present argument and authority on each point made" ' " or risk abandonment of her claims. (Conservatorship of Ben C. (2007) 40 Cal.4th 529, 544, fn. 8; In re Sade C. (1996) 13 Cal.4th 952, 994.) "An appellate court is not required to consider alleged errors where the appellant merely complains of them without pertinent argument." (Strutt v. Ontario Sav. & Loan Assn. (1972) 28 Cal.App.3d 866, 873.) The fact that plaintiff is not represented by counsel does not excuse these deficiencies. Self-represented litigants are entitled to the same, but no greater, consideration than other litigants and attorneys. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1247.) Given the absence of any reasoned argument, we deem abandoned plaintiff's challenge to the court's order sustaining the demurrer to her third cause of action.
2. Seventh Cause of Action for Wrongful Termination in Violation of Public Policy
Plaintiff's seventh cause of action is labelled a Tameny claim, a tort claim for discharge in violation of a firmly established public policy. (Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167, 172, 176-177; see Ross v. San Francisco Bay Area Rapid Transit District, supra, 146 Cal.App.4th 1513-1514.) Plaintiff's claim, however, overlaps with her FEHA claim; she alleges she was terminated because "she was not performing well because of her age," she did not want to engage in "illegal activities," and she "ha[d] to use her native language to do her job." We disregard the duplicative allegations, as Tameny claims are defined to exclude claims that are redundant to those authorized by statute. (Ross, at p. 1514.) To the extent there is any claim remaining, it arises under the common law, and thus District is immune as a matter of law. (§ 815, subd. (a); Miklosy, supra, 44 Cal.4th at pp. 899-900.) As stated above, plaintiff does not make a reasoned argument to the contrary.
3. Eighth Cause of Action for Wrongful Termination in Violation of Public Policy
Plaintiff's eighth cause of action is labelled as one asserting a public policy violation in connection with her termination, referring to Labor Code sections 1050, 921 and 922. Plaintiff alleges in a conclusory manner that by doing nothing in response to her rebuttal, the human resources officer "prevented [her] from obtaining employment and therefore . . . violated Labor Code section 1050." Plaintiff's remaining allegations are argumentative statements and conclusions of law.
Labor Code section 1050 provides: "Any person, or agent or officer thereof, who, after having discharged an employee from the service of such person or after an employee has voluntarily left such service, by any misrepresentation prevents or attempts to prevent the former employee from obtaining employment, is guilty of a misdemeanor."
Assuming this cause of action is not a common law claim from which District is immune, plaintiff fails nevertheless to state a cause of action for violation of Labor Code section 1050. As District points out, the section applies only to misrepresentations made to prospective employers, not to misrepresentation by District's employees to other employees. (Kelly v. General Telephone Co. (1982) 136 Cal.App.3d 278, 288.) The trial court correctly sustained District's demurrer to this cause of action. B. Fourth and Fifth Causes of Action for Harassment and Failure to Prevent Harassment
Though plaintiff refers to FEHA (§ 12940) in labelling her fourth cause of action for harassment, she does not allege harassment on the basis of her belonging to a protected group. (§ 12940, subd. (j)(1); see Jones v. Department of Corrections & Rehabilitation (2007) 152 Cal.App.4th 1367, 1377 [reciting elements of FEHA harassment claim].) Rather, she alleges that her "viewpoint[]" that she did not want to perform unspecified illegal activities was protected under the California Whistleblower Protection Act (WPA; § 8547 et seq.), and that the defendants created a hostile work environment on account of that viewpoint. She alleges defendants failed to remedy the hostile work environment in part by permitting her to be harassed by Principal Larkin "on account of insubordination and bad performance evaluation."
As to this cause of action, District's demurrer was properly sustained without leave to amend. To the extent plaintiff's fourth cause of action can be construed as sounding in a violation of the WPA, the claim is barred for her failure to allege she exhausted the WPA's own functionally equivalent claims process. (See Cornejo v. Lightbourne (2013) 220 Cal.App.4th 932, 940-941 [explaining WPA claims process and holding a WPA action is not subject to government claims act presentation procedures because the WPA has its own equivalent claim process].) And, to the extent the claim is based on Principal Larkin's assertions in plaintiff's performance evaluation, plaintiff cannot allege the requisite harassment. " ' "[H]arassment consists of conduct outside the scope of necessary job performance . . . ." ' " (Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 707.) Thus, "commonly necessary personnel management actions such as hiring and firing . . . [and] performance evaluations . . . , and the like" typically "do not come within the meaning of harassment." (Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 64-65; see also Roby, at p. 707.) And plaintiff in her EEOC complaint complained only of Principal Larkin "micromanag[ing] [her] time" and "constantly look[ing] over [her] shoulder," which as a matter of law does not constitute harassment. (Roby, at p. 707 [harassment "focuses on situations in which the social environment of the workplace becomes intolerable because the harassment (whether verbal, physical, or visual) communicates an offensive message to the harassed employee"]; see also Janken, at p. 63 ["[H]arassment includes, but is not limited to, verbal epithets or derogatory comments, physical interference with freedom of movement, derogatory posters or cartoons, and unwanted sexual advances"].)
Independent of those conclusions, plaintiff's appellate arguments do not demonstrate how her complaint states a harassment cause of action; she merely asserts other employees were subjected to Principal Larkin's harassment and the activities were "reported to [District] and [CSEA] as in my case but so far they have received deaf ears . . . ." Such unsupported assertions are wholly insufficient to demonstrate error.
Plaintiff's fifth cause of action is by its nature auxiliary: Without actionable harassment, there can be no claim for failure to prevent harassment. (See, e.g., Carter v. California Dept. of Veterans Affairs (2006) 38 Cal.4th 914, 925, fn. 4 ["courts have required a finding of actual discrimination or harassment under FEHA before a plaintiff may prevail under section 12940, subdivision (k)"]; Thompson v. City of Monrovia (2010) 186 Cal.App.4th 860, 880 [harassment and failure to prevent harassment under FEHA]; Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1021; Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th 280, 288.)
Plaintiff's sole argument concerning these two claims on appeal is that Principal Larkin has created a hostile environment and has harassed employees other than herself. By this argument, she has not demonstrated she can state viable causes of action.
V. Plaintiff's FEHA Claims
We observe that, contrary to the court's ruling, in view of plaintiff's allegations as to her EEOC complaint, claims presentation requirements do not extend to her claims brought under FEHA. Such actions are excused from the government claim filing requirements. (See Murray v. Oceanside Unified School District (2000) 79 Cal.App.4th 1338, 1360; Garcia v. Los Angeles Unified School District (1985) 173 Cal.App.3d 701, 711; Snipes v. City of Bakersfield (1983) 145 Cal.App.3d 861.) In Garcia, the plaintiff filed a charge with the EEOC alleging discrimination based on sex, national origin and retaliation for filing an earlier EEOC complaint, obtained a right to sue letter, and filed an action in superior court alleging harassment and discrimination resulting in humiliation, mental anguish and emotional distress. (Garcia, at p. 706.) The appellate court held that the claims-presentation requirements of the Act did not apply because her civil complaint, which incorporated the EEOC complaint, alleged unlawful employment practices proscribed by FEHA. (Id. at pp. 710-711.) Garcia, relying on Snipes, explained that " '[t]he provisions of FEHA for filing a complaint with the department, administrative investigation, and service of the complaint on the employer serve a similar function' " as the government claim filing requirement, "which [is] to give the public entity an opportunity to settle a claim before suit is brought, to permit early investigation of the facts, to facilitate fiscal planning for potential liabilities, and to avoid similarly caused injuries or liabilities in the future." (Garcia, at p. 712, quoting Snipes, 145 Cal.App.3d at p. 869.) Because the District in Garcia obtained "ample notice" of plaintiff's employment discrimination claim through her prelitigation complaints and had the opportunity to investigate and resolve the claim through the statutory procedures provided by that scheme, the plaintiff was excused from compliance with the government claim filing requirement. (Ibid.)
As in Garcia, in this case the operative complaint indicates plaintiff filed her administrative complaint with the EEOC within one year of the alleged wrongful act of employment discrimination (§ 12960, subd. (d)) and received a right to sue notice. Plaintiff has lodged her complaint and notice to sue on appeal. We conclude under the circumstances that plaintiff was not required to file a claim against District prior to bringing her claims under FEHA for redress of unlawful employment practices. District through her EEOC complaint had an opportunity to investigate and resolve her claim through the statutory procedures, and it has lost only a technical defense based on the claims Act. (Garcia v. Los Angeles Unified School District, supra, 173 Cal.App.3d at p. 712.)
However, as we explain, plaintiff has not demonstrated she can allege viable causes of action under FEHA in any event. Accordingly, the trial court did not err in sustaining District's demurrer without leave to amend. A. First Cause of Action for Age and National Origin Discrimination
FEHA provides that, with certain exceptions, it is an unlawful employment practice for an employer to discharge a person from employment or to discriminate against a person in compensation or in terms, conditions, or privileges of employment because of the person's race, religious creed or age. (§ 12940, subd. (a).) To state a discrimination claim under FEHA, a plaintiff must show (1) she was a member of a protected class; (2) she suffered an adverse employment action; (3) she was satisfactorily performing her job when the adverse action was taken against her; and (4) there were circumstances suggesting that the employer acted with a prohibited discriminatory motive. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 355; Caldwell v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 202, fn. 7 [the plaintiff must plead a prima facie case in order to survive a demurrer].)
Here, plaintiff contends that this cause of action is valid "because I was replaced by Caucasian Christy Holley, a significantly younger woman who was hired by [Principal] Larkin to take over my position . . . ." She contends others were subjected to similar adverse employment actions. These arguments, of course, do not demonstrate in any way how plaintiff's conclusory allegations state a cause of action for age or national origin discrimination under FEHA. " 'It is not our place to construct theories or arguments to undermine the judgment and defeat the presumption of correctness. When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived.' " (Dietz v. Meisenheimer & Herron (2009) 177 Cal.App.4th 771, 799.) It is plaintiff's obligation to tailor her appellate arguments to the appropriate standard of review. (People v. Foss (2007) 155 Cal.App.4th 113, 126 ["When an appellant fails to apply the appropriate standard of review, the argument lacks legal force"].) Plaintiff does not do so here.
We are cognizant that it is our role on this appeal to liberally construe plaintiff's pleadings. (Wilson v. Hunek (2012) 207 Cal.App.4th 999, 1007.) But the third amended complaint includes no facts from which we may reasonably infer that District was aware of plaintiff's Mexican national origin or acted out of a motivation to discriminate against her because of that characteristic. (See Guz v. Bechtel Nat. Inc., supra, 24 Cal.4th at p. 355 [prima facie case of discrimination includes as an element some "other circumstance [that] suggests discriminatory motive"]; Scotch v. Art Institute of California, supra, 173 Cal.App.4th at p. 1004.) And, the fact that her exhibits demonstrate that District believed she had exhibited unsatisfactory performance shows a legitimate nondiscriminatory reason for its action. (Scotch v. Art Institute, at p. 1004.) Plaintiff has already been given an opportunity to amend and cure her pleading. We conclude on this record, she is not capable of alleging facts sufficient to state a cause of action against District for age or national origin discrimination under FEHA. The trial court properly sustained District's demurrer without leave to amend as to this cause of action. B. Second Cause of Action for Retaliation in Violation of FEHA
Plaintiff claims District retaliated against her in violation of FEHA, which makes it unlawful for an employer "to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part." (§ 12940, subd. (h); see Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1035.) To plead a claim of retaliation, plaintiff must allege facts to show she engaged in a "protected activity," District subjected her to an adverse employment action, and a causal link existed between the protected activity and the district's action. (See Yanowitz, at p. 1042 [stating the elements of a prima facie case of retaliation under FEHA].) Protected activity includes complaining of or opposing conduct that the employee reasonably believes to be discriminatory, even if a court later determines the conduct was not actually prohibited by FEHA. (Id. at p. 1043.)
Setting aside plaintiff's legal conclusions, she alleges her termination was based on the defendants' "continuous and ongoing course of conduct to harass Plaintiff and to retaliate against her for not wanting to do activities that would bring [her] liability, prison and fines." On appeal, she contends (via her argument heading) that she stated a viable cause of action because Principal Larkin allowed retaliation against not only her but against others who were over 40 years old. Though plaintiff acknowledges her pleading burden, plaintiff does not explain how her third amended complaint sufficiently alleges she was retaliated against for engaging in protected activity by complaining of or opposing practices forbidden under FEHA. "[A]n employee's unarticulated belief that an employer is engaging in discrimination will not suffice to establish protected conduct for the purposes of establishing a prima facie case of retaliation, where there is no evidence the employer knew that the employee's opposition was based upon a reasonable belief that the employer was engaging in discrimination." (Yanowitz v. L'Oreal USA, Inc., supra, 36 Cal.4th at p. 1046.) Plaintiff simply has not demonstrated that the third amended complaint states a valid cause of action for prohibited retaliation under FEHA. C. Sixth Cause of Action for Wrongful Termination in Violation of FEHA
Plaintiff's sixth cause of action purports to allege wrongful termination in violation of FEHA. Her sole allegations are that the defendants violated FEHA when they "terminated her on the declared and perceived belief [she] was not performing her work because of her age and unwillingness to break the law to keep her job." She alleges she was "also harassed because of her national origin as she needed to use her native language to perform her job." On appeal, plaintiff does not address this particular cause of action. She somewhat incomprehensibly states in a heading that all of her claims are valid "because I am enclosing the results of my investigation to San Diego Early Middle College." Such cursory, unspecific and unsupported arguments do not demonstrate that plaintiff can state a cause of action for wrongful termination under FEHA.
VI. Plaintiff's Claims of Misrepresentation and Estoppel
Throughout her opening brief, plaintiff argues District's and CSEA's attorneys somehow misled the court or misrepresented certain facts. As best we discern, she contends their misrepresentations should estop District or CSEA from challenging the sufficiency of her government claim or her causes of action. Plaintiff suggested such an argument in her opposition to District's demurrer below. It is true that " '[a] public entity may be estopped from asserting the limitations of the tort claims statutes where its agents or employees have prevented or deterred the filing of a timely claim by some affirmative act.' " (Castaneda v. Department of Corrections & Rehabilitation (2013) 212 Cal.App.4th 1051, 1064.) But any act or misleading statement must be made by the public entity or its agents or employees, not the attorney representing the public entity during litigation. (Id. at p. 1065 [pointing out "[t]he deputy attorney general had no special relationship with [plaintiff] or her attorneys other than as an opposing party in the litigation, and so the State's attorney had no affirmative obligation to remind [plaintiff] to comply with the Act"].) We see no basis to conclude estoppel applies, or that plaintiff's arguments somehow compel a different conclusion as to the sufficiency of her third amended complaint.
VII. Trial Court's Findings and Claim of Prejudice
Plaintiff contends the trial court failed to make requested findings on material factual issues. We are unable to locate any place in the record where plaintiff asserted such an objection below, and she provides no corresponding appendix citation. In any event, it was not for the trial court to make findings on factual issues in considering District's demurrer. "[T]he limited role of a demurrer [is] to test the legal sufficiency of a complaint." (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994; see also E-Fab, Inc. v. Accountants, Inc. Services (2007) 153 Cal.App.4th 1308, 1315 [" 'A demurrer tests the pleading alone, and not the evidence or the facts alleged' "].) As for plaintiff's claim of prejudice, we see nothing in her cited criminal authorities, which involve claims of inadequate representation by counsel (see People v. Hood (1956) 141 Cal.App.2d 585; People v. Prado (1961) 190 Cal.App.2d 374, 377), to warrant a different conclusion on our part. Having upheld the court's order sustaining District's demurrer, we are unable to find any basis to conclude the court was prejudiced against plaintiff in its ruling.
VIII. Plaintiff Has Not Shown a Reasonable Possibility an Amendment Would Cure the
Defects in Her Third Amended Complaint
An appellate court must reverse a judgment following an order sustaining a demurrer without leave to amend if there is a reasonable possibility the defect can be cured by amendment. (Centinela Freeman Emergency Medical Associates v. Health Net of California, Inc. (2016) 1 Cal.5th 994, 1010; Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.) The burden of proving such a reasonable possibility is squarely on the plaintiff. (Centinela, at p. 1010.) But to satisfy the burden on appeal of showing a reasonable possibility that an amendment will cure the defects, a plaintiff must not only set forth the legal basis for amendment, but " 'must show in what manner [she] can amend [her] complaint and how that amendment will change the legal effect of [her] pleading.' " Rakestraw v. California Physicians' Service (2000) 81 Cal.App.4th 39, 44.) She must set forth "factual and specific, not vague or conclusionary" allegations that sufficiently state all required elements of the challenged causes of action. (Rakestraw, at pp. 43-44.) "Where the appellant offers no allegations to support the possibility of amendment and no legal authority showing the viability of new causes of action, there is no basis for finding the trial court abused its discretion when it sustained the demurrer without leave to amend." (Id. at p. 44.)
Here, the court did not abuse its discretion in denying plaintiff leave to file a fourth amended complaint. There is nothing in the record or in plaintiff's appellate brief showing she could add allegations to her pleading that would support a viable cause of action. The court gave her several opportunities to state a valid cause of action, but she was unable to do so. On this record, there is no basis to conclude the court abused its discretion in sustaining District's demurrer without leave to amend.
DISPOSITION
The judgment is affirmed.
O'ROURKE, J. WE CONCUR: HUFFMAN, Acting P. J. NARES, J.