The opinion
Filed 2/11/26 Hill v. City of El Centro CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
IRMA HILL, D084500
Plaintiff and Appellant,
v. (Super. Ct. No. ECU003107)
CITY OF EL CENTRO et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Imperial County,
L. Brooks Anderholt, Judge. Reversed in part and remanded.
Law Offices of Gavril T. Gabriel, Gavril T. Gabriel, Athina Kotsia,
Nikolaos Kefallonitis and Sherri Davoodi, for Plaintiff and Appellant.
Gibbs & Fuerst, Michael T. Gibbs; Kahana Feld and Kevin L. Borgen,
for Defendant and Respondent City of El Centro.
McCormick, Mitchell & Rasmussen, John P. McCormick, Konrad M.
Rasmussen and Brett L. Cirincione, for Defendant and Respondent Patricia
Urena.
Until March 2020, Irma Hill worked as a parttime recreation leader at
the community center operated by the City of El Centro (the City). At that
time, due to the COVID-19 shutdown, the center’s parttime employees were
told they were being temporarily laid off and that they would later be
reinstated without having to submit a job application. By June 2021, the
City had fulfilled this promise for all the parttime workers except Hill.
Patricia Urena, Hill’s supervisor and the person responsible for calling her
back to work, said she needed to apply for her old job. But this would be a
futile endeavor, Urena indicated, in part because of Hill’s age and having
been diagnosed with diabetes.
From Hill’s perspective, being singled out in this manner capped years
of mistreatment by Urena based on ageism, ableism, and other intolerances.
As a result, she sued both the City and Urena. Against the City, she asserted
claims under the Fair Employment and Housing Act (Gov. Code, § 12900 et
seq.) for discrimination and retaliation in dismissing her and not reinstating
and/or hiring her, along with common law claims of wrongful termination
and wrongful failure to hire. She also alleged statutory harassment claims
against both defendants and a statutory claim against the City for failure
to prevent harassment and discrimination. The trial court sustained
defendants’ demurrers to all of Hill’s claims without leave to amend and
entered judgment in their favor.
Hill’s appeal from the judgment seeks to recover a subset of her claims.
Based on our de novo review of the operative complaint, we conclude that Hill
has alleged facts corresponding to each element of her statutory claims for
age and disability discrimination, retaliation, harassment, and failure to
prevent harassment and discrimination. Accordingly, judgment as to those
claims, as well as her derivative common law unlawful termination claim,
2
is reversed. But Hill is ineligible as a matter of law to pursue a common law
claim of wrongful failure to hire; thus, we affirm the judgment as to this
claim and several others not addressed on appeal. We also conclude that
Hill’s allegations of punitive damages against Urena have been sufficiently
pleaded.
FACTUAL AND PROCEDURAL BACKGROUND1
A. Hill’s Employment
In June 2009, the City hired Hill as a parttime recreation leader at
its community center. Her main responsibilities, which she competently
performed, were to teach preschool classes, prepare schedules for parents,
serve food, and clean up. Hill reported directly to Urena for the duration
of her employment with the City.
From the beginning, Urena made offensive and humiliating comments
to and about Hill. Relevant here is that from 2015 through early 2020, Urena
“repeatedly” referred to Hill and another employee as “abuelas” (Spanish for
“grandmothers”). In Urena’s opinion, Hill—who turned 42 years old in April
2015—was of the age when “the mind is not fresh anymore.” In 2016, Hill
was diagnosed with diabetes after she had a medical emergency at work that
1 Background facts are taken from the well pleaded allegations in Hill’s
second amended complaint (SAC) corresponding to the claims she seeks to
revive on appeal. (Thomas v. Regents of University of California (2023) 97
Cal.App.5th 587, 611 (Thomas) [reviewing a general demurrer by crediting
complaint’s factual allegations but disregarding its contentions, deductions,
and legal conclusions].) As to Hill’s discrimination and harassment claims,
she focuses exclusively on Urena’s alleged age- and disability-related conduct
that started in 2015 and 2016, respectively; thus, Hill has abandoned her
other claims and allegations. (Tukes v. Richard (2022) 81 Cal.App.5th 1, 21
[“if the proponent of a theory does not consider it worthy of recitation to the
appellate court, the appellate court is entitled to presume the theory has no
merit”].)
3
required a trip to the hospital in an ambulance. From the time of that
diagnosis into 2020, Urena “repeatedly mocked” Hill in front of others for
being diabetic, “consistently” told them not to give Hill any sweets because
they would make her sick, and announced that Hill “could not work much”
because of her medical condition.
Hill reached her tipping point in the summer of 2019 after Urena
falsely accused her of stealing food. She immediately complained to Adriana
Nava, the director of the department to which Hill was assigned, about that
accusation and Urena’s continuing comments concerning her diabetes
diagnosis. To Hill’s knowledge, the City did not take any steps to address
Urena’s behavior.
In March 2020, the City called a meeting for the employees in Hill’s
department during which it was announced that those working part time
were being “temporarily laid off” to mitigate the spread of COVID-19. Once
“things stabilized,” however, “everyone would receive their jobs back.” The
City represented that those who were laid off “would not have to reapply as
all employees would be, ultimately, re-employed, since the layoff was only
temporary and aimed to protect the personnel from getting sick.”
Roughly a year later, Hill began calling Urena weekly to inquire about
returning to work.2 When reached, Urena told her that Hill’s department
was closed and the City did not want anyone in the community center.
2 The SAC alleges the events described in this paragraph took place in
2020, whereas Hill’s briefs assert that they occurred in 2021. In responding
to the City’s demurrer, Hill’s counsel represented that he inadvertently used
the incorrect date in the SAC. The City agrees these events could not have
occurred in 2020 due to the measures taken to prevent the spread of COVID-
19. So do we. Therefore, we credit Hill’s counsel’s explanation and describe
these events as occurring in 2021. (See post, at pp. 12–13.)
4
But in May and June of 2021, Hill saw that some of her previously laid off
coworkers were back at work.
Not satisfied with Urena’s explanations, Hill contacted the El Centro
City Hall in June 2021 to inquire about her employment status. She spoke to
someone named “Louisa,” who confirmed that Hill did not need to apply for
her old job and said Urena was responsible for calling her back to work. Hill
was not surprised Urena had this responsibility given her past involvement
in hiring employees, sometimes without going through the City.
After calling City Hall, Hill again phoned Urena about returning to
work. Urena said that everyone who had been laid off needed to apply for
their old jobs and that Nava preferred to hire applicants with master’s
degrees. Although Hill did not have a college degree, she told Urena her
prior experience as a recreation leader qualified her to return in that role.
Urena replied that “as an old person, [Hill’s] brain was not fresh anymore,
and that [she] could not do a lot of things due to . . . having diabetes.”
Moreover, according to Urena, the City “wanted young people with college
degrees who had fresh minds and thought outside the box.” This was not
totally true, as Hill knew the City had hired “many recent high school-
graduates . . . not having college degrees.” In any case, Hill did not submit a
new application for a recreation leader position.
Eventually, all of the parttime workers with the exception of Hill were
reinstated. But the events of May and June 2021 were the first indications to
Hill that the City would not follow through on its earlier promise to reinstate
all the parttime workers. As Hill saw it, the disparate treatment by Urena—
and by extension the City—turned what was supposed to be a “temporary
layoff” into “a termination or, in the alternative, a failure to rehire.”
5
B. Hill’s Administrative and Civil Complaints
The Fair Employment and Housing Act (FEHA or the Act; Gov. Code,
§ 12900 et seq.)3 “affords California employees broad protection against
discrimination, harassment, and retaliation on any of a wide range of
impermissible bases.” (McDonald v. Antelope Valley Community College
District (2008) 45 Cal.4th 88, 106 (McDonald).) A person who wishes to bring
a civil lawsuit for a FEHA violation must first exhaust the administrative
process. (Ibid.) Exhaustion entails (1) filing a verified complaint with the
Civil Rights Department (CRD) within three years of the allegedly unlawful
employment practice, and (2) obtaining a right-to-sue notice.4 (Ibid.; see also
§ 12960, subds. (c) & (e)(5).)
Generally, CRD investigates a complaint’s allegations and decides what
actions to take, if any, including whether to initiate a lawsuit in its name on
the aggrieved person’s behalf. (See § 12965, subd. (a)(1).) At certain points,
the agency must either offer or issue a right-to-sue notice that enables the
victim to file his or her own civil complaint in lieu of waiting for the
investigation to be completed. (Id., subd. (c)(1)(A); see also McDonald, supra,
45 Cal.4th at p. 106.) The victim may forgo the right to an investigation and
3 Subsequent undesignated statutory references are to the Government
Code.
4 Prior to January 1, 2020, FEHA administrative complaints were
required to be filed within one year of the allegedly unlawful employment
practice. (§ 12960, as amended by Stats. 2019, ch. 709; see Legis. Counsel’s
Dig., Assem. Bill No. 9 (2019–2020 Reg. Sess.) § 1.) In addition, before July
2022, CRD was known as the Department of Fair Employment and Housing,
often abbreviated to “DFEH” in opinions issued before the name change.
(About the Civil Rights Department (CRD)
<https://calcivilrights.ca.gov/aboutcrd/> as of January 10, 2026, archived at
<https://perma.cc/BNH9-LG3K>.)
6
possible administrative remedies altogether by concurrently submitting with
his or her complaint a request for an immediate right-to-sue notice. (Clark v.
Superior Court (2021) 62 Cal.App.5th 289, 300 (Clark), citing Cal. Code
Regs., tit. 2, § 10005, subds. (c) & (d).) The agency must issue this notice
pursuant to such a request, after which the person has one year to file a civil
complaint. (§ 12965, subd. (c)(1)(C); Cal. Code Regs., tit. 2, § 10005, subd.
(a).)
In January 2023, Hill filed a verified administrative complaint and
requested an immediate right-to-sue notice. Her complaint included a
narrative discussion of the events discussed above, including the comments
Urena made in June 2021. Hill alleged that on the day of the department-
wide meeting in March 2020, she was “terminated, laid off, denied hire or
promotion” due to discrimination based on her age (over 40) and physical
disability (diabetes). Pointing to her meeting with Nava in 2019, Hill also
claimed the City retaliated against her for “report[ing] or resist[ing] any
form of discrimination or harassment.” Finally, Hill accused both Urena
and the City of harassing her based on her age and for being diabetic.
CRD immediately closed Hill’s complaint and issued a right-to-sue notice.
Eight months later, Hill sued the City and Urena. Based on the same
narrative stated in her administrative complaint, Hill asserted FEHA claims
against the City for age discrimination, disability discrimination, and
retaliation—all based on a theory that she had been unlawfully fired—as well
as harassment and failure to prevent harassment and discrimination. She
also alleged a FEHA harassment claim against Urena and requested punitive
damages.
Hill amended her complaint as a matter of right in November 2023
following the filing of demurrers by the defendants. As relevant here, Hill
7
broadened the scope of her FEHA discrimination and retaliation claims to
include City’s “decision to terminate her employment and/or not (re-)hire
her.” (Italics added.) She was subsequently given leave to file the operative
second amended complaint (SAC) after defendants renewed their demurrers.
In addition to adding more detail to support her FEHA claims, Hill alleged
two new common law tort claims against the City based on the same conduct
underlying her statutory discrimination and retaliation claims: (1) wrongful
discharge and (2) wrongful failure to hire.
Defendants again demurred. The City argued that any theory other
than that Hill was unlawfully fired in March 2020 was barred for failure
to exhaust the administrative process and by the sham pleading doctrine.
It contended that the factual allegations supporting Hill’s discrimination and
retaliation claims fell short because Urena lacked hiring and firing authority
and because there was no allegation that a recreation leader position was
open in June 2021. As for Hill’s harassment claims, both defendants believed
the SAC failed to identify any conduct that could be considered harassing.
Urena also demurred based on the assertion that most of the allegedly
harassing conduct was irrelevant because it occurred more than three years
before Hill filed her complaint with CRD.
Urena concurrently moved to strike two sets of allegations from the
SAC. The first category concerned alleged harassing conduct that occurred
before the limitations period for Hill’s harassment claim began. The second
category was comprised of Hill’s allegations regarding punitive damages. As
for the second, Urena reiterated the point made in her demurrer that none of
the allegations in the SAC described actionable harassment, much less
conduct so egregious as to support a claim for punitive damages.
8
In May 2024, the trial court sustained the defendants’ demurrers
without leave to amend. According to the corresponding order, the SAC
alleged no viable causes of action despite the fact that Hill had amended her
pleading two times. The court also found that Hill made no showing she
could cure what it characterized, but did not identify, as “fatal” pleading
deficiencies. Having dismissed all of Hill’s claims, the trial court denied
Urena’s motion to strike as moot.
DISCUSSION
Hill appeals the order sustaining defendants’ demurrers in order to
revive her FEHA age discrimination, disability discrimination, retaliation
and harassment claims as well as her common law claims, all of which stem
from Urena’s alleged discriminatory and harassing conduct. For all but Hill’s
harassment claims, the SAC must allege that the City took one or more
“adverse employment actions” against her. She alleges such actions based on
two theories: (1) Urena’s comments in June 2021 that Hill had to apply for
her old job but that she was too old and sick to perform the work effectively
terminated her because the City had promised to reinstate her automatically
(the termination theory), and (2) even assuming it was appropriate for the
City to require Hill to apply for a recreation leader position, Urena deterred
her from doing so based in large part on her age and diabetes diagnosis (the
deterred applicant theory).
This appeal involves five main issues. First, the City raises as a
preliminary argument that Hill did not exhaust the administrative process
for her deterred applicant theory. Were we to disagree, the City contends as
a second preliminary matter that this theory must be ignored because it was
brought into this case as a “sham” to avoid a demurrer. Third, the City
asserts that it cannot be held liable for the alleged discriminatory or
9
retaliatory conduct in taking either employment action because Urena lacked
authority to hire or fire employees. Fourth, as to Hill’s harassment claims,
both defendants argue the only conduct by Urena that is relevant must have
occurred within the three-year FEHA limitations period and that none of the
incidents from that period, or any other period for that matter, rise to the
level of harassment. Finally, if Hill’s harassment claim against Urena is
revived, these parties dispute whether the SAC sufficiently alleges
entitlement to punitive damages.
A. Standard of Review of an Order Sustaining a Demurrer
A complaint must contain “[a] statement of the facts constituting the
cause of action, in ordinary and concise language.” (Code Civ. Proc., § 425.10,
subd. (a)(1).) This requires the plaintiff to identify “the essential facts with
‘ “ ‘ “particularity sufficient to acquaint a defendant with the nature, source
and extent of [his or her] cause of action.” ’ ” ’ ” (Thomas, supra, 97
Cal.App.5th at p. 611; see also; see also Logan v. Southern California Rapid
Transit District (1982) 136 Cal.App.3d 116, 126 (Logan) [“to withstand a
demurrer, a complaint must allege ultimate facts, not evidentiary facts”].)
“ ‘[L]ess specificity is required in pleading matters of which the defendant
has superior knowledge,’ ” which means a plaintiff “ ‘ “need not particularize
matters ‘presumptively within the knowledge of the demurring’ defendant . . .
such as a defendant’s knowledge or notice or intent.” ’ ” (Thomas, at p. 611.)
An order sustaining a general demurrer is reviewed de novo.5
(Thomas, supra, 97 Cal.App.5th at p. 611.) “ ‘We accept as true, and liberally
construe, all properly pleaded allegations of material fact, as well as those
5 There is no reporter’s transcript of the hearing on the demurrers
included in the appellate record. Although it is preferable to have a complete
record of a trial court’s rulings, the absence of a transcript of these oral
proceedings is not fatal to Hill’s appeal given the de novo standard of review.
10
facts which may be implied or reasonably inferred from those allegations.’ ”
(Ibid.) At the demurrer stage, we are not concerned with the question of
Hill’s “ ‘ “ ‘ability to prove [her] allegations, or the possible difficulty in
making such proof.’ ” ’ ” (Ibid.) Rather, our “ ‘sole consideration is an issue
of law—whether the plaintiff’s complaint is sufficient to state a cause of
action under any legal theory.’ ” (Ibid.) “ ‘When a demurrer is sustained
without leave to amend, it is the duty of the reviewing court to decide
whether there is a reasonable possibility that the defect can be cured by
amendment. If it can, the trial court has abused its discretion and we must
reverse.’ ” (Id. at p. 605.)
B. Preliminary Issues
1. The Dates of Relevant Events as Alleged in the SAC
To a greater or lesser degree, our review of this case has been
complicated by the fact that the City refuses to acknowledge what Hill
concedes and even Urena appears to accept—that the SAC includes a
typographical error with respect to the dates on which certain events
allegedly occurred. The SAC pleads that various things—in particular, the
last phone call between Hill and Urena—happened in May and June 2020.
The City’s demurrer to the SAC pointed out that these allegations were
inconsistent with facts regarding the reopening of City facilities, of which
the court could take judicial notice. In response, Hill agreed. Her opposition
to the demurrer explained that the reference to “2020” in these paragraphs
of the SAC was a typographical error and should have been “2021.” But
despite this concession, the City’s appellate briefing persists in treating the
relevant events as having been alleged to have occurred in 2020 rather than,
11
as should be obvious from the context, 2021.6 We review the sufficiency of
the SAC on the assumption that this inadvertent error could be corrected and
that it would be an abuse of discretion to deny Hill the opportunity to do so.
2. Administrative Exhaustion
Separate and apart from any asserted pleading defects in the SAC, the
City challenges whether Hill exhausted the administrative process for her
deterred applicant theory, that is, that Urena’s June 2021 comments
unlawfully dissuaded her from applying for a recreation leader position.
Notwithstanding Hill’s reliance on these comments to support the claims in
her CRD complaint that she had been impermissibly terminated and/or
“denied hire,” the City reads that complaint as asserting only a claim of an
unlawful termination. Thus, the City argues, Hill did not preserve the right
to litigate any other theory of liability.
When a party obtained an immediate right-to-sue notice, “as a
practical matter, there was no administrative process to exhaust” because
no investigation was conducted. (Clark, supra, 62 Cal.App.5th at p. 305.)
In this circumstance, “[t]he administrative exhaustion requirement is
satisfied if FEHA claims in a judicial complaint are ‘ “ like and reasonably
related to” ’ those in the [CRD] complaint [citation] or ‘likely to be uncovered
6 The City’s appellate brief maintains that “[e]very argument about
conduct in 2021 in the [Appellant’s opening brief] . . . should be disregarded
because the SAC does not allege any occurrence in 2021.”
12
in the course of a DFEH investigation.’ ”7 (Clark, at p. 301.) This
assessment is made based on a liberal construction of the administrative
complaint. (Id. at p. 306.)
We have little trouble concluding Hill exhausted the administrative
process for her deterred applicant theory. Her CRD complaint expressly
identified this theory of liability based on Urena’s June 2021 comments. But
even if the agency’s investigators missed its mention, the close relationship
between Hill’s deterred applicant and termination theories makes both fair
game for this lawsuit.
3. Sham Pleading Doctrine
Having concluded that Hill preserved the right to pursue her deterred
applicant theory, we turn to the City’s contention that she is precluded by
the sham pleading doctrine from asserting it. Ordinarily, a court will
disregard an original complaint when an amended complaint is filed.
(Berman v. Bromberg (1997) 56 Cal.App.4th 936, 945.) But “ ‘[i]f a party
files an amended complaint and attempts to avoid the defects of the original
complaint by either omitting facts which made the previous complaint
defective or by adding facts inconsistent with those of previous pleadings,
the court may take judicial notice of prior pleadings and may disregard any
inconsistent allegations.’ ” (Zakk v. Diesel (2019) 33 Cal.App.5th 431, 447.)
“Where no explanation for the inconsistency is offered, the trial court is
7 The City argues that the procedures for determining exhaustion
described in Clark do not apply when the respondent is a public entity. This
argument has been forfeited for failure to raise it below. (In re Campbell
(2017) 11 Cal.App.5th 742, 756.) In any case, at least one reported case
involving a public entity has recognized this as the appropriate test (Kuigoua
v. Department of Veterans Affairs (2024) 101 Cal.App.5th 499, 507–509), a
fact the City’s argument leaves unaddressed.
13
entitled to conclude that the pleading party’s cause of action is a sham and
sustain a demurrer without leave to amend.” (Ibid.)
As the City sees it, Hill’s termination and deterred applicant theories
suffer from an irreconcilable, inherent inconsistency: “a wrongful 3/19/20
termination requires the City’s [COVID-19] explanation to be false, and a
wrongful June 202[1] denial of reemployment requires the City’s COVID-19
explanation to be true.” And because Hill did not address this perceived
inconsistency, it believes the sham pleading doctrine requires us to disregard
the later-added theory altogether.
But it is clear from the SAC that Hill based her alternative theories of
liability on Urena’s conduct in May and June of 2021. By June 2021, all the
other recreation leaders except Hill had been recalled to work without having
to reapply for their old jobs. In contrast, Hill was told she would have to
reapply in what Urena said would be a futile gesture. As we read the SAC,
Urena’s June 2021 comment that Hill needed to apply for her job indicated—
evidently for the first time—that she would not be automatically reinstated
and had effectively been fired. If Hill were not to succeed under that theory,
she believes Urena’s attempt to dissuade her from applying would be
actionable because FEHA prohibits an employer from discriminating or
retaliating against a job applicant.8
To the City’s point, no explanation was needed for Hill’s alternative
theories of recovery because there is no inconsistency. The City’s reasons for
laying Hill off have nothing to do with why she believes the City is liable for
8 CRD defines “applicant” as someone “who can prove that they have
been deterred from applying for a job by an employer’s or other covered
entity’s alleged discriminatory practice.” (Cal. Code Regs., tit. 2, § 11008,
subd. (b).) We give “great weight” to this definition. (Jimenez v. U.S.
Continental Marketing, Inc. (2019) 41 Cal.App.5th 189, 197.)
14
discrimination and retaliation. Even if there were some tension between
these alternative theories, it would be proper for Hill to assert both to
account for the uncertainty in what the ultimate facts—many of which will be
within the City’s exclusive knowledge—will show. (4 Witkin, Cal. Proc. (6th
ed. 2025) Pleading, § 417 [plaintiff may plead alternate theories based on
uncertainty as to either ultimate facts or legal theories of recovery].) Having
been provided with no reason why Hill’s amendments were made to unfairly
overcome a demurrer, we decline to conclude she ran afoul of the policy
against sham pleadings.
C. Sufficiency of Allegations in the SAC
1. FEHA Discrimination and Retaliation Claims
FEHA makes it unlawful for an “employer: to discriminate against
someone by “refus[ing] to hire or employ the person . . . or to bar or to
discharge the person from employment” based on age or physical disability.9
(§ 12940, subd. (a).) The Act’s antiretaliation provision also prohibits an
“employer” from “discharg[ing] . . . or otherwise discriminat[ing] against any
person because the person has opposed practices forbidden under this part.”
(Id., subd. (h).) Hill alleges that Urena’s history of commenting on her age
and diabetes diagnosis—as well as Urena’s authority to call her back to work
(or not)—establish that the City had discriminatory motives either to
terminate her employment or deter her job application. Hill further alleges
that the City also took these employment actions in retaliation for her
complaints to Nava in 2019 about Urena’s conduct.
The pleading requirements for Hill’s FEHA discrimination and
retaliation claims substantially overlap. The elements of each discrimination
9 The relevant FEHA provisions apply only to employers of five or more
persons (§ 12926, subd. (d)), a threshold met by the City.
15
claim are that she (1) was a member of a protected class; (2) was qualified for
the recreation leader job; and (3) suffered an adverse employment action that
(4) was substantially motivated by discriminatory intent. (Guz v. Bechtel
National, Inc. (2000) 24 Cal.4th 317, 355 (Guz).) Only the first and fourth
elements are different for her retaliation claim—she must allege that she
took part in a protected activity, and “retaliatory animus” was the substantial
motivation for the adverse employment action.10 (McCaskey v. California
State Automobile Assn. (2010) 189 Cal.App.4th 947, 987–988.)
The SAC alleges facts corresponding to these elements. Hill’s diabetes
diagnosis (§ 12926.1, subd. (c)) and being over 40 years old when the
employment actions were taken (§ 12926, subd. (b)) statutorily place her in
two classes of persons who FEHA protects from discrimination (§ 12940,
subd. (a)). The City does not dispute that Hill’s 2019 complaint to Nava
about Urena’s conduct was an “[i]nformal complaint[] to management about
discriminatory employment practices” that may be “considered sufficient
opposition to trigger the prohibition against retaliation.” (California Fair
Employment & Housing Com. v. Gemini Aluminum Corp. (2004) 122
Cal.App.4th 1004, 1018.) We can imply an allegation that Hill was qualified
to be a recreation leader based on her competent performance of the job and
that, contrary to Urena’s representation, no degree was needed. We can also
imply an allegation that there was an open recreation leader position in June
10 Hill also attempts to invoke FEHA’s antiretaliation provision because
she requested an accommodation in April 2020—after she was laid off —for
an injury she sustained earlier on the job. There are no allegations in the
SAC that Hill was still injured and thus needed an accommodation in May
and June of 2021 when she was not recalled to work. Without more, we
cannot conclude that her request as currently alleged supports a retaliation
claim.
16
2021, given that Urena tried to dissuade Hill from applying for the job rather
than simply telling her there were no openings.
These adverse employment actions, which fall within FEHA’s three-
year limitations period, are covered by the Act’s antidiscriminatory provision.
(Guz, supra, 24 Cal.4th at p. 355 [discriminatory firing and denial of a job];
Abed v. Western Dental Services, Inc. (2018) 23 Cal.App.5th 726, 740 (Abed)
[“a job application is not an element of the claim” of discriminatory denial
of a job].) The City does not dispute that they are also covered by its
antiretaliation provision.11 (§ 12940, subd. (h) [prohibiting retaliation
against “any person”]; Sada v. Robert F. Kennedy Med. Ctr. (1997) 56
Cal.App.4th 138, 159–160 [“a person . . . who seeks to be hired or employed”
is protected against both discrimination and retaliation].) And we must
credit Hill’s allegations that these employment actions were motivated by
discriminatory or retaliatory intent because the reasons why these decisions
were made are exclusively within the City’s knowledge. (Thomas, supra, 97
Cal.App.5th at p. 611.) In any case, these conclusions are supported by the
alleged evidentiary facts of Urena’s conduct and Hill’s meeting with Nava
about it.
For its part, the City argues that it did not take any adverse
employment actions because Urena lacked hiring and firing authority. The
City is correct that for an institutional or corporate employer to violate
FEHA, “the institution or corporation itself must have taken some official
action with respect to an employee, such as hiring [or] firing.” (Roby v.
McKesson Corp. (2009) 47 Cal.4th 686, 706 (Roby), italics omitted.) Invoking
this principle, the City charges Hill with knowledge of various El Centro city
11 The City fails to address Hill’s retaliation claim, erroneously asserting
that she abandoned it.
17
ordinances and rules that it contends gave someone other than Urena the
authority to make these personnel decisions.12 In other words, the City
contends, it cannot be held liable for Urena’s actions that were beyond the
scope of her authority.13
But employers are liable for discrimination or retaliation carried out by
an employee who was involved in the allegedly unlawful employment action
even if he or she was not the ultimate decisionmaker. (Abed, supra, 23
Cal.App.5th at pp. 743–744; Jones v. Lodge at Torrey Pines Partnership
(2008) 42 Cal.4th 1158, 1166–1167.) The SAC alleges facts showing, at a
minimum, that Urena was involved in deciding whether Hill would be
terminated and/or hired back. These claims, therefore, should have survived
the City’s demurrer.
2. FEHA Harassments Claims
FEHA prohibits an “employer . . . or any other person, because of
physical disability. . . [or] age, . . . to harass an employee [or] an applicant.”
(§ 12940, subd. (j)(1).) Harassing conduct includes “ ‘epithets, derogatory
12 These authorities were presented to the trial court in an unopposed
request for judicial notice. Although the record is silent on the court’s ruling
on that request, we assume it was granted under Evidence Code section 453.
13 The City also suggests in passing that Code of Civil Procedure section
818.8 confers immunity for any alleged misrepresentations made by Urena.
This argument is forfeited for lack of sufficient development. (Holden v. City
of San Diego (2019) 43 Cal.App.5th 404, 418.) In any case, immunity is an
affirmative defense (see Wang v. Nibbelink (2016) 4 Cal.App.5th 1, 10), and
thus will be decided on demurrer only when “the face of the complaint
discloses that the action is necessarily barred” (Casterson v. Superior Court
(2002) 101 Cal.App.4th 177, 183). The immunity conferred by Code of Civil
Procedure section 818.8 concerns only commercial or financial transactions
(Michael J. v. Los Angeles County Dept. of Adoptions (1988) 201 Cal.App.3d
859, 868–872), which are not at issue here.
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comments or slurs on a basis enumerated in’ ” FEHA. (Bailey v. San
Francisco District Attorney’s Office (2024) 16 Cal.5th 611, 626.) It is also
unlawful under the Act for an employer “to fail to take all reasonable steps
necessary to prevent discrimination and harassment from occurring.”
(§ 12940, subd. (k).)
Hill asserts claims of harassment against both Urena and the City.
The SAC identifies Urena’s comments concerning Hill’s age and diabetes
that started in 2015 and 2016, respectively, and continued through June
2021 as the actionable harassing conduct. For Hill’s harassment claim
against Urena to survive a demurrer, she must allege that (1) she was
subjected to unwelcome harassment based on a protected status, and (2)
the harassing conduct either “unreasonably interfered with [her] work
performance or created an intimidating, hostile, or offensive work
environment.” (Thompson v. City of Monrovia (2010) 186 Cal.App.4th 860,
876; § 12923, subd. (a).) As for the City, it is strictly liable for any of Urena’s
harassing conduct carried out in her supervisory capacity. (§ 12940, subd.
(j)(1); Hope v. California Youth Authority (2005) 134 Cal.App.4th 577, 588–
589.)
Hill also asserts a claim of failure to prevent harassment and
discrimination against the City. The elements of this claim are: (1) plaintiff
was subjected to discrimination, harassment or retaliation[14]; (2) defendant
failed to take all reasonable steps to prevent the wrongful conduct; and
(3) this failure caused plaintiff to suffer damage. (Caldera v. Department of
Corrections and Rehabilitation (2018) 25 Cal.App.5th 31, 43–44.)
14 Retaliation under FEHA includes “discriminat[ing]” against an
employee who opposed an action the statute forbids. (§ 12940, subd. (h).)
Thus, “discrimination” as used in subdivision (k) of section 12940 includes
retaliation.
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The parties appropriately focus their arguments on whether Hill
sufficiently alleged age- and disability-based harassing conduct by Urena,
whom everyone agrees was Hill’s supervisor for the duration of her
employment. We have already explained that Hill’s age and diabetes
diagnosis are two protected classes for the purposes of applying FEHA.
(See ante, at pp. 17–18.) Likewise, we have already determined the SAC
adequately alleges discrimination and retaliation as required for Hill to plead
her failure-to-prevent claim. (See ante, at pp. 17–20.) Whether the City took
all reasonable steps to prevent Urena’s alleged discriminatory and harassing
need not be pleaded with particularity because the efforts it took may not
be known to Hill. (Thomas, supra, 97 Cal.App.5th at p. 611.) And the City
does not call into question Hill’s factual contention that the City’s failure to
prevent these categories of conduct harmed her.
Turning to the Urena’s allegedly harassing conduct, there are two
points of contention. Defendants argue that because these are FEHA claims,
Hill may only assert harassment based on allegations of incidents occurring
on or after January 9, 2020—three years before Hill filed her CRD complaint.
Regardless of whether we agree on this timing issue, defendants maintain
that none of the alleged conduct was severe or pervasive enough to rise to the
level of harassment regardless of when it occurred. Hill counters that she
has alleged sufficient harassing conduct by Urena within the limitations
period, but also that she is entitled to rely on earlier acts of harassment.
Although the SAC is not a model of clarity with respect to what
incidents happened when, we agree with Hill that it sufficiently alleges
Urena harassed her during the limitations period. According to the SAC,
in 2020 while Hill was an employee, Urena “repeatedly” called her an
“abuela,” said that “she was already at an age where her mind was not fresh
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anymore,” “repeatedly mocked” her diabetes diagnosis, and “constantly”
referred to her medical condition in front of others during work events.
Urena reiterated those beliefs during her phone call with Hill—then an
applicant for the recreation leader position—in June 2021. Hill also alleged
the ultimate fact that a reasonable person would find Urena’s actions created
a “hostile, intimidating, offensive, oppressive, and abusive[]” work
environment.
We recognize that prevailing on a hostile work environment claim
requires a plaintiff to prove he or she has been subjected to more than just
“occasional, isolated, sporadic, or trivial” offensive conduct. (Lyle v. Warner
Brothers Television Productions (2006) 38 Cal.4th 264, 283.) But defendants’
contention that Urena’s actions belong in these nonactionable categories is
unavailing at this juncture because we are not concerned with whether Hill’s
allegations will carry her burden during later stages of this case. (Thomas,
supra, 97 Cal.App.5th at p. 611; cf. § 12923, subd. (e) [“hostile working
environment cases involve issues ‘not determinable on paper’ ”].) Nor do
we find persuasive defendants’ argument that Urena’s conduct was too
infrequent to constitute harassment, considering that a “single incident”
may establish “the existence of a hostile work environment.” (§ 12923, subd.
(b).) Hill’s harassment and failure-to-prevent harassment claims, therefore,
should have survived defendants’ demurrers based just on Urena’s conduct
alleged to have occurred during the limitations period.
Because the pleadings define the issues for subsequent proceedings
(Scalf v. D.B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519–1520),
we address the parties’ dispute as to whether, later in the case, Hill is
precluded from relying on Urena’s alleged conduct that occurred before the
limitations period began. As a general rule, harassment occurring outside
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of FEHA’s three-year limitations period is not actionable. (Dominguez v.
Washington Mutual Bank (2008) 168 Cal.App.4th 714, 721.) The “continuing
violations doctrine” is an exception to this rule that “comes into play when an
employee raises a claim based on conduct that occurred in part outside the
limitations period.” (Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, 812.)
A plaintiff must establish three facts to rely on this doctrine: “(1) the conduct
occurring within the limitations period is similar in kind to the conduct that
falls outside the period; (2) the conduct was reasonably frequent; and (3) it
had not yet acquired a degree of permanence.” (Dominguez, at p. 721.)
“ ‘Permanence’ means that an employer’s actions and statements make
clear to a reasonable employee that any further informal efforts to end the
discrimination will be futile.” (Wawrzenski v. United Airlines, Inc. (2024)
106 Cal.App.5th 663, 695.)
According to the SAC, Hill was subjected to the same types of age- and
disability-related comments by Urena both before and after the limitations
period and with some frequency. The defendants suggest that Urena’s
alleged conduct occurring before the limitations period began fell short of
harassment. But, again, resolving disputes of fact is not within the scope of
our review. In that same vein, we are not required to assess whether the
City’s alleged nonresponse to Hill’s attempt to end Urena’s behavior in the
summer of 2019 signaled that further informal attempts would be futile. (See
Birschtein v. New United Motor Manufacturing, Inc. (2001) 92 Cal.App.4th
994, 1006–1007 [“we need not, at [the summary judgment stage], attempt an
assessment of the adequacy of defendant’s response to plaintiff's complaints
regarding Bonillia’s conduct. The superior court will be free to evaluate this
and related issues in light of the evidence as it develops at trial”].) In short,
the allegations in Hill’s SAC preserved her ability to attempt to rely on the
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continuing violations doctrine to support her harassment claims. Whether
she can successfully do so remains to be seen.
3. Hill’s Common Law Tort Claims
As noted, the SAC includes common law tort claims of wrongful
discharge and wrongful failure to hire against the City that are based on the
same conduct underlying Hill’s FEHA discrimination and retaliation claims.
A plaintiff may pursue these statutory and common law avenues of relief
simultaneously (Rojo v. Kliger (1990) 52 Cal.3d 65, 82), and coextensive
FEHA and tort claims, such as Hill’s, rise or fall on their merits together (see
McVeigh v. Recology San Francisco (2013) 213 Cal.App.4th 443, 472
(McVeigh)). Having already concluded that Hill’s FEHA claims should have
survived the City’s demurrer, her tort claims must also be reinstated if the
law recognizes her right to bring them.
In Tameny v. Atlantic Richfield Company (1980) 27 Cal.3d 167
(Tameny), an employee was allegedly fired for refusing to follow an
employer’s directive to commit a crime. The Supreme Court held that on
these facts, the employee could bring an action of tortious wrongful discharge.
(Id. at pp. 169, 178.) The court reasoned that “an employer’s obligation to
refrain from discharging an employee who refuses to commit a criminal act
does not depend upon any express or implied ‘ “[promises] set forth in the
[employment] contract,” ’ ‘but rather reflects a duty imposed by law upon all
employers in order to implement the fundamental public policies embodied in
the state’s penal statutes.’ ” (Id. at p. 176.) “As such,” the court continued,
“a wrongful discharge suit exhibits the classic elements of a tort cause of
action.” (Ibid.) And so, “ ‘where the employer’s motivation for [a] discharge
contravenes some substantial public policy principle, then the employer may
be held liable to the employee for damages.’ ” (Id. at p. 177.)
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In accordance with Tameny, a plaintiff may prosecute a wrongful
discharge claim based on discrimination or retaliation because firing
an employee for these reasons violates the policies underlying FEHA.
(Stevenson v. Superior Court (1997) 16 Cal.4th 880, 897 [age discrimination];
City of Moorpark v. Superior Court (Dillon) (1998) 18 Cal.4th 1143, 1161
[disability discrimination]; McVeigh, supra, 213 Cal.App.4th at p. 472
[retaliation].) Accordingly, Hill may bring a wrongful discharge tort claim.
We reach a different conclusion as to Hill’s wrongful failure-to-hire
claim. “[T]he breach of an employment relationship is an indispensable
element of the tort” discussed in Tameny “because it serves factually as the
instrument of injury.” (Miklosy v. Regents of University of California (2008)
44 Cal.4th 876, 900.) Consequently, “[t]he employer . . . has not committed
a tort against [a] prospective employee because it owed no duty to that
person.” (Williams v. Sacramento River Cats Baseball Club, LLC (2019) 40
Cal.App.5th 280, 288.) Hill’s wrongful failure-to-hire claim is premised on
being a “deterred applicant” to whom the City owned no duty; thus, this claim
was properly dismissed. (Ibid., see also id. at pp. 287–288 [job applicant’s
theory of illegal failure to hire must be brought under FEHA].) Accepting the
facts underlying this alternative theory, we see no scenario in which Hill
could credibly allege she was anything other than a prospective employee at
that juncture; thus, the court’s order denying leave to amend her unlawful
failure to hire claim was appropriate.
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D. Urena’s Motion to Strike Allegations of Punitive Damages
For the benefit of the court on remand, we address Urena’s motion to
strike Hill’s claim for punitive damages.15 Subdivision (a) of Civil Code
section 3294 provides that a plaintiff “in an action for the breach of an
obligation not arising from contract” may recover punitive damages against a
defendant who “has been guilty of oppression, fraud, or malice.”16 The SAC
alleges that Hill may recover punitive damages because Urena’s alleged
harassing conduct met these requirements. (Weeks v. Baker & McKenzie
(1998) 63 Cal.App.4th 1128, 1147–1148 [§ 3294 “applies to actions brought
under FEHA”].) Urena moved to strike these allegations for being too
conclusory and for relying on conduct that fell short of these statutory
standards. As noted, the motion to strike was denied as moot because all of
Hill’s claims were dismissed without leave to amend. Having revived Hill’s
harassment claim against Urena, we turn to these parties’ respective
15 It is unnecessary for us to address other aspects of Urena’s motion to
strike. Some pertain to allegations concerning claims as to which the
demurrer was properly sustained. Others address allegations we have
already concluded are properly included in the SAC.
16 Oppression is “despicable conduct that subjects a person to cruel and
unjust hardship in conscious disregard of that person’s rights.” (Civ. Code,
§ 3294, subd. (c)(2).) Fraud means “an intentional misrepresentation, deceit,
or concealment of a material fact known to the defendant with the intention
on the part of the defendant of thereby depriving a person of property or legal
rights or otherwise causing injury.” (Id., subd. (c)(3).) And “ ‘[m]alice’ means
conduct which is intended by the defendant to cause injury to the plaintiff or
despicable conduct which is carried on by the defendant with a willful and
conscious disregard of the rights or safety of others.” (Id., subd. (c)(1).)
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arguments on appeal concerning the sufficiency of the punitive damage
allegations.17
A motion to strike a claim for punitive damages is akin to a demurrer
because it too “challenges the legal sufficiency of the complaint’s allegations.”
(Blakemore v. Superior Court (2005) 129 Cal.App.4th 36, 53.) Accordingly,
we “ ‘ “read allegations of a pleading subject to a motion to strike as a whole,
all parts in their context, and assume their truth.” ’ ” (Kaiser, supra, 203
Cal.App.4th at p. 704.) At minimum, a plaintiff must “set forth the elements
as stated in [Civil Code] section 3294,” as well as “specific factual allegations
showing that defendant’s conduct was oppressive, fraudulent, or malicious
to support a claim for punitive damages.” (Today’s IV, Inc. v. Los Angeles
County Metropolitan Transportation Authority (2022) 83 Cal.App.5th 1137,
1193.) Where, as here, the plaintiff alleges an intentional wrong, “a prayer
for exemplary damage may be supported by pleading that the wrong was
committed willfully or with a design to injure.” (G. D. Searle & Co. v.
Superior Court (1975) 49 Cal.App.3d 22, 29.)
The punitive damages allegations in the SAC satisfy this standard.
Hill’s pleading describes specific incidents of age- and disability-related
harassment by Urena and ties them to the statutory definitions of
oppression, fraud, and malice. Thus, the SAC “contain[s] sufficient
allegations of fact which if proven would sustain an award of punitive
damages.” (Monge v. Superior Court (1986) 176 Cal.App.3d 503, 512.)
To Urena’s points, it is not our role at this juncture to decide whether
17 We ordinarily decline to address matters the trial court did not reach.
We make an exception here because this issue is fully briefed and we would
review de novo the trial court’s ruling on this motion to strike. (Kaiser
Foundation Health Plan, Inc. v. Superior Court (2012) 203 Cal.App.4th 696,
704 (Kaiser).)
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her alleged conduct will be deemed egregious enough by the factfinder to
meet these statutory standards. (Ibid.) Hill has alleged intentional conduct
by Urena designed to deny her reinstatement to her prior job and to
discourage her from reapplying. Urena supposedly took these actions for an
improper purpose and by means of misstatements to Hill. Nothing more was
required of Hill at this stage of the proceedings to establish her right to
pursue these additional damages.
DISPOSITION
The judgment is reversed with directions to enter a new order
overruling defendants’ demurrer as to the first, second, fifth, sixth, seventh,
and eighth causes of action in Hill’s second amended complaint. Hill shall
recover her costs on appeal.
DATO, J.
WE CONCUR:
IRION, Acting P. J.
DO, J.
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