Ponciano v. Citrus Community College District CA2/5

Filed 5/22/23 Ponciano v. Citrus Community College District CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions

not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion

has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

RONALD L. PONCIANO, B316978

Plaintiff and Appellant, (Los Angeles County

Super. Ct.

v. No. 19PSCV00139)

CITRUS COMMUNITY COLLEGE

DISTRICT et al.,

Defendants and Respondents.

APPEAL from a judgment of the Superior Court of

Los Angeles County, Peter A. Hernandez, Judge. Affirmed.

Mahoney & Soll and Paul M. Mahoney for Plaintiff and

Appellant.

Walsh & Associates, Dennis J. Walsh and Arash Arjang for

Defendants and Respondents.

——————————

In this age discrimination action, plaintiff Ronald L.

Ponciano appeals from a judgment following orders granting

demurrers and judgment on the pleadings in favor of employer

Citrus Community College District (District), and District

employees Geraldine Perri and Robert Sammis. Ponciano

contends: (1) he was not required to exhaust administrative

remedies under the California Fair Employment and Housing Act

(FEHA; Gov. Code, § 12900 et seq.) to pursue common law

remedies for employment discrimination; (2) equitable principles

excused his failure to obtain a right-to-sue letter from the

Department of Fair Employment and Housing (DFEH);1 (3) if a

right-to-sue letter were required, leave to amend should be

granted; and (4) demurrers should not have been sustained to his

causes of action for intentional and negligent infliction of

emotional distress.

We conclude that Ponciano has not identified any common

law cause of action to remedy discrimination or harassment that

he alleged in the complaint. His failure to exhaust

administrative remedies was not excused by his government

claim notice or any other circumstance. The facts alleged do not

state a claim for intentional or negligent infliction of emotional

distress, and Ponciano has not met his burden on appeal to

explain how he could amend the complaint to state a cause of

action. Therefore, we affirm.

1 Effective

June 30, 2022, after the events in this case, the

agency’s name changed to the Civil Rights Department. (Gov.

Code, § 12901.)

2

FACTS2

Ponciano was 59 years old when he filed the operative

complaint in this case. He was hired by the District in 2005 and

has worked as the head coach of the football team for 12 years.

Perri and Sammis are also employed by the District.

The District denied several of Ponciano’s requests on behalf

of the football program. Ponciano requested the use of air

conditioning for the men’s football locker room on several

occasions. He notified his superiors on several occasions that the

field turf was in poor condition and likely to cause non-contact

injuries to his players. He requested practices be held at night,

something commonly done at other schools, so that the team did

not have to practice in extreme heat. The field turf was replaced,

but his requests for air conditioning, night practice, and

scheduling changes were repeatedly denied, jeopardizing the

safety of his players.

The football program was not provided equal treatment and

benefits compared to other sports programs at the District as

follows: (1) the participation numbers and the amount of money

provided to each athlete were misrepresented in an official

report; (2) food comparisons and per diem were lower than other

sports programs; (3) football did not receive new uniforms for

2 In accordance with the standard of review on appeal from

an order sustaining a demurrer or granting judgment on the

pleadings, we deem all properly pleaded, material facts to be

true, but do not assume the truth of contentions, deductions, or

conclusions of law. (Stearn v. County of San Bernardino (2009)

170 Cal.App.4th 434, 439–440 (Stearn); Adams v. Bank of

America, N.A. (2020) 51 Cal.App.5th 666, 670 (Adams).)

3

12 seasons, while other sports received new uniforms annually;

(4) assistant coaches in other sports were allowed to teach extra

classes for extra pay; (5) the pay increase for the head football

coach was not equal to the pay increases for head coaches of other

sports, even though Ponciano had more experience and education

than any other coach in the District; (6) other teams got “[s]pirit

[p]acks” with gear, such as back packs, uniforms, and socks,

which the football program did not get; (7) other sports received

money from the rental of their field, court, or pool, but not the

football program; (8) there were signs around campus for other

student athlete sports, but not football; and (9) some sports

received four times the amount of funding per student athlete

compared to football.

Ponciano learned that he was underpaid by the District for

years. Moreover, other coaches in the department, some of whom

were younger and less qualified, received higher compensation

than Ponciano. The actions that reduced Ponciano’s pay

included: not counting units that would enhance his pay, not

counting years of experience which would enhance his pay,

changing Ponciano’s job title to diminish his earnings, failing to

promote him because of the change in job title, and allowing

threats, intimidation, retribution, retaliation, and nepotism, all of

which caused Ponciano physical and emotional distress.

Ponciano was constantly questioned about how long he planned

to coach, with the implication that he should quit due to his age.

The defendants were afraid to fire him because he had worked for

the District for so long.

The defendants spread rumors that Ponciano was going to

be fired for bringing the safety issues and compensation issues to

light. They also published false statements alleging that

4

Ponciano conducted his practices in a negligent fashion and

caused his players to suffer from heat stroke. A trainer employed

by the District told several people at a high school football game

being played at the District, “Ron Ponciano is getting fired.” As a

result, many people and players contacted Ponciano to ask if he

was getting fired. These statements interfered with recruiting.

Ponciano contacted the Title IX coordinator at the District

about the rumor that he would be fired, as well as harassment

and discrimination that he was experiencing by the coordinator’s

superior, Sammis, but the coordinator did not contact him to

provide assistance. Ponciano’s complaints to Perri and Sammis

about Title IX and Education Code violations were ignored.

An athletic secretary began to not clear athletes playing

football who were coached by Ponciano, although she had told

Ponciano that the players were cleared. The reimbursement

rules for classes discriminated against athletes, so Ponciano lost

several students from his program. A broken copy machine that

Ponciano needed to coach was not fixed for the entire season. A

mid-season practice field was taken away from Ponciano’s

program without warning before a conference championship

game. Ponciano was forced to stripe the entire softball field for

his team to practice. Women’s soccer received $8 per meal per

athlete and men’s soccer received $10 to $15 per meal per athlete,

but football received $2.30 per meal per athlete. In addition, the

website Transparent California reported a higher salary for him

than his W-2 showed for the same year.

5

PROCEDURAL BACKGROUND

Complaint Filed

On February 7, 2019, Ponciano filed a complaint against

the District, Perri, and Sammis for age discrimination, hostile

work environment, and negligent and intentional infliction of

emotional distress. He filed an amended complaint, and the

defendants filed a demurrer. On August 7, 2019, the trial court

overruled the demurrer as to age discrimination, but sustained it

as to the remaining causes of action with leave to amend.

On September 11, 2019, Ponciano filed a second amended

complaint alleging the same four causes of action. Defendants

filed a demurrer to the causes of action other than age

discrimination. On March 11, 2020, the trial court sustained the

demurrer with leave to amend.

Operative Third Amended Complaint

On April 6, 2020, Ponciano filed the operative third

amended complaint for age discrimination, hostile work

environment, and negligent and intentional infliction of

emotional distress. In addition to the facts above, the cause of

action for age discrimination alleged that Ponciano’s pay had

been decreased due to age discrimination and a hostile work

environment. Less qualified employees had been paid more

money and treated more fairly.

The cause of action for hostile work environment

additionally alleged that due to Ponciano’s age and in order to

make Ponciano’s environment intolerable and force him to resign,

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the defendants denied Ponciano’s requests on behalf of the

football team and provided unequal treatment to the football

program compared to other sports programs in violation of

Title IX. The discriminatory actions that caused Ponciano to be

underpaid were motivated by a desire to force him to resign

because of his age.

The rumor spread by the District, through Sammis and

Perri, that Ponciano would be fired, the statement that he

conducted his practices negligently, and the trainer’s comment

that he would be fired were motivated by age discrimination and

the desire to create a hostile work environment to force Ponciano

to quit. They retaliated against him due to his complaints and

his age. All of the statements and actions were ratified by Perri

and Sammis. The defendants were liable under Government

Code sections 815.2, subdivision (a), and 820, subdivision (a). By

ignoring Ponciano’s complaints about Title IX and Education

Code violations, the defendants engaged in a course of conduct to

force Ponciano to resign.

Discriminatory reimbursement rules for classes, failing to

fix the copy machine, removing a practice field, and paying less

per meal than other sports received were acts of discrimination

against Ponciano and his players due to Ponciano’s age which

were intended to force Ponciano to resign, constituted retaliation,

and created a hostile work environment. As a result of all the

above actions, Ponciano suffered several physical and emotional

distress, as well as economic damage. The actions were

motivated by age discrimination because the defendants wanted

Ponciano to resign.

With respect to the causes of action for intentional and

negligent infliction of emotional distress, he alleged the

7

defendants intentionally or negligently harassed and

discriminated against him in handling his workplace complaints,

in disseminating false information that was defamatory about his

job performance, and in retaliation for the complaints that he

stated. The defendants engaged in extreme conduct to force

Ponciano to resign, because of his age, which should not be

tolerated in civilized society. They owed him a duty of care to

refrain from such activity, which they breached and caused him

to suffer severe emotional distress.

Demurrer to Operative Complaint and Subsequent

Proceedings

The defendants filed a demurrer to the causes of action for

intentional and negligent infliction of emotional distress in the

operative third amended complaint. The defendants argued that

the complaint failed to state facts to support either cause of

action. In addition, as public employees, Perri and Sammis were

immune from liability under Government Code section 820.2, and

the District was immune from liability under Government Code

section 815.2. Ponciano opposed the demurrer. On

September 17, 2020, the trial court sustained the demurrer

without leave to amend as to the causes of action for intentional

and negligent infliction of emotional distress. The trial court also

granted a motion by the defendants to strike punitive damages

allegation.

The defendants filed a motion for judgment on the

pleadings as to the remaining causes of action for age

discrimination and hostile work environment on the ground that

8

Ponciano failed to exhaust his administrative remedies by filing a

complaint with the DFEH and obtaining a right-to-sue letter.

Ponciano opposed the motion for judgment on the pleadings

on the grounds that he had filed an appropriate tort claim with

the human resources office of the District, and his causes of

action for age discrimination and hostile work environment were

common law claims that were not preempted by the FEHA. He

attached a notice of claim that he sent the District on

November 9, 2018. The claim notified the District of his

allegations that he had been discriminated against in terms of his

pay, causing him physical and emotional distress. He was

subjected to a hostile work environment and false rumors about

him, causing damages. The notice did not allege discrimination

or harassment based on Ponciano’s age. The notice also did not

allege any conduct by Perri or Sammis against Ponciano. The

defendant filed a reply.

In a supplemental opposition, Ponciano argued that the

FEHA was not the exclusive remedy for employment

discrimination. In addition, he argued that equitable principles

should bar the application of the administrative exhaustion rule.

Lastly, he requested leave to amend, but did not state how he

could amend the complaint. The defendants filed a supplemental

reply.

The trial court took the matter under submission on

July 19, 2021. On July 21, 2021, the court granted the motion for

judgment on the pleadings. On August 16, 2021, the court

entered judgment against Ponciano in favor of the defendants.

Ponciano filed a timely notice of appeal.

9

DISCUSSION

Standard of Review

“On appeal from an order of dismissal after an order

sustaining a demurrer, the standard of review is de novo: we

exercise our independent judgment about whether the complaint

states a cause of action as a matter of law. [Citation.] First, we

give the complaint a reasonable interpretation, reading it as a

whole and its parts in their context. Next, we treat the demurrer

as admitting all material facts properly pleaded. Then we

determine whether the complaint states facts sufficient to

constitute a cause of action.” (Stearn, supra, 170 Cal.App.4th at

p. 439.)

“We do not, however, assume the truth of contentions,

deductions, or conclusions of law. [Citation.] If a complaint is

insufficient on any ground specified in a demurrer, the order

sustaining the demurrer must be upheld even though the

particular ground upon which the court sustained it may be

untenable.” (Stearn, supra, 170 Cal.App.4th at p. 440.)

“A judgment on the pleadings in favor of the defendant is

appropriate when the complaint fails to allege facts sufficient to

state a cause of action. (Code Civ. Proc., § 438, subd. (c)(3)(B)(ii).)

A motion for judgment on the pleadings is equivalent to a

demurrer and is governed by the same de novo standard of

review. [Citation.] All properly pleaded, material facts are

deemed true, but not contentions, deductions, or conclusions of

fact or law.” (Adams, supra, 51 Cal.App.5th at p. 670.)

10

Common Law Claims

Ponciano contends that he may pursue common law causes

of action to remedy age discrimination and a hostile work

environment without exhausting administrative remedies under

the FEHA. This is correct, but he has failed to identify a common

law cause of action stated by the allegations of the complaint.

The FEHA declares discrimination on specified grounds,

including age, is against public policy and an unlawful

employment practice. (Stevenson v. Superior Court (1997)

16 Cal.4th 880, 890–891 (Stevenson).) An aggrieved person may

file a complaint with the DFEH. (Id. at p. 891.) If the DFEH

decides not to prosecute the case or fails to issue an accusation

within a certain number of days, the DFEH must give the

complainant a right-to-sue letter. (Ibid.) Only after receiving a

right-to-sue letter may the aggrieved person file a civil action for

remedies under the FEHA. (Ibid.)

The remedies available under the FEHA supplement other

state law remedies for discrimination, including an employee’s

common law claims for injuries from employment discrimination.

(Stevenson, supra, 16 Cal.4th at pp. 891–892.) Plaintiffs do not

need to exhaust the FEHA administrative process to seek relief

for injuries arising from employment discrimination under other

causes of action that are otherwise available. (See, e.g., Rojo v.

Kliger (1990) 52 Cal.3d 65, 88 (Rojo) [employee was not required

to exhaust FEHA administrative process before bringing action

for wrongful discharge in violation of public policy]; Stevenson, at

p. 903 [exhaustion of administrative remedies not required to

bring claim for wrongful discharge in violation of public policy

against age discrimination].)

11

The “common law of this state provides any number of

remedial theories to compensate for injuries ‘relating to

discrimination’ (§ 12993, subd. (a)).” (Rojo, supra, 52 Cal.3d at

p. 74.) Employment discrimination cases “ ‘involve several causes

of action arising from the same set of facts. A responsible

attorney handling an employment discrimination case must plead

a variety of statutory, tort and contract causes of action in order

to fully protect the interests of his or her client. [Fn. omitted.]’

[Citation.] Although the common law theories do not per se

‘relate to discrimination,’ they are nonetheless a standard part of

a plaintiff’s arsenal in a discrimination case.” (Ibid., italics

omitted.) Conduct which entitles an employee to damages for

employment discrimination under the FEHA may also cause

injury outside the bounds of statutory protection. (Id. at p. 81.)

For example, an employer’s discriminatory actions might

constitute assault and battery, wrongful discharge, or outrageous

conduct under a theory of intentional infliction of emotional

distress. (Ibid.; Medix Ambulance Service, Inc. v. Superior Court

(2002) 97 Cal.App.4th 109, 118.)

In this case, however, Ponciano has not identified any

common law remedy that applies to the causes of action in the

complaint labeled “age discrimination in the workplace” and

“hostile work environment.” (Capitalization omitted.) Stevenson,

supra, 16 Cal.4th 880, which is the sole case that he cites on

appeal, concerned a cause of action for wrongful discharge in

violation of public policy. Ponciano clearly states he is not

pursuing a claim for wrongful discharge, as he was still working

for the District when he filed the operative complaint. Ponciano

has not identified any other statutory or common law claims

stated by the allegations of the complaint.

12

Equitable Relief

Ponciano contends that the trial court should have excused

him from compliance with the administrative exhaustion doctrine

based on equitable principles, because obtaining a right-to-sue

letter was a mere formality and his notice to the District was the

functional equivalent of filing a complaint with the DFEH. We

disagree.

The failure to exhaust administrative remedies by

obtaining a right-to-sue letter is a jurisdictional defect. (Martin

v. Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th 1718,

1724.) Exhaustion of administrative remedies before the DFEH

is a jurisdictional prerequisite to filing a FEHA claim. (Ibid.)

Ponciano’s contention that his government tort claim

satisfied FEHA requirements and exhausted administrative

remedies is incorrect. “The purpose of FEHA’s administrative

exhaustion requirement is to ensure DFEH is provided the

opportunity to resolve disputes and eliminate unlawful

employment practices through conciliation. (Rojo[, supra,]

52 Cal.3d [at p.] 83 [‘the exhaustion requirement serves the

important policy interests embodied in the act of resolving

disputes and eliminating unlawful employment practices by

conciliation [citation], as well as the salutory goals of easing the

burden on the court system, maximizing the use of

administrative agency expertise and capability to order and

monitor corrective measures, and providing a more economical

and less formal means of resolving the dispute [citation]’].)”

(Wills v. Superior Court (2011) 195 Cal.App.4th 143, 156.) For

example, the names and addresses of the defendants who

allegedly discriminated against the plaintiff must have been

13

named in the caption or the body of the DFEH charge in order to

bring a civil lawsuit against them under the FEHA. (Cole v.

Antelope Valley Union High School Dist. (1996) 47 Cal.App.4th

1505, 1513–1515.)

The government claim notice that Ponciano provided to the

District did not satisfy the requirement to exhaust administrative

remedies by filing a complaint with the DFEH. The notice did

not mention age discrimination, did not allege any conduct by

Perri or Sammis, and was not provided to the DFEH to allow the

administrative agency to investigate the allegations. The trial

court properly concluded the government claim notice was not a

substitute for a complaint filed with the DFEH, and Ponciano

failed to exhaust his administrative remedies by obtaining a

right-to-sue letter.

Ponciano also asserts that the trial court should not have

applied the administrative exhaustion doctrine because the

defendants did not raise the issue earlier and have not produced

witnesses for deposition. The defendants conducted discovery to

discern whether a DFEH complaint had been filed and there is no

evidence of undue delay, but in any event, the administrative

exhaustion doctrine is jurisdictional. With respect to depositions,

other statutes provide measures to enforce the discovery

obligations.

Leave to Amend

Ponciano contends that the trial court should have given

him leave to amend to allege a claim under the Education Code.

“When a demurrer is sustained without leave to amend, we

decide whether there is a reasonable possibility that the defect

14

can be cured by amendment. [Citation.] ‘ “[I]f it can be, the trial

court has abused its discretion and we reverse; if not, there has

been no abuse of discretion and we affirm.” ’

[Citation.] . . . [Citations.] Plaintiff has the burden to show there

is a reasonable possibility the complaint’s defects can be cured by

amendment.” (Adams, supra, 51 Cal.App.5th at pp. 670–671.) On

appeal, Ponciano failed to meet his burden to explain how he

could amend the complaint to state a claim for recovery as an

employee of the District under the Education Code. Ponciano had

four opportunities to state a viable cause of action. No abuse of

discretion has been shown.

Intentional Infliction of Emotional Distress

Ponciano contends the third amended complaint states a

cause of action for intentional infliction of emotional distress. We

disagree.

“The elements of the tort of intentional infliction of

emotional distress are: ‘ “(1) extreme and outrageous conduct by

the defendant with the intention of causing, or reckless disregard

of the probability of causing, emotional distress; (2) the plaintiff’s

suffering severe or extreme emotional distress; and (3) actual and

proximate causation of the emotional distress by the defendant’s

outrageous conduct.” ’ ” (Christensen v. Superior Court (1991)

54 Cal.3d 868, 903.) To be considered outrageous, the conduct

must be “ ‘so extreme as to exceed all bounds of that usually

tolerated in a civilized community.’ ” (Ibid.) “Liability for

intentional infliction of emotional distress ‘ “does not extend to

mere insults, indignities, threats, annoyances, petty oppressions,

15

or other trivialities.” ’ ” (Hughes v. Pair (2009) 46 Cal.4th 1035,

1051.)

“Managing personnel is not outrageous conduct beyond the

bounds of human decency, but rather conduct essential to the

welfare and prosperity of society. A simple pleading of personnel

management activity is insufficient to support a claim of

intentional infliction of emotional distress, even if improper

motivation is alleged. If personnel management decisions are

improperly motivated, the remedy is a suit against the employer

for discrimination.” (Janken v. GM Hughes Electronics (1996)

46 Cal.App.4th 55, 80; see Cornell v. Berkeley Tennis Club (2017)

18 Cal.App.5th 908, 946.)

None of the actions alleged in the complaint constituted

extreme and outrageous conduct. The District’s decisions about

how to allocate resources to various sports programs, such as the

use of air conditioning, compensation for food, and decisions

about schedule changes, were standard program and personnel

management decisions that did not amount to extreme and

outrageous conduct. The District’s calculation of Ponciano’s

salary and decisions about salary increases were also routine

personnel management decisions that did not constitute

outrageous conduct. To the extent that the District provided

Ponciano with a negative performance evaluation, discussed

termination of his employment, or failed to address his

employment-related complaints, these were also personnel

management decisions that did not rise to the level of extreme

and outrageous conduct. The actions alleged in the complaint,

regardless of the motivation behind them were common

personnel management decisions that did not constitute

outrageous conduct beyond the limits of human decency and do

16

not state a cause of action for intentional infliction of emotional

distress in the employment context. The trial court properly

sustained the demurrer to the cause of action for intentional

infliction of emotional distress.

Negligent Infliction of Emotional Distress

Ponciano contends the third amended complaint states a

cause of action for intentional infliction of emotional distress. We

disagree.

Negligent infliction of emotional distress is simply a

negligence claim, not an independent tort. (Delfino v. Agilent

Technologies, Inc. (2006) 145 Cal.App.4th 790, 818.) “ ‘The

traditional elements of duty, breach of duty, causation, and

damages apply. [¶] Whether a defendant owes a duty of care is a

question of law. Its existence depends upon the foreseeability of

the risk and a weighing of policy considerations for and against

imposition of liability.’ ” (Burgess v. Superior Court (1992)

2 Cal.4th 1064, 1072.)

An employer’s supervisory actions are inherently

intentional and not the basis for a negligence claim. (Semore v.

Pool (1990) 217 Cal.App.3d 1087, 1105.)

Ponciano has not alleged a duty owed to him that was

breached, causing him to suffer serious emotional distress.

Ponciano contends the respondents were negligent in their

handling of his workplace complaints, dissemination of

information about his job performance, and retaliation for his

complaints. Even assuming the District had a duty to respond to

Ponciano’s workplace complaints, there is no allegation that

failing to respond to his complaints was a substantial factor in

17

causing him to suffer serious emotional distress. The only

allegation concerning dissemination of information about

Ponciano’s job performance was a comment made by a trainer to

parents at a high school game, but there is no allegation that the

trainer had a duty to Ponciano to refrain from discussion of his

job performance or employment status. It is not clear which acts

Ponciano alleges were taken in retaliation for making complaints,

but all of the conduct discussed in connection with intentional

infliction of emotional distress were common personnel and

program management decisions. Supervisory acts by the District

were intentional conduct and are not the basis for a negligence

claim. In sum, Ponciano has not shown on appeal that the trial

court erred by sustaining the demurrer to the cause of action for

negligent infliction of emotional distress. (See Baldwin v. AAA

Northern California, Nevada & Utah Ins. Exchange (2016)

1 Cal.App.5th 545, 549 [appellant has burden to demonstrate

trial court erred].)

18

DISPOSITION

The judgment is affirmed. Respondents Citrus Community

College District, Geraldine Perri, and Robert Sammis are

awarded their costs on appeal.

NOT TO BE PUBLISHED.

MOOR, J.

We concur:

RUBIN, P. J.

BAKER, J.

19