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Date: 05-16-2019

Case Style: Aurora Le Mere v. Los Angeles Unified School District

Case Number: B281843

Judge: Stratton, J.

Court: California Court of Appeals Second Appellate District, Division Eight on appeal from the Superior Court, County of Los Angeles

Plaintiff's Attorney: Douglas B. Spoors

Defendant's Attorney: Anthony J. Bejarano

Description: Appellant Aurora Le Mere was a teacher employed by the
Los Angeles Unified School District (LAUSD) for 13 years. In
2015, she sued LAUSD and six of its employees, alleging a
pattern of harassment, discrimination and retaliation against her
because she engaged in protected activities. She appeals from a
judgment of dismissal entered after the trial court sustained
LAUSD’s demurrer to her Second Amended Complaint (SAC)
without leave to amend. She contends the trial court abused its
discretion in dismissing a cause of action she added to the SAC
without first obtaining leave of court to do so. She further
contends the trial court erred in finding she had not alleged
sufficient facts to establish a causal link between the retaliatory
animus and the adverse action. Finally, she contends that the
government claim she filed satisfied the requirements of the
Government Claims Act, section 810 et seq. We affirm the
judgment of dismissal.
PROCEDURAL AND FACTUAL BACKGROUND
In 2002, appellant began working as a teacher for LAUSD.
Between July 2006 and February of 2014, appellant filed several
claims and complaints arising from her employment. She filed
two worker’s compensation actions for injuries sustained when
students attacked her. She had surgery for a shoulder injury,
was hospitalized for cardiac problems, and received a diagnosis of
post-traumatic stress disorder. She filed at least two
administrative complaints alleging LAUSD violated provisions of
the Education Code. One of the complaints prompted an OSHA
investigation. In 2007 she filed a civil action against LAUSD and
two individuals for discrimination, retaliation and civil rights
violations. In 2014, appellant filed a complaint with the
3
California Department of Fair Employment and Housing
(DFEH), subsequently receiving a “right to sue letter.”
On February 10, 2015, appellant filed the present action
against LAUSD and six individual defendants. She alleged
generally: “From and after the dates that the Workers’
Compensation cases and the civil action were filed, and
subsequently settled, and subsequent to the [Education Code]
Complaints, Plaintiff has endured a pattern of continued
harassment, intimidation, discrimination, hostility, and
retaliation as set forth herein.”
Appellant initially asserted five causes of action against
LAUSD and three causes of action against the individual
defendants. All defendants demurred and in response, on
September 30, 2015, appellant filed her First Amended
Complaint (FAC) asserting the same five causes of action against
LAUSD and the same three against the individual defendants.
Another round of demurrers ensued.
On February 16, 2016, plaintiff filed a claim under the
Government Claim Act.
In March 2016, the trial court granted LAUSD’s demurrer
to the second, third and fourth causes of action in the FAC with
leave to amend and sustained LAUSD’s demurrer to the first and
fifth causes of action without leave to amend. The court
sustained the individual defendants’ demurrers without leave to
amend. The individual defendants are not parties to this appeal.
On April 14, 2016, appellant filed the SAC, which alleges
three causes of action against LAUSD: (1) harassment in
violation of Education Code sections 44110 through 44114;
(2) violation of Labor Code section 1102.5; and (3) violation of
Labor Code section 226.7. The first cause of action for
4
harassment was newly added. Notably appellant did not reallege
the second cause of action from the FAC, although she had
leave to do so.
LAUSD again demurred. On November 8, 2016, the trial
court sustained the demurrer without leave to amend. The
minute order for the hearing on the demurrer states: “Demurrer
is granted without leave to amend as to all three causes of action.
[¶] As to the First Cause of Action, Plaintiff did not seek leave to
add a whole new cause of action. [¶] As to the Second Cause of
Action, Plaintiff failed to file the claim prior to commencement of
this action.”1 As we discuss below, the trial court explained these
rulings in more detail during the hearing on the demurrer. A
judgment of dismissal was entered on March 27, 2017.
This appeal followed.
DISCUSSION
A. The Demurrer to the Cause of Action Entitled “Retaliation in
Violation of Government Code Section 12940(h)” was Properly
Sustained.
The FAC includes a cause of action entitled “Retaliation in
Violation of Government Code § 12940(h).” The court sustained
the demurrer to this cause of action with leave to amend.
Appellant did not amend. Instead she contends the allegations
were sufficient, without more, to state the cause of action against
LAUSD.

1 At the hearing appellant represented to the court that she
intended to dismiss the third cause of action. The trial court then
sustained the demurrer to the third cause of action without leave
to amend.
5
The FAC alleges that in 2007, appellant filed a civil action
against LAUSD and two individuals and “[f]rom and after the
dates that the civil action was filed, and subsequently settled,
Plaintiff has endured a pattern of continued harassment,
intimidation, discrimination, hostility, and retaliation as set for
herein, all in violation of California Government Code § 12940(h).
Such conduct includes, but is not limited to, the following as
herein alleged.” The next two paragraphs refer to events which
occurred in 2006, before the civil lawsuit was filed. The next
event alleged did not occur until June 2009, which is at least 22
months after the August 2007 date given for the lawsuit. Dozens
of paragraphs then allege more harassing conduct, the last of
which occurred in the fall of 2014.
An order sustaining a demurrer with leave to amend may
be reviewed in an appeal from the ultimate order of dismissal.
(Leader v. Health Industries of America, Inc. (2001)
89 Cal.App.4th 603, 611.) Generally, in reviewing the sufficiency
of a complaint against a demurrer, “we accept as true all material
facts properly pleaded, but not contentions, deductions or
conclusions of fact or law. [Citation.] When, as here, ‘a plaintiff
is given the opportunity to amend his complaint and elects not to
do so, strict construction of the complaint is required and it must
be presumed that the plaintiff has stated as strong a case as he
can.’ [Citations.] In these circumstances, we will affirm the
judgment if the complaint is objectionable on any ground raised
in the demurrer. [Citations.]” (Drum v. San Fernando Valley
Bar Assn. (2010) 182 Cal.App.4th 247, 251 (Drum).)
Appellant has not provided a reporter’s transcript, audio
transcription, or settled statement of the hearing on the
demurrers to the FAC. The notice of ruling on the demurrer
6
simply states that it is granted with leave to amend. We
therefore look to the grounds raised in the demurrer. (See Drum,
supra, 182 Cal.App.4th at p. 251.)
The elements of a claim for retaliation in violation of
Government Code section 12940, subdivision (h), are: “(1) the
employee’s engagement in a protected activity . . . ; (2) retaliatory
animus on the part of the employer; (3) an adverse action by the
employer; (4) a causal link between the retaliatory animus and
the adverse action; (5) damages; and (6) causation.” (Mamou v.
Trendwest Resorts, Inc. (2008) 165 Cal.App.4th 686, 713.)
LAUSD demurred on the ground the FAC included no facts
satisfying the second, third and fourth elements.
LAUSD argued the FAC does not allege any of the named
defendants or non-party actors held any retaliatory animus
toward plaintiff or even knew of the 2007 lawsuit. LAUSD also
argued even if retaliatory animus were present there are no
allegations showing a causal connection between the animus, the
protected activity, and the retaliatory conduct.
LAUSD is correct. The FAC does not allege the named
individual defendants engaged in any retaliatory conduct. It does
not even allege the named individual defendants were LAUSD
employees. While some individuals at LAUSD must have known
about the 2007 lawsuit, the FAC does not allege the individual
defendants or non-party actors knew about the lawsuit or were
directed in their activities by others at LAUSD who had
knowledge.
Notwithstanding the absence of direct evidence of
retaliatory animus, close temporal proximity between a plaintiff’s
protected activity and the alleged retaliatory conduct against the
plaintiff has been found sufficient to support a prima facie case of
7
causation. (See Flait v. North American Watch Corp. (1992)
3 Cal.App.4th 467, 478.) Several federal cases hold that intervals
of more than a few months were too long to support causation.
(See, e.g., Cornwell v. Electra Cent. Credit Union (9th Cir. 2006)
439 F.3d 1018, 1036 [seven month gap too long to support
causation].) Here, almost two years elapsed between the 2007
lawsuit and the first alleged instances of retaliation in 2009. A
gap of two years is not sufficient as a matter of law to support an
inference of causation.
In response to the demurrer, appellant did not contend she
could allege retaliatory acts closer in time to the 2007 lawsuit.
Instead, she advanced what can only be characterized as a new
theory of retaliation. She focused on an LAUSD notice of intent
to suspend her which she received on August 17, 2015. She
contends “the allegation concerning the August 17, 2015 notice of
suspension overcomes defendants’ arguments concerning time
and adverse employment action. This is true especially in light of
events that occurred after the First Amended Complaint was
filed.” According to her opposition to the demurrer and her reply
brief on appeal, it appears appellant contends the retaliation she
experienced was not for the 2007 lawsuit; it was, instead, for this
lawsuit filed in 2015.
This new theory of retaliation is not alleged in the FAC.
The cause of action expressly alleges defendants retaliated
because appellant filed the 2007 lawsuit. Incorporating by
reference into this cause of action other general allegations about
being suspended on pretextual grounds in May and August 2015
does not change the specific core allegations of the cause of
action. The demurrer was correctly sustained to the cause of
action as pled based on the 2007 lawsuit.
8
Although appellant obtained leave to amend this cause of
action in the FAC, she did not do so. We must presume the FAC
as pled is the strongest case appellant can make. It is not
sufficient and we therefore affirm the trial court’s ruling.
B. The Trial Court Did Not Abuse Its Discretion in Denying
Leave to Add or Amend the Cause of Action Alleged for the
First Time in the SAC.
Appellant’s first cause of action in the SAC is entitled
“Harassment in Violation of Education Code Sections §§ 44110–
44114.” At the hearing on the demurrer, the trial court indicated
it found this cause of action defective because it did not allege a
complaint was lodged with local law enforcement, a prerequisite
to such a claim. The trial court’s minute order for the hearing
states the demurrer to this cause of action was sustained because
“Plaintiff did not seek leave to add a whole new cause of action.”
Appellant acknowledges this is a new cause of action, but
points out that in her opposition to the demurrer to the FAC, she
requested permission to add a cause of action for violation of
Education Code section 44113, subdivision (a). First, she
contends the trial court did not address this request other than to
say that leave to amend was granted. The court granted plaintiff
leave to amend three existing causes of action; we do not
interpret the ruling as granting leave to add new causes of action.
Second, appellant contends the trial court should have
permitted her to add this cause of action and should not have
dismissed it on a “technicality.” “[E]ven if a good amendment is
proposed in proper form, unwarranted delay in presenting it
may—of itself—be a valid reason for denial. [Citations.] Thus,
appellate courts are less likely to find an abuse of discretion
where, for example, the proposed amendment is offered after long
9
unexplained delay . . . or where there is a lack of
diligence . . . . [Citation.]” (McCoy v. Gustafson (2009)
180 Cal.App.4th 56, 102, internal quotation marks omitted.)
The SAC was filed 14 months after the original complaint
and appellant offered no explanation for her delay in asserting
this new cause of action. The harassing conduct alleged in
support of this claim began in 2013, well before this action was
filed. Further, the new cause of action was not properly pled. As
the trial court pointed out, the cause of action was defective
because it did not allege a complaint had been lodged with local
law enforcement, a prerequisite to such a claim. Appellant’s
counsel replied, “My client did attempt to file a complaint with
the L.A. Unified School District’s police . . . [b]ut the sergeant
refused to take the complaint.” Counsel represented: “[W]e could
easily allege that and, you know, when I looked at the statute, it
seemed like . . . that would be sufficient for that element.” The
trial court then asked what had prevented plaintiff from alleging
this in the original complaint. Counsel replied, “Nothing, Your
Honor.”
Here, there was an unexplained delay of 14 months in
raising the new cause of action. We find the trial court did not
abuse its discretion in denying leave to amend to add the claim.
C. Failure to Comply with the Government Claims Act Bars the
Cause of Action Alleging Violations of Labor Code Section
1102.5.
Plaintiff’s second cause of action in the SAC alleges
violations of Labor Code section 1102.5. This was appellant’s
third attempt to plead this cause of action. The trial court
sustained the demurrer because appellant “failed to file the
[government] claim prior to commencement of [the] action.” At
10
the hearing, the court explained: “This is the third attempt to try
to get this right and plaintiff has simply failed to properly
make . . . that allegation that the tort claim act was properly
complied with or substantially complied with; and the attempt
that is made to plead around the requirements or plead
substantial [compliance with the] requirements by filing a claim
after the pleading or initial complaint was filed failed.”
“ ‘The Government Claims Act (§ 810 et seq.) “establishes
certain conditions precedent to the filing of a lawsuit against a
public entity. As relevant here, a plaintiff must timely file a
claim for money or damages with the public entity. (§ 911.2.) The
failure to do so bars the plaintiff from bringing suit against that
entity. (§ 945.4.)” [Citation.]’ ” (J.J. v. County of San Diego
(2014) 223 Cal.App.4th 1214, 1219.)
“ ‘Claims for personal injury must be presented not later
than six months after the accrual of the cause of action . . . .
(§ 911.2, subd. (a).) Timely claim presentation is not merely a
procedural requirement, but is a condition precedent to the
claimant’s ability to maintain an action against the public entity.
[Citation.] “Only after the public entity’s board has acted upon or
is deemed to have rejected the claim may the injured person
bring a lawsuit alleging a cause of action in tort against the
public entity.” [Citation.]’ ” (J.J. v. County of San Diego, supra,
223 Cal.App.4th at p. 1219.) “ ‘The failure to timely present a
claim to the public entity bars the claimant from filing a lawsuit
against that public entity. [Citation.]’ ” (Ibid.)
Significantly, if the injured party fails to file a timely claim,
a written application may be made to the public entity for leave
to present such claim. (Gov. Code, § 911.4, subd. (a).) If the
public entity denies the application, Government Code section
11
946.6 authorizes the injured party to petition the court for relief
from the claim requirements. (Munoz v. State of California
(1995) 33 Cal.App.4th 1767, 1777.)
“ ‘Moreover, because the purpose of the claims is not “to
prevent surprise [but rather] is 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 . . . [citations][,] . . . [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.” [Citation.]’
[Citation.]” (J.J. v. County of San Diego, supra, 223 Cal.App.4th
at p. 1219.)
The initial complaint and the FAC do not allege compliance
with the Government Claims Act. The SAC alleges a government
claim was filed with LAUSD on February 16, 2016. This was one
year after appellant filed the original complaint in this action and
several months after she filed the FAC.
In opposition to the demurrer, appellant argued there was
a “problem with it requiring a government tort’s claim to be
alleged when the harassment doesn’t occur until after the
complaint is filed.” It is difficult to see the problem here. If no
misconduct occurred before a lawsuit was filed, there would be no
basis for a lawsuit. In this case, appellant named LAUSD in her
original complaint and alleged numerous incidents of
harassment, retaliation, discrimination and similar misconduct
by LAUSD dating back years before the filing of the complaint.
Appellant was required to file a claim with LAUSD before filing
her lawsuit. She failed to do so. The lawsuit is therefore barred.
12
Appellant has not cited nor are we aware of any cases
permitting a plaintiff to “cure” her failure to file a pre-lawsuit
claim by filing a post-lawsuit claim, particularly when the claim
is filed a year after the lawsuit had commenced. At that point, it
is too late 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.” ’ ” (See J.J. v.
County of San Diego, supra, 223 Cal.App.4th at p. 1219.)
Relying on Murray v. Oceanside Unified School Dist. (2000)
79 Cal.App.4th 1338 (Murray), appellant maintains that a
government claim may be filed after a lawsuit against a public
entity begins. Appellant’s reliance on Murray is misplaced. In
Murray plaintiff filed a timely pre-litigation claim which the
public entity rejected;2 she then commenced legal action. (Id. at
p. 1345.) She was later permitted to amend her properly filed
complaint to add post-complaint misconduct. (Ibid.) That is not
the situation here. The public entity in Murray had the
opportunity to settle Murray’s claims without litigation; LAUSD
never had that opportunity here.
To be clear, retaliation or harassment by a public entity in
response to a lawsuit, even one that is procedurally barred, is not
acceptable. Nothing in the law suggests, however, that a public

2 We note that Murray claimed she was harassed and
discriminated against due to her sexual orientation. (Murray,
supra, 79 Cal.App.4th. at p. 1345.) During the pendency of her
action, changes in the law affected the appropriate pretrial
procedure to be followed before asserting such a claim against a
public entity. Under these unusual circumstances, Murray’s
government claim was deemed sufficient to satisfy the procedural
requirement of FEHA. (Id. at pp. 1358–1361.)
13
entity’s alleged misconduct serves to lift an existing procedural
bar or relieve a plaintiff from following the legislatively
prescribed claim procedures. Filing a government claim while
simultaneously attempting to prosecute a cause of action based
on that claim, as plaintiff did here, does not satisfy the purpose of
the act, which is to give the public entity the opportunity to
investigate and settle the claim without the cost of litigation.
(See J.J. v. County of San Diego, supra, 223 Cal.App.4th at
p. 1219.)
D. The Trial Court Did Not Abuse Its Discretion When It Denied
Leave to Amend Despite Appellant’s PTSD.
Appellant contends the trial court abused its discretion in
denying her leave to amend the SAC because she had PTSD for
“most of the life time of the lawsuit, certainly for a vital time
frame of September 2015 to April 2016 when the second amended
complaint was filed.”
An appellant must “[s]upport any reference to a matter in
the record by a citation to the volume and page number of the
record where the matter appears.” (Cal. Rules of Court, rule
8.204(a)(1)(C).) “ ‘The appellate court is not required to search
the record on its own seeking error.’ [Citation.] Thus, ‘[i]f a party
fails to support an argument with the necessary citations to the
record, . . . the argument [will be] deemed to have been waived.
[Citation.]’ [Citations.]” (Nwosu v. Uba (2004) 122 Cal.App.4th
1229, 1246.)
By failing to provide adequate record cites, appellant has
forfeited these claims. Further, the record reflects appellant was
at all relevant times represented by counsel. She does not
explain why counsel could not adequately protect her interests
14
during any period of disability. Her claim is forfeited for that
reason as well.

Outcome: The judgment is affirmed. The parties are to bear their own costs on appeal.

Plaintiff's Experts:

Defendant's Experts:

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