Filed 10/7/13 Lopez-Canzano v. City of Los Angeles CA2/7

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION SEVEN


YOLANDA LOPEZ-CANZANO,                                               B245830

         Plaintiff and Appellant,                                    (Los Angeles County
                                                                     Super. Ct. No. BC475589)
         v.

CITY OF LOS ANGELES et al.,

         Defendants and Respondents.




         APPEAL from an order of dismissal of the Superior Court of Los Angeles County,
Holly E. Kendig, Judge. Reversed.


         Law Offices of Linda M. Battram and Linda M. Battram for Plaintiff and
Appellant.


         Carmen Trutanich, City Attorney, and Paul L. Winnemore, Deputy City Attorney,
for Defendants and Respondents.


                                      ___________________________
                                     INTRODUCTION

       The trial court sustained without leave to amend the defendant‘s demurrer to the
plaintiff‘s first amended complaint for gender and age discrimination and ordered
plaintiff‘s complaint dismissed. The plaintiff appeals. We reverse.
                     FACTUAL AND PROCEDURAL SUMMARY
       In her original complaint, Yolanda Lopez-Canzano (Canzano) filed a complaint
against the City of Los Angeles (City) and Carl Oschmann alleging causes of action for
(1) discrimination in violation of the Fair Employment and Housing Act (FEHA), (2)
defamation in violation of Civil Code section 47.5 and (3) retaliation. Following the
City‘s demurrer, Canzano filed an amended complaint, asserting one cause of action for
gender discrimination in violation of FEHA and a second for age discrimination under
FEHA.
       According to her first amended complaint, at all relevant times, Yolanda Lopez-
Canzano (Canzano), a female over the age of 40 (born in 1966), was employed as a
police officer with the Los Angeles Police Department (LAPD), which acted through its
officer Carl Oschmann, a white male. (In her first amended complaint, Canzano defined
the City of Los Angeles as the only defendant.)
       Following a career in the military, Canzano alleged, she had previously pursued a
career as a police officer and detective with the Department but her application was
denied solely because of her gender and related height. She then found a job with the
Department of Water and Power (DWP) where she worked for the next 21 years. During
that time, a class action was filed against the LAPD because of the discriminatory effect
of the height requirement. In 1997, she says, the Chief of Police called for the
elimination of all height restrictions, ―but the debate continues.‖
       When she learned the height restriction had been stricken, she arranged to take a
leave from her DWP position to pursue her lifelong dream of becoming an LAPD police
officer and detective, with the plan to go into administration. She successfully completed

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training at the police academy, which she attended from April 27, 2009 through March
26, 2010 and was successful in getting a job as a police officer on or about March 29,
2010. During her one-year probationary period, Canzano alleged, she received 24
satisfactory (biweekly) reviews, passed and was then promoted to the next level, with
reviews to be provided monthly.
       Canzano‘s satisfactory reviews ceased upon her assignment to Oschmann, who
reputedly had 20 years of experience as an officer. According to the allegations,
Oschmann was known at the LAPD to be discriminatory toward female probationary
officers and other LAPD employees; he talked down to women officers and citizens and
intentionally derailed female employees‘ careers when given the opportunity by the
LAPD. On his first day of working with Canzano, Oschmann told her he was taking over
her training, falsely claiming a female officer did not want to train Canzano because she
is a female when in fact he was covering up his intention to fail her. That first day,
Oschmann told Canzano she was on her own, he was not going to provide her with any
training, and if she got into an altercation, she was on her own because he was looking to
retire and was not about to get hurt. He did not treat male trainees in this manner.
       According to Canzano, the LAPD provided Oschmann multiple occasions to derail
her career in order to have her terminated because of her gender and age as follows: (1)
knowing Oschmann‘s animus toward women and specifically Canzano, the LAPD
allowed Oschmann to train Canzano even though a female officer had already been
assigned to train her; (2) allowed Oschmann to hold her back when she was considered
promotable by everyone else more familiar with her performance, such as Officer
Tamura; (3) denied Officer Ward‘s request to relieve Oschmann from training Canzano
despite her complaints of discrimination and harassment; (4) because Oschmann is male,
accepted Oschmann‘s false version of the facts regarding a September arrest in which he
claimed he was hurt because Canzano ―froze‖ when in fact he was hurt because the
suspect fell on him and despite the fact the suspect was brought in with handcuffs issued

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to Canzano, not Oschmann; and (5) demoted Canzano for no legitimate reason.
Moreover, she alleged, when she questioned her demotion, she was informed after the
fact it was because Oschmann refused to sign off on her Blue Book, despite the fact it
was Oschmann‘s responsibility to sign off and despite Canzano‘s repeated requests for
Oschmann‘s signature. In fact, he never refused to sign but rather always said he would
do it later. Notice of any Blue Book deficiency was supposed to have been given to her
before her probationary period was up so she could take action she alleged; instead,
however, such notice was given after she inquired and no one could identify a reason for
her demotion.
       Canzano said she was singled out for harsher treatment, received poor and
inadequate treatment from Oschmann and, on December 9, 2010, was ultimately
terminated by LAPD with no reason given, because of her gender and age, not due to her
performance or ability.
       As examples of Oschmann‘s gender animus, Canzano cited the following: (1)
Without notifying Canzano, Oschmann left instructions requiring Canzano and only
Canzano to return to the station to be excused by the Watch Commander when white
males as well as females training with officers other than Oschmann (including Canzano
prior to Oschmann‘s takeover of her training) were permitted to leave directly from the
site. When Canzano continued to do so, as she had done in the past along with the other
trainees, she was issued a comment card, unaware she had been singled out. (2)
Oschmann deliberately delayed his response time whenever a call involved women and
their children. (3) On or about July 23, 2010, Canzano‘s son required emergency medical
attention and was transported to the hospital. While at work, Canzano was informed of
this and told Oschmann her son would need surgery in a few hours. When she explained
what had happened to Oschmann and asked to leave two hours later to help her son,
Oschmann dismissed her and demanded she return to the station immediately. When she
tried to tell him she could work until the surgery, he said she should have stayed at her

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old job if her family came first instead of coming to LAPD and ordered her to the station
immediately. (4) Oschmann constantly referred to women as ―bitch‖ and ―bitches‖
although he did not refer to men in such derogatory terms. (5) At no time did Oschmann
provide Canzano with any training, guidance or criticism of her performance and instead
kept her confined in the patrol car for the vast majority of the time, engaged in personal
questioning of Canzano and expressing his personal biases, although he did ridicule her
in front of others on more than one occasion. On one occasion, Oschmann wanted to go
to El Pollo Loco so Canzano drove as he directed into the virtually empty lot, but then he
photographed the car; when she asked why, he muttered something about one of the other
officers being Mormon but refused to explain. Later, he ridiculed Canzano in front of
others, saying she did not know the rule an officer is to select the easiest space from
which to exit in case of emergency. He refused to teach her and instead set her up for
failure although he did not treat male probationary officers in this manner. (6) Oschmann
constantly talked down to Canzano in a tone and manner she heard him use with other
females, but never with white males. (7) The Supervisory Blue Book is a binder in which
the training officer (Oschmann) would go over the areas in which he has trained a
probationary officer in the field, gives a mock test and then sends the trainee to a
supervisor who will quiz/test the trainee in those areas and sign off on the book.
Canzano‘s previous training officers had ensured Canzano‘s entries were signed off by a
supervisor. The chain of command is that the training officer is to quiz/test the
probationer. Throughout her entire time assigned to Oschmann, Canzano asked and
reminded him about getting signed off in the book. He never indicated he had any reason
not to carry out this duty; he always said he would do it later, or not now, or he was too
busy or he could do it tomorrow.
       Similarly, with respect to her age, Canzano alleged, rather than providing training
during ―down time‖ as other officers had done, Oschmann questioned Canzano
extensively about her age, her 16-year military career on active duty and as a reservist

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and her 21-year prior career at the DWP. He questioned how she could possibly have
become a Squad Leader and Staff Sergeant in the Army and a supervisor at the DWP. He
elicited from Canzano her goal to become a supervisor at LAPD—perhaps Oschmann‘s
supervisor. She intended the statement to be friendly, but he took offense because he did
not like the idea of Canzano, an older woman, becoming his supervisor ―late‖ in her
career. According to Canzano, he constantly insinuated and often stated to Canzano and
others she never should have left her prior job to try to be a police officer at her age, and
she was too old to be a police officer, constantly discouraging her in what he regarded as
her choice to join the police force after two other careers or having ―such a successful
career doing office work,‖ always expressing his disapproval because of her age when it
was only the LAPD‘s height restriction that had prevented her from starting her career
earlier.
       On or about September 3, 2010, without stating any basis, Oschmann requested
the extension of Canzano‘s probation. She made multiple inquiries but no one could
provide a reason. On or about September 23, 2010, Captain Ryan gave Canzano
interdepartmental correspondence stating the reason for the extension was because she
did not have her supervisor‘s signature in the Blue Book for all portions of her training,
despite the fact she should have been given notice before any extension to allow her to
take action to cure, and no white male would have been treated in this manner.
       Meanwhile, she alleged, Officer Tamura and others reviewed Canzano‘s
performance record and could find no evidence and no record she had failed or was sub
par. In his review of Canzano‘s probationary reports, Officer Tamura found Canzano‘s
―write-ups‖ were equal to the other male probationary officers‘ write-ups, expressed his
disbelief at the way Canzano was singled out and countermanded the extension so
Canzano was reinstated.
       Determined to fail Canzano because of her age and gender, however, Oschmann
went above Officer Tamura and ―somehow managed to reverse the decision‖ so she was

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demoted a second time. Later, Canzano was informed and now believes Oschmann
manufactured and inserted a negative performance review in her record because one
appeared in her file although it had not been given to her before. Because her complaints
about Oschmann‘s discrimination and harassment went unheeded and the City instead
supported and ratified Oschmann‘s actions, Canzano then knew Oschmann wanted to
hold her back to cause her to fail so she asked Training Officer Ward (an African
American male) if he could protect her from Oschmann‘s actions and request that
Canzano become Officer Ward‘s probationer. Although Officer Ward wanted to help
Canzano, he was going to be on vacation for one month and would ask upon his return.
       On or about September 3, 2010 (the date Canzano alleged Oschmann requested
the extension of her probation for no reason), Oschmann was hurt on the job when he
neglected to move out of the way of a suspect falling in a failed attempt to scale a wall.
He and Canzano had been pursuing the suspect on foot. Because of her shorter stature,
she alleged, she was able to move out of the way, and then pounced on the suspect,
cuffing and arresting him. Despite the fact Canzano had already cuffed the suspect and
subdued him on the ground, Oschmann tasered the suspect twice for no apparent reaason.
Each time he directed Canzano to step aside. She did so but questioned the unnecessary
tasering.
       Thereafter, Oschmann falsely blamed Canzano for his injury, ―deeming her
‗unsafe‘ and destroying her career.‖ Oschmann pretended to be severely injured because
Canzano ―froze and did nothing‖ but was actually enjoying himself on vacation.
       Canzano alleged she was subjected to a hostile work environment because of her
gender and age in that she was singled out and set up to fail, inadequately trained,
demoted and terminated in violation of FEHA. Initially, she was given no reason for
these adverse actions, and when reasons were given later, they were merely a pretext for
unlawful discrimination as Canzano alleged she had performed satisfactorily, she was not
responsible for the incomplete Blue Book.

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       As an exhibit to her first amended complaint, Canzano attached a copy of the
claim she filed with the Department of Fair Employment and Housing, in which she
further described her time at LAPD.
       The City filed a demurrer to Canzano‘s first amended complaint, arguing she had
failed to sufficiently state her causes of action for gender and age discrimination, and
Canzano filed opposition.
       After taking the matter under submission, the trial court issued its ruling sustaining
the City‘s demurrer to both causes of action without leave amend and then ordered the
action dismissed. The court agreed with the City that Canzano had ―added little or
nothing in the way of supportive facts‖ after being granted leave to amend following the
initial demurrer. The trial court further agreed with the City that Canzano had only
shown ―stray remarks‖ by Oschmann and had failed to show he was the decision maker
in the decision not to retain her following her probation.
       Canzano appeals.
                                       DISCUSSION
Standard of Review.
       In reviewing the sufficiency of a complaint against a demurrer, all material facts
properly pleaded are admitted, ―but not contentions, deductions or conclusions of fact or
law.‖ (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Page v. Superior Court (1995) 31
Cal.App.4th 1206, 1208.) ―If the material facts show the plaintiff is entitled to any relief,
the complaint will be held sufficient.‖ (Ibid.) ―We give the complaint a reasonable
interpretation, reading it as a whole and its parts in their context.‖ (Blank v. Kirwan,
supra, 39 Cal.3d at p. 318.) As we noted in Fisher v. San Pedro Peninsula Hospital
(1989) 214 Cal.App.3d 590, 604, ―[T]he question of plaintiffs‘ ability to prove these
allegations, or the possible difficulty in making such proof, does not concern the
reviewing court.‖




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Applicable Law.
       The Fair Employment and Housing Act (FEHA) declares it an ―unlawful
employment practice‖ for any employer ―because of the race, religious creed, color,
national origin, ancestry, physical disability, mental disability, medical condition, genetic
information, marital status, sex, gender, gender identity, gender expression, age, or sexual
orientation of any person, . . . to discharge the person from employment . . . , or to
discriminate against the person in compensation or in terms, conditions, or privileges of
employment.‖ (Gov. Code, § 12940, subd. (a).) The statute also prohibits employers
from retaliating against employees for engaging in protected activity—i.e., for
―discharg[ing], expel[ling], or otherwise discriminat[ing] against any person because the
person has opposed any practices forbidden under this part . . . .‖ (Id., Gov. Code, §
12940, subd. (h).)
       Courts have observed that proof of intentional discrimination or retaliation often
depends on circumstantial evidence because it consists of ―subjective matters only the
employer can directly know, i.e., his attitude toward the plaintiff and his reasons for
taking a particular adverse action.‖ (Mamou v. Trendwest Resorts, Inc. (2008) 165
Cal.App.4th 686, 713 (Mamou).) ―Given the resulting difficulties of proof, the courts
have fashioned a special presumption shifting the burden of production—but not
persuasion—to the employer upon a prescribed showing by the plaintiff. Specifically,
―the employee ‗may raise a presumption of discrimination by presenting a ―prima facie
case,‖ the components of which vary with the nature of the claim, but typically require
evidence that ―(1) [the plaintiff] was a member of a protected class [or engaged in a
protected activity], (2) he was qualified for the position he sought or was performing
competently in the position he held, (3) he suffered an adverse employment action, such
as termination, demotion, or denial of an available job, and (4) some other circumstance
suggests discriminatory [or retaliatory] motive. [Citations.]‖ (Guz [v. Bechtel National,
Inc. (2000)] 24 Cal.4th [317,] 355 [100 Cal. Rptr. 2d 352, 8 P.3d 1089].) A satisfactory
showing to this effect gives rise to a presumption of discrimination which, if unanswered

                                              9
by the employer, is mandatory—it requires judgment for the plaintiff. (Ibid.)‘‖ (Mamou,
supra, at pp. 713–714.)
       ―Such evidence, however, only satisfies the plaintiff‘s initial burden. ―‗Once an
employee establishes a prima facie case, the employer is required to offer a legitimate,
nonretaliatory reason for the adverse employment action. [Citation.] If the employer
produces a legitimate reason for the adverse employment action, the presumption of
retaliation ―‗―drops out of the picture,‖‘‖ and the burden shifts back to the employee to
prove intentional retaliation. [Citation.]‘ (Yanowitz [v. L’Oreal USA, Inc. (2005)] 36
Cal.4th [1028,] 1042 [32 Cal. Rptr. 3d 436, 116 P.3d 1123].)‖ [Citation.]‖ (Joaquin v.
City of Los Angeles (2012) 202 Cal.App.4th 1207, 1219-1220.)
       The City again says Oschmann‘s ―stray remarks‖ were insufficient to satisfy
Canzano‘s burden to show he or, more importantly, the person who decided to terminate
Canzano was motivated by discriminatory animus because of her age or gender. We
disagree.
       In the summary judgment context, our Supreme Court in Reid v. Google, Inc.
(2010) 50 Cal.4th 512, 545, rejected the strict construction of the ―stray remarks‖
doctrine as argued by Google in that case, which the City advances in this one. The
―probative value of a challenged remark depends on the facts of each case.‖ (Id. at p.
545.) Indeed, as the Reid court observed, ―the stray marks doctrine contains a major flaw
because discriminatory remarks by a nondecisionmaking employee can influence a
decision maker. ‗If [the formal decision maker] acted as the conduit of [an employee‘s]
prejudice—his cat‘s paw—the innocence of [the decision maker] would not spare the
[defendant employer] from liability.‘‖ (Id. at p. 542, citation omitted.)
       Canzano alleged that before she was assigned to work with Oschmann as her
training officer, she had earned 24 satisfactory biweekly performance reviews and was
promoted to the next level at which reviews were provided monthly. At the time
Oschmann sought to extend her probationary period, at least one other supervisor
reviewed her file and noted there was nothing negative in her file justifying such a

                                             10
demotion. When the supervisor (Tamura) obtained Canzano‘s reinstatement, she alleged,
Oschmann later fabricated an negative performance review with no basis in fact.
(Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 224 [pretext may be
demonstrated by showing ―‗the proffered reason had no basis in fact, the proffered reason
did not actually motivate the discharge, or, the proffered reason was insufficient to
motivate the discharge. [Citation.]‘ [Citation.]‖]; see also Hersant v. Department of
Social Services (1997) 57 Cal.App.4th 997, 1005 [pretext may be shown by ―‗such
weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the
employer‘s proffered legitimate reasons for its action that a reasonable fact finder could
rationally find them ―unworthy of credence,‖ [citation], and hence infer ―that the
employer did not act for [the asserted] non-discriminatory reasons.‖‘‖].)
       By Canzano‘s description, not only did Oschmann refuse to train her because of
her age and gender and instead took negative action against her, but he constantly stated
she was to too old to be a police officer, said she never should have left her prior job,
expressed dismay at how she could have held supervisory positions in the Army and at
the DWP and made numerous derogatory remarks based on her gender and age. Canzano
alleged Oschmann was her supervisor and had a pivotal role in the decision to terminate
her considering his alleged responsibility for preventing Canzano from obtaining
necessary supervisory signatures in the Blue Book and his lie about the circumstances of
the subsequent arrest and tasering of the chase suspect, calling into question whether the
remarks even qualify as stray remarks. (Reid v. Google, supra, 50 Cal.4th at p. 542.)
Here, at the pleading stage, Canzano has alleged sufficient facts to withstand the City‘s
demurrer and the action was erroneously dismissed.
       In addition, although she concededly did not request leave to amend in the trial
court or show how she could amend her complaint to state claims for harassment and
retaliation in violation of FEHA in the trial court, she has done so in her appellate
briefing, citing her allegations Oschmann was constantly making statements and
demonstrating by his conduct his animosity toward Canzano because of her age and

                                             11
gender on a sufficiently severe and pervasive basis to constitute a hostile work
environment, and when she complained about Oschmann‘s discriminatory and harassing
conduct and sought help from the City (within the LAPD), she was ultimately terminated
in retaliation for her complaints (Gov. Code, § 12940, subd. (h)). (Schifando v. City of
Los Angeles (2003) 31 Cal.4th 1074, 1081 [appellate court will reverse for abuse of
discretion if it determines there is a reasonable possibility the pleading can be cured by
amendment].) When a demurrer is sustained without leave to amend, the request for
leave to amend may be made for the first time on appeal from the order sustaining the
demurrer. (Code Civ. Proc., § 472c, subd. (a); City of Stockton v Superior Court (2007)
42 Cal.4th 730, 746-747 [―The issue of leave to amend is always open on appeal even if
not raised by the plaintiff‖].)

                                      DISPOSITION
       The order of dismissal and order sustaining the City‘s demurrer to Canzano‘s first
amended complaint are reversed, and the matter is remanded to the trial court with
instructions to enter a new order overruling the City‘s demurrer and allowing Canzano to
file an amended complaint. Canzano is to recover her costs on appeal.




                                                                       WOODS, J.


We concur:




              PERLUSS, P. J.                                           ZELON, J.




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