Filed 5/20/13 Hodges v. ACE Parking Management CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



RICHARD E. HODGES,                                                  D061069

         Plaintiff and Appellant,

         v.                                                         (Super. Ct. No. 37-2010-00103423-
                                                                     CU-WT-CTL)
ACE PARKING MANAGEMENT, INC.,
et al.,

         Defendants and Respondents.


         APPEAL from a judgment of the Superior Court of San Diego County, Richard

E.L. Strauss, Judge. Affirmed in part, reversed in part.

         Richard E. Hodges, in pro. per., for Plaintiff and Appellant.

         Schwartz, Semerdjian, Ballard & Cauley, Dick A. Semerdjian and Sierra J. Spitzer

for Defendants and Respondents.



         Richard E. Hodges appeals a judgment dismissing his case after the superior court

sustained demurrers by Ace Parking Management, Inc. (Ace Parking), Scott Jones, Mike
Wilson and Ian Pollart (collectively, the defendants) to his third amended complaint

asserting claims for racial and age discrimination, harassment and retaliation. He

contends that his third amended complaint sufficiently alleged causes of action for racial

and age discrimination, harassment and retaliation against all of the defendants. We

conclude that the allegations were sufficient to state a claim for wrongful termination

based on racial and age discrimination against Ace Parking. We therefore reverse the

judgment as to that claim; in all other respects, we affirm the judgment.

                  FACTUAL AND PROCEDURAL BACKGROUND

       In accordance with the rules governing appellate review of a superior court's ruling

on a demurrer, the following factual recitation is taken from the allegations of Hodges's

third amended complaint and the exhibits attached thereto. (Aubry v. Tri-City Hospital

Dist. (1992) 2 Cal.4th 962, 966-967.)1

       Hodges, who is African-American, began working for Ace Parking in 2000 and he

worked his way up from a part-time temporary employee to a full-time supervisory

position. During that time, Hodges received two certificates of recognition for

outstanding and dedicated performance from the San Diego Marriott Mission Valley,

where he was assigned, as well as compliments from hotel patrons. In June 2005, after a

recent transfer to work for Ace Parking at the Holiday Inn on the Bay, Hodges filed an




1      Hodges's third amended complaint does not set forth all of the relevant facts, but
instead refers in part to factual allegations from his prior pleadings.
                                                2
internal complaint against Pollart, his new supervisor, reporting that Pollart improperly

castigated him in front of a new hire and accusing Pollart of racism and bigotry.2

       From April 2006 to January 2009, Pollart (1) issued Hodges multiple partial

paychecks for 10 different weekly pay periods, (2) failed to correctly report Hodges's

work hours, and (3) changed Hodges's work schedule. In January 2009, when Hodges

was 63 years old, defendants Wilson, an Ace Parking area manager, and Pollart

terminated him, ostensibly because of a slowdown in Ace Parking's business, while

retaining the other shift supervisor, a much younger White male who had worked for Ace

Parking for only two years.

       Hodges filed a complaint with the Equal Employment Opportunity Commission

arising out of his termination and was issued a right-to-sue letter. Representing himself,

Hodges filed this action in November 2010 and filed an amended complaint three weeks

later. The defendants challenged Hodges's first and second amended complaints by

demurrer. The superior court sustained both demurrers with leave to amend.

       Hodges filed a third amended complaint asserting claims for wrongful

termination/racial discrimination against Wilson and Pollart (first cause of action);

harassment against Pollart (second and third causes of action); retaliation against Pollart

(fourth cause of action); age discrimination against Wilson and Pollart (fifth cause of


2      Hodges's attached to his original complaint the internal complaint he made against
Pollart in June 2005, as well as an "Employee Warning Report" that Pollart issued to him
in October 2005 for failing to show up for a scheduled shift. These exhibits are not
attached to the third amended complaint.
                                             3
action); and discrimination, harassment and retaliation against all of the defendants (sixth

cause of action). The defendants again demurred to all of Hodges's claims. After hearing

oral argument, the superior court sustained the demurrers without leave to amend.

       Hodges appeals, contending that he has adequately alleged causes of action for

discrimination, harassment and retaliation.3




3       In his opening brief on appeal, Hodges argues that the third amended complaint
also alleged proper causes of action for breach of implied contract and gross negligence.
However, a review of the third amended complaint shows that no such claims were
asserted therein. In any event, Hodges's factual allegations did not support viable claims
in this regard. (See Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 335
[recognizing a "strong" statutory presumption that employment is at will, which is
overcome only by an employer's conduct establishing a specific understanding that the
employee would be terminated only for good cause]; City of Santa Barbara v. Superior
Court (2007) 41 Cal.4th 747, 754 [defining "gross negligence" as either a " 'want of even
scant care' " or " 'an extreme departure from the ordinary standard of conduct'
[citation]"].)

                                               4
                                        DISCUSSION

                                Sufficiency of the Pleadings4

       In an appeal from a judgment entered upon a demurrer sustained without leave to

amend, we review the challenged pleading de novo to determine whether it alleges facts

sufficient to state a cause of action under any legal theory. (McClain v. Octagon Plaza,

LLC (2008) 159 Cal.App.4th 784, 791-792.) In doing so, we must assume the truth of

"(1) all facts properly pleaded by the plaintiff, (2) all facts contained in exhibits to the

complaint, (3) all facts that are properly the subject of judicial notice, and (4) all facts that

may reasonably be inferred" from such facts. (Neilson v. City of California City (2005)

133 Cal.App.4th 1296, 1305.) We do not, however, accept the truth of allegations that

constitute legal contentions, conclusions of law, or deductions drawn from those legal

contentions or conclusions. (Ibid.)

4        Generally, an appellant's failure to provide a complete record on appeal will result
in an affirmance of the judgment or order that he is attempting to challenge. (See Gee v.
American Realty & Construction, Inc. (2002) 99 Cal.App.4th 1412, 1416 [recognizing
that if the appellate record is inadequate for meaningful review, the appellant defaults and
the superior court decision is normally affirmed]; Hernandez v. California Hospital
Medical Center (2000) 78 Cal.App.4th 498, 502 [taking this approach where the record
lacked copies of the challenged motion and opposition thereto].) However, although the
record that Hodges designated on appeal does not include various of the defendants'
demurrer and reply papers, it does include the challenged pleading and the superior
court's ruling on the demurrers to that pleading. Because the superior court's ruling is
subject to de novo review on appeal, the record is nominally adequate for this purpose
and, in keeping with policies governing appellate review, we address the appeal on its
merits. To permit a more adequate picture of what was before the superior court,
however, we requested the superior court file and, on our own motion, hereby augment
the record to include it. (Cal. Rules of Court, rule 8.155(a)(1)(A); see, e.g., McCarthy v.
Mobile Cranes, Inc. (1962) 199 Cal.App.2d 500, 501-503 [ordering clerk's file sent up
when appellant provided inadequate record].)
                                                5
A.     Claims for wrongful termination based on racial and age discrimination against
       Wilson and Pollart

       Although an employer may ordinarily terminate an "at will" employee, with or

without good cause (Lab. Code, § 2922), the California Fair Employment and Housing

Act (FEHA) makes it an unlawful employment practice for an employer "to discharge [a]

person from employment or . . . to discriminate against [him] in compensation or in

terms, conditions, or privileges of employment" based on his race or age. (Gov. Code,

§ 12940, subd. (a).) This statutory scheme authorizes the assertion of a claim by an

aggrieved employee against his employer, but does not support the assertion of such a

claim by the employee against his individual supervisors. (Reno v. Baird (1998) 18

Cal.4th 640, 644-664.) For this reason, the superior court properly sustained the

demurrers by Wilson and Pollart to Hodges's first and fifth causes of action alleging

wrongful termination based on racial discrimination and age discrimination against them.

B.     Harassment claims against Pollart

       FEHA also makes it an unlawful employment practice "[f]or an employer . . . or

any other person" to harass an employee because of race. (Gov. Code, § 12940,

subd. (j)(1).) To successfully assert a harassment claim, a plaintiff must allege facts

showing that he belonged to a protected group and was subjected to racial harassment,

and that the harassment was sufficiently pervasive that it altered the conditions of his

employment and created an abusive or hostile working environment. (Aguilar v. Avis




                                             6
Rent A Car System, Inc. (1999) 21 Cal.4th 121, 130; Etter v. Veriflo Corp. (1998) 67

Cal.App.4th 457, 465-466.)

       Whether particular conduct is sufficiently pervasive to create a hostile or offensive

work environment must be judged from the perspective of a reasonable person in the

employee's position in light of all the circumstances. (Fisher v. San Pedro Peninsula

Hospital (1989) 214 Cal.App.3d 590, 609-610 (Fisher).) Factors to be considered

include the severity and frequency of the conduct and whether it was physically

threatening or humiliating (rather than merely an offensive utterance). (Beyda v. City of

Los Angeles (1998) 65 Cal.App.4th 511, 517, citing Harris v. Forklift Systems, Inc.

(1993) 510 U.S. 17, 23.) The conduct must (a) have actually offended the employee

asserting the claim, and (b) been of such an extreme nature that it would have both

interfered with a reasonable employee's work performance and seriously affected such a

reasonable employee's psychological well-being. (Fisher, supra, at pp. 609-610; Etter v.

Veriflo Corp., supra, 67 Cal.App.4th at pp. 466-467.) Occasional, isolated, sporadic, or

trivial acts will not suffice. (Fisher, supra, at pp. 609-610.)

       Hodges's harassment claims are based on allegations that Pollart (1) issued Hodges

multiple partial paychecks for 10 weekly pay periods between April 2006 and January

2009, (2) failed to correctly report Hodges's work hours, and (3) changed Hodges's work

schedule without reason. Although Hodges clearly found this conduct offensive and

upsetting, it was sporadic in nature and cannot reasonably be deemed to constitute a

concerted pattern of harassment. (See Guthrey v. State of California (1998) 63

                                              7
Cal.App.4th 1108, 1122-1124 and cases cited therein.) Accordingly, the superior court

properly sustained Pollart's demurrer to this cause of action.

C.     Retaliation claim against Pollart

       FEHA makes it an unlawful employment practice for an employer to retaliate

against an employee for complaining about violations of its provisions. (Gov. Code,

§ 12940, subd. (h).) As with claims of discrimination, individual supervisory employees

are not personally liable under FEHA for engaging in retaliatory conduct. (Jones v.

Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158, 1160, 1173.) Thus, the

superior court properly sustained Pollart's demurrer to Hodges's cause of action for

retaliation.

D.     Claim for discrimination, harassment and retaliation against all defendants

       Hodges's sixth cause of action against the defendants incorporated the same

factual allegations that provide the basis for his other causes of action. For the reasons

discussed above, this cause of action failed to state a claim against the individual

defendants for discrimination, harassment or retaliation, and similarly failed to state a

claim against Ace Parking for harassment. The question remains whether Hodges's

allegations were sufficient to support claims against Ace Parking for retaliation or

discrimination.




                                              8
       1.     Retaliation

       To establish a prima facie case of retaliation, a plaintiff must show that he engaged

in a protected activity, that his employer subjected him to an adverse employment action,

and that there was a causal link between the protected activity and the employment

action. (Flait v. North American Watch Corp. (1992) 3 Cal.App.4th 467, 476.) In

support of his claim for retaliation, Hodges relied on essentially the same factual

allegations that provide the bases for his harassment causes of action as constituting an

adverse employment action.

       Although workplace harassment may rise to the level of an adverse employment

action for purposes of establishing a retaliation claim, such harassment must be severe or

pervasive. (See Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1056, fn. 16

(Yanowitz) [recognizing that FEHA was not intended to provide employees with a

remedy "for any possible slight" resulting from the filing of a discrimination complaint].)

Minor or relatively trivial adverse actions or conduct by an employer or fellow

employees that, from an objective perspective, are reasonably likely to do no more than

anger or upset an employee cannot properly be viewed as materially affecting the terms,

conditions, or privileges of employment, and are not actionable. (Yanowitz, supra, at pp.

1054-1055.) Hodges's allegations that Pollart retaliated against him by issuing him

multiple partial paychecks, changing his days off and treating him unprofessionally in

front of other employees fall into the latter category.



                                              9
       2.     Discrimination

       A prima facie case of discrimination under FEHA is established where an

employee alleges (1) he was a member of a protected class (here, based on race or age);

(2) he was subjected to an adverse employment action; (3) he was satisfactorily

performing his job when the adverse action was taken against him; and (4) circumstances

that suggest that his employer acted with a discriminatory motive. (See Guz v. Bechtel

National, Inc., supra, 24 Cal.4th at p. 355.) Hodges's third amended complaint alleges

that he is African-American and is 63 years old, and that he was terminated from his

supervisory position because of his race and/or his age. The complaint further alleges

that Ace Parking terminated Hodges and retained a much younger and less experienced

White male as the remaining shift supervisor. Finally, the operative complaint alleges

that Hodges was satisfactorily performing his job at the time of his termination. These

allegations are sufficient to allege a prima facie case of race and age discrimination.5




5      To the extent that Hodges's sixth cause of action also asserts claims for retaliation
and harassment against Ace, and claims against the individual supervisors, Hodges can
easily amend that cause of action to delete the surplus allegations and claims.
                                             10
                                      DISPOSITION

       The judgment is reversed insofar as the superior court sustained Ace Parking's

demurrer to Hodges's claim for racial and age discrimination. The matter is remanded for

further proceedings relating to those claims. The judgment is affirmed in all other

respects. Parties to bear their own costs on appeal.




                                                                               AARON, J.

WE CONCUR:


              NARES, Acting P.J.



                  McDONALD, J.




                                            11
