Silva v. Cal. Dept. of Transportation CA4/2

• Court: California Court of Appeal
• Decided: June 10, 2022
• Docket: E074565
• Status: Unpublished

Opinion

Filed 6/10/22 Silva v. Cal. Dept. of Transportation CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

RAUL M. SILVA et al.,

Plaintiffs and Appellants, E074565

v. (Super.Ct.No. CIVDS1905188)

CALIFORNIA DEPARTMENT OF OPINION TRANSPORTATION,

Defendant and Respondent.

APPEAL from the Superior Court of San Bernardino County. John M. Tomberlin,

Judge. Affirmed.

John A. Shepardson for Plaintiffs and Appellants.

Erin E. Holbrook, Chief Counsel, Jerald M. Montoya, Deputy Chief Counsel, and

Desiri Schele for Defendant and Respondent.

1 Plaintiffs and appellants Raul Silva, Fernando Gandara, and David Buzon appeal

from a judgment dismissing their employment discrimination lawsuit against defendant

and respondent California Department of Transportation (Caltrans). Appellants argue the

trial judge erred by sustaining Caltrans’s demurrer on the ground their individual

discrimination claims are improperly joined under Code of Civil Procedure section 378.

According to appellants, permissive joinder is proper because their claims involve similar

conduct by Caltrans employees. We disagree. As their own allegations demonstrate,

appellants’ claims arise out of separate and distinct incidents of harassment and

discrimination. We therefore conclude the judge properly sustained the demurrer and

affirm.

I

FACTS

Appellants were Caltrans employees at the time of the alleged incidents of

harassment and discrimination. On April 9, 2019, appellants filed a complaint for

damages alleging the following facts. (See Department of Corporations v. Superior Court

(2007) 153 Cal.App.4th 916, 922, fn. 2 [when reviewing ruling on a demurrer we assume

the truth of the complaint’s allegations].)

A. Silva’s Allegations

Silva was hired as a maintenance worker in 2011. In August 2017, while he was

on temporary assignment in the Right-of-Way Division, he applied for a permanent

associate agent position within the division. He interviewed for the position with the

2 division’s deputy director for District 8, Rebecca Guirado, then on October 17, 2017,

Guirado told Silva that despite her having vouched for him, the company decided to hire

someone else. Later that day, Silva filed an Equal Employment Opportunity (EEO)

complaint alleging he had been passed over for the position based on discriminatory

reasons. Shortly after he filed the complaint, Guirado retaliated against him by rescinding

his training for the associate agent position (despite having personally approved the

training two months earlier). On October 19, 2017, he reported Guirado’s retaliatory

conduct to HR.

Later on (the complaint doesn’t allege when), Guirado denied Silva two additional

promotions and an opportunity to interview for an open position, and she had two other

Caltrans employees spy on him. The EEO officer assigned to his complaint ignored his

allegations of discrimination, and on June 5, 2018 he went on medical leave. Silva

alleged he had “been harassed and discriminated against because of his gender.”

B. Gandara’s Allegations

Gandara alleged that his coworker Susan Esparza badgered him about retiring,

continually asking him when he was going to leave Caltrans. On an undisclosed date,

Esparza showed Gandara how much money he could make if he retired. At some point,

he and Esparza had a disagreement and afterward Guirado retaliated against him by

having Esparza “personally escort[]” him up to her office, “treating him like an untrusty

second-class worker.” Gandara filed a complaint with the Health and Safety Office

alleging workplace violence and, on June 11, 2018 received a letter sustaining his

3 complaint. However, after that, an investigator at the Health and Safety Office called to

tell him complaining was a “waste of time” because her office “can’t [punish] the

violators.” Gandara then filed an EEO complaint and sent letters to various executive-

level Caltrans employees to inform them he had been the victim of age discrimination.

C. Buzon’s Allegations

Buzon worked as a supervisor in the Right-of-Way Division. In 2016, he became

overwhelmed with work after one of his coworkers retired and Guirado failed to give him

sufficient support. In November 2017, Guirado told Buzon she noticed his speech was

slurred, his attention was impaired, and his job performance was declining. She told

Buzon, “I want to fire you, but don’t know how.” Instead, she instituted weekly progress

meetings with Buzon, and this served only to exacerbate his stress about being

overwhelmed.

In October 2018, Buzon was diagnosed with “conversion disorder,” the symptoms

of which are incoherent speech and difficulty with writing and recall. He went on medical

leave, and the following month Guirado pressured him to retire. He told Guirado he had

decided to retire in February 2019, but he later changed his mind for financial reasons.

He alleged he had been the victim of harassment and discrimination based on disability.

He also claimed he’d been the victim of gender discrimination but made no allegations in

support of that claim.

4 D. Demurrer and Motion for New Trial

During conferences on September 5 and 9, 2019, Caltrans informed appellants of

its view that they were improperly joined, and it subsequently sent them correspondence

reiterating this position. On September 11, appellants personally served Caltrans with the

complaint.

On September 24, Caltrans demurred to the complaint on multiple grounds,

including that Silva, Gandara, and Buzon were improperly joined under Code of Civil

Procedure section 378. (Unlabeled statutory citations refer to this code.) The hearing took

place on November 13 before San Bernardino County Superior Court Judge John

Tomberlin. Though appellants did not include the transcript of the hearing in the

appellate record, the minute order reflects the judge concluded appellants were

improperly joined and sustained the demurrer without leave to amend.

On November 19, appellants filed a motion for new trial that cited two cases they

hadn’t cited in their opposition to the demurrer and which, according to them,

demonstrated they were not improperly joined. On January 13, 2020, the judge denied the

motion, finding the cases inapposite, and on February 11 he entered judgment dismissing

the lawsuit.

Appellants filed a timely notice of appeal.

5 II

ANALYSIS

Appellants argue the judge erred by concluding their claims are misjoined, and as

a result, his orders sustaining the demurrer and denying their motion for new trial must be

reversed.

We independently review a ruling sustaining a demurrer without leave to amend,

meaning “we exercise our independent judgment about whether the complaint alleges

facts sufficient to state a cause of action under any possible legal theory.” (Moe v.

Anderson (2012) 207 Cal.App.4th 826, 830 (Moe).) “We treat the demurrer as admitting

all material facts properly pleaded, but not contentions, deductions or conclusions of fact

or law. . . [And] we give the complaint a reasonable interpretation, reading it as a whole

and its parts in their context.” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318 [cleaned up].)

Finally, we will affirm the ruling “‘if any one of the several grounds of demurrer is well

taken.’” (Moe, at p. 831.)

Section 378 allows multiple parties to “join in one action as plaintiffs” if “[t]hey

assert any right to relief jointly, severally, or in the alternative, in respect of or arising out

of the same transaction, occurrence, or series of transactions or occurrences and if any

question of law or fact common to all these persons will arise in the action.” (Italics

added.) The purpose of permissive joinder is to “simplify the pleadings and conduct of

actions” and, in general, to promote efficient and expedient resolution of disputes. (Kraft

v. Smith (1944) 24 Cal.2d 124, 129.)

6 Appellants claim they are properly joined under section 378 because they are all

suing the same employer, the conduct giving rise to their claims occurred in the same

building, and they were each “witnesses to the wrongful conduct perpetrated on each of

them.” In short, they argue permissive joinder applies because their “causes of action

arose from similar conduct” on Caltrans’s part. We disagree.

As an initial matter, there are no allegations in the complaint supporting the claim

that appellants witnessed each other’s harassment or discrimination. But in any event, the

joinder standard is narrower than appellants say. Section 378 does not impose a “similar”

conduct standard; by its terms, it imposes a “same” occurrence standard. In other words,

this means it’s not the perpetrator or location that must be common to each plaintiff, but

rather the incident giving rise to the injury. (See, e.g., Moe, supra, 207 Cal.App.4th at

pp. 831, 834 [plaintiffs alleging the same physician had sexually assaulted them on

separate occasions were improperly joined regardless of fact the assaults occurred in the

same office].)

For example, courts have found a right to relief arising out of the same occurrence

or series of occurrences where: two people sued for personal injuries they suffered in the

“same accident” (Emery v. Pacific Employers Ins. Co. (1937) 8 Cal.2d 663, 666); two

people the defendants arrested at “same time and place” sued for false imprisonment

(Peters v. Bigelow (1934) 137 Cal.App. 135, 140); multiple taxpayers sued to challenge

the validity of the same property tax “upon the same [legal] ground” (De Mille v. County

7 of Los Angeles County (1938) 25 Cal.App.2d 506, 508); and multiple property owners

brought an action for civil conspiracy and fraud against a subdivider who cheated them

using a “common plan” (Adams v. Albany (1954) 124 Cal.App.2d 639, 641).

Here, in contrast, the alleged harassing and discriminatory incidents do not

constitute a single occurrence and nothing in the complaint indicates the incidents were

related so as to constitute a single series of occurrences or a common plan. According to

the complaint’s allegations, appellants’ injuries arise from different factual circumstances

and involve different protected categories (i.e., gender, age, and disability). Silva claims

Guirado subjected him to gender discrimination in the fall of 2017 by, among other

things, passing him over for a permanent position. Gandara claims Esparza harassed him

on the basis of his age by continually pressuring him to retire. Though the complaint does

not allege when this harassment occurred, the conduct is separate and distinct from

Silva’s experiences with Guirado. And finally, Buzon claims that in the fall of 2018

Guirado subjected him to harassment and discrimination based upon his medically

diagnosed disorder. The fact these claims share a common defendant is insufficient to

demonstrate the community of interest necessary to allow permissive joinder under

section 378. (E.g., Coleman v. Twin Coast Newspaper, Inc. (1959) 175 Cal.App.2d 650;

Moe, supra, 207 Cal.App.4th at p. 831.)

We are unpersuaded by appellants’ attempt to compare their claims to the

negligent supervision claims in Moe. In that case, two plaintiffs who had been patients of

the same physician brought a single lawsuit in which they asserted claims against the

8 physician for sexual assault and against his employers for negligent supervision. (Moe,

supra, 207 Cal.App.4th at pp. 828-829.) As we noted above, the appellate court

concluded the claims against the physician were improperly joined because the assaults

were distinct incidents that occurred on separate occasions. The fact the assaults

constituted conduct by the same person that was “similar” in nature was insufficient to

create a community of interest between the plaintiffs. (Id. at p. 830.) The analysis came

out differently for the negligent supervision claims, however, because those claims arose

from a single “related series of transactions”—the employers’ conduct in hiring and

supervising the physician. (Id. at pp. 833-835.)

But here, appellants’ harassment and discrimination claims are more like the

assault than the negligent supervision claims. This is because proving appellants’

harassment and discrimination cases and the plaintiffs’ assault cases requires marshalling

different evidence about different incidents, whereas proving each plaintiff’s negligent

supervision claims depends on the exact same evidence.

We conclude the judge correctly determined appellants were improperly joined

under section 378 and, as a result, properly sustained the demurrer without leave to

amend and denied the motion for new trial.

9 III

DISPOSITION

We affirm the judgment. Respondents shall recover costs on appeal.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

SLOUGH J.

We concur:

RAMIREZ P. J.

FIELDS J.