In Le Mere v. Los Angeles Unified School Dist., ordered published May 14, 2019, the Second District Court of Appeal, Division 8 affirmed dismissal of an action after a demurrer was sustained without leave to amend. In a lawsuit filed in 2015, the school teacher plaintiff alleged she suffered harassment, retaliation, and discrimination from the date she filed a lawsuit against the defendant district in 2007. A year after she filed the lawsuit, she presented a claim for damages to the defendant district. The First Amended Complaint included a cause of action for retaliation under FEHA. The trial court sustained the defendants' demurrer to the cause of action with leave to amend. The plaintiff did not amend the cause of action. The Second Amended Complaint alleged as causes of action against the defendant district harassment in violation of Education Code sections 44110 through 44114, and violation of Labor Code section 1102.5. The trial court sustained demurrer as to the first cause of action, because the plaintiff was not given leave to add the new cause of action when demurrer was sustained to the prior complaint, and because the plaintiff failed to allege she filed a complaint with the police, a prerequisite to liability. The court sustained demurrer to the section 1102.5 cause of action because the plaintiff had failed to comply with the Government Claims Act.
The appellate court affirmed the demurrer to the retaliation cause of action. The plaintiff failed to allege that any of the named defendants engaged in any retaliatory conduct. It does not allege the named defendants knew about the 2007 lawsuit, or were directed by others who did. Almost two years passed between the 2007 lawsuit and the first retaliatory act alleged, in 2009. That is too large an interval to imply causation. Since the plaintiff elected not to amend, the court presumed she had pled her best case. The court acted within its discretion in concluding the Education Code harassment cause of action was added without leave, and precluded by failure to file a police report.
The appellate court also affirmed the decision that the Labor Code section 1102.5 cause of action was barred by failure to comply with the claim-presentation requirement. A plaintiff cannot cure her failure to present a claim before filing suit by presenting a claim after filing suit.
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