Opinion
B294028
03-30-2020
SANDRA BALLINGER, Plaintiff and Appellant, v. STATE OF CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION et al., Defendants and Respondents.
Mahoney Law Group, Kevin Mahoney and Dionisios Aliazis for Plaintiff and Appellant. Xavier Becerra, Attorney General, Chris A. Knudsen, Assistant Attorney General, Gabrielle H. Brumbach and Robert D. Petersen, Deputy Attorneys General, for Defendants and Respondents.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. BC681327) APPEAL from a judgment of the Superior Court of Los Angeles County, Barbara A. Meiers, Judge. Affirmed. Mahoney Law Group, Kevin Mahoney and Dionisios Aliazis for Plaintiff and Appellant. Xavier Becerra, Attorney General, Chris A. Knudsen, Assistant Attorney General, Gabrielle H. Brumbach and Robert D. Petersen, Deputy Attorneys General, for Defendants and Respondents.
____________________
Plaintiff and appellant Sandra Ballinger (Ballinger) appeals a judgment of dismissal after the trial court sustained demurrers by defendants and respondents California Department of Corrections and Rehabilitation (the Department) and Cecilia Jamison (Jamison) (sometimes collectively referred to as Defendants) to Ballinger's second amended complaint (SAC) without leave to amend.
We conclude Ballinger failed to state a cause of action and therefore affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Ballinger is employed by the Department as a parole agent whose duties include the supervision of adult parolees. On October 27, 2017, Ballinger commenced this action against the Department as well as Jamison, who was her supervisor.
1. Pleadings.
The operative pleading is the SAC, which included the following allegations relevant to this appeal:
Around May 2016, Jamison became Ballinger's supervisor. Ballinger told Jamison that she was a Baptist Christian and attended church on Sundays with her children. Shortly thereafter, Jamison implemented a weekend work requirement. Ballinger informed Jamison that she could not work on Sundays for religious reasons, and requested Sundays off. Jamison disregarded Ballinger's seniority status and denied her request. Jamison cut Ballinger's hours and scrutinized her work. Jamison had another employee monitor Ballinger and report on her activities. Jamison fabricated incidents for the purpose of berating and disciplining Ballinger. Jamison's acts prevented Ballinger from attending church with her family on Sundays, deprived her of the benefit of her seniority status, restricted her use of her paid time off, and caused her to suffer emotional distress.
Ballinger also pled she was discriminated against on the basis of race. She alleged that she was subjected to disparate treatment by Jamison, and that a colleague told Ballinger that Jamison was "intimidated by [Ballinger] because [she] was a gay black woman." Ballinger also alleged that in September 2017, when she was transferred to the Department's San Bernardino office, District Administrator Eric Summers (Summers) placed her desk in a supply room and isolated her, while all other parole agents of the same rank had their own offices; and for the two or three months that Ballinger was assigned to the San Bernardino office, she was not invited to a single weekly Friday lunch outing organized by Summers. Several parole agents and clerical workers informed Ballinger that "because [she] was black, she would not be invited to these lunches."
Based on the above, as relevant to this appeal, the SAC asserted causes of action under the California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.) for: discrimination on the basis of religion (§ 12940, subd. (a)) (first cause of action); failure to accommodate religious belief or observance (§ 12940, subd. (l)(1)) (second cause of action); retaliation for requesting religious accommodation (§ 12940, subd. (l)(4)) (third cause of action); race discrimination (§ 12940, subd. (a)) (fourth cause of action); harassment (§ 12940, subd. (j)) (seventh cause of action); and failure to prevent discrimination and harassment (§ 12940, subd. (k)) (eighth cause of action).
All further statutory references are to the Government Code, unless otherwise specified.
Apart from the seventh cause of action for harassment, which included Jamison as a defendant, these claims were asserted only against the Department.
2. Demurrers by the Department and Jamison.
The Department filed a demurrer to the SAC. It concurrently filed a request for judicial notice of Ballinger's original complaint and a motion to strike, contending that Ballinger's inconsistent allegations with respect to her claim of religious discrimination should be disregarded under the sham pleading doctrine. The Department pointed out that Ballinger's original complaint alleged that Jamison "attempted" to institute a program whereby Ballinger and all other parole agents would work seven days per week, but that Jamison "abandoned" that plan after the union was notified of it. This allegation was contrary to the allegation in the SAC that Jamison "prevented" Ballinger from attending church with her family on Sundays. Further, because the original complaint only alleged that Jamison attempted to have Ballinger work on Sundays, Ballinger could not state a claim against the Department for failure to accommodate her religious practice. The Department also argued, inter alia, that Ballinger's allegations that Summers placed her desk in a supply room and would not invite her to supervisor gatherings because of her race could not be construed as adverse employment actions and were insufficient to state a claim for race discrimination.
The sham pleading doctrine bars a plaintiff from amending a complaint without explanation to omit harmful allegations from a prior complaint. (Deveny v. Entropin, Inc. (2006) 139 Cal.App.4th 408, 425 (Deveny).)
In addition, the Department contended that because Ballinger did not file a complaint with the Department of Fair Employment and Housing (DFEH) until October 2016, any alleged conduct pled in the SAC that occurred prior to October 2015 was time-barred.
At the relevant time, an employee bringing a FEHA claim was required to exhaust administrative remedies by filing an administrative complaint with the DFEH within one year from the date upon which the alleged unlawful action occurred. (§ 12960, form. subd. (d); Acuna v. San Diego Gas & Electric Co. (2013) 217 Cal.App.4th 1402, 1412; see now § 12960, subd. (e) [three years to file administrative complaint]; Stats. 2019, ch. 709, § 1, eff. Jan. 1, 2020; Chin, Wiseman, Callahan & Lowe, Cal. Prac. Guide: Employment Litigation (The Rutter Group 2019) § 16:260.) The Department argued below that due to the one-year limitation period, the allegations in the SAC involving earlier incidents and alleged conduct by a previous supervisor, Jamie Saylor, who supervised Ballinger until January 2015, could not be relied upon to support Ballinger's causes of action. In the appellant's opening brief, Ballinger does not discuss her allegations relating to Saylor's conduct, and thus we do not address them.
Jamison separately demurred, contending that Ballinger failed to plead sufficient facts to state a cause of action for harassment because the allegations against her involved personnel management decisions that lacked a nexus to Ballinger's protected characteristics, and that Jamison's alleged conduct was not sufficiently severe or pervasive to alter the conditions of Ballinger's employment.
3. Ballinger's opposition to the demurrers.
In her opposition papers, Ballinger asserted her claims were well pled and that the Department's reliance on the sham pleading doctrine was meritless. She asserted: "Defendant fails to show what allegations were made in Plaintiff's Complaint that are destructive of any of Plaintiff's causes of action. Defendant identifies a few minor and non-destructive differences. . . . . [¶] Defendant notes that the original complaint states that Jamison 'attempted' to institute a weekend-work requirement and that the plan was abandoned. Defendant calls attention to the omission of this allegation from the SAC. That allegation is true. After Jamison abandoned her first attempt, she tried again in July 2016, this time with success." (Second italics added.)
We note Ballinger's characterization of the pleadings was inaccurate. The original complaint pled: in May 2016, Ballinger advised Jamison that she needed Sundays off to attend church with her children; less than two months later, i.e., by July 2016, Jamison "attempted" to require Ballinger and others to work seven days a week; Jamison then "abandoned" that plan after the union was notified of it. Subsequently, in the SAC, Ballinger alleged that in July 2016, Jamison took action to "prevent" Ballinger from attending church, and that Ballinger "was prevented" from attending church on Sundays. The SAC did not allege that Jamison abandoned her original plan and then renewed it in July 2016.
4. Hearing and trial court's ruling.
On August 27, 2018, the matter came on for hearing. The trial court indicated its tentative ruling was to sustain the demurrers without leave to amend, and it therefore was unnecessary to reach the motion to strike. Ballinger's counsel submitted on the tentative ruling.
The trial court noted "this is a case in which the plaintiff has been given more than one opportunity to amend her pleading after ample discussion on each occasion, "and that Ballinger had made "no request for leave to amend or [allege] new facts." The trial court also noted the inconsistency in Ballinger's pleadings, stating: "[A]t some point, [Defendants] attempted to tell her she couldn't have Sundays off, and at some other point now it has been changed to, well, yes, they did prevent her from having a Sunday off[.]" (Italics added.)
On September 19, 2018, the trial court entered a judgment that dismissed Ballinger's SAC with prejudice. The judgment also stated that Defendants were entitled to recover their costs pursuant to section 12965, as supported by a "memorandum of costs which may be timely filed."
On November 16, 2018, Ballinger filed a timely notice of appeal from the judgment.
CONTENTIONS
Ballinger contends the trial court erred: (1) by sustaining demurrers to the first, second, third, fourth, seventh, and eighth causes of action; and (2) by awarding costs to Defendants.
DISCUSSION
1. Standard of appellate review.
"In reviewing an order sustaining a demurrer, we examine the operative complaint de novo to determine whether it alleges facts sufficient to state a cause of action under any legal theory. [Citation.] Where the demurrer was sustained without leave to amend, we consider whether the plaintiff could cure the defect by an amendment. The plaintiff bears the burden of proving an amendment could cure the defect. [Citation.]" (T.H. v. Novartis Pharmaceuticals Corp. (2017) 4 Cal.5th 145, 162.)
2. The first three causes of action of the SAC, relating to discrimination on the basis of religion, failed to state a cause of action.
a. Ballinger's allegation that she was prevented by Jamison from attending church on Sundays is barred by the sham pleading doctrine.
(1) The sham pleading doctrine.
"Under the sham pleading doctrine, plaintiffs are precluded from amending complaints to omit harmful allegations, without explanation, from previous complaints to avoid attacks raised in demurrers or motions for summary judgment. (See Hendy v. Losse (1991) 54 Cal.3d 723, 742-743 [affirming an order sustaining defendants' demurrer without leave to amend when the plaintiff filed an amended complaint omitting harmful allegations from the original unverified complaint]; see also Colapinto v. County of Riverside (1991) 230 Cal.App.3d 147, 151 ['If a party files an amended complaint and attempts to avoid the defects of the original complaint by either omitting facts which made the previous complaint defective or by adding facts inconsistent with those of previous pleadings, the court may take judicial notice of prior pleadings and may disregard any inconsistent allegations.'].) . . . 'Allegations in the original pleading that rendered it vulnerable to demurrer or other attack cannot simply be omitted without explanation in the amended pleading. The policy against sham pleadings requires the pleader to explain satisfactorily any such omission.' (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2005) ¶ 6:708.)" (Deveny, supra, 139 Cal.App.4th at pp. 425-426, italics added.)
(2) Ballinger failed to satisfactorily explain the omission from the SAC of her earlier allegation that Jamison abandoned her plan to require Ballinger to work on Sundays.
In the original complaint, Ballinger pled that in July 2016, Jamison "attempted" to institute a seven-day-a-week work schedule, but after the union was notified of the plan, Jamison "abandoned" it.
Contrary to the established rules of pleading, the SAC simply omitted the earlier allegation that Jamison "abandoned" her plan to require Ballinger to work on Sundays. Instead, the first three causes of action of the SAC, namely, discrimination on the basis of religion in violation of FEHA, failure to accommodate religious belief or observance, and retaliation for requesting a religious accommodation, all alleged that Jamison implemented a weekend work requirement that forced Ballinger to work on Sundays and prevented her from attending church with her family. She made no attempt to explain the alteration to her pleading.
It was not until Ballinger opposed the Department's demurrer that she attempted to reconcile the original complaint with the SAC. Ballinger asserted: "Defendant notes that the original complaint states that Jamison 'attempted' to institute a weekend-work requirement and that the plan was abandoned. Defendant calls attention to the omission of this allegation from the SAC. That allegation is true. After Jamison abandoned her first attempt, she tried again in July 2016, this time with success." (Second italics added.) Ballinger makes the identical argument in her reply brief on appeal.
Like the trial court, we conclude that Ballinger's explanation is unpersuasive. The original complaint pled that in May 2016, Ballinger advised Jamison that she needed Sundays off to attend church with her family, and less than two months later, i.e., in July 2016, Jamison attempted to institute the seven-day-a-week schedule but then abandoned it, after the union was notified of the plan. This allegation in the original complaint is fundamentally at odds with Ballinger's purported explanation in her reply brief on appeal that after "Jamison abandoned her first attempt to institute a weekend work requirement, she tried it again, in July 2016; this time with success." (Italics added.)
A plaintiff may not avoid a demurrer by pleading facts or positions in an amended complaint that contradict the facts pleaded in the original complaint or by suppressing facts that prove the pleaded facts false. (State of California ex rel. Metz v. CCC Information Services, Inc. (2007) 149 Cal.App.4th 402, 412.) In view of the allegations in the original complaint, we conclude the allegation that Jamison prevented Ballinger from attending church on Sundays, which was the gravamen of the first three causes of action—discrimination on the basis of religion, failure to accommodate religious belief or observance, and retaliation for requesting religious accommodation—was improper.
Accordingly, we conclude that Ballinger's allegation in the first three causes of action that Jamison prevented her from attending church on Sundays should be disregarded under the sham pleading doctrine.
b. Ballinger's other allegations in the first three causes of action were insufficient to state a cause of action.
Setting aside Ballinger's allegation that Jamison prevented her from attending church on Sundays, we review Ballinger's various other allegations in the first three causes of action relating to religious discrimination.
(1) First cause of action alleging discrimination on the basis of religion.
Section 12940, subdivision (a) states in relevant part: "It shall be an unlawful employment practice . . . . [¶] (a) For an employer, because of the . . . religious creed . . of any person, . . . to discriminate against the person in compensation or in terms, conditions, or privileges of employment." The specific elements of a prima facie case of discrimination "may vary depending on the particular facts. [Citations.] Generally, the plaintiff must provide evidence that (1) he was a member of a protected class, (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 motive. [Citations.]" (Guz v. Bechtel National Inc. (2000) 24 Cal.4th 317, 355 (Guz).)
With respect to pleading the essential element that plaintiff suffered an adverse employment action, we are guided by Thomas v. Department of Corrections (2000) 77 Cal.App.4th 507 (Thomas). The Thomas court affirmed a judgment sustaining a demurrer by the Department of Corrections to a complaint by a corrections officer alleging racial and gender discrimination and retaliation, all predicated on violations of FEHA. (Id., at pp. 508-509.)
Thomas states: "The inquiry as to whether an employment action is adverse requires a case-by-case determination based upon objective evidence. [Citation.]" (Thomas, supra, 77 Cal.App.4th at p. 510.) A " 'materially adverse change might be indicated by a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices that might be unique to a particular situation.' [Citation.] The employment action must be both detrimental and substantial. [Citation.]" (Id. at p. 511.)
Applying these principles, Thomas stated: "We must analyze [plaintiff's] complaints of adverse employment actions to determine if they result in a material change in the terms of her employment, impair her employment in some cognizable manner, or show some other employment injury. Even if we broadly interpret the definition of adverse employment action based upon the sweeping provisions of the California Fair Employment and Housing Act enacted to 'protect and safeguard the right and opportunity of all persons to seek, obtain, and hold employment without discrimination or abridgment on account of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, or sexual orientation' (Gov. Code, § 12920), we do not find that [plaintiff's] complaint alleges the necessary material changes in the terms of her employment to cause employment injury. Most of the actions upon which she relies were one time events, such as a delayed check, an early job change, and failure to receive one overtime check. The other allegations, such as the general assertion that [plaintiff] was assigned more duties than other employees in the same unit, are not accompanied by facts which evidence both a substantial and detrimental effect on her employment." (Id. at pp. 511-512, italics added.)
Here, Ballinger's first cause of action of the SAC, apart from making the untenable allegation that Jamison prevented her from attending church on Sundays, pled in conclusionary language that Jamison cut her hours and scrutinized her work. Ballinger also pled that Jamison enlisted the aid of another employee to monitor her and report on her activities, and that Jamison "fabricated incidents for the purpose or berating and disciplining plaintiff." Ballinger's allegations are even weaker than the averments which the Thomas court found to be inadequate. Unlike the plaintiff in Thomas, who alleged that she was assigned "more duties than other employees in the same unit" (Thomas, supra, 77 Cal.App.4th at p. 512), Ballinger did not plead that other employees in her unit did not have their hours cut, nor did she plead that her co-workers did not have their work scrutinized. We also note that supervision and evaluation of employees is inherent in the employment relationship. (Reno v. Baird (1998) 18 Cal.4th 640, 646-647 [commonly necessary personnel management actions include performance evaluations].) Additionally, Ballinger failed to specify how any alleged fabrication of incidents by Jamison had an impact on her standing as an employee of the Department. Thus, in view of Ballinger's failure to set forth sufficient facts to show she suffered a materially adverse employment action, we conclude that she failed to allege sufficient facts to state a prima facie case of discrimination on the basis of religion.
(2) Second cause of action alleging failure to accommodate religious observance.
Here, there were no pertinent factual allegations apart from Ballinger's assertion that she was prevented from attending church on Sundays, an allegation that is disregarded based on the sham pleading doctrine.
(3) Third cause of action, labeled "retaliation" for requesting a religious accommodation.
"[R]etaliatory intent is an essential element of a cause of action for unlawful retaliation under FEHA." (Joaquin v. City of Los Angeles (2012) 202 Cal.App.4th 1207, 1230.) Here, Ballinger alleged that Jamison cut her hours, scrutinized her work, and had her activities monitored. However, as with the first cause of action, Ballinger did not allege that Jamison treated her co-workers any differently. In addition, the third cause of action did not plead that Jamison reduced Ballinger's hours and scrutinized her work in retaliation for Ballinger's having requested a religious accommodation. Given the absence of any factual allegation by Ballinger that Jamison retaliated against her for having sought a religious accommodation, the retaliation claim failed to set forth sufficient facts to state a cause of action.
While the third cause of action was captioned "retaliation," the caption is not considered a part of the pleader's statement of claim. (United Food & Commercial Workers Union v. Superior Court (2000) 83 Cal.App.4th 566, 571, fn. 4.)
For these reasons, the trial court properly sustained demurrers to the first three causes of action.
3. Ballinger's fourth cause of action, alleging race discrimination, failed to state a cause of action.
a. General principles.
Under FEHA, it is unlawful for an employer, because of a protected classification, such as race, to discriminate against an employee "in compensation or in terms, conditions, or privileges of employment." (§ 12940, subd. (a).) Generally, as noted, to allege a prima facie case for discrimination in violation of FEHA, a plaintiff must establish that (1) she was a member of a protected class, (2) she was performing competently in the position she held, (3) she suffered an adverse employment action, and (4) some other circumstance suggests discriminatory motive. (Guz, supra, 24 Cal.4th 355.)
b. Allegations pertaining to Jamison failed to state a claim for race discrimination.
In the fourth cause of action, with respect to supervisor Jamison, Ballinger pled in relevant part: Jamison singled her out, made her work more difficult by scrutinizing her work, monitored her activities, and disciplined her for actions that Jamison directed her to perform. The sole allegation relating to race discrimination is that when Ballinger complained to a colleague about Jamison's conduct, the colleague told Ballinger that Jamison and the administration "were intimidated by Plaintiff because Plaintiff was a gay black woman."
Ballinger has abandoned her claim that she was subjected to discrimination on the basis of sexual orientation.
Thus, Ballinger's entire theory of race discrimination with respect to Jamison is predicated on an alleged remark by an unidentified colleague that Jamison was intimidated by Ballinger because she "was a gay black woman." The complaint does not allege that Jamison's alleged feeling of intimidation had any bearing on the manner in which she supervised Ballinger, let alone that Jamison acted with racial animus in her supervision of Ballinger. Ballinger's allegation that Jamison was intimidated by her on account of her race, without more, is insufficient to allege a prima facie case of race discrimination. Therefore, we conclude that Ballinger failed to allege sufficient facts to state a claim for race discrimination based on Jamison's conduct in supervising her.
c. Allegations pertaining to supervisor Summers likewise failed to state a claim for race discrimination.
(1) Ballinger's office assignment.
Ballinger pled that in September of 2017, upon her transfer to the San Bernardino office, where she spent two or three months, Summers placed her desk in a supply room isolated from other employees, while all other parole agents at her level, Parole Agent II, had their own offices. Notably, Ballinger did not even allege there were vacant offices available that Summers refused to make available to her. Ballinger's allegation that she was the sole employee of her rank who did not have her own office is insufficient to state a claim for disparate treatment based on race.
(2) Ballinger's exclusion from Friday lunch outings.
Ballinger also pled that Summers organized Friday lunch outings to which Ballinger was not invited during the two or three months that she was assigned to the San Bernardino office, and that several parole agents and clerical staff members informed Ballinger that she was not invited to these lunches due to her race. Further, all non-black parole agents of her rank were invited to these outings.
The issue presented is whether Ballinger's alleged exclusion from the Friday lunch outings on account of her race amounted to an adverse employment action, which is an essential element of a cause of action for discrimination.
An adverse employment action requires a substantial adverse change in the terms and conditions of the plaintiff's employment, such as termination, demotion, or denial of an available job. (Guz, supra, 24 Cal.4th at p. 355; Holmes v. Petrovich Development Co., LLC (2011) 191 Cal.App.4th 1047, 1063.) However, "the determination of what type of adverse treatment properly should be considered discrimination in the terms, conditions, or privileges of employment is not, by its nature, susceptible to a mathematically precise test, and the significance of particular types of adverse actions must be evaluated by taking into account the legitimate interests of both the employer and the employee. Minor or relatively trivial adverse actions or conduct by employers 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, but adverse treatment that is reasonably likely to impair a reasonable employee's job performance or prospects for advancement or promotion falls within the reach of the antidiscrimination provisions of sections 12940(a) and 12940(h).)" (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1054-1055, fn. omitted, italics added (Yanowitz).)
In reviewing the sufficiency of the pleading, we analyze Ballinger's "complaints of adverse employment actions to determine if they result[ed] in a material change in the terms of her employment, impair[ed] her employment in some cognizable manner, or show[ed] some other employment injury." (Thomas, supra, 77 Cal.App.4th at p. 511.) As indicated, Ballinger's claim of an adverse employment action did not involve termination, demotion, or denial of an available job (Guz, supra, 24 Cal.4th at p. 355), but rather, her exclusion from Friday lunch outings. For such adverse treatment to be actionable under FEHA, Ballinger would have had to allege that not being included in the Friday lunches was reasonably likely to impair "a reasonable employee's job performance or prospects for advancement or promotion." (Yanowitz, supra, 36 Cal.4th at pp. 1054-1055.)
Here, there was no allegation by Ballinger that her failure to be included in Friday lunch outings during the two or three months that she worked at the San Bernardino site on a temporary assignment was reasonably likely to impair her job performance or prospects for advancement or promotion. Viewing Ballinger's allegations in light of the governing law, we conclude she failed to plead an adverse employment action and thus failed to state a cause of action for race discrimination.
4. Seventh cause of action alleging harassment on the basis of both race and religion.
In the seventh cause of action, which named both Jamison and the Department, Ballinger pled she was harassed by Jamison because she "considered gay black women to be intimidating," and because Jamison did not want Ballinger to practice her religion.
Based on our review of the SAC, we conclude Ballinger failed to plead sufficient facts to show that any alleged conduct by Jamison was motivated by racial animus. Our discussion concerning the fourth cause of action for racial discrimination is equally applicable to the claim of racial harassment in the seventh cause of action. With respect to the fourth cause of action, we determined that Ballinger's allegation that Jamison was "intimidated" by her on account of her race, without more, is insufficient to allege a prima facie case of race discrimination. Ballinger's assertion that Jamison perceived black gay women to be intimidating, without more, likewise is insufficient to state a claim for racially motivated harassment in violation of the FEHA.
Further, Ballinger failed to allege sufficient facts to state a claim for harassment on the basis of religion. As discussed, pursuant to the sham pleading doctrine we disregard Ballinger's allegation that Jamison harassed her by "prevent[ing] her from attending church with her family," which is the basis of Ballinger's claim of religious harassment.
Accordingly, Ballinger failed to state a cause of action under FEHA for harassment on the basis of either race or religion.
5. Eighth cause of action for failure to prevent discrimination.
The eighth cause of action against the Department alleged a violation of section 12940, subdivision (k), which makes it an unlawful employment practice for an employer to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring.
As discussed above, Ballinger failed to state a cause of action for either discrimination or harassment. There cannot be a claim for failure to take reasonable steps necessary to prevent discrimination or harassment under section 12940, subdivision (k), if there is no actionable claim of discrimination or harassment. (Dickson v. Burke Williams, Inc. (2015) 234 Cal.App.4th 1307, 1314-1318.) Therefore, the eighth cause of action failed to state a claim against the Department.
6. No issue on appeal as to denial of leave to amend.
"[W]hether leave to amend should have been granted is reviewed under the abuse of discretion standard, although error is shown if there is any reasonable probability an amendment that cures the defect can be made. Appellants bear the burden on appeal of showing a reasonable possibility exists that the complaint can be successfully amended. [Citation.]" (Fischer v. Time Warner Cable Inc. (2015) 234 Cal.App.4th 784, 790.)
Here, Ballinger elected to stand on her pleadings in the trial court, and does not contend in her appellate briefs that leave to amend is warranted. Therefore, there is no issue in that regard.
7. Ballinger is not aggrieved by the provision in the judgment that Defendants were entitled to costs under section 12965 because no costs were ever awarded.
Lastly, we review the provision in the judgment that Defendants "shall recover from Plaintiff costs of suit as provided by . . . section 12965."
Ballinger asserts that a prevailing defendant can only recover costs under section 12965, including attorney fees, if the action was objectively without foundation when brought, or the plaintiff continued to litigate after it clearly became so (Williams v. Chino Valley Independent Fire Dist. (2015) 61 Cal.4th 97, 115), and Ballinger contends that her action was not frivolous.
Defendants agree with Ballinger's articulation of the legal standard for an award of costs under section 12965, and argue that because the trial court found that Ballinger did not adequately plead a viable cause of action, despite being given repeated opportunities to amend, the trial court properly ruled that Defendants were entitled to recover costs under section 12965.
It appears the trial court erred in ruling that Defendants were entitled to costs under section 12965 because Defendants had not brought a motion to show that costs were recoverable pursuant to the applicable legal standard, and further, the trial court did not make the required findings that the standard had been met. (Leek v. Cooper (2011) 194 Cal.App.4th 399, 420.) Nonetheless, Ballinger is not aggrieved by the trial court's ruling because, as established in the parties' letter briefs to this court, the trial court did not subsequently award any costs to Defendants. Therefore, the issue requires no further discussion as any error in this regard was harmless.
DISPOSITION
The judgment is affirmed. The parties shall bear their respective costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EDMON, P. J. We concur:
LAVIN, J.
Retired Presiding Justice, Division Four, of the Court of Appeal, Second Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.