Judge: Anne Richardson, Case: 22STCV34372, Date: 2024-10-04 Tentative Ruling

Case Number: 22STCV34372    Hearing Date: October 4, 2024    Dept: 40

Superior Court of California

County of Los Angeles

Department 40

I. Background

A. Pleadings

Plaintiff Liddie Bythwood (Bythwood) sues Defendants Los Angeles County Department of Social Services (LA County), Gary Aviles (Aviles), and Does 1 through 10 (collectively Defendants), pursuant to an October 26, 2022, Complaint alleging causes of action for (1) Hostile Work Environment Harassment in Violation of FEHA and (2) Failure to Prevent and Remedy Harassment.

Defendant LA County hired Bythwood as an Eligibility Worker on September 13, 2000. Beginning in July 2021, Bythwood began experiencing sexual harassment from Defendant Aviles. Between July 2021 and February 2022, Aviles repeatedly made sexually inappropriate comments and gestures to Bythwood. On March 9, 2022, Bythwood lodged a complaint about Aviles with the District Director. Aviles retired in April 2022.

B. Motion Before the Court

On July 16, 2024, Defendants filed the instant motion for summary judgment, or in the alternative, summary adjudication.

On September 20, 2024, Bythwood filed an opposition to the motion.

On September 30, 2024, Defendants filed a reply.

II. Motion

A. Evidentiary Objections

In granting or denying a motion for summary judgment or summary adjudication, the court need rule only on those objections to evidence that it deems material to its disposition of the motion. Objections to evidence that are not ruled on for purposes of the motion shall be preserved for appellate review. (Code Civ. Proc., § 437c, subd. (q).) Evidentiary objections not made either in writing or orally shall be deemed waived. (Code Civ. Proc., § 437c, subd. (b).) 

Plaintiff’s Objections to Declaration of Gary Aviles

No 1: OVERRULED

Plaintiff’s Objections to Declaration of Ben Stormer

            Nos 1-5: Not ruled on as not material to disposition of ruling

Defendant’s Objections

            Nos 1-6, 9, 12-20: Not ruled on as not material to disposition of ruling

Nos 7-8, 10-11: OVERRULED

B. Legal Standard

A motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact for trial or that the moving party is entitled to a judgment as a matter of law. (Code of Civ. Proc., § 437c, subd. (c).) 

A party may also seek summary adjudication of select causes of action, affirmative defenses, claims for damages, or issues of duty, which may be made by a standalone motion or as an alternative to a motion for summary judgment and proceeds in all procedural respects like a motion for summary judgment, but which must completely dispose of the challenged cause of action, affirmative defense, claim for damages, or issue of duty. (Code Civ. Proc., § 437c, subds. (f)(1)-(2), (t).) 

The moving party bears the initial burden of production to make prima facie showing no triable material fact issues. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) This burden on summary judgment or adjudication “is more properly one of persuasion rather than proof, since he must persuade the court that there is no material fact for a reasonable trier of fact to find, and not to prove any such fact to the satisfaction of the court itself as though it were sitting as the trier of fact.” (Id. at p. 850, fn. 11.) 

If the moving party meets this burden, the burden shifts to the opposing party to make a rebuttal prima facie showing that a triable issue of material fact exists. (Id. at p. 849.) 

“[I]n ruling on motions for summary judgment courts are to ‘“liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.”’ [Citations].” (Cheal v. El Camino Hospital (2014) 223 Cal.App.4th 736, 760.) 

C. Analysis

                           i.          Issue One

LA County moves for summary judgment on the first cause of action for sexual harassment on the basis that it must fail because Bythwood did not suffer harassment after LA County had notice of the alleged harassment.  

An employer may be strictly liable for harassment of an employee by an agent or supervisor. (State Dept. of Health Services v. Superior Court (2003) 31 Cal.4th 1026, 1034 (State Dept. of Health Services); Fiol v. Doellstedt (1996) 50 Cal.App.4th 1318, 1331; John Doe v. Capital Cities (1996) 50 Cal.App.4th 1038, 1052.) 

Under FEHA, a supervisor is “any individual having the authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or the responsibility to direct them, or to adjust their grievances, or effectively to recommend that action, if, in connection with the foregoing, the exercise of that authority is not of a merely routine or clerical nature, but requires the use of independent judgment. (Govt. Code §12926 subd. (t).)

Alternatively, an employer is only liable for harassment by a nonsupervisory employee if “if the employer (a) knew or should have known of the harassing conduct and (b) failed to take immediate and appropriate corrective action.” (Myers v. Trendwest Resorts, Inc.  (2007) 148 Cal.App.4th 1403, 1419-1420; accord Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 707 [“When the harasser is a nonsupervisory employee, employer liability turns on a showing of negligence (that is, the employer knew or should have known of the harassment and failed to take appropriate corrective action.”)].)

LA County argues that Aviles was not Bythwood’s supervisor, and thus strict liability does not apply. Bythwood testifies that Aviles was her immediate supervisor in the early 2000’s but that between June 2021 and February 2022 her direct supervisor was Trinidad Buenrostro. (MSJ, Ex. 2, Bythwood Depo. pp. 54:20-25, 57:4-7.) Bythwood further testified that between June 2021 and February 2022, Aviles did not have the power to hire, transfer, suspend, lay off, discharge, discipline, or promote her, nor did he prepare her performance evaluations. (MSJ, Ex. 2, Bythwood Depo. pp. 56:20-25, 59:9-60:2.) LA County thus argues that the negligence, rather than strict negligence standard applies, and it is only liable if the County knew or should have known of the harassment and failed to take appropriate corrective action.

Bythwood first reported Aviles’ behavior to a supervisor on March 9, 2022, and she testified that after that date, she did not experience any further sexual harassment and did not see Aviles again. (MSJ, Ex. 2, Bythwood Depo. pp. 82:1-8.) Aviles retired from his position in April 2022. (Aviles Decl. ¶ 2.) Thus, LA County argues that it only knew of the behavior as of March 9 and it did not fail to take appropriate corrective action because the behavior did not continue after the County had notice, and Aviles subsequently retired.

Thus, LA County has met its prima facie burden of production to show that Aviles was not in a supervisory role when he harassed Bythwood, and that she did not experience harassing conduct after LA County was aware of the behavior.

The burden then shifts to Bythwood to show that a triable issue of material fact exists.

Bythwood argues that there are triable issues of fact as to whether Aviles was a supervisor under FEHA. Bythwood argues that Chapman v Enos illustrates that a harasser need not be a direct supervisor for FEHA employer liability. In Chapman v. Enos (2004) 116 Cal.App.4th 920, 930 (Chapman), the Court of Appeal recognized that an individual who did not have the authority to hire, fire, promote or transfer could qualify as a “supervisor” where he had the responsibility to direct the plaintiff employee’s day-to-day duties. The parties do not dispute that Aviles was a supervisor in the Medi-Cal department where Bythwood worked. (UMF No. 2) Bythwood argues that Aviles had “supervisory authority and responsibility” for her work. (Opp. p. 10:1-2.) Bythwood testified that she would sometimes go into Aviles’ office to ask questions if she needed help on a case or let him know when she arrived at work because her “supervisor gets in late and he might have been the only supervisor there.” (Opp,. Ex. A, Bythwood Depo. 72:11-23.) Aviles clearly had supervisory authority, ratified by LA County, over the department in which Bythwood worked during the time he was harassing Bythwood.

In reply, LA County cites State Dept. of Health Services for the assertion that an employer is only strictly liable when the harasser “is the victim’s supervisor…” (State Dept. of Health Services, supra, 31 Cal.4th 1026, 1040-1041.) However, when read in context, this phrase does not support LA County’s argument. The full sentence is as follows: “The FEHA imposes two standards of employer liability for sexual harassment, depending on whether the person engaging in the harassment is the victim's supervisor or a nonsupervisory coemployee.” (State Dept. of Health Services, supra, 31 Cal.4th 1026, 1040-1041.) The Supreme Court was not differentiating between a victim’s direct supervisor and another supervisor, but rather was distinguishing a supervisory position from a “nonsupervisory coemployee” position. Aviles was not Bythwood’s nonsupervisory colleague. He was a supervisor, in her department.

Further, the plain language of Government Code section 12926 subdivision (t) defines a supervisor as an individual with the authority to “hire, transfer, […] assign, reward or discipline other employees, or the responsibility to direct them… (Govt. Code §12926 subd. (t).) Aviles had such supervisory authority over employees in Bythwood’s department.  

Thus, Bythwood has met her burden to show that a triable issue of material fact exists as to whether Aviles is a supervisor under the FEHA.

                         ii.          Issue Two

LA County moves for summary judgment on the second cause of action for failure to prevent harassment on the basis that it must fail because there was no actionable harassment, and the County took steps to prevent it.

LA County argues that “[w]here there has been no harassment, the employer cannot be liable for failure to prevent such actions from occurring. (Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th 280, 289.)

However, as described above, there is a triable issue of material fact as to whether there was actionable harassment.

Accordingly, LA County has not met its burden to show no triable material fact issues. 

III. Conclusion

Defendants’ Motion for Summary Judgment, or in the Alternative, Summary Adjudication is DENIED.