Judge: Blaine K. Bowman, Case: 37-2023-00029582-CU-OE-NC, Date: 2024-01-12 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - January 11, 2024

01/12/2024  10:00:00 AM  N-31 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Blaine K. Bowman

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Civil - Unlimited  Other employment Motion Hearing (Civil) 37-2023-00029582-CU-OE-NC CARREON VS 24 HOUR FITNESS USA, LLC CAUSAL DOCUMENT/DATE FILED: Motion - Other, 12/15/2023

The Motion for Judgment on the Pleadings brought by defendant 24 Hour Fitness USA LLC (the Employer) is DENIED. The time to file a responsive pleading shall be as set forth in California Rules of Court, rule 3.1320.

The Request for Judicial Notice brought by the Gym is GRANTED pursuant to Evidence Code § 451, et seq. However, the Court notes that the requested judicial notice is of an order by a trial court in Alameda County granting summary adjudication in a sexual harassment case. Given that trial court rulings are not binding and have no precedential effect, as well as the distinguishing factor that the submitted ruling was issued on a summary adjudication motion rather than a motion for judgment on the pleadings (the rough equivalent of a demurrer in terms of applicable legal standards) as is the case in the instant scenario, the submitted evidence is of virtually no value to the outcome of the present motion.

Background This case previously came on for hearing on a Motion to Compel Arbitration. At that time, relying on the same pleading that is the operative pleading for purposes of the instant motion, this Court summarized the factual background allegations as set forth below.

This is an employment discrimination and harassment case. It is alleged that plaintiff Dan Carreon (Plaintiff) was hired to work as a 'Club Attendant' at the Gym at a rate of $17.50 per hour on June 12, 2022. The alleged discrimination and harassment began about six months later and took place in the window of time between January 9, 2023 and March 2, 2023, when Plaintiff resigned from his position.

The allegations appear to mix a few different bases of discrimination and harassing activity – almost all of which came from one particular coworker, namely, Trent Soffel (Mr. Soffel). Mr. Soffel was a 'Sales/Service Manager.' In the earlier part of the period of time when the discrimination and harassment was allegedly taking place, the target of Mr. Soffel's conduct appears to have been racial, as follows: --references to Plaintiff look a lot like men in Mr. Soffel's hometown of Yucca Valley --references to Mr. Soffel not being able to get along with Mexican-Americans --Mr. Soffel showing video of his brothers assaulting and beating a Hispanic man unconscious while exiting a club/bowling alley, accompanied by comments that 'that Mexican was trying to fuck with me, so my brothers did what they needed to do.' --comments that 'whoever messes with me will get to meet my buddies Smith and Wesson,' as well as references to a firearm that Mr. Soffel had received as a gift from one of his brothers Calendar No.: Event ID:  TENTATIVE RULINGS

3045442 CASE NUMBER: CASE TITLE:  CARREON VS 24 HOUR FITNESS USA, LLC  37-2023-00029582-CU-OE-NC The discriminatory conduct appears to have morphed a bit after this time period to begin to involve a medical disability, as follows: --Plaintiff began to feel pain due to a lump on his arm and went to the emergency room --Plaintiff was put on 'light duty' by a doctor --Mr. Soffel still made Plaintiff wipe down every piece of gym equipment despite being on 'light duty,' thereby causing Plaintiff's arm lump injury to flare up --Plaintiff having to have surgery to remove the bacterial sack that was creating the lump When Plaintiff returned to work after the medical procedure, the racial discrimination apparently continued, as follows: --Mr. Soffel began asking Plaintiff if he 'just crossed the border from Tijuana' --Mr. Soffel referred to Plaintiff as 'Mexican Mr. Clean' --Mr. Soffel saying Plaintiff should have to clean the gym pool 'since he is used to crossing rivers' Thereafter, a certain amount of sexual discrimination began to take place, as follows: --Mr. Soffel mimicked gestures of oral sex and said that a gym member was going to do that to Plaintiff --Mr. Soffel made fun of Plaintiff's genitals in front of others --Mr. Soffel referred to a gym member on her way out by saying, 'I bet her pussy looks like hamburger meat' --Mr. Soffel grabbed the chest area of Plaintiff (and another coworker in sales and service) and squeezing and twisting their chests --Mr. Soffel slapped Plaintiff intensely on the back Plaintiff originally sued the Employer for: (1) discrimination in violation of the Fair Employment and Housing Act (FEHA) (2) harassment in violation of the FEHA (3) failure to provide reasonable accommodation (4) intentional infliction of emotional distress However, as a result of the Motion to Compel Arbitration, Plaintiff was ordered to arbitrate all of his claims except for those based on sexual assault and/or sexual harassment. The Employer now moves for judgment on the pleadings as to those claims on grounds that: (1) they were too infrequent, isolated, and occasional to amount to actionable sexual assault and/or sexual harassment, and (2) the actions taken within the workplace by Mr. Soffel were not 'because of' Plaintiff's sex, gender, or sexual orientation (or perceived sexual orientation).

Merits of Motion To the extent that ruling on this motion is challenging, it is challenging due to context. As noted above, Plaintiff's full and complete original complaint alleged acts of racial discrimination and medical disability discrimination that appeared to be the stronger of Plaintiff's claims. Given that Plaintiff had signed an arbitration agreement with his Employer, however, there was an overall appearance from the commingled claims the those predicated on sex-based discrimination had greater value for their legal effect of circumventing the arbitration process, while those predicated on racial and/or medical disability held the stronger value in terms of prevailing on their underlying merit. Because of this, read in context, there is a bit of a temptation to diminish the sex-based claims as the weakest of the bunch – so weak that they may not have sufficient strength when not considered alongside the other ills Plaintiff allegedly suffered. The Employer makes a strong argument in terms of attempting to so diminish the sex-based claims.

But, again, context is the challenge of ruling on the instant motion. On a motion for judgment on the Calendar No.: Event ID:  TENTATIVE RULINGS

3045442 CASE NUMBER: CASE TITLE:  CARREON VS 24 HOUR FITNESS USA, LLC  37-2023-00029582-CU-OE-NC pleadings (which is roughly similar to a demurrer in terms of applicable legal standards), allegations are to be indulged in favor of the complaining party. (Weil and Brown, California Practice Guide: Civil Procedure Before Trial (The Rutter Group, 2023) ¶ 7:275 ('A motion for judgment on the pleadings has the same function as a general demurrer but is made after the time for demurrer has expired..., the rules governing demurrers apply.') (citations omitted).) 'Clarity of pleading is not essential to overcome a general demurrer...' (Weil and Brown, California Practice Guide: Civil Procedure Before Trial (The Rutter Group, 2023) ¶ 7:42.5, citing Johnson v. Mead (1987) 191 Cal.App.3d 156, 160.) Plaintiff points to a number of allegations, all of which are recited above, but which will be repeated here to sharpen the focus of the present inquiry: --Mr. Soffel mimicked gestures of oral sex and said that a gym member was going to do that to Plaintiff --Mr. Soffel made fun of Plaintiff's genitals in front of others --Mr. Soffel referred to a gym member on her way out by saying, 'I bet her pussy looks like hamburger meat' --Mr. Soffel grabbed the chest area of Plaintiff (and another coworker in sales and service) and squeezing and twisting their chests --Mr. Soffel slapped Plaintiff intensely on the back (Complaint ¶¶ 17-19.) Selecting one of these specific allegations, the Employer argues that: 'Plaintiff alleges that Soffel grabbed his and another male coworker's chest squeezing and twisting their chests – but this is in no way sexual in nature and Plaintiff does not allege that it is.' (Motion, p. 7:21-23 (citation omitted) (emphasis added).) The Employer's assertion is incorrect – at least on demurrer – because it is contextual. It is not axiomatically true that the grabbing of one's coworker's chest is, by definition, never sexual in nature – to say nothing of the additional actions of twisting and squeezing.

Though the Employer may wish to assert that this particular touching was not sexual in nature, a motion for judgment on the pleadings is not an evidentiary motion wherein both parties are free to make factual assertions and the Court free to engage in a weighing of evidence. On a motion for judgment on the pleadings, like a general demurrer, Plaintiff's factual assertions rule the day – and if Plaintiff's allegation is that a coworker grabbed, squeezed, and twisted his chest, the question of whether that physical act was sexual in nature is entirely contextual.

The Court is mindful of other contextual clues that surround the allegations here, namely, the setting of a fitness gym. In such settings, a personal trainer may touch a muscle in order to assist a client through an exercise movement or a fellow gym-goer may throw out a compliment about another's physique. In the world of sports, there are certain kinds of touch that are common and non-sexual, but that, in a different context might be considered inappropriate. Herein lies the rub of the instant case. The actions alleged in the instant case may not turn out to have been sexual in nature, but given the shades of meaning and context at play, it is not for this Court, on a 'demurrer-like' standard, to determine. The weighing of credibility and the considering of context will happen at a different stage of litigation, and, however tangential the acts that were allegedly sex-based may be in relation to the other actions that occurred (i.e. the racial and disability discrimination) it is not for this Court to make the factual determination at the outset that they were 'in no way sexual in nature.' As to the Employer's other argument that the actions in question were not 'because of' sex, gender, or sexual orientation (or perceived sexual orientation), the Employer's reliance on Kelley v. The Conco Companies (2011) 196 Cal.App.4th 191 is misplaced. Again, the Kelley case was decided on a summary judgment standard where evidence was to be produced and, to prevail, the plaintiff had to show a modicum of evidence that made the factual question of whether the harassing actions were taken 'because of' sex triable. The Kelley case is helpful, however, for identifying the legal standard that: 'What matters, however, is not whether the two sexes are treated differently in the workplace, but whether one of the sex[es] is treated adversely to the other sex in the workplace because of their sex.' Kelley, supra, 196 Cal.App.4th at 207, citing Oncale v. Sundowner Offshore Services, Inc. (1998) 523 U.S. 75, 80, also citing Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 279-280 (emphasis in original). While that standard, and the connection it requires, does appear to place a higher hurdle for Plaintiff's claims to ultimately clear, on the demurrer-like standard applicable to a motion for Calendar No.: Event ID:  TENTATIVE RULINGS

3045442 CASE NUMBER: CASE TITLE:  CARREON VS 24 HOUR FITNESS USA, LLC  37-2023-00029582-CU-OE-NC judgment on the pleadings, this Court cannot reach the conclusion that the Kelley court made since the Kelley court had the benefit of production of the respective evidence held by both parties and the analysis of whether that evidence amounted to a triable issue of fact on a legal issue on which the outcome of the case turned. All this Court has are allegations that are to be indulged at this juncture.

Finally, the Employer argues that the acts alleged were not sufficiently severe or pervasive, as they happened intermittently over a nine-month period. What is 'severe' and 'pervasive' is subject to factual context, and, while it is possible for allegations to be too conclusory or summary in nature, the arc of the narrative depicted in the operative complaint shows a series of incidents whereby context and factual characterization matters. Though the Employer cites cases for the principle that, for example, nine offensive comments over a four-month period are not sufficient to be pervasive, such authority was, again, determined on summary judgment – not on the standard applicable to a motion for judgment on the pleadings and/or demurrer. See McCoy v. Pacific Maritime Assn. (2013) 216 Cal.App.4th 283.

It would appear that the Employer has some strong arguments to be made under the different legal standards that apply to summary judgment motions. However, the instant motion is not a summary judgment motion, such that arguments that may be well-taken at a later stage are simply unavailing under the lenient and favorable standards applicable to a complaining party on demurrer.

Unless the ruling(s) above indicate that an appearance is necessary, parties who wish to submit, who are satisfied with the above tentative ruling(s), and/or who do not otherwise wish to argue the motion(s) are encouraged to give notice to the Court and each other of their intention not to appear.

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