Judge Bruce G. Iwasaki, Case 20STCV46794 2023-03-09 Tentative Ruling

Tentative Ruling: The Motion for Summary Judgment is denied. Summary adjudication is granted as to the third cause of action for retaliation and fourth cause of action for harassment, and is otherwise denied.

This is an employment action. Guillermo Lopez (Plaintiff or Lopez) sued Motion Picture Association Inc. (MPA) and An Hilven (Hilven) (collectively Defendants) for age discrimination, national origin/ancestry discrimination, retaliation, harassment, and failure to prevent discrimination, harassment, and retaliation.

Lopez worked at MPA since 2002 and was eventually promoted to “Special Investigations Manager.” In that role, Lopez conducted investigations into alleged instances of piracy and assisted law enforcement and prosecutors across different countries.

In mid-2017, Jan van Voorn (Van Voorn) transferred to MPA’s Los Angeles office and became Lopez’s second line supervisor. At that time, Lopez’s title changed to “Senior Internet Investigator” and MPA shifted from a focus of source piracy (which involve physical goods such as counterfeit DVDs and recording devices in theaters) to internet piracy (unauthorized streaming and downloading). There were seven members in Lopez’s team.

In August 2019, Hilven became Lopez’s direct supervisor. Lopez states that Hilven was rude to him, made him do menial tasks, and forced him to do more work than his co-workers. In late 2019, Lopez then requested to meet with MPA’s Vice President of Human Resources, Jason Monagas (Monagas), to discuss his concerns with Hilven. Monagas reportedly told Lopez that he would set up a meeting to try and resolve the issues. The meeting never occurred, and Lopez was terminated on February 4, 2020.

Defendant moves for summary judgment or adjudication of all claims. Plaintiff filed an opposition and Defendant filed a Reply.

Plaintiff filed objections to Defendants’ Declaration of Monagas and Hilven. The Court overrules both objections.

As part of their reply, Defendants filed objections to the declarations of Plaintiff and Matthew Fulton, Plaintiff’s former supervisor. Many of the objections go to the weight of evidence rather than admissibility and constitute improper argument on the merits. The Court sustains Objections numbers 12, 29, and 35 and overrules the remaining objections.

Since Defendant failed to address all the alleged adverse actions in the Complaint, summary adjudication is denied as to the discrimination claims. However, as Plaintiff’s vague declaration is insufficient to show pretext and Defendants’ purported conduct toward him was not severe or pervasive, summary adjudication is granted on retaliation and harassment.

A party may move for summary judgment “if it is contended that the action has no merit or that there is no defense to the action or proceeding.” (Code Civ. Proc., § 437c,¿subd. (a).) “[I]f all the evidence submitted, and all inferences reasonably deducible from the evidence and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law,” the moving party will be entitled to summary judgment. (Adler v. Manor Healthcare Corp.¿(1992) 7 Cal.App.4th 1110, 1119.)

The moving party has the initial burden of production to make¿a prima facie¿showing of the nonexistence of any triable issue of material fact, and if he does so, the burden shifts to the opposing party to make¿a prima facie¿showing of the existence of a triable issue of material fact. (Aguilar v. Atlantic Richfield Co.¿(2001) 25 Cal.4th 826, 850; accord Code Civ. Proc., § 437c,¿subd. (p)(2).) A Defendant moving for summary judgment may meet its initial burden by proving that for each cause of action alleged, plaintiff cannot establish at least one element of the cause of action. (Code Civ. Proc., § 437c(p)(2).)

The same standards for admissibility govern supporting and opposing affidavits as evidence in a motion for summary judgment (Code Civ. Proc., § 437c subd. (d)), but the opposition declarations are liberally construed while the moving party’s evidence is strictly scrutinized. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768.)

First and second causes of action – discrimination based on age and national origin/ancestry

Defendants argue that Lopez cannot prove a prima facie case of discrimination because he was not performing competently at the time of termination, was not replaced by someone younger, and there was no indicia of discriminatory motive. Lopez asserts that the Complaint addresses other materially adverse actions and because Defendants only address the termination, summary adjudication must be denied. Further, Plaintiff argues as reasons for pretext that he was not incompetent based on his performance evaluations, MPA failed to train him in his duties, and Defendants treated his younger co-workers more favorably.

The Fair Employment and Housing Act (FEHA) prohibits discrimination in employment based on membership in a protected class. (Gov. Code, § 12940, subd. (a).) The employee must establish a prima facie case of unlawful discrimination or retaliation. (McDonnell Douglas Corporation v. Green (1973) 411 U.S. 792, 802; Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 354.) Upon such showing, the employer must then articulate a legitimate reason for taking the challenged adverse employment action. (Id.) Finally, the burden shifts back to the employee to demonstrate that the employer’s proffered legitimate reason is a pretext for discrimination or retaliation. (McDonnell Douglas Corporation, supra, 411 U.S. at p. 804.)

On summary judgment, “[i]f the employer presents admissible evidence either that one or more of plaintiff’s prima facie elements is lacking, or that the adverse employment action was based on legitimate, nondiscriminatory factors, the employer will be entitled to summary judgment unless the plaintiff produces admissible evidence which raises a triable issue of fact material to the defendant’s showing . . . [I]n the case of a motion for summary judgment or summary issue adjudication, the burden rests with the moving party to negate the plaintiff’s right to prevail on a particular issue. . . . In other words, the burden is reversed in the case of a summary issue adjudication or summary judgment motion.” (Arteaga v. Brink’s Inc. (2008) 163 Cal.App.4th 327, 344 [quotations omitted].)

To establish a prima facie case for discrimination under the FEHA, a plaintiff must show 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.” (Guz, supra, 24 Cal. 4th at 355.)

“A legitimate, nondiscriminatory reason is one that is unrelated to prohibited bias and that, if true, would preclude a finding of discrimination. [Citation.] The employer’s evidence must be sufficient to allow the trier of fact to conclude that it is more likely than not that one or more legitimate, nondiscriminatory reasons were the sole basis for the adverse employment action.” (Featherstone v. Southern California Permanente Medical Group (2017) 10 Cal.App.5th 1150, 1158.)

“The employee’s ‘subjective beliefs in an employment discrimination case do not create a genuine issue of fact; nor do uncorroborated and self-serving declarations.’ [Citation.]” (Featherstone, supra, 10 Cal.App.5th at p. 1159.) “To show that an employer’s reason for termination is pretextual, an employee ‘“cannot simply show that the employer’s decision was wrong or mistaken, since the factual dispute at issue is whether discriminatory animus motivated the employer, not whether the employer is wise, shrewd, prudent or competent.”’ [Citation.] To meet his or her burden, the employee ‘“must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable factfinder could rationally find them ‘unworthy of credence,’”’ and hence infer ‘“the employer did not act for [the asserted] nondiscriminatory reasons.”’ [Citations.]” (Ibid.) “[A]n employer is entitled to summary judgment if, considering the employer’s innocent explanation for its actions, the evidence as a whole is insufficient to permit a rational inference that the employer’s actual motive was discriminatory.” (Guz, supra, 24 Cal.4th at p. 361.)

Here, Defendants did not meet their initial burden to submit evidence that Plaintiff cannot meet his prima facie case for discrimination. The evidence provided only addresses Plaintiff’s termination, but not the other adverse actions alleged in Paragraphs 10 and 21 of the Complaint. “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Code Civ. Proc., § 437c, subd. (f)(1); Oakland Raiders v. National Football League (2005) 131 Cal.App.4th 621, 648 [“pleadings set the boundaries of the issues to be resolved at summary judgment”]; FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381 [“ ‘function of the pleadings in a motion for summary judgment is to delimit the scope of the issues: the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings’ ”].)

Whether many of Plaintiff’s claims of adverse employment action (other than termination) raise an issue of fact is doubtful because they lack specificity. The assertions in his declaration that he was, for example, assigned excessive work, was not permitted to give presentations to studios, and not allowed to travel out of state to conduct training sessions are, as stated, too vaguely described to show that they adversely and materially affected his job performance or advancement opportunities. Plaintiff does, however, allege that his title changed from a “Special Investigations Manager” to “Senior Manager.” Whether this constituted a demotion and adverse action is a triable issue of fact. Defendants cite to Undisputed Material Fact (UMF) 29 to argue the change was not a demotion, but the cited evidence does not fully support that fact. Lopez’s title changed in July 2017. (Complaint, ¶ 10.) Defendants cite to Lopez’s deposition, but the cited portion was in the context of discussing the “2018 employee merit statement.” (Sanchez Decl., Ex. B, Lopez Depo., p. 95:5-6.) The only statement is by Defendants’ attorney indicating, “And you got an increase to 94,500” and Lopez acknowledging the change in title. (Id. at p. 95:9-21.) Defendants also point to Exhibit H to the Sanchez Declaration, which indicates that Plaintiff received a 2% increase in salary. Plaintiff disputes this fact, asserting that the merit-based increases are unrelated to the “downgrading.” An annual salary increase does not necessarily indicate that Lopez received a raise in conjunction with the change in title.

The “materiality” test of adverse employment action explained in Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1054 looks to “the entire spectrum of employment actions that are reasonably likely to adversely and materially affect an employee’s job performance or opportunity for advancement in his or her career,” and the test “must be interpreted liberally … with a reasonable appreciation of the realities of the workplace.” For example, in Patten v. Grant Joint Union High School Dist. (2005) 134 Cal.App.4th 1378, 1389, a young school principal was transferred to a smaller school in a nicer area. The defendant school district argued this was not an adverse action because it was a lateral transfer, her wages stayed the same, and she was in a better overall environment. However, the Court of Appeal found there was a triable issue of fact as to whether the transfer “in reality was a demotion” because, within the context of school administration careers, a school with a small and high-achieving student population “does not present the kinds of administrative challenges an up-and-coming principal wanting to make her mark would relish.” (Id. at p. 1389.) In addition, the district took other actions “ ‘reasonably likely to impair …[her] job performance’ by providing inadequate administrative support, and budgetary, computer, and scheduling matters.” (Id. at p. 1390.)

Lopez disputed UMF 29 and asserted he was downgraded from a manager to an hourly employee. (See also Opposition, p. 14:20-21 [“downgrading plaintiff from a management (exempt) position to a ‘senior’ non-exempt position”].) Defendants did not fully address Lopez’s disputed fact, asserting merely that his title changed and he received a raise in 2017. Nor do they comment on the exempt status, number of employees he supervised/whether his supervisor changed, or whether his job duties were modified. Thus, the Court finds there is a triable issue of fact as to Lopez’s change in title and whether that constitutes a demotion. If it is a demotion, then Defendants have failed to meet their burden to establish why Lopez cannot meet his prima facie case or a legitimate, nondiscriminatory reason for the change in title in 2017.

Accordingly, summary adjudication is denied on the first and second causes of action.

Third cause of action - retaliation under the Fair Employment and Housing Act

Defendants assert that Plaintiff did not engage in a protected activity and even if he did, there is no nexus between the activity and his termination. Plaintiff argues there is an issue of fact on whether he engaged in a protected activity and that causation is shown through temporal proximity with his termination. Alternatively, he argues that he has sufficiently shown pretext.

Similar to discrimination, courts employ a burden-shifting approach to analyze claims of retaliation under the FEHA. (Yanowitz, supra, 36 Cal.4th at p. 1042.) The plaintiff has the initial burden to establish a prima facie case by showing (1) he or she engaged in protected activity, (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer’s action. (Ibid.) Once the employee establishes the prima facie case, the burden shifts to the employer, who must present a legitimate, nonretaliatory reason for the adverse employment action. (Ibid.) If the employer carries this burden, the “presumption of retaliation ‘drops out of the picture,’ and the burden shifts back to the employee to prove intentional retaliation.” (Ibid.)

In the third step of the analysis, the employee “then bears the burden of persuasion with respect to all elements of the cause of the action, including the existence and causal role of discriminatory or retaliatory animus.” (Mamou v. Trendwest Resorts, Inc. (2008) 165 Cal. App. 4th 686, 715.) The plaintiff must demonstrate a triable issue by producing substantial evidence that the employer’s stated reasons were untrue or pretextual, or that the employer acted with discriminatory animus, or a combination of the two, such that a reasonable trier of fact could conclude that the employer engaged in intentional discrimination or other unlawful action. (Batarse v. Service Employees Internat. Union, Local 1000 (2012) 209 Cal.App.4th 820, 834.)

While pretext is relevant, courts should focus on the central issue, which is whether the overall evidence supports a reasoned inference that the adverse action was the product of retaliatory animus. (Light v. Dept. of Parks & Recreation (2017) 14 Cal.App.5th 75, 94; Joaquin v. City of Los Angeles (2012) 202 Cal.App.4th 1207, 1226, fn.5.)

Here, the protected activity is the 2019 meeting between Lopez and the human resources vice-president Monagas. Defendants contend this was not protected because Lopez did not explicitly complain of age or national origin discrimination during the meeting. (UMF 57, 58.) In response, Lopez cites to his own deposition that he “thought [he] made it clear [he] felt [he] was being treated differently.” (Sanchez Decl., Ex. C., Lopez Depo., p. 198:12-25.) There is a triable issue of fact here as to what Lopez intended to convey at the meeting with Monagas.

However, assuming Plaintiff has met his prima facie case, Defendants advance what they argue is a legitimate, nondiscriminatory reason for Lopez’s termination: his lack of performance. (UMF 50-54; Hilven Decl., Exs. J, K, N, O, P, Q [complaints on Plaintiff’s performance]; Monagas Decl., Ex. T [termination letter].) Indeed, Plaintiff does not dispute that performance issues constitute a nondiscriminatory reason for termination. Thus, the burden shifts back to Lopez to show pretext.

A plaintiff may establish pretext either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer’s proffered explanation is unworthy of credence. (Batarse, supra, 209 Cal.App.4th at p. 834.) While very little direct evidence is sufficient to create a triable issue of fact, circumstantial evidence must be both “specific and substantial.” (Ibid.)

“ ‘Pretext may be demonstrated by showing “…that the proffered reason had no basis in fact, the proffered reason did not actually motivate the discharge, or, the proffered reason was insufficient to motivate the discharge.” ’ ” (California Fair Employment & Housing Com. v. Gemini Aluminum Corp. (2004) 122 Cal.App.4th 1004, 1023.) However, a plaintiff does not carry this burden simply by showing the employer’s decision was “ ‘wrong, mistaken, or unwise.’ Rather, the employee “ ‘must demonstrate such weaknesses, implausibilities, inconsistences, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its actions that a reasonable factfinder could rationally find them “unworthy of credence,” [citation], and hence infer “that the employer did not act for the […asserted] non-discriminatory reasons.” ’ ” ’ ” (Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 75)

“[T]emporal proximity, although sufficient to shift the burden to the employer to articulate a nondiscriminatory reason for the adverse employment action, does not, without more, suffice also to satisfy the secondary burden borne by the employee to show a triable issue of fact on whether the employer’s articulated reason was untrue and pretextual.” (Loggins v. Kaiser Permanente Internat. (2007) 151 Cal.App.4th 1102, 1112; Light v. Dept. of Parks & Recreation (2017) 14 Cal.App.5th 75, 94 [“a mere temporal relationship between an employee’s protected activity and the adverse employment action, while sufficient for the plaintiff’s prima facie case, cannot create a triable issue of fact if the employer offers a legitimate, nonretaliatory reason for the adverse action”].)

Here, Plaintiff’s opposition discussing causation due to temporal proximity is insufficient for pretext; instead, he relies on the same pretext arguments discussed in his claims for discrimination. He first contends that “it is false that [he] was not competent” and that his prior evaluations show he was an “exceptional contributor” or “strong contributor.” Second, he argues that Defendants failed to provide any training for him. Third, he contends that other non-Guatemalan individuals under the age of 40 were treated better than him.

First, Lopez’s evidence that he was performing competently is misleading. He provides only the performance evaluations from January 2014 through December 2017. (Plaintiff’s Compendium, Exs. 4-7.) The evaluations do not show that Plaintiff was performing competently during the relevant period, when Hilven transferred to MPA’s office in March 2019. (UMF 33.)

The second and third arguments – being denied training and being treated different – rely solely upon Lopez’s declaration. “ ‘[T]he sole declaration of a party opposing a summary judgment motion which raises a triable issue of fact is sufficient to deny that motion.’ ” (Rodriguez v. E.M.E., Inc. (2016) 246 Cal.App.4th 1027, 1043.) However, a plaintiff’s “[a]ffidavits must cite evidentiary facts, not legal conclusions or ultimate facts.” (Taylor v. Financial Casualty & Surety, Inc. (2021) 67 Cal.App.5th 966, 994; Hayman v. Block (1986) 176 Cal.App.3d 629, 639; see Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th 1718, 1735 [“The purpose of the summary judgment procedure . . . is to identify those cases in which there is no factual issue which warrants the time and cost of factfinding by trial”].) Lopez’s statements are too vague and conclusory.

Lopez asserts that he requested training, but it was denied. (Lopez Decl., ¶ 16.) But he does not explain the details of the training, why it was necessary, or how it could improve his performance. Paragraph 19 of his Declaration cites to numerous assignments that he conducted in the past, such as traveling to Oklahoma, a “law enforcement summit in Florida,” and helping out with international prosecutions. It is not clear how attending trainings that Lopez already attended would be beneficial to his competence, nor has he shown that Defendants unreasonably denied the training requests.

In the third argument, Lopez attempts to use comparative evidence that his younger, non-Guatemalan co-workers were treated more favorably. For example, he avers that “Jason Perez and Jay Kim, both of whom were approximately 10-15 years younger,” were allowed to attend a weeklong intensive training and other lectures that “plaintiff used to do.” (Lopez Decl., ¶¶ 16, 19, 21.)

As an initial matter, these statements lack specificity and a factual basis. Apart from that, the assertion is insufficient. “ ‘To be probative,’ ‘comparative data…must be directed at showing disparate treatment between employees who are “similarly situated” to the plaintiff in all relevant respects.’ ” (Gupta v. Trustees of Cal. State University (2019) 40 Cal.App.5th 510, 519-20.) “In general, ‘individuals are similarly situated when they have similar jobs and display similar conduct.’ ” (Id. at p. 520.) Lopez has made no showing that the named individuals were similarly situated. The issue here is Lopez conceding that these were new employees and so training was necessary. (Lopez Decl., ¶ 16.) In contrast, he admits that he has already attended these trainings, rendering them unnecessary. (Id. at ¶ 19; see Hilven Decl., Ex. M [e-mail from Plaintiff requesting training and Hilven responding with a request for a detailed curriculum to which Plaintiff did not respond].) Lopez’s resort to comparisons with other employees does not establish that all involved were similarly situated.

Finally, to the extent that Lopez seeks to introduce statistics as evidence of pretext, he fails to offer any evidence. His declaration suggests that Defendants hired two new people under the age of 40 before he was fired. This is insufficient to “show a stark pattern of discrimination unexplainable on grounds other than” age or national origin. (Guz, supra, 24 Cal.4th at p. 367; Diaz v. Eagle Produce Ltd. (9th Cir. 2008) 521 F.3d 1201, 1209 [pool of sixteen employees who were laid off or discharge was disregarded as insufficient to support inference of discrimination]; Sengupta v. Morrison-Knudsen Co. (9th Cir. 1986) 804 F.2d 1072, 1076 [in a pool of 28 employees, the fact that four of five African-Americans were laid off is insufficient because “ ‘ “statistical evidence derived from an extremely small universe” . . . “has little predictive value and must be disregarded” ’ ”].)

Because Lopez’s evidence is not “specific and substantial,” he fails to show any triable issue on pretext. (Light, supra, 14 Cal.App.5th at p. 94.) Accordingly, summary adjudication is granted on the retaliation cause of action.

Defendant argues this claim fails because the alleged conduct against Plaintiff were not “so severe and pervasive” so as to alter his working conditions. Plaintiff contends that it is an issue of fact on whether the series of conduct against him were sufficiently severe of pervasive.

“The law prohibiting harassment is violated ‘[w]hen the workplace is permeated with discriminatory intimidation, ridicule and insult that is “ ‘sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.’ ” ’ ” (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 263.) “ ‘[H]arassment cannot be occasional, isolated, sporadic, or trivial[;] rather the plaintiff must show a concerted pattern of harassment of a repeated, routine or a generalized nature.’ ” (Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 131.) The harassment must “ ‘create a work environment that qualifies as hostile or abusive to employees because of their [protected status].’ ” (Galvan v. Dameron Hospital Assn. (2019) 37 Cal.App.5th 549, 564 [emphasis added].) “A single incident of harassing conduct is sufficient to create a triable issue regarding the existence of a hostile work environment if the harassing conduct has unreasonably interfered with the plaintiff’s work performance or created an intimidating, hostile, or offensive working environment.” (Gov. Code, § 12923, subd. (b).)

In addition, “ ‘[h]arassment is not conduct of a type necessary for management of the employer’s business or performance of the supervisory employee's job.’ ” (Reno v. Baird (1998) 18 Cal.4th 640, 646.) “ ‘[C]ommonly necessary personnel management actions such as hiring and firing, job project assignments, office or work station assignments, promotion or demotion, performance evaluations, the provision of support, the assignment or nonassignment of supervisory functions, deciding who will and who will not attend meetings, deciding who will be laid off, and the like, do not come within the meaning of harassment. These are actions of a type necessary to carry out the duties of business and personnel management. These actions may retrospectively be found discriminatory if based on improper motives, but in that event the remedies provided by the FEHA are those for discrimination, not harassment. Harassment, by contrast, consists of actions outside the scope of job duties which are not of a type necessary to business and personnel management. This significant distinction underlies the differential treatment of harassment and discrimination in the FEHA.’ ” (Jumaane v. City of Los Angeles (2015) 241 Cal.App.4th 1390, 1407.)

Whether the harassment was “severe and pervasive” depends on the totality of the circumstances, which include evaluating the (1) the frequency of the harassing conduct, (2) the severity, (3) whether the conduct was physically threatening or humiliating, or a mere offensive utterance, and (4) whether it unreasonably interfered with the plaintiff’s work performance. (Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 283; Caldera v. Dept. of Corrections & Rehabilitation (2018) 25 Cal.App.5th 31, 38-39.) Annoying or “ ‘merely offensive’ ” comments do not meet this standard. (See Lyle, supra, 38 Cal.4th at p. 283.) Additionally, conduct that is “ ‘occasional, isolated, sporadic, or trivial’ ” is not actionable. (Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121,

Harassment may be verbal, physical, or visual and may include racial epithets, racially derogatory comments, and physical interference with normal work movement. (Cal. Code Regs., tit. 2, § 12120 subds. (c)(1)-(3).) “ ‘Harassment consists of conduct outside the scope of necessary job performance, conduct presumably engaged in for personal gratification, because of meanness or bigotry, or for other personal motives.’ ”(Jumaane, supra, 241 Cal.App.4th at p. 1407.)

Relying solely on his declaration, Lopez argues that numerous acts against him show there is a triable issue of fact on harassment: (1) denial of necessary travel that was part of his investigative work, (2) denial of the ability to communicate with other studios regarding his work, (3) denial of the opportunity to provide training to law enforcement in other states, (4) being required to work on tasks outside the scope of his job duties, (5) being assigned an overwhelming amount of work, (6) being routinely excluded from staff meetings, (7) having his questions ignored by Hilven, (8) “placed in a false light as to his work performance” such that his prospects for advancement were affected, (9) being denied training given to others and then criticized for not knowing matters that he would have learned from those trainings, (10) being assigned work for which he had little training, and (11) talked to in a rude manner by Hilven, privately and in front of others.

Much of these statements are mere personnel management decisions. For example, denying Plaintiff travel and training in other states, working on other tasks, assigned excessive or difficult work, and exclusion from staff meetings are all “actions of a type necessary to carry out the duties of business and personnel management.” (Jumaane, supra, 241 Cal.App.4th at p. 1407.) Furthermore, Lopez’s declaration is entirely vague on many of these statements, failing to provide a specific instance or occasion. For example, he merely states, in conclusory fashion, that “[a]s soon as Hilven took over as my direct supervisor, she began isolating me by excluding me from meetings I had attended for years, including staff meetings.” (Lopez Decl., ¶ 19.) Similarly, he fails to point to any specific instances in which Hilven denied him access to training. The closest he gets to potentially harassing conduct is that Hilven spoke to him in a rude manner, but the only specific details is that she told him “ ‘you’re the senior investigator, I should not need to talk to you’ ” or “ ‘as the senior investigator you should know this stuff.’ ” (Id. at ¶ 20.) This constitutes statements within the “scope of necessary job performance” and, while harsh, is not severe. (Arteaga v. Brink’s, Inc. (2008) 163 Cal.App.4th 327, 344 [FEHA does not guarantee a stress-free working environment and is not a “ ‘ “shield against harsh treatment at the workplace” ’ ”]; cf. Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 695 [finding that improper personnel actions may constitute harassment when a supervisor shuns and belittles the employee by commenting on her body odor, calling her “disgusting” and her job a “no brainer,” and degrading remarks].)

When “harassing conduct is not severe in the extreme, more than a few isolated incidents must have occurred to prove a claim based on working conditions.” (Lyle, supra, 38 Cal.4th at p. 284; Cornell v. Berkeley Tennis Club, 18 Cal. App. 5th 908, 940-941 [noting that four comments over several months, standing alone, did not “establish a pattern of routine harassment creating a hostile work environment, particularly given that the comments were not extreme”].)

Here too, Lopez does not meet his burden assuming he is alleging a pattern of pervasive conduct. The declaration provides vague or no dates as to certain events. For example, he does not indicate the instances when Hilven would belittle him, making it unable to decide whether the conduct was pervasive or isolated conduct. (Lopez Decl., ¶ 20.) Nor are there specific details of what Hilven said to Lopez, other than that she was rude or dismissive. (Mokler v. County of Orange (2007) 157 Cal.App.4th 121, 145 [“rude, inappropriate, and offensive behavior” does not constitute a hostile work environment”].)

Plaintiff contends that the fact there was no “age-based or national origin-based jokes or comments means nothing.” But this is incorrect. A prima facie case for hostile environment requires that the plaintiff was subject to some sort of conduct based in age or national origin. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2022) ¶ 10:294.5 [“The same standards governing sexual harassment govern [harassment based on age] claims”]; CACI 2521A.) Indeed, age and national origin is what his harassment claim is based upon. (Complaint, ¶ 41.) Insofar as whether he is alleging some form of generalized harassment, he cites no legal authority indicating that this is a cognizable cause of action.

The Court acknowledges that “[a] single incident of harassing conduct is sufficient to create a triable issue regarding the existence of a hostile work environment if the harassing conduct has unreasonably interfered with the plaintiff's work performance or created an intimidating, hostile, or offensive working environment.” (Gov. Code, § 12923, subd. (b).)

Thus, a single racial slur may be actionable. (Dee v. Vintage Petroleum, Inc. (2003) 106 Cal.App.4th 30, 36-37.) But this is not what Lopez has presented here. Instead, he asserts a series of personnel conduct occurring over an unspecified period of time without sufficient specificity and details. (Cf. Ortiz v. Dameron Hospital Assn. (2019) 37 Cal.App.5th 568, 582 [triable issue of fact on harassment based on national origin and age where director made specific and denigrating comments to those with an accent by calling them “stupid,” “too old,” “dummies,” that “didn’t speak English”].) Even construing Lopez’s declaration liberally, it is too vague to demonstrate any harassing conduct.

It is true, as Lopez points out, that “[h]arassment cases are rarely appropriate for disposition on summary judgment” and “[w]hether an employee was subjected to a hostile work environment is ordinarily one of fact.” (Gov. Code, §12923, subd. (e).) (Rehmani v. Superior Court (2012) 204 Cal.App.4th 945, 959.) But this does not foreclose summary adjudication across the board. Plaintiff must still demonstrate that a “reasonable person subjected to the discriminatory conduct would find, as the plaintiff did, that the harassment so altered working conditions as to make it more difficult to do the job.” (Gov. Code, §12923 subd. (a).) Because he has failed to do so, summary adjudication is granted on this claim.

As the discrimination claims survive, so too does the fifth cause of action for failure to prevent discrimination. (See Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th 280, 288-289; see Dickson v. Burke Williams, Inc. (2015) 234 Cal.App.4th 1307, 1318.) Summary adjudication is denied on this cause of action.

Under Civil Code section 3294, subdivision (a), punitive damages may be awarded if the plaintiff proves by clear and convincing evidence that the defendant is guilty of fraud, oppression or malice.

For employers, there are three situations in which liability may be imposed: “An employer shall not be liable for damages pursuant to subdivision (a), based upon acts of an employee of the employer, unless [1] the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or [2] ratified the wrongful conduct for which the damages are awarded or [3] was personally guilty of oppression, fraud, or malice. With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud or malice must be on the part of an officer, director or managing agent of the corporation." (Civ. Code, § 3294, subd. (b).)

“ ‘In the usual case, the question of whether the defendant’s conduct will support an award of punitive damages is for the trier of fact, “since the degree of punishment depends on the peculiar circumstances of each case.” [Citations.] [¶] But the issue may be resolved on summary judgment, giving due regard to the higher proof standard. While “the ‘clear and convincing’ evidentiary standard is a stringent one, it does not impose on a plaintiff the obligation to ‘prove’ a case for punitive damages at summary judgment.” [Citation.] “However, where the plaintiff’s ultimate burden of proof will be by clear and convincing evidence, the higher standard of proof must be taken into account in ruling on a motion for summary judgment or summary adjudication, since if a plaintiff is to prevail on a claim for punitive damages, it will be necessary that the evidence presented to meet the higher evidentiary standard.” ’ ” (Johnson & Johnson v. Superior Court (2011) 192 Cal.App.4th 757, 762.)

Here, Defendants argue there is no oppressive, fraudulent, or malicious conduct because the termination was legitimate and nondiscriminatory. Thus, because they tether this issue to summary adjudication of the other claims (and the discrimination claims survive), summary adjudication is denied on punitive damages.

Defendants contend that Hilven, Van Voorn, and Monagas are not managing agents. Plaintiff argues that he is alleging personal liability against Hilven for harassment and that Van Voorn and Monagas are both responsible for high level oversight and management.

“ ‘Managing agents’ are employees who ‘exercise[] substantial discretionary authority over decisions that ultimately determine corporate policy.’ . . . ‘[T]he Legislature intended the term “managing agent” to include only those corporate employees who exercise substantial independent authority and judgment in their corporate decisionmaking so that their decisions ultimately determine corporate policy.’ [Citation.] ‘[T]o demonstrate that an employee is a true managing agent under [Civil Code] section 3294, subdivision (b), a plaintiff seeking punitive damages would have to show that the employee exercised substantial discretionary authority over significant aspects of a corporation’s business.’ [Citation.] ‘The scope of a corporate employee’s discretion and authority under our [managing agent] test is therefore a question of fact for decision on a case-by-case basis.’ [Citation.] If there exists a triable issue of fact regarding whether a corporate employee is a managing agent under the White test, that factual question must be determined by the trier of fact and not the court on a motion for summary adjudication.” (Davis v. Kiewit Pacific Co. (2013) 220 Cal.App.4th 358, 366.)

As to Hilven, the Court granted summary adjudication on harassment, so she is dismissed as a Defendant.

Van Voorn attests that he is the “Executive Vice President and Chief of Global Content Protection” and leads and manages MPA’s contribution to the Alliance for Creativity and Entertainment (ACE), a coalition of roughly 40 other global entertainment companies that combat online piracy. (Van Voorn Decl., ¶ 1.) He is “involved in hiring, making personnel decisions, general supervision of [his] department, and enforcing the MPA’s policies.” It is unclear the significance of ACE in relation to MPA’s internal structure. Given that Van Voorn leads the entire “Global Content Protection Enforcement Team,” there is a triable issue of fact on how much authority he has within that department and MPA overall.

As to Monagas, he attests to being “responsible for all human resources and personnel matters across the global enterprise and all operational and facilities management matters in the U.S.” (Monagas Decl., ¶ 1.) This presents a question of fact. (Davis v. Kiewit Pacific Co. (2013) 220 Cal.App.4th 358, 372 [an EEO officer who “enforce[d] its policies against discrimination, retaliation, and harassment” could be a managing agent because he had the “authority and discretion regarding enforcement”]; Colucci v. T-Mobile USA, Inc. (2020) 48 Cal.App.5th 442, 453 [“Managing agents are not limited to those individuals with the ability to set handbook policies”].)

Defendants’ motion for summary judgment is denied. Their motion for summary adjudication is granted as to the third and fourth causes of action, and otherwise denied.

Department 58