Judge: Christian R. Gullon, Case: 20PSCV00580, Date: 2024-05-06 Tentative Ruling

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Case Number: 20PSCV00580    Hearing Date: May 6, 2024    Dept: O

Tentative Ruling

DEFENDANTS SAN GABRIEL VALLEY TRAINING CENTER AND WORKSHOP FOR THE HANDICAPPED AND VANESSA BESACK'S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION is GRANTED in its entirety; Plaintiff has failed to plead damages as to the fraud COA; the invasion of privacy COA fails because the intrusion was limited; and the 3^rd COA for wrongful termination fails because Plaintiff’s very own evidence concedes that he was demoted, not terminated, such that it fails as a matter of law.

Background

This is a wrongful termination case. Plaintiff CLARENCE ERVING alleges the following against Defendants SAN GABRIEL VALLEY TRAINING CENTER AND WORKSHOP FOR THE HANDICAPPED (the “Center”), a California corporation; VANESSA BESACK: Plaintiff was employed at the Center from June 1, 2001 to November 11, 2019 where he was a production manager. In November 2019, the Center investigated an allegation of an inappropriate personal relationship between Plaintiff and a newly hired employee, Barbara Caballos (who started on May 23, 2009 and left on November 20, 2019), even though it was a “professional” and “personal friendship” between the two. (Complaint ¶8.) Besack then “pressured” both to file sexual harassment complaints against each other. (¶9.) When Plaintiff and Caballos refused, “Besack [] falsely represented to Mr. Erving that Ms. Ceballos was filing or about to file a sexual harassment complaint against Mr. Erving, deceiving Mr. Erving into releasing and disclosing the personal and private texts via personal phones to Ms. Besack in an attempt to establish a false claim against both Ms. Ceballos and Mr. Erving for purposes of suppressing both employees' rights to seek redress in court and to defeat a wrongful termination lawsuit with falsified employment records.” (¶10.)

On September 3, 2020, Plaintiff filed suit against Defendants for:

On December 30, 2020, Defendants filed their answer.

On January 22, 2024, the parties attended an MSC, but no settlement was reached.

On February 14, 2024, Defendants filed the instant MSJ.

On April 18, 2024, Plaintiff filed his opposition.

On May 1, 2024, Defendants filed their reply.

Legal Standard

The law of summary judgment provides courts “a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.”  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar).)  In reviewing a motion for summary judgment, courts employ a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent’s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.”  (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.) “The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”  (Code Civ. Proc., § 437c, subd. (c).)   

A moving defendant bears the initial burden of production to show that one or more elements of the cause of action cannot be established or that there is a complete defense to the cause of action, at which point the burden shifts to the plaintiff to make a prima facie showing of the existence of a triable issue.  (Code Civ. Proc., § 437c, subd. (p)(2), emphasis added.) “The motion shall be supported by affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken. The supporting papers shall include a separate statement setting forth plainly and concisely all material facts that the moving party contends are undisputed. Each of the material facts stated shall be followed by a reference to the supporting evidence. The failure to comply with this requirement of a separate statement may in the court’s discretion constitute a sufficient ground for denying the motion.” (Code Civ. Proc., § 437c, subd. (b)(1), emphasis added.)

The opposing party may not rely on the mere allegations or denials of the pleadings, but instead must set forth the specific facts showing that a triable issue exists as to that cause of action or a defense thereto.  (Aguilar, supra, at p. 849, emphasis added.) Specifically, “[t]he opposition, where appropriate, shall consist of affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken.” (Code Civ. Proc., § 437c, subd. (2).) 

Discussion

Defendants move for summary judgment as to the entirety of the complaint.

1.     1^st COA for Fraud

The elements of fraud that will give rise to a tort action for deceit are: (a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or 'scienter'); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage. (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 974; see also Civil Code. section 1710(1).

The fraud COA alleges that Besack told Plaintiff that “Ceballos was filing or about to file a sexual harassment complaint against Mr. Erving and that Mr. Erving was to release and to disclose all personal and private texts exchanged between Mr. Erving and Ms. Ceballos. In order to defend any legal action by Ms. Ceballos, Mr. Erving is to file a sexual harassment complaint against Ms. Ceballos thus resulting in committing a civil wrong against Ms. Ceballos.” (Complaint ¶13.) However, Ceballos was not filing or about to file any sexual harassment complaint against Plaintiff. (¶14.) “In reliance on these representations, Mr. Erving was induced to take no [sic] further action. Had Mr. Erving known the actual facts, Mr. Erving would not have taken actions.” (¶16.)

Defendant moves for summary judgment on the grounds that Plaintiff failed to plead and cannot establish detrimental reliance and damages.

Here, the court agrees that Plaintiff has not pled damages as a result of the purported misrepresentation. While in opposition Plaintiff pleads that “The damages sustained here are the emotional distress, humiliation, anger associated with the disclosure of the personal and private text messages because of the fraudulent representations and the shock and distress from the false assertions that Ms. Ceballos would do such a thing,” (Opp. p. 5:19-21), the four corners of the complaint, which govern a summary judgment motion, contain no such damages. Thus, as the complaint appears to allege damages flowing from his alleged constructive termination and recovery for fraud is precluded in the employment context absent a separate form of damages, then damages are not pled. (See Motion pp. 5-6, quoting Hunter v. Upright, Inc. (1994) 6 Cal.4th 1174, 1178 [“Tort recovery is available only if the plaintiff can establish all of the elements of fraud with respect to a misrepresentation that is separate from the termination of the employment contract, i.e., when the plaintiff's fraud damages cannot be said to result from termination itself.”].). Even assuming damages were pled, damages for emotional distress alone are not recoverable absent an aggravation of other damages. (Reply p. 4, citing Nagy v. Nagy ( 1989) 210 Cal.App.3d 1262, 1269.)

Therefore, absent damages, the MSJ as to the 1^st COA for fraud is granted. (See also Reply p. 3, citing Abbot v. Stevens (1955) 133 Cal.App.2d 242, 247 [fraudulent representations which work no damage cannot give rise to an action at law.]  

2.     Invasion of Privacy

“A privacy violation based on the common law tort of intrusion has two elements. First, the defendant must intentionally intrude into a place, conversation, or matter as to which the plaintiff has a reasonable expectation of privacy. Second, the intrusion must occur in a manner highly offensive to a reasonable person."(Motion p. 7, quoting Hernandez v. Hillsides, Inc. (Hernandez) (2009) 47 Cal.4th 272,286.) “In determining the “ ‘offensiveness' ” of an invasion of a privacy interest, common law courts consider, among other things: “the degree of the intrusion, the context, conduct and circumstances surrounding the intrusion as well as the intruder's motives and objectives, the setting into which he intrudes, and the expectations of those whose privacy is invaded. (Hill v. National Collegiate Athletic Assn. (1994) 37 Cal.4th 1, 26.)  

Plaintiff alleges that the disclosure of the texts constitutes as an invasion of privacy. (Complaint ¶¶21-23.)

Defendants move for summary judgment on the grounds that Plaintiff has failed to plead highly offensive conduct because (1) Plaintiff consented to the alleged invasion; (3) the information was not sensitive, (3) Defendants’ conduct was justified, and (4) the intrusion was limited. (Motion pp. 8-9.)

Here, the court partly agrees with Defendants’ arguments.

Consent: Plaintiff may not have objected or protested Defendants’ access and review of his texts, but that does not mean, under the totality of the circumstances, that he consented. He provided the texts at the insistence, pressure, and demand of Besack. In fact, Besack in her declaration states as much. (See Besack Decl., Ex. B [Employee Corective Action Form], p. 0062 [“I asked that you send me all the texts you and Ms. Ceballos had shared for the last month. I explicitly said if you didn’t provide it to me by end of day, it would be considered impeding an investigation.”].)[1] Thus, as consent requires the absence of coercion, the court disagrees with Defendants that Plaintiff consented to production of his texts.

Sensitive: Defendants contend that the text messages should not be considered sensitive because Plaintiff alleges and testifies that there was nothing romantic between Plaintiff and Ceballos. But Defendants themselves characterize the messages as “contain[ing] inappropriate exchanges of a sexually suggestive” (Separate Statement No. 11); thus, that argument is disingenuous. (And the court’s review of texts illustrate that they are very suggestive.) Defendants’ other argument that Plaintiff alleges he sent similar messages to other employees for the conclusion that the information is not sensitive is equally unavailing. Information that is shared with more than one person doesn’t necessarily mean that the information is not sensitive. Therefore, absent authority or a definition as to why the text messages are not sensitive, Defendants have not met their burden to show that the information was not sensitive.[2]

Justifiable Conduct: Defendants argue that they were put on notice of the situation and had a duty to investigate and prevent possible harassment, evidencing that there was a lack of beneficial motive. (Motion p. 8, 9, citing Myers v. Trendwest Resorts, Inc. (2007) 148 Cal.App.4th 1403, 1422 [“Under the FEHA ... there is a need to determine whether sexual conduct that occurs off the worksite or after working hours constitutes an unlawful employment practice' within the ambit of the act."].) But Defendants are missing the mark. Plaintiff doesn’t dispute that an investigation was appropriate, but it had to be done in good faith and reasonable investigation. Misleading Plaintiff into disclosing personal and private communications surely does not sound in good faith. In reply, Defendants contend that “what constitutes the proper scope of a good faith investigation are meaningless and irrelevant.” (Reply p. 7:2-3.) However, Defendants have not provided authority that an investigation can occur in whatever which way possible. Therefore, Defendants have not met their burden that the investigation in the way it was done was justified.

Intrusion: Defendants argue that the “invasion,” if any, was limited to serving the purpose of investigating reports of potential workplace harassment in that it was limited to the subject texts and not disclosed to third parties. (Motion p. 9; see Hill, supra, at p. 38 [less intrusion feasible safeguards in place and privacy concerns alleviated because the intrusion "limited."].) Indeed, the evidence indicates that only screenshots of the relevant messages were provided. (SS No. 9, p. 9.) The opposition does not squarely address this argument, but merely cites to Hill and provides a conclusion. Therefore, as the intrusion was limited, Defendants have successfully negated in element of the invasion of privacy. (See Opp. p. 8-15.)

Therefore, the court GRANTS the MSJ as to the 2^nd COA for invasion of privacy.

3.     Wrongful Termination in Violation of Public Policy[3]

The elements of a claim for wrongful termination in violation of public policy are (1) an employer employee relationship, (2) the employer TERMINATED the plaintiff's employment, (3) the termination was substantially motivated by a violation of public policy, and (4) the discharge caused the plaintiff harm." (Garcia-Brower v. Premier Automotive Imports of CA, LLC (2020) 55 Cal.App.5th 961, 973, 22 internal citation omitted, capitalization added.)

Plaintiff alleges that he “was discharged for refusing to defame Ms. Ceballos, committing a civil wrong under Civil Code, Sections 44 & 45, which was a substantial motivating reason for the termination.” (Complaint ¶30.)

Defendants’ Burden

Defendants argue and produce evidence that Plaintiff was demoted for a legitimate reason. The undisputed evidence shows that Defendants had good cause to investigate plaintiff after receiving reported concerns about sexual harassment, and further demonstrating that, through its investigation, Defendants discovered evidence that it determined wan-anted prompt corrective action, thus Plaintiff's demotion. (Motion p. 10.)

For example, according to Besack’s declaration, Plaintiff “was not providing leadership either in Covina or La Puente. He was not coming to the La Puente as asked, or meeting with his staff, and staff were generally feeling at both locations that they had no leadership.” (Besack Decl., p. 29:4-8.) Similar concerns with performance were documented in the Employee Corrective Action Form as evidenced by the following entries:

On Wednesday, Oct. 2, 2019, Brittany Bauerle met with you and the floor supervisors to discuss their concerns. Brittany made it clear that you needed to improve your performance immediately. You promised that you would start having weekly production meetings. To date, not a single meeting has been held. That same day, Brittany reviewed your job description with you in order to clarify your duties. Floor supervisors were asked if there had been any communication after the meeting with them and they said you weren't communicating with them and they were unsure of jobs they needed to work on.

On Wednesday, Oct. 23, 2019, floor supervisors from Covina also complained that you were absent and not leaving your office to support them. It was also brought to our attention that you were spending all day with the Covina administrative coordinator Barbara Ceballos in your office. The floor supervisors said there were instances where you were seen wrestling with her to get out of the chair and exhibiting inappropriate behavior in front of staff and clients.

On Oct. 31, 2019, during my visit to Covina on Halloween, I noticed you were in your office with Barbara Ceballos during work hours, leaving the front office unmanned. I told you that day that I wanted to meet on Monday Nov. 4, 2019. (Besack Decl., p. 6 of 9 of PDF.)[4]

Accordingly, Defendants have proffered nondiscriminatory reasons for demoting Plaintiff. (Motion p. 10, quoting King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 436 ["It is the employer's honest belief in the stated reasons for firing an employee and not the objective truth or falsity of the underlying facts that is at issue."]; see also Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th 1718, 1732 [“good cause for discharging the employee ... can also support an inference of good faith, and of the absence of an improper motive, in the discharge decision.”].)

Reasons for demoting aside, Plaintiff argues he was not demoted, but a review of Plaintiff’s deposition indicates that he too concedes he was demoted.

“Q. Okay. And was Vanessa Besack your supervisor at the time that your employment ended? A. Yes. Q. Were you terminated? A. I'm going to say yes. Q. Okay. What was the reason for your termination? A. I would say on paper, it's demotion. They demoted me.  Q. Okay. So you were demoted, not terminated? A. Of the -- the cost -- the amount of -- well, yes, I would say I was demoted. So then the lower pay was catastrophic. Q. What was the difference in pay?A. From $31 to 17, I think it was. Q. Were you provided with any documents reflecting the demotion? A. Yes.”], (See Plaintiff’s Evidence, p. 125 of 497 of PDF emphasis added.)[5]

And, as noted by Defendants, a constructive discharge claim fails as a matter of law because the it requires a continuous pattern of aggravated conduct such that any employee would find it to be unbearable. (See Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1247 [“In order to amount to a constructive discharge, adverse working conditions must be unusually aggravated' or amount to a ' continuous pattern' before the situation will be deemed intolerable. In general, a single, trivial, or isolated acts of [misconduct] are insufficient' to support a constructive discharge claim.”].) (Turner was cited by Plaintiff in opposition and Defendants in Reply.) Here, however, Plaintiff alleges an isolated charge of employer misconduct (Besacks’s purported fraudulent scheme). Therefore, absent an aggravated isolated incident (e.g., “crime of violence” see Turner, p. 1238, fn. 3)), a constructive discharge claim fails.

Therefore, as Defendants have produced admissible evidence that Plaintiff was demoted for a legitimate reason, Plaintiff’s COA fails as a matter of law. Thus, the MSJ is GRANTED as to the 3^rd COA.

Conclusion

In sum, the MSJ is granted as to the fraud COA because Plaintiff has failed to plead damages; the MSJ is granted as to the invasion of privacy COA because the intrusion was limited; and the MSJ is granted as to the 3^rd COA for wrongful termination because Plaintiff’s very own evidence concedes that he was demoted, not terminated, such that it fails as a matter of law. Based on the foregoing, the MSJ is granted.