Judge Christian R. Gullon, Case Number: 21PSCV01009, Date: 2023-11-02 Tentative Ruling

Judge: Christian R. Gullon, Case: 21PSCV01009, Date: 2023-11-02 Tentative Ruling

(1) Defendant The Defendant Boiling Crab’s Motion For Summary Judgment Or, In The Alternative, Motion For Summary Adjudication is GRANTED in part (MSA granted as to 1^st, 2^nd and 3^rd COAs [related to harassment]) and DENIED in part (i.e., as to remainder of the COAs).

(2) Motion To Continue Trial & All Discovery & Motion Filing Deadlines is GRANTED.

This case arises from alleged workplace harassment in the workplace. Plaintiff KATELYN NGUYEN alleges the following against Defendant THE BOILING CRAB: Plaintiff was a waitress at the Boiling Crab. “During her four (4) years of employment, Defendant's patrons consistently and continuously harassed Plaintiff. Defendant's male patrons made lude, sexual, inappropriate, and offensive remarks to Plaintiff.” (Complaint ¶17.) Plaintiff complained to her manager (Alfred) and her shift lead, but neither took steps to remedy the situation. (¶18.) Other female employees also experienced similar sexual harassment by the male patrons. (¶20.) In addition to the hostile work environment, Defendant failed to properly provide meal and/or rest breaks to its employee. (¶23.) Ultimately, “Plaintiff's termination was constructive in nature due to Defendant creating an intolerable and unsafe work environment.” (¶22.)

On December 2, 2021, Plaintiff filed suit alleging the following causes of action (COAs):

On August 17, 2023, Defendant filed the instant motion for summary judgment (MSJ).

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).) “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).)

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.) 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).)

Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389; see also Hinesley, supra, 135 Cal.App.4th at p. 294 [The court must “view the evidence in the light most favorable to the opposing party and accept all inferences reasonably drawn therefrom.”].) In determining whether the papers show that there is a triable issue as to any material fact, the court shall consider all of the evidence set forth in the moving papers, except that as to which objections have been made and sustained, and all inferences reasonable deducible from such evidence. (Hayman v. Block (1986) 176 Cal.App.3d 629, 639.)

Discussion

Defendant seeks summary judgment/adjudication as to the first through seventh COAs. (Notice of Motion.)[2]

The crux of the motion is predicated upon the arguments that:

1. Plaintiff’s harassment cause of action fails in that her allegations do not constitute severe or pervasive harassment sufficient to have created a hostile working environment in violation of the Fair Employment and Housing Act (FEHA).

2. Plaintiff voluntarily resigned her position and was never terminated.

3. Plaintiff was provided with her meal and rest breaks during her employment.

A. Harassment COAs (1^st COA and 3^rd COA)[3]

A hostile work environment sexual harassment claims requires a plaintiff employee to show: (1) he or she was subjected to unwelcome sexual advances, conduct or comments; (2) the harassment was based on sex; and (3) the harassment was sufficiently severe or pervasive to alter the conditions of employment and create an abusive environment. (Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 279.)[4]

“The prohibition of harassment on the basis of sex . . . forbids only behavior so objectively offensive as to alter the conditions of the victim's employment and create a hostile or abusive work environment [internal citation omitted].” (Id. at p. 282-283, emphasis added.) As the state Supreme Court continued to explain, an abuse or hostile work environment “can be determined only by looking at all the circumstances [including] the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance. [internal citation omitted].) (Ibid, emphasis added.)

In determining the severity of harassment, it is judged from the “perspective of a reasonable person in the plaintiff's position, considering all the circumstances.” [internal citation omitted.].) (Id. at p. 283.)

In determining the pervasiveness of harassment, “courts have held an employee generally cannot recover for harassment that is occasional, isolated, sporadic, or trivial; rather, the employee must show a concerted pattern of harassment of a repeated, routine, or a generalized nature.” (Ibid, emphasis added.) “[W]hen the 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.” (Id. at p. 284.)

For Plaintiff to prevail on her claim for failure to prevent harassment, Plaintiff must show three essential elements: (1) that she was subjected to unlawful harassment; (2) that defendant failed to take all reasonable steps to prevent the harassment; and (3) that this failure caused Plaintiff to suffer injury, damage, loss or harm. (Caldera v. Department of Corrections & Rehabilitation (2018) 25 Cal.App.5th 31, 43-44.)

a. Defendant’s Burden

Defendant’s main argument is that Plaintiff alleges only a few incidents of inappropriate verbal

statements by third-party customers. The statements are as follows:

- Plaintiff alleges that sometime in 2019, a middle-aged male customer called her a “bitch” after it took a while to seat his party. Plaintiff can’t recall what month or when in 2019 this allegedly occurred. (Separate Statement (SS) No. 9, citing Plaintiff’s Deposition)

- Plaintiff alleges she was verbally harassed by an elderly male Asian customer at some point during her employment. Plaintiff claims this gentleman called her “cute” a few times, and told Plaintiff that she should wait on him more often. Plaintiff alleges she saw him staring at her butt on one occasion. Plaintiff claims that this customer, on one occasion, told Plaintiff, “I like your butt.” (SS No. 10, emphasis added.)

- On or about June 27, 2021, Plaintiff alleges that four male customers at a certain table verbally harassed her. Plaintiff claims that she brought the table drinks and was asked by one of the customers, “Did you spit in my drink? If you did, I will slurp you up.” This same male patron, according to Plaintiff, said during this conversation, “You should drop your pen and bend over.” (SS No. 11). Plaintiff claims minutes later the same male patron said to her, “I will tip you with my d-ck.” (SS No. 12).

Based thereon, Defendant avers that there were few and sporadic comments, over a four-year period (worked June 2017 until August 2021). Notably, all comments from different customers, indicating the isolated nature of the comments, which are insufficient for FEHA claims. (Lewis v. City of Benicia (2014) 224 Cal.App.4th 1519, 1528 [“Hickman's alleged conduct did not consist of an isolated outburst of profane insults. Instead, as outlined above, Hickman allegedly engaged in a course of conduct from which a reasonable jury could infer he was pursuing a relationship with Lewis and was acting from genuine sexual interest.”].)

While the 2021 comment is undoubtedly insulting, disgusting, and degrading, “the occasional vulgar banter, tinged with sexual innuendo, of coarse and boorish workers” does not constitute harassment. (Motion p. 10, citing Baskerville v. Culligan Int’l Co. (7th Cir. 1995) 50 F.3d 428, 430, Meritor Savings Bank v. Vinson (1986) 477 U.S. 57, 61; see also Sheffield v. Los Angeles County Dept. of Social Services (2003) 109 Cal.App.4th 153, 162.) At most, the comments were teasing, but “simple teasing” and “offhand comments” are insufficient for a sexual harassment claim. (See Motion p. 11, quoting Faragher v. City of Boca Raton (1998) 524 U.S. 775, 788.)

Plus, the comments were not physically threatening nor affected Plaintiff’s work performance as after the June 2021 incident, Defendant never received any complaint from any customer or employee regarding any of the June 2021 customers (SS No. 19) nor did Plaintiff ever see the four male customers again. (SS No. 21.)[5] (See Motion pp. 9-10, citing Harris v. Forklift Systems, Inc. (1993) 510 U.S. 17, 23.)

What is more, Defendant had no knowledge that any of these customers had ever said anything inappropriate or harassing to any customer or employee before the June 2021 incident involving Plaintiff. (SS No. 18.) And as to the 2021 incident, Defendant acted immediately and appropriately as soon as the customers were reported. Plaintiff’s manager moved her away and had another server tend the table (SS Nos. 14, 15), the manager (Moua) confronted the table (SS No. 16), and the four customers left the restaurant about an hour later never to be seen again (SS Nos. 16-18.)

Thus, as there is no evidence of Defendant’s knowledge about the particular third party’s harassing conduct and here there is. of the customers’ harassing conduct, the employer/Defendant cannot be liable for a third-party customer’s harassment. (Motion p. 11, citing Carter v. California Dept. of Veterans Affairs (2006) 38 Cal.4th 914 [ statutory interpretation of Assembly Bill No. 76 (2003–2004 Reg. Sess) that amended FEHA to add language specifying that employers are “responsible for the acts of nonemployees, with respect to the sexual harassment of employees ... where the employer ... knows or should have known of the conduct and fails to take immediate and appropriate corrective action.”].)[6]

Therefore, in sum, Plaintiff’s unlawful harassment claim lacks merit in that infrequency and lack of severity (aside from the 2021 incident) are insufficient to rise to the level of severe or pervasive harassment under the FEHA, which also precludes the 3^rd COA for failure to prevent harassment.

The burden now shifts to Plaintiff.

b. Plaintiff’s Burden

Plaintiff argues that triable issues of material fact exist as to whether the comments were pervasive or severe and that “Plaintiff's lawsuit is almost entirely premised on the allegation that TBC failed to take all reasonable steps necessary to investigate and prevent harassment from occurring, putting Defendant's contentions in dispute.” (Opp. p. 3:15-17.)

As a prefatory matter, the court disagrees with the latter point. As the pleadings frame the issues, the court turns to the complaint. The complaint not once mentions Defendant’s duty or failure to investigate harassment. To the extent that was the intent of the complaint, the complaint is seemingly boilerplate. Rather, the complaint is based upon the harassment she faced from customers. (See Complaint p. 7 [“Plaintiff was subjected to constant pervasive and/or severe harassment by customers.”].) Therefore, to the extent that Plaintiff provides evidence and arguments that Defendant alleged neglected to investigate the 2021 incident is immaterial.

As to the “frequency” of the alleged harassment, Plaintiff disputes the “frequency” prong of the harassment by arguing “Plaintiff on multiple occasions was harassed by customers, some who were repeat customers.” (Plaintiff’s SS No. 8, citing to Plaintiff’s declaration.) But a review of Plaintiff’s declaration does not provide evidence that Plaintiff was harassed by those same men on more than one occasion. Rather, her declaration, which is largely dedicated to the wage claims, provides the following one sentence: “I was harassed on multiple occasions working for Defendant Boiling Crab. However, I recall three separate instances which I was harassed.” (¶11; see also Plaintiff’s SS No. 22 [“Disputed to the extent Plaintiff only recalls these three incidents.”.) If anything, this strengthens Defendant’s argument that the comments were on separate instances and thus isolated.

In fact, Plaintiff maintains that it's unclear whether these were repeat customers (Plaintiff’s SS

No. 18), further suggesting the lack of evidence on the issue. To the extent there were repeat customers, the court has reviewed Plaintiff’s deposition and the “older Asian gentlemen” interacted with Plaintiff about four times. (Mirzaie Decl., Ex. C [Plaintiff’s deposition], p. 26-28 of 44 of PDF.)[7] (See also Opp. p. 12 [“[Plaintiff] was constantly harassed by an Asian customer who frequently dined at TBD.”].)

But employing common sense and a reasonable view, the interactions do not amount to harassment under FEHA because calling Plaintiff (and other coworker(s)) “cute” is not so objectively offensive; being called “cute” is not obscene, not vulgar, not coarse, not boorish, nor flagrant. As to the commentary about Plaintiff’s butt, while that may be tined with sexual innuendo or suggestive, that does not constitute harassment. (See Fisher, supra, 214 Cal.App.3d at p. 611-612 [“On the other hand, courts have concluded that isolated instances of sexual harassment do not constitute a hostile work environment. (See e.g., Jones v. Flagship Intern., supra, 793 F.2d 714, 716 [supervisor's two suggestive remarks and a single proposition of plaintiff]; Rabidue v. Osceola Refining Co. (6th Cir.1986) 805 F.2d 611, 615, 622 [Even though co-worker was extremely vulgar and crude and in confrontation posture with plaintiff and nude photos were present, totality of the workplace was not affected.]; Scott v. Sears, Roebuck & Co. (7th Cir.1986) 798 F.2d 210, 214 [isolated winks, suggestive remarks and a co-worker's single request for a date with plaintiff]; Downes v. F.A.A., supra, 775 F.2d 288, 293 [Defendant engaged in mildly offensive verbal conduct on three occasions and twice touched plaintiff's hair.].”].)

In fact, Taylor Dang (another female coworker who was allegedly harassed) concedes in her deposition that the statement was not offensive: “They didn’t make any explicitly inappropriate” comment. (Mirzaie Decl., Ex. B [Dang Deposition], p. 16 of 44 of PDF.)

To the extent that being called “cute” is offensive, Plaintiff has not cited to any authority, not responded to Defendant’s authority, nor provided an analysis to deem otherwise.

Therefore, absent evidence (and analysis), Plaintiff has not provided evidence that she was subject to sexually improper comments in a “concerted pattern of harassment of a repeated, routine or generalized nature.” (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 610.)

Thus, summary adjudication is GRANTED as to the 1^st and 3^rd COAs.

B. 2^nd COA for Wrongful Termination

In order for Plaintiff to prevail on her claim of wrongful constructive discharge, she must prove that Defendant “either intentionally created or knowingly permitted working conditions that were so intolerable or aggravated at the time of the employee’s resignation that a reasonable employer would realize that a reasonable person in the employee’s position would be compelled to resign.” (Motion p. 13, citing Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1251.) The focus is on “whether the resignation was coerced, not whether it was simply one rational option for the employee.” (Id.) Thus, the alleged adverse working conditions must be “unusually aggravated” or amount to a “continuous pattern” in order to be deemed intolerable. “Single, trivial, or isolated acts of [misconduct] are insufficient” to support a constructive discharge claim.” (Id. at 1247.)

Plaintiff resigned because she felt unsupported by her managers during her employment, specifically after the 2021 incident. (SS No. 24.)

Not being supported by your supervisor is insufficient to support a constructive termination claim as Plaintiff has not made allegations (nor a showing) of continuous pattern of unusually aggravated conduct by her employers.

Therefore, Defendant has met its burden.

b. Plaintiff’s Burden

Plaintiff argues she resigned because she “could no longer endure the constant customer harassment and the neglect from managers in protecting the female employees against customers.”

However, as noted above, Plaintiff has not provided evidence of harassment, an inherent requirement for a wrongful termination COA.

Therefore, Plaintiff fails to meet her burden.

Thus, summary adjudication is granted as to the 2^nd COA.

C. 4^th COA for Failure to Provide Meal and Rest Breaks

Labor Code sec. 512(a) provides in pertinent part: An employer may not employ an employee for a work period of more than five hours per day without providing the employee with a meal period of not less than 30 minutes, except that if the total work period per day of the employee is no more than six hours, the meal period may be waived by mutual consent of both the employer and employee.

Section 12 of California Wage Order 5 provides: (A) Every employer shall authorize and permit all employees to take rest periods, which insofar as practicable shall be in the middle of each work period. The authorized rest period time shall be based on the total hours worked daily at the rate of ten (10) minutes net rest time per four (4) hours or major fraction thereof. However, a rest period need not be authorized for employees whose total daily work time is less than three and one-half (31/2) hours. Authorized rest period time shall be counted as hours worked for which there shall be no deduction from wages.”

a. Defendant’s Burden

Defendant argues: Plaintiff signed a meal period waiver at the beginning of her employment agreeing to waive her meal breaks if she worked more than five hours, but less than six hours, in a workday. (SS No. 28). It was Plaintiff’s practice to take a break of at least 30-minutes in length if she worked more than six hours in a workday. (SS No. 30) Plaintiff never complained to any of her managers or supervisors that she was unable to take any meal or rest break.

Therefore, Defendant met its evidentiary burden.

b. Plaintiff’s Burden

Plaintiff argues: Plaintiff was not provided with her 10-minute uninterrupted rest periods due to working in a busy, understaffed restaurant. (PSSF 66). Additionally, on the occasions when Ms. Nguyen was working, she would not have time for a rest break and was not allowed one when there was work. (PSSF 66). Plaintiff and her co-workers were often so busy that they were forced to miss rest breaks. Plaintiff even complained to her managers, Tommy, Taiyo, and Vanna, regarding her missed rest breaks. (PSSF 64)

Therefore, as Plaintiff has provided evidence that she was precluded from an uninterrupted rest period of not less than 10 minutes for every period worked more than four (4) hours and uninterrupted statutory meal breaks on days she worked more than six hours either because the restaurant was busy during her shifts and constantly understaffed.

Thus, the court DENIES the MSA as to the 4^th COA.

D. 6^th COA for Failure to Provide Accurate Paystubs and 7^th COA for Waiting Time Penalties and 5^th COA for PAGA

Defendant argues that this claim is a derivative claim, predicated upon the alleged failure to pay meal period pay and/or rest period pay.

As the court denied the MSA as to the 4^th COA, the court DENIES the MSA as to the 6^th COA and 7^th COA as the motion is predicated upon the premise that these COAs are derivative of the alleged meal and rest breaks claims. As Plaintiff has made an adequate showing that she did suffer meal or rest break violations during her employment, she is an “aggrieved employee” for PAGA purposes such that MSA as to 8^th COA is also denied. (Labor Code §2699(c) “any person who was employed by the alleged violator and against whom one or more of the alleged violations was committed.”).)[8]

In sum, “FEHA's prohibitions are not a ‘civility code’ and are not designed to rid the workplace of vulgarity.” (Sheffield, supra, 109 Cal.App.4th at p. 161.) Thus, while the court in no way doubts that the interactions (Plaintiff and her other female coworkers) made them feel uncomfortable, mere discomfort is insufficient for FEHA purposes.

Based on the foregoing, as to the 1^st through 3^rd COAs, the MSJ/MSA is GRANTED. As to the PAGA based claims predicated upon various labor code violations, the MSJ/MSA is DENIED.

[1] The Reply only addresses the 1^st through 3^rd COAs, suggesting Plaintiff has met her evidentiary burden regarding the PAGA based claims.

[2] Defendant does not discuss the eighth COA for Failure to Timely Provide Personnel & Payroll Records. (See also Opp. p. 17, Header “J”.) Therefore, the motion will focus on COAs 1 through 7 absent an argument and analysis regarding the 8^th COA.

[3] To the extent that Plaintiff avers “harassment cases are rarely appropriate for disposition on summary judgment” (quoting Gov. Code § 12923(e) and Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243) that does not entail that harassment cases are always inappropriate for disposition on an MSJ. What is more, Nazir made its observation in response to trial courts more frequently “making determinations properly reserved for the factfinder, sometimes drawing inferences in the employer's favor,” pointing to intent. (Id. at p. 248.) However, whereas in Nazir, plaintiff’s co-workers called plaintiff (who is of Pakistani ancestry) scurrilous names “sand n[----],” “sand flea,” “rag head,” and “camel jockey” (id. at p. 258) and he had been reported to the Federal Bureau of Investigation as a “possible terrorist” likely by his co-workers (id. at p. 259), here, Plaintiff’s own allegations are predicated upon customers discriminating against Plaintiff, not Defendant’s employees (managers, supervisors, co-workers). What is more, Plaintiff’s own citation to Lewis, infra, for the elements of a FEHA claim is a workplace sexual assault case being adjudicated on a summary judgment motion. Therefore, absent authority that prohibits the adjudication of FEHA cases on a summary judgment motion, the court will address the merits of motion.

[4] Lyle heavily relies upon the Court’s decision in Onacle v. Sundowner Offshore Services, Inc. (1998) 523 U.S. 75.)

[5] (See also Dang Deposition, p. 35 of 44 of PDF [“Q.· Had you ever seen any of these four Hispanic · ·males before? · · · A.· No. · Q.· After they left the restaurant night -- that ·night, did you ever see any of these four Hispanic men ·again? · A.· No, not that I recall.”

[6] Though a key case and argument, as with other citations provided by Defendant, Plaintiff does not address it. To the extent that during the hearing Plaintiff may argue that Defendant cites to federal cases, “[b]ecause the objectives and wording of Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq.) are similar to that of FEHA, California courts often look to federal cases for assistance in interpreting FEHA.” (Sheffield, supra, 109 Cal.App.4th at p. 160.)

[7] “Q: And he -- and he said -- he would tell you that you were cute, he commented on your butt that one·time, said he liked it when you walked away.· What else ·did he verbally say to you that bothered you other ·than what you've told me so far? A.· So he would hand me tip.· So he said, "You ·should come by more often" and try to hand me tip. Q.· Okay.· Other than saying you should come by ·more often, what else would he say? A:· That's all I can recall.”, emphasis added.)

[8] As there is a viable PAGA claim, the court GRANTS the motion to continue trial (absent an opposition) as Plaintiff wishes to conduct further discovery on the PAGA claims for a class of 1,300 employees.