Judge Christopher K. Lui, Case Number: 21STCV37117, Date: 2024-09-10 Tentative Ruling

TENTATIVE RULING RE: MOTIONS FOR SUMMARY JUDGMENT/SUMMARY ADJUDICATION OF (1) DEFENDANT PETER POUWELS, AND (2) DEFENDANTS BROWNING-FERRIS INDUSTRIES OF CALIFORNIA AND REPUBLIC SERVICES, INC.

(2) Defendants Browning-Ferris Industries of California, Inc. (“BFT”) and Republic Services, Inc.

Three separate Plaintiffs alleging sexual harassment hostile work environment. Plaintiff Winfrey also alleges that he was retaliated against for making health and safety complaints.

Defendant Peter Pouwels moves for summary judgment or, in the alternative, summary adjudication.

Defendants Browning-Ferris Industries of California, Inc. (“BFT”) and Republic Services, Inc. also move for summary judgment or, in the alternative, summary adjudication.

The hearing on Defendants Browning-Ferris Industries of California, Inc. and Republic Services Inc.’s motion for summary judgment. is CONTINUED to November 1, 2024 at 8:30 a.m. Plaintiff is to filed his opposition documents by September 20, 2024.

Defendant Peter Pouwels moves for summary judgment is DENIED. Defendant’s motion for summary adjudication is DENIED as to Issue No. 1 re: the first cause of action, Issue No. 2 re: the second cause of action and Issue No. 3 re: punitive damages.

Defendants Browning-Ferris Industries of California, Inc. (“BFT”) and Republic Services, Inc.’s Motion For Summary Judgment/Summary Adjudication

Although Plaintiff filed a number of opposing documents on August 26, 2024, the Court does not have a copy of Plaintiff’s opposition documents to the amended motion for summary judgment/summary adjudication filed by Defendants Browning-Ferris Industries of California, Inc. and Republic Services Inc. Although the Court records reflect that Plaintiff filed an opposition to Defendant Republic’s motion for summary judgment on April 18, 2024 when the case was pending in Department 61, the Court does not have any opposing documents pertaining to the motion as it pertains to Defendant Browning-Ferris. As such, the hearing on the motion for summary judgment filed by Defendants Browning-Ferris Industries of California, Inc. and Republic Services Inc. is CONTINUED to November 1, 2024 at 8:30 a.m. Plaintiff is to filed his opposition documents by September 20, 2024.

Given the discussion below, Defendant Pouwels has not demonstrated that he is entitled to judgment as to all causes of action asserted against him. As such, the motion for summary judgment is DENIED.

No. 1: SUSTAINED as to whether declarant touched Plaintiff in an offensive or harassing way ow with intent to cause harm, offense or discomfort. Legal conclusion by lay witness; OVERRULED as to whether he was told anything by Plaintiff or anyone else at BFI—personal knowledge.

Pursuant to Civ. Proc. Code, § 437c(q), the Court declines to rule on Defendant’s evidentiary objections as they are asserted against evidence which the Court does not deem to be material to the disposition of this motion.

1. Luis Venegas et.al. v. Superior Court of the County of Los Angeles, Court of Appeal Second Appellate District Case No. B330746, Alternative Writ Order, dated December 13, 2023. (Exhibit A.)

2. Luis Venegas et.al. v. Browing-Ferris Industries of California, Inc et.al., Los Angeles Superior Court Case No. 21STCV11027, Court’s Minute Order regarding Hearing on Motion for Reconsideration dated January 16, 2024. (Exhibit B.)

3. Luis Venegas et.al. v. Superior Court of the County of Los Angeles Court of Appeal Second Appellate District Case No. B330746, Dismissal Order in light of the Superior Court’s compliance to with the Court’s December 13, 2023 alternative Writ, dated January 17, 2024. (Exhibit C.)

4. Marcus Hudson et.al. v. Browing-Ferris Industries of California, Inc et.al., Los Angeles Superior Court Case No. 21STCV02017, Court’s Minute Order regarding Defendants’ Motion for Summary Judgement or in the Alternative Summary Adjudication, dated October 12, 2023. (Exhibit D. )

5. Luis Venegas et.al. v. Browing-Ferris Industries of California, Inc et.al., Los Angeles Superior Court Case No. 21STCV11027, Court’s Minute Order regarding Peter Pouwels’Joinder in Defendants’ Motion for Summary Judgment, dated July 10, 2023. (Exhibit E.)

6. Luis Venegas et.al. v. Browing-Ferris Industries of California, Inc et.al., Los Angeles Superior Court Case No. 21STCV11027, Court’s Minute Order regarding Ruling on Submitted Matter: Defendants’ BFI and Republic’s Motions for Summary Judgment, dated July 10, 2023. (Exhibit F.)

Requests Nos. 1 – 6 are GRANTED, but only as to the existence of the orders and the legal effect thereof, not the truth of the matters recited therein, nor the facts determined therein. Defendant’s objection is OVERRULED.

“‘The court may in its discretion take judicial notice of any court record in the United States. [Citation.] This includes any orders, findings of facts and conclusions of law, and judgments within court records. [Citations.] However, while courts are free to take judicial notice of the existence of each document in a court file, including the truth of results reached, they may not take judicial notice of the truth of hearsay statements in decisions and court files.’ [Citation.]” (In re Vicks (2013) 56 Cal.4th 274, 314 [153 Cal. Rptr. 3d 471, 295 P.3d 863].)

(Richtek USA, Inc. v. uPI Semiconductor Corp. (2015) 242 Cal.App.4th 651, 658.)

Issue No. 1: Winfrey’s First Cause of Action against Pouwels for sexual harassment in violation the California Fair Employment and Housing Act (“FEHA”) fails because the allegedly harassing conduct by Pouwels was nothing more than a few isolated incidents and was not otherwise sufficiently severe or pervasive to create a hostile work environment as a matter of law.

36. Defendants engaged in unlawful pattern and practice of harassment against Plaintiffs and other employees in violation of the FEHA by engaging in lewd and sexual conduct towards them, making sexually offensive insults towards them, inappropriately touching them in an unwanted sexual manner, and/or acting in a hostile and abusive manner towards them based on their gender.

6. Defendant PETER POUWELS is an individual who resides in the State of California and was at all times relevant hereto an employee of Defendants BROWNING-FERRIS INDUSTRIES OF CALIFORNIA, INC. and REPUBLIC SERVICES, INC. At all relevant times, PETER POUWELS supervised Plaintiffs.

20. In or around September 2019, Defendants introduced a new Supervisor, Defendant Peter Pouwels, to their Sylmar facility where Plaintiff Grant Winfrey works. Supervisor Pouwels was a long-term employee of Defendants who Defendants transferred from its Petaluma, California facility. Plaintiff Winfrey is informed, believes, and hereon alleges that Defendants transferred Defendant Pouwels from its Petaluma facility to Sylmar due to Pouwels’ workplace misconduct, including but not limited to, Pouwels’ sexual harassment of Defendants’ employees. As result, Defendants were aware of Pouwels’ pattern and practice of engaging in workplace misconduct, including, but not limited to, engaging in sexual harassment. However, Defendants failed to take appropriate corrective action to prevent Pouwels’ continued harassment of Plaintiffs and other employees.

21. Shortly after Defendant Pouwels began to work at Defendants’ Sylmar facility, he began to engage in inappropriate and vulgar conduct of a sexual nature towards Plaintiff Winfrey and Defendants’ other employees. Pouwels began to refer to some of the employees, including Plaintiff Winfrey, as “handsome,” “cute,” “cutie pie” and “sweet cakes,” and make other inappropriate remarks over the handheld radios issued to the Plaintiffs and other employees. For example, in early 2020, an employee by the name of Marcus Hudson was operating a bulldozer that he reported was overheating through his handheld radio, to which Supervisor Pouwels responded, “Are you sure it’s not you making it hot?” inappropriately making a sexual innuendo and sexual advance towards Hudson. The inappropriate statement was heard over the radio by the other employees, including Plaintiff Winfrey, who was working in the field and which he found extremely offensive and inappropriate given Pouwels’ continuous inappropriate behavior towards Plaintiff Winfrey and Defendants’ other employees.

22. On several occasions, Defendant Pouwels approached Plaintiff Winfrey with a popsicle stating in an inappropriate sexual manner that “it tastes very good,” while licking the popsicle pretending that it was a penis and offering a popsicle to Plaintiff Winfrey in a sexually suggestive manner. Plaintiff Winfrey declined Defendant Pouwels’ sexually-suggestive offer, but Pouwels continued to insist lewdly stating, “it is mango flavor.” Given Defendant Pouwels’ ongoing inappropriate behavior in the workplace, Plaintiff Winfrey began to avoid Pouwels in hopes that the unwanted harassment would cease.

23. Furthermore, Defendant Pouwels regularly touched or tried to touch Plaintiff Winfrey and other employees by standing inappropriately close to employees and then touching their bodies without warning or permission, such as rubbing the employees’ backs or shoulders, touching their arms or legs, or by inappropriately brushing up against them including on their genitals or other private areas. For example, on one occasion while Plaintiff Winfrey was in Defendants’ office standing in between two desks, Defendant Pouwels walked past Winfrey rubbing his crotch on Plaintiff Winfrey’s buttocks. Plaintiff Winfrey became upset and immediately reacted with a “hey man!” to which Defendant Pouwels responded, “oh excuse me,” laughingly pretending that his assault had been an accident, even though Pouwels’ actions were clearly intentional. Plaintiff Winfrey became extremely uncomfortable around Defendant Pouwels because he had heard of other similar incidents wherein Pouwels engaged in inappropriate touching and/or physical assaults of other employees.

24. On another occasion, Defendant Pouwels approached Plaintiff Winfrey demanding that Mr. Winfrey hug him because he (Pouwels) was going to be leaving Republic Services. Plaintiff Winfrey immediately backed away and specifically told Defendant Pouwels that he did not feel comfortable hugging him because he (Winfrey) had recently recovered from COVID-19. In reality, Plaintiff Winfrey had become distrustful of Defendant Pouwels’ intentions due to his incessant harassing and sexualized behavior. However, despite his protests Defendant Pouwels responded, “I don’t care, I’m not going to get it” (COVID), “come on and give me a hug,” while standing uncomfortably close to Plaintiff Winfrey and forcing himself on Winfrey for a hug, despite Winfrey’s express refusal of his demands.

25. In addition to the inappropriate comments, interactions, and unwanted touching, Defendant Pouwels also began to try to meet with Plaintiff Winfrey and other employees outside of work by making inappropriate invitations of a sexual nature that made Plaintiff Winfrey and other employees uncomfortable. For example, while Plaintiff Winfrey was working in Defendants’ observation deck, Defendant Pouwels approached Winfrey and invited him over to his house “for a barbeque.” Given Pouwels’ suggestive tone and demeanor (as well as his previous sexually inappropriate behavior), it was evident to Plaintiff Winfrey that Pouwels’

‘invitation’ was yet another improper sexual advance. Plaintiff Winfrey thus found the invitation inappropriate and flatly declined. Plaintiff Winfrey later learned that Pouwels had made similar inappropriate invitations to other employees.

26. Despite Defendants’ employees repeated complaints to Defendants concerning Defendant Pouwels’ inappropriate and lewd behavior, including his harassing conduct, Defendants failed to take appropriate, corrective action to end the harassment and protect their

employees. As result, Pouwels’ harassment towards Plaintiffs and other employees continued and even worsened. In fact, when two employees by the names of Marcus Hudson and Melvin Lacy complained to Defendants about Defendant Pouwels’ incessant sexual harassment and physical assaults, Defendants’ supervisors simply laughed and ignored their complaints, and thereafter began to retaliate against Mr. Hudson and Mr. Lacy by cutting their work hours and changing their schedules, while Defendants allowed Pouwels to continue working without repercussions, and thus sanctioning and ratifying his inappropriate behavior.

The Legislature hereby declares its intent with regard to application of the laws about harassment contained in this part.

(a) The purpose of these laws is to provide all Californians with an equal opportunity to succeed in the workplace and should be applied accordingly by the courts. The Legislature hereby declares that harassment creates a hostile, offensive, oppressive, or intimidating work environment and deprives victims of their statutory right to work in a place free of discrimination when the harassing conduct sufficiently offends, humiliates, distresses, or intrudes upon its victim, so as to disrupt the victim’s emotional tranquility in the workplace, affect the victim’s ability to perform the job as usual, or otherwise interfere with and undermine the victim’s personal sense of well-being. In this regard, the Legislature affirms its approval of the standard set forth by Justice Ruth Bader Ginsburg in her concurrence in Harris v. Forklift Systems (1993) 510 U.S. 17 that in a workplace harassment suit “the plaintiff need not prove that his or her tangible productivity has declined as a result of the harassment. It suffices to prove 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.” (Id. at 26).

(b) 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. In that regard, the Legislature hereby declares its rejection of the United States Court of Appeals for the 9th Circuit’s opinion in Brooks v. City of San Mateo (2000) 229 F.3d 917 and states that the opinion shall not be used in determining what kind of conduct is sufficiently severe or pervasive to constitute a violation of the California Fair Employment and Housing Act.

(c) The existence of a hostile work environment depends upon the totality of the circumstances and a discriminatory remark, even if not made directly in the context of an employment decision or uttered by a nondecisionmaker, may be relevant, circumstantial evidence of discrimination. In that regard, the Legislature affirms the decision in Reid v. Google, Inc. (2010) 50 Cal.4th 512 in its rejection of the “stray remarks doctrine.”

(d) The legal standard for sexual harassment should not vary by type of workplace. It is irrelevant that a particular occupation may have been characterized by a greater frequency of sexually related commentary or conduct in the past. In determining whether or not a hostile environment existed, courts should only consider the nature of the workplace when engaging in or witnessing prurient conduct and commentary is integral to the performance of the job duties. The Legislature hereby declares its disapproval of any language, reasoning, or holding to the contrary in the decision Kelley v. Conco Companies (2011) 196 Cal.App.4th 191.

(e) Harassment cases are rarely appropriate for disposition on summary judgment. In that regard, the Legislature affirms the decision in Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243 and its observation that hostile working environment cases involve issues “not determinable on paper.”

Defendant does not dispute that the alleged events pled at Complaint, ¶¶ 6, 20 – 26 took place, buy tries to characterize them as not severe or pervasive harassment. However, what actually happened and the manner in which the alleged statements were said, are triable issue of material fact that the Court cannot say are insufficient to constitute harassment as a matter of law, given Gov. Code, § 12923. Defendant cites cases which were decided before Gov. Code, § 12923 was adopted are no longer good law to the extent they fail to take into account the key principles expressed in § 12923. (Beltran v. Hard Rock Hotel Licensing, Inc. (2023) 97 Cal.App.5th 865, 878-81 [bold emphasis and underlining added].)

Defendant fails to meet his initial burden on summary adjudication as to this issue, and the burden does not shift to Plaintiff to raise a triable issue of material fact.

The motion for summary adjudication as to Issue No. 1 re: the first cause of action is DENIED.

Issue No. 2: Winfrey’s Second Cause of Action Against Pouwels for sexual assault and/or sexual battery fails as a matter of law because the undisputed material facts demonstrate that Pouwels did not perform the alleged conduct with the requisite intent required to maintain claims for sexual assault and/or sexual battery as a matter of law.

This cause of action is for assault and/or battery (Complaint, ¶ 43). It is not for sexual assault and/or sexual battery[1], which have different elements. The moving papers address the sexual battery aspect of this claim using the framework of Civil Code section 1708.5, which is not the relevant law for a battery claim.

Historically, assault has been defined as an attempted battery. (Citations omitted.) The harm addressed is a battery. Williams rejects the view that assault requires an intent to commit a battery. It holds that “assault only requires an intentional act and actual knowledge of those facts sufficient to establish that the act by its nature will probably and directly result in the application of physical force against another.” Williams, supra, 26 Cal. 4th at p. 790. The test is objective. The actor “need not be subjectively aware of the risk that a battery might occur.” (Id. at p. 788, fn. omitted.) This defines the mental state as a species of negligent conduct, a negligent assault. . . .

(People v. Wright (2002) 100 Cal. App. 4th 703, 706 [bold emphasis and underlining added].)

The essential elements of a cause of action for battery are: (1) defendant touched plaintiff, or caused plaintiff to be touched, with the intent to harm or offend plaintiff; (2) plaintiff did not consent to the touching; (3) plaintiff was harmed or offended by defendant’s conduct; and (4) a reasonable person in plaintiff’s position would have been offended by the touching. (CACI No. 1300; see Kaplan v. Mamelak (2008) 162 Cal.App.4th 637, 645 [75 Cal. Rptr. 3d 861] (Kaplan).)

Here, whether or not Defendant Pouwels accidentally or intentionally rubbed his crotch on Plaintiff’s buttocks, as alleged in ¶ 23 of the Complaint, is a triable issue of material fact. A jury could determine that, if Pouwels intended to make such contact, a reasonable person in Plaintiff’s position would have been offended by such touching.

Defendant has not met his initial burden on this issue, and the burden does not shift to Plaintiff to raise a triable issue of material fact.

The motion for summary adjudication as to Issue No. 2 re: the second cause of action is DENIED.

Issue No. 3: Winfrey’s claim for punitive damages against Pouwels fails because the undisputed material facts negate any credible finding or inference that Pouwels acted with oppression, fraud, or malice within the meaning of California Civil Code section 3294.

A defendant is entitled to summary adjudication on “one or more claims for [punitive] damages” if he establishes “there is no merit to [the claim], as specified in Section 3294 of the Civil Code . . . .” (Code Civ. Proc., § 437c, subd. (f)(1)). A defendant establishes a claim has no merit by showing that an element of the claim cannot be established. (Code Civ. Proc., § 437c, subd. (p)(2).) To do so, a defendant must show that the plaintiff does not possess, and cannot reasonably obtain, needed evidence. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854.) To meet its burden, a defendant must present evidence; he may not simply point out that the plaintiff does not possess, and cannot reasonably obtain, needed evidence. (Id. at 854-55.) “Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists . . . .” (Code Civ. Proc., § 437c, subd. (p)(2).)

Here, Defendant has not cited evidence establishing that Plaintiff cannot reasonably obtain evidence that Defendant acted with malice (i.e., an intent to cause injury—Civ. Code, 3294(c)(1) ) in subjecting Plaintiff to sexual harassment and battery.

[S]ummary judgment may be denied in the discretion of the court, where the only proof of a material fact offered in support of the summary judgment is an affidavit or declaration made by an individual who was the sole witness to that fact; or where a material fact is an individual’s state of mind, or lack thereof, and that fact is sought to be established solely by the individual’s affirmation thereof.

Defendant has failed to meet his initial burden on this issue, and the burden does not shift to Plaintiff to raise a triable issue of material fact.

[1]

Sexual battery is defined in Civil Code § 1708.5 as follows:

(a) A person commits a sexual battery who does any of the following:

(1) Acts with the intent to cause a harmful or offensive contact with an intimate part of another, and a sexually offensive contact with that person directly or indirectly results.

(2) Acts with the intent to cause a harmful or offensive contact with another by use of the person’s intimate part, and a sexually offensive contact with that person directly or indirectly results.

(3) Acts to cause an imminent apprehension of the conduct described in paragraph (1) or (2), and a sexually offensive contact with that person directly or indirectly results.

(4) Causes contact between a sexual organ, from which a condom has been removed, and the intimate part of another who did not verbally consent to the condom being removed.

(5) Causes contact between an intimate part of the person and a sexual organ of another from which the person removed a condom without verbal consent.

(b) A person who commits a sexual battery upon another is liable to that person for damages, including, but not limited to, general damages, special damages, and punitive damages.

(c) The court in an action pursuant to this section may award equitable relief, including, but not limited to, an injunction, costs, and any other relief the court deems proper.

(d) For the purposes of this section:

(1) “Intimate part” means the sexual organ, anus, groin, or buttocks of any person, or the breast of a female.

(2) “Offensive contact” means contact that offends a reasonable sense of personal dignity.

(e) The rights and remedies provided in this section are in addition to any other rights and remedies provided by law.

(Civ. Code § 1708.5.)