Judge: Christopher K. Lui, Case: 23STCV22900, Date: 2024-04-18 Tentative Ruling
Case Number: 23STCV22900 Hearing Date: April 18, 2024 Dept: 76
Pursuant to California Rule of Court
3.1308(a)(1), the Court does not desire oral argument on the motion addressed
herein. Counsel must contact the staff
in Department 76 to inform the Court whether they wish to submit on the
tentative, or to argue the matter. As
required by Rule 3.1308(a), any party seeking oral argument must notify ALL
OTHER PARTIES and the staff of Department 76 of their intent to appear and
argue.
Notice to Department 76 may be sent by email to
smcdept76@lacourt.org or telephonically at 213-830-0776.
Per Rule of Court 3.1308, if notice of intention
to appear is not given, the Court may adopt the tentative ruling as the final
ruling.
TENTATIVE RULING
Defendant Dover Corporation and Defendant Anthony, Inc.’s notices of joinder in the motion to compel arbitration are GRANTED as timely and appropriate, given the allegations against all Defendants.
Defendants Randstad North America, Inc. and Randstad Inhouse Services, LLC’s motion to compel arbitration and dismiss action is DENIED.
Defendant Dover Corporation’s demurs to the First Amended Complaint is SUSTAINED with leave to amend as to the first cause of action for sexual harassment, second cause of action for gender discrimination, third cause of action for retaliation under FEHA, fourth cause of action for failure to prevent under FEHA, eighth cause of action for violation of Labor Code, § 1102.5, ninth cause of action for wrongful termination in violation of public policy and OVERRULED as to the fifth cause of action for violation of Civil Code, § 51.7, sixth cause of action for violation of Civil Code, § 51.9, seventh cause of action for violation of Civil Code, § 52.1, tenth cause of action for assault and battery, eleventh cause of action for intentional infliction of emotional distress, and the twelfth cause of action for negligent hiring, training and supervision/negligent infliction of emotional distress.
Plaintiff is given 30 days’ leave to amend where indicated.
ANALYSIS
Notices of Joinder
Defendant Dover Corporation and Defendant Anthony, Inc.’s notices of joinder in the motion to compel arbitration are GRANTED as timely and appropriate, given the allegations against all Defendants.
Defendant
Dover Corporation’s request for judicial notice of Declaration of Joseph Leonard
in Support of Dover Corporation’s Motion to Dismiss in the matter entitled Angel
Lujan v. Dover Pump Solutions Group, et al., No. 20 STCV09522, filed on November
7, 2022, in Los Angeles Superior Court is DENIED as unnecessary to the ruling on
this notice of joinder. The Court need only take
judicial notice of relevant materials. (Mangini v. R.J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063, overruled
in part on other grounds noted in In re Tobacco Cases II (2007) 41 Cal.4th 1257, 1276.) The
Court may deny a request for judicial notice of material unnecessary to its decision.
(Rivera v. First DataBank, Inc. (2010) 187 Cal.App.4th
709, 713.)
Defendant
Anthony Inc.’s request for judicial notice of court records in this action is GRANTED
per Evid. Code, § 452(d)(court records).
Motion To Compel Arbitration and Dismiss Action
Request For Judicial Notice
Defendants’
request that the Court take judicial notice of various superior court rulings. The
request is DENIED as not relevant to the Court’s determination of this motion, as
they are not binding authority.
Discussion
Defendants Randstad North America, Inc.
and Randstad Inhouse Services, LLC move to compel arbitration and dismiss action.
Existence
of Agreement To Arbitrate
Under
California law, arbitration agreements are valid, irrevocable, and enforceable,
save upon such grounds as exist at law or in equity for the revocation of any contract.
(Blake v. Ecker (2001) 93 Cal.App.4th
728, 741 overruled on other grounds by Le Francois v. Goel (2005) 35 Cal.4th
1094.) A party petitioning to compel arbitration
has the burden of establishing the existence of a valid agreement to arbitrate and
the party opposing the petition has the burden of proving, by a preponderance of
the evidence, any fact necessary to its defense. (Banner Entertainment, Inc. v. Superior Court (1998) 62 Cal.App.4th 348,
356-57.)
On
May 6, 2021, Plaintiff electronically signed an arbitration agreement, which is
attached as E to the Declaration of Kareem Johnson. (See Johnson Decl., ¶¶
2 – 11; Exhs. A – E thereto.) Plaintiff does not dispute that she signed this agreement.
The arbitration agreement includes the
following language:
As consideration
for accepting or continuing my employment with Randstad, and I agree to use binding
arbitration, instead of going to court, for any “Covered Claims” that arise between
me and Randstad, including its divisions, operating companies, affiliates, related
companies, subsidiaries and parent company, and/or their current or former employees
(“Agreement”). I also understand that any Randstad clients to which I provide services
on assignment are intended third-party beneficiaries of this Agreement.
“Covered Claims”
are any legal claims belonging to me or to Randstad that relate to my recruitment,
hire, employment, client assignments and/or termination including, but not limited
to, those concerning wages or compensation, consumer reports, benefits, contracts,
discrimination, harassment, retaliation, leaves of absence or accommodation
for a disability.
“Covered Claims
under this agreement do not include:
· any claims I cannot
be required to arbitrate as a matter of law. The parties agree, however, that if
any claim brought in court arises out of an underlying dispute that is subject to
arbitration, the judicial action for that claim will be stayed pending completion
of the arbitration;
· claims for workers’
compensation or unemployment compensation; and
· claims or charges with
any governmental or administrative agency.
(Bold emphasis added.)
Here,
Plaintiff’s claim for sexual harassment, FEHA-based related claims, violation of
Civil Code, §§ 51.7, 51.9 and 52.1, Labor Code, § 1102.5, and common law torts come
within the broad scope of the language defining “Covered Claims” above.
However,
Plaintiff argues that the Ending Forced Arbitration of Sexual Assault and Sexual
Harassment Act (hereinafter, “the Act”) dictates that “no predispute arbitration
agreement or predispute joint-action waiver shall be valid or enforceable with respect
to a case which is filed under Federal, Tribal, or State law and relates to the
sexual assault dispute or the sexual harassment dispute.” (9 U.S.C. § 402(a).) That
Act provides at 9 USC, §§ 401 and 402 as follows:
In this chapter [9 USCS §§ 401 et seq.]:
(1) Predispute arbitration agreement. The term “predispute arbitration
agreement” means any agreement to arbitrate a dispute that had not yet arisen at
the time of the making of the agreement.
(2) Predispute joint-action waiver. The term “predispute joint-action
waiver” means an agreement, whether or not part of a predispute arbitration agreement,
that would prohibit, or waive the right of, one of the parties to the agreement
to participate in a joint, class, or collective action in a judicial, arbitral,
administrative, or other forum, concerning a dispute that has not yet arisen at
the time of the making of the agreement.
(3) Sexual assault dispute. The term “sexual assault dispute” means a
dispute involving a nonconsensual sexual act or sexual contact, as such terms are
defined in section 2246 of title 18 [18 USCS § 2246] or similar applicable Tribal
or State law, including when the victim lacks capacity to consent.
(4) Sexual harassment dispute. The term “sexual harassment dispute” means
a dispute relating to conduct that is alleged to constitute sexual harassment under
applicable Federal, Tribal, or State law.
(9 USCS
§ 401.)
(a) In general. Notwithstanding any other provision
of this title, at the election of the person alleging conduct constituting a sexual
harassment dispute or sexual assault dispute, or the named representative of a class
or in a collective action alleging such conduct, no predispute arbitration agreement
or predispute joint-action waiver shall be valid or enforceable with respect
to a case which is filed under Federal, Tribal, or State law and relates
to the sexual assault dispute or the sexual harassment dispute.
(b) Determination of applicability. An issue as
to whether this chapter [9 USCS §§ 401 et seq.] applies with respect to a dispute
shall be determined under Federal law. The applicability of this chapter [9 USCS
§§ 401 et seq.] to an agreement to arbitrate and the validity and enforceability
of an agreement to which this chapter [9 USCS §§ 401 et seq.] applies shall be determined
by a court, rather than an arbitrator, irrespective of whether the party resisting
arbitration challenges the arbitration agreement specifically or in conjunction
with other terms of the contract containing such agreement, and irrespective of
whether the agreement purports to delegate such determinations to an arbitrator.
(9 USCS
§ 402 [bold emphasis added].)
The Court construes 9 USC § 402 as invalidating
an entire agreement if it applies “with respect to a case” which “relates to” a
sexual harassment dispute. The parties disagree was to whether 9 USC § 402 applies
to Plaintiff’s claims because the Legislative Note to §
402 provides: “This section is applicable to
any dispute or claim that arises or accrues on or after March 3, 2022,
as provided by § 3 of Act March 3, 2022, P.L. 117-90, which appears as 9 USCS §
401 note.” (9 USCS § 402 [bold emphasis added].)
The Court agrees with Plaintiff that a dispute does not arise
simply when the cause of action accrues.
We conclude the date that a dispute has arisen for purposes of the
Act is a fact-specific inquiry in each case, but a dispute does not arise solely
from the alleged sexual conduct. A dispute arises when one party
asserts a right, claim, or demand, and the other side expresses disagreement or
takes an adversarial posture. (Famuyide,
supra, 2023 WL 5651915 at p. *3.) In other words, “[a] dispute cannot
arise until both sides have expressed their disagreement, either through words or
actions.” (Id. at p. *8.) Until there is a conflict or disagreement, there
is nothing to resolve in litigation. (Ibid.)
. . .
The Center defendants contend, however, that a dispute arises when
the alleged conduct occurs that constitutes sexual assault or sexual harassment,
citing Barnes v. Festival Fun Parks, LLC (W.D.Pa., June 27, 2023, Civil No. 3:22-cv-165) 2023 WL 4209745, p.
*1. We disagree. The Barnes court acknowledged that the terms “dispute” and “claim” have distinct
meanings as used by Congress, but then conflated the terms in that court's analysis.
(Barnes, supra, at pp. *26–*27.)
(7) In general, a claim arises for the first time when the plaintiff suffers
an injury. (In
re Marriage of Klug (2005) 130 Cal.App.4th 1389, 1398
[31 Cal. Rptr. 3d 327].) A cause of action accrues, and the statute of limitations
begins to run, when the last element essential to the cause of action occurs and
the plaintiff is entitled to maintain an action. (Id. at pp. 1399–1400.) A cause of action
often arises and accrues at the same time, but the dates can be different under
some circumstances, such as when a cause of action arises at the time of injury
but does not accrue until discovery. (Ibid.) Unlike a claim, however, a dispute does not arise simply because
the plaintiff suffers an injury; it additionally requires a disagreement or controversy.
(Hodgin v. Intensive Care Consortium,
Inc., supra, 2023 WL 2751443 at p. *2; Famuyide, supra, 2023 WL 5651915 at p. *3.)
(8) “The definitions within the [Act] also make clear that a dispute
requires more than an injury. The [Act] defines a ‘sexual assault dispute’ as ‘a
dispute involving a nonconsensual act or sexual conduct,’ and it defines ‘sexual
harassment dispute’ as ‘a dispute relating to conduct that is alleged to constitute sexual harassment.’
[(9 U.S.C. § 401 (italics added).)] If the underlying conduct alone—the sexual assault
or harassment—automatically gave rise to a dispute, then the legislature's use of
the word ‘dispute’ within these two definitions would be superfluous. A ‘sexual
assault dispute’ would merely mean ‘a nonconsensual act or sexual conduct.’ And
a ‘sexual harassment dispute’ would mean ‘conduct that is alleged to constitute
sexual harassment.’ This cannot be so. (9) ‘[A] statute should be construed so that effect is given to all its
provisions, so that no part will be inoperative or superfluous, void or insignificant.’
[Citation.]” (Famuyide, supra, 2023 WL 5651915 at p. *11.)
(Kader v. Southern
California Medical Center, Inc. (2024) 99 Cal.App.5th 214, 222-24 [bold emphasis
added].)
Under the reasoning
of Kader, the Court must distinguish between disputes that arise and claims
which accrue, for the Legislature used both concepts in the alternative and the
Court must construe the statute so as to avoid superfluousness. In this regard,
even if a claim accrued before the effective date of the Act, if a dispute arose
after the effect date of the Act—March 3, 2022—then the
Act would apply.
Here, the 1AC—which was filed before the motion to
compel arbitration was brought—alleges as follows:
25. Throughout
her employment, PLAINTIFF was persistently and pervasively
sexually harassed
by her immediate supervisor, ULICES.
26. ULICES repeatedly
asked PLAINTIFF, both in person and over text message, to have sex and engage in
a sexual relationship with him. On different
occasions, for example, ULICES messaged PLAINTIFF: “Are you willing to make love tonight”; “Are you
willing to make love today with me say yes yes let’s go to a hotel”; “Come to my
house tomorrow we’ll make love in my room in my own bed wouldn’t you like that tell
me”; and “You love me tell me yes or no tell me.”
27. ULICES’ harassment
of PLAINTIFF was persistent and pervasive and occurred consistently over the course
of several months.
28. When PLAINTIFF
rebuffed ULICES’ sexual advances, ULICES retaliated
against her by
threatening her job and running over PLAINTIFF’s foot with a heavy cart loaded with
panes of glass. At one point, ULICES told
PLAINTIFF that the only reason she had a job was because of him but that he would
no longer protect her from termination.
29. ULICES’ acts
of sexual harassment and violence constituted extreme and
outrageous conduct
performed with the intent of causing, or with reckless disregard for the probability
of causing, PLAINTIFF to suffer severe emotional distress.
30. PLAINTIFF
reported ULICES’ harassment to Gilbert Sanchez-Rea, her
Company Representative
with RANDSTAD NORTH AMERICA INC. and RANDSTAD INHOUSE SERVICES LLC. Mr. Sanchez-Rea instructed PLAINTIFF to inform
the Human Resources Department at the plant.
31. In or around
January 2022, PLAINTIFF, acting on Mr. Sanchez-Rea’s advice,
made a report
of sexual harassment to the ANTHONY INTERNATIONAL, DOVER FOOD RETAIL, and DOVER
CORPORATION Human Resources Department that was responsible for the ANTHONY INTERNATIONAL
plant.
32. In response
to PLAINTIFF’s report about ULICES’ harassment, DEFENDANTS DOVER CORPORATION, DOVER
FOOD RETAIL, and ANTHONY INTERNATIONAL (temporarily) terminated ULICES’ employment.
33. Shortly thereafter,
in or around February 2022, PLAINTIFF was encouraged to take five days off by Mr.
Sanchez-Rea with RANDSTAD NORTH AMERICA INC. and RANDSTAD INHOUSE SERVICES LLC.
34. Acting on
Mr. Sanchez-Rea’s advice, PLAINTIFF received permission from her manager at the
ANTHONY INTERNATIONAL plant, Gabriel, to take a week off work—and she used three
of her sick days in taking those five days off work. PLAINTIFF also cleared the leave with another
manager, WILLY.
(1AC, ¶¶ 25 – 34.)
The
allegations do not demonstrate that a dispute arose prior to March 3, 2022, because
Defendants did not dispute that Ulices engaged in the conduct of which Plaintiff
complained. By failing to do anything about it and retaliating against Plaintiff
for her complaints, Defendants may be deemed to have admitted that Ulices engaged
in such conduct but were, in effect, sweeping such conduct under the rug. As the
Kader court recognized: “In fact, Kader alleged Rasekhi threatened
to fire him if he told anyone, implying that Rasekhi did not dispute the conduct.”
(Kader, supra, 99 Cal.App.5th at 224.) Indeed,
Defendant’s termination of Plaintiff’s employment in retaliation for her complaints
can be deemed ratification of Ulices’ conduct. (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 726.)
Plaintiff notes that Ulices’ employment was only temporarily terminated, but he
was reinstated as a supervisor after Plaintiff was terminated. (1AC, ¶¶ 32, 38.)
As such, because a dispute did not arise
for purposes of the Act until Plaintiff filed her Complaint on September 21, 2023,
the Act applies to Plaintiff’s claims which “relate” to her allegations of sexual
harassment. As noted above, the Act operates to invalidate and render unenforceable
the arbitration agreement as against Plaintiff’s claims.
The Court need not address whether the
Agreement is unconscionable. In Kader, the court upheld the trial court’s
invalidation of the predispute arbitration agreement without the need to discuss
unconscionability. (Kader, supra, 99 Cal.App.5th at 225.)
The motion to compel arbitration is DENIED.
Demurrer
Defendant’s Evidentiary Objections
Declaration
of Emily C. Barbour, Esq.
Nos. 1 - 16: SUSTAINED. Extrinsic evidence
is not permitted in connection with the ruling on a demurrer.
Request For Judicial
Notice
Defendant requests that the Court take
judicial notice of the following: (1) Court Order granting Dover Corporation’s Motion
to Dismiss in the matter entitled Angel Lujan v. Dover Pump Solutions Group, et
al., No. 20 STCV 09522, filed on November 7, 2022, in Los Angeles Superior Court;
(2) California Secretary of State Filing History for Dover Food Retail, which was
accessed on January 24, 2024.
Request No. 1 is DENIED as not relevant to the Court’s determination of this motion,
as this is not binding authority. Request No. 2 is GRANTED. The Court may take judicial notice of a business
entity’s corporate status as reflected in the Secretary of State’s records. (Gamet v. Blanchard (2001) 91 Cal.App.4th
1276, 1286; Pedus Bldg. Servs. v. Allen (2002) 96 Cal.App.4th 152, 156 n.2.)
Meet and Confer
The Declaration of Jennifer Kearns reflects
that Defendant’s counsel satisfied the meet and confer requirement set forth in
Civ. Proc. Code, § 430.41.
Discussion
Defendant Dover Corporation demurs to the First Amended
Complaint as follows:
1. First through Twelfth Causes of Action.
Defendant argues that Plaintiff lumps
all entity defendants together and relies upon conclusory statements devoid of facts
that there was an employment/agency relationship between herself and Dover Corp.
Defendant argues that it has never been Plaintiff’s employer.
The question is whether Dover Corp. may be found to be an employer under the totality of circumstances
analysis set forth in Vernon v. State of California (2004) 116 Cal.App.4th
114, 124:
“Of these factors,
the extent of the defendant's right to control the means and manner of the workers'
performance is the most important.” [Citations Omitted]. In all cases, an “employer
must be an individual or entity who extends a certain degree of control over the
plaintiff.” [Citation Omitted]. The focus of our evaluation of the right to control
the plaintiff's work performance is upon “not only the result but also the means
by which the result was accomplished.” [Citation Omitted].
(Id. at 126.)
¶ 18 of the 1AC alleges that Dover Corporation
acquired Anthony International in 2012. Plaintiff alleges that Plaintiff signed
her employment contract with Randstad North America Inc. in June 2021. (1AC, ¶ 15.)
Thus, this is not a situation where Dover would have acquired existing contractual
liabilities of Anthony International, nor took over all employees of Anthony International.
Dover had acquired Anthony International nine years before Plaintiff ever worked
for Anthony International.
Plaintiff alleges at ¶ 19 that the Sylmar
plant where Plaintiff worked is Defendant Anthony International’s principal address,
but was also identified on Plaintiff’s paycheck as Dover Food Retail’s address.
Plaintiff alleges at ¶ 20 that Dover Food Retail was the client of Randstad and
Dover Food Retail is part of Cover Corporation. Plaintiff also alleges that Plaintiff’s
immediate supervisor at Anthony International, Defendant Ulices, was an employee
of Anthony International, Dover Food Retail and Dover Corporation. (1AC, ¶ 22.)
Plaintiff also alleges that she made complaints of Ulices’ sexual harassment to
the Human Resources Department of Anthony International, Dover Food Retail and Dover
Corporation. (1AC, ¶ 31.) In response, Defendants temporarily terminated Ulices’
employment. (¶ 32.) Plaintiff alleges that all entity defendants had the power to
discipline and terminate Ulices. (¶ 44.)
“ ‘Because the
FEHA is remedial legislation, which declares “[t]he opportunity to seek, obtain
and hold employment without discrimination” to be a civil right (§ 12921), and expresses
a legislative policy that it is necessary to protect and safeguard that right (§
12920), the court must construe the FEHA broadly, not … restrictively. Section 12993,
subdivision (a) directs: “The provisions of this part shall be construed liberally
for the accomplishment of the purposes thereof.” If there is ambiguity that is not
resolved by the legislative history of the FEHA or other extrinsic sources, we are
required to construe the FEHA so as to facilitate the exercise of jurisdiction by
the [Fair Employment and Housing Commission]. [Citation.]’ [Citation.]” (Citation omitted.)
“The FEHA, however, prohibits only ‘an employer’ from engaging in improper
discrimination. (§ 12940, subd. (a).)” (Citation
omitted.) The FEHA predicates potential “liability on the status of the defendant
as an ‘employer.’ (§ 12926.)” (Citation
omitted.)
The
fundamental foundation for liability is the “existence of an employment relationship between the one who
discriminates against another and that other who finds himself the victim of that
discrimination.” (Citation
omitted.)
FEHA
requires “some connection with an employment relationship,” although the connection
“need not necessarily be direct.” (Citation omitted.) “If there is no proscribed ‘employment
practice,’ the FEHA does not apply.” (Citation omitted.)
Also, for purposes of imposition
of liability for unlawful employment practices, “[t]he FEHA provides limited definitions
of the terms ‘employee’ and ‘employer.’ (§ 12926, subds. (c) & (d).)” (Citation [*124] omitted.) The FEHA defines
an employer “as follows: ‘ “Employer” includes any person regularly employing five
or more persons, or any person acting as an agent of an employer, directly or indirectly,
the state or any political civil
subdivision of the state, and cities, except as follows: [¶] “Employer” does not
include a religious association or corporation not organized for private profit.’
(§ 12926, subd. (d).) The first paragraph of section 12926, subdivision (d) does
provide some definition of an employer. But the second paragraph of section 12926,
subdivision (d) provides a description of what is not an employer. Beyond these limited definitions,
the FEHA does not define an employer, employee, or what constitutes employment.
In order to recover under the discrimination in employment provisions of the FEHA,
the aggrieved plaintiff must be an employee.” (Citations omitted.)
Appellant is an employee, but not
of the State, either directly or indirectly. Although the statutes provide only
a nominal definition of “employer,” and the cases have defined the term with “magnificent
circularity,” pursuant to the allegations of appellant’s first amended complaint
the State does not fall within the scope of the definition under any recognized
test or standards. (Citations omitted.) The various designated tests adopted by
the courts to determine the existence of an employer/employee relationship have
articulated many of the same or similar governing standards, and have “ ‘little
discernible difference’ ” between them. (Citations omitted.) The common and prevailing principle
espoused in all of the tests directs us to consider the “totality of circumstances”
that reflect upon the nature of the work relationship of the parties, with emphasis
upon the extent to which the defendant controls the plaintiff’s performance of employment
duties. (Citations omitted.) “There is no magic formula for determining whether
an organization is a joint employer. Rather, the court must analyze ‘myriad facts
surrounding the employment relationship in question.’ [Citation.] No one factor is decisive. [Citation.]”
(Citations omitted.) “[T]he precise contours of an employment relationship can only be established
by a careful factual inquiry.” (Citation omitted.)
Factors to be taken into account in assessing the relationship of the
parties include payment of salary or other employment benefits and Social Security
taxes, the ownership of the equipment necessary to performance of the job, the location
where the work is performed, the obligation of the defendant to train the employee,
the authority of the defendant to hire, transfer, promote, discipline or discharge
the employee, the authority to establish work schedules and assignments, the defendant’s
discretion to determine the amount of compensation earned by the employee, the skill
required of the work performed and the extent to which it is done under the direction
of a supervisor, whether the work is part of the defendant’s regular business operations,
the skill required in the particular occupation, the duration of the relationship
of the parties, and the duration of the plaintiff’s employment. (Citations omitted)
“ ‘Generally, … the individual factors
cannot be applied mechanically as separate tests; they are intertwined and their
weight depends often on particular combinations.’ [Citation.]” (Citation omitted.)
“Of these factors, the extent of the defendant’s right to control
the means and manner of the workers’ performance is the most important.” (Citations omitted.) In all cases, an “employer
must be an individual or entity who extends a certain degree of control over the
plaintiff.” (Citation omitted.) The focus of our evaluation of the
right to control the plaintiff’s work performance is upon “not only the result but
also the means by which the result was accomplished.” (Citation omitted.) And particularly, the inquiry considers
the level of control an organization asserts over an individual’s access to employment
opportunities. (Citations omitted.) Further, “the control an organization asserts
must be ‘significant,’ [citation], and there must be a ‘sufficient indicia of an
interrelationship … to justify the belief on the part of an aggrieved employee that
the [alleged co-employer] is jointly responsible for the acts of the immediate employer.’
[Citations.]” (Citations
omitted.) In determining liability under the FEHA, we look “ ‘to the degree an
entity or person significantly affects access to employment’ … .” (Citation omitted.)
(Vernon v. State of Cal. (2004) 116 Cal.App.4th 114, 123-26 [bold emphasis added].)
Here, for purposes of Defendant Dover’s
liability as Plaintiff’s employer, Plaintiff fails to allege facts which demonstrate
that Defendant Dover exercised any degree of control of Plaintiff’s work performance.
At most, Plaintiff alleges that Dover shares an address with Anthony International,
and Ulices was an employee of Dover. Plaintiff must allege facts which address the
factors set forth in Vernon.
However, as to causes of action for which
Dover would be held liable under a theory of respondeat superior or ratification
for Ulice’s conduct, Dover need not be Plaintiff’s employer. In this regard, the
allegation that Dover had the right to control Ulices and to ratify his conduct
suffices as to liability against Dover.
As such, the
demurrer is SUSTAINED with leave to amend as to the first cause of action for sexual
harassment, second cause of action for gender discrimination, third cause of action
for retaliation under FEHA, fourth cause of action for failure to prevent under
FEHA, eighth cause of action for violation of Labor Code, § 1102.5, ninth cause
of action for wrongful termination in violation of public policy. As to these causes
of action, Plaintiff must factually allege an employment relationship between Dover
and Plaintiff.
However, the
demurrer is OVERRULED as to the fifth cause of action for violation of Civil Code,
§ 51.7, sixth cause of action for violation of Civil Code, § 51.9, seventh cause
of action for violation of Civil Code, § 52.1, tenth cause of action for assault
and battery, eleventh cause of action for intentional infliction of emotional distress,
and the twelfth cause of action for negligent hiring, training and supervision/negligent
infliction of emotional distress. As to these causes of action, there need not have
been an employment relationship between Dover and Plaintiff, only an employment
relationship between Dover and Ulices for purposes of vicarious or direct liability
against Dover.
Plaintiff is
given 30 days’ leave to amend where indicated.