Judge Christopher K. Lui, Case Number: 24STCV10283, Date: 2024-08-28 Tentative Ruling

Plaintiff alleges that he was terminated from a seven-day job as a Stage Technician based on his age.

Defendant TheatreDreams LA/Chi, L.P and Defendant Chris Latsch separately demur to the First Amended Complaint.

Defendant TheatreDreams LA/Chi, L.P.’s demurrer to the First Amended Complaint is OVERRULED as to the first cause of action and SUSTAINED without leave to amend as to the second and third causes of action.

Defendant is ordered to answer the remaining allegations of the 1AC within 10 days.

Defendant Chris Latsch’s demurrer to the First Amended Complaint is SUSTAINED without leave to amend as to the first through fifth causes of action.

Defendant Theatredreams LA/CHI L.P.’s Demurrer To First Amended Complaint

The Declaration of Stephanie B. Kantor reflects that Defendant’s counsel satisfied the meet and confer requirement set forth in Civ. Proc. Code, § 430.41.

Defendant Theatredreams LA.CHI L.P. demurs to the First Amended Complaint as follows:

1. First Cause of Action (Employment Discrimination – Disparate Treatment (Age)(Labor Code, § 98.6)..

Defendant argues that Labor Code, § 98.6 does not support claims related to age discrimination, but rather filing a complaint with the Labor Commissioner and claims under the Labor Code. Yet, the 1AC does not allege any facts showing this type of violation.

(a) A person shall not discharge an employee or in any manner discriminate, retaliate, or take any adverse action against any employee or applicant for employment because the employee or applicant engaged in any conduct delineated in this chapter, including the conduct described in subdivision (k) of Section 96[1], and Chapter 5 (commencing with Section 1101[2]) of Part 3 of Division 2, or because the employee or applicant for employment has filed a bona fide complaint or claim or instituted or caused to be instituted any proceeding under or relating to their rights that are under the jurisdiction of the Labor Commissioner, made a written or oral complaint that they are owed unpaid wages, or because the employee has initiated any action or notice pursuant to Section 2699[3], or has testified or is about to testify in a proceeding pursuant to that section, or because of the exercise by the employee or applicant for employment on behalf of themselves or others of any rights afforded them.

However, the first cause of action is based on FEHA—Gov. Code, § 12940(a), not Labor Code, § 98.6. As such, this ground for demurrer is inapposite.

Defendant argues that it is uncertain whether this is intended to be a cause of action for discrimination or retaliation. Defendant also argues that Plaintiff relies upon both Labor Code, § 232.5 and Labor Code, §1102, which renders the cause of action uncertain and unintelligible. Defendant argues that this hinders its ability to obtain summary adjudication. Finally, Defendant argues that there are insufficient facts pled as to a violation of either statute.

Defendant’s arguments about uncertainty, and combining two causes of action are not persuasive. The cause of action is easily construed as asserting two causes of action, Defendant is required to defeat both theories. Also, on summary adjudication, separate theories asserted in a single cause of action may be adjudicated. (Lilienthal & Fowler v. Superior Court (1993) 12 Cal.App.4th 1848, 1852-55.)

Where a plaintiff combines two claims in a single theory, a court may summarily adjudicate those separate theories. (Lilienthal & Fowler v. Superior Court (1993) 12 Cal.App.4th 1848, 1852-55.) However, because defendant did not present separate issues as to failure to prevent harassment and failure to prevent discrimination, the Court does not split this issue into two. “[W]e hold that under subdivision (f) of section 437c, a party may present a motion for summary adjudication challenging a separate and [*1855] distinct wrongful act even though combined with other wrongful acts alleged in the same cause of action.”(Id. [bold emphasis added])

(a) Require, as a condition of employment, that an employee refrain from disclosing information about the employer’s working conditions.

(b) Require an employee to sign a waiver or other document that purports to deny the employee the right to disclose information about the employer’s working conditions.

(c) Discharge, formally discipline, or otherwise discriminate against an employee who discloses information about the employer’s working conditions.

(d) This section is not intended to permit an employee to disclose proprietary information, trade secret information, or information that is otherwise subject to a legal privilege without the consent of his or her employer.

(a) An employer, or any person acting on behalf of the employer, shall not make, adopt, or enforce any rule, regulation, or policy preventing an employee from disclosing information to a government or law enforcement agency, to a person with authority over the employee, or to another employee who has authority to investigate, discover, or correct the violation or noncompliance, or from providing information to, or testifying before, any public body conducting an investigation, hearing, or inquiry, if the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation, regardless of whether disclosing the information is part of the employee’s job duties.

(b) An employer, or any person acting on behalf of the employer, shall not retaliate against an employee for disclosing information, or because the employer believes that the employee disclosed or may disclose information, to a government or law enforcement agency, to a person with authority over the employee or another employee who has the authority to investigate, discover, or correct the violation or noncompliance, or for providing information to, or testifying before, any public body conducting an investigation, hearing, or inquiry, if the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation, regardless of whether disclosing the information is part of the employee’s job duties.

and discrimination for Plaintiff's insistence on being treated equally and fairly. Each time he had been discriminated against by being terminated while co-employees with less experience and years of service were retained, Plaintiff ¿led complaints with various governmental labor protection agencies such as the EEOC, DFEH, NLRB,

What happened since 2008 is irrelevant to this lawsuit. Plaintiff also alleges that he was taken by surprise by the termination and thus, implicitly admits, that the did not make any complaints which could form the basis for a retaliation lawsuit as to the 7-day job for which he was hired, as pled in ¶¶ 5 – 6 of the 1AC.

The demurrer to the second cause of action is SUSTAINED without leave to amend, unless Plaintiff can demonstrate a reasonable possibility of successful amendment.

Defendant argues that Plaintiff has not pled facts which constitute a violation of the Bane Act. Defendant also argue that Plaintiff fails to plead why Theatredreams should be held liable for the conduct of Defendant Latsch.

(a) This section shall be known, and may be cited, as the Tom Bane Civil Rights Act.

(b) If a person or persons, whether or not acting under color of law, interferes by threat, intimidation, or coercion, or attempts to interfere by threat, intimidation, or coercion, with the exercise or enjoyment by any individual or individuals of rights secured by the Constitution or laws of the United States, or of the rights secured by the Constitution or laws of this state, the Attorney General, or any district attorney or city attorney may bring a civil action for injunctive and other appropriate equitable relief in the name of the people of the State of California, in order to protect the peaceable exercise or enjoyment of the right or rights secured. An action brought by the Attorney General, any district attorney, or any city attorney may also seek a civil penalty of twenty-five thousand dollars ($25,000). If this civil penalty is requested, it shall be assessed individually against each person who is determined to have violated this section and the penalty shall be awarded to each individual whose rights under this section are determined to have been violated.

Under the respondeat superior doctrine, an employer is liable for the torts of its employees committed within the scope of the employment. (Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 296 [48 Cal. Rptr. 2d 510, 907 P.2d 358] (Lisa M.).) An employee's willful, malicious and even criminal torts may fall within the scope of his or her employment, even though the employer did not authorize the employee to commit crimes or intentional torts. (Id. at pp. 296–297.) Although the question of whether a tort was committed within the scope of employment is ordinarily one of fact, it becomes one of law where the undisputed facts would not support an inference that the employee was acting within the scope of employment. (John R. v. Oakland Unified School Dist. (1989) 48 Cal.3d 438, 447 [256 Cal. Rptr. 766, 769 P.2d 948].) The burden is on the plaintiff to prove that the employee's tortious conduct was committed within the scope of employment. (Mary M., supra, 54 Cal.3d at p. 209.)

Despite the broad range of acts that may give rise to the imposition of vicarious liability, before such liability will be imposed on the employer there must be a connection between the employee's intentional tort and the employee's work. The tort in this case is not simply the improper use of information obtained from the County's computer system, but the use of that information by Vital for illegal personal purposes. The law is clear that an employer is not strictly liable for all actions of its employees during working hours. (Farmers Ins. Group v. County of Santa Clara (1995) 11 Cal.4th 992, 1004 [47 Cal. Rptr. 2d 478, 906 P.2d 440] (Farmers).) Rather, there must be a causal nexus between the tort and the employee's work, i.e., the tort (sending the letters) must be engendered by or arise from the work. (Lisa M., supra, 12 Cal.4th at pp. 297–298.) “That the employment brought tortfeasor and victim together in time and place is not enough.” (Id. at p. 298.) “ ‘[B]ut for’ ” causation is insufficient. (Ibid.)

For a causal nexus to exist “the incident leading to injury must be an ‘outgrowth’ of the employment [citation]; the risk of tortious injury must be [*102] ‘ “inherent in the working environment” ’ [citation] or ‘ “typical of or broadly incidental to the enterprise [the employer] has undertaken” [citation].’ ” (Lisa M., supra, 12 Cal.4th at p. 298.) In other words, the risk of the tort must be a generally foreseeable consequence of the enterprise. (Id. at p. 300.) If the employee acts out of personal malice unconnected with the employment, the employee is not acting within the scope of employment. (Farmers, supra, 11 Cal.4th at p. 1005.) The mere fact that an employee has an opportunity to abuse facilities or authority necessary to the performance of that employee's duties does not render the employer vicariously liable. (Id. at p. 1006.) A tort will not be considered engendered by the employment unless its motivating emotions were fairly attributable to work-related events or conditions. (Lisa M., supra, at p. 301.) An employee who abuses job-created authority over others for purely personal reasons is not acting within the scope of employment. (Farmers, supra, at p. 1013.)

Here, the physical conduct alleged against Latsch against Plaintiff is inherent in the working environment, i.e., a supervisor’s interaction with the employee in firing the employee. As such, there are sufficient facts pled to impose respondeat superior liability against Defendant TheatreDreams.

Here, Plaintiff does not allege that he was attempting to exercise of enjoy a constitutional or legal right with which Latsch interference by threat, intimidation or coercion. Rather, Plaintiff admits he was just standing there and Latsch fired him—albeit in a confrontational way. (1AC, ¶¶ 27, 28.) Plaintiff does not cite any case law whereby merely standing and existing constitutes an exercise of enjoy a constitutional or legal right for purposes of the Bane Act.

The demurrer to the third cause of action is SUSTAINED without leave to amend, unless Plaintiff can demonstrate a reasonable possibility of successful amendment.

The Declaration of Stephanie B. Kantor reflects that Defendant’s counsel satisfied the meet and confer requirement set forth in Civ. Proc. Code, § 430.41.

1. First Cause of Action (Employment Discrimination – Disparate Treatment (Age)(Labor Code, § 98.6)..

Defendant argues that an individual Defendant cannot be liable for discrimination under FEHA.

Supervisors can be held individually liable for harassment under the FEHA, but not for discrimination and retaliation. (Haligowski v. Superior Court (2011) 200 Cal.App.4th 983, 990-93.) Defendant Latsch is alleged to be an employee of TheatreDreams. (1AC, ¶ 3.) To the extent he was Plaintiff’s supervisor, Latsch cannot be held individually liable for discrimination under FEHA.

This cause of action fails for the reasons discussed above re: TheatreDreams’ demurrer. For those reasons, the demurrer to the second cause of action is SUSTAINED without leave to amend, unless Plaintiff can demonstrate a reasonable possibility of successful amendment.

This cause of action fails for the reasons discussed above re: TheatreDreams’ demurrer. For those reasons, the demurrer to the third cause of action is SUSTAINED without leave to amend, unless Plaintiff can demonstrate a reasonable possibility of successful amendment.

Defendant argues that these causes of action are preempted by workers compensation exclusivity.

“Labor Code section 3600, subdivision (a), provides that, subject to certain particular exceptions and conditions, workers' compensation liability, ‘in lieu of any other liability whatsoever’ will exist ‘against an employer for any injury sustained by his or her employees arising out of and in the course of the employment.’ ” (Fermino v. Fedco, Inc. (1994) 7 Cal.4th 701, 708 [30 Cal. Rptr. 2d 18, 872 P.2d 559], fn. omitted.)

“As a general rule, an employee who sustains an industrial injury ‘arising out of and in the course of the employment’ is limited to recovery under the workers' compensation system. [Citations.] We have observed that this rule of exclusivity is based on the ‘ “presumed ‘compensation bargain,’ pursuant to which the employer assumes liability for industrial personal injury or death without regard to fault in exchange for limitations on the amount of that liability. The employee is afforded relatively swift and certain payment of benefits to cure or relieve the effects of industrial injury without having to prove fault but, in exchange, gives up the wider range of damages potentially available in tort.” ’ [Citation.] [¶] To prevent employees from circumventing the exclusivity rule by bringing lawsuits for work-related injuries against coemployees, who in turn would seek indemnity from their employers, the Legislature in 1959 provided immunity to coemployees. [Citation.] … For conduct committed within the scope of employment, employees, like their employers, should not be held subject to suit. [Citations.] [¶] There are, however, statutory exceptions to coemployee immunity. As relevant here, a civil suit is permissible when an employee proximately causes another employee's injury or death by a ‘willful and unprovoked physical act of aggression’ [citation] … . [Citation.] If an employee brings a lawsuit against a coemployee based on either of these exceptions, the employer is not ‘held liable, directly or indirectly, for damages awarded against, or for a liability incurred by the other employee … .’ ” (Torres v. Parkhouse Tire Service, Inc. (2001) 26 Cal.4th 995, 1001–1002 [111 Cal. Rptr. 2d 564, 30 P.3d 57], fn. omitted (Torres).) The term “aggression” suggests intentional harmful conduct. (Id. at p. 1005.) “[A]s a general rule … a ‘willful and unprovoked physical act of aggression’ includes an intent to injure requirement.” (Id. at p. 1006.)

In Torres, supra, 26 Cal.4th at p. 1008, the California Supreme Court ruled: “To be within the scope of employment, the incident giving rise to the injury must be an outgrowth of the employment, the risk of injury must be inherent in the workplace, or typical of or broadly incidental to the employer's enterprise.” (Ibid.) It used as an example an earlier case that found “throwing [a] hammer at [a] person was within [the] scope of employment.” (Ibid.) Here, the wheelbarrow incident took place at the worksite, during the scope of McMinn's employment, and arose from a workplace dispute over use of the wheelbarrow. The circumstances surrounding the wheelbarrow incident, and the injury Jones claims to have suffered, do not remotely approach the gravity of the hammer throwing example in Torres. “Flare-ups, frustrations, and disagreements among employees are commonplace in the workplace and may lead to ‘physical act[s] of aggression.’ [Citations.] ‘ “In bringing [people] together, work brings [personal] qualities together, causes frictions between them, creates occasions for lapses into carelessness, and for fun-making and emotional flareup. … These expressions of human nature are incidents inseparable from working together. They involve risks of injury and these risks are inherent in the working environment.” ’ ” (Id. at p. 1009.) Accordingly, as a matter of law, the workers' compensation exclusivity rule applies to Jones's assault and battery cause of action.

(Jones v. Department of Corrections & Rehabilitation (2007) 152 Cal.App.4th 1367, 1383-1384 [bold emphasis added].)

Here, the 1AC alleges that Defendant Latsch’s alleged assault and battery occurred under circumstances that come squarely within the risk inherent in the workplace. That is, a confrontational firing of an employee, as pled in ¶¶ 27 – 28, as follows:

27. On March 30, 2023, (“Palefest" production) at approximately 4:40 pm., Plaintiff was approached by defendant LATSCl-l, while Plaintiff was talking with a co-worker about the next work project that was coming up, LATSCH approached Plaintiff and spoke ¿rst to the co-worker telling her to “go to coffee,” then LATSCH immediately approached Plaintiff and pointed and thrust his ¿nger to within an inch of Plaintiff’s

chest and said, “You’re done, go home". As he was approaching me with his ¿nger outstretched, l was in fear of an immediate, harmful and unconsented touching. After he told Plaintiff “You’re done, go home” he then went to his on-stage of¿ce to tell the rest of the crew to go to coffee. At that point, I was embarrassed and shocked. I believed his comment pertained to that work day and that I was being excused from

28. Not knowing what time, I was due to report for the following day, I then walked to the open door of LATSCH’s stage of¿ce, and asked LATSCH what time I was to report for work the following morning. He immediately began to shout at me, walking in my direction in a menacing manner putting me, again, in fear for my physical safety. He stopped right in front of my face invading my personal space, literally nose to nose and told me, “You can start your [complaint form] paperwork!!” As he yelled this at me, his spittle hit my face causing a harmful and/or offensive

touching. He then intentionally bumped against my shoulder shoving me out of his way as he exited his of¿ce, another harmful and offensive touching. As he exited, I noted most of the crew staring at me in disbelief. I then left to gather my tools in order to leave. Most of the crew who witnessed the incident were requested to work by LATSCH but because of their lack of seniority and experience, they would not have been able to work this project without the speci¿c request of LATSCH, and because of

LATSCH’s known retaliatory and disparate treatment of persons he didn't like or who stood up to his violent, discriminatory and disparate treatment, they were routinely ¿red and unable to return to work on the same project.

This allege conduct is garden variety assault and battery by a supervisor that comes within the workers’ compensation exclusivity rule.

A parallel exclusive remedy provision is section 3601, subdivision (a), which “prohibits actions against coemployees for injuries they cause when acting within the scope of their employment.” (Hendy v. Losse (1991) 54 Cal.3d 723, 730 [1 Cal. Rptr. 2d 543, 819 P.2d 1].) “To prevent employees from circumventing the exclusivity rule by bringing lawsuits for work-related injuries against coemployees, who in turn would seek indemnity from their employers, the Legislature … provided immunity to coemployees [acting within the scope of their employment.] (§ 3601, subd. (a) … . ) In other words, the purpose of the exclusivity rule would be defeated if employees could bring actions against fellow employees acting in the scope of employment such that the fellow employees' negligence could be imputed to their [*1021] employers. [Citation.] Therefore, workers' compensation was also made the exclusive remedy against fellow employees acting within the scope of employment.” (Torres v. Parkhouse Tire Service, Inc. (2001) 26 Cal.4th 995, 1002 [111 Cal. Rptr. 2d 564, 30 P.3d 57] (Torres).) In short, “[f]or conduct committed within the scope of employment, employees, like their employers, should not be held subject to suit.” (Ibid.)

(Vann v. City and County of San Francisco (2023) 97 Cal.App.5th 1013, 1020-21.)

(a) Where the conditions of compensation set forth in Section 3600 concur, the right to recover such compensation, pursuant to the provisions of this division is, except as specifically provided in this section, the exclusive remedy for injury or death of an employee against any other employee of the employer acting within the scope of his or her employment, except that an employee, or his or her dependents in the event of his or her death, shall, in addition to the right to compensation against the employer, have a right to bring an action at law for damages against the other employee, as if this division did not apply, in either of the following cases:

(1) When the injury or death is proximately caused by the willful and unprovoked physical act of aggression of the other employee.

(2) When the injury or death is proximately caused by the intoxication of the other employee.

(b) In no event, either by legal action or by agreement whether entered into by the other employee or on his or her behalf, shall the employer be held liable, directly or indirectly, for damages awarded against, or for a liability incurred by the other employee under paragraph (1) or (2) of subdivision (a).

(c) No employee shall be held liable, directly or indirectly, to his or her employer, for injury or death of a coemployee except where the injured

“We conclude, as a general rule, that a "willful and unprovoked physical act of aggression" includes an intent to injure requirement. (§ 3601, subd. (a)(1).)” (Torres v. Parkhouse Tire Service, Inc. (2001) 26 Cal.4th 995, 1006.)

Here, Plaintiff does not allege facts which would give rise to a reasonable inference that Defendant Latsch intended to injure Plaintiff by pointing his finger at his chest, getting in his face, and bumping Plaintiff’s should as he passed him. (1AC, ¶¶ 27, 28.) Nor does Plaintiff allege that this caused him injury. As such, these causes of action are barred by the workers’ compensation exclusivity rule.

The demurrer to the fourth and fifth causes of action is SUSTAINED without leave to amend.

[1]

(k) Claims for loss of wages as the result of demotion, suspension, or discharge from employment for lawful conduct occurring during nonworking hours away from the employer’s premises.

(Lab. Code § 96(k).)

[2] Political affiliations.

[3] PAGA.