Judge Christopher K. Lui, Case Number: 24STCV15771, Date: 2024-10-15 Tentative Ruling

Judge: Christopher K. Lui, Case: 24STCV15771, Date: 2024-10-15 Tentative Ruling

Case Number: 24STCV15771 Hearing Date: October 15, 2024 Dept: 76

The following tentative ruling is issued pursuant to Rule of Court 3.1308 at 2:25 p.m. on October 14, 2024..

Notice of intent to appear is REQUIRED pursuant to California Rule of Court 3.1308(a)(1). The Court does not desire oral argument on the motion addressed herein.

As required by Rule 3.1308(a)(1), any party seeking oral argument must notify ALL OTHER PARTIES and the staff of Department 76 by 4:00 p.m. on October 14, 2024.

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, oral argument will not be permitted.

Defendants JLR Los Angeles, LLC and US Auto CA, LLC’s demurrer to the First Amended Complaint is SUSTAINED with leave to amend as to the first cause of action.

Plaintiff is given 30 days’ leave to amend.

ANALYSIS

Discussion

Meet and Confer

The Declaration of Fallon Martinez reflects that Defendants’ counsel satisfied the meet and confer requirement set forth in Civ. Proc. Code, § 430.41 as to the First Amended Complaint.

Discussion

Defendants JLR Los Angeles, LLC and US Auto CA, LLC demur to the First Amended Complaint.

1. First Cause of Action (Sexual Harassment/Failure To Prevent Sexual Harassment).

Defendants argue that this cause of action is not sufficiently pled to constitute severe and pervasive sexual harassment.

Plaintiff cites the recent amendment to Government Code § 12923(b) which states that even a single incident of harassing conduct is sufficient to create a triable issue.

It is an unlawful employment practice for an employer to “harass” an employee based on membership in a protected class, including “because of race.” (§ 12940, subd. (j)(1).) “Harassment of an employee … by an employee, other than an agent or supervisor, shall be unlawful if the entity, or [*627] its agents or supervisors, knows or should have known of this conduct and fails to take immediate and appropriate corrective action.” (Ibid.) Harassment includes “[v]erbal harassment” such as “epithets, derogatory comments or slurs on a basis enumerated in the Act” (Cal. Code Regs., tit. 2, § 11019, subd. (b)(2)(A)); it also includes “[p]hysical” and “[v]isual forms of harassment” (id., subd. (b)(2)(B), (C)).

To prevail on a claim that a workplace is racially hostile under FEHA, an employee must show she was subjected to harassing conduct that was (1) unwelcome; (2) because of race; and (3) sufficiently severe or pervasive to alter the conditions of her employment and create an abusive work environment. (See Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 279 [42 Cal. Rptr. 3d 2, 132 P.3d 211] [setting out prima facie requirements for sexual harassment claims under FEHA]; Boyer-Liberto v. Fontainebleau Corp. (4th Cir. 2015) 786 F.3d 264, 277 (Boyer-Liberto) [setting out prima facie requirements for racial harassment claims under Title VII].) In addition, she must establish that the offending conduct was imputable to her employer. (Lyle, at p. 279; Boyer-Liberto, at p. 277.) The parties here do not dispute that Larkin’s conduct was unwelcome and because of race.4 We therefore turn to consider its severity and the City’s liability.

. . .

The objective severity of harassment should be judged from the perspective of a reasonable person in the plaintiff’s position. (Miller, supra, 36 Cal.4th at p. 462; Oncale v. Sundowner Offshore Services, Inc. (1998) 523 U.S. 75, 78 [140 L. Ed. 2d 201, 118 S. Ct. 998] (Oncale).) We acknowledge, as has the Ninth Circuit before us, that “[r]acially motivated comments or actions may appear innocent or only mildly offensive to one who is not a member of the targeted group,” but “intolerably abusive or threatening when understood from the perspective of a plaintiff who is a member of the targeted group.” (McGinest v. GTE Service Corp. (9th Cir. 2004) 360 F.3d 1103, 1116 (McGinest).) We must therefore consider allegations of a racially hostile workplace “from the perspective of a reasonable person belonging to the racial or ethnic group of the plaintiff.” (Id. at p. 1115; accord, Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 264 [100 Cal. Rptr. 3d 296] (Nazir).) This allows us to “recognize forms of discrimination that are real and hurtful, and yet may be overlooked if considered solely from the perspective of an adjudicator belonging to a different group than the plaintiff.” (McGinest, at p. 1116.)

(Bailey v. San Francisco Dist. Attorney’s Office (2024) 16 Cal. 5th 611, 626-27, 629 [bold emphasis added].)

Here, the 1AC alleges as follows:

10. In February of 2024, Sales Representative Renata Grinshpun made sexually explicit comments and advances towards Plaintiff, and sexually harassed him in a manner that was severe and/or pervasive, satisfying the elements of Cal. Gov. Code § 12923.

11. On February 12, 2024, after Plaintiff authorized a paint correction for Grinshpun’s customer, she called Plaintiff and screamed at him aggressively. Plaintiff is informed and believes that Grinshpun’s behavior was substantially motivated by the fact that Plaintiff rejected her sexual advances, compounding the hostile work environment. Plaintiff immediately reported his concerns to Brown and documented them in an email, including Grinchpun’s sexual harassment.

. . .

17. Plaintiff was subjected to harassing conduct by his co-worker, and this harassment was sexual in nature and predicated upon his sex.

(1AC, ¶¶ 10, 11, 17.)

Here, Plaintiff must allege exactly what Grinshpun said to Plaintiff, such that it can be said that, as an objective matter, what a female subordinate (Grinshpun) said to a male superior (Plaintiff) could be considered sexually harassing by a reasonable person in Plaintiff’s position. There is no justification for vagueness in relating the comments or conduct. “Although a court must on demurrer accept as true properly pleaded facts, a demurrer does not admit contentions or conclusions of law or fact.” (Freeman v. San Diego Assn. of Realtors (1999) 77 Cal.App.4th 171, 185.)

As such, the claim for sexual harassment is not sufficiently pled.

Nor is the claim for failure to prevent sexual harassment sufficiently pled. A failure to prevent claim under FEHA requires that the actual discrimination, harassment or retaliation have actually occurred. (See Carter v. California Dept. of Veterans Affairs (2006) 38 Cal.4th 914, 925, fn. 4; Kelley v. The Conco Companies (2011) 196 Cal.App.4th 191, 208, superseded by statute on other grounds as stated in Taylor v. Nabors Drilling USA, LP (2014) 222 Cal.App.4^th 1228, 1239; Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1021; Thompson v. City of Monrovia (2010) 186 Cal.App.4th 860, 880,)

The demurrer to the first cause of action is SUSTAINED with leave to amend.

Plaintiff is given 30 days’ leave to amend.