Judge: Donald F. Gaffney, Case: Gann v. Leiba, Date: 2022-11-23 Tentative Ruling

TENTATIVE RULING:

Motion for Summary Adjudication

Defendant Ned Leiba moves for summary adjudication of the following issues: (1) Plaintiff Gregg Gann’s third cause of action for Intentional Infliction of Emotional Distress fails for lack of any extreme/outrageous conduct and/or Gann did not sustain actual emotional distress; (2) Gann’s fourth cause of action for Negligent Infliction of Emotional Distress fails because Leiba does not owe a duty to Gann and/or Gann did not sustain actual emotional distress; (3) Gann’s seventh cause of action for Unlawful Discrimination/Harassment based on Disability per Government Code §12940 fails because Leiba is not Gann’s employer and/or Gann did not sustain any adverse employment action; and (4) Gann’s eighth cause of action for Unlawful Discrimination/Harassment based on Age per Government Code § 12940 fails because Leiba is not Gann’s employer and/or Gann did not sustain any adverse employment action.

A defendant moving for summary adjudication bears the initial burden to show the plaintiff’s action has no merit. It may do this by demonstrating the action has no merit, that plaintiff cannot prove an element of his or her claim, or that it has a complete defense entitling it to judgment as a matter of law. (Code Civ. Proc., § 437c(p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-851.) If a plaintiff has pleaded several theories, the defendant has the burden of demonstrating there are no material facts requiring trial on any of them. (Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 889.) 

If a defendant fails to meet this initial burden, the plaintiff need not oppose the motion and the motion must be denied. (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 840.) If the defendant meets this initial burden, however, the burden shifts to the plaintiff to establish, by means of competent and admissible evidence, that a triable issue of material fact still remains. (Code Civ. Proc., § 437c (p)(2); Binder, 75 Cal.App.4th at 850–851.)

The moving party’s papers are to be strictly construed, while the opposing party’s papers are to be liberally construed. (Committee to Save Beverly Highland Homes Ass’n v. Beverly Highland (2001) 92 Cal.App.4th 1247, 1260.)  

A court may not make credibility determinations or weigh the evidence on a motion for summary judgment or adjudication, and all evidentiary conflicts are to be resolved against the moving party. (McCabe v. American Honda Motor Corp. (2002) 100 Cal.App.4th 1111, 1119.)

Issue 1

The Second Amended Complaint (“SAC”) alleges Leiba personally attacked Gann and made derogatory references to Gann, including “blurt[ing] out in a board meeting, ‘why don’t you just retire?’ ” (SAC ¶¶ 14, 16.) The SAC also alleges Leiba left rude, attacking voicemails for Westview Services, Inc. (“Westview”) Board members and contacted a number of current and past employees, making derogatory and untrue statements about Gann in his professional role to members of the community blaming Gann personally for Westview’s funding challenges caused by the Legislature’s inadequate funding. (SAC ¶ 18.) The SAC alleges Leiba reconvened an adjourned Board meeting and, with a Board Director, and voted to enlarge the Board by adding five additional Directors. (SAC ¶ 21.) Leiba allegedly shared Board confidences, including private and personnel and health information of Gann, with Defendant Vines and the public at large. (Id.) Defendants sent a resolution signed by Leiba purporting to terminate Gann’s employment agreement. (SAC ¶ 23.) The SAC claims that the “on-going personal attacks and hostile environment Defendants created caused Gann severe emotional distress, complicating his medical condition and causing serious new medical issues, including a cancer diagnosis resulting in major surgery in February of 2020, all seriously undermining Gann’s health and well-being along with his professional reputation.” (SAC ¶ 24.)

To state a claim for intentional infliction of emotional distress, a plaintiff must establish: (1) extreme and outrageous conduct; (2) intention to cause or reckless disregard of the probability of causing emotional distress; (3) severe emotional suffering; and (4) actual and proximate causation of the emotional distress. (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050.) Extreme and outrageous conduct is a high bar. The behavior must “ ‘go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.’ “ (Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 499, fn. 5.)

Leiba contends that Gann cannot prove the element of extreme and outrageous conduct. In support of this contention, Leiba submitted evidence that Leiba did not have the unilateral or direct authority to terminate Gann’s employment. (Leiba Separate Statement No. 7.) Leiba also provided evidence demonstrating that Leiba did not have a face-to-face conversation with Gann about Gann’s medical condition and that Gann never got into any physical altercations or shouting matches with Leiba. (Leiba Separate Statement Nos. 19-20.)

Leiba also contends that Gann did not sustain any serious emotional distress or harm. To support this claim, Leiba submitted evidence that Gann is not under the care of any healthcare professional or taking any medications for stress or anxiety. (Leiba Separate Statement No. 21.)

Leiba’s evidentiary showing points to an absence of evidence to support Plaintiffs’ claims. (Leiba Separate Statement Nos. 6, 8, 10, 11, 12, 19, 20, 21.) This is insufficient, however, to meet Leiba’s initial burden of production. Leiba must also produce evidence that Plaintiffs cannot reasonably obtain evidence to support their claims. (Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891; see also Aguilar, 25 Cal.4th at 855, fn. 23 [disapproving case law “purportedly allowing a defendant moving for summary judgment simply to ‘point[]’ out ‘an absence of evidence to support’ an element of the plaintiff's cause of action”].) Leiba has failed to establish Plaintiffs cannot reasonably obtain evidence to show extreme or outrageous conduct, or severe emotional distress. Leiba has not met his initial burden to disprove the elements of extreme and outrageous conduct and severe emotional suffering. Even if Leiba had met his initial burden of production, Gann has demonstrated triable issues of material fact. Gann produced evidence that Defendants filed accusations about Gann with the California AG (Gann Additional Facts Nos. 48 [Torrey Decl. ¶ 2, Ex. L, Depo. Ex. 21]) and evidence that Leiba contacted current and past employees of Westview, making derogatory statements about Gann in his professional role and blaming Gann for Westview’s funding challenges. (Gann Additional Facts No. 48 [Gann Decl. ¶ 20].) Gann has also produced evidence that Leiba’s actions caused Gann great anxiety that manifested in extreme distress, an inability to sleep, back and muscle pain, dizziness, loss of breath, rapid heart rate, and elevated blood pressure. (Gann Additional Facts No. 49 [Gann Decl. ¶ 21].) Gann was diagnosed with acute anxiety and prescribed medication. (Gann Additional Facts No. 49 [Gann Decl. ¶ 24].) The motion for summary adjudication is denied as to Issue 1.

Issue 2

The fourth cause of action alleges Leiba owed a duty to Gann that arose from his claimed role as member of the Board of Directors of Westview Services. (SAC ¶ 48.) The SAC further alleges Defendants made false accusations about Gann, mass mailed derogatory and false statements about Gann, and made repeated efforts to disrupt Gann’s employment. (SAC ¶ 50.)

In analyzing a negligent infliction of emotional distress claim “[t]he existence of a duty of care owed by a defendant to a plaintiff is a prerequisite,” and question of law decided by a court, “[when] establishing a claim for negligence.” (Nymark v. Heart Federal Savings. & Loan Ass’n (1991) 231 Cal.App.3d 1089, 1095.)

Every person has a duty to use ordinary care to prevent others from being injured as a result of their own conduct. (Code Civ. Proc., § 1714.) However, “social policy must at some point intervene to delimit liability” and “policy considerations may dictate that a cause of action should not be sanctioned no matter how foreseeable the risk.” (Parsons v. Crown Disposal Co. (1997) 15 Cal.4th 456, 476.) There is generally no “duty to avoid negligently causing emotional distress to another.” (Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal. 4th 965, 985.) The California Supreme Court has cautioned that “unless the defendant has assumed a duty to plaintiff in which the emotional condition of the plaintiff is an object, recovery is available only if the emotional distress arises out of the defendant’s breach of some other legal duty and the emotional distress is proximately caused by that breach of duty[,]” and that, “with rare exceptions, a breach of duty must threaten [more than] damage to property or financial interests.” (Id.)

California cases in which courts have permitted plaintiffs to proceed with emotional distress claims include: a doctor misdiagnosing a plaintiff's wife with syphilis (Molien v. Kaiser Foundation Hospitals (1980) 27 Cal. 3d 916, 930-31); a hired therapist sexually molesting a plaintiff’s sons (Marlene F. v. Affiliated Psychiatric Medical Clinic, Inc. (1989) 48 Cal.3d 583, 591); a school board failing to notify a plaintiff that her daughter was sexually molested by a fellow student (Phyllis P. v. Superior Court, (1986) 183 Cal.App.3d 1193, 1197-98); a crematorium mishandling the remains of plaintiffs’ close relative (Christensen v. Superior Court (1991) 54 Cal.3d 868, 894-896); a company’s unlawful disposal of toxic waste which caused plaintiff to develop a fear of cancer after ingesting contaminated water (Potter, 6 Cal.4th at 985); and a pet cremation company sending plaintiffs random ashes instead of the remains of their dogs (Levy v. Only Cremations for Pets, Inc. (2020, Fourth Dist. Div. 3) 57 Cal.App.5th 203, 217).

Leiba contends Gann cannot prove Leiba owed him a duty, that Leiba breached that duty, or that Gann suffered harm. Leiba argues that he does not owe a duty to Gann because the only relationship between them was that of CEO (Gann) and a Board Member (Leiba).

The Court finds that Gann has failed to submit evidence sufficient to demonstrate Leiba owes Gann a duty the likes of which the above cases indicate. It is undisputed that Leiba was a member of Westview’s Board of Directors and that Gann was employed as President and CEO of Westview. (Leiba Separate Statement Nos. 1-3, 8.) Although Gann argues that Leiba’s role as Gann’s direct supervisor created a special relationship, Gann has not provided legal authority to support this conclusory assertion. (See Hope v. California Youth Authority (2005) 134 Cal.App.4th 577, 596 [“contention is waived if not supported by legal authority”]; Martine v. Heavenly Valley Limited Partnership (2018) 27 Cal.App.5th 715, 728 [“When legal argument with citation to authority is not furnished on a particular point, [courts] may treat the point as forfeited and pass it without consideration.”].) The Court has also been unable to find any authority indicating there is a special relationship between members of a company’s board of directors and the company’s CEO or a special relationship between a supervisor and an employee, such that the supervisor owes the employee a duty in which the emotional condition of the employee is an object. The motion for summary adjudication is granted as to Issue 2.

Issues 3 and 4

The seventh cause of action for discrimination/harassment based on disability/medical condition alleges Defendants wrongfully discriminated against and harassed Gann based on Gann’s status as a person with disabilities and/or medical conditions, specifically Gann’s diabetes and cancer. (SAC ¶ 66.) Similarly, the eighth cause of action for discrimination/harassment based on age alleges

Defendants sought to terminate Gann’s employment and subjected Gann to other adverse employment action, including engaging in unlawful harassment towards Gann and creating a hostile work environment on account of his age. (SAC ¶ 80.)

Leiba contends Gann’s seventh and eighth causes of action lack merit because Westview, not Leiba, was Gann’s employer and because Gann did not experience any adverse employment action. Leiba provided evidence that Leiba was not Gann’s employer, that Gann had not missed any paychecks from Westview, that Gann was never censured, reprimanded, or demoted by Westview’s Board, that Gann had not taken any disability leave from his role at Westview since 2014, that Gann had never requested any medical accommodations from Westview, that Gann was always able to perform his job duties for Westview, that Gann did not miss work due to a medical procedure for two heart stents, that Gann had never complained to Westview’s Board that they were not accommodating Gann’s medical condition, and that Gann had never had a face-to-face conversation with Leiba regarding his medical condition. (Leiba Separate Statement Nos. 10-12, 14-19.)

Code of Civil Procedure section 437c(f)(1) provides: “A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.”

Leiba’s motion and his separate statement of undisputed facts did not address Gann’s claims for harassment based on disability/medical condition and age. Because Leiba did not direct his motion to harassment as well as discrimination, the motion does not dispose of the seventh and eighth causes of action in their entirety. The motion for summary adjudication is denied as to the seventh and eighth causes of action.

Plaintiffs to give notice.