Judge Gail Killefer, Case 20STCV14934 2022-08-15 Tentative Ruling

CASE NAME: Edwin Castro v. Motion Picture Industry Pension and Health Plans, et al.

MOTION: Defendant’s Motion for Summary Judgment, or, in the alternative, Summary Adjudication

This action arises out of Plaintiff Edwin Castro’s employment with Defendant Motion Picture Industry Pension and Health Plans (“MPI”). Plaintiff alleges he was sexually harassed by Defendant Amy Malachowski (“Malachowski”) while both were employed by MPI. According to the Complaint, Plaintiff began his employment with MPI in a data entry position in 1998 and was promoted several times, with the most recent promotion in April 2017 to Subject Matter Expert. Malachowski was hired as an assistant manager in 2017 and became Plaintiff’s direct supervisor. Plaintiff allegedly confided in his coworker who then made a formal sexual harassment complaint on his behalf and, as a result, Malachowski was fired. Plaintiff was also issued a write-up and a demotion. Plaintiff was eventually terminated on October 9, 2019, following several write-ups and alleged additional harassment from his supervisor.

Plaintiff’s Complaint alleges eight causes of action: (1) sexual harassment in violation of Fair Housing and Employment Act (“FEHA”), (2) quid pro quo sexual harassment, (3) discrimination on the basis of sex/gender in violation of the FEHA, (4) retaliation in violation of the FEHA, (5) failure to investigate and prevent discrimination, harassment and retaliation from occurring in violation of the FEHA against MPI, (6) wrongful termination in violation of public policy against MPI, (7) intentional infliction of emotional distress, and (8) negligent infliction of emotional distress.

On June 27, 2022, the court granted summary adjudication in favor of MPI as to the first, second, seventh, and eighth causes of action, as well as to the prayer for punitive damages. (“June 27 Order”). These four causes of action – 1, 2, 7, and 8 – are also asserted against Malachowski.

Malachowski now moves for summary judgment, or, in the alternative, summary adjudication as follows:

1. Judgment should be granted in favor of Malachowski as to all of Plaintiff’s Causes of Action because Plaintiff cannot prevail on any of his causes of action.

2. Alternatively, judgment should be granted in favor of Malachowski as to Plaintiff’s First Cause of Action because any actions or conduct that could give rise to such claim are time barred by the applicable statute of limitations.

3. Alternatively, judgment should be granted in favor of Malachowski as to Plaintiff’s First Cause of Action because the undisputed material facts show Plaintiff’s claim to lack merit.

4. Judgment should be granted in favor of Malachowski as to Plaintiff’s Second Cause of Action because Plaintiff’s claims are similarly time barred under the applicable statute of limitations.

5. Alternatively, judgment should be granted in favor of Malachowski as to Plaintiff’s Second Cause of Action because Plaintiff’s claims similarly lack merit.

6. Judgment should be granted in favor of Malachowski as to Plaintiff’s Seventh Cause of Action because it is time barred.

7. Alternatively, judgment should be granted in favor of Malachowski as to Plaintiff’s Seventh Cause of Action because it similarly lacks merit.

8. Alternatively, judgment should be granted in favor of Malachowski as to Plaintiff’s Seventh Cause of Action because Plaintiff’s claims are barred by the Workers’ Compensation exclusivity provision.

9. Judgment should be granted in favor of Malachowski as to Plaintiff’s Eighth Cause of Action because it is similarly barred by the Workers’ Compensation exclusivity provision.

10. Alternatively, judgment should be granted in favor of Malachowski as to Plaintiff’s Eighth Cause of Action because it is time barred.

11. Alternatively, judgment should be granted in favor of Malachowski as to Plaintiff’s Eighth Cause of Action because it similarly lacks merit.

12. Judgment should be granted in favor of Malachowski as to Plaintiff’s prayer for punitive damages because the undisputed material facts show Plaintiff’s prayer to lack merit.

Malachowski’s notice of motion does not comply with CCP § 437c(f)(1). That section 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.” Malachowski’s noticed issues either address multiple causes of action within one issue, or one cause of action is addressed across multiple issues. Thus, the court will address the motion pertaining to each cause of action and the Complaint’s request for punitive damages.

Malachowski’s Objections to Plaintiff’s Declaration, Material Facts and Evidence

Overruled: 1, 5, 9, 30, 36, 42, 43, 62-64, 66-71, 75, 78-79, 83, 85, 87, 94-96, 98, 100

“The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties' pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) CCP § 437c(a) provides:

A party may move for summary judgment in any action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding. The motion may be made at any time after 60 days have elapsed since the general appearance in the action or proceeding of each party against whom the motion is directed or at any earlier time after the general appearance that the court, with or without notice and upon good cause shown, may direct…. The motion shall be heard no later than 30 days before the date of trial, unless the court for good cause orders otherwise. The filing of the motion shall not extend the time within which a party must otherwise file a responsive pleading.

A motion for summary judgment may be granted “if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (CCP § 437c(c).) “The motion shall be supported by affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken. The supporting papers shall include a separate statement setting forth plainly and concisely all material facts that the moving party contends are undisputed. Each of the material facts stated shall be followed by a reference to the supporting evidence. The failure to comply with this requirement of a separate statement may in the court’s discretion constitute a sufficient ground for denial of the motion.” (CCP § 437c(b)(1); see also Cal. Rules of Court, rule 3.1350(c)(2) & (d).)

In analyzing motions for summary judgment, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent's claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.” (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294 (Hinesley).) CCP § 437c(p)(2) provides:

A defendant or cross-defendant has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action. Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. The plaintiff or cross-complainant shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto.

The court must “view the evidence in the light most favorable to the opposing party and accept all inferences reasonably drawn therefrom.” (Hinesley, 135 Cal.App.4th at p. 294; Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389 [Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.”].) A motion for summary judgment must be denied where the moving party’s evidence does not prove all material facts, even in the absence of any opposition (Leyva v. Sup. Ct. (1985) 164 Cal.App.3d 462, 475) or where the opposition is weak (Salasguevara v. Wyeth Labs., Inc. (1990) 222 Cal.App.3d 379, 384, 387).

“In analyzing an employee’s claim for unlawful discrimination under the FEHA, California courts have adopted the three-stage, burden-shifting test the United States Supreme Court established in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 [Citations.]” (Swanson v. Morongo Unified School Dist. (2014) 232 Cal.App.4th 954, 964 (Swanson).) “This so-called McDonnell Douglas test reflects the principle that direct evidence of intentional discrimination is rare, and that such claims must usually be proved circumstantially. Thus, by successive steps of increasingly narrow focus, the test allows discrimination to be inferred from

facts that create a reasonable likelihood of bias and are not satisfactorily explained.” (Swanson, 232 Cal.App.4th at p. 964.)

California courts have recognized that the McDonnell Douglas test was originally developed for use at trial, not in summary judgment proceedings. (Swanson, 232 Cal.App.4th at p. 965.) “California’s summary judgment law places the initial burden on a moving party defendant to either negate an element of the plaintiff’s claim or establish a complete defense to the claim.” (Id. at pp. 965-966.) “The burdens and order of proof therefore shift under the McDonnell Douglas test when an employer defendant seeks summary judgment. [Citations.] An employer defendant may meet its initial burden on summary judgment, and require the employee plaintiff to present evidence establishing a triable issue of material fact, by presenting evidence that either negates an element of the employee's prima facie case, or establishes a legitimate nondiscriminatory reason for taking the adverse employment action against the employee.” (Id. at p. 966.) “[T]o avoid summary judgment [on the second of these two grounds], an employee claiming discrimination must offer substantial evidence that the employer's stated nondiscriminatory reason for the adverse action was untrue or pretextual, or evidence the employer acted with a discriminatory animus, or a combination of the two, such that a reasonable trier of fact could conclude the employer engaged in intentional discrimination.” (Ibid.)

A. First and Second Causes of Action: Sexual Harassment & Quid Pro Quo Sexual Harassment

To establish a prima facie case of¿harassment, an employee must show (1) he was an employee; (2)¿he was subjected to unwanted harassing conduct based on her protected status; (3) the harassing conduct was severe or pervasive; (4) a reasonable person in the employee's circumstances would have considered the work environment to be hostile or abusive; (5) he considered the work environment to be hostile or abusive; (6) that a supervisor engaged in the conduct and/or the employer knew or should have¿known of the conduct and failed to take immediate and appropriate corrective action; (7) the employee was harmed; and (8) the conduct was a substantial factor in causing the employee's harm.¿(Thompson v. City of Monrovia¿(2010) 186 Cal.App.4th 860, 876)¿Further, pursuant to Government Code section 12923, subdivision (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.” Quid pro quo harassment is not a separate cause of action, but is a “type” of harassment that requires establishing that a job benefit was conditioned on granting sexual favors. (Roby v. McKesson Corp., 47 Cal.4th 686, 706 (2009), as modified (Feb. 10, 2010); Pollock v. Tri-Modal Distribution Servs., Inc., 11 Cal.5th 918, 932 (2021).) If requests for such favors are rejected, a tangible employment action must occur. (Hughes v. Pair, 46 Cal.4th 1035, 1049 (2009).)

Government Code § 12960 requires an employee bringing a claim to first file an administrative complaint with the Department of Fair Employment and Housing (“DFEH”) within one year of the date the alleged unlawful action occurred.¿ (Gov. Code, § 12960(d).)¿¿“The timely filing of an administrative complaint is a prerequisite to the bringing of a civil action for damages under the FEHA.”¿ (Romano v. Rockwell¿(1996) 14 Cal.4th 479, 492 (Romano).)¿ Furthermore, “the FEHA provides that no complaint for any violation of its provisions may be filed with the Department ‘after¿the expiration of one year from the date upon which the alleged¿unlawful practice¿or refusal to cooperate¿occurred,’¿with an exception for delayed discovery. . . .”¿ (Ibid.,¿emphasis in original.)¿¿“Where exhaustion of an administrative remedy is mandatory prior to filing suit,¿equitable¿tolling¿is automatic.” (McDonald v. Antelope Valley Community College Dist. (2008) 45 Cal.4th 88, 101.) Pursuing an employer’s internal grievance procedures may qualify for equitable tolling when internal procedures may serve to “minimize or eliminate entirely the need for further judicial proceedings.” (Id.)

In the June 27 Order, this court granted summary adjudication as to the first and second causes of action in favor of MPI, finding:

“Viewing the facts in a light most favorable to Plaintiff, the court finds Plaintiff’s claims to be time-barred. Plaintiff does not point to any existing pattern of routinely harassing conduct which would continue the statute of limitations, fails to point out how the union grievance letter gave notice to MPI of his harassment claims such that equitable tolling would apply, and further fails to establish sufficient facts to show that he exhausted his administrative remedies within the statutory timeline to allow for these claims to now be considered. As such, Plaintiff’s claims are past the statute of limitations and summary adjudication is granted as to the first and second causes of action.

Even if Plaintiff’s claims were not time-barred, after viewing the facts in a light most favorable to Plaintiff, the court finds no triable issues of material fact exist as to Plaintiff’s harassment claims. Under the totality of the circumstances, the facts of the matter show Plaintiff and Malachowski engaged in sexual relations, both attempted to pursue one another at different times, both continued to express their desires to continue such interactions, both were disciplined following a third-party coworker’s complaints, whereafter Plaintiff apologized to Malachowski after she was let go. The court notes that the facts show a consensual relationship, and Plaintiff’s reliance on authority with little precedential value before this court in unpersuasive. Therefore, the court finds no reasonable jury would conclude Plaintiff’s experiences to amount to harassment, and grants summary adjudication as to the first and second causes of action.” (June 27 Order, 5-7.)

Here, Malachowski reiterates some of MPI’s earlier contentions and argues Plaintiff’s first and second causes of action must fail for several reasons: (1) Plaintiff’s harassment claims are time barred as they occurred more than one year before Plaintiff filed his DFEH Complaint on December 24, 2019; (2) Plaintiff’s quid pro quo harassment claim must also fail since Plaintiff has presented no evidence that he engaged in any unwanted sexual activity in order to receive a tangible employment benefit as the relations were consensual; (3) Plaintiff’s hostile work environment claim must also fail because Plaintiff cannot show that Malachowski treated him differently because of his gender, or that he was subjectively found any severe or pervasive behavior to be offensive. (Memo. Of Points and Authorities (“MPA”), 12-15.)

First, Malachowski contends that Plaintiff filed his DFEH Complaint on December 24, 2019, thus “only harassment that occurred December 24, 2018 and later is actionable.” (MPA, 12.) Malachowski further contends that “Castro admits ... any supposed harassment had ceased by September 2018” after the move to Project Genesis, and Castro “admits that the few notes he received during Genesis did not bother him, so they cannot support a claim for harassment...” (MPA, 12-13; MF 67-71, 95-96.) Malachowski asserts Castro’s attempts “to manufacture a timely claim” by pointing to “the one second of leg rubbing” is also unsuccessful in establishing a successful harassment claim since “that single act is not quid pro quo and cannot establish severe or pervasive harassment.” (MPA, 12-13.) Therefore, Malachowski contends Castro’s claims to be time-barred. Further, Malachowski also contends that the continuing violation doctrine cannot extend the statute of limitations here as “Castro has never identified any unwanted acts within the statute of limitations, much less severe or pervasive behavior that is similar to conduct alleged outside the statute of limitations... the overwhelming concentration of Castro and Malachowski’s interactions of any sort took place well outside the statute of limitations.” (MPA, 13-14.) As such, Malachowski contends the continuing violation doctrine does not preserve Castro’s claims here. (Id.)

Second, Malachowski contends that even if Plaintiff’s claims are timely, Plaintiff cannot establish a pervasive or severe totality of circumstances, and cannot establish that he subjectively found it to be offensive. (MPA, 14-15.) Specifically, Malachowski contends,

“Castro and Malachowski were engaged in an intimate and sexual relationship that Castro admits was consensual... and he admits that Malachowski’s cards, pictures, and notes did not bother him, that he thought Malachowski was ‘great’ and should not be fired, that he could not remember when he was upset in 2018, but in any case his concerns ended when he joined Genesis.” (MPA, 15.)

“[u]nder the totality of the circumstances, Castro’s late-raised supposed concern for Malachowski sitting at his desk, her one time masturbation, her singing at a Christmas party, and her one time touching his leg do not establish severe or pervasive unwanted harassment when viewed in light of Castro’s own participation in the same types of acts, such as by sending Malachowski pictures from the masturbation video first to encourage and, later, to torment her, praising her for sending naked photos, suggesting they have a threesome, telling her about anal sex, and, to top it all off, attempting to engage in sexual activity in the office well after she had broken it off.” (Id.; citing Mokler v. Cty. of Orange, (2007) 157 Cal. App. 4th 121, 141-142; also Lyle v. Warner Bros. Telev. Prods., 38

In opposition, Plaintiff again first argues that his harassment claims are timely as Plaintiff’s claims were equitably tolled after “Plaintiff filed a grievance on November 15, 2019, when the union sent a letter disputing Plaintiff’s termination and identifying Malachowski’s conduct and MPI’s failure to investigate Plaintiff’s complaints about Alba as contributing factors.” (Opposition, 9-10.) As such, Plaintiff again contends “Defendant had ample opportunity to remedy the matter. Furthermore, Plaintiff exercised reasonable conduct and good faith by informing his union of the harassment though it did not complete its investigation and inform Plaintiff of the outcome.” (Id.) In the alternative, Plaintiff again argues the continuing violation doctrine applies in extending the statutory period here as Malachowski’s “harassment continued within the statutory period. Specifically, Malachowski continued to sexually harass him as late as January 2019.” (Id.) While Plaintiff again makes these conclusory claims, Plaintiff’s opposition papers yet again provide scant evidence to support such claims.

Plaintiff then argues that, if timely, Plaintiff can establish a hostile work environment and his harassment claims. (Opposition, 10-12.) Plaintiff again argues that he was subjected to a hostile work environment because he is a man, and describes sexual encounters between Malachowski and Plaintiff as severe and pervasive. (Id.) Plaintiff again argues that “a reasonable jury in Plaintiff’s circumstances would have considered the work environment to be hostile, intimidating, offensive, oppressive, or abusive.” (Opp., 12.) Further, Plaintiff again argues he has “alleged that he did not welcome” Malachowski’s advances, and acquiesced out of fear that Malachowski “would give him a negative performance review or terminate his employment.” (Id.) Lastly, Plaintiff also argues that Malachowski was Plaintiff’s supervisor as Malachowski “had authority to distribute work, issue discipline, and conduct performance evaluations.” (Id.) Plaintiff provides no supporting authority for this definition.

In reply, Malachowski first argues that Plaintiff’s claims are time-barred as the facts show no purported harassing conduct occurred after December 24, 2018. (Reply, 4-5.) Second, Malachowski argues Castro’s Complaint “does not allege tolling applies or even mention the union grievance, so his attempt to raise equitable tolling now is ineffective.” (Id.; citing Tsemetzin v. Coast Federal Savings & Loan Assn., 57 Cal.App.4th 1334, 1342 (1997) [party moving for summary judgment “need address only those theories actually pled, and an opposition which raises new issues is no substitute for an amended pleading.”].) Third, Malachowski argues equitable tolling does not apply here as Plaintiff did not provide notice of his harassment claim as his union grievance was notice of challenging his termination as a breach of the union agreement. (Reply, 5-6.) Malachowski also relies on Wassmann v. S. Orange Cnty. Cmty. Coll. Dist., 24 Cal. App. 5th 825, 851 (2018) for its contention that an administrative proceeding challenging Plaintiff’s termination alone does not toll the statute of limitations on FEHA claims. (Id.)

This court agrees. The union filed a grievance over a breach of the collective bargaining agreement for “the termination of Ed Castro’s employment,” and accordingly, “the claim by the union for breach did not put MPI on notice of Castro’s intent to sue for anything, let alone harassment.” (Id.) Malachowski further contends the union grievance was directed to MPI and as such, “she was not even arguably put on notice of anything at all.” (Reply, 6.) Malachowski here also asserts Castro did not act in good faith as he made no effort to notify Malachowski of an intent to sue, destroyed evidence, and admitted to delaying his reporting of Malachowski. (Reply, 7.)

Malachowski also argues that the continuing violation doctrine also does not apply since Plaintiff “identifies no evidence of a regular pattern harassment within the statute of limitations” and does not point to “reasonably frequent” conduct which would justify extending the statute of limitations. (Reply, 8-9.)

Lastly, Malachowski also argues that Plaintiff cannot establish hostile work environment harassment or quid pro quo harassment because “the employment actions he ‘suffered’ arose from another employee’s complaint, which led to Castro’s demotion for his improper behavior during the investigation and failure to follow policy, not because he somehow stopped ‘playing along.’” (Reply, 10-11.) Malachowski points out that their continued sexual relations would make it difficult for a reasonable jury to conclude that “his participation was due to a quid pro quo.” (Id.) Further, their consensual sexual relations, continued pursuit of one another, and his desire for Malachowski to not face consequences “make it impossible for any reasonable jury to conclude their relationship was anything but consensual” based on a totality of the circumstances (Id.)

As Plaintiff here has brought substantially identical arguments in opposition to the June 27 Order which the court has already addressed, and as the court has already decided as to the factual disputes underpinning the first and second causes of action, in order to maintain consistency with prior rulings, the court further grants summary adjudication as to the first and second causes of action.

B. Seventh and Eighth Causes of Action: Negligent & Intentional Infliction of Emotional Distress

The elements of a claim for intentional infliction of emotional distress (“IIED”) are: “(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress;¿and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct.”¿ (Christensen v. Superior Court¿(1991) 54 Cal.3d 868, 903¿(Christensen).)¿¿Under California law, for conduct to be “outrageous”¿it must be¿“so extreme as to exceed¿all bounds of that usually tolerated in a civilized community.” (See Ess¿v.¿Eskaton¿Props., Inc.¿(2002) 97 Cal.App.4th 120, 130.)¿¿Liability does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.¿ (Hughes v. Pair¿(2009) 46 Cal.4th 1035, 1051.)¿

California courts have repeatedly recognized that negligent infliction of emotional distress (NIED) is not an independent tort, but the tort of negligence such that the traditional elements of¿duty, breach of duty, causation¿and damages apply.¿(See, e.g.,¿Spates v.¿Dameron¿Hospital Association¿(2003) 114 Cal.App.4th 208, 213;¿Marlene F. v. Affiliated Psychiatric Medical Clinic, Inc. (1989) 48 Cal.3d 583, 588.)¿Thus, to plead¿NIED,¿negligence must be established: duty, breach of duty, causation, and damages. (Spates v.¿Dameron¿Hospital Association, supra,¿114 Cal.App.4th at p. 213.)¿“[T]here is no duty to avoid¿negligently¿causing emotional distress to another, and¿[]¿damages for emotional distress are recoverable only if the defendant has breached some other duty to the plaintiff.” (Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 984.) “[U]nless¿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.” (Id. at p. 985.) “Even then, with rare exceptions, a¿breach of the duty must threaten physical injury, not simply damage to property or financial interests.” (Ibid.)

“The workers’ compensation exclusivity rule is the rule, embodied in Labor Code §§ 3600, 3601 and 3602, that with certain exceptions, an injury sustained by an employee arising out of and in the course of his or her employment is compensable by way of a workers' compensation insurance award only, not by a tort judgment.” (Lee v. West Kern Water Dist. (2016) 5 Cal.App.5th 606, 624.) “The basis for the exclusivity rule is the ‘presumed ‘compensation bargain’’ in which the employer assumes liability for injury or death arising out of and in the course of employment without regard to fault and compensation is relatively swift, in exchange for limitations on the amount of liability. [Citation.]” (Angelotti v. The Walt Disney Co. (2011) 192 Cal.App.4th 1394, 1403.)

“As Defendant correctly argues, ‘[Plaintiff] ignores that the supposedly traumatic events like the masturbation occurred more than two years before he sued and are time barred... he argues IIED claims are not barred by Workers’ Compensation exclusivity, ignoring the Supreme Court’s contrary holding in Miklosy v. Regents of Univ. of Cal., 44 Cal.4th 876, 902 (2008), but also conceding that his NIED claim is barred... he ignores the law that Malachowski’s supposed harassing acts are clearly outside the scope of her agency and MPI cannot be liable for them... That leaves only personnel decisions, which cannot support a claim for emotional distress.’ (Reply, 5-6.)

Plaintiff does not point to any statements made, or to any specific conduct by MPI. Plaintiff further fails to point to supporting evidence or authority that the circumstances here do not warrant a barring of these claims per the exclusivity provision. Therefore, viewing the evidence submitted in the light most favorable to Plaintiff, the court finds that no triable issues of material fact exist with regard to the seventh and eighth causes of action, as these claims are both barred by the Workers Compensation exclusivity rule for arising from the workplace and are time-barred by the applicable statute of limitations. For these reasons, MPI’s motion is granted as to the seventh and eighth causes of action.” (June 27 Order, 12-13.)

Malachowski also asserts that summary adjudication is warranted for the seventh and eighth causes of action first because Castro “cannot offer evidence that Malachowski engaged in conduct that was ‘extreme and outrageous.’” (MPA, 16-17.)

Second, Malachowski also contends the claims are time-barred by the two-year statute of limitations “since the sexual conduct Castro complains of ended by March 2018. (MPA, 17; citing Wassmann, 24 Cal. App.5th at 852-853.) Third, Malachowski also contends that Plaintiff’s emotional distress claims are barred by the Workers Compensation exclusivity provision, since they arose from the workplace. (Id.; citing Jones v. Dep’t of Corr. & Rehab., 152 Cal.App.4th 1367, 1382-83 (2007).)[1]

Finally, Malachowski argues that Plaintiff’s NIED claim must fail as it is based on allegedly intentional conduct by his employer, and that Plaintiff’s IIED claim must also fail as it fails to present any evidence of any “extreme and outrageous” conduct. (MPA, 18-19.)

Here, Plaintiff’s Complaint states “[a]s a supervisor, Defendant MALACHOWSKI acted outrageously towards Plaintiff in a reckless and/or intentional manner not tolerated by a civilized society, and made unlawful by statute, by engaging in the harassing conduct against the Plaintiff...” (Complaint, ¶64.) It also states “[i]n carrying out the above conduct, Defendants were negligent because they breached their duty to provide Plaintiff with a workplace free from sexual harassment and abused their positions of authority. Defendants knew or should have known that the conduct was occurring. The conduct of Defendants and other management personnel exceeded the inherent risks of employment and was not the sort of conduct a reasonable person could cope with and expect to occur in within the workplace.” (Complaint, ¶69.)

Plaintiff asserts that triable issues exist with regard to the seventh and eighth causes of action. Plaintiff contends his emotional distress claims are not barred by the exclusivity rule since “discrimination is not a normal risk of the compensation bargain.” (Opp., 16-17; citing Fretland v. County of Humboldt (1999) 69 Cal.App.4th 1478, 1492.) Plaintiff further argues:

“Plaintiff’s manager engaged in outrageous conduct such as masturbating on his desk and conditioning favorable evaluations on sexual favors because Plaintiff is a man. Despite Plaintiff’s requests to ctop the conduct and focus on work, Malachowski continued her lewd conduct... Malachowski terminated other male employees who resisted her advances which Plaintiff took as a threat, and Malachowski acknowledged that Plaintiff was threatened by Malachowski’s firing of male employees...” (Id.)

However, Plaintiff fails to provide any supporting authority, or evidence to support these conclusory claims.

As Malachowski again correctly points out in the reply, Castro “ignores the rule requiring dismissal of these duplicative claims;” “ignores... the supposedly traumatic events occurred more than two years before he sued and are time-barred;” and ignores the Miklosy holding as described above. (Reply, 11-12.)

In order to maintain consistency with prior rulings and in viewing the evidence in the light most favorable to the nonmoving party, the court again finds no triable issues of material fact exist here and grants summary adjudication as to the seventh and eighth causes of action.

Plaintiff may recover damages “in an action from breach “not arising from contract” if Plaintiff proves by clear and convincing evidence that Defendant acted with malice, oppression, or fraud. (Civ. Code, § 3294(a).) “Malice means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” (Civ. Code, § 3294(c)(1).) “Oppression’ means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.” (Civ. Code, § 3294(c)(2).) “Fraud means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.” (Civ. Code, § 3294(c)(3).) A plaintiff’s “conclusory characterization of defendant’s conduct as intentional, willful and fraudulent is a patently insufficient statement of ‘oppression, fraud, or malice, express or implied, within the meaning of section 3294.” (Brousseau v. Jarrett (1977) 73 Cal.App.3d 864.)

“Viewing the evidence submitted in the light most favorable to Plaintiff, the court finds that no triable issues exist with regard to Plaintiff’s claim for punitive damages. Plaintiff has not demonstrated that MPI, and its managing agents, acted with fraud, oppression, or malice., Plaintiff does not submit admissible evidence in support of his argument that MPI, through its alleged managing agent Alba, acted with malice, oppression, or fraud when dealing with him. Plaintiff also did not rebut Defendants’ arguments in support of their motion for summary adjudication as to punitive damages.” (June 27 Order, 13-14.)

Malachowski here asserts that Plaintiff’s claim for punitive damages fails because Plaintiff has presented no facts establishing that the Malachowski acted with oppression, fraud, or malice. (MPA, 19-20.) Malachowski contends “the conduct alleged within the statute of limitations, Malachowski rubbing Castro’s leg with her foot for a second, does not come close to substantiating a claim for punitive damages.... Castro and Malachowski engaged in a consensual workplace relationship. There is no evidence that Malachowski engaged in any oppressive, malicious or fraudulent conduct vis a vis Castro.” (MPA, 20.)

In opposition, Plaintiff contends: (1) “Malachowski engaged in oppression by forcing Plaintiff to engage in sexual activities under the threat of issuing a negative performance evaluation which caused him to receive a demotion and less pay;” (2) “Malachowski engaged in fraud by following through on her threat and giving Plaintiff a false negative performance evaluation because Plaintiff resisted Malachowski’s sexual advances;” and (3) Malachowski’s conduct was malicious as she “sexually harassed other male employees... Plaintiff personally witnessed Malachowski sexually harass [other employees] and then terminate their employments.” (Opp., 14-15.) Plaintiff provides no supporting authority for these definitions, and again fails to provide evidence to support these conclusory contentions.

In reply, Malachowski correctly contends “Plaintiff’s claim that his relationship with Ms. Malachowski was anything other than consensual and welcomed is not supported by, and is in fact belied by, the overwhelming evidence.” (Reply, 12-13.)

“Plaintiff does not point to any evidence that any of Malachowski’s conduct, however inappropriate he argues it was, was undertaken with malice... Nor is there any evidence of fraud on Malachowski’s part. Finally, there is no evidence of oppression – which required more than simply the alleged inappropriate conduct itself. And Plaintiff’s argument that Malachowski’s supposed harassment of other employees – which again lacks any evidentiary support whatsoever – supports a claim for punitive damages by Plaintiff is equally misplaced. At this stage of the case, Plaintiff needs to support his claim for punitive damages with evidence of malice, fraud or oppression. He has not come close to doing so.” (Reply, 12-13.)

Viewing the evidence submitted in the light most favorable to Plaintiff, and in order to maintain consistency with prior rulings, the court again finds that no triable issues exist with regard to Plaintiff’s claim for punitive damages.

Plaintiff has not demonstrated that Malachowski acted with fraud, oppression, or malice and fails to submit admissible evidence in support of his conclusory arguments. Plaintiff further fails to rebut Malachowski’s argument in her moving papers which request a striking of punitive damages.

For these reasons, Malachowski’s motion is granted as to the claim for punitive damages.

[1] Malachowski also asserts that summary adjudication is warranted for the seventh and eighth causes of action first because “this cause of action fails for the same reasons that the harassment claims fail.” (MPA, 17.) Malachowski cites to Couch v. San Juan Unified Sch. Dist., 33 Cal.App.4th 1491, 1504 (1995) to support this contention; however, as Couch dealt with libel claims and emotional distress claims on the same operative set of facts, the court finds this supporting authority unpersuasive.