Judge: Gregory Keosian, Case: 21STCV00833, Date: 2023-10-17 Tentative Ruling

Case Number: 21STCV00833    Hearing Date: October 17, 2023    Dept: 61

Defendant The Roman Catholic Archbishop of Los Angeles’s Motion for Summary Adjudication is GRANTED as to the first and second causes of action for discrimination and retaliation under Title VII, and DENIED as to the fourth cause of action under the Ralph Act.

Defendant to provide notice.

I.                   OBJECTIONS

Plaintiff Rosa Mendoza submits objections to the materials submitted by Defendant Roman Catholic Archdiocese of Los Angeles in its motion for summary adjudication. The objections to the declaration of Erik Landesfeind and James Anguiano are OVERRULED, as Landesfeind supports his testimony with personal knowledge as to his own and Plaintiff’s job duties, while Anguiano provides sufficient basis for the applicability of the business records exception to the records which he authenticates. (Evid. Code § 1271.) Objection No. 13 to the declaration of Jennifer Quinones is SUSTAINED, as Quinones’ testimony concerning the whereabouts of Father Khumbah are based on hearsay.

Defendant’s objections to Plaintiff’s evidence are SUSTAINED as to Objections No. 18 and 19, as to Plaintiff’s testimony concerning Quinones’ feelings about receiving hugs from Father Khumbah. Defendant’s other objections are OVERRULED.

II.                MOTION FOR SUMMARY JUDGMENT

A party may move for summary judgment “if it is contended that the action has no merit or that there is no defense to the action or proceeding.”  (Code Civ. Proc. § 437c, subd. (a).) “[I]f all the evidence submitted, and all inferences reasonably deducible from the evidence and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law,” the moving party will be entitled to summary judgment.  (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) A motion for summary adjudication may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment.  (Code Civ. Proc. § 437c, subd. (f)(2).)

The moving party bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact, and if he does so, the burden shifts to the opposing party to make a prima facie showing of the existence of a triable issue of material fact.  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850; accord Code Civ. Proc. § 437c, subd. (p)(2).)

Once the defendant has met that burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.  (Aguilar, supra, 25 Cal.4th at 850.)  The plaintiff may not rely upon the mere 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 that cause of action or a defense thereto.  (Ibid.)  To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence.  (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

Defendant Roman Catholic Archbishop of Los Angeles (Defendant) seeks summary adjudication of Plaintiff Rosa Mendoza’s (Plaintiff) first, second, and fourth causes of action for Title VII discrimination, Title VII retaliation, and Ralph Act violations respectively. Defendant argues that the FEHA discrimination claims are time-barred, and that Defendant had no reason to know of the alleged harassment. (Motion at pp. 9–13.) Defendant argues that the retaliation claim fails because Plaintiff did not engage in protected activity and did not suffer any adverse employment actions as a consequence. (Motion at pp. 13–16.) Finally, Defendant argues that Plaintiff’s Ralph Act claim fails because Defendant was not aware of any alleged harassing conduct, and because no evidence suggests that the conduct was motivated by Plaintiff’s gender. (Motion at pp. 16–19.)

Plaintiff’s Title VII discrimination claim is time-barred. The claim arises in harassing conduct committed by Defendants Father Etienne Khumbah and Father Michael Manase. (TAC ¶¶ 24–27.) A plaintiff filing a claim for unlawful employment practices under Title VII must file their charge with a state authority (such as California’s Department of Fair Employment and Housing (DFEH)) “within three hundred days after the alleged unlawful employment practice occurred.” (42 U.S.C. § 2000e-5, subd. (e)(1).) Thus at least one act of harassment must have occurred within the 300 days preceding the filing of the charge. (See National R.R. Passenger Corp. v. Morgan (2002) 536 U.S. 101, 117.) Plaintiff here filed her DFEH claim on December 3, 2020. (Plaintiff’s Separate Statement of Undisputed Facts (PUMF) No. 5.) However, Father Khumbah last day of assignment at the Parish was June 30, 2018, and Father Manase’s last day of assignment was July 30, 2019, both more than 300 days earlier than the date of filing Plaintiff’s DFEH charge. (Anguiano Decl. ¶¶ 5–6, Exhs. A, B; Landesfeind Decl. ¶¶ 8–9.) Contrary to Plaintiff’s objections, Erik Landesfeind provides sufficient basis in personal knowledge in his capacity as business manager of the parish to testify as to the nature of Khumbah and Manase’s assignments, and Father James Anguiano, as Defendant’s Vicar for Clergy responsible for overseeing assignments, provides sufficient basis for application of the business records exception of Evidence Code § 1271 to the records that indicate the dates of Khumbah and Manase’s assignments. (Anguiano Decl. ¶¶ 2–3; Landesfeind Decl. ¶¶ 1–2.) Plaintiff submits no evidence to the contrary in opposition.

The motion is therefore GRANTED as to the first cause of action.

Plaintiff’s retaliation claim also fails, as there are no triable issues of material fact as to whether plaintiff has suffered an adverse employment action. The second element of a claim for retaliation under Title VII is that the “employer subjected [the employee] to an adverse employment action.” (Cheatham v. City of Phoenix (9th Cir. 2017) 699 Fed.Appx. 647, 648.) Such an action is one that “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” (Burlington Northern and Santa Fe Ry. Co. v. White (2006) 548 U.S. 53, 68, internal quotation marks omitted.)

Here, Plaintiff has testified at deposition that she was never terminated from her position, that she never resigned therefrom, and that she never received a pay cut or demotion. (PUMF No. 407–409, 413–414.) Plaintiff disputes these facts only to the extent of speculating that Plaintiff might not be allowed back at her position from extended medical leave of absence, begun on May 18, 2020. (PUMF No. 411.) This is speculation unsupported by evidence.

The motion is therefore GRANTED as to the second cause of action.

This leaves Plaintiff’s fourth cause of action under the Ralph Act. “Under the Ralph Act, a plaintiff must establish the defendant threatened or committed violent acts against the plaintiff or their property, and a motivating reason for doing so was a prohibited discriminatory motive, or that the defendant aided, incited, or conspired in the denial of a protected right.” (Gabrielle A. v. County of Orange (2017) 10 Cal.App.5th 1268, 1291.) An employer may be liable under the Ralph Act “where an employer fails to investigate or respond to charges that an employee committed an intentional tort, such as assault or battery.”  Ventura v. ABM Industries Inc. (2012) 212 Cal.App.4th 258, 272.) Defendant here argues that it cannot be liable under the Ralph Act because it never learned of any of the alleged harassment at issue. (Motion at pp. 11–13, 17.)

Triable issues exist as to whether Defendant was on notice of the alleged harassing behavior of Khumbah and Manase. Here, Plaintiff testified at deposition that she complained to Father Landesfeind about alleged harassment by Manase. (Opposition Exh. 4 at pp. 328–330.) She also testified that she had told the Parish receptionist, Jennifer Quinones, about the harassment. (Opposition Exh. 4 at p. 312.) Quinones testified to her training and duty to pass on sexual harassment complaints to Landesfeind. (Opposition Exh. 3 at pp. 14–16.) Plaintiff — who lacks facility with English and often spoke to Landesfeind through a translator (Opposition Exh. 1 at p. 16) — testified that she complained to Quinones with the expectation that it would be relayed to him. (Opposition Exh.4 at pp. 312–314.) Landesfeind himself stated that the parish was a see-something, say-something environment, in which he would expect any employee complaints to be relayed to him. (Opposition Exh. 1 at pp. 34–35.) This evidence creates a dispute as to whether Quinones had “an official or strong de facto duty to act as a conduit to management for complaints about work conditions,” such that her purported knowledge of Plaintiff’s complaint may be attributable to Defendant. (Brooks v. City of San Mateo (9th Cir. 2000) 229 F.3d 917, 925.)

Defendant finally argues that Plaintiff has no evidence to suggest that the alleged conduct on the Khumbah or Manase was motivated by Plaintiff’s sex or gender. (Motion at pp. 17–18.) But this argument is ill-supported, since Defendant identifies no evidence in the record to suggest that Plaintiff will be unable to prove such a motivation. And in any event, such evidence exists in the character of the harassment that Plaintiff has described, such as unwanted sexual touching in the form of unwelcome hugs, and one instance in which Khumbah brought her hand to touch his penis. (Opposition Exh. 4 at pp. 311–312, 321.) Such conduct is well recognized as sexual harassment. (See Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 607.)

The motion is therefore DENIED as to the fourth cause of action under the Ralph Act.