Judge: Gregory Keosian, Case: 21STCV11187, Date: 2024-03-05 Tentative Ruling

Case Number: 21STCV11187    Hearing Date: March 5, 2024    Dept: 61

Defendant Ralph Karubian’s Motion for Summary Adjudication of the second cause of action for FEHA harassment is GRANTED..

Plaintiff to give notice.

I.                   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 Ralph Karubian (Defendant) moves for summary adjudication of Plaintiff Erek Gordon’s (Plaintiff) second cause of action for harassment alleged against him personally, on the grounds that the only harassment Plaintiff suffered was at the hands of co-worker Mark Burgess, and Defendant cannot be personally liable for harassment he did not participate in. (Motion at pp. 4–5.)

Plaintiff in opposition argues that Defendant may be personally liable for harassment that he knew about and failed to discipline, and which he ultimately abetted by terminating Plaintiff’s employment in response to Plaintiff’s complaints. (Opposition at pp. 7–13.)

Case authority forecloses Plaintiff’s position. In Fiol v. Doellstedt (1996) 50 Cal.App.4^th 1318, the court addressed whether a supervisor could be personally liable for harassment for failing to address Plaintiff’s complaints, after and because of which Plaintiff was discharged from employment. (Id. at p. 1322.) The court held that although employees may be individually liable for the harassment that they aid and abet, “mere inaction by a non-harassing supervisor does not constitute aiding and abetting.” (Id. at p. 1327.) “[I]ndividual supervisory employees should not be placed at risk of personal liability . . . for personnel management decisions which have been delegated to the supervisor by the employer, such as deciding whether to investigate or take action on a complaint of sexual harassment.” (Id. at pp. 1327–1328.) “A non-harassing supervisor who fails to take action on a sexual harassment complaint by a subordinate has not engaged in personal conduct constituting harassment, but rather has made a personnel management decision which in retrospect may be considered to be inadequate or improper.” (Fiol v. Doellstedt (1996) 50 Cal.App.4th 1318, 1331.)

The situation is the same here. As with Fiol, Plaintiff presents no evidence of harassing conduct on the part of Defendant save the failure to discipline his harasser and his ultimate termination, both of which constitute personnel management activity for which individual liability does not lie.

The motion is therefore GRANTED.