Judge: Holly J. Fujie, Case: 23STCV18045, Date: 2024-01-05 Tentative Ruling

Case Number: 23STCV18045    Hearing Date: January 5, 2024    Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

MOVING PARTY: Defendants HBO Home Entertainment, Inc. and Maher Live, Inc. (collectively, “Moving Defendants”)

RESPONDING PARTY: Plaintiff

The Court has considered the moving, opposition and reply papers.

BACKGROUND

            This action was initiated on July 31, 2023 and arises out of an employment relationship.  The currently operative first amended complaint (the “FAC”), filed on August 21, 2023, alleges: (1) whistleblower retaliation in violation of Labor Code section 1102.5; (2) age, sex, and gender discrimination in violation of the Fair Employment and Housing Act (“FEHA”); (3) sexual harassment in violation of FEHA; and (4) retaliation in violation of FEHA.

In relevant part, the FAC alleges: In 2011, Plaintiff was hired as a set photographer for the television program Real Time With Bill Maher (“RT”).  (FAC ¶ 16.)  Moving Defendants’ work environment became hostile toward Plaintiff in 2013.  (FAC ¶ 20.)  In November 2013, Alex Brooks (“Brooks”) was improperly admitted to a private wrap party for RT staff, where he made improper advances toward Plaintiff and made Plaintiff feel uncomfortable.  (See FAC ¶ 21.)[1]  One night in February 2014, Brooks sexually assaulted Plaintiff while she was finishing her work.  (See FAC ¶¶ 23-25.)  Plaintiff informed her employers of this conduct and was assigned security.  (See FAC ¶¶ 27-28.)  On February 21, 2014, Brooks evaded security precautions and again approached Plaintiff on set before being escorted off the premises.  (See FAC ¶ 29.)

After this incident, two of Brooks’s fellow union members began mistreating Plaintiff.  (See FAC ¶ 32.)  Kyle Beebe (“Beebe”) would disparage Plaintiff for complaining about Brooks and invade her personal space in order to intimidate her.  (Id.)  A boom operator swung a camera towards Plaintiff’s head in an attempt to hit her.  (Id.) 

In March 2019, Brooks again bypassed on-set security to approach and intimidate Plaintiff.  (See Complaint ¶¶ 33-36.)  After the March 2019 incident and the increased security measures that were implemented, Plaintiff’s supervisors seemed displeased with her and appeared to place the blame on Plaintiff.  (See FAC ¶ 37.)  Brooks did not appear on set again, but his friend Beebe would sometimes confront Plaintiff in order to make her feel unsafe.  (FAC ¶ 41.) 

When lockdowns were instituted in response to the COVID-19 pandemic, Moving Defendants paid all RT employees except for Plaintiff.  (FAC ¶ 47.)  Plaintiff was terminated on July 15, 2020.  (FAC ¶ 48.)  Plaintiff filed an administrative complaint with the Department of Fair Employment and Housing on August 3, 2022.  (FAC ¶ 3, Exhibit 1.) 

Moving Defendants filed a demurrer (the “Demurrer”) to the third cause of action on the grounds that the FAC fails to state sufficient facts to constitute a cause of action.

DISCUSSION

Meet and Confer

The meet and confer requirement has been met.

Legal Standard

A demurrer tests the sufficiency of a complaint as a matter of law.  (Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1358.)  The court accepts as true all material factual allegations and affords them a liberal construction, but it does not consider conclusions of fact or law, opinions, speculation, or allegations contrary to law or judicially noticed facts.  (Shea Homes Limited Partnership v. County of Alameda (2003) 110 Cal.App.4th 1246, 1254.)  With respect to a demurrer, the complaint must be construed liberally by drawing reasonable inferences from the facts pleaded.  (Rodas v. Spiegel (2001) 87 Cal.App.4th 513, 517.)  A demurrer will be sustained without leave to amend if there exists no reasonable possibility that the defect can be cured by amendment.  (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) 

Third Cause of Action: Harassment

Employers may not harass an employee because of race, religious creed, color, national origin, ancestry, physical¿disability, mental¿disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status.  (Gov. Code § 12940,¿subd. (j)(1).)  The elements of a cause of action for harassment under FEHA are: (1) the plaintiff belongs to a protected group; (2) the plaintiff was subjected to harassment; (3) the harassment complained of was based on the plaintiff’s membership in the protected group; (4) the harassment complained of was sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment; and (5)¿respondeat¿superior.  (Jones v. Department of Corrections & Rehabilitation¿(2007) 152 Cal.App.4th 1367, 1377.)  The court looks to the totality of the circumstances to determine that a hostile work environment existed.  (Etter v. Veriflo Corp. (1998) 67 Cal.App.4th 457, 466.) A court looks at: (1) the frequency of harassment; (2) the severity of harassment; (3) whether the conduct was threatening, humiliating, or merely an offensive utterance; and (4) did the harassment interfere with a plaintiff’s work performance.  (Id.) 

Whether the conduct complained of is sufficiently pervasive must be determined “from the totality of the circumstances.” ¿(Fisher v. San Pedro Peninsula Hospital¿(1989) 214 Cal.App.3d 590, 609.)  The plaintiff must prove that the defendant’s conduct would have interfered with a reasonable employee's work performance and would have seriously affected the psychological well-being of a reasonable employee and that she was actually offended.  (Id.¿at 609-10.)¿ Harassment typically does not include conduct necessary for management of the employer’s business or performance of the supervisory employee’s job.  (Reno v. Baird¿(1998) 18 Cal.4th 640, 647.)  Rather, harassment consists of conduct outside the scope of necessary job performance, conduct presumably engaged in for personal gratification for meanness or bigotry, or for other personal motives.  (Id.)¿  Some¿official employment actions done in furtherance of a supervisor’s managerial role, however, can also have a secondary effect of communicating a hostile message.  (Roby v. McKesson (2009) 47 Cal.4th 686, 709.)  This occurs when the actions establish a widespread pattern of bias.  (Id.)  Accordingly, commonly necessary personnel management actions can support a¿harassment action if the evidence of biased personnel management actions is relevant to prove the communication of a hostile message.  (See id.) 

A plaintiff asserting a cause of action arising under the FEHA must first file a timely complaint with the DFEH and obtain the agency’s permission to file a civil action in court.  (Brown v. City of Sacramento (2019) 37 Cal.App.5th 587, 598.)  As of January 1, 2020, the period to file an administrative charge is three years.  (A.B. 9, 2019 Cal Stats. Ch. 709, Sec. 3; Pollock v. Tri-Modal Distribution Servs., Inc. (2021) 11 Cal. 5th 918, 931.)  The three-year limitations period does not apply to claims that lapsed under the previous one-year limitations period.  (See A.B. 9, 2019 Cal Stats. Ch. 709, Sec. 3.) 

It is the plaintiff's burden to plead and prove the timely filing of the DFEH complaint.  (Kim v. Konad USA Distribution, Inc. (2014) 226 Cal.App.4th 1336, 1345-46.)  Therefore, when the defendant has asserted the statute of limitation defense, the plaintiff has the burden of proof to show his or her claims are timely under the continuing violation doctrine.  (Jumaane v. City of Los Angeles (2015) 241 Cal.App.4th 1390, 1402.)  The continuing violation doctrine requires proof that the conduct occurring outside the limitations period was (1) similar or related to the conduct that occurred within the limitations period; (2) the conduct was reasonably frequent; and (3) the conduct had not yet become permanent.  (Id.)

The harassment claim alleged in the FAC is rooted in Brooks’s alleged misconduct that occurred in 2014 and allegedly retaliatory hostilities that Plaintiff experienced thereafter.  As alleged, the FAC does not clearly allege facts that show that the conduct that occurred in 2014 and the conduct that later occurred in 2019 constitute a continuing violation.  Furthermore, the Court notes that facts describing mistreatment Plaintiff experienced after the 2014 assault by Brooks do not include details that link this treatment to her membership in a protected group.  Rather, the FAC alleges that Plaintiff was mistreated as a consequence of her complaining about the attack and the additional security measures that were implemented on set.  (See, e.g., FAC ¶¶ 32, 37.)

The Court finds that the FAC fails to state a viable harassment claim and therefore SUSTAINS the Demurrer to the third cause of action with 20 days leave to amend.  Should Plaintiff file an amended pleading that is successfully challenged by demurrer, the Court will consider denying Plaintiff further leave to amend.

Moving party is ordered to give notice of this ruling. 

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org.  If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar. 

  Dated this 5th day of January 2024