Judge: Joseph Lipner, Case: 23STCV00718, Date: 2024-09-26 Tentative Ruling
Case Number: 23STCV00718 Hearing Date: September 26, 2024 Dept: 72
SUPERIOR COURT OF CALIFORNIA
COUNTY OF LOS ANGELES
DEPARTMENT 72
TENTATIVE
RULING
|
DAVID JESSEN, Plaintiff, v. THE WALT DISNEY COMPANY, et al., Defendants. |
Case No:
23STCV00718 Hearing Date: September 26, 2024 Calendar Number: 5 |
Defendants Disney, Disney Content Sales, LLC (“Disney
Content”), Walt Disney Motion Pictures Group, Inc. (“Disney Motion Pictures”),
Disney Enterprises, Inc. (“Disney Enterprises”), Buena Vista Home
Entertainment, Inc. (“Buena Vista”) (collectively, “Disney”), and individual
Defendant David Kite (“Kite”) (collectively with Disney, “Defendants”) move for
summary judgment on the complaint filed by Plaintiff David Jessen
(“Plaintiff”). Alternatively, Defendants seek summary adjudication on each of
Plaintiff’s causes of action, as well as Plaintiff’s demand for punitive
damages.
The Court DENIES the motion for summary judgment.
The Court GRANTS the motion for summary adjudication as to
Plaintiff’s seventh claim.
The Court DENIES the motion for summary adjudication as to
Plaintiff’s remaining claims.
This
action stems from Plaintiff’s employment with Defendants Disney, Disney Content
Sales, LLC (“Disney Content”), Walt Disney Motion Pictures Group, Inc. (“Disney
Motion Pictures”), Disney Enterprises, Inc. (“Disney Enterprises”), and Buena
Vista Home Entertainment, Inc. (“Buena Vista”). Plaintiff is a gay man and
suffers from a physical disability. Plaintiff alleges that he was harassed,
discriminated against, and eventually constructively terminated for his age,
disability, and sexual orientation. Plaintiff complained about this alleged conduct
and alleges that Defendants retaliated against him by demoting him.
The following facts are taken from the parties’ separate
statements. The Court considers the evidence in the light most favorable to the
nonmoving party.
Plaintiff
was a creative marketing executive at Disney with the position of Vice
President. Plaintiff joined Disney in 1995 as Director of International Product
Development. (Plaintiff’s Additional Fact (“AF”) 1.) In 2016, Jessen was
promoted to the position of Vice President of Marketing Creative, where he
oversaw approximately 30 employees and 15 vendors across four departments. (AF
2.)
Plaintiff
contends that his former skip-level manager, David Kite, discriminated against
Plaintiff and other employees based on age, made offensive comments about
Plaintiff’s sexual orientation, and diminished Plaintiff’s role in order to
cause Plaintiff embarrassment. Plaintiff first started working under Kite after
his 2016 promotion. (AF 5.)
Kite
knew that Plaintiff was gay prior to becoming Plaintiff’s boss. After meetings
with then-Disney President Alan Bergman, Kite would regularly ask Jessen “Does
Alan Bergman know you’re gay?”, which Plaintiff understood to be a threat. (AF
6-7.) Plaintiff asked Kite “Why does that matter?” (AF 8.) Kite continued this
questioning after becoming Plaintiff’s boss. (AF 9.)
Plaintiff’s
role involved hiring vendors for different projects. Kite repeatedly instructed
Plaintiff, who he knew was 55 years old at the time, to “get fresh blood”,
referring to hiring new blood and younger talent. (AF 11.) Kite made repeated
remarks about Plaintiff’s “longevity” at Disney and would note that Plaintiff
had been at the company “a long time.” (AF 12.) Kite would also circumvent
Plaintiff in the chain of command and exclude Plaintiff form work emails
related to Plaintiff’s team and projects. (AF 13-14.)
In
October 2017, Kite submitted a performance evaluation of Plaintiff which
contained false statements about Plaintiff’s conduct. (AF 15.) Kite reduced
Plaintiff’s bonus from $129,000.00 in the prior year to $85,000.00 for 2017.
(AF 16-7.) Plaintiff had not received a bonus of less than $100,000.00 since
2014. (AF 18.)
In
2017, Plaintiff requested that Kite promote him to the position of Senior Vice
President because Plaintiff managed four departments, which historically had
only been done by Senior Vice Presidents; however, Kite told Plaintiff that he
should look for another job if he was not happy. (AF 19-21.)
In
2017, Plaintiff reported Kite’s comments regarding his age and sexual
orientation to HR Business Partner Susan Santana. (AF 22-23.) Santana
acknowledged that Kite was “crossing some lines”, but did not take any action to
investigate Plaintiff’s allegations. (AF 24.)
In
March 2018, Kite was promoted and Vicky Free became Plaintiff’s boss, replacing
Kite. A few months later, Free stated that she had doubts about Plaintiff
because he had been at Disney for “a long time.” (AF 26.) Plaintiff learned
that, behind his back, Free had referred to him as a “dinosaur” who had been at
Disney “too long to have fresh ideas” and had stated that his work and approach
to work were “antiquated.” (AF 27.)
In
2018, Senior Vice President Janice Marinelli asked Plaintiff in a meeting with
Bergman if Plaintiff found a certain male actor attractive. (AF 31.) Plaintiff
felt embarrassed and humiliated by the display of his sexual orientation in
front of high-level executives. (AF 32.)
In
March 2019, Free resigned from her position, and Plaintiff again began to
report to Kite. Kite resumed asking Plaintiff if Bergman knew Plaintiff was
gay. (AF 7.)
In
early 2019, Plaintiff told Kite that he needed facial surgery due to muscle
loss from a previous surgery. A few months before the surgery, Kite walked into
Plaintiff’s office, closed the door, and questioned Plaintiff “Why are you
getting this done?”, “How much is it costing you?”, and “Where are you getting
the money?” (AF 35.)
On
September 6, 2019, Kite informed Plaintiff that he was demoting him to Disney
Brand Ambassador. (AF 36.) Defendants contend that this change was part of a
merger that occurred when Disney acquired certain 21st Century Fox (“Fox”)
assets, but does not include this assertion in its separate statement or
explain how the reorganization worked. Kite told Plaintiff that Plaintiff would
no longer be heading four departments and that Plaintiff’s position had been
replaced by three Senior Vice Presidents, all of whom were significantly
younger than Plaintiff. (AF 36-37.) Kite asked Plaintiff “Aren’t you going to
be happy to now be able to not have as much stress and slow down?” (AF 38.)
Plaintiff had no performance issues and had never complained to Kit that he was
struggling with his workload. (AF 39-40.)
A
few months later, Plaintiff learned that his assistant of 22 years had been
reassigned to Tim Calia, the younger individual who took over two departments
previously managed by Plaintiff. (AF 41.) Plaintiff was the only vice president
whose assistant was reassigned. (AF 42.)
Shortly
after Calia became Plaintiff’s boss, Kite falsely told Calia that Disney
business partners, including Pixar, did not want to work with Plaintiff but
that Calia should not discuss the matter with Plaintiff. (AF 43-44.) As a
result, Calia significantly limited Plaintiff’s work and excluded him from
important meetings and emails. (AF 45.)
In
October 2019, Kite gave Plaintiff his performance review, focusing on
Plaintiff’s longevity at the company. (AF 47.) Plaintiff raised concerns about
his demotion and the loss of his team. (AF 49-50.)
On
April 17, 2020, Kite and Calia assigned Plaintiff to a Disney Digital Ideation
project, which was never utilized after Plaintiff completed it. (AF 54.) Calia
instructed Plaintiff not to seek help form his co-workers or talk to anyone
about the project. (AF 55.) Plaintiff was only given a couple weeks to complete
the project. (AF 55.) This was the first time in over 20 years of his career
that Plaintiff, as an executive, was not allowed to collaborate with other
employees on a project. (AF 56.)
Disney
also delayed Plaintiff’s performance review by six months and reduced his
annual bonus to $45,000.00. (AF 57.)
In
December 2021, Plaintiff learned that Disney was demoting him to the position
of Director, a title that he had last held in 1995 when he was hired. (AF 60.)
Plaintiff learned that his permanent office, $980.00 monthly car allowance, and
car space had all been permanently taken away. (AF 61.)
On
December 6, 2021, Plaintiff contacted Jim Lyopoulos, Senior Vice President of
Human Resources for Disney Media, and reported unlawful discrimination and
requested a meeting to discuss his allegations. (AF 62-63.)
Shana
Bawek, a Vice President of Employee Relations, investigated Plaintiff’s
concerns over the course of several months. (AF 64-75.) The specific contents
of the Bawek’s resulting investigation report are subject to a protective
order. However, other employees corroborated Plaintiff’s allegations about
Kite’s verbal conduct as well as the dramatic reduction of Plaintiff’s role.
(AF 65-75.)
In
March 2022, while the investigation was ongoing, Plaintiff suffered a stroke
and took a six-week medical leave due to stress resulting from Disney’s
conduct. (AF 76.)
At
the end of the investigation, Bawek determined that the conduct of which
Plaintiff complained was not discriminatory. (AF 78.)
Bawek
contacted Plaintiff in May 2022 to deliver the outcome of the investigation.
(AF 89.) Plaintiff was very upset by the result, but continued to work under
Calia for the time being. Plaintiff continued to be excluded from meetings in
this timeframe. (AF 91.) Plaintiff felt that Kite and Calia had faced no
accountability for their conduct and his health deteriorated further. (AF 92.)
Plaintiff resigned from his position on November 11, 2022. (AF 92.)
Plaintiff
filed this action on January 13, 2023 against Defendants Disney, Disney
Content, Disney Motion Pictures, Disney Enterprises, Buena Vista, David Kite, and
Shana Bawek (who was later dismissed from the action), raising claims for (1)
discrimination in violation of FEHA; (2) harassment in violation of FEHA; (3)
retaliation in violation of FEHA; (4) failure to prevent discrimination,
harassment, and retaliation; (5) whistleblower retaliation in violation of Labor
Code, section 1102.5; (6) wrongful constructive termination in violation of
public policy; and (7) intentional infliction of emotional distress (“IIED”).
All claims are raised against Disney. Only the second and seventh claims are
raised against Kite.
Defendants
moved for summary judgment on February 1, 2024. Plaintiff filed an opposition
and Defendants filed a reply.
The Court has reviewed the parties’ evidentiary objections.
The Court sustains the following of Defendants’ objections: 37
(hearsay); 38 (hearsay).
The Court overrules the parties’ remaining objections
without prejudice to their ability to raise them at trial.
The purpose of a motion for
summary judgment or summary adjudication “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., supra, 25 Cal.4th at p. 843.) “Code of
Civil Procedure section 437c, subdivision (c), requires the trial judge to
grant summary judgment if 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.” (Adler v.
Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)
“In ruling on the motion,
the court must consider all of the evidence and all of the inferences
reasonably drawn therefrom [citation] and must view such evidence [citations]
and such inferences [citations] in the light most favorable to the opposing
party.” (Aguilar, supra, at pp. 844-845 [quotation marks
omitted].)
“On a motion for summary
judgment, the initial burden is always on the moving party to make a prima
facie
showing that there are no triable issues of material fact.” (Scalf v. D. B.
Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant moving
for summary judgment or summary adjudication “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 . . . cannot be established, or that there
is a complete defense to the cause of action.” (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 the 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.) “If the plaintiff cannot do
so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente
Medical Center (2008) 159 Cal.App.4th 463, 467.)
To establish a claim for discrimination, a plaintiff must
show “that (1) [the plaintiff] was a member of a protected class, (2) [the
plaintiff] was qualified for the position he sought or was performing
competently in the position [they] held, (3) [the plaintiff] suffered an
adverse employment action, such as termination, demotion, or denial of an
available job, and (4) some other circumstance suggests discriminatory motive.”
(Guz v. Bechtel National Inc. (2000) 24 Cal.4th 317, 355.)
Under the McDonnell Douglas framework, the employer
must carry the burden of showing the employee's action has no merit. (Code Civ.
Proc., § 437c, subd. (p)(2).) It may do so with evidence that either: (1)
indicates “that one or more of plaintiff’s prima facie elements is lacking,” or
(2) shows some legitimate, nondiscriminatory reason for the action taken
against the employee. (Caldwell v. Paramount Unified School Dist. (1995)
41 Cal.App.4th 189, 203.)
If defendant meets its burden, the burden then shifts to the
plaintiff to produce substantial evidence that the employer’s showing was
untrue or pretextual by raising at least an inference of discrimination or
retaliation. (Hersant v. California Department of Social Services
(1997) 57 Cal.App.4th 997, 1004-1005.) “In short, by applying¿McDonnell
Douglas’s shifting burdens of production in the context of a motion for
summary judgment, ‘the judge [will] determine whether the litigants have
created an issue of fact to be decided by the jury.’ [Citation.]” (Caldwell,
supra, 41 Cal.App.4th at p. 203.)
Discrimination claims under FEHA have a 3-year statute of
limitations. (Gov. Code, § 12960, subd. (e).) Accordingly, the Court considers
conduct that occurred on or after January 13, 2020. Although Plaintiff’s
initial demotion falls outside of this range, it still provides evidence as to
Defendants’ motives. Plaintiff has introduced substantial evidence indicating
that Kite was biased against Plaintiff due to Plaintiff’s age and sexual orientation.
Kite then told Calia to keep Plaintiff away from major partners of Disney, and
Alia subsequently assigned Plaintiff to the ideation project by himself in
April 2020. After Plaintiff complained, he was demoted in December 2021 and had
a number of benefits taken away. These facts would allow an inference that Kite’s
bias was the underlying cause of the adverse actions within the statutory
period.
The Court denies summary adjudication on this claim. The
Court therefore also denies summary judgment.
To establish a prima facie case of a hostile work
environment, [the plaintiff] must show that (1) [plaintiff] is a member of a
protected class; (2) [plaintiff] was subjected to unwelcome harassment; (3) the
harassment was based on [plaintiff’s] protected status; (4) the harassment
unreasonably interfered with [plaintiff’s] work performance by creating an
intimidating, hostile, or offensive work environment; and (5) defendants are
liable for the harassment.” (Ortiz v. Dameron Hospital
Assn. (2019) 37 Cal.App.5th 568, 581.)
“[T]he adjudicator’s inquiry should center, dominantly, on
whether the discriminatory conduct has unreasonably interfered with the
plaintiff’s work performance. To show such interference, ‘the plaintiff need
not prove that his or her tangible productivity has declined as a result of the
harassment.’ It suffices to prove that a reasonable person subjected to the
discriminatory conduct would find, as the plaintiff did, that the harassment so
altered working conditions as to ‘make it more difficult to do the job.’ ” (Harris
v. Forklift Sys. (1993) 510 U.S. 17, 25, conc. opn. of Ginsburg, J.; see
Gov. Code, § 12923, subd. (a) [endorsing this language as reflective of
California law].) A single incident of harassment may be enough to constitute a
hostile work environment if it “unreasonably interfered with the plaintiff’s
work performance or created an intimidating, hostile, or offensive working
environment.” (Gov. Code, § 12923, subd. (b).)¿The court shall use the totality
of the circumstances to determine whether there exists a hostile work
environment. (Gov. Code, § 12923, subd. (c).)¿
Defendants argue that Plaintiff’s claim is time-barred with
respect to conduct prior to December 2019.
FEHA harassment claims have a three-year statute of
limitations. (Gov. Code, § 12960, subd. (e)(3).) Plaintiff filed this action on
January 13, 2023. Thus, to be actionable, violations must have accrued on or
after January 13, 2020.
Plaintiff admitted in his deposition that he had not had any
interactions with Kite after December 2019 and that, as a result, Kite had said
anything offensive to Plaintiff after that time regarding Plaintiff’s age,
medical condition, or sexual orientation. (Defendants’ Exhibit 1 at pp.
161:18-162:9.)
Plaintiff argues that Kite’s conduct constitutes a
continuing violation.
“[H]ostile work
environment claims, … by their very nature involve repeated conduct and thus
cannot be said to occur on any particular day.” (Id. at 1057.) “Because a harassment claim is composed of a series
of separate acts that collectively constitute one unlawful employment practice,
… that it does not matter that some of the component parts fall outside the
statutory time period.” (Yanowitz v.
L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1056 [internal quotations and
citations omitted].)
Under the continuing violations doctrine, a court analyzes
whether “the employer's actions were (1) sufficiently similar in
kind—recognizing, as this case illustrates, that similar kinds of unlawful
employer conduct, such as acts of harassment or failures to reasonably
accommodate disability, may take a number of different forms [Citation]; (2)
have occurred with reasonable frequency; (3) and have not acquired a degree of
permanence.” (Yanowitz v. L'Oreal USA, Inc.,
supra, 36 Cal.4th at p. 1059.)
Here, Plaintiff suffered a string of demotions alongside a
series of comments about his protected identities. The evidence supports a
claim that demotions are connected to Kite’s bias against Plaintiff at multiple
points, including when Kite told Calia that Pixar and other Disney partners did
not want to work with Plaintiff, and when Plaintiff was put on an ideation
project with a short turnaround and no ability to consult with fellow
employees. Thus, even though Kite did not talk directly to Plaintiff after
2019, Kite’s actions within the statutory period still impacted Plaintiff and
Plaintiff’s job performance. These actions were sufficiently similar in kind
and occurred with sufficient frequency to form a continuing violation. Further,
they had not yet acquired a degree of permanency by the time the statutory
period began, because Plaintiff continued to suffer new harms from new actions
within the statutory period.
Thus, the continuing violation doctrine applies here. There
is a triable issue of fact that Kite’s actions created a hostile work
environment for Plaintiff on the basis of Plaintiff’s protected characteristics
within the statutory period.
The Court therefore denies summary adjudication on this
claim.
“To establish a prima facie case of retaliation under the
[Fair Employment and Housing Act] FEHA, a plaintiff must show (1) he or she
engaged in a ‘protected activity,’ (2) the employer subjected the employee to
an adverse employment action, and (3) a causal link existed between the
protected activity and the employer’s action.” (Meeks v. Autozone, Inc. (2018) 24 Cal.App.5th 855, 878-879,
brackets omitted.) “An ‘adverse employment action,’ which is a critical
component of a retaliation claim, requires a substantial adverse change in the
terms and conditions of the plaintiff’s employment.” (Holmes v. Petrovich Development Co., LLC (2011) 191 Cal.App.4th
1047, 1063, quotation marks omitted.)
Defendants argue that there is no causal connection between
the comments about his age and sexual orientation and Plaintiff’s subsequent
demotions.
Plaintiff sent his first demand letter in February 2020. In
April 2020, Plaintiff was assigned to the ideation project.
The parties do not dispute that Plaintiff had complained
about the comments about his sexual orientation by late 2021. (Reply at p. 13:
13-17.) Plaintiff was demoted to Director in December 2021.
While adverse actions near in time to complaints do not
necessarily give rise to an inference of retaliation, Plaintiff has identified
a pattern of complaints and adverse actions that are close in time. Further, as
discussed above, Plaintiff’s assignment to the ideation project was ordered by Calia
– who Kite had told to limit Plaintiff’s role. Thus, a reasonable jury could
find that one or both of these actions were retaliatory.
The Court denies summary adjudication on this claim.
The elements of a cause of action for failure to prevent
harassment or retaliation are: (1) actionable discrimination or harassment by
employees or nonemployees; (2) defendant’s legal duty of care toward plaintiff
(i.e., defendant is the plaintiff’s employer); (3) breach of that duty (i.e.,
failure to take all reasonable steps necessary to prevent discrimination and
harassment from occurring); (4) legal causation; and (5) damages to plaintiff.
(Trujillo v. North County Transit
District (1998) 63 Cal.App.4th 280, 287, 289; Bradley v. Department of Corrections & Rehabilitation (2008)
158 Cal.App.4th 1612, 1630; Gov. Code, § 12940.)
Defendants argue that this claim fails because Disney has
appropriate policies and procedures to reasonably prevent discrimination.
However, Plaintiff has provided evidence that Disney failed to properly
investigate Plaintiff’s complaints.
Defendants argue that this claim fails because it is
derivative of Plaintiff’s discrimination, harassment, and retaliation claims.
Because the Court denies summary adjudication on those claims, the Court denies
summary adjudication on this claim as well.
Labor Code Section 6310(b) provides that:
“Any employee who is
discharged, threatened with discharge, demoted, suspended, or in any other
manner discriminated against in the terms and conditions of employment
by their employer because the employee has made a bona fide oral or
written complaint to the [California Division of Occupational Safety and
Health], other governmental agencies having statutory responsibility for or
assisting the division with reference to employee safety or
health, their employer, or their representative, of unsafe
working conditions, or work practices, in their employment or place
of employment, or has participated in an employer-employee occupational health
and safety committee, shall be entitled to reinstatement and reimbursement for
lost wages and work benefits caused by the acts of the employer.
(Labor Code Section 6310(b).)
As discussed above, Plaintiff has created a plausible
inference of retaliation in response to his complaints of unlawful
discrimination and harassment. The Court therefore denies summary adjudication
as to this claim.
“In order to establish a constructive discharge, an employee
must plead and prove . . . that the employer either intentionally created or
knowingly permitted working conditions that were so intolerable or aggravated
at the time of the employee’s resignation that a reasonable employer would
realize that a reasonable person in the employee’s position would be compelled
to resign.” (Turner v. Anheuser-Busch,
Inc. (1994) 7 Cal.4th 1238, 1251.) As a general matter, there must be a
“continuous pattern” of “unusually aggravated” “adverse working conditions,” as
“isolated acts of misconduct are insufficient to support a constructive
discharge claim.” (Id. at p. 1247,
brackets and quotation marks omitted.)
Defendant argues that the conduct attributable to Free,
Marinelli, and Kite is too remote in time to support a claim for constructive
discharge. However, Plaintiff has created triable issues of fact that the
pre-2020 conduct, particularly of Kite, was linked to adverse actions within the
statutory period such as Plaintiff’s demotions and assignment to an apparently
dead-end project. Plaintiff has therefore created a triable issue of fact that
Defendants knowingly permitted Kite’s harassment to crystalize into adverse
actions that made Plaintiff’s working conditions so aggravated that Plaintiff
could not continue to work at Disney.
The Court therefore denies summary adjudication on this
claim.
“The elements of a prima facie case for the tort of
intentional infliction of emotional distress 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.
Conduct to be outrageous must be so extreme as to exceed all bounds of that usually
tolerated in a civilized community.” (Wilson
v. Hynek (2012) 207 Cal.App.4th 999, 1009, citation and ellipses omitted.) “Whether
a defendant’s conduct can reasonably be found to be outrageous is a question of
law that must initially be determined by the court; if reasonable persons may
differ, it is for the jury to determine whether the conduct was, in fact,
outrageous.” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 534.)
IIED has a 2-year statute of limitations. (Code Civ. Proc.,
§ 335.1; Pugliese v. Superior Court (2007) 146 Cal. App. 4th 1444,
1450.) Thus, actionable conduct must generally have occurred on or after
January 13, 2021.
The conduct that Plaintiff alleges in this time range
includes only Plaintiff’s demotion to director and the investigation which
concluded that Plaintiff’s complaints were unsubstantiated.
“Managing personnel is not outrageous conduct beyond the
bounds of human decency, but rather conduct essential to the welfare and
prosperity of society. A simple pleading of personnel management activity is
insufficient to support a claim of intentional infliction of emotional
distress, even if improper motivation is alleged. If personnel management
decisions are improperly motivated, the remedy is a suit against the employer
for discrimination.” (Janken v. GM Hughes Electronics (1996) 46
Cal.App.4th 55, 80.)
Thus, Defendants have carried their burden to show that
there is no triable issue that Plaintiff suffered outrageous conduct within the
statutory period. Plaintiff has not rebutted this showing by creating triable
issues that conduct within the statutory period was outrageous.
The Court therefore grants summary adjudication as to this
claim.
Punitive damages are appropriate when a defendant acted with
malice, oppression, or fraud. (Civ. Code, § 3294, subd. (a).) “Malice” is
defined as conduct intended to cause injury to a person or despicable conduct
carried on with a willful and conscious disregard for the rights or safety of
others. (Turman v. Turning Point of Cent.
Cal., Inc. (2010) 191 Cal.App.4th 53, 63.) “Oppression” means despicable
conduct subjecting a person to cruel and unjust hardship, in conscious
disregard of the person’s rights. (Ibid.)
“Fraud” is an intentional misrepresentation, deceit, or concealment of a
material fact known by defendant, with intent to deprive a person of property,
rights or otherwise cause injury. (Ibid.)
“An employer shall not be liable for damages pursuant to
subdivision (a), based upon acts of an employee of the employer, unless the
employer had advance knowledge of the unfitness of the employee and employed
him or her with a conscious disregard of the rights or safety of others or
authorized or ratified the wrongful conduct for which the damages are awarded
or was personally guilty of oppression, fraud, or malice. With respect to a
corporate employer, the advance knowledge and conscious disregard, authorization,
ratification or act of oppression, fraud, or malice must be on the part of an
officer, director, or managing agent of the corporation.” (Civ. Code, § 3294,
subd. (b).)
Courts have found oppressive behavior where a manager
engages in “a program of unwarranted criticism of [the] plaintiff's job
performance to justify [the] plaintiff's demotion.” (Stephens v. Coldwell
Banker Commercial Group, Inc. (1988) 199 Cal.App.3d 1394, 1403, overruled
on other grounds in White v. Ultramar, Inc. (1999) 21 Cal.4th 563, 574.)
In Stephens, “[the manager’s] criticism of [the] plaintiff's performance
had no factual justification and had the foreseeable effect of damaging
plaintiff's reputation as a property manager. Moreover, the demotion, when
accomplished, was common knowledge among [the] plaintiff's coworkers …, which
[the] defendant knew would subject [the] plaintiff to embarrassment. [The
plaintiff’s] discriminatory demotion also reduced [the] plaintiff's salary by
almost half. These actions were taken knowing that plaintiff had almost 30
years of management experience at the [job site] and he was competent to carry
out his job responsibilities.” (Id. at pp. 1403-1404.)
Here, Kite told Calia, without factual justification, that
Disney’s partner organizations did not like working with Plaintiff. Calia then
assigned Plaintiff to the ideation project without any assistance, a project
that was never used. Plaintiff was subsequently demoted again, and his bonus
was reduced by nearly 50 percent. Under these facts, a reasonable jury could
find that Defendants acted oppressively toward Plaintiff.
All of the actors in this case were high-level executives at
Disney. Kite was a Senior Vice President and managed multiple departments at
Disney. Calia replaced Kite in his position. There is thus a triable issue that
both were managing agents.
The Court therefore denies summary adjudication as to the
issue of punitive damages.