Judge: Joseph Lipner, Case: 23STCV15351, Date: 2023-12-19 Tentative Ruling

Case Number: 23STCV15351 Hearing Date: December 19, 2023 Dept: 72

SUPERIOR COURT OF CALIFORNIA

COUNTY OF LOS ANGELES

DEPARTMENT 72

TENTATIVE RULING

SHERRI SHEFFIELD,

Plaintiff,

CITY OF GARDENA, et al.,

Defendants.

Case No: 23STCV15351

Hearing Date: December 19, 2023

ADD-ON #3

Defendant City of Gardena (“Gardena”) demurs to the Complaint filed by Plaintiff Sherri Sheffield (“Plaintiff”).

The Court SUSTAINS Gardena’s demurrer WITH LEAVE TO AMEND on Plaintiff’s gender discrimination claim. Plaintiff may amend within 20 days.

The Court OVERRULES Gardena’s demurrer as to all other causes of action.

Background

The following facts are taken from the allegations in Plaintiff’s Complaint.

Plaintiff has been a bus driver who works for Gardena’s transportation department (“G-Trans”) for more than 20 years.

On September 19, 2022, Plaintiff went to the G-Trans dispatch window to meet with her supervisor, Donnie Harris. Harris asked Plaintiff to instead meet with him in the supervisor’s office.

Plaintiff went to enter the supervisor’s office, where she encountered Defendant Frazier Watts, a manager of the Training Department of G-Trans. Watts grabbed Plaintiff by her left arm, wrenching it and hurting her, and told her “you can’t come in.” Plaintiff called out and told Watts that he was hurting her. Watts responded, “so what?” Watts provided no subsequent explanation for the attack.

Plaintiff alleges that Gardena has known for years that Watts was a danger to the safety of female employees. Plaintiff alleges that there have been multiple complaints and even lawsuits filed against Watts and Gardena based on Watts’ mistreatment of women, including physical attacks. Plaintiff alleges that no adequate investigations or disciplinary actions have been instituted to curb Watts’ abuses or protect female employees who come into contact with Watts.

Plaintiff filed this action against Gardena and Watts on June 30, 2023, alleging (1) assault; (2) gender discrimination; (3) gender-based harassment; (4) failure to prevent harassment; (5) intentional infliction of emotional distress (“IIED”); and (6) negligence.

Gardena demurred to the Complaint on October 17, 2023. Plaintiff filed an Opposition and Gardena filed a Reply.

Legal Standard

As a general matter, in a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleading alone, and not the evidence or facts alleged.” (E-Fab, Inc. v. Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.) The court assumes the truth of the complaint’s properly pleaded or implied factual allegations. (Ibid.) The only issue a demurrer is concerned with is whether the complaint, as it stands, states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.)

Where a demurrer is sustained, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the plaintiff to show the court that a pleading can be amended successfully. (Ibid.; Lewis v. YouTube, LLC (2015) 244 Cal.App.4th 118, 226.) However, “[i]f there is any reasonable possibility that the plaintiff can state a good cause of action, it is error to sustain a demurrer without leave to amend.” (Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 245).

Discussion

Public Entity Immunity

“Except as otherwise provided by statute:

(a) A public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person.

(b) The liability of a public entity established by this part (commencing with Section 814) is subject to any immunity of the public entity provided by statute, including this part, and is subject to any defenses that would be available to the public entity if it were a private person.”

(Gov. Code, § 815.)

“A public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee or his personal representative.” (Gov. Code, § 815.2, subd. (a).)

Gardena argues that it has immunity from common law tort liability under section 815. As laid out in section 815.2, the test for whether immunity applies to an act by a public employee is whether the tortious act is caused within the scope of employment and would have given rise to liability against the employee. The Court analyzes scope of employment in this section and analyzes employee liability under each cause of action below.

“A willful, malicious, and even criminal act may fall within the scope of employment, but only if the act has a causal nexus to the employee's work.” (M.P. v. City of Sacramento (2009) 177 Cal.App.4th 121, 129 [internal quotations and citation omitted].) The act must therefore be “foreseeable” in the sense that “in the context of the particular enterprise, an employee's tortious conduct is not so unusual or startling that it would seem unfair to include the loss resulting from it among other costs of the employer's business.” (Ibid. [internal quotations, citations, and brackets omitted].) Conversely, an act falls outside of the scope of employment when it occurs outside of the work environment and occurs for strictly personal reasons rather than as a result of a work-related dispute. (M.P. v. City of Sacramento (2009) 177 Cal.App.4th 121, 133-134.)

In Carr v. Wm. C. Crowell Co. (1946) 28 Cal.2d 652, the court imposed respondeat superior liability where one employee threw a hammer at another during an argument. (Id. at pp. 654, 657.) The court explained that “[n]ot only did the altercation leading to the injury arise solely over the performance of [the tortfeasor’s] duties, but his entire association with plaintiff arose out of his employment on the building under construction. He had never seen plaintiff before the day preceding the accident and had never conversed with him before the dispute […]. He testified in addition that he was not angry with plaintiff before the dispute; that he had no personal grudge against him; and that he threw the hammer immediately, without “winding up,” on seeing [the inciting incident].” (Id. at p, 657.) The court therefore found that respondeat superior liability was appropriate.

Other courts have ruled similarly since Carr. (Flores v. AutoZone West, Inc. (2008) 161 Cal.App.4th 373, 380 [disagreements between employees leading to physical acts of aggression in retail store subject to respondeat superior]; Samantha B. v. Aurora Vista Del Mar, LLC (2022) 77 Cal.App.5th 85, 108 [sexual exploitation of psychiatric patients was a foreseeable hazard].)

In Mary M. v. City of Los Angeles (1991) 54 Cal.3d. 202, the California Supreme Court held that when a police officer on duty misuses his official authority by raping a woman who he has detained, the public entity that employs him can be held vicariously liable. (Id. at p. 221.) The Court explained that “[i]n view of the considerable power and authority that police officers possess, it is neither startling nor unexpected that on occasion an officer will misuse that authority by engaging in assaultive conduct. The precise circumstances of the assault need not be anticipated …. the risk of such tortious conduct is broadly incidental to the enterprise of law enforcement, and thus liability for such acts may appropriately be imposed on the employing public entity.” (Id. at 217-218.)

Here, the alleged assault happened at the work site during work hours and did arise out of a dispute over employment duties. Watts grabbed and wrenched Plaintiff’s arm when she attempted to enter the supervisor’s office and said “you can’t come in” after Plaintiff had been instructed to enter the office by her own supervisor. This was therefore a dispute over Plaintiff’s performance of her duties and whether she could enter a place that Watts believed to be off-limits to her. The act therefore arises out of the scope of Watt’s employment.

Thus, Plaintiff’s causes of action for assault, IIED, and negligence are not barred by section 815.

Worker’s Compensation Exclusivity

Gardena argues that Plaintiff’s claims for assault, IIED, and negligence are barred by workers’ compensation exclusivity.

“So long as the basic conditions of compensation are otherwise satisfied, and the employer's conduct neither contravenes fundamental public policy nor exceeds the risks inherent in the employment relationship, an employee's emotional distress injuries are subsumed under the exclusive remedy provisions of workers' compensation.” (Livitsanos v. Superior Court (1992) 2 Cal.4th 744, 754). However, where an employer’s actions do contravene fundamental public policy, California courts recognize that a traditional tort remedy is appropriate. (Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167, 177.)

Here, Watts’ alleged assault does exceed the risks inherent in Plaintiff’s employment relationship with Gardena. Plaintiff is a bus driver; normal risks could include traffic accidents and other mechanical dangers associated with operation of a bus but would not include assaults by fellow employees. Thus, Plaintiff’s claims are not preempted by workers’ compensation.

Assault – First Cause of Action

“The essential elements of a cause of action for assault are: (1) defendant acted with intent to cause harmful or offensive contact, or threatened to touch plaintiff in a harmful or offensive manner; (2) plaintiff reasonably believed [he or] she was about to be touched in a harmful or offensive manner or it reasonably appeared to plaintiff that defendant was about to carry out the threat; (3) plaintiff did not consent to defendant’s conduct; (4) plaintiff was harmed; and (5) defendant’s conduct was a substantial factor in causing plaintiff’s harm.” (So v. Shin (2013) 212 Cal.App.4th 652, 668-669.)

As discussed above, Plaintiff’s claim is not barred by Government Code section 815 nor by workers’ compensation. Gardena raises no other bases for demurrer. The Court therefore overrules the demurrer with respect to this cause of action.

Gender Discrimination – Second Cause of Action

A plaintiff alleging discrimination must allege “that (1) [she] was a member of a protected class, (2) [she] was qualified for the position he sought or was performing competently in the position he held, (3) [she] 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.)

Gardena argues that there was no adverse action, and that Plaintiff cannot show that any action occurred on the basis of her gender.

Here, Plaintiff has pled that Watts had a pattern of physically attacking women in the workplace. Plaintiff has further pled that Watts’ attack against her was motivated by Plaintiff’s gender. At the pleading stage, these factual allegations are enough to support an allegation that the attack she suffered was on the basis of gender.

However, Plaintiff has not adequately pled an adverse employment action.

An adverse employment action must “materially affect the terms and conditions of employment.” (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1036.) “[A]dverse treatment that is reasonably likely to impair a reasonable employee's job performance or prospects for advancement or promotion” can constitute an adverse action. (Id. at pp. 1054-1055.)

In Doe v. Department of Corrections & Rehabilitation (2019) 43 Cal.App.5th 721, 734, the plaintiff’s coworker criticized his work during an interrogation-like meeting, ordered a wellness check on him when he was out sick, suspected him of brining a cell phone into work, and assigned him the primary crisis person on the same day as his union meeting. (Id. at pp. 734-735.) The court explained that these were not adverse actions because they did not materially affect the terms, conditions or privileges of the plaintiff’s job and did not result in any sort of formal or informal discipline. (Id. at p. 735.) “FEHA prohibits discrimination based on an employee's disability or perceived disability, but it does not guarantee employees a stress-free working environment.” (Ibid. [internal quotations and citation omitted].)

While Watts’s grabbing of Plaintiff’s arm was an action adverse to Plaintiff, it was not an employment action because, like in Doe v. Department of Corrections & Rehabilitation, it was a single act that did not have any alleged long term effects on the terms and conditions of Plaintiff’s employment.

The Court sustains the demurrer with leave to amend on this cause of action.

Harassment – Third Cause of Action

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.)

Gardena argues that the Complaint fails to allege that the behavior Plaintiff was subjected to was pervasive or severe enough to create a hostile work environment. Gardena argues that Plaintiff has not alleged that any harassment she endured was based on her gender.

“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.” (Gov. Code § 12923.) Here, Plaintiff alleges that the single incident caused severe emotional distress. While Gardena may later attempt to show that the evidence is not adequate to support this allegation, Plaintiff has sufficiently alleged harassment at the pleading stage.

The Court overrules the demurrer on this cause of action.

Failure to Prevent Harassment – Fourth Cause of Action

Gardena argues that this cause of action falls as a matter of law because Plaintiff has not sufficiently alleged harassment. Because the Court finds that Plaintiff has sufficiently alleged harassment, the Court overrules the demurrer on this cause of action.

Intentional Infliction of Emotional Distress – Fifth Cause of Action

“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.)

Negligence – Sixth Cause of Action

In order to state a claim for negligence, Plaintiff must allege the elements of (1) “the existence of a legal duty of care,” (2) “breach of that duty,” and (3) “proximate cause resulting in an injury.” (McIntyre v. Colonies-Pacific, LLC (2014) 228 Cal.App.4th 664, 671.)