Judge: Joseph Lipner, Case: 24STCV23356, Date: 2025-02-27 Tentative Ruling

Case Number: 24STCV23356    Hearing Date: February 27, 2025    Dept: 72

SUPERIOR COURT OF CALIFORNIA

COUNTY OF LOS ANGELES

DEPARTMENT 72

TENTATIVE RULING

Defendant Roundabout Entertainment, Inc. (“Roundabout”) demurs to the first, second, third, fifth, sixth, seventh, and eighth claims in the Complaint file by Plaintiff Kristin Dycus (“Plaintiff”).

The Court SUSTAINS the demurrer to the second claim with leave to amend.  Plaintiff may amend within 20 days.

The Court OVERRULES the demurrer to the remaining claims.

Background

This is an employment case. The following facts are taken from the allegations of the Complaint, which the Court accepts as true for the purposes of the demurrer.

Plaintiff was employed with Roundabout, an entertainment company, beginning on August 22, 2022.

Plaintiff was initially hired as an “Account Coordinater”. Plaintiff’s work in this position involved coordinating with various departments to manage post-production projects for major broadcast and streaming networks.

On June 1, 2023, Plaintiff was transferred to the position of “Client Services Floater.” Plaintiff heard Defendant Dawn Clark (“Clark”), one of the owners of the company, complaining that she did not have enough help in her department and was overwhelmed. Plaintiff stated that she would come to work with Clark if she needed help. About 30 minutes later, Plaintiff received a call informing her that she was being transferred to Dawn Clark’s department in client services as a “Client Services Floater.” Plaintiff spoke to Clark about the position, because Client Service was mostly staffed with receptionist positions, which were more junior than Plaintiff’s position. Clark told Plaintiff that she was not being transferred to a receptionist position. Michael Domes (“Domes”), the head of HR, told Plaintiff that she could back to her prior position if the floater position was not to her liking.

Plaintiff’s job in Client Services was subsequently reclassified as a “receptionist” position.

In September 2023, Plaintiff spoke to Domes and asked to be transferred back to her Account Coordinator position. Domes told Plaintiff that there were no openings in Account Services and stated that Client Services could be difficult because “[t]he front desk is typically for younger people.” (Complaint ¶ 29.) Domes added that the Client Services position was “just entry level.” (Complaint ¶ 29.) Plaintiff later complained to Clark about Domes’s comment, and Clark agreed that the other Client Services employees were younger than Plaintiff. Plaintiff asked if there were any other types of leadership or management roles available for her in Client Services. Clark said “No.” (Complaint ¶ 29.)

Plaintiff’s husband was also employed by Defendant. Plaintiff’s husband was supervised by Defendant Greg Faust (“Faust”), the Vice President for Creative Operations. Plaintiff alleges that Faust sexually harassed her during her employment.

Plaintiff alleges that Faust repeatedly found excuses to be around Plaintiff and would regularly linger around her desk and attempt to engage her in non-work related conversations, despite the fact that they worked in different departments. Plaintiff alleges that, beginning around September 2023, Faust would enter Plaintiff’s office and stare at her until she engaged in non-work related conversation with him. During these conversations, Plaintiff alleges that Faust regularly looked at Plaintiff’s body in an inappropriate manner, making her uncomfortable. (Complaint ¶¶ 33, 39.)

Plaintiff also alleges that Faust made inappropriate comments about Plaintiff’s body. On one occasion in July or August 2023, Faust initiated a conversation with Plaintiff and said that he was having a hard time getting in shape due to his age. To be supportive, Plaintiff stated that she, too, should go to the gym more often. Plaintiff alleges that Faust then told Plaintiff: “You would be a knockout if you lost a few pounds.” (Complaint ¶ 34.)

Plaintiff alleges that, throughout her employment, she regularly heard Faust loudly comment on the bodies of female clients and state whether he found them physically attractive. (Complaint ¶ 36.)

Plaintiff alleges that she went out of her way to avoid Faust due to his conduct. Plaintiff alleges that her coworkers took to warning her if they say Faust walking toward her, saying “Greg [Faust] is coming” and warning her to leave the area. (Complaint ¶ 37.)

Plaintiff alleges that, in November 2023, while Plaintiff was speaking with a coworker near the front desk, Faust approached Plaintiff and joined the conversation. Plaintiff alleges that Faust put his arm around Plaintiff and kissed Plaintiff on her temple. (Complaint ¶ 40.) Plaintiff alleges that she was stunned and paralyzed with anxiety as a result of Faust’s actions. (Complaint ¶ 40.) Plaintiff alleges that Faust then remained next to her for another minute or two, during which time he placed his hand on her middle and upper back and rubbed her back. (Complaint ¶ 40.)

Plaintiff alleges that she suffered extreme distress and was physically shaking following the above interaction. Plaintiff alleges that a coworker who witnessed the touching and kissing, came up to her and stated: “Hey, so I don’t want to seem like an overprotective big brother or anything, but are you okay?” (Complaint ¶ 41.)

Plaintiff alleges that Faust’s conduct was known to Roundabout.

Plaintiff alleges that her meal and rest breaks were regularly interrupted by client visits and other work activities. Plaintiff alleges that she complained about these interruptions to Clark and Domes. Plaintiff alleges that Domes’s timekeeping staff manipulated Plaintiff's time records to make it look like she was taking compliant breaks.

Plaintiff alleges that Clark repeatedly threatened her job. For example, on one occasion when Plaintiff stood up from her desk to make copies, Plaintiff alleges that Clark said “I am going to have to take that office away.” (Complaint ¶ 48.) On another occasion, when Plaintiff stated that she was feeling sick and would have to go home, Clark threatened Plaintiff’s job and stated “Well, I’m here when I’m sick.” (Complaint ¶ 49.)

On January 11, 2024, Domes told Plaintiff that Plaintiff’s employment was being terminated.

Plaintiff filed this action on September 10, 2024, raising claims for (1) sexual harassment; (2) sex discrimination; (3) age harassment; (4) age discrimination; (5) retaliation; (6) failure to prevent harassment, discrimination, and retaliation; (7) negligent retention and supervision; (8) retaliation in violation of Labor Code, section 1102.5; (9) violation of Labor Code, section 98.6; (10) wrongful termination; (11) failure to provide meal and rest break periods; (12) failure to provide accurate itemized wage statements; (13) failure to provide minimum wages; (14) violation of Labor Code, sections 201-203; and (15) unfair competition.

On November 27, 2024, Roundabout demurred to the Complaint. On January 22, 2025, Roundabout filed an amended demurrer relating to the rescheduled hearing date. Plaintiff filed an opposition. Roundabout filed a reply.

Discussion

Sexual harassment – First Claim

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).)¿

“Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment” when they give rise to a hostile work environment or are part of a quid-pro-quo exchange. (29 C.F.R. § 1604.11; see Clark v. Claremont University Center (1992) 6 Cal.App.4th 639, 662 [“ ‘ … California courts have relied upon federal law to interpret analogous provisions of the state statute.’ [Citation.] ”].)

            Roundabout contends that Plaintiff has not alleged any actionable sexual conduct. The Court disagrees. (See, e.g., Complaint ¶¶ 33-41.) Plaintiff alleges that Faust stared at her body inappropriately, regularly commented loudly about whether he found the bodies of female clients attractive, told Plaintiff that she would be “a knockout” if she lost weight, and put his arm around her, rubbed her back, and kissed her without her consent. Plaintiff has alleged that this conduct not only caused her severe distress, but prompted a number of her coworkers to comment on Faust’s behavior to her on various occasions.

             “Harassment of an employee … by an employee, other than an agent or supervisor, shall be unlawful if the entity, or its agents or supervisors, knows or should have known of this conduct and fails to take immediate and appropriate corrective action.” (Gov. Code, § 12940, subd. (j)(1).) Roundabout contends that, pursuant to the above subsection, it is not liable for harassment because Faust did not supervise Plaintiff and Plaintiff did not report the harassment to Roundabout or its agents or supervisors. This contention is meritless. The harassing employee need not be the plaintiff’s supervisor to remove the knowledge requirement – it is enough that the harassing employee be a supervisor at all. (Gov. Code, § 12940, subd. (j)(1).) Faust was the Vice President for Creative Operations and, incidentally, supervised Plaintiff’s husband. No actual or constructive knowledge of the harassment by Roundabout was necessary.

            The Court overrules the demurrer to this claim.

Sex discrimination – Second Claim

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 [they] 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.)

Roundabout argues that Plaintiff pleads no 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.) 

Plaintiff contends that she was pressured to take the receptionist role due to her sex. Plaintiff contends that her complaints were ignored due to her sex. These allegations may be sufficient, but are not clearly stated in the Complaint.

The Court sustains the demurrer to this claim with leave to amend.

Age harassment – Third Claim

Plaintiff has alleged that multiple supervisory employees (Clark and Domes) made negative comments about her age.

The Court overrules the demurrer to this claim.

Retaliation – Fifth 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.)

Plaintiff alleges that she complained about improper timekeeping. Plaintiff alleges that she complained to Clark about Domes’s comments about Plaintiff’s age, but that Clark agreed with Domes’s statements. Plaintiff alleges that she was terminated due, in part, to her complaints.

Roundabout argues that Plaintiff’s termination is temporally separated from the age complaints but makes no effort to address the timekeeping complaints.

Plaintiff has stated a claim for retaliation.

The Court overrules the demurrer to this claim.

Failure to prevent harassment, discrimination, and retaliation – Sixth 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.)

Roundabout contends that this claim fails because Plaintiff has not alleged harassment. As discussed above, the Court disagrees.

The Court overrules the demurrer to this claim.

Negligent retention and supervision – Seventh Claim

The elements of a cause of action for negligent hiring, retention, or supervision are: (1) the employer’s hiring, retaining, or supervising an employee; (2) the employee was incompetent or unfit; (3) the employer had reason to believe undue risk of harm would exist because of the employment; and (4) harm occurs. (Evan F. v. Hughson United Methodist Church (1992) 8 Cal.App.4th 828, 836-837.)

Roundabout argues that Plaintiff’s claim is subject to workers’ compensation exclusivity. That is not the law. “Liability for negligent hiring and supervision is based upon the reasoning that if an enterprise hires individuals with characteristics which might pose a danger to customers or other employees, the enterprise should bear the loss caused by the wrongdoing of its incompetent or unfit employees. The tort has developed in California in factual settings where the plaintiff's injury occurred in the workplace, or the contact between the plaintiff and the employee was generated by the employment relationship.” (Mendoza v. City of Los Angeles (1998) 66 Cal.App.4th 1333, 1339–1340 [emphasis added].)

The Court overrules the demurrer to this claim.

Retaliation under Labor Code, section 1102.5 – Eighth Claim

The Labor Code’s whistleblower provision prohibits an employer from retaliating against an employee who reports a violation of state or federal statute or a local, state or federal rule or regulation or who refuses to participate in any activity that would result in a violation of law. (Lab. Code, § 1102.5.) To prevail on whistleblower retaliation claim, a plaintiff must establish that their alleged protected activated was a contributing factor in the adverse action taken against them. (Lab. Code, § 1102.5.)

Section 1102.5 “imposes a requirement of objective reasonableness and excludes from whistleblower protection disclosures that involve only disagreements over discretionary decisions, policy choices, interpersonal dynamics, or other nonactionable issues. Moreover, an employer accused of retaliation in violation of section 1102.5(b) can rebut the charge by ‘demonstrat[ing] by clear and convincing evidence that the alleged [retaliatory] action would have occurred for legitimate, independent reasons even if the employee had not engaged in activities protected by Section 1102.5.’ [Citation.]” (People ex rel. Garcia-Brower v. Kolla's, Inc. (2023) 14 Cal.5th 719, 734.)

As discussed above, Plaintiff has adequately alleged retaliation for reporting violations of wage laws against her.

The Court overrules the demurrer to this claim.