Judge: Joseph Lipner, Case: 24STCV26123, Date: 2025-05-08 Tentative Ruling

Case Number: 24STCV26123    Hearing Date: May 8, 2025    Dept: 72

SUPERIOR COURT OF CALIFORNIA

COUNTY OF LOS ANGELES

DEPARTMENT 72

TENTATIVE RULING

Defendants Riopharm USA, Inc. (“Riopharm”) and Tammy Nguyen (“Nguyen”) (collectively, “Defendants”) demur to the third claim for gender harassment in the Complaint filed by Plaintiff Melissa Michie (“Plaintiff”).

The Court OVERRULES the demurrer.

Background

This is an employment case.

Plaintiff lived at an apartment building owned and managed by Defendants. At the time, the building did not have an assigned manager. Because Plaintiff had experience in management, she would coordinate with Defendant’s corporate office in order to ensure that security, maintenance, cleaning, and upkeep responsibilities, which had been neglected, were carried out.

On October 13, 2021, Nguyen sent an email to Plaintiff thanking her for her help running the apartment complex. Nguyen told Plaintiff about a job opening for a building manager at another apartment complex owned by Riopharm and asked Plaintiff to send her resume.

Plaintiff thereafter submitted her resume to Defendants.

On October 18, 2021, Nguyen told Plaintiff that Nguyen’s boss had told Nguyen to let Plaintiff know that Plaintiff’s resume was impressive, but that he would keep the resume in the file for the future. Nguyen told Plaintiff that Defendants would contact Plaintiff if they needed a female manager, but that Nguyen’s boss was looking for a male manager who could do general repair too.

Plaintiff filed this action on October 8, 2024, raising claims for (1) discrimination on the basis of gender; (2) discrimination on the basis of gender – refusal to hire; (3) harassment on the basis of gender; and (4) failure to prevent discrimination, harassment, and retaliation.

On March 7, 2025, Defendants demurred to the Complaint. Plaintiff filed an opposition. Defendants did not file a reply.

Discussion

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 cannot sustain a claim for harassment because she was never employed by Defendants.

            “It is an unlawful employment practice …. (j)(1) [f]or an employer … because of … sex, gender, gender identity, [or] gender expression … to harass an employee, an applicant, an unpaid intern or volunteer, or a person providing services pursuant to a contract.” (Gov. Code, § 12940 [emphasis added].)

            Plaintiff applied for a job at Riopharm and was therefore an applicant. Because Plaintiff provided services for free in helping manage the building where she lived, it is likely that Plaintiff was also a volunteer.

            Thus, the fact that Defendants did not employ Plaintiff is not a basis to sustain the demurrer.

            The Court overrules the demurrer.