Judge: Kevin C. Brazile, Case: 20STCV33765, Date: 2022-09-28 Tentative Ruling

Hearing Date: September 28, 2022

Case Name: Veal v. California Department of Veteran Affairs, et al.

Case No.: 20STCV25207 

Matter: Motion for Reconsideration 

Moving Party: Plaintiff La’Terra Veal

Responding Party: Defendants California Department of Veterans Affairs, Elvie Ancheta, 

Jill Dale, and Agnieszka Sibbitt

Notice: OK

Ruling: The Motion for Reconsideration is denied.

Moving party to give notice.

If counsel do not submit on the tentative, they are strongly 

encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic. 

On April 6, 2021, Plaintiff La’Terra Veal filed the operative Third Amended Complaint against Defendants California Department of Veterans Affairs (“CalVet”), Elvie Ancheta, Jill Dale, and Agnieszka Sibbitt for (1) FEHA harassment, (2) FEHA race discriminaiton, (3) FEHA failure to prevent harassment and discrimination, (4) FEHA retaliation, (5) whistleblower retaliation, (6) intentional infliction of emotional distress (“IIED”), and (7) negligent infliction of emotional distress (“NIED”).  Plaintiff was a nurse at Defendants’ assisted living facility and, among other things, alleges she was subject to harassment by residents/patients and was then terminated for making complaints about such misconduct.  

On June 23, 2022, the Court entered summary judgment as to the individual Defendants and summarily adjudicated the sixth and seventh causes of action against CalVet.  The ruling as to the individual Defendants was primarily based on the fact that Plaintiff only presented evidence of personnel management, which alone was insufficient to establish harassment or extreme and outrageous conduct for an IIED claim.  

Plaintiff now seeks reconsideration of the summary judgment ruling with respect to Defendant Sibbitt, who was Plaintiff’s supervisor.  Specifically, Plaintiff contends that after now taking Sibbitt’s deposition, it was learned that, “Sibbitt . . . pretextually ‘investigate[d]’ Plaintiff for theft of narcotic medication. Sibbitt spoke with two nurses who handled the missing medication, but did not speak with Plaintiff or review medication logs. Sibbitt then reported to EEO investigator Jill Dale that Plaintiff was the primary suspect in a police investigation of the theft (there is no evidence of any such investigation). Sibbitt described Plaintiff as aggressive, quick to anger, and manipulative. . . . Sibbitt’s fabrications were extreme and outrageous conduct, sent a pervasive message of discriminatory bias that altered Plaintiff’s working conditions, and exceeded the scope of Sibbitt’s employment.”  Plaintiff seems to contend this conduct constitutes actionable harassment because “tracking and investigating missing narcotics were not even included in Sibbitt’s official job duties, and were outside the scope of her employment.”

Code Civ. Proc. § 1008(a) provides, “When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.”

Respectfully, the “new” evidence presented does not change the Court’s conclusion as it again relates to conduct akin to personnel management.  Even if investigating Plaintiff was not a specific part of Sibbitt’s work duties, it is again an activity conducted for business purposes and  would, therefore, be subject to a discrimination claim—not a claim for harassment.  (Janken v. GM Hughes Elecs. (1996) 46 Cal.App.4th 55, 65; Roby v. McKesson Corp. (2009) 47 Cal.4th 686.)

Thus, the Motion for Reconsideration is denied.

Moving Party to give notice.

If counsel do not submit on the tentative, they are strongly encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic.