Judge: Kristin S. Escalante , Case: 22STCV24594, Date: 2023-04-18 Tentative Ruling

Case Number: 22STCV24594    Hearing Date: April 18, 2023    Dept: 24

Motion for judgment on the pleadings by defendant Maria De Jesus Romero  as against certain causes of action in plaintiff’s First Amended Complaint.

The Motion for Judgment on the Pleadings is GRANTED IN PART and DENIED IN PART as follows: the court GRANTS judgment on the pleadings with 20 days leave to amend as to cause of action nine (Labor Code section 98.6), eleven (defamation), and twelve (defamation per se).  The court GRANTS judgment on the pleadings without leave to amend as to cause of action ten (Labor Code section 1102.5). The court denies judgment on the pleadings as to cause of action two (harassment).

Discussion

Defendant Maria de Jesus Romero (“Defendant”) moves for judgment on the pleadings on the grounds that the second (harassment), ninth (Labor Code 98.6 retaliation), tenth (Labor Code 1102.5 Retaliation), eleventh (defamation) and twelfth (defamation per se) causes of action in Plaintiff Maria Vasquez’s operative first amended complaint (“FAC”) do not state facts sufficient to state a cause of action against Defendant. (Notice of Mtn., at p. 2; Code Civ. Proc., §438, subd. (b)(1).)

By way of background, on January 31, 2023, Plaintiff filed suit against YHB Long Beach LLC dba Holiday Inn dba Staybridge suites Long Beach Airport (“Holiday Inn”), Intercontinental Hotel Group Resources, LLC (“Intercontinental”), L.A. Koreana, Inc. (“Koreana”), Defendant, and Javier Doe (“Javier”) (collectively “Defendants”). Plaintiff alleges in 1991 Holiday Inn, Intercontinental and Koreana (collectively “Employer Defendants”) hired her to work in the housekeeping/laundry department at the Holiday Inn in Long Beach (“Hotel”). In September 2021 Employer Defendants wrongfully terminated Plaintiff. From 1991 until her termination in 2021 Employer Defendants engaged in labor code violations including depriving Plaintiff of her meal periods, rest breaks, and overtime pay.

Specific the present motion by Defendant, Plaintiff alleges as follows: in August 2021 Employer Defendants hired Javier—a recent immigrant from Honduras. He immediately began making sexually charged comments to Plaintiff including repeated references to his penis. At some point Plaintiff’s supervisor asked her to photograph the workload one night to prepare for the following workday. Plaintiff inadvertently photographed Javier. When he became upset, she offered her phone to him so that he could delete the photo, but he refused. In retaliation for her photograph Javier made a false report to Plaintiff’s supervisor that she was sexually harassing him. Concurrently, Plaintiff reported to her supervisor that Javier might make a false complaint against her. Plaintiff also told supervisor Defendant about Javier’s inappropriate comments and Defendant ignored Plaintiff and state she did not want to hear about the issue. Later, Defendant supported Javier’s complaint and did not report that Plaintiff had complained to Defendant regarding Javier’s sexual harassment. Plaintiff alleges Defendant’s actions were motivated by bigotry or other personal motives.

Discussion

1. Cause of Action Two (Harassment)

To state a claim of harassment under FEHA, Plaintiff must show “(1) she is a member of a protected class; (2) she was subjected to unwelcome harassment; (3) the harassment was based on her protected status; (4) the harassment unreasonably interfered with her work performance by creating an intimidating, hostile, or offensive work environment; and (5) defendants are liable for the harassment.” (Galvan v. Dameron Hosp. Assn. (2019) 37 Cal.App.5th 549, 563.)

Plaintiff alleges Plaintiffs “age sex, gender, real or perceived medical condition, engagement in protected activities, and/or some combination of these protected characteristics” motivated Defendants conduct and harassment (FAC, ¶¶76, 99), the harassment was unwelcome (FAC, ¶98), the harassment was based on Plaintiff’s protected characteristic (FAC, ¶99), the harassment created a hostile work environment (FAC, ¶98), and defendants are liable (FAC, ¶¶95, 101.)

With regard to Defendant specifically, Plaintiff alleges she did not do anything about Plaintiff’s complaint (FAC, ¶¶62, 102), later supported Javier’s complaint without bringing up Plaintiff’s allegations (FAC, ¶66), and “engaged in harassing conduct against Plaintiff based on personal gratification, intentional meanness, bigotry, and/or other personal motives” (FAC, ¶67.)

The court finds Foil v. Doellstedt (1996) 50 Cal.App.4th 1318 instructive of whether these allegations against Defendant are sufficient to state a claim for harassment. In Foil, plaintiff employee brought a sexual harassment case against defendant employer, immediate supervisor, and second-tier supervisor. The allegations against the second-tier supervisor were based on the second-tier supervisor’s inaction when plaintiff complained that his immediate supervisor was sexually harassing him. In considering the second tier supervisor’s liability the court looked at the standard for aiding and abetting under the common law. (Id. at p. 1325.)

A party is liable for aiding and abetting in the commission of an intentional tort where they know the conduct is a breach of duty and gives “substantial assistance or encouragement to the other to so act. . . ” (Ibid.) The court found that “mere inaction by a nonharassing supervisor does not constitute aiding and abetting” for the purposes of imposing liability on an individual who aids and abets in the commission of an intentional tort. (Id. at pp. 1326-27.) Thus, plaintiff had not stated a harassment claim against the second-tier supervisor.

Here, Defendant argues the allegations amount to merely nonaction by Defendant and cannot supply the requisite harassment. However, the allegations are not just that Defendant did nothing, but that Defendant explicitly omitted important information as Defendants evaluated Javier’s complaint—namely that Plaintiff had also accused Javier of sexual harassment. (FAC, ¶66.) Plaintiff further alleges that Defendant omitted this information based on bigotry. (FAC, ¶67.) However, Plaintiff overstates the allegations in arguing in the briefing that she alleged Defendant “subsequently falsely accused Plaintiff of sexual harassment.” (Opp., at p. 4:20-24.) There is no such allegation in the complaint.

Accordingly, Plaintiff has stated a claim for harassment as to cause of action two.

2. Cause of Action Nine and Ten (Labor Code 98.6 Retaliation,)

Labor Code section 98.6 (“Section 98.6”) states

A person shall not discharge an employee or in any manner discriminate, retaliate, or take any adverse action against any employee or applicant for employment because the employee or applicant engaged in any conduct delineated in this chapter. . ., or because the employee . . . made a written or oral complaint that he or she is owed unpaid wages, . . . or because of the exercise by the employee or applicant for employment on behalf of himself, herself, or others of any rights afforded him or her.

(Lab. Code, § 98.6.) 

According to the allegations, Plaintiff bases her retaliation claim on Employer Defendants wrongful termination because Plaintiff lawfully complained about not being paid wages due to her. (FAC, ¶¶164.) She also alleges generally that “INDIVIDUAL DEFENDANTS” issued warnings after Plaintiff’s complaints. (FAC, ¶164) However, Plaintiff’s specific allegations against Defendant do not support this. First, Plaintiff does not allege Javier was a supervisor such that he could give Plaintiff a warning. She alleges he was a “houseman.” (FAC, ¶49.) Second, Plaintiff alleges it was Defendant’s human resources manager, Samuel Ruiz, who did not respond to her complaints, proposed terminating her, and eventually made the decision to terminate her. (FAC, ¶¶ 42, 44, 46, 60, 61, 63-65.) Third, Plaintiff does not allege that she ever discussed wage violations with Defendant, let alone that Defendant issued Plaintiff a warning after she reported wage violations. Instead, Plaintiff alleges she discussed Javier’s sexual harassment with Defendant. (FAC, ¶¶64, 66, 67.) Plaintiff alleges that Defendants’ retaliatory animus is demonstrated by the fact that Plaintiff’s termination occurred after she complained about sexual harassment, but again there are no specific allegations regarding Defendant’s involvement in the allegedly retaliatory termination. (FAC, ¶173) 

As Plaintiff’s retaliation claims are premised on conduct which—according to the allegations—did not include Defendant, Plaintiff has not stated a claim for Section 98.6 against Defendant. 

Separately Defendant argues Plaintiff may not bring a claim against Defendant individually under Section 98.6 and relies on Miklosy v. Regents of University of California (2008) 44 Cal.4th 876. In Miklosy, plaintiff former employees sued the defendant university and supervisors for retaliation in violation of the Whistleblower Act and wrongful termination in violation of public policy, among other claims. The court found that supervisors were not subject to Tameny wrongful termination actions. (Id. at p. 900.) The court reasoned only an employer is liable as it is the employer who breaches a generally duty imposed by law not to terminate an employment relationship for a reason that contravenes some fundamental public policy. (Ibid.) However, Miklosy did not deal with Section 98.6 or its specific language. To the extent Defendant also relies on Jones v. Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158, 1173 it is inapt for the same reason. Jones dealt with claims under Labor Code section 1102.5 (“Section 1102.5”) not Section 98.6. In Jones, the court conducted a comprehensive statutory and historical analysis of why a supervisor is not liable for a claim of retaliation under Labor Code Section 1102.5. There was no corresponding analysis of Section 98.6. Defendant has not sufficiently briefed why the reasoning in these code sections applies to Section 98.6. Accordingly, the court does not grant judgment on the pleadings on that ground. Nonetheless, as discussed, Plaintiff has not sufficiently plead Defendant’s liability under Section 98.6.

3. Cause of Action Ten (Labor Code 1102.5 Retaliation)

To state a claim for retaliation under Section 1102.5 Plaintiff must “demonstrate by a preponderance of the evidence that the employee’s protected whistleblowing was a contributing fact to an adverse employment action.” (Lawson v. PPG Architectural Finishes, Inc. (2022) 12 Cal.5th 703, 712 [internal quotations omitted]; see also Lab. Code, §1102.6.) However, Supervisors and coworkers may not be held personally liable for retaliation under FEHA. (See Jones v. Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158, 1173; see also A. Title VII and the California Fair Employment and Housing Act, Cal. Prac. Guide Employment Litigation Ch. 7-A; [§ 211] Liability of Supervisor to Coemployee., 3 Witkin, Summary 11th Agency § 211 (2022).) Plaintiff’s arguments to the contrary fail to address the clear holding in Jones regarding Section 1102.5.

Accordingly, Plaintiff may not bring a claim against Defendant for violations of Section 1102.5.

4. Causes of Action Eleven and Twelve (Defamation and Defamation Per Se)

“The elements of a defamation claim are (1) a publication that is (2) false, (3) defamatory, (4) unprivileged, and (5) has a natural tendency to injure or causes special damage. The defamatory statement must specifically refer to, or be of and concerning, the plaintiff.” (John Doe 2 v. Superior Ct. (2016) 1 Cal.App.5th 1300, 1312 [internal citations and quotations omitted].)

Plaintiff has not alleged a publication. Plaintiff alleges generally that Defendants—all of them—made false publications about her including that she violated company policy, sexually harassed Javier, and that she deserved writing warnings. (FAC, ¶181.) However, Plaintiff’s specific allegations against Defendant do not support a cause of action for defamation. Plaintiff alleges Javier made false accusations against her to Ruiz (FAC, ¶58), and later that Defendant “supported” Javier’s complaint. (FAC, ¶ 66) Plaintiff does not allege Defendant stated or wrote anything regarding Plaintiff to anyone else. On the contrary, Plaintiff alleges Defendant failed to disclose important information during the investigation. (FAC, 66.) The allegations are insufficient and Plaintiff has not stated a claim for Defamation or Defamation per se.