Judge: Maurice A. Leiter, Case: 23STCV08570, Date: 2025-04-02 Tentative Ruling

Case Number: 23STCV08570    Hearing Date: April 2, 2025    Dept: 54

Hearing Date: April 2, 2025

Department 54, Judge Maurice Leiter

(2) Motions for Summary Adjudication

Moving Party: Defendants SSA Terminals, LLC and Richard Lomeli

Responding Party: Plaintiffs Tracy Hark and Al Waller

T/R:     DEFENDANTS’ MOTIONS FOR SUMMARY ADJUDICATION ARE DENIED.

DEFENDANTS TO NOTICE.

If the parties wish to submit on the tentative, please email the courtroom at SMCdept54@lacourt.org with notice to opposing counsel (or self-represented party) before 8:00 am on the day of the hearing.

The Court considers the moving papers, opposition, and reply.

BACKGROUND

On May 11, 2023, Plaintiffs Tracy Hark and Al Waller filed the operative first amended complaint against Defendants, asserting causes of action for (1) harassment; (2) failure to prevent harassment and/or discrimination; and (3) negligent hiring, supervision, and retention. Plaintiffs allege they were subjected to racial harassment and discrimination while employed by Defendants.

ANALYSIS

“A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (CCP § 437c(f)(1).)

A. Defendant SSA Terminal’s Motion for Summary Adjudication

SSAT moves for summary adjudication of Plaintiff’s claim for punitive damages on the ground that no SSAT officer, director, or managing agent authorized or ratified any of the wrongful conduct at issue in this action.

California Civil Code section 3294 authorizes the recovery of punitive damages in non-contract cases where “the defendant has been guilty of oppression, fraud, or malice . . . .” (Civ. Code § 3294(a).) Punitive damages thus require more than the mere commission of a tort. (See Taylor v. Superior Court (1979) 24 Cal.3d 890, 894-95.) When the defendant is a corporation, “the oppression, fraud, or malice must be perpetrated, authorized, or knowingly ratified by an officer, director, or managing agent of the corporation.” (Wilson v. Southern California Edison Company (2015) 234 Cal.App.4th 123, 164; see Civ. Code § 3294(b).)

Plaintiff Hark alleges that on August 8, 2020, Defendant Richard Lomeli kicked Plaintiff in the back of the leg, When confronted by Plaintiff, Lomeli responded with a racial slur directed at Plaintiff. SSAT argues that Lomeli was not an officer, director, or managing agent of SSAT. Instead, Lomeli was employed as a union “walking boss” and remained a union member. According to SSAT, “per the National Labor Relations Act (“NLRA”), he could not even hold a “supervisory” role at the company by law.” SSAT represents that Lomeli’s “main responsibility was to serve as the team lead for the small cadre of ILWU longshore workers assigned to him during his shifts (resulting in a very narrow and constrained set of duties), with no evidence existing that his duties included those that would amount to ones handled at a company’s executive level.”

SSAT asserts that no other director, officer or managing agent ratified Lomeli’s conduct, as evidenced by SSAT’s anti-harassment policies and its immediate corrective action against Lomeli, terminating his position immediately after the August 8, 2020 incident.

SSAT also argues that it did not have any prior knowledge of any racially-related conduct on the part of Lomeli. SSAT alludes to a “2018 McCormick Incident” in which another SSAT employee Rashaud McCormick accused Lomeli of using “inappropriate race-related language towards” McCormick. SSAT asserts that this does not show prior knowledge because SSAT investigated the 2018 McCormick Incident and found that Lomeli’s language was not race related.

In opposition, Plaintiff presents evidence showing that McCormick filed a six-page complaint detailing Lomeli’s extensive and frequent use of racial slurs. Plaintiff also presents evidence showing that other employees heard Lomeli use racial slurs, and that Lomeli had several complaints of harassing conduct prior to the August 2020 incident. And Plaintiff represents that SSAT rehired Lomeli only four months after he was terminated for the August 2020 incident. This is sufficient to create a triable issue of fact as to whether SSAT authorized or ratified Lomeli’s conduct.

SSAT’s motion for summary adjudication is DENIED.

B. Defendant Lomeli’s Motion for Summary Adjudication

Defendant Lomeli moves for summary adjudication of Plaintiff Waller’s first cause of action for racial harassment.

The Fair Employment and Housing Act prohibition on harassment states: “It is an unlawful employment practice. . . .[f]or an employer, labor organization, employment agency, apprenticeship training program or any training program leading to employment, any other person, because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military veteran status, to harass an employee, an applicant, an unpaid intern or volunteer, or person providing services pursuant to a contract.” (Govt. Code, § 12940(j)(1).) A hostile work environment is a recognized form of harassment. To establish a hostile work environment, harassment must be so severe or pervasive as to alter the conditions of the victim’s employment and create an abusive working environment based on the protected characteristic. (See Hughes v. Pair (2009) 46 Cal.4th 1045, 1043.)

Gov. Code § 12923(b) provides, “[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.”

Plaintiffs allege that on February 20, 2022, Lomeli referred to Plaintiff Collins and another employee as “Heckle and Jeckle” – referencing a comedic pair of cartoon anthropomorphic magpies with black feathers and yellow beaks. Plaintiff alleges this comment was racially motivated as the cartoon characters “have been noted for exemplifying racial stereotypes of Black people.”

Lomeli asserts that this conduct cannot form the basis for racial harassment because Plaintiff cannot prove that the comment was racially motivated, and because the comment was an isolated incident that did not create a hostile working environment. In opposition, Plaintiff presents evidence showing Lomeli has made disparaging comments about Black people and used slurs to refer to Black people several times. Plaintiff also presents evidence showing he was severely offended and distressed by the comment, affecting his ability to work. This is sufficient to create a triable issue of fact as to harassment.

Lomeli’s motion for summary adjudication is DENIED.