Judge Michael Shultz, Case 21CMCV00075 2023-01-09 Tentative Ruling

[TENTATIVE] ORDER DENYING MOTION BY DEFENDANT, MALVIN MALLARI, FOR SUMMARY JUDGMENT, OR ALTERNATIVELY, FOR SUMMARY ADJUDICATION OF THE FIRST CAUSE OF ACTI

[TENTATIVE] ORDER DENYING MOTION BY DEFENDANT, COUNTY OF LOS ANGELES, FOR SUMMARY JUDGMENT, OR ALTERNATIVELY, FOR SUMMARY ADJUDICATION

The Second Amended Complaint (“SAC”) filed on November 12, 2021, alleges that Defendant, County of Los Angeles (“County”) employed Plaintiff and Defendant, Malvin Mallari (“Mallari”). Plaintiff alleges that Mallari made sexual advances toward Plaintiff and threatened to demote Plaintiff when she complained. The SAC alleges claims for hostile work environment (harassment) against both Defendants and failure to prevent harassment against Defendant County.

Defendant Mallari moves for summary judgment of the first cause of action for harassment on the basis that the claim is barred by the one-year statute of limitations. The last alleged harassing conduct occurred in May or June of 2019. Plaintiff last worked with Mallari on September 27, 2019. However, Plaintiff filed her administrative claim with the Department of Fair Employment and Housing (“DFEH”) more than one year of Defendant’s transfer. Defendant County joins in the motion.

Plaintiff argues that the three-year statute of limitations applies to the alleged claims. Plaintiff’s claims did not lapse before January 1, 2020. Alternatively, the three-year statute of limitations applies because the last act of sexual harassment occurred on April 17, 2021. Plaintiff contends that Mallari was a supervisor and is individually liable for sexual harassment.

Defendant reiterates that Plaintiff’s claims accrued as of September 27, 2019, at the latest. The statute begins to run when a party knows or should have known of facts essential to the claim. Plaintiff made an internal complaint on November 6, 2019. Therefore, Plaintiff was required to file a DFEH claim by November 6, 2020. However, Plaintiff presented her administrative claim on March 3, 2021. Since Plaintiff was aware of these facts, the three-year statute of limitations does not apply.

Summary judgment is proper “if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Code Civ. Proc. §437c subd. (c). In pertinent part, a party may move for summary adjudication as to one or more causes of action or one or more affirmative defenses if that party contends that there is no merit to the claim or affirmative defense. Code Civ. Proc., § 437c subd. (f)(1). 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.” Id.

Where a defendant seeks summary judgment or adjudication, defendant must show that either “one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action.” Id. at §437c subd. (p)(2). Once the defendant meets this burden, the burden shifts to the plaintiff to show that a “triable issue of one or more material facts exists as to that cause of action or defense thereto.” Id.

Until the moving party has discharged its burden of proof, the opposing party has no burden to come forward with any evidence. Once the moving party has discharged its burden as to a particular claim, however, the opposing party may defeat the motion by producing evidence showing that a triable issue of one or more material facts exists as to that cause of action. Code Civ. Proc., § 437c subd. (p)(2).

The court strictly construes the moving party's supporting evidence while the opposing party’s evidence is liberally construed. Doubts as to the propriety of the motion should be resolved against granting the motion. D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 20. The court does not evaluate the credibility of testimony. Binder v. Aetna Life Ins. Co. (1999) 75 Cal. App. 4th 832, 840.

The court applies the three-step analysis to motions for summary judgment or adjudication: (1) identify the issues framed by the pleading, (2) determine whether the moving party established facts which negate the opponents’ claim, (3) if a defendant meets its threshold burden of persuasion and the burden shifts, determine whether the opposing party has controverted those facts with admissible evidence. Torres v. Reardon (1992) 3 Cal.App.4th 831, 836.

The undisputed facts establish that Plaintiff works for the County as a patient financial services worker at Harbor UCLA Medical Center (UF 1-2). Mallari last supervised Plaintiff and was last in her chain of command on September 27, 2019 (UF 4). Plaintiff alleges several instances of sexual harassment by Mallari, including physical touching, UF 15-16. Plaintiff filed her DFEH claim on March 3, 2021 (UF 17).

Defendant argues that since he was transferred to another location in September 2019, the 2019 version of Government Code section 12960 applies, requiring Plaintiff to exhaust administrative remedies by filing a claim with DFEH within one year from the date of occurrence. Gov. Code, § 12960 subd. (d [eff. 1/1/18 to 12/31/19]. Plaintiff does not dispute that she filed her DFEH claim on March 3, 2021 and received an immediate right to sue letter on that date. (UF 17, Defendant’s Ex. B). However, Plaintiff disputes the date of accrual, claiming that on April 17, 2020, Mallari intimidated her when he drove into the parking lot of Plaintiff’s office location (“the parking lot incident”). Plaintiff testified that a co-worker (Denise Humphrey) witnessed Defendant in the parking lot, and Defendant made eye contact with her and “gave her a smirk.”) Plaintiff’s Ex. B, 13-19. Plaintiff was informed by Constance Beverly, who had called Plaintiff into her office to tell Plaintiff that Ms. Beverly and Ms. Humphrey had just stopped Defendant in the parking lot. Plaintiff informed her that she did not feel safe since Defendant was no longer at the same department and had been transferred “miles and miles away” to a different facility. Plaintiff’s Ex. B, 378:7-25.

Defendant argues that the “final act of sexual harassment” occurred in May or June of 2019 or at the latest September 27, 2019, when Plaintiff no longer worked with Defendant. Motion 8:23-26. However, sexually harassing conduct need not be motivated by sexual desire. Gov. Code, § 12940 subd. (j)(4)(C). It consists of conduct “outside the scope of necessary job performance, conduct presumably engaged in for personal gratification, because of meanness or bigotry, or for other personal motives. Harassment is not conduct of a type necessary for management of the employer's business or performance of the supervisory employee's job." Reno v. Baird (1998) 18 Cal.4th 640, 645–646.

Defendant contends that the harassment acquired a “degree of permanence” by September 2019, when Defendant was transferred. “Permanence” is relevant to determine whether the “continuing violations doctrine” applies, and therefore, at what point a claim accrues. It is an exception to the general rule that a claim accrues on the date of the last element essential to a cause of action. Willis v. City of Carlsbad (2020) 48 Cal.App.5th 1104, 1124. The doctrine “aggregates a series of wrongs or injuries for purposes of the statute of limitations, treating the limitations period as accruing for all of them upon commission or sufferance of the last of them.” Willis v. City of Carlsbad (2020) 48 Cal.App.5th 1104, 1124

“an employer is liable for actions that take place outside the limitations period if these actions are sufficiently linked to unlawful conduct that occurred within the limitations period. Put another way, the continuing violation doctrine provides a way for employees to escape the effects of the statute of limitations and reach back in time to base liability on earlier acts. It doesn't provide employers a way to expand the scope of the statute of limitations to reach forward to bar claims based on acts within the statutory period." Blue Fountain Pools and Spas Inc. v. Superior Court of San Bernardino County (2020) 53 Cal.App.5th 239, 250.

Defendant appears to argue that the April 17, 2020 parking lot incident should not be considered part of the harassing conduct because September 2019 was the “last possible date of an interaction in the workplace between Plaintiff and Mallari since he was transferred as of that date.” Reply, 2:13-14. That contention is disputed by Plaintiff’s evidence, confirmed by a witness, Ms. Humphrey, and conveyed to her supervisors, Ms. Beverly and Frank Albert, that Defendant was in the parking lot of the facility he was transferred from and “wasn’t allowed to come on the premises.” Plaintiff’s Ex. I, Humphrey Deposition, 7:2-3.

Defendant further argues that the parking lot incident was not “sufficiently similar in kind” to the prior misconduct which involved touching and sexual activity. Reply 5:11-12. However, the parking lot incident cannot be considered in isolation. The existence of a hostile work environment depends on the totality of circumstances. Hughes v. Pair (2009) 46 Cal.4^th 1035, 1044. To be actionable, a sexually objectionable environment must be both objectively and subjectively offensive; therefore, “a plaintiff who subjectively perceives the workplace as hostile or abusive will not prevail ... if a reasonable person ... considering all the circumstances, would not share the same perception.” Id. As noted previously, similar kinds of unlawful employer conduct, such as acts of harassment “may take a number of different forms.” Richards at 823.

Defendant has not established, based on the undisputed facts, that the last act of harassment occurred on the date of Defendant’s transfer in September of 2019. The date of accrual of Plaintiff’s claim is a triable issue of fact (Disputed Fact 5). The date that Plaintiff “last worked” with Defendant is not dispositive of when Plaintiff’s claim accrued (Disputed fact 17).

Since the date of accrual is disputed, whether Plaintiff is entitled to application of the three-year statute of limitations included in the January 2020 version of Government Code section 12960 cannot be determined. That version provides that (subject to certain exceptions not applicable here) a complaint alleging a violation of section 12940 (prohibiting discrimination and harassment) "shall not be filed after the expiration of three years from the date upon which the unlawful practice or refusal to cooperate occurred.” Gov. Code, § 12960. Therefore, whether the one-year or three-year statute of limitations applies cannot be determined based on the material facts asserted.

Defendant has not met his burden of showing that he is entitled to judgment in his favor based on the material facts asserted, some of which remain controverted. Code Civ. Proc., § 437c(p)(2). Accordingly, Defendant’s Motion for Summary Judgment, or Alternatively, for Summary Adjudication is DENIED.

[TENTATIVE] ORDER DENYING MOTION BY DEFENDANT, COUNTY OF LOS ANGELES, FOR SUMMARY JUDGMENT, OR ALTERNATIVELY, FOR SUMMARY ADJUDICATION

Defendant County moves for summary judgment, or alternatively, adjudication of the second cause of action for harassment and the third cause of action for failure to prevent harassment on the basis that both claims are barred by the one-year statute of limitations in effect in 2019, when the last act of harassment occurred. At that point, the alleged harassment acquired permanence. Plaintiff last worked with Mr. Mallari on September 27, 2019. Plaintiff did not allege any incidents of sexual harassment after May/June 2019. Plaintiff filed her administrative claim with the Department of Fair Employment and Housing (“DFEH”) on March 3, 2021, more than one year after Mr. Mallari’s transfer.

Plaintiff argues that her claims did not lapse before January 1, 2020, because the three-year statute of limitations applies under the 2020 version of the statute. The last act of sexual harassment occurred on April 17, 2020, when Defendant Mr. Mallari drove into the parking lot where Plaintiff worked after he had been transferred to a different facility. Plaintiff contends that Mr. Mallari was a supervisor and individually liable for sexual harassment. County is liable for Mr. Mallari’s misconduct and independently liable for failing to prevent that harassment.

County argues that the last alleged harassment took place in May 2019. Plaintiff presented her administrative claim to DFEH on March 3, 2021, which is also not disputed. There is no claim for failure to prevent harassment since there is no viable claim for sexual harassment.

The undisputed facts establish that Plaintiff works for the County as a patient financial services worker at Harbor UCLA Medical Center (UF 1-2). Mr. Mallari last supervised Plaintiff and was last in her chain of command on September 27, 2019, at which point Mr. Mallari was transferred to another hospital (UF 4, 6). Plaintiff alleges several instances of sexual harassment by Mr. Mallari, including physical touching (UF 15). The last time Defendant touched Plaintiff was May/June 2019. (UF 16). Plaintiff filed her DFEH claim on March 3, 2021, nearly two years after last working with Mr. Mallari (UF 18).

As applicable here, it is unlawful for an employer or any other person to harass an employee because of sex or gender. Gov. Code, § 12940 subd. (j)(1). “Harassment because of sex” includes sexual harassment, gender harassment, and harassment based on pregnancy, childbirth, or related medical conditions. The SAC alleges the “sexual harassment continued until September 2019, when Mr. Mallari was transferred to another hospital because of a complaint from another employee.” SAC ¶ 10. County argues that since the last alleged instance of misconduct occurred in 2019, the one-year statute of limitations under the 2019 version of the applicable statute applies. Plaintiff was required to exhaust administrative remedies by filing a claim with DFEH within one year from the date of occurrence, which Plaintiff did not do. Gov. Code, § 12960 subd. (d) [eff. 1/1/18 to 12/31/19].

Plaintiff does not dispute that she filed her DFEH claim on March 3, 2021, (UF 18, County’s Ex. V). However, Plaintiff disputes the date of accrual, claiming that on April 17, 2020, Mr. Mallari intimidated her when he drove into the parking lot where Plaintiff’s office was located (“the parking lot incident”) although he had been previously transferred.

Plaintiff testified that a co-worker (Denise Humphrey) witnessed Mr. Mallari in the parking lot, and Mr. Mallari made eye contact with her and “gave her a smirk.”) Plaintiff’s Exhs. B, I, and J. Plaintiff was informed by Constance Beverly, who had called Plaintiff into her office to tell Plaintiff that Ms. Beverly and Ms. Humphrey had just stopped Defendant in the parking lot. Plaintiff informed her that she did not feel safe since Defendant was no longer at the same department and had been transferred “miles and miles away” to a different facility. Plaintiff’s Ex. B, 378:7-25.

County argues that the “final act of sexual harassment” occurred in May or June of 2019, which was the date Mr. Mallari last “touched” her (UF 16). However, sexually harassing conduct need not be motivated by sexual desire. Gov. Code, § 12940 subd. (j)(4)(C). It consists of conduct “outside the scope of necessary job performance, conduct presumably engaged in for personal gratification, because of meanness or bigotry, or for other personal motives. Harassment is not conduct of a type necessary for management of the employer's business or performance of the supervisory employee's job." Reno v. Baird (1998) 18 Cal.4th 640, 645–646.

County contends that the harassment acquired a “degree of permanence” by September 2019, when Defendant was transferred. “Permanence” is relevant to determine whether the “continuing violations doctrine” applies, and therefore, at what point a claim accrues. It is an exception to the general rule that a claim accrues on the date of the last element essential to a cause of action. Willis v. City of Carlsbad (2020) 48 Cal.App.5th 1104, 1124. The doctrine “aggregates a series of wrongs or injuries for purposes of the statute of limitations, treating the limitations period as accruing for all of them upon commission or sufferance of the last of them.” Willis v. City of Carlsbad (2020) 48 Cal.App.5th 1104, 1124

A failure to eliminate a hostile work environment is a continuing violation if the employer’s unlawful actions are “(1) sufficiently similar in kind—recognizing, as this case illustrates, that similar kinds of unlawful employer conduct, such as acts of harassment … may take a number of different forms (see Fielder v. UAL Corp., supra, 218 F.3d at pp. 987–988.); (2) have occurred with reasonable frequency; (3) and have not acquired a degree of permanence.” Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, 823. “Permanence” means “that an employer's statements and actions make clear to a reasonable employee that any further efforts at informal conciliation to obtain reasonable accommodation or end harassment will be futile." Richards at 823. County addresses only the element of “permanence.”

County argues that the April 17, 2020 parking lot incident should not be considered part of the harassing conduct because Plaintiff did not have “contact” with Mr. Mallari at that time. Reply 3:4-6. However, the parking lot incident cannot be considered in isolation. The existence of a hostile work environment depends on the totality of circumstances. Hughes v. Pair (2009) 46 Cal.4^th 1035, 1044. To be actionable, a sexually objectionable environment must be both objectively and subjectively offensive; therefore, “a plaintiff who subjectively perceives the workplace as hostile or abusive will not prevail ... if a reasonable person ... considering all the circumstances, would not share the same perception.” Id.

County has not established, based on the undisputed facts, that the last act of harassment occurred on the date of Mr. Mallari’s transfer in September of 2019. The date of accrual of Plaintiff’s claim is a triable issue of fact (Disputed Fact 5). The date that Defendant last “touched” Plaintiff is not dispositive of when Plaintiff’s claim accrued (Disputed Fact 16). As noted previously, similar kinds of unlawful employer conduct, such as acts of harassment “may take a number of different forms.” Richards at 823.

Since the date of accrual is disputed, whether Plaintiff is entitled to application of the three-year statute of limitations set forth in the January 2020 version of Government Code section 12960 cannot be determined. That version provides that (subject to certain exceptions not applicable here) a complaint alleging a violation of section 12940 (prohibiting discrimination and harassment) "shall not be filed after the expiration of three years from the date upon which the unlawful practice or refusal to cooperate occurred.” Gov. Code, § 12960. Therefore, whether the one-year or three-year statute of limitations applies cannot be determined based on the material facts asserted.

Liability is imposed against an employer for failing to take immediate and corrective action if the employer knows or should have known of the harassing conduct. Gov. Code, § 12940 subd. (j)(1). County argues that it is not liable for any harassment since Plaintiff’s harassment claim is barred. County relies on the same material facts, renumbered as Facts 20 through 38. Since the date of the accrual of Plaintiff’s cause of action depends on facts that remain in dispute, this claim cannot be adjudicated in County’s favor. Fact 24. Even if there is no dispute that Mr. Mallari last supervised Plaintiff on September 27, 2019 (UF 23, 25), or that the last time Mr. Mallari touched Plaintiff was May or June of 2019, Plaintiff’s evidence of the parking lot incident disputes the claim that the harassing conduct acquired permanence in 2019.

County has not met its burden of showing that it is entitled to judgment or adjudication in its favor of the second and third causes of action based on the material facts asserted, some of which remain controverted. Code Civ. Proc., § 437c(p)(2). Accordingly, County’s Motion for Summary Judgment, or Alternatively, for Summary Adjudication is DENIED.