Judge Robert C. Longstreth, Case 37-2020-00008514-CU-BC-CTL 2023-11-17 Tentative Ruling

Judge: Robert C. Longstreth, Case: 37-2020-00008514-CU-BC-CTL, Date: 2023-11-17 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - November 16, 2023

11/17/2023 08:30:00 AM C-65 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Robert Longstreth

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Civil - Unlimited Breach of Contract/Warranty Summary Judgment / Summary Adjudication (Civil) 37-2020-00008514-CU-BC-CTL BAINBRIDGE CAPITAL INC VS VOLT MANAGEMENT CORP [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion for Summary Judgment and/or Adjudication, 04/18/2022

Cross-Defendant Nick Chini's Motion for Summary Judgment, or in the Alternative Motion for Summary Adjudication of Issues, is DENIED. (ROA 326.) Chini seeks summary judgment, or alternatively summary adjudication, as to Cross-Complainant Carissa Clark's Cross-Complaint.

As a preliminary matter, the court notes that Chini's notice of motion includes eight separate issues to be adjudicated, but that Chini's separate statement of undisputed material facts fails to separately set forth the facts that support each issue to be adjudicated. A separate statement must 'separately identify' 1) each issue to be adjudicated and 2) the supporting material facts as to each issue to be adjudicated.

(Cal. R. Court, rule 3.1350(d)(1); see also subd. (h).) Chini's separate statement is procedurally defective in that it fails to comply with these rules and identifies only 'Facts Applicable to All Issues.' As a result, Chini contends all the stated facts are material to every identified issue, effectively rendering the purported motion for summary adjudication indistinguishable from a motion for summary judgment.

The court has considered each issue for adjudication, and finds Chini is not entitled to adjudication on any of the issues, nor is he entitled to summary judgment.

Fifth Cause of Action – Sexual Harassment (MSA Issue No. 1) As to Clark's fifth cause of action for sexual harassment under California's Fair Employment and Housing Act ('FEHA'), Chini raises three arguments.

First, Chini asserts he cannot be held liable for sexual harassment because neither he nor the company for which he is Vice President, Bainbridge Capital, Inc. ('Bainbridge'), was Clark's employer. The FEHA prohibits both direct and indirect employers, as well as 'any other person' in the workplace context, from harassing employees. (Govt. Code §§ 12926(d), 12940(j)(3).) Holding Chini liable, as Clark's direct supervisor, for any proven sexual harassment is clearly within both the letter and the purpose of the FEHA. Chini has not met his initial burden of persuasion to demonstrate he cannot be held liable under the FEHA on this ground. (Aguilar v. Atlantic Richfield (2001) 25 Cal.4th 826, 850-51.) Second, Chini asserts Clark's allegations of sexual harassment are too general and non-specific. Clark alleges sexual harassment in the form of a hostile work environment. '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 Calendar No.: Event ID: TENTATIVE RULINGS

3042413 5 CASE NUMBER: CASE TITLE: BAINBRIDGE CAPITAL INC VS VOLT MANAGEMENT CORP [IMAGED] 37-2020-00008514-CU-BC-CTL intimidating, hostile, or offensive working environment.' (Govt. Code § 12923(b).) There are numerous specific allegations of harassing conduct in Clark's Cross-Complaint, and these are supported by her declaration in opposition to the motion. (Cross-Complaint (ROA 8), ¶¶ 45-52; Clark Decl. ¶¶ 4-10.) Third, Chini asserts he never harassed Clark. As to this argument, the court finds there is a triable issue of material fact. Again, Clark asserts Chini repeatedly harassed her and has offered evidence of the harassment by describing it in her declaration. (Clark Resp. Sep. Stmt. ¶ 14; Clark Decl. ¶¶ 4-10.) Eighth, Tenth, and Eleventh Causes of Action – Labor Code Wage Violations (MSA Issue Nos. 2-4) As to the eighth, tenth, and eleventh causes of action, Chini asserts that he cannot be liable in his individual capacity for any failure to pay wages. As Clark points out in her opposition, corporate owners and officers may be held liable for unpaid wages. (Lab. Code § 558.1.) Chini is a Vice-President of Bainbridge. (Chini Decl. ¶ 1.) Chini also asserts that Clark was an exempt employee, but provides no analysis or authority as to why that absolves him of liability. He also asserts Bainbridge was not Clark's employer; however, he has not met his initial burdens of persuasion and production on this issue, since, among other things, liability for wage violations may attach to indirect as well as direct employers.

(Martinez v. Combs (2010) 49 Cal.4th 35, 59.) Chini's citations to Labor Code sections 6300 and 6304 are not on point. Labor Code section 6300 et seq. is the California Occupational Safety and Health Act ('CalOSHA'). Clark is not suing Chini under these provisions.

Twelfth Cause of Action – Whistleblower Retaliation (MSA Issue No. 5) As to Clark's twelfth cause of action, Chini raises two arguments.

As a preliminary matter, Chini cites legal authorities that pertain to other forms of retaliation (i.e., retaliation in violation of public policy and retaliation under the FEHA), neither of which are asserted in Clark's Cross-Complaint. Clark's cause of action is for violation of Labor Code section 1102.5. Under Labor Code section 1102.5, employers may not retaliate against employees who disclose information to government/law enforcement/other persons with authority 'if the employee has reasonable cause to believe the information discloses' a violation of law. (Lab. Code § 1102.5(b).) First, Chini again asserts that neither he nor Bainbridge was Clark's employer. Again, Chini has not met his initial burdens of persuasion and production on this issue. (Aguilar, supra.) Like the other Labor Code statutes, this statute encompasses not only the employer but also 'any person acting on behalf of the employer.' (Lab. Code § 1102.5(b).) Moreover, as Clark points out in opposition, the statute expressly encompasses 'client employers.' (Lab. Code § 1102.5(i).) Chini asserts in reply that Bainbridge cannot be a client employer because 'it is undisputed that the purpose of the contract with Volt was the placement of a single worker with Bainbridge Capital, and there were always no more than two contract workers placed with Bainbridge Capital at any one time.' (Reply at 5:16-18.) To the extent Chini is referring to a contract between Bainbridge and Volt, Chini did not offer that contract as evidence in support of his motion. Further, there is no evidence before the court as to the size of Bainbridge's total workforce that might place Bainbridge within an exemption. (Lab. Code § 2810.3(a)(1)(B)(i).) Although Chini asserts Bainbridge would be exempt because it only contracted for one worker (Clark), this is not sufficient to demonstrate Bainbridge was not also supplied with additional labor by Volt or another agency. (Lab. Code § 2810.3(a)(1)(B)(ii).) To the contrary, evidence submitted by Chini indicates Bainbridge was supplied with other workers. (See Chini Decl. at ¶ 31.) In any event, contractual provisions are not determinative as to whether an employer/employee relationship exists, but are at most one factor in the analysis.

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3042413 5 CASE NUMBER: CASE TITLE: BAINBRIDGE CAPITAL INC VS VOLT MANAGEMENT CORP [IMAGED] 37-2020-00008514-CU-BC-CTL Second, Chini asserts Bainbridge was never informed of any claimed overtime wages before termination of Clark's employment. As to this argument, the court finds there is a triable issue of material fact. Clark has offered evidence in the form of an email, dated April 11, 2019, where she complains to Chini about unpaid overtime wages before her employment was terminated. (Clark Resp. Sep. Stmt. ¶ 17; see also Reply (ROA 366) at 1:11-13.) Chini provides no authority or rationale as to why this complaint should be disregarded because it does not provide a specific dollar amount.

Fifteenth Cause of Action – Intentional Infliction of Emotional Distress (MSA Issue No. 6) Chini asserts he did not intend to inflict any emotional distress on Clark, and that his conduct was not outrageous. The only evidence Chini offers in support of this argument is his own declaration stating he treated Clark in a professional manner and did not intend to cause her emotional distress. (Chini Sep.

Stmt. at ¶ 21; Chini Decl. at ¶ 6.) The court finds there are triable issues of material fact that preclude summary judgment. (Clark Resp. Sep. Stmt. at ¶ 14 and Clark Decl. at ¶¶ 4-10; see Accardi v. Superior Court (1993) 17 Cal.App.4th 341, 352, disapproved on other grounds by Richards v. CH2M Hill, Inc.

(2001) 26 Cal.4th 798; see also Myers v. Trendwest Resorts, Inc. (2007) 148 Cal.App.4th 1403, 1426.) Chini also asserts Clark's cause of action for intentional infliction of emotional distress is barred by the workers compensation exclusive remedy rule. Clark fails to respond to this argument in her opposition memorandum. However, the law is clear that the exclusive remedy rule does not bar claims for intentional infliction of emotional distress that stem from sexual harassment. (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 288, noting '[n]either discrimination nor harassment is a normal incident of employment.') Accordingly, this argument does not have merit.

Affirmative Defense – Corporate Veil (MSA Issue No. 7) Chini next asserts he is entitled to judgment on all of the causes of action against him 'because the corporate veil defense defeats' them.

At the outset, the court is not aware of any legal authority construing corporate veil piercing as an 'affirmative defense,' nor has Chini cited any such legal authority in his motion. Further, the court notes Clark's Cross-Complaint contains no alter ego allegations.

Regardless, as already set forth above, Clark need not proceed on an alter ego/corporate piercing theory for Chini to be held liable for her claims.

Punitive Damages (MSA Issue No. 8) Lastly, Chini asserts Clark cannot obtain punitive damages against him. The court finds there are triable issues of material fact as to whether Chini may be liable for punitive damages. (Clark Resp. Sep. Stmt.

at ¶ 14 and Clark Decl. at ¶¶ 4-10.) Once confirmed, this ruling shall be the final ruling of the court and no further order is required.

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