Judge: Robert S. Draper, Case: 22STCV28233, Date: 2023-02-08 Tentative Ruling

Case Number: 22STCV28233    Hearing Date: February 8, 2023    Dept: 78

Superior Court of California

County of Los Angeles

Department 78

Defendants City of Monrovia and Jeremy Sanchez’s Demurrer to the Complaint is OVERRULED.

Defendants City of Monrovia and Jeremy Sanchez’s Motion to Strike is DENIED.

Defendants have thirty days to file a responsive pleading.

FACTUAL BACKGROUND

This is an action for workplace harassment brought under the Fair Employment and Housing Act (“FEHA”). The operative First Amended Complaint (“FAC”) alleges as follows.

Plaintiff Tino Buccola (“Plaintiff”) is employed by Defendant City of Monrovia (“Monrovia”) as an engineer with the City of Monrovia Fire Department (the “Fire Department”). (FAC ¶ 1.) On December 11, 2021, many of Plaintiff’s coworkers at the Fire Department, including Fire Chief Defendant Jeremy Sanchez (“Sanchez” and with Monrovia, “Defendants”) attended a party to which Plaintiff was not invited and did not attend. (FAC ¶ 7.) At that party, the Fire Department Employees used a poster sized photo of Plaintiff, shirtless and in board shorts, to play pin the tail on the donkey; the coworkers used a helmet as the tail and Plaintiff as the donkey. (FAC ¶¶ 7-8.) A video of the event, which Plaintiff later saw, featured Sanchez placing the helmet on Plaintiff’s crotch. (FAC ¶ 9.) Additionally, Plaintiff saw photos of his coworkers taunting him, and of another coworker squeezing his nipples in the picture. (FAC ¶ 9.)

Sanchez reported the event to Sanchez, his union representative, and to then Fire Chief, Brad Dover. (FAC ¶ 12.) Dover promised Plaintiff that if Plaintiff did not file a formal complaint, the Fire Department would bring in an outside speaker to conduct sexual harassment trainings for Fire Department employees. (FAC ¶ 15.) In addition, Dover circulated a letter acknowledging the inappropriateness of the event and stating that “workplace policy and guidelines apply when at off-duty gatherings if there is a nexus to work” and that that “was absolutely the case here.” (FAC ¶ 17.)

The Fire Department did host a brief conversation regarding sexual harassment, but not every employee was required to be in attendance. (Compl. ¶ 18.) In addition, Plaintiff’s co-workers continued to harass him, calling him “pussy” and other epithets for reporting the party. (FAC ¶ 19.)

PROCEDURAL HISTORY

On August 30, 2022, Plaintiff filed the Complaint asserting two causes of action:

1.    Violation of Government Code § 12940 – Harassment on the Basis of Sex and/or Gender, and

2.    Violation of Government Code § 12940 – Failure to Prevent Discrimination, Harassment, and/or Retaliation.

On September 30, 2022, Plaintiff filed the operative First Amended Complaint asserting the same two causes of action.

On December 1, 2022, Defendants filed the instant Demurrer to the First Amended Complaint.

On January 26, 2023, Plaintiff filed an Opposition.

On February 1, 2023, Defendants filed a Reply.

DISCUSSION

I.                DEMURRER

Defendants demur to both causes of action.

A demurrer should be sustained only where the defects appear on the face of the pleading or are judicially noticed. (Code Civ. Pro., §§ 430.30, et seq.) As is relevant here, a court should sustain a demurrer if a complaint does not allege facts that are legally sufficient to constitute a cause of action. (See id. § 430.10, subd. (e).) As the Supreme Court held in Blank v. Kirwan (1985) Cal.3d 311: “We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. . . . Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.” (Id. at p. 318; see also Hahn. v. Mirda (2007) 147 Cal.App.4th 740, 747 [“A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. [Citation.]”)

“In determining whether the complaint is sufficient as against the demurrer … if on consideration of all the facts stated it appears the plaintiff is entitled to any relief at the hands of the court against the defendants the complaint will be held good although the facts may not be clearly stated.” (Gressley v. Williams (1961) 193 Cal.App.2d 636, 639.) 

A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment. (Schifando v. City of Los Angeles, supra, 31 Cal.4th at p. 1081.) The demurrer also may be sustained without leave to amend where the nature of the defects and previous unsuccessful attempts to plead render it probable plaintiff cannot state a cause of action. (Krawitz v. Rusch (1989) 209 Cal.App.3d 957, 967.)

A.   First Cause of Action – Harassment on the Basis of Sex and/or Gender

Defendants demur to the First Cause of Action for Harassment on the Basis of Sex and/or Gender.

The¿elements¿of a hostile work environment¿sexual¿harassment¿claim are as follows: (1) the plaintiff belongs to a protected group; (2) the plaintiff was subjected to unwelcome harassment; (3) the harassment was based on sex; (4) the harassment was pervasive enough to “alter the conditions of employment and create an abusive environment.” (Guthrey v. State of California¿(1998) 63 Cal.App.4th 1108, 1122-1123.)¿ In determining whether the behavior altered the conditions of employment, “[t]he working environment must be evaluated in light of the totality of the circumstances: ‘[W]hether an environment is ‘hostile’ or ‘abusive’ can be determined only by looking at all the circumstances. These may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.” (Miller v. Department of Corrections)¿(2005) 36 Cal.4th 446, 462.) The degree of hostility is evaluated from the perspective of a reasonable employee of the same sex as the plaintiff. (Fisher v. San Pedro Peninsula Hospital¿(1989) 214 Cal.App.3d 590, 609-610, fn. 7.)

Here, Defendants make two arguments as to why Plaintiff fails to state a claim under FEHA. First, Defendants contend that Plaintiff has not stated facts demonstrating severe or pervasive conduct. Second, Defendants contend that Plaintiff fails to allege harassment occurring within the course and scope of his employment.

1.    Severe and Pervasive

First, Defendants contend that Plaintiff has not alleged conduct constituting severe and pervasive harassment.

Defendants cite two cases to support this argument, Brennan v. Townsend and O’Leary Enterprises, Inc. (2011) 199 Cal.App.4^th 1336, 1347-48 and Herberg v. California Institute of the Arts (2002) 101 Cal.App.4^th 142.

In Brennan, plaintiff employee filed suit against defendant employer under FEHA.

Defendant’s owner would frequently ask plaintiff invasive questions about her sex life. Additionally, plaintiff planned a bachelorette party heavily attended by defendant’s employees in which the bride-to-be wore a veil that had a plastic penis attached to it. At an all staff meeting the next week, defendant’s owner asked the bride-to-be to wear the veil while describing the bachelorette party. Next, defendant hosted an office Christmas party where an employee dressed as Santa Claus asked the female employees to sit on his lap while he asked invasive questions; plaintiff did not sit on his lap. Finally, plaintiff received an email inadvertently sent to another coworker in which a coworker referred to plaintiff as “big-titted” and “mindless.” The coworker who accidentally received the email then forwarded the email to plaintiff.

After a jury awarded plaintiff $250,000, defendant filed a motion for judgment notwithstanding the verdict. The trial court granted that motion.

In affirming, the Brennan Court held that the sexual harassment was neither severe nor pervasive as “Plaintiff was never subjected to verbal abuse or harassment” and that though the email referring to plaintiff as “big-titted and mindless” was “rude, insulting and unprofessional,” “there was no evidence [the sender] or any employee of [defendant] made any other derogatory remarks about plaintiff, sex-based or otherwise, in any other context.” (Brennan at p. 1354.) Additionally, the court noted that the email was not intended to be shared publicly, and instead was indisputably intended to be sent to only one person. (Ibid.) Finally, the Brennan Court noted that the remaining incidents were not directed at plaintiff, and “[t]hose four incidents occurred over the course of a four-year period with a frequency of six months to years in between incidents. We cannot conclude that those incidents constitute a ‘pattern of continuous, pervasive harassment’”. (Brennan at p. 1355.)

Plaintiff’s reliance on Brennan is inapposite for several reasons. First, unlike Brennan where the harassing email was intended to be published to only one person and was never intended to be public, here Plaintiff’s coworkers mocked Plaintiff at a party with many coworkers and their significant others, then took pictures and videos of that mockery to be distributed. Second, unlike Brennan, Plaintiff does not complain of several unrelated incidents over the course of years. Instead, Plaintiff complains of an incident, and then his coworkers continued harassment after he attempted to address the incident. This establishes a much clearer pattern of harassment than in Brennan.

In Herberg, plaintiff was an employee of defendant arts college. Two students attending defendant arts college painted a picture featuring plaintiff engaged in sexual acts, then exhibited that painting to the school. Plaintiff filed suit under FEHA.

The trial court granted defendant’s motion for summary judgment, finding that the 24-hour display of the art piece did not constitute severe or pervasive harassment.

In affirming, the Herberg Court found that liability for sexual harassment could not be imposed based on a single incident that does not involve egregious conduct such as a physical assault or the threat of physical assault.

Here, Plaintiff’s reliance on Herberg is inapposite because the incident at the party is not the only harassment that Plaintiff alleges. Plaintiff also alleges that “the harassment of [Plaintiff] has continued unabated, with his co-workers calling him a “pussy” and other epithets for complaining about the harassment to the [Fire Department].” (FAC ¶ 19.) Additionally, the First Amended Complaint alleges that Plaintiff’s supervisor has engaged in this continued harassment. (FAC ¶ 20.)

As Plaintiff does not allege a single incident, but an incident leading to a pattern of harassment over time, the Court finds that Plaintiff has alleged severe and pervasive harassment sufficient to state a cause of action under FEHA at the pleading stage.

2.    Course and Scope of Employment

Next, Defendants contend that the only harassment that Plaintiff alleges occurred outside the course and scope of Plaintiff’s employment.

The Court need not consider this issue at length. Plaintiff quotes in the First Amended Complaint a letter from the fire chief explicitly stating that “workplace policy and conduct guidelines apply when at off-duty gathering if there is a nexus to work. This is absolutely the case here.” (FAC ¶ 17.)

Additionally, the First Amended Complaint does not simply allege that harassment occurred at the party, but also a pattern of harassment related to the party occurred at work, and adversely affected Plaintiff’s workplace environment.

Accordingly, the Court finds that Plaintiff has alleged harassment occurring within the course and scope of his employment. Plaintiff’s Demurrer to the First Cause of Action is OVERRULED.

B.   Second Cause of Action – Failure to Prevent FEHA Violations

Next, Defendants demur to the Second Cause of Action for Failure to Prevent FEHA Violations on the basis that Plaintiff did not successfully state any FEHA violations for Defendants to prevent.

As Defendants’ Demurrer to the First Cause of Action was overruled, this argument is moot.

Accordingly, Defendants’ Demurrer to the Second Cause of Action is OVERRULED.

II.              MOTION TO STRIKE

Next, Defendants Move to Strike Plaintiff’s prayer for punitive damages from the First Amended Complaint.

Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof. (Code Civ. Proc., § 435, subd. (b)(1).) The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc., § 436, subd. (a); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].) The court may also strike all or any part of any pleading not drawn or filed in conformity with California law, a court rule, or an order of the court. (Code Civ. Proc., § 436, subd. (b).) An immaterial or irrelevant allegation is one that is not essential to the statement of a claim or defense; is neither pertinent to nor supported by an otherwise sufficient claim or defense; or a demand for judgment requesting relief not supported by the allegations of the complaint. (Code Civ. Proc., § 431.10, subd. (b).) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Code Civ. Proc., § 437.) 

Punitive damages may be imposed where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice. (Civ. Code, § 3294, subd. (a).) “Malice” is conduct intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on with a willful and conscious disregard of the rights or safety of others. (Civ. Code, § 3294, subd. (c)(1).) “‘Punitive damages are proper only when the tortious conduct rises to levels of extreme indifference to the plaintiff’s rights, a level which decent citizens should not have to tolerate.’ [Citation.]” (Lackner v. North (2006) 135 Cal.App.4th 1188, 1210.) “As amended to include [despicable], the [Civil Code section 3294] plainly indicates that absent an intent to injure the plaintiff, ‘malice’ requires more than a ‘willful and conscious’ disregard of the plaintiffs’ interests. The additional component of ‘despicable conduct’ must be found.” (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 725.) The statute’s reference to despicable conduct represents a “new substantive limitation on punitive damage awards.” (Ibid.) Despicable conduct is “conduct which is so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people. Such conduct has been described as ‘having the character of outrage frequently associated with crime.’” (Tomaselli v. Transamerica Ins. Co. (1994) 25 Cal.App.4th 1269, 1287.) 

A motion to strike punitive damages is properly granted where a plaintiff does not state a prima facie claim for punitive damages, including allegations that defendant is guilty of oppression, fraud or malice. (Turman v. Turning Point of Cent. California, Inc. (2010) 191 Cal.App.4th 53, 63.) “Mere negligence, even gross negligence, is not sufficient to justify such an award” for punitive damages. (Kendall Yacht Corp. v. United California Bank (1975) 50 Cal.App.3d 949, 958.) The allegations supporting a request for punitive damages must be alleged with specificity; conclusory allegations without sufficient facts are not enough. (Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1041-1042.)

Defendants argue, first, that Plaintiff cannot seek punitive damages against Monrovia as exemplary and punitive damages cannot be recovered against a public entity. (Gov. Code §§ 818 & 825(a).) In Opposition, Plaintiff notes that he does not seek punitive damages against Monrovia as the First Amended Complaint explicitly states that Plaintiff is entitled to punitive damages against all Defendants “except any Defendant who is specifically excluded by law being liable for punitive damages.” Additionally, the FAC explicitly seeks punitive damages “against Defendants Sanchez and DOES 1-25.”

Second, Defendants argue that Plaintiff does not allege facts demonstrating malice, fraud or oppression against Sanchez sufficient to support a prayer for punitive damages.

The First Amended Complaint alleges that Sanchez was present at a party where an enlarged picture of Plaintiff shirtless and in board shorts was posted; video of that party was sent to Plaintiff showing Sanchez placing a helmet over Plaintiff’s crotch; and that Sanchez knew of and participated in the continuing harassment against Plaintiff. (FAC ¶ 7, 19-20.)

The Court finds that Plaintiff has stated sufficient facts to support a prayer for punitive damages against Sanchez.

Defendants’ Motion to Strike is DENIED.

DATED: February 8, 2023

__________________________

Hon. Robert S. Draper

Judge of the Superior Court