Judge: Ronald F. Frank, Case: 21TRCV00408, Date: 2023-09-19 Tentative Ruling

Case Number: 21TRCV00408    Hearing Date: September 19, 2023    Dept: 8

Tentative Ruling¿ 

¿¿ 

HEARING DATE:                 September 19, 2023¿ 

¿¿ 

CASE NUMBER:                  21TRCV00408

¿¿ 

CASE NAME:                        Shaun Anderson v. Southern California Gas Company, et al.

¿¿ 

MOVING PARTY:                Defendant, Southern California Gas Company

RESPONDING PARTY:       Plaintiff, Shaun Anderson

¿¿ 

TRIAL DATE:                        December 5, 2023

¿¿ 

MOTION:¿                              (1) Motion for Summary Judgment, or in the alternative, Summary Adjudication

¿ Tentative Rulings:                 (1)  ARGUE.  The Court requests oral argument as to any precedents regarding a triable issue of fact arising from the length of time an employer delays in disciplining an employee for on the job misconduct, or the effect of a claimed inadequate investigation before the employer discipline the employee who is alleged to have engaged in the misconduct.  Further, the Court seek argument or further briefing as to the effect of a law enforcement refusal to provide information about an ongoing criminal investigation as affecting the reasonableness of an employment misconduct investigation or ratification by delay in disciplining.

I. BACKGROUND¿¿ 

¿¿ 

A.    Factual¿¿ 

On June 4, 2021, Plaintiff Shaun Anderson (“Plaintiff”) filed an action against Defendant, Southern California Gas Company, Derrick Grandberry, and Does 1 through 20. The Complaint alleges causes of action for: (1) Sexual Harassment; (2) Sexual Battery; (3) Battery; (4) Assault; (5) Gender Violence; (6) Civil Rights Act of Violence – Ralph Act; and (7) Negligent Supervision and Hiring. Plaintiff’s complaint alleges that on December 20, 2020, she called SoCalGas to report a gas leak in her building. Defendant, Derrick Grandberry (“Grandberry”) responded to the call. Plaintiff’s complaint arises out of her claim that Grandberry raped her during the service call. Grandberry denied the incident, and denied that he had sex or raped her, in both written discovery responses and at his deposition. At his deposition, Grandberry testified that he received a letter of termination from Defendant SoCalGas, but refused to state what the letter said, and has refused to produce the letter in response to a follow up written discovery request. Plaintiff has also noted that Grandberry has refused to produce all related documents pertaining to his termination.

Defendant Southern California Gas Company (“SoCalGas”) now files a Motion for Summary Judgment.

B. Procedural¿¿ 

            On June 1, 2023, Defendant filed a Motion for Summary Judgment. On September 1, 2023, Plaintiff filed an opposition. On September 14, 2023, SoCalGas filed its Reply papers.

            The Court also notes that on July 14, 2021, Plaintiff filed a Request for Dismissal of the Second and Third causes of action against SoCalGas. On June 14, 2023, Plaintiff filed a Request for Dismissal of the Seventh Cause of Action against SoCalGas. On August 15, 2023, Plaintiff filed a Request for Dismissal of the Fourth Cause of Action against SoCalGas.

II. REQUEST FOR JUDICIAL NOTICE

            In their exhibit list, SoCalGas has requested this Court take judicial notice of the following documents:

1.      July 14, 2021 Dismissal of Certain Causes of Action entered by the Court Clerk, which is attached to their motion as Exhibit A.; and

2.       Complaint in Shaun Anderson v. Southern California Gas Company, et a/., Case No. 21TRCV00408, which is attached to their motion as Exhibit B.

The Court GRANTS this request and takes judicial notice of the above documents.

III. ANALYSIS¿ 

            Plaintiff’s argument in the Complaint and in the opposition to this MSJ is based on the theory that SoCalGas ratified its former employee’s alleged misconduct on the job.   (Complaint, ¶ 22.)  SoCalGas asserts that it could not have ratified Groundberry’s alleged misconduct because it did not learn sufficient facts to ratify or discipline him until it had sufficient facts flowing from its internal investigation to make a decision, and that decision was to terminate his employment.  Plaintiff admits that SoCalGas’ UMFs 1-18 are undisputed, but it raises a dispute as to the adequacy or expeditiousness of its investigation and Plaintiff relies on the Defendants’ timeline and Henley Declaration to attempt to raise a triable issue. 

Defendant SoCalGas provided undisputed evidence showing that it did not become aware of the sexual assault allegations that occurred on January 7, 2020 until Plaintiff filed and served her Complaint in June of 2021.  Ms. Henley’s Declaration states that SoCalGas thereupon immediately initiated an investigation and took steps to bar Grandberry’s access to customers by taking away his photo ID badge and uniform. SoCalGas asserts that the Hawthorne Police Department refused to provide information to SoCalGas because of its ongoing criminal investigation until July of 2022.  Further, SoCalGas notes that shortly after receiving information in the Summer of 2022 from the Hawthorne Police Department that he appeared to admit to having a sexual encounter with Plaintiff during working hours, SoCalGas terminated Grandberry’s employment.

In support for its position, SoCalGas submitted the declaration of Stephanie Henley, Labor and Employee Relations Team Lead for SoCalGas. In her declaration she laid out the following timeline: (1) SoCalGas first learned of the allegations when it was served the complaint on June 18, 2021 (Declaration of Stephanie Henley (“Henley Decl.”), ¶ 3); (2) As part of the investigation, Henley interviewed Grandberry on July 7, 2021when he denied the allegations (Henley Decl., ¶ 5); (3) On August 10, 2021, she attempted to contact the detective by phone to request copies, but was unable to reach her, and instead left a voicemail (Henley Decl., ¶ 6); (4) On July 28, 2022, she listened to and viewed recordings Hawthorne Police Department provided to SoCalGas in response to the subpoena for criminal investigation where Grandberry admitted to having sex with Plaintiff during working hours (Henley Decl., ¶ 11); and (5) that Grandberry was terminated on August 3, 2022 (Henley Decl., ¶ 12.)

SoCalGas also argues even if it were allegedly true that they ratified Grandberry’s conduct by not firing him immediately, it rescinded any such purported ratification by firing him after being “fully informed” and after possessing “knowledge of [the] material facts.” (citing Rakestraw v. Rodrigues (1972) 8 Cal.3d 67, 74-75 (holding “voluntary ratification” requires an opportunity “to rescind” after being “fully informed” and possessing “knowledge of material facts.”).)

            In opposition, Plaintiff alleges that triable issues of fact exist as to whether SoCalGas ratified Grandberry’s sexual harassment. Plaintiff argues that SoCalGas’s assertions that it “immediately” launched an investigation and deactivated Grandberry’s badge are disputed facts. Plaintiff argues that there is no evidence of an investigation, other than review of Plaintiff’s complaint, and a claim of conducting a brief interview with Grandberry. Plaintiff contends that the only evidence of this alleged interview with Grandberry is in a one-page summary of Grandberry’s termination one year later, which contains no information on what questions were asked, what answers were given, or the substance of the interview itself. Plaintiff also argues that SoCalGas never interviewed Plaintiff, never spoke to Hawthorne Police Department or the assigned detective investigating the incident, or anyone else. Plaintiff also contends that the video recording of Grandberry’s admission was available as early as January 7, 2021. (Plaintiff, Exhibit 1, Police Report (Bates Anderson 054).) However, Plaintiff asserts that Defendant made no effort to obtain the video recording or talk to the detective about it for over a year since receiving Plaintiff’s Complaint.

The evidence on the timeliness of efforts to obtain law enforcement files is as follows: (1) Exhibit E – a August 9, 2021 subpoena to the Hawthorn Police Department regarding the investigation into the incident; (2) An August 19, 2021 objection to the subpoena for Business Records served by the Hawthorne Police Department (Exhibit F); and (3) as Exhibit G, emails between its attorney, Henry H. Gonzalez, and Alison Stevens, Assistant City Attorney, requesting the status of the criminal investigation and production of the reports and investigative file from November 16, 2021 through July 26, 2022. Thus, it appears that SoCalGas attempted to seek information from the Hawthorne Police Department about the allegations surrounding Grandberry prior to the July 28, 2022 receiving of the video which led to the termination of Grandberry.