Judge: Theresa M. Traber, Case: 20STCV36059, Date: 2023-02-02 Tentative Ruling

Case Number: 20STCV36059    Hearing Date: February 2, 2023    Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE:     February 2, 2023                   TRIAL DATE: March 7, 2023

CASE:                         Anita Young v. The Kroger Co. et al.

CASE NO.:                 20STCV36059           

(1)   MOTION TO FILE UNDER SEAL

(2)   MOTION FOR SUMMARY JUDGMENT OR SUMMARY ADJUDICATION

MOVING PARTY:               (1)(2) Defendants Ralph’s Grocery Co and Keith Henry.

RESPONDING PARTY(S): (1)(2) Plaintiff Anita Young

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

            This is an employment law action for sexual harassment and retaliation that was filed on September 21, 2020. Plaintiff alleges that she was sexually harassed by her supervisor, and that her employers refused to investigate or take action, permitting the supervisor to retaliate against her for her complaints.

Defendants move to file certain documents under seal. Defendants also move for summary judgment, or, in the alternative, for summary adjudication on all causes of action.

TENTATIVE RULING:

            Defendants’ Motion to Seal is DENIED.

            Defendants’ Motion for Summary Judgment is DENIED.

            Defendants’ Motion in the Alternative for Summary Adjudication is DENIED.

DISCUSSION:

Motion to File Under Seal

            Defendants move to file certain documents under seal.

            The sealing of court records is governed by California Rules of Court rules 2.550 and 2.551.  (Mercury Interactive Corp. v. Klein (2007) 158 Cal.App.4th 60, 68.)  The presumption of open access to court records does not apply to “records that are required to be kept confidential by law.” (Cal. Rules of Court, rule 2.550(a)(3).) A party seeking to seal a court record or seeking to file a record under seal must do so by motion or application supported by a declaration showing facts justifying the record’s sealing.  (Id., rule 2.551(b)(1).)  

California Rules of Court, Rule 2.550(d) states: “The court may order that a record be filed under seal only if it expressly finds facts that establish: 

(1) There exists an overriding interest that overcomes the right of public access to the record;

(2) The overriding interest supports sealing the record; 

(3) A substantial probability exists that the overriding interest will be prejudiced if the record is not sealed; 

(4) The proposed sealing is narrowly tailored; and 

(5) No less restrictive means exist to achieve the overriding interest.”  

            Once sealed, a record can only be unsealed by order of court.  (Id., rule 2.551(h)(1).)  So long as it remains under seal, all parties must refrain from filing anything not under seal that would disclose the sealed matter.  (Id., rule 2.551(c).)  If a party files a new document referring to sealed matter, it must submit an unredacted version of the document under seal and a redacted one for the public record.  (Id., rule 2.551(b)(5); H.B. Fuller Co. v. Doe (2007) 151 Cal.App.4th 879, 889.) 

            Defendants seek to file five sets of documents under seal: (1) Exhibit D to the Declaration of Sadira McFarland filed in support of Defendants’ Motion for Summary Judgment, which is a copy of certain Ethics Point complaints; (2) Exhibit E to the same declaration, a copy of the investigation file related to Plaintiff’s November 10, 2015 internal complaint; (3) Exhibit P to the same declaration, a copy of the investigation file related to claims raised in Plaintiff’s DFEH complaint; (4) Exhibit Q to the same declaration, a copy of Ethics Point Complaints mentioning the name of Defendant Keith Henry, and (5), Exhibits 13 and 14 to the Declaration of Cassidy C. Veal in support of Defendants’ Motion for Summary Judgment, which are copies of two of Plaintiff’s Ethics Point Complaints.

            Defendants contend that these documents should be sealed because they contain confidential information. Defendants assert that there is an overriding interest in protecting the privacy rights of an associate about whom Plaintiff complained. Defendant also asserts that there is an overriding interest in protecting and promoting employee participation in workplace investigations. The thrust of Defendants’ argument is that preservation of an individual’s right to privacy is a compelling interest which, in and of itself, is sufficient to justify a sealing order.

            Defendants are mistaken. It is true that individuals have a right to privacy under the California Constitution which is a fundamental and compelling interest. (Hill v. National Collegiate Athletic Ass’n (1990) 18 Cal.App.4th 1290, 1294.) It is also true that discovery of constitutionally protected information is considered “on a par with discovery of privileged information.” (Tylo v. Superior Court of L.A. Cty. (1997) 55 Cal.App.4th 1379, 1387.) And indeed, documents containing privileged information may be properly subject to a sealing order. (Huffy Corp. v. Superior Court (Winterthur Swiss Ins. Co.) (2003) 112 Cal.App.4th 97, 108 [in dicta, abrogated on other grounds by Coito v. Superior Court (2012) 54.Cal.4th 480].) However, the mere fact that a document may contain the identity of witnesses to a violation of law does not, of itself, entitle a party to a sealing order. (Id.) Nor does the fact that the document may contain admissions of wrongdoing, whether by a party to the action or not. (Id.) Further, Defendants cite no law whatsoever in support of the contention that there is an overriding interest in “protecting and promoting employee participation in workplace investigations.”

            Defendants have not carried their burden to establish that there is an overriding interest that overcomes the right of public access to these records.

Conclusion

            Accordingly, Defendants’ Motion to Seal is DENIED.

Motion for Summary Judgment

            Defendants move for summary judgment against Plaintiff. As Defendants have not established that they are entitled to summary adjudication on all causes of action asserted against them for the reasons stated below, Defendants are not entitled to summary judgment.

            Accordingly, Defendants’ Motion for Summary Judgment is DENIED.

Motion for Summary Adjudication

            Defendants move for summary adjudication of all causes of action asserted against them.

Legal Standard

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party can show evidentiary support for a pleading or claim and, if not, to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) Code of Civil Procedure Section 437c(c) “requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, 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.”  (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)  “The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.” (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67, citing FPI Development, Inc. v. Nakashima (1991) 231 Cal. App. 3d 367, 381-82.)

As to each claim as framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. (Code Civ Proc. § 437c(p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520.) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.) The lack of opposition by a plaintiff is not grounds to grant a motion for summary judgment if a defendant cannot meet their initial burden of proof. (See Thatcher v. Lucy Stores, Inc. (2000) 79 Cal.App.4th 1081, 1087.)

            Once the defendant has met that 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 a defense thereto. To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

Procedural Violations

            Neither Defendants nor Plaintiff are free from sin where the procedural requirements for a motion for summary judgment are concerned.

When seeking summary adjudication, “the specific cause of action . . . must be stated specifically in the notice of motion and be repeated, verbatim, in the separate statement of undisputed material facts.” (Cal. Rules of Court 3.1350(b), bold emphasis added.) The separate statement must “separately” identify “[e]ach cause of action . . . that is the subject of the motion.” (Cal. Rules of Court 3.1350(d)(1)(A), bold emphasis added.) The separate statement must also “separately” identify “[e]ach supporting material fact claimed to be without dispute with respect to the cause of action” – that is, each cause of action – “that is the subject of the motion.” (Cal. Rules of Court 3.1350(d)(1)(B), bold emphasis added.) That means that if the same facts relate to multiple causes of action, they must be separately set forth in the separate statement as to each cause of action as to which the moving party seeks summary adjudication.

Defendants’ separate statement does not comply with this requirement. Instead of complying with the Rules of Court, Defendants set forth all their purportedly undisputed material facts in one contiguous section, and then, as to each issue, incorporated select undisputed material facts by reference. Not only is this entirely improper, it is also spectacularly unhelpful as to resolution of the motion. Fortunately for Defendants, the body of the motion cites to specific numbered material facts as relevant to each issue, and Plaintiff does not object to the separate statement on this basis.

Defendants also attempt to introduce a response to Plaintiff’s Statement of Additional Facts (titled “Plaintiff’s Separate Statement of Undisputed Material Facts”). Rule 3.1350 does not authorize the filing of such a statement. This filing is improper, and the Court will therefore not consider it.

            Plaintiff has also committed multiple violations of the Rules of Court. Rule 3.1113(d) requires that all opposition briefs be no more than 20 pages in length. Plaintiff’s Opposition brief is 22 pages, excluding the caption, table of contents, and table of authorities. Defendants object to the overlength opposition as improper, and request that the Court either disregard the opposition in its entirety, or, alternatively, disregard the overlength pages. As the Court has overlooked Defendants’ failure to comply with the Rules of Court, equity demands that the Court extend similar grace to Plaintiff.

            Plaintiff also filed a “Separate Statement of Undisputed Material Facts” as a separate filing, rather than as additional facts incorporated into the response to Defendants’ Separate Statement. (Cal. Rules of Court Rule 3.1350(f).) However, as Defendants have not objected to this filing, the Court will overlook this procedural violation as well.

            As none of the procedural violations by the parties are ultimately material to the motion, the Court will exercise its discretion to overlook the many procedural errors committed by both sides. However, the parties are admonished in the strongest of terms to comply with the procedural and formatting requirements for all filings under the Rules of Court so that the parties can facilitate, rather than hinder, the efficient resolution of their case.

Plaintiff’s Requests for Judicial Notice

            Plaintiff requests that the Court take judicial notice of the LinkedIn profiles of Erin Sharp and Robin Duboc. Plaintiff contends that the court may take judicial notice of these materials because they contain facts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy, pursuant to Evidence Code section 452(g). Defendants object to these requests as entirely improper. The Court concurs. Plaintiff offers no basis to conclude that judicial notice is appropriate as to the contents of another individual’s LinkedIn profile. Plaintiff’s requests for judicial notice are therefore DENIED.

            That said, the Declaration of Viridiana E. Aceves provided with each request for judicial notice states under penalty of perjury that she personally accessed and downloaded copies of these profiles. (See Declaration of Viridiana E. Aceves ISO Requests ¶ 1.) Although Plaintiff has not demonstrated a valid basis for judicial notice, this sworn statement is sufficient to authenticate these documents for incorporation into Plaintiff’s body of evidence in opposition to the motion. Thus, although the Court does not take judicial notice of these documents, the Court will consider these documents to the extent they are relevant to the disposition of the motion.

Timeliness of Claims

            Defendants seek summary adjudication of the first (sexual harassment), second (failure to prevent harassment), third (retaliation), and seventh (negligent supervision and retention) causes of action on the grounds that the statutes of limitations on these claims have run.

1.      FEHA Claims

            Defendants argue that Plaintiff’s claims under the Fair Employment and Housing Act are barred by the statute of limitations because the underlying DFEH complaint was filed more than one year after the last alleged violation. To pursue a claim for a violation of FEHA, an employee must exhaust their administrative remedies with the DFEH by filing a complaint within a statutorily proscribed time from the date upon which the alleged unlawful practice occurred. (Gov. Code § 12960(b), (d).) At the time the DFEH Complaint was filed on September 24, 2019, the statute of limitations on these claims was one year. Assembly Bill 9 extended that period to three years as of January 1, 2020, but this amendment is not retroactive. (A.B. 9, 2019 Cal. Stats. Ch. 709 § 3.) That said, the continuing violations doctrine allows liability for unlawful employer conduct occurring outside the statute of limitations if it is sufficiently connected to unlawful conduct within the limitations period. (Richards v. CH2m Hill, Inc. (2001) 26 Cal.4th 798, 802.)

            Defendants contend that the DFEH Complaint is untimely because it was filed on September 24, 2019, while Plaintiff “stopped working” in March 2018. (Defendant’s Separate Statement of Undisputed Material Fact Nos. 32, 33.) Defendants contend that Plaintiff testified in a deposition that the last incident of alleged sexual harassment occurred in 2018, and, since Plaintiff was placed on leave on March 5, 2018, the last incident could not have occurred after that date. (SSUMF Nos. 32, 50.) Defendants rely on Plaintiff’s response to a deposition question asking for the last “encounter that [she] found offensive,” to which she responded that the last incident occurred sometime in 2018.  (Plaintiff’s Deposition pp. 59:16-65:18.) This evidence is sufficient to meet Defendants’ burden of demonstrating that Plaintiff cannot prevail on the merits as to these claims on this basis. The burden now shifts to Plaintiff to demonstrate a triable issue of material fact.

In opposition, Plaintiff asserts that the limitations period on filing a DFEH complaint was equitably tolled while her workers compensation claim was pending.  The California Supreme Court has applied equitable tolling to extend the period for filing an administrative complaint under the FEHA where the employee first filed a claim for workers compensation benefits.  In Elkins v. Derby (1974) 12 Cal. 3d 410, the Supreme Court noted:  “It has long been settled in this and other jurisdictions that whenever the exhaustion of administrative remedies is a prerequisite to the initiation of a civil action, the running of the limitations period is tolled during the time consumed by the administrative proceeding.”  (Id., at p. 414.)  The Elkins Court extended the reach of equitable tolling to situations where the exhaustion of one remedy is not a prerequisite of the other, so long as the defendant has notice of the plaintiff’s complaints.  (Ibid.; see also Campbell v. Graham-Armstrong (1973) 9 Cal. 3d 482, 490 [“The exhaustion of administrative remedies will suspend the statute of limitations even though no statute makes it a condition of the right to sue.”].)  Applying this analysis, the Court in Elkins held that a worker’s pursuit of a related workers compensation claim will toll the limitations period for asserting harassment or other claims under the FEHA, because the filing of a workers compensation claim gives proper notice to the employer and an opportunity to investigate the employee’s complaint.  (Elkins v. Derby, supra, at p. 418;  see also Brohme v. California Highway Patrol (2020) 44 Cal.5th 786.) 

Here, the record includes evidence that Plaintiff filed a series of workers compensation claims and was on leave via her pursuit of workers compensation benefits from March 5, 2018 through November 10, 2019.  (Defendants’ Separate Statement, No. 29-32.) Plaintiff has offered evidence that she pursued a workers compensation remedy because of Defendant Henry’s constant sexual harassment and the physical impact of his retaliatory conduct in response to her rebuff of his predations.  (Plaintiff’s Separate Statement, No. 19-20, 28.)  These facts reveal a triable issue of material fact regarding whether Plaintiff is entitled to equitable tolling during her workers compensation leave, making her DFEH complaint timely when it was submitted on September 24, 2019.  As a result, Defendants are not entitled to summary adjudication of Plaintiff’s claims based on the argument that her exhaustion of administrative remedies was untimely. 

Further, the continuing violation doctrine offers an independent basis for concluding that Defendants’ limitations argument should be rejected.  Plaintiff contends that the continuing violation doctrine applies to shield Plaintiff from the statute of limitations. Plaintiff argues that she subsequently testified, in that same deposition, that she was subjected to additional sexual harassment from Defendants beginning in November of 2019, when she returned to work. (Plaintiff’s Response to Separate Statement No. 50.) Plaintiff testified that she continued working for four months while still being subjected to allegedly hostile activity by Defendants before being forced to stop working on the orders of her physician. (Plaintiff’s Deposition pp. 134:11-24; see, e.g., RSS No. 67.)

            In the Court’s estimation, this evidence is sufficient to create a triable issue of material fact as to whether there were continuing incidents of sexual harassment which would toll the statute of limitations. As our Supreme Court has stated:

“[W]hen an employer engages in a continuing course of unlawful conduct under the FEHA ... and this course of conduct does not constitute a constructive discharge, the statute of limitations begins to run, not necessarily when the employee first believes that his or her rights may have been violated, but rather, either when the course of conduct is brought to an end, as by the employer's cessation of such conduct or by the employee's resignation, or when the employee is on notice that further efforts to end the unlawful conduct will be in vain. Accordingly, an employer who is confronted with an employee seeking ... relief from ... harassment may assert control over its legal relationship with the employee either by accommodating the employee's requests, or by making clear to the employee in a definitive manner that it will not be granting any such requests, thereby commencing the running of the statute of limitations.”

(Richards, supra, 26 Cal.4th at pp. 823-24.) A plausible characterization of the facts presented is that Defendant Henry engaged in a campaign of harassment which continued through Plaintiff’s leave of absence she took because of her injuries from that harassment, and that the pattern of harassment immediately resumed once she returned to work. As all inferences must be drawn in favor of the non-moving party on a motion for summary judgment, the Court finds that Plaintiff has satisfied her evidentiary burden. Summary adjudication is therefore not available to Defendants on this basis.

2.      Negligent Supervision

            Defendants argue that Plaintiff’s seventh cause of action for negligent supervision and retention is without merit because the statute of limitations has run. A claim for negligent supervision has a two-year statute of limitations. (Code Civ. Proc. § 335.1.) Defendants contend that the statute of limitations has run because, as asserted above, the last possible incident of sexual harassment was no later than March 5, 2018, while the Complaint was filed in October of 2020. However, as stated above, Plaintiff has offered evidence of additional sexual harassment and retaliation resuming in November 2019, only eleven months before the Complaint was filed. Plaintiff has therefore established that there is a triable issue of material fact as to the timeliness of Plaintiff’s negligent supervision claim. Summary adjudication is therefore not available on this cause of action on this basis.

Merits: First Cause of Action (Sexual Harassment)

            Defendants move for summary adjudication on the merits of the first cause of action for sexual harassment.

To prevail on a claim of harassment via a hostile work environment under the Fair Employment and Housing Act, an employee must show that (1) they are a member of a protected class; (2) that they were subjected to unwelcome harassment; (3) that the harassment was based on the employee’s protected status; (4) the harassment unreasonably interfered with the employee’s work performance by creating an intimidating, hostile, or offensive work environment; and (5) defendants are liable for the harassment. (Gov. Code § 12940(a).) The complained-of conduct must be sufficiently severe or pervasive to alter the conditions of employment to create a work environment that qualifies as hostile or abusive to an employee because of their protected status. (Gov. Code § 12940(j)(1).)

Defendants argue that Plaintiff cannot prevail in this claim because the conduct alleged by Plaintiff does not rise to the level of severity or pervasiveness sufficient to constitute actionable harassment. Defendants assert that, according to Plaintiff, “[a]t worst, Mr. Henry allegedly made inappropriate comments in the workplace.” (Motion p. 15:14-15.) This contention ignores other allegations in the Complaint, such as requiring Plaintiff to lift a heavy roll-up door by herself, refusing to hire additional sanitation workers to support Plaintiff, denial of a handicap parking spot, and issuing Plaintiff a defective chair. (See Complaint ¶¶ 14, 16, 21.) Thus, Defendants fail to address the entirety of the allegations in the Complaint, which is grounds for denial of summary adjudication, (FPI Development, Inc. v. Nakashima (1991) 231 Cal. App. 3d 367, 381-82.) Defendants have thus failed to carry their burden to establish that Plaintiff’s first cause of action is without merit. The burden of proof therefore does not shift to Plaintiff to establish a triable issue of fact, and Defendants are not entitled to summary adjudication of this cause of action.

Accordingly, Defendants’ Motion for Summary Adjudication is DENIED as to the first cause of action.

Merits: Second Cause of Action (Failure to Prevent)

            Defendants move for summary adjudication on the merits of the second cause of action for failure to prevent sexual harassment.

            Government Code section 12940 makes it unlawful for an employer to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring. (Gov. Code § 12940(k).)

Defendants contend that reasonable steps were taken to prevent Plaintiff from being harassed, and that “there is simply nothing else that the Creamery could have done.” Defendants contend that having a comprehensive zero-tolerance policy against workplace harassment (SSUMF Nos. 3-5) and investigating Plaintiff’s DFEH Complaint (Nos. 39-44), even though the allegations could not be substantiated, constituted “all reasonable steps.” Defendants cite no authority supporting this position, instead inviting the Court to take their assertions as true. Defendants are not entitled to this presumption on a motion for summary judgment, where all reasonable inferences must be drawn in favor of Plaintiff. The Court therefore finds that Defendants have not carried their burden of demonstrating that the second cause of action is without merit on this basis. The burden of proof therefore does not shift to Plaintiff to establish a triable issue of fact, and Defendants are not entitled to summary adjudication of this cause of action.

            Accordingly, Defendants’ Motion for Summary Adjudication is DENIED as to the second cause of action.

Merits: Third Cause of Action (Retaliation)

            Defendants move for summary adjudication on the merits of the third cause of action for retaliation under FEHA.

The California Supreme Court has adopted the federal burden-shifting test for assessing employment discrimination claims. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354.) "[I]n order to establish a prima facie case of retaliation under the FEHA, a plaintiff must show (1) he or she engaged in a 'protected activity,' (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer's action. [Citations.] Once an employee establishes a prima facie case, the employer is required to offer a legitimate, nonretaliatory reason for the adverse employment action. [Citation.] If the employer produces a legitimate reason for the adverse employment action, the presumption of retaliation '" 'drops out of the picture, '"' and the burden shifts back to the employee to prove intentional retaliation." (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4^th 1028, 1042.)

"In responding to the employer's showing of a legitimate reason for the complained-of action, . . . '" . . . the employee' "must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them 'unworthy of credence,' [citation], and  hence infer 'that the employer did not act for the [ . . . asserted] non-discriminatory reasons.' [Citations.]" '" '" (McRae v. Department of Corrections & Rehabilitation (2006) 142 Cal.App.4th 377, 388-389.) "The plaintiff must do more than raise the inference that the employer's asserted reason is false. '[A] reason cannot be proved to be "a pretext for discrimination" unless it is shown both that the reason was false, and that discrimination was the real reason.' [Citation.] If the plaintiff produces no evidence from which a reasonable fact finder could infer that the employer's true reason was discriminatory, the employer is entitled to summary judgment. [Citation.]" (Hicks v. KNTV Television, Inc. (2008) 160 Cal.App.4th 994, 1003.)

"Although an employee's evidence submitted in opposition to an employer's motion for summary judgment is construed liberally, it 'remains subject to careful scrutiny.' [Citation.] The employee's 'subjective beliefs in an employment discrimination case do not create a genuine issue of fact; nor do uncorroborated and self-serving declarations.' [Citation.] The employee's evidence must relate to the motivation of the decision makers and prove, by nonspeculative evidence, 'an actual causal link between prohibited motivation and termination.'" (Featherstone v. Southern California Permanente Medical Group (2017) 10 Cal.App.5th 1150, 1159.)

            Defendants contend that Plaintiff cannot prevail on this claim because the complained-of conduct did not constitute adverse employment actions.

An adverse employment action must materially affect the terms, conditions, or privileges of employment to be actionable. (Yanowitz, supra, 36 Cal.4th at 1052.) However, a pattern of systematic injuries that do not individually affect the terms, conditions, or privileges of employment and that may not, individually, constitute adverse employment actions may constitute an adverse employment action collectively. (Id. at 1055-56.)

Defendants spend significant time addressing each of the alleged acts of retaliation, including (1) a failure to hire additional employees, (SSUMF Nos. 55-56); (2) an unreasonably heavy roll-up door that Plaintiff was required to operate herself (SSUMF Nos. 51-54); (3) damage to Plaintiff’s uniform (SSUMF Nos. 58-60); (4) replacement of nylon mops with cotton mops, (SSUMF No. 57); (5) issues with Plaintiff’s FMLA (6) and overtime, (SSUMF Nos. 19-24; 80-81); and Plaintiff’s (7) parking spot and (8) seat, (SSUMF Nos. 65, 68-70, 72). Defendants contend that each of these acts either did not constitute an adverse employment action, that Plaintiff’s complaints were “unfounded,” or that the issue was resolved. However, Defendants do not address whether these actions, taken collectively, could constitute an adverse employment action, whether they were eventually each resolved or not. As Plaintiff’s third cause of action expressly includes this theory of liability (Complaint ¶ 108), Defendants have once again failed to address all of the allegations in the Complaint. Defendants are therefore not entitled to summary adjudication on this cause of action. (FPI Development, Inc. v. Nakashima (1991) 231 Cal. App. 3d 367, 381-82.)

            Accordingly, Defendants’ Motion for Summary Adjudication is DENIED as to the third cause of action.

Merits: Fourth Cause of Action (Failure to Provide Reasonable Accommodations)

            Defendants move for summary adjudication on the merits of the fourth cause of action for failure to provide reasonable accommodations.

            Under Government Code section 12940(m), an employer has a duty to make “reasonable accommodation for the known physical or mental disability of an . . . employee.” (Gov. Code § 12940(m).) To prevail on this cause of action, a plaintiff must prove that “‘(1) the plaintiff has a disability covered by the FEHA; (2) the plaintiff is a qualified individual (i.e., he or she can perform the essential functions of the position); and (3) the employer failed to reasonably accommodate the plaintiff’s disability.[Citation.]’ ” (Hernandez v. Rancho Santiago Cmty. College Dist. (2018) 22Cal.App.5th 1187, 1193-1194.) “Under the FEHA, ‘reasonable accommodation’ means ‘a modification or adjustment to the workplace that enables the employee to perform the essential functions of the job held or desired.’” (Cuiellette v. City of Los Angeles (2011) 194 Cal.App.4th 757, 766.) “‘Ordinarily, the reasonableness of an accommodation is an issue for the jury.’” (Prilliman v. United Air Lines, Inc. (1997) 53 Cal.App.4th 935, 954.)

            Defendants contend that Plaintiff was provided reasonable accommodations for all her disabilities. Defendants argue that each of Plaintiff’s requests for leave were honored (SSUMF Nos. 21, 25-27, 29, 32, 76) and that Plaintiff’s work restrictions were accommodated when she returned to work in November of 2019. (SSUMF Nos. 64, 67, 72.) Defendants also argue that Plaintiff did not request a handicap parking spot nor indicate that she had a work restriction related to parking, only as to having to climb stairs, and thus the lot which Plaintiff was provided constituted a reasonable accommodation. (SSUMF No. 72.) Further, Defendants argue that, if Plaintiff had a handicap placard, she had access to handicap parking spots and did not need permission to use them. (SSUMF No. 75.) Defendants also assert that, although Plaintiff did not have any specific restrictions regarding her stool, a replacement stool was provided when Plaintiff requested it. (SSUMF No. 68.) In light of this evidence, the Court finds that Defendants have met their burden to establish that Plaintiff’s fourth cause of action is without merit. The burden therefore shifts to Plaintiff to establish a triable issue of material fact in this respect.

            In opposition, Plaintiff contends that Defendants did not actually provide reasonable accommodations. Plaintiff principally contends that Defendants revoked her access to the handicap parking spot, and that she did not, in fact, receive a replacement chair. Plaintiff’s Separate Statement does not directly cite the responsive material supporting these contentions. However, a closer inspection of Plaintiff’s deposition (extensively cited in the Separate Statement), provided as Plaintiff’s Exhibit 5, includes sworn testimony from Plaintiff that she was “put out in the general parking, which was about a quarter mile round trip to [her] work area.” (Plaintiff’s Exh. 5. p. 111:11-15.) Plaintiff also directly stated that she “was not provided with a different chair.” (Id. p. 112:24-25.) The Court finds that this sworn deposition testimony is sufficient to establish a triable issue of material fact as to whether Defendants provided reasonable accommodations as required. Defendants are therefore not entitled to summary adjudication on this cause of action.

            Accordingly, Defendants’ Motion for Summary Adjudication is DENIED as to the fourth cause of action.

Merits: Fifth Cause of Action (Failure to Engage in Interactive Process)

            Defendants move for summary adjudication on the merits of the fourth cause of action for failure to engage in the interactive process.

            Under Government Code section 12940 (n), it is an unlawful employment practice, unless based on a bona fide occupational qualification or on applicable security regulations established by the United States or the State of California, “for an employer . . . to fail to engage in a timely, good faith, interactive process with the employee . . . to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee . . . with a known physical or mental disability or known medical condition.”

            Defendants contend that this cause of action survives or fails alongside the fourth cause of action. As the Court has found that a triable issue of fact exists as to the fourth cause of action, a triable issue of fact likewise exists as to this cause of action.

            Accordingly, Defendants’ Motion for Summary Adjudication is DENIED as to the fifth cause of action.

Merits: Sixth Cause of Action (Whistleblower Retaliation)

            Defendants move for summary adjudication on the merits of the sixth cause of action for violation of Labor Code section 1102.5

            Labor Code section 1102.5(b) states:

An employer, or any person acting on behalf of the employer, shall not retaliate against an employee for disclosing information, or because the employer believes that the employee disclosed or may disclose information, to a government or law enforcement agency, to a person with authority over the employee or another employee who has the authority to investigate, discover, or correct the violation or noncompliance, or for providing information to, or testifying before, any public body conducting an investigation, hearing, or inquiry, if the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation, regardless of whether disclosing the information is part of the employee’s job duties.

            Defendants contend that the only conduct which qualifies as disclosing a violation of law was Plaintiff’s DFEH Complaint, and that none of Defendants’ actions after the DFEH Complaint was filed constitute adverse employment actions. As above, Defendants do not address whether the entirety of Defendants’ conduct, taken collectively, could constitute an adverse employment action, as alleged in the Complaint. (Complaint ¶¶ 108, 183.) The scope of the issues in a motion for summary judgment or adjudication is delimited by the pleadings. (FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381-82.) Defendants have therefore failed to demonstrate that Plaintiff cannot prevail on this cause of action. The burden of proof therefore does not shift to Defendants.

            Accordingly, Defendants’ Motion for Summary Adjudication is DENIED as to the sixth cause of action.

Merits: Seventh Cause of Action (Negligent Supervision and Retention)

            Defendants move for summary adjudication on the merits of the seventh cause of action for negligent supervision and retention.

            “Negligence liability will be imposed on an employer if it ‘knew or should have known that hiring the employee created a particular risk or hazard and that particular harm materializes.’” (Phillips v. TLC Plumbing, Inc. (2009) 172 Cal.App.4th 1133, 1139.) Liability for negligent supervision and/or retention of an employee is one ofdirect liability for negligence, not vicarious liability.” (Delfino v. Agilent Technologies, Inc. (2006) 145 Cal.App.4th 790, 815.) “To establish negligent supervision, a plaintiff must show that a person in a supervisorial position over the actor had prior knowledge of the actor’s propensity to do the bad act.” (Z.V. v. County of Riverside (2015) 238Cal.App.4th 889, 902.)

            Defendants contend that the Creamery had no reason to know that Defendant Henry posed a particular risk or hazard to female employees. Defendants argue that the only prior complaint of sexual harassment was made by another former associate, Stephanie Cruise, whose claims were rejected by an arbitrator. (SSUMF Nos. 45-46.) Defendants contend that no other complaints were made against Defendant Henry during his employment. (SSUMF No. 49.) Defendants have therefore offered evidence that Plaintiff cannot prevail on this cause of action because Plaintiff cannot establish that the Creamery knew or should have known of the risk of retaining Defendant Henry. The burden now shifts to Plaintiff to establish a triable issue of material fact.

            In opposition, Plaintiff offers considerable evidence that she complained to multiple senior executives during her employment regarding Defendant Henry, including a contention that she brought the issue to the Vice President of the West Coast, Robin Dubuc, in 2016. (RSS No. 37.) Thus, Plaintiff has offered evidence that the corporate Defendant was aware of the risk or hazard posed by Defendant Henry. Plaintiff has therefore established a triable issue of fact in this respect, and Defendants are therefore not entitled to summary adjudication on this cause of action.

            Accordingly, Defendants’ Motion for Summary Adjudication is DENIED as to the seventh cause of action.

Merits: Eighth Cause of Action (Intentional Infliction of Emotional Distress)

            Defendants move for summary adjudication of the eighth cause of action for intentional infliction of emotional distress.

“The elements of the tort of intentional infliction of emotional distress are:  ‘“(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress;   (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct. …” Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.’ [Citation.]” (Citation omitted.) “It is not enough that the conduct be intentional and outrageous. It must be conduct directed at the plaintiff, or occur in the presence of a plaintiff of whom the defendant is aware.” 

(Catsouras v. Department of California Highway Patrol (2010) 181 Cal.App.4th 856, 874-875.) The defendant’s conduct must be “directed primarily” at the plaintiffs, “calculated to cause them severe emotional distress,” or “done with knowledge of their presence and of a substantial certainty that they would suffer severe emotional injury.” (Christensen v. Superior Court (1991) 54 Cal.3d 868, 906.) 

            Defendants first contend that this cause of action is preempted by California’s Worker’s Compensation Act, pursuant to Labor Code sections 3600 and 3602. This contention is not well-taken. There is an extensive body of case law stating that the tort of intentional infliction of emotional distress may be asserted in the employment context when the actionable conduct forms the basis of a FEHA violation. (See Light v. Cal. Dep’t. of Parks & Rec. (2017) 14 Cal.App.5th 75, 98.) Here, Plaintiff’s Complaint expressly incorporates her FEHA causes of action into her emotional distress claim. (Complaint ¶ 248.) This cause of action is therefore not barred by the exclusive remedy of worker’s compensation.

            Defendants next contend that Plaintiff cannot prevail on the merits of the claim because there is no evidence that the Creamery engaged in extreme or outrageous conduct. Defendants assert that none of the conduct complained of by Plaintiff constitutes extreme or outrageous conduct on the part of the Creamery. However, mere assertions such as these unsupported by any authority are insufficient to establish that Plaintiff cannot prevail on the merits of this cause of action. Defendants have therefore failed to carry their evidentiary burden, and the burden of proof does not shift to Plaintiff to establish a triable issue of fact. Defendants are therefore not entitled to summary adjudication on this cause of action.

            Accordingly, Defendants’ Motion for Summary Adjudication is DENIED as to the eighth cause of action.

Punitive Damages

            Defendants move for summary adjudication on Plaintiff’s claim for punitive damages on the grounds that Plaintiff’s claim fails as a matter of law.

            To maintain a claim for punitive damages, a plaintiff must establish by clear and convincing evidence that a defendant acted with fraud, malice, or oppression. (Code Civ. Proc. § 3294.) Punitive damages may arise against an employer for the conduct of an employee when it is established that an officer, director, or managing agent either commit the act themselves, or ratify the act. (White v. Ultramar, Inc. (199) 21 Cal.4th 563, 572; College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 726.)

            Defendants first contend that Plaintiff’s allegations “simply do not rise to the kind of despicable or reprehensible conduct that would constitute fraud, oppression, or malice.” This conclusory assertion, again unsupported by any authority, is entirely insufficient to meet Defendants’ burden on summary judgment. Defendant’s next contention that there was no wrongdoing, knowledge, or ratification by an officer, director, or managing agent of the corporation is similarly insufficient. Defendants’ contention that Defendant Henry was not an officer, director, or managing agent is not sufficient to demonstrate that Plaintiff cannot produce evidence establishing wrongdoing, knowledge, or ratification by someone who is an officer, director, or managing agent. Defendants have failed to meet their evidentiary burden to establish that Plaintiff is not entitled to punitive damages. The burden does not shift to Plaintiff to establish a triable issue of fact on this question.

            Accordingly, Defendant’s Motion for Summary Adjudication is DENIED as to punitive damages.

Conclusion

            Accordingly, Defendants’ Motion for Summary Adjudication is DENIED.

CONCLUSION:

            Accordingly, Defendants’ Motion to Seal is DENIED.

            Defendants’ Motion for Summary Judgment is DENIED.

            Defendants’ Motion in the Alternative for Summary Adjudication is DENIED.

            Moving parties to give notice.

IT IS SO ORDERED.

Dated: February 2, 2023                     ___________________________________

                                                                                    Theresa M. Traber

                                                                                    Judge of the Superior Court

            Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.