Judge Timothy B. Taylor, Case 37-2020-00031025-CU-OE-CTL 2023-10-06 Tentative Ruling

Judge: Timothy B. Taylor, Case: 37-2020-00031025-CU-OE-CTL, Date: 2023-10-06 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - October 05, 2023

10/06/2023 01:30:00 PM C-72 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Timothy Taylor

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Civil - Unlimited Other employment Summary Judgment / Summary Adjudication (Civil) 37-2020-00031025-CU-OE-CTL AVORH VS SAN DIEGO COMMUNITY COLLEGE DISTRICT [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion for Summary Judgment and/or Adjudication, 06/30/2023

Tentative Ruling on Motion for Summary Adjudication Avorh v. SDCCD, Case No. 2020-31025 Oct. 6, 2023, 1:30 p.m., Dept. 72 1. Overview and Procedural Posture.

This is a race/national origin discrimination case arising out of plaintiff's 24 years as a professor of political science in the SDCCD. For further background, the court incorporates part 1 of the minutes from March 4, 2022. ROA 55. On that day, the court partially granted SDCCD's motion for summary judgment/adjudication. A few weeks later, the parties answered ready at the TRC (ROA 58-61). The court believed the case would go to trial on the claims not summarily adjudicated; the parties filed extensive motions in limine and oppositions thereto. ROA 63-72, 78-88. But a few days before the April 8, 2022 trial call, plaintiff sought leave to file a first amended complaint adding claims and theories. ROA 73. The court was left with little choice but to vacate the trial date and set the motion for leave to amend on calendar as a noticed motion. ROA 93-96. After full briefing and a hearing on July 22, 2022, the court granted the motion and re-set the case for trial. ROA 111-115.

Plaintiff thereafter filed the FAC. ROA 117. SDCCD demurred to the newly added 'failure to prevent harassment' claims, setting the hearing for Sept. 30, 2022. ROA 119-123. When there was no timely opposition, the court published a tentative ruling sustaining the demurrer with leave to amend. ROA 126. Plaintiff's counsel then appeared ex parte, seeking a continuance and consideration of tardily filed opposition papers. ROA 127-133. The court denied the request, and later confirmed the tentative ruling. ROA 134, 137.

Plaintiff thereafter filed the SAC. ROA 138. SDCCD demurred again. ROA 141-144. Plaintiff filed opposition. ROA 145-147. SDCCD filed reply. ROA 148-149. The court reviewed the papers, and issued a ruling following a hearing on Jan. 20, 2023. ROA 153.

The operative TAC was later filed. ROA 154. SDCCD answered. ROA 162. During this timeframe, the case was set for trial in October of 2023. ROA 158, 164.

SDCCD filed the present motion for summary adjudication on June 30, 2023. ROA 166-170. The Calendar No.: Event ID: TENTATIVE RULINGS

2988532 48 CASE NUMBER: CASE TITLE: AVORH VS SAN DIEGO COMMUNITY COLLEGE DISTRICT 37-2020-00031025-CU-OE-CTL motion attacks almost all of the TAC, on grounds that the claims are time-barred and without merit.

Plaintiff filed opposition, and SDCCD filed reply. ROA 189-197, 200-204. Plaintiff also filed a 'reply to defendant's objections.' ROA 205-206. The court has reviewed the briefing – including plaintiff's unauthorized sur-reply – and no further submissions are authorized in connection with this motion. The necessity of hearing this motion gave rise to another trial continuance, this time to November 9, 2023.

ROA 183-187.

2. Applicable Standards.

A. The court hereby incorporates part 2A of the minutes from March 4, 2022 (ROA 55).

B. An employer may be liable for the harassment committed by 'nonemployees' if the employer knows or should have known of the conduct and fails to take immediate and appropriate corrective action. Gov.

Code § 12940(j)(1). To establish a prima facie case of a hostile work environment, the plaintiff must show that (1) he is a member of a protected class; (2) he was subjected to unwelcome harassment; (3) the harassment was based on his protected status; (4) the harassment unreasonably interfered with his work performance by creating an intimidating, hostile, or offensive work environment; and (5) defendants are liable for the harassment. Oriz v. Dameron Hospital Assn. (2019) 37 Cal.App.5th 568, 581.

C. Under the FEHA, it is also unlawful for an employer 'to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring.' Gov. Code § 12940(k).

3. Evidentiary Objections.

Plaintiff objects to a paragraph in the declaration of Lauren Cambronero. ROA 196. The objections, however, do not comply with the formatting requirements set forth in CRC 3.1354(b)(4). Nor was a proposed order submitted for the court to rule on the objections. See CRC 3.1354(c). Accordingly, the objections are overruled.

The court declines to rule on SDCCD's objections made in its response to plaintiff's separate statement.

ROA 202. Objections may not be stated or argued in the separate statement. CRC 3.1354(b).

4. Discussion and Rulings.

The motion for summary adjudication is granted.

A. The motions for summary adjudication of issues 1-4 are granted.

'[A]n employee claiming harassment based upon a hostile work environment must demonstrate that the conduct complained of was severe enough or sufficiently pervasive to alter the conditions of employment and create a work environment that qualifies as hostile or abusive to employees because of their [protected status].' Miller v. Department of Corrections (2005) 36 Cal.4th 446, 462. To be actionable, the harassment must satisfy an objective and a subjective standard. Hope v. California Youth Authority (2005) 134 Cal.App.4th 577, 588. 'The objective severity of harassment must be judged from the perspective of a reasonable person in plaintiff's position.' Beyda v. City of Los Angeles (1998) 65 Cal.App.4th 511, 519. 'And, subjectively, an employee must perceive the work environment to be hostile.' Hope, 134 Cal.App.4th at 588.

In this case, plaintiff has failed to raise a triable issue of material fact showing that he was subjected to actionable harassment. Objectively, no reasonable juror could find the anonymous comments posted about plaintiff on the 'RateMyProfessor' website – only a few of which mention his foreign accent – to be severe or pervasive enough to create a hostile work environment. See Lyle v. Warner Bros. Television Prods. (2006) 38 Cal.4th 264, 283 ('[A]nnoying or 'merely offensive' comments...are not actionable.'); see also Atalla v. Rite Aid Corp. (2023) 89 Cal.App.5th 294, 309 ('The underlying goal of FEHA...is to provide effective measures to prevent workplace harassment.') (emphasis in original).

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2988532 48 CASE NUMBER: CASE TITLE: AVORH VS SAN DIEGO COMMUNITY COLLEGE DISTRICT 37-2020-00031025-CU-OE-CTL Subjectively, the evidence also shows that plaintiff himself did not regard the comments as creating a hostile or abusive work environment. Although plaintiff states that the comments caused 'embarrassment,' 'humiliation,' and an 'unreasonable interference with [his] work performance' (Avorh Decl., ¶¶ 5, 16), he does not explain how his work performance suffered or was otherwise made more difficult as a result. See Gov. Code § 12923(a). To the contrary, plaintiff was a tenured professor who claims he 'received no criticisms of [his] teaching skills and abilities in [his] performance reviews.' (Avorh Decl., at ¶¶ 2-3.) In reaching this conclusion, the court recognizes the Legislature's admonishment that '[h]arassment cases are rarely appropriate for disposition on summary judgment.' Gov. Code § 12923(e). But rarely is not the same as never, and here the undisputed material facts establish that the comments posted on an unaffiliated, third-party website were not sufficiently severe or pervasive to constitute actionable harassment.* B. The motions for summary adjudication of issues 5-8 are granted. 'A plaintiff cannot state a claim for failure to prevent harassment unless the plaintiff first states a claim for harassment.' M.F. v. Pacific Pearl Hotel Management LLC (2017) 16 Cal.App.5th 693, 701. Here, because plaintiff's harassment claims fail, his failure to prevent harassment claims likewise have no merit. Code Civ. Proc. § 437c(p)(2).

C. Having concluded that SDCCD is entitled to summary adjudication on grounds that the alleged harassment is not actionable, the court declines to address whether any of plaintiff's claims are time-barred. See PDK Labs. Inc. v. DEA, 362 F.3d 786, 799 (D.C. Cir. 2004) (Roberts, J., concurring in part and concurring in the judgment) (noting 'the cardinal principle of judicial restraint' that 'if it is not necessary to decide more, it is necessary not to decide more'); Compare Natter v. Palm Desert Rent Review Comm'n. (1987) 190 Cal.App.3d 994, 1001 (reversal on stated grounds made it unnecessary to resolve other contentions challenging constitutionality); Young v. Three for One Oil Royalties (1934) 1 Cal.2d 639, 647-48 (court declined to rule on matters unnecessary to resolving the case before the court, as to do so would be to provide 'dictum pure and simple').

D. The November 9 trial date is confirmed with respect to the remaining claim.

___________________________ *Plaintiff offers no evidence that the 'RateMyProfessor' website has any connection to SDCCD. The only evidence before the court is that the website is wholly unaffiliated. And the First Amendment guarantees students the right to comment upon their professors on this latter-day virtual soapbox.

Plaintiff offers no viable way for SDCCD to control this protected speech, and indeed any effort by SDCCD to do so via litigation would almost certainly be subject to a special motion to strike. See Gov.

Code § 12940(j)(1) ('In reviewing cases involving the acts of nonemployees, the extent of the employer's control and any other legal responsibility that the employer may have with respect to the conduct of those nonemployees shall be considered.').

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