Judge: Timothy Patrick Dillon, Case: 20STCV36560, Date: 2023-02-23 Tentative Ruling

Case Number: 20STCV36560    Hearing Date: February 23, 2023    Dept: 73

LOFTON v. CITY OF LOS ANGELES, et al. (20STCV36560)

 

Counsel for Plaintiff/opposing party:  David Cwiklo (Cwiklo Law Firm)

Counsel for Defendant/moving party:  Philip L. Reznik (Ballard Rosenberg Golper & Savitt LLP)

 

MOTION FOR SUMMARY JUDGMENT (filed 12/12/2022)

 

TENTATIVE RULING

 

The motion is denied.

 

Discussion

 

On September 24, 2020, Plaintiff Lasalle Lofton, Jr. (“Plaintiff”) filed this employment action against Defendants City of Los Angeles, Elton Howerton, and Peter German. On March 11, 2022, Plaintiff filed the First Amended Complaint (“FAC”) alleging the following causes of action: (1) race discrimination in violation of FEHA and Government Code §§ 12920, 12921, 12940(a);  (2) racial harassment, hostile work environment in violation of FEHA and Government Code § 12940(j); (3) retaliation in violation of FEHA and Government Code § 12940(h); (4) failure to prevent racial discrimination, harassment, retaliation in violation of FEHA and Government Code § 12940(k); (5) assault and battery; (6) racial discrimination, violation of Ralph Civil Rights of 1976, Civil Code §51.7, racially-motivated hate crime of assault, battery; (7) intentional infliction of emotional distress; (8) whistleblower retaliation in violation of Labor Code §§ 6310, 6400-6404, et seq., reporting workplace safety issues; (9) whistleblower retaliation in violation of Labor Code §1102.5(a), (b), (d); (10) whistleblower retaliation in violation of California Labor Code § 1102.5(a), (b), (d), preemptory whistleblower retaliation; and (11) whistleblower retaliation in violation of Labor Code § 1102.5(c), (d).

 

 

 

On 12/12/2022, Elton Howerton (“Defendant”) filed a motion for summary judgment, arguing:

·                     Plaintiff’s second cause of action for racial harassment in violation of FEHA fails because Defendant did not constitute severe or pervasive racial harassment.

¿      “Not every utterance of a racial slur in the workplace violates the FEHA or Title VII.” (Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 130; Miller v. Department of Corrections (2005) 36 Cal.4th 446. 462 [“Common sense, and an appropriate sensibility to social context ... distinguish between simple teasing or roughhousing ... and conduct which a reasonable person in the plaintiffs position would find severely hostile or abusive.”].) "[T]he law requires the plaintiff to meet a threshold standard of severity or pervasiveness." Etter v. Veriflo Corp. (1998) 67 Cal.App.4th 457, 467.

¿      Defendant’s utterance of the n-word in the context of describing an instance in which another employee used the word cannot serve as the basis of a racial harassment claim, especially considering the context that Defendant was condemning another employee for using the word.

¿      Defendant cites to various case law which discusses the difference between using a racial epithet directed at a person and using it while repeating a statement verbatim as it was used by someone else.

¿      Defendant’s participation in a joke about liking “fat bitches” cannot be reasonably construed as creating a racially hostile work environment.

¿      None of the other employees interviewed corroborated Plaintiff’ claims of racially-hostile behavior.

·                     Plaintiff’s fifth cause of action against Defendant for assault and battery fails because Defendant never touched Plaintiff nor threatened to touch Plaintiff.

¿      To prevail on his claim that Howerton assaulted him, Plaintiff must prove: (1) that Howerton intended to cause a harmful or offensive contact; and (2) that Plaintiff reasonably believed he was about to be touched in a harmful or offensive manner. CACI No. 1301; Thing v. La Chusa (1989) 48 Cal.3d 644, 649. However, words alone are insufficient to amount to an assault. Tomblinson v. Nobile (1951) 103 Cal.App.2d 266, 269.

¿      Plaintiff alleges no violent act on the part of Defendant. The allegations in the FAC are directly refuted by Plaintiff’s sworn deposition testimony. Plaintiff testified that Defendant neither touched him nor threatened to touch him.

·                     Plaintiff’s sixth cause of action fails for violation of the Ralph Civil Rights Act because Defendant neither intended nor threatened any acts of violence against Plaintiff.

¿      Under the Ralph Act, a plaintiff must establish the defendant threatened or committed violent acts against the plaintiff or their property, and a motivating reason for doing so was a prohibited discriminatory motive, or that the defendant aided, incited, or conspired in the denial of a protected right. (See CACI No. 3063; Austin B. v. Escondido Union School Dist. (2007) 149 Cal.App.4th 860, 880-881, 57 Cal.Rptr.3d 454.)

¿      Plaintiff alleges no violent act on the part of Howerton. Instead, he testified that Defendant never touched him nor threatened to touch him.

¿      The acts alleged by Plaintiff would not cause a reasonable person standing in Plaintiff’s shoes to be intimidated or perceive a threat of imminent violence, and that conclusion is not altered even if Defendant referred to Plaintiff’s “black ass.”

·                     Plaintiff’s seventh cause of action for intentional infliction of emotional distress fails because Defendant did not engage in outrageous conduct.

¿      “The elements of a prima facie case for the tort of [IIED] 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.” (Cervantez v. J. C. Penney Co. (1979) 24 Cal.3d 579, 593.)

¿      No reasonable trier of fact could conclude that Defendant’s behavior amounted to extreme or outrageous conduct

·                     Plaintiff cannot recover punitive damages from Defendant because there is no evidence that he acted with malice or conscious disregard for Plaintiff’s rights.

¿      There is not clear and convincing evidence that there is malice or oppression.

In opposition, Plaintiff argues that:

·                     There is substantial evidence of racial harassment.

¿      The new Government Code § 12923 eliminated any FEHA harassment “severe or pervasive” element. A single incident of harassing conduct is sufficient to create a triable issue regarding the existence of a hostile work environment if the conduct unreasonably interfered with the plaintiff’s work performance.

¿      The serious epithet of the N-word is sufficient to create a hostile work environment. Plaintiff puts forward evidence that Defendant repeated the n-word 10-15 times to Plaintiff. Plaintiff cites to various case law where it was found that stating the n-word in the workplace environment was particularly severe and pervasive.

·         Defendant’s conduct constitutes racially-motivated physical assault and formed the basis for actionable hostile work environment. The court cannot weigh the evidence.

o   The claim is for assault, not battery.

o   Defendant offered no admissible evidence which supports a judgment in his favor on the assault claim. Plaintiff’s supporting declaration clearly creates a triable issue of material fact. Defendant did not even submit a declaration.

·         For the same reasons as above, there is a triable issue of fact regarding the sixth cause of action for violation of Ralph Civil Rights Act.

·         There is a triable issue of fact regarding the cause of action for IIED. A workplace assault can be an intentional tort and abuse of a position which gives power can constitute outrageous conduct.

·         The causes of action for racial harassment, assault, and IIED are sufficient to support a malice and oppression finding to support punitive damages.

In reply, Defendant argues that all the claims fail.

·         Government Code  12923 did not eliminate the “severe or pervasive” requirement to establish a hostile work environment under FEHA.

·         During the alleged assault, Plaintiff has admitted that he was extremely angry, that he could not tell whether Defendant was angry, that Defendant asked Plaintiff if he had calmed down, that Defendant never threatened to touch Plaintiff, that Plaintiff was taller and heavier than Defendant, and that Plaintiff told Defendant to “back away” for Defendant’s own safety.

 

ANALYSIS

 

A.      Legal Standard for Motion for Summary Judgment

 

A party may move for summary judgment “if it is contended that the action has no merit or that there is no defense to the action or proceeding.”  (Cal. Civ. Proc. Code § 437c(a).)   “Summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.  In determining if the papers show that there is no triable issue as to any material fact, the court shall consider all of the evidence set forth in the papers, except the evidence to which objections have been made and sustained by the court, and all inferences reasonably deducible from the evidence, except summary judgment shall not be granted by the court based on inferences reasonably deducible from the evidence if contradicted by other inferences or evidence that raise a triable issue as to any material fact.”  (Id., § 437c, subd. (c).) 

 

A defendant moving for summary judgment must show “that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.”  (Code Civ. Proc., § 437c, subd. (p)(2); see also, Code Civ. Proc., § 437c, subd. (o).) 

 

“The defendant may, but need not, present evidence that conclusively negates an element of the plaintiff's cause of action.  The defendant may also present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence—as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing.  But… the defendant must indeed present evidence."  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 855 [italics in original].)   “In other words, all that the defendant need do is to show that the plaintiff cannot establish at least one element of the cause of action--for example, that the plaintiff cannot prove element¿X.”  (Id., at 853.) The court in Aguilar distilled summary judgment to “a single proposition:  If a party moving for summary judgment in any action . . . would prevail at trial without submission of any issue of material fact to a trier of fact for determination, then he should prevail on summary judgment.  In such a case . . . the ‘court should grant’ the motion ‘and “avoid a . . . trial’ rendered ‘useless’ by nonsuit or directed verdict or similar device.  (Id. at 855.) 

 

As noted in Aguilar, “the party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.”  (Aguilar, supra, 25 Cal.4th at 850.)  Thus, courts usually follow a three-step analysis: “First, we identify the issues framed by the pleadings . . . . [¶] Secondly, we determine whether the moving party’s showing has established facts which negate the opponent’s claim and justify a judgment in movant’s favor. . . . [¶] When a . . . motion prima facie justifies a judgment, the third and final step is to determine whether the opposition demonstrates the existence of a triable, material factual issue.”  (Ojavan Investors, Inc. v. Cal. Coastal Comm. (1997) 54 Cal.App.4th 373, 385 [citation and footnote omitted].) 

  

Opposing parties must present substantial evidence in order to avoid summary judgment.  (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 163.)  “In some instances…, ‘evidence may be so lacking in probative value that it fails to raise any triable issue.’”  (Whitmire v. Ingersoll-Rand Co. (2010) 184 Cal.App.4th 1078, 1083-1084.)  “A complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.”  (Hunter v. Pacific Mechanical Corp (1995) 37 Cal.App.4th 1282, 1286, disapproved on other grounds by Aguilar, supra, at 865; accord Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 780 [“‘If the plaintiff is unable to meet her burden of proof regarding an essential element of her case, all other facts are rendered immaterial.’”].) 

 

Courts “construe the moving party's affidavits strictly, construe the opponent's affidavits liberally, and resolve doubts about the¿propriety¿of granting the motion in favor of the party opposing it.’” (Unilab Corp.v. Angeles-IPA (2016) 244 Cal.App.4th 622, 636; internal citation omitted.)  “The court focuses on issue finding; it does not resolve issues of fact. The court seeks to find contradictions in the evidence, or inferences reasonably deducible from the evidence, which raise a triable issue of material fact.”  (Johnson v. United Cerebral Palsy, etc. (2009) 173 Cal.App.4th 740, 754; internal citation omitted.)    "[S]ummary judgment cannot be granted when the facts are susceptible [of] more than one reasonable inference...” (Rosas v. BASF Corp.¿(2015) 236 Cal.App.4th 1378, 1392.) 

 

 

B.      Plaintiff’s Request for Judicial Notice

 

Plaintiff requests the court to take judicial notice of the July 18, 2019 case James Pearl v. City of Los Angeles, Court of Appeal, Second Appellate District, Division 7, Case Number B285235l; Published Opinion.

 

The court grants this request pursuant to Evidence Code § 452(d).

 

C.      Plaintiff’s Evidentiary Objections

 

Plaintiff objects to Defendant’s Exhibits C, D, F–R. Plaintiff objects to all of these documents based on hearsay, lack of foundation, and lack of personal knowledge.

 

Exhibits C, D, and F–O are “Manager Notes” with interviews of different workers. Exhibits P, Q, and R are a Complaint Investigation Report, an email exchange, and disciplinary paperwork. There are no accompanying declarations of one with percipient knowledge that lays the foundation for these documents or asserts that they are business records. Thus, the Court sustains Plaintiff’s evidentiary objections pursuant to Code of Civil Procedure § 437c(d).

 

D.     Second Cause of Action for Racial Harassment, Hostile Work Environment in Violation of FEHA and Government Code § 12940(j)

 

As framed by the FAC, Plaintiff alleges that Defendant Howerton frequently used the word “nigger” and “negro” when referencing City black employees in February-March 2020. This language was used to insult, intimidate, terrorize, and harass Plaintiff, and interfered with his job performance. (FAC ¶ 74.)

 

To establish a prima facie case for¿harassment¿based on¿race, a plaintiff must show that “(1) he was a member of a protected class; (2) he was subjected to unwelcome racial¿harassment; (3) the¿harassment¿was based on¿race; (4) the¿harassment¿unreasonably interfered with his work performance by creating an intimidating, hostile, or offensive work environment; and (5) the [defendant] is liable for the¿harassment.” (Thompson v. City of Monrovia¿(2010) 186 Cal.App.4th 860, 876.)¿¿“The law prohibiting¿harassment¿is violated when the workplace is permeated with discriminatory intimidation, ridicule and insult that is sufficiently severe or pervasive to alter the¿conditions of the victim’s employment and create an abusive working environment.” (Nazir v. United Airlines, Inc.¿(2009) 178 Cal.App.4th 243, 263 [internal quotations¿and brackets¿omitted].) This must be assessed from the perspective of a reasonable person belonging to the racial or ethnic group of the plaintiff¿and is ordinarily an issue of fact. (Id.¿at p. 264.) 

 

A single incident of harassment may be enough to constitute a hostile work environment if it “unreasonably interfered with the plaintiff’s work performance or created an intimidating, hostile, or offensive working environment.”¿ (Gov. Code, § 12923, subd. (b).)  The court shall use the totality of the circumstances to determine whether there exists a hostile work environment.¿ (Gov. Code, § 12923, subd. (c).)  Where the evidence establishes that Plaintiff did not endure conduct "so severe and pervasive as to alter the conditions of his employment," summary judgement is appropriate. (McCoy v. Pacific Maritime Association (2013) 216 Cal. App. 4th 283, 294.)

 

Defendant Howerton moves for summary judgment against Plaintiff on the grounds that Defendant’s conduct was not severe and pervasive enough to alter the work environment because Defendant used the N-word only to quote a statement by someone else to condemn the language.

 

It is undisputed that Defendant used the N-word in Plaintiff’s presence when the two employees were doing a “ride-along.” Defendant puts forth evidence that Defendant used the N-word to criticize another employee who had been complaining about the promotions of two Black employees, and that Defendant’s wife had overheard the employee making racist comments, including the repeated use of the N-word. (UMF No. 8; Exh. B [Pl. Depo.] 83:5-86:08; Reznik Decl. ¶6, Exh. E [Howerton Depo.] at 12:23-15:18, 22:2-24:1.) Defendant puts forth evidence that Plaintiff testified that, after this incident, he never heard Defendant say the N-word again. (Exh. B [Pl. Depo.] 85:22-86:8.) It is undisputed that Defendant never called Plaintiff the N-word. (UMF No. 13; Exh. B. [Pl. Depo.] 135:25-136:5.)

 

Defendant argues that when Defendant purportedly asked Plaintiff if he liked “fat bitches” cannot be construed as creating a racially hostile work environment because Defendant testified that he had never heard of such the racial stereotype associated with this statement. (UMF Nos. 16-18.)

 

Defendant argues that this issue is similar to the case in the Fourth Circuit case Savage in which the court found that the repetition of the N-word read while repeating a statement verbatim did not support an inference that the defendants harbored racial animus. (Savage v. Maryland (2018) 896 F.3d 260, 277.) However, in this case, the supervisor was reading letters written by criminal suspects that contained the “N-word” and the court found that “in that distinct context and without more, no inference of a racially hostile environment can be drawn.” (Id.) Additionally, the court found that the “ordinary terms and conditions” of his employment required at least some exposure to the documents and offensive language at issue. (Id. at 276.)

 

Here, the case is distinct as there is no evidence that the terms and conditions of the employment required at least some exposure to offensive language. Further, Defendant was not engaging in a workplace duty while using the language, but instead informally using the word while discussing other employees.

 

Furthermore, Savage goes on to quote the following: “Perhaps no single act can more quickly alter the conditions of employment and create an abusive working environment than the use of an unambiguously racial epithet such as ‘nigger’ by a supervisor in the presence of his subordinates.” (Id. at 277.) (quoting Rodgers v. W.-S. Life Ins. Co., 12 F.3d 668, 675 (7th Cir. 1993).)

 

The court finds that Defendant has not met its burden. The court cannot find that, as a matter of law, the use of the N-word in front of Plaintiff is not harassing conduct, even if it was used to describe how another employee was talking. Summary judgment is inappropriate due to the factual issue of whether the conduct was sufficiently severe or pervasive.

 

Furthermore, even if Defendant had met its burden, Plaintiff puts forward evidence showing that Defendant used the N-word 10-15 times during the “ride-along,” including using the N-word to describe Black managers. (Exhibit A Lofton Decl. ¶ 12.) This “ride-along” was conducted so Defendant (Plaintiff’s manager) could conduct a field inspection of Plaintiff’s work. (Exhibit A Lofton Decl. ¶ 12.) As the use of the N-word was directed at Black managers, and Plaintiff was at the time attempting to earn a supervisor position, Plaintiff interpreted these racial slurs as to be directed at him. (Exhibit A Lofton Decl. ¶ 12.)

 

Additionally, although Plaintiff admits that Defendant never used the N-word again in front of him, Plaintiff puts forward other evidence of racially motivated statements by Defendant: (1) that Defendant stated “Can you believe a fucking jury awarded that motherfucker black [Supervisor James] Peal a $17,000,000 verdict…” (Exhibit A Lofton Decl. ¶ 16); (2) that Defendant stated “I got them in black because I knew you would like that… But because they are black, they probably won’t work” about the new appliances that were ordered (Exhibit A Lofton Decl. ¶ 10); (3) that Defendant stated “Oh, you like them thick? Just like your women. You like them big, fat bitches, don’t you?” in front of a room of other employees (Exhibit A Lofton Decl. ¶ 11.); and (4) that during the alleged altercation between Plaintiff and Defendant, Defendant stated “I hate to get into it with your big black ass.” (Exhibit A Lofton Decl. ¶ 21.)

 

Thus, even though Defendant did not meet his initial burden, this evidence additionally raises a triable issue as to whether the conduct was sufficiently severe or pervasive.

 

Summary judgment as to the second cause of action is denied.

 

E.      Fifth Cause of Action: Assault and Battery

 

As framed by the FAC, Plaintiff alleges that Defendant Howerton verbally assaulted him by calling Plaintiff a “fucking pussy,” then following Plaintiff in a hostile, raised voice threatening him stating, “I hate to get into it with your big black ass.” (FAC ¶ 110.)

 

“The essential elements of a cause of action for assault are: (1) defendant acted with intent to cause harmful or offensive contact, or cause plaintiff to fear such contact; (2) plaintiff reasonably believed [he or] she was about to be touched in a harmful or offensive manner or it reasonably appeared to plaintiff that defendant was about to carry out the threat; (3) plaintiff did not consent to defendant’s conduct; (4) plaintiff was harmed; and (5) defendant’s conduct was a substantial factor in causing plaintiff’s harm.” (Herrick v. Quality Hotels, Inns, & Resorts, Inc. (1993) 19 Cal.App.4th 1608, 1617; So v. Shin (2013) 212 Cal.App.4th 652, 668-669.)

 

Defendant argues that this cause of action fails because Plaintiff testified that Defendant neither touched him nor threatened to touch him, and that Plaintiff was angry during this altercation and that Plaintiff told Defendant that he should “back away for his own safety.” (Exhibit B [Plaintiff’s Depo.] 91:12-92:9, 146:8-9, 155:25-156:1.) Defendant argues that, based on these facts, Plaintiff had no reasonable basis to believe that Defendant would touch him.

 

However, the evidence that Plaintiff was angry and that Defendant did not touch or threaten to touch Plaintiff are not sufficient to prove that Defendant did not assault Plaintiff. Defendant has not shown that there is no evidence that Defendant’s actions did not place Plaintiff in apprehension of an immediate or harmful contact. Thus, Defendant has not met his burden.

 

Furthermore, even if Defendant had met its burden, Plaintiff submits his declaration which states that Defendant told him to “don’t be a fucking pussy.” When Plaintiff got up and walked outside the office to get away from Defendant, Defendant followed him outside and came physically within 18 inches of Plaintiff’s face, stating, “Hey you big motherfucker, have you calmed the fuck down?” (Exhibit A Lofton Decl. ¶ 21.) Plaintiff then states that Defendant stated in an aggressive raised voice that “I hate to get into it with your big black ass.” (Exhibit A Lofton Decl. ¶ 21.)

 

 Notably, Defendant does not submit a personal declaration contradicting this instance. Contrary to Defendant’s assertion that it was just “words alone” that caused the assault, Plaintiff here points to overt acts, namely getting up and following Plaintiff and getting close to his face in a loud voice. A reasonable trier of fact could find that these actions constituted assault.

 

The court denies summary judgment as to this cause of action.

 

F.       Sixth Cause of Action: Violation of the Ralph Civil Rights Act

 

As framed by the FAC, Plaintiff alleges that Defendant Howerton engaged Plaintiff in a racially-motivated physical assault. (FAC ¶ 113.)

 

The Ralph Civil Rights Act states that “All persons…have the right to be free from any violence, or intimidation by threat of violence, committed against their persons or property… on account of [their race].” (Cal. Civil Code § 51.7(b)(1).)

 

Defendant argues that this claim fails because, as Defendant argued above, Defendant did not commit violence or threaten violence, and Defendant’s actions would not cause a reasonable person standing in Plaintiff’s shoes to be intimidated or perceive a threat of imminent violence.

 

However, as also discussed above, Defendant has not met its burden of showing that no reasonable person would not feel threatened by imminent violence based on Defendant’s conduct. As mentioned above, Plaintiff stated that Defendant followed him out of his office and came within 18 inches of him, yelling “Hey you big motherfucker, have you calmed the fuck down?...I hate to get into it with your big black ass.” (Exhibit A Lofton Decl. ¶ 21.)

 

Even if Defendant had met his burden, Plaintiff’s evidence creates a triable dispute of material fact as to whether Defendant’s conduct was “intimidation by threat of violence.”

 

The court denies summary judgment as to this cause of action.

 

G.     Seventh Cause of Action: Intentional Infliction of Emotional Distress

 

As framed by the FAC, Plaintiff alleges that Defendant Howerton’s racially-motivated harassment and racially-motivated assault constituted IIED. (FAC ¶ 122-123.)

 

“The elements of a prima facie case for the tort of [IIED] 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.” (Cervantez v. J. C. Penney Co. (1979) 24 Cal.3d 579, 593.

 

Behavior may be considered outrageous if defendant abuses a relation or position that gives defendant actual or apparent authority over plaintiff, or power to affect plaintiff's interests. [See Cole v. Fair Oaks Fire Protection Dist. (1987) 43 C3d 148, 156.)

 

Defendant argues that Plaintiff’s seventh cause of action fails because the use of the N-word while quoting what other employees said was not sufficient to rise to the level of extreme and outrageous conduct.

 

However, this argument does not reach the level of proving that Defendant’s conduct did not rise to the level of extreme and outrageous. Thus, Defendant fails to meet his burden. Even if Defendant had met his burden, considering the accusations outlined above in Plaintiff’s evidence, and considering the power dynamic between Defendant (Plaintiff’s supervisor) and Plaintiff, the court finds that a jury could reasonably conclude that Defendant’s conduct was sufficiently extreme and outrageous.

 

The court denies summary judgment as to this cause of action.

 

H.     Punitive Damages

 

A recovery of punitive damages under Civil Code § 3294 requires "clear and convincing evidence that the defendant has been guilty of oppression, fraud or malice." Under CCP § 437c(f)(l), a party may move for summary adjudication if the party contends that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code. A claim for punitive damages is properly the subject of a motion for summary adjudication, although a grant of summary adjudication in this area must cover the entire claim. (Catalano v. Superior Ct. (2000) 82 Cal.App.4th 91, 96-97.) 

 

The FAC seeks punitive damages for Defendant’s “intentional, deliberate harassment.” (FAC ¶ 156.)

 

Defendant argues that Plaintiff cannot recover punitive damages because Plaintiff does not have “clear and convincing evidence” demonstrating malice or oppression.

 

The Court finds that, looking at the evidence addressed above and viewing the evidence in the light most favorable to Plaintiff, that the evidence could support a finding of oppression or malice. Thus, there is a triable issue of material fact.

 

The court denies summary judgment as to this cause of action.