Judge William A. Crowfoot, Case Number: 22AHCV00957, Date: 2023-09-18 Tentative Ruling

Judge: William A. Crowfoot, Case: 22AHCV00957, Date: 2023-09-18 Tentative Ruling

On October 31, 2022, plaintiff Herbert Schwarz filed this action against defendants HumanGood and Steven Gowan (“Gowan”) (collectively, “Defendants”). On October 6, 2023, Plaintiff filed the operative Second Amended Complaint (“SAC”). Plaintiff asserts causes of action based on the Fair Employment and Housing Act (“FEHA”) including discrimination, harassment, retaliation, and failure to prevent discrimination, harassment and retaliation. Plaintiff also asserts causes of action for wrongful constructive termination in violation of public policy, and violation of Business and Professions Code section 17200, et seq. (“UCL”).

On December 7, 2023, Defendants filed this joint demurrer. Defendants demur to Second, Fourth, and Sixth Causes of Action on the grounds that Plaintiff fails to allege actionable harassment. Defendants also demur to the Fourth and Sixth Causes of Action to the extent that the predicate harassment claims fail. Gowan individually demurs to the Fourth Cause of Action on the grounds that there is no liability for “failure to prevent” claims and the Sixth Cause of Action on the grounds that Plaintiff seeks unrecoverable damages and lacks standing to pursue a claim against Gowan.

Plaintiff alleges he was employed by HumanGood as an IT Help Desk Analyst from October 2017 to November 2, 2020, and that Gowan was his direct supervisor. (SAC, ¶ 13.) Plaintiff alleges he was forced to resign from his position at HumanGood because of discrimination, harassment, and retaliation by Gowan, who created a hostile work environment by “repeatedly assign[ing] Plaintiff more work than any reasonable person could complete, ignor[ing[ [Plaintiff’s] objections to the overabundance of work and requests for assistance, and then pressur[ing] Plaintiff to complete an impossible number of assignments.” (SAC, ¶ 14.) Plaintiff also alleges that in a “coaching session”, Gowan gaslighted him by bringing up “purported, but false incidents of poor performance by Plaintiff”, which had never been discussed in Plaintiff’s performance evaluations, and were not actually at issue. This was done with the intent to intensify Plaintiff’s stress and anxiety. (SAC, ¶ 15.) Gowan also informed Plaintiff that he had a “personal” personnel file on him, which was “clearly a threat” and also intended to stress and intimidate Plaintiff so that Plaintiff would quit; if Defendants fired Plaintiff, it would have exposed them to a claim of obvious age discrimination. (SAC, ¶¶ 16, 18-19.)

Plaintiff alleges that the discrimination began approximately in March 2018 and that Gown repeatedly overloaded him with far more work than his younger colleagues. (FAC, ¶ 23.) When Plaintiff suggested that the work be redistributed more evenly and requested an assistant, Gowan refused and intensified the amount of work assigned to Plaintiff in retaliation (FAC, ¶¶ 24-25.) Also in retaliation for his complaints, in May 2019, Plaintiff was given a “Documented Coaching Session” (“DCS”) for no reason, in which Gowan gaslighted Plaintiff by discussing claims of poor performance which were false and had not been discussed in Plaintiff’s annual review which took place approximately one month earlier. (SAC, ¶ 27.) Plaintiff had never been informed of these purported problems before. (Ibid.) Gowan also wrote Plaintiff up for an incident for which he blamed Plaintiff, even though Plaintiff had no responsibility or influence. (Ibid.) Although Gowan said that the written report. was not an official written warning or disciplinary action, Plaintiff believed that Gowan was acting in retaliation, which furthered the hostile work environment that Plaintiff suffered. (SAC, ¶ 28.) Plaintiff also alleges that he realized that the DCS and written report purely served to harass him when Gowan informed him that this report would not be placed in a “real personnel file” but a “personal” one; Gowan informed Plaintiff that he would remove the report if there were no more incidents for a year, which Plaintiff interpreted as a threat. (SAC, ¶ 32.)

Subsequently, when the COVID-19 pandemic began, Defendants insisted that Plaintiff continue to work in person although Plaintiff was extremely concerned about getting COVID-19 because: (1) he was in the age range that was most widely and severely affected by COVID and (2) his wife has a serious ongoing medical condition. (SAC, ¶ 35.)

Plaintiff also alleges that during this timeframe, Defendants started hiring predominantly very young employees who are paid significantly less than older workers.

On November 2, 2020, Plaintiff sent his letter of resignation to Gowan. Plaintiff alleges that as a result of Defendants’ actions, he was forced into early retirement because he suffered so much stress and anxiety that he was in no condition to seek new employment. (SAC, ¶ 41.) Plaintiff claims to have lost at least 2 to 3 years of income. (Ibid.)

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context.¿ (Taylor v. City of Los Angeles Dept. of Water and Power¿(2006) 144 Cal.App.4th 1216, 1228.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.) “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.” (Hahn, supra, 147 Cal.App.4th at p. 747.)

To establish a claim for harassment, a plaintiff must demonstrate that: (1) he is a member of a protected group; (2) he was subjected to harassment because he belonged to this group; and (3) the alleged harassment was so severe that it created a hostile work environment. (See Aguilar v. Avis Rent A Car Sys., Inc. (1999) 21 Cal.4th 121.) Harassment consists of “conduct outside the scope of necessary job performance, conduct presumably engaged in for personal gratification, because of meanness or bigotry, or for other personal motives.” (Reno v. Baird (1998) 18 Cal.4th 640, 646.) Harassment does not include commonly necessary personnel management actions, such as hiring, firing, job assignments, promotion, demotion, performance evaluations, excluding from meetings, and laying off. (Thompson v. City of Monrovia (2010) 186 Cal.App.4th 860, 879.) “Harassment is distinguishable from discrimination under the FEHA. ‘[D]iscrimination refers to bias in the exercise of official actions on behalf of the employer, and harassment refers to bias that is expressed or communicated through interpersonal relations in the workplace.’” (Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 869.) To establish a hostile work environment, “‘[a] plaintiff must prove that the defendant’s conduct would have interfered with a reasonable employee’s work performance and would have seriously affected the psychological well-being of a reasonable employee and that [she] was actually offended.’” (Hope v. California Youth Authority (2005) 134 Cal.App.4th 577, 588.)

Defendants argue that Plaintiff, as in his original Complaint and FAC, fails to allege any actionable harassment and merely alleges commonly necessary personnel management actions. In Ortiz v. Dameron (2019) 37 Cal.App.5th 568, 579-580, the plaintiff raised a triable issue of fact on a summary judgment motion regarding whether she was subjected to unwelcome harassment by presenting evidence that her supervisor involuntarily transferred the plaintiff to a unit where she had little or no experience, knowing that the plaintiff would likely fail, and was not given any training and was falsely accused of sleeping on the job, a terminable offense. There was also evidence that her supervisor consistently demeaned the plaintiff and other Filipino employees, accusing those with thick accents of incompetence and criticizing their grammar. (Ibid.) Here, Plaintiff alleges that he was subjected to unreasonable amounts of work compared to his younger colleagues and was retaliated against when he requested assistance. Gowan, like the supervisor in Ortega, allegedly expected that Plaintiff would be overwhelmed and quit. In essence, Plaintiff added allegations explaining that the assignment of extra work, unfounded accusations, and overt intimidation did not constitute necessary job performance and was purposefully directed to pressure Plaintiff to quit his job. Accordingly, Plaintiff has sufficiently pled a claim for harassment and Defendants’ demurrer to the Second Cause of Action is OVERRULED.

Defendants argue that, if Plaintiff’s Second Cause of Action for harassment fails, Plaintiff’s Fourth Cause of Action for failure to prevent harassment also fails. As stated above, the Court finds that Plaintiff has sufficiently pled a claim for harassment. Therefore, HumanGood’s demurrer to the Fourth Cause of Action is OVERRULED. However, because Gowan is not Plaintiff’s employer, but merely a supervisor who cannot be held liable for a failure to prevent harassment, Gowan’s demurrer to the Fourth Cause of Action is SUSTAINED. (Gov. Code, § 12940, subd. (j)(1) [“An entity shall take all reasonable steps to prevent harassment from occurring.”])

Defendants argue that Plaintiff’s claim under the Unfair Competition Law (“UCL”) fails because he lacks standing. This argument is unpersuasive. The UCL prohibits any unlawful business practice: “As used in this chapter, unfair competition shall mean and include any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising and any act prohibited by Chapter 1 (commencing with Section 17500) of Part 3 of Division 7 of the Business and Professions Code.” (Bus. & Prof.Code, § 17200.) A claim under FEHA may therefore provide the basis for a separate and additional claim under the UCL. (Sisemore v. Master Financial, Inc. (2007) 151 Cal.App.4th 1386, 1426; see also Alch v. Superior Court (2004) 122 Cal.App.4th 339, 401.) Furthermore, injunctive and restitution are available under the UCL and Plaintiff alleges entitlement to both. (Herr v. Nestle U.S.A., Inc. (2003) 109 Cal.App.4th 779, 789; SAC, ¶¶ 122-123.) Therefore, Defendants’ demurrer to the Sixth Cause of Action is OVERRULED.

Defendants’ demurrer is OVERRULED as to the Second and Sixth Cause of Action. Gowan’s demurrer is SUSTAINED as to the Fourth Cause of Action without leave to amend. HumanGood’s demurrer is OVERRULED as to the Fourth Cause of Action.

William A. Crowfoot

Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the Court at ALHDEPT3@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.