RICKI DAVIS vs ONENECK IT SOLUTIONS LLC

The Court finds that the following UMFs are materially disputed: 16-18, 20-26, 29-31, 34-37, 49-53, 61, 66-68, 70-77, 79-84, 91, 93-95, 97-104, 106-110, 113, 117, 119-121, 123-130, 132-136, 142, 144-146, 148-152, 154, 156, 160, 164-162, 164-167, 169-176, 178-183, 186, 190, 192-194, 196-203, 205-209, 220, 222, 224-227, 229-236, 238-243, 248, 250, 252-255, 257-264, 266-271, 276, 278, 280-283, 285-292, 294-299, 306, 310, 312, 314-317, 319-326 and 328-336.

The Court finds the following AMFs are established and undisputed: 1-5, 6, 7, and 8-10.

The Court finds the following AMFs are established: 11-36.

Legal Principles Governing Summary Judgment/Adjudication

Summary judgment procedure is well-settled: “A party may move for summary judgment in an action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding.” (Code of Civ. Proc., § 437c, subd. (a).) A party may also move for “summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty. . . .” (Code of Civ. Proc., § 437c, subd. (f)(1).) “The court must grant the motion if all the papers submitted show that there is no triable issue as to any material fact [citation omitted]-that is, there is no issue requiring a trial as to any fact that is necessary under the pleadings and, ultimately, the law [citations omitted]-and that the moving party is entitled to a judgment as a matter of law [citation omitted].” (Aguilar v.

Atlantic Richfield Co. (2001) 25 Cal.4th 826, 855- 56, 107, internal quotation marks omitted (“Aguilar”).) “The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Id., 25 Cal.4th at p. 855.) The Court must construe the evidentiary showing, and all reasonable inferences therefrom, in the light most favorable to the opposing party. (Id., 25 Cal.4th at p. 857.)

The Court follows a three-part test in ruling on the motion:

(1) “First, . . . the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.” (Id., 25 Cal.4th at p. 850.)

(2) “Second, . . . 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.” (Ibid.)

2024CUWT025724: RICKI DAVIS vs ONENECK IT SOLUTIONS LLC

(3) “Third, . . . how the parties moving for, and opposing, summary judgment may each carry their burden of persuasion and/or production depends on which would bear what burden of proof at trial.” (Id., 25 Cal.4th at p. 851.)

In determining whether a material triable issue exists, the Court must construe the evidence offered by the moving party in support of the motion strictly and the evidence offered in opposition to the motion liberally. (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839.) Moreover, the Court is not permitted to weigh or assess the credibility of, or resolve conflicts concerning, the evidence offered in support of or opposition to the motion; conflicts in the evidence must be resolved by the trier of fact, not the Court. (Code of Civ. Proc., §437c, subd. (e); Boicourt v. Amex Assurance Co. (2000) 78 Cal.App.4th 1390, 1397, fn. 4; AARTS Productions, Inc. v. Aetna Life Ins. Co. (1986) 179 Cal.App.3d 1061, 1064.)

Ruling on Motion

Defendant has made the Court’s task in ruling on this motion more challenging because the memorandum of points and authorities cites to the exhibits, not to the UMFs. Additionally, the memorandum does not expressly identify by issue number each of the issues which are identified in the motion. Finally, plaintiff compounds these challenges by repeating them in the opposition memorandum. The combined effect of the parties’ approaches to briefing is to make it much more difficult for the Court to address each issue raised in the motion in the context of the UMFs and AMFs. These challenges notwithstanding, the Court addresses each of the issues raised in the motion in the order in which they are presented in the motion.

(1) 1st Cause of Action for Workplace Harassment Due to Age (Issue 1)

For the following reasons, the Court DENIES the motion for summary adjudication of this Cause of Action.

“To establish a prima facie case of harassment, [a plaintiff] must show that (1) she is a member of a protected class; (2) she was subjected to unwelcome harassment; (3) the harassment was based on her protected status; (4) the harassment unreasonably interfered with her work performance by creating an intimidating, hostile, or offensive work environment; and (5) defendants are liable for the harassment.” (Galvan v. Dameron Hospital Assn. (2019) 37 Cal.App.5th 549, 563.)

“’[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].’ [Citation]. ‘The harassment cannot be occasional, isolated, sporadic, or trivial; the plaintiff must show a “ ‘concerted pattern of harassment of a repeated, routine or a generalized nature.’ ” ’ [Citations].

Moreover, ‘[t]he harassment must satisfy an objective and a subjective standard. “ ‘[T]he objective severity of harassment should be judged from the perspective of a reasonable person in the plaintiff's position, considering “all the circumstances.” ... ‘ ” [Citation]. And, subjectively, an employee must perceive the work environment to be hostile. [Citation.] Put another way, “[t]he plaintiff

2024CUWT025724: RICKI DAVIS vs ONENECK IT SOLUTIONS LLC

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.” [Citation.]’ [Citation].” (Galvan v. Dameron Hospital Assn., supra, 37 Cal.App.5th at pp. 564-565.).)

In Galvan v. Dameron Hospital Assn., supra, 37 Cal.App.5th 549, the reviewing court held that the plaintiff presented sufficient evidence which would permit a reasonable trier of fact to find the employer’s agent’s conduct was motivated by Plaintiff’s national origin and age:

“As previously discussed in connection with Galvan's discrimination cause of action, Galvan presented evidence that would allow a reasonable trier of fact to find that Alvarez's conduct was based on Galvan's and the other Filipino and foreign-born unit coordinators' national origin and age. While Alvarez's statements to Roxas and Duke are not relevant to the issue of whether Galvan was subjected to unwelcome harassment insofar as she was unaware of such statements when she went out on leave, those statements are relevant to the issue of whether Alvarez's conduct was motivated by Galvan and the other Filipino and foreign-born unit coordinators' protected status.

Those statements, coupled with Alvarez's criticisms of the unit coordinators' accents, are sufficient to raise a triable issue of material fact as to whether Alvarez's treatment of Galvan and the other Filipino and foreign-born unit coordinators was motivated by their national origin and age.”

(Id., 37 Cal.App.5th at p. 564.)

In addition, the Galvan court stated:

“Turning to the merits, we have already concluded that Galvan presented evidence that would allow a reasonable trier of fact to find that a reasonable person in Galvan's position would have felt compelled to go out on leave and not return, and Galvan testified that she “felt forced out of [her] position because of the environment and the anxiety that [it] produced for [her].” Moreover, Galvan presented evidence that would allow a reasonable trier of fact to find that she and the other Filipino and foreign-born unit coordinators were subjected to a “ ‘concerted pattern of harassment of a repeated or generalized nature.’ ” (Jones v.

Department of Corrections & Rehabilitation, supra, 152 Cal.App.4th at p. 1378, 62 Cal.Rptr.3d 200.) Every time Alvarez met with the unit coordinators, she “insult[ed],” “degrad[ed],” and “humiliat[ed] them.” She consistently criticized the unit coordinators' accents and English language skills and “kept bombarding” them with negative insults. Based on the evidence presented, a reasonable trier of fact could conclude that the conduct complained of was sufficiently severe or pervasive to interfere with a reasonable employee's work performance and seriously affect the psychological well-being of a reasonable employee.

(Id., 37 Cal.App. 5th at p. 565.)

2024CUWT025724: RICKI DAVIS vs ONENECK IT SOLUTIONS LLC

Here, Defendant argues that Plaintiff’s harassment claim is based on hearsay statements made by Ward to Plaintiff’s co-workers -Perry and Chase - about Plaintiff’s age. (UMF 20, 48, AMF 49-50.) Ward denies having made the statements attributed to him by Perry and Chase. (See UMF 20 and 49, and supporting evidence). Defendant argues that, since these statements are not admissible at trial, they are not sufficient to create a material triable dispute. (Perry v. Blackwell Hawthorne, LLC (2017) 2 Cal.5th 536, 543.)

The Court has overruled Defendant’s objections to Ward’s purported derogatory statements about Plaintiff’s age, which were related to Plaintiff by Perry and Chase, because they are not being received for the truth of the matters stated by Ward or by Perry and Chase. Instead, they are received for the non-truth purpose of their effect on the listener – Plaintiff – as it relates to the claim of hostile work environment. Additionally, the statements are being offered for the non-truth purpose of Ward’s state of mind – animus against Plaintiff based on age. (See Galvan v. Dameron Hospital Assn., supra, 37 Cal.App.5th at p. 564.) Moreover, they are received for the non-truth purpose of notice to Defendant relating to the retaliation and hostile work environment claims.

Thus, the trier of fact will hear evidence from Perry and Chase that Ward made the statements, and that they communicated those statements to Plaintiff. The trier of fact also will hear Ward’s testimony denying that he made such statements. Accordingly, whether Ward actually made the age-related derogatory statements to Perry and Chase, and whether Ward harbored age-based animus against Plaintiff – are disputed material facts.

Defendant argues that Ward’s statements are isolated comments which do not establish a pervasive pattern of conduct which can be described as a hostile work environment based on ageism. “The existence of a hostile work environment depends upon the totality of the circumstances and a discriminatory remark, even if not made directly in the context of an employment decision or uttered by a nondecisionmaker, may be relevant, circumstantial evidence of discrimination.” (Govt. Code, §12923, subd. (c).) “Harassment cases are rarely appropriate for disposition on summary judgment. In that regard, the Legislature affirms the decision in Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243 and its observation that hostile working environment cases involve issues ‘not determinable on paper.’ ” (Govt. Code, §12923, subd. (e).)

“The law prohibiting harassment is violated [w]hen 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 quotation marks and citations omitted.) California has moved away from the so-called “stray remarks doctrine,” which is prevalent in the federal courts. (Reid v.

Google, Inc. (2010) 50 Cal.4th 512, 538-45.)1 Accordingly, so long as plaintiff produces admissible evidence that “the workplace is permeated with discriminatory intimidation, ridicule and insult that is sufficiently severe or pervasive to alter the conditions of . . . employment and create an abusive working environment[]”, the number of allegedly discriminatory and derogatory comments is not as important as their context under the totality of the circumstances.

2024CUWT025724: RICKI DAVIS vs ONENECK IT SOLUTIONS LLC

Here, defendant met its burden of producing evidence that Ward did not make ageist derogatory comments about Plaintiff, and that the decision to terminate Plaintiff before she completed probation was based on performance-based criteria. The burden shifted to Plaintiff to produce evidence of a material triable dispute concerning workplace harassment under the totality of the circumstances. Plaintiff has met that burden by producing evidence that (a) Ward made repeated derogatory and ageist comments about Plaintiff to co-workers Perry and Chase; (b) Defendant, acting through Ward and Ashley DeJesus, declined Plaintiff’s repeated requests for information about defendant’s expectations of Plaintiff’s performance; (c) Defendant, at first, evaluated Plaintiff’s job performance favorably; (d) after Plaintiff complained to HR, Defendant did not fully or fairly investigate the allegations that Ward engaged in hostile, ageist behavior toward Plaintiff; (e) Perry was terminated not long after she reported Ward’s hostile, ageist comments directed toward Plaintiff to Defendant; and (f) Plaintiff was terminated before expiration of her probationary period not long after both Perry and she complained to Defendant about Ward’s hostile ageist comments.

On this record, the Court finds that Plaintiff has met her burden of producing evidence of a material triable dispute concerning the First Cause of action for workplace harassment based on age. Accordingly, the Court denies the motion for summary adjudication of this cause of action.

(2) 2nd Cause of Action for Discrimination on the Basis of Age (Issue 2)

For the following reasons, the Court DENIES the motion for summary adjudication of the 2nd Cause of Action for age-based discrimination.

“In order to make out a prima facie case of age discrimination under FEHA, a plaintiff must present evidence that the plaintiff (1) is over the age of 40; (2) suffered an adverse employment action; (3) was performing satisfactorily at the time of the adverse action; and (4) suffered the adverse action under circumstances that give rise to an inference of unlawful discrimination, i.e., evidence that the plaintiff was replaced by someone significantly younger than the plaintiff.” (Sandell v. Taylor-Listug, Inc. (2010) 188 Cal.App.4th 297, 321.)

California has adopted the three-stage burden-shifting test established by the United States Supreme Court for trying employment discrimination claims that are based on the disparate treatment theory. [Citation]. Under this ‘McDonnell Douglas test,’ (1) the plaintiff must establish a prima facie case of discrimination; (2) if the plaintiff is successful, the employer must offer a legitimate nondiscriminatory reason for its actions; and (3) if the employer produces evidence on that point, the plaintiff must show that employer's reason was a pretext for discrimination.” (Trop v. Sony Pictures Entertainment, Inc. (2005) 129 Cal.App.4th 1133, 1144, referencing McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792.)

Defendant concedes that Plaintiff has made a prima facie case of age discrimination. (D’s P&As, p. 17:19-20.) Defendant argues that it had a legitimate business reason for terminating Plaintiff and that Plaintiff is unable to prove that her age was a substantial motivating factor in the decision. Defendant has produced evidence that it terminated Plaintiff before the end of her probationary period because her performance did not meet expectations. “[T]he loss of confidence in an employee . . . is a legitimate, nondiscriminatory reason for discharge.” (Arteaga

2024CUWT025724: RICKI DAVIS vs ONENECK IT SOLUTIONS LLC

v. Brink’s, Inc. (2008) 163 Cal.App.4th 327, 352.) In Trop v. Sony Pictures Entertainment, Inc., supra, 129 Cal.App.4th 1133, the court stated:

“Defendant's reasons for terminating Trop's employment were creditable on their face—her job performance did not meet Thomas's demanding standards. Indeed, Trop did not dispute that she mishandled telephone messages, took an extended vacation during a busy period of work, and returned to work late from the vacation. Defendants presented evidence that Thomas decided in November 2002 to replace Trop and solicited resumes before Trop knew she was pregnant. Thomas also expressed her dissatisfaction with Trop without knowing that Trop was pregnant. These nondiscriminatory factors constituted legitimate reasons for Thomas's decision to terminate Trop from her at-will position.” (Id., 129 Cal.App.4th at p. 1149.)

Specifically, Defendant argues that Plaintiff resisted Defendant’s sales and reporting methods. In addition, Defendant argues that Plaintiff’s sales were lacking and she failed to meet the requirements for weekly dialogues, discovery meetings, and scoping/proposal calls.

Defendant, however, has identified only Plaintiff’s alleged failure to follow the activity reporting requirements as the only UMF purporting to establish the legitimate business reason for the decision to terminate Plaintiff prior to the expiration of her reporting period. (UMF 81.) The Court disregards facts which are not identified in the separate statement. With respect to the activity reporting requirements, Defendant relies upon the following: (a) Exhibit F, which is a transcript of the deposition of Corey Livingston; (b) Exhibit J, which is an email exchange between Plaintiff and Ward dated October 23, 2023; and (c) Exhibit R, which is a “Confidential HR Conversation Record,” dated October 24, 2023. The cited evidence does not establish the purported UMF for the following reasons:

• The cited portions of the deposition of Corey Livingston provide an explanation of the activity reporting requirements generally, but it does not contain any discussion pertinent to Plaintiff’s specific performance in that regard.

• Exhibit J is a copy of an October 23, 2023, email authored by Plaintiff, which purports to explain why certain metric columns in the activity report were not filled out.

• Exhibit R is a Confidential HR Conversation Record between Plaintiff and Ashley De Jesus regarding Plaintiff’s complaint about lack of training, Ward’s derogatory and ageist statements about her, Ward’s “micromanagement” of her, and an email she received from Ward to the effect that she was not meeting expectations.

The declaration of Corey Livingston does not mention the reason for Plaintiff’s termination, only stating that they agreed with Ward’s decision. (Livingston Decl., ¶ 8) Ward’s declaration makes no mention of the reason for the termination, only that he was Plaintiff’s direct supervisor. (Ward Decl., ¶ 3) Exhibit T to the COE, referenced by the declaration of De Jesus (De Jesus Dec., ¶ 11) as showing the reason for the termination, states

2024CUWT025724: RICKI DAVIS vs ONENECK IT SOLUTIONS LLC

that Plaintiff responded with “resistance” and “outright defiance” which undermined Ward’s authority. Ward’s recommendation concluded that Plaintiff’s refusal to complete tasks and question their necessity were both “insubordinate” and “disrespectful.” (COE, Ex. T.) Rather than being factually specific, this evidence shows a cursory, summary and conclusory termination decision, not a specific, fact-based one.

The above evidence, bare of specifics though it is, demonstrates that Defendant asserts a legitimate business reason for terminating Plaintiff. Accordingly, the Court finds that Defendant has met its burden of demonstrating a legitimate business justification for terminating Plaintiff. The burden, therefore, shifts to Plaintiff to prove the offered business justification for the termination was a pretext for age discrimination.

The Court finds that Plaintiff has met her burden of producing evidence of a material triable dispute on the issue of pretext. Plaintiff has produced evidence of the following: (a) Ward, Plaintiff’s direct supervisor, repeatedly told Perry and Chase that he could not fire Plaintiff because she was a “senior citizen,” and that she was “an old woman,” “old person,” “geriatric,” and an “old person on the team”; (b) Plaintiff requested from Ward feedback, guidance and direction about expectations of her performance, but none was forthcoming; (c) Defendant initially gave Plaintiff positive performance feedback before Perry or Plaintiff complained about Ward’s hostile ageist statements concerning Plaintiff and about his negative management style; and (d) the reasons Defendant gave Plaintiff for the termination decision, such as descriptions of Plaintiff as “insubordinate,” “disrespectful,” “not a fit,” “not a cultural fit,” “resistant,” and “defiant,” are all subjective and lacking in objective criteria.

A reasonable trier of fact could conclude that the justifications provided by Defendant for Plaintiff’s termination were not legitimate, but pretextual.

For these reasons, the Court denies the motion for summary adjudication of the 2nd Cause of Action for age discrimination.

(3) 3rd Cause of Action for Retaliation in violation of FEHA (Issues 3 & 4)

In 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.” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.) “Although an employee need not formally file a charge in order to qualify as being engaged in protected opposing activity, such activity must oppose activity the employee reasonably believes constitutes unlawful discrimination, and complaints about personal grievances or vague or conclusory remarks that fail to put an employer on notice as to what conduct it should investigate will not suffice to establish protected conduct.” (Id., 36 Cal.4th at p. 1047.)

Defendant argues that Plaintiff engaged in only one protected activity under FEHA: she complained to Defendant about Ward’s hostile ageist statements as related by Perry and Chase. Defendant argues that there is no causal connection between this protected activity and Defendant’s decision to terminate Plaintiff, that is, the protected activity was not a substantial motivating factor in the decision.

2024CUWT025724: RICKI DAVIS vs ONENECK IT SOLUTIONS LLC

Generally, an employee does not need to show that the protected activity is the sole reason for the termination. “Instead, when a plaintiff-employee advances a ‘mixed-motive’ theory (i.e., a theory that an employer had both legitimate and discriminatory motives for a termination), the plaintiff must show only that [the protected activity] was a ‘substantial motivating factor’ in the challenged employment action. [Citation]. ‘[D]iscrimination, though not a ‘but for’ cause of an adverse employment action (because the employer can show it would have taken the same action in any event), might nonetheless be found to be a substantial motivating factor ....’ [Citation].

Thus, ‘[i]f triable issues of material fact exist [as to] whether discrimination was a substantial motivating reason for the employer's adverse employment action, even if the employer's professed legitimate reason has not been disputed, the FEHA claim is not properly resolved on summary judgment.’ [Citation].” (Lin v. Kaiser Foundation Hospitals (2023) 88 Cal.App.5th 712, 722.)

Defendant has produced evidence that the termination was prompted by the end of the probationary period and Plaintiff’s continued resistance in providing detailed reports. In addition, Defendant has produced evidence that, since Ward had no knowledge of Plaintiff’s complaints to DeJesus or Livingston, he could not have terminated Plaintiff based on her complaints. (UMF 176-179) Accordingly, Defendant has met its initial burden of demonstrating that the termination decision was not caused by protected activity on the part of Plaintiff. The burden shifts to Plaintiff to demonstrate the existence of a material triable issue on causation.

The Court finds that Plaintiff has met that burden. Plaintiff has produced evidence that Plaintiff’s complaint to Defendant about Ward’s hostile ageist comments, which identified Perry as a key witness, did not result in Defendant investigating the matter, including an interview with Perry. Instead, the complaint was summarily found to be unsubstantiated. (AMF 30) In addition, just days before her termination, Ward praised the quality of Plaintiff’s work and complemented her weekly report. (AMF 31) Shortly after Plaintiff complained about Ward’s age-based comments, however, Defendant began criticizing Defendant’s conduct and performance. (AMF 32) Within days of Plaintiff’s complaint, Ward prepared a recommendation to end Plaintiff’s employment. (AMF 33) Ward’s termination recommendation stated that the decision was not based on Plaintiff’s sales numbers, but “extends beyond performance metrics” and was “primarily about cultural fit and professional behavior.” (AMF 34) A reasonable trier of fact could find that the justifications for Plaintiff’s termination were pretextual, and that Plaintiff’s protected activity was a substantial motivating factor in the termination decision.

For the above reasons, the Court denies the motion for summary adjudication of the 3rd Cause of Action for retaliation.

(4) 4th Cause of Action for Failure to Prevent Discrimination, Harassment or Retaliation & 5th Cause of Action for Wrongful Termination in Violation of Public Policy (Issues 5-8)

Court DENIES the motion for summary adjudication of the 4th and 5th Causes of Action for the following reasons:

2024CUWT025724: RICKI DAVIS vs ONENECK IT SOLUTIONS LLC

It is an unlawful employment practice, unless based upon a bona fide occupational qualification, or, except where based upon applicable security regulations established by the United States or the State of California: . . . (k) For an employer, labor organization, employment agency, apprenticeship training program, or any training program leading to employment, to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring. (Gov. Code, § 12940, subd. (k).)

“An actionable claim under section 12940, subdivision (k) is dependent on a claim of actual discrimination: ‘Employers should not be held liable to employees for failure to take necessary steps to prevent such conduct, except where the actions took place and were not prevented.’ [Citation].” (Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1021, citing Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th 280, 289.)

“’[W]hen an employer's discharge of an employee violates fundamental principles of public policy, the discharged employee may maintain a tort action.’ [Citation].” (City of Moorpark v. Superior Court (1998) 18 Cal.4th 1143, 1158, citing Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167.)

Defendant argues that, since Plaintiff does not have actionable FEHA claims, the 4th and 5th Causes of Action should fail as well. As discussed above, the 1st through 3rd Causes of Action present triable issues of material fact, so summary adjudication of them is denied. Accordingly, the Court denies the motion for summary adjudication of the 4th and 5th Causes of Action for this reason alone.

(5) 6th Cause of Action for Negligent Hiring, Supervision or Retention (Issue 9)

For the following reasons, the Court DENIES the motion for summary adjudication of the 6th Cause of Action:

“California case law recognizes the theory that an employer can be liable to a third person for negligently hiring, supervising, or retaining an unfit employee.” (Doe v. Capital Cities (1996) 50 Cal.App.4th 1038, 1054.) “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.)

The following are the required elements of this cause of action:

1. The defendant hired the unfit/ incompetent employee; 2. The unfit/incompetent employee was/became unfit/incompetent to perform the work for which they were hired; 3. The defendant knew or should have known that the unfit/incompetent employee was/became unfit/incompetent and that this unfitness or incompetence created a particular risk to others; 4. The unfit/incompetent employee’s unfitness or incompetence harmed the plaintiff; and

2024CUWT025724: RICKI DAVIS vs ONENECK IT SOLUTIONS LLC

a. The defendant's negligence in hiring/ supervising/retaining the unfit/incompetent employee was a substantial factor in causing the plaintiff’s harm. (CACI 426.)

Defendant argues that there is no evidence that any of its officers or senior managers knew Ward had a propensity to cause harm to its employees. “[I]n California, an employer can be held liable for negligent hiring if he knows the employee is unfit, or has reason to believe the employee is unfit or fails to use reasonable care to discover the employee's unfitness before hiring him.” (Evan F. v. Hughson United Methodist Church (1992) 8 Cal.App.4th 828, 843.)

Defendant’s separate statement is bereft of any purported UMF which, if truly undisputed, nullifies Plaintiff’s ability to prove the negligent hiring/supervision/retention claim. Rather, Defendant points to Exhibits E and F in support of the argument that there is no material triable dispute concerning this Cause of Action. The cited portions of these exhibits, however, only relate to Ward’s management approach, statements and communication style. Livingston, to whom Ward reported, submits a declaration which omits any mention of facts establishing Defendant’s lack of knowledge of information concerning Ward’s fitness, including that pertinent to complaints by employees like Plaintiff and Perry.

Accordingly, the Court finds that Defendant has failed to meet its initial burden of proving there is no material triable dispute as to this Cause of Action. The burden does not shift to Plaintiff to produce evidence of such a material triable dispute. The motion is denied for this reason alone.

Even if the burden had shifted, however, the Court finds that Plaintiff has produced evidence establishing a material triable dispute that Defendant knew or should have known of Ward’s unfitness as a manager, but was negligent in failing to take steps to protect Plaintiff, resulting in Plaintiff’s wrongful termination and damages. Plaintiff has produced evidence that Defendant did not take appropriate action to investigate Plaintiff’s and Perry’s claims concerning Ward’s hostile ageist comments about Plaintiff, or about Plaintiff’s report that Ward declined Plaintiff’s repeated requests for guidance concerning expectations of Plaintiff’s performance. Thus, a reasonable jury could find that Defendant was provided with notice of Ward’s unfitness, but was negligent in failing to meaningfully respond to it, which resulted in harm to Plaintiff.

For the above reasons, the Court denies the motion for summary adjudication of the 6th Cause of Action for negligent hiring/supervision/retention.

(6) 7th Cause of Action for Intentional Infliction of Emotional Distress (Issue 10)

For the following reasons, the Court GRANTS the motion for summary adjudication of the 7th Cause of action for intentional infliction of emotional distress.

“A cause of action for intentional infliction of emotional distress exists when there is (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

2024CUWT025724: RICKI DAVIS vs ONENECK IT SOLUTIONS LLC

extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct. [Citations]. A defendant's conduct is ‘outrageous’ when it is so extreme as to exceed all bounds of that usually tolerated in a civilized community. [Citation]. And the defendant's conduct must be intended to inflict injury or engaged in with the realization that injury will result. [Citation].” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050, internal citations omitted.)

Defendant argues that its action of terminating Plaintiff’s probationary employment is not extreme or outrageous, or that Defendant acted with intent to cause Plaintiff harm.

A plaintiff “may pursue a claim for intentional infliction of emotional distress in the employment context where the conduct at issue violates FEHA and also satisfies the elements of the claim.” (Light v. Department of Parks & Recreation (2017) 14 Cal.App.5th 75, 101.) The Light court clarified the application of the tort of intentional infliction of emotional distress to employment claims as follows:

“As to Seals, a reasonable trier of fact could find she ostracized Light in the workplace, encouraged Light to lie to investigators, pursued Light at home and in the office to determine whether Light did so, and verbally and physically attacked Light after Light disobeyed. The trier of fact could conclude this conduct was extreme and outrageous (especially in light of Seals's supervisory position), taken for purposes of retaliation prohibited by FEHA, and intended to cause Light emotional distress. Triable issues of fact therefore preclude summary adjudication of this claim as to Seals. (See Aguilar, supra, 25 Cal.4th at p. 850, 107 Cal.Rptr.2d 841, 24 P.3d 493.)

“As to Dolinar, however, we conclude summary adjudication was proper. Even viewed most favorably to Light, the evidence shows Dolinar's conduct was not extreme, outrageous, or beyond the bounds of what we tolerate as a civilized community. (See Hecimovich v. Encinal School Parent Teacher Org. (2012) 203 Cal.App.4th 450, 476, 137 Cal.Rptr.3d 455.) Light points to evidence that Dolinar refused to listen to Light's complaints about retaliation, organized the anti-Hurley counseling session after the gun scope incident, encouraged Seals's efforts to silence Light, awarded Seals a commendation after the February 23 incident, and participated in the Department's retaliation against Light (including denying promised training and shifting Light's work location).

Even crediting this evidence, we conclude Dolinar's actions were not extreme or outrageous as a matter of law. While a reasonable trier of fact could conclude Dolinar acted improperly, and likely contributed to the Department's violation of FEHA's anti- retaliation provision, her actions are common—though ultimately misguided— supervisory actions. (See Janken, supra, 46 Cal.App.4th at p. 80, 53 Cal.Rptr.2d 741.) Dolinar also cannot be responsible for the actions of her subordinates, such as Seals, merely because she was their supervisor.

A claim for intentional infliction of emotional distress requires extreme or outrageous conduct by the defendant herself; her “responsibility” as a supervisor alone is insufficient.”

2024CUWT025724: RICKI DAVIS vs ONENECK IT SOLUTIONS LLC

(Light v. Department of Parks & Recreation, supra, 14 Cal.App.5th at p. 102.)

As the above demonstrates, not every act of age discrimination, hostile work environment or retaliation in violation of the FEHA necessarily results in facts supporting a claim for intentional infliction of emotional distress. Here, the Court finds that Defendant has met its burden of demonstrating there is no material triable dispute that (a) Defendant’s conduct was intentional; or, (b) Defendant’s conduct was extreme or outrageous within the meaning of the elements of the tort of intentional infliction of emotional distress. The burden shifts to Plaintiff to produce evidence of a material triable dispute concerning this Cause of Action.

The Court finds that Plaintiff has failed to meet her burden of demonstrating a material triable dispute concerning the intentional infliction of emotional distress claim. Construing the evidence in the light most favorable to this claim, Ward’s conduct, and Defendant’s response to it, including the termination of Plaintiff before her probationary period expired, may well have violated the FEHA and support a claim for emotional distress damages, but the Court finds that no reasonable jury could conclude that it was extreme or outrageous or intended to harm Plaintiff.

For the above reasons, the Court grants the motion for summary adjudication of the 7th Cause of Action.

(7) Punitive Damages (Issue 11)

For the following reasons, the Court GRANTS the motion for summary adjudication of the punitive damages prayer in the Complaint.

Civil Code section 3294 states the following in relevant part:

“(a) In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.

“(b) An employer shall not be liable for damages pursuant to subdivision (a), based upon acts of an employee of the employer, unless the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice. With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation.

“(c) As used in this section, the following definitions shall apply:

2024CUWT025724: RICKI DAVIS vs ONENECK IT SOLUTIONS LLC

(1) “Malice” means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.

(2) “Oppression” means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.

(3) “Fraud” means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury . . . .”

“[T]he mere ability to hire and fire employees” does not transform a supervisory employee into a managing agent within the meaning of Civil Code section 3294, subdivision (b). (White v. Ultramar, Inc. (1999) 21 Cal.4th 563, 566.) “Instead, we conclude the Legislature intended the term “managing agent” to include only those corporate employees who exercise substantial independent authority and judgment in their corporate decisionmaking so that their decisions ultimately determine corporate policy. The scope of a corporate employee's discretion and authority under our test is therefore a question of fact for decision on a case-by-case basis.” (Id., 21 Cal.4th at pp. 566-567.)

Defendant has produced evidence that Ward, DeJesus and Livingston were not managing agents, directors or officers of Defendant. (UMF 334-336.) Thus, the Court finds that Defendant has met its initial burden of demonstrating the lack of a material triable dispute concerning this element of punitive damages liability. The burden shifts to Plaintiff to produce evidence of a material triable dispute concerning this element.

The Court finds that Plaintiff has failed to meet this burden. The only evidence pointed to by Plaintiff to dispute these claims is the fact that these individuals participated in and approved the termination of Plaintiff’s employment after Ward’s recommendation. Pursuant to the decision in White v. Ultramar, Inc., supra, 21 Cal.4th 563, 566, however, the mere ability to hire and fire employees is not sufficient, and Plaintiff has not shown that these individuals exercised substantial independent authority and judgment in corporate decision-making or that they determined corporate policy.

Thus, while Plaintiff may have established a material triable dispute as to malice, the Plaintiff has failed to establish a material triable dispute as to the essential element that Defendant acted through officers, directors or managing agents.

For the above reasons, the Court GRANTS the motion for summary adjudication of the prayer for punitive damages.

2024CUWT025724: RICKI DAVIS vs ONENECK IT SOLUTIONS LLC

(8) Motion for Summary Judgment

The Court DENIES the motion for summary judgment because it does not dispose of all Causes of Action in the Complaint. (Code of Civ. Proc., § 437c, subd. (c).)

Disposition

Re-Cap

The motion for summary judgment is DENIED.

The motion for summary adjudication is DENIED as follows:

1st Cause of Action for Workplace Harassment Due to Age (Issue 1)

2nd Cause of Action for Discrimination on the Basis of Age (Issue 2)

3rd Cause of Action for Retaliation in violation of FEHA (Issues 3 & 4)

4th Cause of Action for Failure to Prevent Discrimination, Harassment or Retaliation & 5th Cause of Action for Wrongful Termination in Violation of Public Policy (Issues 5-8)

6th Cause of Action for Negligent Hiring, Supervision or Retention (Issue 9)

The motion for summary adjudication is GRANTED as follows:

7th Cause of Action for Intentional Infliction of Emotional Distress (Issue 10)

Punitive Damages (Issue 11)

Counsel for Defendant shall serve and file a notice of ruling and Proposed Order consistent with the above. A copy of this tentative decision (if adopted by the Court without modification as its final ruling) or of the Clerk’s Minutes may be attached to and incorporated by reference in any such notice or Proposed Order in lieu of quoting same verbatim in the body of the notice or Proposed Order.

2024CUWT025724: RICKI DAVIS vs ONENECK IT SOLUTIONS LLC

1 The Legislature has codified the decisions in Nazir and Reid. (Govt. Code, § 12923, subds. (c)

and (e).)

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