Lubinski vs. Hartman

Defendants’ objections (ROA 328) are overruled. Defendants’ objections include extensive argument in violation of California Rules of Court, Rule 3.1354(b). Moreover, the objections lack merit.

Legal Standard:

At summary judgment, “A defendant or cross-defendant has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action. Once the defendant or cross-defendant has met that burden, the burden shifts to the Plaintiff or crosscomplainant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. The plaintiff or cross-complainant shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto.” (Code. Civ. Proc. § 437c(p)(2).)

“The motion for 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.” (Code Civ. Proc. § 437c(c).)

Here, Defendants move for summary adjudication as to the third, fifth, sixth, seventh, eighth, tenth, and eleventh causes of action and Plaintiff’s claim for punitive damages.

Third Cause of Action (Defendant Hartman Only):

Plaintiff alleges he submitted a formal complaint to Red Hat in January 2023 based on Hartman calling Plaintiff “Moldy Lubinski” and “Old Moldy,” which Plaintiff found humiliating because he had disclosed to Hartman that he was experiencing health problems caused by mold exposure. (¶ 106.) Plaintiff alleges Defendants took retaliatory action including taking accounts from Plaintiff, raising Plaintiff’s sales goals, and delaying Plaintiff’s pay before eventually terminating Plaintiff in September 2023. (¶¶ 110-114.)

Defendant Hartman moves for summary adjudication of this claim on the grounds that the FEHA retaliation claim is not viable against an individual Defendant. (Motion, p. 14.) Plaintiff does not oppose the motion on these grounds. (Opp. at 1:15-16.)

Therefore, the motion is granted as to the third cause of action against Defendant Hartman.

Fifth Cause of Action – IIED (All Defendants):

In Plaintiff’s cause of action for intentional infliction of emotional distress (IIED), he alleges Defendants intentionally targeted and discriminated against him on the basis of his disability, causing severe emotional distress. (¶¶ 138-144.)

Defendants move for summary adjudication on the grounds that (1) the claim is precluded by workers compensation exclusivity, (2) Defendants’ alleged conduct was not intentional, extreme and outrageous, and (3) Plaintiff did not suffer severe emotional distress.

First, Defendant has not shown there is no triable issue as to workers compensation exclusivity.

“Physical and emotional injuries sustained in the course of employment are preempted by the workers’ compensation scheme and generally will not support an independent cause of action. Emotional injuries caused by workplace discipline, including termination, fall within this rule.” (Yau v. Santa Margarita Ford, Inc. (2014) 229 Cal.App.4th 144, 161 [cleaned up]; see Labor Code 3600 et seq.) However, Yau discusses a public policy exception to the preemption rule:

“Yau relies on a series of cases that have found exceptions to this general rule of preemption when the intentional infliction of emotional distress claim is based on conduct that violates a fundamental public policy. Those cases were decided before our Supreme Court's decision in Miklosy v. Regents of University of California (2008) 44 Cal.4th 876, 80 Cal.Rptr.3d 690, 188 P.3d 629 (Miklosy), which held the exception to workers’ compensation preemption for employer conduct that contravenes fundamental public policy is aimed at permitting a Tameny action [for wrongful discharge in violation of public policy] to proceed despite the workers' compensation exclusive remedy rule.

This exception does not, however, allow a distinct cause of action, not dependent upon the violation of an express statute or violation of fundamental public policy. Miklosy held that even severe emotional distress arising from outrageous conduct that occurred at the worksite, in the normal course of the employer-employee relationship is the type of injury that falls within the exclusive province of workers’ compensation. An employer’s intentional misconduct in connection with actions that are a normal part of the employment relationship resulting in emotional injury is considered to be encompassed within the compensation bargain, even if the misconduct could be characterized as manifestly unfair, outrageous, harassment, or intended to cause emotional disturbance.

Accordingly, the trial court did not err by sustaining the demurrer as to this cause of action. (Yau v. Santa Margarita Ford, Inc. (2014) 229 Cal.App.4th 144, 161–162 [cleaned up].)

Here, Plaintiff argues, “the public policies violated by Hartman’s offensive slurs and his retaliatory and gender-based reassignment of Plaintiff’s territory exempts Plaintiffs IIED claim from worker’s compensation: ‘some claims, including those based on sexual or racial discrimination or other conduct contrary to fundamental public policy, are not subject to the exclusivity provisions of the workers’ compensation law. Thus, such claims may be the subject of both workers’ compensation proceedings and civil actions.’ Claxton v. Waters (2004) 34 Cal.4th 367, 373, as modified (Sept. 15, 2004) (citation omitted). The age, health, and gender-based harassment suffered by Plaintiff all violate public policy and exempt his claims from workers compensation.” (Opp. at p. 9.)

In reply, Defendants do not address Plaintiff’s preemption arguments including his citation to Claxton. Plaintiff has adequately demonstrated a triable issue as to whether his claims arise from a violation of the public policy against disability discrimination such that they fall outside the workers compensation exclusivity doctrine.

Moreover, Plaintiff has demonstrated triable issues as to whether Defendants’ actions were intentional, extreme, and outrageous, and whether he suffered severe emotional distress.

Defendants argue the “Moldy” nickname was not extreme and outrageous because Plaintiff testified the nickname was “silly” and he did not promptly tell Hartman to stop or seek HR assistance. (Reply, p. 8.)

Plaintiff’s declaration is sufficient to create a triable issue as to whether Defendants engaged in intentional, extreme, and outrageous conduct with regard to Hartman’s persistent use of the nickname and Red Hat’s response, or lack thereof, to Plaintiff’s complaints. (Plaintiff Decl., ¶¶ 8- 39.)

Sixth Cause of Action – Invasion of Privacy (All Defendants):

“The elements of a common law invasion of privacy claim are intrusion into a private place, conversation, or matter, in a manner highly offensive to a reasonable person. In determining the existence of offensiveness, one must consider: (1) the degree of intrusion; (2) the context, conduct and circumstances surrounding the intrusion; (3) the intruder’s motives and objectives; (4) the setting into which the intrusion occurs; and (5) the expectations of those whose privacy is invaded. Actionable invasions of privacy must be sufficiently serious in their nature, scope, and actual or potential impact to constitute an egregious breach of the social norms underlying the privacy right.

Thus, the extent and gravity of the invasion is an indispensable consideration in assessing an alleged invasion of privacy. The impact on the plaintiff’s privacy rights must be more than slight or trivial. Whether a legally recognized privacy interest is present in a given case is a question of law to be decided by the court. Whether plaintiff has a reasonable expectation of privacy in the circumstances and whether defendant's conduct constitutes a serious invasion of privacy are mixed questions of law and fact.

If the undisputed material facts show no reasonable expectation of privacy or an insubstantial impact on privacy interests, the question of invasion may be adjudicated as a matter of law. (Mezger v. Bick (2021) 66 Cal.App.5th 76, 86–87 [cleaned up].)

Here, Plaintiff alleges Defendants invaded Plaintiff’s privacy by disclosing his private medical issues related to mold exposure by calling Plaintiff “Moldy” and similar nicknames in front of coworkers, and Red Hat failed to adequately respond to Plaintiff’s complaints about the nickname. (¶¶ 152-163.)

Defendants assert (1) Hartman did not disclose private facts because he did not have access to Plaintiff’s private health information, and calling Plaintiff “Moldy” did not necessarily disclose Plaintiff’s health information, and (2) the alleged private fact was not highly offensive because Plaintiff acknowledged the nickname was merely “weird and silly.”

To demonstrate a triable issue of fact on this claim, Plaintiff must merely show that, construing the evidence “in the light most favorable” to Plaintiff, “a reasonable jury could find” the nicknames disclosed private health information in an offensive manner. (See Mackey v. Board of Trustees of California State University (2019) 31 Cal.App.5th 640, 668; Light v. Department of Parks & Recreation (2017) 14 Cal.App.5th 75, 81.)

Here, Plaintiff has presented evidence that, in context, the alleged nicknames used by Hartman could have disclosed to Plaintiff’s coworkers that he had health problems related to mold and that he reasonably found such disclosure highly offensive. Plaintiff declares, “After Mr. Hartman started using the term ‘Moldy’, co-workers asked why I was being labeled as ‘Moldy’ and I felt compelled to explain that it was based at least in part upon my health condition.” (¶ 14.)

Plaintiff declares he told Hartman about the toxic mold issues he was experiencing and asked Hartman to keep the information confidential. (¶ 6.) Plaintiff had a reasonable expectation of privacy related to health problems disclosed to his supervisor, and he has demonstrated a triable issue as to whether the use of nicknames disclosed such information and whether he found the alleged disclosure highly offensive. (Plaintiff Decl., ¶¶ 6-14.)

Therefore, Plaintiff has demonstrated a triable issue of fact as to this claim.

Seventh and Eighth Causes of Action – Libel and Slander (All Defendants):

“Libel is a form of defamation effected in writing. The elements of a defamation claim are (1) a publication that is (2) false, (3) defamatory, (4) unprivileged, and (5) has a natural tendency to injure or causes special damage. The defamatory statement must specifically refer to, or be of and concerning, the plaintiff.” (John Doe 2 v. Superior Court (2016) 1 Cal.App.5th 1300, 1312 [cleaned up].)

“Slander is a false and unprivileged publication, orally uttered, and also communications by radio or any mechanical or other means which: 1. Charges any person with crime, or with having been indicted, convicted, or punished for crime; 2. Imputes in him the present existence of an infectious, contagious, or loathsome disease; 3. Tends directly to injure him in respect to his office, profession, trade or business, either by imputing to him general disqualification in those respects which the office or other occupation peculiarly requires, or by imputing something with reference to his office, profession, trade, or business that has a natural tendency to lessen its profits; 4. Imputes to him impotence or a want of chastity; or 5. Which, by natural consequence, causes actual damage.” (Civ. Code § 46.)

“To state a defamation claim that survives a First Amendment challenge, thus, plaintiff must present evidence of a statement of fact that is provably false. Statements do not imply a provably false factual assertion and thus cannot form the basis of a defamation action if they cannot reasonably be interpreted as stating actual facts about an individual. Thus, rhetorical hyperbole, vigorous epithets, lusty and imaginative expressions of contempt, and language used in a loose, figurative sense have all been accorded constitutional protection.

The dispositive question after is whether a reasonable trier of fact could conclude that the published statements imply a provably false factual assertion. To ascertain whether the statements in question are provably false factual assertions, courts consider the totality of the circumstances. Whether challenged statements convey the requisite factual imputation is ordinarily a question of law for the court.” (Nygard, Inc. v. Uusi- Kerttula (2008) 159 Cal.App.4th 1027, 1048–1049 [cleaned up].)

Here, Plaintiff alleges the “Moldy” nickname was false and defamatory because the language falsely conveyed to Plaintiff’s coworkers that Plaintiff is “decaying, old, antiquated, dull, not interesting, and/or depressing.” (¶¶ 167-169.)

Defendants contend (1) “Moldy” was not a “provably false assertion of fact about Plaintiff or even an opinion,” (2) Defendants had no intent to defame or cause harm, and (3) Plaintiff suffered no harm from the nickname. (Motion, pp. 21-22.) Defendant also asserts that to the extent the nickname was stating fact, it was “substantially true.”

In opposition, Plaintiff responds that “Moldy” and “Old Moldy” could reasonably be considered defamatory factual statements because the dictionary definition of “moldy” includes “being old and moldering”, “crumbling” “antiquated” and “fusty.” (Opp. at 11:13-15.)

Based on the “totality of the circumstances,” Plaintiff has demonstrated that “a reasonable trier of fact could conclude that the published statements imply a provably false factual assertion.” (See Nygard, supra, 159 Cal.App.4th at 1048-1049.) For example, Plaintiff’s coworkers could have interpreted the statements to mean that Plaintiff was too old to perform his duties and/or suffered from a medical condition or disability which rendered him unable to perform his duties. Plaintiff has adequately demonstrated a triable issue as to whether he suffered harm, including embarrassment, retaliation, and other employment consequences from Defendants’ actions involving the nickname. Therefore, the motion is denied as to this claim.

Tenth Cause of Action – Failure to Pay Wages (Defendant Red Hat Only):

Plaintiff does not oppose the motion as to his tenth cause of action against Red Hat. (Opp. at 1:15-17.) Therefore, the motion is granted as to the tenth cause of action against Defendant Red Hat.

Eleventh Cause of Action – Waiting Time Penalties (Defendant Red Hat Only):

Plaintiff does not oppose the motion as to his eleventh cause of action against Red Hat. (Opp. at 1:15-17.) Therefore, the motion is granted as to the eleventh cause of action against Defendant Red Hat.

Punitive Damages (All Defendants):

Defendants contend there is no evidence they acted with malice, oppression, or fraud and that Red Hat is not liable for punitive damages because Defendant Hartman and Vice President Hernandez were not officers, directors, or managing agents of Red Hat. (See Civ. Code § 3294.)

A plaintiff may seek punitive damages only “where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice.” (Civ. Code § 3294(a).) “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.” (Civ. Code § 3294(c)(1).) “Oppression” means “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.” (Civ. Code § 3294(c)(2).) “Despicable conduct” is conduct that is “so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people.” (Lackner v. North (2006) 135 Cal.App.4th 1188, 1210.)

“Summary judgment or summary adjudication on the issue of punitive damages is proper only when no reasonable jury could find the plaintiff's evidence to be clear and convincing proof of malice, fraud or oppression.” (Butte Fire Cases (2018) 24 Cal.App.5th 1150, 1159 [cleaned up].)

Here, Plaintiff contends there is a triable issue as to whether Hartman’s use of the offensive nicknames was “despicable” and whether Hartman was a “managing agent” of Red hat. Plaintiff cites evidence that Hartman, a Senior Sales Manager, was responsible for assigning accounts and in fact Hartman reassigned accounts from Plaintiff to a younger sales rep. (Opp. at p. 14.) Plaintiff also argues that Red Hat’s HR manager Katherine Foley was a managing agent who was responsible for enforcing corporate anti-harassment policy. (Id. at p. 15.)

Plaintiff has adequately demonstrated a triable issue as to whether Hartman’s conduct was despicable and whether Hartman and/or the HR team members who responded to his complaint were managing agents who ratified Hartman’s conduct. Therefore, the motion is denied as to this issue.

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“A notice of motion to strike a demurrer, or a portion thereof, shall set the hearing thereon concurrently with the hearing on the demurrer.” (Code Civ. Proc., § 435(b)(3).)

Defendant filed a Demurrer and Motion to Strike on March 16, 2026. The Motion to Strike is currently set for hearing on September 3, 2026. Thus, the hearing for Defendant’s Demurrer is continued to September 3, 2026 to be heard concurrently with the Motion to Strike.

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