This case was last updated from Los Angeles County Superior Courts on 09/22/2018 at 14:17:02 (UTC).

Vilma Zeron Vs Eagle Foods Inc Et Al

Case Summary

On 03/13/2018 a Labor - Wrongful Termination case was filed by Vilma Zeron against Eagle Foods Inc in the jurisdiction of Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****7933

  • Filing Date:

    03/13/2018

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Labor - Wrongful Termination

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Teresa A. Beaudet

 

Party Details

Plaintiff and Petitioner

Zeron Vilma

Respondents and Defendants

Eagle Foods Inc.

Does 1-100

 

Court Documents

Order - ORDER ON PLAINTIFF'S EX PARTE MOTION TO CONTINUE TRIAL

9/30/2019: Order - ORDER ON PLAINTIFF'S EX PARTE MOTION TO CONTINUE TRIAL

Motion in Limine - MOTION IN LIMINE NO. 4 TO EXCLUDE PLAINTIFF'S JOB PERFORMANCE WITH DEFENDANT AND SUBSEQUENT EMPLOYERS ;

10/3/2019: Motion in Limine - MOTION IN LIMINE NO. 4 TO EXCLUDE PLAINTIFF'S JOB PERFORMANCE WITH DEFENDANT AND SUBSEQUENT EMPLOYERS ;

Motion in Limine - MOTION IN LIMINE NO. 2 TO EXCLUDE PLAINTIFF'S CIVIL ACTIONS, LAWSUITS OR PROCEEDINGS AND FINANCIAL HISTORY

10/3/2019: Motion in Limine - MOTION IN LIMINE NO. 2 TO EXCLUDE PLAINTIFF'S CIVIL ACTIONS, LAWSUITS OR PROCEEDINGS AND FINANCIAL HISTORY

Motion in Limine - MOTION IN LIMINE NO. 3 TO PRECLUDE EVIDENCE OF PARAGRAPH 7(C) IN PLAINTIFF'S COMPLAINT

10/3/2019: Motion in Limine - MOTION IN LIMINE NO. 3 TO PRECLUDE EVIDENCE OF PARAGRAPH 7(C) IN PLAINTIFF'S COMPLAINT

Reply - REPLY DEFENDANT'S REPLY IN SUPPORT OF MOTION TO BIFURCATE TRIAL PURSUANT TO CCP 598 AND 1048, AND CIVIL CODE 3295

9/23/2019: Reply - REPLY DEFENDANT'S REPLY IN SUPPORT OF MOTION TO BIFURCATE TRIAL PURSUANT TO CCP 598 AND 1048, AND CIVIL CODE 3295

Notice - NOTICE OF CONTINUED CASE MANAGEMENT CONFERENCE

9/4/2019: Notice - NOTICE OF CONTINUED CASE MANAGEMENT CONFERENCE

Minute Order - MINUTE ORDER (STATUS CONFERENCE)

9/10/2019: Minute Order - MINUTE ORDER (STATUS CONFERENCE)

Opposition - OPPOSITION TO DEFENDANT'S MOTION TO BIFURCATE

9/16/2019: Opposition - OPPOSITION TO DEFENDANT'S MOTION TO BIFURCATE

Notice Re: Continuance of Hearing and Order

8/29/2019: Notice Re: Continuance of Hearing and Order

Association of Attorney

8/20/2019: Association of Attorney

Exhibit List - EXHIBIT LIST COMPENDIUM OF DECLARATIONS AND EXHIBITS IN SUPPORT OF MSJ

8/14/2019: Exhibit List - EXHIBIT LIST COMPENDIUM OF DECLARATIONS AND EXHIBITS IN SUPPORT OF MSJ

Minute Order - MINUTE ORDER (NUNC PRO TUNC ORDER)

7/3/2019: Minute Order - MINUTE ORDER (NUNC PRO TUNC ORDER)

Minute Order - MINUTE ORDER (EX-PARTE PROCEEDINGS)

7/3/2019: Minute Order - MINUTE ORDER (EX-PARTE PROCEEDINGS)

Association of Attorney

5/24/2019: Association of Attorney

CASE MANAGEMENT STATEMENT -

7/10/2018: CASE MANAGEMENT STATEMENT -

CASE MANAGEMENT STATEMENT -

6/26/2018: CASE MANAGEMENT STATEMENT -

DEFENDANT EAGLE FOODS, INC. ANSWER TO PLAINTIFF'S COMPLAINT FOR DAMAGES

5/4/2018: DEFENDANT EAGLE FOODS, INC. ANSWER TO PLAINTIFF'S COMPLAINT FOR DAMAGES

SUMMONS -

3/13/2018: SUMMONS -

32 More Documents Available

 

Docket Entries

  • 12/03/2019
  • Hearing12/03/2019 at 09:30 AM in Department 50 at 111 North Hill Street, Los Angeles, CA 90012; Jury Trial

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  • 10/25/2019
  • Hearing10/25/2019 at 09:30 AM in Department 50 at 111 North Hill Street, Los Angeles, CA 90012; Final Status Conference

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  • 10/25/2019
  • Hearing10/25/2019 at 09:30 AM in Department 50 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Motion for Summary Judgment

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  • 10/03/2019
  • DocketMotion in Limine (No. 5 to Exclude Evidence of Proceedings Before The EDD); Filed by Vilma Zeron (Plaintiff)

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  • 10/03/2019
  • DocketMotion in Limine (No. 5 to Exclude Evidence of Proceedings Before the EDD); Filed by Vilma Zeron (Plaintiff)

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  • 10/03/2019
  • DocketMotion in Limine (No. 4 to Exclude Plaintiff's Job Performance with Defendant and Subsequent Employers ;); Filed by Vilma Zeron (Plaintiff)

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  • 10/03/2019
  • DocketMotion in Limine (No. 3 to Preclude Evidence of Paragraph 7(c) in Plaintiff's Complaint); Filed by Vilma Zeron (Plaintiff)

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  • 10/03/2019
  • DocketRequest for Dismissal; Filed by Vilma Zeron (Plaintiff)

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  • 10/03/2019
  • DocketMotion in Limine (No. 2 to Exclude Plaintiff's Civil Actions, Lawsuits or Proceedings and Financial History); Filed by Vilma Zeron (Plaintiff)

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  • 10/03/2019
  • DocketMotion in Limine (No. 1 to Exclude Evidence of Plaintiff's Criminal Convictions); Filed by Vilma Zeron (Plaintiff)

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49 More Docket Entries
  • 05/08/2018
  • DocketNOTICE OF CASE MANAGEMENT CONFERENCE

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  • 05/04/2018
  • DocketAnswer; Filed by Eagle Foods, Inc. (Defendant)

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  • 05/04/2018
  • DocketDEFENDANT EAGLE FOODS, INC. ANSWER TO PLAINTIFF'S COMPLAINT FOR DAMAGES

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  • 04/02/2018
  • DocketProof of Service (not Summons and Complaint); Filed by Vilma Zeron (Plaintiff)

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  • 04/02/2018
  • DocketPROOF OF SERVICE SUMMONS

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  • 03/23/2018
  • DocketNOTICE OF CASE MANAGEMENT CONFERENCE

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  • 03/23/2018
  • DocketNotice of Case Management Conference; Filed by Clerk

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  • 03/13/2018
  • DocketSUMMONS

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  • 03/13/2018
  • DocketCOMPLAINT FOR DAMAGES FOR: 1. VIOLATION OF THE FEHA; FOR SEXUAL HARASSMENT - HOSTLE WORK ENVIRONMENT ;ETC

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  • 03/13/2018
  • DocketComplaint; Filed by Vilma Zeron (Plaintiff)

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Tentative Rulings

Case Number: BC697933    Hearing Date: February 27, 2020    Dept: 50

Superior Court of California

County of Los Angeles

Department 50

vilma zeron,

Plaintiff,

vs.

eagle foods, inc., et al.,

Defendants.

Case No.:

BC 697933

Hearing Date:

February 27, 2020

Hearing Time:

1:30 p.m.

[TENTATIVE] ORDER RE:

MOTION FOR LEAVE TO FILE AMENDMENT TO COMPLAINT;

MOTION FOR LEAVE TO: 1. COMPLETE THE DEPOSITION OF RIGOBERTO QUINTERO; AND 2. CONDUCT THE DEPOSITION OF MARIA PONCE

Background

Plaintiff Vilma Zeron (“Zeron”) filed this employment action on March 13, 2018 against Defendant Eagle Foods, Inc. (“Eagle Foods”). Trial is currently set for May 27, 2020.

Zeron now moves for leave to file amendments to the operative Complaint. Zeron also moves for leave to conduct additional discovery, including completing the deposition of a non-party witness and conducting a deposition of a different non-party witness. Both motions are opposed by Eagle Foods.

Motion for Leave to File Amendment to Complaint

Pursuant to Code of Civil Procedure section 473, subdivision (a)(1), “[t]he court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading.” Amendment may be allowed at any time before or after commencement of trial. (Code Civ. Proc., § 576.) “[T]he court’s discretion will usually be exercised liberally to permit amendment of the pleadings. The policy favoring amendment is so strong that it is a rare case in which denial of leave to amend can be justified.” (Howard v. County of San Diego (2010) 184 Cal.App.4th 1422, 1428 [internal citations omitted].) “If the motion to amend is timely made and the granting of the motion will not prejudice the opposing party, it is error to refuse permission to amend….” (Morgan v. Superior Court of Los Angeles County (1959) 172 Cal.App.2d 527, 530.) Prejudice includes “delay in trial, loss of critical evidence, or added costs of preparation.” (Solit v. Tokai Bank (1999) 68 Cal.App.4th 1435, 1448.)

“If the complaint is amended, a copy of the amendments shall be filed, or the court may, in its discretion, require the complaint as amended to be filed, and a copy of the amendments or amended complaint must be served upon the defendants affected thereby.” (Code Civ. Proc.,

§ 471.5, subd. (a).)

A motion to amend a pleading before trial must include a copy of the proposed amendment or amended pleading, which must be serially numbered to differentiate it from previous pleadings or amendments. (Cal. Rules of Court, rule 3.1324(a).) The motion must also state what allegations are proposed to be deleted or added, by page, paragraph, and line number. (Ibid.) Finally, a separate supporting declaration specifying the effect of the amendment, why the amendment is necessary and proper, when the facts giving rise to the amended allegations were discovered, and the reason why the request for amendment was not made earlier must also accompany the motion. (Cal. Rules of Court, rule 3.1324(b).)

Zeron seeks to make the following amendments to the Complaint: substituting Eagle Foods, Inc. in place of LA Care Health Plan in paragraph 2 of the Complaint and deleting the sentence contained in paragraph 7c (“In December 2016 while driving in a car grabbed PLAINTIFF’S leg and told her to think dirty thoughts;”).

The Court notes that Zeron did not provide a copy of the proposed amendment with the instant motion, but a proposed amendment was filed on December 17, 2019 in support of Zeron’s ex parte application for the same relief.

The motion is accompanied by a declaration from Zeron’s counsel, who states that the inclusion of “LA Health Care Plan” and the allegation in paragraph 7c was a mistake. (Lipow Decl., ¶ 2.) According to counsel for Zeron, Jeffrey A. Lipow, these allegations were inadvertently carried over from a complaint filed by Mr. Lipow on behalf of a different client. (Lipow Decl., ¶¶ 4-5, Ex. 1.) Mr. Lipow asserts that Zeron did not review the Complaint before it was filed. (Lipow Decl., ¶ 5.) Mr. Lipow also states that Zeron was questioned about both paragraph 2 and paragraph 7c extensively at her deposition. (Lipow Decl., ¶ 6.) It can be inferred that Mr. Lipow did not learn of the mistakes in the Complaint until Zeron’s deposition.

Eagle Foods contends that allowing Zeron to file an amendment would prejudice it because Zeron testified affirmatively about the allegation in paragraph 7c at her deposition. However, no declaration was proffered in support of the opposition; consequently, none of the exhibits attached to the opposition, including the deposition transcript, has been properly authenticated. Eagle Foods also argues but submits no evidence to demonstrate that Zeron has delayed seeking leave to file an amendment. The record in this case shows that Zeron first sought leave to file an amendment by ex parte application, which was made on December 18, 2019. That application was denied without prejudice to Zeron filing a properly noticed motion, which was eventually filed on January 17, 2020. Eagle Foods has not provided evidence that it has been prejudiced by the delay.

Based on the arguments presented, the Court finds that Zeron has demonstrated good cause for amending paragraph 2 of her Complaint and amending paragraph 7c of the Complaint.

Motion for Leave to Conduct Depositions

Although Zeron captions her motion as one for leave to conduct discovery, Zeron is essentially requesting that discovery be reopened.

The Discovery Act provides that, unless otherwise ordered, all discovery proceedings must be completed 30 days before the date initially set for trial, and all discovery motions must be heard on or before the 15th day before the date initially set for trial. (Code Civ. Proc.,

§ 2024.020.) On motion of any party, the court may allow discovery proceedings to be completed after the “cut-off” date or allow a motion concerning discovery heard closer to the initial trial date. (Code Civ. Proc., § 2024.050, subd. (a).) Such a motion must be accompanied by a meet and confer declaration. (Code Civ. Proc., § 2024.050, subd. (a).) In exercising its discretion to grant or deny such motions, the court must take into consideration any relevant matter, including the following:

  1. The necessity and the reasons for the discovery.

  2. The diligence or lack of diligence of the party seeking the discovery or the hearing of a discovery motion, and the reasons that the discovery was not completed or that the discovery motion was not heard earlier.

  3. Any likelihood that permitting the discovery or hearing the discovery motion will prevent the case from going to trial on the date set, or otherwise interfere with the trial calendar, or result in prejudice to any other party.

  4. The length of time that has elapsed between any date previously set, and the date presently set, for the trial of the action.

(Code Civ. Proc., § 2024.050, subd. (b).)

Zeron seeks to reopen discovery so that she may complete the deposition of Rigoberto Quintero, a third-party percipient witness and to also conduct the deposition of Maria Ponce, another third-party witness. The date initially set for trial was November 6, 2019. (7/16/18 Case Management Order.) Therefore, the discovery cut-off date was October 7, 2019.

Zeron states that Mr. Quintero’s deposition took place on October 2, 2019, but it was not completed at that time because Mr. Quintero requested an opportunity to obtain legal representation. (Lipow Decl., ¶¶ 3-4.) On October 7, 2019, counsel for Zeron was notified that Mr. Quintero would be represented by counsel for Eagle Foods. (Lipow Decl., ¶ 6.) Counsel for Zeron then states without further explanation or evidence that “[e]fforts were made unsuccessfully to reschedule Mr. Quintero’s deposition.” (Lipow Decl., ¶ 6.)

Eagle Foods opposes the completion of the Quintero deposition but proffers no evidence in the form of a declaration to support the opposition even though exhibits are again attached to the opposition and left unauthenticated.

As to Ms. Ponce, counsel for Zeron states that Ms. Ponce was subpoenaed to appear on October 2, 2019 for her deposition as well, but that Ms. Ponce did not appear apparently because the subpoena was directed to Maria Perez. (Lipow Decl., ¶ 9, Ex. 3.) Ms. Ponce was subpoenaed because she was Zeron’s supervisor, she is listed by Eagle Foods as a percipient witness at trial, and she owns food trucks and has a business relationship with Eagle Foods. (Lipow Decl., ¶ 8.)

Based on a consideration of the factors set forth in Code of Civil Procedure section 2024.050, subdivision (b), the Court finds that Zeron has shown good cause for reopening discovery. Both depositions were noticed within the original discovery period, and Zeron was not at fault for the delay in Mr. Quintero’s deposition. Although Zeron did not first move for relief until December 17, 2019, when counsel for Zeron filed an ex parte application, Eagle Foods has not demonstrated that allowing these depositions to go forward will result in a delay in trial nor will it otherwise prejudice Eagle Foods. Therefore, the Court exercises its discretion to grant the motion to reopen discovery.

Conclusion

Based on the foregoing, Zeron’s motion for leave to file an amendment to the Complaint is granted.

The Court orders Zeron to file and serve the Amendment to the Complaint within three days of the date of this order.

The Court grants Zeron’s motion to reopen discovery as to the depositions of Rigoberto Quintero and Maria Ponce. The Court orders the parties to meet and confer regarding setting dates for the depositions, which are to be conducted no later than March 20, 2020.

Zeron is ordered to give notice of this ruling.

DATED: February 27, 2020 ________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court

Case Number: BC697933    Hearing Date: October 25, 2019    Dept: 50

Superior Court of California

County of Los Angeles

Department 50

vilma zeron,

Plaintiff,

vs.

eagle foods, inc., et al.

Defendants.

Case No.:

BC 697933

Hearing Date:

October 25, 2019

Hearing Time:

8:30 a.m.

[TENTATIVE] ORDER RE:

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATATION OF ISSUES

Background

On March 13, 2018, Plaintiff Vilma Zeron (“Zeron”) filed this action against Defendant Eagle Foods, Inc. (“Eagle”). The Complaint asserts causes of action for (1) FEHA – sexual harassment/hostile work environment, (2) FEHA – failure to protect, and (3) FEHA – retaliation. The retaliation claim was dismissed on October 3, 2019.

Eagle now moves for summary judgment or, in the alternative, summary adjudication of each cause of action and Zeron’s punitive damages claim. Zeron opposes.

Legal Standard

“[A] 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.” ((Code Civ. Proc., § 437c (c).) The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. ((Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) If the moving party carries this burden, the burden shifts to the opposing party to make a prima facie showing that a triable issue of material fact exists. (Ibid.) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” ((Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)

When a defendant seeks summary judgment, he/she must show either (1) that one or more elements of the cause of action cannot be established; or (2) that there is a complete defense to that cause of action. ((Code Civ. Proc., § 437c(p)(2).)

Discussion

  1. Sexual Harassment

“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 omitted].) This must be assessed from the perspective of a reasonable person belonging to the same protected group as the plaintiff, and is ordinarily an issue of fact. ((Id. at p. 264.) Thus, hostile working environment cases are “rarely appropriate for disposition on summary judgment.” ((Id. at p. 286); (see also Gov. Code, § 12923(b) [“A single incident of harassing conduct is sufficient to create a triable issue regarding the existence of a hostile work environment if the harassing conduct has unreasonably interfered with the plaintiff’s work performance or created an intimidating, hostile, or offensive working environment.”].) “The 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.” ((Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 609-610.)

To establish a prima facie case for harassment, a plaintiff must show that (1) she was a member of a protected class; (2) she was subjected to unwelcome harassment; (3) the harassment was based on membership in the protected class; (4) the harassment unreasonably interfered with her work performance by creating an intimidating, hostile, or offensive work environment; and (5) the employer is liable for the harassment. ((Thompson v. City of Monrovia (2010) 186 Cal.App.4th 860, 876.)

Eagle contends that Zeron’s sexual harassment claim fails for three reasons. First, Eagle contends that Zeron cannot demonstrate that any harassment directed toward her was based on her sex. Second, Eagle contends that Zeron cannot show that she was subjected to conduct that was sufficiently severe or pervasive to constitute a hostile working environment. Third, Eagle contends that Zeron cannot show that Eagle is liable for the alleged harassment.

Because the pleadings serve as the “outer measure of materiality” in a summary judgment motion, the Court begins with the allegations of the Complaint. ((Hutton v. Fidelity National Title Co. (2013) 213 Cal.App.4th 486, 493.) Zeron alleges that beginning in September 2016, she was consistently sexually harassed and assaulted by a co-worker named Darryl. (Compl., ¶ 7.) Specifically, in September 2016, Darryl put his arm around Zeron and pulled her against his body. (Compl., ¶ 7a.) Over the next months, Darryl touched Zeron’s body multiple times. (Compl., ¶ 7b.) In December 2016, while driving in a car, someone (presumably Darryl) grabbed Zeron’s leg and told her to think dirty thoughts. (Compl., ¶ 7c.) In December 2016, after Darryl was counseled by their employer about his conduct, Darryl made an abusive comment to Zeron. (Compl., ¶ 7d.) On January 4, 2017, while Zeron was inspecting a food truck, Darryl grabbed Zeron from behind, forced her into the truck while grabbing her breasts, and dangled a dead rat in front of her face. (Compl., ¶ 7e.) In March 2017, on two occasions, Darryl made threatening, intimidating, and frightening gestures toward Zeron. (Compl., ¶ 7g.)

Eagle contends that Zeron cannot demonstrate that any conduct directed toward her was based on her sex. Eagle acknowledges that the allegation that Darryl (whose full name is Darryl Dezotell) grabbed Zeron’s breast is sexual in nature, but argues that Zeron does not have any corroborating evidence and that “her story completely fell apart during her deposition.” (Mot.,

p. 6: 6-7.) The Court notes that Eagle offers no authority for the contention that a plaintiff needs “corroborating evidence” in order to survive summary judgment on a sexual harassment claim. In any event, as the moving party, Eagle has the initial burden of demonstrating that Zeron cannot establish an element of the cause of action. Simply arguing that Zeron’s allegation has not been corroborated does not satisfy Eagle’s burden.[1] Next, in support of the assertion that Zeron’s “story completely fell apart during her deposition,” Eagle cites not to Zeron’s deposition but to the deposition of a person named Daniel De La O. Though Eagle does not identify Mr. De La O, the Court is able to deduce from the evidence that Zeron reported the January 4, 2017 to the police department, and Mr. De La O is a police officer who prepared the investigative report. Eagle cites to two pages of Mr. De La O’s deposition transcript: page 442 and page 55. On page 55 of the transcript, Mr. De La O testifies that Zeron reported that Mr. Dezotell grabbed her waist on the day of the incident, and that if Zeron had reported that Mr. Dezotell had grabbed her breasts, Mr. De La O would have included that fact in the report. (J. Acevedo Decl., ¶ 15, Ex. PP (De La O Depo.), p. 55:12-22.) The police report itself is attached as Exhibit 4 to the deposition transcript, and in it, it is noted that Zeron alleges that Mr. Dezotell grabbed her waist. (J. Acevedo Decl., ¶ 15, Ex. PP (De La O Depo.), Ex. 4.) There is no note in the police report about Mr. Dezotell grabbing Zeron’s breasts. Though Eagle makes the argument explicitly, a reasonable inference can be made that Eagle’s position is that because Zeron did not report being grabbed by the breast to the police, Zeron’s allegation that Mr. Dezotell grabbed her breast is not credible.

Page 442 of Mr. De La O’s transcript was not provided to the Court. To the extent that the citation to page 442 is meant to refer to Zeron’s deposition, there is no testimony on page 442 of Zeron’s deposition transcript that appears to be related at all to the January 4, 2017 incident. Instead, the testimony on page 442 is related to the allegation that Mr. Dezotell grabbed Zeron’s leg during a car ride. Although Eagle contends that this allegation was copied and pasted by Zeron’s attorney from another lawsuit (meaning that this never happened to Zeron), nothing in the cited portion of the deposition transcript supports such a conclusion. (J. Acevedo Decl., ¶ 14, Ex. OO (Zeron Depo.), p. 442:8-20.)

The Court also notes that Eagle has not addressed Zeron’s allegation that Mr. Dezotell put his arm around Zeron and pulled her against his body, and that he touched her body multiple times. (Compl., ¶ 7a, b.) In any event, Zeron submits evidence in opposition to this motion that in September 2016, Mr. Dezotell reached out and grabbed her around the waist and pulled her tightly against his body. (Zeron Decl., ¶ 3.) Zeron also submits evidence that Mr. Dezotell repeatedly made comments about Zeron’s appearance and clothing, referring to her as “beautiful” or “hot.” (Zeron Decl., ¶ 4.) Zeron asserts that Mr. Dezotell touched her numerous times about the shoulders, arms, and sides and asked her out on a date. (Zeron Decl., ¶ 4.) In reply, Eagle argues that this testimony about asking Zeron out on a date is evidence of the “evolution” of Zeron’s claims because she did not include this allegation in her Complaint or in her deposition testimony. But Eagle does not cite to anything in Zeron’s deposition suggesting that her answers at deposition were exhaustive of all the conduct she was subjected to by

Mr. Dezotell.[2] In fact, Eagle cites to interrogatory responses provided by Zeron specifically mentioning that she was asked out on a date by Mr. Dezotell. (J. Acevedo Decl., ¶¶ 12-13, Exs. MM, NN.[3])

Eagle argues that Zeron was unable to describe any details about Mr. Dezotell’s harassing conduct but fails to cite to any evidence in support of this assertion. (Mot., p. 7:1-3.) Evidently, Zeron was unable to recall many of the harassing incidents at deposition, but according to Eagle, “to list all the time[s] she was unable to remember would make this motion a novel.” (Mot.,

p. 7:8-9.) As already stated, the moving party on a motion for summary judgment has the initial burden of demonstrating that an element of a cause of action cannot be established. In other words, the Court cannot conclude that Zeron was unable to recall the material details of the events underlying her sexual harassment claim without evidence that Zeron was unable to recall those details. Eagle’s failure to identify any of this evidence, either in its moving papers or its separate statement, is fatal to its motion for summary judgment. Accordingly, the Court finds that Eagle has failed to meet its burden of showing that Zeron’s sexual harassment claim is without merit.

Notwithstanding the triable issues as to sexual harassment, Eagle contends that it cannot be liable for Mr. Dezotell’s conduct because Mr. Dezotell was a nonsupervisory employee, and Eagle reacted promptly to Zeron’s complaints. There does not appear to be a dispute that

Mr. Dezotell was not Zeron’s supervisor. (A. Acevedo Decl., ¶ 9; Zeron Decl., ¶ 2.) An employer is liable for sexual harassment by a nonsupervisory employee “only if the employer (a) knew or should have known of the harassing conduct and (b) failed to take immediate and appropriate corrective action.” ((State Dept. of Health Services v. Superior Court (2003) 31 Cal.4th 1026, 1041); (Gov. Code, § 12940, subd. (j)(1)).] To avoid liability for sexual harassment by a nonsupervisory employee, an employer must take “prompt, reasonable and efficacious remedial action” in response to a harassment complaint. ((Mathieu v. Norrell Corp. (2004) 115 Cal.App.4th 1174, 1185.) “The employer’s obligation to take prompt corrective action requires (1) that temporary steps be taken to deal with the situation while the employer determines whether the complaint is justified and (2) that permanent remedial steps be implemented by the employer to prevent future harassment once the investigation is completed.” (Bradley v. Department of Corrections & Rehabilitation (2008) 158 Cal.App.4th 1612, 1630.) “An employer has wide discretion in choosing how to minimize contact between the two employees, so long as it acts to stop the harassment.” (Ibid. .) “[T]he most significant immediate measure an employer can take in response to a sexual harassment complaint is to launch a prompt investigation to determine whether the complaint is justified.” (Bradley v. Department of Corrections & Rehabilitation, supra, at page 1631[internal quotations omitted].)

There is no dispute that Zeron complained about two specific incidents concerning

Mr. Dezotell’s conduct: the November 28, 2016 pushing incident and the January 4, 2017 rat incident. (A. Acevedo Decl., ¶¶ 10, 12; Avedisian Decl., ¶¶ 5, 7; Zeron Decl., ¶¶ 5, 8.) Eagle submits evidence that Eagle immediately investigated and reprimanded Mr. Dezotell after the November 28, 2016 incident, and that Eagle immediately suspended and then a week later terminated Mr. Dezotell’s employment after the January 4, 2017 incident. (A. Acevedo Decl.,

¶¶ 11-12, 16; Avedisian Decl., ¶¶ 6-9.) Eagle contends that it had no knowledge of any other incidents of harassment by Mr. Dezotell. (A. Acevedo Decl., ¶ 32; Avedisian Decl., ¶ 11.)

Zeron asserts that she was harassed by Mr. Dezotell beginning in September 2016 and reported that harassment to her supervisor. (Compl., ¶ 7; Zeron Decl., ¶¶ 3-4.) Zeron also asserts that after Mr. Dezotell was reprimanded following the November 28, 2016 incident, Mr. Dezotell approached Zeron and said, “Oh guess what? I was told by Sam not to touch you. I guess the boss has a crush on you.” (Zeron Decl., ¶ 6.) This incident was also reported to Zeron’s supervisor. (Zeron Decl., ¶ 6.) Over the next several weeks, Mr. Dezotell gave Zeron strange and menacing facial expressions, which Zeron told her supervisor about. (Zeron Decl., ¶ 7.) Based on the evidence presented, the Court finds that a triable issue of fact exists as to whether Eagle is liable for the alleged sexual harassment for its failure to take immediate and appropriate corrective action based on its knowledge of Mr. Dezotell’s conduct.

  1. Failure to Prevent Harassment

Failure to take all reasonable steps necessary to prevent discrimination or harassment is a “separate actionable tort enforceable upon the establishment of the usual tort elements of duty of care, breach of duty (a negligent act or omission), causation, and damages.” ((Dickson v. Burke Williams, Inc. (2015) 234 Cal.App.4th 1307, 1313.) A claim of failure to prevent FEHA violations must be predicated on an actionable claim of those violations, such as discrimination or harassment. ((Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th 280, 289.)

Eagle contends that the failure to prevent cause of action must fail because there is no viable harassment claim. Nevertheless, because the Court finds that a triable issue of fact exists as to the sexual harassment claim, including on the issue of whether Eagle took immediate corrective action following Zeron’s complaints about Mr. Dezotell’s conduct, a similar triable issue of fact exists as to whether Eagle took all reasonable steps necessary to prevent harassment.

  1. Punitive Damages

“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.” ((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).)

Eagle contends that Zeron is not entitled to punitive damages because Zeron cannot show with clear and convincing evidence that Eagle engaged in any oppression, fraud, or malice. Eagle asserts that it had policies in place prohibiting harassment such that there can be no possible finding of malice. Eagle also contends that Zeron cannot show that any managing agent engaged in or ratified any oppression, fraud, or malice. ((Civ. Code, § 3294(b) [“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.”].) A managing agent is someone who exercises “substantial discretionary authority over significant aspects of a corporation’s business.” ((White v. Ultramar (1999) 21 Cal.4th 563, 577 [noting that “supervisors who have broad discretionary powers and exercise substantial discretionary authority in the corporation could be managing agents”].)

The Court finds that a triable issue of fact exists as to the punitive damages claim. There is evidence that Zeron made repeated complaints about Mr. Dezotell’s conduct and that Zeron’s supervisors failed to take any action on certain complaints. Thus, there is evidence that Eagle’s managing agents ratified the harassing conduct.

Conclusion

For the foregoing reasons, Eagle’s motion for summary judgment is denied in its entirety.

Zeron is ordered to provide notice of this ruling.

DATED: October 25, 2019 ________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court


[1] The Court notes that this fact, that Zeron does not have “corroborating evidence” of Darryl grabbing her breast, is not set forth in Eagle’s separate statement and is not otherwise supported by any evidence.

[2] Indeed, although Eagle references certain evidence, Eagle does not cite to any evidence in its reply. Incidentally, the Court also notes that Eagle improperly raises new arguments in its reply, which the Court disregards.

[3] In response to Special Interrogatory No. 13, which requested Zeron “[s]et forth specifically what were the caustic or abuse [sic] comments by Darryl as referred to in YOUR COMPLAINT and DFEH claim,” Zeron stated: “During the relevant time period, Darryl made a number of comments about Responding Party’s appearance. Darryl stated to Responding Party that he would pay her to go out with him. After Darryl was counseled on his conduct, he said to Responding Party that he was not allowed to touch her and that he guesses that the boss has a crush on her.” Zeron also stated: “During the relevant time period, Responding Party can recall as of this time that Darryl made a number of comments to Responding Party, including, but not limited to the following: I will pay you to go out with me; you look nice today; you look very sexy today; you have a beautiful smile; the boss has a crush on you.”