Case Number: BC658407 Hearing Date: July 27, 2018 Dept: A

Meggs v NBC Universal Media

MOTION FOR SUMMARY ADJUDICATION; MOTION FOR SANCTIONS

Calendar: 4

Case No: BC658407

Hearing Date: 7/27/18

Action Filed: 4/18/17

Trial: Not set

Motion for Summary Adjudication (Filed 3/26/18)

MP:

Defendant Arutyun Adzhemyan

RP:

Plaintiff Camille Meggs

Motion for Sanctions (Filed 3/26/18)

MP:

Defendant Arutyun Adzhemyan

RP:

Plaintiff Camille Meggs

ALLEGATIONS IN COMPLAINT:

Plaintiff Camille Meggs commenced this action on April 18, 2017. The action was removed to the Central District of California, and Plaintiff filed a First Amended Complaint (“FAC”). The case was then remanded back to state court.

Plaintiff is an African American woman, who has been employed by Defendants NBCUniversal Media, LLC, KNBC, and NCB Universal, LLC (“NBC Defendants”) since 1999. She alleges she sent a letter of complaint on September 28, 2016 to human resources, regarding a pattern of racist and sexual conduct in the KNBC newsroom. On January 18, 2017, human resources contacted her saying there was no discrimination. Then, on January 19, 2017, Plaintiff alleges she was assaulted by security guard, Defendant Arutyun Adzhemyan.

The FAC alleges causes of action for: (1) race discrimination – disparate treatment in violation of FEHA (Gov’t Code, §12940(a)); (2) gender discrimination – disparate treatment in violation of FEHA (Gov’t Code, §12940(a)); (3) race discrimination – disparate impact in violation of FEHA (Gov’t Code, §12940(a)); (4) gender discrimination – disparate impact in violation of FEHA (Gov’t Code, §12940(a)); (5) hostile work environment based on race in violation of FEHA (Gov’t Code §12940(j)); (6) hostile work environment based on gender in violation of FEHA (Gov’t Code §12940(j)); (7) retaliation in violation of FEHA (Gov’t Code, §12940(h)); (8) failure to prevent discrimination, harassment, or retaliation in violation of FEHA (Gov’t Code, §§12940(j)-(k)); (9) assault; (10) battery; (11) false imprisonment; (12) IIED; and (13) negligent hiring, supervision, or retention.

REQUESTED RELIEF:

Defendant Arutyun Adzhemyan moves for summary adjudication on the first to seventh causes of action. Adzhemyan argues that the first to fourth causes of action fail because he is not Plaintiff’s employer. He also argues that the fifth and sixth causes of action fail because he is not an employee of Plaintiff’s employer. Adzhemyan seeks attorney’s fees and costs in connection with bringing this motion for summary adjudication.

Adzhemyan also filed a separate motion for sanctions pursuant to CCP §128.7.

DISCUSSION:

Motion for Summary Adjudication

By way of this motion, Adzhemyan seeks to adjudicate Plaintiff’s FEHA causes of action.

Race and Gender Discrimination Causes of Action (1st to 4th causes of action)

The Fair Employment and Housing Act (FEHA, Gov’t Code § 12900 et seq.) makes it an unlawful employment practice to discriminate against or harass any person based on race or gender (or other enumerated characteristics), or to retaliate against any person for challenging conduct outlawed by FEHA. (Gov’t Code, §12940(a).) Section 12940(i) also makes it unlawful for any person to “aid, abet, incite, compel, or coerce the doing of any of the acts forbidden under this part, or to attempt to do so.”

Adzhemyan argues that the first four causes of action fail because he is not Plaintiff’s employer. (Reno v. Baird (1998) 18 Cal.4th 640, 664 [“[W]e conclude that individuals who do not themselves qualify as employers may not be sued under the FEHA for alleged discriminatory acts.”].) He provides his own declaration as support for his initial burden in summary adjudication. He states that he is a security guard employed by Securitas Security Services, Inc. (“Securitas”). (Fact 1.) For approximately the last 19 years, he has worked as a security guard on the NBC studio lot in Universal City, California. (Fact 2.) He states that he has not been employed by the NBC Defendants at any time, including on January 19, 2017. (Fact 3.)

Preliminarily, the Court notes that the issues in a motion for summary judgment and/or summary adjudication are framed by the pleadings, since it is those allegations to which the motion must respond. (Scolinos v. Kolts (1995) 37 Cal.App.4th 635, 640.) For example, in the first and second causes of action, Plaintiff alleges in the FAC that NBC Defendants intentionally engaged in race and gender discrimination against her, by denying her special projects, training opportunities, promotions, and pay raises. (FAC, ¶¶64, 76.) She alleges that Adzhemyan, through his actions toward Plaintiff, compelled, coerced, aided, and abetted the discrimination, which is prohibited under Government Code, §12940(i). (Id., ¶¶67, 79.) The allegations in the third and fourth causes of action are similarly based on Adzhemyan’s alleged actions to aid and abet employer/NBC Defendants’ conduct. (See id., ¶¶89, 98.)

As framed by the pleadings, Plaintiff’s theory of liability against Adzhemyan for the FEHA causes of action is as one who aided and abetted the NBC Defendants—not as Plaintiff’s employer. Thus, his arguments and evidence in his motion fail to address the “aiding and abetting” allegations, and he has not met his initial burden in summary adjudication as to the FEHA causes of action. This is confirmed in Plaintiff’s opposition brief where she does not dispute that Adzhemyan is not her employer, but argues that whether he is an employer is irrelevant for the purposes of this motion because her FEHA claims against him are for “aiding and abetting” pursuant to Government Code, §12940(i). As Adzhemyan has failed to frame the issues correctly in his motion for summary adjudication to conform with the allegations in the FAC, Adzhemyan is not able to shift the burden to Plaintiff.

In addition, by relying solely on the argument that he is not an employer, Adzhemyan has also failed to challenge the essential elements of Plaintiff’s claims—nor has he shown that he has a complete defense—as required under the code to uphold his initial burden in summary adjudication. (See CCP §437c(f)(1), (p)(2).)

Moreover, a defendant is liable for aiding and abetting an employer’s violation of FEHA if it knew the employer’s conduct violated FEHA and gave substantial assistance to the employer to so act. (Alch v. Superior Court (2004) 122 Cal.App.4th 339, 389.) “An employee cannot aid and abet his or her corporate employer” since a corporation can only act through its employees; thus an employee acting on its employer’s behalf cannot act “in concert” with the employer, as there is in law only a single actor. (Fiol v. Doellstedt (1996) 50 Cal.App.4th 1318, 1326.) Based on the facts provided in Adzhemyan’s separate statement, he is neither Plaintiff’s employer and is not an employee of the NBC Defendants; thus, there may be an argument that he aided and abetted the NBC Defendants’ allegedly discriminatory acts. In contrast, had Adzhemyan provided facts showing that he was an employee of the NBC Defendants, then he could not be liable for aiding and abetting since an employee of a corporate employer cannot be liable for aiding and abetting the employer. (Id.; Janken v. GM Hughes Electronics (46 Cal.App.4th 55, 77-79.) [The Court notes that by making such comments, it is not ruling on the actual merits of Plaintiff’s FEHA claims against Adzhemyan.]

For the reasons above, the Court will deny the motion for summary adjudication as to the first, second, third, and fourth causes of action.

Hostile Work Environment Causes of Action (5th and 6th causes of action)

FEHA also makes it an unlawful employment practice for an employer or any other person, based on race or gender (or other enumerated characteristics), to harass an employee. (Gov’t Code, §12940(j)(1).) “An employee of an entity subject to this subdivision is personally liable for any harassment prohibited by this section that is perpetrated by the employee, regardless of whether the employer or covered entity knows or should have known of the conduct and fails to take immediate and appropriate corrective action.” (Gov. Code, §12940(j)(3).)

Adzhemyan argues that these causes of action fail because he is not an employee of the NBC Defendants and thus cannot be held personally liable for an alleged hostile work environment. He provides the same three facts and his declaration as evidence in support of this assertion.

As discussed above, Adzhemyan fails to address the allegations in the FAC as framed against him. In the FAC, Plaintiff alleges that she and other African-American and/or female employees have been subjected to unwanted harassing conduct from the NBC Defendants based on their race and gender. (FAC, ¶¶105, 117.) She alleges that this constitutes a hostile and abusive work environment. (Id., ¶¶107, 121.) She alleges that Adzhemyan, through his actions toward Plaintiff, compelled, coerced, aided, and abetted the discrimination, which is prohibited under Government Code, §12940(i). (Id., ¶¶109, 119; see Fiol v. Doellstedt (1996) 50 Cal.App.4th 1318, 1331 [stating that an supervisor/employee may be personally liable for harassment by personally engaging in harassment or aiding and abetting such conduct].)

Even if Adzhemyan’s argument that he is not an employee of the NBC Defendants were considered on its merits, Adzhemyan has failed to uphold his initial burden in this regard as well. The only evidence in support of this is his declaration wherein he states that he has been employed by Securitas for 19 years, he works on the NBC lot, and he has never been employed by the NBC Defendants. However, this declaration fails to provide any evidentiary support for his statements, and no documents such as his employment contract(s) are provided. Rather, the determination of whether an employer-employee relationship is a legal determination based primarily on the right of control. (S.G. Borello & Sons, Inc. v. Dep’t of Industrial Relations (1989) 48 Cal.3d 341, 351; Ayala v. Antelope Valley Newspapers, Inc. (2014) 59 Cal.4th 522.) No such showing has been made by Adzhemyan.

Thus, for the same reasons as discussed above, the Court will deny the motion for summary adjudication as to the fifth and sixth causes of action.

Retaliation in violation of FEHA (7th cause of action)

FEHA makes it an unlawful employment practice for “any employer, labor organization, employment agency, or person to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part.” (Gov. Code, §12940(h).)

Adzhemyan argues that this cause of action fails because he is not Plaintiff’s employer and thus cannot be held personally liable for any alleged retaliation.

Adzhemyan relies on Jones v. Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158, 1173, wherein the Supreme Court stated: “[W]e conclude that the employer is liable for retaliation under section 12940, subdivision (h), but nonemployer individuals are not personally liable for their role in that retaliation.” However, Jones involved a lawsuit against an employer and a supervisor (i.e., an employee of the employer). (See Rutter Guide, Cal. Prac. Guide Civ. Pro. Trial Claims and Def. (June 2018 Update) Ch. 13(III)-B, §13:712 [stating, individual managers and employees are not liable for participation in acts claimed to be retaliatory, citing Jones]; see also Reno, supra, 18 Cal.4th 640 [lawsuit against employer and supervisor].) Though the Supreme Court discussed “nonemployer individuals”, this was discussed in the context of a supervisor/employee of the employer, but not with regard to third parties or persons who are not employed by the employer. Thus, this instant case is distinguishable as Adzhemyan argues he is neither an employer nor a fellow employee. Plaintiff has not provided case law showing that a third-party, non-employer or non-employee individual cannot be held liable under section 12940(i).

Further, as discussed above with regard to the first to fourth causes of action, the allegations against Adzhemyan are not that he is an employer of Plaintiff—rather, Plaintiff alleges in this cause of action that Adzhemyan aided and abetted the NBC Defendants in their retaliatory conduct. (See FAC, ¶¶135.) Because the issues raised in Adzhemyan’s motion do not address the allegations as framed by the FAC, Adzhemyan has not upheld his initial burden in summary adjudication.

The Court will deny the motion for summary adjudication as to the seventh cause of action.

Attorney’s Fees and Costs

Adzhemyan requests attorney’s fees and costs pursuant to Government Code, §12965. Subsection (b) states in part: “In civil actions brought under this section, the court, in its discretion, may award to the prevailing party, including the department, reasonable attorney’s fees and costs, including expert witness fees.”

Based on the ruling above, the Court will deny the request for attorney’s fees and costs.

Motion for CCP §1287.7 Sanctions

Adzhemyan moves for sanctions pursuant to CCP §128.7(b)(1)-(3) against Plaintiff and her counsel, on the grounds that the first to seventh causes of action fail against him as a matter of law because he is not Plaintiff’s employer, nor an employee of Plaintiff’s employer.

As this motion is based on the same reasons as the motion for summary adjudication, the Court should deny this motion. As discussed above, Adzhemyan is not being sued as an employer of the NBC Defendants, nor necessarily as an employee, but is being sued as someone who aided and abetted her employer in undertaking such acts. This particular basis alleged in the FAC against Adzhemyan was not discussed by Adzhemyan in his moving papers. The Court did not make any substantive rulings regarding the “aid and abetting” allegations, but noted that for the purposes of summary judgment and adjudication, Adzhemyan had a specific burden, which he failed to meet.

The Court declines to award sanctions in favor of Plaintiff for filing an opposition to this motion.

RULING:

Deny Adzhemyan’s motion for summary adjudication.

Deny the motions for CCP §128.7 sanctions.