JACOB BLALOCK vs. HALT GOLD GROUP, LLC Lawsuit

Case Number: BC670702 Hearing Date: March 22, 2018 Dept: 53

JACOB BLALOCK, et al. vs. HALT GOLD GROUP, LLC , et al.; BC670702, March 22, 2018

[Tentative] Order RE: DEFENDANT ALEXANDER ORBISON’S DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT AS TO THE FOURTH AND SIXTH CAUSES OF ACTION

Defendant Alexander Orbison’s Demurrer to Plaintiff’s First Amended Complaint as to the Fourth and Sixth Causes of Action is SUSTAINED WITH LEAVE TO AMEND.

BACKGROUND

Plaintiffs Jacob Blalock and Benjamin Novack (jointly, “Plaintiffs”) filed the instant action on August 1, 2017 against Defendants Halt Gold Group, LLC (“Halt Gold Group”), Mike Celano (“Celano”), Charley Chartoff (Chartoff), John “Jack” Hanney (“Hanney”), and Alexander Orbison (“Orbison”) (collectively, “Defendants”). The operative First Amended Complaint (“FAC”) was filed on November 29, 2017, and asserts ten causes of action stemming from Plaintiffs’ employment with Halt Gold Group.
Orbison now demurs to the fourth (hostile work environment) and sixth (intentional infliction of emotional distress) causes of action on the grounds that they fail to set forth facts sufficient to constitute a cause of action. Plaintiffs oppose.

DISCUSSION

A. Hostile Work Environment

The Fair Employment and Housing Act prohibition on harassment states: “It is an unlawful employment practice. . . .[f]or an employer, labor organization, employment agency, apprenticeship training program or any training program leading to employment, any other person, because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military veteran status, to harass an employee, an applicant, an unpaid intern or volunteer, or person providing services pursuant to a contract.” (Govt. Code, § 12940(j)(1).) A hostile work environment is a recognized form of harassment. To establish a hostile work environment, harassment must be so severe or pervasive as to alter the conditions of the victim’s employment and create an abusive working environment based on the protected characteristic. (See Hughes v. Pair (2009) 46 Cal.4th 1045, 1043.) Harassment must be of a repeated, routine, or generalized nature when the harassing conduct is not severe. (See Lyle v. Warner Bros. Television Productions (2006) 38 Cal.4th 264, 283.) Harassment that is occasional, isolated or sporadic is insufficient. (See id.)

Generally, conduct necessary for management of the employer’s business cannot constitute harassment. (See Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 63.) However, actions characterized as official employment actions may establish discriminatory animus to support a harassment claim. (See Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 707-11.)

Orbison demurs to this cause of action on the basis that no personal liability exists under the FEHA for failure to prevent harassment by others. (See Fiol v. Doellstedt (1996) 50 Cal.App.4th 1318, 1326.) Plaintiffs allege in the FAC that they were subjected to a hostile work environment due to Celano’s harassing conduct, including racist and sexual comments and inappropriate conduct toward his assistant. (FAC, ¶¶ 18, 19, 106, 107.) Plaintiffs do not allege that Orbison engaged in any harassing conduct. Rather, Plaintiffs allege only that Orbison ignored and minimized Celano’s conduct, failed to take “real action,” and subsequently “ratified” the termination of their employment. (FAC, ¶¶ 110-111.) In opposition, Plaintiffs contend that Orbison was an “aider and abettor,” namely that Orbison voted to fire Plaintiffs after they challenged Celano’s alleged harassing conduct. Liability may be imposed on one who aids and abets the commission of an intentional tort if the person (a) knows the other’s conduct constitutes a breach of duty and give substantial assistance or encouragement to the other to so act or (b) gives substantial assistance to the other in accomplishing a tortious result and the person’s own conduct, separately considered, constitutes a breach of duty to the third person. (Fiol, supra, 50 Cal.App.4th at p. 1325.) The Court finds that the allegations as stated in the FAC are insufficient to show that Orbison “aided and abetted” Celano’s conduct. There is no allegation that Orbison gave substantial assistance or encouragement to Celano to engage in the conduct. Further, as noted by Orbison, “[a] supervisor does not aid and abet the employer by mere inaction” or “by acts constituting personnel management decisions.” (Id. at p. 1332.) Therefore, the Court sustains the demurrer to the fourth cause of action as to Orbison.

B. IIED

To prevail on an IIED claim, plaintiff must prove: “(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 extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct.” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050). “[L]iability does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities, but only to conduct so extreme and outrageous as to go beyond all possible bonds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” (Alcorn v. Anbro Eng’g, Inc. (1970) 2 Cal.3d 493, 499, fn. 5.)

The Court previously sustained a demurrer by the other defendants to this same cause of action, and the Court reiterates its ruling. The conduct alleged by Plaintiffs in support of their IIED cause of action is as follows: 1) Plaintiffs were discharged and retaliated against for challenging illegal and inappropriate conduct by Celano; 2) Plaintiffs were subjected to Celano’s inappropriate comments; and 3) Plaintiffs were defamed by Halt Gold Group and Hanney to other Halt Gold Group employees as well as customers. The Court finds that none of the alleged conduct is “extreme and outrageous” as to constitute an IIED cause of action. For one, the conduct was not directed towards Plaintiffs. (See Light v. California Department of Parks and Recreation (2017) 14 Cal.App.5th 75, 102 [“[t]he law limits [IIED claims] to egregious conduct toward plaintiff proximately caused by defendant”] [emphasis in original].) The inappropriate comments were alleged to have been witnessed by Plaintiffs and/or about Plaintiffs but were directed towards others, including Celano’s non-party assistant. (FAC, ¶¶ 18-19.) Similarly, the allegedly defamatory statements were made about Plaintiffs but were not directed towards them. (FAC, ¶¶ 29-33, 44.) Further, Plaintiffs’ contention that conduct amounting to retaliation in violation of FEHA was sufficient to state an IIED cause of action is belied by the case to which Plaintiffs cite. As noted by Defendants, in Light v. California Department of Parks and Recreation, the Court of Appeal held that the retaliatory conduct at issue must also satisfy the elements of an IIED cause of action. (Id. at p. 101.) Indeed, the Court of Appeal found that a triable issue of fact for an IIED claim existed as to one of the defendants because this defendant “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.” (Id. at p. 102.) The Court finds that the allegations in the FAC do not rise to this level of extreme and outrageous conduct. In addition, the Court finds that the FAC fails to sufficiently allege that Orbison engaged in any offensive conduct toward Plaintiffs. Therefore, the demurrer to the sixth cause of action as to Orbison is sustained.

CONCLUSION

For the foregoing reasons, Orbison’s Demurrer to Plaintiff’s First Amended Complaint as to the Fourth and Sixth Causes of Action is SUSTAINED WITH LEAVE TO AMEND. Plaintiffs are to file an amended complaint, if any, within 10 days of this Order.

Orbison is to provide notice of this ruling.

DATED: March 22, 2018

_____________________________

Howard L. Halm

Judge of the Superior Court

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