Case Name: James Englehart v. Seele, Inc., et al.

Case No.: 17CV319854

(1) Demurrer to Complaint
(2) Motion to Strike Portions of Complaint

Factual and Procedural Background

Plaintiff James Englehart (“Englehart”) began working for defendant Seele, Inc. (“Seele”) in or around July 8, 2016 as an apprentice journeyman. (Complaint, ¶13.) Seele was contracted to work on the Apple campus II construction project. (Id.) Defendant Seele employed defendant Robert Jeffers (“Jeffers”) as a journeyman iron worker. (Complaint, ¶14.) Plaintiff Englehart and defendant Jeffers were often alone together when they worked on a man lift, sometimes 80 feet in the air. (Complaint, ¶15.)

Beginning July 2016, defendant Jeffers subjected plaintiff Englehart to frequent, ongoing, unwelcome conduct of a sexual nature. (Complaint, ¶16.) Defendant Jeffers criticized plaintiff Englehart’s performance, trying to make plaintiff look bad for rejecting his advances. (Complaint, ¶17.) Supervisors at defendant Seele saw and heard defendant Jeffers’ inappropriate conduct towards plaintiff, but thought it was a joke. (Complaint, ¶18.)

Toward the end of July 2016, plaintiff Englehart approached defendant Seele safety coordinator, Victor Colon (“Colon”), and made a report to him about defendant Jeffers. (Complaint, ¶19.) Plaintiff Englehart met with Colon, foreman Charlie Thomas (“Thomas”), and supervisor Jason Orlic who decided plaintiff would be moved and assigned to a new journeyman. (Complaint, ¶¶20 – 21.) Colon spoke to defendant Jeffers and told him to “quit it” because he was offending people. (Complaint, ¶22.) For the next few days, plaintiff only saw defendant Jeffers at lunch and defendant Jeffers did not engage in any offensive conduct. (Id.) Soon afterwards, defendant Jeffers tried to get plaintiff Englehart fired. (Complaint, ¶23.) Defendant Jeffers continued engaging in inappropriate sexual conduct and making inappropriate sexual comments toward plaintiff Englehart. (Complaint, ¶¶25 – 30.)

In or around mid-August [2016], plaintiff Englehart went to foreman Thomas’ office to again complaining about defendant Jeffers and demanding defendant Jeffers be terminated. (Complaint, ¶31.) Thomas moved plaintiff Englehart to a different crew. (Id.) Two days later, plaintiff Englehart explained about Jeffers’ conduct to an individual named Nico, believed to be head of Seele’s America Operations. (Complaint, ¶¶32 – 33.) Nico told plaintiff Englehart he would be transferred to a fitness center job site, one half mile away. (Complaint, ¶33.) Plaintiff Englehart believes he was improperly transferred to a different union. (Complaint, ¶34.) Plaintiff Englehart’s job duties changed and he became a “gopher” for the glazers who worked at the fitness center. (Id.) Plaintiff questioned Thomas about the apparent demotion and Thomas stated it was because everyone loved defendant Jeffers and Jeffers was terminated. (Complaint, ¶35.) On or about August 28, 2016, plaintiff Englehart emailed Thomas describing his complaints of harassment and retaliation. (Complaint, ¶36.) Plaintiff Englehart stated he lost overtime payments as a result of complaining and requested the union contract be honored and he be returned to the Apple worksite. (Id.) Nico responded by telling plaintiff to return to work and not to complain any further. (Complaint, ¶¶37 – 38.)

After returning to work at the fitness center, plaintiff Englehart took a day off to visit a doctor regarding a previous medical condition. (Complaint, ¶39.) Plaintiff’s supervisor required plaintiff show his appointment paperwork and inquired about the cause of the medical condition to which plaintiff responded that second hand smoke was the primary cause. (Id.) Later that week, a supervisor stood next to plaintiff during a safety meeting and smoked a cigarette. (Complaint, ¶40.) At a break, the same supervisor again came up to plaintiff and smoked a cigarette next to him while plaintiff was seated in a designated non-smoking area. (Id.) Plaintiff complained to Seele’s safety coordinator. (Id.) On a third occasion, the same supervisor sat next to plaintiff and smoked a cigarette while plaintiff was eating lunch. (Complaint, ¶41.) Plaintiff again complained. (Id.) Later that day, Seele laid off plaintiff Englehart. (Complaint, ¶42.)

On November 30, 2017, plaintiff Englehart filed a complaint against defendants Seele and Jeffers asserting causes of action for:

(1) Sexual Harassment
(2) Failure to Take Steps to Prevent and/or Correct Harassment, Discrimination, and Retaliation
(3) Retaliation
(4) Wrongful Termination in Violation of Public Policy
(5) Assault
(6) Battery

On February 6, 2018, defendant Seele filed the two motions now before the court, (1) a demurrer to the fifth and sixth cause of action of the complaint; and (2) a motion to strike portions of the complaint.

I. Defendant Seele’s demurrer to the fifth and sixth causes of action is OVERRULED.

Defendant Seele demurs to the fifth and sixth causes of action for assault and battery by arguing that it is not vicariously liable for the actions of defendant Jeffers because he was not acting in the course and scope of his employment. “Under the doctrine of respondeat superior, an employer is vicariously liable for his employee’s torts committed within the scope of the employment.” (Perez v. Van Groningen & Sons (1986) 41 Cal.3d 962, 967; see also CACI, No. 3700.) “Equally well established, if somewhat surprising on first encounter, is the principle that an employee’s willful, malicious and even criminal torts may fall within the scope of his or her employment for purposes of respondeat superior, even though the employer has not authorized the employee to commit crimes or intentional torts.” (Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 296 – 297 (Lisa M.).) “Ordinarily, the determination whether an employee has acted within the scope of employment presents a question of fact; it becomes a question of law, however, when ‘the facts are undisputed and no conflicting inferences are possible.’” (Lisa M., supra, 12 Cal.4th at p. 299; see also CACI, Nos. 3720, 3722, and 3723.) Defendant Seele contends Jeffers was not acting in the course and scope of his employment when he engaged in the alleged misconduct.

The court need not decide whether the complaint adequately alleges defendant Jeffers was acting in the course and scope of his employment with Seele because defendant Seele acknowledges that it can also be held liable for defendant Jeffers’ misconduct based on allegations of ratification.

“ ‘[A]n employer may be liable for an employee’s act where the employer either authorized the tortious act or subsequently ratified an originally unauthorized tort. [Citations.] The failure to discharge an employee who has committed misconduct may be evidence of ratification. [Citation.] The theory of ratification is generally applied where an employer fails to investigate or respond to charges that an employee committed an intentional tort, such as assault or battery. [Citations.] Whether an employer has ratified an employee’s conduct is generally a factual question. [Citation.]’ ” [Citation.]

(Ventura v. ABM Industries Incorporated (2012) 212 Cal.App.4th 258, 272; emphasis added.)

Here, plaintiff Englehart alleged that beginning July 2016, defendant Jeffers grabbed plaintiff’s crotch and chest and “would come up from behind Plaintiff … and thrust into Plaintiff’s rear while he was working, and sometimes on Plaintiff’s side of his hip. Plaintiff could sometimes feel Jeffers’s penis through his clothes.” (Complaint, ¶16.) “Supervisors at Seele saw and heard Jeffers’s inappropriate conduct towards Plaintiff. One of the foreman, Axyl [last name unknown] told Jeffers to shut up, but it appeared to Plaintiff that the supervisors though it was a joke.” (Complaint, ¶17.) After plaintiff complained at the end of July 2016, plaintiff was assigned to a new journeyman, but the harassment continued, even in the presence of another foreman. (Complaint, ¶¶19 – 30.) “Again, in or around mid-August, Plaintiff went to foreman Thomas’s office and said he had had enough of the continued harassment and he wanted Jeffers to be terminated. Thomas said he did not know what to do and that they had never dealt with this before. Plaintiff asked what there was to know since the company allegedly had a zero tolerance sexual harassment policy.” (Complaint, ¶31.) “[R]atification may occur when an employer learns of misconduct and fails to discharge an agent or employee.” (C.R. v. Tenet Healthcare Corp. (2009) 169 Cal.App.4th 1094, 1111.) The complaint here includes sufficient allegations of ratification by Seele to overcome demurrer.

Defendant’s reliance on Fretland v. County of Humboldt (1999) 69 Cal.App.4th 1478 (Fretland) and workers’ compensation exclusivity is similarly overcome. Defendant Seele relies on Fretland for the proposition that, “the exception to the exclusivity rule contained in section 3602, subdivision (b)(1), does not authorize a civil action against an employer for injury resulting from the willful assault of a coemployee based on a theory of respondeat superior.” (Fretland, supra, 69 Cal.App.4th at p. 1489.) However, the Fretland court went on to note that the inquiry does not end because “the prohibition against imposing vicarious liability on an employer does not apply when there was ‘positive misconduct’ by the employer such as when the employer ‘ratified’ the tortious conduct of its employee and thereby became ‘liable for the employee’s wrongful conduct as a joint participant.’ [Citation.]” (Id.) In light of the allegations of ratification identified above, workers’ compensation exclusivity does not apply.
Accordingly, defendant Seele’s demurrer to the fifth and sixth causes of action in plaintiff Englehart’s complaint on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code Civ. Proc., §430.10, subd. (e)] for assault and battery, respectively, is OVERRULED.

II. Defendant Seele’s motion to strike portions of plaintiff Englehart’s complaint is DENIED.

Defendant Seele moves to strike plaintiff Englehart’s allegations regarding punitive damages. Pursuant to Civil Code section 3294, punitive damages may be recovered “where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice.”

In G.D. Searle & Co. v. Superior Court (1975) 49 Cal.App.3d 22, 26 (Searle), the court wrote, “In California the award of damages by way of example or punishment is controlled by Civil Code section 3294, which authorizes that kind of award against a tortfeasor who has been guilty of ‘oppression, fraud or malice, express or implied.’” “Notwithstanding relaxed pleading criteria, certain tortious injuries demand firm allegations. Vague, conclusory allegations of fraud or falsity may not be rescued by the rule of liberal construction. When the plaintiff alleges an intentional wrong, a prayer for exemplary damage may be supported by pleading that the wrong was committed willfully or with a design to injure. When nondeliberate injury is charged, allegations that the defendant’s conduct was wrongful, willful, wanton, reckless or unlawful do not support a claim for exemplary damages; such allegations do not charge malice.” (Id. at p. 29; internal citations omitted.)

“Punitive damage allegations cannot be pleaded generally. The complaint must allege facts showing statutory ‘oppression,’ ‘malice’ or ‘fraud’ (Civil Code §3294(a), (c)).” (Flahavan, Rea & Kelly, CAL. PRAC. GUIDE: PERSONAL INJURY (The Rutter Group 2005) ¶5:428, p. 5-165.) “In determining whether a complaint states facts sufficient to sustain punitive damages, the challenged allegations must be read in context with the other facts alleged in the complaint. Further, even though certain language pleads ultimate facts or conclusions of law, such language when read in context with the facts alleged as to defendants’ conduct may adequately plead the evil motive requisite to recovery of punitive damages.” (Monge v. Superior Court (1986) 176 Cal.App.3d 503 citing Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6 – 7.)

“‘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.” (Civil Code §3294, subd. (c)(1); emphasis added.) “ ‘Oppression’ means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” (Civil Code §3294, subd. (c)(2).)

To plead a “willful and conscious disregard of the rights of others,” a plaintiff must allege, “that the defendant was aware of the probable dangerous consequences of his conduct, and that he willfully and deliberately failed to avoid those consequences.” (Lackner v. North (2006) 135 Cal.App.4th 1188, 1211 (Lackner).)

Here, plaintiff Englehart included allegations that defendant Seele “knew of the probable injurious consequences of defendant Jeffers’s continued employment, including unlawful harassment, but deliberately failed to avoid these consequences by deliberately choosing to continue his employment and by deliberately failing to restrain him, despite ample notice, from engaging in unlawful, discriminatory harassment.” (Complaint, ¶¶52, 62, 73, 82, 91, and 101.) Defendant Seele contends this allegation is conclusory and boilerplate and lacks any factual detail. The court disagrees. Defendant’s knowledge is an averment of fact. Moreover, these allegations are supported by factual allegations found earlier in the pleading. Specifically, plaintiff Englehart alleges he complained to his supervisors about Jeffers’ conduct and/or that Seele supervisors were aware of Jeffers’ conduct. Despite Seele’s awareness of Jeffers’ conduct, Jeffers continued to engage in harassing conduct. Such allegations are sufficient to support plaintiff Englehart’s allegation that Seele’s failure to take action was deliberate. Plaintiff’s allegations that Seele took progressive steps against Jeffers does not undercut plaintiff’s position particularly in light of plaintiff’s allegation that defendant had a “zero tolerance sexual harassment policy.” (See Complaint, ¶31.)

Defendant Seele argues further that “willful and conscious disregard” must be accompanied by “despicable” conduct. “‘Despicable conduct’ has been described as conduct which is so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people. [Citation.] Such conduct has been described as ‘[having] the character of outrage frequently associated with crime.’” (American Airlines, Inc. v. Sheppard, Mullin, Richter & Hampton (2002) 96 Cal.App.4th 1017, 1050.) “[I]n cases involving conduct performed without intent to harm, a finding of ‘malice’ for punitives purposes requires proof by clear and convincing evidence that defendant’s tortious wrong amounted to ‘despicable conduct’ and that such despicable conduct was carried on with a ‘willful and conscious disregard’ of the rights or safety of others.” (See College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704 (College Hospital).)

“Malice” is defined as conduct “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.” [Citation.] As noted earlier, the italicized words were added by the 1987 Reform Act. We assume they are not surplusage. [Citation.]

By adding the word “willful” to the “conscious-disregard” prong of malice, the Legislature has arguably conformed the literal words of the statute to existing case law formulations. [Citation.] However, the statute’s reference to “despicable” conduct seems to represent a new substantive limitation on punitive damage awards. Used in its ordinary sense, the adjective “despicable” is a powerful term that refers to circumstances that are “base,” “vile,” or “contemptible.” [Citation.] As amended to include this word, the statute plainly indicates that absent an intent to injure the plaintiff, “malice” requires more than a “willful and conscious” disregard of the plaintiffs’ interests. The additional component of “despicable conduct” must be found.

(College Hospital, supra, 8 Cal.4th at p. 725.)

This court is of the opinion that plaintiff’s allegations, if treated as true for purposes of a demurrer/motion to strike, concerning Seele’s conduct in this matter could be considered despicable and looked down upon and despised by ordinary decent people. In particular, allegations that defendant Seele retaliated against plaintiff and/or ratified defendant Jeffers’ conduct are facts which the court and a trier of fact might find despicable. Unlike Lackner, the court cannot, at this stage of the proceeding, find as a matter of law, that the conduct alleged by plaintiff could not be considered despicable.

Accordingly, defendant Seele’s motion to strike portions of plaintiff Englehart’s complaint is DENIED.