Preview
1 Scott A. Lewis, Bar No. 149094
Regan V. Masi, Bar No. 339485
2 PERRY, JOHNSON, ANDERSON,
3 MILLER & MOSKOWITZ, LLP
438 1st Street, 4th Floor
4 Santa Rosa, California 95401
Telephone: (707) 525-8800
5 Facsimile: (707) 545-8242
6 Email: lewis@perrylaw.net
masi@perrylaw.net
7
Attorneys for Defendant
8 DEMA CONSULTING &
9 MANAGEMENT, LLC.
10
11 SUPERIOR COURT OF THE STATE OF CALIFORNIA
12 COUNTY OF SONOMA
PERRY, JOHNSON, ANDERSON,
MILLER & MOSKOWITZ LLP
13
KYLE WESCOTT, an individual, Case No. SCV-272279
14
15 Plaintiff, MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF
16 v. DEMA CONSULTING &
MANAGEMENT, LLC’s MOTION
17 DEMA CONSULTING & FOR SUMMARY JUDGMENT,
18 MANAGEMENT, LLC, a California ALTERNATIVELY SUMMARY
limited liability company; and DOES ADJUDICATION
19 1-99, inclusive,
Date:
20 Defendants. Time:
21 Dept.: 17
22 Complaint filed: December 12, 2022
Trial date: August 30, 2024
23 /
24
25
26
27
28
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMA CONSULTING & MANAGEMENT, LLC’s
MOTION FOR SUMMARY JUDGMENT, ALTERNATIVELY SUMMARY ADJUDICATION
1 TABLE OF CONTENTS
2
3
I. INTRODUCTION .................................................................................................... 1
4
II. STATEMENT OF UNDISPUTED MATERIAL FACTS ............................... 2
5
A. Background......................................................................................................... 2
6
B. Alleged Harassment ......................................................................................... 3
7
C. Theft, Insubordination and Termination ................................................... 5
8
D. DEMA’s Prevention of Workplace Harassment ......................................... 7
9
E. Alleged Failure to Reimburse for Work-Related Expenses ..................... 8
10
III.STANDARDS OF SUMMARY JUDGMENT................................................... 8
11
IV. LEGAL ARGUMENT ........................................................................................... 8
12
1. Plaintiff Cannot Establish His First Cause of Action for Unlawful
PERRY, JOHNSON, ANDERSON,
MILLER & MOSKOWITZ LLP
13 Retaliation Because He Never Engaged in Protected Activity and His
Termination for Theft Was Legitimate. (Labor Code § 1102.5) ............... 9
14
A. Plaintiff Cannot Establish That He Engaged in a Protected
15 Activity...................................................................................................... 10
16 B. There Is No Causal Relationship Between Plaintiff’s Theft and
His Alleged Complaint. ......................................................................... 11
17
2. Plaintiff Cannot Maintain His Second Cause of Action For Labor Code
18 § 6310 Retaliation For The Same Reasons. Cause One Failed. There Is
No Retaliation.................................................................................................... 13
19
3. Defendant is Entitled to Summary Judgment or in the alternative,
20 Summary Adjudication Because Plaintiff Cannot Establish His Third
Cause of Action for FEHA Harassment: Work Environment
21 Harassment. (Gov. Code§§ 12923 & 12940(j).)........................................... 14
22 4. Defendant is Entitled to Summary Judgment or in the alternative,
Summary Adjudication because Plaintiff Cannot Establish His Fourth
23 Cause of Action for FEHA Retaliation. (Gov. Code § 12940(h).) ............ 20
24 5. Defendant is Entitled to Summary Judgment or in the alternative,
Summary Adjudication because Plaintiff Cannot Establish His Fifth
25 Cause of Action for FEHA Failure to Prevent Harassment or
Retaliation. (Gov Code §12940(k).) ............................................................... 21
26
6. Defendant is Entitled to Summary Judgment or in the alternative,
27 Summary Adjudication because Plaintiff Cannot Establish His Sixth
Cause of Action for Wrongful Discharge in Violation of Public Policy. 22
28
i
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMA CONSULTING & MANAGEMENT, LLC’s
MOTION FOR SUMMARY JUDGMENT, ALTERNATIVELY SUMMARY ADJUDICATION
1 7. Defendant is Entitled to Summary Judgment or in the alternative,
Summary Adjudication because Plaintiff Cannot Establish His
2 Seventh Cause of Action for Failure to Provide Accurate Wage
Statements. (Labor Code § 226.) ................................................................... 23
3
8. Defendant is Entitled to Summary Judgment or in the alternative,
4 Summary Adjudication because Plaintiff Cannot Establish His Eighth
Cause of Action for Waiting Time Penalty. (Labor Code § 203.)............ 23
5
9. Defendant is Entitled to Summary Judgment or in the alternative,
6 Summary Adjudication because Plaintiff Cannot Establish His Ninth
Cause of Action for Failure to Indemnify Employee. (Labor Code §
7 2802.) ................................................................................................................... 24
8 V. CONCLUSION ...................................................................................................... 24
9
10
11
12
PERRY, JOHNSON, ANDERSON,
MILLER & MOSKOWITZ LLP
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
ii
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMA CONSULTING & MANAGEMENT, LLC’s
MOTION FOR SUMMARY JUDGMENT, ALTERNATIVELY SUMMARY ADJUDICATION
1 TABLE OF AUTHORITIES
2 Cases
3 Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, at 849, 864-865 ...............8, 9
4 Aguilar v. Avis Rent a Car System, Inc., (1999) 21 Cal.4th 121, 130, 131 ..........15, 16
5 Alamo v. Practice Management Information Corp. (2013) 219 Cal.App.4th
6 466, 479 ..............................................................................................................................22
7 Arteaga v. Brink’s, Inc. (2008) 163 Cal.App.4th 327, 342, 344, 352 .....................11, 12
8 Caldera v. Dept. of Corrections and Rehabilitation, (2018) 25 Cal. App. 5th
31, 38...................................................................................................................................15
9
Colmenares v. Braemar Country Club, Inc. (2003) 29 Cal.4th 1019, 1031, fn.
10
6 ...........................................................................................................................................14
11
Faragher v. City of Boca Raton (1998) 524 U.S. 775, 788 ............................................16
12
Fisher v. San Pedro Peninsula Hospital, (1989) 214 Cal.App.3d 590, 608 ...............16
PERRY, JOHNSON, ANDERSON,
MILLER & MOSKOWITZ LLP
13
Fuentes v. Autozone, Inc. (2011) 200 Cal. App. 4th 1221 ........................................19, 20
14
Guz v. Bechtel (2000) 24 Cal. 4th 317, 354.......................................................................13
15
16 Haberman v. Cengage Learning, Inc. (2009) 180 Cal.App.4th 365, 371, 373,
382 .................................................................................................................................19, 20
17
Harris v. City of Santa Monica (2013) 56 Cal.4th
18 203, 232; CACI No. 2507 ..........................................................................................21, 22
19
Harris v. Forklift Systems, Inc., (1993) 510 U.S. 17, 21, 23 .........................................16
20
Hughes v. Pair, (2009) 46 Cal.4th 1035, 1042-1043 .......................................................14
21
Lawson v. PPG Architectural Finishes, Inc. (2022) 12 Cal.5th 703, 713-714...........11
22
Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 283 ...........15
23
Mamou v. Trendwest Resorts, Inc. (2008) 165 Cal.App.4th 686, 713 .........................21
24
25 Manavian v. Department of Justice (2018) 28 Cal.App.5th 1127, 1141 ......................9
26 Markel American Ins. Co. v. G.L. Anderson Ins. Services, Inc. (E.D. Cal.
2010) 715 F.Supp.2d 1068, 1077 ..................................................................................21
27
McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 ...............................................13
28
iii
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMA CONSULTING & MANAGEMENT, LLC’s
MOTION FOR SUMMARY JUDGMENT, ALTERNATIVELY SUMMARY ADJUDICATION
1 Muller v. Auto. Club of So. Cal. (1998) 61 Cal.App.4th 431, 452 ................................14
2 Oncale v. Sundowner Offshore Services, Inc. (1998) 523 U.S. 75, 81 .........................15
3 Oyarzo v. Tuolumne Fire Dist. (2013) 955 F.Supp.1038, 1097-1098 ..........................14
4
Perry v. Bakewell Hawthorne, LLC (2017) 2 Cal.5th 536, 542 ......................................8
5
Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 769 .......................................19
6
Sheffield v. LA Cnty. Dep't of Soc. Servs., (2003) 109 Cal. App.4th 134, 149-
7 150, 153, 162 ...............................................................................................................16, 17
8 Soto v. Motel 6 Operating, L.P., (2016) 4 Cal. App.5th 385, 391 ..................................23
9
Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal. 4th 1028, 1047 ................................10, 14
10
Other Authorities
11
CACI 2430 ...............................................................................................................................22
12
CACI 2527 ...............................................................................................................................21
PERRY, JOHNSON, ANDERSON,
MILLER & MOSKOWITZ LLP
13
CACI 2705 ...............................................................................................................................24
14
15 CACI 4605 ...............................................................................................................................13
16 Fair Employment and Housing Act (FEHA) .................................................. 7, 14, 20, 21
17 Government Code §12923 .................................................................................................. 14
18 Government Code §§ 12940(h),12940(j), 12940(k) ............................................ 14, 20, 21
19 Labor Code §§ 201, 201.3, 201.5, 201.6, 201.8, 201.9 ................................................... 24
20
Labor Code § 202................................................................................................................... 24
21
Labor Code §§ 203, 203(a) ............................................................................................. 23, 24
22
Labor Code § 205.5 ............................................................................................................... 24
23
Labor Code § 226....................................................................................................................23
24
Labor Code §§ 1102.5, 1102.6............................................................................. 9, 11, 13, 20
25
26 Labor Code §§ 2802, 2802(a) .................................................................................... 8, 23, 24
27 Labor Code §§ 6310, 6310(a)(1)...............................................................................13, 14, 20
28 Labor Code § 6402 ................................................................................................................ 14
iv
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMA CONSULTING & MANAGEMENT, LLC’s
MOTION FOR SUMMARY JUDGMENT, ALTERNATIVELY SUMMARY ADJUDICATION
1 Penal Code § 147(e)(f) .........................................................................................................2, 7
2 Vehicle Code § 31 .................................................................................................................2, 7
3 Webster's Collegiate Dict. (11th ed. 2007 p. 1140, col. 2) .............................................15
4
5
6
7
8
9
10
11
12
PERRY, JOHNSON, ANDERSON,
MILLER & MOSKOWITZ LLP
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
v
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMA CONSULTING & MANAGEMENT, LLC’s
MOTION FOR SUMMARY JUDGMENT, ALTERNATIVELY SUMMARY ADJUDICATION
1 I. INTRODUCTION
2 This controversy involves a claim by Plaintiff Kyle Wescott against his
3 employer for sexual harassment. DEMA Consulting is an emergency facilities
4 manager that provides medical care and housing for the unsheltered population
5 pursuant to contracts with the County of Sonoma. Plaintiff worked for DEMA for 11
6 months, during which time he was rapidly promoted from EMT to Site Manager at
7 DEMA’s housing shelter located at the Windsor Holiday Inn. Plaintiff was very well
8 liked. Unfortunately, he was terminated February 15, 2022, following allegations
9 that he had stolen a puppy from a DEMA resident. During the termination
10 conference, Plaintiff angrily threatened to sue DEMA for sexual harassment.
11 True to that threat, Plaintiff filed the instant action on December 16, 2022 for
12 workplace harassment, retaliation, wrongful termination and reimbursement of
PERRY, JOHNSON, ANDERSON,
MILLER & MOSKOWITZ LLP
13 business expenses.
14 Plaintiff’s claims are frivolous. The central theme of his action involves the
15 allegation that he was shamed into removing his shirt during a barbecue hosted by
16 owners of DEMA. Evidence includes photos and videos depicting Plaintiff dancing,
17 smiling and posing shirtless with workmates. Yet, he contends he was lured to the
18 home of DEMA owners on the false pretense that he was going to a business meeting.
19 The “meeting”, he claims, turned into an alcohol fueled party where women chanted
20 “take off your shirt.” Plaintiff claims he, and friend Branden Bowman, felt compelled
21 to do so. Plaintiff explains the photos of him smiling and dancing were his attempt
22 to put the best face on an embarrassing event. Witnesses will testify that Plaintiff
23 was intoxicated. He claims he only sipped a small amount of alcohol while holding
24 the ubiquitous Solo cup throughout the duration of the party.
25 Evidence will show Plaintiff is a fitness influencer who publishes photos of his
26 near naked body on the world wide web. He was avidly discussing his body and
27 physique at the barbeque when attendees began to applaud him.
28 Plaintiff’s additional claims include retaliation. He testified that he
1
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMA CONSULTING & MANAGEMENT, LLC’s
MOTION FOR SUMMARY JUDGMENT, ALTERNATIVELY SUMMARY ADJUDICATION
1 complained about harassment on December 2, 2021, and his termination was
2 retaliatory for that complaint.
3 DEMA owners will testify that Plaintiff was a favored employee quickly rising
4 the ranks to management. On February 14, 2022, he was the manager in charge of
5 the Windsor Holiday Inn which had been converted to a temporary homeless shelter.
6 On that day, a resident of the shelter threatened to kill Plaintiff because Plaintiff
7 had taken the resident’s dog two weeks prior. The resident claimed to have a gun.
8 The police were called and when they arrived, Plaintiff lied to the police about the
9 whereabouts of the dog. Ultimately, Plaintiff told police the dog was at his home.
10 Police told Plaintiff to return the dog. The following day, February 15, Plaintiff had
11 not done so. Police confronted Plaintiff again. This time, Plaintiff admitted to having
12 the dog. Police, again, ordered him to return the dog to the resident.
PERRY, JOHNSON, ANDERSON,
MILLER & MOSKOWITZ LLP
13 Windsor police explained to DEMA they felt Plaintiff was lying about
14 removing the dog until he was confronted. The theft of another’s dog is a crime in
15 California (Penal Code § 487(e)(f).) (See Request for Judicial Notice.) Providing false
16 statements to a police officer is also a crime (Vehicle Code § 31.) (See Request for
17 Judicial Notice.)
18 Because Plaintiff was the manager of the site and had stolen and lied, DEMA
19 had no choice but to separate him from employment on February 15, 2022.
20 II. STATEMENT OF UNDISPUTED MATERIAL FACTS
21 A. Background
22 Defendant DEMA is an organization which provides shelter, meals, medical
23 and other services to Sonoma County’s evacuee and homeless populations.
24 (Defendant’s Separate Statement of Undisputed Material Facts (“UMF”) 1.)
25 Plaintiff Wescott was hired by DEMA on March 10, 2021 as an at will part-
26 time Emergency Medical Technician. (UMF 2.)
27 On June 1, 2021, Wescott was promoted to Assistant Site Administrator, a
28 full time, salaried position. (UMF 3.) On August 4, 2021, Wescott was promoted to
2
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMA CONSULTING & MANAGEMENT, LLC’s
MOTION FOR SUMMARY JUDGMENT, ALTERNATIVELY SUMMARY ADJUDICATION
1 Site Administrator of the housing shelter at Windsor Holiday Inn. (UMF 4.) On
2 February 15, 2022, Wescott was terminated for theft and insubordination. (UMF 5.)
3 B. Alleged Harassment
4 On August 12, 2021, the owners of DEMA, Michelle Patino and Mica
5 Pangborn hosted a barbecue (“BBQ”) at their home. (UMF 6.) The BBQ was to thank
6 DEMA colleagues who helped Patino through recovery from a recent severe accident.
7 (UMF 7.) Guests of the BBQ knew it was a social nonwork-related event. (UMF 8.)
8 Guest and DEMA Program Director Helena Ghosheh (“Ghosheh”) made and served
9 peach margaritas. (UMF 9.) Ghosheh served Plaintiff several margaritas. (UMF 10.)
10 Plaintiff asked Ghosheh to add more tequila to his margarita. (UMF 11.) Plaintiff
11 testified he only tasted an ounce of margarita. (UMF 12.)
12 Plaintiff and his friend and supervisor Branden Bowman danced at the BBQ.
PERRY, JOHNSON, ANDERSON,
MILLER & MOSKOWITZ LLP
13 (UMF 13.) While dancing, Plaintiff bent over in front of Ghosheh rubbing his
14 buttocks on her front side. (UMF 14.)
15 Plaintiff lifted his shirt and revealed his bare abdomen at the BBQ. (UMF 15.)
16 Plaintiff then completely removed his shirt from his body. (UMF 16.) With his shirt
17 off, Plaintiff posed for pictures with guests of the party. (UMF 17.) The hosts and
18 guests witnessed Plaintiff enjoying himself at the BBQ and did not perceive Wescott
19 to be uncomfortable. (UMF 18.)
20 Ghosheh considered Plaintiff under the influence of alcohol at the BBQ as his
21 demeanor was unusually candid and she had personally served him several
22 margaritas. (UMF 19.) At the BBQ, Wescott told Ghosheh intimate details of his
23 personal life; including struggles he was having with his girlfriend. (UMF 20.)
24 DEMA received no complaints from Wescott or any other guest of the BBQ that they
25 were harassed or felt uncomfortable. (UMF 21.)
26 Wescott and Bowman are fitness enthusiasts who operate a website known
27 as Discipline Over Comfort. (UMF 22.) Wescott regularly publishes photos of himself
28 on social media in seminude poses. (UMF 23.)
3
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMA CONSULTING & MANAGEMENT, LLC’s
MOTION FOR SUMMARY JUDGMENT, ALTERNATIVELY SUMMARY ADJUDICATION
1 On Saturday, November 20, 2021, Wescott sent an unsolicited picture to
2 Ghosheh of himself posing at his gym in
3 gym shorts, flexing his leg muscles. (UMF
4 24.) The text thread reads as follows:
5 Ghosheh: Hi Kyle, sorry to bother you.
6 What’s Jack’s last name?
7 Ghosheh: NM! Sorry! Got it.”
8 Wescott: I did send it in an email, I hope
9 you have a great weekend.
10 Ghosheh: You as well!!
11 Wescott: [See inset photo.]
12 Wescott: Starting great, Doing work lol.
PERRY, JOHNSON, ANDERSON,
MILLER & MOSKOWITZ LLP
13 (Id.)
14 On November 26, 2021, Ghosheh was promoted to HR Director. (UMF 25.) On
15 December 2, 2021, a DEMA leadership meeting was held in which Plaintiff,
16 Ghosheh, and Patino attended, among others. (UMF 26.) Ghosheh made statements
17 which Plaintiff perceived to be attacking. (UMF 27.) Plaintiff made a statement in
18 response that Ghosheh should “be less friendly.” (UMF 28.) Corinne Thompson
19 created an Incident Report regarding the meeting which states Wescott was
20 referring to the company BBQ where he removed his “shirt and began taking
21 photos.” (UMF 29.) The Incident Report also states Wescott said Ghosheh was giving
22 him too much attention at the BBQ (Id.)
23 DEMA owner Patino heard this discussion. (UMF 30.) After the meeting,
24 Patino privately asked Plaintiff if there was an incident or other concerns regarding
25 Ghosheh’s behavior he wanted to officially report. (UMF 31.) Wescott told Patino it
26 was not an issue, and he did not feel any of Ghosheh’s behavior needed to be reported.
27 (UMF 32.) Patino felt comfortable with Wescott’s response as she trusted him. (UMF
28 33.) Patino informed Wescott that if he ever had something to report to immediately
4
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMA CONSULTING & MANAGEMENT, LLC’s
MOTION FOR SUMMARY JUDGMENT, ALTERNATIVELY SUMMARY ADJUDICATION
1 report it to her. (UMF 34.) He agreed. (UMF 35.) After December 2, 2021, Wescott
2 never again mentioned further concerns with Ghosheh during his term of
3 employment. (UMF 36.)
4 At no time between the August 2021 BBQ and his February 15, 2022
5 termination did Wescott ever report any concerns regarding Ghosheh or any other
6 concerns of harassment. (UMF 37.) On the contrary, Wescott reported to Patino and
7 Pangborn that he and Ghosheh had a great relationship, and he appreciated her
8 assistance. (UMF 38.) Wescott often praised Ghosheh to DEMA owners. (UMF 39.)
9 At deposition, Wescott testified that Ghosheh, Patino and Pangborn never
10 sent him any flirtatious or sexually harassing texts, emails or Webex messages.
11 (UMF 40.)
12 At deposition, Wescott claimed five general incidents of harassment: (1)
PERRY, JOHNSON, ANDERSON,
MILLER & MOSKOWITZ LLP
13 Receiving texts after work hours, all nonsexual in nature; (2) Being coerced to
14 remove his shirt at the August 12, 2021 BBQ; (3) Receiving a comment by Mica
15 Pangborn regarding how close she perceived his friendship with Branden Bowman
16 was and suggesting they come out as gay; (4) Allegedly receiving a comment by
17 Helena Ghosheh: "Ahh, God, if you were single, ahh, what I would do." Ghosheh
18 denies making this statement; and (5) Allegedly receiving a comment from Michele
19 Patino on December 2, 2021, that if she was a single straight woman that he would
20 have a problem. (UMF 41.) Ms. Patino vehemently denies ever making a comment
21 of this sort to Plaintiff. (UMF 42.)
22 C. Theft, Insubordination and Termination
23 On February 14, 2022, Wescott communicated to his supervisor Blair Kane
24 that two weeks prior, a resident of the Windsor site brought a puppy to the site and
25 that Wescott then took the puppy from the resident and took it to his personal
26 residence. (UMF 43.) Per company policy, site residents are forbidden to have pets
27 that are not service-related. (UMF. 44) Wescott told Kane he still had the resident’s
28 puppy, and the resident was angry and threatened to kill him. (UMF 45.) This was
5
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMA CONSULTING & MANAGEMENT, LLC’s
MOTION FOR SUMMARY JUDGMENT, ALTERNATIVELY SUMMARY ADJUDICATION
1 the first time Wescott reported the incident to DEMA management. (UMF 46.) Site
2 Administrators are required to report all incidents to DEMA management. (UMF
3 47.) Wescott violated company policy by not reporting the puppy was brought to the
4 site, that he took the puppy from a resident and that he took the puppy home. (UMF
5 48.)
6 The same day, on February 14, 2022, Kane called DEMA owner Mica
7 Pangborn and informed her of the incident. (UMF 49.) Per Pangborn’s orders, Kane
8 told Wescott to return the dog to the resident and evict the resident from the site.
9 (UMF 50.) Wescott replied with “Copy.” (Id.) Approximately two hours later, Wescott
10 told Kane that he had returned the dog back to the resident and the resident was
11 removed from the site. (UMF 51.) Wescott did NOT return the dog on February 14,
12 2022. (UMF 52.)
PERRY, JOHNSON, ANDERSON,
MILLER & MOSKOWITZ LLP
13 Also on February 14, 2022, Wescott contacted the Windsor Police to report
14 the resident’s threats. (UMF 53.) Officer Gregory Clegg came to the Windsor site and
15 spoke with Wescott. (UMF 54.) Clegg viewed the dispute as a civil situation. (UMF
16 55.) Clegg agreed to be with Plaintiff as he evicted the resident. (UMF 56.) Wescott
Preview
1 Scott A. Lewis, Bar No. 149094 Regan V. Masi, Bar No. 339485 2 PERRY, JOHNSON, ANDERSON, 3 MILLER & MOSKOWITZ, LLP 438 1st Street, 4th Floor 4 Santa Rosa, California 95401 Telephone: (707) 525-8800 5 Facsimile: (707) 545-8242 6 Email: lewis@perrylaw.net masi@perrylaw.net 7 Attorneys for Defendant 8 DEMA CONSULTING & 9 MANAGEMENT, LLC. 10 11 SUPERIOR COURT OF THE STATE OF CALIFORNIA 12 COUNTY OF SONOMA PERRY, JOHNSON, ANDERSON, MILLER & MOSKOWITZ LLP 13 KYLE WESCOTT, an individual, Case No. SCV-272279 14 15 Plaintiff, MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF 16 v. DEMA CONSULTING & MANAGEMENT, LLC’s MOTION 17 DEMA CONSULTING & FOR SUMMARY JUDGMENT, 18 MANAGEMENT, LLC, a California ALTERNATIVELY SUMMARY limited liability company; and DOES ADJUDICATION 19 1-99, inclusive, Date: 20 Defendants. Time: 21 Dept.: 17 22 Complaint filed: December 12, 2022 Trial date: August 30, 2024 23 / 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMA CONSULTING & MANAGEMENT, LLC’s MOTION FOR SUMMARY JUDGMENT, ALTERNATIVELY SUMMARY ADJUDICATION 1 TABLE OF CONTENTS 2 3 I. INTRODUCTION .................................................................................................... 1 4 II. STATEMENT OF UNDISPUTED MATERIAL FACTS ............................... 2 5 A. Background......................................................................................................... 2 6 B. Alleged Harassment ......................................................................................... 3 7 C. Theft, Insubordination and Termination ................................................... 5 8 D. DEMA’s Prevention of Workplace Harassment ......................................... 7 9 E. Alleged Failure to Reimburse for Work-Related Expenses ..................... 8 10 III.STANDARDS OF SUMMARY JUDGMENT................................................... 8 11 IV. LEGAL ARGUMENT ........................................................................................... 8 12 1. Plaintiff Cannot Establish His First Cause of Action for Unlawful PERRY, JOHNSON, ANDERSON, MILLER & MOSKOWITZ LLP 13 Retaliation Because He Never Engaged in Protected Activity and His Termination for Theft Was Legitimate. (Labor Code § 1102.5) ............... 9 14 A. Plaintiff Cannot Establish That He Engaged in a Protected 15 Activity...................................................................................................... 10 16 B. There Is No Causal Relationship Between Plaintiff’s Theft and His Alleged Complaint. ......................................................................... 11 17 2. Plaintiff Cannot Maintain His Second Cause of Action For Labor Code 18 § 6310 Retaliation For The Same Reasons. Cause One Failed. There Is No Retaliation.................................................................................................... 13 19 3. Defendant is Entitled to Summary Judgment or in the alternative, 20 Summary Adjudication Because Plaintiff Cannot Establish His Third Cause of Action for FEHA Harassment: Work Environment 21 Harassment. (Gov. Code§§ 12923 & 12940(j).)........................................... 14 22 4. Defendant is Entitled to Summary Judgment or in the alternative, Summary Adjudication because Plaintiff Cannot Establish His Fourth 23 Cause of Action for FEHA Retaliation. (Gov. Code § 12940(h).) ............ 20 24 5. Defendant is Entitled to Summary Judgment or in the alternative, Summary Adjudication because Plaintiff Cannot Establish His Fifth 25 Cause of Action for FEHA Failure to Prevent Harassment or Retaliation. (Gov Code §12940(k).) ............................................................... 21 26 6. Defendant is Entitled to Summary Judgment or in the alternative, 27 Summary Adjudication because Plaintiff Cannot Establish His Sixth Cause of Action for Wrongful Discharge in Violation of Public Policy. 22 28 i MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMA CONSULTING & MANAGEMENT, LLC’s MOTION FOR SUMMARY JUDGMENT, ALTERNATIVELY SUMMARY ADJUDICATION 1 7. Defendant is Entitled to Summary Judgment or in the alternative, Summary Adjudication because Plaintiff Cannot Establish His 2 Seventh Cause of Action for Failure to Provide Accurate Wage Statements. (Labor Code § 226.) ................................................................... 23 3 8. Defendant is Entitled to Summary Judgment or in the alternative, 4 Summary Adjudication because Plaintiff Cannot Establish His Eighth Cause of Action for Waiting Time Penalty. (Labor Code § 203.)............ 23 5 9. Defendant is Entitled to Summary Judgment or in the alternative, 6 Summary Adjudication because Plaintiff Cannot Establish His Ninth Cause of Action for Failure to Indemnify Employee. (Labor Code § 7 2802.) ................................................................................................................... 24 8 V. CONCLUSION ...................................................................................................... 24 9 10 11 12 PERRY, JOHNSON, ANDERSON, MILLER & MOSKOWITZ LLP 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ii MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMA CONSULTING & MANAGEMENT, LLC’s MOTION FOR SUMMARY JUDGMENT, ALTERNATIVELY SUMMARY ADJUDICATION 1 TABLE OF AUTHORITIES 2 Cases 3 Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, at 849, 864-865 ...............8, 9 4 Aguilar v. Avis Rent a Car System, Inc., (1999) 21 Cal.4th 121, 130, 131 ..........15, 16 5 Alamo v. Practice Management Information Corp. (2013) 219 Cal.App.4th 6 466, 479 ..............................................................................................................................22 7 Arteaga v. Brink’s, Inc. (2008) 163 Cal.App.4th 327, 342, 344, 352 .....................11, 12 8 Caldera v. Dept. of Corrections and Rehabilitation, (2018) 25 Cal. App. 5th 31, 38...................................................................................................................................15 9 Colmenares v. Braemar Country Club, Inc. (2003) 29 Cal.4th 1019, 1031, fn. 10 6 ...........................................................................................................................................14 11 Faragher v. City of Boca Raton (1998) 524 U.S. 775, 788 ............................................16 12 Fisher v. San Pedro Peninsula Hospital, (1989) 214 Cal.App.3d 590, 608 ...............16 PERRY, JOHNSON, ANDERSON, MILLER & MOSKOWITZ LLP 13 Fuentes v. Autozone, Inc. (2011) 200 Cal. App. 4th 1221 ........................................19, 20 14 Guz v. Bechtel (2000) 24 Cal. 4th 317, 354.......................................................................13 15 16 Haberman v. Cengage Learning, Inc. (2009) 180 Cal.App.4th 365, 371, 373, 382 .................................................................................................................................19, 20 17 Harris v. City of Santa Monica (2013) 56 Cal.4th 18 203, 232; CACI No. 2507 ..........................................................................................21, 22 19 Harris v. Forklift Systems, Inc., (1993) 510 U.S. 17, 21, 23 .........................................16 20 Hughes v. Pair, (2009) 46 Cal.4th 1035, 1042-1043 .......................................................14 21 Lawson v. PPG Architectural Finishes, Inc. (2022) 12 Cal.5th 703, 713-714...........11 22 Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 283 ...........15 23 Mamou v. Trendwest Resorts, Inc. (2008) 165 Cal.App.4th 686, 713 .........................21 24 25 Manavian v. Department of Justice (2018) 28 Cal.App.5th 1127, 1141 ......................9 26 Markel American Ins. Co. v. G.L. Anderson Ins. Services, Inc. (E.D. Cal. 2010) 715 F.Supp.2d 1068, 1077 ..................................................................................21 27 McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 ...............................................13 28 iii MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMA CONSULTING & MANAGEMENT, LLC’s MOTION FOR SUMMARY JUDGMENT, ALTERNATIVELY SUMMARY ADJUDICATION 1 Muller v. Auto. Club of So. Cal. (1998) 61 Cal.App.4th 431, 452 ................................14 2 Oncale v. Sundowner Offshore Services, Inc. (1998) 523 U.S. 75, 81 .........................15 3 Oyarzo v. Tuolumne Fire Dist. (2013) 955 F.Supp.1038, 1097-1098 ..........................14 4 Perry v. Bakewell Hawthorne, LLC (2017) 2 Cal.5th 536, 542 ......................................8 5 Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 769 .......................................19 6 Sheffield v. LA Cnty. Dep't of Soc. Servs., (2003) 109 Cal. App.4th 134, 149- 7 150, 153, 162 ...............................................................................................................16, 17 8 Soto v. Motel 6 Operating, L.P., (2016) 4 Cal. App.5th 385, 391 ..................................23 9 Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal. 4th 1028, 1047 ................................10, 14 10 Other Authorities 11 CACI 2430 ...............................................................................................................................22 12 CACI 2527 ...............................................................................................................................21 PERRY, JOHNSON, ANDERSON, MILLER & MOSKOWITZ LLP 13 CACI 2705 ...............................................................................................................................24 14 15 CACI 4605 ...............................................................................................................................13 16 Fair Employment and Housing Act (FEHA) .................................................. 7, 14, 20, 21 17 Government Code §12923 .................................................................................................. 14 18 Government Code §§ 12940(h),12940(j), 12940(k) ............................................ 14, 20, 21 19 Labor Code §§ 201, 201.3, 201.5, 201.6, 201.8, 201.9 ................................................... 24 20 Labor Code § 202................................................................................................................... 24 21 Labor Code §§ 203, 203(a) ............................................................................................. 23, 24 22 Labor Code § 205.5 ............................................................................................................... 24 23 Labor Code § 226....................................................................................................................23 24 Labor Code §§ 1102.5, 1102.6............................................................................. 9, 11, 13, 20 25 26 Labor Code §§ 2802, 2802(a) .................................................................................... 8, 23, 24 27 Labor Code §§ 6310, 6310(a)(1)...............................................................................13, 14, 20 28 Labor Code § 6402 ................................................................................................................ 14 iv MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMA CONSULTING & MANAGEMENT, LLC’s MOTION FOR SUMMARY JUDGMENT, ALTERNATIVELY SUMMARY ADJUDICATION 1 Penal Code § 147(e)(f) .........................................................................................................2, 7 2 Vehicle Code § 31 .................................................................................................................2, 7 3 Webster's Collegiate Dict. (11th ed. 2007 p. 1140, col. 2) .............................................15 4 5 6 7 8 9 10 11 12 PERRY, JOHNSON, ANDERSON, MILLER & MOSKOWITZ LLP 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 v MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMA CONSULTING & MANAGEMENT, LLC’s MOTION FOR SUMMARY JUDGMENT, ALTERNATIVELY SUMMARY ADJUDICATION 1 I. INTRODUCTION 2 This controversy involves a claim by Plaintiff Kyle Wescott against his 3 employer for sexual harassment. DEMA Consulting is an emergency facilities 4 manager that provides medical care and housing for the unsheltered population 5 pursuant to contracts with the County of Sonoma. Plaintiff worked for DEMA for 11 6 months, during which time he was rapidly promoted from EMT to Site Manager at 7 DEMA’s housing shelter located at the Windsor Holiday Inn. Plaintiff was very well 8 liked. Unfortunately, he was terminated February 15, 2022, following allegations 9 that he had stolen a puppy from a DEMA resident. During the termination 10 conference, Plaintiff angrily threatened to sue DEMA for sexual harassment. 11 True to that threat, Plaintiff filed the instant action on December 16, 2022 for 12 workplace harassment, retaliation, wrongful termination and reimbursement of PERRY, JOHNSON, ANDERSON, MILLER & MOSKOWITZ LLP 13 business expenses. 14 Plaintiff’s claims are frivolous. The central theme of his action involves the 15 allegation that he was shamed into removing his shirt during a barbecue hosted by 16 owners of DEMA. Evidence includes photos and videos depicting Plaintiff dancing, 17 smiling and posing shirtless with workmates. Yet, he contends he was lured to the 18 home of DEMA owners on the false pretense that he was going to a business meeting. 19 The “meeting”, he claims, turned into an alcohol fueled party where women chanted 20 “take off your shirt.” Plaintiff claims he, and friend Branden Bowman, felt compelled 21 to do so. Plaintiff explains the photos of him smiling and dancing were his attempt 22 to put the best face on an embarrassing event. Witnesses will testify that Plaintiff 23 was intoxicated. He claims he only sipped a small amount of alcohol while holding 24 the ubiquitous Solo cup throughout the duration of the party. 25 Evidence will show Plaintiff is a fitness influencer who publishes photos of his 26 near naked body on the world wide web. He was avidly discussing his body and 27 physique at the barbeque when attendees began to applaud him. 28 Plaintiff’s additional claims include retaliation. He testified that he 1 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMA CONSULTING & MANAGEMENT, LLC’s MOTION FOR SUMMARY JUDGMENT, ALTERNATIVELY SUMMARY ADJUDICATION 1 complained about harassment on December 2, 2021, and his termination was 2 retaliatory for that complaint. 3 DEMA owners will testify that Plaintiff was a favored employee quickly rising 4 the ranks to management. On February 14, 2022, he was the manager in charge of 5 the Windsor Holiday Inn which had been converted to a temporary homeless shelter. 6 On that day, a resident of the shelter threatened to kill Plaintiff because Plaintiff 7 had taken the resident’s dog two weeks prior. The resident claimed to have a gun. 8 The police were called and when they arrived, Plaintiff lied to the police about the 9 whereabouts of the dog. Ultimately, Plaintiff told police the dog was at his home. 10 Police told Plaintiff to return the dog. The following day, February 15, Plaintiff had 11 not done so. Police confronted Plaintiff again. This time, Plaintiff admitted to having 12 the dog. Police, again, ordered him to return the dog to the resident. PERRY, JOHNSON, ANDERSON, MILLER & MOSKOWITZ LLP 13 Windsor police explained to DEMA they felt Plaintiff was lying about 14 removing the dog until he was confronted. The theft of another’s dog is a crime in 15 California (Penal Code § 487(e)(f).) (See Request for Judicial Notice.) Providing false 16 statements to a police officer is also a crime (Vehicle Code § 31.) (See Request for 17 Judicial Notice.) 18 Because Plaintiff was the manager of the site and had stolen and lied, DEMA 19 had no choice but to separate him from employment on February 15, 2022. 20 II. STATEMENT OF UNDISPUTED MATERIAL FACTS 21 A. Background 22 Defendant DEMA is an organization which provides shelter, meals, medical 23 and other services to Sonoma County’s evacuee and homeless populations. 24 (Defendant’s Separate Statement of Undisputed Material Facts (“UMF”) 1.) 25 Plaintiff Wescott was hired by DEMA on March 10, 2021 as an at will part- 26 time Emergency Medical Technician. (UMF 2.) 27 On June 1, 2021, Wescott was promoted to Assistant Site Administrator, a 28 full time, salaried position. (UMF 3.) On August 4, 2021, Wescott was promoted to 2 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMA CONSULTING & MANAGEMENT, LLC’s MOTION FOR SUMMARY JUDGMENT, ALTERNATIVELY SUMMARY ADJUDICATION 1 Site Administrator of the housing shelter at Windsor Holiday Inn. (UMF 4.) On 2 February 15, 2022, Wescott was terminated for theft and insubordination. (UMF 5.) 3 B. Alleged Harassment 4 On August 12, 2021, the owners of DEMA, Michelle Patino and Mica 5 Pangborn hosted a barbecue (“BBQ”) at their home. (UMF 6.) The BBQ was to thank 6 DEMA colleagues who helped Patino through recovery from a recent severe accident. 7 (UMF 7.) Guests of the BBQ knew it was a social nonwork-related event. (UMF 8.) 8 Guest and DEMA Program Director Helena Ghosheh (“Ghosheh”) made and served 9 peach margaritas. (UMF 9.) Ghosheh served Plaintiff several margaritas. (UMF 10.) 10 Plaintiff asked Ghosheh to add more tequila to his margarita. (UMF 11.) Plaintiff 11 testified he only tasted an ounce of margarita. (UMF 12.) 12 Plaintiff and his friend and supervisor Branden Bowman danced at the BBQ. PERRY, JOHNSON, ANDERSON, MILLER & MOSKOWITZ LLP 13 (UMF 13.) While dancing, Plaintiff bent over in front of Ghosheh rubbing his 14 buttocks on her front side. (UMF 14.) 15 Plaintiff lifted his shirt and revealed his bare abdomen at the BBQ. (UMF 15.) 16 Plaintiff then completely removed his shirt from his body. (UMF 16.) With his shirt 17 off, Plaintiff posed for pictures with guests of the party. (UMF 17.) The hosts and 18 guests witnessed Plaintiff enjoying himself at the BBQ and did not perceive Wescott 19 to be uncomfortable. (UMF 18.) 20 Ghosheh considered Plaintiff under the influence of alcohol at the BBQ as his 21 demeanor was unusually candid and she had personally served him several 22 margaritas. (UMF 19.) At the BBQ, Wescott told Ghosheh intimate details of his 23 personal life; including struggles he was having with his girlfriend. (UMF 20.) 24 DEMA received no complaints from Wescott or any other guest of the BBQ that they 25 were harassed or felt uncomfortable. (UMF 21.) 26 Wescott and Bowman are fitness enthusiasts who operate a website known 27 as Discipline Over Comfort. (UMF 22.) Wescott regularly publishes photos of himself 28 on social media in seminude poses. (UMF 23.) 3 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMA CONSULTING & MANAGEMENT, LLC’s MOTION FOR SUMMARY JUDGMENT, ALTERNATIVELY SUMMARY ADJUDICATION 1 On Saturday, November 20, 2021, Wescott sent an unsolicited picture to 2 Ghosheh of himself posing at his gym in 3 gym shorts, flexing his leg muscles. (UMF 4 24.) The text thread reads as follows: 5 Ghosheh: Hi Kyle, sorry to bother you. 6 What’s Jack’s last name? 7 Ghosheh: NM! Sorry! Got it.” 8 Wescott: I did send it in an email, I hope 9 you have a great weekend. 10 Ghosheh: You as well!! 11 Wescott: [See inset photo.] 12 Wescott: Starting great, Doing work lol. PERRY, JOHNSON, ANDERSON, MILLER & MOSKOWITZ LLP 13 (Id.) 14 On November 26, 2021, Ghosheh was promoted to HR Director. (UMF 25.) On 15 December 2, 2021, a DEMA leadership meeting was held in which Plaintiff, 16 Ghosheh, and Patino attended, among others. (UMF 26.) Ghosheh made statements 17 which Plaintiff perceived to be attacking. (UMF 27.) Plaintiff made a statement in 18 response that Ghosheh should “be less friendly.” (UMF 28.) Corinne Thompson 19 created an Incident Report regarding the meeting which states Wescott was 20 referring to the company BBQ where he removed his “shirt and began taking 21 photos.” (UMF 29.) The Incident Report also states Wescott said Ghosheh was giving 22 him too much attention at the BBQ (Id.) 23 DEMA owner Patino heard this discussion. (UMF 30.) After the meeting, 24 Patino privately asked Plaintiff if there was an incident or other concerns regarding 25 Ghosheh’s behavior he wanted to officially report. (UMF 31.) Wescott told Patino it 26 was not an issue, and he did not feel any of Ghosheh’s behavior needed to be reported. 27 (UMF 32.) Patino felt comfortable with Wescott’s response as she trusted him. (UMF 28 33.) Patino informed Wescott that if he ever had something to report to immediately 4 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMA CONSULTING & MANAGEMENT, LLC’s MOTION FOR SUMMARY JUDGMENT, ALTERNATIVELY SUMMARY ADJUDICATION 1 report it to her. (UMF 34.) He agreed. (UMF 35.) After December 2, 2021, Wescott 2 never again mentioned further concerns with Ghosheh during his term of 3 employment. (UMF 36.) 4 At no time between the August 2021 BBQ and his February 15, 2022 5 termination did Wescott ever report any concerns regarding Ghosheh or any other 6 concerns of harassment. (UMF 37.) On the contrary, Wescott reported to Patino and 7 Pangborn that he and Ghosheh had a great relationship, and he appreciated her 8 assistance. (UMF 38.) Wescott often praised Ghosheh to DEMA owners. (UMF 39.) 9 At deposition, Wescott testified that Ghosheh, Patino and Pangborn never 10 sent him any flirtatious or sexually harassing texts, emails or Webex messages. 11 (UMF 40.) 12 At deposition, Wescott claimed five general incidents of harassment: (1) PERRY, JOHNSON, ANDERSON, MILLER & MOSKOWITZ LLP 13 Receiving texts after work hours, all nonsexual in nature; (2) Being coerced to 14 remove his shirt at the August 12, 2021 BBQ; (3) Receiving a comment by Mica 15 Pangborn regarding how close she perceived his friendship with Branden Bowman 16 was and suggesting they come out as gay; (4) Allegedly receiving a comment by 17 Helena Ghosheh: "Ahh, God, if you were single, ahh, what I would do." Ghosheh 18 denies making this statement; and (5) Allegedly receiving a comment from Michele 19 Patino on December 2, 2021, that if she was a single straight woman that he would 20 have a problem. (UMF 41.) Ms. Patino vehemently denies ever making a comment 21 of this sort to Plaintiff. (UMF 42.) 22 C. Theft, Insubordination and Termination 23 On February 14, 2022, Wescott communicated to his supervisor Blair Kane 24 that two weeks prior, a resident of the Windsor site brought a puppy to the site and 25 that Wescott then took the puppy from the resident and took it to his personal 26 residence. (UMF 43.) Per company policy, site residents are forbidden to have pets 27 that are not service-related. (UMF. 44) Wescott told Kane he still had the resident’s 28 puppy, and the resident was angry and threatened to kill him. (UMF 45.) This was 5 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMA CONSULTING & MANAGEMENT, LLC’s MOTION FOR SUMMARY JUDGMENT, ALTERNATIVELY SUMMARY ADJUDICATION 1 the first time Wescott reported the incident to DEMA management. (UMF 46.) Site 2 Administrators are required to report all incidents to DEMA management. (UMF 3 47.) Wescott violated company policy by not reporting the puppy was brought to the 4 site, that he took the puppy from a resident and that he took the puppy home. (UMF 5 48.) 6 The same day, on February 14, 2022, Kane called DEMA owner Mica 7 Pangborn and informed her of the incident. (UMF 49.) Per Pangborn’s orders, Kane 8 told Wescott to return the dog to the resident and evict the resident from the site. 9 (UMF 50.) Wescott replied with “Copy.” (Id.) Approximately two hours later, Wescott 10 told Kane that he had returned the dog back to the resident and the resident was 11 removed from the site. (UMF 51.) Wescott did NOT return the dog on February 14, 12 2022. (UMF 52.) PERRY, JOHNSON, ANDERSON, MILLER & MOSKOWITZ LLP 13 Also on February 14, 2022, Wescott contacted the Windsor Police to report 14 the resident’s threats. (UMF 53.) Officer Gregory Clegg came to the Windsor site and 15 spoke with Wescott. (UMF 54.) Clegg viewed the dispute as a civil situation. (UMF 16 55.) Clegg agreed to be with Plaintiff as he evicted the resident. (UMF 56.) Wescott