Fiol v. Doellstedt

• Decision Date: 19 November 1996
• Docket Number: No. B092939,B092939
• Citation: 58 Cal.Rptr.2d 308,50 Cal.App.4th 1318
• Parties: , 72 Fair Empl.Prac.Cas. (BNA) 703, 70 Empl. Prac. Dec. P 44,568, 96 Cal. Daily Op. Serv. 8393, 96 Daily Journal D.A.R. 13,897 Giovanni FIOL, Plaintiff and Appellant, v. Jon DOELLSTEDT, Defendant and Respondent.
• Court: California Court of Appeals

Page 308

58 Cal.Rptr.2d 308

50 Cal.App.4th 1318, 72 Fair Empl.Prac.Cas. (BNA) 703,

70 Empl. Prac. Dec. P 44,568,

96 Cal. Daily Op. Serv. 8393,

96 Daily Journal D.A.R. 13,897

Giovanni FIOL, Plaintiff and Appellant, v. Jon DOELLSTEDT, Defendant and Respondent.

No. B092939.

Court of Appeal, Second District, Division 5, California.

Nov. 19, 1996.

Certified for Partial Publication. ^*

Review Denied Feb. 19, 1997.

William C. Snyder, Santa Monica, for Plaintiff and Appellant.

Rosenfeld, Meyer & Susman, Michael A. Robbins and Lisa M. Jacobsen, Beverly Hills, for Defendant and Respondent.

GRIGNON, Associate Justice.

Plaintiff and appellant Giovanni Fiol appeals from a judgment of dismissal after defendant and respondent Jon Doellstedt's motion for judgment on the pleadings was granted without leave to amend in this sexual harassment action. In the published portion of this opinion we conclude a non-harassing supervisor, who fails to take action to prevent sexual harassment, is not personally liable for sexual harassment under the Fair Employment and Housing Act (FEHA), as either an aider and abettor of the harasser or the employer, or as an agent of the employer. In the unpublished portion of the opinion, we discuss the dismissal of Fiol's common law causes of action. We affirm.

FACTS AND PROCEDURAL BACKGROUND

Fiol began to work for Activision, Inc. on January 5, 1994. Fiol's immediate supervisor was Sean Silva, whose immediate supervisor was Doellstedt. Silva routinely engaged in sexual jokes and innuendoes at Fiol's expense. Silva grabbed Fiol's buttocks and crotch, rubbed his pelvic area against Fiol's back, kissed Fiol, forced Fiol's face into his crotch and demanded oral copulation. Silva told Fiol that in order to advance in Activision, Fiol would have to submit to his sexual advances.

In February 1994, Fiol complained to Doellstedt of Silva's sexual harassment. Fiol complained again to Doellstedt in May 1994 and on June 6, 1994. Nothing was done to investigate Fiol's sexual harassment complaints against Silva or control Silva's behavior. On June 6, 1994, Fiol was terminated by Activision.

Fiol filed sexual harassment charges with the Department of Fair Employment and Housing (DFEH) ¹ and obtained a right to sue letter. On December 2, 1994, Fiol filed a complaint against Silva, Doellstedt and Activision ² alleging ten causes of action: (1) unlawful sexual harassment under FEHA; (2) unlawful sex discrimination under FEHA; (3) wrongful termination under FEHA; (4) assault; (5) battery; (6) common law invasion of privacy; (7) invasion of privacy under the California Constitution; (8) defamation; (9) intentional infliction of emotional distress; and (10) negligent supervision. Fiol's action against Doellstedt was based solely on Doellstedt's failure to "investigate, control, monitor, discipline or restrain" Silva, even after the sexual harassment had been reported to him. The complaint also included standard agency, aiding and abetting and conspiracy allegations.

On February 15, 1995, Doellstedt moved for judgment on the pleadings. On March 8, 1995, the trial court granted the motion for judgment on the pleadings without leave to amend. A judgment of dismissal was entered. Fiol appealed.

DISCUSSION

I. Standard of Review

A motion for judgment on the pleadings may be made on the ground that the pleading at issue fails to state facts sufficient to constitute a legally cognizable claim or defense. (Colberg, Inc. v. California (1967) 67 Cal.2d 408, 411-412, 62 Cal.Rptr. 401, 432 P.2d 3; Sofias v. Bank of America (1985) 172 Cal.App.3d 583, 586, 218 Cal.Rptr. 388; Ion Equipment Corp. v. Nelson (1980) 110 Cal.App.3d 868, 877, 168 Cal.Rptr. 361; Code Civ. Proc., § 430.10, subd. (e).) Our review is guided by the same rules governing the review of the sustaining of a general demurrer. " 'We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed.' [Citation.] Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.] When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action. [Citation.] And when it is sustained without leave to amend, we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm. [Citations.] The burden of proving such reasonable possibility is squarely on the plaintiff." (Blank v. Kirwan (1985) 39 Cal.3d 311, 318, 216 Cal.Rptr. 718, 703 P.2d 58.)

II. FEHA

The Fair Employment Practice Act, former Labor Code section 1410 et seq., was enacted in 1959. (Stats.1959, ch. 121, § 1, p.1999 et seq.) It was recodified in 1980 as part of the FEHA. (Stats.1980, ch. 992, § 4, p. 3140 et seq.) The FEHA combined the now-repealed Fair Employment Practice Act and the now-repealed Rumford Fair Housing Act. (Health & Saf.Code, former § 35700 et seq.) Under the FEHA and its predecessor statutes, freedom from employment discrimination on the grounds of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, and sex is a civil right. (Gov.Code, § 12921.) ³ Discrimination on the specified grounds is against public policy (§ 12920) and an unlawful employment practice (§ 12940). The FEHA is to be liberally construed to effectuate its purposes. (§ 12993, subd. (a).)

"The public policy underlying the FEHA is 'to prohibit harassment and discrimination in employment on the basis of any protected classification. Such conduct whether intentional or unintentional is a violation of the civil rights of California citizenry and has been shown to decrease productivity in the workforce....' [Citation.]" (Matthews v. Superior Court (1995) 34 Cal.App.4th 598, 602, 40 Cal.Rptr.2d 350.) " '[T]he practice of denying employment opportunity and discriminating in the terms of employment for such reasons foments domestic strife and unrest, deprives the state of the fullest utilization of its capacities for development and advance [sic ], and substantially and adversely affects the interest of employees, employers, and the public in general.... [p] ... [p] It is the purpose of [the FEHA] to provide effective remedies which will eliminate such discriminatory practices.' [Citation.]" (Ibid.)

In addition to discrimination, the FEHA prohibits harassment on the basis of sex and other protected classifications. "It shall be an unlawful employment practice ... [f]or an employer ... or any other person, because of ... sex, ... to harass an employee.... Harassment of an employee ... by an employee other than an agent or supervisor shall be unlawful if the entity, or its agents or supervisors, knows or should have known of this conduct and fails to take immediate and appropriate corrective action. An entity shall take all reasonable steps to prevent harassment from occurring." (§ 12940, subd. (h)(1).) "For purposes of this subdivision only, 'employer' means any person regularly employing one or more persons, or any person acting as an agent of an employer directly or indirectly...." (Id., subd. (h)(3)(A).) ⁴ "It shall be an unlawful employment practice ... [f]or an employer ... to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring." (Id., subd. (i).) "It shall be an unlawful employment practice ... [f]or 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." (Id., subd. (g).) Sexual harassment includes gender harassment. (Id., subd. (h)(3)(C).) Gender harassment includes sexual harassment by a member of the same sex. (Mogilefsky v. Superior Court (1993) 20 Cal.App.4th 1409, 1416-1418, 26 Cal.Rptr.2d 116.)

Prior to 1977, no express statutory language allowed an aggrieved employee to recover monetary damages in court for discrimination or harassment. In 1977, the Legislature enacted Labor Code section 1422.2 (Stats.1977, ch. 1188, § 34, p. 3911), now section 12965, subdivision (b), expanding the scope of remedies expressly available to a person subject to unlawful discrimination or harassment by permitting a court action for the recovery of monetary damages. Section 12965, subdivision (b) requires the DFEH to issue a "right-to-sue" letter if it issues no accusation within 150 days after the filing of a complaint. The section authorizes the complainant to bring a civil action under the FEHA "against the person [or] employer ... named in the verified complaint [previously filed with the DFEH]." (§ 12965, subd. (b).)

III. Aiding and Abetting

The FEHA does not provide a definition of "aiding and abetting." ⁵ It is appropriate, therefore, to consider the common law definition of aiding and abetting. "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 gives 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." (Saunders v. Superior Court (1994) 27 Cal.App.4th 832, 846, 33 Cal.Rptr.2d 438; Rest.2d Torts, § 876.) Mere knowledge that a tort is being committed and the failure to prevent it does not constitute aiding and abetting. (Cf. CALJIC No. 3.01.) "As a general rule, one owes no duty to control the conduct of another...." (Davidson v. City of Westminster (1982) 32 Cal.3d 197, 203, 185 Cal.Rptr. 252, 649 P.2d 894; Michael R. v. Jeffrey B. (1984) 158 Cal.App.3d 1059, 1068, 205 Cal.Rptr. 312; Baldwin v....