Filed 11/30/20 Zagorovskaya v. B & V Enterprises CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
TATIANA ZAGOROVSKAYA, B294269
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. LC104715)
v.
B & V ENTERPRISES, INC., et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Virginia C. Keeny, Judge. Affirmed.
____________________________
Tatiana Zagorovskaya, in pro. per., for Plaintiff and
Appellant.
Fisher & Phillips, Todd B. Scherwin and Sarina Saluja for
Defendants and Respondents.
____________________________
Plaintiff and appellant Tatiana Zagorovskaya challenges
the trial court’s grant of summary judgment in favor of
defendants and respondents B & V Enterprises, Inc. (dba
Super King Market) (B & V), Vartan Gulasarian, and Meldis
Shaverdian (collectively, defendants). Zagorovskaya, who worked
at a Super King Market (Super King) owned by B & V, claimed
that Shaverdian sexually harassed, assaulted, and battered her
at work. She also claims that B & V violated the California
Occupational Safety and Health Act (Lab. Code, § 6300 et seq.)
(OSHA) by requiring her to do her job without proper safety
equipment, leading her to injure her hand while cutting salami
at a meat-slicing machine. We affirm.
FACTS AND PROCEEDINGS BELOW
Because this is an appeal of a grant of summary judgment
in favor of defendants, we describe the evidence “in the light
most favorable to the opposing party,” Zagorovskaya. (Aguilar v.
Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar).)
Zagorovskaya began working as a deli clerk at Super King
in November 2015. Shaverdian worked at the deli counter as
well and showed Zagorovskaya how to use the deli equipment;
Zagorovskaya viewed Shaverdian as a supervisor. Beginning in
late January 2016, Zagorovskaya had a number of encounters
with Shaverdian that made her feel uncomfortable. On two
occasions, Shaverdian touched Zagorovskaya on the backside.
On a third occasion, Shaverdian grabbed Zagorovskaya’s face
“in a fit of passion,” in a way Zagorovskaya perceived as sexual.
Zagorovskaya believed Shaverdian wanted to have a closer
relationship with her, but Zagorovskaya kept her distance. On
a fourth occasion, on February 19, 2016, Shaverdian sprayed
cleaning solution directly at Zagorovskaya’s face. After a while,
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Shaverdian began walking away and told Zagorovskaya, “Leave.”
On February 21, Shaverdian assigned Zagorovskaya excessive
cleaning duties to perform that she did not normally have to do.
The next day, February 22, 2016, Zagorovskaya injured
her fingers while cutting salami on a meat-slicing machine.
She was not using a hand guard or wearing protective gloves at
the time of the injury because Super King required employees
to cut meats at an angle, which precluded using a hand guard.
As a result of the injury and Shaverdian’s conduct, Zagorovskaya
suffered emotional distress and was unable to continue working.
Gulasarian is the store manager of Super King, to whom
Zagorovskaya reported her injury. Gulasarian refused to call
911 for approximately 40 minutes after the injury, then asked
another employee to drive Zagorovskaya to the hospital.
Zagorovskaya did not report Shaverdian’s conduct to
management at Super King. Nor did she complain about
any OSHA violations regarding the meat-slicing equipment.
Following her injury, Zagorovskaya filed a workers’ compensation
claim and took a workers’ compensation related leave of absence.
On October 5, 2016, Zagorovskaya filed suit against
B & V, Shaverdian, and Gulasarian. She alleged causes of action
for sex and gender based harassment under the California Fair
Employment and Housing Act (FEHA) (Gov. Code, § 12900
et seq.), assault, battery, failure to provide safe working
conditions pursuant to OSHA, and intentional infliction of
emotional distress. Defendants filed motions for summary
judgment or summary adjudication.1 The trial court granted
1 Unlike the other two defendants, who filed motions
for summary judgment, Shaverdian moved for summary
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the motions, finding that Zagorovskaya failed to demonstrate a
triable issue of material fact as to any of the causes of action in
question.
DISCUSSION
Zagorovskaya contends that the trial court abused its
discretion by rejecting certain evidence she offered. She also
contends that the trial court erred on the merits by granting
summary judgment in favor of defendants. We disagree and
affirm.
A. Evidentiary Objections
Zagorovskaya contends that the trial court erred by
refusing to consider evidence relevant to the summary judgment
motion. We review the trial court’s evidentiary rulings for abuse
of discretion. (Carnes v. Superior Court (2005) 126 Cal.App.4th
688, 694.) We consider each of these evidentiary questions in
turn.
1. Declaration of Meri Aroutioinuan
Zagorovskaya contends that the trial court erred by
refusing to consider a declaration of Zagorovskaya’s coworker
Meri Aroutioinuan. In the declaration, Aroutioinuan
corroborated Zagorovskaya’s allegations that employees at
Super King were required to cut deli meats at an angle, and
that this precluded the use of a safeguard. She also stated
that the deli-counter employees wore thin, nonprotective gloves
while cutting meat. In addition, she stated that Shaverdian was
adjudication on two of the four causes of action alleged against
her, but not for the claims of assault and battery.
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an assistant manager at the deli department and delegated
duties to employees. This contradicted a declaration by a
representative of B & V that Shaverdian was merely a coworker.
The trial court rejected the declaration because it was not
made under penalty of perjury. In any declaration submitted
in court, the declarant must state that the declaration “is
certified or declared by him or her to be true under penalty of
perjury.” (Code Civ. Proc., § 2015.5.) The trial court excluded
Aroutioinuan’s declaration on the ground that it did not comply
with this requirement. Instead, Aroutioinuan stated, “I declare
under the laws of the State of California that the foregoing is true
and correct.” (Italics added.)
We need not decide whether the court erred by refusing to
consider the declaration because any error would be harmless.
The question of whether Shaverdian was Zagorovskaya’s
supervisor was relevant to Zagorovskaya’s sex and gender
harassment claim, but its resolution would not have affected
the decision on summary judgment. In claims under FEHA, an
employer is strictly liable for sexual harassment by a supervisor.
(State Dept. of Health Services v. Superior Court (2003) 31
Cal.4th 1026, 1040–1041.) When the misconduct is committed
by coworkers or others, by contrast, the plaintiff must show
that management knew or should have known of the harassment.
(Ibid.) But in this case, the trial court correctly determined
as a matter of law that Shaverdian’s alleged actions were
insufficiently severe or continuous to create a hostile work
environment. We explain this issue in more detail in the
Discussion part B.2, post.
Zagorovskaya claims that Shaverdian’s status as her
supervisor was also relevant to B & V’s liability for assault
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and battery under a doctrine of respondeat superior, but
this is incorrect. The doctrine of respondeat superior makes
an employer “vicariously liable for the torts of its employees
committed within the scope of the employment.” (Lisa M. v.
Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th
291, 296.) In this case, the assault and battery Zagorovskaya
alleges that Shaverdian committed against her were personal
in nature and had nothing to do with Shaverdian’s duties on
the job. “[W]here the undisputed facts would not support an
inference that the employee was acting within the scope of his
employment,” the court may find the doctrine inapplicable as a
matter of law. (John R. v. Oakland Unified School Dist. (1989)
48 Cal.3d 438, 447.) The trial court did not err by making such
a determination in this case.
Zagorovskaya cites Meyer v. Graphic Arts International
Union (1979) 88 Cal.App.3d 176 for the proposition that
an employer may be vicariously liable for intentional torts
committed by an employee, but in that case, the plaintiff alleged
that the employees who attacked her were acting within the
scope of their employment. (Id. at p. 178.) Zagorovskaya has
produced no such evidence in this case.
2. Video Evidence
Zagorovskaya contends that the trial court erred by stating
that Zagorovskaya “was told there were video cameras recording
the incidents but she is unable to provide any such evidence.”
Zagorovskaya notes that she provided a video showing that there
are video cameras installed at the deli department of Super King.
That may be so, but Zagorovskaya has failed to produce any
relevant recordings from the video cameras, and she has failed to
show that B & V obstructed her from obtaining the recordings.
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B. Summary Judgment
Zagorovskaya raises a number of other challenges to the
trial court’s grant of summary judgment. We first describe the
law applicable to summary judgment in general, then address
each of Zagorovskaya’s claims individually.
1. Basic Principles of Law
Summary judgment is proper when there are no triable
issues of material fact and the moving party is entitled to
judgment as a matter of law. (Nealy v. City of Santa Monica
(2015) 234 Cal.App.4th 359, 370; Aguilar, supra, 25 Cal.4th at
p. 843; Code Civ. Proc., § 437c, subd. (c).) A defendant moving
for summary judgment bears an initial burden of showing that
one or more elements of the plaintiff ’s cause of action cannot be
established or that there is a complete defense to that cause of
action. (Nealy v. City of Santa Monica, supra, 234 Cal.App.4th
at p. 370; Aguilar, supra, 25 Cal.4th at p. 849.) If the defendant
meets this burden, the plaintiff has the burden to demonstrate
one or more triable issues of material fact as to the cause of
action or defense. (Aguilar, supra, at p. 849.) A triable issue
of material fact exists “if, and only if, the evidence would allow
a reasonable trier of fact to find the underlying fact in favor of
the party opposing the motion in accordance with the applicable
standard of proof.” (Id. at p. 850.)
In reviewing summary judgment, “[w]e review the trial
court’s decision de novo, liberally construing the evidence in
support of the party opposing summary judgment and resolving
doubts concerning the evidence in favor of that party.” (State of
California v. Allstate Ins. Co. (2009) 45 Cal.4th 1008, 1017–1018.)
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2. Sexual Harassment Claim
We agree with the trial court that Shaverdian’s conduct
as Zagorovskaya describes it was “not sufficiently severe or
pervasive to constitute a hostile work environment under the
FEHA.” In her deposition, Zagorovskaya alleged that Shaverdian
touched her bottom on two occasions, and that on a third
occasion, she grabbed Zagorovskaya’s face in a fit of passion.
When Zagorovskaya kept her distance, Shaverdian retaliated by
spraying her in the face with cleaning fluid and by assigning her
extra cleaning tasks.
As the trial court noted, the facts in this case are similar
to two others in which courts found that harassment allegations
were insufficient as a matter of law. In Mokler v. County of
Orange (2007) 157 Cal.App.4th 121, a supervisor made two
sexual comments to the plaintiff, and on a third occasion, he
put his arm around her and rubbed against her breast. (Id.
at p. 144.) The court reasoned that the supervisor’s actions
“demonstrate[d] rude, inappropriate, and offensive behavior.
To be actionable, however, a workplace must be ‘ “permeated
with ‘discriminatory intimidation, ridicule and insult,’ [citation]
that is ‘sufficiently severe or pervasive to alter the conditions
of the victim’s employment and create an abusive working
environment.’ ” ’ ” (Id. at p. 145.) The supervisor’s actions simply
did not meet that threshold. (Ibid.) Similarly, in Haberman v.
Cengage Learning, Inc. (2009) 180 Cal.App.4th 365, the court
affirmed a grant of summary judgment in favor of a defendant
on a sexual harassment claim. One of the defendants made
a number of sexual comments to the victim over a period of
months, but the court held that these were too isolated, sporadic,
and trivial to make for a hostile workplace. (Id. at p. 385.) In
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this case, Zagorovskaya testified that “it wasn’t clear to”
her at first what Shaverdian meant by touching her bottom.
Furthermore, Zagorovskaya acknowledged that Shaverdian
never made any comments to her about her gender. These
actions are not sufficiently severe to make for a hostile
workplace.
Zagorovskaya contends that the trial court erred
by concluding that there were discrepancies regarding
Zagorovskaya’s allegations of Shaverdian’s conduct between
the testimony in her deposition and in a declaration she
later filed. We disagree. We have reviewed the trial court’s
opinion, as well as Zagorovskaya’s deposition testimony and
declaration, and we do not find that the trial court materially
misrepresented Zagorovskaya’s statements.
3. Workers’ Compensation Exclusivity
The trial court denied Zagorovskaya’s causes of action
for failure to provide safe working conditions (see Lab. Code,
§§ 6401, 6403) and for intentional infliction of emotional distress
on the ground that workers’ compensation provides “the sole
and exclusive remedy of the employee or his or her dependents
against the employer” for injuries suffered on the job. (Lab. Code,
§ 3602, subd. (a).)
Zagorovskaya contends that this was error on the ground
that claims of intentional misconduct are not subject to the
workers’ compensation exclusivity doctrine. We disagree.
Our Supreme Court has established “a tripartite system for
classifying injuries arising in the course of employment. First,
there are injuries caused by employer negligence or without
employer fault that are compensated at the normal rate under
the workers' compensation system. Second, there are injuries
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caused by ordinary employer conduct that intentionally,
knowingly or recklessly harms an employee, for which
the employee may be entitled to extra compensation under
[Labor Code] section 4553. Third, there are certain types of
intentional employer conduct which bring the employer beyond
the boundaries of the compensation bargain, for which a
civil action may be brought.” (Fermino v. Fedco, Inc. (1994)
7 Cal.4th 701, 713–714.) The injury Zagorovskaya suffered at
the meat-slicing machine was at most in the second category.
Even if B & V intentionally exposed her to dangerous working
conditions by requiring her to work without necessary safety
equipment, the conduct was within the boundaries of the
compensation bargain, and Zagorovskaya’s sole remedy was
workers’ compensation. (See Cole v. Fair Oaks Fire Protection
Dist. (1987) 43 Cal.3d 148, 160.) The situations in which a civil
action may be brought for injuries suffered on the job are not at
all like those Zagorovskaya alleges she experienced. (See Miklosy
v. Regents of University of California (2008) 44 Cal.4th 876, 902.)
Zagorovskaya also argues that B & V may be liable for civil
damages for her injury at the meat slicer under two sections of
the Labor Code. Section 4553 provides for increased damages
“where the employee is injured by reason of the serious and
willful misconduct” of the employer. (Lab. Code, § 4553.) But
that statute applies exclusively to workers’ compensation claims.
(Arendell v. Auto Parts Club, Inc. (1994) 29 Cal.App.4th 1261,
1264.) Similarly, Labor Code section 4558 allows employees to
file suit against employers who cause injury or death by removing
or failing to install safety guards on power presses. But the
statute defines power press as “any material-forming machine
that utilizes a die which is designed for use in the manufacture
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of other products.” (Lab. Code, § 4558, subd. (a)(4).) The
meat-slicing machine Zagorovskaya operated does not fit this
definition.
Nor does Solus Industrial Innovations, LLC v. Superior
Court (2018) 4 Cal.5th 316 (Solus) provide Zagorovskaya
with a private right of action for the injury she suffered at the
meat-slicing machine, contrary to Zagorovskaya’s claim. In
Solus, the Court held that the federal OSHA did not preempt
California’s unfair competition law with respect to claims based
on workplace safety and health violations. Zagorovskaya did not
bring a claim under the unfair competition law.
4. Intentional Infliction of Emotional
Distress against Gulasarian
Zagorovskaya contends that the trial court erred by
granting summary judgment in favor of Gulasarian, the store
manager at Super King, on Zagorovskaya’s cause of action
for intentional infliction of emotional distress. We disagree.
“A cause of action for [intentional infliction of emotional
distress] requires proof of: (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 suffered severe emotional distress; and (3) the
defendant’s extreme and outrageous conduct was the actual and
proximate cause of the severe emotional distress. (Hughes v. Pair
(2009) 46 Cal.4th 1035, 1050 . . . .)
“A defendant’s conduct is considered to be outrageous
if ‘it is so “ ‘ “extreme as to exceed all bounds of that usually
tolerated in a civilized community.” ’ ” ’ ” (Crouch v. Trinity
Christian Center of Santa Ana, Inc. (2019) 39 Cal.App.5th 995,
1007 (Crouch).) Another explanation of the relevant standard
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comes from a comment to the Restatement Second of Torts,
section 46: “ ‘Liability has been found only where the conduct
has been so outrageous in character, and so extreme in degree,
as to go beyond all possible bounds of decency, and to be
regarded as atrocious, and utterly intolerable in a civilized
community. Generally, the case is one in which the recitation
of the facts to an average member of the community would
arouse his resentment against the actor, and lead him to exclaim,
“Outrageous!” ’ (Rest.2d Torts, § 46, com. d, p. 73.)” (Crouch,
supra, 39 Cal.App.5th at p. 1007.)
Gulasarian’s actions with respect to Zagorovskaya simply
do not rise to this level. Zagorovskaya declared that when
she reported her finger injury to Gulasarian, he refused to
call 911 and told Zagorovskaya to drive herself to the hospital.
Approximately 40 minutes later, Gulasarian asked an employee
to drive Zagorovskaya to the hospital. Her evidence, however,
does not show that her injuries were so severe that she needed
to be taken to the hospital in an ambulance. Further, there is
insufficient evidence in the record to support an inference that
Gulasarian knew of Shaverdian’s alleged misconduct toward
Zagorovskaya.
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DISPOSITION
The judgment of the trial court is affirmed. Respondents
are awarded their costs on appeal.
NOT TO BE PUBLISHED.
ROTHSCHILD, P. J.
We concur:
BENDIX, J.
FEDERMAN, J.*
* Judge of the San Luis Obispo County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6
of the California Constitution.
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