Filed 7/22/13 Elster v. Fishman CA2/7
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION SEVEN


JERI ELSTER,                                                         B239651

         Plaintiff and Appellant,                                    (Los Angeles County
                                                                     Super. Ct. No. BC455317)
         v.

JOEL FISHMAN et al.,

         Defendants and Respondents.




         APPEAL from a judgment of the Superior Court of Los Angeles County, Ronald
M. Sohigian, Judge. Reversed with directions.
         Cohen & Lord, Bruce M. Cohen and Rae Lamothe for Plaintiff and Appellant.
         Lisa R. Jaskol for Women Lawyers Association of Los Angeles and California
Women Lawyers as Amici Curiae on behalf of Plaintiff and Appellant.
         Finestone & Richter, Eric F. Edmunds, Jr. and D. Jason Davis for Defendants and
Respondents.


                                          _______________________
                                     INTRODUCTION


         An attorney sent his secretary multiple rounds of offensive emails. Some were
pornographic; some contained vulgar and sexually explicit language. After each series of
emails the employee promptly complained to the law firm‟s office manager, but to no
avail. The employee‟s doctor eventually put her on medical leave. The employee
subsequently sued the law firm and the attorney for sexual harassment, failure to prevent
sexual harassment, retaliation under the California Fair Employment and Housing Act
(FEHA; Gov. Code,1 § 12900 et seq.), and intentional infliction of emotional distress.
The trial court entered judgment in favor of the attorney and the law firm after sustaining
their demurrers to the employee‟s causes of action in the second amended complaint for
violation of FEHA and their demurrer to the employee‟s cause of action in the third
amended complaint for intentional infliction of emotional distress, both without leave to
amend.
         The issues in this appeal are whether the employee‟s allegations stated causes of
action for violation of FEHA, and whether the exclusivity provision of the workers‟
compensation law bars her cause of action for intentional infliction of emotional distress.
We answer the first question in the affirmative and answer the second in the negative.
Therefore, we reverse the judgment and remand for further proceedings.




1        All further statutory references are to the Government Code unless otherwise
noted.


                                              2
                                          FACTS2


       In 1992 plaintiff Jeri Elster was the victim of a violent home invasion rape. She
survived and became a productive member of the workforce.
       In September 2008 defendant Finestone & Richter APC (F&R) hired Elster as a
legal secretary. Attorney Jeffrey Richter, F&R‟s managing partner, assigned Elster to
work with defendant Joel Fishman and another attorney, Jay Stein. Fishman instructed
Elster that as part of her daily responsibilities, she had to receive and open “as many as
30 or more emails per day from and for Fishman.” Elster had to give “personal attention
of some nature (printing, filing, following instructions embedded therein, etc.), so reading
each and every email completely, including reviewing attachments, was required by
Fishman.” Fishman and F&R knew that Elster had been raped.
       In 2009 Fishman sent Richter a “sexually explicit email inquiring (purportedly on
behalf of a client) as to the size of Richter‟s penis” (the penis email) and copied Elster.
Elster promptly informed Hanna Latinovic, the office manager, about the penis email and
asked that such sexually explicit conduct cease. Elster did not receive notification that
the law firm had taken any corrective action.
       On October 28, 2010 Fishman sent an email containing a pornographic video
attachment directly to Elster and others. The video depicted a woman taking off her gym
clothes and “engaging in provocative exercises in a gym while completely nude.” The
email‟s subject line read “[m]eet my new trainer” and did not give any indication of the
attachment‟s pornographic content (meet my new trainer email). Fishman wrote to Elster
and the other recipients: “Do you guys have personal trainers? I think this one might fill


2      We accept as true all material facts properly pleaded in the operative complaint or
reasonably inferred therefrom but not contentions, deductions, or conclusions of law.
(Apple Inc. v. Superior Court (2013) 56 Cal.4th 128, 156; Alliance for Protection of
Auburn Community Environment v. County of Placer (2013) 215 Cal.App.4th 25, 29;
Intengan v. BAC Home Loans Servicing LP (2013) 214 Cal.App.4th 1047, 1052; Lafferty
v. Wells Fargo Bank (2013) 213 Cal.App.4th 545, 564.)


                                              3
the bill!” Elster received numerous “reply to all” responses. In response to a comment
that “[w]e should all have one,” Fishman wrote “Yes! Did you guys notice that, in
addition to being in great physical condition, she also has large breasts?” In response to
this comment, another recipient wrote, “Not really watching baseball game. Well
maybe,” and Fishman responded, “Yeah, I wasn‟t paying much attention to her breasts
either, because I was more interested in a Purchase and Sale Agreement for a business I
am helping a client sell.” In response to a comment about “[d]istractions,” Fishman
wrote “Fuck yes? Tits are tits!”
          Elster immediately told the office manager about the meet my new trainer email
and again asked that the firm take corrective action. Elster also sent an email to the
participants in the “meet my new trainer” video email exchange and asked them to
remove her from their “to” and “cc” lists for emails with inappropriate attachments.
Richter responded to Elster and apologized “for the intrusion from these emails.”
Richter, however, did not tell Fishman to stop. Instead, Richter told Elster that he had
“asked [Fishman] to discontinue showing you as a cc so you are not copied on reply all,
and to either blind cc you (assuming you need to have the email for filing or calendaring)
or forwarding to you the initial email.” Elster interpreted Richter‟s email to mean that
F&R “condoned Fishman‟s conduct and that she should expect to continue receiving
sexually explicit communications from Fishman, despite her complaints and [F&R‟s]
knowledge of her history as a rape survivor.” Elster felt that her efforts to stop the sexual
harassment were ineffective, resulting in a feeling of helplessness.
          On December 2, 2010 Fishman sent Elster an email with the subject line, “Gift
idea,” and the message, “Says she knows you!” The email included an advertisement for
a Playboy magazine subscription. The advertisement depicted a naked woman with large
breasts wearing nothing but a Santa Claus hat (the naked Santa email). Elster promptly
complained again to Latinovic and asked for a third time that the firm take corrective
action.
          In lieu of any corrective action, F&R instructed or allowed Fishman to handle the
matter on his own. Fishman called Elster into his office “to say how badly he felt about

                                               4
everything he and his buddies had sent her, especially in light of „her background.‟”
Elster “was extremely offended,” believed that Fishman‟s apology was insincere, and
understood his “reference to „her background‟ to be a transparent reference to her home
invasion rape.”
       The following day Latinovic sent Fishman and Richter an email from Elster‟s
computer stating: “I am sitting at Jeri‟s desk. She just showed me the below [naked
santa] e-mail messages that were sent to her with an extremely inappropriate attachment.
Jeri is visibly upset and should not be subject to this. As your administrator, I am
advising you that in my opinion, we are seriously subjecting ourselves to a law suit [sic].
Jeri has had enough and will not tolerate this much longer. It has gone beyond the
„accidental‟ stage. [¶] Please make sure that this does not happen again.”
       On December 6, 2010, after Elster had complained about the penis, meet my new
trainer, and naked santa emails and responses, Fishman sent Elster flowers with a note
stating, “„I hope this week is uneventful. Best Joel.‟” Elster asked the receptionist to put
the flowers at the reception desk. When Fishman saw the flowers in the reception area,
he went behind Elster‟s desk and whispered in her ear, “did you donate them to the
firm?” Fishman had never before gone behind Elster‟s desk. Elster experienced “an
emotional response to Fishman invading her space.”
       The week of December 6, 2010 was not uneventful. On December 9 Fishman left
a work assignment for Elster in his outbox. Attached to this assignment was a series of
emails between Fishman and his wife. The first was a sexually suggestive email from
Fishman to his wife asking, “Can I feel you up in the car?” (the can I feel you up email).
The second email was his wife‟s response, “I certainly hope so!!!!!” At the end of a
lengthy reply, Fishman told his wife, “You rock (. . . the classroom the kitchen and the
bedroom).”
       Once again, Elster complained to Latinovic. Latinovic found Elster sobbing in
Stein‟s office and suggested that she take the rest of the day off with pay. Latinovic told
Elster that she had done “„all she could and was sorry.‟” Elster understood this to mean
the sexually explicit conduct would continue because Latinovic was powerless to stop it.

                                             5
       Finally, rather than addressing the problem by asking Fishman to stop, Richter
proposed that the firm fire Elster‟s best friend so that Elster could take her job working
for Richter. Elster was unwilling to have the firm fire her friend so that Elster could work
for Richter, who after all as managing partner of the firm had failed to stop Fishman‟s
conduct. On December 14, 2010 Elster‟s doctor placed her on medical leave.
       On January 26, 2011 Elster filed complaints with the Department of Fair
Employment and Housing against Fishman and F&R. That same day, the department
issued Elster notices of right to sue.


                            PROCEDURAL BACKGROUND


       On February 16, 2011 Elster filed this action. She alleged causes of action against
Fishman and F&R for (1) sexual harassment in violation of FEHA (§ 12940, subds. (a) &
(j)), (2) failure to prevent sexual harassment in violation of FEHA (id., subd. (k)),
(3) retaliation in violation of FEHA (id., subd. (h)) and (4) intentional infliction of
emotional distress. Fishman and F&R demurred to the third cause of action for
retaliation. On April 28, 2011 the trial court sustained Fishman and F&R‟s demurrer to
the retaliation cause of action without leave to amend as to Fishman and with leave to
amend as to F&R.3
       On May 10, 2011 Elster filed her first amended complaint, alleging the same four
causes of action but deleting Fishman as a defendant in her retaliation cause of action.
Fishman and F&R demurred to the first amended complaint in its entirety. Fishman and
F&R argued that “[t]he absence of a hostile work environment as a matter of law, and the
absence of any „adverse employment action‟ are fatal to all of Plaintiff‟s claims.” As to



3      On our own motion, and to aid in our review, we have augmented the record on
appeal to include the trial court‟s minute orders for April 28, June 24, August 31,
November 1, November 29, and December 16, 2011. (See Cal. Rules of Court,
rule 8.155(a)(1)(A).)


                                              6
Elster‟s intentional infliction of emotional distress claim, Fishman and F&R argued that
Elster had failed to allege facts showing that their conduct was sufficiently outrageous.
       On June 24, 2011 the trial court overruled Fishman and F&R‟s demurrer to the
first amended complaint as to Elster‟s intentional infliction of emotional distress cause of
action. The trial court sustained the demurrer to Elster‟s FEHA causes of action with
leave to amend. The court reasoned that Elster was “trying to allege a legal conclusion to
kind of highlight her intended characterization, but it‟s difficult to do that because the
appellate jurisprudence that refers to this concept of claims or conduct being sufficiently
severe or pervasive to alter the conditions of the employment and to create an abusive
working environment,” cannot be alleged in “conclusory terms and successfully resist
demurrer for failure to state ultimate facts sufficient to constitute a cause of action.” In
the trial court‟s view, the penis, meet my new trainer, naked Santa, and can I feel you up
emails and responsive commentary were not actionable because they were not
sufficiently severe to establish a hostile work environment and alter the conditions of
employment.
       On July 20, 2011 Elster filed her second amended complaint, realleging her FEHA
and intentional infliction of emotional distress causes of action. Fishman and F&R again
demurred but this time challenged only Elster‟s FEHA causes of action. Fishman and
F&R argued that “[t]he absence of a hostile work environment as a matter of law, and the
absence of any „adverse employment action‟ are fatal to each of [Elster‟s FEHA] claims.”
On August 31, 2011 the trial court sustained Fishman and F&R‟s demurrer to Elster‟s
three FEHA causes of action without leave to amend and gave them until September 12
to file their answer to the one remaining cause of action in the second amended
complaint, the fourth for intentional infliction of emotional distress.
       On October 7, 2011 Fishman and F&R filed a motion for judgment on the
pleadings on Elster‟s cause of action for intentional infliction of emotional distress. Their
sole argument was that the intentional infliction of emotional distress cause of action was




                                              7
barred by the exclusive remedy provision of the workers‟ compensation law.4 On
November 1, 2011 the trial court agreed and granted Fishman and F&R‟s motion with
leave to amend.
       On November 10, 2011 Elster filed her third amended complaint again alleging
causes of action for sexual harassment, failure to prevent sexual harassment, retaliation,
and intentional infliction of emotional distress. Fishman and F&R demurred to Elster‟s
third amended complaint, arguing that her sole remaining cause of action for intentional
infliction of emotional distress was “barred by the exclusive remedy provision of the
workers‟ compensation laws.”5 Fishman and F&R also filed a motion to strike the causes
of action for sexual harassment, failure to prevent sexual harassment, and retaliation, on
the ground that the trial court on August 31, 2011 had sustained the demurrer to those
causes of action in the second amended complaint and had not given Elster leave to
amend.
       On December 16, 2011 the trial court sustained Fishman and F&R‟s demurrer to
Elster‟s cause of action for intentional infliction of emotional distress without leave to
amend, and granted their motion to strike “because Plaintiff improperly re-alleges the
Causes of Action that were disposed by the Court[‟]s August 31, 2011 adjudication of
Defendants[‟] Demurrer Second Amended Complaint.” The court ruled: “It seems
manifest on this record that the plaintiff has amended and has stated all of the ultimate
facts that she is capable of stating.”
       On January 3, 2012 the trial court entered judgment in favor of Fishman and F&R
and against Elster. Elster appeals.




4      At the hearing on their demurrer Fishman and F&R disavowed any argument that
their behavior was not sufficiently outrageous.
5      Fishman and F&R also asked the trial court to take judicial notice of the record in
Elster‟s Workers‟ Compensation Appeals Board action, Elster v. Finestone & Richter,
APC, WCAB case No. ADJ7623032.


                                              8
                                        DISCUSSION


       A.     Standard of Review
       “On appeal from a judgment dismissing an action after sustaining a demurrer
without leave to amend, the standard of review is well settled. We give the complaint a
reasonable interpretation, reading it as a whole and its parts in their context. (Zelig v.
County of Los Angeles (2002) 27 Cal.4th 1112, 1126 . . . .) Further, we treat the demurrer
as admitting all material facts properly pleaded, but do not assume the truth of
contentions, deductions or conclusions of law. (Ibid.; Aubry v. Tri-City Hospital Dist.
(1992) 2 Cal.4th 962, 966-967 . . . .) When a demurrer is sustained, we determine
whether the complaint states facts sufficient to constitute a cause of action. (Zelig, supra,
27 Cal.4th at p. 1126.) 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. (Ibid.)” (City of Dinuba
v. County of Tulare (2007) 41 Cal.4th 859, 865; see San Mateo Union High School Dist.
v. County of San Mateo (2013) 213 Cal.App.4th 418, 425-426.)
       Typically, when a plaintiff chooses to amend her complaint rather than to appeal
the sustaining of a demurrer, she waives the right to appeal any error in sustaining the
demurrer following a ruling on any subsequent demurrer. (City of Dinuba v. County of
Tulare, supra, 41 Cal.4th at p. 870; Aubry v. Tri-City Hospital Dist., supra, 2 Cal.4th at
p. 966, fn. 2; County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th
292, 312.) This rule is inapplicable, however, “if the trial court denied the plaintiff[]
leave to include those causes of action in an amended complaint.” (City of Dinuba,
supra, at p. 870.) This exception applies here.


       B.     FEHA Causes of Action
              1.      Elster Stated a Claim for Sexual Harassment
       FEHA prohibits sexual harassment in the workplace. (§ 12940, subd. (j)(1) [it is
an unlawful business practice “[f]or an employer . . . because of . . . sex . . . to harass an

                                               9
employee”]; see Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264,
277; Miller v. Department of Corrections (2005) 36 Cal.4th 446, 460-461; cf. Meritor
Sav. Bank, FSB v. Vinson (1986) 477 U.S. 57, 65 [106 S.Ct. 2399, 91 L.Ed.2d 49].)
“Sexual harassment consists of any unwelcome sexual advances, requests for sexual
favors, or other verbal or physical conduct of a sexual nature. [Citation.] It usually arises
in two contexts. „Quid pro quo‟ harassment conditions an employee‟s continued
enjoyment of job benefits on submission to the harassment. „Hostile work environment‟
harassment has the purpose or effect of either interfering with the work performance of
an employee, or creating an intimidating workplace. [Citation.]” (Rieger v. Arnold
(2002) 104 Cal.App.4th 451, 459; see Miller v. Department of Corrections, supra, 36
Cal.4th at p. 461, citing Fisher v. San Pedro Peninsula Hosp. (1989) 214 Cal.App.3d
590, 607-608.)
       Elster‟s sexual harassment claim is based on the existence of a hostile work
environment. To state a cause of action for hostile work environment sexual harassment,
the plaintiff must allege that (1) she was subjected to unwelcome sexual advances,
conduct or comments; (2) the harassment was premised on sex; and (3) the harassment
was sufficiently pervasive or severe so as to alter the conditions of employment and
create an abusive working environment. (Kelley v. The Conco Companies (2011) 196
Cal.App.4th 191, 202-203; Fisher v. San Pedro Peninsula Hosp., supra, 214 Cal.App.3d
at p. 608.)
       “In evaluating hostile work environment claims, California looks to both our own
state cases and federal authority under title VII of the Civil Rights Act of 1964.
[Citation.] To be actionable, the sexual harassment must be sufficiently severe or
pervasive „“„to alter the conditions of [the victim‟s] employment and create an abusive
working environment.‟”‟ [Citation.] „Whether the sexual conduct complained of is
sufficiently pervasive to create a hostile or offensive work environment must be
determined from the totality of the circumstances. [Citation.] The plaintiff must prove
that the defendant‟s conduct would have interfered with a reasonable employee‟s [fn.
omitted] work performance and would have seriously affected the psychological well-

                                             10
being of a reasonable employee and that she was actually offended.‟ [Citation.]”
(Mokler v. County of Orange (2007) 157 Cal.App.4th 121, 141-142.) There is no
requirement, however, “„that the employee endure sexual harassment until his or her
psychological well-being is so spent that the employee requires psychiatric assistance.‟”
(Id. at p. 144.)
       “„The factors that can be considered in evaluating the totality of the circumstances
are: (1) the nature of the unwelcome sexual acts or works (generally, physical touching is
more offensive than unwelcome verbal abuse); (2) the frequency of the offensive
encounters; (3) the total number of days over which all of the offensive conduct occurs;
and (4) the context in which the sexually harassing conduct occurred. [Citation.] [¶] In
determining what constitutes “sufficiently pervasive” harassment, the courts have held
that acts of harassment cannot be occasional, isolated, sporadic, or trivial, rather the
plaintiff must show a concerted pattern of harassment of a repeated, routine or a
generalized nature. [Citation.] [¶] “[W]hile an employee need not prove tangible job
detriment to establish a sexual harassment claim, the absence of such detriment requires a
commensurately higher showing that the sexually harassing conduct was pervasive and
destructive of the working environment.” [Citation.]‟ [Citation.] „. . . “[S]imple teasing,
offhand comments, and isolated incidents (unless extremely serious) will not amount to
discriminatory changes in the terms and conditions of employment.” [Citation.]‟
[Citation.]” (Mokler v. County of Orange, supra, 157 Cal.App.4th at p. 142.)
       Sexual harassment is actionable under FEHA when there is “a pattern of
continuous, pervasive harassment,” giving rise to a hostile work environment that is both
objectively and subjectively offensive. (Fisher v. San Pedro Peninsula Hosp., supra, 214
Cal.App.3d at p. 611; see Fuentes v. AutoZone, Inc. (2011) 200 Cal.App.4th 1221, 1226.)
“„Therefore, “a plaintiff who subjectively perceives the workplace as hostile or abusive
will not prevail . . . if a reasonable person . . . considering all the circumstances, would
not share the same perception.” [Citation.]‟ [Citation.]” (Fuentes, supra, at p. 1226.)
“Whether an employee was subjected to a hostile work environment is ordinarily [a
question] of fact.” (Rehmani v. Superior Court (2012) 204 Cal.App.4th 945, 959.)

                                              11
       The primary issue in this case is whether Elster alleged facts sufficient to establish
“a pattern of continuous, pervasive harassment.” (Fisher v. San Pedro Peninsula Hosp.,
supra, 214 Cal.App.3d at p. 611.) We conclude that she has.
       Elster promptly complained to the office manager after receiving the penis email
in 2009, putting F&R and Fishman on notice of the offensive content of the email.
Despite this notice, and after a brief respite, Fishman continued sending Elster sexually
explicit emails that he and the firm knew were inappropriate.
       In October 2010, after Fishman sent her the meet my new trainer email and
received the responsive commentary on the “trainer‟s” breasts, Elster promptly lodged
her second complaint with the firm. In response, Richter apologized but essentially
stated that the firm would not instruct Fishman to discontinue sending Elster sexually
explicit emails. All Richter did was report that he had asked Fishman to list Elster as a
bcc rather than a cc. Although this new system would be an improvement, it would not
stop the misconduct: the firm was allowing Fishman to email Elster without restricting
the content of the emails. In the absence of any direction by Richter to Fishman to stop
sending inappropriate non-work related emails to Elster, she reasonably believed that
F&R condoned Fishman‟s conduct or at least would allow it to continue, and reasonably
feared that she would continue to receive sexually inappropriate emails from Fishman.
       Elster‟s fears were realized on December 2, 2010 when Fishman sent Elster the
naked Santa email. Elster complained to the firm a third time. Fishman apologized to
Elster, but proceeded to make matters worse by sending Elster flowers with a note hoping
that her week was “uneventful” (a circumstance Fishman controlled) and making a
physical advance by going behind Elster‟s desk for the first time and asking in a whisper
whether she had donated the flowers to the firm. A few days later Fishman left Elster the
can I feel you up email exchange with his wife attached to a work assignment. Latinovic
found Elster crying in Stein‟s office, suggested that she take the remainder of the day off
with pay, and said she was sorry and had done all she could. Elster took this to mean that
Latinovic was powerless to stop the harassment. And Richter‟s proposed solution was



                                             12
not much of one: fire Elster‟s best friend at the firm so that Elster could work for the man
who had refused “to put a stop to Fishman‟s conduct.”
       These facts viewed in their totality state a claim for sexual harassment based on a
hostile work environment. Fishman‟s sexually inappropriate emails and attachments
were entirely unwelcome by Elster. Indeed, Fishman‟s emails were particularly
unwelcome because Fishman and F&R knew that Elster had been a rape victim. Despite
Elster‟s prompt complaint about the first email (the penis email), Fishman persisted in
harassing Elster by sending her the meet my new trainer and the naked Santa emails and
by giving her a copy of the can I feel you up email.6 Despite Elster‟s further
protestations, Fishman proceeded beyond electronic harassment to live, real-time
harassment by sending Elster flowers, physically approaching Elster behind her desk,
invading her personal space, and whispering in her ear. Moreover, the context in which
the sexually harassing conduct occurred supports a hostile work environment claim.
Unlike the plaintiff in Lyle v. Warner Brothers Television Productions, supra, 38 Cal.4th
264, Elster worked in a law firm, not on the set of a television show about young adults
and their romantic encounters and adventures. Unlike the plaintiff in Lyle, Elster was a
legal secretary who was not supposed to and did not expect to receive sexually charged
emails from her boss unrelated to her job, not a comedy writer‟s assistant who was
forewarned that as part of her job duties she would be hearing and transcribing jokes and
discussions of a sexual nature. And although the total number of days over which
Fishman‟s sexually offensive conduct occurred was not extensive, his conduct increased
in frequency in late 2010 and as Elster continued to complain. In any event, the total



6      Fishman and F&R argue that Elster‟s case is based on only four emails. That is
not an accurate characterization of Elster‟s allegations. Elster alleges four instances of
sexual emails, which included many more than four emails. According to the complaint
and the exhibits attached to the complaint, Fishman and the other participants in the email
chain sent Elster at least 13 separate emails. Discovery may reveal more. In addition,
Elster does not have a copy of the penis email, and may not be able to obtain any related
emails until she has had a chance to conduct discovery.


                                             13
number of days over which the harassment occurs is only one factor in evaluating the
totality of the circumstances.
       Elster‟s allegations describe a law firm environment that was both subjectively
and objectively offensive, hostile, and abusive. (See Dominguez v. Washington Mutual
Bank (2008) 168 Cal.App.4th 714, 725 [the determination of whether there is a hostile
work environment “requires the use of common sense and an appropriate sensitivity to
social context to determine whether a reasonable person in the plaintiff‟s position would
have found the conduct severely hostile or abusive”].) The factual issue of whether the
conduct of Fishman and F&R was sufficiently severe and pervasive to constitute hostile
work environment sexual harassment was for the jury. (Rehmani v. Superior Court,
supra, 204 Cal.App.4th at p. 959; Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th
243, 264; see O’Shea v. Yellow Technology Services, Inc. (10th Cir. 1999) 185 F.3d
1093, 1098 [“the severity and pervasiveness evaluation . . . is „“quintessentially a
question of fact”‟”]; Hoyle v. Freightliner, LLC (4th Cir. 2011) 650 F.3d 321, 333
[same]; Betts v. Costco Wholesale Corp. (6th Cir. 2009) 558 F.3d 461, 468 [same];
Howard v. Burns Bros., Inc. (8th Cir. 1998) 149 F.3d 835, 840 [“Once there is evidence
of improper conduct and subjective offense, the determination of whether the conduct
rose to the level of abuse is largely in the hands of the jury.”]; Chin et al., Cal. Practice
Guide: Employment Litigation (The Rutter Group 2012) ¶ 10:164, p. 10-33 [“[t]he level
of severity or pervasiveness required to transform a merely annoying or uncomfortable
work environment into an actionable, sexually harassing „hostile environment‟ is usually
a question of fact, to be determined by looking at all the circumstances”].) The trial court
should not have resolved the issue on the pleadings and should have overruled the
demurrer.


              2.      Elster Stated a Claim for Failure To Prevent Sexual Harassment
                      Against F&R
       Under FEHA, it is unlawful “[f]or an employer . . . to fail to take all reasonable
steps necessary to prevent discrimination and harassment from occurring.” (§ 12940,

                                              14
subd. (k); see Northrop Grumman Corp. v. Workers’ Comp. Appeals Bd. (2002) 103
Cal.App.4th 1021, 1035.) To state a claim for failure to prevent discrimination or
harassment in the workplace, the employee must allege that she was subjected to
discrimination, harassment, or retaliation, that the employer failed to take reasonable
steps to prevent the harassment, and that this failure caused injury, damage, loss, or harm
to the employee. (See Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th 280,
289; Lelaind v. City & County of San Francisco (2008) 576 F.Supp.2d 1079, 1103.)
       F&R contends that it cannot be liable for failing to prevent sexual harassment
because Elster has not stated a claim for sexual harassment. “An actionable claim under
section 12940, subdivision (k) is dependent on a claim of actual discrimination [or
harassment]: „Employers should not be held liable to employees for failure to take
necessary steps to prevent such conduct, except where the actions took place and were
not prevented.‟” (Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1021,
quoting Trujillo v. North County Transit Dist., supra, 63 Cal.App.4th at p. 289; see
Thompson v. City of Monrovia (2010) 186 Cal.App.4th 860, 880 [because section 12940,
subdivision (j)(1), “does not create a stand-alone tort, the employee has no cause of
action for a failure to investigate unlawful harassment or retaliation, unless actionable
misconduct occurred”].) Because we conclude that Elster stated a cause of action for
sexual harassment, however, F&R‟s contention fails. Moreover, Elster amply detailed
F&R‟s failure to prevent sexual harassment by Fishman in the second amended
complaint. Indeed, F&R‟s response to Fishman‟s sexual harassment of Elster was not to
prevent it, but to allow it to continue and try to contain it by limiting (but not eliminating)
the sexually graphic and explicit emails Elster would receive from Fishman.
       The result is different, however, for Fishman. A “nonharassing supervisor, who
fails to take action to prevent sexual harassment, is not personally liable for sexual
harassment under [FEHA], as either an aider and abettor of the harasser or the employer,
or as an agent of the employer.” (Fiol v. Doellstedt (1996) 50 Cal.App.4th 1318, 1322.)
Similarly, a supervisor who is the actual harasser cannot be liable for failing to prevent
the very sexual harassment in which he or she engages. Rather, a supervisory harasser,

                                              15
such as Fishman, is subject to liability for the sexual harassment. (Page v. Superior
Court (1995) 31 Cal.App.4th 1206, 1212.) Therefore, Elster has failed to state a cause of
action for failure to prevent sexual harassment against Fishman.


              3.     Elster Did Not a State Claim for Retaliation
       FEHA also prohibits an employer from retaliating against an employee for
opposing incidents of discrimination or sexual harassment in the workplace. (See
§ 12940, subd. (h) [It is an unlawful employment practice “[f]or any employer . . . or
person to discharge, expel, or otherwise discriminate against any person because the
person has opposed any practices forbidden under this part or because the person has
filed a complaint, testified, or assisted in any proceeding under this part.”]; Miller v.
Department of Corrections, supra, 36 Cal.4th at p. 472; Sanchez v. Swissport, Inc. (2013)
213 Cal.App.4th 1331, 1341.) “A violation of this prohibition occurs when the employer
takes harmful action against an employee in retaliation for the latter‟s engaging in
protected activity.” (McCaskey v. California State Automobile Assn. (2010) 189
Cal.App.4th 947, 987.) Objecting in good faith about sexual harassment constitutes
protected activity. (See Joaquin v. City of Los Angeles (2012) 202 Cal.App.4th 1207,
1220 [reporting sexual harassment is a protected activity under FEHA].)
       To establish a prima facie case of retaliation under FEHA, an employee must show
that she engaged in a protected activity, her employer subjected her to adverse
employment action, and there is a causal link between the protected activity and the
employer‟s action. (McGrory v. Applied Signal Technology, Inc. (2013) 212 Cal.App.4th
1510, 1525.) Although Elster adequately pleaded that she engaged in protected activity,
noticeably absent from Elster‟s second amended complaint are any allegations suggesting
that F&R subjected her to any adverse employment action after she objected to
Fishman‟s conduct. Elster did not allege that F&R terminated, suspended, or demoted
her or that F&R changed her responsibilities after she complained to the firm about the
emails. In the absence of factual allegations of adverse employment action by F&R, the
trial court correctly sustained the demurrer to Elster‟s retaliation cause of action. (See

                                              16
Taylor v. City of Los Angeles Dept. of Water & Power (2006) 144 Cal.App.4th 1216,
1229, disapproved on another ground in Jones v. Lodge at Torrey Pines Partnership
(2008) 42 Cal.4th 1158, 1173-1174.)7
       The burden of proving there is a reasonable possibility that the defect can be cured
by amendment “„is squarely on the plaintiff.‟” (Pfeifer v. Countrywide Home Loans, Inc.
(2012) 211 Cal.App.4th 1250, 1261; accord, San Mateo Union High School Dist. v.
County of San Mateo, supra, 213 Cal.App.4th at p. 426.) Because Elster does not assert
that she can cure the defect, the trial court did not abuse its discretion in denying leave to
amend her third cause of action for retaliation. (Pfeifer, supra, at p. 1261.)


       C.     Intentional Infliction of Emotional Distress
       “Workers‟ compensation provides the exclusive remedy against an employer for
an injury sustained by an employee in the course of employment and compensable under
the workers‟ compensation law. [Citations.] This precludes a tort remedy against the
employer if the conditions of compensation are present.” (Angelotti v. The Walt Disney
Co. (2011) 192 Cal.App.4th 1394, 1403; see Lab. Code, §§ 3600, 3601.)
       “[T]he workers‟ compensation exclusivity rule applies only if the risks resulting in
the injury were encompassed within the „compensation bargain.‟ [Citation.] The
exclusivity rule is based on the „presumed “compensation bargain”‟ in which the
employer assumes liability for injury or death arising out of and in the course of
employment without regard to fault, and compensation is relatively swift, in exchange for
limitations on the amount of liability. [Citation.] The compensation bargain does not
encompass conduct that contravenes a fundamental public policy or exceeds the risks


7      Fishman cannot be personally liable for retaliation under FEHA. (See Jones v.
Lodge at Torrey Pines Partnership, supra, 42 Cal.4th at pp. 1160, 1173 [the employer,
but not nonemployer individuals, may be held liable for retaliation under FEHA];
Haligowski v. Superior Court (2011) 200 Cal.App.4th 983, 993 [“an individual may not
be held personally liable for retaliation under the FEHA”]; Nazir v. United Airlines, Inc.,
supra, 178 Cal.App.4th at p. 287 [“no individual liability for retaliation”].)


                                              17
inherent in the employment relationship. [Citations.]” (Singh v. Southland Stone, U.S.A.,
Inc. (2010) 186 Cal.App.4th 338, 366; see Gantt v. Sentry Insurance (1992) 1 Cal.4th
1083, 1100, overruled on another ground in Green v. Ralee Engineering Co. (1998) 19
Cal.4th 66, 80, fn. 6; Cole v. Fair Oaks Fire Protection Dist. (1987) 43 Cal.3d 148, 161.)
       “An employer‟s intentional misconduct in connection with actions that are a
normal part of the employment relationship, such as demotions and criticism of work
practices, resulting in emotional injury is considered to be encompassed within the
compensation bargain, even if the misconduct could be characterized as „manifestly
unfair, outrageous, harassment, or intended to cause emotional disturbance.‟ [Citation.]
Workers‟ compensation ordinarily provides the exclusive remedy for such an injury.
[Citations.] Conduct in which an employer steps out of its „“proper role”‟ as an employer
or conduct of „“questionable relationship to the employment,”‟ however, . . . is not
encompassed within the compensation bargain and is not subject to the exclusivity rule.
[Citation.]” (Singh v. Southland Stone, U.S.A., Inc., supra, 186 Cal.App.4th at p. 367.)
Thus, “[t]he workers‟ compensation exclusivity rule does not apply to any injury
resulting from conduct in violation of a fundamental public policy . . . .” (Id. at p. 368.)
       As noted above, FEHA prohibits discrimination and harassment in the workplace
because of sex. (§ 12940, subds. (a), (j); Lyle v. Warner Brothers Television Productions,
supra, 38 Cal.4th at p. 277.) “These prohibitions represent a fundamental public policy
decision regarding „the need to protect and safeguard the right and opportunity of all
persons to seek and hold employment free from discrimination.‟ [Citations.]” (Lyle,
supra, at p. 277.) Because Elster‟s intentional infliction of emotional distress claim stems
from Fishman‟s sexual harassment, a risk not reasonably encompassed in the
compensation bargain, the workers‟ compensation exclusivity rule does not bar Elster‟s
intentional infliction of emotional distress claims. (Singh v. Southland Stone, U.S.A.,
Inc., supra, 186 Cal.App.4th at p. 367; accord, Gantt v. Sentry Insurance, supra, 1
Cal.4th at p. 1100; Cole v. Fair Oaks Fire Protection Dist., supra, 43 Cal.3d at p. 161;
see Murray v. Oceanside Unified School Dist. (2000) 79 Cal.App.4th 1338, 1363
[emotional distress based on sexual harassment not barred by exclusivity provisions of

                                             18
workers‟ compensation laws]; Accardi v. Superior Court (1993) 17 Cal.App.4th 341, 347
[“[d]iscrimination . . . is not a normal incident of employment,” and a “claim for damages
under [FEHA] [citation] is not preempted by the workers‟ compensation act”]; Hart v.
National Mortgage & Land Co. (1987) 189 Cal.App.3d 1420, 1424, 1430 [coworker‟s
alleged acts of making sexually suggestive remarks and gestures and grabbing the
plaintiff‟s genitals were not a normal part of employment relationship].)


                                     DISPOSITION


       The judgment is reversed. The matter is remanded to the trial court with
directions (1) to vacate its order sustaining Fishman and F&R‟s demurrer to the FEHA
causes of action in Elster‟s second amended complaint without leave to amend and to
enter a new order sustaining the demurrer to the second cause of action without leave to
amend as to Fishman only and otherwise overruling the demurrer, and (2) to vacate its
order sustaining Fishman and F&R‟s demurrer to the intentional infliction of emotional
distress cause of action in the third amended complaint without leave to amend and to
enter a new order overruling that demurrer. Elster is to recover her costs on appeal.



                                                 SEGAL, J.*


We concur:



              PERLUSS, P. J.                            ZELON, J.




*       Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

                                            19
