Kabasele v. Ulta Salon, Cosmetics & Fragrance, Inc.

Opinion

1 2 3 4 IN THE UNITED STATES DISTRICT COURT 5 FOR THE NORTHERN DISTRICT OF CALIFORNIA 6 7 DORCAS-COTHY KABASELE, Case No. 21-cv-07458-MMC

8 Plaintiff, ORDER DENYING DEFENDANT'S 9 v. MOTION TO DISMISS THIRD CAUSE OF ACTION; VACATING HEARING 10 ULTA SALON, COSMETICS & FRAGRANCE, INC., et al., 11 Defendants.

12 13 Before the Court is defendant Ulta Salon, Cosmetics & Fragrance, Inc.'s ("Ulta") 14 Motion, filed October 20, 2021, "to Dismiss Plaintiff's Third Cause of Action in the 15 Complaint." Plaintiff Dorcas-Cothy Kabasele ("Kabasele") has filed opposition, to which 16 Ulta has replied. Having read and considered the papers filed in support of and in 17 opposition to the motion, the Court deems the matter appropriate for determination on the 18 parties' respective written submissions, VACATES the hearing scheduled for December 19 17, 2021, and rules as follows. 20 Kabasele was formerly employed by Ulta and worked at its "retail store" in San 21 Ramon, California. (See Compl. ¶ 9.) In her complaint, Kabasele asserts three Causes 22 of Action, each alleging a violation of the Fair Employment and Housing Act ("FEHA"). In 23 the First Cause of Action, titled "Violation of Gov. Code § 12940(j) (Harassment)," 24 Kabasele alleges that her supervisor, defendant Janelle Wright ("Wright")1 (see Compl. 25 ¶ 3) engaged in "unlawful harassment" (see Compl. ¶ 35) on the basis of "race" (see 26

27 1 Kabasele has not, to date, filed proof she has served the summons and 1 Compl. ¶ 22). In the Second Cause of Action, titled "Violation of Government Code 2 § 12940(h) (Retaliation)," Kabasele alleges that, after she "complained to Ulta's 3 management" about Wright (see Compl. ¶ 22), Ulta "retaliated against Kabasele" (see 4 Compl. ¶ 41). In the Third Cause of Action titled "Violation of Government Code 5 §§ 12940(j)(1), (k)," Kabasele alleges Ulta "failed to prevent the harassment and 6 retaliation." (See Compl. ¶ 47.) 7 As noted, Ulta seeks dismissal of the Third Cause of Action, which claim is based 8 on alleged violations of Government Code §§ 12940(j)(1) and 12940(k). Section 9 12940(j)(1) provides that "[a]n entity shall take all reasonable steps to prevent 10 harassment from occurring." See Cal. Gov't Code § 12940(j)(1). Section 12940(k) 11 provides that it is an unlawful business practice for "an employer . . . to fail to take all 12 reasonable steps necessary to prevent discrimination or harassment from occurring." 13 See Cal. Gov't Code § 12940(k); Taylor v. City of Los Angeles Dep't of Water and Power, 14 144 Cal. App. 4th 1216, 1239-40 (2006) (holding "retaliation" is form of "discrimination" 15 for purposes of § 12940(k)). 16 Ulta first argues that "there is no separate cause of action" for a failure to prevent 17 harassment or retaliation "apart from the underlying harassment or retaliation." (See 18 Def.'s Mot. at 2:5-6.) In support thereof, Ulta relies on cases in which the plaintiff alleged, 19 but then failed to establish, he/she plaintiff was subjected to harassment or 20 discrimination; under such circumstances, a failure to prevent harassment or 21 discrimination claim necessarily fails. See, e.g., Trujillo v. North County Transit District, 22 63 Cal. App. 4th 280, 289 (holding plaintiff cannot establish failure to prevent harassment 23 or discrimination claim without establishing "foundational predicate of harassment or 24 discrimination"). Here, however, Ulta has not challenged the First and Second Causes of 25 Action, and, consequently, Ulta has not shown Kabasele lacks a viable harassment or 26 discrimination claim. See Achal v. Gate Gourmet, Inc., 114 F. Supp. 3d 781, 804 (N.D. 27 Cal. 2015) (denying motion to dismiss failure to prevent discrimination claim where 1 Ulta next argues that Kabasele, by seeking damages for harassment and 2 retaliation, as well as damages for the failure to prevent such conduct, "impermissibly 3 || seeks duplicative recovery based on the same alleged harm." (See Def.'s Mot. at 3:20- 4 || 22.) In support thereof, Ulta relies on the established principle that a plaintiff "is not 5 || entitled to more than a single recovery for each distinct item of compensable damage 6 || supported by the evidence." See Roby v. McKesson Corp., 47 Cal. 4th 686, 702 (2009). 7 || At this early stage of the proceedings, however, Ulta has not shown that the damages 8 || Kabasele may seek for acts constituting harassment or retaliation necessarily will 9 || duplicate the damages Kabasele may seek for acts constituting a failure to prevent 10 harassment or retaliation. See id. at 703 (observing a trier of fact could find "each 11 individual act of discrimination leading up to [a] termination inflict[s] a separate emotional g 12 || injury"; reviewing jury verdict to determine whether three non-economic damages awards s 13 || "overlapped"). 14 Accordingly, Ulta has not shown the Third Cause of Action is subject to dismissal. CONCLUSION a 16 For the reasons stated above, Ulta's motion to dismiss is hereby DENIED. 17 IT IS SO ORDERED.

19 || Dated: December 10, 2021 bane Cat INE M. CHESNEY 20 United States District Judge 21 22 23 24 25 26 27 28