Opinion
A158775
10-06-2021
ABDELBASSET ELAREF, Plaintiff and Appellant, v. ABLE SERVICES et al., Defendant and Respondent.
NOT TO BE PUBLISHED
City & County of San Francisco Super. Ct. No. CGC 16-554556
TUCHER, P.J.
In 2016, Abdelbassett Elaref filed the underlying wrongful termination action against Able Services (Able), a janitorial services company operating in the San Francisco area, and the union that represents Able's Bay Area employees, Service Employees International Union, Local 87 (SEIU). Elaref alleges that these defendants violated the California Family Rights Act (Gov. Code, § 12945.2 (CFRA)) and other anti-discrimination provisions of the Fair Housing and Employment Act (§ 12900, et seq. (FEHA)) by preventing him from returning to a specific job assignment that he had before taking a leave of absence to care for his ailing wife. This appeal follows SEIU's dismissal from the action. After the first phase of a bifurcated trial, the court determined that Elaref cannot establish SEIU's liability under the theories alleged in his complaint because SEIU was not his employer. The issue on appeal is whether the trial court abused its discretion by denying Elaref leave to amend to allege that SEIU aided and abetted Able's violation of the CFRA. We affirm the judgment.
Statutory references are to the Government Code, unless another statute is cited.
BACKGROUND
I. Elaref's Complaint Allegations
In September 2016, Elaref filed a complaint against Able, SEIU and 25 Doe defendants, seeking damages arising from the termination of his employment with Able. Elaref based his claims on the following factual allegations:
On March 12, 2012, Elaref was hired to work for Able as an “ ‘Additional Services' ” employee at Embarcadero Center. In June 2013, he obtained written confirmation from Able that his position at Embarcadero was “permanent.” In November 2014, he took a leave of absence from his job so he could care for his terminally ill wife, which was approved to continue until May 19, 2015. Elaref returned to work on April 7, but two days later he was called into the office of his supervisor, Bill Sivori, who informed him that he was “being terminated.” The only explanation Elaref was given was that “his position ‘had already been filled by another employee' and he was no longer needed for work.”
On April 13, 2015, Elaref contacted Sivori to find out why he had been terminated. Sivori told him to go to the union hall where full time work was available at other locations. Elaref asked for a “letter of termination, ” but Sivori said he could not provide one because he did not want to “ ‘get in trouble.' ” Sivori said he would talk to “HR” and see what he could do, but then called Elaref and apologized, saying that “ ‘the Union is playing games, and I cannot give you your position back.' ”
Elaref alleged that Able employees are all members of SEIU. On information and belief, he alleged that SEIU's “top managers... are of Latino descent, and favor Latino employees to the detriment of non-Latino employees, ” and that Able managers, including Sivori, acquiesce in or facilitate discrimination against Able's non-Latino employees. Elaref alleged further that Sivori removed Elaref from his position and replaced him with an employee of “Latino descent.” On April 14, 2015, Elaref filed a charge of discrimination and retaliation against Able and SEIU at the “EEOC/DFEH.”
Elaref alleged that he went to the union hall to find work, but he was not dispatched to any jobsites. Approximately a month after his termination, he was asked to work at a specific jobsite, but when he went to the union hall to get dispatched, “he was ignored.” Elaref believes SEIU did not dispatch him to any jobs because he is of Tunisian/Arabic national origin and to retaliate against him because he filed a discrimination claim.
In July 2015, Elaref exchanged emails with his former supervisor, Bill Sivori. Elaref asked why he was not allowed to work at his position, which was supposed to be protected while he was on leave. Sivori responded that Elaref was still employed by Able and if he went to the union hiring hall, he would be dispatched to sites in need of “temporary” employees. Elaref replied that he should not have to take a temporary position because he was designated as permanent in a letter issued to him by Human Resources. Elaref received an email response from Able employee Marina Berrios who told him that his permanency letter had been issued “ ‘in error.' ”
Claiming the defendants' refusal to restore his position constituted punishment for taking family leave and race discrimination, Elaref alleged seven causes of action in his complaint: (1st) interference with the right to take CFRA leave (§ 12945.2, subd. (a)); (2nd) retaliation for exercising the right to take CFRA leave (former § 12945.2, subd. (l); see current § 12945, subd. (k)); (3rd) discrimination on the basis of race/national origin in violation of FEHA (§ 12926, subd. (d)); (4th) retaliation for filing a discrimination claim in violation of FEHA (§ 12940, subd. (h)); (5th) failure to prevent discrimination and retaliation in violation of FEHA (§ 12940, subd. (k)); (6th) wrongful termination; and (7th) intentional infliction of emotional distress. Each cause of action was pled against all defendants except the 4th, which was alleged only against SEIU. Elaref sought damages according to proof, punitive damages, costs and attorney fees.
II. Summary Judgment Proceedings
In December 2018, Able and SEIU filed separate motions for summary judgment and/or summary adjudication.
A. Able's Evidence
Able's summary judgment evidence included a declaration from its Operations Manager Bill Sivori, who was Elaref's direct supervisor, and a declaration from Marina Berrios, who works in Able's Human Resources Department.
Sivori stated that Able is a party to a collective bargaining agreement between the San Francisco Maintenance Contractors Association and SEIU (the CBA). Under the CBA, Able employees are classified as either temporary or permanent; temporary employees are dispatched by SEIU's union hall to various locations, while permanent employees hold worksite-specific positions on an ongoing basis. In 2012, Elaref was hired as a temporary employee and was “eventually assigned” to “the M3 ‘additional services' position at Embarcadero Center.” In June 2013, Elaref asked Sivori for an employment verification letter because he was looking for new housing. Sivori asked Marina Berrios to provide the letter. In November 2014, Elaref took a medical leave of absence to care for his ailing wife.
While Elaref was on leave, Sivori was contacted by SEIU President Olga Miranda, who asked if Able had an open position at the Embarcadero where the union could place E. Garcia. Garcia, a permanent employee of Able, had left a position at the Embarcadero in October 2014 after Sivori changed Garcia's work schedule to accommodate a tenant client. At the request of Miranda, Sivori placed Garcia in the M3 position Elaref had before taking his leave, believing at the time that Garcia was filling in temporarily.
On April 3, 2015, a few days before Elaref returned from leave, Miranda informed Sivori that “permanent employee [E.] Garcia” must remain in the M3 position at Embarcadero Center. She instructed Sivori to tell Elaref to go to the union hall and request another job assignment with Able. Sivori tried to change Miranda's mind, but did not succeed. Miranda said Garcia needed the position with that work schedule because she had a special needs child. Miranda also opined that Garcia would file a complaint if Able replaced her with Elaref because Garcia had more seniority and was Able's permanent employee. Miranda did not give Sivori any reason to suspect or believe that SEIU was retaliating against Elaref for taking family medical leave or discriminating against him because of his race or national origin.
Sivori stated that after his April 3 conversation with Miranda, he called Elaref and told him that he could not return to his position at Embarcadero Center. Sivori told Elaref he could work at another Able building and that he could obtain a job assignment from the union hall with the same pay and benefits. After Elaref's last day working at Embarcadero, he contacted Sivori at least twice. The first time, Elaref called to ask for a letter of termination, and Sivori told Elaref he could not provide a letter because Able was still his employer. Later, in July 2015, Elaref sent an email to Sivori asking about his status. Sivori sent this response: “As far as I know you are still employed by Able and are active in our system. If you go down to the hiring [hall] you are on the list to be dispatched out to any sites needing a temporary employee.”
Marina Berrios's declaration provides additional details about how Elaref was hired by Able. On January 26, 2012, he submitted an application to Able and was provided a “Welcome Package” that provided information about benefits, leave policies and other employment policies. On March 28, 2012, Elaref became an SEIU member.
Berrios stated that in June 2013 Sivori asked her to provide Elaref with a “routine verification of employment letter.” Instead, she “accidentally” issued a letter designating Elaref as a permanent employee. Stating that the letter was unintentionally and erroneously issued, Berrios explained that she has never had authority to reclassify a temporary employee as a permanent employee because “a temporary employee becomes a permanent employee through seniority, with the Union.” In June 2013, Elaref was on Able's employee list of temporary employees, and E. Garcia was on Able's list of permanent employees.
Berrios further explained how, in November 2015, Elaref submitted a request to take a family leave of absence under the CFRA to care for his wife. On November 18, he began his leave. In January 2016, Elaref requested an extension of his leave, which Able approved. As of April 6, 2015, the week Elaref was scheduled to return from his leave, Elaref's name still appeared on the Able employee list for temporary employees but not on the list for permanent employees, where E. Garcia's name did appear.
In July 2015, Berrios responded to two emails Elaref had sent to Able inquiring about his employment. Berrios told Elaref that she issued the June 2013 permanency letter in error; that the letter was intended to be a verification of employment. Berrios also said Elaref had not been terminated by Able, he was still a temporary employee. She encouraged Elaref to go to the union hall and request a dispatch to any Able site that needed a temporary employee.
B. SEIU's Evidence
SEIU's summary judgment evidence included the declaration of SEIU President Olga Miranda, which provides details about how the CBA operates. Temporary employees are dispatched to a job assignment by the union hiring hall and “remain in that location until they are sent back to the hiring hall by the employer.” Upon an initial dispatch by the union, the employee begins to build seniority with the employer. The CBA also “ ‘covers the filling of available positions by each Employer' ” and requires employers to maintain four separate lists, one list of temporary employees and three lists of permanent employees, the “A, B, and C lists, ” which are “ordered by the employees' seniority with the company.”
Miranda explained that because the permanent lists constitute those non-laid off employees with the most seniority and who have thus achieved the highest wages, the CBA provides that “ ‘the most senior employee from the A, B or C list can bump the lesser wage temporary Employee,' ” which “means that a laid off permanent Able employee may ‘bump' a less senior temporary employee.”
Miranda stated that, because the CBA designates the union as the exclusive hiring hall for Able, any hiring that occurs outside the dispatch process is a “backdoor hire” that violates the CBA. The union “has always separated backdoor hires from wrongly obtained positions.” It sends the affected employee to the hiring hall to be properly hired but allows the individual to retain his or her earned seniority. The union's seniority system is designed to benefit top-rate workers who have served the most time with a company. It prevents the practice of making only lower-wage jobs permanent, and it protects all workers from favoritism.
Miranda stated that Able failed to comply with CBA requirements when it issued the July 2013 permanency letter to Elaref. Able had not notified the union that it had an open permanent day-porter (i.e. janitor) position to fill; and designating Elaref as permanent did not comply with CBA seniority rules. Also, the CBA required Able to notify SEIU about Elaref's leave of absence, which it failed to do.
Miranda recalled that Sivori called her in April 2015 to advise SEIU that Able intended to lay off two day porters, both with high seniority. Miranda went to Able's building to talk to the women, who told her that Able had given Elaref a “ ‘sweetheart' ” deal by hiring him through the backdoor for a coveted day-porter position despite his low seniority. Miranda “investigated” and determined Elaref had only three years seniority. Then she met with Sivori about the layoffs Able planned to make and asked about Elaref. Sivori said Elaref was a “ ‘special hire,' ” Miranda responded that classification does not exist under the CBA and “deduced” that Elaref was a backdoor hire. When Sivori told Miranda he would not lay off Elaref, she responded that she could not agree to keep Elaref in the day-porter position while an employee with more seniority was laid off because that would violate the CBA. Only then did Sivori disclose to Miranda that Elaref had been on family leave and was grieving the loss of his wife. Miranda told Sivori she was sorry for that, but allowing Elaref to have the position would still violate the CBA.
Miranda told Sivori that under the CBA, Garcia had the right to “ ‘bump' ” Elaref from his pre-leave spot; Garcia was entitled to that day-porter position; and Able had to send Elaref to the hiring hall. In taking these positions, Miranda was not motivated by considerations of race or national origin but solely by her responsibility to enforce the CBA. Ultimately, Able agreed to follow the CBA and give Garcia the day-porter position “as per her bumping rights under the CBA.”
Miranda met Elaref when he came to the union. Elaref “acted like he could not speak English, ” so Miranda asked SEIU Vice President Ahmed Abozayd to join them because Abozayd speaks Arabic. Miranda told Abozayd what she had learned about Elaref's situation-he was a backdoor hire; Able was planning other layoffs; Elaref had no right to return to his position; and Garcia was entitled to bump him because she had seniority. In response, Elaref told Miranda, in English, that he had a “permanent letter, ” and then began speaking Arabic to Abozayd. Miranda told Elaref she was sorry about his wife and said he could get full time work with the same benefits through the union hall dispatch process. But Elaref became angry and left.
Able filed a declaration from Ahmed Abozayd, who recalled meeting Elaref in April 2015 and listening to his story. Abozayd explained to Elaref that his “backdoor” hire violated the CBA, and that the union did not recognize his permanency letter because it had not been issued by a senior regional manager and was not accompanied by a corresponding dispatch from the union. Elaref was not “satisfied” with Abozayd's explanation and said he was going to see an attorney and file charges.
Miranda recalled receiving a call from Craig DiMartini, who works at Able. DiMartini asked Miranda to dispatch Elaref to a specific job, which she refused to do because that would constitute “an impermissible backdoor hire.” She told DiMartini Elaref needed to go to dispatch for an assignment. In taking this position, Miranda “was motivated entirely by contract enforcement, not discrimination or retaliation.”
C. Summary Judgment Rulings
On March 8, 2019, the trial court issued an order denying Able and SEIU summary judgment but granting each defendant summary adjudication of certain claims.
As to Able, the trial court granted summary adjudication on all but the first cause of action. On count one, for CFRA interference, the court found there was a triable issue as to Able's defense that Elaref's leave lasted longer than the 12-week statutory period. (See Rogers v. County of Los Angeles (2011) 198 Cal.App.4th 480 [reinstatement right under the CFRA applies only when employee returns to work on or before expiration of the 12-week protected leave].) Elaref claimed he did not exceed the statutory period because he took two shorter leaves, divided by calendar year.
On the remaining claims against Able, the court granted summary adjudication largely because Elaref had no evidence of discriminatory or retaliatory animus on the part of Able. On the second cause of action, for CFRA retaliation, Sivori's declaration established without dispute that Able wanted to reinstate Elaref to the day-porter position but did not because of Miranda's objections. As to the third cause of action, for discrimination on the basis of race/national origin, and the fifth cause of action, for failing to prevent discrimination or retaliation, Elaref could not prove these FEHA claims because he conceded during summary judgment proceedings that there was no evidence Able engaged in race-based discrimination, and Sivori's declaration established that Able's employment decision was not retaliatory. Because Able was dismissed from the discrimination and retaliation claims, the court also granted Able summary adjudication of the sixth cause of action, for wrongful termination. And Elaref's final cause of action, for intentional infliction of emotional distress, lacked merit because garden-variety personnel decisions are not outrageous conduct.
On the claims against SEIU, the court reached the same result for the same reason in denying summary adjudication on Elaref's first claim, and in granting SEIU summary adjudication on his last one. The court also granted SEIU summary adjudication on Elaref's third cause of action, for discrimination based on race/national origin, based on evidence that Miranda believed Elaref was an improper backdoor hire whom a person with seniority had the right to bump, which evidence Elaref failed to answer with evidence of racial animus. The court granted SEIU summary adjudication on count four, the FEHA retaliation claim, for similar reasons: Miranda's declaration showed that she did not agree to place Elaref in another Embarcadero position offered by Able because that would also have been a backdoor hire, and Elaref produced no evidence that she was retaliating for his having filed a discrimination claim against SEIU.
But on three of Elaref's claims, the court denied summary adjudication to SEIU although it had granted it to Able. On count two, the court found a triable issue as to whether SEIU's stated reason for preventing Elaref from returning to the day-porter position was a pretext for CFRA retaliation, as Elaref alleged. SEIU claimed that the CBA required Able to fill the position in accordance with seniority, but another provision of the CBA states that employer approval is also a “ ‘determining factor' ” when hiring for a day-porter position. Moreover, Elaref produced evidence that his permanency letter was never questioned until after he took family leave. The court also denied SEIU summary adjudication of the fifth cause of action, failing to prevent discrimination or retaliation, pursuant to its finding that there was a triable issue as to whether SEIU was liable for CFRA retaliation. By the same token, the court found a triable issue on count six, as to whether SEIU effectively terminated Elaref in violation of the CFRA. None of the claims against SEIU survived trial, however.
III. Trial Proceedings
A. Motions In Limine
When Elaref's trial began on March 25, 2019, there was general discussion about two motions in limine pertinent to this appeal. SEIU moved to exclude all evidence that it violated the CFRA (the only remaining claims) on the ground that SEIU was not Elaref's employer. Elaref filed a cross-motion for leave to amend his complaint to conform to proof by “expressly identify[ing] SEIU as his joint employer” and adding an allegation that if SEIU was not his employer, “SEIU aided and abetted Able in its violation of [the] CFRA.”
On March 26, the court advised the parties of its tentative rulings to (1) sever the question whether Elaref had an employee-employer relationship with SEIU for resolution at phase one of trial, and (2) deny Elaref's motion to amend his complaint as “untimely and too prejudicial.” After argument from counsel, the court adopted both tentative rulings, memorialized in a written order filed that same day.
In its March 26 order, the court explained that due to its summary judgment rulings, Elaref's remaining claims were limited to four, and that as to each of these, “Elaref's complaint pleads ‘employer' liability.” Thus, the court was presented with an issue of law as to whether an employee can have a cause of action against his union as an employer. As this issue was potentially dispositive of the remaining claims against SEIU, it was severed for decision by the court before proceeding with any remaining claims. (See Civ. Proc. Code, § 598.)
The March 26 order also explained why the court denied Elaref's motion to amend his complaint. A motion to amend to conform to proof is inapt, the court found, until proof has been introduced. Beyond that, the complaint already alleged employer liability against SEIU, so there was no need to expressly allege SEIU was an employer, and Elaref's request to add aiding and abetting allegations against SEIU was both untimely and prejudicial. Elaref could have made that amendment during the prior 30 months but failed to do so, and permitting the amendment on the eve of trial would fundamentally change the nature of Elaref's case.
B. Phase I Trial
At this trial phase, the sole issue before the court was whether SEIU functioned in the role of an employer under California labor law. Nevertheless, the court advised SEIU that it was reluctant to prevent Elaref from eliciting testimony on issues that were only “tangentially related” if that was the way he wanted to present his case. The parties presented evidence on March 27 and 28, 2019. Elaref called three witnesses: himself, Miranda, and Sivori. SEIU called Michael McGee, a former Able manager. The case was then continued for further briefing and the court's decision.
Meanwhile, on April 5, 2019, Elaref filed a motion to reconsider the order denying his motion to amend to conform to proof. The court denied this motion on June 17, 2019. In its order, the court observed that Elaref had conceded in his reconsideration motion that most of the allegedly new facts “were actually developed in summary adjudication proceedings in the months before trial... and that testimony from a trial witness merely provided ‘context.' ”
On June 17, 2019, the court also issued a final statement of decision that set forth the following findings of fact: Elaref applied to and was hired by Able to work as a janitor at Embarcadero Center; Able told Elaref what to do, supplied his equipment, scheduled his work hours and paid Elaref for his work. SEIU did none of these things. “Instead, the SEIU represents Able employees under a collective bargaining agreement in an adversarial relationship with Able.”
In 2013, Able sent Elaref a permanency letter, and in 2014 Able granted Elaref CFRA leave, the court continued. “The SEIU had no say in this.” While Elaref was on leave, Miranda learned that Elaref had been hired by Able and viewed the hiring as backdoor because Able had agreed to retain janitors through the SEIU union hall. Miranda “argued” that Able should replace Elaref with another janitor. Able disagreed until an Able vice president informed Elaref's supervisor that the union would win any grievance of the dispute. When Elaref returned from leave, Able told him to go to the union hiring hall to get work. At the time, the court found, work “was plentiful due to San Francisco's commercial construction boom.” Relying on his “ ‘permanency' letter, ” Elaref sued.
Turning to the legal issue, the court found SEIU was not Elaref's employer. It reasoned that there is no authority for permitting an employee to sue his labor union as an employer. Further, the CFRA should be applied consistently with the Family Medical Leave Act (Richey v. AutoNation, Inc. (2015) 60 Cal.4th 909, 919), and federal cases construing that act establish that a labor union does not employ its members. (Citing e.g., Scamihorn v. General Truck Drivers (9th Cir. 2002) 282 F.3d 1078, 1081, fn. 2.) The court also rejected Elaref's theory that the “ ‘economic realities' ” of Able's unionized workforce make Able and SEIU joint employers. (See Cal. Code Regs., tit. 2, § 11087, subd. (d)(3).) Concluding that SEIU is not a proper defendant, the court granted judgment in favor of SEIU and designated SEIU as the prevailing party. On July 22, 2019, the court entered judgment dismissing SEIU from the action.
DISCUSSION
Elaref contends the denial of his motion to amend his complaint to conform to proof was reversible error, as was the subsequent denial of his motion to reconsider the denial of his motion to amend. We review the challenged rulings for abuse of discretion. (Branick v. Downey Savings & Loan Assn. (2006) 39 Cal.4th 235, 242 [leave to amend “ ‘entrusted to the sound discretion of the trial court' ”]; Farmers Ins. Exchange v. Superior Court (2013) 218 Cal.App.4th 96, 106 [denial of motion for reconsideration reviewed for abuse of discretion].)
“A trial court may allow the amendment of a pleading at any time up to and including trial. (Code Civ. Proc., §§ 576, 473, subd. (a)(1).)” (Singh v. Southland Stone, U.S.A., Inc. (2010) 186 Cal.App.4th 338, 354.) A strong policy favors liberal allowance of amendment to pleadings, but the decision rests in the sound discretion of the trial court and will not be disturbed on appeal absent clear abuse. (Consolidated World Investments, Inc. v. Lido Preferred Ltd. (1992) 9 Cal.App.4th 373, 383.)
When a motion to amend is made at trial, courts often base their ruling on a consideration of two factors: “ ‘(1) whether facts or legal theories are being changed and (2) whether the opposing party will be prejudiced by the proposed amendment.' ” (IIG Wireless, Inc. v. Yi. (2018) 22 Cal.App.5th 630, 653 (IIG Wireless).) Leave to amend at trial is properly denied in any event when undisputed facts show that the proposed amendment would not establish a basis for liability as a matter of law. (Ibid.; Edwards v. Superior Court (2001) 93 Cal.App.4th 172, 180.)
Here, at the outset of trial, Elaref sought leave to amend his complaint to allege that (1) SEIU was Elaref's co-employer, and (2) SEIU aided and abetted Able's violation of the CFRA. Elaref does not dispute that the first part of this motion was properly denied because the complaint already alleged employer liability against SEIU. Indeed, the summary adjudication order is premised on Elaref's pleaded theory that Able and SEIU committed distinct violations of Elaref's employment rights when they refused to restore him to the day-porter position. The dispute on appeal is whether the trial court erred by denying the second part of Elaref's motion to amend, seeking to add an allegation that SEIU aided and abetted Able's violation of the CFRA. Elaref argued this amendment would not prejudice SEIU because the facts showing SEIU's aider and abettor liability were already alleged in the complaint and all Elaref was doing was clarifying his theory of liability. The trial court did not abuse its discretion by rejecting this argument.
Allowing Elaref to allege aider and abettor liability for the first time at trial would have fundamentally altered Elaref's case to SEIU's prejudice because it would have eliminated SEIU's complete defense that it was not Elaref's employer. The CFRA is part of the FEHA, which prohibits only employers from engaging in improper discrimination. (Vernon v. State of California (2004) 116 Cal.App.4th 114, 123.) Thus, when SEIU asserted it was not liable for violating the CFRA because it was not Elaref's employer, this was a complete defense.
FEHA also prohibits aiding and abetting a discriminatory employment practice. (§ 12940, subd. (i).) Under this provision, a non-employer can be held vicariously liable for an employer's FEHA violation. (See e.g., Alch v. Superior Court (2004) 122 Cal.App.4th 339, 389-391 (Alch).) But we reject Elaref's suggestion that SEIU had sufficient notice that it could be held liable for aiding and abetting Able's alleged violation of the CFRA. Importantly, by the time Elaref moved to amend his complaint, the court had already dismissed claims against Able for FEHA discrimination and CFRA retaliation, after making express findings that Able's employment decision was not pretense for race discrimination or retaliation for Elaref exercising his right to take family leave. Thus, the only remaining claim against Able was for CFRA interference.
The elements of a CFRA interference claim are: “ ‘(1) the employee's entitlement to CFRA leave rights; and (2) the employer's interference with or denial of those rights.' ” (Moore v. Regents of University of California (2016) 248 Cal.App.4th 216, 250; see also Avila v. Continental Airlines, Inc. (2008) 165 Cal.App.4th 1237, 1260-1261 [employer is charged with knowledge that CFRA leave is protected].) Since this type of statutory violation does not require wrongful intent, Elaref could still prove that Able is liable for refusing to allow Elaref to return to the specific job he had prior to his leave, but he did not allege any facts to support a theory that SEIU was an aider and abettor of this remaining CFRA claim against Able.
Because the FEHA does not define “aiding and abetting, ” California courts apply the common law definition. (Fiol v. Doellstedt (1996) 50 Cal.App.4th 1318, 1325.) Under California law, “ ‘ “[l]iability may... be imposed on one who aids and abets the commission of an intentional tort if the person... knows the other's conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other to so act.”' ” (IIG Wireless, supra, 22 Cal.App.5th at pp. 653-654; see also Berg & Berg Enterprises, LLC v. Sherwood Partners, Inc. (2005) 131 Cal.App.4th 802, 823, fn. 10 (Berg).)
Liability may also arise in certain circumstances where the conduct of the aider and abettor “ ‘ “separately considered, constitutes a breach of duty to the third person”' ” (IIG Wireless, supra, 22 Cal.App.5th at pp. 653-654), but the trial court found SEIU was not Elaref's employer and Elaref does not argue this theory of aiding and abetting.
Here, Elaref's complaint does not allege facts to prove that SEIU aided and abetted Able's violation of the CFRA. Elaref did not allege that SEIU knew Able had granted him CFRA leave or that SEIU knew Able had violated the CFRA. Nor did Elaref allege that SEIU made a “ ‘conscious decision' ” to participate in Able's tortious activity “ ‘for the purpose of assisting' ” Able in its commission of a “ ‘wrongful act.' ” (Berg, supra, 131 Cal.App.4th at p. 823, fn. 10; compare Alch, supra, 122 Cal.App.4th at pp. 389-390 [causes of action for aiding and abetting violations of FEHA withstood demurrer when plaintiffs alleged facts to prove that defendants knew about employers' systematic policy of age discrimination and took concrete steps to encourage it].)
The factual allegations in Elaref's complaint that were directed against SEIU pertained almost exclusively to alleged discrimination based on national origin. Even if we were to assume that these allegations may have been sufficient to support an un-pleaded aider and abettor theory, the trial court dismissed on summary adjudication all of the allegations that Able or SEIU had engaged in discrimination based on national origin. Moreover, Elaref's claim for CFRA retaliation against Able was also dismissed, which left only the cause of action alleging that the company interfered with Elaref's rights under the CFRA.
Thus, under the circumstances presented here, we reject Elaref's primary claim of error that the facts establishing SEIU's aider and abettor liability had already been alleged in his original complaint. Taking a different tack, Elaref contends that a late amendment adding his new theory of liability was justified because he had no basis for alleging aider and abettor liability against SEIU until the relevant facts were disclosed at trial. Since Elaref made his motion to amend on the eve of trial, we consider this alternative argument only as it relates to Able's reconsideration motion seeking to amend his complaint to conform to proof.
Able contends that three new material facts were disclosed at trial. First, Miranda admitted that when she objected to Elaref returning to the day-porter position, Garcia had not actually been laid off but was only going to be laid off. Second, Sivori disclosed that Garcia was not ever going to be laid off. And third, McGee testified that only a laid-off employee can exercise bumping rights under the CBA. Able posits that these alleged revelations unearthed SEIU's liability for aiding and abetting because they proved that Miranda lied about Garcia's bumping right during the summary adjudication proceeding and used the CBA as a cover so that SEIU could assist Able in violating the CFRA.
Elaref mischaracterizes the cited trial testimony as new facts. First, the summary judgment evidence we have already summarized above shows that there was never a dispute that Garcia was working for Able and had not been laid off when Elaref was told he could not return to the day-porter position. Second, Sivori's trial testimony does not establish that Garcia would not have been laid off if Elaref had been given the day-porter job. Sivori testified that he did not have another position for Garcia, but he felt “sure” that another Able supervisor could “find one” for her. Third, McGee's alleged admission about what the CBA bumping provisions say and mean was not a new fact. The parties always disagreed about how to interpret and apply the CBA. At phase I of trial, the court permitted Elaref to elicit testimony about this tangentially relevant issue, but the matter was not actually litigated or decided. By the same token, the trial evidence does not prove that SEIU was an aider and abettor. Even if the evidence had established that Miranda misinterpreted the CBA (a conclusion we do not reach), this would not prove that SEIU knowingly and deliberately assisted Able intentionally to violate the CFRA.
In his reply brief, Elaref posits that the fact that Able did not discriminate or retaliate against him should not insulate SEIU from aider and abettor liability. Elaref fails to support this notion with pertinent authority. FEHA's aider and abettor provision has been interpreted as requiring the “ ‘concerted wrongful action' ” of two “separate” actors, “ ‘one helping the other' ” to violate the statute. (Smith v. BP Lubricants USA Inc. (2021) 64 Cal.App.5th 138, 146.) And as an alleged aider and abettor, SEIU was not the primary tortfeasor. To the extent Able did not discriminate or retaliate in violation of the CFRA, SEIU could not have aided and abetted such a violation. In this sense, Elaref's contention that the trial court permitted the primary tortfeasor to escape liability is demonstrably false. Whether the challenged employment decision interfered with Elaref's CFRA rights is an unresolved issue that he may pursue against Able, who was his employer.
Regardless how Elaref articulates his theory, he is now attempting to hold SEIU vicariously liable for Able's employment decision rather than for a decision that SEIU made. This is a new theory that was not pled in the complaint and Elaref failed to justify waiting until the first day of trial to raise it. Nor are we persuaded by Elaref's alternative claim that new facts disclosed at trial entitled him to amend his pleading to conform to proof. Under these circumstances, Elaref fails to establish that the trial court's ruling was irrational or arbitrary.
DISPOSITION
The judgment is affirmed. SEIU is awarded costs on appeal.
WE CONCUR: FUJISAKI, J., PETROU, J.