Smith v. BP Lubricants USA, Inc., 64 Cal. App. 5th 138 (2021)

Robert Smith’s employer, Jiffy Lube, held a presentation for its employees to learn about a new Castrol product.  Castrol employee Gus Pumarol made several comments during the presentation that Smith considered to be racist and offensive.  Smith sued Castrol (a dba of BP) and Pumarol for racial harassment under the Fair Employment and Housing Act and discrimination under the Unruh Act; Smith also sued Pumarol for intentional infliction of emotional distress (“IIED”).  The trial court sustained BP and Pumarol’s demurrer without leave to amend.

The Court of Appeal reversed the dismissal of the IIED and Unruh Act claims, but affirmed dismissal of the FEHA claim on the ground that there were no allegations that BP and Pumarol had aided and abetted Smith’s employer (Jiffy Lube) in harassing him.  As for the other claims, the Court held that a reasonable jury could find that Pumarol’s comments were sufficiently extreme and outrageous to have resulted in an infliction of emotional distress upon Smith.  The Court reversed dismissal of the Unruh Act claim on the ground that a business establishment (Castrol) could face liability under the Act for its racially harassing conduct directed toward a customer.  See also Moreno v. Bassi, 65 Cal. App. 5th 244 (2021) (plaintiff who lost all FEHA claims and prevailed on a minimum wage claim in the amount of $16 was entitled to reasonable attorney’s fees pursuant to Cal. Lab. Code § 1194 rather than Cal. Code Civ. Proc. § 1031; cost recovery is limited to costs unrelated to the unsuccessful FEHA claims).