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Mogilefsky v. Superior Court

Mogilefsky v. Superior Court

Court of Appeal of California, Second Appellate District, Division Four

December 10, 1993, Filed

No. B072438.

Opinion

 [*1411]  [**116]   The issue presented in this writ proceeding is whether same gender sexual harassment may be the basis of a cause of action for sexual harassment in violation of the Fair Employment and Housing Act. ( Gov. Code, § 12940, subd. (h).) After review, we answer this question in the affirmative and issue a writ of mandate directing respondent superior court to vacate its orders sustaining, without leave to amend, demurrers to a cause of action alleging such behavior.

 [*1412]  FACTS

Petitioner Wayne Mogilefsky alleged in his first amended complaint that he was subjected to sexual [***2]  harassment and discrimination by Michael Levy, his supervisor, during the course of his employment as creative editor  [**117]  for real parties in interest Silver Pictures, Warner Brothers, and Joel Silver. 1 

Specifically, petitioner alleged that on two occasions Levy, the president of Silver Pictures, demanded petitioner stay overnight in Levy's hotel suite. On the first occasion, Levy allegedly informed petitioner [***3]  that he would receive more money if he cooperated, ordered petitioner to play a pornographic film on the VCR, made lewd and lascivious comments about the film, and asked petitioner how much he would charge to perform acts similar to those depicted in the film. The next morning Levy allegedly falsely implied to others that petitioner engaged in anal sex with him. On the second occasion, Levy allegedly referred to petitioner in a profane and degrading manner and inquired repeatedly into petitioner's private life, including questions regarding his prior relationships. Very early the next morning, Levy allegedly woke petitioner, requested him to take his clothes off, and told petitioner that he wanted to sleep next to him.

Petitioner alleged that he went to Levy's hotel suite the second time only after being informed by others that he had no choice in the matter, that attendance at the suite was mandatory, that another male employee had been fired for not going to Levy's suite when ordered to do so, and that petitioner should consider the consequences before refusing.

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20 Cal. App. 4th 1409 *; 26 Cal. Rptr. 2d 116 **; 1993 Cal. App. LEXIS 1233 ***; 93 Daily Journal DAR 15679; 67 Fair Empl. Prac. Cas. (BNA) 127; 93 Cal. Daily Op. Service 9165; 63 Empl. Prac. Dec. (CCH) P42,746

WAYNE MOGILEFSKY, Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; SILVER PICTURES et al., Real Parties in Interest.

Prior History:   [***1]  Superior Court of Los Angeles County, No. SC 016436, Lawrence C. Waddington, Judge.

CORE TERMS

sexual, harassment, sexual harassment, sex, cause of action, subjected, amended complaint, male, real party in interest, male employee, allegations, gender, hostile environment, title vii, advances, violation of subdivision, reconsideration motion, trial court, conditions, demurrers, workplace, quid, quo

Business & Corporate Compliance, Discrimination, Labor & Employment Law, Discrimination, Public Health & Welfare Law, Mental Health Services, Commitment, Discharge & Release of Adults, Criminal Law & Procedure, Crimes Against Persons, Coercion & Harassment, Elements, Labor & Employment Law, Sexual Harassment, Scope & Definitions, General Overview, Harassment, Quid Pro Quo, Federal & State Interrelationships, Sexual Harassment, Hostile Work Environment, Statute of Limitations, Same-Sex Harassment, Civil Procedure, Responses, Defenses, Demurrers & Objections, Demurrers, Judgments, Relief From Judgments, Altering & Amending Judgments, Pleadings, Amendment of Pleadings, Leave of Court