Judge: Armen Tamzarian, Case: 20STCV25184, Date: 2023-03-24 Tentative Ruling
Case Number: 20STCV25184 Hearing Date: March 24, 2023 Dept: 52
Defendants
Keosian Law, LLP, Harout Keosian, and Melkon Melkonian’s Motion for Summary
Judgment or Summary Adjudication
Defendants
Keosian Law, LLP, Harout Keosian, and Melkon Melkonian move for summary
judgment or, in the alternative, summary adjudication of all causes of action
and of plaintiff Virginia Hazarian’s claim for punitive damages.
Evidentiary
Objections
Plaintiff makes 33 objections to
defendants’ evidence. Objection Nos. 3,
10, 16, 18, 19, 22, 23, and 27 are sustained. Objection Nos. 1, 2, 4-9, 11-15, 17, 20, 21,
24-26, and 28-33 are overruled.
Defendants makes 21 objections
(numbered 3-23) to plaintiff’s evidence.
Objection Nos. 8, 18, 21, and 22 are sustained. Objection Nos. 3-7, 9-17, 19, 20, and 23 are overruled.
Summary
Judgment or Adjudication
Courts
grant summary judgment or adjudication where no triable issues of fact exist
and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c); Villa v. McFerren (1995) 35 Cal.App.4th
733, 741.) A defendant moving for summary judgment must show “that one or more
elements of the cause of action… cannot be established, or that there is a
complete defense to the cause of action.”
(Code Civ. Proc., § 437c, subd. (p)(2).)
Once the defendant does so, the burden shifts to the plaintiff to show a
triable issue of at least one material fact.
(Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826,
849.) Courts “liberally construe
the evidence in support of the party opposing summary judgment and resolve
doubts concerning the evidence in favor of that party.” (Dore
v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)
Keosian
Law, LLP
Defendant Keosian Law, LLP argues
plaintiff cannot prove any cause of action against it because it never employed
her. There is no legitimate dispute over
the fact that Keosian Law, LLP was formed in January 17, 2019—three months
after Keosian Berberian, LLP terminated plaintiff.
Plaintiff
contends Keosian Law, LLP is liable as Keosian Berberian’s successor entity. California recognizes several related equitable
theories for holding one entity liable for another’s conduct, including “the ‘alter
ego’ or ‘single enterprise’ doctrine” (Tran v. Farmers Group, Inc.
(2002) 104 Cal.App.4th 1202, 1218) and “the ‘mere continuation’ theory of
successor liability.” (Cleveland v.
Johnson (2012) 209 Cal.App.4th 1315, 1329; accord Phillips, Spallas
& Angstadt, LLP v. Fotouhi (2011) 197 Cal.App.4th 1132, 1140.)
In
labor and employment cases, a successor entity may be liable when there is “a
relationship between the successor and predecessor companies sufficient to
warrant treating the latter as an extension of the former,” such as “where the
new employer is ‘merely a disguised continuance of the old employer,’ ” or “where the transfer is simply a
means of evading” liability. (Superior
Care Facilities v. Workers' Comp. Appeals Bd. (1994) 27 Cal.App.4th 1015,
1027.) “ ‘Courts that have considered
the successorship question in a labor context have found a multiplicity of
factors to be relevant. These include:
1) whether the successor company had notice of the charge, 2) the ability of
the predecessor to provide relief, 3) whether there has been a substantial
continuity of business operations, 4) whether the new employer uses the same
plant, 5) whether he uses the same or substantially the same work force, 6)
whether he uses the same or substantially the same supervisory personnel, 7) whether
the same jobs exist under substantially the same working conditions, 8) whether
he uses the same machinery, equipment and methods of production and 9) whether
he produces the same product.’ ” (Id at pp. 1027-1028.,
quoting EEOC v. MacMillan Bloedel Containers, Inc., supra, 503 F.2d
1086, 1094.)
Plaintiff
establishes triable issues of material fact on whether Keosian Law, LLP is
liable as a successor entity to Keosian Berberian, LLP. She presents enough evidence to permit a
factfinder to conclude that Keosian Law substantially continued Keosian
Berberian’s business, uses the same or substantially the same office,
workforce, and supervisors, has the same jobs under equivalent working conditions,
and provides the same services.
At
deposition, Melkon Melkonian testified that Keosian Berberian “stopped
operating at the end of 2018.” (Opp. Ex.
2, Melkonian Depo., 49:5.) Keosian Law
is at the same address and uses much same equipment and furniture as Keosian
Berberian. (Id., 49:8-20.) Keosian Law is “still using the Keosian
Berberian Employee Handbook” with a new title.
(Id., 73:14-21.) Three employees
who worked for both firms testified they did not have to apply for their jobs
at Keosian Law, LLP. (Opp. Ex. 7,
Ounjian Depo., 29:17-22; Ex. 9, Parlakian Depo., 17:!4-15; Ex. 11, Hairabedian
Depo., 38:13-16.) As Talar Ounjian testified, “Q. Did anything
change when you moved to Keosian Law? A. Our logo changed, the name on the wall
changed, we got new e-mails, our letterheads, that was pretty much it.” (Ounjian Depo., 29:23-25.)
Plaintiff
also presents evidence sufficient to create a triable issue of fact on whether
Keosian Berberian can provide adequate relief to her. Harout Keosian testified Keosian Berberian is
“inactive” and “[d]oesn’t operate.”
(Opp. Ex. 3, Keosian Depo., 17:16-17.)
He testified that the firm “wound down” and he did not “think there was
anything left” and that, aside from this action, “there’s no purpose to it, as
far as why is it still active.” (Id.,
17:25-18:4.) On this record, one could
conclude Keosian Berberian cannot provide adequate relief and it would be
inequitable not to hold Keosian Law, LLP liable as a mere continuation of
Keosian Berberian.
First
Cause of Action: Discrimination
Triable issues of material fact
preclude summary adjudication of this cause of action. For employment discrimination claims,
“California follows the burden shifting analysis of McDonnell Douglas
Corp. v. Green (1973) 411 U.S. 792 … to determine whether there are
triable issues of fact for resolution by a jury.” (Loggins v. Kaiser Permanente Internat. (2007)
151 Cal.App.4th 1102, 1109 (Loggins).)
First, “[i]f the employee successfully establishes [the] elements and
thereby shows a prima facie case exists, the burden shifts to the employer to
provide evidence that there was a legitimate, [nondiscriminatory or] nonretaliatory
reason for the adverse employment action. If the employer produces
evidence showing a legitimate reason for the adverse employment action, the
presumption of retaliation drops out of the picture, and the burden shifts back
to the employee to provide substantial responsive evidence that the employer’s
proffered reasons were untrue or pretextual.”
(Ibid., citations and internal quotes omitted.)
Plaintiff
establishes a prima facie case of sex discrimination. “Generally, the plaintiff must provide
evidence that (1) [s]he was a member of a protected class, (2) [s]he was
qualified for the position [s]he sought or was performing competently in the
position [s]he held, (3) [s]he suffered an adverse employment action, such as
termination, demotion, or denial of an available job, and (4) some other
circumstance suggests discriminatory motive.”
(Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 355 (Guz).)
Plaintiff
presents adequate evidence for her initial burden on the first three
elements. It is undisputed that
plaintiff is a woman. Her evidence also
suffices to support a finding that she had “gastrointestinal issues” and injuries
to her neck and shoulders that constituted a physical disability under the Fair
Employment and Housing Act. She further
presents evidence she performed her duties competently. For example, Harout Keosian testified that
“nothing regarding [plaintiff’s] performance had any role in [the] decision to
terminate her.” (Keosian Depo., 69:6-19.) It is undisputed that plaintiff was
terminated.
Plaintiff presents
prima facie evidence suggesting the motive for her termination was sex or
gender discrimination. She testified
that Harout Keosian told her, “ ‘ I’m not telling you to become a raging bitch,
but I need you to be more aggressive.’ ”
(Hazarian Depo., 91:7-18.) She
further testified “it would be my expectation …to make coffee in the office.” (Id., 129:7-8.) When the attorneys “gathered in the
conference room … they would ask [her] to go and make some Armenian coffee,”
but not the male associate attorney, Chris Arzoomanian. (Id., 129:2-10.) Keosian or Melkon Melkonian “would tell” her “that people
prefer hearing a female voice on the other end and that I have to answer phones
if they -- if they ring.” (Id.,
132:25-133:4.) Plaintiff also testified
that she was given “a tandem outdoor parking spot” (id., 48:5-6), and
when “an indoor spot opened, a male law clerk, Nick Galadzhyan, received the
newly available indoor parking spot.”
(Hazarian Decl., ¶ 11.) These
circumstances suggest a discriminatory animus against women and therefore a
discriminatory motive for terminating plaintiff.
Plaintiff also presents prima facie evidence of disability discrimination. At her deposition, she testified that when
Keosian Berberian, LLP split up, Melkonian told her “in light of my medical
issues, you know, were currently ongoing and that I reported, they decided to
go with me when they were trying to make that decision” about whom to lay
off. (Hazarian Depo., 63:17-64:11.)
Defendants meet
their burden of showing a legitimate reason for terminating plaintiff. After
a plaintiff meets her initial burden, “the burden shifts to the employer to
rebut the presumption by producing admissible evidence, sufficient to ‘raise a
genuine issue of fact’ and to ‘justify a judgment for the employer,’ that
its action was taken for a legitimate, nondiscriminatory reason.” (Guz,
supra, 24 Cal.4th at pp. 355-356, alterations omitted.)
“If the employer sustains this burden, the presumption of
discrimination disappears.” (Id.
at p. 356.)
Defendants
present evidence plaintiff was terminated for a legitimate reason. Keosian Berberian, LLP laid off three
employees to downsize and reduce payroll when the firm split up. (Keosian Decl., ¶¶ 6-7, 10; Melkonian Decl.,
¶¶ 7-8, 11-12.) At deposition, Richard
Berberian testified that the firm’s partners decided “it was time to let go of
… an associate,” and “she was the most expensive one at that time.” (Berberian Depo., 118:11-14.) Defendants therefore dispel the presumption
of discrimination.
Finally,
plaintiff meets her burden of showing sufficient evidence to support an
inference of discrimination. In this
stage, “[t]he central issue is … whether the evidence as a whole supports a
reasoned inference that the challenged action was the product of discriminatory
or retaliatory animus.” (Mamou v. Trendwest Resorts, Inc. (2008) 165 Cal.App.4th 686, 715.) “[C]iting a legitimate reason
for the challenged action will entitle the employer to summary judgment only
when the employee’s showing, while sufficient to invoke the presumption,
is too weak to sustain a reasoned inference in the employee’s
favor.” (Ibid.)
Though
downsizing is a legitimate reason to terminate employees, plaintiff need not
prove that discrimination was the sole reason for terminating her. She need only prove it was a substantial
motivating reason. The evidence of
demeaning comments and giving her menial job duties discussed above permits an
inference that defendants chose to downsize her—as opposed to a male employee
or employee without disabilities—because of her sex or disability. Plaintiff presents evidence that in the
process of splitting up Keosian Berberian, the partners planned to lay off
three women: plaintiff, attorney Ani Boghozian (Melkonian Depo., 14:17-15:3),
and office manager Anna Tilbyan (id., 14:9-14). On this record, a reasonable factfinder could
conclude sex and disability discrimination were substantial motivating reasons
for terminating plaintiff.
Second
Cause of Action: Harassment
Triable issues of fact preclude summary
adjudication of this cause of action. For
a hostile work environment claim, the plaintiff must show offensive conduct “or
comments that were severe enough or sufficiently pervasive to alter the
conditions of her employment and create a hostile or abusive work
environment. [Citations.] Although annoying or ‘merely offensive’
comments in the workplace are not actionable, conduct that is severe or pervasive
enough to create an objectively hostile or abusive work environment is
unlawful.” (Lyle v. Warner Brothers
Television Productions (2006) 38 Cal.4th 264, 283.) “[H]arassment focuses on situations in which the social environment of the workplace becomes intolerable because the harassment
(whether verbal, physical, or visual) communicates an offensive message to the
harassed employee.” (Roby v. McKesson Corp. (2009)
47 Cal.4th 686, 706.) “Harassment cases are rarely appropriate for
disposition on summary judgment.” (Gov.
Code, § 12923(e); accord Nazir v. United Airlines, Inc. (2009) 178
Cal.App.4th 243, 286.)
Plaintiff’s
evidence of demeaning comments, such as asking her to be “more assertive” but
not a “raging bitch,” and giving her menial tasks such as making coffee and
answering the phone, permits an inference that defendants communicated an
offensive message about women being less capable or worthy than men. Moreover, plaintiff testified that Harout
Keosian subjected her to “put downs, demeaning me, [and] berating me.” (Hazarian Depo., 69:20-21.) She further testified that the way Keosian
and Melkonian treated her sent her the message “[t]hat if I was going to be
successful, I needed to become aggressive and exhibit more, I guess, male-like
qualities.” (Id.,
118:18-20.) She stated the comments
about being more aggressive were “constant.”
(Id., 119:18-20.) At “the
very first hearing they sent [her] to,” Zareh Keosian told her, “ ‘You do
realize you’re going to have to actually speak in front of the judge.’ ” (Id., 118:20-23.)
Plaintiff also testified
at deposition that Melkon Melkonian subjected her to “overly critical and harsh
put downs for ultimately trivial things,” such as a typo that originated in a template
document he wrote. (Hazarian Depo.,
112:7-23.) She testified the yelling
“increased in frequency” and “really amped up in July and then through the date
of my termination.” (Id.,
113:3-5.) She was “the only person in
the office he yelled at,” and “Chris was never spoken to that way.” (Id., 113:6-9.)
The court cannot conclude
that, as a matter of law, plaintiff’s evidence does not amount to sexual
harassment severe or pervasive enough to create a hostile working environment.
Third
Cause of Action: Retaliation
Triable
issues of material fact preclude summary adjudication of this cause of
action. For retaliation, “a plaintiff
must show (1) he or she engaged in a ‘protected activity,’ (2) the employer
subjected the employee to an adverse employment action, and (3) a causal link
existed between the protected activity and the employer’s action.” (Yanowitz v. L'Oreal USA, Inc. (2005)
36 Cal.4th 1028, 1042.) “The causal link
may be established by an inference derived from circumstantial evidence, such
as the employer’s knowledge that the [employee] engaged in protected activities
and the proximity in time between the protected action and allegedly
retaliatory employment decision.” (Morgan
v. Regents of University of Cal. (2000) 88 Cal.App.4th 52, 69, internal
quotes omitted.) The same
burden-shifting framework for discrimination claims applies to retaliation
claims. (Loggins, supra, 151
Cal.App.4th at p. 1109.)
Plaintiff
presents sufficient evidence for a prima facie case. She testified that in May 2018, she complained
to Melkon Melkonian “[t]hat I was not being given the same work in line with
Chris,” the male associate. (Hazarian
Depo., 108:5-16.) She complained she
“was not being given the opportunity and experience and training necessary as a
first-year attorney.” (Ibid.) Plaintiff was terminated in October 2018. The close timing of her complaint and her
termination permits an inference of retaliation.
For
the same reasons as the first cause of action, plaintiff presents sufficient
evidence under the burden-shifting framework for FEHA claims. Despite defendants’ stated reason for
terminating her, plaintiff’s evidence is strong enough to withstand summary
adjudication. A trier of fact could
infer that her protected activity was a substantial motivating reason for terminating
her.
Fourth
Cause of Action: Failure to Prevent Discrimination, Harassment, and Retaliation
Triable issues of fact preclude
summary adjudication of this cause of action.
An employer violates FEHA if it “fail[s] to take all reasonable steps
necessary to prevent discrimination and harassment from occurring.” (Gov. Code, § 12940(k).) Defendants rely on the rule that this cause
of action requires a valid cause of action for the underlying discrimination or
harassment. (Trujillo v. North County
Transit Dist. (1998) 63 Cal.App.4th 280, 289.) Plaintiff establishes triable issues of fact
on her first through third causes of action.
Defendants therefore cannot succeed on summary adjudication of this
cause of action.
Fifth
Cause of Action: Failure to Provide Reasonable Accommodation
Defendants are not entitled to summary
adjudication of this cause of action. “Under
the FEHA, an employer’s ‘fail[ure] to make reasonable accommodation for the
known physical or mental disability of an applicant or employee’ is an unlawful
employment practice.” (Swanson v.
Morongo Unified School Dist. (2014) 232 Cal.App.4th 954, 968 (Swanson).) “A reasonable accommodation is any ‘ “modification
or adjustment to the workplace that enables the employee to perform the
essential functions of the job held or desired.” ’ ” (Id. at pp. 968-969.) Reasonable accommodations may include “[j]ob
restructuring, part-time or modified work schedules, … adjustment or
modifications of examinations, training materials or policies, … and other
similar accommodations for individuals with disabilities.” (Gov. Code, § 12926(p)(2).)
At her deposition, plaintiff testified
that in September 2018, she requested reasonable accommodation for “GI issues”
and specifically asked “[t]o work from home.”
(Hazarian Depo., 80:6-18.) She further testified defendants did “[n]ot
really” allow her to do so. (Id.,
80:23-25.)
Defendants contend that her
requested accommodation of working from home was not reasonable. In determining whether an accommodation is
reasonable, “[e]ach inquiry is fact specific and requires a
case-by-case determination.” (Auburn
Woods I Homeowners Assn. v. Fair Employment & Housing Com. (2004)
121 Cal.App.4th 1578, 1593; accord McCullah v. Southern California Gas Co. (2000)
82 Cal.App.4th 495, 500.) Plaintiff
presents evidence that she and at least one other attorney were sometimes permitted
to work from home. (Hazarian Depo.,
78:14-25; Opp. Ex. 8, Boghozian Depo., 27:13-16.) On this record, a factfinder could conclude
that permitting plaintiff to work from home more frequently was reasonable.
Sixth
Cause of Action: Failure to Engage in Interactive
Process
Triable
issues of material fact preclude summary adjudication of this cause of
action. FEHA requires employers “to engage in a timely,
good faith, interactive process with the employee … to determine effective
reasonable accommodations, if any, in response to a request for reasonable
accommodation” for “a known physical or mental disability or known medical
condition.” (Gov. Code, §
12940(n).) “[A]n
employer’s failure to properly engage in the process is separate from the
failure to reasonably accommodate an employee’s disability and gives rise to an
independent cause of action.” (Swanson,
supra, 232 Cal.App.4th at p. 971.) “
‘Each party must participate in good faith, undertake reasonable efforts to
communicate its concerns, and make available to the other information which is
available, or more accessible, to one party. Liability hinges on the objective
circumstances surrounding the parties’ breakdown in communication, and
responsibility for the breakdown lies with the party who fails to participate
in good faith.’ ” (Scotch v. Art
Institute of California (2009) 173 Cal.App.4th 986, 1014.)
Plaintiff
testified at deposition that she specifically requested to work from home as a
reasonable accommodation, but defendants did not permit it. (Hazarian Depo., 80:13-25.) She did not recall any response to her email
asking to work from home. (Id.,
80:19-22.) A trier of fact could find
that defendants did not make an adequate effort to determine if permitting her
to work from home would be reasonable.
Moreover,
plaintiff testified that she would “get such a negative response” and comments
like “you don’t have a nine to five job” when she had medical appointments in
the evening after 6:00 p.m. (Id.,
82:21-83:11.) When she went to
appointments during regular business hours, she would “get comments about my
absence” and “that I need to be more present.”
(Id., 86:1-6.) Though
defendants permitted these absences, they acted “[l]ike they were doing me this
enormous favor.” (Id.,
86:11-12.) “They made it sound like” her
medical appointments “should be done on my time and not on theirs.” (Id., 88:19-20.) On this record, a factfinder could conclude
that defendants did not engage in the interactive process in good faith to identify
reasonable accommodations for plaintiff’s disability.
Seventh
Cause of Action: Declaratory Judgment
Defendants do not meet their burden
for summary adjudication of this cause of action. As with the fourth cause of action,
defendants contend this cause of action fails because it relies on the
underlying claims. As discussed above,
defendants are not entitled to summary adjudication of the underlying claims.
Eighth
Cause of Action: Wrongful Termination
For the same reasons as the first
and third causes of action, triable issues of material fact preclude summary
adjudication of plaintiff’s eighth cause of action.
Ninth
Cause of Action: Whistleblower Retaliation
Triable issues of material fact preclude summary adjudication of
this cause of action. Labor Code section
1102.5, subdivision (a) provides that an employer “shall not retaliate against
an employee for” reporting or complaining about “violation of state or federal
statute, or a violation of or noncompliance with a local, state, or federal rule
or regulation.”
Plaintiff
bears a lesser burden on this cause of action than on her FEHA claims. “[O]nce it has been demonstrated by a
preponderance of the evidence that an activity proscribed by Section 1102.5 was
a contributing factor in” the employee’s termination, “the employer shall have
the burden of proof to demonstrate by clear and convincing evidence that the
alleged action would have occurred for legitimate, independent reasons even if
the employee had not engaged in activities protected by Section 1102.5.” (Lab. Code, § 1102.6.) “Even if the employer had a genuine,
nonretaliatory reason for its adverse action, the plaintiff still carries the
burden assigned by statute if it is shown that the employer also had at least
one retaliatory reason that was a contributing factor in the action.” (Lawson v. PPG Architectural Finishes,
Inc. (2022) 12 Cal.5th 703, 716.)
Plaintiff
establishes triable issues of fact on this cause of action for the same reasons
as her third cause of action for retaliation under FEHA.
Tenth
Cause of Action: Failure to Reimburse Business Expenses
Defendants
do not meet their initial burden for summary adjudication of this cause of
action. “An employer shall indemnify his or her employee for all necessary
expenditures or losses incurred by the employee in direct consequence of the
discharge of his or her duties, or of his or her obedience to the directions of
the employer.” (Lab. Code, §
2802(a).) The plaintiff must prove: “(1)
the employee made expenditures or incurred losses; (2) the expenditures or
losses were incurred in direct consequence of the employee's discharge of his
or her duties, or obedience to the directions of the employer; and (3) the
expenditures or losses were necessary.”
(Cassady v. Morgan, Lewis & Bockius LLP (2006) 145
Cal.App.4th 220, 230.)
For this cause of action, defendants’ separate
statement of undisputed facts asserts only, “Plaintiff does not remember the
amount she is owed and has no documents supporting her reimbursement request
other than [an] email, which she does not have access to.” (UMF No. 22.)
Assuming defendants met their initial burden, plaintiff establishes
triable issues of fact. At her
deposition, she testified she “sent an email” to defendants “that would have
covered the final amount for stuff I hadn’t been reimbursed” before her
termination. (Hazarian Depo.,
146:14-18.) She “never got a
response.” (Id., 146:18.)
In her declaration in support of her opposition, she describes her
business expenses in detail. (Opp. Ex.
6, Hazarian Decl., ¶¶ 16-20.) She states
she sent defendants an expense report for $233.57. (Id., ¶ 27; Opp. Ex. 19.)
Punitive
Damages
Defendants
fail to show they are entitled to summary adjudication on plaintiffs’ claim for
punitive damages. On summary
adjudication, the plaintiff must present sufficient evidence for a triable
issue under “the higher evidentiary standard” of “establishing malice,
oppression or fraud by clear and convincing evidence.” (Basich v. Allstate Ins. Co. (2001)
87 Cal.App.4th 1112, 1121.) “[W]illfully
and consciously retaliat[ing] against” employees for exercising their rights
can constitute malicious or oppressive conduct sufficient for punitive
damages. (Colucci v. T-Mobile USA,
Inc. (2020) 48 Cal.App.5th 442, 455.)
The
same evidence for plaintiff’s underlying causes of action establishes triable
issues of fact on punitive damages. A
reasonable factfinder could conclude plaintiff presented clear and convincing
evidence that defendants willfully and consciously discriminated and retaliated
against her.
Disposition
Defendants Keosian Law, LLP, Harout
Keosian, and Melkon Melkonian’s motion for summary judgment or summary
adjudication is denied.
