Judge: Armen Tamzarian, Case: 21STCV25597, Date: 2023-03-06 Tentative Ruling

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Case Number: 21STCV25597    Hearing Date: March 6, 2023    Dept: 52

Tentative Ruling:

Defendant Los Angeles County Metropolitan Transit Authority’s Motion for Summary Judgment or in the Alternative Summary Adjudication

Defendant Los Angeles County Metropolitan Transit Authority (MTA) moves for summary judgment or, in the alternative, summary adjudication on each cause of action alleged in plaintiff Lana McLeod’s first amended complaint.

Evidentiary Objections

            Defendant makes 7 objections to plaintiff Lana McLeod’s declaration.  Objection Nos. 1 and 4-7 are sustained.  Objection Nos. 2 and 3 are overruled.

            Defendant makes 3 objections to plaintiff’s Exhibit 1-A, the group text messages.  Objection Nos. 2 and 3 are sustained.  Objection No. 1 is overruled.

            Defendant makes 29 objections to plaintiff’s deposition transcript.  Objection Nos. 1, 2, 21, and 22 are sustained.  Objection Nos. 3-20 and 23-29 are overruled. 

            Defendant makes 2 objections to plaintiff’s Exhibit 7, emails between plaintiff and Keyawna Mitchell.  Both objections 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.) 

1st Cause of Action: Sex Discrimination

Defendant is entitled to 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.)  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, 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.)

A. Prima Facie Case

Plaintiff does not establish 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).)

None of plaintiff’s evidence meets the final element: a circumstance suggesting a discriminatory motive.  As defendant argues, plaintiff does little more than show that she is a woman and was fired.  She provides no evidence, for example, that defendant replaced her with a man.  (See Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1003.)  She provides no evidence that defendant gave favorable treatment to male bus drivers.   

Plaintiff instead tries to frame her sexual harassment claim as suggesting a discriminatory motive.  Plaintiff, however, has no evidence suggesting her complaints that Jose Estrada Mejia sexually harassed her were connected to her termination.    

Plaintiff fails to show a genuine dispute of fact regarding whether manager Charlene Carr terminated her for public safety concerns.  (UMF No. 26, Mattocks Decl., ¶ 13, Ex. H.)  She instead cites her declaration stating why she believed she was fired (McLeod Decl., ¶ 9), which is irrelevant, and evidence describing and showing her absences from work shortly before her termination (Mattocks Depo., 135:13-136:14; P. Ex. 15.)  That plaintiff had absences and may have been subject to discipline for them does not show that defendant terminated her for that reason.  And even if defendant terminated her for unexcused absences, that would not suggest a discriminatory motive.  That would be a different legitimate reason for discipline.

Moreover, at most, this evidence would support an inference defendant terminated plaintiff in retaliation for opposing sexual harassment—not because she is a woman.  Retaliation is a separate cause of action under FEHA.  (Gov. Code, § 12940(h).)  Plaintiff did not allege that cause of action.

B. Legitimate Reason for Termination

Assuming plaintiff met her initial burden, defendant would meet its burden of showing a legitimate reason for firing her.  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.)

Defendant presents evidence it fired her for a legitimate reason.  Pursuant to the applicable collective bargaining agreement, a bus driver may be discharged for having three “avoidable accidents” within 18 months.  (Def. Ex. L, CBA, pp. 92-93, § 1, pp. 104-105, § 17.)  Defendant convenes a three-person Accident Review Board to determine whether an accident is avoidable.  (Mattocks Decl., ¶¶ 5-6; CBA, p. 105, § 18.)  Separate Accident Review Boards concluded McLeod caused avoidable accidents on: January 24, 2019 (Mattocks Decl., ¶ 8, Ex. A), February 21, 2019 (id., ¶ 9, Ex. B), June 20, 2019 (id., ¶ 10, Ex. C), September 3, 2019 (id., ¶ 11, Exs. D-F), September 15, 2019 (id., ¶ 15, Ex. J), and September 19, 2019 (id., ¶ 16, Ex. K).  These amount to six avoidable accidents within 9 months, which greatly exceeds the threshold for discharging a driver under the CBA.  Defendant therefore eliminates any presumption of discrimination.

C. Plaintiff’s Final Burden

Plaintiff does not meet her final burden of providing substantial responsive evidence that defendant terminated her because of her sex.  In this final 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.)

Plaintiff shows no genuine dispute of material fact on whether she was terminated for getting in accidents.  In her response to defendant’s separate statement of undisputed facts, plaintiff states, “Undisputed that Plaintiff was charged with 6 avoidable accidents.”  (UMF Nos. 85, 126.) 

Plaintiff instead tries to dispute whether the accidents were avoidable or whether her bus suffered any damage.  Even if plaintiff is right, that would not constitute substantial responsive evidence permitting an inference of discriminatory intent.  “[I]f nondiscriminatory,” the employer’s “true reasons” for the adverse employment action “need not necessarily have been wise or correct.”  (Guz, supra, 24 Cal.4th at p. 358.)  “ ‘[L]egitimate” reasons” are those “facially unrelated to prohibited bias, and which, if true, would thus preclude a finding of discrimination.”  (Ibid.)  The “ultimate issue is whether [the] employer ‘honestly believed in the reasons it offers.’ ”  (Ibid.) 

It is undisputed that defendant employed the collectively bargained formal procedure for determining whether drivers are at fault in accidents.  It is undisputed that six times, at least two out of three members of an Accident Review Board concluded plaintiff should have avoided an accident.  People can reasonably disagree on whether an accident was avoidable.  But for these six accidents, at least two of the three people charged with making that decision agreed they were avoidable.  Even if they should have reached the opposite conclusion, that would not permit an inference of discrimination.  Plaintiff presents no evidence suggesting defendant did not honestly believe in the reasons for terminating her. 

Though Mejia himself served on one of the six Accident Review Boards, that does not suggest a discriminatory motive for terminating plaintiff for two reasons.  First, the other five accidents would have been enough to terminate plaintiff under the CBA.  Second, the decision was unanimous.  (Mattocks Decl., Ex. C.)  Because the other two members found the accident avoidable, the outcome would have been the same regardless of Mejia’s participation.

Plaintiff relies on her own declaration, which states, “On September 3, 2019, I was involved in an accident which resulted from a vehicle cutting in front of the bus as I was slowly pulling away from the curb into the lane; I was forced to hit the brakes to avoid hitting the car in front of me.  Two patrons fell in the aisle and the backpack of the patron entering the bus hit the windshield, which cracked it.  MTA falsely states the patron who was entering the bus hit his head on the windshield, that is not true.  There is absolutely no evidence that the patron hit their head on the windshield.  All of the witness cards state that it was not my fault, no one was injured, nor did any of the patrons request medical attention.”  (McLeod Decl., ¶ 7.)

This accident was serious, regardless of whether the rider’s head or backpack hit the bus’s windshield.  Defendant presents pictures from footage of the incident and photos of the resulting cracked windshield.  (Mattocks Decl., ¶ 11, Ex. F.)  As discussed above, it is not enough that witnesses thought the accident was not avoidable.  Two of the three people empowered to make that determination under the CBA concluded it was avoidable.  (Mattocks Decl., ¶ 11, Ex. D.) 

Plaintiff also purports to dispute defendant’s facts by stating, “The Collective Bargaining Agreement between MTA and the Sheet, Metal, Rail & Transportation Union Transportation Division, provides in sum at Article 17 (c) that ‘accidents involving flat tires, mirror damage or incidents caused by overgrown and windblown trees, sideswipes’, other vehicle hits an MTA bus (including drifting back or backing), will be evaluated separately from other accidents, and will not be considered in the review of a bus operator’s record.”  (Opp. Separate Statement, UMF Nos. 16-18, 69-71, 85, 110-113, 126.) 

As defendant notes, plaintiff omits a crucial portion of the agreement: “The following events (incidents) that do not result in personal injury or extensive property damage and are reasonably beyond the control of the operator will be recorded and evaluated separately from other accidents.”  (CBA, p. 105, § 17(c).)   That an accident is “avoidable” means it was not “reasonably beyond the control of the operator.”

Finally, plaintiff argues defendant inadequately investigated her complaints about Mejia, which supports an inference of discrimination.  That is not the relevant investigation.  As defendant notes, the relevant investigation is the one supporting the employer’s reasons for terminating plaintiff.  A factfinder should “assess the objective reasonableness of the employer’s factual determination of misconduct,” including “whether the factual basis on which the employer concluded a dischargeable act had been committed was reached honestly, after an appropriate investigation and for reasons that were not arbitrary or pretextual.”  (Silva v. Lucky Stores, Inc. (1998) 65 Cal.App.4th 256, 262.)

Plaintiff relies on Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 280, which stated, “An employer’s failure to interview witnesses for potentially exculpatory information evidences pretext.”  This sentence refers to investigation of the incident defendant relied on as its reason for firing the plaintiff.  (Id. at pp. 276-280.)         

D. Conclusion

The Supreme Court has stated, “Certainly there will be instances where although the plaintiff has established a prima facie case and set forth sufficient evidence to reject the defendant’s explanation, no rational factfinder could conclude that the action was discriminatory.  For instance, an employer would be entitled to judgment as a matter of law if the record conclusively revealed some other, nondiscriminatory reason for the employer’s decision, or if the plaintiff created only a weak issue of fact as to whether the employer’s reason was untrue and there was abundant and uncontroverted independent evidence that no discrimination had occurred.”  (Reeves v. Sanderson Plumbing Products, Inc. (2000) 530 U.S. 133, 148.)

Here, plaintiff does not establish a prima facie case or set forth sufficient evidence to reject defendant’s explanation for firing her.  Even if she did, no rational factfinder could conclude her termination was discriminatory.  The record conclusively shows a nondiscriminatory reason for terminating plaintiff.  Defendant’s Accident Review Boards concluded plaintiff caused six avoidable collisions from January to September 2019.  Thomas Mattocks, a former Director of Transportation Operations for MTA, states, “In my 40 years with MTA I do not recall ever a bus operator having 6 avoidable accidents within 9 months and being allowed to continue to be employed with MTA.”  (Mattocks Decl., ¶ 16.)  Instead, “every MTA employee who has had 4 to 5 avoidable accidents in an 18 month period has been terminated.”  (Id., ¶ 18.) 

As a whole, the evidence does not support a reasoned inference that defendant fired plaintiff because of her sex or gender.  Few jobs have performance metrics as clear and objective as those for being a bus driver.  Causing numerous collisions is an ironclad reason for disciplining or terminating a bus driver.   

2nd Cause of Action: Sexual 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.)    

A. Actionable Harassment

Plaintiff demonstrates triable issues of material fact on whether she was subjected to offensive conduct sufficiently severe or pervasive to alter the conditions of her employment.  At her deposition, plaintiff testified that Mejia harassed her by “[f]licking his tongue out, flicking – flicking his tongue, making breathing noises, sighing.  [Saying] [o]oh, baby.  It was disgusting.  It was berating and it was disgusting.”  (McLeod Depo., 90:1-4.)  Plaintiff further testified that Mejia tried to learn how old she was without directly asking her, “[a]nd he did it in such a way as bringing up my menstrual cycle,” including saying “that he could get rid of menstrual cramps with a homemade tea he knows how to make and he could give that to me if I had that issue.”  (Id., 90:13-21.) 

Plaintiff testified Mejia told her that “before there were cameras on the bus,” he “would have the women meet him on his layovers for sex.  …  And that one time there was a problem because two women met up at the same time at his layover and it was a problem for him because it was two women there for him at the same time for the same thing.”  (McLeod Depo., 91:8-18.)  She continued, testifying that Mejia said “he was very popular … and all of the women at Division 19 wanted him.”  (Id., 91:19-21.)  Mejia told her the women “write notes and leave me notes and they tell his fiends so his friends can come and tell him.  And that’s how he knows that every woman at Division 18 wanted him.”  (Id., 91:22-92:1.) 

Furthermore, plaintiff testified that “every night” on the bus route, they “passed by a motel,” and Mejia “told me that that is the Division 18 motel and that everybody goes there, and he’s looking at me.”  (McLeod Depo., 92:8-14.)  Plaintiff further testified, “He told me not to tell my husband about what he discussed with me because my husband could get jealous and may not like it.  He also told me about he knows how to — how to — how I could go about getting money from my husband and his — one of his favorite sayings was no money, no honey. So he would always say that and told me that I need to do that with my husband.”  (Id., 92:18-25.)  Plaintiff stated Mejia ridiculed her husband for making less money than him.  (Id., 93:1-13.)  She also testified that after Mejia was no longer her line mentor, she felt harassed by “smirks that he would give me, the smiles, the laughing, all of that.”  (Id., 114:22-23.)

At one point, plaintiff concisely testified about the pervasiveness of Mejia’s unwelcome conduct.  When asked, “Did Mr. Mejia say anything else that you found nasty or horrific?”, plaintiff answered, “He said so much during the course of that week during those 40 hours.”  (McLeod Depo., 92:2-5.) 

Plaintiff also testified that Mejia said something suggesting he considered his own behavior offensive.  Plaintiff asked him, “[Y]ou have a daughter and you talk about women the way that you do?  I said what if someone talked to your daughter the way you behave towards women?”  (McLeod Depo., 93:19-22.)  He replied “[O]h, that’s not going to happen, that’s not going to happen.”  (Id., 93:23-24.)  A factfinder could interpret that response to mean Mejia acknowledged saying offensive, abusive, or degrading things about women.

This evidence is enough to create a triable issue of fact on whether Mejia’s conduct was actionable harassment.  Plaintiff testified that Mejia continually made inappropriate sexual comments to her.  He asked about her menstruation.  He boasted about frequently having sex with female coworkers and repeatedly pointed out a motel they would go to for that purpose.  Telling plaintiff she needed to apply his “favorite” saying, “no money, no honey,” with her husband meant she should withhold sex from her husband unless he pays her for it.  That statement in particular crosses well over the line from being merely an offensive comment to the sort of degrading remark capable of making the workplace intolerable.

The court cannot conclude that, as a matter of law, plaintiff’s evidence does not add up to sexual harassment severe or pervasive enough to create a hostile working environment.

B. Strict Liability for Harassment by Supervisor

            Plaintiff also demonstrates a triable issue of material fact on whether defendant MTA is strictly liable for harassment by Mejia.  For “harassment by a nonsupervisory employee,” the employer is liable only if it “(a) knew or should have known of the harassing conduct and (b) failed to take immediate and appropriate corrective action.”  (State Dept. of Health Services v. Superior Court (2003) 31 Cal.4th 1026, 1041.)  For harassment by a supervisor, however, the employer is “strictly liable.”  (Ibid.) 

There is a triable issue of fact on whether Jose Mejia was a supervisor.  FEHA defines “supervisor” as “any individual having the authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or the responsibility to direct them, or to adjust their grievances, or effectively to recommend that action, if, in connection with the foregoing, the exercise of that authority is not of a merely routine or clerical nature, but requires the use of independent judgment.”  (Gov. Code, § 12926(t).)  A person who “directed [the employee’s] day-to-day duties” can be a supervisor.  (Chapman v. Enos (2004) 116 Cal.App.4th 920, 930.)  “[F]ull accountability and responsibility for an employee’s performance … are not required.”  (Ibid.)

Jose Mejia served as plaintiff’s line mentor.  Former director of transportation operations Thomas Mattocks states, “A Line Mentor has no authority and cannot hire, transfer, promote, assign, discipline, direct daily activities, sign performance evaluations, act on grievances, and/or reward any MTA employee.”  (Mattocks Decl., ¶ 7.)  Former division manager Deborah Blair states the same.  (Blair Decl., ¶ 3.)

Though it is undisputed Mejia had no authority to fire, promote, or discipline plaintiff, she presents sufficient evidence to establish a triable issue of whether he had the responsibility to direct her.  At her deposition, plaintiff testified a line mentor’s duties are, “To teach you how to operate, …. To give you more hands-on training and to develop—to develop your driving techniques and to give you input as to the do’s and don’ts and the shoulds and should nots and evaluate you daily at the end of the shift.”  (McLeod Depo., 77:24-78:4.)  She further testified that a line mentor “would be the person in charge.”  (Id., 78:12-13.)  “They were the lead person.  They had authority over me.  They directed me as far as what we’re going to do next, what we’re doing now, what we’re going to do last, first, second, third.  They directed the activities of how they were going to train for that day.”  (Id., 78:21-25.) 

Moreover, Mattocks testified at deposition that a line mentor’s function is “[t]o instruct, to train, to get [the driver] prepared to operate on their own.”  (Def. Ex. S, Mattocks Depo., 159:13-14.)  One could interpret “instruct” as a synonym of “direct.” 

On this record, the court cannot conclude that Jose Mejia was not a supervisor as a matter of law.  A reasonable factfinder could conclude that Mejia had the responsibility to direct plaintiff and used independent judgment in doing so. 

3rd Cause of Action: Failure to Prevent Discrimination and Harassment

            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).)  Defendant relies 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 second cause of action for sexual harassment.  The second cause of action therefore serves as the underlying harassment that permits this cause of action for failure to prevent harassment. 

4th Cause of Action: Whistleblower Retaliation

The undisputed facts establish this cause of action has no merit for two independent reasons.

A. Merits

Defendant is entitled to summary adjudication based on the substantive evidence.  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.” 

The framework of burden shifting under McDonnell Douglas does not apply to whistleblower retaliation.  (Lawson v. PPG Architectural Finishes, Inc. (2022) 12 Cal.5th 703, 718 (Lawson).)  Instead, “once 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, supra, 12 Cal.5th at p. 716.)

As with sex discrimination, plaintiff has not shown a dispute of material fact on whether her reports or complaints were a contributing factor in her termination.  Her prima facie case amounts to no more than that she complained and was later terminated.   

Even if plaintiff met her initial burden, defendant presents undisputed evidence that meets its burden.  It shows, by clear and convincing evidence, that it would have terminated plaintiff for legitimate independent reasons even if she never engaged in protected activity.  As discussed above, defendant presents strong, undisputed evidence of an unquestionably legitimate reason for terminating plaintiff.  The decision to terminate her was a straightforward application of the CBA between bus drivers and MTA.  Pursuant to the CBA, defendant convened Accident Review Boards to determine whether plaintiff’s collisions were avoidable.  Separate boards concluded that plaintiff was involved in avoidable accidents six times within nine months.  Defendant’s evidence shows it terminated her for that reason. 

B. Government Claims Act

Defendant is also entitled to summary adjudication because plaintiff did not comply with the Government Claims Act (also known as the Tort Claims Act).  “[T]he timely filing of a written government claim is an element that a plaintiff is required to prove in order to prevail on his or her cause of action.”  (Willis v. City of Carlsbad (2020) 48 Cal.App.5th 1104, 1119.)  The Court of Appeal has held that “failing to file a timely government claim” bars a “cause of action alleging whistleblower retaliation in violation of Lab. Code, § 1102.5.”  (Id. at p. 1123, citing Le Mere v. Los Angeles Unified School Dist. (2019) 35 Cal.App.5th 237, 247.)

The undisputed facts show plaintiff did not comply with the procedure required to present a claim under the Government Claims Act.  Plaintiff provides no evidence she complied with the Government Claims Act.  Instead, she argues she was not required to do so because the Act does not apply to FEHA claims.  (Opp., p. 19; see Snipes v. City of Bakersfield (1983) 145 Cal.App.3d 861, 863.)  But this cause of action is not a FEHA claim.  Labor Code section 1102.5 is a separate statutory cause of action.  Defendant does not argue the Government Claims Act applies to plaintiff’s FEHA claims. 

Disposition

            The court hereby grants summary adjudication for defendant Los Angeles County Metropolitan Transit Authority on plaintiff Lana McLeod’s first and fourth causes of action.  The court hereby denies summary adjudication of plaintiff’s second and third causes of action.