Judge: Armen Tamzarian, Case: 22STCV11073, Date: 2024-03-29 Tentative Ruling

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Case Number: 22STCV11073    Hearing Date: March 29, 2024    Dept: 52

Tentative Ruling:

Defendants’ Motion for Summary Judgment or, in the Alternative, Summary Adjudication

            Defendants Alliance College-Ready Public Schools, Alliance For College-Ready Public Schools, and Alliance College Ready Academy High School 5 move for summary judgment or, in the alternative, summary adjudication of each cause of action alleged by plaintiff Delaina Martinez.

Requests for Judicial Notice

            Defendants request judicial notice of exhibits A-H.  Plaintiff requests judicial notice of exhibit A.  All nine exhibits are subject to judicial notice under Evidence Code section 452, subdivisions (a), (b), or (c).  The court grants all requests for judicial notice. 

Evidentiary Objections

            Plaintiff makes over three pages of objections to defendants’ evidence.  Plaintiff did not number the objections.  California Rules of Court, rule 3.1354(b) requires that “[e]ach written objection must be numbered consecutively.”  Consecutively numbering objections is necessary for the court to make clear rulings on them.  All of plaintiff’s objections are overruled.

            Defendants make 30 “objections to plaintiff’s response and supporting evidence in plaintiff’s separate statement of disputed material facts.”  These objections also violate California Rules of Court, rule 3.1354.  Evidentiary objections must “(1) Identify the name of the document in which the specific material objected to is located” and “(2) State the exhibit, title, page, and line number of the material objected to.”  (Rule 3.1354(b).)  Identifying the material objected to requires stating, for example, “Jackson declaration, page 3, lines 7-8.”  (Ibid.) 

Instead of objecting to evidence or providing the information necessary to locate the evidence to which they object, defendants object to assertions made in plaintiff’s response to the separate statement of undisputed material facts.  For example, they object to the statement, “Renewal Contracts are required to be sent out by March 15, 2019” and cite “Nos. 3, 50, 102, 157, 213, column 3, pp. 2, 32, 66, 102, 139.”  (Objection 1.)  Objections must concern the underlying evidence plaintiff uses to support her assertions, not the assertions themselves. 

Objection 14 further illustrates the problem.  The basis for the objection is “misstates testimony.”  That is not a valid reason to find the underlying evidence inadmissible.  (See Mora v. Big Lots Stores, Inc. (2011) 194 Cal.App.4th 496, 515 [“Evidence Code section 352 does not authorize the trial court to sustain an objection to counsel’s characterization of testimony even if it is inaccurate”].) 

All of defendants’ objections are overruled.

Legal Standard

Summary judgment should be granted where no triable issues of fact exist and the moving party is entitled to judgment as a matter of law.  (CCP § 437c(c); Villa v. McFerren (1995) 35 Cal.App.4th 733, 741.)  Courts use a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent’s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.”  (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.)  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: Whistleblower Retaliation

Triable issues of material fact preclude summary adjudication of this cause of action.  At trial of whistleblower retaliation claims under Labor Code section 1102.5, plaintiff bears the initial burden “to establish, by a preponderance of the evidence, that retaliation for an employee’s protected activities was a contributing factor in a contested employment action.”  (Lawson v. PPG Architectural Finishes, Inc. (2022) 12 Cal.5th 703, 718 (Lawson).)  “Once the plaintiff has made the required showing, the burden shifts to the employer to demonstrate, by clear and convincing evidence, that it would have taken the action in question for legitimate, independent reasons even had the plaintiff not engaged in protected activity.”  (Ibid.)  “[A] plaintiff does not need to show that the employer’s nonretaliatory reason was pretextual.  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.”  (Id. at pp. 715-716.)

On summary judgment, the moving defendant bears “the initial burden … to either negate an element of the plaintiff’s claim or establish a complete defense to the claim.”  (Swanson v. Morongo Unified School Dist. (2014) 232 Cal.App.4th 954, 965–966.)  If the defendant meets that burden, the plaintiff “need only present evidence establishing a triable issue on the specific element the [defendant] challenges.”  (Id. at p. 968.)

Defendants challenge the element of causation.  They meet their initial burden of negating that element by presenting evidence that plaintiffs’ protected activity was not “a contributing factor in the alleged prohibited action against the employee.”  (Lab. Code, § 1102.6.)  Defendants present evidence that they did not renew plaintiff’s contract only for legitimate reasons of poor performance.  Candice Dagnino was the principal of the school where plaintiff worked.  (Dagnino Decl., ¶ 2.)  She placed plaintiff on a performance improvement plan (PIP) on March 29, 2019.  (Id., ¶ 8.)  One of the performance issues was that plaintiff caused Dagnino to receive an alarming email “with the subject line: ‘Urgent Student Behavior Manner’ ” stating “that a student at the school was considering self-harm.”  (Id., ¶ 6.)  Plaintiff later told Dagnino the email “was just a test of a new system.”  (Ibid.)  Among other issues, Dagnino states plaintiff “provid[ed] incomplete assessments at the time of IEP meetings” (id., ¶ 8), plaintiff “was late or absent 11 times” (id., ¶ 10), and did not consistently maintain accurate records in the “Welligent” software “used by the school to track IEP services provided to students” (id., ¶ 9).  Defendants also present evidence that plaintiff occasionally took “personal phone calls during meetings.”  (Martinez Depo., vol. 2, 87:6-14.) 

Dagnino testifies that, after issuing the PIP, a student’s parents “complained to” her that “Dr. Martinez never showed up for” a scheduled meeting with them.  (Dagnino Decl., ¶ 13.)  She further testifies, “In early May 2019, Dr. Martinez performed an assessment on a student without first receiving parental permission.”  (Dagnino Decl., ¶ 13.)

Plaintiff meets her burden of showing triable issues of material fact on whether her protected activity contributed to defendants’ decision not to renew her contract.  “Both direct and circumstantial evidence can be used to show an employer’s intent to retaliate.  ‘Direct evidence of retaliation may consist of remarks made by decisionmakers displaying a retaliatory motive.’ ”  (Colarossi v. Coty US Inc. (2002) 97 Cal.App.4th 1142, 1153.)  “Circumstantial evidence typically relates to such factors as the plaintiff’s job performance, the timing of events, and how the plaintiff was treated in comparison to other workers.”  (Ibid.)  A plaintiff may also provide evidence “that the employer’s proffered reasons were untrue or pretextual.”  (Loggins v. Kaiser Permanente Internat. (2007) 151 Cal.App.4th 1102, 1109.) 

Plaintiff provides evidence undermining defendants’ reasons for its adverse employment actions.  She testified she was late four times, not late or absent 11 times.  (Martinez Depo., vol. 2, 81:9-18.)  She testified she kept proper records but the Welligent software had problems such as counting minutes as days.  (Id., 84:25-85:20, 106:4-109:9.)  And as for performing an assessment without parental permission, plaintiff testifies that she relied on other employees, “either Ms. Ramos or Ms. Garcia,” who told her that the parents approved the testing.  (Id., 60:7-20.) 

Moreover, the record includes evidence that defendants chose not to renew plaintiff’s contract soon after her protected activity.  “ ‘Close proximity in time of an adverse action to an employee’s resistance or opposition to unlawful conduct is often strong evidence of a retaliatory motive.’ ”  (Mendoza v. Western Medical Center Santa Ana (2014) 222 Cal.App.4th 1334, 1344; accord Zirpel v. Alki David Productions, Inc. (2023) 93 Cal.App.5th 563, 578.)  Plaintiff sent an email complaining about harassment, discrimination, and harassment on May 4, 2019.  (UMF No. 40.)  On May 15, 2019, Principal Dagnino informed plaintiff her contract would not be renewed.  (Martinez Depo., vol. 2, 149:8-13, 151:7-153:12.)  Plaintiff also presents evidence that, before the decision was made not to renew her contract, she complained about someone at the school changing her report on a student.  (Dagnino Depo., vol. 2, 311:15-23, 317:23-318:8.) 

After reviewing all evidence in the record, the court cannot conclude that, as a matter of law, no reasonable trier of fact could conclude plaintiff’s protected activity contributed to the decision not to renew her contract.  Nor can the court conclude that any reasonable trier of fact must find clear and convincing evidence that defendants would not have renewed plaintiff’s contract even if she had not engaged in protective activity.  “The 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 (Mamou).)  Defendants’ evidence may persuade a jury, but plaintiff presents sufficient evidence undermining the proffered reasons for her discipline that a factfinder could make a reasoned inference that defendants retaliated against her.     

2nd & 3rd Causes of Action: Age and Disability Discrimination

Triable issues of material fact preclude summary adjudication of these causes of action.  As with the first cause of action, defendants meet their initial burden of negating the element of causation, but plaintiff meets her burden of demonstrating triable issues of material fact.  The same evidence discussed above undermining defendants’ reasons for not renewing plaintiff’s contract supports an inference of discrimination. 

Plaintiff also presents evidence of potential age and disability-related bias based on Principal Dagnino’s comments to her in April 2019.  Plaintiff testified that Dagnino said she “needed to have the energy and enthusiasm to work with young people.”  (Martinez Depo., vol. 2, 56:25-57-1.)  Martinez explained that Dagnino “was commenting that I had been sitting in my office, not walking downstairs to get somebody to help me when I was supporting one of my colleagues.”  (Id., 57:3-6.)  A reasonable trier of fact could infer that Dagnino’s comment that plaintiff lacked “energy and enthusiasm” was a veiled reference to the fact that plaintiff was over 50 years old and had a disability that limited her ability to walk.      

Plaintiff further testified that Dagnino “said she didn’t trust me because of what I looked like.”  (Martinez Depo., vol. 2, 62:17-18.)  A reasonable trier of fact could conclude this reference to plaintiff’s appearance was connected to her age and not a legitimate performance critique. 

Defendants invoke the “same actor” inference because Dagnino both hired plaintiff and chose not to renew her contract.  “ ‘[W]here the same actor is responsible for both the hiring and the firing of a discrimination plaintiff, and both actions occur within a short period of time, a strong inference arises that there was no discriminatory motive.’ ”  (Horn v. Cushman & Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 809.)  But “the same-actor inference has lost some of its persuasive appeal in recent years.”  (Husman v. Toyota Motor Credit Corp. (2017) 12 Cal.App.5th 1168, 1188.)  The Court of Appeal has acknowledged scholars concluding that “ ‘reliance on the same-actor inference to carry the moving party over the hurdle of summary judgment is legally impermissible, because drawing legitimate inferences from the facts are jury functions and, at summary judgment, the court must disregard all evidence favorable to the moving party that the jury is not required to believe.’ ”  (Id. at p. 1189.)

At this stage, “citing 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.  That, and not ‘pretext,’ must be the focus of the judicial inquiry.”  (Mamou, supra, 165 Cal.App.4th at p .715.)  The court cannot conclude that, as a matter of law, plaintiff’s showing is too weak to sustain a reasoned inference of discrimination against her because of her age or disability. 

4th Cause of Action: FEHA Retaliation

Triable issues of material fact preclude summary adjudication of this cause of action for the same reasons as the first cause of action for whistleblower retaliation.

5th Cause of Action: Failure to Prevent Discrimination

Triable issues of material fact preclude summary adjudication of this cause of action.  FEHA requires an employer “to take all reasonable steps necessary to prevent discrimination and harassment from occurring.”  (Gov. Code, § 12940(k).)  Defendants rely on authority that this claim cannot stand on its own without an underlying claim for violating FEHA.  (Dickson v. Burke Williams, Inc. (2015) 234 Cal.App.4th 1307, 1309; Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th 280, 289.)  Because the court concludes there are triable issues of material facts relating to plaintiff’s underlying FEHA claims, this cause of action also survives summary adjudication.

Claim for Punitive Damages

            Triable issues of material fact preclude summary adjudication of plaintiff’s claim for punitive damages.  To recover punitive damages, a plaintiff must prove “by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice.”  (Civ. Code, § 3294, subd. (a).)  “Under the clear and convincing standard, the evidence must be so clear as to leave no substantial doubt and sufficiently strong to command the unhesitating assent of every reasonable mind.”  (Butte Fire Cases (2018) 24 Cal.App.5th 1150, 1158, internal quotes omitted.) 

On summary adjudication, “ ‘the judge must view the evidence presented through the prism of the substantive [clear and convincing] evidentiary burden.”  (American Airlines, Inc. v. Sheppard, Mullin, Richter & Hampton (2002) 96 Cal.App.4th 1017, 1049.)  “[A]lthough the ‘clear and convincing’ evidentiary standard is a stringent one, it does not impose on a plaintiff the obligation to ‘prove’ a case for punitive damages at summary judgment.”  (Ibid.)  “Summary judgment or summary adjudication ‘ “ ‘on the issue of punitive damages is proper’ only ‘when no reasonable jury could find the plaintiff’s evidence to be clear and convincing proof of malice, fraud or oppression.’ ” ’ ”  (Butte Fire Cases, supra, 24 Cal.App.5th at p. 1159.) 

The same evidence discussed above raises triable issues of material fact on the issue of punitive damages.  “[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.)  Evidence that an employer “intentionally discriminated against” an employee can establish malice.  (Cloud v. Casey (1999) 76 Cal.App.4th 895, 911.)  Plaintiff presents triable issues of material fact on whether defendants willfully retaliated against her or intentionally discriminated against her due to her age or disability.  The court cannot conclude that no reasonable jury could find the evidence to be clear and convincing proof of malice, fraud, or oppression.

Disposition

            Defendants’ motion for summary judgment or summary adjudication is denied.