Judge Bruce G. Iwasaki, Case Number: 20STCV47850, Date: 2023-08-10 Tentative Ruling

Case Name: Olga Hernandez v. Patient Preferred Dermatological Medical Group, Inc.

Tentative Ruling: The Motion for Summary Judgment is denied. Alternatively, the Motion for Summary Adjudication is granted in part and denied.

Plaintiff alleges she was terminated by her employer, Defendant Patient Preferred Dermatology Medical Group, Inc. (Medical Group), a dermatology medical practice, for unlawful and discriminatory reasons.

On May 18, 2022, Plaintiff filed a dismissal as to Defendant Mark Maida on the first, third, fourth, fifth, eight, and ninth causes of action.

On May 30, 2023, Defendants Medical Group, Sam Maida (Sam), and Mark Maida (Mark) moved for summary judgment, or in the alternative, summary adjudication of each cause of action.

The motion for summary judgment is denied. The Court denies the motion for summary adjudication of Issues Nos. 1-7 and 9; the motion for summary adjudication is granted as to Issue No. 8.

The Court rules on Plaintiff’s objections to Defendants’ evidence as follows: Nos. 1-10, 13-33 are overruled, and No. 11-12 are sustained.

“The party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A triable issue of material fact exists if the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof. (Ibid.)

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal. App. 4th 463, 467; Code Civ. Proc. § 437c, subd. (c).)

In opposition, Plaintiff argues that the motion for summary judgment is untimely. Plaintiff contends Defendants originally scheduled the hearing on their motion for July 25, 2023, and served the notice and supporting papers on May 26, 2023, only 61 days before the hearing. (Barta Decl., ¶ 4.) However, as conceded by Plaintiff, the hearing date was moved to August 10, 2023. However, Plaintiff also contends that Defendants never notified Plaintiff of the rescheduled hearing date. (Barta Decl. ¶¶ 5-6)

The hearing date was set more than 75 days from the filing and service of the papers; thus, any timing defect has been cured (or never existed).[1] Further, Plaintiff does not demonstrate any prejudice from Defendants’ failure to provide notice. Therefore, the Court declines to deny the motion for summary judgment on these procedural grounds.[2]

Under the FEHA, “[i]t is an unlawful employment practice . . . [f]or an employer, because of the . . . marital status, sex, gender, . . . of any person . . . to discharge the person from employment . . . or to discriminate against the person in compensation or in terms, conditions, or privileges of employment.” (Gov. Code § 12940, subd. (a).)

The Complaint alleges that Plaintiffs was unlawfully terminated from her employment because she requested leave to care for her children pursuant to the Family First Coronavirus Relief Act (FFCRA). (Compl., ¶¶ 14-15.) This unlawful termination allegation forms the foundation of Plaintiffs’ claims for discrimination, retaliation and harassment under FEHA. It is also the basis for Plaintiff’s claims for wrongful termination in violation of public policy, defamation, IIED claim and violation of Business and Professional Code section 17200 claim. (Compl., ¶¶ 58-59, 62-66, 69, 80.)

Defendants argues that Plaintiff cannot prevail on her first, second, third, fourth, fifth, sixth, seventh, and ninth causes of action because she was terminated for legitimate reasons – Defendants’ belief that that Plaintiff stole from Defendant Medical Group. (DSS 4-5, 11-12, 18-19, 25-26, 32-33, 39-40, 46-47, 56-57.)

California uses the three-stage burden-shifting test established by the United States Supreme Court for trying claims of discrimination based on a theory of disparate treatment. (Guz v. Betchel National, Inc. (2000) 24 Cal.4th 317, 354]; see McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792.) “This so-called McDonnell Douglas test reflects the principle that direct evidence of intentional discrimination is rare, and that such claims must usually be proved circumstantially. Thus, by successive steps of increasingly narrow focus, the test allows discrimination to be inferred from facts that create a reasonable likelihood of bias and are not satisfactorily explained.” (Wilkin v. Community Hospital of the Monterey Peninsula (2021) 71 Cal.App.5th 806, 820.)

“ ‘Under the McDonnell Douglas test, the plaintiff has the initial burden of establishing a prima facie case of discrimination. [Citation.] To meet this burden, the plaintiff must, at a minimum, show the employer took actions from which, if unexplained, it can be inferred that it is more likely than not that such actions were based on a prohibited discriminatory criterion. [Citation.] A prima facie case generally means the plaintiff must provide evidence that (1) the plaintiff was a member of a protected class, (2) the plaintiff was qualified for the position he or she sought or was performing competently in the position held, (3) the plaintiff suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some other circumstance suggests a discriminatory motive. [Citation.]” (Wilkin v. Community Hospital of the Monterey Peninsula (2021) 71 Cal.App.5th 806, 820.)

“A defendant employer’s motion for summary judgment slightly modifies the order of these [McDonnell Douglas] showings. If, as here, the motion for summary judgment relies in whole or in part on a showing of nondiscriminatory reasons for the discharge, the employer satisfies its burden as moving party if it presents evidence of such nondiscriminatory reasons that would permit a trier of fact to find, more likely than not, that they were the basis for the termination. [Citations.] To defeat the motion, the employee then must adduce or point to evidence raising a triable issue, that would permit a trier of fact to find by a preponderance that intentional discrimination occurred. [Citations.] In determining whether these burdens were met, we must view the evidence in the light most favorable to plaintiff, as the nonmoving party, liberally construing [the plaintiff's] evidence while strictly scrutinizing defendant's.” ’ ” (Kelly v. Stamps.com Inc. (2005) 135 Cal.App.4th 1088, 1097; Wilkin v. Community Hospital of the Monterey Peninsula (2021) 71 Cal.App.5th 806, 822.)

Here, Defendants submit evidence that they argue demonstrates a legitimate basis for Plaintiff’s employment termination.

Specifically, on August 4, 2020, Defendant Sam Maida observed Plaintiff walk into the Medical Group’s laboratory room, place a bag of leftover food on top of the cardboard box and attempt to walk out of the room with both the food and the box at the end of the business day. (DSS 5.) When Defendant Sam questioned Plaintiff about the box, Plaintiff immediately put it down and claimed she did not know what it was or why she picked it up; she when left the building without the box. (DSS 5.) Defendant Sam Maida found this behavior suspicious and, when he opened the box, he found Defendant Medical Group products inside, including prescription medicine. (DSS 5.) Defendant Sam returned the products to the sample closet room and discarded the box. (DSS 5.)

The next morning, Defendant Sam stated that he observed Plaintiff leaving the Medical Group facility with a cardboard box in her hands. (DSS 5.) When he later watched the video footage of Plaintiff leaving the Medical Group facility with a box in her hands, he believed Plaintiff had returned to steal the Medical Group products from night before. (DSS 5.) Sam reported this incident to Defendant Mark Maida. (DSS 5.)

Defendant Mark Maida instructed Sam to meet with both Plaintiff and her supervisor together and to give Plaintiff an opportunity to confess to removing the box from the Medical Group facility. (DSS 4-5.) Defendant Mark Maida instructed Sam to terminate Plaintiff if she denied removing the box from the facility. (DSS 4-5.)

According to Defendants’ evidence, Plaintiff continued to deny taking the box until Sam informed her that she was being terminated; Plaintiff then stated that the box contained “just samples.” (DSS 5.) Thereafter, Sam drafted a termination letter and provided Plaintiff with her final paycheck. (DSS 5.)

The Complaint alleges that, on August 5, 2020, Plaintiff “provided a written request to Sam Maida for leave in late August to assist her children with school because their schools were being held remotely due to COVID-19. (Compl., ¶ 13.) Specifically, Plaintiff testified that between 7:52 a.m. and 8:00 a.m. on August 5, 2020, she entered left a “leave of absence letter” in Sam’s office next to Sam’s computer. (DSS 5.) Plaintiff testified that she did not hand a copy of the letter to Sam or any other supervisor, nor did she email, mail it, or transmit it in any other fashion. (DSS 5.)

Defendant Mark states that he was not aware of any letter from Plaintiff asking for time off until days later and he did not read the letter until Plaintiff filed the lawsuit. (DSS 5 [Mark Decl., ¶¶ 13, 16, Sam Decl., ¶¶ 19, 23].) Thus, Defendants contend that there is no evidence that the letter was considered by Defendant Mark Maida when he made the decision to terminate her employment.

By advancing a nondiscriminatory reason for termination, Defendants have shifted its initial burden on this motion for summary judgment.

In opposition, Plaintiff argues Defendants’ explanation for her termination was merely pretext for an unlawful reason.

First, Plaintiff submits evidence that prior to her termination she was performing competently during her six years of employment. (PAF 6.) Second, Plaintiff submits evidence that she was terminated mere hours after she requested COVID-leave to take care of her children. (PSS 2; PAF 18-27.) She states that leaving the letter on Defendant Sam’s desk was how she requested maternity leave previously. (PAF 28 [Hernandez Decl., ¶¶ 9-10].) Finally, to undermine Defendants’ explanation for why Plaintiff terminated, Plaintiff states that although there was no written policy regarding staff’s rights to take samples home, there was a long-standing practice that staff could take any samples left in the back room without asking permission. (PAF 10-11.) Many employees took samples and until August 5, 2020, no employee had been fired for doing so. (PAF 14-15.)

Contrary to the argument raised in the reply, Plaintiff is not challenging the soundness of Defendants’ decision to terminate her. Rather the opposition evidence raises an inference as to whether Defendants’ proffered explanation of Plaintiff “stealing samples” was the true motivation for her termination or merely a pretext. The opposition evidence raises an inference sufficient to raise a triable issue of material fact.

Defendants argue that they had no obligation to investigate the contents of the box Sam says he observed Plaintiff carrying as she left the facility on August 5, 2020. But the lack of any evidence of its contents weakens the reasonableness of Defendants’ belief that Plaintiff acted improperly.

Additionally, while Defendants’ evidence suggests that Defendant Sam Maida did not make the decision to terminate Plaintiff and the evidence indicates that Mark did not know of Plaintiff’s leave request letter, the evidence also shows that Defendant Mark instructed Defendant Sam to terminate Plaintiff based solely on Sam Maida’s factual report to Mark—which may have been influenced and colored by Plaintiff’s leave request. (Reeves v. Safeway Stores, Inc. (2004) 121 Cal.App.4th 95, 109 [“that ignorance of a worker's protected activities or status does not afford a categorical defense unless it extends to all corporate actors who contributed materially to an adverse employment decision.”].)

Defendant Sam insists he did not see Plaintiff’s request letter until “days later,” and did not read it until after the lawsuit was filed. (Sam Decl., ¶ 19.) However, Plaintiff’s evidence that she left the letter on Sam’s desk and had made similar requests for leave in the past this way, raise a triable issue of material fact as to whether Sam was aware of the request. (Hernandez Decl., ¶ 7.) Thus, evidence that Mark Maida made the decision to terminate Plaintiff and he was not aware of Plaintiff’s leave request are insufficient to grant summary adjudication.

The Complaint also alleges Plaintiff was not provided proper, compliant rest periods pursuant to Labor Code section 226.7. (Compl., ¶¶72-76.)

“State law obligates employers to afford their nonexempt employees meal periods and rest periods during the workday. [Citations.] Labor Code section 226.7, subdivision (a) prohibits an employer from requiring an employee ‘to work during any meal or rest period mandated by an applicable order of the Industrial Welfare Commission.’ ” (Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1018 [fns. Omitted].) Industrial Welfare Commission wage order No. 4-2001 likewise prescribe meal and rest periods. (Cal. Code Regs., tit. 8, § 11040, subds. 11(A), 12(A).) “Employers who violate these requirements must pay premium wages.” (Brinker Restaurant Corp., supra, 53 Cal.4th at 1018; Cal. Code Regs., tit 8, § 11040, subds. 11(B), 12(B).)

In moving for summary adjudication of this issue, Defendants submit evidence that they never restricted or prohibited Plaintiff from taking a rest break. (DSS 50.) Further, Plaintiff even testified in deposition that she had opportunities to take rest breaks. (DSS 50.) When asked why Plaintiff chose not to take a second rest breaks during the workweek, Plaintiff testified that she did not take the second break because “the only reason is when it gets super busy, we don’t get a chance to go to a second break,” (DSS 50 [Hernandez Deposition 84:11-16].) Plaintiff again testified that nobody at the Medical Group ever told her not to take a break but that she “felt” that she was too busy to take that break. (DSS 50.) Plaintiff also testified that she never informed anyone at Medical Group, including her supervisor, that she was too busy to take a second break. (DSS 51.) As a result, Defendants were unaware that Plaintiff did not take a second rest break. (DSS 51.)

In opposition, Plaintiff submits her declaration stating that Defendants never scheduled a relief receptionist and Defendants also required someone to be at the front desk; “Monday through Thursday, no one came to relieve me so that I could take a break.” (Hernandez Decl., ¶ 4.)

Here, the undisputed evidence shows that Plaintiff did take breaks on Fridays, but she asserts that it was often so busy on other days that felt she could not take her second break. The evidence does not show that Defendants were aware that Plaintiff felt she could not take a break and there is also no evidence that they took any affirmative steps to discourage her from taking a break. Plaintiff only submits evidence that Defendants set the employee schedule and certain days were busier than others.

This evidence is insufficient to show Defendants violated Labor Code section 226.7; that is, Plaintiff has not raised a triable issue of material fact showing she was denied the opportunity to take breaks or was discouraged from doing so. (Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1040; see Cal. Code Regs., tit. 8, § 11010, subds. 11(A) & (B) [“meal period may be waived by mutual consent of the employer and employee”], 12 [“employer shall authorize and permit all employees to take rest periods”].)

Defendants’ motion for summary adjudication is denied as to Issues Nos. 1-7, and 9. The motion for summary adjudication is granted as to Issue No. 8.

[1] Defendants claim that there was simply a typo as to the hearing date on the notice of motion, and the hearing was always scheduled for August 10, 2023. In any event, there is no evidence of any prejudice to Plaintiff.

[2] Plaintiff also argues that Defendants’ motion fails to comply with the requirement to include a compendium of evidence as required under California Rule of Court 3.1350, subdivision (g). However, while the Court urges the parties to comply with all the Rules of Court, this defect is not a basis to decline to consider Defendants’ motion.