Judge Bruce G. Iwasaki, Case Number: 21STCV07064, Date: 2024-10-24 Tentative Ruling

Motion: Motion for summary judgment or, in the alternative, motion for summary adjudication

This action arises under the Fair Employment and Housing Act (FEHA)(Gov. Code, § 12900 et seq.)

On February 25, 2022, Plaintiff Nataly Consuelo (Plaintiff) filed the instant action against Defendants Fashion Logistics, Inc. (Fashion Logistics), Franco Vago L.A. Inc. (Franco Vago), (collectively Defendants), Lyneer Staffing Solutions, LLC (Lyneer), Employers HR LLC, Franco Vago SpA, Nippon Express Italia SpA, Joseph Perez (Perez[1]), and Jose Arciniega (Arciniega). Plaintiff alleges Lyneer, Fashion Logistics, and Franco Vago subjected her to severe harassment on the basis of race, disability, and sex.

Defendants’ evidence – including video footage of the events in question and Plaintiff’s own duplicitous text messages to her former husband – demonstrate that Plaintiff’s Complaint and Declaration are substantially untrue. Plaintiff has failed to offer admissible evidence to raise a dispute of material fact. Accordingly, Defendants’ motion for summary judgment is granted.

2. Illegal Discrimination and Failure to Protect from such in violation of FEHA;

3. Illegal Retaliation and Failure to Protect from such in violation of the FEHA;

4. Illegal Failure and Refusal to Provide a Timely, Good Faith, Interactive Process in violation of FEHA;

5. Illegal Failure and Refusal to Provide a reasonable accommodation in violation of FEHA;

7. Violation of Whistleblower Protection under Labor Code sections 6310, 6311, and 6400;

12. Sexual Assault/Battery under Civil Code section 1708.5 and Civil Procedure Code section 340.16;

Plaintiff alleges that Perez and Arciniega, were her manager and supervisor, respectively, forced Plaintiff to go to a bar with them and then proceeded to drug, threaten, and rape her on March 6, 2020.

On October 2, 2022, Fashion Logistics filed an Answer. On June 12, 2023, Franco Vago filed an Answer.

On July 30, 2024, Defendants filed the instant motion for summary judgment on all causes of action or, in the alternative, summary adjudication.

On September 30, 2024, Plaintiff filed a declaration opposing the motion for summary judgment. On October 9, 2024, Plaintiff filed an opposition to the instant motion. As Defendants point out, Plaintiff’s papers are procedurally defective. Defendants objected to Plaintiff’s declaration and filed a reply.

The Court has reviewed and considered each objection interposed by Defendant. The Court sustains General Objections 1 and 2, and all 172 specific objections. Plaintiff’s declaration is completely inadmissible for multiple reasons, including the lack of a certified translation, complete failure to demonstrate personal knowledge to many assertions, and hearsay. Plaintiff’s separate statement in opposition to the motion fails to set forth any disputed facts. Because Plaintiff fails to offer admissible evidence, she fails to raise any material disputed fact to defeat summary judgment.

Plaintiff makes several objections to Defendants’ separate statement. Rather than filing a separate document with specific objections, Plaintiff includes her objections in her responses to Defendants’ separate statements. “All written objections to evidence must be served and filed separately from the other papers in support of or in opposition to the motion.” (Cal. Rules of Court, 3.1354(b).) “Each written objection must be numbered consecutively and must: Identify the name of the document in which the specific material objected to is located; State the exhibit, title, page, and line number of the material objected to; Quote or set forth the objectionable statement or material; and State the grounds for each objection to that statement or material.” (Cal. Rules of Court, 3.1354(b)(1)-(4).) Objections included in a separate statement opposing another party’s separate statement, violate rule 3.1354(b). (Hodjat v. State Farm Mutual Automobile Insurance Co. (2012) 211 Cal.App.4th 1, 8 (emphasis added).)

By failing to submit proper objections, Plaintiff waives her objections and the Court overrules them.

The Court grants Defendants’ request for judicial notice of the Pacific Standard Time zone and the Month of March in 2020.

A party may move for summary judgment “if it is contended that the action has no merit or that there is no defense to the action or proceeding.” (Code Civ. Proc., § 437c, subd. (a).) “[I]f all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)

The moving party has the initial burden of production to make prima facie showing the nonexistence of any triable issue of material fact, and if he does so, the burden shifts to the opposing party to make a prima facie showing of the existence of a triable issue of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850; accord Code Civ. Proc., § 437c, subd. (p)(2).) A defendant moving for summary judgment may meet its initial burden by proving that for each action alleged, plaintiff cannot establish at least one element of the cause of action. (Code Civ. Proc., § 437c, subd. (p)(2).)

Plaintiff’s Declaration states she worked for Fashion Logistics at a warehouse located at 20550 Denken Avenue, Torrance, CA 90501 (Torrance Warehouse) from December 2019 until March 2020. (Declaration of Nataly Consuelo [Consuelo Decl.], ¶ 7.)

On March 6, 2020, Plaintiff remained at the Torrance Warehouse after normal work hours to receive overtime. (Consuelo Decl., ¶ 20.) Around 5:00 pm, Plaintiff went to a local bar with Fashion Logistics employee Perez and Franco Vago employee Arciniega. (Consuelo Decl., ¶ 23.) Arciniega drove to the bar. (Consuelo Decl., ¶ 23.) Once at the bar, Plaintiff alleges that Perez became angry when she began texting her husband and that Perez took her cell phone away. (Consuelo Decl., ¶ 24.) After they drank several beers, Perez followed Plaintiff to the bar parking lot, pushed her against Arciniega’s car, and began groping her breasts and buttocks and penetrating her vagina with his fingers. (Consuelo Decl., ¶ 34.) Perez then forced her into the back of the car, got on top of her, and continued the same behavior. (Consuelo Decl., ¶ 34.) Shortly thereafter, Perez, Plaintiff, and Arciniega drove back to the Torrance Warehouse. (Consuelo Decl., ¶ 34.) Throughout the drive back, Plaintiff alleges Arciniega, repeatedly slammed the breaks causing Plaintiff to hit her head. (Consuelo Decl., ¶ 25.)

Later that night, Plaintiff vomited and felt pain between her legs. (Consuelo Decl., ¶ 38.) Plaintiff told her then-husband, Juan Castaneda, that Perez and Arciniega had sexually assaulted her that night. (Consuelo Decl., ¶¶ 38-39.) Plaintiff and her then-husband called the Police, and Plaintiff went to a hospital where a nurse practitioner examined her injuries and performed a rape kit examination. (Consuelo Decl., ¶ 39.) The rape kit found Perez’s DNA only under Plaintiff’s fingernails. (Consuelo Decl., ¶ 11.)

This summary is set forth to provide context to the causes of action. The Court finds that Plaintiff’s declaration is inadmissible. Even if the Court received such evidence, it fails to rebut the video showing no evidence of coercion of, or fear by, Plaintiff in her apparently ebullient after hours drinking session with Perez, or that she unwillingly left the bar with him hand in hand. Defendants have presented evidence that demonstrates more likely than not that essential elements of Plaintiff’s case cannot be established. Plaintiff fails to offer evidence to contradict Defendants’ evidence.

First, Second, and Third Causes of Action under FEHA – Illegal Harassment, Discrimination, Retaliation, and Failure to Protect.

A plaintiff pursuing a FEHA “failure to prevent harassment” claim, must prove that: (1) plaintiff was an employee of defendant; (2) plaintiff was subjected to harassment, discrimination, or retaliation in the course of employment; (3) defendant failed to take all reasonable steps to prevent harassment, discrimination, or retaliation; (4) plaintiff was harmed; and (5) the defendant’s failure to take reasonable preventative steps was a substantial factor in causing the plaintiff’s harm. (CACI 2527; see also Trujillo v. N. Cty. Transit Dist. (1998) 63 Cal.App.4th 280, 286-287.)

First, it is undisputed that Plaintiff was an employee of Fashion Logistics. It is undisputed that Plaintiff was not an employee of Franco Vago.

To prove that Plaintiff was not an employee of Franco Vago, Defendants have attached the declarations of William Magherini, Fashion Logistic’s President and Franco Vago’s President, and the Declaration of Sheila Mojtehedi, counsel of record for both Defendants. (Declaration of William Magherini [Magherini Decl.], ¶ 1; Declaration of Shelia Mojtehedi [Mojtehedi Decl.], ¶ 1.)

Fashion Logistics runs a third-party logistics services business. (UMFs No. 1; Magherini Decl., ¶ 2.) Lyneer, a temporary staffing agency, placed Plaintiff with Fashion Logistics as a temporary pack operator at a warehouse in Torrance (Torrance Warehouse) beginning on February 24, 2020. (Compl., ¶ 5; Undisputed Material Facts [UMFs], No. 7; Magherini Decl., ¶ 6; Mojtehedi Decl., ¶ 4, Exh. L, at p. 157.) Fashion Logistics paid Lyneer for these services. (Magherini Decl., ¶ 4.) Fashion Logistics trains the pick and pack operators. (UMFs Nos. 9, 10; Magherini Decl., ¶ 7.)

Franco Vago is a freight forwarder. (UMFs No. 4; Magherini Decl., ¶ 2.) Franco Vago uses the same Torrance Warehouse for its business needs. (UMFs Nos. 5, 6; Magherini Decl., ¶¶ 3, 4.) However, Franco Vago did not control the manner in which Plaintiff performed her duties for Fashion Logistics, never paid for Plaintiff’s work or services, had no say in Plaintiff’s work for Fashion Logistics, and Plaintiff never provided any work or services for Franco Vago. (UMFs Nos. 10, 14; Magherini Decl., ¶ 8.) Plaintiff never directly applied to work for Franco Vago nor worked for Franco Vago, and Franco Vago has no business relationship with Lyneer. (UMFs Nos. 6, 13; Magherini Decl., ¶¶ 4, 8.)

In opposition, Plaintiff argues that, in her opinion, Franco Vago and Lyneer have an existing business relationship similar to that of Lyneer’s relationship with Fashion Logistics. To prove she was a Franco Vago employee, Plaintiff presents her declaration, her own undisputed material facts (numbers 1-70), and the Magherini Declaration. (Plaintiff’s Undisputed Material Facts [PUMFs], Nos. 1-70; Declaration of Nataly Consuelo [Consuelo Decl.], ¶¶ 5-6.)

Plaintiff asserts that other employees informed her that Arciniega, a Franco Vago employee at the time of the alleged incident, was a top general manager over all employees at the Torrance Warehouse, making her a Franco Vago employee. (PUMFs, No. 10.) Plaintiff cites the Magherini Declaration, paragraph 13, but this evidence does not support Plaintiff’s contention. Additionally, Plaintiff claims Fashion Logistics and Franco Vago were a “single enterprise” making her a Franco Vago employee. (Response to UMFs No. 13.) Plaintiff provides no evidentiary support for this contention.

To determine whether an employee-employer relationship exists for FEHA employment claims, the court must consider the “totality of the circumstances” reflecting on the nature of the work relationship of the parties, with an emphasis upon the extent to which the defendant controls the plaintiff’s performance of employment duties.[2] (Vernon v. State of California (2004) 116 Cal.App.4th 114, 125.) “Multiple entities may be employers where they ‘control different aspects of the employment relationship.’” (Castaneda v. Ensign Group, Inc. (2014) 229 Cal.App.4th 1015, 1019, quoting Martinez v. Combs, (2010) 49 Cal.4th 35, 76.) For example, when a temporary staffing agency “hires and pays a worker, and another entity supervises the work.” (Martinez, supra, 49 Cal.4th at p. 76.) “Supervision of the work, in the specific sense of exercising control over how services are performed, is properly viewed as one of the ‘working conditions[.]’” (Ibid.) “[C]ontrol over how services are performed is an important, perhaps even the principal, test for the existence of an employment relationship.” (Ibid.)

The Court finds that the undisputed evidence shows that Plaintiff was an employee of both Lyneer and Fashion Logistics because Fashion Logistics paid Lyneer to place Plaintiff with Fashion Logistics as a pick and pack operator. Fashion Logistics trained Plaintiff and instructed her on how to complete her tasks. The evidence shows that Franco Vago and its employees were not involved in Plaintiff’s training or a business relationship with Lyneer. Thus, Defendants have met their burden of showing no issue of material fact regarding Plaintiff’s employment relationship.

As a matter of law, because no employer-employee relationship existed between Franco Vago and Plaintiff, the Court grants Franco Vago summary judgment on all Plaintiff’s causes of action.

Plaintiff was not harassed. The evidence shows that Plaintiff welcomed Perez’s conduct. That evidence is uncontradicted.

To prove no harassment occurred, Defendants present the Magherini and Mojtehedi declarations and surveillance footage from the bar on night of the alleged incident. That evidence demonstrates that Plaintiff, far from being coerced or in fear, engaged in friendly and behavior with both Perez and Arciniega throughout the night of the alleged incident, including kissing, hugging, and holding hands with Perez. Plaintiff’s declaration – which the Court finds inadmissible – does not address the contradiction between what is shown on the video and what she pleaded in her Complaint and substantially repeats in her declaration.

The surveillance footage shows that Plaintiff drank several beers, engaged in continuous conversation, toasted drinks, laughed, and smiled with Perez and Arciniega throughout the night. (UMFs Nos. 65-120; Magherini Decl., ¶ 11; Mojtehedi Decl., ¶¶ 3, 9-18, Exhs. D, E, L, and M.) Defendants also argue that Plaintiff flirted with Perez throughout the night gesturing for him to kiss her on the cheek, kissing him on the lips at least seven times, putting her arm around Perez, and walking hand-in-hand with Perez to the parking lot. (UMFs Nos. 104-116; Mojtehedi Decl., ¶¶ 2-3, 14-15, Exhs. D, E; Magherini Decl., ¶ 11.) According to the timestamps on the surveillance videos, Plaintiff flirted with Perez while texting her husband. (UMFs No. 104; Mojtehedi Decl., ¶ 2, Exhs. D, E, ¶¶ 3, 14-15; Magherini Decl., ¶ 11.)

Plaintiff and her then-husband exchanged text messages from 7:53 pm until 8:26 pm. (UMFs Nos. 91-100; Mojtehedi Decl., ¶ 2, Exhs. D, E, ¶ 4, Exh. L, RT 158-159.) Plaintiff’s texts show that Plaintiff texted her then-husband that her “work” conversations would not finish until around 8:00 pm and an Uber would be sent to pick her up. (UMFs Nos. 64, 65; Mojtehedi Decl., ¶¶ 2, 4, Exh. L, RT 158-159.) Plaintiff’s then-husband texts back stating he could pick her up. (UMFs No. 66; Mojtehedi Decl., ¶ 4, Exhs. D, E, Exh. L, RT 158-159.) Throughout the exchanges, Plaintiff’s then-husband tells her that he has arrived at her place of work around 8:00 pm and that everything is padlocked. (Ibid.) While drinking in the bar, Plaintiff falsely tells him that she is still at work and will be done meeting around 9:30 p.m., at which time he could return to pick her up. (Ibid.) Plaintiff does not mention that she is fearful or that she is at a brewery. (UMFs Nos. 101-103; Mojtehedi Decl., ¶ 2, Exhs. D, E, ¶ 4, Exh. L, RT 158-159.)

In opposition, Plaintiff makes several unsupported accusations regarding her actions in the surveillance video. First, Plaintiff argues that Perez had Plaintiff’s phone for a period and “may have deleted the message[s].” (Plaintiff’s response citing its PUF, but not a specific one.) Second, Plaintiff challenges whether she actually toasted drinks throughout the night. (Response to UMFs No. 74.) Third, Plaintiff states that Defendants speculate about whether Plaintiff was “laughing and smiling” in the videos. (Response to UMFs No. 75.) Fourth, Plaintiff argues she was drugged by Perez and Arciniega with GHB. (Response to UMFs No. 87.) Plaintiff argues that even though her drug test results came back negative for everything except alcohol, this is because hospitals do not test for GHB. (Response to UMFs No. 126.) Finally, Plaintiff asserts that Perez/Perez groped her breasts and buttocks and penetrated her vagina with her finger multiple times, got on top of her in the back of Arciniega’s car, and penetrated her multiple times. (PUMFs No. 98; Consuelo Decl., ¶ 34.) The Court recites these assertions for context, although the Court finds that they are inadmissible.

“Sexual harassment consists of any unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature. [Citation.] It usually arises in two contexts. ‘Quid pro quo’ harassment conditions an employee’s continued enjoyment of job benefits on submission to the harassment. ‘Hostile work environment’ harassment has the purpose or effect of either interfering with the work performance of an employee or creating an intimidating workplace.’” (Beltran v. Hard Rock Hotel Licensing, Inc. (2023) 97 Cal.App.5th 865, 878, quoting Rieger v. Arnold (2002) 104 Cal.App.4th 451, 459.) The plaintiff employee must show “she was subjected to sexual advances, 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.” (Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 283; see also Gov. Code, ¶ 12923, subd. (a).) The employee must show a “concerted pattern of harassment of a repeated, routine, or a generalized nature.” (Lyle, supra, 38 Cal.4th at p. 283.) A single incident of harassing conduct is sufficient only if it is extremely severe. (Beltran, supra, 97 Cal.App.5th at p. 878.)

Sexual advances are unwelcome and unwanted if they sufficiently offend, humiliate, distress, or intrude upon its victim, to disrupt the victim’s emotional tranquility in the workplace, affect the victim’s ability to perform the job as usual, or otherwise interfere with and undermine the victim's personal sense of well-being. (Gov. Code, ¶ 12923, subd. (a).) The actions must be both objectively and subjectively offensive: “one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so.” (Faragher v. Boca Raton (1998) 524 U.S. 775, 787; Beyda v. City of Los Angeles (1998) 65 Cal.App.4th 511, 518-519.) Harassment under FEHA includes “verbal, physical, and visual harassment, as well as unwanted sexual advances.” (Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 280.)

The Court finds that the undisputed evidence shows that Perez’s actions toward Plaintiff were not unwelcome. The surveillance video shows that Perez’s conduct was not “subjectively offensive” because Plaintiff actively engaged in Perez’s conduct. Plaintiff initiated kissing Perez by first gesturing to her cheek for a kiss. When Perez put his arm around Plaintiff, Plaintiff reciprocated. Plaintiff kissed Perez multiple times, walked hand-in-hand with him towards the parking, and never indicated to her husband over text that she was afraid and being forced to do engage in conduct she did not what to engage in. Plaintiff does not dispute what is shown in the surveillance videos but contends that the descriptions of her conduct are “speculation.” It might be speculative to imagine what Plaintiff was thinking, but it is not speculation to describe what Plaintiff was doing.

Defendants have met their burden of showing no triable issue of material fact exists regarding whether Plaintiff was harassed by Perez and Arciniega.

As a matter of law, because no harassment occurred, no basis for FEHA harassment claim exists, and the Court GRANTS Fashion Logistics’ motion for summary judgment as to the failure to protect sexual harassment claim.

To prove no discrimination occurred and that Fashion Logistics is not liable for a discrimination claim, Defendants assert that because Perez and Arciniega have no supervisory authority or the ability to hire, discharge, or change the terms of a Fashion Logistics or Franco Vago employee’s compensation terms, Fashion Logistics did not discriminate against Plaintiff under FEHA. (UMFs Nos. 15-19, 25; Magherini Decl., ¶¶ 9-13.) Defendants also assert that they had no knowledge of prior instances of misconduct by Perez or Arciniega before the alleged assault, and thus had no reason to know the conduct would occur. (UMFs Nos. 23, 24, 31, 32; Magherini Decl., ¶¶ 12, 13.) Additionally, Defendants assert that Perez and Arciniega completed sexual harassment training. (UMFs Nos. 23, 31; Magherini Decl., ¶¶ 12, 13.)

In opposition, Plaintiff alleges that before leaving for the bar, Perez brought up her immigration status to pressure her into going to bar. (PUMFs No. 68; Consuelo Decl., ¶ 22.)

An employer may not discriminate on the basis of race, color, national origin, ancestry, or disabilities in hiring a person, discharging a person, in deciding the terms, conditions, or privileges of a person’s employment. (Gov. Code, ¶ 12940, subd. (a).) “Under FEHA, supervisory employees have the authority to perform personnel management duties such as the following: “(i) to hire, transfer, promote, assign, reward, discipline or discharge other employees, or to effectively recommend any of these actions; (ii) the responsibility to act on other employees’ grievances or effectively to recommend action on grievances; or (iii) the responsibility to direct other employees’ daily work activities.” (CACI 2525; Gov’t Code § 12926(r).) “Discrimination claims . . . arise out of performance of necessary personnel management duties.” (Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 63.)

The Court finds that the undisputed evidence shows no discrimination occurred because Perez and Arciniega were not in a position of authority to discriminate against Plaintiff. Perez and Arciniega did not work directly with Plaintiff and did not have the authority to make changes to her employment status. Additionally, Plaintiff left her work with Fashion Logistics before reporting the alleged conduct which led to her filing this action. Without knowing the cause of Plaintiff’s complaint, Fashion Logistics could not act to remedy the issue, especially towards Plaintiff, in a timely manner. Thus, Defendants have met their burden of showing no issue of material fact exists regarding whether Perez and Arciniega discriminated against Plaintiff. was harassed by Perez and Arciniega.

As a matter of law, because no discrimination occurred, no basis for FEHA discrimination claim exists, and the Court GRANTS Fashion Logistics’ motion for summary judgment as to the failure to protect from discrimination claim.

To prove lack of retaliation, Defendants present evidence that they were unaware of Plaintiff’s complaints and the alleged conduct at issue until almost two weeks after Plaintiff stopped returning to the Torrance Warehouse. On March 19, 2020, Fashion Logistics became aware of a letter sent to Fashion Logistics from Plaintiff’s counsel Belal Hamideh. (UMFs No. 38; Magherini Decl., ¶ 16, Exh. A.) After receiving this letter, Magherini spoke with Perez and Arciniega about the incident, began an investigation into the incident, and cooperated with law enforcement. (UMFs Nos. 39, 40; Magherini Decl., ¶ 17.)

In opposition, Plaintiff argues that Defendants knew about the incident because she reported and complained about the unlawful activity to supervisors Perez and Arciniega on March 6, 2020 while she was experienced harassment. (Opposition, p. 18:9-17.) Plaintiff asserts that Perez and Arciniega threatened her by mentioning her kids, stating they knew where she lived, and asking about her immigration status. (Consuelo Decl., ¶¶ 22, 26.) Plaintiff further argues that she suffered constructive discharge because of the treatment she received on March 6, 2020. (PUMFs No. 99; Consuelo Decl., ¶¶ 11, 14, 16.)

To establish FEHA 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.) Protected conduct includes “opposing any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part.” (Gov. Code § 12940, subd. (h).) “Once an employee establishes a prima facie case, the employer is required to offer a legitimate, nonretaliatory reason for the adverse employment action.” (Yanowitz, supra, 36 Cal.4th at p. 1042.) “If the employer produces 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 prove intentional retaliation.” (Ibid.)

The Court finds that undisputed evidence shows no retaliation occurred because Plaintiff left her work at Fashion Logistics before Fashion Logistics knew about the alleged harassment and had a chance to respond. The evidence shows that Plaintiff decided not to return the Torrance Warehouse after March 6, 2020 and did not discuss her reasons for doing so with anyone except Perez and Arciniega, nonsupervisory employees. Fashion Logistics had no knowledge of the incident until almost two weeks later when Fashion Logistics immediately began investigating the incident. Defendants did not discharge her for reporting any unlawful conduct. Thus, Defendants have met their burden of showing no issue of material fact exists regarding whether Plaintiff engaged in protected activity before leaving her position at Fashion Logistics.

As a matter of law, no basis for a FEHA retaliation claim exists, and the Court GRANTS Fashion Logistics’ motion for summary judgment as to the failure to protect from retaliation claim.

Fourth and Fifth Causes of Action for Illegal Failure and Refusal to Provide a Timely, Good Faith, Interactive Process and Failure and Refusal to Provide a reasonable accommodation in violation of FEHA

Defendants argue that Plaintiff never requested any accommodations nor informed Fashion Logistics that she had any physical or mental conditions requiring accommodations during her employment before or after March 6, 2020. (UMFs No. 37; Magherini Decl., ¶ 14, 15; Mojtehedi Decl., ¶ 4, Exh. L, RT 116-117.) Plaintiff never returned to the Torrance Warehouse after March 6, 2020, never contacted anyone from Fashion Logistics or Franco Vago, and Fashion Logistics never told Plaintiff or Lyneer that Plaintiff could not come back to work at Fashion Logistics. (Magherini Decl., ¶ 15.)

In opposition, Plaintiff argues Defendants should have initiated a timely interactive process once Defendants saw or knew about her disabilities. (Plaintiff’s response to UMFs No. 37.) Plaintiff states she tried to stop the mistreatment from happening because it caused her disabilities. (Ibid.) The accommodation Defendants should have offered after receiving the letter was firing Perez and Arciniega and communicating with Plaintiff. (Ibid.) Plaintiff provides no evidentiary support for this.

To prevail on a FEHA claim for failure to engage in interactive process, an employee must identify a reasonable accommodation that would have been available at the time the interactive process should have occurred. (Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1018-1019.) The employee cannot necessarily be required to identify and request all possible accommodations during the interactive process itself because employees do not have at their disposal the extensive information concerning possible alternative positions or accommodations which employers have. (Ibid.) However, once the parties engage in the litigation process, the employee must be able to identify an available accommodation the interactive process should have produced. (Ibid.)

The Court finds that the undisputed evidence shows Defendants did not fail to provide an interactive process and provide necessary accommodations for Plaintiff during her employment with Fashion Logistics because Defendants did not know about Plaintiff’s needs. The evidence shows that Defendants were unaware of Plaintiff’s disabilities until they received the letter from Plaintiff’s counsel on March 19, 2020. Plaintiff did not appear at the Torrance Warehouse after March 6, 2020 and did not report the incident to Defendants or Lyneer. Finally, Plaintiff’s identified accommodation (firing Perez and Arciniega and reaching out to her) were available during the alleged incident, but without knowledge of the incident Defendants could not act accordingly. Thus, Defendants have met their burden.

As a matter of law, no basis for these causes of action exists, and the Court GRANTS Fashion Logistics’ motion for summary judgment as to Plaintiff’s fourth and fifth causes of action.

Sixth Cause of Action for Wrongful Constructive Discharge in violation of FEHA

Defendants argue that Fashion Logistics had no knowledge or intent to create conditions which would force Plaintiff to resign from her position. Plaintiff never returned to the Torrance Warehouse after March 6, 2020, never contacted anyone from Fashion Logistics after leaving, and Fashion Logistics never told Plaintiff or Lyneer that Plaintiff could not return to work at Fashion Logistics. (Magherini Decl., ¶ 15.) The only individuals with knowledge of the alleged incident were Perez and Arciniega, nonsupervisory employees. (UMFs Nos. 15-19, 25; Magherini Decl., ¶¶ 9-13.)

In opposition, Plaintiff argues she suffered a constructive discharge because of the illegal mistreatment she experienced on March 6, 2020. (PUMFs No. 99; Consuelo Decl., ¶¶ 11, 14, 16.) Plaintiff alleges she assumed she would be fired if she did not continue to tell the facts Perez and Arciniega told her to tell. (Ibid.)

To establish constructive discharge, a plaintiff must prove by a preponderance of the evidence that the employer either “intentionally created or knowingly permitted working conditions that were so intolerable or aggravated at the time of the employee’s resignation that a reasonable employer would realize that a reasonable person in the employee’s position would be compelled to resign.” (Turner v. Anheuser-Busch, Inc., (1994) 7 Cal.4th 1238, 1251.) “[T]he requisite knowledge or intent must exist on the part of either the employer or those persons who effectively represent the employer, i.e., its officers, directors, managing agents, or supervisory employees.” (Ibid.)

The Court finds that the undisputed evidence shows that Fashion Logistics did not have the intent or knowledge to create an intolerable work environment. Defendants have demonstrated constructive discharge did not occur. The evidence shows that neither Fashion Logistics nor its officers, directors, or supervisors were aware of the facts that Plaintiff alleges led to her not returning to work until receiving the letter from Plaintiff’s counsel on March 19, 2020. Thus, Defendants have met their burden of showing no triable issue of material fact exists.

As a matter of law, the Court GRANTS Fashion Logistics’ motion for summary judgment as to the wrongful constructive discharge claim.

Seventh Cause of Action for Violation of Whistleblower Protection under Labor Code sections 6310, 6311, and 6400

“Any employee who is discharged, threatened with discharge, demoted, suspended, or in any other manner discriminated against in the terms and conditions of employment by his or her employer because the employee has made a bona fide oral or written complaint to the division, other governmental agencies having statutory responsibility for or assisting the division with reference to employee safety or health, his or her employer, or his or her representative, of unsafe working conditions, or work practices, in his or her employment or place of employment, or has participated in an employer-employee occupational health and safety committee, shall be entitled to reinstatement and reimbursement for lost wages and work benefits caused by the acts of the employer. Any employer who willfully refuses to rehire, promote, or otherwise restore an employee or former employee who has been determined to be eligible for rehiring or promotion by a grievance procedure, arbitration, or hearing authorized by law, is guilty of a misdemeanor.” (Lab. Code, § 6310, subd. (b).)

The Court finds that the undisputed evidence shows no basis for a whistleblower claim under Labor Code sections 6310, 6311, and 6400. The evidence shows that Plaintiff left Fashion Logistics on her own before filing her complaint or sending the letter to Fashion Logistics. Plaintiff left without telling Fashion Logistics, Lyneer, or any supervisory Fashion Logistics employee. The evidence also shows that Fashion Logistics did not discharge or threaten to discharge Plaintiff for making a complaint. Thus, Defendant has met its burden of showing no triable dispute of material fact exists.

As a matter of law, the Court GRANTS Fashion Logistics’ motion for summary judgment as to the whistleblower claim under Labor Code sections 6310, 6311, and 6400.

Eighth Cause of Action for Violation of Whistleblower Protection under Labor Code section 1102.5

“A claim for violation of Labor Code section 1102.5 requires ‘(1) the plaintiff establish a prima facie case of retaliation, (2) the defendant provide a legitimate, nonretaliatory explanation for its acts, and (3) the plaintiff show this explanation is merely a pretext for the retaliation.’ [Citation]” (Ross v. County of Riverside (2019) 36 Cal.App.5th 580, 591-592.) “To establish the first element, the plaintiff must show (1) the plaintiff engaged in protected activity, (2) the defendant subjected the plaintiff to an adverse employment action, and (3) there is a causal link between the two. [Citation]” (Ross v. County of Riverside (2019) 36 Cal.App.5th 580, 592.) “An employee engages in activity protected by the statute when the employee discloses ‘reasonably based suspicions’ of illegal activity. [Citation.]’” (Id.)

Based on the undisputed evidence above, the Courts finds that Plaintiff has no basis for a Whistleblower Protection claim under the Labor Code section 1102.5. The evidence shows Plaintiff refused to return to work at the Torrance Warehouse before reporting the alleged illegal conduct of Perez and Arciniega. The evidence does not support finding that Fashion Logistics retaliated against Plaintiff through adverse employment actions in response to her complaints. When Fashion Logistics learned about Plaintiff’s complaint, it immediately investigated her claims and cooperated with law enforcement. Thus, Defendant has met its burden of showing no triable dispute of material fact exists.

As a matter of law, the Court GRANTS Fashion Logistics’ motion for summary judgment as to the whistleblower protection claim under Labor Code section 1102.5

Ninth Cause of Action for Wrongful Harassment, Discrimination, and Retaliation in Violation of Public Policy

To establish public policy causes of action, the plaintiff must first show that the he or she was an “employee, applicant, unpaid intern or volunteer, or person providing services under a contract” with the defendant. (Gov. Code, ¶ 12940(j)(1).)

The Courts finds that the undisputed evidence shows that Plaintiff cannot sustain a public policy cause of action against Fashion Logistics because Perez and Arciniega’s actions cannot be imputed to Fashion Logistics. Neither Perez nor Arciniega are directors or supervisory employees according to the Labor Code. Additionally, Plaintiff fails to attack the credibility of Defendants’ evidence and failed to establish harassment, discrimination, or retaliation claims under FEHA. Thus, Defendant has met its burden of showing no triable dispute of material fact exists.

As a matter of law, the Court GRANTS Fashion Logistics’ motion for summary judgment as to Plaintiff’s public policy cause of action.

Tenth, Twelfth, and Thirteenth Causes of Action – Intentional Infliction of Severe Emotional Distress, Sexual Assault and Battery, and Gender Violence

The elements of a cause of action for intentional infliction of emotional distress are that: “(1) [the] defendant engaged in extreme and outrageous conduct (conduct so extreme as to exceed all bounds of decency in a civilized community) with the intent to cause, or with reckless disregard to the probability of causing, emotional distress; and (2) as a result, plaintiff suffered extreme or severe emotional distress.” (Berry v. Frazier (2023) 90 Cal.App.5th 1258, 1273.) The conduct must be directed at the plaintiff or occur in the presence of a plaintiff the defendant is aware of. (Ibid.) FEHA and public policy claims can form the basis of a cause of action for intentional infliction of emotional distress. (Fretland v. County of Humboldt (1999) 69 Cal.App.4th 1478, 1492.)

A person commits sexual battery if they: “(1) act with the intent to cause a harmful or offensive contact with an intimate part of another, and a sexually offensive contact with that person directly or indirectly results; (2) act with the intent to cause a harmful or offensive contact with another by use of the person’s intimate part, and a sexually offensive contact with that person directly or indirectly results; (3) act to cause an imminent apprehension of the conduct described in paragraph (1) or (2), and a sexually offensive contact with that person directly or indirectly results; or (4) cause contact between a sexual organ, from which a condom has been removed, and the intimate part of another who did not verbally consent to the condom being removed.” (Civ. Code, § 1708.5, subd. (a).)

Gender violence is a form of sex discrimination and means: “(1) One or more acts that would constitute a criminal offense under state law that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, committed at least in part based on the gender of the victim, whether or not those acts have resulted in criminal complaints, charges, prosecution, or conviction; or (2) A physical intrusion or physical invasion of a sexual nature under coercive conditions, whether or not those acts have resulted in criminal complaints, charges, prosecution, or conviction.”

Defendants argue all Plaintiff’s tort causes of action fail as a matter of law because Plaintiff has not presented evidence proving that Defendants knew about Perez and Arciniega’s conduct. (Motion, pp. 13-16:1-10.) Because Perez and Arciniega were nonsupervisory employees, they did not commit the alleged acts within the course of their employment for employers, and Defendants did not encourage Perez and Arciniega to engage in the alleged conduct, Plaintiff cannot impute the conduct at issue onto Defendants. (Ibid.)

Defendants present the results of Plaintiff’s Sexual Assault Evidence Kit (SART) and Plaintiff’s drug test at Providence Little Company of Mary Medical Center in San Pedro. The SART results detected DNA from Juan Castaneda, Plaintiff’s then-husband, in and on Plaintiff’s vagina and vulva. (Mojtehedi Decl., ¶ Exh. D, at pp. 4, 12.) The exam found Perez’s DNA under a fingernail on Plaintiff’s right hand. (Mojtehedi Decl., ¶ Exh. D, at p. 8.) Plaintiff took a drug test on March 7, 2020. (Mojtehedi Decl., ¶ Exh. M, at p. 3-5.) Plaintiff tested negative for drugs and positive for alcohol. (Ibid.) The report notes that Plaintiff showed no signs of head trauma or any other physical trauma. (Ibid.)

In opposition, Plaintiff argues that Defendants did know of Perez and Arciniega’s acts because she told Defendants by telling Arciniega and Perez on the night of the alleged acts. Plaintiff states she was drugged with GHB, which the hospital test did not include, and that she continues to suffer mentally and physically from the incident.

The Court finds that the undisputed evidence shows that Plaintiff cannot hold Fashion Logistics liable for the tortious claims based on acts committed by Perez and Arciniega because neither was a supervisory employee. As mentioned above, Defendants were unaware of the alleged conduct until receiving the March 19, 2020 from Plaintiff’s counsel. The evidence also shows that Fashion Logistics did not encourage Perez and Arciniega to engage in harmful conduct towards Plaintiff. After learning about Plaintiff’s complaint, Fashion Logistics immediately investigated Plaintiff’s allegations and cooperated with law enforcement. The SART and drug test results show Perez did not rape or drug Plaintiff because his DNA was only found on her right hand rather than in or near her genitals. Plaintiff does not present evidence to challenge the credibility of Defendants’ evidence or actions. Thus, Fashion Logistics has met its burden of showing no triable dispute of material fact exists.

As a matter of law, the Court GRANTS Fashion Logistics’ motion for summary judgment as to Plaintiff’s tenth, twelfth, and thirteenth causes of action.

To establish willful misconduct, the plaintiff must establish the elements of negligence and that the defendant had (1) actual or constructive knowledge of the peril to be apprehended, (2) actual or constructive knowledge that injury is probable, as opposed to a possible, result of the danger, and (3) conscious failure to act avoid the peril.” (Doe v. United States Youth Soccer Ass’n, Inc. (2017) 8 Cal.App.5th 1118, 1140.) Constructive knowledge exists where a person should have known about a particular danger or risk. (Ibid.)

Defendants argue they had no knowledge of Perez and Arciniega’s alleged unlawful conduct until they received the letter from Plaintiff’s counsel on March 19, 2020. (UMFs No. 38; Magherini Decl., ¶ 16, Exh. A.) Prior to receiving this letter, Perez and Arciniega had no known prior instances of sexual assault, harassment, or discrimination. (UMFs Nos. 23, 24, 31, 32; Magherini Decl., ¶¶ 12, 13.) Additionally, Defendants assert that Perez and Arciniega completed sexual harassment training. (UMFs Nos. 23, 31; Magherini Decl., ¶¶ 12, 13.)

In opposition, Plaintiff states that Defendants perpetrated outrageous misconduct toward her with the intent to recklessly cause emotional distress and the Defendants knew of the peril and harm caused, because she told Perez and Arciniega on March 6, 2020, but failed to act to avoid the harm. (Opposition, p. 23:4-8.)

The Court finds that the undisputed evidence shows that Plaintiff cannot hold Defendants liable for willful misconduct based on acts committed by Perez and Arciniega because neither was a supervisory employee. Perez and Arciniega were nonsupervisory employees who worked separately from Plaintiff. Defendants were unaware of the alleged conduct until receiving the letter on March 19, 2020. In response to the letter, Defendants immediately investigated Plaintiff’s allegations and cooperated with law enforcement. Plaintiff does not present evidence to challenge the credibility of Defendants’ evidence regarding subsequent steps Fashion Logistics took once learning about Plaintiff’s complaint. Thus, Defendant has met its burden of showing no triable dispute of material fact exists.

As a matter of law, the Court GRANTS Fashion Logistics’ motion for summary judgment as to Plaintiff’s willful misconduct cause of action.

Fourteenth Cause of Action for Violation of the Unfair Business Practices Act

To state a claim under Unfair Business Practices Act, the plaintiff must show that members of public are likely to be deceived. (Bank of the West v. Superior Court (1992) 2 Cal.4th 1254, 1266-1267.) “Virtually any law—federal, state or local—can serve as a predicate for a[n] Unfair Competition Law action.” (State Farm Fire & Casualty Co. v. Superior Court (1996) 45 Cal.App.4th 1093, 1102-1103.) However, if the statutory basis for the claim fails, so does the derivative Unfair Competition Law claim. (Aleksick v. 7-Eleven, Inc. (2012) 205 Cal.App.4th 1176, 1185.)

The Court finds that the undisputed evidence shows that Plaintiff’s Unfair Competition claim fails because all the claims on which Plaintiff based this claim also fail.

As a matter of law, the Court GRANTS Fashion Logistics’ motion for summary judgment as to the Unfair Business Practices Act cause of action.

A plaintiff may recover punitive damages if the plaintiff proves by “clear and convincing evidence that the defendant [employer] has been guilty of oppression, fraud, or malice[.]” (Civ. Code, § 3294, subd. (a).) “An employer shall not be liable for damages pursuant to subdivision (a), based upon acts of an employee of the employer, unless the employer had advanced knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice.” (Civ. Code, § 3294, subd. (b).) With respect to a corporate employer, “punitive damages cannot be awarded against a corporation for conduct of an employee unless a corporate officer, director, or managing agent had knowledge of the employee’s unfitness and disregarded the rights of others (or authorized/ratified the conduct or committed the act of oppression).” (Myers v. Trendwest Resorts, Inc. (2007) 148 Cal.App.4th 1403, 1436.) A defendant is guilty of fraud, malice or oppression if the evidence shows the defendant “engaged in despicable conduct, or conduct intended to cause injury to plaintiff.” (Scott v. Phoenix Schools, Inc. (2009) 175 Cal.App.4th 702, 716.)

The Court finds that the undisputed evidence shows Fashion Logistics had no advanced knowledge of Perez and Arciniega being unfit employees, nor did Fashion Logistics ratify their actions. Fashion Logistics is a corporate employer. Fashion Logistics had no advanced knowledge of Perez and Arciniega’s unfitness as employees or the acts Plaintiff alleges. Perez and Arciniega were not officers, directors, or managing agents of Fashion Logistics, nor were any officers, directors, or managing agents aware of Perez and Arciniega’s conduct until Fashion Logistics received the letter from Plaintiff’s counsel on March 19, 2020. When Fashion Logistics learned of the alleged conduct, Fashion Logistics immediately began an investigation, cooperated with law enforcement, and reached out to Lyneer for more details about Plaintiff’s complaint to learn the full facts of the incident. Thus, Defendant has met its burden of showing no triable dispute of material fact exists.

As a matter of law, the Court GRANTS Fashion Logistics’ motion for summary judgment regarding Punitive Damages.

Defendants’ evidence – including video footage of the events in question and Plaintiff’s duplicitous text messages to her former husband – demonstrate that Plaintiff’s Complaint and Declaration are substantially untrue. The admissible evidence prevents a reasonable trier of fact from finding that Plaintiff can establish essential elements of her causes of action. Plaintiff has failed to offer admissible evidence to raise a dispute of material fact.

[1] Plaintiff refers to Joseph Perez as Perez, Lopez, and Lopez/Perez throughout her separate statement and opposition.

[2] Other factors considered include: “payment of salary or other employment benefits and Social Security taxes, the ownership of the equipment necessary to performance of the job, the location where the work is performed, the obligation of the defendant to train the employee, the authority of the defendant to hire, transfer, promote, discipline or discharge the employee, the authority to establish work schedules and assignments, the defendant’s discretion to determine the amount of compensation earned by the employee, the skill required of the work performed and the extent to which it is done under the direction of a supervisor, whether the work is part of the defendant’s regular business operations, the skill required in the particular occupation, the duration of the relationship of the parties, and the duration of the plaintiff’s employment.” (Vernon v. State of California (2004) 116 Cal.App.4th 114, 125.)

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