Judge Bruce G. Iwasaki, Case Number: 22STCV33677, Date: 2024-07-09 Tentative Ruling

Tentative Ruling: The motion for summary judgment is denied. The motion for summary adjudication is denied.

This is an employment law action based on alleged disability discrimination and retaliation. Plaintiff Naomi Tomita (Plaintiff) sues her former employer, Defendant City of Hawthorne (the City), alleging the following. During the course of her employment in the Office of the Hawthorne City Attorney, Plaintiff developed work-related injuries. Between January 2019 and August 2020, she underwent procedures on her wrists, right elbow, and right shoulder for those injuries. Her treating physician eventually allowed her to return to work with restrictions. However, by November 5, 2021, those restrictions had been removed. Despite the fact that since March 2, 2021, she had been performing her duties without the need for accommodations, and her treating surgeon provided notes stating that she could return to work without any restrictions, the City (among other things) refused to allow her to continue to work as an Administrative Aide II or accommodate her for different positions. In addition, the City filed disability retirement paperwork for Plaintiff even though Plaintiff did not wish to retire.

The operative complaint asserts only one “cause of action” for various violations of the Fair Employment and Housing Act (“FEHA”).

To the extent each of those violations constitutes a separate cause of action, Plaintiff is bringing the following claims against the City: (1) discrimination based on actual or perceived disability, (2) retaliation for filing workers’ compensation claims and requiring reasonable accommodations, (3) failure to give reasonable accommodations, (4) failure to engage in a good faith interactive process, and (5) failure to prevent the discrimination and retaliation from occurring.

The City now moves for summary judgment or, in the alternative, summary adjudication of each of those claims. Plaintiff opposes the motion.

Plaintiff’s objections to the City’s evidence are ruled as follows: Nos. 1, 2, 4-26 are sustained. No. 3 is overruled.

“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).)

Defendant moves for summary judgment or adjudication, arguing that Plaintiff’s claims for disability discrimination (Issue Nos. 1-2), retaliation (Issue No. 3), failure to provide reasonable accommodation (Issue No. 4), failure to engage in interactive process (Issue No. 5), and failure to prevent discrimination and retaliation (Issue No. 6) have no merit.

As an initial matter, Plaintiff argues that the Court should deny the motion because the City’s separate statement failed to comply with the California Rules of Court.

California Rules of Court require that “[i]f summary adjudication is sought, whether separately or as an alternative to the motion for summary judgment, the specific cause of action, affirmative defense, claims for damages, or issues of duty must be stated specifically in the notice of motion and be repeated, verbatim, in the separate statement of undisputed material facts.” (Cal. Rules of Court, rule 3.1350(b) [emphasis added].)

As Plaintiff points out, the City’s separate statement does not state “Issue No. 1” and also fails to state, verbatim, the rest of the issues (Nos. 2-6).

Nevertheless, the Court declines to reject the motion based on those defects because Plaintiff has not argued or explained how those defects impaired her ability to oppose the motion, and the defects are not substantive (i.e., Plaintiff is not arguing, for example, that the separate statement does not contain material facts). (See Truong v. Glasser (2009) 181 Cal.App.4th 102, 118 [holding that the trial court did not abuse its discretion by declining to reject the summary judgment motion based on the absence of headings within a separate statement of material facts because “[t]he facts critical to the ruling were adequately identified, and [the plaintiffs had] not explained how any alleged deficiency in [the separate statement] impaired [their] ability to marshal evidence to show that material facts were in dispute …”].)

Under the first two issues, the City argues that Plaintiff cannot establish a prima facie case for discrimination, and it had legitimate, non-discriminatory reasons for its actions.

Government Code section 12940, subdivision (a) makes it “unlawful” “[f]or an employer, because of the … physical disability … of any person, ... to discriminate against the person in compensation or in terms, conditions, or privileges of employment.”

“In general, there are two types of illegal employment discrimination under FEHA: disparate treatment and disparate impact.” (Jones v. Department of Corrections & Rehabilitation (2007) 152 Cal.App.4th 1367, 1379.) “‘Disparate treatment’ is intentional discrimination against one or more persons on prohibited grounds. [Citations.] … [On the other hand] ‘disparate impact,’ … [takes place, for example, when] regardless of motive, a facially neutral employer practice or policy, bearing no manifest relationship to job requirements, … [has] a disproportionate adverse effect on members of the protected class.’” (Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 354, fn. 20 (“Guz”) [italics removed].)

Here, the complaint alleges that Plaintiff suffered disparate treatment (intentional discrimination based on disability).

“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,” known as the McDonnell Douglas test. (Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1004 (“Scotch”); McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 802–804.) “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.” (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354.) The McDonnell Douglas test is inapplicable where the plaintiff presents direct evidence of discrimination, that is, evidence which, if believed, proves the fact of discriminatory animus without inference or presumption. (Trop v. Sony Pictures Entertainment, Inc. (2005) 129 Cal.App.4th 1133, 1144–1145.)

“Under the first step of the McDonnell Douglas test, the plaintiff may raise a presumption of discrimination by presenting a ‘“prima facie case,”’ the components of which vary depending upon the type of discrimination alleged. [Citation.]” (Zamora v. Security Industry Specialists, Inc. (2021) 71 Cal.App.5th 1, 31 (“Zamora”).) “Under the second step of the McDonnell Douglas test, ‘the employer may dispel the presumption merely by articulating a legitimate, nondiscriminatory reason for the challenged action.’” (Id. at p. 32 [internal citations removed].) “Under the third step of the test, the ‘plaintiff must ... have the opportunity to attack the employer’s proffered reasons as pretexts for discrimination, or to offer any other evidence of discriminatory motive.’ [Citation.]” (Ibid.)

However, “[w]hen seeking summary judgment or summary adjudication in an employment discrimination case, the burdens established by the McDonnell Douglas framework are altered.” (Zamora, supra, 71 Cal.App.5th at p. 32.)

“If the employer presents admissible evidence either that one or more of plaintiff’s prima facie elements is lacking, or that the adverse employment action was based on legitimate, nondiscriminatory factors, the employer will be entitled to summary judgment unless the plaintiff produces admissible evidence which raises a triable issue of fact material to the defendant’s showing.” (Caldwell v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 203.)

“‘On a disability discrimination claim, the prima facie case requires the plaintiff to show ‘he or she (1) suffered from a disability, or was regarded as suffering from a disability; (2) could perform the essential duties of the job with or without reasonable accommodations, and (3) was subjected to an adverse employment action because of the disability or perceived disability.’ [Citation.]” (Wills v. Superior Court (2011) 195 Cal.App.4th 143, 159–160 [emphasis added].)

Plaintiff “began to experience pain in 2004 or 2005 that consisted of a burning sensation in her wrists followed by discomfort at night sleeping. There was more pain in her right hand, and she is right-handed.” (Plaintiff’s response to moving party’s separate statement of undisputed material facts, filed June 25, 2024 (the “Parties’ UMF”), ¶ 2.) Then, in 2007, Plaintiff “began to experience discomfort in her right upper …. This was pain in her right shoulder and had trouble lifting her right arm past her shoulder level and began receiving treatment from an orthopedic doctor and physical therapy.” (Parties’ UMF, ¶ 3.)

“Plaintiff … filed workers’ compensation claims related to her alleged repetitive motion injuries to her wrist and shoulder from 2007 to 2018.” (Parties’ UMF, ¶ 4.) In January 2019, she underwent a right wrist carpal tunnel release and open decompression of the ulnar nerve at the right elbow. (Parties’ UMF, ¶ 5.) After that procedure, Plaintiff was placed on leave from work until March 2021. (Parties’ UMF, ¶ 5.) While on leave from work, Plaintiff underwent a left-wrist carpal tunnel release in July 2019. (Parties’ UMF, ¶ 5.) In August 2020, while still on leave, Plaintiff underwent a right shoulder arthroscopic surgery. (Parties’ UMF, ¶ 10.)

On July 19, 2021, approximately five (5) months after returning from leave in March 2021, Plaintiff attended a medical examination performed by Qualified Medical Examinator (“QME”) Dr. Thomas Montell (“Dr. Montell”) as part of her workers’ compensation claim. (Parties’ UMF, ¶ 13.) “Plaintiff told Dr. Montell that she performs approximately 1.5 hours of typing a day at work and Dr. Montell prepared a report that restricted [her] to typing no more than 1.5 hours a day and lifting more than six pounds.” (Parties’ UMF, ¶ 13.)

The only substantive declaration the City offered in support of this motion is from Samuel English, the City’s Risk Specialist in the City Attorney’s office. He testified that the City was not able to accommodate Plaintiff in her Administrative Aide II position based on the typing restriction that Dr. Montell had imposed on her and that the amount of typing required for the Administrative Aide II position “was endangering [Plaintiff’s] health.” (Motion, English Decl., ¶ 11.)

However, a declarant must provide the requisite preliminary facts to show he has personal knowledge about what he has said. (Evid. Code, § 702, subd. (a) [“Subject to Section 801, the testimony of a witness concerning a particular matter is inadmissible unless he has personal knowledge of the matter. Against the objection of a party, such personal knowledge must be shown before the witness may testify concerning the matter”].) “[B]oilerplate sentence, ‘if called as a witness I could and would competently testify under oath to the above facts which are personally known to me,’ is not sufficient to establish personal knowledge.” (Gamboa v. Northeast Community Clinic (2021) 72 Cal.App.5th 158, 169.) “Where the facts stated do not themselves show it, such bare statement of the affiant has no redeeming value and should be ignored.” (Snider v. Snider (1962) 200 Cal.App.2d 741, 754.)

Further, “[t]he proponent of the proffered evidence has the burden of producing evidence as to the existence of the preliminary fact, and the proffered evidence is inadmissible unless the court finds that there is evidence sufficient to sustain a finding of the existence of the preliminary fact, when: ¶ (1) The relevance of the proffered evidence depends on the existence of the preliminary fact ….” (Evid. Code, § 403, subd. (a)(1).)

Here, English has not laid a foundation or shown that he has personal knowledge for his testimony that the City could not accommodate Plaintiff in her Administrative Aide II position and that the amount of typing required for that position was endangering Plaintiff’s health. He did not promulgate or enforce personnel policies, did not supervise Plaintiff or play a decisive role in Plaintiff’s employment, did not know who decided whether Plaintiff would be accommodated, did not research voice-to-text software, and does not know if anyone did, and fails to explain why the City did not accommodate Plaintiff’s typing restrictions. The English declaration is almost entirely inadmissible.

Therefore, the Court finds that the City has failed to meet its initial burden of proving that Plaintiff was not able to perform her essential job duties without reasonable accommodations.

However, even if the City met that burden, Plaintiff has met her burden of showing that a triable issue exists by testifying that (1) she did not believe she needed any accommodations to do her job in the first place and (2) could not in good faith sign documents certifying that she could not perform her job because she knew she could. (Plaintiff’s Compendium of Evidence, filed on June 25, 2024 (“COE”), Exhibit A – Declaration of Naomi Tomita (“Plaintiff Decl.”), ¶¶ 15, 17.)

The City also moves for summary adjudication of the disability discrimination claim, arguing that it had a legitimate, non-discriminatory reason for “medically separating” Plaintiff from her employment, and that reason is that Plaintiff “could not be reasonably accommodated as an Administrative Aide II.” (Motion, pp. 24:22-25:2.)

As stated above, the City has failed to establish that Plaintiff could not be reasonably accommodated as an Administrative Aide II.

Therefore, the City has also failed to establish that the City had legitimate, non-discriminatory reasons for medically separating Plaintiff from her employment. Accordingly, the burden does not shift to Plaintiff to show that a triable issue exists as to that issue.

For those reasons, the request for summary adjudication of the disability claim is denied.

“California cases hold that in order to establish a prima facie case of retaliation under the FEHA, 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.)

Here, the City moves for summary adjudication of the retaliation claim, arguing that “Plaintiff has not produced specific, substantial evidence to show that Defendant’s legitimate, non-discriminatory reasons for its actions were pretext for retaliation and/or there is a lack of causal link.” (Notice of Motion, p. 2:9-14.)

The City argues that its legitimate, non-retaliatory reason for separating Plaintiff from her position was the fact that “Plaintiff could not be reasonably accommodated in her Administrative Aide II position or any alternative position she was qualified for.” (Motion, p. 27:5-7.)

However, as stated above, the City has failed to meet its initial burden of showing that Plaintiff could not be reasonably accommodated.

In any event, when it comes to retaliation cases under FEHA, “‘[t]he central issue is and should remain whether the evidence as a whole supports a reasoned inference that the challenged action was the product of discriminatory or retaliatory animus.’” (Light v. Department of Parks & Recreation (2017) 14 Cal.App.5th 75, 94 [emphasis added].) “‘The employer’s mere articulation of a legitimate reason for the action cannot answer this question; it can only dispel the presumption of improper motive that would otherwise entitle the employee to a judgment in his favor.’” (Ibid.)

“[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. That, and not ‘pretext,’ must be the focus of the judicial inquiry.” [Citations.]’” (Ibid. [emphasis removed].) “‘[S]ummary judgment should not be granted unless the evidence cannot support any reasonable inference for plaintiff.’ [Citation.]” (Ibid.)

Here, Plaintiff has provided evidence allowing a reasonable inference that the City’s reason for separating her from her employment was retaliatory. Robert Kim (“Kim”), the Hawthorne City Attorney, was Plaintiff’s “ultimate superior …” when she worked as an Administrative Aide II. (Opposition, 4:11-12.) During his deposition, Kim testified that any decision concerning Plaintiff’s reasonable accommodations and whether Plaintiff would be able to return to work would fall on him. (Plaintiff’s Compendium of Evidence, filed on June 25, 2024 (“COE”), Exhibit F (“Kim Depo.”), pp. 37:24-38:6; 40:21-22.) Kim also testified that when Plaintiff returned from her leave of absence, he preferred that she did not type at all to prevent her from claiming that she re-aggravated her injury because of typing. (Kim Depo., pp. 40:21-22; 54:16-22.) Kim was “very cautious about [Plaintiff] bringing a lawsuit in addition to workers’ comp cases for other reasons. So [he] didn’t really – … want to have too much interaction with her, nor do [he] feel that that was necessary because [he] was so preoccupied with so many other things at that point, at that time.” (Kim Depo., p. 55:5-8.) The fact that Kim wanted to prevent her from typing because of her perceived disability supports an inference that the City’s separation of Plaintiff from her position was for retaliatory reasons. In addition, the complaint alleges that at one point during her employment, City Manager Vontray Norris (“Norris”) summarily relieved Ms. Tomita from her duties indefinitely and without pay on November 29, 2021. Plaintiff testified during her deposition that on that day, Norris, English, and a union representative walked into her office and told her that even though she was a great worker and did an excellent job, she would have to leave work because she filed her workers’ compensation claim. (COE, Exhibit G (“Plaintiff Depo.”), pp. 106:6-107:10.) This presents a triable issue of fact that the City’s reason for separating Plaintiff from her employment was motivated by retaliatory animus.

The City argues that Plaintiff cannot show a causal link between her alleged protected activity of filing a workers’ compensation claim and the alleged adverse employment action because she filed that workers’ compensation claim in 2019, and the medical separation from her job occurred about three years later in December 2022. (Motion, p. 26:12-17.)

“‘“The causal link may be established by an inference derived from circumstantial evidence, ‘such as the employer’s knowledge that the [employee] engaged in protected activities and the proximity in time between the protected action and allegedly retaliatory employment decision.’” [Citation.]’ [Citation.]” (Morgan v. Regents of University of Cal. (2000) 88 Cal.App.4th 52, 69.)

“A long period between an employer’s adverse employment action and the employee’s earlier protected activity may lead to the inference that the two events are not causally connected. [Citation.]” (Wysinger v. Automobile Club of Southern California (2007) 157 Cal.App.4th 413, 421 (“Wysinger”).) “But if between these events the employer engages in a pattern of conduct consistent with a retaliatory intent, there may be a causal connection.” (Ibid.)

Here, even if it is true that there was a long period between the date Plaintiff filed her workers’ compensation claim and the date she was separated from her employment, Plaintiff has met her burden of showing that a triable issue exists regarding whether the City engaged in a pattern of conduct consistent with a retaliatory intent sufficient to establish a causal connection. As stated above, Plaintiff testified during her deposition that Norris, English, and a union representative walked into Plaintiff’s office in November 2021 (years after Plaintiff filed her workers’ compensation claim) and informed her that she was being released from work that day because she had filed the claim. Plaintiff testifies that after that interaction, she received a letter dated November 29, 2021, from Norris, stating that the City was “currently unable to return [her] to [her] fully regular work duties in [her] usual and customary position of Administrative Aide II.” (COE, Exhibit N – a copy of the letter, p. 1.) Plaintiff testifies that even though in that letter, Norris claimed that the City had hired Show HR Consulting to assist with the “continuation of Plaintiff’s disability interactive process,” the City had not engaged in any form of interactive process before that time and, therefore, there was nothing to continue. (COE, Exhibit A (Plaintiff’s Decl.), ¶ 11.) The Court finds through that evidence Plaintiff has shown triable issues exist regarding whether a causal link exists between her filing her workers’ compensation claim and the City’s decision to separate her from her employment.

For those reasons, the request for summary adjudication of the retaliation claim is denied.

Under FEHA, it is unlawful “[f]or an employer or other entity covered by this part to fail to make reasonable accommodation for the known physical or mental disability of an applicant or employee.” (Gov. Code, § 12940, subd. (m)(1).)

“The essential elements of a claim of failure to accommodate are: (1) the plaintiff has a disability covered by FEHA; (2) the plaintiff is a qualified individual; and (3) the employer failed to reasonably accommodate the plaintiff’s disability.” (Furtado v. State Personnel Bd. (2013) 212 Cal.App.4th 729, 744 (“Furtado”).)

“‘The elements of a failure to accommodate claim are similar to the elements of a ... [FEHA] discrimination claim, but there are important differences.’” (Furtado, supra, 212 Cal.App.4th at p. 744.)

“‘For purposes of [a failure to accommodate] claim, the plaintiff [has to] prove[] he or she is a qualified individual by establishing that he or she can perform the essential functions of the position to which reassignment is sought, rather than the essential functions of the existing position. [Citations.] More significantly, the third element ... establishing that an “adverse employment action” was caused by the employee’s disability—is irrelevant to … [a failure to accommodate] claim. Under the express provisions of the FEHA, the employer’s failure to reasonably accommodate a disabled individual is a violation of the statute in and of itself. [Citation.]’ [Citation.]” (Furtado, supra, 212 Cal.App.4th at p. 744-745 [emphasis added].)

Here, the City moves for summary adjudication of the failure to accommodate claim, arguing that it lacks merit because “Plaintiff was accommodated in her Administrative Aide II position until she could no longer be accommodated with or without reasonable accommodation based on her permanent work restrictions and/or could not perform her duties in a manner that would not endanger her health or safety.” (Notice of Motion, p. 2:15-20.)

However, the Court has sustained Plaintiff’s evidentiary objections to English’s testimony that Plaintiff could not be accommodated and could not perform her duties in a manner that would not endanger her health or safety. Therefore, the City has no evidence to support its factual contention.

The City also argues that it accommodated Plaintiff because it gave Plaintiff a leave of absence that extended over two years. (Motion, p. 28:1-4.)

However, Plaintiff’s failure to accommodate claim (and her entire action) is based on events that occurred after she returned from that leave, not before. Therefore, it is irrelevant for purposes of the failure to accommodate claim that the City gave her that leave of absence.

For those reasons, the Court finds that the City has failed to meet its initial burden of showing that Plaintiff’s failure to accommodate claim has no merit. Therefore, the burden does not shift to Plaintiff to show that a triable issue exists as to that claim.

Accordingly, the request for summary adjudication of the failure to accommodate claim is denied.

“Under FEHA, it is an unlawful practice for an employer to fail to engage in a good faith interactive process with the employee to determine an effective reasonable accommodation if an employee with a known physical disability requests one.” (Brown v. Los Angeles Unified School Dist. (2021) 60 Cal.App.5th 1092, 1109.)

Here, the City moves for summary adjudication of the failure to engage claim, arguing the following. “[1] The undisputed material facts show that Defendant was engaged with Plaintiff in the interactive process for several years until Plaintiff could not be accommodated in her position of Administrative Aide II because of her permanent restrictions related to her physical disability. [2] Other positions were considered for Plaintiff and Plaintiff rejected the three positions she was minimally qualified for. [3] Finally, the City considered Plaintiff’s request for voice activation software but determined that this request was not practical for Plaintiff’s position and would not be sufficient to enable Plaintiff to perform her essential job duties.” (Motion, p. 32:8-15.)

As to the second argument, the Court has sustained Plaintiff’s objections to the portion of English’s declaration that the City relies on to argue that the City considered and denied Plaintiff’s request for voice activation software. (Motion, English Decl., ¶ 7.)

To support its second argument, that other positions were considered for Plaintiff and Plaintiff rejected the three positions she was minimally qualified for, the City submits Plaintiff’s deposition transcripts. During her deposition, Plaintiff conceded that she was offered three positions but did not want them because they would affect her retirement and offered lower pay than the Administrative Aide II position. (Motion, Declaration of Steven H. Taylor, ¶ 3; Exhibit 2 – a copy of Plaintiff’s deposition transcript, pp. 150:13-151:22 [“Oh. I felt a lot of pressure because I wanted to show that I was cooperative with the interactive process even though it didn’t make sense for me to apply for - - for the positions in the long run because of the pay cut and - - and the hour cut. It’s a part-time position and it would affect my retirement. My retirement is based on the end of my salary. It doesn’t make sense to go backwards. It’s not a comparable position to even consider, but since they were throwing me the - - the rotten crumbs as my options I wanted to be - - to show that at least I was willing to work in this interactive process”].)

However, an “‘employer’s obligation to engage in the interactive process extends beyond the first attempt at accommodation and continues when the employee asks for a different accommodation or where the employer is aware that the initial accommodation is failing and further accommodation is needed. This rule fosters the framework of cooperative problem-solving contemplated by the ADA, by encouraging employers to seek to find accommodations that really work ....’ [Citation.]” (Scotch, supra, 173 Cal.App.4th at p. 1013 [italics added].)

Here, the City has not presented evidence that once Plaintiff rejected being demoted to positions at lower pay, it attempted to further accommodate Plaintiff. Merely arguing that it offered Plaintiff positions and that Plaintiff rejected those positions is, without more, insufficient to establish an “interactive process.” Attempting to transfer an employee to a lower paid position is an adverse employment action, not evidence of a meaningful and good faith dialogue.

Therefore, the Court finds that the City has failed to meet its initial burden of showing that Plaintiff’s failure to engage claim has no merit. Accordingly, the burden does not shift to Plaintiff to show that one or more issues of material fact exist as to that claim.

For those reasons, the request for summary adjudication of the failure to engage claim is denied.

Summary adjudication of the failure to prevent discrimination and retaliation claim is denied because the Court has found that (1) the City has failed to meet its initial burden of showing that the disability discrimination claim lacks merit and (2) triable issues exist as to the retaliation claim.

The motion for summary judgment is denied. The motion for summary adjudication is denied.

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