Judge Christopher K. Lui, Case 18STCV08324 2022-12-15 Tentative Ruling

Judge: Christopher K. Lui, Case: 18STCV08324, Date: 2022-12-15 Tentative Ruling

Case Number: 18STCV08324 Hearing Date: December 15, 2022 Dept: 76

Pursuant to California Rule of Court 3.1308(a)(1), the Court does not desire oral argument on the motion addressed herein. As required by Rule 3.1308(a)(2), any party seeking oral argument must notify ALL OTHER PARTIES and the staff of Department 76 of their intent to appear and argue. Notice to Department 76 may be sent by email to smcdept76@lacourt.org or telephonically at 213-830-0776. If notice of intention to appear is not given and the parties do not appear, the Court will adopt the tentative ruling as the final ruling.

Plaintiff alleges that she suffered harassment and discrimination based upon her pregnancy and related complications, need for accommodations and/or the need for protected finite medical leave. Plaintiff alleges that she was denied incentive payments, had the total number of hours of compensation reduced, her salary reduced, and was demoted to an hourly employee.

Plaintiff Deirdre Logan moves for summary adjudication.

TENTATIVE RULING

Plaintiff Deirdre Logan’s moves for summary adjudication is DENIED as to Issues Nos. 1 – 9 regarding the following causes of action: second, third, fourth, fifth, seventh, eighth, ninth and tenth causes of action.

ANALYSIS

Motion For Summary Adjudication

Evidentiary Objections

Pursuant to CCP § 437c(q), the Court declines to rule on either Defendant’s or Plaintiff’s evidentiary objections, as they are asserted against evidence which the Court does not deem to be material to the disposition of this motion.

Discussion

On October 20, 2021, the Court granted defendant’s motion for summary adjudication as to the fourteenth cause of action for fraudulent misrepresentation of fact and fifteenth cause of action for negligent misrepresentation of fact.

Plaintiff Deirdre Logan moves for summary adjudication as to the following causes of action: second, third, fourth, fifth, seventh, eighth, ninth and tenth causes of action. As such, Defendant’s argument in the Opposition that Plaintiff is actually seeking summary judgment is incorrect. Summary judgment is only appropriate where a party demonstrates that no triable issue of material fact exists as to all remaining causes of action. Here, Plaintiff does not seek entry of judgment in her favor as to the first, sixth, eleventh, twelfth and thirteenth causes of action.

1. ISSUE ONE: “Plaintiffs Second Cause of Action for Actual/Perceived Disability Discrimination, in violation of the FEHA, Cal. Gov. Code § 12940 et. seq., must be adjudicated in favor of Plaintiff because Defendant discriminated against Plaintiff due to her perceived and/or actual disabilities by subjecting Plaintiff to adverse actions due to her perceived and/or actual disabilities.”

Plaintiff alleges that her disabilities were her pregnancy and complications from pregnancy. (3AC, ¶ 30.)

Plaintiff alleges at ¶ 35(b) – (g) of the 3AC:

b) Plaintiff was denied her annual base salary of $230,000.00 plus incentives.

c) In or around May 2013, Plaintiff took legally-protected leave due to pregnancy complications. When she returned to work on or around August 2013, unbeknownst to her at the time, Watts Healthcare secretly reduced Plaintiffs salary in violation of their agreement and because of her pregnancy and need for medical leave.

d) When she returned to work on or around August 2013, unbeknownst to her at the time, Watts Healthcare secretly reduced Plaintiffs salary in violation of their agreement and as harassment, discrimination, and retaliation based on her pregnancy and need for medical leave.

e) Further, Plaintiff was demoted to work as an hourly employee. Plaintiff was not allowed to report more than 36 hours per week, even though she was required to work well in excess of 36 hours per week. Plaintiff therefore was denied significant compensation, including wages, overtime and penalties.

f) Plaintiff was subjected to multiple discrepancies in her paychecks, including inaccurate hours and pay, but her complaints were ignored.

g) From 2013 through 2018 Plaintiff was shorted approximately $28,000.00 a year.

“In order to meet the FEHA standard, an employer's adverse treatment must ‘materially affect the terms, conditions, or privileges of employment.’ [Citation.] ‘[T]he determination of whether a particular action or course of conduct rises to the level of actionable conduct should take into account the unique circumstances of the affected employee as well as the workplace context of the claim.’ [Citation.] Such a determination ‘is not, by its nature, susceptible to a mathematically precise test.’ [Citation.] ‘Minor or relatively trivial adverse actions or conduct by employers or fellow employees that, from an objective perspective, are reasonably likely to do no more than anger or upset an employee cannot properly be viewed as materially affecting the terms, conditions, or privileges of employment and are not actionable, but adverse treatment that is reasonably likely to impair a reasonable employee's job performance or prospects for advancement or promotion falls within the reach of the antidiscrimination provisions of sections 12940(a) and 12940(h).’ [Citation.] FEHA not only protects against ‘ultimate employment actions such as termination or demotion, but also the entire spectrum of employment actions that are reasonably likely to adversely and materially affect an employee's job performance or opportunity [*92] for advancement … .’” (McCoy v. Pacific Maritime Assn. (2013) 216 Cal.App.4th 283, 298–299 [156 Cal. Rptr. 3d 851]; see Yanowitz, supra, 36 Cal.4th at pp. 1052, 1054–1055.)

(Light v. Department of Parks & Recreation (2017) 14 Cal.App.5th 75, 91-92.)

The flaw in Plaintiff’s motion is that she does not submit evidence of the amount of damages she is claiming to have suffered from emotional distress and loss of income due to the effect on her career trajectory. (See, e.g., UF Nos. 162 – 163, 268, 269, 270). Without quantifying these damages, Plaintiff has not met her initial burden of demonstrating that she is entitled to judgment as to this cause of action. A jury must decide the amount of those damages. As such, the burden does not shift to Defendant to demonstrate that a triable issue of material fact exists.

CCP § 437c(p)(1) provides:

(p) For purposes of motions for summary judgment and summary adjudication:

(1) A plaintiff or cross-complainant has met his or her burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on the cause of action. Once the plaintiff or cross-complainant has met that burden, the burden shifts to the defendant or cross-defendant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. The defendant or cross-defendant shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto.

(Civ. Proc. Code § 437c.)

A motion for summary adjudication must dispose of an entire cause of action [Code Civ. Proc., § 437c(f)(1)], unless certain procedures are followed prior to the bringing of the motion for summary adjudication [Code Civ. Proc., § 437c(t)] which procedures were not followed here:

[T]here can be no summary adjudication of less than an entire cause of action. (Code Civ. Proc., § 437c, subd. (f)(1) [“A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.”].) Therefore, an order granting summary adjudication “to the extent” a cause of action rests on this or that premise is invalid unless the matter thus adjudicated is properly viewed as a distinct “cause of action” for purposes of the provision thus cited. If a cause of action is not shown to be barred in its entirety, no order for summary judgment—or adjudication—can be entered.

(McCaskey v. California State Automobile Assn. (2010) 189 Cal.App.4th 947, 975.)

While the discussion in McCaskey, supra, is directed at a defense motion for summary adjudication, the same principle applies when a plaintiff attempts to move for summary adjudication on liability, with damages reserved for trial. (See, e.g., Paramount Petroleum Corp. v. Superior Court (2014) 227 Cal.App.4th 226, 242-243 (“In sum, there is no legal basis for a plaintiff's motion for summary adjudication on liability only, and the trial court erred in granting [plaintiff’s] motion in this case.”).)

As such, the motion for summary adjudication as to Issue No. 1 re: the second cause of action is DENIED.

2. ISSUE TWO: “Plaintiffs Third Cause of Action for Actual/Perceived Disability Retaliation in violation of the FEHA, Cal. Gov. Code § 12940 et. seq., must be adjudicated in favor of Plaintiff because Defendant retaliated against Plaintiff due to her perceived and/or actual disabilities by subjecting Plaintiff to adverse actions due to Plaintiff engaging in protected activity.”

As with Issue No. 1, Plaintiff did not quantify the amount of emotional distress damages and loss of income due to the effect on her career trajectory. (See, e.g., UF Nos. 162 – 163, 268 – 270). Without quantifying these damages, Plaintiff has not met her initial burden of demonstrating that she is entitled to judgment as to this cause of action. A jury must decide the amount of those damages. As such, the burden does not shift to Defendant to demonstrate that a triable issue of material fact exists.

The motion for summary adjudication as to Issue No. 2 re: the third cause of action is DENIED.

3. ISSUE THREE: “Plaintiffs Third Cause of Action for Actual/Perceived Disability Retaliation in violation of the FEHA, Cal. Gov. Code §12940 et. seq., must be adjudicated in favor of Plaintiff because Defendant retaliated against Plaintiff due to her perceived and/or actual disabilities by subjecting Plaintiff to adverse actions due to her complaints of the disability discrimination.”

The motion for summary adjudication as to Issue No. 3 re: the third cause of action is DENIED.

4. ISSUE FOUR: “Plaintiffs Fourth Cause of Action for Violation of the California Family Rights Act, Cal. Gov. Code §12945.2 et. seq., must be adjudicated in favor of Plaintiff because Defendant retaliated against Plaintiff for taking protected medical leave.”

The motion for summary adjudication as to Issue No. 4 re: the fourth cause of action is DENIED.

5. ISSUE FIVE: “Plaintiffs Fifth Cause of Action for Violations of the California Pregnancy Disability Leave Law, in violation of Cal. Gov. Code § 12945 et. seq., must be adjudicated in favor of Plaintiff because Defendant retaliated against Plaintiff for taking pregnancy disability leave.”

The motion for summary adjudication as to Issue No. 5 re: the fifth cause of action is DENIED.

6. ISSUE SIX: “Plaintiff's Seventh Cause of Action for Sex/Gender Discrimination in violation of the FEHA, Cal. Gov. Code §12940 et. seq., must be adjudicated in favor of Plaintiff because Defendant discriminated against Plaintiff due to her sex/gender by subjecting Plaintiff to adverse actions.”

The motion for summary adjudication as to Issue No. 6 re: the seventh cause of action is DENIED.

7. ISSUE SEVEN: “Plaintiffs Eighth Cause of Action for Sex/Gender Retaliation in violation of the FEHA, Cal. Gov. Code § 12940 et. seq., must be adjudicated in favor of Plaintiff because Defendant retaliated against Plaintiff due to her sex/gender by subjecting Plaintiff to adverse actions due to Plaintiff engaging in protected activity.”

The motion for summary adjudication as to Issue No. 7 re: the eighth cause of action is DENIED.

8. ISSUE EIGHT: “Plaintiffs Ninth Cause of Action for Failure to Pay Wages, in violation of Cal. Labor Code §558.1, must be adjudicated in favor of Plaintiff because Defendant failed to pay Plaintiff all wages owed.”

In the 3AC, Plaintiff also seeks waiting time penalties and all penalties provided by Labor Code § 203:

174. Plaintiff is owed a waiting time penalty for the willful failure to pay full wages when she quit and when the final paycheck is for less than the applicable wage, whether it be the minimum wage or a prevailing wage.

. . .

183. Plaintiff is entitled to all penalties provided by California Labor Code §203, among others.

However, Plaintiff did not quantify the amount of these penalties. Without quantifying these penalties, Plaintiff has not met her initial burden of demonstrating that she is entitled to judgment as to this cause of action. A jury must decide the amount of those penalties. As such, the burden does not shift to Defendant to demonstrate that a triable issue of material fact exists.

The motion for summary adjudication as to Issue No. 8 re: the ninth cause of action is DENIED.

9. ISSUE NINE: “Plaintiffs Tenth Cause of Action for Breach of Contract must be adjudicated in favor of Plaintiff because Defendant breached the contract it had with Plaintiff and the breach caused Plaintiff damage.”

The 3AC alleges at ¶ 182:

182. Beginning on or about June 3, 2008, Plaintiff and Defendants entered into a written contract for employment to perform work and services for Watts Healthcare as Chief of OB/GYN, in consideration for the following terms and conditions: Plaintiff would be paid on a salary basis, beginning with $230,832.00, plus incentives, per year.

The 3AC alleges at ¶¶ 187 – 190:

187. Defendants, and each of them, breached the contract by the following actions among others:

a. Defendants did not compensate Plaintiff with the promised base salary plus incentives;

b. From 2013 through 2019, Plaintiff was entitled to receive incentive payments from the Medicare and Medicaid EHR Incentive Programs (hereinafter "incentive pay" which provide incentives to eligible professionals (EPs ), eligible hospitals, and critical access hospitals (CAHs) for the meaningful use of certified EHR technology. Under the Medicaid program, EPs may receive an incentive for the adoption, implementation, or upgrade of certified EHR technology in their first year of participation.

c. Plaintiff was denied her incentive pay by Defendants and DOES 1 through 100, who unlawfully took her incentive pay.

188. Defendants fraudulently and deceitfully misrepresented to Plaintiff that they would compensate her at a base salary of at least $230,832.00 for the work she performed with the intent to fraudulently induce Plaintiff to work and continue with lesser compensation than that contracted for, knowing they were not going to honor their agreement and would not compensate her pursuant to the terms of their written agreement.

189. Defendants have not performed their obligations pursuant to the agreement.

190. As a direct result of the Defendants' acts, omissions and conduct, Plaintiff has been damaged in an amount to be shown at the time of trial, including but not limited for the loss of income, loss of wages, salary and bonus, and for the value of her intellectual property, skill and

experience, utilized by Defendants, all within an amount within the jurisdictional limits of this Court.

(Bold emphasis and underlining added.)

Here, Plaintiff has not presented any evidence of the amount of incentive pay or bonus she was denied. Without quantifying this incentive pay, Plaintiff has not met her initial burden of demonstrating that she is entitled to judgment as to this cause of action. A jury must decide the amount of these incentives. As such, the burden does not shift to Defendant to demonstrate that a triable issue of material fact exists.

The motion for summary adjudication as to Issue No. 9 re: the tenth cause of action is DENIED.