Judge: Christopher K. Lui, Case: 23STCV09435, Date: 2025-03-20 Tentative Ruling

Case Number: 23STCV09435    Hearing Date: March 20, 2025    Dept: 76

            Plaintiff alleges that she was terminated in retaliation for reporting assaults from a client.

            Defendant Coalition for Responsible Community Development moves for summary judgment or, in the alternative, summary adjudication.

TENTATIVE RULING

Defendant Coalition for Responsible Community Development’s motion for summary judgment is GRANTED.

ANALYSIS

Request For Judicial Notice

            Defendant requests that the Court take judicial notice of the following: (1) Court Order on Defendant’s Motion to Deem Admitted Defendant CRCD’s Requests for Admission held on September 24, 2024; (2) Defendant’s Motion to Deem Admitted Defendant CRCD’s Requests for Admission filed on August 30, 2024.

            Requests Nos. 1 and 2 are GRANTED per Evid. Code, § 452(d)(court records).

Discussion

Motion For Summary Judgment

            For the reasons discussed above, Defendant has demonstrated that it is entitled to judgment as to all causes of action. As such, the motion for summary judgment is GRANTED.

Motion For Summary Adjudication

ISSUE No. 1: First Cause of Action for Whistleblower Retaliation in Violation of Labor Code section 1102.5 Fails as a Matter of Law Plaintiff’s first cause of action for Retaliation in Violation of Labor Code §1102.5 against CRCD fails as a matter of law because Plaintiff cannot show a nexus between her termination and the alleged protected activity, and her termination was solely due to a lawful, legitimate business reason.

            The separate statement fails to comply with Cal. Rules of Court, Rule 3.1350(b) & (d):

Cal Rules of Court, Rule 3.1350(b) provides:

If made in the alternative, a motion for summary adjudication may make reference to and depend on the same evidence submitted in support of the summary judgment motion. If 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) [bold emphasis and underlining added].)

Cal Rules of Court, Rule 3.1350(d) provides in pertinent part:

(1) The Separate Statement of Undisputed Material Facts in support of a motion must separately identify:

(A) Each cause of action, claim for damages, issue of duty, or affirmative defense that is the subject of the motion; and

(B) Each supporting material fact claimed to be without dispute with respect to the cause of action, claim for damages, issue of duty, or affirmative defense that is the subject of the motion.

(Cal. Rules of Court, Rule 3.1350(d)(1)(A) & (B) [bold emphasis and underlining added].)

            The separate statement only contains the following language:

Plaintiff’s first cause of action for Retaliation in Violation of Labor Code section 1102.5, second cause of action for Retaliation for Working Conditions Complaint in Violation of Labor Code section 6310, third cause of action for Wrongful Termination and claims for Punitive Damages all fail because she was terminated for taking poor work performance, a legitimate non-discriminatory reason. 

     (Sep. State, Page 2 [bold emphasis added].)

            The Court has discretionary power to deny summary adjudication for failure to comply with CRC Rule 3.1350.  (Truong v. Glasser (2009) 181 Cal.App.4th 102, 118.) However, the Court will only consider the issue of legitimate non-discriminatory reasons—poor work performance—as to each issue, which is the only issue set forth in the separate statement.

            Labor Code § 1102.5(b) provides:

(b) An employer, or any person acting on behalf of the employer, shall not retaliate against an employee for disclosing information, or because the employer believes that the employee disclosed or may disclose information, to a government or law enforcement agency, to a person with authority over the employee or another employee who has the authority to investigate, discover, or correct the violation or noncompliance, or for providing information to, or testifying before, any public body conducting an investigation, hearing, or inquiry, if the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation, regardless of whether disclosing the information is part of the employee’s job duties.

     (Labor Code § 1102.5(b).)

Labor Code section 1102.5 prohibits an employer from preventing an employee's disclosure of information to a governmental agency. It is a whistleblower statute, the purpose of which is to encourage workplace whistleblowers to report unlawful acts without fearing retaliation. (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 287 [46 Cal. Rptr. 3d 638, 139 P.3d 30].) Labor Code section 1102.6 is part of the same statutory [*914]  scheme. It provides that once an employee-whistleblower establishes by a preponderance of the evidence that retaliation was a contributing factor in the employee's termination, demotion, or other adverse action, the employer bears the burden of demonstrating by clear and convincing evidence that it would have taken the same action for legitimate, independent reasons. (Lab. Code, § 1102.6.) 2Link to the text of the note

In Lawson, supra, 12 Cal.5th 703, our Supreme Court addressed whether the evidentiary standard set forth in Labor Code section 1102.6 replaced McDonnell Douglas as the relevant evidentiary standard for retaliation claims brought pursuant to Labor Code section 1102.5. Lawson held that Labor Code section 1102.6, adopted in 2003, provides the governing framework for analyzing whistleblower retaliation claims brought under Labor Code section 1102.5. It “places the burden on the plaintiff to establish, by a preponderance of the evidence, that retaliation for an employee's protected activities was a contributing factor in a contested employment action. The plaintiff need not satisfy McDonnell Douglas in order to discharge this burden. Once the plaintiff has made the required showing, the burden shifts to the employer to demonstrate, by clear and convincing evidence, that it would have taken the action in question for legitimate, independent reasons even had the plaintiff not engaged in protected activity.” (Lawson, at p. 718, italics added.)

Here, the Regents moved to summarily adjudicate the second cause of action, violation of Labor Code section 1102.5, pursuant to the McDonnell Douglas framework, and the trial court utilized that framework to summarily adjudicate the second cause of action in favor of the Regents. Because the moving papers failed to employ the applicable framework prescribed by Labor Code section 1102.6, the Regents failed to meet their initial burden in moving to summarily adjudicate the second cause of action. Their motion as to the second cause of action should therefore have been denied.

Scheer's opposition papers in the trial court also did not invoke Labor Code section 1102.6. This does not preclude our consideration of the issue. Prior to Lawson, which resolved the question at the request of the Ninth Circuit, the state of the law was unsettled. Further, the trial court's “assessment of whether the moving party has carried its burden—and therefore caused a shift—occurs before the court's evaluation of the opposing party's [*915]  papers” to the motion for summary judgment. (Y.K.A. Industries, Inc. v. Redevelopment Agency of City of San Jose (2009) 174 Cal.App.4th 339, 367 [94 Cal. Rptr. 3d 424], italics added.) On our de novo review, we apply the same rules and standards which govern a trial court's determination of a motion for summary judgment. (Zavala v. Arce, supra, 58 Cal.App.4th at p. 925.) Because the Regents' moving papers in the trial court failed to apply the Labor Code section 1102.6 framework, they failed to meet their threshold burden. Summary adjudication of the second cause of action should have been denied.

The Regents argue that on this record, we should affirm the trial court's ruling with respect to the second cause of action, notwithstanding that Lawson revised the analytical framework for resolving claims under Labor Code section 1102.5. We disagree. Our role as an appellate]  court is to review the trial court's order on the motion the Regents actually made in the trial court, not to rule in the first instance on whether the Regents are entitled to summary adjudication on the second cause of action in light of the Labor Code section 1102.6 framework. Now that Lawson has clarified the law, the Regents are not precluded on remand from moving for summary adjudication of the second cause of action in accordance with the Labor Code section 1102.6 framework.

(Scheer v. Regents of Univ. of Cal (2022) 76 Cal.App.5th 904, 913-15 [bold emphasis and underlining added].)

Defendant argues that Plaintiff complained bout a third-party participant under her care, not the conduct of Defendant. However, this goes to a prima facie claim, which was not presented in the separate statement, and will not be considered here.

Defendant also argues there is no causal connection between Plaintiff’s complaint and her termination for poor work performance and multiple policy violations. The Court will not address the lack of causal connection because it was not presented in the separate statement.

However, the Court will consider whether Plaintiff’s work performance and policy violations are clear and convincing evidence that Defendant would have terminated Plaintiff even if she had not complained. Defendant’s undisputed material facts (“UFs”) in this regard as follows:

10. [ ]  Plaintiff George was terminated on April 29, 2021 after CRCD received a slew of complaints regarding Plaintiff’s poor work performance in violation CRCD’s employee policies, specifically, 5 STANDARDS OF CONDUCT AND DISCIPLINE; 5.1 Conduct that Will Not Be Tolerated; 5.2 Conflict of Interest within CRCD Community, 5.6 Attendance and Punctuality, 5.10 Ethical Standards. 

Decl. Cortazar ¶ 6, Exh.7-12.

 11. From the outset of Plaintiff’s employment, she was advised by her direct supervisor Burdett Stills, to complete her to timely complete her work assignments in both her quarterly and annual 2020 performance

Reviews.

Decl. Cortazar ¶ 7, Exh. 11-12.

12. . On or about, February 26, 2021, Plaintiff was formerly disciplined for repeatedly failing to report to work punctually. 

Decl. Cortazar ¶ 8, Exh 6.

13. In or around March 3, 2021, Psychiatric Social Worker, Laura Garcia of Kedren Community Health Center, notified Ms. Stills that she had concerns about

Plaintiff. 

Decl. Cortazar ¶ 9, Exh 8 at CRCD000478.

14. On or about April 16, 2021, it came to Ms. Stills’ attention that Plaintiff’s work attendance had begun to deteriorate once again, after several CRCD

stakeholders notified Ms. Stills that Plaintiff George’s work performance took a marked downturn (Gillian Hibbert from the Dept. of Mental Health notified Stills

of another concern regarding Plaintiff George’s continued work). Indeed, several therapists and the Department of Mental Health notified Ms. Stills that Plaintiff’s work performance was had deteriorated so poorly that she contemplated writing a final written warning to Ms. George.

Decl. Cortazar ¶ 10, Exh. 7.

15. In or around March and April 2021, the property manager at the 28th Streets Apartments, Melanie Hawkins-Robertson from Levine Property Management Group, Inc., notified Plaintiff’s supervisor, Ms. Stills that she had grave concerns

about Ms. George’s work performance not only due to her attendance but also because she was asking ICMS participants for food.  

Particularly, Ms. George asked participants Kajohenae S. Cannon and Richard J. Capranica for food, which led the participants to and Ms. Hawkins-Robertson to

doubt Plaintiff’s wellness and commitment to working with them.

Decl. Cortazar ¶ 11, Exh. 8 at CRCD00480-481.

16. On April 27, 2021, it came to CRCD’s attention that Plaintiff George began cellphone videorecording Glenneva Young, a ICMS participant assigned to Ms.

George, while Ms. Young was experiencing a mental health crisis.  CRCD was again notified by Psychiatric Social Worker, Laura Garcia of Kedren Community

Health Center that she was concerned by Plaintiff George’s behavior.  This last action by Plaintiff George was in direct contravention to CRCD’s policy,

5.1 Conduct that Will Not Be Tolerated – 11. Disrespect to a client; 5.2 Conflict of Interest within CRCD Community - engaging in actions that might

conflict or appear to conflict with job responsibilities or the interests of CRCD; and 5.10 Ethical Standards.

Decl. Cortazar ¶ 12, Exh. 9.

17. Following my discussions with Ms. Stills, Jennifer Moore (former CRCD Human Resources Director), Stacey Cabling, and myself, we decided that

Ms. George should be terminated.  

Decl. Cortazar ¶ 14, Exh. 10.

18. . . . On September 24, 2024, the Court granted Defendant CRCD’s motion to deem certain facts admitted, because Plaintiff had failed to serve a response within 30 days after the discovery served on him.  Request for Judicial Notice (“RJN”) Exh 1 and Exh. 2.

19. Specifically, the Court deemed as admitted the following facts with respect to Plaintiff George’s actions . . .: 

·  In February 2021, Plaintiff George received a disciplinary warning from CRCD for failing to report to work.

· Participant Glenneva T. Young filed a written complaint about Plaintiff’s work as her ICMS case manager to CRCD in or around March 2021.

· Participant Glenneva T. Young filed a written complaint about Plaintiff in her role as Ms. Young’s ICMS case manager to CRCD in or around April 2021.

·  Plaintiff did in fact video record participant Glenneva T. Young on or around April 27, 2021.

· Plaintiff met with her director Caroline Cortazar to discuss YOUR concerns about Glenneva T. Young on April 19, 2021.

· In or around March 2021, Plaintiff asked Kajohenae S. Cannon, a tenant at the 28th Street Apartments, for food. 

· In or around March 2021 YOU asked Richard J. Capranica, a tenant at the 28th Street Apartments, for food. 

Request for Judicial Notice (“RJN”) Exh 1 and Exh. 2. 

Plaintiff alleges that in April 2021 she made a report pertaining to assaults from a client and resident of Defendants to the Los Angeles Department of Health Services. However, the foregoing timeline is sufficient to show by clear and convincing evidence that Plaintiff had performance issues prior to the April 2021 report, sufficient to justify Plaintiff’s termination for legitimate, independent reasons, even if she had not made the reports. The burden shifts to Plaintiff to demonstrate that a triable issue of material fact exists.

In failing to file any opposition, Plaintiff has failed to meet that burden. As such, the motion for summary adjudication as to Issue No. 1 re: the first cause of action is GRANTED.

ISSUE NO. 2: The Second Cause of Action for Whistleblower Retaliation in Violation of Labor Code section 6310 Fails as a Matter of Law Plaintiff’s second cause of action for Retaliation in Violation of Labor Code § 6310 against CRCD fails as a matter of law because Plaintiff cannot show a nexus between her termination and the alleged

protected activity, and her termination was solely due to a lawful, legitimate business reason.

            Labor Code § 6310(a)(1) provides:

(a) No person shall discharge or in any manner discriminate against any employee because the employee has done any of the following:

(1) Made any 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, their employer, or their representative.

     (Labor Code § 6310(a)(1).)

Nor is there merit to Muller's claim that she was discharged in retaliation for complaining of unsafe working conditions in violation of Labor Code section 6310.

"To establish a prima facie case of retaliation, a plaintiff must show that she engaged in a protected activity, that she was thereafter subjected to adverse employment action by her employer, and there was a causal link between the two. [Citation.]" ( Fisher v. San Pedro Peninsula Hospital, supra, 214 Cal. App. 3d at p. 614.)

(Muller v. Auto. Club of So. Cal. (1998) 61 Cal. App. 4th 431, 451, overruled in part on other grounds in Colmenares v. Braemar Country Club, Inc. (2003) 29 Cal. 4th 1019, 1031 n.6.)

            “If the employee presents a prima facie case of retaliation, the court then employs the three-stage McDonnell Douglas framework to analyze the employee's claim[1]. (Citation omitted.)” (Zamora v. Security Industry Specialists, Inc. (2021) 71 Cal.App.5th 1, 63.)

            For the reasons discussed above re: the first cause of action, there is no triable issue of material fact as to whether a legitimate, non-retaliatory reason existed for Plaintiff’s termination.

            As such, the motion for summary adjudication as to Issue No. 2 re: the second cause of action is GRANTED.

ISSUE NO. 3: Plaintiff's Derivative Third Cause Of Action for Wrongful Termination Fails For The Same Reasons As Her First and Second Causes  Plaintiff’s third cause of action for Wrongful Termination in Violation of Public Policy against CRCD fails as a matter of law because Plaintiff cannot show a nexus between her termination and the

alleged protected activity, and her termination was solely due to a lawful, legitimate business reason. 

When a plaintiff alleges retaliatory employment termination either as a claim under the FEHA or as a claim for wrongful employment termination [*1109]  in violation of public policy, and the defendant seeks summary judgment, California follows the burden-shifting analysis of McDonnell Douglas Corp. v Green (1973) 411 U.S. 792 [36 L. Ed. 2d 668, 93 S. Ct. 1817] to determine whether there are triable issues of fact for resolution by a jury. (Citation omitted.) In the first stage, the “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.” (Citation omitted.) If the employee successfully establishes these elements and thereby shows a prima facie case exists, the burden shifts to the employer to provide evidence that there was a legitimate, nonretaliatory reason for the adverse employment action. (Citation omitted.) If the employer produces evidence showing a legitimate reason for the adverse employment action, “the presumption of retaliation ‘ “ ‘drops out of the picture,’ ” ’ ” (citation omitted), and the burden shifts back to the employee to provide “substantial responsive evidence” that the employer's proffered reasons were untrue or pretextual (citation omitted).

(Loggins v. Kaiser Permanente International (2007) 151 Cal.App.4th 1102, 1108-09 [bold emphasis added].)

            For the reasons discussed above re: the first cause of action, there is no triable issue of material fact as to whether a legitimate, non-retaliatory reason existed for Plaintiff’s termination.

            As such, the motion for summary adjudication as to Issue No. 3 re: the third cause of action is GRANTED.

ISSUE NO. 4: Plaintiff's Claim For Punitive Damages Fails As A Matter Of Law Because Plaintiff Has Not And Cannot Establish Defendant’s Conduct Was Fraudulent, Oppressive Or Malicious  Punitive damages are not warranted because Plaintiff cannot present evidence that any CRCD officer, director, or managing agent committed an act of oppression, fraud or malice, or authorized or ratified the same. Aquiho v. Superior Ct., 21 Cal. App. 4th 847, 855 (1993); see Cal. Civil Code § 3294(b).

            This issue was not even set forth in the separate statement, nor were any supporting material facts and evidence cited.

            The motion for summary adjudication of Issue No. 4 would be denied if it were not MOOT.