Judge: Colin Leis, Case: 21STCV12456, Date: 2024-02-22 Tentative Ruling

Case Number: 21STCV12456    Hearing Date: February 22, 2024    Dept: 74

Jinhai Tan v. 4PX Express USA

Defendant 4PX Express USA’s Motion for Summary Judgment or, in the alternative, Summary Adjudication

The court considered the moving papers, opposition, and reply. All evidentiary objections are preserved.

BACKGROUND

            This action arises from an employment dispute.

            On November 7, 2023, Plaintiff Jinhai Tan (Plaintiff) filed an amended complaint (FAC) against Defendant 4PX Express USA (Defendant).

            The FAC alleges the following causes of action among others: (1st) wrongful termination in violation of public policy; (2nd) retaliation in violation of Government Code section 12940; (4th) failure to provide meal and rest breaks; and (7th) retaliation in violation of Labor Code section 1102.5.

            On December 5, 2023, Defendant filed this motion summary judgment or, in the alternative, summary adjudication of the above four causes of action.

LEGAL STANDARD 

            “¿[A] motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.¿” (¿¿Code Civ. Proc., § 437c, subd. (c)¿¿.) The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. (¿¿Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850¿¿.) If the moving party carries this burden, the burden shifts to the opposing party to make a prima facie showing that a triable issue of material fact exists. (¿¿Ibid.¿¿) Courts “¿liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.¿” (¿¿Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389¿¿.)

DISCUSSION

Second Cause of Action – Retaliation in Violation of Government Code Section 12940

             Defendant contends this cause of action fails because Plaintiff has not demonstrated that he engaged in a protected activity under the Fair Employment and Housing Act (FEHA). To prevail on a cause of action for retaliation under the FEHA, a plaintiff must first show (1) he or she engaged in a protected activity, (2) the defendant employer subjected the plaintiff to an adverse employment action, and (3) a causal link between the protected activity and the defendant employer’s action. (Iwekaogwu v. City of Los Angeles (1999) 75 Cal.App.4th 803, 814-815.) A plaintiff engages in a protected activity if he or she “opposed any practices forbidden under [Government Code section 12940].” (Gov. Code, § 12940, subd. (h).)

            In support, Defendant points out that Plaintiff does not claim he was terminated because he opposed any FEHA violation by Defendant. (Said Decl., ¶ 5; Ex. B, p. 12:6-9.) Rather, Plaintiff asserts that he was terminated only because he disclosed to coworkers Defendant’s potential violation of an executive order. (Said Decl., ¶ 5; Ex. B, p. 11:1-5; FAC, ¶¶ 6, 7.) Thus, Defendant has met its prima facie burden, meaning the burden shifts to Plaintiff to create a triable issue of material fact. Plaintiff concedes Defendant’s argument. (Opposition, p. 6.) Thus, the court grants Defendant’s motion for summary adjudication of this cause of action.

Fourth Cause of Action – Failure to Provide Meal and Rest Breaks

            Defendant argues Plaintiff cannot prevail on this cause of action for several reasons. Generally, an employer must provide employees with a 30-minute meal break for a work period of more than five hours. (Bradley v. Networkers Internat., LLC (2012) 211 Cal.App.4th 1129, 1149.) An employer also has a duty to authorize and permit rest breaks depending on the length of the shift. (Ibid.) Defendant contends it has a policy and practice of providing employees with meal and rest breaks. (Yun Decl., ¶ 3.) Defendant’s employee manual confirms as much. (Yun Decl., ¶ 4; Said Decl., ¶ 2; Ex. D, p. 32.) Moreover, Plaintiff does not dispute the policy and admits he regularly took 30-minute lunches. (Said Decl., ¶ 4; Ex. A, p. 29:1-4.) Plaintiff also admits Defendant never prevented him from taking rest breaks. (Said Decl., ¶ 4; Ex. A, pp. 29:23-25, 30:1-2.) Thus, Defendant has met its prima facie burden. Plaintiff concedes Defendant’s argument. (Opposition, p. 6.) Thus, the court grants Defendant’s motion for summary adjudication of this cause of action.

Seventh Cause of Action – Retaliation in Violation of Labor Code Section 1102.5

            Defendant asserts that this cause of action fails because Plaintiff did not make a disclosure to an entity or individual covered by Labor Code section 1102.5, subdivision (b). The statute provides in part: “An employer […] shall not retaliate against an employee for disclosing information […] to a person with authority over the employee or another employee who has the authority to investigate, discover, or correct the violation or noncompliance […] if the employee has reasonable cause to believe that the information discloses [the employer’s unlawful conduct].” (Lab. Code, § 1102.5, subd. (b).)

            In support, Defendant argues Plaintiff did not disclose Defendant’s potential violation of an executive order to a government or law enforcement agency. Also, Plaintiff did not disclose the potential violation to anyone with authority over Plaintiff. And finally, Plaintiff did not disclose the information to anyone who had authority to investigate, discover, or correct the alleged violation. Instead, Plaintiff merely shared the information with coworkers. (Said Decl., ¶ 4; Ex. A, p. 35:10-24; FAC, ¶ 7.) Defendant has satisfied its prima facie burden.

            In his opposition, Plaintiff maintains he notified coworkers of the potential violation so that they could later compel Defendant to comply with the executive order. (Tan Decl., ¶ 3.) But Plaintiff does not argue or provide evidence that any of the coworkers had authority over Plaintiff. Nor does Plaintiff offer evidence that the coworkers had authority to investigate, discover, or correct the potential violation, as required by Labor Code section 1102.5, subdivision (b). The court further notes Plaintiff has not provided evidence that he and his coworkers ever brought their concerns to Defendant’s management. And as Defendant points out, it is unclear whether Plaintiff himself signed his supporting declaration. (See In re Marriage of Reese & Guy (1999) 73 Cal.App.4th 1214, 1222-1223.) Accordingly, Plaintiff has not met his burden of creating a triable issue of material fact. Therefore, the court grants Defendant’s motion for summary adjudication of this cause of action. (Code Civ. Proc., § 437c, subd. (o) [“A cause of action has no merit if […] [o]ne or more of the elements of the cause of action cannot be separately established […].”].)

First Cause of Action – Wrongful Termination in Violation of Public Policy

            Defendant contends Plaintiff cannot prevail on this cause of action. In Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167, 172, the court held that, “an employer’s traditional broad authority to discharge an at-will employee may be limited by […] considerations of public policy.” A wrongful termination claim must rest on an important public policy embodied within a statutory or constitutional provision. (Green v. Ralee Eng. Co. (1998) 19 Cal.4th 66, 79.) Defendant argues that Plaintiff bases this cause of action on Defendant’s alleged retaliation in violation of Labor Code section 1102.5, subdivision (b). (FAC, ¶ 7.) According to Defendant, because Plaintiff’s retaliation claim fails, so too does this cause of action. (Stevenson v. Superior Court (1997) 16 Cal.4th 880, 904 [“[W]hen a plaintiff relies upon a statutory prohibition to support a common law cause of action for wrongful termination in violation of public policy, the common law claim is subject to statutory limitations affecting the nature and scope of the statutory prohibition […].”].) The court agrees.

            However, Plaintiff also bases this cause of action on Defendant’s violation of the Governor’s Executive Order N-60-20 from May 4, 2020. (FAC; Ex. B.)[1] Administrative regulations may manifest a fundamental public policy that supports a wrongful termination claim. (Green v. Ralee Eng. Co., supra, 19 Cal.4th at p. 82.) But Plaintiff does not specify the regulations or direct the court to the provision in the executive order that Defendant allegedly violated. (Id. at p. 84.) Accordingly, Plaintiff must come to the hearing prepared to cite the regulations or provisions in Executive Order No-60-20 that support his claim for wrongful termination in violation of public policy.

CONCLUSION

                The court grants Defendant’s motion for summary adjudication of the second, fourth, and seventh causes of action. The court defers its ruling on the first cause of action until the hearing.