Judge: Colin Leis, Case: 21STCV14501, Date: 2023-02-17 Tentative Ruling
Case Number: 21STCV14501 Hearing Date: February 17, 2023 Dept: 74
Superior Court of California
County of Los Angeles – CENTRAL District
Department
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February
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[Tentative]
Order RE: DEFENDANT new alliance insurance brokers,
inc.’s MOTION FOR SUMMARY JUDGMENT or, in the alternative, summary
adjudication |
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MOVING PARTY: Defendant
RESPONDING PARTY: Plaintiff
Defendant’s
Motion for Summary Judgment
The court
considered the moving papers, opposition, and reply filed in connection with
this motion.
BACKGROUND
Plaintiff Ivan
Mercado’s (“Plaintiff”) alleges employment discrimination, retaliation, failure
to prevent discrimination and retaliation, and wrongful termination by his
former employer, Defendant New Alliance Insurance Brokers, Inc. (“Defendant”). Plaintiff alleges that he was issued several
written warnings for his job performance after he informed his supervisors that
he would be taking FMLA/CFRA baby bonding leave. He then alleges that he was harassed and
retaliated against and subsequently terminated because of his request to take
leave. The complaint alleges damages for
(1) discrimination based on association; (2) discrimination on the basis of the
California Family Rights Act; (3) retaliation for taking CFRA/NPLA leave; (4)
failure to prevent discrimination, harassment, or retaliation; and (5) wrongful
termination in violation of public policy.
In April 2022,
Defendant moved for summary judgment or, in the alternative, summary
adjudication. In June 2022, the court
granted Plaintiff’s ex parte application to continue the hearing on Defendant’s
motion. In late November 2022, the court
denied Plaintiff’s second ex parte application to continue the hearing on
Defendant’s motion. Plaintiff thereafter filed his timely opposition. The
opposition did not request a continuance.
The day
Defendant’s motion was set to be heard – December 14, 2022 – the judge assigned
to hear the motion recused herself upon Plaintiff’s filing of an affidavit of
prejudice under Code of Civil Procedure section 170.6. Out of necessity, that
judge continued the hearing, choosing a new date of January 18, 2023. At the
request of Plaintiff’s counsel, the January 18, 2023 hearing was further
continued to February 8, 2023. On January 30, 2023, the court denied
Plaintiff’s third ex parte application to continue the hearing. The court did,
however, on its own authority as a matter of calendar management continue the
hearing to February 17, 2023.
REQUEST FOR JUDICIAL NOTICE
Defendant requests that the Court take judicial notice of the
following documents filed in this Court and with the California Department of
Fair Employment and Housing: (1) Plaintiff’s complaint filed with the California
Department of Fair Employment and Housing; (2) Plaintiff’s amended complaint
filed with the California Department of Fair Employment and Housing; (3)
Defendant’s amended opposition to Plaintiff’s Ex Parte Application to Continue
the Hearing on Defendant’s MSJ and the Trial; and (4) amended declaration of
Edwin H. Noah in support of Defendant’s amended opposition to Plaintiff’s Ex
Parte Application to Continue the Hearing on Defendant’s MSJ and the
Trial.
The Court grants the request for judicial notice pursuant to Evidence
Code 452. However, “[t]aking judicial
notice of a document is not the same as accepting the truth of its contents or
accepting a particular interpretation of its meaning.” (Fremont Indemnity Co. v. Fremont General
Corp. (2007) 148 Cal.App.4th 97, 113.) Further, the court cannot accept as true the contents
of pleadings in an action just because they are part of the court record or
file. (Day v. Sharp (1975) 50 Cal.App.3d 904, 914.)¿¿
EVIDENTIARY OBJECTIONS
Plaintiff’s Objections to
Defendant’s Declarations
Sustained:
Nos. 4, 5.
Overruled:
Nos. 1- 3, 6 - 66.
Plaintiff’s Objections to
Defendant’s Supplemental Declarations:
All
sustained because the declarations constitute new evidence and argument.
Defendant’s Objections to
Plaintiff’s Declaration
Overruled:
Nos. 3-7
Defendant’s Evidentiary
Objections to the Denis Declaration
Sustained
in its entirety. The court finds that Plaintiff has no basis to file the Denis
Declaration as it is essentially another opposition, in which Plaintiff offers
argument.
LEGAL STANDARD
“
A plaintiff moving for summary judgment must show that there is no
defense to any of the asserted causes of action and does so by proving each
element of the cause of action. (Code Civ. Proc., § 437c, subds. (a)(1), (p)(1).)
A. Consideration
of Plaintiff’s Second Amended Opposition
Following the court’s denial
of Plaintiff’s January 30 ex parte application for another continuance, and
despite court and counsel discussing that prior continuances had not reopened
briefing, and Plaintiff therefore was not entitled to file a second opposition
in response to Defendant’s motion, Plaintiff nevertheless on February 3, 2023,
filed a second amended opposition in response to Defendant’s motion for summary
judgment. Plaintiff contends that the
court must consider its newly filed opposition papers because it falls within
the meaning of Code of Civil Procedure section 437c subdivision (b)(2); according
to Plaintiff, case authority supports Plaintiff’s contention; and, according to
Plaintiff, the court did not specifically prohibit further filings in its
January 30, 2023 minute order. Plaintiff’s
contention fails.
Code of Civil Procedure
section 437c subdivision (b)(2) states: “An opposition to the motion
[for summary judgment or adjudication] shall be served and filed not less than
14 days preceding the noticed or continued date of hearing, unless the court
for good cause orders otherwise. The
opposition, where appropriate, shall consist of affidavits, declarations,
admissions, answers to interrogatories, depositions, and matters of which
judicial notice shall or may be taken.” (emphasis
added.) The court finds that Plaintiff
is entitled to one opposition as the statute refers to “an” opposition in the
singular form. While Plaintiff may be
entitled to fix mistakes via a notice of errata, Plaintiff is not entitled to
present new and further arguments even if the amended opposition is timely
filed.
Plaintiff’s reliance on Levingston
v. Kaiser Foundation Health Plan, Inc. (2018) 26 Cal.App.5th 309, is misplaced.
In Levingston, the party opposing summary judgment had filed no
opposition at all due to the inexcusable neglect of that party’s attorney.
Here, however, Plaintiff filed a timely opposition on November 30 with
approximately 300 pages of supporting exhibits and 66 objections to Defendant’s
evidence. Plaintiff argues that if the court were to grant Defendant’s motion
for summary judgment without considering Plaintiff’s second opposition, it
would amount to a “terminating sanction” because the motion would be granted
based upon procedural error. The court
does not follow Plaintiff’s argument because Plaintiff has already filed an
opposition, which the court considers below.
Thus, the court’s ruling on Defendant’s motion relies on substantive and
not procedural grounds.
B. First
Cause of Action: Discrimination Based on Association
A plaintiff alleging
discrimination must allege “that (1) he was a member of a protected class, (2)
he was qualified for the position he sought or was performing competently in
the position he held, (3) he suffered an adverse employment action, such as
termination, demotion, or denial of an available job, and (4) some other
circumstance suggests discriminatory motive.” (Guz v. Bechtel National Inc. (2000) 24
Cal.4th 317, 355.) It is also unlawful for an employer to discriminate based
upon a person's¿association with¿another person (e.g., spouse) who has
or is perceived to have one of the protected characteristics. (Gov. Code § 12926(o).) Pregnancy, childbirth, and related medical
conditions are protected characteristics. (Gov. Code § 12926(r)(1).)
When the employer seeks
summary judgment for an unlawful discrimination claim, the initial burden rests
with the employer to show that no unlawful discrimination occurred. (CCP § 437c(p)(2); see Cornell v. Berkeley
Tennis Club (2017) 18 Cal.App.5th 908, 926.) To satisfy its initial burden, moving party
employer must either undermine an element of plaintiff’s prima facie case by
affirmatively negating it or by showing plaintiff cannot prove it, or provide a
legitimate nondiscriminatory reason for the adverse employment action. (McGrory v. Applied Signal Tech., Inc.¿(2013)
212 Cal.App.4th 1510, 1523.) If the employer meets this initial burden, to
avoid summary judgment the employee must produce “substantial responsive
evidence¿that the employer's showing was¿untrue or pretextual,” thereby raising
at least¿an inference of discrimination. (Hersant v. California Dept. of Social
Services¿(1997) 57 Cal.App.4th 997, 1004-1005.) A plaintiff's “suspicions of improper motives
… primarily based on conjecture and speculation” do not create triable issues
sufficient to survive summary judgment. (Kerr
v. Rose¿(1990) 216 Cal.App.3d 1551, 1564.)
Plaintiff argues that
Defendant discriminated against him with disciplinary write-ups and eventual
termination because he took baby-bonding leave following the birth of his
child. Defendant argues that Plaintiff cannot
establish a prima facie case for associational discrimination because Plaintiff
cannot show a discriminatory motive. Moreover, Defendant argues, Defendant has
offered evidence that Defendant laid off Plaintiff due to legitimate business
decisions, and Plaintiff cannot show that these business decisions were
pretextual.
In support of its arguments, Defendant
cites evidence that Defendant eliminated Plaintiff’s position when Defendant
consolidated its Customer Service Department. When Defendant hired Plaintiff,
Defendant had approximately one or two other Customer Service Representatives
in California. (Povolo Decl. ¶6.) At the beginning of 2018, Plaintiff was Defendant’s
only Customer Service Representative in California. (Povolo Decl., ¶9; De La Cruz Decl., ¶5; Noah
Decl., ¶7, Exh. 14 [Mercado Depo. 36:1-11]; Noah Decl., ¶¶5-6, Exh. 12, 13.)
Initially, Roberto Rodriguez supervised Plaintiff, but in 2018 Defendant
transferred Rodriguez to the Claims Department. (Rodriguez Decl. ¶ 3-5; Povolo Decl. ¶ 6-7; De
La Cruz Decl. ¶ 4.) Plaintiff’s new
supervisor, Dave Padilla, was based in Mexico. (Povolo Decl., ¶9; De La Cruz
Decl., ¶5.) Thus, Plaintiff did not have a direct supervisor in
California.
Marcelo Povolo, Defendant’s
president, declared that “As the President of NAIB, I believed that it was in
the best interest of the company to close and eliminate the Customer Service
Representative position in the California office. I believed this because (a) the California
office did not have a supervisor physically present to supervise Plaintiff; (b)
there was an established team of Customer Service Representatives based in
Mexico who could absorb all the work without any issues; and (c) it was less
expensive to have all of NAIB’s Customer Service Representatives work out of
NAIB’s Mexico office.” (SSUMF ¶18;
Povolo Decl. ¶ 11.) Povolo asserts that
because profit margins are extremely small, the company believed that one of
the most logical ways to cut costs was to eliminate Plaintiff’s California
position. (SSUMF ¶20; Povolo Decl. ¶ 12.)
Defendant’s Customer Service Department operates solely from an office
in Mexico, and all Customer Service Representatives are in Mexico. (Povolo Decl. ¶ 23.)
Moreover, Plaintiff admitted
at his deposition that no one within Defendant ever criticized him about either
his wife being pregnant or his taking baby-bonding leave. (Noah Decl., ¶7, Exh. 14 [Mercado Depo.
84:2-5,112:6-18].) Further, Defendant
states that it approved Plaintiff’s baby-bonding time and had a general policy
of encouraging its employees to take baby-bonding time. (SSUMF No. 34, 36; Povolo Decl. ¶ 18; Gonzalez
Decl. ¶ 9, Exh. 6.)
The foregoing satisfies
Defendant’s burden of providing a legitimate nondiscriminatory reason for the
adverse employment action. Thus, the
burden switches to Plaintiff to prove that Defendant’s legitimate,
non-discriminatory reasons underlying the alleged adverse employment actions
were a pretext for intentional discrimination. (King v. United Parcel Service, Inc.
(2007), 152 Cal.App.4th at 433-34.)
To show pretext, Plaintiff
argues he had multiple supervisors during the period, including Monica De La
Cruz, Gina De La Cruz, Carina, Isaias, Dave Padilla. (Exh. JJ [Mercedo Depo. 29:23-22].) However, none of the evidence refutes
Defendant’s evidence that Plaintiff had no direct supervisor in California. Although De La Cruz worked in the California
location, the evidence submitted only shows that she once sent an email stating
that Plaintiff was “out of his desk.” (Exh.
B). The evidence that Paola Jimenez was
Plaintiff’s direct supervisor is insufficient and does not directly show that
she was his direct supervisor. (Exh. N,
Exh. JJ [Mercado Depo. 33: 1-4].) Further,
some of the evidence cited to does not exist or is illegible. (Exh. R; Exh. 00, Dave Padilla Depo., at 189:14-190:15.)
This is not “substantial responsive
evidence¿that the employer's showing was¿untrue or pretextual” because it does
not affirmatively show that a Customer Service Representative supervisor was
present in California.
Plaintiff further argues that
the cost savings from firing him was not significant because he earned only $15
per hour. (Exh. JJ [Mercedo Depo.
22:21-24]). This also does not affirmatively show that the business rationale
was untrue or pretextual, especially since Defendant asserts that its profit
margin is small and that another aspect in their decision was that Plaintiff
was unsupervised.
Plaintiff also disputes that the
Customer Service Representative position was eliminated upon his termination
because David Padilla resumed some of Plaintiff’s tasks and distributed other
tasks to other employees. (Exh. OO,
Padilla Depo. 132:19-133:15.) Additionally,
Padilla, the supervisor for the Customer Service department, states that he
supervises two employees based in Argentina. (Exh. OO, Padilla Depo. 38:16-21.)
However, this does not show that
Defendant kept Plaintiff’s position open and hired a replacement in California.
Plaintiff also submits
evidence that other employees were unaware that Plaintiff’s position had been eliminated.
(Exh. MM [De La Cruz Depo.
129:11-129:20]; Exh. NN [Gonzalez Depo. 183:1-11]; Exh. LL [Rodriguez Depo.
38:23-39:1]; Exh. OO [Padilla Depo. 134:9-24].) But because Plaintiff does not explain why
these individuals should have known about his position’s elimination, he does
not show that Defendant’s stated reasons for his termination was pretextual
Plaintiff argues that there is
conflicting evidence about whether Defendant terminated him based on his
performance or because his position was eliminated. Plaintiff states that the termination occurred
on the same day Plaintiff refused to sign a write up for alleged substandard
work and violation of company policies. (Exh.
H (employee warning report stating “final warning” for “substandard work” on
October 24, 2019.) Plaintiff states that
he began getting written up for substandard work soon after he informed Gina in
March 2019 that he was expecting a child. (See Exh. S (first warning for
substandard work on March 22, 2019); Exh. T (second warning for substandard
work on July 24, 2019); “final warning” for substandard work on August 15,
2019); Exh. U (final warning for substandard work on August 22, 2019; Exh. V
(first warning for violation of company policies on October 21, 2019).) Plaintiff
also submits an EDD document attached to an email from De La Cruz, stating that
“You discharged the claimant partly for not performing the work to your
standards, but primarily to reduce your work force.” (Exh. K.)
The inference that Defendant may
have fired Plaintiff for substandard performance does not show that Defendant
terminated Plaintiff based on his protected characteristic. “A disbelief of an Employer’s stated reason
for a termination gives rise to a compelling inference that the Employer had a
different, unstated motivation,… [I]t does not, without more, reasonably give
rise to an inference that the motivation was a¿prohibited¿one.” (McGrory
v. Applied Signal Technology, Inc.¿(2013) 212 CA4th 1510, 1531-1532.) “There
must be more than inconsistent justifications for an employee’s termination to
support an inference that the employer's true motive was discriminatory.” (Id.)
Plaintiff must show both a causal link between the employer’s consideration of
protected characteristic and adverse action, and that discrimination was a substantial
motivating factor, rather than just a motivating factor. (Soria v. Univision Radio Los Angeles, Inc.
(2016) 5 Cal.App.5th 570, 590.) The EDD document that Plaintiff cites does not demonstrate
inconsistency in Defendant’s reasoning; rather, it indicates that Defendant primarily
terminated Plaintiff based on a workforce reduction, which thus supports
Defendant’s argument. Plaintiff’s evidence of disciplinary write-ups allows an
inference that Defendant fired Plaintiff for a reason other than eliminating his
position, but Plaintiff does not offer substantial evidence that shows that the
termination was based on his association with his pregnant girlfriend. Rather, the evidence merely suggests that
another reason for his firing was his poor performance.
Because Plaintiff does not met
his burden of submitting “substantial responsive evidence¿that the employer's
showing was¿untrue or pretextual,” the court grants Defendant’s motion for
summary adjudication of the first cause of action.
C. Second
and Third Causes of Action: Discrimination and Retaliation on the Basis of the
CFRA/NPLA
Defendant
argues that the second and third causes of action fail because Defendant was
not a covered employer under the CFRA. Defendant
additionally argues the causes of action fail because Defendant has offered
evidence that Defendant laid off Plaintiff due to legitimate business decisions,
and Plaintiff does not show a triable issue that those business reasons were pretextual.
To show a cause of action for
retaliation under Gov. Code § 12945.2, a plaintiff must show (1) the defendant
was an employer covered by CFRA; (2) the plaintiff was an employee eligible to
take CFRA leave; (3) the plaintiff exercised the plaintiff’s right to take
leave for a qualifying CFRA purpose; and (4) the plaintiff suffered an adverse
employment action, such as termination, fine, or suspension, because of the
plaintiff’s exercise of that right to CFRA. (Gov. Code § 12945.2(l)(1); Bareno v. San
Diego Community College Dist. (2017) 7 Cal.App.5th 546, 560.)
Although Plaintiff argues that
he only needs to show (1) his entitlement to CFRA leave rights, and (2) Defendant’s
interference with or denial of those right, these are the elements needed to
plead interference with CFRA. (See
Choochagi v. Barracuda Networks, Inc. (2020) 60 Cal.App.5th 444, 454.) Plaintiff has not pleaded interference, only
discrimination and retaliation. In his
complaint, Plaintiff specifically makes the cause of action clear by stating
the former four elements. (See Complaint
¶ 38.) Thus, the same standard for summary judgment applies to Plaintiff’s
second and third causes of action, namely Plaintiff first must demonstrate a
prima facie showing of prohibited discrimination, and if he does so, the burden
shifts to Defendant to articulate a legitimate, nondiscriminatory reason for
its action; if Defendant does so, Plaintiff thereafter has the burden of citing
substantial evidence sufficient to create a triable issue that the proffered
justification was a pretext for discrimination. (Nelson v. United Technologies (1999)
74 Cal.App.4th 597.)
Here, the Court does not
address the parties’ dispute over whether Defendant is a covered employer under
CFRA or NPLA because the Court has already found that the Defendant has offered
a legitimate, nondiscriminatory reason for its action, and Plaintiff has failed
to offer substantial evidence sufficient to create a triable issue that the
reasoning was a pretext for discrimination. Accordingly, the court grants
Defendant’s motion for summary adjudication of the second and third causes of
action.
D.
Fourth and Fifth Causes of Action:
Failure to Prevent Discrimination, Harassment, or Retaliation
Defendant argues that the fourth cause of action fails because
Plaintiff cannot establish his other claims for discrimination and harassment.
(Dickson v. Burke Williams, Inc. (2015) 234 Cal.App.4th 1307, 1315.) One
cannot prevent that which does not happen. Accordingly, the failure of
Plaintiff’s claims for discrimination and harassment to survive summary adjudication
likewise dooms his claim for retaliation.
Defendant argues that the fifth cause of action fails because it is
predicated on the FEHA and CRFA claims. For an employer to be liable for the
tort of wrongful termination in violation of public policy, the employer’s
conduct must violate a public policy that is fundamental, well-established, and
tethered to a constitutional or a statutory provision. (Carter v. Escondido
Union High School Dist. (2007) 148 Cal.App.4th 922, 925.) The complaint alleges that Plaintiff’s fifth
cause of action violated public policy because it violated FEHA and the CRFA. (Complaint ¶ 78.) Because Plaintiff’s
discrimination and harassment claims under FEHA and CRFA fail, Plaintiff’s
fifth cause of action likewise fails.
The court grants Defendant’s motion for summary adjudication of the
fourth and fifth causes of action.
Based on the foregoing, the court GRANTS Defendant’s motion for
summary judgment.
Defendant is ordered to give notice of this ruling.
IT IS SO ORDERED.
DATED:
_____________________________
Colin Leis
Judge of the Superior Court