Judge: Colin Leis, Case: 21STCV30121, Date: 2023-02-14 Tentative Ruling

Case Number: 21STCV30121    Hearing Date: February 14, 2023    Dept: 74

Superior Court of California

County of Los Angeles – CENTRAL District

Department 74

MOVING PARTY:                Defendant Los Angeles Unified School District

RESPONDING PARTY:       Plaintiff A.S.

Defendant’s Motion for Summary Judgment

The court considered the moving papers, opposition, and reply filed in connection with this motion. 

BACKGROUND

On August 16, 2021, Plaintiff filed this action against Defendant alleging violation of Labor Code section 432.7, subdivision (a)(1) and requesting declaratory relief.  On September 24, 2019, Plaintiff filed a First Amended Complaint (“FAC”) alleging the same causes of action. Trial is scheduled for March 13, 2023.

Defendant now moves for summary judgment.

REQUEST FOR JUDICIAL NOTICE

            The court GRANTS Defendant’s requests for judicial notice in full.

EVIDENTIARY OBJECTIONS

            The court OVERRULES Plaintiff’s objections as to numbers 1-5.

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.)

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).)

DISCUSSION

Plaintiff’s first cause of action alleges Defendant violated Labor Code section 432.7,

subdivision (a)(1) by denying employment eligibility to Plaintiff, in whole or in part, on the

basis of his expunged conviction for misdemeanor battery.  (FAC ¶¶ 19-21 & 34, & 41.)  Defendant contends it is exempt, however, from section 432.7, subdivision (a)(1) because various laws obligate Defendant to conduct criminal background checks and, in doing so, directs Defendant to disregard expunged convictions. In support, Defendant relies on two subdivisions of section 432.7: subdivision (n) and subdivision (m)(1). Defendant’s reliance on those subdivisions is unavailing.

Subdivision (n)

Labor Code section 432.7, subdivision (n) states: “This section does not prohibit an employer . . . required by state, federal, or local law to conduct criminal background checks for employment purposes or to restrict employment based on criminal history from complying with those requirements, or to prohibit the employer from seeking or receiving an applicant’s criminal history report that has been obtained pursuant to procedures otherwise provided for under federal, state, or local law.”

Subdivision (n) allows Defendant to comply with sections of the Education Code such as 45125, 40008, 45122.1 and 44830.1 that require Defendant to undertake background checks. However, Defendant cites no federal, state, or local law that requires Defendant to restrict employment based on a misdemeanor battery conviction. Thus subdivision (n) does not carve out an exception to subdivision (a)(1) on which Defendant may rely to deny Defendant employment based on his misdemeanor battery conviction.

Subdivision (m)(1)

Labor Code section 432.7, subdivision (m)(1) states: “Paragraph (1) of subdivision (a) does not prohibit an employer . . . from asking an applicant about, or seeking from any source information regarding, a particular conviction of the applicant if, pursuant to . . . federal law, federal regulation, or state law, any of the following apply:

(A) The employer is required by law to obtain information regarding the particular conviction of the applicant, regardless of whether that conviction has been expunged . . . .

            ¶ . . . .¶

(C) An individual with that particular conviction is prohibited by law from holding the position sought by the applicant, regardless of whether that conviction has been expunged . . . .

(D) The employer is prohibited by law from hiring an applicant who has that particular conviction, regardless of whether that conviction has been expunged . . . .” (Emphasis added.)

Subdivision (m)(2) defines “particular conviction” as follows: “For purposes of this subdivision, ‘particular conviction’ means a conviction for specific criminal conduct or a category of criminal offenses prescribed by any federal law, federal regulation, or state law that contains requirements, exclusions, or both, expressly based on that specific criminal conduct or category of criminal offenses.”

Defendant points to Education Code sections 45125 and 44008, which compel school districts to conduct criminal background checks for all prospective employees, regardless of whether that conviction has been expunged. Defendant does not, however, cite any law prohibiting Defendant from employing Plaintiff because of his “particular conviction” for misdemeanor battery. The court therefore finds that subdivision (m)(1) does not exempt Defendant from subdivision (a)(1).

Declaratory Relief

Plaintiff’s second cause of action seeks a judicial declaration as to whether Defendant’s

conviction review policies violate Labor Code section 432.7, subdivision (a)(1) by considering

convictions that have been expunged.  (FAC ¶¶ 45-47.)  Defendant claims Plaintiff’s declaratory relief claim is derivative of Plaintiff’s Labor Code section 432.7 claim and fails for the same reasons. Because Defendant is not entitled to any exemption as to Plaintiff’s first cause of action for violation of Labor Code section 432.7, subdivision (a)(1), Plaintiff’s declaratory relief claim does not fail as a matter of law.

Based on the foregoing, the court DENIES Defendant’s motion for summary judgment.

Plaintiff is ordered to give notice of this ruling.

IT IS SO ORDERED.

DATED:  February 14, 2023

_____________________________

Colin Leis

Judge of the Superior Court

Superior Court of California

County of Los Angeles – CENTRAL District

Department 74

MOVING PARTY:                Plaintiff A.S.

RESPONDING PARTY:       Defendant Los Angeles Unified School District

Plaintiff’s Motion for Summary Judgment

The court considered the moving papers, opposition, and reply filed in connection with this motion.

BACKGROUND

On August 16, 2021, Plaintiff filed this action against Defendant alleging violation of Labor Code section 432.7, subdivision (a)(1) and requesting declaratory relief.  On September 24, 2019, Plaintiff filed a First Amended Complaint (“FAC”) alleging the same causes of action.  Trial is scheduled for March 13, 2023.

Plaintiff now moves for summary judgment, or in the alternative, summary adjudication.

REQUEST FOR JUDICIAL NOTICE

            The court GRANTS Plaintiff’s requests for judicial notice in full.

The court GRANTS Defendant’s requests for judicial notice in full.

EVIDENTIARY OBJECTIONS

            The court OVERRULES Defendant’s objections as to numbers 1-4.

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.)

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).)

DISCUSSION

Plaintiff’s first cause of action alleges Defendant violated Labor Code section 432.7, subdivision (a)(1) in denying employment eligibility to Plaintiff, in whole or in part, based on his expunged misdemeanor battery conviction.  (FAC ¶¶ 19-21 & 34, & 41.) Plaintiff argues he is entitled to summary judgment because it is undisputed that Defendant denied his employment application based on a judicially dismissed conviction, and no law permitted Defendant to override section 432.7 subdivision (a)(1) to deny Plaintiff employment based on his conviction for misdemeanor battery. Defendant contends, however, that Defendant is exempt from section 432.7, subdivision (a)(1) because various laws obligate Defendant to conduct criminal background checks and, in doing so, directs Defendant to disregard expunged convictions. In support, Defendant relies on two subdivisions of section 432.7: subdivision (n) and subdivision (m)(1). Defendant’s reliance on those subdivisions is unavailing.

Subdivision (n)

            Subdivision (n) states: “This section does not prohibit an employer . . . required by state, federal, or local law to conduct criminal background checks for employment purposes or to restrict employment based on criminal history from complying with those requirements, or to prohibit the employer from seeking or receiving an applicant’s criminal history report that has been obtained pursuant to procedures otherwise provided for under federal, state, or local law.”             Subdivision (n) allows Defendant to comply with sections of the Education Code such as 45125, 40008, 45122.1, and 44830.1 that require Defendant to undertake background checks. However, Defendant cites no federal, state, or local law that requires Defendant to restrict employment based on a misdemeanor battery conviction. Thus subdivision (n) does not carve out an exception to subdivision (a)(1) on which Defendant may rely to deny Plaintiff employment based on his misdemeanor battery conviction.

Subdivision (m)(1)

Subdivision (m)(1) states: “Paragraph (1) of subdivision (a) does not prohibit an employer . . . from asking an applicant about, or seeking from any source information regarding, a particular conviction of the applicant if, pursuant to . . . federal law, federal regulation, or state law, any of the following apply:

(A) The employer is required by law to obtain information regarding the particular conviction of the applicant, regardless of whether that conviction has been expunged . . . .

¶ . . . . ¶

(C) An individual with that particular conviction is prohibited by law from holding the position sought by the applicant, regardless of whether that conviction has been expunged . . . .

(D) The employer is prohibited by law from hiring an applicant who has that particular conviction, regardless of whether that conviction has been expunged . . . .” (Emphasis added.)

Subdivision (m)(2) defines “particular conviction” as follows: “For purposes of this subdivision, ‘particular conviction’ means a conviction for specific criminal conduct or a category of criminal offenses prescribed by any federal law, federal regulation, or state law that contains requirements, exclusions, or both, expressly based on that specific criminal conduct or category of criminal offenses.”

Subdivision (m)(1) does not protect Defendant because it allows Defendant to only ask about or seek information concerning an applicant’s particular conviction.  Seeking such information does not, however, allow Defendant to deny Plaintiff employment in this case because Education Code statutes relied upon by Defendant at sections 44008, 45122.1, 44830.1, 45123, 45125, and 44836 do not prohibit school employment because of a misdemeanor battery conviction nor do they contain “requirements, exclusions, or both, expressly based on” that conviction. Thus subdivision (m)(1) does not carve out an exception to subdivision (a)(1) on which Defendant may rely to deny Plaintiff employment based on his misdemeanor battery conviction.

Declaratory Relief

Because Defendant cannot claim any exemption, Plaintiff is entitled to declaratory relief.

Damages

The court finds that Plaintiff’s alleged damages are disputed issues of fact which cannot be resolved by summary adjudication. 

Summary Adjudication

Because triable issues of fact exist about the extent of Plaintiff’s damages, the court does not grant Plaintiff’s motion for summary judgment.  However, the court considers the requested issues for summary adjudication.

            First, Plaintiff requests summary adjudication on the issue of whether section 432.7 of the Labor Code prohibits Defendant from using Plaintiff's misdemeanor battery conviction in violation of Penal Code section 242 when his conviction had been dismissed under section 1203.4 of the Penal Code (Plaintiff’s First Cause of Action & Second Cause of Action).  In light of the above analysis, the court finds that Defendant was not allowed to use Plaintiff’s conviction history to deny employment, but Defendant could ask about the expunged conviction because certain statutes compelled Defendant to conduct a background check.  Thus, the court GRANTS Plaintiff’s motion in part, only as to the fact that Labor Code section 432.7 did not allow Defendant to consider his prior conviction to deny employment.

Second, Plaintiff requests summary adjudication on the issue of whether any federal, state, or local law restricts Defendant from employing an individual based on a misdemeanor battery conviction in violation of Penal Code section 242 (Plaintiff’s First Cause of Action).  Because Defendant fails to identify any such law, the court finds no federal, state, or local law restricts Defendant from employing an individual on the basis of a misdemeanor battery conviction in violation of Penal Code section 242.  Thus, the court GRANTS Plaintiff’s request for summary adjudication as to this issue.

            Third, Plaintiff requests summary adjudication on the issue of whether Defendant’s actions injured Plaintiff  (Plaintiff’s First Cause of Action).  Defendant provides sufficient evidence to create a triable issue whether Plaintiff suffered damages.  (Opp. pp. 22-23 [“E]ven if Plaintiff had cleared LAUSD’s background check, this would not have guaranteed Plaintiff would have been hired. Instead, Plaintiff would have only been eligible to continue to the next stage of the employment application process along with all other eligible applicants.  (Fuller Decl. ¶¶ 15 & 26.)”].)  The court thus denies summary adjudication because triable issues of fact exist about the extent of Plaintiff’s damages, including whether Plaintiff suffered damages at all. 

Fourth, Plaintiff requests summary adjudication on the issue of whether Defendant’s denial of Plaintiff’s employment based on his dismissed conviction was intentional (Plaintiff’s First Cause of Action).  The undisputed facts show that Defendant denied Defendant’s employment. Additionally, Defendant admits that it considered Plaintiff’s prior conviction in its decision.  Thus, the court GRANTS Plaintiff’s request for summary adjudication as to this issue.

Based on the foregoing, the court DENIES Plaintiff’s motion for summary judgment and summary adjudication as to issue 3, and GRANTS Plaintiff’s request for summary adjudication as to issues 1 in part, 2 in full, and 4 in full.

Plaintiff is ordered to give notice of this ruling.

IT IS SO ORDERED.

DATED:  February 14, 2023

_____________________________

Colin Leis

Judge of the Superior Court