Judge: Colin Leis, Case: 2STCV17682, Date: 2023-02-10 Tentative Ruling

Case Number: 2STCV17682    Hearing Date: February 10, 2023    Dept: 74

Superior Court of California

County of Los Angeles – CENTRAL District

Department 74

MOVING PARTIES:             Defendants Baldwin Park, Shannon Yauchzee, Rose Tam, Laura Thomas, Manuel Lozano, Michael Taylor, and Benjamin Martinez

RESPONDING PARTY:        Plaintiff

Motion for Summary Judgment or, in the Alternative, Summary Adjudication

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

BACKGROUND

On May 8, 2020, Plaintiff Suzanne Ruelas filed this action. The operative Second Amended Complaint asserts the following fourteen causes of action against Defendants City of Baldwin Park (“City”), Shannon Yauchzee (“Yauchzee”), Rose Tam (“Tam”), Laura Thomas (“Thomas”), Manuel Lozano (“Lozano”), Michael Taylor (“Taylor”), and Benjamin Martinez (“Martinez”) (collectively, “Defendants”): (1) wrongful termination of employment in violation of Labor Code § 1102.5 (wage complaints); (2) wrongful termination of employment in violation of Labor Code § 1102.5 (fraud complaints); (3) discrimination on the basis of race in violation of FEHA; (4) harassment on the basis of race in violation of FEHA; (5) retaliation on the basis of race in violation of FEHA; (6) discrimination on the basis of gender in violation of FEHA; (7) harassment on the basis of gender in violation of FEHA; (8) retaliation on the basis of gender in violation of FEHA; (9) discrimination on the basis of age in violation of FEHA; (10) harassment on the basis of age in violation of FEHA; (11) retaliation on the basis of age in violation of FEHA; (12) retaliation for engaging in protected activity in violation of FEHA; (13) intentional infliction of emotional distress; and (14) defamation.

            On February 10, 2022, Defendants filed their motion for summary judgment or, in the alternative, summary adjudication.

            On December 2, 2022, Plaintiff filed her opposition papers to Defendants’ motion.

            On December 9, 2022, Defendants filed their reply.

REQUEST FOR JUDICIAL NOTICE

            The court may take judicial notice of “official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States,” “[r]ecords of (1) any court of this state or (2) any court of record of the United States or of any state of the United States,” and “[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (Evid. Code § 452, subds. (c), (d), and (h).) 

Defendants request the court to take judicial notice of the following documents: (1) June 2, 2008 Employment Agreement between Plaintiff and the City; (2) California Public Employees Retirement System Summary for Plaintiff; (3) August 19, 2015 Amended Employment Agreement between Plaintiff and City; (4) Memorandum of Understanding between City and the Baldwin Park Police Officers Association and Resolution authorizing approval; (5) Memorandum of Understanding between City and the Service Employee International Union; (6) Resolution 2015-081, Resolution of the Unclassified Managers' Benefit Matrix; and (7) October 4, 2018 RJN Investigation AOE/COE Report regarding Plaintiff’s Workers Compensation Claim.

The court grants Defendants’ request for judicial notice pursuant to Evidence Code § 452(c) and (h).

EVIDENTIARY OBJECTIONS

            On December 2, 2022, Plaintiff filed objections to Defendants’ evidence used in support of their motion for summary judgment. First, Plaintiff objects to numerous material facts raised in Defendants’ separate statement on the ground that an unverified complaint cannot be used as evidence. (See Objection No. 1.) However, this is unpersuasive because “[a] defendant moving for summary judgment may rely on the allegations contained in the plaintiff's complaint, which constitute judicial admissions. As such they are conclusive concessions of the truth of a matter and have the effect of removing it from the issues.” (Uram v. Abex Corp. (1990) 217 Cal.App.3d 1425, 1433.) Thus, the court overrules objection no. 1.

Plaintiff also objects to the Declaration of Melissa Trujillo and the material facts that rely on it because it was not filed along with the moving papers. The court sustains objection 2. Objections 3 through 5 are overruled.

On December 9, 2022, Plaintiff filed a set of objections to the Declarations of Rose Tam and Shannon Yauchzee submitted by Defendants along with Defendants’ reply. Plaintiff objects to Defendants’ new evidence because it is procedurally improper. The court agrees and sustains the objections to both entire declarations. (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537-1538 [determining that new evidence and legal argument are generally not permitted within reply papers].)

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

            Defendants seek summary judgment on the ground that there no facts to support Plaintiff’s SAC. Alternatively, Defendants seek summary adjudication of each cause of action raised in the SAC.

A.    Issues Nos. One to Three: First and Second Causes of Action: Wrongful Termination in Violation of Labor Code § 1102.5

Defendants move for summary adjudication of the first and second causes of action for wrongful termination in violation of Labor Code § 1102.5 on the grounds that (1) Plaintiff’s conduct was not a protected activity, (2) she was not subjected to adverse employment action, (3) there was no causal connection between her conduct and the adverse employment action, and (4)  there were legitimate non-retaliatory reasons for City’s action. (Motion at pp. 4-10.)

Labor Code § 1102.5 provides that “[a]n employer, or any person acting on behalf of the employer, shall not make, adopt, any rule, regulation, or policy preventing an employee from [whistleblowing] if the employee has reasonable cause to believe that the information discloses a violation…” Under Labor Code § 1102.6, the initial burden is on Plaintiff to show “by a preponderance of the evidence, that retaliation for … protected activities was a contributing factor in a contested employment action.” (Lawson v. PPG Architectural Finishes, Inc. (2022) 12 Cal.5th 703, 718.) If the plaintiff succeeds in making this showing, the employer must in turn demonstrate by “clear and convincing evidence” that the alleged adverse employment action would have occurred “for legitimate, independent reasons” even if the employee had not engaged in protected whistleblowing activities. (Id.)

Plaintiff submits evidence that on multiple occasions she complained to her direct supervisor and to Yauchzee that funds from the Community Development Block Grant were being improperly spent in violation of Title 24 of the Code of Federal Regulations, sections 570.1, et seq. (Opposition at pp. 10-12; PSF Nos. 11-13, 22-24, 32, 37-40, 73-75.) With regard to adverse employment actions directed at her, Plaintiff first asserts that she was under an employment contract that precluded her from specific benefits. (PSF No. 45.)  Also, following her complaints, she asserts that her working conditions became intolerable, which prompted her resignation. (Opposition at pp. 12-13; PSF Nos. 29, 45, 58, 67-77.) Plaintiff asserts that retaliation included the following conduct: “(1) exclusion from meetings and correspondence, (2) exclusion from tools and resources for success, (3) denial of due process rights and other benefits, (4) emotional degradation, and (5) statement that, ‘sometimes you just need to leave.’” (Ibid.)

Based on this evidence, the court finds that Plaintiff has met her burden in establishing a preponderance of the evidence that retaliation for protected activities was a contributing factor in a contested employment action. Specifically, she reported violations of law to her supervisors and she was constructively terminated. While Defendants argue that Plaintiff is unable to establish a prima facie case, these arguments are not persuasive.  First, Defendants assert that Plaintiff’s disclosures concerned “internal personal matters,” such as Plaintiff’s wage complaint. (Motion at pp. 4-6, relying on Patten v. Grant Joint Union High School Dist., (2005) 134 Cal.App.4th 13 78, 13 84-85.) This comparison mischaracterizes that Plaintiff notified her supervisors of purported unlawful conduct that involved misappropriation of a federal grant. Second, Defendants assert that Plaintiff did not experience constructive termination because she voluntarily submitted her notice of retirement. (Motion at pg. 7; UMF No. 9.) This assertion does not undermine Plaintiff’s contention that she encountered intolerable working conditions. Consequently, Defendants’ argument that no admissible evidence exists showing a causal connection between the protected activity and the adverse employment action fails.

Plaintiff having met her burden, the burden shifts to Defendants to show with clear and convincing evidence that the alleged adverse employment action would have occurred “for legitimate, independent reasons” even if Plaintiff had not engaged in protected whistleblowing activities. (Lawson, supra, 12 Cal.5th at 718.) In this regard, Defendants focus on the facts that “Plaintiff did not receive the longevity pay the Police Officers Union and SEIU received because she is not a member of either union,” and that she was not selected for certain positions because she never applied for them. (Motion at pp. 9-10; UMF Nos. 82, 101, 104, 106, 138.) Upon review of this evidence, the court find that it does not address the claimed retaliation. For this reason, Defendants have not met their burden.

Accordingly, the court denies summary adjudication of the first and second causes of action.

B.     Issues Nos. Four to Six: FEHA Claims (Third through Twelfth Causes of Action)

At summary judgment for discrimination and retaliation claims, California follows the burden shifting analysis of McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 to determine whether there are triable issues of fact for resolution by a jury.  First, the employer must carry the burden of showing the employee’s action has no merit (Code of Civil Procedure § 437c(p)(2)). The employer may do so by evidence either: 1) negating an essential element of the employee’s claim; or 2) showing some legitimate, nondiscriminatory reason for the action taken against the employee. (Caldwell v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 202.) If the employer meets its burden, the burden then shifts to the employee to produce substantial evidence that the employer’s showing was untrue or pretextual by raising at least an inference of discrimination or retaliation.  (Hersant v. California Department of Social Services (1997) 57 Cal App 4^th 997, 1004-1005.)  

                                                                    i.            Race, Gender, and Age Discrimination

Defendants seek summary adjudication of the third, sixth, and ninth causes of action on the grounds that Plaintiff cannot establish a prima facie case for these claims because there was no evidence of discriminatory motive.

To establish discrimination under FEHA, an employee must prove the following elements: “(1) [the employee] was a member of a protected class, (2) [the employee] was qualified for the position [the employee] sought or was performing competently in the position [the employee] held, (3) [the employee] suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some other circumstance suggests discriminatory motive.” (Dinslage v. City and County of San Francisco (2016) 5 Cal.App.5th 368, 378.)  Constructive discharge is also a form of adverse employment action and arises when working conditions become so intolerable that an employee has no option but to resign. (Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1245, 1251.) “The conditions giving rise to the resignation must be sufficiently extraordinary and egregious to overcome the normal motivation of a competent, diligent, and reasonable employee to remain on the job to earn a livelihood and to serve his or her employer.” (Id. at pg. 1247.)

            Here, Plaintiff has established a prima facie case for discrimination. Plaintiff is a member of a protected class consisting of Hispanic woman over the age of 40. (UMF Nos. 1, 75.) Additionally, Plaintiff was qualified for her job as Housing Manager, which she maintained for several years before her retirement. (PSF Nos. 1-3, 5.) As stated above, Plaintiff has presented evidence to show that she was constructively terminated. In terms of discriminatory animus, Plaintiff has presented evidence to show that female employees are “seen, and not heard” (PSF No. 85) and other non-Hispanic/female managers were not subjected to the same restrictive contract as Plaintiff was (PSF No. 45). Thus, Plaintiff has established a prima facie case for discrimination.

            In an attempt to negate an essential element of discrimination, Defendants raise the following arguments. First, they assert that Plaintiff was not qualified for the positions that she sought. (Motion at pp. 11-12; UMF Nos. 82, 101, 103, 104, 105, 106, and 110.) That assertion is not persuasive because Plaintiff was not seeking an alternative position. Second, Defendants argue that Plaintiff did not suffer an adverse employment action. (Motion at pg. 12.) That argument fails because Plaintiff presents evidence that supports the inference that she was constructively terminated. Last, Defendants assert there is no showing of discriminatory animus because Yauchzee’s statement regarding “junk cars” is innocuous and it was Plaintiff who associated that phrase with Hispanics. (Motion at pg. 13; UMF Nos. 56-57.) However, this last assertion fails because it ignores other instances of discriminatory animus. (PSF Nos. 31-35, 45-48, 51-53, 57.)

            Defendants additionally argue they had legitimate non-discriminatory reasons for not providing Plaintiff longevity pay, not promoting her, and for informing the City Council of the deficit in Plaintiff’s department. (Motion at pp. 9-10, 16.) However, these reasons fail to address why Plaintiff’s contract precluded her from negotiating her contract and receiving other benefits which non-Hispanic/female managers enjoyed. (PSF No. 45.) Additionally, Plaintiff submitted formal complaints regarding Defendants’ discriminatory conduct, but these complaints were not properly investigated. (PSF Nos. 32, 46-48, 50, 54.)  Pretext can be established when an employer fails to adequately investigate issues relating to the employee who is subjected to an adverse employment action. (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 280.)

            Accordingly, because Defendants have not met their burden, the court denies summary adjudication of the third, sixth, and ninth causes of action.

                                                                  ii.            Race, Gender, and Age Harassment

Defendants move for summary adjudication of the harassment claims alleged in the fourth, seventh, and tenth causes of action.

To establish harassment in violation of the FEHA, Plaintiff must show she “was subjected to . . . conduct[] or comments that were (1) unwelcome; (2) because of sex; and (3) sufficiently severe or pervasive to alter the conditions of [her] employment and create an abusive work environment. In addition, she must establish the offending conduct was imputable to her employer. (Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 279 (internal citations omitted.) “In determining what constitutes ‘sufficiently pervasive’ harassment, the courts have held that acts of harassment cannot be occasional, isolated, sporadic, or trivial, rather the plaintiff must show a concerted pattern of harassment of a repeated, routine or a generalized nature.” (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 610.)

Government Code § 12923(b) provides that “[a] single incident of harassing conduct is sufficient to create a triable issue regarding the existence of a hostile work environment if the harassing conduct has unreasonably interfered with the plaintiff’s work performance or created an intimidating, hostile, or offensive working environment.” Moreover, Government Code § 12923(a) provides that a hostile work environment is created “when the harassing conduct sufficiently offends, humiliates, distresses, or intrudes upon its victim, so as to disrupt the victim’s emotional tranquility in the workplace, affect the victim’s ability to perform the job as usual, or otherwise interfere with and undermine the victim’s personal sense of well-being.”

As noted above, evidence has been presented to show that Plaintiff endured harassing comments and behavior from Yauchzee, Thomas, and Martinez about Plaintiff’s gender and race, and she submitted complaints after they had occurred. Also, the evidence suggest that a good faith investigation was not conducted.

Accordingly, the court denies Defendants’ motion for summary adjudication of the fourth, seventh, and tenth causes of action.

                                                                iii.            Race, Gender and Age Retaliation

Defendants move for summary adjudication of the fifth, eighth, eleventh, and twelfth causes of action for retaliation in violation of the FEHA.

A prima facie case for retaliation requires that: (1) Plaintiff engaged in protected activity; (2) was subjected to an adverse employment action; and (3) a causal link exists between the protected activity and adverse employment action. (Pinero v. Specialty Rests. (2005) 130 Cal.App.4th 635, 639.)  

Here, Defendants simply argue that there was a legitimate, nondiscriminatory reason for the adverse employment action. (Motion at pp. 15-16.) However, as previously found, this is insufficient because Plaintiff has presented evidence of pretext. (PSF Nos. 32, 45-48, 50, 54-55, 56, 60-66, 81-82.)

Accordingly, the court denies Defendants’ motion for summary adjudication of the retaliation claims.

C.    Issue No. Seven: Thirteenth Causes of Action for Intentional Infliction of Emotional Distress

Defendants move for summary adjudication of the thirteenth cause of action for intentional infliction of emotional distress on the grounds that the alleged conduct was not outrageous and the claim is barred by the California Workers Compensation law. (Motion at pp. 18-19.)

Defendants’ argument is not persuasive. Wrongful termination can support an IIED claim. (Cabesuela v. Browning-Ferris Ind. (1998) 68 Cal.App.4th 101, 112; Phillips v. Gemini Moving Spec. (1998) 63 Cal.App.4th 563.) Because the court finds Plaintiff’s wrongful termination claim survives summary adjudication, the court also finds Defendants have not met their burden to warrant summary adjudication of IIED. Moreover, under Labor Code § 3601(a), workers’ competition is generally “the exclusive remedy for injury or death of an employee against any other employee of the employer acting within the scope of his or her employment.” (Labor Code § 3601(a); see LeFiell Mfg. Co. v. Superior Court (2012) 55 Cal.4th 275, 283; Cole v. Fair Oaks Fire Protection Dist. (1987) 43 Cal.3d 148, 160. However, when an intentional infliction of emotional distress claim is tethered to a discrimination claim under the FEHA, an exception applies to this exclusive remedy rule. Thus, because Plaintiff’s FEHA causes of action have survived summary adjudication, Defendants’ argument fails.

            Accordingly, the court denies Defendants’ motion for summary adjudication of the thirteenth cause of action for intentional infliction of emotional distress.

D.    Issue No. Eight: Fourteenth Cause of Action for Defamation

Defendants move for summary adjudication of the fourteenth cause of action for defamation because the alleged statements fall under the “common interest” privilege. (Motion at pp. 19-20.) While the “common interest” privilege can apply to communications about job performance (Civ. Code § 47(c)), the privilege is conditional, and actual malice can defeat it. (Hicks v. Richard (2019) 39 Cal. App. 5th 1167, 1178.) Statements “motivated by hatred or ill will toward” the plaintiff or when the defendant “lacked reasonable grounds for believing the truth of the statements” can establish actual malice. (Id.) Because Plaintiff’s FEHA claims have survived summary adjudication, they could be used to support finding actual malice. Accordingly, the court denies Defendants’ motion for summary adjudication of the fourteenth cause of action.

E.     Issue No. Nine: Punitive Damages

Defendants move for summary adjudication on Plaintiff’s claim for punitive damages. (UMF Nos. 133-138.) “To defeat summary judgment on a claim for punitive damages, the burden is on plaintiff to produce ‘clear and convincing evidence’ of malice, fraud or oppression.” (Rutter, Cal. Prac. Guide Civ. Pro. Before Trial Ch. 10-F, ¶ 10:266.2.) Defendants do not, however, offer in their motion any arguments why the court should summarily adjudicate Plaintiff’s entitlement to punitive damages. Regardless, if the jury accepts Plaintiff’s FEHA claims, the same evidence could support the jury finding Defendants acted with malice, oppression, or fraud. (Cloud v. Casey (1999) 76 Cal.app.4th 895, 912.) Accordingly, the court denies Defendants’ motion for summary adjudication of punitive damages.

F.     Immunity

Defendants argue Government Code §§ 821.6 and 820.2 give the Individual Defendants immunity from liability for personnel actions alleged in the SAC. Government Code § 820.2 states: “Except as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused.” Government Code § 821.6 states: “A public employee is not liable for injury caused by his instituting or prosecuting any judicial or administrative proceeding within the scope of his employment, even if he acts maliciously and without probable cause.”

Government Code § 821.6 does not apply here because Defendants’ conduct did not involve “instituting or prosecuting any judicial or administrative proceeding within the scope of [their] employment.” Defendants focus on the allegations about Plaintiff’s salary raise, longevity pay, budget demands, and meetings with the City’s CEO. (Motion at pg. 18.) However, this ignores the alleged discrimination, harassment, and retaliation. Government Code § 820.2’s discretionary immunity thus does not apply because Defendants’ conduct involves allegations that did not involve a planning function of government. (See Caldwell v. Montoya (1995) 10 Cal.4th 972, 981; see also Taylor v. Los Angeles Department of Water and Power (2006) 144 Cal.App.4th 1216, 1239 [disapproved on other ground by Jones v. Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158].) Accordingly, the court denies summary judgment for the Individual Defendants.

CONCLUSION

Based on the foregoing, the court denies Defendants’ motion for summary judgment. The court also denies their alternative motion for summary adjudication in its entirety.

Defendants are ordered to give notice of this ruling.

IT IS SO ORDERED.

DATED:  February 10, 2023

_____________________________

Colin Leis

Judge of the Superior Court