Judge: Cynthia A Freeland, Case: 37-2022-00010632-CU-WT-NC, Date: 2024-06-14 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - June 13, 2024

06/14/2024  01:30:00 PM  N-27 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Cynthia A. Freeland

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Civil - Unlimited  Wrongful Termination Motion Hearing (Civil) 37-2022-00010632-CU-WT-NC BUSALACCHI-RYDER VS SOLANA BEACH SCHOOL DISTRICT [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion for Judgment Not Withstanding the Verdict, 05/07/2024

Defendant Solana Beach School District ('Defendant')'s motion for judgment notwithstanding the verdict is denied.

Factual Background and Procedural History On March 21, 2022, Plaintiff Lisa Busalacchi-Ryder ('Plaintiff') commenced this action by filing a Complaint against Defendant alleging causes of action for: (1) interference under the California Family Rights Act (the 'CFRA') (Cal. Gov't Code § 12945.2(q)); (2) retaliation under the CFRA (Cal. Gov't Code § 12945.2(l)(1)); and (3) school activities discrimination (Cal. Lab. Code § 230.8). See ROA No. 1. A jury trial was conducted between February 21 and 29, 2024, after which time the matter was submitted to the jury for deliberation. See ROA Nos. 217, 221, 225, 229, 230, 246. On March 4, 2024, the jury returned a special verdict: (1) in Plaintiff's favor on the first and third causes of action, and (2) in Defendant's favor on the second cause of action. See ROA No. 239. On April 12, 2024, the court entered a $186,711.00 Judgment in Plaintiff's favor consistent with the jury's special verdict. See ROA No. 248. On May 3, 2024, Defendant filed its Notice of Intention to File Motion for Judgment Notwithstanding the Verdict. See ROA No. Defendant now asks the court to enter judgment notwithstanding the verdict under California Code of Civil Procedure ('CCP') § 629.

Legal Analysis CCP § 629(a) provides that '[t]he court, before the expiration of its power to rule on a motion for a new trial, either of its own motion, after five days' notice, or on motion of a party against whom a verdict has been rendered, shall render judgment in favor of the aggrieved party notwithstanding the verdict whenever a motion for a directed verdict for the aggrieved party should have been granted had a previous motion been made.' Cal. Code Civ. P. § 629(a). The purpose of a motion for JNOV is to allow the non-prevailing party to prevail as a matter of law even when all of the relevant evidence has been admitted and a verdict has been rendered contrary to the state of the evidence. See DLI Properties LLC v. Hill (2018) 29 Cal. App. 5th Supp. 1, 6. In essence, a motion for JNOV challenges whether that evidence was sufficient to prove the claims asserted by the opposing party and now embodied in the jury's verdict. See Hauter v. Zogarts (1975) 14 Cal. 3d 104, 110. The Third District Court of Appeal has set forth the rules governing a motion for JNOV: 'The trial court's discretion in granting a motion for judgment notwithstanding the verdict is severely limited.' (Teitel v. First Los Angeles Bank (1991) 231 Cal.App.3d 1593, 1603, 282 Cal.Rptr. 916.) ' 'The trial judge's power to grant a judgment notwithstanding the verdict is identical to his power to grant a Calendar No.: Event ID:  TENTATIVE RULINGS

3126265 CASE NUMBER: CASE TITLE:  BUSALACCHI-RYDER VS SOLANA BEACH SCHOOL DISTRICT  37-2022-00010632-CU-WT-NC directed verdict [citations]. The trial judge cannot reweigh the evidence [citation], or judge the credibility of witnesses. [Citation.] If the evidence is conflicting or if several reasonable inferences may be drawn, the motion for judgment notwithstanding the verdict should be denied. [Citations.] 'A motion for judgment notwithstanding the verdict of a jury may properly be granted only if it appears from the evidence, viewed in the light most favorable to the party securing the verdict, that there is no substantial evidence to support the verdict. If there is any substantial evidence, or reasonable inferences to be drawn therefrom, in support of the verdict, the motion must be denied.' [Citation.]' ' (Clemmer v. Hartford Insurance Co. (1978) 22 Cal.3d 865, 877-878, 151 Cal.Rptr. 285, 587 P.2d 1098.) The trial court cannot consider witness credibility. (Id. at p. 877, 151 Cal.Rptr. 285, 587 P.2d 1098.) Hansen v. Sunnyside Products, Inc. (1997) 55 Cal. App. 4th 1497, 1510. 'Substantial evidence' is a quantum of evidence that is 'enough to allow a reasonable jury to have reached the challenged result.' College Hospital, Inc. v. Sup. Ct. (1994) 8 Cal. 4th 704, 715. However, '[s]ubstantial evidence is not 'synonymous with 'any' evidence. It must be reasonable . . . ., credible, and of solid value . . . .' [Citation.]' OCM Principal Opportunities Fund, L.P. v. CIBC World Markets Corp. (2007) 157 Cal. App. 4th 835, 845 (quoting Kuhn v. Department of General Services (1994) 22 Cal. App. 4th 1627, 1633). The court may, under appropriate circumstances, grant a partial JNOV. See Beavers v. Allstate Ins. Co. (1990) 225 Cal. App. 3d 310, 314.

The court finds that Defendant has not demonstrated entitlement to judgment notwithstanding the verdict. As set forth above, the court's discretion to grant a motion for judgment notwithstanding the verdict is even more limited than ruling on a motion for new trial. Unlike a motion for new trial, the court cannot reweigh the evidence or judge the credibility of witnesses. If evidence is conflicting or several reasonable inferences may be drawn, then the motion must be denied. Toward that end, the court finds that judgment notwithstanding the verdict is inappropriate as Plaintiff provided substantial evidence at trial to support the jury's verdict.

As to the first cause of action, California Government Code § 12945.2(q) provides that '[i]t shall be an unlawful employment practice for an employer to interfere with, restrain, or deny the exercise of, or the attempt to exercise, any right provided under this section.' Cal. Gov't Code § 12945.2(q). To prevail on her first cause of action for violation of CFRA rights, Plaintiff was required to prove that: (1) she was eligible for family care or medical leave; (2) she requested or took leave to care for her child (Nora Ryder) who had a serious health condition; (3) she provided Defendant with reasonable notice of her need for family care or medical leave, including its expected timing and length; (4) Defendant, having received reasonable notice, (a) did not inquire further of Plaintiff, if necessary, to determine if Plaintiff was requested CFRA leave, or (b) did not inquire further of Plaintiff to obtain necessary information concerning the leave; (5) she was harmed; and (6) defendant's conduct was a substantial factor in causing Plaintiff's harm. See CACI Jury Instruction No. 2600. The jury found that Plaintiff had proven the foregoing elements. Defendant, by way of the pending motion, argues that Plaintiff did not provide substantial evidence as to the second, third, and fifth elements. The court respectfully disagrees.

As to the second element, the court finds that Plaintiff provided substantial evidence that Nora suffers from a serious health condition that requires continuing treatment. A 'serious health condition' is defined as 'an illness, injury, impairment, or physical or mental condition that involves either of the following: (A) Inpatient care in a hospital, hospice, or residential health care facility. (B) Continuing treatment or continuing supervision by a health care provider.' Cal. Gov't Code § 12945.2(b)(13). Defendant contends that the evidence elicited at trial shows that between January and March 2021, Nora was being pulled out of school and picked up early because she did not want to be in class – not because of any serious health condition. However, substantial evidence was present to support the jury's finding on this point. More specifically, Dr. Sharon Lerner-Baron, a licensed clinical psychologist, testified that she began treating Nora in March 2020 and continued doing so throughout 2021. Dr. Lerner-Baron's testimony was limited by privilege and the scope of the release provided by Plaintiff. However, Dr.

Lerner-Baron did testify that, by February or March 2021, she had diagnosed Nora with generalized anxiety disorder. While Dr. Lerner-Baron could not testify specifically as to her treatment plan for Nora, she did testify more generally that she crafts treatment plans for her patients once they have received a Calendar No.: Event ID:  TENTATIVE RULINGS

3126265 CASE NUMBER: CASE TITLE:  BUSALACCHI-RYDER VS SOLANA BEACH SCHOOL DISTRICT  37-2022-00010632-CU-WT-NC diagnosis. Toward that end, Dr. Lerner-Baron indicated that she was treating Nora one day per week at a standing appointment that lasted roughly 50 minutes. Based on the foregoing, a reasonable inference can be drawn that Nora suffered from a serious health condition, i.e., generalized anxiety disorder, and was under a continuing treatment plan with Dr. Lerner-Baron. The jury apparently found Dr.

Lerner-Baron's testimony on this issue credible.

As to the third element, the court finds that Plaintiff provided substantial evidence that Plaintiff provided Defendant with reasonable notice of her need for family care or medical leave. Defendant contends that the evidence proffered at trial, namely: (1) a February 1, 2021 email from Plaintiff to Plaintiff's supervisor, Superintendent Jodee Brentlinger, and (2) various leave forms, was not sufficient to provide Defendant with the requisite notice that Plaintiff needed leave to care for Nora relating to the continuing treatment by Dr. Lerner-Baron. This issue was addressed by way of Special Jury Instruction No. 4, which provided that: Unless an employer waives its employees' notice obligations described herein, an employee shall provide at least verbal notice sufficient to make the employer aware that the employee needs CFRA leave, and the anticipated timing and duration of the leave.

The employee need not expressly assert rights under CFRA or FMLA or even mention CFRA or FMLA to meet the notice requirement; however, the employee must state the reason the leave is needed, such as for medical treatment. The mere mention of 'vacation' or other paid time off does not make the notice insufficient, as long as the underlying reason for the leave is CFRA-qualifying, and the employee communicates that reason to the employer. Timing and content of the notice may vary, depending on the facts and circumstances.

The employer should inquire further of the employee if necessary to determine whether the employee is requesting California Family Rights Act ('CFRA') leave and to obtain necessary information concerning the leave (i.e., commencement date, expected duration, and other permissible information).

Under all circumstances, it is the employer's responsibility to designate leave, paid or unpaid, as CFRA or CFRA/FMLA (Family Medical Leave Act) qualifying, based on information provided by the employee, and to give notice of the designation to the employee.

The employer shall respond to the leave request as soon as practicable and in any event no later than five business days after receiving the employee's request.

See Plaintiff's Ex. E; Soria v. Univision Radio L.A., Inc. (2016) 5 Cal. App. 5th 570, 603.

To start, substantial evidence was presented that Defendant waived the foregoing notice requirement.

Plaintiff testified that the leaves at issue regarding picking up Nora from Solana Pacific and either taking her home or bringing her to Carmel Creek were under an hour. Plaintiff further testified that Ms.

Brentlinger, early in her career as superintendent, informed Plaintiff that Plaintiff did not need to submit leave forms for anything under an hour and that Ms. Brentlinger would 'rip[] them up' out of personal or professional autonomy. Plaintiff nevertheless did inform Ms. Brentlinger when she needed to leave campus for under an hour. Plaintiff's secretary, Mashell Ingrande, corroborated Plaintiff's testimony, testifying that she overhead a conversation between Ms. Brentlinger and Plaintiff during which Ms.

Brentlinger told Plaintiff that it was unnecessary to submit leave forms for short periods of time and that any such forms would be ripped up. Defendant contends that Plaintiff and Ms. Ingrande were not credible on this point; however, the court, in ruling on a motion for judgment notwithstanding the verdict, cannot make such a credibility determination. Defendant further argues that Ms. Brentlinger categorically denied ever saying this; however, the jury clearly found Ms. Ingrande and Plaintiff more credible on that issue, and the court will not disturb that finding.

Notwithstanding the jury's findings as to waiver, the court finds that Plaintiff provided sufficient evidence that she, in fact, did provide Defendant with reasonable notice of her need for family care or medical Calendar No.: Event ID:  TENTATIVE RULINGS

3126265 CASE NUMBER: CASE TITLE:  BUSALACCHI-RYDER VS SOLANA BEACH SCHOOL DISTRICT  37-2022-00010632-CU-WT-NC leave. Plaintiff testified that she, before February 2021, informed Ms. Brentlinger that Nora has generalized anxiety disorder. Plaintiff further testified that neither Ms. Brentlinger nor anyone else at Solana Beach School District asked her for further information regarding her February 1, 2021 email (but she would have provided such information had it been requested). Moreover, Plaintiff sent additional leave requests beyond the February 1, 2021 email. For instance, on February 7, 2021, Plaintiff sent Ms.

Brentlinger an email stating that Plaintiff would be out of the office for part of the morning on February 8, 2021 for 'Nora's medical evaluation' which, according to that communication, was related to the two-week period in February 2021 during which Nora was underdoing testing for IEP eligibility. Plaintiff, on her February 8, 2021 leave request form, checked the box for 'Sickness/Medical Appointment-Family' and indicated that it was for 'medical appt. for daughter'. Ms. Brentlinger did not correct this request or demand further information. Additionally, Plaintiff submitted March 2021 text messages between herself and Ms. Brentlinger during which Plaintiff indicated that she would be working from home because 'Nora is nervous to be alone' and that Plaintiff would 'put in for a few sick hours to care for child'. Plaintiff's March 5, 2021 leave request form, in which Plaintiff again checked the box for 'Sickness/Medical Appointment-Family', confirms that Plaintiff needed three hours of leave because the 'Team' asked for Nora to be picked up from school for a 'modified day'. The 'Team' is Nora's IEP team that was evaluating her based on a disability, i.e., her generalized anxiety disorder.

Indeed, Education Specialist Jennifer Oakley, who worked with Nora during the 2020-21 academic year, contacted Plaintiff on multiple occasions to pick up Nora before the school day was completed owing to Nora's observed anxiety. Defendant contends that Plaintiff failed to provide evidence that she needed leave to care for Nora related to her continuing treatment from Dr. Lerner-Baron; however, no such requirement exists.

As to the fifth element, the court finds that Plaintiff provided substantial evidence that Defendant's CFRA interference was a substantial factor in causing Plaintiff's harm. Defendant contends that the evidence elicited at trial showed that Ms. Brentlinger always approved Plaintiff's leave requests and thus there was no interference with Plaintiff's CFRA rights. The court respectfully disagrees. The April 28, 2021 Notice of Intent to Recommend Release and Reassignment from Administrative Position form sent by Ms. Brentlinger to Plaintiff, in which Ms. Brentlinger informed Plaintiff that she would be reassigned to a Speech/Language Pathologist position for the 2021-22 school year, set forth various reasons for such findings. Several such reasons related to Plaintiff's need to pick up Nora due to Nora's generalized anxiety disorder. To the extent Defendant argues that the jury's findings are incongruous with its determination that Defendant did not retaliate against Plaintiff (Plaintiff's second cause of action), such assertion is not well taken. For example, it is possible that the jury found that Defendant could not have retaliated against Plaintiff for taking leave because Defendant had not allowed Plaintiff to take CFRA leave in the first place. Regardless, the Special Verdict Form on the issue of damages is written in the disjunctive. More specifically, it asks the jury whether they answered 'yes' to Question Numbers 5, 7, or 13 and, if so, to calculate her damages accordingly. It is entirely possible that the jury's damages award stemmed from their finding that Defendant was liable for school activities discrimination (Question Number 13) as opposed to a violation of Plaintiff's CFRA rights (Question Number 5).

Accordingly, the court denies Defendant's motion notwithstanding the verdict as to the first cause of action.

As to the third cause of action, California Labor Code ('CLC') § 230.8 provides in relevant part that: (a)(1) An employer who employs 25 or more employees working at the same location shall not discharge or in any way discriminate against an employee who is a parent of one or more children of the age to attend kindergarten or grades 1 to 12, inclusive, or a licensed child care providers, for taking off up to 40 hours each year, for the purpose of either of the following child-related activities: (A) To find, enroll, or reenroll his or her child in a school or with a licensed child care provider, or to participate in activities of the school or licensed child care provider of his or her child, if the employee, prior to taking the time off, gives reasonable notice to the employer of the planned absence of the employee. Time off pursuant to this subparagraph shall not exceed eight hours in any calendar month of Calendar No.: Event ID:  TENTATIVE RULINGS

3126265 CASE NUMBER: CASE TITLE:  BUSALACCHI-RYDER VS SOLANA BEACH SCHOOL DISTRICT  37-2022-00010632-CU-WT-NC the year.

(B) To address a child care provider or school emergency, if the employee gives notice to the employer.

Cal. Lab. Code § 230.8(a)(1). A 'child care provider or school emergency' means that an employee's child cannot remain in a school or with a child care provider due to one of the following: (A) The school or child care provider has requested that the child be picked up, or has an attendance policy, excluding planned holidays, that prohibits the child from attending or requires the child to be picked up from the school or child care provider.

(B) Behavioral or discipline problems.

(C) Closure or unexpected unavailability of the school or child care provider, excluding planned holidays.

(D) A natural disaster, including, but not limited to, fire, earthquake, or flood.

Cal. Lab. Code § 230.8(e)(2).

Defendant contends that Plaintiff failed to provide substantial evidence that she: (1) had a child care provider or school emergency, and (2) provided Defendant with notice of the school emergency. The court respectfully disagrees. As to the first element, Defendant argues that no evidence was presented that the school provider requested that Nora be picked up, and that there was no situation where Nora could not have remained at school. However, the statute does not require that Plaintiff prove that Nora could not have remained at school – it merely requires that Nora's school requested that Plaintiff pick up her daughter. Toward that end, it is irrelevant whether Nora herself requested that she be picked up – the reason(s) for the school making the request do not matter for purposes of CLC § 230.8. That being said, the evidence offered at trial, including text messages between Ms. Oakley and Plaintiff, Plaintiff's cross-examination testimony, and Ms. Oakley's testimony, show sufficiently that Nora's school expected Plaintiff to pick up her daughter owing to Nora's anxiety.

As to the second element, the court, for the above reasons has determined that Plaintiff provided substantial evidence that she gave Defendant reasonable notice of her planned absences, including in her February 1, 2021 email and March 5, 2021 text message to Ms. Brentlinger.

Accordingly, the court denies Defendant's motion for judgment notwithstanding the verdict as to the third cause of action.

Conclusion In light of the foregoing, the court denies Defendant's motion for judgment notwithstanding the verdict.

This is the tentative ruling for the hearing at 1:30 p.m. on Friday, June 14, 2024. If no party appears at the hearing, this tentative ruling will become the order of the court as of June 14, 2024. If the parties are satisfied with the court's tentative ruling or do not otherwise wish to argue the motion, they are encouraged to give notice to the court and each other of their intention not to appear, though this notice is not required.

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