Judge Daniel M. Crowley, Case Number: 20STCV06767, Date: 2024-03-01 Tentative Ruling

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Plaintiff Nancy Valla (“Valla”) (“Plaintiff”) moves unopposed for this Court to reconsider its ruling granting summary adjudication of the 9th and 10th causes of action, and prayer for punitive damages. (Notice of Motion, pg. 1; C.C.P. §1008.)

On August 12, 2020, Plaintiff filed her initial complaint in the instant action against Defendants. On December 5, 2022, Plaintiff filed the operative FAC against Defendants alleging ten causes of action for (1) retaliation in violation of Labor Code §1102.5; (2) retaliation and discrimination in violation of Health and Safety Code §1278.5; (3) retaliation in violation of FEHA, Government Code §12940(h); (4) failure to engage in the interactive process in violation of FEHA, Government Code §12940(n); (5) failure to accommodate disability in violation of FEHA, Government Code §12940(m)(1); (6) disability discrimination in violation of FEHA, Government Code §12940(a); (7) intentional infliction of emotional distress; (8) failure to prevent discrimination in violation of FEHA, Government Code §12940(k); (9) wrongful termination in violation of public policy; and (10) wrongful termination in violation of FEHA. (See FAC.)

Plaintiff filed the instant motion on December 29, 2023. As of the date of this hearing no opposition has been filed.

C.C.P. §1008(a) “requires that a motion for reconsideration be based on new or different facts, circumstances, or law. A party seeking reconsideration also must provide a satisfactory explanation for the failure to produce the evidence at an earlier time.” (See C.C.P. §1008(a); New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 212.)

Any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order, file a motion for reconsideration. (See C.C.P. §1008(a).)

Whether “new” facts alleged are sufficient to satisfy the requirements of CCP § 1008(b) is a question confided to the sound discretion of the trial court, with which the appellate court will not interfere absent an obvious showing of abuse. (Graham v. Hansen (1982) 128 Cal. App. 3d 965, 971.)

As a preliminary matter, the Court will consider Plaintiff’s motion in light of the fact Defendants’ counsel was directed to provide notice to Plaintiff of the Court’s ruling on the 12/18/23 Minute Order and did not appear to do so. (See Decl. of Grau ¶5 [“To date, Plaintiff has yet to receive written notice of said order but learned of the decision by checking the Court’s website.”].)

Plaintiff’s counsel declares Plaintiff submitted her opposition to the motion for summary judgment on November 7, 2023. (Decl. of Grau ¶3.) Plaintiff’s counsel declares on information and belief that the deposition of Denise Livingston (“Livingston”) was conducted on November 10, 2023. (Decl. of Grau ¶6, Exh. A.) Plaintiff’s counsel declares on information and belief that Carolyn Caldwell’s (“Caldwell”) deposition was conducted on November 1, 2023. (Decl. of Grau ¶7, Exh. B.)

Plaintiff’s counsel declares that in both Livingston’s and Caldwell’s deposition transcripts are new facts that were not previously included in Plaintiff’s Opposition to Defendants’ Motion for Summary Judgment or in the alternative, Motion for Summary Adjudication, such as the fact that Livingston did not draft any of the letters she personally signed and sent to Plaintiff, nor did she participate in the process to determine any of the information being conveyed in any of the letters. (Decl. of Grau ¶8.) Plaintiff’s counsel declares Livingston also testified that she did not draft any of the letters that were sent out, but that they were in fact drafted by Katherine Wargnier, the same individual who worked with Caldwell to “embellish the reasons” as to how Plaintiff’s reinstatement would cause substantial grievous economic injury to Dignity Health. (Decl. of Grau ¶8.)

Plaintiff’s counsel declares Livingston’s testimony also revealed that although she sent Plaintiff letters about designating Plaintiff as a “key employee” and what consequences would occur if Plaintiff were to not be able to return by August 1, 2019, Livingston was not a part of the discussions to make those decisions. (Decl. of Grau ¶9.)

Plaintiff’s counsel declares Caldwell’s second deposition revealed that Dignity Health chose the dates of return that were being demanded of Plaintiff in these letters not because it would cause substantial economic harm to the hospital, but because that was when Plaintiff’s twelve weeks of FMLA would have been exhausted, removing Plaintiff’s job protection and allowing Dignity Health to replace her position. (Decl. of Grau ¶10.)

The Court declines to grant Plaintiff’s motion for reconsideration despite the evidence offered by Plaintiff in the deposition testimonies referenced in counsel’s affidavit. Plaintiff conceded her argument on the 10th cause of action and prayer for punitive damages by not addressing Defendants’ arguments in her opposition. (See 12/18/23 Minute Order, pg. 17.) Further, Plaintiff conceded at the hearing on the motion that her employment was not terminated, which undercuts an essential element of a cause of action for wrongful termination in violation of public policy, the 9th cause of action. (See id.)

Hon. Daniel M. Crowley

Judge of the Superior Court