Judge: Donald F. Gaffney, Case: Kadar v. Regency General Contractors, Date: 2022-11-02 Tentative Ruling
TENTATIVE RULING:
Motion for Summary Adjudication
Defendant Regency General Contractors, Inc.’s moves for summary adjudication. For the following reasons, the motion is GRANTED in part and DENIED in part.
The Court may summarily adjudicate any causes of action, affirmative defenses, claims for damage, or issues of duty. (Code Civ. Proc., § 437c(f)(1).) The “specific cause of action, affirmative defense, claims for damages, or issues of duty must be stated specifically in the notice of motion and be repeated, verbatim, in the separate statement of undisputed material facts.” (Cal. Rules of Ct., Rule 3.1350(b); see also Code Civ. Proc., § 1010.)
A party may move for summary adjudication “involving separate and distinct wrongful acts which are combined in the same cause of action. To rule otherwise would defeat the time and cost saving purposes of the amendment and allow a cause of action in its entirety to proceed to trial even where, as here, a separate and distinct alleged obligation or claim may be summarily defeated by summary adjudication. Accordingly, we hold that under subdivision (f) of section 437c, a party may present a motion for summary adjudication challenging a separate and distinct wrongful act even though combined with other wrongful acts alleged in the same cause of action.” (Lilienthal & Fowler v. Superior Court (1993) 12 Cal.App.4th 1848, 1854-1855 [16 Cal.Rptr.2d 458], fn. omitted.)” (Edward Fineman Co. v. Super. Ct. (1998) 66 Cal.App.4th 1110, 1118.)
A party moving for summary adjudication bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact . . . .” (See Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 [re MSJ].) “A prima facie showing is one that is sufficient to support the position of the party in question.” (Id., at p. 851.) The parties must set forth admissible evidence. (Code Civ. Proc., § 437c(d).)
Only when the moving party meets that initial burden does the burden shift to the party opposing summary adjudication to show, by reference to specific facts, the existence of a triable issue as to that affirmative defense or cause of action. (See Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850; Villacres v. ABM Industries, Inc. (2010) 189 Cal.App.4th 562, 575.)
First Cause of Action (Disability Discrimination in Violation of FEHA).
The motion for summary adjudication is DENIED as to the First Cause of Action.
The First Cause of Action alleges that Defendant terminated Plaintiff due to a perceived disability resulting from workplace injury. (Compl. ¶ 13.)
California has adopted the three-stage burden-shifting test established by the United States Supreme Court for trying discrimination claims. (Guz v. Bechtel (2000) 24 Cal.4th at p. 354.) At trial, the so-called McDonnell Douglas test places on the plaintiff the initial burden to establish a prima facie case of discrimination. (Ibid.) If, at trial, the plaintiff establishes a prima facie case, a presumption of discrimination arises. (Id. at p. 355.) At this trial stage, the burden shifts to the employer to rebut the presumption by producing admissible evidence, sufficient to raise a genuine issue of fact and to justify a judgment for the employer, that its action was taken for a legitimate, nondiscriminatory reason. (Id. at pp. 355-356.) If the employer sustains this burden, the presumption of discrimination disappears, and the plaintiff then must have the opportunity to attack the employer’s proffered reasons as pretexts for discrimination or to offer any other evidence of discriminatory motive. (Id. at p. 356.) The McDonnell Douglas test was originally developed for use at trial, not in summary judgment proceedings. (Arteaga v. Brinks, Inc. (2008) 163 Cal.App.4th 327, 343-44.) A defendant employer's motion for summary judgment slightly modifies the order of these showings. (Kelly v. Stamps.com Inc. (2005) 135 Cal.App.4th 1088, 1097.) If, as here, the summary judgment motion relies in whole or in part on a showing of nondiscriminatory reasons for the discharge, the employer satisfies its burden as moving party if it presents evidence of such nondiscriminatory reasons that would permit a trier of fact to find, more likely than not, that they were the basis for the termination. (Id. at pp. 1097-1098.) To defeat the motion, the employee then must adduce or point to evidence raising a triable issue that would permit a trier of fact to find by a preponderance that intentional discrimination occurred. (Id. at p. 1098; see also Scotch v. The Art Inst. of Cal.-Orange Cty., Inc. (2009) 173 Cal.App.4th 986, 1004-1005.) The employee must offer evidence that (1) the employer’s stated reason for the adverse employment action was untrue or pretextual, (2) the employer acted with a discriminatory animus, or (3) a combination of the two. (Batarse v. Service Employees Internat. Union, Local 1000 (2012) 209 Cal.App.4th 820, 834.)
Here, the parties do not dispute that Plaintiff suffered from a physical disability and was terminated from employment. (See Pltf.’s Sep. St. Nos. 25-26, 31.) Defendant satisfies its burden to show that Plaintiff was discharged for nondiscriminatory reasons—namely, poor work performance. Defendant submits evidence that after a thorough discussion, Regency managers decided on 07/02/2019 to terminate Kadar’s employment. (Def.’s Sep. St. Nos. 20-21 [and evidence cited therein].) Defendant submits text message correspondence wherein Plaintiff’s supervisor advised Plaintiff of his mistakes. (Tenpas Decl., Ex. A.)
Plaintiff, though, meets his shifted burden to show the reason was pretextual. First, Plaintiff submits deposition testimony that he was never given any negative performance review or criticism regarding his work performance. (Kadar Depo. at 70:24-71:12.) Second, Plaintiff submits evidence that he complained of his hip injury to his supervisor several times in the weeks leading up to his termination—with the intent that the supervisor would recognize that Plaintiff was injured and advise Plaintiff not to work. (Ochoa Decl., Ex. A [Kadar Depo.] at 88:17-89:15, 91:4-92:6; Def.’s Sep. St. No. 21 [and evidence cited therein].) To the extent Defendant argues that Plaintiff’s deposition testimony contradicts his discovery responses regarding timing of the injury, that is not necessarily the case. Plaintiff’s interrogatory responses state that Plaintiff suffered a workplace injury “on or about 07/08/2019.” (Bishop Decl. ¶ 5, Ex. C at Resp. to Form Interrog.-Employment Nos. 202.1, 217.1 [re RFA No. 7].) In fact, the contemporaneous e-mail correspondence shows that the injury took place prior to 07/08/2019. (See Tenpas Decl., Ex. B.) On 07/08/2019, Plaintiff Kadar e-mailed Mr. Tenpas to inform him that Plaintiff’s “hip has been causing [him] an increasing amount of pain going back prior to last week.” (Tenpas Decl., Ex. B.)
That is sufficient to meet Plaintiff’s burden on summary adjudication.
Second Cause of Action (Retaliation in Violation of FEHA)
The motion for summary adjudication is GRANTED as to the Second Cause of Action.
The Second Cause of Action alleges that Plaintiff was terminated in retaliation for exercising his right to request a reasonable accommodation for his perceived disability.
FEHA provides that it is unlawful to retaliate against a person “because the person has opposed any practices forbidden under [Government Code Sections 12900 – 12966] or because the person has filed a complaint, testified, or assisted in any proceeding under [the FEHA].” (Gov. Code, § 12940(h).) The elements of a retaliation claim under the FEHA are: (1) plaintiff employee engaged in a “protected activity,” (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer's action. (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.)
Here, Plaintiff’s claim fails as a matter of law. The Complaint alleges that Plaintiff was terminated in retaliation for exercising his right to request an accommodation. Requesting an accommodation, however, does not constitute “protected activity” under FEHA. (See Gov. Code, § 12940(h).)
Even if the court ignored this fatal defect, the court would still grant summary adjudication in favor of Defendant. Unlike the discrimination claim, which alleges Defendant discriminated against Plaintiff due to Plaintiff’s injury, the retaliation claim alleges Defendant retaliated due to Plaintiff’s request for accommodation. The undisputed facts show that Defendant decided to terminate Plaintiff on 07/02/2019, six days before he first requested an accommodation. (See Pltf.’s Sep. St. Nos. 21, 26; see also Ochoa Decl., Ex. A [Kadar Depo.] at 91:4-92:6 [testifying that although he notified Mr. Tenpas of his injury, Plaintiff did not request an accommodation in the weeks prior to his termination].)
Third Cause of Action (Wrongful Termination)
The motion for summary adjudication is DENIED as to the Third Cause of Action.
The Third Cause of Action alleges Defendant’s termination violates public policy because it was discriminatory and retaliatory. (Compl. ¶¶ 23-24.)
To state this claim, a plaintiff must allege that (i) the plaintiff was employed by the defendant; (ii) the defendant discharged the plaintiff; (iii) the alleged violation of public policy was a substantial motivating reason for the plaintiff’s discharge; and (iv) the discharge caused the plaintiff harm. (CACI 2430; see also Holmes v. General Dynamics Corp. (1993) 17 Cal.App.4th 1418, 1426.)
Courts have recognized a cause of action for wrongful discharge based on discrimination in violation of FEHA, retaliation for testifying truthfully, refusing to commit a crime, reporting criminal activity to proper authorities, and disclosing illegal, unethical, or unsafe practices. (See, e.g., City of Moorpark v. Super. Ct. (1998) 18 Cal.4th 1143, 1159 [citing Rojo v. Kliger (1990) 52 Cal.3d 65, 90-91.)
Here, as discussed above, there exist disputed facts as to whether Defendant’s termination of Plaintiff’s employment constitutes disability discrimination. Consequently, there also exist disputed material facts as to whether that termination violated public policy.
Fourth Cause of Action (IIED)
The motion for summary adjudication is GRANTED as to the Fourth Cause of Action.
The Fourth Cause of Action alleges that Defendant’s alleged conduct was outrageous and unlawful and outside the bounds of all decency.
To state a claim for intentional infliction of emotional distress, plaintiff must allege: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct. (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050-51.) “A defendant’s conduct is ‘outrageous’ when it is so ‘extreme as to exceed all bounds of that usually tolerated in a civilized community.’ And the defendant’s conduct must be ‘intended to inflict injury or engaged in with the realization that injury will result.’” (Id.) Further, that conduct must be directed at the plaintiff, or occur in the presence of a plaintiff of whom the defendant is aware. (Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 1002 [re groundwater contamination].)
Defendant contends the claim fails as a matter of law because the alleged conduct is not extreme, outrageous and beyond the bounds of human decency. Plaintiff chose not to address this argument and, therefore, concedes the argument. (DuPont Merck Pharmaceutical Co. v. Sup. Ct. (2000) 78 Cal.App.4th 562, 566; Westside Center Associates v. Safeway Stores 23, Inc. (1996) 42 Cal.App.4th 507, 529; Glendale Redevelopment Agency v. Parks (1993) 18 Cal.App.4th 1409, 1424.)
Fifth Cause of Action (NIED)
The motion for summary adjudication is DENIED as to the Fifth Cause of Action.
The Fifth Cause of Action alleges that Defendant’s wrongful termination of Plaintiff’s employment constitutes negligent infliction of emotional distress.
Here, Defendant fails to meet its burden. Defendant argues that claims for negligent infliction of emotional distress fall within the exclusive remedy provisions of the workers’ compensation system. The exclusivity rule, however, does not bar a suit for emotional distress damages attributed to unlawful discrimination or other misconduct that is not a normal incident of employment. (See Jones v. Los Angeles Comm. College District (1988) 198 Cal.App.3d 794, 802 [holding a claim for emotional and psychological damages is not barred where distress was allegedly caused by employer’s illegal discriminatory practices].)
Defendant to give notice.