Judge: Douglas W. Stern, Case: 20STCV36673, Date: 2022-09-19 Tentative Ruling

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Case Number: 20STCV36673    Hearing Date: September 19, 2022    Dept: 52

Tentative Ruling:

Defendant Pacific Advisors, LLC’s Motion for Summary Judgment or, in the Alternative, Summary Adjudication of Issues

Defendant Pacific Advisors, LLC, erroneously named and sued as “Guardian Life Insurance/Pacific Advisors,” moves for summary judgment of plaintiff Curtis L. Clark’s first amended complaint or for summary adjudication of each cause of action.

Requests for Judicial Notice

          Defendant requests judicial notice of four documents.  Exhibits A through C are court records.  Under Evidence Code section 452, subdivision (d)(1), the records are subject to judicial notice of their existence, contents, and legal effects, but not the truth of statements made therein.  Exhibit D, plaintiff’s administrative complaint filed with the Department of Fair Employment and Housing is an official act of the executive branch of the State of California subject to judicial notice under Evidence Code section 452, subdivision (c).

          The court grants defendant’s request for judicial notice of Exhibits A through D.

Summary Judgment or Adjudication

Courts grant summary judgment or adjudication where no triable issues of fact exist and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c); Villa v. McFerren (1995) 35 Cal.App.4th 733, 741.)  A moving defendant can establish “that a cause of action has no merit if the party has shown that one or more elements… cannot be established.”  (Code Civ. Proc., § 437c, subd. (p)(2).)

Defendant meets its burden of proving plaintiff cannot establish the elements of his three causes of action.  Defendant is entitled to judgment as a matter of law.  Defendant relies on undisputed evidence: the court’s order on May 4, 2022, deeming admitted the truth of matters specified in defendant’s requests for admission, set one.  (RJN, Ex. A.)  “[A] deemed admitted order establishes, by judicial fiat, that a nonresponding party has responded to the requests by admitting the truth of all matters contained therein.”  (Wilcox v. Birtwhistle (1999) 21 Cal.4th 973, 979.)   

Plaintiff’s first amended complaint alleges three causes of action under the Fair Employment and Housing Act (FEHA): (1) race discrimination, (2) age discrimination, and (3) retaliation.

All three causes of action first require that plaintiff was defendant’s employee.  Under FEHA, “[t]he fundamental foundation for liability is the ‘existence of an employment relationship between the one who discriminates against another and that other who finds himself the victim of that discrimination.’ ”  (Vernon v. State of California (2004) 116 Cal.App.4th 114, 123.)  Except for harassment claims, FEHA applies to employees, not independent contractors.  (Bradley v. Department of Corrections & Rehabilitation (2008) 158 Cal.App.4th 1612, 1623-1628.)

Plaintiff cannot establish that element of his three causes of action.  By the court’s order on May 4, 2022, deeming matters admitted, plaintiff admitted request for admission No. 9: “Admit that as a field representative, YOU were an independent contractor of Pacific.”  (RJN, Ex. C, p. 34.)  The requests define “Pacific” to mean “Pacific Advisors LLC.”  (Id., p. 32.)  Defendant cannot be liable for employment discrimination or retaliation against plaintiff because he was an independent contractor, not an employee. 

All three causes of action also require that defendant subjected plaintiff to an “adverse employment action.”  (Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 373 [discrimination]; Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042 [retaliation].)  Plaintiff cannot establish that element.  By the court’s order deeming matters admitted, plaintiff admitted that he “resigned from Pacific.”  (RJN, Ex. C, p. 34, No. 1; p. 35, No. 14.)  There is no evidence he was terminated or suffered any other adverse employment action.

Plaintiff has also admitted he has no documentation to support his three causes of action.  “A plaintiff’s ‘factually devoid’ discovery responses may be used to shift the burden of production onto the plaintiff when the ‘logical inference’ is that the plaintiff possesses no facts to support his or her claims.”  (Bayramoglu v. Nationstar Mortgage LLC (2020) 51 Cal.App.5th 726, 733.) 

By the court’s order, plaintiff admitted he does “not have any documentation which demonstrates that [he was] subject to discrimination and/or retaliation by Pacific” (RJN, Ex. C, p. 34, No. 6) and does “not have any documentation which demonstrates that [he was] subject to race/age discrimination and/or retaliation by Pacific” (Id., p. 34, No. 7).  The logical inference from these admissions is that plaintiff possesses no evidence to support his claims. 

Plaintiff did not file an opposition, submit any evidence, or otherwise attempt to dispute defendant’s evidence.   

Disposition

          The court grants defendant Pacific Advisors, LLC’s motion for summary judgment.