Judge Douglas W. Stern, Case 21STCV23762 2022-09-28 Tentative Ruling

Defendants RN Hospitality Inc. and Nitesh P. Kakkad’s Motion for Summary Judgment or, in the Alternative, Summary Adjudication

Defendants RN Hospitality Inc. (RN) and Nitesh P. Kakkad move for summary judgment on plaintiff Zuryzadey Ortiz’s complaint and for summary adjudication of the first and fifth causes of action alleged in RN’s cross-complaint.

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).)

Defendants meet their burden of proving plaintiff cannot establish the elements of any of her 14 causes of action. Defendants rely on undisputed evidence: the court’s order on June 7, 2022, deeming admitted the truth of matters specified in defendant RN’s requests for admission, set two. (Ahn Decl., Exs. 4-6.) “[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 cause of action alleges defendants “terminated her employment in retaliation or exercise of protected rights.” (Comp., ¶ 44.) To establish a prima facie case, plaintiff must show (1) a fundamental public policy; (2) an adverse employment action in violation of the public policy; and (3) resulting damages. (Stevenson v. Superior Court (1997) 16 Cal.4th 880, 894-895.)

Plaintiff cannot establish the elements of this cause of action. By the court’s order deeming matters admitted, she admitted “that DEFENDANTS’ termination of [her] employment did not violate California law, including but not limited to the Fair Housing and Employment Act [sic].” (Ahn Decl., Ex. 4, RFA No. 17.)

Plaintiff’s second cause of action alleges defendants discriminated against her “due to having a disability resulting from her work injuries.” (Comp., ¶¶ 51-54.) Plaintiff must establish “(1) [she] suffers from a disability; (2) [she] is otherwise qualified to do [her] job; and, (3) [she] was subjected to adverse employment action because of [her] disability.” (Arteaga v. Brink's Inc. (2008) 163 Cal.App.4th 327, 344.)

Plaintiff cannot establish these elements. She admitted she “did not have any disabilities during [her] employment with DEFENDANTS.” (Ahn Decl., Ex. 4, RFA No. 52.) She further admitted that “DEFENDANTS did not discriminate against [her] based on any characteristic that is protected under California law, including but not limited to, the Fair Employment and Housing Act.” (Id., RFA No. 21.)

Plaintiff’s third cause of action alleges “her exercise of her protected rights to request reasonable accommodations, were motivating reasons and/or substantial factors in the decisions to subject Plaintiff to” adverse employment actions (Comp., ¶ 64) and defendants “retaliate[ed] against Plaintiff and terminat[ed] her for attempting to exercise her protected rights” (Comp., ¶ 65). For this cause of action, “a plaintiff must show (1) he or she 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.)

Plaintiff admitted facts that preclude her from establishing this cause of action. She admitted “that DEFENDANTS did not discriminate against [her] on the basis of any activity that is protected under California law, including but not limited to, the Fair Employment and Housing Act.” (Ahn Decl., Ex. 4, RFA No. 22.) She further admitted she has “no basis to claim that [her] termination by DEFENDANTS was retaliatory based on [her] alleged participation in an activity that is protected under California law.” (Id., RFA No. 23.) Finally, she admitted defendants provided her “with a workplace free from retaliation based on any characteristics protected under California law, including but not limited to, the Fair Employment and Housing Act.” (Id., RFA No. 51.)

Plaintiff’s fourth cause of action alleges defendants “breached their duty by failing to take all reasonable steps necessary to prevent discrimination and retaliation from occurring.” (Comp., ¶ 72.) “An employer who knows or should have known of unlawful harassment and retaliation, and fails to take immediate and appropriate corrective action, may be liable for the resulting damages, pursuant to Government Code section 12940, subdivision [(k)]. However, because the statute does not create a stand-alone tort, the employee has no cause of action for a failure to investigate unlawful harassment or retaliation, unless actionable misconduct occurred.” (Thompson v. City of Monrovia (2010) 186 Cal.App.4th 860, 880.)

Plaintiff cannot establish these elements for two reasons. First, as discussed with respect to her other causes of action, she cannot show actionable misconduct occurred. Second, she admitted “that DEFENDANTS took all reasonable steps necessary to prevent discrimination against” her (Ahn Decl., Ex. 4, RFA No. 48) and “took all reasonable steps necessary to prevent retaliation against” her (Id., RFA No. 49).

Plaintiff’s fifth cause of action alleges defendants “failed and refused to accommodate Plaintiff” (Comp., ¶ 80) and thereby breached their duty “to make reasonable accommodation for the known physical disability of an employee” (Comp., ¶ 78). “[T]he employee can’t expect the employer to read his mind and know he secretly wanted a particular accommodation and sue the employer for not providing it. Nor is an employer ordinarily liable for failing to accommodate a disability of which it had no knowledge. [Citations.] An employer also has no duty to accommodate an employee who denies she has a disability or denies a need for accommodation.” (Prilliman v. United Air Lines, Inc. (1997) 53 Cal.App.4th 935, 954.)

Plaintiff’s admissions preclude her from establishing this cause of action. She admitted she did not have any disabilities during her employment (Ahn Decl., Ex. 4, RFA No. 52), she “never requested any accommodations” (id., RFA No. 53), defendants “never denied [her] accommodations” (id., RFA No. 55), and defendants “provided [her] with reasonable accommodations” (id., RFA No. 58).

Plaintiff’s sixth cause of action alleges she “reported her disabilities to Defendants, triggering Defendants’ obligation to engage in the interactive process with Plaintiff, but Defendants failed and refused to do so.” (Comp., ¶ 90.) An employer must “engage in a good faith interactive process with the employee to determine an effective reasonable accommodation if an employee with a known physical disability requests one.” (A.M. v. Albertsons, LLC (2009) 178 Cal.App.4th 455, 463.) “The purpose of the interactive process is to determine what accommodation is required.” (Id. at p. 464.)

Plaintiff cannot establish this cause of action. She admitted she “did not notify DEFENDANTS of any disability” (Ahn Decl., Ex. 4, RFA No. 56) or of “any needed accommodations” (id., RFA No. 57), and “that DEFENDANTS engaged in the interactive process with [her] in a timely” and good faith manner (id., RFA No. 59).

Plaintiff’s seventh cause of action alleges “[d]efendants failed to provide meal [and] rest breaks as required by law.” (Comp., ¶ 98.) Employers are required to provide one uninterrupted 30-minue meal break to any employee who works over five hours in a day (Lab. Code, § 512(a)) and to provide a 10-minute rest period for each four hours worked. (Cal. Code Regs., tit. 8, § 11050, subd. 12.)

Plaintiff cannot establish this cause of action. She admitted she “took at least one uninterrupted 30-minute meal break every time [she] worked more than five hours for DEFENDANTS” (Ahn Decl., Ex. 4, RFA No. 42), “took at least one uninterrupted 10-minute rest break for every four hours [she] worked” (id., RFA No. 43), “never notified” defendants of any missed meal or rest breaks (id., RFA Nos. 44, 46) and “never notified” defendants of any interrupted meal or rest breaks (id., RFA Nos. 45, 47).

Plaintiff’s eighth cause of action alleges defendants failed to pay her overtime wages. (Comp., ¶ 107.) Plaintiff, however, admitted she was “never entitled to overtime compensation while working for DEFENDANTS.” (Ahn Decl., Ex. 4, RFA No. 40.) She therefore cannot establish this cause of action.

Plaintiff’s ninth cause of action alleges defendants “failed to accurately report the gross wages earned and the net wages earned by Plaintiff on her wage statements.” (Comp., ¶ 112.) Plaintiff admitted defendants “furnished accurate itemized wage statements to [her] for any wages owed to [her] as required under California law.” (Ahn Decl., Ex. 4, RFA No. 64.) This admission precludes plaintiff from establishing this cause of action.

Plaintiff’s 10th cause of action alleges she “incurred reasonable and necessary expenses in the course of completing her job duties, which were not reimbursed by Defendants.” (Comp., ¶ 118.) She alleges those expenses include “us[ing] her cell phone for work-related duties,” “purchasing cleaning supplies,” and “the use of her personal vehicle.” (Ibid.)

Plaintiff cannot establish this cause of action. She admitted she “did not incur any out-of-pocket business expenses while working for DEFENDANTS.” (Ahn Decl., Ex. 4, RFA No. 63.) She further admitted she “never purchased any cleaning supplies” (id., RFA No. 27), was “never required to use [her] personal cellphone” (id., RFA No. 28), and “never used [her] personal vehicles on any work-related errands” (id., RFA No. 66).

Plaintiff’s 11th cause of action alleges defendants “failed to compensate Plaintiff for all hours worked.” (Comp. ¶ 124.) She admitted she “never performed any duties for which [she was] not compensated for by DEFENDANTS.” (Ahn Decl., Ex. 4, RFA No. 30.) This admission precludes her from establishing this cause of action.

Plaintiff’s 12th cause of action alleges “upon Plaintiff’s termination Defendants failed to pay Plaintiff the full amount of wages due and owing” her. (Comp. ¶ 130.) She admitted, however, “that DEFENDANTS did not owe [her] any compensation at the time [her] employment ended” (Ahn Decl., Ex. 4, RFA No. 24) and “paid [her] all amounts owed to [her] at the time [her] employment ended” (id., RFA No. 25). Plaintiff therefore cannot establish this cause of action.

Plaintiff’s 13th cause of action alleges defendants engaged in “unfair and unlawful business practices under Business and Professions Code § 17200.” (Comp., ¶ 135.) She further alleges, “Defendants’ violations of California wage and hour laws and illegal practices and payment policies constitute a ‘business practice’ because they were done repeatedly over a significant period of time, and in a systematic manner to the detriment of Plaintiff.” (Id., ¶ 136.)

Plaintiff cannot establish this cause of action because she admitted “that DEFENDANTS did not engage in any illegal practices and payment policies that constituted a ‘business practice.’ ” (Ahn Decl., Ex. 4, RFA No. 37.) This cause of action also relies on her other causes of action, which also fail.

Plaintiff’s 14th cause of action alleges, “Defendants demonstrated a consistent policy of discouraging and ultimately preventing Plaintiff from accessing her employment records and reviewing [her] personnel files.” (Comp., ¶ 141.) She cannot establish this cause of action because she admitted defendants “provided [her] access to [her] personnel files and records” (Ahn Decl., Ex. 4, RFA No. 34), timely provided “all the record [she] requested” (id., RFA No. 35), and “never discouraged [her] from accessing” her records (id., RFA No. 36).

Defendants meet their burden of proving there are no triable issues of material fact and they are entitled to judgment on plaintiff’s complaint as a matter of law. Defendants provided evidence that, by the court’s order deeming matters admitted, plaintiff conclusively admitted facts that are fatal to all 14 causes of action she alleges. Plaintiff did not file an opposition, submit any evidence, or otherwise attempt to dispute defendant’s evidence.

A plaintiff moving for summary adjudication must prove each element of each cause of action; once the plaintiff does so, the burden shifts to the defendant to show a triable issue of at least one material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849; CCP § 437c(p)(1).)

RN proves each element of this cause of action. Breach of contract requires: (1) a contract; (2) plaintiff’s performance or excuse for nonperformance; (3) defendant’s breach; and (4) resulting damages. (Richman v. Hartley (2014) 224 Cal.App.4th 1182, 1186.)

Plaintiff admitted the first three elements. She admitted she “agreed to pay $275 per week for the room [she was] occupying at DEFENDANTS’ premises.” (Ahn Decl., Ex. 4, RFA No. 61.) She admitted she had “been occupying a room at DEFENDANTS’ premises since April 2021.” (Id., RFA No. 60.) She admitted she had “not paid any rent with respect to the room… since April 2021.” (Id., RFA No. 62.)

Finally, the undisputed evidence establishes the amount of RN’s resulting damages. Under the parties’ contract, RN was entitled to $275 each week since April 2021. RN’s chief executive officer states, “RN Hospitality has kept an accounting of the amounts owed by Plaintiff and, as of the date of the filing of this Motion, Plaintiff has not paid any amounts for rent since April 1, 2021.” (Kakkad Decl., ¶ 6.) “As such, as of July 31, 2022, Plaintiff will owe RN Hospitality at least sixty-nine (69) weeks and four days of past due rent, which amounts to $19,132.14.” (Id., ¶ 7.)

RN establishes there are no triable issues of material fact and it is entitled to $19,132.14 in damages on its first cause of action for breach of contract.

RN proves each element of its fifth cause of action. “A common count is not a specific cause of action, however; rather, it is a simplified form of pleading normally used to aver the existence of various forms of monetary indebtedness.” (McBride v. Boughton (2004) 123 Cal.App.4th 379, 394.) A common count may be “used as an alternative way of seeking the same recovery demanded in a specific cause of action” and ca be “based on the same facts.” (McBride v. Boughton (2004) 123 Cal.App.4th 379, 394.)

An open book account is a type of common count. (Professional Collection Consultants v. Lauron (2017) 8 Cal.App.5th 958, 967.) “A ‘book account’ is ‘a detailed statement which constitutes the principal record of one or more transactions between a debtor and a creditor arising out of a contract or some fiduciary relation, and shows the debits and credits in connection therewith, and against whom and in favor of whom entries are made, is entered in the regular course of business as conducted by such creditor or fiduciary, and is kept in a reasonably permanent form and manner.” (Id. at p. 969.)

RN’s fifth cause of action for open book account is an alternative way of seeking the same recovery as its first cause of action for breach of contract. The cross-complaint alleges, “Pursuant to the terms of the Contract,” RN provided Ortiz “with the use and benefits of the Premise” (Cross-Comp., ¶ 33), “kept an account of the amounts paid and owed” (id., ¶ 34), and Ortiz “refuse[d] to pay the sum demanded” (id., ¶ 35).

For the same reasons as RN’s first cause of action, RN has established there are no triable issues of material fact and RN is entitled to judgment as a matter of law on this cause of action. Plaintiff admitted she agreed to pay $275 per week to use the premises (Ahn Decl., Ex. 4, RFA No. 61) but had not paid since April 2021 (id., RFA No. 63). RN kept an accounting of the amounts plaintiff owed (Kakkad Decl., ¶ 6), which totaled $19,132.14 as of July 31, 2022 (id., ¶ 7).

Because this cause of action arises from the same facts as the first cause of action for breach of contract, cross-complainant RN is entitled to a total amount of $19,132.14 in damages. Any greater award would constitute a double recovery.

Cross-complaint RN meets its burden of proving there are no triable issues of material fact and they are entitled to summary adjudication on its first and fifth causes of action. The undisputed evidence establishes each element of those causes of action, including the amount of damages. Plaintiff did not file an opposition, submit any evidence, or otherwise attempt to dispute defendant’s evidence.

Defendants RN Hospitality Inc. and Nitesh P. Kakkad’s motion for summary judgment, or in the alternative summary adjudication, is granted.

The court grants summary judgment for defendants RN Hospitality Inc. and Nitesh P. Kakkad on plaintiff’s complaint.

The court grants summary adjudication for cross-complainant RN Hospitality Inc. on its first and fifth causes of action against cross-defendant Zuryzadey Ortiz in the amount of $19,132.14.