Judge Elaine Lu, Case 21STCV14219 2022-08-31 Tentative Ruling

On April 14, 2021, Plaintiff Maria Sanabria (“Plaintiff”) filed the instant wrongful termination action against Defendant Cargomatic, Inc. (“Defendant”). The complaint asserts fifteen causes of action for: (1) Failure to Grant Medical Leave in Violation of the California Family Rights Act (“CFRA”); (2) Failure to Reinstate in Violation of CFRA; (3) Denial of, Restraint and Interference with Medical Leave in Violation of CFRA; (4) Retaliation in violation of CFRA; (5) Discrimination in Violation of CFRA; (6) Failure to Provide Medical Leave of Absence in Violation of Pregnancy Disability Leave Law (“PDLL”); (7) Failure to Reinstate in Violation of PDLL; (8) Retaliation in Violation of PDLL; (9) Sex and Gender Discrimination in Violation of the Fair Employment and Housing Act (“FEHA”); (10) Disability Discrimination in Violation of FEHA; (11) Failure to provide Reasonable Accommodations in Violation of FEHA; (12) Failure to Engage in a Good Faith Interactive Process in Violation of FEHA; (13) Retaliation in Violation of FEHA; (14) Failure to Prevent Discrimination and Retaliation in Violation of FEHA; and (15) Wrongful Termination in Violation of Public Policy.

On June 16, 2022, Defendant filed the instant motion for summary judgment, or in the alternative summary adjudication of each cause of action as well as Plaintiff’s claim for punitive damages. Defendant also filed a request for judicial notice with its motion. On August 17, 2022, Plaintiff filed an opposition, along with evidentiary objections. On August 25, 2022, Defendant filed their reply, along with an additional request for judicial notice.

On or about April 22, 2019, Plaintiff began her employment with Defendant as a Human Resource Coordinator responsible for general office management, employee support, benefits processing, new hire orientation, and managing company notices and postings. (Complaint ¶ 11.) On or about December 30, 2020, Plaintiff learned she was pregnant and informed Defendant. (Id. ¶ 12.) Before taking leave, Plaintiff received a raise and promotion to Senior Human Resources Director. (Id. ¶ 13.) Plaintiff’s supervisor also asked her to delay her maternity leave for one week so that she could train a new employee to cover her HR duties while on leave. (Id. ¶ 14.)

On or about May 7, 2020, Plaintiff filed medical leave forms with Defendant and informed Defendant that she intended to take baby bonding leave as soon as her maternity leave ended. (Ibid.) Later that month, Plaintiff’s supervisors informed her that she would need to cash out her paid time-off before she could collect disability benefits. As the HR Director, Plaintiff knew that this was not company policy and responded by letting her supervisors know she would not use her PTO while on maternity leave. Plaintiff also noted that no male employees were forced to use their PTO when they took baby bonding leave. (Id. ¶ 15.)

In July 2022, Plaintiff provided doctor’s notes to Defendant verifying her maternity leave had been extended to August. (Id. ¶ 16.) Plaintiff’s maternity leave ended in August, her baby bonding leave began,[1] and Plaintiff’s expected return to work was scheduled on or about October 15, 2020. (Id. ¶ 16.) However, later that month Plaintiff received a phone call from her supervisor informing her that her position had been eliminated, and shortly thereafter received formal notice that she had been terminated. (Id. ¶¶ 17-18.)

Plaintiff alleges that Defendant denied her the full amount of leave that she was entitled to by law, discriminated against her for being female and having a pregnancy related disability, and retaliated against her for asserting her rights.

Defendant’s request that the Court take judicial notice of portions of the California Code of Regulations is granted. (Evid. Code § 451(a).) Defendant’s unopposed request that the Court

take judicial notice of The California Employment Development Department’s publication entitled “Paid Family Leave Benefits and Payments FAQs” is granted. (Evid. Code § 452(h).)

Defendant has submitted a Separate Statement of Material Facts (“DSSMF”). The material facts that are undisputed by Plaintiff and relevant to the Court’s findings are:

Plaintiff was placed by a staffing agency at Cargomatic in December 2018. (DSSMF 29.) Plaintiff handled various tasks when she was assigned to Cargomatic as a temporary employee, including: Entering onboarding employees’ information into the database; conducting orientation; setting up computers for new employees and assisting them with connectivity and technical issues; providing new employees with office supplies and technical equipment; and following up with new employees regarding I-9 forms and benefits enrollments. (DSSMF 30.)

In April 2019, Stephen Jackson—who at the time was the Vice President of Operations—made the decision to hire Plaintiff as an employee of Cargomatic. (DSSMF 31.) Plaintiff understood she was an at-will employee. (DSSMF 32.) After becoming a permanent employee, Plaintiff continued performing the same tasks she performed as a temporary employee. (DSSMF 40.) In March of 2020, Plaintiff received a salary increase. (DSSMF 56.)

On or about December 30, 2019, Plaintiff sent an email to Stephen Jackson to let them know that she was pregnant and was expected to deliver her baby on June 2, 2020. (DSSMF 49.) Prior to starting her leave of absence on May 12, 2020, Plaintiff testified that she had a verbal discussion with Mao wherein she would be permitted to take up to 17 1/3 weeks off for pregnancy disability leave (which could theoretically place her off work through September 10, 2020) followed by 12 weeks under FMLA/CFRA with paid family leave to run concurrently therewith (which would place her off work through December 3, 2020). (DSSMF 75.)

On May 12, 2020—the day she started her pregnancy disability leave—Plaintiff sent an email to Stephen and Mao expressing that she believed she should be allowed to use her paid sick leave and paid time off after she had exhausted her leaves of absence, just as other male employees who took paternity leave in 2020 had been able to do. (DSSMF 81-82.) In short, Plaintiff complained to Mao that she should not be required to take her PTO concurrently with her protected leave under FMLA/CFRA because she claimed the same was not required of male employees who took paternity leave in 2020. (DSSMF 84.) During Plaintiff’s employment, the May 12, 2020 complaint was the only discrimination complaint she made. (DSSMF 85.)

Kaiser Permanente issued doctor’s notes certifying Plaintiff’s pregnancy disability leave until August 6, 2020. (DSSMF 93-94.) Plaintiff understood from a May 26, 2020 letter from Stephan Jackson that her CFRA leave would commence after her pregnancy disability leave had been exhausted. (DSSMF 101.) However, on August 28, 2020, Plaintiff was notified that her position had been eliminated effective that day. (DSSMF 118.) At her deposition, Plaintiff testified that she was aware of other women whose positions had been eliminated after they had taken maternity leave, but also male employees who had taken disability leave. (DSSMF 106.)

Code of Civil Procedure section 437c, subdivision (a) provides that a “party may move for summary judgment in any action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding.” The motion shall be granted if there is no triable issue as to any material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).)

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) CCP § 437c(c) “requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)

As to each claim as framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element or to establish a defense. (CCP § 437c(p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520.) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)

“If the defendant meets this burden, then the burden of production shifts to the plaintiff to establish the existence of a triable issue of material fact. [Citation.]” (Donohue v. AMN Services, LLC (2018) 29 Cal.App.5th 1068, 1077.) “[T]he plaintiff must produce ‘substantial responsive evidence.’ [Citation.]” (Miller v. Fortune Commercial Corp. (2017) 15 Cal.App.5th 214, 221.) However, “the role of the court in summary judgment proceedings is not to weigh the evidence, but to determine whether there exists a triable issue of material fact.” (Habitat Trust for Wildlife, Inc. v. City of Rancho Cucamonga (2009) 175 Cal. App. 4th 1306, 1342.)

Defendant moves for summary judgment, or in the alternative, summary adjudication of each of the fifteen causes of action asserted against it.

First, Third, and Sixth Causes of Action: Failure to Provide Medical Leave in Violation of CFRA and Pregnancy Disability Leave Laws

The California Family Rights Act, in part, reads: “It shall be an unlawful employment practice for any employer…to refuse to grant a request by any employee with more than 12 months of service with the employer…to take up to a total of 12 workweeks in any 12-month period for family care and medical leave.” (Cal. Gov’t. Code § 12945.2(a).) This includes “[l]eave for reason of the birth of a child of the employee.” (Id. § 12945(a)(4)(A).)

To prevail on an interference claim under the CFRA, an employee must establish, among other things, that: (a) she provided sufficient notice of her intent to take leave; and (b) her employer denied her CFRA benefits to which she was entitled. (Faust v. California Portland Cement Co. (2007) 150 Cal.App.4th 864, 879).

Defendant acknowledges that Plaintiff provided doctor’s notes certifying her leave of absence until August 6, 2020. (Reply 4:27-5:1.) Defendant also does not appear to contest that Plaintiff provided notice that she intended to take “baby bonding” leave after her medical leave was over. Instead, Defendant argues that “baby bonding” leave runs concurrently with CFRA leave. (Reply 5:10-11.) Because Plaintiff gave birth on May 30, 2020, Defendant argues, Plaintiff’s maximum 12 weeks of CFRA leave would have ended August 22, 2020 – 12 weeks after delivery. Moreover, Defendant argues that Plaintiff failed to provide medical certification after August 6, 2020, and as a result Plaintiff was not entitled to CFRA leave beyond that date. Since Defendant continued to employ Plaintiff through August 28, 2020, Defendant contends Plaintiff cannot demonstrate that Defendant interfered with her CFRA rights.

Defendant misinterprets Plaintiff’s rights and responsibilities under the statute.[2] California Code of Regulations in relevant part reads:

At the end of the employee's period(s) of pregnancy disability, or at the end of four months of pregnancy disability leave, whichever occurs first, a CFRA-eligible employee may request to take CFRA leave of up to 12 workweeks for reason of the birth of the employee's child, if the child has been born by this date. There is no requirement that either the employee or child have a serious health condition in order for the employee to take CFRA leave.

The California Code of Regulations proceeds to clarify the situation at issue in this case:

The maximum possible combined leave entitlement for both pregnancy disability leave (under FMLA and Government Code section 12945) and CFRA leave for reason of the birth of the child (under this article) is four months and 12 workweeks. This assumes that the employee is disabled by pregnancy, childbirth or a related medical condition for four months and then requests, and is eligible for, a 12-week CFRA leave for reason of the birth of the employee's child.

Plaintiff testified in her deposition that prior to starting her leave of absence on May 12, 2020, she had a verbal discussion with Mao wherein she would be permitted to take up to 17 1/3 weeks off for pregnancy disability leave (which could theoretically place her off work through September 10, 2020) followed by 12 weeks under CFRA.[3] (Plaintiff Depo., 158:7-160:1.) Defendant’s own separate statement of material facts confirms this. (DSSMF 75.) Plaintiff does not dispute this. (PSSMF 75.) Therefore, Plaintiff has established the existence of a triable issue of fact with respect to the first element—whether she provided sufficient notice of her intent to take CFRA leave.

Plaintiff offers an email she sent to HR at Cargomatic on August 3, 2020, indicating that her pregnancy disability leave was medically certified through August 6, 2020. (P000223; P000224.) This evidence establishes a triable issue of fact as to whether Plaintiff’s CFRA leave began on August 6, 2020.[4] The parties do not dispute that on August 28, 2020, Shané Jackson—an employee in Cargomatic’s HR department—sent Plaintiff a notification that her position had been eliminated effective that day. (Plaintiff Depo., 194:20-195:14; DSSMF 118.) Because this is within 12 weeks of August 6, 2020, Plaintiff has established the existence of a triable issue of fact with respect to the second element—whether Defendant denied her CFRA benefits to which she was entitled.

Accordingly, Defendant’s motion for summary adjudication with respect to the first and third causes of action is DENIED.

It is an unlawful employment practice for an employer to refuse to grant pregnancy disability leave to an employee disabled by pregnancy. (1) who has provided the employer with reasonable advance notice of the medical need for the leave, and (2) whose health care provider has advised that the employee is disabled by pregnancy. The employer may require medical certification of the medical advisability of the leave…

As with failure to grant CFRA leave, the parties do not dispute that Plaintiff provided notice. However, unlike with her CFRA leave, Plaintiff offers no evidence suggesting that her pregnancy disability leave extended beyond August 6, 2020. In fact, Plaintiff admits that her pregnancy disability leave ended on August 6, 2020: “Ms. Sanabria’s CFRA leave began following her PDL leave, the leave required by Ms. Sanabria’s medical providers due to her disability by pregnancy and childbirth through August 6, 2020.” (Opposition, 5:28-6:2.) And the parties do not dispute that Defendant employed Plaintiff through August 28, 2020. (PSSMF, 118.) Its therefore undisputed that Defendant employed Plaintiff through the duration of her pregnancy disability leave, and Plaintiff cannot prove that Defendant failed to provide her medical leave in violation of pregnancy disability laws. Defendant is entitled to judgment as a matter of law on this issue.

Accordingly, Defendant’s motion for summary adjudication with respect to the sixth causes of action is GRANTED.

Second and Seventh Causes of Action: Failure to Reinstate in Violation of CFRA and Pregnancy Disability Leave Law

The section of the California Code of Regulations governing right to reinstatement following pregnancy disability leave reads:

Right to Reinstatement to Job if CFRA Leave is Taken Following Pregnancy Disability Leave. At the expiration of pregnancy disability leave, if an employee takes a CFRA leave for reason of the birth of her child, the employee's right to reinstatement to her job is governed by CFRA and not section 11043(c)(1) and (c)(2). Under CFRA, an employer may reinstate an employee either to her same or a comparable position.

Because Plaintiff took CFRA leave after her pregnancy disability leave, the Court need only consider Plaintiff’s cause of action for failure to reinstate in violation of CFRA. The section of the California Code of Regulations governing right to reinstatement following CFRA leave reads: “It is an unlawful employment practice for an employer, after granting a requested CFRA leave, to refuse to reinstate the employee to the same or a comparable position at the end of the leave, unless the refusal is justified by the defenses stated in section 11089(d).” (Cal Code Regs. Tit. 2, § 11089(a)(2).) The defenses, in relevant part, read:

An employee has no greater right to reinstatement or to other benefits and conditions of employment than if the employee had been continuously employed during the CFRA leave period. An employer has the burden of proving, by a preponderance of the evidence, that an employee would not otherwise have been employed on the requested reinstatement date in order to deny reinstatement…this burden shall not be satisfied if the employee has been replaced or the employee's position has been restructured to accommodate the employee's absence.

Here, Defendant presents evidence that Plaintiff would not have been employed by the time she requested reinstatement due to company-wide layoffs. Specifically, in his declaration Stephan Jackson states that COVID-19 caused a 25-30% decrease in Cargomatic’s revenues and that he was forced to review positions that were expected to have a substantially decreased workload as a result. (Stephan Jackson Decl. ¶ 22.) Mr. Jackson proceeds to state that based on his review, he decided the company needed to eliminate twenty-two individuals. (Id. ¶ 23.) Of those twenty-two, eighteen had never taken a leave of absence. (Ibid.)

Plaintiff responds with evidence that she was either replaced or her position was restructured to a accommodate her absence. Specifically, Plaintiff testifies in her deposition that Defendant assigned all her HR job duties to Shané Jackson—the individual who was hired for the Human Resources Generalist position that Plaintiff claims Defendant created to replace hers. (Plaintiff Depo., 122:12-16.) Indeed, Stephan Jackson admits that Shané Jackson absorbed some of Plaintiff’s HR duties (Stephan Jackson Decl., ¶ 15; Stephan Jackson Depo., 28:10-16.) Plaintiff’s assertions are further bolstered by her testimony that Stephan Jackson asked Plaintiff to stay past her scheduled leave to pass everything she knew on to Shané Jackson. (Plaintiff Depo., 148:6-9.) Furthermore, as explained in the section on Plaintiff’s discrimination and retaliation claims, infra, Plaintiff offers evidence that Stephan Jackson’s assertion of company-wide layoffs is merely pretext for discrimination and retaliation on the part of Defendant.

Plaintiff has established the existence of a triable issue of fact as to whether Defendant has a legitimate defense for not reinstating Plaintiff after her CFRA leave. However, pursuant to California Code of Regulations Title 2, § 11043(e), Plaintiff does not have a separate cause of action for failure to reinstate after her pregnancy disability leave.

Accordingly, Defendant’s motion for summary adjudication with respect to the second causes of action is DENIED, and Defendant’s motion for summary adjudication with respect to the seventh cause of action is GRANTED.

Fifth, Ninth, and Tenth Causes of Action: Discrimination in Violation of CFRA and FEHA

To establish a prima facie case for discrimination a plaintiff must establish that (1) the plaintiff was a member of a protected class, (2) the plaintiff was qualified for the position the plaintiff sought or was performing competently in the position the plaintiff held, (3) the plaintiff suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some other circumstance suggests discriminatory motive. (Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 355.)

With discrimination claims, California follows a modified form of the burden shifting analysis of McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 to determine whether there are triable issues of fact for resolution by a jury. At summary judgment, the employer must carry the burden of showing the employee’s action has no merit. (Code Civ. Proc., § 437c, subd. (p)(2).) It may do so with evidence that either (1) indicates “that one or more of plaintiff’s prima facie elements is lacking” or (2) shows some legitimate, nondiscriminatory reason for the action taken against the employee. (Caldwell v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 203.)

If defendant meets its burden, the burden then shifts to the plaintiff to produce substantial evidence that the employer’s showing was untrue or pretextual by “pointing to evidence which nonetheless raises a rational inference that intentional discrimination occurred.” (Guz, supra, 24 Cal.4th at p. 355; Hersant v. California Department of Social Services (1997) 57 Cal.App.4th 997, 1004-1005.) “In short, by applying McDonnell Douglas’s shifting burdens of production in the context of a motion for summary judgment, ‘the judge [will] determine whether the litigants have created an issue of fact to be decided by the jury.’ [Citation.]” (Caldwell, supra, 41 Cal.App.4th at p. 203.)

Plaintiff is alleging discrimination based on her female sex and temporary disability due to her pregnancy. The parties do not dispute that Plaintiff was a member of protected classes. Nor do they dispute that she was terminated in August of 2020. However, the parties dispute whether Plaintiff was qualified to assume the Human Resources Generalist position (“HRG Position”) Defendant created when Plaintiff went on leave—the position Plaintiff claims replaced the one she held before taking leave—and whether Plaintiff’s termination was a result of her being female and having been pregnant. Defendant argues the HRG Position it created involves significantly different responsibilities than the position held by Plaintiff, and that Plaintiff was laid off for reasons independent from her sex or pregnancy-related disability—namely, COVID-19. Plaintiff rebuts this by pointing to evidence of her recent pay-raise, the fact that she helped train the individual who was hired in the HRG Position that she claims ultimately replaced hers, and the temporal proximity of her pregnancy leave and termination. Plaintiff asserts that all of this evidence demonstrates that Defendant’s justification of company-wide layoffs due to COVID-19 is mere pretext for discrimination.

Defendant satisfies its burden of showing a legitimate reason for Plaintiff’s termination

by offering evidence of indiscriminate layoffs. Specifically, Defendant offers a declaration from its Chief Administrations Officer which states:

As a result of the COVID-19 pandemic, Cargomatic experienced a 25-30% decrease in revenues in 2020. Because Cargomatic anticipated early in 2020 that its financial outlook for the remainder of the year would be grim, I reviewed positions which had or were expected to have a substantial decrease in workload to see where Cargomatic could effectuate some cost savings by eliminating positions. This was a necessary step to stemming the financial losses resulting from the lack of revenue.

Mr. Jackson proceeds to state: “Based on my review of positions at Cargomatic, I decided to eliminate twenty-two (22) positions in 2020, including Plaintiff’s position. Of these, there were eight (8) men and fourteen (14) women. Eighteen (18) of the twenty-two (22) individuals had never taken a leave of absence.” (Id. ¶ 23.)

With respect to not considering Plaintiff for the HRG Position that Plaintiff claims was created in order to justify eliminating the position she held, Defendant meets its burden by offering testimony from the same individual. Mr. Jackson declares: “In early May 2020, I hired Shané Jackson ("Ms. Jackson") for the Human Resources Generalist position because Plaintiff never applied for the position, and Ms. Jackson's background and work experience were superior to Plaintiffs with respect to experience in human resources.” (Stephan Jackson Dec. ¶ 14.) Mr. Jackson testified similarly in his deposition. (Stephan Jackson Depo., 101:1-14.) Mr. Jackson also testified that the effects of COVID-19 made most of Plaintiff’s duties and responsibilities no longer necessary, and other Cargomatic employees absorbed the few remaining duties and responsibilities that were still necessary. (Stephan Jackson Dec. ¶ 18.) Ms. Jackson went on to assume duties and responsibilities separate from those performed by Plaintiff. (Stephan Jackson Depo., 28:10-16.)

The burden shifts to Plaintiff to show this to be untrue or merely pretext for discrimination. First, Plaintiff points out that Ms. Jackson was hired for the HGR Position three months after the onset of the COVID-19 pandemic. (Plaintiff Depo. 122:12-16.) Second, Plaintiff points out that before Plaintiff began her leave, Defendant granted her a pay raise and assigned her additional responsibilities. (Stephan Jackson Decl. ¶¶ 10-11.) Plaintiff also notes that she was asked to help train Ms. Jackson, which implies that Plaintiff’s duties and responsibilities were still necessary. (Plaintiff Depo. 147:23-148:15.) Finally, Plaintiff argues the timing of her termination—only months after she began pregnancy leave to be specific—makes discrimination even more suspicious.[5]

The Court may not weigh the credibility of evidence at summary judgment. It only looks for triable issues of material fact, and with respect to the fifth, ninth, and tenth causes of action, Plaintiff has met her burden.

Accordingly, Defendant’s motion for summary adjudication with respect to the fifth, ninth, and tenth causes of action is DENIED.

Fourth, Eighth, and Thirteenth Causes of Action: Retaliation in Violation of CFRA, Pregnancy Disability Leave Law, and FEHA

To prevail on a claim for retaliation under CFRA, a plaintiff must establish: (1) Defendant was an employer covered by CFRA; (2) plaintiff was eligible to take CFRA leave; (3) plaintiff exercised a right to take leave for a qualifying CFRA purpose; and (4) plaintiff suffered an adverse employment action as a result. (Dudley v. Department of Transp. (2001) 90 Cal.App.4th 255, 261) Likewise, to prevail on a claim for retaliation under FEHA in general, a plaintiff must establish: (1) Plaintiff engaged in a protected activity as an employee; (2) employer subjected Plaintiff to an adverse employment action; and (3) a causal link between the protected activity and the employer's action. (Thompson v. City Of Monrovia (2010) 186 Cal.App.4th 860, 874.) The analysis under CFRA, pregnancy disability leave, and FEHA is similar: Elements (1-3) for retaliation under CFRA resemble the requirement of an employee engaging in a protected activity, and element (4) resembles the requirements of an adverse employment action and causal link.

Like discrimination, burden shifting applies in retaliation cases. (Faust v. California

Portland Cement Co. (2007) 150 Cal. App. 4th. 864, 885.) “If any employee presents a prima facie case of retaliation, the court then employs the three-stage McDonnell Douglas burden-shifting analysis to the employee’s claim. [Citation.]” (Moore v. Regents of University of California (2016) 248 Cal.App.4th 216, 244.) Thus, the prior discussion regarding Defendant’s legitimate reasons for terminating Plaintiff’s employment applies here. The issue with the retaliation causes of action is whether Plaintiff’s request for CFRA and pregnancy disability leave was the reason for her termination.

Defendant provides the same explanation for terminating Plaintiff as it did in response to Plaintiff’s claims of discrimination. Namely, that COVID-19 caused a reduction in revenue and a need for company-wide layoffs. (Stephan Jackson Decl. ¶¶ 22-23.) Defendant meets its burden.

Plaintiff responds by testifying in her deposition that Mr. Jackson ignored her requests to be considered for the newly created HRG Position. (Plaintiff Depo. 146:3-19.) Nonetheless, Plaintiff was asked to delay her leave in order to train Shané Jackson for the HRG Position. (Plaintiff Depo. 147:23-148:15.) And Defendant subsequently had Shané Jackson inform Plaintiff that her position was terminated. (P000019.) This suggests that a retaliatory intent may have been at play.

Whether this is evidence outweighs the explanation offered by Defendant is not determined here. At summary judgment the Court only looks for triable issues of material fact, and with respect to the fifth, ninth, and tenth causes of action, Plaintiff has met her burden.

Accordingly, Defendant’s motion for summary adjudication with respect to the fourth, eighth, and thirteenth causes of action is DENIED.

Eleventh and Twelfth Causes of Action: Failure to Provide Reasonable Accommodations and Failure to Engage in a Good Faith Process in Violation of FEHA

Under FEHA, an employer’s ‘fail[ure] to make reasonable accommodation for the known physical or mental disability of an applicant or employee’ is an unlawful employment practice. (Cal. Gov’t Code § 12940(m).) “The elements of a failure to accommodate claim are (1) the plaintiff has a disability under the FEHA, (2) the plaintiff is qualified to perform the essential functions of the position, and (3) the employer failed to reasonably accommodate the plaintiff's disability.” (Swanson v. Morongo Unified School Dist. (2014) 232 Cal.App.4th 954, 969; internal quotation omitted.) “Reasonable accommodations” include “providing paid or unpaid leave for treatment and recovery.” (Cal. Code Regs., tit. 2, §§ 11065(p)(2)(A)(O); emphasis added.)

The only argument Plaintiff makes as to the third element is that Defendant terminated her for taking CFRA leave. However, as was established with the sixth cause of action for failure to provide medical leave in violation of pregnancy disability laws, supra, Defendant did in fact grant Plaintiff her entire pregnancy disability leave. “Reasonable accommodations” do not include leave for baby bonding—they only include leave for treatment and recovery. Plaintiff has offered no evidence that she was still disabled when Defendant terminated her. Because Plaintiff’s temporary disability from pregnancy ended on August 6, 2020 (See P000224), she no longer required reasonable accommodations for treatment and recovery. Therefore, Plaintiff has not established all the necessary elements, and Defendant is entitled to judgment as a matter of law on this cause of action.

FEHA also makes it unlawful “[f]or an employer . . . to fail to engage in a timely, good faith, interactive process with the employee . . . to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee . . . with a known physical or mental disability or known medical condition.” (Cal. Gov’t Code § 12940(n).) In order to establish a claim that an employer failed to engage in the interactive process, a plaintiff must show that (1) the plaintiff requested the employer make a reasonable accommodation; (2) the plaintiff was willing to participate in an interactive process to determine whether a reasonable accommodation could be made; and (3) the employer failed to participate in a timely and good-faith interactive process with the plaintiff to determine whether a reasonable accommodation could be made. CACI No. 2546.

There is no cause of action here for the same reason—Plaintiff has failed to establish that Defendant did not provide a “reasonable accommodation” within the definition provided by California Code of Regulations §11065(p)(2)(A)(O).

Accordingly, Defendant’s motion for summary adjudication with respect to the eleventh and twelfth causes of action is GRANTED.

Fourteenth Cause of Action: Failure to Prevent Discrimination and Retaliation in Violation of FEHA

Government Code Section 12940 creates a separate cause of action for failure to prevent discrimination and failure "to take all reasonable steps necessary to prevent discrimination (Gov. Code, § 12940(k).) This also includes an employer’s duty to prevent retaliation. (Taylor v. City of Los Angeles Dept. of Water & Power (2006) 144 CalApp.4th 1216.)

This cause of action rises and falls with Plaintiff’s statutory claims for discrimination and retaliation. The Court has denied summary adjudication with respect to those causes of action.

Accordingly, Defendant’s motion for summary adjudication with respect to the fourteenth cause of action is DENIED.

An employee has a common law right to sue for wrongful termination “when he or she is discharged for performing an act that public policy would encourage, or for refusing to do something that public policy would condemn.” (Gantt v. Sentry Insurance (1992) 1 Cal.4th 1083, 1090 (overruled on other grounds).) “‘The elements of a claim for wrongful discharge in violation of public policy are (1) an employer-employee relationship, (2) the employer terminated the plaintiff’s employment, (3) the termination was substantially motivated by a violation of public policy, and (4) the discharge caused the plaintiff harm.’” (Nosal-Tabor v. Sharp Chula Vista Medical Center (2015) 239 Cal.App.4th 1224, 1234-35 (quoting Yau v. Allen (2014) 229 Cal.App.4th 144, 154).) “A discharge is actionable as against public policy if it violates a policy that is: ‘(1) delineated in either constitutional or statutory provisions; (2) ‘public’ in the sense that it ‘inures to the benefit of the public’ rather than serving merely the interests of the individual; (3) well established at the time of discharge; and (4) ‘substantial’ and ‘fundamental.’’” (Id. at 1238-39 [quoting Carter v. Escondido Union High School District (2007) 148 Cal.App.4th 922, 929].)

Here, the parties do not dispute the existence of an employer-employee relationship or that Defendant terminated Plaintiff’s employment. Nor does Defendant challenge that the termination caused harm to Plaintiff. The issue is whether Plaintiff’s termination was substantially motivated by a violation of public policy. Because Defendant is unable to prove that as a matter of law it did not discriminate or retaliate against Plaintiff when it terminated her, Defendant is also unable to prove that as a matter of law Plaintiff’s termination was not substantially motivated by a violation of public policy.

Accordingly, Defendant’s motion for summary adjudication with respect to the fifteenth cause of action is DENIED.

“[Civil c]ode section 3294 provides that punitive damages may be awarded in an action for breach of an obligation not arising from contract, if the plaintiff proves by clear and convincing evidence that the Defendants has been guilty of oppression, fraud, or malice.” (Scott v. Phoenix Schools, Inc. (2009) 175 Cal.App.4th 702, 715.) “The clear and convincing standard ‘requires a finding of high probability . . . . ‘‘so clear as to leave no substantial doubt’; ‘sufficiently strong to command the unhesitating assent of every reasonable mind.’ [Citation.]” (Ibid.) “Summary judgment or summary adjudication ‘‘‘on the issue of punitive damages is proper’ only ‘when no reasonable jury could find the plaintiff’s evidence to be clear and convincing proof of malice, fraud or oppression.’’’ (Pacific Gas and Electric Company v. Superior Court (2018) 24 Cal.App.5th 1150, 1159.) “Where the plaintiff’s ultimate burden of proof will be by “clear and convincing” evidence, the higher standard of proof must be taken into account in ruling on a summary judgment motion.” (Basich v. Allstate Ins. Co. (2001) 87 Cal.App.4th 1112, 1118.)

“Malice” means conduct (1) which is intended by the defendant to cause injury to the plaintiff or (2) despicable conduct carried on by the defendant with a willful and conscious disregard of the rights or safety of others. (Civ. Code § 3294 subd. (c)(1).) Moreover, “‘Oppression’ means despicable conduct that subject a person to cruel and unjust hardship in conscious disregard of that person’s rights.” (Civ. Code § 3294 subd. (c)(2).)

Defendant argues in its memorandum that “there is no evidence to support any entitlement to punitive damages.” (Def. Memorandum, p. 25.)

A defendant moving for summary judgment must show either that one or more elements of the cause of action cannot be established, or that there is a complete defense to that cause of action. (CCP § 437c, subd. (p)(2).) This means that if the plaintiff bears the burden of preponderance of the evidence at trial, then the defendant in a summary judgment motion “must present evidence that would require a reasonable trier of fact not to find any underlying material fact more likely than not—otherwise, [the defendant] would not be entitled to judgment as a matter of law, but would have to present his evidence to a trier of fact.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 851, [emphasis original].) To meet this burden, a defendant must show not only “that the plaintiff does not possess needed evidence” but also that “the plaintiff cannot reasonably obtain needed evidence.” (Aguilar, 25 Cal.4th at 854, emphasis original.) It is insufficient for the defendant to merely point out the absence of evidence. (Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891.) The defendant “must also produce evidence that the plaintiff cannot reasonably obtain evidence to support his or her claim.” (Ibid.) The supporting evidence can be in the form of affidavits, declarations, admissions, depositions, answers to interrogatories, and matters of which judicial notice may be taken. (Aguilar, 25 Cal.4th at 855.)

Here, Defendant has failed to identify in its separate statement any evidence that Plaintiffs cannot prove her entitlement to punitive damages. (City of Pasadena v. Superior Court (2014) 228 Cal.App.4th 1228, 1238, Fn. 4, [“ ‘[t]his is the Golden Rule of Summary Adjudication: if it is not set forth in the separate statement, it does not exist.’ ”].) Similarly, the memorandum fails to cite any evidence demonstrating that Plaintiff cannot establish her entitlement to punitive damages. (See Cal. Rules of Court, Rule 3.1113(b).)[1] Finally, by citing to the same 127 material facts for each cause of action, Defendant concedes that every single one of the 127 facts is material:

“[I]t ignores the advice from the leading practice treatise: “PRACTICE POINTER: [¶] …[¶] Include only those facts which are truly material to the claims or defenses involved because the separate statement effectively concedes the materiality of whatever facts are included. Thus, if a triable issue is raised as to any of the facts in your separate statement, the motion must be denied!” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2009) § 10:95.1, p. 10-35.)”

(Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 252.) Accordingly, the Court may not grant summary adjudication of punitive damages as many of the 127 material facts that Defendant has cited for this issue are in dispute.

Accordingly, Defendant’s motion for summary adjudication with respect to Plaintiff’s claim for punitive damages is DENIED.

Based on the foregoing, Defendant Cargomatic Inc.’s motion for summary judgment is DENIED. Defendant Cargomatic Inc.’s motion for summary adjudication is GRANTED as to the sixth, seventh, eleventh, and twelfth causes of action and otherwise DENIED.

[1] Plaintiff’s complaint appears to use the term “maternity leave” to refer to pregnancy disability leave, and “baby bonding” to refer to leave allowed under the California Family Rights Act.

[2] An employer may require medical certification if CFRA leave is being taken due to a serious health condition of an employee or an employee’s family member. (Cal. Code Regs. tit. 2 § 11091(b).) However, if an employee takes CFRA leave due to the birth of the employee’s child, there is no requirement that the employee or the child suffer from a serious health condition in the first place. (Cal. Code Regs. tit. 2 § 11093(c).)

[3] Verbal notice is sufficient. (Cal. Code Regs. Tit. 2 § 11091(a)(1).)

[4] Defendant offers Cal. Code Regs. Tit. 2 § 11093(c) for the proposition that CFRA leave necessarily starts at the date of childbirth, and thus Plaintiff’s CFRA leave started May 30, 2020, and ended August 22, 2020. As shown, infra, Cal. Code Regs. Tit. 2 § 11093(c) does not say this. Defendant offers no other authority—and the Court can find no other authority—mandating that pregnancy disability leave necessarily ends, and CFRA leave necessarily begins on the date of childbirth.

[5] Defendant cites to cases holding that temporal proximity alone is insufficient to raise a triable issue as to pretext once the employer has offered evidence of a legitimate, nondiscriminatory reason for the termination. (Arteaga v. Brink's, Inc. (2008) 163 Cal.App.4th 327, 353.) The employer in Artega, however, had already raised legitimate performance issues with the plaintiff before firing him. Notably, the employer in that case had strong reason to believe that Artega was stealing money from the ATMs he was servicing. In this case, Plaintiff is not relying on temporal proximity alone. Plaintiff received a pay raise and was asked to train an incoming employee before she was fired—evincing pretext beyond mere temporal proximity.

Superior Court of California

County of Los Angeles

Department 26