Judge: Elaine Lu, Case: 22STCV21694, Date: 2023-08-10 Tentative Ruling

Case Number: 22STCV21694    Hearing Date: January 3, 2024    Dept: 26

Superior Court of California

County of Los Angeles

Department 26

Procedural Background

            On July 5, 2023, Plaintiff Teresa Trutanic (“Plaintiff”) filed the instant action against Defendant Shahinaz Soliman Clinic Corp. (“Defendant”).  The complaint asserts ten causes of action for (1) Failure to Pay Minimum Wage, (2) Failure to Timely Pay Wages, (3) Meal Period Violations, (4) Rest Period Violation, (5) Waiting Time Penalties, (6) Failure to Provide Accurate Itemized Wage Statements, (7) Discrimination in Violation of the FEHA, (8) Retaliation in Violation of the FEHA, (9) Failure to Prevent in Violation of the FEHA, and (10) Wrongful Termination in Violation of the FEHA.

            On August 25, 2023, Plaintiff filed the instant motion for summary adjudication.  On October 27, 2023, Defendant filed an opposition.  On November 8, 2023, Plaintiff filed a reply.  On November 14, 2023, Defendant filed objections to the evidence submitted with the reply.  On November 28, 2023, the Court continued the instant motion to January 3, 2024.

Allegations of the Operative Complaint

The Complaint alleges that:

            “On October 4, 2019, Defendant hired Plaintiff as an ultrasound technician.  (Complaint ¶ 6.)  “Throughout her employment, Plaintiff performed her duties in a diligent, efficient, and satisfactory manner.”  (Id. ¶ 7.) 

            “Throughout the entire duration of Plaintiff’s employment, Defendant willfully misclassified Plaintiff as an independent contractor as Plaintiff was not free from the control and direction of Defendant in connection with the performance of her work; Plaintiff did not perform work that was outside of Defendant’s usual business; and Plaintiff was not engaged in an independently established trade, occupation, or business.”  (Id. ¶ 8.) 

            “While Plaintiff was regularly required to remain at Defendant’s office for a minimum of eight hours/day, Plaintiff was only compensated by the number of exams she completed. Therefore, there would be days when Plaintiff was not paid minimum wage.”  (Id. ¶ 9.)  “Throughout her employment, Plaintiff also did not receive regular rest and meal periods. When Defendant was busy, Plaintiff would be required to work during her meal and rest periods without compensation in violation of California law.”  (Id. ¶ 10.)

            “Defendant knew or should have known that Plaintiff was entitled to receive all rest periods or payment of one (1) additional hour of pay at Plaintiff’s regular rate of pay when a rest period was missed, and that she did not receive all rest periods or payment of one (1) additional hour of pay at Plaintiff’s regular rate of pay when a rest period was missed.”  (Id. ¶ 11.)  In addition, “Defendant knew or should have known that Plaintiff was entitled to receive all meal periods or payment of one (1) additional hour of pay at Plaintiff’s regular rate of pay when a meal period was missed, and that she did not receive all meal periods or payment of one (1) additional hour of pay at Plaintiff’s regular rate of pay when a rest period was missed.”  (Id. ¶ 12.)  “Defendant further failed to provide Plaintiff with accurate itemized wage statements, in violation of California law. The deficiencies in Plaintiff’s wage statements include, among other things, the failure to state all hours worked, failure to accurately state all gross wages earned, and failure to state all net wages earned.”  (Id. ¶ 13.)

            “On December 21, 2021, Plaintiff informed Defendant that she would need to start her maternity leave as she had gone into labor and expected to be able to return in March 2022.”  (Id. ¶ 14.)  “Plaintiff regularly communicated with Defendant throughout her maternity leave.”  (Id. ¶ 15.)  “On March 18, 2022, Plaintiff contacted Defendant and informed it that she was planning to return to work in April 2022.”  (Id. ¶ 16.) 

            “In response, after being informed that Defendant was very busy, Plaintiff was told she was not needed and would be informed when they needed more help. She was also reminded that she was only an independent contractor.”  (Id. ¶ 17.)  “Plaintiff is informed and believes and thereon alleges that the reason for her termination was due to her pregnancy and/or in retaliation for requesting accommodations.”  (Id. ¶ 18.)  “Defendant thereafter failed to pay Plaintiff all owed wages, including meal and rest break premiums, at the time of her termination.”  (Id. ¶ 19.) 

Evidentiary Objections

Defendant objects to the evidence submitted with the reply. 

The moving party generally may not rely on additional evidence filed with its reply papers.  (San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A. (2002) 102 Cal.App.4th 308, 316.)  Evidence filed for the first time in a reply may violate the opposing party’s due process rights if considered by the Court.  (Ibid.)  Thus, evidence and exhibits presented in support of a reply are not generally allowed. (See Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 249.)  As such, the Court will not consider the evidence submitted with the reply.

Legal Standard

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.) Code of Civil Procedure Section 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.)

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facia showing that there are no triable issues of material fact.”  (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal. App. 4th 1510, 1519.)  A plaintiff or cross-complainant moving for summary judgment or summary adjudication “has met his or her burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on the cause of action. Once the plaintiff or cross-complainant has met that burden, the burden shifts to the defendant or cross-defendant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.”  (CCP § 437(p)(1).)

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.)

To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

Discussion 

Improper Subject for Summary Adjudication

            Code of Civil Procedure section 437c(f)(1) provides that “[a] party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.”  (CCP § 437c(f)(1) [italics added].) 

            Here, Plaintiff seeks summary adjudication of the sixty ninth affirmative defense of Defendant’s amended answer, which asserts that Plaintiff was an independent contractor.  However, whether Plaintiff is an independent contractor is not an affirmative defense. 

            “An affirmative defense is an allegation of new matter in the answer that is not responsive to an essential allegation in the complaint. In other words, an affirmative defense is an allegation relied on by the defendant that is not put in issue by the plaintiff's complaint.”  (The Bank of New York Mellon v. Preciado (2013) 224 Cal.App.4th Supp. 1, 8; accord Protect Our Benefits v. City and County of San Francisco (2015) 235 Cal.App.4th 619, 638.)  Thus, “‘[w]here the answer alleges facts showing that some essential allegation of the complaint is not true, those facts are not “new matter,” but only a traverse.’ [Citation.]”  (Protect Our Benefits, supra, 235 Cal.App.4th at p.638.)

            Here, each of the causes of action of the complaint requires that Plaintiff prove, as an element, that Plaintiff was an employee of Defendant.  In support of this element, the complaint alleges that “[t]hroughout the entire duration of Plaintiff’s employment, Defendant willfully misclassified Plaintiff as an independent contractor …” thereby directly putting at issue whether Plaintiff was an independent contractor.  (Complaint ¶ 8.)  Thus, Defendant’s assertion in the answer that Plaintiff was an independent contractor is merely a denial of an essential element of each cause of action of the complaint, i.e., the allegation that Plaintiff was an employee and not an independent contractor.  Defendant’s assertion that Plaintiff was an independent contractor is thus not a new matter.  Accordingly, Defendant’s purported sixty ninth affirmative defense is not truly an affirmative defense but is instead a mere denial of a factual allegation of the complaint.  Whether Plaintiff is an independent contractor is not a proper subject for summary adjudication because summary adjudication of this issue would not “completely dispose[] of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.”  (CCP § 437c(f)(1).) 

The Court cannot grant the instant motion as it is beyond the permissible scope for a proper motion for summary adjudication. 

CONCLUSION AND ORDER

Based on the foregoing, Plaintiff Teresa Trutanic’s motion for summary adjudication is DENIED.

Moving Party is to give notice and file proof of service of such.

DATED: January ___, 2024                                                   ___________________________

                                                                                          Elaine Lu

                                                                                          Judge of the Superior Court