Judge Gail Killefer, Case Number: 20STCV01683, Date: 2024-03-14 Tentative Ruling

Judge: Gail Killefer, Case: 20STCV01683, Date: 2024-03-14 Tentative Ruling

Case Number: 20STCV01683 Hearing Date: March 14, 2024 Dept: 37

HEARING DATE: Monday, March 11, 2024

CASE NUMBER: 20STCV01683

CASE NAME: Nichole Martinez v. Southern California University of Health Sciences, et al.

MOVING PARTY: Defendants Southern California University of Health Sciences, Robb Russell, and Melissa Nagare.

OPPOSING PARTY: Plaintiff Nicole Martinez

TRIAL DATE: March 26, 2024

PROOF OF SERVICE: OK

PROCEEDING: Motion for Summary Judgment or, in the alternative, Summary Adjudication

OPPOSITION: 7 February 2024

REPLY: 16 February 2024

TENTATIVE: Defendants’ motion for summary judgment or, in the alternative, summary adjudication is denied. Defendants to give notice.

Background

This action arises in connection with the employment of Nichole Martinez (“Plaintiff”) by Defendant Southern California University of Health Sciences (“SCUHS”) as its Director of

Health Systems Business Development. Plaintiff alleges that she began working for SCUHS in

this role on September 24, 2015, pursuant to a year-to-year employment contract. In 2017, SCUHS hired Defendant the Chiropractic Business Academy (“CBA”) to provide

consulting services. According to Plaintiff, her job at SCUHS was put in jeopardy by her refusal

to participate in “Scientology-based marketing.” Plaintiff allegedly complained to Defendants Robb Russell (“Russell”) and Melissa Nagare (“Nagare”) weekly regarding CBA’s practices but,

in response, Defendants started treating Plaintiff rudely and disciplining her without cause,

resulting in her eventual termination.

Plaintiff’s Complaint, filed on January 14, 2020, alleges eleven causes of action: (1)

religion/religious creed discrimination in violation of the Fair Housing Employment Act

(“FEHA”) against CBA, SCUHS, (2) harassment based on religion/religious creed, (3) retaliation

in violation of the FEHA against CBA, SCUHS, (4) wrongful termination in violation of public

policy against CBA, SCUHS, (5) failure to take reasonable steps to prevent harassment and

discrimination in the workplace against CBA, SCUHS, (6) retaliation in violation of California

Labor Code §1102.5 against CBA and SCUHS, (7) employer’s breach of the implied covenant of

good faith and fair dealing against SCUHS, (8) unfair business practices (violation of Business

and Professions Code § 17200), (9) intentional infliction of emotional distress, (10) negligent

hiring and retention against SCUHS, and (11) defamation.

On March 2, 2021, Plaintiff filed a Request for Dismissal as to CBA.

On December 8, 2023, Defendants SCUHS, Russell, and Nagare (collectively “Defendants”) moved for summary judgment or, in the alternative, summary adjudication as to all causes of action alleged in the Complaint. Plaintiff opposed the motion. On February 28, 2024, the court continued the hearing to allow Defendants to submit a copy of Exhibit 34 and correct the index of exhibits by March 1, 2024.

Defendants complied by submitting a corrected index of exhibits and lodging with the court Exhibits 32 and 34. Defendants also submitted updated objections to Plaintiff’s evidence. Plaintiff responded by submitting updated objections to the Defendants’ evidence. The matter is once again before the court.

I. Legal Standard

The purpose of a motion for summary judgment or summary adjudication “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.”¿ (Aguilar v. Atl. Richfield Co. (2001) 25 Cal. 4th 826, 843.) “Code of Civil Procedure section 437c, subdivision (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.) Summary adjudication may be granted as to one or more causes of action within an action, or one or more claims for damages. (CCP § 437c(f).)¿¿¿¿¿¿¿¿¿

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A defendant moving for summary judgment bears two burdens: (1) the burden of production – presenting admissible evidence, through material facts, sufficient to satisfy a directed verdict standard; and (2) the burden of persuasion – the material facts presented must persuade the court that the plaintiff cannot establish one or more elements of a cause of action, or a complete defense vitiates the cause of action. (CCP § 437c(p)(2);¿Aguilar,¿supra, 25 Cal.4th at p. 850-851.) A defendant may satisfy this burden by showing that the claim “cannot be established” because of the lack of evidence on some essential element of the claim.¿¿(Union Bank v. Superior Court (1995) 31 Cal.App.4th 574, 590.)¿¿Once the defendant meets this burden, the burden shifts to the plaintiff to show that a “triable issue of one or more material facts exists as to that cause of action or defense thereto.”¿(Ibid.)¿¿¿¿¿¿¿¿

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“On ruling on a motion for summary judgment, the court is to ‘liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.’” (Cheal v. El Camino Hospital¿(2014) 223 Cal.App.4th 736, 760.) On a summary judgment motion, the court must therefore consider what inferences favoring the opposing party a factfinder could reasonably draw from the evidence. While viewing the evidence in this manner, the court must bear in mind that its primary function is to identify issues rather than to determine issues. [Citation.]” (Binder v. Aetna Life Ins. Co.¿(1999) 75 Cal.App.4th¿832, 839.)¿

II. Evidentiary Objections

Plaintiff submits evidentiary objections to certain facts stated in Defendants in the Separate Statement.

Objection No. 1, 6 and 7 are sustained.

Objections Nos. 2, 3, and 4 are overruled.

The court declines to rule on Objection No. 5. Objection No. 5 objects to the fact stated in the separate statement, Undisputed Material Fact 12, rather than a particular piece of evidence. Plaintiff’s updated proposed order specifies that Plaintiff is objection to four pieces of evidence in Objection No. 5: the Declaration of Melissa Nagare, Paragraph 19, and the three portions of the Deposition of Melissa Nagare at 358:9-13; 427:9-433:1, 440:15-25. Accordingly, the objection is not in proper form. (CRC, rule 3.1354 subd. (b), (c).) The court has no obligation to rule on objections not presented in proper form. (Vineyard Springs Estates v. Superior Court (2004) 120 Cal.App.4th 633, 642; Demps v. San Francisco Housing Authority (2007) 149 Cal. App. 4th 564, 578.)

Defendants’ objections to the Declaration of Rose Zilifyan:

Specifically, Defendants object to the following exhibits introduced in the Declaration of Rose Zilifyan:

· Exhibit 5 - SCU 000064-66 – Business Academy Contract. The court notes that Plaintiff’s Exhibit 5 is Defense Exhibit 14.

· Exhibit 6 - SCU 000052 – May 10, 2018, Counseling Record. The court notes that Plaintiff’s Exhibit 6 is Defense Exhibit 19.

· Exhibit 7 - SCU000023-28 – Director of Health System Business Development Job Description. The court notes that Plaintiff’s Exhibit 7 is Defense Exhibit 1.

· Exhibit 8 - CU 000055-56 July 9, 2018, Counseling Record.

· Exhibit 9 – Martinez 00048-57 – Rebuttal for Counseling Record.

· Exhibit 10 – SCU00057 – July 16, 2018, Counseling Record. The court notes that Plaintiff’s Exhibit 10 is Defense Exhibit 25.

· Exhibit 11- SCU 000058-59 – July 27, 2018, Counseling Record. The court notes that Plaintiff’s Exhibit 11 is Defense Exhibit 35.

· Exhibit 12 – Martinez 00127- Cover of “Breaking the Code,” Based On the Works Of L. Ron Hubbard.

· Exhibit 13 – Martinez 00026-31 – Emails from Melissa Nagare Regarding Business Academy Training Sessions. The court notes that Plaintiff’s Exhibit 13 is part of Defense Exhibit 15.

· Exhibit 14- Martinez 00130-133 – SBAR Report. The court notes that Plaintiff’s Exhibit 14 is Defense Exhibit 26.

· Exhibit 15- SCU000013 – September 19, 2018, HR Complaint. The court notes that Plaintiff’s Exhibit 15 is Defense Exhibit 37.

· Exhibit 16- SCU 000063 – Email from Robb Russell to Nichole Martinez on September 12, 2018.

· Exhibit 17 – SCU00011 – Payroll Change Notice.

· Exhibit 18- Martinez 00071 – SCU Health System and Marketing Coordinator Job Description

· Exhibit 19- Martinez 00100 – Termination of Employment Document.

· Exhibit 20- SCU000011-12 – Payroll Change Notice and Record of Termination.

Defendants object to the above exhibits on the basis that the Declaration of Rosie Zilifyan does not sufficiently lay the foundation for any of the exhibits listed above.

Ms. Zilifyan’s declaration attests as follows:

I am an attorney at law, duly authorized to practice law before all of the courts of the State of California. I am a Trial Attorney for Shegerian & Associates, the attorney of record for plaintiff, Nichole Martinez, in this case. I am familiar with the files, pleadings, and facts in this case, and I could and would competently testify to the following facts on the basis of my own personal knowledge.

(Zilifyan Decl. ¶ 1.) Ms. Zilifyan than goes on to assert that all the exhibits relied on by Plaintiff are a true and correct copy of the exhibit. While affidavits and declarations may be filed in support of a motion for summary judgment, such affidavits or declarations “shall be made by a person on personal knowledge, shall set forth admissible evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated in the affidavits or declarations.” (CCP, § 437c(d) [italics added].)

The counteraffidavit concludes with the allegation that the ‘facts stated herein are within the personal knowledge of the affiant, and the affiant, if sworn as a witness, can testify competently thereto.’ Where the facts stated do not themselves show it, such bare statement of the affiant has no redeeming value and should be ignored.

(Snider v. Snider (1962) 200 Cal.App.2d 741, 754, see also Gamboa v. Northeast Community Clinic (2021) 72 Cal.App.5th 158, 169.)

The court is not satisfied that Ms. Zilifyan’s declaration properly authenticates the exhibits relied on by Plaintiff because her declaration is devoid of any facts “sufficient to sustain a finding” that the exhibits are what Ms. Zilifyan claims them to be. (Evid. Code, § 1400.) For example, Exhibit 9 is supposed to be Plaintiff’s rebuttal for a counseling record, it includes a scan of a word document and scans emails with hand written annotations on them, including the words “World Institute of Scientology” without explanation of who authored the documents and emails and who made the annotations. Exhibit 12 is the cover of the book titled “Breaking the Code,” based On the Works Of L. Ron Hubbard. However, there are no facts to show that this is the cover of the book Plaintiff was told to read nor any admission by Defendants that this is indeed the cover of the book Plaintiff was required to read. Accordingly, Ms. Zilifyan’s testimony does not sufficiently provide facts to support the finding that the evidence is what Ms. Zilifyan’s purports it to be. If the exhibits Plaintiff relies on to oppose this Motion were provided by Defendants, then it was incumbent on Plaintiff to point to deposition transcripts or discovery responses wherein Defendants admitted to the authenticity of the exhibits now being relied upon by Plaintiff. Plaintiff failed to do this.

Moreover, Defendants had no basis to object to Plaintiff’s Exhibit 5, 6, 7, 10, 11, 13, 14, and 15, when Defendants relied on the same evidence. (See Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 856 [“Since Defendants had relied on this very same evidence, there was no merit to these objections, and they should not have been sustained”].) More importantly, the Defendant’s objections are also not in proper form as the objections are not numbered. (CRC, rule 3.1354 subd. (b), (c).) Therefore, the court declines to rule on Defendants’ objections.

Defendants’ evidentiary objections to the Declaration of Plaintiff Nichole Martinez

Defendants’ objections to the Declaration of Nichole Martinez are also not in proper form as the objections are not numbered. (CRC, rule 3.1354 subd. (b), (c).) Therefore, the court declines to rule on Defendants’ objections.

III. Discussion

A. Summary of Facts

The following facts are undisputed unless supported by citation to the evidence. On September 17, 2015, Plaintiff was hired by Defendant SCUHS for the position of Director of Health System Business Development. (Undisputed Material Fact (“UMF”) 1.) According to the job description for the Director of Health System Business Development, the director is responsible “for the growth and development of SCU Health System service offerings, including Spine Care, Human Performance, and Sports Medicine, as well as any other programs that may be established in the future to bring new business. (Plaintiff’s Compendium of Evidence (“PCOE”) Ex. 7; Defendants’ Compendium of Evidence (“DCOE”) Ex. 1.) This goal would “be accomplished via development and implementation of individualized strategic marketing programs as well as by developing a measurable outcome matrix using a systematic approach that will allow them to track and report applied efforts on a regular basis.” (PCOE Ex. 7; DCOE Ex. 1.) Job duties included developing and implementing proactive business development and growth strategies to increase program value with the approval of management. (PCOE Ex. 7; DCOE Ex. 1.)

Defendants assert that the ability to have a quantifiable measurement for marketing was not just a requirement but critical to measuring Plaintiff’s success. (Nagare Decl. ¶ 10, DCOE Ex. 1 , 2.) Plaintiff asserts that to measure marketing performance against goals, SCUHS’ front office staff was required to input patient information and where these patients were coming from into the electronic medical records (“EMR”). Plaintiff alleges that they failed to do so and thus she was unable to measure market performance. It was not her responsibility to enter such data and she “complained numerous times that the front office was not doing their job” and she should not have been disciplined for the front office’s shortcomings, especially when she put management on notice. (Martinez Decl. ¶ 18.) Apart from Plaintiff’s declaration, there is no evidence that Plaintiff informed Defendants that SCUHS front office was not inputting patient information. Plaintiff did not present any evidence that it was the front office’s staff's responsibility to acquire such information, or that Plaintiff informed management of the need for data for her to create quantifiable measurement for marketing.

At SCUHS, Robb Russell (“Russell”) was the Plaintiff’s supervisor. (PCOE Ex. 2 [Nagare Depo. at p. 70:19-23], PCOE Ex. 3 [Russell Depo. at p. 65:12-18].) Melissa Nagare (“Nagare”) was Plaintiff’s initial supervisor and Russell’s supervisor. (PCOE Ex. 2 [Nagare Depo. at pp. 70-2-6; 74-5-10], PCOE Ex. 3 [Russell Depo. at pp. 65:22-24, 66:9-13].) Ms. Nagare asserts that SCUHS was not seeing any results from Plaintiff’s marketing activities because the marketing effort did not result in new patients and Plaintiff was not tracking the results of advertisement or promotional events as confirmed by the financial reports produced by the Accounting Department. (Nagare Decl. ¶ 12; DCOE Ex. 41 [Nagare Depo. at pp. 79:23- 80:19; 99:15-25: 159:3-8], Ex. 43 [Russel Depo. at pp. 114:10-115:3].) Defendants maintain that Plaintiff was not meeting the revenue goals she was expected to meet. (DCO Ex. 3, 4, 9, 13.) Accordingly, SCUHS hired Chiropractic Business Academy (“CBA”) as a consultant to provide training and courses on business development and marketing on developing measurable plans to track and report marketing efforts. (Nagare Decl. ¶ 13.) At her deposition, Ms. Nagare admitted that before hiring CBA as a consultant, Plaintiff received no written or verbal warning that she was not meeting her job duties. (PCOE Ex. 2 [Nagare Depo. pp. 100:12-24; 101:12-24; 102:16-20; 103:17- 25; 106:13-22; 108:11-17; 112:13-17].)

Plaintiff asserts that in August 2017, her working conditions changed when Defendants entered into a consulting agreement with CBA. (Martnez Decl. ¶ 8; Nagare Decl. ¶ 13.) Ms. Nagare asserts that the decision to use CBA was a joint decision and she was not aware of CBA’s use of materials developed by L. Ron. Hubbard. (Nagare Decl. ¶ 14.) Mr. Russell asserts that he did not know there was a “link between Scientology and CBA” but that he did “know that some of their business principles were based on the writing of the founder of Scientology” but that he did “not know if those business practices are part of Scientology” because he was not a Scientologist. (PCOE Ex. 3 (Russell Depo. at p. 123:3-10].) According to the Consultant Agreement with CBA, the services that were to be provided include consulting services related to the implementation of “CBA Management Systems” and “Other ancillary services” such as “Workshops on Marketing, New Patients, Office Organization, Massage Center, Staff Management, Front Desk Mastery, Report of Findings and Office Expansion” and “Front Desk and Marketing Online Training Programs.” (DCOE Ex. 14; PCOE Ex. 5.)

Defendants admit that CBA used the book “Breaking the Code: The Mysteries of Modern Management” (hereinafter “Breaking the Code”), based on the works of L. Ron Hubbard as training material. (Nagare Decl. ¶¶ 17, 18; PCOE Ex. 1 [Martinez Depo. at p. 108:5-6], PCOE Ex. 2 [Nagare Depo. at pp. 189:14-15, 219:6-7].) On at least five occasions, Plaintiff asserts that she informed Ms. Nagare that she did not want to do training or coaching with CBA because it was uncomfortable to Plaintiff and she believed their tactics were unethical. Ms. Nagare responded by informing Plaintiff that everybody was required to do coaching with CBA. (PCOE Ex. 1 [Martinez Depo. at pp. 251:10-15, 260:12-15].) Plaintiff asserts that Ms. Nagare did not take Plaintiff’s concerns about CBA being Scientology-based seriously and that on one occasion she laughed at Plaintiff’s concerns. (Martinez Depo. at p. 249:9-14.) Moreover, at the time Plaintiff was to produce her Situation, Background, Assessment, and Recommendation (“SBAR”) report in May of 2018, Plaintiff informed her supervisor, Mr. Russell, that she felt uncomfortable and it was against her Christian principles to read other religious practice books, such as Breaking the Code. (Martinez Depo. at p. 289:10-10, PCOE Ex. 3 [Russell Depo. at pp. 119:17-120:1, 314:2-16, 314:20-25 ].) Plaintiff states that she felt that if she did not read Breaking the Code and did not revise her honest SBAR report, she faced the possibility of being written up and fired. (Martinez Depo. at pp. 284:14-21, 287:10-19, 304:19-23]; Russell Depo. at p. 316:17-23, 322:19-323:4.) After Plaintiff submitted the initial SBAR, her supervisor, Mr. Russell, complained that the SBAR did not address the issues based on the format in Breaking the Code. (Russell Depo. at p. 299: 6-14].) Russell instructed Plaintiff to redo the SBAR report and read Breaking the Code or she would possibly be written up or fired. (PCOE Ex. 1 [Martinez Depo. at p. 284: 14-21], PCOE Ex. 3 [Russell Depo. at p. 323:10-17].)

According to Plaintiff, reading “Breaking the Code” was a requirement of her training until she made a complaint to Cindy Scheibel (“Scheibel”) of Human Resources, about being forced to read the book. (PCOE Ex. 1 [Martinez Depo. at pp. 171:8-9, 174:17-14, 270:2-24, 289:10-17, 355:1-4, 355:18-19].) Plaintiff states that she complained to Scheible about having to read Breaking the Code” sometime after obtaining the first counseling record, during the end of May or mid-June, and obtaining her second counseling record. (PCOE Ex. 1 [Martinez Depo. at pp. 354:16-355:4].) Plaintiff asserts that she recalls making at least three complaints to Ms. Scheibel about her supervisor, Mr. Russell, making her read the book, Breaking the Code, and verbally instructing her that she had to attend training sessions with Ethan Danberg (“Dangberg”) from CBA. (Martinez Depo. at pp. 178:11-20, 179:8-21, PCOE Ex. 3 [Russell Depo. at pp. 190:1-9, 299:20-25, 321:10-16, 314:2-25, 316:17-23].) Mr. Russell’s supervisor, Ms. Nagare, was aware that Russell required Plaintiff to read the book and attend the training sessions, but she did not see it as a problem. (PCOE Ex. 2 [Nagare Depo. at pp. 304:3-12, 379:20-380:5].)

On May 10, 2018, Plaintiff received her first counseling record, with the admission that she had been given no prior “written” warning about the problem. (PCOE Ex. 2 [Martinez Depo. at p. 335:6-17.) Ex. 6; DCOE Ex. 19.) The problem was described as “The Ouch/IPC patient visit statistics is in the condition of non-existence and has been since September 1, 2017 and prior.” (PCOE Ex. 6; DCOE Ex. 19.) The improvement required for overall new patients to be enrolled in order “to reach normal, affluence, or power condition” “by the end of fiscal year 17-18” a “Completed Staff Work describing the situation, data, and solutions” being submitted “no later than close of business May 21, 2018.” (PCOE Ex. 6; DCOE Ex. 19.) The “Suggested Means of Improvement” was for Plaintiff to “Review chapters 9-18 of Breaking the Code” and that “Coaching sessions with Ethan Danberg from CBA are available.” (Martinez Depo. at pp. 342:1-343:2, 344:6-10; PCOE Ex. 6; DCOE Ex. 19.) “Failure to comply with the above within the specified period will result in further disciplinary action up to and including termination.” (PCOE Ex. 6; DCOE Ex. 19.)

On July 16, 2018, Plaintiff received a second counseling record, which was revised after Plaintiff complained to Human Resources about having to read Breaking the Code. (PCOE Ex. 1 [Martinez Depo. at p. 354:1-9], PCOE Ex. 10; DCOE Ex. 25.) The counseling record noted that Plaintiff failed to comply with: “[a] key component” of producing “a document describing the situation, data, and solutions, in the so-called SBAR format. An SBAR was submitted by the employee email on May 25, 2018 but it was deemed to be insufficient by her manager because it included considerable rationalizations (excuses) and was judged to lack sufficient content as well. A resubmission of the SBAR was requested but not produced. Following the employee’s concerns, conveyed to human resources and relayed to the manager, this Counseling Record and [sic] has been modified.” (PCOE Ex. 10; DCOE Ex. 25.)

The “Improvement Required” stated:

A document describing the situation, background, assessment and recommendations (SBAR) submitted for review no later than the end of business, July 18, 2018. Out of necessity, the SBAR document will include information that describes the current ecosystem in which the Health System exists and it is reasonable to include such so long as it is the basis for future planning, not rationalization of past performance. Recommendation shall be specific (defining what constitutes success), measurable (quantifiable) and set target dates for implementation and completion.

(PCOE Ex. 10; DCOE Ex. 25.)

The “Suggested Means of Improvement” states

The employee may search for resources, including published and or web-based descriptions of the SBAR format, as adapted to business situations.

Failure to comply with the above within the specified period will result in further disciplinary action up to and including termination.

(PCOE Ex. 10; DCOE Ex. 25.)

On July 27, 2018, Plaintiff received her third and final counseling record for failing to follow manager directives. (PCOE Ex. 11; DCOE Ex. 35.) According to the counseling record, on June 6, 2018, Plaintiff was informed by Ms. Nagare that she needed to review and approve all marketing events based on “ROI analysis” for which Plaintiff was responsible and that Ms. Nagare would be responsible for approving all Health System marketing expenditures for the remainder of the 2017-2018 fiscal year. (PCOE Ex. 11; DCOE Ex. 35.) Plaintiff submitted the ROI information on June 14, 2018, rather than the date Plaintiff provided of June 11, 2018, and failed to obtain approval for a marketing event and instead informed Mr. Russell and Ms. Nagare that SCUHS had committed to the event on July 12, 2018. (PCOE Ex. 11; DCOE Ex. 35.)

On July 25, 2018, Ms. Nagare noticed Plaintiff’s daily check-in referenced a health fair which had not been approved because the ROI analysis was still incomplete. (PCOE Ex. 11; DCOE Ex. 35.) Plaintiff insisted the ROI analysis had been sent on June 24, 2018, “however neither Dr. Nagare nor Dr. Russell have any record of such a message. Dr. Nagare requested Ms. Martinez forward the email, but Ms. Martinez has not done so at this time. Ms. Martinez sent an updated ROI analysis on July 25, 2018 which had the 7/12/2018 event listed as approved, but the ROI analysis for all the events were still incomplete.” (PCOE Ex. 11; DCOE Ex. 35.) The “Improvement Required” was for Plaintiff to comply with her supervisors’ directive and to strive to meet all deadlines. (PCOE Ex. 11; DCOE Ex. 35.)

Sometime on or about September 12, 2018, Plaintiff’s position was eliminated. (PCOE Ex. 3 [Russell Depo. at p. 425:1-11].) Plaintiff was given three options: (1) apply for the new position, (2) not apply for the new position and be paid out on her employment contract, or (3) apply for the job, not get the job, and be paid out. (Nagare Decl. ¶ 27; [PCOE. Ex. 2 [Nagare Depo. at pp. 456:16-457:12, 457:25-458:6, 477:9-18].) Plaintiff asserts that her position was not eliminated but instead transferred to another employee, Sherise Bright, for less pay. (Martinez Depo. at p. 382:8-25, PCOE Ex. 2 [Nagare Depo. at pp. 456:16-457:12, 476:10-11, 479:18-20].)

On September 19, 20218, Plaintiff sent an email to Scheibel stating that the organization chart made it clear to Plaintiff that her position was being absorbed into an existing position held by Sherise Bright and that Mr. Russell requested that Plaintiff “stay on through October, and transfer knowledge to Sherise as she does not have any background or knowledge” about SCUHS’ health system. (PCOE Ex. 15; DCOE Ex. 37.) Plaintiff states that as her position was “eliminated” there should be no reason for her to train anyone. (PCOE Ex. 15; DCOE Ex. 37.)

Plaintiff states that she felt her supervisor, Mr. Russell, and Ms. Nagare retaliated against her by giving her counseling reports despite doing “exactly what I was asked to do;” giving her additional counseling reports after complaining to Human Resources; and for deciding to terminate Plaintiff’s position and giving her the option to apply for a lower level position that was “underneath” Plaintiff’s experience. (PCOE Ex. 1: [Marinez Depo. at pp. 300:8-21, 1-12].)

On January 14, 2020, Plaintiff filed this action alleging the eleven causes of action set forth above (infra, pp. 1-2). Defendants now move for summary judgment or, in the alternative, summary adjudication as to all causes of action in Plaintiff’s Complaint.

B. Defendants Seek Summary Judgment or Adjudication on Three Issues

Cal. Rules of Court, rule 3.1350 requires the party moving for summary judgment, or summary adjudication, to submit a Separate Statement of Undisputed Material Facts (“UMF”), that “contains only material facts” and that separately identifies:

(A) Each cause of action, claim for damages, issue of duty, or affirmative defense that is the subject of the motion; and

(B) Each supporting material fact claimed to be without dispute with respect to the cause of action, claim for damages, issue of duty, or affirmative defense that is the subject of the motion.

(CRC, rule 3.1350(d).)

According to Defendants’ Separate Statement, the Motion pertains to the following three issues:

Issue No. 1: Plaintiff Failed to Meet Her Job Requirements. (UMF 1-20.)

Issue No. 2: Plaintiff Cannot Establish She was Subjected to An Adverse Employment Action Due to Her Religion or Religious Creed and Her First Six Causes of Action and Derivative Claims (Seventh through Eleventh Causes of Action) Fail as a Matter of Law. (UMF 21-31.)

Issue No. 3: Plaintiff Cannot Establish She was Subjected to Harassment, Extreme and Outrageous Conduct or that Any Defendant Uttered Defamatory Statements About Her and Her Claims for Individual Liability Against Melissa Nagare and Rob Russel Fails As a Matter of Law. Further, there is No Evidence of Oppression, Fraud or Malice Entitling Plaintiff to Punitive Damages. (UMF 32-36.)

Defeating summary judgment requires only a single disputed material fact. (See CCP § 437c(c) [a motion for summary judgment “shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law”] [italics added].) Thus, any disputed material fact means the court must deny the motion – the court has no discretion to grant summary judgment. (Zavala v. Arce (1997) 58 Cal.App.4th 915, 925, fn. 8; Saldana v. Globe-Weis Systems Co. (1991) 233 Cal.App.3d 1505, 1511-1512.)¿¿¿¿

i. Triable Issues of Material Fact Exists as to Issue No. 1

In UMF No. 11, Defendants maintain that revenue targets were set by the Board of Regents of SCUHS, but Defendants failed to cite admissible evidence in support of this material fact. Accordingly, UMF No. 11 is disputed.

Defendants UMF No. 9 states numerous facts, including the fact that CBA’s webinars were offered in email blasts, but were not mandatory. However, Defendants fail to cite evidence to show that Plaintiff knew or was informed that the CBA webinars were not mandatory or that she could opt out of the CBA trainings. Accordingly, UMF No. 9 is disputed. Defendants failed to meet their initial burden.

Moreover, according to the Plaintiff’s deposition testimony, Ms. Nagare told Plaintiff that “everybody” had to do coaching with CBA. (PCOE Ex. 1 [Martinez Depo. at pp. 251:10-15, 260:12-15].) Plaintiff’s supervisor, Mr. Russell, admitted during his deposition that he told Plaintiff that she had to read the book Breaking the Code and attend coaching with a CBA representative. PCOE Ex. 3 [Russell Depo. at pp. 190:1-9, 299:20-25, 321:10-16, 314:2-25, 316:17-23].) Accordingly, triable issues of fact exist as to UMF No. 9.

UMF No. 18 states that Plaintiff complained for the first time about working with CBA to Scheibel only after she received her second warning or her second counseling record. (PCOE Ex. 10, DCOE Ex. 25.) In support of this fact, Defendants cite the Declarations of Ms. Nagare and Mr. Russell, where they assert they gave Plaintiff the second warning on July 9, 2019. (Nagare Decl. ¶¶ 24, 25, Russell Decl. ¶ 12.) Defendants also cite to DCOE Exhibit 25 which is the July 16, 2018, counseling record, that references the fact that the counseling record had been “revised” “[f]ollowing the employee’s concerns, conveyed to Human Resources and relayed to the manager [.]” (DCOE Ex. 25.) Although DCOE Exhibit 25 references the fact that the second counseling record had been revised due to the Plaintiff's concerns, the reason for the revision is not stated and the evidence cited is insufficient to show that Plaintiff complained about working with the CBA and that the complaint was, in fact, Plaintiff’s first time making a complaint about CBA to Human Resources. Accordingly, Defendants failed to meet their initial burden that UMF No. 18 is not disputed.

Moreover, at her deposition, Plaintiff testified that she told Ms. Nagare that did not want to work with the CBA because it made her uncomfortable but was told the coaching was required. (PCOE Ex. 1 [Martinez Depo. at pp. 251:10-15, 260:12-15].) Plaintiff further asserts that she made at least three complaints to Ms. Schiebel about the CBA. (PCOE Ex. 1 [Martinez Depo. at pp. 178:11-20, 179:8-21].) Defendants fail to rebut this evidence. Therefore, triable issues of fact exist as to UMF No. 18.

UMF No. 19 asserts that Plaintiff’s SBAR was deficient and that she was asked to do a rewrite because it “rationalized her failure to do things instead of finding solutions for her deficiencies.” (UMF 19.) Whether the initial SBAR that Plaintiff submitted was deficient is a triable issue of fact as Plaintiff explains that several programs run by SCUHS that had not become operational until the middle or end of the fiscal year, that the services for the OUCH program were in a residential area with no heavy drive-by traffic, and the operating hours did not meet the needs of the urgent care target market because “outside of the flu season, most people will visit urgent cares after work or on the weekends.” (DCOE Ex. 26.) The court finds that a trier of fact could find that Plaintiff’s initial SBAR was not deficient and did not rationalize Plaintiff’s deficiencies but the deficiencies of SCUHS programs. (See Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 840 [“The trial court may not weigh the evidence in the manner of a factfinder to determine whose version is more likely true.¿Nor may the trial court grant summary judgment based on the court's evaluation of credibility.”].) Accordingly, Defendants failed to meet their initial burden of showing that UMF No. 19 is undisputed.

UMF No. 20 also states various facts, including the fact that “SCU Health tracked the referral source to new patients, which showed Plaintiff’s events and ads rarely resulted in new patients.” (UMF 20.) In support of UMF No. 20, Defendants cite the “07.27.18 Counseling Record and supporting documents” but the counseling record and supporting documents fail to show that Plaintiff’s events failed to bring in new patients. (DCOE Ex. 35.) Moreover, despite Defendants citing Exhibits 28 to 36 in further support of UMF No. 20, the Declaration of Robb Russell refers to many of the exhibits as “supporting documentation” without explaining who authored the exhibits. (Russell Decl. ¶ 14.) Therefore, DCOE Exhibits 28 to 36 are not properly authenticated and UMF No. 20 is disputed.

Defendants failed to meet their initial burden of showing no triable issues of material fact exist as to Issue No. 1 because UMF Nos. 11, 18, 19, and 20 are disputed. Therefore, summary adjudication is denied as to Issue No. 1.

ii. Triable Issues of Material Fact Exists as to Issue No. 2

UMF No. 24 contains several facts, including the fact that the CBA never asked SCUHS’ employees to read the book Breaking the Code. (UMF No. 24.) However, none of the evidence cited in support of UMF No. 24 supports the proposition that the CBA never required SCUHS’ employees to read the book Breaking the Code. Accordingly, UMF No. 24 remains disputed.

Moreover, Plaintiff’s opposition cites her first counseling record showing that she was instructed by her supervisor, Mr. Russell, to read the book. The counseling record itself suggested that the failure to comply with any of the recommendations could result in further disciplinary action, including termination. (PCOE Ex. 6; DCOE Ex. 19.) Plaintiff presents evidence that Ms. Nagare was aware that Mr. Russell was requiring Plaintiff to read the book and attend training sessions. (PCOE Ex. 2 [Nagare Depo. at pp. 304:3-12, 379:20-380:5].) Plaintiff also presents evidence that one of the reasons her first SBAR was rejected by her supervisor was because it did not address issues based on the format in Breaking the Code. (PCOE Ex. 3 [Russell Depo. at p. 299: 6-14].) Lastly, Plaintiff asserts that Mr. Dangberg told her that if she did not do the CBA coaching, it would affect her performance evaluation and the ability to do her job and would have possible ramifications from her superiors. (PCOE Ex. 1 [Martinez Depo. at p. 208:16-14].)

Therefore, UMF No. 24 is disputed.

UMF No. 25 states that “[t]he training sessions offered by CBA were recommended but were not mandatory.” (UMF No. 25.) While Defendants admit that the CBA webinars were offered in email blasts, they fail to cite evidence to show that the webinars were not mandatory and that this fact was communicated to all SCUHS employees, including Plaintiff. (Nagare Decl. 16.) Accordingly, Defendants fail to meet their initial burden of showing that UMF No. 25 is undisputed. Moreover, Plaintiff asserts that Ms. Nagare informed her that “everybody” had to do coaching with CBA. (PCOE Ex. 1 [Martinez Depo. at pp. 251:10-15, 260:12-15].) Plaintiff’s supervisor, Mr. Russell admitted during his deposition that he told Plaintiff that she had to read the book Breaking the Code and attend coaching with a CBA representative. (PCOE Ex. 3 [Russell Depo. at pp. 190:1-9, 299:20-25, 321:10-16, 314:2-25, 316:17-23].)

Therefore, UMF No. 25 is disputed.

UMF No. 27 states: “It was only after Plaintiff received her second warning on July 9, 2018, that Plaintiff, for the first time, and eleven months after working with CBA, complained to SCU’s Cindy Scheibel, from the Human Resources Department, about the alleged Scientology training used by CBA and the warnings she had received.” As in UMF No. 18, in support of UMF No. 27 Defendants cite to the Declarations of Ms. Nagare and Mr. Russell, where they assert they gave Plaintiff the second warning on July 9, 2019. (Nagare Decl. ¶¶ 24, 25, Russell Decl. ¶ 12.) Defendants also cite DCOE Exhibit 25 which is the July 16, 2018, counseling record, that references the fact that the counseling record had been “revised” “[f]ollowing the employee’s concerns, conveyed to Human Resources and relayed to the manager [.]” (DCOE Ex. 25.) Although DCOE Exhibit 25 references the fact that the second counseling record had been revised due to the Plaintiff's concerns, the reason for the revision is not stated and the evidence cited is insufficient to show that Plaintiff complained about working with the CBA and that the complaint was the first time Plaintiff made a complaint about CBA to Human Resources. Accordingly, UMF No. 27 is disputed.

UMF No. 28 states several facts including the fact that “Plaintiff never revised her SBAR [sic] Instead, she told her coworkers she was going to sue SCU if she was written up one more time[.]” (UMF 28.) In support of UMF No. 28, Defendants cite DCOE Exhibit 26 which is the SBAR itself, but it does not show that Plaintiff failed to submit a revised SBAR. Defendants also cite DCOE Exhibit 27 but Exhibit 27 is hearsay and not admissible for its truth. Moreover, even if DCOE Exhibit 27 was admissible, it fails to show that Plaintiff failed to submit a revised SBAR. Accordingly, Defendants fail to meet their initial burden of showing that UMF No. 28 is undisputed.

UMF No. 29 contains several statements of purported material facts, including the fact that “SCU tracked the referral source to new patients, which showed Plaintiff’s events and ads rarely resulted in new patients.” (UMF 29.) In support of UMF No. 29, Defendants cite the “07.27.18 Counseling Record and supporting documents” but the supporting documents fail to show that Plaintiff’s events failed to bring in new patients. (DCOE Ex. 35.) Moreover, the Declarations of Ms. Nagare and Ms. Russell fail to state facts or cite admissible evidence to show that Plaintiff’s events and ads failed to bring in new patients. (Nagare Decl. ¶ 26, Russel Decl. ¶ 14.) Therefore, the Defendants fail to meet their initial burden of showing that UMF No. 29 is undisputed.

UMF No. 30 states several facts, including the following:

Due to the lack of improvement in the marketing department SCU decided to outsource its marketing by hiring Healthcare Success . . . It was evident Plaintiff’s job performance had not improved and the department was not meeting its goals.

(UMF 30.) In support of UMF 30, Defendants cite to the Declarations of Ms. Nagare and Mr. Russell, but the Declarations fails to explain who decided that the Marketing Department had not made any improvements, let alone the determination that Plaintiff’s performance had not improved. (Nagare Decl. ¶ 27, Russell Decl. ¶ 15.) Defendants also cite the deposition testimony of Ms. Nagare, but the relevant portions of the deposition testimony are missing from DCOE and Exhibit 41. (DCOE Ex. 41 [Nagare Depo. at pp. 118 & 195.) Therefore, Defendants fail to show that UMF No. 30 is undisputed.

Defendants failed to meet their initial burden of showing no triable issues of material fact exist as to Issue No. 2 because UMF Nos. 24, 25, 27, 28, 29, and 30 are disputed. Therefore, summary adjudication is denied as to Issue No. 2.

iii. Triable Issues of Material Fact Exists as to Issue No. 3

UMF No. 32 states the following facts:

Neither Nagare nor Russell had knowledge of Plaintiff’s Christian beliefs . . . They never took any actions to force Plaintiff to read any Scientology materials, to require her to attend any group or one-on-one meetings during which Scientology was discussed or otherwise engaged in any conduct based on religion.

(UMF 32.)

Defendants present evidence that Mr. Russell does not recall Plaintiff ever informing him that she was Christian, just that Plaintiff objected to the CBA assignment due to Scientology. (DCOE Ex. 44 [Russell Depo. at p. 314: 17-25].) Defendants cite to page “0133” of the deposition testimony of Melissa Nagare, but the page is not included in DCOE Exhibit 41. Mr. Russell’s declaration asserts that he never discussed Plaintiff’s religious faith. (Russell Decl. ¶ 16.) Similarly, Ms. Nagare asserts that she never made any religion-based statement or required Plaintiff to read or attend any Scientology-based material or meetings. (Nagare Decl. ¶ 28.)

While the court finds that Defendants met their initial burden of showing that Plaintiff’s religious beliefs were never discussed, Plaintiff met her subsequent burden of showing that triable issues of fact exist. Plaintiff asserts she told her supervisor, Mr. Russell, that it was against her Christian principles to read other religious practice books like Breaking the Code. (PCOE Ex. 1 [Martinez Depo. at p. 289:10-10], PCOE Ex. 3 [Russell Depo. at pp. 119:17-120:1, 314:2-16, 314:20-25 ].) Moreover, whether Breaking the Code teaches Scientology-based practices is a disputed issue of fact because the contents of the book are at issue and the book has not been presented into evidence. No expert testimony has been offered as to whether the book contains Scientology principles.

Plaintiff further asserts that during the coaching sessions with Mr. Dangberg from CBA, she was told to “use the teachings that they use in the church to have me suppress any memories or negativity going on in my brain that will allow me to be more creative.” (PCOE Ex. 1 [Martinez Depo. at p. 207:16-22].) Plaintiff asserts that during the coaching sessions with Mr. Dangberg, he would dig into Plaintiff’s personal life and relationships to assess “what negative aspects of my past are coming to the forefront of my mind to block my ability to do my job properly.” (Martinez Depo. at p. 209:21-210:17.) Plaintiff asserts that Mr. Dangberg told her that part of L. Ron Hubbard’s training was to help “people suppress negative aspects in their life or their memories that allow them to overcome different barriers, you know, to their current life.” (Martinez Depo. at p. 213:6-11.) Whether the coaching sessions with the CBA are based on Scientology principles remains a disputed issue of fact as neither party has presented evidence as to what principles are practiced by the Church of Scientology and whether those practices differed or were similar to the ones Plaintiff was “coached” on when attending CBA coaching or training.

Moreover, Defendants failed to rebut Plaintiff’s evidence that Ms. Nagare informed Plaintiff that CBA coaching was mandatory. (Ex. 1 [Martinez Depo. at pp. 251:10-15, 260:12-15].) Plaintiff’s supervisor, Mr. Russell, did the same. (PCOE Ex. 3 [Russell Depo. at pp. 190:1-9, 299:20-25, 321:10-16, 314:2-25, 316:17-23].)

Based on the above, the court finds that a triable issue of material fact exists as to UMF 32. Therefore, summary adjudication is denied as to Issue No. 3.

Defendants’ Motion is denied.

Conclusion

For the reasons set forth above, Defendants’ motion for summary judgment or, in the alternative, summary adjudication is denied. Defendants to give notice.