Judge: Gail Killefer, Case: 21STCV15251, Date: 2022-10-28 Tentative Ruling
Case Number: 21STCV15251 Hearing Date: October 28, 2022 Dept: 37
HEARING DATE: October 28, 2022
CASE NUMBER: 21STCV15251
CASE NAME: Lisa Thompson v. Ogletree, Deakins, Nash, Smoak, & Stewart, P.C.
MOVING PARTY: Defendant, Ogletree, Deakins,
Nash, Smoak, & Stewart, P.C.
OPPOSING PARTY: Plaintiff Lisa Thompson
TRIAL DATE: March 14, 2023
PROOF OF SERVICE: OK
PROCEEDING: Motion for Summary
Judgment, or in the Alternative, Summary Adjudication
OPPOSITION: September 30, 2022
REPLY: October
7, 2022
Tentative: Defendant’s
motion for summary judgment is granted. Defendant is to give notice.
This action arises out of Plaintiff Lisa Thompson’s former
employment with Ogletree, Deakins, Nash, Smoak, & Stewart, P.C. (“Defendant”).
Plaintiff alleges that she was employed with Defendant from approximately 2007
through her allegedly wrongful termination on or about March 11, 2020.
Plaintiff alleges that on October 3, 2018, Plaintiff underwent surgery on her
right knee and took leave of absence through the end of January 2019. On July
1, 2019, Plaintiff alleges she requested a medical leave of absence due to
work-related stress and subsequently underwent surgery on her left knee on or
about September 1, 2019. Plaintiff alleges she was released to return to work
on March 6, 2020. On March 10, 2020, Plaintiff returned to work and alleges she
had a meeting with the office administrator and managing shareholder. Plaintiff
alleges she was terminated effective March 11, 2020, on pretextual grounds.
Plaintiff’s operative Complaint alleges the following nine
causes of action: (1) disability discrimination in violation of the Fair
Housing Employment Act (“FEHA”); (2) failure to accommodate disability in
violation of the FEHA; (3) failure to engage in the interactive process in
violation of the FEHA; (4) retaliation in violation of the FEHA (Government Code
§ 12940(h)); (5) failure to prevent discrimination, harassment and retaliation
in violation of the FEHA; and (6) wrongful termination in violation of public
policy.
Defendant now moves for summary judgment or, in the
alternative, summary adjudication on all of the following:
1.
Issue No 1: Defendant is entitled to summary
adjudication in its favor and against
Plaintiff on the First Cause of Action for
Disability Discrimination because Plaintiff cannot, as a matter of law,
establish a claim.
2.
Issue No 2: Defendant is entitled to summary
adjudication in its favor and against Plaintiff on the Second Cause of Action
for Failure to Accommodate Disability because Plaintiff cannot, as a matter of
law, establish a claim.
3.
Issue No 3: Defendant is entitled to summary
adjudication in its favor and against Plaintiff on the Third Cause of Action
for Failure to Engage in Interactive Process because Plaintiff cannot, as a
matter of law, establish a claim.
4.
Issue No. 4: Defendant is entitled to summary
adjudication in its favor and against Plaintiff on the Fourth Cause of Action
for Retaliation because Plaintiff cannot, as a matter of law, establish a
claim.
5.
Issue No. 5: Defendant is entitled to summary
adjudication in its favor and against Plaintiff on the Fifth Cause of Action
for Failure to Prevent Discrimination, Harassment, and Retaliation because
Plaintiff cannot, as a matter of law, establish a claim.
6.
Issue No. 6: Defendant is entitled to summary
adjudication in its favor and against Plaintiff on the Sixth Cause of Action
for Wrongful Termination in Violation of Public Policy because Plaintiff
cannot, as a matter of law, establish a claim.
7.
Issue No. 7: Plaintiff s claim for punitive damages
fails because there is not clear and convincing evidence that any managing
agent of Defendant engaged in, authorized, or ratified any acts of malice,
oppression or fraud against Plaintiff.
Plaintiff opposes the motion.
Overruled: 1-4.
Sustained: 6-9.
Objections to Declaration of Lisa Thompson
Overruled: 1-2, 9.
Sustained-in-part: 4, 5, 8.
Sustained: 3, 6-7, 10-11.
Objection 4: sustained-in-part as to everything after “even
though no one had met with me.”
Objection 5: sustained-in-part as to “that Ed Fisher . . . but
I was not told what he did or what he found.”
Objection 8: sustained-in-part as to “no one had ever
cared.”
Objections to Deposition of Lisa Thompson
Overruled: 12-15, 17-19, 21-23,
27-34.
Sustained-in-part: Objection 20 as
to everything after “And Christy....”
Sustained: All other objections.
Objections to Deposition of Christy Barrett
Overruled: 35, 38-40, 44-51.
Sustained: All other objections.
Objections to Deposition of Ed Fisher
Overruled: 52-55, 60-61.
Sustained: All other objections.
Objections to Deposition of Marc Fregoso
Overruled:
62-63.
Sustained:
64.
Objections to Deposition of Robert Roginson
Overruled: 65-67.
Objections to Plaintiff’s Exhibits & Materials
Overruled: 68-76, 79-81
Sustained: 77-78, 82
“The
purpose of the law of summary judgment 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. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) CCP § 437c(a) provides:
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 may be made at any time after 60 days have elapsed since the general
appearance in the action or proceeding of each party against whom the motion is
directed or at any earlier time after the general appearance that the court,
with or without notice and upon good cause shown, may direct…. The motion shall be heard no later than 30
days before the date of trial, unless the court for good cause orders
otherwise. The filing of the motion
shall not extend the time within which a party must otherwise file a responsive
pleading.
A
motion for summary judgment may 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.” (CCP § 437c(c).)
“The
motion shall be supported by affidavits, declarations, admissions, answers to
interrogatories, depositions, and matters of which judicial notice shall or may
be taken. The supporting papers shall
include a separate statement setting forth plainly and concisely all material
facts that the moving party contends are undisputed. Each of the material facts stated shall be
followed by a reference to the supporting evidence. The failure to comply with this requirement
of a separate statement may in the court’s discretion constitute a sufficient
ground for denial of the motion.” (CCP §
437c(b)(1); see also Cal. Rules of
Court, rule 3.1350(c)(2) & (d).)
In
analyzing motions for summary judgment, courts must apply a three-step
analysis: “(1) identify the issues framed by the pleadings; (2) determine
whether the moving party has negated the opponent's claims; and (3) determine
whether the opposition has demonstrated the existence of a triable, material
factual issue.” (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294 (Hinsley).) CCP § 437c(p)(2) provides:
A defendant or cross-defendant has met his or her burden of
showing that a cause of action has no merit if the party has shown that one or
more elements of the cause of action, even if not separately pleaded, cannot be
established, or that there is a complete defense to the cause of action. Once the defendant or cross-defendant has met
that burden, the burden shifts to the plaintiff or cross-complainant to show
that a triable issue of one or more material facts exists as to the cause of
action or a defense thereto. The
plaintiff or cross-complainant shall not rely upon the allegations or denials
of its pleadings to show that a triable issue of material fact exists but,
instead, shall set forth the specific facts showing that a triable issue of
material fact exists as to the cause of action or a defense thereto.
(CCP §
437c(p)(2).) The court must “view the
evidence in the light most favorable to the opposing party and accept all
inferences reasonably drawn therefrom.”
(Hinesley, 135 Cal.App.4th at p. 294; Dore
v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389 [Courts “liberally
construe the evidence in support of the party opposing summary judgment and
resolve doubts concerning the evidence in favor of that party.”].) A motion for summary judgment must be denied
where the moving party’s evidence does not prove all material facts, even in the
absence of any opposition (Leyva v. Sup.
Ct. (1985) 164 Cal.App.3d 462, 475) or where the opposition is weak (Salasguevara v. Wyeth Labs., Inc. (1990)
222 Cal.App.3d 379, 384, 387).
“In analyzing an employee’s claim for unlawful
discrimination under the FEHA, California courts have adopted the three-stage,
burden-shifting test the United States Supreme Court established in McDonnell Douglas Corp. v. Green (1973)
411 U.S. 792 [Citations.]” (Swanson
v. Morongo Unified School Dist. (2014) 232 Cal.App.4th 954, 964 (Swanson).) “This so-called McDonnell Douglas test reflects the principle that direct evidence
of intentional discrimination is rare, and that such claims must usually be
proved circumstantially. Thus, by
successive steps of increasingly narrow focus, the test allows discrimination
to be inferred from facts that create a reasonable likelihood of bias and are
not satisfactorily explained.” (Swanson, 232 Cal.App.4th at p. 964.)
California courts have recognized that the McDonnell Douglas test was originally
developed for use at trial, not in summary judgment proceedings. (Swanson,
232 Cal.App.4th at p. 965.) “California’s
summary judgment law places the initial burden on a moving party defendant to
either negate an element of the plaintiff’s claim or establish a complete
defense to the claim.” (Id. at pp. 965-966.) “The burdens and order of proof therefore
shift under the McDonnell Douglas
test when an employer defendant seeks summary judgment. [Citations.]
An employer defendant may meet its initial burden on summary judgment,
and require the employee plaintiff to present evidence establishing a triable
issue of material fact, by presenting evidence that either negates an element
of the employee's prima facie case, or establishes a legitimate
nondiscriminatory reason for taking the adverse employment action against the
employee.” (Id. at p. 966.) “[T]o avoid
summary judgment [on the second of these two grounds], an employee claiming
discrimination must offer substantial evidence that the employer's stated
nondiscriminatory reason for the adverse action was untrue or pretextual, or
evidence the employer acted with a discriminatory animus, or a combination of
the two, such that a reasonable trier of fact could conclude the employer
engaged in intentional discrimination.”
(Ibid.)
B. Issue 1: Disability
Discrimination under the FEHA
To establish a prima facie case for discrimination under the
FEHA, a plaintiff must show that “(1) [she] was a member of a protected class,
(2) [she] was qualified for the position [she] sought or was performing
competently in the position [she] held, (3) [she] 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 (Guz).)
Defendant contends that summary adjudication is warranted as
to the first issue because Plaintiff cannot establish a prima facie case for
disability discrimination as she was not disabled at the time she was
terminated. (Motion, 19-20.) Defendant further explains Plaintiff’s alleged
admission that she was unable to perform the duties of the position with, or
without, accommodations shows Defendant had good cause to terminate her
employment. (Id.; citing Green v. State of California (2007) 42
Cal.4th 254, 265.) Defendant highlights “Plaintiff admitted she could not
perform the job without an assistant... notwithstanding that all other firm
records specialists did.” (Id.; UMF 132, 134.) “Ogletree is not required
to eliminate the essential functions of the records specialist position or
increase others’ workloads and make them work harder to accommodate Plaintiff.”
(Id.; citing Nealy v. City of Santa Monica (2015) 234 Cal.App.4th
359, 375.)
Defendant also contends Plaintiff cannot show any disability
to be the cause of her termination, as Ogletree granted Plaintiff’s requested
accommodations on several occasions. (Motion, 20-21.) Defendant alternatively
contends that even if Plaintiff can establish a prima facie case for disability
discrimination, then summary adjudication is still warranted because Defendant
had legitimate, nondiscriminatory reasons for Plaintiff’s termination, namely
that Plaintiff could not perform the duties of her position and “Ogletree had
no reason to pay for two people to do the job one could easily do.” (Motion, 21.)
Defendant lastly contends Plaintiff cannot establish any pretext as to
Defendant’s termination decision, again highlighting Plaintiff’s own admission
she could not perform the duties of the position. (Motion, 22-23; UMF 132.)
In opposition, Plaintiff first contends she did not admit
she could not perform her duties, but rather “plaintiff simply requested some
assistance to deal with the backlog that had begun when Ogletree moved her to a
records room that did not have sufficient room for her files.” (Opposition,
20.) Plaintiff further contends “Defendant could have simply removed all the
office services back-up duties from [Plaintiff’s] plate that were not in fact
essential to her records clerk position” so that Plaintiff could perform more
of her assigned duties, and asserts “the facts demonstrate that Ogletree did
not care about any backlog until [Plaintiff] requested accommodations.” (Id.)
Plaintiff fails, however, to point to any evidence to substantiate these
claims. Plaintiff continues by arguing that it is a “fact” and “direct evidence
of discrimination” that Plaintiff was treated differently after requesting a
leave of absence. (Id.) As
Plaintiff requested accommodations on
several occasions over the course of several years, and Defendant granted those
accommodations, Plaintiff again fails to explain how she was treated
differently or how this meant direct evidence of discrimination.
Plaintiff further asserts she made requests for assistance
and notified Defendant of the backlog before she took a leave of absence in
October 2018, and
“[i]f in in fact Ogletree cared about the accurate and timely
processing of legal documents as it argues, then it would have addressed
Thompson’s requests for assistance back when she first notified Ogletree of the
backlog - well before she took a leave of absence in October 2018. If in fact
Ogletree cared about the state of [Plaintiff’s] records room, then Barrett or
Raizman who made it a point to go the 11th floor and to [Plaintiff’s] records
room regularly would have addressed those concerns with [Plaintiff] prior to
her leaves of absence.” (Id.)
Plaintiff fails to point to any supporting authorities to
suggest that Defendant, or Defendant’s employees, needed to discuss these
concerns with Plaintiff. Plaintiff further contends “Ogletree did not provide
[Plaintiff] with any training, counseling, or any assistance even when she
informed Ogletree that she was struggling with her workload, the assignment or
200 new cases, and physical therapy she was undergoing for her knee,” but
Plaintiff again fails to point to any supporting authorities to show that
Defendant must have done so. (Opp., 21.)
In reply, Defendant contends that summary adjudication is
warranted because Defendant’s managing shareholder received reports regarding
“Plaintiff’s multiple shortcomings” and, in speaking with Plaintiff, discovered
Plaintiff’s admission that “she could not do the job without help.” (Reply, 2-3.)
Defendant contends these formed the basis for the decision to terminate her
employment, and “[n]one of the circumstantial evidence Plaintiff sets forth
comes close to rising to the level required to raise a rational inference that
Ogletree’s reasons were anything but innocent.” (Reply, 3.) Defendant also
correctly explains that while there may be a dispute as to the verbiage of
Plaintiff’s admission, Defendant’s managing shareholder relied on what
Plaintiff said to him, and his impression that Plaintiff “could not do the job
she was hired to do herself without help.” (Reply, 3-4.) Lastly, Defendant contends
Plaintiff’s contentions ask this court to speculate as to allegedly true
intentions or motives, rather than pointing to opposing evidence. As Defendant points out, the overwhelming
evidence shows Plaintiff’s performance was not exemplary, the photographic
evidence is not disputed in its authenticity by Plaintiff, Plaintiff was not
disciplined for doing non-records clerk duties, and Defendant’s managing
employees relied on the evidence before them in deciding to terminate
Plaintiff’s employment. (Reply, 4-9; citing O'Neil v. Dake (1985) 169
Cal.App.3d 1038, 1044-45; Veronese v. Lucasfilm Ltd. (2012) 212
Cal.App.4th 1, 21.)
Given the foregoing, and viewing the evidence submitted in
the light most favorable to Plaintiff, the court finds that Plaintiff has
failed to demonstrate that a triable issue of material fact exists with respect
to her first cause of action for disability discrimination. As the court notes
above, Plaintiff’s first cause of action alleges that Defendant discriminated
against her on the basis of his disability. However, Plaintiff has provided
little to dispute or oppose the evidence Defendant puts forth of Plaintiff
failing to complete her assigned duties in a satisfactory manner, and only
provides conclusory contentions to this court regarding what Defendant should
have done, or was obligated to do, without supporting authorities to illuminate
such a standard being imposed on an employer. Here, Defendant has shown it
accommodated Plaintiff’s several requests for accommodation and leave, and
ultimately made a decision to terminate Plaintiff’s employment as they
discovered Plaintiff could not perform the duties of the position without
further help, which Plaintiff also concedes. As such, Plaintiff has failed to
show that she was performing her duties competently and further has failed to
show discriminatory motive beyond mere assertions. Because Plaintiff has failed
to demonstrate a triable issue with respect to Defendant’s conduct towards her
regarding her disability, summary adjudication is granted with respect to the
first issue.
C. Issue 2: Failure To Accommodate Disability under
the FEHA
It is unlawful under FEHA for employers to “fail to make
reasonable accommodation for the known physical or mental disability of an¼
employee.” (Gov. 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. [Citation.]”
(Scotch v. Art Inst. of Cal.-Orange County, Inc. (2009) 173
Cal.App.4th 986, 1009-10.) “While a
claim of failure to accommodate is independent of a cause of action for failure
to engage in an interactive dialogue, each necessarily implicates the
other.” (Gelfo v. Lockheed Martin
Corp. (2006) 140 Cal.App.4th 34, 54.)
As discussed above, Defendant has submitted evidence
demonstrating that Plaintiff’s several requests for accommodations were granted
and “even with those accommodations, Plaintiff failed to perform her duties.”
(Motion, 23.) Defendant also contends “Ogletree could not afford to pay the
salary of a third person when there was proof a single person could Plaintiff’s
workload.” (Motion, 23-24; citing Swanson v. Morongo Unified School Dist.
(2014) 232 Cal.App.4th 954, 970.) Further, Plaintiff has submitted no evidence to
demonstrate that she requested accommodations and was refused by Defendant.
Instead, Plaintiff claims she “attempted to return” from her leave of absence
in March 2020, but was terminated. (Opp., 21-22.) “A medical leave of absence
is not actually granted if the plaintiff is not returned to work once the leave
is over. By failing to return her to work, defendant failed to accommodate
her.” (Id.)
In reply, Defendant again reiterates Plaintiff is unable to
show she would perform the duties of her position competently even if she had
been allowed to return to her position. (Reply, 9-10.)
Indeed, Plaintiff admits that she needed additional help,
and Defendant has shown it granted each of Plaintiff’s prior accommodation
requests prior to termination. As such, Plaintiff has not demonstrated that Defendant
refused her any reasonable accommodations for her disability.
Accordingly, summary adjudication is granted as to the
second issue.
D. Issue 3: Failure to Engage In Interactive Process
under the FEHA
Gov. Code § 12940(n) requires
employers to engage in a good faith interactive process 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 .
. ..” (Raine v. City of Burbank (2006)
135 Cal.App.4th 1215, 1222.) Generally, “[t]he employee bears the burden of
giving the employer notice of the disability. [Citation.]” (Ibid.) To prevail on a claim under
section 12940, subdivision (n) for failure to engage in the interactive
process, an employee must identify a reasonable accommodation that would have
been available at the time the interactive process should have occurred." (Scotch v. Art Institute of California (2009)
173 Cal. App. 4th 986,1018-1019.)
As discussed above, Defendant has shown Plaintiff could not
perform the duties of her position even with the requested accommodations, and
Defendant correctly contends an employer cannot be obligated “to engage in a
process that was guaranteed to be futile.” (Motion, 24-25; citing Claudio v.
Regents (2005) 134 Cal.App.4th 224 [citing Swonke v. Sprint Inc.
(2004) 327 F.Supp.2d 1128, 1137] [incorrectly cited as “Sworke” in
Defendant’s motion].)
Accordingly, summary adjudication is granted as to the third
issue.
F. Issue 4: Retaliation Under The FEHA
Courts employ the same burden-shifting analysis for claims of retaliation under the FEHA as they do for claims of discrimination. (Yanowitz, supra, 36 Cal.4th at p. 1042.) Thus, once the employee establishes a prima facie case of retaliation, the burden shifts to the employer to provide a legitimate, nonretaliatory reason for its action. If the employer sustains its burden, the presumption of retaliation disappears, and the burden shifts back to the employee to prove intentional retaliation. (Ibid.) A prima facie case of retaliation under the FEHA consists of the following elements: (1) the plaintiff engaged in a protected activity, (2) the employer subjected the plaintiff to an adverse employment action, and (3) a causal link existed between the protected activity and the employer’s action. (Ibid.)
Plaintiff’s fourth cause of action is for retaliation relating to her disability and request for accommodation.
Here, as discussed above, Defendant has shown Plaintiff could not perform her duties competently, “failed to perform at the level of her counterparts,” and Defendant “readily honored requests for accommodation on two prior occasions.” (Motion, 25-26.) In opposition, Plaintiff points to earlier arguments that “defendant did not inform plaintiff of its concerns or allow her any opportunity to address or improve those concerns.” Plaintiff also contends she has “offered a plethora of evidence” that “defendant treated her vastly different prior to her requests for leaves” and “that the reasons offered by defendant for its firing of a long-time employee are pretextual.” (Opp., 23-24.) In reply, Defendant reiterates earlier arguments showing Plaintiff has not presented opposing evidence to create a triable issue, but rather relies on conclusory allegations to deduce the existence of a factual dispute. (Reply, 4-9.)
Accordingly, viewing the evidence submitted in the light most favorable to Plaintiff, the court finds Plaintiff’s submitted evidence does not establish a triable issue with regard to her request for accommodation or her disability because Plaintiff does not demonstrate Defendant’s decision to terminate her employment was based on retaliatory reasons.
As such, summary adjudication is granted with respect to the fourth issue.
G. Issue 5: Failure To Prevent Discrimination,
Retaliation And Harassment Under the FEHA
The eighth cause of action is for
failure to provide an environment free from discrimination and retaliation
under Gov. Code § 12940. (Gov’t Code §
12940(k).) “An actionable claim under
section 12940, subdivision (k) is dependent on a claim of actual discrimination:
‘Employers should not be held liable to employees for failure to take necessary
steps to prevent such conduct, except where the actions took place and were not
prevented.’ [Citation]” (Scotch v. Art Inst. of California (2019) 173 Cal.App.4th 986, 1021.)
It is undisputed that Plaintiff’s fifth cause of action for
failure to prevent discrimination, retaliation, and harassment arises from
Plaintiff’s causes of action for discrimination and retaliation under the FEHA.
As discussed above, Defendant’s motion is granted with respect to Plaintiff’s
discrimination cause of action and retaliation cause of action.
Given that Defendant’s motion is granted with respect to these two causes of action, the court now grants Defendant’s motion with respect to the fifth issue as no triable issue of material fact exists with regard to Defendant’s failure to prevent discrimination or retaliation. Plaintiff has been unable to show any triable issues of fact regarding her ability to perform the duties of her position and any retaliatory reasoning behind Defendant’s decision to terminate her employment.
H. Issue 6: Wrongful Termination In Violation of
Public Policy
Defendant contends that summary adjudication is warranted
with respect to Plaintiff’s cause of action for wrongful termination in
violation of public policy because “Ogletree had a legitimate non-retaliatory
business reason to terminate an employee who was not doing her job.” “Plaintiff
had demonstrated that she was incapable of performing the work of a records
specialist.” (Motion, 24-25.) Plaintiff points to the derivative nature of the
sixth cause of action here, explaining it is completely reliant on the premise
that “defendant violated the FEHA....” (Opp., 25.)
As discussed above, the court has found that no triable
issues of material fact exist with regard to Plaintiff’s causes of action for
retaliation and failure to prevent discrimination, harassment, and retaliation
under the FEHA. As such, the court now grants summary adjudication with regard
to the sixth issue as well.
I. Issue 7: Punitive Damages
“Malice means conduct which is intended by the defendant to
cause injury to the plaintiff or despicable conduct which is carried on by the defendant
with a willful and conscious disregard of the rights or safety of others.”¿
(Civ. Code § 3294(c)(1).)¿ “Oppression’ means despicable conduct that subjects
a person to cruel and unjust hardship in conscious disregard of that person's
rights.”¿ (Civ. Code § 3294(c)(2).)¿ “Fraud means an intentional
misrepresentation, deceit, or concealment of a material fact known to the
defendant with the intention on the part of the defendant of thereby depriving
a person of property or legal rights or otherwise causing injury.”¿ (Civ. Code §
3294(c)(3).)¿¿A¿plaintiff’s “conclusory characterization of defendant’s conduct
as intentional, willful and fraudulent is a patently insufficient statement of
‘oppression, fraud,¿or malice, express or implied,¿within the meaning of
section 3294.”¿ (Brousseau v. Jarrett¿(1977) 73 Cal.App.3d 864.)¿
Defendant contends that summary adjudication is warranted
with respect to Plaintiff’s claim for punitive damages because there is
insufficient evidence that Defendant acted with malice, fraud, or oppression as
defined in Civ. Code § 3294. (Motion, 27.) In opposition, Plaintiff contends
that Defendant has failed to meet its burden of proof as the moving party to
demonstrate why insufficient evidence exists to support a claim for punitive
damages, as the decision makers here “are all high-level management employees
with discretionary authority of a corporation’s business.” (Opposition, 25-26.)
In reply, Defendant asserts the decision makers here “are
not individuals that determine policy for the thousands of employees working in
Ogletree’s 50 offices.” (Reply, 11.) Defendant further contends the managing
shareholder “did not consider Plaintiff’s prior leaves, request for
accommodations [sic], or any other factors related to her health or any
restrictions in making his decision” but rather “had ample evidence to believe
there was a legitimate basis for terminating Plaintiff.” (Id.)
While the court notes the parties dispute MF 135, the court
ultimately recognizes that Defendant has proffered a non-retaliatory reason for
terminating Plaintiff’s employment, and Plaintiff has not provided evidence in
opposition to such a claim. Plaintiff has conceded that she needed additional
assistance to perform the duties of her position. (UMF 132.) While Plaintiff
disputes that she did not “confess” such an admission, it is undisputed that
Plaintiff asked for more assistance when other coworkers were able to manage
their workload. (UMF 134.) Further, while Plaintiff contends “[n]o one ever
told Ms. Thompson that she should be prepared to defend herself at that meeting
with [the managing shareholder],” Plaintiff has failed to provide any
supporting authorities for the contention that Defendant must have done so. (MF
131.) Thus, Plaintiff asks this court to find a triable issue of material fact
existed that Defendant acted with malice or oppression by not maintaining
Plaintiff’s position when Defendant has shown it could not afford to do so.
Plaintiff has not provided any supporting authority for this contention, and
the court cannot find any authority to impose such a standard on
Defendant.
Thus, viewing the evidence submitted in the light most
favorable to Plaintiff, the court grants Defendant’s motion with respect to the
seventh issue. Defendant’s submitted facts and evidence demonstrate that Plaintiff cannot maintain a
claim for punitive damages against Defendant.
Conclusion
Defendant’s motion for summary
judgment is granted. Defendant is to give notice.