Judge Gail Killefer, Case Number: 23STCV03473, Date: 2024-06-24 Tentative Ruling

Judge: Gail Killefer, Case: 23STCV03473, Date: 2024-06-24 Tentative Ruling

Case Number: 23STCV03473 Hearing Date: June 24, 2024 Dept: 37

HEARING DATE: Monday, June 24, 2024

CASE NUMBER: 23STCV03473

CASE NAME: Maria Cano v. Pacific Maritime Association

MOVING PARTY: Defendant Pacific Maritime Association

OPPOSING PARTY: Plaintiff Maria Cano

TRIAL DATE: 13 August 2023

PROOF OF SERVICE: OK

PROCEEDING: Motion for Summary Judgment or Summary Adjudication in the Alternative

OPPOSITION: 8 May 2024

REPLY: 17 May 2024

TENTATIVE: Defendant PMA’s Motion for Summary Judgment is granted. Defendant to give notice.

Background

On February 16, 2023, Maria Cano (“Plaintiff”) filed a Complaint against Pacific Maritime Association (“PMA”) and Does 1 to 50.

The Complaint alleges ten causes of action for:

1) Violation of the California Family Rights Act (“CFRA”) (Gov. Code § 12945.2);

2) Violation of the CFRA - Interference with Exercise of Family Leave Rights;

3) Violation of CFRA – Retaliation;

4) Unlawful Discrimination Based on Disability in Violation of the Fair Employment and Housing Act (“FEHA”);

5) Failure to Prevent Unlawful Discrimination Based Upon Disability in Violation of FEHA;

6) Retaliation in Violation of FEHA;

7) Failure to Accommodate Disability in Violation of FEHA;

8) Failure to Engage in the Interactive Process in Violation of FEHA;

9) Wrongful Termination in Violation of Public Policy; and

10) Unfair Business Practices (Bus. Prof. Code § 17200, et seq.)

On March 8, 2024, Defendant PMA moved for summary judgment or, in the alternative, summary adjudication. Plaintiff opposes the Motion. The matter is now before the court.

Request for Judicial Notice

The court may take judicial notice of “official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States,” “[r]ecords of (1) any court of this state or (2) any court of record of the United States or of any state of the United States,” and “[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (Evid. Code, § 452(c), (d), and (h).) “Taking judicial notice of a document is not the same as accepting the truth of its contents or accepting a particular interpretation of its meaning.” (Joslin v. H.A.S. Ins. Brokerage (1986) 184 Cal.App.3d 369, 374.)

Defendant PMA requests judicial notice of the following:

1) Exhibit A: Order granting summary judgment in favor of PMA, Hughes v. Pacific Maritime Association, Alameda County Superior Court, Case No. RG17873789 (July 16, 2019

2) Exhibit B: Order granting summary judgment in favor of PMA, George-Tay v. Marine Termianls Crop., et al., Los Angeles County Superior Court, Case No. BC6592915 (July 20, 2018), and written rules regarding same (July 23, 2018)

3) Exhibit C: Order granting summary judgment in favor of PMA, Good v. Pacific Maritime Association, et al., Los Angeles County Superior Court, Case No. BC597845 (February 14, 2017)

4) Exhibit D: Order granting PMA’s motion for attorney’s fees and costs, Good v. Pacific Maritime Association, et al., Los Angeles County Superior Court, Case No. BC597845 (May 22, 2017)

5) Exhibit E: Opinion issued by the California Workers’ Compensation Appeals Board, Svorinich, et al. v. Pacific Maritime Association, et al., Case No. ADJ10191716 (November 30, 2017)

6) Exhibit F: Opinion and Order denying petition for reconsideration issued by the California Workers’ Compensation Appeals Board, Svorinich, et al. v. Pacific Maritime Association, et al., Case No. ADJ10191716 (February 5, 2018)

7) Exhibit G: Ruling by the U.S. Department of Labor, Benefits Review Board, D.S. v. International Transportation Services, et al., BRB No. 08- 0522 (January 14, 2009)

8) Exhibit H: Memorandum from Staff Counsel for the Department of Industrial Relations, Division of Occupational Safety and Health, regarding Pacific Maritime Association (October 20, 1999)

Defendant PMA’s request for judicial notice of Exhibits A to D is denied because PMA seeks judicial notice of trial court ruling in other cases. Judicial notice is an evidentiary procedure that allows the court to establish certain indisputable facts. The unpublished ruling in Exhibits A to D are not submitted as evidence but as precedent. Such citation is beyond the scope of judicial notice and is legally improper. (See Budrow v. Dave & Buster's of California, Inc. (2009) 171 Cal.App.4th 875, 884–885 [“A written trial court ruling in another case has no precedential value in this court”].)

Similarly, cases by the Workers’ Compensation Appeals Board are citable authority but only to the extent they interpret and apply workers’ compensation laws by the Board. (See Travelers Casualty & Surety Co. v. Workers' Comp. Appeals Bd. (2016) 246 Cal.App.4th 1101, 1107, fn. 5; 3 Stonedeggs, Inc. v. Workers' Compensation Appeals Board (2024) 101 Cal.App.5th 1136.) PMA’s moving papers fail to show that Exhibits E and F are relevant. Accordingly, judicial notice of Exhibits E and F is denied. (See American Cemwood Corp. v. American Home Assurance Co. (2001) 87 Cal.App.4th 431, 441, fn. 7 [“Although a court may judicially notice a variety of matters (Evid. Code, §¿450 et seq.), only relevant material may be noticed.”] [italics original].)

Defendant PMA’s request for judicial notice of Exhibits G and H is granted.

EVIDENTIARY OBJECTIONS

The parties have filed no evidentiary objections. However, Defendant PMA’s “Reply Separate Statement,” filed on May 15, 2024, is stricken from the record and disregarded as the Rules of Court do not provide for a Reply Separate Statement. (See Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 252.)

MOTION FOR SUMMARY JUDGMENT/SUMMARY ADJUDICATION

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(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).)¿¿¿¿¿¿¿¿¿¿

¿¿¿¿¿

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.)¿¿¿¿¿¿¿¿¿

¿¿¿¿¿

“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.)¿

III. Discussion

A. Factual Summary

The following facts are undisputed unless supported by citation to the record. Plaintiff began working as a longshoreman in 2004 and became a registered “Class B” longshoremen in May 2021, until she was deregistered on November 11, 2021. (Undisputed Material Fact (“UMF”) Nos. 29, 30, 86.) The effect of deregistration is that Plaintiff cannot pick up jobs at the dispatch hall and work for a PMA member employer. (Plaintiff’s Material Facts (“PMF”) No. 14.)

PMA is a California non-profit mutual benefit corporation whose members consist of for-profit employers who “employ longshore workers, marine clerks, and other categories of dockworkers to load and unload cargo from seagoing vessels at waterfront facilities located at ports in California, Oregon, and Washington.” (UMF Nos. 1, 2.) In other words, PMA “is a multi-employer collective-bargaining agent and its primary purpose is to negotiate, enter into, and administer, on behalf of its members, collective-bargaining agreements with the International Longshore and Warehouse Union (“ILWU”) which represents longshore workers at the ports of Los Angeles and Long Beach.” (UMF No. 4.)

The ILWU-PMA Pacific Coast Longshore Contract Document (“PCLCD”) is the collective bargaining agreement (“CBA”) that governs the terms and conditions of employment for longshoremen. (UMF Nos. 10, 18.) The PCLCD states:

THIS CONTRACT DOCUMENT, dated July 1, 2019, is by and between Pacific Maritime Association (hereinafter called “the Association”), on behalf of its members (hereinafter designated as “the Employers” or the “individual employer”), and the International Longshore and Warehouse Union (hereinafter designated as “the Union”), on behalf of itself and each and all of its longshore locals in California, Oregon and Washington (hereinafter designated as “longshore locals”) and all employees performing work under the scope, terms and conditions of this Contract Document. This Contract Document is a part of the ILWU-PMA Pacific Coast Longshore and Clerks’ Agreement.

(Bartelson Decl. ¶ 10, Ex. B.)

Pursuant to the Memorandum of Coastwise Rules Covering Registration/Deregistration of Longshoremen and Clerks (the “Memorandum”), Class B longshoremen are required to be available to work “20 days or 20 nights for a 4 week payroll month, or 25 days or 25 nights for a 5 week period payroll month, ” also known as the 70% Availability Rule. (UMF No. 51.) Paid vacations, holidays, and medical leave are counted towards the 70% availability rule. (UMF Nos. 53, 54.) Medical notes are submitted to the Joint Port Labor Relations Committee (“JPLRC”) at SOCALDOCUMENTS@PMANET.ORG. (UMF Nos. 53-56.) Under the PCLCD, the JPLRC “shall be comprised of 3 or more representatives designated by the Union and 3 or more representatives designated by the Employer” with each having equal vote. (Bartelson Decl. Ex. B at p. 90, § 17.11.) Pursuant to the PCLCD: “A leave of absence for a registered longshoremen can be granted only by action of the Joint Port Labor Relations Committee (“JPLRC”).”(Id. at p. 162, § 41.)

i. September 30, 2021, Hearing Before the JPLRC

There is no dispute that during the August 2021 payroll month, Plaintiff failed to meet the 70% availability requirement and was notified by the JPLRC to appear for a hearing on September 30, 2021. (UMF No. 60.) The notice states “All medical documentation explaining your non-availability for the August 2021 payroll month must be submitted to the Union and Pacific Maritime Association by September 25, 2021, or it will be considered late and will not be accepted by the Committee.” (DeLosh Decl. Ex. B.)

There is also no dispute that on August 24, 2021, Plaintiff submitted “two copies of doctor’s note dated July 28, 2021, from Srinivas Yanamadala, MD” stating that Plaintiff had been under Dr. Yanamada’s care from July 28, 2021, to August 8, 2021 (the “Note”). (UMF Nos. 61, 62.) Defendant PMA alleges that on September 22, 2021, Plaintiff submitted the same doctor’s Note again causing Ashley DeLosh (“DeLosh”), PMA’s Senior Labor Relations Representative, to question its authenticity. (DeLosh Decl., ¶¶ 10, 12, Ex. C.) Plaintiff does not deny that a copy of the Note was submitted but asserts her daughter, Lina Cano, emailed the note without Plaintiff seeing the submission. (Plaintiff’s Compendium of Evidence (“PCOE”) Ex. D [Lina Cano Depo. at p. 38:7-21].) Plaintiff asserts that her daughter’s decision to alter the Note and send it to PMA was not done at her direction. (Id.)

DeLosh noted that Dr. Yanamadala’s Note appeared to have been whited out, including the date, and that part of the Note that stated: “‘she need [sic] follow up 8/19/21’ was grammatically incorrect and awkward.” (UMF Nos. 64, 65.) DeLosh’s efforts to authenticate the Note led to DeLosh discovering that the address provided on the note was more than eight years old and that Dr. Yanamadala was currently practicing at a different office than the one listed on the Note. (UMF Nos. 67-70.)

ii. The October 7, 2021, Employer Complaint

DeLosh found the Note to be fraudulent and on October 7, 2021, filed a complaint on behalf of the Employers and against the Plaintiff for violating the PCLCD, specifically Sections 17.61, 17.81, 17.82, and 18 of the PCLCD and Coastwise Rules 9.23, 9.25, and 9.254, which allows employers to file a complaint against the employee for disregard of employer’s interest and rules pertaining to deregistration of Longshore worker upon misconduct. (Bartelson Decl. Ex. B [PCLCD Contract], DeLosh Decl. ¶ 15, Ex. F [Employer Complaint EC-1334-2021].) The employer complaint is entitled “EMPLOYER COMPLAINT” and under “Name of Employer” it states: “PMA on Behalf of the Employers.” (DeLosh Decl. ¶ 15, Ex. F; PCOE Ex. B [DeLosh Depo. at pp. 93-12-95:7].) The position of PMA and/or the employers was that Plaintiff had violated the PCLCD by submitting “falsified medical documentation in an effort to excuse herself from the 70% availability requirement.” (DeLosh Decl. ¶ 15, Ex. F.)

As a result of the Employer Complaint, Plaintiff was placed on the No-Dispatch list and was noticed to appear for a meeting on October 19, 2021, before the JPLRC. (UMF Nos. 74, 75.) DeLosh was present at the meeting, where Plaintiff explained that Dr. Yanamadala’s Note was mistakenly submitted by her daughter. (DeLosh Decl. ¶ 17, Ex. I [Meeting Minutes].) Present at the meeting were 8 individuals, including DeLosh, for the employers and four individuals on behalf of the union, ILWU Local 13 (“Local 13”). (DeLosh Decl. ¶ 17, Ex. I.)

At the meeting, Plaintiff provided two additional notes from Kaiser Permanente and Optum excusing her from work from September 3, 2021, to September 5, 2021, and August 28, 2021, to October 15, 2021. (UMF Nos. 79, 80.) The JPLRC found:

Upon review of the two additional notes provided by Ms. Cano, the Employers noted the dates did not align with the submission of the falsified note on August 24, 2021. The employer argued the date on the notes provided in the LRC were not printed until September 3, 2021, and September 28, 2021, which is after the forged note was submitted, and do not actually cover the time period at issue for 70% purposes and would not excuse her from her obligation.

(DeLosh Decl. ¶ 17, Ex. I at p. 9.) The decision was approved by PMA and Local 13. (Id.)

Plaintiff does not dispute that she did not receive treatment from Dr. Yanamadala in 2021 and that the Note was altered. (UMF No. 77.) The JPLRC referred the matter to a Special LRC Meeting for further discussion. (DeLosh Decl. ¶ 18, Ex. I.)

On November 11, 2021, the JPLRC held a meeting to determine if Plaintiff had violated the PCLCD/Coastwise Rules. (DeLosh Decl., Ex. J [Meeting Minutes].) Present at the meeting were three individuals for employers, including DeLosh, and one representative from Local 13. (Id.) The JPLRC concluded the following:

Ms. Maria Cano #136882 appeared before the Committee as cited and admitted to submitting falsified documentation.

[ . . . ]

Ms. Cano presented the Committee with a replacement note she requested from her physician. However, the Employers noted the document provided appeared to be a new note from a different physician that was dated October 26, 2021, and was not back dated to a previously issued date nor did it replace the note provided to PMA.

The Employers also asked Ms. Cano to explain why the falsified doctor’s note was submitted twice, the Employers noted that it was submitted to excuse her absence for the month of August 2021, in addition to the month of September 2021. Ms. Cano claimed she was not aware the fraudulent note had been submitted twice.

The Employers confirmed the fabricated note was from a practitioner's office that has not operated out of the location referenced on the note for eight years, and the address along with the phone number are no longer in service. The physician's billing department also confirmed that Ms. Cano was not billed for any services correlating with the date on the note.

Following significant discussion, the Committee agreed that Ms. Maria Cano, #136882, is guilty and that she is deregistered in accordance with Rules 9.23 and 9.25 of the Coastwise Rules Covering Registration and Deregistration of Longshoremen and Clerks, effective November 11, 2021.

(DeLosh Decl., Ex. J [Meeting Minutes].) The decision was approved by PMA and Local 13. (Id.) The rules for deregistration were implemented by the JPLRC, as reflected in the Memorandum. (Bartelson Decl. Ex. C.)

DeLosh asserts that the focus of the Employer Complaint was not whether Plaintiff’s medical documentation would excuse her from the 70% Availability Rule but whether the Note was falsified. (PCOE Ex. B [DeLosh Depo. at pp. 123:19-124:1].) Plaintiff asserts that on November 11, 2021, she submitted a new doctor’s note from Dr. Foley that should have been considered in excusing Plaintiff from the 70% Availability Requirement. (PCOE Ex. C [Maria Cano Depo. pp. 81:18-82:2].) DeLosh asserts that JPLRC could find that Dr. Foley’s Note bearing the date of “10/26/21” could not have existed in August 2021 and that Plaintiff’s explanation was not credible. (DeLosh Decl. ¶ 19, Ex. L.)

More importantly, DeLosh maintains that while the November 11, 2021, note “would have been consideration for availability [], the complaint was not about availability. It was about the falsified note that was submitted in an attempt to excuse her availability for that time period.” (PCOE Ex. B [DeLosh Depo. at p. 126:4-8; see also pp. 123:19-124:1]; DeLosh Decl. ¶ 19, Ex. L.) In other words, the JPLRC deregistered Plaintiff as a longshoreman not because she failed to meet the 70% availability requirement but because she submitted the false Note in an effort to meet the availability requirement. (DeLosh Decl., Ex. J, I.)

After Plaintiff was deregistered, Plaintiff reached out to Local 13 for assistance with reinstatement. (UMF Nos. 87, 88.) Plaintiff also filed a charge with the National Labor Relations Board (“NLRB”) against Local 13, but the charge was dismissed. (UMF No. 89.) Plaintiff filed this action on February 16, 2023, against PMA.

Plaintiff asserts that PMA is her employer and is liable for violations of CFRA, the FEHA, and the UCL. Defendant PMA now moves for summary judgment or, in the alternative, summary adjudication.

B. PMA’s Potential Liability as Joint Employer

PMA asserts that its’ function is limited to being a multi-employer collective-bargaining agent. (UMF No. 4.) “Since 1949, West Coast port operators have bargained with the ILWU through the Pacific Maritime Association, a ‘multi-employer bargaining representative ... with the primary purpose of negotiating, executing, and administering collective bargaining agreements.’” (Everport Terminal Services, Inc. v. National Labor Relations Board (D.C. Cir. 2022) 47 F.4th 782, 785 citing PMA v. NLRB (D.C. Cir. 2020) 967 F.3d 878, 881.) PMA asserts that it was not Plaintiff’s employer, and its role was limited to being a centralized payroll agent for its employer members. (Bartelson Decl. ¶ 7.)

In McCoy v. Pacific Maritime Assn. (2013) 216 Cal. App. 4^th 283, , the appellate court found that the plaintiff’s “evidence is insufficient to establish PMA was her employer as that term is used in FEHA” because another defendant, “Yusen [] paid her salary, owned the equipment she worked on, controlled the location where she worked and where the retaliation took place, was responsible for her training, had the right to promote or discharge her and was the only party to supervise her work.” (216 Cal.App.4th 283, 302.) The McCoy Court relied on the decision in Anderson v. Pacific Maritime Ass'n (9th Cir. 2003) 336 F.3d 924 (Anderson), where the Ninth Circuit found that PMA’s member-employer companies, rather than PMA, were the employer of those working on the ports and were the ones responsible for the workplace discrimination. (Id.)

In Anderson, a group of longshoremen workers alleged that they were subject to a racially hostile work environment in violation of Title VII of the Civil Rights Act of 1964. (Anderson, supra, 336 F.3d at p. 924.) The sole defendant, PMA asserted it was not any employer of any of the plaintiffs. (Id.) The Ninth Circuit found that PMA was not the plaintiffs’ employer because it was not the entity performing the discriminatory act. (Id. at p.931.)

The Anderson Court looked at the collective bargaining agreement (“CBA”), which governed all of the parties' relationships, and found that under the CBA, the responsibility for discipline, safety, and supervision was placed on “the member-employers and their walking bosses and foremen—but not PMA[.]” (Id. at p. 926.) “Although PMA has the general responsibility for ensuring that member-employers comply with the terms of the CBA, PMA has no direct role in this formal procedure for resolving discrimination complaints.” (Id.) “Those tasks, under the plain terms of the CBA, are left to managers employed by the member-employers and the Joint Committee appointed by the member-employers and the Union.” (Id. at p. 927.)

The Anderson Court declined to find that PMA was liable under Title VII as an indirect employer because “PMA is not interfering in any sense with the employees' relationship with their employers because it was those employers, not PMA, that allowed the allegedly hostile work environment at the sites controlled by the member-employers.” (Id. at p. 931.) PMA “was not empowered to fire or even discipline longshoremen for harassment . . . and was not empowered to conduct investigations and to implement new work site rules to curb harassment,” such that the “imposition of indirect-employer liability under Title VII [would be] inappropriate.” (Id. at pp. 931- 932.) The Ninth Circuit reasoned that the “obvious defendants” were the plaintiffs' employers and the union. (Id. at p. 932.)

The court finds the reasoning in Anderson for not extending employer liability to an entity not directly responsible for the alleged work violations conforms with the California Supreme Court’s holding in Raines v. U.S. Healthworks Medical Group (2023) 15 Cal.5th 268:

We conclude that an employer's business entity agents can be held directly liable under the FEHA for employment discrimination in appropriate circumstances when the business-entity agent has at least five employees and carries out FEHA-regulated activities on behalf of an employer.

(Id. at p. 273 [italics added].)

In extending FEHA liability to entity agents of the employer, the California Supreme Court looked at the “agent-inclusive language from the National Labor Relations Act (NLRA)” from which FEHA borrowed the definition of “employer.” (Raines, supra, 15 Cal.5th at p. 268.)

Looking at NLRB decisions, the Court noted that a business entity agent can be found directly liable as an employer for violations of the NLRA “only when the agent performed some NLRA-regulated activity on behalf of the employer and violated the NLRA in performing that activity.” (Id. at p. 288, fn. 10.) The California Supreme Court cited Hudson Pulp & Paper Corp. (1958) 121 NLRB 1446 wherein the NLRB found a business entity was acting as an agent of the employer under the NLRA with respect to “the hiring, discharging, and supervision of its driver employees” such that it could be held liable for NLRA violations committed in that capacity. (Id. at pp. 1450-1451.) Similarly, in Ass'n of Motion Picture Producers, Inc. (1949) 85 NLRB 902, the Association of Motion Pictures Producers, Inc. was found liable for violations of the NLRA because it acted as an “as agent of its members in negotiating labor contracts [.]” Likewise in Pacific Maritime Association v. National Labor Relations Board (D.C. Cir. 2020) 967 F.3d 878, the NLRB found that PMA and Long Beach Pacific Terminal were liable as employers for violations of the NLRA. (Id. at p. 881.)

In extending FEHA liability to business entities of the employer, the California Supreme Court was also guided by federal courts “‘construing federal antidiscrimination laws, including title VII of the federal Civil Rights Act of 1964.’ ” (Raines, supra, 15 Cal.5th at p. 282.) “These cases establish that an employer's agent can, under certain circumstances, appropriately bear direct liability under the federal antidiscrimination laws.” (Id. at p. 288.) “[F]ederal courts have generally focused on whether the agent exercised an administrative function traditionally exercised by the employer” such that the business entity is “responsible for the civil rights violation at issue.” (Id. at p. 287.) Accordingly, the Raines Court recognized that “as a necessary minimum that, consistent with the FEHA's language and purpose, a business-entity agent can bear direct FEHA liability only when it carries out FEHA-regulated activities on behalf of an employer.” (Id. at p. 288 [italics added].)

In deciding whether a business entity carried out FEHA-regulated activities on behalf of the employer for which the business entity can be held directly liable as the employer’s agent, courts should look at the contract between the business entity and the employer. “Finally, the role of a business-entity agent is often formally defined by the terms of its contract with the employer. Therefore, its fault, if any, for the employer's actions can be easily determined.” (Raines, supra, 15 Cal.5th at p. 278.) Here, the court will look to the PCLCD and the Memorandum to see if PMA’s member employers delegated CFRA and FEHA duties to the PMA and if there are facts to show that PMA directly interfered with Plaintiff’s CFRA and FEHA rights such that it is directly responsible for those violations.

C. First, Second, and Third Causes of Action: Violation of CFRA

California Family Rights Act (“CFRA”) makes it unlawful for an employer “to interfere with, restrain, or deny the exercise of, or the attempt to exercise, any right” provided by CFRA. (Gov. Code, § 12945.2(q).) “A CFRA interference claim consists of the following elements: (1) the employee's entitlement to CFRA leave rights; and (2) the employer's interference with or denial of those rights.” (Moore v. Regents of University of California (2016) 248 Cal.App.4th 216, 250.) “Any violation of CFRA or these implementing regulations constitutes interfering with, restraining, or denying the exercise of rights provided by CFRA.” (Cal. Code Regs., tit. 2, § 11094(a).)

The first, second, and third causes of action allege that PMA violated CFRA by “refusing to reinstate Plaintiff to her prior position or a comparable position, and by terminating her employment after she requested eligible CFRA leave.” (Compl., ¶ 21.) “[R]efusing to grant Plaintiff CFRA leave and terminating her employment after she requested CFRA leave.” (Compl., ¶ 29.) “Defendants retaliated against Plaintiff because she exercised her rights under the CFRA by, inter alia, terminating Plaintiff’s employment after she requested CFRA leave.” (Compl., ¶ 37.)

Defendant PMA asserts that Plaintiff’s CFRA-based causes of action fail because PMA did not have an employer relationship with Plaintiff. Under Section 4 of the PCLCD, leave of absence could only be granted by the JPLRC. (Bartelson Decl. Ex. B at p. 162, § 4.) Medical Notes were submitted to the JPLRC at SOCALDOCUMENTS@PMANET.ORG. (UMF Nos. 53-56.) While it is undisputed that DeLosh is an employee of PMA, the parties also do not dispute that DeLosh is not a director, officer, or managing agent of PMA. (UMF No. 117; PMF No. 10.) Accordingly, the approval of medical leave is a task that is exclusively delegated to the JPLRC under the PCLCD.

Defendant PMA also provides evidence that Plaintiff did take time off to care for her mother who had surgery on August 25, 2021, until she passed away on September 23, 2021. (PMF Nos. 55, 56; Peterson Decl. Ex. A [Maria Cano Depo. at p. 104:3-12].) Plaintiff does dispute that she did not need prior approval from a committee or supervisor to take time off to care for her mother and that she did not speak to anyone about taking time off. (UMF Nos. 38, 39.) Defendant PMA further asserts that Plaintiff was not entitled to CFRA leave because she did not work the requisite 1250 hours needed to qualify for CFRA leave. (Bartelson Decl. ¶ 34.) To qualify for CFRA leave, an employee must have worked “at least 1,250 hours of service … during the previous 12-month period.” (Gov. Code § 12945.2(a).) Defendant PMA asserts Plaintiff’s attendance record shows she only worked 650 hours between July 1, 2020, to July 29, 2021, and worked a total of 98.5 hours in August 2021. (Bartelson Decl. ¶ 34.) Therefore, Plaintiff was not entitled to CFRA leave.

Based on the above, the court finds that PMA has met its initial burden of showing there are no triable issues of material fact relating to the first three causes of action. The burden shifts to Plaintiff to show that triable issues of material fact exist that preclude summary adjudication.

“[W]here the parties have had sufficient opportunity adequately to develop their factual cases through discovery and the defendant has made a sufficient showing to establish a prima facie case in his or her favor, in order to avert summary judgment the plaintiff must produce substantial responsive evidence sufficient to establish a triable issue of material fact on the merits of the defendant's showing.” (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 162–163.) Plaintiff’s opposition fails to present evidence that under the PCLCD, PMA had the authority to grant or deny CFRA leave to employees. Plaintiff fails to point to a provision in PMA’s Amended and Restated Bylaws that shows PMA controlled and approved when an employee could take leave from work such that PMA could be held liable for violations of the CFRA. (Bartelson Decl. Ex. A.)

While Plaintiff presents evidence that time spent in the hall did not count towards the 1250-hour requirement, Plaintiff does not allege that the time spent in the dispatch hall if counted would meet the 1250-hour requirement. (PCOE Ex. B [DeLosh Depo. at pp. 63:9 - 67:24].) More importantly, Plaintiff fails to present evidence that accounting for the time spent in the dispatch hall, Plaintiff did meet the requisite 1250 hours needed to qualify for CFRA leave. Moreover, even if Plaintiff did qualify for CFRA leave, Plaintiff fails to present evidence she requested CFRA leave and was denied leave by PMA.

Furthermore, Plaintiff fails to present evidence that the failure to meet the 70% Availability Rule was the equivalent of being denied CFRA leave and being retaliated against for taking medical leave under CFRA. Specifically, Plaintiff fails to provide evidence that her deregistration was due to taking medical leave under CFRA rather than for submitting the false Note. (DeLosh Decl. Ex. I [October 19, 2021, Meeting Minutes], Ex. J [November 11, 2021, Meeting Minutes].) In other words, Plaintiff presents no evidence that the JPLRC’s decision to deregister Plaintiff was pretextual, lacked merit, and was done in retaliation to Plaintiff taking medical leave.

Based on the above, the court grants summary adjudication as to the first, second, and third causes of action.

D. Fourth through Ninth Causes of Action – (4)Unlawful Discrimination Based on Disability in Violation of FEHA, (5) Failure to Prevent Unlawful Discrimination in Violation in Violation of FEHA, (6) Retaliation in Violation of FEHA, (7) Failure to accommodate Disability in Violation of FEHA, (8) Failure to Engage in the Interactive Process in Violation of FEHA, and (9) Wrongful Termination in Violation of Public Policies

i. PMA’s Employer Status

Defendant PMA asserts that Plaintiff’s FEHA causes of action fail because it was not Plaintiff’s employer. “An assessment of whether such an employment relationship exists requires consideration of the totality of the circumstances. [Citation] Factors to be considered are the payment of salary or other benefits, the ownership of the equipment used by the employee, the location where the relevant work is performed, the responsibility of the employer to train the employee, the authority to promote or discharge the employee, and the power to determine the schedule, assignment, and amount of compensation earned by the employee.” (McCoy, supra, 216 Cal.App.4th at p. 301 citing Vernon v. State of California (2004) 116 Cal.App.4th 114, 123.)

PMA asserts that its role was to serve as the centralized payroll agent for its member companies, including collecting timecard information and issuing paychecks. (Bartelson Decl., ¶ 8.) While PMA administers the paycheck and keeps track of the hours worked, the PCLCD sets out the wage rates for longshoremen. (Bartelson Decl. Ex. B at p. 30, § 4.) PMA asserts that its member companies decide how each port operates, and assign and supervise the day-to-day tasks for longshoremen. (Bartleson Decl. ¶ 15.) PMA also does not own, lease, operate, or control any of the marine terminals where Plaintiff worked. (UMF 12.) Under the PCLCD, the JPLRC was responsible for maintaining and operating the dispatch hall and for investigating and adjudicating all grievances. (Bartelson Decl. Ex. B at p. 90, § 17.) Moreover, the decision to deregister Plaintiff was made by the JPLRC pursuant to the terms set out in the Memorandum. (Bartelson Decl. Ex. C; (DeLosh Decl., Ex. J [November 11, 2021, Meeting Minutes].) Accordingly, PMA has met its initial burden of showing it was not Plaintiff’s employer under the factors outlined in McCoy and Vernon.

Plaintiff’s opposition points out that PMA issues the W-2 statement to its member companies and does not classify dock workers as independent contractors. (PCOE Ex. A [Bartelson Depo. at p. 26:8-17.) Plaintiff provides evidence that Plaintiff’s employee number is managed and maintained by PMA’s system as the de facto recording secretary for the JPLRC, but the employee number itself is created by the JPLRC. (Id. at pp. 65:2-22, 79: 2-6.).) Plaintiff also provides evidence that while the Memorandum imposes the 70% availability requirement, PMA is administratively tasked with pulling the payroll data for each period to see if the longshoremen meet the requirement. (PCOE Ex. B [DeLosh Depo. at p. 43:5-23].) Employees unable to attend work are required to provide medical documentation to an email administered to PMA so that they can explain their absence and the documents are placed on the employee’s profile for DeLosh to review. (Id. at pp. 43:5-45:11.)

The evidence cited above shows that PMA had administrative duties in managing payroll and tracking leave for workers. However, Plaintiff fails to show that under the factors outlined in McCoy and Vernon, PMA was Plaintiff’s de facto employer because it was PMA’s member-employers who managed and controlled Plaintiff’s day-to-day working conditions as set out in the PCLCD.

Plaintiff fails to show that under the PCLCD PMA had the authority to manage Plaintiff’s day-to-day working activities or that PMA exceeded its duties under the PCLCD such it should be held liable as an employer. Plaintiff asserts that because DeLosh was an employee of PMA and filled out the Employer Complaint, PMA exercised its authority in deregistering Plaintiff. (PMF Nos. 10, 11.) DeLosh does not deny that she works for PMA but states that she sits on the JPLRC for the Los Angeles and Long Beach Ports. (DeLosh Decl. ¶¶ 1, 2.) Under Section 17 of the PCLCD, all grievances, including claims of discrimination are to be adjudicated by the JPLRC. (Bartelson Decl. Ex. B, pp. 90, 96.) Moreover, the rules of deregistration of longshoremen are set forth in the Memorandum and are enforced by the JPLRC, not PMA. (Bartelson Decl. Ex. C.) Plaintiff fails to cite evidence or case law to show that DeLosh’s decision to file the Employer Complaint makes PMA an employer or gives PMA the ability to discipline and deregister longshoremen. Even if PMA filled out an Employer Complaint, Plaintiff fails to show that the adjudication of the disciplinary proceeding was something PMA managed or controlled rather than the JPLRC.

The Meeting Minutes for the October 19, 2021, and November 11, 2021, hearings reflect that JPLRC members, meaning other employer members and Local 13, were the adjudicators at the hearing. (DeLosh Decl. Ex. I, J.) Plaintiff fails to show that during adjudication, the JPLRC failed to follow procedures under the Memorandum or that the JPLRC’s findings were without merit. Specifically, Plaintiff does not challenge the fact that DeLosh had good reason to question the authenticity of the Note. (UMF Nos. 63-65.) More importantly, Plaintiff fails to show that PMA, rather than the JPLRC, controlled the October 19, 2021, and November 11, 2021, hearings and made the ultimate decision to deregister Plaintiff.

Based on the above, the fact that DeLosh filed an Employer Complaint and participated in the October 19, 2021, and November 11, 2021, hearings as a member of the JPLRC are insufficient to raise triable issues of fact or show that PMA was Plaintiff’s employer as a matter of law.

ii. Failure to Show Causation and Discriminatory Animus

To establish a prima facie case for disability discrimination, the plaintiff must show that (1) the employee suffered from a disability, (2) the employee was otherwise qualified to do the job with or without reasonable accommodation, and (3) the employee was subjected to an adverse employment action because of the disability. (See Higgins-Williams v. Sutter Medical Foundation (2015) 237 Cal.App.4th 78, 84.) A cause of action for failure to prevent discrimination includes the following elements: (1) actionable discrimination or harassment by employees or non-employees; (2) defendant’s legal duty of care toward plaintiff (defendant is plaintiff’s employer); (3) breach of duty (failure to take all reasonable steps necessary to prevent discrimination and harassment from occurring); (4) legal causation; and (5) damages to plaintiff. (See Trujillo v. North County Transit District (1998) 63 Cal.App.4th 280, 287, 289.)

To establish a prima facie case of retaliation, a plaintiff must show the following: 1) the plaintiff engaged in a protected activity; 2) the plaintiff was thereafter subjected to adverse employment action by his employer, and 3) there was a causal link between the two. (Addy v. Bliss & Glennon (1996) 44 Cal. App. 4th 205, 217 [affirming summary judgment on a retaliation claim because the plaintiff did not rebut the defendant’s evidence that it had legitimate, nondiscriminatory business reasons and thus, there was no causal link between the defendant’s adverse employment actions and the plaintiff’s filing of a discrimination charge].) The elements of a claim for failure to provide reasonable accommodation of a disability are (1) the plaintiff had a disability within the meaning of the Fair Employment and Housing Act (FEHA), (2) the plaintiff is qualified to perform the essential functions of the positions, and (3) the employer failed to reasonably accommodate the plaintiff’s disability.¿(Hernandez v. Rancho Santiago Community College District (2018) 22 Cal.App.5th 1187, 1193-1194.)

Under FEHA, an employer is liable if they “fail to engage in a timely, good faith, interactive process with the employee or applicant to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee or applicant with a known physical or mental disability or known medical condition.” (Gov. Code, § 12940(n).) “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.” (Yau v. Allen (2014) 229 Cal.App.4th 144, 154.)

In the alternative, Defendant PMA asserts that even if it were Plaintiff’s employer, Plaintiff fails to show that her taking medical leave proximately resulted in her deregistration. The October 19, 2021, and November 11, 2021, Meeting Minutes reflect that the issue decided by the JPLRC was not whether Plaintiff met the 70% Availability Rule or whether Plaintiff had a disability that required an accommodation. Instead, the issue decided by the JPLRC was whether Plaintiff had submitted a falsified note on August 24, 2021. (DeLosh Decl. Ex. I [October 19, 2021, Meeting Minutes], Ex. J [November 11, 2021, Meeting Minutes].) The Kaiser and Optum notes were dated after the submission of the false Note and could not have existed at the time the Note was submitted on August 24, 2021. (DeLosh Decl. ¶ 18, Ex. H; UMF No. 81.) The Note from Dr. Foley was also created on “10/26/21” after August 24, 2021, meaning Dr. Foley’s Note did not exist at the time the false Note was submitted. (DeLosh Decl. ¶ 19, Ex. L.)

Therefore, the JPLRC has good cause to find that Plaintiff submitted a false note and that such conduct violated Rules 9.23 and 9.25 of the Memorandum. (DeLosh Decl., Ex. J.) Plaintiff’s opposition fails to present any evidence to show that JPLRC’s decision to deregister Plaintiff was motivated by a discriminatory animus.

Accordingly, the court grants summary adjudication as to the fourth through ninth causes of action.

E. Tenth Cause of Action – Unfair Business Practices

Business and Professions Code § 17200 (“UCL”) prohibits “any unlawful, unfair or fraudulent business act or practice.” (Bus. & Prof. Code, § 17200; see Clark v. Superior Court (2010) 50 Cal.4th 605, 610.) To plead this statutory claim, the pleadings must state with reasonable particularity the facts supporting the statutory elements of the violation. (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 619.)

“An unlawful business practice or act is an act or practice, committed pursuant to business activity, that is at the same time forbidden by law.” (Klein v. Earth Elements, Inc. (1997) 59 Cal.App.4th 965, 969.) “A business practice is unfair within the meaning of the UCL if it violates established public policy or if it is immoral, unethical, oppressive or unscrupulous and causes injury to consumers which outweighs its benefits.” (McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1473.) Lastly, a fraudulent business practice claim under section 17200 “is not based upon proof of the common law tort of deceit or deception, but is instead premised on whether the public is likely to be deceived.” (Pastoria v. Nationwide Ins. (2003) 112 Cal.App.4th 1490, 1499.)

Defendant PMA asserts that Plaintiff’s tenth cause of action is derivative of Plaintiff’s CFRA and FEHA causes of action and because those claims fail, so does the UCL claim. Plaintiff does not dispute that her UCL claims are premised on her CFRA and FEHA claims. As summary adjudication has been granted as to those claims, the court also grants summary adjudication as to tenth cause of action.

F. Summary Adjudication of Punitive Damages

“[S]ummary judgment “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.’ [Citation].” (Spinks v. Equity Residential Briarwood Apartments (2009) 171 Cal.App.4th 1004, 1053.)

As the court grants summary adjudication as to Plaintiff’s first through tenth causes of action, the court also grants summary adjudication as to Plaintiff’s claim for punitive damages.

The court grants Defendant PMA’s Motion for summary judgment.

Conclusion

The court grants Defendant PMA’s Motion for Summary Judgment. Defendant to give notice.