Judge Holly J. Fujie, Case Number: 23STCV21084, Date: 2025-03-07 Tentative Ruling

This action arises out of an employment relationship. Plaintiff’s second amended complaint (the “SAC”) alleges: (1) race discrimination in violation of the Fair Employment and Housing Act (“FEHA”); (2) harassment on the basis of race in violation of FEHA; (3) religious discrimination in violation of FEHA; (4) retaliation in violation of FEHA; (5) failure to prevent race discrimination, harassment, and retaliation in violation of FEHA; and (6) wrongful termination in violation of public policy.

On December 16, 2024, Defendant filed the instant motion for summary judgment, or in the alternative, summary adjudication (the “Motion”). On February 19, 2025, Plaintiff filed an opposition (the “Opposition”). On February 24, 2025, Defendant filed a reply (the “Reply”).

In granting or denying a motion for summary judgment or summary adjudication, the court need rule only on those objections to evidence that it deems material to its disposition of the motion. (Code Civil Procedure (“CCP”), § 437c, subd. (q).)

The remaining objections are not ruled on as they are not material to disposition of this Motion.

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 for trial or that the moving party is entitled to a judgment as a matter of law. (CCP, § 437c, subd. (c).)

The moving party bears the initial burden of production to make a prima facie showing that no triable issue of material fact exists. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) To meet this burden, a defendant must show not only “that the plaintiff does not possess needed evidence” but also that “the plaintiff cannot reasonably obtain needed evidence.”¿(Aguilar, supra, 25 Cal.4th at p. 854.)¿It is insufficient for the defendant to merely point out the absence of evidence.¿(Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891.)¿The defendant “must also produce evidence that the plaintiff cannot reasonably obtain evidence to support his or her claim.”¿(Id.)¿The supporting evidence can be in the form of affidavits, declarations, admissions, depositions, answers to interrogatories, and matters of which judicial notice may be taken.¿(Aguilar, supra, 25 Cal.4th at p. 855.)

“Once the defendant … has met that burden, the burden shifts to the plaintiff … to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (CCP § 437c, subd. (p)(2).) The plaintiff may not merely rely on 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.”¿(Ibid.)¿“If the plaintiff cannot do so, summary judgment should be granted.”¿(Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.)

“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.]¿Only when the inferences are indisputable may the court decide the issues as a matter of law.¿ If the evidence is in conflict, the factual issues must be resolved by trial.”¿(Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839.)¿Further, “the trial court may not weigh the evidence in the manner of a factfinder to determine whose version is more likely true.¿[Citation.]¿Nor may the trial court grant summary judgment based on the court’s evaluation of credibility. [Citation.]” (Id. at p. 840; see also Weiss v. People ex rel. Department of Transportation (2020) 9 Cal.5th 840, 864 [“Courts deciding motions for summary judgment or summary adjudication may not weigh the evidence but must instead view it in the light most favorable to the opposing party and draw all reasonable inferences in favor of that party”].)

It is an unlawful employment practice for an employer to refuse to hire or employ a person, to discharge a person from employment, or to discriminate against the person in compensation or in terms, conditions, or privileges of employment on the basis of race or religious creed. (Gov. Code, § 12940, subd. (a).)¿

To establish a claim for discrimination in violation of FEHA, the plaintiff must generally prove that: (1) he or she was a member of a protected class; (2) he or she was qualified for the position he or she sought or was performing competently in the position he or she held; (3) he or she suffered an adverse employment action, such as termination, demotion, or denial of an available job; and (4) some other circumstance suggesting discriminatory motive. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 355.)¿

Defendant argues that no triable issues of material fact exist as to Plaintiff’s FEHA claims because Defendant did not employ five or more individuals during the relevant period. The FEHA defines an employer as “any person regularly employing five or more persons…” (Government Code (“Gov. Code”) §12926 subd. (d).) The “number of persons on the payroll, not the number working on any particular day, is determinative of the number of employees an employer regularly employs.” (Robinson v. Fair Employment and Housing Commission (1992) 2 Cal.4th 226, 231.)

Defendant submits evidence showing that in 2020 Defendant employed: (1) Alexis Angel; (2) Kelly Dingwell; (3) La Drea Johnson; and (4) Christee Luedtke. (UF No. 2; Dingwell Decl., Ex. B.) Defendant submits evidence showing that in 2021 Defendant employed: (1) Alexis Angel; (2) Kelly Dingwell; (3) La Drea Johnson; (4) Christee Luedtke [as an independent contractor – bookkeeper]; and (5) Sharyld Brecht [as an independent contractor – contract attorney]. (UF No. 3; Dingwell Decl., Exs. C-D.) Defendant submits evidence showing that in 2022 Defendant employed: (1) Alexis Angel; (2) Kelly Dingwell; (3) La Drea Johnson; (4) Christee Luedtke [as an independent contractor – bookkeeper]; (5) Sharyld Brecht [as an independent contractor – contract attorney]; (6) Uma Gopalswami [as an independent contractor – contract attorney]; (7) Sierra Fraser [summer intern, employed for 8 weeks]; and (8) Riley Fraser [summer intern, employed for 8 weeks]. (UF No. 4; Dingwell Decl., Ex. E-F.)

As defined in Gov. Code section 12926 subdivision (d), an ‘employer’ and ‘employee’ are distinct and do not overlap in a way that would allow an individual to be both an employer and employee at the same time. It is undisputed that Mrs. Dingwell is the primary shareholder, corporate agent and managing attorney at Defendant law firm. (UF No. 1.) Accordingly, Ms. Dingwell, as the employer, is not an employee. (Gov. Code, § 12926 subd. (d).) Defendant also argues that based on consideration of the factors set out in S.G. Borello & Sons, Inc. v. Dept. of Industrial Relations (1989) 48 Cal.3d 341, Sharyld Brecht and Uma Gopalswami, independent contract attorneys, do not qualify as employees under FEHA. Defendant asserts that Ms. Brecht and Ms. Gopalswami intended their relationship to be that of independent contractors, maintain their own office spaces and equipment, operate independently of Defendant’s resources, undertake projects in specialized areas of law not central to the firm’s primary focus, and manage their own projects and hours. (UF Nos. 6-31.)

Defendant further argues that Ms. Luedtke does not qualify as an employee under FEHA because she was retained as an independent bookkeeper, thus performing services outside of Defendant’s usual course of business, works remotely without supervision and sets her own schedule. (UF Nos. 32-41.)

Thus, Defendant has shown that Defendant did not regularly employ five or more individuals during the relevant period. The burden thus shifts to Plaintiff to raise a triable issue of material fact.

In the Opposition, Plaintiff argues that Ms. Brecht, Ms. Gopalswami and Ms. Luedtke do not qualify as independent contractors and should be considered as employees. Plaintiff does not, however, cite to any evidence or facts to support her arguments. (Opp., pp. 3:23-7:24.) Plaintiff cites only to the declarations Defendant submitted in support of its argument as to independent contractor status. This is not sufficient to raise a triable issue of material act.

Even if Plaintiff had sufficiently presented a triable issue of material fact as to whether Defendant regularly employed five or more individuals, the Court has determined that Summary Judgment is warranted on other grounds.

To challenge an employment discrimination claim on summary judgment, an employer must either show that one or more of the prima facie elements is lacking, or must offer a legitimate, nonretaliatory reason for the adverse employment action. (See Caldwell v. Paramount Unified Sch. Dist. (1995) 41 Cal.App.4th 189.) If the employer produces a legitimate reason for the adverse employment action, the presumption of discrimination “drops out of the picture,” and the burden shifts back to the employee to prove that the claimed legitimate reason is merely a pretext. (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4^th 1028, 1042.)

"The plaintiff must do more than raise the inference that the employer's asserted reason is false. A reason cannot be proved to be "a pretext¿for discrimination" unless it is shown¿both¿that the reason was false,¿and¿that discrimination was the real reason. If the plaintiff produces¿no¿evidence from which a reasonable fact finder could infer that the employer's true reason was discriminatory, the employer is entitled to summary judgment." (Hicks v. KNTV Television, Inc.¿(2008) 160 Cal.App.4th 994, 1003 [internal citations and quotations omitted].)

Defendant argues that Plaintiff cannot establish that she suffered an adverse employment action, discriminatory motive or a causal link between discriminatory animus and the adverse action. On December 11, 2022, Plaintiff sent an email to Defendant, stating, in part: “bbbbbbyyyyyyyyyeeeeeeee. (three laughing emojis). FYI: Yes, you got the right one, and I had time today (three laughing emojis) don't take my inexperience as weakness. Later, girl." (UF Nos. 84; Dingwell Decl., Ex. J.) Defendant understood this email as Plaintiff’s resignation. (UF. Nos. 85-86; Dingwell Decl., Ex. Q.) Plaintiff responded to Defendant that she had not intended the email to be a resignation. (Dingwell Decl., Ex. Q.) Plaintiff stated “I just want to be clear; I never stated I wanted to quit the job. Further, I want to be clear; I am being fired. I am being fired for expressing my grievance to you about an employee (Alexis Angel "AA").” (Dingwell Decl., Ex. Q.) Defendant proceeded to terminate Plaintiff’s employment. (UF No. 87; Dingwell Decl., Ex. Q.) Defendant states “Plaintiff tried to convince me that she did not say anything offensive and did not mean to resign, but it was too late, as the harmful communication had already taken place and could not be undone under the circumstances.” (Dingwell Decl., ¶ 44.)

Defendant offers substantial evidence that Plaintiff was terminated based on a purported resignation and on emails and communication which Defendant perceived as rude and unprofessional. (UF Nos. 78-87.) Thus, Defendant has met its burden to demonstrate a legitimate, non-discriminatory reason for the adverse employment action. The burden therefore shifts to Plaintiff to demonstrate a triable issue of fact in this respect.

In Opposition, Plaintiff asserts that the basis of the discussion leading up to her termination was regarding Plaintiff being treated less favorably than her co-worker Ms. Angel. (JOHNS000286- JOHNS000296.) Plaintiff argues that she “wrote these words in the email as if she was responding to another Black person or someone from the same culture. For some unknown reason, Kelly Dingwell took this as if Plaintiff was resigning. Evidently, Defendant did not like that Plaintiff was responding to her like she was speaking to another “Black” person.” (Opp. p. 12:24-28.)

"Although an employee's evidence submitted in opposition to an employer's motion for summary judgment is construed liberally, it remains subject to careful scrutiny. The employee's subjective beliefs in an employment discrimination case do not create a genuine issue of fact; nor do uncorroborated and self-serving declarations. The employee's evidence must relate to the motivation of the decision makers and prove, by nonspeculative evidence, an actual causal link between prohibited motivation and [discrimination]." (Featherstone v. Southern California Permanente Medical Group¿(2017)¿10 Cal.App.5th 1150, 1159 [internal citations and quotations omitted].) Plaintiff’s evidence indicates that there was miscommunication and disagreement over how certain work tasks—namely responsibility for inputting expenses—was delegated between Plaintiff and Ms. Angel. (JOHNS000286- JOHNS000296.) Plaintiff offers her own declaration in which she states that Ms. Angel, a Mexican woman, was assigned more responsibility at work than Plaintiff, a Black woman. (Johnson Decl., ¶¶ 5-6, 14-15.) The evidence does not; however, indicate that Defendant’s asserted reason for termination was false or that discrimination was the real reason.

Thus, Plaintiff failed to meet her burden to demonstrate that Defendant’s proffered non-discriminatory reason for Plaintiff’s termination is a pretext for discrimination.

Thus, Defendant’s motion for summary judgment is GRANTED as to the first cause of action.

Second Cause of Action: Harassment on the Basis of Race in Violation of FEHA

Employers may not harass an employee because of race, religious creed, color, national origin, ancestry, physical¿disability, mental¿disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status. (Gov. Code § 12940,¿subd. (j)(1).)

The elements of a cause of action for harassment under FEHA are: (1) the plaintiff belongs to a protected group; (2) the plaintiff was subjected to harassment; (3) the harassment complained of was based on the plaintiff’s membership in the protected group; (4) the harassment complained of was sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment; and (5)¿respondeat¿superior. (Jones v. Department of Corrections & Rehabilitation¿(2007) 152 Cal.App.4th 1367, 1377.) The court looks to the totality of the circumstances to determine that a hostile work environment existed. (Etter v. Veriflo Corp. (1998) 67 Cal.App.4th 457, 466.) A court looks at: (1) the frequency of harassment; (2) the severity of harassment; (3) whether the conduct was threatening, humiliating, or merely an offensive utterance; and (4) did the harassment interfere with a plaintiff’s work performance. (Id.)

Defendant argues that Plaintiff cannot show that she was subject to unwelcome harassment, that the alleged harassing conduct was based on Plaintiff’s race or that the conduct unreasonably interfered with Plaintiff’s work performance. Defendant argues that Mrs. Dingwell’s response of “Duh, good catch brb” in reply to Plaintiff pointing out a mistake is not harassing or based on Plaintiff’s race. (UF No. 75) Defendant has thus met its burden to make a prima facie showing that no triable issue of material fact exists as to Plaintiff’s cause of action for harassment based on race.

Plaintiff argues that use of the word “duh” is actionable harassment here because there is no evidence that Mrs. Dingwell used the word with other employees. (Opp. pp. 13:23-14:12.) Plaintiff also argues that she was subject to harassment when Mrs. Dingwell asked the staff to select pictures to display in the office, but Mrs. Dingwell only hung photos of White and Hispanic females and not a photo of a Black female. (Johnson Decl., ¶ 9.) Plaintiff has not met her burden to show that there are triable issues of fact regarding whether she suffered harassment withing the meaning of FEHA. First, Plaintiff has presented no evidence that Mrs. Dingwell’s use of the phrase “Duh, good catch brb” bears any connection to Plaintiff’s race. Second, “‘harassment cannot be occasional, isolated, sporadic, or trivial[;] rather the plaintiff must show a concerted pattern of harassment of a repeated, routine or a generalized nature. (Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 131.) The single incident of Mrs. Dingwell not hanging a portrait of a Black woman in the office does not suffice to create a FEHA harassment claim based on race.

Thus, Defendant’s motion for summary judgment is GRANTED as to the second cause of action.

To challenge an employment discrimination claim on summary judgment, an employer must either show that one or more of the prima facie elements is lacking, or must offer a legitimate, nonretaliatory reason for the adverse employment action. (Caldwell, supra, 41 Cal.App.4th 189.) As discussed above, Defendant has demonstrated a legitimate, non-discriminatory reason for the adverse employment action and Plaintiff has failed to raise a triable issue of fact that Defendant’s proffered reason is a pretext for discrimination.

Thus, Defendant’s motion for summary judgment is GRANTED as to the third cause of action.

“California cases hold that in order to establish a prima facie case of retaliation under the FEHA, a plaintiff must show (1) he or she engaged in a ‘protected activity,’ (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer’s action.” (Yanowitz, supra, 36 Cal.4th at p. 1042.)

The court finds that Defendant is entitled to summary judgment on the retaliation claim because Defendant has met its burden of showing that it had a legitimate reason for terminating Plaintiff and Plaintiff has not submitted any evidence showing that her termination was the product of retaliatory animus. Thus, Defendant’s motion for summary judgment as to the fourth cause of action is GRANTED.

Fifth Cause of Action, Failure to Prevent Race Discrimination, Harassment and Retaliation in Violation of FEHA

As this cause of action is wholly derivative of the first through fourth causes of action, on which Defendant has prevailed, Defendant’s motion for summary judgment as to the fifth cause of action is GRANTED.

“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.)

The court has found that Defendant has shown it terminated Plaintiff because of legitimate reasons and Plaintiff has failed to meet her burden of producing evidence showing a triable issue of material fact exists regarding that issue. Thus, summary judgment as to the sixth cause of action for wrongful termination in violation of public policy is GRANTED.

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Hon. Holly J. Fujie

Judge of the Superior Court