Judge Holly J. Fujie, Case BC6615 2023-04-14 Tentative Ruling

MOVING PARTY: Defendants Ten Tech, LLC (“Ten Tech”) and Connie Yokogawa (“Yokogawa”) (collectively, “Moving Defendants”)

This action arises out of an employment relationship. Plaintiff’s complaint (the “Complaint”) alleges: (1) jury service retaliation; (2) disability harassment; (3) disability discrimination; (4) disability retaliation; (5) failure to engage in the interactive process; (6) failure to accommodate; (7) failure to timely pay wages; (8) failure to indemnify; (9) violation of Business and Professions Code section 17200; (10) whistleblower violation; (11) negligent misrepresentation; (12) retaliation and wrongful termination in violation of public policy; and (13) intentional infliction of emotional distress. The Complaint alleges that Plaintiff was terminated from his employment at Ten Tech as a result of his disability as defined under the Fair Employment and Housing Act (“FEHA”) in addition to his forthcoming jury service and earlier complaints about Ten Tech’s compensation practices.

Moving Defendants filed a motion for summary judgment and/or adjudication to the first and third through thirteenth causes of action (the “Motion”) on the grounds that there are no triable issues of material fact with respect to any of those claims and Moving Defendants are therefore entitled to judgment as a matter of law.[1]

The Requests for Judicial Notice filed by Moving Defendants and Plaintiff are GRANTED as to the existence of the documents, but not to the truth of the matters stated therein. (See Scott v. JP Morgan Chase Bank, N.A. (2013) 214 Cal.App.4th 743, 752-54.)

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) California Code of Civil Procedure (“CCP”) section 437c, subdivision (c) requires the trial judge to grant summary judgment if all the evidence submitted, and all inferences reasonably deducible from the evidence and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)

As to each claim as framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. (CCP § 437c, subd. (p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520.) Courts liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party. (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)

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

In analyzing an employee’s claim for unlawful discrimination under FEHA, California courts have adopted the three-stage, burden-shifting test the U.S. Supreme Court established in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792. (Swanson v. Morongo Unified School Dist. (2014) 232 Cal.App.4th 954, 964.) The McDonnell Douglas test reflects the principle that direct evidence of intentional discrimination is rare, and that such claims must usually be proved circumstantially. (Id.) 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. (Id.)

California courts have recognized that the McDonnell Douglas test was originally developed for use at trial, not in summary judgment proceedings. (Id. at 965.) California 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 965-66.) The burdens and order of proof therefore shift under the McDonnell Douglas test when an employer defendant seeks summary judgment. (Id. at 966.) 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 966.) To 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. (Id.)

The Notice of Motion lists each cause of action for which Moving Defendants seek to have adjudicated. The Court finds that the Notice of Motion adequately provides that Moving Defendants seek summary judgment and/or summary adjudication as required under California Rules of Court (“CRC”), rule 3.1350. (See CRC, r. 3.135(b).) In addition, while Moving Defendants raise arguments concerning Yokogawa’s personal liability for the FEHA causes of action at issue in the Motion, the Complaint does not allege that Yokogawa is a party to the third through sixth causes of action.

In support of the Motion, Moving Defendants provide evidence that Ten Tech employed Plaintiff between December 16, 2015 and June 3, 2016. (Separate Statement of Undisputed Material Facts (“UMF”) 57.)

During Plaintiff’s second performance review on April 28, 2016 (the “April Review”), Plaintiff informed Yokogawa that he was experiencing irritable bowel syndrome (“IBS”) symptoms. (UMF 27.) On May 10, 2016, Plaintiff was assigned to work on a slide presentation that was to be due by the end of the business day on June 3, 2016. (See UMF 44.) In the morning on June 3, 2016, before Plaintiff arrived at the office, Villers noticed that Plaintiff’s presentation was not complete. (UMF 51.) Plaintiff arrived to work at around 9:30 a.m. on June 3, 2016, approximately 30 minutes late. (UMF 55.) When Plaintiff arrived, Villers terminated him due to his failure to timely complete the slideshow presentation. (UMF 56.)

Plaintiff received two summonses for jury duty while employed by Ten Tech. (UMF 73.) Plaintiff was given time off for jury duty in February 2016. On or about May 25, 2016, Ten Tech approved of Plaintiff’s request for time off for jury duty service beginning on June 7, 2016. (UMF 81.)

Upon its inception on June 6, 2011, Ten Tech was organized as a member-managed limited liability company (LLC”). (UMF 1-4.) Since its founding, Yokogawa and William Villers (“Villers”) have been Ten Tech’s sole members and managers. (UMF 4, 8.) Yokogawa and Villers manage Ten Tech’s daily affairs. (UMF 10.) During Plaintiff’s employment period, Ten Tech regularly employed Mark Sipperly and Benson Tu. (See UMF 58.)

The elements of a claim of wrongful discharge under Labor Code, section 230, subdivisions (b) and (c) are: (1) discharge of, or discrimination in the terms and conditions of employment against, an employee; and (2) that the employer's conduct was motivated by the employee's taking or having taken time off to appear in court as a witness. (Deschene v. Pinole Point Steel Co. (1999) 76 Cal.App.4th 33, 41-42.) In defense of such a claim an employer can argue that either the employee did not give reasonable notice of the court date or that the employer did not act out of the prohibited motive. (Id. at 42.)

The Court finds that Plaintiff has raised factual issues regarding the first cause of action. Although Moving Defendants argue that Plaintiff was fired due to his failure to complete his assignment by its June 3, 2016 due date, Plaintiff presents evidence that he was terminated in the morning when he arrived to work despite the projects not being due until the close of the day. (See Additional Material Fact (“AMF”) 78-79.) Plaintiff additionally presents evidence that Villers and Yokogawa expressed their concern about allowing Plaintiff to take time off to serve on a second jury. (See AMF 140-146.) Given the proximity of Plaintiff’s June 2016 jury service date to the termination, the Court DENIES the Motion to the first cause of action.

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.)

FEHA prohibits an employer from failing to make reasonable accommodations for the known physical and mental disability of an employee. (Gov. Code § 12940, subd. (m).) The elements of a failure to accommodate claim are: (1) the plaintiff has a disability under 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. (Lui v. City and County of San Francisco (2012) 211 Cal.App.4th 962, 971.) A “reasonable accommodation” means a modification or adjustment to the workplace that enables the employee to perform the essential functions of the job held or desired. (Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1010.) Two principles underlie a cause of action for failure to provide a reasonable accommodation: (1) first, the employee must request an accommodation; and (2) second, the parties must engage in an interactive process regarding the requested accommodation and, if the process fails, responsibility for the failure rests with the party who failed to participate in good faith. (Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34, 54.)

FEHA imposes an additional duty on the employer to engage in a timely, good faith, interactive process with the employee to determine effective reasonable accommodations. (Wilson v. County of Orange (2009) 169 Cal.App.4th 1185, 1193.) An employer's failure to engage in this process is a separate FEHA violation. (Id.)

FEHA makes it unlawful for an employer to retaliate against an employee who has opposed any discriminatory action or¿who has filed a complaint, testified, or assisted in a FEHA proceeding. (George v. California Unemployment Ins. Appeals Bd.¿(2009) 179 Cal.App.4th 1475, 1489.) As a general rule, close temporal proximity is sufficient to establish a prima facie¿causal¿connection¿between protected activity and adverse employment action. (Arteaga v. Brink's, Inc.¿(2008) 163¿Cal.App.4th¿327, 334-35.) It is difficult to resolve claims of retaliation on summary judgment, where the court draws all reasonable inferences in favor of the party opposing such a motion. (Nazir v. United Airlines, Inc.¿(2009) 178 Cal.App.4th 243, 286.) In order to establish a prima facie case of retaliation under FEHA, a plaintiff must show that: (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¿v.¿L'Oreal¿USA, Inc.¿(2005) 36 Cal.4th 1028, 1042.)¿ Once an employee establishes a prima facie case, the employer is required to offer a legitimate, nonretaliatory reason for the adverse employment action. (Id.) If the employer produces a legitimate reason for the adverse employment action, the presumption of retaliation drops out of the picture, and the burden shifts back to the employee to prove intentional retaliation.

With respect to FEHA discrimination, FEHA defines an employer as “any person or individual engaged in any business or enterprise regularly employing five or more individuals, including individuals performing any service under any appointment, contract of hire or apprenticeship, express or implied, oral or written.” (2 CCR § 1008(d).) “Regularly employing” means employing five or more individuals for any part of the day on which the unlawful conduct allegedly occurred, or employing five or more employees on a regular basis; and “regular basis” refers to the nature of a business that is recurring, rather than constant. For example, in an industry that typically has a three-month season during a calendar year, an employer that employs five or more employees during that season “regularly employs” the requisite number of employees. (Id.) Thus, to be covered by FEHA, an employer need not have five or more employees working every day throughout the year or have five or more employees at the time of the allegedly unlawful conduct, so long as at least five employees are regularly on its payroll during the season. (Id.)

Moving Defendants argue that Plaintiff’s FEHA claims fail because Ten Tech did not employ five or more employees during Plaintiff’s employment period. Plaintiff presents evidence that Ten Tech treated its co-owners Yokogawa and William Villers (“Villers”) as employees, and that together with Plaintiff, Ten Tech may have employed at least two additional workers during the time in which Plaintiff was employed, for a total of five employees. (See AMF 251-270.) The Court therefore finds that there are factual issues regarding Ten Tech’s liability under FEHA.

Plaintiff also provides evidence that he recalls telling Yokogawa that his IBS symptoms slowed down his work progress and that he might occasionally require additional time in April 2016. (See AMF 32.) Yokogawa told Plaintiff he would be able to use the restroom while working but that Plaintiff would need to comply with his deadlines. (Id.) With respect to Plaintiff’s FEHA claims, insofar as they substantively pertain to Moving Defendants’ treatment of Plaintiff after he disclosed that he was experiencing IBS symptoms, the Court finds that there are triable issues of fact regarding the third through sixth causes of action. There are issues regarding: (1) whether Plaintiff was disabled; (2) whether Moving Defendants engaged in the interactive process in good faith; (3) whether Plaintiff requested and was denied a reasonable accommodation; (4) whether Moving Defendants discriminated/retaliated against Plaintiff after he disclosed his IBS symptoms; and (5) whether the proffered reason for Plaintiff’s termination was pretextual. The Court therefore DENIES the Motion to the third through sixth causes of action.

Labor Code section 204 sets forth mandatory guidelines for employers to pay employee wages. (See Lab. Code § 204.) Under Labor Code section 2802, subdivision (a) an employer shall indemnify his or her employee for all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties, or of his or her obedience to the directions of the employer, even though unlawful, unless the employee, at the time of obeying the directions, believed them to be unlawful. (Lab. Code § 2802, subd. (a).)

There are triable issues of fact regarding whether Moving Defendants timely paid Plaintiff his wages and whether they indemnified Plaintiff for costs he incurred while performing work for Ten Tech. (See UMF 105-119.) Plaintiff’s evidence provides that Moving Defendants did not timely issue some pay checks and Moving Defendants did not allow him to file a reimbursement claim for certain expenses. The Court therefore DENIES the Motion to the seventh and eighth causes of action.

With the exception of the eleventh cause of action, the ninth through thirteenth causes of action are based on Plaintiff’s alleged disability and whistleblower discrimination and retaliation. Because there are triable issues of material fact regarding Plaintiff’s termination, the Court DENIES the Motion to the ninth, tenth, twelfth and thirteenth causes of action. With respect to the eleventh cause of action, Moving Defendants’ Separate Statement does not set forth issues or facts that isolate the evidence unique to the negligent misrepresentation claim. (See CRC, r. 3.135(b).) The Court therefore also DENIES the Motion to the eleventh cause of action.

In consideration of the current COVID-19 pandemic situation, the Court strongly encourages that appearances on all proceedings, including this one, be made by LACourtConnect if the parties do not submit on the tentative. If you instead intend to make an appearance in person at Court on this matter, you must send an email by 2 p.m. on the last Court day before the scheduled date of the hearing to SMC_DEPT56@lacourt.org stating your intention to appear in person. The Court will then inform you by close of business that day of the time your hearing will be held. The time set for the hearing may be at any time during that scheduled hearing day, or it may be necessary to schedule the hearing for another date if the Court is unable to accommodate all personal appearances set on that date. This rule is necessary to ensure that adequate precautions can be taken for proper social distancing.

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

[1] On August 28, 2018, summary adjudication was granted to the claims currently at issue. This decision was reversed and remanded by the Court of Appeal for the Second District on September 3, 2022, before being assigned to this department.