Judge Jill Feeney, Case Number: 20STCV14594, Date: 2023-11-22 Tentative Ruling

The motion for summary judgment, or in the alternative summary adjudication filed by Defendant Starbucks Corporation is GRANTED as to the first cause of action and DENIED as to the second, seventh, and ninth causes of action, as well as with respect to the demand for punitive damages.

Plaintiff Jayne Montarbo (“Plaintiff”) was employed by Defendant Starbucks Corporation (“Starbucks”) for over 14 years. (Compl. ¶ 10.) She was the District Manager responsible for over 13 stores. (Ibid.) Throughout her tenure at Starbucks, Plaintiff received excellent reviews for her supervision and management skills. (Compl. ¶ 12.)

In 2017, Defendant Pam Michno (“Michno” and together with Starbucks, “Defendants”) took over as Regional Manager. (Compl. ¶ 14.) Michno had prior issues at Starbucks when she as a District Manager. She had mistreated an employee while the employee was on stress leave, then terminated that employee when he complained. (Compl. ¶ 15.) Plaintiff alleges that Michno had a pattern of attempting to drive employees she viewed as “weak” from employment with Starbucks. (Compl. ¶ 16.)

Michno went after Plaintiff after Plaintiff requested time off to care for her ailing father, and due to her stress. (Compl. ¶ 16.) Michno wrote up Plaintiff for minor infractions or things that were out of Plaintiff’s control in an attempt to force Plaintiff to quit. (Compl. ¶ 17.)

On January 27, 2019, Plaintiff filed a complaint with Starbucks Human Resources regarding Michno. (Compl. ¶ 19.) Additionally, she requested a transfer to Michigan to care for her ailing father. (Ibid.) Shortly thereafter, Michno issued a Final Written Warning (“FWW”) to Plaintiff based on stale or false allegations. (Compl. ¶ 20.) On March 14, 2019, Defendants told Plaintiff they would terminate her unless she accepted a separation agreement; Plaintiff refused. (Compl. ¶ 24.) Defendants terminated Plaintiff on April 17, 2019. (Ibid.) Plaintiff alleges her termination was due to her disability, her perceived disability, her serious medical condition, her age, and her request for accommodation. (Compl. ¶ 26.)

On September 22, 2022, the Court denied Defendants’ first motion for summary adjudication as to the first, second, third, fourth, and seventh causes of action, as well as the issue of punitive damages. The Court granted the motion as to the fifth, sixth, and eighth causes of action. The Court denied the motion as to the ninth cause of action as to Defendant Starbucks Corporation and granted the motion as to Defendant Michno.

Starbucks moves for summary judgment or adjudication as to the remaining causes of action against it and the issue of punitive damages. This is Starbucks’ second motion for summary judgment. Thus, as a threshold matter, the Court must determine whether Starbucks has established that it makes this new motion based on newly discovered facts or circumstances or a change of law supporting the issues reasserted in this motion.

A party may move for summary judgment “if it is contended that the action has no merit or that there is no defense to the action or proceeding.” (Code Civ. Proc. § 437c, subd. (a).) “[I]f 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,” the moving party will be entitled to summary judgment. (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)

The moving party bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact, and if he does so, the burden shifts to the opposing party to make a prima facie showing of the existence of a triable issue of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850; accord Code Civ. Proc. § 437c, subd. (p)(2).) 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.)

Neither a moving nor responding party may rely on the mere allegations or denials of its pleadings. A moving party must submit specific admissible evidence showing that the responding party cannot establish at least one element of his, her or its cause of action or defense. The responding party, to defeat the motion, must submit specific admissible evidence showing that a triable issue of material fact does exist as to that element of the cause of action or defense. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

“The “Golden Rule” on a motion for summary judgment or summary adjudication is that “if [a fact] is not set forth in the separate statement, it does not exist.” (Zimmerman, Rosenfeld, Gersh & Leeds LLP v. Larson (2005) 131 Cal.App.4th 1466, 1477, citing United Community Church v. Garcin (1991) 231 Cal.App.3d 327, 337.)

“A party shall not move for summary judgment based on issues asserted in a prior motion for summary adjudication and denied by the court unless that party establishes, to the satisfaction of the court, newly discovered facts or circumstances or a change of law supporting the issues reasserted in the summary judgment motion.” (Code Civ. Proc., section 437c(f)(2).)

Where evidence has been reformatted, condensed, and cosmetically repackaged but is otherwise identical to evidence already submitted in support of an earlier motion for summary judgment, the new motion does not offer newly discovered facts or circumstances sufficient to satisfy Code Civ. Proc., section 437c(f)(2). (Bagley v. TRW, Inc. (1999) 73 Cal.App.4th 1092, 1096.) Motions involving different legal theories are sufficient to meet the requirements of section 437c(f)(2). (Patterson v. Sacramento City Unified School Dist. (2007) 155 Cal.App.4th 821, 827.)

“In Opposition, Plaintiff notes that she was put on a doctor’s ordered stress leave in relation, not just to her relationship with Michno, but also to her father’s deteriorating health. (PSSUMF 48.) Accordingly, Plaintiff has provided a triable issue of material fact as to whether she had a disability under FEHA related to something other than her relationship with Michno. And, as this information was shared with Michno, Plaintiff has provided evidence that Michno perceived Plaintiff as disabled.”

Starbucks’ new motion for summary judgment includes evidence that had already been submitted previously and new records that were produced after the Court’s September 22, 2022 ruling. Starbucks’ Exhibits A-N were included in the first motion for summary judgment. Exhibit O is a copy of Plaintiff’s responses to Special Interrogatories, Set One. Although this exhibit was not included in the first motion, it was not cited in this motion and appears to have been used to establish when Plaintiff’s treatment with Kaiser Permanente (“Kaiser”) took place. Exhibits P-S are Plaintiff’s medical records from Kaiser and emails dated after the September 22, 2022 ruling. Starbucks’ counsel testifies that the records, other than the work status report, were not produced until October 31, 2022. (Helmer Decl., ¶7.)

Plaintiff argues that the Kaiser records are not new facts because Starbucks knew Plaintiff had been treated by Kaiser when she responded to interrogatories in 2020. However, Plaintiff does not dispute that the new Kaiser records were only produced in October 2022, after the hearing on the first motion for summary judgment. There is no evidence that Starbucks had access to records showing the cause of Plaintiff’s alleged disability prior to filing this new motion for summary judgment.

The Court’s September 22, 2022 minute order states it determined both that Plaintiff provided sufficient evidence to raise a triable issue of material fact as to whether she had a disability under the FEHA and that her supervisor Michno had perceived her as disabled.

Starbucks’ new motion argues that Plaintiff’s claims for disability discrimination, perceived disability discrimination, failure to accommodate, failure to engage in the interactive process, wrongful termination, and negligent supervision fail as a matter of law because Plaintiff cannot establish she had a qualifying disability or medical condition under the FEHA. The issue of whether Plaintiff had a disability is identical to the issue adjudicated in the September 22, 2022 order.

The newly discovered medical records submitted by Starbucks constitute newly discovered facts on the issue of whether Plaintiff suffered from a disability unrelated to her ability to work under her current supervisor. However, the new records do not relate to the issue of whether Plaintiff was perceived to be disabled. As Starbucks concedes, it did not receive the medical records until October 2022, after the hearing on its first motion for summary judgment. Plaintiff’s medical records could not have influenced whether Plaintiff’s supervisor perceived that she was disabled at the time she was terminated because her supervisor did not know the reason why Plaintiff was given medical leave other than Plaintiff’s email stating she was struggling to manage her father’s affairs. (Plaintiff’s Exh. 14.) The Court’s September 22, 2022 ruling on this issue stands because Starbucks fails to provide new facts or law that permit a second motion for summary adjudication on this issue.

Starbucks also reargues whether the ninth cause of action for negligent supervision is barred by workers’ compensation exclusivity principles. However, the September 22, 2022 minute order already addressed this issue when it discussed the cause of action for intentional infliction of emotional distress. The Court ruled that workers’ compensation exclusivity does not apply where an injury is caused by discrimination or harassment because they are not normal incidents of employment. Starbucks does not provide new law to justify relitigating this issue.

The Court may only rule on the motion as to the first cause of action for disability discrimination because Plaintiff’s new evidence only relates to the issue of whether Plaintiff had a disability. The motion as to the remaining causes of action relies solely on the argument that Plaintiff cannot establish that she had a disability or was perceived to be disabled. Because the second cause of action for perceived disability discrimination survives, the motion is denied as to the second, seventh, and ninth causes of action, as well as the demand for punitive damages.

Starbucks objects to the Plaintiff’s declaration submitted in opposition to the motion for summary judgment. Starbucks objects to substantially the same material as it objected to in the original motion for similar reasons. Although repackaged to appear different, the Court upholds the rulings made in the previous order. Objections number 3 and 9 are SUSTAINED. The remaining objections are OVERRULED

Starbucks also objects to the declaration of Jose Zepeda submitted in opposition to the motion for summary judgment. These objections are also substantially the same as the objections submitted with the first motion for summary judgment. The Court upholds the rulings made in the previous order. Objections 20 and 31 are SUSTAINED. The remaining objections are OVERRULED.

Starbucks seeks judicial notice of a minute order from an unrelated case, Cruz Casas v. County of Los Angeles, BC698745 (L.A. Super. Ct.). The request is denied. Trial court rulings have no precedential value. (Santa Ana Hospital Medical Center v. Belshe (1997) 56 Cal.App.4th 819, 831.)

A plaintiff establishes a prima facie case of disability discrimination under the FEHA if she shows “ ‘(1) [s]he was a member of a protected class, (2) [s]he was qualified for the position [s]he sought or was performing competently in the position [s]he held, (3) [s]he 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 National, Inc. (2000) 24 Cal.4th 317, 355.)” (Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1067-1068.)

In the context of disability discrimination claims, the Courts of Appeal boil these prima facie elements down from four to three: “that the plaintiff (1) suffered from a disability or was regarded as suffering from a disability, (2) could perform the essential duties of a job with or without reasonable accommodations, and (3) was subjected to an adverse employment action because of the disability or perceived disability.” (Glynn v. Superior Court (2019) 42 Cal.App.5th 47, 53 fn.1.)

A physical or medical disability constitutes a disability under FEHA when that physical or mental disability requires “a limitation upon a major life activity.” (Gov. Code. § 129261.1(c).) The limitation need not be a substantial one as required under the Federal Americans with Disabilities act of 1990. (Id.)

Here, as before, Starbucks argues that the only disability Plaintiff alleges is stress due to Michno’s supervision. Starbucks notes that “an employee’s inability to work under a particular supervisor because of anxiety and stress related to the supervisor’s standard oversight of the employee’s job performance does not constitute a mental disability under FEHA.” (Higgins-Williams v. Sutter Med. Found. (2015) 237 Cal.App.4th 78, 84.)

In Opposition, Plaintiff argues that she was put on a doctor’s ordered stress leave in relation not just to her relationship with Michno, but also due to her father’s deteriorating health. (PLTFSS 48.) Accordingly, Plaintiff contends that she has provided a triable issue of material fact as to whether she had a disability under FEHA related to something other than her relationship with Michno.

Starbucks includes newly produced medical records from Kaiser which state that Plaintiff called Kaiser on February 7, 2019 complaining of stress and anxiety. (Starbucks’ Exh. R, p. 143.) The notes state that Plaintiff had stress and anxiety due to her job and relationship with her boss. (Id.) Plaintiff had been dealing with this boss for two years and could not deal with the situation by herself anymore. (Id.) Plaintiff’s doctor prescribed medication and gave her 2 or 3 days off to help with her symptoms and see her psychologist. (Id.) On February 11, 2019, Plaintiff saw a psychologist who noted that Plaintiff complained of work problems caused by her boss. (Id., p. 150.) Plaintiff complained of being unable to sleep, an inability to cope, shortness of breath, fear of losing control, and many other symptoms. (Id.) Plaintiff feared being fired. (Id.) Plaintiff was also making more mistakes at work and struggling to stay present at work. (Id., p. 219.) All of Plaintiff’s records indicate that she was treated after complaining of anxiety and stress caused by work except for one note on page 219 of her records which states that Plaintiff had “issues with boss and personal stress.” (Id., p. 219.)

Plaintiff’s medical records do not show that Plaintiff’s stress was caused by her father’s health. Rather, the records show that Plaintiff’s stress was caused by her supervisor’s oversight because Plaintiff’s complaints in the medical records largely concern conflicts with her boss. Thus, Starbucks meets its burden of showing no triable issue exists over whether Plaintiff had a disability under the FEHA.

The burden shifts to Plaintiff. Plaintiff argues that the contention that her stress was only caused by work is unsupported by evidence. However, Plaintiff’s medical records show that the stress requiring her to seek leave from work was caused by work with no other reason. Plaintiff provided an email dated January 27, 2019 between herself, her supervisor Michno, and other Starbucks employees stating her father’s health had been declining and that her family has been struggling with managing his affairs. (Plaintiff’s Vol. 1, Exh. 14.) Plaintiff asked for a transfer to be closer to her father in Michigan in that email. (Id.) Plaintiff also testifies in her declaration that she “had to go see a doctor for the stress I was under from the environment under Pam Michno’s control.” (Plaintiff’s Vol. 1, Exh. 7, ¶37.)

Plaintiff’s evidence fails to show that there is triable issue of material fact over whether the stress limiting her ability to work was caused by worry over her father’s health. The January 2019 email stated Plaintiff was struggling to manage her father’s affairs and that she felt she needed to transfer to Michigan, however the email did not state her worry over her father’s health was limiting her ability to work. Indeed, Plaintiff requested a work transfer to another location. Plaintiff’s medical records show that stress from working under her supervisor, Michno, was causing symptoms of anxiety that were causing her to make mistakes at work. Plaintiff’s declaration further confirms that she made the decision to seek medical treatment because of the work environment created by Michno. Plaintiff never states anywhere that stress regarding her father’s situation was what caused her to seek medical attention and to take leave.

Plaintiff argues that the medical records Starbucks provides in support of its motion for summary judgment should be stricken because Starbucks included other records unrelated to Plaintiff’s emotional distress which the parties agreed would not be produced. (Plaintiff’s Vol. 2, Exh. 32.) However, the extraneous records not related to Plaintiff’s emotional distress are not material to this motion. The relevant materials, the Kaiser records detailing Plaintiff’s medical treatment for stress and anxiety, do concern emotional distress and are thus not prohibited from production under the protective order. The Court notes that Exhibit S contains Plaintiff’s full file from Kaiser, including a duplicate of the records from Exhibit R. The extraneous materials, attached as Exhibit S to Defendant’s compendium of evidence, are stricken. Nevertheless, striking these materials does not change the outcome of this motion.