Judge: Joel L. Lofton, Case: 19GDCV01327, Date: 2022-10-11 Tentative Ruling
Case Number: 19GDCV01327 Hearing Date: October 11, 2022 Dept: X
Tentative Ruling
Judge Joel L. Lofton,
Department X
HEARING DATE: October
11, 2022 TRIAL DATE: December 13, 2022
CASE: MIN LU aka
VICTORIA LU, v. QINGYUAN YAN; SHANGHAILANDER PALACE; SHANGHAILANDER PALACE
ARCADIA; and DOES 1-20, inclusive.
CASE NO.: 19GDCV01327
MOTION
FOR SUMMARY ADJUDICATION
MOVING PARTY: Defendants Qingyuan Yan,
Shanghailander Palace; Shanghailander Palace Arcadia
RESPONDING PARTY: Plaintiff
Min Lu
SERVICE: Filed July 26, 2022
OPPOSITION: Filed September 27, 2022
REPLY: No reply filed
RELIEF
REQUESTED
Defendants move for
summary adjudication as to Plaintiff’s first, second, third, fourth, fifth, and
ninth causes of action.
BACKGROUND
This case arises out of Plaintiff’s workplace
misconduct claims against Defendants Qinyuan Yan (“Yan”), Shanghailander
Palace, and Shanghailander Palace Arcadia (the “Restaurant”) (collectively
“Defendants”). Plaintiff alleges that the Restaurant hired her in 2015 to work
as a server. Plaintiff alleges that Yan was a manager at the Restaurant and
repeatedly sexually harassed her by inappropriately touching her, making
sexualized comments, pushing her against the wall to grope her, and exposing himself
to her. Plaintiff alleges that the Restaurant failed to properly investigate or
discipline Yan after she reported the incidents.
Plaintiff also alleges that the
Restaurant failed to pay her overtime and failed to issue wage statements
reflecting the correct number of hours she worked. Plaintiff filed this
complaint on October 15, 2019, alleging ten causes of action for: (1) battery,
(2) negligence, (3) assault, (4) quid pro quo sexual harassment, (5) hostile
work environment, (6) nonpayment of wages, (7) nonpayment of overtime
compensation, (8) waiting-time penalty for nonpayment of wages, (9) failure to
provide accurate itemized wage statements, and (10) failure to make employee
personnel records available for inspection.
TENTATIVE RULING
Defendants’
motion for summary adjudication is DENIED as to Plaintiff’s first, second and
third causes of action.
Defendant’s
motion for summary adjudication is GRANTED as to Plaintiff’s fourth, fifth, and
ninth cause of action.
REQUEST FOR JUDICIAL NOTICE
Defendants’
request for judicial notice for Exhibit 1 is granted pursuant to Evidence Code
section 452, subdivision (d).
LEGAL STANDARD
“A party may move for summary adjudication as
to one or more causes of action within an action, one or more affirmative
defenses, one or more claims for damages, or one or more issues of duty, if the
party contends that the cause of action has no merit, that there is no
affirmative defense to the cause of action, that there is no merit to an
affirmative defense as to any cause of action, that there is no merit to a
claim for damages, as specified in Section 3294 of the Civil Code, or that one
or more defendants either owed or did not owe a duty to the plaintiff or
plaintiffs. A motion for summary adjudication shall be granted only if it
completely disposes of a cause of action, an affirmative defense, a claim for
damages, or an issue of duty.” (Code
Civ. Proc., § 437c, subd. (f)(1).)
“ Generally, a defendant moving for summary
adjudication must present evidence that either ‘conclusively negate[s] an
element of the plaintiff's cause of action’ or ‘show[s] that the plaintiff does
not possess, and cannot reasonably obtain,’ evidence necessary to establish at
least one element of the cause of action. [citation]” (Cornell v. Berkley
Tennis Club (2017) 18 Cal.App.5th 908,
924-25.) “If the [defendant] satisfies its initial burden, the burden shifts to
the [plaintiff] to set forth ‘specific facts’ showing that a triable issue of
material fact exists. [citation]” (Id. at p. 925.)
DISCUSSION
First
Cause of Action for Civil Battery and Third Cause of Action for Assault
Defendants
argue that Plaintiff’s allegations that Yan improperly touched her is barred by
the statute of limitations.
“The elements of
civil battery are: (1) defendant intentionally performed an act that resulted
in a harmful or offensive contact with the plaintiff's person; (2) plaintiff
did not consent to the contact; and (3) the harmful or offensive contact caused
injury, damage, loss or harm to plaintiff.” (Brown v. Ransweiler (2009)
171 Cal.App.4th 516, 526-27.)
“The
elements of a cause of action for assault are: (1) the defendant acted with
intent to cause harmful or offensive contact, or threatened to touch the
plaintiff in a harmful or offensive manner; (2) the plaintiff reasonably
believed he was about to be touched in a harmful or offensive manner or it
reasonably appeared to the plaintiff that the defendant was about to carry out
the threat; (3) the plaintiff did not consent to the defendant's conduct; (4)
the plaintiff was harmed; and (5) the defendant's conduct was a substantial
factor in causing the plaintiff's harm.” (Carlsen v. Koivumaki (2014)
227 Cal.App.4th 879, 890.)
“Causes of
action for assault, battery and intentional infliction of emotional distress
are governed by the two-year statute of limitations set forth in Code of Civil Procedure section 335.1.” (Pugliese
v Superior Court (2007) 146 Cal.App.4th 1444, 1450, fn. omitted.)
Defendants
assert that during her deposition testimony, Plaintiff stated that the last
instance of misconduct occurred more than two years before Plaintiff filed this
complaint. To establish this, Defendants point to the online court documents
for the criminal case against Yan, which specified the violation date to be
September 1, 2017. (RJN Exhibit 1.) Further, Defendants point to two instances
in Plaintiff’s deposition testimony where she stated that the last time Yan did
something offensive was around September or October 2017. (Exhibit 1 at p.
111:19-23 and p. 112:14-22.)
Defendants have failed to meet their burden of
establishing that the alleged misconduct falls outside of the statute of
limitations. “Although the existence of a
document may be judicially noticeable, the truth of statements contained in the
document and its proper interpretation are not subject to
judicial notice if those matters are reasonably disputable.” (Unruh-Haxton
v. Regent of University of California (2008) 162 Cal.App.4th 343, 364.)
Defendants’ request for judicial notice does not establish that the last
alleged violation did in fact occur on September 1, 2017.
Further,
Plaintiff’s testimony that the last instance of misconduct that she recalls was
in September or October of 2017 does not necessarily place her allegations
outside of the statute of limitations. Plaintiff’s statements do not rule out
the possibility that Yan engaged in misconduct on October 15, 2017, or beyond,
which would be within the statute of limitations. Plaintiff also states that
Yan continued to touch her inappropriately and sexually harass after after
September 2017. (Lu Decl. ¶ 26.)
Defendants
have failed to meet their burden of establishing that there is no triable issue
of material fact regarding whether the alleged misconduct falls outside of the
statute of limitations.
Defendant’s
motion for summary adjudication as to Plaintiff’s first and third causes of
action is denied.
Second
Cause of Action for Negligence
Defendants assert that Plaintiff’s
second cause of action for negligence fails as a matter of law because they
characterize Plaintiff’s claim as one for negligent hiring, training, and
supervision, for which Plaintiff’s exclusive remedy is for workers compensation.
“The elements of a cause of action
for negligence are duty, breach, causation, and damages.” (Melton v.
Boustred (2010) 183 Cal.App.4th 521, 529.)
“Workers’ compensation ‘ “is the
exclusive remedy against an employer for injury or death of an employee.” ’ ” (Alvarez
v. Seaside Transportation Services LLC (2017) 13 Cal.App.5th 635, 640.)
While Plaintiff’s claim can be read as simply making a claim for negligent
hiring, in the context of the pleadings as a whole, Plaintiff’s second cause of
action can also be read as claiming Defendants failed to prevent Yan’s sexual
harassment against Plaintiff.
To be preempted, a claim must “
aris[e] out of an in the course of employment”. (Lab. Code section 3600, subd.
(a).) In analyzing claims for sexual harassment in relation to workers’
compensation claims, Courts have held that “[n]either discrimination nor
harassment is a normal incident of employment.” (Nazir v. United Airlines,
Inc. (2009) 178 Cal.App.4th 243, 288; see also Murray v. Oceanside
Unified School Dist. (2000) 79 Cal.App.4th 1338, 1363.)
Thus, Defendants have failed to
establish that Plaintiff’s second cause of action fails under the exclusive
remedy rule for workers compensation because Plaintiff’s claims are for sexual
harassment, which is not a normal incident of employment. Defendants’ motion
for summary adjudication as to Plaintiff’s second cause of action is denied.
Fourth Cause of Action for Quid Pro Quo Sexual Harassment
and Fifth Cause of Action for Hostile Work Environment
Defendants
assert that Plaintiff’s workplace sexual harassment claims fail because they
were not made within one year of the end of Plaintiff’s employment at the
Restaurant. A previous version of Government Code section 12960, which was in
effect during the alleged harassment, required Plaintiff to file an
administrative complaint within one year. (See also Romano v. Rockwell
Internat., Inc. (1996) 14 Cal.4th 479, 493.)
Plaintiff
does not dispute that the one-year requirement applies to her claims. Further,
the parties do not dispute that Plaintiff filed an administrative complaint
with DFEH on October 12, 2019. (SSUF No. 38.)
The
parties, however, do dispute whether that was one year after her termination.
Defendants point to Plaintiff’s deposition testimony where she states her
employment ended on February 25, 2018. (Exhibit 1 at p. 33:2-24.) Defendant
also points to the declaration of Charles Lu, who provides that he is an
officer of the Restaurant and Plaintiff stopped working at the Restaurant as of
February 25, 2018. (Lue Decl. ¶¶ 1-2.) Defendant also
provides that the Restaurant’s payroll demonstrate that Plaintiff did not work
for it after February 25, 2018. (Exhibit 4.) Lastly, Defendants provide that
Plaintiff began collecting unemployment benefits a month after February of
2018. (SSUF No. 41.) Defendants have thus established that Plaintiff is unable
to demonstrate she timely filed an administrative complaint.
In opposition, Plaintiff argues that she never quit and
was never fired and continued to communicate with Defendants. (Lu Decl. ¶ 22.)
She also provides doctors notes that excuse her from work. (Id. ¶ 21,
Exhibit D.)
“In determining whether any triable issue of
material fact exists, the trial court may give ‘great weight’ to admissions
made in discovery and ‘disregard contradictory and self-serving affidavits of
the party.’ ” (Whitmire v. Ingersoll-Rand Co. (2010) 184 Cal.App.4th
1078, 1087.) “Where a declaration submitted in opposition to a motion for
summary judgment motion clearly contradicts the declarant's earlier deposition
testimony or discovery responses, the trial court may fairly disregard the
declaration and ‘ “conclude there is no substantial evidence
of the existence of a triable issue of fact.” ’ ” (Ibid.)
Here,
Plaintiff’s self-serving declaration fails to raise a triable issue of material
fact regarding whether she was employed past February 25, 2018. Plaintiff’s
mere statement that she was never fire or never quit is not substantial
evidence, especially given the fact that she previously testified at her
deposition that her employment ended on February 25, 2018. Neither Plaintiff’s
submission of the doctor’s note nor her claims that she communicated with
Defendants support a finding that she was actually employed at the Restaurant
past February 25, 2018.
Thus,
Plaintiff has failed to raise a triable issue of material fact regarding the
final date of her employment at the Restaurant. Further, because Defendant has
established that Plaintiff’s employment terminated on February 25, 2018, and
Plaintiff filed an administrative complaint on October 12, 2019, Plaintiff’s
claim is barred by the statute of limitations in effect at the time Plaintiff’s
claim arose. Plaintiff’s claim has thus lapsed.
Defendants’
motion for summary adjudication is granted as to Plaintiff’s fourth and fifth
causes of action.
Ninth
Cause of Action for Failure to Provide Accurate Itemized Wage Statements
Defendants argue that Plaintiff’s ninth cause of
action also fails because it is past the one-year statute of limitations. Plaintiff’s
complaint seeks to bring a claim for violation of Labor Code section 226. The
statute of limitations for a section 226 penalty claim is one year. (See Falk
v. Children’s Hospital Los Angeles (2015) 237 Cal.App.4th 1454, 1469; Murphy
v. Kenneth Cole Productions, Inc. (2007) 40 Cal.4th 1094, 1118, fn. 16.)
Here,
Defendants and Plaintiff make the same arguments as applied to her workplace
harassment claim. Thus, Defendants have met their burden of establishing that
Plaintiff’s employment ended on February 25, 2018. Likewise, Plaintiff has
failed to demonstrate a triable issue of material fact exists as to her final
date of employment at the Restaurant. Because Plaintiff filed this complaint on
October 15, 2018, more than a year after the end of her employment, Plaintiff’s
ninth cause of action is barred by the statute of limitations.
Defendant’s
motion for summary adjudication is granted as to Plaintiff’s ninth cause of action.
CONCLUSION
Defendants’
motion for summary adjudication is denied as to Plaintiff’s first, second and
third causes of action.
Defendant’s
motion for summary adjudication is granted as to Plaintiff’s fourth, fifth, and
ninth cause of action.
Moving
party to give notice.
Dated: October 11,
2022 ___________________________________
Joel
L. Lofton
Judge
of the Superior Court
Parties who intend to submit on this tentative must send an
email to the court indicating their
intention to submit.
Parties intending to appear are strongly encouraged to appear remotely. alhdeptx@lacourt.org