Judge: Joel L. Lofton, Case: 21GDCV00387, Date: 2023-01-31 Tentative Ruling
Case Number: 21GDCV00387 Hearing Date: January 31, 2023 Dept: X
Tentative Ruling
Judge Joel L. Lofton, Department X
HEARING DATE: January 31, 2023 TRIAL DATE: May 9, 2023
CASE: STEPHEN HE v. MEGA BANK, a California Corporation, EDWARD LO, an individual, WILSON NGAI, an individual, and DOES 1 – 90, inclusive.
CASE NO.: 21GDCV00387
MOTION TO COMPEL DEPOSITION TESTIMONY
MOTION FOR A PROTECTIVE ORDER
MOVING PARTY: Motion to Compel deposition filed by Plaintiff
Motion for a protective order filed by Defendants
RESPONDING PARTY: Plaintiff and Defendants, respectively
SERVICE: Motion to compel deposition filed December 14, 2022
Motion for a protective order filed December 29, 2022
OPPOSITION: Filed January 18, 2023
Filed January 10, 2023
REPLY: Filed January 23, 2023
Filed January 24, 2023
RELIEF REQUESTED
Plaintiff moves to compel the deposition testimony of Edward Lo.
Defendants move for a protective over for Lo’s deposition testimony.
BACKGROUND
This case arises out of Plaintiff Stephen He’s (“Plaintiff”) claims that Defendants Mega Bank (“Mega”), Edward Lo (“Lo”), and Wilson Ngai (“Ngai”) (collectively “Defendants”) pressured Plaintiff and made promises to recruit him to work at Mega, failed to fulfill those promises, and improperly terminated Plaintiff’s employment at Mega. Plaintiff filed a first amended complaint (“FAC”) on November 22, 2021, alleging seven causes of action for (1) intentional interference with prospective economic advantage, (2) negligent interference with prospective economic advantage, (3) unfair business practices, (4) breach of oral contract, (5) fraud and misrepresentation, (6) promissory estoppel, and (7) employment discrimination based on age. The court previously sustained Defendants’ demurrer to Plaintiff’s fifth cause of action.
TENTATIVE RULING
Plaintiff’s motion to compel the deposition testimony of Lo is DENIED.
Defendants’ motion for a protective order is GRANTED.
Lo’s deposition is ordered to be conducted by written examination pursuant to Code of Civil Procedure section 2025.420, subdivision (b)(6).
All requests for sanctions are DENIED.
LEGAL STANDARD
Motion to Compel Deposition
Code of Civil Procedure section 2025.450, subdivision (a), provides: “If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an organization that is a party under Section 2025.230, without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document, electronically stored information, or tangible thing described in the deposition notice, the party giving the notice may move for an order compelling the deponent’s attendance and testimony, and the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.”
Code of Civil Procedure section 2025.450 subdivision (b) requires that any motion under subdivision (a) set forth specific facts showing good cause and a meet and confer declaration or, when a deponent fails to attend the deposition, a declaration stating the moving party contacted the deponent to inquire about the nonappearance.
Protective Order
Code of Civil Procedure section 2025.420, subdivision (a), provides, in part: “Before, during, or after a deposition, any party, any deponent, or any other affected natural person or organization may promptly move for a protective order.” “The court, for good cause shown, may make any order that justice requires to protect any party, deponent, or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.” (Code Civ. Proc. section 2025.420, subd. (b).)
DISCUSSION
Through the present motion, Plaintiff seeks to compel Lo’s testimony while Defendant seek a protective order preventing Lo from providing an oral deposition.
Defendants provide that Lo has a severe heart condition, making his testimony for a deposition an undue burden. Defendant submits the declaration of Sarah Lo Nelson, Lo’s daughter, who provides various doctor’s notes dated from March 24, 2022, to December 14, 2022. (Nelson Decl. ¶¶1-7.) The various doctor’s notes provide that Lo suffers from a severe heart condition, is restricted driving, and should limit stress-related activities.
Defendants have established that Lo faces undue burden if compelled to testify for deposition. Plaintiff makes a strained argument that there is no burden of Lo because Plaintiff theorizes that Lo is acting as Chairman while someone else holds the title. (Opposition at p. 6:14-17.) However, none of the evidence submitted by Defendant establishes that fact. The only probative information is that counsel for Lo in a separate case refers to Lo as Chairman. That does not demonstrate that Lo would face no undue burden from being compelled to testify. Plaintiff also claims, with no supporting evidence, that Lo has resumed all activities except driving.
Further, the court has granted Lo’s motion for summary judgment and there are no pending claims against Lo.
CONCLUSION
Plaintiff’s motion to compel the deposition testimony of Lo is DENIED.
Defendants’ motion for a protective order is GRANTED.
Lo’s deposition is ordered to be conducted by written examination pursuant to Code of Civil Procedure section 2025.420, subdivision (b)(6).
All requests for sanctions are DENIED.
Judge Joel L. Lofton,
Department X
HEARING DATE: January
31, 2023 TRIAL DATE: May 9, 2023
CASE: STEPHEN HE v. MEGA
BANK, a California Corporation, EDWARD LO, an individual, WILSON NGAI, an
individual, and DOES 1 – 90, inclusive.
CASE NO.: 21GDCV00387
MOTION
FOR SUMMARY JUDGMENT
MOVING PARTY: Defendants Mega Bank, Edward Lo,
and Wilson Ngai
RESPONDING PARTY: Plaintiffs
Stephen He
SERVICE: Filed November 8, 2022, November 9, 2022,
and November 15, 2022, respectively.
OPPOSITION: Filed January 12, 2023
REPLY: Filed January 24, 2023
RELIEF
REQUESTED
Defendants move for summary judgment, or in the alternative for summary
adjudication, as to each cause of action.
BACKGROUND
This case arises out of Plaintiff Stephen He’s
(“Plaintiff”) claims that Defendants Mega Bank (“Mega”), Edward Lo (“Lo”), and Wilson
Ngai (“Ngai”) (collectively “Defendants”) pressured Plaintiff and made promises
to recruit him to work at Mega, failed to fulfill those promises, and
improperly terminated Plaintiff’s employment at Mega. Plaintiff filed a first
amended complaint (“FAC”) on November 22, 2021, alleging seven causes of action
for (1) intentional interference with prospective economic advantage, (2)
negligent interference with prospective economic advantage, (3) unfair business
practices, (4) breach of oral contract, (5) fraud and misrepresentation, (6)
promissory estoppel, and (7) employment discrimination based on age. The court previously sustained Defendants’
demurrer to Plaintiff’s fifth cause of action.
TENTATIVE RULING
Mega’s
motion for summary adjudication as to Plaintiff’s first, second, fourth, and
sixth causes of action is GRANTED.
Mega’s
motion for summary adjudication as to Plaintiff’s third and seventh cause of
action is DENIED.
Ngai and
Lo’s motion for summary judgment is GRANTED.
OBJECTION TO EVIDENCE
Plaintiff’s
objections to evidence are overruled.
Defendants’
objection to Ken Lee’s declaration is overruled.
Defendants’
objection to Stephen He’s declaration numbers 58, 59, 60, and 61 are sustained.
Defendants’ other objections to Stephen
He’s declaration are overruled.
The court
does not rule on the remainder of the objections because the court did not rely
on the evidence objected to.
LEGAL STANDARD
“The purpose of the law of summary
judgment 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. Atlantic Richfield Co.
(2001) 25 Cal. 4th 826, 843.) “A party
may move for summary judgement in an action or proceeding if it is contented
that the action has no merit or that there is no defense to the action or
proceeding.” (Code of Civil Procedure section 473c subd. (a)(1).) “The motion for
summary judgment shall be granted if all the papers submitted show that there
is no triable issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law.” (Code of Civil Procedures section
473c subd. (c).)
A three-step analysis is employed in
ruling on motions for summary judgment. First, the court identifies the issues
framed by the pleadings. Next, the court determines, when the moving party is
the defendant, whether it has produced evidence showing one or more of the
elements of the cause of action cannot be established or there is a complete
defense to that cause of action. If the defendant does so, the burden shifts to
the plaintiff to show the existence of a triable issue of material fact as to
that cause of action or defense. (Kline v. Turner (2001) 87 Cal.App.4th
1369, 1373.) The court must “view the evidence in the light most
favorable to the opposing party and accept all inferences reasonably drawn
therefrom.” (Ibid.; see also Dore
v. Arnold Worldwide, Inc. (2006) 39 Cal. 4th 384, 389 [Courts “liberally
construe the evidence in support of the party opposing summary judgment and
resolve doubts concerning the evidence in favor of that party.”].)
“A defendant moving for summary
judgment must show that one or more elements of the plaintiff's cause of action
cannot be established or that there is a complete defense. The defendant can
satisfy its burden by presenting evidence that negates an element of the cause
of action or evidence that the plaintiff does not possess and cannot
reasonably expect to obtain evidence needed to establish an essential element.
(Veera v. Banana Republic, LLC, (2016) 6 Cal.App.5th 907, 914.)
DISCUSSION
Plaintiff’s claims, and the present motions for summary judgment, can be divided
into two overarching set of factual claims. The first set of factual claims
involves Plaintiff’s assertions that Defendants made promises of a long-term
employment position at Mega. Plaintiff claims he relied on those promises but
that Defendants ultimately reneged on providing him with a long-term position. These
claims are encompassed by Plaintiff’s first, second, fourth, fifth, and sixth
causes of action.
The second set of claims involves
Plaintiff’s claims that Defendants discriminated against him on the basis of
age. These claims are encompassed by Plaintiff’s third and seventh causes of
action.
Further, in opposition, Plaintiff
makes a variety of claims that some causes of action rely on other claims, and
therefore the court organizes its analysis to address Plaintiff’s arguments.
I. PLAINTIFF’S CLAIMS
RELATING TO LONG-TERM EMPLOYMENT
On July 14, 2020, Plaintiff and Ngai discussed, over text messages, a potential
position for Plaintiff at Mega. (SSUF No. 8.) Around June 2020 Plaintiff
received an offer of employment for Small Business Association (“SBA”), and
around July 2020, Plaintiff received an offer of employment from United Pacific
Bank (“UPB”). (SSUF No. 1.) During the July 14, 2020, text messages, Plaintiff
and Ngai discussed a possible position for Plaintiff as a senior portfolio
manager. (Exhibit D at p.154:8-10.) Ngai texts Plaintiff: “Let me have your
proposal such as salary and title. I want to make sure you’re happy with the
compensation since we will be working with each other for a long time.” (Id.
at p. 154:29-30.)
Additionally, Plaintiff wrote in an
email to Ngai: Thanks for the opportunity of working with you at Mega Bank! I
agree about the long term (sic) perspective.” (Exhibit 11.) Ngai did not
address Plaintiff’s statements about a long-term perspective because he
understood the language to refer to full-time employment. (Exhibit 5 at p.
181:7-9.)
On July 21, 2022, Plaintiff and
Shirley Fu-Chang, Director of Human Resource, signed a document entitled “Offer
Letter – Mr. Stephen He”, which provided that “[i]t is further understood that
the employment relationship with Mega Bank is at-will . . ..” (Exhibit E at p.
277:12-278:6, Depo. Exhibit 19.) On August 3, 2020, Plaintiff signed a document
titled “Employment At-Will Agreement”, where he acknowledge that his
“employment with Mega Bank . . . is at-will.” (Exhibit E at p. 278:9 –
279:23, Depo. Exhibit 20.) The agreement also stated:
I acknowledge that no representations, inducements,
promises or agreements have been made, either orally or in writing, which are (sic)
contrary to the at-will provisions contained in this Agreement shall be valid
or binding.
This Agreement supersedes any and all other
agreements, either oral or written, between myself and the Bank with respect to
my employment by the Bank.
(Ibid.)
A. Sixth Cause of Action for Promissory
Estoppel
Mega
moves for summary judgment, or in the alternative for summary adjudication, for
Plaintiff’s sixth cause of action for promissory estoppel on the grounds that
Plaintiff cannot establish the existence of a promise or Plaintiff’s reliance
on that promise.
“ ‘The
elements of a promissory estoppel claim are “(1) a promise clear and
unambiguous in its terms; (2) reliance by the party to whom the promise is
made; (3) [the] reliance must be both reasonable and foreseeable; and (4) the
party asserting the estoppel must be injured by his reliance.” ’ ” (Jones v.
Wachovia Bank (2014) 230 Cal.App.4th 935, 945.)
Mega argues that Plaintiff cannot establish the
existence of a promise made to him for “long-term” employment with Mega. (FAC ¶ 123.) Mega argues that the documents signed by Plaintiff
provide that his employment with Mega would be “at-will”, rebutting any
argument that Defendants promised Plaintiff a “long-term” position. Plaintiff, in his response to Mega’s separate statement, does not
refute that he signed documents which provided that his employment with Mega
would be “at-will”. Mega further argues that any comments Defendants made
equate to preliminary discussions and are not sufficient to constitute a clear
promise to Plaintiff that he would be given a “long-term” position.
“ ‘[A]
promise is an indispensable element of the doctrine of promissory estoppel.’ ”
(Carcia v. World Savings, FSB (2010) 183 Cal.App.4th 1031, 1044.) “The
promise must, in addition, be ‘clear and unambiguous in its terms.’ ” (Ibid.) “Estoppel cannot be established from . . . preliminary discussion
and negotiations.” (National
Dollar Stores v. Wagnon (1950) 97
Cal.App.2d 915, 919.)
Mega
has shown that Plaintiff is unable to establish a clear and unambiguous promise
was made to Plaintiff for “long-term” employment with Mega. Ngai comment to
Plaintiff on July 14, 2020, that they “will be working with each other for a
long time”, when viewed in context, is a statement made during preliminary
negotiations rather than a clear promise. (Exhibit D at p. 154:29-22.) Ngai had asked Plaintiff to
send him a proposal of a possible title and salary for a position at Mega. Ngai
was seeking to obtain information to offer Plaintiff a specific position, and
his statement is more akin to a hopeful forecast of their relationship rather
than a promise for a position with Mega for a specific number of years or by
termination only for cause. Further, Plaintiff’s own comment that he agreed
about “the long term perspective” cannot be viewed as a promise from Defendants
because it was a statement he made.
The burden now shifts to Plaintiff
to raise a triable issue of material fact as to the existence of a clear
promise for a “long-term” position. Plaintiff relies on Ngai’s statement and
another statement purportedly made by Lo thanking Plaintiff for moving up his
start date and for being a “helper to the bank over a long term”. (He Decl. ¶ 34.)
Neither of these statements raise a triable issue of
fact. As previously stated, Ngai’s comment is a statement made during
preliminary negotiations. Additionally, Lo’s statement is hearsay, and even if
admissible, would not raise a triable issue of fact that a clear promise was
made to Plaintiff. Lo’s comment was a thank you for Plaintiff agreeing to start
earlier, not a promise for employment of a specific length or for termination
only for cause.
Plaintiff has failed to raise a triable issue of material
fact as to whether Defendants made him a clear and unambiguous promise. Mega’s
motion for summary judgment is granted.
B. First and Second Causes of Action for
Interference with Prospective Economic Advantage
Defendants
argue that Plaintiff is unable to establish that Defendants engaged in an
independently wrongful act to sustain his causes of action for intentional and
negligent interference with prospective economic advantage.
“ ‘The
elements of a claim of interference with economic advantage and prospective
economic advantage are: “ ‘ “(1) an economic relationship between the plaintiff
and some third party, with the probability of future economic benefit to the
plaintiff; (2) the defendant's knowledge of the relationship; (3) intentional
[or negligent] acts on the part of the defendant designed to disrupt the
relationship; (4) actual disruption of the relationship; and (5) economic harm
to the plaintiff proximately caused by the acts of the defendant.” ’ ” ’ ” (Crown
Imports, LLC v. Superior Court (2014) 223 Cal.App.4th 1395, 1404.)
“ ‘The tort
of intentional interference with prospective economic advantage is not intended
to punish individuals or commercial entities for their choice of commercial
relationships or their pursuit of commercial objectives, unless their
interference amounts to independently actionable conduct. [Citation.]’ [Citation.]
As such, courts require an additional element, that the alleged interference
must have been wrongful by some measure beyond the fact of the interference
itself.” (Crown Imports, LLC, supra, 223 Cal.App.4th at p. 1404.) “[A]n
act is independently wrongful if it is unlawful, that is, if it is proscribed
by some constitutional, statutory, regulatory, common law, or other
determinable legal standard.” (Korea Supply Co. v. Lockheed martin Corp. (2003)
29 Cal.4th 1134, 1159.) Courts have applied the independent wrongful conduct
element to claims for negligent interference with prospective economic advantage.
(See Crown Imports, LLC, supra, 223 Cal.App.4th at p. 1409; Venhaus
v. Shultz (2007) 155 Cal.App.4th 1072, 1078-90.)
Defendants argue
that Plaintiff signed a contract for at-will employment with Mega. Defendants
also argue that none of the comments they made to Plaintiff to convince him to
work at Mega are independently wrongful.
“[A] plaintiff
must plead and prove that the conduct alleged to constitute the interference
was independently wrongful, i.e., unlawful for reasons other than that it
interfered with a prospective economic advantage.” (Crown Imports, LLC
v. Superior Court (2014) 223
Cal.App.4th at p. 1404.) In Reeves
v. Hanlon (2004) 33 Cal.4th 1140, 1153,
the California Supreme Court, applying the same standard to a claim for
intentional interference with contractual relations, held “a defendant
is not subject to liability for intentional interference if the interference
consists merely of extending a job offer that induces an employee to terminate
his or her at-will employment.”
Here, Ngai
and Lo’s comments were efforts to either recruit He to work at Mega (Exhibit D at p. 154:29-22) or to thank him for advancing his start date (He Decl. ¶ 34). Defendants have shown that Plaintiff is unable to establish
an independently wrongful action.
In opposition, Plaintiff asserts that he is relying on
various legal theories to establish a wrongful act. Plaintiff argues that Mega engaged
in promissory fraud. Plaintiff also argues that Ngai and Lo engaged in
promissory fraud, promissory estoppel, and unfair business practices. Plaintiff
concedes that his FAC does not allege a cause of action for promissory fraud as
to any of the Defendants and that he does not allege that Ngai and Lo engaged
in promissory fraud or unfair business practices.
“The pleadings delimit the issues to be considered on a motion for
summary judgment. Thus, a defendant moving for summary judgment need
address only the issues raised by the complaint; the plaintiff cannot bring up
new, unpleaded issues in his or her opposing papers. To create a triable issue
of material fact, the opposition evidence must be directed to issues raised by
the pleadings. If the opposing party's evidence would show some factual
assertion, legal theory, defense or claim not yet pleaded, that party should
seek leave to amend the pleadings before the hearing on the summary judgment
motion.” (Laabs v. City of
Victorville (2008) 163 Cal.App.4th 1242, 1253, internal quotations omitted.)
Plaintiff’s attempts to assert unpled legal theories are
insufficient to raise a triable issue of material fact. Additionally, Plaintiff
again relies on Ngai’s statements, which has already been held to have not been
promise but is also not an independent wrongful act. Plaintiff has also failed to establish how Lo
asking He to “give a hand to your big brother” by moving up his start date and thanks
for being a “helper to the bank over a long term” (He Decl. ¶ 34) is a wrongful act. Further, “[i]n 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.) Lastly, the court has already found that Plaintiff
has failed to raise a triable issue of material fact as to an essential element
of his claim for promissory estoppel.
Plaintiff
has failed to raise a triable issue of material fact as to whether Defendants
engaged in an interference through an independently wrongful act. Defendants’
motion for summary judgment, or in the alternative for summary adjudication, as
to Plaintiff’s first and second causes of action is granted.
C. Fourth
Cause of Action for Breach of Oral Contract
Mega argues that Plaintiff is unable to establish the
existence of an oral contract for a “long-term” position, which is further
evinced by the fact Plaintiff signed an integrated contract for an at-will
position with Mega.
“The standard
elements of a claim for breach of contract are: ‘(1) the contract, (2)
plaintiff's performance or excuse for nonperformance, (3) defendant's breach,
and (4) damage to plaintiff therefrom. [Citation.]’ ” (Wall Street Network,
Ltd. v. New York Times Co. (2008) 164 Cal.App.4th 1171, 1178.)
It is
undisputed that Plaintiff signed various documents acknowledging that his
employment with Mega was at-will.
(Exhibit E at p. 277:12-278:6, Depo. Exhibit 19.) Plaintiff further signed a
document that provided: “This Agreement supersedes any and all other
agreements, either oral or written, between myself and the Bank with respect to
my employment by the Bank.” (Exhibit E at p. 278:9 – 279:23, Depo. Exhibit 20.)
Mega
has met its burden of showing that Plaintiff cannot establish the existence of
an oral contract for a “long-term” position at Mega.
In
opposition, Plaintiff combines his argument that Ngai had said the phrase
“long-time” (Exhibit D at p.154.)
in
their preliminary discussions, and Plaintiff had emailed Ngai “I agree about
the long term perspective” (Exhibit 11.) to seek to raise a triable issue of
fact. Plaintiff has failed to do so. Plaintiff seeks to submit the evidence to
show that an oral contract was offered by Ngai and Plaintiff accepted. However,
Ngai was not offering a “long-term” position but soliciting Plaintiff’s
preferred terms for a proposed job at Mega. Plaintiff also was not accepting
any offer but agreeing to a “long term perspective.” Plaintiff has failed to
raise a triable issue of material fact.
Mega’s motion for summary judgment, or in the
alternative for summary adjudication, as to Plaintiff’s fourth cause of action
for breach of oral contract is granted.
D. Seventh
Cause of Action for Employment Discrimination Based on Age
Mega argues that Plaintiff is unable to establish a
prima facie case for age-based discrimination.
In analyzing claims of
discrimination, including age discrimination, California courts employ the
three-stage burden-shifting McDonnell Douglas test. (Guz v. Bechtel
Nat. Inc. (2000) 24 Cal.4th 317, 354 “Guz”.) In the first stage, the
plaintiff must establish a prima facie case of discrimination, and “[g]enerally, the
plaintiff must provide evidence that (1) he was a member of a protected class,
(2) he was qualified for the position he sought or was performing competently
in the position he held, (3) he suffered an adverse employment action, such as
termination, demotion, or denial of an available job, and (4) some other
circumstance suggests discriminatory motive.” (Id. at 355.) If the
plaintiff establishes a prima facie case, the presumption of discrimination
arises. (Ibid.) The burden then shifts to the employer to rebut the
presumption by producing evidence “that its action was taken for a legitimate,
nondiscriminatory reason.” (Id. at pp. 355-56.)
“If the
employer sustains this burden, the presumption of discrimination
disappears. [citation] The plaintiff must then have the opportunity to attack the
employer's proffered reasons as pretexts for discrimination, or to offer any
other evidence of discriminatory motive.” (Guz, supra, 24 Cal.4th
at p. 356.) “The ultimate burden of persuasion on the issue of actual
discrimination remains with the plaintiff.” (Ibid.)
Mega points
to Plaintiff’s deposition testimony where he stated that no one made any derogatory
comments regarding his age. (Exhibit E at pp. 269:25-270:8.) Further, Plaintiff
stated that the basis of his claim was the fact that Mega hired a younger
employee to replace him. (Id. at p. 269:20-21.) Mega hired Ksiwen Chen
(“Chen”), who was 41, on December 1, 2020, for the role of the SVP/Senior
Credit Officer. (SSUF Nos. 31-32.)
Plaintiff
has established a prima facie case for age discrimination. Plaintiff is 57
years old. (SSUF No 30.) Plaintiff states he was qualified and experienced to
do the work assigned to Chen. (He Decl. ¶ 51.) Plaintiff suffered adverse employment action when he was
terminated from his employment with Mega. (SSUF No. 25.) Mega hired an employee
who was 16 years younger than Plaintiff. (SSUF No. 31.) Although Mega argues
that hiring a younger employee is insufficient, the logical inference of age
discrimination may arise where the replacement employee is significantly
younger, even if not below the statutorily protected age. (Guz, supra, 24
Cal.4th at p. 366, citing O’Connor v. Consolidated Coin Caterers Corp. (1996)
517 U.S. 308.)
Defendants provide declarations that state that the
decision to terminate Plaintiff’s employment with Mega was part of an attempt
to restructure after Fong became the new President. (Fong Decl. ¶3.) Chen was purportedly
hired for a newly created position of Senior Vice President/Senior Credit
Officer. (Id. ¶ 5.) Chen was responsible for Plaintiff’s
responsibilities as well as new additional tasks at Mega. (Ibid.)
In opposition, Plaintiff seeks to establish that Mega’s
stated reason was pretextual. First, Plaintiff points to evidence that
Defendants failed to present the restructuring plan to the board of directors. (P’s
SSUF No. 47-48.) However, none of the evidence submitted by Plaintiff
establishes that board approval was a prerequisite to a restructuring plan. Plaintiff
also argues that although Ngai stated that Defendants did not believe Plaintiff
was qualified to complete the additional job duties (Ngai Decl. ¶ 7), Ngai did
not review Chen’s resume until after Plaintiff was terminated. However, this
does not establish that the Defendants’ decision was pretextual. Defendants
could have independently determined that Plaintiff was unqualified and decided
to hire Chen later. Further, this argument does not address the stated reason
that Mega had sought to restructure.
Plaintiff also argues that there was no restructuring
because only his position was changed. (P’s SSUF No. 54.) Here, based on the
fact that only Plaintiff’s position was part of the purported “restructure” and
Mega hired an employee 16 years younger than Plaintiff, there is a triable
issue of material fact as to whether Plaintiff faced age-based discrimination. The court must “view the
evidence in the light most favorable to the opposing party and accept all
inferences reasonably drawn therefrom.” (Ibid.; see also Dore v. Arnold Worldwide, Inc. (2006) 39
Cal. 4th 384, 389 [Courts “liberally construe the evidence in support of the
party opposing summary judgment and resolve doubts concerning the evidence in
favor of that party.”].)
E. Third
Cause of Action for Unfair Business Practices
Plaintiff’s eighth cause of action
asserts a violation of the unfair competition laws (“UCL”). (Bus. & Prof.
Code section 17200 et seq.) “The UCL prohibits, and provides civil remedies for, unfair
competition, which it defines as ‘any unlawful, unfair or fraudulent business
act or practice.’” (Kwikset Corp. v. Superior Court (2011) 51 Cal.4th
310, 320.)
Here,
Plaintiff’s UCL claims are predicated on his other causes of action. However,
because Plaintiff’s seventh cause of action survives, so to does Plaintiff’s
UCL claim.
CONCLUSION
Mega’s
motion for summary adjudication as to Plaintiff’s first, second, fourth, and
sixth causes of action is GRANTED.
Mega’s
motion for summary adjudication as to Plaintiff’s third and seventh cause of
action is DENIED.
Ngai and
Lo’s motion for summary judgment is GRANTED.
Moving Party
to give notice
Dated: January 31,
2023 ___________________________________
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