Judge: Joel R Wohlfeil, Case: 37-2020-00033548-CU-WT-CTL, Date: 2024-02-16 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - February 13, 2024

02/16/2024  09:00:00 AM  C-73 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Joel R. Wohlfeil

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Civil - Unlimited  Wrongful Termination Summary Judgment / Summary Adjudication (Civil) 37-2020-00033548-CU-WT-CTL CHAN VS GEN 5 FERTILITY CENTER PC [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion for Summary Judgment and/or Adjudication, 11/22/2023

The Motion (ROA # 118) of Defendant Gen 5 Fertility Center, P.C. ('Defendant' or 'GEN 5') for an Order for summary judgment or, alternatively, for summary adjudication of each cause of action and the demand for punitive damages by Plaintiff Zhiyun Chan ('Plaintiff' or 'CHAN'), is DENIED.

This ruling is based on the analysis set forth below.

Plaintiff's Request (ROA # 129) for judicial notice is GRANTED IN PART and DENIED IN PART. The Court takes judicial notice of Exh's 'B' and 'D' and the date only on which Exh. 'A' was filed with the Court; otherwise, the Request is DENIED.

Plaintiff's evidentiary objections (ROA # 132, 133) are OVERRULED.

Defendant's evidentiary objections (ROA # 140) are OVERRULED.

1st COA: WHISTLEBLOWER RETALIATION 'An employer ... shall not retaliate against an employee for disclosing information ... to a person with authority over the employee ... if the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation, regardless of whether disclosing the information is part of the employee's job duties.' Lab. Code 1102.5(b).

'An employer ... shall not retaliate against an employee for refusing to participate in an activity that would result in a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation.' Id. at (c).

'In a civil action ... brought pursuant to Section 1102.5, once it has been demonstrated by a preponderance of the evidence that an activity proscribed by Section 1102.5 was a contributing factor in the alleged prohibited action against the employee, the employer shall have the burden of proof to demonstrate by clear and convincing evidence that the alleged action would have occurred for legitimate, independent reasons even if the employee had not engaged in activities protected by Section 1102.5.' Lab. Code 1102.6.

Section 1102.6 supplies the applicable framework for litigating and adjudicating section 1102.5 whistleblower claims. Lawson v. PPG Architectural Finishes, Inc. (2022) 12 Cal. 5th 703, 712.

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3048252 CASE NUMBER: CASE TITLE:  CHAN VS GEN 5 FERTILITY CENTER PC [IMAGED]  37-2020-00033548-CU-WT-CTL 'First, it must be 'demonstrated by a preponderance of the evidence' that the employee's protected whistleblowing was a 'contributing factor' to an adverse employment action .... Then, once the employee has made that necessary threshold showing, the employer bears 'the burden of proof to demonstrate by clear and convincing evidence' that the alleged adverse employment action would have occurred 'for legitimate, independent reasons' even if the employee had not engaged in protected whistleblowing activities.' Id. Section 1102.6 requires whistleblower plaintiffs to show that retaliation was a 'contributing factor' in their termination, demotion, or other adverse action. Id. at 713.

This means Plaintiff may satisfy his burden of proving unlawful retaliation even when other, legitimate factors also contributed to the adverse action. Id. at 713, 714.

A 'contributing factor' includes any factor, which alone or in connection with other factors, tends to affect in any way the outcome of the decision. Id. at 714 (quoting Rookaird v. BNSF Railway Company (9th Cir. 2018) 908 F. 3d 451, 461).

Under section 1102.6, Plaintiff does not need to show that the employer's nonretaliatory reason was pretextual. Id. at 715, 716.

Even if the employer had a genuine, nonretaliatory reason for its adverse action, Plaintiff still satisfies the burden if it is shown that the employer also had at least one retaliatory reason that was a contributing factor in the action. Id. at 716.

To the contrary, placing this unnecessary burden on Plaintiff would be inconsistent with the Legislature's evident purpose in enacting section 1102.6: encouraging earlier and more frequent reporting of wrongdoing by employees and corporate managers when they have knowledge of specified illegal acts by expanding employee protection against retaliation. Id. A retaliatory motive can be proved by showing that Plaintiff engaged in protected activities, that the employer was aware of the protected activities and that the adverse action followed within a relatively short time thereafter. Morgan v. Regents of University of Cal. (2000) 88 Cal. App. 4th 52, 69.

The causal link may be established by an inference derived from circumstantial evidence, such as the employer's knowledge that the employee engaged in protected activities and the proximity in time between the protected action and the alleged retaliatory employment decision. Id. Essential to a causal link is evidence that the employer was aware that Plaintiff had engaged in the protected activity. Id. at 70.

Disputed facts exist demonstrating that Clinical Director Jenny Liu participated in the decision to terminate Plaintiff. Separate Statement no. 46.

Disputed facts also exist demonstrating that Plaintiff complained about what she perceived to be illegal conduct (forged patient signatures). It is disputed whether this complaint was immediately communicated to Jenny Liu through another employee. Additional Fact nos. 12 - 22.

Although a casual link may be established by the proximity in time between the protected action and the retaliatory employment decision, the lack of this proximity does not necessarily prevent the finding of a casual link. The fact that a year elapsed could weaken Plaintiff's theory of liability, but does not negate the disputed facts. This is ultimately a question for a trier of fact.

Defendant also argues it terminated Plaintiff's employment for legitimate, independent reasons.

Defendant provides evidence supporting this alternative, non-retaliatory reason for the termination.

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3048252 CASE NUMBER: CASE TITLE:  CHAN VS GEN 5 FERTILITY CENTER PC [IMAGED]  37-2020-00033548-CU-WT-CTL However, as discussed above, it is disputed whether Clinical Director Jenny Liu participated in the decision to terminate Plaintiff. It is also disputed whether any legitimate reason was, in fact, independent and not retaliatory. Even if a legitimate reason does exist, it remains disputed whether the retaliatory reason was also a contributing factor.

For all the reasons discussed above, summary adjudication of this cause of action is denied.

2nd COA: WRONGFUL TERMINATION This cause of action is based on the same alleged retaliatory termination. Thus, summary adjudication of this cause of action is also denied.

Claim for Punitive Damages The claim for punitive damages is based on the commission of the alleged illegal and retaliatory termination, as discussed above. Thus, summary adjudication of the claim for punitive damages is also denied.

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