Judge: John C. Gastelum, Case: 21-01205850, Date: 2023-05-24 Tentative Ruling
Motion for Summary Judgment and/or SAI
Tentative Ruling: Defendant Orange County British Motorcars, LLC (“Defendant”) moves for summary judgment or, in the alternative, summary adjudication against Plaintiff James Marutsos (“Plaintiff”). For the reasons set forth below, the Motion for Summary Judgment is GRANTED.
Request for Judicial Notice
Defendant requests judicial notice of the following facts:
1. In 2019 the state minimum wage in California for employers of 26 or more employees was $12.00 per hour; and
2. In 2020 the state minimum wage in California for employers of 26 or more employees was $13.00 per hour.
The request for judicial notice is GRANTED under Evidence Code section 452(h).
Issue Nos. 3, 5-7 - Second Cause of Action for Unpaid Overtime, Fourth Cause of Action for Itemized Wage Statement Violations, Fifth Cause of Action for Waiting Time Penalties, Sixth Cause of Action for Failure to Produce Employment File and Seventh Cause of Action for Failure to Produce Wage Records
Plaintiff does not dispute these issues in his Opposition. Thus, the Court deems Plaintiff to have abandoned these issues (Herzberg v. County of Plumas (2005) 133 Cal.App.4th 1, 20) and the Motion for Summary Adjudication is GRANTED as to these issues.
Issue No. 10 – Attorney Fees and Costs
This issue is listed in the Notice of Motion but not addressed in the Memorandum of Points and Authorities. The failure to include a supporting memorandum on this issue violates CRC Rule 3.1113(a). Further, no material facts included in Defendant’s Separate Statement relate to the issue of attorney fees and costs. The Court exercises its discretion to decline to consider any evidence not referenced in the Separate Statement. (San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A. (2002) 102 Cal.App.4th 308, 316.) Thus, the Motion is DENIED as to this issue.
Issue Nos. 1 and 2 - First Cause of Action for Wrongful Termination
Defendant argues Plaintiff’s first cause of action fails because Plaintiff was an at-will employee who could be terminated at any time, there is no evidence of retaliation and Defendant had a legitimate reason for his termination, and Plaintiff has no evidence of engaging in any protected activity or pretext.
“The elements of a claim for wrongful discharge in violation of public policy are (1) an employer-employee relationship, (2) the employer terminated the plaintiff’s employment, (3) the termination was substantially motivated by a violation of public policy, and (4) the discharge caused the plaintiff harm.” (Yau v. Allen (2014) 229 Cal.App.4th 144, 154.). “Under California law, if an employer did not violate FEHA, the employee’s claim for wrongful termination in violation of public policy necessarily fails.” (Featherstone v. Southern California Permanente Medical Group (2017) 10 Cal.App.5th 1150, 1169.)
“To establish a prima facie case of retaliation, the plaintiff must show (1) he or she engaged in a protected activity; (2) the employer subjected the employee to an adverse employment action; and (3) there exists a causal link between the protected activity and the employer's action.” (Colarossi v. Coty US Inc. (2002) 97 Cal.App.4th 1142, 1152.) “[Defendant has] the initial burden to either (1) negate an essential element of [Plaintiff’s] prima facie case [] or (2) establish a legitimate, non[retaliatory] reason for terminating [Plaintiff].” (Wills v. Superior Court (2011) 195 Cal.App.4th 143, 160.) “[T]o avoid summary judgment [once the employer makes the foregoing showing], an employee claiming [retaliation] must offer substantial evidence that the employer’s stated non[retaliatory] reason for the adverse action was untrue or pretextual, or evidence that the employer acted with a [retaliatory] animus, or a combination of the two, such that a reasonable trier of fact could conclude the employer engaged in intentional [retaliation].” (Ibid.)
It is undisputed that Plaintiff acknowledged and agreed that he was an at-will employee. (Separate Statement of Undisputed Material Facts (“SSUMF”), Nos. 7, 13, 15.) On May 13, 2020, he received a written warning for failing to create a repair order before service was performed on a customer’s vehicle and acknowledged that further occurrences would result in disciplinary action that may include termination. (SSUMF, Nos. 20-21.)
On October 13, 2020, Plaintiff was terminated for failing to follow the proper process of creating a Repair Order before instructing a technician to look at a car. (Defendant’s Compendium of Evidence (“DCOE”), Ex. 8 to Exhibit A1 [Plaintiff’s Deposition].) The Court finds that Defendant has established a legitimate, non-retaliatory reason for terminating Plaintiff.
Plaintiff disputes that his termination was due to the failure to follow proper Repair Order policy. He relies on the declaration of fellow client advisors and a financial manager who assert that they are unaware of any employees being terminated for not entering a repair order correctly other than Plaintiff. (Declaration of Angel Jin, ¶ 5; Declaration of Steven Witjaksono, ¶ 11; Declaration of Theodore Esquer, ¶ 6.) He also testified that he did not take the car back to the shop and it was the technician who had done so. (Plaintiff’s Compendium of Evidence (“PCOE”), Ex. 5, 109:21-110:9.) None of this evidence, however, shows negates the fact that work was performed on the vehicle before Plaintiff created a repair order. Thus, Plaintiff has not shown that the stated reason for termination was factually untrue.
Plaintiff contends the stated reason for termination was pretextual and that he was terminated because the dealership wanted a young female in his position and he did not fit the demographic the dealership was going after as a 52-year-old man. However, other than his own deposition testimony, Plaintiff has provided no evidence in support of this contention. Mr. Witjaksono states in his declaration that brand manager Kellyn Dixon expressed a desire to “team up” against Plaintiff and complained that Plaintiff was a poor performer on the sales floor and that she and Frank Avena made a “concerted effort” to find reasons to terminate Plaintiff. (Witjaksono Decl., ¶¶ 6, 11.) This does not rise to the level of substantial evidence that shows the stated reason for termination was pretextual. Mr. Witjaksono’s assertion that there was a concerted effort to find reasons to terminate Plaintiff is not supported by any concrete facts. Further, there is no evidence that Mr. Avena intended to terminate Plaintiff because he wanted to fill his position with a younger, female employee. Thus, Plaintiff has failed to raise a triable issue of material fact and summary adjudication as to Issue No. 1 is GRANTED.
Issue No. 4 - Third Cause of Action for Premium Pay for Failure to Provide Meal and Rest Breaks
Defendant seeks summary adjudication as to the third cause of action on the grounds that Defendant undisputedly provided him the freedom to take meals as he desired, Plaintiff admits Defendant never prevented or discouraged him from take a meal or rest break, and his time records demonstrate he took a lunch on a vast majority of his shifts and most of his lunches were for almost an hour.
Plaintiff asserts that there is a triable issue of fact because many times had to work through lunch because no one was available to cover his shift and Mr. Avena testified that Plaintiff would forego his rest breaks to cover for Mr. Avena when he would leave the dealership for an excessive amount of time.
An employer must relieve the employee of all duty for the designated period, but need not ensure that the employee does no work. (Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1034, 1040.) An employer satisfies its duty to provide meal periods “if it relieves its employees of all duty, relinquishes control over their activities and permits them a reasonable opportunity to take an uninterrupted 30-minute break, and does not impede or discourage them from doing so.” An employer is not required, however, “to police meal breaks and ensure no work thereafter is performed.” (Ibid.)
It is undisputed that no employee ever told Plaintiff he could not take a meal break or rest break and no employee ever prevented Plaintiff from taking a meal break. (SSUMF, Nos. 99-101.) It is also undisputed that his time records indicate he punched out for lunches on the vast majority of his workdays. (SSUMF, No. 107.)
Plaintiff attempts to raise a triable issue of fact by pointing to the testimony of Mr. Avena that Plaintiff would cover for Mr. Avena and Ms. Dixon when Plaintiff was on shift. (PCOE, Ex. 7, 93:2-12.) Mr. Avena also testified that Ms. Dixon would also cover Plaintiff when Plaintiff went to lunch. (Ibid.) This evidence does not show that Plaintiff was ever denied or meal or rest break and Plaintiff admits that no employee ever prevented him from taking a lunch. Thus, the Motion for Summary Adjudication is GRANTED as to Issue No. 4.
Issue No. 9 - Punitive Damages
Defendant contends punitive damages and emotional distress damages are not authorized by sections 226 or 1198.5 and there are no allegations that rise to the level of indignity for an award of punitive damages.
As discussed above, summary adjudication is GRANTED in Defendant’s favor as to all the causes of action asserted in the operative FAC. Thus, summary adjudication as to punitive damages is also GRANTED, as there are no viable causes of action against Defendant that could support a punitive damages claim.
Considering the above, the Court GRANTS Defendant’s Motion for Summary Judgment.
Defendant to prepare order and judgment.
Defendant to give notice.