Judge Jon R. Takasugi, Case BC705546 2022-12-15 Tentative Ruling

On 5/8/2018, Plaintiff J.K filed suit against Charter Communications, Inc., Charter Communications, LLC, and Frank Hernandez alleging 17 causes of action.

On 3/18/2019, J.K filed a cross-complaint Charter Communications, Inc., Charter Communications, LLC, and Frank Hernandez, alleging: (1) indemnity under Labor Code; (2) Indemnity under Corporations Code; (3) declaratory relief; (4) defamation; (5) failure to pay vacation (unused floating holiday) on termination; (6) failure to pay all wages due; (7) Private Attorney General Claim (PAGA); and (8) Business and Professions Code section 17200.

Now, Defendants and Cross-Defendant Charter Communications, Inc.’s and Charter Communications, LLC (collectively, Defendants) move for summary adjudication of claims 1-9 and cross-claim 9.

In granting or denying a motion for summary judgment or summary adjudication, the court need rule only on those objections to evidence that it deems material to its disposition of the motion. Objections to evidence that are not ruled on for purposes of the motion shall be preserved for appellate review.

In light of this section, the Court declines to rule on the submitted objections.

Defendants argue that Plaintiff’s harassment, discrimination, and retaliation claims based on sex, age, and medical condition are barred because Plaintiff failed to exhaust administrative remedies. More specifically, Defendants contended that the 4/30/2018 DFEH charged filed by Plaintiff: “(1) fails to set forth any facts at all regarding sex; (2) says nothing about age (instead containing only a lone, time-barred reference to his substantial sales experience); and (3) identifies his medical condition as diabetes, which is not a statutorily protected “medical condition” (and again relies on conduct that is indisputably time barred).” (Motion, 1: 19-20)

Because, for the reasons set forth below, the Court concludes that these claims fail on the merits, the Court does not address whether or not the claims would be otherwise barred.

Defendants argue that, even setting aside the jurisdictional bar, Plaintiff’s claims based on sex, age, and, medical condition fail on substantive grounds.

As for sex, Defendants argue that Plaintiff’s Complaint does not contain any factual allegations based on sex. Moreover, during deposition, Plaintiff himself stated, “I don’t think I was discriminated [against] because I was a guy.” (SS ¶ 69.)

As for age, Plaintiff stated during deposition that there was no discriminatory motive based on age:

Q: Do you think that—that the reason that—they’ve terminated you had anything to do with your age?

Moreover, Defendant submitted evidence that he was not replaced at all, and thus Plaintiff cannot show that he was replaced by a younger person.

As for medical condition, Defendants argues that his DFEH charge is based on the medical condition of diabetes, and that diabetes is not a medical condition protected by FEHA.[1] (See Cal. Govt. Code § 12926.) To the extent that Plaintiff’s claim is based on a bipolar diagnosis, this was not included in the DFEH charge. Moreover, Defendants submitted evidence that Plaintiff’s bipolar disorder was not disclosed to Charter until after it had already made the decision to terminate him. (SS ¶ 70.)

Finally, Defendants submitted evidence that, even assuming Plaintiff could state a prima facie case, Defendants had legitimate non-discriminatory reasons for terminating him. More specifically, Defendants submitted evidence that:

- On October 13, 2016, a potential Charter customer called the police on Plaintiff for harassment. (SS ¶ 17.)

- On October 18, 2016, Plaintiff made a racist remark to a coworker. (SS ¶ 18.)

- In response to Plaintiff’s October 18, 2016 racist remark, Plaintiff’s supervisor (Guy Nelson) reviewed Charter’s Code of Conduct with Plaintiff. (SS ¶ 19.)

- On January 6, 2017, Guy Nelson took his DSR team to lunch at a Jimmy John’s restaurant. (SS ¶ 20.)

- During the Jimmy John’s lunch outing on January 6, 2017, Plaintiff and Nelson got into a heated, face-to-face altercation, loudly screaming at each other. (SS ¶ 21.)

- Regarding the altercation with Nelson at Jimmy John’s, Plaintiff admitted that he “started all of this” when he “started yelling” in Nelson’s face.” (SS ¶ 22.) Another of Plaintiff’s DSR team members confirmed that Plaintiff instigated the altercation between Plaintiff and Nelson at Jimmy John’s. (SS ¶ 23.)

- Raul Salcedo investigated the January 6, 2017 altercation between Nelson and Plaintiff, including interviewing Plaintiff, Nelson, and the other DSR team members. (SS ¶ 26.)

- As a result of his investigation, Salcedo recommended termination for both Nelson and Plaintiff. (SS ¶ 29.)

- Following Salcedo’s investigation, Charter accepted Salcedo’s recommendation to terminate Nelson (who was held to a higher standard as a supervisor). (SS ¶ 32.)

- Following Salcedo’s investigation, on March 3, 2017, Charter gave Plaintiff another chance to rectify his behavior and issued him a Final Written Warning (“FWW”) in lieu of termination. (SS ¶ 33.)

- Plaintiff’s FWW warned Plaintiff “that further violations of company policies will lead to termination of employment.” (SS ¶ 34.)

- On April 14, 2017, Plaintiff was heard screaming “fuck you, fuck you, you’re a fucking bitch, fuck you, fuck you” on a business conference call involving 50+ employees. (SS ¶ 37.)

- Charles Perez, who was hosting the April1 4, 2017 conference call, tried to stop Plaintiff from swearing but could not be heard over Plaintiff’s tirade. After Perez was finally able to get Plaintiff’s attention, he informed Plaintiff that they would privately discuss the incident after the call. After Perez told Plaintiff that they would privately discuss the incident after the call, Plaintiff disrupted the call for several more minutes trying to explain himself—stating that a fast-food salesclerk had messed up his order. (SS ¶ 40.)

- Caldwell investigated the April 14, 2017 conference call incident following Perez’s report of it, asking Plaintiff about his behavior, to which Plaintiff responded, “he was angry with a salesclerk.” (SS ¶ 41.)

- On May 1, 2017, Caldwell recommended Plaintiff’s termination and forwarded his investigative report and termination paperwork for approval. (SS ¶ 42.)

- On May 4, 2017, while Charter was finalizing Plaintiff’s termination, he physically struck and injured a supervisor, Hernandez. (SS ¶ 43) The incident occurred after Hernandez overheard Plaintiff complaining to Perez about his tablet, offered to assist, and resolved the technical issue. (SS ¶ 45.)

- Plaintiff struck Hernandez hard enough to cause Hernandez’s glasses to fly from his face and the incident was described by a witness as “violent.” Hernandez was taken to a medical clinic for evaluation, resulting in a diagnosis of an upper thorax contusion due to being “assaulted by a blunt object.” (SS ¶ 50.)

- On the morning of May 5, HR Generalist (Cathe Anderson), HR Director (Stacia Erway), VP of Sales (Amanda Field), and Senior Sales Director (Gabriela Borrego) formally approved Plaintiff’s termination by 11:53 a.m. (SS ¶ 69.)

Defendant’s evidence supports a reasonable inference that Plaintiff cannot establish his claims based on sex, age, and medical condition .

As a preliminary matter, the Court notes that Plaintiff’s opposition is very difficult to follow. It also violates rules about formatting and page formatting. (See Rule 3.1113(d).)

Moreover, Plaintiff has failed to set forth evidence which could show a triable issue of material fact.

As for sex, Plaintiff argues that he was stereotyped as an “out of shape male with no muscles” and as “aggressive” and “angry.” However, the only evidence cited in support was a call in which Plaintiff was asked whether he was “trying to show off strength” through his conduct through Hernandez, and an occurrence in “April or the start of May” where Plaintiff was told to get up and let a female employee sit down by the computer. Plaintiff stated that “And the way he ordered me to that [sic] without saying please and asking me was extremely rude.’ (SS ¶ 74.) Plaintiff does not submit any evidence which could show a causal connections between these events and his termination. More importantly, Plaintiff does not submit any evidence which could dispute Defendant’s evidence of the events that resulted in his termination. As such, Plaintiff has not submitted any evidence that could support a reasonable inference to show any animus based on sex as to any of Plaintiff’s claims, nor has Plaintiff submitted any evidence which could support a reasonable inference that the reasons offered for his termination were pretextual.

As for age, the only evidence submitted by Plaintiff to show discriminatory animus based on his age was a comment made by Mark Caldwell noting that their sales team had almost 100 years of sales experience combined. (SS ¶ 35.) Plaintiff contends that this was a backhanded age-comment. However, [S]ubjective feelings or beliefs are not sufficient to support a discrimination claim. They are simply speculation, or at best, conclusions—not competent evidence from which a jury could find discrimination.” (Diego v. City of L.A. (2017) 15 Cal. App. 5th 338, 356.) As such, Plaintiff’s subjective feeling that this comment was, in fact, a backhanded insult about Plaintiff’s age is insufficient to support a reasonable inference of age discrimination, harassment, or retaliation. Moreover, Plaintiff did not submit any evidence which could show a causal connection between this comment and Plaintiff’s termination, nor did Plaintiff submit any evidence which could show that the proffered reasons for his termination were pretextual.

Finally, as for medical condition, Plaintiff argues that Defendant had actual or constructive notice of Defendant’s bipolar disorder. As for actual notice, Plaintiff argues that Defendant had notice of his bipolar disorder as early as January 2017 from “Guy Nelson’s letter.” However, the letter makes no mention of a bipolar diagnosis and does not support an inference that Defendant had actual notice of Plaintiff’s disability. As for constructive notice, Plaintiff argues that Defendant should have been on constructive notice of Plaintiff’s disability. The only evidence offered in support is that Defendant admitted that Plaintiff was known to be “loud,” “impatient”, and needed to “perform at his own speed.” However, the only case law offered to show that this evidence is sufficient to put Defendant on constructive notice that Plaintiff suffers from bipolar disorder are non-California based federal decisions which the Court cannot rely upon. However, even setting this aside, Plaintiff has not submitted any evidence to show that Defendant’s proffered reasons for terminating him are pretext for discriminatory animus based on Plaintiff’s bipolar disorder.

Defendants argue that Plaintiff’s disability claims fail because: (1) Plaintiff was not disabled within the meaning of FEHA; (2) he cannot show a causal link between his disability and any protected activity; and (3) he cannot show that his termination was pretextual.

As for diabetes, in a Form Interrogatory, Defendants asked Plaintiff if there were any communications between the employee (or the employee’s healthcare provider) and the employer about the type or extent of any disability of employee. Plaintiff responded: “Plaintiff advised management or Human Resources. For example, Plaintiff explained why he ordered water at lunch which resulted in abuse by Guy Nelson.” (SS ¶ 71.) In other words, the only basis Plaintiff has identified for Defendants knowing of his prediabetic condition is a single conversation with a coworker at lunch wherein Plaintiff explained that he ordered a water instead of a soda because he was prediabetic. Moreover, when asked about this response in deposition, Plaintiff stated that he could not remember whether or not he had brought up the fact that he was prediabetic.

While Court disagrees with Defendants contention that diabetes can never, as a matter of law, constitute a disability within the meaning of FEHA, the Court agrees that this evidence supports a reasonable inference that Plaintiff’s prediabetic condition was not a disability within the meaning of FEHA, and that Defendants had no notice of Plaintiff’s prediabetic condition. Moreover, Defendants evidence supports a reasonable inference that Plaintiff never made any request for accommodation, nor was there any notice that the interactive process was required to be initiated.

As for Plaintiff’s bipolar disorder, Defendants submitted evidence that Plaintiff did not disclose his bipolar disorder to HR until 5/5/2017, after Charter had already made the decision to terminate him. (SS ¶¶ 61-64.)

Finally, as set forth above, Defendants have submitted evidence that they have legitimate, non-discriminatory reasons for Plaintiff’s termination.

In opposition, Plaintiff did not submit evidence which supports a reasonable inference that Defendant was on notice of Plaintiff’s bipolar diagnosis. Moreover, even assuming it was, Plaintiff has not submitted evidence that he made any other request for accommodation other than a request for medical leave on 5/5/2017. While Plaintiff disputed this fact in his separate statement “as to any inference of compliance with FEHA and FEHA regulations,” Plaintiff did not submit any evidence to show that Plaintiff ever made any other accommodations requests, or that Defendant should have been on notice of the need to engage in the interactive process.

To show harassment, Plaintiff must prove: (1) he is a member of a protected group; (2) he was harassed because he belonged to this group; and (3) the alleged harassment was so severe that it created a hostile work environment. (Aguilar v. Avis Rent A Car Sys. (1999) 21 Cal. 4th 121, 129-31. (citations omitted). To show a hostile work environment, Plaintiff must prove the harassment was so severe and pervasive “as to alter the conditions of employment and create an abusive working environment” and that it “would have interfered with a reasonable employee’s work performance and would have seriously affected the psychological well-being of a reasonable employee.” (Id. at p. 139.) Also, the “harassment cannot be occasional, isolated, sporadic, or trivial; rather the plaintiff must show a concerted pattern of harassment of a repeated, routine or a generalized nature.” (Id. (citations omitted).)

Here, Defendant argues that Plaintiff cannot show a triable issue as to a hostile environment, nor any harassment “because of” any protected status. The Court agrees.

As for age, Plaintiff based his harassment claim on the contention that his manager Caldwell said “You know, I’m looking at the sales force here and we almost have a century worth of experience. Thank you very much Mr. Kelley,” and “everybody laughed at me.” (SS ¶ 74.) The only evidence to show that this isolated comment was so severe and pervasive as to create a hostile work environment is that Plaintiff felt “pretty bad about it.” This fails as a matter of law to support a reasonable inference of hostile work environment. (Cornell v. Berkeley Tennis Club (2017) 18 Cal. App. 5th 908, 940.)

As for gender, Plaintiff’s evidence that he was ordered to allow a female employee to sit down at the computer in an “extremely rude manner” fails as a matter of law to support a reasonable inference of harassment based on gender.

Based on the foregoing, Defendants’ motion for summary adjudication is granted.

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org. If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative. If all parties to a motion submit, the court will adopt this tentative as the final order. If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar.

Due to Covid-19, the court is strongly discouraging in-person appearances. Parties, counsel, and court reporters present are subject to temperature checks and health inquiries, and will be denied entry if admission could create a public health risk. The court encourages the parties wishing to argue to appear via L.A. Court Connect. For more information, please contact the court clerk at (213) 633-0517. Your understanding during these difficult times is appreciated.

[1] The Court disagrees with the contention that diabetes can never, as a matter of law, constitute a medical condition protected by FEHA. However, the Court agrees that Plaintiff’s submitted evidence fails to support a reasonable inference that Plaintiff’s prediabetic condition rose to the level of a protected disability under FEHA. However, because this issue is not determinative in any way of the conclusions reached here, the Court does not elaborate on this issue.

On 5/8/2018, Plaintiff J.K filed suit against Charter Communications, Inc., Charter Communications, LLC, and Frank Hernandez.

Now, Defendants and Cross-Defendant Charter Communications, Inc.’s and Charter Communications, LLC (collectively, Defendants) move for summary adjudication as to cross-claim 4.

Defendants argue that Plaintiff’s claim for defamation against Charter fails because: (1) Plaintiff has no evidence of a published defamatory statement by Charter; and (2) any alleged statement is barred by the “common interest” privilege.

The elements of a defamation claim are (1) a publication that is (2) false, (3) defamatory, (4) unprivileged, and (5) has a natural tendency to injure or causes special damage. (See Wong v. Tai Jing (2010) 189 Cal.App.4th 1354, 1369.)

Statements of facts are actionable, while statements of opinion are not. (See Wong v. Tai Jing (2010) 189 Cal.App.4th 1354, 1369.) However, “where an expression of opinion implies a false assertion of fact, the opinion can constitute actionable defamation.” (Id. at 1370.) “The critical question is not whether a statement is fact or opinion, but ‘whether a reasonable fact finder could conclude the published statement declares or implies a provably false assertion of fact.’” (Id. (quoting McGarry v. University of San Diego (2007) 154 Cal.App.4th 97, 113).) “‘To determine whether a statement is actionable fact or nonactionable opinion, courts use a totality of the circumstances test of whether the statement in question communicated or implies a provably false statement of fact.’” (Id. (quoting McGarry, supra, 154 Cal.App.4th at 113).)

“[T]he determination of whether the allegedly defamatory statement constitutes fact or opinion is a question of law.” (Selleck v. Globe International, Inc. (1985) 166 Cal.App.3d 1123, 1133.)

- Plaintiff admits he has no knowledge or information of any published defamatory statements by Hernandez (or anyone else), which is fatal to his claim. (SSUF ¶ 15.)

- Plaintiff bases his claim on “inform[ation] and belie[f]” and admittedly cannot identify the substance of any purported defamatory statement, has no proof that any communication was published, is not aware of any evidence supporting his claim, and suffered no damages based on any alleged statement by Charter. (Am. Cross-Compl. ¶ 29; SSUF ¶¶ 14-17.)

Defendant’s evidence supports a reasonable inference that Plaintiff cannot state a claim. Accordingly, the burden shifts to Plaintiff to disclose a triable issue of material fact.

In opposition, Plaintiff argues that “Ds present no evidence that each of the Ds agents did not publish or republish defamatory statements with malice, including Sr. Director Gabriella Borrego, Sales manager Stephen Mark Caldwell, and HR Catherine Anderson. None of the other offered manager/supervisor declarations, even conclusory, assert they acted with a lack of malice to shift the burden to P. (Comp. D, Erway Dec., F. Perez Decl., G, Hernandez Decl.)” (Opp., 5: 17-31.)

In so arguing, Plaintiff seems to misunderstand the burdens of proof. Here, Defendant has submitted evidence that Plaintiff cannot state a prima facie claim for defamation because he has not identified any defamatory statement, and Plaintiff admitted in deposition that he had no knowledge or information that any published defamatory statements were made. In order to state a prima facie claim for defamation, “the allegedly defamatory statement must be specifically identified, and the plaintiff must plead the substance of the statement.” (Jacobson v. Schwarzenegger (C.D. Cal. 2004) 357 F. Supp. 2d 1198, 1216.) As such, the burden is not on Defendant to prove that no defamatory statement was made. Rather, by failing to identify the allegedly defamatory statement, the burden is on Plaintiff to identify the defamatory statements which were allegedly made. Plaintiff’s own opposition does not set forth any specific defamatory statements. Rather, it reiterates allegations that based on information and belief false statements were made regarding Plaintiff’s incident with Hernandez, and were defamatory because “[a]n employee who falsely accuses an employee of “criminal conduct, lack of integrity, dishonesty, incompetence, or reprehensible personal characteristics or behavior, commits defamation per se.” (Jensen v. Hewlett-Packard Co. (1993) 14 Cal.App.4th 958, 965.)

However, importantly, the Court here cannot approach the question of whether or not Defendant’s employees made false accusations of criminal conduct or reprehensible personal characteristics or behavior because Plaintiff has not identified the relevant statements at issue here. Moreover, setting this aside, under California law, statements made in conjunction with an investigation surrounding an employee’s misconduct and/or discharge are protected by the “common interest” privilege and are not actionable. (See, e.g., Deaile v. Gen. Telephone Co. of Calif. (1974) 40 Cal. App. 3d 841, 846-849 (holding communications surrounding company investigations and employee’s discharge fell squarely within the qualified privilege for communications to interested parties where recipients of allegedly defamatory communications were employed by defendant or were his supervisors); King v. United Parcel Servs., Inc. (2007) 152 Cal. App. 4th 426, 441-42 (same); Cuenca v. Safeway San Francisco Emps. Fed. Credit Union (1986) 180 Cal. App. 3d 985, 995 (“Communications made in a commercial setting relating to the conduct of an employee have been held to fall squarely within the qualified privilege for communications to interested persons”).

As such, communications confined to management or Human Resources about the underlying reasons for Plaintiff’s termination or the incident with Hernandez fall within the scope of the common interest privilege. Plaintiff has not submitted any evidence to show that the incident was reported to anyone other than those involved in the investigation, and Plaintiff himself alleges that the comments were published “as justification for terminating [Plaintiff’s] employment.” (Am. Cross-Compl. ¶ 31.)

In sum, the Court concludes that Plaintiff has not met his burden to state a prima facie claim for defamation. Moreover, even assuming he had, Defendant’s evidence supports a reasonable inference that the common-interest privilege applies to any alleged statements. Plaintiff did not submit evidence that could show a triable issue of material fact as to that fact.

Based on the foregoing, Defendant’s motion for summary adjudication is granted.