Judge: Joseph Lipner, Case: 22STCV05818, Date: 2024-11-07 Tentative Ruling
Case Number: 22STCV05818 Hearing Date: November 7, 2024 Dept: 72
SUPERIOR COURT OF CALIFORNIA
COUNTY OF LOS ANGELES
DEPARTMENT 72
TENTATIVE
RULING
|
MICHELLE CASTILLO, Plaintiff, v. INTERVENTIONAL ANASTHESIA &
PAIN MANAGEMENT CLINIC INC., Defendant. |
Case No:
22STCV05818 Hearing Date: November 7, 2024 Calendar Number: 4 |
Plaintiff Michelle Castillo (“Plaintiff”) moves for summary
judgment against Defendant Interventional Anesthesia & Pain Management
Clinic Inc. (“Defendant”) on her Complaint.
The Court DENIES the motion for summary judgment.
The Court DENIES the motion for summary adjudication.
This is an employment case. The following facts are taken
from the parties’ separate statements. Except where otherwise noted, Court
resolves disputes of fact in favor of the nonmoving party.
On October 26, 2020, Plaintiff was hired to work for
Defendant as a front and back-office assistant. (Undisputed Fact (“UF”) 1;
Response to Undisputed Fact (“RUF”) 1.) Plaintiff’s superiors at the office
were Soroya Malek and Dr. Sabri Malek. (UF 6.)
Plaintiff contends that she was a loyal employee and
performed her job duties competently. (UF 2-3.) Defendant contends that
Plaintiff “did not follow directions and argued with her superiors and
patients. [Citing Soroya Malek Decl. ¶ 5.] [Plaintiff] was disloyal,
disruptive, unproductive[,] and sloppy at best. She was not a team player,
spread gossip[,] and caused discord with other employees. [Citing Sabri Malek
Decl. ¶ 3.]” (RUF 2.)
According to Plaintiff, Defendant’s office was chronically
understaffed, and employees were given more work than they could reasonably
handle. (UF 4.) Plaintiff contends that
one of the Maleks (she does not specify who) pressured her to work without
proper breaks. (UF 26.) Plaintiff contends that this pressure and understaffing
let to consistently late lunches and missed rest periods altogether. (UF 27.) Plaintiff
contends that throughout her employment, her wage statements did not include
premium pay for her meal and rest breaks. (UF 28.) Defendants contend that
Plaintiff always took her lunch and rest breaks on time and was never
interrupted. (RUF 25-27.)
Plaintiff contends that Defendants consistently failed to
provide her with timely wage statements. (UF 29; see also Castillo Decl., Ex.
3.) Defendants contend that Plaintiff was paid on time. (RUF 29.) Plaintiff
contends that Exhibit 3 to her declaration shows pay stubs with consistent
delays in payment; however, the pay stubs in Exhibit 3 show at most a delay of
two to three days after the end of the pay period. (Castillo Decl., Ex. 3.)
On November 9, 2020, Plaintiff found out that she was
pregnant. (UF 5.) Although Plaintiff contends that she promptly informed Soroya
and Sabri Malek about her pregnancy (UF 6), Soroya Malek declares that
Plaintiff did not inform the Maleks of her pregnancy until November 27, 2020,
when Plaintiff requested time off for an ultrasound. (RUF 6.)
Plaintiff contends that the Maleks began treating her
differently right after Plaintiff told the Maleks that she was pregnant. (UF
7-12.) Plaintiff contends that the Maleks began treating her negatively and
making it clear that they were unhappy with her pregnancy. (UF 8.) Plaintiff
contends that the Maleks became aggressive and threatening to her. (UF 10.)
Plaintiff contends that when she informed the Maleks that she would need time
off during the eighth month of her pregnancy, one of the Maleks (who she does
not identify) yelled at her, “If you are not happy here, then you can leave or
we might alter and reduce your pay.” (UF 11.) Defendants deny that this
incident happened (RUF 11) and generally deny that they treated Plaintiff
negatively after finding out that she was pregnant. (RUF 7-12.)
Plaintiff had to use the restroom more frequently when she
became pregnant. (UF 13.) Plaintiff contends that Soroya Malek mocked Plaintiff
for taking frequent restroom breaks, stating “Oh, you used the restroom again!”
(RUF 13-14.) Soroya Malek declares that she was concerned about Plaintiff’s
health and thought that Plaintiff might have an infection. (UF 13-14.)
Plaintiff scheduled an appointment with her OB-GYN for
November 28, 2020. (UF 15.) Plaintiff contends that Sabri Malek became angry
when she informed him of the appointment, and did not allow her to take time
off work for the appointment. (UF 16.) Defendant contends that this was because
Plaintiff did not mention the appointment until November 27, 2020, the day
before the appointment, and that Plaintiff was informed to give notice farther
in advance. (RUF 16.) Defendant disputes that Sabri Malek became angry with
Plaintiff. Defendant does not dispute that Plaintiff was not permitted time off
for the November 28, 2024 appointment. (RUF 17.)
On December 18, 2020, Plaintiff tested positive for
Covid-19. (UF 18.) Defendant contends that Plaintiff did not inform Defendant
of her positive test until December 21, 2020. (UF 18; see also Castillo Decl.,
Ex. 1.) Defendant contends that Plaintiff came to work on December 16, 2020,
prior to her positive test, without wearing a mask. (RUF 18.) Although Soroya
Malek declares that Plaintiff came in contact with others while positive for
Covid-19 (Soroya Malek Decl. ¶14), it is not clear when this happened. Soroya
Malek instructed Plaintiff to quarantine on December 21, 2020, when she was
notified (UF 19), and Plaintiff was subsequently terminated before she returned
to work. (UF 21.) Soroya Malek additionally declares that Plaintiff came into
contact with others while being exposed to her boyfriend, who tested positive
for Covid-19. (Soroya Malek Decl. ¶ 16.) Plaintiff does not contradict this
statement. Defendant contends that Castillo’s coworkers were upset that
Castillo came to work after being exposed to Covid-19. (RUF 22.)
On January 4, Plaintiff informed Soroya Malek that she had
tested negative for Covid-19 and was ready to return to work. (UF 20.)
On January 5, 2021, Soroya Malek terminated Plaintiff’s
employment via a text message. (UF 21.) The text message stated as follows:
Good
morning Michelle, due to covid-19 crisis and your critical situation and your pregnancy,
and the sensitivity of the radiation equipments we use in the clinic. We will
regretfully have to lay you off. We will hire an MA.
If
you choose to apply for an unemployment we will support your application. Let
us know if we could help.
Thank you and
good luck.
(UF 22; Castillo Decl., Ex. 2.)
Defendant contends that by working at Defendant without
notifying them of her pregnancy, Plaintiff exposed her fetus to risk of harm
from exposure to x-ray radiation. (RUF 5, 20, 23.)
Defendant did not issue Plaintiff’s final paycheck on her
last day of employment. (UF 30.) Defendant contends that Plaintiff’s paycheck
was mailed to her at her request because she was in quarantine. (RUF 30, 32.) However,
Defendant does not contradict Plaintiff’s statement that she told Soroya Malek
on January 4, 2024, the day before her termination, that she had tested
negative and no longer needed to quarantine. (UF 20; RUF 20.)
Plaintiff filed this action on February 15, 2022. The
Complaint raises claims for (1) failure to furnish compliant wage statements;
(2) failure to pay wages in a timely manner; (3) failure to pay earned wages;
(4) failure to pay meal and rest period compensation; (5) wrongful termination
in violation of public policy; (6) wrongful termination and retaliation; (7)
wrongful termination and harassment; (8) wrongful termination and
discrimination; (9) failure to engage in interactive process; (10) waiting time
penalties; and (11) unfair competition.
On August 20, 2024, Plaintiff moved for summary judgment.
Defendant filed an opposition and Plaintiff filed a reply.
Plaintiff appears to contend that the Court should disregard
the declarations submitted by Defendant as insufficient to raise genuine issues
of fact. Plaintiff argues that “ ‘[t]he [general] rule is ... that averments in
the movant’s affidavits which depend upon written documents are
incompetent and can not be considered unless there are annexed thereto the
original documents or certified or authenticated copies of such instruments, or
excuse for nonproduction thereof is shown.’ ” (Dugar v. Happy Tiger Records,
Inc. (1974) 41 Cal.App.3d 811, 815–816 [emphasis added].) However, “ ‘[i]n
order to succeed the moving party must present a competent showing regardless
of weakness in the opposing affidavits and this is a matter which cannot be
waived.’ ” (Miller & Lux, Inc. v. Bank of America (1963) 212
Cal.App.2d 719, 725.) Further, Plaintiff has not provided reasons for the Court
to find that the declarations that Defendant submits are broadly unreliable or
self-serving.
The purpose of a motion for
summary judgment or summary adjudication “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., supra, 25 Cal.4th at p. 843.) “Code of
Civil Procedure section 437c, subdivision (c), requires the trial judge to
grant summary judgment if all the evidence submitted, and ‘all inferences
reasonably deducible from the evidence’ and uncontradicted by other inferences
or evidence, show that there is no triable issue as to any material fact and
that the moving party is entitled to judgment as a matter of law.” (Adler v.
Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)
“In ruling on the motion,
the court must consider all of the evidence and all of the inferences
reasonably drawn therefrom [citation] and must view such evidence [citations]
and such inferences [citations] in the light most favorable to the opposing
party.” (Aguilar, supra, at pp. 844-845 [quotation marks
omitted].)
“On a motion for summary
judgment, the initial burden is always on the moving party to make a prima
facie
showing that there are no triable issues of material fact.” (Scalf v. D. B.
Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.)
“A plaintiff or
cross-complainant has met his or her burden of showing that there is no defense
to a cause of action if that party has proved each element of the cause of
action entitling the party to judgment on the cause of action. Once the
plaintiff or cross-complainant has met that burden, the burden shifts to the
defendant or cross-defendant to show that a triable issue of one or more
material facts exists as to the cause of action or a defense thereto. The
defendant or cross-defendant shall not rely upon the allegations or denials of
its pleadings to show that a triable issue of material fact exists but,
instead, shall set forth the specific facts showing that a triable issue of
material fact exists as to the cause of action or a defense thereto.” (Code
Civ. Proc. § 437c, subd. (p)(1).)
To establish a triable issue
of material fact, the party opposing the motion must produce substantial
responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151,
166.) “If the [opposing party]
cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico
Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.)
Plaintiff states that this claim will be dismissed. (Motion
at pp. 20:27-21:1.)
It is well-settled policy in California that all of an employee’s
earned wages must be fully and promptly paid. (Smith v. Superior Court
(2006) 39 Cal.4th 77, 82.) Failure to promptly pay wages results in a waiting
time penalty whereby the wages continue to accrue up to a maximum of 30 days.
(Lab. Code § 203.)
“ ‘Wages’ includes all amounts for labor performed by
employees of every description, whether the amount is fixed or ascertained by
the standard of time, task, piece, commission basis, or other method of
calculation.” (Lab. Code, § 200.) Bonuses are treated as wages when the bonus
is promised as part of compensation and the employee fulfills any agreed-to
conditions for the bonus. (Neisendorf v. Levi Strauss & Co. (2006)
143 Cal.App.4th 509, 522.)
All earned wages are due and payable immediately upon an
employee’s termination. (Lab. Code, § 201, subd. (a).)
As
discussed above, Plaintiff has not shown a substantial delay in her pay stubs
during her employment. Although Defendant admits that Plaintiff’s final
paycheck upon termination was delayed, Defendant has created a triable issue of
fact that this was because Plaintiff requested that her check be mailed to her.
The
Court therefore denies summary adjudication on this claim. Because the Court
denies summary adjudication on this claim, the Court also denies summary
judgment.
The
only earned wages that Plaintiff appears to contend were not paid were her
premium wages for alleged missed meal and rest breaks. Defendants have supported
a triable issue that Plaintiff never missed any meal or rest breaks.
The
Court therefore denies summary adjudication on this claim.
An employer must give its employees a 30-minute meal within
the first 5 hours of their shift and rest breaks. (Lab. Code §§ 226.7(a),
512(a); IWC Wage Order No. 4-2001.) An employer satisfies this duty “if it
relieves its employees of all duty, relinquishes control over their activities
and permits them a reasonable opportunity to take an uninterrupted thirty-minute
break, and does not impede or discourage them from doing so.” (Cleveland v.
Groceryworks.com, LLC (N.D. Cal. 2016) 200 F.Supp.3d 924, 946.) As such,
“an employee must show that he was forced to forego his meal [and rest] breaks
as opposed to merely showing that he did not take them regardless of the
reason.” (White v. Starbucks Corp. (N.D. Cal. 2007) 497 F.Supp.2d 1080,
1089.)
Defendants have supported a triable issue that Plaintiff
never missed any meal or rest breaks.
The
Court therefore denies summary adjudication on this claim.
“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.”
(Nosal-Tabor v. Sharp Chula Vista Medical
Center (2015) 239 Cal.App.4th 1224, 1234, citation omitted.)
As
should be clear from the background section, the parties present substantially
differing accounts of what happened surrounding the employment and termination
of Plaintiff. This renders the
discrimination and wrongful termination claims uniquely inappropriate for
summary adjudication.
By way of example, Defendant has demonstrated viable issues
relating to whether Defendant fired Plaintiff because Plaintiff was not
competent, rather than because of her pregnancy. Defendant provides declarations
stating that Plaintiff had behavior and performance problems and required
repeated correction. While Plaintiff has identified some contradictions in
Defendant’s separate statement (see RUF 24, contending that Plaintiff had a
“joyous, relaxed, and happy all the time demeanor”), the Court is required to
resolve disputes and ambiguities of fact in favor of the nonmoving party. Moreover,
as discussed in more detail under Plaintiff’s eighth claim for wrongful
termination and discrimination, Defendant has demonstrated a triable issue of
fact as to whether the pregnancy itself was a substantial motivating factor in
her termination.
The Court denies summary adjudication on this claim.
“To establish a prima facie case of retaliation under the
[Fair Employment and Housing Act] FEHA, a 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) a causal link existed between the
protected activity and the employer’s action.” (Meeks v. Autozone, Inc. (2018) 24 Cal.App.5th 855, 878-879,
brackets omitted.) “An ‘adverse employment action,’ which is a critical
component of a retaliation claim, requires a substantial adverse change in the
terms and conditions of the plaintiff’s employment.” (Holmes v. Petrovich Development Co., LLC (2011) 191 Cal.App.4th
1047, 1063, quotation marks omitted.)
Plaintiff
contends that Defendant retaliated against her for requesting pregnancy or
family leave. However, the facts do not clearly show that Plaintiff’s
termination resulted from her leave requests or her doctor’s appointment.
Plaintiff has therefore failed to carry her initial burden to show that there
is no triable issue of fact.
Accordingly,
the Court denies summary adjudication on this claim.
To establish a prima facie case of a hostile work
environment, [the plaintiff] must show that (1) [plaintiff] is a member of a
protected class; (2) [plaintiff] was subjected to unwelcome harassment; (3) the
harassment was based on [plaintiff’s] protected status; (4) the harassment
unreasonably interfered with [plaintiff’s] work performance by creating an
intimidating, hostile, or offensive work environment; and (5) defendants are
liable for the harassment.” (Ortiz v. Dameron Hospital
Assn. (2019) 37 Cal.App.5th 568, 581.)
“[T]he adjudicator’s inquiry should center, dominantly, on
whether the discriminatory conduct has unreasonably interfered with the
plaintiff’s work performance. To show such interference, ‘the plaintiff need
not prove that his or her tangible productivity has declined as a result of the
harassment.’ It suffices to prove that a reasonable person subjected to the
discriminatory conduct would find, as the plaintiff did, that the harassment so
altered working conditions as to ‘make it more difficult to do the job.’ ” (Harris
v. Forklift Sys. (1993) 510 U.S. 17, 25, conc. opn. of Ginsburg, J.; see
Gov. Code, § 12923, subd. (a) [endorsing this language as reflective of
California law].) A single incident of harassment may be enough to constitute a
hostile work environment if it “unreasonably interfered with the plaintiff’s
work performance or created an intimidating, hostile, or offensive working
environment.” (Gov. Code, § 12923, subd. (b).)¿The court shall use the totality
of the circumstances to determine whether there exists a hostile work
environment. (Gov. Code, § 12923, subd. (c).)¿
Defendants
dispute all of Plaintiff’s factual allegations of verbal harassment based on
her pregnancy. (RUF 7-14.) Plaintiff has not provided a reason why this
evidence should be disregarded. Thus, there is a triable issue of fact as to
whether Plaintiff was harassed.
The
Court therefore denies summary adjudication on this claim.
To establish a claim for discrimination, a plaintiff must
show “that (1) [the plaintiff] was a member of a protected class, (2) [the
plaintiff] was qualified for the position [they] sought or was performing
competently in the position [they] held, (3) [the plaintiff] suffered an
adverse employment action, such as termination, demotion, or denial of an
available job, and (4) some other circumstance suggests discriminatory motive.”
(Guz v. Bechtel National Inc. (2000) 24 Cal.4th 317, 355.)
FEHA
prohibits discrimination based on, inter alia, sex, disability, or medical
condition. (Gov. Code, § 12940, subd. (a).) The term “sex” is defined to
include pregnancy or medical conditions relating to pregnancy. (Gov. Code, §
12926, subd. (r).)
First, Defendant has demonstrated a disputed issue of fact
about whether Plaintiff was “performing competently in the position [they] held.”
(Guz, supra performing competently.
Defendant has submitted evidence (disputed by Plaintiff) that
“[Plaintiff’s] careless attitude towards her co-workers, patients and employers
raised great concern to the point she was laid off (during her probationary
period). Other factors were her poor work performance, her continuous taking
advantage of using work time to do personal activities i.e. phone calls,
browsing the web, taking extra breaks, and not completing assigned tasks.” (RUF
21.) While Plaintiff has identified some
contradictions in Defendant’s separate statement (see RUF 24, contending that
Plaintiff had a “joyous, relaxed, and happy all the time demeanor”), the Court
is required to resolve disputes and ambiguities of fact in favor of the
nonmoving party.
This and other facts demonstrate a dispute about
discriminatory motive. Plaintiff relies
on Soroya Malek’s text message to Plaintiff which states that “due to covid-19
crisis and your critical situation and your pregnancy, and the sensitivity of
the radiation equipments we use in the clinic. We will regretfully have to lay
you off.” (Castillo Decl., Ex. 2.) Notwithstanding the listing of “your
pregnancy” in this text, Defendant argues that in context of the full text and
the other evidence Defendant provided, there was no discriminatory motive. Defendant argues that the reference to pregnancy
was coupled with the concern about radiation equipment, and provides evidence
that Plaintiff was exposing herself to the radiation equipment in an unsafe
manner without informing anyone. (Sabri
Malek Decl. ¶ 6.)
Whether Defendant has demonstrated disputed facts on this
issue presents a close question.
However, given the Court’s obligation to consider facts in the light
most favorable to the opposing party, the Court agrees that there is a disputed
issue of fact on this point. This is especially
true in light of the parties’ sharply differing accounts of the circumstances
of Plaintiff’s work and termination.
Because
Defendant has supported a triable issue as to whether Plaintiff was performing
competently, along with the other facts discussed above, the Court denies
summary adjudication on this claim.
“FEHA requires an informal process with the employee to
attempt to identify reasonable accommodations, not necessarily ritualized
discussions.” (Nealy v. City of Santa Monica (2015) 234 Cal.App.4th 359,
379.)
Once initiated, the employer has a continuous obligation to
engage in the interactive process in good faith. “Both employer and employee
have the obligation ‘to keep communications open’ and neither has ‘a right to
obstruct the process.’” [Citation.] Each party must participate in good faith,
undertake reasonable efforts to communicate its concerns, and make available to
the other information which is available, or more accessible, to one party.
Liability hinges on the objective circumstances surrounding the parties’
breakdown in communication, and responsibility for the breakdown lies with the
party who fails to participate in good faith. [Citation.] (Swanson v.
Morongo Uni¿ed School Dist. (2014) 232 Cal.App.4th 954, 971–972.)
Plaintiff
contends that Defendant never engaged in an interactive process with Plaintiff
regarding her pregnancy. It is not clear that Defendant never engaged in an
interactive process. Although Defendant did not give Plaintiff time off when
first requested for her doctor’s appointment, Defendant has provided evidence
that this was because Plaintiff only requested the time off one day in advance,
and it is not clear whether Plaintiff ever obtained time off to attend a
rescheduled doctor’s appointment or not. Further, Defendant has provided
evidence contesting Plaintiff’s evidence that her request for time off in her
eighth month of pregnancy was met with hostility. The Court is therefore not
prepared to find that Plaintiff has eliminated all triable issues of fact that
Defendant failed to engage in an interactive process with her. The Court
therefore finds that Plaintiff has not met her initial burden on summary
adjudication.
The
Court denies summary adjudication on this claim.
As discussed above, Plaintiff has not shown a substantial
delay in her pay stubs during her employment. Although Defendant admits that
Plaintiff’s final paycheck upon termination was delayed, Defendant has created
a triable issue of fact that this was because Plaintiff requested that her
check be mailed to her.
The Court therefore denies summary adjudication on this
claim.
Plaintiff
contends that Defendant engaged in unfair business practices by failing to pay
her meal and rest break premiums – both in general, and upon termination.
Because
this claim is founded in Plaintiff’s wage claims, for which the Court denies
summary adjudication, the Court also denies summary adjudication for this
claim.