Judge: Joseph Lipner, Case: 22STCV16380, Date: 2024-03-19 Tentative Ruling

Case Number: 22STCV16380 Hearing Date: March 19, 2024 Dept: 72

SUPERIOR COURT OF CALIFORNIA

COUNTY OF LOS ANGELES

DEPARTMENT 72

TENTATIVE RULING

RUSSELL WARD,

Plaintiffs,

PAPERBACK BREWING LLC,

Defendants.

Case No: 22STCV16380

Hearing Date: March 19, 2024

Calendar Number: 4

Defendant Paperback Brewing LLC (“Defendant”) moves for summary judgment against Plaintiff Russell Ward (“Plaintiff”). In the alternative, Defendant seeks summary adjudication on each cause of action.

The Court DENIES the motion for summary judgment.

The Court DENIES the motion for summary adjudication.

Background

This is an employment case relating to Plaintiff’s employment with Defendant. The following facts are taken from the parties’ separate statements, referred to as “UMF” (Defendant’s Undisputed Material Facts), “RUMF” (Plaintiff’s Responses to Undisputed Material Facts), and “AUMF” (Plaintiff’s Additional Material Facts).

Defendant is a brewery that sells alcoholic beverages to third-party locations. Plaintiff was employed as a sales representative, but his job also involved work in deliveries, loading and merchandising. In particular, Defendant would regularly staff Plaintiff on work that involved driving a truck to make deliveries. (UMF 6-12.)

Plaintiff suffered a number of injuries during his work for Defendant, including severe stress-induced stomach issues and a back injury. Although Plaintiff reported these injuries to Defendant, Defendant did not take action to accommodate Plaintiff. (RUMF 18, 19.) When Plaintiff reported his back injury and said that he could not lift kegs anymore, his manager Jace Milstead told Plaintiff that he should start looking for a new line of work if he could not handle the physical side of the job. (RUMF 19.)

Plaintiff’s coworkers frequently made sexually-charged comments toward him that went unaddressed by Defendant. (See generally AUMF 5-15.) Brandon More sent Plaintiff sexual images drawn by another coworker. Chris Cesnek sent Plaintiff a bumper sticker with sexually charged language on it, as well as numerous nude photographs of a person holding Defendant’s beer. Cesneck and Monroe both made comments to Plaintiff regarding Plaintiff’s sexual activity at various times. On a number of occasions, Plaintiff made similar sexually charged comments in discussions with coworkers. (UMF 27-33.) Plaintiff testified in his deposition that he made those comments because he felt forced to “play along” out of fear of repercussions if he did not. (RUMF 27-33.)

Plaintiff did not complain to Defendant about these activities because the work environment – which Plaintiff characterizes as a “good ole boy club” – indicated to Plaintiff that if he complained, he would lose his job. (RUMF 26-33.) Defendant had no policies against sexual harassment or retaliation. (RUMF 38, AUMF 4.) Plaintiff complained once to Grant Nemirow, a manager, but Defendant did not take any action. (RUMF 26.)

Defendant hired an artist, Nanà Dalla Porta, to draw labels for its beer cans, and employees would sometimes discuss ideas for label art or make contributions. Chris Cesnek would also make drawings of his own. The label art frequently involved drawings of people, often in strange situations. A number of the labels had sexually charged art on them. Many of the characters on the labels also appeared in a web comic drawn by Dalla Porta.

Plaintiff alleges that one of the characters in the labels and comics was based on his likeness. On one label, entitled “Tucked in by Strangers” the character appeared as one of three men in burglar’s costumes tucking a man into bed with a teddy bear. (RUMF 71.) On another label, entitled “Swinger Party,” the character appeared in his underwear with a teddy bear. (AUMF 18, 39, 57, 59-63.) Following this, coworkers and customers would call Plaintiff “Swinger Party” or “Stranger.” Cesneck would often draw Defendant’s other employees, often in a sexually explicit manner, without their consent. In August 2021, Cesnek and Monroe told Plaintiff that another character was based on a former employee, with Cesnek saying “see what happens when you quit.” (AUMF 21-23.) Cesneck sketched Plaintiff again for a drawing with a shopping card, referred to as “Paperback Overdose Goonie” or “POG”; Defendant eventually sold a beer entitled “POG WARS” with a character allegedly drawn based on Plaintiff and holding a teddy bear. (AUMF 26-27.) Defendant admits that the characters with the teddy bear in “Swinger Party,” “Tucked in by Strangers,” and “POG Wars” are the same character. (UMF 19.)

In the months leading up to Plaintiff’s termination, Defendant’s managers reprimanded him repeatedly, which Defendant contends was for tardiness, issues with Plaintiff’s driving routes, and failure to complete paperwork. (UMF 43-50.) Plaintiff disputes that he failed to complete his work properly. (RUMF 43-50.)

It is unclear exactly how Plaintiff felt about his career prospects with Defendant in the time leading up to his termination. Shortly before Plaintiff’s termination, he commented that he just wanted to keep his job. In a text message on January 16, 2022, Plaintiff texted Monroe asking what day he should come in to close out his career with Defendant and stating “I’m not going to quit you’re going to have to fire me. I just can’t work with Jace.” (UMF 50.)

Defendant’s management spent some time conversing over whether Plaintiff could continue to work there, but ultimately terminated Plaintiff on January 24, 2022.

Plaintiff filed this action on May 17, 2022, raising claims for (1) discrimination; (2) harassment; (3) retaliation; (4) failure to prevent discrimination, harassment, and retaliation; (5) failure to provide reasonable accommodation; (6) failure to engage in a good faither interactive process; (7) declaratory judgment; (8) wrongful termination; (9) failure to pay wages; (10) failure to pay minimum wages; (11) failure to pay overtime compensation; (12) failure to provide meal and rest periods; (13) failure to provide itemized wage and hour statements; (14) waiting time penalties; (15) failure to permit inspection of personnel and payroll records; (16) unfair competition; and (17) appropriation of name or likeness under Civil Code, section 3344.

Defendant moved for summary judgment on January 2, 2024. Plaintiff filed an opposition. Defendant did not file a reply.

Evidentiary Objections

The Court overrules Plaintiff’s evidentiary objections without prejudice to his ability to raise them at trial.

Legal Standard

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 defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(2).)

“Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Ibid.) 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 plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.)

Discussion

(1) Discrimination

A plaintiff alleging discrimination must allege “that (1) [the plaintiff] was a member of a protected class, (2) [the plaintiff] was qualified for the position he 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.)

Under the McDonnell Douglas framework, the employer must carry the burden of showing the employee's action has no merit. (Code Civ. Proc., § 437c, subd. (p)(2).) It may do so with evidence that either: (1) indicates “that one or more of plaintiff’s prima facie elements is lacking,” or (2) shows some legitimate, nondiscriminatory reason for the action taken against the employee. (Caldwell v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 203.)

If defendant meets its burden, the burden then shifts to the plaintiff to produce substantial evidence that the employer’s showing was untrue or pretextual by raising at least an inference of discrimination or retaliation. (Hersant v. California Department of Social Services (1997) 57 Cal.App.4th 997, 1004-1005.) “In short, by applying¿McDonnell Douglas’s shifting burdens of production in the context of a motion for summary judgment, ‘the judge [will] determine whether the litigants have created an issue of fact to be decided by the jury.’ [Citation.]” (Caldwell, supra, 41 Cal.App.4th at p. 203.)

Defendant argues that it could not have terminated Plaintiff for discriminatory reasons because Plaintiff never notified Defendant of his injuries and because Plaintiff requested to be terminated by text.

The factual question of whether Plaintiff told Defendant about his disability is disputed. Whether Plaintiff can dispute the cause of his termination is a closer issue. Plaintiff’s text message stating that Defendant would have to terminate him because he could not work with his manager Jace Milstead certainly provides a case that Defendant had a non-discriminatory reason to terminate him. However, insofar as the breakdown of Plaintiff’s relationship with Milstead resulted from Milstead’s own discriminatory statements, e.g. that Plaintiff would have to find a new line of work if he could not lift kegs, the managers that ultimately terminated Plaintiff may have acted as a cat’s paw for discriminatory animus. Thus, Plaintiff has raised a triable issue of fact as to whether his disability was a motivating factor in his termination.

The Court denies summary adjudication and therefore denies summary judgment.

(2) Harassment

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).)¿

Defendant argues that it is undisputed that Plaintiff welcomed the sexually explicit conduct that his coworkers directed at him. This is far from clear. While it is true that Plaintiff also engaged in sexually explicit conduct in return, an employee might reasonably believe that it is necessary to “play along” in order to keep their job – as Plaintiff provides evidence that he did. Furthermore, Plaintiff did complain on one occasion, to no effect - making it unsurprising that Plaintiff did not make subsequent complaints.

The Court denies summary adjudication.

(3) Retaliation

“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.)

Defendant argues that Plaintiff never complained about disability discrimination or sexual harassment and that it had non-discriminatory motives for Plaintiff’s termination. The Court discussed these arguments above.

The Court denies summary adjudication.

(4) Failure to prevent discrimination, harassment, and retaliation

The elements of a cause of action for failure to prevent harassment or retaliation are: (1) actionable discrimination or harassment by employees or nonemployees; (2) defendant’s legal duty of care toward plaintiff (i.e., defendant is the plaintiff’s employer); (3) breach of that duty (i.e., failure to take all reasonable steps necessary to prevent discrimination and harassment from occurring); (4) legal causation; and (5) damages to plaintiff. (Trujillo v. North County Transit District (1998) 63 Cal.App.4th 280, 287, 289; Bradley v. Department of Corrections & Rehabilitation (2008) 158 Cal.App.4th 1612, 1630; Gov. Code, § 12940.)

Defendant argues that this claim fails because it is derivative of Plaintiff’s harassment, discrimination, and retaliation claims. However, for the reasons discussed above, the Court finds that there are triable issues of fact.

The Court denies summary adjudication.

(5) Failure to provide reasonable accommodation

Under Government Code, section 12940, it is an unlawful employment practice “to fail to make reasonable accommodation for the known physical or mental disability of an applicant or employee” unless the employer demonstrates doing so would impose an undue hardship. “The essential elements of a failure to accommodate claim are: (1) the plaintiff has a disability covered by the FEHA; (2) the plaintiff is a qualified individual (i.e., he or she can perform the essential functions of the position); and (3) the employer failed to reasonably accommodate the plaintiff's disability.” (Wilson v. County of Orange (2009) 169 Cal.App.4th 1185, 1192.)

Defendant argues that this claim fails because Plaintiff never notified it of his disability. However, for the reasons discussed above, the Court finds that there are triable issues of fact.

The Court denies summary adjudication.

(6) Failure to engage in a good faith interactive process

“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.)

Defendant argues that this claim fails because it is derivative of Plaintiff’s reasonable accommodation claim. However, for the reasons discussed above, the Court finds that there are triable issues of fact.

The Court denies summary adjudication.

(7) Declaratory judgment

“To qualify for declaratory relief, a party would have to demonstrate its action presented two essential elements: (1) a proper subject of declaratory relief, and (2) an actual controversy involving justiciable questions relating to the party’s rights or obligations.” (Jolley v. Chase Home Finance, LLC (2013) 213 Cal.App.4th 872, 909, quotation marks and brackets omitted.)

A cause of action for declaratory relief should not be used as a second cause of action for the determination of identical issues raised in another cause of action. (General of America Insurance Co. v. Lilly (1968) 258 Cal.App.2d 465, 470.) “The availability of another form of relief that is adequate will usually justify refusal to grant declaratory relief” (California Insurance Guarantee Association v. Superior Court (1991) 231 Cal.App.3d 1617, 1624), and a duplicative cause of action is subject to demurrer (Palm Springs Villas II Homeowners Association, Inc. v. Parth (2016) 248 Cal.App.4th 268, 290). Further, “there is no basis for declaratory relief where only past wrongs are involved.” (Osseous Technologies of America, Inc. v. DiscoveryOrtho Partners LLC (2010) 191 Cal.App.4th 357, 366, quotation marks omitted.)

Defendant argues that this claim fails because it is derivative of Plaintiff’s discrimination, harassment, and retaliation claims. However, for the reasons discussed above, the Court finds that there are triable issues of fact.

The Court denies summary adjudication.

(8) Wrongful termination

“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. It is well established that a termination premised on an employee’s refusal to violate either a statute or an administrative regulation may support a claim for wrongful termination in violation of public policy.” (Nosal-Tabor v. Sharp Chula Vista Medical Center (2015) 239 Cal.App.4th 1224, 1234, citation omitted.)

For the reasons discussed above, Plaintiff has supported a triable issue that management functioned were influenced or manipulate by Milstead’s discriminatory animus.

The Court denies summary adjudication.

(9) Failure to pay wages

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 was 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).)

Plaintiff alleges that he was misclassified as a sales employee and underpaid as a result. Defendant argues that Plaintiff was not underpaid because he was correctly classified as an exempted outside salesperson.

Outside salespersons are exempt from the Lab. Code’s requirements regarding minimum wage, overtime, and meal and rest breaks. (Wage Order 4-2001, §1(D); Cal. Code Regs (“CCR”), tit. 8, §11070; Lab. Code §§1171, 1198; Ramirez v. Yosemite Water Co. (1999) 20 Cal.4th 785, 789, 795.) An "outside salesperson" is defined as "any person, 18 years of age or over, who customarily and regularly works more than half the working time away from the employer's place of business selling tangible or intangible items or obtaining orders or contracts for products, services or use of facilities.” (CCR, tit. 8, §11070(2)(J).)

Trial courts inquire into the “realistic requirements of the job” by considering the following factors: (1) how the employee actually spends his time; (2) whether the employee’s practice diverges from the employer’s realistic expectations; (3) whether the employer was dissatisfied with the employee’s substandard performance; and (4) whether the employer’s dissatisfaction with the employee was realistic given the actual overall requirements of the job. (Ramirez, supra, at p. 802.)

Here, Plaintiff spent a substantial portion of his time loading beer into trucks and making deliveries. Defendant was not dissatisfied with this performance; rather, it assigned Plaintiff to these duties regularly. Thus, there is a triable issue of fact that Plaintiff was misclassified as an exempt salesperson.