Judge: Joseph Lipner, Case: 23STCV19444, Date: 2024-12-19 Tentative Ruling

Case Number: 23STCV19444    Hearing Date: December 19, 2024    Dept: 72

SUPERIOR COURT OF CALIFORNIA

COUNTY OF LOS ANGELES

DEPARTMENT 72

TENTATIVE RULING

Plaintiff Michael B. Smith (“Plaintiff”) moves for summary judgment on his Second Amended Complaint (“SAC”) against Defendant Michael Kors Inc. (“Defendant”).

The Court DENIES Plaintiff’s motion for summary judgment.

Background

This action arises out of Plaintiff’s employment relationship with Defendant. Plaintiff worked for Defendant as a temporary forklift operator. Plaintiff alleges that he suffered discrimination and harassment on the basis of his race and disability, eventually leading to his termination. Plaintiff appears to allege that his employment lasted from October 2019 to March 2020, when his employment was terminated. In December 2021, Defendant denied Plaintiff re-employment.

The following allegations are taken from Plaintiff’s SAC.

Plaintiff was employed with Defendant as a temporary worker. Plaintiff alleges that, due to his race, he was frequently instructed to cease working on his forklift in order to complete other tasks, and was then subsequently penalized in his evaluations for the reduced time working on the forklift that resulted. Another employee harassed Plaintiff for going to the bathroom frequently due to Plaintiff’s diabetes. A manager then denied him bathroom breaks outside of scheduled break times. Plaintiff alleges the harassment and racial discrimination occurred between October 2019 and March 2020.

The building that Plaintiff worked at shut down on March 16, 2020 due to the Covid-19 pandemic. On December 29, 2021, Defendant denied Plaintiff the ability to return to work, with the reason given being that his refusal to do work other than on his forklift made him not a team player.

Plaintiff alleges that he has suffered severe emotional distress and mental anguish as a result. Plaintiff also alleges that Defendant defamed and blacklisted him.

Plaintiff filed this action (the “Stanley Mosk Action”) on August 15, 2023. The SAC, which is the operative complaint, raises claims for (1) racial discrimination; and (2) retaliation.

This action is in fact the second action to be filed by Plaintiff concerning these facts. On December 28, 2022, Plaintiff filed a separate case against Defendant, arising out of the same set of facts, in the Los Angeles Superior Court at the Compton Courthouse (the “Compton Action”). The Compton Action, Case No. 22CMCV00753, was assigned to Judge Fumiko Wasserman in Department B.

The complaint in the Compton Action alleged a single cause of action for defamation. Plaintiff filed a first amended complaint in the Compton Action on February 10, 2023 with claims for (1) defamation; (2) reckless negligence; (3) IIED; and (4) punitive damages. Judge Wasserman sustained Defendant’s demurrer to the first and second amended complaints in that action on May 2, 2023 with leave to amend for all causes of action except reckless negligence.

The second amended complaint in the Compton Action, filed on May 19, 2023, alleged (1) willful and wanton conduct; (2) defamation; (3) punitive damages; and (4) non-economic injury in the form of mental anguish, emotional distress, stress, depression, anxiety, and loss of enjoyment of life. Within the body of the second amended complaint, Plaintiff also alleged racial discrimination and blacklisting.

Judge Wasserman sustained a demurrer to the second amended complaint in the Compton Action on August 22, 2023 respectively. Judge Wasserman denied leave to amend as to willful and wanton conduct, defamation, and blacklisting. Judge Wasserman dismissed the claim for non-economic injury damages, which is not a cause of action. Judge Wasserman found that the issue of punitive damages was moot without any causes of action pled. Because the discrimination cause of action was dismissed for failure to exhaust administrative remedies and Plaintiff had obtained a right-to-sue notice from the Department of Fair Employment and Housing after filing the second amended complaint, Judge Wasserman granted Plaintiff 20 days to amend the cause of action for discrimination.

Plaintiff did not amend his discrimination claim in the Compton Action, so Judge Wasserman dismissed the action without prejudice on October 10, 2023.

Plaintiff filed the Stanley Mosk Action roughly a week before the second demurrer was sustained in the Compton Action.

On March 5, 2024, the Court sustained Defendant’s demurrer with respect to portions of Plaintiff’s First Amended Complaint with leave to amend.

Plaintiff filed the SAC on March 19, 2024, raising claims for (1) discrimination; and (2) retaliation. On March 21, 2024, Plaintiff filed a declaration which included exhibits that Plaintiff declares that he intended to attach to the SAC.

            On September 25, 2024, Plaintiff filed this motion for summary judgment.

On November 19, 2024, Plaintiff filed a supplemental declaration in support of his motion.

On December 5, 2024, Defendant filed an opposition, separate statement, and objection to Plaintiff’s evidence.

On December 6, 2024, Defendant filed an appendix of evidence.

On December 11, 2024, Plaintiff filed a reply and amended declaration in support of his motion.

Evidentiary Objections

The Court notes that, in order to introduce exhibits, Plaintiff must provide evidence, such as testimony or declarations, that would allow a reasonable trier of fact to conclude that the exhibit is what Plaintiff says it is. Evidence authenticating an exhibit in this manner must include foundation – that is, it must show or explain how the witness knows that the exhibit is what it purports to be.  Plaintiff has generally not done so, rendering the exhibits he seeks to introduce technically inadmissible. The Court will, however, consider them in an abundance of caution.

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 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.)

Discussion

Procedural Issues

“The supporting papers [for a motion for summary judgment] shall include a separate statement setting forth plainly and concisely all material facts that the moving party contends are undisputed. Each of the material facts stated shall be followed by a reference to the supporting evidence. The failure to comply with this requirement of a separate statement may in the court’s discretion constitute a sufficient ground for denying the motion.” (Code Civ. Proc., § 437c, subd. (b)(1).)

“The separate statement is not merely a technical requirement, it is an indispensable part of the summary judgment or adjudication process. ‘Separate statements are required not to satisfy a sadistic urge to torment lawyers, but rather to afford due process to opposing parties and to permit trial courts to expeditiously review complex motions for ... summary judgment to determine quickly and efficiently whether material facts are disputed.’ ” (Whitehead v. Habig (2008) 163 Cal.App.4th 896, 902.)

A litigant’s self-represented status does not entitle them to a more liberal application of the rules of civil procedure. (Harding v. Collazo (1986) 177 Cal.App.3d 1044, 1056.)

Here, Plaintiff has not filed a separate statement that is compliant with Code of Civil Procedure, section 436c (b)(1) and California Rules of Court, Rule 3.1350. This is a basis to deny Plaintiff’s motion for summary judgment, and the Court denies the motion on this basis. As an additional basis to deny the motion, the Court proceeds to the merits.

Discrimination – First 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.)

Defendant has provided evidence that Plaintiff’s productivity fell below expectations for most of the three months leading up to his termination. (Defendant’s Additional Fact (“AF”) 5.) Defendant has provided evidence that associates were sometimes asked to assist other departments due to operational needs and that Plaintiff was asked to help other departments, but pushed back when asked to do so. (AF 3-4, 11.) Defendant has provided evidence that, on January 23 and 29, 2020, Plaintiff’s supervisor held documented discussions with Plaintiff about Plaintiff’s failure to follow procedures regarding aisle maintenance. (AF 6.)

Defendant has provided evidence that Plaintiff was initially terminated along with 168 other temporary workers due to the Covid-19 pandemic. (AF 7-9.) Plaintiff attempted to work for Defendant again through an employment recruitment agency, but Plaintiff’s former supervisor responded that he preferred that Plaintiff not be assigned to work for Defendant because Plaintiff had pushed back when asked to help other departments and was not a strong performer. (AF 10-11.) Plaintiff did not submit an employment application directly to Defendant. (AF 13.)

Thus, without determining whether Plaintiff has carried his initial burden on summary judgment, the Court finds that Defendant has supported the existence of a triable issue of fact that it had a legitimate, non-discriminatory purpose for terminating Plaintiff and not re-hiring him. The Court therefore denies Plaintiff’s motion as to this claim.

Retaliation – Second 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.)

As discussed above, Defendant has supported the existence of a triable issue of fact that Plaintiff was terminated, and not re-hired, due to performance issues.

Thus, without determining whether Plaintiff has carried his initial burden on summary judgment, the Court finds that Defendant has supported the existence of a triable issue of fact that it had a legitimate, non-retaliatory purpose for terminating Plaintiff and not re-hiring him. The Court therefore denies the motion as to this claim.