Judge Kerry Bensinger, Case Number: 21STCV35163, Date: 2023-12-19 Tentative Ruling

Counsel may submit on the tentative ruling by emailing Dept. 31 before 8:30 the morning of the hearing. The email address is smcdept31@lacourt.org. Please do not call the court to submit on the tentative. Please do not submit to the tentative ruling on behalf of the opposing party. Please do not e-mail the Court if you plan to appear and argue.

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The tentative rulings authored by this court reflect that the court has read and considered all pleadings and evidence timely submitted to the court in connection with the motion, opposition, and reply (if any). Because the pleadings were filed, they are part of the public record.

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**Tentative rulings on Motions for Summary Judgment will only be available for review in the courtroom on the day of the hearing.

On September 22, 2021, Plaintiff, Veronica Yameleth Bonilla, filed a Complaint against Defendant, Numero Uno Acquisitions, LLC, alleging causes of action for:

(3) Disability Discrimination in Violation of the Fair Employment and Housing Act (FEHA)

(4) Failure to Engage in a Good Faith Interactive Process in Violation of the FEHA

The following facts are not in dispute. Plaintiff began working for Defendant in July of 2016 as a Meat Department Worker. Her duties included meat packing, cutting meat, and helping customers. On October 8, 2019, Plaintiff sustained an injury to her hand while at work. Thereafter, Plaintiff took an approved medical leave of absence to receive surgery and treatment for her hand. In July of 2020, Plaintiff was evaluated by a doctor and released back for work duty with work restrictions. In August of 2020, Plaintiff spoke to her manager, Alcedis Fabian, and asked to return to work. Mr. Fabian stated that Human Resources had not told him about Plaintiff’s return, but he would reach out to her when they found a position for her. Mr. Fabian never responded to Plaintiff. On September 16, 2020, Plaintiff sent a letter to Human Resources stating that she had reached out to Mr. Fabian many times “to learn the date that she can return to work.” The letter further stated that she had yet to receive an answer from Mr. Fabian and that if Plaintiff is “not notified an answer in a week I will take it as an unjustified dismissal.” Defendant did not contact Plaintiff about a return to work. Defendant later reclassified Plaintiff’s employment status as terminated.

Defendant now moves for an order granting Summary Judgment, or in the alternative, Summary Adjudication as to each cause of action. Plaintiff filed an Opposition. Defendant replied.

“[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850, fn. omitted (Aguilar).) “Once the [movant] has met that burden, the burden shifts to the [other party] to show that a triable issue of one or more material facts exists as to that cause of action . . . .” (Code Civ. Proc., § 437c, subd. (p)(2); see Aguilar, 25 Cal.4th 826 at p. 850.) The party opposing summary judgment “may not rely upon the mere allegations or denials of its pleadings,” but rather “shall set forth the specific facts showing that a triable issue of material fact exists . . . .” (Code Civ. Proc., § 437c, subd. (p)(2).) A triable issue of material fact exists where “the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar, at p. 850.)

When a plaintiff alleges a cause of action for discrimination under the California Fair Employment and Housing Act (“FEHA”), California courts apply the three-step burden-shifting test set forth by the United States Supreme Court in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 (McDonnell Douglas) to evaluate the claim. (Reid v. Google, Inc. (2010) 50 Cal.4th 512, 520 (Reid); Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354 (Guz).) The McDonnell Douglas test “reflects the principle that direct evidence of intentional discrimination is rare, and that such claims must usually be proved circumstantially.” (Guz, 24 Cal.4th 317 at p. 354.) “Similar to causes of action under FEHA, the McDonnell Douglas burden shifting analysis applies to retaliation claims under CFRA.” (Moore v. Regents of Univ. of California (2016) 248 Cal.App.4th 216, 248 (Moore).)

Under the three-part McDonnell Douglas test, the plaintiff has the initial burden of establishing a prima face case of retaliation or discrimination. To establish a prima facie case of retaliation, a plaintiff must show that: (1) plaintiff engaged in protected activity; (2) the employer subjected the plaintiff to an adverse employment action; and (3) the protected activity and the employer’s action were causally connected.” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042 (Yanowitz).) To establish a prima facie case of discrimination, a plaintiff must provide evidence that “(1) he [or she] was a member of a protected class, (2) he [or she] was qualified for the position he [or she] sought or was performing competently in the position he [or she] held, (3) he [or she] suffered an adverse employment action, such as termination . . ., and (4) some other circumstance suggests discriminatory motive.” (Guz, supra, 24 Cal.4th at p. 355.) If the plaintiff establishes a prima facie case, “a presumption of [retaliation or] discrimination arises.” (Ibid.) At this stage, “the burden shifts to the employer to rebut the presumption by producing admissible evidence, sufficient to ‘raise[ ] a genuine issue of fact’ and to ‘justify a judgment for the [employer],’ that its action was taken for a legitimate, nondiscriminatory reason.” [Citations.]” (Id. at pp. 355-356.) If the employer sustains this burden, the presumption of discrimination disappears. [Citations.] The plaintiff must then have the opportunity to attack the employer’s proffered reasons as pretexts for discrimination, or to offer any other evidence of discriminatory motive. [Citations.]” (Id. at p. 356.)

In the context of a motion for summary judgment, “an employer may satisfy its initial burden of proving a cause of action has no merit by showing either that one or more elements of the prima facie case ‘is lacking, or that the adverse employment action was based on legitimate nondiscriminatory factors.’ [Citations.]” (Husman v. Toyota Motor Credit Corp. (2017) 12 Cal.App.5th 1168, 1181-1182.) If the employer shows it had a legitimate, nondiscriminatory reason for the action, the plaintiff “‘may establish pretext “either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer’s proffered explanation is unworthy of credence.”’” (Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 68-69 (Morgan).) “In responding to the employer’s showing of a legitimate reason for the complained-of action, the plaintiff cannot ‘“simply show the employer’s decision was wrong, mistaken, or unwise. Rather, the employee ‘“must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable factfinder could rationally find them ‘unworthy of credence,’ [citation], and hence infer ‘that the employer did not act for the [asserted] non-discriminatory reasons.’”’”’ [Citations.]” (McRae v. Department of Corrections & Rehabilitation (2006) 142 Cal.App.4th 377, 389-390.) “[A]n employer is entitled to summary judgment if, considering the employer’s innocent explanation for its actions, the evidence as a whole is insufficient to permit a rational inference that the employer’s actual motive was discriminatory.” (Guz, supra, 24 Cal.4th at p. 361.)

Plaintiff submits ten (10) objections to the Declaration of David H. Pierce (“Pierce Declaration”). Each of the objections attack portions of Paragraph 6 of the Pierce Declaration. The Court rules as follows.

Defendant argues summary judgment should be granted because Plaintiff does not have evidence to establish all elements of each cause of action. The Court addresses each cause of action in turn.

A. First Cause of Action for Retaliation in Violation of the California Family Rights Act

The First Cause of Action is based upon retaliation against Plaintiff because of her serious health condition and medical leave of absence. (See Complaint, ¶ 22.)

The CFRA “is intended to give employees an opportunity to take leave from work for certain personal or family medical reasons without jeopardizing job security.” (Soria v. Univision Radio Los Angeles, Inc. (2016) 5 Cal.App.5th 570, 600 [cleaned up]; accord, Moore, supra, 248 Cal.App.4th at p. 233.) The CFRA provides that a qualified employee of an employer with 50 or more employees may take up to 12 weeks of family care and medical leave in any 12-month period. (Gov. Code, § 12945.2, subd. (a).) The act prohibits an employer from taking any adverse employment action against an individual because of his or her exercise of the right to family care and medical leave. (Id., subd. (l)(1); Bareno v. San Diego Community College Dist. (2017) 7 Cal.App.5th 546, 560; Soria, at pp. 600-601.)

The McDonnell Douglas burden-shifting analysis applicable to discrimination claims applies to a CFRA retaliation claim. (Bareno, supra, 7 Cal.App.5th at p. 560; Soria, supra, 5 Cal.App.5th at p. 604; Moore, supra, 248 Cal.App.4th at pp. 239, 248, 250; Faust v. California Portland Cement Co. (2007) 150 Cal.App.4th 864, 885.) As with FEHA claims, an employer may move for summary adjudication of a CFRA retaliation claim by presenting evidence that it acted for a legitimate, nonretaliatory reason. (Bareno, at p. 560; Faust, at p. 885.) If the employer satisfies this burden, the burden shifts to the employee to show that the employer’s stated reasons were untrue or pretextual and the employer’s decision was retaliatory. (Bareno, at p. 560; Faust, at p. 885.)

To establish a prima facie case of retaliation, a plaintiff must show that: (1) plaintiff engaged in protected activity; (2) the employer subjected the plaintiff to an adverse employment action; and (3) the protected activity and the employer’s action were causally connected. (Yanowitz, supra, 36 Cal.4th at p. 1042.)

There is no dispute that Plaintiff engaged in protective activity by taking medical leave. Plaintiff presents evidence that Defendant avoided communication with her resulting in her de facto termination. As alleged, Plaintiff’s medical leave and her termination were “causally” connected. “Circumstantial evidence such as proximity in time between protected activity and alleged retaliation may establish a causal link.” (Hawkins v. City of Los Angeles (2019) 40 Cal.App.5th 384, 394.)

If an employee establishes the prima facie case, the employer must offer a legitimate and non-retaliatory reason for the adverse employment action. (Morgan, supra, 88 Cal.App.4th at p. 68). The employer must come forward with additional evidence, but it does not take on a burden of persuasion. (Id.) Once the employer “produces substantial evidence of a legitimate, non-discriminatory [or non-retaliatory] reason for the adverse employment action, the presumption of discrimination [or retaliation] created by the prima facie case simply drops out of the picture.” (Horn v. Cushman & Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 807 [cleaned up].)

Defendant argues it did not terminate Plaintiff; she, in effect, quit. Or alternatively, Defendant did not terminate her because the company was unaware Plaintiff wanted to return to work or was cleared to return to work. Defendant relies on the testimony of Defendant’s Director of Human Services, Manny Marin, to establish that Defendant did not know Plaintiff wanted to return to work because Mr. Marin never received notice from Plaintiff or Mr. Fabian that Plaintiff wished to return to work. (Marin Depo., pp. 22:18-24, 30:2-31:13.) Nor did Mr. Marin receive any document from the workers’ compensation carrier regarding Plaintiff’s ability to return to work. (Marin Depo., p. 22:13-17.) Further, because Defendant was not aware of Plaintiff’s intention to return to work following medical leave and a workers’ compensation claim settlement, Defendant advances the argument that it assumed Plaintiff did not want to return to work. (Marin Depo., pp. 24:18-25:7, 26:15-23.) Pursuant to this assumption, Defendant, in 2022, changed Plaintiff’s employment classification to terminated. (Marin Depo., pp. 23:15-24:1.) As such, Defendant’s argument is that Plaintiff’s own failure to take steps to return to work resulted in her termination. Defendant points to Plaintiff lacks evidence to contradict the foregoing points and cites to portions of Plaintiff’s testimony. (See Plaintiff’s Depo., Ex. A, pp. 29:4-8, 33:15-20, 45:8-20, 47:4-12, 49:15-17, 50:8-15.)

“If the employer satisfies this burden, the burden shifts to the employee to show that the employer’s stated reasons were untrue or pretextual and the employer's decision was retaliatory.” (Bareno, supra, at p. 560; Faust, supra, at p. 885.) Plaintiff presents evidence Defendant’s stated reasons are untrue or pretextual. Plaintiff spoke to Mr. Fabian, her store manager, on the phone and told him she wanted to return to work. (Complaint, ¶ 14.) Plaintiff testified to the same at her deposition.[1] (Plaintiff’s Depo., p 21:8-14.) Mr. Fabian, in turn, told Plaintiff that “he was going to get in touch with Human Resources, and he would let [Plaintiff] know what was going to happen.” (Id., p. 21:15-18.) However, Mr. Fabian did not contact Plaintiff after this conversation. This evidence shows that Mr. Fabian knew Plaintiff wanted to return to work. Whether Mr. Marin spoke to Mr. Fabian about Plaintiff is beside the point. Plaintiff’s conversation with Mr. Fabian establishes Defendant’s knowledge and rebuts Defendant’s argument re: lack of knowledge. Defendant does not explain why Mr. Fabian’s knowledge of Plaintiff’s readiness to return to work is insufficient to establish Defendant’s knowledge.[2]

Moreover, Plaintiff sent a letter to Human Resources by certified mail after Mr. Fabian did not follow up with Plaintiff. The letter stated Plaintiff’s intention to return to work. (Plaintiff’s Evidence, Ex. 6.) Pursuant to Evidence Code section 641, there is a rebuttable presumption that Defendant received Plaintiff’s letter. “A letter correctly addressed and properly mailed is presumed to have been received in the ordinary course of mail.” (Evid. Code, § 641.) As such, Plaintiff provides evidence she also contacted Defendant by mail. Plaintiff demonstrates she notified Defendant of her desire to return to work following CFRA leave on at least two occasions. Plaintiff was met with no response.

Plaintiff presents sufficient evidence to show Defendant’s lack of knowledge defense is untrue and/or pretextual.

Given the close proximity in time between Plaintiff’s notification that she wanted to return to work (e.g., her conversation with Mr. Fabian and her letter to Human Resources) and Defendant’s failure to respond (followed thereafter by the change in Plaintiff’s employment classification to “terminated”), Plaintiff presents a triable issue of material fact with respect to retaliation. Having received notice, Defendant’s inaction can be reasonably construed as an affirmative retaliatory decision to terminate Plaintiff’s employment because she took CFRA leave. Plaintiff successfully rebuts Defendant’s claim of a legitimate, non-retaliatory reason.

Like the First Cause of Action, the Second Cause of Action is based upon discrimination against Plaintiff because of her serious health condition and medical leave of absence. (See Complaint, ¶ 22.) The foregoing analysis applies with equal force to the Second Cause of Action.

Plaintiff alleges that Defendant unlawfully discriminated against her because of her disability, perceived disability, and/or history of disability by terminating her employment. (Complaint, ¶ 45.)

To establish a prima facie case of disability discrimination, the plaintiff must establish that she suffered from a disability, that she could perform the essential duties of the job, and that she was subjected to an adverse employment action because of the disability. (See Green v. California (2007) 42 Cal.4th 254, 262.) “The employee must also show the employer knew of his or her disability at the time it made the adverse employment decision. [Citation.].” (Prue v. Brady Co./San Diego, Inc. (2015) 242 Cal.App.4th 1367, 1378.) “To qualify as a member of the protected class under FEHA, [plaintiff] must demonstrate [her] impairment constitutes a disability according to the statutory definition. [Citation.] It is insufficient for [plaintiff] to allege a disability or to identify an injury or physical condition. To proceed as a physically disabled person under the first prong of the statutory definition, [plaintiff] must demonstrate his injury or physical condition … makes ‘difficult’ the achievement of work or some other major life activity.” (Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34, 47.)

Plaintiff does not establish a prima facie case of disability discrimination. Specifically, Plaintiff does not point to any evidence showing Plaintiff suffered a disability within the meaning of FEHA. And even if Plaintiff had a disability, she does not establish that Defendant knew Plaintiff had a disability or restriction. Indeed, Plaintiff refers opaquely to a disability throughout her opposition without any discussion or elaboration. Critically, absent from Plaintiff’s conversation with Mr. Fabian or the letter that she sent to Human Services is any indication that she had been medically cleared to work with work restrictions or similarly, that required accommodations because she was disabled. “It is insufficient for [plaintiff] to allege a disability or to identify an injury or physical condition. To proceed as a physically disabled person under the first prong of the statutory definition, [plaintiff] must demonstrate [her] injury or physical condition … makes ‘difficult’ the achievement of work or some other major life activity.” (Gelfo, 140 Cal.App.4th at p. 47.) Given that Defendant was not notified that Plaintiff had a condition which made difficult the achievement of work, Plaintiff cannot establish that she was terminated because of her physical condition.

D. Fourth Cause of Action for Failure to Engage in a Good Faith Interactive Process in Violation of the FEHA

FEHA requires employers to engage in a good faith interactive process to determine effective reasonable accommodations, if any, “in response to a request for reasonable accommodation by an employee . . . with a known physical or mental disability . . . .” (Gov. Code, § 12940, subd. (n); Raine v. City of Burbank (2006) 135 Cal.App.4th 1215, 1222.) To establish a claim for failure to engage in the interactive process, a plaintiff must show: (1) defendant was an employer; (2) plaintiff was defendant’s employee; (3) plaintiff was disabled; (4) plaintiff requested reasonable accommodation; (5) plaintiff was willing to participate in a timely good faith interactive process with plaintiff to determine whether a reasonable accommodation could be made; (6) defendant failed to participate in this process; (7) plaintiff was harmed; and (8) defendant’s failure to engage in a good-faith interactive process was a substantial factor in causing plaintiff’s harm. (CACI No. 2546.)

Defendant argues Plaintiff cannot establish that Defendant knew of her disability, or of her request for reasonable accommodation. The Court agrees. As discussed above, there is no evidence to show Plaintiff suffered a disability. Moreover, there is no evidence that Plaintiff requested a reasonable accommodation; Plaintiff merely stated her intention to return to work. Plaintiff argues that she was cleared to work with restrictions but, as stated above, nowhere does Plaintiff show that information was provided to Defendant. Elements three and four of this claim are not substantiated. Plaintiff does not establish a prima facie case.

E. Fifth Cause of Action for Failure to Provide Reasonable Accommodations in Violation of the FEHA

“There are three elements to a failure to accommodate action: ‘(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.” (CACI No. 2541; Hernandez v. Rancho Santiago Cmty. College Dist. (2018) 22 Cal.App.5th 1187, 1193-1194.

“Generally, ‘[t]he employee bears the burden of giving the employer notice of the disability .... An employer, in other words, has no affirmative duty to investigate whether an employee’s illness might qualify as a disability .... [T]he employee can’t expect the employer to read his mind and know he secretly wanted a particular accommodation and sue the employer for not providing it. Nor is an employer ordinarily liable for failing to accommodate a disability of which it had no knowledge.” (Featherstone v. Southern California Permanente Medical Group (2017) 10 Cal.App.5th 1150, 1167.)

Here, the Fifth Cause of Action fails because there is no proof that Plaintiff had a disability covered by the FEHA or that Plaintiff provided notice of her disability. Plaintiff fails to meet her initial burden.

To prevail on a FEHA retaliation claim, a plaintiff must prove that (1) she engaged in a protected activity; (2) she was discharged; (3) that her request for medical leave was a substantial motivating reason for her termination; (4) that she was harmed; and (5) that defendant’s decision to discharge plaintiff was a substantial factor in causing plaintiff harm. (CACI No. 2505.)

Here, the Court has found Plaintiff has presented sufficient evidence to overcome Defendant’s motion for summary adjudication of her First Cause of Action for Retaliation in Violation of CFRA. The same evidence prevails here. Plaintiff presents sufficient evidence to raise a triable issue of fact whether her request for medical leave was a substantial motivating reason for Defendant’s failure to respond to her request for employment and her de facto termination.

Defendant’s motion for summary adjudication as to the Sixth Cause of Action for Retaliation of FEHA is DENIED.

G. Seventh Cause of Action for Failure to Prevent Discrimination and Retaliation in Violation of FEHA

A cause of action for failure to prevent discrimination or retaliation requires the following elements: (1) plaintiff was an employee of defendant; (2) plaintiff was subjected to discrimination/retaliation in the course of employment; (3) defendant failed to take all reasonable steps to prevent the discrimination/retaliation; (4) plaintiff was harmed; and (5) defendant’s failure to take all reasonable steps to prevent discrimination/retaliation was a substantial factor in causing plaintiff’s harm. (CACI No. 2527; Jumaane v. City of Los Angeles (2015) 241 Cal.App.4th 1390, 1410.) “The employer’s duty to prevent discrimination and retaliation is affirmative and mandatory.” (Northrop Grumman Corp. v. Workers’ Comp. Appeals Bd. (2002) 103 Cal.App.4th 1021, 1035.)

Because there is a triable issue as to whether Defendant retaliated and discriminated against Plaintiff, there is a triable issue as to whether Defendant failed to prevent that conduct. Accordingly, the motion for summary adjudication of the Seventh Cause of Action is DENIED.

H. Eighth Cause of Action for Wrongful Termination in Violation of Public Policy

“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.” (CACI No. 2430; Garcia-Brower v. Premier Automotive Imports of CA, LLC (2020) 55 Cal.App.5th 961, 973.)

The CFRA embodies the public policy of the State of California. Given that the Court finds there is a triable issue as to whether Defendant wrongfully terminated Plaintiff’s employment in retaliation for taking CFRA leave, the motion for summary adjudication of the Eighth Cause of Action is DENIED.

The Motion for Summary Adjudication of the Third, Fourth, and Fifth Causes of Action is Granted.

The Motion for Summary Adjudication of the First, Second, Sixth, Seventh, and Eighth Causes of Action is Denied.

[1] Plaintiff further states in her declaration that she spoke with Mr. Fabian a second time on August 28, 2020. (Declaration of Veronica Yameleth Bonilla, ¶ 6.) Mr. Fabian promised to call Plaintiff on August 30, 2020. (Id.) Mr. Fabian never returned Plaintiff’s call.

[2] “An agent is one who represents another, called the principal, in dealings with third persons. Such representation is called agency.” (Civ. Code, § 2295.) “Unless required by or under the authority of law to employ that particular agent, a principal is responsible to third persons for the negligence of his agent in the transaction of the business of the agency, including wrongful acts committed by such agent in and as a part of the transaction of such business, and for his willful omission to fulfill the obligations of the principal.” (Civ. Code, § 2338.) “Agency may be implied from the circumstances and conduct of the parties[.]” (Michelson v. Hamada (1994) 29 Cal.App.4th 1566, 1579.) Here, it is undisputed that Mr. Fabian was employed by Defendant and was Plaintiff’s manager. It is further undisputed that Plaintiff first contacted Mr. Fabian to initiate her return to work. Given this background, Mr. Fabian acted as Defendant’s agent. (See e.g., Gov. Code § 12926 [defining “employer” to “include[] any person regularly employing five or more persons, or any person acting as an agent of an employer, directly or indirectly, the state or any political or civil subdivision of the state, and cities...”; see also Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 67 [noting that the use of the term “agent” was “to ensure that employers would be liable for discrimination by their supervisory employees.”).]