Judge Kerry Bensinger, Case Number: 21STCV46480, Date: 2025-02-04 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.

In deciding whether to submit on the tentative ruling or attend the hearing and present oral argument, please keep the following in mind:

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.

Oral argument is not an opportunity to simply regurgitate that which a party set forth in its pleadings. Nor, is oral argument an opportunity to "make a record" when there is no court reporter present and the statements and arguments of counsel are already part of the record because they were set forth in the pleadings. Finally, simply because a party or attorney disagrees with the court's analysis and ruling or is not satisfied with it does not necessarily warrant oral argument when no new arguments will be articulated.

If you submit on the tentative, you must immediately notify all other parties email that you will not appear at the hearing. If you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the motions. If all parties to the motion submit, this tentative ruling will become the final ruling after the hearing date and it will be memorialized in a minute order. This tentative ruling is not an invitation, nor an opportunity, to file further documents relative to the hearing in question. No such document will be considered by the Court.

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

MOVING PARTIES: Defendants RJP Investment Group, Inc. and 1515 S Coast LLC dba La Quinta Inn

On July 30, 2024, plaintiff Aziz Damak (“Plaintiff”) filed this employment law action against defendants RJP Investment Group, Inc. dba Motel 6 – Bell Gardens (“RJP”), 1515 S Coast LLC dba La Quinta Inn (erroneously sued as La Quinta Inn by Wyndham Costa Mesa) (“1515 S Coast”), and Does 1 to 99, inclusive, asserting causes of action for (1) Labor Code section 1102.5 (retaliation), (2) Fair Employment and Housing Act (“FEHA”) discrimination: disparate treatment, (3) FEHA harassment: work environment harassment, (4) FEHA retaliation, (5) FEHA failure to prevent harassment, discrimination, or retaliation, (6) wrongful discharge in violation of public policy, (7) failure to provide meal and rest periods, (8) failure to pay all wages due, including overtime, (9) failure to provide accurate wage statements, (10) waiting time penalty, (11) failure to provide employment records upon demand, and (12) assault/battery.

The operative Complaint alleges the following, among other things. Defendants hired Plaintiff around July 19, 2020, as a receptionist. (Compl., ¶ 17.) “During Plaintiff’s employment, Plaintiff was … subjected to harassment and bullying based on his race, national origin, and/or religion. [Nonparties] Sanjay Patel and Jayesh Patel [presumably employees] regularly threatened to have Plaintiff deported.” (Compl., ¶ 22.) Around March 23, 2021, a Black guest requested to rent a room, and the defendants instructed Plaintiff to reject the guest because of the guest’s race/color. (Compl., ¶ 25.) After Plaintiff refused to comply with that request, the defendants wrongfully discharged Plaintiff. (Compl., ¶ 26.) Despite being wrongfully discharged, Plaintiff remained a tenant of the defendants. (Compl., ¶ 27.) Around May 25, 2021, the defendants angrily confronted Plaintiff about his ongoing tenancy and unlawfully demanded him to permanently leave the premises. (Compl., ¶ 28.) In response, Plaintiff tried to call 911 for assistance. (Compl., ¶ 28.) To prevent Plaintiff from calling the police and reporting the unlawful conduct, Sanjay Patel knocked Plaintiff’s phone out of his hand and when Plaintiff dropped to the ground to pick up the phone, Sanjay Patel started kicking Plaintiff and his phone. (Compl., ¶ 29.) During Plaintiff’s employment, Plaintiff was also not given proper meal and rest breaks or pay stubs. (Compl., ¶ 21.)

On November 1, 2024, RJP and 1515 S Coast (collectively, “Defendants”) filed the instant motion for summary adjudication along with their compendium of exhibits (“DCOE”).

On January 14, 2025, Plaintiff filed his opposition along with his separate statement in response to Defendants’ separate statement of undisputed material facts (“UMF”).

On January 23, 2025, Defendants filed their evidentiary objections, proof of service of reply papers, and proposed order.

The Court notes that Plaintiff did not file any evidentiary objections to Defendants’ evidence.

On January 23, 2025, Defendants filed evidentiary objections to Plaintiff’s evidence. The Court rules on those objections as follows.

· Objection No. 1: OVERRULED. Contrary to Defendants’ argument, the declaration Plaintiff filed with the Court on January 14, 2025, does state that it was executed in California and brought under penalty of perjury under the laws of the State of California as required by Code of Civil Procedure section 2015.5. Therefore, the Court will consider the declaration evidence.

· Objection Nos. 2, 3, 5, 7-9, 11-13, 22, -24, 29-30, 33, 37, 46, 48-50, 57: OVERRULED.

· Objection Nos. 4, 6, 10, 14-17, 19-20, 21, 25-28, 31-36, 38-45, 47, 51-55, and 56, 58-65: SUSTAINED.

A defendant moving for 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 or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(2).)

“When deciding whether to grant summary judgment [or adjudication], the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467; Code Civ. Proc., § 437c, subd. (c).)

Defendants move for summary adjudication of the first six (6) causes of action in the Complaint, arguing there are no triable issues of material fact as to those claims.

“Section 1102.5 provides whistleblower protections to employees who disclose wrongdoing to authorities.” (Lawson v. PPG Architectural Finishes, Inc. (2022) 12 Cal.5th 703, 709 (Lawson).)

The statute “prohibits an employer from retaliating against an employee for sharing information the employee ‘has reasonable cause to believe ... discloses a violation of state or federal statute’ or of ‘a local, state, or federal rule or regulation’ with a government agency, with a person with authority over the employee, or with another employee who has authority to investigate or correct the violation. [Citation.]” (Lawson, supra, 12 Cal.5th at p. 709 [emphasis added]; Lab. Code, § 1102.5, subd. (b).)

The statute also prohibits “[a]n employer, or any person acting on behalf of the employer, … [from] retaliat[ing] against an employee for refusing to participate in an activity that would result in a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation.” (Lab. Code, § 1102.5, subd. (c) [emphasis added].)

In Lawson, the California Supreme Court “held that Labor Code section 1102.6, adopted in 2003, provides the governing framework for analyzing whistleblower retaliation claims brought under Labor Code section 1102.5.” (Scheer v. Regents of the University of California (2022) 76 Cal.App.5th 904, 914 (“Scheer”).)

The statute “‘places the burden on the plaintiff to establish, by a preponderance of the evidence, that retaliation for an employee’s protected activities was a contributing factor in a contested employment action. The plaintiff need not satisfy McDonnell Douglas [discussed later in this tentative] in order to discharge this burden.’” (Scheer, supra, 76 Cal.App.5th at p. 914. [original italics removed; emphasis added].)

“‘Once the plaintiff has made the required showing, the burden shifts to the employer to demonstrate, by clear and convincing evidence, that it would have taken the action in question for legitimate, independent reasons even had the plaintiff not engaged in protected activity.’ [Citation.]” (Scheer, supra, 76 Cal.App.5th at p. 914 [original italics removed; emphasis added].)

The analysis outlined in Labor Code section 1102.6 not only applies at trials, but also in summary judgment and summary adjudication proceedings. (See Lawson, supra, 12 Cal.5th at p. 717 [“Nothing in the text of section 1102.6 supports [a] bifurcated approach, where one standard [the McDonnell Douglas test would govern section 1102.5 cases on summary judgment and a different standard [Labor Code section 1102.6] would govern cases at trial”].)

Therefore, on this motion, Plaintiff has the initial burden of proving by a preponderance of the evidence that (1) he engaged in a protected activity within the meaning of Section 1102.5 and (2) his alleged protected activity was the contributing factor in his alleged adverse employment actions. (Katie V. v. Superior Court (2005) 130 Cal.App.4th 586, 594 (“Katie V.”) [“‘“A preponderance of the evidence standard ... simply requires the trier of fact ‘to believe that the existence of a fact is more probable than its nonexistence....’”’ [Citation]”].)

If Plaintiff meets that burden, then Defendants have the burden of submitting clear and convincing evidence that they would have taken the alleged adverse employment actions (e.g., terminating Plaintiff) even if Plaintiff had not engaged in a protected activity.

“‘The pleadings delimit the issues to be considered on a motion for summary judgment. [Citation.]’ [Citation.]” (Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1253 (“Laabs”).)

Here, the Complaint alleges that the Plaintiff engaged in the following protected activities:

1. Refusing to comply with Defendants’ instruction to reject a guest because of that guest’s race or color (Compl., ¶¶ 25, 33);

2. Complaining about Labor Code violations (i.e., not being paid overtime, not receiving meal and rest breaks, being paid less than other employees based on his race, national origin, religion, and not being paid all of his wages) (Compl., ¶¶ 3, 4, 33);

3. Participating “as a witness in a discrimination or harassment complaint …” (Compl., ¶ 63); and

4. Reporting or resisting any form of discrimination or harassment (Compl., ¶ 63).

With regard to his allegation that he participated as a witness in a discrimination or harassment complaint (No. 3 above), Plaintiff has not submitted any evidence of engaging in that activity.

With regard to his allegation that he refused to comply with the Defendants’ instruction to discriminate against a guest (No. 1 above), Plaintiff has failed to prove that (A) he had reasonable cause to believe that the Defendants were discriminating against that guest in the first place, and (B) that he refused to comply with Defendants request. To prove that Defendants discriminated against a guest, Plaintiff submits his declaration and deposition transcripts in which he testified that on March 16, 2021, an employee called “Peter” told Plaintiff to place a guest in Room 213, commenting that “they dirty they smoker,” even though the guest requested another room, there were no past records of that guest staying at the motel, and there was no evidence the guest was a smoker. (Declaration of Aziz Damak, p. 4:15-17; PCOE, Exhibit A – a copy of Plaintiff’s Deposition Transcripts (“Plaintiff’s Depo.”), pp. 186:5-191:25.) However, even if it is true that Peter said that the guest was “dirty” and a “smoker,” there is no proof those words were in anyway connected to the guest’s race. Plaintiff is assuming without providing evidence that Peter instructed Plaintiff to place that guest in Room 213 because of that guest’s race. (See Plaintiff’s Depo., p. 191:12-25 [“Q. Did Peter make any specific comment about the guest being African American? ¶ A. Yes. ¶ Q. Did he use the words ‘Black’ or ‘African American’ or anything that was derogatory towards African Americans? ¶ A. I consider the words ‘dirty’ and ‘smoker’ as part of this function to be derogatory, especially the word ‘dirty.’ ¶ Q. Right, but that’s not specific to African Americans, is it? ¶ A. He said, ‘They’”].) Plaintiff’s speculation does not prove he had reasonable cause to believe that Peter had engaged in discrimination towards the motel guest. Plaintiff has also failed to prove he refused to comply with Peter’s request.

With regard to Plaintiff’s allegation that he reported “any form of discrimination or harassment” (No. 4 above), Plaintiff does not discuss what he meant by that allegation in his opposition. His opposition focuses on his complaints of the alleged Labor Code violations and discrimination against the Black guest. (Opposition, pp. 14:3-15.)

With regard to Plaintiff’s alleged complaints about Labor Code violations (No. 2 above), Plaintiff offers the following evidence. During his deposition, Plaintiff testified that on one occasion, when he tried to refuse to work a second unpaid shift without a break, the Defendants threatened to throw his stuff out of his room and put him outside on the street. (PCOE, Exhibit A (Plaintiff’s Depo.), p. 148:19-22.) Plaintiff also testified he was terminated because the Defendants “heard [he] was going to file a labor complaint.” (PCOE, Exhibit A (“Plaintiff’s Depo.”), p. 141:15-16.) When asked why he believed that, Plaintiff testified as follows. On March 23, 2021, Plaintiff was in a meeting with “Mr. Jayesh, Mr. Sanjay, and Mr. Rupal” in an office in La Quinta. (Plaintiff’s Depo., p. 141:17-142:12.) During that meeting, they asked him what was going on because they “heard” that he was “taking” them “to labor.” (Plaintiff’s Depo., pp. 142:13-143:21.) Plaintiff then testified that they talked for 30 minutes and then as soon as Plaintiff mentioned racism, they said: “Oh, now there’s racism? Okay, this is done here.’ ‘This’ in reference to the job.’ …. And they terminated [him] on the spot.” (Plaintiff’s Depo., pp. 143:22-144:4; see also 185:18-186:11 [testifying that he was told during the meeting that he was being terminated because they heard he was making a complaint to the labor board or someone like that].) [1]

Based upon the foregoing evidence, Plaintiff has met his initial burden of showing by a preponderance of the evidence Defendants retaliated against him because they “believe[d] that [he] disclosed or may disclose [labor] information, to a government or law enforcement agency, to a person with authority over the employee or another employee who has the authority to investigate, discover, or correct the violation or noncompliance ….” (Lab. Code, § 1102.5, subd. (b).) From the evidence Plaintiff has presented, a trier of fact could believe it was more probable than not that Defendants’ belief that Plaintiff would report their alleged labor violations to relevant authorities was a contributing factor in their decision to terminate him.

The burden shifts. Defendants must establish by clear and convincing evidence, that they would have terminated Plaintiff for legitimate, independent reasons even if they believed that he disclosed or may disclose labor violations to relevant authorities. (Katie V., supra, 130 Cal.App.4th at p. 594 [“‘“Clear and convincing” evidence requires a finding of high probability [, or] evidence ... “‘so clear as to leave no substantial doubt’; ‘sufficiently strong to command the unhesitating assent of every reasonable mind.’”’ [Citation]”].)

In their motion, Defendants argue they terminated Plaintiff for poor communication and job performance, including failing to follow motel policies. (Motion, p. 17:4-5.) As evidence, Defendants submit the declaration of Jayesh Patel (“Patel”), the owner of RJP, which owns and operates Motel 6 in Bell Gardens, California. (Declaration of Jayesh Patel, filed on November 1, 2024 (“Patel Decl.”), ¶ 2.) Patel testifies as follows. “Throughout [Plaintiff] Damak’s employment, there were issues with Damak’s ability to follow Motel 6 and La Quinta Inn’s policies and procedures, as well as his supervisors’ instructions. [They] received reports that Damak was often late for his shifts, and a couple of times he did not show up for work. One time, Damak was so late for his shift at Motel 6 that Rupal Patel and [Patel] drove to the bus station to pick him up.” (Patel Decl., ¶ 5.) “Sanjay Patel and [Patel] occasionally stopped by La Quinta Inn during Damak’s night shifts. On at least one occasion, Damak had shut down the office, left the front desk unmanned, and went back to his room. Damak then went back and forth from his room to the front desk during the shift. Despite this, [they] did not write him up, suspend him, or terminate him.” (Patel Decl., ¶ 7.) Patel “also noticed discrepancies in the room counts during Damak’s shifts, as well as dirty rooms and stolen room keys. [Patel] suspected he was renting rooms off the books and giving away rooms for free. [Patel] explained to Damak that La Quinta Inn is a business, not a shelter, and that he could not give rooms away.” (Patel Decl., ¶ 8.) “Despite [Patel’s] efforts to reprimand him, Damak’s misconduct continued for a period of time, and eventually he started doing whatever he wanted and dressing however he wanted for his shifts, even though it did not conform to [the] dress code policy.” (Patel Decl., ¶ 9.) In addition, “[i]t was not uncommon for Damak to harass and antagonize his coworkers. On one occasion, Damak accessed one of his La Quinta Inn coworker’s sales reports and tried to use them to ‘blackmail’ the colleague, Motel 6, and La Quinta Inn. Toward the end of Damak’s employment, [they] also discovered Damak had been sexually harassing another La Quinta Inn coworker by sending him sexually explicit messages, in violation of La Quinta Inn’s Sexual Harassment Prevention Policy.” (Patel Decl., ¶ 10.) “In March 2021, Damak stopped coming to work at La Quinta Inn. He did not inform [the Defendants] that he would no longer be working as scheduled.” (Patel Decl., ¶ 11.) “On March 23, 2021, Sanjay Patel and [Patel] called Damak into the La Quinta Inn office. [They] had decided to terminate his employment because of his poor communications, insubordination, harassment, and substandard job performance, which Damak never seemed to improve. When [they] told Damak to take some time to look for another job, he became angry and called [them] ‘racists’ who did not rent to Black people.” (Patel Decl., ¶ 12.)

However, none of that evidence addresses or disputes Plaintiff’s contention that he complained to them about labor violations, Defendants believed he would report them to “labor,” and that belief was a contributing factor in his termination.

Defendants have failed to prove by clear and convincing evidence that they would have terminated Plaintiff for legitimate, independent reasons even if Plaintiff had not complained about labor violations and they believed he would report those alleged violations.

The request for summary adjudication of the first cause of action for violation of Labor Code section 1102.5 retaliation is DENIED.

“‘Disparate treatment’ is intentional discrimination against one or more persons on prohibited grounds. [Citations.]’” (Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 354, fn. 20.)

“California uses the three-stage burden-shifting test established by the United States Supreme Court for trying claims of discrimination based on a theory of disparate treatment,” known as the McDonnell Douglas test. (Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1004 (“Scotch”); McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 802–804.)

“Under the first step of the McDonnell Douglas test, the plaintiff may raise a presumption of discrimination by presenting a ‘“prima facie case,”’ the components of which vary depending upon the type of discrimination alleged. [Citation.]” (Zamora v. Security Industry Specialists, Inc. (2021) 71 Cal.App.5th 1, 31 (“Zamora”).)

“Under the second step of the McDonnell Douglas test, ‘the employer may dispel the presumption merely by articulating a legitimate, nondiscriminatory reason for the challenged action.’” (Zamora, supra, 71 Cal.App.5th at p. 32 [internal citations removed].)

“Under the third step of the test, the ‘plaintiff must ... have the opportunity to attack the employer’s proffered reasons as pretexts for discrimination, or to offer any other evidence of discriminatory motive.’ [Citation.]” (Zamora, supra, 71 Cal.App.5th at p. 32.)

Here, the Complaint alleges that Defendants took the following adverse actions against Plaintiff because of his ancestry, color, national origin, race, or religious creed: (1) asked impermissible non-job-related questions; (2) denied him employment benefit or privilege; (3) denied him equal pay; (4) denied him promotions; (5) denied him work opportunities or assignments; (6) reprimanded him; and (7) and terminated him. (Compl., ¶¶ 44, 44.) Plaintiff was also allegedly paid less than his coworkers who were Indian. (Compl., ¶ 23.)

“The elements of a religious creed discrimination claim are that: the plaintiff had a bona fide religious belief; the employer was aware of that belief; and the belief conflicted with an employment requirement.” (Friedman v. Southern Cal. Permanente Medical Group (2002) 102 Cal.App.4th 39, 45.)

The prima facie elements of ancestry, color, national origin, and race-based discrimination are that “‘(1) [plaintiff] was a member of a protected class, (2) [he] was qualified for the position [he] sought or was performing competently in the position [he] held, (3) [he] suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some other circumstance suggests discriminatory motive.’ [Citation.]” (Mackey v. Board of Trustees of California State University (2019) 31 Cal.App.5th 640, 661 [discussing race-based discrimination]; Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1067-1068 [discussing national origin discrimination]; Hatai v. Department of Transportation (2013) 214 Cal.App.4th 1287, 1299, disapproved on other grounds in Williams v. Chino Valley Independent Fire Dist. (2015) 61 Cal.4th 97 [holding that the plaintiff failed to show “that ‘ancestry’ and ‘color’ were not adequately subsumed within the terms ‘national origin and/or race’].)

“When seeking summary judgment or summary adjudication in an employment discrimination case, the burdens established by the McDonnell Douglas framework are altered.” (Zamora, supra, 71 Cal.App.5th at p. 32.)

“If the employer presents admissible evidence either that [1] one or more of plaintiff’s prima facie elements is lacking, or …[2] the adverse employment action was based on legitimate, nondiscriminatory factors, the employer will be entitled to summary judgment [or adjudication] unless the plaintiff produces admissible evidence which raises a triable issue of fact material to the defendant’s showing.” (Caldwell v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 203 [emphasis added].)

Here, the Court finds Defendants have met their burden of proving Plaintiff’s prima facie elements of religious creed discrimination are lacking. During his deposition, Plaintiff was asked whether he believed Motel 6 and La Quinta treated him differently because he was Muslim, and he answered he “wouldn’t know that.” (DCOE, Exhibit A (“Damak Depo.”), p. 146:4-6.) When counsel asked: “Did they ever say or do anything that made you believe that they were treating you differently because you were a Muslim?” (Damak Depo., p. 146:7-9.) Damak testified: “Nothing that [he had] seen … firsthand ….” (Damak Depo., p. 146:10-11.) Therefore, according to Plaintiff, he did not experience different treatment because of being a Muslim.

The Court also finds that Defendants have met their burden of proving that Plaintiff’s termination was based on legitimate reasons unrelated to his ancestry, color, national origin, and race. As stated above, Patel testified in his declaration that Plaintiff was terminated because of his poor job performance and insubordination, among other issues, unrelated to his ancestry, color, national origin, and race.

Accordingly, the burden shifts to Plaintiff to show that his termination was based on his ancestry, color, national origin, and race.

Here, Plaintiff has failed to meet that burden. During his deposition, Plaintiff testified that he was only terminated for two reasons (1) that Defendants heard he would make a complaint to “labor” and (2) he complained about racism towards African Americans (i.e., the guest incident discussed above). (PCOE, Exhibit A (Plaintiff’s Depo.), pp. 185:21-14.) However, Plaintiff has not produced any evidence showing he was terminated or subjected to any other alleged adverse employment action because of his ancestry, color, national origin, race, or religious creed.

Therefore, Defendants’ request for summary adjudication of the second cause of action for “FEHA discrimination: disparate treatment” is GRANTED.

“To establish a prima facie case of unlawful harassment under FEHA, a plaintiff must show ‘(1) he was a member of a protected class; (2) he was subjected to unwelcome ... harassment; (3) the harassment was based on [the plaintiff’s membership in an enumerated class]; (4) the harassment unreasonably interfered with his work performance by creating an intimidating, hostile, or offensive work environment; and (5) [the employer] is liable for the harassment.’ [Citation.]” (Martin v. Board of Trustees of California State University (2023) 97 Cal.App.5th 149, 170.)

“Whether the harassment is sufficiently severe or pervasive to create a hostile work environment ‘must be assessed from the “perspective of a reasonable person belonging to [same protected class as] the plaintiff.”’ [Citation.] ‘In making this assessment, we consider several factors, including ‘“the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.”’ [Citation.]” (Cornell v. Berkeley Tennis Club (2017) 18 Cal.App.5th 908, 940).)

An employer “is liable only ‘if the entity, or its agents or supervisors, knows or should have known of this conduct and fails to take immediate and appropriate corrective action.’ (Gov. Code, § 12940, subd. (j)(1).)” (Martin, supra, 97 Cal.App.5th at p. 170.)

Here, the Complaint alleges that “Plaintiff was subjected to harassing conduct due to one or more of the following protected statuses applicable to Plaintiff: ancestry; color; national origin; race; religious creed.” (Compl., ¶ 51.)

Defendants move for summary adjudication of the harassment claim, arguing that Plaintiff cannot prove any of their conduct was motivated by any of those characteristics (e.g., his race) for the following reasons.

Plaintiff testified during his deposition that he suffered the following harassment during his employment: he was threatened that he would be made homeless, kicked out, fired, and have his personal property thrown outside of his room “just for refusing to do an unpaid shift. … [T]hose kind of threats were the ones that permeated the employment, during the employment part.” (DCOE, Exhibit A (Damak Depo.), p. 149:7-12.) Plaintiff also testified that he was harassed when he was reprimanded for being six (6) minutes late to the job when other employees had been late but were not reprimanded. (Damak Depo., pp. 149:22-151:11.)

When counsel asked whether Plaintiff believed Defendants “made those threats because [Plaintiff was] Arab, Middle Eastern, or Muslim …,” Plaintiff did not answer a straight yes or no or present any proof of harassment based on those characteristics. Instead, Plaintiff testified that it was his “belief” that “they would not say those things if an American who was white refused to do a second unpaid, forceful shift in the same day without time in between.” (Damak Depo., p. 151:12-22.)

Plaintiff’s speculation that Defendants would not have threatened a White American is not proof that he was subjected to harassment within the meaning of FEHA on the basis of his ancestry, color, national origin, race, and religious creed.

Defendants have met their burden of proving that Plaintiff’s FEHA harassment claim lacks merit.

The burden shifts to Plaintiff to show that triable issues of material fact exist as to that claim.

Plaintiff fails to meet his burden of showing he was subjected to harassment because of his ancestry, color, national origin, race, and religious creed. In his opposition, Plaintiff argues (without pointing to any evidence) that he has “ma[de] clear that he was being harassed because he was an Arab …,” and that whether he suffered harassment is a question of fact for the jury. (Opposition, p. 19:2-14.) Contrary to Plaintiff’s arguments, he has not made it clear he was harassed because of any protected characteristic. In addition, when opposing a motion for summary adjudication, a “plaintiff … 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)(2).) Plaintiff fails to set forth specific facts showing he was harassed because of his ancestry, color, national origin, race, and religious creed.

Defendants’ motion for summary adjudication of the third cause of action for “FEHA harassment: work environment harassment” is GRANTED.

Under the fourth cause of action, Plaintiff alleges that Defendants retaliated against him in violation of FEHA because he “participated as a witness in a discrimination or harassment complaint; [and] reported or resisted any form of discrimination or harassment.” (Compl., ¶ 63.)

The retaliation provision of FEHA “makes it an unlawful employment practice ‘[f]or any employer ... to discharge, expel, or otherwise discriminate against any person … because the person has filed a complaint, testified, or assisted in any proceeding under [FEHA].’ [Citation.]” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042 [italics removed] (discussing Gov. Code, § 12940, subd. (h)).)

“In an action asserting [a] claim … [for] retaliation [under FEHA], the court applies “a three-stage burden-shifting test [i.e., the McDonnell Douglas test].” (Batarse v. Service Employees Internat. Union, Local 1000 (2012) 209 Cal.App.4th 820, 831 (“Batarse”); (Zamora, supra, 71 Cal.App.5th at pp. 31-32 [discussing the three stages (see above)].)

“A defendant moving for summary judgment, however, may skip to the second step of the analysis and demonstrate that it had a legitimate business reason, unrelated to race, other protected classification, or retaliation, for taking its employment action.” (Batarse, supra, 209 Cal.App.4th at p. 831.) “The plaintiff then has ‘the burden to rebut this facially dispositive showing by pointing to evidence which nonetheless raises a rational inference that intentional discrimination [or retaliation] occurred.’ [Citation.]” (Ibid. [italics removed].)

The Court finds that Defendants have met their initial burden of demonstrating that they had legitimate business reasons unrelated to Plaintiff’s alleged protected activities. As discussed above, Patel testified that Defendants terminated Plaintiff because of “because of his poor communications, insubordination, harassment, and substandard job performance, which [Plaintiff] never seemed to improve.” (Patel Decl., ¶ 12.)

Therefore, the burden shifts to Plaintiff to show that triable issues of material fact exist as to his FEHA retaliation claim.

Here, the Court finds Plaintiff fails to meet his burden. Even though the Court found triable issues of material fact regarding whether Plaintiff was terminated because he might file a labor complaint (see discussion above regarding Plaintiff’s retaliation claim under Labor Code section 1102.5), “[t]he retaliation provision of FEHA forbids an employer ‘to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under’ FEHA. ([Gov. Code] § 12940, subd. (h).)” (Husman v. Toyota Motor Credit Corp. (2017) 12 Cal.App.5th 1168, 1192.) Here, Plaintiff argues and testified in his deposition that he complained about racism towards one guest (see discussion above). However, protected activity under FEHA “must … [be] activity the employee reasonably believes constitutes unlawful discrimination ….” (Wawrzenski v. United Airlines, Inc. (2024) 327 Cal.Rptr.3d 245, 280 [emphasis added].) “‘To meet his burden on this issue, “[a] plaintiff must not only show that he subjectively (that is, in good faith) believed that his employer was engaged in unlawful employment practices, but also that his belief was objectively reasonable in light of the facts and record presented.”’ [Citations.]” (Ibid. [italics in original].) Here, Plaintiff fails to show his belief that the guest was discriminated against based on race was “objectively” reasonable. As discussed above, Plaintiff’s belief of discrimination arose from his speculation that the words “dirty” and “smoker” were attributed to the guest’s race. Speculation is not evidence. Therefore, the Court finds that Plaintiff has failed to submit evidence showing he was terminated for opposing any practices forbidden under FEHA.

Defendants’ request for summary adjudication of the fourth cause of action for “FEHA retaliation” is GRANTED.

E. FEHA Failure to Prevent Harassment, Discrimination, or Retaliation (5^th Cause of Action)

It is an unlawful employment practice under FEHA, “[f]or an employer … to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring.” (Gov. Code, § 12940, subd. (k).) “[R]etaliation under [FEHA] [Government Code] section 12940, subdivision (h) is a form of discrimination actionable under section 12940, subdivision (k).” (Department of Fair Employment & Housing v. M&N Financing Corp. (2021) 69 Cal.App.5th 434, 445.) “Thus, an employer who has retaliated against an employee has necessarily discriminated against that employee and has failed to prevent discrimination, within the meaning of section 12940, subdivision (k).” (Ibid.)

“‘[C]ourts have required a finding of actual discrimination or harassment under FEHA before a plaintiff may prevail under section 12940, subdivision (k).’ [Citation.]” (Dickson v. Burke Williams, Inc. (2015) 234 Cal.App.4th 1307, 1314.)

Here, the Court has found that (1) Defendants met their initial burden of proving that Plaintiff’s FEHA discrimination, harassment, and retaliation claims lack merit, and (2) Plaintiff failed to meet his burden to show triable issues of material fact exist as those claims. Consequently, Plaintiff cannot prevail on his failure to prevent claim.

Defendants’ request for summary adjudication of the fifth cause of action for failure to prevent is GRANTED.

F. Wrongful Discharge in Violation of Public Policy (6^th Cause of Action)

“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.” (Yauv. Allen (2014) 229 Cal.App.4th 144, 154.)

In light of the Court’s ruling above, finding that triable issues of material fact exist regarding whether Plaintiff was terminated because the Defendants believed he would file a labor violation complaint, the Court finds that triable issues of material fact also exist regarding whether Plaintiff was wrongfully discharged in violation of public policy.

Summary adjudication of the sixth cause of action for wrongful termination in violation of public policy is DENIED.

Based on the foregoing, the Motion for Summary Adjudication is GRANTED IN PART and DENIED IN PART as follows.

The request for summary adjudication of the second cause of action for FEHA discrimination, the third cause of action for FEHA harassment, the fourth cause of action for FEHA retaliation, and the fifth cause of action for failure to prevent under FEHA is GRANTED.

The request for summary adjudication of the first cause of action for violation of Labor Code section 1102.5 retaliation, and the sixth cause of action for wrongful termination in violation of public policy is DENIED.

[1] Defendants have filed evidentiary objections to Plaintiff’s copy of the deposition transcript, arguing that the transcript violates Code of Civil Procedure section 2025.330 because there is no evidence that Plaintiff, the deponent, was sworn by a court reporter. (Defendants’ Evidentiary Objections, No. 57.) However, Plaintiff has testified that the transcript is the true and correct copy. (PCOE, p. 2:20-21.) In addition, Defendants have submitted a copy of the deposition transcript containing the same pages that Plaintiff has submitted. (Cf. DCOE, Exhibit A – a copy of Defendants’ version of the transcript from Plaintiff’s deposition, pp. 44-45.) That is sufficient. (Cf. Ambriz v. Kelegian (2007) 146 Cal.App.4th 1519, 705-706 [“Respondents presented excerpts from the same deposition in support of their motion for summary judgment. (Cf. Evid. Code, § 1414 [‘A writing may be authenticated by evidence that: [¶] (a) The party against whom it is offered has at any time admitted its authenticity; or [¶] (b) The writing has been acted upon as authentic by the party against whom it is offered’].) Respondents admitted the authenticity of the transcript of Detective Pitcher’s deposition by seeking to use portions of that deposition in support of their motion for summary judgment. Raising an objection as to lack of authentication of an excerpt from the same deposition defendants themselves relied upon in their motion is disingenuous, unless defendants can establish that the excerpt Ambriz offered was not part of the deposition transcript. Respondents made no such allegation. [Footnote omitted.] Further, Ambriz’s attorney attested, under penalty of perjury, that the copies of the documents lodged constituted ‘true and correct copies of what they purport to be.’ This was sufficient to overcome respondents’ generic objections to this evidence”].)