Judge Kerry Bensinger, Case Number: 23STCV05596, Date: 2025-01-06 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.

This is a wrongful termination case. Fredrick Smith (Plaintiff) brings causes of action against his former employer Clearpath Federal Credit Union (Defendant) for (1) Disability Discrimination in Violation of FEHA, (2) Failure to Provide Reasonable Accommodations in Violation of FEHA, (3) Failure to Engage in Good Faith Interactive Process in Violation of FEHA, (4) Failure to Prevent Discrimination, Harassment, and/or Retaliation in Violation of FEHA, (5) Wrongful Termination in Violation of Public Policy, (6) Failure to Timely Pay All Wages, and (7) Unfair Competition. As alleged in the Complaint, Defendant discriminated against Plaintiff because of a disability related to contracting COVID-19 and back pain. Plaintiff requested medical leave which Defendant approved. In April 2021, Defendant informed Plaintiff his leave would not be extended, and he was terminated.

On January 5, 2024, the court relieved Plaintiff’s counsel as attorney of record. Plaintiff is self-represented.

On February 14, 2024, Defendant served Plaintiff with Requests for Admission, Set One. No responses were served.

On August 12, 2024, the court granted Defendant’s Motion to Deem the Requests for Admission Admitted.

On October 11, 2024, Defendant filed this Motion for Summary Judgment or in the Alternative Summary Adjudication.

When reviewing a motion for summary judgment or summary adjudication, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent’s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.”¿ (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.)¿¿A motion for summary judgment must be granted “if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).)

“[T]he initial burden is always on the moving party to make a prima facia showing that there are no triable issues of material fact.”¿ (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519 (Scalf).)¿ A defendant seeking 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 (Aguilar).) 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).)¿ A moving defendant need not conclusively negate an element of plaintiff’s cause of action.¿ (Aguilar, supra, 25 Cal.4th at p. 854.)¿¿

To meet this burden of showing a cause of action cannot be established, a defendant must show not only “that the plaintiff does not possess needed evidence” but also that “the plaintiff cannot reasonably obtain needed evidence.”¿ (Aguilar, supra, 25 Cal.4th at p. 854.)¿ It is insufficient for the defendant to merely point out the absence of evidence.¿ (Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891 (Gaggero).)¿ The defendant “must also produce evidence that the plaintiff cannot reasonably obtain evidence to support his or her claim.”¿ (Ibid.)¿ The supporting evidence can be in the form of affidavits, declarations, admissions, depositions, answers to interrogatories, and matters of which judicial notice may be taken.¿ (Aguilar, supra, 25 Cal.4th at p. 855.)¿¿

“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.” (Code Civ. Proc., § 437c, subd. (p)(2).)¿The plaintiff may not merely rely on 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.”¿(Ibid.)¿ A plaintiff opposing summary judgment defeats the motion by showing one or more triable issues of material fact exist as to the challenged element. (Aguilar, supra, 25 Cal.4th at p. 849.) “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.)¿¿

The court must “liberally construe the evidence in support of the party opposing summary judgment and resolve all doubts concerning the evidence in favor of that party,” including “all inferences reasonably drawn therefrom.”¿ (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037; Aguilar, supra, 25 Cal.4th at pp. 844-45.)¿ “On a summary judgment motion, the court must therefore consider what inferences favoring the opposing party a factfinder could reasonably draw from the evidence.¿ While viewing the evidence in this manner, the court must bear in mind that its primary function is to identify issues rather than to determine issues.¿ [Citation.]¿ Only when the inferences are indisputable may the court decide the issues as a matter of law.¿ If the evidence is in conflict, the factual issues must be resolved by trial.” (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839.)¿ “Put another way, have defendants conclusively negated a necessary element of the [plaintiff’s] case or demonstrated that under no hypothesis is there a material issue of fact that requires the process of trial?”¿ (Jeld-Wen, Inc. v. Superior Court (2005) 131 Cal.App.4th 853, 860, internal citation omitted.)¿Further, “the trial court may not weigh the evidence in the manner of a factfinder to determine whose version is more likely true.¿ [Citation.]¿ Nor may the trial court grant summary judgment based on the court’s evaluation of credibility.¿ [Citation.]” ¿(Id. at p. 840; see also Weiss v. People ex rel.¿Department of Transportation (2020) 9 Cal.5th 840, 864 [“Courts deciding motions for summary judgment or summary adjudication may not weigh the evidence but must instead view it in the light most favorable to the opposing party and draw all reasonable inferences in favor of that party”].)¿¿

A failure to oppose a motion may be deemed a consent to the granting of the motion. (Cal. Rules of Court, rule 8.54(c).)

Defendant moves for summary judgment, or in the alternative, summary adjudication, because Plaintiff cannot raise a material issue of fact as to each cause of action following the deemed admissions by Plaintiff. For the reasons stated herein, Defendant is entitled to summary judgment as a matter of law.

FEHA discrimination claims are subject to the McDonnell Douglas burden-shifting analysis. (Sandell v. Taylor-Listug, Inc. (2010) 188 Cal.App.4th 297 (Sandell).)

In the context of disability discrimination, the plaintiff has the initial burden to establish a prima facie case of discrimination. The plaintiff can meet this burden by presenting evidence that demonstrates, even circumstantially or by inference, that he or she (1) suffered from a disability, or was regarded as suffering from a disability; (2) could perform the essential duties of the job with or without reasonable accommodations, and (3) was subjected to an adverse employment action because of the disability or perceived disability. To establish a prima facie case, a plaintiff must show actions taken by the employer from which one can infer, if such actions remain unexplained, that it is more likely than not that such actions were based on a [prohibited] discriminatory criterion.... The prima facie burden is light; the evidence necessary to sustain the burden is minimal. (Sandell, 188 Cal.App.4th at p. 310 (cleaned up).)

Defendant argues Plaintiff cannot establish a prima facie case of disability discrimination. In support, Defendant submits the following undisputed facts: Plaintiff has no facts to support the allegations contained in the Complaint (Defendant’s Undisputed Material Facts (UMF) 1);

Plaintiff has no documents to support the allegations in the Complaint (UMF 2); Clearpath Federal Credit Union did not discriminate against plaintiff (UMF 3); Clearpath Federal Credit Union did not subject plaintiff to any adverse employment action related to his employment (UMF 4); Plaintiff’s disability was not a substantial motivating factor for any disciplinary action taken against him by Clearpath Federal Credit Union (UMF 5).

Based on the foregoing, Defendant prevails. Plaintiff has not made a prima facie showing. Plaintiff did not file an opposition.

B. Failure to Provide Reasonable Accommodations in Violation of FEHA (2^nd Cause of Action)

“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.

Defendant attacks the second and third element. In support, Defendant submits the following undisputed facts: Plaintiff was unable to perform the essential employment duties at Clearpath Federal Credit Union with reasonable accommodation (UMF 9); Plaintiff was unable to perform the essential employment duties at Clearpath Federal Credit Union without reasonable accommodation (UMF 10).

Based on the foregoing, Defendant meets its initial summary judgment burden. The burden shifts to Plaintiff to show a triable issue of material facts.¿ (See Scalf, supra, 128 Cal.App.4th at p. 1519.)¿ Plaintiff has not filed opposition.

C. Failure to Engage in Good Faith Interactive Process in Violation of FEHA (3^rd Cause of Action)

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 attacks the fifth and sixth elements. In support, Defendant submits undisputed facts: Clearpath Federal Credit Union participated in the interactive process with Plaintiff to determine whether a reasonable accommodation could be made for Plaintiff to perform the essential job requirements (UMF 17); Plaintiff failed to participate in timely, good faith interactive process with Clearpath Federal Credit Union to determine whether a reasonable accommodation could be made for Plaintiff to perform the essential job requirements (UMF 18).

D. Failure to Prevent Discrimination, Harassment, and/or Retaliation in Violation of FEHA (4^th Cause of Action)

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.)¿

Defendant attacks the third element. In support, Defendant submits the following undisputed facts: Clearpath Federal Credit Union took all reasonable steps to prevent harassment based on Plaintiff’s disability (UMF 19); Clearpath Federal Credit Union took all reasonable steps to prevent discrimination based on Plaintiff’s disability (UMF 20); Clearpath Federal Credit Union took all reasonable steps to prevent retaliation based on Plaintiff’s disability (UMF 21).

“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.)

Defendant attacks the third element. In support, Defendant submits the following undisputed fact: Clearpath Federal Credit Union’s termination of Plaintiff’s employment was not in violation of public policy. (UMF 22.)

If an employer discharges an employee, an employee’s wages earned and unpaid are due and payable immediately, or no later than 72 hours thereafter if the employee does not have a written contract for a definite period. (Lab. Code, §§ 201, subd. (a).)

Defendant argues there is no triable issue of material fact. In support, Defendant submits the following undisputed facts: Clearpath Federal Credit Union does not owe Plaintiff unpaid wages (UMF 25); Plaintiff has been compensated by Clearpath Federal Credit Union for all wages owed under the terms of employment (UMF 26).

The Unfair Competition Law (UCL) is codified at Business and Professions Code, section 17200 et seq.¿ Section 17204 of the UCL states that a private person “who has suffered injury in fact and has lost money or property as a result of the unfair competition” may bring a 17200 action.¿ (Bus. & Prof. Code, § 17204.)¿ “To bring a UCL claim, a plaintiff must show either an (1) unlawful, unfair, or fraudulent business act or practice, or (2) unfair, deceptive, untrue or misleading advertising. [Citation.]¿ Because the UCL is written in the disjunctive, it establishes three varieties of unfair competition—acts or practices which are unlawful, or unfair, or fraudulent.”¿ (Adhav v. Midway Rent A Car, Inc. (2019) 37 Cal.App.5th 954, 970, citations and quotations omitted.)¿

Defendant argues there is no triable issue of material fact. In support, Defendant submits the following undisputed facts: Clearpath Federal Credit Union did not engage in any unfair business practice during Plaintiff’s employment (UMF 27); Clearpath Federal Credit Union did not engage in any unlawful business practice during Plaintiff’s employment (UMF 28); Clearpath Federal Credit Union did not engage in any fraudulent business practice during his employment (UMF 29).

Accordingly, Defendant Clearpath Federal Credit Union’s unopposed Motion for Summary Judgment is GRANTED.

Defendant is ordered to file a proposed judgment within ten (10) days of this order.

Kerry Bensinger

Judge of the Superior Court