Judge Kerry Bensinger, Case Number: 23STCV07084, Date: 2025-03-10 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.

Plaintiff Cindy Palma (Palma or Plaintiff) brings this FEHA and wrongful termination action against her former employer MLA Green (MLA or Defendant). According to Palma’s Complaint, Palma worked as an office coordinator for MLA. During her employment, Palma was often disturbed during her lunch breaks and after work hours. In June 2020, Palma had ankle surgery which required modifications to her work schedule to allow Palma to attend post-surgery medical appointments. In July 2021, Palma requested a modified work schedule to attend physical therapy sessions. After making this request for an accommodation, MLA discriminated against Palma by reducing her hours, ignoring her accommodation request, and attacking her work performance. Prior to her accommodation request, Palma never received negative write-ups or disciplinary action. MLA terminated Palma’s employment in October 2021.

On April 3, 2023, Palma commenced this action against MLA. On November 9, 2023, Palma filed the operative First Amended Complaint (FAC) against MLA alleging causes of action for (1) Wrongful Termination in Violation of Public Policy; (2) Disability Discrimination; (3) Failure to Accommodate; (4) Failure to Engage in the Interactive Process; and (5) Failure to Prevent Discrimination, Harassment, and Retaliation. As relevant here, Palma alleged having received a right to sue letter on September 26, 2022 and referred to Exhibit A which was attached to her initial complaint. However, Exhibit A was not attached to any pleading.

On November 22, 2024, MLA filed this motion for summary adjudication of the Second, Third, Fourth, and Fifth Causes of Action (the FEHA claims) in the FAC, arguing Palma failed to exhaust her administrative remedies.

In reviewing a motion for summary judgment, 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.)¿

“[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 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 v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 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.)¿ 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, 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.)¿ “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 [cleaned up].) 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”].)¿¿¿

Defendant submits one (1) objection to paragraph 3 of the Declaration of Jamon Hicks. Paragraph 3 states:

“On September 26, 2022, Plaintiff timely filed a Department of Fair Employment and Housing Claim. A true and correct copy of that claim is attached to Mr. [sic] PALMA’s Compendium of Evidence as Exhibit ‘A.’”

Defendant argues paragraph 3 is objectionable on numerous grounds, including hearsay, lack of personal knowledge, lack of foundation, and improper authentication. These objections are OVERRULED.

Citing D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1 (D’Amico), MLA next argues Plaintiff cannot create an issue of fact by a declaration which contradicts prior discovery responses. In support, Defendant points to Plaintiff’s verified responses to Defendant’s Form Interrogatory No. 208.1 and Request for Production of Documents No. 6 indicating Plaintiff did not file a claim, complaint, or charge with any governmental agency involving any allegations in the FAC and that no documents from a governmental agency such as the Department of Fair Employment and Housing (DFEH)/California Civil Rights Department existed. (See Defendant’s Index of Exhibits, Exs. D and F.)

Contrary to Defendant’s position, the D’Amico rule does not apply in this case. The proper application of the D’Amico rule is aptly summarized by the court in Scalf, supra, 128 Cal.App.4th at p. 1519 as follows: “While the D’Amico rule permits a trial court to disregard declarations by a party which contradict his or her own discovery responses (absent a reasonable explanation for the discrepancy), it does not countenance ignoring other credible evidence that contradicts or explains that party’s answers or otherwise demonstrates there are genuine issues of factual dispute.” (Italics in original.) (See also Ahn v. Kumho Tire U.S.A., Inc. (2014) 223 Cal.App.4th 133, 145 (accord).)

Here, Plaintiff’s counsel submits a declaration to present the right to sue letter issued to Plaintiff by the DFEH. Counsel’s declaration and the right to sue letter present “other credible evidence that contradicts or explains that party’s answers or otherwise demonstrates there are genuine issues of factual dispute.” (Scalf, supra, 128 Cal.App.4th at p. 1519.)[1] For these reasons, Defendant’s D’Amico challenge is OVERRULED.

The sole issue to be decided is whether summary adjudication of Plaintiff’s FEHA claims is warranted for failure to exhaust administrative remedies. The timely filing of an administrative complaint is a prerequisite to bringing a civil action for damages under the FEHA. (Gov. Code, §§ 12960, 12965(b); Pollock v. Tri-Modal Distribution Services, Inc. (2021) 11 Cal.5th 918, 931 [citing Romano v. Rockwell International, Inc. (1996) 14 Cal.4th 479].) Exhaustion “is mandatory; an employee may not proceed in court with a FEHA claim without first obtaining a right-to-sue letter.” (McDonald v. Antelope Valley Community College Dist. (2008) 45 Cal.4th 88, 106.) The “failure to exhaust an administrative remedy is a jurisdictional, not a procedural, defect, and thus that failure to exhaust administrative remedies is a ground for a defense summary judgment.” (Martin v. Lockheed Mis. & Space Co. (1994) 29 Cal.App.4th 1718, 1724.)

Here, MLA points to Plaintiff’s verified responses to MLA’s Form Interrogatory No. 208.1 and Request for Production of Documents No. 6 to establish Plaintiff did not file a claim, complaint, or charge with any governmental agency prior to the commencement of this action. (See Defendant’s Index of Exhibits, Exs. D and F.) MLA meets its initial burden to show there is no triable issue of material fact as to Plaintiff’s FEHA claims.

The burden shifts. In opposition, Plaintiff submits the right-to-sue letter issued to her by the DFEH on September 26, 2022. (Hicks Decl., Ex. A.) As discussed above, the letter is credible evidence and supports Plaintiff’s contention that she complied with the exhaustion requirement prior to the commencement of this action. For the purposes of defeating summary adjudication, Plaintiff meets her burden to show there are genuine issues of fact as to whether she satisfied the exhaustion requirement. Summary adjudication is therefore improper.

Kerry Bensinger

Judge of the Superior Court

[1] The court further notes that D’Amico involved “binding concessions” made in response to requests for admission. By contrast, Plaintiff made her concessions in response to interrogatories and production requests.