Judge: Kevin C. Brazile, Case: 19STCV40405, Date: 2023-05-02 Tentative Ruling

Hearing Date: May 2, 2023

Case Name: Perez v. Ideal Face & Body, et al.

Case No.: 19STCV33793

Matter: Motion for Summary Judgment/Adjudication

Moving Party: Defendant Ideal Face & Body

Responding Party: Plaintiff Cindy Perez

Notice: OK

Ruling: The Motion for Summary Adjudication is granted as to the eighth 

cause of action, but is otherwise denied.

Moving party to give notice.

If counsel do not submit on the tentative, they are strongly 

encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic. 

On October 15, 2021, Plaintiff Cindy Perez filed the operative Second Amended Complaint (“SAC”) against Defendant Ideal Face & Body for (1) FEHA disability discrimination, (2) FEHA retaliation, (3) FEHA failure to accommodate, (4) FEHA failure to engage in the interactive process, (5) wrongful termination, (6) FEHA sex and pregnancy discrimination, (7) violation of pregnancy disability laws, (8) violation of the CFRA, and (9) FEHA failure to prevent discrimination and retaliation.  

Defendant Ideal Face & Body seeks summary judgment or, alternatively, summary adjudication of all causes of action. 

The law of summary judgment provides courts “a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.”  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.)  In reviewing a motion for summary judgment or adjudication, courts employ 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.)  The moving party bears the initial burden of production to make a prima facie showing of the nonexistence of any triable issue, in which case the burden shifts to the opposing party to make a prima facie showing of the existence of a triable issue.  (Code Civ. Proc. § 437c(p)(2).)  To show a triable issue of material fact exists, the opposing party may not rely on the mere allegations or denials of the pleadings, but instead must set forth the specific facts showing that a triable issue exists as to that cause of action or a defense thereto.  (Aguilar, at p. 849.)  Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.”  (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)

1. Disability Discrimination 

Defendant first argues that Plaintiff’s disability discrimination claim fails because there was no adverse action.  

To analyze claims of discrimination under the FEHA based on a theory of disparate treatment, courts employ a three-step, burden-shifting test.  (Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 354-355 (“Guz”).)  Because evidence of intentional discrimination is rare, the law permits the inference of discrimination based on facts that create “a reasonable likelihood of bias and are not satisfactorily explained.”  (Id. at p. 354.)  The tiered approach assists the Court in identifying such facts.  The approach proceeds as follows:  Once the plaintiff establishes a prima facie case of discrimination, a presumption of discrimination arises.  The burden then shifts to the employer to dispel the presumption by producing admissible evidence that its action was taken for a legitimate, nondiscriminatory reason.  Finally, the burden shifts back to the plaintiff, who then has the opportunity to attack the employer’s proffered reason as pretext for discrimination, or to offer other evidence of discriminatory motive.  (Id. at pp. 355-356.)

Under the FEHA, a prima facie case of discrimination generally consists of the following elements: (1) the plaintiff is a member of a protected class, (2) the plaintiff was qualified for the position he or she sought or was performing competently in the position he or she held, (3) the plaintiff suffered an adverse employment action, and (4) some other circumstance suggesting discriminatory motive.  (Guz, supra, 24 Cal.4th at p. 355.)

With respect to motions for summary judgment, “ ‘the employer, as the moving party, has the initial burden to present admissible evidence showing either that one or more elements of plaintiff's prima facie case is lacking or that the adverse employment action was based upon legitimate, nondiscriminatory factors.’ ”  (Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 861.)  “If the employer meets its initial burden, the burden shifts to the employee to ‘demonstrate a triable issue by producing substantial evidence that the employer's stated reasons were untrue or pretextual, or that the employer acted with a discriminatory animus, such that a reasonable trier of fact could conclude that the employer engaged in intentional discrimination or other unlawful action.’ ”  (Ibid.)

Here, there is evidence of an adverse employment action to the extent Plaintiff was told that she lost her job, although she could attempt to return at another time.  

Defendant argues, “To the extent Plaintiff perceives the August 2019 letter as a termination, she was on unpaid leave at the time, her insurance benefits terminated per the California Pregnancy Disability Law and therefore no adverse employment action was taken.”

Defendant cites no law in support of this position.  The position is untenable because it would mean unpaid leave has no benefit over termination.  

Defendant next argues that “Plaintiff did not provide the nature of her condition or the specific disability preventing her from going back to work. Defendant was not aware of Plaintiff’s disability, or her specific medical condition. As such, her alleged disability could not have been the motivating reason for any alleged adverse employment action.”

This is a factual issue and goes to the weight of the evidence as Plaintiff sent Defendant a portion of her EDD form during communications.

Defendant further argues that “[t]o the extent Plaintiff perceived to be terminated by the August 2019 letter, Plaintiff did not have a qualifying disability by that time per her own medical records. She was able to drive, sit and care for her babies. There is no medical opinion that demonstrates what she was limited from doing any major life activities and in fact she acted fully within her abilities. She chose not to seek medical treatment for herself. While Defendant is sympathetic to Plaintiff’s desire to be with her children, such need was not a result of her disability.”

This is also a factual issue because Plaintiff points to her testimony of gallbladder surgery in July 2019 and suffering considerable pain thereafter due to a part of the incision going through her c-section scar.  There is conflicting testimony on the last point (see, e.g., Plaintiff’s depo. at p. 273), which is sufficient to submit the issue to the jury at this juncture.   

Next, Defendant argues that it had a legitimate reason for Plaintiff’s termination or whatever Defendant contends happened to Plaintiff: “Ms. Ignelzi, who temporarily took over that position gave Dr. Yovinos notice that if she was not given the position, she would [] go back to work [for] her prior employer. During that same time, Defendant had a million dollar build out which ran into complex legal issues. Ideal Face & Body lost three employees in June and July 2019, leaving the practice with not enough coverage for business needs. Around that same time, Dr. Justin Yovino had just lost his father and their son was diagnosed with autism. The office was in grave financial drain due to the failed build-out and Dr. Yovinos were stretched extremely thin needing to deal with the legal issues on the build out, trying to maintain the current practice and dealing with unfortunate life events. When bringing back the business to its original location, they had to immediately fill empty appointment slots. They had no choice but to restructure the business and gave Ms. Ignelzi the merged position which included Plaintiff’s job function. Otherwise, the entire business may not survive. As a result, a letter was sent to Plaintiff informing her that her position was no longer going to be held open, but she is welcome to come back when she is ready, and they will try to find her another position.”

Plaintiff argues that Defendant failed to provide any documentary support for the notion that Defendant had significant financial strain, but this is not actually necessary.  That would go to the weight of the evidence. 

On the other hand, there is evidence of pretext.  It is not clear that a temporary employee could not take over Plaintiff’s functions.  This happened in the past with another employee, Alyssa Macy.  Notably, she states, “Dr. Sarah instructed me to perform Ms. Perez’s duties during her maternity leave, adding that if I worked really well as a Patient Care Coordinator, then Mr. Perez’s position will be mine. I acknowledged that it was not legal to terminate Ms. Perez for taking maternity leave. Dr. Sarah responded that she had to confirm with an attorney and check the employee handbook on how to handle this situation. Dr. Sarah stated several times that she did not believe Ms. Perez will be returning to work after giving birth. At the end of the meeting, Dr. Sarah asked me to keep this conversation a secret.”  Macy also states that “Dr. Sarah also instructed me to limit the amount of time an employee can take as sick leave, medical leave, and maternity leave.”  She further states that “Dr. Sarah shared with me that Ms. Perez’s pay would be reduced if she had a doctor’s visit or arrived to work late. To my knowledge, Ms. Perez was late to work only on one occasion, and by approximately three minutes. I explained to Dr. Sarah that it is illegal to require a salaried employee to work as an hourly employee . . . .”

Defendant contends this is hearsay, but not all of the statements are being used to prove the truth of the matter asserted and, in any case, the statements could be considered agent admissions.  (Evid. Code § 1220; Greenspan v. LADT, LLC (2010)  191 Cal.App.4th 486, 524.)

The Motion is denied as to Plaintiff’s disability discrimination claim.

2. Retaliation

Courts employ the same burden-shifting approach to analyze claims of retaliation under the FEHA.  (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042 (Yanowitz).)  Thus, the plaintiff has the initial burden to establish a prima facie case by showing (1) he or she engaged in protected activity, (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer’s action.  (Ibid.)  Once the employee establishes the prima facie case, the burden shifts to the employer, who must present a legitimate, nonretaliatory reason for the adverse employment action.  (Ibid.)  If the employer carries this burden, the court no longer presumes retaliation, and the burden shifts back to the employee to prove intentional retaliation.  (Ibid.)

Defendant merely argues that “Plaintiff was not subjected to any adverse employment action as Defendant did not terminate Plaintiff and welcomed Plaintiff back to work whenever she was ready. Plaintiff chose not to return. Furthermore, any perceived adverse employment action was not motivated by protected grounds since the decision to restructure their business was out of legitimate business need in time of difficulty for a small business. Plaintiff cannot establish such decision was pretextual.”  This was already rejected.

3. Failure to Accommodate & to Engage in Interactive Process

The elements of a reasonable accommodation cause of action are (1) the employee suffered a disability, (2) the employee could perform the essential functions of the job with reasonable accommodation, and (3) the employer failed to reasonably accommodate the employee's disability.  (Nealy v. City of Santa Monica (2015) 234 Cal.App.4th 359, 373.)  

“The ‘interactive process' required by the FEHA is an informal process with the employee or the employee's representative, to attempt to identify a reasonable accommodation that will enable the employee to perform the job effectively. [Citation.] Ritualized discussions are not necessarily required.”  (Scotch v. Art Inst. of California (2009) 173 Cal. App. 4th 986, 1013.)

As discussed, there are triable issues to the extent Plaintiff sent a screenshot of her EDD form and Plaintiff was not given additional unpaid leave time.  

4. Sex and Pregnancy Discrimination

Defendant argues that “Plaintiff cannot demonstrate discriminatory motive. Dr. Sarah Yovino is a mother herself, who has been supportive of Plaintiff’s pregnancy. Dr. Yovino loaned the money for Plaintiff’s pregnancy procedure, gave Plaintiff time off for the pregnancy procedure, helped monitor Plaintiff’s health and allowed her as much rest time as needed after her pregnancy, granted Plaintiff’s pregnancy leave with no questions asked, gave Plaintiff gifts for the baby, and visited Plaintiff in the hospital after delivery.”

However, as discussed, there is the testimony of Macy to the effect that Yovino was looking to replace Plaintiff as soon as she found out that Plaintiff was pregnant. 

5. Pregnancy Disability Leave Law

Defendant argues that “it is undisputed that Plaintiff went on her disability leave on March 28, 2019, and Defendant held her position open for more than four months. Nearing the end of her four-month Pregnancy Disability Leave, Defendant sent Plaintiff an email asking her if she would be returning to work and any accommodations she would need. In response, Plaintiff sent a short message and attached a screenshot of a portion of an EDD form showing a September 5, 2019 return date. Given the business hardship, Ideal Face & Body sent Plaintiff a letter giving her unlimited time off and to return when she is ready. Plaintiff cannot demonstrate how Defendant violated the Pregnancy Disability Leave law.”

Plaintiff argues that “[a]lthough Defendant reinstated Plaintiff’s insurance, it is undisputed that on March 28, 2019, Plaintiff was informed by Dr. Yovino that she needed to enroll in COBRA because Defendant terminated Plaintiff’s health insurance from Ideal Face and Body. Dr. Yovino further told Plaintiff to call the COBRA number to figure out the issue. Thus, Defendant unlawfully refused to maintain insurance coverage for Plaintiff, in violation of the PDLL . . . .” 

Gov. Code § 12945(a)(2)(A) states that it is unlawful “[f]or an employer to refuse to maintain and pay for coverage for an eligible employee who takes leave pursuant to paragraph (1) under a group health plan, as defined in Section 5000(b)(1) of the Internal Revenue Code of 1986, for the duration of the leave, not to exceed four months over the course of a 12-month period . . . .”

Here, there is some evidence that Plaintiff’s insurance was terminated briefly, although it was quickly reinstated.  The damages are still an open question because the documents do not make clear exactly how long Plaintiff failed to receive coverage.  Defendant insists that there is testimony in which Plaintiff admits there was no lapse, but this is not totally accurate.  Here are the relevant portions: “Q. And so effectively you did not miss any days of insurance; correct?  A. Thankfully I had the opportunity to speak to you to get it corrected.”  “Q. Was there a lapse in insurance coverage for your infants, or were they covered beginning September 1st by your wife's insurance? A. They were covered.”

There is evidence that Plaintiff’s kids were covered, but that is different from Plaintiff herself being covered or Defendant providing the insurance itself.   The Motion is denied as to the PDLL claim.  

6. CFRA

Defendant argues that “[u]ntil December 31, 2020, California Family Rights Act applied only to private employers of 50 or more employees. Said eligibility only expanded to employers of 5 or more in year 2021. (See California Senate Bill No. 1383.) At all times relevant, Defendant was a small business with limited number of employees. Defendant employed no more than eight employees at any given time between 2017-2019, well below what was required for employer to be covered by CFRA during the relevant years. As such, Plaintiff’s Violation of the California Family Rights Act fails as a matter of law.”

Plaintiff fails to address this argument, such that it is conceded.  (See DuPont Merck Pharmaceutical Co. v. Superior Court (2000) 78 Cal.App.4th 562, 566.)

The Motion is granted as to Plaintiff’s CFRA claim.

7. Failure to Prevent Discrimination and Retaliation

The Motion is denied as to the failure to prevent claim because Plaintiff’s claims for discrimination and retaliation have survived.  

8. Summary

The Motion for Summary Adjudication is granted as to the eighth cause of action, but is otherwise denied.  The objections are overruled.

Moving party to give notice.

If counsel do not submit on the tentative, they are strongly encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic.