Judge: Lee W. Tsao, Case: 21NWCV00542, Date: 2023-04-11 Tentative Ruling

Case Number: 21NWCV00542    Hearing Date: April 11, 2023    Dept: C

TEJADA v. PREMIUM TRANSPORT STAFFING, INC.

CASE NO.:  21NWCV00542

HEARING: 4/11/23 @ 1:30 PM

 

#4

TENTATIVE RULING

 

Defendant Premium Transport Staffing, Inc.’s motion for summary adjudication is GRANTED as to Issues 1-8 and 10-11, and DENIED as to Issue 9.  As triable issues remain, motion for summary judgment is DENIED.

 

Moving Party to give NOTICE.

 

 

Defendant Premium Transport Staffing, Inc. (“PTS”) moves for summary judgment, or in the alternative, summary adjudication, pursuant to CCP § 437c.

 

EVIDENTIARY OBJECTIONS

 

PTS’s objection nos. 1-5 are overruled.

 

COMPLAINT

 

This action is brought by Plaintiff Mario Tejado, against Defendant Premium Transport Staffing, Inc. who employed Plaintiff as a driver. Plaintiff had to care for his brother who experienced a medical emergency.  When he returned on December 22, 2017, Plaintiff found he was no longer on the schedule.  (Complaint, ¶ 15.)  Based thereon, Plaintiff asserts causes of action for:

 

1.    Wrongful Termination

2.    Unfair Business Practices

3.    Breach of Contract

4.    Declaratory Judgment

5.    IIED

6.    Failure to Pay Overtime

7.    Failure to Provide Rest Breaks

8.    Failure to Provide Meal Periods

9.    Lab. Code § 1102.5

10.                Failure to Provide Wages Due

 

STANDARD

 

A defendant moving for summary judgment/adjudication has met his burden of showing a cause of action has no merit if the defendant can show one or more elements of the plaintiff’s cause of action cannot be established.  (CCP § 437c(p)(2).) 

 

Defendant seeks summary adjudication of the following issues:

 

ISSUES 1-8

 

The Complaint alleges that Plaintiff was terminated on December 22, 2017 (Complaint, ¶ 15.)  The Complaint was filed on August 26, 2021.  (Defense Separate Statement (“DSS”) 2.)  Thus, the 1st, 3rd, 6th, 7th, 8th, 9th, and 10th causes of action are time-barred based on the two and three-year statutes of limitations pursuant to CCP § 335.1, 338(a), and 339(1).

 

Plaintiff concedes that the 1st cause of action for Wrongful Termination, 3rd cause of action for Breach of Contract, 6th cause of action for IIED, 7th cause of action for Failure to Provide Meal/Rest Breaks, 8th cause of action for Failure to Provide Meal periods, 9th cause of action for violation of Labor Code § 1102.5, and 10th cause of action for Failure to Pay Wages are time-barred.  (Opposition, 9:13-19.)

 

Accordingly, summary adjudication of Issues 1-8 is GRANTED.

 

ISSUE 10

 

3rd cause of action for Breach of written Contract:

 

PTS submits evidence that no written contract was ever entered into between the parties. (DSS 5.)  In opposition, Plaintiff does not dispute this fact.

 

Accordingly, summary adjudication of Issue 10 is GRANTED.

 

ISSUE 11

 

4th cause of action for Declaratory Relief:

 

PTS submits evidence that the Declaratory Relief cause of action seeks a declaration of rights regarding past wrongs. (DSS 6.)  In opposition, Plaintiff does not dispute this fact.

 

Accordingly, summary adjudication of Issue 11 is GRANTED.

 

ISSUE 9

 

2nd cause of action for Unfair Business Practices:

 

PTS contends that Plaintiff cannot prove the existence of an unfair business practice by PTS of discrimination based on a person's physical or mental disabilities, or based on their relationship to any other person with such disabilities.

 

In employment discrimination cases, California courts apply a three-stage burden-shifting framework established by the United States Supreme Court in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792. (Guz v. Bechtel (2000) 24 Cal.4th 317, 354; Loggins v. Kaiser Permanente Internat. (2007) 151 Cal. App. 4th 1102, 1108-1109.) The McDonnell Douglas test places the initial burden on the employee to establish a prima facie case of discrimination, retaliation, and wrongful termination. (Guz, 24 Cal.4th at 355.) If he does so, the burden then
shifts to the employer to articulate a legitimate, nondiscriminatory, non-retaliatory reason for its action. If the employer can show a legitimate reason, “the discharged employee seeking to avert summary judgment must present specific and substantial responsive evidence that the employer’s evidence was in fact insufficient or that there is a triable issue of fact material to the employer’s motive.” (King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 43.)

 

PTS submits the following evidence:

 

·        PTS does not have a practice of engaging in discrimination against employees with disabilities. (DSS 4.)

·        PTS has set forth its policy against such discrimination in its Employee
Handbook. (Moreno Decl., ¶ 8; Ex. 4.)

·        PTS also complies with the state labor law posting requirements by, among other things, posting notices advising employees of their rights under FEHA, including the right to reasonable accommodation for disabilities and the fact that employers may not discriminate based on any protected basis. (Moreno Decl., ¶ 9.)

·        PTS has never been found, by any court or administrative agency, to have engaged in any form of discrimination, including any discrimination based on a person’s physical or mental disability, or their association with any person with such a disability. (Id.)

·        PTS’s dispatcher allowed Plaintiff to take time off to care for his brother.  (Ex. 4, Tejada Depo., 88:7-90:2.)

·        No person involved in the decision to terminate Plaintiff was ever advised that Plaintiff had taken time off to assist his disabled brother. (Gonzalaz Decl., ¶ 7.)

·        PTS terminated Plaintiff’s employment because of its determination that Plaintiff had a history of poor job performance. (PSS 3; Gonzalez Decl., ¶ 6.)

 

The court finds that PTS has carried its initial burden on summary judgment.

 

In opposition, Plaintiff’s burden is to demonstrate a discriminatory or retaliatory motive, or that PTS’ stated reasons for its action are pretextual. (Guz, 24 Cal.4th at 354.)  Plaintiff failed to provide any evidence of discriminatory or retaliatory motive.

 

Instead, Plaintiff argues that the Labor Code violations in the 7th, 8th, and 10th causes of action, although untimely, may be a basis for the unfair business practices claim.  An “action to recover wages that might be barred if brought pursuant to Labor Code section 1194 still may be pursued as a UCL action seeking restitution pursuant to section 17203 if the failure to pay constitutes a business practice.”  (Cortez v. Purolator Air Filtration Products Co. (2000)
23 Cal. 4th 163, 178–179.)

 

The pleadings limit the issues to be considered on a motion for summary judgment.  (Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1254.)

 

Here, the 2nd cause of action incorporates ¶¶ 1-27.  (Complaint, ¶ 28.)  ¶ 9 alleges that Plaintiff was not given meal or rest breaks.  

 

Plaintiff submits his own declaration, attesting that mandatory meal and rest breaks were not followed while he was an employee with PTS, and therefore, he did not receive compensation due.  (Tejada Decl., ¶¶ 3, 6.)

 

The court finds that triable issues exist regarding whether PTS engaged in an unlawful business practice.  Accordingly, summary adjudication of Issue 9 is DENIED.

 

As triable issues remain, motion for summary judgment is DENIED.