Judge: Lee W. Tsao, Case: 21NWCV00737, Date: 2023-02-28 Tentative Ruling

Case Number: 21NWCV00737    Hearing Date: February 28, 2023    Dept: C

LOPEZ v. HOLIDAY AL MANAGEMENT SUB LLC

CASE NO.:  21NWCV00737

HEARING:  2/28/23 @ 1:30 PM

 

 

#6

TENTATIVE RULING

 

Defendant Holiday Al Management Sub LLC’s motion for summary adjudication is GRANTED as to Issues 2-3 and 15, and DENIED as to Issues 1, and 4-14.  As triable issues remain, motion for summary judgment is DENIED.

 

Moving Party to give NOTICE.

 

 

Defendant Holiday Al Management Sub LLC (“Holiday”) moves for summary judgment/adjudication pursuant to CCP § 437c. 

 

PLEADING

 

Plaintiff Richard Lopez alleges that he was employed by Defendant Holiday Al Management Sub LLC aka Holiday Retirement from October 2020 through August 9, 2021, as a facility maintenance worker.  (Complaint, ¶ 8.)  In June 2021, Plaintiff took 2 months of medical leave for a serious medical condition that limited Plaintiff’s ability to work.  (Id., ¶ 11.)  Defendant failed to engage in the interactive process and failed to provide reasonable accommodations.  (Id.)  On January 10, 2021, Plaintiff called in sick due to Covid-19, and returned to work on February 1, 2021.  (Id., ¶¶ 14-16.)  Plaintiff developed blood clots as a result of his anemia being worsened by Covid-19.  (Id., ¶ 17.)  Plaintiff underwent surgery to have the blood clots removed and remained in the hospital until May 30, 2021.  (Id.)  He returned to work on May 31, 2021.  (Id., ¶ 18.)  On June 4, 2021, Plaintiff’s physician advised Plaintiff to take a month off work to July 1, 2021.  (Id., ¶ 19.)  On July 1, 2021, Plaintiff’s physician requested that his leave be extended to July 31.  (Id., ¶ 21.)  Only July 8, 2021, and July 26, 2021, Plaintiff was informed that his leave was denied.  (Id., ¶¶ 22-23.) On July 30, 2021, Plaintiff’s physician requested that his leave be extended to August 10.  (Id., ¶ 24.)  Plaintiff’s physician requested that Plaintiff perform light duty, but Defendant informed Plaintiff that they had no light duty for him to perform, and he was terminated.  (Id., ¶ 29-30.)  Based thereon, the Complaint asserts causes of action for:

 

1.    Wrongful Termination in Violation of Public Policies

2.    Medical Leave Retaliation

3.    Retaliation for Requesting and Using Accommodations for Disabilities

4.    Failure to Engage in a timely, Good Faith, Interactive Process

5.    Failure to Reasonably Accommodate Disabilities

6.    Disability Discrimination

7.    Retaliation for Opposing Violations of FEHA

8.    Failure to Prevent and Stop Discrimination and Retaliation

 

EVIDENTIARY OBJECTIONS

 

Defendant’s objections to Lopez declaration are sustained as to Nos. 5, and overruled as to Nos. 1-4, and 6-7; objections to Lyon declaration are overruled as to Nos. 1-17. 

 

STANDARD

 

A defendant moving for summary judgment/adjudication has met its 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).) 

 

In the context of summary judgment an employer may satisfy its initial burden of proving a cause of action has no merit by showing either that one or more elements of the prima facie case “is lacking, or that the adverse employment action was based on legitimate nondiscriminatory factors.”  (Cucuzza v. City of Santa Clara (2002) 104 Cal.App.4th 1031, 1038; see Guz v. Bechtel National, Inc., 24 Cal.4th at pp. 356-357; Sada v. Robert F. Kennedy Medical Center (1997) 56 Cal.App.4th 138, 150.)  “[A]n employer is entitled to summary judgment if, considering the employer’s innocent explanation for its actions, the evidence as a whole is insufficient to permit a rational inference that the employer’s actual motive was discriminatory.”  (Guz, at p. 361; see also Kelly v. Stamps.com Inc. (2005) 135 Cal.App.4th 1088, 1097-1098 - if a defendant employer’s motion for summary judgment “relies in whole or in part on a showing of nondiscriminatory reasons for the [adverse employment action], the employer satisfies its burden as moving party if it presents evidence of such nondiscriminatory reasons that would permit a trier of fact to find, more likely than not, that they were the basis for the [adverse action].  To defeat the motion, the employee then must adduce or point to evidence raising a triable issue, that would permit a trier of fact to find by a preponderance that intentional discrimination occurred”.)  “‘Circumstantial evidence of “‘pretense’ must be ‘specific’ and ‘substantial’ in order to create a triable issue with respect to whether the employer intended to discriminate” on an improper basis.’”  (Batarse v. Service Employees Internat. Union, Local 1000 (2012)  209 Cal.App.4th 820, 834.)

 

If the employer meets this initial burden, to avoid summary judgment the employee must produce “substantial evidence that the employer's stated nondiscriminatory reason for the adverse action was untrue or pretextual, or evidence the employer acted with a discriminatory animus, or a combination of the two, such that a reasonable trier of fact could conclude the employer engaged in intentional discrimination.”  (Hersant v. California Dept. of Social Services (1997) 57 Cal.App.4th 997, 1004–1005.)

 

A plaintiff's “suspicions of improper motives... based primarily on conjecture and speculation” are clearly not sufficient to raise a triable issue of fact to withstand summary judgment.  (Kerr v. Rose (1990) 216 Cal.App.3d 1551, 1564.) Summary judgment for the employer should be granted where, “given the strength of the employer's showing of innocent reasons, any countervailing circumstantial evidence of discriminatory motive, even if it may technically constitute a prima facie case, is too weak to raise a rational inference that discrimination occurred.” (Guz v. Bechtel Nat'l, Inc., supra, 24 Cal.4th at 362.)

 

However, evidence showing facts inconsistent with the employer's claimed reasons tends to prove the employer's discriminatory intent.  E.g., where the employer claims lay-offs were for economic reasons, evidence that only persons over a certain age were laid off raises an inference of age discrimination. (Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th 1718, 1735.) “Pretext” does not require proof that discrimination was the only reason for the employer’s action. It is enough that it was a determinative factor—i.e., that the action would not have been taken “but for” the discriminatory intent. (See Ewing v. Gill Industries, Inc. (1992) 3 Cal.App.4th 601, 612.) An employee may also avoid summary judgment by attacking the credibility of the employer's declarations; i.e., by demonstrating “such weaknesses, implausibility, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence” and hence infer discriminatory intent. (Hersant v. California Dept. of Social Services, supra, 57 Cal.App.4th at 1005.)

 

ISSUES 2-3

 

2nd CAUSE OF ACTION:  MEDICAL LEAVE RETALIATION:

 

Plaintiff does not oppose summary adjudication of the 2nd cause of action.  Accordingly, summary adjudication of Issues 2-3 is GRANTED.

 

ISSUES 10-11

 

6th CAUSE OF ACTION:  DISABILITY DISCRIMINATION:

 

FEHA prohibits an employer from taking any adverse action against a protected individual based on his or her race, religious creed, color, national origin, ancestry, physical or mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, sexual orientation, age (if 40 or over), or pregnancy, childbirth, breastfeeding or related medical conditions of any female employee. (Gov.C. §§ 12926(q)(1), 12940(a)-(b),(k), 12944(a), 12945; see also 2 Cal.C.Regs. § 7287.9 et seq.)

 

To establish a prima facie case of disability discrimination under the FEHA, a plaintiff must show: (1) he was a disabled person within the meaning of the statute, (2) he was qualified, with or without reasonable accommodation, to perform the essential functions of his job, and (3) he suffered an adverse employment action because of his purported disability.  (Brundage v. Hahn (1997) 57 Cal.App.4th 228, 236.)

 

Defendant contends that Plaintiff could not perform the essential functions of his job as a Facilities Technician with or without reasonable accommodation based on the work restrictions identified by his physician on August 8, 2021.  Defendant presents the following evidence, in relevant part:

 

·        On August 8, 2021, Lopez had a visit with his physician during which he received a note indicating that he was placed off work from August 8, 2021 to August 31, 2021, as well as a completed a medical certification form. (Defense Separate Statement (DSS) 28.)

·        The certification form completed by Lopez’s physician states that his condition commenced on May 24, 2021 and had a probable duration of nine months. (DSS 29.)

·        It stated that Lopez was unable to perform the following activities: “replace toilet, lift heavy items, any tasks that involve physical fitness like excessive walking, moving heavy ladders, repetitive/prolonged painting.” (DSS 30.)

·        The form indicates that Lopez was incapacitated for the period May 24, 2021 to August 31, 2021, and indicated that Lopez tentatively needed a reduced work schedule of 4 hours per day, 5 days per week from September 1, 2021 through December 31, 2021. (DSS 31-32.)

·        Woods conferred with Regional Director Jeff Brown to discuss whether the community could accommodate Lopez’s work restrictions. (DSS 36.) Woods and Brown agreed that the limitations were so significant that they would have prevented Lopez from performing the essential
functions of the Facilities Technician job. (DSS 37.)

·        Woods and Brown were concerned that the restrictions indicated that Lopez would not be able to engage in prolonged painting, which is needed when getting apartments ready for new tenants (DSS 38); he would be unable to lift heavy objects including ladders, which is also something that the Facilities Technicians are required to do (DSS 39); Lopez would not be able to replace toilets, which is also a task that is completed by Facilities Technicians at The Palms (DSS 40); and he would be unable to walk throughout the large community property in order to perform daily tasks such as emptying the common trash receptacles and responding to tenant work orders (DSS 41.)  Woods and Brown agreed that Lopez would be unable to perform the essential functions of his job within the limitations provided by his physician. (DSS 42.)

·        Woods and Brown also considered whether there were any other positions at The Palms that Lopez could fill that would allow him to work within the limitations identified by his physician, but were unable to identify any such open positions that he was qualified to perform. (DSS 43.)

·        Given that Lopez had been off work for more than two months and a second Facilities Technician was needed at The Palms who could perform the essential functions of the role in order to meet the needs of the
residents, management made the decision to terminate Lopez’s employment and seek to refill his position. (DSS 44.)

 

The court finds that Defendant has met its initial burden upon summary adjudication that it had legitimate non-discriminatory reasons for its action.

 

The burden shifts to Plaintiff to present “substantial evidence that the employer's stated nondiscriminatory reason for the adverse action was untrue or pretextual, or evidence the employer acted with a discriminatory animus, or a combination of the two, such that a reasonable trier of fact could conclude the employer engaged in intentional discrimination.”  (Hersant v. California Dept. of Social Services (1997) 57 Cal.App.4th 997, 1004–1005.)

 

In opposition, Plaintiff submits the following evidence, in relevant part:

 

·        On an average workday, for the first 1 to 1.5 hours, Lopez would check and empty twelve to thirteen waste receptacles and fill work orders, such as replacing a light bulb or fixing a broken shade.  (Ex. 3, Lopez Depo., 38:13-21, 39:1-3.)

·        After that, Lopez would work on getting rooms rent ready by removing nails in walls, applying touch-up paint or paint the whole apartment, fixing blinds, replacing a shade or faucet; “we just did the simple maintenance”.  (Ex. 3, Lopez Depo., 39:3-10:7; 47:18-49:3; 49:6-13.)

·        Lopez’s other duties included occasionally patching a hole in the drywall, changing the outlets in the bathroom or kitchen, fixing clogs in toilets and sinks, touching up countertops and doors with wood markers, and patching nail holes in communal halls.  (Ex. 3, Lopez Depo., 39:21-24; 40:10-12; 43:16-25; 46:2-5.)

·        During his eight months’ active employment, Lopez removed a toilet four times, removed and installed a kitchen cabinet once, and painted an entire apartment five to seven times.  (Ex. 3, Lopez Depo., 40:16-21; 41:15-24; 48:17-21; 49:6-13.)  Most of the painting done by Lopez was of a limited or touch-up nature.  (Ex. 3, Lopez Depo., 38:10-39:9; 43:15-19; 44:16-45:7; 48:19-49:13; 52:10-17.)

·        When Lopez was required to move some heavy items, he would use “dollies, carts, or hand trucks” and polygons.  (Ex. 3, Lopez Depo., 51:21-24; 157:6-158:6; Disputed DSS 3, 37.)  The only ladder heavy enough to be within Lopez’s medical work restrictions was almost never used.  (Ex. 3, Lopez Depo., 49:16-50:12.)  On the two occasions it was used, it was moved on a cart; not by carrying.  (Ex. 3, Lopez Depo., 49:8-50:12; 51:17-20; 83:22-24; CF 37.)

·        “Every once in a while,” Lopez and the other Facilities Technician, Tom Roundtree would work together.  (Ex. 3, Lopez Depo., 53:10-54:9.)  Lopez and Roundtree had shifts that overlapped for about six hours two days a week.  (Ex. 3, Lopez Depo., 35:6-8; 36:14-25.)

 

The court finds that Plaintiff has submitted sufficient evidence to create a triable issue as to whether Plaintiff could have performed the essential functions of his job with accommodations, and triable issues also exist regarding whether Defendant’s explanation was pretextual.

 

Discriminatory intent may be inferred when adverse employment decisions are taken within a reasonable period of time after the exercise of protected rights. (Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 69 (2000); Rope v. Auto–Chlor System of Washington, Inc. (2013) 220 Cal.App.4th 635, 653; Mariani-Colon v. Department of Homeland Security ex rel. Chertoff (1st Cir 2007) 511 F.3d 216, 224 - two months from protected activity to discharge sufficient for relatively light burden of establishing prima facie case.)

 

Summary adjudication of Issues 10-11 is DENIED.

 

ISSUES 8-9

 

5th CAUSE OF ACTION:  FAILURE TO REASONABLY ACCOMMODATE DISABILITIES:

 

A failure to accommodate claim requires that “(1) the plaintiff has a disability under the FEHA, (2) the plaintiff is qualified to perform the essential functions of the position, and (3) the employer failed to reasonably accommodate the plaintiff's disability.”  (Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1009-1010.)  A leave of absence “may be a reasonable accommodation provided that the leave is likely to be effective in allowing the employee to return to work at the end of the leave.”  (2 CCR § 11068 - “An employer, however, is not required to provide an indefinite leave of absence as a reasonable accommodation”; Hanson v. Lucky Stores, Inc., 74 Cal.App.4th at 226-27.)  “The reasonableness of an accommodation generally is a question of fact.”  (Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 228, fn. 11.)

 

Defendant contends that it provided Plaintiff with the accommodation of a leave of absence for over two months despite the fact that he did not qualify for medical leave under the FMLA or CFRA.  (DSS 16-36.)

 

However, the court finds that triable issues exist regarding whether Defendant accommodated Lopez when he returned to work with restrictions.  Instead of accommodating Plaintiff’s work restrictions upon his return, after reviewing the certification form, Defendant indicated to Plaintiff that his employment would be terminated.  Lopez proposed that he be allowed to temporarily work just three days each week instead of four. Woods replied, “they don’t accommodate” and that if Lopez was not released to perform full duties, she would not hold the position for his return. (Ex. 3, Lopez Depo., 180: 19-21; 181:19-185:16.)  During Lopez’s approved leave, Woods hired temporary workers to fill in for him, while Roundtree did the rest of the required work.  (Ex. 5, Roundtree Depo., 32:3-12.)  Therefore, triable issues exist regarding whether Defendant could have accommodated Plaintiff’s restrictions, but failed to do so.

 

Accordingly, summary adjudication of Issues 8-9 is DENIED.

 

ISSUES 6-7

 

4th CAUSE OF ACTION:  FAILURE TO ENGAGE IN A TIMELY, GOOD FAITH, INTERACTIVE PROCESS


A claim for failure to engage in the interactive process requires a “timely, good faith, interactive process with the employee or applicant to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee or applicant with a known physical or mental disability or known medical condition.”  (Gov. Code § 12940(n).)  “Whether the employer engages in an interactive process is a question of fact.”  (Wilson v. County of Orange (2009) 169 Cal. App. 4th 1185, 1193.)


An employer who permits multiple medical leaves, then unilaterally determines, without consulting the employee or employer’s physician, that further accommodation would be futile and terminates the employee, may be held liable for the final breakdown in the interactive process.  (Nadaf-Rahrov (2008) 166 CA4th 952, 986, 988-990.)

 

The court finds triable issues exist.  Although Woods and Brown may have conferred regarding Lopez’s work restrictions, triable issues exist regarding whether they conferred in good faith with Lopez. The medical certification form was accompanied with a doctor’s note stating “pending cardiologist’s evaluation.”  (Plaintiff’s Ex. 13-14; Disputed DSS 30.)  Defendant was terminated on August 9, 2021, and refused to keep Lopez’s position open until the next day, August 10, 2021, when Lopez would have had his appointment with his cardiologist. (Disputed DSS 36; Defendant’s Ex. J; Ex. 3, Lopez Depo., 84:12-25, 160:1-18, 161:19-162:5.)  When Lopez tried to talk to Woods about his restrictions and how Defendant could accommodate him, Woods did not want to hear it.  (Ex. 3, Lopez Depo, 85:6-9.)  Woods warned that they cannot hold the position unless Lopez comes back “full duty.”  (Ex. 3, Lopez Depo., 82:11-14 85:6-17.)  Lopez tried to talk to Woods about how he could in fact do the tasks they actually did there, but she “didn’t want to hear it.”  (Ex. 3, Lopez Depo., 85:6-9.)  As an alternative, Lopez proposed that he be allowed to temporarily work just three days each week instead of four. Woods replied, “they don’t accommodate” and that if Lopez was not released to perform every duty related to the position, she would not hold the position for his return. (Ex. 3, Lopez Depo., 180: 19-21; 181:19-185:16.) Lopez’s cardiology appointment set for August 10, 2021, had to be rescheduled to September due to a conflicting surgery the cardiologist had to perform.  (Ex. 3, Lopez Depo., 155:10-156:5.)  Lopez instead saw his cardiologist in September, who then cleared him to work without restrictions.  (Id.)

 

The court finds that triable issues exist regarding whether Defendant timely, and in good faith, engaged in the interactive process with Plaintiff.  Summary adjudication of Issues 6-7 is DENIED.

 

ISSUES 4-5 and 12-13

 

3rd CAUSE OF ACTION:  RETALIATION FOR REQUESTING AND USING ACCOMMODATIONS FOR DISABILITIES and 7th CAUSE OF ACTION:  RETALIATION FOR OPPOSING VIOLATIONS OF FEHA

 

 

To establish a prima facie case of retaliation “a plaintiff must show (1) she engaged in a protected activity, (2) her employer subjected her to an adverse employment action, and (3) there is a causal link between the two.” (Mokler v. County of Orange (2007) 157 Cal.App.4th 121, 138.)  The causal link may be established by an inference derived from circumstantial evidence such as the employer's knowledge that the employee engaged in protected activities and the proximity in time between the protected action and allegedly retaliatory employment decision: “Essential to a causal link is evidence that the employer was aware that the plaintiff had engaged in the protected activity.” (Morgan v. Regents of Univ. of Calif. (2000) 88 Cal.App.4th 52, 69–70.)  Proof of retaliatory motive by way of temporal proximity of the adverse action shifts the burden to Defendants to articulate a legitimate reason for the adverse employment action. (Morgan v. Regents of University of Calif. (2000) 88 Cal.App.4th 52, 69.)

 

The court finds that triable issues exist regarding whether Defendant retaliated against Plaintiff based on his request to accommodate his disabilities.  Defendant admitted Lopez’s approved leave was a basis for terminating him.  (DSS 44; Woods decl. ¶ 7.)   Triable issues also exist regarding whether Defendant’s explanation and actions were pretextual.

Accordingly, summary adjudication of Issues 4-5 and 12-13 is DENIED.


ISSUES 1 and 14

 

1st CAUSE OF ACTION:  WRONGFUL TERMINATION IN VIOLATION OF PUBLIC POLICIES and 8TH CAUSE OF ACTION:  FAILURE TO PREVENT AND STOP DISCRIMINATION AND RETALIATION:

 

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… The California Supreme Court described four categories of employee conduct subject to protection under a claim of wrongful discharge in violation of fundamental public policy: (1) refusing to violate a statute; (2) performing a statutory obligation; (3) exercising a statutory right or privilege; and (4) reporting an alleged violation of a statute of public importance. Courts in wrongful discharge actions may not declare public policy without a basis in either constitutional or statutory provisions. (You v. Allen (2014) 229 Cal.App.4th 144, 154.)

For the same reasons discussed in Issues 4-13, above, the court finds that triable issues exist regarding whether Plaintiff was wrongfully terminated in violation of public policies.  Summary adjudication of Issues 1 and 14 is DENIED.

 

ISSUE 15

 

PUNITIVE DAMAGES:

 

To maintain a claim for punitive damages, a plaintiff must proffer clear and convincing evidence of malice, oppression, or fraud by a managing agent.  (CC § 3294(a); Basich v. Allstate Ins. (2001) 87 Cal.App.4th 1112, 1118-21.)  The term “managing agent,” includes “only those corporate employees who exercise substantial independent authority and judgment in their corporate decisionmaking so that their decisions ultimately determine corporate policy.”  (White v. Ultramar, Inc. (1999) 21 Cal.4th 563, 566-567.)  Mere supervisory status, including the authority to hire and fire, is insufficient.  (Id. at 573-574, 577; Kelly-Zurian (1994) 22 Cal.App.4th 397, 421-22; Cruz v. HomeBase (2000) 83 Cal.App.4th 160, 167.)

 

Defendant made an employment decision that resulted in termination.  Although triable issues exist regarding whether the termination was wrongful, Plaintiff failed to submit evidence that the employer’s conduct rises to the level of despicable conduct that “is so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people.”  (Mock v. Mich. Millers Mutual Ins. Co (1992) 4 Cal.App.4th 306, 331.)  

 

Summary adjudication of Issue 15 is GRANTED.