Judge: Loren G. Freestone, Case: 37-2021-00049926-CU-OE-CTL, Date: 2023-10-20 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - September 20, 2023

09/21/2023  10:30:00 AM  C-64 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Loren G. Freestone

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Civil - Unlimited  Other employment Summary Judgment / Summary Adjudication (Civil) 37-2021-00049926-CU-OE-CTL FONSECA VS RIVULIS IRRIGATION INC [IMAGED] CAUSAL DOCUMENT/DATE FILED:

TENTATIVE RULING Defendant Rivulis Irrigation Inc.'s motion for summary judgment, or in the alternative summary adjudication, is DENIED.

Rivulis' evidentiary objections are overruled.

Harassment Rivulis asserts that the 'First Cause of Action should be summarily adjudicated because Plaintiff's experience with Casar Bermudez, although unpleasant, did not rise to the level of severe or pervasive harassment.' 'All harassment claims require severe or pervasive conduct.' (Caldera v. Department of Corrections & Rehabilitation (2018) 25 Cal.App.5th 31, 38, emphasis in original.) Whether conduct fits either of those definitions 'is ordinarily one of fact.' (Ibid.; see, e.g., Lewis v. City of Benicia (2014) 224 Cal.App.4th 1519, 1527–1530 [triable issue where supervisor, who was romantically interested in the plaintiff, bought the plaintiff numerous gifts and lunches, made some risqué jokes, invited the plaintiff home, asked the plaintiff for a kiss, and showed the plaintiff a sexual picture and video on his computer at work].) The Legislature recently declared its intent with regard to application of the laws about harassment: 'Harassment creates a hostile, offensive, oppressive, or intimidating work environment and deprives victims of their statutory right to work in a place free of discrimination when the harassing conduct sufficiently offends, humiliates, distresses, or intrudes upon its victim, so as to disrupt the victim's emotional tranquility in the workplace, affect the victim's ability to perform the job as usual, or otherwise interfere with and undermine the victim's personal sense of well-being.' (Gov. Code, § 12923, subd.

(a).) 'A single incident of harassing conduct is sufficient to create a triable issue regarding the existence of a hostile work environment if the harassing conduct has unreasonably interfered with the plaintiff's work performance or created an intimidating, hostile, or offensive working environment.' (Id. at subd.

(b).) 'The existence of a hostile work environment depends upon the totality of the circumstances.' (Id.

at subd. (c).) 'Harassment cases are rarely appropriate for disposition on summary judgment.' (Id. at subd. (e).) Rivulis characterizes the alleged harassment as 'isolated instances of flirting.' It also argues that there was no harassment because Fonseca's interactions with Bermudez, her once supervisor, were Calendar No.: Event ID:  TENTATIVE RULINGS

2962428  39 CASE NUMBER: CASE TITLE:  FONSECA VS RIVULIS IRRIGATION INC [IMAGED]  37-2021-00049926-CU-OE-CTL consensual. Rivulis relies on the following evidence to meet its initial burden: (1) Fonseca responded to Bermudez's text messages without expressing outright disgust; (2) two selfies of Fonseca, both provided to Rivulis by Bermudez; (3) A text from Bermudez's asking Fonseca to 'send me one that's more provocative,' which it interprets as proof that she had sent him pictures in the past; and (4) the letter closing the investigation, which states that other employees also reported that Fonseca had sent them pictures in her bra and lingerie.

When viewed as a whole, there are triable issues as to whether the alleged harassment was mere flirting. Fonseca testified about how Bermudez said he wanted to get drinks with her in Mexico, date her, and asked to stay with her. There is testimony that Bermudez would call Fonseca into his office to talk about personal matters. Bermudez would also use certain emojis, such a wink eye and a heart blown kiss. Other aspects of Bermudez's alleged conduct is more egregious. Fonseca testified that Bermudez would make comments about her 'voluptuous' 'Honduran' body shape, and how she is 'a lot curvier' and 'his wife didn't have breasts like me.' Fonseca also testified about how Bermudez would touch her shoulders and grab her waist. Bermudez sent text messages to Fonseca asking her for provocative pictures, including a picture in a bikini and a picture in her bra. On one occasion, Bermudez forced Fonseca to stay at work even though she was sick because she would not agree to send him revealing pictures. In Rivulis' own eyes, Bermudez's conduct was 'inappropriate.' Rivulis also deemed it appropriate to consult with legal counsel to determine whether his conduct constituted 'unlawful sexual harassment.' There are also triable issues as to whether the alleged harassment was unwelcomed. Fonseca testified that she did not want to come to work because of the harassment. She testified that she was bothered by the fact Bermudez was eyeing her body at work. When Bermudez would touch Fonseca's shoulders, her head would jerk. Fonseca also testified that she never sent photos of herself to Bermudez or any other employee, and that Bermudez obtained the selfies of her by stalking her Facebook before she blocked him. Fonseca testified that she denied Bermudez's advances. The text messages themselves also indicate that Bermudez's conduct was unwelcome. When Bermudez asked for a 'more provocative' photo, Fonseca said 'No' and told him to 'go to church.' When Bermudez asked to see Fonseca's tattoos, Fonseca said 'No.' When Bermuduez asked Fonseca for a picture of her with her bra on, Fonseca said 'No.' Fonseca testified that she feared Bermudez would retaliate against her (and testified that he did, in fact, retaliate). A jury could reasonably conclude that this conduct was unwanted, and that Bermudez's repeated requests for inappropriate pictures was unwelcome, particularly given he was her supervisor.

Viewing the totality of the circumstances, a jury could reasonably conclude that conduct was sufficiently severe/pervasive as to constitute actionable harassment. The motion for summary adjudication of the first cause of action is therefore denied.

Retaliation/Wrongful Termination Rivulis asserts that the 'Second, Fourth and Fifth Causes of Action should be summarily adjudicated because Plaintiff was terminated for a legitimate reason: she failed to give advance notice of her tardiness on March 29, 2021 despite the ability to do so and after being warned about prior tardiness problems.' '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 [or nonretaliatory] factors. If the employer satisfies its initial burden, it will be entitled to summary adjudication unless the plaintiff produces admissible evidence which raises a triable issue of fact material to the defendant's showing.' (Zamora v. Security Industry Specialists, Inc. (2021) 71 Cal.App.5th 1, 32.) 'Whether summary adjudication is appropriate will depend on a number of factors, including the strength of the plaintiff's prima facie case, the strength of the employer's showing of innocent reasons, any Calendar No.: Event ID:  TENTATIVE RULINGS

2962428  39 CASE NUMBER: CASE TITLE:  FONSECA VS RIVULIS IRRIGATION INC [IMAGED]  37-2021-00049926-CU-OE-CTL countervailing circumstantial evidence of [retaliatory] motive, the probative value of the proof that the employer's explanation is false, and any other evidence that supports the employer's case.' (Zamora, supra, 71 Cal.App.5th. at pp. 54–55.) 'However, many employment cases present issues of intent and motive, issues not determinable on paper. Such cases are rarely appropriate for disposition on summary judgment, however liberalized summary judgment standards may be.' (Id. at p. 33.) Rivulis relies on the following evidence to meet its initial burden that Fonseca was terminated for legitimate reasons: (1) on March 24, 2021, Fonseca was verbally counseled by her then-supervisor (Juan Zazueta) about her tardiness and given a final written warning; (2) Fonseca was scheduled to work Monday March 29, 2021 morning starting at 6:00am, but in the evening on Sunday, March 28, 2021, she was ordered to report to Camp Pendleton the following morning for a COVID vaccination; (3) Fonseca did not call Supervisor Zazueta to inform him about the order until after her shift started; and (4) as a result, Zazueta and the Rivulis' HR Director (Miryam Rosetti) decided to terminate Fonseca.

Chronic absenteeism can be a legitimate, nonretaliatory reason for terminating an employee. However, there is sufficient evidence raising a triable issue as to whether absenteeism was, in fact, the reason for Fonseca's termination, and whether the true reason was unlawful retaliation.

First, the timing of the termination follows Fonseca's complaint of harassment by Bermudez. Fonseca complained about Bermudez's alleged harassment on January 18, 2021. Fonseca's final warning indicates that the first time Rivulis ever accused her of being tardy was the very next day-January 19, 2021. Rivulis completed its investigation into her complaint on February 10, 2021. Fonseca was then terminated less than two months later on March 29, 2021. The temporal proximity between these events gives rise to an inference of retaliation. (See Glynn v. Superior Court (2019) 42 Cal.App.55th 47, 56 [jury could infer retaliation when employee was terminated two months after complaining about unlawful conduct]; Hawkins v. City of Los Angeles (2019) 40 Cal.App.5th 384, 394 [jury could infer retaliation where employee was terminated two months after conclusion of investigation into his complaints of illegal activity].) Second, there are triable issues regarding the veracity and strength of the stated reason for the termination. The final warning identified a prior 'unplanned absence' for calling in sick too late, and a prior conversation on February 11, 2021 regarding Fonseca's purported attendance issues. Yet, Fonseca testified that she disputed the unplanned absence accusation, that the February 11, 2021 conversation never happened, and that the 'final' warning was the first warning she ever received.

Fonseca also testified that to the extent she was tardy, it was due to her dreading further harassment by Bermudez, who continued to supervise her for a period of time even after she complained. Fonseca also testified that she did, in fact, give Supervisor Zazueta advance notice on March 24, 2021 of her need to attend a medical appointment on base sometime in the following week. She testified that four days later, on a Sunday night, she was ordered to appear on base the following morning for her COVID vaccination. Fonseca testified that she promptly informed Supervisor Zazueta of that fact at 6:05am on Monday morning-a mere five minutes after her shift began. Notably, the final warning stated that Fonseca 'would be held accountable to meet the Attendance policy with no excessive . . . tardiness.' (Emphasis added.) In light of the above, a jury could reasonably disbelieve Rivulis' stated reason for the termination. (See Scheer v. Regents of the University of California (2022) 76 Cal.App.5th 904, 918 [jury 'can take account of manifest weaknesses in the cited reasons in considering whether those reasons constituted the real motive for the employer's actions, or have instead been asserted to mask a more sinister reality']; Soria v. Univision Radio Los Angeles, Inc. (2016) 5 Cal.App.5th 570, 595 [finding evidence of pretext based on 'inconsistences and contradictions in the evidence of tardiness submitted by [the employer]'].) Third, there are triable issues in terms of disparate discipline. Fonseca testified that her coworkers were regularly late, even up to three hours late, and did not receive similar discipline. She also testified that her coworkers had never been given a 'final' warning as their first warning. This alleged differential treatment gives rise to an inference of retaliation. (See Iwekaogwu v. City of Los Angeles (1999) 75 Cal.App.4th 803, 817 [finding 'comparative evidence of pretext; that is, evidence that [plaintiff, who had Calendar No.: Event ID:  TENTATIVE RULINGS

2962428  39 CASE NUMBER: CASE TITLE:  FONSECA VS RIVULIS IRRIGATION INC [IMAGED]  37-2021-00049926-CU-OE-CTL complained about discrimination,] was treated differently from others who were similarly situated'].) Rivulis argues that her complaint about Bermudez could have no connection to her termination because Bermudez was not the one to terminate her. However, HR Director Rosetti was one of two decisionmakers. HR Director Rosetti was also the individual who presented Fonseca with the letter closing Rivulis' investigation into the harassment complaint and, according to Fonseca, falsely pointing the finger back at her and accusing her of voluntarily sending pictures in her bathing suit and lingerie to other employees. Fonseca testified that HR Director Rosetti tried to get her to sign that letter even though that accusation against her was untrue. HR Director Rosetti's involvement with both the harassment complaint and the termination decision forecloses summary adjudication on this ground.

(See Reeves v. Safeway Stores, Inc. (2004) 121 Cal.App.4th 95, 109 ['ignorance of a worker's protected activities or status does not afford a categorical defense unless it extends to all corporate actors who contributed materially to an adverse employment decision'].) In light of the above, there are triable issues as to the reason Fonseca was terminated. The motion for summary adjudication of the second, fourth, and fifth causes of action is therefore denied.

Failure to Prevent Rivulis asserts that the 'Third Cause of Action necessarily fails if the underlying causes of action fail.' A corollary to that statement is that a failure to prevent claim survives if the underlying claims survive.

(See Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 288.) As set forth above, there are triable issues on the harassment and retaliation claims. Accordingly, the motion for summary adjudication of the third cause of action is denied.

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