Judge: Malcolm Mackey, Case: 21STCV08493, Date: 2022-10-24 Tentative Ruling
Case Number: 21STCV08493 Hearing Date: October 24, 2022 Dept: 55
FRANKS
v. PILOT INC. 21STCV08493
Hearing Date: 10/24/22,
Dept. 55
#4:
MOTION FOR SUMMARY
JUDGMENT OR SUMMARY ADJUDICATION IN THE ALTERNATIVE.
MOTION FOR SUMMARY
JUDGMENT OR SUMMARY ADJUDICATION IN THE ALTERNATIVE.
Notice: Okay
Opposition
MP:
Defendant WANG'S
INTERNATIONAL, INCORPORATED.
Defendant
PILOT, INC.
RP:
Plaintiff
Summary
On 3/3/21, Plaintiff JESSICA FRANKS filed a Complaint alleging:
9. PLAINTIFF was hired by
ENTITY DEFENDANTS as an Accounting Manager on
or about August 23, 2019.
10. Approximately five
months into her employment with ENTITY DEFENDANTS, PLAINTIFF was consistently
deprived of her due meal periods, as they were frequently interrupted.
PLAINTIFF complained to ENTITY DEFENDANTS about these problems, but nothing was
done to remedy them.
11. PLAINTIFF is of
European descent and her skin color is white. During her employment with ENTITY
DEFENDANTS, PLAINTIFF witnessed various other employees of her race, color,
national origin, and ancestry being terminated and replaced with Asian
employees.
12. In or around May of
2020, Chief Financial Officer Michael Du informed PLAINTIFF that an employee
was hired in a newly created position, which highly resembled PLAINTIFF’s
position. Mr. Du told PLAINTIFF, “Teach her your job.” The new employee was
Asian. PLAINTIFF was never offered this position.
13. On or about June 17,
2020, PLAINTIFF was terminated by ENTITY DEFENDANTS. PLAINTIFF was told that
her position had been eliminated.
(Complaint, ¶¶ 9 – 13.)
The causes of action are:
1. FAILURE TO PROVIDE
MEAL PERIODS;
2. DISCRIMINATION IN
VIOLATION OF FEHA;
3. FAILURE TO PREVENT
DISCRIMINATION IN VIOLATION OF FEHA;
4. WHISTLEBLOWER
PROTECTION;
5. LABOR RETALIATION;
6. WRONGFUL DISCHARGE IN
VIOLATION OF PUBLIC POLICY;
7. UNFAIR BUSINESS
PRACTICES;
8. INTENTIONAL INFLICTION
OF EMOTIONAL DISTRESS.
MP
Positions
Moving parties request orders granting summary
judgment or adjudication of the claims and punitive damages, against Plaintiff,
on grounds including the following:
·
1st Cause of Action: Plaintiff was provided all legally required
rest and meal periods. Plaintiff does not know how many breaks were denied, and
any claim for damages would be speculative.
Plaintiff attempts in her declaration to change her previous sworn deposition
testimony wherein she acknowledged that she essentially always had at least ½
an hour where Mr. Du was not interrupting her during her lunch breaks. (See
Plaintiff’s Declaration at ¶ 25).
·
2nd Cause of Action: Plaintiff cannot make a prima facie case of
discrimination in that any adverse employment Plaintiff
was subjected to was not based upon her race, sex, color, ancestry, or national
origin. Defendants had a legitimate business reason for eliminating
Plaintiff’s position, and Plaintiff cannot establish that reason was mere
pretext. Employees’ separations were due
to financial circumstances facing the company. There were problems with
Plaintiff's performance that financially hurt the company. Plaintiff’s mother arranged for hiring
Plaintiff without disclosing to the Board.
In Mr. Morgan’s estimation, there was no longer a need for PLAINTIFF in
the role she was performing, at the salary she was being paid, without any
influence or action by Mr. Du.
·
3rd Cause of Action: Plaintiff was not subjected to discrimination
or harassment in order to show failure to prevent discrimination. Plaintiff argues that Mr. Du showed
preference to Asian employees, but fails to present any admissible evidence in
support.
·
4th Cause of Action: Plaintiff did not make any disclosures of
conduct she reasonably perceived to be unlawful, while employed. Any disclosures
of conduct she reasonably perceived to be unlawful were not a motivating factor
in the decision to eliminate Plaintiff's position, and defendants would have
made the same decision, whether or not she made any disclosures.
·
5th Cause of Action: Plaintiff did not engage in any conduct
protected under Labor Code §98.6, and defendants were not motivated by any such
act in terminating employment, since Plaintiff's position was eliminated for
legitimate business reasons, and Plaintiff will be unable to establish that the
reason was mere pretext.
·
6th Cause of Action: Plaintiff's employment was at-will, and the
termination of employment did not constitute a violation of any fundamental
public policy, in that Plaintiff's position was not eliminated because of any
protected acts, or for an unlawful reason. Instead, moving parties had a
legitimate business reason, and Plaintiff will be unable to establish that the
reason was mere pretext.
·
7th Cause of Action: Plaintiff cannot establish that defendants
engaged in any unlawful, fraudulent or unfair action, and any damages would be
speculative and/or duplicative of the first cause of action.
·
8th Cause of Action: Plaintiff cannot establish that defendants
engaged in outrageous conduct with the intention of causing Plaintiff any harm,
if the termination was lawful, and there were no break violations.
·
Punitive damages: Plaintiff cannot establish that, in acting as
alleged in the complaint, moving parties did so with malice or a reckless
disregard for Plaintiff's rights, so as to justify an award of exemplary
damages.
·
Defendant WANG'S INTERNATIONAL,
INCORPORATED has never been Plaintiff's employer. None of its employees, agents, or
representatives have been involved in any alleged unlawful conduct. The fact that Wang International shares an
owner or executive, does not in and of itself create an employment relationship
between it and Plaintiff.
RP Positions
Opposing party advocates denying the motions, for
reasons including the following:
·
Plaintiff was wrongfully terminated by moving
defendants Pilot, Inc. and Wang’s International, Incorporated, after being
discriminated against for being a white female, and retaliated against for
complaining about the discrimination and unlawful interruptions of her meal
breaks.
·
Plaintiff was the last white female
employee left at Pilot after a sweeping six-month campaign of replacing all
white female employees with Asian or male counterparts. Plaintiff was replaced
by an Asian employee doing job duties that Plaintiff did. When Plaintiff first started working at
Pilot, there were at least four other white female employees holding managerial
positions.
·
Mr. Du took the role of a CFO and took
over Jean Frank’s office. Shortly thereafter, Plaintiff observed that he was
giving preferential treatment to Asian and male employees. Plaintiff was terminated on June 17, 2020,
only one week after her formal complaint against Mr. Du.
·
All of the alleged performance issues are
fabricated after her termination, in order to fit defendants’ need to defend
their unlawful actions. Plaintiff often
was praised for her performance, going beyond performance expectations to help
Pilot with its financial struggles.
·
Plaintiff was not hired by her mother.
Plaintiff was interviewed by Mr. Webb, who approved her hiring and also set her
compensation.
·
Pilot’s Board of Directors were aware that
Plaintiff was her mother’s daughter, prior to her hiring, as Ms. Franks had
introduced Plaintiff to the owner, CEO, and one of the company’s equity owners.
·
Du repeatedly and regularly interrupted
Plaintiff’s meal breaks with work-related questions. Those interruptions
occurred one to three times per break and each lasted between 3 to 5 minutes. He
instructed her that in the future, she should take her breaks in her office, in
case he needed her. See Lab. Code, § 512.
Tentative
Ruling
Both motions are denied entirely.
The Court concludes that the evidence referenced in
moving parties’ separate statements suffices to shift the burden, but that
oppositions have been filed raising any triable issues of material fact as to
each Cause of Action and punitive damages, including but not limited to whether
(1) Plaintiff was provided all required uninterrupted, full-length breaks; (2) any
adverse employment action was based upon Plaintiff’s race, sex, color,
ancestry, or national origin; (3) employer justifications of nepotistic hiring,
job performance and financial circumstances, were factually untrue pretext; (4)
there was retaliation after Plaintiff complaining about breaks under the
Labor Code; (5) there is nonspeculative evidence of harm or
damages; (6)
WANG'S INTERNATIONAL, INCORPORATED was Plaintiff’s co-employer (see, e.g., Plaintiff’s decl. in opposition
to WANG’s motion, filed 10/6/22, ¶¶ 6-11 (Plaintiff not hired by mother), 15-24 (discrimination against non-Asians and
females), 25-35 (discriminatory motives after Plaintiff’s complaints about
discrimination and interrupted breaks), 36-39 (employment termination shortly after
protected complaints), 40-47 (veracity of employer justifications disputed)); and separate statements referencing further
evidence in dispute, including facts 141-142
(WANGS and PILOT were integrated corporations), and Plaintiff’s
additional fact 131 (employer handbook
stated both WANGS and PILOT were employer)).
The Court disregards evidence filed with the reply,
due to no opportunity to oppose.
The Court has considered the evidentiary objections in
making its ruling.
Procedure
In analyzing motions for summary judgment, courts must
apply a three-step analysis: (1)
identify the issues framed by the pleadings to be addressed; (2) determine
whether moving party showed facts justifying a judgment in movant's favor; and
(3) determine whether the opposing party demonstrated the existence of a
triable, material issue of fact. Sun
v. City of Oakland (2008) 166 Cal.App.4th 1177, 1182-83; McGarry v. Sax (2008) 158
Cal.App.4th 983, 994; Hinesley v.
Oakshade Town Center (2005) 135 Cal. App. 4th 289, 294. “[I]f all the papers submitted by the parties
show there is no triable issue of material fact and the ‘moving party is
entitled to a judgment as a matter of law’ (Code Civ. Proc., § 437c, subd.
(c)), the court must grant the motion for summary judgment.” Troyk v. Farmers Group, Inc. (2009)
171 Cal.App.4th 1305, 1320. Accord
Myers v. Trendwest Resorts, Inc. (2007) 148 Cal.App.4th 1403,
1409.
Where employers present admissible proof that at least
one prima facie element is lacking, or that the adverse employment action was
based upon nondiscriminatory factors, employers are entitled to summary
judgment, unless plaintiffs present admissible evidence showing a triable issue
of material fact related to the employers’ showing. Arteaga v. Brink's, Inc. (2008) 163
Cal.App.4th 327, 344. “Because proof of
discriminatory intent often depends on inferences rather than on direct
evidence, very little evidence of such intent is necessary to defeat summary
judgment.” Nadaf-Rahrov v. Neiman
Marcus Group, Inc. (2008) 166 Cal.App.4th 952, 991-92. “[M]any employment cases present issues of
intent, and motive, and hostile working environment, issues not determinable on
paper. Such cases … are rarely appropriate for disposition on summary
judgment….” Nazir v. United Airlines,
Inc. (2009) 178 Cal.App.4th 243, 286.
As to summary judgment or adjudication motions, judges
need only rule on evidentiary objections deemed material to the
disposition. CCP §437c(Q).
Courts cannot consider moving parties’ new evidence
filed for the first time after the opposition to a summary judgment or
adjudication motion has been filed, without first considering opposing parties’
due-process rights, or allowing a continuance for a supplemental
opposition. Wall Street Network, Ltd.
v. N. Y. Times Co. (2008) 164 Cal.App.4th 1171, 1183, 1191 n. 11; Weiss v.
Chevron U.S.A., Inc. (1988) 204 Cal. App. 3d 1094, 1098, 1099; Plenger v.
Alza Corp. (1992) 11 Cal.App.4th 349, 362.
“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.” Scalf v.
D. B. Log Homes, Inc. (2005) 128 Cal. App. 4th 1510, 1524-1525. Accord Whitmire v. Ingersoll-Rand Co.
(2010) 184 Cal.App.4th 1078, 1087-88.
Evidence
“[S]tatistical evidence is proper to establish
intentional discrimination if the statistics are introduced with ‘proper
foundation and subject to the general rules of evidence.’ …. In some cases,
statistical analysis does require an expert.”
Everett v. Sup.Ct. (2002) 104 Cal. App. 4th 388, 393.
The element of causation may be based upon inferences
from circumstantial evidence, including employer's knowledge of the employee’s
protected activity, and the time between the protected act and the employment
decision. Morgan v. Regents of Univ.
of Cal. (2000) 88 Cal.App.4th 52, 69-70.
Employment termination only a few months after employees’ protected
activities can circumstantially evidence causation as to retaliation
claims. Flait v. No. Amer. Watch Corp.
(1992) 3 Cal. App. 4th 467, 478.
California courts reject the stray remarks doctrine,
and instead consider such remarks with all the evidence in the record. Reid v. Google, Inc. (2010) 50 Cal.4th
512, 539-45; Sandell v.
Taylor-Listug, Inc. (2010) 188 Cal.App.4th 297, 320.
“[C]ourts have routinely sanctioned use of … ‘me too’
type of evidence” “to show intent or motive, for the purpose of casting doubt
on an employer's stated reason for an adverse employment action.” Johnson v. United Cerebral Palsy/Spastic
Children's Found. of L. A. and Ventura Counties (2009) 173 Cal.App.4th 740, 760. Pantoja v. Anton (2011) 198 Cal.App.4th 87, 110, 115 (court abused discretion in excluding “met
too” proof, because, “evidence was admissible to show intent under Evidence
Code section 1101, subdivision (b), to impeach … credibility as a witness, and
to rebut factual claims made by defense witnesses.”); Johnson v. United Cerebral Palsy/Spastic
Children's Foundation of Los Angeles and Ventura Counties (2009) 173
Cal.App.4th 740, 767 (“ ‘me too’
evidence presented … is … admissible under both relevance and … section 352
standards. The evidence sets out factual scenarios related by former employees
of the defendant that are sufficiently similar to the one presented by the
plaintiff …, and the probative value of the evidence clearly outweighs any prejudice
…. Dissimilarities between the facts … go to the weight …, not …
admissibility.”).
“[S]howing that a significant participant in an
employment decision exhibited discriminatory animus is enough to raise an
inference that the employment decision itself was discriminatory, even absent
evidence that others in the process harbored such animus.” DeJung v. Sup. Ct. (2008) 169
Cal.App.4th 533, 551.
Employees generally are not required to present
detailed, non-speculative wage-and-hour records, but instead the employer has
the burden. In a wage-and-hour case,
plaintiffs only have the burden to show sufficient evidence of the amount and
extent of work performed in support of just and reasonable inferences of an
approximate amount, and then the burden then shifts to employers to either
evidence the precise amount of work performed, or to negate the reasonableness
of the inferences. Aguiar v. Cintas
Corp. No. 2 (2006) 144 Cal.App.4th 121, 135, disapproved on other grounds by Noel v. Thrifty Payless, Inc. (2019) 7
Cal. 5th 955, 986 n. 15; CACI 2703. “California courts have shifted the burden of
proof to employers when inadequate records prevent employees from proving their
claims for unpaid overtime hours.” Amaral
v. Cintas Corporation No. 2 (2008) 163 Cal.App.4th 1157, 1189.
Pretext
“At least three types of evidence can be used to show
pretext: (1) direct evidence of retaliation, such as statements or admissions,
(2) comparative evidence, and (3) statistics.”
Iwekaogwu v. City of Los Angeles (1999) 75 Cal.App.4th 803,
816. In discrimination cases, plaintiffs
may rely upon reasonable inferences and are not required to provide direct
evidence to create a factual dispute. Cucuzza
v. City of Santa Clara (2002) 104 Cal. App. 4th 1031, 1041.
After a plaintiff meets the initial burden, employers
must offer a nonretaliatory reason for the employment action, and then the
burden shifts back to the employee to prove intentional retaliation by showing
that an employer's justification is pretext; such as by showing “weaknesses,
implausibilities, inconsistencies, incoherencies, or contradictions,” beyond a
showing that employer decisions were “wrong, mistaken, or unwise.” McRae v. Dept. of Corrections and Rehab.
(2006) 142 Cal.App.4th 377, 388-89.
“[E]vidence that the employer's claimed reason is
false—such as that it conflicts with other evidence, or appears to have been
contrived after the fact—will tend to suggest that the employer seeks to
conceal the real reason for its actions, and this in turn may support an
inference that the real reason was unlawful.”
Mamou v. Trendwest Resorts, Inc. (2008) 165 Cal. App. 4th 686,
715.
Harassment
“[I]n some cases the hostile message that constitutes
… harassment is conveyed through official employment actions, and therefore
evidence that would otherwise be associated with a discrimination claim can
form the basis of a harassment claim.” Roby
v. McKesson Corp. (2009) 47 Cal.4th 686, 708. “[C]onduct that is not facially sex specific
can be grounds for a hostile environment sexual harassment claim if it is inflicted because of gender,
i.e., if men and women are treated differently and the conduct is motivated by
gender bias.” Pantoja v. Anton (2011) 198 Cal.App.4th 87, 130. “A recent legislative amendment modifies
section 12940, subdivision (j)(4)(C) … to read:… ‘Sexually harassing conduct
need not be motivated by sexual desire.’ ”
Lewis v. City of Benicia
(2014) 224 Cal.App.4th 1519, 1527
(quoting Gov. C. §12940(j)(4)(C)).
At-Will
Employment
Even where there is a contractual or statutory right to terminate employment
at-will, there is no right to terminate for an unlawful reason or in violation
of public policy. Silov v. CHW etc.
(2002) 27 Cal.4th 1097, 1104; Scott
v. Phoenix Schools, Inc. (2009) 175 Cal.App.4th 702, 708.
Labor
Code § 98.6
“Section 98.6 prohibits retaliation, by discharge or
other discrimination, against any employee for exercising rights protected by
the Labor Code.” Crestwood Behav.
Health, Inc. v. Lacy (2021) 70 Cal. App. 5th 560, 576.
Breaks
“[A]n employer's obligation is to relieve its employee
of all duty, with the employee thereafter at liberty to use the meal period for
whatever purpose he or she desires, but the employer need not ensure that no
work is done.” Brinker Restaurant
Corp. v. Sup. Ct. (2012) 53 Cal.4th1004, 1017. “ ‘[I]f the employer knows that meal breaks
are missed, shortened, or unduly delayed because the employer has instructed
the employee to work, or has otherwise impeded the taking of breaks, [the
employer's] duty is contravened, absent a suitable waiver or agreement by the
employee.’ ” Carrington v. Starbucks
Corp. (2018) 30 Cal. App. 5th 504, 520.
Employers have an obligation to authorize and to provide legally
required meal and rest breaks. Benton
v. Telecom Network Specialists, Inc. (2013) 220 Cal. App. 4th 701, 728.
Unfair
Business Practices
Employment-related claims, such as discrimination,
support causes of action for unfair competition. Alch v. Sup. Ct. (2004) 122 Cal. App.
4th 339, 400; Herr v. Nestle U.S.A.,
Inc. (2003) 109 Cal. App. 4th 779, 790.
“[A]n employer's policy or practice that violates the
Labor Code may also be held an ‘unlawful business practice’….” Steinhebel v. Los Angeles Times
Communications (2005) 126 Cal.App.4th 696, 712. "[O]rders for payment of wages
unlawfully withheld from an employee are also a restitutionary remedy
authorized by section 17203." Cortez
v. Purolator Air Filtration Products Co.
(2000) 23 Cal.4th 163, 177 (addressing wages already earned but not
future loss of wages as damages). A
restitutionary remedy for unfair business practices is available as to
individual, non-employer defendants, if they appropriated for themselves
corporate employer funds that would have been used to pay wages. Bradstreet v. Wong (2008) 161
Cal.App.4th 1440, 1460-63, disapproved on
other grounds by ZB, N.A. v.
Sup.Ct. (2019) 8 Cal. 5th 175, 195 n.8.
Intentional
Infliction of Emotional Distress
Employment actions can involve outrageous conduct. Murray v. Oceanside Unif. Sch. Dist.
(2000) 79 Cal.App.4th 1338, 1362-63 (harassment based upon sexual
orientation); Fisher v. San Pedro
Peninsula Hosp. (1989) 214 Cal.App.3d 590, 618 (properly pled sexual
harassment); Robinson v. Hewlett-Packard Corp. (1986) 183 Cal. App. 3d
1108, 1127-30 (race discrimination can be outrageous), disapproved on other grounds in Rojo
v. Kliger (1990) 52 Cal. 3d 65, 81-82;
Rulon-Miller v. I.B.M. Corp.
(1984) 162 Cal.App.3d 241, 255 (employer stated to employee that she could not
see her romantic friend or she would face employment termination), overruled on other grounds by Guz v. Bechtel Nat’l, Inc. (2000)
24 Cal.4th 317, 351; Myers v. Trendwest Resorts, Inc. (2007) 148
Cal.App.4th 1403, 1426-27 (sexual harassment may constitute intentional
infliction of emotional distress).
Punitive
Damages
Punitive damages are available in actions based on
FEHA or violations of public policy. Commodore
Home Systems v. Sup. Ct. (1982) 32 Cal.3d 211, 220; Wilson v. Safeway Stores, Inc. (1997)
52 Cal.App.4th 267, 273; Bihun v.
AT&T Info. Systems (1993) 13 Cal.App.4th 976, 996, overruled on other grounds by Lakin
v. Watkins Associated Ind. (1993) 6 Cal.4th 644, 664; Roberts v. Ford Aerospace &
Communication Corp. (1990) 224 Cal.App.3d 793, 798; Cloud v. Casey (1999) 76 Cal.App.4th
895, 911-12; Weeks v. Baker & McKenzie (1998) 63 Cal.App.4th
1128, 1158-59; Myers v. Trendwest
Resorts, Inc. (2007) 148 Cal.App.4th 1403, 1435 ("A court can award
Civil Code section 3294 punitive damages in an FEHA case.").
Employer-Employee
Relationship
For purposes of determining liability under the Fair
Housing and Employment Act, the borrowed federal, integrated-enterprise test
involves consideration of the, “interrelation of operations, common management,
centralized control of labor relations, and common ownership or financial
control.” Laird v. Capital Cities/Abc
(1998) 68 Cal. App. 4th 727, 737, overruled on other grounds by Reid v. Google, Inc. (2010) 50 Cal.
4th 512, 524. The “integrated enterprise
test” is for determining whether two
corporations were a single, common employer.
Leek v. Cooper (2011) 194
Cal.App.4th 399, 411.
“Courts in FEHA cases have emphasized ‘the control
exercised by the employer over the employee's performance of employment
duties.’… This standard requires ‘a comprehensive and immediate level of
“day-to-day” authority’ over matters such as hiring, firing, direction,
supervision, and discipline of the employee.”
Patterson v. Domino's Pizza, LLC (2014) 60 Cal.4th 474, 499. See
also Vernon v. State of California (2004)
116 Cal.App.4th 114, 127 (in evaluating
a demurrer, stating: “We find none
of the indicia of an employment relationship … in the allegations of the first
amended complaint.”)) [Emphasis
added]; Lab. C. § 3351; Unemp.
Ins. C. §§ 606.5 and 621 (re codified
independent contractor tests).
As to some Labor Code Provisions, including Section
1194 (re paying overtime and minimum wages), the definitions of “employment”
(including an entity or individual that “‘employs or exercises control over the
wages, hours, or working conditions of any person’”), are based upon common
law, and the Industrial Welfare Commission’s wage-orders, but not upon federal
law. Martinez v. Combs (2010) 49 Cal.4th 35, 65-67. See also Reynolds v.
Bement (2005) 36 Cal. 4th 1075, 1085, 1088 (“the IWC since 1947 has defined
‘employer’ to include an individual who ‘exercises control over the wages,
hours, or working conditions of any person.’” (quoting Wage Order No. 9, subd.
2(F)), abrogated on other grounds by Martinez v. Combs (2010) 49
Cal.4th 35, 50.