Judge: Mark C. Kim, Case: 21LBCV00171, Date: 2022-08-04 Tentative Ruling
Case Number: 21LBCV00171 Hearing Date: August 4, 2022 Dept: S27
Plaintiff, Ruben Briceno filed this
action against Defendant, Schultz Industrial Services, Inc. for age discrimination,
disability discrimination, and related claims.
Plaintiff alleges he was wrongfully terminated as a result of his age
and heart condition.
a.
Initial Note re: Timeliness
On 5/19/22, Defendant filed this
motion for summary judgment, setting it for hearing on 8/04/22. Defendant served the moving documents by
email the same day. 5/19/22 was 77 days
prior to 8/04/22, and therefore the motion was timely filed. Defendant filed the unredacted Declaration of
Kristen Dudley-McLemore in support of the motion on 5/25/22, which was only 71
days prior to the hearing (the redacted version was filed and served with the moving
papers). The declaration was filed with no
proof of service; Plaintiff, in opposition to the motion, provides evidence
that the declaration was not served until 6/22/22 (see Asobie Declaration, ¶20).
CCP §437c(a) requires all moving
papers (including supporting papers) in support of a summary judgment motion to
be filed and served at least 75 days prior to the hearing. Defendant, in reply, shows that nothing in
the motion relies upon the redacted, as opposed to public, portions of the
declaration. Thus, all papers “in
support of” the motion were timely filed, and the Court will rule on the motion
on its merits.
b. Parties’
Positions
Defendant moves for summary
judgment on Plaintiff’s complaint. It contends
Plaintiff’s employment was terminated as part of a larger reduction in force
after Plaintiff’s project exhausted its funding, and that the decision was not
motivated by age or disability. It therefore
contends it is entitled to summary judgment or, in the alternative, summary
adjudication of each cause of action in Plaintiff's complaint.
Plaintiff opposes the motion. He contends two younger, non-disabled, less
skilled workers were kept when the reduction in force occurred. He contends Defendant hired three younger,
lower-ranked labor apprentices after it terminated Plaintiff. He contends he has asked to be re-hired, and
Defendant has advised that it is scared to re-hire him in light of his
medical/heart condition. He contends his
direct supervisor told him, specifically, that Defendant does not want
Plaintiff as an employee because of his medical condition.
Defendant, in reply, contends Plaintiff
has submitted no admissible evidence in support of his theories, has improperly
expanded his theories, and/or relies on irrelevant evidence to support his
claims.
e. Request for Judicial Notice
Defendant, with its moving papers,
seeks judicial notice of Plaintiff’s complaint, CA HSC §25536.7, Chevron’s
labor agreement, and the Southern California Laborers Master Agreement. The RJN is unopposed and granted.
Defendant filed evidentiary objections
with its reply papers. Because the
ruling is largely dependent on those objections, the Court will rule on each objection. As an initial note, Defendant appears to
misunderstand hearsay. Defendant argues
anything someone else said is hearsay. By
way of example, Defendant’s objection 47 is that Plaintiff asked other supervisors
for work, and one of them told him only Gonzalez could give him work, and the
other told him he had no work for him. These
statements are not being admitted to prove only Gonzalez could re-hire Plaintiff
or that the other supervisor actually had no work for Plaintiff; the statements
are being admitted only to prove that this is what these people said in
response to a request for work. Additionally,
Evidence Code §352 objections are rarely, if ever, appropriate on summary judgment;
the Court’s job on summary judgment is issue-spotting, not credibility determination
and not weighing of evidence.
Objections 43 to Plaintiff’s declaration
is sustained. The remaining objections
to Plaintiff’s declaration are overruled.
Objection 46 is very important to
this ruling, so the Court will discuss it in detail. Defendant objects to Plaintiff’s Declaration,
¶60, wherein Plaintiff states, “After several months of not being called back
to work, I contacted Freddy Gonzalez, on two separate occasions and asked him
for work, in response, he let me know there was no work for me, he barely had
enough work from himself, and Schultz was scared of hiring me back to work, on account
of my heart condition.” Defendant objects,
contending this statement contradicts Plaintiff’s deposition testimony, at
pages 77 and 85, wherein Plaintiff stated, “I heard it from other coworkers
that are not a part of my group. And they
said that Freddy was scared that I could die from – from something, from a
heart attack, and that he didn’t want to have to be responsible for that” and “Freddy
said that they didn’t have any work for me…Freddy even told me, ‘There’s barely
enough work for me. There’s not even
enough work for me. I can’t – we’re
scared.’”
Neither of the deposition
statements contradicts the declaration. While
Plaintiff could have been more specific in his declaration, and while Defendant
is free to argue credibility at trial, there is no actual contradiction. Absent a contradiction, there is no authority
permitting the Court to ignore the declaration statement on summary judgment. The objection is therefore overruled.
Defendant objects to the entire deposition
of Molina on the grounds that Plaintiff did not provide the oath and did not
highlight or otherwise notate the relevant portions of the transcript. These are both curable errors. The Court asks Plaintiff to cure the errors
prior to the hearing on the motion. The Court
will consider the deposition testimony. Objections
57, 58, 59, are sustained; the remaining objections are overruled.
Defendant objects to the entire deposition
of Briceno, again based on oath and highlighting. Plaintiff must cure the errors prior to the hearing. On their merits, the remaining objections are
overruled.
The objections to the Gonzalez
deposition are overruled.
The objections to responses to SROGs
are overruled.
The objections to the declaration
of Asobie are sustained.
Summary judgment is proper “if all
the papers submitted show that there is no triable issue as to any material
fact and that the moving party is entitled to judgment as a matter of law.” (Code Civ. Proc. §437c(c).) Where a defendant seeks summary judgment or
adjudication, he must show that either “one or more elements of the cause of
action, even if not separately pleaded, cannot be established, or that there is
a complete defense to that cause of action.”
(Id. at §437c(o)(2).) A defendant may satisfy this burden by
showing that the claim “cannot be established” because of the lack of evidence
on some essential element of the claim.
(Union Bank v. Superior Court (1995)
31 Cal.App.4th 574, 590.) Once the
defendant meets this burden, the burden shifts to the plaintiff to show that a “triable
issue of one or more material facts exists as to that cause of action or
defense thereto.” (Ibid.)
The moving party bears the initial
burden of production to make a prima facie showing that there are no triable issues
of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A defendant moving for summary judgment must
show either (1) that one or more elements of the cause of action cannot be
established or (2) that there is a complete defense to that cause of
action. (Id. at §437c(p).) A
defendant may discharge this burden by furnishing either (1) affirmative
evidence of the required facts or (2) discovery responses conceding that the
plaintiff lacks evidence to establish an essential element of the plaintiff's
case.
[A] defendant may simply show the
plaintiff cannot establish an essential element of the cause of action “by
showing that the plaintiff does not possess, and cannot reasonably obtain,
needed evidence.” (Id. at p. 854.) Thus, rather than affirmatively disproving or
negating an element (e.g., causation), a defendant moving for summary judgment
has the option of presenting evidence reflecting the plaintiff does not possess
evidence to prove that element. “The defendant may, but need not, present
evidence that conclusively negates an element of the plaintiff's cause of
action. The defendant may also present evidence that the plaintiff does not
possess, and cannot reasonably obtain, needed evidence—as through admissions by
the plaintiff following extensive discovery to the effect that he has
discovered nothing” to support an essential element of his case. (Aguilar, supra, at p. 855.) Under the latter approach, a defendant's initial
evidentiary showing may “consist of the deposition testimony of the plaintiff's
witnesses, the plaintiff's factually devoid discovery responses, or admissions
by the plaintiff in deposition or in response to requests for admission that he
or she has not discovered anything that supports an essential element of the
cause of action.” (Lona v. Citibank, N.A.,
supra, 202 Cal.App.4th at p. 110.) In other words, a defendant may show the
plaintiff does not possess evidence to support an element of the cause of
action by means of presenting the plaintiff's factually devoid discovery
responses from which an absence of evidence may be reasonably inferred. (Scheiding v. Dinwiddie Construction Co.
(1999) 69 Cal.App.4th 64, 83.)
Thus, a moving defendant has two means
by which to shift the burden of proof under the summary judgment statute: “The
defendant may rely upon factually insufficient discovery responses by the
plaintiff to show that the plaintiff cannot establish an essential element of
the cause of action sued upon. [Citation.] [Or a]lternatively, the defendant
may utilize the tried and true technique of negating (‘disproving’) an
essential element of the plaintiff's cause of action.” (Brantly v. Pisaro (1996) 42 Cal.App.4th 1591, 1598.)
Leyva v. Garcia (2018) 231 Cal.Rptr.3d.
814, 819-820.
Until the moving defendant has
discharged its burden of proof, the opposing plaintiff has no burden to come
forward with any evidence. Once the moving defendant has discharged its burden
as to a particular cause of action, however, the plaintiff may defeat the motion
by producing evidence showing that a triable issue of one or more material
facts exists as to that cause of action.
(Id. at §437c(p)(2).) On a motion for summary judgment, the moving
party's supporting documents are strictly construed and those of his opponent
liberally construed, and doubts as to the propriety of summary judgment should
be resolved against granting the motion.
(D’Amico v. Board of Medical
Examiners (1974) 11 Cal.3d 1, 21.)
Special rules govern allocation of
the burden of proof on motions for summary judgment in wrongful termination and
employment discrimination cases, under both federal and state law. Moore v.
Regents of Univ. of Calif. (2016) 248 Cal.App.4th 216, 233. Because direct evidence of discrimination is
seldom available, courts use a system of shifting burdens as an aid to the
presentation and resolution of such cases both at trial and on a motion for
summary judgment. Guz v. Bechtel Nat'l,
Inc. (2000) 24 Cal,4th 317, 354-355.
At trial, the initial burden is on
the employee to establish a prima facie case of discrimination. (Not much is
required, however; circumstantial evidence creating an inference of
discrimination is sufficient.) Id. When
the employer seeks summary judgment, however, the initial burden rests with the
employer to show that no unlawful discrimination occurred. CCP § 437c(p)(2); see Id. at 354-355. Pursuant to Cornell v. Berkeley Tennis Club
(2017) 18 Cal.App.5th 908, 926, to satisfy its initial burden, the moving party
employer must either undermine an element of the plaintiff's prima facie case
by affirmatively negating it or showing the plaintiff cannot prove it, or
provide a legitimate nondiscriminatory reason for the adverse employment action.
If the employer meets this initial
burden, to avoid summary judgment the employee must produce “substantial
responsive evidence that the employer's showing was untrue or pretextual,”
thereby raising at least an inference of discrimination. Hersant v. California Dept. of Social Services
(1997) 57 Cal.App.4th 997, 1004-1005. A
plaintiff's “suspicions of improper motives … primarily based 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. Evidence
showing facts inconsistent with the employer's claimed reasons tends to prove
the employer's discriminatory intent. 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. When there are
mixed motives for the employer's action, it is enough that discriminatory
intent was a substantial motivating factor in the employer's decision to take
the adverse action. Harris v. City of
Santa Monica (2013) 56 Cal.4th 203, 232.
Defendant argues it meets the
moving burden concerning age discrimination both because (a) it can negate a
prima facie element of Plaintiff’s case, and (b) it had a legitimate,
non-pretextual reason for terminating Plaintiff’s employment.
Defendant’s fact 54 in its separate
statement states, “Plaintiff testified that he did not believe his separation
was connected to his age.” Defendant provides
Plaintiff’s own deposition testimony wherein he so stated. Plaintiff, in opposition to the fact,
contends his own statement is irrelevant, and cites evidence showing that
Defendant re-hired thirteen laborers subsequent to the lay-off, and twelve of
them were significantly younger than Plaintiff.
Absent evidence concerning the ages of everyone laid off and everyone
re-hired, the Court cannot determine whether this raises triable issues or not.
Complicating the matter further, Defendant
provides evidence that Plaintiff alleges Defendant discriminated against him due
to age to avoid paying his pension, but Plaintiff’s union, not Defendant, pays
his pension. See undisputed fact
56.
Defendant met its moving burden to
show Plaintiff admitted Defendant did not discriminate against him due to age,
and also that the only allegation concerning age discrimination is unfounded as
a matter of law. Plaintiff failed to
raise triable issues of material fact in either regard, and the motion for
summary adjudication of the age discrimination claim is granted.
Even if Defendant meets its burden
to show it had a legitimate, non-discriminatory reason for firing Plaintiff,
Plaintiff’s declaration stating that his own supervisor told him Defendant did
not want to re-hire him due to his medical condition is direct evidence of
disability discrimination, and therefore the motion for summary adjudication of
the second cause of action is denied.
Defendant correctly notes that Plaintiff
does not articulate any accommodations he asked for or was refused. Indeed, Plaintiff alleges he could do his job
without accommodation at the time of his termination. Plaintiff’s opposition does not clarify this
cause of action. He argues Defendant
failed to accommodate him when he made a request for accommodation in June of
2019, but the June 2019 request for accommodation was not pled in the complaint. The motion for summary adjudication of the
third cause of action is granted.
The interactive process cause of
action rises and falls with the failure to accommodate cause of action, and the
motion for summary adjudication of the fourth cause of action is granted.
The cause of action for wrongful
termination rises and falls with the first and second causes of action; because
the motion concerning the second cause of action is denied, the motion concerning
the fifth cause of action is also denied.
Defendant shows that there was no
employment contract between Plaintiff and it, such that this cause of action cannot
survive. Plaintiff does not mention the
sixth cause of action in his opposition to the motion. The motion for summary adjudication of the
sixth cause of action is therefore granted.
Defendant’s motion for summary
adjudication of the second and fifth causes of action is denied. The motion is otherwise granted. The FSC and trial dates remain firm. The Court notes that there is a motion to
compel mental examination scheduled for 8/16/22, and urges the parties to meet
and confer to resolve outstanding issues concerning the examination without court
intervention if at all possible.
Defendant is ordered to give notice.
Parties who intend to submit
on this tentative must send an email to the court at gdcdepts27@lacourt.org indicating intention to submit on the tentative as
directed by the instructions provided on the court website at www.lacourt.org. If the department
does not receive an email indicating the parties are submitting on the tentative
and there are no appearances at the hearing, the motion may be placed off calendar.
If a party submits on the tentative, the
party’s email must include the case number and must identify the party submitting
on the tentative. If any party does not submit on the tentative, the party should
make arrangements to appear remotely at the hearing on this matter.