Judge: Mark C. Kim, Case: 21LBCV00171, Date: 2022-08-04 Tentative Ruling

Case Number: 21LBCV00171    Hearing Date: August 4, 2022    Dept: S27

  1. Background Facts

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.      


  1. Motion for Summary Judgment

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.


  1. Evidentiary Objections

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.


  1. Burdens on Summary Judgment

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.)


  1. Burdens on Summary Judgment in the Employment Context

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. 


  1. First Cause of Action, Age Discrimination

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.


  1. Second Cause of Action, Disability Discrimination

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.


  1. Third Cause of Action, Failure to Accommodate

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.


  1. Fourth Cause of Action, Interactive Process

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.


  1. Fifth Cause of Action, Wrongful Termination

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.


  1. Breach of the Implied Covenant of Good Faith and Fair Dealing

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.


  1. Conclusion

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.orgIf 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.