Judge: Mark C. Kim, Case: 21LBCV00427, Date: 2022-12-20 Tentative Ruling
Case Number: 21LBCV00427 Hearing Date: December 20, 2022 Dept: S27
1.
Background Facts
Plaintiff, Nora Salinas Macias filed this action against Defendant,
Super Center Concepts, Inc., Superior Grocers, and Superior Super Warehouse for
disability discrimination, retaliation, failure to prevent discrimination, harassment,
and retaliation, failure to provide reasonable accommodations, failure to
engage in the good faith interactive process, wrongful termination, IIED, and
declaratory judgment.
Plaintiff alleges Defendants hired her in 2004 to work as a non-exempt
cashier. She alleges she reported a work
injury in May of 2019 and noticed her hours were significantly reduced
beginning in June of 2019. She alleges a
co-worker told her hours had been decreased because the store manager, Lisa
Case, wanted her to quit; Case also allegedly refused to allow her to take her
ten-minute break to rest her injured knee.
Plaintiff alleges she filed a workers’ compensation claim in June of 2019,
and started leave on 7/01/19. She
alleges she submitted doctor’s notes to Defendants monthly to extend her
medical leave. She alleges she updated
her address with Defendants on 7/07/19.
On 9/17/19, Defendants mailed a notification to Plaintiff’s old address
asking for documentation to extend medical leave. Plaintiff did not receive the notification,
and called on 9/25/19 to check on her employment status, at which time she was
told she had been terminated. She
explained that she never received any notice, and that she remained on medical
leave as certified by her doctor.
Plaintiff filed her complaint on 8/11/21. She dismissed Superior Grocers and Superior
Super Warehouse on 10/26/21.
2.
Motion for Summary Judgment/Adjudication
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. If a
defendant chooses the latter option he or she must present evidence “and not
simply point out that plaintiff does not possess and cannot reasonably obtain
needed evidence….” Aguilar, supra, 25 Cal.4th at 865-66,
[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) 20 Cal.App.5th 1095, 1103.
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.)
Plaintiff submitted evidentiary
objections with her opposition papers. Defendant
filed a response to those objections with its reply papers. Plaintiff objects to the entirety of the
Montes and Bonilla Declarations on various grounds. There are, at minimum, portions of both
declarations that are not subject to objection.
The objections are therefore overruled.
Defendant submitted objections with
its reply papers. Defendant objects to
Plaintiff’s entire declaration on the ground that Plaintiff only speaks Spanish
and there is no declaration concerning translation. The Court lacks personal knowledge concerning
what language Plaintiff speaks, and the objection cites no evidence to support
the conclusion that she only speaks Spanish.
Additionally, at most the Court would sustain this objection and permit
Plaintiff to cure the defect. The Court
has considered the declaration.
The remaining objections are also
overruled.
i.
Parties’ Positions
Defendant argues the Court should
summarily adjudication all of Plaintiff’s termination-related claims because it
had a legitimate, non-pretextual reason to terminate Plaintiff’s employment,
and Plaintiff cannot raise a triable issue of material fact concerning
pretext.
Plaintiff argues there is evidence
of pretext, such that summary adjudication must be denied.
ii.
Relevant Law
When an employer moves for summary adjudication of a discrimination/wrongful
termination claim, the employer must carry the burden of showing the employee's
action has no merit (CCP §437c(p)(2)). It may do so by evidence either:
— negating an essential element of the employee's claim; or
— showing some legitimate, nondiscriminatory reason for the action
taken against the employee. Caldwell v.
Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 202-203.
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.
An employee may also avoid summary judgment by attacking the
credibility of the employer's declarations; i.e., by demonstrating “such
weaknesses, implausibilities, 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 (1997) 57 Cal.App.4th 997, 1005. However, though “disbelief of an Employer's
stated reason for a termination gives rise to a compelling inference that the
Employer had a different, unstated motivation, … it does not, without more,
reasonably give rise to an inference that the motivation was a prohibited one.”
McGrory v. Applied Signal Technology,
Inc. (2013) 212 Cal.App.4th 1510, 1531-1532.
Notably, it is not enough for the employee to raise triable issues of
fact concerning whether the employer's reasons for taking the adverse action
were sound (e.g., refuting claims of poor job performance): “The employee
cannot simply show that the employer's decision was wrong or mistaken, since
the factual dispute at issue is whether discriminatory animus motivated the
employer, not whether the employer is wise, shrewd, prudent or competent.” Hersant, supra at 1005.
iii.
Moving
Burden
Defendant provides evidence that it received doctor’s notes extending
Plaintiff’s leave through the end of August, but did not ever receive a note in
September. See, specifically, fact
28. It provides evidence that it terminated
her for being away from work while not on a medical leave of absence thereafter. See fact 29.
This is sufficient to meet the moving burden.
iv.
Triable
Issues of Material Fact
Plaintiff adequately presents triable issues of material fact concerning
whether Defendant’s stated reason for her termination was a mere pretext. Specifically, Plaintiff provides evidence
that, on 9/02/19, she attempted to call Defendant re: a new note, but the call
was not returned. She then called Tina Lopez,
a manager for Defendant, who told her she did not need to bring in a new note
because the dispute was between her workers’ compensation lawyer and her job.
Plaintiff admits she gave Defendant a change of address form very
late. She gave Defendant the form,
however, by Defendant’s own admission, in July of 2019, well before any of the
events that form the basis of her termination.
Defendant admits the form was properly lodged, but did not make its way
into Defendant’s computer system. Fact 32. It sent a return to work letter on 9/10/19
(fact 33), and Plaintiff did not respond because she did not receive the letter
(fact 34). On 9/17/19, Defendant sent a
second return to work letter, also to the old address (Plaintiff had moved
again, but was still receiving mail at the address updated in the system). Plaintiff also did not receive this letter. Plaintiff provides evidence that leads to a
reasonable conclusion that Defendant knew she did not receive the letters;
specifically, she provides evidence that she called on 9/25/19 and talked to
Laura Bonilla in HR, who told her to write down the tracking numbers for the
letters and pick them up at the post office.
Plaintiff’s additional fact 38.
Plaintiff relies on Alejandro v. ST Micro Electronics, Inc., 129 F.Supp.3d
898, 912 (2015) to support her position that Defendant’s obligation to engage
in the interactive process continued even after Plaintiff’s termination, once
Defendant learned of the true facts showing the termination was disability-related. Alejandro is a federal district court
case. Additionally, while it briefly
mentions a refusal to reconsider the termination after learning of the disability,
that is only one part of the process that it entirely determined was
sufficiently alleged to defeat demurrer.
Regardless, the Court finds there are triable issues of material fact
re: whether Defendant knew Plaintiff had been out on disability, knew she was
not receiving the letters being mailed, and/or told Plaintiff, through its
agent, that she need not provide an additional documentation concerning her
disability, and yet it still fired Plaintiff.
The foregoing, if proven true to a jury, could lead the jury to
determine the stated reason for termination, failure to return to work at the
completion of medical leave, was merely pretextual. The motion for summary adjudication of the termination-related
claims is therefore denied.
Defendant’s second argument, found at page 18 of its moving brief, is
that Plaintiff’s non-termination related discrimination and retaliation claims
fail as a matter of law. Defendant fails
to state which causes of action it is challenging by way of this section of its
brief, and fails to indicate which of the fourteen purported issues on summary
adjudication are relevant to this section of its brief. Notably, at line 8 of page 18, it contends
the claims are all based on termination and/or reduced hours.
Defendant failed to show there are any causes of action in the complaint
based solely on an alleged reduction in hours.
It therefore failed to show any cause of action can or should be
summarily adjudicated on this basis. The
Court declines to determine whether it met its burden in regards to reduced
work hours and/or whether there are triable issues of material fact concerning
reduced work hours.
Defendant’s argument re: failure to provide accommodations is
substantially the same as its argument re: wrongful termination. It argues it accommodated her each time she
provided a doctor’s note seeking accommodation.
The accommodation at the heart of this case, however, is the
accommodation of an extended leave of absence commencing in September of 2019
in lieu of termination. Because there
are triable issues of material fact concerning wrongful termination, there are
necessarily triable issues of material fact concerning failure to provide this
additional necessary accommodation.
Defendant correctly notes that the failure to engage in the interactive
process claim rises and falls with the other claims. Because the motion for summary adjudication of
the other claims fails, this motion also fails.
Defendant, in its separate statement in support of its request for
summary adjudication of the IIED cause of action, merely incorporates facts
1-173 by reference. Because there are
triable issues of material fact concerning facts 1-173, as discussed above, the
motion for summary adjudication of the IIED cause of action is also denied.
Civil Code §3294 requires an act of oppression, fraud, or malice by an
officer, director, or managing agent of the defendant. Defendant argues that the only person
Plaintiff accuses of such conduct, Liz Casas, is not an officer, director, or
managing agent. Declaration of Montes,
¶6.
Plaintiff correctly notes, in opposition to the motion, that her
complaint is not premised solely on the conduct of Casas. Nothing in the complaint suggests only Casas’s
actions subject Defendant to punitive damages.
Plaintiff merely alleges Defendant acted with fraud, malice, and/or
oppression in connection with the acts giving rise to her wrongful termination. Defendant’s moving papers do not attempt to
negate this allegation.
Additionally, Defendant’s separate statement, in connection with the
punitive damages issue, incorporates facts 1-175 by reference and then provides
evidence that Casas is not an officer, director, or managing agent. By incorporating facts 1-175 by reference,
Defendant admits those facts are all relevant.
There are, however, triable issues of material fact relating to facts
1-175, as discussed above.
The motion for summary adjudication is therefore denied.
Defendant’s motion for summary judgment is denied. Its alternative motion for summary
adjudication is also denied.
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 the parties
do not submit on the tentative, they should arrange to appear remotely.