Judge: Maurice A. Leiter, Case: 21STCV45427, Date: 2023-03-24 Tentative Ruling

Case Number: 21STCV45427    Hearing Date: March 24, 2023    Dept: 54

Hearing Date: March 24, 2023

Department 54, Judge Maurice A. Leiter

Motion for Summary Judgment, or in the alternative, Motion for Summary Adjudication

Moving Party: Defendant Home Depot U.S.A.

Responding Party: Plaintiff Gregory James

T/R:     DEFENDANT HOME DEPOT’S MOTION FOR SUMMARY JUDGMENT IS DENIED.

DEFENDANT’S MOTION FOR SUMMARY ADJUDICATION OF THE FIRST, SECOND AND THIRD CAUSES OF ACTION IS DENIED.

DEFENDANT’S MOTION FOR SUMMARY ADJUDICATION OF THE FOURTH, FIFTH AND SIXTH CAUSES OF ACTION AND CLAIM FOR PUNITIVE DAMAGES IS GRANTED.

            DEFENDANT HOME DEPOT TO NOTICE.

If the parties wish to submit on the tentative, please email the courtroom at SMCdept54@lacourt.org with notice to opposing counsel (or self-represented party) before 8:00 am on the day of the hearing.

The Court considers the moving papers, opposition, and reply.

BACKGROUND

On December 14, 2021, Plaintiff Gregory James sued Defendants Home Depot U.S.A., Inc. and Angel Solorzano, asserting causes of action for (1) age discrimination; (2) wrongful termination on the basis of age; (3) wrongful termination in violation of public policy; (4) defamation; (5) violation of Labor Code § 1198.5; and (6) declaratory relief. Plaintiff alleges Defendants terminated his employment based on his age and defamed him by claiming he stole from the store.

EVIDENCE OBJECTIONS

“In granting or denying a motion for summary judgment or summary adjudication, the court need rule only on those objections to evidence that it deems material to its disposition of the motion.” (CCP § 437c(q).) Defendant’s objections to the declarations of Plaintiff and Alex DiBona are OVERRULED.

ANALYSIS

“The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties' pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) Trial judges are required “to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, 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.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)

As to each claim as framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. (CCP § 437c(p)(2).) Once the defendant has met that 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 a defense thereto.” (Id.)  To establish a triable issue of material fact, the party opposing the motion must produce “substantial responsive evidence.” (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)

A. First Second Causes of Action for Age Discrimination and Third Cause of Action for Wrongful Termination in Violation of Public Policy

To successfully assert a claim for discrimination, Plaintiff must satisfy the requirements of the three-step McDonnell Douglas test. (See Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 354-55.)  Generally, a prima facie case requires showing that (1) plaintiff was a member of a protected class; (2) they were qualified for the position they sought or were performing competently in the position they held; (3) plaintiff suffered an adverse employment action, such as termination, demotion, or denial of an available job; and (4) some other circumstance suggests discriminatory motive. (See id. at 355.) 

Once a plaintiff has established a prima facie case, there is a “rebuttable” but “legally mandatory” presumption of discrimination. (Id. at 355.) The burden then shifts to the defendant to rebut the presumption by producing admissible evidence that the defendant’s “action was taken for a legitimate, nondiscriminatory reason.” (Id. at 355-356.) 

If the defendant meets its burden, “the presumption of discrimination disappears.” (Id. at 356.) The plaintiff must then show that the defendant’s legitimate reason is merely pretext. (Id.) “Pretext may be inferred from the timing of the discharge decision, the identity of the decision-maker, or by the discharged employee's job performance before termination.” (Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 224.) “Pretext may [also] be demonstrated by showing that the proffered reason had no basis in fact, the proffered reason did not actually motivate the discharge, or, the proffered reason was insufficient to motivate discharge.” (Id.) 

            Defendant asserts that Plaintiff’s claims for discrimination fail because Plaintiff does not have evidence his termination was motivated by his age, and because his employment was terminated for legitimate business reasons.

Defendant argues that Plaintiff’s claims are supported only by “speculation” that Defendant discriminated against Plaintiff based on his age. Defendant asserts Plaintiff testified that no one at Home Depot did anything to indicate they had a bias against him or other older workers because of their age, and he never complained about age discrimination. (UMF ¶¶ 51-58.)

Defendant presents evidence showing Plaintiff violated Home Depot policy by receiving unauthorized discounts on merchandise he purchased from Home Dept. (UMF ¶¶ 30, 35-42.) Defendant says this was the reason for Plaintiff’s termination.

In opposition, Plaintiff disputes these facts. (Opp. UMF ¶¶ 30, 51-58.) Plaintiff had been employed with Defendant for 24 years; he asserts that Defendant engaged in a scheme to terminate older employees, including himself. Plaintiff presents evidence that the district human resources manager asked for a report of all Home Depot employees who had been employed for at least 18 years. (AUMF ¶ 5.) Plaintiff also presents evidence showing his compensation would have increased significantly in 2022 under a new compensation policy based on years of service. (AUMF ¶ 8.) Plaintiff was terminated in 2021 and did not receive this increase. (AUMF ¶ 9.)

Plaintiff argues that Defendant’s reasons for termination are pretextual. Plaintiff maintains that he did not commit fraud or theft against Defendant. (AUMF ¶ 13.) Plaintiff presents evidence showing Defendant Home Depot, through investigator Defendant Solorzano, discovered that other employees received the same discounts but did not investigate those employees. (AUMF ¶ 25.) Plaintiff also believes Solorzano forged a written confession purporting to have been made by Plaintiff. (AUMF ¶¶ 25, 26.) Plaintiff was replaced by a 33-year-old with four years’ experience. (AUMF ¶ 36.)

Plaintiff has provided sufficient evidence to show a triable issue of fact as to age discrimination. Defendant’s motion for summary judgment is DENIED. Defendant’s motion for summary adjudication of the first, second and third causes of action is DENIED.

B. Fourth Cause of Action for Defamation

The elements of a defamation claim are (1) a publication that is (2) false, (3) defamatory, (4) unprivileged, and (5) has a natural tendency to injure or causes special damage. (See Wong v. Tai Jing (2010) 189 Cal.App.4th 1354, 1369.)  

Plaintiff alleges Solorzano stated that Plaintiff “committed theft against, stole money from and committed fraud against Defendant.” (Compl. ¶ 40.) Defendant asserts the fourth cause of action fails on the grounds that Defendants did not publish or republish false statements, and the statements are privileged.

Defendant states that Plaintiff’s only evidence of publication is that a few customers repeated rumors to Plaintiff that he was fired for stealing. (UMF ¶¶ 62-66.) In opposition, Plaintiff presents an email from Solorzano to the HR manager stating “Greg admitted to getting discounts and walking out with items inside his apron like fittings and breakers. He did state he brought them back but I could not verify if items were brought back.” Plaintiff also cites the deposition of store manager Gomez who testified, “[Solorzano] told me [Plaintiff] admitted to unauthorized discounts and taken merchandise out of the store.” (AUMF ¶ 31.)

Defendant argues that any statements made by Solorzano to other employees about Plaintiff are privileged as communications made without malice to a person about a matter in which both individuals are interested. (See Civ. Code, § 47(c).) The Court of Appeal has addressed the common interest privilege in the employment context:

This common interest privilege is not well-defined, but it has been determined to apply to statements by management and coworkers to other coworkers explaining why an employer disciplined an employee. (Deaile v. General Telephone Co. of California (1974) 40 Cal.App.3d 841, 846, 115 Cal.Rptr. 582 (Deaile) [forced retirement after employee falsified time cards]; King, supra, 152 Cal.App.4th 426, 440, 60 Cal.Rptr.3d 359.) “Clearly, an employer is privileged in pursuing its own economic interests and that of its employees to ascertain whether an employee has breached his responsibilities of employment and if so, to communicate, in good faith, that fact to others within its employ so that (1) appropriate action may be taken against the employee; (2) the danger of such breaches occurring in the future may be minimized; and (3) present employees may not develop misconceptions that affect their employment with respect to certain conduct that was undertaken in the past.” (Deaile, supra, 40 Cal.App.3d at p. 849, 115 Cal.Rptr. 582.)

(McGrory v. Applied Signal Technology, Inc. (2013) 212 Cal.App.4th 1510, 1538.)

            Solorzano’s statements fall squarely within the circumstances discussed in McGrory. Solorzano was tasked with investigating Plaintiff and reported his findings to the store manager, Gomez. Plaintiff asserts that the statements were made with malice but does not apply the standard of malice to the facts in this case; Plaintiff merely cites the law of malice. This is insufficient to create a triable issue of fact as to defamation.

            Defendant’s motion for summary adjudication of the fourth cause of action is GRANTED.

C. Fifth and Sixth Causes of Action for Violation of Labor Code § 1198.5 and Declaratory Relief

            Defendant asserts that Plaintiff’s fifth cause of action fails because Plaintiff did not request his personnel files. As Plaintiff did not request them, Defendant did not violate Labor Code § 1198.5. Defendant contends the sixth cause of action fails because there is no actual controversy for declaratory relief.

            Plaintiff does not address these causes of action in opposition and has failed to show a triable issue of fact. Defendant’s motion for summary adjudication of the fifth and sixth causes of action is GRANTED.

D. Punitive Damages

            Defendant argues that Plaintiff cannot establish punitive damages because Plaintiff does not have evidence a managing agent of Defendant acted with oppression, fraud or malice. Defendant asserts that none of the parties involved in the termination decision are managing agents of Defendant. (UMF ¶¶ 45-46.) In opposition, Plaintiff concludes that the decision to terminate was made by a managing agent but does not provide evidence to support this conclusion.

            Plaintiff has not established a triable issue of fact as to punitive damages. Defendant’s motion for summary adjudication of punitive damages is GRANTED.

Hearing Date: March 24, 2023

Department 54, Judge Maurice A. Leiter

Motion for Summary Judgment, or in the alternative, Motion for Summary Adjudication

Moving Party: Defendant Angel Solorzano

Responding Party: Plaintiff Gregory James

T/R:     DEFENDANT SOLORZANO’S MOTION FOR SUMMARY JUDGMENT IS GRANTED.

            DEFENDANT SOLORZANO TO NOTICE.

If the parties wish to submit on the tentative, please email the courtroom at SMCdept54@lacourt.org with notice to opposing counsel (or self-represented party) before 8:00 am on the day of the hearing.

The Court considers the moving papers, opposition, and reply.

BACKGROUND

On December 14, 2021, Plaintiff Gregory James sued Defendants Home Depot U.S.A., Inc. and Angel Solorzano, asserting causes of action for (1) age discrimination; (2) wrongful termination on the basis of age; (3) wrongful termination in violation of public policy; (4) defamation; (5) violation of Labor Code § 1198.5; and (6) declaratory relief. Plaintiff alleges Defendants terminated his employment based on his age and defamed him by claiming he stole from the store.

ANALYSIS

“The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties' pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) Trial judges are required “to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, 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.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)

As to each claim as framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. (CCP § 437c(p)(2).) Once the defendant has met that 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 a defense thereto.” (Id.)  To establish a triable issue of material fact, the party opposing the motion must produce “substantial responsive evidence.” (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)

Defendant Solorzano moves for summary judgment, or alternatively, summary adjudication of Plaintiff’s claims against Solorzano for defamation and punitive damages.

The elements of a defamation claim are (1) a publication that is (2) false, (3) defamatory, (4) unprivileged, and (5) has a natural tendency to injure or causes special damage. (See Wong v. Tai Jing (2010) 189 Cal.App.4th 1354, 1369.)  

Plaintiff alleges Solorzano stated he “committed theft against, stole money from and committed fraud against Defendant.” (Compl. ¶ 40.) Defendant asserts the fourth cause of action fails on the grounds that Defendants did not publish or republish false statements, and the statements are privileged.

Defendant represents that Plaintiff’s only evidence of publication is that a few customers repeated rumors to Plaintiff that he was fired for stealing. In opposition, Plaintiff presents an email from Solorzano to the HR manager stating “Greg admitted to getting discounts and walking out with items inside his apron like fittings and breakers. He did state he brought them back but I could not verify if items were brought back.” Plaintiff also cites the deposition of store manager Gomez who testified, “[Solorzano] told me [Plaintiff] admitted to unauthorized discounts and taken merchandise out of the store.”

Defendant argues that any statements made by Solorzano to other employees about Plaintiff are privileged as communications made without malice to a person about a matter in which both individuals are interested. (See Civ. Code, § 47(c).) The Court of Appeal has addressed the common interest privilege in the employment context:

This common interest privilege is not well-defined, but it has been determined to apply to statements by management and coworkers to other coworkers explaining why an employer disciplined an employee. (Deaile v. General Telephone Co. of California (1974) 40 Cal.App.3d 841, 846, 115 Cal.Rptr. 582 (Deaile) [forced retirement after employee falsified time cards]; King, supra, 152 Cal.App.4th 426, 440, 60 Cal.Rptr.3d 359.) “Clearly, an employer is privileged in pursuing its own economic interests and that of its employees to ascertain whether an employee has breached his responsibilities of employment and if so, to communicate, in good faith, that fact to others within its employ so that (1) appropriate action may be taken against the employee; (2) the danger of such breaches occurring in the future may be minimized; and (3) present employees may not develop misconceptions that affect their employment with respect to certain conduct that was undertaken in the past.” (Deaile, supra, 40 Cal.App.3d at p. 849, 115 Cal.Rptr. 582.)

(McGrory v. Applied Signal Technology, Inc. (2013) 212 Cal.App.4th 1510, 1538.)

            Solorzano’s statements fall squarely within the circumstances discussed in McGrory. Solorzano was tasked with investigating Plaintiff and reported his findings to the store manager, Gomez. Plaintiff asserts that the statements were made with malice but does not apply the standard of malice to the facts in this case; Plaintiff merely cites the law of malice. This is insufficient to create a triable issue of fact as to defamation.

            Defendant’s motion for summary judgment is GRANTED.