Judge: Mel Red Recana, Case: 19STCV46508, Date: 2024-03-13 Tentative Ruling

All rulings shown here are TENTATIVE ONLY, and thus oral argument WILL be heard. All Counsel are still required to attend.

Case Number: 19STCV46508 Hearing Date: March 13, 2024 Dept: 45

Superior Court of California

County of Los Angeles

JOEL ARTIGA,

Plaintiff,

vs.

WASTE MANAGEMENT, ET AL.,

Defendants.

Case No.: 19STCV46508

DEPARTMENT 45

[TENTATIVE] RULING

Action Filed: December 23, 2019

FAC Filed: May 26, 2020

Trial Date: January 13, 2025

Hearing date: March 13, 2024

Moving Party: Defendant Waste Management of California, Inc.

Responding Party: Plaintiff Joel Artiga

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

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

The Motion for Summary Judgment is DENIED. The Motion for Summary Adjudication is GRANTED as to the 6^th cause of action for negligent hiring and supervision. The Motion for Summary Adjudication is DENIED as to all other remaining causes of action and issues, including punitive damages.

Background

Plaintiff worked for Defendants in the LA Dumpster Rental location for over 20 years. Plaintiff was suspended in January 2018 for failing to properly position a dumpster container at a construction site, despite the fact that every single driver who worked for Defendants positioned the dumpster container in the exact same way. Plaintiff alleges supervisors also directed and permitted drivers to position the dumpster in this way. After his supervisor, Defendant Nicholas Moreno, staged the container in the same position in violation of company policy, he informed Plaintiff’s direct supervisor and unjustly placed blame on Plaintiff. As a result, Defendants discriminated, harassed and retaliated against Plaintiff. Plaintiff was ultimately terminated.

Plaintiff alleges he was discriminated against and terminated due to his age, which was 52 years at the time of the relevant events. Plaintiff alleges Defendants stated multiple times that they wanted to replace older employees like Plaintiff with younger, cheaper employees.

On December 23, 2019, Plaintiff filed this action against Defendants Waste Management, Waste Management of California Inc. (“WMCI”), USA Waste Management of California (“USA Waste”), A Waste Management Company and Nicholas Moreno. On May 26, 2020, Plaintiff filed the operative First Amended Complaint against these same Defendants alleging (1) age discrimination; (2) harassment based on age; (3) failure to prevent harassment and discrimination; (4) wrongful termination in violation of public policy; (5) violation of Labor Code §1102.5; (6) negligent hiring and supervision; and (7) IIED.

On March 17, 2022, Defendant Waste Management of California, Inc. (“WMCI”) filed the instant Motion for Summary Judgment, or in the alternative, Summary Adjudication. On November 7, 2023, Plaintiff filed an opposition to WMCI’s MSJ. On November 16, 2023, WMCI filed a reply.

Legal Standard

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 of Civil Procedure §437c(c).) From commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to a judgment as a matter of law. There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof. (Aguilar v. Atlantic Richfield Company (2001) 25 Cal.4th 826, 855.)

Pursuant to Code of Civil Procedure §437c(f)(1), a party may properly seek summary adjudication of one or more causes of action, one or more affirmative defenses, the issue of punitive damages or the issue of duty. (Code of Civil Procedure §437c(f)(1).) “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim of damages or an issue of duty.” (Id.)

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.” (Code of Civil Procedure §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 plaintiff to show that a “triable issue of one or more material facts exists as to that cause of action or defense thereto.” (Id.)

“A party is entitled to summary judgment only if it meets its initial burden of showing there are no triable issues of fact and the moving party is entitled to judgment as a matter of law. This is true even if the opposing party fails to file any opposition. The court's assessment of whether the moving party has carried its burden—and therefore caused a shift—occurs before the court's evaluation of the opposing party's papers. Therefore, the burden on the motion does not initially shift as a result of what is, or is not, contained in the opposing papers.” (Mosley v. Pacific Specialty Insurance Company (2020) 49 Cal.App.5th 417, 434–435 (landlord’s failure to address issue of whether they were aware of their tenant’s marijuana growing operation was not grounds to grant summary judgment where moving party failed to satisfy its initial burden as to the issue); Thatcher v. Lucky Stores, Inc. (2000) 79 Cal.App.4th 1081, 1086-1087 (court cannot grant summary judgment based merely on lack of opposition; court must first determine if the moving party has satisfied its burden).)

In addition, the evidence and affidavits of the moving party are construed strictly, while those of the opponent are liberally read. (Government Employees Ins. Co. v. Sup. Ct. (2000) 79 Cal.App.4th 95, 100.) “All doubts as to the propriety of granting the motion (whether there is any issue of material fact [Code of Civil Procedure] § 437c) are to be resolved in favor of the party opposing the motion (i.e., a denial of summary judgment).” (Hamburg v. Wal-Mart Stores, Inc. (2004) 116 Cal.App.4th 497, 502.)

Request for Judicial Notice

Plaintiff’s Request for Judicial Notice of his Exhibits 2-3, 13, 21, 22 and 35 is GRANTED. These are documents filed with government agencies. The fact that the documents were filed on their respective dates with these agencies is judicially noticed. However, the truth of the contents of those documents is not judicially noticed.

Plaintiff’s Request for Judicial Notice of his Exhibits 4, 5, 14 and 16 is DENIED. These documents do not fall within the category of judicially noticeable documents under Evidence Code §§452 and 453. However, Exhibits 4 and 5 are admissible evidence as statements of admission.

Evidentiary Objections

WMCI’s Objection Nos. 1-5, 7 to Gallagher Declaration are OVERRULED. The Court declines to rule on Objection Nos. 6 and 8 pursuant to CCP §437c(q) as immaterial to the ruling.

WMCI’s Objections to the Gomez Declaration are OVERRULED.

WMCI’s Objections to the Ramirez Declaration are OVERRULED.

WMCI’s Objections to the Artiga Declaration are OVERRULED.

Discussion

Parties’ Positions

WMCI’s MSJ filed on March 17, 2022

WMIC makes arguments disputing its status as Plaintiff’s employer that are identical to those asserted by WMI in its motion for summary judgment. WMCI moves for summary judgment on grounds that it never employed Plaintiff. WMCI argues Plaintiff’s causes of action are all premised on WMI’s status as Plaintiff’s employer. WMCI argues that under the common law test to determine employment relationship, WMCI was never Plaintiff’s employer, because it never exercised any control over Plaintiff’s employment. WMCI argues Plaintiff admitted he never heard of WMCI and his only supervisor was Carmen Muno, who was likewise never employed by WMCI, nor was Jose Bravo, the district manager, or Nicholas Moreno. WMCI argues Plaintiff’s earnings statements and W-2 forms do not list WMI as the employer.

WMCI argues in the alternative that, even if there were a triable issue of fact as to its employer status, Plaintiff’s substantive claims fail. WMCI makes identical arguments regarding the substantive merits of Plaintiff’s claims as WMI in its Motion for Summary Judgment.

WMCI argues Plaintiff’s claims are all preempted by Section 301 of the Labor Management Relations Act (“LMRA”). WMCI argues resolution of Plaintiff’s claims requires the Court to interpret the Collective Bargaining Agreement (“CBA”) between Plaintiff’s union and Plaintiff’s employer. WMCI argues the CBA governed the terms and conditions of Plaintiff’s employment, including the procedure and grounds for termination and discipline. WMCI argues Plaintiff’s complaint challenges the legitimacy of WMCI’s interpretation and application of the CBA to terminate and discipline Plaintiff. WMCI argues the Supreme Court has held that Section 301 preempts state law claims under these circumstances.

WMCI argues Plaintiff also cannot satisfy his burden to establish that his termination was based on his age. WMCI argues Plaintiff has provided no evidence that his age had anything to do with his termination. WMCI argues Plaintiff admits that the basis for his termination was his violation of Life Critical Rule No. 6. WMCI argues if Plaintiff claims this reason for his termination was pretextual, Plaintiff will be unable to provide evidence corroborating his claim of pretext. WMCI argues the only comment identified by Plaintiff as being evidence of pretext did not make any reference to his age and was a single, isolated comment.

WMCI argues Plaintiff’s Labor Code §1102.5 claim fails, because Plaintiff never engaged in any whistleblower conduct. WMCI argues Plaintiff’s complaints about the long hours were not disclosures of potential violations of law but purely internal personnel matters. WMCI argues Plaintiff also cannot establish that any of his alleged complaints or statements were the basis for his termination. WMCI argues the evidence establishes that Plaintiff was legitimately terminated for violating a rule that was grounds for immediate termination. WMCI argues Plaintiff also made his complaints about hours to Carmen Munoz, who was not the decisionmaker who terminated Plaintiff.

WMCI argues Plaintiff’s IIED claim is barred by worker’s compensation exclusivity. WMCI argues Plaintiff’s allegations also do not qualify as extreme or outrageous conduct. WMCI argues Plaintiff’s allegations only establish that WMCI engaged in ordinary managerial conduct.

WMCI argues Plaintiff’s negligent hiring, supervision and retention claim fails as an issue of law because it is barred by worker’s compensation exclusivity. WMCI argues the negligence claim also fails, because Plaintiff concedes that he never complained about Bravo or Moreno during his employment. WMCI argues it never had notice of any unfitness of its alleged employees, an essential element of the negligent hiring, et al. claim.

WMCI argues Plaintiff’s claims for failure to prevent harassment and discrimination and wrongful termination fail, because there was no underlying harassment, discrimination or wrongful termination. WMCI argues Plaintiff will be unable to establish that his termination for failing to properly position the roll-off box was pretextual.

Finally, WMCI argues Plaintiff’s claim for punitive damages fails. WMCI argues Plaintiff has not alleged, attested to or otherwise shown that WMCI engaged in fraud, oppression or malice. WMCI argues Plaintiff also cannot demonstrate that an officer, director or managing agent of Defendant had advance knowledge of the alleged wrongful acts or approved or ratified such conduct.

Plaintiff’s Opposition filed on November 7, 2023

Plaintiff argues WMCI is a joint employer and/or alter ego of USA Waste Management of California and Waste Management, Inc. Plaintiff argues WMIC shares officers and directors with these entities.

Plaintiff argues WMI fails to establish that the FEHA claims are barred and preempted by Section 301 of the Labor Management Relation Act. Plaintiff argues the mere fact that the CBA might provide a remedy or a duty related to a situation is insufficient to establish preemption. Plaintiff argues the Ninth Circuit has established that antidiscrimination statutes are not preempted by Section 301, because the right at issue is defined and enforced under state law. Plaintiff argues determining whether Defendants' reasons for termination were pretextual does not require interpretation of the CBA and only involves a factual question.

Plaintiff argues the reason given for his termination was pretextual. Plaintiff argues the roll-out bin was placed facing traffic for months by Plaintiff and other employees and that they did so per the instruction and approval of supervisors and the client. Plaintiff argues management knew this was the reason why the roll-out bin was placed where it was, opposing traffic. Plaintiff’s supervisor, Carmen Munoz, bullied other employees to sign statements regarding the roll out bin and stated to him that she wanted to get rid of personnel. Plaintiff argues this is sufficient to raise a triable issue of fact as to whether Defendants’ reason for terminating him was a pretext for age discrimination.

Plaintiff argues Defendants fail to negate any element of his Labor Code §1102.5 claim. Plaintiff argues he complained about the number of hours he was working and there is no evidence that he did not believe that he was complaining about something illegal. Plaintiff argues Defendants have not proven by clear and convincing evidence that Plaintiff would have been terminated even if he had not made the complaint.

Plaintiff argues the IIED claim survives because it is based on FEHA violations. Plaintiff argues he has suffered from extreme emotional distress as a result of Defendants’ wrongful termination and discrimination against him.

Plaintiff argues he is entitled to punitive damages based on FEHA violations. Plaintiff argues Defendants have not negated his allegations of discrimination and therefore, grounds for punitive damages.

Plaintiff argues his claims are not barred by workers’ compensation exclusivity. Plaintiff argues Defendants have not demonstrated that the action alleged are within the normal scope of work, given that they qualify as FEHA violations. Plaintiff argues he has suffered emotional distress due to Defendants’ termination of him based on his age.

WMCI’s Reply filed on November 16, 2023

WMCI argues there is no dispute that it was not Plaintiff’s employer based on the undisputed, admissible evidence. WMCI argues Plaintiff was only ever employed by USA Waste and there is no evidence that WMCI exercised control over Plaintiff or permitted him to work. WMCI argues it was USA Waste alone that exercised control over Plaintiff’s hours, wages, working conditions, terms of employment, including the decision to hire, discipline and fire him. WMCI argues USA Waste’s name was also the only name on Plaintiff’s paychecks.

WMCI argues the mere fact that it shared officers and directors with USA Waste, WMI reported assets of both WMCI and USA Waste on its annual 10K report to the SEC, and WMI reported labor costs and benefits as an expense in its 10K is not enough to establish an employer-employee relationship with Plaintiff. WMCI argues that a parent can only be deemed an employer of a subsidiary’s employees if it exercised control over day-to-day employment decisions of its subsidiary, i.e. more than the control normally exercised by a parent over a subsidiary. WMCI argues there is no evidence that it ever exercised such control or that it in any occupied the role or duties of an employer.

WMCI argues the undisputed facts and evidence also establish there is no genuine dispute as to alter ego. WMCI argues there is a presumption against alter ego and the factors listed by Plaintiff are insufficient to establish the doctrine as to WMCI and USA Waste. WMCI argues Plaintiff also fails to identify any basis to find that there will be an inequitable result if WMI’s separate corporate existence is recognized.

WMCI argues that even if there were a dispute as to its employer status, there is no genuine dispute as to the basis for Plaintiff’s termination, which was his violation of Life Critical Rule 6. WMCI argues Plaintiff does not deny that he violated Rule 6. WMCI argues Plaintiff fails to present any evidence from which a trier of fact could infer that this was a pretext for age discrimination. WMCI argues the violation did not require progressive discipline under the CBA, nor does Plaintiff present any evidence or argument that the persons who made the decision to terminate him, Dory and Kato, had any discriminatory animus.

WMCI argues the claims will also require the Court to interpret the CBA. WMCI argues the claims are therefore preempted by Section 301 of the Labor Management Relations Act.

WMCI argues the IIED claim is also subject to workers’ compensation exclusivity. WMI argues the IIED claim is based on conduct that occurred at the worksite in the normal course of the employer-employee relationship, i.e. the decision to terminate Plaintiff.

WMCI argues the punitive damages claim likewise fails. WMCI argues the evidence establishes that it took no actions that could justify punitive damages. WMCI argues it did not even participate in the decision to terminate Plaintiff, nor did it hire him or in any way participate in any investigation or termination of his employment.

No triable issues of fact remain as to whether WMCI was Plaintiff’s joint employer

Test to determine “Employer”

Pursuant to Government Code §12926, an “employer” for purposes of FEHA “includes any person regularly employing five or more persons, or any person acting as an agent of an employer, directly or indirectly…” (Gov. C. §12926.) “[A] business-entity agent of an employer can fall within the FEHA's definition of employer, and it may be directly liable for FEHA violations, in appropriate situations. Although the question presented in this case does not require that we go further and attempt to identify the specific scenarios in which a business-entity agent will be subject to liability under the FEHA, we recognize as a necessary minimum that, consistent with the FEHA's language and purpose, a business-entity agent can bear direct FEHA liability only when it carries out FEHA-regulated activities on behalf of an employer.” (Raines v. U.S. Healthworks Group (2023) 15 Cal.5^th 268, 288.)

“An employee who seeks to hold a parent corporation liable for the acts or omissions of its subsidiary on the theory that the two corporate entities constitute a single employer has a heavy burden to meet under both California and federal law. Corporate entities are presumed to have separate existences, and the corporate form will be disregarded only when the ends of justice require this result. In particular, there is a strong presumption that a parent company is not the employer of its subsidiary's employees.” (Laird v. Capital Cities/ABC, Inc. (1998) 68 Cal.App.4^th 727, 738.)

“Single enterprise theory” or “joint enterprise theory” is a recognized theory of derivative liability. (Gopal v. Kaiser Foundation Health Plan (2016) 248 Cal.App.4th 425, 431-432.) Under the “integrated enterprise test,” four factors are examined: interrelation of operations, common management, centralized control of labor relations and common ownership or financial control. (Id. at 737.) “Under this test, common ownership or control alone is never enough to establish parent liability. Although courts consider the four factors together, they often deem centralized control of labor relations the most important. The critical question is, what entity made the final decisions regarding employment matters related to the person claiming discrimination? A parent's broad general policy statements regarding employment matters are not enough to satisfy this prong. To satisfy the control prong, a parent must control the day-to-day employment decisions of the subsidiary.” (Id. at 738.)

“To make a sufficient showing of ‘interrelation of operations’ on summary judgment, the plaintiff must do more than merely show that officers of the subsidiary report to the parent corporation or that the parent benefits from the subsidiary's work. Since these facts exist in every parent-subsidiary situation, such a showing would create a triable issue of material fact in every case. What the plaintiff must show, rather, is that the parent has exercised control to a degree that exceeds the control normally exercised by a parent corporation.” (Id. at 738.)

WMCI negates the allegation that it was Plaintiff’s employer

WMCI submits evidence that Plaintiff was only employed by USA Waste of California, Inc. (WMCI’s SSUMF No. 3; Defendant’s COE, Burns Dec., ¶3.) Plaintiff’s only supervisor he could recall, Carmen Munoz, was only employed by USA Waste, not WMCI. (WMCI SSUMF No. 8; Defendant’s COE, Burns Dec., ¶4.) Nicholas Moreno, another supervising employee identified by Plaintiff in the FAC, was never employed by WMCI and was only ever employed by USA Waste. (WMCI SSUMF Nos. 10; Defendant’s COE, Burns Dec. ¶6.) Joey Bravo was also not an employee of WMCI. (WMCI SSUMF No. 9, Burns Dec., ¶5.) WMCI never issued a paycheck to Plaintiff and any earnings statements, paychecks and W-2s were issued by USA Waste. (WMCI SSUMF Nos, 11-14; Defendant’s COE, Burns Dec. ¶¶7-8.) Plaintiff’s unemployment claim only named USA Waste. (WMCI SSUMF No. 15; Defendant’s COE, Burns Dec., ¶9.)

Based on these facts, WMCI was not Plaintiff’s employer. WMCI did not hire Plaintiff, did not pay Plaintiff, did not oversee Plaintiff, nor did its employees. The evidence establishes that WMI did not exercise control over USA Waste or WMCI beyond that normally exercised by a parent over its subsidiary.

The persons identified by Plaintiff as making the day-to-day decisions regarding his employment were also employed by USA Waste, not WMI. Plaintiff only identifies Carmen Moreno, Joey Bravo and Nicholas Moreno as the persons who oversaw him and were involved in the decision to terminate. These individuals were never employees of WMI. (WMCI’s SSUMF Nos. 8-10.)

Plaintiff fails to raise a triable issue of fact as to whether WMCI was his employer

Plaintiff submits evidence that WMCI shares officers with WMI and USA Waste of California. (Plaintiff’s Opposition to WMCI’s SSUMF No. 1; Plaintiff’s RJN, Exs. 2 and 3.) Plaintiff submits evidence that Courtney Tippy is the secretary for all of the Waste Management entities, including Waste Management, Inc. and its 400 to 500 subsidiaries. (Gallagher Dec., Ex. 1, Tippy Dep., pp. 12-13.)

Plaintiff submits evidence that WMCI, USA Waste and Waste Management, Inc. all share the same corporate offices. (Plaintiff’s Separate Statemnet, SSUMF No. 47.) Plaintiff submits copies of Plaintiff’s earnings statements, which list USA Waste of California, Inc. under “Company Name.” (Gallagher Dec., v. 1, Ex. 17, USAWASTE000116.) The same earnings statement identifies the mailing address as “Waste Management” at 1001 Fannin Street, Suite 400, Houston, TX. (Id.)

Plaintiff submits evidence that WMI does not have any employees and must therefore act through the employees of its wholly owned subsidiaries. (Gallagher Dec., Ex. 1, Tippy Dep., 64:16-20.) Plaintiff submits evidence that WMI stated in its 2021 Form 10-K, “[w]e employed approximately 48,500 people as of December 31, 2021.” (Gallagher Dec., Ex. 5, WMI 2021 10-K, p. 004.) Plaintiff submits his testimony identifying WMI as one of his employers. (Gallager Dec., Ex. 14, Plaintiff’s Dep., 29:19-24.)

None of Plaintiff’s evidence demonstrates control over the day-to-day employment decisions regarding Plaintiff’s employment. There is no evidence that WMCI ever hired Plaintiff, oversaw the terms of his employment, including discipline or termination, or paid him. Plaintiff’s evidence is largely directed at establishing that WMI was his joint employer with USA Waste. WMI’s summary judgment was denied precisely because Plaintiff’s evidence raised an issue as to whether WMI was his employer.

However, that same evidence does not establish that WMCI was his employer. The mere fact that WMCI shared some officers and a physical office address with WMI does not establish WMCI’s control over his employment. The undisputed evidence establishes that Plaintiff’s paychecks and earnings statements were issued by USA Waste, that the supervisors identified by Plaintiff were employed by USA Waste, that Plaintiff applied to work with WMI and per his deposition testimony, that he worked for WMI and USA Waste. Plaintiff fails to raise a triable issue of fact as to whether WMCI was a joint employer with WMI and USA Waste.

Triable issues of fact remain as to whether WMCI can be held liable as the alter ego of WMI

Alter Ego Law

Alter ego is a recognized theory of derivative liability in California and it is not improper for Plaintiff to assert it. (Automotriz Del Golfo De California SA de CV v. Resnicke, et al. (1957) 47 Cal.2d 792, 796; Sonora Diamond Corp.et al. v. Supr. Ct. (2000) 83 Cal.App.4th 523, 538; 9 Witkin, Summary (11th ed. 2017), Corp §11.) “To recover on an alter ego theory, a plaintiff need not use the words ‘alter ego,’ but must allege sufficient facts to show a unity of interest and ownership, and an unjust result if the corporation is treated as the sole actor.” (Leek v. Cooper (2011) 194 Cal.App.4th 399, 415.) Merely alleging that “a person owns all of the corporate stock and makes all of the management decisions is insufficient to cause the court to disregard the corporate entity.” (Id.)

“Several factors are to be considered in applying the doctrine; among them are: commingling of funds and other assets…the treatment by an individual of the assets of the corporation as his own…sole ownership of all of the stock in a corporation by one individual or the members of a family; the failure to adequately capitalize a corporation; the total absence of corporate assets, and undercapitalization; the use of a corporation as a mere shell, instrumentality or conduit for a single venture or the business of an individual or another corporation…the disregard of legal formalities and the failure to maintain arm's length relationships among related entities…the diversion of assets from a corporation by or to a stockholder or other person or entity, to the detriment of creditors…the contracting with another with intent to avoid performance by use of a corporate entity as a shield against personal liability, or the use of a corporation as a subterfuge of illegal transactions…This long list of factors is not exhaustive. The enumerated factors may be considered among others under the particular circumstances of each case.” (Id. at 417–418.)

“Critically, no single factor is determinative, and instead a court must examine all the circumstances to determine whether to apply the doctrine. There is no litmus test to determine when the corporate veil will be pierced; rather the result will depend on the circumstances of each particular case. Because it is founded on equitable principles, application of the alter ego is not made to depend upon prior decisions involving factual situations which appear to be similar. It is the general rule that the conditions under which a corporate entity may be disregarded vary according to the circumstances of each case.” (JPV I L.P. v. Koetting (2023) 88 Cal.App.5th 172, 195.) The “alter ego inquiry may, in appropriate circumstances, focus narrowly on certain inequitable uses of the corporate from for specific purposes.” (Id.)

In determining whether to apply alter ego, the court must consider “all the circumstances relevant to the alter ego inquiry.” (Id. at 196.) This includes arbitral findings that are entitled to collateral estoppel effect. (Id.)

Alter ego does not require a showing that the use of the corporate form was a “sham, in bad faith, or intended to defraud.” (Id. at 199.) “[C]ourts may ignore the corporate entity under the alter ego doctrine “when the corporate form is used to perpetrate a fraud, circumvent a statute, or accomplish some other wrongful or inequitable purpose.” (Id.) The mere fact that a corporate entity is a “real business with real purpose and assets and not a sham corporate entity formed for the purpose of committing a fraud or other misdeeds” does not preclude application of alter ego. Such a “narrow formulation of the doctrine based on the purposes of the corporate entity’s formation” is a “misunderstanding of the applicable law.” (Id.)

The “inequitable result” prong of alter ego requires a “finding that the facts are such that adherence to the fiction of the separate existence of the corporation would sanction a fraud or promote injustice. The test for this requirement is that if the acts are treated as those of the corporation alone, it will produce an unjust or inequitable result. An inequitable result does not require a wrongful intent.” (Id. at 200.) While inability to collect alone does not satisfy the inequitable result prong, “inability to collect combined with other factors indicating inequitable uses of the corporate form, may justify the unjust result element for alter ego liability.” (Id.)

“The conditions under which the corporate entity may be disregarded vary according to the circumstances in each case and the matter is particularly within the province of the trial court.” (Misik v. D'Arco (2011) 197 Cal.App.4th 1065, 1071–1072.) “Whether a party is liable under an alter ego theory is a question of fact.” (Leek, supra, 194 Cal.App.4th at 418.)

WMCI does not address alter ego and fails to negate Plaintiff’s allegation of alter ego in the FAC

WMCI’s motion fails to address whether it can be held liable based on alter ego. In opposition, Plaintiff argues WMCI’s liability based on its status as an alter ego of WMI and USA Waste. WMCI responds to Plaintiff’s alter ego allegations in its reply.

Plaintiff alleges in his FAC that WMCI and all other defendants were acting as alter egos of one another. (FAC, ¶12.) As moving party on summary judgment, WMCI was required to first negate Plaintiff’s allegation of alter ego liability before the burden shifted to Plaintiff to raise a triable issue of fact on the theory. (Mosley, supra, 49 Cal.App.5th at 434–435; Thatcher, supra, 79 Cal.App.4th at 1086-1087.) WMCI failed to satisfy its initial burden on the alter ego theory. Triable issues of fact therefore remain as to whether WMCI is liable to Plaintiff as the alter ego of WMI and/or USA Management.

The mere fact that WMCI negated Plaintiff’s allegation that it was his employer therefore does not resolve the ultimate issue of whether WMCI can be held liable for the obligations of whichever entity or entities are deemed Plaintiff’s employer, i.e. WMI and/or USA Management. WMCI’s motion for summary judgment is denied.

Triable issues of fact remain as to whether Defendants terminated Plaintiff for a legitimate, nondiscriminatory reason

McDonnell Douglas Test and burdens on summary judgment of FEHA discrimination claims

“It is an unlawful employment practice…for an employer, because of the…age…of any person…to discharge the person from employment or from a training program leading to employment, or to discriminate against the person in compensation or in terms, conditions, or privileges of employment.” Govt. C. §12940(a).

An employment discrimination case can be proven with direct or circumstantial evidence. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 356.) “[D]irect evidence of intentional discrimination is rare, and that such claims must usually be proved circumstantially.” (Id. at 354.)

In response to this reality, the courts apply a burden shifting test to circumstantial evidence cases of discrimination known as the “McDonnell Douglas” test, first articulated in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792. (Id.) However, in the rare case where a plaintiff possesses direct evidence of discrimination, the burden-shifting analysis under the McDonnell Douglas test and discussed in Guz does not apply.” (DeJung v. Supr. Ct. (2008) 169 Cal.App.4th 533, 550 (direct evidence of discrimination presented where presiding judge informed 65-year old applicant for full-time commissioner position that hiring committee indicated they wanted to hire a candidate who was “younger,” “maybe in their mid-40s”).)

“At trial, the McDonnell Douglas test places on the plaintiff the initial burden to establish a prima facie case of discrimination…Generally, the plaintiff must provide evidence that (1) he was a member of a protected class, (2) he was qualified for the position he sought or was performing competently in the position he held, (3) he suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some other circumstance suggests discriminatory motive. If, at trial, the plaintiff establishes a prima facie case, a presumption of discrimination arises. This presumption, though rebuttable, is legally mandatory.” (Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 354–56.)

The burden then “shifts to the employer to rebut the presumption by producing admissible evidence, sufficient to raise a genuine issue of fact and to justify a judgment for the employer, that its action was taken for a legitimate, nondiscriminatory reason. If the employer sustains this burden, the presumption of discrimination disappears” (Id.)

Where a defendant employer moves for summary judgment, the initial burden rests with the employer to show that no unlawful discrimination occurred. (Guz v. Bechtel Nat’l, Inc. (2000) 24 Cal.4th 317, 354-355; see Jones v. R.J. Donovan Correctional Facility (2007) 152 Cal.App.4th 1367, 1379. “The burdens and order of proof therefore shift under the McDonnell Douglas test when an employer defendant seeks summary judgment. An employer defendant may meet its initial burden on summary judgment, and require the employee plaintiff to present evidence establishing a triable issue of material fact, by presenting evidence that either negates an element of the employee's prima facie case, or establishes a legitimate nondiscriminatory reason for taking the adverse employment action against the employee.” (Swanson v. Morongo Unified School Dist. (2014) 232 Cal.App.4th 954, 966.)

“To avoid summary judgment on the second of these two grounds [legitimate nondiscriminatory reason for adverse action], an employee claiming discrimination must offer substantial evidence that the employer's stated nondiscriminatory reason for the adverse action was untrue or pretextual, or evidence the employer acted with a discriminatory animus, or a combination of the two, such that a reasonable trier of fact could conclude the employer engaged in intentional discrimination.” (Id.)

“The plaintiff must then have the opportunity to attack the employer's proffered reasons as pretexts for discrimination, or to offer any other evidence of discriminatory motive. In an appropriate case, evidence of dishonest reasons, considered together with the elements of the prima facie case, may permit a finding of prohibited bias. The ultimate burden of persuasion on the issue of actual discrimination remains with the plaintiff.” (Guz, supra, 24 Cal.4th at 354-355.)

“[T]he 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. Ca. Dept. of Social Services (1997) 57 Cal.App.4th 997, 1004-1005.) The employee “must demonstrate 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 that the employer did not act for the asserted non-discriminatory reasons.” (Horn v. Cushman & Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 807.)

Defendant WMCI presents a legitimate, nondiscriminatory reason for terminating Plaintiff’s employment

The following discussion mirrors that set forth in the ruling on WMI’s motion for summary judgment. WMCI and WMI assert the same arguments and present the same evidence in support of their position that Plaintiff was discriminated for a legitimate, nondiscriminatory reason.

WMCI submits evidence that Plaintiff was bound by the Collective Bargaining Agreement and that pursuant to the CBA, Plaintiff was subject to “Life Critical Rules.” (WMCI SSUMF No. 28, WMCI’s COE, Ex. E, Pl. Depo, Ex. 5.) WMCI submits evidence that Plaintiff violated Life Critical Rule 6, which prohibits an operator from operating vehicles against traffic and requires the drivers to never zigzag. (Defendant’s SSUMF Nos. 39-47, WMCI’s COE, Ex. E, Pl. Depo., 72:17-22, Ex. 13.) Plaintiff stated at deposition that he placed the roll off bin in a position that violated Defendant’s official rules. (WMCI SSUMF No. 43, WMCI’s COE, Ex. E, Pl. Depo., 74:16-75:1.) Plaintiff also maintained that drivers were told that if the job could be done in a safe manner despite violating the rule, and Defendants agreed to it, the job could be done that way. (Id.)

Defendant WMCI has therefore presented evidence of a legitimate, nondiscriminatory reason for terminating Plaintiff’s employment. The burden therefore shifts to the Plaintiff to raise a triable issue of fact.

Plaintiff submits substantial evidence that the legitimate, nondiscriminatory reason given for his termination was untrue or pretextual

In order to defeat Defendant’s showing of a legitimate, nondiscriminatory reason for terminating Plaintiff, Plaintiff must submit substantial evidence that (1) WMCI’s stated nondiscriminatory reason for terminating him was untrue or pretextual, or (2) evidence WMCI acted with a discriminatory animus, or (3) a combination of the two, such that a reasonable trier of fact could conclude the employer engaged in intentional discrimination. (Swanson, supra, 232 Cal.App.4th at 966.) “It is not sufficient for an employee to make a bare prima facie showing or to simply deny the credibility of the employer's witnesses or to speculate as to discriminatory motive. Rather it is incumbent upon the employee to produce substantial responsive evidence demonstrating the existence of a material triable controversy as to pretext or discriminatory animus on the part of the employer.” (Serri v. Santa Clara University (2014) 226 Cal.App.4^th 830, 862.) Plaintiff submits substantial evidence that the reason given for terminating him was pretextual or false. Plaintiff submits evidence that drivers were instructed to place roll-off bins in the way requested by the client and if a client requested placement in a way that was different from that required under Waste Management rules, drivers were told to get permission from a supervisor or dispatch. (Gallagher Dec. with Compendium of Exhibits, Ex. 12, Gomez Dec., ¶¶4-5; Ex. 23, Artiga Dec., ¶¶6-7; Ex. 24, Salas Dec., ¶5.) Plaintiff submits substantial evidence that the placement of the subject roll-off bin facing opposite the direction of traffic at the location was common practice with the drivers and was with the approval of supervisors and the client. (Gallagher Dec. with Compendium of Exhibits, Ex. 12, Gomez Dec., ¶¶4-5; Ex. 23, Artiga Dec., ¶¶6-7; Ex. 24, Salas Dec., ¶5.)

Plaintiff also submits evidence that the client had requested the bin to be placed against the flow of traffic. Plaintiff relies on the “Corrective Action Report” submitted by Defendant in support of its MSJ and the testimony of Gomez, Artiga and Salas. (Defendant’s Compendium of Exhibits, Ex. E, Pl. Depo, Ex. 13, USAWASTE000297; Gallagher Dec. with Compendium of Exhibits, v. 1, Ex. 12, Gomez Dec., ¶¶4-5; Ex. 23, Artiga Dec., ¶¶6-7; Ex. 24, Salas Dec., ¶5.)

Perhaps the most compelling evidence of pretext is the testimony of Martin Ramirez Salas. Nicholas Moreno was informed of Artiga’s alleged violation of Rule 6 on January 19, 2018. (Defendant’s SSUMF No. 59.) On that same date, Moreno contacted driver Salas to relocate the rolling bin that Artiga had placed against the direction of traffic in violation of Rule 6. (Gallagher Dec. with Compendium of Exhibits, Ex. 24, Salas Dec., ¶5.) Later that same day, Moreno contacted Salas and asked him to move the rolling bin back to the same position Artiga had placed it previously. (Id. at ¶5.)

Plaintiff submits substantial evidence that it was common practice for drivers to place the rolling bin in exactly the position Plaintiff had, that both the client and management had approved placement of the bin in that position despite it violating the rules and that Moreno instructed Ramirez Salas to place the bin back into that exact same position Plaintiff had placed it. Based on this evidence, Plaintiff establishes with substantial evidence that the reason given for his termination—violation of Rule 6 by placing the rolling bin with against the direction of traffic—was false or pretextual.

WMCI argues vociferously that there is no evidence that any comments were made that would indicate any discriminatory animus. However, as discussed in Swanson and Serri, to rebut Defendant’s showing of a legitimate, nondiscriminatory reason for terminating Plaintiff, Plaintiff was only required to submit substantial evidence that the reason given was pretextual or false. Plaintiff was not required to present evidence that WMCI acted with a discriminatory animus, although that was also an option. Defendant WMCI’s motion for summary judgment on grounds that it had a legitimate, nondiscriminatory reason for terminating Plaintiff is denied.

Triable issues of fact remain as to Plaintiff’s cause of action for violation of Labor Code §1102.5

Labor Code §§1102.5 and 1102.6

“An employer, or any person acting on behalf of the employer, shall not retaliate against an employee for disclosing information, or because the employer believes that the employee disclosed or may disclose information,…to a person with authority over the employee or another employee who has the authority to investigate, discover, or correct the violation or noncompliance…if the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation, regardless of whether disclosing the information is part of the employee's job duties.” (Labor Code §1102.5(b).)

“In a civil action or administrative proceeding brought pursuant to Section 1102.5, once it has been demonstrated by a preponderance of the evidence that an activity proscribed by Section 1102.5 was a contributing factor in the alleged prohibited action against the employee, the employer shall have the burden of proof to demonstrate by clear and convincing evidence that the alleged action would have occurred for legitimate, independent reasons even if the employee had not engaged in activities protected by Section 1102.5.” (Labor Code §1102.6.)

“Section 1102.6 provides the governing framework for the presentation and evaluation of whistleblower retaliation claims brought under section 1102.5. First, it places the burden on the plaintiff to establish, by a preponderance of the evidence, that retaliation for an employee's protected activities was a contributing factor in a contested employment action. The plaintiff need not satisfy McDonnell Douglas in order to discharge this burden. Once the plaintiff has made the required showing, the burden shifts to the employer to demonstrate, by clear and convincing evidence, that it would have taken the action in question for legitimate, independent reasons even had the plaintiff not engaged in protected activity.” (Lawson v. PPG Architectural Finishes, Inc. (2022) 12 Cal.5th 703, 718.)

Section 1102.6 “explicitly imposes a higher burden of production, clear and convincing,” on the employer to establish that “it would have taken the action in question for legitimate, independent reasons even had plaintiff not engaged in the protected activity.” (Vataro v. County of Sacramento (2022) 79 Cal.App.5th 367, 379.) “It is not enough…that an employer shows it had a legitimate, nondiscriminatory reason for the adverse employment action. Were that the standard, then an employer could satisfy its burden simply by showing it had one legitimate reason for its action, even if several illegitimate reasons principally motivated its decision. But that is not the applicable standard here. Under section 1102.6, the employer must instead show ‘the alleged action would have occurred for legitimate, independent reasons even if the employee had not engaged in activities protected by Section 1102.5.’” (Id.)

Under Labor Code §1102.6, an employee need not show that the employer’s nonretaliatory reason for the employment action was pretextual. (Lawson, supra, 12 Cal.5th at 715-716.) “Even if the employer had a genuine, nonretaliatory reason for its adverse action, the plaintiff still carries the burden assigned by [Labor Code §1102.6] if it is shown that the employer also had at least one retaliatory reason that was a contributing factor in the action.” (Id.)

An employer satisfies its burden on a defense summary judgment if it presents evidence that would “require a reasonable factfinder to find it highly probable’” that the employment action would have occurred for legitimate, independent reasons even if the employee had not engaged in the protected conduct under Labor Code §1102.5. (Vataro, supra, 79 Cal.App.5th at 386 (employer satisfied its burden on summary judgment of Labor Code §1102.5(b) claim with undisputed evidence that employee had been insubordinate, disrespectful and dishonest, including employee’s own concession that she was “difficult to work with, distant and unwilling to cooperate”)

WMCI fails to negate allegations of whistleblower conduct

WMCI argues Plaintiff’s complaint regarding the number of hours that drivers were forced to work does not rise to the level of whistleblower conduct. WMI argues Plaintiff cannot establish that retaliation played a role in his termination.

WMCI fails to negate Plaintiff’s allegations of whistleblowing. Labor Code §1102.5 applies if the “employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation.” (Labor Code §1102.5(b).) Plaintiff alleges that he complained about safety violations, overworking employees, underpaying employees, denying Plaintiff and others meal and rest breaks and forcing them to work long hours, driving large trucks even when they were fatigued. (FAC, ¶157.) Plaintiff alleges that he reasonably believed these acts violated wage and hour laws, including Labor Code 1198.3, et seq., 1194, et seq., 226.7, 201 and 202, 226 and 117, 6310, et seq, 6311, et seq. (FAC, ¶157.)

As moving party, WMCI fails to satisfy its burden of presenting evidence that Plaintiff reasonably believed these acts constituted a violation of state law. WMCI merely argues that complaints regarding working too many hours is a purely internal personnel matter, not disclosures of potential violations of law. WMCI oversimplifies the FAC’s allegations. Plaintiff allegedly complained about more than long hours. Plaintiff allegedly complained about safety issues, failures to provide meal and rest breaks, underpayment and forcing drivers to drive under dangerous conditions.

WMCI’s reliance on Patten v. Grant Joint Union High School Dist. (2005) 134 Cal.App.4^th 1378 is also misplaced. In Patten, the Court found that two of four disclosures by the plaintiff did not qualify as whistleblowing under Labor Code §1102.5. (Patten, supra, 134 Cal.App.4^th at 1382 and 1385.) Those disclosures involved teachers who allegedly peered into the girls locker room and made off color remarks. However, in Patten, the plaintiff admitted that those two disclosures were merely forwarded to human resources for “personnel action.” (Id. at 1385.) Based on these admissions, plaintiff’s disclosures did not qualify as disclosures of legal violations but reports of an internal personnel matter. (Id.)

Here, Plaintiff alleges that he reported what he reasonably believed to be violations of the law, not merely internal personnel policy. Unlike Patten, there is no evidence undermining Plaintiff’s reasonable belief that safety issues, failures to provide meal and rest breaks, underpayment and forcing drivers to drive long hours under dangerous conditions were violations of the law.

In addition, WMCI argues Plaintiff cannot demonstrate that he was terminated in retaliation for these complaints. However, WMCI is the moving party, not Plaintiff. WMCI was required to establish as the party moving for summary judgment that it would have terminated Plaintiff even absent the alleged whistleblowing. As previously discussed, WMCI demonstrates that there was a legitimate reason for termination but nothing more. Even if this were sufficient under Labor Code §1102.5, Plaintiff has submitted evidence raising a triable issue of fact as to whether the stated reason for termination was false and whether Plaintiff would have been terminated were it not for the alleged whistleblowing conduct.

WMCI fails to establish that Workers’ Compensation Exclusivity bars Plaintiff’s IIED claim

Workers’ Compensation Exclusivity under Labor Code §3602

“Where the conditions of compensation set forth in Section 3600 concur, the right to recover compensation is, except as specifically provided in this section and Sections 3706 and 4558, the sole and exclusive remedy of the employee or his or her dependents against the employer. The fact that either the employee or the employer also occupied another or dual capacity prior to, or at the time of, the employee's industrial injury shall not permit the employee or his or her dependents to bring an action at law for damages against the employer.” (Labor Code §3602.)

Workers’ compensation is the exclusive remedy for a claim based on conduct that occurred in the normal course of the employer-employee relationship. (Miklosy v. Regents of University of California (2008) 44 Cal.4th 876, 902.) A claim for emotional distress based on conduct in the workplace is not subject to Worker’s Compensation Exclusivity under certain circumstances, such as when it is outside the normal relationship or a violation of public policy. (Smith v. International Brotherhood of Electrical Workers (2003) 109 Cal.App.4th 1637, 1658.) Garden variety termination of employment is not outside the normality of an employment relationship without further facts placing it outside the normal relationship. (Shoemaker v. Myers (1990) 52 Cal.3d 1, 25.)

“A number of California authorities have concluded claims for intentional infliction of emotional distress in the employment context may be asserted where the actionable conduct also forms the basis for a FEHA violation.” (Light v. Department of Parks & Recreation (2017) 14 Cal.App.5th 75, 97.) Thus, where the emotional distress results from unlawful discrimination or other misconduct that “exceeds the normal part of the employment relationship” exclusivity does not apply. (Livitsanos v. Sup.Ct. (Continental Culture Specialists, Inc.) (1992) 2 Cal.4th 744, 756 (emotional distress resulting from employer's defamation and harassment); Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 288.) Several cases have held that the exclusivity of workers’ compensation law does not apply to emotional distress caused by workplace discrimination. (Cornell v. Berkeley Tennis Club (2017) 18 Cal.App.5th 908, 946 (plaintiff can pursue IIED claim in employment context where conduct at issue violates FEHA, but finding plaintiff failed to satisfy IIED elements); Light v. California Dept. of Parks & Recreation (2017) 14 Cal.App.5th 75, 101 (emotional distress based on discrimination and retaliation alleged to violate FEHA); Fretland v. County of Humboldt (1999) 69 Cal.App.4th 1478, 1492 (emotional distress resulting from alleged work-related injury discrimination); Murray v. Oceanside Unified School Dist. (2000) 79 Cal.App.4th 1338, 1362 (abrogated on other grounds by Hart v. National Mortg. & Land Co. (1987) 189 Cal.App.3d 1420)(emotional distress allegedly resulting from continuing pattern of workplace harassment based on sexual orientation).)

Here, Plaintiff is alleging emotional distress damages as a result of termination based on age discrimination and whistleblower retaliation. Plaintiff’s emotional distress is therefore not the result of a “garden variety termination.”

WMCI fails to establish that Plaintiff’s IIED claim is barred by Labor Code §3602.

Triable issues of fact remain as to whether Defendant engaged in extreme and outrageous conduct in connection with Plaintiff’s IIED claim

To state an IIED claim, the plaintiff must allege facts showing extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress. (Smith v. BP Lubricants USA Inc. (2021) 64 Cal.App.5th 138, 147 (plaintiff alleged outrageous conduct based on three racially offensive statements made by defendant’s employee before 50 of plaintiff’s coworkers and 3 of his supervisors); Berkley v. Dowds (2007) 152 Cal.App.4th 518, 534 (affirming order sustaining demurrer to IIED cause of action without leave to amend based on failure to allege outrageous conduct).) Whether conduct is outrageous is usually a question of fact but can be determined as an issue of law. (Smith, supra, 64 Cal.App.5th at 147.)

WMCI argues it did not engage in extreme and outrageous conduct, because it terminated Plaintiff for a legitimate, nondiscriminatory, nonretaliatory reason. However, as discussed above, triable issues of fact remain as to whether WMCI terminated Plaintiff because of his age and whether WMCI terminated Plaintiff for complaining about hour, wage, safety and rest break violations. As such, WMCI fails to negate Plaintiff’s allegations of outrageous conduct.

Triable issues of fact remain as to whether WMCI engaged in the alleged outrageous conduct.

Workers’ Compensation Exclusivity bars Plaintiff’s negligent hiring claim

An employee’s claims for negligent supervision, retention and hiring are barred by Workers’ Compensation Exclusivity, even in cases where the employee alleges harassment. (Coit Drapery Cleaners, Inc. v. Sequoia Ins. Co. (1993) 14 Cal.App.5^th 1595, 1606.) However, where the employer ratifies the harassment, the employee may sue the employer for harassment directly and such claim would not be barred by Worker’s Compensation Exclusivity. (Id.)

WMCI argues Plaintiff’s negligent hiring claim is barred by Workers’ Compensation Exclusivity. Plaintiff did not respond to this argument.

No triable issues remain as to the negligent hiring and supervision claim. Defendant WMI’s motion for summary adjudication is granted as to the 6^th cause of action for negligent hiring and supervision.

Triable issues of fact remain as to punitive damages

“In the usual case, the question of whether the defendant's conduct will support an award of punitive damages is for the trier of fact, since the degree of punishment depends on the peculiar circumstances of each case. But the issue may be resolved on summary judgment, giving due regard to the higher proof standard. While the clear and convincing evidentiary standard is a stringent one, it does not impose on a plaintiff the obligation to prove a case for punitive damages at summary judgment. However, where the plaintiff's ultimate burden of proof will be by clear and convincing evidence, the higher standard of proof must be taken into account in ruling on a motion for summary judgment or summary adjudication, since if a plaintiff is to prevail on a claim for punitive damages, it will be necessary that the evidence presented meet the higher evidentiary standard. Summary judgment on the issue of punitive damages is proper only when no reasonable jury could find the plaintiff's evidence to be clear and convincing proof of malice, fraud or oppression.” (Johnson & Johnson v. Superior Court (2011) 192 Cal.App.4th 757, 762; Pacific Gas and Electric Company v. Superior Court (2018) 24 Cal.App.5th 1150, 1158–1159.) The party moving for adjudication of a plaintiff’s punitive damages claim bears the initial burden of production. (CCP §437c(f)(1) and (2); Johnson & Johnson v. Supr. Ct. (2011) 192 Cal.App.4th 757, 761.)

As the moving party seeking adjudication of the punitive damages claim, the initial burden was on the WMCI to negate Plaintiff’s claims of malice, fraud and oppression. (CCP §437c(f)(1) and (2); Johnson & Johnson v. Supr. Ct. (2011) 192 Cal.App.4th 757, 761.) Only if that burden was satisfied would the burden shift to Plaintiff to produce clear and convincing evidence of malice, fraud and oppression. (Mosley v. Pacific Specialty Insurance Company (2020) 49 Cal.App.5th 417, 434–435 (landlord’s failure to address issue of whether they were aware of their tenant’s marijuana growing operation was not grounds to grant summary judgment where moving party failed to satisfy its initial burden as to the issue); Thatcher v. Lucky Stores, Inc. (2000) 79 Cal.App.4th 1081, 1086-1087 (court cannot grant summary judgment based merely on lack of opposition; court must first determine if the moving party has satisfied its burden).)

WMCI’s only argument is that Plaintiff has not presented evidence of fraudulent or oppressive conduct and that he relies entirely on unsubstantiated allegations of age discrimination and retaliation. However, as discussed above, triable issues of fact remain as to whether WMI discriminated against Plaintiff based on age or retaliated against him for complaining about potential legal violations. As such, triable issues of fact remain as to whether WMI engaged in malicious conduct under Civil Code §3294.

WMCI’s motion for summary adjudication of Plaintiff’s punitive damages claim is denied.

WMCI fails to establish that Plaintiff’s claims are preempted under Section 301 of the Labor Management Relations Act

Section 301 of the LMRA states: “Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce ... may be brought in any district court of the United States having jurisdiction of the parties.” 29 U.S.C. § 185(a). “[F]ederal common law preempts the use of state contract law in CBA interpretation and enforcement.” (Kobold v. Good Samaritan Regional Medical Center (9th Cir. 2016) 832 F.3d 1024, 1032.)

Section 301 does not preempt state law claims that do not require construing a collective bargaining agreement. (Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 408 (1988). “Preemption is appropriate… only when the provisions of a collective-bargaining agreement must be interpreted.” (Ramirez v. Fox Television Station, Inc. (9th Cir. 1993) 998 F.2d 743, 748.)

“Critically, not every dispute concerning employment, or tangentially involving a provision of a collective-bargaining agreement, is pre-empted by § 301. Drawing on Supreme Court precedent, this court has articulated a two-step inquiry to analyze § 301 preemption of state law claims. First, a court must determine whether the asserted cause of action involves a right conferred upon an employee by virtue of state law, not by a CBA. If the right exists solely as a result of the CBA, then the claim is preempted, and the analysis ends there…If the court determines that the right underlying the plaintiff's state law claim(s) exists independently of the CBA, it moves to the second step, asking whether the right is nevertheless substantially dependent on analysis of a collective-bargaining agreement.” (Kobold, supra, 832 F.3d at 1032.)

FEHA claims are not preempted by Section 301. “In every case in which we have considered an action brought under the California Employment Act, we have held that it is not preempted by section 301.” (Ramirez v. Fox Television Station, Inc. (1993) 998 F.2d 743,748.) Antidiscrimination statutes, like FEHA, are not preempted by section 301, because the right is defined and enforced under state law without reference to the terms of any collective bargaining agreement. (Chmiel v. Beverly Wilshire Hotel Co. (9th Cir. 1989) 873 F.2d 1283, 1286.)

WMCI fails to establish that resolution of Plaintiff’s claims requires interpretation of the CBA. While Plaintiff was terminated pursuant to Rule 6 and the CBA, there is no dispute as to the terms of the CBA or its interpretation. Plaintiff admits that his conduct violated Rule 6 but he maintains that other drivers were doing the same thing he was fired for doing and they were all doing it at the behest of management. Plaintiff’s claim is that he was terminated due to his age and in retaliation for his complaints regarding working conditions. Resolution of such claims may “reference” the CBA to determine the terms and conditions of employment, but Plaintiff’s underlying claim is that his employers discriminated and retaliated against him in applying or altering those terms and conditions. (Ramirez, supra, 998 F.2d at 748-749 (Section 301 did not preempt plaintiff’s FEHA claims of national origin discrimination, because the claims did not require interpretation of the CBA and were based on discrimination in application of the terms of employment, which included the CBA.) WMI fails to establish that Plaintiff’s remaining claims are preempted by Section 301.

WMCI’s motion for summary judgment based on Section 301 preemption is denied.

Conclusion

WMCI’s Motion for Summary Judgment is DENIED. Triable issues of fact remain as to whether WMCI is liable to Plaintiff based as an alter ego of Plaintiff’s employer and whether Plaintiff was terminated as a result of age discrimination and/or in retaliation for complaining about working conditions that he reasonably believed were legal violations. WMCI fails to establish that Plaintiff’s claims are barred by Section 301 of the LMRA or that IIED is barred by worker’s compensation exclusivity. For these reasons, WMCI also fails to establish as an issue of law that it did not engage in malicious conduct through its managing agents for purposes of Civil Code §3294.

WMCI’s Motion for Summary Adjudication is GRANTED as to the Negligent Hiring and Supervision claim and DENIED as to all other issues and causes of action. Plaintiff’s negligent hiring and supervision claim is barred by Worker’s Compensation Exclusivity.

It is so ordered.

Dated: March 13, 2024

_______________________

Rolf M. Treu

Judge of the Superior Court

Superior Court of California

County of Los Angeles

JOEL ARTIGA,

Plaintiff,

vs.

WASTE MANAGEMENT, ET AL.,

Defendants.

Case No.: 19STCV46508

DEPARTMENT 45

[TENTATIVE] RULING

Action Filed: December 23, 2019

FAC Filed: May 26, 2020

Trial Date: January 13, 2025

Hearing date: March 13, 2024

Moving Party: Defendant Nicholas Moreno.

Responding Party: Plaintiff Joel Artiga

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

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

The Motion for Summary Judgment, or in the alternative Summary Adjudication, is DENIED.

Background

On March 17, 2022, Defendant Moreno filed the instant Motion for Summary Judgment, or in the alternative, Summary Adjudication. Plaintiff did not file any response to Moreno’s Motion for Summary Judgment. Moreno did not file any reply.

Legal Standard

Request for Judicial Notice

No request for judicial notice was submitted.

Evidentiary Objections

No evidentiary objections were asserted.

Discussion

Parties’ Positions

Moreno’s MSJ filed on March 17, 2022

Moreno argues he is only named in the IIED claim. Moreno argues workers’ compensation exclusivity bars IIED claims that are not tethered to a tort cause of action for wrongful termination or wrongful termination in violation of an express statute. Moreno argues he is not named in Plaintiff’s claims for age discrimination, age harassment, wrongful termination and whistleblower retaliation. Morena argues the IIED claim against him therefore fails as a matter of law based on workers’ compensation exclusivity.

Moreno argues there is no evidence that he engaged in extreme or outrageous conduct. Moreno argues there is no evidence that he ever made an inappropriate or offensive remark due to his age. Moreno argues it is undisputed that Moreno never ieven spoke to Plaintiff. Moreno argues Plaintiff was never discriminated against due to his age. Moreno argues his suspension of Plaintiff and his direction to drivers to position their roll-off box as Plaintiff did were merely garden-variety personnel management decisions that cannot form the basis for IIED.

Moreno argues Plaintiff’s IIED claim also fails as a matter of law, because Plaintiff did not suffer severe emotional distress. Moreno argues Plaintiff has never sought treatment for his insomnia or anxiety, nor has he ever been diagnosed with either. Moreno argues Plaintiff’s depression resolved after he began looking for work.

Moreno argues Plaintiff’s IIED claim is barred by worker’s compensation exclusivity, because Plaintiff is alleging injury as a result of acts inherent in the employment relationship. Moreno argues Plaintiff’s termination does not exceed the normal risks in an employment relationship.

Moreno argues Plaintiff’s punitive damages claim must fail. Moreno argues there is no evidence that he ever engaged in fraudulent or oppressive conduct. Moreno argues he merely engaged in ordinary personnel, management decisionmaking. Moreno argues there is no evidence that he was an officer, director or managing agent who had advance knowledge of the alleged malicious, oppressive or fraudulent acts.

Plaintiff’s Opposition

Plaintiff did not file an opposition to Moreno’s Motion for Summary Judgment.

Moreno’s Reply

Moreno did not file a reply.

Moreno fails to establish that Plaintiff’s IIED claim against him is barred by workers’ compensation exclusivity

Workers’ Compensation Exclusivity under Labor Code §3602

“A number of California authorities have concluded claims for intentional infliction of emotional distress in the employment context may be asserted where the actionable conduct also forms the basis for a FEHA violation.” (Light v. Department of Parks & Recreation (2017) 14 Cal.App.5th 75, 97.) Thus, where the emotional distress results from unlawful discrimination or other misconduct that “exceeds the normal part of the employment relationship,” exclusivity does not apply. (Livitsanos v. Sup.Ct. (Continental Culture Specialists, Inc.) (1992) 2 Cal.4th 744, 756 (emotional distress resulting from employer's defamation and harassment); Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 288.) Several cases have held that the exclusivity of workers’ compensation law does not apply to emotional distress caused by workplace discrimination. (Cornell v. Berkeley Tennis Club (2017) 18 Cal.App.5th 908, 946 (plaintiff can pursue IIED claim in employment context where conduct at issue violates FEHA, but finding plaintiff failed to satisfy IIED elements); Light v. California Dept. of Parks & Recreation (2017) 14 Cal.App.5th 75, 101 (emotional distress based on discrimination and retaliation alleged to violate FEHA); Fretland v. County of Humboldt (1999) 69 Cal.App.4th 1478, 1492 (emotional distress resulting from alleged work-related injury discrimination); Murray v. Oceanside Unified School Dist. (2000) 79 Cal.App.4th 1338, 1362 (abrogated on other grounds by Hart v. National Mortg. & Land Co. (1987) 189 Cal.App.3d 1420)(emotional distress allegedly resulting from continuing pattern of workplace harassment based on sexual orientation).)

Plaintiff’s IIED claim is not based on alleged discriminatory and retaliatory termination, not a garden-variety termination

As discussed in connection with the Motions for Summary Judgment of WMI, WMCI and USA Waste, Plaintiff is alleging emotional distress damages as a result of termination based on age discrimination and whistleblower retaliation. Plaintiff’s emotional distress is therefore not the result of a “garden variety termination.”

Moreno analogizes Plaintiff’s IIED claim to the facts of Cole v. Fair Oaks Fire Protection Dist. (1987) 43 Cal.3d 148. Moreno entirely ignores the crucial difference between the allegations of IIED in Cole and those alleged here—Cole did not involve any allegations of discrimination, retaliation or wrongful termination in violation of public policy. (Cole, supra, 43 Cal.3d at 152-154.) Here, Plaintiff is alleging that Defendants, including Moreno, terminated him due to his age and in retaliation for complaining about working conditions he believed violated the law. As stated above, there is a plethora of California authority holding that emotional distress flowing from FEHA violations or wrongful termination in violation of public policy are not subject to worker’s compensation exclusivity, because “[n]either discrimination nor harassment is a normal incident of employment.” (Nazir, supra, 178 Cal.App.4^th at 288.)

Moreno argues worker’s compensation exclusivity applies, because he is not named in the underlying FEHA discrimination, retaliation or wrongful termination causes of action. Moreno argues the IIED claim against him is therefore not tied to an underlying tort for wrongful termination or statutory claim for wrongful termination.

Moreno cites Phillips v. Gemini Moving Specialists (1998) 63 Cal.App.4^th 563, 577 for the proposition that Plaintiff’s FEHA claims must be asserted against him personally in order for Plaintiff to avoid worker’s compensation exclusivity as to her IIED claim against him. Phillips predates Miklosy, supra, 44 Cal.4^th at 902-303, which held that the exception to the worker’s compensation preemption based on contravention of a fundamental public policy only applied where a cause of action is “not dependent upon the violation of an express statute or violation of fundamental public policy.” Again, Plaintiff’s claim satisfies the exception to worker’s compensation preemption articulated in Miklosy. Plaintiff’s IIED claim is based on discrimination and retaliation in violation of FEHA that falls outside the normal course of the employer-employee relationship.

Plaintiff’s case is also distinguishable from Yau v. Santa Margarita Ford, Inc. (2014) 229 Cal.App.4^th 144. In Yau, plaintiff’s IIED claim against individual coworkers based on intimidation and harassment that occurred at the worksite was properly dismissed based on workers’ compensation exclusivity. (Yau, supra, 229 Cal.App.4^th at 161-162.) The IIED claim in Yau was (1) asserted only against the individual employees; and (2) was not based on conduct that also formed the basis of FEHA claims or that constituted discrimination. (Id.)

Here, Plaintiff has alleged the IIED claim against the employer Defendants and Moreno. The IIED claim is therefore tethered to FEHA claims of discrimination, as well as claims of whistleblower retaliation. Most importantly, the outrageous conduct alleged against Moreno is the alleged discriminatory conduct that forms the basis of Plaintiff’s FEHA claims—allegedly singling him out for investigation, discipline and suspension based on conduct that was allegedly widespread, standard and approved of by management due to his age, which ultimately led to his termination. Moreno fails to cite any authority holding that Plaintiff’s FEHA claims must be alleged against him personally to avoid worker’s compensation exclusivity where the outrageous conduct alleged against him in the IIED claim is the same conduct that forms the basis of Plaintiff’s FEHA claims.

Defendant Moreno fails to establish that the IIED cause of action against him is barred by worker’s compensation exclusivity. Moreno’s motion for summary judgment based on worker’s compensation exclusivity is denied.

Moreno fails to negate Plaintiff’s allegation of outrageous conduct against him

Moreno moves for summary judgment on grounds that Plaintiff has no evidence of any outrageous conduct, i.e. that Moreno discriminated against him based on his age or retaliated against him based on his complaints regarding working conditions. A defendant may satisfy its burden as moving party 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.) A defendant does not meet its burden under CCP §437(c)(o)(1) by merely “pointing out” or “arguing” that the plaintiff does not possess or cannot reasonably obtain necessary evidence. (Id.; Lona v. Citibank, N.A. (2011) 202 Cal.App.4th 89 (defendant bank did not meet its burden on summary judgment of wrongful foreclosure by merely arguing that plaintiff lacked evidence to support her claim and only documentary evidence submitted were the loan documents); Gaggero v. Yura (2003) 108 Cal.App.4th 884, 890 (defendant did not establish plaintiff’s lack of evidence or inability to reasonably obtain evidence of plaintiff’s ability and willingness to perform by pointing to plaintiff’s refusal to answer certain questions during deposition on grounds of a meritless privacy objection; such a refusal, regardless of its merit, was neither an admission nor a factually devoid discovery response).)

Moreno fails to establish that Plaintiff cannot establish the outrageous conduct element of his claim due to lack of evidence. Merely submitting evidence that Plaintiff was terminated for actually violating the company’s policy does not address Plaintiff’s full allegations. (Moreno’s SSUMF No. 18-30.) Plaintiff’s FAC alleges that he was fired for placing the roll-out bin in a manner that violated company policy but that the decision to fire was a pretext for age discrimination, given that supervisors told him to place the bin in that way, the client asked that it be placed that way and other drivers placed the bin that way for those reasons. (FAC, ¶¶17-18.) Moreno’s evidence in no way addresses Plaintiff’s allegations of circumstantial evidence that the reason for Moreno’s investigation, Plaintiff’s suspension and Plaintiff’s ultimate termination was a pretext for age discrimination and retaliation. For the same reason, the absence of inappropriate or offensive age discriminatory comments (Moreno SSUMF No. 8) does not negate Plaintiff’s FAC allegations, nor does it establish Plaintiff’s inability to present or obtain direct or circumstantial evidence of age discrimination or retaliation.

In addition, as stated above, Plaintiff’s termination based on the FAC was not a garden-variety, personnel management decision. Plaintiff is alleging that the termination was motivated by age discrimination and whistleblower retaliation.

Defendant Moreno fails to negate Plaintiff’s allegations of outrageous conduct. The burden therefore never shifted to Plaintiff to file an opposition and raise a triable issue of material fact.

Triable issues of fact remain as to whether Plaintiff suffered severe emotional distress

“With respect to the requirement that the plaintiff show severe emotional distress, this court has set a high bar. Severe emotional distress means emotional distress of such substantial quality or enduring quality that no reasonable person in civilized society should be expected to endure it.” (Hughes v. Pair (2009) 46 Cal.4^th 1035, 1051 (defendant’s inappropriate comments fell “far short” of conduct so outrageous that ti exceeds all bounds of that usually tolerated in a civilized community and plaintiff’s assertion that she suffered “discomfort, worry, anxiety, upset stomach, concern, and agitation as a the result of defendant’s comment to her on the telephone and at the museum…do not compromise emotional distress of such substantial quality enduring quality that no reasonable person in civilized society should be expected to endure it.”)

“Severe means substantial or enduring as distinguished from trivial or transitory. Severe emotional distress means, then, emotional distress of such substantial quantity or enduring quality that no reasonable man in a civilized society should be expected to endure it. It is for the court to determine whether on the evidence severe emotional distress can be found; it is for the jury to determine whether, on the evidence, it has in fact existed.” (Fletcher v. Western National Life Ins. Co. (1970) 10 Cal.App.3d 376, 397; Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 1004.) A plaintiff, however, may recover for emotional distress alone without any resulting physical disability. (Fletcher, supra, 10 Cal.App.3d at 396.)

Severe emotional distress has been found where a plaintiff suffered problems of “alcoholism, severe headaches, insomnia, tension and anxiety” in responses to outrageous conduct. (Sanchez-Corea v. Bank of America (1985) 38 Cal.3d 892, 909.) Severe emotional distress has also been found where a plaintiff suffered vomiting, stomach cramps and diarrhea due to the defendant’s outrageous conduct. (Hailey v. California Physicians’ Service (2007) 158 Cal.App.4^th 452, 477.)

According to Moreno, although Plaintiff claims he suffered insomnia, anxiety and depression, Plaintiff did not suffer severe emotional distress, because (1) no medical professional ever diagnosed him with insomnia (Defendant’s SSUMF NO. 34; Defendant’s COE, Ex. E, Pl.’s Depo., 113:14-21; 114-16-115:8); (2) he never sought medical treatment for anxiety or depression (Defendant’s SSUMF No. 35; Defendant’s COE, Ex. E, Pl.’s Depo., 117:11-13; 120:20-23); and (3) the depression resolved after he began looking for work (Defendant’s SSUMF No. 36; Defendant’s COE, Ex. E, Pl.’s Depo., 119:1-3.)

Moreno’s evidence fails to negate Plaintiff’s allegations of severe emotional distress. At deposition, Plaintiff testified that for approximately a year and a half after he was terminated, he suffered disturbed sleep, “waking up during the night” (Defendant’s COE, Ex. E, Pl.’s Depo., 113:12-13.) Prior to the incident he slept eight hours a night, but after the incident, he “was constantly waking up throughout the night.” (Id. at 115:21-22.) Plaintiff testified that it was “very difficult for me. Because to lose a job, especially in that way after 20 years, that’s not something you forget.” (Id. at 117:1-3.) Plaintiff testified that for that reason, he still suffers from anxiety due to his termination to this day. (Id. at 117:4-7.) Plaintiff’s full testimony regarding his depression was that “after some time when I started looking for work, I could say things sort of normalized, but at the same time, I still feel it a bit. Because like I’ve said, that’s not something you can easily forget.” (Id. at 119:1-6.)

Moreno fails to establish as an issue of law that Plaintiff did not suffer severe emotional distress from the alleged wrongful termination. The mere fact that Plaintiff was not formally diagnosed with insomnia by a medical professional does not change Plaintiff’s direct testimony that he could not sleep after being wrongfully terminated after 20 years of employment and was “constantly waking up at night” for at least a year and a half after being fired. Likewise, Moreno fails to cite any authority that Plaintiff’s failure to seek medical attention for depression and anxiety establishes as an issue of law that his emotional distress was not severe or that he did not actually suffer depression and anxiety due to the wrongful termination.

Finally, Hughes is distinguishable. In Hughes, the court found on summary judgment that the alleged conduct was not outrageous for purposes of IIED as an issue of law. Here, the Court makes no such finding. Triable issues of fact remain as to whether the alleged conduct was outrageous.

Moreno fails to establish that severe emotional distress cannot be bound based on the evidence submitted in support of the summary judgment. Based on the Plaintiff’s testimony, he could not stop thinking about his wrongful termination and was constantly waking up in the middle of the night for at least a year and a half after he was terminated. Plaintiff also stated he was depressed and anxious due to the termination, was constantly thinking about it and still thinks about it to this day.

Triable issues of fact remain as to whether Plaintiff suffered severe emotional distress. Moreno’s motion for summary judgment on grounds that Plaintiff did not suffer severe emotional distress is denied.

Triable issues of fact remain as to punitive damages

As the moving party seeking adjudication of the punitive damages claim, the initial burden was on the USA Waste to negate Plaintiff’s claims of malice, fraud and oppression. (CCP §437c(f)(1) and (2); Johnson & Johnson v. Supr. Ct. (2011) 192 Cal.App.4th 757, 761.) Only if that burden was satisfied would the burden shift to Plaintiff to produce clear and convincing evidence of malice, fraud and oppression. (Mosley v. Pacific Specialty Insurance Company (2020) 49 Cal.App.5th 417, 434–435 (landlord’s failure to address issue of whether they were aware of their tenant’s marijuana growing operation was not grounds to grant summary judgment where moving party failed to satisfy its initial burden as to the issue); Thatcher v. Lucky Stores, Inc. (2000) 79 Cal.App.4th 1081, 1086-1087 (court cannot grant summary judgment based merely on lack of opposition; court must first determine if the moving party has satisfied its burden).)

Moreno’s only argument is that Plaintiff has not presented evidence of fraudulent or oppressive conduct and that he relies entirely on unsubstantiated allegations of age discrimination and retaliation. However, as discussed above, triable issues of fact remain as to whether Moreno investigated and suspended Plaintiff based on age discrimination and whistleblower retaliation. The conduct alleged was not garden-variety personnel management decisions. Moreno also personally engaged in the alleged outrageous conduct and questions of ratification and authorization are irrelevant to hold him liable for punitive damages, although he was a Manager acting on behalf of USA Waste at all relevant times. (Moreno’s SSUMF No. 4.) As such, triable issues of fact remain as to whether USA Waste engaged in malicious conduct under Civil Code §3294.

Moreno’s motion for summary adjudication of Plaintiff’s punitive damages claim is denied.

Conclusion

Moreno’s Motion for Summary Judgment is DENIED. Triable issues of fact remain as to whether Moreno’s conduct towards Plaintiff was outrageous conduct for purposes of IIED. Moreno fails to establish that IIED is barred by worker’s compensation exclusivity. For these reasons, Moreno also fails to establish as an issue of law that he did not engage in malicious conduct of Civil Code §3294.

It is so ordered.

Dated: March 13, 2024

_______________________

Rolf M. Treu

Judge of the Superior Court

Superior Court of California

County of Los Angeles

JOEL ARTIGA,

Plaintiff,

vs.

WASTE MANAGEMENT, ET AL.,

Defendants.

Case No.: 19STCV46508

DEPARTMENT 45

[TENTATIVE] RULING

Action Filed: December 23, 2019

FAC Filed: May 26, 2020

Trial Date: January 13, 2025

Hearing date: March 13, 2024

Moving Party: Defendant USA Waste of California, Inc. (erroneously sued as USA Waste Management of California)(“USA Waste”)

Responding Party: Plaintiff Joel Artiga

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

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

Background

On March 17, 2022, Defendant USA Waste filed the instant Motion for Summary Judgment, or in the alternative, Summary Adjudication. On November 7, 2023, Plaintiff filed an opposition to USA Waste’s Motion for Summary Judgment. On November 13, 2023, Defendant USA Waste filed a reply.

Legal Standard

Request for Judicial Notice

Evidentiary Objections

USA Waste’s Objection Nos. 1-5, 7 to Gallagher Declaration are OVERRULED. The Court declines to rule on Objection Nos. 6 and 8 pursuant to CCP §437c(q) as immaterial to the ruling.

USA Waste’s Objections to the Gomez Declaration are OVERRULED.

USA Waste’s Objections to the Ramirez Declaration are OVERRULED.

USA Waste’s Objections to the Artiga Declaration are OVERRULED.

Discussion

Parties’ Positions

USA Waste’s MSJ filed on March 17, 2022

USA Waste’s arguments mirror those asserted by WMI in its Motion for Summary Judgment. The only distinction between the two briefs is as to employer status. USA Waste Management does not deny that it was Plaintiff’s employer.

USA Waste argues Plaintiff’s claims are all preempted by Section 301 of the Labor Management Relations Act (“LMRA”). USA Waste argues resolution of Plaintiff’s claims requires the Court to interpret the Collective Bargaining Agreement (“CBA”) between Plaintiff’s union and Plaintiff’s employer. USA Waste argues the CBA governed the terms and conditions of Plaintiff’s employment, including the procedure and grounds for termination and discipline. USA Waste argues Plaintiff’s complaint challenges the legitimacy of USA Waste’s interpretation and application of the CBA to terminate and discipline Plaintiff. USA Waste argues the Supreme Court has held that Section 301 preempts state law claims under these circumstances.

USA Waste argues Plaintiff also cannot satisfy his burden to establish that his termination was based on his age. USA Waste argues Plaintiff has provided no evidence that his age had anything to do with his termination. USA Waste argues Plaintiff admits that the basis for his termination was his violation of Life Critical Rule No. 6. USA Waste argues if Plaintiff claims this reason for his termination was pretextual, Plaintiff will be unable to provide evidence corroborating his claim of pretext. USA Waste argues the only comment identified by Plaintiff as being evidence of pretext did not make any reference to his age and was a single, isolated comment.

USA Waste argues Plaintiff’s Labor Code §1102.5 claim fails, because Plaintiff never engaged in any whistleblower conduct. USA Waste argues Plaintiff’s complaints about the long hours were not disclosures of potential violations of law but purely internal personnel matters. USA Waste argues Plaintiff also cannot establish that any of his alleged complaints or statements were the basis for his termination. USA Waste argues the evidence establishes that Plaintiff was legitimately terminated for violating a rule that was grounds for immediate termination. USA Waste argues Plaintiff also made his complaints about hours to Carmen Munoz, who was not the decisionmaker who terminated Plaintiff.

USA Waste argues Plaintiff’s IIED claim is barred by worker’s compensation exclusivity. USA Waste argues Plaintiff’s allegations also do not qualify as extreme or outrageous conduct. USA Waste argues Plaintiff’s allegations only establish that WMI engaged in ordinary managerial conduct.

USA Waste argues Plaintiff’s negligent hiring, supervision and retention claim fails as an issue of law because it is barred by worker’s compensation exclusivity. USA Waste argues the negligence claim also fails, because Plaintiff concedes that he never complained about Bravo or Moreno during his employment. USA Waste argues it never had notice of any unfitness of its alleged employees, an essential element of the negligent hiring, et al. claim.

USA Waste argues Plaintiff’s claims for failure to prevent harassment and discrimination and wrongful termination fail, because there was no underlying harassment, discrimination or wrongful termination. USA Waste argues Plaintiff will be unable to establish that his termination for failing to properly position the roll-off box was pretextual.

Finally, USA Waste argues Plaintiff’s claim for punitive damages fails. USA Waste argues Plaintiff has not alleged, attested to or otherwise shown that USA Waste engaged in fraud, oppression or malice. USA Waste argues Plaintiff also cannot demonstrate that an officer, director or managing agent of Defendant had advance knowledge of the alleged wrongful acts or approved or ratified such conduct.

Plaintiff’s Opposition filed on November 7, 2023

Plaintiff’s opposition to USA Waste Management’s Motion for Summary Judgment is identical to that submitted to the Motions for Summary Judgment of WMI and WMCI. As such, Plaintiff’s opposition includes the argument that USA Waste is the “joint employer of Plaintiff and/or Joint Employer/Agent or Alter Ego of USA Waste.” (Oppositoin filed on November 7, 2023, 7:24-26.) Because USA Waste does not dispute employer status, Plaintiff’s arguments regarding USA Waste’s status as an employer/agent/alter ego are omitted here.

Plaintiff argues USA Waste fails to establish that the FEHA claims are barred and preempted by Section 301 of the Labor Management Relation Act. Plaintiff argues the mere fact that the CBA might provide a remedy or a duty related to a situation is insufficient to establish preemption. Plaintiff argues the Ninth Circuit has established that antidiscrimination statutes are not preempted by Section 301, because the right at issue is defined and enforced under state law. Plaintiff argues determining whether Defendants' reasons for termination were pretextual does not require interpretation of the CBA and only involves a factual question.

USA Waste’s Reply filed on November 16, 2023

USA Waste argues there is no genuine dispute as to the basis for Plaintiff’s termination, which was his violation of Life Critical Rule 6. USA Waste argues Plaintiff does not deny that he violated Rule 6. USA Waste argues Plaintiff fails to present any evidence from which a trier of fact could infer that this was a pretext for age discrimination. USA Waste argues the violation did not require progressive discipline under the CBA, nor does Plaintiff present any evidence or argument that the persons who made the decision to terminate him, Dory and Kato, had any discriminatory animus.

USA Waste argues the claims will also require the Court to interpret the CBA. USA Waste argues the claims are therefore preempted by Section 301 of the Labor Management Relations Act.

USA Waste argues the IIED claim is also subject to workers’ compensation exclusivity. USA Waste argues the IIED claim is based on conduct that occurred at the worksite in the normal course of the employer-employee relationship, i.e. the decision to terminate Plaintiff.

USA Waste argues the punitive damages claim likewise fails. USA Waste argues the evidence establishes that it took no actions that could justify punitive damages. USA Waste argues it did not even participate in the decision to terminate Plaintiff, nor did it hire him or in any way participate in any investigation or termination of his employment.

Triable issues of fact remain as to whether Defendants terminated Plaintiff for a legitimate, nondiscriminatory reason

McDonnell Douglas Test and burdens on summary judgment of FEHA discrimination claims

Defendant USA Waste presents a legitimate, nondiscriminatory reason for terminating Plaintiff’s employment

USA Waste submits evidence that Plaintiff was bound by the Collective Bargaining Agreement and that pursuant to the CBA, Plaintiff was subject to “Life Critical Rules.” (USA Waste’s SSUMF No. 19, Defendant’s COE, Ex. E, Pl. Depo, Ex. 5.) USA Waste submits evidence that Plaintiff violated Life Critical Rule 6, which prohibits an operator from operating vehicles against traffic and requires the drivers to never zigzag. (Defendant’s SSUMF Nos. 24-38, Defendant’s COE, Ex. E, Pl. Depo., 72:17-22, Ex. 13.) Plaintiff stated at deposition that he placed the roll off bin in a position that violated Defendant’s official rules. (Defendant’s SSUMF Nos. 33-34, Defendant’s COE, Ex. E, Pl. Depo., 72:17-22, 74:16-75:1.) Plaintiff also maintained that drivers were told that if the job could be done in a safe manner despite violating the rule, and Defendants agreed to it, the job could be done that way. (Id.)

Defendant USA Management has therefore presented evidence of a legitimate, nondiscriminatory reason for terminating Plaintiff’s employment. The burden therefore shifts to the Plaintiff to raise a triable issue of fact.

Plaintiff submits substantial evidence that the legitimate, nondiscriminatory reason given for his termination was untrue or pretextual

In order to defeat Defendant’s showing of a legitimate, nondiscriminatory reason for terminating Plaintiff, Plaintiff must submit substantial evidence that (1) USA Management’s stated nondiscriminatory reason for terminating him was untrue or pretextual, or (2) evidence USA Management acted with a discriminatory animus, or (3) a combination of the two, such that a reasonable trier of fact could conclude the employer engaged in intentional discrimination. (Swanson, supra, 232 Cal.App.4th at 966.) “It is not sufficient for an employee to make a bare prima facie showing or to simply deny the credibility of the employer's witnesses or to speculate as to discriminatory motive. Rather it is incumbent upon the employee to produce substantial responsive evidence demonstrating the existence of a material triable controversy as to pretext or discriminatory animus on the part of the employer.” (Serri v. Santa Clara University (2014) 226 Cal.App.4^th 830, 862.)

Plaintiff submits substantial evidence that the reason given for terminating him was pretextual or false. Plaintiff submits evidence that drivers were instructed to place roll-off bins in the way requested by the client and if a client requested placement in a way that was different from that required under Waste Management rules, drivers were told to get permission from a supervisor or dispatch. (Gallagher Dec. with Compendium of Exhibits, Ex. 12, Gomez Dec., ¶¶4-5; Ex. 23, Artiga Dec., ¶¶6-7; Ex. 24, Salas Dec., ¶5.) Plaintiff submits substantial evidence that the placement of the subject roll-off bin facing opposite the direction of traffic at the location was common practice with the drivers and was with the approval of supervisors and the client. (Gallagher Dec. with Compendium of Exhibits, Ex. 12, Gomez Dec., ¶¶4-5; Ex. 23, Artiga Dec., ¶¶6-7; Ex. 24, Salas Dec., ¶5.)

WMI argues vociferously that there is no evidence that any comments were made that would indicate any discriminatory animus. However, as discussed in Swanson and Serri, to rebut Defendant’s showing of a legitimate, nondiscriminatory reason for terminating Plaintiff, Plaintiff was only required to submit substantial evidence that the reason given was pretextual or false. Plaintiff was not required to present evidence that WMI acted with a discriminatory animus, although that was also an option. Defendant WMI’s motion for summary judgment on grounds that it had a legitimate, nondiscriminatory reason for terminating Plaintiff is denied.

Triable issues of fact remain as to Plaintiff’s cause of action for violation of Labor Code §1102.5

Labor Code §§1102.5 and 1102.6

USA Waste fails to negate allegations of whistleblower conduct

USA Waste argues Plaintiff’s complaint regarding the number of hours that drivers were forced to work does not rise to the level of whistleblower conduct. USA Waste argues Plaintiff cannot establish that retaliation played a role in his termination.

USA Waste fails to negate Plaintiff’s allegations of whistleblowing. Labor Code §1102.5 applies if the “employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation.” (Labor Code §1102.5(b).) Plaintiff alleges that he complained about safety violations, overworking employees, underpaying employees, denying Plaintiff and others meal and rest breaks and forcing them to work long hours, driving large trucks even when they were fatigued. (FAC, ¶157.) Plaintiff alleges that he reasonably believed these acts violated wage and hour laws, including Labor Code 1198.3, et seq., 1194, et seq., 226.7, 201 and 202, 226 and 117, 6310, et seq, 6311, et seq. (FAC, ¶157.)

As moving party, USA Waste fails to satisfy its burden of presenting evidence that Plaintiff reasonably believed these acts constituted a violation of state law. USA Waste merely argues that complaints regarding working too many hours is a purely internal personnel matter, not disclosures of potential violations of law. USA Waste oversimplifies the FAC’s allegations. Plaintiff allegedly complained about more than long hours. Plaintiff allegedly complained about safety issues, failures to provide meal and rest breaks, underpayment and forcing drivers to drive under dangerous conditions.

USA Waste’s reliance on Patten v. Grant Joint Union High School Dist. (2005) 134 Cal.App.4^th 1378 is also misplaced. In Patten, the Court found that two of four disclosures by the plaintiff did not qualify as whistleblowing under Labor Code §1102.5. (Patten, supra, 134 Cal.App.4^th at 1382 and 1385.) Those disclosures involved teachers who allegedly peered into the girls locker room and made off color remarks. However, in Patten, the plaintiff admitted that those two disclosures were merely forwarded to human resources for “personnel action.” (Id. at 1385.) Based on these admissions, plaintiff’s disclosures did not qualify as disclosures of legal violations but reports of an internal personnel matter. (Id.)

In addition, USA Waste argues Plaintiff cannot demonstrate that he was terminated in retaliation for these complaints. However, USA Waste is the moving party, not Plaintiff. USA Waste was required to establish as the party moving for summary judgment that it would have terminated Plaintiff even absent the alleged whistleblowing. As previously discussed, USA Waste demonstrates that there was a legitimate reason for termination but nothing more. Even if this were sufficient under Labor Code §1102.5, Plaintiff has submitted evidence raising a triable issue of fact as to whether the stated reason for termination was false and whether Plaintiff would have been terminated were it not for the alleged whistleblowing conduct.

USA Waste fails to establish that Workers’ Compensation Exclusivity bars Plaintiff’s IIED claim

Workers’ Compensation Exclusivity under Labor Code §3602

USA Waste fails to establish that Plaintiff’s IIED claim is barred by Labor Code §3602.

Triable issues of fact remain as to whether Defendant engaged in extreme and outrageous conduct in connection with Plaintiff’s IIED claim

USA Waste argues it did not engage in extreme and outrageous conduct, because it terminated Plaintiff for a legitimate, nondiscriminatory, nonretaliatory reason. However, as discussed above, triable issues of fact remain as to whether USA Waste terminated Plaintiff because of his age and whether USA Waste terminated Plaintiff for complaining about hour, wage, safety and rest break violations. As such, USA Waste fails to negate Plaintiff’s allegations of outrageous conduct.

Triable issues of fact remain as to whether USA Waste engaged in the alleged outrageous conduct.

Workers’ Compensation Exclusivity bars Plaintiff’s negligent hiring claim

USA Waste argues Plaintiff’s negligent hiring claim is barred by Workers’ Compensation Exclusivity. Plaintiff did not respond to this argument.

No triable issues remain as to the negligent hiring and supervision claim. Defendant USA Waste’s motion for summary adjudication is granted as to the 6^th cause of action for negligent hiring and supervision.

Triable issues of fact remain as to punitive damages

USA Waste’s only argument is that Plaintiff has not presented evidence of fraudulent or oppressive conduct and that he relies entirely on unsubstantiated allegations of age discrimination and retaliation. However, as discussed above, triable issues of fact remain as to whether USA Waste discriminated against Plaintiff based on age or retaliated against him for complaining about potential legal violations. As such, triable issues of fact remain as to whether USA Waste engaged in malicious conduct under Civil Code §3294.

USA Waste’s motion for summary adjudication of Plaintiff’s punitive damages claim is denied.

USA Waste fails to establish that Plaintiff’s claims are preempted under Section 301 of the Labor Management Relations Act

USA Waste fails to establish that resolution of Plaintiff’s claims requires interpretation of the CBA. While Plaintiff was terminated pursuant to Rule 6 and the CBA, there is no dispute as to the terms of the CBA or its interpretation. Plaintiff admits that his conduct violated Rule 6 but he maintains that other drivers were doing the same thing he was fired for doing and they were all doing it at the behest of management. Plaintiff’s claim is that he was terminated due to his age and in retaliation for his complaints regarding working conditions. Resolution of such claims may “reference” the CBA to determine the terms and conditions of employment, but Plaintiff’s underlying claim is that his employers discriminated and retaliated against him in applying or altering those terms and conditions. (Ramirez, supra, 998 F.2d at 748-749 (Section 301 did not preempt plaintiff’s FEHA claims of national origin discrimination, because the claims did not require interpretation of the CBA and were based on discrimination in application of the terms of employment, which included the CBA.) USA Waste fails to establish that Plaintiff’s remaining claims are preempted by Section 301.

USA Waste’s motion for summary judgment based on Section 301 preemption is denied.

Conclusion

USA Waste’s Motion for Summary Judgment is DENIED. Triable issues of fact remain as whether Plaintiff was terminated as a result of age discrimination and/or in retaliation for complaining about working conditions that he reasonably believed were legal violations. USA Waste fails to establish that Plaintiff’s claims are barred by Section 301 of the LMRA or that IIED is barred by worker’s compensation exclusivity. For these reasons, USA Waste also fails to establish as an issue of law that it did not engage in malicious conduct through its managing agents for purposes of Civil Code §3294.

USA Waste’s Motion for Summary Adjudication is GRANTED as to the Negligent Hiring and Supervision claim and DENIED as to all other issues and causes of action. Plaintiff’s negligent hiring and supervision claim is barred by Worker’s Compensation Exclusivity.

It is so ordered.

Dated: March 13, 2024

_______________________

Rolf M. Treu

Judge of the Superior Court

Superior Court of
California

County
of Los Angeles

JOEL
ARTIGA,

Plaintiff,

vs.

WASTE
MANAGEMENT, ET AL.,

Defendants.

Case No.: 19STCV46508

DEPARTMENT
45

[TENTATIVE] RULING

Action
Filed: December 23, 2019

FAC
Filed: May 26, 2020

Trial
Date: January 13, 2025

Hearing
date: March
13, 2024

Moving
Party: Defendant
Waste Management, Inc.

Responding
Party: Plaintiff
Joel Artiga

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

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

The
Motion for Summary Judgment is DENIED.
The Motion for Summary Adjudication is GRANTED as to the 6^th
cause of action for negligent hiring and supervision. The Motion for Summary Adjudication is DENIED
as to all other remaining causes of action and issues, including punitive
damages.

Background

Plaintiff
worked for Defendants in the LA Dumpster Rental location for over 20
years. Plaintiff was suspended in
January 2018 for failing to properly position a dumpster container at a
construction site, despite the fact that every single driver who worked for
Defendants positioned the dumpster container in the exact same way. Plaintiff alleges supervisors also directed
and permitted drivers to position the dumpster in this way. After his supervisor, Defendant Nicholas
Moreno, staged the container in the same position in violation of company
policy, he informed Plaintiff’s direct supervisor and unjustly placed blame on
Plaintiff. As a result, Defendants
discriminated, harassed and retaliated against Plaintiff. Plaintiff was ultimately terminated.

Plaintiff
alleges he was discriminated against and terminated due to his age, which was
52 years at the time of the relevant events.
Plaintiff alleges Defendants stated multiple times that they wanted to
replace older employees like Plaintiff with younger, cheaper employees.

On
December 23, 2019, Plaintiff filed this action against Defendants Waste
Management, Waste Management of California Inc. (“WMCI”), USA Waste Management
of California (“USA Waste”), A Waste Management Company and Nicholas
Moreno. On May 26, 2020, Plaintiff filed
the operative First Amended Complaint against these same Defendants alleging
(1) age discrimination; (2) harassment based on age; (3) failure to prevent
harassment and discrimination; (4) wrongful termination in violation of public
policy; (5) violation of Labor Code §1102.5; (6) negligent hiring and
supervision; and (7) IIED.

On
March 17, 2022, Defendant Waste Management, Inc. (erroneously sued as Waste
Management)(“WMI”) filed the instant Motion for Summary Judgment, or in the
alternative, Summary Adjudication. On November
18 and 21, 2022, Plaintiff filed opposition documents to WMI’s MSJ. On November 23, 2022, WMI filed a reply. The opposition and reply briefs filed in
November 2022 were superseded by Plaintiff’s opposition brief filed on November
7, 2023 and WMI’s reply brief filed on November 16, 2023.

Legal
Standard

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 of Civil Procedure §437c(c).) From commencement to
conclusion, the party moving for summary judgment bears the burden of
persuasion that there is no triable issue of material fact and that he is
entitled to a judgment as a matter of law. There is a triable issue of material
fact if, and only if, the evidence would allow a reasonable trier of fact to
find the underlying fact in favor of the party opposing the motion in
accordance with the applicable standard of proof. (Aguilar v. Atlantic Richfield Company
(2001) 25 Cal.4th 826, 855.)

Pursuant
to Code of Civil Procedure §437c(f)(1), a party may properly seek summary
adjudication of one or more causes of action, one or more affirmative defenses,
the issue of punitive damages or the issue of duty. (Code of Civil Procedure §437c(f)(1).) “A
motion for summary adjudication shall be granted only if it completely disposes
of a cause of action, an affirmative defense, a claim of damages or an issue of
duty.” (Id.)

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.” (Code of Civil Procedure
§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 plaintiff to show that a
“triable issue of one or more material facts exists as to that cause of action
or defense thereto.” (Id.)

“A
party is entitled to summary judgment only if it meets its initial burden of
showing there are no triable issues of fact and the moving party is entitled to
judgment as a matter of law. This is true even if the opposing party fails to
file any opposition. The court's assessment of whether the moving party has
carried its burden—and therefore caused a shift—occurs before the court's
evaluation of the opposing party's papers. Therefore, the burden on the motion
does not initially shift as a result of what is, or is not, contained in the
opposing papers.” (Mosley v. Pacific
Specialty Insurance Company (2020) 49 Cal.App.5th 417, 434–435 (landlord’s
failure to address issue of whether they were aware of their tenant’s marijuana
growing operation was not grounds to grant summary judgment where moving party
failed to satisfy its initial burden as to the issue); Thatcher v. Lucky
Stores, Inc. (2000) 79 Cal.App.4th 1081, 1086-1087 (court cannot grant
summary judgment based merely on lack of opposition; court must first determine
if the moving party has satisfied its burden).)

In
addition, the evidence and affidavits of the moving party are construed
strictly, while those of the opponent are liberally read. (Government Employees Ins. Co. v. Sup. Ct.
(2000) 79 Cal.App.4th 95, 100.) “All
doubts as to the propriety of granting the motion (whether there is any issue
of material fact [Code of Civil Procedure] § 437c) are to be resolved in favor
of the party opposing the motion (i.e., a denial of summary judgment).” (Hamburg
v. Wal-Mart Stores, Inc. (2004) 116 Cal.App.4th 497, 502.)

Request
for Judicial Notice

Plaintiff’s
Request for Judicial Notice of his Exhibits 2-3, 13, 21, 22 and 35 is
GRANTED. These are documents filed with
government agencies. The fact that the
documents were filed on their respective dates with these agencies is
judicially noticed. However, the truth
of the contents of those documents is not judicially noticed.

Plaintiff’s
Request for Judicial Notice of his Exhibits 4, 5, 14 and 16 is DENIED. These documents do not fall within the
category of judicially noticeable documents under Evidence Code §§452 and 453. However, Exhibits 4 and 5 are admissible
evidence as statements of admission.

Evidentiary
Objections

WMI’s Objection
Nos. 1-5, 7 to Gallagher Declaration are OVERRULED. The Court declines to rule on Objection Nos.
6 and 8 pursuant to CCP §437c(q) as immaterial to the ruling.

WMI’s Objections
to the Gomez Declaration are OVERRULED.

WMI’s Objections
to the Ramirez Declaration are OVERRULED.

WMI’s Objections
to the Artiga Declaration are OVERRULED.

Discussion

Parties’ Positions

WMI’s MSJ filed on March 17, 2022

WMI
moves for summary judgment on grounds that it never employed Plaintiff. WMI argues Plaintiff’s causes of action are
all premised on WMI’s status as Plaintiff’s employer. WMI argues that under the common law test to
determine employment relationship, WMI was never Plaintiff’s employer, because
it never exercised any control over Plaintiff’s employment. WMI argues Plaintiff admitted he never heard
of WMI and his only supervisor was Carmen Muno, who was likewise never employed
by z, nor was Jose Bravo, the district manager, or Nicholas Moreno. WMI argues Plaintiff’s earnings statements
and W-2 forms do not list WMI as the employer.

WMI
is also not the alter ego of any of its subsidiaries. WMI argues Plaintiff denied that WMI ever
engaged in conduct that would support a finding of a unity of interest, e.g.
commingling of assets, failure to observe corporate formalities and failure to
maintain corporate records or minutes.
WMI argues there would be no inequitable result if the separate
existence of WMI from its subsidiaries were recognized.

WMI
argues in the alternative that, even if there were a triable issue of fact as
to its employer status, Plaintiff’s substantive claims fail. WMI argues Plaintiff’s claims are all
preempted by Section 301 of the Labor Management Relations Act (“LMRA”). WMI argues resolution of Plaintiff’s claims
requires the Court to interpret the Collective Bargaining Agreement (“CBA”)
between Plaintiff’s union and Plaintiff’s employer. WMI argues the CBA governed the terms and
conditions of Plaintiff’s employment, including the procedure and grounds for
termination and discipline. WMI argues
Plaintiff’s complaint challenges the legitimacy of WMI’s interpretation and
application of the CBA to terminate and discipline Plaintiff. WMI argues the Supreme Court has held that
Section 301 preempts state law claims under these circumstances.

WMI
argues Plaintiff also cannot satisfy his burden to establish that his
termination was based on his age. WMI
argues Plaintiff has provided no evidence that his age had anything to do with
his termination. WMI argues Plaintiff
admits that the basis for his termination was his violation of Life Critical
Rule No. 6. WMI argues if Plaintiff
claims this reason for his termination was pretextual, Plaintiff will be unable
to provide evidence corroborating his claim of pretext. WMI argues the only comment identified by
Plaintiff as being evidence of pretext did not make any reference to his age
and was a single, isolated comment.

WMI
argues Plaintiff’s Labor Code §1102.5 claim fails, because Plaintiff never
engaged in any whistleblower conduct.
WMI argues Plaintiff’s complaints about the long hours were not
disclosures of potential violations of law but purely internal personnel
matters. WMI argues Plaintiff also
cannot establish that any of his alleged complaints or statements were the
basis for his termination. WMI argues
the evidence establishes that Plaintiff was legitimately terminated for violating
a rule that was grounds for immediate termination. WMI argues Plaintiff also made his complaints
about hours to Carmen Munoz, who was not the decisionmaker who terminated
Plaintiff.

WMI
argues Plaintiff’s IIED claim is barred by worker’s compensation
exclusivity. WMI argues Plaintiff’s
allegations also do not qualify as extreme or outrageous conduct. WMI argues
Plaintiff’s allegations only establish that WMI engaged in ordinary managerial
conduct.

WMI
argues Plaintiff’s negligent hiring, supervision and retention claim fails as
an issue of law because it is barred by worker’s compensation exclusivity. WMI argues the negligence claim also fails,
because Plaintiff concedes that he never complained about Bravo or Moreno
during his employment. WMI argues it
never had notice of any unfitness of its alleged employees, an essential
element of the negligent hiring, et al. claim.

WMI
argues Plaintiff’s claims for failure to prevent harassment and discrimination
and wrongful termination fail, because there was no underlying harassment,
discrimination or wrongful termination. WMI
argues Plaintiff will be unable to establish that his termination for failing
to properly position the roll-off box was pretextual.

Finally,
WMI argues Plaintiff’s claim for punitive damages fails. WMI argues Plaintiff has not alleged,
attested to or otherwise shown that WMI engaged in fraud, oppression or
malice. WMI argues Plaintiff also cannot
demonstrate that an officer, director or managing agent of Defendant had
advance knowledge of the alleged wrongful acts or approved or ratified such
conduct.

Plaintiff’s
Opposition filed on November 7, 2023

Plaintiff
argues WMI is a joint employer and/or alter ego of USA Waste Management of
California and Waste Management, Inc. Plaintiff
argues WMI shares officers and directors with these entities.

Plaintiff
argues WMI fails to establish that the FEHA claims are barred and preempted by
Section 301 of the Labor Management Relation Act. Plaintiff argues the mere fact that the CBA
might provide a remedy or a duty related to a situation is insufficient to
establish preemption. Plaintiff argues the
Ninth Circuit has established that antidiscrimination statutes are not
preempted by Section 301, because the right at issue is defined and enforced
under state law. Plaintiff argues
determining whether Defendants' reasons for termination were pretextual does
not require interpretation of the CBA and only involves a factual
question.

Plaintiff
argues the reason given for his termination was pretextual. Plaintiff argues the roll-out bin was placed
facing traffic for months by Plaintiff and other employees and that they did so
per the instruction and approval of supervisors and the client. Plaintiff argues management knew this was the
reason why the roll-out bin was placed where it was, opposing traffic. Plaintiff’s supervisor, Carmen Munoz, bullied
other employees to sign statements regarding the roll out bin and stated to him
that she wanted to get rid of personnel.
Plaintiff argues this is sufficient to raise a triable issue of fact as
to whether Defendants’ reason for terminating him was a pretext for age
discrimination.

Plaintiff
argues Defendants fail to negate any element of his Labor Code §1102.5 claim.
Plaintiff argues he complained about the number of hours he was working and
there is no evidence that he did not believe that he was complaining about
something illegal. Plaintiff argues
Defendants have not proven by clear and convincing evidence that Plaintiff
would have been terminated even if he had not made the complaint.

Plaintiff
argues the IIED claim survives because it is based on FEHA violations.
Plaintiff argues he has suffered from extreme emotional distress as a result of
Defendants’ wrongful termination and discrimination against him.

Plaintiff
argues he is entitled to punitive damages based on FEHA violations. Plaintiff argues Defendants have not negated
his allegations of discrimination and therefore, grounds for punitive damages.

Plaintiff
argues his claims are not barred by workers’ compensation exclusivity.
Plaintiff argues Defendants have not demonstrated that the action alleged are
within the normal scope of work, given that they qualify as FEHA
violations. Plaintiff argues he has
suffered emotional distress due to Defendants’ termination of him based on his
age.

WMI’s
Reply filed on November 16, 2023

WMI argues there is no dispute that it was not
Plaintiff’s employer based on the undisputed, admissible evidence. WMI argues Plaintiff was only ever employed
by USA Waste and there is no evidence that WMI exercised control over Plaintiff
or permitted him to work. WMI argues it
was USA Waste alone that exercised control over Plaintiff’s hours, wages,
working conditions, terms of employment, including the decision to hire,
discipline and fire him. WMI argues USA
Waste’s name was also the only name on Plaintiff’s paychecks.

WMI
argues the mere fact that it shared officers and directors with USA Waste and
WMCI, reported assets of both subsidiaries on its annual 10K report to the SEC,
and reported labor costs and benefits as an expense in its 10K is not enough to
establish an employer-employee relationship with Plaintiff. WMI argues that a parent can only be deemed
an employer of a subsidiary’s employees if it exercised control over day-to-day
employment decisions of its subsidiary, i.e. more than the control normally
exercised by a parent over a subsidiary.
WMI argues there is no evidence that it ever exercised such control or
that it in any occupied the role or duties of an employer.

WMI
argues the undisputed facts and evidence also establish there is no genuine
dispute as to alter ego. WMI argues
there is a presumption against alter ego and the factors listed by Plaintiff
are insufficient to establish the doctrine.
WMI argues Plaintiff also fails to identify any basis to find that there
will be an inequitable result if WMI’s separate corporate existence is
recognized.

WMI
argues that even if there were a dispute as to its employer status, there is no
genuine dispute as to the basis for Plaintiff’s termination, which was his
violation of Life Critical Rule 6. WMI
argues Plaintiff does not deny that he violated Rule 6. WMI argues Plaintiff fails to present any
evidence from which a trier of fact could infer that this was a pretext for age
discrimination. WMI argues the violation
did not require progressive discipline under the CBA, nor does Plaintiff
present any evidence or argument that the persons who made the decision to
terminate him, Dory and Kato, had any discriminatory animus.

WMI
argues the claims will also require the Court to interpret the CBA. WMI argues the claims are therefore preempted
by Section 301 of the Labor Management Relations Act.

WMI
argues the IIED claim is also subject to workers’ compensation
exclusivity. WMI argues the IIED claim
is based on conduct that occurred at the worksite in the normal course of the
employer-employee relationship, i.e. the decision to terminate Plaintiff.

WMI
argues the punitive damages claim likewise fails. WMI argues the evidence establishes that it
took no actions that could justify punitive damages. WMI argues it did not even participate in the
decision to terminate Plaintiff, nor did it hire him or in any way participate
in any investigation or termination of his employment.

Triable
issues of fact exist as to whether WMI was Plaintiff’s employer

Test
to determine “Employer”

Pursuant
to Government Code §12926, an “employer” for purposes of FEHA “includes any
person regularly employing five or more persons, or any person acting as an
agent of an employer, directly or indirectly…” (Gov. C. §12926.) “[A] business-entity agent of an employer can
fall within the FEHA's definition of employer, and it may be directly liable
for FEHA violations, in appropriate situations. Although the question presented
in this case does not require that we go further and attempt to identify the
specific scenarios in which a business-entity agent will be subject to
liability under the FEHA, we recognize as a necessary minimum that, consistent
with the FEHA's language and purpose, a business-entity agent can bear direct
FEHA liability only when it carries out FEHA-regulated activities on behalf of
an employer.” (Raines v. U.S.
Healthworks Group (2023) 15 Cal.5^th 268, 288.)

“An
employee who seeks to hold a parent corporation liable for the acts or
omissions of its subsidiary on the theory that the two corporate entities
constitute a single employer has a heavy burden to meet under both California
and federal law. Corporate entities are presumed to have separate existences,
and the corporate form will be disregarded only when the ends of justice
require this result. In particular, there is a strong presumption that a parent
company is not the employer of its subsidiary's employees.” (Laird v. Capital Cities/ABC, Inc. (1998)
68 Cal.App.4^th 727, 738.)

Under
the “integrated enterprise test,” four factors are examined: interrelation of
operations, common management, centralized control of labor relations and
common ownership or financial control. (Id.
at 737.) “Under this test, common
ownership or control alone is never enough to establish parent liability. Although courts consider the four factors
together, they often deem centralized control of labor relations the most
important. The critical question is, what entity made the final decisions
regarding employment matters related to the person claiming discrimination? A parent's broad general policy statements
regarding employment matters are not enough to satisfy this prong. To satisfy the control prong, a parent must
control the day-to-day employment decisions of the subsidiary.” (Id. at 738.)

“To
make a sufficient showing of ‘interrelation of operations’ on summary judgment,
the plaintiff must do more than merely show that officers of the subsidiary
report to the parent corporation or that the parent benefits from the
subsidiary's work. Since these facts exist in every parent-subsidiary
situation, such a showing would create a triable issue of material fact in
every case. What the plaintiff must show, rather, is that the parent has
exercised control to a degree that exceeds the control normally exercised by a
parent corporation.” (Id. at
738.)

WMI
negates the allegation that it was Plaintiff’s employer

WMI
establishes that Waste Management California, Inc. and USA Waste of California,
Inc. are its subsidiaries. (Defendant’s
SSUMF No. 11, Defendant’s Compendium of Evidence (“COE”), Tippy Dec., ¶4.) WMI does not have any employees. (Defendant’s SSUMF No. 19, Defendant’s COE,
Tippy Dec., ¶2. WMI therefore does not
employ Plaintiff. (Defendant’s SSUMF No.
20.) Plaintiff was only employed by USA
Waste of California, Inc. (Id. at
22; Defendant’s COE, Burns Dec., ¶3.)
Plaintiff’s only supervisor he could recall, Carmen Munoz, was only
employed by USA Waste, not WMI. (Id.
at 24.) Nicholas Moreno, another
supervising employee identified by Plaintiff in the FAC, was never employed by
WMI and was only ever employed by USA Waste.
(Id. at 26; Defendant’s COE, Burns Dec. ¶6.) WMI never issued a paycheck to Plaintiff and
any earnings statements, paychecks and W-2s were issued by USA Waste. (Id. at 27-30; Defendant’s COE, Burns
Dec. ¶¶7-8.) Plaintiff’s unemployment
claim only named USA Waste. (Id. at
31; Defendant’s COE, Burns Dec., ¶9.)

WMI
also establishes that it adhered to corporate formalities. WMI maintains its own records and minutes as
required under the laws of Texas, its state of incorporation. (Defendant’s SSUMF No. 9, Defendant’s COE,
Tippy Dec., ¶5.) It has its own
corporate officers and directors and its subsidiaries have their own officers
and directors. (Defendant’s SSUMF Nos.
11-12, Defendant’s COE, Tippy Dec., ¶6.)
WMI is sufficiently capitalized and all transactions between it and its
subsidiaries are at arm’s length with full adherence to the formalities of such
transactions. (Defendant’s SSUMF No. 13,
Defendant’s COE, Tippy Dec., ¶7.) WMI
and its subsidiaries are all sufficiently capitalized to meet their obligations
and discharge any liabilities.
(Defendant’s SSUMF No. 14, Defendant’s COE, Tippy Dec., ¶7.) WMI is a publicly traded company and its SEC
filings reflect that it is the parent company to subsidiaries that include USA
Waste and WMCI (Defendant’s SSUMF No. 17, Defendant’s COE, Tippy Dec.,
¶8.)

Based
on these facts, WMI was not Plaintiff’s employer. WMI did not hire Plaintiff, did not pay
Plaintiff, did not oversee Plaintiff, nor did its employees. WMI’s only relationship to Plaintiff is as
the parent company of Plaintiff’s employer, who was ostensibly USA Waste. The evidence establishes that WMI did not
exercise control over USA Waste or WMCI beyond that normally exercised by a
parent over its subsidiary.

The
persons identified by Plaintiff as making the day-to-day decisions regarding
his employment were also employed by USA Waste, not WMI. Plaintiff only identifies Carmen Moreno, Joey
Bravo and Nicholas Moreno as the persons who oversaw him and were involved in
the decision to terminate. These
individuals were never employees of WMI.
(Defendant’s SSUMF Nos. 24-26.)

Plaintiff
raises a triable issue of fact as to whether WMI was his employer

Plaintiff
raises a triable issue of fact as to whether he was employed by WMI. Plaintiff submits the job application as
evidence that he applied for work with WMI and that WMI hired him. The application is titled “WASTE MANAGEMENT
INC., AN EQUAL OPPORTUNITY EMPLOYER, APPLICATION FOR EMPLOYMENT.” (Gallagher Dec., v. 1, ¶15, Ex. 17, USAWASTE000102.) The application also states that the
application must be completed to be considered “for employment with Waste
Management, Inc. or any or its subsidiaries and divisions.” (Id.)
The application references Waste Management Inc. throughout and states
that WMI and its divisions and subsidiaries do not discriminate, in accordance
with applicable laws. (Id.) The application also indicates that it is for
consideration of the applicant’s employment “by Waste Management, Inc.
or ________________________, a company affiliated with Waste Management,
Inc.” (Id. at USAWASTE000103.) There is no alternative employer listed to
Waste Management, Inc. “Waste
Management” is also defined to mean “Waste Management, Inc. and all of its
divisions, subsidiaries and affiliates, including the above named
employer.” (Id.) The only named employer on the job
application is “Waste Management, Inc.”

In addition, Plaintiff testified at
deposition that he worked for “Waste Management Incorporation.” (Gallagher Dec., v. 1, Ex. 14, 29:19-24.) WMI’s SSUMF No. 23 that “Plaintiff does not even
know who WMI is” relies on out of context deposition testimony and ignores
Plaintiff’s clear testimony that he worked for WMI. (WMI’s COE, Ex. E, Pl. Depo., 30:3-9.)

Plaintiff also calls into question
Tippy’s testimony that WMI has no employees.
Obviously, Tippy is herself an employee officer of WMI. (Defendant’s COE, Tippy Dec., ¶1. Moreover, there are several officers listed
in the Texas Franchise Tax Public Information Report filed by WMI for
2019. (Gallagher Dec., v. 1, Ex. 13.) WMI also ambiguously stated in its 2021 10-K
that “we employed approximately 48,500 people as of December 31,
2021.” (Gallagher Dec., v. 1, Ex. 5,
004.)

Based on the application and
Plaintiff’s deposition testimony, Plaintiff raises triable issues of fact as to
(1) whether WMI truly has no employees; (2) whether Plaintiff applied to WMI
and was hired by WMI; and (3) whether WMI was acting as an agent of USA Waste
in hiring Plaintiff. Under Gov. C.
§12926(d), employer includes any person acting as an agent of an employer,
directly or indirectly. Plaintiff’s
evidence must be construed liberally while WMI’s must be construed strictly on
summary judgment. (Government
Employees Ins. Co. v. Sup. Ct. (2000) 79 Cal.App.4th 95, 100.) “All doubts as to the propriety of granting
the motion (whether there is any issue of material fact [Code of Civil
Procedure] § 437c) are to be resolved in favor of the party opposing the motion
(i.e., a denial of summary judgment).” (Hamburg v. Wal-Mart Stores, Inc.
(2004) 116 Cal.App.4th 497, 502.)

Triable issues of fact remain as to
whether Plaintiff was employed, at least jointly, by WMI. The motion for summary judgment based on lack
of an employment relationship is denied.

Triable issues of fact remain as to whether Defendants
terminated Plaintiff for a legitimate, nondiscriminatory reason

McDonnell
Douglas Test and burdens on summary judgment of FEHA discrimination claims

“It
is an unlawful employment practice…for an employer, because of the…age…of any
person…to discharge the person from employment or from a training program
leading to employment, or to discriminate against the person in compensation or
in terms, conditions, or privileges of employment.” Govt. C. §12940(a).

An employment discrimination case
can be proven with direct or circumstantial evidence. (Guz v. Bechtel National, Inc. (2000)
24 Cal.4th 317, 356.) “[D]irect evidence
of intentional discrimination is rare, and that such claims must usually be
proved circumstantially.” (Id. at
354.)

In response to this reality, the
courts apply a burden shifting test to circumstantial evidence cases of
discrimination known as the “McDonnell Douglas” test, first articulated in McDonnell
Douglas Corp. v. Green (1973) 411 U.S. 792.
(Id.) However, in the rare
case where a plaintiff possesses direct evidence of discrimination, the
burden-shifting analysis under the McDonnell Douglas test and discussed
in Guz does not apply.” (DeJung v.
Supr. Ct. (2008) 169 Cal.App.4th 533, 550 (direct evidence of discrimination
presented where presiding judge informed 65-year old applicant for full-time
commissioner position that hiring committee indicated they wanted to hire a
candidate who was “younger,” “maybe in their mid-40s”).)

“At trial, the McDonnell Douglas
test places on the plaintiff the initial burden to establish a prima facie case
of discrimination…Generally, the plaintiff must provide evidence that (1) he
was a member of a protected class, (2) he was qualified for the position he
sought or was performing competently in the position he held, (3) he suffered
an adverse employment action, such as termination, demotion, or denial of an
available job, and (4) some other circumstance suggests discriminatory
motive. If, at trial, the plaintiff
establishes a prima facie case, a presumption of discrimination arises. This presumption, though rebuttable, is
legally mandatory.” (Guz v. Bechtel
Nat. Inc. (2000) 24 Cal.4th 317, 354–56.)

The burden then “shifts to the
employer to rebut the presumption by producing admissible evidence, sufficient
to raise a genuine issue of fact and to justify a judgment for the employer,
that its action was taken for a legitimate, nondiscriminatory reason. If the employer sustains this burden, the
presumption of discrimination disappears”
(Id.)

Where a defendant employer moves for
summary judgment, the initial burden rests with the employer to show that no
unlawful discrimination occurred. (Guz
v. Bechtel Nat’l, Inc. (2000) 24 Cal.4th 317, 354-355; see Jones v. R.J.
Donovan Correctional Facility (2007) 152 Cal.App.4th 1367, 1379. “The burdens and order of proof therefore
shift under the McDonnell Douglas test when an employer defendant seeks
summary judgment. An employer defendant
may meet its initial burden on summary judgment, and require the employee
plaintiff to present evidence establishing a triable issue of material fact, by
presenting evidence that either negates an element of the employee's prima
facie case, or establishes a legitimate nondiscriminatory reason for taking the
adverse employment action against the employee.” (Swanson v. Morongo Unified School Dist.
(2014) 232 Cal.App.4th 954, 966.)

“To avoid summary judgment on the
second of these two grounds [legitimate nondiscriminatory reason for adverse
action], an employee claiming discrimination must offer substantial evidence
that the employer's stated nondiscriminatory reason for the adverse action was
untrue or pretextual, or evidence the employer acted with a discriminatory
animus, or a combination of the two, such that a reasonable trier of fact could
conclude the employer engaged in intentional discrimination.” (Id.)

“The plaintiff must then have the
opportunity to attack the employer's proffered reasons as pretexts for
discrimination, or to offer any other evidence of discriminatory motive. In an appropriate case, evidence of dishonest
reasons, considered together with the elements of the prima facie case, may
permit a finding of prohibited bias. The
ultimate burden of persuasion on the issue of actual discrimination remains
with the plaintiff.” (Guz, supra,
24 Cal.4th at 354-355.)

“[T]he 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. Ca. Dept. of Social Services
(1997) 57 Cal.App.4th 997, 1004-1005.)
The employee “must demonstrate 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 that the employer did not act
for the asserted non-discriminatory reasons.”
(Horn v. Cushman & Wakefield Western, Inc. (1999) 72
Cal.App.4th 798, 807.)

Defendant WMI presents a
legitimate, nondiscriminatory reason for terminating Plaintiff’s employment

WMI submits evidence that Plaintiff
was bound by the Collective Bargaining
Agreement and that pursuant to the CBA, Plaintiff was subject to “Life
Critical Rules.” (Defendant’s SSUMF No.
48, Defendant’s COE, Ex. E, Pl. Depo, Ex. 5.)
WMI submits evidence that Plaintiff violated Life Critical Rule 6, which
prohibits an operator from operating vehicles against traffic and requires the
drivers to never zigzag. (Defendant’s
SSUMF Nos. 49-55, 62, Defendant’s COE, Ex. E, Pl. Depo., 72:17-22, Ex. 13.) Plaintiff stated at deposition that he placed
the roll off bin in a position that violated Defendant’s official rules. (Defendant’s SSUMF No. 63, Defendant’s COE,
Ex. E, Pl. Depo., 74:16-75:1.) Plaintiff
also maintained that drivers were told that if the job could be done in a safe
manner despite violating the rule, and Defendants agreed to it, the job could
be done that way. (Id.)

Defendant WMI has therefore
presented evidence of a legitimate, nondiscriminatory reason for terminating
Plaintiff’s employment. The burden
therefore shifts to the Plaintiff to raise a triable issue of fact.

Plaintiff submits substantial
evidence that the legitimate, nondiscriminatory reason given for his
termination was untrue or pretextual

In order to defeat Defendant’s
showing of a legitimate, nondiscriminatory reason for terminating Plaintiff,
Plaintiff must submit substantial evidence that (1) WMI’s stated
nondiscriminatory reason for terminating him was untrue or pretextual, or (2) evidence
WMI acted with a discriminatory animus, or (3) a combination of the two, such
that a reasonable trier of fact could conclude the employer engaged in
intentional discrimination. (Swanson,
supra, 232 Cal.App.4th at 966.) “It
is not sufficient for an employee to make a bare prima facie showing or to
simply deny the credibility of the employer's witnesses or to speculate as to
discriminatory motive. Rather it is
incumbent upon the employee to produce substantial responsive evidence
demonstrating the existence of a material triable controversy as to pretext or
discriminatory animus on the part of the employer.” (Serri v. Santa Clara
University (2014) 226 Cal.App.4^th 830, 862.) Plaintiff
submits substantial evidence that the reason given for terminating him was
pretextual or false. Plaintiff submits
evidence that drivers were instructed to place roll-off bins in the way
requested by the client and if a client requested placement in a way that was
different from that required under Waste Management rules, drivers were told to
get permission from a supervisor or dispatch.
(Gallagher Dec. with Compendium of Exhibits, Ex. 12, Gomez Dec., ¶¶4-5;
Ex. 23, Artiga Dec., ¶¶6-7; Ex. 24, Salas Dec., ¶5.) Plaintiff submits substantial evidence that
the placement of the subject roll-off bin facing opposite the direction of
traffic at the location was common practice with the drivers and was with the
approval of supervisors and the client.
(Gallagher Dec. with Compendium of Exhibits, Ex. 12, Gomez Dec., ¶¶4-5; Ex.
23, Artiga Dec., ¶¶6-7; Ex. 24, Salas Dec., ¶5.)

Plaintiff also submits evidence that
the client had requested the bin to be placed against the flow of traffic. Plaintiff relies on the “Corrective Action
Report” submitted by Defendant in support of its MSJ and the testimony of
Gomez, Artiga and Salas. (Defendant’s
Compendium of Exhibits, Ex. E, Pl. Depo, Ex. 13, USAWASTE000297; Gallagher Dec.
with Compendium of Exhibits, v. 1, Ex. 12, Gomez Dec., ¶¶4-5; Ex. 23, Artiga
Dec., ¶¶6-7; Ex. 24, Salas Dec., ¶5.)

Perhaps the most compelling evidence
of pretext is the testimony of Martin Ramirez Salas. Nicholas Moreno was informed of Artiga’s
alleged violation of Rule 6 on January 19, 2018. (Defendant’s SSUMF No. 59.) On that same date, Moreno contacted driver
Salas to relocate the rolling bin that Artiga had placed against the direction
of traffic in violation of Rule 6.
(Gallagher Dec. with Compendium of Exhibits, Ex. 24, Salas Dec.,
¶5.) Later that same day, Moreno
contacted Salas and asked him to move the rolling bin back to the same position
Artiga had placed it previously. (Id.
at ¶5.)

Plaintiff submits substantial
evidence that it was common practice for drivers to place the rolling bin in
exactly the position Plaintiff had, that both the client and management had
approved placement of the bin in that position despite it violating the rules
and that Moreno instructed Ramirez Salas to place the bin back into that exact
same position Plaintiff had placed it. Based
on this evidence, Plaintiff establishes with substantial evidence that the
reason given for his termination—violation of Rule 6 by placing the rolling bin
with against the direction of traffic—was false or pretextual.

            WMI argues vociferously that there
is no evidence that any comments were made that would indicate any
discriminatory animus. However, as
discussed in Swanson and Serri, to rebut Defendant’s showing of a
legitimate, nondiscriminatory reason for terminating Plaintiff, Plaintiff was
only required to submit substantial evidence that the reason given was
pretextual or false. Plaintiff was not
required to present evidence that WMI acted with a discriminatory animus,
although that was also an option.       Defendant WMI’s motion for summary
judgment on grounds that it had a legitimate, nondiscriminatory reason for
terminating Plaintiff is denied.

Triable issues of fact remain as to Plaintiff’s cause
of action for violation of Labor Code §1102.5

Labor Code §§1102.5 and 1102.6

“An employer, or any person acting
on behalf of the employer, shall not retaliate against an employee for
disclosing information, or because the employer believes that the employee
disclosed or may disclose information,…to a person with authority over the
employee or another employee who has the authority to investigate, discover, or
correct the violation or noncompliance…if the employee has reasonable cause to
believe that the information discloses a violation of state or federal statute,
or a violation of or noncompliance with a local, state, or federal rule or
regulation, regardless of whether disclosing the information is part of the
employee's job duties.” (Labor Code
§1102.5(b).)

“In a civil action or administrative
proceeding brought pursuant to Section 1102.5, once it has been demonstrated by
a preponderance of the evidence that an activity proscribed by Section 1102.5
was a contributing factor in the alleged prohibited action against the
employee, the employer shall have the burden of proof to demonstrate by clear
and convincing evidence that the alleged action would have occurred for
legitimate, independent reasons even if the employee had not engaged in
activities protected by Section 1102.5.”
(Labor Code §1102.6.)

“Section 1102.6 provides the
governing framework for the presentation and evaluation of whistleblower
retaliation claims brought under section 1102.5. First, it places the burden on
the plaintiff to establish, by a preponderance of the evidence, that retaliation
for an employee's protected activities was a contributing factor in a contested
employment action. The plaintiff need not satisfy McDonnell Douglas in
order to discharge this burden. Once the plaintiff has made the required
showing, the burden shifts to the employer to demonstrate, by clear and
convincing evidence, that it would have taken the action in question for
legitimate, independent reasons even had the plaintiff not engaged in protected
activity.” (Lawson v. PPG
Architectural Finishes, Inc. (2022) 12 Cal.5th 703, 718.)

Section 1102.6 “explicitly imposes a
higher burden of production, clear and convincing,” on the employer to
establish that “it would have taken the action in question for legitimate,
independent reasons even had plaintiff not engaged in the protected activity.” (Vataro v. County of Sacramento (2022)
79 Cal.App.5th 367, 379.) “It is not
enough…that an employer shows it had a legitimate, nondiscriminatory reason for
the adverse employment action. Were that the standard, then an employer could
satisfy its burden simply by showing it had one legitimate reason for its
action, even if several illegitimate reasons principally motivated its
decision. But that is not the applicable
standard here. Under section 1102.6, the employer must instead show ‘the
alleged action would have occurred for legitimate, independent reasons even if
the employee had not engaged in activities protected by Section 1102.5.’” (Id.)

Under Labor Code §1102.6, an
employee need not show that the employer’s nonretaliatory reason for the
employment action was pretextual. (Lawson,
supra, 12 Cal.5th at 715-716.)
“Even if the employer had a genuine, nonretaliatory reason for its
adverse action, the plaintiff still carries the burden assigned by [Labor Code
§1102.6] if it is shown that the employer also had at least one retaliatory
reason that was a contributing factor in the action.” (Id.)

An employer satisfies its burden on
a defense summary judgment if it presents evidence that would “require a
reasonable factfinder to find it highly probable’” that the employment action
would have occurred for legitimate, independent reasons even if the employee
had not engaged in the protected conduct under Labor Code §1102.5. (Vataro, supra, 79 Cal.App.5th
at 386 (employer satisfied its burden on summary judgment of Labor Code
§1102.5(b) claim with undisputed evidence that employee had been insubordinate,
disrespectful and dishonest, including employee’s own concession that she was
“difficult to work with, distant and unwilling to cooperate”)

WMI fails to negate allegations
of whistleblower conduct

WMI argues Plaintiff’s complaint
regarding the number of hours that drivers were forced to work does not rise to
the level of whistleblower conduct. WMI
argues Plaintiff cannot establish that retaliation played a role in his
termination.

WMI fails to negate Plaintiff’s
allegations of whistleblowing. Labor
Code §1102.5 applies if the “employee has reasonable cause to believe
that the information discloses a violation of state or federal statute, or a
violation of or noncompliance with a local, state, or federal rule or
regulation.” (Labor Code
§1102.5(b).) Plaintiff alleges that he
complained about safety violations, overworking employees, underpaying
employees, denying Plaintiff and others meal and rest breaks and forcing them
to work long hours, driving large trucks even when they were fatigued. (FAC, ¶157.)
Plaintiff alleges that he reasonably believed these acts violated wage
and hour laws, including Labor Code 1198.3, et seq., 1194, et seq., 226.7, 201
and 202, 226 and 117, 6310, et seq, 6311, et seq. (FAC, ¶157.)

As moving party, WMI fails to
satisfy its burden of presenting evidence that Plaintiff reasonably believed
these acts constituted a violation of state law. WMI merely argues that complaints regarding
working too many hours is a purely internal personnel matter, not disclosures
of potential violations of law. WMI
oversimplifies the FAC’s allegations.
Plaintiff allegedly complained about more than long hours. Plaintiff
allegedly complained about safety issues, failures to provide meal and rest
breaks, underpayment and forcing drivers to drive under dangerous
conditions.

WMI’s reliance on Patten v. Grant
Joint Union High School Dist. (2005) 134 Cal.App.4^th 1378 is
also misplaced. In Patten, the
Court found that two of four disclosures by the plaintiff did not qualify as
whistleblowing under Labor Code §1102.5.
(Patten, supra, 134 Cal.App.4^th at 1382 and
1385.) Those disclosures involved
teachers who allegedly peered into the girls locker room and made off color
remarks. However, in Patten, the
plaintiff admitted that those two disclosures were merely forwarded to human
resources for “personnel action.” (Id.
at 1385.) Based on these admissions,
plaintiff’s disclosures did not qualify as disclosures of legal violations but
reports of an internal personnel matter.
(Id.)

Here, Plaintiff alleges that he
reported what he reasonably believed to be violations of the law, not merely
internal personnel policy. Unlike Patten,
there is no evidence undermining Plaintiff’s reasonable belief that safety
issues, failures to provide meal and rest breaks, underpayment and forcing
drivers to drive long hours under dangerous conditions were violations of the
law.

In addition, WMI argues Plaintiff
cannot demonstrate that he was terminated in retaliation for these
complaints. However, WMI is the moving
party, not Plaintiff. WMI was required
to establish as the party moving for summary judgment that it would have
terminated Plaintiff even absent the alleged whistleblowing. As previously discussed, WMI demonstrates
that there was a legitimate reason for termination but nothing more. Even if this were sufficient under Labor Code
§1102.5, Plaintiff has submitted evidence raising a triable issue of fact as to
whether the stated reason for termination was false and whether Plaintiff would
have been terminated were it not for the alleged whistleblowing conduct.

WMI fails to establish that Workers’ Compensation
Exclusivity bars Plaintiff’s IIED claim

Workers’ Compensation Exclusivity under Labor Code §3602

“Where the conditions of
compensation set forth in Section 3600 concur, the right to recover
compensation is, except as specifically provided in this section and Sections
3706 and 4558, the sole and exclusive remedy of the employee or his or her
dependents against the employer. The fact that either the employee or the
employer also occupied another or dual capacity prior to, or at the time of,
the employee's industrial injury shall not permit the employee or his or her
dependents to bring an action at law for damages against the employer.” (Labor Code §3602.)

Workers’ compensation is the
exclusive remedy for a claim based on conduct that occurred in the normal
course of the employer-employee relationship.
(Miklosy v. Regents of University of California (2008) 44 Cal.4th
876, 902.) A claim for emotional
distress based on conduct in the workplace is not subject to Worker’s
Compensation Exclusivity under certain circumstances, such as when it is
outside the normal relationship or a violation of public policy. (Smith v. International Brotherhood of
Electrical Workers (2003) 109 Cal.App.4th 1637, 1658.) Garden variety termination of employment is
not outside the normality of an employment relationship without further facts
placing it outside the normal relationship.
(Shoemaker v. Myers (1990) 52 Cal.3d 1, 25.)

“A number of California authorities
have concluded claims for intentional infliction of emotional distress in the
employment context may be asserted where the actionable conduct also forms the
basis for a FEHA violation.” (Light
v. Department of Parks & Recreation (2017) 14 Cal.App.5th 75, 97.) Thus, where the emotional distress results
from unlawful discrimination or other misconduct that “exceeds the normal part
of the employment relationship” exclusivity does not apply. (Livitsanos v. Sup.Ct. (Continental
Culture Specialists, Inc.) (1992) 2 Cal.4th 744, 756 (emotional distress
resulting from employer's defamation and harassment); Nazir v. United
Airlines, Inc. (2009) 178 Cal.App.4th 243, 288.) Several cases have held that the exclusivity
of workers’ compensation law does not apply to emotional distress caused by
workplace discrimination. (Cornell v.
Berkeley Tennis Club (2017) 18 Cal.App.5th 908, 946 (plaintiff can pursue
IIED claim in employment context where conduct at issue violates FEHA, but
finding plaintiff failed to satisfy IIED elements); Light v. California
Dept. of Parks & Recreation (2017) 14 Cal.App.5th 75, 101 (emotional
distress based on discrimination and retaliation alleged to violate FEHA); Fretland
v. County of Humboldt (1999) 69 Cal.App.4th 1478, 1492 (emotional distress
resulting from alleged work-related injury discrimination); Murray v.
Oceanside Unified School Dist. (2000) 79 Cal.App.4th 1338, 1362 (abrogated
on other grounds by Hart v. National Mortg. & Land Co. (1987) 189
Cal.App.3d 1420)(emotional distress allegedly resulting from continuing pattern
of workplace harassment based on sexual orientation).)

Here, Plaintiff is alleging
emotional distress damages as a result of termination based on age
discrimination and whistleblower retaliation.
Plaintiff’s emotional distress is therefore not the result of a “garden
variety termination.”

WMI fails to establish that
Plaintiff’s IIED claim is barred by Labor Code §3602.

Triable issues of fact remain as to whether Defendant
engaged in extreme and outrageous conduct in connection with Plaintiff’s IIED
claim

To state an IIED claim, the
plaintiff must allege facts showing extreme and outrageous conduct by the
defendant with the intention of causing, or reckless disregard of the
probability of causing, emotional distress.
(Smith v. BP Lubricants USA Inc. (2021) 64 Cal.App.5th 138, 147
(plaintiff alleged outrageous conduct based on three racially offensive
statements made by defendant’s employee before 50 of plaintiff’s coworkers and
3 of his supervisors); Berkley v. Dowds (2007) 152 Cal.App.4th 518, 534
(affirming order sustaining demurrer to IIED cause of action without leave to
amend based on failure to allege outrageous conduct).) Whether conduct is outrageous is usually a
question of fact but can be determined as an issue of law. (Smith, supra, 64 Cal.App.5th
at 147.)

WMI argues it did not engage in
extreme and outrageous conduct, because it terminated Plaintiff for a
legitimate, nondiscriminatory, nonretaliatory reason. However, as discussed above, triable issues
of fact remain as to whether WMI terminated Plaintiff because of his age and
whether WMI terminated Plaintiff for complaining about hour, wage, safety and rest
break violations. As such, WMI fails to
negate Plaintiff’s allegations of outrageous conduct.

Triable issues of fact remain as to
whether WMI engaged in the alleged outrageous conduct.

Workers’ Compensation
Exclusivity bars Plaintiff’s negligent hiring claim

An employee’s claims for negligent
supervision, retention and hiring are barred by Workers’ Compensation
Exclusivity, even in cases where the employee alleges harassment. (Coit Drapery Cleaners, Inc. v. Sequoia
Ins. Co. (1993) 14 Cal.App.5^th 1595, 1606.) However, where the employer ratifies the
harassment, the employee may sue the employer for harassment directly and such
claim would not be barred by Worker’s Compensation Exclusivity. (Id.)

WMI argues Plaintiff’s negligent
hiring claim is barred by Workers’ Compensation Exclusivity. Plaintiff did not respond to this
argument.

No triable issues remain as to the
negligent hiring and supervision claim.
Defendant WMI’s motion for summary adjudication is granted as to the 6^th
cause of action for negligent hiring and supervision.

Triable issues of fact remain
as to punitive damages

“In the usual case, the question of
whether the defendant's conduct will support an award of punitive damages is
for the trier of fact, since the degree of punishment depends on the peculiar
circumstances of each case. But the
issue may be resolved on summary judgment, giving due regard to the higher
proof standard. While the clear and convincing evidentiary standard is a
stringent one, it does not impose on a plaintiff the obligation to prove a case
for punitive damages at summary judgment.
However, where the plaintiff's ultimate burden of proof will be by clear
and convincing evidence, the higher standard of proof must be taken into
account in ruling on a motion for summary judgment or summary adjudication,
since if a plaintiff is to prevail on a claim for punitive damages, it will be
necessary that the evidence presented meet the higher evidentiary
standard. Summary judgment on the issue
of punitive damages is proper only when no reasonable jury could find the plaintiff's
evidence to be clear and convincing proof of malice, fraud or oppression.” (Johnson & Johnson v. Superior Court
(2011) 192 Cal.App.4th 757, 762; Pacific Gas and Electric Company v.
Superior Court (2018) 24 Cal.App.5th 1150, 1158–1159.) The party moving for adjudication of a
plaintiff’s punitive damages claim bears the initial burden of production. (CCP §437c(f)(1) and (2); Johnson &
Johnson v. Supr. Ct. (2011) 192 Cal.App.4th 757, 761.)

As the moving party seeking
adjudication of the punitive damages claim, the initial burden was on the WMI
to negate Plaintiff’s claims of malice, fraud and oppression. (CCP §437c(f)(1) and (2); Johnson &
Johnson v. Supr. Ct. (2011) 192 Cal.App.4th 757, 761.) Only if that burden was satisfied would the
burden shift to Plaintiff to produce clear and convincing evidence of malice,
fraud and oppression. (Mosley v.
Pacific Specialty Insurance Company (2020) 49 Cal.App.5th 417, 434–435
(landlord’s failure to address issue of whether they were aware of their
tenant’s marijuana growing operation was not grounds to grant summary judgment
where moving party failed to satisfy its initial burden as to the issue); Thatcher
v. Lucky Stores, Inc. (2000) 79 Cal.App.4th 1081, 1086-1087 (court cannot
grant summary judgment based merely on lack of opposition; court must first
determine if the moving party has satisfied its burden).)

WMI’s only argument is that
Plaintiff has not presented evidence of fraudulent or oppressive conduct and
that he relies entirely on unsubstantiated allegations of age discrimination
and retaliation. However, as discussed
above, triable issues of fact remain as to whether WMI discriminated against
Plaintiff based on age or retaliated against him for complaining about
potential legal violations. As such,
triable issues of fact remain as to whether WMI engaged in malicious conduct
under Civil Code §3294.

WMI’s motion for summary
adjudication of Plaintiff’s punitive damages claim is denied.

WMI fails to establish that
Plaintiff’s claims are preempted under Section 301 of the Labor Management
Relations Act

Section 301 of the LMRA states:
“Suits for violation of contracts between an employer and a labor organization
representing employees in an industry affecting commerce ... may be brought in
any district court of the United States having jurisdiction of the parties.” 29
U.S.C. § 185(a). “[F]ederal common law
preempts the use of state contract law in CBA interpretation and
enforcement.” (Kobold v. Good Samaritan
Regional Medical Center (9th Cir. 2016) 832 F.3d 1024, 1032.)

Section 301 does not preempt state
law claims that do not require construing a collective bargaining
agreement. (Lingle v. Norge Div. of
Magic Chef, Inc., 486 U.S. 399, 408 (1988).
“Preemption is appropriate… only when the provisions of a
collective-bargaining agreement must be interpreted.” (Ramirez v. Fox Television Station, Inc.
(9th Cir. 1993) 998 F.2d 743, 748.)

“Critically, not every dispute
concerning employment, or tangentially involving a provision of a
collective-bargaining agreement, is pre-empted by § 301. Drawing on Supreme Court precedent, this
court has articulated a two-step inquiry to analyze § 301 preemption of state
law claims. First, a court must determine whether the asserted cause of action
involves a right conferred upon an employee by virtue of state law, not by a
CBA. If the right exists solely as a result of the CBA, then the claim is
preempted, and the analysis ends there…If the court determines that the right
underlying the plaintiff's state law claim(s) exists independently of the CBA,
it moves to the second step, asking whether the right is nevertheless
substantially dependent on analysis of a collective-bargaining agreement.” (Kobold, supra, 832 F.3d at
1032.)

FEHA claims are not preempted by
Section 301. “In every case in which we
have considered an action brought under the California Employment Act, we have
held that it is not preempted by section 301.”
(Ramirez v. Fox Television Station, Inc. (1993) 998 F.2d
743,748.) Antidiscrimination statutes,
like FEHA, are not preempted by section 301, because the right is defined and
enforced under state law without reference to the terms of any collective
bargaining agreement. (Chmiel v.
Beverly Wilshire Hotel Co. (9th Cir. 1989) 873 F.2d 1283, 1286.)

WMI fails to establish that
resolution of Plaintiff’s claims requires interpretation of the CBA. While Plaintiff was terminated pursuant to
Rule 6 and the CBA, there is no dispute as to the terms of the CBA or its interpretation. Plaintiff admits that his conduct violated
Rule 6 but he maintains that other drivers were doing the same thing he was
fired for doing and they were all doing it at the behest of management. Plaintiff’s claim is that he was terminated
due to his age and in retaliation for his complaints regarding working
conditions. Resolution of such claims
may “reference” the CBA to determine the terms and conditions of employment,
but Plaintiff’s underlying claim is that his employers discriminated and
retaliated against him in applying or altering those terms and conditions. (Ramirez, supra, 998 F.2d at
748-749 (Section 301 did not preempt plaintiff’s FEHA claims of national origin
discrimination, because the claims did not require interpretation of the CBA
and were based on discrimination in application of the terms of employment,
which included the CBA.) WMI fails to
establish that Plaintiff’s remaining claims are preempted by Section 301.

WMI’s motion for summary judgment
based on Section 301 preemption is denied.

Conclusion

WMI’s
Motion for Summary Judgment is DENIED.
Triable issues of fact remain as to whether WMI is Plaintiff’s employer
and whether Plaintiff was terminated as a result of age discrimination and/or
in retaliation for complaining about working conditions that he reasonably
believed were legal violations. WMI
fails to establish that Plaintiff’s claims are barred by Section 301 of the
LMRA or that IIED is barred by worker’s compensation exclusivity. For these reasons, WMI also fails to
establish as an issue of law that it did not engage in malicious conduct
through its managing agents for purposes of Civil Code §3294.

WMI’s Motion for Summary
Adjudication is GRANTED as to the Negligent Hiring and Supervision claim and
DENIED as to all other issues and causes of action. Plaintiff’s negligent hiring and supervision
claim is barred by Worker’s Compensation Exclusivity.

It is
so ordered.

Dated: March 13, 2024

_______________________

Rolf M. Treu

Judge of the
Superior Court