Judge: Mel Red Recana, Case: 21STCV29372, Date: 2024-03-12 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: 21STCV29372 Hearing Date: March 12, 2024 Dept: 45
|
DANNY
ALLEN SILVA; Plaintiff, vs. AITAL
CUSTOM GLASS & MIRROR, INC., et al. Defendants. |
Case No.: 21STCV29372
DEPARTMENT
45 [TENTATIVE] RULING Action
Filed: 08/10/21 Trial
Date: TBD |
Hearing Date: March
12, 2024
Moving Party: Defendants
Aital Custom Glass & Mirror, Inc., Larry Shar, and Kevin Jong
Responding Party: Plaintiff Danny Allen Silva
Motion for Summary Judgment or, in the Alternative,
Summary Adjudication
The court has considered the
moving, opposition, and reply papers as well as the amended opposition and
sur-reply.
The court DENIES Defendants’ motion for summary judgment with respect to the Complaint.
The court DENIES Defendants’ motion for summary
adjudication in its entirety as it relates to the Complaint.
Background
This action
arises from an employment dispute. Plaintiff Danny Allen Silva (“Plaintiff”)
filed this action on August 10, 2021 against defendants Aital Custom Glass
& Mirror, Inc. (“Aital”), Larry Shar (“Shar”), and Kevin Jong (“Jong”) (collectively,
“Defendants”). The complaint alleges the following causes of action: (1)
Unlawful Employment Harassment; (2) Unlawful Employment Discrimination; (3)
Wrongful Termination in Violation of Public Policy; (4) Unlawful Retaliation;
and (5) Failure to Prevent Harassment, Discrimination and/or Retaliation.
As
alleged in the complaint, Plaintiff began his employment as a glazier with
Defendants on December 9, 2019. (Compl. ¶ 12.) Defendants Shar, the owner and
CEO of Aital, and Jong, the general manager of Aital, allegedly singled
Plaintiff out and mocked him on the basis of him being a Mexican-American who
lacks the ability to speak Spanish. (Id. at ¶¶ 3-4, 19.) Plaintiff
allegedly received treatment and reprimanding to a grater degree than employees
of Mexican descent who could speak Spanish. (Id. at ¶ 17.) Defendants terminated
Plaintiff on April 3, 2020 due to Plaintiff’s ethnicity, race, inability to
speak Spanish, complaints of unlawful business practices and unsafe working
conditions, and requests for accommodations following the onset of Covid-19. (Id.
at ¶ 74.)
On
September 19, 2023, Defendants filed the instant motion for summary judgment
or, alternatively, summary adjudication. On November 22, 2023, Plaintiff filed his
opposition paper, and thereafter, Plaintiff untimely filed his amended
opposition papers on November 27, 2023. Defendants filed their reply on December
1, 2023.
On
December 7, 2023, the court continued the instant motion pursuant to CCP
437c(h) and permitted Plaintiff to file amended opposition papers in compliance
with CCP 437c(b)(2). The court also permitted Defendants to file amended reply
papers in compliance with CCP § 437c(b)(4).
On
February 21, 2024, Plaintiff filed his amended opposition papers. On March 1,
2024, Defendants filed their sur-reply.
//
//
Legal
Standard
The function of a motion for summary
judgment or adjudication is to allow a determination as to whether an opposing
party cannot show evidentiary support for a pleading or claim and to enable an
order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) In
analyzing motions for summary judgment, courts must apply a three-step
analysis: “(1) identify the issues framed by the pleadings; (2) determine
whether the moving party has negated the opponent's claims; and (3) determine
whether the opposition has demonstrated the existence of a triable, material factual
issue.” (Hinesley v. Oakshade Town Center
(2005) 135 Cal.App.4th 289, 294.)
As
to each claim as framed by the complaint, the defendant moving for summary
judgment must satisfy the initial burden of proof by presenting facts to negate
an essential element, or to establish a defense. (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520.)
Courts “liberally construe the evidence in support of the party opposing
summary judgment and resolve doubts concerning the evidence in favor of that party.”
(Dore v. Arnold Worldwide, Inc. (2006)
39 Cal.4th 384, 389.) A motion for summary judgment must be denied where the
moving party's evidence does not prove all material facts, even in the absence
of any opposition (Leyva v. Sup. Ct. (1985)
164 Cal.App.3d 462, 475) or where the opposition is weak (Salesguevara v. Wyeth Labs., Inc. (1990) 222 Cal.App.3d 379, 384,
387).
Evidentiary
Objections
Plaintiff’s
Evidentiary Objections
The court rules on Plaintiff’s
evidentiary objections as follow:
Declaration of Kevin Jong
1. Objection
No. 1: OVERRULED.
Declaration of Larry Shar
1. Objection
No. 1: OVERRULED.
Declaration of James R. Schroeder
1. Objection
No. 1: OVERRULED.
Defendants’ Evidentiary Objections
The court rules
on Defendants’ evidentiary objections as follows:
Declaration of Lonnie
Haughton
1. Objection
No. 1: OVERRULED;
2. Objection
No. 2: OVERRULED;
3. Objection
No. 3. OVERRULED;
4. Objection
No. 4; OVERRULED;
5. Objection
No. 5: OVERRULED;
6. Objection
No. 6: OVERRULED;
7. Objection
No. 7: OVERRULED;
8. Objection
No. 8: SUSTAINED—Unqualified Expert Opinion;
9. Objection
No. 9: SUSTAINED—Improper Argument;
10. Objection
No. 10: SUSTAINED—Improper Argument;
11. Objection
No. 11: OVERRULED;
12. Objection
No. 12: OVERRULED; and
13. Objection
No. 13: OVERRULED.
//
//
Discussion
Motion
for Summary Judgment or, Alternatively, Summary Adjudication
Defendants move for summary judgment with
respect to the FAC, which alleges the 12 causes of action set forth above.
Alternatively, Defendants move for summary
adjudication as follows:
First Cause of Action – Unlawful
Employment Harassment
Issue
No. 1: Defendants assert that the first cause of action is
without merit as a matter of law because, based on the undisputed
facts, Plaintiff was not subjected to "severe and pervasive" racial
harassment while employed at Aital.
Second Cause of Action – Unlawful Employment
Discrimination
Issue
No. 2: Defendants assert that the second cause of action is
without merit as a matter of law because, based on the undisputed
facts, others not in the protected class were retained in similar jobs and/or
the job was filled by an individual of comparable qualifications not in the
protected class.
Second Cause of Action – Unlawful Employment
Discrimination
Issue
No. 3: Defendants assert that the second cause of action is
without merit as a matter of law because, based on the undisputed
facts, Aital had a legitimate, nondiscriminatory reason for terminating
Plaintiff’s employment, and Plaintiff cannot show that Aital's legitimate, nondiscriminatory
reason was pretext for unlawful race/national origin discrimination.
Third Cause of Action – Wrongful
Termination
Issue
No. 4: Defendants assert that the third cause of action is
without merit as a matter of law because, based on the undisputed
facts, Aital had a legitimate, nondiscriminatory reason for terminating
Plaintiff’s employment, and Plaintiff cannot show that Aital's legitimate,
nondiscriminatory reason was pretext for wrongful termination based on Plaintiff’s
alleged safety complaints.
Fourth Cause of Action – Unlawful Retaliation
Issue
No. 5: Defendants assert that the third cause of action is
without merit as a matter of law because, based on the undisputed
facts, Aital had a legitimate, nondiscriminatory reason for terminating
Plaintiff’s employment, and Plaintiff cannot show that Aital's legitimate,
nondiscriminatory reason was pretext.
Fifth Cause of Action – Failure to
Prevent Harassment, Discrimination, and/or Retaliation
Issue
No. 6: Defendants assert that the third cause of action is
without merit as a matter of law because, based on the undisputed
facts, Plaintiff was not subjected to unlawful harassment, discrimination
and/or retaliation, and Plaintiff cannot show that Aital's legitimate,
nondiscriminatory reason was pretext.
A.
Procedural Issue: Defendants’ objection to Plaintiff’s Separate Statement
Defendants objects to Plaintiff’s responsive
separate statement on the following grounds: (1) it does not respond to each of
the material facts in the instant motion; (2) it does not demonstrated how the
facts identified are disputed; and (3) it does not identify any other
admissible material fact that creates a triable issue. (Sur-Reply at pg. 4.)
Defendants reason that Plaintiff’s response separate statement consists of
improper argument, inapplicable evidence citations, speculative testimony, and
inadmissible evidence. (Id. at pg. 5.) However, the court disagrees with
this assertion. The evidentiary objections levied by Defendants against
Plaintiff’s responsive separate statement and additional material facts do not
comply with the procedural requirements. (CRC, Rule 3.1354(b)-(c) [requirement
of two separate documents, i.e., evidentiary objections and a proposed order on
those objections]; Hodjat v. State Farm Mutual Automobile Ins. Co.
(2012) 211 Cal.App.4th 1, 9 [trial court not required to give a second chance
at filing properly formatted papers].) Furthermore, even if Plaintiff’s
responses statement fails to comply with CRC Rule 3.1350, the court has
discretion to overlook the procedural defect in order to address the merits of
the instant motion. (CCP § 437c(b)(1); Cadlo
v Owens-Illinois Inc. (2004) 125 Cal. App. 4th 513, 523.
B.
First Cause of
Action – Unlawful Employment Harassment (Issue No. 1)
Defendants move for summary adjudication
as to the first cause of action for harassment on the grounds that Plaintiff
cannot establish that he was subjected to “severe and pervasive” racial
harassment by the Defendants while Plaintiff was employed by Aital.
To establish
harassment in violation of the FEHA, a plaintiff must “show []he was subjected
to . . . conduct[] or comments that were (1) unwelcome; (2) because of [a
protected class]; and (3) sufficiently severe or pervasive to alter the
conditions of [his] employment and create an abusive work environment. In addition,
[]he must establish the offending conduct was imputable to [his] employer. (Lyle
v. Warner Brothers Television Productions (2006) 38 Cal.4th 264,
279 (internal citations omitted.) “In determining what constitutes
‘sufficiently pervasive’ harassment, the courts have held that acts of
harassment cannot be occasional, isolated, sporadic, or trivial, rather the
plaintiff must show a concerted pattern of harassment of a repeated, routine or
a generalized nature.” (Fisher v. San Pedro Peninsula Hospital (1989)
214 Cal.App.3d 590, 610.)
Government Code § 12923(b) provides that “[a] single incident of
harassing conduct is sufficient to create a triable issue regarding the
existence of a hostile work environment if the harassing conduct has
unreasonably interfered with the plaintiff’s work performance or created an
intimidating, hostile, or offensive working environment.” Moreover, Government
Code § 12923(a) provides that a hostile work environment is created “when
the harassing conduct sufficiently offends, humiliates, distresses, or intrudes
upon its victim, so as to disrupt the victim’s emotional tranquility in the
workplace, affect the victim’s ability to perform the job as usual, or
otherwise interfere with and undermine the victim’s personal sense of well-being.”
Gov. Code § 12923(e) states: “Harassment cases are rarely appropriate
for disposition on summary judgment. In that regard, the Legislature affirms
the decision in Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th
243 and its observation that hostile working environment cases involve issues
‘not determinable on paper.’ ”
As framed by the
complaint, Plaintiff is a Mexican-American who does not speak Spanish, and as a
result, he was treated less favorably than other employees. (Compl. ¶ 53.) Furthermore,
it alleged that Shar and Jong “singled him out as in groups of Spanish speaking
Mexican employees, and called for mockery and use of disparaging language on
the basis of his ancestry as a Mexican-American without the ability to speak
Spanish.” (Id. at
¶ 54.)
In moving for
summary adjudication, Defendants rely on the following evidence. During Plaintiff’s
employment, Shar had made a singular comment asking why Plaintiff did not speak
Spanish in light of his Mexican heritage. (UMF Nos. 5, 7; Silva Depo at pp.
92:1-93:24.) Additionally, most of Plaintiff’s co-workers were Latino. (UMF No.
4, Silva Depo at pg. 46:11-19.) Furthermore, during work shifts, Plaintiff’s
co-workers would primarily speak Spanish and only talk to Plaintiff in English
when they asked of things from him. (UMF Nos. 11-12, Silva Depo at pg.
92:1-19.) There is no claim that Plaintiff’s co-workers used slurs towards him.
Furthermore, Plaintiff testified that Jong did not make any harassing comments
towards him based on his race. (UMF Nos. 8-10; Silva Depo at pp. 93:1-12,
25-94:2; 119:12-14.)
In consideration of
the evidence presented, the court finds that Defendants have not met their
burden in establishing that there are no triable issues of material fact as to
whether Plaintiff suffered unlawful harassment at work based on his inability
to speak Spanish as a Mexican-American. The court finds that Defendants’
distillation of Plaintiff’s deposition testimony is not entirely accurate, and
it obscures the basis for Plaintiff’s harassment claim. For instance, while
Shar only made a singular comment directed at Plaintiff’s inability to speak Spanish,
Plaintiff elaborated that Shar and his Spanish-speaking co-workers did not like
the fact that Plaintiff did not speak Spanish. (Silva Depo at pg. 92-12-15.) Based
on the conduct of Plaintiff’s co-workers, it can reasonably be inferred that
they were generally ignoring him, unless they had to speak to him with
something work-related. Thus, in construing the evidence in the light most favorable
to Plaintiff, the court reasonably draws the inference that Plaintiff was singled
out by Shar and his co-workers based his inability to speak Spanish, and by
doing so, they interfered with and undermine Plaintiff’s personal sense of
well-being. Therefore, the court finds this evidence is sufficient to show
discriminatory ridicule that is sufficiently severe or pervasive to alter the
conditions of employment and create an abusive working environment. As such, there
are triable issues of material fact for this cause of action. As set forth
above, only a single incident of harassing conduct is needed to establish a
triable issue with regards to hostile work environment under Gov. Code §
12923(b). Further, harassment is rarely appropriate for disposition on summary
judgment under Gov. Code §§ 12923(e).
While the evidence
would suggest that Jong did not partake in any harassing conduct towards
Plaintiff, the instant motion does not separately identify whether the first
cause of action for unlawful employment harassment is without merit as a matter
of law as to Jong. Instead, the first issue identified in the instant motion,
lumps Defendants together. Thus, because summary adjudication is improper as to
Shar and Aital, it would not be proper as to Jong, as well.
The court therefore
DENIES Defendants’ motion for summary adjudication as to the first cause of
action.
C.
Second Cause of
Action – Unlawful Employment Discrimination (Issue Nos. 2-3)
Defendants move for summary adjudication
as to the second cause of action for unlawful employment discrimination on the basis
of race for the following reasons: (1) Plaintiff was not replaced by a non-Latino
worker and the employees employed by Aital in comparable positions were nearly
all Latino; and (2) Aital had a legitimate, nondiscriminatory reasons for its decision
to fire Plaintiff and it was not a pretext for unlawful discrimination.
Within the
context of discrimination and retaliation claims, California follows the burden
shifting analysis of McDonnell Douglas
Corp. v. Green (1973) 411 U.S. 792 to determine whether there are
triable issues of fact for resolution by a jury. At summary judgment, the employer then must
carry the burden of showing the employee’s action has no merit (Code of Civil
Procedure § 437c(p)(2)). It may do so by evidence either: 1) negating an
essential element of the employee’s claim; or 2) showing some legitimate,
nondiscriminatory reason for the action taken against the employee. (Caldwell v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 202.) If defendant meets its burden, the
burden then shifts to the plaintiff to produce substantial evidence that the
employer’s showing was untrue or pretextual by raising at least an inference of
discrimination or retaliation. (Hersant v. California Department of Social Services (1997) 57 Cal App 4th 997, 1004-1005.)
Government Code
§ 12940 provides that it is unlawful for an employer to refuse to hire or
employ a person or to discharge a person from employment, or to discriminate
against the person in compensation or in terms, conditions, or privileges of
employment on the basis of race. (See Gov. Code § 12940(a).) To establish a
claim for discrimination in violation of FEHA, the plaintiff must generally
prove that “(1) he [or she] was a member of a protected class; (2) that he [or
she] was qualified for the position he [or she] sought or was performing
competently in the position he or she held; (3) that he [or she] suffered an
adverse employment action, such as termination, demotion, or denial of an available
job; and (4) some other circumstance suggesting discriminatory motive.” (Guz
v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 355.)
As alleged in
the complaint, Plaintiff claims that he was discriminated against based on in
his inability to speak Spanish as a person of Mexican descent. (Compl. ¶¶
53-57.)
With regard to the first issue, the court
finds that Defendants have failed to meet their burden on summary adjudication
to negate an essential element of this cause of action. For instance, Defendants
rely on evidence that Plaintiff was not replaced by a non-Latino and that most
of the employees employed in comparable positions are Latino. (UMF Nos. 13-15.)
However, this evidence misses the mark because it does not undermine Plaintiff’s
claim that he was discriminated against for not being able to speak Spanish as
a Latino. Additionally, based on the determination above regarding the claim for
unlawful harassment, the court has found that there is an issue of material fact
as to whether Shar had discriminatory animus towards Plaintiff for Plaintiff’s
inability to speak Spanish.
As to the second issue for this cause of
action, Defendants argues that they had a legitimate, non-discriminatory reason
for terminating Plaintiff, and this was demonstrated by Plaintiff’s performance
deficiencies when he improperly installed a window at a jobsite in Santa Monica
that resulted in the window breaking. (UMF Nos. 17-19; Silva Depo at pp.
69:18-70:6, 74:3-77:7.) This caused the general contractor at the jobsite to become
upset and complain to Shar, and it was based on this reason that Shar decided
to terminate Plaintiff. (UMF Nos. 20-22; Shar Decl. ¶¶ 10-11.) However, in
review of cited portions of Plaintiff’s deposition testimony, Defendants have failed
to meet their burden in establishing that there is no triable issue of material
fact that Plaintiff’s termination was due to poor job performance. As stated in
Plaintiff’s deposition testimony, he was tasked with the difficult job of
fitting a window into place with pieces that did not match. (Silva Depo at pp.
74:4-13, 74:22-75:9, 75:14-76-19.) He attempted to call Shar several times to explain
the situation, but he was unable to reach him directly. (Id. at
75:14-76:19.) Instead, another employee, Sigi Rodriguez, instructed Plaintiff
to try to complete the job. (Ibid.) When the glass ultimately broke,
Plaintiff secured the opening with a trash bag and tape, which was the best
Plaintiff could do under the circumstances. (Id.) In reviewing this
evidence in the light most favorable to Plaintiff, the court finds that singular
instance does not establish Defendants had a legitimate, non-discriminatory
reason for terminating Plaintiff. Rather, it creates the inference that Plaintiff
used his skills to best of his ability to perform his job duties, and he
attempted to inform his employer of the difficulties that this particular task
posed. Accordingly, Defendants have failed to meet their burden in establishing
that there are no triable issues of material fact as to this cause of action.
The court therefore DENIES
Defendants’ motion for summary adjudication as to the second cause of action.
D.
Fourth Cause of
Action – Unlawful Retaliation (Issue No. 5.)
Defendants also move for summary
adjudication as to the fourth cause of action for unlawful retaliation on the
grounds that Aital had a legitimate, nondiscriminatory reason for terminating
Plaintiff, and it was not a pretext for Plaintiff’s alleged safety complaints.
“To establish a prima facie case of
retaliation under FEHA, a plaintiff must show (1) he or she engaged in a
‘protected activity,’ (2) the employer subjected the employee to an adverse
employment action, and (3) a causal link existed between the protected activity
and the employer's action. [Citations]” (Nealy v. City of Santa Monica, supra,
234 Cal.App.4th at 380.) Similar requirements are needed to
establish a prima facie case of retaliation under Labor Code § 1102.5. (See McVeigh
v. Recology San Francisco (2013) 213 Cal.App.4th 443, 468.)
Labor Code § 1102.5, subd. (a) provides
that “[a]n employer, or any person acting on behalf of the employer, shall not
make, adopt, any rule, regulation, or policy preventing an employee from [whistleblowing]
if the employee has reasonable cause to believe that the information discloses
a violation…” An employer is prohibited from retaliating against an employee
for disclosing information or believing that the employee disclosed such
information. (Labor Code § 1102.5, subd. (b).)
As framed by the complaint, Plaintiff
claims that he was retaliated for demanding Defendants to end their harassing
and discriminatory conduct as well was making complaints regarding the unsafe
working conditions that were present and requests for accommodations due to the
onset of the Covid-19 pandemic. (Compl. ¶¶ 84-85.) Thus, this cause of action effectively
claims that the alleged retaliation violated Government Code § 12940 and Labor
Code § 1102.5.
In moving for summary adjudication,
Defendants only focus on Plaintiff’s claim for wrongful termination as it
pertains to the alleged violation of Labor Code § 1102.5. It is noted that, even
if the court were to adjudicate this matter in Defendants’ favor, it would not
completely dispose of the entire basis for Plaintiff’s retaliation cause of
action. Nevertheless, because Plaintiff’s fourth cause of action for retaliation
relies on different wrongful acts, they equate to separate causes of action
that are subject to adjudication. (Lilienthal & Fowler v. Super. Ct.
(1993) 12 Cal.App.4th 1848, 1854.) Thus, it is permissible for the court to
determine whether Plaintiff’s wrongful termination claim pursuant to Labor Code
§ 1102.5 is subject to adjudication.
Here, Defendants contend that there
is no causal link between Plaintiff’s alleged protected activity and his termination
because Plaintiff did not make any complaints regarding OSHA violations during
work on the project in Victorville, California directly to Shar or Jong or to
the onsite general contractor, and as a result, Shar was never aware of Plaintiff’s
alleged safety complaints. (UMF Nos. 23-29; Silva Depo at pp. 116:16-25,
129:6-16; 131:14-18, 133:1-13, 267:19-269:5; Jong Decl. at ¶¶ 5, 8; Rodriguez Decl.
at ¶¶ 5, 8; Shar Decl. ¶ 6; Schroeder Decl. ¶¶ 2-4, 6.)
However, while the evidence presented show
that Plaintiff did not directly communicate his safety concerns to Shar or
Jong, Defendant’s evidence establishes that he complained on numerous occasions
to his immediate supervisor at the jobsite, George Ulloa, and informed his
co-workers of the safety issues. (Silva Depo at pp. 130:17-20, 131:3-25.) Additionally,
in a couple instances where George communicated with the office, Plaintiff’s
safety concerns were brushed off for the sake of completing the job. (Id.
at pg. 133:8-13.) Thus, because of Plaintiff’s numerous OSHA related complaints
and that Aital largely did not his concerns seriously, there is an reasonable inference
that Defendants may have believed Plaintiff reported the violations to OSHA. Furthermore,
as stated above, Defendants have not sufficiently established that they had a
legitimate, non-discriminatory reason for terminating Plaintiff. Moreover,
because Plaintiff was terminated in early April and he had been working on the
Victorville project starting in January 2020, the timing of Plaintiff’s termination
creates an inference of retaliation. (Bareno v. San Diego Community College Dist. (2017) 7 Cal.App.5th 546, 571 [“When an
adverse employment action, ‘follows hard on the heels of protected activity,
the timing often is strongly suggestive of retaliation’”].) Therefore, Defendants have failed to meet
their burden in establishing that Plaintiff’s retaliation claim pursuant to
Labor Code § 1102.5 lacks merit as a matter of law.
Accordingly, the court DENIES Defendants’
motion for summary adjudication as to the fourth cause of action.
E.
Third Cause of
Action – Wrongful Termination in Violation of Public Policy (Issue No.4)
Defendants also move for summary
adjudication as to the third cause of action for wrongful termination in
violation of public policy on the grounds that Aital had a legitimate, nondiscriminatory
reason for terminating Plaintiff, and it was not a pretext for Plaintiff’s alleged
safety complaints.
“To establish a termination of employment
in violation of public policy, each of the following must be proved: (1) ... an
employer-employee relationship ... [¶] (2) ... the termination of plaintiff's
employment was a violation of public policy. . . . . [¶] (3) the termination of
employment was a legal cause of [plaintiff's damage]; and (4) The nature and
the extent of [plaintiff's damage].” (Holmes
v. General Dynamics Corp. (1993) 17 Cal.App.4th 1418, 1426, fn. 8.) “In
order to sustain a claim of wrongful discharge in violation of fundamental
public policy, [the claimant] must prove that his dismissal violated a policy
that is (1) fundamental, (2) beneficial for the public, and (3) embodied in a
statute or constitutional provision.” (Turner
v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1256, footnotes omitted.)
As framed by the complaint, Plaintiff
claims that he was wrongfully terminated is based on his “ethnicity, race,
inability to speak Spanish, complaints of unlawful business practices and
unsafe working conditions, and requests for accommodations following the onset
of the deadly COVID-19 virus.” (Compl. ¶ 74.) Thus, this cause of action claims
that the termination violated Government Code § 12940 and Labor Code § 1102.5.
(Id. at ¶ 75.)
In moving for summary adjudication,
Defendants only focus on Plaintiff’s claim for wrongful termination as it
pertains to the alleged violation of Labor Code § 1102.5. As explained above, because
the because Plaintiff’s third cause of action for wrongful termination also
relies on different wrongful acts, they equate to separate causes of action
that are subject to adjudication. (Lilienthal & Fowler v. Super. Ct.
(1993) 12 Cal.App.4th 1848, 1854.) Thus, it is permissible for the court to
determine whether Plaintiff’s wrongful termination claim pursuant to Labor Code
§ 1102.5 is subject to adjudication.
As to the wrongful termination claim under
Government Code § 12940, because Plaintiff’s underlying FEHA claims have
survived summary adjudication, the wrongful termination claim that is premised
on those alleged violations would survive as well. (See Dickson v. Burke Williams (2015) 234 Cal. App. 4th 1307,
1317.) Similarly, with regard to the wrongful termination claim under
Labor Code § 1102.5, Plaintiff’s retaliation claim has survived summary
adjudication, and as a result, the derivative wrongful termination claim also survives.
(Ibid.)
The court therefore DENIES
Defendants’ motion for summary adjudication as to the third cause of action.
Fifth Cause of
Action – Failure to Remedy Discrimination, Harassment, and/or Retaliation
(Issue No. 6)
Lastly, Defendants also move
for summary adjudication as to the fifth cause of action for failure to prevent
or remedy discrimination, harassment, or retaliation on the grounds that
Plaintiff was not subject to unlawful harassment, discrimination, and/or
retaliation, and that Aital had a legitimate, nondiscriminatory reason to terminate
Plaintiff that was not pretextual.
Under the circumstances, because Plaintiff’s underlying FEHA and retaliation
claims survive summary adjudication, it follows that this derivative causes of
action would survive as well. (See Dickson v. Burke Williams (2015) 234
Cal. App. 4th 1307, 1317.)
The court therefore DENIES
Defendants’ motion for summary adjudication as to the fifth cause of action.
Based on the foregoing, the court
DENIES Defendants’ motion for summary judgment with respect to the Complaint. The
court further DENIES Defendants’ motion for summary adjudication in its
entirety.
It is so
ordered.
Dated:
March 12, 2024
_______________________
ROLF M. TREU
Judge of the Superior
Court