Judge Michael P. Linfield, Case 20STCV09497 2023-03-17 Tentative Ruling

Judge: Michael P. Linfield, Case: 20STCV09497, Date: 2023-03-17 Tentative Ruling

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Case Number: 20STCV09497 Hearing Date: March 17, 2023 Dept: 34

SUBJECT: Motion for Summary Judgment or, in the Alternative, Summary Adjudication

Moving Party: Defendant Insperity PEO Services, L.P. (“IPS”)

Resp. Party: Plaintiff Jeremy McDaniel

SUBJECT: Motion for Summary Judgment or, in the Alternative, Summary Adjudication

Moving Party: Defendant FlashCo Manufacturing, Inc. (“FMI”)

Resp. Party: Plaintiff Jeremy McDaniel

Defendant FlashCo Manufacturing, Inc.’s Motion for Summary Judgment or, in the Alternative, Summary Adjudication is GRANTED. Summary judgment is granted in favor of Defendant FlashCo Manufacturing, Inc. and against Plaintiff Jeremy McDaniel.

Defendant Insperity PEO Services, L.P.’s Motion for Summary Judgment or, in the Alternative, Summary Adjudication is DENIED.

BACKGROUND:

On March 9, 2020, Plaintiff Jeremy McDaniel filed his Complaint against Defendants FlashCo Manufacturing, Inc. (“FMI”) and Insperity PEO Services, L.P. (“IPS”) on causes of action arising from Plaintiff’s employment with (and termination by) Defendants.

On July 24, 2020, Plaintiff filed his First Amended Complaint.

On August 25, 2020, Defendant FMI filed its Answer to the First Amended Complaint.

On September 18, 2020, Defendant IPS filed its Answer to the First Amended Complaint.

On February 16, 2021, Defendant IPS filed its Motion for Summary Judgment or, in the Alternative, Summary Adjudication (“IPS Motion”). Defendant IPS concurrently filed: (1) Declaration of Ron Brand; (2) Declaration of Greg Morrow; (3) Declaration of Cindy Bailey; (4) Declaration of Eric Compton; (5) Declaration of Laura Molinari; (6) Separate Statement; (7) Index of Exhibits; (8) Proposed Order; and (9) Proposed Judgment.

On February 16, 2021, Defendant FMI filed its Motion for Summary Judgment or, in the Alternative, Summary Adjudication (“FMI Motion”). Defendant FMI concurrently filed: (1) Declaration of Ron Brand; (2) Declaration of Greg Morrow; (3) Declaration of Cindy Bailey; (4) Declaration of Eric Compton; (5) Declaration of Laura Molinari; (6) Separate Statement; (7) Index of Exhibits; (8) Proposed Order; and (9) Proposed Judgment.

On February 25, 2021, Defendants FMI and IPS each filed: (1) Notice of Errata to Index of Exhibits; and (2) Amended Index of Exhibits.

On April 1, 2021, Defendants FMI and IPS each filed Notice of Errata to IPS Motion.

On April 20, 2021, Plaintiff filed his Opposition to IPS Motion and his Opposition to FMI Motion. With each of the motions, Plaintiff concurrently filed: (1) Separate Statement; (2) Evidentiary Objections; (3) Declaration of Mohamed Eldessouky; (4) Declaration of Jeremy McDaniel; and (5) Compendium of Evidence.

On April 21, 2021, Plaintiff filed a Notice of Errata re: Compendium of Evidence for each motion.

On April 29, 2021, Defendant IPS filed its Reply to IPS Motion. Defendant IPS concurrently filed: (1) Evidentiary Objections; and (2) Response to Separate Statement.

On April 29, 2021, Defendant FMI filed its Reply to FMI Motion. Defendant FMI concurrently filed: (1) Evidentiary Objections; and (2) Response to Separate Statement.

On May 4, 2021, the Court granted the FMI Motion and the IPS Motion.

On June 7, 2021, the Court entered two Judgments: one in favor of Defendant FMI and against Plaintiff, and the other in favor of Defendant IPS and against Plaintiff. The Court dismissed with prejudice Plaintiff’s lawsuit.

On November 9, 2022, the Second Appellate District Court of Appeal affirmed this Court’s granting of summary adjudication of Plaintiff’s first, second, third, fourth, fifth, and eighth causes of action. The Court of Appeal reversed thus Court’s granting summary adjudication of Plaintiff’s sixth, seventh, and ninth causes of action. The Court of Appeal remanded the matter to this Court for further proceedings consistent with its opinion.

ANALYSIS:

I. Legal Standard

“[T]he 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 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. Atl. Richfield Co. (2001) 25 Cal.4th 826, 850.)

“[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.” (Id.; Smith v. Wells Fargo Bank, N.A. (2005) 135 Cal.App.4th 1463, 1474 [summary judgment standards held by Aguilar apply to summary adjudication motions].)

Further, in line with Aguilar v. Atlantic Richfield Co., “[o]n a motion for summary adjudication, the trial court has no discretion to exercise. If a triable issue of material fact exists as to the challenged causes of action, the motion must be denied. If there is no triable issue of fact, the motion must be granted.” (Fisherman's Wharf Bay Cruise Corp. v. Super. Ct. (2003) 114 Cal.App.4th 309, 320.)

“On a summary judgment motion, the court must therefore consider what inferences favoring the opposing party a factfinder could reasonably draw from the evidence. While viewing the evidence in this manner, the court must bear in mind that its primary function is to identify issues rather than to determine issues. Only when the inferences are indisputable may the court decide the issues as a matter of law. If the evidence is in conflict, the factual issues must be resolved by trial.” (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839 [cleaned up].)

Further, “the trial court may not weigh the evidence in the manner of a factfinder to determine whose version is more likely true. Nor may the trial court grant summary judgment based on the court's evaluation of credibility.” (Id. at p. 840 [cleaned up]; see also Weiss v. People ex rel. Dep’t of Transp. (2020) 9 Cal.5th 840, 864 [“Courts deciding motions for summary judgment or summary adjudication may not weigh the evidence but must instead view it in the light most favorable to the opposing party and draw all reasonable inferences in favor of that party”].)

II. Discussion

A. Remaining Issues in the FMI Motion and the IPS Motion

1. Arguments Made in the FMI Motion

Defendant FMI moved for summary judgment on all nine of Plaintiff’s causes of action. (FMI Motion, pp. i–ii.) Defendant FMI argued that summary judgment is appropriate here because:

(1) The first and ninth causes of action fail as a matter of law because:

(a) Plaintiff voluntarily resigned;

(b) Defendant FMI issued the Performance Improvement Plan (“PIP”) for legitimate reasons;

(d) Even assuming Plaintiff did suffer from a disability, there is no evidence Plaintiff was disabled at the time any adverse employment action took place;

(e) To the extent Plaintiff suffered from a disability, Defendant FMI had no knowledge of that disability;

(f) Defendant FMI’s PIP was issued for legitimate, non-retaliatory and non-discriminatory reasons (to rectify Plaintiff’s unsatisfactory job performance);

(2) The second and third causes of action are meritless because there was no need or request for any accommodation;

(3) The fourth, fifth, and eighth causes of action fail because Plaintiff was never unlawfully harassed or discriminated against;

(4) The sixth and seventh causes of action fail because:

(a) The California Family Rights Act (CFRA) was inapplicable to Defendant FMI at all relevant times; and

(b) Even if Defendant FMI was subject to CFRA, there was no violation because Defendant FMI granted Plaintiff all of the requested time off of work and did not take (or threaten to take) an adverse employment action based on Plaintiff’s time off.

(FMI Motion, pp. 9:1–5, 9:23, 10:5–6, 11:12–14, 12:12–13, 13:17–19, 14:23–25, 17:1–5, 19:10–12, 19:24–25, 20:9–12.)

2. Arguments Made in the IPS Motion

Defendant IPS moved for summary judgment on all nine of Plaintiff’s causes of action. (IPS Motion, pp. i–iii.) Defendant IPS argued that summary judgment is appropriate here because:

(1) Defendant IPS was never Plaintiff’s employer; and

(2) Even if Defendant IPS was Plaintiff’s employer, Defendant IPS is not jointly liable because:

(a) Defendant IPS did not know Plaintiff was disabled or needed an accommodation;

(b) Defendant IPS was not involved in the Performance Improvement Plan or Plaintiff’s resignation; and

(c) Defendant IPS was contractually obligated to terminate its co-employment with Plaintiff once he resigned from Defendant FMI.

(IPS Motion, pp. 5:16, 8:23, 9:10–11, 10:21, 11:10–11.)

Defendant IPS also joined in, adopted, and incorporated by reference the arguments made in the FMI Motion. (IPS Motion, p. 121–6.)

3. Remaining Issues

In its previous consideration of this matter, the Court found that “[o]verall, Plaintiff failed to present sufficient evidence to demonstrate that a triable issue of material fact exists as to whether Defendant [FMI] had knowledge that Plaintiff suffered from a disability.” (Minute Order dated May 4, 2021, p. 13.) The Court then granted summary judgment on the FMI Motion. (Id.) Based on the same evidence and reasoning, the Court also granted summary judgment on the IPS Motion. (Id. at p. 16.) Because of the finding on the Defendants’ lack of knowledge of Plaintiff’s alleged disability, the Court did not reach many of the arguments made in the FMI Motion and the IPS Motion.

The Court of Appeal affirmed the judgment with respect to Plaintiff’s first, second, third, fourth, fifth, and eighth causes of action. (Opinion dated November 9, 2022, p. 21.) The Court of Appeal reversed the judgment with respect to Plaintiff’s sixth, seventh, and ninth causes of action. (Id.) The Court of Appeal remanded the matter to this Court for further proceedings because the sixth and seventh causes of action (pursuant to CFRA) do not require knowledge of the disability itself, and the ninth cause of action could be sustained based upon valid CFRA causes of action. (Id. at pp. 17–20.)

Upon considering the Court of Appeal’s instructions on remand and the arguments made by the parties, the remaining issues are: (1) whether summary judgment should be granted for Defendant IPS because it was not Plaintiff’s employer; (2) whether summary adjudication should be granted regarding the sixth and seventh on the grounds that CFRA was inapplicable to Defendants at the relevant times; (3) whether summary adjudication should be granted regarding the sixth and seventh causes of action on the grounds that Defendants violated CFRA; and (4) whether summary adjudication should be granted on the ninth cause of action on the various grounds argued by Defendants.

B. Whether Defendant IPS is a Joint Employer

1. Legal Standard

“A joint-employer relationship exists when ‘two or more employers exert significant control over the same employees—where from the evidence it can be shown that they share or co-determine those matters governing essential terms and conditions of employment.’ A joint-employer relationship is established if an entity retains the right to ‘control both what shall be done and how it shall be done,’ such that it retains the ‘right to control and direct the activities of the person rendering service, or the manner and method in which the work is performed.’ Whether a joint-employer relationship exists is a factual determination that we will uphold if supported by substantial evidence.” (County of Ventura v. Pub. Employment Relations Bd. (2019) 42 Cal.App.5th 443, 450–51, citations and internal quotation marks omitted.)

“There is no magic formula for determining whether an organization is a joint employer. Rather, the court must analyze myriad facts surrounding the employment relationship in question. No one factor is decisive. The precise contours of an employment relationship can only be established by a careful factual inquiry.” (Vernon v. State of Cal. (2004) 116 Cal.App.4th 114, 124–25 [cleaned up].)

“Factors to be taken into account in assessing the relationship of the parties include payment of salary or other employment benefits and Social Security taxes, the ownership of the equipment necessary to performance of the job, the location where the work is performed, the obligation of the defendant to train the employee, the authority of the defendant to hire, transfer, promote, discipline or discharge the employee, the authority to establish work schedules and assignments, the defendant’s discretion to determine the amount of compensation earned by the employee, the skill required of the work performed and the extent to which it is done under the direction of a supervisor, whether the work is part of the defendant’s regular business operations, the skill required in the particular occupation, the duration of the relationship of the parties, and the duration of the plaintiff’s employment.” (Id. at 125 [citations omitted].)

“Of these factors, the extent of the defendant’s right to control the means and manner of the workers’ performance is the most important. In all cases, an employer must be an individual or entity who extends a certain degree of control over the plaintiff.” (Id. at 126, [citations omitted].)

“The common and prevailing principle espoused in all of the tests directs us to consider the ‘totality of circumstances’ that reflect upon the nature of the work relationship of the parties, with emphasis upon the extent to which the defendant controls the plaintiff’s performance of employment duties.” (Id. at 124, [citations omitted].)

2. Discussion

Defendant IPS argues that summary judgment should be granted in its favor because Defendant IPS was never Plaintiff’s employer. (IPS Motion, p. 5:16.) Defendant IPS claims that it had limited interaction with Plaintiff, that it did not have the ability to control any relevant aspect of Plaintiff’s employment with Defendant FMI, and that it had no knowledge of any unique issues or conditions regarding Plaintiff. (Id. at pp. 2:15–17, 3:23–24.)

Plaintiff opposes the IPS Motion, arguing, among other things, that Defendant IPS was Plaintiff’s joint employer. (Opposition to IPS Motion, p. 6:13.) Among multiple pieces of evidence, Plaintiff points to the agreement executed on October 11, 2013, which sets out Plaintiff’s terms of employment. (Id. at p. 2:5–13.)

In its Reply, Defendant IPS discusses at length the factors discussed in Vernon (see above), arguing that assessment of each of these factors favors finding against joint employment. (Reply to IPS Motion, pp. 5–8.) Citing to Futrell v. Payday California, Inc. (2010) 190 Cal.App.4th 1419, 1438, Defendant IPS argues that it is not the label placed on a document that controls a situation but the facts underlying that label.

The Court’s role at this time is to determine whether there are any triable issues of material fact and, if not, whether the moving party is entitled to judgment as a matter of law. (Aguilar, supra, at 850.) The Court may not weigh evidence or grant summary judgment based on an evaluation of credibility. (Binder, supra, at 840.)

Defendant IPS provides the Court with testimonial evidence from Cindy Bailey, a former Senior Human Resources Specialist at Defendant IPS. Cindy Bailey’s Declaration supports Defendant IPS’s arguments that it was not a joint employer. (Decl. Bailey, ¶¶ 6–8, 10–21.) Defendant IPS has met its initial burden of production to make a prima facie showing of the nonexistence of any triable issue of fact.

However, Plaintiff points to the Employment Agreement, which states in relevant part:

“This Agreement is between INSPERITY PEO SERVICES L.P. (“Insperity”), and JEREMY MCDANIEL (“Employee”) pursuant to a Client Service Agreement between Insperity and FLASHCO MANUFACTURING, INC. (“Client Company”) in which Client Company and Insperity have agreed to a co-employment relationship. This Agreement deals only with Employee’s employment with Insperity. Termination of this Agreement may not necessarily terminate Employee’s employment with Client Company.

“1. Employee agrees to perform such duties as shall be determined by Client Company and communicated to Employee by and through an onsite supervisor or designee and notwithstanding any such changes, the employment of Employee shall be construed as continuing under this Agreement, as modified. Pursuant to the co-employment relationship with Client Company, Employee understand[s] and agrees that Insperity reserves a right of direction and control over Employee, including a right to hire or terminate, and a right to resolve workplace disputes not subject to a collective bargaining agreement. However, Insperity does not maintain a right to make decisions or give direction with regard to the products produced or services provided by the Client Company to its customers.

“2. AT-WILL EMPLOYMENT. Employee agrees that Employee’s employment by and payment of compensation through Insperity can be terminated, with or without cause, and without notice, at any time, at the option of either Insperity or Employee. . . .”

(Amended Index of Exhibits in Support of IPS Motion, Ex. 2, p. 1, emphases added.)

The Employment Agreement clearly provides that Defendant IPS was a co-employer with Defendant FMI, and that Defendant IPS retained the power to control Plaintiff’s employment — including hiring and firing Plaintiff and resolving workplace disputes.

The Supreme Court has determined that “what matters under the common law is not how much control a hirer exercises, but how much control the hirer retains the right to exercise.” (Ayala v. Antelope Valley Newspapers, Inc. (2014) 59 Cal.4th 522, 533 [emphases in original]; see also, Taylor v. Fin. Cas. & Sur., Inc. (2021) 67 Cal.App.5th 966, 992 and Mattei v. Corp. Mgmt. Solutions, Inc. (2020) 52 Cal.App.5th 116, 124.)

Plaintiff has met his subsequent burden of production to make a prima facie showing of the existence of a triable issue of material fact — whether Defendant IPS was Plaintiff’s joint employer.

The Court DENIES summary judgment on the grounds that Defendant IPS is not Plaintiff’s joint employer.

C. Applicability of CFRA to Defendants FMI and IPS

1. Legal Standard

a. Law at the Time of Incident

CFRA has been amended multiple times since the facts underlying this cause of action occurred.

The following was the language in CFRA as of April 24, 2018, the date Plaintiff either resigned or was constructively discharged.

“Except as provided in subdivision (b), it shall be an unlawful employment practice for any employer, as defined in paragraph (2) of subdivision (c), to refuse to grant a request by any employee with more than 12 months of service with the employer, and who has at least 1,250 hours of service with the employer during the previous 12-month period, to take up to a total of 12 workweeks in any 12-month period for family care and medical leave. Family care and medical leave requested pursuant to this subdivision shall not be deemed to have been granted unless the employer provides the employee, upon granting the leave request, a guarantee of employment in the same or a comparable position upon the termination of the leave. The commission shall adopt a regulation specifying the elements of a reasonable request.” (Gov. Code, § 12945.2, subd. (a) [effective January 1, 2018 to December 31, 2019].)

“Notwithstanding subdivision (a), it shall not be an unlawful employment practice for an employer to refuse to grant a request for family care and medical leave by an employee if the employer employs less than 50 employees within 75 miles of the worksite where that employee is employed.” (Gov. Code, § 12945.2, subd. (b) [effective January 1, 2018 to December 31, 2019].)

“‘Employer’ means either of the following: (A) Any person who directly employs 50 or more persons to perform services for a wage or salary. (B) The state, and any political or civil subdivision of the state and cities.” (Gov. Code, § 12945.2, subd. (c)(2)(A)–(B) [effective January 1, 2018 to December 31, 2019].)

“It shall be an unlawful employment practice for an employer to refuse to hire, or to discharge, fine, suspend, expel, or discriminate against, any individual because of any of the following: (1) An individual's exercise of the right to family care and medical leave provided by subdivision (a).” (Gov. Code, § 12945.2, subd. (l)(1) [effective January 1, 2018 to December 31, 2019].)

“It shall be an unlawful employment practice for an employer to interfere with, restrain, or deny the exercise of, or the attempt to exercise, any right provided under this section.” (Gov. Code, § 12945.2, subd. (t) [effective January 1, 2018 to December 31, 2019].)

b. Law at the Time the Complaint was Filed

CFRA has since been modified annually. For the purposes of adjudicating this dispute, it suffices to note that the version of the statute on March 9, 2020 (the date Plaintiff filed his Complaint) is substantively identical in the relevant subdivisions. Specifically, the definition of the unlawful practice (subd. (a)), the scope of the employer (subd. (b)), the definition of employer (subd. (c)), the cause of action for retaliation (subd. (l)), and the cause of action for interference (subd. (t)) are substantively identical.

c. Law at the Time the Court of Appeal Ruled

The subsequent versions of CFRA underwent significant revisions. Notably, by the time the Court of Appeal issued its ruling on November 9, 2022 (and even since the Court entered Judgment on June 7, 2021), the following was the statutory text.

“It shall be an unlawful employment practice for any employer, as defined in paragraph (3) of subdivision (b), to refuse to grant a request by any employee with more than 12 months of service with the employer, and who has at least 1,250 hours of service with the employer during the previous 12-month period or who meets the requirements of subdivision (r), to take up to a total of 12 workweeks in any 12-month period for family care and medical leave. Family care and medical leave requested pursuant to this subdivision shall not be deemed to have been granted unless the employer provides the employee, upon granting the leave request, a guarantee of employment in the same or a comparable position upon the termination of the leave. The council shall adopt a regulation specifying the elements of a reasonable request.” (Gov. Code, § 12945.2, subd. (a) [effective January 1, 2022 to December 31, 2022].)

“‘Employer’ means either of the following: (A) Any person who directly employs five or more persons to perform services for a wage or salary. (B) The state, and any political or civil subdivision of the state and cities.” (Gov. Code, § 12945.2, subd. (b)(3)(A)–(B) [effective January 1, 2022 to December 31, 2022].)

“It shall be an unlawful employment practice for an employer to refuse to hire, or to discharge, fine, suspend, expel, or discriminate against, any individual because of any of the following: (1) An individual's exercise of the right to family care and medical leave provided by subdivision (a).” (Gov. Code, § 12945.2, subd. (k)(1) [effective January 1, 2022 to December 31, 2022].)

“It shall be an unlawful employment practice for an employer to interfere with, restrain, or deny the exercise of, or the attempt to exercise, any right provided under this section.” (Gov. Code, § 12945.2, subd. (q) [effective January 1, 2022 to December 31, 2022].)

d. Current Law

The current version of CFRA is substantively identical to the 2021 and 2022 versions of the law.

2. Discussion

a. The Parties’ Arguments

Defendant FMI argues that Plaintiff’s CFRA claims fail because CFRA was inapplicable to Defendant FMI at all relevant times. (FMI Motion, p. 19:24–25.) Specifically, Defendant FMI argues that CFRA did not apply to Defendant FMI because Defendant FMI did not have 50 or more employees within 75 miles of the worksite at the time of the incident, which was a requirement of the law as it was written at the time of the incident. (Id.)

Plaintiff argues that the evidence put forward is insufficient for summary adjudication and that triable issues of fact exist. (Opposition to FMI Motion, pp. 15:27–28, 16:1–3.) Specifically, Plaintiff argues that Defendant FMI may argue that it had less than 50 employees within 75 miles of the worksite, but there is no evidence that Defendant IPS did not have more than 50 employees within 75 miles of the worksite. (Id.)

In its Reply, Defendant FMI reiterates its argument. (Reply to FMI Motion, pp. 9:26–28, 10:1–4.) Defendant FMI also argues: (1) that Plaintiff has not met his burden of proof as to both Defendant IPS being Plaintiff’s employer and Plaintiff’s co-employer with Defendant FMI; and (2) that Plaintiff has failed to provide any evidence regarding the number of Defendant IPS’s employees during Plaintiff’s employment at Defendant FMI. (Id. at p. 10:5–14.)

b. The Relevant Law

The question of which version of CFRA applies is critical to the determination in this case. If the older versions of CFRA are the relevant law, then Defendants FMI and IPS can only be liable if they had at least 50 employees within 75 miles of the worksite where Plaintiff was employed. (Gov. Code, § 12945.2, subd. (b) [effective January 1, 2018 to December 31, 2019].) But if the newer versions of CFRA are the relevant law, then there is no such requirement.

“Generally, statutes operate prospectively only.” (Myers v. Philip Morris Cos., Inc. (2002) 28 Cal.4th 828, 840.)

“This is not to say that a statute may never apply retroactively. A statute's retroactivity is, in the first instance, a policy determination for the Legislature and one to which courts defer absent some constitutional objection to retroactivity. But it has long been established that a statute that interferes with antecedent rights will not operate retroactively unless such retroactivity be the unequivocal and inflexible import of the terms, and the manifest intention of the legislature. A statute may be applied retroactively only if it contains express language of retroactivity or if other sources provide a clear and unavoidable implication that the Legislature intended retroactive application.” (McClung v. Employment Dev. Dep’t. (2004) 34 Cal.4th 467, 475 [cleaned up].)

Here, there is no language in the amended statute that discusses retroactivity. Put differently, there is no express language or other sources that provide a clear and unavoidable implication that the Legislature intended retroactive application when the Legislature repealed the employer size and distance requirement in CFRA.

Thus, the Court applies the version of CFRA that was in force at the time of Plaintiff’s termination (i.e., the version that includes the employer size and distance requirement).

c. The Evidence

The Court agrees with Defendant FMI’s analysis of the burden of proof regarding Defendant FMI.

As previously stated above, “the party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.” (Aguilar, supra, at 850.)

Defendant FMI provided testimonial evidence that Defendant FMI had less than 50 employees working within 75 miles of Plaintiff’s worksite. (Decl. Morrow, ¶ 18; Decl. Compton, ¶ 58.) Plaintiff did not provide any evidence to dispute this evidence.

Moreover, Plaintiff does not point the Court to any authority for the proposition that the Court should combine the number of employees that each co-employer has for the purposes of liability. (Opposition to IPS Motion, pp. 9–10.) While joint employers can both be liable for violations of law, it is not automatic, and the law does not presume that they are liable based on principles of agency or joint and several liability. (See, e.g., Noe v. Super. Ct. (2015) 237 Cal.App.4th 316, 333–34.)

Here, the most that could be said of the joint-employer relationship is: (1) that Defendant FMI (through its employees, like Eric Compton) worked with Defendant IPS (through its employees, like Cindy Bailey) regarding the situation with Plaintiff; and (2) that some of Defendant FMI’s employees also worked for Defendant IPS. Although it may be determined later that Plaintiff worked for both Defendants FMI and IPS, that does not provide authority for combining their respective employee numbers to meet the applicable CFRA requirement.

Defendant FMI has met its burden of proof to demonstrate that ti did not have 50 or more employees within 75 miles of Plaintiff’s worksite, and hence is not covered by CFRA. The Court therefore GRANTS summary adjudication of the sixth and seventh causes of actions regarding Defendant FMI, on the basis that CFRA did not apply to Defendant FMI at the time Plaintiff’s employment ended.

However, neither Defendant provided similar evidence regarding Defendant IPS’s number of employees or locations. Indeed, upon a close review of the evidence submitted, the Court is only able to ascertain that Defendant IPS has more than 80 offices across the United States, including at least one in California. (Decl. Bailey, ¶ 5.) The Court has no evidence before it regarding whether Defendant IPS had at least 50 employees within 75 miles of Plaintiff’s worksite at the time Plaintiff’s employment ended. Thus, Defendant IPS does not meet its initial burden of production.

The Court DENIES summary adjudication of the sixth and seventh cause of actions regarding Defendant IPS on the abovementioned basis.

D. Whether Defendant IPS is Jointly Liable

1. Legal Standard

2. Discussion

Defendant IPS argues that even if Defendant IPS was Plaintiff’s employer, Defendant IPS is not jointly liable because: (1) Defendant IPS did not know Plaintiff was disabled or needed an accommodation; (2) Defendant IPS was not involved in the Performance Improvement Plan or Plaintiff’s resignation; and (3) Defendant IPS was contractually obligated to terminate its co-employment with Plaintiff once he resigned from Defendant FMI. (IPS Motion, pp. 8:23, 9:10–11, 10:21, 11:10–11.)

Plaintiff disagrees, arguing: (1) that Defendant IPS acted in partnership with Defendant FMI with respect to Plaintiff’s claims; (2) that Defendant IPS knew of Plaintiff’s disability and/or need for accommodation; (3) that Defendant IPS was involved in Plaintiff’s adverse employment actions; and (4) that Defendant IPS could have continued its employment relationship with Plaintiff. (Opposition to IPS Motion, p. 11:1–17.)

In its Reply, Defendant IPS reiterates it arguments. Defendant IPS further argues that Plaintiff must provide evidence that Defendant IPS must provide evidence that Defendant IPS acted with prohibited animus to defeat summary judgment. (Reply to IPS Motion, p. 2:1–3.)

The Court previously found that Plaintiff did not present evidence that Defendant IPS knew Plaintiff was disabled, and the Court of Appeal affirmed rulings based on that finding. The Court does not revisit that finding here.

a. CFRA Interference Claim

Among other things, Plaintiff points to an email he sent on April 23, 2018 to his supervisor, Eric Compton, regarding time off that morning to deal with a family issue. (Decl. McDaniel, ¶ 27.) Based on subsequent events, Plaintiff believed he was constructively discharged on April 23, 2018, and Plaintiff later requested the severance Mr. Compton had previously offered. (Id. at ¶¶ 28–30; Opposition to FMI Motion, p. 10:3–9.)

Further, the evidence submitted is that Cindy Bailey, a Human Resource Specialist with Defendant IPS, discussed the underlying issues with Mr. Compton prior to the alleged constructive discharge. (See Plaintiff’s Compendium of Evidence, Exs. A [listed as FlashCo 000125–000126], C [Deposition of Eric Compton, dated 2/25/2021, pp. 66–68 and FlashCo 000142].)

This evidence and argument — that Plaintiff was denied the exercise of time off to care for his family, and that Defendant IPS was involved — is sufficient for the Court to determine that triable issues of material fact exist.

The Court DENIES summary adjudication on the sixth cause of action (interference in violation of CFRA) regarding Defendant IPS.

b. CFRA Retaliation Claim

The same evidence discussed above applies here. Further, Plaintiff exercised medical leave prior to his alleged constructive discharge. (The evidence regarding Defendant IPS involvement is the same.) This evidence and argument — that Plaintiff was discharged because of his exercise of his right to family care and medical leave, and that Defendant IPS was involved — is sufficient for the Court to determine that triable issues of material fact exist.

The Court DENIES summary adjudication on the seventh cause of action (retaliation in violation of CFRA) regarding Defendant IPS.

E. Wrongful Termination in Violation of Public Policy

1. Legal Standard

“The elements of a claim for wrongful discharge in violation of public policy are (1) an employer-employee relationship, (2) the employer terminated the plaintiff’s employment, (3) the termination was substantially motivated by a violation of public policy, and (4) the discharge caused the plaintiff harm.” (Nosal-Tabor v. Sharp Chula Vista Med. Ctr. (2015) 239 Cal.App.4th 1224, 1234, citation omitted.)

“[F]or a policy to support a wrongful discharge claim, it must be: (1) delineated in either constitutional or statutory provisions; (2) ‘public’ in the sense that it ‘inures to the benefit of the public’ rather than serving merely the interests of the individual; (3) well established at the time of the discharge; and (4) substantial and fundamental.” (Stevenson v. Super. Ct. (1997) 16 Cal.4th 880, 894.)

2. Discussion

Plaintiff submitted evidence to the Court that indicates: (1) there was an employer-employee relationship between Plaintiff and Defendants FMI, and that there was an employer-employee relationship between Plaintiff and Defendant IPS; (2) that Defendants FMI and IPS constructively discharged Plaintiff, resulting in a termination of Plaintiff’s employment; (3) that the termination was substantially motivated by violations of CFRA when Plaintiff took and attempted to take time off for family leave and medical leave; and (4) that the discharge caused Plaintiff harm.

This is sufficient for the Court to determine that triable issues of material fact exist.

The Court DENIES summary adjudication on the ninth cause of action (wrongful termination in violation of public policy) regarding Defendant IPS.

III. Conclusion

Defendant Insperity PEO Services, L.P.’s Motion for Summary Judgment or, in the Alternative, Summary Adjudication is DENIED.