Judge Michael P. Linfield, Case 20STCV36800 2023-02-23 Tentative Ruling

Judge: Michael P. Linfield, Case: 20STCV36800, Date: 2023-02-23 Tentative Ruling

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

Defendant’s Motion is GRANTED in part. Summary judgment is DENIED. Summary adjudication is GRANTED as to the fifth cause of action (retaliation in violation of the FEHA), sixth cause of action (negligent supervision), seventh cause of action (whistleblower retaliation), eighth cause of action (promissory estoppel), ninth cause of action (fraud and concealment), tenth cause of action (defamation) eleventh cause of action (IIED), twelfth cause of action (UCL) and thirteenth cause of action (declaratory relief). Summary adjudication is DENIED as to all other causes of action and as to the prayer for punitive damages.

According to Plaintiff, she “does not oppose summary adjudication on Plaintiff’s Claims for Retaliation, Violation of California Labor Code Section 1102.5, Promissory Estoppel, Fraud Concealment, Unfair Competition, Intentional Infliction of Emotional Distress, Negligent Supervision and Declaratory Relief.” (Opposition, p. 1:15-18.)

The Court does not understand why Plaintiff did not dismiss these causes of action previously. Had she done so, she would not have required Defendant (and the Court) to spend their time analyzing a Motion for Summary Adjudication as to these causes of action.

The Court also notes that Defendant’s opening brief is 32 pages long and Plaintiff’s Opposition is 21 pages long. Under the California Rules of Court, neither a Motion for Summary Judgment nor an Opposition to a Motion for Summary Judgment may be longer than 20 pages. (CRC 3.1113(d).) Although the Court has considered both the motion and opposition in its entirety, the Court advises counsel to be more careful in the future.

On December 8, 2022, Defendant filed its Motion for Summary Judgment or, in the Alternative, Summary Adjudication. Defendant concurrently filed: (1) Memorandum of Points and Authorities; (2) Statement of Undisputed Material Facts; (3) Compendium of Evidence; (4) Appendix of Federal Authorities; and (5) Proposed Order.

On February 9, 2023, Plaintiff filed her Opposition. Plaintiff concurrently filed: (1) Separate Statement of Disputed Material Facts; (2) Compendium of Evidence; and (3) Evidentiary Objections and Proposed Order.

On February 16, 2023, Defendant filed its Reply. Defendant concurrently filed: (1) Response to Plaintiff’s Separate Statement; and (2) Objections to Purported Evidence.

Plaintiff filed her Evidentiary Objections to two declarations Defendant submitted in support of the Motion. The following are the Court’s rulings to the Evidentiary Objections.

Plaintiff filed Objections to multiple declarations Plaintiff submitted in opposition to the Motion. The following are the Court’s rulings as to the Objections.

Objection
1		OVERRULED
2		OVERRULED
3		OVERRULED
4		OVERRULED
5		OVERRULED
6		OVERRULED
7		OVERRULED
8		OVERRULED
9		OVERRULED
10		OVERRULED
11		OVERRULED
12		OVERRULED
13		OVERRULED
14		OVERRULED
15		OVERRULED
16		OVERRULED
17		OVERRULED
18		OVERRULED
19		OVERRULED
20		OVERRULED
21		OVERRULED
22		OVERRULED
23		OVERRULED
24		OVERRULED
25		OVERRULED
26		OVERRULED
27		OVERRULED
28		OVERRULED
29		OVERRULED
30		OVERRULED
31		OVERRULED
32		OVERRULED
33		OVERRULED
34		OVERRULED
35		OVERRULED
36		OVERRULED
37		OVERRULED
38		OVERRULED
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40		OVERRULED
41		OVERRULED
42		OVERRULED
43		OVERRULED
44		OVERRULED
45		OVERRULED
46		OVERRULED
47		OVERRULED
48		OVERRULED
49		OVERRULED
50		OVERRULED
51		OVERRULED
52		OVERRULED
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60		OVERRULED
61		OVERRULED
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63		OVERRULED
64		OVERRULED
65		OVERRULED
66		OVERRULED
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68		OVERRULED
69		OVERRULED
70		OVERRULED
71		OVERRULED
72		OVERRULED
73		OVERRULED
74		OVERRULED
75		OVERRULED
76		OVERRULED
77		OVERRULED
78		OVERRULED
79		OVERRULED
80		OVERRULED
81		OVERRULED

Most of Defendant’s evidentiary objections are frivolous. “[B]lunderbuss objections to virtually every item of evidence . . . is hardly good advocacy, and it unnecessarily overburdens the trial court.” (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 254, fn. 3.) “We sometimes ‘hear’ that a common practice in cases staffed by multiple levels of lawyers is to assign the most junior lawyer to ‘do the objections’. . . .” (Id. at fn. 6.) That was not done here; in this case, the objections were submitted by a principal of defendant’s law firm with 14 years of practice. Nonetheless, “[p]erhaps a wiser practice would be to have the most experienced lawyer, presumably with a better understanding of the law of evidence, deal with the objections.” (Id.)

“[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. Atlantic 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”].)

Defendant moves for summary judgment, or in the alternative summary adjudication of each of Plaintiff’s 13 causes of action, as well as of her claim for punitive damages.

“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.)

Defendant argues that Plaintiff cannot establish a valid claim for her first cause of action (wrongful termination in violation of public policy) because Plaintiff cannot prove that she was terminated in violation of public policy rather than her own unprofessional conduct. (Memorandum, p. 26:10-17.)

Plaintiff disagrees, arguing that the termination was substantially motivated by Plaintiff’s race and/or national origin. (Opposition, p. 19:14-20.)

There is no dispute that Defendant employed Plaintiff or that Defendant terminated Plaintiff’s employment. (Separate Statements, ¶¶ 8, 12, 63.) There is also no dispute about damages: the facts alleged by Plaintiff show that she suffered lost wages and emotional damages including an emotional breakdown after being terminated. (Defendant’s Response to Plaintiff’s Separate Statement, ¶ 42.)

“Policies against race and sex discrimination are among the state and nation's most fundamental and substantial public policies . . . .” (Phillips v. St. Mary Reg’l Med. Ctr. (2002) 96 Cal.App.4^th 218, 238, footnotes omitted.)

Racial discrimination in violation of the Fair Employment and Housing Act (“FEHA”) is a violation of public policy sufficient to support a wrongful discharge claim. Plaintiff’s declaration alleges that Defendant engaged in racial discrimination when firing Plaintiff. Whether the termination was substantially motivated by racial discrimination in violation of public policy is a triable issue of material fact.

The Court DENIES summary adjudication as to the first cause of action for wrongful termination in violation of public policy.

“It is an unlawful employment practice, unless based upon a bona fide occupational qualification . . . [f]or an employer, because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, reproductive health decisionmaking, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or veteran or military status of any person, to refuse to hire or employ the person or to refuse to select the person for a training program leading to employment, or to bar or 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.” (Gov. Code, § 12940, subd. (a).)

“[A] plaintiff has the initial burden to make a prima facie case of discrimination by showing that it is more likely than not that the employer has taken an adverse employment action based on a prohibited criterion. A prima facie case establishes a presumption of discrimination. The employer may rebut the presumption by producing evidence that its action was taken for a legitimate, nondiscriminatory reason. If the employer discharges this burden, the presumption of discrimination disappears. The plaintiff must then show that the employer's proffered nondiscriminatory reason was actually a pretext for discrimination, and the plaintiff may offer any other evidence of discriminatory motive. The ultimate burden of persuasion on the issue of discrimination remains with the plaintiff.” (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 214–15, citing Guz v. Bechtel Nat’l, Inc. (2000) 24 Cal.4th 317.)

Defendant argues that Plaintiff cannot establish a valid claim for her second cause of action (race/national origin discrimination) because: (1) Plaintiff cannot present direct evidence of discrimination; (2) Plaintiff cannot establish a prima facie case of race/national origin discrimination; (3) Plaintiff failed to perform her job satisfactorily; (4) there is no causal connection between Plaintiff’s protected classification and any alleged employment action; (5) Defendant articulated a legitimate, non-discriminatory reason for Plaintiff’s termination; (6) Plaintiff cannot establish that Defendant’s proffered reason for her termination is a pretext for race or national origin discrimination; and (7) the “same actor inference” supports a finding of nondiscrimination. (Memorandum, pp. 16:2–3, 16:16, 16:25–26, 17:10, 17:26–27, 18:22–23, 19:19–20, 21:5.)

Plaintiff disagrees, arguing: (1) there are triable issues of material fact; (2) that Plaintiff established a prima facie case; (3) there was a causal connection between Plaintiff’s race and her termination; (4) Plaintiff has proved pretext; and (5) the same actor inference does not support a finding of non-discrimination. (Opposition, pp. 13:13–15, 14:24, 15:13, 17:5.)

Defendant makes new arguments in its Reply, including: (1) that Plaintiff’s subjective belief and opinion cannot create a triable issue of material fact; and (2) that the declarations of other individuals who allegedly faced racial discrimination when working for Defendant do not create triable issues. (Reply, pp. 9:25–26, 11:3–4.)

Through her declaration and the other declarations provided in support of her Opposition, Plaintiff meets her initial burden of proving a prima facie case of race discrimination by showing that it is more likely than not that Defendant terminated her based on her race. Such allegations in support of this finding include the warnings from the dance teachers and the janitor for Plaintiff to be mindful of her race, the calling of police to escort Plaintiff, the question by Ms. Christopher asking whether Plaintiff really wanted to work in a place where they treated her as Defendant had, and Ms. Crompton telling Plaintiff that something was not right. (Plaintiff’s Compendium of Evidence, Decl. Kates, ¶¶ 37, 68, 73, 74.) The Court disagrees with Defendant’s argument that Plaintiff’s own beliefs and experiences are not to be considered when evaluating whether unlawful discrimination occurred.

Plaintiff’s declaration is buttressed by others’ alleged incidents of racial discrimination, both shortly before and after Plaintiff’s brief employment with Defendant. (Plaintiff’s Compendium of Evidence: Decl. Green, ¶ 7; Decl. Johnson, ¶¶ 6, 8; Decl. Simmons, ¶¶ 8, 9.) The Court disagrees with Defendant’s argument that these declarations (what Defendant calls “me-too evidence”) are not to be considered in a Motion for Summary Adjudication.

However, Defendant has presented evidence that would indicate there was a nondiscriminatory reason for Plaintiff’s firing. While the termination letter does not mention any complaints lodged against Plaintiff, the Declaration of Voelkel and the email from Michael Voelkel to Russel Howard indicate that Plaintiff had been on her phone, not supervising students, wearing sunglasses during indoor meetings, and appeared disinterested in teaching. (Defendant’s Compendium of Evidence, Decl. Voelkel, ¶¶ 4–5, 7–9 and Ex. K.) Notably, no formal complaints were provided, and the email is dated August 16, 2018 — the day after Plaintiff was terminated. The credibility of Defendant’s evidence is at issue.

The Court finds that there are multiple triable issues of material fact as to whether discrimination in violation of the FEHA occurred.

The Court DENIES summary adjudication as to the second cause of action for racial/national origin discrimination in violation of the FEHA.

“It is an unlawful employment practice . . . [f]or an employer . . . or any other person, because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or veteran or military status, to harass an employee, an applicant, an unpaid intern or volunteer, or a person providing services pursuant to a contract. Harassment of an employee . . . shall be unlawful if the entity, or its agents or supervisors, knows or should have known of this conduct and fails to take immediate and appropriate corrective action. . . . An entity shall take all reasonable steps to prevent harassment from occurring. Loss of tangible job benefits shall not be necessary in order to establish harassment.” (Gov. Code, § 12940, subd. (j).)

“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.” (Gov. Code, § 12923, subd. (b).)

“The existence of a hostile work environment depends upon the totality of the circumstances and a discriminatory remark, even if not made directly in the context of an employment decision or uttered by a nondecisionmaker, may be relevant, circumstantial evidence of discrimination.” (Gov. Code, § 12923, subd. (c).)

Defendant argues that Plaintiff cannot establish a valid claim for her third cause of action (race-based harassment) because: (1) Plaintiff cannot identify any conduct or action directed toward her on the basis of her race that could rise to the level of harassment; and (2) Plaintiff’s allegations are not severe or pervasive enough to rise to the level of actionable harassment. (Memorandum, p. 24:4–11.)

Plaintiff disagrees, arguing that she was subjected to multiple instances of discrimination in a short period of time, sufficient for a reasonable juror to determine the pervasiveness or severity of Defendant’s conduct. (Opposition, p. 18:15–20.) Plaintiff specifically points to being mistreated by Ms. Foley and Mr. Marsden, being provided late assignments, being set up for failure by not being given the necessary resources to conduct her class, was excluded by the administration because of her race, and was told she was not a good fit. (Id.)

Defendant reiterates its arguments in its Reply, as well as arguing that the decision to terminate Plaintiff was a matter of personnel management and is not, without more, actionable as harassment. (Reply, p. 13:6–19.)

“[H]arassment often does not involve any official exercise of delegated power on behalf of the employer. . . . Thus, harassment focuses on situations in which the social environment of the workplace becomes intolerable because the harassment (whether verbal, physical, or visual) communicates an offensive message to the harassed employee.” (Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 706, emphasis in original.)

Further, “some official employment actions done in furtherance of a supervisor's managerial role can also have a secondary effect of communicating a hostile message. This occurs when the actions establish a widespread pattern of bias.” (Roby, supra, at 709, citing Miller v. Dep’t of Corr. (2005) 36 Cal.4th 446, 466.)

Plaintiff declares that she encountered harassment while employed with Defendant. She points to verbal harassment (by Ms. Foley, who was irritated with her regarding the coaching position, and by Ms. Nguyen, who told Plaintiff she was not a good fit), visual harassment (by Mr. Marsden, who ignored her at a meeting), and the absence of action (by being excluded based on her race and by not being given the necessary resources to conduct her class). Plaintiff also declared that she was told by multiple people to mind her race (by the dance teachers and the janitor) and that something was not right (by Ms. Crompton). Other declarants discussed the harassment they faced while working for Defendant in the periods before and after Plaintiff worked for Defendant.

A reasonable trier of fact could determine that actionable, race-based harassment occurred based upon this alleged conduct. Thus, whether Defendant engaged in conduct that reached the level of actionable, race-based harassment is a triable issue of material fact.

The Court DENIES summary adjudication as to the third cause of action for race-based harassment in violation of the FEHA.

D. Failure to Prevent, Investigate, and/or Remedy Unlawful Harassment, Discrimination, and Retaliation

The elements of a cause of action for failure to prevent harassment or retaliation are: (1) actionable discrimination or harassment by employees or nonemployees; (2) defendant’s legal duty of care toward plaintiff (i.e., defendant is the plaintiff’s employer); (3) breach of that duty (i.e., failure to take all reasonable steps necessary to prevent discrimination and harassment from occurring); (4) legal causation; and (5) damages to plaintiff. (Trujillo v. N. County Transit Dist. (1998) 63 Cal.App.4th 280, 287, 289; Bradley v. Dep’t of Corr. & Rehab. (2008) 158 Cal.App.4th 1612, 1630; Gov. Code, § 12940.)

Defendant argues that Plaintiff cannot establish a valid claim for her fourth cause of action (failure to prevent, investigate, and/or remedy unlawful harassment, discrimination, and retaliation) because: (1) the prior causes of action failed; and (2) Defendant has repeater teacher trainings, makes it a priority to keep teachers updated on race issues, maintains compliant policies, and is committed to an equal opportunity environment. (Memorandum, pp. 24:23–28, 25:1–3.)

Plaintiff argues that she meets this cause of action because she met the prior causes of action. (Opposition, p. 18:26–28.)

Here, there remain causes of action for discrimination and harassment, Defendant had a legal duty of care toward Plaintiff as her employer, and Plaintiff alleges that Defendant has breached that duty in a way that caused Plaintiff damages. These allegations are material issues of triable fact that, if proven, are sufficient for a cause of action for failure to prevent unlawful harassment, discrimination, or retaliation. If Defendant failed to prevent, investigate, and/or remedy unlawful harassment, discrimination, and/or retaliation, it is irrelevant – at the Motion for Summary Adjudication stage – that Defendant has anti-racial-harassment trainings

The Court DENIES summary adjudication as to the fourth cause of action for failure to prevent discrimination, harassment, or retaliation.

“To establish a prima facie case of retaliation under the [Fair Employment and Housing Act] 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.” (Meeks v. Autozone, Inc. (2018) 24 Cal.App.5th 855, 878–79, brackets omitted.) “An ‘adverse employment action,’ which is a critical component of a retaliation claim, requires a substantial adverse change in the terms and conditions of the plaintiff’s employment.” (Holmes v. Petrovich Dev. Co., LLC (2011) 191 Cal.App.4th 1047, 1063, quotation marks omitted.)

Defendant argues that Plaintiff cannot establish a valid claim for her fifth cause of action (retaliation) because: (1) Plaintiff did not engage in any protected activity; and (2) Plaintiff fails to show a causal link between her employment termination and a protected activity. (Memorandum, p. 22:6, 22:23–24.)

Plaintiff does not oppose summary adjudication as to this cause of action. (Opposition, p. 1:15–18.)

The Court agrees with Defendant’s argument. There is no allegation that Plaintiff has engaged in a “protected activity” as that term is used in the relevant section of the FEHA.

The Court GRANTS summary adjudication as to the fifth cause of action for retaliation.

The elements of a cause of action for negligent hiring, retention, or supervision are: (1) the employer’s hiring, retaining, or supervising an employee; (2) the employee was incompetent or unfit; (3) the employer had reason to believe undue risk of harm would exist because of the employment; and (4) harm occurs. (Evan F. v. Hughson United Methodist Church (1992) 8 Cal.App.4th 828, 836–37.)

Defendant argues that Plaintiff cannot establish a valid claim for her sixth cause of action (negligent supervision) because Plaintiff cannot present evidence to prove Defendant knew or should have known that any employee had a proclivity for misconduct or that any misconduct occurred. (Memorandum, p. 30:14–16.)

Plaintiff does not oppose summary adjudication as to this cause of action. (Opposition, p. 1:15–18.)

The Court agrees with Defendant’s argument. There is no allegation that Defendant knew or had reason to believe that any of the employees Plaintiff discusses posed an undue risk of harm because of their employment.

The Court GRANTS summary adjudication as to the sixth cause of action for negligent supervision.

“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 government or law enforcement agency, to a person with authority over the employee or another employee who has the authority to investigate, discover, or correct the violation or noncompliance, or for providing information to, or testifying before, any public body conducting an investigation, hearing, or inquiry, 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.” (Lab. Code, § 1102.5, subd. (b).)

Defendant argues that Plaintiff cannot establish a valid claim for her seventh cause of action (whistleblower retaliation) because, among other things, Plaintiff did not complain prior to being terminated. (Memorandum, p. 25:15–24.)

Plaintiff does not oppose summary adjudication as to this cause of action. (Opposition, p. 1:15–18.)

The Court agrees with Defendant’s argument. There is no allegation that Plaintiff disclosed information to Defendant prior to being terminated or that Defendant acted on a belief that Defendant disclosed information prior to terminating Plaintiff.

The Court GRANTS summary adjudication as to the seventh cause of action for whistleblower retaliation.

“The elements of a promissory estoppel claim are (1) a promise clear and unambiguous in its terms; (2) reliance by the party to whom the promise is made; (3) the reliance must be both reasonable and foreseeable; and (4) the party asserting the estoppel must be injured by his reliance.” (Flintco Pac., Inc. v. TEC Mgmt. Consultants, Inc. (2016) 1 Cal.App.5th 727, 734, quotation marks and brackets omitted.)

Defendant argues that Plaintiff cannot establish a valid claim for her eighth cause of action (promissory estoppel) because there was no promise of employment but rather an at-will employment based on a two-year probationary period. (Memorandum, p. 27:15–20.)

Plaintiff does not oppose summary adjudication as to this cause of action. (Opposition, p. 1:15–18.)

The Court agrees with Defendant’s argument. There is no allegation that Defendant made a promise to Plaintiff. As it relates to that employment, there is no allegation that Plaintiff was damaged by her reliance on the promise of at-will employment.

The Court GRANTS summary adjudication as to the eighth cause of action for promissory estoppel.

“The elements of fraud are (a) a misrepresentation (false representation, concealment, or nondisclosure); (b) scienter or knowledge of its falsity; (c) intent to induce reliance; (d) justifiable reliance; and (e) resulting damage.” (Hinesley v. Oakshade Town Ctr. (2005) 135 Cal.App.4th 289, 294.)¿¿

The facts constituting the alleged fraud must be alleged factually and specifically as to every element of fraud, as the policy of “liberal construction” of the pleadings will not ordinarily be invoked. (Lazar v. Super. Ct. (1996) 12 Cal.4th 631, 645.)¿¿

Defendant makes the same argument regarding fraud that it did for promissory estoppel: that Plaintiff cannot establish a valid claim for her ninth cause of action (fraud and concealment) because there was no promise of employment but rather an at-will employment based on a two-year probationary period. (Memorandum, p. 27:15–20.)

Plaintiff does not oppose summary adjudication as to this cause of action. (Opposition, p. 1:15–18.)

The Court agrees with Defendant’s argument. There is no allegation that Defendant made a misrepresentation to Plaintiff, much less a misrepresentation that induced Defendant’s reliance.

The Court GRANTS summary adjudication as to the ninth cause of action for fraud and concealment.

“‘The sine qua non of recovery for defamation . . . is the existence of falsehood.’ Because the statement must contain a provable falsehood, courts distinguish between statements of fact and statements of opinion¿for purposes of defamation liability.¿Although statements of fact may be actionable as libel, statements of opinion are constitutionally protected.” (Id., quoting Letter Carriers v. Austin (1974) 418 U.S. 264, 283, italics omitted.)

“[T]he question is not strictly whether the published statement is fact or opinion. Rather, the dispositive question is whether a reasonable fact finder could conclude the published statement declares or implies a provably false assertion of fact.” (Franklin v. Dynamic Details, Inc. (2004) 116 Cal.App.4th 375, 385, citations omitted.)

“Whether a statement declares or implies a provable false assertion of fact is a question of law for the court to decide, unless the statement is susceptible of both an innocent and a libelous meaning, in which case the jury must decide how the statement was understood.” (Id.)

“To determine whether a statement is actionable fact or nonactionable opinion, we apply a totality of the circumstances test pursuant to which we consider both the language of the statement itself and the context in which it is made.” (Summit Bank v. Rogers (2012) 206 Cal.App.4th 669, 696, citation omitted.)

Plaintiff basis her tenth cause of action for defamation on Ms. Nguyen, a human resource representative, stating that Plaintiff was not “good fit” in Dean Howard’s presence. Defendant argues that Plaintiff cannot maintain this cause of action because the alleged defamatory statement (1) did not assign a reprehensible characteristic to Plaintiff; (2) was not a published statement; (3) was a subjective statement; and (4) has not been proven to be false. (Memorandum, p. 28:17–26.)

Plaintiff disagrees, arguing: (1) that the statement was published as it was first told by Ms. Nguyen in front of Mr. Howard and then later published to Ms. Ianessa; (2) that the statement was not true because Plaintiff was terminated because of her race and not because she was not a good fit; and (3) that the statement is false. (Opposition, p. 20:3–11.)

The dispositive question is whether saying that someone is not a “good fit” is defamatory. Plaintiff testifies that, “When I went into [Dean Howard’s] office, Amy Nguyen was there. . . . Ms. Nguyen presented a letter to me. Ms. Nguyen proceeded to tell me that they were not going into contract with me [sic] as I was not a ‘good fit.’” (Kates Declaration, ¶ 61.)

However, such a statement is not defamatory – it is not a statement of fact that could be proven to be true or false. Further, the statement that Plaintiff is not a “good fit” does not have “a natural tendency to injure” her. (Reed v. Gallagher (2016) 248 Cal.App.4th 841, 855.) Even calling someone a “crook” or an “unscrupulous lawyer” has been held to be an expression of opinion. (Id. at p. 846-847.)

Plaintiff appears to be arguing that the statement that she was not a “good fit” was defamatory because it was untrue; in particular, Defendant was firing her because of discriminatory reasons, not because she was not a “good fit.” Such alleged falsity might be admissible for purposes of showing a discriminatory firing; it is not the basis for a defamatory action.

The Court GRANTS summary adjudication as to the tenth cause of action for defamation.

“The elements of a prima facie case for the tort of intentional infliction of emotional distress are: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct. Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.” (Wilson v. Hynek (2012) 207 Cal.App.4th 999, 1009, citation and ellipses omitted.)

Defendant argues that Plaintiff cannot establish a valid claim for her eleventh cause of action (intentional infliction of emotional distress [“IIED”]) because: (1) the claim fails for the same reason the discrimination and retaliation claims fail; (2) Plaintiff cannot show that Defendant’s conduct was extreme and outrageous, or that she was singled out or subjected to conduct that was so extreme that exceeds all bounds of decency; (3) there is no evidence that Plaintiff suffered the type of severe emotional distress of such a quality that no reasonable person could be expected to endure; (4) that Plaintiff admits she never sought treatment for her alleged emotional distress; and (5) that the Workers’ Compensation Act typically provides the sole and exclusive remedy of an employee against an employer for injuries sustained in the workplace, including claims for negligence. (Memorandum, p. 29:4–26.)

Plaintiff does not oppose summary adjudication as to this cause of action. (Opposition, p. 1:15–18.)

Inasmuch as Plaintiff does not oppose dismissing this cause of action, the Court GRANTS summary adjudication as to Plaintiff’s eleventh cause of action for IIED.

To set forth a claim for a violation of Business and Professions Code section 17200 (“UCL”), Plaintiff must establish Defendant was engaged in an “unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising” and certain specific acts. (Bus. & Prof. Code, § 17200.) A cause of action for unfair competition “is not an all-purpose substitute for a tort or contract action.” (Cortez v. Purolator Air Filtration Products Co. (2000) 23 Cal.4th 163, 173.)

Defendant argues that Plaintiff cannot establish a valid claim for her twelfth cause of action (promissory estoppel) because it is derivative of her other claims and fails as a matter of law for the same reasons. (Memorandum, p. 30:18–20.)

Plaintiff does not oppose summary adjudication as to this cause of action. (Opposition, p. 1:15–18.)

The Court agrees with Defendant’s argument. There is no allegation that Defendant engaged in an unlawful business practice aside from the violations of the FEHA.

The Court GRANTS summary adjudication as to the twelfth cause of action for violation of the Unfair Competition Law.

“To qualify for declaratory relief, a party would have to demonstrate its action presented two essential elements: (1) a proper subject of declaratory relief, and (2) an actual controversy involving justiciable questions relating to the party’s rights or obligations.” (Jolley v. Chase Home Fin., LLC (2013) 213 Cal.App.4th 872, 909, quotation marks and brackets omitted.)

A cause of action for declaratory relief should not be used as a second cause of action for the determination of identical issues raised in another cause of action. (Gen. of Am. Ins. Co. v. Lilly (1968) 258 Cal.App.2d 465, 470.)

“The availability of another form of relief that is adequate will usually justify refusal to grant declaratory relief” (Cal. Ins. Guar. Ass’n v. Super. Ct. (1991) 231 Cal.App.3d 1617, 1624), and a duplicative cause of action is subject to demurrer (Palm Springs Villas II Homeowners Ass’n, Inc. v. Parth (2016) 248 Cal.App.4th 268, 290). Further, “there is no basis for declaratory relief where only past wrongs are involved.” (Osseous Tech. of Am., Inc. v. DiscoveryOrtho Partners LLC (2010) 191 Cal.App.4th 357, 366, quotation marks omitted.)

Defendant argues that Plaintiff cannot establish a valid claim for her thirteenth cause of action (declaratory relief) because: (1) declaratory relief is merely duplicative and derivative of Plaintiff’s other claims; (2) declaratory relief cannot determine the other issues in the case; and (3) that when Plaintiff has a fully matured case for money, she must seek damages, and not pursue a declaratory relief action. (Memorandum, pp. 30:22–28, 31:1–6.)

Plaintiff does not oppose summary adjudication as to this cause of action. (Opposition, p. 1:15–18.)

Inasmuch as Plaintiff does not oppose dismissing this cause of action, the Court GRANTS summary adjudication as to the thirteenth cause of action for declaratory relief.

“In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.” (Civ. Code, § 3294, subd. (a).)

“An employer shall not be liable for damages pursuant to subdivision (a), based upon acts of an employee of the employer, unless the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice. With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation.” (Civ. Code, § 3294, subd. (b).)

Defendant argues that summary adjudication should be granted as to Plaintiff’s prayer for punitive damages because Plaintiff cannot show that Defendant acted with oppression, malice or fraud with clear and convincing evidence. (Memorandum, p. 31:8–22.)

Plaintiff disagrees, arguing that this is a question that should be put before the trier of fact. (Opposition, pp. 20:23–28, 21:1–11.)

The Court agrees with Plaintiff’s argument. Whether Defendant acted with oppression, malice, or fraud with clear and convincing evidence is a material issue of triable fact.

Defendant’s Motion is GRANTED in part. Summary judgment is DENIED. Summary adjudication is GRANTED as to the fifth cause of action (retaliation in violation of the FEHA), sixth cause of action (negligent supervision), seventh cause of action (whistleblower retaliation), eighth cause of action (promissory estoppel), ninth cause of action (fraud and concealment), tenth cause of action (defamation) eleventh cause of action (IIED), twelfth cause of action (UCL) and thirteenth cause of action (Declaratory Relief). Summary adjudication is DENIED as to all other causes of action and as to the prayer for punitive damages.