Judge: Michael P. Linfield, Case: 21STCV13442, Date: 2022-09-28 Tentative Ruling
Case Number: 21STCV13442 Hearing Date: September 28, 2022 Dept: 34
SUBJECT: Motion for Summary Judgment/
Summary Adjudication
Moving
Party: Defendants Orangebin,
Inc., and Yong Hwan Kim
Resp. Party: Plaintiff
Jorge Siquin
Defendants Orangebin, Inc., and
Yong Hwan Kim’s Motion for Summary Judgment/ Summary Adjudication of Plaintiff
Jorge Siquin’s First Amended Complaint is DENIED.
I.
BACKGROUND
This action arises out of
allegations that the plaintiff, who was hired by the defendants as a fulltime
non-exempt construction worker on January 1, 2012, was terminated from his
employment on May 29, 2019, without being paid all outstanding wages owed to
him. (Complaint, ¶¶ 1-34.)
On April 8, 2021, Plaintiff Jorge
Siquin (“Siquin”) filed a Complaint against Defendants Orangebin, Inc.
(“Orangebin”), Yong Hwan Kim (“Kim”), and Andres Lee (“Lee”)
On September 9, 2021, Siquin filed the
operative First Amended Complaint against Defendants Orangebin, Inc., Yong Hwan
Kim, and Andres Lee to allege twenty causes of action, as follows:
1.
discrimination in violation of Government Code
section 12940 et seq. against Oragebin, Inc. and Does 1 through 20, inclusive.
2.
retaliation in violation of Government Code
section 12940 et seq. against Orangebin, Inc. and Does 1 through 20,
inclusive;
3.
failure to prevent discrimination and
retaliation in violation of in violation of Government Code section 12940(k)
against Orangebin, Inc. and Does 1 through 20, inclusive;
4.
failure to provide reasonable accommodations in
violation of Government Code section 12940 et seq. against Orangebin,
Inc. and Does 1 through 20, inclusive;
5.
failure to engage in a good faith interactive
process in violation of Government Code section 12940 et seq. against
Orangebin, Inc. and Does 1 through 20, inclusive;
6.
violation of California Family Rights Act,
Government Code section 12945.2 et seq. against Orangebin, Inc. and Does
1 through 20, inclusive;
7.
denial of and discrimination based upon the use
of sick leave (Labor Code sections 233, 234, and 246.5) against Orangebin, Inc.
and Does 1 through 20, inclusive;
8.
declaratory judgment against Orangebin, Inc. and
Does 1 through 20, inclusive;
9.
wrongful termination in violation of public
policy against Orangebin, Inc. and Does 1 through 20, inclusive;
10.
retaliation for disclosing violations of law
(Labor Code sections 1102.5, 1102.6) against Orangebin, Inc. and Does 1 through
20, inclusive;
11.
retaliation (Labor Code section 98.6 against
Orangebin, Inc. and Does 1 through 20, inclusive);
12.
failure to pay wages (Labor Code sections 201,
1182.12, 1194, 1194.2) against all Defendants;
13.
failure to pay minimum wages (Labor Code
sections 1182.12, 1194, 1194.2, 1197) against all Defendants;
14.
failure to pay overtime compensation (Labor Code
sections 510, 1194) against all Defendants;
15.
failure to provide meal and rest periods (Labor
Code sections 226.7, 512) against all Defendants;
16.
failure to provide itemized wage statements
(Labor Code section 226 et seq.) against all Defendants;
17.
failure to indemnify (Labor Code section 2802)
against all Defendants;
18.
waiting time penalties (Labor Code sections
201-203) against all Defendants;
19.
unfair competition (Business and Professions
Code section 17200 et seq.) against all Defendants; and
20.
failure to permit inspection of personnel and
payroll records against all Defendants.
On February 24, 2022, granted Defendants
Orangebin, Inc. and Yong Hwan Kim’s Motion for Judgment on the Pleadings
against Plaintiff Jorge Siquin’s First Amended Complaint as to the eighth cause
of action. (Minute Order, February 24, 2022, p. 1.)
On April 5, 2022, Defendants
Orangebin, Inc. and Yong Hwan Kim (collectively “Defendants”) moved the Court
“— pursuant to Code Civ. Proc. § 437c(a) — for summary judgement as to the
claims in Plaintiff s first amended complaint. In the alternative, Defendants
shall move the Court — pursuant to Code
Civ. Proc, § 437c(f) — for summary adjudication of the individual causes of
action in Plaintiff's first amended complaint. This motion is made on the
grounds that, based on the undisputed facts, Defendants Orangebin, Inc. and
Yong Hwan Kim are entitled to judgment on each cause of action in Plaintiff's
first amended complaint, as a matter of law.” (Motion, p. 1:27—2:5.)
On September 14, 2022, Plaintiff
Jorge Siquin opposed Defendants’ motion for summary judgment/ summary
adjudication.
II.
ANALYSIS
A.
Plaintiff’s Evidentiary Objections
On September 14, 2022, Plaintiff
Jorge Siquin filed evidentiary objections to the Declarations of Yong Hwan Kim,
Andres Lee, and Luis Hernandez (“Hernandez”), filed by Defendants Orangebin,
Inc., and Yong Hwan Kim in support of their motion for summary judgment/
summary adjudication.
The objections are overruled as procedurally
improper because Plaintiff has not filed a proposed order. (CRC 3.1354(c); Superior Dispatch, Inc. v.
Insurance Corp. of New York (2010) 181 Cal.App.4th 175, 192-193.)
Further, each of the 24 objections list the same “Grounds for
Objection.” The objections are frivolous.
(See, e.g., Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243,
249.)
B.
Defendant’s Evidentiary Objections
On September 26, 2022, Defendants
Orangebin and Kim filed evidentiary objections to Plaintiff’s Declaration.
Each of the 17 objections are all
based on the same three grounds: “Lacks
Foundation; Speculative; Legal and Factual Conclusion.”
The objections are OVERRULED as procedurally
improper because Defendants have not filed a proposed order. (CRC 3.1354(c); Superior Dispatch, Inc. v.
Insurance Corp. of New York (2010) 181 Cal.App.4th 175, 192-193.)
C.
Legal Standard
The purpose of a motion for summary judgment
or summary adjudication “is to provide courts with a mechanism to cut through
the parties’ pleadings in order to determine whether, despite their
allegations, trial is in fact necessary to resolve their dispute.” (Aguilar
v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) “Code of Civil
Procedure section 437c, subdivision (c), requires the trial judge to grant
summary judgment if all the evidence submitted, and ‘all inferences reasonably
deducible from the evidence’ and uncontradicted by other inferences or
evidence, show that there is no triable issue as to any material fact and that
the moving party is entitled to judgment as a matter of law.” (Adler v.
Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)
“On a motion for summary judgment, the
initial burden is always on the moving party to make a prima facie showing that
there are no triable issues of material fact.” (Scalf v. D. B. Log Homes,
Inc. (2005) 128 Cal.App.4th 1510, 1519.) When a plaintiff seeks summary
judgment or adjudication, the plaintiff must produce admissible evidence on
each element of each cause of action on which judgment is sought. (CCP §
437c(p)(1).) The opposing party on a motion for summary judgment is under no
evidentiary burden to produce rebuttal evidence until the moving party meets
his or her initial movant’s burden. (Binder v. Aetna Life Insurance Company (1999)
75 Cal.App.4th 832.) Once the initial movant’s burden is met, then the burden
shifts to the opposing party to show, with admissible evidence, that there is a
triable issue requiring the weighing procedures of trial. (CCP § 437c(p).)
"A party may move for summary
adjudication as to one or more causes of action within an action, one or more
affirmative defenses, one or more claims for damages, or one or more issues of
duty, if the party contends that the cause of action has no merit, that there
is no affirmative defense to the cause of action, that there is no merit to an
affirmative defense as to any cause of action, that there is no merit to a
claim for damages, as specified in Section 3294 of the Civil Code, or that one
or more defendants either owed or did not owe a duty to the plaintiff or
plaintiffs. A motion for summary adjudication shall be granted only if it completely
disposes of a cause of action, an affirmative defense, a claim for damages, or
an issue of duty." (CCP § 437c(f)(1).)
“When deciding whether to grant summary
judgment, the court must consider all of the evidence set forth in the papers
(except evidence to which the court has sustained an objection), as well as all
reasonable inferences that may be drawn from that evidence, in the light most
favorable to the party opposing summary judgment.” (Avivi v. Centro Medico
Urgente Medical Center (2008) 159 Cal.App.4th 463, 467; CCP § 437c(c).)
“Declarations must show the declarant's
personal knowledge and competency to testify, state facts and not just conclusions,
and not include inadmissible hearsay or opinion. The declarations in support of
a motion for summary judgment should be strictly construed, while the opposing
declarations should be liberally construed.” (Fernandez v. Alexander
(2019) 31 Cal.App.5th 770, 779, quoting Bozzi v. Nordstrom, Inc. (2010)
186 Cal.App.4th 755, 761; see also CCP § 437c(d).)
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 Ctr. (2005) 135 Cal.App.4th 289, 294.)
“A motion for summary adjudication shall be
granted only if it completely disposes of a cause of action, an affirmative
defense, a claim for damages, or an issue of duty.” (CCP § 437c(f)(1).) “If a
cause of action is not shown to be barred in its entirety, no order for summary
judgment — or adjudication — can be entered.”
(McCaskey v. California State Automobile Assn. (2010) 189
Cal.App.4th 947, 975; Snatchko v. Westfield LLC (2010) 187 Cal.App.4th
469, 476; Dunn v. County of Santa Barbara (2006) 135 Cal.App.4th 1281,
1290.) “The purpose of the enactment of¿Code of Civil Procedure section 437c,
subdivision (f)¿was to stop the practice of piecemeal adjudication of facts
that did not completely dispose of a substantive area.” (Catalano v.
Superior Court (2000) 82 Cal.App.4th 91, 97.)
D.
Discussion
1.
Siquin’s Statutory Claims Against Defendants
Defendants identify seventeen
statutory causes of action in Siquin’s First Amended Complaint (“FAC”) against
them “under the Fair Employment and Housing Act, Gov't Code ]) 12940; the California
Family Rights Act, Gov't Code f 12945.2, et seq.; and the California Labor
Code”, all of which require Siquin to prove that he was in fact employed by
Defendants. (Motion, MPA, p. 1:7-8.) Defendants offer the Declarations of Yong
Hwan Kim, Andres Lee, and Luis Hernandez to assert that Siquin was not employed
by Defendants Orangebin, Inc., and Yong Hwan Kim. These declarations assert the
following in summary:
·
Siquin’s contends that on January 1, 2012 he was
hired by Defendants to work for Orangebin, Inc. as a full-time non-exempt
construction worker following an encounter with Luis Hernandez within which
Hernandez sought workers for Orangebin; Siquin further contends that he was
supervised by Hernandez throughout his alleged Orangebin employment. Both of these contentions are false. (FAC, ¶¶
19-20; Kim Decl., ¶¶ 5, 6; Lee Decl., ¶¶ 3, 4; Hernandez Decl., ¶¶ 3, 4.)
·
Kim never offered Siquin employment of any kind
with Orangebin, and never employed Hernandez. (Km Decl., ¶¶ 7, 8, 10; Lee
Decl., ¶ 5; Hernandez Decl., ¶¶ 4, 5.)
·
Luis Hernandez was not authorized to hire
employees for Orangebin, Inc. and Kim did not direct Orangebin operations,
including alleged Orangebin subcontractor wages, hours, or working conditions.
(Kim Decl., ¶¶ 8, 11, 12; Lee Decl., ¶ 6, 9; Hernandez Decl., ¶¶ 5-10.)
Siquin states that he was employed
by Orangebin “between January 1, 2012 and May 29, 2019”, as a construction
worker paid $110 per day, that Luis Hernandez recruited him for employment with
Orangebin, that Lee and Hernandez supervised his work with Orangebin, that Kim
communicated exclusively with Lee during Siquin’s alleged employment, that
Siquin routinely observed Kim provide money to Lee to meet Orangebin payroll
requirements at worksites, that Lee paid Hernandez to pay Orangebin workers
like Siquin, that Siquin and other Orangebin employees wore blue Orangebin
t-shirts to wear as a uniform during workdays, and that Siquin was terminated
by Orangebin on May 29, 2019. (Siquin Decl., ¶¶ 2, 3, 5, 7, 8, 16, 17, 22-24,
31, 48, 49.)
To succeed on summary judgment, the moving
party “must demonstrate that under no hypothesis is
there a material issue of fact that requires the process of a trial.” (Artiglio
v. Corning Inc. (1998) 18 Cal.4th 604, 612.) The evidence before
the Court conflicts. Defendants have not
met their burden to demonstrate that there are no material issues of fact as to
whether Siquin was ever employed by Orangebin, Inc., that Hernandez and Lee
were his supervisors, or whether Kim had oversight or operational input over
Orangebin activities at project worksites.
The Court finds triable issues of material
fact that preclude granting summary adjudication on any of the statutory causes
of action in Siquin’s First Amended Complaint.
2.
Ninth Cause of Action for Wrongful Termination
in Violation of Public Policy
To support a common law wrongful
discharge claim, the public policy ‘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. (Mendoza v. Western Medical Center Santa Ana
(2014) 222 Cal.App.4th 1334, 1338.)
Defendants assert that summary
adjudication is appropriate here because Siquin was allegedly not employed by
either Orangebin or Kim during the time period asserted in Siquin’s First
Amended Complaint.
As stated above, there are triable
issues of material fact as to whether Siquin worked for either Orangebin or Kim. Therefore the Court finds triable issues of
material fact on the issue of wrongful termination in violation of public
policy.
3.
Nineteenth Cause of Action for Unfair
Competition
"As used in this chapter,
unfair competition shall mean and include any unlawful, unfair or fraudulent
business act or practice and unfair, deceptive, untrue or misleading
advertising and any act prohibited by Chapter 1 (commencing with Section 17500)
of Part 3 of Division 7 of the Business and Professions Code." (Business
and Professions Code, § 17200.)
The Court finds triable issues of
material fact as to whether Siquin was employed by Defendants. Therefore, triable
issues of material fact persist on the question of unfair competition as
defined by the Business and Professions Code.
III.
CONCLUSION
Defendants Orangebin, Inc., and
Yong Hwan Kim’s Motion for Summary Judgment/ Summary Adjudication of Plaintiff
Jorge Siquin’s First Amended Complaint is DENIED.