Superior Court of California 

County of Los Angeles 

Department 78 

¿ 

 

I. BACKGROUND 

On May 13, 2022, plaintiff Adriana Renovato (“Plaintiff”) filed this wrongful termination action against defendants Carters Inc., Carters Retail Inc., Lisa Quibilan (“Quibilan”), and Does 1 through 100, wherein she was jointly employed by Carters Inc. and Carters Retail Inc. from 2008 until May 15, 2020. (Compl. ¶¶1-2.) Plaintiff alleges the following. Quibilan, the manager, forced Plaintiff to transfer to a less desirable location far from Plaintiff’s home and children, and that this was a form of harassment based upon gender and marital status. (Id.¶ 7). Quibilan created a hostile work environment by expressly stating Plaintiff was not fit for management due to her weight, that her appearance was not the right “class” for a “white collar job” as District Manager, and that Plaintiff’s writing, language use, appearance, medical condition, disability, obesity, family leave, and accommodation were never going to permit her to become District Manager. (Id. ¶ 8.) Defendants refused to investigate Plaintiff’s complaints of a hostile work environment, forced transfer, harassment, and retaliation, such that Plaintiff was constructively terminated. (Id. ¶ 11.) Plaintiff alleges she was entitled to accommodation, which included not forcing her transfer. (Id. ¶ 13.) 

The complaint sets forth fourteen causes of action for (1) Breach of Express Written Contract; (2) Breach of Implied Contract; (3) Breach of the Covenant of Good Faith and Fair Dealing; (4) Wrongful Termination in Violation of Public Policy; (5) Discrimination; (6) Retaliation; (7) Harassment; (8) Violation of Cal. Labor Code §230.8; (9) Violation of Cal. Labor Code §1102.5; (10) Violation of Cal. Labor Code §1198.5; (11) Fraudulent Inducement; (12) Intentional Infliction of Emotional Distress (“IIED”); (13) Violation of Business & Professions Code §17200; and (14) Violation of CLRA. 

On April 17, 2024, defendants Carters Inc., Carters Retail Inc., and Quibilan (collectively, “Defendants”) filed the instant “renewed” motion for summary judgment (MSJ), or in the alternative summary adjudication (MSA) against all fourteen causes of action, and as to Plaintiff’s claim for punitive damages. 

On July 18, 2024, Plaintiff filed her opposition to Defendants’ renewed MSJ/MSA. 

On July 26, 2024, Defendants filed their reply. 

 

II. PROCEDURAL HISTORY & REQUEST FOR CONTINUANCE 

Plaintiff argues that the court has no jurisdiction to consider Defendants’ “renewed” MSJ and that it is a reconsideration motion because the Court previously denied Defendant’s original MSJ. Plaintiff further argues facts essential to her opposition exist but cannot be presented because Defendants’ refusal to produce any witnesses for deposition, namely Quibilan and Defendants’ Person Most Knowledgeable Lynnette Gage (“Gage”). Plaintiff requests that if the MSJ not be denied, that all dates be continued to permit Plaintiff to obtain discovery to oppose the MSJ. 

This case matter was reassigned on July 5, 2024. The Court has reviewed the history of this action and makes the following findings. 

First, there is no record that Defendants’ original MSJ had been denied. Instead, the initial MSJ hearing date was continued, and the following instruction provided: “Defendant may proceed on the currently-filed motion or may file and timely serve a new motion.” (Min. Order, Feb. 15, 2024.) In other words, it appears that Defendants were given leave to either proceed with the original motion filed on December 1, 2023, or to file an entirely new version. On April 17, 2024, Defendants exercised their option to file a new MSJ. Plaintiff’s misrepresentation of the history of this matter is not well-taken, and the Court disagrees with the arguments that the February 15, 2024 Order was a “de facto denial of Defendants’ MSJ”. (Rand-Lewis Decl. ¶ 16.) The Court finds no basis to doubt the propriety of the prior decision by the Hon. Judge Jill Feeney, nor is there any apparent prejudice to Plaintiff to allow the amended MSJ when (1) there has been no prior ruling on the merits, and (2) Plaintiff had ample notice and opportunity to respond to the amended MSJ. 

Second, the Court notes that Plaintiff’s prior opposition filed on February 1, 2024 in response to Defendants’ original December 1, 2023 MSJ raises the same issues raised now, practically in verbatim, regarding the need for depositions and a request for a continuance. Plaintiff’s counsel declares that on December 21, 2023, Plaintiff noticed the depositions of Quibilan, Gage, and Defendants’ PMQ for January 11 and January 12, 2024, but that Defendants refused to produce the witnesses. (Rand-Lewis Decl. ¶¶ 31-33.) In response to this contention, Defendants argue that Quibilan’s deposition was confirmed for December 4, 2023, but that Plaintiff’s counsel took that deposition off-calendar, and then unilaterally noticed the deposition for December 15, 2023. (Vongchanglor ¶¶ 20-25.) After some back and forth, the parties tentatively scheduled Quibilan’s deposition for January 11, 2024. (Id. ¶ 30.) Plaintiff then noticed the depositions of Gage and the PMK for January 12, 2024, in which Defendants’ counsel informed Plaintiff’s counsel of their unavailability for the selected date. (Id. ¶ 34-35.) Defendants served Plaintiff with objections to the amended notices, but confirmed that Quibilan was available to proceed on January 11, 2024. (Id. ¶ 36.) On January 10, 2024, Plaintiff’s counsel took Quibilan’s deposition off-calendar. (Id. ¶ 37.) Defendants argue Plaintiff never attempted to reschedule Gage, Defendants’ PMK, or Quibilan’s depositions thereafter. (Id. ¶¶ 38-40.)  Defendants assert that it was not until April 23, 2024, after discovery cutoff, that Plaintiff’s counsel vaguely demanded deposition dates without identifying which witnesses she sought dates for. (Id. ¶ 42.) 

Procedurally, this case is problematic. Here, discovery cutoff and motion cutoff dates (except as to the MSJ, expert discovery and related motions, and motions in limine) were expressly tied to the April 2, 2024 trial date. (Min. Order, Feb. 15, 2024.) On June 17, 2024, a clarification as to the June 10, 2024 order was issued to reflect that the July 2, 2024 MSJ would be continued to August 2, 2024, and that: “All non-expert discovery and motions were and are closed. The cutoff dates for the following shall be calculated based on 10/7/24 trial date: (1) expert discovery; (2) motions regarding expert discovery; and (3) motions in limine.” 

Thus, fact discovery was closed as of March 4, 2024 based on the April 2, 2024 trial date. Plaintiff knew, at the time Defendants filed their original MSJ back in December 2023, that Plaintiff needed to depose Quibilan, Gage, and Defendants’ PMQ to oppose Defendants’ motion as averred. Despite having three months to do so in a timely manner (from December 2023 to the discovery cut-off date), none of the depositions were completed. Plaintiff argues Defendants refused to produce their witnesses, whereas Defendants argue that they were willing, but that Plaintiff was dilatory. Regardless, the Court fails to understand why the depositions have yet to be completed, Plaintiff’s apparent lack of effort and diligence, and if there were actual issues in commencing with the depositions due to the purported refusal of Defendants to produce, why Plaintiff did not (and has not) moved to compel the depositions. 

Plaintiff requests the MSJ be continued so that Plaintiff may obtain discovery to oppose the motion by deposing the witnesses. At this juncture, fact discovery is closed. There has been no noticed motion to re-open discovery nor any motion to compel deposition, to date. Plaintiff has not demonstrated any diligence in seeking the specific discovery sought when Plaintiff has been acutely aware of the necessity of the depositions for at least eight months, spanning from the time the first MSJ was filed back on December 1, 2023 to the present date. 

In sum, the Court agrees with Defendants that Plaintiff has not been diligent. A declaration in support of a request for continuance of a summary judgment hearing must show: (1) the facts to be obtained are essential to opposing the motion; (2) there is reason to believe such facts may exist; and (3) the reasons why additional time is needed to obtain these facts. (Jade Fashion & Co. v. Harkham Indus., Inc. (2014) 229 Cal. App. 4th 635, 655.) When a party submits an affidavit demonstrating that facts essential to justify opposition may exist but have not been presented to the court because the party has not been diligent in searching for the facts through discovery, the court’s discretion to deny a continuance to summary judgment motion is strictly limited. (Insalaco v. Hope Lutheran Church of W. Contra Costa Cnty. (2020) 49 Cal. App. 5th 506, 519.)  

In Insalaco, the appellate court found that the trial court exceeded the bounds of its discretion in denying the Insalacos’ request for a continuance because the specific discovery of a site inspection was particularly necessary discovery, and other “important factors that militated in favor of a continuance” were that (1) no trial date had been set, (2) discovery remained open, and (3) no prior continuances had been sought or granted. (Insalaco, supra, 49 Cal. App. 5th at 520.) In stark contrast to Insalaco, here (1) trial is set two months from the present date for October 7, 2024, (2) discovery has been closed since March 4, 2024, and (3) Plaintiff sought a continuance to conduct the depositions back when Plaintiff filed her initial opposition to the MSJ in February 2024, and the MSJ was in fact continued by approximately six months. Throughout this time, the depositions were not completed, nor has Plaintiff at any point moved to reopen discovery and/or moved to compel the depositions sought. The Court finds that the totality of the circumstances weighs against a continuance. 

Plaintiff’s request to continue the motion for the depositions is DENIED. 

 

III. EVIDENTIARY OBJECTIONS 

A. Plaintiff’s Evidentiary Objections 

Plaintiff proffers 124 objections, collectively, to the declarations of Nicole Vongchanglor (“Vongchanglor”), Gage, and Quibilan. The vast majority are without merit. The Court rules as follows. 

1. Declaration of Vongchanglor 

Plaintiff’s general objection to its entirety is overruled.  

Objections 1, 2, 3, and 4 to Vongchanglor’s declaration are overruled. 

2. Declaration of Gage 

Plaintiff’s general objection to its entirety is overruled. 

Objections 5-6 are overruled; objection 7 is sustained for lack of foundation (foundation established only for Carter’s Retail, Inc., but not as to Carter’s Inc.), objections 8-9 are overruled, objection 10 is sustained as irrelevant, and objections 11-87 are overruled. 

3. Declaration of Quibilan 

Plaintiff’s general objection to its entirety is overruled. 

Objections 88-124 are overruled. 

B. Defendants’ Evidentiary Objections 

Defendants object to the declaration of Suzanne E. Rand-Lewis (“Rand-Lewis”). Objections 1-2 are overruled, objections 3-4 are sustained, objections 5-6 are overruled, objection 7 is sustained, objection 8 is overruled, objection 9 is sustained, objections 10-11 are overruled, objection 12 is sustained, objections 13-25 are overruled. 

  

IV. SEPARATE STATEMENT & TESTIMONY AMENDMENTS 

Before addressing the merits of the motion, an observation about the state of the papers is in order. The general notion of a separate statement is to provide a quick reference guide to the evidence. It should set forth the salient facts and point the Court to the most compelling pieces of testimony or documentation.  

Plaintiff’s separate statement fails to set forth facts, and instead only cites to Plaintiff’s deposition transcript or corrections to the transcript. Plaintiff’s separate statement response and supporting evidence as to each issue raised for adjudication is: “Plaintiffs incorporate their response and supporting evidence as to facts numbers 1, 4-12, 14-36, 40-57, 66-70 above herein as though set forth in full.” Essentially, Plaintiff is forcing the Court to hunt for particular lines of testimony, which runs against the purpose of a separate statement to provide the Court a concise list of material facts and evidence upfront. This is made worse by the fact that none of Plaintiff’s contentions of material fact are presented in the memorandum of points and authorities. (Champlin/GEI Wind Holdings, LLC v. Avery (2023) 92 Cal. App. 5th 218, 226 [Opposition separate statements in summary judgment proceedings must cite to facts and evidence for the evidence to be considered by the court. ].) The failure to comply with the separate statement requirement is already sufficient to constitute the granting of the motion, in the court’s discretion. (CCP §437c(b)(3).) Nonetheless, the Court will address the motion on its merits. 

In terms of Plaintiff’s affidavit and her reliance upon the “corrections” to her deposition testimony, the Court will address the issue here. The following is undisputed. Defendants took Plaintiff’s deposition on November 7, 2023, and Defendants subsequently filed their initial MSJ on December 1, 2023. On December 8, 2023, within 30 days after the deposition transcript became available, but after Defendants had filed their MSJ, Plaintiff sent correction certificate to the court reporter and Defendants’ counsel containing 78 corrections changing the substance of Plaintiff’s deposition testimony. Defendants moved to strike the deposition changes, but the motion was denied on technical grounds that Plaintiff was permitted to make changes to the form and substance of her deposition answers within 30 days of the availability of the original transcript. (Min. Order, April 2, 2024.) 

In this Court’s view, this case falls squarely within the D’Amico rule which gives deference to admissions made in the course of discovery, which govern and control over contrary declarations lodged at a hearing on a motion for summary judgment. This is because, as the California Supreme Court explained in D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, “ 'Where ... there is a clear and unequivocal admission by the plaintiff ... in his deposition ... [the trial court is] forced to conclude there is no substantial evidence of the existence of a triable issue of fact [notwithstanding a contradictory declaration in opposition to summary judgment].' ... [¶] ... [A]dmissions against interest have a very high credibility value. This is especially true when, as in this case, the admission is obtained not in the normal course of human activities and affairs but in the context of an established pretrial procedure whose purpose is to elicit facts. Accordingly, when such an admission becomes relevant to the determination, on motion for summary judgment, of whether or not there exist triable issues of fact (as opposed to legal issues) between the parties, it is entitled to and should receive a kind of deference not normally accorded evidentiary allegations in affidavits.” (Id. at pp. 21-22, italics omitted; see also Benavidez v. San Jose Police Dept. (1999) 71 Cal. App. 4th 853, 860; Visueta v. General Motors Corp. (1991) 234 Cal. App.3d 1609, 1613.) 

Finally, there is case law that suggests that a contradiction may not be avoided by changing the deposition transcript. (See Shapero v. Fliegel (1987) 191 Cal.App.3d 842, 849.) In Shapero, the Plaintiff “took pages from her deposition, crossed out her original answers and supplanted them with answers more in keeping with her later recollection of events before submitting them to the trial court. The trial court properly rejected these emendations.” (Id. at 849-850.) Thus, although Plaintiff was permitted to change her deposition testimony pursuant to CCP 2025.520, Plaintiff cannot by so doing create a triable issue of fact in order to defeat a motion for summary judgment. Here, Plaintiff’s amended deposition testimony makes both substantial and lengthy paragraph changes. For example, at page 74, paragraph 8, to Plaintiff’s deposition in which Plaintiff answered simply, “Yes” to the question “And it advised how it is to complain in the event you believed that you were being discriminated against or harassed; right?” (Defs. Exh. A. 74:9-11), Plaintiff’s amendment changes a single word response to a 472-word count narrative. Most of these “corrections” are littered with the same substantive changes, with the worst being Plaintiff’s deposition transcript at page 263:5, in which Plaintiff’s initial one word response became a “corrected” response of a 1,520 worded paragraph. The Court finds nothing so vague or misleading about the questions posed to Plaintiff during the deposition to necessitate such dramatic changes. 

Thus, for the purposes of this motion, the Court will not consider “corrections” to her testimony and Plaintiff’s affidavit in terms of determining whether a triable issue of material fact exists. 

 

V. DISCUSSION 

““The pleadings define the issues to be considered on a motion for summary judgment” (Sturgeon v. Bratton (2009) 174 Cal.App.4th 1407, 1417–1418, 95 Cal.Rptr.3d 718), and the issues framed by the pleadings are the only issues a motion for summary judgment must address. [Citation].” (Physicians Comm. for Responsible Med. v. McDonald's Corp. (2010) 187 Cal. App. 4th 554, 568.) 

A. First, Second, Third C/A – Breach of Express/Implied Contract/Covenant of Good Faith & Fair Dealing 

As framed by the pleadings, Plaintiff alleges that she had a written and oral employment agreement with Carters Inc. and Carters Retail Inc. to which Plaintiff agreed to work for them, and the terms of the contract were that Plaintiff would be treated fairly, be promoted, be provided leave entitled to under the law, and evaluated for accommodation and accommodated. (Compl. ¶ 2, 21.) Plaintiff alleges she performed her duties, and that they breached the employment agreement by illegally and wrongfully terminating Plaintiff’s employment. 

Labor Code § 2922 provides: “An employment, having no specified term, may be terminated at the will of either party on notice to the other. Employment for a specified term means an employment for a period greater than one month.” This section “establishes a presumption of at-will employment if the parties have made no express oral or written agreement specifying the length of employment or the grounds for termination. This presumption may, however, be overcome by evidence that despite the absence of a specified term, the parties agreed that the employer's power to terminate would be limited in some way.” (Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654, 677.)  

“In the employment context, factors apart from consideration and express terms may be used to ascertain the existence and content of an employment agreement, including the personnel policies or practices of the employer, the employee's longevity of service, actions or communications by the employer reflecting assurances of continued employment, and the practices of the industry in which the employee is engaged.” (Foley, supra, 47 Cal.3d at 680 (internal quotation omitted).) The elements of a cause of action for an implied-in-fact contract are the same as those for a written contract, the difference being that the agreement is “manifested in conduct rather than expressed in words.” (Maglica v. Maglica (1998) 66 Cal.App.4th 442, 455.) In every contract, there is an implied promise that each party will not do anything to unfairly interfere with the right of any other party to receive the benefits of the contract. (Comunale v. Traders & General Ins. Co. (1958) 50 Cal.2d 654, 658.) 

Defendants’ separate statement asserts that Plaintiff was not employed with Carter’s, Inc. In support thereof, Defendants proffer the declaration of Gage, the Director of Human Resources at Carter’s Retail, Inc. Gage declares she reviewed the business and personnel records of Carter’s Retail, Inc. and attests, “Carter’s, Inc. never employed Plaintiff Adriana Renovato. Instead, she was employed by Carter’s Retail, Inc.” Here, Defendants do not meet their prima facie burden that Carters Inc. and Carters Retail Inc. were not Plaintiff’s “joint employer.” (Compl. ¶ 2.) Gage, in her capacity and role under Carter’s Retail, Inc., only reviewed Carter’s Retail, Inc.’s records, and has not established the requisite foundation to attest to Carter’s, Inc. As such, the Court sustained Plaintiff’s objection to this paragraph of Gage’s declaration. However, this is of no consequence to the following analysis. 

Defendants aver that Plaintiff was hired as an “at will” employee on or around November 28, 2008, and that after she received four promotions throughout her employment, Carters Inc. furloughed most of its store employees on March 19, 2020, which included Plaintiff. While on furlough, Plaintiff sent an email to Gage resigning from her position. Defendants submit evidence that Plaintiff was employed as an at-will employee, and provide the Employee Success Guides regarding the at-will employment. Additionally, there is no evidence of an agreement of some meeting of the minds or mutual assent to be an alteration of the at-will baseline. Defendants have met their prima facie burden that there has been no breach of either an express or implied contract or covenant of good faith and fair dealing. The burden therefore shifts to Plaintiff to raise a triable issue of material fact. 

However, Plaintiff’s opposition does not argue the substance of any of the contentions raised by Defendants. Additionally, as previously noted, all material facts must be set forth in the separate statement for summary judgment or adjudication motions to be considered – Plaintiff has not done so. “[I]f it is not set forth in the separate statement, it does not exist.” ’ [Citation.] Thus, when the ‘fact’ is not mentioned in the separate statement, it is irrelevant that such fact might be buried in the mound of paperwork filed with the court, because the statutory purposes are not furthered by unhighlighted facts.” (Los Angeles Unified Sch. Dist. v. Torres Constr. Corp. (2020) 57 Cal. App. 5th 480, 492 (emphasis original).) Plaintiff necessarily fails to meet her shifted burden.  

 Summary adjudication as to the first, second, and third causes of action are GRANTED. 

 

C. Fourth C/A – Wrongful Termination in Violation of Public Policy 

Plaintiff alleges she was subject to discrimination, harassment, and retaliation. Under California law, the elements of a wrongful discharge in violation of public policy are: (1) an employer-employee relationship; (2) termination or other adverse employment action; (3) the termination of the plaintiff's employment was in violation of public policy; (4) the termination was a legal cause of the plaintiff's damages; and (5) damages. (Gardner v. Federal Express Corporation, N.D.Cal.2015, 114 F.Supp.3d 889.) The public policy must be “tethered to fundamental policies that are delineated in constitutional or statutory provisions.” (Gantt v. Sentry Insurance (1992) 1 Cal.4th 1083, 1095.) 

Here, Plaintiff premises the wrongful termination on public policies on “California Business and Professions Code, Fair Employment and Housing Act (FEHA) (Government Code §12900, et seq.), Civil Code, Labor Code, the California Constitution, and other regulations, common laws, and case laws.” (Compl. ¶ 41.) 

The only particular statute identified is FEHA (Government Code §12900, et seq.). An employee’s prima facie claim of discrimination requires “(1) the employee’s membership in a classification protected by the statute; (2) discriminatory animus on the part of the employer toward members of that classification; (3) an action by the employer adverse to the employee’s interests; (4) a causal link between the discriminatory animus and the adverse action; (5) damage to the employee; and (6) a causal link between the adverse action and the damage.”¿(Mamou v. Trendwest Resorts, Inc. (2008) 165 Cal.App.4th 686, 713.) 

To establish a claim for harassment, a plaintiff must demonstrate that (1) he is a member of a protected group; (2) he was subjected to harassment because he belonged to this group; and (3) the alleged harassment was so severe that it created a hostile work environment.¿ (See Aguilar v. Avis Rent A Car Sys., Inc. (1999) 21 Cal.4th 121.) 

As provided above, the evidence does not support an inference that the commentary directed at Plaintiff was discriminatory conduct based on a protected class, or that Plaintiff was engaged in any protected activity for the retaliation claim. Considering Plaintiff’s nonconforming separate statement and failure to argue any material facts in the opposition, Plaintiff necessarily fails to meet her shifted burden demonstrating a triable issue of material fact that she has viable prima facie discrimination claims under FEHA, nor is there a triable issue of material fact as to CFRA. 

Accordingly, summary adjudication as to the fifth, sixth, and seventh causes of action are GRANTED. 

E. Eighth Cause of Action - Violation of California Labor Code §230.8 

Plaintiff alleges Defendants were required to provide time off or leave to Plaintiff for “child- related activities” including but not limited to those accommodations required due to emergency, closure or unexpected unavailability of school or child related services, including those caused by emergency such as COVID, and that Defendants failed to achieve that end. (Compl. ¶¶ 77, 79.) California Labor Code §230.8 pertains to discharge of or discrimination against employee for taking time off for child-related activities; use of vacation, personal leave, compensatory time off or time off without pay; documentation of participation; reinstatement and reimbursement. 

As provided above, Defendants met their prima facie burden that they never denied Plaintiff’s requests for leave for child-related reasons or took any adverse action against Plaintiff for requesting and taking leave. Plaintiff has not demonstrated any triable issue of material fact.  

Summary adjudication as to the eighth cause of action GRANTED. 

F. Ninth C/A – Violation of California Labor Code §1102.5 

Plaintiff alleges she protested that Defendants’ conduct was in violation of the Labor Code and FEHA, that Defendants denied Plaintiff leave and then terminated Plaintiff’s employment in retaliation because Defendants believed Plaintiff might disclose or report their conduct to official agencies. (Compl. ¶¶ 83-85) “Section 1102.5 provides whistleblower protections to employees who disclose wrongdoing to authorities.” (Lawson v. PPG Architectural Finishes, Inc. (2022) 12 Cal.5th 703, 709). “An employee injured by prohibited retaliation may file a private suit for damages.” (Ibid.) 

Here, the Court agrees that there is no evidence that Plaintiff engaged in any protected activity under the whistleblower statute. Plaintiff has not demonstrated a triable issue of material fact in this regard. 

Summary adjudication as to the ninth cause of action GRANTED. 

G. Tenth C/A - Violation of Cal. Labor Code §1198.5 

Plaintiff alleges that upon her termination, Plaintiff requested all personnel records from Defendants, and Defendants filed to provide Plaintiff with complete records to date. (Compl. ¶ 90.) Cal. Labor Code §1198.5 states, in short, that every current and former employee has the right to inspect and receive a copy of the personnel records the employer maintains relating to the employee's performance or to any grievance concerning the employee, and that the employer shall make the personnel records available for inspection at a reasonable time no later than 30 calendar days from the date the employer receives a written request. 

Defendants provide that they furnished Plaintiff with the contents of her personnel records within 14 days of receiving the request. In support thereof, Gage declares that Plaintiff emailed her on March 4, 2024 a request for a copy of her personnel records. (Gage Decl. ¶ 44.) On March 18, 2021, Gage informed Plaintiff that the file was ready to be picked up at the Canoga Park Store. (Ibid.) Defendants have met their prima facie burden that the requested personnel records were made available to Plaintiff in a timely manner. Plaintiff fails to create a triable issue of material fact in this regard. 

Summary adjudication as to the tenth cause of action GRANTED. 

H. Eleventh C/A – Fraudulent Inducement and Violation of Cal. Labor Code §970 

Plaintiff alleges Defendants made certain representations and promises to Plaintiff for the purpose of inducing Plaintiff to forgo other employment and to remain employed with Defendant. (Compl. ¶ 94.) More particularly, Plaintiff alleges that Defendants promised Plaintiff that she would be permitted to remain in her position at the location she had been working to be close to home and her children, that she would be not discriminated against, retaliated, and that Plaintiff would be promoted. (Id. ¶ 5.) Plaintiff alleges Defendants made these representations in order to induce Plaintiff to remain employed by Defendants during COVID. (Ibid.) 

The Court agrees that there is no evidence that there was any fraudulent inducement. Plaintiff does not provide her specific job duties, but it appears from her testimony that she was assigned to stores at different locations throughout her employment due to her trusted capabilities, and it was her belief that this was proven because she was moved from store to store to fix the problem. (P Vongchanglor Decl. ¶3, Exh. A, Plf. Depo. 93:23-25, 94:1-7.) Additionally, after Plaintiff told Quibilan that she would not go to Commerce location, Plaintiff was not fired and Plaintiff still received unemployment benefits until she received a new job at Lowe’s. (Id. 195:10-17.) There is no evidence that any person made fraudulent statements to Plaintiff during the furlough period regarding her employment. 

Summary adjudication as to the eleventh cause of action GRANTED. 

I. Twelfth C/A - IIED 

Plaintiff alleges Defendants promised she would not be terminated, and that Defendants constructively terminated her employment based upon discriminatory harassing and retaliatory motives which violated the law. (Compl. ¶ 100.) 

The elements of a claim for intentional infliction of emotional distress (IIED) are (1) extreme and outrageous conduct by the defendant, (2) intent to cause, or reckless disregard of the probability of causing, emotional distress, (3) severe emotional suffering, and (4) actual and proximate causation of the emotional distress. (Wong v. Tai Jing (2010) 189 Cal.App.4th 1354, 1376.) “Generally, conduct will be found to be actionable where the ‘recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, “Outrageous!”’ [Citation.]” (Cochran v. Cochran (1998) 65 Cal.App.4th 488, 494.) Whether a defendant’s conduct can be reasonably found to be ‘outrageous’ in this way is a question of law that must be initially determined by the court. (See Ricard v. Pacific Indemnity Co. (1982) 132 Cal.App.3d 886, 895.) 

Defendants’ first argument is that the IIED claim fails because it is preempted by the Workers’ Compensation Act because Plaintiff’s emotional distress claims are based on events arising out of her employment. Defendants do not properly develop this contention. Further, the Court notes that emotional distress claims are not barred by the exclusivity rule to the extent they seek emotional distress damages for the alleged work- related injury discrimination, because work-related injury discrimination is not a normal risk of the compensation bargain. (Fretland v. County of Humboldt (1999) 69 Cal. App. 4th 1478, 1492.) 

Defendants’ second argument is that Plaintiff fails to allege that she suffered severe or emotional distress. A defendant's motion for summary judgment or summary adjudication “necessarily includes a test of the sufficiency of the complaint” and its legal effect is the same as a demurrer or motion for judgment on the pleadings. (See¿American Airlines, Inc. v. County of San Mateo¿(1996) 12 Cal.4th 1110, 1118;¿Prue v. Brady Co./San Diego, Inc.¿(2015) 242 Cal.App.4th 1367, 1375-1376, 1384;¿Slaughter v. Legal Process & Courier Service¿(1984) 162 Cal.App.3d 1236, 1244.) The Court agrees that Plaintiff’s complaint fails to state sufficient facts to maintain this cause of action. 

Conduct is extreme and outrageous when it exceeds all bounds of decency usually tolerated by a decent society, and is of a nature which is especially calculated to cause, and does cause, mental distress. Liability does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590.) Aside from being insufficiently pled, the evidence provided by Defendants’ meet their prima facie burden that the commentary directed toward Plaintiff does not rise to the level of extreme and “outrageous”. 

Summary adjudication as to the twelfth cause of action GRANTED. 

J. Thirteenth C/A - Violation of Business & Professions Code §17200 

Business & Professions Code §17200 prohibits any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising.  

As Defendants contend, the basis for this cause of action is premised upon the prior causes of action. For the same reasons as provided above, Plaintiff fails to demonstrate a triable issue of material fact in this regard. 

Summary adjudication as to the thirteenth cause of action GRANTED. 

H. Fourteenth C/A - Violation of The Consumer Legal Remedies Act (CLRA) 

The necessary elements of a CLRA cause of action are: (1) a consumer; (2) who suffers any damage; and (3) because of the use or employment by any person of a method, act, or practice declared to be unlawful by Civil Code section 1770. (Civ. Code, §1780 (a).) 

This is an employment action premised upon claims of discrimination. Plaintiff is not a consumer, and there is no basis for this cause of action. 

Summary adjudication as to the fourteenth cause of action GRANTED. 

G. Punitive Damages 

Civil Code section 3294(a) authorizes the recovery of punitive damages where the defendant has been guilty of oppression, fraud, or malice, express or implied. Malice means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others. (Civ. Code, § 3294, subd. (c)(1).) Oppression is despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights. (Id., subd. (c)(2).) Fraud means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the party of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury. (Id., subd. (c)(3).) 

Because the Court granted summary adjudication as to each cause of action, such that there is no basis for punitive damages, this claim must similarly be granted. 

 

VI. CONCLUSION 

Defendants’ motion for summary judgment, or in the alternative adjudication, is GRANTED in its entirety. 

 

Moving Party is ordered to give notice. 

 

DATED: August 1, 2024 

__________________________ 

Hon. Michelle C. Kim 

Judge of the Superior Court 

 

PLEASE TAKE NOTICE: 

• Parties are encouraged to meet and confer after reading this tentative ruling to see if they can reach an agreement. 

• If a party intends to submit on this tentative ruling, the party must send an email to the court at SMCDEPT78@lacourt.org with the Subject line “SUBMIT” followed by the case number. The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting. 

• Unless all parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument. You should assume that others may appear at the hearing to argue. 

• If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court. After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave.