Judge: Monica Bachner, Case: 21STCV08204, Date: 2023-01-17 Tentative Ruling

Case Number: 21STCV08204    Hearing Date: January 17, 2023    Dept: 71

Superior Court of California

County of Los Angeles

DEPARTMENT 71

TENTATIVE RULING

Defendant Bobit Business Media Inc.’s motion for summary judgment is denied.  Defendant’s motion for summary adjudication in the alternative is denied as to the 1st, 2nd, 3rd causes of action.

Defendant Bobit Business Media Inc. (“Bobit”) (“Defendant”) moves for summary judgment against Plaintiff Kelly Bracken (“Bracken”) (“Plaintiff”) on her complaint.  In the alternative, Defendant moves for summary adjudication on the 1st (age discrimination in violation of the Fair Employment & Housing Act (“FEHA”), Gov’t. Code §12940(a)), 2nd (failure to take all reasonable steps necessary to prevent discrimination from occurring in violation of FEHA, Gov’t. Code §12940(k)), and 3rd (wrongful termination in violation of public policy) causes of action.  (Notice of Motion, pg. 2; C.C.P. §437c et. seq.)

CRC Violations

Defendant filed a separate statement in support of its motion for summary judgment and in the alternative summary adjudication in violation of Rule 3.1350(b), which provides,

If made in the alternative, a motion for summary adjudication may make reference to and depend on the same evidence submitted in support of the summary judgment motion. If summary adjudication is sought, whether separately or as an alternative to the motion for summary judgment, the specific cause of action, affirmative defense, claims for damages, or issues of duty must be stated specifically in the notice of motion and be repeated, verbatim, in the separate statement of undisputed material facts.

(C.R.C., Rule 3.1350(b), emphasis added; see Rule 3.1350(h) [demonstrating format for separate statements].)  The Court, in its discretion, will still consider Defendant’s motion.

Plaintiff filed a response separate statement in opposition to the motion for summary judgment that is in violation of C.R.C. Rule 3.1350(h) because it raises arguments.  (C.R.C., Rule 3.1350(h).)  The Court, in its discretion, will still consider Plaintiff’s response separate statement, but will disregard the arguments.

           Defendant filed objections to Plaintiff’s separate statement in opposition in violation of C.R.C. Rule 3.1354(b), which provides,

All written objections to evidence must be served and filed separately from the other papers in support of or in opposition to the motion. Objections to specific evidence must be referenced by the objection number in the right column of a separate statement in opposition or reply to a motion, but the objections must not be restated or reargued in the separate statement. Each written objection must be numbered consecutively and must:

(1)  Identify the name of the document in which the specific material objected to is located;

(2)  State the exhibit, title, page, and line number of the material objected to;

(3)  Quote or set forth the objectionable statement or material; and

(4)  State the grounds for each objection to that statement or material.

(C.R.C. Rule 3.1354(b), emphasis added.)  Defendant’s objections are improperly formatted in a reply separate statement; evidentiary objections must be filed separately from separate statements and should not be argumentative.  As such, the Court will not consider Defendant’s objections in reply.

Further, Defendant’s proposed order regarding its evidentiary objections is improperly formatted in violation of C.R.C. Rule 3.1354(c).

Procedural Background

On March 2, 2021, Plaintiff filed her employment age discrimination complaint in the instant action against Defendant alleging causes of action for (1) age discrimination in violation of FEHA, (2) failure to take all reasonable steps necessary to prevent discrimination from occurring in violation of FEHA, and (3) wrongful termination in violation of public policy, based Defendant’s termination of Plaintiff’s employment on June 15, 2020.  (See Complaint.)  On March 6, 2022, Defendant filed the instant motion.  Plaintiff filed her opposition on December 28, 2022.  Defendant filed its reply on January 11, 2023.

Summary of Allegations

Plaintiff alleges she worked as the publishing director for Defendant from April 2000 until Defendant terminated her employment on June 15, 2020, and was 60 years old when her employment was terminated.  (Complaint ¶¶1, 7, 8.)  Plaintiff alleges Defendant fired her in substantial part because of her age and replaced her with a substantially younger employee.  (Complaint ¶9.)  Plaintiff alleges as a legal and proximate result of Defendant’s actions, she has suffered special and general damages in excess of $75,000.  (Complaint ¶¶10, 14, 18.)  Plaintiff alleges Defendant had no or insufficient policies and failed to implement the policies they did have to prevent discrimination and retaliation from occurring.  (Complaint ¶13.)  Plaintiff alleges Defendant’s termination of her employment violated California’s policy against age discrimination in employment.  (Complaint ¶17.)

Age Discrimination in Violation of FEHA, Gov’t. Code §12940(a) (1st COA)

A cause of action for discrimination based on age requires a showing of the following elements: (1) the defendant was an employer; (2) the plaintiff was an employee of defendant; (3) defendant (i) terminated plaintiff or (ii) subjected plaintiff to an adverse employment action; (4) plaintiff was age 40 or older at the time of the adverse employment action; (5) plaintiff’s age was a substantial motivating reason for defendant’s termination/adverse employment action; (6) plaintiff was harmed; and (7) defendant’s conduct was a substantial factor in causing plaintiff’s harm.  (CACI 2570.) 

Under the McDonnell Douglas process for allocating burdens of proof and producing evidence, which is used in California for disparate-treatment cases under FEHA, the employee must first present a prima facie case of discrimination.  (Id.; McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792.)  The burden then shifts to the employer to produce evidence of a nondiscriminatory reason for the adverse action.  (CACI 2570.)  At that point, the burden shifts back to the employee to show that the employer’s stated reason was in fact a pretext for a discriminatory act.  (Id.)

Defendant argues summary adjudication of this cause of action is warranted because Plaintiff was selected for layoff solely to reduce company expenses and maximize cash flow to the business and not for a discriminatory reason.  (Motion, pg. 4.)  Defendant argues (1) Defendant applied consistent and reasonable criteria to select Plaintiff as one of the 22 employees to lay off, (2) Plaintiff testified that prior to her layoff no adverse employment action was taken against her because of her age, (3) Plaintiff’s work duties did not make her an essential employee, and (4) the ages of other employees laid off on June 15, 2020, does not evidence age discrimination.  (Motion, pgs. 4-6.)

1.    Direct Evidence of Age Discrimination

“With direct evidence of pretext, a triable issue as to the actual motivation of the employer is created even if the evidence is not substantial.”  (Morgan v. The Regents of the University of California (2000) 88 Cal.App.4th 52, 69 [internal quotation marks and citations omitted].)  “Direct evidence is evidence that proves a fact without inference or presumption.”  (Zamora v. Security Industry Specialists (2021) 71 Cal.App.5th 1, 35 [explaining “Direct evidence includes comments that demonstrate discriminatory animus and a causal relationship between those comments and the adverse employment action.”.)  “Direct evidence is that which, ‘if believed by the trier of fact, will prove the particular fact in question without reliance upon inference or presumption.’ [Citations.] . . . To rise to the level of direct evidence of discrimination, . . . ‘isolated comments must be contemporaneous with the discharge or causally related to the discharge decision making process.’ [Citation.]”  (Trop v. Sony Picture Entertainment, Inc. (2005) 129 Cal.App.4th 144, 155.)

Plaintiff argues she can demonstrate a prima facie case of employment discrimination with direct evidence of Defendant’s age discrimination. 

Plaintiff failed to demonstrate a prima facie case of employment discrimination with direct evidence of Defendant’s age discrimination.  Specifically, Plaintiff submitted evidence that Defendant’s CEO, Parias Maniar (“Maniar”), was the decisionmaker in firing Plaintiff and testified at deposition that he used the “cost of labor and what [Defendant] could afford to continue as a company at that point in time” as his criterion to determine which employees to lay off or furlough.  (Plaintiff’s Disputed Separate Statement of Fact [“P-DSSF”] 15(a); Decl. of Byrnes [“P-COE”] Exh. 1 at 21:5-7, 57:23-58:2.)  Plaintiff failed to demonstrate direct evidence of a statement by Maniar or document evidence that does not require an inference or presumption to show Plaintiff was laid off because of her age.  (Zamora, 71 Cal.App.5th at pg. 34.)

2.    Prima Facie Case of Age Discrimination

“In order to make out a prima facie case of age discrimination under FEHA, a plaintiff must present evidence that the plaintiff (1) is over the age of 40; (2) suffered an adverse employment action; (3) was performing satisfactorily at the time of the adverse action; and (4) suffered the adverse action under circumstances that give rise to an inference of unlawful discrimination, i.e., evidence that the plaintiff was replaced by someone significantly younger than the plaintiff.”  (Sandell v. Taylor-Listug, Inc. (2010) 188 Cal.App.4th 297, 321.)  “The fact that one person in the protected class has lost out to another person in the protected class is thus irrelevant, so long as [s]he has lost out because of [her] age.”  (Id. quoting O’Connor v. Consolidated Coin Caterers Corp (1996) 517 US 308, 312.) 

Plaintiff argues she can demonstrate a prima facie case of age discrimination under the McDonnell Douglas burden-shifting framework.  In opposition, Defendant argue that Plaintiff fail to produce substantial responsive evidence of a material triable issue of fact as to pretext or discriminatory animus.  (Reply, pg. 6.)  There is no issue as to Plaintiff’s age:  Defendant asserts in its motion that Plaintiff was 60 years old (a protected class).  Here, Plaintiff submitted evidence that she was  performing competently, she was fired, and Defendant retained Brian Peach (“Peach”) to take over Plaintiff’s job duties in overseeing the graphics department for Launchpad, that Peach was in his forties at the time Plaintiff was laid off—eleven years younger than Plaintiff, and Peach believes that being the administrator for Launchpad, which had been Plaintiff’s work duty, is an important part of bringing in revenue.  (P-DSSF 15(e); P-COE see Exh. 1 at 37:13-16, Exh. 7 at 11:19-20, 18:1-6, and see Exh. 1 at 48:6-7.)  Plaintiff met her burden to establish a prima facie case of age discrimination under McDonnell Douglas, shifting the burden to Defendant to produce evidence of a nondiscriminatory reason for the adverse employment action.

3.    Non-discriminatory Reason for Adverse Employment Action

“[D]ownsizing alone is not necessarily a sufficient explanation, under the FEHA, for the consequent dismissal of an age-protected worker. An employer’s freedom to consolidate or reduce its work force, and to eliminate positions in the process, does not mean it may ‘use the occasion as a convenient opportunity to get rid of its [older] workers.  Invocation of a right to downsize does not resolve whether the employer had a discriminatory motive for cutting back its work force, or engaged in intentional discrimination when deciding which individual workers to retain and release. Where these are issues, the employer’s explanation must address them.”  (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 358, citations omitted.)

Defendant submitted evidence of a nondiscriminatory reason for laying off Plaintiff.  Specifically, Defendant submitted evidence that the overriding criteria it used to decide who to furlough or layoff was whether the individual had a significant impact on Defendant’s ability to perform and complete existing contractual obligations to deliver the company’s media products and solutions in order to generate revenue in the near term and maintain the company’s core infrastructure in areas such as accounting, human resources, and facilities and the age of employees was a non-factor in Defendant’s CEO’s determination of who would be laid off.  (Defendant’s Disputed Separate Statement of Fact [“D-DSSF”] 18; Decl. of Maniar ¶19.)  Defendant submitted evidence that in or around April 2020, Defendant had an outstanding loan of approximately $29.6 million, and as a result of Defendant’s poor financial condition, Defendant was in technical default under the loan and retained bankruptcy counsel due to the possibility of having to file for Chapter 11 bankruptcy protection.  (Defendant’s Undisputed Separate Statement of Fact [“D-USSF”] 14; Decl. of Maniar ¶15.)  Defendant submitted evidence that Defendant sold its “Aftermarket Group” and Limousine Charter & Tour brand in to survive financially.  (D-USSF 14; Decl. of Maniar ¶16.)  Defendant submitted evidence that reducing overhead by furloughs and layoffs was essential to Defendant’s financial survival.  Defendant presented evidence that Plaintiff was selected for layoff because her duties did not significantly impact Defendant’s ability to perform and complete existing contractual obligations.  (D-USSF 18; Decl. of Maniar ¶19.)  Defendant submitted evidence that Plaintiff’s work duties could be absorbed by an existing employee who was not being furloughed.  (D-DSSF 42; Decl. of Maniar ¶12.)  Defendant met its burden to establish a nondiscriminatory reason for laying off Plaintiff, shifting the burden back to Plaintiff to show that the employer’s stated reason was in fact a pretext for a discriminatory act.

4.    Pretext for Age Discrimination

Plaintiff has the opportunity “to attack the employer’s proffered reasons as pretexts for discrimination, or to offer any other evidence of discriminatory motive.”  (Moore v. Regents of University of California (2016) 24 Cal.App.4th 216, 235.)  Plaintiff must prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons but a pretext for discrimination.  (McDonnell Douglas, 411 U.S. at pg. 802.)

Plaintiff cannot simply show that the employer’s decision was wrong, mistaken, or unwise, and instead “must demonstrate such weakness, implausibilities, inconsistencies, incoherences, or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable fact finder could rationally find them ‘unworthy of credence,’ and hence infer ‘that the employer did not act for [the asserted] non-discriminatory reasons.”  (Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1005, citing Fuentes v. Perskie (3d Cir. 1994) 32 F.3d 759, 765; Sheridan v. E.I. DuPont de Nemours and Co. (3d Cir. 1996) 100 F.3d 1061, 1072; Stewart v. Rutgers, The State University (3d Cir. 1997) 120 F.3d 426.).)

Plaintiff submitted evidence that Defendant’s proffered reasons for being laid off are pretexts for discrimination.  Specifically, Plaintiff submitted evidence that Defendant did not retain employees based on their contribution to revenue because Defendant’s Chief Financial Officer (“CFO”), Paul Hausback (“Hausback”), testified in his deposition that Peach did not directly bring in revenue.  (P-DSSF 16(d); P-COE Exh. 3 at 41:23-42:2.)  Plaintiff submitted evidence that Defendant’s services that bring in revenue include a print publishing business, a digital publishing business, and a trade show or live events business, and Plaintiff Bracken’s job duties as Defendant’s production director involved overall management of graphical technical services and monitoring expenses of the graphic production department.  (P-DSSF 16(b); P-COE Exh. 2; Exh. 3 at 22:13-17.)  Plaintiff submitted evidence that she was the administrator of LaunchPad, a customer relationship management platform used by Defendant that stores financial sales orders, tracks those sales orders, tracks customer information, and provides billing support for the sales that were recorded, which directly related to Defendant’s revenue operations.  (P-DSSF 16(c), 16(e); Exh. 3 at 51:1-21, Exh. 7 at 18:1-6.)  Plaintiff submitted evidence that while live events could not take place during the first months of the COVID-19 pandemic, Defendant’s printed and digital magazines, which pertained to Plaintiff’s job duties, remained in production.  (P-DSSF 16(b) at Exh. 3 at 21:23-22:7.)  Defendant argues in reply that Plaintiff inaccurately describes her job duties, and the evidence presented is outdated as of the time of her furlough.  (Reply, pgs. 8-.9.)  However, Defendant fails to present evidence as to her correct job description, and indeed in its papers describer her functions as including such things as “managing the workflow, overseeing graphic quality and managing schedules for magazines.” (Motion, pgs. 4-5.)

Furthermore, Plaintiff submitted evidence that Defendant discussed firing Plaintiff as early as January 2019, indicating concerns that Plaintiff was at “a slow end to her career here, nowhere to grow even if she wanted to,” even though Plaintiff’s job performance was not a reason she was laid off.  (P-DSSF 16(g); P-COE Exh. 8 at BBM1060, Exh. 5 at 53:9-21.)  Plaintiff submitted evidence that prior to the COVID-19 pandemic that brought on Defendant’s layoffs and furloughs, Defendant was “afraid it looks too obvious that [Plaintiff’s] job is being dissolved” when it addressed possible ways to replace Plaintiff.  (P-DSSF 16(g); P-COE Exh. 8 at BBM1061.)  Defendants’ statements regarding retaining employees who contributed to Defendant’s revenue, Defendant’s main sources of revenue, Plaintiff’s job duties, and Defendants’ discussions about how to fire Plaintiff prior to the COVID-19 pandemic demonstrate inconsistencies and contradictions such that a reasonable factfinder could rationally find them “unworthy of credence.”  (Hersant v. Department of Social Services, 57 Cal.App.4th at pg. 1005.)  Plaintiff has met her burden on summary adjudication to demonstrate a triable issue of material fact as to whether Defendant’s proffered reasons for her layoff were pretexts for discrimination.

Based on the foregoing, Defendant’s motion for summary adjudication as to the first cause of action for age discrimination is denied.  Accordingly, Defendant’s motion for summary judgment is also denied. 

Failure to Take All Reasonable Steps Necessary to Prevent Discrimination from Occurring In Violation of FEHA, Gov’t. Code §12940(k) (2nd COA)

The elements of a cause of action for failure to prevent discrimination, harassment, or retaliation are: (1) actionable discrimination or harassment by employees or non-employees; (2) the defendant’s legal duty of care toward plaintiff (defendant is plaintiff’s employer); (3) breach of duty (failure to take all reasonable steps necessary to prevent discrimination and harassment from occurring); (4) legal causation; and (5) damages to plaintiff.  (Trujillo v. North County Transit District (1998) 63 Cal.App.4th 280, 287, 289.)  Under the FEHA, it is also prohibited for an employer “to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring in the workplace.”  (Gov. Code §12940(k).)  “Courts have required a finding of actual discrimination or harassment under FEHA before a plaintiff may prevail under section 12940,

subdivision (k).”  (Dickson v. Burke Williams, Inc. (2015) 234 Cal.App.4th 1307, 1314.)

Defendant does not present an argument pertaining to Plaintiff’s second cause of action.

Accordingly, Defendant’s motion for summary adjudication as to the second cause of action for failure to prevent discrimination, harassment, or retaliation is denied.

Wrongful Termination in Violation of Public Policy (3rd COA)

“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.”  (Yau v. Allen (2014) 229 Cal.App.4th 144, 154.)

Defendant does not present an argument pertaining to Plaintiff’s third cause of action.

Accordingly, Defendant’s motion for summary adjudication as to the third cause of action for wrongful termination in violation of public policy is denied.

Based on the foregoing, Defendant’s motion for summary judgment is denied. Defendant’s motion for summary adjudication is denied as to the 1st, 2nd, and 3rd causes of action.

Dated:  January _____, 2023

Hon. Monica Bachner

Judge of the Superior Court