Judge Peter A. Hernandez, Case Number: 22STCV25393, Date: 2024-09-05 Tentative Ruling

Defendant Arcadia Unified School District’s Motion for Summary Judgment is Denied. The Motion for Summary Adjudication is DENIED, in part, as to the First, Second and Fourth Causes of Action, and GRANTED, in part, as to the Third and Fifth Causes of Action.

Plaintiffs John Atherton (“Ethan”) and Victoria Bergeron (“Victoria”) (together, “Plaintiffs”) allege as follows:

Plaintiff was hired as a delivery driver for the Defendant Arcadia Unified School District (“Defendant”), and was employed through his termination in February 2022. Plaintiff successfully completed his probationary period and had a vested interest in his employment. While employed, Plaintiff was injured on the job resulting in his having surgery performed. Plaintiff reinjured himself, resulting in another surgery. In February 2022, Plaintiff was ready, will and able to return to work. Prior to returning to work, Defendant had received two reports from Plaintiffs doctor. Despite possessing these reports, Defendant requested additional information regarding Plaintiffs condition and ability to return to work. In response to this supplemental request, Plaintiff’s doctor supplied the requested information on February 8, 2022. In response to the request, Plaintiff’s doctor indicated: (1) Plaintiff was not a danger to himself or third parties. (2) At most, Plaintiff would take 15 minute breaks, as needed, to let dizzying spells pass. The doctor indicated when Plaintiff felt discomfort from the dizzing spells, they should pass in about 15 minutes. (3) The need for the 15 minutes breaks was temporary and only expect to last for 30 days. Aside from the possible need for an occasional break, Plaintiff was ready, willing and able to return; (4) Plaintiff is able to perform all of his job functions and return to full duty. Despite the need for sporatic or occasional 15 breaks for a 30 day period, the District terminated him. While the District held a meeting with Plaintiff, it was not held in good faith as it had made the decision to terminate the Plaintiff days before the pretextual meeting to discuss his return to work. This meeting was not held in good faith.

On August 5, 2022, Plaintiff filed a complaint, asserting the following causes of action against Defendant and Does 1-10 for:

3. Failure to Engage in a Good Faith Interactive Process (Cal. Gov. Code § 12940(n));

4. Failure to Prevent Discrimination and Retaliation (Cal. Gov. Code § 12940(k)); and,

On June 21, 2024, Defendant filed a Motion for Summary Judgment or, in the Alternative, Summary Adjudication (“Motion”). On August 22, 2024, Plaintiff filed his Opposition.

The Final Status Conference is set for October 9, 2024. Trial is set for October 21, 2024.

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 a judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119 [emphasis theirs].)

“On a motion for summary judgment[/adjudication], 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.) A defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(2).) “Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Code Civ. Proc., § 437, subd. (p)(2).) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.) However, the court must liberally construe evidence in support of the party opposing summary judgment and resolve all doubts concerning the evidence in favor of that party. (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)

Defendant moves the court for summary judgment in its favor and against Plaintiff; in the alternative, Defendant seeks summary adjudication as follows:

1. That there are no triable issues of material fact as to the Plaintiff’s First Cause of Action for Disability Discrimination.

2. That there are no triable issues of material fact as to the Plaintiff’s Second Cause of Action for Failure to Accommodate.

3. That there are no triable issues of material fact as to the Plaintiff’s Third Cause of Action for Failure to Engage in a Good Faith Interactive Process.

4. That there are no triable issues of material fact as to the Plaintiff’s Fourth Cause of Action for Failure to Prevent Discrimination and Retaliation.

5. That there are no triable issues of material fact as to the Plaintiff’s Fifth Cause of Action for Wrongful Termination in Violation of Public Policy.

As a preliminary matter, on August 22, 2024, Plaintiff filed along with his Opposition a “Separate Statement of Undisputed Material Facts in Support of Motion for Summary Judgment or in the Alternative, Motion for Summary Adjudication (“Plaintiff’s Separate Statement”).[2]

California Rules of Court (“CRC”) Rule 3.1350, subdivision (f)(2) provides that an opposing separate statement must “unequivocally state” whether a fact is “disputed” or “undisputed,” and that “[a]n opposing party who contends that a fact is disputed must state, on the right side of the page directly opposite the fact in dispute, the nature of the dispute and describe the evidence that supports the position that the fact is controverted. Citation to the evidence in support of the position that a fact is controverted must include reference to the exhibit, title, page, and line numbers.” For each of the separate statements concerning the causes of action, Plaintiff does not comply with this provision and merely cites to the following in the support evidence column:

Defendant's Undisputed Material Facts 28 are identical to Facts 1-27 and are not addressed separately in Defendant's Memorandum of Points and Authorities. Plaintiff therefore refers the Court to the district asked the plaintiff to have his responses and supporting evidence provided doctor provide more information for Facts 1-27.

The plaintiff filed this lawsuit alleging causes of action against the Defendant for: (1) disability discrimination, (2) failure to accommodate, (3) failure to engage in the interactive process, (4) failure to prevent discrimination and retaliation, and (5) wrongful termination in violation of public policy. Plaintiff worked for Defendant as a Nutrition Services Delivery Driver.

The essential functions of Plaintiff’s job included: loading, unloading and driving a district truck to transport and deliver prepared meals, food, supplies and related items to various school sites. Plaintiff’s essential job functions included: knowledge of safe, courteous, legal and defensive driving practices; safe operation of motor vehicles; ability to operate a district truck in a safe, courteous and legal manner; observe traffic laws, practice defensive driving; operation of a variety of equipment and machines related to warehouse duties; safely load and unload trucks; observe safe lifting and carrying practices; and meet schedules and timelines. Specifically, Plaintiff was tasked with driving a district vehicle and loading and unloading trucks with food for students and delivering warm breakfast by 6:30 am to various school sites during his morning run. About 99.9% of his workday involved driving school district vehicles between school sites and delivering food/lunches to students. Plaintiff would make several runs between the Food Services office and the various school sites throughout the school day delivering meals, food ingredients and other items to those school sites.

Plaintiff was on an approved medical leave from May 2021 through February 2022. He was not released to return to work during this time frame. Plaintiff received a letter dated January 10, 2022 from Defendant informing him that February 8, 2022 would be his last day in paid status with the district and that effective February 8, 2022, he would have to exhaust his allowance of 100 days of Extended Illness Leave at 50% of his monthly salary as well as all accumulated sick and vacation leave. Plaintiff was also informed that effective February 9, 2022 under the provisions of Education Code 45192, his compensation would cease and he will be placed on the 39 month reemployment list. Plaintiff was also informed that if during the 39 month period he became medically able to work, he could return to the next available position in the same classification as the position he current held upon presentation from a physician releasing him to work. Plaintiff was informed that if he returns to full employment with the district during this 39 month period, there will be no loss of seniority and he will retain his present placement on the salary schedule.

Plaintiff was further informed that under the provisions of Education Code section 45192, he had the right to request additional leave. Plaintiff was also informed that he would be offered an interactive reasonable accommodation meeting pursuant to Government Code section 12940 and was invited to contact the district to participate in such interactive reasonable accommodation meeting. Plaintiff did not ask for any reasonable accommodation, nor did he initiate any interactive process.

Plaintiff ‘s wife gave the district a doctor’s note from LA Surgical dated February 3, 2022, indicating the following: “is clear [sic] to return to work on 2/8/22… may need to take additional breaks during work to eat more frequently due to surgery.” Plaintiff had no idea what the doctor’s note stated before he turned it into the district; he just called the doctor’s office and asked for a return to work note. He never looked at the return to work note; he just turned it in. Plaintiff does not know why this doctor’s note released him to return to work with no restrictions when he felt he had some restrictions on his ability to perform his essential duties especially in regard to driving a district vehicle under time constraints to make food deliveries to school sites.

Plaintiff gave the district a second doctor’s note dated February 7, 2022, that indicated the following: “patient is cleared to return to work on 02/08/2022. Restrictions: Please allow pt [patient] to take breaks as needed when feeling dizzy, lightheaded or weak.” Knowing that his paid leave status would be ending soon, on February 7, 2022, Plaintiff met with district personnel and they had an interactive meeting to discuss accommodations Plaintiff required to return to work.

The purpose of the meeting was to discuss the Plaintiff’s work restrictions and inconsistencies between Plaintiff’s statements versus the contents of his doctor’s notes. When discussing the restriction of requiring frequent breaks for dizzy spells to pass, Plaintiff stated that he was not ready to come back to work. Plaintiff then stated that frequent breaks were needed because he gets dizzy spells and has periods of light-headedness. At the conclusion of the meeting the Plaintiff was asked to supply his doctor with a Supplemental Medical Questionnaire for further clarification on his medical condition. Plaintiff discussed with district personnel that his doctor had released him to return to work with restrictions (although the doctor’s noted stated otherwise). Safety concerns were discussed given that the restrictions were incompatible with the duties of his job to safely operate a district vehicle and that he adhere to a schedule for food delivery. Due to ambiguities and inconsistencies in the two doctor’s notes coupled with statements by Plaintiff, Defendant asked the Plaintiff’s doctor to provide supplemental medical information. Plaintiff’s doctor completed a Supplemental Medical Questionnaire Request on February 8, 2022.

A second interactive meeting was held on February 9, 2022 to discuss the supplemental medical questionnaire which contained inconsistencies and was intended to again discuss possible accommodations and next steps. At the second interactive meeting Plaintiff explained he needed breaks if he felt dizzy while driving and that he would need to pull his vehicle over and rest until the dizzy spell past. This presented serious safety concerns for the Plaintiff and others and was not compatible with the essential functions of his job that required him to safely drive a district vehicle on time constraints to deliver food to school sites. Plaintiff explained that the dizzy spells were caused by low blood sugar levels but he was not taking any medication for this condition. Plaintiff further explained that he had no way to predict when the dizzy spells would happen.

The district was concerned about the Plaintiff’s ability to safely operate the food delivery trucks delivering food to students at various school sites within time constraints. Plaintiff’s report of dizzy spells and periods of lightheadedness raised several safety concerns, especially when considering that a significant portion of Plaintiff’s workday involved driving district vehicles to various school sites for food delivery within an established schedule. Plaintiff confirmed that gastric bypass surgery affected his health and certain food consumption affected his blood sugar levels that in turn caused him to experience dizzy spells and that he needed breaks “every once in a while.” This problem happened every time he ate or drank something; so, he would need breaks because of dizzy spells and the dizzy spells might go away and about 15 minutes. Plaintiff explained to Defendant that if he got dizzy while driving a school district vehicle, he would have to pull over his vehicle and wait for the dizzy spell to pass. At this interactive meeting, Plaintiff explained that he needed breaks because he gets dizzy, but his doctor did not make any mention of this in the return to work note. Thus, Defendant asked the Plaintiff to have his doctor provide more information clarifying this restriction, especially in light of his essential work duties that required driving under time constraints to make food deliveries to school sites. Plaintiff also mentioned that he experienced dizzy spells prior to this interactive meeting. Based on the Plaintiff’s statements of needing breaks due to dizzy spells that could last up to 15 minutes, this represented approximately 15 minutes of each potential hour spent off the clock. After consideration of the breaks already provided, Plaintiff would still require additional 15 minute breaks at unexpected times equaling to a loss of work hours during the day including lost time and loss of productivity during plaintiff’s normal shift. Additionally, this would severely impact timely delivery to each school site and result in an undue burden on food services throughout the district. The primary concern, however, involved safety concerns related to the Plaintiff’s ability to safely operate a large district truck delivering food to schools within time restraints, and avoid injury or harm to himself or others. During the interactive meeting, district personnel discussed their concerns for plaintiff’s and others’ safety if he was driving a district vehicle and experienced a dizzy spell that he may lose control of the vehicle. They also discussed liability concerns presented by the situation.

Defendant’s early return to work program allows modified or transitional assignments for employees with temporary work restrictions for a maximum of 90 workdays when restrictions can be accommodated. Defendant concluded they were not able to accommodate plaintiff’s restrictions. To this end, Plaintiff’s doctor states that he did “not” have an impairment that limits the ability to engage in a major life activity but that “yes” he does have an impairment that affects his ability to perform the essential functions of the position. That impact, as well as the impact on the safety considerations, delivery schedules and plaintiff’s inability to safely operate and large district vehicle safely without regular breaks when dizziness and/or lightheadedness occur, places a significant and undue burden on the district and raises serious safety concerns for plaintiff and others, especially that the dizziness or lightheadedness seemed unpredictable and unexpected.

On February 8, 2022, Defendant’s Board of Education met and approved the placement of Plaintiff on the district’s 39 month reemployment list. Plaintiff remains on this list and no positions have opened up that he was qualified to perform. (UMF-22) On February 10, 2022, Defendant sent Plaintiff a letter informing him that on February 8, 2022 he had exhausted all leave, paid or unpaid, available to him under Education Code and as a result he was being placed on the reemployment list for a period of 39 months. Plaintiff has no information that Defendant violated his union contract in this case, nor did he file any grievance with his union. Plaintiff did not resign from his employment and he never received anything from the district indicating that he was fired. Plaintiff remains on the school district’s 39 month rehire list and will be considered for any open position that comes up and that he is qualified to perform. The plaintiff did not present any government tort claim to the school district prior to his having filed this lawsuit.

(Defendant’s Separate Statement of Undisputed Material Facts (“UMF”) Nos. 1-27.)

The court finds that Defendant has met its initial burden of proof as to the causes of action. The court will consider Plaintiff’s evidence to determine whether there are any triable issues of facts as to each cause of action.

For an employer, because of the . . . physical disability, . . . medical condition, . . . 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.

However, this section “does not prohibit an employer from refusing to hire or discharging an employee with a physical or mental disability, or subject an employer to any legal liability resulting from the refusal to employ or the discharge of an employee with a physical or mental disability, if the employee, because of a physical or mental disability, is unable to perform the employee's essential duties even with reasonable accommodations, or cannot perform those duties in a manner that would not endanger the employee's health or safety or the health or safety of others even with reasonable accommodations.” (Id., § 12940(a)(1) [emphasis added].) Moreover, this section shall not “subject an employer to any legal liability resulting from the refusal to employ or the discharge of an employee who, because of the employee's medical condition, is unable to perform the employee's essential duties, or cannot perform those duties in a manner that would not endanger the employee's health or safety or the health or safety of others even with reasonable accommodations.” (Id., § 12940(a)(2) [emphasis added].)

To prove his case, Plaintiff must first establish a prima facie case of discrimination by showing that he “(1) suffered from a disability, or was regarded as suffering from a disability; (2) could perform the essential duties of the job with or without reasonable accommodations[;] and (3) was subjected to an adverse employment action because of the disability or perceived disability.” (Willis v. Superior Court (2011) 195 Cal.App.4th 143, 159.) If a prima facie case has been shown, “the burden shifts to the [D]efendant to [articulate a] legitimate nondiscriminatory reason for its employment decision.” (Id. at 160.) If Defendant is able to do so, then Plaintiff may satisfy his “burden by proving the legitimate reasons offered by the defendant were false, creating an inference that those reasons served as a pretext for discrimination.” (Id.)

Thus burden shifting elements only apply at trial. (Swanson v. Morongo Unified School District (2014) 232 Cal.App.4th 954, 964-65.) Here, the court’s focus is to determine whether Defendant can demonstrate that there are no triable issues that Plaintiff suffered from a disability, that he could perform the essential duties of the job with or without reasonable accommodation, and that his disability was a substantial motivating factor in an adverse employment decision. (McDonnell Douglas v Green (1973) 411 U.S. 792; Wallace v County (2016) 245 Cal App 4th 109.)

It is undisputed that Plaintiff worked for Defendant as a Nutrition Services Delivery Driver. (Defendant’s Separate Statement (“DSS”) 2.) His job included loading, unloading and driving a district truck to transport and deliver prepared meals, food, supplies and related items to various school sites. (Id.) In his deposition, Plaintiff testified that 70% of his work day involved driving a District vehicle. (DSS 3.) As a result, the question here is one whether Plaintiff could perform the essential job function of driving Defendant’s vehicle with or without an accommodation. (Nadaf v Neiman Marcus (2008) 166 Cal.App.4th 952.)

Plaintiff provided two doctor’s notes that are undisputed attesting to his medical condition. The first note stated: “Is clear to return to work in 2/8/22. May need to take additional breaks during work to eat more frequently due to surgery.” (DSS 7; Declaration of Nancy Doumanian (“Doumanian Decl.”), Exhibit E.) Defendant contends that Plaintiff raised concern that he was being released when, in fact, the doctor noted that Plaintiff needed additional breaks. (DSS 9.) However, Plaintiff contends he was not concerned and did not perceive that he had any limitations in performing his essential job function, including driving under time constraints. (DSS 9.)

The second note stated: “Patient is cleared to return to work on 02/08/2022 Restrictions: Please allow pt to take breaks as needed when feeling dizzy, light headed, or weak.” (DSS 11; Doumanian Decl., Exhibit F.) A third statement from Plaintiff’s doctor in the form of a Medical Questionnaire first states the Plaintiff “does not have a physical or mental impairment that limits his/her ability to engage in a major life activity” but later provides that the impairment (which the doctor denied Plaintiff having) “does affect his/her ability to perform the essential functions” of a Warehouse Delivery Driver. (DSS 13; Doumanian Decl. Exhibit G.) Additionally, the doctor elaborated: “On occasion patient will need to take extra rest periods to alleviate discomfort due to his ailment. When and if such episodes arise, patient can feel discomfort at its onset and that ample time to put himself in a position to let the discomfort passed. Episode should be able to be resolved within 15 minutes of onset and patient will be able to carry on with his tasks. Such episodes and need for additional rest periods will not interfere with the patient’s ability to complete assigned tasks and perform his job responsibilities.” (Id.)

The court finds that there is a triable issue of fact whether Plaintiff could perform his essential job function with the accommodations set forth by Plaintiff’s doctors. The court understand that there are Department of Motor Vehicles provisions that are not before this court that may take issue with the doctor’s stated conclusions, but those are matters to be decided by a fact finder and the court cannot at this time.

Because the court finds a triable issue as to the First Cause of Action, the Motion for Summary Judgment is DENIED and the Motion for Summary Adjudication as to the First Cause of Action is also DENIED.

For an employer or other entity covered by this part to fail to make reasonable accommodation for the known physical or mental disability of an applicant or employee. Nothing in this subdivision or in paragraph (1) or (2) of subdivision (a) shall be construed to require an accommodation that is demonstrated by the employer or other covered entity to produce undue hardship, as defined in subdivision (u) of Section 12926, to its operation.

To prevail on this claim, the plaintiff must prove that (1) the plaintiff had a disability; (2) the plaintiff is a qualified individual and that he can perform the essential functions of the position; and (3) the employer failed to reasonably accommodate the plaintiff’s disability. (Hernandez v. Rancho Santiago (2018) 22, Cal.App.5th 1187, 1193-94.) Section (m)(1) does not obligate the employer to accommodate the employee by excusing him/her from the performance of all the essential functions. (Nealy v Santa Monica (2015) 234 Cal App 4th 359, 375.) Moreover, failure to accommodate claims are not subject to the McDonnell Douglas burden shifting framework. (Cornell v. Berkeley Tennis Club (2017) 18 Cal.App.5th 908, 926.)

Here, as shown in the discussion of Cause of Action No. 1, there is a triable issue whether Defendant was a qualified individual who could perform the essential functions of Warehouse driver and whether Defendant failed to accommodate based on the recommendation set forth by Plaintiff’s doctor

For an employer or other entity covered by this part to fail to engage in a timely, good faith, interactive process with the employee or applicant to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee or applicant with a known physical or mental disability or known medical condition.

“The interactive process required by [section 1240(n)] is an informal process with the employee or the employee's representative, to attempt to identify a reasonable accommodation that will enable the employee to perform the job effectively. Ritualized discussions are not necessarily required.” (Wilson v. County of Orange, 169 Cal.App.4th 1185, 1195 [citation omitted].) “Liability hinges on the objective circumstances surrounding the parties' breakdown in communication, and responsibility for the breakdown lies with the party who fails to participate in good faith." (Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1014.)

Plaintiff contends that Defendant did not provide any facts that it engaged in a good faith interactive process. (Opposition, at p. 9.) However, here, the parties met on two occasions. Both meeting concerned the doctor’s notes and what exactly were the reasonable accommodations he was proposing. (CITE) The accommodations set forth by Plaintiff’s doctor were rejected by the Defendants given the nature of Plaintiff’s essential job function and the risk of public safety associated with his medical condition. (CITE) The fact that the interactive process was unsuccessful does not mean it was not made in good faith.

For an employer, labor organization, employment agency, apprenticeship training program, or any training program leading to employment, to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring.

Defendant’s contention is that because “[P]laintiff has failed to raise any triable issues of material fact as to the underlying disability discrimination claim, and thus the related claim for failure to prevent that is derivative of the disability discrimination claim, this claim fails.” (Motion, at p. 9.) To the extent the court has found that Plaintiff has raised triable issues as to the First Cause of Action, the Motion for Summary Adjudication as to the Fourth Cause of Action is DENIED.

Defendant asserts that Plaintiff needed to comply with the Government Claims Act before proceeding with the Wrongful Termination in Violation of Public Policy. (Motion, at p. 9.)

In Miklosy v. Regents of University of California (2008) 44 Cal.4th 876, 899, the California Supreme Court held:

The Government Claims Act (§ 810 et seq.) establishes the limits of common law liability for public entities, stating: ‘Except as otherwise provided by statute: [¶] (a) A public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person.’ (§ 815, subd. (a), italics added.) The Legislative Committee Comment to section 815 states: ‘This section abolishes all common law or judicially declared forms of liability for public entities, except for such liability as may be required by the state or federal constitution, e.g., inverse condemnation....’ (Legis. Com. com., 32 West's Ann. Gov.Code (1995), foll. § 815, p. 167, italics added.) Moreover, our own decisions confirm that section 815 abolishes common law tort liability for public entities. (See Eastburn v. Regional Fire Protection Authority (2003) 31 Cal.4th 1175, 1179, 7 Cal.Rptr.3d 552, 80 P.3d 656; Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1127–1128, 119 Cal.Rptr.2d 709, 45 P.3d 1171; see also Adkins v. State of California (1996) 50 Cal.App.4th 1802, 1817–1818, 59 Cal.Rptr.2d 59; Michael J. v. Los Angeles County Dept. of Adoptions (1988) 201 Cal.App.3d 859, 866–867, 247 Cal.Rptr. 504.)

In order to proceed with a tort claim for damages against a public entity, Plaintiff was required to comply with Claims Act set forth in Government Code section 900 et seq. While Miklosy concerned a Wrongful Termination in Violation of Public Policy cause of action concerning the Whistleblower Act, the Court was clear that section 815 covered generally “common law tort liability for public entities.” Plaintiff failed to respond to the contention that a claim needed to be made to Defendant prior to filing of the Complaint. (Opposition, at p. 10-11; see also DSS 27.) As Defendant is a public agency, Plaintiff needed to file a Government Claims Act concerning this cause of action before proceeding with this lawsuit.

Based on the foregoing, the Motion for Summary Judgment is Denied. The Motion for Summary Adjudication as to First, Second and Fourth Causes of Action are DENIED, and GRANTED as to the Third and Fifth Causes of Action.

[1] The Motion was filed (and personally served to Plaintiff’s counsel) on June 21, 2024 and originally set for hearing on September 5, 2024..

[2] Plaintiff’s Separate Statement is incorrectly titled “Defendant’s Separate Statement” and contains the masthead for Defendant’s counsel.