Judge Randolph M. Hammock, Case Number: 21STCV42061, Date: 2023-10-26 Tentative Ruling

Judge: Randolph M. Hammock, Case: 21STCV42061, Date: 2023-10-26 Tentative Ruling

Plaintiff Sarah Leung worked for Defendant Sung Tien Corporation as a Property Assistant. She alleges Defendant terminated her employment after her diagnosis with metastatic lung carcinoma. She brings causes of action against Defendant for (1) Failure to Accommodate, (2) Failure to Engage in Interactive Process, (3) Disability/Medical Discrimination, (4) Failure to Prevent Discrimination, (5) Retaliation, and (6) Wrongful Termination in Violation of Public Policy.

Plaintiff’s objections numbered 3, 4, 7, 10, 15, 16, 19, 20, 22, 26, 27, 38, 39, 43, 44, 46, 47, 48, 51, 53, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 73, 75, 76, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 102, 103, 104, 105, 106, 108, 111, 113, 118, 121, 122, 123, 124, 125, 126, 128, 131, 132 are OVERRULED.

A large portion of Plaintiff’s objections to evidence are based on Defendant’s failure to highlight the relevant testimony within the deposition transcripts. Under Rules of Court, Rule 3.1116(c), “[t]he relevant portion of any testimony in the deposition must be marked in a manner that calls attention to the testimony.” While Defendant has failed to comply with this requirement, Plaintiff has not been unfairly prejudiced by the failure. Plaintiff has addressed and countered the evidence in detail in its separate statement, which demonstrates that it located the relevant transcript portions, no matter how “onerous” that process might have been.

Plaintiff’s request to strike Defendant’s new evidence in reply is also OVERRULED. As a general rule, new evidence may not be submitted in reply. But “a trial court may properly consider new evidence submitted with a reply brief ‘so long as the party opposing the motion for summary judgment has notice and an opportunity to respond to the new material.’” (Wall St. Network, Ltd. v. New York Times Co. (2008) 164 Cal. App. 4th 1171, 1183.) Plaintiff will be given the opportunity to address the new evidence at the hearing, as necessary. Be that as it may, this court’s tentative is to DENY the motion even with the new evidence.

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843. 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 Center (2005) 135 Cal.App.4th 289, 294. Thus, summary judgment is granted when, after the Court’s consideration of the evidence set forth in the papers and all reasonable inferences accordingly, no triable issues of fact exist and the moving party is entitled to judgment as a matter of law. Code Civ. Proc. § 437c(c); Villa v. McFarren (1995) 35 Cal.App.4th 733, 741.

As to each claim as framed by the Complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520. Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” Dore v. Arnold Worldwide, Inc.¿(2006) 39 Cal.4th 384, 389. A defendant has met its burden of showing that a cause of action has no merit if it demonstrates the absence of any single essential element of plaintiff’s case or a complete defense to plaintiff’s action. Code Civ. Proc. § 437c(o)(2); Bacon v. Southern Cal. Edison Co. (1997) 53 Cal.App.4th 854, 858. Once the defendant moving party has met the burden, the burden shifts to the plaintiff to show via specific facts that a triable issue of material facts exists as to a cause of action or a defense thereto. § 437c(o)(2).

On or about June 4, 2021, Plaintiff was diagnosed with stage III non-small cell lung cancer. (Id. ¶ 12.) Near the end of June 2021, “Plaintiff learned that she would soon be starting radiation treatments for what was now confirmed to be metastatic lung carcinoma, which had also spread to Plaintiff’s brain.” (Id. ¶ 13.) Plaintiff notified Defendant of her upcoming daily radiation treatments. (Id.) Plaintiff informed Defendants that she would come to work after her morning radiation treatments. (Id.)

Plaintiff started radiation treatments on July 8, 2021 and informed Defendant of this fact, but noted she would “continue working normal hours” as much as possible. (Id. ¶¶ 14, 16.) She also requested leave of absence “on days of absolute rest.” (Id.) Around this time, she notified Defendant she would need to take 11 days off in August to rest during the final weeks of her treatment. (Id. ¶ 16.)

In mid-July 2021, Plaintiff noticed a new Property Assistant, David. (Id. ¶ 17.) “The timing of the hire caused Plaintiff to become concerned about whether she would be replaced by David. Around this time, STC also oddly ordered Plaintiff to transfer some of her properties to other Property Assistants.” (Id. ¶ 17.)

After Plaintiff returned from a doctor’s appointment on July 30, 2021, she “was blindsided by an email from Ms. Hsu terminating her employment (effective August 6, 2021) for alleged poor performance.” (Id. ¶ 18.) “Plaintiff was shocked by her sudden termination, especially since she had not been warned or counseled about any alleged poor performance. It was readily apparent to Plaintiff she was being terminated because of her cancer diagnosis and because of her requests for and need for reasonable accommodations.” (Id.)

The elements of a failure to accommodate claim are “(1) the plaintiff has a disability under the FEHA, (2) the plaintiff is qualified to perform the essential functions of the position, and (3) the employer failed to reasonably accommodate the plaintiff's disability.” (Scotch v. Art Inst. of California (2009) 173 Cal. App. 4th 986, 1009–10.)

“The ‘interactive process' required by the FEHA 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. [Citation.] Ritualized discussions are not necessarily required.” (Scotch v. Art Inst. of California (2009) 173 Cal. App. 4th 986, 1013.) Where a Defendant knows the offered accommodations are insufficient—even though the employer has offered all of those requested by the employee—it may still trigger [an employer’s] duties to engage in the interactive process and to consider any and all reasonable accommodations.” (Lin v. Kaiser Found. Hosps. (2023) 88 Cal. App. 5th 712, 729.)

To begin with Defendant’s burden, it presents evidence that it did reasonably accommodate Plaintiff’s disability by giving her medical leave. (See Hanson v. Lucky Stores, Inc. (1999) 74 Cal. App. 4th 215, 226 [holding “a finite leave can be a reasonable accommodation under FEHA, provided it is likely that at the end of the leave, the employee would be able to perform his or her duties”].) Based on these same facts, Defendant contends it engaged in an interactive process.

Defendant presents evidence that it allowed Plaintiff to take time off when necessary to undergo treatment and work flexible hours. (SSUMF 14, 32, 33.) Defendant provide Plaintiff with alternative building access though the side door to make it easier for her to come to work. (SSUMF 38). In an effort to reduce Plaintiff’s workload, employees took on some of Plaintiff’s work when Plaintiff was out of the office. (SSUMF 29.) Defendant has therefore met its burden to demonstrate that it offered Plaintiff reasonable accommodations and engaged in an interactive process. This switches the burden to Plaintiff to establish a triable issue.

It is largely undisputed that while employed, Defendant allowed Plaintiff to work a flexible schedule and take time off for treatment. Plaintiff notes, however, that Defendants terminated her employment on July 29, 2021 – the day after Leung submitted her request for an extended leave of absence in August 2021. (SSDMF 12, 17.)

This presents a triable issue as to the sufficiency of the accommodation and interactive process. Indeed, based on the timing, a reasonable factfinder could conclude that Plaintiff’s termination demonstrates Defendant’s failure to offer reasonable accommodations or engage in a good faith interactive process. In so finding, this court also notes that “ ‘[b]ecause the FEHA is remedial legislation,” the court “must construe the FEHA broadly, not ... restrictively.” (Vernon v. State of California (2004) 116 Cal. App. 4th 114, 123.)

When ruling on a motion for summary adjudication in the context of a discrimination claim, “the trial court will be called upon to decide if the plaintiff has met his or her burden of establishing a prima facie case of unlawful discrimination. If the employer presents admissible evidence either that one or more of plaintiff's prima facie elements is lacking, or that the adverse employment action was based on legitimate, nondiscriminatory factors, the employer will be entitled to summary judgment unless the plaintiff produces admissible evidence which raises a triable issue of fact material to the defendant's showing. (Moore v. Regents of Univ. of California (2016) 248 Cal. App. 4th 216, 236 [emphasis in original].) “Whether judgment as a matter of law is appropriate in any particular case will depend on a number of factors. These include the strength of the plaintiff's prima facie case, the probative value of the proof that the employer's explanation is false, and any other evidence that supports the employer's case....[Citation.] However, ‘many employment cases present issues of intent, ... motive, and hostile working environment, issues not determinable on paper. Such cases ... are rarely appropriate for disposition on summary judgment, however liberalized [summary judgment standards may] be.” (Id. [emphasis in original].)

Generally, to make prima facie case for FEHA discrimination, “the plaintiff must provide evidence that (1) he was a member of a protected class, (2) he was qualified for the position he sought or was performing competently in the position he held, (3) he suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some other circumstance suggests discriminatory motive.” (Guz v. Bechtel Nat. Inc. (2000) 24 Cal. 4th 317, 355.)

“[T]he employer, as the moving party, has the initial burden to present admissible evidence showing either that one or more elements of plaintiff's prima facie case is lacking or that the adverse employment action was based upon legitimate, nondiscriminatory factors.” (Galvan v. Dameron Hosp. Assn. (2019) 37 Cal. App. 5th 549, 559.)

Defendant presents evidence it terminated Plaintiff because of poor job performance. Defendant contends Plaintiff could not perform basic clerical functions in Microsoft Office or software applications. (SSUMF 92, 93.) Plaintiff was “forgetful” and struggled with minor tasks such as remembering building access codes. (SSUMF 94, 100.)

Defendant presents further evidence that Plaintiff argued with tenants and landlords. (SSUMF 105.) She was “condescending and hostile” towards vendors. (SSUMF 109.) Defendant contends that three vendors—Racquet Mountain HOA, Fullerton Valley HOA, and ACI Center—terminated their accounts with Defendant based on issues with Plaintiff. (SSUMF 121, 123, 155.) This means Plaintiff had lost three of the five accounts she was assigned. (SSUF 243). Considering this evidence, this Court finds that for purposes of this motion the Defendant has established legitimate, nondiscriminatory factors for Plaintiff’s termination.

Hence, this finding shifts the burden to Plaintiff to “offer substantial evidence that the employer's stated nondiscriminatory reason for the adverse action was untrue or pretextual, or evidence the employer acted with a discriminatory animus, or a combination of the two, such that a reasonable trier of fact could conclude the employer engaged in intentional discrimination.” (Foroudi v. Aerospace Corp. (2020) 57 Cal. App. 5th 992, 1007.) “Although an employee's evidence submitted in opposition to an employer's motion for summary judgment is construed liberally, it ‘remains subject to careful scrutiny.’” [Citation.] (Id. [emphasis added].) Moreover, the “stronger the employer's showing of a legitimate, nondiscriminatory reason, the stronger the plaintiff's evidence must be in order to create a reasonable inference of a discriminatory motive.” (Id. at 1008.)

Plaintiff also disputes that she was the reason for the loss of the three clients. Plaintiff notes she received a merit-based bonus and salary increase at the end of 2020. (SSDMF 93.) These bonuses occurred around the same time that Defendant lost accounts with Racquet Mountain HOA and Fullerton Valley HOA—losses that Defendant now attributes to Plaintiff. (SSDMF 120-123.) Plaintiff also presents evidence that ACI Center, who terminated their account with Defendant in July of 2021, had an account “delinquent in the amount of $191,667.91.” (SSDMF 125.)

Here, the timing of Plaintiff’s termination alone raises legitimate questions of discrimination. (See Flait v. North American Watch Corp. (1992) 3 Cal.App.4th 467, 479 [“Pretext may ... be inferred from the timing of the company's termination decision, by the identity of the person making the decision, and by the terminated employee's job performance before termination.”].) It is also notable that Defendant has provided little, if any, contemporaneous documentation reflecting disciplinary write-ups or “coaching” materials to suggest that Defendant or its vendors were unsatisfied with Plaintiff’s job performance.

In addition, Defendant’s explanation for Plaintiff’s termination leaves further significant questions. Two of the accounts that terminated relationships with Defendant, purportedly because of dissatisfactions with Plaintiff, occurred in 2020. But it is undisputed that Plaintiff receive praise for her job performance and merit-based financial incentives near the end of 2020. One would not reasonably expect an employee to receive praise and merit-based bonuses around the time that employee caused the employee to lose two accounts.

Finally, it is indeed notable that Andrew Kuo, owner of ACI Center, now submits a declaration in support of Defendant’s motion. In a writing dated December 14, 2021, Kuo stated that his dissatisfaction with Plaintiff and the “professional service” she offered “is the reason [he] terminate[d] the relationship with STC” in July 2021. (Kuo Decl., Exh. P.) Defendant, however, has provided no contemporaneous evidence from around the time of the termination that suggests Plaintiff was the reason for the end of the relationship between ACI Center and Defendant. And when considering that Kuo’s company at one point owed nearly $200,000 to Defendant, a jury should consider Kuo’s motivations for making this statement at the time he does.

Thus, by construing Plaintiff’s evidence liberally and resolving all evidentiary doubts in her favor, this court concludes that Plaintiff has carried her burden to demonstrate a dispute of triable fact. (Foroudi, 57 Cal. App. 5th at 1007; Horn v. Cushman & Wakefield Western (1999) 72 Cal.App.4th 798, 807 [court must identify “weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its action that a reason able factfinder could rationally find them unworthy of credence.”].)

Next, Defendant argues Plaintiff’s Fourth cause of Action for failure to prevent discrimination and retaliation fails with her underlying claims. “[C]ourts have required a finding of actual discrimination or harassment under FEHA before a plaintiff may prevail under section 12940, subdivision (k)” for failure to prevent discrimination. (Dickson v. Burke Williams, Inc., (2015) 234 Cal. App. 4th 1307, 1314.)

“[T]o establish a prima facie case of retaliation under the FEHA, a plaintiff must show (1) he or she engaged in a ‘protected activity,’ (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer's action.” (Cornell v. Berkeley Tennis Club (2017) 18 Cal. App. 5th 908, 942.)

A claim for wrongful discharge in violation of public policy requires the employee to prove (1) he or she was employed by the employer, (2) the employer discharged the employee, (3) the alleged violation of public policy was a motivating reason for the discharge, and (4) the discharge caused the employee harm. (Haney v. Aramark Unif. Servs. Inc. (2004) 121 Cal. App. 4th 623.)