Vivian Ortiz v. MUFG Union Bank, N.A.

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION

 

MOVING PARTY: Defendant MUFG Union Bank, N.A 

RESPONDING PARTY(S): Plaintiff Vivian Ortiz

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiff Vivian Ortiz worked for Defendant MUFG Union Bank, N.A., as a Customer Service Specialist. Despite her positive performance, Plaintiff alleges Defendant terminated her employment after Plaintiff complained that Defendant refused to reimburse her for wifi and phone while working remotely.

Defendant now moves for summary judgment, or in the alternative, summary adjudication. Plaintiff opposed.

TENTATIVE RULING:

Defendant’s Motion for Summary Judgment is GRANTED.

Defendant is ordered to file a [Proposed] Judgment consistent with this ruling.

Defendant is ordered to give notice, unless waived.

DISCUSSION:

Motion for Summary Judgment 

I. Judicial Notice

Pursuant to Defendant’s request, the court takes judicial notice of Defendant’s Exhibits A through G.

II. Evidentiary Objections

Pursuant to CCP § 437c(q), this court rules only on objections material to the disposition of this motion, as follows:

Plaintiff’s unnumbered objections to the declaration of Kathie Ortega, Jennifer Brown, and Sheryl Appelt, and exhibits thereto are OVERRULED.  [FN 1]

Defendant’s objections numbered 4, 5, 6, 7, 23 32, and 33 are OVERRULED.

III. Legal Standard

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).

IV. Analysis

A. Whistleblower Retaliation Under Labor Code Section 1102.5 (First Cause of Action)

First, Defendants argue the whistleblower retaliation cause of action fails because Plaintiff did not engage in a protected activity. 

As alleged in the Complaint, Plainiff worked for Defendant MUFG Union Bank as a Customer Service Representative. (Compl. ¶ 16.) While working from home during the Covid-19 pandemic, “Defendants did not reimburse Plaintiff for her Wi-Fi expenses and/or phone, both of which she was required to use to complete her job duties.” (Id. ¶ 17.) Plaintiff raised complaints to her manager, Kathie Ortega, about this in July or August of 2020. (Id. ¶ 18.) Ortega informed Plaintiff the company was not required to reimburse those expenses. (Id.)

On September 18, 2020, Plaintiff’s Wi-Fi went down while she was working from home.” (Id.) “Plaintiff notified Ortega, who told her to use her sick time while her Wi-Fi was down.” (Id. ¶ 19.) In response, Plaintiff “contacted Human Resources and Employee Relations to complain about the failure to reimburse her business expenses and the fact that Ortega required her to use sick leave for her working time while her Wi-Fi was down.” (Id. ¶ 19.) 

In October 2020, Ortega placed Plaintiff on a Performance Improvement Plan (“PIP”) “because her Wi-Fi went down.” (Id. ¶ 19.) “Defendants took Plaintiff off the PIP on December 2, 2021 due to her positive performance.” (Id. ¶ 21.) “However, a week later, on or about December 9, 2021, Ortega told Plaintiff that she had to put her back on the PIP for failing to complete her work.” (Id. ¶ 22.) Then, “on or about January 22, 2021, Ortega gave Plaintiff a one-on-one via phone and told her that she was doing an excellent job and that she scored high on her Quality Assurance scores.” (Id. ¶ 23.) One week later, “[o]n January 29, 20211, Ortega contacted Plaintiff and told her that she was being terminated for performance.” (Id. ¶ 24.) Plaintiff alleges Defendant retaliated against her “because she raised complaints about unreimbursed business expenses and the initial failure to compensate her during a WiFi outage.” (Id. ¶ 25.) 

Labor Code section 1102.5 provides whistleblower protections to employees who disclose wrongdoing to authorities. It prohibits an employer from retaliating against an employee for sharing information the employee “has reasonable cause to believe ... discloses a violation of state or federal statute” or of “a local, state, or federal rule or regulation” with a government agency, with a person with authority over the employee, or with another employee who has authority to investigate or correct the violation. (§ 1102.5, subd. (b).) “This provision,” the Supreme Court of California has explained, “reflects the broad public policy interest in encouraging workplace whistle-blowers to report unlawful acts without fearing retaliation.” (Green v. Ralee Engineering Co. (1998) 19 Cal.4th 66, 77.) A claim for violation of Labor Code section 1102.5 requires “(1) the plaintiff establish a prima facie case of retaliation, (2) the defendant provide a legitimate, nonretaliatory explanation for its acts, and (3) the plaintiff show this explanation is merely a pretext for the retaliation. [Citations.] To establish the first element, the plaintiff must show (1) the plaintiff engaged in protected activity, (2) the defendant subjected the plaintiff to an adverse employment action, and (3) there is a causal link between the two.” (Ross v. Cnty. of Riverside (2019) 36 Cal. App. 5th 580, 591–92.)

Defendant argues Plaintiff did not engage in protected activity—that is, raise a violation of local, state, or federal law—because she merely inquired about Defendant’s reimbursement and timekeeping policies. Under Defendant’s version of events, Plaintiff informed Ortega of her wifi outage while working from home. (SSUMF 32.) “Based on [Ortega’s] understanding of Defendant’s policies at the time,” Ortega told Plaintiff that she believed Plaintiff would need to use vacation or sick time for the downtime. (Id.; Ortega Decl. ¶ 11.) However, Ortega also “provided [Plaintiff] with ER’s number and encouraged her to confirm the policy.” (Id.) ER later informed Ortega that downtime for wifi issues “should always be counted as hours worked.” (Id; SSUMF 34.) Plaintiff was fully compensated for the time her wifi was down as time worked. (SSUMF 33.) Additionally, during a team meeting in August or September of 2020, Plaintiff asked Ortega about a $25 phone reimbursement policy for an RSA Token app she had to download. (SSUMF 64.) This was the only time Plaintiff asked about this reimbursement. (SSUMF 67.) Defendant has met its initial burden on this issue, which switches the burden to Plaintiff to establish a triable issue of material fact.

In opposition, Plaintiff asserts she “raised legitimate concerns related to reimbursement for work-from home expenses and pay practices.” (Opp. 7: 17-18.) Plaintiff largely confirms the facts in her declaration. While working from home, she “incurred additional business expenses, including costs for Wi-Fi and phone services necessary to fulfill [her] job requirements.” (Ortiz Decl. ¶ 8.) “Despite these costs, MUFG Bank did not reimburse [her] for these necessary business expenses.” (Id. ¶ 8.) Plaintiff “raised concerns about the lack of reimbursement for Wi-Fi and phone expenses” with Ortega, who informed her “that the company was not obligated to reimburse these expenses.” (Id. ¶ 9.) Plaintiff “later learned this information was incorrect because other employees in other departments were being compensated for their phone expenses...” (Id.)

Additionally, when Ortega informed Plaintiff she would need to use sick time during the wifi outage, Plaintiff knew “this did not sound right” and “asked Ms. Ortega to show [her] where in our policy did it state that [she] was to use [her] sick or accrued vacation time to apply to this incident. Ms. Ortega then told [her] to call Human Resources and to take it up with them, followed by providing [her] with their phone number.” (Id. ¶ 10.) Plaintiff then reached out to HR and later Employee Relations, who “confirmed that [she] would get paid for [her] 8-hours and that they will be talking with [her] manager, Ms. Ortega, about the correct protocol.” (Id. ¶ 11.) 

Here, it is unclear how this action reflects a disclosure of information that Plaintiff “ha[d] reasonable cause to believe” was a violation of state or federal law under Section 1102.5(b). Plaintiff has not identified any such law in the Complaint or in her opposition to the motion for summary judgment. (See Mueller v. Cnty. of Los Angeles (2009) 176 Cal. App. 4th 809, 821–22 [“Section 1102.5 requires that to come within its provisions, the activity disclosed by an employee must violate a federal or state law, rule or regulation”].) Indeed, she also does not state in her declaration that she believed Defendants’ actions violated any law. At most, Plaintiff identifies internal company policies that she believed were not being applied correctly or consistently. (Ortiz Decl. ¶¶ 9, 10, 14.) However, “perceived violations of the department's own policies” are not actionable under the whistleblower statute. (Id. at 822; see also Patten v. Grant Joint Union High Sch. Dist. (2005) 134 Cal. App. 4th 1378, 1384–85 [“The disclosures involving the two teachers do not amount to whistleblowing as a matter of law because…the disclosures indisputably encompassed only the context of internal personnel matters involving a supervisor and her employee, rather than the disclosure of a legal violation”].)

Therefore, Plaintiff has not presented any evidence to create a triable issue that her conduct was a “protected activity,” and she has therefore failed to carry her burden on this issue. 

Accordingly, Defendant’s Motion for Summary Adjudication of the First Cause of Action is GRANTED.

B. Wrongful Termination in Violation of Public Policy (Second Cause of Action)

Defendant argues the Plaintiff’s “derivative” wrongful termination claim fails with the whistleblower retaliation claim. Plaintiff concedes these causes of action rise or fall together. 

“[W]hen an employer's discharge of an employee violates fundamental principles of public policy, the discharged employee may maintain a tort action and recover damages traditionally available in such actions.” (Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167, 170.) “To support a common law wrongful discharge claim, the public policy ‘must be: (1) delineated in either constitutional or statutory provisions; (2) “public” in the sense that it “inures to the benefit of the public” rather than serving merely the interests of the individual; (3) well established at the time of the discharge; and (4) substantial and fundamental.’ ” (Haney v. Aramark Uniform Services, Inc. (2004) 121 Cal.App.4th 623, 642.)

Here, as discussed in the preceding section, Plaintiff has not created a triable issue to establish that she reasonably believed the complained-of conduct violated any constitutional or statutory provisions. 

Accordingly, Defendant’s Motion for Summary Adjudication of the Second Cause of Action is GRANTED.

C. Third, Fourth, Fifth, and Sixth Causes of Action

Next, Defendant argues Plaintiff has already settled her Third (failure to indemnify), Fourth (Unfair Competition), Fifth (failure to provide employment records upon request), and Sixth (failure to provide personnel records upon request) causes of action. 

One of multiple class actions against Defendant is Cynthia Garcia-Espinoza v. MUFG Union Bank, N.A., Ventura County Superior Court Case No. 56-2017-00492522. (SSUMF 74; RJN, Exh. E.) In that matter, the parties reached a settlement agreement which was granted final approval and subsequently became effective on March 18, 2024. The released class claims in Cynthia Garcia-Espinoza included, among others, reimbursement for necessary business expenses pursuant to Labor Code section 2802, unfair competition pursuant to California Business and Professions Code sections 17200 et seq., and additional claims arising under California Labor code, including under Labor Code sections 226, and 1198.5, for all non-exempt employees in California from April 16, 2016 through September 20, 2022. (SSUMF 76.) 

Plaintiff was sent an opt out notice regarding the Cynthia Garcia-Espinoza settlement but did not opt out. Therefore, Defendant asserts Plaintiff was included as part of the settling class in that action and released all claims that were covered. (SSUMF 77.) 

In opposition, Plaintiff disputes that she was a member of the settling class. She states in her declaration: 

I acknowledged receipt of an initial notice of a potential settlement, but did not actively acknowledge or act upon it and did not formally opt into the settlement. Upon receiving the check, I retained it for my records but have taken no action to participate in the settlement. Furthermore, I never engaged in any conduct to indicate acceptance of the settlement and firmly assert that I am not a participating member of the class for purposes of this settlement.

(Ortiz Decl. ¶ 31.)

She also contends—without meaningful analysis—that “her current claims are distinct and based on post-settlement violations.”  

Here, Plaintiff admits she did not opt out of the settlement. The class notice she received stated: “Unless you exclude yourself, you will remain a Class Member, and you will be bound by the terms of the settlement. . .” (Castro Decl. ¶ 3, Ex. 33.) It then stated: “If you do not wish to participate in the settlement, you may exclude yourself (generally called “opting out”) by submitting a written opt-out request to the Settlement Administrator.” (Id.) Because it is undisputed that Plaintiff did not opt out of the settlement, she is bound by its terms. Plaintiff has not made any argument that this opt out provision is unlawful or that the settlement is not generally binding on members of the settling class.

Accordingly, Defendant’s Motion for Summary Adjudication of the Third, Fourth, Fifth, and Sixth Cause of Action is GRANTED. 

D. Punitive Damages

Finally, Defendant moves to summarily adjudicate Plaintiff’s request for punitive damages. A party may move for summary adjudication of “one or more claims for damages” if “there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code.” (CCP 437c(f)(1).)  “It is settled…that a claim for punitive damages is one of the substantive areas which is properly the subject of a motion for summary adjudication.” (Catalano v. Superior Ct. (2000) 82 Cal. App. 4th 91, 92; CCP § 437c(f)(1).)

Defendant argues that Plaintiff cannot recover punitive damages because there is no evidence of the requisite misconduct by a managing agent. Civil Code section 3294, subdivision (a) permits an award of punitive damages “for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice.” Civil Code section 3294, subdivision (b), provides that a corporate employer is not liable for punitive damages based upon the acts of its employees unless the acts were committed, authorized, or ratified by a corporate officer, director, or managing agent.  (Powerhouse Motorsports Grp., Inc. v. Yamaha Motor Corp., U.S.A. (2013) 221 Cal. App. 4th 867, 885.) The term “managing agent” includes “only those corporate employees who exercise substantial independent authority and judgment in their corporate decision making so that their decisions ultimately determine corporate policy.” (Id.) Generally, “corporate policy” refers to “formal policies that affect a substantial portion of the company and that are of the type likely to come to the attention of corporate leadership.” (CRST, Inc. v. Superior Ct. (2017) 11 Cal. App. 5th 1255, 1273.)

Here, Plaintiff’s request for punitive damages fails because Plaintiff has no surviving causes of action. Even if a claim was available, the request for punitive damages would still fail. 

Defendant presents evidence that Plaintiff’s termination decision involved Ortega, Appelt, and Lappin. (SSUMF 78.) None of these employees are officers, directors or managing agents of Defendant, as they did not have the ability to determine corporate policy. (SSUMF 79.) This meets Defendant’s initial burden.

In opposition, Plaintiff contends that Ortega was a managing agent because she “oversaw all of the customer service specialists for a number of years.” (Opp. 12: 6-7.) But on this bare contention, and without any evidence that Ortega had the ability to determine corporate policy, Plaintiff has not created a triable issue on punitive damages.

Accordingly, Defendant’s Motion for Summary Adjudication of Punitive Damages is GRANTED.

Defendant’s Motion for Summary Judgment is GRANTED in its entirety.

IT IS SO ORDERED.

Dated:   November 21, 2024 ___________________________________