Judge: Robert B. Broadbelt, Case: 22STCV08198, Date: 2024-11-18 Tentative Ruling

Case Number: 22STCV08198    Hearing Date: November 18, 2024    Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

MOVING PARTY:                 Plaintiff Rebecca Marshall    

RESPONDING PARTY:        Defendant College Hospital Inc.

Motion for New Trial

The court considered the moving, opposition, and reply papers filed in connection with this motion.

DISCUSSION

Plaintiff Rebecca Marshall (“Plaintiff”) filed her First Amended Complaint in this action on March 17, 2022, alleging seven causes of action against defendant College Hospital Inc. (“Defendant”) for (1) material breach of arbitration agreement; (2) discrimination on the basis of age, disability, and medical condition; (3) medical condition and disability harassment and hostile work environment; (4) failure to take all reasonable steps to prevent discrimination, harassment, and retaliation; (5) retaliation; (6) interference and retaliation; and (7) wrongful discharge in violation of public policy.

On August 27, 2024, the court issued an order granting Defendant’s motion for summary judgment on Plaintiff’s First Amended Complaint.  (Aug. 27, 2024 Order, p. 21:16-17.)  The court entered judgment in favor of Defendant and against Plaintiff pursuant to that order on October 18, 2024.  (Oct. 18, 2024 Judgment.)  Defendant served Plaintiff with notice of entry of the court’s judgment on October 18, 2024.  (Oct. 18, 2024 Notice of Entry of Judgment, p. 5 [proof of electronic service of Notice].)

Plaintiff now moves the court for an order setting aside the order granting Defendant’s motion for summary judgment and granting Plaintiff a new trial on the grounds that (1) there was an irregularity in the proceedings of the court, Defendant and its counsel, or any order of the court or abuse of discretion by which Plaintiff was prevented from having a fair trial, and (2) there was an error in law.  (Code Civ. Proc., § 657, subds. (1) [a new trial may be granted based on “[i]rregularity in the proceedings of the court, jury or adverse party, or any order of the court or abuse of discretion by which either party was prevented from having a fair trial”], (7) [a new trial may be granted based on an “[e]rror in law, occurring at the trial and excepted to by the party making the application”]; Doe v. United Air Lines, Inc. (2008) 160 Cal.App.4th 1500, 1504 [“An order granting summary judgment is properly challenged by a motion for a new trial”].)

First, as a threshold matter, the court notes that, in Plaintiff’s “Notice of Motion to Move for New Trial,” filed on November 1, 2024, Plaintiff asserted that the court’s jurisdiction to rule on Plaintiff’s motion expired as of November 11, 2024.  (Nov. 1, 2024 Notice of Mot. for New Trial, p. 2:25-27.)  The court finds that it has jurisdiction to rule on Plaintiff’s motion until November 25, 2024.

“[T]he power of the court to rule on a motion for a new trial shall expire 75 days after the mailing of notice of entry of judgment by the clerk of the court pursuant to Section 664.5 or 75 days after service on the moving party by any party of written notice of entry of judgment, whichever is earlier, or if that notice has not been given, 75 days after the filing of the first notice of intention to move for a new trial.  If the motion is not determined within the 75-day period, or within that period as extended, the effect shall be a denial of the motion without further order of the court.”  (Code Civ. Proc., § 660, subd. (c).)

The court acknowledges, as Plaintiff has asserted, that Defendant served on Plaintiff notice of the court’s order granting Defendant’s motion for summary judgment on August 27, 2024.  (Def. Aug. 27, 2024 Notice of Ruling, p. 6 [proof of electronic service of notice of ruling].)  However, to the extent that Plaintiff contends that Defendant’s notice of ruling began the 75-day period by which the court is required to rule on this motion, the court disagrees.  As set forth above, the power of a court to rule on a motion for a new trial shall expire 75 days after the earliest that one of the following three circumstances occurs: (1) the mailing of notice of entry of judgment by the clerk pursuant to Section 664.5, (2) service on the moving party by any party of written notice of entry of judgment, whichever is earlier, or, if notice has not been given, (3) the filing of the first notice of intention to move for a new trial.  (Code Civ. Proc., § 660, subd. (c).)  

The court finds, and Plaintiff does not appear to contest, that the clerk of the court did not mail notice of entry of judgment pursuant to Code of Civil Procedure section 664.5 after the court issued its August 27, 2024 order granting Defendant’s motion for summary judgment.  Further, the court finds that service on Plaintiff of notice of the court’s order granting Defendant’s motion for summary judgment does not constitute service “of written notice of entry of judgment” because the court, while granting summary judgment in favor of Defendant, did not enter judgment in its August 27, 2024 order.  (Code Civ. Proc., § 660, subd. (c); Aug. 27, 2024 Order, p. 21:16-17 [granting summary judgment], 21:20-21 [ordering Defendant to prepare proposed judgment]; Collins v. Sutter Memorial Hospital (2011) 196 Cal.App.4th 1, 11 [finding that “notice of entry of [the order granting summary judgment] was not the same as notice of entry of a judgment that triggers the [former] 60-day period to rule on a new trial motion under section 660”], 15 [“While an order granting summary judgment may be the ‘rendition’ of judgment, such that the losing party is aggrieved and may move for a new trial without running afoul of the prematurity trap, it is not a ‘judgment’ and does not trigger the [former] 60-day deadline”].)

Because neither the clerk of the court nor Defendant served Plaintiff with “notice of entry of judgment” on August 27, 2024, the 75-day time period commenced when Plaintiff filed her first notice of intention to move for a new trial on September 11, 2024.  (Code Civ. Proc., § 660, subd. (c) [“if that notice has not been given, [the power of the court to rule on a motion for new trial shall expire] 75 days after the filing of the first notice of intention to move for a new trial”]; Collins, supra, 196 Cal.App.4th at p. 14 [“When the notice of entry of judgment has been served after the notice of intent to move for a new trial, it is the notice of intent to move for a new trial that serves as the operable trigger for the [former] 60-day clock, not notice of the judgment”].)  Thus, the court finds that it has jurisdiction to rule on Plaintiff’s motion until 75 days after September 11, 2024, which the court has calculated to be November 25, 2024.

Second, based on the court’s review of all the papers filed in connection with Defendant’s motion for summary judgment or summary adjudication and Plaintiff’s motion for new trial, the court finds that Plaintiff has not shown that (1) there was an irregularity of the proceedings of the court by which Plaintiff was prevented from having a fair trial, or (2) there was an error in law occurring at the trial.  (Code Civ. Proc., § 657, subds. (1), (7).)

“An ‘irregularity in the proceedings’ is a catchall phrase referring to any act that (1) violates the right of a party to a fair trial and (2) which a party ‘cannot fully present by exceptions taken during the progress of the trial, and which must therefore appear by affidavits.’”  (Montoya v. Barragan (2013) 220 Cal.App.4th 1215, 1229-1230 [internal citation omitted].)  “Under [the error in law] ground, a trial court may grant a new trial if ‘its original ruling, as a matter of law, was erroneous.’”  (Collins, supra, 196 Cal.App.4th at pp. 17-18 [internal citation omitted].)

As to Plaintiff’s contention that Defendant failed to provide a legitimate, nondiscriminatory reason “for failing to provide [Plaintiff] with accommodations for her medical conditions[,]” the court (1) disagrees and finds that it did not err in determining that Defendant met its burden to produce evidence to show that Defendant had a nondiscriminatory reason for terminating Plaintiff, which is the adverse employment action that is alleged in Plaintiff’s First Amended Complaint (FAC ¶ 15); (2) notes that Plaintiff did not allege that Defendant failed to accommodate her in support of the second cause of action  or in support of any other cause of action; and (3) notes that, even if Plaintiff had attempted to allege that the adverse employment action on which she based the cause of action for discrimination was a failure to accommodate her or to engage in the interactive process, such an allegation would be insufficient to support the cause of action for discrimination because alleged failures to accommodate a disability and to engage in the interactive process are separate from discrimination.  (Mot., p. 7:20-22; Aug. 27, 2024 Order, pp. 5:1-6:25; Doe v. Department of Corrections & Rehabilitation (2019) 43 Cal.App.5th 721, 735-736 [“No court has ever held that a failure to reasonably accommodate an employee’s disability—which is a separate cause of action under FEHA (§ 12940, subd. (m))—can qualify as the adverse action underlying a discrimination or retaliation claim”].)  The court further finds that it did not err in finding that Plaintiff did not meet her burden to show that a triable issue of material fact exists as to whether Defendant’s proffered reason for terminating her was pretext for discrimination.

The court also finds that (1) the court did not err in granting summary adjudication as to the cause of action for harassment because, although “[h]arassment cases are rarely appropriate for disposition on summary judgment[,]” the court concluded that (i) Defendant met its burden to show that this cause of action had no merit, and (ii) Plaintiff did not meet her burden to show a triable issue of material fact exists as to the element of harassment; (2) the court did not err in granting summary adjudication as to Plaintiff’s causes of action for retaliation in violation of the Fair Employment and Housing Act and California Family Rights Act; and (3) the court did not err in granting summary adjudication as to the derivative causes of action for failure to prevent discrimination, harassment, and retaliation, and wrongful discharge in violation of public policy since the court has determined that it did not err in granting summary adjudication as to the underlying causes of action.  (Gov. Code, § 12923, subd. (e); Aug. 27, 2024 Order, pp. 15:11-13, 15:27-28, 16:20-17:4, 18:9-26, 19:20-20:10.)

The court notes that Plaintiff has also argued that the court erred in granting summary judgment because Defendant failed to provide Plaintiff reasonable accommodations and failed to engage in the interactive process with Plaintiff.  (Mot., pp. 15:5-16:19.)  However, Plaintiff did not allege, in her First Amended Complaint, that Defendant engaged in those unlawful employment practices.  (FAC ¶¶ 17-31 [alleging breach of arbitration agreement], 32-44 [alleging discrimination], 45-52 [alleging harassment], 53-61 [alleging failure to prevent discrimination, harassment, and retaliation], 62-70 [alleging retaliation], 71-82 [alleging retaliation], 83-89 [alleging wrongful discharge]; Alameda Health System v. Alameda County Employees’ Retirement Assn. (2024) 100 Cal.App.5th 1159, 1174 [“The pleadings establish ‘the outer measure of materiality in summary judgment proceedings’”].)  While the court notes (and noted in its order granting summary judgment) that, in support of the cause of action for failure to take steps to prevent discrimination, harassment, and retaliation, Plaintiff alleged that Defendant’s conduct was done with the intent to harm Plaintiff and to prevent her from “receiv[ing] a reasonable and good faith interactive process from her employers to determine an accommodation” (FAC ¶ 59), that allegation is conclusory, does not cite Government Code section 12940, subdivisions (m) and (n), and therefore does not fairly allege a failure to accommodate or to engage in the interactive process on the part of Defendant.  (Gov. Code, § 12940, subds. (m) [it is an unlawful employment practice to fail to make a reasonable accommodation], (n) [it is an unlawful employment practice to fail to engage in a timely, good faith, interactive process to determine effective reasonable accommodations].)

Thus, the court finds that the court did not make an error in law in granting Defendant’s motion for summary judgment.  (Code Civ. Proc., § 657, subd. (7).)  For the same reasons, the court finds that there was not an irregularity in the proceedings of the court by which Plaintiff was prevented from having a fair trial.  (Code Civ. Proc., § 657, subd. (1).)

The court therefore denies Plaintiff’s motion for a new trial.  

ORDER

            The court denies plaintiff Rebecca Marshall’s motion for a new trial.

            The court orders defendant College Hospital Inc. to give notice of this ruling.

IT IS SO ORDERED.

DATED:  November 18, 2024

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court