Judge Robert C. Longstreth, Case 37-2020-00038780-CU-WT-CTL 2023-12-01 Tentative Ruling

Judge: Robert C. Longstreth, Case: 37-2020-00038780-CU-WT-CTL, Date: 2023-12-01 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - November 30, 2023

12/01/2023 08:30:00 AM C-65 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Robert Longstreth

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Civil - Unlimited Wrongful Termination Summary Judgment / Summary Adjudication (Civil) 37-2020-00038780-CU-WT-CTL WOOD VS REGENTS OF THE UNIVERSITY OF CALIFORNIA [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion for Summary Judgment and/or Adjudication, 12/23/2022

Defendant The Regents of the University of California's Motion for Summary Judgment is GRANTED.

(ROA 63.) As a preliminary matter, the court notes Plaintiff filed multiple memoranda in opposition to this motion.

Only one opposition memorandum is authorized, of no more than 20 pages in length. (Cal. R. Court, rule 3.1113(d) and rule 3.1350(e).) Although Plaintiff has been cautioned in the past about excessive briefing (ROA 137), the court has exercised its discretion to consider the multiple memoranda.

In addition, Plaintiff late-filed a declaration and a notice of lodgment of exhibits on November 26, 2023, less than five days before hearing. The lodgment included two exhibits labeled 159 and 160. All opposition papers were not less than fourteen days prior to the hearing. (Code Civ. Proc. § 437c(b)(2).) The court has exercised its discretion to allow the late-filed declaration.

However, as to Exhibits 159 and 160, these are not cited anywhere in Plaintiff's separate statement.

Facts and evidence not set forth in the separate statement cannot be considered. (United Community Church v. Garcin (1991) 231 Cal.App.3d 327, 337, 'if it is not set forth in the separate statement, it does not exist' (emphasis in original).) Nearly all of Plaintiff's other referenced exhibits (labeled in his November 27, 2023 notice of lodgment as Exhibits 1-158 and 199) were not lodged or otherwise filed with the court prior to this motion. Plaintiff appears to be referring to prior lodgments he made for other previous motions, as he has cited to prior notices of lodgment by ROA number. The court does not retain lodgments after hearing. (Cal. R. Court, rule 3.1302(b).) Plaintiff was aware of this, as prior lodgments have been returned to him. (See, e.g., ROA 157.) Further, even assuming the court had received the exhibits, Plaintiff's opposing separate statement of facts is deficient to the extent that it fails to adequately cite specific evidence within his exhibits. Instead, Plaintiff makes wholesale citations to the exhibits. 'It is not the court's duty to rummage through the papers to construct or resuscitate' Plaintiff's case. (Collins v. Hertz Corp. (2006) 144 Cal.App.4th 64, 75.) '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.' (Cal. R. Court, rule 3.1350(f)(2).) Likewise, additional material facts 'must include reference to the exhibit, title, page, and line numbers.' (Id. at subd. (f)(3).) Plaintiff has not complied with these rules, leaving Defendant and the court to guess how the cited exhibits (even if they had been lodged or filed) might controvert Defendant's evidence. As with his excessive briefing, Plaintiff has been cautioned previously about excessive and improperly lodged Calendar No.: Event ID: TENTATIVE RULINGS

3041998 10 CASE NUMBER: CASE TITLE: WOOD VS REGENTS OF THE UNIVERSITY OF CALIFORNIA 37-2020-00038780-CU-WT-CTL exhibits (ROA 137).

Plaintiff seeks judicial notice of an administrative ruling pertaining to Medi-Cal benefits for himself and his daughter. This request for judicial notice is denied on the grounds it is not relevant to the matters presented in the motion. In addition, Plaintiff seeks judicial notice of a July 19, 2023 ruling from the workers compensation appeals board. The court grants judicial notice of this ruling. However, Defendant correctly asserts that this court may not take judicial notice that any findings made in the ruling are true. 'Judicial notice of findings of fact does not mean those findings are true, but simply that they were made. [Citations.] Thus, while a court can take judicial notice that a court made a particular ruling, it cannot take judicial notice of the truth of a factual finding made in another action.' (People v. Moore (1997) 59 Cal.App.4th 168, 178.) In his opposition, Plaintiff requests a continuance of this motion to obtain further discovery from Defendant. This request is denied. As a preliminary matter, the court notes it has already continued this motion once, by eight months, to allow time for Plaintiff to prepare and file his opposition. (ROA 85.) In the interim, the court denied Plaintiff's motion to compel Defendant's further responses to requests for production. (ROA 144.) Further, Plaintiff has not offered a declaration with his opposition papers that specifies what additional facts he would need or what discovery he would conduct to support his opposition. (Code Civ. Proc. § 437c(h).) Accordingly, the court does not find sufficient good cause to order a second continuance.

First Cause of Action – FEHA Retaliation '[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.' (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.) Plaintiff bears the initial burden of demonstrating a prima facie case of retaliation. (Ibid.) 'Once an employee establishes a prima facie case, the employer is required to offer a legitimate, nonretaliatory reason for the adverse employment action.' (Ibid.) 'If the employer produces a legitimate reason for the adverse employment action, the presumption of retaliation 'drops out of the picture,' and the burden shifts back to the employee to prove intentional retaliation.' (Ibid., citation omitted.) Here, even assuming that all of Plaintiff's complaints submitted to Defendant during his employment constitute protected activity, and that he has otherwise sufficiently established a prima facie case of retaliation under the Fair Employment and Housing Act ('FEHA'), Defendant has offered evidence of a legitimate reason for Plaintiff's termination: he did not provide medical documentation to support an unauthorized leave of absence of over 18 months, or the restrictions that any medical condition might place on his ability to work upon his return, despite a clear requirement, which he acknowledged in writing, that he provide this on the work day he returned and despite many efforts by Defendant to work with Plaintiff to obtain this. Plaintiff did not provide evidence that the reason for his termination was pretextual in some way, nor did he meet his threshold burden of providing sufficient evidence to support a causal link between his complaints and the termination of his employment.

As to Plaintiff's first cause of action, the motion is granted.

Second Cause of Action – FEHA Disability Discrimination Plaintiff asserts he was discriminated against on the basis of his physical and mental disabilities. (FAC ¶¶ 19-20.) It is unlawful for an employer to discriminate against an employee on the basis of a physical or mental disability. (Govt. Code § 12940(a).) To establish a prima facie case of discrimination under the FEHA, Plaintiff is required to demonstrate he is a member of a protected class with some competent evidence. (Govt. Code § 12926(j)(1); and see Wallace v. County of Stanislaus (2016) 245 Cal.App.4th 109, 123-124, 130.) Calendar No.: Event ID: TENTATIVE RULINGS

3041998 10 CASE NUMBER: CASE TITLE: WOOD VS REGENTS OF THE UNIVERSITY OF CALIFORNIA 37-2020-00038780-CU-WT-CTL Plaintiff has not met his initial burden because he has not submitted admissible evidence of a physical or mental disability. Moreover, even assuming Plaintiff had established a prima facie case of disability discrimination under the FEHA, as with the first cause of action, Defendant has offered sufficient evidence of a legitimate reason for Plaintiff's termination, and Plaintiff did not provide sufficient evidence that the reason for his termination was pretextual in some way.

As to Plaintiff's second cause of action, the motion is granted.

Third Cause of Action – Failure to Prevent Harassment/Discrimination Under the FEHA Plaintiff alleges Defendant violated the FEHA by failing to stop harassment and discrimination against him.

Under the FEHA, it is unlawful for an employer to 'fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring.' (Govt. Code § 12940(k).) A failure to prevent claim is a derivative claim; where there is no harassment or discrimination, there can be no failure to prevent it. (Carter v. California Dept. of Veterans Affairs (2006) 38 Cal.4th 914, 925, fn.

4, noting the failure to prevent harassment and/or discrimination is a separate claim, but that 'courts have required a finding of actual discrimination or harassment under FEHA before a plaintiff may prevail under section 12940, subdivision (k).') Here, in light of the lack of evidence of harassment or discrimination against Plaintiff, the court concludes Plaintiff's claim for failure to prevent harassment and/or discrimination also fails.

As to Plaintiff's third cause of action, the motion is granted.

Fourth Cause of Action – FEHA Harassment Plaintiff alleges he was harassed on the basis of a disability and 'in retaliation for making protected disclosures.' (FAC ¶ 29.) Plaintiff was issued a right-to-sue letter from the Department of Fair Employment and Housing pertaining to his harassment claim on March 20, 2018. (Def. Sep. Stmt. at ¶ 160.) The letter notified Plaintiff he must bring any civil action within one year of the date of the letter. (Ibid.; see also Govt. Code § 12965.) This action was not filed until October 26, 2020. Thus, Plaintiff's harassment claim is time-barred.

In opposition, Plaintiff asserts the March 20, 2018 letter only concerned his discrimination claim. (Pltf.

Resp. Sep. Stmt. at ¶ 160.) However, after review of the letter, that assertion is not accurate. The letter encompassed a harassment claim. (Def. NOL at Exh. 45.) As to Plaintiff's fourth cause of action, the motion is granted.

Fifth Cause of Action – WPA Retaliation Plaintiff alleges Defendant violated the Whistleblower Protection Act ('WPA').

University of California employees are protected under the WPA from retaliation for making a protected disclosure. (Govt. Code § 8547.10.) Under the WPA, Plaintiff bears the initial burden to establish 'by a preponderance of the evidence that an activity protected by this article was a contributing factor in the alleged retaliation' against him. (Govt. Code § 8547.10(e).) Once Plaintiff meets this burden, the burden of proof shifts to 'the supervisor, manager, or appointing power to demonstrate by clear and convincing evidence that the alleged action would have occurred for legitimate, independent reasons even if the employee had not engaged in protected disclosures or refused an illegal order.' (Ibid.) Calendar No.: Event ID: TENTATIVE RULINGS

3041998 10 CASE NUMBER: CASE TITLE: WOOD VS REGENTS OF THE UNIVERSITY OF CALIFORNIA 37-2020-00038780-CU-WT-CTL As with Plaintiff's FEHA retaliation claim, the court finds Plaintiff has not offered sufficient evidence that any protected activity was a contributing factor in the termination of his employment. In addition, even assuming Plaintiff had met his initial burden, Defendant has offered sufficient evidence of a legitimate, independent reason for terminating Plaintiff's employment.

As to Plaintiff's fifth cause of action, the motion is granted.

Evidentiary Objections Defendant's evidentiary objections nos. 1 and 2 are both sustained on the grounds stated therein. The objection to Plaintiff's Request for Judicial Notice is sustained in part and denied in part, as stated above.

Plaintiff submitted a document entitled 'Plaintiff's Evidentiary Objections to Defendants' Separate Statement of Undisputed Facts in Support of Plaintiff's Opposition to Defendants' Motion for Summary Judgment or, in the Alternative, Summary Adjudication.' (ROA 183 at pp. 27-86.) Although labeled as evidentiary objections, the court believes this document to be, and has construed it as, Plaintiff's separate statement supporting his opposition to Defendant's motion. The Court notes that even so construed, the document is unhelpful because it fails to adequately cite evidence and consists largely of unsupported assertions and improper argument. To the extent Plaintiff has attempted to state evidentiary objections in this document, those objections are overruled.

Plaintiff also submitted a document entitled 'Plaintiff's Evidentiary Objections to the Declaration of Melissa Williams.' (ROA 183 at pp. 87-97.) Similarly, Plaintiff submitted a document entitled 'Plaintiff's Evidentiary Objections to the Declaration of Brian DeMuelle.' (ROA 183 at pp. 158-172.) Although labeled as evidentiary objections, the documents do not follow the required format for evidentiary objections (see Cal. R. Court, rule 3.1354(b)) and consist primarily of further argument. The court has considered these arguments in making its ruling on the motion. To the extent Plaintiff has attempted to state evidentiary objections in this document, those objections are overruled.

Proposed Judgment Summary judgment is granted in favor of Defendant Regents of the University of California on Plaintiff's First Amended Complaint. Defendant is to submit a proposed Judgment within five (5) days.

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