Judge Robert P. Dahlquist, Case 37-2022-00022665-CU-OE-NC 2023-11-03 Tentative Ruling

Judge: Robert P. Dahlquist, Case: 37-2022-00022665-CU-OE-NC, Date: 2023-11-03 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - November 02, 2023

11/03/2023 02:30:00 PM N-29 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Robert P Dahlquist

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Civil - Unlimited Other employment Summary Judgment / Summary Adjudication (Civil) 37-2022-00022665-CU-OE-NC DELGADO VS PAR ELECTRICAL CONTRACTORS INC [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion for Summary Judgment and/or Adjudication, 08/14/2023

Defendant's motion for summary judgment or summary adjudication (ROA # 30) is denied.

Defendant's request for judicial notice (ROA # 35) is granted.

Concerning defendant's evidentiary objections (ROA # 61), some of the objections are not properly formatted because they do not quote the material to which the objections apply. Nevertheless, the court will rule on the objections as follows: Objection #1: sustained Objection #2: overruled Objection #3: overruled Objection #4: overruled These evidentiary rulings are not material to the outcome of this motion. The outcome of the motion would be the same regardless of the rulings on the evidentiary objections.

On June 8, 2022, plaintiff Heriberto Delgado filed a complaint against the defendant asserting causes of action for retaliation in violation of Labor Code § 1102.5 and discrimination Labor Code § 230(e). ROA # 1. Plaintiff alleges that he was employed by the defendant when a co-worker, Jessie Tapia, physically assaulted him in an unprovoked attack. Plaintiff further alleges that the supervisor instructed plaintiff to write a statement about what occurred. Plaintiff alleges that he was fired later that day.

Defendant moves for summary judgment or summary adjudication. ROA # 30. Plaintiff opposes the motion. ROA # 48.

In analyzing motions for summary judgment, courts must apply a three-step analysis: (1) identify the issues framed by the pleadings to be addressed; (2) determine whether the moving party has shown facts justifying a judgment in movant's favor; and (3) determine whether the opposing party has demonstrated the existence of a triable, material issue of fact. Sun v. City of Oakland (2008) 166 Cal.App.4th 1177, 1182-83.

In ruling on a summary judgment motion, the Court must 'liberally construe' the opposing party's evidence and 'strictly scrutinize' the moving party's evidence, and 'resolve any evidentiary doubts or ambiguities' in favor of the opposing party. McDonald v. Antelope Valley Community College District (2008) 45 Cal.4th 88, 96 – 97. Similarly, 'any doubts as to the propriety of granting a summary Calendar No.: Event ID: TENTATIVE RULINGS

3010223 CASE NUMBER: CASE TITLE: DELGADO VS PAR ELECTRICAL CONTRACTORS INC [IMAGED] 37-2022-00022665-CU-OE-NC judgment motion should be resolved in favor of the party opposing the motion.' Reid v. Google, Inc.

(2010) 50 Cal.4th 512, 535.

The inclusion of a fact in the moving party's separate statement concedes that the fact is material. Nazir v. United Airlines, Inc. (2009) 178 Cal. App. 4th 243, 252.) As such, if a triable issue is raised as to any facts in the separate statement with respect to an issue, then the motion must be denied. Id.; see also Insalaco v. Hope Lutheran Church of West Contra Costa County (2020) 49 Cal. App. 5th 506, 521.

In this case, defendant's separate statement of undisputed facts ('SSUMF') contains twenty-eight facts.

(ROA # 34) Thirteen of those facts are purportedly disputed by the plaintiff. (ROA # 49) Some of the facts that are identified as 'disputed' by plaintiff are not properly disputed in that plaintiff has not cited to evidence establishing the existence of the dispute. But some of the facts are properly disputed by plaintiff, with citations to evidence.

In light of the disputed issues of fact identified in plaintiff's separate statement, the motion must be denied. The disputed issues include whether plaintiff's reporting of the assault was a contributing factor for his termination or whether the termination would have occurred for legitimate, independent reasons even if plaintiff had not reported it (SSUMF Nos. 6-8, 13, 35-38). The evidence that shows the existence of triable issues of fact include: plaintiff's declaration in opposition to the motion; the deposition testimony of plaintiff; deposition testimony of Ron Iverson, deposition testimony of Joel Gomez; and defendant's responses to plaintiff's form interrogatories.

In addition, as to the request for summary adjudication, the moving party's moving papers do not comply with CRC 3.1350(b) because the notice of motion identifies issues to be adjudicated that are different from the issues identified in the separate statement. The court denies the motion for summary adjudication on this additional, alternative basis.

Also, as to the separate statement's issue # 1(b) (pertaining to the alleged failure to exhaust administrative remedies) and issue # 2 (pertaining to the request for punitive damages), the facts set forth in the separate statement do not establish defendant's entitlement to a judgment on these issues.

For example, as to the alleged failure to exhaust administrative remedies, no facts on this issue are presented in the separate statement. Similarly, as to the assertion that plaintiff may not recover punitive damages, the separate statement does not contain facts showing that the employees involved with plaintiff's termination were not managing agents of PAR and/or that the asserted improper conduct was not ratified by an officer, director or managing agent.

The moving papers fail to carry the moving party's initial burden on these issues , and the burden does not shift to plaintiff to show the existence of a triable issue of fact. If the burden does shift, plaintiff has met his burden, as mentioned above, by disputing various facts in the moving party's separate statement.

This is the tentative ruling for an appearance hearing (in person or remote) at 1:30 p.m. on Friday, November 3, 2023. If no party appears at the hearing, this tentative ruling will become the order of the court as of November 3, 2023. If the parties are satisfied with the court's tentative ruling or do not otherwise wish to argue the motion, they are encouraged to give notice to the court and each other of their intention not to appear, though this notice is not required.

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