Judge Robert S. Draper, Case 20STCV14594 2022-09-22 Tentative Ruling

Defendants’ Motion for Summary Adjudication of the First, Second, Third, Fourth, and Seventh Causes of Action, as well as the issue of Punitive Damages, is DENIED.

Defendants’ Motion for Summary Adjudication of the Fifth, Sixth, and Eighth Causes of Action is GRANTED.

Defendants’ Motion for Summary Adjudication of the Ninth Cause of Action is DENIED as to Starbucks and GRANTED as to Michno.

This is an action for employment discrimination and wrongful termination. The Complaint alleges as follows.

Plaintiff Jayne Montarbo (“Plaintiff”) was employed by Defendant Starbucks Corporation (“Starbucks”) for over 14 years. (Compl. ¶ 10.) She was the District Manager responsible for over 13 stores. (Ibid.) Throughout her tenure at Starbucks, Plaintiff received excellent reviews for her supervision and management skills. (Compl. ¶ 12.)

In 2017, Defendant Pam Michno (“Michno” and together with Starbucks, “Defendants”) took over as Regional Manager. (Compl. ¶ 14.) Michno had prior issues at Starbucks when she, as a District Manager, had mistreated an employee while the employee was on stress leave, then terminated that employee when he complained. (Compl. ¶ 15.) Plaintiff alleges that Michno had a pattern of attempting to drive employees she viewed as “weak” from employment with Starbucks. (Compl. ¶ 16.)

Michno went after Plaintiff after Plaintiff requested time off to care for her ailing father, and due to her stress. (Compl. ¶ 16.) Michno wrote up Plaintiff for minor infractions or things that were out of Plaintiff’s control in an attempt to force Plaintiff to quit. (Compl. ¶ 17.)

On January 27, 2019, Plaintiff filed a complaint with Starbucks Human Resources regarding Michno. (Compl. ¶ 19.) Additionally, she requested a transfer to Michigan to care for her ailing father. (Ibid.) Shortly thereafter, Michno issued a Final Written Warning (“FWW”) to Plaintiff based on stale or false allegations. (Compl. ¶ 20.) On March 14, 2019, Defendants told Plaintiff they would terminate her unless she accepted a separation agreement; Plaintiff refused. (Compl. ¶ 24.) Defendants terminated Plaintiff on April 17, 2019. (Ibid.) Plaintiff alleges her termination was due to her disability, her perceived disability, her serious medical condition, her age, and her request for accommodation. (Compl. ¶ 26.)

On April 15, 2020, Plaintiff filed the Complaint asserting nine causes of action:

1. Disability Discrimination in Violation of Government Code section 12940 et seq.;

2. Perceived Disability Discrimination in Violation of Government Code Section 12940 et seq.;

On July 13, 2022, Plaintiff filed an Ex Parte Application to Strike Defendants Separate Statement of Undisputed Facts.

On July 14, 2022, Department 74 of this Court, the Hon. Michelle Williams Court presiding, granted Plaintiff’s Ex Parte Application to Strike Defendants’ Separate Statement of Undisputed Facts and ordered Defendants to refile an amended Separate Statement in compliance with Rule 3.1350.

On August 5, 2022, Plaintiff filed an Ex Parte Application to Strike Defendants’ illegal Separate Statement and Illegal Objections.

On August 8, 2022, this Court granted Defendants’ Ex Parte Application and ordered Defendants to file an Amended Separate Statement by end of week.

On August 12, 2022, Defendants submitted an Amended Reply to Plaintiff’s Opposition to Defendants’ Separate Statement.

On September 9, 2022, Plaintiff filed an Opposition to Defendants’ Separate Statement in Support of Defendants’ Motion for Summary Judgment

On September 15, 2022, Defendants filed a Response to Plaintiff’s Objection and Request to Strike Defendants’ Amended Reply to Plaintiff’s Opposition to Separate Statement in Support of Defendants’ Motion for Summary Judgment or in the Alternative, Summary Adjudication.

As an initial matter, the Court must address the prolonged and frustrating motion practice the parties have engaged in leading up to the instant hearing. The record is littered with so many Separate Statements, Amended Separate Statements, and Ex Parte Applications regarding Separate Statements that it is difficult to determine what the operative documents are. Together, the two parties have filed 41 documents and required two ex parte hearings regarding the instant Motion since the initial Motion was filed in May.

The Court admonishes both Plaintiff’s Counsel and Defendants’ Counsel for engaging in gamesmanship that serves to obfuscate, rather than elucidate, the central issues in this matter.

As for the most recent dispute, Plaintiff argues that the Court should not consider Defendants’ Amended Reply to Plaintiff’s Opposition to Separate Statement. Defendants argue that this Court has considered Reply Separate Statements in ruling on summary judgment before.

The Court will consider only the matters in Defendants’ Amended Reply to Plaintiff’s Opposition to Separate Statement that are directly responsive to Plaintiff’s Separate Statement, and will not consider any new issues, facts, or arguments raised on Reply.

The court may take judicial notice of “official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States,” “[r]ecords of (1) any court of this state or (2) any court of record of the United States or of any state of the United States,” and “[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (Evid. Code § 452, subds. (c), (d), and (h).)

Evidence Code Section 452 provides that judicial notice may be taken for facts and propositions that are “not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (Cal. Evid. Code § 452(h).) Further, “a court may take judicial notice of [recorded documents and] the fact of a document's recordation, the date the document was recorded and executed, the parties to the transaction reflected in a recorded document, and the document's legally operative language, assuming there is no genuine dispute regarding the document's authenticity. From this, the court may deduce and rely upon the legal effect of the recorded document, when that effect is clear from its face.” (Scott v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 743, 745-755.)

Taking judicial notice of a document is not the same as accepting the truth of its contents or accepting a particular interpretation of its meaning. (Fremont Indem. Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 113-14 (citations and internal quotations omitted).) In addition, judges “consider matters shown in exhibits attached to the complaint and incorporated by reference.” (Performance Plastering v. Richmond American Homes of California, Inc. (2007) 153 Cal.App.4th 659, 665.) However, “[w]hen judicial notice is taken of a document . . . the truthfulness and proper interpretation of the document are disputable.” (Aquila, Inc. v. Sup. Ct. (2007) 148 Cal.App.4th 556, 569 (quoting StorMedia Inc. v. Sup. Ct. (1999) 20 Cal.4th 449, 457 n. 9).)

1. November 19, 2019 Minute Order from Cruz Casas v. County of Los Angeles, BC698745 (L.A. Super. Ct.)

First, Defendants argue that Zepeda’s declaration should be stricken in its entirety, as it is irrelevant to the instant motion. However, Zepeda’s testimony is relevant to Plaintiff’s Negligent Hiring / Retention Claim.

Defendants move for summary judgment of the entire action, or in the alternative, summary adjudication of each cause of action.

A party may move for summary judgment “if it is contended that the action has no merit or that there is no defense to the action or proceeding.” (Code Civ. Proc. § 437c, subd. (a).) “[I]f all the evidence submitted, and all inferences reasonably deducible from the evidence and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law,” the moving party will be entitled to summary judgment. (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)

The moving party bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact, and if he does so, the burden shifts to the opposing party to make a prima facie showing of the existence of a triable issue of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850; accord Code Civ. Proc. § 437c, subd. (p)(2).) To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

Neither a moving nor responding party may rely on the mere allegations or denials of its pleadings. A moving party must submit specific admissible evidence showing that the responding party cannot establish at least one element of his, her or its cause of action or defense. The responding party, to defeat the motion, must submit specific admissible evidence showing that a triable issue of material fact does exist as to that element of the cause of action or defense. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

“The “Golden Rule” on a motion for summary judgment or summary adjudication is that “if [a fact] is not set forth in the separate statement, it does not exist.” (Zimmerman, Rosenfeld, Gersh & Leeds LLP v. Larson (2005) 131 Cal.App.4th 1466, 1477, citing United Community Church v. Garcin (1991) 231 Cal.App.3d 327, 337.)

First, Defendants assert that they are entitled to summary adjudication on Plaintiff’s First, Second, and Sixth Causes of Action for Disability and Age Discrimination under FEHA fail.

In regard to FEHA claims, at summary judgment, California follows the burden shifting analysis of McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 to determine whether there are triable issues of fact for resolution by a jury. (Flait v. North American Watch Corp. (1992) 3 Cal.App.4th 467, 476.) First, the employer must carry the burden of showing the employee’s action has no merit. (Code Civ. Proc., § 437c, subd. (p)(2).) It may do so with evidence that either: (1) indicates “that one or more of plaintiff’s prima facie elements is lacking,” or (2) shows some legitimate, nondiscriminatory reason for the action taken against the employee. (Caldwell v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 203.)

If defendant meets its burden, the burden then shifts to the plaintiff to produce substantial evidence that the employer’s showing was untrue or pretextual by raising at least an inference of discrimination or retaliation. (Hersant v. California Department of Social Services (1997) 57 Cal.App.4th 997, 1004-1005.) “In short, by applying McDonnel Douglas’s shifting burdens of production in the context of a motion for summary judgment, ‘the judge [will] determine whether the litigants have created an issue of fact to be decided by the jury.’ [Citation.]” (Caldwell, supra, 41 Cal.App.4th at p. 203, alterations in original.)

1. First and Second Causes of Action – Disability Discrimination and Perceived Disability Discrimination

FEHA prohibits employers from discriminating against employees on the basis of a disability. (Gov. Code, § 12940, subd. (a).) In order to establish a prima facie case of FEHA disability discrimination, Plaintiff must prove: (1) she suffered from a disability; (2) with or without reasonable accommodation, she could perform the essential functions of the employment position she held or desired; and (3) that she was subjected to an adverse employment action because of her disability. (Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 254.)

Here, Defendants argue that Montarbo was not disabled, that Lonzano and Michno did not perceive her as disabled, and that she was not subject to an adverse employment action because of her alleged disability.

A physical or medical disability constitutes a disability under FEHA when that physical or mental disability requires “a limitation upon a major life activity.” (Gov. Code. § 129261.1(c).) The limitation need not be a substantial one as required under the Federal Americans with Disabilities act of 1990. (Id.)

Here, Defendants argue that the only disability Plaintiff alleges is stress due to Michno’s supervision. (UMF 1.) Defendants note that “an employee’s inability to work under a particular supervisor because of anxiety and stress related to the supervisor’s standard oversight of the employee’s job performance does not constitute a mental disability under FEHA.” (Higgins-Williams v. Sutter Med. Found. (2015) 237 Cal.App.4^th 78, 84.) Additionally, Defendants note that this Court has granted summary judgment where plaintiff’s condition does not “go[] beyond his inability to work under a particular supervisor.” (RFJN Ex. BB at p. 6.)

In Opposition, Plaintiff notes that she was put on a doctor’s ordered stress leave in relation, not just to her relationship with Michno, but also to her father’s deteriorating health. (PSSUMF 48.) Accordingly, Plaintiff has provided a triable issue of material fact as to whether she had a disability under FEHA related to something other than her relationship with Michno. And, as this information was shared with Michno, Plaintiff has provided evidence that Michno perceived Plaintiff as disabled.

Next, Defendants argue that Plaintiff cannot show that her termination was due to discrimination based on her disability rather than her inadequate work performance.

Defendants contend that Lozano and Michno, the two Starbucks agents responsible for Plaintiff’s termination, had no knowledge of her purported disability. Defendants note that in sworn depositions, both Lozano and Michno state that they neither knew Plaintiff to be, nor perceived Plaintiff as, disabled. (UMF 33-34, 47-48.) Additionally, Defendants note that Plaintiff was given her Final Written Warning before she sent Michno the email detailing her stress condition, indicating that her termination was not related to her disability. (UMF 4-5.)

In response, Plaintiff argues that she was rated as an exemplary employee in her 14-year employment with Starbucks prior to Michno’s arrival. For instance, Plaintiff introduces job performance showing high performance between the years 2007 and 2014. (PSSUMF 1.) Additionally, Plaintiff provides an email from Lozano telling Plaintiff he was inspired by her passion and ownership and thanking her for her support and leadership. (PSSUMF 10.) Plaintiff argues that this evidence, combined with the proximity between Plaintiff request for accommodation for her stress and her termination, creates an inference that Defendants’ reason for terminating Plaintiff was pretextual.

The Court finds that there is a triable issue of material fact as to whether her termination was based on her disability.

Accordingly, Defendants’ Motion for Summary Adjudication of the First Cause of Action for Disability Discrimination and the Second Cause of Action for Perceived Disability Discrimination is DENIED.

Next, Defendants argue that Plaintiffs Sixth Cause of Action for Age Discrimination under FEHA fails.

A prima facie case of age discrimination is established under the Fair Employment and Housing Act (“FEHA”) when the plaintiff shows that (1) the employee was 40 years of age or older; (2) an adverse employment action was taken against the employee; (3) at the time of the adverse employment action the employee was performing the job satisfactorily; and (4) the employee was replaced by a significantly younger worker or the discharge occurred in circumstances that give rise to an inference of age discrimination. (Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1003; see also Nidds v. Schindler Elevator Corp. (1996) 111 F.3d 912. 917 (the failure to prove replacement by a younger employee is not necessarily fatal and the plaintiff can show by circumstantial, statistical, or direct evidence that the discharge gives rise to an inference of age discrimination under the circumstances, such as by showing the employer had a continuing need for the employee’s skills and that the various duties of the employee were still being performed or by showing others not in the protected class were treated more favorably).)

Once the employee makes this showing, the burden shifts to the employer to show the adverse action was based on considerations other than age discrimination and when the employer offers evidence justifying the action on a basis other than age, the burden shifts back to the employee to prove the true reason for the action was age discrimination. (Hersant, 57 Cal.App.4th at 1003.) The discharged employee must produce “substantial responsive evidence that the employer’s showing was untrue or pretextual.” (Id. at 1004.) It is not enough to show that the reason for the adverse employment action was unfair or mistaken, but there must be a showing discriminatory animus motivated the employer and that a factfinder could find the offered reasons for the adverse employment action as “unworthy of credence” and thus infer the employer did not act for the asserted non-discriminatory reason. (Id. at 1005.)

Here, Defendants argue that Plaintiff cannot show that the person who replaced her was significantly younger than Plaintiff, as they were the exact same age. (UMF 52.) Additionally, Defendants contend that neither Lozano nor Michno knew of Plaintiff’s age. (UMF 53-54.) Finally, Defendants claim that the only evidence Plaintiff has alleged shows discrimination based on her age is that Michno informed Plaintiff that Plaintiff “lacked fundamental capability and bandwith” for her position. Defendants argue this is too indirect to show discrimination based on age.

In Opposition, Plaintiff contends that Michno testified that Trevor Rush, a younger employee, took over Plaintiff’s duties. (RUMF 52.) However, to corroborate this, Plaintiff cites to a portion of Michno’s testimony that is not included in the exhibit.

Accordingly, as Defendants have introduced evidence that Plaintiff was replaced by someone her own age, and Defendants have not rebutted this; and as the only evidence demonstrating age-based discrimination is a statement that can be interpreted as being completely irrelevant to Plaintiff’s age, Defendants’ Motion for Summary Adjudication on the Sixth Cause of Action for Age Based Discrimination under FEHA is GRANTED.

Next, Defendants argue that Plaintiff’s Third Cause of Action for Failure to Make Reasonable Accommodations and Fourth Cause of Action for Failure to Engage in the Interactive Process fail.

“The essential elements of a failure to accommodate claim are: 1) the plaintiff has a disability covered by the FEHA; 2) the plaintiff is a qualified individual (i.e., he or she can perform the essential functions of the position); and 3) the employer failed to reasonably accommodate the plaintiff’s disability. (Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 256.)

“[T]he employer cannot prevail on summary judgment on a claim of failure to reasonably accommodate unless it establishes through undisputed facts that ‘1) reasonable accommodation was offered and refused, 2) there simply was no vacant position within the employer’s organization for which the disabled employee was qualified and which disabled employee was capable of performing with or without accommodation, or (3) the employer did everything in its power to find a reasonable accommodation, but the informal interactive process broke down because the employee failed to engage in discussions in good faith.’ [Citation.]” (King v. United Parcel Service, Inc. (2007) 152 Cll.App.4th 426, 442.)

As addressed above, Plaintiff has successfully shown that she has a disability under FEHA, and neither party disputes whether the disability prevented her from performing the essential functions of her position. Instead, Defendants argue that the only request for reasonable accommodations that Plaintiff made was her request for a four-day medical leave based on her stress. (UMF 6, 43-46.) As Defendants granted this request without dispute, Defendants argue that Plaintiff cannot show any failure to reasonably accommodate her disability.

In Opposition, Plaintiff notes that she requested not only medical leave, but for a transfer to Michigan so that she could take care of her ill father. (PSSUMF 45.) Plaintiff notes that instead of accommodating this request, Defendants terminated Plaintiff shortly after she made the request.

On Reply, Defendants argue that a Reasonable Accommodation can be requested for the employee’s well-being only, not for the health of another, such as Plaintiff’s father. (Reply at p. 11.) Additionally, Defendants argue that a request for a transfer is not reasonable. (Ibid.)

However, as Plaintiff indicated that her stress was related to her father’s poor health, a reasonable trier of fact could determine that her request was, indeed, related to her disability. And, as Defendants present no authority demonstrating that a request for transfer is facially unreasonable, the reasonableness of Plaintiff’s request is a question best left to a jury.

Accordingly, Defendants’ Motion for Summary Adjudication of the Third Cause of Action for Failure to Make Reasonable Accommodations is DENIED.

Government Code section 12940, subdivision (n) requires employers to engage in a good faith interactive process to determine effective reasonable accommodations, if any, “in response to a request for reasonable accommodation by an employee . . . with a known physical or mental disability . . . .” (Raine v. City of Burbank (2006) 135 Cal.App.4th 1215, 1222.) Generally, “[t]he employee bears the burden of giving the employer notice of the disability. [Citation.]” (Ibid.)

Here again, Defendants argue that the only reasonable accommodation Plaintiff requested was for leave, which she was granted. However, as addressed above, Plaintiff’s request for transfer could also constitute a request for reasonable accommodation. As Plaintiff was not granted this request, and as she was terminated shortly after making it, Defendants’ Motion for Summary Adjudication of the Fourth Cause of Action for Failure to Engage in the Interactive Process is DENIED.

Next, Defendants argue that Plaintiff’s Fifth Cause of Action for Violation of California Family Rights Act (CFRA) and Family Medical Leave Act (FMLA) fails.[1]

“ ‘Violations of . . . CFRA generally fall into two types of claims: (1) “interference” claims in which an employee alleges that an employer denied or interfered with her substantive rights to protected medical leave, and (2) “retaliation” claims in which an employee alleges that she suffered an adverse employment action for exercising her right to CFRA leave.’ [Citation.] The statutory authority for an ‘interference’ claim arises from section 12945.2, subdivision (t), which makes it unlawful for an employer ‘to interfere with, restrain, or deny the exercise of, or the attempt to exercise, any right’ provided by CFRA. The statutory authority for a ‘retaliation’ claim arises from section 12945.2, subdivision (l)(1), which makes it unlawful to retaliate against any individual because of his or her exercise of the right to family care or medical leave as provided by CFRA.” (Moore v. Regents of University of California (2016) 248 Cal.App.4th 216, 233.) “A CFRA interference claim ‘ “consists of the following elements: (1) the employee's entitlement to CFRA leave rights; and (2) the employer's interference with or denial of those rights.” ’ ” (Soria v. Univision Radio Los Angeles, Inc. (2016) 5 Cal.App.5th 570, 601.)

Here, Defendants argue that Plaintiff was not entitled to CFRA leave rights as she asked only for a transfer to be with her father, not for unpaid leave to care for her father as specified in CFRA.

Defendants’ arguments have merit CFRA specifically prohibits a qualifying employer from refusing “to grant a request by any [qualifying] employee to take up to a total of 12 workweeks in any 12-month period for family care and medical leave.” (Govt. Code § 12945.2(a).)

Here, the unambiguous evidence shows that Plaintiff requested a transfer to Michigan to be with her father, which is wholly distinct from requesting unpaid leave to care for her father. While Plaintiff argues that no magic words are necessary to invoke CFRA, requesting a transfer and requesting a leave of absence are simply too dissimilar to invoke the CFRA’s protections. Additionally, the Court notes that Plaintiff’s request for transfer forms the basis for her Reasonable Accommodations Cause of Action, where it is properly pled.

Accordingly, Defendants’ Motion for Summary Adjudication of the Fifth Cause of Action is GRANTED.

Next, Defendants argue that Plaintiff’s Seventh Cause of Action for Wrongful Termination in Violation of Public Policy fails, as this cause of action is derivative of her FEHA claim, and where a defendant is not found to be in violation of FEHA, they cannot state a claim for wrongful termination in violation of public policy.

As Plaintiff has successfully stated a claim under FEHA, Defendants’ argument is unavailing.

Accordingly, Defendants’ Motion for Summary Adjudication of the Seventh Cause of Action is DENIED.

Next, Defendants argue that Plaintiff’s Eighth Cause of Action for Intentional Infliction of Emotional Distress fails.

The elements of an intentional infliction of emotional distress cause of action are: (1) extreme and outrageous conduct by the defendant; (2) intention to cause or reckless disregard of the probability of causing emotional distress; (3) severe emotional suffering; and (4) actual and proximate causation of the emotional distress. (See Moncada v. West Coast Quartz Corp. (2013) 221 Cal.App.4th 768, 780; Wilson v. Hynek (2012) 207 Cal.App.4th 999, 1009.) To satisfy the element of extreme and outrageous conduct, defendant’s conduct “‘must be so extreme as to exceed all bounds of that usually tolerated in a civilized society.’” (Moncada, supra, 221 Cal.App.4th at 780 (quoting Trerice v. Blue Cross of California (1989) 209 Cal.App.3d 878, 883).)

Here, Defendants argue that Plaintiff’s IIED claim is barred by workers’ compensation exclusivity, that there is no evidence of extreme or outrageous behavior, and that there is no evidence of severe emotional distress.

First, Defendants argue that Plaintiff’s claim is barred by Worker’s Compensation Exclusivity.

The Workers Compensation Act (“WCA”) governs compensation to employees for injuries incurred in the course and scope of their employment. (See Cal. Const., art. XIV, § 4; Cal. Labor Code, § 3201; Charles J. Vacanti, M.D., Inc. v. State Compensation Insurance Fund (2001) 24 Cal.4th 800, 810.) Compensation under the WCA is an employee’s exclusive remedy against an employer for injuries sustained out of and in the course of employment. (See Cal. Labor Code, §§ 3600(a), 3602(a).) Whether exclusivity bars a cause of action against an employer depends on whether the alleged injury falls within the scope of the exclusive remedy provisions. (See Charles J. Vacanti, M.D., Inc., supra, 24 Cal.4th at 811.) The exclusive remedy provisions apply only in cases of industrial personal injury or death. (Shoemaker v. Myers (1990) 52 Cal.3d 1, 16.) The exclusive remedy provisions do not apply where the dual capacity doctrine applies. (See id.) The dual capacity doctrine applies where the injury stems from an employer-employee relationship that is distinct and invokes a different set of obligations than the employer’s usual duties to its employee. (See id.; Cole v. Fair Oaks Fire Protection District (1987) 43 Cal.3d 148, 161-62.) Causes of action predicated upon an injury that is collateral to or derivative of an injury compensable by the exclusive remedies of the WCA may be subject to the exclusivity bar. (Id.) “While common law tort claims are generally preempted [citation], claims for separate injuries under distinct statutory schemes are not.” (Veguez v. Governing Board of Long Beach Unified School District (2005) 127 Cal.App.4th 406, 418.)

However, Plaintiff argues that her emotional distress is caused by discrimination and is therefore not subject to workers’ compensation exclusivity. (See Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 288 (“Neither discrimination nor harassment is a normal incident of employment.”).) Accordingly, Workers Compensation Exclusivity does not apply.

Next, Defendants argue that Plaintiff fails to provide evidence of any extreme or outrageous conduct.

“Behavior may be considered outrageous if a defendant (1) abuses a relation or position which gives him power to damage the plaintiff’s interest; (2) knows the plaintiff is susceptible to injuries through mental distress; or (3) acts intentionally or unreasonably with the recognition that the acts are likely to result in illness through mental distress.” (McDaniel v. Gile (1991) 230 Cal.App.3d 363, 372.)

A personnel management decision does not constitute extreme and outrageous conduct even if it was improperly motivated by discrimination and retaliation. (See Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 79-80; see also Light v. California Department of Parks and Recreation (2017) 14 Cal.App.5th 75, 101-02.)

Here, Defendants argue that the actions constituting Plaintiff’s claim for IIED; her allegedly unmerited performance evaluations and eventual termination; do not constitute extreme and outrageous behavior, even accepting Michno’s alleged discriminatory intent as true.

In Opposition, Plaintiff argues that her allegations do not merely consist of the unmerited performance evaluation and eventual termination, but also that Plaintiff reported Michno’s misbehavior to Starbucks Human Resources and was ignored. (PSSUMF 56.) Additionally, Plaintiff contends that Starbucks management repeatedly went against Starbuck’s policy by ignoring her complaints and request for transfer. (PSSUMF 59-63.)

However, these allegations all represent inaction on the part of Starbucks’ management. Inaction, absent an intent to injure, is insufficient to constitute extreme and outrageous behavior for intentional infliction of emotional distress liability. (Davidson v. City of Westminster (1982) 32 Cal.3d 197, 210.)

Accordingly, the Court finds that Plaintiff does not provide evidence sufficient to demonstrate a triable issue of material fact on the issue of whether Defendants’ conduct was extreme and outrageous , and Defendants’ Motion for Summary Adjudication of the Eighth Cause of Action for Intentional Infliction of Emotional Distress is GRANTED.

Next, Defendants argue that Plaintiff’s Ninth Cause of Action for Negligent Supervision and Retention fails.

Liability for negligent hiring and supervision is based upon the reasoning that if an enterprise hires individuals with characteristics which might pose a danger to customers or other employees, the enterprise should bear the loss caused by the wrongdoing of its incompetent or unfit employees. The tort has developed in California in factual settings where the plaintiff's injury occurred in the workplace, or the contact between the plaintiff and the employee was generated by the employment relationship. (Mendoza v. City of Los Angeles (1998) 66 Cal.App.4th 1333, 1339-1340.)

The elements of negligent hiring or retention are (1) Employer’s hiring or retention of an employee; (2) who is incompetent or unfit; (3) employer had reason to believe undue risk of harm would exist because of the employment; and (4) the harm occurs. (Federico v. Superior Court (1997) 59 Cal.App.4^th 1207, 1213-14.)

Here, Defendants argue, first, that Plaintiff’s claim as to Michno fails because her allegations are mostly against Michno, and Michno cannot be found to supervise herself.

As Plaintiff does not contest this point in her Opposition, Defendants’ Motion for Summary Adjudication of the Ninth Cause of Action is GRANTED as to Michno.

As to Starbucks, Defendants argue that Plaintiff fails to provide evidence showing that any supervisor knew or should have known that Michno had a propensity for discriminatory behavior.

However, Plaintiff notes that Michno was promoted after another employee filed a lawsuit against her alleging disability discrimination. (PSSUMF 21.) Additionally, Plaintiff alleges that she repeatedly reported Michno to human resources without investigation or remedy. (PSSUMF 50, 52-63, 64-67.)

Accordingly, Plaintiff has established a triable issue of material fact as to whether Starbucks management knew or should have known of Michno’s allegedly discriminatory behavior, and Defendants’ Motion for Summary Adjudication of the Ninth Cause of Action is DENIED as to Starbucks.

Finally, Defendants move for summary adjudication of Plaintiff’s request for punitive damages.

California Civil Code section 3294 authorizes the recovery of punitive damages in non-contract cases where “the defendant has been guilty of oppression, fraud, or malice . . . .” (Civ. Code § 3294(a).) “‘Malice’ means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” (Id. § 3294(c)(1).) Punitive damages thus require more than the mere commission of a tort. (See Taylor v. Superior Court (1979) 24 Cal.3d 890, 894-95.) Specific facts must be pleaded in support of punitive damages. (See Hillard v. A.H. Robins Co. (1983) 148 Cal.App.3d 374, 391-92.)

When the defendant is a corporation, “the oppression, fraud, or malice must be perpetrated, authorized, or knowingly ratified by an officer, director, or managing agent of the corporation.” (Wilson v. Southern California Edison Company (2015) 234 Cal.App.4th 123, 164; see Civ. Code § 3294(b).)

“In the usual case, the question of whether the defendant's conduct will support an award of punitive damages is for the trier of fact, ‘since the degree of punishment depends on the peculiar circumstances of each case.’ [Citations.] [¶] But the issue may be resolved on summary judgment, giving due regard to the higher proof standard. While ‘the “clear and convincing” evidentiary standard is a stringent one, it does not impose on a plaintiff the obligation to “prove” a case for punitive damages at summary judgment.’ (American Airlines, Inc. v. Sheppard, Mullin, Richter & Hampton (2002) 96 Cal.App.4th 1017, 1049.) ‘However, where the plaintiff's ultimate burden of proof will be by clear and convincing evidence, the higher standard of proof must be taken into account in ruling on a motion for summary judgment or summary adjudication, since if a plaintiff is to prevail on a claim for punitive damages, it will be necessary that the evidence presented to meet the higher evidentiary standard.’ (Ibid.)

Here, Defendants allege that Plaintiff fails to allege any action on the part of Starbucks officer, director, or managing agent, and that Plaintiff fails to provide any evidence demonstrating fraud, malice, or oppression.

First, Defendants argue the Plaintiff does not allege any action on the part of a Starbucks officer, director, or managing agent.

However, as Plaintiff notes in Opposition, “the scope of a corporate employee’s discretion and authority under our test is. . . a question of fact for decision on a case-by-case basis.” (White v. Ultramar, Inc. (1999) 21 Cal.4^th 563, 567.

Here, where Plaintiff’s allegations mostly revolve around Michno, and where Plaintiff alleges that Michno has substantial authority and control within Starbucks, the question of whether Michno is a managing agent of Starbucks is a question properly left to the trier of fact.

Next, Defendants argue that Plaintiffs have not demonstrated any facts showing oppression, fraud, or malice.

However, as the California Supreme Court has found that violations of FEHA can support a finding of punitive damages (See Roby v. McKesson (2009) 47 Cal.4^th 686), the issue of whether the allegations here constitute fraud, malice, or oppression is properly left to the jury.

Accordingly, Defendants’ Motion for Summary Adjudication on the issue of punitive damages is DENIED.

[1] As Defendants note in their moving papers, CFRA is the California counterpart to the FMLA. The provisions of the two acts are “nearly identical” and “California courts routinely rely on federal cases interpreting the FMLA when reviewing the CFRA.” (Rogers v. Cnty. of Los Angeles) (2011) 198 Cal. App. 4th 480, 487. For simplicity, the Court will refer to both statutes as CFRA.

Superior Court of California

County of Los Angeles

Department 78