Judge: Ronald F. Frank, Case: 21TRCV00791, Date: 2023-08-16 Tentative Ruling
Case Number: 21TRCV00791 Hearing Date: August 16, 2023 Dept: 8
Tentative Ruling¿
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HEARING DATE: August 16, 2023¿
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CASE NUMBER: 21TRCV00791
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CASE NAME: Cesar Esqueda
v. John Bean Technologies Corporation, et al.
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MOVING PARTY: Defendant, John Bean Technologies Corporation, Nino
Orquiola, and Javier Banda
RESPONDING PARTY: Plaintiff, Cesar Esqueda
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TRIAL DATE: November
20, 2023
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MOTION:¿ (1) Motion for Summary Judgment,
or in the alternative, Summary Adjudication
¿ Tentative Rulings: (1) Motion for Summary Judgment is GRANTED. Defendants have carried their burden of proof
and Plaintiff’s opposition papers, which do not contain a declaration under
penalty of perjury, fail to raise a triable issue of material fact as to the
single cause of action in the First Amended Complaint for retaliatory discharge
asserted to be because of Plaintiff’s filing of a PAGA claim
I. BACKGROUND¿¿
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A. Factual¿¿
On
October 27, 2021, Plaintiff, Cesar Esqueda (“Plaintiff”) filed a Complaint
against John Bean Technologies Corporation Nino Orquiola, Javiar Banda, and
DOES 1 through 50. The Complaint alleges causes of action for: (1) Disability
Discrimination in Violation of California Government Code § 12940; (2) Failure
to Accommodate in Violation of the FEHA; (3) Failure to Engage in the
Interactive Process in Violation of the FEHA; (4) Hostile Work Environment
Harassment in Violation of California Government Code § 12940(j); (5) Failure
to Prevent Discrimination, Harassment, and Retaliation in Violation of
California Government Code § 12940, et seq. (FEHA); (6) Retaliation in
Violation of California Government Code § 12940, et seq1.; (7) Wrongful
Termination in Violation of Public Policy; (8) Intentional Infliction of
Emotional Distress; (9) Negligent Infliction of Emotional Distress; (10)
Whistleblower Violations California Labor Code §§ 1102.5; (11) Breach of
Implied in Fact Employment Contract; (12) Discharge in Violation of Labor Cade
§§6310, 98.6, 98.7; and (13) Unfair Business Practices in Violation of
California Business and Professions Code §§ 17200-17208.
On
July 21, 2022, Judge Deirdre Hill sustained without leave to amend, Defendants’
demurrer as to the second and third causes of action against individual
defendants, Javier Banda and Nino Orquiola. She also sustained without leave to
amend, the eighth and ninth causes of action. Further, she sustained with leave
to amend, the fourth cause of action, and overruled the demurrer as to the
eleventh cause of action.
On
August 9, 2022, Plaintiff, in pro per, filed a First Amended Complaint alleging
that he was wrongfully terminated in retaliation for having filed a class
action complaint on September 17, 2019.
Defendants,
John Bean Technologies Corporation, Nino Orquiola, and Javier Banda now file a
Motion for Summary Judgment.
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B. Procedural¿¿
On April 24, 2023, Defendants, John
Bean Technologies Corporation, Nino Orquiola, and Javier Banda filed a Motion
for Summary Judgment. As of the statutory time to file opposition to the
Motion, i.e., 14 days before the hearing, Plaintiff had not filed any opposition
papers and on July 7, 2023, Defendants filed a statement of non-opposition. On July
12, 2023, the notice hearing date for the motion, the Court continued the
hearing to allow Plaintiff an additional two weeks to file an opposition. On
July 26, 2023, Plaintiff filed an opposition. On August 10, 2023, Defendants
filed a reply brief.
II. EVIDENTIARY OBJECTIONS
Defendants’ Objections to Plaintiff’s
Evidence
Sustain: All. Plaintiff’s opposition papers do not contain
admissible evidence because the document filed is not a declaration under penalty
of perjury.
Overrule: None.
III. ANALYSIS¿
A. 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.) CCP Section 437(c) “requires the trial
judge to grant summary judgment if 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.”¿ (Adler
v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)¿ “The function
of the pleadings in a motion for summary judgment is to delimit the scope of
the issues; the function of the affidavits or declarations is to disclose
whether there is any triable issue of fact within the issues delimited by the
pleadings.”¿ (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67,
citing FPI Development, Inc. v. Nakashima (1991) 231 Cal. App. 3d 367,
381-382.)¿
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.
(CCP § 437c(p)(2); 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.)¿
Once the defendant has met that burden, the burden shifts
to the plaintiff to show that a triable issue of one or more material facts
exists as to that cause of action or a defense thereto.¿¿¿
To establish a triable issue of material fact, the party
opposing the motion must produce substantial responsive evidence that is
admissible under the rules of evidence. (Sangster v. Paetkau (1998) 68
Cal.App.4th 151, 166.)
B. Discussion
Defendants
bring this motion on the grounds that they argue Plaintiff cannot establish a prima
facie case of wrongful termination because: (1) Plaintiff cannot establish a causal
connection between the protected activity of filing a complaint in September
2019 and the termination of his employment nearly two years later on July 30,
2021, which is outside the required timeframe to establish temporal proximity
as a matter of law; (2) JBT had a legitimate business reason to terminate
Plaintiff’s employment; and (3) Plaintiff cannot present any evidence that the
stated reason for the termination was pretextual and that the real reason for
termination was “because of” retaliation, as required to defeat summary
judgment.
This
Court also notes that although there are numerous procedural deficiencies in Plaintiff’s
opposition, the Court finds good cause to consider it in ruling on the motion.
Plaintiff’s Operative Complaint
As
the Court noted above, Plaintiff’s original complaint had many causes of
action, including: (1) Disability Discrimination in Violation of California
Government Code § 12940; (2) Failure to Accommodate in Violation of the FEHA;
(3) Failure to Engage in the Interactive Process in Violation of the FEHA; (4)
Hostile Work Environment Harassment in Violation of California Government Code
§ 12940(j); (5) Failure to Prevent Discrimination, Harassment, and Retaliation
in Violation of California Government Code § 12940, et seq. (FEHA); (6)
Retaliation in Violation of California Government Code § 12940, et seq1.; (7)
Wrongful Termination in Violation of Public Policy; (8) Intentional Infliction
of Emotional Distress; (9) Negligent Infliction of Emotional Distress; (10)
Whistleblower Violations California Labor Code §§ 1102.5; (11) Breach of
Implied in Fact Employment Contract; (12) Discharge in Violation of Labor Cade
§§6310, 98.6, 98.7; and (13) Unfair Business Practices in Violation of
California Business and Professions Code §§ 17200-17208.
On
the July 21, 2022 hearing on Defendants’ Demurrer, Judge Deirdre Hill sustained
without leave to amend, Defendants’ demurrer as to the second and third causes
of action against individual defendants, Javier Banda and Nino Orquiola. She
also sustained without leave to amend, the eighth and ninth causes of action.
Further, she sustained with leave to amend, the fourth cause of action, and
overruled the demurrer as to the eleventh cause of action.
However,
instead of keeping the overruled causes of action, amending the fourth cause of
action, and maintaining the causes of action that were not subject to
Defendants’ original demurrer, on August 9, 2022 Plaintiff filed a First
Amended Complaint that appears to abandon all other causes of action, and
instead only alleges a single cause of action for wrongful termination in
violation of public policy. As noted by Defendants, an amended pleading
supersedes the original one, which ceases to perform any function as a
pleading. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d
525, 884.) Further, because here is but one complaint in a civil action (Ford
v. Superior Court (1973) 34 Cal.App.3d 338, 343), the filing of an amended
complaint moots a motion directed to a prior complaint. (See Sylmar Air
Conditioning v. Pueblo Contracting Services, Inc. (2004) 122 Cal.App.4th
1049, 1054, 18 Cal.Rptr.3d 882.) As such, the causes of action in Plaintiff’s
original complaint are now rendered moot, and the Court will analyze the Motion
for Summary Judgment of Plaintiff’s FAC, which alleges the single cause of
action for Wrongful Termination in violation of public policy.
Wrongful Termination
Defendants argue that Plaintiff’s
wrongful termination claim fails as a matter of law. When
deciding issues of adverse employment actions, such as retaliation,
discrimination, and wrongful termination, California courts apply the McDonnell Douglas burden-shifting
method of analysis. (Caldwell v. Paramount Unified School Dist.
(1995) 41 Cal.App.4th 189, 203; Loggins v. Kaiser Permanente Intern.
(2007) 151 Cal.App.4th 1102, 1108–09.) That
analysis for the allocation of burdens of proof in an employment discrimination
case as articulated in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 802-03,
requires (1) the complainant or plaintiff to first carry the initial burden of establishing
a prima facie case of discrimination; (2) that upon doing so the plaintiff
shifts the burden to the employer to articulate a legitimate,
non-discriminatory reason for the employer’s adverse employment actions; and if
so, (3) the burden is then shifted back to the employee/plaintiff to prove that
this reason “was a pretext to mask an illegal motive.” (Clark v.
Claremont University Center (1992) 6 Cal.App.4th 639, 662, quoting Mixon
v. Fair Employment & Housing Com. (1987) 192 Cal.App.3d 1306, 1317.) Throughout the three steps of this
burden-shifting analysis, “plaintiff retains the burden of persuasion. [At the
third step, plaintiff] must have the opportunity to demonstrate that the
proffered reason was not the true reason for the employment decision. This
burden now merges with the ultimate burden of persuading the court that [h]e
has been the victim of intentional discrimination. [H]e may succeed in this
either directly by persuading the court that a discriminatory reason more
likely motivated the employer or indirectly by showing that the employer's
proffered explanation is unworthy of credence. (Texas Dept. of Community
Affairs v. Burdine (1981) 450 U.S. 248, 256.)
It is
typical for an employer to seek summary judgment using this analytical framework,
“arguing that the plaintiff has not satisfied one of the four elements of the
prima facie case and thus is not entitled to proceed to trial, or that there is
no disputed issue of material fact regarding the motivation behind the adverse
employment decision.” (Caldwell,
supra, 41 Cal.App.4th at p. 202.) “If the employer presents admissible evidence either that
one or more of plaintiff's prima facie elements is lacking, or that the adverse
employment action was based on legitimate, nondiscriminatory factors, the
employer will be entitled to summary judgment unless the plaintiff produces
admissible evidence which raises a triable issue of fact material to the
defendant's showing.” (Id. at p. 203.) Therefore, on a motion for summary
judgment by the employer / defendant, “Once the employer makes a sufficient
showing of a legitimate reason for discharge, i.e., that it had a lawful,
nondiscriminatory reason for the termination then the discharged employee
seeking to avert summary judgment must demonstrate either (by additional facts
or legal argument) that the defendant's showing was in fact insufficient or (by
competent evidentiary materials) that there was a triable issue of fact
material to the defendant's showing. With respect to the latter choice, the employee
must produce substantial responsive evidence that the employer's showing was
untrue or pretextual. For this purpose, speculation cannot be regarded as
substantial responsive evidence.” (Hanson v. Lucky Stores, Inc.
(1999) 74 Cal.App.4th 215, 225.)
“[T]he great weight of
federal and California authority holds that an employer is entitled to summary
judgment if, considering the employer's innocent explanation for its actions,
the evidence as a whole is insufficient to permit a rational inference that the
employer's actual motive was discriminatory.” (Guz v. Bechtel Nat. Inc.
(2000) 24 Cal.4th 317, 361.) “It is the employer's honest belief in the stated
reasons for firing an employee and not the objective truth or falsity of the
underlying facts that is at issue in a discrimination case.” (King v. United
Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 436.)
1.
Whether
Plaintiff Can Establish a Prima Facie Case for Wrongful Termination
Here,
Plaintiff has filed an opposition after this Court granted an additional two
weeks to file one. Plaintiff’s opposition fails for numerous procedural errors,
including: (1) Failure to serve Defendants with the Opposition; (2) Failure to
submit a Response to Defendants’ Separate Statement of Undisputed Material Facts
as required by CCP § 437c(b)(3); (3) Failure to submit any admissible evidence
in Opposition to the Motion; (4) Failure to submit any Exhibits, any case law
authority, or a Points and Authorities in Opposition to the Motion; and (5) Failure
to present any reason why this Court should not grant the Motion and avoid the
necessity of conducting a non-jury court trial on November 20, 2023. However,
the Court will address the opposition nonetheless below.
“The elements of a claim for wrongful
discharge in violation of public policy are (1) an employer-employee
relationship, (2) the employer terminated the plaintiff’s employment, (3) the
termination was substantially motivated by a violation of public policy, and
(4) the discharge caused the plaintiff harm. It is well established that a
termination premised on an employee’s refusal to violate either a statute or an
administrative regulation may support a claim for wrongful termination in
violation of public policy.” (Nosal-Tabor
v. Sharp Chula Vista Medical Center (2015) 239 Cal.App.4th 1224, 1234,
citation omitted.)
Here, the opposition asserts that in his
twelve (12) years of working for the airport, he had never had a problem with
LAWA or his previous job until he filed a lawsuit against JBT. Plaintiff also
discusses the point system against his badge, which he argues he appealed
because he got off his bike and began to walk, so he contends he should not
have received as many points as he did. Plaintiff notes, in his opposition,
that when he returned from his days off, he was requested in the HR department,
and they noted that he was suspended. During his suspension, Plaintiff notes
that Javiar Banda and Luiz Quiroz from HR never got back to him after the 7-day
suspension, and he began to notice his work email was inactive during his
suspension, so Plaintiff decided to call them on the seventh day. Plaintiff
asserts that Susy Shedden then called Plaintiff to fire him over the phone and
sent a termination letter through email while on the phone. Plaintiff notes in
his opposition, that JBT retaliated against him from firing the class action
lawsuit, and that he was fired because of it.
Based
on this, the Court notes that Plaintiff established the first two of the four elements
of a prima facie case, but not the 3rd or 4th elements. The two elements established, and not in
dispute by Defendants, are the existence of an employee-employer relationship,
and that he was terminated. Plaintiff’s
lawsuit alleges, and his opposition papers assert, that his termination was in
violation of public policy because it came after he filed a class action
lawsuit. While the elements of wrongful termination have been loosely pleaded,
Plaintiff provides no admissible evidence via exhibits, declaration, or
separate statement of facts, to prove any of the above allegations.
Defendants
argue that Plaintiff has not established a prima facie case for wrongful
termination because Plaintiff filed his PAGA letter with the LWDA in September
2019, and subsequently filed his class action lawsuit on February 26, 2020.
(UMF 11-12.) Defendants argue, however, that Plaintiff was not terminated until
July 30, 2021, nearly two years after he submitted his PAGA letter. (UMF 20.)
Based on this, Defendants argue that Plaintiff cannot present evidence
demonstrating a causal nexus between his protected activity and his
termination. The Court will discuss temporal proximity in the third section
below.
The
opposition provides a very unclear retelling of essentially Plaintiff’s FAC, and
the Court does not find that Plaintiff has carried his burden in proving a
prima facie case for wrongful determination. However, for the purposes of this
ruling, the Court will discuss how each side’s presentation on this motion fit
or do not fit within the burden-shifting analytic framework detailed above.
2.
Whether
there was a Legitimate Reason for the Employer to Terminate Plaintiff
Defendants
assert that they have a legitimate business reason for terminating Plaintiff.
Defendants argue that JBT’s decision to terminate Plaintiff was triggered by
Plaintiff’s violation of LAWA Regulations and his failure to follow the lawful
instructions of a Security Officer on July 19, 2021, after Plaintiff received a
Final Written Warning on March 10, 2021 (UMF 15-21.) Defendants contend that
Plaintiff received multiple verbal and written warnings from various managers
at JBT for aggressive and improper conduct in the workplace leading up to the
termination of his employment (UMF 9-10, 14-16.) Defendants note that contrary
to Plaintiff’s assertion in the FAC, his first two warnings were issued BEFOE his
PAGA letter submission. (UMF 9-10.) Defendants note that after his PAGA filing,
he was then issued a verbal warning in November 2020, and a Final Written
Warning in March 2021 by Site Manager, Orquiola, for further incidents of
unprofessional and insubordinate conduct. (UMF 14-16.) Defendants note that
Plaintiff then violated LAWA policies even after receiving the Final Written
Warning four months earlier, when he engaged in the July 18, 2021 conduct.
Defendants assert that this citation was upheld by LAWA on Appeal. (UMF 17-19.)
As such, Defendants assert that Plaintiff was terminated based on his improper
conduct while he was on a Final Written Warning for similar behavior (UMF 20.)
Once an employer presents a nonretaliatory reason for the
discharge, “[t]he central issue is and should remain whether the evidence as a whole supports a reasoned inference that the challenged action was the
product of discriminatory or retaliatory animus. The employer’s mere
articulation of a legitimate reason for the action cannot answer this question; it can
only dispel the¿presumption¿of improper motive that would otherwise¿entitle¿the
employee to a judgment in his favor. Thus, citing a legitimate
reason for the challenged action will entitle
the employer to summary judgment only when the employee’s showing, while
sufficient to invoke the presumption, is¿too weak¿to sustain a reasoned
inference in the employee’s favor.” (Mamou v. Trendwest Resorts, Inc.¿(2008)
165 Cal.App.4th 686, 715.) This standard makes it difficult to resolve claims of
unlawful discharge on summary judgment, where the court draws all reasonable
inferences in favor of the party opposing such a motion. Many employment cases
will depend to some degree on “issues of intent, and motive, and hostile
working environment, issues not determinable on paper. Such cases . . . are
rarely appropriate for disposition on summary judgment, however liberalized it
be.” (Nazir v. United Airlines, Inc.¿(2009) 178 Cal.App.4th 243, 286.)
The Court must analyze whether the Plaintiff’s showing is too weak to
sustain a reasoned inference in Plaintiff’s favor. However, because Plaintiff’s
opposition does not provide the Court with any admissible evidence, and merely
reasserts the facts in the FAC, the Court is left with allegations in
Plaintiff’s case, and evidence in Defendants’. Defendants’ Evidence, including
the two written warnings, issued prior to the PAGA filings, indicates that
Plaintiff’s termination was predicated on prior acts of misconduct in addition
to subsequent misconduct.
3.
Whether
the Plaintiff can Prove the Reason was Pretext to Mask Illegal Motive
Plaintiff
has failed to carry his shifted burden in providing evidence that could prove
the reason the employer’s “legitimate reason” was a pretext to mask his claimed
illegal motive since Plaintiff has provided no evidence (i.e., a declaration
under penalty of perjury) at all. Further, Defendants argue that the temporal
proximity between Plaintiff’s protected action, and is termination was too
great to act as a causal link between the filing of the PAGA claim and the
termination of Plaintiff. Although the Court does note that the majority of the
written and verbal warnings took place after the filing of the PAGA claim,
Plaintiff has failed to offer any evidence to raise a triable issue of fact to oppose
Defendants’ assertion that this was reoccurring pre-PAGA letter behavior of
Plaintiff. Had the evidence before the
Court shown that his written and verbal warnings only came after the filing of
PAGA claim, or that prior to the filing of the PAGA claim he had a pristine
employment record, then there could have been a triable issue of fact as to why
he was receiving the verbal and written warnings after the PAGA filing.
However, such evidence does not exist to suggest that Plaintiff’s termination
was because of his PAGA filing, and not because of his documented history with misconduct
incidents.
As
such, and because Defendants have met their burdens at the first and second
steps of the burden-shifting analysis and Plaintiff has not carried his burden
at the third step, the Court GRANTS Defendants’ Motion for Summary Judgement.
Wrongful
Termination Claims Against Orquiola and Banda
Defendants further argue that
Plaintiff cannot sustain a cause of action for wrongful termination against
Defendants Orquiola or Banda as they are supervisory employees. Defendants
argue that “as a matter of law, only an employer can be liable for the tort of
wrongful discharge in violation of public policy.” (Khajavi v. Feather River
Anesthesia Med. Group (2000) 84 Cal. App. 4th 32, 53.) Defendants cite to Miklosy
v. Regents of Univ. of Calif. (2008) 44 Cal. 4th 876. In Miklosy,
two employees claimed they had been wrongfully terminated in retaliation for
lodging safety complaints about a project they worked on at the Lawrence
Livermore National Laboratory. (Id. at 884.) The Plaintiffs brought
their action against their employers and supervisors for retaliation in
violation of the Whistleblower Act, wrongful termination, wrongful constructive
termination, and IIED. However, the Court held that there was no “justification
for imposing personal liability on supervisorial employees based on a common
law tort that depends on the existence of an employer-employee relationship
between tortfeasor and the victim.” (Id. at 901.) Instead, the Court
conclude “that the common law Tameny cause of action for wrongful
termination in violation of public policy lies only against an employer.” (Ibid.)
Here,
this Court also contends that no evidence has been presented to suggest that
Defendants Orquiola and Banda are employers of Plaintiff. Instead, Defendants
present evidence to suggest that both Defendants have roles which are more akin
to supervisory roles. As such, like in Miklosy, this Court finds that
the cause of action for Wrongful Termination in Violation of Public Policy
against Defendants Orquiola and Banda cannot remain. The Court GRANTS
Defendants’ Motion for Summary Judgment.
IV.
CONCLUSION¿¿
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For the foregoing reasons, this
Court’s tentative ruling is to GRANT Defendants’ Motion for Summary Judgment.
Defendants are ordered to give
notice.