Judge: Ronald F. Frazier, Case: 37-2021-00008945-CU-WT-CTL, Date: 2023-09-29 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - September 28, 2023

09/29/2023  08:30:00 AM  C-65 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Ronald F. Frazier

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Civil - Unlimited  Wrongful Termination Summary Judgment / Summary Adjudication (Civil) 37-2021-00008945-CU-WT-CTL GUERRERO VS SFS BEAUTY CA LLC [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion for Summary Judgment and/or Adjudication, 04/28/2023

Defendants SFS Beauty CA LLC ('SFS'), Duty Free Partners ('Duty Free'), and Kymberli Parker's ('Parker') Motion for Summary Judgment is GRANTED IN PART and DENIED IN PART. (ROA 183.) First Cause of Action – Discrimination, Retaliation, and Harassment (Gender Expression) As to Plaintiff's claim for discrimination on the basis of gender expression against Defendant Parker (Issue No. 4), the motion is unopposed and granted. (Pltf. Opp. at p. 9, fn. 3.) As to Plaintiff's claim for discrimination on the basis of gender expression against Defendants SFS and Duty Free (Issue No. 1), the motion is denied. The court finds Plaintiff has set forth facts sufficient to establish a prima facie case, and that there are triable issues of material fact as to whether SFS and Duty Free had a legitimate business reason for Plaintiff's termination, or whether those reasons were a mere pretext. (Pltf. Resp. Sep. Stmt. at ¶¶ 34 and 37, Add'l Facts at ¶ 48-51, 75-78.) As to Plaintiff's claim for retaliation on the basis of gender expression against all Defendants (Issue No.

3), the motion is unopposed and granted. (Pltf. Opp. at p. 9, fn. 3.) As to Plaintiff's claim for harassment on the basis of gender expression against all Defendants (Issue No. 2), the motion is denied. The court finds there are triable issues of material fact as to whether Defendants' conduct created a hostile work environment and whether Parker's conduct and comments toward Plaintiff were unwelcome. (Govt. Code § 12923(b); Meritor Sav. Bank, FSB v. Vinson (1986) 477 U.S. 57, 68; Pltf. Sep. Stmt. at ¶¶ 19-20, 29-30, 57-64, 66.) Second Cause of Action – Discrimination, Retaliation, and Harassment (Sexual Orientation) As to Plaintiff's second cause of action against all Defendants (Issue Nos. 5-8), the motion is unopposed and granted. (Pltf. Opp. at p. 9, fn. 3.) Third Cause of Action – Discrimination, Retaliation, and Harassment (Disability) As to Plaintiff's claim for discrimination on the basis of disability against Defendant Parker (Issue No.

12), the motion is unopposed and granted. (Pltf. Opp. at p. 9, fn. 3.) As to Plaintiff's claim for discrimination on the basis of disability against Defendants SFS and Duty Free (Issue No. 9), the motion is denied. The court finds Plaintiff has set forth facts sufficient to establish a Calendar No.: Event ID:  TENTATIVE RULINGS

2968067  5 CASE NUMBER: CASE TITLE:  GUERRERO VS SFS BEAUTY CA LLC [IMAGED]  37-2021-00008945-CU-WT-CTL prima facie case, and that there are triable issues of material fact as to whether SFS and Duty Free had a legitimate business reason for Plaintiff's termination, or whether those reasons were a mere pretext.

(Pltf. Resp. Sep. Stmt. at ¶¶ 34, 37, 48-51, and 75-78.) As to Plaintiff's claim for retaliation on the basis of disability against all Defendants (Issue No. 11), the motion is unopposed and granted. (Pltf. Opp. at p. 9, fn. 3.) As to Plaintiff's claim for harassment on the basis of disability against all Defendants (Issue No. 10), the motion is denied. (Govt. Code § 12923(b); Meritor Sav. Bank, FSB v. Vinson (1986) 477 U.S. 57, 68; Pltf. Sep. Stmt. at ¶¶ 8-12.) Fourth Cause of Action – Hostile Work Environment As to Plaintiff's fourth cause of action (Issue No. 13), the motion is denied. (Govt. Code § 12923(b); Meritor Sav. Bank, FSB v. Vinson (1986) 477 U.S. 57, 68; Pltf. Sep. Stmt. at ¶¶ 8-12, 19-20, 29-30, 57-64, 66.) Fifth Cause of Action – Whistleblower Retaliation As to Plaintiff's fifth cause of action against Defendants SFS and Duty Free (Issue No. 14), the motion is denied. The court finds there are triable issues of material fact. (Pltf. Sep. Stmt. at ¶¶ 31, 68-73.) As to Plaintiff's fifth cause of action against Defendant Parker (Issue No. 15), the motion is denied.

Although Defendants' notice of motion asserts Parker cannot be liable for retaliation under the Labor Code, Defendants failed to provide any legal support for this position in their memorandum. As such, Defendants failed to meet their initial burden of persuasion, and the motion is denied on these grounds.

Sixth Cause of Action – Failure to Prevent Discrimination, Retaliation, and Harassment As to Plaintiff's fifth cause of action against Defendants SFS and Duty Free (Issue No. 16), the motion is denied. Defendants' argument for summary adjudication of this cause of action is that it is a derivative claim, and that if summary adjudication is granted as to Plaintiff's discrimination, retaliation, and harassment causes of action, summary adjudication should be granted as to this cause of action as well.

However, the court has denied summary adjudication of at least some of those causes of action.

Accordingly, summary adjudication is denied as to this cause of action as well.

As to Plaintiff's fifth cause of action against Defendant Parker (Issue No. 17), the motion is granted.

Although Defendants' notice of motion asserts Parker cannot be liable for this FEHA claim, Defendants failed to provide any legal support for this position in their memorandum. As such, Defendants failed to meet their initial burden of persuasion, and the motion is denied on these grounds.

Seventh Cause of Action – Wrongful Termination in Violation of Public Policy As to Plaintiff's seventh cause of action against Defendants SFS and Duty Free (Issue No. 18), the motion is denied. Defendants' argument for summary adjudication of this cause of action is that it is a derivative claim, and that if summary adjudication is granted as to Plaintiff's discrimination, retaliation, and harassment causes of action, summary adjudication should be granted as to this cause of action as well. However, the court has denied summary adjudication of at least some of those causes of action.

Accordingly, summary adjudication is denied as to this cause of action as well.

As to Plaintiff's seventh cause of action against Defendant Parker (Issue No. 19), the motion is unopposed and granted. (Pltf. Opp. at p. 9, fn. 3.) Eighth Cause of Action – Negligent Hiring and Supervision Calendar No.: Event ID:  TENTATIVE RULINGS

2968067  5 CASE NUMBER: CASE TITLE:  GUERRERO VS SFS BEAUTY CA LLC [IMAGED]  37-2021-00008945-CU-WT-CTL As to Plaintiff's eighth cause of action against all Defendants (Issue No. 20), the motion is unopposed and granted. (Pltf. Opp. at p. 9, fn. 3.) Prayer for Punitive Damages As to Plaintiff's prayer for punitive damages, the motion is denied. As a preliminary matter, Defendants failed to include this as an issue to be adjudicated in their notice of motion. Moreover, the court finds there are triable issues of material fact as to whether Defendants' conduct rises to malice or oppression.

(Pltf. Sep. Stmt. at ¶¶ 43, 47, 49-52, 76.) Calendar No.: Event ID:  TENTATIVE RULINGS

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