Judge: Stephen I. Goorvitch, Case: 20STCV35777, Date: 2022-08-11 Tentative Ruling

Case Number: 20STCV35777    Hearing Date: August 11, 2022    Dept: 39

Steven Hernandez v. Sonoco Products Company, et al.

Case No. 20STCV35777

Order #1 of 3

Defendant Raynaldo Flores’s Motion for Summary Judgment

INTRODUCTION

            Plaintiff Steven Hernandez (“Plaintiff”) filed this employment action against Sonoco Products Company (“Sonoco”) and Raynaldo Flores (“Flores”) (collectively, “Defendants”).  Plaintiff asserts a single cause of action against Flores, viz., the second cause of action for harassment under the Fair Employment and Housing Act (“FEHA”), Government Code sections 12940 et seq.  Now, Flores moves for summary judgment.

LEGAL STANDARD

“[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law[.] There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.”  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)  “[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.”  (Ibid.)  

EVIDENTIARY ISSUES

            The Court overrules Plaintiff’s objections to Flores’s evidence.  The Court also grants Flores’s request for judicial notice of his FEHA complaint.

DISCUSSION

The Court grants Flores’s motion for summary judgment based on the statute of limitations.  An aggrieved employee must file an administrative complaint with the California Department of Fair Employment and Housing before suing under the California Fair Employment and Housing Act.  Gov. Code, §§ 12960, 12965, subd. (b).)  The administrative complaint must set forth the “particulars” of the alleged discrimination.  (Gov. Code, § 12960, subd. (b).)  Plaintiff filed his administrative complaint on September 20, 2019.  (Request for Judicial Notice, Exh. #1.)  Therefore, the limitations period would be September 20, 2018, to September 20, 2019, though Plaintiff was terminated on or about December 12, 2018.  (See Plaintiff’s Separate Statement, ¶ 38.) 

Plaintiff attempts to rely on the continuing violations doctrine to pursue earlier conduct.  The continuing violations doctrine aggregates a series of wrongs or injuries for purposes of the statute of limitations, treating the limitations period as accruing for all of them upon commission of the final act.  (Willis v. City of Carlsbad (2020) 48 Cal.App.5th 1104, 1124.)  The continuing violations doctrine extends the limitations period for individual FEHA claims when acts inside and outside the limitations period are: (1) sufficiently similar in kind; (2) have occurred with reasonable frequency; and (3) have not acquired a degree of permanence.  (Carroll v. City and County of San Francisco (2019) 41 Cal.App.5th 805, 820; see also Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, 823.) 

            In order to pursue a harassment claim under FEHA, “the law requires the plaintiff to meet a threshold standard of severity or pervasiveness.”  (Etter v. Veriflo Corp. (1998) 67 Cal.App.4th 457, 467.)  Flores argues that there is no evidence of actionable harassment—or any harassment—during the limitations period—September 20, 2018, through December 12, 2018—that is sufficient to invoke the continuing violations doctrine.  During Plaintiff’s deposition, he could not identify any discipline in 2018:

            Q:        And on December 12, 2018, when you -- Ray Flores approached you about the compactor, was that the first time you had been disciplined in 2018?

            A:        That I can remember.  I can’t recall.

            Q:        You can’t recall one way or the other or --

            A:        I can’t recall if I was disciplined that year for anything else.  I can’t remember.

(Defendants’ Compendium of Exhibits, Exh. #4, p. 285.)  Nor did Plaintiff ascribe a time period to Flores’s alleged harassment.  For example, Plaintiff testified as follows:

            Q:        Did Ray Flores ever make any negative comments to you about your age?

            A:        I can’t remember if he did or not.  He said a lot of stuff to me.  Let me think here.  Has he ever -- I can’t remember.  I can’t remember.

(Id., Exh. #4, p. 67.)  The gravamen of Plaintiff’s harassment claim is that Flores made negative comments about his use of leave under the Family Medical Leave Act (“FMLA”).  (See Plaintiff’s Separate Statement, ¶¶ 18-19.)  Plaintiff cannot ascribe a time period to the alleged harassment: 

            Q:        Was there ever an instance where you needed to leave work to take FMLA, and anybody at Sonoco told you that you were not allowed to use it?

            A:        They wouldn’t say not allowed, but they would get upset, like I’m using too much.

            Q:        When you say “they,” who are you referring to?

            A:        Ray [Flores], Rachel [Wirthele].

            Q:        Anybody else?

            A:        That’s it.

            Q:        And so did Ray expressly say to you, “You’re using your FMLA too much?”

            A:        Yes.

            Q:        And when did he say this to you?

            A:        I can’t give you an exact date, but he told me two or three times up in a meeting that I’m using my FMLA too much. . . .

            . . .

            Q:        And other than Rachel and Ray’s comments that they believed you were taking too much time off for FMLA, did they ever make any other negative comments about your need for FMLA leave?

            A:        No. 

(Plaintiff’s Compendium of Evidence, Exh. #1, pp. 104-105, 109.)  Plaintiff also could not ascribe a time period to other alleged harassment his wife and he allegedly suffered from Flores: 

            Q:        And it wasn’t your complaint about Mr. Flores, it was your wife’s complaint, correct?

            A:        It was.

            Q:        You had never complained about Mr. Flores; is that right?

            A:        I did a lot of complaints on Mr. Flores.

. . .

            Q:        And was there a specific incident or some conduct by Mr. Flores that triggered [your wife] to make the complaint, to your knowledge?

            A:        Well, yes, he harassed us.  He always was throwing us bad looks.  Looking at the clock every time when we were on a break.  He only did it with me and my wife.  He didn’t do it with anyone else.

            . . .

            Q:        I’m asking if there was a particular day or incident that caused your wife to go speak with Lydia Rios?

            A:        No, I don’t know.  I can’t recall.

(Plaintiff’s Compendium of Evidence, Exh. #1, pp. 294-295.)  This evidence is sufficient to establish that there was no harassment during the limitations period—September 20, 2018, through December 12, 2018—that would invoke the continuing violations doctrine, shifting the burden to Plaintiff to proffer sufficient evidence giving rise to a triable issue.

            Plaintiff fails to satisfy his burden, as he identifies no harassment that occurred between September 20, 2018, and December 12, 2018, that is sufficiently similar to that which allegedly occurred before September 20, 2018.  The Court initially held a hearing on this motion on June 29, 2022, and Plaintiff’s counsel requested a continuance, representing that he had recently taken the deposition of Erika Armenta who testified that she witnessed Flores’s harassment of Plaintiff.  The Court continued the hearing and authorized the parties to file supplemental briefing and evidence. 

            The deposition transcript of Erika Armenta does not benefit Plaintiff’s claim against Flores.  Although Armenta testified that Flores “cursed” about Plaintiff and his wife’s use of FMLA leave, she does not know whether he did it in Plaintiff’s presence.  To the contrary, according to Armenta, Flores made the comments after Plaintiff and his wife had already left in the context of re-staffing their positions.  Specifically, Armenta testified as follows:

            Q:        When, according to you, Ray [Flores] was cursing about them leaving, did he ever do it in the presence of [Plaintiff] or [his wife]?

            A:        I don’t recall.  I don’t know.

            Q:        And did he ever curse about them having a disability, to your knowledge?

            A:        No.

            Q:        Did -- did he ever specifically curse about them being on FMLA?

            A:        No.

            Q:        Okay, so his issue was with regards to production, correct?

            A:        Yes.

            . . .

            Q:        Where were you when you heard Ray [Flores] say these things?

            A:        Either coming back from -- like passing his station or him grabbing us and saying, “Hey, they’re fucking leaving.  I need to shut it down -- a line down.”  Or “Hey, they’re leaving.  I need you to go over here and do this job now.  So they were switching us around.  Or -- or he would call us on the phone and say, “Hey, I need you to go to this other station because they’re leaving.”  Or -- he would always say kind of like, “They’re leaving.”  It wouldn’t be like, “Oh, an employee is leaving.”  It was always like, “Oh, they’re leaving.”

            Q:        Okay.  Did he say, “Steve and Maria” when he would say that?

            A:        Yeah.  Like, he would say, you know, “Maria and Steve are leaving.  I need you to go to this” -- whatever line they were leaving.  Or he would page and say, “I need you to help” or clean the line or push the bin or whatever he needed us to do.” . . .  Oh, I think it was just him trying to figure out where he was going to move us.  That’s how we found out.  Like, “A line is gong down” or “I need you to go to this line,” you know.  That’s how we knew. 

            Q:        So that was the only context in which he was cursing about that; correct?

            A:        Yeah, like, when -- yeah, when somebody would leave.

(Declaration of Daniel J. Friedman, Exh. #1, pp. 50-52.)  More important, Armenta does not testify that any of this occurred during the limitations period of September 20, 2018, and December 12, 2018.

            Plaintiff attempts to argue that the harassment was so pervasive that there is a triable issue whether it occurred during the limitations period.  That is not sufficient to invoke the continuing violations doctrine, as Plaintiff must identify specific harassment occurring during the limitations period that is sufficiently related to that occurring outside the limitations period.  If the Court adopted Plaintiff’s counsel’s argument, the continuing violations doctrine would have no meaning, as a plaintiff would not be required to identify some act of harassment occurring during the limitations period.

            In sum, Defendant has proffered sufficient evidence that there was no actionable harassment during the limitations period to invoke the continuing violations doctrine.  Plaintiff proffers insufficient evidence to give rise to a triable issue on this point.  Therefore, the Court finds that Plaintiff’s harassment claim against Flores is untimely.

            Plaintiff argues that the statute of limitations should be equitably tolled by filing a workers’ compensation claim in February 2018.  As an initial matter, Plaintiff did not raise this issue in the opposition, arguing only that Sonoco—not Flores—should be equitably estopped from relying on the statute of limitations.  Then, Plaintiff’s counsel added a new argument to his supplemental brief without authorization of the Court.  Regardless, Plaintiff does not allege equitable estoppel in the complaint, which is required.  (See Sofranek v. Merced County (2007) 146 Cal.App.4th 1238, 1250.)  Plaintiff must allege facts in the complaint establishing that he has exhausted his administrative remedies under FEHA and that his claims are timely.  “To establish estoppel as an element of a suit the elements of estoppel must be especially pleaded in the complaint with sufficient accuracy to disclose facts relied upon. . . .  [W]here the complaint pleads undisputed facts establish that equitable estoppel does not apply, the issue may be resolved on demurrer.”  (Id, pp. 1250-1251, citations omitted.)  The pleadings set the outer limits of materiality in a summary judgment proceeding.  (FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 382.)      

            The Court has considered Plaintiff’s remaining arguments and finds them to be without merit.  Therefore, the Court grants Flores’s motion for summary judgment. 

CONCLUSION AND ORDER

            The Court grants Flores’s motion for summary judgment.  Defendants’ counsel shall provide notice and file proof of such with the Court.   

Order #2 of 3

Sunoco’s Motion for Summary Judgment

            Plaintiff Steven Hernandez (“Plaintiff”) filed this employment action against Sonoco Products Company (“Sonoco”).  The Court’s tentative order is to grant summary judgment.

Order #3 of 3

Plaintiff’s Motion for Summary Adjudication

            The Court’s tentative order is to deny Plaintiff’s motion for summary adjudication.