Judge Stephen P. Pfahler, Case Number: 21STCV28139, Date: 2024-05-16 Tentative Ruling

Judge: Stephen P. Pfahler, Case: 21STCV28139, Date: 2024-05-16 Tentative Ruling

Case Number: 21STCV28139 Hearing Date: May 16, 2024 Dept: 68

Dept. 68

Date: 5-16-24

Case # 21STCV28139

Trial Date: 6-10-24

SUMMARY JUDGMENT

MOVING PARTY: Defendant, County of Los Angeles

RESPONDING PARTY: Plaintiff, Carla Rice

RELIEF REQUESTED

Motion for Summary Judgment/Summary Adjudication

· 1^st Cause of Action: Discrimination in Violation of Government Code 12940, et seq.

· 2^nd Cause of Action: Harassment in Violation of Government Code 12940, et seq.

· 3^rd Cause of Action: Retaliation in Violation of Government Code 12940, et seq.

· 4^th Cause of Action: Failure to Provide Reasonable Accommodation in Violation of Government Code 12940, et seq.

· 5^th Cause of Action: Failure to Engage in a Good Faith Interactive Process in Violation of Government Code 12940, et seq.

· 6^th Cause of Action: Failure to Prevent Discrimination, Harassment and Retaliation in Violation of Government Code 12940, et seq.

· 7^th Cause of Action: Declaratory Judgment

SUMMARY OF ACTION

Plaintiff Carla Rice commenced employment with County of Los Angeles Department of Health Services on December 2, 20219, as a Staff Analyst, and was terminated on May 28, 2020. Plaintiff alleges requests for accommodation for “disabilities,” which required “time off for doctors appointments, leave, teleworking, and a flexible schedule,” but was instead met with a “hostile work environment” arising from alleged sexual, gender and disability discriminatory motivation. County employee, defendant Joshua Legere, allegedly made a number of disparaging remarks, referring to women as “useless” “bitches,” or “nasty bitches,” and accusing Plaintiff of faking her disability and forging her doctors’ note, which Plaintiff interprets as the basis of the wrongful motives.

On July 30, 2021, Plaintiff filed a complaint for 1. Discrimination in Violation of Gov’t Code §§12940 et seq.; 2. Harassment in Violation of Gov’t Code §§12940 et seq.; 3. Retaliation in Violation of Gov’t Code §§12940 et seq.; 4. Failure Provide Reasonable Accommodation in Violation of Gov’t Code §§12940 et seq.; 5. Failure to Engage in a Good Faith Interactive Process In Violation of Gov’t Code §§12940 et seq.; 6. Failure to Prevent Discrimination, Harassment, and Retaliation in Violation of Gov’t Code §12940(K); and 7. Declaratory Judgment. County of Los Angeles answered the complaint on November 29, 2021. Legere answered the complaint on August 5, 2022.

RULING : Denied.

Request for Judicial Notice: Granted.

Evidentiary Objections of Plaintiff: Sustained in Part/Overruled in Part

· Inadmissible Declaration under Code of Civil Procedure section 2015.5: Sustained.

· Objections on hearsay, foundation, authentication, conclusory, best evidence rule, secondary evidence rule, argumentative, and relevance: Overruled.

· Hearsay objection in evidentiary objection numbers 1, 4, 47-48, 52: Overruled.

· Hearsay objection in evidentiary objection number 20: Sustained.

Response to Seaprate Statement/215 Evidentiary Objections: Overruled.

· The evidentiary objections are improperly formatted in violation of California Rules of Court, rule 3.1354.

Defendant County of Los Angeles (County) moves for summary judgment/summary adjudication on the entire complaint for 1. Discrimination in Violation of Gov’t Code §§12940 et seq.; 2. Harassment in Violation of Gov’t Code §§12940 et seq.; 3. Retaliation in Violation of Gov’t Code §§12940 et seq.; 4. Failure Provide Reasonable Accommodation in Violation of Gov’t Code §§12940 et seq.; 5. Failure to Engage in a Good Faith Interactive Process In Violation of Gov’t Code §§12940 et seq.; 6. Failure to Prevent Discrimination, Harassment, and Retaliation in Violation of Gov’t Code §12940(K); and 7. Declaratory Judgment. County moves for summary judgment/summary adjudication on grounds of a lack of evidence supporting any and all causes of action.

The subject motion falls inside the 30-day period preceding the trial date, due to the court entered stipulation of the parties. (Code Civ. Proc., § 437c, subd. (a)(3).) The court therefore considers the motion based on the special setting stipulation.

The pleadings frame the issues for motions, “since it is those allegations to which the motion must respond. (Citation.)” (Scolinos v. Kolts (1995) 37 Cal. App. 4^th 635, 640-641; FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 382-383; Jordan-Lyon Prods., LTD. v. Cineplex Odeon Corp. (1994) 29 Cal.App.4^th 1459, 1472.) The purpose of a motion for summary judgment or summary adjudication “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atl. Richfield Co. (2001) 25 Cal.4^th 826, 843.) “Code of Civil Procedure section 437c, subdivision ©, 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.4^th 1110, 1119.)

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” (Scalf v. D.B. Log Homes, Inc. (2005) 128 Cal.App.4^th 1510, 1519.) A defendant moving for summary judgment “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established.” (Code Civ. Proc., § 437c, subd. (p)(2).) “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 the cause of action or a defense thereto.” (Ibid.)

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inference that may be drawn form that evidence, in the light most favorable to the party opposing summary judgment.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4^th 463, 467; see also Code Civ. Proc., § 437c, subd. ©.) “An issue of fact can only be created by a conflict in the evidence. It is not created by speculation, conjecture, imagination or guesswork.” (Lyons v. Security Pacific National Bank (1995) 40 Cal.App.4^th 1001, 1041 (citation omitted).)

County contends that the complaint only consists of Plaintiff Rice describing allegedly harassing conduct, and otherwise lacks factual support. The cause of termination was Plaintiff’s own violation of the telework policy and agreement. Plaintiff in a one-day late opposition challenges the evidentiary support to the motion, and challenges the sufficiency of the evidence to the extent any such evidence remains considered in the instant motion. (While the court accepts the late opposition under the circumstances, the court will not generally accept stipulations shortening statutory deadlines.) County in reply challenges the late filed opposition. County next contends that Plaintiff fails to submit any evidence in support of discrimination, harassment, or pretextual termination. County maintains the “inability” to accommodate was the result of the failure to submit sufficient medical documentation rather than any wrongful conduct.

The court addresses the material impact of the evidentiary objections as to the sufficiency of the declarations. “Whenever, under any law of this state or under any rule, regulation, order or requirement made pursuant to the law of this state, any matter is required or permitted to be supported, evidenced, established, or proved by the sworn statement, declaration, verification, certificate, oath, or affidavit, in writing of the person making the same (other than a deposition, or an oath of office, or an oath required to be taken before a specified official other than a notary public), such matter may with like force and effect be supported, evidenced, established or proved by the unsworn statement, declaration, verification, or certificate, in writing of such person which recites that it is certified or declared by him or her to be true under penalty of perjury, is subscribed by him or her, and (1), if executed within this state, states the date and place of execution, or (2), if executed at any place, within or without this state, states the date of execution and that it is so certified or declared under the laws of the State of California.” (Code Civ. Proc., § 2015.5.)

The declarations of Joshua Legere, Leepi Shimkhada, and Jessica Neighbors, lack any indication of the execution within the state of California, or a location outside of California, yet in compliance with California law. The declarations are therefore in violation of Code of Civil Procedure section 2015.5, and cannot be presented as evidence in support of the motion for summary adjudication. (Kulshrestha v. First Union Commercial Corp. (2004) 33 Cal.4th 601, 618.) The court otherwise finds the witnesses and counsel qualified to testify. (Roy Brothers Drilling Co. v. Jones (1981) 123 Cal.App.3d 175, 182.)

The separate statement in support of the motion provides limited citation to certain sources of the purported undisputed statements, with only three identified sources—the declaration of Joshua Legere, “County Production Bate Numbers...” and “Supplemental County Production Bate Numbers ...” (Cal. Rules Ct., rule 3.1350(d)(3).) The purpose of the separate statement is to apprize all parties of the issues and to permit the trial court to determine the existence of disputed facts. (Parkview Villas Assn., Inc. v. State Farm Fire & Casualty Co. (2005) 133 Cal.App.4th 1197, 1210.) The motion itself contains declarations from Joshua Legere, Leepi Shimkhada, and attorney Jessica Neighbors, though the separate statement only references Legere and incorporates by reference the Neighbors declaration by Bates numbers. The Bates stamped documents are not presented in order, and the court cannot locate certain items listed in the separate statement. The court declines to search through the voluminous exhibits for documents that may or may not be incorporated simply by number alone on behalf of County.

County made no attempt to correct the declarations following the submission of the objections. The court therefore need not consider any prejudice to Plaintiff in responding to any subsequently corrected declarations. (Wall Street Network, Ltd. v. New York Times Co. (2008) 164 Cal.App.4th 1171, 1182-1183; Plenger v. Alza Corp. (1992) 11 Cal.App.4th 349, 362 (footnote 8); Weiss v. Chevron, U.S.A., Inc. (1988) 204 Cal.App.3d 1094, 1098.)..

The court finds the defective separate statement and inadmissible declarations precludes the consideration of any and all relied upon evidence, and therefore a finding of a failure to shift the burden as part of a motion for summary judgment/summary adjudication. (Code Civ. Proc., § 437c, subd. (d), (p)(2).) The motion for summary judgment and summary adjudication is therefore denied on this basis.

Even if the court considered the declarations, the court alternatively finds triable issues of material fact. The court addresses the individual claims.

1^st Cause of Action: Discrimination in Violation of Government Code 12940, et seq.

2^nd Cause of Action: Harassment in Violation of Government Code 12940, et seq.

3^rd Cause of Action: Retaliation in Violation of Government Code 12940, et seq.

6^th Cause of Action: Failure to Prevent Discrimination, Harassment and Retaliation in Violation of Government Code 12940, et seq.

Assuming the court considers the actual presented declarations and certain content, the court is presented with a challenge to the claims for harassment on grounds of sex/gender and disabilities/perceived disabilities, to prevent discrimination on the basis of sex/gender and disabilities/perceived disabilities, and retaliation for engagement in protected activities. [Comp., ¶¶ 27, 38, 48, 52, 59.] Legere presents a very factually descriptive challenge.

Legere represents Plaintiff was terminated as a result of poor work performance during the probationary period for the first six months of employment. Legere documents the following course of action. On December 5, 2019, three days after commencing employment, Plaintiff failed to appear for work. Plaintiff insisted on working from home via telecommuting on a non-assigned telework day, and without approval of any supervisor. On December 13, 2019, Plaintiff again failed to appear for work without notice, and again expressed intention to telework without approval. On December 16, 2019, the telework policy was cancelled for all staff members of the unit. Plaintiff left work early on December 18, 2019, and proceeded to telework notwithstanding the cancellation of the policy. On February 7, 10, 11, and 12, 2020, Plaintiff was absent without excuse, and proceeded to telework four of the six days. On February 13, 2020, Legere and supervisor Shimkhada met with Plaintiff regarding unexcused absences and the cancellation of the telecommuting policy. Plaintiff left work early on February 18, 2020, and failed to appear at all on February 20, 2020, again only telecommuting. For the time period of February 1 through February 20, 2020, Plaintiff submitted a falsified timecard maintaining full workdays. Plaintiff then represented sending e-mails requesting approval, none of which were located by any e-mail server. [Declaration of Joshua Legere.]

At the time of the six-month review period at the end of the probationary period, Legere gave Plaintiff an “Unsatisfactory” performance evaluation. In addition to the absences, the evaluation further noted that Plaintiff failed to complete substantive number of requirements for a certain assigned work project. [Leger Decl., Ex. N.] Program Implementation Manager of the Housing for Health Program Leepi Shimkhada confirms the lack of permission for telecommuting work on the operative dates identified by Legere. [Declaration of Leepi Shimkhada.] Plaintiff was purportedly offered noise cancelling headphones and/or a voluntarily transfer to another position, both of which were rejected. Plaintiff then requested a service animal. County again requested medical documentation, which was never provided. [Declaration of Jessica Neighbors, Ex. A & Ex. B: Deposition of Carla Rice.]

On the failure to accommodate claim, the County of Los Angeles maintains work coordinator, Alicia Maravilla, requested a medical note supporting the requested accommodation. On February 24, 2020, Plaintiff provided a note from Lindsay O’Shea, PhD, a psychotherapist, describing symptoms and attendance for treatment, but also lacking any specific requested accommodations or restrictions. [Neighbors Decl., Ex. A.]

A subsequent investigation of the probationary period by Civil Service Representative Sonia Gutierrez recommended termination of Plaintiff for violation of numerous county policies. The recommendation was approved, and Plaintiff was terminated from employment on May 28, 2020 for all documented reasons: 1) Plaintiff failed to notify her supervisors regarding her absences and had unscheduled absences on February 18 and 19, 2020, for which Plaintiff falsified an email from Mr. Legere; 2) Plaintiff did not attend work at her assigned work location and teleworked without prior authorization on December 5, 2019; 3) Plaintiff did not attend work at her assigned work location and teleworked without prior authorization on December 13, 2019; 4) Plaintiff refused to follow supervisor instructions and teleworked on December 18, 2019 without prior authorization; 5) Plaintiff refused to follow supervisor instructions and had unscheduled absences between February 6-10, 2019; and 6) Plaintiff had an unscheduled absence, refused to follow supervisor instruction, and teleworked without authorization on February 11 and 12, 2020; and, 7) Plaintiff falsified timecards. [Neighbors Decl., Ex. F: Deposition of Sonia Gutierrez.]

Legere challenges the purported statements both alleged in the operative complaint and in discovery, whereby Legere purported referred to female employees as “1) bitches; 2.) hacks; 3.) cunts; and 4.) useless.” Plaintiff additionally maintains the following statements regarding other women in in the office, but not necessarily directed at Plaintiff: “She is a grifter and her husband is a worthless cuck. She is dependent on DHS’ money because he [her husband] has one foot in the grave. He was a big shot in radio now she’s the breadwinner haha. Have you been to her office? She is a total hack, a grifter. We should not have a contract with that crazy bitch, I’ve been telling the higher ups for years.” “I hope you’re here to work because if I have to sit next to one more worthless woman yapping on the phone and shopping all day I am going to lose my shit.” “She is only here because we are stuck with her over a bullshit workman’s comp. claim. She leaves for hours everyday and shops. She’s worthless.” “How can you stand walking in their office? It’s mindboggling. Vicki has food piled to the ceiling and all they do is complain all day. Eat and complain. Eat and complain. The hen house haha.” “Those women sit around and look for reasons to throw parties and here you are with a cupcake. What’s today’s celebration? Are you going to eat that?” Finally, direct comments made to Plaintiff, include: “Why are you wearing high heels to work? Are you not aware of your surroundings? We work on skid row and literally walk in shit every day. Ridiculous.” Plaintiff also maintains that Legere accused Plaintiff of “faking” any and all claimed disability and forged the doctor’s(’s) note(s). Finally described Plaintiff as “unfit, crazy and useless.” The comments were repeated every week. Even conceding to the potential veracity of the statements, Legere still maintains a lack of evidence establishing a direct nexus between the purported statements and the employment termination at the end of the probationary period. [Legere Decl.]

“The specific elements of a prima facie case [for discrimination] may vary depending on the particular facts. (Citation) Generally, the plaintiff must provide evidence that (1) [s]he was a member of a protected class, (2) [s]he was qualified for the position he sought or was performing competently in the position he held, (3) [s]he suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some other circumstance suggests discriminatory motive.” (Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 355.) “Harassment claims are based on a type of conduct that is avoidable and unnecessary to job performance. No supervisory employee needs to use slurs or derogatory drawings, to physically interfere with freedom of movement, to engage in unwanted sexual advances, etc., in order to carry out the legitimate objectives of personnel management.” (Reno v. Baird (1998) 18 Cal.4th 640, 646.) “‘Workplace harassment between opposite genders, including words with sexual content or connotations, does not automatically establish sexual discrimination.

“‘[W]orkplace harassment, even harassment between men and women, is [not] automatically discrimination because of sex merely because the words used have sexual content or connotations.’ (Citation.) Rather, ‘”[t]he critical issue ... is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.”’ (Citations).) This means a plaintiff in a sexual harassment suit must show ‘the conduct at issue was not merely tinged with offensive sexual connotations, but actually constituted “discrimina [tion ] ... because of ... sex.”’” (Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 279–280.)

Disability discrimination requires a plaintiff show she “(1) suffered from a disability, (2) could perform the essential duties of a job with or without reasonable accommodation, and (3) was subjected to an adverse employment action because of the disability or perceived disability. (Citation.) To establish a prima facie case, the employee must show ‘actions taken by the employer from which one can infer, if such actions remain unexplained, that it is more likely than not that such actions were “based on a [prohibited] discriminatory criterion ....”’ (Citation.) The employee's burden of proving a prima facie case is not onerous, and very little evidence is required at this step.” (Zamora v. Security Industry Specialists, Inc. (2021) 71 Cal.App.5th 1, 37 [internal quotation marks omitted].)

“To establish a prima facie case of retaliation, a plaintiff must show that she engaged in a protected activity, that she was thereafter subjected to adverse employment action by her employer, and there was a causal link between the two.” (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 614.) “[C]ourts considering the question of what constitutes an adverse employment action for purposes of a statutory retaliation claim have uniformly held an intermediate retaliatory employment action may suffice: ‘The legislative purpose underlying FEHA's prohibition against retaliation is to prevent employers from deterring employees from asserting good faith discrimination complaints, and the use of intermediate retaliatory actions may certainly have this effect.’ (Citations.) However, courts also have been united in the view that an employer's intermediate decision or action ‘constitutes actionable retaliation only if it had a substantial and material adverse effect on the terms and conditions of the plaintiff's employment.’ (Citations.)” (Pinero v. Specialty Restaurants Corp. (2005) 130 Cal.App.4th 635, 641.) A pattern of conduct, rather than a single incident can support a finding of adverse employment. (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1056.)

The declaration of Legere and deposition of Rice directly contradict each other in terms of alleged comments marginalizing emotional, functional state of female employees. The court as a matter of law cannot weigh the credibility of the evidence. The court finds the evidence supports the existence of triable issues of material fact on the existence of harassment, retaliation, and discrimination on the basis of gender in this context.

4^th Cause of Action: Failure to Provide Reasonable Accommodation in Violation of Government Code 12940, et seq.

5^th Cause of Action: Failure to Engage in a Good Faith Interactive Process in Violation of Government Code 12940, et seq.

The court also finds the deposition of Rice specifically represents both notifying and engaging the interactive process regarding certain psychological trauma and the requirement for accommodation. Plaintiff in fact provided medical records. Plaintiff maintains the only option presented was a transfer from the unit possibly following the rejection of use/further use of the noise cancelling headphones. Plaintiff maintains the ability to perform all job duties otherwise, and requested a telecommuting accommodation in order to avoid the environment created at the office and resulting stress. Plaintiff also denies any reasonable consideration of the service animal request. The court therefore finds triable issues of material fact on the failure to accommodate claims as well.

7^th Cause of Action: Declaratory Judgment

To the extent the motion relies on undermining the claims in the preceding causes of action, the court also finds triable issues of material fact in the instant cause of action.

The court therefore denies the motion for summary judgment/summary adjudication in its entirety.

County to give notice.

Dept. 68

Date: 5-16-24

Case # 21STCV28139

Trial Date: 6-10-24

SUMMARY JUDGMENT

MOVING PARTY: Defendant, Joshua Legere

RESPONDING PARTY: Plaintiff, Carla Rice

RELIEF REQUESTED

Motion for Summary Judgment/Summary Adjudication

· 2^nd Cause of Action: Harassment in Violation of Government Code 12940, et seq.

SUMMARY OF ACTION

RULING : Denied.

Request for Judicial Notice: Granted.

Evidentiary Objections: Sustained in Part/Overruled in Part

· Inadmissible Declaration under Code of Civil Procedure section 2015.5: Sustained.

· Objections on hearsay, foundation, authentication, conclusory, best evidence rule, secondary evidence rule, argumentative, and relevance: Overruled.

· Hearsay objection in evidentiary objection number 1: Overruled.

· Hearsay objection in evidentiary objection numbers 20, 48: Sustained.

Defendant Joshua Legere moves for summary judgment/summary adjudication on the second cause of action for Harassment in Violation of Gov’t Code §§12940 et seq. Leger is only named in the subject cause of action. Legere moves for summary judgment/summary adjudication on grounds of a lack of evidence supporting any harassment on the basis of gender or disability.

The pleadings frame the issues for motions, “since it is those allegations to which the motion must respond. (Citation.)” (Scolinos v. Kolts (1995) 37 Cal. App. 4th 635, 640-641; FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 382-383; Jordan-Lyon Prods., LTD. v. Cineplex Odeon Corp. (1994) 29 Cal.App.4th 1459, 1472.) The purpose of a motion for summary judgment or summary adjudication “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atl. Richfield Co. (2001) 25 Cal.4th 826, 843.) “Code of Civil Procedure section 437c, subdivision (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.)

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” (Scalf v. D.B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant moving for summary judgment “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established.” (Code Civ. Proc., § 437c, subd. (p)(2).) “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 the cause of action or a defense thereto.” (Ibid.)

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inference that may be drawn form that evidence, in the light most favorable to the party opposing summary judgment.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467; see also Code Civ. Proc., § 437c, subd. (c).) “An issue of fact can only be created by a conflict in the evidence. It is not created by speculation, conjecture, imagination or guesswork.” (Lyons v. Security Pacific National Bank (1995) 40 Cal.App.4th 1001, 1041 (citation omitted).)

Legere contends that the instant cause of action only consists of Plaintiff Rice describing allegedly harassing conduct, and otherwise lacks factual support. The cause of termination was Plaintiff’s own violation of the telework policy and agreement. Plaintiff in a one-day late opposition challenges the evidentiary support to the motion, and challenges the sufficiency of the evidence to the extent any such evidence remains considered in the instant motion. (While the court accepts the late opposition under the circumstances, the court will not generally accept stipulations shortening statutory deadlines.) County in reply challenges the late filed opposition. County next contends that Plaintiff fails to submit any evidence in support of discrimination, harassment, or pretextual termination. County maintains the “inability” to accommodate was the result of the failure to submit sufficient medical documentation rather than any wrongful conduct.

The court addresses the material impact of the evidentiary objections. “Whenever, under any law of this state or under any rule, regulation, order or requirement made pursuant to the law of this state, any matter is required or permitted to be supported, evidenced, established, or proved by the sworn statement, declaration, verification, certificate, oath, or affidavit, in writing of the person making the same (other than a deposition, or an oath of office, or an oath required to be taken before a specified official other than a notary public), such matter may with like force and effect be supported, evidenced, established or proved by the unsworn statement, declaration, verification, or certificate, in writing of such person which recites that it is certified or declared by him or her to be true under penalty of perjury, is subscribed by him or her, and (1), if executed within this state, states the date and place of execution, or (2), if executed at any place, within or without this state, states the date of execution and that it is so certified or declared under the laws of the State of California.” (Code Civ. Proc., § 2015.5.)

The separate statement in support of the motion also lacks any citation to the source of the purported undisputed statements. (Cal. Rules Ct., rule 3.1350(d)(3).) The purpose of the separate statement is to apprize all parties of the issues and to permit the trial court to determine the existence of disputed facts. (Parkview Villas Assn., Inc. v. State Farm Fire & Casualty Co. (2005) 133 Cal.App.4th 1197, 1210.)

Even if the court considered the declarations, however, the court alternatively finds triable issues of material fact. The court addresses the individual claim.

2^nd Cause of Action: Harassment in Violation of Government Code 12940, et seq.

Assuming the court considers the actual presented declarations and certain content, the court is presented with a challenge to the claims for harassment on grounds of “sex/gender, disability/perceived disability, and engagement in protected activities.” [Comp., ¶ 38.] Legere presents a very factually descriptive challenge.

At the time of the six-month review period at the end of the probationary period, Legere gave Plaintiff an “Unsatisfactory” performance evaluation. In addition to the absences, the evaluation further noted that Plaintiff failed to complete substantive number of requirements for a certain assigned work project. [Leger Decl., Ex. N.] In subsequent deposition, Plaintiff admitted to no work restrictions and only requested teleworking possibly due to office noise levels. Plaintiff was in fact offered noise cancelling headphones and/or a voluntarily transfer to another position, both of which were rejected. Plaintiff then requested a service animal. County again requested medical documentation, which was never provided. [Declaration of Jessica Neighbors, Ex. B: Deposition of Carla Rice.]

On the failure to accommodate claim, the County of Los Angeles maintains work coordinator, Alicia Maravilla, requested a medical note supporting the requested accommodation. Plaintiff sent e-mails regarding purported visits to a medical provider on December 23, 2019, and January 9, 2020, without any further address of required accommodation. On February 24, 2020, Plaintiff provided a note from Lindsay O’Shea, PhD, a psychotherapist, describing the basis of treatment, but again lacking any requested accommodations or restrictions. Nothing in the separate statement presents the location of this evidence. Even considering the reference in the opposing separate statement which identifies the deposition of Maravilla as the source of the representation, no declaration from Defendant apparently incorporates any such deposition.

“The specific elements of a prima facie case [for discrimination] may vary depending on the particular facts. (Citation) Generally, the plaintiff must provide evidence that (1) [s]he was a member of a protected class, (2) [s]he was qualified for the position he sought or was performing competently in the position he held, (3) [s]he suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some other circumstance suggests discriminatory motive.” (Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 355.) “‘Workplace harassment between opposite genders, including words with sexual content or connotations, does not automatically establish sexual discrimination. “‘[W]orkplace harassment, even harassment between men and women, is [not] automatically discrimination because of sex merely because the words used have sexual content or connotations.’ (Citatino.) Rather, ‘”[t]he critical issue ... is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.”’ (Citations).) This means a plaintiff in a sexual harassment suit must show ‘the conduct at issue was not merely tinged with offensive sexual connotations, but actually constituted “discrimina [tion ] ... because of ... sex.”’” (Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 279–280.)

The deposition of Rice specifically represents both notifying and engaging the interactive process regarding certain psychological trauma and the requirement for accommodation. Plaintiff in fact provided medical records. Plaintiff maintains the only option presented was a transfer from the unit. Plaintiff maintains the ability to perform all job duties otherwise, and requested a telecommuting accommodation in order to avoid the environment created at the office and resulting stress. Plaintiff also denies any reasonable consideration of the service animal request.

The court declines to find as a matter of law that the interactive process was sufficient and Plaintiff reasonably accommodated for purposes of the summary judgment, and Plaintiff was only terminated as a result of workplace rule violations. (Zamora v. Security Industry Specialists, Inc. (2021) 71 Cal.App.5th at pp. 54-55.) The tangled claims and lack of clarity in the motion also renders triable issues of material fact on the gender discrimination claim. The court therefore denies the motion for summary judgment/summary adjudication on the disability and gender discrimination claims, though given both claims are pled within the same cause of action, the court only need address one of the two claims to deny the motion.

Legere to give notice.