Judge: Teresa A. Beaudet, Case: 21STCV12219, Date: 2023-05-16 Tentative Ruling

Case Number: 21STCV12219    Hearing Date: May 16, 2023    Dept: 50

Superior Court of California

County of Los Angeles

Department 50

Background

On April 1, 2021, Plaintiff Jacqueline Flores (“Plaintiff”) filed this action against Defendants CTI Environmental, Inc. (“CTI”) and Parsons Corporation (jointly, “Defendants”). The Complaint asserts causes of action for (1) discrimination, (2) failure to accommodate, (3) failure to engage in the interactive process, (4) retaliation, (5) failure to prevent discrimination and retaliation, (6) interference with leave under the California Pregnancy Disability Leave Law, and (7) wrongful discharge in violation of public policy.

CTI now moves for “summary adjudication/judgment.” Plaintiff opposes.   

            Request for Judicial Notice

            The Court notes that at page 15:1-10 of CTI’s memorandum of points and authorities in support of the motion, CTI requests that the Court take judicial notice of certain documents.

The Court notes that under ¿California Rules of Court, rule 3.1113, subdivision (l)¿, “[a]ny request for judicial notice must be made in a separate document listing the specific items for which notice is requested and must comply with ¿rule 3.1306(c)¿.” CTI did not file a separate request for judicial notice in connection with the motion. Thus, the request for judicial notice by CTI is denied.¿ 

Evidentiary Objections

            The Court rules on Plaintiff’s evidentiary objections as follows:

            Objection No. 1: sustained. Code of Civil Procedure section 2015.5 “specifies that a declaration must either reveal a ‘place of execution’ within California, or recite that it is made ‘under the laws of the State of California.’” (Kulshrestha v. First Union Commercial Corp. (2004) 33 Cal.4th 601, 606 [emphasis in original].)[1] Above Ms. Thorne’s signature, the declaration provides, “I declare that the foregoing is true and correct pursuant to penalty of perjury.” As CTI notes, this statement does not list a place of execution within California, or provide that the Declaration is certified or declared under the laws of the State of California.

The Court notes that Ms. Thorne’s declaration also provides that “I understand the obligation to tell the truth pursuant to the laws of the United States of America and the State of California and pursuant to penalty of perjury.” (Thorne Decl., ¶ 1.) The Kulshrestha Court noted that “[s]ection 2015.5 seeks to enhance the reliability of all declarations used as hearsay evidence by disclosing the sanction for dishonesty. Thus, the statute requires some acknowledgement on the face of the declaration that perjured statements might trigger prosecution under California law. The Legislature has determined that such knowledge can be inferred from the ‘place of execution’ where the document shows it was signed here…All other declarations, including those signed in other states, must invoke ‘the laws of the State of California.’” (Kulshrestha v. First Union Commercial Corp., supra, 33 Cal.4th at p. 606 [emphasis in original].) However, as discussed, Ms. Thorne states that she “understand[s] the obligation to tell the truth pursuant to the laws of…the State of California,” she does not state that her declaration is “certified or declared under the laws of the State of California,” or that “I certify (or declare) under penalty of perjury under the laws of the State of California that the foregoing is true and correct,” per Code of Civil Procedure section 2015.5.

            Objection No. 2: sustained

            Objection No. 3: sustained

            Objection No. 4: sustained

The Court rules on CTI’s evidentiary objections as follows:

            Objection No. 1: overruled

            Objection No 2: overruled  

Legal Standard

“[A] motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).) “A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs.” (Code Civ. Proc.,       § 437c, subd. (f)(1).) “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Ibid.)  

The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) If the moving party carries this burden, the burden shifts to the opposing party to make a prima facie showing that a triable issue of material fact exists. (Ibid.) 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.) 

When a defendant seeks summary judgment or summary adjudication, he/she must show either (1) that one or more elements of the cause of action cannot be established; or (2) that there is a complete defense to that cause of action. (Code Civ. Proc., § 437c, subd. (p)(2).)

Discussion

A.    Allegations of the Complaint  

In the Complaint, Plaintiff alleges that Defendants were co-employers of Plaintiff. (Compl., ¶ 7.) Plaintiff worked for Defendants from February 17, 2020 to October 23,

2020 as an Office Administrator. (Compl., ¶ 8.)

Plaintiff alleges that in or about May 2020, Plaintiff “told Ashley Amaya, and payroll representative, Maricela Raya, that she was pregnant. In addition to telling Ms. Amaya and     Ms. Raya about her pregnancy, [Plaintiff] told the CEO of CTI, Robin Thorne, and her assistant, Nzingha Bryant, that she was pregnant and that her due date was expected to be October 25, 2020.” (Compl., ¶ 11.) “On September 21, 2020, [Plaintiff] informed Ms. Amaya of her need to take time off work to have her baby starting October 19, 2020.” (Compl., ¶ 13.)

Plaintiff alleges that “[o]n or about October 9, 2020, a virtual meeting took place.        Ms. Thorne informed [Plaintiff] that she was the first employee she employed who needed maternity leave. Ms. Thorne told [Plaintiff] that someone from Human Resources would contact her to explain PARSON’s leave policies, yet nobody ever contacted [Plaintiff] regarding her pregnancy leave.” (Compl., ¶ 15.) “On October 19, 2020, Ms. Thorne told [Plaintiff] that her position had been eliminated.” (Compl., ¶ 16.)

B.    Procedural Issues

As an initial matter, as noted by Plaintiff, CTI’s notice of motion does not indicate that CTI moves for summary adjudication as to any particular cause(s) of action or issue(s). CTI’s separate statement also does not indicate that CTI moves for summary adjudication. Rather, CTI’s separate statement lists the following heading: “DEFENDANT, CTI ENVIRONMENTAL INC., SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF SUMMARY JUDGMENT.” (CTI’s separate statement at p. 2:3-6, emphasis omitted.)

The Court notes that pursuant to California Rules of Court, Rule 3.1350, subdivision (b), “[i]f made in the alternative, a motion for summary adjudication may make reference to and depend on the same evidence submitted in support of the summary judgment motion. If summary adjudication is sought, whether separately or as an alternative to the motion for summary judgment, the specific cause of action, affirmative defense, claims for damages, or issues of duty must be stated specifically in the notice of motion and be repeated, verbatim, in the separate statement of undisputed material facts.” (Emphasis added.)

In addition, Plaintiff cites to Homestead Sav. v. Superior Court (1986) 179 Cal.App.3d 494, 496, where the “[p]etitioner successfully resisted a motion to summarily adjudicate issues connected with its defense of a lawsuit arising out of real estate transactions. However, the trial court’s order adjudicated against petitioner certain subissues not specifically targeted by the motion for summary adjudication.” The Court of Appeal “conclude[d] that the court abused its discretion in adjudicating issues not specified in the motion.” (Ibid.)

The Homestead Court noted that “[p]etitioner points to discussion by Judges Robert Weil and Ira Brown, Jr., in their treatise Civil Procedure Before Trial (1985) addressing the related problem of ruling on a summary judgment motion which does not also seek summary adjudication of issues: ‘The moving party may argue that he should be entitled to a summary adjudication order on the remaining issues in the case as to which no ‘triable issue’ was raised. But such relief will not be granted unless requested in the notice of motion…The reason, of course, is that the opposing party may have decided to raise only one triable issue of fact in order to defeat the motion, without intending to concede the other issues. It would be unfair to grant a summary adjudication order unless the opposing party was on notice that an issue-by-issue adjudication might be ordered if summary judgment was denied.’” (Homestead Sav. v. Superior Court, supra, 179 Cal.App.3d at pp. 497-498 [emphasis in original].)

Plaintiff thus asserts that “if a single issue of fact is found as to any of the causes of action herein, the motion as a whole must be denied.” (Opp’n at p. 14:12-13.) In the reply, CTI does not address this point or dispute that her notice of motion does not seek summary adjudication.   

C.    First Cause of Action for Discrimination  

In support of her first cause of action for discrimination, Plaintiff alleges that Defendants “discriminated against her based on her sex (pregnancy) in violation of Government Code sections 12940(a) and 12945.” (Compl., ¶ 21.)

“It is an unlawful employment practice . . . (a) [f]or an employer, because of the . . . race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or veteran or military status of any person, to refuse to hire or employ the person . . . or to bar or to discharge the person from employment . . . or to discriminate against the person in compensation or in terms, conditions, or privileges of employment.” (Gov. Code,   § 12940, subd. (a).)

California applies the burden-shifting formula set forth in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 802,[2] under which a plaintiff must first establish a prima facie case of discrimination by showing that: (1) he or she was a member of a protected class, (2) he or she was qualified for and performing competently in the position he or she held, (3) he or she suffered an adverse employment action, and (4) conduct by the employer suggesting that it is more likely than not that the adverse employment action was due to a discriminatory motive. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 355.) If the plaintiff establishes a prima facie case, the burden shifts to the employer to rebut the presumption of discrimination by offering a legitimate nondiscriminatory reason for the adverse employment action. (Ibid.) If the employer meets this burden, the presumption of discrimination disappears, and the burden shifts back to the plaintiff to produce evidence that the employer’s reasons for the adverse employment action were a mere pretext for discrimination. (Id. at p. 356.)  

In the motion, CTI asserts that there is “undisputed evidence of legitimate, nondiscriminatory reasons for plaintiff’s termination.” (Mot. at p. 6:8-9.) In support of this assertion, CTI states that “[t]he reduction of the Parson’s contract from three staffers to two staffers was completely unrelated to the Plaintiff’s pregnancy and Defendant CTI is entitled to summary adjudication on this cause of action.” (Mot. at p. 8:1-3.) The Court notes that CTI’s memorandum of points and authorities in support of the motion does not cite to any evidence. Thus, it is unclear what specific evidence CTI is relying on in support of the foregoing assertion.

It appears CTI could be relying on Ms. Thorne’s statement in her Declaration that “[o]n October 19, 2020, Parsons informed [her] that the CTI staffing augmentation contract was being reduced to the Senior Scheduler and the Document Controls positions and the Administrative Assistants position was being eliminated effective October 23, 2020. Jacqueline Flores was not qualified for the Senior Scheduler position; nor, the Document Controls position.” (Thorne Decl., ¶ 14.) Ms. Thorne states that “CTI has a staffing augmentation contract with Parsons for its construction projects. CTI has had this contract with Parsons since 2017. One of those construction projects is the I-405 Improvements project.” (Thorne Decl., ¶ 3.) Ms. Thorne also states that Plaintiff “was hired on February 17, 2020, specifically for the Parsons I-405 Improvements project as an Administrative Assistant under the contract that Parsons has with CTI for staffing augmentation.” (Thorne Decl., ¶ 6.)

As set forth above, the Court sustains Plaintiff’s evidentiary objection to the Declaration of Robin Thorne. However, even if Ms. Thorne’s declaration was sufficient under Code of Civil Procedure section 2015.5, the Court still finds that Plaintiff has raised a triable issue of fact as to her first causes of action, as discussed in further detail below.

In the opposition, Plaintiff asserts that the evidence indicates the proffered reason for her termination was pretextual.

Plaintiff provides evidence that on September 21, 2020, Plaintiff sent a message to Ashley Amaya indicating, inter alia, that “I did talk to my doctor and she said I should start expecting to take my time off on the 19th of October.” (Panitz Decl., ¶ 3, Ex. E (Flores Depo.) at p. 216:6-22; Panitz Decl., ¶ 11, Ex. 15.) In the Complaint, Plaintiff alleges that her “job duties in the administration department included processing subcontracts, filing, ordering supplies, and assisting Ashley Amaya with subcontracts.” (Compl., ¶ 9.)

Plaintiff also cites to the following testimony from her deposition: “Q. Okay. So outside of Maricela, Robin, Nzingha, you didn’t discuss your pregnancy with anyone else; is that correct? A. I didn’t, no. Q. Okay, so you didn’t discuss it with Jay Gabrielson, Mike Siboney, or – that’s it; correct? A. Ashley said she’d let them know. I mean, Ashley said she’d let them know. Q. Who know? A. Let Mike and Jay know that I was pregnant…” (Panitz Decl., ¶ 3, Ex. E (Flores Depo.) at p. 204:3-13.) Ms. Amaya testified that she reported to Jay Gabrielson since roughly September of 2020. (Panitz Decl., ¶ 6, Ex. H (Amaya Depo.) at p. 38:5-13.)

Plaintiff provides evidence that on September 25, 2020, Mr. Gabrielson sent an email to Ms. Amaya indicating, inter alia, “[a]s I become familiar with everyone’s duties, tasks and responsibilities, I would like you to provide a task list that you perform on the project that shows the routine tasks (and how routine), special tasks and any other items that you can think of. I would also need a similar list for Jacque. Essentially, need to know what staff does each day, or throughout the week so I can review and have available when asked by OCTA.” (Panitz Decl.,   ¶ 24, Ex. 71.) Ms. Amaya provided task lists on September 25, 2020, and Mr. Gabrielson sent an October 14, 2020 email to Ms. Amaya indicating, inter alia, “I am a little concerned related Jackie’s tasks so maybe you can review a little further since all of the tasks listed are things that are done in the office so I am a little unsure what she has been doing for the past 7 months each day.” (Ibid.) Ms. Amaya responded on October 14, 2020, indicating, inter alia, that “[t]here’s been a few issues with Jackie’s performance in the past months…” (Ibid.)  

Plaintiff also indicates that Mr. Gabrielson testified that there were 90 employees on the project, as a best estimate, at or about the time Mr. Gabrielson took over as project manager. (Panitz Decl., ¶ 8, Ex. J (Gabrielson Depo.) at p. 77:4-10.) Mr. Gabrielson was asked in his deposition, “Q...can you recall sending an email, writing a text, sending a Teams message to any of the other 90 employees asking for a list of their -- their duties, routine tasks or special tasks? A. No.” (Id. at p. 78:20-25.)

Plaintiff asserts that it is “suspicious” that “the only email asking for a list of duties was sent only regarding the pregnant employee, and the “other 89 employees were ignored.” (Opp’n. at p. 8:24-25.) Plaintiff also notes that Mr. Gabrielson’s September 25, 2020 email to Ms. Amaya was sent only four days after Plaintiff informed Ms. Amaya on September 21, 2020 that her maternity leave would begin on or around October 19, 2020.  Plaintiff asserts that “[t]his ‘coincidence’ raises a reasonable inference that the [September 25, 2020 email from                Mr. Gabrielson] was, in fact, merely a pretext to justify [Plaintiff’s] termination.” (Opp’n. at             p. 9:1-2.)

Based on the foregoing, the¿Court finds that Plaintiff has raised a triable issue of fact as to whether the proffered reason for Plaintiff’s termination was pretextual. As discussed above, “[w]hen the notice of motion seeks only summary judgment, the presence of any triable issue requires denial of the motion. The court may not summarily adjudicate claims or defenses as to which no triable issue was raised unless requested in the notice of motion.” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2022) ¶ 10:88, emphasis in original, citing Homestead Sav. v. Superior Court, supra, 179 Cal.App.3d at p. 498.) As discussed, CTI does not request that the Court summarily adjudicate any claims in its notice of motion. In addition, even if Ms. Thorne’s declaration was sufficient under Code of Civil Procedure section 2015.5, the Court still finds that Plaintiff has raised a triable issue of fact as to her first causes of action. Accordingly, CTI’s motion for summary judgment is denied.

Conclusion

For the foregoing reasons, CTI’s motion for summary judgment is denied.

Plaintiff is ordered to provide notice of this Order.

DATED:  May 16, 2023                                 ________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court