Judge Teresa A. Beaudet, Case Number: 21STCV38730, Date: 2023-10-12 Tentative Ruling

JOHN CHOU, Plaintiff, vs. AIR TIGER EXPRESS (USA) INC., et al., Defendants.	Case No.:	21STCV38730
	Hearing Date:	April 8, 2024
	Hearing Time:	2:00 p.m.
	[TENTATIVE] ORDER RE: DEFENDANTS AIR TIGER EXPRESS (USA) INC. AND MATHEW TRAN’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION

Plaintiff John Chou (“Plaintiff”) filed this action on October 20, 2021 against Defendants Air Tiger Express (USA) Inc. (“ATE”) and Matthew Tran (“Tran”) (jointly, “Defendants”). The Complaint alleges causes of action for (1) discrimination on the basis of age, (2) harassment, (3) retaliation, (4) failure to prevent discrimination, harassment, or retaliation, and (5) wrongful termination in violation of public policy.

Defendants now move for summary judgment or, in the alternative, summary adjudication. Plaintiff opposes.

The Court grants Defendants’ request for judicial notice as to “Exhibit 4” attached to the request. The Court denies Defendants’ request for judicial notice of the statement in paragraph 1 of the request. The Court notes that “[a] party requesting judicial notice of material under Evidence Code sections 452 or 453 must provide the court and each party with a copy of the material.” (Cal. Rules of Court, rule 3.1306, subd. (d).) Defendants do not provide any evidence substantiating the statement set forth in paragraph 1 of the request.

The Court rules on the parties’ Second Amended Joint Statement of Objections Re Defendant’s Motion for Summary Judgment or, in the Alternative, Summary Adjudication, as follows:

Objection No. 6: sustained as to the third sentence, overruled as to the remainder.

Objection No. 7: overruled as to “TRAN displayed unwarranted hostility towards Mr. Chou, as well as other aged personnel such as me,” sustained as to the remainder.

Objection No. 10: overruled as to the first sentence, sustained as to the remainder.

Objection No. 15: sustained as to the fifth and sixth sentences, overruled as to the remainder.

Objection No. 18: sustained as to “in an attempt to humiliate her because of her age,” overruled as to the remainder.

Objection No. 19: overruled as to “[t]hat same day, TRAN sent emails to me and other employees regarding an 8% adjustment in pay from April to December of 2020,” sustained as to the remainder.

Objection No. 7: sustained as to “even if Mr. Chou had made such a complaint, it would not have been and was not a factor in selecting him for layoff,” overruled as to the remainder.

“[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.” ((Id., § 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).)

Plaintiff’s Objection and Request to Strike Defendants’ Amended Reply Separate Statement

On February 2, 2024, Defendants filed an “Amended Reply Separate Statement in Support of Defendants’ Motion for Summary Judgment or, in the Alternative, Summary Adjudication.” Plaintiff cites to Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 252, where the Court of Appeal noted that “[t]he deficiencies carried over to the reply papers, which included a 297-page reply separate statement. There is no provision in the statute for this.” The Court thus grants Plaintiff’s request that the Court strike Defendants’ reply separate statement.

In the Complaint, Plaintiff alleges that he “was employed by ATE for approximately seventeen years, beginning in or around April 23, 2003, as an Operations Clerk. Plaintiff worked for ATE until his unlawful termination on March 31, 2020.” (Compl., ¶ 14.) “In or about March of 2019, Stehanie Hang was promoted to Branch Manager and became Plaintiffs supervisor. Stephanie Hang moved Plaintiff to the Customer Service Department.” (Compl., ¶ 21.) “Angelita Gavino, Plaintiff’s co-worker, was also assigned to the Customer Service Department.” (Compl., ¶ 21.) “In or about May 2019, Plaintiff’s co-worker Angelita Gavino asked Stephanie Hang to

go out to lunch with both her and Matt Tran.” (Compl., ¶ 22.) Plaintiff alleges that “during the lunch meeting, Matt Tran stated ‘those idiot old men upstairs from accounting are pissing me off.’ Matt Tran was referring to Plaintiff and other personnel over the age of 40 years. Matt Tran further stated to Stephanie Hang that, ‘she should terminate both John Chou and Joseph because they are both old mother fuckers.’ Matt Tran further stated, ‘If am ever promoted, I would get rid of all the old people.’” (Compl., ¶ 22.)

Plaintiff alleges that “[i]n or about November 2019, Matt Tran was promoted to Assistant Manager in Customer Service. Matt Tran would treat Plaintiff with disdain during their interactions, which confused Plaintiff as to why. Matt Tran would treat Plaintiff as if he were incompetent or mimic him as being slow. Tran would stare at Plaintiff and would otherwise intentionally try to make Plaintiff feel uncomfortable. On several occasions Angelita Gavino overheard Matt Tran using profanity against Plaintiff saying, ‘that old motherfucker.’” (Compl., ¶ 24.) Plaintiff alleges that “[o]n or about February 25, 2019, Plaintiff complained to his supervisor Stephanie Hang about Matt Tran’s discriminatory comments regarding Plaintiffs age.” (Compl., ¶ 26.)

Plaintiff alleges that “[o]n or about March 20, 2020, the governor of the State of California announced a mandatory state lockdown.” (Compl., ¶ 27.) “Defendants advised all employees to work from home and take the company laptop home with them. Defendants then sent out an email to all employees announcing that all employees would be getting an 8% payroll deduction. However, neither Plaintiff nor the older employees received a copy of this email and were not offered a payroll reduction.” (Compl., ¶ 28.) Plaintiff alleges that “[o]n or about March 23, 2020, Plaintiff (age 63) was informed that he and Angelita Gavino (age 56 with a disability), and ‘Patty’ (age 48 with a disability) were all going to be terminated from their jobs. As a result of Plaintiffs age, and complaints of a hostile work environment, Plaintiff was harassed, discriminated, and retaliated against and ultimately terminated from his employment for false and pre-textual reasons.” (Compl., ¶ 29.)

In the Complaint, Plaintiff alleges that “[a]fter Plaintiff was terminated relative to his employment, his duties and responsibilities were given to a younger employee, in violation of FEHA. Plaintiff’s employment was terminated due to his age. Plaintiff was sixty-two (62) years old when he was terminated relative to his employment based on false and pretexual [sic] reasons.” (Compl., ¶ 41.) Defendants assert that Plaintiff’s first cause of action fails because “the evidence shows that ATE had a legitimate, non-discriminatory reason for laying Plaintiff off.” (Mot. at p. 14:13-14.) Defendants assert that Plaintiff cannot establish that such “legitimate and non-discriminatory reason” was a pretext for discrimination. (Notice of Motion at p. 2:18-20.)

“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, reproductive health decisionmaking, 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 refuse to select the person for a training program leading to employment, or to bar or to discharge the person from employment or from a training program leading to 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.)[3]

In the motion, Defendants argue that “while Plaintiff may be able to establish factors (1) through (3), he cannot establish discriminatory motive. The evidence shows that Plaintiff was laid off due to ATE’s cost-cutting plan in response to the COVID-19 pandemic.” (Mot. at p. 14:19-21.)

Defendants submit the Declaration of Stephanie Hang, the Branch Manager for the Los Angeles branch office of ATE. (Hang Decl., ¶ 1.) Ms. Hang states that “[i]n March 2020, due to COVID-19 and the supply chain crisis, which significantly impacted ATE’s industry, ATE implemented an emergency cost-cutting plan that included a fifteen percent reduction in its workforce. ATE CEO David Xiao directed the fifteen percent company-wide layoff and other reductions in salary as cost-cutting measures as a response to the pandemic.” (Hang Decl., ¶ 11.) Ms. Hang further states that “Mr. Chou was laid off with thirteen others nationwide, including six in the ATE-LAX office alone. The age range of those terminated in ATE-LAX range from 27 to 63 (Mr. Chou). Mr. Chow, I, and each department head participated in selecting the employees to be laid off from ATE-LAX.” (Hang Decl., ¶ 12.) Ms. Hang states that “Mr. Tran did not participate in the layoff selection process.” (Hang Decl., ¶ 13.)

Defendants also assert that “here, Plaintiff testified that he does not have any proof that Tran’s comments were related to his termination…Plaintiff is unable to establish that he was terminated because of his age.” (Mot. at p. 14:25-28.) Defendants cite to the following testimony from Plaintiff’s deposition: “(The record was read by the reporter as follows: ‘Q So my question is, what witnesses do you have who to your knowledge have evidence Matt Tran’s comments were related to your termination?’) THE WITNESS: I don’t have any proof.” (Watts Decl., ¶ 3, Ex. B (Chou Depo.) at p. 257:17-23.)

In the opposition, Plaintiff asserts that “the evidence shows that ATE had a discriminatory reason for laying Plaintiff off.” (Opp’ at p. 8:22-23.) In his supporting declaration, Plaintiff states that “Matt Tran would treat me with disdain during our interactions, which confused me as to why. Matt Tran would treat me as if I were incompetent or mimic me as being slow. Tran would stare at me and would otherwise intentionally try to make me feel uncomfortable.” (Chou Decl., ¶ 9.) At lunch, Matt Tran referred to Plaintiff as ‘that old man;” he also said to Stephanie Hang that if he was “ever promoted, [he] would get rid of all the old people.” (Gavino Decl., ¶ 26.)

Plaintiff asserts that “[t]o further appease Tran, Plaintiff was selected for termination…” (Opp’n at p. 9:17-18.) Plaintiff cites to the following testimony from his deposition: “Q. Okay. Sir, okay. So you go to Stephanie’s office. Matt Tran had actually resigned. Was it your understanding that Stephanie wanted Matt Tran to come back to work? A. Yes. Q. And it was your understanding that, according to Stephanie, Matt Tran had told Stephanie that you had to be, quote, end quote, out of his face. Did Stephanie actually use that language ‘out of his face’? A. The language is not out of his face out of -- is if he -- if Stephanie wants him back to work, I cannot be in the same department, same office. Q. The same department or the same office, sir? A. Same location, City of Industry customer service area.” (Denis Decl., ¶ 2, Ex. A (Chou Depo.) at p. 165:22-166:10.) In addition, Plaintiff cites to the following testimony from his deposition: “Q…Same question, sir, so what evidence do you have that connects her asking you to move to your termination? A[.] In connection of that is [sic] she told me about Matt Tran doesn’t want me to be in the department, and then Stephanie tell me to move...” (Denis Decl., ¶ 3, Ex. B (Chou Depo.) at p. 259:18-22.)

In his supporting declaration, Plaintiff states that “[o]n February 25, 2020, I complained to my supervisor Stephanie Hang about Matt Tran’s…comments regarding my age.” (Chou Decl., ¶ 11.) Plaintiff states that on March 23, 2020, at age 63, he was informed that he was going to be terminated. (Chou Decl., ¶ 14.) Plaintiff asserts that he “was replaced by substantially younger employees by name of Samantha Lu, at some point a guy named Kevin and a girl named Candy.” (Chou Decl., ¶ 15.)

Plaintiff also asserts that Defendants’ reason for laying Plaintiff off is pretextual. As discussed, Defendants provide evidence that “ATE CEO David Xiao directed the fifteen percent company-wide layoff and other reductions in salary as cost-cutting measures as a response to the pandemic.” (Hang Decl., ¶ 11.) Plaintiff asserts that “when Defendants implemented their alleged ‘cost-cutting,’ 15% reduction in workforce ‘nation-wide,’ they focused primarily on Los Angles…and did not implement their reduction ‘nation-wide,’ at their other locations.” (Opp’n at p. 2:17-19.) As discussed, Ms. Hang states that “Mr. Chou was laid off with thirteen others nationwide, including six in the ATE-LAX office alone.” (Hang Decl., ¶ 12.)

Plaintiff also asserts that “Defendants targeted older tenured employees and used the pandemic as a pretext,” and that Defendants “even hired new employees (as temporary workers) after letting go of the older employees.” (Opp’n at p. 2:19-21.) As discussed, Plaintiff states that “[o]n March 23, 2020, [he] (age 63)” was informed that he was going to be terminated, and that he “was replaced by substantially younger employees by name of Samantha Lu, at some point a guy named Kevin and a girl named Candy.” (Chou Decl., ¶¶ 14-15.) In addition, in her supporting declaration, Angelita Gavino states that “[o]n March 24, 2020, [she] was informed that [she] (56 with a disability)” was terminated from her job. (Gavino Decl., ¶ 36.) Plaintiff also submits the Declaration of Patricia Maravilla, who was employed at ATE “for a period of almost twenty-one years, beginning on August 18, 1999, as a receptionist.” (Maravilla Decl., ¶ 1.) Ms.

Maravilla states that “[o]n March 24, 2020…[she] received an email from HANG, stating that they were terminating [Maravilla’s] employment…” (Maravilla Decl., ¶ 14.) Ms. Maravilla states that she “was older as were those selected in the Los Angles [sic] office and had provided over twenty years of service to the company…” (Maravilla Decl., ¶ 14.)

In light of the foregoing, the Court finds that Plaintiff has raised a triable issue of material fact regarding whether “some other circumstance suggests discriminatory motive.” (Guz v. Bechtel National, Inc., supra, 24 Cal.4th at p. 355.) The Court also finds that Plaintiff raised a triable issue of material fact regarding whether Defendants’ proffered reason for termination is pretextual. Thus, the Court does not find that summary adjudication of the first cause of action is warranted.

Government Code section 12940, subdivision (j)(1) provides that it is an unlawful employment practice “[f]or an employer…or any other person, because of 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, reproductive health decisionmaking, or veteran or military status, to harass an employee, an applicant, an unpaid intern or volunteer, or a person providing services pursuant to a contract.”

To establish a prima facie case for harassment, a plaintiff must show that (1) he was a member of a protected class; (2) he was subjected to unwelcome harassment; (3) the harassment was based on membership in the protected class; (4) the harassment unreasonably interfered with his work performance by creating an intimidating, hostile, or offensive work environment; and (5) the [employer] is liable for the harassment. (¿Thompson v. City of Monrovia (2010) 186 Cal.App.4th 860, 876¿; see also ¿Dickson v. Burke Williams, Inc. (2015) 234 Cal.App.4th 1307, 1313¿ [“¿One of the elements of a harassment claim . . . is that the harassment be sufficiently severe or pervasive so as to alter the conditions of employment and create an abusive working environment.¿”].)

In the Complaint, Plaintiff alleges that he “was subjected to harassment based on his age, including the termination. Defendants tolerated the discriminatory atmosphere and behavior at work, including the following: a. Defendant TRAN would make demeaning remarks about older personnel, such as ‘idiot old men’ ‘she should terminate both John Chou and Joseph because they are both old mother fuckers’ ‘If I am ever promoted, I would get rid of all the old people’ and similar disparaging commentary; b. Defendants allowed TRAN to target Plaintiff with stares, mocking and other negative behavior towards Plaintiff and those similarly situated due to age or other protected characteristics. c. Defendants ignored Plaintiffs complaints about differential mistreatment and instead protected TRAN as ‘just venting.’ d. Despite having knowledge of TRAN’s mistreatment and discriminatory attitude towards older personnel, such as Plaintiff, Defendants promoted him to Assistant Manager in Customer Service in a maneuver to oust the older employees. e. On several occasions, TRAN was overheard using profanity that was directed at Plaintiff and those similarly situated, such as ‘that old motherfucker.’” (Compl., ¶ 51.)

In the motion, Defendants argue that “[e]ven if the…alleged conduct identified by Plaintiff were true and/or Plaintiff’s perception of Tran’s conduct were true, they are not severe or sufficiently pervasive as to alter the conditions of Plaintiff’s employment and create a work environment that qualifies as hostile or abusive.” (Mot. at p. 20:10-13.) Defendants point to the following testimony from Plaintiff’s deposition: “Q[.] So it seems like you and Mr. Tran had had tension ever since you were assigned to customer service, correct? A [.] It’s not considered as tension, but the approach is not correct. Q[.] Whose approach is not correct, sir? A[.] Matt’s approach. Q[.] And why is his approach not correct? A[.] Because the way that he is showing that he is the boss but he is not the boss.” (Watts Decl., ¶ 3, Ex. B (Chou Depo.) at p. 211:12-21.) Defendants assert that “[t]his is not a case of…harassment but mere office politics.” (Mot. at p. 20:15-16.)

In addition, Defendants cite to Doe v. Department of Corrections & Rehabilitation (2019) 43 Cal.App.5th 721, 737, where the Court of Appeal noted that “[w]orkplaces can be stressful and relationships between supervisors and their subordinates can often be contentious. But FEHA was not designed to make workplaces more collegial; its purpose is to eliminate more insidious behavior like discrimination and harassment based on protected characteristics.” Defendants argue that “[h]ere, there is no evidence of insidious behavior like discrimination and harassment based on protected characteristics, specifically, age,” because “[o]ther than Gavino…Plaintiff admits that no one else ever told him Tran made age-related comments and/or that there is evidence Tran treated anyone negatively because of their age.” (Mot. at p. 21:3-7.)

Defendants note that Plaintiff testified in his deposition as follows: “So let me just ask this as a global question. In the entire time that you worked at Air Tiger Express, did you ever hear yourself Matt Tran make a negative comment about people based on their age? A. To my understanding, no.” (Watts Decl., ¶ 2, Ex. A (Chou Depo.) at p. 125:21-25.) In addition, Defendants cite to the following testimony: “Q. Sir, did you ever hear Matt Tran say the words ‘old motherfucker,’ ever? A. Not in front of me.” (Id. at p. 126:22-24.) Defendants also cite to the following testimony: “Q. Did you ever hear Matt Tran make a statement that anyone should terminate Angie because she is an old motherfucker or because she is old? A. I don’t hear it personally. Q. Did you ever hear Matt Tran make the statement if I’m ever promoted, I would get rid of Angie or other old people? A. That is from Angie told me about that statement. Q. But you never heard it yourself? A. I never heard it myself. Q. Did anyone, other than Angie, ever tell you that Matt Tran made similar statements? A. Sorry. Repeat. (The record was read as requested.) THE WITNESS: No.” (Id. at p. 131:8-22.)

In the opposition, Plaintiff asserts that Defendants are not entitled to judgment on the second cause of action for harassment because the harassment was severe and/or pervasive. Plaintiff points to Tran’s statement during the lunch meeting discussed above. Plaintiff appears to acknowledge that “these comments were not made directly to Plaintiff,” but asserts that such point is a “red herring.” (Opp’n at p. 14:6.) Indeed, in the motion, Defendants do not appear to cite any legal authority demonstrating that Tran’s statements must have been made directly to Plaintiff in order for Plaintiff to state a cause of action for harassment.

Plaintiff also asserts that “the evidence shows that the criticism, and mocking, and false allegations, and suggestions that Plaintiff was [old] with derogatory comments, adversely affected Plaintiff’s ability to do his job.” (Opp’n at p. 16:15-17, emphasis omitted.) As set forth above, Plaintiff testified in his deposition as follows: “Q. Okay. Sir, okay. So you go to Stephanie’s office. Matt Tran had actually resigned. Was it your understanding that Stephanie wanted Matt Tran to come back to work? A. Yes. Q. And it was your understanding that, according to Stephanie, Matt Tran had told Stephanie that you had to be, quote, end quote, out of his face. Did Stephanie actually use that language ‘out of his face’? A. The language is not out of his face out of is if he -- if Stephanie wants him back to work, I cannot be in the same department, same office. Q. The same department or the same office, sir? A. Same location, City of Industry customer service area.” (Denis Decl., ¶ 2, Ex. A (Chou Depo.) at p. 165:22-166:10.) Plaintiff also points to his testimony that “[a]s long as I have the idea or the information about Matt Tran talking about that comment, I didn’t take immediate action until the day that I was call in the room with Stephanie saying that he is having a comment of either take him or get me away.” (Id. at p. 114:11-15.)

Based on the foregoing, the Court finds that Plaintiff has raised a triable issue of material fact regarding whether the “harassment [was] sufficiently severe or pervasive so as to alter the conditions of employment and create an abusive working environment.” (Dickson v. Burke Williams, Inc., supra, 234 Cal.App.4th at p. 1313.) Thus, the Court does not find that summary adjudication of the second cause of action is warranted.

In the third cause of action for retaliation, Plaintiff alleges, inter alia, that “[t]he retaliatory actions of Defendants against Plaintiff, as more fully set forth above, include but are not limited to: a. Retaliation against Plaintiff for complaining about age discrimination; b. Retaliating against Plaintiff for exercising his FEHA rights for complaining of disparate treatment due to age and requesting intervention to stop mistreatment; c. Terminating Plaintiff because of Plaintiff’s age.” (Compl., ¶ 62.)

“[I]n order to establish a prima facie case of retaliation under the FEHA, a plaintiff must show (1) he or she engaged in a ‘protected activity,’ (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer’s action.” (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.) Protected activity includes opposing “any practices forbidden” under FEHA or filing a complaint, testifying, or assisting in any proceeding under FEHA. (Gov. Code, section 12940, subd. (h).)¿¿¿

In the motion, Defendants assert that Plaintiff “believes his complaint is connected to his termination because of the proximity of time.” (See Defendants’ UMF No. 56.) Defendants point to the following testimony from Plaintiff’s deposition: “Q[.]…Can you tell me all the reasons that you believe that your termination was related to age discrimination? A [.] Okay. The comments just like the comment from Mr. Matt Tran and then the harassment which is really also from Matt Tran and also the conversation between Stephanie and me asking me about some -- something about moving me to other places and then – there’s a lot -- the retaliation of how they treat me without proper handling of switching my title and then also the thing, the complaint that I leaked to Stephanie about the unfair treatment that I received. Q[.] The complaint about the unfair treatment, that was the complaint that you made to Stephanie Hang on February 25th, 2020, correct? A[.] Yes.” (Watts Decl., ¶ 3, Ex. B, p. 255:18-256:7.) As discussed, Plaintiff alleges that on March 23, 2020, he was terminated. (Compl., ¶ 29.)

Defendants note that “temporal proximity alone is not sufficient to raise a triable issue as to pretext once the employer has offered evidence of a legitimate, nondiscriminatory reason for the termination.” (Arteaga v. Brink's, Inc. (2008) 163 Cal.App.4th 327, 353.) As discussed, Defendants assert that here, ATE had a legitimate, non-discriminatory reason for laying Plaintiff off. As set forth above, Ms. Hang states that “[i]n March 2020, due to COVID-19 and the supply chain crisis, which significantly impacted ATE’s industry, ATE implemented an emergency cost-cutting plan that included a fifteen percent reduction in its workforce. ATE CEO David Xiao directed the fifteen percent company-wide layoff and other reductions in salary as cost-cutting measures as a response to the pandemic.” (Hang Decl., ¶ 11.)

Plaintiff asserts that Defendants are not entitled to judgment on Plaintiff’s third cause of action for retaliation. Plaintiff asserts that he “engaged in a protected activity when he resisted and complained of the discrimination and harassment of Tran on February 25, 2020.” (Opp’n at p. 13:12-13.) As discussed, Plaintiff states in his supporting declaration that “[o]n February 25, 2020, I complained to my supervisor Stephanie Hang about Matt Tran’s…comments regarding my age.” (Chou Decl., ¶ 11.) Plaintiff notes that approximately one month later, on March 23, 2020, Plaintiff was informed that he was going to be terminated. (Chou Decl., ¶ 11.) Plaintiff cites to Light v. Department of Parks & Recreation (2017) 14 Cal.App.5th 75, 91, where the Court of Appeal noted that “[i]n order to establish a prima facie case of retaliation under FEHA, a plaintiff must show (1) he or she engaged in a protected activity, (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer’s action. The requisite causal link may be shown by the temporal relationship between the protected activity and the adverse employment action.” (Internal quotations omitted.)

Plaintiff also asserts that Defendants’ reason for laying Plaintiff off is pretextual. As set forth above, Defendants state that “ATE CEO David Xiao directed the fifteen percent company-wide layoff and other reductions in salary as cost-cutting measures as a response to the pandemic.” (Hang Decl., ¶ 11.) As discussed, Plaintiff asserts “when Defendants implemented their alleged ‘cost-cutting,’ 15% reduction in workforce ‘nation-wide,’ they focused primarily on Los Angles [sic]…and did not implement their reduction ‘nation-wide,’ at their other locations.” (Opp’n at p. 2:16-19.) As set forth above, Ms. Hang states that “Mr. Chou was laid off with thirteen others nationwide, including six in the ATE-LAX office alone.” (Hang Decl., ¶ 12.)[4] Plaintiff also asserts that “Defendants targeted older tenured employees and used the pandemic as a pretext.” (Opp’n at p. 2:19-21.) As discussed, Plaintiff states that “[o]n March 23, 2020, [he] (age 63)” was informed that he was going to be terminated, and that he “was replaced by substantially younger employees by name of Samantha Lu, at some point a guy named Kevin and a girl named Candy.” (Chou Decl., ¶¶ 14-15.)[5]

Based on the foregoing, the Court does not find that Plaintiff relies solely on temporal proximity to create a triable issue as to pretext. (Arteaga v. Brink's, Inc., supra, 163 Cal.App.4th 327, 353.) The Court finds that Plaintiff has raised a triable issue of material fact regarding whether he can establish his cause of action for retaliation. Thus, the Court does not find that summary adjudication of the third cause of action is warranted.

E. Fourth Cause of Action for Failure to Take All Reasonable Steps to Prevent Discrimination, Harassment, and Retaliation

Government Code section 12940, subdivision (k), prohibits an employer from failing “to take all reasonable steps necessary to prevent discrimination and harassment from occurring.”¿“An employer who knows or should have known of unlawful harassment and retaliation, and fails to take immediate and appropriate corrective action, may be liable for the resulting damages…However, because the statute does not create a stand-alone tort, the employee has no cause of action for a failure to investigate unlawful harassment or retaliation, unless actionable misconduct occurred.” (Thompson v. City of Monrovia, supra, 186 Cal.App.4th at p. 880.) Defendants argue that “Plaintiff’s cause of action for failure to prevent is derivative of his FEHA claims, and must fail for the same reasons.” (Mot. at p. 22:15-16.)

Because the Court denies summary adjudication on the discrimination, harassment, and retaliation causes of action, the Court also denies summary adjudication on the fourth cause of action for failure to prevent discrimination, harassment, or retaliation.

“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.” (Yau v. Allen (2014) 229 Cal.App.4th 144, 154.) A discharge in violation of the FEHA may give rise to a common law claim for wrongful discharge. (Stevenson v. Superior Court (1997) 16 Cal.4th 880, 897.)

Defendants assert that “Plaintiff’s cause of action for wrongful termination is predicated on Plaintiff’s allegations of discrimination and retaliation. Given that Plaintiff cannot establish that ATE violated FEHA, this cause of action fails as a matter of law.” (Mot. at p. 22:20-22.) As discussed, the Court denies summary adjudication on the discrimination and retaliation causes of action. Thus, the Court also denies summary adjudication on the fifth cause of action for wrongful termination in violation of public policy.

Plaintiff seeks punitive damages in connection with each of the causes of action of the Complaint. (Compl., ¶¶ 48, 60, 71, 88, 98.) Summary adjudication may be granted as to a claim for punitive damages even though it does not dispose of an entire cause of action. (¿Code Civ. Proc., § 437c, subd. (f)(1)¿.) An award of punitive damages “¿is authorized ‘in addition to the actual damages’ where ‘the defendant has been guilty of oppression, fraud or malice, express or implied.’¿” (¿Alterauge v. Los Angeles Turf Club (1950) 97 Cal.App.2d 735, 739¿.)

Defendants assert that “while Plaintiff claims that Tran made age-related discriminatory statements on one occasion, which Plaintiff did not personally hear, and that Tran treated Plaintiff with ‘disdain’ by ignoring Plaintiff, not talking to Plaintiff and having a facial expression on his face that Plaintiff interpreted in a negative light, such conduct does not rise to malice or oppression.” (Mot. at p. 23:11-15.) “‘Malice’ means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” (Civ. Code, § 3294, subd. (c)(1).) “‘Oppression’ means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” (Civ. Code,¿§ 3294, subd. (c)(2).) “Despicable conduct is conduct that is so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down¿upon and despised by ordinary decent people.” (Johnson & Johnson Talcum Powder Cases¿(2019) 37 Cal.App.5th 292, 332-333 [internal quotations omitted].)

Defendants assert that “Plaintiff testified that the age-related comments were initially not important to him; he never heard Tran make discriminatory statements.” (Mot. at p. 23:20-21.) Defendants cite to the following testimony from Plaintiff’s deposition: “Q. Okay. So whenever that was when Angelita Gavino told you about it, you did not feel comfortable reporting that. Is that correct? A. No. Is not uncomfortable, is I’m thinking about that is not that important to me at that stage Q. Okay. Sir did you -- so it’s safe to say then that you did not file any kind of complaint whenever Angelita Gavino first told you about those statements, correct? A. Yes. Q. Including a verbal complaint, right? A. Yes. Q. Sir, this is going to be a global question. Maybe we can short circuit this. At any point in time, did you ever file or present a written complaint in any form about what you perceived to be discrimination or harassment on the basis of age to anyone at Air Tiger Express? A. No.” (Watts Decl., ¶ 2, Ex. A (Chou Depo.) at p. 114:20-115:12.)

As an initial matter, Plaintiff asserts that “Defendants don’t raise anything related to punitive damages in the separate statement therefore the court should deny summary adjudication as to this issue.” (Opp’n at p. 18:5-7.) But Defendants’ Separate Statement does reference Plaintiff’s punitive damages claim. Defendants’ Separate Statement lists “Issue No. 9: Plaintiff is not entitled to punitive damages because he has not proffered any evidence, much less clear and convincing evidence, which supports an award of punitive damages.” (See Defendants’ Separate Statement at p. 22:22-27.)

In the opposition, Plaintiff also asserts that “[l]ogic dictates that terminating Plaintiff because he is older, where it is known to be difficult for older employees to find comparable employment and for reporting vile statements by a supervisor, had a high probability of causing harm.” (Opp’n at p. 17:16-19, emphasis omitted.) But Plaintiff does not appear to cite to any evidence demonstrating that it was difficult for him to find comparable employment.

Plaintiff also asserts that “Defendant’s conduct not only damaged Plaintiff but undermined the FEHA.” (Opp’n at p. 17:22.) Plaintiff notes that in Flyer's Body Shop Profit Sharing Plan v. Ticor Title Ins. Co. (1986) 185 Cal.App.3d 1149, 1154, the Court of Appeal found that “[p]unitive damages are appropriate if the defendant’s acts are reprehensible, fraudulent or in blatant violation of law or policy.” But the Flyer's Court also noted that “to establish malice, it is not sufficient to show only that the defendant’s conduct was negligent, grossly negligent or even reckless. There must be evidence that defendant acted with knowledge of the probable dangerous consequences to plaintiff’s interests and deliberately failed to avoid these consequences.” (Flyer's Body Shop Profit Sharing Plan v. Ticor Title Ins. Co., supra, 185 Cal.App.3d at p. 1155 [internal citation omitted].)

Plaintiff’s opposition cites to the definition of “malice” set forth in Civil Code section 3294. (See Opp’n at p. 17:10-11.) However, to the extent Plaintiff is asserting that Defendants’ conduct rises to the level of malice, Plaintiffs do not appear to point to any evidence showing “conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” (Civ. Code, § 3294, subd. (c)(1).)

Plaintiff also contends that “[t]here are issues of fraud (not following the 15% reduction in workforce- if true) and oppression by moving the victim to appease the perpetrator Tran, which could also be raised for punitive damages.” (Opp’n at p. 17:26-28.) In support of this assertion, Plaintiff only cites to the following testimony from the deposition of Jeff Chow[6]: “Q[.] Do you know if there were any -- do you know? Or do you know there was -- when you say ‘No,’ you don’t know? Or you do know, and there weren’t? A[.] I do not know anyone got laid off in any office besides the Los Angeles office.” (Denis Decl., ¶ 4, Ex. C (Chow Depo.) at p. 131:9-13; Plaintiff’s Additional Material Fact No. 45.) The Court does see how this demonstrates, “fraud” under Civil Code section 3294, i.e., “intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.” (Civ. Code, § 3294, subd. (c)(3).) The Court also does not see how this demonstrates “oppression” under Civil Code section 3294. (See Civ. Code, § 3294, subd. (c)(2).)

Based on the foregoing, the Court finds that Defendants have demonstrated that Plaintiffs’ punitive damages claims are without merit, and that Plaintiff has failed to raise a triable issue of material fact on this issue.

Defendants’ motion for summary adjudication is granted as to Plaintiff’s claims for punitive damages. Defendants’ motion for summary adjudication is otherwise denied.

[1]The Court also notes that the parties’ “Stipulation Re Withdrawal of Evidence” filed on February 28, 2024 provides, inter alia, that Defendants withdraw certain evidence, including, inter alia, “Hang Declaration, paragraph 13, lines 22-26.” (See Stipulation, p. 2, ¶ 3.)

[2]((See Reid v. Google, Inc. (2010) 50 Cal.4th 512, 520, fn. 2.)

[3]In Johnson v. United Cerebral Palsy/Spastic Children's Foundation (2009) 173 Cal.App.4th 740, 755, cited by Plaintiff, the Court of Appeal noted that “[t]o avoid summary judgment, an employee claiming discrimination must offer substantial evidence that the employer’s stated nondiscriminatory reason for the adverse action was untrue or pretextual, or evidence the employer acted with a discriminatory animus, or a combination of the two, such that a reasonable trier of fact could conclude the employer engaged in intentional discrimination.” The Johnson Court noted that “[i]n other words, plaintiff must produce substantial responsive evidence to show that [the employer’s] ostensible motive was pretextual; that is, that a discriminatory reason more likely motivated the employer or that the employer’s explanation is unworthy of credence.” (Ibid., internal quotations omitted.)

[4]Ms. Hang states that “ATE is a nationwide freight forwarder company with its main office in New York. There are other offices throughout the country, including offices in Chicago, Phoenix, Dallas, Denver, Seattle, Atlanta and Los Angeles. There are also numerous offices in China and elsewhere in Asia.” (Hang Decl., ¶ 2.)

[5]As also discussed above, Ms. Maravilla states that “[o]n March 24, 2020…[she] received an email from HANG, stating that they were terminating [her] employment…” (Maravilla Decl., ¶ 14.) Ms. Maravilla states that she “was older as were those selected in the Los Angles office…” (Maravilla Decl., ¶ 14.)

[6]In his declaration in support of the motion, Jeff Chow states that he is the Office Manager for the Los Angeles branch office of ATE. (Chow Decl., ¶ 1.)

Superior Court of California

County of Los Angeles

Department 50