Judge: Teresa A. Beaudet, Case: 22STCV07335, Date: 2023-12-05 Tentative Ruling

Case Number: 22STCV07335    Hearing Date: February 1, 2024    Dept: 50

Superior Court of California

County of Los Angeles

Department 50

Background

Plaintiff Maria Varela (“Plaintiff”) filed this action on February 28, 2022 against Defendants J and S Hospitality, Inc., Best Western International, Inc. (“BWI”), Rebecca Doe, Greg Doe, and Best Western Palm Desert Resort. 

The Complaint asserts causes of action for (1) disability discrimination, (2) perceived disability discrimination, (3) failure to prevent harassment and retaliation, (4) retaliation in violation of Government Code section 12940, et seq., (5) age discrimination, (6) nationality discrimination, (7) wrongful termination in violation of public policy, and (8) intentional infliction of emotional distress.

            BWI moved for an order granting summary judgment in its favor on Plaintiff’s Complaint and all causes of action set forth therein. On December 6, 2023, the Court issued a minute order granting BWI’s motion for summary judgment.

            Plaintiff now “bring[s] a Motion for New Trial pursuant to Code of Civil Procedure Sections 656, 657, 658, 659 and requests the Court vacate the December 6, 2023, order in favor of Defendant Best Western International Inc…and enter a different order Denying the Motion for Summary Judgment/ Adjudication.” BWI opposes.

Discussion

“A motion for new trial is a creature of statute…”  (Neal v. Montgomery Elevator Co. (1992) 7 Cal.App.4th 1194, 1198.) “[A] motion for a new trial can be granted only on one of the grounds enumerated in the statute.” (Fomco, Inc. v. Joe Maggio, Inc. (1961) 55 Cal.2d 162, 166.) Pursuant to Code of Civil Procedure section 657, “[t]he verdict may be vacated and any other decision may be modified or vacated, in whole or in part, and a new or further trial granted on all or part of the issues, on the application of the party aggrieved, for any of the following causes, materially affecting the substantial rights of such party:

1. Irregularity in the proceedings of the court, jury or adverse party, or any order of the court or abuse of discretion by which either party was prevented from having a fair trial.

2. Misconduct of the jury; and whenever any one or more of the jurors have been induced to assent to any general or special verdict, or to a finding on any question submitted to them by the court, by a resort to the determination of chance, such misconduct may be proved by the affidavit of any one of the jurors.

3. Accident or surprise, which ordinary prudence could not have guarded against.

4. Newly discovered evidence, material for the party making the application, which he could not, with reasonable diligence, have discovered and produced at the trial.

5. Excessive or inadequate damages.

6. Insufficiency of the evidence to justify the verdict or other decision, or the verdict or other decision is against law.

7. Error in law, occurring at the trial and excepted to by the party making the application.”

(Code Civ. Proc., § 657.)

In addition, “[b]ecause resolution of a summary judgment motion involves the trial of an issue of law, a decision granting a motion for summary judgment may be challenged by a motion for new trial.” (Scott v. Farrar (1983) 139 Cal.App.3d 462, 467.)

            In the instant motion, Plaintiff first asserts that “the trial court incorrectly granted summary judgment as to Best Western International since Defendant failed to negate all theories of liability in the Complaint.” (Mot. at p. 6:24-26.) Plaintiff notes that the Complaint in the instant action alleges that “Plaintiff is informed and believes, and thereon alleges, that at all times relevant herein, each Defendant designated, including DOES 1 through 100, herein was the agent, partner, joint venturer, representative, servant, alter ego, subsidiary, successor, owner, parent, joint employer, principal, agent, employee and/or co-conspirator of each of the other Defendants, and was at all times mentioned herein acting within the course and scope of said agency and employment, and that all acts or omissions alleged herein were duly committed with the ratification, knowledge, permission, encouragement, authorization and consent of each Defendant designated herein.” (Compl., ¶ 35, emphasis added.)

Plaintiff asserts that “Defendants [sic] only addressed one theory, joint employer…” (Mot. at p. 7:7.) Plaintiff asserts that “Defendants [sic] have to produce evidence to negate that that [sic] Best Western Palm Desert was an agent of Best Western International or that Best Western International was an alter ego of plaintiff [sic]. Therefore, summary judgment was not appropriate.” (Mot. at p. 12:12-14.)

In the opposition, BWI asserts that Plaintiff “make[s] the untenable claim that BWI did not refute her boilerplate language in Paragraph 35 of the Complaint.” (Opp’n at p. 2:22.) BWI asserts that it “conclusively refuted Plaintiff’s half-hearted allegation that BWI could in any way be responsible for purported FEHA violations, which disproves her bare bones allegations that BWI ‘duly committed’ her employment termination, or any other alleged employment-related offense against her. Plaintiff submitted no evidence in opposition to the MSJ to show that BWI acted in any type of agency, employer, or co-conspirator fashion to ratify or commit the employment termination decision, or any of the actions she alleges in the Complaint. Therefore, Plaintiff cannot raise any triable issues reflecting that BWI is liable for any of the acts or omissions alleged in the Complaint arising out of her employment with J&S.” (Opp’n at p. 3:7-14.) Indeed, Plaintiff argues in a heading of her November 21, 2023 opposition to BWI’s motion for summary judgment that “Defendants [sic] have failed to negate all of the various theories under which a jury could find Best Western International liable for discrimination and FEHA violations.” (Plaintiff’s November 21, 2023 Opp’n at p. 11:13-16.) But Plaintiff cites only to allegations of the Complaint in support of this assertion, not any supporting evidence. (See Plaintiff’s November 21, 2023 Opp’n at p. 11:17-12:5.)

The December 6, 2023 minute order concerning BWI’s motion for summary judgment provides, inter alia, that “the Court finds that BWI has met its burden of demonstrating that it is not a joint employer of the Resort, and that Plaintiff has failed to raise a triable issue of material fact as to this issue.” (December 6, 2023 minute order, p. 11.) Pursuant to Code of Civil Procedure section 437c, subdivision (p)(2), “[a] defendant or cross-defendant 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, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action. Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. The plaintiff or cross-complainant shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto.”

Moreover, the Court notes that paragraph 35 of Plaintiff’s Complaint alleges that “Plaintiff is informed and believes, and thereon alleges, that at all times relevant herein, each Defendant designated, including DOES 1 through 100, herein was the agent, partner, joint venturer, representative, servant, alter ego, subsidiary, successor, owner, parent, joint employer, principal, agent, employee and/or co-conspirator of each of the other Defendants, and was at all times mentioned herein acting within the course and scope of said agency and employment, and that all acts or omissions alleged herein were duly committed with the ratification, knowledge, permission, encouragement, authorization and consent of each Defendant designated herein.” (Emphasis added.)

            Plaintiff also asserts in the instant motion that “Defendants [sic] rely on inapplicable cases that apply federal wage statutes, wage and hour complaints. This is not a wage and hour complaint. This is a complaint for discrimination and retaliation under the Fair Employment and Housing Act based on plaintiff’s disability and age. Defendants did not cite to any cases that involve the definition of employer under FEHA.” (Mot. at p. 13:5-9.) But in the instant motion, Plaintiff cites to Bradley v. Department of Corrections & Rehabilitation (2008) 158 Cal.App.4th 1612, 1626, and notes that the Bradley Court found that  “[w]e glean no magic formula for determining whether the requisite employment relationship exists. The prevailing view is to consider the totality of the circumstances, reflecting upon the nature of the work relationship between the parties, and placing emphasis on the control exercised by the employer over the employee’s performance of employment duties. Consequently, when a statute fails to define the term ‘employee,’ courts routinely look at the common law definition for guidance, focusing on the amount of control the employer exercises over the employee.” (Internal citation omitted.) The Court’s December 6, 2023 minute order concerning BWI’s motion for summary judgment provides, inter alia, that “BWI cites to Futrell v. Payday California, Inc. (2010) 190 Cal.App.4th 1419, 1434, where the Court of Appeal noted that ‘[t]he essence of the common law test of employment is in the ‘control of details.’ A number of factors may be considered in evaluating this control…” (December 6, 2023 minute order, p. 2.)

            Plaintiff also asserts in the instant motion that “[t]he Single Employer Doctrine and the Integrated Enterprise Test are the applicable tests to apply.” (Mot. at p. 8:1-2.) Plaintiff cites to Mathews v. Happy Valley Conference Center, Inc. (2019) 43 Cal.App.5th 236, 248, where the Court of Appeal noted that “[t]he federal courts have developed a test, derived from federal labor case law, to determine whether two corporations should be considered a single employer for title VII purposes. Commonly called the ‘integrated enterprise’ test, it has four factors: interrelation of operations, common management, centralized control of labor relations, and common ownership or financial control. The test was designed to further Congress’s intent that title VII be construed liberally, including its definition of the term employer. Common ownership or control alone is never enough to establish single employer liability, and courts often deem centralized control of labor relations the most important factor. The critical question is, [w]hat entity made the final decisions regarding employment matters related to the person claiming discrimination?” (Internal quotations and citations omitted.)  

Plaintiff asserts that “[a]pplying the integrated enterprise test, to the facts of this case, a jury could find that BWI and J&S Best Western Palm Springs are two entities that are integrated to be a single employer.” (Mot. at p. 8:10-11.) But Plaintiff does not appear to cite to legal authority demonstrating that the “integrated enterprise” test must be applied in FEHA cases. In addition, the Court notes that Plaintiff’s November 21, 2023 opposition to BWI’s motion for summary judgment argued that “[t]here thus appears to be an issue whether CAPL and Circle K should be considered a single employer based on the extent to which the two entities had control over each other’s management decisions. This is an issue affecting whether the Court has personal jurisdiction over CAPL and Circle K. Neither party has briefed the court on whether the CAPL and Circle K should be considered a single employer under the ‘integrated enterprise’ test.” (Plaintiff’s November 21, 2023 opposition at p. 15:12-16.) This argument appears to concern entities that are not parties to the instant case.

            Moreover, as set forth above, the Mathews Court noted that “[t]he critical question is, [w]hat entity made the final decisions regarding employment matters related to the person claiming discrimination?” (Mathews v. Happy Valley Conference Center, Inc., supra, 43 Cal.App.5th at p. 248 [internal quotations omitted].) The Court’s December 6, 2023 minute order provides, inter alia, that “[h]ere, Plaintiff does not appear to provide any evidence demonstrating that BWI had the power to terminate her employment. As discussed above, BWI provides evidence that BWI ‘does not have, nor has it ever had, the right to hire, discharge, or discipline employees…’” (December 6, 2023 minute order at pp. 9-10.)

            Plaintiff also asserts that “[t]he cases defendants [sic] rely on are not applicable and even if they were, there is a factual dispute as to whether BWI retained the authority to control the day-to-day operations at Best Western Resort Palm Springs and thus were [sic] an employer of Plaintiff.” (Mot. at p. 13:10-14.) Plaintiff asserts, without citing to supporting evidence, that “[j]ust like in Taylor and Medina, BWI requires the employees to follow BWI policies and procedures in the daily operation of the hotel, and oversee the hotel, and any customer complaints as set forth in their Policies and Procedures.” (Mot. at p. 14:17-19.) The Court notes that the Medina case is discussed throughout the Court’s December 6, 2023 minute order. The Court noted, inter alia, as follows:

“BWI notes that here, ‘[t]here is no evidence that BWI had any authority to terminate Plaintiff’s employment, or any other J&S employees’ employment at the hotel.” (Reply at p. 9:24-26.) As set forth above, the Medina Court found that ‘[t]he undisputed facts in this case are more than sufficient to support such a finding. Shell provided extremely detailed technical instructions for managing their stations, and deviations from these standards were prohibited. Plaintiff was even threatened with termination by a Shell employee for an alleged violation of these standards. Another Shell employee told plaintiff at training she had fired ‘many’ MSO operator managers for violating these policies.’ (Medina v. Equilon Enters., supra, 68 Cal.App.5th at p. 879.) The Medina Court further noted that ‘[t]here are certain features of the facts and evidence in this case that appear to differ from those presented to the courts in Curry and Henderson. The evidence offered in this case by plaintiff that Shell employees told him they had the power to fire him, or to have him fired, does not appear in the Curry or Henderson opinions.’ (Id. at p. 878.) Here, Plaintiff does not appear to provide any evidence demonstrating that BWI had the power to terminate her employment. As discussed above, BWI provides evidence that BWI ‘does not have, nor has it ever had, the right to hire, discharge, or discipline employees…’ (Genther Decl., ¶ 6.)” (December 6, 2023 minute order at pp. 9-10.)

            Moreover, it is unclear on what grounds for a new trial Plaintiff is relying on as to this argument. (See Code Civ. Proc., § 657.)    

            Lastly, Plaintiff asserts in the instant motion that “the defendants refused to produce any financial discovery that would have shown the final prong of the integrated entity test that BWI had financial control over Best Western Palm Springs.” (Mot. at p. 14:20-23.) Plaintiff argues that she “requested a denial of the motion pursuant to CCP437c(h)…Unfortunately, since the Judge who ruled on the MSJ was not the same Judge who denied plaintiff the discovery needed to oppose the MSJ on the financial control of BWI, the Judge who decided the motion [sic]. Judge Treu did not know the history of the discovery and that plaintiff had requested the necessary information prior to the time the opposition was due.” (Mot. at pp. 14:24-15:2.)

            As an initial matter, Plaintiff’s memorandum of points and authorities in support of Plaintiff’s opposition to BWI’s motion for summary judgment, filed on November 21, 2023, does not appear to contain any request for denial of the motion pursuant to Code of Civil Procedure section 437c, subdivision (h). This provision provides that “[i]f it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication, or both, that facts essential to justify opposition may exist but cannot, for reasons stated, be presented, the court shall deny the motion, order a continuance to permit affidavits to be obtained or discovery to be had, or make any other order as may be just. The application to continue the motion to obtain necessary discovery may also be made by ex parte motion at any time on or before the date the opposition response to the motion is due.” Code of Civil Procedure section 437c, subdivision (h) does not appear to be cited or discussed in Plaintiff’s opposition brief.

            In the instant motion, Plaintiff cites to Undisputed Material Fact No. 40 of her “Separate Statement of Undisputed Material Facts in Support of Plaintiff’s Opposition to Defendants’ Motion for Summary Judgment” (filed on November 21, 2023), which provides, “Defendants refused to respond to any financial discovery regarding the payment of fees, who pays the payroll for the employees, what the financial reporting is to Best Western International and who controls and the financial relationship between Best Western International and Best Western Palm Dessert. Proof: See Declaration of Maryann Gallagher in Opposition to the Motion for Summary Judgment regarding Attempts to discovery financial information and Exhibits 1-4 thereto. See CCP 437c(h).” But Plaintiff does not point to any request in her opposition to BWI’s motion for summary judgment that the Court “deny the motion, order a continuance to permit affidavits to be obtained or discovery to be had, or make any other order as may be just.” (Code Civ. Proc., § 437c, subd. (h).) It is also unclear how Code of Civil Procedure section 657 purportedly applies to this argument.

            Based on the foregoing, the Court does not find that Plaintiff has demonstrated grounds for the Court to vacate the subject December 6, 2023 minute order and enter a different order denying BWI’s motion for summary judgment.

Conclusion

Based on the foregoing, Plaintiff’s “motion for new trial and for an order to vacate the order granting the motion for summary judgment/adjudication” is denied.  

BWI is ordered to give notice of this ruling.

DATED:  February 1, 2024                            ________________________________

Hon. Rolf M. Treu

Judge, Los Angeles Superior Court