Judge: Teresa A. Beaudet, Case: 22STCV07425, Date: 2023-08-18 Tentative Ruling

Case Number: 22STCV07425    Hearing Date: August 18, 2023    Dept: 50

Superior Court of California

County of Los Angeles

Department 50

            Background

Plaintiff Lisa Hollis (“Plaintiff”) filed this action on March 1, 2022 against Defendant Cedars-Sinai Medical Center (“Defendant”). The Complaint alleges causes of action for (1) disability discrimination, (2) failure to provide reasonable accommodation, (3) failure to engage in a good faith interactive process, (4) failure to prevent discrimination, (5) retaliation, (6) wrongful failure to promote, (7) violation of Labor Code section 6401, (8) violation of Labor Code sections 6310 and 6311, (9) age discrimination, and (10) wrongful termination.

            Defendant now moves for an order granting summary judgment or, in the alternative, summary adjudication, as to the claims in Plaintiff’s Complaint. Plaintiff opposes.

In addition, Plaintiff moves to file under seal certain exhibits in support of Plaintiff’s opposition to Defendant’s motion for summary judgment or, in the alternative, summary adjudication. Defendant filed a notice of non-opposition to the motion.

Evidentiary Objections

The Court rules on the parties’ Joint Statement Regarding Evidentiary Objections as follows:

Plaintiff’s Objections:

Objection No. 1: overruled. As noted by Defendant, the objections target language in Defendant’s motion rather than the underlying cited evidence.

Objection No. 2: overruled

Objection No. 3: overruled

Objection No. 4: overruled

Objection No. 5: overruled

Defendant’s Objections:

Objection No. 1: sustained

Objection No. 2: sustained

Objection No. 3: overruled

Objection No. 4: sustained

Objection No. 5: sustained

Plaintiff’s Motion to Seal

Generally, court records are presumed to be open unless confidentiality is required by law. (Cal. Rules of Court, rule 2.550, subd. (c).) If the presumption of access applies, the court may order that a record be filed under seal “if it expressly finds facts that establish: (1) There exists an overriding interest that overcomes the right of public access to the record; (2) The overriding interest supports sealing the record; (3) A substantial probability exists that the overriding interest will be prejudiced if the record is not sealed; (4) The proposed sealing is narrowly tailored; and (5) No less restrictive means exist to achieve the overriding interest.” (Cal. Rules of Court, rule 2.550, subd. (d).)

In connection with the instant motion, Plaintiff moves to seal a compendium of “confidential” exhibits in support of Plaintiff’s opposition to Defendant’s motion for summary judgment, or in the alternative summary adjudication (herein, the “Records”).

In support of the motion to seal, Plaintiff submits the declaration of her counsel, who states that “[o]n or about September 25, 2022, the parties entered into a stipulation and

protective order to disclose and produce Confidential Materials.” (DeClue Decl., ¶ 2.) Plaintiff’s counsel indicates that “[s]oon thereafter, Defendant served Plaintiff with its confidential document production,” and “[o]n February 27, 2023, Defendant used those same various confidential exhibits for Plaintiff’s deposition.” (DeClue Decl., ¶¶ 3-4.) Plaintiff’s counsel states that “[o]n May 25, 2023, Plaintiff filed a Compendium of Exhibits in support of her opposition to Defendant Cedar-Sinai medical Center’s…motion for summary judgement or in the alternative motion for summary adjudication, which contained various exhibits that were marked as confidential by Defendant and that were used by Defendant for Plaintiff’s deposition.” (DeClue Decl., ¶ 5.)

            Plaintiff asserts that here, there is an overriding interest that supports sealing the Records, because sealing is the only way to guarantee that jurors or potential jurors will not be able to access the Records. But Plaintiff does not cite to any legal authority demonstrating that this constitutes an “overriding interest” for purposes of California Rules of Court, rule 2.550.

            Plaintiff asserts that “[b]ecause there is no other way to ensure that the [Records] will not be seen by jurors or potential jurors, there is a substantial probability that the overriding interest against the [Records] being seen will be prejudiced if the [Records] are not sealed. Indeed, jurors or potential jurors could easily go on the online docket for the case if they become curious or interested and see a list of documents filed in the case that are readily available to download. The only way to ensure that this cannot happen is for the record to be sealed.” (Mot. at p. 4:24-5:2.) But this assumes that jurors will disobey admonitions given by the Court concerning conducting research on the subject of the trial. In addition, as Plaintiff has submitted the Records in connection with her opposition to Defendant’s motion for summary judgment or, in the alternative, summary adjudication, Plaintiff will presumably be relying on such records at trial.

Based on the foregoing, the Court does not find that Plaintiff has demonstrated an “overriding interest that overcomes the right of public access to the record” under California Rules of Court, rule 2.550, subdivision (d).

Based on the foregoing, Plaintiff’s motion to seal is denied.

Defendant’s Motion for Summary Judgment or, in the Alternative, Summary Adjudication

A.    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. 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.” (Code Civ. Proc., § 437c, subd. (f)(1).)

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).)

B.    Allegations of the Complaint

In the Complaint, Plaintiff alleges that Defendant first hired her as a Media Specialist in the Photo and Graphics unit of its Medical Media Department in 1998. (Compl., ¶ 8.) At the time Defendants hired Plaintiff she was 35 years old. (Compl., ¶ 8.) As a Media Specialist Plaintiff photographed hospital events, community outreach health events sponsored by Defendant, and headshots studio portraits of physicians, nurses, and employees. (Compl., ¶ 8.)

Throughout her employment with Defendants, Plaintiff suffered and continues to suffer from Rheumatoid Arthritis, which causes Plaintiff joint pain, swelling, and affects her major life activities, i.e., walking, standing, and ability to perform certain work assignments and other manual activities. (Compl., ¶ 11.) Due to her disability, Plaintiff requested assistance from Defendants to help her carry photo equipment on the days when it was necessary for her to haul equipment from one location to another. (Compl., ¶ 12.) However, instead of discussing Plaintiff’s duties and limitations with her to assess whether a reasonable accommodation was possible, Defendant simply denied Plaintiff’s request for accommodation, even though Defendant regularly provided assistance to other employees to carry heavy photography equipment. (Compl., ¶ 12.)

In or around January 2016, Plaintiff again complained to Defendant’s Manager Moore explaining that she was experiencing joint pain related to her rheumatoid arthritis. As a result, Plaintiff requested that she be allowed to have additional time between photoshoots as an

accommodation. (Compl., ¶ 13.) However, Manager Moore again rejected Plaintiff’s accommodation request without discussion or interactive process. (Compl., ¶ 13.)

In or around May 2016, Plaintiff requested Defendant purchase an inexpensive camera strap to support her wrist and a lighter weight camera bag as accommodation for her disability. (Compl., ¶ 15.) However, Defendant denied Plaintiff’s request without engaging in the

interactive process. (Compl., ¶ 15.) Plaintiff alleges that “during a meeting when Plaintiff’s hand was bandaged due to a flare up of her rheumatoid arthritis, Manager Moore looked at Plaintiff’s bandaged hand and in front of the entire staff callously uttered, ‘Lisa’s been boxing this weekend,’…” (Compl., ¶ 16.)

Plaintiff alleges that Defendant also began to deny Plaintiff work opportunities that were

offered to her co-workers because of her disability. (Compl., ¶ 17.) Plaintiff alleges that for example, “Plaintiff’s co-workers, Bill Pollard and Al Cuizon, were both sent to an all-expenses paid Photoshop training seminar in San Diego that was never offered to Plaintiff… Defendants also provided Plaintiff’s co-workers with preferential work equipment that they never offered Plaintiff, such as new Apple iPads and other work equipment.” (Compl., ¶ 17.)

In or around July 2017, during a meeting with Defendant’s Manager April Moore and Director Kelly Carolipio, Defendant told Plaintiff that they could no longer accommodate her four-day work weeks and further required Plaintiff to get a new evaluation from her doctor

regarding her disability. (Compl., ¶ 18.) In October 2017, Plaintiff provided Defendant with a new doctor note after a reevaluation pursuant to Defendant’s request. (Compl., ¶19.) In the note, Plaintiff’s doctor requested the following accommodations for Plaintiff’s disability: four-day work week to allow Plaintiff one day off work for infusion treatments for her arthritis, and accommodations related to Plaintiff’s medical restriction of no standing for longer than one hour at a time. (Compl., ¶ 19.)

Approximately two months later, Defendant’s Human Resources Representative and Director Kelly Carolipio informed Plaintiff that Defendant was denying Plaintiff’s four-day work week accommodations request, and that she was expected to start working five days a week starting January 1, 2018. (Compl., ¶ 20.)  Plaintiff explained to Director Carolipio her need for that temporary accommodation for at least until April 2018, explaining that she was in the middle of a six-month treatment regimen (which she was already three-months into) for weekly infusions, which made her very weak. (Compl., ¶ 20.) Despite her pleas for reasonable accommodation, Director Carolipio denied Plaintiff the four-day work week temporary accommodation request. (Compl., ¶ 20.)

In or around January 21, 2018, Defendant assigned Plaintiff a photoshoot of over 400 individual sites with a deadline of two weeks to complete, requiring many hours of standing, transportation, and set up of heavy equipment. (Compl., ¶ 22.) Two days into her newly-assigned photoshoot, Plaintiff suffered a flare-up of her rheumatoid arthritis inflammation in her hands, knees, and wrists. (Compl., ¶ 25.) Plaintiff immediately sought medical treatment and her doctor determined that her flare-up was a result of the heavy work assignment Defendant had recently ordered Plaintiff to do. (Compl., ¶ 25.) Plaintiff’s doctor had to place her on a temporary medical leave. (Compl., ¶ 25.)

On February 7, 2018, after Plaintiff’s flare-up, Defendant sent Plaintiff a response letter to her original request for accommodations submitted to Defendant in October 2017. (Compl., ¶ 26.) Plaintiff alleges that “Defendants fraudulently backdated their response letter to December 27, 2017 to cover up for their failure to accommodate and engage in a timely good faith interactive process.” (Compl., ¶ 26, emphasis omitted.) Defendant’s letter stated that Plaintiff would be permitted to rest five minutes after shooting photographs for one hour. (Compl., ¶ 26.)

In approximately October 2018, Plaintiff returned to work from medical leave. (Compl., ¶ 28.) Plaintiff’s doctor ordered that Defendant not require Plaintiff to lift or stand for long periods at a time upon returning from medical leave, but Defendant again denied Plaintiff’s medical accommodations request. (Compl., ¶ 28.)

Plaintiff further alleges that “[u]pon her return to work rom [sic] medical leave, Plaintiff learned that Defendants had hired another much younger employee to perform Plaintiff’s duties, Rachel Porter, who immediately demonstrated animosity towards Plaintiff and her disability. Shortly thereafter, despite being a new per-diem employee, Rachel Porter and another co-worker, Bill Pollard, were promoted to Senior Photo Specialists with full-time benefits. As result, Plaintiff was the only photographer on Defendants’ staff left with the title of Photo Specialist—the lowest tier position amongst photographers in the department—despite Plaintiff’s many additional years of experience when compared to Rachel Porter.” (Compl., ¶ 29.)

Plaintiff alleges that on or around March 12, 2020, Defendant granted the photographers as well as the entire department where Plaintiff worked work-from-home status due to the COVID-19 outbreak. (Compl., ¶ 30.) Plaintiff worked from home until August 2020 when Defendant again began performing studio headshots. (Compl., ¶ 30.)

Upon her return from working from home, Defendants moved Plaintiff’s studio to a different office that required her to work in a small office space photographing anywhere up to 16 to 20 hospital employees per session. (Compl., ¶ 30.) Because of her medical condition that made Plaintiff auto-immune compromised, Plaintiff became increasingly concerned about her well-being since the employees, including clinicians, nurses, and others performing patient care during the pandemic had to remove their masks during the photoshoots that Plaintiff performed. (Compl., ¶ 31.) Defendant continued to schedule Plaintiff to work on campus during the pandemic while the other photographers continued to almost exclusively work from home. (Compl., ¶ 31.)

 As result, Plaintiff’s doctor wrote a letter to Defendant addressing her safety concerns regarding exposure to COVID and the danger it created due to Plaintiff’s auto-immune condition, which Plaintiff then turned in to Defendant’s Human Resources Department. (Compl., ¶ 32.) However, Defendant again ignored Plaintiff’s doctor’s letter and instead demanded that Plaintiff work more days of photoshoots on campus. (Compl., ¶ 32.) Plaintiff decided to speak to the new Director, Andrew Featherston, about her concerns. (Compl., ¶ 32.) Plaintiff alleges that instead of addressing Plaintiff’s safety and health concerns, Director Featherston dismissively told Plaintiff that: “I don’t know how to manage this. I have to be on campus a lot, but this is the job. This is your, job Lisa. You need to be a team player.” (Compl., ¶ 32.)

On December 23, 2020, without regards to her known auto-immune condition and disability, Defendant demanded that Plaintiff work a 12-hour day in the studio taking photo headshots during a surge of patients being admitted to the hospital with COVID. (Compl., ¶ 33.) Plaintiff alleges that as result of the repeated exposure to the virus at work, Plaintiff contracted COVID. (Compl., ¶ 33.)

Plaintiff alleges that in or around May 2021, Defendant asked their employees, including Plaintiff, to complete an employee opinion survey of their immediate management. (Compl., ¶ 34.) Defendant told Plaintiff and other employees on repeated occasions that the survey would be strictly confidential. (Compl., ¶ 34.) In the survey, Plaintiff complained about Supervisor Andrew Featherston being unapproachable and dismissive when she or other employees raised concerns, including safety concerns related to exposure to COVID in Defendant’s workplace. (Compl., ¶ 34.) Plaintiff alleges that in or around July 2021, in an attempt to humiliate Plaintiff during a department meeting, Supervisor Featherston discussed Plaintiff’s survey comments in the meeting contrary to Defendant’s previous assurances that employees’ responses to the survey would be confidential. (Compl., ¶ 35.) Several days later, on August 6, 2021, Supervisor Featherston emailed Plaintiff requesting a phone meeting to discuss the upcoming Fiscal Year 2022. (Compl., ¶ 36.) Plaintiff alleges that during the meeting, which was also attended by Defendant’s Human Resources Representative, Featherston falsely told Plaintiff that her position was being “eliminated effective immediately.” (Compl., ¶ 36.) Plaintiff alleges that “Defendants targeted her for termination because her disability, age, ongoing requests for accommodations, and in retaliation of her complaints.” (Compl., ¶ 37.)

C.    Pre-March 2019 Allegations

In the motion, Defendant asserts that Plaintiff’s pre-March 2019 allegations are time-barred.

Before suing for violation of FEHA, a plaintiff must file a timely and sufficient administrative complaint with the California Department of Fair Employment and Housing (“DFEH”) and receive a “right to sue” notice. (Gov. Code, §§ 12960, 12965, subd. (b).)¿Under the former version of Government Code section 12960,¿a person claiming to be aggrieved by an alleged unlawful practice¿under FEHA¿was obligated to file an administrative complaint with the DFEH within one year from¿the date the alleged unlawful practice¿or refusal to cooperate with FEHA occurred.¿(Former Gov. Code §12960, subd. (d), amended eff. Jan. 1, 2020, by Stats. 2019, ch. 709 (Assembly Bill No. 9).)¿Government Code section 12960 now requires administrative complaints to be filed with the DFEH within three years from the date of the alleged unlawful practice or the date the refusal to cooperate occurred. (See Gov. Code, § 12960, subd. (e)(5).) 

Defendant notes that Plaintiff filed her DFEH complaint on March 1, 2022. (Hashmall Decl., ¶ 2, Ex. 4.) Defendant asserts that “[u]nder the new three-year FEHA limitations period, [Plaintiff’s] DFEH Complaint was timely as to purported unlawful practices that occurred on or after March 1, 2019, and untimely as to any purported unlawful practice that occurred before that date.” (Mot. at p. 16:14-16.)

As set forth above, the Complaint contains allegations concerning events that occurred both before and after March 1, 2019. Defendant moves for “an order entering summary adjudication on each cause of action in the Complaint pursuant to Code of Civil Procedure section 437c(f)(1) on the grounds that there are no genuine issues as to any material fact, and that Cedars is entitled to judgment as a matter of law on each cause of action.” (See Notice of Motion.) Pursuant to Code of Civil Procedure section 437c, subdivision (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.” The Court does not find that Defendant has demonstrated that any of Plaintiff’s causes of action should be completely disposed of as untimely, to the extent that is what Defendant seeks. Rather, Defendant argues that Plaintiff’s “pre-March 2019 allegations are time-barred.” (Mot. at p. 16:17.)

D.    First and Ninth Causes of Action for Disability Discrimination and Age Discrimination

Plaintiff’s first cause of action is for disability discrimination, and Plaintiff’s ninth cause of action is for age discrimination. Plaintiff alleges that “her disability was a substantial motivating factor in Defendants’ decision to take adverse employment action and/or terminate Plaintiff.” (Compl., ¶ 41.) Plaintiff also alleges that “her age was a substantial motivating factor in Defendants’ decision to take adverse employment action against Plaintiff…” (Compl., ¶ 100.)

“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,[1] 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.)  

Defendant asserts that Plaintiff cannot establish that Defendant acted with a discriminatory motive. Defendant provides evidence that the challenges associated with taking headshots during the pandemic caused Plaintiff’s supervisor, Mr. Featherston, to look into potential solutions. (Featherston Decl. ¶ 12.)[2] Mr. Featherston learned about a company named “Iris,” which sells photo booths that automatedly generate studio-quality headshots. (Ibid.) Mr. Featherston states that “I shared the idea of automated headshots with my supervisor, Jennifer Fagen, who held the position of Executive Director of Brand Strategy and Creative Services. Ms. Fagen said that Cedars should pursue the automated technology, and that, by eliminating the individual who we were paying to take headshots, my Department could afford to hire a graphic designer that could design digital, print, packaging, and environmental promotional materials for our projects.” (Featherston Decl., ¶ 14.) Mr. Featherston states that “[a]s a result, Cedars made the decision to eliminate Ms. Hollis’ position.” (Featherston Decl., ¶ 15.)

Defendant paid $24,000 for an automated photo booth, which it now uses for headshots. (Featherston Decl. ¶ 15.) Defendant states that its employees can enter the photo booth, scan a QR code with their phones, enter their personal information, and then have their photo taken (or multiple photos taken), all without ever touching the photo booth or interacting with another person. (Featherston Decl. ¶ 15.) Mr. Featherston states that “[d]ue to the elimination of Ms. Hollis’ position, I had available resources within my departmental budget to hire a graphic designer, Justin Walker.” (Featherston Decl. ¶ 16.)

Defendant cites to Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th 1718, 1732, where the Court of Appeal noted that “[i]t is clear that in the circumstances of a particular case the depressed condition of [the employer’s] . . . business and its business decision to reduce its staff with the result that [the employee’s] services [are] no longer needed can be good cause for discharging the employee, and can also support an inference of good faith, and of the absence of an improper motive, in the discharge decision.” (Internal quotations and citations omitted.)

In the opposition, Plaintiff asserts that Defendant acted with discriminatory intent as to both discrimination causes of action. Plaintiff cites to Guz v. Bechtel National, Inc., supra, 24 Cal.4th at page 355, where the California Supreme Court noted that “[w]hile the plaintiff’s prima facie burden is not onerous, he must at least 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…” (Internal quotations and citation omitted.)

Plaintiff asserts that Defendant “promoting Porter over [Plaintiff] indicates a preference for a younger, non-disabled individual,” and that “instead of terminating Porter, the newest member of the team, [Defendant] chose to terminate [Plaintiff]. This also highly suggests that [Plaintiff’s] age and disability played a major role in that decision.” (Opp’n at p. 13:24-27.)[3] Plaintiff also asserts that “[Defendant] did not offer and refused to consider [Plaintiff] for the open, vacant position of Graphic Designer even though she was not only qualified for the position, but she also had successfully managed and supervised the Graphic Designers and their work for over 15 years.” (Opp’n at p. 13:28-14:2.) Plaintiff asserts that this also suggests that Defendant’s proffered reasons for terminating Plaintiff are discriminatory and based on her age and disability.

Plaintiff states in her supporting declaration that “[o]n or about 1998, I was diagnosed with rheumatoid arthritis. This was right around the same time I began working with Defendant.” (Hollis Decl., ¶ 9.) Plaintiff also states that “[w]hen I first worked with Rachel Porter, I was able to see that she was significantly younger than me. I was already 55 years old at the time and she appeared to be in her mid to late 30s. I also discussed her past photography experience with her and discovered that I had significantly more years of experience than her as a photographer.” (Hollis Decl., ¶ 27.) In addition, Plaintiff states that “[d]espite my 15 years of directly supervising the Graphic Designers and performing Graphic Design work myself, and despite being fully qualified for the Graphic Designer Position, including being familiar and extensively using graphic design software, Defendant did not offer or consider me for the position. On August 6 or 9, 2021, Defendant terminated me.” (Hollis Decl., ¶ 23.) Plaintiff states that “[w]hen I was terminated, I was told by Featherston that Rachel Porter was staying on as a Photographer at Cedars.” (Hollis Decl., ¶ 30.)

Plaintiff also cites to the following testimony from her deposition: “Q…did your salary ever go down after you became a salary -- a salaried employee in the marketing department.

A. No. But the opportunity to make a higher salary and be promoted was not offered to me.

Q. Would you apply for a promotion? A. They were just given. Q. Did you ever apply for a promotion? A. No, but the people who were promoted didn’t apply either…Q. And did you have an understanding as to what types of positions you could promote to from the specialist position you were in? A. I didn’t know that there was an opportunity to be promoted until everyone was promoted except me. Q. When you say, ‘everyone was promoted,’ who are you referring to? A. Bill Pollard and Rachel Porter.” (Milon Decl., ¶ 3, Ex. 1 (Hollis Depo.) at pp. 175:1-21.)[4] Plaintiff also cites to the following testimony from Mr. Featherston’s deposition: “Q…Did Rachel Porter ever have a full-time position at Cedars-Sinai that wasn’t the senior photo specialist position? A I think I moved her directly from the per diem role into the senior photo specialist role. I am pretty sure.” (Milon Decl., ¶ 4, Ex. 2 (Featherston Depo.) at p. 56:10-15.)

In the reply, Defendant asserts that “[Plaintiff] and Porter had entirely different duties when Porter was promoted.” (Reply at p. 9:14.) In his declaration, Mr. Featherston states that “[d]uring the time I worked with her, Ms. Hollis’ responsibilities largely involved taking headshots of other Cedars employees and performing other tasks that did not involve Ms. Hollis being present at photo shoots.” (Featherston Decl., ¶ 6.) Mr. Featherson states that “Mr. Pollard and Ms. Porter were both handling major photography assignments.” (Featherston Decl., ¶ 10.) But as set forth above, Plaintiff states that when she was “terminated, [she] was told by Featherston that Rachel Porter was staying on as a Photographer at Cedars,” and that Plaintiff had “significantly more years of experience than her as a photographer.” (Hollis Decl., ¶¶ 27, 30.)

            Defendant also contends in the motion that “Plaintiff asserted an age discrimination claim, but she stated in a sworn discovery response that her discrimination claims are based solely on her disability.” (Mot. at p. 19, fn. 4.) Defendant notes that Form Interrogatory No. 202.1(b) states, inter alia, “identify each characteristic (for example, gender, race, age, etc.) on which you base your claim or claims of discrimination.” (Hashmall Decl., ¶ 3, Ex. 5, p. 64:4-5.) In her responses, Plaintiff responded, “Disability Discrimination.” (Id. at p. 64:22.)  

In the opposition, Plaintiff asserts that this was an inadvertent error. In addition, Form Interrogatory No. 202.1(c) provides, “state all facts upon which you base each claim of discrimination.” (Hashmall Decl., ¶ 3, Ex. 5, p. 64:6.) Plaintiff notes that her response to this interrogatory provides, inter alia, that “[u]pon her return to work from medical leave, Responding Party learned that Defendants had hired another much younger employee to perform Responding Party’s duties, Rachel Porter…” (Id. at p. 70:13-14.) Plaintiff’s response further that “[i]n effect, Defendants had decided to discriminatorily retain the much younger and non-disabled employee, Rachel Porter…” (Id. at p. 72:22-23.) Plaintiff asserts that she thus “gave [Defendant] the requisite facts to establish her Age Discrimination claim that she pled in her Complaint thereby putting [Defendant] on notice of her claims and contentions.” (Opp’n at p. 15:8-11.)

            Based on the foregoing, the Court finds that Plaintiff has raised a triable issue of material fact as to whether Defendant acted with a discriminatory motive. The Court thus denies Defendant’s motion for summary adjudication as to the first and ninth causes of action.

E.     Fourth Cause of Action for Failure to Prevent Discrimination

Defendant asserts that “[b]ecause Hollis’ disability discrimination and age discrimination claims fail, Hollis’ claim for failure to prevent discrimination is untenable.” (Mot. at p. 22:27-28.) As set forth above, the Court denies Defendant’s motion for summary adjudication as to Plaintiff’s discrimination causes of action. Thus, the Court likewise denies Defendant’s motion for summary adjudication as to the fourth cause of action for failure to prevent discrimination.

F.     Fifth Cause of Action for Retaliation

In the fifth cause of action for retaliation, Plaintiff alleges that “Defendants, and each of them, were substantially motivated to retaliate against Plaintiff and other employees because they were disabled and/or injured, they took a medical leave and/or requested reasonable accommodation(s).” (Compl., ¶ 69.)

“[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., supra, 36 Cal.4th at p. 1042.) Protected activity includes opposing “any practices forbidden” under FEHA or filing a complaint, testifying, or assisting in any proceeding under FEHA. (Gov. Code, § 12940, subd. (h).)¿¿ 

In the motion, Defendant argues that “the only possible adverse employment action that [Plaintiff] suffered was the elimination of her position in 2021. The decision to eliminate Hollis’ position was based upon [Defendant’s] business needs in relation to automated headshots…There was no discriminatory or retaliatory reason for the decision…The timing of events underscores this point. [Defendant] had worked with [Plaintiff] regarding accommodations for decades. Yet [Defendant] eliminated her position shortly after the COVID-19 Pandemic began, prompting Featherston to look into new solutions for headshots.” (Mot. at p. 23:16-25.)

As discussed above, Mr. Featherston states in his declaration that “[t]he challenges associated with taking headshots during the pandemic caused me to look into potential solutions. In so doing, I learned about a company named ‘Iris,’ which sells photo booths that automatedly generate studio-quality headshots.” (Featherston Decl., ¶ 12.) As discussed, Mr. Featherston states that “I shared the idea of automated headshots with my supervisor, Jennifer Fagen...Ms. Fagen said that Cedars should pursue the automated technology, and that, by eliminating the individual who we were paying to take headshots, my Department could afford to hire a graphic designer that could design digital, print, packaging, and environmental promotional materials for our projects.” (Featherston Decl., ¶ 14.) “As a result, Cedars made the decision to eliminate Ms. Hollis’ position.” (Featherston Decl., ¶ 15.)

In the opposition, Plaintiff asserts that “[Defendant] promoted Porter in 2019 over [Plaintiff], despite [Plaintiff] performing well and [Plaintiff] having more experience than Porter. Because [Plaintiff’s] replacement was hired during [Plaintiff’s] protected medical leave, there is a causal link between [Plaintiff] taking a leave being both denied a promotion and ultimately losing her job to Porter. Put another way, had [Plaintiff] not gone on a protected leave, Porter would not have been hired and promoted over [Plaintiff], and surely [Plaintiff] would not have been terminated in 2021 instead of Porter, who stayed on as the Photo Specialist.” (Opp’n at p. 16:19-25.) Plaintiff notes that Mr. Featherston testified, “Q Who did Ms. Hollis’s duties while she was out, before you started -- or before she came back from this leave? A I was able to bring on a temp, Rachel Porter, as a photographer to fill in for some of her duties.” (Milon Decl., ¶ 4, Ex. 2 (Featherston Depo.) at p. 55:14-18.)

In the reply, Defendant asserts that Plaintiff’s argument that “had [Plaintiff] not gone on protected leave, Porter would not have been hired and promoted [and retained] over [Plaintiff]” is pure speculation. The Court agrees that this argument is speculative.

Plaintiff also asserts that “[i]n terms of Hollis’ pay reduction in 2019, [Defendant] reduced [Plaintiff’s] pay due its unilateral decision to only allow her to work 8-hour days, 4 days a week, rather than [Plaintiff’s] requested 4-day, 10 hour schedule. As such, there is a direct link between [Plaintiff’s] requested accommodation and her pay reduction.” (Opp’n at p. 16:26-28.) The Court notes that it is unclear from the opposition what evidence Plaintiff is relying on in support of this assertion. To the extent Plaintiff is relying on her Exhibit 42, Defendant asserts in its evidentiary objections that Plaintiff’s Exhibit 42 is incomplete, and provides a copy of the full email chain. Plaintiff states in the joint statement regarding evidentiary objections that “[w]ithout waiving objections, Plaintiff does not oppose allowing the entire email exchange contained in Defendant’s Exhibit C be permitted for the purposes of this Motion.” Exhibit C to Defendant’s counsel’s supplemental declaration includes, inter alia, a November 7, 2019 email from Mr. Featherston stating, inter alia, “I have confirmed with Lisa that she would like to transition to a 4-day work week, or 32 hours. How can we make this happen?” (Suppl. Hashmall Decl., ¶ 6, Ex. C.) Defendant thus asserts that it accommodated Plaintiff’s own request.

            Based on the foregoing, the Court finds that Defendant has demonstrated that Plaintiff’s fifth cause of action for retaliation is without merit, and that Plaintiff has failed to raise a triable issue of material fact thereto. Thus, the Court grants the motion for summary adjudication as to the fifth cause of action.

G.    Sixth Cause of Action for Wrongful Failure to Promote

In support of the sixth cause of action for wrongful failure to promote, Plaintiff alleges that “Defendants, and each of them, were motivated to take adverse employment action against Plaintiff by refusing to promote Plaintiff and other employees on grounds that violate California public policy. It is against the public policy of the State of California for an employer to violate the Fair Employment and Housing Act, namely discriminate against an employee because of their disability, retaliate against an employee because they took a medical leave, or because they requested an accommodation.” (Compl., ¶ 75.)

In the motion, Defendant asserts that Plaintiff’s sixth cause of action fails for the same reason as her discrimination and retaliation claims. As set forth above, the Court denies Defendant’s motion for summary adjudication as to Plaintiff’s causes of action for disability discrimination and age discrimination. Thus, the Court likewise denies Defendant’s motion for summary adjudication as to the sixth cause of action for wrongful failure to promote.

H.    Second Cause of Action for Failure to Provide Reasonable Accommodation

In the second cause of action, Plaintiff alleges that “Defendants failed to make reasonable accommodations for Plaintiff and other employees’ known disabilities and/or injuries.” (Compl., ¶ 48.) “Under section 12940, it is an unlawful employment practice ‘to fail to make reasonable accommodation for the known physical or mental disability of an applicant or employee’ unless the employer demonstrates doing so would impose an undue hardship. (§ 12940, subd. (m).) The essential elements of a failure to accommodate claim are: (1) the plaintiff has a disability covered by the FEHA; (2) the plaintiff is a qualified individual (i.e., he or she can perform the essential functions of the position); and (3) the employer failed to reasonably accommodate the plaintiff's disability.” (Wilson v. County of Orange (2009) 169 Cal.App.4th 1185, 1192.)

In the motion, Defendant argues that “[Plaintiff] asserts that [Defendant] resumed scheduling her to take headshots after she worked from home for several months during the pandemic…But, during the relevant time period, performing headshots was an essential function of [Plaintiff’s] job.” (Mot. at p. 24:26-28.) Defendant asserts that it “went to great lengths to accommodate [Plaintiff]…But, although [Plaintiff] apparently wished to become a work-from-home headshot photographer, the law does not impose on [Defendant] the obligation to implement such an unfeasible arrangement.” (Mot. at p. 25:5-6.)

In his declaration, Mr. Featherston states that “[d]uring the time I worked with her, Ms. Hollis’ responsibilities largely involved taking headshots of other Cedars employees…” (Featherston Decl., ¶ 6.) Defendant also cites to the following testimony from Plaintiff’s deposition: “Q Okay. And so, just so I understand, you got a cart to carry photo equipment, correct? A. Yes. Q. You also got assistance, when available, on your location shoots? A. That’s what it says. Q. You were not assigned to photo shoots that would require the use of a ladder, right? A. That’s what it says, yes. Q. You got your 4/10 schedule with Fridays off, right? A. Yes.

(Hashmall Decl., ¶ 8, Ex. 10 (Hollis Depo.) at pp. 150:19-151:5.) Plaintiff also cites to the following testimony from Plaintiff’s deposition: “Q. So what had gone from a primarily photography-focused job that required you to be on set, on location shooting would now be more focused on head shots and administrative tasks; is that right? A. The DAM, yes, and the studio head shots twice a week.” (Id. at p. 151:19-24.)

            In the opposition, Plaintiff asserts that “[Defendant] failed to accommodate [Plaintiff] in 2019 when it did not allow her to work her requested schedule of 4 days a week 10 hours a day. A modified work schedule is a reasonable accommodation…Instead, for no apparent reason, [Defendant] only allowed her to return 4 days a week, but for only 8 hours, thereby cutting her hours and salary by 20%.” (Opp’n at p. 18:5-8.) But as discussed above, Defendant provides evidence of a November 7, 2019 email from Mr. Featherston stating, inter alia, “I have confirmed with Lisa that she would like to transition to a 4-day work week, or 32 hours. How can we make this happen?” (Suppl. Hashmall Decl., ¶ 6, Ex. C.)

Plaintiff also asserts that “the evidence shows that in early 2018, [Defendant] directly violated her doctor’s restrictions…by forcing [Plaintiff] to return to work 5 days a week beginning January 2018. This violation of [Plaintiff’s] restriction led to [Plaintiff] suffering injuries and thus forcing her on leave.” (Opp’n at p. 18:11-14.) In her declaration, Plaintiff states that “[i]n response to my managers pressuring me to come back to work five days a week, I went to my doctor who gave me a note on October 20, 2017 reaffirming that due to my health issues, I required one day off from work per week.” (Hollis Decl., ¶ 16.)

Exhibit 38 to Plaintiff’s declaration is a letter from Smita R. Gupta, MD stating, inter alia, that “Ms. Lisa Hollis is under my medical care for rheumatoid arthritis and requires work accommodations due to her medical condition. Although she is otherwise qualified for her position as a photographer, she is limited in her ability to stand for longer than one hour while carrying heavy lenses and cameras as well as transporting and setting up heavy equipment because of pain and swelling in her knees, shoulders and wrists due to her rheumatoid arthritis. She needs to continue using a rolling camera bag, dolly and a lighter weight camera body and lenses for all her camera shoots. Furthermore, she requires one day off from work per week for physician and treatment appointments.” (Hollis Decl., ¶ 16, Ex. 38.) Plaintiff states that “I submitted this note in and also informed management that I was in the middle of a six-month training regimen for weekly infusions and re-requested that I be allowed to work 4 days a week instead of five. Defendant rejected my request and despite my clear and unequivocal doctor’s note, I returned to five days a week at the start of January 2018.” (Hollis Decl., ¶ 16.)

As set forth above, Defendant asserts that Plaintiff’s pre-march 2019 allegations are time-barred. Both parties discuss the continuing violations doctrine. Under the continuing violation doctrine, “an employer is liable for actions that take place outside the limitations period if these actions are sufficiently linked to unlawful conduct that occurred within the limitations period.” (Yanowitz v. L'Oreal USA, Inc., supra, 36 Cal.4th at p. 1056.) To determine the applicability of the continuing violations doctrine to FEHA claims, courts use the three-prong test developed in Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, 823. (Acuna v. San Diego Gas & Electric Co. (2013) 217 Cal.App.4th 1402, 1412.) An employer’s persistent unlawful conduct is a continuing violation if the employer’s actions are “(1) sufficiently similar in kind . . . ; (2) have occurred with reasonable frequency; (3) and have not acquired a degree of permanence.” (Richards v. CH2M Hill, Inc., supra, at p. 823 [internal citation omitted].)  

Plaintiff asserts that “[h]ere, the failure to accommodate Hollis’ doctor’s restrictions are similar to the other pattern of hostility that they treated Hollis with from the time that the department was reorganized in 2015. After Hollis switched departments, her new management was hostile to her restrictions and accommodation requests and took a series of actions that ultimately led to her termination.” (Opp’n at p. 18:22-25.) In her declaration, Plaintiff states that “[i]n March 2016, I requested accommodation of a rolling camera bag, a wrist rest and a lighter camera. In response to my accommodation request, Ms. April Moore stated sarcastically ‘are you shooting that much?’” (Hollis Decl., ¶ 11.) Plaintiff also states that “[i]n July 2017, despite no issues with my work schedule of working 4 days a week, 10 hours per day, and despite that I had doctor’s restrictions restricting me from working five days per week, Defendant decided to reevaluate my work restriction by returning me to a five-day workweek.” (Hollis Decl., ¶ 14.) Plaintiff states that “April Moore never provided me with a reason as to why Defendant needed me to be working a 5 day workweek, even after I asked for an explanation.” (Hollis Decl., ¶ 14.)

In addition, as set forth above, Plaintiff states that she submitted an October 20, 2017 doctor’s note and re-requested that she be allowed to work four days a week instead of five, but such request was rejected. (Hollis Decl., ¶ 16.)

Based on the foregoing, the Court finds that Plaintiff has raised a triable issue of fact as to whether the continuing violation doctrine applies here. Accordingly, the Court also finds that Plaintiff has raised a triable issue of fact as to her failure to provide reasonable accommodation cause of action. Thus, the Court denies the motion for summary adjudication as to the second cause of action.

I.      Third Cause of Action for Failure to Engage in a Good Faith Interactive Process

In the third cause of action, Plaintiff alleges that “Defendants failed to engage in a timely, good-faith, interactive process with Plaintiff and other employees to determine effective reasonable accommodations for their known disabilities.” (Compl., ¶ 55.) Pursuant to Government Code section 12940, subdivision (n), it is an unlawful employment practice “[f]or an employer or other entity covered by this part to fail to engage in a timely, good faith, interactive process with the employee or applicant to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee or applicant with a known physical or mental disability or known medical condition.”

In the motion, Defendant asserts that “[a]s with [Plaintiff’s claim for failure to provide reasonable accommodations, her only timely allegation against [Defendant] is her assertion that [Defendant] resumed scheduling her to take headshots after she worked from home for several months during the COVID-19 Pandemic...But Hollis had the opportunity to discuss her concerns with her supervisor, Featherston; she merely takes issue with the outcome of that discussion.” (Mot. at p. 26:16-20, citing Plaintiff’s Complaint, emphasis omitted.)

Defendant cites to paragraph 32 of the Complaint, which alleges that “Plaintiff’s doctor wrote a letter to Defendants addressing her safety concerns regarding exposure to COVID and the danger it created due to Plaintiff’s auto-immune condition, which Plaintiff then turned in to Defendants’ Human Resources Department. However, Defendants again ignored Plaintiff’s doctor’s letter and instead demanded that Plaintiff work more days of photoshoots on campus, thus putting her in additional danger. Plaintiff decided to speak to the new Director, Andrew Featherston, about her concerns. Instead of addressing Plaintiff’s safety and health concerns, Director Featherston dismissively told Plaintiff that: ‘I don’t know how to manage this. I have to be on campus a lot, but this is the job. This is your, job Lisa. You need to be a team player.’” (Compl., ¶ 32.)

But as noted by Plaintiff, Defendant does not present any evidence to support that any exchange occurred. Defendant’s argument concerning the third cause of action does not cite to any evidence in support of the assertion that the third cause of action is baseless.

Based on the foregoing, the Court does not find that Defendant has met its initial burden of demonstrating that the third cause of action is without merit. Thus, the Court denies the motion for summary adjudication as to the third cause of action.

J.      Tenth Cause of Action for Wrongful Termination in Violation of Public Policy

In the tenth cause of action, Plaintiff alleges that “Defendants, and each of them, were motivated to terminate and/or take other adverse employment action against Plaintiff and other employees on grounds that violate California public policy. It is against the public policy of the State of California for an employer to violate the Fair Employment and Housing Act, namely discriminate against an employee because of their disability, retaliate against an employee because they took a medical leave, filed a workers compensation claim, or because they requested an accommodation.” (Compl., ¶ 106.)

Defendant asserts that Plaintiff’s “wrongful termination claim—which she expressly bases upon purported FEHA violations—fails for the same reasons that her FEHA discrimination and retaliation claims fail.” (Mot. at p. 25:24-26.) As set forth above, the Court denies Defendant’s motion for summary adjudication as to Plaintiff’s discrimination causes of action. Thus, the Court likewise denies the motion for summary adjudication as to the tenth cause of action for wrongful termination.

K.    Seventh Cause of Action for Violation of Labor Code Section 6401

In the seventh cause of action, Plaintiff alleges that “Defendants compelled Plaintiff to work in conditions that they knew were highly dangerous to her health and safety in violation of State orders, rules, and regulations, including but not limited to Labor Code Section 6401…” (Compl., ¶ 81.) Labor Code section 6401 provides that “[e]very employer shall furnish and use safety devices and safeguards, and shall adopt and use practices, means, methods, operations, and processes which are reasonably adequate to render such employment and place of employment safe and healthful. Every employer shall do every other thing reasonably necessary to protect the life, safety, and health of employees.”

Defendant asserts that the seventh cause of action fails because there is no “private right of action” under Labor Code section 6401. In support of this assertion, Defendant cites to Cal. Correctional Supervisors Org. v. Dep't of Corr. (2002) 96 Cal.App.4th 824, 831, where the Court of Appeal noted that Labor Code section 6401 and other referenced statutes “do not vest the judiciary with the power to act as an overseer of legislative and executive decisions about what is or is not reasonable safety in a given workplace.”[5]

Plaintiff does not respond to this point in the opposition, nor does she appear to discuss her Labor Code section 6401 cause of action.

Based on the foregoing, the Court finds that Defendant has demonstrated that Plaintiff’s seventh cause of action for violation of Labor Code section 6401 is without merit, and that Plaintiff has failed to raise a triable issue of material fact thereto. Thus, the Court grants the motion for summary adjudication as to the seventh cause of action.

L.     Eighth Cause of Action for Violation of Labor Code Sections 6310 and 6311

In the eighth cause of action, Plaintiff alleges that “Defendants engaged in an unlawful pattern and practice by retaliating and/or discriminating against Plaintiff and other employees for complaining internally and/or to a government agency about Defendants’ unlawful practice of maintaining unsafe working conditions and practices, and/or for refusing to perform their work under unsafe working conditions, as discussed above.” (Compl., ¶ 90.) 

Labor Code section 6310, subdivision (a)(1) provides that “[n]o person shall discharge or in any manner discriminate against any employee because the employee has done any of the following: (1) Made any oral or written complaint to the division, other governmental agencies having statutory responsibility for or assisting the division with reference to employee safety or health, their employer, or their representative.”[6] Plaintiff cites to Lujan v. Minagar (2004) 124 Cal.App.4th 1040, 1046, where the Court of Appeal held that “section 6310 applies to employers who retaliate against employees whom they believe intend to file workplace safety complaints.”

Defendant argues that the cause of action for violation of Labor Code section 6310 fails because Plaintiff did not make a “complaint,” but “merely discussed her ‘concerns’ that COVID-19 put her in ‘danger.’” (Mot. at p. 27:23-24.) Defendant cites to paragraph 32 of the Complaint, which, as set forth above, alleges that “Plaintiff’s doctor wrote a letter to Defendants addressing her safety concerns regarding exposure to COVID and the danger it created due to Plaintiff’s auto-immune condition, which Plaintiff then turned in to Defendants’ Human Resources Department. However, Defendants again ignored Plaintiff’s doctor’s letter and instead demanded that Plaintiff work more days of photoshoots on campus, thus putting her in additional danger. Plaintiff decided to speak to the new Director, Andrew Featherston, about her concerns.” (Compl., ¶ 32.)

Plaintiff argues that her “internal complaints to Featherston directly and during the Cedars’ employee survey were specifically related to the health and safety of the public, after Defendant’s failed to comply with its own safety initiatives related to COVID.” (Opp’n at p. 19:26-28.) In her declaration, Plaintiff states that “[d]uring the start of Covid, my entire team began working from home. After we returned from working from, Cedars moved my regular studio to a different office that required me to work in a small office space photographing anywhere up to 16 to 20 hospital employees per session. Many of the employees would not follow the Cedars health guidelines to keep their masks on. I complained about this to my boss Andrew Featherston. Featherston acted annoyed at me and was dismissive of my legitimate safety concerns.” (Hollis Decl., ¶ 28.) Plaintiff also cites to the following testimony from Mr.

Featherston’s deposition: “Q And in – in there, Ms. – Ms. Hollis mentioned something to you about having safety concerns about COVID? A I don’t remember specifically what she said. But, yes, that was clearly communicated.” (Milon Decl., ¶ 4, Ex. 2 (Featherston Depo.) at p. 80:11-14.)

Defendant also asserts that “nothing happened to [Plaintiff] as a result of discussing these concerns with [Defendant]. To the contrary, the decision to eliminate her position was economically driven and legitimate.” (Mot. at p. 27:24-26.) In the opposition, Plaintiff counters that “Featherston brought up [Plaintiff’s] complaints during a team meeting, and made a threatening comment to [Plaintiff] in front of her team members and then terminated [Plaintiff] only a few weeks later. Featherston singled out [Plaintiff] as he chose to keep the less-experienced Porter, thus indicating that Hollis’ termination was tied to her complaints about Featherston’s failure to follow safety measures.” (Opp’n at p. 20:8-12.)

In her declaration, Plaintiff states that “[i]n May 2021, Defendant conducted a survey for employees to give feedback to their managers. Defendant told its employees that the survey was confidential. I believed that the survey was confidential. In the survey, I expressed concern over how her manager, Andrew Featherston addressed safety issues, or rather, how he failed to address legitimate safety concerns about employees failing to follow Covid protocols.” (Hollis Decl., ¶ 21.) Plaintiff states that “Mr. Andrew Featherston addressed my ‘confidential’ comments at a team meeting in front of all of my co-workers and colleagues. I was shocked that Mr. Andrew Featherston was discussing the contents of what I thought was a confidential survey in front of all my co-workers. I was extremely embarrassed because I had made it known to others that I was very concerned with Covid. Then Mr. Andrew Featherston sarcastically stated in front of my team that if I had concerns, I should go to Human Resources. I interpreted this as a direct

threat to my job.” (Hollis Decl., ¶ 22.)

Based on the foregoing, the Court finds that Plaintiff has raised a triable issue of material fact as to her claim for violation of Labor Code section 6310.

Lastly, Labor Code section 6311 provides, inter alia, that “[n]o employee shall be laid off or discharged for refusing to perform work in the performance of which this code, including Section 6400, any occupational safety or health standard, or any safety order of the division or standards board will be violated, where the violation would create a real and apparent hazard to the employee or their fellow employees.” In the motion, Defendant asserts that Plaintiff’s “theory is untethered from the allegations in her Complaint. She does not allege that she ‘refus[ed] to perform work’ in relation to a ‘real and apparent hazard.’” (Mot. at p. 28:7-8.) Indeed, the Complaint does not appear to contain any such allegations, and Plaintiff does not respond to this point in the opposition.

However, as set forth above, “[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.” (Code Civ. Proc., § 437c, subd. (f)(1).) The eighth cause of action is for violation of both Labor Code section 6310 and Labor Code section 6311. As set forth above, the Court finds that Plaintiff has raised a triable issue as to the Labor Code section 6310 claim. Thus, the Court denies Defendant’s motion for summary adjudication as to the eighth cause of action.

Conclusion

Based on the foregoing, Plaintiff’s motion to seal is denied.  

In addition, based on the foregoing, Defendant’s motion for summary judgment is denied. Defendant’s motion for summary adjudication is granted as to the fifth and seventh causes of action. Defendant’s motion for summary adjudication is denied as to the first, second, third, fourth, sixth, eighth, ninth, and tenth causes of action. Defendant is ordered to give notice of this order. 

DATED:  August 18, 2023                             ________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court