Judge Teresa A. Beaudet, Case BC695541 2023-03-07 Tentative Ruling

YULIANA VALDOVINOS,

Plaintiff,

vs.

ADIR INTERNATIONAL, LLC dba LA

CURACAO, et al.

Defendants.

Case No.:

BC695541

Hearing Date:

March 7, 2023

Hearing Time: 8:30 a.m.

[TENTATIVE] ORDER RE:

DEFENDANTS ADIR INTERNATIONAL, LLC dba CURACAO and ERIC VITAL RUBIO’S MOTION FOR

SUMMARY ADJUDICATION

On February 27, 2018, Plaintiff Yuliana Valdovinos, an individual, on behalf of herself and all others similarly situated (“Plaintiff”) filed this action against Defendants Adir International, LLC dba Curacao (“Adir”), Alex Hernandez (“Hernandez”), and Eric Vital Rubio (“Rubio”). The Complaint asserts eighteen causes of action.

Adir and Rubio (jointly, “Defendants”) now move for summary adjudication with respect to Plaintiff’s first cause of action for discrimination based on disability/medical condition, fifth cause of action for retaliation, seventeenth cause of action for wrongful discharge in violation of public policy, and the prayer for punitive damages. Plaintiff opposes.[1]

The Court rules on the parties’ Joint Statement Re: Plaintiff’s Revised Evidentiary Objections to Defendant’s Separate Statement of Material Facts in Support of Pending Motion for Summary Adjudication as follows:

Objection No. 1: sustained as to “after an investigation into Adir’s credit referral program revealed certain irregularities,” overruled as to the remainder

Objection No. 18: sustained as to “due to the investigation of her credit referral program abuse,” 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.” (Code Civ. Proc., § 437c(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(p)(2).)

In the Complaint, Plaintiff alleges that in August of 2006, she became employed by defendants as a Sales Associate at Adir’s store located at 5980 Pacific Blvd., Huntington Park, California 90255. (Compl., ¶ 18.) During the course of her employment, Plaintiff was one of the top sellers from 2011-2012, and she became a group leader of the Cosmetics Department. (Compl., ¶¶ 19-20.) Plaintiff was selected as part of the Rising Star Group, and she chose to take management training to become a supervisor whenever there was an opening. (Compl., ¶ 21.)

In or around September 2016, Adir’s cosmetic store’s staff went down from 8 employees to 3 employees, which led to an excessive workload on Plaintiff. (Compl., ¶ 30.) Since the time of the staff shortage (from around 2016), Plaintiff was forced to carry out physical activity, including but not limited to, receiving huge pallets of merchandise. (Compl., ¶ 32.) Plaintiff’s lower back became sore due to the repetitive bending and physical exertion of unloading pallets. (Compl., ¶ 38.)

On or around November 4, 2016, Plaintiff was diagnosed with vaginitis, lower back pain, headache, and stress. (Compl., ¶ 39.) Because of her ongoing medical condition, on or around November 23, 2016, Plaintiff took stress medical leave, and a few days later filed a worker’s compensation claim due to back injury. (Compl., ¶ 41.)

On or around February 3, 2017, Plaintiff returned to work from her medical leave. (Compl., ¶ 47.) Soon after Plaintiff clocked-in that day, Plaintiff was escorted to the “Loss Prevention Room.” (Compl., ¶ 48.) Rubio, the supervisor of loss prevention, started questioning Plaintiff about the use of “Referral Cards.” (Compl., ¶¶ 48-49.) Rubio told Plaintiff that it was against Adir policy to list family members as a reference when opening new accounts. (Compl., ¶ 51.) Plaintiff told Rubio that she used her mother’s information for the reference process so that customers could get a $50 discount. (Compl., ¶ 53.) Rubio stated that he had allegedly found 15 transactions under Plaintiff’s name where she had used her mother’s information for customers to get a discount. (Compl., ¶ 54.) Rubio threatened that he was going to call the police and send Plaintiff and her mother to jail. (Compl., ¶ 56.)

Plaintiff alleges that Rubio intimidated and coerced Plaintiff to write a written statement of her alleged wrongdoing. (Compl., ¶ 57.) On or around February 7, 2017, Plaintiff’s manager Martha Jenkins handed Plaintiff her termination letter and a letter with her last paycheck. (Compl., ¶¶ 48, 64.) Plaintiff alleges she believes defendants labeled her as a “troublemaker” because she made complaints to defendants of understaffing and failure to get proper duty-free rest and meal breaks, brought a worker’s compensation claim, and requested accommodation for her disability or perceived disability. (Compl., ¶ 65.) Plaintiff alleges she was “wrongfully terminated for a pretext in violation of public policy.” (Compl., ¶ 65.)

B. First Cause of Action for Discrimination Based on Disability/Medical Condition

Defendants assert that Plaintiff’s first cause of action fails because Plaintiff cannot create a triable issue that the legitimate business reasons for her termination were pretextual.

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

California applies the burden-shifting formula set forth in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 802,[2] under which a plaintiff must first establish a prima facie case of discrimination by showing that: (1) he or she was a member of a protected class, (2) that he or she was qualified for and performing competently in the position 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.)

Defendants assert that the evidence is undisputed that Adir had legitimate, non-discriminatory reasons for terminating Plaintiff’s employment.[3] Defendants provide evidence that Adir gave its customers incentives for referring another individual to apply for credit with Adir. (Andrade Decl., ¶ 4.) The referring customer received a gift certificate, and the new customer received a discount on their purchase after applying for credit. (Andrade Decl., ¶ 4.) Adir’s former Director of Credit and Loyalty Marketing, Magda Andrade, reviewed Plaintiff’s sales report in or around November 2016. (Andrade Decl., ¶¶ 1, 7.) Ms. Andrade observed that between October and November 2016, Plaintiff had signed up 24 new customers, and that all of the customers were referred by the same individual, Margarita Valencia. (Andrade Decl., ¶ 7.) Ms. Andrade called the first ten accounts with credit applications completed by Plaintiff that listed Ms. Valencia as the referring customer, and was able to reach and speak with approximately five customers. (Andrade Decl., ¶ 8.) When Ms. Andrade asked these customers who had referred them for credit, the customers said that no one had specifically referred, them, and also denied knowing Ms. Valencia. (Andrade Decl., ¶ 8.)

Ms. Andrade also confirmed that Plaintiff’s address matched Ms. Valencia’s address and that Plaintiff’s emergency contact information listed Ms. Valencia as Plaintiff’s mother. (Andrade Decl., ¶ 8.) Ms. Andrade concluded that Plaintiff had falsified customer credit applications by listing her mother as the referral source. (Andrade Decl., ¶ 9.) Adir had mailed a total of 24 gift certificates to Plaintiff’s address (for a total of $600), 6 of which had been redeemed at the time of Ms. Andrade’s investigation. (Andrade Decl., ¶ 9.)

Defendants also provide evidence of the following testimony from Ms. Valencia’s deposition: “Q. So you don’t recall telling any of the names that I just read that they should apply for a credit account with Curacao; correct? A. I don't recall. Q. And do you ever recall telling Yuliana that -- that you had referred those people to apply for a credit account with -- with Curacao? A. I don’t recall.” (Chung Decl., ¶ 9, Ex. G (Valencia Depo.) at p. 69:14-21.) Defendants also indicate that Plaintiff testified as follows: “Q There are instances where you put that your mother referred a customer to Curacao when in fact your mother never made the referral, correct? A…Well, I don’t remember exactly.” (Chung Decl., ¶ 8, Ex. F (Valdovinos Depo., Vol. II) at p. 105:3-12.)

In addition, Rubio and Ms. Andrade state that at the time they initiated their investigation into Plaintiff, they were not aware of any stress leave requested or taken by Plaintiff, and were not aware that Plaintiff was suffering from any disability or medical condition. (Andrade Decl., ¶ 12; Rubio Decl., ¶ 8.)

Based on the foregoing, Court finds that Defendants have presented evidence regarding a

a legitimate nondiscriminatory reason for the adverse employment action, i.e., Plaintiff’s termination.

In the opposition, Plaintiff asserts that her termination was pretextual. Among other arguments, Plaintiff asserts that her satisfactory job performance and lengthy tenure with no discipline suggests pretext. Plaintiff indicates that in August of 2006, she became employed by defendants as a Cashier at Adir’s store located at 5980 Pacific Blvd., Huntington Park, California 90255. (Valdovinos Decl., ¶ 2.) During the course of her employment, Plaintiff was one of the top sellers from 2011-2012 because she reached the yearly sales goal. (Valdovinos Decl., ¶ 3.) Towards the end of 2007, Plaintiff was transferred to the Cosmetics Department and became a group leader of the Department. (Valdovinos Decl., ¶¶ 8-9.) Plaintiff was selected as part of the “Rising Star Group” management training to become a supervisor and passed the management training examination. (Valdovinos Decl., ¶¶ 10-11.) Plaintiff also became a top sales associate in 2015. (Valdovinos Decl., ¶ 12.)

Plaintiff also asserts that there was an inadequate investigation, which suggests pretext. Plaintiff cites to Mendoza v. Western Medical Center Santa Ana (2014) 222 Cal.App.4th 1334, 1344, where the Court of Appeal in that case found that “[t]here [was] sufficient evidence in the record for the jury to conclude that a substantial motivating reason for Mendoza’s firing was his report of sexual harassment.” The Mendoza Court noted that “Mendoza’s expert witness testified that there were numerous shortcomings in the investigation conducted by defendants following Mendoza’s complaint. (See Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 278–283 [100 Cal. Rptr. 3d 296] [inadequate investigation is evidence of pretext].) The lack of a rigorous investigation by defendants is evidence suggesting that defendants did not value the discovery of the truth so much as a way to clean up the mess that was uncovered when Mendoza made his complaint.” (Ibid.)

Plaintiff asserts that here, she was given no opportunity to explain her version of Adir’s fraud allegation against her. Plaintiff indicates that on or around February 3, 2017, she returned to work from her medical leave. (Valdovinos Decl., ¶ 47.) That day, Rubio started questioning Plaintiff about the use of referral cards. (Valdovinos Decl., ¶¶ 48-49.) Plaintiff asserts that Rubio accused Plaintiff and her mother of committing fraud, that Rubio intimidated and coerced Plaintiff to write a written statement of Plaintiff’s alleged wrongdoing, and that Rubio forced Plaintiff to make a video statement on his cell phone. (Valdovinos Decl., ¶¶ 56, 60, 63.) After this meeting, Plaintiff was escorted out of the store, told she was suspended, and was asked to come back on February 7, 2017. (Valdovinos Decl., ¶ 69.) On or around February 7, 2017, Plaintiff was provided with a termination letter and her last pay check. (Valdovinos Decl., ¶ 71.)

Plaintiff also asserts that the link between Plaintiff’s disability and her termination is strong. Plaintiff indicates that on or around November 4, 2016, she visited AltaMed for a check up and was diagnosed with vaginitis, lower back pain, headache and stress. (Valdovinos Decl., ¶ 37.) On or around November 20, 2016, Plaintiff called her supervisor Ines Fuentes to inform her about Plaintiff’s back pain and stress. (Valdovinos Decl., ¶ 38.) Plaintiff also informed Ms. Fuentes that Plaintiff would soon be visiting a physician and may be required to take some time off to treat her disability. (Valdovinos Decl., ¶ 38.) Plaintiff was placed on “medical stress leave” from November 23, 2016 until February 2, 2017. (Valdovinos Decl., ¶ 40.) On November 23, 2016, Plaintiff handed the doctor’s note regarding Plaintiff’s medical leave of absence to Plaintiff’s general manager, Benjamin Estrada, around 1:00 p.m. (Valdovinos Decl., ¶¶ 27, 40.) Plaintiff asserts that on November 23, 2016 at 2:23 p.m., the same day that she had earlier submitted her medical documentation to Mr. Estrada, and three days after Plaintiff spoke to Ms. Fuentes about her medical condition, Ms. Andrade asked Rubio to investigate Plaintiff. Plaintiff cites to a November 23, 2016 email from Ms. Andrade to Hernandez and Rubio, sent at 2:23 p.m., in which Ms. Andrade states, inter alia, “I know we are all super busy, but I just found a rampart [sic] abuse of the referral program by associate YULIANA VALDOVINOS VALENCIA…” (White Decl., ¶ 8, Ex. F.)

In the reply, Defendants assert that “Plaintiff does not plainly and concisely dispute any material fact proffered by Defendants.” (Reply at p. 5:11-12.) But Plaintiff’s response to Defendants’ separate statement does dispute material facts proffered by Defendants and cites to supporting evidence.

Based on the foregoing, the¿Court finds that Plaintiff has¿presented sufficient evidence to¿show that a triable issue of fact exists as to whether Defendant’s reasons for Plaintiff’s termination were pretextual. Thus, the Court denies summary adjudication of Plaintiff’s first cause of action.

C. Fifth Cause of Action for Retaliation and Seventeenth Cause of Action for Wrongful Discharge in Violation of Public Policy

“[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.) Under the three-part burden-shifting framework laid out in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, “the employee must establish a prima facie case of unlawful discrimination or retaliation. Next, the employer bears the burden of articulating a legitimate reason for taking the challenged adverse employment action. Finally, the burden shifts back to the employee to demonstrate that the employer’s proffered legitimate reason is a pretext for discrimination or retaliation.” (Lawson v. PPG Architectural Finishes, Inc. (2022) 12 Cal.5th 703, 708 [internal citations omitted].)

In addition, “[t]o prevail on a claim for wrongful termination in violation of public policy, a plaintiff must show that (1) the plaintiff was employed by the defendant, (2) the defendant discharged the plaintiff, (3) a violation of public policy was a motivating reason for the discharge, and (4) the discharge harmed the plaintiff.” (¿Ferrick v. Santa Clara University (2014) 231 Cal.App.4th 1337, 1343¿.)

Defendants assert that Plaintiff’s causes of action for retaliation and wrongful discharge in violation of public policy also fail because Plaintiff cannot create a triable issue that the legitimate business reasons for her termination were pretextual. As set forth above, the Court finds that Plaintiff has¿presented sufficient evidence to¿show that a triable issue of fact exists as to whether Defendant’s reasons for Plaintiff’s termination were pretextual. Thus, the Court denies summary adjudication of Plaintiff’s fifth and seventeenth causes of action.

Lastly, Defendants assert that “[s]ummary adjudication of Plaintiff’s prayer for punitive damages should be granted for two reasons: (1) Plaintiff cannot create a triable issue that Eric Rubio was an officer, director, or managing agent of Adir, and (2) Plaintiff cannot create a triable issue that an officer, director, or managing agent of Adir had actual knowledge of and/or ratified Rubio’s conduct.” (Mot. at p. 14:9-12.) Defendants argue in the motion that “Plaintiff has no basis, much less clear and convincing evidence, to seek punitive damages against Adir.” (Mot. at p. 16:18-19.) Thus, Defendants’ arguments pertaining to Plaintiff’s punitive damages claim concern Adir. In the prayer for relief, Plaintiff seeks “Punitive Damages where applicable.” (Compl., p. 44:14-15.)

Pursuant to Civil Code section 3294, subdivision (a), “[i]n an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.”

Pursuant to Civil Code section 3294, subdivision (b), “[a]n employer shall not be liable for damages pursuant to subdivision (a), based upon acts of an employee of the employer, unless the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice. With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation.” In White v. Ultramar¿(1999) 21 Cal.4th 563, 566-567, the California Supreme Court concluded that “the Legislature intended the term ‘managing agent’ [under¿section 3294, subdivision (b)] to include only those corporate employees who exercise substantial independent authority and judgment in their¿corporate decisionmaking so that their decisions ultimately determine corporate policy.”

In support of the first argument that Rubio is not an officer, director, or managing agent of Adir, Defendants cite to paragraph 9 of Rubio’s Declaration, which provides, “I have two direct reports. I am not involved in drafting or creating Adir’s policies or any rules with respect to personnel and/or Loss Prevention. I do not have any independent authority to make decisions concerning the termination or discipline of Adir’s associates.” (Rubio Decl., ¶ 9.) Rubio also testified that he does not consider himself an executive level employee. (Chung Decl., ¶ 10, Ex. H (Rubio Depo.) at p. 41:15-18.)

In the opposition, Plaintiff asserts that “punitive damages are a jury determination.” (Opp’n at p. 20:4.) However, 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).) In addition, Plaintiff’s memorandum of points and authorities in support of the opposition does not contain any argument pertaining to whether Rubio was an officer, director, or managing agent of Adir, or whether an officer, director, or managing agent of Adir had actual knowledge of and/or ratified Rubio’s conduct. Rather, Plaintiff cites to her Additional Material Fact (“AMF”) No. 70, in which Plaintiff asserts that certain individuals can be deemed as the “managing agents.”[4]

As to Rubio, Plaintiff notes that he testified that he supervises store staff as well as LP staff “[i]n terms of anything to do with loss prevention.” (White Decl., ¶ 23, Ex. CC (Rubio Depo.) p. 28:21-25.) Plaintiff also notes that Rubio testified that he supervises more than 200 store staff members in total. (Id. at pp. 29:25-30:15.) But as Defendants note, “in amending section 3294, subdivision (b), the Legislature intended that principal liability for punitive damages not depend on employees’ managerial level, but on the extent to which they exercise substantial discretionary authority over decisions that ultimately determine corporate policy. Thus, supervisors who have broad discretionary powers and exercise substantial discretionary authority in the corporation could be managing agents. Conversely, supervisors who have no discretionary authority over decisions that ultimately determine corporate policy would not be considered managing agents even though they may have the ability to hire or fire other employees. In order to demonstrate that an employee is a true managing agent under section 3294, subdivision (b), a plaintiff seeking punitive damages would have to show that the employee exercised substantial discretionary authority over significant aspects of a corporation’s business.” (White v. Ultramar, supra, 21 Cal.4th at pp. 576-577.) The Court does not find that Plaintiff has demonstrated how Rubio exercised substantial discretionary authority over significant aspects of Adir’s business.

As to the remaining individuals that Plaintiffs argue “can be deemed as the managing agents,” (Plaintiffs’ AMF 70), the Court does not find that Plaintiff has demonstrated (or argued) how such individuals “exercise substantial independent authority and judgment in their corporate decisionmaking so that their decisions ultimately determine corporate policy.” (White v. Ultramar, supra, 21 Cal.4th at pp. 566-567.)

Next, Defendants assert that there is no evidence that any of the alleged misconduct by Rubio was reported to an officer, director, or managing agent of Adir. Rubio states that after his interview with Plaintiff, Rubio drafted a report concerning his investigation, and submitted the report to his manager. (Rubio Decl., ¶ 7, Ex. B.) Defendants assert that the report makes no mention of any misconduct by Rubio. (Ibid.)

Defendants also note that Plaintiff submitted an email to an HR Supervisor named Clelia Ventura on February 4, 2017 retracting her handwritten statement and asserting that she felt coerced to sign the statement. (Chung Decl., ¶ 6, Ex. D; Ventura Decl., ¶ 2.) Ms. Ventura is the only individual copied on the email. (Ibid.) In addition, Ms. Ventura indicates that she placed the February 4, 2017 email in Plaintiff’s file and did not forward the email to any executives, corporate officers, or directors of the company. (Ventura Decl., ¶¶ 3-6.) Ms. Ventura states that “[a]s an HR Supervisor, I was in a support role for Adir’s Human Resources department. I did not have any authority to draft, create, or set policies with respect to Adir’s operations, management, or personnel.” (Ventura Decl., ¶ 6.) The Court does not find that Plaintiff has shown that a director, officer, or managing agent of Adir authorized or ratified any alleged oppressive, fraudulent, or malicious conduct directed by Rubio towards Plaintiff.

Based on the foregoing, the Court finds that Defendant has met its burden of demonstrating that Plaintiff’s claim for punitive damages is without merit as to Adir, and that Plaintiff has failed to raise a triable issue of material fact thereto.

Based on the foregoing, Defendants’ motion for summary adjudication is denied as to Plaintiff’s first, fifth, and seventeenth causes of action. Defendants’ motion for summary adjudication of Plaintiff’s punitive damages claim is granted as to Adir.

[1]As an initial matter, Defendants note that the proof of service attached to Plaintiff’s opposition does not indicate that Hernandez was served with the opposition. Pursuant to Code of Civil Procedure section 1005, subdivision (c), “all papers opposing a motion and all reply papers shall be served…and reasonably calculated to ensure delivery to the other party or parties not later than the close of the next business day after the time the opposing papers or reply papers, as applicable, are filed. This subdivision applies to the service of opposition and reply papers regarding motions for summary judgment or summary adjudication, in addition to the motions listed in subdivision (a).” Because the instant motion was filed by Defendants (not Hernandez), and because Plaintiff’s proof of service indicates that the opposition was served on Defendants’ counsel, the Court declines to disregard the opposition as requested by Defendants. However, the Court admonishes Plaintiff that the service of any¿future filings must comply with the Code of Civil Procedure.

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

[3]Defendants indicate that “[f]or purposes of this motion only, Adir does not contest Plaintiff’s prima facie case.” (Mot. at p. 10:15.)

[4]The Court notes that pursuant to California Rules of Court, rule 3.1350, subdivision (f)(3), “[i]f the opposing party contends that additional material facts are pertinent to the disposition of the motion, those facts must be set forth in the separate statement. The separate statement should include only material facts and not any facts that are not pertinent to the disposition of the motion. Each fact must be followed by the evidence that establishes the fact. Citation to the evidence in support of each material fact must include reference to the exhibit, title, page, and line numbers.” Plaintiff does not cite to any legal authority demonstrating that she may include arguments and legal authority appropriate for a memorandum of points and authorities in her separate statement in opposition to the instant motion. Moreover, Plaintiffs’ Memorandum of Points and Authorities in support of the opposition is 20 pages, and pursuant to. Cal. Rules of Court, rule 3.1113, subdivision (d), “[i]n a summary judgment or summary adjudication motion, no opening or responding memorandum may exceed 20 pages.”

Superior Court of California

County of Los Angeles

Department 50