Judge Theresa M. Traber, Case 20STCV02032 2023-03-09 Tentative Ruling

Judge: Theresa M. Traber, Case: 20STCV02032, Date: 2023-03-09 Tentative Ruling

Case Number: 20STCV02032 Hearing Date: March 9, 2023 Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE: March 9, 2023 TRIAL DATE: May 16, 2023

CASE: Hoda Hassan v. County of Los Angeles

CASE NO.: 20STCV02032

MOTION FOR SUMMARY JUDGMENT, OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION

MOVING PARTY: Defendant County of Los Angeles.

RESPONDING PARTY(S): Plaintiff Hoda Hassan.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

This is an action for employment discrimination that was filed on January 16, 2020. Plaintiff alleges that she was subjected to extensive discrimination over a period of more than 30 years on the basis of her national origin, gender, age, and disability.

Defendant moves for summary judgment, or, in the alternative, summary adjudication of all causes of action.

TENTATIVE RULING:

Defendant’s Motion for Summary Judgment is DENIED.

Defendant’s alternative Motion for Summary Adjudication is DENIED.

DISCUSSION:

Motion for Summary Judgment

Defendant moves for summary judgment against Plaintiff. As Defendant has not demonstrated that it is entitled to summary adjudication of each cause of action asserted against it for the reasons addressed below, Defendant is not entitled to summary judgment.

Accordingly, Defendant’s Motion for Summary Judgment is DENIED.

Motion for Summary Adjudication

Defendant moves in the alternative for summary adjudication of all causes of action.

Legal Standard

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party can show evidentiary support for a pleading or claim and, if not, to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) Code of Civil Procedure Section 437c(c) “requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) “The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.” (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67, citing FPI Development, Inc. v. Nakashima (1991) 231 Cal. App. 3d 367, 381-82.)

As to each claim as framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. (Code Civ Proc. § 437c(p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520.) 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.) The lack of opposition by a plaintiff is not grounds to grant a motion for summary judgment if a defendant cannot meet their initial burden of proof. (See Thatcher v. Lucy Stores, Inc. (2000) 79 Cal.App.4th 1081, 1087.)

Once the defendant has met that burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

Defendant’s Evidentiary Objections to Plaintiff’s Declaration

Defendant raises 248 separate boilerplate objections to the Declaration of Plaintiff Hoda Hassan in support of the opposition to the motion for summary judgment. In so doing, Defendant has objected to, essentially, the entirety of the declaration except for Plaintiff’s confirmation of her identity, age, and competence to testify. It is not remotely apparent to the Court under what conditions these 248 boilerplate objections would be illuminating or useful to the Court in any way with respect to the adjudication of this dispute.

In any event, Defendant’s objections as to relevance, prejudice, lack of foundation, speculation, improper expert opinion, and contradiction of prior deposition testimony are not well-taken as they go to the weight of the evidence presented, not its admissibility. Further, hearsay is not a valid objection in this context, given that nonhearsay evidence supporting the statements to which Defendant objects could be offered at trial. (Sweetwater Union High School Dist. v. Gilbane Building Co. (2019) 6 Cal.5th 931, 947-948.). Defendant’s objections are therefore OVERRULED. The Court also admonishes Defendant to consider whether raising a scattershot attack of largely immaterial objections augments the Court’s ability to efficiently resolve this matter, rather than hinders it.

Defendant’s Evidentiary Objections to the Declaration of Helena Wise

Defendant also raises 48 similarly boilerplate objections to the Declaration of Helena Wise in support of the opposition to this motion. Once again, Defendant has objected to nearly the entire contents of the declaration. Defendant’s objections as to relevance, prejudice, lack of foundation, speculation, lack of authentication, and best evidence rule are not well-taken as they go to the weight of the evidence presented, not its admissibility. In particular, Defendant’s objection regarding the alleged lack of authentication of Plaintiff’s Exhibit A is overruled, as Attorney Wise authenticates the document in the testimony to which Defendant objects. Further, hearsay is not a valid objection in this context, given that nonhearsay evidence supporting the statements to which Defendant objects could be offered at trial. (Sweetwater Union High School Dist. v. Gilbane Building Co. (2019) 6 Cal.5th 931, 947-948.). Defendant’s objections are therefore OVERRULED.

Defective Separate Statement

Defendant identifies four issues in its separate statement. Issue No. 1 challenges the first cause of action, No.3 challenges the sixth cause of action, and No. 4 challenges the seventh cause of action. Departing from this approach, Issue No. 2 challenges the second, third, fourth, and fifth causes of action together. California Rule of Court 3.1350(d) requires that a Separate Statement of Undisputed Material Facts in support of a motion “separately identify . . . each cause of action, claim for damages, issue of duty, or affirmative defense that is the subject of the motion.” (Cal. Rules of Court 3.1350(d)(1)(A).) Issue No. 2 is not in compliance with this provision, and the Court would be within its discretion to refuse to consider this issue or deny the motion outright. Nevertheless, in the interest of an adjudication of the central issues of the case, the Court will overlook this defect, as the Separate Statement does identify the causes of action at issue with sufficient clarity to put the Court and Plaintiff on notice that these causes of action are in dispute.

Statute of Limitations

Defendant contends that it is entitled to summary judgment as to all of Plaintiff’s claims because they are barred by the statute of limitations.

To pursue a claim for a violation of FEHA, an employee must exhaust their administrative remedies with the DFEH by filing a complaint within a statutorily proscribed time from the date upon which the alleged unlawful practice occurred. (Gov. Code § 12960(b), (d).) At the time the DFEH Complaint was filed on January 17, 2019, the statute of limitations on these claims was one year. Assembly Bill 9 extended that period to three years as of January 1, 2020, but this amendment is not retroactive. (A.B. 9, 2019 Cal. Stats. Ch. 709 § 3.) However, the continuing violations doctrine allows liability for unlawful employer conduct occurring outside the statute of limitations if it is sufficiently connected to unlawful conduct within the limitations period. (Richards v. CH2m Hill, Inc. (2001) 26 Cal.4th 798, 802.)

Defendant contends that each of Plaintiff’s causes of action fail because they are barred by the one-year statute of limitations, but does not raise this affirmative defense in its Separate Statement of Undisputed Material Fact, as required by the California Rules of Court Rule 3.1350(d)(1)(A). The Golden Rule of Summary Adjudication is “if it is not set forth in the separate statement, it does not exist.” (United Community Church v. Garcin (1991) 231 Cal.App.3d 327, 337 [italics in original].) The Court therefore refuses to consider this argument further.

First Cause of Action: Harassment

Defendant moves for summary adjudication on Plaintiff’s first cause of action for harassment.

To prevail on a claim of harassment via a hostile work environment under the Fair Employment and Housing Act, an employee must show that (1) they are a member of a protected class; (2) that they were subjected to unwelcome harassment; (3) that the harassment was based on the employee’s protected status; (4) the harassment unreasonably interfered with the employee’s work performance by creating an intimidating, hostile, or offensive work environment; and (5) defendants are liable for the harassment. (Gov. Code § 12940(a).) The complained-of conduct must be sufficiently severe or pervasive to alter the conditions of employment to create a work environment that qualifies as hostile or abusive to an employee because of their protected status. (Gov. Code § 12940(j)(1).)

Defendant contends that Plaintiff identified only two instances of conduct which could be considered harassment in her deposition, neither of which concern individuals identified in the First Cause of Action. However, Defendant makes no effort either in the moving papers or in the Separate Statement to address Plaintiff’s claim that she was subjected to false allegations that she lacks communication skills and was treated by managers as if she were a mute. (See Complaint ¶ 19.) The scope of the issues in a motion for summary judgment or adjudication is delimited by the pleadings. (FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381-82.) As Defendant has failed to address all the allegations in the Complaint, Defendant has not demonstrated that this cause of action is without merit. Thus, the burden of proof does not shift to Plaintiff to demonstrate a triable issue of fact in this respect, and Defendant is not entitled to summary adjudication of this cause of action.

Accordingly, Defendant’s Motion for Summary Adjudication is DENIED as to the first cause of action.

Second Cause of Action: National Origin Discrimination

Defendant moves for summary adjudication of Plaintiff’s second cause of action for national origin discrimination.

The California Supreme Court has adopted the federal burden-shifting test for assessing employment discrimination claims. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354.) To establish a prima facie case of discrimination, the Plaintiff must show that (1) the employee is a member of a protected class; (2) the employee was qualified for the position sought or performing competently in the position held; (3) the employee suffered an adverse employment action; and (4) some other circumstance suggests a discriminatory motive. (See McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 802.) To challenge an employment discrimination claim on summary judgment, an employer must either show that one or more of the prima facie elements is lacking, or must offer a legitimate, nonretaliatory reason for the adverse employment action. (See Caldwell v. Paramount Unified Sch. Dist. (1995) 41 Cal.App.4th 189.) If the employer produces a legitimate reason for the adverse employment action, the presumption of discrimination “drops out of the picture,” and the burden shifts back to the employee to prove that the claimed legitimate reason is merely a pretext. (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4^th 1028, 1042.)

"In responding to the employer's showing of a legitimate reason for the complained-of action, . . . '" . . . the employee' "must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them 'unworthy of credence,' [citation], and hence infer 'that the employer did not act for the [ . . . asserted] non-discriminatory reasons.' [Citations.]" '" '" (McRae v. Department of Corrections & Rehabilitation (2006) 142 Cal.App.4th 377, 388-389.) "The plaintiff must do more than raise the inference that the employer's asserted reason is false. '[A] reason cannot be proved to be "a pretext for discrimination" unless it is shown both that the reason was false, and that discrimination was the real reason.' [Citation.] If the plaintiff produces no evidence from which a reasonable fact finder could infer that the employer's true reason was discriminatory, the employer is entitled to summary judgment. [Citation.]" (Hicks v. KNTV Television, Inc. (2008) 160 Cal.App.4th 994, 1003.)

"Although an employee's evidence submitted in opposition to an employer's motion for summary judgment is construed liberally, it 'remains subject to careful scrutiny.' [Citation.] The employee's 'subjective beliefs in an employment discrimination case do not create a genuine issue of fact; nor do uncorroborated and self-serving declarations.' [Citation.] The employee's evidence must relate to the motivation of the decision makers and prove, by nonspeculative evidence, 'an actual causal link between prohibited motivation and [discrimination].'" (Featherstone v. Southern California Permanente Medical Group (2017) 10 Cal.App.5th 1150, 1159.)

Defendant contends that this cause of action is without merit because (1) there was no adverse employment action; (2) there was no conduct related to Plaintiff’s race or national origin; and (3) Defendant had a legitimate, nondiscriminatory reason for its conduct.

1. Adverse Employment Action

Defendant contends that Plaintiff cannot demonstrate any adverse employment action taken against her. According to Defendant, Plaintiff was never suspended, demoted, reprimanded, discharged, or given a negative performance review. (Separate Statement of Undisputed Material Fact No. 56.) Instead, Defendant argues, Plaintiff was promoted in 2019 to a project manager in the Project Management division, a higher-ranking position with greater pay. (SSUMF Nos. 52-53.) Once again, Defendant fails to address all the allegations in the Complaint, as Defendant makes no effort to confront Plaintiff’s contentions regarding false allegations placed in her personnel file nor an alleged refusal to give Plaintiff credit for her project management duties. (See Complaint ¶ 29.) Further, Defendant skirts the gravamen of Plaintiff’s Complaint – that she was repeatedly denied promotions for which she was qualified. (Complaint, e.g., ¶ 28 [alleging that Defendant discriminated by, inter alia, “consistently bypassing HASSAN from promotion, while perpetuating favoritism of other over HASSAN even though HASSAN had proven she was better qualified than those Caucasians chosen over HASSAN”].) The fact that she was promoted in late 2019 many months after she filed her January 17, 2019 DFEH charge alleging a discriminatory pattern does nothing to negate her accusation of discriminatory denials of promotions. (Hassan Depo., 29:12-16; Defendant’s Exh. A, Discrimination Charge.)

As explained above, the scope of the issues in a motion for summary judgment or adjudication is defined by the pleadings. (FPI Development, Inc. v. Nakashima, 231 Cal.App.3d at pp. 381-382.) As Defendant has failed to address all of the allegations in the Complaint, Defendant has not demonstrated that this cause of action is without merit on the basis of an absence of an adverse employment action. (Hedayati v. Interinsurance Exch. of the Auto. Club (2021) 67 Cal. App. 5th 833, 846 [“If the defendant does not address an issue in a motion for summary judgment that has been raised in the plaintiff's complaint, it fails to meet its initial burden to show the plaintiff's action has no merit; the motion therefore fails to shift the burden to the plaintiff to oppose summary judgment.”].) Thus, the burden of proof does not shift to Plaintiff to demonstrate a triable issue of fact in this respect.

2. Conduct Related to Race or National Origin

Defendant contends that Plaintiff cannot demonstrate any conduct by Defendant’s employees related to her race or national origin. Once again, Defendant fails to address all allegations in the Complaint, this time by making no effort to address the allegations in the Complaint related to James Sparks and Jeff Howard with respect to this cause of action. (See Complaint ¶ 29.) Defendant contends that Plaintiff testified in her deposition that only Mike Soliman and Sree Kumar discriminated against her based upon her race. (See SSUMF No. 62.) In so doing, however, Defendant misstates Plaintiff’s testimony, as Plaintiff only stated that these individuals were responsible for preventing her promotion. (See, e.g., Deposition of Hoda Hassan p. 186:22-187:2.) Although Plaintiff’s inability to obtain a promotion is the central focus of this action, it is not the only allegation of misconduct asserted against Defendant. Because Defendant has not negated the element of discriminatory intent with respect to the alleged adverse actions of inserting false accusations in Plaintiff’s personnel file and depriving her of credit for the managerial duties she performed, as asserted in Paragraph 29, the Court cannot conclude that Defendant has satisfied its burden of negating the entirely of Plaintiffs’ discrimination claims. As Defendant has failed to address these allegations in the Complaint, Defendant has not demonstrated that this cause of action is without merit on the basis of an absence of conduct related to Plaintiff’s race or national origin. (Hedayati v. Interinsurance Exch. of the Auto. Club, supra, at p. 846.) Thus, the burden of proof does not shift to Plaintiff to demonstrate a triable issue of fact in this respect.

3. Legitimate Non-Discriminatory Reason

Defendant contends that, even if Plaintiff has established a prima facie case for discrimination, Defendant had a legitimate business reason for its conduct. Yet again, Defendant does not address all of the allegations in the Complaint, instead only stating that it had a legitimate reason for failing to promote Plaintiff to Civil Engineer because, implicitly, she was not the most qualified candidate. Defendant does not address any of the other conduct alleged in the Complaint to be adverse employment actions. Having failed to do so, Defendant has not shown that these discrimination claims are without merit as a matter of law. As a result, the burden of proof does not shift to Plaintiff to demonstrate a triable issue of fact in this respect.

As Defendant has failed to demonstrate that Plaintiff’s second cause of action is without merit for any of the reasons identified, Defendant is not entitled to summary adjudication of the second cause of action.

Accordingly, Defendant’s Motion for Summary Adjudication is DENIED as to the second cause of action.

Third Cause of Action: Gender Discrimination

Defendant moves for summary adjudication of the third cause of action for gender discrimination, on the same bases identified above with respect to the second cause of action. With respect to Defendant’s arguments concerning an adverse employment action and a legitimate business reason, as the third cause of action incorporates the same allegations, (see Complaint ¶ 38), these contentions are insufficient for the same reasons stated above.

Further, with respect to Defendant’s contention that Plaintiff cannot establish any conduct related to her gender, Defendant bases its position on solely the assertion that Plaintiff identified only Sree Kumar and Mike Soliman as the individuals who discriminated against her based on her gender. But this contention is not supported by any material facts identified in the Separate Statement. Because a party seeking summary adjudication may not rely on any facts not set forth in the separate statement (United Community Church v. Garcin, supra, at p. 337), Defendant cannot ground its showing on this factual assertion.

What is more, the deposition testimony from Plaintiff on which Defendant principally relies does not support the argument asserted. In her deposition, Plaintiff testified only that Kumar and Soliman were responsible for blocking her promotion, but did not identify them as the sole bad actors for the other conduct alleged in the Complaint. (Compare Complaint ¶¶ 28-29 with Hassan Decl. p. 202:7-18.) Because Defendant’s showing regarding discriminatory intent is limited in its scope and does not cover the entire range of Plaintiff’s allegations, it does not satisfy the requirements for shifting the burden to Plaintiff to demonstrate a triable issue of fact.

Having failed to prove that Plaintiff’s third cause of action is without merit for any of the reasons identified, Defendant is not entitled to summary adjudication of the third cause of action.

Accordingly, Defendant’s Motion for Summary Adjudication is DENIED as to the third cause of action.

Fourth Cause of Action: Age Discrimination

Defendant moves for summary adjudication of the fourth cause of action for age discrimination, on the same bases identified above with respect to the second cause of action. With respect to Defendant’s arguments concerning an adverse employment action and a legitimate business reason, as the fourth cause of action incorporates the same allegations (see Complaint ¶ 49) and Defendant relies on the same facts, Defendant’s arguments are insufficient for the same reasons stated above.

With respect to Defendant’s contention that Plaintiff cannot establish any conduct related to her age, Defendant again fails to address all of the allegations in the Complaint, committing the same error in mischaracterizing Plaintiff’s testimony, this time by stating that Plaintiff only identified Soliman, Kumar, Sparks, Caddick, Grant, and the unidentified interviewers as responsible for discriminating against her based on age. (See SSUMF No. 81) However, in truth, Plaintiff responded with a nonspecific “all of them” when asked who discriminated against her based on age, and also added “and also the current exam, current – current evaluation, everything you have, APs, and everything you have. I have reference to all of these.” (Hassan Depo pp. 189:23-190:2.) Construing all inferences in the light most favorable to the nonmoving party, this testimony also makes reference to Mr. Howard, who is identified in the Complaint but not addressed in the motion. Again, because a motion for summary adjudication must attack the entire cause of action to be successful, rather than focusing on only some allegations, Defendant’s showing is insufficient to meet its burden of proof. Plaintiff’s decision not to dispute this contention is immaterial, as Plaintiff’s response to this motion is irrelevant if Defendant has not carried its burden on summary judgment.

Further, even if the Court were to accept Defendant’s position as undisputed and address the allegations as to only the individuals identified in Plaintiff’s testimony, Defendant has still failed to carry its burden to the lack of merit in Plaintiff’s contention that the conduct to which she was subjected was motivated by her age. For example, Defendant claimt Plaintiff contended that Jim Sparks interfered with her securing a promotion on the basis of her age. (SSUMF No. 82) Plaintiff testified that she was informed that she was being investigated for a potential policy violation, and blamed Sparks, her division head, and Jeff Howard, the head of Human Resources. (SSUMF No. 83.) Defendant contends that Plaintiff cannot explain why she believes that Sparks accused her of the policy violation in the face of her testimony that Howard and Sparks told her that the notification was a clerical error. (See SSUMF Nos. 84-86.) However, Defendant again mischaracterizes Plaintiff’s testimony, as the deposition testimony relied on by Defendant never addresses why Plaintiff believes that Sparks falsely accused her. Defendant’s conclusion that this contention is “mere speculation” is not sufficient to demonstrate, by means of admissible evidence, that Plaintiff cannot produce the necessary evidence to prove an element of her claims. For this reason alone, Defendant has not demonstrated that Plaintiff’s fourth cause of action is without merit on this basis. Thus, the burden of proof does not shift to Plaintiff to demonstrate a triable issue of fact in this respect.

As Defendant has failed to demonstrate that Plaintiff’s fourth cause of action is without merit for any of the reasons identified, Defendant is not entitled to summary adjudication of the fourth cause of action.

Accordingly, Defendant’s Motion for Summary Adjudication is DENIED as to the fourth cause of action.

Fifth Cause of Action: Disability Discrimination

Defendant moves for summary adjudication of Plaintiff’s fifth cause of action for disability discrimination on the same bases stated above with respect to the second cause of action.

A claim for disability discrimination lies where a plaintiff (1) suffered from a disability or was so regarded, (2) could perform the essential duties of the job with or without reasonable accommodations, and (3) was subjected to an adverse employment action because of the disability or perceived disability. (Sandell v. Taylor-Listug, Inc. (2010) 188 Cal.App.4th 297, 310.)

With respect to Defendant’s arguments concerning an adverse employment action and a legitimate business reason, these contentions are insufficient for the same reasons stated above, because the fifth cause of action incorporates the same allegations analyzed with respect to the other discrimination claims. (See Complaint ¶ 59),.

Defendant also argues that, even assuming arguendo that Plaintiff was subjected to an adverse employment action, she was not subjected to any unlawful or improper conduct because of her disabilities. Plaintiff alleges that she was discriminated against due to her diagnosis of breast cancer, as well as a persistent tongue disorder. (Complaint ¶ 60.) Plaintiff also testified that she was discriminated against due to her development of carpal tunnel syndrome. (See SSUMF Nos. 105-106.) Defendant contends that each of these allegations is without merit.

Defendant first argues that Plaintiff’s allegation that she was discriminated against due to her cancer diagnosis is without merit. Defendant bases this contention on Plaintiff’s testimony that she only informed her immediate supervisor, Bruce Perelman, of her diagnosis, and that Mr. Perelman was supportive and accommodating of her condition. (SSUMF Nos. 98-101.) Defendant therefore contends that Plaintiff could not have been discriminated against because the only person who was aware of her condition was Mr. Perelman. This evidence is sufficient to demonstrate, as an initial matter, that Plaintiff cannot prevail on her claim for disability discrimination. The burden therefore shifts to Plaintiff to establish a triable issue of fact in this respect.

Here, Plaintiff has met her burden. Plaintiff offers the deposition testimony of Samuel Assoum, formerly a section head of the Construction Division, now a principal engineer, who testified that he was aware that Plaintiff was receiving treatment for cancer. (See Separate Statement of Disputed Fact No. 98; Deposition of Samuel Assoum pp. 50:10-51:20.) This evidence shows that individuals other than the one person identified by Plaintiff became aware of her condition. At minimum, this evidence is sufficient to create a question of fact about whether others with supervisory or managerial authority over Plaintiff might have been aware of her condition. As Plaintiff has demonstrated the existence of a triable issue of fact in this respect, the Court finds that Defendant is not entitled to summary adjudication on this basis.

Accordingly, Defendant’s Motion for Summary Adjudication of the fifth cause of action is DENIED.

Sixth Cause of Action: Retaliation

"[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. [Citations.] Once an employee establishes a prima facie case, the employer is required to offer a legitimate, nonretaliatory reason for the adverse employment action. [Citation.] If the employer produces a legitimate reason for the adverse employment action, the presumption of retaliation '" 'drops out of the picture, '"' and the burden shifts back to the employee to prove intentional retaliation." (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4^th 1028, 1042.) “Protected activity” for the purposes of a retaliation claim occurs when a plaintiff “has opposed any practices forbidden under [FEHA] or because the person has filed a complaint, testified, or assisted in any proceeding under [FEHA].” (Gov. Code § 12940(h).)

Defendant contends that Plaintiff’s sixth cause of action is without merit because she engaged in no protected activity and was not subjected to any adverse employment action. The Court has already rejected the latter contention and will not address it further.

As to its contention that Plaintiff did not engage in any protected activity, Defendant argues that Plaintiff identified two asserted provocations for retaliation in her deposition: her refusal to sign her performance evaluation and her request for a transfer. (SSUMF No. 109.) Defendant offers a conclusory assertion, without citation to any authority, that refusal to sign a performance evaluation cannot constitute protected activity as a matter of law. Plaintiff testified that she refused to sign her evaluation because she believed that it was “not acceptable.” (See Hassan Depo pp. 47:16-19.) Defendant offers no evidence showing why Plaintiff believed her performance evaluation to be “not acceptable.” Specifically, Defendant makes no attempt to show that Plaintiff’s refusal to approve the performance evaluation was a protest that it was discriminatory in violation of FEHA’s protections. The same must be said of Plaintiff’s request for transfer. While such a request standing alone may not constitute “protected conduct,” it could be considered as such if it was done in opposition to a supervisor’s discriminatory conduct. Defendant has offered no evidence at all that could be construed as negating or even challenging a protected motivation for Plaintiff’s decisions to take these actions. Accordingly, Defendant has failed to show entitlement to summary adjudication based on undisputed facts. The burden of proof therefore does not shift to Plaintiff to demonstrate a triable issue of fact in this respect.

As Defendant has not demonstrated that Plaintiff’s sixth cause of action is without merit for any of the reasons identified, the Court finds that Defendant is not entitled to summary adjudication of the sixth cause of action.

Accordingly, Defendant’s Motion for Summary Adjudication is DENIED as to the sixth cause of action.

Seventh Cause of Action: Failure to Prevent

Government Code section 12940 makes it unlawful for an employer to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring. (Gov. Code § 12940(k).)

Defendant contends that this cause of action is without merit because, first, there was no discrimination, harassment, or retaliation, and, second, because the County took reasonable steeps by having a Policy of Equity which stated that “discrimination, harassment, and retaliation are absolutely contrary to the values of the County.” (See SSUMF No. 113.) As the Court has denied Defendant’s motion as to the underlying causes of action, the Court rejects Defendant’s contention that there was no discrimination, harassment, or retaliation. Further, Defendant’s contention that a Policy of Equity constitutes a “reasonable step” is unsupported by citation to any authority, and, in any event, is insufficient to establish that Defendant took all reasonable steps to prevent harassment, discrimination, and retaliation under section 12940(k).

Defendant has not demonstrated that Plaintiff cannot prevail on this cause of action. The burden of proof therefore does not shift to Plaintiff to establish a triable issue of fact as to this claim. Defendant is thus not entitled to summary adjudication of this cause of action.

Accordingly, Defendant’s Motion for Summary Adjudication is DENIED as to the seventh cause of action.

Conclusion

Accordingly, Defendant’s Motion for Summary Adjudication is DENIED in its entirety.

CONCLUSION:

Accordingly, Defendant’s Motion for Summary Judgment is DENIED.

Defendant’s alternative Motion for Summary Adjudication is DENIED.

Moving Party to give notice.

IT IS SO ORDERED.

Dated: March 9, 2023 ___________________________________

Theresa M. Traber

Judge of the Superior Court

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.