Judge Theresa M. Traber, Case 20STCV37586 2022-08-02 Tentative Ruling

Judge: Theresa M. Traber, Case: 20STCV37586, Date: 2022-08-02 Tentative Ruling

Case Number: 20STCV37586 Hearing Date: August 2, 2022 Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE: August 2, 2022 TRIAL DATE: September 6, 2022

CASE: Rodolfo Sanchez v. Hub Metals and Trading, Inc., et al.

CASE NO.: 20STCV37586

MOTION FOR SUMMARY ADJUDICATION

MOVING PARTY: Defendants Hub Metals and Trading, Inc.; and Michael Kovach.

RESPONDING PARTY(S): Plaintiff Rodolfo Sanchez.

CASE HISTORY:

· 10/01/20: Complaint filed.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

This is an action, filed on October 1, 2020, alleging whistleblower retaliation and assault and battery. Plaintiff contends that he was wrongfully terminated in retaliation for complaining because his supervisor pushed him during an argument.

Defendants move for summary adjudication as to all causes of action.

TENTATIVE RULING:

Defendants’ motion for summary adjudication is GRANTED as to the fourth and fifth causes of action and otherwise DENIED.

DISCUSSION:

Defendants move for summary adjudication as to all causes of action pertaining to them.

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.)

Defendants’ Evidentiary Objections

As the Court does not rely on any of the evidence to which Defendants object, the Court declines to rule on Defendants’ objections. (Code Civ. Proc. § 437c(q).)

Plaintiff’s Statement of Additional Facts

Plaintiff has filed a separate Statement of Additional Facts in addition to his Response to Separate Statement. California Rule of Court rule 3.1350(f)(3) requires that any additional material facts be set forth in the same separate statement in opposition, not in an additional document. However, as the separate filing is sufficient to put Defendants on notice of Plaintiff’s factual contentions, and Defendants have not objected to this procedural defect, the court will overlook the improper filing and consider the Statement of Additional Facts.

Defendant’s Reply to Separate Statement

Defendants attempt to introduce a reply to Plaintiff’s Response to Separate Statement. California Rule of Court Rule 3.1350 does not authorize the filing of a reply separate statement. This filing is improper, and the Court will therefore not consider it.

Defendants’ Evidence on Reply and Request for Judicial Notice

Defendants attempt to introduce new evidence and request judicial notice of additional material on reply. New evidence may not ordinarily be introduced on reply. (See, e.g., Marriage of Khera & Sameer (2012) 206 Cal.App.4th 1467, 1477 ["Obvious reasons of fairness militate against consideration of an issue raised initially in the reply brief"].) Therefore, the Court will not consider this evidence.

First Cause of Action: Whistleblower Retaliation (Labor Code Section 1102.5(b)

Defendants contend that Plaintiff cannot prevail on his first cause of action for whistleblower retaliation under Labor Code section 1102.5(b).

Labor Code section 1102.5(b) states:

An employer, or any person acting on behalf of the employer, shall not retaliate against an employee for disclosing information, or because the employer believes that the employee disclosed or may disclose information, to a government or law enforcement agency, to a person with authority over the employee or another employee who has the authority to investigate, discover, or correct the violation or noncompliance, or for providing information to, or testifying before, any public body conducting an investigation, hearing, or inquiry, if the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation, regardless of whether disclosing the information is part of the employee’s job duties.

(Lab. Code § 1102.5(b).) Defendants set forth two theories for why Plaintiff cannot prevail on his first cause of action: first, because Plaintiff did not disclose information to his employer or to a government agency, and second, because Plaintiff cannot establish that his termination was retaliatory in nature.

1. Disclosure

Defendants contend that Plaintiff cannot prevail on this cause of action because Plaintiff did not disclose any information as required by section 1102.5(b). Defendants rely on Mize-Kurzman v. Marin Community College District, in which the Court of Appeal stated that “[an] employee’s report to the employee’s supervisor about the supervisor’s own wrongdoing is not a ‘disclosure’ and is not protected whistleblowing activity, because the employer already knows about his or her wrongdoing.” (Mize-Kurzman v. Marin Community College District (2012) 202 Cal.App.4th 832, 852.)

Defendants’ reliance on this case is misplaced for several reasons. First, the quoted language from Mize-Kurzman was in reference to whether statements about a supervisor’s misconduct to that supervisor when both the plaintiff and the supervisor were government employees constituted a “disclosure,” or merely a report of publicly known facts. Here, Hub Metals is a private corporation, not a government entity, and neither Plaintiff nor Defendant Kovach are or were government employees. Second, the federal cases upon which the Mize-Kurzman court relied to reach its holding were superseded in 2012, the same year as the Mize-Kurzman decision, when Congress passed the Whistleblower Protection Enhancement Act of 2012. (Pub.L. No. 112-199 (Nov. 27, 2012) 126 Stat. 1465.) The WPEA amended the corresponding provision of federal law, 5 U.S.C. section 2302, adding subdivision (f)(1)(A), which stated that disclosures are not excluded from whistleblower protection if “the disclosure was made to a supervisor or to a person who participated in an activity that the employee . . . reasonably believed to be covered. (Pub.L. No. 112-199 (Nov. 27, 2012) § 101(b)(2)(C); 126 Stat. 1465 at 1466.) Third, the California Legislature similarly amended section 1102.5(b) in 2014, adding language prohibiting retaliation for disclosure of information “to a person with authority over the employee or another employee who has the authority to investigate, discover, or correct the violation or noncompliance.” (Stats. 2013, Ch. 781 (S.B. 496), § 4.1.) At the time of the Mize-Kurzman decision, this language was not present in section 1102.5(b). (See Mize-Kurzman, supra, 202 Cal.App.4th at 844, fn.2.) It is true that, unlike the federal legislative history, the legislative history and analysis of S.B. 496 does not directly address Mize-Kurzman, instead only referencing a general intention to expand the scope of whistleblower protections. (See, e.g., S.B. 496 Senate Floor Analysis (September 6, 2013) p.3.) However, considering the factually-distinguishable nature of Mize-Kurzman, the invalidation of the federal law on which the decision relied, and the need to interpret the new additions to section 1102.5(b) in an expansive manner befitting such remedial legislation, the Court cannot conclude that Mize-Kurzman is persuasive authority for Defendants’ contention.

As this is Defendants’ only argument on the disclosure issue, the Court finds that Defendants have not shown that Plaintiff cannot prevail on this cause of action due to a failure to disclose. Accordingly, the burden of proof does not shift to Plaintiff.

2. Retaliation

Defendants urge the Court to analyze Plaintiff’s retaliation claim under Labor Code § 1102.5 by using the burden-shifting analysis for retaliation causes of action under the Fair Employment and Housing Act (Government Code §§ 12900, et seq.) and requiring Plaintiff to demonstrate that the reason given for his termination is not the true reason but rather a pretext for retaliation. (Moving paper, pp. 6-7, citing Akers v. County of San Diego (2002) 95 Cal. App. 4^th 1441, and Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354.) As the Supreme Court held in its recent opinion in Lawson v. PPG Architectural Finishes, Inc. (2022) 2 Cal. 5th 703 [Lawson], the burden-shifting construct used to evaluate FEHA claims does not apply to retaliation claims under § 1102.5, which are governed by the standards of proof set forth in Labor Code § 1102.6.

Section 1102.6 provides:

In a civil action or administrative proceeding brought pursuant to Section 1102.5, once it has been demonstrated by a preponderance of the evidence that an activity proscribed by Section 1102.5 was a contributing factor in the alleged prohibited action against the employee, the employer shall have the burden of proof to demonstrate by clear and convincing evidence that the alleged action would have occurred for legitimate, independent reasons even if the employee had not engaged in activities protected by Section 1102.5.

Given this statutory provision, it “would make little sense to require section 1102.5 retaliation plaintiffs” to satisfy the dictates of the burden-shifting test applied to FEHA claims. (Lawson, supra, at p. 715.)

Under section 1102.6, a plaintiff does not need to show that the employer's nonretaliatory reason was pretextual. Even if the employer had a genuine, nonretaliatory reason for its adverse action, the plaintiff still carries the burden assigned by statute if it is shown that the employer also had at least one retaliatory reason that was a contributing factor in the action. There is, then, no reason why whistleblower plaintiffs should be required to . . . prove that the employer's proffered legitimate reasons were pretextual . . . to prove that retaliation was a contributing factor under section 1102.6.

(Lawson, supra, at pp. 715-716.) The Supreme Court specifically rejected imposition of the “pretext” requirement on section 1102.5 retaliation plaintiffs in the context of a defense motion for summary judgment. (Id., at p. 717.) Whether at trial or in advancing a motion for summary adjudication, a requirement that the plaintiff must the employer’s justification is a pretext is “simply incompatible with the contributing factor standard set out in section 1102.6,” because the former requirement mandates a showing that the justification is not the true motivation, and the latter standard requires only a showing that retaliation was one of the contributing reasons, potentially along with the employer’s stated explanation.

Turning to the facts of the case, most of the essential facts are undisputed. Plaintiff had been given several disciplinary warnings prior to the October 1, 2019 altercation. (Plaintiff’s Response to Separate Statement (“RSS”) Nos. 4-5.) On October 1, 2019, Plaintiff bumped and dented a piece of metal, after which another employee began arguing with Plaintiff. (Id. Nos. 6-8.) Defendant Kovach overheard the argument, got up to intervene, walked toward the two arguing employees, and told Plaintiff to go home. (Id. Nos. 9-10.) Defendants contend that Plaintiff did not go home, but instead began arguing with Kovach, and only then was Plaintiff fired. (Defendant’s Separate Statement of Undisputed Material Fact (“SSUMF”) Nos. 11-12.) Defendant Kovach stated in a declaration under penalty of perjury that Plaintiff’s statement “don’t push me” was not a contributing factor in the decision to terminate Plaintiff. (SSUMF No. 13.) Defendants have offered evidence that Plaintiff’s statement was not a basis for his termination, and therefore that Plaintiff cannot prevail on this cause of action. The burden now shifts to Plaintiff to establish a triable issue of fact as to whether his statement was a contributing factor leading to his termination.

In opposition, Plaintiff contends that, when Defendant Kovach approached Plaintiff, Defendant Kovach physically pushed Plaintiff, hard enough to knock him backward. (RSS Nos. 12-13.) Plaintiff immediately responded by saying “Mike, don’t push me.” (Id.) Plaintiff contends that Defendant Kovach only fired him immediately after Plaintiff protested being pushed. (Id.) The causal link proving retaliation may be established by circumstantial evidence such as the employer’s knowledge of the employee’s protected activities and the proximity in time between the action and the alleged retaliation. (Fisher v. San Pedro Peninsula Hosp. (1989) 214 Cal.App.3d 590, 615. Plaintiff alleges that Defendant Hub Metals’ investigation was insufficient because he was never interviewed as to the events of October 1. (Plaintiff’s Statement of Additional Facts (“SAF”) No. 17.) Lack of rigorous investigation is evidence of retaliatory intent. (See Mendoza v. W. Med. Ctr. Santa Ana (2014) 222 Cal.App.4th 1334, 1344.) Further, Plaintiff argues that, although Plaintiff had received several warnings from Defendants regarding his conduct, each warning said that Plaintiff would be terminated on his third offense, yet Plaintiff was written up more than three times. (Defendants’ Exhs. 1-5.) Plaintiff argues that, since the number of violations was overlooked, Defendants cannot now contend that they were the basis for his termination. Inconsistency in performance evaluations prior and subsequent to an employee’s termination can support an inference of pretext. (Johnson v. United Cerebral Palsy/Spastic Children’s Foundation (2009) 173 Cal.App.4th 740, 759. Finally, Plaintiff also contends that Defendants’ failure to produce a written statement by James Baker in discovery is evidence of retaliation (SAF Nos. 21-22) based on a theory of spoliation of evidence. However, as Plaintiff has not moved for relief based on any purported spoliation of evidence, Plaintiff’s conclusory assertions that the absence of this evidence is because of spoliation are not sufficient. Notwithstanding the spoliation argument and although Plaintiff’s body of evidence is circumstantial, Plaintiff has offered sufficient evidence to establish a triable issue of fact as to whether retaliation for his statement was a contributing factor leading to his termination.

Accordingly, for the foregoing reasons, summary adjudication is DENIED as to the first cause of action.

Second Cause of Action: Whistleblower Retaliation (Labor Code Section 6310)

Defendants contend that Plaintiff cannot prevail on his second cause of action for whistleblower retaliation under Labor Code section 6310.

Section 6310 states, in relevant part:

(b) Any employee who is discharged . . . by their employer because the employee has made a bona fide oral or written complaint . . . of unsafe working conditions or work practices, in their place of employment . . . shall be entitled to reinstatement and reimbursement for lost wages and work benefits caused by the acts of the employer.

(Labor Code § 6310(b).)

Defendants proffer two bases for their contention that Plaintiff cannot prevail on this claim: first, that Plaintiff’s statement was not a complaint relating to unsafe working conditions or work practices, and second, because he was not retaliated against.

1. Health and Safety Complaint

Defendants contend that Plaintiff cannot prevail on this cause of action because a statement of “don’t push me” is not a complaint about unsafe working conditions or practices. To fall under section 6310, an employee’s complaint must relate to unsafe “working conditions or work practices.” (See Daly v. Exxon Corp. (1997) 55 Cal.App.4^th 39, 44.)

Defendants contend that Plaintiff’s statement is not a complaint about an unsafe working condition or work practice, but a command, and, to the extent that it can be construed as a complaint, it is a complaint about a single isolated incident, not an ongoing practice. (See SSUMF No. 16.) However, Defendants cite no law that states that a single workplace incident cannot be the basis for a section 6310 claim, nor do they cite any law that states that a complaint of battery is not related to unsafe working conditions or work practices. Further, it is established that where an employer fires an employee to preempt a potential complaint about workplace conditions or practices, the terminated plaintiff may bring a claim for violation of § 6310. (Lujan v. Minagar (2004) 124 Cal. App. 4th 1040, 1045.) Here, the evidence would support a claim that Defendants fired Plaintiff because of his don’t-push-me comment to forestall any formal complaint arising from Defendant Kovach’s physically aggressive conduct. Defendants have therefore failed to establish that Plaintiff cannot prevail on this cause of action on this basis. The burden therefore does not shift to Plaintiff to establish a triable issue of fact.

2. Retaliation

Defendants reassert the argument that Plaintiff cannot prevail on this cause of action because he was not retaliated against. In contrast to Plaintiff’s claim under Labor Code § 1102.5, there is no statute setting forth the parties’ respective burdens for a claim under Labor Code § 6310. Further, there is no California guidance on what burdens the parties must shoulder on a motion for summary judgment challenging a claim under § 6310. Defendants argue that the burden-shifting analysis under FEHA applies to such a claim, and Plaintiff does not disagree. Assuming that this is the proper standard to test Plaintiff’s § 6310 claim, the Court concludes that Defendants’ request for summary adjudication on the second cause of action should be denied.

As with Plaintiff’s first cause of action under Labor Code § 1102.5, Defendants have offered sufficient evidence to demonstrate a legitimate, nonretaliatory reasons for Plaintiff’s termination. (Guz v. Bechtel National, Inc., 24 Cal.4th at pp. 354-355.) Although Defendants assert other facts, this showing was made based simply on Defendant Kovach’s sworn denial that Plaintiff’s “don’t push me” comment motivated the firing. That said, the same evidence from Plaintiff discussed above in connection with the §1102.5 claim also gives rise to a triable issue of fact as to Defendants’ retaliatory intent. Such evidence tends to prove, inter alia, a close temporal juxtaposition between Plaintiff’s comment and the firing, an inadequate investigation of the incident, and a failure by Defendants to enforce their own policy about multiple warnings until the “don’t push me” direction. This is sufficient to raise a triable issue about whether Defendants’ stated justification is a pretext for retaliation.

Accordingly, for the foregoing reasons, Defendants’ request for summary adjudication on the second cause of action must fail.

Third Cause of Action: Wrongful Termination in Violation of Public Policy

Defendants contend that Plaintiff cannot prevail on the third cause of action for wrongful termination in violation of public policy because this cause of action is tethered to the previous two causes of action. Therefore, as summary adjudication has been denied on the first two causes of action, summary adjudication on the third cause of action is likewise DENIED.

Fourth Cause of Action: Assault

Defendants contend that Plaintiff cannot prevail on the fourth cause of action for assault because it is protected by the worker’s compensation exclusivity rule.

An employer who sustains an injury “arising out of and in the course of employment” is limited to recovery under the worker’s compensation system. (Labor Code § 3600(a).) Injuries that arise out of disagreements between co-workers while at work are ordinarily considered to have arisen out of and in the course of employment. Our Supreme Court explained the issue thus:

“Flare-ups, frustrations, and disagreements among employees are commonplace in the workplace and may lead to “physical act[s] of aggression.” [Citations] “’In bringing [people] together, work brings [personal] qualities together, causes frictions between them, creates occasions for lapses into carelessness, and for fun-making and emotional flareup . . . These expressions of human nature are incidents inseparable from working together. They involve risks of injury and these risks are inherent in the working environment.”’ [Citations].

(Torres v. Parkhouse Tire Serv., Inc. (2001) 26 Cal.4th 995, 1008.) Defendants contend that the undisputed facts are that the alleged injury occurred at work because the initial argument began when Plaintiff dented a piece of metal while working, and the alleged push occurred when Defendant Kovach intervened. (RSS Nos. 30-36.) Defendants have offered evidence that the injury at issue arises out of and in the course of employment, and therefore Plaintiff cannot prevail on this cause of action. The burden shifts to Plaintiff to establish a triable issue of fact on this issue.

In opposition, Plaintiff asserts that this claim is subject to the “willful and unprovoked physical acts of aggression” exception under Labor Code section 3601. This statute provides that the worker’s compensation exclusivity limitation does not apply to claims against another employee “[w]hen the injury . . . is proximately caused by the willful and unprovoked physical act of aggression of the other employee.” (Labor Code §. 3601(a)(1).) However, subdivision (b) of this statute expressly provides that the employer shall not be held liable for claims under this exception. (Labor Code § 3601(b).) Plaintiff contends that his claim against Defendant Kovach automatically survives because an allegation of assault is an intentional tort. However, as Defendants correctly observe in their reply, not every assault or battery falls within this exception. (See, e.g., Soares v. City of Oakland (1992) 9 Cal.App.4th 1822, 1828-30.) As a general rule, the exception applies when the employee has a subjective intent to injure the plaintiff. (Torres, supra, 26 Cal.4th at 1006.) Plaintiff offers no evidence that Defendant Kovach’s subjective intent was to injure Plaintiff.

In the alternative, Plaintiff argues that even if the exception under section 3601 does not apply, Plaintiff can still maintain this cause of action under a theory that an assault and battery is not an inherent risk of employment. However, Plaintiff’s only case in support of this contention is Fretland v. County of Humboldt (1999) 69 Cal.App.4th 1478. This case is not on point, as the only holding on point in that case was that work-related injury discrimination was not a normal risk of employment. (69 Cal.App.4th 1478, 1484-85.)

Finally, Plaintiff argues that Defendant Hub Metals can be held liable under a theory of ratification of Kovach’s actions. (See Iverson v. Atlas Pacific Engineering (1983) 143 Cal.App.3d 219, 230.) However, that argument is contingent on imputing Kovach’s liability to Hub Metals as a joint participant. (Id. at 228.) Thus, if Plaintiff cannot establish a triable issue of fact as to Kovach’s liability, Plaintiff cannot establish a triable issue as to Hub Metals’ liability.

For the foregoing reasons, the Court finds that Plaintiff has failed to establish a triable issue of fact as to this cause of action. Accordingly, summary adjudication is GRANTED as to this cause of action.

Fifth Cause of Action: Battery

Defendants contend that Plaintiff cannot prevail on the fifth cause of action for battery on the same basis as the fourth cause of action for assault. Therefore, for the foregoing reasons, summary adjudication is GRANTED as to this cause of action.

CONCLUSION:

Accordingly, Defendants’ motion for summary adjudication is GRANTED as to the fourth and fifth causes of action and otherwise DENIED.

Moving Parties to give notice.

IT IS SO ORDERED.

Dated: August 2, 2022 ___________________________________

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.