Judge: Theresa M. Traber, Case: 22STCV33525, Date: 2024-06-14 Tentative Ruling



Case Number: 22STCV33525    Hearing Date: June 14, 2024    Dept: 47

Tentative Ruling

 

Judge Theresa M. Traber, Department 47

 

 

HEARING DATE:     June 14, 2024             TRIAL DATE: November 26, 2024

                                                          

CASE:                         Roselia Orrego Carrera v. United Moving Cars, et al.

 

CASE NO.:                 22STCV33525           

 

MOTION FOR SUMMARY JUDGMENT OR SUMMARY ADJUDICATION

 

MOVING PARTY:               Plaintiff Roselia Orrego Carrera

 

RESPONDING PARTY(S): Defendants United Moving Cars and Juan Carlos Acosta Martinez

 

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

           

            This is an action for retaliation and wage and hour violations that was filed on October 14, 2022. Plaintiff alleges that she was terminated in retaliation for filing a police report and pursuing a worker’s compensation claim for harassment perpetrated by a client of her employer.

 

Plaintiff moves for summary judgment, or, in the alternative, for summary adjudication of each cause of action and Defendants’ affirmative defenses Nos. 38 (legitimate nondiscriminatory basis), 58 (legitimate, independent reasons) and 59 (no protected activity).

           

TENTATIVE RULING:

 

Plaintiff’s Motion for Summary Judgment is DENIED.

 

            Plaintiff’s Motion for Summary Adjudication is GRANTED as to the 38th affirmative defense (legitimate nondiscriminatory purpose) and 58th affirmative defense (legitimate independent reason) and otherwise DENIED.

 

DISCUSSION:

 

Motion for Summary Judgment

 

Plaintiff moves for summary judgment.

As Plaintiff has not prevailed on all causes of action for the reasons stated below, Plaintiff’s Motion for Summary Judgment is DENIED.

 

Motion for Summary Adjudication

 

Plaintiff moves in the alternative for summary adjudication of each cause of action and Defendants’ affirmative defenses Nos. 38 (legitimate nondiscriminatory basis), 58 (legitimate, independent reasons) and 59 (no protected activity).

 

Legal Standard for Summary Adjudication by Plaintiff

 

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, a plaintiff moving for summary judgment satisfies the initial burden to show that there is no defense to a claim by proving each element of the cause of action entitling the party to judgment. (Code Civ Proc. § 437c(p)(1).) 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 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 plaintiff has met that burden, the burden shifts to the defendant to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. (Code Civ. Proc. § 437c(p)(1).) 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.)

 

Plaintiff’s Separate Statement

 

            Pursuant to the California Rules of Court, a Separate Statement of Undisputed Material Fact in support of a motion for summary judgment or summary adjudication must separately identify each cause of action, claim for damages, issue of duty, or affirmative defense that is the subject of the motion, and must separately identify each material fact with respect to each issue. (Cal. Rules of Court 3.1350(d).) Rather than comply with this requirement, Plaintiff’s Separate Statement of Undisputed Material Fact in support of her motion sets forth all nine issues at once before listing fourteen facts which are claimed to be undisputed and material to all issues. That said, Defendants have not objected to the Separate Statement on this basis and prepared their Response to the Separate Statement accordingly. As there appears to have been no prejudice to Defendants by Plaintiff’s failure to obey procedural requirements, the Court will overlook this deficiency and address the motion on its merits.

 

Plaintiff’s “Response to Defendants’ Separate Statement of Facts”

 

            Plaintiff also filed a “Response to Defendants’ Separate Statement of Facts” in support of her Reply papers on June 7, 2024. No such filing is authorized either by the Code of Civil Procedure or the Rules of Court. This filing will therefore not be considered in the Court’s ruling on this motion.

 

First Cause of Action: Retaliation (Gov. Code Section 12940(h))

 

            Plaintiff moves for summary adjudication of the first cause of action for retaliation under the Fair Employment and Housing Act on the basis that there is no defense to this cause of action.

 

“[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 [describing the burden-shifting analysis for retaliation claims on summary adjudication by defendants].)

 

            Plaintiff contends that the undisputed evidence demonstrates that she engaged in protected activity by calling the police on her harasser on August 2, 2022. (SSUMF No. 6.) Plaintiff states that she was terminated that same month. (SSUMF No. 1.) As Plaintiff states in her moving papers, both direct and circumstantial evidence can demonstrate retaliatory intent. (Colarossi v. Coty US Inc. (2002) 97 Cal.App.4th 1142, 1153.) Close temporal proximity between the protected activity and the adverse employment action where the employer is aware of the protected activity is proof of retaliatory motive. (E.g. Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 615.)

 

            Although Plaintiff contends the issues should be straightforwardly resolved in her favor, close reading of the evidence cited by Plaintiff in support of her motion belies the argument that there is no dispute such that Plaintiff is entitled to judgment as a matter of law on this issue. Plaintiff’s papers make much of Defendants’ statements in special interrogatories that Plaintiff was terminated for recording her co-workers and was hostile and antagonistic, and of a letter which states that she was, in fact, terminated. (See, e.g., Memo of Ps. & As. p.11:3-11.) However, this evidence is not referenced in the Separate Statement and therefore is immaterial to the motion. “This is the Golden Rule of Summary Adjudication: 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].) Even if this evidence were properly before the Court, Defendant Martinez contradicts that theory in the deposition testimony cited by Plaintiff, contending that the termination letter was a form letter that was prepared in haste because Plaintiff quit voluntarily and requested a “resignation sheet.” (Plaintiff’s Exh. E. p.136:17-141:10.) Defendants raise this issue in their opposition, arguing that Plaintiff has not carried her burden, or, alternatively, there is a triable issue of fact as to whether they took any adverse employment action against Plaintiff at all.  

 

            While Plaintiff casts significant doubt on Defendant Martinez’s credibility as a witness and on the veracity of the theory which he proffers, the Court cannot weigh evidence in the context of a motion for summary adjudication. Plaintiff’s citation to D’Amico v. Board of Medical Examiners and its progeny is unavailing, as that body of authority only stands for the position that a self-serving declaration in support of an opposition to a motion for summary adjudication does not raise a triable issue of fact by contradicting admissions made in prior sworn deposition testimony. (D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d. 1, 21.) Indeed, D’Amico “does not countenance ignoring other credible evidence that contradicts or explains that party’s answers.” (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1524.) None of the authorities cited by Plaintiff stand for the position that the Court may or should disregard deposition testimony which contradicts statements in written interrogatories. (Preach v. Monter Rainbow (1993) 12 Cal.App.4th 1441, 1451 [declaration contradicting pleadings]; Cohen v. Kabbalah Centre Int’l. Inc. (2019) 35 Cal.App.5th 13, 18-19 [declaration contradicting pleadings]; Alvis v. County of Ventura (2009) 178 Cal.App.4th 536, 549 [declaration contradicting prior statement].) Scalf, in particular, emphasizes that the D’Amico rule is very narrow, and only “bars a party opposing summary judgment from filing a declaration that purports to impeach his or her own prior sworn testimony.” (Scalf, supra, 128 Cal.App.4th at 1522.) The credibility of Defendant Martinez’s explanation, therefore, is not subject to D’Amico, and must be resolved by a jury, not by the Court on summary adjudication. Thus, even assuming Plaintiff has carried her burden to establish each element of the first cause of action, Defendants have offered evidence which demonstrates a triable issue of material fact about whether Plaintiff was, in fact, terminated. Moreover, for the reasons stated below in connection with the 59th affirmative defense, Plaintiff has not established as a matter of law that she did, in fact, engage in protected activity of any sort.

 

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

 

Second Cause of Action: Whistleblower Retaliation

 

            Plaintiff moves for summary adjudication of the second cause of action for whistleblower retaliation. As the parties agree that this cause of action is premised on the same facts as the first cause of action, Plaintiff’s Motion for Summary Adjudication of the second cause of action is DENIED for the reasons stated above.

 

Thirty-Eighth Affirmative Defense (Legitimate Nondiscriminatory Purpose)

 

            Plaintiff also moves for summary adjudication of the 38th affirmative defense claiming a legitimate nondiscriminatory purpose on the same basis as the first two causes of action. She properly bases her motion on evidence negating a series of possible nondiscriminatory reasons for Defendant’s alleged actions. (SSUMF Nos. 8-10.) In opposition, Defendant fails to address Plaintiff’s showing as to this affirmative defense arguing instead that she has not shown she was terminated, which is a separate and independent element of Plaintiff’s claims, and that Plaintiff must negate all affirmative defenses to obtain summary adjudication on one.  This is plainly not the law. (Code Civ. Proc. § 437c(p)(1).)  While the Court has found that Plaintiff has not demonstrated as a matter of law that she was subjected to the adverse employment action of termination, Plaintiff is entitled to summary adjudication of the 38th affirmative defense because Defendant has raised no triable issue of fact showing a legitimate reason for any termination that may be proven. 

 

Fifty-Eighth Affirmative Defense (Legitimate Independent Reasons)

 

            Plaintiff moves for summary adjudication of the 58th affirmative defense claiming that the alleged action would have occurred for legitimate independent reasons, notwithstanding any protected activity, on the same basis as the first two causes of action. Again, Plaintiff properly bases her motion on evidence negating a series of possible nondiscriminatory reasons for Defendant’s alleged actions. (SSUMF Nos. 8-10.) Defendant again responds to this showing by arguing Plaintiff has not shown she was terminated and by raising the unsupported contention that Plaintiff must negate all affirmative defenses to obtain summary adjudication on one.  While the Court has found that Plaintiff has not demonstrated as a matter of law that she was subjected to the adverse employment action of termination, Plaintiff is entitled to summary adjudication of the 58th affirmative defense because Defendant has raised no triable issue of fact showing a legitimate reason for any termination that may be proven. 

 

Fifty-Ninth Affirmative Defense (No Protected Activity)

 

            Plaintiff moves for summary adjudication of the 59th affirmative defense claiming that Plaintiff did not engage in any protected activity under Labor Code section 1102.5. Although Plaintiff asserts that it is undisputed that she engaged in protected activity under both the Labor Code and FEHA, the Separate Statement of Undisputed Material Fact only references Defendant Martinez’s deposition, wherein he testified that Plaintiff called the police on one of the client’s employees because he “was being disrespectful with [Plaintiff].” (SSUMF No. 6; Exh. D. pp.40:15-41:24.) This testimony, by itself, does not establish protected activity because it does not demonstrate that Plaintiff disclosed information “to a government or law enforcement agency” which she had reasonable cause to believe disclosed “a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation.” (Labor Code § 1102.5(a).) Nor, for that matter, does it demonstrate on its face a complaint for a violation of Government Code section 12940, although that issue is less pertinent with respect to this affirmative defense.  While other evidence presented in support of the motion might address that deficiency, the Court does not consider factual contentions which are not set forth in the Separate Statement. This is the Golden Rule of Summary Adjudication: 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].)

 

            As Plaintiff has not offered evidence demonstrating that she has, in fact, engaged in protected activity, Plaintiff’s Motion for Summary Adjudication of the 59th affirmative defense is DENIED.

 

Third Cause of Action: Unpaid Overtime Wages

 

            Plaintiff moves for summary adjudication of the third cause of action for unpaid overtime wages.

 

            Labor Code section 510 states that any employee who works more than eight hours in one workday or more than 40 hours in one work week, or who works more than six days per week must be compensated by at least one and one-half times their regular pay. (Labor Code § 510(a).) Further, any work in excess of 12 hours in one day, or for more than eight hours on the seventh day of the week, must be compensated with double pay. (Id.) An employee who receives less than the legal overtime compensation may recover the full unpaid balance of that compensation via a civil action. (Labor Code § 1194.) To prevail on this cause of action, an employee must prove that the employee “has in fact performed work for which he was improperly compensated” and produce “sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference.” (Hernandez v. Mendoza (1988) 199 Cal.App.3d 721, 727.)

 

            Plaintiff contends that she is entitled to summary adjudication of this cause of action because Defendant Martinez admitted in deposition that Plaintiff’s work schedule was 3:00 pm to 11:30 pm, and that she would work five to six days a week, on average, and frequently worked six days per week at that schedule. (SSUMF No. 4.) Thus, Plaintiff argues, Defendants have conceded that Plaintiff worked more than 40 hours per week and is therefore owed overtime compensation, which Defendant Martinez admitted was never paid. (SSUMF Nos. 12-13.) However, Plaintiff does not address the amount and extent of the unpaid work in her papers. Moreover, while Defendant Martinez’s statements show that some overtime work was performed, no testimony was elicited which suggests the amount. Plaintiff has therefore failed to establish the extent of unpaid wages, which is an element of this cause of action. Consequently, the burden does not shift to Defendants to establish a triable issue of fact, and Plaintiff is not entitled to summary adjudication.

 

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

Fourth Cause of Action: Inaccurate Wage Statements

 

            Plaintiff moves for summary adjudication of the fourth cause of action for failure to provide accurate itemized wage statements on the basis that if Plaintiff prevails on the third cause of action for unpaid overtime, Defendants’ wage statements are inaccurate as a matter of law. The parties agree that this cause of action runs alongside the third cause of action, and, for that reason, Plaintiff’s motion for summary adjudication of the fourth cause of action is DENIED.

 

Fifth Cause of Action: Waiting Time Penalties

 

            Plaintiff moves for summary adjudication of the fifth cause of action for waiting time penalties. The parties agree that this cause of action runs alongside the third cause of action, and, for that reason, Plaintiff’s motion for summary adjudication of the fifth cause of action is DENIED.

 

Interest, Attorney’s Fees, and Costs

 

            Plaintiff moves for summary adjudication of her entitlement to interest, attorney’s fees, and costs for prevailing on her claims. Prejudgment interest, attorney’s fees, and costs are not issues which are subject to summary adjudication under Code of Civil Procedure section 437c(f)(1). Plaintiff’s Motion for Summary Adjudication is therefore DENIED with respect to prejudgment interest, attorney’s fees, and costs, without prejudice to a separate, procedurally compliant, motion for prejudgment interest and/or attorney’s fees and costs.  

 

CONCLUSION:

 

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

 

            Plaintiff’s Motion for Summary Adjudication is GRANTED as to the 38th affirmative defense (legitimate nondiscriminatory purpose) and 58th affirmative defense (legitimate independent reason) and otherwise DENIED.

 

            Moving Party to give notice.

 

IT IS SO ORDERED.

 

Dated:  June 14, 2024                         ___________________________________

                                                                                    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.