Judge Thomas D. Long, Case 21STCV05643 2023-03-20 Tentative Ruling

On February 11, 2021, Plaintiff Alberto Salazar filed this action against Defendants Allenn Specialty Group Corp. and ValleyScapes, Inc. The parties later stipulated to allowing Plaintiff’s action to continue through Maria Salazar, his successor-in-interest.

The complaint alleges (1) discrimination in violation of the Fair Employment and Housing Act (“FEHA”); (2) retaliation in violation of FEHA; (3) failure to prevent discrimination and retaliation in violation of FEHA; (4) failure to provide reasonable accommodations in violation of FEHA; (5) failure to engage in a good faith interactive process in violation of FEHA; (6) retaliation in violation of the California Family Rights Act (“CFRA”); (7) declaratory judgment; (8) wrongful termination in violation of public policy; (9) waiting time penalties under the Labor Code; and (10) failure to permit inspection of personnel and payroll records.

On December 29, 2022, ValleyScapes, Inc. (“Defendant”) filed a motion for summary adjudication of the first through ninth causes of action.

Defendant’s request for judicial notice of documents filed in Plaintiff’s bankruptcy action is granted. In doing so, the Court takes judicial notice only of the legal effect of documents’ language when the effect is clear, not of the truth of statements of fact recited within the documents. (Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 265.)

Defendant’s objections are not numbered consecutively as required. (California Rules of Court, rule 3.1354(b).) The Court rules as follows:

Deposition of Plaintiff, in its entirety: Overruled. If Plaintiff did not provide the cited pages, then the Court cannot rely on the exhibits anyway. Defendant appears to be improperly objecting not to evidence, but to the lack of evidence due to the absence of certain pages. This is not a reason to disregard the other pages that were provided.

Deposition of Adam Lowery, in its entirety: Overruled. If Plaintiff did not provide the cited pages, then the Court cannot rely on the exhibits anyway. Defendant appears to be improperly objecting not to evidence, but to the lack of evidence due to the absence of certain pages. This is not a reason to disregard the other pages that were provided.

Declaration of Juan Gomez Davila, in its entirety: Overruled. Defendant has not shown any improper effect from obtaining this declaration other than the fact of obtaining it. Whether Plaintiff obtained any privileged information is merely speculative and is not reflected in the contents of the declaration. (See Reply at p. 3; see also McMillan v. Shadow Ridge at Oak Park Homeowner’s Assn. (2008) 165 Cal.App.4th 960, 968 [“‘The court’s goal is not to impose a penalty, as the propriety of punishment for violation of the Rules of Professional Conduct is a matter within the purview of the State Bar, not of a court presiding over the affected case. [Citations.] Instead, what the court must do is focus on identifying an appropriate remedy for whatever improper effect the attorney’s misconduct may have had in the case before it.’ [Citation.] There was no improper effect.”].)

Declaration of Juan Gomez Davila ¶¶ 6-9: Overruled. These paragraphs do not purport to authenticate any documents, and the declarant is setting forth his personal knowledge and recollection of the events. With respect to statements that the notes placed Plaintiff off work for certain time periods, although this could be hearsay, the Court further addresses this evidence in the discussion below.

Exhibit 6, Work Activity Status Report: Sustained for lack of proper authentication.

Exhibit 8, Termination Letter Request: Overruled. Plaintiff authenticated this exhibit in his deposition. (Plaintiff Depo. at p. 53 [regarding Salazar 00013].)

A. The Parties’ Documents Do Not Fully Comply With the Court’s Electronic Filing Requirements.

Under the Court’s First Amended General Order for electronic filing, “[e]lectronic documents must be electronically filed in PDF, text searchable format when technologically feasible without impairment of the document’s image.” (General Order No. 2019-GEN-014-00, at ¶ 6(a).) Additionally, the table of contents and all attachments, including exhibits, must be bookmarked. (General Order No. 2019-GEN-014-00, at ¶¶ 6(b)-(d); California Rules of Court, rule 3.1110(f)(4).)

Defendant’s motion’s table of contents did not include any bookmarks. Plaintiff’s opposition’s table of contents and exhibits did not include any bookmarks, which is particularly troublesome when navigating the voluminous pages of exhibits. Several documents, including the deposition transcripts, are also not text-searchable.

If the parties continue to electronically file noncompliant documents in this action, the Court may strike the filings or issue sanctions.

“Separate statements are required not to satisfy a sadistic urge to torment lawyers, but rather to afford due process to opposing parties and to permit trial courts to expeditiously review complex motions for [summary adjudication] and summary judgment to determine quickly and efficiently whether material facts are undisputed.” (United Community Church v. Garcin (1991) 231 Cal.App.3d 327, 335 (United Community Church).) “The separate statement ‘provides a convenient and expeditious vehicle permitting the trial court to hone in on the truly disputed facts.’ [Citation.]” (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 252 (Nazir).) “[I]t is no answer to say the facts set out in the supporting evidence and memorandum of points and authorities are sufficient. ‘Such an argument does not aid the trial court at all since it then has to cull through often discursive argument to determine what is admitted, what is contested, and where the evidence on each side of the issue is located.’” (United Community Church, supra, 231 Cal.App.3d at p. 335.) “The due process aspect of the separate statement requirement is self-evident—to inform the opposing party of the evidence to be disputed to defeat the motion.” (Id. at p. 337.)

Defendant’s separate statement is 34 pages long and contains 190 “material” facts. Like the “inappropriate” separate statement in Nazir, “[t]he exact number of supposedly material facts is impossible to know without actually counting them,” as many of the same facts are repeated. (Nazir, supra, 178 Cal.App.4th at p. 252.) Many facts are unnecessary and are not, in fact, material to the claims or defenses. Additionally, what a party said or perceived is not a “material fact”; rather, it is evidence of a fact. (Reeves v. Safeway Stores, Inc. (2004) 121 Cal.App.4th 95, 106; see, e.g., UMF 30-31.)

In his Separate Statement of Additional Material Facts, Plaintiff similarly included “material facts” about evidence, not facts, such as Defendant’s discovery responses and witnesses’ testimony. (See, e.g., AMF 24-27.) Additionally, Plaintiff inserted improper argument in his responses to Defendant’s separate statement. The separate statement of material facts is not the proper place for objections or argument. The separate statement in opposition to a motion for summary judgment is supposed to “unequivocally state whether the fact is ‘disputed’ or ‘undisputed.’ An opposing party who contends that a fact is disputed must state, on the right side of the page directly opposite the fact in dispute, the nature of the dispute and describe the evidence that supports the position that the fact is controverted. Citation to the evidence in support of the position that a fact is controverted must include reference to the exhibit, title, page, and line numbers.” (California Rules of Court, rule 3.1350(f)(2).)

“[T]trial courts have the inherent power to strike proposed ‘undisputed facts’ that fail to comply with the statutory requirements and that are formulated so as to impede rather than aid an orderly determination whether the case presents triable material issues of fact. If such an order leaves the required separate statement insufficient to support the motion, the court is justified in denying the motion on that basis.” (Ibid.) Although the Court will not strike portions of the separate statement here, counsel is cautioned to include only facts that are truly material to the motion, along with proper responses to the separate statement.

Defendant entered a Contract for Services with the Department of Veteran Affairs to provide landscaping and lawn maintenance services for the Veteran Affairs Sepulveda Ambulatory Care Center and Nursing Home (“Sepulveda Care Center”). (Undisputed Material Facts “UMF” 10, 33, 55, 77, 99, 121, 143, 165.) As part of the Contract, Defendant was required to provide and maintain a “minimum of six (6) Full Time Equivalent Employees (FTEE).” (UMF 11, 34, 56, 78, 100, 122, 144, 166.)

Plaintiff began working for Defendant on May 16, 2016 as an irrigation laborer or groundskeeper, and his job duties revolved around irrigation, including fixing sprinklers and sprinkler heads, broken pipes, and working with the systems for the grass. (UMF 12, 17, 35, 40, 57, 62, 79, 84, 101, 106, 123, 128, 145, 150, 167, 172; Additional Material Facts “AMF” 1.) During Plaintiff’s employment, Defendant had only a total of six employees at the Sepulveda Care Center, including Plaintiff. (UMF 13, 36, 58, 80, 102, 124, 146, 168.)

Plaintiff requested 30 days off for shoulder surgery. (UMF 22, 45, 67, 89, 111, 133, 155, 177.) Plaintiff underwent surgery on his shoulder on or about October 12, 2018, which was his last actual day of work for Defendant. (UMF 19, 42, 64, 86, 108, 130, 152, 174, 187; AMF 9, 11.) On October 19, 2018, Defendant deposited into Plaintiff’s account the wages owed through October 12, 2018. (UMF 188.)

Plaintiff did not return after his leave. (See UMF 25-27, 48-49, 70-71, 92-93, 114-115, 136-137, 158-159, 180-181.) Plaintiff had a phone call Adam Lowery in December 2018, and Lowery instructed Plaintiff to send medical documents to supervisor Juan Gomez Davila. (See UMF 29-30, 51-52, 73-74, 95-96, 117-118, 139-140, 161-162, 183-184.)

Defendant hired a replacement for Plaintiff in January 2019 due to its contractual obligation to have six full-time employees. (UMF 32, 54, 76, 98, 120, 142, 164, 186.)

On January 17, 2019, Plaintiff filed his petition for Chapter 7 bankruptcy in the United States Central District Bankruptcy Court of California. (UMF 1.) Plaintiff filed a Declaration by Debtor As to Whether Income Was Received From An Employer Within 60 Days of The Petition Date where he indicated that he had not been paid by an employer during the 60-day period before the Petition Date. (UMF 4; see Defendant’s RJN, Ex. 2.) On February 15, 2019, Plaintiff filed an Amended Schedule of Assets and Liabilities. (UMF 5.) In Form 106A/B, Plaintiff indicated that he did not have any claims against third parties, such as employment disputes. (UMF 6; see Defendant’s RJN, Ex. 3 at ¶ 33.) On April 29, 2019, the Central District Bankruptcy Court of California issued an Order of Discharge and closed Plaintiff’s Chapter 7 bankruptcy case. (UMF 7.)

Plaintiff first sent medical documents to Lowery in March 2019. (UMF 21, 28, 44, 50, 66, 72, 88, 94, 110, 116, 132, 138, 154, 160, 176, 182.)

On February 12, 2020, Plaintiff filed his Complaint with the Department of Fair Employment and Housing (“DFEH”) for claims against Defendant. (UMF 8.)

For each claim in the complaint, the defendant moving for adjudication must satisfy the initial burden of proof by showing that one or more elements of a cause of action cannot be established or that there is a complete defense to a cause of action. (Code Civ. Proc., § 437c, subd. (p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520 (Scalf).) Then the burden shifts to the plaintiff to show that a triable issue of material fact exists as to that cause of action or a defense. (Code Civ. Proc., § 437c, subd. (p)(2); Scalf, supra, 128 Cal.App.4th at p. 1520.) 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, 162-163.)

A. Defendant Has Not Shown That Plaintiff’s Claims Are Barred By His Bankruptcy Proceedings.

Defendant argues that Plaintiff’s claims were part of his bankruptcy estate, and therefore he lacks standing to bring the first through eighth causes of action. (Motion at pp. 10-11.) Defendant relies only on the fact that Plaintiff did not list claims against Defendant in his initial or amended bankruptcy schedules. (Motion at p. 11; UMF 6.) This is insufficient to meet Defendant’s initial burden.

Defendant also argues that judicial estoppel bars all of Plaintiff’s claims because he took inconsistent positions in his bankruptcy proceeding and in this action. (Motion at pp. 12-14.) Judicial estoppel applies when “(1) the same party has taken two positions; (2) the positions were taken in judicial or quasi-judicial administrative proceedings; (3) the party was successful in asserting the first position (i.e., the tribunal adopted the position or accepted it as true); (4) the two positions are totally inconsistent; and (5) the first position was not taken as a result of ignorance, fraud, or mistake.” (Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 183.) Judicial estoppel can be applied only against a party that has taken positions so inconsistent that one necessarily excludes the other. (Bell v. Wells Fargo Bank, N.A. (1998) 62 Cal.App.4th 1382, 1387.)

Defendant argues that in his bankruptcy proceedings, Plaintiff incorrectly took the position that he had no employment disputes. (Motion at pp. 12-13.) Plaintiff’s DFEH Complaint and the Complaint in this action both alleged that Plaintiff was terminated on March 1, 2019, and his claims arise from this termination. (Motion, Ex. A.) This is not inconsistent with Plaintiff’s January 17, 2019 bankruptcy petition and February 15, 2019 amendment indicating no existing employment claims at that time. According to the DFEH Complaint and this Complaint, Plaintiff’s claims accrued in March 2019, upon termination.

Additionally, Plaintiff’s January 17, 2019 declaration filed with his petition had only two checkbox options for the 60-day period before the petition date: “I was paid by an employer. Attached are copies of all statements of of earning, pay stubs, or other proof of employment income I received from my employer during this 60-day period. . . .” or “I was not paid by an employer because I was either self-employed only, or not employed.” (Defendant’s RJN, Ex. 2.) Plaintiff checked the second box, which is consistent with the facts presented in this action—that Defendant last paid Plaintiff on October 19, 2018. (UMF 188.) There was no option for Plaintiff to select that he was not paid by an employer in the prior 60 days due to a leave of absence or other reason that maintained his employment. Thus, Plaintiff’s selection of the second box regarding his payment status is not necessarily an inconsistent statement regarding his employment status. Additionally, Terri Browning testified that no termination came through, and she agreed that just being off payroll did not mean that Plaintiff was no longer employed. (Motion, Ex. I at pp. 40-41.)

To the extent that Defendant argues that Plaintiff knew of his pending employment claims when he filed and amended his bankruptcy petition (Motion at pp. 13-14), this is mere speculation. Defendant contends that Plaintiff was represented by “experienced bankruptcy counsel,” relying on hearsay from counsel’s website proclaiming that the attorney is “the best bankruptcy [attorney] you could retain.” (Motion at pp. 13-14 & fn. 2; UMF 2.) From this, Defendant only speculates that Plaintiff’s bankruptcy counsel “necessarily inquired with Plaintiff regarding whether he had any claims outstanding, including claims against his former employer.” (Motion at p. 14.)

Defendant also relies on Plaintiff’s testimony at deposition, where he was asked, “When—at the time you filed for bankruptcy were you being represented by the firm representing you in this current case against ValleyScapes?” (Motion, Ex. C at p. 55; UMF 3.) Plaintiff responded, “Exactly I don’t remember the dates, as I told you, but I think so. I think perhaps they were representing me already.” (Motion, Ex. C at p. 55.) This testimony is equivocal and uncertain. Plaintiff then confirmed that he was represented by his current attorneys at the time an unidentified letter was written. (Ibid.) This is insufficient to prove the timeline of when Plaintiff retained his current employment counsel.

Even if this were sufficient to show that Plaintiff knew of his employment claims when he filed his bankruptcy petition, Plaintiff provides evidence that his attorney-client retainer contact was executed in May 2019, after his bankruptcy proceedings concluded. (Opposition, Ex. 5.)

B. Defendant Has Not Met Its Burden Of Showing No Discrimination Or Retaliation, and Plaintiff Has Shown Disputed Facts (First, Second, Eighth Causes of Action).

In the first and second causes of action, Plaintiff alleges that he was discriminated and retaliated against because of his disabilities or medical condition and because he took medical leave. (Complaint ¶¶ 38-39, 47-48.)

An employee’s prima facie claim of discrimination requires “(1) the employee’s membership in a classification protected by the statute; (2) discriminatory animus on the part of the employer toward members of that classification; (3) an action by the employer adverse to the employee’s interests; (4) a causal link between the discriminatory animus and the adverse action; (5) damage to the employee; and (6) a causal link between the adverse action and the damage.” (Mamou v. Trendwest Resorts, Inc. (2008) 165 Cal.App.4th 686, 713.) If an employee makes a prima facie showing, the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for the adverse action. (Id. at p. 714.)

“In an employment discrimination case, an employer may move for summary judgment against a discrimination cause of action with evidence of a legitimate, nondiscriminatory reason for the adverse employment action. [Citation.] A legitimate, nondiscriminatory reason is one that is unrelated to prohibited bias and that, if true, would preclude a finding of discrimination. [Citation.] The employer’s evidence must be sufficient to allow the trier of fact to conclude that it is more likely than not that on or more legitimate, nondiscriminatory reasons were the sole basis for the adverse employment action.” (Featherstone v. Southern California Permanente Medical Group (2017) 10 Cal.App.5th 1150, 1158 (Featherstone).) Then the burden shifts to the employee “to present evidence that the employer’s decision was motivated at least in part by prohibited discrimination.” (Id. at pp. 1158-1159.) “The plaintiff’s evidence must be sufficient to support a reasonable inference that discrimination was a substantial motivating factor in the decision. [Citation.] The stronger the employer’s showing of a legitimate, nondiscriminatory reason, the stronger the plaintiff’s evidence must be in order to create a reasonable inference of a discriminatory motive.” (Id. at p. 1159.)

“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.]” (Featherstone, supra, 10 Cal.App.5th at p. 1159.) “To show that an employer’s reason for termination is pretextual, an employee ‘ “cannot simply show that the employer’s decision was wrong or mistaken, since the factual dispute at issue is whether discriminatory animus motivated the employer, not whether the employer is wise, shrewd, prudent or competent.” ’ [Citation.] To meet his or her burden, 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,’ ” ’ and hence infer ‘ “the employer did not act for [the asserted] nondiscriminatory reasons.” ’ [Citations.]” (Ibid.) “[A]n employer is entitled to summary judgment if, considering the employer’s innocent explanation for its actions, the evidence as a whole is insufficient to permit a rational inference that the employer’s actual motive was discriminatory.” (Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 361.)

Similarly, to establish a prima facie case of retaliation under 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. [Citation.]” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.)

Defendant argues that Plaintiff cannot establish a prima facie case of disability discrimination or retaliation. (Motion at pp. 16-18.) According to Defendant, it would not have taken an adverse employment action because it did not have sufficient knowledge about Plaintiff’s disability, aside from his own assertion that he would return in 30 days. (Id. at p. 16.) Defendant relies on Plaintiff’s failure to submit medical documentation until March 2019. (Ibid.; see UMF 31; Motion, Ex. C at pp. 29, 42-43.) However, Plaintiff also testified that he did not send his medical reports in 2018 because “they never asked for anything They never asked me how I was doing. They never asked me, you know, that they needed me to send any papers. Nothing, never.” (Motion, Ex. C at p. 43.) This shows that Defendants request and need for documentation is a disputed fact.

Even if this were sufficient to meet Defendant’s burden, Plaintiff provides further evidence disputing Defendant’s argument. Davila declares that the day after Plaintiff’s surgery, he provided Davila with a doctor’s note placing Plaintiff off work for about a month. (Davila Decl. ¶ 6.) In November 2018, Plaintiff gave Davila another doctor’s note placing him off work for two or three months. (Davila Decl. ¶ 7.) In March 2019, Plaintiff gave Davila a doctor’s note placing him on work restrictions. (Davila Decl. ¶ 8.) For each of these three notes, Davila took a picture on his phone and texted it to Terri Browning or another office worker for Defendant. (Davila Decl. ¶¶ 6-8.) Davila’s statements about the time periods and restrictions are hearsay when used to prove the truth of those periods of medical leave and restrictions. However, Davila’s other statements about the provision and existence of the doctor’s notes is sufficient to create triable issues regarding whether and when Plaintiff informed Defendant about his medical status, why Plaintiff did not return to work after 30 days, and whether Defendant knew the reasons for Plaintiff’s failure to return to work after 30 days.

Defendant argues that even if Plaintiff could establish a prima facie case of discrimination or retaliation, they had a legitimate and nondiscriminatory reason for their actions. (Motion at pp. 17-19.) According to Defendant, it hired someone to replace Plaintiff due to its contractual obligation to maintain six employees after Plaintiff did not return. (Ibid.) As discussed previously, there are triable issues regarding Plaintiff’s failure to return to work and Defendant’s knowledge as to why—creating further triable issues regarding whether Defendant reasonably believed that Plaintiff abandoned his job. Regarding Defendant’s obligation to maintain six employees, if Defendant did know that Plaintiff was required to remain on medical leave, there is no explanation about if or why maintaining his employment at that status would be a contractual breach, or if Defendant could have temporarily covered Plaintiff’s absence.

And even if Defendant did meet its initial burden of showing a legitimate and nondiscriminatory reason, Davila declares that Defendant did not hire anyone to replace Plaintiff until December 2019, contradicting Defendant’s position that it had to replace Plaintiff in January 2019 to maintain its contractually obligated minimum of six employees. (Davila Decl. ¶ 9.)

The eighth cause of action alleges wrongful termination in violation of public policy based on Defendant’s violations of FEHA. (Complaint ¶¶ 102-103.) Defendant acknowledges that “[t]he analysis for a common law wrongful termination claim based upon the public policies found in the FEHA is the same as the one entered into under the statutory claims themselves.” (Motion at p. 25.) Accordingly, for the same reasons, there are disputed facts as to the eighth cause of action.

Summary adjudication of the first, second, and eighth causes of action is denied.

C. Because the Court Denies Summary Adjudication For Discrimination and Retaliation, the Court Also Denies Summary Adjudication For Failure to Prevent (Third Cause of Action).

The third cause of action alleges failure to prevent discrimination and retaliation. Failure to prevent harassment, discrimination, or retaliation in violation of FEHA requires that (1) plaintiff was an employee of defendant, (2) plaintiff was subjected to discrimination or retaliation in the course of employment, (3) defendant failed to take all reasonable steps to prevent the discrimination or retaliation, (4) plaintiff was harmed, and (5) defendant’s failure to take all reasonable steps to prevent discrimination and/or retaliation was a substantial factor in causing plaintiff’s harm. (CACI 2527.)

Because the Court denied summary adjudication of the underlying causes of action for discrimination and retaliation, summary adjudication of the third cause of action is also denied.

D. There Are Triable Issues About Providing Reasonable Accommodations and Engagement in the Interactive Process (Fourth and Fifth Causes of Action).

The fourth cause of action alleges failure to provide reasonable accommodations, and the fifth cause of action alleges failure to engage in a good faith interactive process. “The essential elements of a failure to accommodate claim are: (1) the¿plaintiff has a disability covered by the FEHA; (2) the plaintiff is a qualified individual (i.e., he or she can perform the essential functions of the position); and (3) the employer failed to reasonably accommodate the plaintiff's disability. [Citation]” (Cuiellette¿v. City of Los Angeles¿(2011) 194 Cal.App.4th¿757, 766.)¿¿“Two principles underlie a cause of action for failure to provide a reasonable¿accommodation. First, the employee must request an accommodation. [Citation.] Second, the parties must engage in an interactive process regarding the requested accommodation and, if the process fails, responsibility for the failure rests with the party who failed to participate in good faith. [Citation.] While a claim of failure to accommodate is independent of a cause of action for failure to engage in an interactive dialogue, each necessarily implicates the other. [Citation.]” (Moore v. Regents of University of California¿(2016) 248 Cal.App.4th¿216, 242.)

The Complaint alleges that Plaintiff requested reinstatement with work restrictions, but instead, he was terminated and replaced. (Complaint ¶¶ 25-27.) Defendant argues that it did provide Plaintiff with the requested initial 30-day medical leave, and Plaintiff did not provide medical documentation with specific restrictions. (Motion at pp. 21, 23-24.)

Assuming that Defendant’s evidence is sufficient to meet its burden of showing that Plaintiff did not request accommodations (see UMF 88, 94), Plaintiff provides evidence that he presented doctor’s notes to Davila, who sent them to someone at Defendant’s office (Davila Decl. ¶¶ 6-8). Plaintiff also testified that Defendant did not have a process for requesting an accommodation due to injury. (Opposition, Ex. 1 at pp. 22-23.) Plaintiff had a phone call with Lowery in December 2018 during which he said he would need work restrictions. (Opposition, Ex. 1 at p. 25.) Plaintiff also “kept calling and letting him know that [Plaintiff] was ill.” (Motion, Ex. C at p. 35.) Lowery told Plaintiff to send the medical papers to Davila, and after Plaintiff sent them, “it took forever for him to contact [Plaintiff] back.” (Opposition, Ex. 1 at p. 37.) Viewing this evidence in the light more favorable to Plaintiff, the non-moving party, there are triable issues regarding the communication about Plaintiff’s medical leave and need for accommodations.

Defendant also argues that holding Plaintiff’s position open for a significant time or hiring a temporary worker would be an undue hardship. (Motion at p. 22.) This argument and any supporting evidence are not within Defendant’s separate statement. “[I]n ruling on a motion for summary judgment, a trial court must consider all the evidence submitted, except the court may ignore evidence not disclosed in moving party’s separate statement of undisputed facts.” (San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A. 102 Cal.App.4th 308, 315.) “In exercising its discretion whether or not to consider evidence undisclosed in the separate statement, the court should also consider due process implications noted in United Community Church. (Id. at p. 316.) The only evidence cited in support is Defendant’s contract with the Department of Veterans Affairs, which required contractor employee identification and badges. (Motion at p. 22, citing Ex. G at p. 9.) This does not establish that leaving Plaintiff’s position open or hiring a temporary employee would be an undue hardship.

Defendant argues that the CFRA does not apply because it did not employ at least 50 people within a 75-mile radius. (Motion at p. 24.)

At the time of Plaintiff’s leave in late 2018 through March 2019, the CFRA “ma[de] it an unlawful employment practice for an employer of 50 or more persons to refuse to grant a request by an employee to take up to 12 workweeks in any 12-month period for family care and medical leave.” (Faust v. California Portland Cement Co. (2007) 150 Cal.App.4th 864, 878, citing Gov. Code, § 12945.2, subds. (a), (c)(2)(A).) Defendant provides evidence that it had a total of only six employees at the Sepulveda Care Center. (UMF 124.) Plaintiff does not address this in his opposition.

F. Because Underlying Claims Survive, the Request for Declaratory Relief Survives (Seventh Cause of Action).

The seventh cause of action seeks “a judicial determination of his rights and duties, and a declaration that his disabilities and/or perceived disabilities, engagement in protected activity, medical condition, medical leave, and/or some combination of these protected characteristics was a substantial motivating factor in the decisions to subject him to the aforementioned adverse employment actions.” (Complaint ¶ 97.)

Defendant argues that there was no violation of Plaintiff’s rights and there are no underlying causes of action. (Motion at p. 24.)

Because some of Plaintiff’s underlying claims survive, summary adjudication of the seventh cause of action is denied.

The ninth cause of action alleges that Defendant did not pay all accrued wages and other compensation due immediately upon termination. (Complaint ¶ 112.)

Defendant cites Plaintiff’s final paycheck stub and contends that it “does not contain any reference to [any] accrued but unused paid time off.” (Motion at p. 25; UMF 188; Motion, Ex. H.) Plaintiff cites no evidence in opposition. (Opposition at p. 22.) Instead, Plaintiff “asserts he has not been paid all outstanding wages by Defendant, and specifically, asserts he has not been paid for all the sick time he accrued while working for Defendant.” (Ibid.) However, as Defendant notes (Reply at p. 11), “an employer is not required to provide compensation to an employee for accrued, unused paid sick days upon termination, resignation, retirement, or other separation from employment.” (Lab. Code, § 246, subd. (g)(1).)

The motion for summary adjudication is GRANTED for the sixth and ninth causes of action and is otherwise DENIED.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. Parties intending to appear are encouraged to appear remotely and should be prepared to comply with Dept. 48’s new requirement that those attending court in person wear a surgical or N95 or KN95 mask.

Hon. Thomas D. Long

Judge of the Superior Court