Judge Thomas D. Long, Case Number: 21STCV20780, Date: 2025-05-08 Tentative Ruling

On February 25, 2025 a jury returned a verdict in favor of Plaintiff Alejandra Moreno and against Defendant Shims Bargain Inc. on Plaintiff’s seventh cause of action for violation of the Families First Coronavirus Response Act (“FFCRA”) and eighth cause of action for wrongful termination in violation of public policy.

On March 12, 2025, Defendant filed a Motion for Judgment Notwithstanding the Verdict.

The court must render judgment notwithstanding the verdict whenever a motion for a directed verdict for the aggrieved party should have been granted. (Code Civ. Proc., § 629.) “A motion for judgment notwithstanding the verdict may be granted only if it appears from the evidence, viewed in the light most favorable to the party securing the verdict, that there is no substantial evidence in support.” (Sweatman v. Department of Veterans Affairs (2001) 25 Cal.4th 62, 68.) “If the evidence is conflicting or if several reasonable inferences may be drawn, the motion for judgment notwithstanding the verdict should be denied.” (Hauter v. Zogarts (1975) 14 Cal.3d 104, 110.)

The jury found that Defendant’s decision to terminate Plaintiff’s employment was substantially motivated by her taking time off or requesting time off to care for a child whose school or place of care was closed, or whose childcare provider was unavailable for reasons related to COVID-19. The jury awarded Plaintiff $40,000.00 in non-economic damages.

Defendant argues that the verdict is not supported by substantial evidence because the government’s mandatory school closure provision does not apply when a school is closed for reasons unrelated to COVID-19, such as a regularly scheduled summer break. (Motion at p. 6.) Defendant contends that it properly denied Plaintiff’s request for childcare leave from June 22, 2020 to July 5, 2020 because “a regularly scheduled summer break in July and August 2020 does not qualify as a ‘COVID-19-related” school closure.’” (Id. at p. 9.) Similarly, Plaintiff’s absences from July 20, 2020 to August 4, 2020 and August 7, 2020 to August 20, 2020 were unexcused because schools were on summer break and reopened on August 18, 2020. (Id. at pp. 16-17.)

Defendant argues that Plaintiff did not offer any evidence to refute the distinction relating to government-mandated school closure due to COVID-19 versus summer break when school is not regularly in session. (Motion at pp. 10-13.) According to Defendant, “[s]ince Plaintiff was not eligible for the FFCRA childcare leave when her children’s school was closed for reasons unrelated to COVID-19, specifically the annual summer break from June 12, 2020 to August 18, 2020, the jury’s finding that Defendant wrongfully terminated Plaintiff ‘for taking off or requesting time off to care a child whose school or place of care was closed, or whose childcare provider is unavailable for reasons related to COVID-19’ is not supported by substantial evidence.” (Id. at pp. 13-14.)

FFCRA’s Division E is the Emergency Paid Sick Leave Act (“EPSLA”). (Pub. L. No. 116-127, § 5101, 134 Stat. 178, 195-198 (2020).) Under the EPSLA, it is unlawful for any employer to “discharge, discipline, or in any other manner discriminate against” any employee who takes leave in accordance with the EPSLA. (Id., § 5104.) An employer must provide paid sick leave to an employee who is unable to work because “[t]he employee is caring for a son or daughter of such employee if the school or place of care of the son or daughter has been closed, or the child care provider of such son or daughter is unavailable, due to COVID-19 precautions.” (Id., § 5102, subd. (a)(5).)

At trial, Plaintiff provided evidence that on May 10, 2020, she informed Defendant that she did not have child care because her sister who had agreed to take care of her children tested positive for COVID-19 and was required to quarantine. (Transcript at pp. 43-44.) Additionally, child care places in her area had shut down, and neighbors were taking care of their own families. (Id. at p. 44.) On July 22, 2020, Plaintiff informed Defendant that she had looked for childcare sites around her area but they were all closed and that she did not have family members to care for her children. (Motion, Ex. K [Trial Exhibit 333]; Opposition, Ex. 2 [Trial Exhibit 333-11].) On August 7, 2020, Defendant informed Plaintiff that her “request for childcare leave is not covered under FFCRA,” even though Plaintiff’s request stated, “I don’t have childcare,” she was a single parent whose family did not live there to watch her children, and her best friend who was going to help with child care had tested positive for COVID. (Motion, Ex. K [Trial Exhibits 333-3 to 333-5].) On September 14, 2020, Plaintiff informed Defendant that she needed a leave of absence was because of “no childcare.” (Opposition, Ex. 3 [Trial Exhibit 345-4].)

This evidence can—and did—support a finding that a child care provider was unavailable due to COVID-19 precautions, and that Defendant’s failure to provide Plaintiff paid leave and Defendant’s termination of Plaintiff’s employment was unlawful under the FFCRA’s Emergency Paid Sick Leave Act.

The Court determines that when viewing the evidence in the light most favorable to Plaintiff (the opposing party), several reasonable inferences may be drawn from the evidence to support the verdict.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. If all parties in the case submit on the tentative ruling, no appearances before the Court are required unless a companion hearing (for example, a Case Management Conference) is also on calendar.

Hon. Thomas D. Long

Judge of the Superior Court