Judge Thomas D. Long, Case Number: 21STCV31222, Date: 2023-07-20 Tentative Ruling

On August 24, 2021, Plaintiff Joanna Hernandez filed this action against Defendants Rafie & Khoshbin Dental Corp. and Torrance Dental Center, alleging (1) discrimination based on sex/pregnancy; (2) retaliation; (3) failure to prevent discrimination; and (4) wrongful termination based on public policy.

On May 5, 2023, Defendants filed a motion for summary judgment, or in the alternative, summary adjudication.

“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.)

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 (Reeves); see, e.g., UMF 28-34.) “The separate statement should include only material facts and not any facts that are not pertinent to the disposition of the motion.” (California Rules of Court, rule 3.1350(d)(2).)

Additionally, Defendants’ “Objections and Reply to Plaintiff’s Separate Statement” is inappropriate. “There is no provision in the statute for this.” (Nazir, supra, 178 Cal.App.4th at p. 252.)

A. Plaintiff’s Objections to the Declarations of Glenda Ong and Sherrie Khoshbin

Sustained, including as to exhibits authenticated by only these declarations. The declarations are electronically “signed” via a plain text font that is not unique or capable of verification. The electronic signatures do not comply with California Rules of Court, rule 2.257(b)(1), which provides: “If the declarant is not the electronic filer, the electronic signature must be unique to the declarant, capable of verification, under the sole control of the declarant, and linked to data in such a manner that if the data are changed, the electronic signature is invalidated.” Despite Plaintiff’s objections and evidentiary challenges to the declarations on this basis, Defendants inexplicably did not remedy the errors with its reply.

Plaintiff is a former employee of Defendants, a small dental office. (Undisputed Material Facts “UMF” 1.) Defendants’ owner was generally pleased with Plaintiff’s work during the first few months of her employment, but subsequently developed concerns. (UMF 7, 10.) Plaintiff was not consistent in having patients update their medical history, wasn’t calling patients to confirm appointments, was spending a lot of time on her cell phone, and overall was not as productive as she was before. (UMF 11.)

In March 2021, the office decided to have Plaintiff teach Jocelyn, a new dental assistant, the duties of the office receptionist. (UMF 21.)

In May 2021, Defendants’ owner learned that Plaintiff had placed the insurance information of one patient into the chart of another patient, so he decided to terminate Plaintiff’s employment. (UMF 13.)

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. Defendants Have Proven a Legitimate and Non-Discriminatory Reason for the Alleged Discrimination and Retaliation (First and Second Causes of Action).

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.) “To establish that an employer has discriminated on the basis of a disability in violation of FEHA, the plaintiff employee has the burden of proving he or she could perform ‘the essential functions of the job with or without reasonable accommodation.’” (Atkins, supra, 8 Cal.App.5th at p. 716.)

“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.)

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.)

Defendants argue that they had a legitimate, non-discriminatory reason for terminating Plaintiff’s employment. According to Defendants, “Plaintiff's employment was terminated because she made mistake after mistake.” (Motion at p. 8.) Defendants’ admissible evidence regarding Plaintiff’s job performance is sufficient to meet their initial burden. (See UMF 7, 10, 11, 13.)

Plaintiff argues that Office Manager Glenda Ong, who recommended Plaintiff’s termination, made a number of negative comments to Plaintiff indicating a bias against pregnancy. (Opposition at p. 17.) However, Plaintiff acknowledges that Ong made these comments before she ever told Ong that she was pregnant. (Hernandez Decl. ¶ 7.) Plaintiff informed Ong of her pregnancy on February 24, 2021. (Hernandez Decl. ¶ 6.) But by early January 2021, “the consensus among [Rafie], Ms. Ong and Dr. Khoshbin was that [Plaintiff] was not well suited for the office receptionist position and should be replaced.” (Rafie Decl. ¶ 9.) Thus, Plaintiff’s evidence of Ong’s bias against pregnancy cannot show causation for her termination when that decision was made before Plaintiff informed Defendants of her pregnancy.

Plaintiff also argues that Ong recommended that Plaintiff be fired after Plaintiff “went around the office proclaiming she could not be fired because she was pregnant and she would sue them if they did fire her.” (Opposition at p. 17; see Ong Depo. at pp. 119-120.) Curiously, Plaintiff’s own evidence shows that at her deposition, Plaintiff denied making these announcements. (Opposition at pp. 18, 20; Plaintiff Depo. at p. 62.)

If Ong’s testimony is believed, it still does not show that Defendants terminated Plaintiff due to her pregnancy. Rather, it shows that while Ong and Rafie already observed that “instead of getting an improvement from [Plaintiff], she’s getting worse,” Plaintiff’s proclamations were “not healthy anymore, because there are other people in the office, you know, who is getting affected by these kind[s] of statement[s].” (Ong Depo. at p. 119.) If Plaintiff’s testimony is believed, Plaintiff did not make those statements, and they necessarily could not be a basis for Ong recommending that Plaintiff be fired. In either scenario, the evidence does not overcome other evidence of a January 2021 determination that Plaintiff should be replaced due to her job performance. (Rafie Decl. ¶ 9.) Furthermore, Plaintiff provides evidence of Warning Notices/Disciplinary Action Notices from February 2020 to November 2020, prior to the January 2021 decision and Plaintiff’s February 2021 pregnancy announcement. (Hernandez Decl., Ex. 3-5.)

Plaintiff has not met her burden of showing substantial evidence of pretext or intent sufficient to create a triable issue of fact.

B. Because Defendants Prevail on the Underlying Claims, It Cannot Be Liable For Failure to Prevent (Third Cause of Action).

Defendants argue that because there was no discrimination, they also cannot be liable for failing to prevent discrimination. (Motion at pp. 9-10; see also Glynn v. Superior Court (2019) 42 Cal.App.5th 47, 56.)

C. There Is No Basis for Wrongful Termination in Violation of Public Policy (Fourth Cause of Action).

An employee may bring a tort cause of action when his employer terminates his employment in contravention of public policy. (Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167, 177.) The public policy must be “tethered to fundamental policies that are delineated in constitutional or statutory provisions.” (Gantt v. Sentry Insurance (1992) 1 Cal.4th 1083, 1095.)

Plaintiff bases this cause of action on Defendants’ alleged violations of FEHA. (Complaint ¶ 29.) Without a FEHA violation, there is no violation of public policy.

The motion for summary judgment, or in the alternative, summary adjudication is GRANTED.

A Non-Appearance Case Review Re: Submission of Proposed Judgment is scheduled for 07/26/2023 at 8:30 a.m. in Department 48 at Stanley Mosk Coruthouse.

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