Judge Thomas D. Long, Case Number: 22TSCV06702, Date: 2023-09-19 Tentative Ruling

On February 23, 2022, Plaintiff Sophia Perusset filed this action against Defendants Tutor Time Learning Centers LLC (“Tutor Time”) and Danika King. Plaintiff later named Learning Care Group Inc. as Doe 1. The Complaint alleges (1) wrongful termination in violation of public policy; (2) whistleblower retaliation in violation of the Labor Code; (3) disability harassment in violation of the Fair Employment and Housing Act (“FEHA”); (4) disability discrimination in violation of FEHA; (5) failure to provide reasonable accommodation in violation of FEHA; (6) failure to engage in the interactive process in violation of FEHA; (7) retaliation in violation of FEHA; (8) failure to prevent harassment, discrimination, and retaliation in violation of FEHA; (9) failure to pay all wages; (10) failure to pay minimum wage; (11) failure to pay overtime compensation; (12) failure to pay wages due upon termination/waiting time penalties; (13) failure to issue accurate itemized wage statements; (14) failure to deliver personnel file; and (15) failure to indemnify/reimburse necessary expenditures incurred during discharge of work duties.

On April 14, 2023, Tutor Time and King (collectively, “Defendants”) filed a motion for summary adjudication. On April 18, 2023, Defendants filed a Notice of Errata, correcting the versions of their memorandum of points and authorities, separate statement, and some declarations.

Defendants’ request for judicial notice of “GoogleMaps image reflecting distance and approximate time between Tutor Time Learning Center and West Valley Rehab” is denied. This is not a proper subject of judicial notice, and Defendants rely on the contents, not just the existence, of the document.

Defendants’ request for judicial notice of “See Her Thrive’s Employer’s Guide to PMDD (Premenstrual Dysphoric Disorder)” is denied. This is not a proper subject of judicial notice, and Defendants rely on the contents, not just the existence, of the document. Additionally, the Court generally will not consider new evidence submitted with a reply.¿¿(See¿Jay v. Mahaffey¿(2013) 218 Cal.App.4th 1522, 1537-1538.)

Plaintiff’s Objections to the Declaration of James Higdon: Overruled, but this evidence is no longer relevant after Plaintiff’s dismissal of some causes of action.

Plaintiff’s Objections to the Declaration of Jose Cabada: Nos. 1-2: Overruled. Plaintiff authenticated these exhibits in her deposition testimony, to which the exhibits are attached. The doctor’s records are also not being used for the truth of their contents, but for the fact that Defendants received them. Nos. 3-5, 9: Overruled. Plaintiff authenticated these exhibits in her deposition testimony, to which the exhibits are attached. Nos. 6-8: Sustained. Defendants’ counsel cannot authenticate these exhibits for the truth of their contents.

Plaintiff’s Objections to the Declaration of Katherine Stevens: No. 1: Sustained as improper legal conclusion. No. 2: Sustained as to “and Plaintiff was informed of same” for lack of personal knowledge, and otherwise overruled. Nos. 3-4: Overruled. The use of the passive voice demonstrates a lack of personal knowledge.

Plaintiff’s Objections to Defendants’ Separate Statement: The Court does not rule on these objections, which are improperly presented and not authorized by section 437c. Plaintiff’s objections should be to evidence, and if a fact is disputed, that should be noted in her response to the Separate Statement.

“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.)

Defendants’ separate statement is 95 pages long and contains 417 “material” facts. Like the “inappropriate” separate statement in Nazir, the actual number of material facts in this separate statement is presumed to be lower, as many of the same facts are unnecessarily repeated. (See Nazir, supra, 178 Cal.App.4th at p. 252.) Of the unique facts, many 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 (Reeves).) “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).)

Plaintiff’s separate statement of additional facts is also defective. (See California Rules of Court, rule 3.1350(f)(3).) Many additional “facts” actually include multiple facts, and it is not clear what cited evidence supports each fact within that narrative. Additionally, Plaintiff improperly inserted evidentiary objections in her response to Defendants’ separate statement. That is not the proper place for objections or argument.

“[T]rial 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.” (Reeves, supra, 121 Cal.App.4th at p. 106.) 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.[1]

On August 9, 2020, Plaintiff began employment with Tutor Time as an hourly, non-exempt employee, first as a teacher’s assistant and later as a lead teacher. (Undisputed Material Facts “UMF” 1.) During her employment, Plaintiff worked with students aged two to five. (UMF 2.)

Under California law, in settings such as Tutor Time, there must be a ratio of one teacher visually observing and supervising no more than twelve children in attendance for the referenced age range (“Ratio”). (UMF 3.) If a teacher either failed to timely appear for work or was released from work by the company at a time when another teacher was unavailable to replace that teacher, it posed the risk that the company would not be in compliance with the Ratio. (UMF 5.) Failure to comply with the Ratio can have severe consequences, including suspension of the company’s licensure. (UMF 7.)

In connection with her onboarding, Plaintiff received a copy of the Company’s Employee Handbook. (UMF 8.) Plaintiff acknowledged receipt of the Employee Handbook and agreed to abide by it, and she acknowledged that failure to comply with the provisions of the Employee Handbook or any laws, regulations or licensing guidelines may result in corrective actions up to and including separation of employment. (UMF 14.)

Also in connection with her onboarding, Plaintiff was provided an Acknowledgement of Mandated Reporting Requirements for the State of California Rules on Child Abuse and Neglect. (UMF 38.) As set forth in the Mandatory Reporting Acknowledgement, as an employee of Defendant, Plaintiff was (i) obligated to report suspicions of child abuse, neglect, or abandonment to the county Child Welfare Services Agency, (ii) provided a reference card with the local county Child Welfare Service Agency contact information and (iii) informed of the Company’s policies on child abuse and neglect. (UMF 39.) At no time either during or in connection with her employment Tutor Time did Plaintiff ever make a report of any suspicion of child abuse, neglect, or abandonment to the county Child Welfare Services Agency, nor did she submit a written complaint to Tutor Time. (UMF 41-42.) While Plaintiff asserts that Ms. King told Plaintiff to bring issues to her, Plaintiff acknowledges that Ms. King never told Plaintiff to refrain from bringing a complaint or concern to the county Child Welfare Services Agency. (UMF 43.)

District Manager Katherine Stevens visited Tutor Time at least once a month. (UMF 45-46.) She spoke with all teachers onsite during her visits, and she never received any complaints—either from staff, children, or parents—nor perceived any issues regarding the sufficiency of food or water made available to children at any time. (UMF 47.)

On July 27, 2021, Tutor Time issued a Note to Plaintiff’s Employee File, indicating that it had spoken to Plaintiff and told her how many absences she had and how many she is allowed. (UMF 16.) On August 16, 2021, Tutor Time issued a Note to Plaintiff’s Employee File, indicating that it had spoken to Plaintiff and spoken to her about time off policies, scheduling requests and notifying policies. (UMF 17.) On October 1, 2021, Tutor Time issued a Note to Plaintiff’s Employee File, indicating that it had spoken to Plaintiff about attendance, her having excessive tardies, that Plaintiff had already had 12.5 occurrences (5.5 more than allowed), that she was late 21 minutes that day, and took an additional 40 minutes from her 10-minute break. (UMF 19.) On October 15 and 20, 2021 Tutor Time issued additional warnings about attendance issues. (UMF 20-21.) Plaintiff accrued several additional attendance occurrences in the days that followed. (UNM 22.) From July 1, 2021 through October 27, 2021 Plaintiff accrued a total of 18 occurrences of being late or absent. (UMF 18.)

Plaintiff suffers from Premenstrual Dysphoric Disorder (“PMDD”) and was involved in a car accident in August 2021. (UMF 59-60.) Plaintiff alleges that Ms. King would bring up Plaintiff’s mental state when discussing something that “wasn’t to [King’s] standard.” (UMF 61-62.) Other comments included commenting on Plaintiff being late again. (UMF 64-65.)

On August 6, 2021, Dr. Michael Assouri prepared a note stating the Plaintiff was to receive physiotherapy three days a week starting at 6:00 pm. (UMF 74.) On October 25, 2021, Dr. Boris Vaisman prepared a return-to-work order and wrote a note that Plaintiff needed to leave work at 4:45 p.m. for the next thirty days to attend physical therapy. (UMF 75.) The medical notes from Dr. Assouri and Dr. Vaisman do not include any lifting restrictions, reference a leave, or anything for Plaintiff other than attending physical therapy. (UMF 76.) Plaintiff did not provide any additional medical or doctor notes to Tutor Time. (UMF 77.) As an accommodation, Plaintiff was allowed to leave work early unless there was an issue with the Ratio. (UMF 79.) According to timesheet records, Plaintiff left work no later than 5:34 p.m. on Mondays, Wednesdays, or Fridays after August 6, 2021. (UMF 132.)

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 (Sangster).)

On April 12, 2023, Plaintiff dismissed King from the first, second, fourth, fifth, sixth, seventh, eighth, and fourteenth causes of action.

In her Opposition, “Plaintiff hereby dismisses her Ninth, Tenth, Eleventh, Twelfth and Thirteenth Causes of Action.” (Opposition at p. 17.)

Accordingly, as to the moving Defendants, this leaves only the first through eighth, fourteenth, and fifteenth causes of action against Tutor Time, and the third and fifteenth causes of action against King.

Of those remaining causes of action, Defendants move for summary adjudication of the first through eighth causes of action and punitive damages.

A. Defendants Have Proven a Legitimate and Non-Discriminatory Reason For the Alleged Discrimination and Retaliation (Fourth and Seventh Causes of Action).

The fourth cause of action alleges disability discrimination by denying Plaintiff leave, failing to accommodate her, and terminating her employment. (Complaint ¶ 73.) The seventh cause of action alleges retaliation in response to Plaintiff complaining of unlawful harassment, discrimination, and/or retaliation and requiring a reasonable accommodation for her disability. (Complaint ¶ 92.)

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.)

“An employer is not liable for discharging an employee with a disability unless the employee was able to perform the essential functions of his or her job with or without accommodation.” (Nadaf-Rahrov v. Neiman Marcus Group, Inc. (2008) 166 Cal.App.4th 952, 975; see Gov. Code, § 12940, subd. (a)(2).)

Defendants argue that Plaintiff was not qualified to perform the job, and she was terminated due to attendance issues. (Motion at pp. 18-19.) It is undisputed that Tutor Time had to maintain a certain Ratio of students and teachers, and arriving late or leaving early could put the company at risk of noncompliance. (UMF 3, 5, 7.) It is also undisputed that from July through October, Plaintiff accrued three times the annual allowance for tardiness or absences. (UMF 18.) Some of those occurrences predated Plaintiff’s August 2021 car accident for which she later needed physical therapy. (See UMF 59.)

Defendants have met their initial burden of showing legitimate, nondiscriminatory reasons for the adverse employment actions. (Motion at pp. 18, 21-22.) The burden now shifts to Plaintiff to show pretext and intentional retaliation.

Plaintiff argues that Defendants’ proffered reason is inconsistent because other teachers were late or left early, and they were not terminated. (Opposition at pp. 7-8.) Amanda and Nadia were late but were not terminated for being late. (Kamajian Depo. at pp. 26-27.) However, there is no evidence about the rate of their tardiness or absences, and no evidence about how they compared to Plaintiff’s 18 occurrences within four months. (See UMF 18.) Plaintiff admits that she “was out of ratio numerous times” and was tardy. (Perusset Decl. ¶¶ 4-5.) That two other employees were not terminated following an unknown number of occurrences is not “substantial responsive evidence” that creates a triable issue of fact. (See Sangster, supra, 68 Cal.App.4th at pp. 162-163.)

B. Defendants Have Shown That Plaintiff’s Alleged Whistleblowing Was Not a Contributing Factor to Her Termination (Second Cause of Action).

The second cause of action alleges that Defendants retaliated against her for complaining about health and safety violations concerning not giving children enough food. (Complaint ¶ 55.)

Labor Code “section 1102.6, and not McDonnell Douglas, supplies the applicable framework for litigating and adjudicating section 1102.5 whistleblower claims.” (Lawson v. PPG Architectural Finishes, Inc. (2022) 12 Cal.5th 703, 712 (Lawson).) After a plaintiff demonstrates by a preponderance of the evidence that his protected activity was a contributing factor in the adverse employment action, the employer must demonstrate by clear and convincing evidence that the adverse employment action would have occurred for legitimate, independent reasons even if the employee did not engage in the protected conduct. (Lab. Code, § 1102.6.) Under this standard, “plaintiffs may satisfy their burden of proving unlawful retaliation even when other, legitimate factors also contributed to the adverse action.” (Lawson, supra, 12 Cal.5th at pp. 713-714.)

Plaintiff was obligated to report suspicions of child abuse, neglect, or abandonment to the county Child Welfare Services Agency. (UMF 38-39.) Plaintiff never actually made a written report to Defendants or to the Agency. (UMF 42.) Director Dru told Plaintiff to always go to her for reporting abuse or neglect. (Perusset Depo. at pp. 31-32.) District Manager Stevens never saw children digging in the trash during her visits or through the live video stream. (Stevens Decl. ¶¶ 16, 18.) This evidence satisfies Defendants’ burden of showing that Plaintiff did not have any reasonable basis to believe that a statute or regulation had actually been violated. Additionally, for the reasons previously discussed, Defendants have demonstrated by clear and convincing evidence that Plaintiff’s employment would still have been terminated for attendance issues even if she were going to make a whistleblower report.

C. Defendants Have Proven That They Reasonably Accommodated Plaintiff and Engaged in the Interactive Process (Fifth and Sixth Causes of Action).

The fifth and sixth causes of action allege that Defendants did not accommodate Plaintiff’s disability, and they terminated her employment without engaging in the interactive process. (Complaint ¶¶ 78-79, 86-87.)

“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.) An employer is liable for failing to accommodate when it is the one responsible for the breakdown in the interactive process; an employer may prevail where the employer does everything in its power to engage but the employee does not engage in further discussions in good faith. (See Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 263.)

Plaintiff testified that (1) Tutor Time did not accommodate lifting restrictions; (2) Tutor Time would not allow her to leave early to make her therapy appointments on Mondays, Wednesdays, and Fridays at 6 p.m.; and (3) Tutor Time would not let her wear leggings. (Motion at p. 20.)

Regarding the lifting restrictions, the doctors’ notes provided to Defendants did not include lifting restrictions. (UMF 76-77.)

Regarding Plaintiff’s therapy appointments, Plaintiff left work no later than 5:34 p.m. on Mondays, Wednesdays, or Fridays after August 6, 2021. (UMF 132.) As an accommodation, Plaintiff was allowed to leave work early unless there was an issue with the Ratio. (UMF 131.) An employer is not required to make an accommodation that produces undue hardship. (Gov. Code, § 12940; see Gov. Code, § 12926, subd. (u) [defining undue hardship].) Defendants have shown that non-compliance with the legal Ratio would put the company’s license at risk. (UMF 3, 5, 7.)

Regarding Plaintiff’s request to wear leggings, this accommodation for her PMDD was never presented in a doctor’s note. (UMF 76.) “An employer does not have to accept an employee’s subjective belief that he is disabled and may rely on medical information in that respect.” (Arteaga v. Brink’s, Inc. (2008) 163 Cal.App.4th 327, 347.) Additionally, Plaintiff provides evidence that King contacted the accommodations team, who suggested that Plaintiff “just wear more comfortable pants that fit, wearing the bigger sized pants that will—that will accommodate her need.” (King Depo. at pp. 81-82.)

Defendants have met their initial burden of showing that they accommodated Plaintiff and engaged in an interactive process. Plaintiff cites no relevant evidence to the contrary. (See Opposition at pp. 13-14.)

D. Defendants Have Proven That There Was Not Severe or Pervasive Disability Harassment (Third Cause of Action).

The third cause of action alleges disability harassment. To establish a claim for harassment, a plaintiff must demonstrate that (1) he is a member of a protected group; (2) he was subjected to harassment because he belonged to this group; and (3) the alleged harassment was so severe that it created a hostile work environment. (See Aguilar v. Avis Rent A Car Sys., Inc. (1999) 21 Cal.4th 121.) Whether harassment exists based upon a hostile work environment is determined by considering all of the circumstances, which may include frequency, severity, and job interference. (Miller v. Dept. of Corrections (2005) 36 Cal.4th 446, 462.) Harassment consists of “conduct outside the scope of necessary job performance, conduct presumably engaged in for personal gratification, because of meanness or bigotry, or for other personal motives.” (Reno v. Baird (1998) 18 Cal.4th 640, 646 (Reno).) Harassment does not include commonly necessary personnel management actions, such as hiring, firing, job assignments, promotion, demotion, performance evaluations, excluding from meetings, and laying off. (Thompson v. City of Monrovia (2010) 186 Cal.App.4th 860, 879.) To establish a hostile work environment, “‘[a] plaintiff must prove that the defendant’s conduct would have interfered with a reasonable employee’s work performance and would have seriously affected the psychological well-being of a reasonable employee and that [he] was actually offended.’” (Hope v. California Youth Authority (2005) 134 Cal.App.4th 577, 588.)

Plaintiff testified that King would bring up Plaintiff’s mental state when discussing something that “wasn’t to [King’s] standard” (for instance, stating, “I think this is your mental thing going on right now”). (UMF 61.) If King did not like the way Plaintiff was doing something in the classroom, she would say, “Oh, you are on your period. Oh yeah. It does that stuff to you. I forgot.” (UMF 62.) King also commented on Plaintiff being late to work. (UMF 64-65.) Verbal harassment consists of, for example, “epithets, derogatory comments or slurs on a basis enumerated in the Act.” (Cal. Code Regs., tit. 2, § 11019, subd. (b)(2).) Except for one of these comments, King’s comments do not refer to Plaintiff’s disability and are not “conduct presumably engaged in for personal gratification, because of meanness or bigotry, or for other personal motives.” (Reno, supra, 18 Cal.4th at p. 646.)

Defendants have met their initial burden of showing that there was not severe or pervasive harassment based on Plaintiff’s disability.

Plaintiff argues that King told her “you’re not broken,” “this is your job,” and “you need to do it” multiple times within two months. (Opposition at p. 10; Kamajian Depo. at pp. 18-19.) This too is not severe or pervasive harassment that would have interfered with a reasonable employee’s work performance.

E. There Is No Basis For Wrongful Termination In Violation of Public Policy (First 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 ¶ 44.) Without a FEHA violation, there is no violation of public policy.

F. Because Defendants Prevail on the Underlying Claims, They Cannot Be Liable For Failure to Prevent (Eighth Cause of Action).

The eighth cause of action alleges failure to prevent harassment, discrimination, and retaliation.

Defendants argue that because there was no discrimination, harassment, or retaliation, it also cannot be liable for failing to prevent discrimination, harassment, or retaliation. (Motion at p. 22.) “[C]ourts have required a finding of actual discrimination or harassment under FEHA before a plaintiff may prevail under [Government Code] section 12940, subdivision (k).” (Carter v. California Dept. of Veterans Affairs (2006) 38 Cal.4th 914, 925, fn. 4.)

For the reasons discussed above, summary adjudication of the eighth cause of action is also granted. (See Glynn v. Superior Court (2019) 42 Cal.App.5th 47, 56.)

G. Defendants Have Shown That No Director, Officer, Or Managing Agent Acted with Malice, Oppression, or Fraud (Punitive Damages).

A plaintiff can recover punitive damages in tort cases where “the defendant has been guilty of oppression, fraud, or malice.” (Civ. Code § 3294, subd. (a).) “The mere allegation an intentional tort was committed is not sufficient to warrant an award of punitive damages. [Citation.] Not only must there be circumstances of oppression, fraud or malice, but facts must be alleged in the pleading to support such a claim. [Citation.]” (Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166, fn. omitted.) “[W]rongful termination, without more, will not sustain a finding of malice or oppression.” (Scott v. Phoenix Schools, Inc. (2009) 175 Cal.App.4th 702, 717.)

A corporate employer can be liable for punitive damages only when an officer, director, or managing agent of the corporation had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others, authorized or ratified the wrongful conduct, or was personally guilty of oppression, fraud, or malice. (Civ. Code, § 3294, subd. (b).)

“[T]he Legislature intended to limit corporate punitive damage liability to those employees who exercise substantial independent authority and judgment over decisions that ultimately determine corporate policy.” (White v. Ultramar, Inc. (1999) 21 Cal.4th 563, 573 (White), citation omitted.) Because the term “managing agent” is placed next to the terms “officer” and “director,” statutory interpretation principles lead to the conclusion “that a managing agent be more than a mere supervisory employee. The managing agent must be someone who exercises substantial discretionary authority over decisions that ultimately determine corporate policy. Thus, by selecting the term ‘managing agent,’ and placing it in the same category as ‘officer’ and ‘director,’ the Legislature intended to limit the class of employees whose exercise of discretion could result in a corporate employer’s liability for punitive damages.” (Ibid.) Accordingly, “the Legislature intended that principal liability for punitive damages not depend on employees’ managerial level, but on the extent to which they exercise substantial discretionary authority over decisions that ultimately determine corporate policy. Thus, supervisors who have broad discretionary powers and exercise substantial discretionary authority in the corporation could be managing agents. Conversely, supervisors who have no discretionary authority over decisions that ultimately determine corporate policy would not be considered managing agents even though they may have the ability to hire or fire other employees.” (Id. at pp. 576-577.) The discretionary authority over corporate policy “refer[s] to formal policies that affect a substantial portion of the company and that are the type likely to come to the attention of corporate leadership.” (Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 715 (Roby) [discussing White].)

King is the Center Director at Tutor Time, and she is the leader of one of many of the company’s daycare centers. (Stevens Decl. ¶¶ 6, 9.) She signs and approves timesheets, but she does not process payroll or have a role in the payment of wages. (Stevens Decl. ¶ 7.) King is not an officer and does not have the ability to determine corporate policy. (Stevens Decl. ¶¶ 10-12.) Defendants have met their burden of showing that King is not an officer, director, or managing agent.

Plaintiff argues that King’s role as a director gave her large control over the school and was responsible for implementing all procedures. (Opposition at p. 19.) Stevens testified that directors like King are “responsible for keeping up on our licensing policies and—our policies and procedures of the company. That’s communicated to them. . . . They’re responsible for communicating and upholding the policies if they do change. They’re not responsible for writing them.” (Stevens Depo. at p. 9.) Thus, King was not determining corporate policy; she was responsible for implementing the corporate policies at her location.

Plaintiff argues that District Manager Katherine Stevens is also a managing agent who acted with malice and oppression. (Opposition at pp. 19-20.) Stevens is not a defendant, not mentioned in the Complaint, and is only argued to have “ignored Plaintiff’s complaint of inadequate food.” (Opposition at p. 20.) This does not prove Stevens’s role, conduct, or connection with Plaintiff’s termination.

Pursuant to the request of Plaintiff, the Complaint’s ninth through thirteenth causes of action are DISMISSED.

The motion for summary adjudication is GRANTED. The first through eighth causes of action are adjudicated in favor of Tutor Time. The third cause of action is adjudicated in favor of King. The issue of punitive damages is adjudicated in favor of Tutor Time and King.

The parties are urged to consider whether the December 4, 2023 jury trial is the most efficient use of resources to resolve the remaining fourteenth cause of action (failure to deliver personnel file) against Tutor Time, and the fifteenth cause of action (failure to indemnify/reimburse necessary expenditures) against Tutor Time and King.

On July 5, 2023, Plaintiff named Learning Care Group Inc. as Doe 1. More than thirty days have passed, and no proof of service of summons and complaint has been filed. (See California Rules of Court, rule 3.110(b).) Therefore, on its own motion, an Order to Show Cause Re: Failure to Serve Defendant Learning Care Group Inc. is scheduled for 11/20/2023 at 9:00 AM in Department 48 at Stanley Mosk Courthouse.

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

[1] The parties’ prolix statements of facts remind the Court that “in his Lettres Provinciales, the French philosopher and mathematician Blaise Pascal famously wrote: ‘I would have written a shorter letter, but I did not have the time.’ This sentiment, which also found expression by John Locke, Benjamin Franklin and Woodrow Wilson, among others, reflects both the value and the challenges of brevity.” https://www.npr.org/sections/13.7/2014/02/03/270680304/this-could-have-been-shorter The parties here did not meet the challenges of brevity.