Judge Timothy B. Taylor, Case 37-2019-00059318-CU-WT-CTL 2023-08-25 Tentative Ruling

Judge: Timothy B. Taylor, Case: 37-2019-00059318-CU-WT-CTL, Date: 2023-08-25 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - August 24, 2023

08/25/2023 01:30:00 PM C-72 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Timothy Taylor

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Civil - Unlimited Wrongful Termination Summary Judgment / Summary Adjudication (Civil) 37-2019-00059318-CU-WT-CTL AL-GARAAWI VS. THE VONS COMPANIES INC [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion for Summary Judgment and/or Adjudication, 06/08/2023

Tentative Ruling on Second Motion for Summary Adjudication Al-Garaawi v. The Vons Companies, Case No. 2019-59318 August 25, 2023, 1:30 p.m., Dept. 72 1. Overview and Procedural Posture.

This case started as a national origin discrimination/retaliation case arising from plaintiff's employment in the meat department at several Vons markets in San Diego County between 2009 and 2019. The eight count complaint was filed in November of 2019. Defendant answered in February, 2020. ROA 10.

The case was delayed somewhat by the closure suffered by the court at the outset of the COVID-19 pandemic. ROA 11. At the continued CMC over three years ago, the court set the case for trial in September, 2021. ROA 20-25. The trial date had to be moved several times. ROA 68-72, 144-145, 219-223. The case is set for trial next month.

There have been discovery problems. Two motions to compel were decided in August 2021 (ROA 50, 73), two were decided in March 2022 (ROA 140), and one was decided in April 2022 (ROA 156). The court was also called upon to approve a Belaire-West Notice. ROA 168-169, 171.

Defendant moved for summary judgment or, in the alternative summary adjudication of twenty (20) issues. ROA 121-126. The motion was originally noticed for April 29, 2022. ROA 99. However, the parties stipulated to continue the hearing to October 28, 2022. ROA 142-143, 148. Plaintiff filed opposition. Defendant replied. ROA 177-181. After this full briefing and a hearing, the court granted the motion in part and denied it in part in a detailed ruling. ROA 185.

A few weeks after the MSA ruling, plaintiff approached the court ex parte seeking an emergency hearing on his motion for leave to amend. ROA 186-190. Defendant objected. ROA 201. Perceiving no emergency, the court vacated the trial date and ordered the motion heard on regular notice. ROA 192-200. Following full briefing and a hearing on March 24, 2023, the court allowed the FAC, and it was filed. ROA 221, 224. Two months later, the FAC was superseded by the SAC. ROA 226, 228. Vons has answered it. ROA 236.

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2966597 65 CASE NUMBER: CASE TITLE: AL-GARAAWI VS. THE VONS COMPANIES INC [IMAGED] 37-2019-00059318-CU-WT-CTL Presently, defendant seeks summary adjudication of count 2 of the SAC, for failure to prevent race/national origin harassment in violation of Government Code section 12940(k). ROA 229-235.

Plaintiff filed opposition. ROA 237-239. Vons replied. ROA 240-244. The court has reviewed the papers, and no further submissions are permitted in connection with this motion.

2. Applicable Standards.

A. The court hereby incorporates part 2A of the minutes from October 28, 2022 (ROA 185).

B. Under the FEHA, it is unlawful for an employer 'to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring.' Gov. Code § 12940(k).

3. Evidentiary Objections.

Vons has objected to plaintiff's evidence. ROA 241. The court has ruled separately on the objections.

ROA 246.

4. Discussion and Ruling.

The motion for summary adjudication is denied.

A. The motion for summary adjudication based on the argument that Vons took all reasonable steps to prevent harassment is denied.

The court has already found that there is a triable issue of material fact as to whether Vons retaliated against plaintiff for complaining of harassing conduct. ROA 185. Accordingly, Vons cannot establish as a matter of law that it took all reasonable steps to prevent such harassment. See California Fair Employment & Housing Com. v. Gemini Aluminum Corp. (2004) 122 Cal.App.4th 1004, 1024 ('An employer's claim that its procedures are effective in addressing discrimination is negated by proof of retaliation.'). Moreover, even without this earlier finding, Vons' evidence concerning its harassment policies, while relevant, does not show that the failure to prevent harassment claim is without merit. See Cal. Code Regs, tit. 2, § 11023(a)(1) ('A determination as to whether an employer has complied with Government Code section 12940(k) includes an individualized assessment, depending upon numerous factors sometimes unique to the particular employer including, but not limited to, its workforce size, budget, and nature of its business, as well as upon the facts of a particular case.').

B. The motion for summary adjudication based on the lack of causation is denied.

Vons argues that causation is lacking because it had no duty to take any action to prevent harassment until it knew about plaintiff's race/national origin harassment complaints in August 2018. However, section 12940(k) imposes no such 'knowledge' requirement. Nor does California law. Plaintiff's reliance on M.F. v. Pacific Pearl Hotel Management LLC (2017) 16 Cal.App.5th 693 and Vierria v. California Highway Patrol (E.D. Cal. 2009) 644 F.Supp.2d 1219 is misplaced as the latter is a nonbinding federal district court case and the former involved a claim for failure to prevent harassment by a nonemployee under Government Code section 12940(j) – not section 12940(k). Compare CACI 2527 with CACI 2528.

In any event, '[c]ausation is ordinarily a question of fact which cannot be resolved by summary judgment.' Romero v. Los Angeles Rams (2023) 91 Cal.App.5th 562, 567-68. Here, there are triable issues of material fact regarding whether Vons knew about the harassment before August 2018 and whether the alleged failure to take all reasonable steps to prevent the harassment was a substantial factor in causing plaintiff's harm. The evidence that creates these triable issues includes: (i) the declaration of Crystal Maving; (ii) the deposition of Alaa Al-Garaawi; (iii) Def.'s Exs. 8, 10, and 11; and (iv) Pltf.'s Ex. 2, 4, 11, 12, and 30.

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2966597 65 CASE NUMBER: CASE TITLE: AL-GARAAWI VS. THE VONS COMPANIES INC [IMAGED] 37-2019-00059318-CU-WT-CTL C. The TRC is confirmed for Sept. 15, as is the jury trial for Sept. 29.

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2966597 65