Judge: Timothy B. Taylor, Case: 37-2021-00024255-CU-OE-CTL, Date: 2023-08-04 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - August 03, 2023

08/04/2023  01:30:00 PM  C-72 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Timothy Taylor

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Civil - Unlimited  Other employment Summary Judgment / Summary Adjudication (Civil) 37-2021-00024255-CU-OE-CTL SALAZAR VS JCPENNEY PROPERTIES INC [E-FILE] CAUSAL DOCUMENT/DATE FILED: Motion for Summary Judgment and/or Adjudication, 01/26/2023

Tentative Rulings on Defendant's Motions for Summary Adjudication

Salazar v. JC Penney, Case No. 2021-24255 August 4, 2023, 1:30 p.m., Dept. 72 1. Overview and Procedural Posture.

This is an employment case arising out of plaintiff's work as a 'merchandising executive associate' at a JC Penney store starting in April of 2018. For further background, the court hereby incorporates part 1 of the minutes from February 17, 2023. ROA 191. On that day, the court denied defendant's motion for summary adjudication.

Presently before the court are two more motions for summary adjudication.* ROA 231, 233-234. The first motion seeks to dispose of the PAGA claim on grounds that plaintiff failed to exhaust administrative remedies. ROA 168-173. The second motion seeks summary adjudication of plaintiff's FEHA claims.

ROA 142-148. The motions were initially set for hearing in April 2023, but were continued over defendant's objection pursuant to Code of Civil Procedure section 437c(h). ROA 134, 215-217, 222-228, 230, 232.

Plaintiff has now filed opposition. ROA 237-245. Defendant replied. ROA 246-251. The court has reviewed the papers, and no further submissions are authorized with regard to these motions.

Trial is scheduled for February 2024. ROA 189.

2. Applicable Standards.

A. The court incorporates part 2 of the minutes from February 17, 2023 (ROA 191).

B. The court incorporates part 2 of the minutes from January 13, 2023 (ROA 164).

C. The law of preclusion helps to ensure that a dispute resolved in one case is not relitigated in a later case. Samara v. Matar (2018) 5 Cal.5th 322, 326. Collateral estoppel, or issue preclusion, prevents relitigation of previously decided issues rather than causes of action as a whole. Id. It applies only '(1) after final adjudication (2) of an identical issue (3) actually litigated and necessarily decided in the first Calendar No.: Event ID:  TENTATIVE RULINGS

2960438  51 CASE NUMBER: CASE TITLE:  SALAZAR VS JCPENNEY PROPERTIES INC [E-FILE]  37-2021-00024255-CU-OE-CTL suit and (4) asserted against one who was a party in the first suit or one in privity with that party.' DKN Holdings LLC v. Faerber (2015) 61 Cal.4th 813, 825.

D. The FEHA prohibits an employer from discriminating against an employee based on the employee's sex. 'To state a prima facie case for discrimination in violation of the FEHA, a plaintiff must establish that (1) she was a member of a protected class, (2) she was performing competently in the position she held, (3) she suffered an adverse employment action, and (4) some other circumstance suggests discriminatory motive.' Galvan v. Dameron Hospital Assn. (2019) 37 Cal.App.5th 549, 558.

E. The FEHA also makes it unlawful to retaliate against an employee who opposes practices prohibited under FEHA. Gov. Code§ 12940(h). 'To establish a prima facie case of retaliation, the plaintiff must show he or she engaged in a 'protected activity,' the employer subjected the employee to an adverse employment action, and a causal link existed between the protected activity and the employer's action.' McRae v. Department of Corrections & Rehabilitation (2006) 142 Cal.App.4th 377, 386.

F. The California Supreme Court has adopted the three-stage burden-shifting test established by the United States Supreme Court in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 for trying claims of discrimination and retaliation under FEHA. Husman v. Toyota Motor Credit Corp. (2017) 12 Cal.App.5th 1168, 1181, 1193. However, the McDonnell-Douglas framework is modified in the summary judgment/adjudication context. Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 861. The employer, as the moving party, has the initial burden to present admissible evidence showing either that one or more elements of plaintiff's prima facie case is lacking or that the adverse employment action was based upon legitimate, nondiscriminatory/non-retaliatory factors. Hicks v. KNTV Television, Inc. (2008) 160 Cal.App.4th 994, 1003. If the employer satisfies its initial burden, the plaintiff then has the burden to offer 'substantial evidence' that the employer's stated non-discriminatory/non-retaliatory reason for the adverse action was untrue or pretextual, or evidence the employer acted with discriminatory/retaliatory animus, or a combination of the two, such that a reasonable trier of fact could conclude the employer engaged in intentional discrimination/retaliation. Hersant v. Department of Social Services (1997) 57 CalApp.4th 997, 1004-05.

G. To establish a prima facie case of a hostile work environment, the plaintiff must show that (1) she is a member of a protected class; (2) she was subjected to unwelcome harassment; (3) the harassment was based on her protected status; (4) the harassment unreasonably interfered with her work performance by creating an intimidating, hostile, or offensive work environment; and (5) defendants are liable for the harassment. Oriz v. Dameron Hospital Assn. (2019) 37 Cal.App.5th 568, 581.

'[H]arassment creates a hostile, offensive, oppressive, or intimidating work environment and deprives victims of their statutory right to work in a place free of discrimination when the harassing conduct sufficiently offends, humiliates, distresses, or intrudes upon its victim, so as to disrupt the victim's emotional tranquility in the workplace, affect the victim's ability to perform the job as usual, or otherwise interfere with and undermine the victim's personal sense of well-being.' Gov. Code § 12923(a).

H. 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. Judicial Notice.

Defendant seeks judicial notice of certain facts from the LWDA website. ROA 171. Courts of appeal review a trial court's ruling regarding a request for judicial notice pursuant to the abuse of discretion standard of review. (In re Social Services Payment Cases (2008) 166 Cal.App.4th 1249, 1271.) Evidence Code section 453 provides that a trial court must take judicial notice of any matter specified in Evidence Code section 452, upon a party's proper request. Inasmuch as there is no objection, judicial notice is taken as requested. Evid. Code § 452(c), (h).

4. Discussion and Rulings.

Calendar No.: Event ID:  TENTATIVE RULINGS

2960438  51 CASE NUMBER: CASE TITLE:  SALAZAR VS JCPENNEY PROPERTIES INC [E-FILE]  37-2021-00024255-CU-OE-CTL A. The motion for summary adjudication of the PAGA claim is denied.

The court is not persuaded that plaintiff's failure to correctly identify defendant in the PAGA notice entitles defendant to judgment as a matter of law. See Clark v. Superior Court (2021) 62 Cal.App.5th 289, 305-309. While Clark concerned a DFEH complaint, its reasoning and rejection of 'form over substance' apply with equal force here. See Fountain Valley Chateau Blanc Homeowner's Assn. v. Department of Veterans Affairs (1998) 67 Cal.App.4th 743, 758 ('The law always favors substance over form[.]'). It can hardly be disputed that any administrative investigation into plaintiff's PAGA notice would have revealed defendant, rather than J.C. Penny Corp., to be the intended respondent. See Flores v. Kmart Corp. (2012) 202 Cal.App.4th 1316, 1327 ('Once a reorganization plan is confirmed, all of the debtor's debts that arose before the confirmation date are discharged.'). Moreover, defendant has not cited any authority in which a case has been dismissed on exhaustion grounds due to the failure to identify a bankrupt entity's successor.** B. The motion for summary adjudication of the FEHA claims is granted in part and denied in part.

Issue 1 – Collateral Estoppel The motion for summary adjudication of issue 1 is denied. As the court explained in connection with defendant's first motion for summary adjudication, a contention that an affirmative defense is meritorious is not an issue for which summary adjudication can be granted pursuant to Code of Civil Procedure section 437c(f)(1).

Issue 2 – Sex Discrimination The motion for summary adjudication of issue 2 is denied.

In its moving papers, defendant contends plaintiff cannot establish a prima facie case of discrimination based on sex. Defendant does not suggest that it had legitimate, nondiscriminatory reasons for its actions and the court will not consider such arguments made for the first time on reply. See Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537 ('The general rule of motion practice...is that new evidence is not permitted with reply papers.').

'The employee's burden of proving a prima facie case is not onerous, and very little evidence is required at this step.' Zamora v. Security Industry Specialists, Inc. (2021) 71 Cal.App.5th 1, 38. In this case, liberally construing plaintiff's evidence and bearing in mind that discrimination claims are 'rarely suited for summary adjudication' (Mackey v. Board of Trustees of California State University (2019) 31 Cal.App.5th 640, 673), the court finds there are triable issues of material fact regarding (i) whether plaintiff's failure to receive a promotion constituted an adverse action and (ii) whether the promotion decision was motivated by discriminatory animus based on plaintiff's sex given that the position was given to male employee with less experience. See Mamou v. Trendwest Resorts, Inc. (2008) 165 Cal.App.4th 686, 714 ('[I]t is enough for the plaintiff to present 'some other circumstance' that 'suggests' a proscribed motive.'); see also Doe v. Salesian Society (2008) 159 Cal.App.4th 474, 478 ('All doubts as to whether any material, triable issues of fact exist are to be resolved in favor of the party opposing summary judgment.'). The evidence that creates these triable issues includes: (i) the declaration of Brian Henderson; and (ii) the deposition of Estephania Salazar.

Issues 3 and 4 – Race and Age Discrimination The motions for summary adjudication of issues 3 and 4 are denied.

Plaintiff has not pled a claim for age discrimination. 'Evidence offered on an unpleaded claim, theory, or defense is irrelevant because it is outside the scope of the pleadings.' California Bank & Trust v. Lawlor (2013) 222 Cal.App.4th 625, 637 fn. 3. Moreover, while plaintiff states that she is 'not pursuing' a claim for race discrimination (FEHA Oppo. at 1:14-15), '[a] motion for summary adjudication shall be granted Calendar No.: Event ID:  TENTATIVE RULINGS

2960438  51 CASE NUMBER: CASE TITLE:  SALAZAR VS JCPENNEY PROPERTIES INC [E-FILE]  37-2021-00024255-CU-OE-CTL only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.' Code Civ. Proc. § 437c(f)(1). As noted above, triable issues of material fact exist as to plaintiff's sex discrimination claim. Thus, the first cause of action for 'sex/race discrimination' cannot be completely eliminated.

Plaintiff will have an opportunity to identify the legal issues which are in dispute in the Joint Trial Readiness Report.

Issue 5 – Harassment The motion for summary adjudication of issue 5 is granted.

The undisputed evidence shows that defendant cannot be held responsible for conduct that occurred while J.C. Penny Corp. was plaintiff's employer. (See Ex. I, Asset Purchase Agreement, at pp. 13-14, 17-18.) '[I]n the bankruptcy context, the policy in favor of discharge of debt in bankruptcy could be inhibited by a holding that assets of the bankrupt would be infected with the bankrupt's inchoate and unknown tort liability, since a reluctance on the part of purchasers would be certain to exist unless the value of the bankrupt's assets were further discounted.' Stewart v. Telex Communications, Inc. (1991) 1 Cal.App.4th 190, 200.

With respect to conduct that occurred after defendant became plaintiff's employer, 'an employee claiming harassment based upon a hostile work environment must demonstrate that the conduct complained of was severe enough or sufficiently pervasive to alter the conditions of employment and create a work environment that qualifies as hostile or abusive to employees because of their sex.' Miller v. Department of Corrections (2005) 36 Cal.4th 446, 462. Here, plaintiff has failed to raise a triable issue of material fact showing that she was subjected to harassment after defendant assumed control or that any such post-turnover conduct was sufficiently 'severe or pervasive.' Issue 6 – Retaliation The motion for summary adjudication of issue 6 is granted.

Again, the undisputed evidence shows that defendant cannot be held responsible for conduct that occurred while J.C. Penny Corp. was plaintiff's employer. (See Ex. I, Asset Purchase Agreement, at pp.

13-14, 17-18.) As for conduct that occurred after defendant became plaintiff's employer, plaintiff has failed to raise a triable issue of material fact showing that she engaged in any protected conduct. To the extent she claims that informing defendant about cutting her hours resulted in retaliation, that theory was not alleged in the FAC. See Christina C. v. County of Orange (2013) 220 Cal.App.4th 1371, 1383 ('[A] plaintiff may not oppose summary judgment with a new unpleaded legal theory.').

Issue 7 – Failure to Prevent Harassment, Discrimination, or Retaliation The motion for summary adjudication of issue 7 is denied. As discussed above, triable issues of material fact exist as to plaintiff's sex discrimination claim. Moreover, defendant has failed to meet its initial burden of showing that it took all reasonable steps to prevent the discrimination. Defendant's evidence regarding its discrimination policies, while relevant, does not show that the failure to prevent discrimination claim has no 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.'); see also Crouse v. Brobeck, Phleger & Harrison (1998) 67 Cal.App.4th 1509, 1534 ('[I]f the showing by the defendant does not support judgment in his favor, the burden does not shift to the plaintiff and the motion must be denied without regard to the plaintiff's showing.').

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2960438  51 CASE NUMBER: CASE TITLE:  SALAZAR VS JCPENNEY PROPERTIES INC [E-FILE]  37-2021-00024255-CU-OE-CTL C. In issuing these rulings, the court has not considered the reply separate statements filed by defendant. ROA 247, 249. There is no authority for the filing of such a document. Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 249. Nor has the court considered the recent ruling from Judge Meyer cited by plaintiff in her opposition to the PAGA claim MSA. See Santa Ana Hospital Medical Center v. Belshe (1997) 56 Cal.App.4th 819, 831 ('[A] written trial court ruling has no precedential value.').

____________________________ *There is nothing in the Code of Civil Procedure that prohibits filing multiple motions for summary adjudication. However, in the court's view, defendant's approach appears to be an intentional end-around of the page limitations set forth in CRC 3.1113(d). It also evinces some indifference to the realities of trying to run a Civil IC department with 1100-1200 cases assigned at any given time.

**The court's own research reveals that some federal courts apply an 'identity of interest' exception in the context of EEOC exhaustion. The exception allows a person not named in the EEOC complaint to be charged upon consideration of the following factors: (1) whether the role of the unnamed party could through reasonable effort by the complainant be ascertained at the time of the filing of the EEOC complaint; (2) whether, under the circumstances, the interests of a named party are so similar as the unnamed party's that for the purpose of obtaining voluntary conciliation and compliance it would be unnecessary to include the unnamed party in the EEOC proceedings; (3) whether its absence from the EEOC proceedings resulted in actual prejudice to the interests of the unnamed party; and (4) whether the unnamed party has in some way represented to the complainant that its relationship with the complainant is to be through the named party. Johnson v. Palma (2d Cir. 1991) 931 F.2d 203, 209-10.

Although neither the Ninth Circuit nor any California appellate court has explicitly adopted this test, a weighing of the factors arguably favors application of the exception here.

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