Judge: Timothy B. Taylor, Case: 37-2021-00030965-CU-WT-CTL, Date: 2023-10-13 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - October 12, 2023

10/13/2023  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) 37-2021-00030965-CU-WT-CTL SIMS VS UNIVERSITY OF SAN DIEGO [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion for Summary Judgment and/or Adjudication, 07/13/2022

Tentative Ruling on Motion for Summary Judgment/Adjudication on the FAC Sims v. USD, Case No. 2021-30965 Oct. 13, 2023, 1:30 p.m., Dept. 72 1. Overview and Procedural Posture.

This employment case was filed in July of 2021 and assigned to Judge Meyer. The defendants answered separately through the same counsel. ROA 10, 18. Judge Meyer made several discovery rulings, and denied plaintiff's motion for leave to file a second amended complaint.* ROA 63, 85, 92.

Judge Meyer then retired after a long and distinguished career. The case was reassigned to Judge Freestone, but he recused. ROA 96, 107. Only then was the case re-assigned to Dept. 72. ROA 113.

At the time of the re-assignment to Dept. 72, there was a fully briefed motion for summary judgment/adjudication attacking the FAC: Moving papers: ROA 33-42 Opposition papers: ROA 98-101 Reply papers: ROA 104-106 That motion is now before the court. ROA 117. The basic thrust of the motion is that plaintiff was harassed or wrongfully terminated; rather, he was laid off with 176 other employees when the USD campus was shut down during the COVID-19 pandemic.

The reassignments and other delays caused at least two trial dates to be vacated, so the case is also set for a CMC. ROA 120-121.

2. Applicable Standards.

A. A three-step analysis is employed in ruling on motions for summary judgment. Kline v. Turner (2001) 87 Cal.App.4th 1369, 1373. First, the court identifies the issues framed by the pleadings. Pierson v. Helmerich & Payne Internat. Drilling Co. (2016) 4 Cal.App.5th 608, 617. Second, the court determines whether the moving party has established facts justifying judgment in its favor. Id. Third, if the moving party has carried its initial burden, the court decides whether the opposing party has demonstrated the Calendar No.: Event ID:  TENTATIVE RULINGS

2989760  64 CASE NUMBER: CASE TITLE:  SIMS VS UNIVERSITY OF SAN DIEGO [IMAGED]  37-2021-00030965-CU-WT-CTL existence of a triable issue of material fact. Id. at 618. To satisfy this burden, the opposing party must present admissible evidence and may not rely upon the allegations or denials of its pleading. Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849. Summary judgment may only be granted when a moving party establishes the right to the entry of judgment as a matter of law. Code Civ. Proc. § 437c(c).

B. To establish a prima facie case of a hostile work environment, the plaintiff must show that (1) he is a member of a protected class; (2) he was subjected to unwelcome harassment; (3) the harassment was based on his protected status; (4) the harassment unreasonably interfered with his 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).

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

D. Labor Code section 1102.5 protects whistleblowers in the workplace. The governing framework for the presentation and evaluation of such claims is set forth in Labor Code section 1102.6. Lawson v. PPG Architectural Finishes, Inc. (2022) 12 Cal.5th 703, 718. 'First, it places the burden on the plaintiff to establish, by a preponderance of the evidence, that retaliation for an employee's protected activities was a contributing factor in a contested employment action.' Id. 'Once the plaintiff has made the required showing, the burden shifts to the employer to demonstrate, by clear and convincing evidence, that it would have taken the action in question for legitimate, independent reasons even had the plaintiff not engaged in protected activity.' Id. 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 retaliation under the 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, nonretaliatory 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 nonretaliatory reason for the adverse action was untrue or pretextual, or evidence the employer acted with retaliatory animus, or a combination of the two, such that a reasonable trier of fact could conclude the employer engaged in retaliation. Hersant v. Department of Social Services (1997) 57 CalApp.4th 997, 1004-05.

3. Evidentiary Objections.

Defendants object to plaintiff's evidence. ROA 105. Although a proposed order was not submitted – as expressly required by as expressly required by CRC 3.1354(c) – the court has ruled separately on the objections. ROA 123.

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2989760  64 CASE NUMBER: CASE TITLE:  SIMS VS UNIVERSITY OF SAN DIEGO [IMAGED]  37-2021-00030965-CU-WT-CTL 4. Discussion and Rulings.

The motion for summary judgment or, in the alternative, summary adjudication is granted in part and denied in part.

A. As an initial matter, the court notes that plaintiff's opposition separate statement does not comply with the formatting requirements set forth in CRC 3.1350(f). This made it difficult for the court to utilize the opposition separate statement. See Taylor v. Financial Casualty & Surety, Inc. (2021) 67 Cal.App.5th 966, 970 fn. 2 ('A separate statement in the summary judgment process is intended to facilitate the trial judge's decision.'). The court, however, chooses to exercise its discretion and will consider the merits of the opposition. See Parkview Villas Assn., Inc. v. State Farm Fire & Casualty Co. (2005) 133 Cal.App.4th 1197, 1211-12.

B. The motion for summary adjudication of issue 1 is denied.

'[A]n 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 [protected status].' Miller v. Department of Corrections (2005) 36 Cal.4th 446, 462. To be actionable, the harassment must satisfy an objective and a subjective standard. Hope v. California Youth Authority (2005) 134 Cal.App.4th 577, 588. 'The objective severity of harassment must be judged from the perspective of a reasonable person in plaintiff's position.' Beyda v. City of Los Angeles (1998) 65 Cal.App.4th 511, 519. 'And, subjectively, an employee must perceive the work environment to be hostile.' Hope, 134 Cal.App.4th at 588.

In this case, there are triable issues of material fact regarding (1) whether Holmes' conduct of 'smacking' his bottom, suggesting a visit to plaintiff's house, and making a sexually explicit comment were based on sex; (2) whether such behavior was sufficiently severe or pervasive to interfere with a reasonable employee's work performance; and (3) whether plaintiff himself perceived the work environment to be hostile. 'Harassment cases are rarely appropriate for disposition on summary judgment.' Gov. Code § 12923(e). The evidence that creates these triable issues includes: (i) the deposition of Raymond Sims; (ii) the declaration of Michael Holmes; (iii) Exs. 23 and 24; and (iv) Ex. A.

C. The motions for summary adjudication of issues 2 and 3 are denied. The second cause of action alleges that USD failed to prevent harassment and retaliation. As discussed above, triable issues of material fact exist as to plaintiff's sexual harassment claim. Thus, plaintiff's derivative claim for failure to prevent harassment likewise survives summary adjudication. See M.F. v. Pacific Pearl Hotel Management LLC (2017) 16 Cal.App.5th 693, 701. Moreover, because the failure to prevent harassment claim survives summary adjudication, the court cannot grant summarily adjudicate the failure to prevent retaliation claim as it would not completely dispose of the second cause of action. See Code Civ. Proc. § 437c(f)(1) ('A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.').

D. The motion for summary adjudication of issue 6 is granted.

Defendants have submitted evidence showing that USD reduced plaintiff's hours because of winter break and to honor his request for medical leave. (UMF 12, 15.) Defendants have also submitted evidence showing that USD terminated plaintiff's employment – as well as 176 other employees – due to the COVID-19 pandemic. (UMF 19.) This evidence is sufficient to shift the burden to plaintiff. Code Civ.

Proc. § 437c(p)(2).

In opposition, plaintiff argues that USD took these actions in retaliation for reporting Holmes' sexual harassment. Plaintiff, however, has not submitted any admissible evidence supporting his position.

There is no evidence suggesting that the reduction in plaintiff's part-time shifts was because of anything plaintiff may have said or done. See Part 3, supra. Nor is there evidence disputing the reason that Calendar No.: Event ID:  TENTATIVE RULINGS

2989760  64 CASE NUMBER: CASE TITLE:  SIMS VS UNIVERSITY OF SAN DIEGO [IMAGED]  37-2021-00030965-CU-WT-CTL plaintiff – a dining services employee – was included in the massive layoff March 2020. 'A party cannot defeat summary judgment by the expedient of averring he or she has evidence to support a cause of action; instead, such evidence must be presented in opposition to summary judgment.' Ulrich v. State Farm Fire & Cas. Co. (2003) 109 Cal.App.4th 598, 616.

Accordingly, plaintiff has failed to raise a triable issue of material fact that any alleged protected activities were a contributing factor for the change to his schedule and the eventual termination of his employment. See Lab. Code § 1102.6.

E. The motion for summary adjudication of issue 9 is granted.

Where, as here, the motion for summary judgment relies in whole or in part on a showing of nonretaliatory reasons for the discharge, the employer satisfies its burden as moving party if it presents evidence of such nonretaliatory reasons that would 'permit trier of fact to find, more likely than not, that they were the basis for the [adverse action].' Kelly v. Stamps.com Inc. (2005) 135 Cal.App.4th 1088, 1097-98. In this case, as discussed above, USD has submitted evidence showing legitimate, nonretaliatory reasons for reducing plaintiff's shifts and terminating his employment. The burden shifts to plaintiff to produce specific and substantial evidence that the stated reasons for the suspension were untrue or pretextual, or that defendant acted with retaliatory animus, such that a trier for fact could conclude USD engaged in retaliation. He has not done so. See Part 4D, supra. Thus, plaintiff has failed to raise a triable issue of material fact that USD engaged in unlawful retaliation under the FEHA.

F. The motions for summary adjudication of issues 4 and 5 are granted. It is undisputed that plaintiff was laid off. (UMF 19.) Thus, to the extent the third cause of action alleges a claim for constructive discharge, it fails. See CACI 2431, 2510; see also Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1244-45. Moreover, because plaintiff's retaliation claims fail, so too does any claim for wrongful termination. See Husman, supra, 12 Cal.App.5th at 1194 fn. 15.

G. The motions for summary adjudication of issues 7 and 8 are denied as moot in light of the court's rulings on issues 6 and 9, respectively.

H. The motion for summary adjudication of issue 10 is denied. Defendants concede that plaintiff's negligence claim is derivative of his FEHA claims. Thus, because the harassment claims survive summary adjudication, so too does the negligence claim.

I. The motion for summary adjudication of issue 11 is granted. A corporate employer may be liable for punitive damages when an officer, director, or managing agent of the corporation authorizes, ratifies, or personally commits acts of oppression, fraud, or malice. Civ. Code § 3294(b). A managing agent is someone who exercises 'substantial discretionary authority over significant aspects of a corporation's business. White v. Ultramar, Inc. (1999) 21 Cal.4th 563, 577. The key inquiry concerns the employee's authority to 'change or establish corporate policy.' CRST, Inc. v. Superior Court (2017) 11 Cal.App.5th 1255, 1273. In this case, the undisputed evidence shows that none of the employees involved in any of the alleged incidents were officers, directors, or managing agents of USD. (UMF 175-180.) J. In issuing this ruling, the court has not considered the numerous unpublished Court of Appeal opinions cited in the moving papers. (See Ps&As at 5:24 fn. 5, 24:19-20.) This is improper. CRC 8.1115(a). Defense counsel is admonished to refrain from engaging in similar conduct in the future.

K. Plaintiff's request for monetary sanctions is denied. No authority is cited in support of the sanctions request, and even if there were such a statutory foundation, there has been no sanctionable conduct here.

5. CMC.

The parties should attend the hearing prepared to assist the court in re-setting the case for trial.

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2989760  64 CASE NUMBER: CASE TITLE:  SIMS VS UNIVERSITY OF SAN DIEGO [IMAGED]  37-2021-00030965-CU-WT-CTL _____________________ *Despite this ruling, a second amended complaint was filed (twice). ROA 54-55. Both versions are ordered stricken.

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