EP - SUMMONS ISSUED - CVS PHARMACY INC August 28, 2024 (2024)

Case

SIMPSON, NADIA BREANNA vs. NOLIN, JOSHUA DALTON

Aug 26, 2024 |NOT OF PROC TO ESTABLISH ADM SUPPORT ORD |24001146DR

Case

CONNOLLY, MARTIN JEFFREY vs. DILBECK, COLLEEN M

Aug 26, 2024 |REGISTRATION OF SUPPORT |24001139DR

Case

THOMAS, JOSIAH vs. LAYTON, MARIE

Aug 29, 2024 |YOUNG, BRANDON |PATERNITY/DISESTABLISHMENT OF PATERNITY |24001161DR

Case

ALEMAN, FREDDY RENE vs. ALEMAN, NOA

Aug 30, 2024 |MALLORY, PETER A |OTHER DOMESTIC RELATIONS |24001166DR

Case

SANTIAGO, ARMANDO DE RON vs. ATLANTIC INSPECTION SERVICES, INC.

Aug 29, 2024 |HENRY, WILLIAM |DISCRIMINATION EMPLOYMENT/OTHER |24000764CA

Case

THE ESTATE OF: QUINN, DENNIS BRUCE

Aug 27, 2024 |SMILEY, ELIJAH |PETITION FOR FORMAL ADMINISTRATION |24000911CP

Case

Blalock Building Company, Inc. VS Regal Cinemas, Inc.

Aug 28, 2024 |2024000757CA

Case

MCADAMS, TIFFANY vs. N/A

Case

Jake LaBate VS Sarah Colon et al.

Aug 23, 2024 |2024000747CA

Ruling

GABRIELA RUEDA MEDINA VS ROJAS, INCORPORATED

Aug 29, 2024 |22STCV32305

Case Number: 22STCV32305 Hearing Date: August 29, 2024 Dept: 58 Judge Bruce Iwasaki Department 58 Hearing Date: August 29, 2024 Case Name: Medina v. Rojas, Incorporated dba Lupag Corp. Case No.: 22STCV32305 Motion: Motion for Summary Adjudication Moving Party: Defendant Rojas Incorporated dba Lupag Corp. Responding Party: Plaintiff Gabriela Rueda Tentative Ruling: The Motion for Summary Adjudication is denied. Plaintiff Gabriela Rueda Medina (Plaintiff) sued her former employer Defendant Rojas Incorporated dba Lupag Corp (Defendant) for various FEHA violations, Intentional Infliction of Emotional Distress (IIED), and wage and hour violations. Defendant moves for summary adjudication on the FEHA claims and IIED solely on the ground that they within the exclusive purview of the Workers Compensation Appeals Board. (Notice of motion, pp. 2-3) Because Workers Compensation proceedings do not preempt FEHA and related claims, and there are issues of fact as to Defendants justifications, the motion for summary adjudication is denied. Background Plaintiff Gabriela Rueda Medina (Plaintiff) is a former employee of Defendant Rojas Incorporated dba Lupag Corp (Defendant). Plaintiff alleges that she was fired on February 11, 2022, after sustaining and reporting a work injury. (Compl., ¶¶ 8, 12.) On October 23, 2022, Plaintiff filed a complaint against Defendant and DOES 1 to 100, alleging causes of action for: (1) Disability Discrimination in Violation of Fair Employment and Housing Act (FEHA), Cal. Gov. Code § 12940(a); (2) Disability Discrimination in Violation of FEHA Failure to Engage in the Interactive Process, Cal. Gov. Code § 12940(n); (3) Failure to Accommodate a Disability in Violation of FEHA, Cal. Gov. Code § 12940(m); (4) Wrongful Employment Termination; (5) Retaliation under Gov. Code § 12940(h); (6) Intentional Infliction of Emotional Distress (IIED); (7) Wage Violations under Lab. Code § 512; (8) Wage Violations under Lab. Code § 510(a); and (9) Wage Violations under Lab. Code § 200 et seq. In the Complaint, Plaintiff allegedly reported severe pain in both of her hands to the owner of the company, Herberto Rojas, Jr., (Mr. Rojas) (Compl., at ¶ 10.) Plaintiff alleges that Mr. Rojas required her to continue working, and eventually gave her three days off without referring her to the companys physician for a medical exam. (Id.) Plaintiff states that on February 2, 2022, as her pain intensified, rendering her unable to dress herself, she visited her personal physician. (Id. at ¶ 11.) According to Plaintiffs physician, the pain was caused by the repetitive work she was performing for Defendant. (Id.) On the same day, Plaintiff gave her doctors note to Defendant secretary, Vanessa Rodriguez (Ms. Rodriguez). (Id.) On February 11, 2022, Plaintiff was terminated. (Id. at 12.) On June 5, 2024, Plaintiff filed the instant motion for summary adjudication (the Motion), concurrently with a proposed order, separate statement of undisputed material facts, the declaration of Mr. Rojas (Rojas Decl.), the declaration of Laura Each (Each Decl.), and compendium of exhibits. On August 15, 2024, Plaintiff filed an opposition to the instant motion, concurrently with a separate statement, compendium of evidence, declaration of Maribel B. Ullrich (Ullrich Decl.), and compendium of exhibits. On August 21, 2024, Defendant filed a reply, concurrently with a response to Plaintiffs separate statement, and evidentiary objections. Evidentiary Objections Defendants Objections to Plaintiffs Evidence: Sustained: 6 and 22 Overruled: 1-5, 7-21, 23-51 Legal Standard A party may move for summary judgment if it is contended that the action has no merit or that there is no defense to the action or proceeding. (Code Civ. Proc., § 437c,¿subd. (a).) [I]f all the evidence submitted, and all inferences reasonably deducible from the evidence and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law, the moving party will be entitled to summary judgment. (Adler v. Manor Healthcare Corp.¿(1992) 7 Cal.App.4th 1110, 1119.) The moving party has the initial burden of production to make¿a prima facie¿showing of the nonexistence of any triable issue of material fact, and if he does so, the burden shifts to the opposing party to make¿a prima facie¿showing of the existence of a triable issue of material fact. (Aguilar v. Atlantic Richfield Co.¿(2001) 25 Cal.4th 826, 850; accord Code Civ. Proc., § 437c,¿subd. (p)(2).) A Defendant moving for summary judgment may meet its initial burden by proving that for each cause of action alleged, plaintiff cannot establish at least one element of the cause of action. (Code Civ. Proc., § 437c(p)(2).) The summary judgment procedure should be used with caution and any doubt as to the propriety of granting summary judgment should be resolved in favor of the party opposing the motion. (Saldana v. Globe-Weis Systems Co. (1991) 233 Cal.App.3d 1505, 1510.) Motions for summary adjudication are procedurally identical to motions for summary judgment. (Dunn v. County of Santa Barbara (2006) 135 Cal.App.4th 1281, 1290.) Analysis Defendant moves for summary adjudication on each of the FEHA and IIED causes of action on the same ground: Plaintiffs claims are within the exclusive purview of and are pending before the workers compensation appeals board. Plaintiff opposes the Motion, contending that triable factual disputes remain, requiring the motion for summary adjudication to be denied. Plaintiff argues that Defendant has failed to shift the burden to Plaintiff because Defendant has not offered evidence to show that Plaintiffs termination was legitimate. Plaintiff contends that workers compensation is not her exclusive remedy and there are triable issues of fact whether Plaintiffs termination was for a lawful purpose. Workers compensation exclusivity does not bar Plaintiffs FEHA or IIED Claims Defendant argues it is entitled to summary adjudication on the first, second, third, fourth, fifth, and sixth causes of action as a matter of law because workers compensation exclusivity bars Plaintiffs common law claims. The Workers Compensation Act (WCA) governs compensation to employees for injuries incurred in the course and scope of their employment. (See Cal. Const., art. XIV, § 4; Cal. Labor Code, § 3201; Charles J. Vacanti, M.D., Inc. v. State Compensation Insurance Fund (2001) 24 Cal.4th 800, 810.) Compensation under the WCA is an employees exclusive remedy against an employer for injuries sustained out of and in the course of employment. (See Cal. Labor Code, §§ 3600(a), 3602(a).) Whether exclusivity bars a cause of action against an employer depends on whether the alleged injury falls within the scope of the exclusive remedy provisions. (See Charles J. Vacanti, M.D., Inc., supra, 24 Cal.4th at 811.) The exclusive remedy provisions apply only in cases of industrial personal injury or death. (Shoemaker v. Myers (1990) 52 Cal.3d 1, 16.) The exclusive remedy provisions do not apply where the dual capacity doctrine applies. The dual capacity doctrine applies where the injury stems from an employer-employee relationship that is distinct and invokes a different set of obligations than the employers usual duties to its employee. (See Id.; Cole v. Fair Oaks Fire Protection District (1987) 43 Cal.3d 148, 161-62.) Causes of action predicated upon an injury that is collateral to or derivative of an injury compensable by the exclusive remedies of the WCA may be subject to the exclusivity bar. (Id.) While common law tort claims are generally preempted [citation], claims for separate injuries under distinct statutory schemes are not. (Veguez v. Governing Board of Long Beach Unified School District (2005) 127 Cal.App.4th 406, 418.) Even where an injury is otherwise compensable under the workers compensation system, a cause of action seeking damages based on the injury may nevertheless be allowable where the employers conduct falls outside the compensation bargain: if the alleged injury falls within the scope of the exclusive remedy provisions, then courts consider whether the alleged acts or motives that establish the elements of the cause of action fall outside the risks encompassed within the compensation bargain. (Light v. Department of Parks & Recreation (2017) 14 Cal.App.5th 75, 96 (Light).) Thus, unlawful discrimination and retaliation in violation of FEHA falls outside the compensation bargain and therefore claims of intentional infliction of emotional distress based on such discrimination and retaliation are not subject to workers compensation exclusivity. (Id. at p. 101.) Disability discrimination is not subject to workers compensation exclusivity. Disability discrimination is not preempted by workers compensation law. (City of Moorpark v. Superior Court. (1998) 18 Cal. 4th 1143, 1154; Meninga v Raleys Inc. (1989) 216 Cal.App.3d 79, 91; Fretland v. County of Humboldt (1999) 69 Cal.App.4th 1478, 1484-1485). Defendant ignores these precedents. These cases defeat its motion. In City of Moorpark, the plaintiff alleged causes of action for discrimination in violation of the FEHA, wrongful termination in violation of public policy (common law wrongful discharge), breach of contract, and intentional and/or negligent infliction of emotional distress. (City of Moorpark, supra, 18 Cal.4th at p. 1149.) The defendants demurred, arguing in part that, because the plaintiffs disability was work related, section 132a provided her exclusive remedy. (Id.) The trial court disagreed and overruled the demurrers to the FEHA and common law wrongful discharge causes of action. The Supreme Court affirmed. In City of Moorpark. Our Supreme Court explained that the existence of a workers compensation remedy does not by itself establish that the remedy is exclusive. Rather, the scope of workers compensation exclusivity depends on the terms of the exclusive remedy provisions. (Id., at 1154.) As a result, City of Moorpark concluded that section 132a does not provide an exclusive remedy and does not preclude an employee from pursuing FEHA and common law wrongful discharge remedies. (Id., at 1158.) Here, of course, the statutory claims that are the subject of this motion are, as in Moorpark, claims of disability discrimination. In Meninga, the plaintiff unquestionably received workers' compensation benefits due solely to emotional injury resulting from the discriminatory treatment she alleges, but later asserted FEHA claims against the defendant. (Meninga, supra, 216 Cal. App. 3d 79.) The defendant argued that the plaintiffs FEHA claims are barred because workers compensation provides the exclusive remedy. (Id. at p. 89.) The Meninga court acknowledged that at first glance defendants argument has some appeal given the exclusive remedy language of¿Labor Code sections 3601, subdivision (a), and 3602, subdivision. However, the court rejected that argument, reasoning [t]his approach would not only render the FEHA cause of action for employment discrimination a non sequitur where disability resulted; it would also make a hollow promise out of the public policy, stated in FEHA, of eliminating employment discrimination. (Ibid.) In Fretland, the plaintiff sued for wrongful termination. (Fretland, supra, 69 Cal.App.4th at 1482.) Plaintiff raised a FEHA claim based on disability discrimination. Defendants argued that plaintiffs recovery was solely and exclusively limited to workers compensation. (Id. at 1484.) Citing City of Moorpark, the Court of Appeal held that work-related injury discrimination is not a normal risk of the compensation bargain and found that the trial court erred in finding that plaintiffs FEHA claim was barred by the exclusive remedy provisions of the workers compensation laws. (Id. at pp. 1484, 1492.) In the instant case, Plaintiff alleges FEHA claims based on Defendants discrimination, retaliation, and failure to accommodate based on her disability. Her claims seek to remedy Defendants discriminatory employment practices. As the Moorpark and Meninga decisions explained, given the public policy reasons behind the adoption of FEHA the protection of civil rights and elimination of discriminatory practices the remedies of FEHA are meant to supplement the workers compensation scheme. Since a workers compensation claim cannot address her employers liability for employment discrimination, the Plaintiffs pending claim of workers compensation benefits does not bar her FEHA claims. 1. FEHA Disability Discrimination Claim [Issue No.1, 1st COA] A prima facie case for disability discrimination requires a plaintiff to show (1) she suffered from a known disability, (2) she was qualified to perform the essential functions of the job, (3) she suffered an adverse employment action, and (4) some other circ*mstance suggests discriminatory motive. (Avila v. Continental Airlines, Inc. (2008) 165 Cal.App.4th 1237, 1246; Guz v. Bechtel National Inc. (2000) 24 Cal.4th 317, 355.) First, Defendant argues that the evidence shows that Plaintiff was terminated because production of the salted plums Plaintiff packaged posed a totally ceased due to a reported risk of lead contamination, leaving Plaintiff with no work. (Id., at p. 11:16-21.) Defendant argues that there is no evidence that shows that Plaintiffs termination was improperly motivated. (Id., at p. 12:11.) Plaintiff maintains she was discriminated against due to her diagnosed carpal tunnel syndrome. (Opposition at p. 1:4-7.) Plaintiff alleges that her work required her to operate the machine with both hands, and when began to feel pain in December 2021 that interfered with her dressing herself, she reported the pain to Mr. Rojas. (Id. at p. 2:16-19.) Plaintiff avers that Mr. Rojas ignored her reported pain, and told her to continue working, and work faster. (Id., at p. 2:19-20.) Plaintiff alleges that upon being evaluated for the pain she felt in both hands, she asked Mr. Rojas to change her responsibilities to pack products other than the salted plums, which did not require machine operation using both hands. (Id. at p., 2:22-25.) Mr. Rojas allegedly fulfilled her request for three days and then had her return to the same machine. (Id., at p. 2:25-26.) Plaintiff contends that Mr. Rojas kept notes indicating that Plaintiff delivered x-ray report screenshots to Defendants secretary, Ms. Rodriguez, that have been deleted since Plaintiffs termination. (Id. at pp. 2:27-28, 3:1.) Following a medical appointment on February 3, 2022, Plaintiff brought a doctors note confirming her diagnosis to Ms. Rodriguez, who allegedly shared personal anecdotes of carpal tunnel syndrome, and placed the letter on Mr. Rojas desk. (Id. at p. 3:1-7.) On February 11, 2022, Ms. Rodriguez terminated Plaintiff. (Id.) Plaintiff contends in her complaint, in part, that she was terminated shortly after notifying Defendant of her disability (Id, 6:4-5, ¶ 16.) Plaintiff likewise argues that there was gossip at Defendants that she was fired because of her hand injury. (Id., 3:8-10.) Plaintiff has presented evidence to show that a triable issue of material facts exists as to these issues. While Defendant argues that Plaintiff was terminated for a legitimate purpose arising from a product-line recall, the evidence presented appears to show that her employment was terminated for other reasons. Defendant states that there is a dispute regarding whether [Plaintiff] actually reported anything to [Defendant]. (Motion, at p. 9:25-27.) The evidence is unclear as to whether Mr. Rojas received Plaintiffs doctor note, since Plaintiff only claims that After their conversation, [Ms. Rodriguez] put the envelope from Plaintiff on Mr. Rojas desk. (Opposition, at p. 3:8-9.) Plaintiff argues that she had a reasonable belief that a lack of work was a pretextual reason because there was always plenty of work to do, and Plaintiffs co-workers suffered similar injuries to Plaintiffs, but did not proceed with filing workers compensation claims due to an inferred fear of termination upon reporting injuries. (Opposition, at p. 4:5-16.) The motion for summary adjudication as to Issue No. 1 is denied. 2. FEHA Disability Discrimination, Failure to Engage in the Interactive Process & Failure to Accommodate Disability [Issue Nos. 2, 3, & 2nd, 3rd COAs] Government Code section 12940(n) provides that it is an unlawful employment practice [f]or an employer . . . to fail to engage in a timely, good faith, interactive process with the employee or applicant to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee or applicant with a known physical or mental disability or known medical condition. (Govt. Code, § 12940(n).) To establish a claim for Failure to Engage in the Interactive Process, a plaintiff must show that the employer (1) failed to engage in a good faith interactive process to determine effective reasonable accommodations, if any, (2) in response to a request for reasonable accommodation by an employee (3) with a known physical or mental disability. (Raine v. City of Burbank (2006) 135 Cal.App.4th 1215, 1222; Govt Code 12940(n).) Government Code section 12940(m) provides that it is an unlawful employment practice [f]or an employer . . . to fail to make reasonable accommodation for the known physical or mental disability of an applicant or employee. (Govt. Code, § 12940(m)(1).) Under the FEHA, a disabled employee is entitled to a reasonable accommodationwhich may include leave of no statutorily fixed durationprovided that such accommodation does not impose an undue hardship on the employer. (Sanchez v. Swissport, Inc. (2013) 213 Cal.App.4th 1331, 1338.) Holding a job open for a disabled employee who needs time to recuperate or heal is in itself a form of reasonable accommodation and may be all that is required where it appears likely that the employee will be able to return to an existing position at some time in the foreseeable future. (Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 263.) Plaintiff alleges that Defendant failed to engage in the interactive process because rather than being taken to the companys doctor upon reporting her work injury, she was placed back to work regular duties with severe pain. (Compl. 7:8-10, ¶ 23.) Plaintiff claims that she had a qualified disability that Defendant knew of, and Defendant failed to engage in any interactive process. (Id. ¶ 26.) Plaintiff further alleges Defendant failed to accommodate her disability, that she provided Ms. Rodriguez with the doctors note expecting Defendant to engage in discussions for possible accommodations. (Id. ¶¶ 32, 24.) As with the first cause of action, Defendant argues that Plaintiffs employment as a packer was terminated because there was no longer any work for Plaintiff due to an unexpected recall and discontinuance of the salted plum products that Plaintiff primarily packaged. (Motion, p. 11:20-23.) Defendant claims that a claim for discrimination under California Labor Code Section 132a simply does not fit because a notice from California Department of Food and Health requiring a recall on salted plums because of potential lead contamination preceded Plaintiffs delivery of the doctors note by one day. (Id, at p. 11:1:3, 17-19.) Plaintiff has presented evidence that Defendant failed to engage in a good faith interactive process prior to her termination and evidence that Plaintiff requested reasonable accommodations that were denied by a temporary change in work duties and termination. Disability discrimination is not preempted by workers compensation law. (City of Moorpark, supra, Cal. 4th 1143, at page 1154; Meninga v Raleys Inc. (1989) 216 Cal.App.3d 79, 91; Fretland v. County of Humboldt (1999) 69 Cal.App.4th 1478, 1484-1485). The crux of Defendants arguments to bar Plaintiffs disability discrimination claims are that Plaintiffs recovery is limited to workers compensation law remedies. But California courts have held that a WCAB petition does not have a preclusive effect on a plaintiffs claims of disability discrimination, failure to provide reasonable accommodation, and failure to engage in an interactive process, where the implicated issues before the WCAB were not identical to the plaintiffs FEHA discrimination claims. (Kaur v. Foster Poultry Farms LLC, (2022) 83 Cal. App. 5th 320, 351.) The motion for summary adjudication of Issues Nos. 2 and 3 is denied. 3. Wrongful Termination & Retaliation [Issue Nos. 4, 5 & 4th, 5th COAs] The elements of a claim for wrongful discharge in violation of public policy require the plaintiff to establish that the termination was substantially motivated by a violation of public policy. (Yau v. Allen (2014) 229 Cal.App.4th 144, 154.) As the Supreme Court explained in Guz v. Bechtel, legitimate reasons [citation] & are reasons that are facially unrelated to prohibited bias, and which, if true, would thus preclude a finding of discrimination. (See Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 358 (italics in original and footnote omitted).) One such example is unsatisfactory performance. (See, e.g., Trop v. Sony Pictures Entmt. Inc. (2005) 129 Cal.App.4th 1133, 1149 [pregnant woman terminated due to poor job performance].) While the objective soundness of an employers proffered reasons supports their credibility . . . the ultimate issue is simply whether the employer acted with a motive to discriminate illegally. (Guz, supra, 24 Cal.4th at 358 (italics in original).) The employers reasons need not necessarily have been wise or correct. (Id.) In other words, as long as the employer honestly believed in the facially unrelated reason, it is irrelevant whether the employers reason is trivial (see Slatkin v. Univ. of Redlands (2001) 88 Cal.App.4th 1147, 1157 [professors tenure denied based on academic politics]), or even completely untrue (King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 433 [driver accused of falsifying timecard]). If the employer meets its burden, the burden then shifts to the employee to show that the defendants legitimate reason is merely pretext. (See Guz v. Bechtel Nat. Inc., supra, 24 Cal.4th at 356.) Pretext may be inferred from the timing of the discharge decision, the identity of the decision-maker, or by the discharged employee's job performance before termination. (Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 224.) Pretext may [also] be demonstrated by showing that the proffered reason had no basis in fact, the proffered reason did not actually motivate the discharge, or the proffered reason was insufficient to motivate discharge. (Id.) To establish a prima facie case of FEHA retaliation, a plaintiff must show (1) they were engaged in protected activity, (2) they were qualified for their position or were performing competently in the position they held, (3) they suffered an adverse employment action, and (4) some other circ*mstance that suggests a retaliatory motive connecting the protected activity with the adverse action. (Guz, supra, at 355.) Under Cal. Gov. Code § 12940, protected activity includes a request for a reasonable accommodation, but there must have been for a bona-fide reasonable accommodation for the known physical or mental disability of an applicant or employee. (See Cal. Gov. Code § 12940(m)(1).) Subject to exceptions, workers compensation is the¿only¿remedy¿available to injured employees¿and their dependents¿against the employer or against any fellow employee responsible for injuries arising out of and in the course of employment. (Lab. Code §§ 3600-3602, 5300; see¿Shoemaker, supra, 52 Cal.3d at page 18.) There are some situations in which the injured employee may maintain a civil action against his or her employer. These include statutory exceptions such as: 1) physical assault by the employer; 2) aggravation of injury by the employers fraudulent concealment; 3) products liability cases, 4) power press guards; and 5) the employer is uninsured. (See Lab. Code §§ 3602, 3706, 4553.) Defendant argues that it had no basis to discriminate or retaliate against Plaintiff because Plaintiff was terminated prior to filing her WCAB claim. (Motion, p. 10:8-10.) Citing Shoemaker, Defendant contends that the evidence presented as to Plaintiffs termination does not correlate to any exceptions that would allow the claims to escape the exclusive jurisdiction of the WCAB. (Id., p. 10:5-6.) Defendant argues that Plaintiffs employment as a packer was terminated because there was no longer any work for Plaintiff due to an unexpected recall and discontinuance of the salted plum products that Plaintiff primarily packaged. (Motion, p. 11:20-23.) Particularly, Defendant argues that on February 2, 2022, it received a notice from the California Department of Food and Health mandating a recall on salted plums because of potential lead contamination. (Id. 11:17-19.) The next day, on February 3, 2022, Plaintiff allegedly provided a note to Defendants secretary regarding hand injuries. (Id. 11:12-16; UMF 10, 40, 70.) Defendant argues that it lacked an improper motivation to terminate Plaintiff because Plaintiff filed her WCAB claim, claiming she was unable to work, twelve days after her termination. (Id. p. 10: 27-28.) Plaintiff argues that Defendant failed to shift its burden to Plaintiff because Defendant had failed to offer evidence of actual loss of income following the recall, nor has Defendant offered evidence that Plaintiff could have remained employed with Defendant with some accommodation. (Opposition, p. 8:1-5.) Plaintiff distinguishes Shoemaker on the grounds that disability discrimination by an employer falls outside the compensation bargain that limits the jurisdiction of workers compensation claims. (Id., p. 9:5-15.) Plaintiff raises triable issues of fact as to (1) Defendants lack of evidence to justify that her termination following the mandated product recall was necessary, (2) whether Defendant had knowledge of Plaintiffs injuries and diagnosis, (3) whether the recall was the reason for Plaintiffs termination, and (4) the inference created by Plaintiffs termination following reporting her injuries. (Opposition, pp. 11:7-26, 12, 13.) The Court denied Plaintiffs motion to compel further production of financial documents. (August 15, 2024, Notice of Ruling.) Plaintiff argues that the termination due to the product recall was pretextual because she occasionally worked on different products, and Defendant continued to package and distribute the salted plums after the recall even instructing employees to conceal facts of this from the California Department of Public Health. (Opposition, p. 12:8-12.) Based on Plaintiffs claims of Defendants history of terminating injured employees and intimidating them into continuing to work based on the threat of termination, the trier of fact could find that Plaintiffs termination was wrongful. (Opposition, p. 13:8-10.) Plaintiff has met her burden to create a triable issue of fact as to the reason for her termination, and retaliation. Defendants motion for summary adjudication as to Issue Nos. 4 and 5 is denied. 4. Intentional Infliction of Emotional Distress [Issue No. 6, 6th COA] Defendant argues Plaintiff cannot establish her IIED cause of action because Plaintiffs factual allegations are based on conduct at the worksite within the employer-employee relationship and therefore, the cause of action is preempted by workers compensation exclusivity [Issue No. 6]. (Motion, pp. 12-13.) Intentional infliction of emotional distress requires (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff suffered severe emotional distress; and (3) the defendant's extreme and outrageous conduct was the actual and proximate cause of the severe emotional distress. (Crouch v. Trinity Christian Center of Santa Ana, Inc. (2019) 39 Cal.App.5th 995, 1007.) Moreover, to support the cause of action, [i]t is not enough that the conduct be intentional and outrageous. It must be conducted directed at the plaintiff, or occur in the presence of a plaintiff of whom the defendant is aware. [Citation.] The requirement that the defendants conduct be directed primarily at the plaintiff is a factor which distinguishes intentional infliction of emotional distress from the negligent infliction of such injury. (Ess v. Eskaton Properties (2002) 97 Cal.App.4th 120, 130.) Defendant offers no evidence that Plaintiff did not suffer emotional distress based on Defendants extreme and outrageous conduct. As with the FEHA claims, Defendants argument rests entirely on Workers Compensation exclusivity. Workers Compensation is ordinarily the exclusive remedy for conduct occurring within the normal course of the employer-employee relationship, such that an employees emotional distress injuries are subsumed under the exclusive remedy provisions of workers compensation. (See Miklosy v. Regents of Univ. of Cal. (2008) 44 Cal.4th 876, 902, quoting Livitsanos v. Superior Court (1992) 2 Cal.4th 744, 754.) However, it is also well-established [n]either discrimination nor harassment is a normal incident of employment, and causes of action for emotional distress predicated on such conduct are not barred by the Workers Compensation Act. (See Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 288 (Neither discrimination nor harassment is a normal incident of employment.).) Plaintiff alleged in the sixth cause of action that Defendants conduct of not providing Plaintiff with a doctor for her work injury, of placing her back to continue to work regular duties without having a doctor evaluate and treat Plaintiff injury and firing her because she sustained and reported a work injury is extreme and outrageous. (Compl., ¶ 59.) Plaintiff further alleged she suffered severe emotional distress due to Defendants action of wrongfully discharging Plaintiff due to Plaintiffs disability. (Id.) Defendant argues that the workers compensation exclusivity rule bars the IIED claim. Defendant cites Yau v. Santa Margarita Ford, Inc. (2014) 229 Cal. App. 4th 144, 162-163, for the proposition that IIED claims fall within the scope of the workers compensation exclusivity provisions. Yau concerns a former employees IIED claim against co-workers and supervisors for allegedly ordering him to sign fictitious vehicle warranty repair orders and terminating him by accusing him of stealing from the dealership and having six uniformed sheriffs escort him from the property. (Yau, supra, 229 Cal. App. 4th at pp. 150-151.) The court of appeal affirmed the trial courts sustaining of a demurrer as to the IIED claim. It concluded that emotional injuries sustained in the course of employment are preempted by the workers compensation scheme and generally will not support an independent cause of action. (Id. at p. 161.) It found that An employers intentional misconduct in connection with actions that are a normal part of the employment relationship & resulting in emotional injury is considered to be encompassed within the compensation bargain, even if the misconduct could be characterized as manifestly unfair, outrageous, harassment, or intended to cause emotional disturbance. (Id. at p. 162.) But Yau did not squarely consider a claim for intentional infliction of emotional distress based on FEHA retaliation or discrimination, and accordingly with respect to a case such as this one which does involve such claims, is of less persuasive value. (Light v. Department of Parks & Recreation (2017) 14 Cal.App.5th 75, 100, fn. 9.) In Light, the Court of Appeal stated that [a] number of California authorities have concluded claims for intentional infliction of emotional distress in the employment context may be asserted where the actionable conduct also forms the basis for a FEHA violation. (Id. at p. 97.) The court concluded that IIED claims based on FEHA violations are not within the exclusive purview of the WCAB: [W]e are unwilling to abandon the longstanding view that unlawful discrimination and retaliation in violation of FEHA falls outside the compensation bargain and therefore claims of intentional infliction of emotional distress based on such discrimination and retaliation are not subject to workers compensation exclusivity. (Id. at p. 101.) Defendant, while relying on Yau, fails even to discuss Light, and its disagreement with Yau. The longstanding view described in Light defeats Defendants motion to summarily adjudicate the Sixth Cause of Action. The motion for summary adjudication as to the IIED claim is denied. Conclusion Defendants motion for summary adjudication is denied.

Ruling

JUAREZ vs ANCHOS, INC.

Aug 27, 2024 |CVRI2204795

MOTION FOR PRELIMINARYCVRI2204795 JUAREZ VS ANCHOS, INC. APPROVAL OF CLASS ACTIONSETTLEMENTTentative Ruling: Appearances requested to discuss:1. Definition of released parties is broader than that described in the CMO (includesmembers, managers, representatives, attorneys, insurers, investors, shareholders,administrators, parent companies, subsidiaries, affiliates, predecessors, joint employers,assigns and joint venturers). Who are we trying to cover? CMO ¶ G.3.e.2. Definition of released PAGA claims differs from the CMO. CMO ¶ G.3.e.iv.3. Amount of service award—note the requirements for final approval, which might result ina reduction of the requested $10,000.4. Proposed order refers to settlement agreement as an attachment (Exhibit 1) but it isn’tattached. That’s fine—but the order needs to be revised. Check the CMO as to the formof the order (which requires that the form of the notice including the opt out and objectionforms, be attached). CMO ¶ G.4.5. Need declaration from defendant. CMO ¶ G.3.k.

Ruling

KHATCHATUR BERBERIAN VS WALT DISNEY PICTURES, ET AL.

Aug 28, 2024 |23STCV22374

Case Number: 23STCV22374 Hearing Date: August 28, 2024 Dept: 31 Tentative Ruling Judge Kerry Bensinger, Department 31 HEARING DATE: August 28, 2024 TRIAL DATE: Not set CASE: Khatchatur Berberian v. Walt Disney Pictures, et al. CASE NO.: 23STCV22374 DEMURRERS WITHOUT MOTIONS TO STRIKE MOVING PARTY: Defendants Walt Disney Pictures, et al. RESPONDING PARTY: Plaintiff Khatchatur Berberian I. BACKGROUND This is a Fair Employment and Housing Act (FEHA) action. On September 15, 2023, Plaintiff, Khatchatur Berberian, filed a Complaint against Defendants Walt Disney Pictures, The Walt Disney Company, Disney Worldwide Services, Inc., Chester Carr (Carr), Sara Frederick, (Frederick), and Scott Mohler (Mohler). On November 7, 2023, Plaintiff filed the First Amended Complaint (FAC). On February 1, 2024, the court sustained Individual Defendants demurrer to the FAC. On March 29, 2024, the court sustained Walt Disney Pictures, The Walt Disney Company, Disney Worldwide Services, Inc.s (hereafter, Disney Defendants) demurrer to the FAC. On April 22, 2024, Plaintiff timely filed the Second Amended Complaint (SAC), alleging causes of action for: 1. Discrimination in Violation of the FEHA 2. Hostile Work Environment Harassment in Violation of the FEHA 3. Retaliation in Violation of the FEHA 4. Failure to Provide Reasonable Accommodation in Violation of the FEHA 5. Failure to Engage in the Interactive Process in Violation of FEHA 6. Failure to Prevent Discrimination, Harassment, or Retaliation in Violation of FEHA 7. Breach of Express Oral Contract Not to Terminate Employment Without Good Cause 8. Breach of Implied-in-Fact Contract Not to Terminate Employment Without Good Cause 9. Negligent Hiring, Supervision, and Retention 10. Whistleblower Retaliation (Labor Code § 1102.5) 11. Wrongful Termination of Employment in Violation of Public Policy 12. Intentional Infliction of Emotional Distress. The only causes of action asserted against Carr, Frederick, and Mohler (hereafter, Individual Defendants) are the second and twelfth causes of action. Before the court are two demurrers to the SAC: (1) Individuals Defendants demurrer to the second and twelfth causes of action; and (2) Disney Defendants demurrer to the fourth, fifth, seventh, eighth, tenth, and twelfth causes of action. The demurrers are briefed. The court rules as follows. II. LEGAL STANDARD A demurrer for sufficiency tests whether the complaint states a cause of action.¿ (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.)¿ When considering demurrers, courts read the allegations liberally and in context, accepting the alleged facts as true.¿ (Nolte v. Cedars-Sinai Medical Center (2015) 236 Cal.App.4th 1401, 1406.)¿ Because a demurrer challenges defects on the face of the complaint, it can only refer to matters outside the pleading that are subject to judicial notice.¿ (Arce ex rel. Arce v. Kaiser Found. Health Plan, Inc. (2010) 181 Cal.App.4th 471, 556.)¿ III. JUDICIAL NOTICE Individual Defendants and Disney Defendants submit identical requests for judicial notice of the following documents: · Verified Charge of Discrimination filed by Plaintiff with the Equal Employment Opportunity Commission (EEOC) and the California Department of Fair Employment and Housing (DFEH) on November 18, 2016, Charge No. 480-2016-03070. (Request for Judicial Notice (RJN) 1.) · DFEH Notice to Complainant and Respondent and Notice to Complainant of Right to Sue dated November 18, 2016, Charge No. 480-2016-03070. (RJN 2.) · EEOCs Dismissal and Notice of Rights, dated December 1, 2016, Charge No. 480-2016-03070. (RJN 3.) · Complaint of Employment Discrimination filed on behalf of Plaintiff with the DFEH on September 19, 2022, Case No. 202209-18285620. (RJN 4.) · DFEH Notice of Case Closure and Right to Sue letter dated September 19, 2023, Case No. 202209-18285620. (RJN 5.) The court previously granted these requests in connection with the rulings on the demurrers to the FAC. (See Minute Orders, 2/1/24 and 3/29/24.) IV. DISCUSSION A. Individual Defendants Demurrer The court begins by addressing Individual Defendants demurrer. Because SAC alleges different conduct on the part of each individual defendant, the court considers the allegations as to each individual defendant. 1. Hostile Work Environment Harassment in Violation of FEHA (2nd Cause of Action) Government Code section 12940, subdivisions (a) and (j)(1) provide the basis for FEHA claims for discrimination and harassment: race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or veteran or military status . . . A hostile work environment is a recognized form of harassment. To establish a hostile work environment, harassment must be so severe or pervasive as to alter the conditions of the victims employment and create an abusive working environment based on the protected characteristic. (See Hughes v. Pair (2009) 46 Cal.4th 1035, 1043.) Harassment must be of a repeated, routine, or generalized nature when the harassing conduct is not severe. (See Lyle v. Warner Bros. Television Productions (2006) 38 Cal.4th 264, 283.) Harassment that is occasional, isolated or sporadic is insufficient. (See id.) Whether an environment is hostile or abusive can be determined only by looking at all the circ*mstances. [Citation.] These may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employees work performance. The effect on the employees psychological well being is, of course, relevant to determining whether the plaintiff actually found the environment abusive. But while psychological harm, like any other factor, may be taken into account, no single factor is required. (Jones v. Dept of Corr. & Rehab. (2007) 152 Cal.App.4th 1367, 1378 [cleaned up].) Frederick Frederick was Plaintiff and Carrs manager. (See SAC, ¶ 15(c).) Like the FAC, the SAC makes two allegations against Frederick: (1) that in or around February of 2014, Plaintiff complained to Frederick about a physical altercation with Carr and Frederick did nothing to address Carrs conduct (see SAC, ¶ 15(b)-(c)); and (2) that in or around 2018, Plaintiff complained to Frederick about Carrs treatment of Plaintiff and Plaintiffs suspicion that Carr was stealing. In response, Frederick dismissed Plaintiffs concerns, accused Plaintiff of threatening Carr, and a week later attempted to enforce[1] a write-up against Plaintiff for insubordination (SAC, ¶ 15(i)). These same allegations appeared in the FAC. The court sustained the demurrer. The court found previously that these allegations were insufficient to state a hostile work environment claim against Frederick because there was a lack of nexus between Frederick[s] 2014 and 2018 conduct and a protected characteristic. (Minute Order, 2/1/24.) The court further observed that Plaintiffs allegations failed to describe conduct by Frederick that is severe or pervasive, or repeated, routine, or generalized in nature. (Id.) The same defects still plague the SAC. There are no new allegations establishing that Fredericks conduct was severe, pervasive, or routine, let alone any allegations connecting that conduct to Plaintiffs protected characteristic. Plaintiffs opposition is difficult to parse. Plaintiff binds together all the alleged conductFrederick and Carrto argue the allegations are sufficient to state a claim against all defendants. Embedded in the opposition is the argument that the allegations are sufficiently pervasive to state a hostile work environment because (1) Frederick refusal to accommodate his requests not to work with Carr, and (2) Fredericks attempt to write-up Plaintiff for complaining about Carrs conduct. (See Opp., pp. 14:14-15:8.) There are three problems with this argument. First and foremost, Plaintiff does not allege that Frederick, specifically, denied Plaintiffs accommodation request. (See SAC, ¶¶ 15(e), 16.) Second, there are no allegations connecting the denial of the accommodations request to Plaintiffs protected characteristic. Third, the refusal of Plaintiffs accommodation request is alleged only in support of the fourth cause of action for failure to provide reasonable accommodation and the fifth cause of action for failure to engage in an interactive process. (See SAC, ¶¶ 46, 54.) The allegation is not alleged in support of the second cause of action. (See SAC, ¶¶ 29-36.)[2] Fredericks demurrer to the second cause of action is SUSTAINED. Because Plaintiff has not alleged any new facts to cure this defect, leave to amend is DENIED. Given the courts ruling, the court need not and does not address Fredericks argument that the second cause of action is time-barred. Carr Carr was a supervisor. (See SAC, ¶ 15(b).) Like the FAC, the SAC makes the following allegations against Carr: (1) in or around February of 2014, Plaintiff and Carr had a physical altercation wherein Carr shoved Plaintiff against the wall and put his hands around Plaintiffs head and blocked him from leaving the area (SAC, ¶ 15(b)); (2) on several occasions, Carr accused Plaintiff of not doing his job correctly, such as not picking up packages and misplacing packages, when Plaintiff was clearly not doing so (SAC, ¶ 15(f)); at least twice in early 2020, Carr went out of his way to be in Plaintiffs space and stared at Plaintiff and gave him dirty looks (Id.); Carr visited Plaintiff at Plaintiffs work area without warning and in violation of Plaintiffs accommodation (Id.); at least twice in 2020, Carr followed Plaintiff in an intimidating manner while Plaintiff completed his job duties (Id.); and, that Carrs conduct caused Plaintiff to feel as though Carr was targeting him due to his complaints about Carr and his requests not to work with Carr (Id.). These same allegations appeared in the FAC. The court found these allegations were insufficient to state a hostile work environment claim against Carr because there were no factual allegations connecting Carrs conduct and Plaintiffs protected characteristic. (Minute Order, 2/1/24.) Plaintiff has not addressed this defect. Accordingly, Carrs demurrer to the Second Cause of Action is SUSTAINED. Because Plaintiff has not alleged any new facts to cure this defect after being given leave to amend once before, leave to amend is DENIED. Given the courts ruling, the court need not and does not address Carrs argument that the second cause of action is time-barred. 2. Intentional Infliction of Emotional Distress (12th Cause of Action) The elements of an intentional infliction of emotional distress (IIED) cause of action are: (1) extreme and outrageous conduct by the defendant; (2) intention to cause or reckless disregard of the probability of causing emotional distress; (3) severe emotional suffering; and (4) actual and proximate causation of the emotional distress. (See Moncada v. West Coast Quartz Corp. (2013) 221 Cal.App.4th 768, 780.) To satisfy the element of extreme and outrageous conduct, defendants conduct must be so extreme as to exceed all bounds of that usually tolerated in a civilized society. (Id.) A personnel management decision does not constitute extreme and outrageous conduct even if it were improperly motivated by discrimination and retaliation. (See Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 79-80; see also Light v. California Department of Parks and Recreation (2017) 14 Cal.App.5th 75, 101-102.) Like the FAC, Plaintiff bases his IIED claim on Fredericks alleged conduct in 2014 and 2018, Carr and Mohlers alleged conduct the last of which occurred in 2020, and Plaintiffs termination in 2021. The court sustained Individual Defendants demurrer to the IIED claim in the FAC because it was based on conduct that occurred beyond the applicable statute of limitations. A cause of action for IIED must be brought within 2 years. (Code Civ Proc., § 335.1.) Here, Plaintiff filed this action more than two years later (on September 15, 2023). The SAC does not allege any new facts. Nonetheless, Plaintiff attempts to avoid the same result by arguing that Plaintiffs termination on September 21, 2021 is sufficient to sustain his IIED claim under a continuing violations theory. Generally, the continuing violations doctrine may expand the limitations period for an IIED claim where the outrageous conduct is an ongoing pattern of harassment or discrimination. (Murray v. Oceanside Unified Sch. Dist. (2000) 79 Cal.App.4th 1338, 1363.) However, as the court noted in its February 1, 2024, order, Plaintiffs termination is the only event that falls within the two-year limitations period. The court further noted that the Individual Defendants, as employees of the [Disney] Defendants, cannot be held liable for terminating Plaintiffs employment. (Minute Order, 2/01/24.) Plaintiff does not meet this argument. The IIED claim against Individual Defendants remains defective. Accordingly, Individual Defendants demurrer to the twelfth cause of action is SUSTAINED. Because Plaintiff has not alleged any new facts to cure this defect, leave to amend is DENIED. 3. Conclusion Frederick and Carrs demurrer to the second cause of action is Sustained. Individual Defendants demurrer to the twelfth cause of action is Sustained. Leave to amend is Denied. B. Disney Defendants Demurrer Disney Defendants demur to the fourth, fifth, seventh, eighth, tenth, and twelfth causes of action in the SAC. The court addresses each cause of action in turn. 1. Failure to Provide Reasonable Accommodation (4th Cause of Action) The Fourth Cause of Action is based on Disney Defendants failure to provide Plaintiff with his requested accommodation not to work with Carr because working with Carr exacerbated Plaintiffs anxiety and depression. There are three elements to a failure to accommodate action: (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 plaintiffs disability.¿ (CACI No. 2541; Hernandez v. Rancho Santiago Cmty. College Dist. (2018) 22 Cal.App.5th 1187, 1193-1194.) [A]n employer's persistent failure to reasonably accommodate a disability . . . is a continuing violation if the employer's unlawful actions are (1) sufficiently similar in kindrecognizing, & , that similar kinds of unlawful employer conduct, such as acts of harassment or failures to reasonably accommodate disability, may take a number of different forms (see Fielder v. UAL Corp., supra, 218 F.3d at pp. 987-988); (2) have occurred with reasonable frequency; (3) and have not acquired a degree of permanence. (Berry [v. Board of Supervisors of L.S.U. (1983) 715 F.2d 971], 981.) But consistent with our case law and with the statutory objectives of the FEHA, we further hold that permanence in the context of an ongoing process of accommodation of disability, or ongoing disability harassment, should properly be understood to mean the following: that an employer's statements and actions make clear to a reasonable employee that any further efforts at informal conciliation to obtain reasonable accommodation or end harassment will be futile. (Richards, 26 Cal.4th at p. 823.) In sustaining the Disney Defendants demurrer to the FAC, the court agreed with Disney Defendants that the fourth cause of action was time-barred, and further, that the continuing violation doctrine did not apply. In so finding, this court observed that Plaintiff should have reasonably understood that litigation was his only alternative to vindicate his rights. And, Plaintiff resorted to litigation when he filed a charge with DFEH in 2016 for a request for accommodation which was first made in 2014. Plaintiff asserted the same violation. Plaintiff does not allege any new facts in the SAC to support this cause of action. As before, Disney Defendants argue this claim is time-barred and Plaintiff contends that the continuing violation doctrine applies. Plaintiff now attempts to avoid demurrer by again advancing the same argument: that the failure to accommodate had not reached a level of permanence until Plaintiffs termination. In support, Plaintiff cites Acuna v. San Diego Gas & Electric Co. (2012) 217 Cal.App.4th 1402 (Acuna) and Blue Fountain Pools & Spas Inc. v. Superior Court (2020) 53 Cal.App.5th 239 (Blue Fountain). Neither case changes the result. In Acuna, Acuna filed a 2007 DFEH complaint alleging that her employer was refusing to accommodate her disability. The trial court ruled, and the Court of Appeal agreed, that [b]y retaining counsel and filing a DFEH complaint, Acuna manifested an understanding that further attempts at informal, rather than formal, resolution of the disability accommodation process would not be successful and were futile. Under these circ*mstances, the continuing violations doctrine is inapplicable. Because Acuna did not file her lawsuit within one year of receiving the [2007] right-to-sue notice, her disability discrimination claim is time-barred. (Acuna, 217 Cal.App.4th at pp. 14141415.) Here, Plaintiff tries to distinguish this case from Acuna by stating he did not retain counsel, and Disney Defendants failure to accommodate Plaintiff did not reach a level of permanence. The court disagrees. Plaintiff focuses on the wrong event in Acuna. The event which triggered the statute of limitations in Acuna was receiving the right-to-sue notice in 2007, not retaining counsel. Moreover, like Acuna, Plaintiff filed a DFEH complaint and thus manifested an understanding that further attempts at informal, rather than formal, resolution & would not be successful and were futile. (Acuna, at p. 1415.) So too here. Blue Fountain is also distinguishable. There, the Court of Appeal denied a writ of mandate following the denial of a motion for summary adjudication on the issue of permanence under the FEHA. Blue Fountain involved the question whether it is reasonable for an employee to think that renewing a complaint to new management would not be futile. (Blue Fountain, supra, 53 Cal.App.5th at p. 252.) That is not this case. Plaintiff does not allege similar facts. Plaintiff alleges the same violation from 2014 to 2021: Disney Defendants failure to accommodate the request not to work with Carr. Plaintiff filed a charge with DFEH in 2016 and received a right-to-sue letter. At this point, Plaintiff manifested his understanding that informal attempts to resolution were futile. Plaintiff did not timely file this lawsuit. This claim is time-barred.[3] Disney Defendants demurrer to the fourth cause of action is SUSTAINED. Leave to amend is DENIED. 2. Failure to Engage in Good Faith Interactive Process (5th Cause of Action) The fifth cause of action is based on Disney Defendants purported failure to engage in a good faith interactive process with Plaintiff concerning his request not to work with Carr. FEHA requires employers to engage in a good faith interactive process to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee . . . with a known physical or mental disability . . . .¿ (Gov. Code, § 12940, subd. (n); Raine v. City of Burbank (2006) 135 Cal.App.4th 1215, 1222.)¿ To establish a claim for failure to engage in the interactive process, a plaintiff must show: (1) defendant was an employer; (2) plaintiff was defendants employee; (3) plaintiff was disabled; (4) plaintiff requested reasonable accommodation; (5) plaintiff was willing to participate in a timely good faith interactive process with plaintiff to determine whether a reasonable accommodation could be made; (6) defendant failed to participate in this process; (7) plaintiff was harmed; and (8) defendants failure to engage in a good-faith interactive process was a substantial factor in causing plaintiffs harm.¿ (CACI No. 2546.)¿¿¿ Disney Defendants argue this claim is time-barred. In sustaining Disney Defendants demurrer to the FAC, the court stated: Like the fourth cause of action, Disney Defendants argue that the fifth cause of action is time-barred because Plaintiff filed his first charge with the DFEH in 2016. (See RJN 1.) Therefore, Plaintiff was on notice at least as of 2016 that further efforts to end the unlawful conduct would be in vain. The court agrees. Plaintiffs cause of action accrued in 2016. He was on notice he needed to litigate his claim. (Richards, supra, 26 Cal.4th at p. 823.) As alleged, Disney Defendants failure to engage in a good faith interactive process regarding Plaintiffs request not to work with Carr is a repetition of the same claim. Plaintiff does not allege any new violation occurring in the applicable period that would support this cause of action. The reasoning applies here -- again. Disney Defendants demurrer to the fifth cause of action is SUSTAINED. Leave to amend is DENIED. 3. Breach of Oral Contract and Breach of Implied-in-Fact Contract (7th and 8th Causes of Action) [T]he vital elements of a cause of action based on a contract are mutual assent (usually accomplished through the medium of an offer and acceptance) and consideration. As to the basic elements, there is no difference between an express and an implied[-in-fact] contract.¿ (Pacific Bay Recovery Inc. v. California Physicians Services, Inc. (2017) 12 Cal.App.5th 200, 215.)¿ To prevail on a cause of action for breach of contract, the plaintiff must prove (1) the contract, (2) the plaintiff's performance of the contract or excuse for nonperformance, (3) the defendant's breach, and (4) the resulting damage to the plaintiff.¿ (Richman v. Hartley (2014) 224 Cal.App.4th 1182, 1186.)¿ While an express contract is defined as one, the terms of which are stated in words (Civil Code, § 1620), an implied [in fact] contract is an agreement, the existence and terms of which are manifested by conduct (Civ. Code, § 1621)&[B]oth types of contract are identical in that they require a meeting of minds or an agreement [citation]. Thus, it is evident that both the express contract and contract implied in fact are founded upon an ascertained agreement or, in other words, are consensual in nature, the substantial difference being in the mode of proof by which they are established [citation]. [Citation.]¿ (Pacific Bay Recovery, supra, 12 Cal.App.5th at pp. 215-16.)¿ The court sustained Disney Defendants demurrer to the seventh and eighth causes of action because the FAC did not allege the terms, conditions, and circ*mstances of the contract not to terminate Plaintiff without good cause. (Minute Order, 3/29/24.) In the SAC, Plaintiff asserts one new allegation in support of his breach of contract claims: When Berberian was first interviewed and hired at Disney, he was told, Welcome to the Disney family and that many people spent their entire careers at Disney and retire from Disney. Thus, throughout his over 20-years of employment, Berberian saw this to be true, as he himself was able to work for Defendants for decades and witnessed several long-term employees remain employed for decades and eventually retire. As such, it was clear that the culture and practice of Disney was to keep employees long-term and Berberian was hopeful that he could continue working and, eventually, retire from Disney. SAC, ¶¶ 15(a), 69, 74.) Plaintiff also alleges, as before, that he received positive reviews during his employment, and he performed his job in an exemplary manner. (SAC, ¶ 12.) These allegations are still insufficient to support a breach of an express oral contract claim. For a breach of an express oral contract, a plaintiff must allege explicit words by which the parties agreed that he would not be terminated without good cause. (Zilmer v. Carnation Co. (1989) 215 Cal.App.3d 29, 34-36, overruled on other grounds by Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238.) The SAC does not allege the explicit words to which the parties agreed. The court reaches the same conclusion as to the eighth cause of action for breach of implied-in-fact contract. In California, employment is presumed to be at-will if there is no express agreement specifying the length of employment or grounds for termination. (Lab. Code § 2922; Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654, 677.) An employee can rebut that presumption by establishing the existence of an express contract, or by showing that the parties conduct created an implied-in-fact contract restricting the employers ability to terminate him. (Foley at p. 677.) However, an employees mere passage of time in the employers service, even where marked with tangible indicia that the employer approves the employees work, cannot alone form an implied-in-fact contract that the employee is no longer at will. (Guz v. Bechtel Natl, Inc. (2000) 24 Cal.4th 317, 341-42.) Here, Plaintiff alleges only that he was employed by Disney Defendants for a time and that he was given positive performance reviews. Under Guz, this is insufficient to establish the existence of an express contract. Accordingly, Disney Defendants demurrer to the Seventh and Eighth Causes of Action is SUSTAINED. Leave to amend is DENIED. 4. Whistleblower Retaliation (10th Cause of Action) Labor Code section 1102.5, subdivision (b) provides, [a]n employer, or any person acting on behalf of the employer, shall not retaliate against an employee for disclosing information, or because the employer believes that the employee disclosed or may disclose information, to a government or law enforcement agency, to a person with authority over the employee or another employee who has the authority to investigate, discover, or correct the violation or noncompliance, or for providing information to, or testifying before, any public body conducting an investigation, hearing, or inquiry, if the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation, regardless of whether disclosing the information is part of the employee's job duties.¿ (Lab. Code, § 1102.5, subd. (b).)¿ To establish a claim for whistleblower retaliation, the following elements must be met: (1) plaintiff engaged in a protected activity; (2) plaintiff suffered an adverse employment action; and (3) a causal link exists between the protected activity and adverse actions. (Mokler v. Cty. of Orange (2007) 157 Cal.App.4th 121, 138.) The tenth cause of action is based on Plaintiffs complaints about Carrs and Mohlers conduct and his continual request for reasonable accommodation. (See SAC, ¶¶ 15(c), (e), (g), (j), (k).) Further, Plaintiff was subjected to adverse employment actions when he was denied accommodations, written up by Frederick, and subsequently furloughed then terminated. (SAC, ¶¶ 15(i)-(l).) The court previously sustained Disney Defendants demurrer to this cause of action on two grounds: (1) it was time-barred; and (2) the allegations did not establish a causal link between the protected activities and adverse employment actions. Plaintiff does not allege any new facts in the SAC to support his retaliation claim. The court again finds Plaintiffs retaliation claim is insufficiently pleaded. A look at each basis for his retaliation claim proves the point. First, Plaintiff conflates a failure to accommodate with an adverse employment action. (See Brown v. Los Angeles Unified School District (2021) 60 Cal.App.5th 1092, 1106-1107 [we note the FEHA scheme prohibits specific unlawful employment practices by covered employers, e.g., discrimination, retaliation, failure to make reasonable accommodation, failure to engage in the interactive process with the employee. We conclude that the commission of one specific prohibited employment practice does not, in and of itself, constitute commission of all other prohibited employment practices under the broad rubric of policies or practices affecting the terms, conditions or privileges of employment. Such an interpretation would be contrary to the whole point of specifically separating conduct into individual unlawful employment practices. Brown has not alleged she was the target of disparate treatment. Nor has she alleged a policy or practice that had a disproportionate effect on employees suffering from a disability. She simply alleged that LAUSD failed to engage meaningfully with her in the interactive process and would not reasonably accommodate her disability. Those allegations pertain to her remaining causes of action, but we decline to construe them, without more, as adverse employment actions sufficient to support a claim of discrimination in the terms and conditions of employment. We agree with the trial court that Brown has conflated adverse employment action with the failure to accommodate and failure to engage claims.].) Second, Frederick attempted to write-up Plaintiff for reporting Carrs conduct in 2018. That event, having occurred (up to) four years prior the filing of his Complaint with this court, is time-barred. Third, Plaintiffs furlough (in 2020) and eventual termination (in 2021) are still untethered to the alleged protected activity (in 2018 and 2019). Accordingly, Disney Defendants demurrer to the tenth cause of action is SUSTAINED. Leave to amend is DENIED. 5. IIED (12th Cause of Action) The elements of an intentional infliction of emotional distress (IIED) cause of action are: (1) extreme and outrageous conduct by the defendant; (2) intention to cause or reckless disregard of the probability of causing emotional distress; (3) severe emotional suffering; and (4) actual and proximate causation of the emotional distress. (See Moncada, supra, 221 Cal.App.4th at p. 780.)¿¿ A cause of action for intentional infliction of emotional distress accrues, and the statute of limitations begins to run, once the plaintiff suffers severe emotional distress as a result of outrageous conduct on the part of the defendant. (Cantu v. Resol. Tr. Corp. (1992) 4 Cal.App. 4th 857, 889.) ¿ The IIED claim is based upon Individual Defendants alleged conduct and Disney Defendants allegedly wrongful termination of Plaintiffs employment. As noted before, the SAC does not allege any new facts in support of the IIED claim. The court has sustained Individual Defendants demurrer to the IIED cause of action because it is time-barred. (See Discussion, supra, section (C)(2).) The court further noted that the only alleged conduct falling within the statute of limitations was Plaintiffs termination. However, terminating an employee is not alone sufficient to satisfy the standard for extreme and outrageous conduct. (Pitman v. City of Oakland, 197 Cal.App.3d 1037, 1047.) Accordingly, Disney Defendants demurrer to the twelfth cause of action is likewise SUSTAINED. Leave to amend is DENIED. 6. Conclusion Disney Defendants demurrer is Sustained. Leave to amend is Denied. V. DISPOSITIONS Individual Defendants demurrer is Sustained. Disney Defendants demurrer is Sustained. Leave to amend is Denied. Plaintiff is directed to file a Third Amended Complaint for the sole purpose of removing the objected-to causes of action within 20 days of this order. Disney Defendants are to file and serve their Answer to the Third Amended Complaint within 20 days of service of the amended pleading. Defendants to give notice. Dated: February 1, 2024 Kerry Bensinger Judge of the Superior Court [1] As the best the court can tell from the SAC, Fredericks attempt to enforce a write-up against Plaintiff means Frederick attempted to formally reprimand Plaintiff for accusing Carr of stealing. However, the write-up process was not completed for unknown reasons. [2] Citing Roby v. McKesson Corp. (2009) 47 Cal.4th 686, Plaintiff asserts that Fredericks attempt to write Plaintiff up for reporting Carrs suspicious behavior may be actionable as harassment because it had the effect of communicating a hostile message. Plaintiff misreads Roby. In Roby, an employee (Roby) sued her employer and her supervisor (Schoener) for harassment and related claims. (Roby, 47 Cal.4th at p. 697.) Roby generally alleged that she suffered from panic attacks and was terminated for reasons having to do with her disability. (Ibid.) The evidence at trial disclosed that Schoener made negative comments in front of other workers about Roby's body odor, although Schoener knew from Roby that medication was causing the odor. (Id. at p. 695.) Moreover, Schoener openly ostracized Roby in the office, refusing to respond to Roby's greetings and turning away when Roby tried to ask questions, and Schoener made a facial expression of disapproval when Roby took rest breaks because of her panic attacks. (Ibid.) The jury returned a verdict on Robys claims, including her harassment claim. The Court of Appeal overturned the harassment verdict on the ground that the evidence was insufficient. Relying on Reno v. Baird (1998)18 Cal.4th 640, 645-46 (Reno) and Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55 (Janken), the Court of Appeal reasoned that a plaintiff could not use personnel management actions as evidence to support a harassment claim. (Id. at pp. 700-701.) The Supreme Court reversed. Explaining that harassment focuses on situations in which the social environment of the workplace becomes intolerable because the harassment (whether verbal, physical, or visual) communicates an offensive message to the harassed employee, the Court found that Schoener's actions could not fairly be characterized as an official employment action. None involved Schoener's exercising the authority that [the employer] had delegated to her .... Rather, these were events that were unrelated to Schoener's managerial role, engaged in for her own purposes. (Id. at pp. 706, 709, emphasis in original.) In other words, Roby affirmed the principle first stated previously in Reno that the exercise of personnel management authority properly delegated by an employer to a supervisory employee might result in discrimination, but not in harassment. (Id. at p. 706, citing Reno, supra, at p. 646, emphasis in original.) Unlike the supervisor in Roby, Fredericks action attempting to write up Plaintiff -- was an employment action. Further, Plaintiff does not allege that Frederick directly harassed Plaintiff, or acted outside of her delegated authority for her own purpose. Roby is inapposite. [3] Plaintiff advances the argument that Plaintiffs 2016 DFEH charge does not reference claims for failure to provide a reasonable accommodation or failure to engage in the interactive process. He merely checked off disability as a protected category and stated claims for discrimination and retaliation. As such, Plaintiff argues his second DFEH charge in 2022 set forth his fourth and fifth causes of action for the first time. The argument lacks merit. The Court of Appeal rejected a similar argument in Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243. In Nazir, Nazir checked the boxes for race, color, age, religion, disability, and national origin and ancestry in response to a question DFEH pre-complaint questionnaire asking: I believed I was discriminated against because of my (please circle). (Id. at p. 264.) There was no box for harassment. When Nazir filed a lawsuit, he asserted a harassment claim against the defendant. (Id. at p. 250.) Finding that the plaintiff had failed to exhaust his administrative remedies, the trial court granted summary adjudication on the plaintiffs harassment claim. (Id. at p. 264.) The Court of Appeal reversed. It held that [t]he administrative exhaustion requirement is satisfied if the allegations of the civil action are within the scope of the EEOC charge, any EEOC investigation actually completed, or any investigation that might reasonably have been expected to grow out of the charge. Thus, the judicial complaint may encompass any discrimination like and reasonably related to the allegations of the EEOC charge. (Id. at pp. 266-67.) Applying the reason in Nazir here, the DFEH charge does not contain a box for failure to accommodate or failure to engage in interactive process. However, Plaintiff selected disability as his protected category. Failure to accommodate and failure to engage fall within the scope of his disability discrimination claims.

Ruling

MARIA COTA, ET AL. VS ABC UNIFIED SCHOOL DISTRICT

Aug 29, 2024 |22STCV13426

Case Number: 22STCV13426 Hearing Date: August 29, 2024 Dept: 55 NATURE OF PROCEEDINGS: Defendant ABC Unified School Districts Motion for Summary Judgment, or in the alternative, Summary Adjudication Defendant ABC Unified School Districts Motion for Summary Judgment, or in the alternative, Summary Adjudication is DENIED. Defendants Request for Judicial Notice is GRANTED. Plaintiffs ObjectionsOVERRULE as to Objection Nos. 1 and 4 and SUSTAIN as to Objection Nos. 2 and 3. Defendants ObjectionsOVERRULE as to Objection Nos. 1-4, 9, 11 and SUSTAIN as to Objection No. 5-8, 10, 12, 13. Plaintiffs Maria Cota, Judi Dixon, Linda Harbin, and Theresa Montenegro are or were employed as Cafeteria Manager IIs with Defendant ABC Unified School District. After Defendant conducted an employment evaluation in 2016, the position of Cafeteria Manager was deemed not a supervisory position. In 2017, Plaintiffs requested and were granted an evaluation of their job description for purposes of obtaining a pay increase. The evaluation found the job duties performed by Plaintiffs were within the responsibility of the Cafeteria Manager II position. On June 23, 2020, Plaintiffs submitted a complaint to Defendant asserting that their current pay range had resulted in denial of equal pay for substantially similar work to various other classifications. Plaintiffs complaint was ultimately rejected and Defendant denied that it had been paying the women working as Cafeteria Manager IIs less than the men who performed substantially similar work in other positions. In addition, in January 2020, Plaintiff Montenegro suffered a torn meniscus in her left knee. Plaintiff Montenegro alleges Defendant discriminated against her based on her disability and refused to reasonably accommodate her disability. On April 22, 2022, Plaintiffs Maria Cota, Judi Dixon, Linda Harbin, and Theresa Montenegro filed this action against Defendant ABC Unified School District. The operative complaint is the First Amended Complaint filed on October 28, 2022. The FAC alleges the following causes of action: (1) violation of the California Equal Pay Act (Labor Code §1197.5, et seq.); (2) sex status discrimination (in violation of Government Code §§12940, et seq.); (3) retaliation in violation of Government code §1102.5; (4) discrimination in violation of Government Code §§12940, et seq.; (5) retaliation in violation of Government Code §§12940, et seq.; (6) failure to provide reasonable accommodation in violation of Government Code §§12940, et seq.; (7) failure to engage in a good-faith interactive process in violation of Government Code §§12940, et seq.; (8) failure to prevent discrimination, harassment and retaliation in violation of Government Code §12940(k); and (9) for declaratory judgment. On January 10, 2024, the Court granted Defendant ABCs motion for judgment on the pleadings of the 1st cause of action for the violation of the California Equal Pay Act (Labor Code §1197.5). On May 1, 2024, the Court granted Defendant ABCs motion for judgment on the pleadings of the 3rd cause of action for retaliation in violation of Government Code §1102.5. On May 9, 2024, Defendant ABC filed the instant Motion for Summary Judgment, or in the alternative, Summary Adjudication. On July 9, 2024, Plaintiffs filed an opposition to the Motion for Summary Judgment or Adjudication. On July 17, 2024, Defendant ABC filed a reply to Plaintiffs opposition. MOTION FOR SUMMARY JUDGMENT I. Legal Standard A motion for summary judgment or adjudication provides courts with a mechanism to cut through the parties pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) It must be granted if all the evidence submitted, and all inferences reasonably deducible from the evidence and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.¿ (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119 [quoting Code Civ. Proc., § 437c, subd. (c)].) Where a defendant seeks summary judgment or adjudication, he must show that either one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action. (Code of Civ. Pros., section 437c, subd. (o)(2).) A defendant may satisfy this burden by showing that the claim cannot be established because of the lack of evidence on some essential element of the claim. (Union Bank v. Superior Court (1995) 31 Cal.App.4th 574, 590.) Once the defendant meets this burden, the burden shifts to plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or defense thereto. (Id.) A party is entitled to summary judgment only if it meets its initial burden of showing there are no triable issues of fact and the moving party is entitled to judgment as a matter of law. This is true even if the opposing party fails to file any opposition. The court's assessment of whether the moving party has carried its burdenand therefore caused a shiftoccurs before the court's evaluation of the opposing party's papers. Therefore, the burden on the motion does not initially shift as a result of what is, or is not, contained in the opposing papers. (Mosley v. Pacific Specialty Insurance Company (2020) 49 Cal.App.5th 417, 434435 [landlords failure to address issue of whether they were aware of their tenants marijuana growing operation was not grounds to grant summary judgment where moving party failed to satisfy its initial burden as to the issue]; Thatcher v. Lucky Stores, Inc. (2000) 79 Cal.App.4th 1081, 1086-1087 [court cannot grant summary judgment based merely on lack of opposition; court must first determine if the moving party has satisfied its burden].) In addition, the evidence and affidavits of the moving party are construed strictly, while those of the opponent are liberally read. (Government Employees Ins. Co. v. Sup. Ct. (2000) 79 Cal.App.4th 95, 100.) All doubts as to the propriety of granting the motion (whether there is any issue of material fact [Code of Civil Procedure] § 437c) are to be resolved in favor of the party opposing the motion (i.e., a denial of summary judgment). (Hamburg v. Wal-Mart Stores, Inc. (2004) 116 Cal.App.4th 497, 502.) II. Second Cause of Action for sex status discrimination A. Defendant fails to establish that Cota, Dixon and Harbins second cause of action for sex status discrimination is time-barred by the one-year deadline under Government code Defendant ABC argues Plaintiffs Cota, Dixon and Harbins second cause of action for sex status discrimination is time barred. Defendant argues a one-year deadline under Government Code §12965 applies to Plaintiffs sex status discrimination claims. Defendant argues Plaintiffs were required to file a complaint for sex status discrimination within one year of their right-to-sue notices. Defendant argues Plaintiff Harbin filed an administrative complaint on November 15, 2019 and Plaintiffs Cota and Dixon filed their administrative complaints on January 3, 2020. Defendant argues Plaintiffs Cota and Dixon received their right-to-sue notices on January 16, 2020 and Plaintiff Harbin received hers on February 24, 2020. Defendant argues this action was not filed until April 2022, more than a year after any of these three Plaintiffs received their right-to-sue notices. In response, Plaintiffs do not dispute that Cota, Dixon and Harbins sex status discrimination claims were filed more than a year after they received their right-to-sue notices. Plaintiffs instead argue that the limitations period was equitably tolled, as there was ongoing discrimination and they were continuing to engage with Defendant in alternative official remedies. Plaintiffs also argue that they obtained a right-to-sue letter on January 31, 2022 and this action was filed in April 2022, less than a year later. Plaintiffs argue the sex status discrimination they suffered before January 31, 2019 were part of continuing violations that dated back to 2007. Defendant previously raised this exact same argument on its motion for judgment on the pleadings heard on January 10, 2024. For the same reasons stated therein, Defendants motion for summary adjudication of Cota, Harbin and Dixons second cause of action based on the one year limitations period under Government Code §12965(c)(1)(C), formerly Government Code §12965(b), must be denied. Just as there can be no partial demurrers or judgment on the pleadings of a part of a cause of action, under CCP §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. Defendant fails to establish based on undisputed facts that the one-year limitations period under Government Code §12965(c)(1)(C) completely disposes of the second cause of action. Plaintiffs obtained a right-to-sue letter from the CRD/DFEH on January 31, 2022 and the action was filed on April 22, 2022, less than a year later. As to those claims encompassed by the January 31, 2022 CRD/DFEH complaint and the right-to-sue letter, the action is therefore undisputedly timely under section 12965(c)(1)(C). Defendant fails to establish that there were no acts of sex status discrimination that fall within the period covered by the January 31, 2022 CRD complaint and right-to-sue letter. Under Government Code §12960(e), after January 1, 2020, an employee has three years to file an administrative complaint. (Gov. C. §12960(e).) Dixon and Cota (Defendants SSUMF No. 2) are still currently employed with Defendant and Harbin only retired on June 10, 2020 (Defendants SSUMF No. 3). The January 31, 2022 CRC Complaint and right-to-sue letter would encompass any acts of discrimination against Dixon and Cota from January 1, 2019 through January 31, 2022 and any acts of discrimination against Harbin from January 1, 2020 through the date of her retirement on June 10, 2020. As explained in the January 10, 2024 ruling, at best, Defendant has demonstrated that the one-year limitations period covers those claims encompassed by Harbins November 2019 DFEH complaint and Cota and Harbins January 3, 2020 DFEH complaints and the corresponding January 16, 2020 and February 24, 2020 right to sue letters. This would still leave the claims timely asserted in the January 31, 2022 right-to-sue letter. The Court cannot grant partial adjudication of some of the wrongful acts alleged in the second cause of action. Summary adjudication is only proper where it would fully adjudicate a cause of action or defense. As to those claims encompassed by the January 16, 2020 and February 24, 2020 right to sue letters, the Court previously rejected Plaintiffs assertion that the January 31, 2022 right-to-sue letter included those lapsed and expired claims based on the continuing violations doctrine. In their opposition to the prior MJP, Plaintiffs failed to cite any authority applying the continuing violations doctrine to the one-year limitations period under section 12965 and they do not cite any such authority in their opposition to the instant Motion for Summary Judgment. Thus, the claims encompassed by the January 16, 2020 and February 24, 2020 right-to-sue letters lapsed and expired when Plaintiffs failed to file a lawsuit within a year of those letters. (Acuna v. San Diego Gas & Electric Co. (2013) 217 Cal.App.4th 1402, 1413.) Section 12965 imposes a strict one year statute of limitations, commencing from the date of the right-to-sue notice by the DFEH and it is a condition on a substantive right rather than a procedural limitation for commencement of an action. (Id.) The deadline under section 12965 causes the right which previously arose and on which a suit could have been maintained, to expire. (Id. (emphasis in the original).) Filing another CBD complaint on January 31, 2022 therefore did not revive those lapsed and expired claims covered by the January 16, 2020 and February 24, 2020 right-to-sue letters. (Id. at 1417 (plaintiff could not revive claims that expired due to her failure to file a complaint within a year of receiving right-to-sue letter by filing a new DFEH complaint many years after racial discrimination took place, nor did continuing violations doctrine apply due to plaintiffs failure to allege continuing racial discrimination or harassment).) With regard to those claims encompassed by the January 16, 2020 and February 24, 2020 right to sue letters, Plaintiffs argue the one-year limitations period was equitably tolled while they pursued internal administrative remedies. Equitable tolling allows a plaintiff who has a choice of legal remedies to pursue one remedy without simultaneously pursuing another remedy. The doctrine relieves the plaintiff claiming employment discrimination from the hardship of pursuing duplicate and possibly unnecessary procedures to enforce the same rights or obtain the same relief. The equitable tolling doctrine generally requires a showing that the plaintiff is seeking an alternate remedy in an established procedural context. Informal negotiations or discussions between an employer and employee do not toll a statute of limitations under the equitable tolling doctrine. (Acuna v. San Diego Gas & Electric Co. (2013) 217 Cal.App.4th 1402, 1416.) Moreover, the equitable tolling doctrine is inapplicable once the employee is on notice that his or her rights had been violated and that her alternative remedies will be unsuccessful. (Id.) After receiving their right to sue letters in January 16, 2020 and February 24, 2020, Plaintiffs did not file a civil action and instead filed Uniform Complaints on February 28, 2020. (Defendants SSUMF No. 18.) Plaintiffs Uniform Complaints were denied by the District on June 23, 2020 and Plaintiffs appeal of that initial decision was denied on October 21, 2020. (Defendants SSUMF No. 21.) Defendant agreed to commission a study into the pay range for the CMII position as compared to other positions identified in the appeal, but there is no evidence that it gave any indication it was open to reconsidering their denial of Plaintiffs Uniform Complaints. (Defendants SSUMF No. 21.) The study was performed in February 2021 and Defendant provided notice of the results to Plaintiffs in a letter dated September 21, 2021. (Plaintiffs SSUMF No. 68.) Defendant acknowledged in the letter that the CMII position had evolved overtime and would be willing to discuss a potential change to the salary range of that position with union representatives. (Plaintiffs SSUMF No. 68.) Based on these undisputed facts, (1) Plaintiffs were engaged in a formal, alternative procedure to attempt to resolve their dispute with Defendant from February 28, 2020 through October 21, 2020; and (2) no reasonable person could have believed that these alternative remedies would have been successful as of October 21, 2020, when Plaintiffs appeal of the denial of the Uniform Complaints was denied. The mere fact that Defendant agreed to commission a pay study would not reasonably signal that the Uniform Complaints procedure would have yielded any result other than another denial of Plaintiffs claims. Likewise, Defendants statement in the September 21, 2021 letter merely expressed a willingness to informally discuss a potential change in the salary range. Such a statement could not reasonably be construed to mean that the Uniform Complaints procedure would be revived or successful. Defendants September 21, 2021 letter expressed a willingness to engage in informal negotiations, which do not support equitable tolling. At best, Plaintiffs establish that the one-year deadline under section 12965 was equitably tolled from February 28, 2020 through October 21, 2020, 7 months and 22 days. Applying tolling, (1) Harbin had to file a complaint in response to the January 16, 2020 right-to-sue notice by September 7, 2020 and (2) Cota and Dixon had to file a complaint in response to the February 24, 2020 right-to-sue letter by October 16, 2020. Thus, even with equitable tolling to the extent supported by Plaintiffs evidence, Plaintiffs failed to timely file a complaint under section 12965 based on the January 16, 2020 and February 24, 2020 right-to-sue letters. However, even if Plaintiffs claims as encompassed by the January 16, 2020 and February 24, 2020 letters are time barred, this would not be grounds to summarily adjudicate the entire second cause of action, which includes those claims covered by the January 31, 2022 right-to-sue letter. Exclusion of Plaintiffs expired claims from recovery may be obtained by way of a motion in limine. Defendants Motion for Summary Adjudication of Plaintiffs Cota, Dixon and Harbins second cause of action for sex status discrimination is denied. B. Defendant fails to establish that Montenegros Sex Discrimination Claim is Time Barred for Failure to Comply with Government Code §12960 FEHA claims are governed by two statutory deadlines: section 12960 and section 12965. (Acuna, supra, 217 Cal.App.4th at 1413.) Prior to January 1, 2020, an employee could not file an administrative complaint more than one year from the date upon which the alleged unlawful practice or refusal to cooperate occurred. (Govt. Code §12960(d) (West 2019).) After January 1, 2020, an administrative complaint could not be filed after expiration of three years from the date upon which the unlawful practice or refusal to cooperate occurred. (Gov. C. §12960(e).) Defendant argues Montenegros sex discrimination cause of action is barred by the limitations period under the 2019 version of section 12960(d). Defendant argues Montenegro failed to file a complaint with the CRD/DFEH within one year of Defendants discriminatory conduct reaching a degree of permanence. According to Defendant, its conduct reached a degree of permanence by November 15, 2019, when Harbin filed her first administrative complaint. Defendant argues Montenegro had until November 14, 2020 to file her first administrative complaint but failed to do so until January 31, 2022. Defendant argues none of the Plaintiffs can argue the continuing violations doctrine for these same reasons. Defendant fails to establish that Plaintiff Montenegros second cause of action is fully and completely barred by the one-year limitations period under the 2019 version of section 12960(d). Defendant admits that Montenegro filed an administrative complaint on January 31, 2022. Even without the continuing violations doctrine, Montenegros January 31, 2022 CBD complaint was sufficient to encompass conduct that fell within the limitations period. After January 1, 2020, an administrative complaint had to be brought within three years from the date on which the unlawful practice or refusal to cooperate occurred. Any claims that had lapsed as of January 1, 2020 would not be revived by the new three-year limitations period. (AB No. 9, §3 (published 10/11/2019.) Any claims based on conduct that occurred from January 1, 2019 onward would be subject to the three-year limitations period. Thus, at the very least, Montenegros second cause of action is based in part on conduct that falls within the limitations period based on her January 31, 2022 CBD complaint, i.e. conduct from January 1, 2019 onward. For this reason, even if Montenegros claims based on conduct prior to January 1, 2019 were time barred, it would not be grounds for summary adjudication. Summary adjudication must fully dispose of a cause of action. (CCP §437c(f)(1).) To the extent Defendant seeks to bar recovery based on conduct outside the limitations period based on Montenegros January 31, 2022 CRD complaint, a motion in limine would be the more appropriate procedure vehicle. Defendant argues Plaintiff Montenegro cannot rely on the continuing violations doctrine to include conduct prior to January 1, 2019, because the conditions had reached a degree of permanence. Essentially, the continuing violation doctrine comes into play when an employee raises a claim based on conduct that occurred in part outside the limitations period. (Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, 812.) For purposes of this motion, whether the continuing violations doctrine applies to include conduct outside the limitations period is immaterial, as it would not fully dispose of the second cause of action. Moreover, Defendant fails to establish as an issue of law that the continuing violations doctrine does not apply to Defendants conduct before January 1, 2019. A violation is a continuing violation if the employer's unlawful actions are (1) sufficiently similar in kindrecognizing, as this case illustrates, that similar kinds of unlawful employer conduct, such as acts of harassment or failures to reasonably accommodate disability, may take a number of different forms; (3) and have not acquired a degree of permanence. (Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, 823.) Permanence&should properly be understood to mean the following: that an employer's statements and actions make clear to a reasonable employee that any further efforts at informal conciliation to obtain reasonable accommodation or end harassment will be futile. (Id.) Defendant claims the condition reached a degree of permanence as of November 2019, when Harbin filed her first administrative complaint. Defendant also relies on Plaintiffs deposition testimony indicating their belief that any informal efforts to resolve the discrimination were futile. (Defendants UMF No. 13.) However, deposition excerpts of Plaintiffs subjective impressions and feelings regarding the futility of the situation do not establish as an issue of law that the Defendants statements and actions made clear to reasonable employee that any further efforts at informal conciliation were futile. Plaintiffs also submit declarations stating that they only believed that Defendant would not rectify the issue internally after the pay study was conducted, and Defendant refused to negotiate a pay increase for CMII during a November 15, 2021 meeting, despite having stated in its September 2021 letter that it was willing to do so. (Plaintiffs Additional Material Facts (AMF) Nos. 68, 69 and Moreover, reasonable minds could differ based on the evidence presented as to whether the alleged sex status discrimination had risen to the level of permanence, i.e. employers statements and actions make clear any further efforts at informal conciliation would be futile. As discussed above, Defendant made statements and engaged in conduct indicative of a willingness to adjust the CMII pay range until September 21, 2021. At the very least, Defendant was giving Plaintiffs mixed messages. A triable issue of fact exists as to whether Defenedants conduct had reached a degree of permanence based on (1) Defendants willingness to conduct another pay study and (2) its September 2021 letter stating that the position had changed and expressing its willingness to negotiate a pay raise for Plaintiffs positions. Defendants motion for summary adjudication of Montenegros second cause of action is denied. III. Montenegros fourth cause of action for disability discrimination A prima face case of disability discrimination under Government Code §12940(a) requires the plaintiff to establish (1) that she has a disability; (2) that she could perform the essential duties of the job with or without reasonable accommodations; and (3) she was subject to an adverse employment action because of the disability. (Sandell v. Taylor (2010) 188 Cal.App.4th 297, 310.) Where a defendant employer moves for summary judgment on a discrimination claim, the initial burden rests with the employer to show that no unlawful discrimination occurred. (Guz v. Bechtel Natl, Inc. (2000) 24 Cal.4th 317, 354-355; see Jones v. R.J. Donovan Correctional Facility (2007) 152 Cal.App.4th 1367, 1379. The burdens and order of proof therefore shift under the McDonnell Douglas test when an employer defendant seeks summary judgment. An employer defendant may meet its initial burden on summary judgment, and require the employee plaintiff to present evidence establishing a triable issue of material fact, by presenting evidence that either negates an element of the employee's prima facie case, or establishes a legitimate nondiscriminatory reason for taking the adverse employment action against the employee. (Swanson v. Morongo Unified School Dist. (2014) 232 Cal.App.4th 954, 966.) Defendant moves for adjudication of Montenegros fourth cause of action for disability discrimination by negating (1) the element of her ability to perform the essential duties of the job with or without reasonable accommodations and (2) the element of an adverse employment action. Defendant argues Montenegro could not safely perform the essential job duties of her position and placement on the rehire list is not an adverse job action. Defendant also moves for adjudication based on a legitimate, nondiscriminatory reason for placing Montenegro on the rehire list. Essential job functions. Essential functions means the fundamental job duties of the employment position the individual with a disability holds or desires. Essential functions does not include the marginal functions of the position. (Gov. C. §12926(f).) A job function may be considered essential for any of several reasons, including, but not limited to, any one or more of the following: (A) The function may be essential because the reason the position exists is to perform that function. (B) The function may be essential because of the limited number of employees available among whom the performance of that job function can be distributed. (C) The function may be highly specialized, so that the incumbent in the position is hired based on expertise or the ability to perform a particular function. (Gov. C. §12926(f)(1). Evidence of whether a particular function is essential includes, but is not limited to, the following: (A) The employer's judgment as to which functions are essential. (B) Written job descriptions prepared before advertising or interviewing applicants for the job. (C) The amount of time spent on the job performing the function. (D) The consequences of not requiring the incumbent to perform the function. (E) The terms of a collective bargaining agreement. (F) The work experiences of past incumbents in the job. (G) The current work experience of incumbents in similar jobs. (Gov. C. §12926(f)(2).) Usually no one listed factor will be dispositive. (Lui v. City and County of San Francisco (2012) 211 Cal.App.4th 962, 971) What qualifies as an essential job function is a question of fact. (Hastings v. Department of Corrections (2003) 110 Cal.App.4th 963, 967, fn 6.) The identification of essential job functions is a highly fact-specific inquiry. (Lui, supra, 211 Cal.App.4th at 971.) Defendant submits evidence that Montenegros essential job duties included lifting from 25 pounds up to 50 pounds, with occasional lifting of up to 75 pounds with assistance, maneuvering up to 140-pound food carts with assistance and frequent standing or walking much of the time with twisting, bending, stopping and squatting. (Defendants SSUMF No. 27.) Defendant relies on written job descriptions of Montenegros position, as well as Montenegros deposition testimony, in which she confirmed the details of the written job description but dispute that the more physically demanding job duties were performed by her on a regular basis. In response, Plaintiff Montenegro disputes that these were her essential job functions. According to Montenegro, she rarely maneuvered food carts and if she did they were usually empty. (Plaintiffs Response to Defendants SSUMF No. 27.) The more physical aspects of the job that required squatting, lifting heavy loads and bending were assigned to Montenegros student employees. (Id.) Montenegro testified that twisting, bending, stooping and squatting was maybe one to two percent of a managers job. (Plaintiffs Compendium of Evidence, Ex. A, 58:15-17.) Plaintiff Montenegros essential job functions were primarily management of her staff, four adult staff members and 15-18 students to perform the physical tasks. (Id. at Ex. 4, ¶23.) Plaintiff Montenegro also counted money out of the register and would clean counters. (Id.) Plaintiff Montenegro kept track of workers hours on spreadsheets. (Id. at ¶24.) Plaintiff testifies that she never moved anything more than 30 pounds and at most she would move 10-15 pounds and there was almost no twisting, bending, stooping or squatting required. (Id.) According to Defendant, Plaintiff could not safely perform her essential job duties based on her medical work restrictions, which were limited overhead/reaching work, no lifting or pulling over 20 pounds, limited stooping and bending, and no lifting over 20 pounds. (Defendants SSUMF No. 32.) However, triable issues of fact remain as to what Plaintiffs essential job duties were and whether they included tasks that would violate her work restrictions. Because Montenegros essential job duties are the cornerstone of whether she could perform them with or without reasonable accommodation, triable issues of fact remain as to that element. Adverse employment action. Defendant argues its placement of Plaintiff on the rehire list was not an adverse employment action. Defendant argues it placed Plaintiff on the rehire list in accordance with Education Code section 45192, which requires placement of an employee who is medically unable to perform his or her duties on the 39-month reemployment list once all leave time has expired. Defendant argues such an action therefore could not be an adverse employment action per Jones v. Los Angeles County Office of Education (2005) 134 Cal.App.4th 983. Jones is distinguishable. Jones involved a petition for writ of mandate, not a civil complaint. The court in Jones determined that respondents findings regarding the petitioners medical inability to perform her job functions were supported by substantial evidence and her placement on the rehire list pursuant to Education Code section 45192 did not violate the law. Plaintiff is suing Defendant in a civil action. Jones is procedurally and factually inapposite. Here, there is a triable issue of fact as to whether Plaintiff was unable to perform her essential job functions and therefore whether she was properly placed on the 39-month rehire list. The issue must be litigated before a jury based on a preponderance of the evidence, unlike a writ of administrative mandate, which must be denied if the respondents findings are supported by substantial evidence, regardless of the strength of the petitioners evidence at the administrative hearing. If in fact Plaintiff was wrongly placed on the 39-month rehire list despite being able to perform her essential job functions, this would qualify as an adverse employment action. There is an adverse employment action if [defendant] has taken an action or engaged in a course or pattern that, taken as a whole, materially and adversely affected the terms, conditions, or privileges of [plaintiff's] employment. (CACI 2509.) In addition, Plaintiff has alleged more than just placement on the rehire list as an adverse employment action. Plaintiff alleges adverse employment actions against her based on denial of accommodation, refusal to engage in the interactive process, failure to prevent discrimination and retaliation, forced leave of absence, refusal to permit Plaintiff to work, and termination. (FAC, ¶57.) Thus, even if placement on the rehire list were not an adverse employment action, Defendant has not have fully negated Plaintiffs allegation of adverse employment action. Legitimate non-discriminatory reason. Defendant also argues it had a legitimate non-discriminatory reason for placing Plaintiff on the 39-month rehire list. Defendant argues it placed Plaintiff on the list, because Plaintiff could not perform her essential job functions with or without reasonable accommodation. Defendants assertion that Plaintiff could not perform essential job functions is supported by admissible evidence, including the written job description for Plaintiffs position, as well as Plaintiffs acknowledgment of that written description and her deposition testimony regarding her job duties (Defendants SSUMF Nos. 27 and 28.) Defendant also submits the doctors note restricting Plaintiffs ability to perform some of those job functions included in the written job description. (Defendants SSUMF No. 32.) Defendant submits Montenegros deposition testimony admitting that there was at least 20% of her job she could not do. (Defendants SSUMF No. 35.) Defendant submits evidence that it met with Plaintiff regarding reasonable accommodations in December 2020 but determined that there was no way to reasonably accommodate her restrictions. (Defendants SSUMF No. 36.) Defendant thereafter had eight interactive process meetings with Montenegro and her attorney. (Defendants SSUMF No. 40.) The qualified medical examiner agreed upon by both Plaintiff and Defendant found she could not kneel, squat or bend more than 110 degrees, and no weigh limit restrictions. (Defendants SSUMF No. 45.) The examiner also found that Plaintiff could not stand more than six hours per day with two 15-minute sitting breaks per two hours of standing, no repetitive squatting, kneeling, crouching and no lifting over 20 pounds. (Id.) The examiner also indicated that Plaintiffs knee condition would progressively deteriorate and she would be a threat to herself and others if she returned to work full duty. (Id. at No. 46.) Defendant satisfies its burden on summary judgment of establishing a legitimate, non-discriminatory reason for placing Plaintiff on the 39-month rehire list. The burden then shifts to Plaintiff Montenegro to present substantial responsive evidence that Defendants reason for placing her on the 39-month rehire list was pretextual. To avoid summary judgment on the second of these two grounds [legitimate nondiscriminatory reason for adverse action], an employee claiming discrimination must offer substantial evidence that the employer's stated nondiscriminatory reason for the adverse action was untrue or pretextual, or evidence the employer acted with a discriminatory animus, or a combination of the two, such that a reasonable trier of fact could conclude the employer engaged in intentional discrimination. (Swanson, supra, 232 Cal.App.4th at 966.) The plaintiff must then have the opportunity to attack the employer's proffered reasons as pretexts for discrimination, or to offer any other evidence of discriminatory motive. In an appropriate case, evidence of dishonest reasons, considered together with the elements of the prima facie case, may permit a finding of prohibited bias. The ultimate burden of persuasion on the issue of actual discrimination remains with the plaintiff. (Guz, supra, 24 Cal.4th at 354-355.) [T]he employee must produce substantial responsive evidence that the employers showing was untrue or pretextual thereby raising at least an inference of discrimination. (Hersant v. Ca. Dept. of Social Services (1997) 57 Cal.App.4th 997, 1004-1005.) 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 that the employer did not act for the asserted non-discriminatory reasons. (Horn v. Cushman & Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 807.) Plaintiff fails to submit any evidence from which a jury could find Defendants stated reason for placing her on the 39-month rehire list pretextual. Plaintiff fails to submit any evidence refuting that she was in fact injured and was subject to work restrictions that prevented her from doing 20 percent of her job, although it is unclear how job was defined in the context of her deposition or the doctors note. Instead, Plaintiff argues Defendant did not genuinely consider her description of her essential job duties. (Plaintiffs Response to Defendants SSUMF No. 41.) Plaintiff also disagrees with the medical examiners conclusions but fails to identify any dishonesty or discriminatory motive in placing her on the 39-month rehire list. (Plaintiffs Response to SSUMF No. 46.) Plaintiff also submits evidence that she was no longer subject to restrictions on her knee and shoulder approximately one year after she was initially examined. (Plaintiffs Response to SSUMF No. 46.) The fact that Plaintiffs condition may have improved a year after being placed on the rehire list does not establish dishonesty or discriminatory animus when she was placed on the list. Defendant therefore establishes as a matter of law that its placement of Plaintiff on the rehire list was the result of a legitimate, nondiscriminatory motive. However, as stated above, this does not fully negate the adverse employment action element, because Plaintiff alleges adverse employment actions beyond merely placing her on the 39-month rehire list and unequal pay. To the extent Defendant seeks to preclude any recovery based on Plaintiffs allegation that its placement of her on the 39-month rehire list was discriminatory, such a request would be more appropriately raised on a motion in limine. Defendants motion for summary adjudication of the fourth cause of action for disability discrimination in violation of FEHA is denied. IV. Plaintiff Montenegros fifth cause of action for retaliation To establish a prima facie case of retaliation, the plaintiff must prove: (1) that she engaged in protected activity, (2) that the employer thereafter subjected her to an adverse employment action, and that (3) a causal connection exists between the protected activity and the adverse employment action. (Yanowitz v. LOreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.) Defendant moves for summary adjudication of the retaliation claim on grounds that placement of Plaintiff on the 39-month rehire list does not qualify as an adverse employment action, nor does any alleged unequal pay, which predated her protected activities. For the same reasons stated in connection with the fourth cause of action, Defendants placement of Plaintiff on the 39-month rehire list was not retaliatory based on the undisputed evidence of a legitimate, nonretaliatory reason for doing so. However, as stated in connection with the fourth cause of action for discrimination, Plaintiff alleges more than just placement on the rehire list and unequal pay as adverse employment actions. Plaintiff Montenegro allegedly suffered the adverse employment actions of denial of accommodation, refusal to engage in the interactive process, failure to prevent discrimination and retaliation, forced leave of absence and refusal to permit Plaintiff to work. Thus, although Defendant has provided a legitimate, nonretaliatory reason for placing Plaintiff on the 39-month rehire list and the unequal pay predated the alleged protected conduct, triable issues of fact remain as to the fifth cause of action for retaliation. V. Plaintiffs sixth cause of action for failure to provide reasonable accommodations The FEHA imposes on employers the duty reasonably to accommodate their employees physical disabilities. (Cuiellette v. City of Los Angeles (2011) 194 Cal.App.4th 757, 766; Govt Code §12940(m).) The elements to a failure to accommodate claim are: (1) the plaintiff has a disability under the FEHA, (2) the plaintiff is qualified (can perform the essential functions with accommodation), and (3) the employer failed to reasonably accommodate the plaintiffs disability. (Hernandez v. Rancho Santiago Cmty. College Dist. (2018) 22 Cal.App.5th 1187, 1193-1194.) Defendant moves for adjudication of the sixth cause of action for failure to accommodate on grounds that Plaintiff Montenegro could not perform the essential functions of her position with accommodations. As discussed in connection with Montenegros fourth cause of action for disability discrimination, triable issues of fact exist as to whether she was able to perform the essential functions of her job with or without accommodations. For the same reasons, triable issues of fact exist as to whether Plaintiff was a qualified person for purposes of her failure to accommodate claim. Defendant also argues it reasonably accommodated Plaintiff by putting her on a leave of absence. (Defendants UMF No. 43.) However, as Plaintiff points out, this assumes that she was unable to perform her essential job duties, which is disputed. Under California law, [w]hen an employee can work with a reasonable accommodation other than a leave of absence, an employer may not require that the employee take a leave of absence. (Cal.Code Regs., tit. 2, § 11068, subd. (c).) (Wallace v. County of Stanislaus (2016) 245 Cal.App.4th 109, 134.) V. Plaintiffs seventh cause of action for failure to engage in good-faith interactive process Government Code section 12940(n) deals with an employers duty to engage in a good faith interactive process with a disabled employee, and unequivocally mandates that employers engage in a timely, good faith, interactive process with the employee or applicant to determine effective reasonable accommodations, if any. The essential elements of a cause of action for failure to engage in an interactive process are: (1) the plaintiff has a disability or medical condition that was known to the employer, (2) the plaintiff requested that her employer make a reasonable accommodation for that disability/medical condition so she would be able to perform the essential job requirements, (3) the plaintiff was willing to participate in an interactive process to determine whether a reasonable accommodation could be made, (4) the employer failed to participate in a timely, good faith interactive process with the plaintiff, (5) the plaintiff was harmed, and (6) the employer's failure to engage in a good faith interactive process was a substantial factor in causing the plaintiff's harm. (CACI No. 2546; Gelfo v. Lockheed (2006) 140 Cal.App.4th 34, 61-62.) Defendant argues that based on the undisputed evidence, it engaged in a good faith interactive process to with Plaintiff to determine whether a reasonable accommodation could be made, because (1) it held nine meetings with Plaintiff over a year; (2) Montenegro agreed that she was engaged in the interactive process while it was happening; and (3) the purpose of these meetings was to determine if she could return to work to perform her essential job functions with reasonable accommodation. (Defendants UMF Nos. 34, 40-42.) Defendant argues it is Plaintiff who has failed to continue to engage in the good faith, interactive process, because she has not made any effort to return to Defendant or requested further meetings and has expressed that she does not want to return to work for Defendant. (Defendants UMF Nos. 50-55.) Defendants evidence negates Plaintiffs allegation that Defendant refused to engage in a good-faith interactive process to determine whether Plaintiff could perform her essential job functions with accommodations. The number of meetings held, as well as the extensive examination of Plaintiffs medical records, such as the doctors note and the examiners medical report on Plaintiffs condition, indicate a good faith attempt to understand Plaintiffs condition and what her limitations were. However, Plaintiff raises a triable issue of fact as to Defendants good faith based on its refusal to consider her actual job duties. According to Plaintiff, despite holding eight separate interactive meetings with her for the purpose of determining her essential job duties, her medical restrictions and whether reasonable accommodations for those restrictions could be provided, Defendant only considered the listed job duties in the written description of the position. (Plaintiffs Compendium of Evidence, Ex. 4, ¶28.) Plaintiff testifies that Defendant did not listen to her version of what her job duties actually were and whether she could perform them without restrictions. (Id. at ¶29.) The good faith interactive process is intended to allow a particular employee with a disability to perform the essential functions of a job that employee holds or desires. (Nadaf-Raharov v. Neiman Marcus Group, Inc. (2008) 166 Cal.App.4th 952, 973, fn 9 (citing 29 C.F.R. Pt. 1630, App., §1630.9 and acknowledging that FEHAs reasonable accommodation requirement based on American with Disabilities Act (ADA).) With regard to assessment of the job, individual assessment means analyzing the actual job duties and determining the true purpose or object of the job. (Id. (quoting 29 C.F.R. Pt. 1630, App. §1630.9s guidance on interactive process under ADA).) Plaintiffs testimony raises a triable issue of fact as to whether Defendant engaged in the interactive process in good faith. Defendants motion for summary adjudication of the seventh cause of action for failure to engage in good faith, interactive process is denied. Triable issues of fact remain as to whether Defendant participated in good faith. VI. Plaintiffs eighth cause of action for failure to prevent discrimination and retaliation in violation of Government Code §12940(k) Defendant brief on this issue is limited to a single sentence: For the same reasons set forth in Issue No. 1, Plaintiffs failure to prevent claim is time-barred. The Court denies Defendants request for adjudication of the second cause of action for sex status discrimination based on statute of limitations, labeled by Defendant as Issue No. 1. For these same reasons, the Court denies the request to adjudicate the eighth cause of action for failure to prevent discrimination and retaliation. VII. Plaintiffs ninth cause of action for declaratory judgment Any person&who desires a declaration of his or her rights or duties with respect to another&may, in cases of actual controversy relating to the legal rights and duties of the respective parties, bring an original action or cross-complaint in the superior court for a declaration of his or her rights and duties in the premises&. (CCP §1060.) Declaratory relief is improper where the rights of the complaining party have crystallized into a cause of action for past wrongs, all relationship between the parties has ceased to exist and there is no conduct of the parties subject to regulation by the court. (Osseous Technologies of America, Inc. v. DiscoveryOrtho Partners, LLC (2010) 191 Cal.App.4th 357, 376.) However, as explained in Osseous, this does not meant that declaratory relief is improper in every case where a breach of contract alleged. The Court of Appeals created a conceptual framework classifying declaratory relief into three types for the purpose of determining whether the trial court erred by dismissing a declaratory relief cause of action. In a Type 1 declaratory relief cause of action, the complaint alleges only a past breach of contract, a breach of contract remedy is available, and declaratory relief is unnecessary to guide future conduct. (Id. at pp. 365, 366368.) The court must dismiss the Type 1 type of declaratory relief claims. (Id.) A Type 2 declaratory relief cause of action alleges an actual and ongoing controversy, such as a continuing contractual relationship, and future consequences that depend on the court's interpretation of the contract. (Id. at pp. 369371.) A trial court must not dismiss a Type 2 declaratory relief cause of action. (Id. at p. 365.) A Type 3 declaratory relief cause of action alleges a current controversy over a past breach of contract and the potential a declaration of the parties' rights under a contract might be necessary to guide the parties' future conduct in a continuing contractual relationship. (Id. at pp. 374376.) A trial court has discretion to dismiss a Type 3 declaratory relief cause of action. (Id. at p. 365.) Defendant fails to cite any authority holding that declaratory relief may not be sought in a FEHA action or for disputes over parties rights and obligations with respect to one another under FEHA. For example, declaratory relief may be appropriate in FEHA cases where there is proof of an employment decision substantially motivated by discrimination. (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 234.) Plaintiffs also cite to Harris v. City of Santa Monica in their declaratory relief claim as grounds for the requested relief. (FAC, ¶100.) Defendant argues the complaint also alleges an accrued wrong, with no threat of any future invasion of rights or violations. Defendant argues Plaintiffs declaratory relief claim is directed solely to actions taken by Defendant in the past. However, Plaintiffs declaratory relief claim seeks declaratory relief for the purpose of prospective discriminatory polices and practices and to make Defendant aware of its obligation not to engage in discriminatory practices and legal violations in the future. (FAC, ¶100-101.) Defendant fails to establish grounds to adjudicate the declaratory relief claim. Defendants request to adjudicate the declaratory relief claim is denied. VII. Defendants improper causation arguments on reply On reply, Defendant argues for the first time that Plaintiffs cannot establish causation as to the fourth and fifth causes of action. Defendants causation arguments are disregarded. Defendant may not raise new arguments or submit new evidence for the first time on reply. (San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A. (2002) 102 Cal.App.4th 308, 316.) VIII. Conclusion Defendants Motion for Summary Judgment, or in the alternative, Summary Adjudication is DENIED.

Ruling

Salvador Villanueva, et al vs La Rosa Tortilla Factory, Inc., a California corporation

Aug 26, 2024 |22CV00226

22CV00226VILLANUEVA v. LA ROSA TORTILLA FACTORY (UNOPPOSED) MOTION FOR PRELIMINARY APPROVAL OF CLASS AND PAGA ACTION SETTLEMENT The motion is granted. The class notice and exclusion form are appropriate. The court finds that the settlement falls within a range of reasonableness and ispresumptively valid; appears to be a product of serious, informed and non-collusive negotiations;and has no obvious deficiencies. The court grants preliminary approval of the settlement;conditionally certifies the class; approves the class notice as to form and content; and adopts theProposed Order Granting Preliminary Approval of Class Action Settlement submitted by classcounsel. Counsel should appear on Zoom to set a fairness hearing on the question of whether theproposed class action settlement, class counsel’s fees and expenses, the class representative’senhancement award, and the administrator’s fees and costs should be finally approved as fair,reasonable and adequate as to the members of the settlement class.Notice to prevailing parties: Local Rule 2.10.01 requires you to submit a proposed formal orderincorporating, verbatim, the language of any tentative ruling – or attaching and incorporating thetentative by reference - or an order consistent with the announced ruling of the Court, inaccordance with California Rule of Court 3.1312. Such proposed order is required even if theprevailing party submitted a proposed order prior to the hearing (unless the tentative issimply to “grant”). Failure to comply with Local Rule 2.10.01 may result in the imposition ofsanctions following an order to show cause hearing, if a proposed order is not timely filed.

Ruling

NORIEGA vs AGUILAR

Aug 27, 2024 |CVRI2305077

Motion to Set Aside on 1st AmendedCVRI2305077 NORIEGA vs AGUILAR Complaint for Other Employment (Over$25,000) of LESLIE NORIEGATentative Ruling:An application for mandatory relief based on an attorney affidavit of fault must be made “no morethan six months after entry of judgment.” (C.C.P. §473(b).) Unlike the excusable neglectprovisions, there need be no showing of diligence in seeking relief short of the six-month timelimit. (Metropolitan Service Corp. v. Casa de Palms, Ltd. (1995) 31 Cal.App.4th 1481, 1488.) Thesix-month period starts with entry of the default judgment, not the default. (Sugasawara v.Newland (1994) 27 Cal.App.4th 294, 297.) In the instant matter, the request for entry of defaultwas granted on 3/22/2024. There has been no default judgment filed in this case.The motion must state that it seeks mandatory relief under C.C.P. §473; if the motion refers onlyto discretionary relief, the court need not set aside the default even if the motion is accompaniedby an affidavit indicating the attorney was at fault. (Luri v. Greenwald (2003) 107 Cal.App.4th1119, 1125.) The motion must also be accompanied by a copy of the answer or other pleadingproposed to be filed. (C.C.P. §473(b).) Here, Counsel for Defendants states at page 4, lines 9-14 that “Code of Civil Procedure section 473, subsection (b) provides that a court shall "wheneveran application for relief is made ...and is accompanied by an attorney's sworn affidavit attestingto his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default enteredby the clerk against his or her client, and which will result in entry of a default judgment, or (2)resulting default judgment or dismissal entered against his or her client”Relief must be granted even where the default resulted from inexcusable neglect by defendant'sattorney, “so long as the attorney affidavit of fault shows the error was the fault of the attorneyrather than the client.” (Jimenez v. Chavez (2023) 97 Cal.App.5th 50, 57.) An admission of faultthat does not include an explanation of the reason for the fault may still be sufficient (Martin Potts& Associates, Inc. v. Corsair, LLC (2016) 244 Cal.App.4th 432, 442-443), but because the courtmay deny relief if it finds the default or dismissal “was not in fact caused by the attorney’s mistake,inadvertence, surprise, or neglect” (Jimenez, 97 Cal.App.5th 50, 57), the explanation of thereasons “can serve as a causation testing device” in determining whether the neglect was causedby the client or the attorney. (Martin Potts & Associates, 244 Cal.App.4th 432, 442 [internalquotation marks omitted].) Here Counsel states at page 7, lines 1-7 “I acknowledge that I did notfile a timely responsive pleading on behalf of the Giovanny Defendants. Due to my neglect inhandling this matter, the Giovanny Defendants were defaulted in this action. The GiovannyDefendants were unaware of my failure to file a responsive pleading on time on their behalf.” TheCourt finds that the entry of default was due solely to Counsel’s neglect.When relief is granted based on an attorney affidavit of fault, sanctions of reasonablecompensatory legal fees and cost” to the opposing counsel or parties are mandatory. [C.C.P.§473(b).) The court may also impose sanctions against the culpable attorney of monetarysanctions up to $1,000 to opposing parties, $1,000 to the State Bar Client Security Fund, or “otherrelief as is appropriate.” (C.C.P. §473(c)(1)(A), (B) and (C).) Plaintiff’s counsel, Mr. Reyes isrequesting sanctions in the amount of $3,150 in attorney fees plus $180 in cost. The Court findsthat sanctions are appropriate under the circ*mstances and awards $950 in sanctions payable toPlaintiff plus $180 for reimbursem*nt of cost for a total sanction payable to Plaintiff in the amountof $1,130 payable forthwith.

Ruling

ERBY vs WEBER DISTRIBUTION, LLC DBA WEBER LOGISTICS

Aug 26, 2024 |CVRI2402018

ERBY VS WEBER MOTION TO COMPELCVRI2402018 DISTRIBUTION, LLC DBA ARBITRATION AND DISMISSWEBER LOGISTICS PLAINTIFF'S CLASS ACTIONTentative Ruling: Appearances requested to discuss the applicability of the transportation workerexception to the FAA and whether plaintiff should be permitted to take discovery on the mattersin the web site (because the Court cannot take judicial notice of the web site).

Ruling

JUSTINE AMANDA CRUZ ECHAVEZ VS CALIFORNIA INSTITUTE OF THE ARTS

Aug 28, 2024 |23CHCV01130

Case Number: 23CHCV01130 Hearing Date: August 28, 2024 Dept: F43 Justine Amanda Cruz Echavez vs. California Institute of the Arts Trial Date: 5-5-25 MOTION TO COMPEL THE DEPOSITION OF DEFENDANTS PERSON MOST QUALIFIED MOVING PARTY: Plaintiff Justine Amanda Cruz Echavez RESPONDING PARTY: Defendant California Institute of the Arts RELIEF REQUESTED Plaintiff requests that the Court order Defendant to produce its PMQ for a deposition. RULING: Motion is continued until after the scheduled deposition date. SUMMARY OF ACTION This is an employment law case filed by Plaintiff Justine Amanda Cruz Echavez (Plaintiff) against Defendant California Institute of the Arts (Defendant). Plaintiff, in deposing Defendants Person Most Qualified (PMQ), is seeking information related to Defendants policies regarding discrimination, retaliation, and intermittent leave, as well as Defendants termination of Plaintiff and its efforts to engage in the interactive process. Over the course of several months, Plaintiff and Defendant met and conferred in an attempt to find a date for deposition that would work for the parties. From January to April 2024, Defendants counsel refused to provide dates for deposition. The parties finally agreed to the deposition of Plaintiffs former supervisor on April 15, 2024, and Defendants PMQ on April 24, 2024. Defendants counsel unilaterally cancelled both depositions but proceeded to finish Plaintiffs deposition on April 17, 2024. Defendants counsel claimed that he cancelled the deposition dates due to a family members illness. Afterwards, on April 30, Plaintiffs counsel again met and conferred with Defendants counsel to find a new date for the deposition, but Defendant refused to provide any dates. Plaintiff filed this motion on May 13, 2024. Plaintiff argues that this motion is proper, that Plaintiff is entitled to discovery of relevant information, that Defendant waived objections to Plaintiffs PMQ categories, and that monetary sanctions should be assessed in the amount of $12,575. On July 18, 2024, Defendant filed its opposition. Defendants opposition indicates that Defendant now has new counsel who has already agreed to a deposition date of October 8, 2024, for the PMQ deposition. Defendant argues that Plaintiffs motion is moot given that there is now a scheduled date for the deposition of the PMQ. Defendant also argues that sanctions would be unjust given the circ*mstances. The prior delay in finding a deposition was due to former counsel changing firms and dealing with the health issues of a family member. Plaintiff argues in her reply that Defendant should still be ordered to produce a PMQ due to Defendants previous failures to appear. Plaintiff also argues that sanctions should still be assessed against Defendant and Defendants attorneys, though the Court will note that it appears that the reasons for delay were due to the actions of Defendants previous attorneys, not Defendants current attorneys. The Court will not decide the motion on the merits at this time. New counsel has scheduled a PMQ deposition for October 8, 2024, and should be given a chance to appear at that deposition. Should Defendant fail to appear for the October 8 deposition, then the Court will revisit this motion and the issue of sanctions. Plaintiffs motion to compel deposition is continued until after the scheduled October 8, 2024, deposition.

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