DEPARTMENT C33 LAW AND MOTION

 Judge James L. Crandall

 

These are the Court’s tentative rulings.  They may become orders if the parties do not appear at the hearing.  The Court also might make a different order at the hearing.  (Lewis v. Fletcher Jones Motor Cars, Inc. (2012) 205 Cal.App.4th 436, 442, fn. 1.) 

 

If counsel wish to submit on the tentative ruling, please call the Court Clerk (657-622-5233) to notify the Court that all parties are submitting on the tentative and no appearance will be necessary. The tentative will then become the final ruling. If no one appears at the hearing the tentative will be the final ruling. Either side may appear and argue the Court’s tentative ruling.

 

PREVAILING PARTY SHALL GIVE NOTICE OF THE FINAL RULING TO EACH PARTY and PREPARE AN ORDER/JUDGMENT FOR THE COURT’S SIGNATURE IF THE MOTION IS DISPOSITIVE OF A PARTY OR THE CASE.

 

All appearances are now through Zoom

 

APPEARANCES:  Department C33 is currently participating in the Online Check-in/Zoom Pilot Program pursuant to Administrative Order No. 21/07 for non-evidentiary hearings, including law and motion.  All counsel and self-represented parties appearing for such hearings must check-in online through the Court's civil video appearance website at https://www.occourts.org/media-relations/civil.html prior to the commencement of their hearing.  No in-person appearances will be permitted without a further order of the court upon a showing of good cause.  Once the online check-in is completed, counsel and self-represented parties will be prompted to join the courtroom’s Zoom hearing session. Participants will initially be directed to a virtual waiting room while the clerk provides access to the video hearing. Check-in instructions and instructional video are available on the court’s website.

 

PUBLIC ACCESS:  In those instances where proceedings will be conducted only by remote video and/or audio, access will be provided to interested parties by contacting the courtroom clerk, preferably 24 hours in advance. No filming, broadcasting, photography, or electronic recording is permitted of the video session pursuant to California Rules of Court, rule 1.150 and Orange County Superior Court rule 180.

 

You must provide your own remote court reporter (unless you have a fee waiver and request one in advance).

 

 

TENTATIVE RULINGS ON LAW & MOTION MATTERS

 

Date: September 23, 2021 - 10:00 a.m. on ZOOM only

 

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Case Name

Tentative

1

Singh vs. KIA Motors America, Inc.

 

30-2019-01091423

1. Demurrer to First Amended Complaint

2. Motion to Strike Portions of Complaint

 

Defendant Kia Motors America, Inc.’s demurrer to the fifth and sixth causes of action is SUSTAINED without leave to amend.

1. General Authority

“A demurrer tests the pleading alone, and not the evidence or the facts alleged. . . . To the extent there are factual issues in dispute, however,

this court must assume the truth not only of all facts properly pled, but also of those facts that may be implied or inferred from those expressly alleged in the complaint. [Citations.]” (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.)

 Code of Civil Procedure section 452, states, “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.”

Perez v. Golden Empire Transportation Transit District (2012) 209 Cal.App.4th 1228, 1238, provides, “This rule of liberal construction means that the reviewing court draws inferences favorable to the plaintiff, not the defendant. [Citations.]” C.A. v. William S. Hart Union High School District (C.A.) (2012) 53 Cal.4th 861, 872, provides, “To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged. [Citation.]”

2. Fifth Cause of Action for Breach of Implied Warranty of Merchantability (Civil Code §§ 1791.1, 1794)

The four-year statute of limitations under California Uniform Commercial Code § 2725 applies to claims under the Song-Beverly Act, including the action for breach of warranty. (Kreiger v. Nick Alexander Imports, Inc. (1991) 234 Cal.App.3d 205, 213.)

 An action for breach of warranty occurs when tender of delivery is made. (Cal. U. Com. Code § 2725(2).)

Plaintiffs argue “that the ‘future performance’ exception and delayed discovery rule apply to Plaintiff’s breach of implied warranty of merchantability and render Plaintiff’s claim timely.” (Opposition p. 13:10-12.)

In Cardinal Health 301, Inc. v. Tyco Electronics Corp. (2008) 169 Cal.App.4th 116, 130 (Cardinal) the court of appeal stated: “The scope of the ‘future performance’ exception has been the subject of numerous, and sometimes conflicting, decisions throughout the country… But the majority view is that the exception must be narrowly construed, and that it applies only when the seller has expressly agreed to warrant its product for a specific and defined period of time.” “Because an implied warranty is one that arises by operation of law rather than by an express agreement of the parties, courts have consistently held it is not a warranty that ‘explicitly extends to future performance of the goods.’” (Cardinal Health 301, supra, 169 Cal.App.4th at 134.)

Here, the tender of delivery occurred on 9/10/13. (First Amended Complaint ¶ 1) The 4 year statute of limitations expired on 9/10/17. Plaintiff did not file suit until 8/19/19.

Cardinal is controlling. Consequently, this claim accrued upon “tender of delivery” and delayed discovery does not apply to this claim. Thus, Plaintiff’s cause of action is time-barred absent tolling.

Here, there are insufficient facts in the First Amended Complaint to establish an exception based on American Pipe.

Based on the foregoing, the statute of limitations for the instant matter ran on 9/10/17, and Plaintiffs’ implied warranty claim is untimely.

Regarding leave to amend, “the burden is on the Plaintiff to show the manner in which she may amend, and how the amendment will change the legal effect of the pleading.” (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349). Plaintiffs have not met this burden.

Accordingly, the demurrer to the fifth cause of action is SUSTAINED without leave to amend.

3. Sixth Cause of Action for Fraudulent Omission

Plaintiffs’ fraud by omission cause of action is barred by the economic loss rule. Under California’s economic loss rule, “where a purchaser’s expectations in a sale are frustrated because the product [she] bought is not working properly, her she has suffered only economic losses.” (Robinson Helicopter, Co., Inc. v. Dana Corp. (2004) 34 Cal.4th 979, 988 (internal quotation marks and citations omitted).

Economic loss consists of “damages for inadequate value, costs of repair and replacement of the defective product or consequent loss of profits—without any claim of personal injury or damages to other property.” (Id. (internal quotation marks and citations omitted)). “The economic loss rule requires a purchaser to recover in contract for purely economic loss due to disappointed expectations, unless [she] can demonstrate harm above and beyond a broken contractual promise.” (Id.)

Here, the alleged fraud by omission resulted in purely economic loss. Unlike in Robinson, where the provision of “false certificates of conformance” which resulted in was readily found to be “independent” from the “contract loss” of “nonconforming clutches”; here, the alleged failure of Defendant to disclose the “engine defects” completely overlaps what is sought by a contract/warranty remedy—damages for the “nonconforming engine.”

As a result, the demurrer to the sixth cause of action is SUSTAINED without leave to amend on the ground that it is barred by the economic loss rule.

Defendant to give notice.

2. MOTION TO STRIKE:

Defendant Kia Motors America, Inc.’s Motion to Strike Plaintiffs’ allegations regarding punitive damages is GRANTED without leave to amend, but the motion to strike DENIED as to Plaintiffs’ allegations regarding civil penalties. The Request to strike the fifth and sixth causes of action in their entirety is MOOT.

1. Fifth and Sixth Causes of Action

Defendants seek an order striking Plaintiffs’ Fifth Cause of Action for Breach of Implied Warranty under the Song-Beverly Consumer Warranty Act, and Sixth Cause of Action for Fraud by Omission, in their entirety. Given the ruling on the demurrer, this portion of the motion is MOOT.

2. Punitive Damages

Given the ruling sustaining the demurrer to the sixth cause of action, the only remaining causes of action are based on the Song-Beverly Act. Punitive damages are not available under the Song-Beverly Act. (See Civ. Code § 1794 [damages are limited to reimbursement, replacement of vehicle, and a civil penalty not to exceed 2 times plaintiff’s actual damages].)

Plaintiffs fail to provide any mandatory authority to the contrary.

Thus, the motion to strike punitive damages is GRANTED. page 27, line 17, of Plaintiffs’ prayer is hereby stricken.

3. Civil Penalties

Civil Code § 1794 states that:

(b) Any buyer of consumer goods who is damaged by a failure to comply with any obligation under this chapter or under an implied or express warranty or service contract may bring an action for the recovery of damages and other legal and equitable relief.

(c) If the buyer establishes that the failure to comply was willful, the judgment may include, in addition to the amounts recovered under subdivision (a), a civil penalty which shall not exceed two times the amount of actual damages.

The First Amended Complaint alleges that Defendant failed to comply with an obligation under Civ. Code §§ 1790 et seq., in other words “this chapter.” It further alleges that such failure to comply was willful.

Therefore, Plaintiffs state sufficient facts to support a request for civil penalties. Thus, the request to strike page 20, lines 16 through 21 (¶ 84), page 21, lines 21 through 25 (¶ 91), page 22, lines 11 – 16 (¶ 94), and page 23, lines 4 – 8 (¶ 98) is DENIED.

Moreover, the request to strike page 1, lines 14 through 16 is DENIED, and the request to strike page 6, lines 20 through 22 is GRANTED.

Defendant to give notice.

 

Future Hearings:

 

Jury Trial: 10/18/21

 

2

Brown vs. Hoag Hospital

 

30-2020-01176159

1. Demurrer to First Amended Complaint  

Defendant Luis Chanes, M.D.’s demurrer to the second cause of action for willful misconduct alleged by plaintiff Andrew C. Brown in his First Amended Complaint (“FAC”) is SUSTAINED, with 20 days leave to amend.

Defendant moves pursuant to Code of Civil Procedure Section 430.10, subdivision (e).

“Willful misconduct is not a separate tort from negligence, but rather ‘an aggravated form of negligence, differing in quality rather than degree from ordinary lack of care.” (Doe v. United States Youth Soccer Association, Inc. (2017) 8 Cal.App.5th 1118, 1140 (Doe).)

 “In order to establish willful misconduct, a plaintiff must prove not only the elements of a negligence cause of action, that is, duty, breach of duty, causation, and damage, but also: (1) actual or constructive knowledge of the peril to be apprehended, (2) actual or constructive knowledge that injury is a probable, as opposed to a possible, result of the danger, and (3) conscious failure to act to avoid the peril.” (Id., citing Berkley v. Dowds (2007) 152 Cal.App.4th 518, 528). “[W]illful misconduct is not marked by a mere absence of care. Rather, it ‘involves a more positive intent actually to harm another or to do an act with a positive, active and absolute disregard of its consequences.” (Doe, supra, 8 Cal.App.5th at 1140.)

In support of the willful misconduct claim, Plaintiff alleges that Plaintiff’s Medical Records stated that Defendant will “follow-up with the patient on Monday” but Defendant never followed up with him. (FAC, ¶ 16.) Instead, Plaintiff alleges that he followed Hoag’s After Visit Summary Instructions which stated that Plaintiff should “Follow up with Luis A. Chanes, MD in 2 days (around 10/2019)” if symptoms worsen and called Defendant. (FAC, ¶ 17.) Plaintiff called Defendant on October 1, 2019 and again on October 4, 2019, but Defendant failed to return Plaintiff’s calls. (FAC, ¶¶ 17-20.)

Based on this, Plaintiff alleges that Defendant “purposefully and intentionally acted in conscious disregard of serious injury, PLAINTIFF’S rights, PLAINTIFF’S safety and breached with GROSS NEGLIGENCE the aforesaid duties of care by FAILING to follow up with PLAINTIFF and WORSE, REFUSING and NEVER returning PLAINTIFF’S telephone messages, which had CHANES done, MAY have revealed CHANES’S previous MIS-DIAGNOSIS of PLAINTIFF’S emergency.” (FAC, ¶61.)

The FAC further alleges that: “Chanes CHOOSING, not to return Plaintiff's phone call(s) not once, but twice represents an INTENTIONAL FAILURE as opposed to an unintentional one . . .” (FAC, ¶61.)

These allegations still fail to sufficiently allege that Defendant had “actual or constructive knowledge of the peril to be apprehended” and “actual or constructive knowledge that injury is a probable, as opposed to a possible, result of the danger.” (Doe, supra, 8 Cal.App.5th at 1140.)

Therefore, Plaintiff has not sufficiently alleged a cause of action for willful misconduct and the demurrer is SUSTAINED.

However, the Court is inclined to give Plaintiff one last opportunity to amend the Complaint.

2. Motion to Strike Portions of Complaint

Based on the ruling on the accompanying Demurrer, Defendant Luis Chanes, M.D.’s Motion to Strike is MOOT.

Future Hearings:

MSC: 2/3/23

Jury Trial: 3/6/23

 

3

Eagle Community Credit Union vs. Cruse

 

30-2020-01181913

Demurrer to Cross-Complaint     

 

The unopposed demurrer of Cross-Defendant Eagle Community Credit Union to the Cross-Complaint of Christine A. Collins f/k/a Christine A. La Peer is SUSTAINED with leave to amend.

This case was initiated by a complaint in interpleader filed by Plaintiff/Cross-Defendant Eagle Community Credit Union under Code of Civil Procedure section 386(b), which provides in part, “Any person, firm, corporation, association or other entity against whom double or multiple claims are made, or may be made, by two or more persons which are such that they may give rise to double or multiple liability, may bring an action against the claimants to compel them to interplead and litigate their several claims.”

The complaint in interpleader arises from an account opened at Eagle Community Credit Union by Michael Hooton, now deceased, which is the subject of a dispute between the named beneficiary on the account (Defendant Collins fka Lapeer) and Mr. Hooton’s wife (Defendant Cruse).

On 4/29/21, Defendant/Cross-Complainant Christine A. Collins fka Christine A. La Peer filed a Cross-Complaint against the Eagle Community Credit Union alleging nine causes of action including (1) fraud and deceit, (2) constructive trust, (3) breach of fiduciary duty, (4) conversion, (5) unjust enrichment, (6) IIED, (7) NIED, (8) declaratory relief, and (9) injunctive relief.

The Cross-Complaint against the Credit Union is based on the Credit Union’s refusal to provide the assets in Mr. Hooton’s account to Cross-Complainant Collins.

State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 612–613 holds,

“An interpleader action is traditionally viewed as two suits: one between the stakeholder and the claimants to determine the stakeholder's right to interplead, and the other among the claimants to determine who shall receive the funds interpleaded. (Conner v. Bank of Bakersfield (1917) 174 Cal. 400, 402 [163 P. 353]; Lincoln Nat. Life Ins. Co. v. Mitchell (1974) 41 Cal.App.3d 16, 19 [115 Cal.Rptr. 723].) As against the stakeholder, claimants may raise only matters which go to whether the suit is properly one for interpleader, i.e., whether the elements of an interpleader action are present. (Conner v. Bank of Bakersfield, supra, 174 Cal. at p. 403; 4 Witkin, Cal. Procedure (4th ed. 1997) Pleadings, § 228, pp. 291-292.)”

Here, the Cross-Complaint does not allege matters related to “whether the suit is properly one for interpleader.” Rather, it seeks to assert nine causes of action against Cross-Defendant based on Cross-Defendant’s failure to resolve the dispute over the decedent’s account in Cross-Complainant’s favor.

Therefore, under State Farm & Casualty Co., supra, 90 Cal.App.4th at 612-613, the allegations in the Cross-Complaint against Eagle Community Credit Union cannot be raised in this interpleader action and the demurrer is sustained with leave to amend.

Cross-Complainant may file an amended cross-complaint within 20 days of this order.

Future Hearings:

Motion for Sanctions: 1/06/22

MSC: 8/26/22

Jury Trial: 9/26/22

 

4

Henry vs. Sabo

 

30-2020-01162954

Off calendar

 

5

Marshall vs. Andrade

 

30-2020-01127459

1.Motion to Compel Production

 

Plaintiff Walter Marshall’s Motion to Compel Further Production is DENIED.

Defendant Danny Letner, Inc.’s request for sanctions is granted in the amount of $920.00.

Plaintiff contends that Defendant has withheld responsive documents in response to Plaintiff’s requests for production, set one, nos. 1, 3, and 4.

 Request no. 1 seeks Defendant’s employee Edwin Andrade’s “complete personnel file.”

 Request no. 3 seeks Andrade’s “attendance record” including timecards and time sheets.

Request no. 4 seeks documents relating to business related travel expenses and/or mileage reimbursements to Andrade.

Code of Civil Procedure section 2031.210(a) states:

“(a) The party to whom a demand for inspection, copying, testing, or sampling has been directed shall respond separately to each item or category of item by any of the following:

(1) A statement that the party will comply with the particular demand for inspection, copying, testing, or sampling by the date set for the inspection, copying, testing, or sampling pursuant to paragraph (2) of subdivision (c) of Section 2031.030 and any related activities.

(2) A representation that the party lacks the ability to comply with the demand for inspection, copying, testing, or sampling of a particular item or category of item.

(3) An objection to the particular demand for inspection, copying, testing, or sampling.”

Code of Civil Procedure section 2031.220 provides:

 “A statement that the party to whom a demand for inspection, copying, testing, or sampling has been directed will comply with the particular demand shall state that the production, inspection, copying, testing, or sampling, and related activity demanded, will be allowed either in whole or in part, and that all documents or things in the demanded category that are in the possession, custody, or control of that party and to which no objection is being made will be included in the production.”

Code of Civil Procedure section 2031.230 provides, “A representation of inability to comply with the particular demand for inspection, copying, testing, or sampling shall affirm that a diligent search and a reasonable inquiry has been made in an effort to comply with that demand. This statement shall also specify whether the inability to comply is because the particular item or category has never existed, has been destroyed, has been lost, misplaced, or stolen, or has never been, or is no longer, in the possession, custody, or control of the responding party. The statement shall set forth the name and address of any natural person or organization known or believed by that party to have possession, custody, or control of that item or category of item.”

Here, Defendant’s statements of compliance in response to requests nos. 1 and 3 clearly indicate that Defendant “will comply” with requests for production 1 and 3.

Defendant has produced documents which it asserts constitute Andrade’s entire employee file and payroll records, and Defendant states it was never in possession of Andrade’s timesheets.

Plaintiff contends that more documents likely exist, but Plaintiff has not shown that Defendant has failed to produce responsive documents. Therefore, the motion is denied as to requests for production nos. 1 and 3.

Defendant’s response to request no. 4 states Defendant is unable to comply despite a diligent search and inquiry. Plaintiff contends that responsive documents should exist, but Plaintiff has not shown that Defendant is in possession of responsive documents. Therefore, the motion is denied as to request for production no. 4.

The Code of Civil Procedure provides that the Court “shall impose a monetary sanction” against the party who unsuccessfully makes or opposes a motion to compel compliance with a demand for production or a motion to compel further responses to a demand for production, “unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Code Civ. Proc. §§ 2031.310(h), 2031.320(b).)

Here, Plaintiff did not act with substantial justification in bringing the motion. Defendant provided adequate statements of compliance or inability to comply and offered to provide more information on the subjects of the requests via interrogatories or the deposition of Defendant’s employee.

Rather than engaging in additional discovery to confirm Defendant’s production is complete, Plaintiff filed the motion to compel based on speculation that more documents might exist.

Therefore, the Court grants Defendant’s request for monetary sanctions against Plaintiff in the amount of $920.00.

Future Hearings:

MSC: 1/7/22

Jury Trial: 2/7/22

6

Capital One Bank (USA), N.A. vs. Gratz

 

30-2020-01138899

Motion to Deem Facts Admitted

 

The unopposed motion of plaintiff Capital One Bank (USA), N.A. for an order that truth of all specified facts in the Request for Admissions, Set One, propounded by Plaintiff on defendant Eugene C. Gratz be deemed admitted is GRANTED.

Code of Civil Procedure section 2033.280, states, in relevant part, “If a party to whom requests for admission are directed fails to serve a timely response, the following rules apply: [¶] (a) The party to whom the requests for admission are directed waives any objection to the requests, including one based on privilege or on the protection for work product under Chapter 4 (commencing with Section 2018.010). . . [¶] (b) The requesting party may move for an order that the genuineness of any documents and the truth of any matters specified in the request be deemed admitted, as well as for a monetary sanction under Chapter 7 (commencing with Section 2023.010.)”

The Requests for Admission, Set No. One, was properly served via mail on Defendant on January 26, 2021. (Salet Dec., ¶2, Ex. A.)

To date, no response to the Requests for Admission has been received by Plaintiff. Defendant has thus waived any objections to the Requests for Admission.  (Code Civ. Proc. § 2033.280(a).)

Accordingly, unless Defendant serves substantially compliant responses prior to the hearing, the genuineness of any documents and the truth of any matters specified in Plaintiff’s Request for Admissions is deemed admitted.  (Code Civ. Proc. §2033.280(c).)

Plaintiff to give notice.

 

Future Hearings:

MSC: 11/19/21

Jury Trial: 12/20/21

 

7

Bingham vs. Romero

 

30-2019-01101226

Motion for Compel Deposition

 

Defendants’ (Scott Romero and Christine Romero) Motion to Compel the Person Most Knowledgeable from Stanford Medical Billing to comply with the Deposition Subpoena for Personal Appearance and Production of Business Records served by Defendant on April 16, 2021, is DENIED.

A motion to compel a third party to comply with a deposition subpoena must be personally served on the third-party deponent. 

California Rules of Court, rule 3.1346 provides:  A written notice and all moving papers supporting a motion to compel an answer to a deposition question or to compel production of a document or tangible thing from a nonparty deponent must be personally served on the nonparty deponent unless the nonparty deponent agrees to accept service by mail or electronic service at an address or electronic service address specified on the deposition record.

A proof of service must be filed with the court clerk at least 5 court days before the hearing. (California Rules of Court, rule 3.1300.) 

Here, Defendants did not serve the nonparty with the Motion personally.

The proof of service attached to the motion only represents that Plaintiff’s counsel was served via mail.  Thus, there is no evidence that moving defendants complied with California Rules of Court, rule 3.1346. This is a ground for denying the motion. 

Defendants bring the Motion pursuant to Code Civ. Proc. § 2025.480. Code Civ. Proc. § 2025.480 states:

(a) If a deponent fails to answer any question or to produce any document or tangible thing under the deponent's control that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production. 

(b) This motion shall be made no later than 60 days after the completion of the record of the deposition and shall be accompanied by a meet and confer declaration under Section 2016.040.”

Code Civ. Proc. § 2025.450(b)(2) states: “The motion shall be accompanied by a meet and confer declaration under Section 2016.040, or, when the deponent fails to attend the deposition and produce the documents, electronically stored information, or things described in the deposition notice, by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.” 

Leko v. Cornerstone Bldg. Inspection Serv., (2001) 86 Cal. App. 4th 1109, 1124 states: “Implicit in the [meet and confer] requirement that counsel contact the deponent to inquire about the nonappearance is a requirement that counsel listen to the reasons offered and make a good faith attempt to resolve the issue. Here, the failure to appear was due to oversight and opposing counsel expressed a willingness to reschedule the depositions at a mutually convenient date.” 

Defendants failed to provide a meet and confer declaration stating that they inquired about the nonappearance. Defendants concede that “in the situation where a deponent does not show up, an inquiry must be made into the non-appearance.” (Reply at 3:26-27.)

Defendants contend that the efforts would have been futile but this is not an excuse to not comply with the meet and confer requirements of the Code of Civil Procedure. This is a ground for denying the motion. 

Based on the foregoing, the Motion is DENIED. 

In addition, it is unclear whether Defendants’ Subpoena for Personal Appearance and Production of Business Records identified the categories for testimony. 

Defendants served a deposition subpoena for personal appearance and production of business records on the Person Most Knowledgeable of  Stanford Medical Billing on April 19, 2021. The Subpoena called for a Person Most Qualified but did not specify the categories in the subpoena. Defendants represent that Exhibit A is “is a true and correct copy of the deposition subpoena for personal appearance and production of business records on the Person Most Knowledgeable of Stanford Medical Billing on April 19, 2021.” (Declaration of Chanel P. Araujo ¶ 2.)

Exhibit A contains a Notice of Deposition and Deposition Subpoena served on Plaintiff’s counsels on 4-16-19. There is no proof of service indicating which documents the nonparty deponent was served.  It is unclear to the Court whether the Notice of Deposition was personally served on the nonparty deponent or only the Subpoena that did not contain the categories. 

Regarding the nonparty’s argument that the deposition was after the discovery cutoff is now moot. The parties stipulated to continue trial and stated discovery will remain open and follow the continued trial date (ROA 49). 

Nonparty deponent seeks sanctions in the amount of $1,785.00 (2 hours at a rate of $450 per hour and $435 for a first appearance fee). Although the motion is denied, the nonparty could have avoided opposing the motion by providing a Person Most Knowledgeable for deposition. It did not. Accordingly, the Court declines to award sanctions.  

Lastly, this ruling is without prejudice for Defendants to take the deposition they seek subject to a proper subpoena. The Court only declines to enforce the subpoena that is the subject of the motion. 

Accordingly, Defendants’ (Scott Romero and Christine Romero) Motion to Compel the Person Most Knowledgeable from Stanford Medical Billing to comply with the Deposition Subpoena for Personal Appearance and Production of Business Records served by Defendant on April 16, 2021, is DENIED.

Moving Defendants to give notice.

 

Future Hearings:

Jury Trial: 3/21/22

 

8

Pavese vs. Siwell, Inc.

 

30-2019-01104169

Motion for Relief from Order Deeming Facts Admitted

 

Defendant, Siwell, Inc., dba Capital Mortgage Services of Texas’ motion for relief from the order granting the motion of plaintiff Jeri Anne Pavese to deem true the matters specified in Plaintiff’s second set of Requests for Admission to Defendant Siwell, Inc. dba Capital Mortgage Services of Texas, entered on February 18, 2021 is DENIED without prejudice.

Defendant moves pursuant to Code of Civil Procedure Section 473(b). Relief is not available under Section 473(b) and must be sought under Section 2033.300. “[Former] Section 2033 supersedes section 473 as the avenue to obtain default relief in a situation of failure to respond to admissions requests.” (St. Paul Fire & Marine Ins. Co. v. Superior Ct. (1992) 2 Cal. App. 4th 843, 852. [disapproved on other grounds by Wilcox v. Birtwhistle (1999) 21 Cal.4th 973, 983 fn. 12.])

Plaintiff argues that the Motion should be denied because relief is unavailable under Section 473(b) and the Court does not have authority to consider grounds not sought in the Motion. 

A notice of motion must state in writing the “grounds upon which it will be made.” (Code Civ. Proc., § 1010; Cal. Rules of Court, Rule 3.1110(a).) “Only the grounds specified in the notice of motion may be considered by the trial court.” (Gonzales v. Superior Ct. (1987) 189 Cal. App. 3d 1542, 1545.) 

Defendant filed an untimely declaration of its counsel in support of the Reply in which Defendant’s counsel acknowledges that he incorrectly filed the Motion pursuant to Section 473(b) and that relief is available pursuant to Section 2033.300. (Supp. Nunley Decl., ¶ 5.)

However, Defendant asks that if the Court denies the Motion it be without prejudice to re-filing a motion pursuant to the correct statute. (Supp. Nunley Decl., ¶ 5.) 

Based on the foregoing, the Court DENIES the Motion without prejudice to refiling under the correct section. 

Defendant to give notice.

 

Future Hearings:

Motion for Sanctions: 11/4/21

Motion for Sanctions: 12/23/21

MSC: 2/25/22

Jury Trial: 3/28/22

 

9

Dewan vs. Mercedes-Benz USA, LLC

 

2020-01162991

Motion for Judgment on the Pleadings

 

Defendant moves for a judgment on the pleadings for Plaintiff’s third cause of action for “Fraudulent Inducement – Concealment” on the grounds that there are insufficient facts to support a cause of action and the claim is barred by the economic loss rule. 

Under California’s economic loss rule, “where a purchaser’s expectations in a sale are frustrated because the product he bought is not working properly, his remedy is said to be in contract alone, for he has suffered only economic losses.” (Robinson Helicopter, Co., Inc. v. Dana Corp. (2004) 34 Cal. 4th 979, 988 [internal quotations and citations omitted].) Economic loss consists of “damages for inadequate value, costs of repair and replacement of the defective product or consequent loss of profits – without any claim of personal injury or damages to other property ....” (Id. [internal quotations and citations omitted].) “The economic loss rule requires a purchaser to recover in contract for purely economic loss due to disappointed expectations, unless he can demonstrate harm above and beyond a broken contractual promise.” (Id.; Seely v. White Motor Co. (1965) 63 Cal.2d 9 [economic loss rule applies where plaintiff incurs damages due to defective produce but who suffers no personal injury or damage to property other than the defective product itself; in such cases, plaintiff’s claim is governed by the law of sales and his/her remedies are generally limited to warranty theories].)

In Robinson Helicopter, the California Supreme Court held that a fraud cause of action may only be brought where alleged fraudulent representations were made as to matters which were independent from those contained in the contract, and which exposed the plaintiff to personal damages independent of the plaintiff’s economic loss. (Id. at 993.)

Plaintiff is required to “demonstrate harm above and beyond a broken contractual promise,” in order to recover tort damages in addition to contract damages. (Id. at 988.) This is a narrow exception to the general rule to apply the economic loss doctrine.

Here, the alleged fraudulent concealment resulted only in purely economic loss.

The Complaint alleges Defendant was aware of defective air conditioning systems and failed to disclose to Plaintiff information about the defective air conditioning systems with the Subject Vehicle. (Complaint ¶36.) The damage alleged is related to the Subject Vehicle only because Plaintiff would not have purchased the vehicle if the defect was disclosed. (Complaint ¶ ¶ 37, 39.) 

Plaintiff does not claim that the vehicle’s alleged defects caused personal injury or physical damage to property.

Plaintiff argues fraudulent concealment is an exception to the economic loss rule and cites to Anderson v. Apple Inc. (N.D. Cal. 2020) 500 F.Supp.3d 993 (Anderson), in support of this proposition. Anderson notes that “California’s federal district courts have split on the issue, though it appears most have held that the economic loss doctrine does bar fraudulent omissions claims based on purely economic loss,” but went on to find that fraudulent omissions leading to adopting a contract is just as intentional and tortious as an affirmatively misleading misrepresentation. (Id. at 1019-1021.)

Anderson is distinguishable because the plaintiffs did not bring a manufacturing defect claim that would be covered by a warranty. Rather, the plaintiffs alleged concealment of a design defect. (Id. at 1022-1023.)

As noted in Anderson, federal cases have found that the narrowly tailored exception to the economic loss rule articulated in Robinson Helicopter does not extend to fraudulent omission claims. (Goldstein v. General Motors LLC (S.D. Cal. 2021) No. 3:19-CV-1778-JLS-AHG, 2021 WL 364140, at *9, citing Robinson Helicopter, 34 Cal.4th at. at 993 [holding the “narrow” exception to the economic loss rule is “limited to a defendant’s affirmative misrepresentations on which a plaintiff relies and which expose a plaintiff to liability for personal damages”].)

In re Ford Motor Co. DPS6 Powershift Transmission Products Liability Litigation (C.D. Cal. 2020) 483 F.Supp.3d 838, 847-849, the district court found the plaintiff’s claims were barred by the economic loss rule because “Plaintiff’s harm is purely economic and derives from Ford’s alleged breach of its warranty obligation to fix or replace the vehicle if it is defective. Stated differently, the foundation of Plaintiff’s claim is that his expectations about the vehicle were frustrated because it did not work properly as Ford promised it would.” (Id. at 848.)

Based on the foregoing, Defendant’s motion for judgment on the pleadings to the third cause of action is GRANTED. Plaintiff has alleged that a product defect was fraudulently concealed, and this alleged defect has only caused economic loss to Plaintiff. Thus, the economic loss rule bars Plaintiff’s claim.  

Moreover, the facts supporting the elements of fraudulent concealment are not alleged with the necessary specificity. The Complaint’s allegations are vague and conclusory, which fail to support a fraudulent concealment claim. Plaintiff fails to allege any specificity regarding any representation or interaction with Defendant wherein any concealment was made. 

Accordingly, Defendant’s motion for judgment on the pleadings to the third cause of action is GRANT on this basis as well. 

Regarding leave to amend, to prove there is a reasonable possibility of amendment, Plaintiff must set forth factual allegations that sufficiently state all required elements of the causes of action he seeks to assert. (Rosen v. St. Joseph Hospital of Orange County (2011) 193 Cal.App.4th 453, 458.) Plaintiff has not met this burden. Thus, leave to amend is not granted. 

Defendant also seeks a judgment on Plaintiff’s request for punitive damages. Based on Court’s ruling on judgment on the pleadings on Plaintiff’s third cause of action, the Court also GRANTS judgment on the pleadings on Plaintiff’s request for punitive damages. 

To properly allege entitlement to punitive damages, there must be circumstances of oppression, fraud or malice, and facts must be alleged in the pleading to support such a claim. (Grieves v. Superior Ct. (1984) 157 Cal.App.3d 159, 166.) A properly pleaded fraud claim itself supports recovery of punitive damages. (Stevens v. Superior Ct. (1986) 180 Cal.App.3d 605, 610-11.)

Punitive damages cannot be pled in conclusory terms, instead the facts supporting a claim for punitive damages must be set out clearly, concisely, and with particularity. (Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1041 to 1042.)

Here, Plaintiff’s request for punitive damages is only supported by a fraud cause of action. Civil Code § 1794 limits damages for causes of action based on violations of the Song-Beverly Act to reimbursement, replacement of vehicle, and a civil penalty not to exceed two times plaintiff’s actual damages. Thus, punitive damages cannot be recovered based on the first and second causes of action for Breach of Implied Warranty of Merchantability under the Song-Beverly Warranty Act and Breach of Express Warranty under the Song-Beverly Warranty Act, respectively. 

Since the court GRANTS judgment on the pleadings on the third cause of action for “Fraudulent Inducement—Concealment.” there is no basis for punitive damages. 

Moreover, the Complaint does not state facts sufficient to support a punitive damage claim. Plaintiff conclusory alleges: “The conduct of the Defendant in failing to disclosure this information to Plaintiff was done with malice.” (Complaint ¶ 38.) This is not sufficient. 

Accordingly, Defendant Mercedes-Benz USA, LLC’s Motion for Judgment on the Pleadings on Plaintiff’s Third Cause of Action for “Fraudulent Inducement—Concealment” and Plaintiff’s Prayer for Punitive Damages is GRANTED without leave to amend. 

Defendant to give notice. 

Future Hearings:

Motion to Compel Response to RFAs: 1/13/22

Motion to Compel Further Responses to Special Interrogs: 1/13/22

MSC: 6/2/23

Jury Trial: 7/3/23

 

10

Romero vs. Edwards Lifesciences Corporation

 

30-2019-01116113

Motion for Summary Judgment and/or Adjudication

Future Hearings:

 

Defendant’s Motion for Summary Judgment, or in the Alternative, for Summary Adjudication of Causes of Action (ROA 54) is DENIED as to summary judgment; DENIED as to summary adjudication of causes of action 1-8 and GRANTED as to the claim for punitive damages.

The court declines to rule on Defendant’s Objections to Plaintiff’s Purported Evidence in Support of Opposition to Defendant’s Separate Statement of Undisputed Material Facts (ROA 66) because they are not in the form required by CRC, Rule 3.1354.  Rather than object to specific evidence, Defendant offers objections to each of Plaintiff’s responses to the Undisputed Material Facts.  (See Hodjat v. State Farm Mut. Auto. Ins. Co. (2012) 211 Cal.App.4th 1, 8, finding the trial court did not abuse its discretion when it refused to rule on objections which did not comply with CRC 3.1354).

Defendant’s “Undisputed” Material Facts.  Defendant’s motion relies on the following assertedly “undisputed” facts.  Defendant Edwards is a medical device company specializing in artificial heart valves and cardiac monitoring equipment.  Romero was hired in February 2014 as a Staff Manufacturing Engineer in the transcatheter heart valve department.  (UMF 1)   Romero did not perform at a satisfactory level during his first two years.  (UMF 2) 

In 2016, Romero began reporting to Donald Bobo who found his job performance subpar.  (UMF 3)   In February 2017, Romero applied and was selected for an opening as Operations Integrator in Defendant’s critical care department.  (UMF 4)   Plaintiff joined an ongoing project responsible for manufacturing and commercializing and non-latex balloon for a pulmonary catheter manufactured in Puerto Rico.  (UMF 6)   Plaintiff’s manager on the project felt that Plaintiff’s shortcomings were “hindering the progress of the project.”  (UMF 9)   In September 2017, Yew Wai Tham became Plaintiff’s immediate manager.  Tham became concerned about Plaintiff’s job performance shortly after he began managing Plaintiff.  (UMF 11)   In February 2018, Plaintiff was told by Tham and HR that there were significant concerns regarding his performance, and he was placed on a performance improvement plan.  (UMFs 12-14)   A few weeks after the PIP began, Romero went out on medical leave for a month.  (UMF 16)   When Plaintiff returned to work in mid-April, Tham observed a continuation of performance deficiencies.  (UMF 17)   On 5-29-18, Plaintiff began another medical leave that lasted until 8-23-18.  (UMFs 18-19)   One week after Plaintiff returned to work, Tham and HR met with him to remind him of the PIP.  (UMF 20)   On 9-7-18, Plaintiff was involved in a car accident that required another leave.  Although he had exhausted all available leave, he was given additional leave as an accommodation.  He remained on leave until 10-23-18 when he returned without any medical restrictions.  (UMFs 20-22 and 33)   When he returned to work, his performance continued to be unsatisfactory, and he was terminated on 12-4-18.  (UMFs 23, 24 and 26)   The decision makers on the termination were Tham and Abdulkader O. Sudam (Tham’s manager).  (UMF 24)

The only accommodation Plaintiff ever requested was medical leave and all his requested were granted.  (UMFs 31)   Plaintiff never submitted any medical documentation to support a claimed request for a reduced or remote work scheduled.  Such documentation was required by company policy.  (UMF 32)  

In the 5-29-18 email informing Defendant of his second medical leave, Plaintiff notified Defendant that he had been subject to a “hostile work environment” because his team wanted to terminate his employment in response to Plaintiff’s raising questions about a design process, specifically that one of the instruments involved was allegedly not capable of producing accurate measurements.  (UMF 48)   Plaintiff’s supervisors did not believe the issue raised any compliance concern because another system also performed measurements.  Plaintiff was notified that there were no safety issues.  (UMFs 49-51)  

Tham and Sudam (the termination decision makers) are not officers or directors.  (UMF 55)   Tham only supervised 5 employees and Sudam only supervised between 5 and 10 employees.  (UMF 56)   Neither Tham nor Sudam had authority to make company-wide policy.  (UMF 57)

First Cause of Action for Disability Discrimination in Violation of California’s Fair Employment and Housing Act (“FEHA”).  “A prima facie case of disability discrimination under FEHA requires the employee to show he or she (1) suffered from a disability, (2) was otherwise qualified to do his or her job, and (3) was subjected to adverse employment action because of the disability.

Once the employee establishes his or her prima facie case, the burden then shifts to the employer to offer a legitimate, nondiscriminatory reason for the adverse employment action. The employee may still defeat the employer's showing with evidence that the stated reason is pretextual, the employer acted with discriminatory animus, or other evidence permitting a reasonable trier of fact to conclude the employer intentionally discriminated.”  (Choochagi v. Barracuda Networks, Inc. (2019) 60 Cal.App.5th 444, 458-459 [citations and internal quotation marks omitted].) 

This test is derived from McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 36 L.Ed.2d 668, 93 S.Ct. 1817.

In the context of an employer's motion for summary judgment, or, in the alternative, a motion for summary adjudication, the above-referenced test is modified. For a summary judgment or summary adjudication motion, “the trial court will be called upon to decide if the plaintiff has met his or her burden of establishing a prima facie case of unlawful discrimination. If the employer presents admissible evidence either that one or more of plaintiff's prima facie elements is lacking, or that the adverse employment action was based on legitimate, nondiscriminatory factors, the employer will be entitled to summary judgment unless the plaintiff produces admissible evidence which raises a triable issue of fact material to the defendant's showing. In short, by applying McDonnell Douglas's shifting burdens of production in the context of a motion for summary judgment, the judge [will] determine whether the litigants have created an issue of fact to be decided by the jury. . . Thus, [a]lthough the burden of proof in a [discrimination] action claiming an unjustifiable [termination] ultimately rests with the plaintiff ..., in the case of a motion for summary judgment or summary issue adjudication, the burden rests with the moving party to negate the plaintiff's right to prevail on a particular issue.... In other words, the burden is reversed in the case of a summary issue adjudication or summary judgment motion....”  (Arteaga v. Brinks, Inc. (2008) 163 Cal.App.4lth 327, 344 [citations and internal quotation marks omitted; emphasis in the original].)    

The discrimination at issue must be a substantial motivating factor in the adverse employment decision. (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 232.)  The employer's true reasons for termination, if nondiscriminatory, need not be wise or correct.  Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 358.  “Proof that the employer's proffered reasons are unworthy of credence may considerably assist a circumstantial case of discrimination, because it suggests the employer had cause to hide its true reasons. Still, there must be evidence supporting a rational inference that intentional discrimination, on grounds prohibited by the statute, was the true cause of the employer's actions. Accordingly, the great weight of federal and California authority holds that an employer is entitled to summary judgment if, considering the employer's innocent explanation for its actions, the evidence as a whole is insufficient to permit a rational inference that the employer's actual motive was discriminatory.”  (Guz, 24 Cal.4th at 361 [citations and internal quotation marks omitted].)  

Defendant argues that Plaintiff cannot establish he was performing competently.  Defendant asserts Plaintiff was performing below expectations from the outset of his employment.  However, Exhibits G (also called Exhibit 112), H (also called Exhibit 113) and I (also called Exhibit 114) establish that Plaintiff was, generally, meeting expectations.  

Exhibit G (also referred to as Exhibit 112) is Plaintiff’s 2014 Performance Review.  His supervisor, Loos, ranks Plaintiff as “Meeting Expectations” in 3 objectives and “Exceeding Expectations” in one objective.  In Core Competencies, Loos ranks Plaintiff as “E” [Effective] in 6 areas and “S” [Strength] in 4.  The overall performance rating is “Consistently Meets Expectations.”  (Exhibit G; UMF 2.)  

Exhibit H (also referred to as Exhibit 113) is Plaintiff’s 2015 Performance Review.  His supervisor, Loos, ranks Plaintiff as “Meeting Expectations” in all 4 objectives.  In Core Competencies, Loos ranks Plaintiff as “E” [Effective] in 5 areas; “S” [strength] in 3 and D [Development Area] in 1 [leadership].  The overall performance rating is “Consistently Meets Expectations.”  (Exhibit H; UMF 2.)

Exhibit I (also referred to as Exhibit 114) is Plaintiff’s 2016 Performance Review.  His supervisor, Bobo, Plaintiff as “Meeting Expectations” in 4 objectives.  In “Competencies”, Bobo ranked Plaintiff as “meets expectations” in four areas and “needs improvement” in one [“Drives Results”].  (Exhibit I; UMF 3.)

Exhibit L (also referred to as Exhibit 117) is Plaintiff’s 2017 review.  His supervisor, Sudam, ranked Plaintiff “Meets Expectations” on 4 goals and “Needs Improvement” on 2.  In “Competencies”, Sudam ranked Plaintiff as “Meets Expectations” in 3 areas and “Needs Improvement” in 2 [Instills Trust and Drives Results].  So, on balance, Plaintiff met expectations in more areas than he needed improvement.  (Exhibit L; UMFs 12-13)

Defendant also argues that Plaintiff cannot establish circumstances suggesting a discriminatory motive for the termination of his employment. This argument is based on the assertion that the termination decision makers, Tham and Sudam, had no knowledge of Plaintiff’s alleged disabilities.  (Sadum Dec., ¶ 7, Tham Dec., ¶ 8; this “fact” is not included in Defendant’s Undisputed Material Facts.)

An employer is only required to accommodate a "known physical ... disability." (Cal. Govt. § 12940(m); see also Cal. Code Regs., tit. 2, § 7293.9.)  "[A]n employer `knows an employee has a disability when the employee tells the employer about [the] condition, or when the employer otherwise becomes aware of the condition, such as through a third party or by observation.  The employer need only know the underlying facts, not the legal significance of those facts.”  (Faust v. California Portland Cement Co. (2007) 150 Cal.App.4th 864, 887 [citations and internal quotation marks omitted].) “While knowledge of the disability can be inferred from the circumstances, knowledge will only be imputed to the employer when the fact of disability is the only reasonable interpretation of the known facts.”  (Brundage v. Hahn (1997) 57 Cal.App.4th 228, 237.)

“Where the disability, resulting limitations, and necessary reasonable accommodations, are not open, obvious, and apparent to the employer, the employee bears the burden to specifically identify the disability and resulting limitations, and to suggest the reasonable accommodations.  Additionally, [a]n employer does not have to accept an employee's subjective belief that he is disabled and may rely on medical information in that respect.”  (Doe v. Department of Corrections and Rehabilitation (2019) 43 Cal.App.5th 721, 738-739 [citations and internal quotation marks omitted].)

Although Plaintiff was, primarily, meeting expectations, he was placed on a Performance Improvement Plan (“PIP”) on 2-28-18 (the same day he was given his 2017 review).  (UMF 14.)  Plaintiff responded to the review and the PIP with an email asserting that his team, particularly an employee named Joeng Lee, had refused to accommodate Plaintiff’s alleged back issues:  “I was in a meeting with the team when Jeong asked that I helped move some boxes and I told him that I was having issues with my lower back and he told me in front of the team that I was just making another excuse and being lazy.  On another occasion John forgot to book a room for our Cal-Cup meeting so I called into the Skye meeting and when I did Jeong stated that I was too lazy to walk to the conference room. The fact that he was insisting that I was faking my injury and that I was lazy offended me very much so I send an email to Jeong which ended up in us having a sit down meeting.”  (Exhibit N at p. 277.)  

In support of the claim that Plaintiff was not performing competently and the resulting PIP, Defendant asserts that significant concerns were raised by “the project team members.”  (UMFs 13-14)   Jeong is identified in the 3-2-18 email as a project team member.  (Exhibit N at p. 276.)  Thus, a triable issue of material fact is raised as to whether Joeng raised “concerns” that impacted the PIP.  Joeng was aware of Plaintiff’s back issues and, allegedly, had refused to accommodate them in the workplace.  (Reeves v. Safeway Stores, Inc. (2004) 121 Cal.App.4th 95, 113 [“To establish an entitlement to judgment as a matter of law, it is not enough to show that one actor acted for lawful reasons when that actor may be found to have operated as a mere instrumentality or conduit for others who acted out of discriminatory or retaliatory animus, and whose actions were a but-for cause of the challenged employment action. If a supervisor makes another his tool for carrying out a discriminatory action, the original actor's purpose will be imputed to the tool, or through the tool to their common employer.”]

Defendant further asserts that, even if Plaintiff can establish his prima facie case, Plaintiff was terminated for performance issues and there is no evidence of pretext. 

As set forth above, there is a triable question of fact as to whether Plaintiff was performing competently.  Defendant argues there is no proof of pretext because the decision makers, Yew Wai Tham and Abdulkader O. Sudam (UMF 24), were unaware that Plaintiff had any disability.  (UMFs 24) 

First, as set forth above, there is a triable issue of fact as to whether Jeong, who allegedly refused to accommodate Plaintiff’s claimed disability, played a role in the PIP. 

Further, on 5-29-18, Plaintiff sent an email to Tham and Sudam stating, in part, “I need to see about taken a leave of absence using my vacation time.  The current work situation with the team wanting me out is causing me much stress and anxiety.  I know the timing is bad and believe me it’s a difficult decision for me to make but my health is my main priority . . .”  (UMF 18; Exhibit P (also Exhibit 123) at p. 283.) 

Defendant argues that reference to “anxiety” is not sufficient to put Tham or Sudam on notice of the disability because it was a “generalized” assertion of anxiety and not a specific reference to a particular disorder.  However, "an employer knows an employee has a disability when the employee tells the employer about [the] condition, or when the employer otherwise becomes aware of the condition, such as through a third party or by observation.  The employer need only know the underlying facts, not the legal significance of those facts.”  (Faust v. California Portland Cement Co. (2007) 150 Cal.App.4th 864, 887 [citations and internal quotation marks omitted].)  The reference is sufficient to raise a triable issue of material fact as to whether the termination decision makers had knowledge of Plaintiff’s claimed disabilities.

Further, when Romero returned from his second medical leave, he asked Melissa McCormick, the HR person who implemented the termination (UMF 26), if he could work remotely or take a reduced work schedule (UMF 32).  McCormick allegedly told Plaintiff that Defendant was against it.  (Id.)  A triable issue of material fact remains as to whether the termination of Plaintiff’s employment was the result of his claimed disabilities, either the repeated leaves of absence or the request for a reduced or remote work schedule.

As one California appellate court explained in Light v. Department of Parks & Recreation (2017) 14 Cal.App.5th 75, 94-95:

“The showing of pretext, while it may indicate retaliatory intent or animus, is not the sole means of rebutting the employer's evidence of nonretaliatory intent.  While ‘pretext’ is certainly a relevant issue in a case of this kind, making it a central or necessary issue is not sound. The central issue is and should remain whether the evidence as a whole supports a reasoned inference that the challenged action was the product of discriminatory or retaliatory animus. The employer's mere articulation of a legitimate reason for the action cannot answer this question; it can only dispel the presumption of improper motive that would otherwise entitle the employee to a judgment in his favor. Thus, citing a legitimate reason for the challenged action will entitle the employer to summary judgment only when the employee's showing, while sufficient to invoke the presumption, is too weak to sustain a reasoned inference in the employee's favor. That, and not ‘pretext,’ must be the focus of the judicial inquiry.”

Although a temporal relationship alone is insufficient, other circumstantial evidence of retaliatory intent may be enough to avoid summary judgment. "Proof of discriminatory intent often depends on inferences rather than direct evidence. And because it does, very little evidence of such intent is necessary to defeat summary judgment.  Put conversely, summary judgment should not be granted unless the evidence cannot support any reasonable inference for plaintiff.” (Citations and internal quotation marks omitted.)

Defendant’s motion for summary adjudication is DENIED as to the first cause of action.   

Second Cause of Action for Failure to Accommodate in Violation of the FEHA.  “The elements of a failure to accommodate claim are (1) the plaintiff has a disability under the FEHA, (2) the plaintiff is qualified to perform the essential functions of the position, and (3) the employer failed to reasonably accommodate the plaintiff's disability.”  Scotch v. Art Institute of California (2009) 174 Cal.App.4th 986, 1009-1010.  “An employer has an affirmative duty to reasonably accommodate a disabled employee and that duty is a continuing one that is not exhausted by one effort.  A single failure to reasonably accommodate an employee may give rise to liability, despite other efforts at accommodation.”  (Swanson v. Morongo United School District (2014) 232 Cal.App.4th 954, 969 [citations and internal quotation marks omitted].)

Defendant moves for summary adjudication of this claim on the ground that Plaintiff failed to give Defendant notice of his need for reasonable accommodation and, even if he had, the request was mooted by the automobile accident that happened two weeks after the request was allegedly made. 

 Defendant also argues that Plaintiff’s work- related anxiety is not a disability under the FEHA.  In support of this argument, Defendant cites Higgins-William v. Sutter Med. Foundation (2015) 237 Cal. App. 4th 78, 84. Higgins holds (at p. 84): “An employee's inability to work under a particular supervisor because of anxiety and stress related to the supervisor's standard oversight of the employee's job performance does not constitute a [mental] disability under FEHA.” 

Plaintiff, here, does not claim inability to work for a specific supervisor.   Plaintiff presents evidence that he requested an accommodation of a reduced or remote work situation and that the request was denied.  (UMF 32).  A triable issue of fact remains as to whether Defendant satisfied its duty to accommodate Plaintiff’s claimed disability.  

Summary adjudication is DENIED as to the second cause of action.  

Third Cause of Action for Failure to Engage in the Interactive Process in Violation of the FEHA.  Defendant moves for summary adjudication of the third cause of action on the same grounds as the second cause of action.  (MPA at 12:20-13:22.)  “The ‘interactive process’ required by the FEHA is an informal process with the employee or the employee's representative, to attempt to identify a reasonable accommodation that will enable the employee to perform the job effectively. Ritualized discussions are not necessarily required. [¶] The interactive process imposes burdens on both the employer and employee. The employee must initiate the process unless the disability and resulting limitations are obvious. Where the disability, resulting limitations, and necessary reasonable accommodations, are not open, obvious, and apparent to the employer, . . . the initial burden rests primarily upon the employee . . . to specifically identify the disability and resulting limitations, and to suggest the reasonable accommodations.”  (Scotch, 173 Cal.App.4th at 1013.)  

An employer must “engage in a timely, good faith, interactive process with the employee . . . to determine effective reasonable accommodations." (Gov. Code, § 12940(n).)  Failure to do so is a violation separate from failure to accommodate. (Wilson v. County of Orange (2009) 169 Cal.App.4th 1185, 1193.  

As set forth in connection with the 2nd cause of action, a triable issue of fact remains as to whether Defendant appropriately engaged in the interactive process in response to Plaintiff’s allegedly request for an accommodation of a reduced or remote work situation.  Summary adjudication is DENIED as to the third cause of action.  

Fourth Cause of Action for Medical Condition Discrimination in Violation of the FEHA.  Defendant moves for summary adjudication of the fourth cause of action on the same grounds as the first cause of action.  (MPA at 8:20-12:20.)   For the reasons set forth in connection with the 1st cause of action, summary adjudication is DENIED as to the fourth cause of action.  

Fifth Cause of Action for Retaliation in Violation of the FEHA.  An employer seeking summary judgment on a retaliation claim “has the initial burden to present admissible evidence showing either that one or more elements of plaintiff's prima facie case is lacking or that the adverse employment action was based upon legitimate, non[retaliatory] factors.”  (Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 861.)  When the employer meets that burden by identifying a legitimate, nonretaliatory reason for its decision, the burden shifts to the employee to raise a triable issue of pretext.  (Id.)  An employee meets that burden by “producing substantial evidence that the employer's stated reasons were untrue or pretextual, or that the employer acted with a discriminatory animus, such that a reasonable trier of fact could conclude that the employer engaged in intentional discrimination or other unlawful action.”  (Id.)

”[I]n order to establish a prima facie case of retaliation under the FEHA, a plaintiff must show (1) he or she engaged in a protected activity, (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer's action.”  (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042 [citations and internal quotation marks omitted].)  The requisite “causal link” may be shown by the temporal relationship between the protected activity and the adverse employment action. Arteaga, 163 Cal.App.4th at 356.  

Defendant moves for summary adjudication of this claim on the ground that Plaintiff cannot establish a prima facie case of retaliation and, even if he could, Defendant has articulated a legitimate, nondiscriminatory reason for its actions and there is no evidence of pretext.  

Plaintiff made a claim of racial discrimination on 5-29-18.  (UMFs 41 and 42, Exhibits P (also Exhibit 123) and Q (also Exhibit 124). 

The investigation conducted by Defendant confirmed that Jeong Lee “has spoken about his Korean upbringing as a source of pride and how he believes others should have a similar work ethic as his culture.”  (Exhibit P at p. 4/6 or 289).  Lee was asked “to refrain from bringing up his culture in the future as a comparison because, while his intent may be to inspire, his statements may be interpreted.”  (Id.)  The investigation also confirmed Plaintiff’s assertion that Lee had called Plaintiff “lazy.”  (Id.)  Defendant determined, however, that it was unable to “substantiate any racist behavior by Jeong Lee or that he treated anyone differently based on their race.”  (Id.)

Plaintiff’s allegation of racism was made on 5-29-18.  Plaintiff went on leave, beginning that day, and concluding on 8-23-18.  (UMFs 18-19) One week after Plaintiff returned to work, Tham and HR met with him to remind him of the PIP.  (UMF 20) 

On 9-7-18, Plaintiff was involved in a car accident that required another leave, lasting to 10-23-18.  (UMFs 21-22) The decision to terminate Plaintiff was made approximately one month after his return.  (UMFs 24 and 26)  

Plaintiff worked approximately six weeks between his complaint and the decision to terminate his employment.  Given that temporal proximity, triable issues of material fact exist as to whether there was a causal link between the complaint and the termination.  Summary adjudication is DENIED as to the fifth cause of action.

Sixth Cause of Action for Retaliation in Violation of California Labor Code § 1102.5.  On 2/10/21, the California Supreme Court agreed to answer the Ninth Circuit’s question of California law in the matter of Lawson v. PPG Architectural Finishes, Inc. (S266001; 9th Cir. No. 19-55802; 982 F.3d 762).  The question is: “Does the evidentiary standard set forth in Labor Code section 1102.6 replace the test of McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 as the relevant evidentiary standard for retaliation claims brought pursuant to Labor Code section 1102.5?”  

Section 1102.6 reads, in full:  

In a civil action or administrative proceeding brought pursuant to Section 1102.5, once it has been demonstrated by a preponderance of the evidence that an activity proscribed by Section 1102.5 was a contributing factor in the alleged prohibited action against the employee, the employer shall have the burden of proof to demonstrate by clear and convincing evidence that the alleged action would have occurred for legitimate, independent reasons even if the employee had not engaged in activities protected by Section 1102.5.

Accordingly, Defendant’s burden of proof on this claim is currently undecided.  However, Defendant’s motion does not satisfy the burden under either alternative.  Retaliation may be proven by circumstantial evidence.  (Mokler v. County of Orange (2007) 157 Cal.App.4th 121, 138.  Temporal proximity can be circumstantial evidence of retaliation.  (Mokler, 157 Cal.App.4th at 140-141.)  

Plaintiff raised concerns about the inaccuracy of the “BetaLaser” or “laser mike” before 3-2-18.  (Exhibit N at p. 276).  Between 3-2-18 and the termination of his employment, Plaintiff was present at work for less than four months.  That proximity is sufficient circumstantial evidence to raise a triable issue of material fact.  

Further, Defendant argues that Plaintiff’s complaint cannot be a protected activity because it was “consistent” with his job duties.  However, § 1102.5 reads, in pertinent part: “An employer, or any person acting on behalf of the employer, shall not retaliate against an employee for disclosing information . . .  to a person with authority over the employee or another employee who has the authority to investigate, discover, or correct the violation or noncompliance . . . regardless of whether disclosing the information is part of the employee’s job duties.”  (Emphasis added.)

Defendant also argues that Plaintiff failed to identify any potential statutory or regulatory violation.  In opposition, Plaintiff identifies Title 21 of the Code of Federal Regulations § 820.72.  Section 820.72 addresses quality system regulation for medical devices and reads, in pertinent part:  Each manufacturer shall ensure that all inspection, measuring, and test equipment including mechanical, automated, or electronic inspection and test equipment, is suitable for its intended purposes and is capable of producing valid results.”  

Summary adjudication is DENIED as to the sixth cause of action.

Seventh Cause of Action for Failure to Prevent Discrimination in Violation of the FEHA.  Defendant moves for summary adjudication of this claim on the same grounds as the 1st, 4th and 5th c/a.  Defendant also claims to have fulfilled its obligations under FEHA to prevent discrimination.  

Because Plaintiff’s discrimination and retaliation claims survive, summary adjudication is DENIED as to the seventh cause of action.

Eighth Cause of Action for Wrongful Termination in Violation of Public Policy (FEHA & Labor Code § 1102.5).  Defendant moves for summary adjudication of this claim on the same grounds as the 1st, 4th and 5th causes of action.  Because Plaintiff’s discrimination and retaliation claims survive, summary adjudication is DENIED as to the eighth cause of action

Plaintiff’s Claim for Punitive Damages.  Defendant moves for summary adjudication of this claim on the ground that there is no clear and convincing evidence of malice, oppression or fraud by any of Defendant’s officers, directors or managing agents.  

Plaintiff does not offer any opposition on this point and does not dispute any of the material facts offered in support of the motion for summary adjudication of the claim of punitive damages.  

Defendant met its burden on the claim for punitive damages, showing that the decision makers were not officers or directors “[A]ll material facts must be set forth in the separate statement. `This is the Golden Rule of Summary Adjudication: if it is not set forth in the separate statement, it does not exist.’”  (United Community Church v. Garcin (1991) 231 Cal.App.3d 327, 337; italics in original.) 

Because Plaintiff failed to dispute any of Defendant’s proffered undisputed material facts or to provide any legal or factual argument, summary adjudication is GRANTED as to Plaintiff’s claim for punitive damages.  

 

 

MSC: 2/25/22

Jury Trial: 3/21/22