This case was last updated from Los Angeles County Superior Courts on 06/16/2019 at 15:18:52 (UTC).

CARMEN LIZA VS CKE RESTAURANTS HOLDINGS INC

Case Summary

On 06/22/2017 CARMEN LIZA filed a Labor - Wrongful Termination lawsuit against CKE RESTAURANTS HOLDINGS INC. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is MARC MARMARO. The case status is Pending - Other Pending.
Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****6232

  • Filing Date:

    06/22/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Labor - Wrongful Termination

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

MARC MARMARO

 

Party Details

Petitioner and Plaintiff

LIZA CARMEN

Defendants and Respondents

CKE RESTAURANTS HOLDINGS INC

DOES 1 TO 20

CARL'S JR. RESTAURATNS LLC DOE 1

AKASH MANAGEMENT LLC

Attorney/Law Firm Details

Petitioner and Plaintiff Attorneys

ELIHU KAVEH S. ESQ.

PANOSIAN SYLVIA V.

Defendant and Respondent Attorneys

LITTLER MENDELSON P.C.

KOZEYCHUK ULIANA A

GRUVER ERICA H. ESQ.

 

Court Documents

DEFENDANT CARL'S JR. RESTAURANTS, LLC'S NOTICE OF MOTION AND MOTION FOR JUDGMENT ON THE PLEADINGS

9/14/2018: DEFENDANT CARL'S JR. RESTAURANTS, LLC'S NOTICE OF MOTION AND MOTION FOR JUDGMENT ON THE PLEADINGS

DEFENDANT CARL'S JR. RESTAURANTS, LLC'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION FOR JUDGMENT ON THE PLEADINGS

9/14/2018: DEFENDANT CARL'S JR. RESTAURANTS, LLC'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION FOR JUDGMENT ON THE PLEADINGS

DECLARATION OF ERICA H. GRUVER; ETC.

9/14/2018: DECLARATION OF ERICA H. GRUVER; ETC.

DEFENDANT CARL'S JR. RESTAURANTS, LLC'S REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF ITS MOTION FOR JUDGMENT ON THE PLEADINGS

9/14/2018: DEFENDANT CARL'S JR. RESTAURANTS, LLC'S REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF ITS MOTION FOR JUDGMENT ON THE PLEADINGS

AMENDMENT TO COMPLAINT

9/14/2018: AMENDMENT TO COMPLAINT

Proof of Personal Service

10/15/2018: Proof of Personal Service

Declaration

11/5/2018: Declaration

Request for Judicial Notice

11/5/2018: Request for Judicial Notice

Demurrer

11/5/2018: Demurrer

Memorandum of Points & Authorities

11/5/2018: Memorandum of Points & Authorities

Motion for Leave to Amend

11/19/2018: Motion for Leave to Amend

Memorandum of Points & Authorities

11/19/2018: Memorandum of Points & Authorities

Declaration

11/19/2018: Declaration

Stipulation and Order

11/28/2018: Stipulation and Order

Opposition

11/30/2018: Opposition

Opposition

11/30/2018: Opposition

Objection

11/30/2018: Objection

Objection

11/30/2018: Objection

79 More Documents Available

 

Docket Entries

  • 06/10/2019
  • Docketat 08:30 AM in Department 37; Final Status Conference - Not Held - Advanced and Continued - by Court

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  • 04/24/2019
  • Docketat 08:30 AM in Department 37; (Motion for Judgment) - Not Held - Advanced and Vacated

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  • 04/10/2019
  • Docketat 08:30 AM in Department 37; Hearing on Motion for Summary Judgment - Not Held - Vacated by Court

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  • 04/04/2019
  • Docketat 08:30 AM in Department 37; Hearing on Motion to Strike (not anti-SLAPP) - without Demurrer

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  • 04/02/2019
  • DocketAnswer; Filed by Carl's Jr. Restauratns LLC Doe 1 (Defendant)

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  • 04/02/2019
  • DocketAnswer; Filed by Akash Management, LLC (Defendant)

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  • 04/02/2019
  • DocketAnswer; Filed by CKE Restaurants Holdings Inc (Defendant)

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  • 03/29/2019
  • Docketat 08:30 AM in Department 37; Hearing on Demurrer - without Motion to Strike - Not Held - Advanced and Continued - by Court

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  • 03/28/2019
  • Docketat 08:30 AM in Department 37; Hearing on Demurrer - without Motion to Strike - Not Held - Advanced and Continued - by Court

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  • 03/21/2019
  • Docketat 08:30 AM in Department 37; Hearing on Demurrer - without Motion to Strike ((First Amended Complaint)) - Held - Taken under Submission

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111 More Docket Entries
  • 09/05/2017
  • DocketNotice of Case Management Conference; Filed by Clerk

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  • 08/04/2017
  • DocketAnswer; Filed by CKE Restaurants Holdings Inc (Defendant)

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  • 08/04/2017
  • DocketAMENDMENT TO COMPLAINT

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  • 08/04/2017
  • DocketDEFENDANT CKE RESTAURANTS HOLDINGS, INC.'S ANSWER TO PLAINTIFF CARMEN LIZA'S COMPLAINT

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  • 08/04/2017
  • DocketAmendment to Complaint; Filed by Carmen Liza (Plaintiff)

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  • 07/26/2017
  • DocketPROOF OF SERVICE SUMMONS

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  • 07/26/2017
  • DocketProof-Service/Summons; Filed by Carmen Liza (Plaintiff)

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  • 06/22/2017
  • DocketSUMMONS

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  • 06/22/2017
  • DocketCOMPLAINT FOR DAMAGES FOR: 1. DISCRIMINATION IN VIOLATION OF GOV'T CODE 12940 ET SEQ.; ETC

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  • 06/22/2017
  • DocketComplaint; Filed by Carmen Liza (Plaintiff)

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Tentative Rulings

b"

Case Number: ****6232 Hearing Date: December 23, 2021 Dept: 37

HEARING DATE: December 23, 2021

CASE NUMBER: ****6232

CASE NAME: Carmen Liza v. CKE Restaurant Holdings, Inc., et al.

MOVING PARTY: Plaintiff, Carmen Liza

OPPOSING PARTIES: Defendants, CKE Restaurant Holdings, Inc., Carl’s Jr. Restaurants, LLC and Akash Management, LLC

TRIAL DATE: None

PROOF OF SERVICE: OK

MOTION: Plaintiff’s Motion to Tax Costs

OPPOSITION: December 10, 2021

REPLY: December 16, 2021

TENTATIVE: Plaintiff’s motion is granted. Defendants’ memorandum of costs is taxed in its entirety. Plaintiff is to give notice.

Background

This action arises out of Plaintiff, Carmen Liza’s (“Plaintiff”) employment with a Carl’s Jr. Restaurant, “Unit 66”. Defendant, CKE Restaurant Holdings, Inc. (“CKE”), Carl’s Jr. Restaurants, LLC (“Carl’s Jr.”) and Akash Management, LLC (“Akash”) allegedly own and operate chains of restaurants, including Carl’s Jr restaurants. Further, Akash was allegedly an agent, joint employer and/or alter ego of Carl’s Jr. and/or CKE, and that a unity of interest and ownership exists amongst all of them.

According to Plaintiff’s operative First Amended Complaint (“FAC”), Plaintiff was hired by CKE and Carl’s Jr. as a cook in or about November 2014 and performed satisfactorily. Thereafter, Plaintiff suffered an injury on or about March 6, 2016 and was placed on medical leave until April 24, 2016. The FAC alleges that while Plaintiff continued to recover and requested reasonable accommodations to facilitate her return to work, CKE and Carl’s Jr. refused to provide these accommodations and eventually terminated her prior to her April 24, 2016 return date. Finally, the FAC specifically alleges with respect to Akash that Akash allegedly acquired Unit 66 on April 18, 2016, and that “practically all former employees of Unit 66 except for Plaintiff maintained their previous positions.”

Plaintiff’s FAC alleges nine causes of action as follows: (1) discrimination violation of the Fair Employment Housing Act (“FEHA”) (Government Code 12940, et seq.), (2) retaliation in violation of the FEHA, (3) failure to prevent discrimination and retaliation in violation of the FEHA, (4) failure to provide reasonable accommodation in violation of the FEHA, (5) failure to engage in a good faith interactive process in violation of the FEHA, (6) wrongful termination in violation of public policy, (7) declaratory judgment, (8) failure to permit inspection of personnel and payroll records (Labor Code 1198.5, 226(c)(f) and 432), (9) failure to hire in violation of the FEHA. The ninth cause of action is alleged against Akash only, while the remaining causes of action are alleged against all defendants.

On March 10, 2021, CKE, Carl’s Jr. and Akash’s (“Defendants”) motions for summary judgment (“MSJ”) were granted. On April 10, 2021, the court issued an Order Regarding Entry of Judgment. (the “Order”) The Order indicated that judgment was entered on Defendants’ MSJs on this date and that Defendants were to give notice.

On May 17, 2021, Defendants filed Notice of Entry of Judgment. On May 26, 2021, Plaintiff filed a Notice of Appeal of the court’s ruling on Defendants’ MSJs. On June 1, 2021, Defendants filed a Motion for Attorney’s Fees.

On November 12, 2021, Defendants’ Motion for Attorney’s Fees was denied.

Plaintiff now moves to tax Defendants’ Memorandum of Costs. Defendants oppose the motion.

Request for Judicial Notice

Defendants request judicial notice of the following in support of their opposition:

  1. Plaintiff’s first amended complaint (“FAC”) filed with this Court on January 30, 2019. (Exhibit A)

  2. Plaintiff’s Complaint of Employment Discrimination filed before the State of California Department of Fair Employment and Housing under the California Fair Employment and Housing Act, and corresponding Right to Sue Notice dated April 12, 2017, DFEH Matter Number 819507-283792, filed with the California Department of Fair Employment and Housing against CKE Restaurants Holdings, Inc. (Exhibit B)

  3. Plaintiff’s original complaint filed with this Court on June 22, 2017. (Exhibit C)

  4. Plaintiff’s Amended Complaint of Employment Discrimination filed before the State of California Department of Fair Employment and Housing under the California Fair Employment and Housing Act, and corresponding Right to Sue Notice dated August 3, 2017, DFEH Matter Number 819507-283792, filed with the California Department of Fair Employment and Housing against CKE Restaurants Holdings, Inc. and Carl’s Jr. Restaurants LLC (Exhibit D)

  5. Plaintiff’s Amended Complaint of Employment Discrimination filed before the State of California Department of Fair Employment and Housing under the California Fair Employment and Housing Act, and corresponding Right to Sue Notice dated September 18, 2018, , filed with the California Department of Fair Employment and Housing against Akash Management, LLC. (Exhibit E)

  6. The Notice of the Court’s Ruling on Carl’s Jr.’s motion for judgment on the pleadings and Akash’s demurrer filed with the court on December 18, 2018. (Exhibit F)

  7. The Court’s 3/21/19 Minute Order Ruling on Defendants’ demurrers to the FAC. (Exhibit G)

  8. April 20, 2021 Court Order Regarding Entry of Judgment entered in this action. (Exhibit H)

  9. Defendants’ Notice of Entry of Judgment (attaching the March 10, 2021 Order granting Defendants’ Motions for Summary Judgment as Exhibit “A”) (Exhibit I)

  10. Plaintiff’s Doe Amendment 1 naming Carl’s Jr. filed on August 4, 2017. (Exhibit J).

    Defendants’ request is granted. The existence and legal significance of these documents are proper matters for judicial notice. (Evidence Code 452, subds. (d), (h).)

    Timeliness

  1. Timeliness of Cost Memorandum

    Pursuant to California Rules of Court, rule 3.1700(a)(1): “[a] prevailing party who claims costs must serve and file a memorandum of costs within 15 days after the date of service of the notice of entry of judgment or dismissal by the clerk under Code of Civil Procedure section 664.5 or the date of service of written notice of entry of judgment or dismissal, or within 180 days after entry of judgment, whichever is first. The memorandum of costs must be verified by a statement of the party, attorney, or agent that to the best of his or her knowledge the items of cost are correct and were necessarily incurred in the case.”

    Plaintiff asserts that Defendants’ Memorandum of Costs is untimely because Defendant CKE was the only party to file a Memorandum of Costs on June 1, 2021, 42 days after the clerk of the court gave notice of entry of judgment. (Motion, 6.) According to Plaintiff the clerk’s Notice of Entry of Judgment on April 20, 2021 rather than Defendants’ later Notice of Entry of Judgment on May 17, 2021 controls because it is the earlier date. (Id.)

    In opposition, Defendants assert that the Memorandum of Costs is timely because it was filed within 15 days after Defendants’ Notice of Entry of Judgment. Additionally, Defendants assert that it is timely because the clerk’s Notice of Entry of Judgment on April 20, 2021 directed Defendants to give notice but was served on Plaintiff only.

    The court finds that the Memorandum of Costs was timely. California Rules of Court, rule 3.1700 requires that the Memorandum of Costs be filed within 14 days after service of the Notice of Entry of Judgment. However, the April 20, 2021 Notice of Entry of Judgment was not served on defense counsel. Thus, the Memorandum of Costs filed on June 2, 2021 is timely.

  2. Timeliness of Motion

    Pursuant to California Rules of Court, rule 3.1700(b), “[a]ny notice of motion to strike or to tax costs must be served and filed 15 days after service of the cost memorandum,” with extensions for the manner of service. (Cal. Rules of Court, rule 3.1700(b)(1); Code Civ. Proc., 1013, subd. (a).)

    Defendants filed their Memorandum of Costs on June 2, 2021 along with their Motion for Attorney’s Fees and attached as Exhibit K to the declaration of Miko Sargizian, which was served by email. Plaintiff’s Motion to Tax Costs was filed on June 18, 2021. Thus, Plaintiff’s motion is timely.

Discussion

  1. Legal Standard

    Code of Civil Procedure, section 1032 allows for the recovery of costs by a prevailing party as a matter of right. (Code Civ. Proc., 1032.) “ ‘Prevailing party’ includes the party with a net monetary recovery, a defendant in whose favor a dismissal is entered, a defendant where neither plaintiff nor defendant obtains any relief, and a defendant as against those plaintiffs who do not recover any relief against that defendant.” (Id. 1032, subd. (a)(4).) Pursuant to Code of Civil Procedure section 1033.5, subdivision (a)(10)(B)-(C), attorney’s fees are recoverable as costs when authorized by “statute” or “law.”

    California follows the “American rule,” pursuant to which litigants ordinarily pay their own attorney fees. (Musaelian v. Adams (2009) 45 Cal.4th 512, 516.) Thus, a request for attorney fees must be based on either a statutory or contractual provision authorizing their recovery. (See Code Civ. Proc., 1021.) Government Code, section 12965 authorizes an award of attorney fees and costs to the prevailing party in any action brought under the FEHA. (Gov. Code, 12965, subd. (b).) “The language, purpose and intent of California and federal antidiscrimination acts are virtually identical. Thus, in interpreting FEHA, California courts have adopted the methods and principles developed by federal courts in employment discrimination claims arising under title VII of the federal Civil Rights Act….” (Cummings v. Benco Building Servs. (1992) 11 Cal.App.4th 1383, 1386 (Cummings).) “A trial court's award of attorney fees and costs under this section is subject to an abuse of discretion standard.” (Id. at p. 1387.)

    California Courts have recognized that the purpose of the fee provision was “to make it easier for a plaintiff of limited means to bring a meritorious suit to vindicate a policy the Congress considered of the greatest importance.” (Cummings, 11 Cal.App.4th at p. 1387, citing Christianburg Garment Co. v. Equal Employment Opportunity Comm’n (1978) 434 U.S. 412, 418 (Christianburg).) Because these equitable considerations do not apply for a prevailing defendant, Courts have found that attorney’s fees for a prevailing defendant “should be permitted ‘not routinely, not simply because he succeeds, but only where the action brought is found to be unreasonable, frivolous, meritless or vexatious.’ ” (Cummings, 11 Cal.4th at p. 1387, quoting Christianburg, 434 U.S. at p. 421.) “[T]he term ‘meritless’ is to be understood as meaning groundless or without foundation, rather than simply that the plaintiff has ultimately lost his case, and that the term ‘vexatious’ in no way implies that the plaintiff’s subjective bad faith is a necessary prerequisite to a fee award against him. In sum, a district court may in its discretion award attorney’s fees to a prevailing defendant in a Title VII case upon a finding that the plaintiff’s action was frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith.” (Cummings, 11 Cal.4th at p. 1387.) “In applying these criteria, it is important that a district court resist the understandable temptation to engage in post hoc reasoning by concluding that, because a plaintiff did not ultimately prevail, his action must have been unreasonable or without foundation.” (Id. at p. 1388.)

  2. Analysis

Government Code section 12965, subdivision (b) provides in pertinent part:

In civil actions brought under this section, the court, in its discretion, may award to the prevailing party, including the department, reasonable attorney’s fees and costs, including expert witness fees, except that, notwithstanding Section 998 of the Code of Civil Procedure, a prevailing defendant shall not be awarded fees and costs unless the court finds the action was frivolous, unreasonable, or groundless when brought, or the plaintiff continued to litigate after it clearly became so.

(Government Code 12965, subd. (b).)

Plaintiff asserts that Defendants’ Memorandum of Costs should be stricken in its entirety for the following reasons: (1) Defendants are not entitled to costs because this action was not frivolous, without foundation or unreasonable., (2) Defendants’ Code of Civil Procedure section 998 Offer to Compromise was premature, not made in good faith, and thus invalid, and (2) Plaintiff is of limited financial means and would be unable to pay Defendants’ costs. (Motion, 7-12.) Additionally, Plaintiff asserts that Code of Civil Procedure section 998 is inapplicable to this action pursuant to Williams v. Chino Valley Independent Fire Dist. (2015) 61 Cal.4th 97 (Williams).

In Williams, the California Supreme Court concluded that: “ Government Code section 12965, subdivision (b), governs cost awards in FEHA actions, allowing trial courts discretion in awards of both attorney fees and costs to prevailing FEHA parties.” (Id. at 99.) Additionally, the Williams court held that “ in awarding attorney fees and costs, the trial court's discretion is bounded by the rule of Christiansburg; an unsuccessful FEHA plaintiff should not be ordered to pay the defendant's fees or costs unless the plaintiff brought or continued litigating the action without an objective basis for believing it had potential merit.” (Id. at 99-100.)

In opposition, Defendants contend that Plaintiff’s motion must be denied because Government Code section 12965’s requirement that costs not be awarded unless an action is frivolous does not apply to cases filed before January 1, 2019. (Opposition, 12-13.) Defendants cite to cases, including Holman v. Altana Pharma US, Inc., (2010) 186 Cal.App.4th 262, 281 (Holman) and Martinez v. Eatlite One, Inc., (2018) 27 Cal. App. 5th 1181, 1185-1186 (Martinez) in support of this argument.

In Holman, Plaintiff sued her former employer alleging causes of action under the FEHA. (Holman, supra, 186 Cal.App.4th at 264.) Defendant’s motion for summary adjudication was granted on Plaintiff’s claim for hostile work environment harassment. (Id. at 265.) After close of evidence, Defendant’s motion for nonsuit was granted and Defendant was awarded expert witness fees as costs pursuant to Code of Civil Procedure section 998. (Id.) In discussing whether a prevailing employer must show that Plaintiff’s case was frivolous before recovering expert witness fees under Code of Civil Procedure section 998, the Court of Appeal concluded that the trial court was still required to consider Defendant’s request for expert witness fees under Code of Civil Procedure section 998 even if Plaintiff’s claims were not frivolous. (Id. at 277-280.)This is because there is nothing in Government Code section 12965 expressly prohibiting recovery of expert witness fees to a prevailing FEHA defendant pursuant to Code of Civil Procedure section 998. (Id. at 281.)

Thus, Holman does not stand for the proposition that a court is required to consider Defendants’ request for costs regardless of whether Plaintiffs’ case has been determined to be frivolous. Holman’s ruling is limited to its facts, as the Court of Appeal found that the trial court properly exercised its discretion in that instance to award the prevailing defendant its expert witness fees as costs. The California Supreme Court’s ruling in Williams still controls and stands for the general principle that a defendant may not recover fees in a FEHA case absent a determination that Plaintiff’s case was frivolous.

Defendants’ reliance on Martinez is misplaced, as Martinez did not discuss the applicability of Government Code section 12965 to a prevailing Defendant’s request for attorney’s fees. Instead, Martinez only analyzed the issue of which costs and other amounts are to be compared in determining whether a Defendant prevailed for purposes of awarding costs under Code of Civil Procedure section 998. (Martinez, supra, 27 Cal.App.5th at 1185-86.) Thus, Martinez is not applicable to the instant motion.

In reply, Plaintiff asserts that the instant motion must be granted because the court found on November 12, 2021 that Plaintiff’s claims were not frivolous as part of its ruling denying Defendants’ Motion for Attorney’s Fees. (Reply, 1.) According to Plaintiff, Government code section 12965 is clear that neither fees nor costs may be awarded unless a Plaintiff’s claims are “frivolous, unreasonable, or groundless when brought, or the plaintiff continued to litigate after it clearly became so.” (Id.)

As Plaintiff correctly points out, the court previously found that Plaintiff’s action was not frivolous, unreasonable, or groundless when brought, or that Plaintiff continued to litigate her case after it clearly became so. The court denied Defendants’ motion for attorney’s fees based on this finding.

Pursuant to Williams, Defendants may recover neither fees nor costs absent a determination that Plaintiff’s case was frivolous, unreasonable, or groundless when brought, or that Plaintiff continued to litigate her case after it clearly became so. Thus, Plaintiff’s motion is granted.

Having granted Plaintiff’s motion on this basis, the court does not address the remainder of the parties’ arguments.

Conclusion

Plaintiff’s motion is granted. Defendants’ memorandum of costs is taxed in its entirety. Plaintiff is to give notice.

"


b"

Case Number: ****6232 Hearing Date: November 12, 2021 Dept: 37

HEARING DATE: November 12, 2021

CASE NUMBER: ****6232

CASE NAME: Carmen Liza v. CKE Restaurant Holdings, Inc., et al.

MOVING PARTIES: Defendants, CKE Restaurant Holdings, Inc., Carl’s Jr. Restaurants, LLC and Akash Management, LLC

OPPOSING PARTY: Plaintiff, Carmen Liza

TRIAL DATE: None

PROOF OF SERVICE: OK

MOTION: Defendant’s Motion for Attorney Fees

OPPOSITION: October 29, 2021

REPLY: November 4, 2021

TENTATIVE: Defendants’ motion is denied. Defendant is to give notice.

Background

This action arises out of Plaintiff, Carmen Liza’s (“Plaintiff”) employment with a Carl’s Jr. Restaurant, “Unit 66”. Defendant, CKE Restaurant Holdings, Inc. (“CKE”), Carl’s Jr. Restaurants, LLC (“Carl’s Jr.”) and Akash Management, LLC (“Akash”) allegedly own and operate chains of restaurants, including Carl’s Jr restaurants. Further, Akash was allegedly an agent, joint employer and/or alter ego of Carl’s Jr. and/or CKE, and that a unity of interest and ownership exists amongst all of them.

According to Plaintiff’s operative First Amended Complaint (“FAC”), Plaintiff was hired by CKE and Carl’s Jr. as a cook in or about November 2014 and performed satisfactorily. Thereafter, Plaintiff suffered an injury on or about March 6, 2016 and was placed on medical leave until April 24, 2016. The FAC alleges that while Plaintiff continued to recover and requested reasonable accommodations to facilitate her return to work, CKE and Carl’s Jr. refused to provide these accommodations and eventually terminated her prior to her April 24, 2016 return date. Finally, the FAC specifically alleges with respect to Akash that Akash allegedly acquired Unit 66 on April 18, 2016, and that “practically all former employees of Unit 66 except for Plaintiff maintained their previous positions.”

Plaintiff’s FAC alleges nine causes of action as follows: (1) discrimination violation of the Fair Employment Housing Act (“FEHA”) (Government Code ;;12940, et seq.), (2) retaliation in violation of the FEHA, (3) failure to prevent discrimination and retaliation in violation of the FEHA, (4) failure to provide reasonable accommodation in violation of the FEHA, (5) failure to engage in a good faith interactive process in violation of the FEHA, (6) wrongful termination in violation of public policy, (7) declaratory judgment, (8) failure to permit inspection of personnel and payroll records (Labor Code ;;1198.5, 226(c)(f) and 432), (9) failure to hire in violation of the FEHA. The ninth cause of action is alleged against Akash only, while the remaining causes of action are alleged against all defendants.

On March 10, 2021, CKE, Carl’s Jr. and Akash’s (“Defendants”) motions for summary judgment (“MSJ”) were granted. On May 26, 2021, Plaintiff filed a Notice of Appeal of the court’s ruling on Defendants’ MSJs.

Defendants now move for attorney fees and costs in the amount of $350,155.51. Plaintiff opposes the motion.

Evidentiary Objections

Defendants’ Objections to Declaration of Sylvia Panosian

Objection 1: sustained in part as to everything except the first and last sentence.

Objection 2: overruled.

Objection 3: sustained.

Objection 4: sustained.

Objection 5: sustained.

Objection 6: sustained.

Objection 7: sustained except as to the last sentence.

Objection 8: sustained.

Objection 9: overruled.

Objection 10: sustained.

Discussion

  1. Legal Standard

Pursuant to Code of Civil Procedure section 1033.5, subdivision (a)(10)(B)-(C), attorney’s fees are recoverable as costs when authorized by “statute” or “law.”

California follows the “American rule,” pursuant to which litigants ordinarily pay their own attorney fees. (Musaelian v. Adams (2009) 45 Cal.4th 512, 516.) Thus, a request for attorney fees must be based on either a statutory or contractual provision authorizing their recovery. (See Code Civ. Proc., ; 1021.) Government Code, section 12965 authorizes an award of attorney fees and costs to the prevailing party in any action brought under the FEHA. (Gov. Code, ; 12965, subd. (b).) “The language, purpose and intent of California and federal antidiscrimination acts are virtually identical. Thus, in interpreting FEHA, California courts have adopted the methods and principles developed by federal courts in employment discrimination claims arising under title VII of the federal Civil Rights Act….” (Cummings v. Benco Building Servs. (1992) 11 Cal.App.4th 1383, 1386 (Cummings).) “A trial court's award of attorney fees and costs under this section is subject to an abuse of discretion standard.” (Id. at p. 1387.)

California Courts have recognized that the purpose of the fee provision was “to make it easier for a plaintiff of limited means to bring a meritorious suit to vindicate a policy the Congress considered of the greatest importance.” (Cummings, 11 Cal.App.4th at p. 1387, citing Christianberg Garment Co. v. Equal Employment Opportunity Comm’n (1978) 434 U.S. 412, 418 (Christianberg).) Because these equitable considerations do not apply for a prevailing defendant, Courts have found that attorney’s fees for a prevailing defendant “should be permitted ‘not routinely, not simply because he succeeds, but only where the action brought is found to be unreasonable, frivolous, meritless or vexatious.’ ” (Cummings, 11 Cal.4th at p. 1387, quoting Christianberg, 434 U.S. at p. 421.) “[T]he term ‘meritless’ is to be understood as meaning groundless or without foundation, rather than simply that the plaintiff has ultimately lost his case, and that the term ‘vexatious’ in no way implies that the plaintiff’s subjective bad faith is a necessary prerequisite to a fee award against him. In sum, a district court may in its discretion award attorney’s fees to a prevailing defendant in a Title VII case upon a finding that the plaintiff’s action was frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith.” (Cummings, 11 Cal.4th at p. 1387.) “In applying these criteria, it is important that a district court resist the understandable temptation to engage in post hoc reasoning by concluding that, because a plaintiff did not ultimately prevail, his action must have been unreasonable or without foundation.” (Id. at p. 1388.)

  1. Whether Plaintiff’s Claims were Frivolous, Unreasonable, and Without Foundation

Defendants contend that Plaintiff’s claims were frivolous, unreasonable and without foundation for the following reasons: (1) Plaintiff’s W-2 identifies Carl’s Jr. as Plaintiff’s employer, (2) Plaintiff failed to timely file her DFEH Complaint against Carl’s Jr. despite this knowledge, (3) Defendants put Plaintiff on notice that her claims lacked merit through meet and confer efforts, the filing of a Motion for Judgment on the Pleadings and through demurrers, (4) Plaintiff “recklessly rejected” Defendants’ Code of Civil Procedure section 998 Offer to Compromise (“998 Offer”), which is further evidence that her claims lacked merit. (Motion, 7-12.)

In opposition, Plaintiff asserts that her initial suit against CKE was not frivolous because there is ample evidence that CKE was Plaintiff’s employer. (Opposition, 10-11.) Specifically, Plaintiff contends that CKE sent correspondence in its name to Plaintiff regarding benefits, oversaw the day-to-day operations of Carl’s Jr. units and processed Plaintiff’s leave of absence requests. (Opposition, 10.) Additionally, Plaintiff asserts that other employees such as Julie O’Hagan testified that they also worked for CKE. (Opposition, 10-11.) Additionally, Plaintiff asserts that her claim regarding her amended DFEH Complaint relating back is reasonable because Plaintiff did not learn of the true identity of Akash until the August 15, 2018 deposition of Sarai Balcazar. (Opposition, 11-12.) Plaintiff also argues that it was reasonable to argue that Akash is the successor of CKE and Carl’s Jr. because there is evidence that Akash agreed to assume debts and liabilities for these entities. (Opposition, 12-13.)

On August 17, 2018, Defendant CKE and Carl’s Jr served Plaintiff a 998 Offer. The 998 Offer provided that in exchange for payment of $100,000, Plaintiff would file a request for dismissal with prejudice of all claims asserted against Defendants. (Declaration of Miko Sargizian, Exh. J.) Plaintiff did not respond to this offer.

On March 21, 2019, Defendants’ demurrer to the FAC was overruled. The court specifically found that “[a]lthough Plaintiff will be required to prove her allegations at a later stage of the proceedings, these allegations of ultimate fact are sufficient at the pleading stage for Plaintiff to plead that Akash is a “substantially identical party” to CKE.” (March 21, 2019 Minute Order, p. 6.) Thus, Defendants’ arguments that its prior demurrers put Plaintiff on notice of the frivolous nature of her lawsuit fails. While Plaintiff’s case did not succeed, the ruling on Defendants’ demurrer does not demonstrate that Plaintiff’s case was objectively frivolous from the onset.

The court finds that Defendants have failed to meet their burden to demonstrate that Plaintiff’s claims objectively lacked foundation from the inception of the case, were maintained unreasonably, or were without merit.

Specifically, the court accepts Plaintiff’s representation that she believed CKE to be her employer based on testimony from other employees and correspondence from CKE. Although such evidence was insufficient to establish a triable issue as to CKE’s liability for purposes of summary judgment, the court finds that Plaintiff had some basis to believe in her claims against CKE based on such evidence. As discussed above, the court also rejects Defendants’ argument that Plaintiff maintained her claims unreasonably after the court ruled on Defendants’ demurrers. The court’s ruling on Defendants’ demurrers demonstrated that Plaintiff’s Complaint was not defective on its face and thus, does not constitute notice that Plaintiff’s claims were maintained unreasonably going forward.

Further, Defendants’ argument that Plaintiff’s failure to respond to the 998 Offer constituted a “reckless” rejection fails. Defendants do not demonstrate that Plaintiff affirmatively rejected the 998 Offer. Rather, it is undisputed that the 998 Offer was not responded to. Plaintiff not accepting the 998 Offer does not constitute evidence that her claims were frivolous from the onset.

Additionally, the court accepts Plaintiff’s representation that she did not learn of Akash until after initial discovery as sufficient explanation for why Plaintiff had some basis to believe in her claims against Akash. According to Plaintiff’s counsel Sylvia Panosian, Plaintiff first learned of Akash during the deposition of Sarai Balcazar. (Panosian Decl. ¶ 2; Exh. 1.) Ms. Balcazar testified that she is currently district manager for Akash and previously worked for CKE. (Panosian Decl., Exh. 1, 15:4-5, 15:18-25, 16:18-20.) Defendants assert that Plaintiff’s claim against Akash was frivolous because Plaintiff testified that she had never applied for a job with Akash. However, Plaintiff’s testimony was as follows:

Q: Did anyone ever tell you the name of the new owner of the Van Ness location?

A: No.

Q: Did you ever attempt to apply for a job with that new owner?

A: No.

(Sargizian Decl., Exh. F, 413:14-24.) Thus, while Plaintiff did testify that she did not apply for a job “with the new owner,” Plaintiff also testified that she did not know Akash’s name. Defendants do not otherwise demonstrate how Plaintiff’s claims against Akash were frivolous or maintained unreasonably.

Having found that Plaintiff’s claims against Defendants were not frivolous, unreasonable or maintained without foundation, Defendants’ motion is denied. Thus, the court does not address the remainder of the parties arguments regarding the reasonableness of Defendants’ requested fees.

Conclusion

Defendants’ motion is denied. Defendant is to give notice.

"


Case Number: ****6232    Hearing Date: March 10, 2021    Dept: 37

HEARING DATE: March 10, 2021

CASE NUMBER: ****6232

CASE NAME: Carmen Liza v. CKE Restaurant Holdings, Inc., et al.

TRIAL DATE: August 24, 2021

PROOF OF SERVICE: OK

MOTION: Defendant CKE’s Motion for Summary Judgment or, in the alternative, Summary Adjudication

MOVING PARTY: Defendant, CKE Restaurant Holdings, Inc.

OPPOSING PARTY: Plaintiff, Carmen Liza

OPPOSITION: February 24, 2021

REPLY: No opposition filed.

TENTATIVE: CKE’s motion is granted. CKE is to give notice and prepare a judgment.

MOTION: Defendant Akash’s Motion for Summary Judgment or, in the alternative, Summary Adjudication

MOVING PARTY: Defendant, Akash Management, LLC

OPPOSING PARTY: Plaintiff, Carmen Liza

OPPOSITION: February 24, 2021

REPLY: No opposition filed.

TENTATIVE: Akash’s motion is granted. Akash is to give notice and prepare a proposed judgment.

MOTION: Defendant Carl’s Jr.’s Motion for Summary Judgment or, in the alternative, Summary Adjudication

MOVING PARTY: Defendant, Carl’s Jr. Restaurants, LLC

OPPOSING PARTY: Plaintiff, Carmen Liza

OPPOSITION: February 24, 2021

REPLY: No opposition filed.

TENTATIVE: Carl’s Jr.’s motion is granted. Carl’s Jr. is to give notice and prepare a judgment.

Background

This action arises out of Plaintiff, Carmen Liza’s (“Plaintiff”) employment with at a Carl’s Jr. Restaurant, “Unit 66”. Defendant, CKE Restaurant Holdings, Inc. (“CKE”), Carl’s Jr. Restaurants, LLC (“Carl’s Jr.”) and Akash Management, LLC (“Akash”) allegedly own and operate chains of restaurants, including Carl’s Jr restaurants. Further, Akash was allegedly an agent, joint employer and/or alter ego of Carl’s Jr. and/or CKE, and that a unity of interest and ownership exists amongst all of them. 

According to Plaintiff’s operative First Amended Complaint (“FAC”), Plaintiff was hired by CKE and Carl’s Jr. as a cook in or about November 2014 and performed satisfactorily. Thereafter, Plaintiff suffered an injury on or about March 6, 2016 and was placed on medical leave until April 24, 2016. The FAC alleges that while Plaintiff continued to recover and requested reasonable accommodations to facilitate her return to work, CKE and Carl’s Jr. refused to provide these accommodations and eventually terminated her prior to her April 24, 2016 return date. Finally, the FAC specifically alleges with respect to Akash that Akash allegedly acquired Unit 66 on April 18, 2016, and that “practically all former employees of Unit 66 except for Plaintiff maintained their previous positions.” 

Plaintiff’s FAC alleges nine causes of action as follows: (1) discrimination violation of the Fair Employment Housing Act (“FEHA”) (Government Code ;;12940, et seq.), (2) retaliation in violation of the FEHA, (3) failure to prevent discrimination and retaliation in violation of the FEHA, (4) failure to provide reasonable accommodation in violation of the FEHA, (5) failure to engage in a good faith interactive process in violation of the FEHA, (6) wrongful termination in violation of public policy, (7) declaratory judgment, (8) failure to permit inspection of personnel and payroll records (Labor Code ;;1198.5, 226(c)(f) and 432), (9) failure to hire in violation of the FEHA. The ninth cause of action is alleged against Akash only, while the remaining causes of action are alleged against all defendants.

CKE, Carl’s Jr., and Akash each now move for summary judgment or, in the alternative, summary adjudication. Plaintiff opposes each motion. The court will address each motion individually.

CKE’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION

CKE moves for summary judgment on Plaintiff’s FAC or, alternatively, summary adjudication, as follows:

  1. Plaintiff’s First Cause of Action for Discrimination Pursuant to FEHA Fails As A Matter Of Law, Because CKE Never Employed Plaintiff,

  2. Plaintiff’s Second Cause of Action for Retaliation Pursuant to FEHA Fails As A Matter Of Law, Because CKE Never Employed Plaintiff,

  3. Plaintiff’s Third Cause of Action for Failure to Prevent Discrimination and Retaliation Pursuant to FEHA Fails As A Matter Of Law, Because CKE Never Employed Plaintiff.

  4. Plaintiff’s Fourth Cause of Action for Failure to Provide Reasonable Accommodation Pursuant to FEHA Fails As A Matter Of Law, Because CKE Never Employed Plaintiff,

  5. Plaintiff’s Fifth Cause of Action for Failure to Engage in Good Faith Interactive Process Pursuant to FEHA Fails As A Matter Of Law, Because CKE Never Employed Plaintiff,

  6. Plaintiff’s Sixth Cause of Action for Wrongful Termination In Violation Of Public Policy Fails As A Matter Of Law, Because CKE Never Employed Plaintiff,

  7. Plaintiff’s Seventh Cause of Action for Declaratory Relief Fails As A Matter Of Law, Because CKE Never Employed Plaintiff,

  8. Plaintiff’s Eighth Cause of Action for Failure to Permit Inspection of Personnel and Payroll Records Fails As A Matter Of Law, Because CKE Never Employed Plaintiff,

  9. Plaintiff’s First Cause of Action for Discrimination Pursuant to FEHA Fails As A Matter Of Law, Because Plaintiff Cannot Establish A Prima Facie Case Or That The Reasons For Her Separation Were Pretextual,

  10. Plaintiff’s Second Cause of Action for Retaliation Pursuant to FEHA Fails As A Matter Of Law, Because Plaintiff Cannot Establish A Prima Facie Case Or That The Reasons For Her Separation Were Pretextual,

  11. Plaintiff’s Third Cause of Action for Failure to Prevent Discrimination and Retaliation Pursuant to FEHA Fails As A Matter Of Law, Because Plaintiff Cannot Establish A Prima Facie Case Or That The Reasons For Her Separation Were Pretextual,

  12. Plaintiff’s Fourth Cause of Action for Failure to Provide Reasonable Accommodation Pursuant to FEHA Fails As A Matter Of Law, Because Plaintiff Cannot Establish A Prima Facie Case Or That The Reasons For Her Separation Were Pretextual,

  13. Plaintiff’s Fifth Cause of Action for Failure to Engage in Good Faith Interactive Process Pursuant to FEHA Fails As A Matter Of Law, Because Plaintiff Cannot Establish A Prima Facie Case Or That The Reasons For Her Separation Were Pretextual.,

  14. Plaintiff’s Sixth Cause of Action for Wrongful Termination Fails As A Matter Of Law, Because Plaintiff Cannot Establish A Prima Facie Case Or That The Reasons For Her Separation Were Pretextual.

  15. Plaintiff’s Seventh Cause of Action for Declaratory Relief Fails As A Matter Of Law, Because Plaintiff Cannot Establish A Prima Facie Case Or That The Reasons For Her Separation Were Pretextual.

  16. Plaintiff’s Seventh Cause of Action for Declaratory Relief Fails As A Matter Of Law, Because It Concerns Past Acts And No Present Controversy Exists.,

  17. Plaintiff’s Eighth Cause of Action for Failure to Permit Inspection Of Personnel And Payroll Records Fails As A Matter Of Law, Because Plaintiff Never Requested Such Records From Carl’ Jr,

  18. Plaintiff’s Punitive Damages Claim Fails As A Matter Of Law, Because She Cannot Establish With Clear and Convincing Evidence That CKE Engaged in Fraud, Malice, or Oppression,

  19. Plaintiff’s Punitive Damages Claim Fails As A Matter Of Law, Because She Cannot Establish That Any Decision to Which She Objects Was Made Or Ratified By An Officer, Director, or Managing Agent of CKE.

    CKE’s notice of motion does not comply with California Code of Civil Procedure, section 437c(f)(1). Code of Civil Procedure, section 437c(f)(1) provides that “A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty.” Many of CKE’s noticed issues, such as issues 7, 15 and 16, address the same causes of action. Thus, the court will address the parties’ arguments according to the FAC’s causes of action and Plaintiff’ prayer for punitive damages.

    Evidentiary Objections

    Plaintiff’s Objections to Declaration of Julie O’Hagan

    Overruled: 1-7, 9-13

    Sustained: 8

Plaintiff’s Objections to Transcript of Plaintiff’s Deposition

Overruled: 14-17

Sustained:

Plaintiff’s Objections to Transcript of O’Hagan Deposition

Overruled: 18-24

Sustained:

CKE Objections to Declaration of Rhett Francisco

Overruled: 6

Sustained: 1-2, 4-5, 7-8

Sustained in part: 3, 9-14.

Objection 3: The narrative from P’s UMF is really an argument and summary of evidence, not a fact, and the objection to it is sustained. Any objection to the deposition testimony cited is overruled.

Objection 9-14: Plaintiff has violated CRC 3.1116(b), but that is not grounds to object to the entire declaration; however, only those pages, and lines mentioned in the separate statements will be considered, as the court is not obligated to review the entire transcript and Defendant does not have fair notice of which portions to object to if not specifically mentioned.

Request for Judicial Notice

CKE requests the court to take judicial notice of the following in support of its motion:

  1. Plaintiff’s first amended complaint (“FAC”)

  2. The Court’s 3/21/19 Minute Order Ruling on Defendants’ demurrers to the FAC.

    CKE’s request is granted. The existence and legal significance of these documents are proper matters for judicial notice. (Evidence Code ; 452, subds. (d), (h).)

    Discussion

  1. Legal Authority

“The purpose of the law of summary judgment is to provide 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.) Pursuant to Code of Civil Procedure, section 437c, subdivision (a):

A party may move for summary judgment in any action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding. The motion may be made at any time after 60 days have elapsed since the general appearance in the action or proceeding of each party against whom the motion is directed or at any earlier time after the general appearance that the court, with or without notice and upon good cause shown, may direct…. The motion shall be heard no later than 30 days before the date of trial, unless the court for good cause orders otherwise. The filing of the motion shall not extend the time within which a party must otherwise file a responsive pleading.

(Code Civ. Proc., ; 437c, subd. (a).) A motion for summary judgment may be granted “if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., ; 437c, subd. (c).)

“The motion shall be supported by affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken. The supporting papers shall include a separate statement setting forth plainly and concisely all material facts that the moving party contends are undisputed. Each of the material facts stated shall be followed by a reference to the supporting evidence. The failure to comply with this requirement of a separate statement may in the court’s discretion constitute a sufficient ground for denial of the motion.” (Code Civ. Proc., ; 437c, subd. (b)(1); see also Cal. Rules of Court, rule 3.1350(c)(2) & (d).)

In analyzing motions for summary judgment, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent's claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.” (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294 (Hinsley).) Pursuant to Code Civ. Proc., ; 437c, subdivision (p)(2):

A defendant or cross-defendant has met his or her burden of showing that a cause of action has no merit if the party has shown that 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 the cause of action. Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. The plaintiff or cross-complainant shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto.

(Code Civ. Proc., ; 437c, subd. (p)(2).) The court must “view the evidence in the light most favorable to the opposing party and accept all inferences reasonably drawn therefrom.” (Hinesley, 135 Cal.App.4th at p. 294; Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389 [Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.”].) A motion for summary judgment must be denied where the moving party’s evidence does not prove all material facts, even in the absence of any opposition (Leyva v. Sup. Ct. (1985) 164 Cal.App.3d 462, 475) or where the opposition is weak (Salasguevara v. Wyeth Labs., Inc. (1990) 222 Cal.App.3d 379, 384, 387).

  1. Analysis

A. McDonnell Douglas Test and Summary Judgment

“In analyzing an employee’s claim for unlawful discrimination under the FEHA, California courts have adopted the three-stage, burden-shifting test the United States Supreme Court established in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 [Citations.]” (Swanson v. Morongo Unified School Dist. (2014) 232 Cal.App.4th 954, 964 (Swanson).) “This so-called McDonnell Douglas test reflects the principle that direct evidence of intentional discrimination is rare, and that such claims must usually be proved circumstantially. Thus, by successive steps of increasingly narrow focus, the test allows discrimination to be inferred from facts that create a reasonable likelihood of bias and are not satisfactorily explained.” (Swanson, 232 Cal.App.4th at p. 964.)

California Courts have recognized that the McDonnell Douglas test was originally developed for use at trial, not in summary judgment proceedings. (Swanson, 232 Cal.App.4th at p. 965.) “California’s summary judgment law places the initial burden on a moving party defendant to either negate an element of the plaintiff’s claim or establish a complete defense to the claim.” (Id. at pp. 965-966.) “The burdens and order of proof therefore shift under the McDonnell Douglas test when an employer defendant seeks summary judgment. [Citations.] 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.” (Id. at p. 966.) “[T]o avoid summary judgment [on the second of these two grounds], 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.” (Ibid.)

  1. Procedural Considerations: Oversized Memorandum

    As a preliminary note, all Defendants contend that Plaintiffs oppositions are oversized and the court should refuse to consider the portion of Plaintiffs oppositions that exceeds 20 pages. (see CKE Reply, 3.)

    Pursuant to California Rules of Court, rule 3.113, subdivision (d), [e]xcept in a summary judgment or summary adjudication motion, no opening or responding memorandum may exceed 15 pages. In a summary judgment or summary adjudication motion, no opening or responding memorandum may exceed 20 pages. No reply or closing memorandum may exceed 10 pages. The page limit does not include the caption page, the notice of motion and motion, exhibits, declarations, attachments, the table of contents, the table of authorities, or the proof of service.

    Plaintiffs Memorandum in support of her opposition starts on page 5 and concludes on page 23, so the memorandum does not exceed 20 pages.

  2. First Cause of Action: Discrimination under the FEHA

To establish a prima facie case for discrimination under the FEHA, a plaintiff must show that “(1) [he] was a member of a protected class, (2) [he] was qualified for the position [he] sought or was performing competently in the position [he] held, (3) [he] suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some other circumstance suggests discriminatory motive.” (Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 355 (Guz).)

First, the parties’ dispute which entity defendant(s) employed Plaintiff. CKE contends that summary adjudication is warranted with regard to Plaintiff’s first through eighth causes of action on the grounds that CKE was not Plaintiff’s employer. (see Motion, 8-14.) In opposition, Plaintiff contends that CKE was also Plaintiff’s employer based on examining the totality of the circumstances. (Opposition, 13-15.)

CKE contends that Plaintiffs employer was Carls Jr, and that she worked at restaurant unit #66. (Separate Statement in Support of Motion (DSS), ¶¶ 1, 6, 7; Declaration of Julie O’Hagan (“O’Hagan Decl.”), ¶¶ 4-5; Exhibits 1-3 thereto; Declaration of Uliana Kozeychuk (“Kozeychuk Decl.”), Exh. 8 (Plaintiff Depo), 237:3-23, 408:10-13.) Plaintiff’s paystubs attached to the O’Hagan Declaration indicate that her employer was “Carl’s Jr. Restaurants, LLC.” Additionally, Plaintiff testified that she worked for “Carl’s Jr.” (Kozeychuk Decl., Exh. 8 (Plaintiff Depo), 237:3-23.)

Plaintiff disputes this fact and contends that she worked for “Carl’s Jr.” as well as CKE at unit 66. (Separate Statement in Support of Opposition (“PSS”), ¶¶ 1, 6, 7; Exhibits in Support of Opposition (“Opp Exhibits”), Exh 8 (Deposition of David Buffington (“Buffington”)), 18:7-13, 121:2-12; Opp Exhibits, Exh. 2 (O’Hagan Deposition), 25:6-11; Opp Exhibits, Exh. 10 (Employment Handbook), CKE0000002, CKE000007; Opp Exhibits, Exh. 6 (Deposition of CKE Person Most Knowledgeable Marie Garrique (“Garrique”), 62:6-11.)

For example, Julie O’Hagan testified that she currently works for “Carl’s Jr., LLC,” for the last 15 years. (Opp Exhibits, Exh. 1, 14:10-16.) Ms. O’Hagan’s current position is Human resources manager. (Id., 14:17-18.) Ms. O’Hagan also testified as follows regarding her employer:

Q: As far as you know, from 2003 to the present that you’ve worked for Carl’s Jr., has it always been Carl’s Jr., LLC that has been your employer?

A: No.

Q: What other names have been on your paychecks or have been your employer?

A: CKE Restaurants, Inc.

(Opp. Exhibits, Exh. 1, 26:5-11.) However, that was in 2003-2007. (Id. 26:141-16.)

Additionally, Plaintiff points to her Employee Handbook in support of her contention that CKE was also her employer. The Employee Handbook includes the following statement: “I acknowledge that my employment at Carl’s Jr. Restaurants, Inc./Hardee’s Food Systems, Inc. is “at-will.” (Opp. Exhibits, Exh. 10, CKE0000002.) Further, the Employee Handbook also states: “CKE owns and operates Carl’s Jr. and Hardee’s restaurants.” (Opp. Exhibits, Exh. 10, CKE0000007.)

Plaintiff also points to the deposition of David Buffington in support of her argument that CKE was also her employer. Buffington testifies that he is the general counsel for Defendant Akash. (Opp Exhibits, Exh. 8 (Buffington Depo), 7:3-5.) Additionally, Buffington agreed that his point of contact for Carl’s Jr. and CKE is the same person when talking about “due diligence for an acquisition by Akash.” (Opp Exhibits, Exh. 8, 118:7-13.) Buffington also testified that Carl’s Jr. and CKE’s offices are both located in Franklin, Tennessee. (Opp Exhibits, Exh. 8, 121:2-12.) Additionally, Buffington testified that he presumed Bill Werner “had the requisite authority” to enter into an April 2016 agreement on behalf of Carl’s Jr. and CKE. (Separate Statement of Additional Facts (“PSF”), ¶ 23; 95:2- 25, 96:1-6.)

Thus, viewing the evidence submitted in the light most favorable to Plaintiff, the court finds that no triable issue of material fact exists with regard to whether CKE was also Plaintiff’s employer. It is undisputed that CKE and Carl’s Jr. are separate business entities under the law. CKE owns Carl’s Jr. While the evidence shows that CKE participated in divesting Carl’s Jr. of certain stores so that they could be franchised to Akash, none of the evidence submitted creates a triable issue as to whether CKE is the alter ego of Carl’s Jr. or participated in decisions relating to her employment. The evidence is undisputed that when the franchises were sold to Akash, it independently made the decisions about who to hire, and there is no evidence that CKE entered into any agreement about how Akash would or could make those decisions.

Defendant’s evidence cited above is undisputed and shows CKE was not Plaintiff’s employer.

For these reasons, CKE’s motion for summary judgment is granted as to all causes of action and the claim for punitive damages against CKE. i

Plaintiff’s request for punitive damages is based on her allegations that her supervisor, Sarai Balcazar (“Balcazar”) told her that she was “of no use” because of her injuries. (DSS ¶ 16; FAC, ¶ 18.) CKE contends that Plaintiff’s request for punitive damages fails because Balcazar is not an executive officer, director, or owner of CKE, does not make corporate policy for CKE and additionally, no officer or director of CKE approved or ratified Balcazar’s conduct. (DSS ¶¶ 17-20.)

In opposition to CKE’s contentions, Plaintiff contends that summary adjudication on her punitive damages cause of action is not appropriate because CKE informed Plaintiff that she was terminated because she made a request for medical leave. (PSS ¶ 16; Opp Exhibits, Exh. 2 (Plaintiff Depo), 146:20 – 148:9; 153:18 – 154:18; 184:20 – 24.) Specifically, Plaintiff testified that Balcazar told her the following:

A: There’s something else. She told me, “You work here no more, because you are injured and the owners want no injured staff here, because you’re of no use.”

(Opp Exhibits, Exh. 2, 153:18-25.) Additionally, Plaintiff contends that CKE’s managing agents, including Buffington, planned Plaintiff’s termination while she was on medical leave by delegating authority to Balcazar. (see PSS ¶ 17.) Plaintiff cites to testimony from Balcazar, Buffington, White, and O’Hagan in support of this contention.

Plaintiff’s cited evidence does not support this contention. The Buffington, White, O’Hagan and Balcazar depositions do not demonstrate that CKE’s managing agents planned Plaintiff’s termination with malice, oppression, or fraud, such that an award of punitive damages is appropriate. Although Plaintiff contends that Balcazar told her she was “of no use,” upon her termination, Plaintiff has submitted no evidence to dispute CKE’s contention that Balcazar was not a managing agent for CKE, or that any of the CKE’s other managing agents ever made such comments. Thus, Balcazar’s comment alone does not entitle Plaintiff to request punitive damages.

For these reasons, CKE’s motion is granted as to the FAC’s request for punitive damages.

Conclusion

CKE’s motion is granted. CKE is to give notice and prepare a judgment.

AKASH’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION

Akash moves for summary judgment or, in the alternative, summary adjudication, as follows:

  1. Plaintiff’s First Cause of Action for Discrimination Pursuant to FEHA Fails As A Matter Of Law, Because It Is Barred by Her Failure to Exhaust Administrative Remedies Within The One-Year Statute of Limitations Provided by Government Code section 12960(d);

  2. Plaintiff’s Second Cause of Action for Retaliation Pursuant to FEHA Fails As A Matter Of Law, Because It Is Barred by Her Failure to Exhaust Administrative Remedies Within The One-Year Statute of Limitations Provided by Government Code section 12960(d);

  3. Plaintiff’s Third Cause of Action for Failure to Prevent Discrimination and Retaliation Pursuant to FEHA Fails As A Matter Of Law, Because It Is Barred by Her Failure to Exhaust Administrative Remedies Within The One-Year Statute of Limitations Provided by Government Code section 12960(d);

  4. Plaintiff’s Fourth Cause of Action for Failure to Provide Reasonable Accommodation Pursuant to FEHA Fails As A Matter Of Law, Because It Is Barred by Her Failure to Exhaust Administrative Remedies Within The One-Year Statute of Limitations Provided by Government Code section 12960(d);

  5. Plaintiff’s Fifth Cause of Action for Failure to Engage in Good Faith Interactive Process Pursuant to FEHA Fails As A Matter Of Law, Because It Is Barred by Her Failure to Exhaust Administrative Remedies Within The One-Year Statute of Limitations Provided by Government Code section 12960(d).

  6. Plaintiff’s Sixth Cause of Action for Wrongful Termination In Violation Of Public Policy Fails As A Matter Of Law, Because It Is Barred by Her Failure to Exhaust Her FEHA Administrative Remedies Within The One-Year Statute of Limitations Provided by Government Code section 12960(d).

  7. Plaintiff’s Ninth Cause of Action for Failure to Hire Pursuant to FEHA Fails As A Matter Of Law, Because It Is Barred by Her Failure to Exhaust Administrative Remedies Within The One-Year Statute of Limitations Provided by Government Code section 12960(d).

  8. Plaintiff’s First Cause of Action for Discrimination Pursuant to FEHA Fails As A Matter Of Law, Because Akash Never Employed Plaintiff;

  9. Plaintiff’s Second Cause of Action for Retaliation Pursuant to FEHA Fails As A Matter Of Law, Because Akash Never Employed Plaintiff

  10. Plaintiff’s Third Cause of Action for Failure to Prevent Discrimination and Retaliation Pursuant to FEHA Fails As A Matter Of Law, Because Akash Never Employed Plaintiff

  11. Plaintiff’s Fourth Cause of Action for Failure to Provide Reasonable Accommodation Pursuant to FEHA Fails As A Matter Of Law, Because Akash Never Employed Plaintiff.

  12. Plaintiff’s Fifth Cause of Action for Failure to Engage in Good Faith Interactive Process Pursuant to FEHA Fails As A Matter Of Law, Because Akash Never Employed Plaintiff

  13. Plaintiff’s Sixth Cause of Action for Wrongful Termination In Violation Of Public Policy Fails As A Matter Of Law, Because Akash Never Employed Plaintiff.

  14. Plaintiff’s Sixth Cause of Action for Wrongful Termination In Violation Of Public Policy Fails As A Matter Of Law, Because Akash Is Not Carl’s Jr.’s or CKE’s Alter Ego or Successor.

  15. Plaintiff’s Sixth Cause of Action for Wrongful Termination In Violation Of Public Policy Fails As A Matter Of Law, Because Akash Did Not Violate The FEHA.

  16. Plaintiff’s Seventh Cause of Action for Declaratory Relief Fails As A Matter Of Law, Because It Concerns Past Acts And No Present Controversy Exists.

  17. Plaintiff’s Eighth Cause of Action for Failure to Permit Inspection Of Personnel And Payroll Records Fails As A Matter Of Law, Because Akash Did Not Employ Plaintiff

  18. Plaintiff’s Eighth Cause of Action for Failure to Permit Inspection Of Personnel And Payroll Records Fails As A Matter Of Law, Because Plaintiff Never Requested Such Records From Akash.

  19. Plaintiff’s Ninth Cause of Action For Failure to Hire Pursuant To FEHA Fails As A Matter Of Law, Because Akash Did Not Have Any Open Positions For Which It Was Hiring After It Purchased Carl’s Jr. Restaurant Unit # 66 in April of 2016.

  20. Plaintiff’s Ninth Cause of Action For Failure to Hire Pursuant To FEHA Fails As A Matter Of Law, Because Plaintiff Did Not Apply for a Job with Akash.

  21. Plaintiff’s Punitive Damages Claim Fails As A Matter Of Law, Because She Cannot Establish With Clear and Convincing Evidence That Akash Engaged in Fraud, Malice, or Oppression

  22. Plaintiff’s Punitive Damages Claim Fails As A Matter Of Law, Because She Cannot Establish That Any Decision to Which She Objects Was Made Or Ratified By An Officer, Director, or Managing Agent of Akash.

    Akash’s notice of motion does not comply with California Code of Civil Procedure, section 437c(f)(1). Code of Civil Procedure, section 437c(f)(1) provides that “A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty.” Many of CKE’s noticed issues, such as issues 1 and 8, address the same causes of action. Thus, the court will address the parties’ arguments according to the FAC’s causes of action and Plaintiff’ prayer for punitive damages.

    Evidentiary Objections

    Plaintiff’s Objections to Declaration of Julie O’Hagan

    Overruled: 1-6

    Plaintiff’s Objections to Declaration of David Buffington

    Overruled: 7-8, 10-23

    Sustained: 9

    Plaintiff’s Objections to Transcript of Plaintiff’s Deposition

    Overruled: 24-27

    Akash Objections to Declaration of Rhett Francisco

    Overruled: 3, 9-12, 19

    Sustained: 1-2, 4-5, 8, 13

    Sustained-in-part: 6, 7, 14-19

    Objection 6: sustained-in-part as to citation to Panosian Declaration.

    Objection 7: sustained as to all after “based on discussions.”

    Objection 9-14: Plaintiff has violated CRC 3.1116(b), but that is not grounds to object to the entire declaration; however, only those pages, and lines mentioned in the separate statements will be considered, as the court is not obligated to review the entire transcript and Defendant does not have fair notice of which portions to object to if not specifically mentioned.

    Request for Judicial Notice

    Akash requests that the court take judicial notice of the following in support of its motion:

  1. Plaintiff’s Complaint of Employment Discrimination filed before the State of California Department of Fair Employment and Housing under the California Fair Employment and Housing Act, and corresponding Right to Sue Notice dated April 12, 2017, DFEH Matter Number 819507-283792, filed with the California Department of Fair Employment and Housing against CKE Restaurants Holdings, Inc.

  2. Plaintiff’s original complaint filed with this Court on June 22, 2017.

  3. Plaintiff’s Amended Complaint of Employment Discrimination filed before the State of California Department of Fair Employment and Housing under the California Fair Employment and Housing Act, and corresponding Right to Sue Notice dated August 3, 2017, DFEH Matter Number 819507-283792, filed with the California Department of Fair Employment and Housing against CKE Restaurants Holdings, Inc. and Carl’s Jr. Restaurants LLC.

  4. Plaintiff’s “Amendment to the Complaint (Fictitious/Incorrect Name)” Akash Management, LLC as a DOE 2, filed with this Court on or about September 14, 2018.

  5. Plaintiff’s Amended Complaint of Employment Discrimination filed before the State of California Department of Fair Employment and Housing under the California Fair Employment and Housing Act, and corresponding Right to Sue Notice dated September 18, 2018, DFEH Matter Number 819507-283792, filed with the California Department of Fair Employment and Housing against CKE Restaurants Holdings, Inc., Carl’s Jr. Restaurants LLC and Akash Management LLC.

  6. The Notice of the Court’s Ruling on Carl’s Jr.’s motion for judgment on the pleadings and Akash’s demurrer filed with the court on December 18, 2018.

  7. Plaintiff’s first amended complaint (“FAC”) filed with this Court on January 30, 2019.

  8. The Court’s 3/21/19 Minute Order Ruling on Defendants’ demurrers to the FAC. 2018.

  9. Akash Management LLC’s Statement of Information filed with the Secretary of State on December 12, 2018.

  10. Carl’s Jr. Restaurants LLC’s Statement of Information filed with the Secretary of State on March 29, 2019.

  11. CKE Restaurants Holdings, Inc.’s Statement of Information filed with the Secretary of State on March 26, 2019.

    Akash’s request is granted. The existence and legal significance of these documents are proper matters for judicial notice. (Evidence Code ; 452, subds. (d), (h).)

    Discussion

  1. Legal Authority

“The purpose of the law of summary judgment is to provide 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.) Pursuant to Code of Civil Procedure, section 437c, subdivision (a):

A party may move for summary judgment in any action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding. The motion may be made at any time after 60 days have elapsed since the general appearance in the action or proceeding of each party against whom the motion is directed or at any earlier time after the general appearance that the court, with or without notice and upon good cause shown, may direct…. The motion shall be heard no later than 30 days before the date of trial, unless the court for good cause orders otherwise. The filing of the motion shall not extend the time within which a party must otherwise file a responsive pleading.

(Code Civ. Proc., ; 437c, subd. (a).) A motion for summary judgment may be granted “if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., ; 437c, subd. (c).)

“The motion shall be supported by affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken. The supporting papers shall include a separate statement setting forth plainly and concisely all material facts that the moving party contends are undisputed. Each of the material facts stated shall be followed by a reference to the supporting evidence. The failure to comply with this requirement of a separate statement may in the court’s discretion constitute a sufficient ground for denial of the motion.” (Code Civ. Proc., ; 437c, subd. (b)(1); see also Cal. Rules of Court, rule 3.1350(c)(2) & (d).)

In analyzing motions for summary judgment, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent's claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.” (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294 (Hinsley).) Pursuant to Code Civ. Proc., ; 437c, subdivision (p)(2):

A defendant or cross-defendant has met his or her burden of showing that a cause of action has no merit if the party has shown that 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 the cause of action. Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. The plaintiff or cross-complainant shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto.

(Code Civ. Proc., ; 437c, subd. (p)(2).) The court must “view the evidence in the light most favorable to the opposing party and accept all inferences reasonably drawn therefrom.” (Hinesley, 135 Cal.App.4th at p. 294; Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389 [Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.”].) A motion for summary judgment must be denied where the moving party’s evidence does not prove all material facts, even in the absence of any opposition (Leyva v. Sup. Ct. (1985) 164 Cal.App.3d 462, 475) or where the opposition is weak (Salasguevara v. Wyeth Labs., Inc. (1990) 222 Cal.App.3d 379, 384, 387).

  1. Analysis

A. McDonnell Douglas Test and Summary Judgment

“In analyzing an employee’s claim for unlawful discrimination under the FEHA, California courts have adopted the three-stage, burden-shifting test the United States Supreme Court established in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 [Citations.]” (Swanson v. Morongo Unified School Dist. (2014) 232 Cal.App.4th 954, 964 (Swanson).) “This so-called McDonnell Douglas test reflects the principle that direct evidence of intentional discrimination is rare, and that such claims must usually be proved circumstantially. Thus, by successive steps of increasingly narrow focus, the test allows discrimination to be inferred from facts that create a reasonable likelihood of bias and are not satisfactorily explained.” (Swanson, 232 Cal.App.4th at p. 964.)

California Courts have recognized that the McDonnell Douglas test was originally developed for use at trial, not in summary judgment proceedings. (Swanson, 232 Cal.App.4th at p. 965.) “California’s summary judgment law places the initial burden on a moving party defendant to either negate an element of the plaintiff’s claim or establish a complete defense to the claim.” (Id. at pp. 965-966.) “The burdens and order of proof therefore shift under the McDonnell Douglas test when an employer defendant seeks summary judgment. [Citations.] 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.” (Id. at p. 966.) “[T]o avoid summary judgment [on the second of these two grounds], 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.” (Ibid.)

  1. First, Second, Third, Fourth, Fifth, Sixth, Ninth Causes of Action: Failure to Exhaust Administrative Remedies

Akash contends that Plaintiff’s first through sixth and ninth causes of action fail against it because Plaintiff failed to exhaust administrative remedies by filing a timely DFEH complaint against Akash.

Government Code, section 12960 requires an employee bringing a FEHA claim to first file an administrative complaint with the Department of Fair Employment and Housing (“DFEH”) within one year of the date of the alleged unlawful action.  (Gov. Code, ;; 12960, subd. (d); 12965, subd. (b).)  “The timely filing of an administrative complaint is a prerequisite to the bringing of a civil action for damages under the FEHA.”  (Romano v. Rockwell (1996) 14 Cal.4th 479, 492 (Romano).)  Furthermore, “the FEHA provides that no complaint for any violation of its provisions may be filed with the Department ‘after the expiration of one year from the date upon which the alleged unlawful practice or refusal to cooperate occurred,’ with an exception for delayed discovery…..”  (Ibid., emphasis in original.)  

First, Akash cites Cole v. Antelope Valley Union High School District (1996) 47 Cal.App.4th 1505, 1515-1516 (Cole) to argue that a plaintiff must timely name a defendant in her DFEH complaint to assert claims under the FEHA.

In Cole, individual defendants sought summary judgment on the grounds that Plaintiff failed to exhaust administrative remedies as to them because they were not named in the caption or body of Plaintiff’s initial and amended DFEH complaint. (Id. at 444.) However, one of the individual defendants was named in the body, but not the caption of both complaints. (Id.) The Court of Appeal concluded that Plaintiff may proceed against the individual defendant that was named in the body of the DFEH complaint but not the caption and may not proceed against the two individuals who were named in neither the caption nor the body. (Id. at 446.)

In opposition, Plaintiff contends that her amended DFEH complaint naming Akash was proper because it relates back to her original Complaint. Plaintiff cites cases, including Carrier Corp. v. Detrex Corp. (1992) 4 Cal.App.4th 1522 (Carrier) in support of this argument. Plaintiff’s cited authority does not stand for the proposition that an amended DFEH complaint relates back to the original DFEH complaint. A DFEH complaint was not at issue in any of the cases Plaintiff cited in support of this argument.

Additionally, Plaintiff contends that administrative exhaustion is not required where the unnamed party was substantially identical to a named party.  (Opposition, 23-25; citing Sosa v. Hiraoka (9th Cir. 1990) 920 F.2d 1451, 1459-1460 (Sosa).)  However, Sosa discussed whether naming a substantially identical party to an EEOC charge was proper.  (Id. at pp. 1059-1460.)  As such, Sosa is not applicable to the instant action.

The parties do not dispute that Plaintiff first named Akash as a Defendant in this action through the September 14, 2018 amendment to the Complaint and first named Akash to the DFEH through the September 18, 2018 Amended DFEH Complaint. Additionally, Plaintiff’s FAC alleges that she was terminated on April 23, 2016, and that Akash failed to hire her in April 2016 when it purchased Unit #66. (FAC ¶¶ 69, 74-75.)

Thus, Plaintiff’s deadline to file a DFEH complaint against Akash was April 2017, but the amended DFEH complaint naming Akash was not filed until September 2018, almost one and a half years later. Plaintiff’s amended DFEH complaint against Akash was untimely, and Plaintiff’s arguments about exceptions to Government Code section 12960’s deadline for filing a DFEH complaint fail.

For these reasons, the court finds that Plaintiff has failed to exhaust her administrative remedies against Akash. “Failure to exhaust an administrative remedy is a jurisdictional, not a procedural, defect and dismissal is proper where the court lacks jurisdiction. (Wilkinson v. Norcal Mutual Insurance Co. (1979) 98 Cal.App.3d 307, 318.)

Thus, Akash’s motion is granted as to the first through sixth and ninth causes of action.

  1. First, Second, Third, Fourth, Fifth, Sixth Causes of Action: Whether Akash was Employer

    Alternatively, Akash contends that summary judgment on the first through sixth causes of action is warranted because Akash was not Plaintiffs employer. (Motion, 16.) Akash points to Plaintiffs testimony and W-2 statements for the argument that Plaintiffs employer is Carls Jr., not Akash. (Id.)

    Specifically, Akash Plaintiffs employer was Carls Jr, and that she worked at restaurant unit #66. (Separate Statement in Support of Motion (DSS), ¶¶ 5-6; Declaration of Julie O’Hagan (“O’Hagan Decl.”), ¶¶ 4-5; Exhibits 1-3 thereto; Declaration of Uliana Kozeychuk (“Kozeychuk Decl.”), Exh. 8 (Plaintiff Depo), 237:3-23, 408:10-13.) Plaintiff’s paystubs attached to the O’Hagan Declaration indicate that her employer was “Carl’s Jr. Restaurants, LLC.” Additionally, Plaintiff testified that she worked for “Carl’s Jr.” (Kozeychuk Decl., Exh. 8 (Plaintiff Depo), 237:3-23.)

    In opposition, Plaintiff contends that Akash was Plaintiff’s employer under successor liability. Plaintiff cites McClellan v. Northridge Park Townhome Owners Ass’n, Inc. (2001) 89 Cal.App.4th 746 (McClellan) for this argument. In addition, Plaintiff again points to evidence demonstrating that her employer was Carl’s Jr. and CKE in opposition to Akash’s argument. (see PSS ¶¶ 5-6.)

    Plaintiff’s argument fails. McClellan does not stand for the proposition that successor liability applies to determine which entity is considered the employer for a FEHA action. McClellan does not discuss FEHA causes of action at all. Additionally, Plaintiff’s submitted evidence does not dispute Akash’s contention that Plaintiff’s employer was not Akash.

    Viewing the evidence submitted in the light most favorable to Plaintiff, the court finds that there is no triable issue regarding whether Akash was Plaintiff’s employer. Plaintiff does not submit admissible evidence demonstrating that Akash ever employed her. Thus, Akash’s motion is granted with respect to the first through sixth causes of action for this additional reason.

  2. Seventh Cause of Action: Declaratory Judgment

California Courts have recognized that “[t]he existence of an ‘actual controversy relating to the legal rights and duties of the respective parties,’ suffices to maintain an action for declaratory relief.” ; (Ludgate Ins. Co. v. Lockheed Martin Corp. ;(2000) 82 Cal.App.4th 592, 605 (Ludgate).) ; “Any person interested under a written instrument, ... or under a contract, or who desires a declaration of his or her rights or duties with respect to another, or in respect to, in, over or upon property, ; ... 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, including a determination of any question of construction or validity arising under the instrument or contract." ; (Ibid., quoting Code Civ. Proc., ; 1060.) ; ; ;

Akash contends that Plaintiff’s seventh cause of action fails because there is no actual controversy between the parties and alle vents alleged in Plaintiff’s FAC relate to past acts. (Motion, 17.) In opposition, Plaintiff contends that the seventh cause of action does not fail because the other causes of action do not fail and thus, constitutes a present controversy. (Opposition, 35-36.)

The court grants Akash’s motion as to the first through sixth and eighth through ninth causes of action for reasons stated elsewhere in this ruling. Thus, the court agrees with Akash that a present controversy does not exist between the parties.

For this reason, Akash’s motion is also granted as to the seventh causes of action.

  1. Eighth Cause of Action: Failure to Permit Inspection of Personnel and Payroll Records

Pursuant to Labor Code section 1198.5, subdivision (a) “every current and former employee” has the “right to inspect and receive a copy” of her personnel records. Further, “The employer shall make the contents of those personnel records available for inspection to the current or former employee, or his or her representative, at reasonable intervals and at reasonable times, but not later than 30 calendar days from the date the employer receives a written request, unless the current or former employee, or his or her representative, and the employer agree in writing to a date beyond 30 calendar days to inspect the records, and the agreed-upon date does not exceed 35 calendar days from the employer’s receipt of the written request.” (Labor Code ; 1198.5, subd. (b)(1).) Additionally, an employer who receives a request for records pursuant to Labor Code section 226 “shall comply with the request as soon as practicable, but no later than 21 calendar days from the date of the request.” (Labor Code ; 226, subd. (c).)

Akash contends that summary adjudication is warranted as to Plaintiff’s eighth cause of action because Plaintiff never made a records request to Akash and, additionally, because Akash was not Plaintiff’s employer. (Motion, 18.) In opposition, Plaintiff contends that summary judgment must be denied because Plaintiff made a records request to “Defendants.” (Opposition, 36-37.) As with Plaintiff’s opposition to CKE’s MSJ, Plaintiff points to the declaration of her counsel, Rhett Francisco in support of this contention.

As discussed above, the court finds that Akash has demonstrated that it was not Plaintiff’s employer.

Thus, viewing the evidence submitted in the light most favorable to Plaintiff, the court finds that no triable issue of material fact exists with regard to Plaintiff’s eighth cause of action. Akash cannot be liable for failing to permit inspection of Plaintiff’s personnel and payroll records if it is not Plaintiff’s employer, as both Labor Code section 1198.5 and section 226 imposes liability on an “employer” for failure to permit inspection of personnel and payroll records.

For these reasons, Akash’s motion is granted as to the eighth cause of action.

  1. Ninth Cause of Action: Failure to Hire under the FEHA

"[A] member of a protected group establishes a prima facie case for employment discrimination for failure to hire by presenting evidence that, despite possessing the requisite qualifications, he or she was rejected, and that, after that rejection, the position remained open and the employer continued to seek applicants from persons with complainant's qualifications." (Jensen v. Wells Fargo Bank (2000) 85 Cal. App. 4th 245, 255 n. 4 (citing McDonnell Douglas Corp., supra, 411 U.S. at 803);

Akash contends that Plaintiff’s ninth cause of action fails because Plaintiff cannot demonstrate that Akash had any open positions for which it was hiring after purchase of Unit #66 and additionally, Plaintiff never attempted to apply for a job at Akash. (Motion, 18-19, citing DSS, ¶¶ 24-25; Kozeychuk Decl., Exh. 17 (Plaintiff Depo), 237:3-2, 413:20-24; Buffington Decl. ¶ 15.) Specifically, when Plaintiff was asked if she ever attempted to apply for a job with the “new owner,” she stated “no.” (Kozeychuk Decl., Exh. 17, 413:20-24.)

Plaintiff disputes Akash’s contention in part and contends that a triable issue exists with respect to Akash’s liability for failure to hire because Akash never reached out to Plaintiff to offer employment but did so for other employees who were formerly with unit #66. (PSS ¶¶ 24-25.)

Plaintiff’s argument fails. A cause of action for failure to hire under the FEHA requires Plaintiff to demonstrate that she was rejected for a position and that after rejection, the employer continued to seek other applicants who also possessed Plaintiff’s qualifications. Whether Akash offered employment to certain former employees at Unit #66 and not Plaintiff has no bearing, as Plaintiff does not demonstrate that she applied for a job with Akash but was rejected for applicants with similar qualifications.

For these reasons, Akash’s motion is granted as to the ninth cause of action.

  1. Request for Punitive Damages against Akash

Having granted Akash’s motion as to each cause of action of Plaintiff’s FAC, the court now grants Akash’s motion as to the FAC’s prayer for punitive damages, as no causes of action support Plaintiff’s request for punitive damages.

Conclusion

Akash’s motion is granted. Akash is to give notice and prepare a judgment.

CARL’S JR. MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION

Carl’s Jr. moves for summary judgment or, in the alternative, summary adjudication, as follows:

  1. Plaintiff’s First Cause of Action for Discrimination Pursuant to FEHA Fails As A Matter Of Law, Because It Is Barred by Her Failure to Exhaust Administrative Remedies Within The One-Year Statute of Limitations Provided by Government Code section 12960(d).

  2. Plaintiff’s Second Cause of Action for Retaliation Pursuant to FEHA Fails As A Matter Of Law, Because It Is Barred by Her Failure to Exhaust Administrative Remedies Within The One-Year Statute of Limitations Provided by Government Code section 12960(d)

  3. Plaintiff’s Third Cause of Action for Failure to Prevent Discrimination and Retaliation Pursuant to FEHA Fails As A Matter Of Law, Because It Is Barred by Her Failure to Exhaust Administrative Remedies Within The One-Year Statute of Limitations Provided by Government Code section 12960(d).

  4. Plaintiff’s Fourth Cause of Action for Failure to Provide Reasonable Accommodation Pursuant to FEHA Fails As A Matter Of Law, Because It Is Barred by Her Failure to Exhaust Administrative Remedies Within The One-Year Statute of Limitations Provided by Government Code section 12960(d).

  5. Plaintiff’s Fifth Cause of Action for Failure to Engage in Good Faith Interactive Process Pursuant to FEHA Fails As A Matter Of Law, Because It Is Barred by Her Failure to Exhaust Administrative Remedies Within The One-Year Statute of Limitations Provided by Government Code section 12960(d).

  6. Plaintiff’s Sixth Cause of Action for Wrongful Termination In Violation Of Public Policy Fails As A Matter Of Law, Because It Is Barred by Her Failure to Exhaust Her FEHA Administrative Remedies Within The One-Year Statute of Limitations Provided by Government Code section 12960(d)

  7. Plaintiff’s First Cause of Action for Discrimination Pursuant to FEHA Fails As A Matter Of Law, Because Plaintiff Cannot Establish a Prima Facie Case and There Is No Evidence That Carl’ Jr.’s Legitimate, Nondiscriminatory Reasons For Her Separation From Unit # 66 Were Pretextual.

  8. Plaintiff’s Second Cause of Action for Retaliation Pursuant to FEHA Fails As A Matter Of Law, Because Plaintiff Cannot Establish a Prima Facie Case and There Is No Evidence That Carl’ Jr.’s Legitimate, Nondiscriminatory Reasons For Her Separation From Unit # 66 Were Pretextual.

  9. Plaintiff’s Third Cause of Action for Failure to Prevent Discrimination and Retaliation Pursuant to FEHA Fails As A Matter Of Law, Because Plaintiff Cannot Establish a Prima Facie Case and There Is No Evidence That Carl’ Jr.’s Legitimate, Nondiscriminatory Reasons For Her Separation From Unit # 66 Were Pretextual.

  10. Plaintiff’s Fourth Cause of Action for Failure to Provide Reasonable Accommodation Pursuant to FEHA Fails As A Matter Of Law, Because Plaintiff Cannot Establish a Prima Facie Case and There Is No Evidence That Carl’ Jr.’s Legitimate, Nondiscriminatory Reasons For Her Separation From Unit # 66 Were Pretextual

  11. Plaintiff’s Fifth Cause of Action for Failure to Engage in Good Faith Interactive Process Pursuant to FEHA Fails As A Matter Of Law, Because Plaintiff Cannot Establish a Prima Facie Case and There Is No Evidence That Carl’ Jr.’s Legitimate, Nondiscriminatory Reasons For Her Separation From Unit # 66 Were Pretextual

  12. Plaintiff’s Sixth Cause of Action for Wrongful Termination Fails As A Matter Of Law, Because It Is Barred by Her Failure to Exhaust Her FEHA Administrative Remedies Within The One-Year Statute of Limitations Provided by Government Code section 12960(d)

  13. Plaintiff’s Sixth Cause of Action for Wrongful Termination Fails As A Matter Of Law, Because Plaintiff Cannot Establish a Prima Facie Case and There Is No Evidence That Carl’ Jr.’s Legitimate, Nondiscriminatory Reasons For Her Separation From Unit # 66 Were Pretextual

  14. Plaintiff’s Seventh Cause of Action for Declaratory Relief Fails As A Matter Of Law, Because Plaintiff’s FEHA Causes of Action are Barred by Her Failure to Exhaust Administrative Remedies.

  15. Plaintiff’s Seventh Cause of Action for Declaratory Relief Fails As A Matter Of Law, Because Plaintiff Cannot Establish a Prima Facie Case and There Is No Evidence That Carl’ Jr.’s Legitimate, Nondiscriminatory Reasons For Her Separation From Unit # 66 Were Pretextual.

  16. Plaintiff’s Seventh Cause of Action for Declaratory Relief Fails As A Matter Of Law, Because It Concerns Past Acts And No Present Controversy Exists.

  17. Plaintiff’s Eighth Cause of Action for Failure to Permit Inspection Of Personnel And Payroll Records Fails As A Matter Of Law, Because Plaintiff Never Requested Such Records From Carl’ Jr

  18. Plaintiff’s First Cause of Action Fails As A Matter Of Law, Because Plaintiff Improperly Identified Carl’s Jr. As A Doe Defendant.

  19. Plaintiff’s Second Cause of Action Fails As A Matter Of Law, Because Plaintiff Improperly Identified Carl’s Jr. As A Doe Defendant

  20. Plaintiff’s Third Cause of Action Fails As A Matter Of Law, Because Plaintiff Improperly Identified Carl’s Jr. As A Doe Defendant.

  21. Plaintiff’s Fourth Cause of Action Fails As A Matter Of Law, Because Plaintiff Improperly Identified Carl’s Jr. As A Doe Defendant

  22. Plaintiff’s Fifth Cause of Action Fails As A Matter Of Law, Because Plaintiff Improperly Identified Carl’s Jr. As A Doe Defendant.

  23. Plaintiff’s Sixth Cause of Action Fails As A Matter Of Law, Because Plaintiff Improperly Identified Carl’s Jr. As A Doe Defendant.

  24. Plaintiff’s Seventh Cause of Action Fails As A Matter Of Law, Because Plaintiff Improperly Identified Carl’s Jr. As A Doe Defendant

  25. Plaintiff’s Eighth Cause of Action Fails As A Matter Of Law, Because Plaintiff Improperly Identified Carl’s Jr. As A Doe Defendant.

  26. Plaintiff’s Punitive Damages Claim Fails As A Matter Of Law, Because She Cannot Establish With Clear and Convincing Evidence That Carl’s Jr. Engaged in Fraud, Malice, or Oppression.

  27. Plaintiff’s Punitive Damages Claim Fails As A Matter Of Law, Because She Cannot Establish That Any Decision to Which She Objects Was Made Or Ratified By An Officer, Director, or Managing Agent of Carl’s Jr.

    Carl Jr.’s notice of motion does not comply with California Code of Civil Procedure, section 437c(f)(1). Code of Civil Procedure, section 437c(f)(1) provides that “A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty.” Many of CKE’s noticed issues, such as issues 12, 13, 23, address the same causes of action. Thus, the court will address the parties’ arguments according to the FAC’s causes of action and Plaintiff’ prayer for punitive damages.

    Evidentiary Objections

    Plaintiff’s Objections to Declaration of Julie O’Hagan

    Overruled: 1-7, 9-13

    Sustained: 8, 11

    Plaintiff’s Objections to Transcript of Plaintiff’s Deposition

    Overruled: 14-17Objection 14: overruled, not vague or ambiguous, does not lack foundation.

    Plaintiff’s Objections to Transcript of O’Hagan Deposition

    Overruled: 18-24

    CKE Objections to Declaration of Rhett Francisco

    Overruled: 6

    Sustained: 1-2, 4-5, 7-8

    Sustained in part: 3, 9-14

    Objection 3: The narrative from P’s UMF is really an argument and summary of evidence, not a fact, and the objection to it is sustained. Any objection to the deposition testimony cited is overruled.

    Objection 9-14: Plaintiff has violated CRC 3.1116(b), but that is not grounds to object to the entire declaration; however, only those pages, and lines mentioned in the separate statements will be considered, as the court is not obligated to review the entire transcript and Defendant does not have fair notice of which portions to object to if not specifically mentioned.

    Request for Judicial Notice

Carl’s Jr. requests that the court take judicial notice of the following in support of its motion:

  1. Plaintiff’s Complaint of Employment Discrimination filed before the State of California Department of Fair Employment and Housing under the California Fair Employment and Housing Act, and corresponding Right to Sue Notice dated April 12, 2017, DFEH Matter Number 819507-283792, filed with the California Department of Fair Employment and Housing against CKE Restaurants Holdings, Inc.

  2. Plaintiff’s original complaint filed with this Court on June 22, 2017.

  3. Plaintiff’s Amended Complaint of Employment Discrimination filed before the State of California Department of Fair Employment and Housing under the California Fair Employment and Housing Act, and corresponding Right to Sue Notice dated August 3, 2017, DFEH Matter Number 819507-283792, filed with the California Department of Fair Employment and Housing against CKE Restaurants Holdings, Inc. and Carl’s Jr. Restaurants LLC

  4. Plaintiff’s Doe Amendment 1 naming Carl’s Jr. filed on August 4, 2017.

  5. The Notice of the Court’s Ruling on Carl’s Jr.’s motion for judgment on the pleadings and Akash’s demurrer filed with the court on December 18, 2018

  6. Plaintiff’s first amended complaint (“FAC”) filed with this Court on January 30, 2019

  7. The Court’s 3/21/19 Minute Order Ruling on Defendants’ demurrers to the FAC.

Carl’s Jr.’s request is granted. The existence and legal significance of these documents are proper matters for judicial notice. (Evidence Code ; 452, subds. (d), (h).)

Discussion

  1. Legal Authority

“The purpose of the law of summary judgment is to provide 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.) Pursuant to Code of Civil Procedure, section 437c, subdivision (a):

A party may move for summary judgment in any action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding. The motion may be made at any time after 60 days have elapsed since the general appearance in the action or proceeding of each party against whom the motion is directed or at any earlier time after the general appearance that the court, with or without notice and upon good cause shown, may direct…. The motion shall be heard no later than 30 days before the date of trial, unless the court for good cause orders otherwise. The filing of the motion shall not extend the time within which a party must otherwise file a responsive pleading.

(Code Civ. Proc., ; 437c, subd. (a).) A motion for summary judgment may be granted “if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., ; 437c, subd. (c).)

“The motion shall be supported by affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken. The supporting papers shall include a separate statement setting forth plainly and concisely all material facts that the moving party contends are undisputed. Each of the material facts stated shall be followed by a reference to the supporting evidence. The failure to comply with this requirement of a separate statement may in the court’s discretion constitute a sufficient ground for denial of the motion.” (Code Civ. Proc., ; 437c, subd. (b)(1); see also Cal. Rules of Court, rule 3.1350(c)(2) & (d).)

In analyzing motions for summary judgment, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent's claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.” (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294 (Hinsley).) Pursuant to Code Civ. Proc., ; 437c, subdivision (p)(2):

A defendant or cross-defendant has met his or her burden of showing that a cause of action has no merit if the party has shown that 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 the cause of action. Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. The plaintiff or cross-complainant shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto.

(Code Civ. Proc., ; 437c, subd. (p)(2).) The court must “view the evidence in the light most favorable to the opposing party and accept all inferences reasonably drawn therefrom.” (Hinesley, 135 Cal.App.4th at p. 294; Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389 [Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.”].) A motion for summary judgment must be denied where the moving party’s evidence does not prove all material facts, even in the absence of any opposition (Leyva v. Sup. Ct. (1985) 164 Cal.App.3d 462, 475) or where the opposition is weak (Salasguevara v. Wyeth Labs., Inc. (1990) 222 Cal.App.3d 379, 384, 387).

  1. Analysis

A. McDonnell Douglas Test and Summary Judgment

“In analyzing an employee’s claim for unlawful discrimination under the FEHA, California courts have adopted the three-stage, burden-shifting test the United States Supreme Court established in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 [Citations.]” (Swanson v. Morongo Unified School Dist. (2014) 232 Cal.App.4th 954, 964 (Swanson).) “This so-called McDonnell Douglas test reflects the principle that direct evidence of intentional discrimination is rare, and that such claims must usually be proved circumstantially. Thus, by successive steps of increasingly narrow focus, the test allows discrimination to be inferred from facts that create a reasonable likelihood of bias and are not satisfactorily explained.” (Swanson, 232 Cal.App.4th at p. 964.)

California Courts have recognized that the McDonnell Douglas test was originally developed for use at trial, not in summary judgment proceedings. (Swanson, 232 Cal.App.4th at p. 965.) “California’s summary judgment law places the initial burden on a moving party defendant to either negate an element of the plaintiff’s claim or establish a complete defense to the claim.” (Id. at pp. 965-966.) “The burdens and order of proof therefore shift under the McDonnell Douglas test when an employer defendant seeks summary judgment. [Citations.] 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.” (Id. at p. 966.) “[T]o avoid summary judgment [on the second of these two grounds], 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.” (Ibid.)

  1. First through Fifth Causes of Action: Failure to Exhaust Administrative Remedies

    Carls Jr. contends that Plaintiffs first through fifth causes of action under the FEHA fail because Plaintiff has failed to exhaust her administrative remedies against Carls Jr., and no exceptions apply. (Motion, 9-13.) In opposition, Plaintiff contends that her amended DFEH complaint relates back to her original DFEH complaint and that additionally, Carls Jr. is substantively identical to CKE such that Carls Jr. was on notice of Plaintiffs complaints. (Opposition, 17-26.)

Government Code, section 12960 requires an employee bringing a FEHA claim to first file an administrative complaint with the Department of Fair Employment and Housing (“DFEH”) within one year of the date of the alleged unlawful action.  (Gov. Code, ;; 12960, subd. (d); 12965, subd. (b).)  “The timely filing of an administrative complaint is a prerequisite to the bringing of a civil action for damages under the FEHA.”  (Romano v. Rockwell (1996) 14 Cal.4th 479, 492 (Romano).)  Furthermore, “the FEHA provides that no complaint for any violation of its provisions may be filed with the Department ‘after the expiration of one year from the date upon which the alleged unlawful practice or refusal to cooperate occurred,’ with an exception for delayed discovery…..”  (Ibid., emphasis in original.)  

First, Carl’s Jr. cites Cole v. Antelope Valley Union High School District (1996) 47 Cal.App.4th 1505, 1515-1516 (Cole) to argue that a plaintiff must timely name a defendant in her DFEH complaint to assert claims under the FEHA.

In Cole, individual defendants sought summary judgment on the grounds that Plaintiff failed to exhaust administrative remedies as to them because they were not named in the caption or body of Plaintiff’s initial and amended DFEH complaint. (Id. at 444.) However, one of the individual defendants was named in the body, but not the caption of both complaints. (Id.) The Court of Appeal concluded that Plaintiff may proceed against the individual defendant that was named in the body of the DFEH complaint but not the caption and may not proceed against the two individuals who were named in neither the caption nor the body. (Id. at 446.)

In opposition, Plaintiff contends that her amended DFEH complaint naming Carl’s Jr. was proper because it relates back to her original Complaint. Plaintiff cites cases, including Carrier Corp. v. Detrex Corp. (1992) 4 Cal.App.4th 1522 (Carrier) in support of this argument. Plaintiff’s cited authority does not stand for the proposition that an amended DFEH complaint relates back to the original DFEH complaint. A DFEH complaint was not at issue in any of the cases Plaintiff cited in support of this argument.

Additionally, Plaintiff contends that administrative exhaustion is not required where the unnamed party was substantially identical to a named party.  (Opposition, 23-24; citing Sosa v. Hiraoka (9th Cir. 1990) 920 F.2d 1451, 1459-1460 (Sosa).)  However, Sosa discussed whether naming a substantially identical party to an EEOC charge was proper.  (Id. at pp. 1059-1460.)  As such, Sosa does not apply to the FEHA charge.

The parties do not dispute that Plaintiff first named Carls Jr. as a doe Defendant in this action through an August 4, 2017 doe amendment and first named Carl’s Jr. to the DFEH through the amended DFEH Complaint, filed August 3, 2017. Additionally, Plaintiff’s FAC alleges that she was terminated on April 23, 2016. (see FAC ¶ 69.)

Thus, Plaintiff’s deadline to file a DFEH complaint against Carl’s Jr. was April 2017, but the amended DFEH complaint naming Carl’s Jr. was not filed until August 3, 2017, more than one year later. Plaintiff’s amended DFEH complaint against Carl’s Jr. was untimely, and Plaintiff’s arguments about exceptions to Government Code section 12960’s deadline for filing a DFEH complaint fail.

For these reasons, the court finds that Plaintiff has failed to exhaust her administrative remedies against Carl’s Jr. “Failure to exhaust an administrative remedy is a jurisdictional, not a procedural, defect and dismissal is proper where the court lacks jurisdiction. (Wilkinson v. Norcal Mutual Insurance Co. (1979) 98 Cal.App.3d 307, 318.)

Thus, Carl’s Jr.’s motion is granted as to the first through fifth causes of action.

  1. Sixth Cause of Action: Wrongful Termination in Violation of Public Policy

Carl’s Jr contends that Plaintiff’s sixth cause of action fails because Plaintiff’s first five causes of action under the FEHA fail and thus, Carl’s Jr. did not violate any public policy. (Motion, 17.)

Having granted Carl’s Jr’s motion as to the first five causes of action, the court now grants Carl’s Jr.’s motion as to the sixth cause of action.

  1. Seventh Cause of Action: Declaratory Judgment

California Courts have recognized that “[t]he existence of an ‘actual controversy relating to the legal rights and duties of the respective parties,’ suffices to maintain an action for declaratory relief.” ; (Ludgate Ins. Co. v. Lockheed Martin Corp. ;(2000) 82 Cal.App.4th 592, 605 (Ludgate).) ; “Any person interested under a written instrument, ... or under a contract, or who desires a declaration of his or her rights or duties with respect to another, or in respect to, in, over or upon property, ; ... 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, including a determination of any question of construction or validity arising under the instrument or contract." ; (Ibid., quoting Code Civ. Proc., ; 1060.) ; ; ;

Carl’s Jr. contends that summary adjudication is required on the seventh cause of action because all of Plaintiff’s other causes of action fail.

For this reason, Carl’s Jr.’s motion is also granted as to the seventh cause of action.

  1. Eighth Cause of Action: Failure to Permit Inspection of Personnel and Payroll Records

Pursuant to Labor Code section 1198.5, subdivision (a) “every current and former employee” has the “right to inspect and receive a copy” of her personnel records. Further, “The employer shall make the contents of those personnel records available for inspection to the current or former employee, or his or her representative, at reasonable intervals and at reasonable times, but not later than 30 calendar days from the date the employer receives a written request, unless the current or former employee, or his or her representative, and the employer agree in writing to a date beyond 30 calendar days to inspect the records, and the agreed-upon date does not exceed 35 calendar days from the employer’s receipt of the written request.” (Labor Code ; 1198.5, subd. (b)(1).) Additionally, an employer who receives a request for records pursuant to Labor Code section 226 “shall comply with the request as soon as practicable, but no later than 21 calendar days from the date of the request.” (Labor Code ; 226, subd. (c).)

Carl’s Jr. contends that summary adjudication should be granted as to Plaintiff’s eighth cause of action because Plaintiff never made a request for records from Carl’s Jr. (Motion, 15; O’Hagan Decl., ¶ 15.) Plaintiff disputes this fact and contends that on October 28, 2016, Plaintiff made a request for records to “defendants,” which was never responded to. (see PSS ¶ 15; Francisco Decl., ¶ 13, Exh. 11.) Paragraph 13 of the Francisco Declaration states that he submitted a request for personnel files to “CKE Restaurant Holdings, Inc.” and attaches a letter as Exhibit 11 that is addressed to the same entity. Carl’s Jr. was not named until the following year as set forth above, and no evidence is submitted that a request was ever made to Carl’s Jr. for personnel records.

Viewing the evidence submitted in the light most favorable to Plaintiff, the court finds that no triable issue exists with regard to whether Carl’s Jr. failed to permit Plaintiff to inspect personnel and payroll records. Defendant has submitted competent evidence that no request was made and Plaintiff has submitted no evidence that she has made such a request.

For these reasons, Carl’s Jr.’s motion is granted as to this request.

  1. Request for Punitive Damages against Carl’s Jr.

As Defendant’s motion is granted as to all causes of action, there is no basis for punitive damages.

For these reasons, Carl’s Jr. motion is granted as to the FAC’s request for punitive damages.

Conclusion

Carl’s Jr.’s motion is granted. Carl’s Jr. is to give notice and to prepare a judgment.



Case Number: ****6232    Hearing Date: September 18, 2020    Dept: 37

HEARING DATE: September 18, 2020

CASE NUMBER: ****6232

CASE NAME: Carmen Liza v. CKE Restaurant Holdings, Inc.

MOVING PARTY: Plaintiff, Carmen Liza

OPPOSING PARTY: Defendant, Akash Management, LLC

TRIAL DATE: August 24, 2021

MOTION: Motion to Compel Further Response Inspection Demand from Plaintiff

PROOF OF SERVICE: OK

OPPOSITION: September 4, 2020

REPLY: None as of September 17, 2020

TENTATIVE: Plaintiff’s motion is denied. The requests for sanctions are denied.

Plaintiff to give notice.

__________________

Background

This action arises out of Plaintiff, Carmen Liza’s (“Plaintiff”) employment with at a Carl’s Jr. Restaurant, “Unit 66”. Defendant, CKE Restaurant Holdings, Inc. (“CKE”), Carl’s Jr. Restaurants, LLC (“CJR”) and Akash Management, LLC (“Akash”) allegedly own and operate chains of restaurants, including Carl’s Jr restaurants. Further, Akash was allegedly an agent, joint employer and/or alter ego of CJR and/or CKE, and that a unity of interest and ownership exists amongst all of them.

According to Plaintiff’s operative First Amended Complaint (“FAC”), Plaintiff was hired by CKE and CJR as a cook in or about November 2014 and performed satisfactorily. Thereafter, Plaintiff suffered an injury on or about March 6, 2016 and was placed on medical leave until April 24, 2016. The FAC alleges that while Plaintiff continued to recover and requested reasonable accommodations to facilitate her return to work, CKE and CJR refused to provide these accommodations and eventually terminated her prior to her April 24, 2016 return date. Finally, the FAC specifically alleges with respect to Akash that Akash allegedly acquired Unit 66 on April 18, 2016, and that “practically all former employees of Unit 66 except for Plaintiff maintained their previous positions.”

Plaintiff’s FAC alleges nine causes of action as follows: (1) discrimination violation of the Fair Employment Housing Act (“FEHA”) (Government Code ;;12940, et seq.), (2) retaliation in violation of the FEHA, (3) failure to prevent discrimination and retaliation in violation of the FEHA, (4) failure to provide reasonable accommodation in violation of the FEHA, (5) failure to engage in a good faith interactive process in violation of the FEHA, (6) wrongful termination in violation of public policy, (7) declaratory judgment, (8) failure to permit inspection of personnel and payroll records (Labor Code ;;1198.5, 226(c)(f) and 432), (9) failure to hire in violation of the FEHA. The ninth cause of action is alleged against Akash only, while the remaining causes of action are alleged against all defendants.

Plaintiff now moves to compel further responses from Akash to Requests for Production, Set Two, numbers 39, 41 and 42. Akash opposes the motion.

Procedural History

Plaintiff served Akash with Requests for Production, Set Two on August 20, 2019. (Declaration of Rhett T. Francisco (“Francisco”), ¶ 6, Exhibit 3.) Akash served its responses on September 24, 2019 by mail. (Francisco Decl. ¶ 7, Exhibit 4.)

On January 15, 2020, Akash served further responses to Requests for Production, Set Two following the parties’ meet and confer efforts regarding Akash’s initial responses. (Francisco Decl. ¶ 9, Exhibit 6.)

The Parties’ Meet and Confer Efforts

A motion to compel further responses “shall be accompanied by a meet and confer declaration.”  (Code Civ. Proc., ; 2031.310, subd. (b)(2).)  The declaration must state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented in the motion.  (Code Civ. Proc., )  “[A] reasonable and good faith attempt at informal resolution entails something more than bickering with [opposing] counsel….  Rather, the law requires that counsel attempt to talk the matter over, compare their views, consult, and deliberate.”  (Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1294 (Clement).)  

Plaintiff’s counsel Rhett Francisco attests that on October 24, 2019, he sent a meet and confer letter to Defense counsel regarding Defendant’s allegedly deficient initial responses. (Francisco Decl. ¶ 8, Exhibit 5.) However, Francisco does not attest to further meeting and conferring between receiving Akash’s supplemental responses and filing the instant motion. Further, the October 24, 2019 letter also does not mention requesting any extension on Plaintiff’s initial motion to compel deadline, which would have been December 10, 2019. The instant motion was filed on January 27, 2020, twelve days after Plaintiff receive Akash’s further responses.

Further, Akash argues that Plaintiff’s motion should be denied for failure to meet and confer in good faith. Akash’s counsel, Miko Sargizian (“Sargizian”) attests that “Prior to filing this motion, Plaintiff never picked up the telephone to meet and confer, or send any other correspondence either through email, fax or through the US mail.” (Sargizian Decl. ¶¶ 8-10.)

The court notes that there appears to be more than one version of Akash’s January 15, 2020 responses. Exhibit 6 to the Francisco Declaration, which indicates that it is Akash’s Further Responses to Requests for Production, Set Two, only includes a further response to request number 40. However, Exhibit B to the Sargizian Declaration indicates that it is also Akash’s Further Responses to Requests for Production, Set Two, and includes further responses to both requests 39 and 40.

Plaintiff’s motion contains no statement of meeting and conferring with respect to the supplemental responses that are the subject of this motion. A motion to compel further responses “shall be accompanied by a meet and confer declaration.”  (Code Civ. Proc., ; 2031.310, subd. (b)(2).)  Defendant asserts that there was no communication from Plaintiff regarding this motion. The failure to meet and confer and to file a declaration confirming a meet and confer is a ground to deny a discovery motion.

Discussion

  1. Timeliness of Motions

Pursuant to Code of Civil Procedure section 2031.310, subdivision (c), a motion to compel further responses to inspection demands must be filed within 45 days of service of the verified response, or on or before any specific later date to which the demanding party and the responding party have agreed in writing, with additional time allowed for the manner of service. (Code Civ. Proc., ;; 1013, subd. (a); 2031.310, subd. (c).) The 45-day requirement of Code of Civil Procedure, section 2031.310, subdivision (c) is mandatory and jurisdictional in the sense that it renders the court without authority to rule on a motion to compel further responses to discovery other than to deny the motion. (Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410 (Sexton).)

As discussed above, Akash served its further responses to Plaintiff’s Requests for Production, Set Two on January 15, 2020. Thus, the deadline to move to compel based on Akash’s further responses was March 5, 2020. The instant motion was filed on January 27, 2020 and is thus timely.

  1. Analysis

Plaintiff moves to compel Akash to provide a further response to Requests 39, 41 and 42. These requests provide as follows:

Number 39: The assignment and assumption agreement RELATING TO the 2016 divestiture of Carl’s Jr. Unit 66.

Number 41: Any and all DOCUMENTS sent to the employees contained on the LIST OF EMPLOYEES received by AKASH before the closing date of the 2016 divestiture.

Number 42: Any and all DOCUMENTS sent to the employees contained on the LIST OF EMPLOYEES received by AKASH after the closing date of the 2016 divestiture.

(see Separate Statement in Support of Motion, p. 1-7.)

There are several factual discrepancies between the parties that could and should have been resolved in the meet and confer process. Since Plaintiff did not comply with Code Civ. Proc., ; 2031.310, subd. (b)(2), Plaintiff’s motion is denied.

Monetary Sanctions

The court may impose sanctions against any party for engaging in conduct constituting a “misuse of the discovery process.” (Code Civ. Proc., ; 2023.030 (a).) Misuse of the discovery process includes “failing to respond or submit to an authorized method of discovery.” (Code Civ. Proc., ; 2023.010 (d).)

Plaintiff requests sanctions in the total amount of $5,255.90 in connection with this motion. In opposition, Akash requests sanctions in the amount of $8,920 on the grounds that Plaintiff has failed to meet and confer in good faith.

The court finds that there is some fault on each side, which would make the award of sanctions in the circumstances unjues.

Conclusion

Plaintiff’s motion is denied. The requests for sanctions are denied.

Plaintiff to give notice.



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