GAYL ABBEY VS THE MILKEN FAMILY FOUNDATION, ET AL.

Tentative Rulings

Case Number: *******7404 Hearing Date: March 9, 2023 Dept: 54

Hearing Date: March 9, 2023

Department 54, Judge Maurice A. Leiter

Motion to Compel Neuropsychological Examination of Plaintiff

Moving Party: Defendants The Milken Family Foundation, Gary Panas and Larry Lesser

Responding Party: Plaintiff Gayl Abbey

T/R: DEFENDANTS’ MOTION IS GRANTED.

DEFENDANTS TO NOTICE.

If the parties wish to submit on the tentative, please email the courtroom at SMCdept54@lacourt.org with notice to opposing counsel (or self-represented party) before 8:00 am on the day of the hearing.

The Court considers the moving papers, opposition, and reply.

“(a) If any party desires to obtain discovery by a physical examination other than that described in Article 2 (commencing with Section 2032.210), or by a mental examination, the party shall obtain leave of court. (b) A motion for an examination under subdivision (a) shall specify the time, place, manner, conditions, scope, and nature of the examination, as well as the identity and the specialty, if any, of the person or persons who will perform the examination. The motion shall be accompanied by a meet and confer declaration under Section 2016.040.” (CCP 2032.310.) “The court shall grant a motion for a physical or mental examination under Section 2032.310 only for good cause shown.” (CCP 2032.320(a).)

Defendants move to compel Plaintiff to sit for a neuropsychological exam. On January 13, 2023, the Court granted Defendants’ motion for a mental examination and denied Defendants’ motion for a neurological exam. The Court stated that if the mental exam showed a need for a neurological exam, the Court would revisit the request. Defendants assert that, based on the mental examination, the examining physician diagnosed Plaintiff with dementia and recommended Plaintiff sit for a neuropsychological exam. (Decl. Cohen 4-6.)

As the examining physician has recommended a neuropsychological evaluation, the Court will require Plaintiff to participate in such an exam. The Court rejects Plaintiff’s characterization of the examination conducted by the physician.

Defendants’ motion is GRANTED.

Case Number: *******7404 Hearing Date: February 15, 2023 Dept: 54

Hearing Date: February 15, 2023

Department 54, Judge Maurice A. Leiter

Motion for Summary Judgment, or in the alternative, Motion for Summary Adjudication

Moving Party: Defendants The Milken Family Foundation, Gary Panas and Larry Lesser

Responding Party: Plaintiff Gayl Abbey

T/R: DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, MOTION FOR SUMMARY ADJUDICATION IS DENIED.

DEFENDANTS TO NOTICE.

If the parties wish to submit on the tentative, please email the courtroom at SMCdept54@lacourt.org with notice to opposing counsel (or self-represented party) before 8:00 am on the day of the hearing.

The Court considers the moving papers and opposition.

BACKGROUND

On October 12, 2021, Plaintiff Gayl Abbey sued Defendants The Milken Family Foundation, Gary Panas, and Larry Lesser, asserting causes of action for (1) age and disability discrimination; (2) harassment; (3) retaliation; (4) failure to provide reasonable accommodation; (5) failure to engage in the interactive process; (6) failure to prevent discrimination, harassment and retaliation; (7) negligent hiring, supervision and retention; (8) wrongful termination in violation of public policy; (9) whistleblower retaliation; and (10) IIED. Plaintiff alleges her employment was terminated because of her age and disability.

ANALYSIS

“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.) Trial judges are required “to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)

As to each claim as framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. (CCP 437c(p)(2).) Once the defendant has met that burden, “the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.” (Id.) To establish a triable issue of material fact, the party opposing the motion must produce “substantial responsive evidence.” (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)

A. First Cause of Action for Discrimination

To successfully assert a claim for discrimination, Plaintiff must satisfy the requirements of the three-step McDonnell Douglas test. (See Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 354-55.) Generally, a prima facie case requires showing that (1) plaintiff was a member of a protected class; (2) they were qualified for the position they sought or were performing competently in the position they held; (3) plaintiff suffered an adverse employment action, such as termination, demotion, or denial of an available job; and (4) some other circumstance suggests discriminatory motive. (See id. at 355.)

Once a plaintiff has established a prima facie case, there is a “rebuttable” but “legally mandatory” presumption of discrimination. (Id. at 355.) The burden then shifts to the defendant to rebut the presumption by producing admissible evidence that the defendant’s “action was taken for a legitimate, nondiscriminatory reason.” (Id. at 355-356.)

If the defendant meets its burden, “the presumption of discrimination disappears.” (Id. at 356.) The plaintiff must then show that the defendant’s legitimate reason is merely pretext. (Id.) “Pretext may be inferred from the timing of the discharge decision, the identity of the decision-maker, or by the discharged employee's job performance before termination.” (Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 224.) “Pretext may [also] be demonstrated by showing that the proffered reason had no basis in fact, the proffered reason did not actually motivate the discharge, or, the proffered reason was insufficient to motivate discharge.” (Id.)

Defendants assert that Plaintiff’s claims for discrimination fail because Plaintiff does not have evidence her termination was motivated by her age or disability and because her employment was terminated for legitimate business reasons.

Defendants represent that Plaintiff was never denied time off for medical reasons, she had no scheduled surgeries at the time of termination, and Defendants never said anything derogatory about her disability or age. (UMF 12, 14, 54, 59.) Defendants assert Plaintiff cannot establish age discrimination because Plaintiff’s supervisors were over 10 years older than Plaintiff, the average age of workers at MFF were over 50, Plaintiff was offered a new position at age 60, and there were 7 women employed above the age of 60. (UMF 2, 5-6, 17-18, 47-53.)

Defendants posit Plaintiff was terminated because of poor work performance. Defendants present evidence purporting to show Plaintiff performed her work assignments too slowly and Plaintiff was unable to consistently follow directions. (UMF 35-45.)

In opposition, Plaintiff presents evidence showing her pace at work (correcting transcriptions of audio files) was due to her arthritis. (AUMF 199.) Plaintiff represents that Defendants were aware of her condition, having discussed it four to five times in 2019 and 2020, and did not offer or ask Plaintiff if she required accommodation. (AUMF 196-205.) Plaintiff also asserts Defendants did not follow the normal protocol for terminations when firing Plaintiff. For example, Plaintiff’s supervisor, Larry Lesser, terminated Plaintiff without consulting human resources and told human resources he had terminated Plaintiff before he had done so. (AUMF 297-303, 307, 327, 329.) This is sufficient to create a triable issue of fact as to pretext.

Defendants’ motion for summary judgment is DENIED. Defendants’ motion for summary adjudication of the first cause of action for discrimination is DENIED.

B. Second Cause of Action for Harassment

A hostile work environment is a recognized form of harassment. To establish a hostile work environment, harassment must be so severe or pervasive as to alter the conditions of the victim’s employment and create an abusive working environment based on the protected characteristic. (See Hughes v. Pair (2009) 46 Cal.4th 1045, 1043.)

Defendants assert Plaintiff’s claim for harassment fails because any incidents of harassment were sporadic and unrelated to her disability or age. In 2019, Larry Lesser yelled expletives at Plaintiff in response to Plaintiff’s complaint about the temperature in his office. Defendants assert this incident does not create a hostile work environment. In opposition, Plaintiff represents that she complained about the temperature in Lesser’s office because cold temperatures exacerbate her arthritis. Plaintiff also presents evidence showing Lesser berated her for buying a cart to help her carry heavy objects. (AUMF 146, 148-150.) This is sufficient to create a triable issue of fact as to harassment.

Defendants’ motion for summary adjudication of the second cause of action is DENIED.

C. Third and Ninth Causes of Action for Retaliation

To establish retaliation under FEHA, a plaintiff must show that “(1) he or she engaged in a ‘protected activity,’ (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer’s action.” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.) A retaliation claim can be brought by an employee who has complained of conduct reasonably believed to be discriminatory. (Id. at 1043; see also Kelley v. Conco Companies (2011) 196 Cal.App.4th 191, 209-10.)

“The elements of a section 1102.5(b) retaliation cause of action require that (1) the plaintiff establish a prima facie case of retaliation, (2) the defendant provide a legitimate, nonretaliatory explanation for its acts, and (3) the plaintiff show this explanation is merely pretext for the retaliation.” (Patten v. Grant Joint Union High School Dist. (2005) 134 Cal.App.4th 1378, 1384.)

Defendants argue that Plaintiff cannot establish retaliation because she did not engage in protected activity. Defendants assert Plaintiff did not complain regarding violations of FEHA, participate in proceedings, or file a complaint prior to the termination of her employment. (UMF 64-66.) In opposition, Plaintiff presents evidence showing she complained of a discriminatory write-up in 2016 and thereafter was seen as a “complainer.” (AUMF 81-123.) Plaintiff asserts that this contributed to her termination. This is sufficient to establish a triable issue of fact as to retaliation.

Defendants’ motion for summary adjudication of the third and ninth causes of action is DENIED.

D. Fourth and Fifth Causes of Action for Failure to Accommodate and Failure to Engage in the Interactive Process

Government Code section 12940(m) provides that it is an unlawful employment practice “[f]or an employer . . . to fail to make reasonable accommodation for the known physical or mental disability of an applicant or employee.” (Govt. Code, 12940(m)(1).)

Government Code section 12940(n) provides that it is an unlawful employment practice “[f]or an employer . . . to fail to engage in a timely, good faith, interactive process with the employee or applicant to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee or applicant with a known physical or mental disability or known medical condition.” (Govt. Code, 12940(n).)

Defendants assert Plaintiff cannot establish claims for failure to accommodate and failure to engage in the interactive process because Plaintiff did not request any accommodations, and therefore no accommodations were denied. (UMF 68-78.) Plaintiff disputes these facts and represents that Defendants knew of her arthritis, failed to provide her with an ergonomic keyboard and cart, and failed to commence and continually engage in the interactive process. (See AUMF 136-139.) This establishes a triable issue of fact.

Defendants’ motion for summary adjudication of the fourth and fifth causes of action is DENIED.

E. Sixth, Seventh, Eighth and Tenth Causes of Action for Failure to Prevent, Negligent Supervision, Wrongful Termination and Intentional Infliction of Emotional Distress, and Punitive Damages

Defendants argue that the sixth, seventh, eighth and tenth causes of action and the claim for punitive damages fail because Plaintiff cannot establish discrimination, harassment, or retaliation. As discussed, Plaintiff has shown triable issues of fact as to these causes of action.

Defendants’ motion for summary adjudication of the sixth, seventh, eighth and tenth causes of action and claim for punitive damages is DENIED.

Case Number: *******7404 Hearing Date: January 13, 2023 Dept: 54

Hearing Date: January 13, 2023

Department 54, Judge Maurice A. Leiter

Motion to Compel Mental Examination of Plaintiff;

Motion to Compel Neurological Examination of Plaintiff

Moving Party: Defendants The Milken Family Foundation, Gary Panas and Larry Lesser

Responding Party: Plaintiff Gayl Abbey

T/R: DEFENDANTS’ MOTION TO COMPEL MENTAL EXAMINATION IS GRANTED.

DEFENDANTS’ MOTION TO COMPEL NEUROLOGICAL EXAM IS DENIED.

DEFENDANTS TO NOTICE.

If the parties wish to submit on the tentative, please email the courtroom at SMCdept54@lacourt.org with notice to opposing counsel (or self-represented party) before 8:00 am on the day of the hearing.

The Court considers the moving papers, opposition, and replies.

“(a) If any party desires to obtain discovery by a physical examination other than that described in Article 2 (commencing with Section 2032.210), or by a mental examination, the party shall obtain leave of court. (b) A motion for an examination under subdivision (a) shall specify the time, place, manner, conditions, scope, and nature of the examination, as well as the identity and the specialty, if any, of the person or persons who will perform the examination. The motion shall be accompanied by a meet and confer declaration under Section 2016.040.” (CCP 2032.310.) “The court shall grant a motion for a physical or mental examination under Section 2032.310 only for good cause shown.” (CCP 2032.320(a).)

Defendants move to compel Plaintiff to sit for a mental exam and a neurological exam. Plaintiff has placed her mental condition at issue in this action; she claims emotional distress damages. This is good cause to order an independent mental examination. Defendants’ motion to compel the mental examination complies with CCP 2032.310(b).

Defendants assert Plaintiff has placed her neurological condition at issue because Plaintiff stated in discovery that she suffers from “loss of concentration, forgetfulness, and lessened ability to think clearly;” she stated “I don’t know” a significant number of times at deposition; and her medical records indicate diagnoses of memory loss and concussion. In opposition, Plaintiff asserts the examinations are redundant and the neurological exam is not supported by good cause.

That Plaintiff has shown some symptoms of memory loss is not sufficient to order an invasive and redundant neurological exam. Should the mental exam indicate a clear and definite need for a neurological exam, the issue may be revisited.

Defendants’ motion to compel mental examination is GRANTED. Defendants’ motion to compel neurological exam is DENIED.