This case was last updated from Los Angeles County Superior Courts on 12/07/2021 at 17:54:10 (UTC).

HECTOR CARREON VS U.S. FOODSERVICE, INC., ET AL.

Case Summary

On 04/02/2020 HECTOR CARREON filed a Labor - Wrongful Termination lawsuit against U S FOODSERVICE, 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 LAURA A. SEIGLE. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******3066

  • Filing Date:

    04/02/2020

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Labor - Wrongful Termination

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

LAURA A. SEIGLE

 

Party Details

Plaintiff

CARREON HECTOR

Defendants

TORRES JESUS

U.S. FOODSERVICE INC.

Interested Party

SPIRIT FAMILY SERVICES

Attorney/Law Firm Details

Plaintiff Attorney

LYON GEOFFREY C.

Defendant Attorney

ROSENBERG DAVID SAMUEL

 

Court Documents

Opposition - OPPOSITION PLAINTIFF CARREONS OPPOSITION TO DEFENDANTS EX PARTE APPLICATION FOR AN ORDER RULING ON U.S. FOODS MOTION IN LIMINE NO. 9 OR IN THE ALTERNATIVE, FOR AN ORDER GRANTING US FOO

11/29/2021: Opposition - OPPOSITION PLAINTIFF CARREONS OPPOSITION TO DEFENDANTS EX PARTE APPLICATION FOR AN ORDER RULING ON U.S. FOODS MOTION IN LIMINE NO. 9 OR IN THE ALTERNATIVE, FOR AN ORDER GRANTING US FOO

Ex Parte Application - EX PARTE APPLICATION FOR AN ORDER RULING ON US FOODS MOTION IN LIMINE NO. 9 OR, IN THE ALTERNATIVE, FOR AN ORDER GRANTING US FOODS LEAVE TO FILE A MOTION FOR SUMMARY ADJUDI

11/29/2021: Ex Parte Application - EX PARTE APPLICATION FOR AN ORDER RULING ON US FOODS MOTION IN LIMINE NO. 9 OR, IN THE ALTERNATIVE, FOR AN ORDER GRANTING US FOODS LEAVE TO FILE A MOTION FOR SUMMARY ADJUDI

Declaration - DECLARATION OF JONATHAN L. BROPHY IN SUPPORT OF DEFENDANT US FOODS, INC.S EX PARTE APPLICATION FOR AN ORDER RULING ON US FOODS MOTION IN LIMINE NO. 9 OR, IN THE ALTERNATIVE, FOR AN ORD

11/29/2021: Declaration - DECLARATION OF JONATHAN L. BROPHY IN SUPPORT OF DEFENDANT US FOODS, INC.S EX PARTE APPLICATION FOR AN ORDER RULING ON US FOODS MOTION IN LIMINE NO. 9 OR, IN THE ALTERNATIVE, FOR AN ORD

Minute Order - MINUTE ORDER (HEARING ON EX PARTE APPLICATION FOR AN ORDER)

11/30/2021: Minute Order - MINUTE ORDER (HEARING ON EX PARTE APPLICATION FOR AN ORDER)

Notice of Ruling - NOTICE OF RULING RE: DEFENDANT US FOODS, INC.S EX PARTE APPLICATION FOR AN ORDER RULING ON US FOODS MOTION IN LIMINE NO. 9 OR, IN THE ALTERNATIVE, FOR AN ORDER GRANTING US FOODS L

12/3/2021: Notice of Ruling - NOTICE OF RULING RE: DEFENDANT US FOODS, INC.S EX PARTE APPLICATION FOR AN ORDER RULING ON US FOODS MOTION IN LIMINE NO. 9 OR, IN THE ALTERNATIVE, FOR AN ORDER GRANTING US FOODS L

Reply - REPLY DEFENDANT US FOODS, INC.S REPLY IN SUPPORT OF MOTION IN LIMINE NO. 4 TO EXCLUDE UNPRODUCED DOCUMENTS AND WITNESSES NOT IDENTIFIED DURING DISCOVERY; DECLARATION OF DAVID ROSENBERG IN SUP

9/27/2021: Reply - REPLY DEFENDANT US FOODS, INC.S REPLY IN SUPPORT OF MOTION IN LIMINE NO. 4 TO EXCLUDE UNPRODUCED DOCUMENTS AND WITNESSES NOT IDENTIFIED DURING DISCOVERY; DECLARATION OF DAVID ROSENBERG IN SUP

Notice - NOTICE DEFENDANT US FOODS, INC.S NOTICE OF PLAINTIFF HECTOR CARREONS NON-OPPOSITION TO US FOODS MOTIONS IN LIMINE NOS. 5 AND 6 AND MOTION TO BIFURCATE

9/27/2021: Notice - NOTICE DEFENDANT US FOODS, INC.S NOTICE OF PLAINTIFF HECTOR CARREONS NON-OPPOSITION TO US FOODS MOTIONS IN LIMINE NOS. 5 AND 6 AND MOTION TO BIFURCATE

Reply - REPLY DEFENDANT US FOODS, INC.S REPLY IN SUPPORT OF MOTION IN LIMINE NO. 8 TO EXCLUDE TESTIMONY BY PLAINTIFFS RETAINED ECONOMIC DAMAGES EXPERT

9/27/2021: Reply - REPLY DEFENDANT US FOODS, INC.S REPLY IN SUPPORT OF MOTION IN LIMINE NO. 8 TO EXCLUDE TESTIMONY BY PLAINTIFFS RETAINED ECONOMIC DAMAGES EXPERT

Reply - REPLY DEFENDANT US FOODS, INC.S REPLY IN SUPPORT OF MOTION IN LIMINE NO. 3 TO EXCLUDE EVIDENCE REGARDING NON-ASSERTED AND DISMISSED CLAIMS

9/27/2021: Reply - REPLY DEFENDANT US FOODS, INC.S REPLY IN SUPPORT OF MOTION IN LIMINE NO. 3 TO EXCLUDE EVIDENCE REGARDING NON-ASSERTED AND DISMISSED CLAIMS

Reply - REPLY DEFENDANT US FOODS, INC.S REPLY IN SUPPORT OF MOTION IN LIMINE NO. 7 TO EXCLUDE EVIDENCE OF ECONOMIC AND NON-ECONOMIC DAMAGES RELATED TO PLAINTIFFS LAWFUL TERMINATION

9/27/2021: Reply - REPLY DEFENDANT US FOODS, INC.S REPLY IN SUPPORT OF MOTION IN LIMINE NO. 7 TO EXCLUDE EVIDENCE OF ECONOMIC AND NON-ECONOMIC DAMAGES RELATED TO PLAINTIFFS LAWFUL TERMINATION

Reply - REPLY DEFENDANT US FOODS, INC.S REPLY IN SUPPORT OF MOTION IN LIMINE NO. 9 TO EXCLUDE EVIDENCE OF DAMAGES PREEMPTED BY PLAINTIFF HECTOR CARREONS WORKERS COMPENSATION CLAIM AND SETTLEMENT; D

9/27/2021: Reply - REPLY DEFENDANT US FOODS, INC.S REPLY IN SUPPORT OF MOTION IN LIMINE NO. 9 TO EXCLUDE EVIDENCE OF DAMAGES PREEMPTED BY PLAINTIFF HECTOR CARREONS WORKERS COMPENSATION CLAIM AND SETTLEMENT; D

Reply - REPLY DEFENDANT US FOODS, INC.S REPLY IN SUPPORT OF MOTION IN LIMINE NO. 1 TO EXCLUDE EVIDENCE OF ANY PURPORTED CONDUCT THAT OCCURRED BEFORE PLAINTIFF EXECUTED A GENERAL RELEASE OF CLAIMS ON

9/27/2021: Reply - REPLY DEFENDANT US FOODS, INC.S REPLY IN SUPPORT OF MOTION IN LIMINE NO. 1 TO EXCLUDE EVIDENCE OF ANY PURPORTED CONDUCT THAT OCCURRED BEFORE PLAINTIFF EXECUTED A GENERAL RELEASE OF CLAIMS ON

Reply - REPLY DEFENDANT US FOODS, INC.S REPLY IN SUPPORT OF MOTION IN LIMINE NO. 2 TO PRECLUDE EVIDENCE OF ALLEGED UNLAWFUL TREATMENT OF OTHER EMPLOYEES (ME TOO EVIDENCE)

9/27/2021: Reply - REPLY DEFENDANT US FOODS, INC.S REPLY IN SUPPORT OF MOTION IN LIMINE NO. 2 TO PRECLUDE EVIDENCE OF ALLEGED UNLAWFUL TREATMENT OF OTHER EMPLOYEES (ME TOO EVIDENCE)

Reply - REPLY IN SUPPORT OF PLAINTIFF'S MOTION IN LIMINE NO. 1

9/29/2021: Reply - REPLY IN SUPPORT OF PLAINTIFF'S MOTION IN LIMINE NO. 1

Reply - REPLY IN SUPPORT OF PLAINTIFF'S MOTION IN LIMINE NO. 2

9/29/2021: Reply - REPLY IN SUPPORT OF PLAINTIFF'S MOTION IN LIMINE NO. 2

Exhibit List - EXHIBIT LIST JOINT EXHIBIT LIST

9/29/2021: Exhibit List - EXHIBIT LIST JOINT EXHIBIT LIST

Jury Instructions - JURY INSTRUCTIONS DEFENDANT US FOODS, INC.S PROPOSED SPECIAL JURY INSTRUCTIONS

9/29/2021: Jury Instructions - JURY INSTRUCTIONS DEFENDANT US FOODS, INC.S PROPOSED SPECIAL JURY INSTRUCTIONS

Jury Instructions - JURY INSTRUCTIONS JOINT LIST OF AGREED UPON JURY INSTRUCTIONS

9/29/2021: Jury Instructions - JURY INSTRUCTIONS JOINT LIST OF AGREED UPON JURY INSTRUCTIONS

99 More Documents Available

 

Docket Entries

  • 04/25/2022
  • Hearing04/25/2022 at 10:00 AM in Department 48 at 111 North Hill Street, Los Angeles, CA 90012; Jury Trial

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  • 04/11/2022
  • Hearing04/11/2022 at 08:30 AM in Department 48 at 111 North Hill Street, Los Angeles, CA 90012; Final Status Conference

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  • 12/03/2021
  • DocketNotice of Ruling (RE: DEFENDANT US FOODS, INC.?S EX PARTE APPLICATION FOR AN ORDER RULING ON US FOODS? MOTION IN LIMINE NO. 9 OR, IN THE ALTERNATIVE, FOR AN ORDER GRANTING US FOODS LEAVE TO FILE A MOTION FOR SUMMARY ADJUDICATION ON THE ISSUE OF DAMAGES); Filed by U.S. Foodservice, Inc. (Defendant)

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  • 11/30/2021
  • Docketat 08:30 AM in Department 48, Laura A. Seigle, Presiding; Hearing on Ex Parte Application (FOR AN ORDER) - Held

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  • 11/30/2021
  • DocketMinute Order ( (Hearing on Ex Parte Application FOR AN ORDER)); Filed by Clerk

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  • 11/29/2021
  • DocketOpposition (PLAINTIFF CARREON?S OPPOSITION TO DEFENDANT?S EX PARTE APPLICATION FOR AN ORDER RULING ON U.S. FOODS? MOTION IN LIMINE NO. 9 OR IN THE ALTERNATIVE, FOR AN ORDER GRANTING US FOODS LEAVE TO FILE A SECOND MSA ON THE ISSUE OF DAMAGES;); Filed by Hector Carreon (Plaintiff)

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  • 11/29/2021
  • DocketEx Parte Application (FOR AN ORDER RULING ON US FOODS? MOTION IN LIMINE NO. 9 OR, IN THE ALTERNATIVE, FOR AN ORDER GRANTING US FOODS LEAVE TO FILE A MOTION FOR SUMMARY ADJUDI); Filed by U.S. Foodservice, Inc. (Defendant)

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  • 11/29/2021
  • DocketDeclaration (OF JONATHAN L. BROPHY IN SUPPORT OF DEFENDANT US FOODS, INC.?S EX PARTE APPLICATION FOR AN ORDER RULING ON US FOODS? MOTION IN LIMINE NO. 9 OR, IN THE ALTERNATIVE, FOR AN ORDER GRANTING US); Filed by U.S. Foodservice, Inc. (Defendant)

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  • 10/20/2021
  • DocketNotice of Ruling; Filed by U.S. Foodservice, Inc. (Defendant)

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  • 10/19/2021
  • Docketat 08:30 AM in Department 48, Laura A. Seigle, Presiding; Hearing on Motion to Compel (Depositions of Jerry McInnes and Sarah Zavala) - Not Held - Advanced and Vacated

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106 More Docket Entries
  • 05/27/2020
  • DocketNotice (CONSENT TO ELECTRONIC SERVICE AND NOTICE OF ELECTRONIC SERVICE ADDRESS); Filed by U.S. Foodservice, Inc. (Defendant)

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  • 05/26/2020
  • DocketNotice (CONSENT TO ELECTRONIC SERVICE AND NOTICE OF ELECTRONIC SERVICE ADDRESS); Filed by Hector Carreon (Plaintiff)

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  • 05/07/2020
  • DocketAnswer (to Complaint); Filed by U.S. Foodservice, Inc. (Defendant)

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  • 04/15/2020
  • DocketProof of Personal Service; Filed by Hector Carreon (Plaintiff)

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  • 04/13/2020
  • DocketProof of Service by Substituted Service; Filed by Hector Carreon (Plaintiff)

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  • 04/03/2020
  • DocketNotice of Case Management Conference; Filed by Clerk

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  • 04/02/2020
  • DocketComplaint; Filed by Hector Carreon (Plaintiff)

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  • 04/02/2020
  • DocketSummons (on Complaint); Filed by Hector Carreon (Plaintiff)

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  • 04/02/2020
  • DocketNotice of Case Assignment - Unlimited Civil Case; Filed by Clerk

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  • 04/02/2020
  • DocketCivil Case Cover Sheet; Filed by Hector Carreon (Plaintiff)

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Tentative Rulings

b'

Case Number: 20STCV13066 Hearing Date: October 4, 2021 Dept: 48

\r\n\r\n

[TENTATIVE] ORDER RE MOTIONS IN LIMINE; JURY\r\nINSTRUCTIONS

\r\n\r\n

Plaintiff’s MIL No. 1

\r\n\r\n

The\r\nmoving papers were not filed.

\r\n\r\n

Plaintiff’s MIL No. 2

\r\n\r\n

Plaintiff\r\nHector Carreon seeks to exclude all evidence concerning his criminal records as\r\nirrelevant, not admissible to attack his credibility, improper character\r\nevidence, and unduly prejudicial. \r\nPlaintiff provides no details about his criminal record.

\r\n\r\n

Defendant U.S.\r\nFoodservice, Inc. argues evidence of his criminal record is relevant to his\r\nemotional distress claim and the other stressors in his life including problems\r\nwith his wife and domestic violence.

\r\n\r\n

Defendant can ask\r\ngenerally about stress in his family life without asking about criminal charges\r\nfor domestic violence that apparently were dropped due to lack of\r\nevidence. The motion is GRANTED.

\r\n\r\n

Defendant’s MIL No. 1

\r\n\r\n

Defendant\r\nU.S. Foodservice, Inc. moves to exclude all evidence of conduct occurring\r\nbefore the July 25, 2019 general release as prejudicial and confusing. This evidence potentially is relevant to the\r\ncontext in which the event in question occurred. The jury instructions and verdict form can state\r\nthat the only incident for which Plaintiff claims damages is the one alleged\r\nincident of harassment. Therefore, the\r\nmotion is DENIED.

\r\n\r\n

Defendant’s MIL No. 2

\r\n\r\n

Defendant\r\nU.S. Foodservice, Inc. moves to exclude me too evidence as irrelevant,\r\ninadmissible character evidence, and unduly prejudicial. In particular, Defendant points to\r\nPlaintiff’s testimony about seeing videos of other employees harassing each\r\nother and that Defendant did not take any action to stop the harassment of\r\nother employees.

\r\n\r\n

This\r\nevidence is potentially relevant to showing the context in which the event in\r\nquestion occurred, Defendant’s awareness of problems with sexual harassment in\r\nthe warehouse, and Defendant’s alleged failure to take steps to stop it. The other incidents appear to involve\r\nharassment and conduct of the type at issue here. The motion is DENIED.

\r\n\r\n

Defendant’s MIL No. 3

\r\n\r\n

Defendant\r\nU.S. Foodservice, Inc. moves to exclude all evidence of the second, third,\r\nfifth, sixth, seventh, eighth, ninth and tenth causes of action, as well as any\r\nunpled causes of action. Defendant does\r\nnot identify any specific evidence that is no longer at issue. Therefore this motion is too vague and is\r\nDENIED.

\r\n\r\n

Defendant’s MIL No. 4

\r\n\r\n

Defendant U.S.\r\nFoodservice, Inc. moves to exclude unproduced documents and unidentified\r\nwitnesses. Defendant does not identify\r\nany particular document or witness at issue. \r\nTherefore, this motion is too vague. \r\nThe motion is DENIED.

\r\n\r\n

Defendant’s MIL No. 5

\r\n\r\n

Defendant moves to\r\nexclude from trial all non-party and no-expert witnesses. The motion is GRANTED.

\r\n\r\n

Defendant’s MIL No. 6

\r\n\r\n

Defendant moves to\r\nexclude evidence of its financial condition and insurance coverage. The motion is GRANTED for the non-punitive\r\ndamages phase.

\r\n\r\n

Defendant’s MIL Nos. 7, 8

\r\n\r\n

Defendant U.S.\r\nFoodservice, Inc. moves to exclude evidence of Plaintiff’s damages caused by\r\nhis termination, including expert testimony. \r\nDefendant argues Plaintiff cannot receive damages for the\r\nalready-dismissed causes of action. The\r\nremaining causes of action – the first and fourth causes of action – seek\r\ndamages for sexual harassment, a hostile work environment, and Defendant’s\r\nfailure to stop the harassment.

\r\n\r\n

Plaintiff argues lost\r\nwages may be awarded if proximate cause is shown and that he was terminated as\r\na result of the harassment.

\r\n\r\n

The first cause of action\r\nalleges Defendant created a hostile work environment, Defendant’s employees\r\nharassed Plaintiff on the basis of Plaintiff’s sex and gender, and he was\r\nharmed as a result. The fourth cause off\r\naction alleges Defendant failed to take actions to stop the harassment against\r\nPlaintiff. Neither cause of action\r\nalleges the harassment and hostile work environment caused Defendant to terminate\r\nPlaintiff.

\r\n\r\n

In the ruling on the\r\nmotion for summary judgment, the Court determined Defendant had legitimate and\r\nnondiscriminatory reasons for terminating Plaintiff and Plaintiff did not have\r\nevidence the termination was motivated at least in part by discrimination or\r\nretaliation. This is not a case where\r\nthe plaintiff left a job due to intolerable conditions and could only find\r\nlower paying employment or where the employer paid the employee less due to sex\r\ndiscrimination. Plaintiff cannot now try\r\nto turn his harassment and hostile work environment causes of action into the\r\nalready-adjudicated wrongful termination causes of action.

\r\n\r\n

Therefore, the motions are\r\nGRANTED concerning damages resulting from Plaintiff’s termination such as lost\r\nwages. In addition, Plaintiff has not\r\nshown his economic damages expert has the qualifications to testify about\r\nemotional distress damages. The motion\r\nis GRANTED in that respect as well.

\r\n\r\n

Defendant’s MIL No. 9

\r\n\r\n

Defendant seeks to\r\nexclude evidence of Plaintiff’s medical expenses and emotional distress damages\r\nas irrelevant, prejudicial, and inadmissible under workers’ compensation\r\nlaw. Defendant argues the Court already\r\nruled that Plaintiff cannot prove Defendant ratified the other employees’\r\nconduct. That is not correct. In the ruling on the motion for summary\r\njudgment the Court ruled Plaintiff had not shown triable issues showing\r\nratification of assault and battery. The\r\nCourt did not make such a ruling regarding the harassment cause of action.

\r\n\r\n

The motion is DENIED.

\r\n\r\n

Defendant’s Motion to Bifurcate

\r\n\r\n

Defendant moves to bifurcate liability and punitive\r\ndamages phases. The motion is GRANTED.

\r\n\r\n

Jury Instructions

\r\n\r\n

No. 201: This instruction is appropriate for the\r\npunitive damage phase. If other elements\r\nof the claims or defenses require the clear and convincing standard of proof,\r\nthe parties should identify them.

\r\n\r\n

No. 204: If there is evidence of willful suppression,\r\nthis is an appropriate instruction.

\r\n\r\n

No. 430: This instruction is appropriate.

\r\n\r\n

No. 2521B: According to the CACI directions for use,\r\nthis instruction is for use in a hostile work environment case if the plaintiff\r\nwas not the target of the harassing conduct. \r\nHere Plaintiff alleges he was the target of the harassment, so CACI No.\r\n2521A is the proper instruction.

\r\n\r\n

No. 3946: This is the proper instruction for a\r\nbifurcated trial.

\r\n\r\n

No. 3949: This is a proper instruction for the second\r\nphase of the trial.

\r\n\r\n

Special No. 2: This instruction is denied. See the ruling on Defendant’s MIL No. 1. The parties are to meet and confer on an\r\ninstruction starting Plaintiff is claiming damages solely for events occurring\r\nafter July 25, 2019.

\r\n\r\n

Special No. 3: This instruction is denied. The CACI instructions cover harassment.

\r\n\r\n

Special Nos. 4, 5, 6: These instruction are denied. The CACI instructions cover damages.

\r\n\r\n

Moving party to give\r\nnotice.

\r\n\r\n

Parties who intend to\r\nsubmit on this tentative must send an email to the Court at\r\nSMCDEPT48@lacourt.org indicating intention to submit. Parties intending to appear are STRONGLY\r\nencouraged to appear remotely.

\r\n\r\n'b'

Case Number: 20STCV13066 Hearing Date: July 27, 2021 Dept: 48

\r\n\r\n

[TENTATIVE] ORDER RE: DEFENDANT’S MOTION FOR\r\nSUMMARY JUDGMENT

\r\n\r\n\r\n\r\n

On\r\nApril 2, 2020, Plaintiff Hector Carreon filed this action against Defendants U.S.\r\nFoodservice, Inc. and Jesus Torres. The Complaint\r\nalleges (1) harassment based on sex/gender in violation of the Fair Employment and\r\nHousing Act (“FEHA”); (2) discrimination based on sex/gender in violation of FEHA;\r\n(3) retaliation for opposing violations of FEHA; (4) failure to prevent and stop\r\nharassment, discrimination, and retaliation; (5) assault; (6) sexual battery; (7)\r\nintentional infliction of emotional distress (“IIED”); (8) battery; (9) whistleblower\r\nretaliation in violation of FEHA; and (10) wrongful termination in violation of\r\npublic policy. The Court entered default\r\nagainst Jesus Torres. On May 13, 2021, U.S.\r\nFoodservice, Inc. (“Defendant”) filed a motion for summary judgment, or in the alternative\r\nsummary adjudication.

\r\n\r\n

EVIDENTIARY\r\nOBJECTIONS

\r\n\r\n

Defendant\r\nfiled 36 pages of objections, including long arguments. A party is supposed to simply “[s]tate the ground\r\nfor each objection,” not make legal arguments. \r\n(California Rules of Court, rule 3.1354(b)(4).) The Court rules as follows:

\r\n\r\n

Nos.\r\n1-10, 12-17, 21-28, 30-35, 37-54, 57, 59, 60, 61, 63, 64, 65, 66, 68, 69, 70,\r\n71, 72, 73, 76: Overruled. The argument that statements in Plaintiff’s\r\ndeclaration are inadmissible due to the settlement agreement is not an\r\nevidentiary objection. The settlement\r\nagreement bars claims based upon past events but does not necessarily preclude\r\nthe admission of evidence about past events. \r\nStatements made by third parties to or in front of Plaintiff are not\r\nhearsay if offered as evidence of threats and harassment. Statements that Plaintiff made to management\r\nare not hearsay if offered to show notice to Defendant. Statements by the party opponent are an exception\r\nto the hearsay rule. Plaintiff’s\r\nstatements in his declaration that he informed Ramirez about the August 29,\r\n2019 incident before he left for home that morning (Carreon Decl., ¶ 21) does\r\nnot directly contradict his deposition testimony. At his September 9, 2020 deposition, he testified\r\nthat he told Ramirez about the incident the same day. (Carreon Depo. at p. 121;11-14.) He testified that he had interpreted a question\r\nin a prior deposition, to which he had answered that he had not told anyone, to\r\nask whether he had told a supervisor soon or right after the event. (Id. at pp. 125:14-126:20.)

\r\n\r\n

No.\r\n11: Sustained on lack of foundation.

\r\n\r\n

Nos.\r\n18-20, 29, 58, 62, 67, 74, 75 : \r\nSustained as irrelevant.

\r\n\r\n

No.\r\n36: Sustained on lack of foundation and\r\nspeculation.

\r\n\r\n

Nos.\r\n55, 56: Sustained on lack of foundation.

\r\n\r\n

BACKGROUND FACTS

\r\n\r\n

On\r\nJuly 18, 2018, Defendant hired Plaintiff at its facility located in La Mirada, California. (Undisputed Material Facts “UMF” 1.) On December 13, 2018, Plaintiff signed an acknowledgement\r\nthat he received Defendant’s Memo Packet 2019, which contains a variety of policies\r\nincluding its policies prohibiting discrimination, harassment, and retaliation. (UMF 2.) \r\nPlaintiff later testified that he understood the Defendant had a zero-tolerance\r\npolicy for workplace violence. (UMF 7.) Plaintiff also testified that he understood that\r\nhorseplay, throwing things, threatening, intimidating, harassing, or coercing fellow\r\nemployees on company property was a violation of company rules. (UMF 9.)

\r\n\r\n

On\r\nJuly 25, 2019, Plaintiff, Defendant, and Plaintiff’s union agreed that, in lieu\r\nof termination for dishonesty, Defendant would reinstate Plaintiff on a “last chance”\r\nagreement. (UMF 10.) Plaintiff signed a Settlement Agreement and General\r\nRelease, or “last chance” agreement. (UMF\r\n11.) As part of the “last chance” agreement,\r\nPlaintiff agreed that his disciplinary record would reflect a final warning for\r\nviolation of the company’s work rules on dishonesty. (UMF 13.) \r\nAs part of the “last chance” agreement, Plaintiff agreed that, if during\r\nthe next six months period of his employment, he had any type of violation of the\r\ncompany’s work rules, he would be terminated and that no other mitigating factors\r\nwould be considered. (UMF 14.) In exchange for Defendant’s agreement to reinstate\r\nPlaintiff, Plaintiff agreed to release and discharge the company from any and all\r\nclaims, debts, demand, actions, or causes of action of any kind, whether known or\r\nunknown, arising out of, or in any related to his discharge, reinstatement, and\r\nemployment. (UMF 15.) Plaintiff later testified that he understood that\r\nhe was entering into the agreement knowingly and after receiving fair representation\r\nfrom the union and a full and fair opportunity consider whether to accept to the\r\nagreement. (UMF 12.)

\r\n\r\n

On\r\nAugust 29, 2019, Plaintiff was involved in a workplace altercation with Jesus\r\nTorres. (UMF 16.) On August 30, 2019, Richard Starke and Enrique\r\nRamirez found a video clip of the August 29, 2019 incident involving Plaintiff and\r\nTorres. (UMF 18.) According to Ramirez, the video showed Plaintiff\r\nacting in an aggressive manner. (UMF 20.) Starke, Hugo Jimenez (Vice President of Operations),\r\nand Adrian Amaro (Director of Operations) agreed that the video clip appeared to\r\nshow Plaintiff and Torres committing acts of workplace violence, in violation of\r\nDefendant’s zero-tolerance policy for workplace violence. (UMF 21.) \r\nBased on Jimenez’s discussion with Starke and Amaro, Jimenez decided to suspend\r\nPlaintiff and Torres pending further investigation into the incident. (UMF 22.)

\r\n\r\n

On\r\nAugust 30, 2019, Starke reported the incident between Plaintiff and Torres to Defendant’s\r\ncheck-in line, and Defendant suspended Torres pending further investigation. (UMF 24, 24.) \r\nOn September 3, 2019, Defendant suspended Plaintiff. (UMF 25.)

\r\n\r\n

On\r\nSeptember 12, 2019, Plaintiff attended a meeting with Adam Methus (his union representative),\r\nTorres, and several members of Defendant’s management, including Starke, Ramirez,\r\nJimenez, Amaro, and Human Resources Business Partner Richard Padilla. (UMF 26-27, 29.) Methus told Defendant’s management that Plaintiff\r\nand Torres were just “horseplaying.” (UMF\r\n30.) During the meeting, Torres stated that\r\nhe and Plaintiff always joke around, that they were just joking around during the\r\nAugust 29 incident, and that they were both horseplaying during the incident. (UMF 31.) \r\nPlaintiff repeated the same things as Torres: that he and Torres are good\r\nfriends, that they were joking around, and that they were horseplaying. (UMF 32.) \r\nPlaintiff recalls speaking during the meeting, but he admits that he does\r\nnot remember the statements that he made. \r\n(UMF 33.) Plaintiff recalls that Torres\r\nmade a statement during the meeting but does not remember what Torres said. (UMF 34.) \r\nDefendant’s management stated that the August 29 incident between Plaintiff\r\nand Torres looked violent. (UMF 35.)

\r\n\r\n

After\r\nthe union grievance meeting, Padilla spoke with Jimenez and Jerry McInnes (Director\r\nof Labor Relations) to discuss the incident between Plaintiff and Torres and the\r\ngrievance meeting. (UMF 36.) Jimenez, McInnes, and Padilla all agreed that\r\nPlaintiff’s and Torres’s actions during the August 29, 2019 incident constituted\r\nterminable offenses – specifically, that Plaintiff and Torres had violated Defendant’s\r\nzero tolerance policy for workplace violence. \r\n(UMF 37.) On September 12, 2019, Jimenez\r\ndecided to terminate Plaintiff’s and Torres’s employment. (UMF 38.)

\r\n\r\n

LEGAL STANDARD

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For\r\neach claim in the complaint, the defendant moving for adjudication must satisfy\r\nthe initial burden of proof by showing that one or more elements of a cause of action\r\ncannot be established or that there is a complete defense to a cause of action. (Code Civ. Proc., § 437c, subd. (p)(2); Scalf\r\nv. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520 (Scalf).) Then the burden shifts to the plaintiff to show\r\nthat a triable issue of material fact exists as to that cause of action or a defense. (Code Civ. Proc., § 437c, subd. (p)(2); Scalf,\r\nsupra, 128 Cal.App.4th at p. 1520.) To establish a triable issue of material fact,\r\nthe party opposing the motion must produce “substantial responsive evidence.” (Sangster v. Paetkau (1998) 68 Cal.App.4th\r\n151, 162-163.)

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DISCUSSION

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A. Discrimination, Retaliation – Second,\r\nThird, Ninth, Tenth Causes of Action

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Defendant\r\nmoves for summary adjudication on the grounds that Plaintiff cannot establish his\r\nsecond cause of action for discrimination based on sex/gender, third cause of action\r\nfor retaliation, ninth cause of action for whistleblower retaliation, and tenth\r\ncause of action for wrongful termination in violation of public policy.

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An\r\nemployee’s prima facie claim of discrimination requires “(1) the employee’s membership\r\nin a classification protected by the statute; (2) discriminatory animus on the part\r\nof the employer toward members of that classification; (3) an action by the employer\r\nadverse to the employee’s interests; (4) a causal link between the discriminatory\r\nanimus and the adverse action; (5) damage to the employee; and (6) a causal link\r\nbetween the adverse action and the damage.” \r\n(Mamou v. Trendwest Resorts, Inc. (2008) 165 Cal.App.4th 686, 713.) If an employee makes a prima facie showing, the\r\nburden shifts to the employer to articulate a legitimate, nondiscriminatory reason\r\nfor the adverse action. (Id. at p.\r\n714.)

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“In\r\nan employment discrimination case, an employer may move for summary judgment against\r\na discrimination cause of action with evidence of a legitimate, nondiscriminatory\r\nreason for the adverse employment action. \r\n[Citation.] A legitimate, nondiscriminatory\r\nreason is one that is unrelated to prohibited bias and that, if true, would preclude\r\na finding of discrimination. [Citation.] The employer’s evidence must be sufficient to\r\nallow the trier of fact to conclude that it is more likely than not that one or\r\nmore legitimate, nondiscriminatory reasons were the sole basis for the adverse employment\r\naction.” (Featherstone v. Southern California\r\nPermanente Medical Group (2017) 10 Cal.App.5th 1150, 1158 (Featherstone).) Then the burden shifts to the employee “to present\r\nevidence that the employer’s decision was motivated at least in part by prohibited\r\ndiscrimination.” (Id. at pp. 1158-1159.) “The plaintiff’s evidence must be sufficient to\r\nsupport a reasonable inference that discrimination was a substantial motivating\r\nfactor in the decision. [Citation.] The stronger the employer’s showing of a legitimate,\r\nnondiscriminatory reason, the stronger the plaintiff’s evidence must be in order\r\nto create a reasonable inference of a discriminatory motive.” (Id. at p. 1159; see also Guz v. Bechtel\r\nNat. Inc. (2000) 24 Cal.4th 317, 357 [summary judgment is appropriate where\r\ndefendant provides “competent, admissible evidence” of “nondiscriminatory reasons”\r\nfor the adverse employment action and plaintiff did not “rebut this facially dispositive\r\nshowing by pointing to evidence which nonetheless raises a rational inference that\r\nintentional discrimination occurred”].)

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“The\r\nemployee’s ‘subjective beliefs in an employment discrimination case do not create\r\na genuine issue of fact; nor do uncorroborated and self-serving declarations.’ [Citation.] \r\n(Featherstone, supra, 10 Cal.App.5th at p. 1159.) “To show that an employer’s reason for termination\r\nis pretextual, an employee ‘ “cannot simply show that the employer’s decision was\r\nwrong or mistaken, since the factual dispute at issue is whether discriminatory\r\nanimus motivated the employer, not whether the employer is wise, shrewd, prudent\r\nor competent.” ’ [Citation.] To meet his or her burden, the employee ‘ “must\r\ndemonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or\r\ncontradictions in the employer’s proffered legitimate reasons for its action that\r\na reasonable factfinder could rationally find them ‘unworthy of credence,’ ” ’ and\r\nhence infer ‘ “the employer did not act for [the asserted] nondiscriminatory reasons.”\r\n’ [Citations.]” (Ibid.)

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To\r\nestablish a prima facie case of retaliation under FEHA, a plaintiff must show “(1)\r\nhe or she engaged in a ‘protected activity,’ (2) the employer subjected the employee\r\nto an adverse employment action, and (3) a causal link existed between the protected\r\nactivity and the employer’s action. [Citations.] Once an employee establishes a prima facie case,\r\nthe employer is required to offer a legitimate, nonretaliatory reason for the adverse\r\nemployment action. [Citation.] If the employer produces a legitimate reason for\r\nthe adverse employment action, the presumption of retaliation ‘‘‘drops out of the\r\npicture,’’’ and the burden shifts back to the employee to prove intentional retaliation.\r\n[Citation.]” (Yanowitz v. L’Oreal USA,\r\nInc. (2005) 36 Cal.4th 1028, 1042.)

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Defendant\r\ncontends that, even if Plaintiff can make a prima facie showing, it had legitimate\r\nand nondiscriminatory reasons for its actions. \r\n(Motion at p. 9.) Defendant provided\r\nsufficient evidence supporting a conclusion that it had nondiscriminatory,\r\nlegitimate, and non-retaliatory reasons for terminating Plaintiff due to the August\r\n29, 2019 incident and participating in workplace violence. (E.g., UMF 21, 37-38; Jimenez Decl. ¶¶ 5, 11-12;\r\nPadilla Decl. ¶ 21.) Defendant has met its\r\ninitial burden. The burden shifts to Plaintiff\r\nto present evidence that the employer’s decision was motivated at least in part\r\nby prohibited discrimination or in retaliation.

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Plaintiff\r\nargues some women worked in the warehouse but that no women were subject to harassment\r\nas the men were. (Opposition at p. 18.)\r\n But Plaintiff does not cite evidence of\r\nthat assertion. Plaintiff argues that he\r\nwas not violent and that interpretation of the August 29, 2019 incident is a jury\r\nquestion. (Opposition at p. 17.) But even if Plaintiff’s assertion is correct\r\nand he did not act violently on August 29, 2019, that is not enough to defeat\r\nsummary judgment. “To show that an employer’s\r\nreason for termination is pretextual, an employee ‘ “cannot simply show that the\r\nemployer’s decision was wrong or mistaken . . .” ’ ” (Featherstone, supra, 10 Cal.App.5th at\r\np. 1159.) Thus, even if Defendant’s determination\r\nthat Plaintiff engaged in violence or horseplay was incorrect, that does not\r\nestablish a disputed fact for trial. Plaintiff\r\ndid not submit evidence that a reasonable factfinder could rationally find Defendant’s\r\nreason for termination is “unworthy of credence.” (Ibid.) And, whether or not Plaintiff complained\r\nabout Torres’ conduct on August 29, 2019, Plaintiff did not submit evidence that\r\nDefendant’s reason for termination – workplace violence – was pretextual.

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Because\r\nPlaintiff did not submit evidence that the termination of his employment was motivated\r\nat least in part by discrimination or retaliation, he failed to show an issue remaining\r\nfor the trier of fact. Therefore, summary\r\nadjudication is granted on the second, third, ninth, and tenth causes of action.

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B. Harassment – First Cause of Action

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Defendant\r\nalso moves for summary adjudication of the first cause of action for harassment\r\nbased on sex/gender on the grounds that Plaintiff’s alleged harasser was not a supervisor\r\nunder FEHA. Defendant also argues it is not\r\nvicariously liable for Torres’ conduct because there is no evidence Defendant knew\r\nabout the claimed harassment. (Opposition\r\nat p. 16.)

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“Under\r\nFEHA, an employer is ‘strictly liable for the harassing conduct of its agents and\r\nsupervisors.’” (Fisher v. San Pedro Peninsula\r\nHospital (1989) 214 Cal.App.3d 590, 608, fn. 6 (Fisher).) It is undisputed that Torres was not a supervisor. (UMF 50-51.) \r\nTherefore, Defendant is liable for Torres’s conduct only if it “[knew] or\r\nshould have known of this conduct and fail[ed] to take immediate and appropriate\r\ncorrective action.” (Fisher, supra,\r\n214 Cal.App.3d at p. 608, fn. 6.) Defendant\r\nsubmitted evidence that when it suspended Torres the day after the incident, on\r\nAugust 30, 2019, and terminated his employment on September 12, 2019. (UMF 22-24, 37-38.) Defendant has met its initial burden of\r\nshowing it took immediate and appropriate corrective action.

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Plaintiff\r\nsubmits evidence that in early August 2019, Torres threatened Plaintiff, and Plaintiff\r\ncomplained to Ramirez. (Opposition at p.\r\n13; Plaintiff Decl. ¶ 15.) Ramirez told Plaintiff\r\nthat he would talk to Torres. (Plaintiff\r\nDecl. ¶ 15.) Plaintiff argues Defendant\r\ndid not discipline Torres. Defendant contends\r\nPlaintiff has no evidence that Ramirez failed to speak with Torres or failed to\r\ndiscipline him. (Reply at p. 7.) However, Defendant also provides no evidence. Plaintiff’s early August 2019 report of Torres’s\r\nthreat creates a triable issue as to whether Defendant knew about Torres’ conduct\r\nbefore the August 29, 2019 incident and failed to take appropriate action.

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Summary\r\nadjudication for the first cause of action is denied.

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C. Failure to Prevent – Fourth Cause of\r\nAction

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Defendant\r\nmoves for summary adjudication of the fourth cause of action for failure to prevent\r\nharassment, discrimination, and retaliation on the grounds that it is derivative\r\nof other claims that fail.

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Failure\r\nto prevent harassment, discrimination, or retaliation in violation of FEHA requires\r\nthat (1) plaintiff was an employee of defendant, (2) plaintiff was subjected to\r\ndiscrimination or retaliation in the course of employment, (3) defendant failed\r\nto take all reasonable steps to prevent the discrimination or retaliation, (4) plaintiff\r\nwas harmed, and (5) defendant’s failure to take all reasonable steps to prevent\r\ndiscrimination and/or retaliation was a substantial factor in causing plaintiff’s\r\nharm. (CACI 2527.)

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Because\r\nthe Court denied summary adjudication of the first cause of action for harassment,\r\nsummary adjudication of the fourth cause of action is denied.

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D. Assault, Sexual Battery, IIED, Battery\r\n– Fifth-Eighth Causes of Action

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Defendant\r\nmoves for summary adjudication of the fifth through eighth causes of action on the\r\ngrounds that they are barred by the exclusive remedy provisions of the Workers’\r\nCompensation Act and Defendant did not ratify the conduct.

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Generally,\r\nthe workers’ compensation system provides the sole and exclusive remedy for injuries\r\nsustained by employees arising out of and in the course of the employment, including\r\ninjuries caused by other employees. (See\r\nLab. Code, §§ 3600-3602.) Although an employee\r\nmay bring a damages action for injuries caused by another employee, “[i]n no event\r\n. . . shall the employer be held liable, directly or indirectly, for damages awarded\r\nagainst, or for a liability incurred by the other employee.” (Lab. Code, § 3601, subds. (a)-(b).) This section “unambiguously prohibits imposing\r\ncivil liability on an employer for one employee’s assault and battery of another.” (Fretland v. County of Humboldt (1999)\r\n69 Cal.App.4th 1478, 1487 (Fretland).) \r\nHowever, an employee may bring an action for damages against the employer\r\nwhen “the employee’s injury or death is proximately caused by a willful physical\r\nassault by the employer.” (Lab. Code, § 3602,\r\nsubd. (b)(1).) “[T]he doctrine of respondeat\r\nsuperior cannot be used to extend the section 3602, subdivision (b)(1) exception\r\nto exclusivity to an employer.” (Fretland,\r\nsupra, 69 Cal.App.4th at p. 1486.) Instead,\r\nthe employer is liable for employees’ intentional torts under this section only\r\nthrough the employer’s positive misconduct, such as when the employer ratifies the\r\nconduct and becomes a joint participant. \r\n(Iverson v. Atlas Pacific Engineering (1983) 143 Cal.App.3d 219, 227-228.)

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Defendant\r\ncontends there was no ratification of Torres’s conduct on August 29, 2019 because\r\nit suspended Torres the next day pending further investigation. (Motion at p. 19; UMF 24.) Following an investigation, it terminated Torres’s\r\nemployment. (UMF 38.) Defendant has met its initial burden of showing\r\nthat it did not ratify Torres’s conduct.

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Plaintiff\r\nargues that there are triable facts as to whether Defendants’ managers ratified\r\nthe “ongoing sexual battery and other assaults” by not taking action to stop them. (Opposition at p. 13.) But Plaintiff’s testimony that he reported some\r\nincidents of harassment is insufficient to prove ratification of assault and battery. (Fretland, supra, 69 Cal.App.4th at p.\r\n1491.)

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Plaintiff\r\nalso argues that Defendant can be liable for IIED caused by a non-supervisory\r\nco-worker, even without ratification, when a protected class is implicated and misconduct\r\nexceeds the normal risks of the employment relationship. (Opposition at p. 13.) Plaintiff cites Maynard v. City of San Jose\r\n(9th Cir. 1994) 37 F.3d 1396, holding that the Workers’ Compensation Act did not\r\npreempt claims against a supervisor, a manager, and a director for emotion distress\r\nbased on racial retaliation because they implicated fundamental public policy considerations\r\nunder Government Code section 12940, subdivision (f) and Labor Code section\r\n1102.5. (Id. at 1405; see id.\r\nat p. 1399.) But here, Plaintiff’s claims\r\nare based on the actions of a co-employee, not a supervisor, manager or\r\ndirector of Defendant.

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Plaintiff\r\ncites Livitsanos v. Superior Court (1992) 2 Cal.4th 744, where the plaintiff\r\nargued that his emotional distress claims against the owner of the employer exceeded\r\nthe normal risks of the employment relationship. (Id. at pp. 747-748, 756.) That case did not consider the situation here,\r\ninvolving a non-owner and non-supervisor employee causing the emotional\r\ndistress.

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In\r\nFretland, the plaintiff alleged that his employer harassed and discriminated\r\nagainst him due to his medical problems. \r\n(Fretland, supra, 69 Cal.App.4th at p. 1482.) The court found that the plaintiff’s emotional\r\ndistress claims against his employer were not barred by the Workers’ Compensation\r\nAct, as “work-related injury discrimination is not a normal risk of the compensation\r\nbargain.” (Id. at p. 1492.) This too differs from the situation here, where\r\nPlaintiff alleges Torres, not Defendant, engaged in conduct that caused the\r\nemotional distress.

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In\r\nsum, Plaintiff has not shown a triable issue of fact regarding whether\r\nDefendant ratified Torres’s conduct. Accordingly,\r\nsummary adjudication is granted on the fifth through eighth causes of action.

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E. Punitive Damages

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Finally,\r\nDefendant moves for summary adjudication on the issue of punitive damages. A corporate employer is liable for punitive damages\r\nbased on the acts of an employee only when it (1) had advance knowledge of the unfitness\r\nof the employee and employed him or her with a conscious disregard of the rights\r\nor safety of others, or (2) authorized or ratified the wrongful conduct for which\r\nthe damages are awarded or was personally guilty of oppression, fraud, or malice. (Civ. Code, § 3294, subd. (b).) For a corporate employer, the advance knowledge\r\nand conscious disregard, authorization, ratification or act of oppression, fraud,\r\nor malice must be on the part of an officer, director, or managing agent of the\r\ncorporation. (Ibid.)

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Defendant\r\nprovided evidence that Jimenez, who made the decision to fire Plaintiff, was not\r\na managing agent. (UMF 38, 64.) However, Defendant provides no evidence regarding\r\nits officers, directors, or managing agents with respect to Plaintiff’s claims for\r\nharassment and failure to prevent harassment. \r\nIndeed, Plaintiff submitted evidence creating a triable fact regarding manager\r\nRamirez’s knowledge – and Defendant’s imputed knowledge – of Torres’s harassment.

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Defendant\r\nalso argues that Plaintiff does not have evidence of Defendant’s oppression, fraud,\r\nor malice. (Motion at p. 20.) But “a defendant moving for summary judgment [must]\r\npresent evidence, and not simply point out that the plaintiff does not possess,\r\nand cannot reasonably obtain, needed evidence.” \r\n(Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854, footnote\r\nomitted.) Defendant must therefore “present\r\nevidence that the plaintiff does not possess, and cannot reasonably obtain, needed\r\nevidence—as through admissions by the plaintiff following extensive discovery to\r\nthe effect that he has discovered nothing.” \r\n(Id. at p. 855.) Defendant\r\nhas not done so.

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Accordingly,\r\nsummary adjudication of this issue is denied.

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CONCLUSION

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The\r\nmotion for summary adjudication is GRANTED as to the second, third, and fifth through\r\ntenth causes of action, and DENIED as to the first and fourth causes of action and\r\npunitive damages.

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Moving\r\nparty to give notice.

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Parties\r\nwho intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org\r\nindicating intention to submit. Parties intending\r\nto appear are STRONGLY encouraged to appear remotely.

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Case Number: 20STCV13066    Hearing Date: March 18, 2021    Dept: 48

[TENTATIVE] ORDER RE MOTION TO COMPEL

On April 2, 2020, Plaintiff Hector Carreon filed this wrongful termination action against Defendant U.S. Foodservice, Inc. and Jesus Torres alleging Torres sexually assaulted him at work on August 29, 2019 and then U.S. Foodservice wrongfully terminated his employment. Plaintiff claims that the wrongful conduct caused him “physical, mental and emotional injuries and distress, pain and suffering, lost wages and benefits and health care expenses.” (See, e.g., Complaint ¶ 10.) Plaintiff also alleged a cause of action for intentional infliction of emotional distress, claiming “severe emotional suffering and distress, including but not limited to severe depression, anxiety, insomnia, fear of the future, embarrassment/humiliation, loss of self-esteem, loss of appetite, weight loss and related symptoms of severe emotional distress.” (Complaint ¶ 57.)

Defendant US Foodservice subpoenaed Plaintiff’s medical provider Louisiana Wermer for his medical records from August 28, 2019 to the present. Wermer objected based on the psychotherapist-patient privilege. Plaintiff did not object or file a motion to quash the subpoena. Defendant filed this motion to compel.

Defendant argues Plaintiff put his health and mental condition at issue in the complaint. When a plaintiff puts his health and physical condition at issue, the privacy and privileges that normally attach to such sensitive information are “substantially lowered by the very nature of the action.” (Heller v. Norcal Mutual Ins. Co. (1994) 8 Cal.4th 30, 43; see also Vinson v. Superior Court (1987) 43 Cal.3d 833, 839) The Court must “balance the public need against the weight of the privacy right” and only serious invasions of privacy will bar discovery. (Crab Addison, Inc. v. Superior Court (2008) 169 Cal.App.4th 958, 966.) There is not an egregious invasion of privacy every time there is a request for private information, and courts must “place the burden on the party asserting a privacy interest to establish its extent and seriousness of the prospective invasion.” (Williams v. Superior Court (2017) 3 Cal.5th 531, 557.)

However, “although in seeking recovery for physical and mental injuries plaintiffs have unquestionably waived their physician-patient . . . privileges as to all information concerning the medical conditions which they have put in issue, past cases make clear that such waiver extends only to information relating to the medical conditions in question, and does not automatically open all of a plaintiff’s past medical history to scrutiny.” (Britt v. Superior Court (1978) 20 Cal.3d 844, 849.) The burden is on the party seeking the constitutionally protected information to establish direct relevance. (Davis v. Superior Court (1992) 7 Cal.App.4th 1008, 1017.)

Here, Plaintiff clearly put his mental and physical condition at issue. Wermer argues the requests in the subpoena are over broad by asking for all of Plaintiff’s medical records and bills.

The subpoena asks for all documents pertaining to Plaintiff’s treatment or consultation and bills from August 28, 2019 to the present. Thus the time is limited to the date before the alleged incident and thereafter. It appears that Plaintiff only saw Wermer as a therapist, not for medical treatment, because Wermer objected based on the psychotherapist-patient privilege. If that is correct, then the responsive documents in Wermer’s possession would not contain irrelevant medical records. Therefore, the subpoena is not overbroad.

The motion to compel is GRANTED. Within 20 days of the date of this order, Wermer is to produce responsive documents relating to Plaintiff’s treatment or consultation for “severe emotional suffering and distress, including but not limited to severe depression, anxiety, insomnia, fear of the future, embarrassment/ humiliation, loss of self-esteem, loss of appetite, weight loss and related symptoms of severe emotional distress.”

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. Parties intending to appear are STRONGLY encouraged to appear remotely.

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