Tentative Rulings

Case Number: BC672450    Hearing Date: December 09, 2020    Dept: 37

HEARING DATE: December 9, 2020

CASE NUMBER: BC672450

CASE NAME: Joe J. Serrano v. Stater Brothers Markets, et al.

MOVING PARTIES: Defendants, Stater Brothers Markets and Catherine Campos

OPPOSING PARTY: Plaintiff, Joe J. Serrano

TRIAL DATE: None

PROOF OF SERVICE: OK

MOTION: Defendants’ Motion for Attorney’s Fees

OPPOSITION: None as of December 7, 2020

REPLY: No opposition filed.

TENTATIVE: Defendants’ motion for attorney’s fees is denied. Defendants are to give notice.

Background 

This employment action arises from allegations that Defendants Stater Bros. Markets (“Stater Bros.”) and Alicia Campos (“Campos”) (collectively “Defendants”) discriminated against Plaintiff Joe J. Serrano (“Plaintiff”) because of his disabilities and religion and retaliation against him. In the operative Third¹ Amended Complaint (“TAC”), Plaintiff asserts causes of action against Defendants for: (1) disability discrimination under Fair Employment and Housing Act (“FEHA”); (2) discrimination based on religion under FEHA; (3) harassment based on medical condition under FEHA; (4) harassment based on religion under FEHA; (5) retaliation; (6) failure to prevent discrimination, harassment, and retaliation under FEHA; (7 but identified in the TAC as 8) declaratory judgment; and (8 but identified in the TAC as 9) intentional infliction of emotional distress. The Court notes that the filed TAC is missing page 17, which seems likely to contain the seventh cause of action, which based on previous pleadings, is likely failure to prevent discrimination, harassment, and retaliation in violation of Government Code section 12940, subdivision (k).

On December 13, 2019, Defendants’ motion for summary judgment as to the TAC was granted in its entirety. On January 6, 2020, judgment was entered in favor of Defendants.

On March 25, 2020, Defendants filed the instant motion for attorney’s fees. On April 20, 2020, Plaintiff substituted out his counsel and became self-represented.

Defendants’ motion for attorney’s fees now comes on for hearing. The motion is unopposed.

Discussion

The court may award attorney fees in civil actions alleging violation of the Fair Housing and Employment Act (“FEHA”) in its discretion, pursuant to Government Code section 12965. Pursuant to Government Code section 12965, subdivision (b), the court “in its discretion, may award to the prevailing party…reasonable attorney’s fees and costs” except that “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.” (Gov. Code § 12965, subd. (b).) A plaintiff’s action is not frivolous for purposes of this section solely because Plaintiff’s FEHA claims failed. (Baker v. Mulholland Security & Patrol, Inc. (2012) 204 Cal.App.4th 776, 784 (Baker).) Although there is no specific standard for determining whether a Plaintiff’s action is frivolous, California courts have found it appropriate to award attorney fees under Government Code section 12965, subdivision (b) in the following example circumstances: (1) an employee lies about being subject to discrimination, (2) an employee has signed a release of all claims, including FEHA claims, (3) “there was absolutely no evidence to support the employee’s claims of discrimination.” [internal citations omitted] (Leek v. Cooper (2011) 194 Cal.App.4th 399, 421.)

Defendants contend that they are entitled to attorney fees because they are the prevailing party because of the court’s December 13, 2019 ruling on motion for summary judgment. Additionally, Defendants contend that they are entitled to attorney fees because Plaintiff’s action was frivolous within the meaning of Government Code section 12965, subdivision (b). (Motion, 8-9.) Defendants contend they informed Plaintiff that his claims had no merit. Defendants contend that Plaintiff’s deposition testimony “clearly demonstrated that he had ‘no facts’ regarding any of the causes of action listed against Defendant Campos and undermined his other claims, as Plaintiff allegedly testified on ‘multiple occasions’ that he was accommodated.” (Motion, 8; Declaration of Brendan W. Brandt (“Brandt”), ¶ 11.) Additionally, Defendants contend that “Plaintiff’s refusal to dismiss the action” was itself “unreasonable, frivolous and vexatious.” (Motion, 9.)

Plaintiff did not file an opposition to the motion and does not challenge Defendants’ claims. This motion was filed approximately one month before Plaintiff substituted for his counsel and became self-represented, but he is still responsible for filing any opposition.

The court finds that Plaintiff’s action was not frivolous for purposes of Government Code section 12965, subdivision (b). Based on the guidance from Baker, a Plaintiff’s action is not frivolous solely because it failed. Although Defendants argue that Plaintiff’s action was frivolous because of his deposition testimony, it was not so devoid of any legal and factual basis for his claims that he could not have reasonably brought the action. While he was unable to establish disputed issues of material fact to oppose summary judgment, he was not pursuing the action for other than a conscientiously held belief that he had grounds for relief. For these reasons, Defendants have failed to make a sufficient showing that they are entitled to attorney’s fees under Government Code section 12965, subdivision (b).

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

Case Number: BC672450    Hearing Date: December 13, 2019    Dept: 37

HEARING DATE: December 13, 2019

CASE NUMBER: BC672450

CASE NAME: Joe J. Serrano v. Stater Bros. Markets, et al.

MOVING PARTY: Defendants Stater Bros. Markets and Alicia Campos

OPPOSING PARTY: Plaintiff Joe J. Serrano

TRIAL DATE: February 4, 2020

PROOF OF SERVICE: OK by personal service on August 8, 2019.

PROCEEDING: Summary judgment or, in the alternative, summary adjudication on Plaintiff’s operative Third Amended Complaint.

OPPOSITION: Timely filed on October 9, 2019.

REPLY: Timely filed November 21, 2019

TENATATIVE: Defendants’ Motion for Summary Judgment and, in the alternative, Summary Adjudication, is GRANTED. Defendants are ordered to give notice and to prepare a proposed judgment.

Background

This employment action arises from allegations that Defendants Stater Bros. Markets (“Stater Bros.”) and Alicia Campos (“Campos”) (collectively “Defendants”) discriminated against Plaintiff Joe J. Serrano (“Plaintiff”) because of his disabilities and religion and retaliation against him. In the operative Third[1] Amended Complaint (“TAC”), Plaintiff asserts causes of action against Defendants for: (1) disability discrimination under Fair Employment and Housing Act (“FEHA”); (2) discrimination based on religion under FEHA; (3) harassment based on medical condition under FEHA; (4) harassment based on religion under FEHA; (5) retaliation; (6) failure to prevent discrimination, harassment, and retaliation under FEHA; (7 but identified in the TAC as 8) declaratory judgment; and (8 but identified in the TAC as 9) intentional infliction of emotional distress. The Court notes that the filed TAC is missing page 17, which seems likely to contain the seventh cause of action, which based on previous pleadings, is likely failure to prevent discrimination, harassment, and retaliation in violation of Government Code section 12940, subdivision (k). However, the TAC filed independently of the motion and the motion papers do not address this missing seventh cause of action. Indeed, the filed TAC as Exhibit A to Defendants’ motion papers also miss this seventh cause of action. Therefore, as a preliminary matter, the Court finds there is no seventh cause of action.

On August 8, 2019, Defendants filed this motion for summary judgment on Plaintiff’s TAC. In this motion, Defendants moves for summary judgment or, in the alternative, summary

adjudication on the following seven issues:

ISSUE NO. 1: Plaintiff’s First Cause of Action for Discrimination based on Physical Disability has no merit as Plaintiff has no evidence that Physical Disability Discrimination played any role in his position change

ISSUE NO. 2: Plaintiff’s Second Cause of Action for Discrimination based on Religious Belief has no merit as Plaintiff has no evidence that Religious Belief Discrimination played any role in his position change

ISSUE NO. 3: Plaintiff’s Third and Fourth Causes of Action for Harassment based on medical condition and religious belief has no merit as the alleged conduct was neither severe or pervasive and/or defendants knew or should have known of the alleged conduct and failed to take immediate and appropriate corrective action

ISSUE NO. 4: Plaintiff’s Fifth Cause of Action for Retaliation has no merit as Plaintiff has no evidence to establish a causal link between any protected activity and Defendant's [sic] action

ISSUE NO. 5: Plaintiff’s Third, Fourth and Sixth Causes of Action are barred by the Doctrine of Avoidable Consequences

ISSUE NO. 6: Defendants are entitled to judgment as a matter of law on Plaintiff’s Seventh and Eighth Causes of Action

ISSUE NO. 7: Plaintiff’s Ninth Cause of Action is without merit as Plaintiff fails to show

Defendants' conduct was outrageous

Plaintiff opposes. The court previously held a hearing on Defendants’ Motion for Summary Judgment on October 23, 2019, at which time the court continued the hearing until November 26, 2019 so that Plaintiff might correct certain procedural defects. Plaintiff has now corrected these procedural defects by filing a Separate Statement on November 12, 2019. Further, Defendants filed a Reply on November 21, 2019. The court will consider both, below, in making its final ruling.

Summary of Pleadings

Plaintiff alleges as follows.

Plaintiff formerly was a grocery clerk and is currently working as a bookkeeper for Stater Bros. (TAC ¶¶ 7-8, 20.) Plaintiff alleges that he faced religious and disability discrimination.

After taking a medical leave for alcoholism, other employees ridiculed Plaintiff when he returned to work, and Plaintiff reported these issues but they persisted. (Id. ¶¶ 11-12, 15.[2]) Plaintiff injured himself at work and filed a worker’s compensation claim, though he later returned to work. (Id. ¶ 16.) Plaintiff was a grocery clerk at the time he suffered the injury. (Id. ¶ 19.)

After his injury, Stater Bros. reduced Plaintiff’s hours compared to comparable employees. (Id. ¶ 17.) Stater Bros. has denied Plaintiff’s vacation requests and changed his schedule to keep him from working on holidays, which afforded him holiday pay. (Id. ¶ 18.) Based on these changes, Plaintiff’s wages have decreased significantly. (Id. ¶ 19.)

Plaintiff also alleges that other employees discriminated against him because he is a devout Catholic, including by ridiculing him, telling him he cannot discuss Catholic issues at a corporate potluck, and calling him derogatory nicknames including “Father Sarducci.” (Id. ¶¶ 21-24.) Plaintiff further alleges that Stater Bros. discriminated against him by denying his requests to have one specific Saturday a month so he could attend a bible study scheduled that day. (Id. ¶ 25.)

Plaintiff also alleges wage and hour violations, though he does not assert a specific cause of action for these violations. (Id. ¶ 26.)

Finally, Plaintiff also alleges that Campos, a Store Manager, required him to take a Korean coin and put it in a workplace cubby of a colleague who is Japanese-American. (Id. ¶ 27.) Plaintiff did not want to do so because he felt offended. (Ibid.) Plaintiff complained about this incident and faced retaliation, including added and shifted duties. (Id. ¶ 28.)

 

Request for Judicial Notice

Defendants filed a request for judicial notice of the operative complaint pursuant to Evidence Code sections 452, subdivision (d)(1).

“Judicial notice may not be taken of any matter unless authorized or required by law.” (Evid. Code, § 450.) Evidence Code section 452, subdivision (h), authorizes the court to take judicial notice of facts “that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.”

Regarding the documents for which the Court grants judicial notice, the court is not mandated to accept the truth of its their contents or the parties’ interpretation of those contents. (Joslin v. H.A.S. Ins. Brokerage (1986) 184 Cal.App.3d 369, 374.)

As a preliminary matter, the Court notes that Defendants did not annex the document of which they request judicial notice to their request. Nevertheless, the document is filed with their evidence and is also a filed pleading.

The unopposed request for judicial notice is GRANTED. The existence and legal effect of the operative complaint is judicially noticeable (Evidence Code § 452 (d)(1).)

Evidentiary Objections

Plaintiff objects to Defendants’ motion, specifically, the declarations and some of the evidence as follows: (1) objection to Brandt Declaration in its entirety; (2) objection to Exhibits N and P (annexed to the Brandt Declaration); (3) objection to Exhibits B to M and O (annexed to the Salse Declaration); and (4) objection to Salse Declaration Paragraphs 2, 5-13.

The Court overrules all of Plaintiff’s objections as explained below.

Objection to Brandt Declaration

First, Plaintiff objects to the Brandt Declaration in its entirety because (1) Brandt did not execute it under penalty of perjury and (2) hearsay. The Brandt Declaration is notable for its annexed exhibits, which are Plaintiff’s response to a demand for production of documents (Exhibit N) and excerpts of Plaintiff’s deposition testimony (Exhibit P).

On October 23, 2019, the court ruled that Brandt would have until October 29, 2019 to file an amended declaration changed only to indicate that it was sworn under penalty of perjury. On October 24, 2019, Defendants filed an amended Brandt Declaration indicated that it was made under penalty of perjury. (see Amended Declaration of Brendan W. Brandt in Support of Motion.) Accordingly, the Brandt Declaration is now proper.

Further, the court previously overruled Plaintiff’s objection to the Brandt declaration as to hearsay because the Brandt Declaration annexes discovery responses and Plaintiff’s deposition testimony, which are party admissions.

C. Objection to Exhibits N and P (annexed to the Brandt Declaration)

Plaintiff makes similar arguments to the specific exhibits annexed to the Brandt Declaration, objecting based on authentication grounds and failure to satisfy the Secondary Evidence Rule.

The Court adopts the reasoning set forth above. Additionally, the Court notes that Plaintiff’s deposition testimony (Exhibit P) contains a certificate by the stenographer and a letter indicating that Plaintiff reviewed and signed the deposition transcript with no changes (though the signature was not provided in the evidence). Further, Plaintiff does not identify any specific content of the exhibits that appear inauthentic.

Accordingly, the Court overrules this evidentiary objection.

D. Objection to Exhibits B to M and O (annexed to the Salse Declaration)

Plaintiff objects to specific exhibits annexed to the Salse Declaration, objecting based on hearsay grounds and failure to satisfy the Secondary Evidence Rule. Specifically, Plaintiff argues that Salse does not provide facts to show that the exhibits are admissible hearsay under the business records exception.

The hearsay rule and its exceptions apply to the contents of declarations on a motion for summary judgment. For a declaration to meet summary judgment standards, the declarant “must show the declarant's personal knowledge and competency to testify, state facts and not just conclusions, and not include inadmissible hearsay or opinion.” (Bozzi v. Nordstrom, Inc. (2010) 186 Cal.App.4th 755, 761.)

Evidence Code section 1271 provides:

Evidence of a writing made as a record of an act, condition, or event is not made inadmissible by the hearsay rule when offered to prove the act or event if:

1. The writing was made in the regular course of business;

2. The writing was made at or near the time of the act, condition, or event;

3. The custodian or other qualified witness testifies to its identity and the mode of its preparation; and

4. The sources of information and method and time of preparation were such as to indicate its trustworthiness.

Here, Defendants submit the Declaration of Jennifer Salse, who is the EEO Manager for Stater Bros. (Salse Decl. ¶ 1.) Salse has worked for more than 10 years doing human resources and labor relations for Stater Bros. (Ibid.) In her declaration, Salse declares that she “[has] personal knowledge of the matters stated herein and if called as a witness could testify competently thereto.” (Ibid.) In regard to asserting a foundation for each exhibit, Salse declares the same response at the end of each paragraph: “The correspondence was prepared in the regular course of business, at or near the time of the event. I am a custodian of this document and can attest to its identity. The source of information and method and time of preparation are such to indicate its trustworthiness.” (See id. ¶¶ 2-13.)

This statement is the same response for each exhibit. Nevertheless, Salse was in position in the human resources, labor relations, and the EEO Department to lay the appropriate foundation that the documents concerning Stater Bros. employment policies and notices are admissible as admissible either as non-hearsay, admissions of a party opponent or as the business records exception. The declaration is sufficient.

Accordingly, the Court overrules this evidentiary objection.

E. Objection to Salse Declaration Paragraphs 2, 5-13.

Plaintiff makes similar objections to specific portions of the Salse Declaration, objecting based on lack of foundation and competence.

The Court adopts the reasoning set forth above. Additionally, the Court notes that Plaintiff’s objections are procedurally defective, because they do not “[q]uote or set forth the objectionable statement or material.” (Cal. Rules of Court, rule 3.1354(b)(3).) Plaintiff merely refers to the declaration’s paragraphs in full.

Accordingly, the Court overrules this evidentiary objection.

Legal Standard

The purpose of a motion for summary judgment or summary adjudication “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 (Aguilar).) “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge 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.)

“In ruling on the motion, the court must consider all of the evidence and all of the inferences reasonably drawn therefrom [citation] and must view such evidence [citations] and such inferences [citations] in the light most favorable to the opposing party.” (Aguilar, supra, at pp. 844-845, quotation marks omitted.)

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.)

A defendant moving for summary judgment or summary adjudication “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 . . . cannot be established, or that there is a complete defense to the cause of action.” (Code Civ. Proc., § 437c, subd. (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 the cause of action or a defense thereto.” (Ibid.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.)

Summary judgment, “although a very useful tool in litigation, is also a drastic remedy. Because of this, it is important that all of the procedural requirements for the granting of such a motion be satisfied before the trial court grants the remedy.” (Magana Cathcart McCarthy v. CB Richard Ellis, Inc. (2009) 174 Cal.App.4th 106, 117.) 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 or where the opposition is weak. (Leyva v. Superior Court (1985) 164 Cal.App.3d 462, 475.)

In analyzing an employee's claim for unlawful discrimination and unlawful retaliation claims, 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. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354 (Guz); Wills v. Superior Court (2011) 195 Cal.App.4th 143, 159 (Wills).) The burdens and order of proof therefore shift under the McDonnell Douglas test when an employer defendant seeks summary judgment. (Wills, supra, 195 Cal.App.4th at p. 160.) An employer defendant may meet its initial burden on summary judgment and require the employee plaintiff to present evidence establishing a triable issue of material fact, by presenting evidence that either negates an element of the employee's prima facie case or establishes a legitimate nondiscriminatory reason for taking the adverse employment action against the employee. (Swanson v. Morongo Unified School Dist. (2014) 232 Cal.Ap.4th 954, 964.) “[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.” (Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1004-1005.)

Statement of Undisputed Facts

Plaintiff filed a Separate Statement of Disputed Material Facts on November 12, 2019, which the court will now consider in making its ruling. However, Plaintiff does not dispute many facts by his Separate Statement and as such, the facts in Defendants’ Separate Statement of Undisputed Material Facts (“DSS”) remain largely undisputed.

The facts are in pertinent part are as follows.

Plaintiff worked for Stater Bros. since 2008, though he has been on medical leave since November 2018. (DSS ¶¶ 1-3.) Stater Bros. has policies in place to prohibit discriminatory and harassing conduct that Plaintiff was aware of and Plaintiff had many different people Plaintiff could report any discrimination or harassment to. (Id. ¶¶ 4-5, 19, 31-32, 53-55.) Plaintiff, according to his Separate Statement, does not dispute these facts but contends that they are “not proof that the policies were followed.” (Separate Statement in Support of Opposition (“PSS”), ¶¶ 4, 19, 31, 54-55.)

In 2014, Plaintiff injured his back on the job. (DSS, ¶ 6.) Plaintiff requested work restrictions and Stater Bros. provided alternative positions to accommodate those restrictions. (Id. ¶¶ 7-12.) Plaintiff was offered and accepted a different job as a bookkeeper as his accommodation. (Id. ¶¶ 13-14.)

Plaintiff complained about some religious discrimination by other employees, and following the complaint and investigation, this discrimination stopped. (Id. ¶¶ 20-25.[3]) Plaintiff’s complaint was made on February 2, 2017 in the form of a written complaint to Stater Brothers after being called Father Sarducci for the second time. (Id. ¶ 22.) Defendants that State Brothers sent him a letter on February 14, 2017, indicating that his complaint was investigated and that they were unable to find evidence to conclude that unlawful conduct had occurred. (Id. ¶ 24.)

Defendants further contend that Plaintiff made no further complaints other than the written complaint dated February 2, 2017. (DSS, ¶ 25; Deposition of Joe Serrano (“Serrano Depo.”), 57:12-58:5.) Plaintiff disputes this fact and contends that the portion of his deposition Defendants cite to do not stand for this proposition. (PSS, ¶ 25.) A review of Plaintiff’s deposition indicates that Plaintiff testified as follows:

Q: “ . . . look like Father Sarducci. You made a complaint. Then you got Exhibit 10, correct?”

A: “Yes.”

Q: “And it says “if you feel that you are having any problems as a result of this complaint, please contact me immediately,” correct?

A: “Yes.”

Q: “And Exhibit 10 is a letter dated February 14, 2017, bates-stamped Plaintiff 14. Did you ever make any further complaint?

A: “No.”

(Evidence in Support of Motion, Exhibit P.)

Thereafter, at Plaintiff’s request, Stater Bros. offered Plaintiff the job as a bookkeeper to accommodate his disability, and this accommodation required him to work Saturdays. (DSS ¶ 26.) Plaintiff took a bible course on Saturdays for his own personal benefit and not an essential element of his religion. (Id. ¶¶ 27-28.) Plaintiff does not dispute this fact but contends that it is irrelevant because religion encompasses all aspects of religious belief. ( PSS, ¶ 28.) Plaintiff was only asked to not speak to coworker Heather Clark about religion one time while she was on her break and he never reported that incident. (DSS ¶¶ 29-30.)

On April 15, 2016, Plaintiff wrote out a note stating: “Alicia [Campos] yelled at me. Money counter not working. CashPro not working. 30 minutes to fix CashPro.” (Id. ¶ 38.)

Plaintiff has received reprimands for work issues, including issues of miscalculations with the accounting. (Id. ¶¶ 41-43.) Plaintiff does not dispute that he received these reprimands. (PSS, ¶¶ 41-43.)

Discussion

Defendants seek summary judgment on all of Plaintiff’s claims.

As a preliminary matter, the Court notes that Plaintiff’s opposition is primarily based on that Defendants submit inadmissible evidence and thus do not set forth undisputed facts to prevail on their arguments. However, as set forth above, Defendants’ evidence is admissible and the facts in Defendants’ Separate Statement of Undisputed Material Facts are largely undisputed. Although Plaintiff has now submitted a Separate Statement of Disputed Material Facts, as discussed above, Plaintiff does not submit admissible evidence to dispute any material facts necessary to the court’s ruling on the instant motion.

Additionally, the Court notes that Plaintiff’s opposition generally rests on the allegations in his operative, unverified TAC. (See Opposition 4:14-26.) This reliance is inappropriate. (Roman v. BRE Properties, Inc. (2015) 237 Cal.App.4th 1040, 1054 [“Citation to their own pleading is meaningless: It is fundamental that to defeat summary judgment a plaintiff must show ‘specific facts’ and cannot rely on allegations of the complaint.”].)

Accordingly, to the extent Defendants meet their initial burden, the Court grants summary judgment.

A. ISSUE NO. 1: Plaintiff’s First Cause of Action for Discrimination based on Physical Disability has no merit as Plaintiff has no evidence that Physical Disability Discrimination played any role in his position change

To establish a prima facie case for discrimination under 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, supra, at p. 355.) An adverse employment action is generally an action that materially affects the terms, conditions, or privileges of employment. (See Featherstone v. Southern California Permanente Medical Group (2017) 10 Cal.App.5th 1150, 1161.) This is not limited to ultimate employment actions like termination or demotion, but also “the entire spectrum of employment actions that are reasonably likely to adversely and materially affect an employee’s job performance or opportunity for advancement in his or her career.” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1053-1054 (Yanowitz).)

Government Code section 12940(a) prohibits employers from discharging an employee because of a physical disability. “In order to prevail on a discriminatory discharge claim under section 12940(a), an employee bears the burden of showing (1) that he or she was discharged because of a disability, and (2) that he or she could perform the essential functions of the job with or without accommodation . . . .” (Nadaf-Rahrov v. Neiman Marcus Group, Inc. (2008) 166 Cal.App.4th 952, 962.)

Here, the undisputed facts show that Plaintiff requested an accommodation following injury to his spine and that Stater Brothers engaged in the interactive process by offering Plaintiff an accommodation through a title change to bookkeeper. (DSS, ¶¶ 6-9; Serrano Depo, 70:3-11, 70:14-71:11, 71:22-73:9; Evidence in Support of Motion, Exhibits I, J, K.) Further, the undisputed facts show that Plaintiff was not able to perform the essential job duties of the positions offered as accommodation. (DSS, ¶ 10; Serrano Depo, 78:5-25; Evidence in Support of Motion, Exhibit K.) Moreover, the undisputed facts show that Stater Brothers received further restriction as to Plaintiff and that it responded by again engaging in the interactive process, which resulted in Stater Brothers offering and Plaintiff accepting his current position as bookkeeper. (DSS, ¶¶11-14; Salse Decl., ¶¶ 8-9; Serrano Depo, 80:18-81:12, 130:5-20, 141:7-16; Evidence in Support of Motion, Exhibit M.)

Accordingly, viewing the evidence submitted in the light most favorable to Plaintiff, Defendants have established that there is no triable issue of material fact as to Plaintiff’s cause of action for discrimination based on physical disability. Here, the undisputed evidence shows that Stater Brothers engaged in the interactive process with Plaintiff in a timely manner after receiving notice of Plaintiff’s restrictions and then of Plaintiff’s further restrictions. Further, Plaintiff acknowledges that an interactive process took place and that he received a title change to bookkeeper as an accommodation for his original injury. Further, there is no evidence that Plaintiff was otherwise was discriminated against, including by Campos, based on his disability.

Accordingly, the Court grants summary adjudication as to this issue.

B. ISSUE NO. 2: Plaintiff’s Second Cause of Action for Discrimination based on Religious Belief has no merit as Plaintiff has no evidence that Religious Belief Discrimination played any role in his position change

“The elements of a religious creed discrimination claim are that: the plaintiff had a bona fide religious belief; the employer was aware of that belief; and the belief conflicted with an employment requirement.” (Friedman v. Southern Cal. Permanente Medical Group (2002) 102 Cal.App.4th 39, 45.)

“Religious creed” and “religious belief or observance” are defined by statute includes, but is not limited to, “observance of a Sabbath or other religious holy day or days, and reasonable time necessary for travel prior and subsequent to a religious observance.” (Government Code § 12940 (l).) Further, according to the California Fair Employment and Housing Commission’s guidance, “religious creed” means “any traditionally recognized religion as well as beliefs, observations, or practices which an individual sincerely holds and which occupy in his or her life a place of importance parallel to that of traditionally recognized religions.” (California Code of Regulations, title 2, § 7293.1.)

As discussed above, the undisputed facts show that the position change in Plaintiff’s employment was based on an accommodation for his physical disability, not because of religious discrimination. Additionally, the undisputed facts show that Defendants did not discriminate against Plaintiff based on his religious belief in other ways, namely being called “Father Sarducci,” not receiving Saturdays off to go to Bible course and being asked to stop talking about religion with coworker Heather Clark on her break one time.

With regard to being called “Father Sarducci,” the undisputed material facts show that Defendants investigated the incident and did not make an adverse employment action against Plaintiff for making the complaint. (DSS, ¶ 24.) Plaintiff disputes that he did not make any further complaints after February 2, 2017, but Plaintiff’s only evidence in support of this dispute is that the portion of his testimony Defendants cite to does not stand for this proposition. However, as discussed above and contrary to Plaintiff’s assertions, the cited portion of testimony does indicate that Plaintiff admitted to making no further complaints after the February 2, 2017 written complaint.

With regard to Saturdays off, Plaintiff requested this for his own “personal benefit” to take a Bible course. (DSS ¶ 27) Plaintiff does not dispute that attending “Bible course” was not required as part of his faith but asserts that “religion” includes all aspects of religious belief. (PSS, ¶ 28.) However, Plaintiff supports this contention with a citation to inapplicable case law regarding the standard for ruling on separate statements. (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 252 [holding that a separate statement which was defective did not justify granting summary judgment in favor of moving parties.])

Finally, in regard to the incident with colleague Heather Clark, Plaintiff admitted that he did not report the incident to any manager or supervisor at Stater Brothers. (DSS, ¶ 30; Serrano Depo, 177:9-17.) Plaintiff does not dispute this fact on his Separate Statement. Plaintiff does not allege that he was told by anyone else not to speak about his religion. Accordingly, the incident with Heather Clark constitutes, at most, an isolated incident and does not arise to the level of discrimination based on religious creed on the part of Stater Brothers.

Accordingly, viewing the evidence in the light most favorable to Plaintiff, Defendants have established that there is no triable issue of material fact as to whether Defendants engaged in religious creed discrimination. The Court therefore grants summary adjudication as to this issue.

C. ISSUE NO. 3: Plaintiff’s Third and Fourth Causes of Action for Harassment based on medical condition and religious belief has no merit as the alleged conduct was neither severe or pervasive and/or defendants knew or should have known of the alleged conduct and failed to take immediate and appropriate corrective action

The FEHA makes it unlawful for an employer to harass an employee on account of a protected characteristic. (Gov. Code, § 12940, subd. (j)(1).) “[H]arassment consists of conduct outside the scope of necessary job performance, conduct presumably engaged in for personal gratification, because of meanness or bigotry, or for other personal motives. Harassment is not conduct of a type necessary for management of the employer’s business or performance of the supervisory employee’s job.” (Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 63 (Janken).) “[C]ommonly necessary personnel management actions such as hiring and firing, job or project assignments, office or work station assignments, promotion or demotion, performance evaluations, the provision of support, the assignment or non-assignment of supervisory functions, deciding who will and who will not attend meetings, deciding who will be laid off, and the like, do not come within the meaning of harassment. These actions may retrospectively be found discriminatory if based on improper motives, but in that event the remedies provided by the FEHA are those for discrimination, not harassment.” (Id. at pp. 64-65.) “This significant distinction underlies the differential treatment of harassment and discrimination in the FEHA.” (Id. at p. 65.) However, because harassment is generally concerned with the message conveyed to an employee, “in analyzing the sufficiency of evidence in support of a harassment claim, there is no basis for excluding evidence of biased personnel management actions so long as that evidence is relevant to prove the communication of a hostile message.” (Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 708 (Roby).)

Effective January 1, 2019, the California Legislature has expressly declared its intent that FEHA harassment claims are rarely appropriate for disposition on summary judgment and that hostile working environment cases involve issues “not determinable on paper.” (Gov. Code, § 12923, subd. (e).) “A single incident of harassing conduct is sufficient to create a triable issue regarding the existence of a hostile work environment if the harassing conduct has unreasonably interfered with the plaintiff’s work performance or created an intimidating, hostile, or offensive working environment.” (Id., § 12923, subd. (b).) “The existence of a hostile work environment depends upon the totality of the circumstances and a discriminatory remark, even if not made directly in the context of an employment decision or uttered by a non-decisionmaker, may be relevant, circumstantial evidence of discrimination.” (Id., § 12923, subd. (c).)

Here, Plaintiff alleges that he was subject to harassment on the basis of his religious belief and on the basis of his physical disability. Specifically, the TAC alleges that Defendants’ conduct, enumerated above, (being called “Father Sarducci,” denied Saturday off for Bible class, allegedly being yelled at and allegedly being told not to discuss religion) together constitute harassing conduct based on Plaintiff’s religion and disability and in violation of the FEHA. (TAC, ¶¶ 58-62.)

However, the undisputed facts show that Plaintiff complained of being called “Father Sarducci” one time with regard to being called “Father Sarducci” on two occasions. (DSS, ¶¶ 21-24.) Defendants investigated this complaint and found insufficient evidence of unlawful conduct in regard to harassment. (DSS, ¶ 24; Exhibits in Support of Motion, Exhibit G.) Thereafter, Plaintiff did not submit any additional complaints regarding being called “Father Sarducci,” nor was he called “Father Sarducci” since he submitted the complaint. (DSS, ¶¶ 35, 37.)

With regard to being yelled at by Campos the undisputed material facts demonstrate that Plaintiff wrote a note documenting the incident but does not recall turning it into anyone at Stater Brothers. (DSS, ¶ 38.) Further, the note, as described above, merely documents that Campos yelled at him regarding “Money counter,” and/or about “CashPro”, not about his religion or physical disability. (Id.) Finally, Plaintiff alleged that Heather Clark once told him not to speak about his religion, but also that he did not report this incident to anyone at Stater Brothers. (DSS, ¶¶ 39-40.)

Although the California Legislature now intends for a single incident of harassing conduct to be sufficient to establish a FEHA harassment claim, here, viewing the evidence in the light most favorable to Plaintiff, the court finds that Defendant has demonstrated the absence of a triable issue as to Defendants’ harassment towards Plaintiff on the basis of his religion or disability. Plaintiff does not allege, nor does he submit evidence in his opposition, that he was subject to a hostile work environment because of his religion or disability. Although it is undisputed that Plaintiff was called “Father Sarducci,” was told not to speak about his religion by Clark and wrote a note about Campos yelling at him, Plaintiff has submitted no evidence to raise a triable issue as to whether he felt harassed due to these comments. Instead, Plaintiff relies only on the allegations in his TAC that these comments, taken together, constitute harassing conduct under the FEHA. This is insufficient to raise a triable issue for purposes of summary judgment.

Accordingly, the Court grants summary adjudication on this issue.

D. ISSUE NO. 4: Plaintiff’s Fifth Cause of Action for Retaliation has no merit as Plaintiff has no evidence to establish a causal link between any protected activity and Defendant's [sic] action

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, supra, at p. 1042.) A retaliation claim can be brought by an employee who has complained of conduct reasonably believed to be discriminatory. (Id. at 1043.)

Here, the undisputed facts show that Plaintiff does not make a prima facie case of a causal link between any protected activity and Defendants’ actions. Even if it did, the undisputed facts show that Defendants had legitimate business reasons in offering Plaintiff an accommodation by offering Plaintiff a title change to bookkeeper after he requested one and legitimate business reasons for issuing Plaintiff warnings and reprimands based on his errors in accounting, which is important to his role as a bookkeeper.

Accordingly, the Court grants summary adjudication as to this issue.

E. ISSUE NO. 5: Plaintiff’s Third, Fourth and Sixth Causes of Action are barred by the Doctrine of Avoidable Consequences

As a preliminary matter, the Court as set forth above grants summary adjudication as to the third and fourth causes of action. Therefore, this analysis is only relevant as to the sixth cause of action for failure to prevent discrimination, harassment, and retaliation under FEHA.

Government Code section 12940, subdivision (k) provides that it is an unlawful employment practice “[f]or an employer, labor organization, employment agency, apprenticeship training program, or any training program leading to employment, to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring.”

To establish this claim, a plaintiff must establish the defendant’s legal duty of care, breach of duty, legal causation, and damages to the plaintiff. (See Trujillo v. North County Transit District (1998) 63 Cal.App.4th 280, 286-287.)

Defendants argue that the avoidable consequences doctrine bars Plaintiff’s sixth cause of action. (Motion, 20-21.)

“Under the avoidable consequences doctrine as recognized in California, a person injured by another's wrongful conduct will not be compensated for damages that the injured person could have avoided by reasonable effort or expenditure.” (State Dept. of Health Services v. Superior Court (2003) 31 Cal.4th 1026, 1043.) This doctrine applies to FEHA. (Ibid.) This defense allows an “employer to escape liability for those damages, and only those damages, that the employee more likely than not could have prevented with reasonable effort and without undue risk, expense, or humiliation, by taking advantage of the employer's internal complaint procedures appropriately designed to prevent and eliminate sexual harassment.” (Ibid. [the Court notes that the citation is explicitly for sexual harassment].) Further, “an employee’s failure to report harassment to the employer is not a defense on the merits to the employee’s action under the FEHA, but at most it serves to reduce the damages recoverable.” (Id. at p. 1049.)

Here, Plaintiff’s cause of action for failure to prevent discrimination, harassment and retaliation is derivative of Plaintiff’s causes of action for discrimination, harassment and retaliation, respectively. Having found no triable issue of material fact with respect to Plaintiff’s discrimination, harassment and retaliation claims, the court finds that, viewing the evidence in the light most favorable to Plaintiff, Defendant has established the absence of a triable issue of material fact with respect to Plaintiff’s claims regarding failure to prevent discrimination, harassment and retaliation.

Accordingly, the court grants summary adjudication on this issue.

F. ISSUE NO. 6: Defendants are entitled to judgment as a matter of law on Plaintiff’s Seventh and Eighth Causes of Action

With regard to the Plaintiff’s seventh cause of action for declaratory relief, Defendants make inapplicable arguments involving punitive damages. (Motion 22-23.) Therefore, the Court is inclined to deny summary adjudication because Defendants do not make any applicable legal arguments.

However, the Court notes that Plaintiff asserts a declaratory relief claim pursuant to Code of Civil Procedure section 1060 based on the alleged discrimination and harassment. (TAC ¶¶ 102-105.)

Code of Civil Procedure section 1060 provides that a person may bring an action for declaratory relief if he or she “desires a declaration of his or her rights or duties with respect to another, or in respect to, in, over or upon property . . . .”

“To qualify for declaratory relief, [a party] would have to demonstrate its action presented two essential elements: (1) a proper subject of declaratory relief, and (2) an actual controversy involving justiciable questions relating to [the party's] rights or obligations.” (Jolley v. Chase Home Finance, LLC (2013) 213 Cal.App.4th 872, 909, internal citation marks omitted.)

Here, as discussed above and below, the Court finds no triable issue of material fact with regard to Plaintiff’s harassment and failure to prevent harassment causes of action. Accordingly, the court also finds no triable issue of material fact with respect to Plaintiff’s cause of action for declaratory relief on this basis.

Accordingly, the Court grants summary adjudication on this issue.

G. ISSUE NO. 7: Plaintiff’s Ninth Cause of Action is without merit as Plaintiff fails to show Defendants' conduct was outrageous

Defendants argues that Plaintiff’s allegations are not outrageous to state a claim for intentional infliction of emotional distress (“IIED”).

“To state a cause of action for intentional infliction of emotional distress a plaintiff must show: (1) outrageous conduct by the defendant; (2) the defendant's intention of causing or reckless disregard of the probability of causing emotional distress; (3) the plaintiff's suffering severe or extreme emotional distress; and (4) actual and proximate causation of the emotional distress by the defendant's outrageous conduct.” (Yau v. Santa Margarita Ford, Inc. (2014) 229 Cal.App.3th 144.) A defendant’s conduct is “outrageous” when it is so extreme as to exceed all bounds of that usually tolerated in a civilized community. (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050-1051.)

Here, as discussed above, Plaintiff complains of the following instances of conduct for purposes of his IIED claim: (1) being called “Father Sarducci” on two occasion, (2) being told by Clark not to speak about religion, and (3) being yelled at Campos. Further, as discussed above, Stater Brothers responded as follows to each: (1) Stater Brothers investigated the complaint regarding being called “Father Sarducci” and issued a letter on February 14, 2017 finding that it was unsubstantiated, (2) Stater Brothers did not investigate, as Plaintiff does not recall reporting this incident, and (3) Stater Brothers did not investigate, as Plaintiff did not report this incident. Plaintiff does not dispute these facts in support of Defendants’ motion. Accordingly, the undisputed facts show that at most, Plaintiff heard some derogatory non-vulgar comments a few times and that in the instances when Plaintiff reported these comments, Stater Brothers responded with an investigation. These comments do not rise to the level of extreme and outrageous conduct sufficient for a claim for IIED.

Accordingly, the Court grants summary adjudication as to this issue.

Conclusion

Defendants’ Motion for Summary Judgment, and summary adjudication on each issue, is GRANTED. Defendants are ordered to give notice and to prepare a proposed judgment.