On 08/15/2017 JOE J SERRANO filed a Labor - Other Labor lawsuit against STATER BROS MARKETS. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are DAVID S. CUNNINGHAM III and MARC MARMARO. The case status is Pending - Other Pending.
****2450
08/15/2017
Pending - Other Pending
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
DAVID S. CUNNINGHAM III
MARC MARMARO
SERRANO JOE J.
CASTRO ALICIA
STATER BROS MARKETS
DOES 1 THROUGH 50
VARNER BRUCE D.
VARNER & BRANDT LLP
LAW OFFICES OF MAURO FIORE JR.
FIORE MAURO JR.
BRANDT BRENDAN W.
BRANDT BRENDAN WILLIAM
BRANDT BRENDAN WILLIAM ESQ.
8/28/2020: Appellate Order Reinstating Appeal - APPELLATE ORDER REINSTATING APPEAL NOA: 03/30/20 B304783
9/9/2020: Proof of Service by Mail
4/20/2020: Substitution of Attorney
3/3/2020: Appeal - Notice of Appeal/Cross Appeal Filed
3/25/2020: Motion for Attorney Fees
10/9/2019: Memorandum of Points & Authorities - MEMORANDUM OF POINTS & AUTHORITIES IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT OR ADJUDICATION BY DEFENDANTS STATER BROS. MARKETS AND ALICIA CAMPOS
10/9/2019: Objection - OBJECTION PLAINTIFF'S OBJECTIONS TO DEFENDANTS' EVIDENCE
11/21/2019: Reply - REPLY SUPPLEMENTAL REPLY OF DEFENDANT STATER BROS. MARKETS IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT/ADJUDICATION
12/19/2019: Notice of Ruling
1/6/2020: Minute Order - MINUTE ORDER (IN CHAMBERS COURT ORDER)
1/22/2019: Notice of Case Reassignment and Order for Plaintiff to Give Notice
1/8/2018: CASE MANAGEMENT STATEMENT -
1/9/2018: CIVIL DEPOSIT
1/11/2018: Minute Order -
4/2/2018: Minute Order -
5/2/2018: DEFENDANTS' ANSWER TO PLAINTIFF'S THIRD AMENDED COMPLAINT, ERRONEOUSLY FILED AND SERVED AS PLAINTIFF'S FIRST AMENDED COMPLAINT
5/14/2018: CASE MANAGEMENT ORDER
5/24/2018: CIVIL DEPOSIT
Docketat 08:30 AM in Department 37; Hearing on Motion for Attorney Fees - Held
DocketMinute Order ( (Hearing on Motion for Attorney Fees)); Filed by Clerk
DocketAppeal Record Delivered; Filed by Clerk
DocketAppeal - Original Clerk's Transcript 1 Volume Certified (for Notice of Appeal, filed 3/3/20); Filed by Clerk
DocketAppeal - Clerk's Transcript Fee Paid (RESPONDENT PAID $60.73)
DocketAppeal - Notice of Fees Due for Clerk's Transcript on Appeal (3/3/20 B304783); Filed by Clerk
DocketProof of Service by Mail; Filed by Joe J. Serrano (Appellant)
DocketAppeal - Ntc Designating Record of Appeal APP-003/010/103; Filed by Joe J. Serrano (Appellant)
DocketAppellate Order Reinstating Appeal (NOA: 03/30/20 B304783); Filed by Clerk
DocketAppellate Order Dismissing Appeal (NOA:03/03/20 B304783); Filed by Clerk
DocketCase Management Statement; Filed by Defendant/Respondent
DocketProof-Service/Summons
DocketPROOF OF SERVICE SUMMONS
DocketORDER TO SHOW CAUSE HEARING
DocketNOTICE OF CASE MANAGEMENT CONFERENCE
DocketOSC-RE Other (Miscellaneous); Filed by Clerk
DocketNotice of Case Management Conference; Filed by Clerk
DocketSUMMONS
DocketComplaint; Filed by Joe J. Serrano (Plaintiff)
DocketCOMPLAINT FOR DAMAGES: 1) DISCRIMINATION BASED ON PHYSICAL DISABILITY, MEDICAL CONDIIION, AND RELIGION, IN VIOLATION OF CALIFORNIA GOV'T CODE 12940 ET SEQ.; ETC
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. 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. 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.) 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).) 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. 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. 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. 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. 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. 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.) 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.) 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. 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. “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. 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. 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. 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. 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. 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. 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. [1]
Plaintiff has filed three separate pleadings, two of which are labeled the
“First Amended Complaint.” The second “First Amended Complaint,” filed on March
6, 2018, is third in sequence and the last filed document, and thus the Court
considers it as the Third Amended Complaint. [2]
Plaintiff does not sequentially list his paragraphs in his TAC. For example,
here the appropriate citation to TAC is 11-15 but there are no Paragraphs 13
and 14. The Court overlooks this error and identifies specific paragraphs as necessary.
[3]
Some of the stated facts are duplicative in multiple causes of action.
Therefore, the Court declines to identify them all.Background
Summary
of Pleadings
Request
for Judicial Notice
Evidentiary Objections
Objection to Brandt Declaration
C. Objection
to Exhibits N and P (annexed to the Brandt Declaration)
D. Objection
to Exhibits B to M and O (annexed to the Salse Declaration)
E. Objection
to Salse Declaration Paragraphs 2, 5-13.
Legal Standard
Statement of Undisputed Facts
Discussion
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
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
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
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
E. ISSUE NO.
5: Plaintiff’s Third, Fourth and Sixth Causes of Action are barred by the
Doctrine of Avoidable Consequences
F. ISSUE
NO. 6: Defendants are entitled to judgment as a matter of law on Plaintiff’s
Seventh and Eighth Causes of Action
G. ISSUE NO.
7: Plaintiff’s Ninth Cause of Action is without merit as Plaintiff fails to
show Defendants' conduct was outrageous
Conclusion
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