On 03/26/2018 JOSE DIAZ filed a Labor - Wrongful Termination lawsuit against STANFORD HOTELS CORPORATION. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are RITA MILLER and DAVID SOTELO. The case status is Pending - Other Pending.
Pending - Other Pending
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
HARBOR VIEW HOLDINGS INC.
STANFORD HOTELS CORPORATION
HILTON WOODLAND HILLS/LOS ANGELES
DOES 1 TO 25
HARBOR VIEW HOLDINGS INC.(EXCLUDED)
STANFORD HOTELS CORPORATION(EXCLUDED)
CANOGA HOTEL CORPORATION DBA HILTON
BEROKIM KOUSHA ESQ.
TRAN TIFFANY T.
SEYFARTH SHAW LLP
1/11/2019: Proof of Service by Mail
1/11/2019: Ex Parte Application
3/14/2019: Memorandum of Points & Authorities
3/14/2019: Request for Judicial Notice
3/14/2019: Proof of Service (not Summons and Complaint)
3/14/2019: Separate Statement
4/29/2019: Minute Order
6/24/2019: Motion for Summary Judgment
4/26/2018: FIRST AMENDED COMPLAINT: 1. DISABILITY DISCRIMINATION AND PERCEIVED DISCRIMINATION IN VIOLATION OF FEHA; ETC
4/6/2018: Minute Order
3/28/2018: NOTICE OF CASE MANAGEMENT CONFERENCE
3/26/2018: PLAINTIFF'S COMPLAINT FOR DAMAGES 1. DISABILITY DISCRIMINATION AND PERCEIVED DISCRIMINATION IN VIOLATION OF FEHA; ETC
3/26/2018: CIVIL DEPOSIT
at 08:30 AM in Department 40; Hearing on Motion for Summary Judgment - Not Held - Continued - Party's MotionRead MoreRead Less
at 09:30 AM in Department 40; Jury Trial - Held - ContinuedRead MoreRead Less
at 08:30 AM in Department 40; Hearing on Motion for Summary Judgment - Not Held - Rescheduled by CourtRead MoreRead Less
Motion for Summary Judgment; Filed by CANOGA HOTEL CORPORATION DBA HILTON (Defendant)Read MoreRead Less
at 08:30 AM in Department 40; Final Status Conference - Held - ContinuedRead MoreRead Less
Declaration (OF JENNY ORTEGA IN SUPPORT OF DEFENDANT CANOGA HOTEL CORPORATION'S MOTION FOR SUMMARY JUDGMENT, OR ALTERNATIVE, SUMMARY ADJUDICATION); Filed by CANOGA HOTEL CORPORATION DBA HILTON (Defendant)Read MoreRead Less
Declaration (OF MARIBEL PRECIADO IN SUPPORT OF DEFENDANT CANOGA HOTEL CORPORATION'S MOTION FOR SUMMARY JUDGMENT, OR ALTERNATIVE, SUMMARY ADJUDICATION); Filed by CANOGA HOTEL CORPORATION DBA HILTON (Defendant)Read MoreRead Less
Proof of Service (not Summons and Complaint); Filed by CANOGA HOTEL CORPORATION DBA HILTON (Defendant)Read MoreRead Less
Request for Judicial Notice; Filed by CANOGA HOTEL CORPORATION DBA HILTON (Defendant)Read MoreRead Less
Separate Statement; Filed by CANOGA HOTEL CORPORATION DBA HILTON (Defendant)Read MoreRead Less
Notice of Case Management Conference; Filed by ClerkRead MoreRead Less
PEREMTORY CHALLENGE TO JUDICIAL OFFICERRead MoreRead Less
NOTICE OF CASE MANAGEMENT CONFERENCERead MoreRead Less
Challenge To Judicial Officer - Peremptory (170.6); Filed by Jose Diaz (Plaintiff)Read MoreRead Less
NOTICE OF CLERICAL ERRORRead MoreRead Less
CIVIL DEPOSITRead MoreRead Less
ERRORRead MoreRead Less
Complaint; Filed by Jose Diaz (Plaintiff)Read MoreRead Less
SUMMONSRead MoreRead Less
PLAINTIFF'S COMPLAINT FOR DAMAGES 1. DISABILITY DISCRIMINATION AND PERCEIVED DISCRIMINATION IN VIOLATION OF FEHA; ETCRead MoreRead Less
Case Number: BC699415 Hearing Date: December 17, 2019 Dept: 40
MOVING PARTY: Defendant Canoga Hotel Corporation
OPPOSITION: Plaintiff Jose Diaz
On October 2, 2019 (after a September 19, 2019 hearing), the Court granted, in part, and denied, in part, defendant’s motion for summary judgment.
The Court denied summary adjudication of Plaintiff’s First through Third causes of action for disability discrimination, failure to provide reasonable accommodation, and failure to engage in interactive process.
The Court granted summary adjudication of Plaintiff’s Fourth through Sixth causes of action for retaliation, failure to prevent discrimination and retaliation, and wrongful termination in violation of public policy. The Court also dismissed Plaintiff’s claims for emotional distress damages and punitive damages.
On October 18, 2019, Plaintiff filed an ex parte motion for reconsideration on the ground that the Court’s rulings appeared to be inconsistent. Plaintiff was ordered to utilize the Court’s reservation system to set a formal hearing date. As a result of the ex parte, the Court sui sponte reviewed its October 2 order, determined that inconsistencies did indeed exist, then prepared--but did not file—today’s ruling.
Again, plaintiff is correct that the October 2 ruling was inconsistent. Unfortunately, it did not accurately reflect the Court’s position post-hearing.
The Court now provides an updated version of its ruling in this motion.
Canoga’s motion for summary judgment is DENIED.
Canoga’s motion for summary adjudication is GRANTED as to Plaintiff’s punitive damages claim only.
Standard: A court may reconsider a prior ruling if the party affected provides notice of “new or different facts, circumstances, or law.” Cal. Code of Civ. Proc. §1008(a). When a trial court enters judgment, it loses jurisdiction to consider a motion for reconsideration. Safeco Ins. Co. v. Architectural Facades Unlimited, Inc. (2005) 134 Cal.App.4th 1477, 1482.
Plaintiff Jose Diaz sues his former employer Defendant Canoga Hotel Corporation dba Hilton Hotel Woodland Hills (“Canoga”). Diaz was employed by Canoga from January 2016 until October 2017, as a Houseman/Houseman, whose duties involved housekeeping and some janitorial-related work at the hotel.
In June 2016, Diaz suffered a workplace injury when an elevator he was in crashed. He was
placed of limited duty, then, one month later in July, he suffered another workplace accident,
which caused his physician to issue him temporary work restrictions which included limited
lifting, pulling and push only up to ten pounds.
From July 2016 to July 2017, Diaz continued to work for Canoga under a temporary restriction
until he was placed on leave. The parties dispute the precise nature of the work Diaz performed
during this time.
In August 2017, Diaz’s physician issued him a Permanent work restriction which prevented him
from lifting more than ten pounds, from bending his lower back, and significantly, from
repetitive neck bending.
In October 2017, was Diaz terminated when his leave expired. Diaz filed a first amended complaint against Canoga alleging:
1) Disability Discrimination and Perceived Discrimination in Violation of FEHA;
2) Failure to Provide Reasonable Accommodations in Violation of FEHA;
3) Failure to Engage in the Interactive Process in Violation of FEHA;
4) Retaliation in Violation of FEHA;
5) Failure to Take All Reasonable Steps to Prevent Discrimination and Retaliation;
6) Wrongful Termination in Violation of Public Policy.
Evidentiary Objections: Diaz objects to statements contained in the March 2019 Declarations of Jenny Ortega and Maribel Preciado: Objections 6 to 14 (there is no 7) are OVERRULED, all others SUSTAINED.
Diaz also objects to Canoga’s request for Judicial Notice of the transcript of Diaz’s Workers’
Compensation Deposition, Diaz’s medical records, Diaz’s Compromise and Release, and the
Order Approving Compromise and Release. The Court agrees with Diaz that it can take judicial
notice of the existence of the documents but not the contents therein. The Court cannot accept as
true the contents of pleadings or exhibits in another action just because they are part of a court
record or file. Such documents are inadmissible hearsay. The Objection is SUSTAINED and
defendant’s request for Judicial Notice is DENIED.
Canoga’s objections to Diaz’s September 4, 2019 Declaration are all OVERRULED.
First Cause of Action: Disability Discrimination Claim-DENIED
A prima facie case of disability discrimination under FEHA requires a showing that the plaintiff
(1) suffered from a medical condition or physical disability, (2) was able to perform the essential
functions of his job, with or without reasonable accommodation, and (3) was subjected to
adverse employment action because of the disability—that is, the disability was a substantial
factor motivating the employer’s adverse action. Castro-Ramirez v. Dependable Highway
Express, Inc. (2016) 2 Cal.App.5th 1028, 1037. Once the plaintiff establishes a prima facie case,
“the burden then shifts to the employer to offer a legitimate, nondiscriminatory reason for the
adverse employment action.” Deschene v. Pinole Point Steel Co. (1999) 76 Cal.App.4th 33, 44.
The plaintiff may then show the employer’s proffered reason is pre-textual or offer any further
evidence of discriminatory motive. (Castro-Ramirez, supra, 2 Cal.App.5th at p. 1037.) “‘In an
appropriate case, evidence of dishonest reasons, considered together with the elements of the
prima facie case, may permit a finding of prohibited bias.’” (Ibid.)
The Court finds that Diaz can establish that he was able to perform the essential functions of 1) the Houseman position. The essential “physical” functions of the Houseman position are (2) linen to laundry; (4) Collecting trash and recycling from guest room attendant's carts and
disposing of it properly; and (5) Delivering all extra supplies to linen closets; (6) Vacuum
hallways, dust hallway pictures, tables, etc.; (7) Sweep and mop stairwells and service elevator
landings; (8) Sweep and mop vending machine areas and keeps machines clean; (10) Collect
dirty glasses and mugs and take to housekeeping for cleaning and (12) Flips mattresses quarterly.
(As numbered in Exh. C of Preciado Decl. & UMF No. 4.) The physical requirements for the
position involve: Crouching, Stooping, Twisting/Turning at Knees, Waist, and Neck,
Pushing/pulling and Lifting more than 10 pounds. (UMF No. 5.)
Diaz argues that he was able to perform the essential duties of the houseman position despite the
work restrictions imposed by his injury. It appears that even though his physician issued the July
2016 temporary work restrictions limiting lifting, pulling and pushing, no items heavier that ten
pounds, frequent change of position as tolerated, sit or stand as needed for comfort, limited
overhead work, limited stooping, bending, limited kneeling or squatting (UMF No. 12.), Diaz
continued to perform his Houseman duties from approximately July 2016 to July 2017. Diaz
states that during this period he was not granted any formal accommodation by Canoga. Instead,
Diaz contends that the only adjustment was that he performed his Houseman duties, he did so
at a slower pace.
In August 2017, Diaz’s physician gave him new Permanent work restrictions. These work
restrictions included no lifting over ten pounds, no repetitive bending of low back, and no
repetitive neck bending. (UMF No. 33.) Diaz argues that these restrictions were essentially the
same as the previous restrictions and that he would still have been able to continue working as a
Houseman as he had been doing from July 2016 to July 2017.
Canoga states that from July 2016 to June 2017, Diaz did not work as a Houseman. Instead
Canoga contends that after Diaz’s injury, he was placed into a “transitional work program” in
which he was given odd jobs to do in the hotel. These modified duties included polishing
silverware, dusting picture frames and lamps around the guest room corridors, vacuuming
furniture, preparing amenities, helping with recycling, folding towels, and answering guest
request calls. (Ortega Depo., Pg. 44, lns 24-45.)
Diaz disagrees, stating that he was not placed into and had never heard of a transitional work
program, and that the so-called “odd jobs” referred to were duties he performed as a
Houseman. (Diaz Decl., ¶¶ 14-15.)
Diaz’s declaration is slightly contradicted by his deposition testimony. Generally, an opposing
party may be bound by admissions made in deposition testimony “when discovery has produced
an admission or concession on the part of the party opposing summary judgment which
demonstrates that there is no factual issue to be tried . . .,’ controverting affidavits submitted . . .
may be disregarded.” D’Amico v. Board of Med. Examiners (1974) 11 Cal.3d 1, 21; see
Benavidez v. San Jose Police Dept. (1999) 71 Cal.App.4th 853, 860 [holding that a “party cannot
create an issue of fact by a declaration which contradicts his prior [discovery responses]”].
At his deposition Diaz admitted that when he returned to his Houseman role in April of 2017
(Diaz Depo., p. 122, 10-24), he was assigned to the hotel’s restaurant to perform restaurant other
duties, some of which he had not done before his injury. (Diaz Depo. p. 110, lns 4-15.)
Diaz cannot create an issue of fact by declaring that in 2016-2017 he was working as a
Houseman doing the same duties he had always done when he has previously declared that the
restaurant assignment had never been part of his pre-injury Houseman job. But, this
contradiction is of minor meaning. Diaz may have not been performing all the essential functions
of a Houseman between July 2016 and July 2017, but the “light duty” (add-on) tasks were no
different to his Houseman duties: this add-on, odd job or light duty task—helping in the
restaurant--appear to be meaningless. For example, Housekeeping Houseman ESSENTIAL
JOB DUTIES AND RESPONSIBILITIES number “(21) Follow supervisor’s instructions and
perform other duties as directed or assigned.” (Exh. C., p. 2, of Preciado Decl.)
Moreover, Diaz has met his burden in establishing that he could have performed the essential
physical functions of the position with a reasonable accommodation.
Diaz states that he could have performed the essential functions of the position if he worked at a
slower pace. As a Houseman, Diaz had to push around a cart that was often loaded with linens,
towels, trash, and recyclables. Diaz could not lift more than ten pounds and these carts would
often weigh more than that. Diaz alleges that he asked Ortega to let him do this task with a
lighter load. (UMF No. 95.) These accommodations would have satisfied Diaz’s lifting restriction.
Canoga’s motion for summary judgment is DENIED.
Second Cause of Action: Failure to Provide Reasonable Accommodation-DENIED
“In addition to setting forth a general prohibition against unlawful employment discrimination
based on disability, FEHA provides an independent cause of action for an employer’s failure to provide a reasonable accommodation for an . . . employee’s known disability.” Moore v. Regents
of University of California (2016) 248 Cal.App.4th 216, 241. It is an unfair employment practice
for an employer “to fail to make reasonable accommodation for the known physical or mental
disability of an applicant or employee.” (Gov. Code, § 12940, subd. (m)(1).) “The elements of a
reasonable accommodation cause of action are (1) the employee suffered a disability, (2) the
employee could perform the essential functions of the job with reasonable accommodation, and
(3) the employer failed to reasonably accommodate the employee’s disability.” Nealy, supra, 234
Cal.App.4th at p. 373.
Canoga disputes that Diaz ever requested a reasonable accommodation. Diaz refutes this and
states that at various times he asked to work at a slower pace and to carry a lighter load of linens and towels. Diaz argues that he was able to perform the essential job duties of a Houseman for over a year with these accommodations. The parties dispute whether Diaz was performing the same duties as a Houseman during the year in question. Therefore, there is a triable issue of material fact as to whether Diaz ever requested a reasonable accommodation and whether he was performing the essential duties of his position.
Canoga’s motion for summary judgment is DENIED.
Third Cause of Action: Failure to Engage in the Interactive Process-DENIED
An employer with knowledge of an employee’s physical disability has a separate statutory duty
to engage in a timely, good faith interactive process to determine whether a reasonable
accommodation would enable the employee to perform the essential functions of the job. (Gov.
Code, § 12940, subd. (n).) To be entitled to proceed with a lawsuit based on an employer’s
“‘failure to engage in the interactive process, an employee must identify a reasonable
accommodation that would have been available at the time the interactive process should have
occurred.”’ Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1018. The
employee need not identify all possible accommodations while still employed; but once litigation
has ensued, “‘the employee must be able to identify an available accommodation the interactive
process should have produced.”’ (Ibid.)
The Court finds that there is a triable issue of material fact as to whether Canoga engaged in an
interactive process with Diaz. Canoga argues that it did engage in an interactive process with
Diaz, by providing him an accommodation for over a year and that Ortega, Diaz’s supervisor,
communicated with him daily about his status.
The July 2017 Temporary Work Restriction became Permanent on August 25, 2017, a date when
Diaz was on leave (Family and Medical Leave Act-FMLA leave). The work restrictions became permanent when Diaz was not working under any restriction—Temporary or Permanent—he was not working at all.
So, two months later, on October 9, 2017, Diaz was invited to a meeting with Ortega and
Preciado. At the meeting Canoga claims they discussed Diaz’s ability to perform the essential
functions of his job in light of his now Permanent work restriction (Preciado Decl., ¶ 17.), and,
according to Canoga, because Diaz failed to suggest any accommodation that would allow him
to perform his position (UMF No. 34), he Diaz was terminated.
This Court finds there is a dispute whether any meaningful interactive process ever took place at
all after the August 25 Permanent restrictions. As a reminder, defendant bears a greater burden
here to show that Diaz was unable to perform the essential functions of a Houseman and any
other available vacant position Canoga may have assigned him to. Nadaf-Rahrov v. Neiman
Marcus Group, Inc. (2008) 166 Cal. App. 4th 952, 965-96.
Accordingly, Canoga’s motion for summary judgment is DENIED.
Fourth Cause of Action: FEHA Retaliation-DENIED
It is unlawful for an employer to retaliate against an employee because she reported sexual
harassment or filed a complaint under the FEHA. (See Gov.C. § 12940(h).) “[I]n order to
establish a prima facie case of retaliation under the FEHA, a plaintiff must show (1) he or she
engaged in a ‘protected activity,’ (2) the employer subjected the employee to an adverse
employment action, and (3) a causal link existed between the protected activity and the
employer’s action.” Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042. “The causal
link may be established by an inference derived from circumstantial evidence, ‘such as the
employer’s knowledge that the [employee] engaged in protected activities and the proximity in
time between the protected action and allegedly retaliatory employment decision.” Morgan v.
Regents of University of California (2000) 88 Cal.App.4th 52, 69.
Diaz was subject to an adverse employment action because he was terminated. As discussed previously, there is a triable issue of material fact as to whether Diaz requested a reasonable accommodation for his disability, which would be a protected activity. (See Gov. Code § 12940(l), (m)(2).)
Canoga’s motion for summary judgment is DENIED.
Fifth and Sixth Causes of Action: Failure to Prevent Discrimination and Retaliation & Wrongful Termination in Violation of Public Policy-DENIED
These causes of action are derivative of the discrimination and retaliation claims. (See Okorie v. Los Angeles Unified School Dist. (2017) 14 Cal.App.5th 574, 597 [stating that a failure to prevent discrimination claim is derivative because a plaintiff cannot maintain said cause of action unless there was harassment].) (See also Husman v. Toyota Motor Credit Corp. (2017) 12 Cal.App.5th 1168, 1192, fn. 13 [reversing summary adjudication of wrongful termination claim when it reversed summary adjudication of a FEHA discrimination claim, because both claims were “grounded in the same conduct.”).]
The motion for summary judgment is DENIED.
Emotional Distress Claim: DENIED
Canoga argues that Diaz’s emotional distress claims are equitably barred. Canoga contends that
Diaz already recovered for these claims in his workers’ compensation case. Diaz’s settlement in
the workers’ compensation case did not include a wavier for his civil claims. Nevertheless,
Canoga argues that Diaz’s workers’ compensation claims and his civil claim both allege he was
injured while he was conducting his that occurred at the hotel. However, the Court disagrees
with this interpretation. Diaz’s workers’ compensation claim was about his workplace injury.
Diaz’s civil claim is about Canoga’s workplace actions, resulting in his termination, in response
to his injury. Although the workplace actions arise from the injury, they are not the same.
Accordingly, summary judgment as to this claim is DENIED.
Punitive Damages Claim: GRANTED
Punitive damages generally may be awarded in a civil action only if the plaintiff proves by clear
and convincing evidence that “the defendant has been guilty of oppression, fraud, or malice . . .
.” (Civ. Code, § 3294, subd. (a).) “Malice” means conduct that “is intended by the defendant to
cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a
willful and conscious disregard of the rights or safety of others.” (Id., § 3294, subd. (c)(1).)
“Oppression” means “despicable conduct that subjects a person to cruel and unjust hardship in
conscious disregard of that person’s rights.” (Id., § 3294, subd. (c)(2).) And “fraud” means
“intentional misrepresentation, deceit, or concealment of a material fact known to the defendant
with the intention on the part of the defendant of thereby depriving a person of property or legal
rights or otherwise causing injury.” (Id., § 3294, subd. (c)(3).)
Diaz argues that discrimination is in and of itself fraudulent, malicious, oppressive, or done with conscious disregard as to his rights. Diaz cites to Cloud v. Casey (1999) 76 Cal.App.4th 895, 912 to support that proposition. In Cloud, plaintiff, a female, applied for a promotion. The job was given to a male candidate. Evidence was presented to the jury that the explanation for choosing the male candidate over plaintiff was pretextual and developed after the fact. The court stated that the adjective despicable used in section 3294 referred to circumstances that were base, vile, or contemptible. The court found that defendant’s conduct was malice or oppression as defined under Section 3294 because the adverse employment action and attempt to hide it were base, vile, or contemptible. (Ibid.) Cloud is distinguishable because there was no pretext involved that would demonstrate malice or oppression. Canoga did not hide the fact that they terminated Diaz because of his injuries.
Accordingly, summary adjudication of this claim is GRANTED.
Conclusion: Canoga’s motion for summary judgment is DENIED. Canoga’s motion for summary
adjudication is GRANTED as to Plaintiffs’ punitive damages claim.
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