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This case was last updated from Los Angeles County Superior Courts on 05/30/2019 at 06:36:46 (UTC).

JOY SLAGEL VS LIBERTY MUTUAL INSURANCE COMPANY ET AL

Case Summary

On 01/26/2017 JOY SLAGEL filed a Labor - Wrongful Termination lawsuit against LIBERTY MUTUAL INSURANCE COMPANY. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is RICHARD E. RICO. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****8246

  • Filing Date:

    01/26/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Labor - Wrongful Termination

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

RICHARD E. RICO

 

Party Details

Plaintiff and Petitioner

SLAGEL JOY

Defendants and Respondents

LO ARIAM ALEMSEGHED LEANN

DOES 1 TO 100

LIBERTY MUTUAL INSURANCE COMPANY

Attorney/Law Firm Details

Plaintiff and Petitioner Attorney

SHEGERIAN CARNEY R. ESQ.

Defendant and Respondent Attorney

FOSSATI YVONNE ARVANITIS ESQ.

 

Court Documents

PLAINTIFFS' MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT'S MOTION TO COMPEL DEPOSITION AND FOR SANCTIONS EXHIBITS AND DECLARATION OF CEFCILIA SON

12/14/2017: PLAINTIFFS' MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT'S MOTION TO COMPEL DEPOSITION AND FOR SANCTIONS EXHIBITS AND DECLARATION OF CEFCILIA SON

TENTATIVE RULING

1/16/2018: TENTATIVE RULING

Minute Order

1/16/2018: Minute Order

NOTICE TO SUPERIOR COURT OF REMOVAL OF CIVIL ACTION TO FEDERAL COURT

1/31/2018: NOTICE TO SUPERIOR COURT OF REMOVAL OF CIVIL ACTION TO FEDERAL COURT

Minute Order

3/5/2018: Minute Order

NOTICE OF STATUS CONFERENCE

3/6/2018: NOTICE OF STATUS CONFERENCE

Minute Order

4/10/2018: Minute Order

Minute Order

12/3/2018: Minute Order

Proof of Service by Mail

1/18/2019: Proof of Service by Mail

Objection

1/18/2019: Objection

Declaration

1/18/2019: Declaration

Order Appointing Court Approved Reporter as Official Reporter Pro Tempore

2/19/2019: Order Appointing Court Approved Reporter as Official Reporter Pro Tempore

Order

2/19/2019: Order

SUMMONS

1/26/2017: SUMMONS

PROOF OF SERVICE SUMMONS

2/7/2017: PROOF OF SERVICE SUMMONS

DEFENDANT ARIAM ALEMSEGHED'S ANSWER TO PLAINTIFF JOY SLAGEL'S COMPLAINT FOR DAMAGES

3/23/2017: DEFENDANT ARIAM ALEMSEGHED'S ANSWER TO PLAINTIFF JOY SLAGEL'S COMPLAINT FOR DAMAGES

Minute Order

8/29/2017: Minute Order

NOTICE OF ORDER TO SHOW CAUSE HEARING RE DEFENDANT'S FAILURE TO APPEAR

11/13/2017: NOTICE OF ORDER TO SHOW CAUSE HEARING RE DEFENDANT'S FAILURE TO APPEAR

35 More Documents Available

 

Docket Entries

  • 05/17/2019
  • at 08:30 AM in Department 17, Richard E. Rico, Presiding; Status Conference - Held - Continued

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  • 05/17/2019
  • Minute Order ( (Status Conference)); Filed by Clerk

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  • 05/14/2019
  • at 08:30 AM in Department 17, Richard E. Rico, Presiding; Hearing on Motion for Summary Judgment - Not Held - Rescheduled by Party

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  • 05/10/2019
  • at 08:30 AM in Department 17, Richard E. Rico, Presiding; Hearing on Motion for Summary Judgment - Not Held - Rescheduled by Party

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  • 03/13/2019
  • at 08:30 AM in Department 17, Richard E. Rico, Presiding; Hearing on Motion to Compel Further Discovery Responses - Not Held - Taken Off Calendar by Party

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  • 02/26/2019
  • Notice of Ruling; Filed by Liberty Mutual Insurance Company (Defendant)

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  • 02/19/2019
  • at 08:30 AM in Department 17, Richard E. Rico, Presiding; Hearing on Motion to Compel Discovery (not "Further Discovery") - Held - Motion Denied

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  • 02/19/2019
  • Order Appointing Court Approved Reporter as Official Reporter Pro Tempore; Filed by Clerk

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  • 02/19/2019
  • Order (ORDER ON TENTATIVE RULING); Filed by Clerk

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  • 02/19/2019
  • Minute Order ( (Hearing on Motion to Compel Discovery (not "Further Discovery"))); Filed by Clerk

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77 More Docket Entries
  • 03/10/2017
  • NOTICE OF UNAVAILABILITY OF COUNSEL

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  • 02/23/2017
  • Proof-Service/Summons; Filed by Joy Slagel (Plaintiff)

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  • 02/23/2017
  • PROOF OF SERVICE OF SUMMONS

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  • 02/14/2017
  • PROOF OF SERVICE SUMMONS

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  • 02/14/2017
  • Proof-Service/Summons; Filed by Joy Slagel (Plaintiff)

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  • 02/07/2017
  • PROOF OF SERVICE SUMMONS

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  • 01/26/2017
  • PLAINTIFF JOY SLAGEL'S COMPLAINT FOR DAMAGES FOR: (1) DISCRIMINATION ON THE BASIS OF AGE IN VIOLATION OF FEHA ;ETC

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  • 01/26/2017
  • Complaint; Filed by Joy Slagel (Plaintiff)

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  • 01/26/2017
  • SUMMONS

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  • 02/07/2016
  • Proof-Service/Summons; Filed by Joy Slagel (Plaintiff)

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Tentative Rulings

Case Number: BC648246    Hearing Date: May 6, 2021    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

JOY SLAGEL

vs.

LIBERTY MUTUAL INSURANCE COMPANY, ARIAM ALEMSEGHED, and LEANN LO

Defendants.

Case No.: BC648246

Hearing Date: May 6, 2021

The Court’s tentative is to award Defendant Lo $0.00 in reasonable attorney fees. Based on oral argument, the Court will consider allowing counsel to file supplemental materials. Any supplemental materials which are filed must be organized and limited to the services provided for Defendant Lo alone. If counsel contends that any material is privileged, that information should be individually redacted.

On January 26, 2017, Plaintiff Joy Slagel (Plaintiff) filed suit against Liberty Mutual Insurance Company (LMIC), Ariam Alemseghed, and Leann Lo, alleging: (1) age discrimination; (2) age harassment; (3) retaliation in violation of FEHA; (3) discrimination on the basis of taking disability leave in violation of FEHA; (5) retaliation for taking disability leave in violation of FEHA; (6) failure to provide reasonable accommodation in violation of FEHA; (7) failure to engage in the interactive process in violation of FEHA; (8) breach of express oral contract not to terminate employment without good cause; (9) breach of implied in fact contract not to terminate employment without good cause; (10) wrongful termination of employment in violation of public policy; (11) violation of Labor Code section 1102.5; and (12) intentional infliction of emotional distress (IIED).

On 12/15/2020, this Court granted Defendant Lo’s motion for sanctions. Defendant Lo was directed to file a verified memorandum of costs and a motion for attorneys fees.

On 1/8/2021, Defendant Lo filed a verified memorandum of costs. On 3/18/2021, the Court issued a ruling on Plaintiff’s motion to tax costs.

Now, the Court considers Defendant Lo’s motion for attorney fees.

Legal Standard

The party claiming attorneys’ fees must establish entitlement to such fees and the reasonableness of the fees claimed. (Civic Western Corporation v. Zila Industries, Inc. (1977) 66 Cal.App.3d 1, 16.) “Except as attorney’s fees are specifically provided for by statute, the measure and mode of compensation of attorneys and counselors at law is left to the agreement, express or implied, of the parties[.]” (CCP § 1021.)

“It is well established that the determination of what constitutes reasonable attorney fees is committed to the discretion of the trial court, whose decision cannot be reversed in the absence of an abuse of discretion.” (Melnyk v. Robledo (1976) 64 Cal.App.3d 618, 623.) In exercising its discretion, the court should consider a number of factors, including the nature of the litigation, its difficulty, the amount involved, the skill required in handling the matter, the attention given, the success or failure, and the resulting judgment. (Ibid.)

In determining what constitutes a reasonable compensation for an attorney who has rendered services in connection with a legal proceeding, the court may and should consider the nature of the litigation, its difficulty, the amount involved, the skill required and the skill employed in handling the litigation, the attention given, the success of the attorneys’ efforts, their learning, their age, and their experience in the particular type of work demanded the intricacies and importance of the litigation, the labor and necessity for skilled legal training and ability in trying the cause, and the time consumed. (Stokus v. Marsh (1990) 217 Cal.App.3d 647, 657 (Stokus).)

In determining the proper amount of fees to award, courts use the lodestar method. The lodestar figure is calculated by multiplying the total number of reasonable hours expended by the reasonable hourly rate. “Fundamental to its determination … [is] a careful compilation of the time spent and reasonable hourly compensation of each attorney … in the presentation of the case.” (Serrano v. Priest (1977) 20 Cal.3d 25, 48 (Serrano III).) A reasonable hourly rate must reflect the skill and experience of the attorney. (Id. at 49.) “Prevailing parties are compensated for hours reasonably spent on fee-related issues. A fee request that appears unreasonably inflated is a special circumstance permitting the trial court to reduce the award or deny one altogether.” (Serrano v. Unruh (1982) 32 Cal.3d 621, 635 (Serrano IV); see also Weber v. Langholz (1995) 39 Cal.App.4th 1578, 1587 (“The trial court could make its own evaluation of the reasonable worth of the work done in light of the nature of the case, and of the credibility of counsel’s declaration unsubstantiated by time records and billing statements.”)

Reasonable attorney fees should be based on an objective standard of reasonableness, i.e., the market value of services rendered, not on some notion of cost incurred. (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1090.) The value of legal services performed in a case is a matter in which the trial court has its own expertise. (Id. at 1096.) The trial court may make its own determination of the value of the services contrary to, or without the necessity for, expert testimony. (Ibid.) The trial court makes its determination after consideration of a number of factors, including the nature of the litigation, its difficulty, the amount involved, the skill required in its handling, the skill employed, the attention given, the success or failure, and other circumstances in the case. (Ibid.)

Discussion

Here, Defendant Lo advances two different methodologies for calculating attorneys fees, each of which produces a different fee figure:

Under one methodology, the total sum of fees would be split by four, “representing the FEHA age harassment cause of action, IIED cause of action, and Plaintiff’s prayer for punitive damages as against Lo out of the total twelve (12) causes of action), as the calculation of the fees incurred by Defendant Lo.” (Motion, 6: 13-15.) Under this methodology, Defendant Lo’s total fees would be $249,714.712.

Under the second methodology, Defendant Lo’s counsel, Ms. Fossati, adds together the billing entries which correspond to Defendant Lo’s defense. Under this methodology, “The total amount of line-itemized fees billed by my firm in the defense of Leann Lo in this matter total $70,058.30.” (Fossati Decl., ¶ 30.)

However, the Court is unable to access the reasonableness of any incurred fees because the billing records submitted by counsel have been redacted to remove all descriptions of the legal services provided. Accordingly, the only description provided in hundreds of pages of billing records are excel codes which are incomprehensible to this Court. For example, two hours of legal work on 7/24/20 are described only as “L240” and “A103”. Counsel claims that this was done “[t]o protect against the disclosure of information that invades the attorney-client privilege and attorney/work product doctrine,” and instead describes the work in a submitted declaration. (Fossati Decl., ¶ 30.) However, it is unclear why the legal services can be summarized in a declaration without implicating privilege, but cannot be described in the billing records. Moreover, counsel has not set forth any basis which would convince this Court that every description of services implicated privilege. Third, counsel has not submitted any case law which would suggest that this Court can assess the reasonableness of attorneys fees based on declarations self-reporting hours worked. Fourth, the services which were described in the declaration total only $25,512.55 [(Group 1 ($14,848.00 + $3,378.50) + Group 3 ($7,286.25)).

The Court’s award of reasonable attorneys fees as sanctions was discretionary. (CCP § 128.7, subd. (c)(1), “If warranted, the court may award to the party prevailing on the motion the reasonable expenses and attorney’s fees incurred in presenting or opposing the motion.”) Defendant Lo’s counsel has submitted billing records which are stripped of any description of legal services. Thus, the Court has no way of corroborating the claims of hours worked or services performed by any member of counsel’s firm for Defendant Lo’s defense. This is especially problematic given that the sanctions award is limited to Defendant Lo, and counsel represented the additional Defendants.

Ultimately, counsel’s attorney fees motion resembles its opposition to Plaintiff’s motion to tax cost—counsel submits a pile of records hoping that the Court will simply rubber stamp them. Defendant Lo has not submitted any evidence that would allow the Court to determine that any legal services claimed were, in fact, incurred, and were reasonable.

Based on the foregoing, the Court’s tentative is to award $0.00 in attorneys fees. (CCP § 128.7, subd. (c)(1).) However, based on oral argument, the Court will consider allowing Defendant Lo to submit supplemental materials to address the deficiencies identified here. However, the Court strongly admonishes Defendant Lo’s counsel for engaging in the same exact behavior which this Court already admonished it for in the motion to tax costs hearing. Counsel is to file organized billing records which clearly indicate the work performed for Defendant Lo alone. If counsel contends that any description is privileged, that information should be individually redacted within the document.

It is so ordered.

Dated: May , 2021

Hon. Jon R. Takasugi Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative. If all parties to a motion submit, the court will adopt this tentative as the final order. If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar.

Due to Covid-19, the court is strongly discouraging in-person appearances. Parties, counsel, and court reporters present are subject to temperature checks and health inquiries, and will be denied entry if admission could create a public health risk. The court encourages the parties wishing to argue to appear via L.A. Court Connect. For more information, please contact the court clerk at (213) 633-0517. Your understanding during these difficult times is appreciated.

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

JOY SLAGEL

vs.

LIBERTY MUTUAL INSURANCE COMPANY, ARIAM ALEMSEGHED, and LEANN LO

Defendants.

Case No.: BC648246

Hearing Date: May 6, 2021

Plaintiff’s motion to tax costs is CONTINUED. Defendants are to submit an updated memorandum of costs within 12 days to reflect only those causes of action for which they are entitled to recover costs. Plaintiff may then file a supplemental brief raising her objections to the updated costs.

On January 26, 2017, Plaintiff Joy Slagel (Plaintiff) filed suit against Liberty Mutual Insurance Company (LMIC), Ariam Alemseghed, and Leann Lo, alleging: (1) age discrimination; (2) age harassment; (3) retaliation in violation of FEHA; (3) discrimination on the basis of taking disability leave in violation of FEHA; (5) retaliation for taking disability leave in violation of FEHA; (6) failure to provide reasonable accommodation in violation of FEHA; (7) failure to engage in the interactive process in violation of FEHA; (8) breach of express oral contract not to terminate employment without good cause; (9) breach of implied in fact contract not to terminate employment without good cause; (10) wrongful termination of employment in violation of public policy; (11) violation of Labor Code section 1102.5; and (12) intentional infliction of emotional distress (IIED).

Now, Plaintiff moves to tax costs. The Court’s analysis below concerns costs for Defendants LMIC and Ariam Alemseghed. The Court already ruled on costs for Defendant Lo in a separate ruling issued on 3/18/2021.

Legal Standard

Under Government Code section 12965, subdivision (b), the Court “…in its discretion, may award to the prevailing party, including the department, reasonable attorney’s fees and costs, including expert witness fees, except that, notwithstanding Section 998 of the Code of Civil Procedure, 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.”

Verification of the memorandum of costs by the prevailing party’s attorney establishes a prima facie showing that the claimed costs are proper.  (Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1267.) To overcome this prima facie showing, the objecting party must introduce evidence to support its claim that the costs are not reasonably necessary.  (Rappenecker v. Sea-Land Service, Inc. (1979) 93 Cal.App.3d 256, 266.)

“Allowable costs shall be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation.” (CCP § 1033.5(c)(2).) “Allowable costs shall be reasonable in amount.” (CCP § 1033.5(c)(3).)

Discussion

Here, Defendants LMIC and Ariam Alemseghed move for costs incurred, pursuant to CCP section 1032(b) and Government Code section 12965, subdivision (b).

However, as Defendants themselves note, CCP section 1032(b) only entitles Defendants to recovery of costs for the five causes of action asserted under common law theories and the California Labor Code (causes of action eight, nine, ten, eleven, and twelve). (“Government Code section 12965(b) expressly excepts FEHA actions from Code of Civil Procedure section 1032(b)’s mandate for a cost award to the prevailing party,” Williams v. Chino Valley Ind. Fire District (2015) 61 Cal.4th 97.)

While Government Code section 12965 allows recovery of costs for FEHA actions where the Court finds that the action was frivolous, unreasonable, or groundless, the Court has made no such determination with respect to Defendants LMIC and Ariam Alemseghed. The motion for sanctions was brought by Defendant Lo alone, and the Court directed counsel to separate the costs incurred defending Defendant Lo versus Defendants LMIC and Ariam Alemsehed precisely because the grounds for recovering costs were different. To the extent that Defendants’ counsel attempts to argue here that the FEHA claims against them were unreasonable, that is not appropriately raised here. Defendants’ counsel had an opportunity to move for sanctions on this basis, just as they did for Defendant Lo, but declined to do so.

Accordingly, Defendants are only entitled to costs incurred for causes of action eight through twelve. This, of course, complicates the Court’s ability to rule on this motion given that Defendants have claimed costs for all causes of action, rather than just the specific recoverable causes of action.

To add to the difficulty, Defendants opposition here is directed at the memorandum of costs filed on 12/1/2020 which concerned the $140,040.10 in total claimed costs. However, this particular memorandum included costs for Defendant Lo, and, as noted, Defendants’ counsel was directed to file a separate memorandum of costs specific to Defendant Lo. Defendants counsel filed this new memorandum on 1/8/2021 claiming $35,467.10 in costs. As a result, this motion should be directed at $104,573.00 in costs ($140,040.10 minus $35,467.10). Otherwise, Defendants here would be recovering costs incurred defending Defendant Lo.

Defendants’ failure to file a separate memorandum of costs here prevents this Court from reaching the merits of Plaintiff’s motion. For example, in opposition, Defendants provide a further breakdown of deposition costs, including $778.75 in taking costs, videotaping $9,304.60, transcribing $24,342.29, etc. However, because Defendants did not provide the same breakdown in its opposition to the motion aimed at Defendant Lo’s costs, the Court is unable to subtract Defendant Lo’s portion of costs from each of these figures. Put another way, the Court has no way of knowing which portion of the $778.75 in costs was incurred to take depositions related to Defendant Lo’s defense, and which were incurred as part of Defendants LMIC’s and Ariam Alemsehed’s defense. Obviously, LMIC and Ariam Alemsehed are not able to recover the portion incurred for Defendant Lo’s defense.

In its 3/18/2021 ruling on the motion to tax Defendant Lo’s costs, the Court outlined the ad hoc method for calculating costs under the circumstances, writing:

This motion for sanctions entitled Defendant Lo, alone, to recover costs. However, all Defendants were prevailing parties in this action. As a result, an ad hoc method for calculating Defendant Lo’s sanctions had to be devised. This is because there is no reasonable way to determine what percentage of culpability each Defendant represented in the case, because no Defendant was found to have committed wrongdoing.

One method for calculating Defendant Lo’s “share” of the case’s cost would be to divide the overall cost figure by the number of Defendants—in this case, three Defendants. Accordingly, under this method, the total costs would be divided by three.

Another method would be to divide the overall cost figure by the number of causes of action against Defendant in proportion to the total number of causes of action. Here there were twelve causes of actions total, three of which were asserted against Defendant Lo. Accordingly, under this method, the total costs would be divided by four (12 COAS/3 COAS).

Here, costs were calculated using the latter method (i.e., total costs were divided by four). Given that it is not reasonably possible to apportion the costs for each prevailing Defendant after the fact, the Court finds that the “divide by four” method represents the best choice, given that it is based on a reasonable logic (i.e., the number of causes of action against Defendant Lo in proportion to total number of causes of action), and because this method produces the smaller figure of the two.

Under this methodology, the costs incurred here should be calculated by dividing the cost figure ($104,573.00) by the number of recoverable causes of action in proportion to the total number of causes of action (12 COAs/5 COAs). By the Court’s calculation, this produces a figure of $43,572.0833.

Defendants are to submit an updated verified memorandum of costs within 12 days to reflect only those causes of action for which they are entitled to recover under CCP section 1032(b) using the same methodology adopted in the motion to tax Defendant Lo’s costs. Plaintiff may then file a supplemental brief raising objections to the updated figures. Defendants’ opposition will then be due 14 days prior to the new hearing date.

Based on the foregoing, Plaintiff’s motion is CONTINUED.

It is so ordered.

Dated: May , 2021

Hon. Jon R. Takasugi Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative. If all parties to a motion submit, the court will adopt this tentative as the final order. If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar.

Due to Covid-19, the court is strongly discouraging in-person appearances. Parties, counsel, and court reporters present are subject to temperature checks and health inquiries, and will be denied entry if admission could create a public health risk. The court encourages the parties wishing to argue to appear via L.A. Court Connect. For more information, please contact the court clerk at (213) 633-0517. Your understanding during these difficult times is appreciated.

Case Number: BC648246    Hearing Date: March 18, 2021    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

JOY SLAGEL

vs.

LIBERTY MUTUAL INSURANCE COMPANY, ARIAM ALEMSEGHED, and LEANN LO

Defendants.

Case No.: BC648246

Hearing Date: March 18, 2021

Plaintiff’s motion to tax costs is GRANTED in part, DENIED in part:

The Court grants Plaintiff’s motion to tax as to:

- No. 1: from $1,223.51 to $1,027.14

- No. 4: from $22,549.18 to $9,003.59.

-No. 16: in its entirety

The Court denies Plaintiff’s motion to tax as to:

- No. 5

- No. 8

- No. 9

On January 26, 2017, Plaintiff Joy Slagel (Plaintiff) filed suit against Liberty Mutual Insurance Company (LMIC), Ariam Alemseghed, and Leann Lo, alleging: (1) age discrimination; (2) age harassment; (3) retaliation in violation of FEHA; (3) discrimination on the basis of taking disability leave in violation of FEHA; (5) retaliation for taking disability leave in violation of FEHA; (6) failure to provide reasonable accommodation in violation of FEHA; (7) failure to engage in the interactive process in violation of FEHA; (8) breach of express oral contract not to terminate employment without good cause; (9) breach of implied in fact contract not to terminate employment without good cause; (1)) wrongful termination of employment in violation of public policy; (11) violation of Labor Code section 1102.5; and (12) intentional infliction of emotional distress (IIED).

On September 29, 2020, this Court granted Defendants’ motion for summary judgment. On December 15, 2020, the Court granted Defendant Leann Lo’s motion for sanctions against Plaintiff and her attorneys of record for violation of CCP section 128.7.

Now, Plaintiff moves to tax costs.

Legal Standard

Under Government Code section 12965, subdivision (b), the Court “…in its discretion, may award to the prevailing party, including the department, reasonable attorney’s fees and costs, including expert witness fees, except that, notwithstanding Section 998 of the Code of Civil Procedure, 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.”

Verification of the memorandum of costs by the prevailing party’s attorney establishes a prima facie showing that the claimed costs are proper.  (Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1267.) To overcome this prima facie showing, the objecting party must introduce evidence to support its claim that the costs are not reasonably necessary.  (Rappenecker v. Sea-Land Service, Inc. (1979) 93 Cal.App.3d 256, 266.)

“Allowable costs shall be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation.” (CCP § 1033.5(c)(2).) “Allowable costs shall be reasonable in amount.” (CCP § 1033.5(c)(3).)

Discussion

On 12/15/2020, this Court granted Defendant Lo’s motion for sanctions based on a finding that Plaintiff and her attorneys of record had violated CCP section 128.7. Defendant was asked to submit a Defendant-specific memorandum of costs.

Plaintiff now moves to tax the following costs:

· Item No. 1, for filing and motion fees in the amount of $1,223.51

· Item No. 4, for deposition costs in the amount of $22,549.18

· Item No. 5, for service of process totaling $818.82

· Item No. 8, for witness fees, totaling $2,000.00

· Item No. 9, for court-ordered transcripts totaling $302.13

· Item No. 16 for “other” fees totaling $8,426.20.

I. Item No. 1

Here, Plaintiff argues that Defendant should not recover costs for filing and motion fees in the amount of $1,223.51. Specifically, Plaintiff argues that Defendant has provided insufficient supporting documentation to substantiate these costs.

The Court was not impressed with the organization of Defendant’s exhibits. Moreover, the filing and motion fees sums listed in the MC-011 form, which are apparently corroborated by Attachment 1.g., do not add up to $1,233.51. While this Court calculated the listed fees as $791.75, Plaintiff only asks to tax the amount from $1,223.51 to $1,027.14.

Accordingly, the Court grants Plaintiff’s motion to tax with respect to Item No. 4 to $1,027.14.

II. Item No. 4

Here, Plaintiff argues that Defendant should not recover $22,549.28 in deposition costs because she has not provided adequate evidence to substantiate these claims.

Again, the Court was unimpressed with the organization of Defendant’s exhibits. This was Defendant’s second opportunity to file a memorandum of costs, and counsel appears to be employing a strategy of throwing out a flurry of documentation in hopes that the Court will simply rubber stamp it.

Rather than collecting the deposition invoices into organized, item specific exhibits for this Court’s review, Defendant’s counsel subsumed its invoices in a 500+ page “catch-all” exhibit which included costs for housekeeping tips, coffee, bellhop services, and in-flight purchases. (See Attachment 1.h.) Certain receipts were not even legible, and the order of the documents was entirely random.

In opposition, Defendant broke down the deposition costs as: (1) travel related costs for Plaintiff’s deposition in the amount $13,545.59; and (2) the transcription of Plaintiff’s deposition in the amount of $9,003.59.

It is clear to the Court that the transcription of depositions were necessary to litigation, and thus the $9,003.59 in transcript costs is recoverable. However, the Court finds that the $13,545.59 in travel costs was “merely convenient or beneficial,” rather than necessary to the conduct of the litigation. (CCP § 1033.5(c)(2).) While travel expenses to attend depositions are ordinarily recoverable, Defendant’s counsel’s failure to present its invoices in an organized, reviewable manner prevents this Court from determining which travel expenses were actually necessary. Housekeeping tips, coffee, in-flight purchases, and bellhop services are not expenses necessarily incurred to attend depositions. Uber receipts are attached with no context that would allow this Court to confirm that the Uber was to travel to, or from, a deposition. Given Defendant’s dump of invoices, the Court was not able to discern reasonably incurred costs from unreasonably incurred costs, and thus the Court taxes Defendant’s travel costs entirely.

Based on the foregoing, the Court grants Plaintiff’s motion to tax costs with respect to deposition costs from $22,549.28 to $9,003.59.

III. Item No.5

Here, Plaintiff argues that Defendant should not recover $818.82 for service of process costs. Specifically, Plaintiff argues that Defendant has provided insufficient supporting documentation to substantiate these costs.

While the Court was extremely underwhelmed with the quality of Defendant’s cost memorandum, the Court is persuaded these costs were reasonably necessary to litigation.

Plaintiff’s motion to tax costs is denied as to Item No. 5.

IV. Item No. 8

Here, Plaintiff argues that Defendant should not recover $2,000 for witness fees. Specifically, Plaintiff argues that Defendant has provided insufficient documentation to substantiate these costs.

The Court is persuaded these costs were reasonably necessary to litigation.

Plaintiff’s motion to tax costs is denied as to Item No 8.

V. Item No. 9

Here, Plaintiff argues that Defendant should not recover $302.13 for court-ordered transcripts. Specifically, Plaintiff argues that Defendant has provided insufficient supporting documentation to substantiate these costs.

The Court is persuaded that these costs were reasonably necessary to litigation, and Plaintiff’s motion to tax costs is denied as to Item No. 9.

VI. Item No. 16

Here, Plaintiff argues that Defendant should not recover $8,426.20 in “other” costs. Specifically, Plaintiff argues that Defendant has provided insufficient supporting documentation to substantiate these costs.

Again, rather than collecting the “other” costs into a single, organized exhibit for this Court’s review, Defendant subsumed the invoices in a 500+ page “catch-all” exhibit.

The Court is not persuaded that these costs were reasonably necessary to the conduct of the litigation, rather than merely convenient or beneficial to its preparation. (CCP § 1033.5(c)(2).) Indeed, the Court struggles to understand what, exactly, is embraced in this umbrella category of “other” costs, and Defendant’s opposition failed to clarify this issue for the Court.

Accordingly, Plaintiff’s motion to tax costs is granted as to Item No. 16.

It is so ordered.

Dated: March , 2021

Hon. Jon R. Takasugi Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative. If all parties to a motion submit, the court will adopt this tentative as the final order. If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar.

Due to Covid-19, the court is strongly discouraging in-person appearances. Parties, counsel, and court reporters present are subject to temperature checks and health inquiries, and will be denied entry if admission could create a public health risk. The court encourages the parties wishing to argue to appear via L.A. Court Connect. For more information, please contact the court clerk at (213) 633-0517. Your understanding during these difficult times is appreciated.

Case Number: BC648246    Hearing Date: December 02, 2020    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

JOY SLAGEL

vs.

LIBERTY MUTUAL INSURANCE COMPANY, ARIAM ALEMSEGHED, and LEANN LO

Defendants.

Case No.: BC648246

Hearing Date: December 2, 2020

Defendant Lo’s motion for sanctions is denied.

On January 26, 2017, Plaintiff Joy Slagel (Plaintiff) filed suit against Liberty Mutual Insurance Company (LMIC), Ariam Alemseghed, and Leann Lo, alleging: (1) age discrimination; (2) age harassment; (3) retaliation in violation of FEHA; (3) discrimination on the basis of taking disability leave in violation of FEHA; (5) retaliation for taking disability leave in violation of FEHA; (6) failure to provide reasonable accommodation in violation of FEHA; (7) failure to engage in the interactive process in violation of FEHA; (8) breach of express oral contract not to terminate employment without good cause; (9) breach of implied in fact contract not to terminate employment without good cause; (1)) wrongful termination of employment in violation of public policy; (11) violation of Labor Code section 1102.5; and (12) intentional infliction of emotional distress (IIED).

On July 30, 2020, this Court granted Defendants’ motion for summary judgment.

Now, Defendant Leann Lo moves for sanctions against Plaintiff and her attorneys of record for violation of CCP section 128.7.

Legal Standard

Code of Civil Procedure section 128.7 requires that at least one attorney, or the party if he/she is not represented by an attorney, sign all pleadings, petitions, notices of motions and other similar papers. (§ 128.7, subd. (a).) The signature indicates that the attorney, or party, certifies that the paper is not being presented for an improper purpose; the legal contentions are warranted by law or non-frivolous argument for extension, modification or reversal of existing law; the allegations and factual contentions have evidentiary support or are likely to have such support after a reasonable opportunity to further investigate; and the denials of factual contentions are warranted by the evidence.  (§ 128.7, subd. (b).)  If the court determines, after notice or a reasonable opportunity to respond, that the attorney or party improperly certified the document, it may impose an appropriate sanction upon the attorney or part responsible for the violation. (§ 128.7, subd. (c).)

Code of Civil Procedure section 128.5 provides for sanctions against a party who is guilty of “actions or tactics, made in bad faith, that are frivolous or solely intended to cause unnecessary delay.” (Code Civ. Proc., § 128.5, subd. (a).) “‘Actions or tactics’ include, but are not limited to, the making or opposing of motions or the filing and service of a complaint, cross-complaint, answer, or other responsive pleading.” (Id.subd. (b).) This section authorizes trial courts to order payment of reasonable expenses, including attorney fees, incurred as a result of a litigation opponent’s tactics or actions not based on good faith which are frivolous or which cause unnecessary delay. (Olmstead v. Arthur J. Gallagher & Co. (2004) 32 Cal.4th 804, 809.)

Procedural Requirements

The section 128.7 sanctions mechanism contains a 21-day safe harbor provision. Notice of a section 128.7 motion for sanctions “shall be served as provided in¿section 1010, but shall not be filed with or presented to the court unless, within 21 days after service of the motion, or any other period as the court may prescribe, the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected.” Section 1010, in turn, provides that any notice of a motion “must state when . . . it will be made.” (Code Civ. Proc., § 1010.) Here, the noticed motion that Defendant Lo sent pursuant to section 128.7 complies with these procedural requirements.

Discussion

Defendant Lo argues that Plaintiff and her attorneys have violated section 128.7 in three ways: (1) by making legal contentions not warranted by existing law or by a nonfrivolous argument for extension of existing law; (2) by making factual contentions that did not have evidentiary support and were not likely to have evidentiary support; and (3) by filing a complaint for improper purposes.

On a motion for sanctions, the moving party must prove that the other party’s allegations were truly baseless or frivolous. That is a very high standard. An objective standard is used when determining if section 128.5 sanctions are appropriate; that is, a motion is totally and completely without merit only where¿any reasonable attorney¿would agree that the action is totally and completely without merit. (Finnie v. Town of Tiburon¿(1988) 199 Cal.App.3d 1, 12; San Diegans for Open Government v. City of San Diego (2016) 247 Cal.App.4th 1306, 1319.) 

Here, as noted, the Court has already granted summary judgment as to all claims against Defendant Lo and her co-Defendants. As such, the question before the Court is whether Plaintiff’s claims were truly meritless or whether Plaintiff merely failed to satisfy her burden of proof as to those claims. Given the high standard at play here, the Court concludes that it was the latter.

The Court acknowledges that the claims against Defendant Lo were quite weak. This is especially true given that Defendant Lo did not participate in the decision to terminate Plaintiff, and given that much of the conduct alleged of her fell squarely into the category of personnel management decisions. (See 7/30/2020 MSJ Ruling.) However, Plaintiff did submit evidence suggesting that: (1) Defendant Lo falsely accused Plaintiff of speaking negatively about the company (PSF No. 65); (2) that Plaintiff had previously complained to Bennet that she believed that Defendant Lo’s reaction to the social media report incident was due to her age and long tenure as an employee (PSF No. 66.); and (3) Defendant Lo singled out employees over the age of 40 with an unreasonably heavy workload to try to drive them out of the company. (See Opp., 16: 4-7.) While this evidence ultimately failed to raise a triable issue of fact at summary judgment, it still suggests some basis for the claims. In other words, because Plaintiff was able to put some forth some degree of evidence for her claims against Defendant Lo, it is not possible to say that action was “totally and completely without merit.” (Finnie, supra, 199 Cal.App.3d at p. 12.)

Given the very high standard of section 128.5 sanctions motions, the Court is unable to conclude that Plaintiff’s claim was totally and completely without merit as to Defendant Lo. (Ibid.) Accordingly, Defendant Lo’s motion for sanctions is denied.

It is so ordered.

Dated: , 2020

Hon. Jon R. Takasugi Judge of the Superior Court

 

 

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative. If all parties to a motion submit, the court will adopt this tentative as the final order. If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar.

Due to Covid-19, the court is strongly discouraging in-person appearances. Parties, counsel, and court reporters present are subject to temperature checks and health inquiries, and will be denied entry if admission could create a public health risk. The court encourages the parties wishing to argue to appear via L.A. Court Connect. For more information, please contact the court clerk at (213) 633-0517. Your understanding during these difficult times is appreciated.

Case Number: BC648246    Hearing Date: September 29, 2020    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

JOY SLAGEL

vs.

LIBERTY MUTUAL INSURANCE COMPANY, ARIAM ALEMSEGHED, and LEANN LO

Defendants.

Case No.: BC648246

Hearing Date: September 29, 2020

Defendants’ motions for summary judgment are GRANTED.

On January 26, 2017, Plaintiff Joy Slagel (Plaintiff) filed suit against Liberty Mutual Insurance Company, Ariam Alemseghed, and Leann Lo, alleging: (1) age discrimination; (2) age harassment; (3) retaliation in violation of FEHA; (3) discrimination on the basis of taking disability leave in violation of FEHA; (5) retaliation for taking disability leave in violation of FEHA; (6) failure to provide reasonable accommodation in violation of FEHA; (7) failure to engage in the interactive process in violation of FEHA; (8) breach of express oral contract not to terminate employment without good cause; (9) breach of implied in fact contract not to terminate employment without good cause; (1)) wrongful termination of employment in violation of public policy; (11) violation of Labor Code section 1102.5; and (12) intentional infliction of emotional distress (IIED).

Liberty Mutual Insurance Company (LMIC) moves for summary judgment of Plaintiff’s complaint. Defendants Ariam Alemseghed (Alemseghed) and Leann Lo (Lo) move separately for summary judgment of Plaintiff’s complaint. Because Defendants submitted substantially similar moving papers, and are represented by identical counsel, the Court has consolidated its analysis into a single ruling.

Legal Standard

Code of Civil Procedure section 437c, subdivision (a) provides that a “party may move for summary judgment in any action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding.” The motion shall be granted if there is no triable issue as to any material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) Subdivision (p)(2) of the same section provides that where a defendant presents evidence showing one or more elements of a cause of action cannot be established, then the burden shifts to plaintiff to show the existence of a triable issue of material fact. (See Blue Shield of California Life & Health Insurance Co. v. Superior Court (2011) 192 Cal.App.4th 727, 732.) A party is also permitted to move for summary adjudication of a particular issue, which can be granted “only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Code Civ. Proc., § 437c, subd. (f)(1).)

The moving party’s burden on summary judgment “is more properly one of persuasion rather than proof, since he must persuade the court that there is no material fact for a reasonable trier of fact to find, and not to prove any such fact to the satisfaction of the court itself as though it were sitting as the trier of fact.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 fn.11, original italics.)

Evidentiary Objections

Plaintiff’s evidentiary objections are overruled.

Discussion

I. Age Discrimination (Against LMIC alone)

LMIC argues Plaintiff has failed to establish a prima facie case for age discrimination because she cannot show she was performing her position competently. LMIC also argues that it had a legitimate, non-discriminatory reason for terminating her.

To establish a claim for discrimination under FEHA must provide evidence 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 v. Bechtel Natl. Inc. (2000) 24 Cal.4th 317, 355.)

Courts apply the burden shifting analysis set forth in McDonnell Douglas v. Green (1973) 411 U.S. 792, to analyze retaliation claims brought under both Section 1102.5 and FEHA. (Loggins v. Kaiser Permanente Internat. (2007) 151 Cal.App.4th 1102, 1109 (Loggins) [FEHA]; Sillah v. Command International Security Services (N.D.Cal. 2015) 154 F.Supp.3d 891, 916 [Section 1102.5].)

Under the McDonnell Douglas framework, the employer must carry the burden of showing the employee's action has no merit. (Code Civ. Proc., § 437c, subd. (p)(2).) It may do so with evidence that either: (1) indicates “that one or more of plaintiff’s prima facie elements is lacking,” or (2) shows some legitimate, nondiscriminatory reason for the action taken against the employee. (Caldwell v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 203.)

If defendant meets its burden, the burden then shifts to the plaintiff to produce substantial evidence that the employer’s showing was untrue or pretextual by raising at least an inference of discrimination or retaliation. (Hersant v. California Department of Social Services (1997) 57 Cal.App.4th 997, 1004-1005.) “In short, by applying McDonnell Douglas’s shifting burdens of production in the context of a motion for summary judgment, ‘the judge [will] determine whether the litigants have created an issue of fact to be decided by the jury.’ [Citation.]” (Caldwell, supra, 41 Cal.App.4th at p. 203.)

LMIC submitted evidence that Plaintiff was fired for misconduct, including falsifying records. Specifically LMIC submitted evidence showing the following:

· On August 27, 2015, Plaintiff attended a Litigation Review with client Disney, wherein Disney requested the Plaintiff order a Social Media Report on a workers-compensation complainant. (SSF No. 18)

· Despite Disney request, and Plaintiff’s acknowledgement of the request, Plaintiff failed to order the Social Media Report on that date. (SSF No. 21.)

· On March 24, 2016, Plaintiff attended a second Litigation Review with Disney. During the meeting, Disney followed up with Plaintiff about its request for a Social Media Report back in August 2015. (SSF No. 23.)

· Despite having never placed a request for the Social Media Report, Plaintiff told Disney that the Social Media Report had been previously ordered, but had come back “negative.” Plaintiff also told Disney that she was not able to locate the Social Media Report at that time, but that she would request another copy. (SSF Nos. 24-25.)

· That same day, just 30 minutes after the conclusion of the meeting, Plaintiff submitted a request for the Social Media Report for the first time. She posted the request under the category of “Medical,” rather than “Investigation.” (SSF Nos. 27.) Plaintiff later admitted that she did this so that Disney would not be able to see that she was only just putting in the request. (SSF No. 36.)

· The next day, March 25, 2016, Disney emailed Plaintiff to inquire about whether she had been able to locate the Social Media Report. Plaintiff told Disney that the “Report had been completed, but there were no findings." (SSF No. 29.)

· On April 8, 2016, Disney sent an email to Melanie Krikorian expressing its concerns that Plaintiff had tried to conceal the fact that she did not request the Social Media Report back in August 2015 as requested. (SSF No. 30.) This email was forwarded to Defendant Lo, who then forwarded the email to Virginia Bennett (Bennett), then Principal Human Resources (HR) Generalist. (SSF No. 31.)

· Bennett determined further investigation was needed. During Bennett’s interview with Plaintiff, Plaintiff denied that she only first ordered the Social Media Report after the March 2016 meeting. Plaintiff instead claimed that her former team manager, Ballard, had told her that he had conducted a “social media check” back in March 2015, using a google search. (SSF No. 34.)

· However, during Bennett’s review of relevant file notes, Bennett discovered that none of the notes showed that Ballard had ordered a Social Media Report for the subject workers compensation Claimant. (SSF No. 38.)

· Based on these findings, Bennett recommended that LMIC terminate Plaintiff for misconduct, including the falsification of records. (SSF No. 41.)

· Gabriel Williams, who has never met Plaintiff, reviewed the information provided by Bennett. After completing this review, Williams determined that Plaintiff had falsified records and similarly determined Plaintiff should be terminated. Before communicating this decision, Williams reviewed summaries of similar cases and determined that LMIC had terminated employees in the past for similar conduct. (SSF Nos. 44, 47.)

LMIC has made an adequate showing that Plaintiff was terminated for attempting to conceal her failure to order a Social Media Report. In light of the foregoing, LMIC has met its burden of showing that it had a legitimate, non-retaliatory reason for terminating Plaintiffs’ employment. The burden shifts to Plaintiffs to show that this reason was a pretext – i.e., that Plaintiffs’ termination was at least in part motivated by age discrimination.

Plaintiffs may demonstrate pretext by “demonstrat[ing] such weaknesses, implausibilities, inconsistencies, or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable factfinder could rationally find them ‘unworthy of credence,’ . . . and hence infer ‘that the employer did not act for the [asserted] non-discriminatory reasons.’ [Citation.]” (Moore, supra, 248 Cal.App.4th at pp. 235-236.) Plaintiffs may also show pretext by making their own evidentiary showing that Defendant had a retaliatory motive in terminating their employment. “The central issue is and should remain whether the evidence as a whole supports a reasoned inference that the challenged action was the product of discriminatory or retaliatory animus. . . . The employer [is entitled] to summary judgment only when the employee’s showing . . . is too weak to sustain a reasoned inference in the employee’s favor.” (Light v. Department of Parks and Recreation (2017) 14 Cal.App.5th 75, 94.)

Here, Plaintiff does not submit any evidence to refute LMIC’s evidence that she failed to order a Social Media Report. Plaintiff submitted evidence to show Ballard had previously performed an informal “social media check.” (SDF No. 16.) However, none of this evidence refutes LMIC’s evidence that Plaintiff informed Disney that a report had been generated, but that she couldn’t locate it, and then later put in a report request under “Medical” to conceal from Disney that the report had only just been requested. Plaintiff submitted evidence to show that she previously received “glowing reviews” of her performance, and that Alemseghed had a bias towards employees over 40 whom he would either fire or force to retire.

Plaintiff’s evidence can be characterized as follows:

· Plaintiff received “glowing” reviews during her 30-year employment. (PSF 1-7)

· Alemseghed held a bias towards employees over 40. He exhibited this bias by subjecting employees over 40 to unreasonable workloads, “threatened” employee Anthony Beliso to either retire or be terminated, and looked for mistakes to justify terminating employees over 40. (PSF Nos. 8, 23-25, 110-11, 113)

· In 2013, three years before the Social Media Report incident, Alemseghed scolded Plaintiff for performing too well on the Disney account, exclaiming, “You set the bar too high, and now we have to jump through hoops because of you!” (PSF 34-35.)

· Plaintiff submitted a written complaint to LMIC’s Vice President and Chief Claim Officer Glen Shapiro (Shapiro) to complaint that Plaintiff “is a 20-year employee, and that Alemseghed continued to treat herself, as well as several other long-term employees, in a manner that lacked dignity and respect.” (PSF No. 46.)

· Polk visited LMIC’s Glendale Location where Plaintiff was located to address Plaintiff’s concerns about Alemseghed. During this meeting, Plaintiff complained that Alemseghed “rarely gives older employees ‘kudos,’ while often giving them to younger employees,” and gives “swift and severe reprimands to older employees.” (PSF Nos. 54, 55.)

· Plaintiff was falsely accused by Lo of speaking negatively about the company. (PSF No. 65.)

· Plaintiff complained to Bennett that she felt Lo and Alemseghed were overreacting to the Social Media Report because “she is a 30-year employee” and believed she was being “set up.”

Together, this evidence fails to demonstrate “weaknesses, implausibilities, inconsistencies, or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable factfinder could rationally find them ‘unworthy of credence.’” (Moore, supra, 248 Cal.App.4th at pp. 235-236.) Plaintiff has not submitted any evidence to refute LMIC’s evidence that she failed to order a requested Social Media Report, told Disney that it had been ordered when it had not, and attempted to conceal her error by filing the newly ordered Report under “Medical” rather than “Investigation.” While Plaintiff may believe this mistake to be “trivial,” LMIC’s burden was not to show that its decision to terminate was wise, but that it was not based on a discriminatory motive.

Crucially, Plaintiff has only submitted evidence to suggest a discriminatory motive by Alemseghed. Plaintiff has not submitted any evidence to show Bennett or Williams, the two individuals responsible for her termination, possessed a discriminatory motive. Plaintiff’s assertion that because Bennett met with Alemseghed and Lo about the social media incident and “devised a plan to rid themselves of [Plaintiff]” is entirely unsupported speculation [“conclusory allegations, improbable inferences, and unsupported speculation” are insufficient to raise a triable issue. (Nelson v. United Technologies (1999) 74 Cal.App.4th 596, 614). Moreover, Plaintiff’s argument that she was being “set up” to be fired for the social media incident as a cover-up for age discrimination ignores the fact that Plaintiff herself does not dispute that she did not request a Social Media Report, and attempted to conceal her request when she eventually did. That Ballard performed an informal social media check does not explain why Plaintiff would tell Disney that a report had been generated, but another copy would be requested because she was having trouble locating it. Plaintiff has not submitted any evidence to show she ever believed there was an actual Social Media Report generated, or misplaced. More importantly, Plaintiff simply has not submitted evidence to show how Alemeseghed’s age bias caused her termination when Alemegsehed was not responsible for her termination, and when the proffered reason for Plaintiff’s termination, i.e., the social media report incident, actually did occur.

Based on the foregoing, Plaintiff has failed to raise a triable issue of material fact as to whether LMIC’s proffered reason for her termination was pretextual.

II. Age Harassment (against all Defendants)

Defendants LMIC, Alemseghed, and Lo argue that Plaintiff cannot state a claim for age harassment because the evidence cannot show conduct that was severe and pervasive.

A prima facie case for harassment in violation of FEHA requires the following elements: (1) plaintiff belongs to a protected group; (2) plaintiff was subjected to unwelcome harassment; (3) the harassment complained of was based on protected status; (4) the harassment complained of was sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment; and (5) respondeat superior. (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 608.) Whether the conduct complained of is sufficiently pervasive must be determined “from the totality of the circumstances.” (Fisher v. San Pedro Peninsula Hospital, supra, 214 Cal.App.3d 590, 609.) “The plaintiff must prove that the defendant’s conduct would have interfered with a reasonable employee's work performance and would have seriously affected the psychological well-being of a reasonable employee and that she was actually offended.” (Id. at pp. 609-610.)

Here, Defendant submitted the following evidence:

· While Plaintiff claims that various employees over age 40 were “forced to resign” or were “fired,” this allegedly took place in 2012—four years before Plaintiff was terminated in 2016. Moreover, Plaintiff testified that she had no personal knowledge of the reasons for the termination of any of those employees, nor was Plaintiff aware of the identities of the decisionmakers in those terminations. (SSF Nos. 56-57.)

· Plaintiff’s allegations that Alemseghed “went around the office in the morning and greeted every employee except Plaintiff” and “singled [her] out” during office-wide meetings when Alemseghed asked Plaintiff work-related questions, cannot constitute severe and pervasive conduct. (SSF Nos. 62, 64.)

· Plaintiff has not submitted any evidence to link Alemseghed’s conduct to her age.

Defendant’s evidence is adequate to support a reasonable inference that Plaintiff was not subjected to unwanted harassment on the basis of her age. In light of the foregoing, Defendant has met its burden on summary adjudication. Accordingly, the burden shifts to Plaintiff to disclose a triable issue of material fact.

Harassment typically does not include conduct necessary for management of the employer’s business or performance of the supervisory employee’s job. (Reno v. Baird (1998) 18 Cal.4th 40, 647.) Rather, “harassment consists of conduct outside the scope of necessary job performance, conduct presumably engaged in for personal gratification for meanness or bigotry, or for other personal motives.” (Ibid.) However, “[s]ome official employment actions done in furtherance of a supervisor’s managerial role can also have a secondary effect of communicating a hostile message. This occurs when the actions establish a widespread pattern of bias.” (Roby v. McKesson, supra, 47 Cal.4th at p. 709.) Accordingly, commonly necessary personnel management actions can support a harassment action, “so long as that evidence [of biased personnel management actions] is relevant to prove the communication of a hostile message.” (Ibid.) To determine whether a work environment is sufficiently hostile, the court looks at all the circumstances including the “frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.” (Harris v. Forklift Systems, Inc. (1993) 114 S.Ct. 367, 369.)

Here, Plaintiff’s harassment cause of action is based on allegations that “Alemseghed and Lo abused their power as supervisors, subjecting [Plaintiff] and other employees over the age of 40 to an unreasonably heavy workload to be malicious and not as a result of regular business needs, harsher performance based standards than younger employees, and more stringent repercussions for any issues that arose in relation to their counterparts under the age of 40.” (Opp., 16:4-7)

This conduct which is based on Alemeghed’s and Lo’s power “as supervisors” regarding workload and performance standards falls squarely into the category of personnel management decisions. (Reno, supra, 18 Cal.4th 40, 647.) Accordingly, Plaintiff’s evidence fails to disclose a triable issue of fact as to her harassment cause of action.

III. Retaliation for Complaints of Discrimination (Against LMIC Alone)

LMIC argues that Plaintiff has not submitted any evidence that her termination was causally linked to protected activity.

Retaliation claims are analyzed according to the same framework as discrimination claims: (1) the plaintiff [must] establish a prima facie case of retaliation, (2) the defendant [must then] articulate a legitimate nondiscriminatory, nonretaliatory explanation for its acts, (3) and the plaintiff [must then] show that the defendant’s proffered explanation is merely a pretext for the illegal termination. (Flait v. Noth Amer. Watch Corp. (1992) 3 Cal.App.4th 467, 476.

To establish a prima facie case of retaliation under FEHA, Plaintiff must show (1) 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. (Jones v. Department of Corrections & Rehabilitation (2007) 152 Cal.App.4th 1367, 1380.)

As set forth above, LMIC has submitted evidence that supports a reasonable inference that Plaintiff was terminated for misconduct, including the falsification of records. In light of the foregoing, Defendant has met its burden on summary adjudication. Accordingly, the burden shifts to Plaintiff to disclose a triable issue of material fact.

Here, Plaintiff submitted evidence that she filed a complaint to Glenn Shapiro, Chief Claims Officer, about Alemseghed’s treatment of her, and previously submitted complaints to Ballard about Alemseghed before his resignation in 2015. However, Plaintiff does not dispute that the complaint submitted to Glenn Shapiro was filed anonymously. While Plaintiff argues that she “was one of two individuals who fit the description of the complainant who submitted the complaint,” this does not make up for the fact that Plaintiff has not submitted evidence to show that anyone, much less the decisionmakers in her termination, had actual knowledge that she had filed a complaint against Alemseghed. (DF No. 83.) Moreover, this cause of action suffers from the same defect identified in others—Plaintiff’s evidence does not establish any illegitimate motive in the individuals who were the decisionmakers in her termination.

Based on the foregoing, Plaintiff’s evidence fails to support a reasonable inference that Plaintiff was terminated in retaliation for filing complaints of discrimination.

IV. Discrimination on the Basis of Taking Disability Leave (Against LMIC Alone)

LMIC argues that Plaintiff has not submitted any evidence that her termination was causally linked to her taking disability leave.

California’s Fair Employment and Housing Act (FEHA) prohibits employers from discriminating against employees on the basis of disability. (Govt. Code, § 12940.) In order to establish a prima facie case of FEHA disability discrimination, the employee-plaintiff must prove: (1) she suffered from a disability; (2) with or without reasonable accommodation, she could perform the essential functions of the employment position she held or desired; and (3) that she was subjected to an adverse employment action because of her disability. (Jensen v. Wells Fargo Bank (2000) 85 Cal. App. 4th 245, 254.) 

As set forth above, LMIC has submitted evidence that supports a reasonable inference that Plaintiff was terminated for misconduct, including the falsification of records. In light of the foregoing, Defendant has met its burden on summary adjudication. Accordingly, the burden shifts to Plaintiff to disclose a triable issue of material fact.

As evidence of pretext, Plaintiff has submitted evidence that she was terminated “minutes after returning from medical leave.” (PSF 97-102). However, “[T]emporal proximity . . . does not, without more, suffice . . . to satisfy the employee’s burden to show a triable issue of fact on whether the employer’s articulated reason was untrue or pretextual.” (Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 868.) Other than temporal proximity, Plaintiff has not presented any other evidence that there is a causal connection between her taking medical leave and LMIC’s decision to terminate her employment. Plaintiff has not submitted any evidence that the actual decisionmakers in her termination, Bennett and Williams, held any discriminatory motive in her termination.

Plaintiff’s evidence fails to disclose the existence of triable issue of material fact as to her discrimination on the basis of taking disability leave cause of action.

V. Retaliation for Taking Disability Leave (Against LMIC Alone)

LMIC argues that Plaintiff has not submitted any evidence that her termination was causally linked to protected activity.

Retaliation claims are analyzed according to the same framework as discrimination claims: (1) the plaintiff [must] establish a prima facie case of retaliation, (2) the defendant [must then] articulate a legitimate nondiscriminatory explanation for its acts, (3) and the plaintiff [must then] show that the defendant’s proffered explanation is merely a pretext for the illegal termination. (Flait v. Noth Amer. Watch Corp. (1992) 3 Cal.App.4th 467, 476.

To establish a prima facie case of retaliation under FEHA, Plaintiff must show (1) 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. (Jones v. Department of Corrections & Rehabilitation (2007) 152 Cal.App.4th 1367, 1380.)

Here, as previously set forth, LMIC has presented ample evidence that it had a legitimate, non-discriminatory, non-retaliatory reason for terminating Plaintiff’s employment.

As evidence of pretext, Plaintiff has submitted evidence that she was terminated “minutes after returning from medical leave,” and had complained about age discrimination before she left. (PSF 97-102). However, “[T]emporal proximity . . . does not, without more, suffice . . . to satisfy the employee’s burden to show a triable issue of fact on whether the employer’s articulated reason was untrue or pretextual.” (Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 868.) Other than temporal proximity, Plaintiff has not presented any other evidence that there is a causal connection between her taking medical leave and LMIC’s decision to terminate her employment. Plaintiff has not submitted any evidence that the actual decisionmakers in her termination, Bennett and Williams, held any retaliatory motive in her termination.

Plaintiff’s evidence fails to disclose the existence of triable issue of material fact as to her retaliation for taking disability leave cause of action.

VI. Failure to Accommodate (Against LMIC Alone)

The elements of a failure to accommodate claim are (1) the plaintiff has a disability under the FEHA, (2) the plaintiff is qualified to perform the essential functions of the position, and (3) the employer failed to reasonably accommodate the plaintiff's disability. (Wilson v. County of Orange, supra, 169 Cal.App.4th at p. 1192.)

“Two principles underlie a cause of action for failure to provide a reasonable accommodation. First, the employee must request an accommodation. [Citation.] Second, the parties must engage in an interactive process regarding the requested accommodation and, if the process fails, responsibility for the failure rests with the party who failed to participate in good faith. [Citation.]” (Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34, 54.)

LMIC submitted undisputed evidence that it approved every request from Plaintiff for medical leave without issue or concern. (UF No. 55)

This evidence is sufficient to support a reasonable inference that LMIC did not fail to accommodate Plaintiff. Accordingly, the burden shifts to Plaintiff to disclose a triable issue of fact.

Here, Plaintiff does not dispute that every request she made for medical leave was approved. (UF No. 55.) Instead, Plaintiff appears to base her failure to accommodate cause of action on evidence that “rather than allow [Plaintiff] to remain on leave work [sic] and continue to heal, Defendants sent a courier to her house to confiscate her laptop which allowed her to work remotely. As a result, [Plaintiff[ was forced to return to her hostile work environment, rather than being provided the option to work from home.” (PSF 92). However, Plaintiff has not submitted any evidence that she ever requested an accommodation to work from home. Moreover, “the employee must identify a reasonable accommodation(Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 994.) Given that Plaintiff’s laptop confiscation was part of her termination, a reasonable accommodation to work from home was not available at that time.

Based on the foregoing, Plaintiff has failed to show a triable issue of material fact exists as to whether LMIC failed to grant her a reasonable accommodation.

VII. Failure to Engage in the Interactive Process (Against LMIC Alone)

In order to state a prima facie case of failure to engage in the interactive process a plaintiff must prove: (1) that plaintiff was an employee of defendant; (2) plaintiff had a disability that was known the defendant; (3) plaintiff requested that defendant make reasonable accommodation for her disability so that she would be able to perform the essential job requirements; (4) plaintiff was willing to participate in an interactive process to determine whether reasonable accommodation could be made so that she would be able to perform the essential job requirements; (5) defendant failed to participate in a timely good-faith interactive process with plaintiff to determine whether reasonable accommodation could be made; (6) plaintiff was harmed; and (7) defendant’s failure to engage in a good-faith interactive process was a substantial factor in causing harm. (CACI No. 2546.)

Here, as set forth above, Plaintiff does not dispute that she was never denied any request for leave by LMIC, and does not submit any evidence that she ever requested to work from home prior to her termination. Because Plaintiff failed to show a triable issue of material fact exists as to whether she made a reasonable accommodation request, Plaintiff has necessarily failed to state a prima facie for failure to engage in the interactive process.

VIII. Breach of Express Oral Contract and Implied-in Fact Contract (Against LMIC Alone)

LMIC argues that Plaintiff’s employment was at-will, and Plaintiff has failed to submit evidence

Labor Code § 2922 states "[a]n employment, having no specified term, may be terminated at the will of either party on notice of the other . . . ." At-will employment may be ended by either party at any time without cause, for any or no reason. (Guz, supra, 24 Ca1.4th at p. 336.) The burden is on the employee to prove the employment was not at will. Haycock v. Hughes Aircraft Co. (1994) 22 Cal.App.4th 1473, 1488-89. To determine whether such an agreement existed, courts consider several factors including: (1) the employer's personnel policies; (2) the employee's length of service; (3) the employer's actions or communications reflecting assurances of continued employment; and (4) industry practices. (Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654, 680-81.) While no one or combination of these factors necessarily constitutes an implied employment contract, Guz, supra, 24 Ca1.4th at p. 337, the terms stated in employee handbooks are a "central focus" in analyzing whether the employer agreed to limit its power to terminate at will. (Id. at 344.) When an employer promulgates a formal personnel handbook, it raises a "strong inference" the employer intended workers to rely on them. (Ibid.)

Here, LMIC submitted the following evidence:

· Plaintiff did not have an employment contract with LMIC. (SSF No. 1.)

· Plaintiff understood she could resign at any time, and on one promised her a job for any period. (SSF No. 2.)

· During her employment, Plaintiff acknowledge several versions of the Employee Handbook and the Code of Business Ethics and Conduct in which she agreed to adhere to company policies. (SSF No. 3.)

· The Ethics Code provided that a violation of policy could lead to termination. (SSF No. 5.)

As set forth above, LMIC has submitted evidence that supports a reasonable inference that Plaintiff was an at-will employee. In light of the foregoing, Defendant has met its burden on summary adjudication. Accordingly, the burden shifts to Plaintiff to disclose a triable issue of material fact.

Here, Plaintiff argues that parole evidence should be submitted to show that LMIC made an “express promise to [Plaintiff] that she would only be terminated for specific reasons, like on the job incidents.” (Opp., 18: 2-3.)

However, even assuming arguendo that an implied-in-fact contract was formed to only discharge Plaintiff for good cause, Plaintiff has not submitted evidence to establish breach. As discussed above, Plaintiff has failed to disclose a triable issue of material fact as to whether LMIC’s proffered reasons for terminating her were pretextual. Accordingly, Plaintiff has failed to disclose a triable issue of material fact as to whether she was terminated for an “on the job incident.”

IX. Wrongful Termination in Violation of Public Policy (Against LMIC Alone)

Here, Plaintiff has failed to meet her burden to disclose a triable issue of material fact as to her discrimination, harassment, and retaliation claims. Accordingly, Plaintiff has failed to disclose a triable issue of material fact as to her wrongful termination cause of action.

X. Violation of Labor Code section 1102.5 (Against LMIC Alone)

Defendant argues Plaintiffs cannot establish a prima facie case of retaliation under section 1102.5 because: (1) Plaintiffs cannot establish a causal connection between their alleged complaints and their termination; and (2) Plaintiff was terminated for legitimate, non-discriminatory reasons.

Labor Code section 1102.5 provides:

(b) An employer, or any person acting on behalf of the employer, shall not retaliate against an employee for disclosing information, or because the employer believes that the employee disclosed or may disclose information, to a government or law enforcement agency, to a person with authority over the employee or another employee who has the authority to investigate, discover, or correct the violation or noncompliance, or for providing information to, or testifying before, any public body conducting an investigation, hearing, or inquiry, if the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation, regardless of whether disclosing the information is part of the employee’s job duties.

Retaliation claims are analyzed according to the same framework as discrimination claims: (1) the plaintiff [must] establish a prima facie case of retaliation, (2) the defendant [must then] articulate a legitimate nondiscriminatory explanation for its acts, (3) and the plaintiff [must then] show that the defendant’s proffered explanation is merely a pretext for the illegal termination. (Flait v. Noth Amer. Watch Corp. (1992) 3 Cal.App.4th 467, 476.

As discussed above, LMIC has presented ample evidence that it had a legitimate, non-discriminatory, non-retaliatory reason for terminating Plaintiff’s employment, and Plaintiff’s evidentiary showing is “too weak” to convince the Court that the termination was for any reason other than Plaintiff’s misconduct regarding the social media report incident. (Light, supra, 14 Cal.App.5th at p. 94.)

XI. Intentional Infliction of Emotional Distress (IIED) (Against All Defendants)

Defendant argues that Plaintiff cannot establish an IIED claim because she has not submitted evidence of extreme or outrageous conduct, and because the claim is barred by the exclusive remedy provisions of the Workers Compensation Act.

The tort of intentional infliction of emotional distress is comprised of three elements: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff suffered severe or extreme emotional distress; and (3) the plaintiff’s injuries were actually and proximately caused by the defendant’s outrageous conduct. (Cochran v. Cochran (1998) 65 Cal.App.4th 488, 494.)

“For conduct to be outrageous, it “must be so extreme as to exceed all bounds of that usually tolerated by a civilized community. … [w]hether behavior is extreme and outrageous is a legal determination to be made by the court.” (Faunce v. Cate (2013) 222 Cal.App.4th 166, 171.)

Under the compensation bargain,  distress that arises in the course of employment is exactly the kind of distress that is compensable only through workers’ compensation. (Singh v. Southland Stone, U.S.A., Inc. (2010) 186 Cal.App.4th 338, 367.)  This is true even when the complained-of conduct was “manifestly fair or outrageous.” (Ibid.) “[W]hen the misconduct attributed to the employer is actions which are a normal part of the employment relationship, such as demotions, promotions, criticism of work practices, and frictions in negotiations as to grievances, an employee suffering emotional distress causing disability may not avoid the exclusive remedy provisions of the Labor Code by characterizing the employer's decisions as manifestly unfair, outrageous, har[]assment, or intended to cause emotional disturbance resulting in disability.” (Cole v. Fair Oaks Fire Protection Dist. (1987) 43 Cal.3d 148, 160.)  

In Singh, the employee’s supervisor insulted and physically grabbed the employee in connection with criticism of the employee’s work practices. (186 Cal.App.4th at p. 367.) The IIED claim was barred because such emotional distress was encompassed within the compensation bargain. (Ibid.

“When the misconduct attributed to the employer is actions which are a normal part of the employment relationship, such as demotions, promotions, criticism of work practices, and frictions in negotiations as to grievances, an employee suffering emotional distress causing disability may not avoid the exclusive remedy provisions of the Labor Code by characterizing the employer's decisions as manifestly unfair, outrageous, har[]assment, or intended to cause emotional disturbance resulting in disability.” (Cole v. Fair Oaks Fire Protection Dist. (1987) 43 Cal.3d 148, 160.)

Here, Plaintiff has failed to disclose a triable issue of material fact as to whether she was exposed to discriminatory, retaliatory, or harassing conduct. Moreover, Plaintiff’s supporting evidence is as follows:

· Alemseghed made comments such as “You just got lucky, it will never happen again,” and “I have higher expectations of her because of her tenure.” (PSF Nos. 44, 62.)

· Bennet made a comment that “maybe she resigned” in response to Plaintiff taking medical leave. (PSF No. 89.)

· Plaintiff was accused of speaking negatively about the company. (PSF No. 65.)

· Her laptop was confiscated while she was on leave. (PSF 92.)

The Court concludes these allegations, which concern comments about the workplace, Plaintiff’s work performance, and confiscation of a work computer arising out of her termination, fall within the “normal part of the employment relationship, such as demotions, promotions, criticism of work practices, and frictions in negotiations as to grievances.” (Cole, supra, 43 Cal.3d at p. 16.) Under the compensation bargain, distress that arises in the course of employment is exactly the kind of distress that is compensable only through workers’ compensation. (Singh v. Southland Stone, U.S.A., Inc. (2010) 186 Cal.App.4th 338, 367.)  This is true even when the complained-of conduct was “manifestly fair or outrageous.” (Ibid.)

XII. Prayer for Punitive Damages

Given Plaintiff’s failure to show a triable issue of material fact exists as to any cause of action, Plaintiff has necessarily failed to show a triable issue of material as to whether any Defendant engaged in fraudulent, oppressive, or malicious conduct such that Plaintiff is entitled to punitive damages.

Based on the foregoing, the Court grants Defendants’ motions for summary judgment.

It is so ordered.

Dated: , 2020

Hon. Jon R. Takasugi Judge of the Superior Court

 

 

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative. If all parties to a motion submit, the court will adopt this tentative as the final order. If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar.

Due to Covid-19, the court is strongly discouraging in-person appearances. Parties, counsel, and court reporters present are subject to temperature checks and health inquiries, and will be denied entry if admission could create a public health risk. The court encourages the parties wishing to argue to appear via L.A. Court Connect. For more information, please contact the court clerk at (213) 633-0517. Your understanding during these difficult times is appreciated.

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