This case was last updated from Los Angeles County Superior Courts on 06/27/2019 at 04:49:01 (UTC).

JUAN LOPEZ VS SIMON PROPERTY GROUP INC ET AL

Case Summary

On 01/23/2018 JUAN LOPEZ filed a Labor - Wrongful Termination lawsuit against SIMON PROPERTY GROUP INC. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are DALILA CORRAL LYONS and TERESA A. BEAUDET. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****1094

  • Filing Date:

    01/23/2018

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Labor - Wrongful Termination

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

DALILA CORRAL LYONS

TERESA A. BEAUDET

 

Party Details

Plaintiff and Petitioner

LOPEZ JUAN

Defendants and Respondents

MS MANAGEMENT ASSOCIATES INC.

LOBATO DEREK

JOVEL NELSON

FROST DONNA

SIMON PROPERTY GROUP INC.

DOES 1 TO 100

GARCIA ISAIAS

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

SHEGERIAN & ASSOCIATES INC.

SHEGERIAN CARNEY R.

Defendant and Respondent Attorneys

EPSTEIN BECKER & GREEN P.C.

MESSIGIAN AMY BETH

 

Court Documents

Minute Order

5/21/2018: Minute Order

Request for Judicial Notice

11/26/2018: Request for Judicial Notice

Request for Judicial Notice

11/26/2018: Request for Judicial Notice

Memorandum of Points & Authorities

11/26/2018: Memorandum of Points & Authorities

Memorandum of Points & Authorities

11/26/2018: Memorandum of Points & Authorities

Proof of Service by Mail

11/26/2018: Proof of Service by Mail

Unknown

11/26/2018: Unknown

Other -

11/26/2018: Other -

Declaration

11/26/2018: Declaration

Declaration

11/26/2018: Declaration

Minute Order

12/4/2018: Minute Order

Opposition

12/4/2018: Opposition

Notice of Case Reassignment/Vacate Hearings

1/16/2019: Notice of Case Reassignment/Vacate Hearings

Notice

1/22/2019: Notice

Notice

2/11/2019: Notice

Notice of Case Management Conference

2/13/2019: Notice of Case Management Conference

CASE MANAGEMENT STATEMENT

4/6/2018: CASE MANAGEMENT STATEMENT

PROOF OF SERVICE SUMMONS

2/20/2018: PROOF OF SERVICE SUMMONS

65 More Documents Available

 

Docket Entries

  • 06/20/2019
  • at 08:30 AM in Department 50, Teresa A. Beaudet, Presiding; Hearing on Motion for Summary Adjudication - Not Held - Vacated by Court

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  • 06/14/2019
  • Notice (OF CONTINUANCE OF HEARING ON MOTIONS FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION); Filed by Simon Property Group, Inc. (Defendant); MS Management Associates, Inc. (Defendant); Isaias Garcia (Defendant) et al.

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  • 05/09/2019
  • at 08:30 AM in Department 24; Trial Setting Conference - Held

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  • 05/09/2019
  • at 08:30 AM in Department 24; Case Management Conference - Held

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  • 05/09/2019
  • at 08:30 AM in Department 24; Order to Show Cause Re: (Sanctions for Plaintiff's Failure to Appear at the TSC) - Held

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  • 05/09/2019
  • Notice of Ruling; Filed by Simon Property Group, Inc. (Defendant); MS Management Associates, Inc. (Defendant); Isaias Garcia (Defendant) et al.

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  • 05/09/2019
  • Case Management Order; Filed by Clerk

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  • 05/09/2019
  • Minute Order ( (Case Management Conference; Trial Setting Conference; Order t...)); Filed by Clerk

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  • 04/19/2019
  • Case Management Statement; Filed by Simon Property Group, Inc. (Defendant); MS Management Associates, Inc. (Defendant); Isaias Garcia (Defendant) et al.

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  • 04/08/2019
  • Notice of Deposit - Jury; Filed by Juan Lopez (Plaintiff)

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90 More Docket Entries
  • 02/20/2018
  • Proof of Service (not Summons and Complaint); Filed by Juan Lopez (Plaintiff)

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  • 02/13/2018
  • Proof of Service (not Summons and Complaint); Filed by Juan Lopez (Plaintiff)

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  • 02/13/2018
  • Proof of Service (not Summons and Complaint); Filed by Juan Lopez (Plaintiff)

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  • 02/13/2018
  • PROOF OF SERVICE SUMMONS

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  • 02/13/2018
  • PROOF OF SERVICE OF SUMMONS

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  • 01/30/2018
  • NEW NOTICE OF CASE MANAGEMENT CONFERENCE

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  • 01/30/2018
  • Notice of Case Management Conference; Filed by Clerk

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  • 01/23/2018
  • Complaint; Filed by Juan Lopez (Plaintiff)

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  • 01/23/2018
  • SUMMONS

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  • 01/23/2018
  • PLAINTIFF JUAN LOPEZ S COMPLAINT FOR DAMAGES FOR: (1) DISCRIMINATION HARASSMENT, AND RETALIATION ON THE BASIS OF DISABILITY IN VIOLATION OF FEHA; ETC

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Tentative Rulings

Case Number: BC691094    Hearing Date: May 3, 2021    Dept: 24

Plaintiff Juan Lopez’s motion to strike Defendant Derek Lobato’s memorandum of costs is GRANTED.

On November 26, 2018, Plaintiff Juan Lopez filed an employment discrimination complaint against Defendants Simon Property Group Inc., MS Management Associates Inc., Isaias Garcia, Derek Lobato, Nelson Jovel, and Donna Frost. The Complaint states eleven causes of action for: 1) discrimination, harassment, and retaliation on the basis of disability; 2) discrimination, harassment and retaliation on the basis of age; 3) discrimination, harassment, and retaliation on the basis of taking FMLA leave; 4) failure to provide reasonable accommodation; 5) failure to engage in the interactive process; 6) failure to prevent discrimination, harassment, and retaliation; 7) breach of express oral contract not to terminate without good cause; 8) breach of implied-in-fact contract not to terminate employment without good cause; 9) negligent hiring supervision and retention; 10) wrongful termination of employment in violation of public policy; and 11) intentional infliction of emotional distress.

The Complaint alleges that Plaintiff was employed as a mall maintenance worker with Defendants since 2007. On July 7, 2016, Plaintiff suffered workplace injuries, including electrical burns, from a transformer. The next day, he was put on work restrictions which included no lifting over five pounds. Following this, and despite the written instructions by the company’s own doctor, Plaintiff’s supervisors forced him to continue his normal job duties. During this period, they also reprimanded him for poor work performance. Further, maintenance coworkers would call him slow and would make fun of him over the radio for needing help. Lopez took disability leave from July 16, 2016 to December 9, 2016 due his injuries. On December 9, 2016, Plaintiff brought a note allowing him to work with certain restrictions, including not lifting anything over fifty pounds. Lobato stated that the company could not take Plaintiff back unless the restrictions were lifted. Plaintiff later received a note without restrictions and returned to work.

On March 31, 2017, Lopez sustained another workplace injury when he grabbed a heavy tool when he was cleaning a clogged sewer line, straining his back. As a result, Lopez went on disability leave again on April 4, 2017. While on leave, Lopez received a letter of termination from Simon on June 21, 2017. The letter stated they terminated him because he allegedly failed to respond to inquiries regarding reasonable accommodations, and because of the length of his absence. Lopez received no communication from defendants regarding his job other than his termination letter.

On November 26, 2018, Defendants each separately moved for summary judgment. On February 1, 2021, the Court granted Frost and Lobato’s motion for summary judgment. The other motions for summary judgment were denied, with the court adjudicating the contract causes against the Employer Defendants. No judgment or dismissal has been entered for Lobato.

On February 23, 2021, Lobato filed a memorandum of costs, claiming $22,056.10 in costs.

On March 10, 2021, Plaintiff filed a motion to tax Lobato’s memorandum of costs. On , April 21, 2021, Defendants filed an opposition to the motion to tax costs. On April 26, 2021, Plaintiff filed a reply.

Legal Standard

In general, the “prevailing party” is entitled as a matter of right to recover costs for suit in any action or proceeding. (CCP § 1032(b); Santisas v. Goodin (1998) 17 Cal.4th 599, 606; Scott Co. Of Calif. v. Blount, Inc. (1999) 20 Cal.4th 1103, 1108.) “Prevailing party” includes the party with a net monetary recovery, a defendant in whose favor a dismissal is entered, a defendant where neither plaintiff nor defendant obtains any relief, and a defendant as against those plaintiffs who do not recover any relief against that defendant. (CCP § 1032 (a)(4).)

“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).) “If the items appearing in a cost bill appear to be proper charges, the burden is on the party seeking to tax costs to show that they were not reasonable or necessary.” (Ladas v. California State Auto. Assn. (1993) 19 Cal. App. 4th 761, 774.) On the other hand, if the items are properly objected to, they are put in issue and the burden of proof is on the party claiming them as costs. (Ibid.)

Discussion

First, the Court agrees that the instant cost memo was prematurely filed because no judgment has yet been entered in favor of Lobato. This is a predicate to a costs memo. (See CRC Rule 3.1700.) Thus, the costs memo should be stricken for this reason alone.

Accordingly, Plaintiff’s motion is GRANTED.

Moving party is ordered to give notice.

Case Number: BC691094    Hearing Date: February 01, 2021    Dept: 24

Defendants Simon Property Group Inc. and MS Management Associates Inc.’s motions for summary judgment are DENIED. Their motions for summary adjudication are GRANTED as to the seventh and eighth causes of action and DENIED as to the remainder.

Defendants Derek Lobato and Donna Frost’s motions for summary judgment are GRANTED.

Defendants Isaias Garcia and Nelson Jovel’s motions for summary judgment and adjudication are DENIED.

On November 26, 2018, Plaintiff Juan Lopez filed an employment discrimination complaint against Defendants Simon Property Group Inc., MS Management Associates Inc., Isaias Garcia, Derek Lobato, Nelson Jovel, and Donna Frost. The Complaint states eleven causes of action for: 1) discrimination, harassment, and retaliation on the basis of disability; 2) discrimination, harassment and retaliation on the basis of age; 3) discrimination, harassment, and retaliation on the basis of taking FMLA leave; 4) failure to provide reasonable accommodation; 5) failure to engage in the interactive process; 6) failure to prevent discrimination, harassment, and retaliation; 7) breach of express oral contract not to terminate without good cause; 8) breach of implied-in-fact contract not to terminate employment without good cause; 9) negligent hiring supervision and retention; 10) wrongful termination of employment in violation of public policy; and 11) intentional infliction of emotional distress.

The Complaint alleges that Plaintiff was employed as a mall maintenance worker with Defendants since 2007. On July 7, 2016, Plaintiff suffered workplace injuries, including electrical burns, from a transformer. The next day, he was put on work restrictions which included no lifting over five pounds. Following this, and despite the written instructions by the company’s own doctor, Plaintiff’s supervisors forced him to continue his normal job duties. During this period, they also reprimanded him for poor work performance. Further, maintenance coworkers would call him slow and would make fun of him over the radio for needing help. Lopez took disability leave from July 16, 2016 to December 9, 2016 due his injuries. On December 9, 2016, Plaintiff brought a note allowing him to work with certain restrictions, including not lifting anything over fifty pounds. Lobato stated that the company could not take Plaintiff back unless the restrictions were lifted. Plaintiff later received a note without restrictions and returned to work.

On March 31, 2017, Lopez sustained another workplace injury when he grabbed a heavy tool when he was cleaning a clogged sewer line, straining his back. As a result, Lopez went on disability leave again on April 4, 2017. While on leave, Lopez received a letter of termination from Simon on June 21, 2017. The letter stated they terminated him because he allegedly failed to respond to inquiries regarding reasonable accommodations, and because of the length of his absence. Lopez received no communication from defendants regarding his job other than his termination letter.

On November 26, 2018, Defendants each separately moved for summary judgment, or alternatively, summary adjudication of each respective claim against them. On November 20, 2020, Plaintiff filed oppositions. On November 25, 2020, Defendants submitted a reply.

Summary Judgment Standard

A party may move for summary adjudication as to one or more causes of action, affirmative defenses, claims for damages, or issues of duty if that party contends that there is no merit to the cause of action, defense, or claim for damages, or if the party contends that there is no duty owed. (See CCP §437c(f)(1).) “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Ibid.) A cause of action has no merit if: (1) one or more elements of the cause of action cannot be separately established, even if that element is separately pleaded, or (2) a defendant establishes an affirmative defense to that cause of action. (See CCP §437c(n); Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 583.) Once the defendant has shown that a cause of action has no merit, the burden shifts to the plaintiff to show that a triable issue of material fact exists as to that cause of action. (See CCP §437c(o)(2); Union Bank, supra, 31 Cal.App.4th at 583.)

In order to obtain summary judgment, “all that the defendant need do is to show that the plaintiff cannot establish at least one element of the cause of action.” (See Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853; see also Mitchell v. United National Ins. Co. (2005) 127 Cal.App.4th 457.) “Although he remains free to do so, the defendant need not himself conclusively negate any such element.” (Ibid.) “Once the defendant has made such a showing, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or as to a defense to the cause of action. If the plaintiff does not make such a showing, summary judgment in favor of the defendant is appropriate.” (See Mitchell, supra, 127 Cal.App.4th at 467.)

Until the defendant meets this evidentiary burden, the plaintiff has no burden to present evidence showing a triable issue of fact. (See Hagen v. Hickenbottom (1995) 41 Cal.App.4th 168, 178; see also Hawkins v. Wilton (2006) 144 Cal.App.4th 936, 940, citing Duckett v. Pistoresi Ambulance Service, Inc. (1993) 19 Cal.App.4th 1525, 1533 [“[w]here the evidence presented by defendant does not support judgment in his favor, the motion must be denied without looking at the opposing evidence, if any, submitted by plaintiff”].)

Procedural Objections

Plaintiff objects to Defendants’ notice on the grounds that they failed to make any mention of Plaintiff’s claim for punitive damages and, with respect to Plaintiff’s claims of discrimination and retaliation in violation of the FEHA, Defendants’ notice fails to specify any “legitimate business reason” for their conduct that has amounted to such claims. The Court does not find this a procedural defect in the notice. The notices provide that the specified causes of action fail because Plaintiff “has no evidence of pretext” which reasonably puts Plaintiff on notice that Defendants were proffering a legitimate business reason for the termination. (See e.g. MSMA Issues nos. 1, 2, 4, 5.) Plaintiff also argues that stating a claim is “not actionable,” would not fully dispose of a claim. The Court disagrees, since a non-actionable claim would be disposed-of. Further, there is no requirement that Defendants attack punitive damages when bringing a motion for summary judgment or adjudication.

Plaintiff cites no authority that Rule of Court 3.1350(c) prevents parties from cross-referencing the same declarations and evidence.

Plaintiff objects to the format of the separate statements. Indeed, the separate statement did not comply with CRC Rule 3.1350(d)(3), which requires that the undisputed material facts in the first column followed by the evidence that establishes those undisputed facts in that same column. Defendants placed their evidence in the second column. However, this did not prevent Plaintiff from responding. While Defendants should respect the Court Rules and style requirements, the Court does not find that this minor defect would justify denial of the motions.

Evidentiary Rulings

Plaintiff’s objections to MSMA’s MSJ nos. 1-20 are OVERRULED. The proposed undisputed facts are not “evidence” to be objected to. Plaintiff’s objections to Lobato’s MSJ nos. 1-31 are OVERRULED. Plaintiff’s objections to Jovel’s MSJ nos. 1-22 are OVERRULED. Plaintiff’s objections to Isaia’s MSJ nos. 1-22 are OVERRULED. Plaintiff’s objections to SPG’s MSJ nos. 1-22 are OVERRULED. Plaintiff’s objections to Frost’s MSJ nos. 1-22 are OVERRULED.

Defendant’s objections to the Lopez Declaration. Nos. 14, 18, 40, and 41 are SUSTAINED on hearsay grounds as to the unnamed coworkers. Plaintiff does not establish that these coworkers worked for Defendants to bring it into a hearsay exception. No. 46 is SUSTAINED for speculation/lack of foundation. The remainder are overruled or immaterial. The Court notes that it does not consider the contradictory deposition testimony to affect the admissibility of Plaintiff’s declaration. However, the Court will follow the Supreme Court of California’s instruction in D’Amico, which holds that the traditional, liberal construction of counteraffidavits may be set aside in such instances:

Moreover, 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, certain of those stern requirements applicable in a normal case are relaxed or altered in their operation. Thus, in King v. Andersen, supra, 242 Cal.App.2d 606, the rule providing for liberal construction of counteraffidavits was held not to require reversal of a summary judgment for defendants where the plaintiff in an assault case, although having stated in his counteraffidavit that unnecessary force was used, nevertheless had stated in a previous deposition that no force was used; refusing to find that a triable issue was thus presented, the court said: “Where, as here, however, there is a clear and unequivocal admission by the plaintiff, himself, in his deposition ... we are forced to conclude there is no substantial evidence of the existence of a triable issue of fact.” (242 Cal.App.2d at p. 610.) And in Newport v. City of Los Angeles, supra, 184 Cal.App.2d 229, the sufficiency of the moving party's affidavit was challenged on the basis, inter alia, of the rule requiring that only facts within the personal knowledge of the moving party, as to which he could give competent testimony at trial, be given effect when considering the sufficiency of his affidavits. Affirming the summary judgment, the court held that the affidavit was sufficient where the moving party incorporated therein verified admissions of the opposing party concerning which he, the moving party, could claim neither personal knowledge nor competency to testify. (184 Cal.App.2d at p. 236; see also Rader v. Thrasher (1972) 22 Cal.App.3d 883, 889-890 [99 Cal.Rptr. 670].)

The reasons for this attitude toward the legitimate products of discovery are clear. As the law recognizes in other contexts (see Evid. Code, §§ 1220-1230) admissions against interest have a very high credibility value. This is especially true when, as in this case, the admission is obtained not in the normal course of human activities and affairs but in the context of an established pretrial procedure whose purpose is to elicit facts. Accordingly, when such an admission becomes relevant to the determination, on motion for summary judgment, of whether or not there exist triable issues of fact (as opposed to legal issues) between the parties, it is entitled to and should receive a kind of deference not normally accorded evidentiary allegations in affidavits. (See generally Bauman, California Summary Judgment: A Search For a Standard (1963) 10 U.C.L.A. L.Rev. 347, especially pp. 350-351, 357-360.)

(D’Amico v. Bd. Med. Examiners (1974) 11 Cal.3d 2, 21-22.) The rule does not affect admissibility. Rather, it gives deference to the admission over the contradictory counteraffidavit.

Plaintiff’s objection to the supplemental Stein declaration is OVERRULED.

Multiple Causes of Action Combined

The Court notes that Plaintiff combined multiple causes of actions together. For example, the first, second and third cause of action are each for discrimination, retaliation, and harassment on different bases: disability, age, and medical leave. Different primary rights give rise to separate causes of action; whether they are pleaded in the same or single counts is not determinative. (Lilienthal & Fowler v. Superior Court (1993) 12 Cal.App.4th 1848, 1854; CCP § 437c(p)(2) [motion proper where “one or more elements of a cause of action, even if not separately pleaded, cannot be established”].) Thus, the Court will consider each primary right (discrimination, retaliation, harassment) as separate causes of action in each instance.

Breach of Contract Claims

MSMA moves to adjudicate the breach of contract claims on the grounds that Plaintiff was an at-will employee. (See MSMA Issues nos. 13, 14.)

“Labor Code section 2922 provides that ‘[a]n employment, having no specified term, may be terminated at the will of either party on notice to the other.’” (Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 335.) “An at-will employment may be ended by either party ‘at any time without cause,’ for any or no reason, and subject to no procedure except the statutory requirement of notice.” (Id.) There is, consequently, a statutory presumption that employment is terminable “at will,” and a contract of employment may be ended at any time at the option of either party, in the absence of any evidence of the duration or term of employment under a written or oral agreement. (Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654, 665.) The presumption of “at-will” employment may be rebutted only by evidence of an express or implied agreement between the parties that the employment would be terminated only for cause. (Id.)

“To raise a triable issue of material fact and defeat an employer’s motion for summary judgment based on the presumption of at-will employment, a plaintiff must produce competent evidence of an agreement that he or she could not be discharged without good cause.” (Eisenberg v. Alameda Newspapers, Inc. (1999) 74 Cal.App.4th 1359, 1387.) “In determining the existence of such a promise of termination only for cause, we look to the entire relationship of the parties, including such factors as the terms of any relevant application for employment[;] employee handbook or manual; the personnel policies and practices of the employer; the employee’s longevity of service; actions or communications by the employer constituting assurances of continued employment; and the practices of the industry in which the employee is engaged.” (Id.) “[Not] every vague combination of Foley factors, shaken together in a bag, necessarily allows a finding that the employee had a right to be discharged only for good cause, as determined in court… Where there is no express agreement, the issue is whether other evidence of the parties' conduct has a tendency in reason to demonstrate the existence of an actual mutual understanding on particular terms and conditions of employment. If such evidence logically permits conflicting inferences, a question of fact is presented. But where the undisputed facts negate the existence or the breach of the contract claimed, summary judgment is proper.” (Guz, supra, 24 Cal.4th at 337., internal citations and quotations omitted.)

The Complaint alleges an oral contract not to terminate plaintiff's employment except for good cause. (Compl., ¶ 76.) Defendants and their managers and supervisors terminated plaintiff's employment without good cause, violating the express oral contract they had with him. (Compl., ¶ 77.) Further, the Complaint alleges an implied-in-fact contract on “the basis of oral assurances of continued employment given to plaintiff by defendants' supervisors, the length of plaintiff's employment with defendants, defendants' actual practice of terminating employment only for cause, and the industry standard for the business defendants engaged in of terminating employment only for cause, plaintiff and defendants shared the actual understanding that plaintiff's employment could and would be terminated only for cause. This shared understanding resulted in an implied contract requiring that defendants have good cause to terminate plaintiff's employment.” (Compl., ¶ 80.) Defendants breached the implied contract by terminating his employment without good cause. (Compl., ¶ 81.)

When Plaintiff began working for MSMA, he was given an Employee Handbook and acknowledgement which provided Plaintiff’s employment would be at-will and could only be changed by the Chief Executive Officer or President. (MSMA UMF 138-140.) Neither the Chief Executive Officers of MSMA or SPG or the Presidents of MSMA or SPG told Plaintiff that he would not be an at will employee. (Id., 141.) MSMA meets its burden to show that the presumption of at-will employment applies here. Plaintiff therefore must meet the burden to show that a triable issue of fact exists as to whether the parties entered an agreement that he could not be discharged without good cause.

Plaintiff responds with his own declaration. He claims that that at the time of his hiring, he was told by unknown managers that he “would be working comfortably at Del Amo for a long time particularly because of [his] unblemished work history.” (Lopez Decl., ¶ 3.) Based on that, Lopez “believed that [he] could be fired only for lawful reasons.” (Id.) Plaintiff also cites irrelevant deposition testimony in support. (See Lobato Depo. Vol. I, at 18:5; 22:2-10 [pertains to Lopez’s coworkers]; Lopez Depo. at 36:24-25; 37:1 [same].) Thus, the only supporting evidence cited to raise a dispute of fact is a self-serving declaration regarding Plaintiff’s subjective impression of the contract and vague assurances by unknown managers. This evidence does not meaningfully dispute the presented facts regarding the nature of the employment at will, especially considering the handbook and signed acknowledgement which would render Plaintiff’s subjective impressions objectively unreasonable. Plaintiff also cites the employee handbook as providing for at-will employment where it states: “[t]he company prohibits retaliation against anyone for submitting a . . . harassment or other type of discrimination claim.” Even in the light most favorable to plaintiff, the handbook’s recognition of its legally mandated prohibition against retaliation, harassment or discrimination does not reasonably imply that Plaintiff would only be terminated for cause.

Further, Plaintiff’s self-serving declaration runs contrary to his sworn testimony. Plaintiff testified as follows:

Q Did you - - just if you ever got a document saying that your employment would not be at will.

A To what? No, no.

[…]

Q Oh. Did anyone at the - - who worked at the Del Amo mall ever tell you that you could only be terminated for cause?

A No.

Q Did anyone at the Del Amo mall promise you that you would be employed for a certain number of years?

A: No.

(Lopez Depo. Vol I, at 26.) Plaintiff cannot use his counter-affidavits to manufacture a dispute of fact where he gave contradictory deposition testimony. (See D’Amico, supra, 11 Cal.3d at 21-22.)

Plaintiff does have a long-standing service, which might support a single factor for an implied contract. However, this single factor does not come close to negating the undisputed regarding the existence of the written at-will contract. The undisputed express term of the contract control here. (See Camp v. Jeffer, Mangels, Butler & Marmaro (1995) 35 Cal.App.4th 620, 630.)

Accordingly, MSMA’s motion is GRANTED as to the contract claims.

Disability Discrimination

MSMA moves against the disability discrimination claim because he is not a qualified individual and has no evidence of pretext to dispute the legitimate, non-discriminatory reasons proffered.

A cause of action for discrimination consists of (1) the plaintiff’s membership in a protected class; (2) the plaintiff being qualified Guz, supra, 24 Cal.4th at 355.)

Qualified Individual

Under FEHA, a qualified “Essential duties” means the “fundamental job duties of the employment position.” (Nealy v. City of Santa Monica (2015) 234 Cal.App.4th 359, 373, citing Gov. Code, § 12926(f).) “A job function may be considered essential for any of several reasons, including, but not limited to, any one or more of the following: [¶] (A) ... [T]he reason the position exists is to perform that function. [¶] (B) ... [T]he limited number of employees available among whom the performance of that job function can be distributed. [¶] [And] (C) ... the incumbent in the position is hired for his or her expertise or ability to perform the particular [highly specialized] function.” (Id.) It does not include “marginal functions” of the position, which are those that, if not performed, could be readily performed by another employee, or that could be performed in an alternative way. (Id.) The reasonableness of an accommodation generally is a question of fact. (Id. at 374.) Only qualified qualified. (Green v. State of California (2007) 42 Cal.4th 254, 267.)

The Complaint alleges that Plaintiff was a qualified employee at the time of his termination. (Compl., ¶ 36.) MSMA argues that Plaintiff was not a qualified individual because Plaintiff admittedly could not perform the essential duties of the maintenance position.

Plaintiff worked as a maintenance worker for MSMA since 2008. (MSMA UMF 4.) Plaintiff worked with three other maintenance workers, which meant that there were times during workdays that he was the only maintenance worker at the mall. (Id., 14.) Plaintiff’s job required him to be able to lift and carry up to 50 pounds. (Id., 15.) Certain routine job duties included: a)

taking outdoor sign holders weighing 60 pounds, and stanchions weighing 15 pounds from storage and placing them in common areas in the mall; b) carrying ladders weighing at least 45 pounds; c) climbing on the roof while carrying tools to repair roof/air-conditioning; d) carrying 5 gallon gas canisters weighing at least 40 pounds; e) carrying boxes of floor tiles weighing 50 pounds to vendors; f) pushing tenant carts weighing up to 1200 pounds from storage to common areas; g) relocating boxes weighing from 20 to 75 pounds for Guest Services; h) replacing ceiling tiles; and i) filling pot holes in the parking lot, which requires lifting heavy asphalt. (Id., 16-25.) This maintenance position as the only job that Plaintiff was qualified to do. (Id., 26.)

On July 7, 2016, Plaintiff suffered an electric shock while working on a transformer. (Id., 34-38.) Plaintiff went to the doctor the next day and was given restrictions, including no lifting over 5 pounds, no over 5 pounds, and no pulling. (Id., 39.) During this period, he could not perform routine functions of his job. (Id., 40-44.) Plaintiff was eventually taken off work by his doctor on August 17, 2016. (Id., 45-50.) Plaintiff was released to go back to work on October 7, 2016, but with similar restrictions of not being able to lift, push or pull more than 10 pounds, no lifting over his shoulder level, and no repetitive bending or stooping. (Id., at 51.) On November 8, 2016, Plaintiff’s doctor put him on total temporary disability until December 6, 2016. (Id., 52.) On December 9, 2016, Plaintiff was released to work with a lifting restriction of 50 pounds. (Id., 53.) He worked at the mall starting then, but there were occasions where plaintiff was asked not to do work because there was no work for him to perform within his restriction. (Id., 55.)

On March 31, 2017, Plaintiff hurt his back lifting a manhole cover. (Id. 61-62.) He returned to work on April 4, spoke with Lobato regarding his injury, and was told that he should got to the doctor. (Id., 63.) On April 8, 2017, a doctor provided new restrictions of no lifting over 20 pounds, no repetitive bending or stooping. (Id., 64.) MSMA had no light duty work to assign, and Plaintiff had exhausted all of his leave by April 4, 2017. (Id., 65-66.) MSMA gave Plaintiff a leave of absence starting April 4, 2017. (Id., 67.) Plaintiff was kept of a leave of absence while his conditions persisted through June 2017 (Id., 68-74.) During this period, Lobato and Butorac called Plaintiff to see if he knew when he would be released to come back to work. (Id., 71.) Plaintiff stated that he had an attorney and could not talk to them about his leave or his condition. (Id., 72.) Butorac became concerned that maintenance issues at the mall were not being addressed as quickly as they needed to be, since there were only two maintenance workers who were for the entire 2,600,000 sq. ft. retail space. (Id., 75-76.) Butorac’s concerns grew when she Plaintiff’s continued restrictions and unresponsiveness. (Id., 77-78.) MSMA terminated his employment via letter on June 21, 2017. (Id., 79.) Plaintiff continued to see a doctor for his back issues following his termination, but his status remained the same. (Id., 80.) On October 17, 2017, his doctor determined that his restrictions were necessary, permanent and stationary, and that there were factors of permanent disability. (Id., 81.) Plaintiff has never received a doctor’s note releasing his restrictions. (Id., 82.)

The Court finds that this meets MSMA’s initial burden to demonstrate Plaintiff was not qualified. The evidence shows that Plaintiff suffered from a permanent disability that prevented him from safely lifting heavy objects, and other necessary job duties. The cited duties requiring lifting/pulling and other restricted activities are fundamental job duties of the maintenance position. Therefore, Plaintiff must demonstrate a dispute of fact as to whether those activities are essential duties, or whether a reasonable accommodation would have enabled him to perform those essential functions.

Plaintiff argues that Defendants could have provided accommodations to assist him in his work despite his injuries. Plaintiff offers that on occasions where he needed to lift heavy objects, he could have received assistance from his co-workers, including the 40 members of the custodial staff supervised by Jovel. (See MSMA UMF 14; Lopez Decl., ¶ 9; Lopez Depo., 189:3-24; 190:1-9; 192:4-10; 198:15-17; 225:10-23; 228:13-19 [Plaintiff’s cited testimony pertains to such individuals making fun of him over the radio, and his associated complaints].)

MSMA argues that it did not control the cited workers at the mall. Defendants submitted evidence that Jovel did not work for the entity defendants at that time, that he was working for a company called Township from 2011-2018 as a housekeeping supervisor, and that there was no reporting relationship between MSMA employees and the janitorial staff. (Jovel Decl., ¶¶ 3-4; see Jovel UMF 44-50.) He did “help out” through translating between different monolingual MSMA employees but was not required to do so and was not part of his job. (Id.) Plaintiff proffers evidence that MSMA had authority over Jovel in order to assign maintenance dutiesand that Jovel had a supervisory role in his relationship with the maintenance workers at Del Amo. Plaintiff does describe some evidence of an employment relationship between Jovel and MSMA/SPG. Jovel would frequently and directly give instructions and orders to all maintenance workers, including Plaintiff. (Lopez Decl., ¶¶ 9, 16, 20; Lopez Decl., at 43:25-47:14.) Plaintiff states that while he worked at the mall, Jovel was “second” to Lobato. (Id.) Thus, a dispute of fact exists over Jovel’s employment. Since Jovel’s employment by MSMA is in dispute, whether an available reasonable accommodation existed in is dispute. Whether a particular accommodation is reasonable is a question of fact for the jury.

Therefore, the Court would not adjudicate the disability claims on this basis.

Legitimate, Non-Discriminatory Reasons for Adverse Employment Actions & Pretext

Alternatively, MSMA asserts that pursuant to the burden shifting analysis, they have proffered a non-discriminatory, non-retaliatory reason for the termination. For employment discrimination claims, California courts utilize the three-pronged burden shifting analysis first articulated by the United States Supreme Court in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792. Under the first prong of McDonnell Douglas, the plaintiff has the initial burden of establishing a prima facie case of discrimination. (Guz, supra, 24 Cal.4th at 354.) Once plaintiff establishes a prima facie case, the burden shifts to defendant to articulate a “legitimate, nondiscriminatory reason” for the adverse employment action. (Id. at 355-356.) 

As our Supreme Court explained in Guz, “‘legitimate’ reasons [citation] … are reasons that are facially unrelated to prohibited bias, and which, if true, would thus preclude a finding of discrimination. [Citations.]” (See Guz, supra, 24 Cal.4th at 358 [footnote omitted].) “While the objective soundness of an employer’s proffered reasons supports their credibility . . . the ultimate issue is simply whether the employer acted with a motive to discriminate illegally.” (Ibid.) The employer’s “reasons need not necessarily have been wise or correct.” (Ibid.) In other words, as long as the employer honestly believed in the facially unrelated reason, it is irrelevant whether the employer’s reason is trivial (see Slatkin

If the employer meets its burden, the burden then shifts to the employee to show that the defendant’s legitimate reason is merely pretext. (Guz, supra,

The Complaint alleges that Defendants discharged and otherwise refused to employ Plaintiff because of his disability. (Compl., ¶¶ 25, 26(a).) MSMA offers a neutral reason for the adverse employment actions alleged: MSMA believed that it needed to replace Plaintiff and hire another maintenance worker since he could not perform essential job functions.

As discussed above, Plaintiff exhausted his leave and could not return to work due to his disability. (See MSMA UMF 34-79.) MSMA’s maintenance supervisors believed that it needed to fill the position to maintain the premises. (Id., 75-78.) Plaintiff refused to talk to Lobato or Butorac about his return and his disability persisted after his termination. (Id., 79-83.) Plaintiff’s co-workers were making statements about him needing help at work as far back as 2013 and ceased prior to his disability. (Id., 84-85.) Employees told Plaintiff that Frost did not like working with him, and he was told that before and after his July 2016 injury. (Id., 86.) Plaintiff did not complain that anyone at Del Amo discriminated against him. (Id. 87.)

MSMA therefore presents a legitimate, nondiscriminatory reason for the termination: Plaintiff could not perform the essential functions of the job, and they needed to hire another worker for his position. Further, the above discussion regarding the absence of an accommodation shows that Plaintiff was unqualified.

Plaintiff argues that the burden shifting analysis should not apply because he has direct evidence of discriminatory intent. Indeed, the McDonnell Douglas test is inapplicable where the plaintiff presents direct evidence of discrimination. (DeJung v. Superior Court (2008) 169 Cal.App.4th 533, 550.) Direct evidence is evidence which, if believed, proves the fact of discriminatory animus without inference or presumption. (Id.) Plaintiff notes that Defendants had not “noticed” that he did not have any work restrictions, or that he could not return to work until he was 100 percent recovered. (Lopez Decl., ¶¶ 30, 31.) Plaintiff asserts that there was a delay in his new uniform, and that Jovel told him it was because he was likely going to be fired. (AMF 34-35; Lopez Decl., ¶¶ 20, 21.) Plaintiff states that his then-supervisor Tina Bernardo told that his complaints of pain were why he gets bad evaluations. (Lopez Decl., ¶¶ 29-31; Lopez Depo., 306:7- 307:4 [Bernardo made a non-specific comment regarding evaluations during the March 31, 2017 incident].) Plaintiff immediately undercuts his argument by asserting that such facts were “clearly suggestive” of adverse motives. The proffered evidence is simply not direct evidence, since they would require an inference that any adverse employment action was due to his disability. Therefore, the Court finds that the burden shifting analysis applies.

Plaintiff claims that MSMA’s reason for terminating his employment is pretextual because the reason was false, there were biased remarks, his work history, the timing of termination, Defendants’ deviation from their own policies, and Defendants’ failure to investigate.

Plaintiff argues that it was false because he could perform his job duties. As discussed thoroughly above, it is undisputed that Plaintiff could not meet the lifting, bending, and stooping related essential duties of his job.

Plaintiff next contends that because he received positive work evaluations, it can be inferred that the decision to terminate his employment was pretextual. Plaintiff’s argument is non-responsive to MSMA’s submitted reason. MSMA did not terminate his employment for performance issues. Thus, a trier of fact could not logically infer that the reasoning was pretextual from his positive performance.

Plaintiff claims that MSMA’s failure to investigate his complaints of harassment and discrimination is evidence of pretext. Plaintiff ignores his admissions at deposition that he never complained of harassment or discrimination:

Q: Did you ever complain to anyone at the mall that you thought you were being discriminated against?

A: No….

Q: You didn’t complain to anyone about harassing—being harassed, did you?

A: No.

(MSMA UMF 87, 88.)

As to the biased remarks, Plaintiff claims coworkers called him slow, old, weak and useless. First, Plaintiff offers remarks from 2013—prior to his alleged disability. Plaintiff’s assertion here also contradicts his deposition testimony. At deposition, he only testified that in 2013 certain employees made fun of him because he could not perform some job tasks on his own. (Lopez Depo. at 189-193.) He testified that the bullying and harassing comments stopped sometime before his July 7, 2016 injury. Thus, they could not have been making comments because of his alleged disability. Plaintiff also states that his then-supervisor Bernardo told him that his complaints of pain were why he gets bad evaluations. (Lopez Decl., ¶¶ 29-31.) Plaintiff does not provide evidence that anyone involved in the decision-making process (Butorac and Lobato) made any negative comments that demonstrate their bias against his disability. Without such a connection, the remarks evidence pretext as to Lobato and Butorac’s proffered reasoning.

As noted, Plaintiff provides evidence that Lobato made remarks about Lopez that were suggestive of adverse motives, such as comments that Defendants had not noticed that Lopez had any work restrictions and that Lopez could not return to work until he was 100 percent recovered. (Lopez Decl., ¶ 31.) Lobato made these remarks despite his notice of Plaintiff’s medical restrictions. (Id., ¶¶ 15, 21-22; MSMA UMF 53-55.) MSMA insists that this contradicts Plaintiff’s deposition testimony that he “never had any type of problem with [Lobato.]” (Lopez Depo. at 34:9-12.) However, the Court does not find that Plaintiff’s vague statement that he had no “problem” with Lobato contradicts Plaintiff’s deposition testimony in this instance. It is unclear whether a “problem” would include those statements. Further, Plaintiff notes that a policy requiring an employee be “100 percent healed” before returning to work is a per se violation of FEHA in terms of disability discrimination and accommodations. (Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34, 50, fn. 11.) Plaintiff thereby presents substantial evidence that Lobato, a supervisor that initiated his termination, made remarks that were suggestive of adverse motives against Plaintiff. Accordingly, Plaintiff presents a dispute of material fact as to pretext regarding the disability discrimination claim.

Failure to Provide Reasonable Accommodations and Engage in the Interactive Process

MSMA moves against the fourth cause of action for failure to provide a reasonable accommodation.

Govt. Code §12940(m) makes it unlawful for an employer to fail to make reasonable accommodation for the known disability of an employee. The essential elements of a failure to accommodate claim are: 1) the plaintiff has a disability covered by the FEHA; 2) the plaintiff is a qualified individual (i.e., he or she can perform the essential functions of the position); and 3) the employer failed to reasonably accommodate the plaintiff's disability. (Swanson v. Morongo Unified School Dist. (2014) 232 Cal.App.4th 954, 969.) “[A]ssuming the employee is disabled, the employer cannot prevail on summary judgment on a claim of failure to reasonably accommodate unless it establishes through undisputed facts that (1) reasonable accommodation was offered and refused; (2) there simply was no vacant position within the employer's organization for which the disabled employee was qualified and which the disabled employee was capable of performing with or without accommodation; or (3) the employer did everything in its power to find a reasonable accommodation, but the informal interactive process broke down because the employee failed to engage in discussions in good faith.” (Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 263.) FEHA requires employers to engage in a good faith interactive process to determine effective reasonable accommodations, if any, “in response to a request for reasonable accommodation by an employee... with a known physical or mental disability...” (Gov’t Code § 12940(n); Raine v. City of Burbank (2006) 135 Cal.App.4th 1215, 1222.) 

Government Code section 12940(n) requires employers to engage in a good faith interactive process to determine effective reasonable accommodations, if any, “in response to a request for reasonable accommodation

MSMA asserts that Plaintiff is not a qualified employee and MSMA provided accommodations. (MSMA UMF 1-88, 126-127.) As discussed, Plaintiff creates a dispute of fact as to whether there was an available reasonable accommodation that would have enabled him to perform the essential functions of the maintenance position. Accordingly, MSMA’s motion is DENIED as to these issues.

Age Discrimination Claim

MSMA attacks the age discrimination claim on the grounds that it had legitimate, non-discriminatory reasons for termination, and Plaintiff has no evidence of pretext.

A prima facie case of age discrimination requires: (1) the employee was 40 years of age or older; (2) an adverse employment action was taken against the employee; (3) at the time of the adverse employment action the employee was performing the job satisfactorily; and (4) the employee was replaced by a significantly younger worker or the discharge occurred in circumstances that give rise to an inference of age discrimination.  (Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1003.) The McDonnel-Douglass burden shifting analysis applies to this claim. (Id. at 1004-1005.)

The Complaint alleges that Defendants discharged and otherwise refused to employ Plaintiff because of his age. (Compl., ¶¶ 34-38.) MSMA offers a neutral reason that MSMA believed that it needed to replace Plaintiff and hire another maintenance worker since he could not perform essential job functions and they required another maintenance worker to maintain the premises.

As discussed above, Plaintiff exhausted his leave and could not perform the essential functions of a maintenance worker. (See MSMA UMF 34-79.) MSMA’s maintenance supervisors believed that it needed to fill the position to maintain the premises. (Id., 75-78.) Plaintiff refused to talk to Lobato or Butorac about his return and his disability persisted after his termination. (Id., 79-83.) MSMA therefore presents a legitimate, nondiscriminatory reason for the termination. Plaintiff could not perform the essential functions of the job, and they needed to hire another worker for his position. Further, the above discussion regarding the absence of an accommodation shows that Plaintiff was unqualified, supporting their reasoning that they needed to hire another worker for his position. MSMA also notes that Plaintiff had certain conversations with Gacria, Sanchez, and Alvaro Bonilla regarding retirement. (Id., 120-122.) Plaintiff never told anyone in management about the conversations regarding retirement. (Id. 123.)

Plaintiff argues that the burden shifting analysis should not apply because he has direct evidence of discriminatory intent. The Court finds that the burden shifting analysis applies.

Plaintiff claims that MSMA’s reason for terminating his employment is pretextual because the reason was false, there were biased remarks, his work history, the timing of termination, Defendants’ deviation from their own policies, and Defendants’ failure to investigate his claims of harassment and discrimination in 2013 and 2017.

As to the biased remarks, Plaintiff claims certain mall workers called him slow, old, weak, and useless at various points during his employment. At deposition, he testified that in 2013 some workers at the mall made fun of him because he could not perform some job tasks on his own. (Lopez Depo. at 189-193.) He testified that the bullying and harassing comments stopped sometime before his July 7, 2016 injury. (Id.) Plaintiff states that that his supervisor Bernardo told him that his complaints of pain were why he gets bad evaluations in April 2017. (Lopez Decl., ¶¶ 29-31.) These remarks, even if favorably interpreted, do not demonstrate any discriminatory motive based on age by anyone involved in the decision-making process. Plaintiff does not dispute that Butorac and Lobato made the decision to terminate him. Thus, a trier of fact could not infer any connection between remarks by other individuals and the adverse employment action at issue.

Plaintiff provides evidence that Lobato made remarks about Lopez that were suggestive of adverse motives, such as comments that Defendants had not noticed that Lopez had any work restrictions and that Lopez could not return to work until he was 100 percent recovered. (Lopez Decl., ¶ 31.) Lobato made these remarks despite his notice of Plaintiff’s medical restrictions. (Id., ¶¶ 15, 21-22; MSMA UMF 53-55.) MSMA insists that this contradicts Plaintiff’s deposition testimony that he “never had any type of problem with [Lobato.]” (Lopez Depo. at 34:9-12.) The Court does not find that Plaintiff’s vague statement that he had no “problem” with Lobato contradicts Plaintiff’s deposition testimony in this instance. It is unclear whether a “problem” would include those statements. The Court must interpret this fact in the light most favorable to Plaintiff. Therefore, Plaintiff presents a dispute of fact as to whether Lobato’s proffered reasoning for termination was pretextual.

Accordingly, MSMA’s motion is DENIED as to these issues.

Medical Leave Discrimination/Retaliation

MSMA moves to adjudicate the medical leave discrimination and retaliation claim on the grounds that he was not eligible for such leave and has no evidence of retaliatory intent. (MSMA Issues nos. 7, 8.)

Eligibility for Leave

Plaintiff alleges that his “need to take protected leave under the FMLA, Government Code section 12945.1 and 112945.2, was a motivating factor in Defendants' decision to terminate [his] employment… to refuse to accommodate plaintiff, to refuse to engage in the interactive process, and/or to take other adverse job actions against plaintiff.” (Compl., ¶ 45.) Plaintiff allegedly took protected leave at several points during his employment. (Compl., ¶¶ 15-18.)

MSMA contends that a plaintiff can only maintain a claim of wrongful termination for taking medical leave if his employer had more than 50 employees within 75-miles of where the plaintiff was employed. (29 U.S.C. § 2611(2)(B)(ii); see also 2 CCR § 7297.0(d) [dead citation]; Gov. Code, § 12945.2(c)(2) [subsection does not exist].) This limitation applies to large companies with small operations away from their corporate headquarters. (Moreau v. Air France (9th Cir. 2004) 356 F.3d 942, 945.) The date for determining whether an employer employs at least 50 employees within 75 miles of a plaintiff’s worksite is when the employee notices he requires leave. (29 CFR § 825.110(e).) MSMA had employees at two other shopping centers within a 75-mile radius of Del Amo: the Outlets at Orange and Ontario Mills. (MSMA UMF 124.) MSMA had only 42 employees at those three malls at the time that Plaintiff’s employment ended. (Id., 125.)

However, MSMA only cites to exceptions for leave under the Family and Medical Leave Act of 1993 (“FMLA”). Plaintiff’s third cause of action cites violations of California state law, the California Family Rights Act (“CFRA”). Under state law, an employee must also be eligible to take leave. (See Soria v. Univision Radio Los Angeles, Inc. (2016) 5 Cal.App.5th 570, 604.) The employer requirements are less stringent under this act. An employer is defined, for purposes of Gov. Code section 12945.2, as any person who directly employs five or more persons. (Gov. Code, § 12945.2(a), (b)(3).) Under this section, an employer may not retaliate or discriminate against any individual because of an individual's exercise of the right to family care and medical leave. (Gov. Code, § 12945.2(k).)

Plaintiff alleges a causal connection between the protected leave he allegedly qualified for and took, and his ultimate termination. (Compl., ¶ 45.) MSMA provides that Plaintiff had exhausted his leave by April 4, 2017. (MSMA UMF 66.) Why would Plaintiff’s eligibility for further leave affect the legality of Defendants’ alleged termination, if Plaintiff already took protected leave and Defendants fired him for it? MSMA does not argue that he was not eligible for all the leave he took in the past. MSMA therefore does not meet their burden on this point.

Protected Activity

MSMA asserts that Plaintiff has no evidence of retaliatory intent because he never engaged in a protected activity. The elements of a prima facie case for FEHA retaliation are: (1) the employee engaged in protected activity; (2) the employee was subjected to an adverse employment action; and (3) a causal link between the protected activity and adverse action. (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042; see also Nealy v. City of Santa Monica (2015) 234 Cal.App.4th 359, 380.) MSMA asserts that FEHA only prohibits retaliation against employees for opposing practices forbidden by FEHA. (Gov. Code, § 12940(h); see Yanowitz, supra, 36 Cal.4th at 1046.) MSMA provides evidence that Plaintiff did not complain to Defendants that anyone at the mall discriminated against or harassed him. (MSMA UMF 87-88.) However, the basis of the cause of action is not limited to his opposition of unlawful employment practices. Instead, this cause of action is specifically directed at Plaintiff’s protected leave. As noted, the core allegation of this cause of action is that Defendants terminated him because he took leave. (Compl., ¶ 46(e), (f).) This qualifies as a protected activity under FEHA. (Gov. Code § 12945.2(a), (k); see also Soria v. Univision Radio Los Angeles, Inc. (2016) 5 Cal.App.5th 570, 604.) MSMA therefore fails to defeat the pled cause of action.

Legitimate, Non-Retaliatory Reason for Termination

MSMA cites to its leave-neutral reason for firing Plaintiff: MSMA believed that it needed to replace Plaintiff and hire another maintenance worker since he could not perform essential job functions. (See MSMA UMF 1-88, 124-125.) In response, Plaintiff offers the same evidence discussed above regarding pretext. The Court therefore finds that the same reasoning as the age discrimination pretext issue applies.

Accordingly, MSMA’s motion is DENIED as to the leave causes.

Non-Leave Retaliation Claims

MSMA move against the retaliation claims (first and second causes of action) on the grounds that Plaintiff cannot establish the prima facie case and has no evidence of pretext. (Issue no. 2, 5.)

Protected Activity

First, MSMA argues that Plaintiff cannot establish his prima facie case because he did not oppose any practice prohibited by FEHA.

FEHA makes it unlawful for the employer to discharge or discriminate against an employee because he or she has “opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part.” (Gov. Code, § 12940(h).) Opposing practices forbidden by FEHA includes seeking the advice of the DFEH or FEHC; assisting or advising any person in seeking the advice of the DFEH or FEHC; opposing employment practices the employee reasonably believes to exist and believes to be a violation of FEHA; participating in an activity perceived by the employer as opposition to discrimination; or contacting, communicating with, or participating in the proceeding of a local human rights or civil rights agency regarding employment discrimination. (Nealy, supra, 234 Cal.App.4th 359, 380.) The employee must have put the employer on notice as to what conduct it should investigate. (Yanowitz, supra, 36 Cal.4th at 1046-1047.) In this context, “an employee is not required to use legal terms or buzzwords when opposing discrimination. The court will find opposing activity if the employee's comments, when read in their totality, oppose [forbidden practices].” (Id., at 1047.)

Plaintiff alleges that he was retaliated against for his opposition to Defendants failure to provide rights related to his allegations of age/disability discrimination and harassment. (Compl., ¶¶ 26(e), (g); 38(d).)

MSMA asserts that it could not have retaliated against him for these reasons, since he did not engage in the protected activity of opposing any activities prohibited by FEHA. Plaintiff admitted he never complained that anyone at Del Amo discriminate against or harassed him. (MSMA UMF 87, 88.) He never complained that he was being assigned work that violated his restrictions or that the work he was doing was exacerbating his condition. (Id., 56.) Therefore, he did not engage in opposition activity per section 12940(h).

Plaintiff proffers evidence that he engaged in a protected activity by complaining to Defendants that the physically demanding tasks that were uniquely assigned to him violated his work restrictions, of which Defendants had notice. Plaintiff declares that he informed Lobato that he was suffering from severe depression, stress, and anxiety as a direct result of coworkers’ and other managers mockery and verbal abuse at the workplace. (Lopez Decl., ¶ 10.) He also claims that he reported conduct in 2017. (AMF 45; Lopez Decl., ¶¶ 27, 28; Lopez Depo. at 226:1-231:12; 238:1-20; Lobato Depo., 120:10-15.) Defendants assert that this contradicts his deposition testimony that he did not complain to supervisors about harassment. While Plaintiff may have felt that he did not “complain” about the conduct, further deposition testimony establishes that he factually reported that conduct to supervisors. (E.g. Lopez Depo., at 226.) Thus, a dispute of fact exists as to whether Plaintiff opposed harassment conduct.

Burden Shifting

MSMA presents legitimate, non-retaliatory reason for terminating Plaintiffs employment. MSMA argues that the same analysis applies. Thus, the Court will apply the same analysis. Accordingly, MSMA’s motion is DENIED as to this issue.

Harassment

The Individual Defendants move against the harassment causes of action on the grounds that none of them individually harassed Plaintiff.

Government Code section 12940(j)(1) prohibits harassment of an employee “because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status.” The elements of a cause of action for harassment under FEHA are: 1) plaintiff belongs to a protected group; (2) plaintiff was subject to harassment; (3) the harassment complained of was based on the plaintiff’s membership in the protected group; (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. (Jones v. Department of Corrections & Rehabilitation

Whether conduct is harassing is “a question of fact” for the jury. (Harris v. Forklift Systems (1993) 510 U.S. 17, 23.) Whether harassment exists based upon a hostile work environment is determined by considering all the circumstances, which may include frequency, severity, and interference with one’s job. (Miller v. Department of Corrections (2005) 36 Cal.4th 446, 462.) Depending on its severity, an isolated incident may support a harassment claim. (See Myers v. Trendwest Resorts, Inc.¿(2007) 148 Cal.App.4th 1403, 1421 [a single incident of physical groping may qualify as “severe”]; Hughessupra, 46 Cal.4th at 1049 [a single incident of a physical assault or the threat thereof may qualify as “severe”]; Brooks v. City of San Mateo (9th Cir. 2000) [a single incident must be “extremely severe” to support a harassment claim].) The inquiry is whether “the social environment of the workplace [has become] intolerable.” (Roby v. McKesson Corp. (2006) 47 Cal.4th 686, 706; see also Rehmani v. Superior Court (2012) 204 Cal.App.4th 945, 951-952 [noting that the severity or pervasiveness depends on the totality of circumstances].)  Recently, the Legislature clarified that harassment claims are “rarely appropriate for disposition on summary judgment,” and even a “single incident of harassing conduct is sufficient to create a triable issue.” (Gov. Code § 12923(b)-(e).)

Lobato

Plaintiff admitted Lobato did not subject him to any harassment, that he treated him fairly, and that Plaintiff never had a problem with him. (Lobato UMF 8, 57-59.) Further, Lobato’s participation in termination is a management activity. (Aguilar v. Avis Rent A Car Systems, Inc. (1999) 21 Cal. 4th 121, 130; see Roby v. McKesson Corp. Reno v. Baird (1998) 18 Cal.4th 640, 645-646; see also Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 62.) Lobato meets his burden to show that he did not personally engage in harassing conduct, and thus cannot be personally liable.

Plaintiff asserts that Lobato brushed off his complaints of harassment/discrimination without conducting any investigation and told him to “figure it out” himself. First, Plaintiff admits that he doesn’t regard this as harassing conduct. (See Lobato UMF 56.) Even ignoring Plaintiff’s testimony that Lobato did not harass him, this conduct cannot be reasonably considered “harassing” conduct on the basis of age, disability or leave-taking. At best, Lobato dismissed Plaintiff’s complaints. This may not be admirable, but it is not harassment. Plaintiff argues that Defendants are per se liable because Lobato required him to be “100 percent” healthy before returning to work in April 2017. However, Gelfo does not hold that this would support a harassment claim. (Gelfo, supra, 140 Cal.App.4th at 49 fn. 11 [such a requirement would be a per se violation for disability discrimination/accommodation purposes, as it would permit an employer to avoid the required individualized assessment of the employee's abilities].) Lobato’s failure to investigate could also only be categorized as a non-actionable management activity. Plaintiff also does not demonstrate a substantial question of fact considering Plaintiff’s admissions at deposition. (See Lopez Depo., at 248.)

Therefore, Lobato’s motion is GRANTED as to the harassment claims on these issues.

Jovel

Jovel asserts that the harassment claims fail because he was not an employee at the time, and he did not subject Plaintiff to harassment.

Del Amo contracted various services to third party vendors, including landscaping, janitorial, parking sweeper services. (Jovel UMF 44.) From 2011-2018, Nelson Jovel was a janitorial superintendent employed by Township, the janitorial company that provided housekeeping services at Del Amo. (Id., 45.) Jovel was responsible for supervising a janitorial staff of approximately 40 employees at Del Amo. (Id., 46.) Jovel had no role in hiring or firing the MSMA maintenance employees. There was no reporting relationship between MSMA employees and the janitorial staff of Township. (Id., 47.) He was asked in the past to help with communications between the Spanish speaking members of the MSMA maintenance staff, including Plaintiff, and other MSMA employees who have limited understanding of Spanish. (Id., 48.) It was not part of his job. (Id., 49.) Jovel was not responsible for deciding what work Plaintiff should perform. (Id., 50.) Plaintiff filed his DFEH charge on August 16, 2017 and only noticed conduct on around June 2017. (Id., 55-56.)

Plaintiff asserts Jovel was his supervisor. He argues that Jovel had a supervisory role in his relationship with the maintenance workers at Del Amo. Plaintiff does describe some evidence of an employment relationship between Jovel and MSMA/SPG. Jovel would frequently and directly give instructions and orders to all maintenance workers, including Plaintiff. (Jovel UMF 46-49; see Lopez Decl., at 43:25-47:14.) Plaintiff states that while he worked at the mall, Jovel was “second” to Lobato. (Id.) Thus, a dispute of fact exists over Jovel’s employment.

As to acts of harassment, Plaintiffs discovery responses identify Jovel as someone who allegedly harassed him but do not identify any harassing conduct by Jovel. (Jovel UMF 43.) Plaintiff admitted he does not recall Jovel ever subjecting him to any harassment. (Id., 54.) Plaintiff presents evidence that some of the younger employees, including Jovel, ridiculed Lopez due to his need of assistance, calling him “slow,” “old,” “weak” and “useless,” and saying that he is “unfit” for his job. (Lopez Decl., ¶¶ 9, 10; Lopez Depo., 189:3-24; 190:1-9; 192:4-10; 198:15-17; 225:10-23; 228:13-19; Exhs. 7, 8.)

As noted by Jovel, any conduct that occurred prior to August 16, 2016, therefore is time-barred as untimely. (Jovel UMF 55; see Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 63 [claims not filed with the DFEH within one-year of the date of the alleged unlawful practice are time-barred].) Plaintiff does not dispute this with substantive evidence.

As to Jovel’s 2017 harassment, Jovel only relayed others’ negative comments. (Lopez Decl., ¶¶ 26-27.) MSMA asserts that this is contradicted by Plaintiff’s deposition testimony and that Jovel can only be liable for his own actions. However, Jovel still repeated the negative comments to Plaintiff, which is his own conduct. Whether this conveyance of others allegedly harassing conduct could be considered harassing conduct itself is a question of fact for the jury. MSMA’s cited admission does not render Plaintiff’s evidence insubstantial here. (Lopez Depo., at 248-250.) Instead, Plaintiff’s failure to remember specific instance of Jovel’s harassment at deposition must be weighed against his declaration. Thus, Plaintiff presents a dispute of fact as to whether Jovel engaged in acts of harassment.

Frost

Plaintiff's discovery responses identify Frost as someone who harassed him, but do not expressly identify any harassing conduct by Frost. (Frost UMF 37.) Plaintiff confirmed that his claims against Frost are mostly based on managerial activity (Id., 40.) She allegedly made him work outside his restrictions, pushed him, and allegedly did not like giving him work orders.

The Court would agree with Frost’s motion that she engaged in various management activities which cannot be considered harassment. As to the comments to Jovel, Jovel relayed this information to Plaintiff. This does not create a dispute of fact as to hostile work environment. There is no dispute that Frost never subjected Plaintiff to this harassment.

Accordingly, Frost’s motion is GRANTED as to the harassment claims.

Garcia

A dispute of fact exists as to whether Garcia engaged in harassing conduct via his conversation with Plaintiff regarding his retirement. (See Garcia UMF 55, 56.) His retirement comments could, liberally interpreted, support Plaintiff’s position. Moreover, the retirement comments could reasonably relate to his age or his disability/leave taking. The proper interpretation of this conversation is up for dispute. Therefore, Garcia’s motion is DENIED as to these claims.

MSMA

MSMA cites the individual defendants’ motions, and reasons that if they cannot be held liable for harassment, MSMA cannot either. Since some of the claim survive, MSMA’s motion is DENIED as to the harassment claims.

Intentional Infliction of Emotional Distress

MSMA asserts that the IIED claim fails for the same reasons as the harassment claim. Where facts fall short of establishing a hostile work environment for harassment, a trial court may conclude that the “outrageous conduct” element of IIED was also not established. (Haberman v. Cengage Learning, Inc. (2009) 180 Cal.App.4th 365, 389.)

As discussed above, a dispute of fact exists as to the hostile work environment, specifically as to Jovel and Garcia’s alleged harassing conduct. Thus, a dispute of fact exists as to the IIED claims against MSMA, Jovel and Garcia. No dispute of fact exists as to Frost and Lobato’s conduct. Therefore, their motions are GRANTED as to the IIED claim.

SPG joins MSM’s motion and provides no independent analysis. Thus, SPG’s motion is DENIED for the same reasons as MSMA.

 

Derivative Issues

MSMA asserts that the negligence, failure to prevent, and wrongful termination claims fail since Plaintiff was not subject to discrimination, harassment, or retaliation. As discussed above, there are disputes of fact regarding those issues. Thus, the derivative claims may proceed as well.

SPG’s Employer Status

SPG moves against each cause of action, except the IIED claim, on the grounds that Plaintiff cannot establish that SPG employed him. (See SPG Issues nos. 1-16.) To hold SPG liable under FEHA, Plaintiff must prove that he was employed by SPG. (Gov. Code, §§ 12940, 12945.2.) The totality of the circumstances must be considered to determine the existence of an employment relationship. (McCoy v. Pac. Mar. Ass'n (2013) 216 Cal. App. 4th 283, 301.) Factors considered include payment of salary or other benefits, the ownership of the equipment used by the employee, the location where the relevant work is performed, the responsibility of the employer to train the employee, the authority to promote or discharge the employee, and the power to determine schedule, assignment, and amount of compensation. (Vernon v. State of Cal. (2004) 116 Cal. App. 4th 114, 124-126.)

Plaintiff alleges that he was employed by both MSMA and SPG. (Compl., ¶ 5.)

MSMA is a property management company and is a wholly owned subsidiary of SPG. MSMA provides property management services to certain other subsidiaries of SPG, including operations and maintenance services, such as the Del Amo. (SPG UMF 1-3.) Plaintiff began working for MSMA in 2008. (Id., 4.) Plaintiff received paychecks from MSMA. (Id., 5.)

Prior to MSMA, Plaintiff worked for the Torrance Company. (Id., 6-7.) Plaintiff was supervised by the Operations Director at Del Amo, an MSMA employee, for over 20 years. (Id., 8-11.) This would defeat the above claims against SPG since each cause of action requires an employment relationship

Plaintiff asserts he was an employee of both MSMA and SPG. (Lopez Decl., ¶¶ 3, 5, 6; Lopez Depo., at 13:8-11; 16:23-25; Lobato Depo., at 17:15-24; 18:1-5; 23:3-23; 25:5-24; 85:7-17; Pltf. Exs. 2, 3, 4, 11, 12, 13, 14, 16, 17.) A dispute of fact exists as to whether Plaintiff was employed by SPG. Plaintiff received paychecks from both MSMA and SPG, and he signed a document entitled “Simon Property Group Employee Authorization Direct Deposit of Pay,” through which he authorized SPG to directly deposit his paychecks into his bank account. (Exs. 13-14.) This bears on at least one factor of employment- the payment, of compensation. SPG insists that the use of its name is simply a trade name used by its subsidiary, which does not show an employment relationship. (See Laird v. Capital Cities (1998) 68 Cal.App.4th 727, 739-40 [use of trade name does not demonstrate that a parent company play a role in the subsidiary’s day-today business]; Tomaseli v. Transamerica Ins. Co. (1994) 25 Cal.App.4th 1269 [the use of the umbrella name Transamerica Insurance Company on internal communications, forms, and letters is typical between a parent and subsidiary and did not show a significant showing of unity of interest].) However, this is simply underscoring the dispute of fact. The Court finds that this requires the Court to interpret and weigh the facts regarding whether the use of the name was for internal parent-subsidiary communications, versus demonstrating that SPG employed plaintiff.

Accordingly, SPG’s motion is DENIED on this issue. The alter ego issue is moot, since it would not dispose of the cause of action. Given this, the Court finds that SPG and MSMA are essentially in the same position regarding the other issues presented in MSJ. Thus, the Court will grant and deny SPG’s motion along the same lines.

Moving party is ordered to give notice.

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