On 02/22/2018 a Labor - Wrongful Termination case was filed by LIANNA REBOLLEDO against HOMBRE NUEVO in the jurisdiction of Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California.
Pending - Other Pending
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
DOES 1 TO 100
6/19/2018: CIVIL DEPOSIT
6/22/2018: Minute Order
6/22/2018: PLAINTIFF?S NOTICE O.F POSTING OF ADVANCE JURY FEES
6/22/2018: DEFENDANT HOMBRE NUEVO'S NOTICE OF POSTING JURY FEES
7/3/2018: NOTICE OF CASE REASSIGNMENT AND OF ORDER FOR PLAINTIFF TO GIVE NOTICE
7/23/2018: PLAINTIFF'S NOTICE OF CASE REASSIGNMENT AND CONTINUED CASE MANAGEMENT CONFERENCE
8/23/2018: Minute Order
2/15/2019: Motion for Summary Judgment
2/15/2019: Proof of Service (not Summons and Complaint)
2/15/2019: Request for Judicial Notice
3/13/2019: Minute Order
4/17/2019: Minute Order
6/7/2018: CASE MANAGEMENT STATEMENT
3/20/2018: PROOF OF SERVICE OF SUMMONS
2/22/2018: COMPLAINT FOR: 1. WRONGFUL DISCHARGE IN VIOLATION OF PUBLIC POLICY; ETC
at 09:30 AM in Department 78; Jury Trial - Not Held - Advanced and Continued - by CourtRead MoreRead Less
at 08:30 AM in Department 78; Final Status Conference - Not Held - Advanced and Continued - by CourtRead MoreRead Less
at 08:30 AM in Department 78; Hearing on Motion for Summary Judgment - Not Held - Advanced and Continued - by CourtRead MoreRead Less
at 08:30 AM in Department 78; Post-Mediation Status Conference - Not Held - Advanced and Continued - by CourtRead MoreRead Less
at 08:30 AM in Department 78; Hearing on Ex Parte Application ( to Continue the Hearing on Defendant's Motion for Summary Judgment and to Continue Trial) - Held - Motion GrantedRead MoreRead Less
Order (Proposed Order to Continue the Hearing on Defendant's Motion for Summary Judgment and to Continue Trial); Filed by Lianna Rebolledo (Plaintiff)Read MoreRead Less
Minute Order ( (Hearing on Ex Parte Application to Continue the Hearing on D...)); Filed by ClerkRead MoreRead Less
Ex Parte Application (Plaintiff's Ex Parte Application to Continue the Hearing on Defendant's Motion for Summary Judgment and to Continue Trial); Filed by Lianna Rebolledo (Plaintiff)Read MoreRead Less
at 3:00 PM in Department 78; Hearing on Motion for Summary Judgment - Not Held - Rescheduled by PartyRead MoreRead Less
at 08:30 AM in Department 78; Post-Mediation Status Conference - Held - ContinuedRead MoreRead Less
CASE MANAGEMENT STATEMENTRead MoreRead Less
DEFENDANT HOMBRE NUEVO'S ANSWER TO COMPLAINT; DEMAND FOR JURY TRIALRead MoreRead Less
Answer; Filed by Hombre Nuevo (Defendant)Read MoreRead Less
PROOF OF SERVICE OF SUMMONSRead MoreRead Less
Proof-Service/SummonsRead MoreRead Less
Notice of Case Management Conference; Filed by ClerkRead MoreRead Less
NOTICE OF CASE MANAGEMENT CONFERENCERead MoreRead Less
Complaint; Filed by Lianna Rebolledo (Plaintiff)Read MoreRead Less
SUMMONSRead MoreRead Less
COMPLAINT FOR: 1. WRONGFUL DISCHARGE IN VIOLATION OF PUBLIC POLICY; ETCRead MoreRead Less
Case Number: BC695003 Hearing Date: February 05, 2020 Dept: 78
HOMBRE NUEVO; DOES 1-100;
February 5, 2020
[TENTATIVE] RULING RE:
DEFENDANT elvia arango’s MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION
Defendant Elvia Arango’s Motion for Summary Judgment is DENIED; The Motion for Summary Adjudication is GRANTED as to the Sixth Cause of Action, and DENIED as to the remainder.
This is a wrongful termination case. The Complaint alleges as follows. Plaintiff Lianna Rebolledo (“Rebolledo”) worked as a coordinator for Defendant Hombre Nuevo (“NH”) from March 2014 until her termination in February 2017. (Compl. ¶ 6.) Rebolledo was terminated while on medical leave via a letter sent by U.S. Mail. (Compl. ¶ 6.) Plaintiff was also accused of stealing and misappropriating items and trade secrets of Hombre Nuevo. (Compl. ¶ 16.) Plaintiff’s requests for her personnel and payroll records were denied. (Compl. ¶ 17.)
Rebolledo filed the Complaint on February 22, 2018, alleging nine causes of action:
Wrongful discharge in violation of public policy
Failure to engage in interactive process
Failure to produce all employee records upon request
Intentional infliction of emotional distress
Negligent infliction of emotional distress
Violation of Business & Professions Code § 17200 et seq.
On April 27, 2018 Hombre Nuevo filed an Answer.
On November 5, 2020 Arango filed the instant Motion for Summary Judgment.
On August 26, 2019, Defendant Elvia Arango filed an Answer.
On September 20, 2019, Plaintiff filed an Opposition to the instant Motion.
Rebolledo objects to Defendants’ Memorandum of Costs filed on December 19, 2019. However, such Memorandum was not filed in connection with the instant Motion, does not have a hearing scheduled for the hearing date of this Motion, nor was it filed in connection without any other Motion. Accordingly, the Court does not have an appropriate Motion to rule on.
MOTION FOR SUMMARY JUDGMENT
A party may move for summary judgment “if it is contended that the action has no merit or that there is no defense to the action or proceeding.” (Code Civ. Proc. § 437c, subd. (a).) “[I]f all the evidence submitted, and all inferences reasonably deducible from the evidence and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law,” the moving party will be entitled to summary judgment. (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) A motion for summary adjudication may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment. (Code Civ. Proc. § 437c, subd. (f)(2).)
The moving party bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact, and if he does so, the burden shifts to the opposing party to make a prima facie showing of the existence of a triable issue of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850; accord Code Civ. Proc. § 437c, subd. (p)(2).) Plaintiffs moving for summary judgment may meet their initial burden by “prov[ing] each element of the cause of action entitling the party to judgment on the cause of action.” (Code Civ. Proc. § 437c(p)(1).)
Once the plaintiff has met that burden, the burden shifts to the defendant to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. (Code Civ. Proc. § 437c(p)(1).) The defendant may not rely upon the mere allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto. (Code Civ. Proc. § 437c(p)(1).) To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)
Defendant Elvia Arango moves for summary judgment on all causes of action, primarily on the grounds that Rebolledo was discharged for gross misconduct, a legitimate non-discriminatory reason, and that her requests for time off were accommodated. (Motion at pp. 6-9.)
Disability under FEHA
Arango argues that Rebolledo cannot prevail on any employment cause of action because Rebolledo did not have breast cancer as she previously alleged. (Motion at p. 10.) Arango offers the deposition of Rebolledo’s treating physician who testified that she did not diagnose Rebolledo with cancer and that she did not have cancer surgery. (Motion at p. 10.)
In Opposition, Rebolledo argues that she was told that she had lumps in her breasts that concerned her treating physician and that she obtained a second opinion from the doctor who provided the doctor’s note in her employment record. (Oppo. at p. 7.) Rebolledo further contends that she had surgery to remove the lumps. (Oppo. at p. 8.)
FEHA disability discrimination applies to both physical disabilities and medical conditions. (Gov. Code, § 12940.) Here, it was alleged in the Complaint that Rebolledo requested medical leave due to an upcoming surgery. (Compl. ¶ 7.) The fact of whether Rebolledo sought surgery for cancer or for breast lumps is not relevant. A cancer diagnosis is not required for a qualifying disability. Further, at the time that the leave was sought, HN and Arango are not alleged to have doubted the sincerity of the request for medical leave. (UMF ¶¶ 7-11.)
Cause of Action 1: Wrongful Discharge
“The elements of a claim for wrongful discharge in violation of public policy are (1) an employer-employee relationship, (2) the employer terminated the plaintiff's employment, (3) the termination was substantially motivated by a violation of public policy, and (4) the discharge caused the plaintiff harm.” (Nosal-Tabor v. Sharp Chula Vista Medical Center (2015) 239 Cal.App.4th 1224, 1234–35.) A termination in violation of FEHA’s anti-discrimination provisions may constitute a violation of public policy. (See Stevenson v. Superior Court (1997) 16 Cal.4th 880, 897.)
Here, it is undisputed that Rebolledo was employed by HN and that HN terminated her employment. (UMF ¶ 12.) Rebolledo alleges that it is a violation of public policy pursuant to Government Code section 12940 et seq. to discharge employees who attempt to exercise a statutory right or privilege, including requesting reasonable accommodations. (Compl. ¶ 22.)
In the instant Motion, Arango, an employee of HN, argues that Rebolledo cannot satisfy the elements of the cause of action because Rebolledo was not performing her job competently and was not terminated for any discriminatory motive. (Motion at pp. 7-8.) Arango provides evidence that: (1) Rebolledo texted other employees of NH to ask if they would join in leaving to work at another school, (2) told fellow employees to not attend an event to represent Arango, without authority, and (3) took curtain belonging to NH, which she admitted taking at her deposition. (UMF ¶ 15.)
The Court has previously granted HN’s Motion for Summary Judgment on this issue. However, in this motion, Arango has not established a prima facie case as to this cause of action as it relates to her. Every argument and piece of evidence relates to HN, not to Arango. While the Court finds that the Complaint and other evidence thus provided does not allege any cause of action against Arango, in particular, as separate from NH, Arango does not make this argument.
Arango cannot establish a prima facie case as to the first prong, “an employer-employee relationship” as Arango does not argue that she was not Rebolledo’s employer.
Accordingly, the Motion for Summary Adjudication is DENIED as to the First Cause of Action.
Cause of Action 2: Retaliation
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, subd. (h).) “To establish a prima facie case of retaliation under FEHA, a plaintiff must show (1) he or she engaged in a ‘protected activity,’ (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer's action. [Citations]” (Nealy v. City of Santa Monica (2015) 234 Cal.App.4th 359, 380.)
In the instant MSJ, Arango argues that the cause of action fails for lack of adverse action based on a protected activity because NH had a legitimate, non-retaliatory reason for terminating the employment. (Motion at pp. 8-9.) NH contends that Plaintiff “cannot demonstrate through substantial evidence that the reasons proffered by Hombre Nuevo were pretextual.” (Motion at pp. 8-9.)
As established above, the Court has previously granted HN’s Motion for Summary Judgment on this issue. However, in this motion, Arango has not established a prima facie case showing the lack of triable issues of fact as this cause of action relates to her. In fact, Arango’s Motion on this cause of action does not mention Arango a single time.
The Motion for summary adjudication is DENIED as to the Second Cause of Action.
Cause of Action 3: Disability Discrimination
To establish a discrimination claim under FEHA, an employee must prove the following elements: “(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.” (Dinslage v. City and County of San Francisco (2016) 5 Cal.App.5th 368, 378.)
As established above in Causes of Action 1 and 2, Arango has failed to establish a prima facie case showing lack of a triable issue of fact as this cause of action relates to Arango. Arango’s motion makes no mention of Arango as to this cause of action, and the separate statement only mentions a single action by Arango, to which Rebolledo disputes as being said by someone else. (UMF ¶ 65.) Both parties make a single reference to Arango in this section wherein Rebolledo says that upon asking a different employee in December for time-off in January for surgery, the other employee (Rosy) said, “That’s fine. That’ll be fine.” (Cabrera Decl., Exh. 2, 102:14-103:12.) Arango’s separate statement mistakenly attributes this quote to herself. (UMF ¶ 65.) Arango further does not argue that she is not Rebolledo’s employer.
Accordingly, the Motion for Summary Adjudication is DENIED as to the Third Cause of Action.
Cause of Action 4: Failure to Engage in the Interactive Process
The Fourth Cause of Action in the Complaint alleges that HN failed to engage in the interactive process pursuant to Government Code section 12940(n). (Compl. p. 7.)
Government Code section 12940, subsection (n) “declares it an unlawful employment practice for an employer ‘to fail to engage in a timely, good faith, interactive process with the employee or applicant to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee or applicant with a known physical or mental disability or known medical condition.’” (Nadaf-Rahrov v. Neiman Marcus Group, Inc. (2008) 166 Cal.App.4th 952, 961–962.) A prerequisite to liability under section 12940, subsection (n) is whether a reasonable accommodation is available, and the burden is on the employee to prove so. (Nadaf-Rahrov v. Neiman Marcus Group, Inc., supra, 166 Cal.App.4th at 984.)
In the instant MSJ, Arango argues that Rebolledo’s claim fails because NH “granted every accommodation that Ms. Rebolledo requested.” (Motion at p. 9; UMF ¶¶ 7-11.) Arango further asserts that Plaintiff was granted time off when originally requested, and was granted additional time off requested while on leave upon request. (Motion at p. 9.) In Opposition, Rebolledo argues that NH did not act in good faith participating in the interactive process she asked for leave to begin on January 5, 2017, but that NH did not allow her to take leave until January 12, 2017, and that NH asked her to complete reports and train other workers before taking leave. (Opposition at pp. 13-14.)
The Court has previously granted the summary judgment on this issue as to HN and found that Rebolledo did not submit sufficient evidence that she was denied reasonable accommodation by HN. However, Arango’s Motion fails, as it did for the previous causes of action, because it fails to establish a prima facie case as to lack of a triable issue of fact as this cause of action relates to Arango. Arango’s motion makes zero references to Arango’s action and the separate statement fails to establish a prima facie case that Arango sufficiently engaged in the interactive process. Thus, the burden does not shift to Rebolledo.
Accordingly, the Motion for Summary Adjudication is DENIED as to the Fourth Cause of Action.
Cause of Action 5: Failure to Produce Employee Records Upon Request
Labor Code section 1198.5 provides that “(a) Every current and former employee, or his or her representative, has the right to inspect and receive a copy of the personnel records that the employer maintains relating to the employee's performance or to any grievance concerning the employee.” (Lab. Code, § 1198.5.) Section 226 provides that “current and former employees [have] the right to inspect or receive a copy of [itemized wage] records pertaining to their employment, upon reasonable request to the employer.” (Lab. Code, § 226.)
Arango’s argument for this cause of action, as in the previous causes of action, were not argued on her individual behalf. The evidence that Arango offers in her separate statement exclusively relates to actions by HN, not herself. Thus, Arango has failed to make a prima facie case as to the lack of triable issue of act as this cause of action relates to Arango.
Accordingly, the Motion for Summary Adjudication is DENIED as to the Fifth Cause of Action.
Cause of Action 6: Defamation
“The elements of a defamation claim are (1) a publication that is (2) false, (3) defamatory, (4) unprivileged, and (5) has a natural tendency to injure or causes special damage.” (Wong v. Tai Jing (2010) 189 Cal.App.4th 1354, 1370.)
“At common law, [the common interest] privilege embodied a two-step analysis, under which the defendant bore the initial burden of demonstrating that the allegedly defamatory communication was made upon a privileged occasion, and the plaintiff then bore the burden of proving that defendant had made the statement with malice.” (Noel v. River Hills Wilsons, Inc. (2003) 113 Cal.App.4th 1363, 1369.) “Courts have consistently interpreted section 47, subdivision (c) to apply in the employment context.” (Id.) California courts have found that the privilege applies when managers communicate to their employees regarding the discipline of another employee because the other employees are “interested persons” due to the communications’ goal in preserving employee morale and job efficiency. (Deaile v. General Telephone Co. of California (1974) 40 Cal.App.3d 841, 846.)
Arango argues, here, that her alleged statements at an internal meeting answering questions from other HN instructors and students about Rebolledo’s status were made on a privileged basis. (Motion at p. 14.) Arango contends that the burden shifts to Rebolledo to show that the statements were made with malice. (Id.)
Rebolledo argues that the statements made at the internal meeting were said to “harass and further oppress” her. (Oppo. at p. 17.) However, Rebolledo’s argument that the statements were made with malice are not availing and Rebolledo fails to provide any evidence for her argument. Rebolledo contends that the statements weren’t true because the curtains were found. (Oppo. at p. 17.)
The truth or falsity of the statements regarding the missing USB drive and curtains are not the focus of the Court’s analysis. Rather, the Court must determine whether Rebolledo has provided clear and convincing evidence that Arango communicated the alleged statements of theft with actual malice. In fact, Rebolledo admits that she is not even certain that Arango was answering questions at the meeting. (UMF ¶ 124.) There is no evidence that Arango did not believe the alleged statements regarding Rebolledo’s status to be true.
Accordingly, Rebolledo has failed to establish the element of malice. The common interest privilege protects the statements made at the meeting.
Accordingly, the Motion for Summary Adjudication is GRANTED as to the Sixth Cause of Action.
Cause of Action 7: Intentional Infliction of Emotional Distress/ Cause of Action 8: Negligent Infliction of Emotional Distress
The Complaint alleges that NH engaged in “extreme and outrageous conduct” by abusing “a position of authority or a relationship that gave Defendant real or apparent power to affect Plaintiff’s interests” and with the knowledge that Plaintiff was vulnerable to emotional distress and knew the conduct would result in mental distress. (Compl. ¶¶ 75-78.) Which specific conduct of NH is alleged to be extreme and outrageous is not specified in the Complaint.
The Complaint further alleges that NH was “negligent or acted with malice, oppression, or fraudulent intent because Defendant intended to cause injury to Plaintiff.” (Compl. ¶ 86.) Which specific conduct of NH is alleged to satisfy the allegations in paragraph 86 is not specified in the Complaint.
In the instant MSJ, Arango argues that the California Workers’ Compensation Act’s exclusive remedies rules bars Plaintiff’s claims for the Seventh and Eighth Causes of Action. (Motion at pp. 15-17.) In Opposition, Rebolledo argues that the exclusivity provision does not apply to tort claims for IIED or NIED (Opposition at p. 17.)
At its base, the trigger for workers’ compensation is a compensable injury. “An injury is compensable for exclusivity purposes if two conditions exist. First, the statutory conditions of compensation must concur. (See § 3600, subd. (a).) For example, if the injury arises ‘out of and in the course of the employment, the exclusive remedy provisions apply notwithstanding that the injury resulted from ... intentional conduct ... even though the ... conduct might be characterized as egregious.’ Second, the injury must cause a “disability or the need for medical treatment.’ ” (Charles J. Vacanti, M.D., Inc. v. State Comp. Ins. Fund (2001) 24 Cal.4th 800, 813 citing Shoemaker v. Myers (1990) 52 Cal.3d 1, 15; Gomez v. Acquistapace (1996) 50 Cal.App.4th 740, 748.)
Neither party addresses the truly relevant argument which is that this Motion was seemingly brought on behalf of Arango, an employee of HN (despite the fact that nearly every argument is identical to the argument brought on behalf of HN). The Workers’ Compensation Act exclusivity provisions provide an exclusive remedy for an employee against an employer. (Lab. Code, § 3602.) As Arango is not alleged, by either party, to be an employer, this section is not applicable.
Accordingly, the Motion for Summary Adjudication is DENIED as to the Seventh and Eighth Causes of Action.
Cause of Action 9: Violation of Business & Professions Code § 17200 et seq.
Relief under section 17200 “stand[s] or fall[s] depending on the fate of the antecedent substantive cause of action. (Krantz v. BT Visual Images, L.L.C. (2001) 89 Cal.App.4th 164, 178, as modified (May 22, 2001).)
The instant Motion argues that because Plaintiff’s Ninth Cause of Action is “derivative of her other claims,” and because the antecedent claims fails, then this cause of action must fail. (Motion at p. 3.)
However, as Arango has failed to prevail on any the causes of action except for Defamation, this argument is without merit. Arango does not provide any further argument as to this cause of action.
Accordingly, the Motion for Summary Judgment is DENIED as to the Ninth Cause of Action.
Arango argues that because “the undisputed evidence shows that Plaintiff was terminated for misconduct, and not for any discriminatory motive” Rebolledo is not entitled to damages. (Motion at pp. 17-18.)
However, Arango’s argument has little to do with Arango, as the argument is centered on the termination imposed by HN.
Accordingly, as this argument is not regarding the moving party, it is not persuasive.
Arango further makes an argument that Rebolledo may not receive punitive damages because “Plaintiff must prove oppression, fraud, or malice on the part of Ms. Arango by clear and convincing evidence.” (Motion at p. 18.) While this argument does successfully address the moving party, as Arango has failed to prevail on all causes of action except Defamation, Arango has failed to prove to the Court that Rebolledo has not proven oppression, fraud, or malice.
The Motion is DENIED as to the Damages arguments.
DATED: February 5, 2020
Hon. Robert S. Draper
Judge of the Superior Court