This case was last updated from Los Angeles County Superior Courts on 01/24/2021 at 07:55:20 (UTC).

MARIA DE LOS ANGELES RAMIREZ VS PROLAND MANAGEMENT COMPANY L

Case Summary

On 03/26/2018 MARIA DE LOS ANGELES RAMIREZ filed a Labor - Wrongful Termination lawsuit against PROLAND MANAGEMENT COMPANY L. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are BARBARA A. MEIERS and DAVID S. CUNNINGHAM III. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****9660

  • Filing Date:

    03/26/2018

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Labor - Wrongful Termination

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

BARBARA A. MEIERS

DAVID S. CUNNINGHAM III

 

Party Details

Plaintiff and Petitioner

RAMIREZ MARIA DE LOS ANGELES

Defendants and Respondents

PARK CENTRAL MANAGEMENT LLC

DOES 1-20

PROLAND MANAGEMENT COMPANY LLC

PROLAND REAL ESTATE CORPORATION

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

MAKAREM RONALD W. ESQ.

MAKAREM RONALD W

MAKAREM RONALD W.

Defendant and Respondent Attorneys

MCGUIGAN KATHRYN T. ESQ.

MCGUIGAN KATHRYN T.

 

Court Documents

Order Appointing Court Approved Reporter as Official Reporter Pro Tempore

11/25/2020: Order Appointing Court Approved Reporter as Official Reporter Pro Tempore

Opposition - OPPOSITION PLAINTIFFS COMPENDIUM OF EVIDENCE IN SUPPORT OF PLAINTIFFS OPPOSITION TO DEFENDANTS MOTION FOR SUMMARY ADJUDICATION

11/12/2020: Opposition - OPPOSITION PLAINTIFFS COMPENDIUM OF EVIDENCE IN SUPPORT OF PLAINTIFFS OPPOSITION TO DEFENDANTS MOTION FOR SUMMARY ADJUDICATION

Proof of Service by Mail

11/12/2020: Proof of Service by Mail

Opposition - OPPOSITION PLAINTIFFS COMPENDIUM OF EVIDENCE IN SUPPORT OF PLAINTIFFS OPPOSITION TO DEFENDANTS MOTION FOR SUMMARY ADJUDICATION

11/12/2020: Opposition - OPPOSITION PLAINTIFFS COMPENDIUM OF EVIDENCE IN SUPPORT OF PLAINTIFFS OPPOSITION TO DEFENDANTS MOTION FOR SUMMARY ADJUDICATION

Opposition - OPPOSITION PLAINTIFFS MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF OPPOSITION TO DEFENDANTS MOTION FOR SUMMARY ADJUDICATION OF PLAINTIFFS CLAIMS

11/12/2020: Opposition - OPPOSITION PLAINTIFFS MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF OPPOSITION TO DEFENDANTS MOTION FOR SUMMARY ADJUDICATION OF PLAINTIFFS CLAIMS

Motion for Summary Adjudication

9/11/2020: Motion for Summary Adjudication

Separate Statement

9/11/2020: Separate Statement

Memorandum - MEMORANDUM APPENDIX OF NON-CALIFORNIA AUTHORITIES CITED IN MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR SUMMARY ADJUDICATION

9/11/2020: Memorandum - MEMORANDUM APPENDIX OF NON-CALIFORNIA AUTHORITIES CITED IN MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR SUMMARY ADJUDICATION

Stipulation and Order - STIPULATION AND ORDER STIPULATION AND PROTECTIVE ORDER - CONFIDENTIAL DESIGNATION ONLY

3/24/2020: Stipulation and Order - STIPULATION AND ORDER STIPULATION AND PROTECTIVE ORDER - CONFIDENTIAL DESIGNATION ONLY

Notice of Ruling

11/20/2019: Notice of Ruling

Stipulation and Order - STIPULATION AND ORDER STIPULATION AND (PROPOSED) PROTECTIVE ORDER REGARDING PRIVATE AND CONFIDENTIAL CONTACT INFORMATION

1/30/2020: Stipulation and Order - STIPULATION AND ORDER STIPULATION AND (PROPOSED) PROTECTIVE ORDER REGARDING PRIVATE AND CONFIDENTIAL CONTACT INFORMATION

Minute Order - MINUTE ORDER (POST-MEDIATION STATUS CONFERENCE)

11/15/2019: Minute Order - MINUTE ORDER (POST-MEDIATION STATUS CONFERENCE)

Notice of Ruling

4/4/2019: Notice of Ruling

Notice - Notice of Court Orders

2/20/2019: Notice - Notice of Court Orders

CASE MANAGEMENT ORDER

7/23/2018: CASE MANAGEMENT ORDER

CIVIL DEPOSIT -

6/29/2018: CIVIL DEPOSIT -

DEFENDANTS ANSWER TO COMPLAINT

5/29/2018: DEFENDANTS ANSWER TO COMPLAINT

COMPLAINT FOR: 1. SEXUAL HARASSMENT IN VIOLATION OF FEHA; ETC

3/26/2018: COMPLAINT FOR: 1. SEXUAL HARASSMENT IN VIOLATION OF FEHA; ETC

43 More Documents Available

 

Docket Entries

  • 03/30/2021
  • Hearing03/30/2021 at 10:00 AM in Department 37 at 111 North Hill Street, Los Angeles, CA 90012; Jury Trial

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  • 03/23/2021
  • Hearing03/23/2021 at 08:30 AM in Department 37 at 111 North Hill Street, Los Angeles, CA 90012; Final Status Conference

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  • 02/09/2021
  • Hearing02/09/2021 at 08:30 AM in Department 37 at 111 North Hill Street, Los Angeles, CA 90012; Post-Mediation Status Conference

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  • 01/15/2021
  • Docketat 3:30 PM in Department 37; Court Order

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  • 01/15/2021
  • DocketCertificate of Mailing for ((Court Order) of 01/15/2021); Filed by Clerk

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  • 01/15/2021
  • DocketMinute Order ( (Court Order)); Filed by Clerk

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  • 12/02/2020
  • Docketat 08:30 AM in Department 37; Post-Mediation Status Conference - Not Held - Advanced and Continued - by Court

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  • 11/25/2020
  • Docketat 08:30 AM in Department 37; Hearing on Motion for Summary Adjudication - Held

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  • 11/25/2020
  • DocketOrder Appointing Court Approved Reporter as Official Reporter Pro Tempore

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  • 11/25/2020
  • DocketMinute Order ( (Hearing on Motion for Summary Adjudication)); Filed by Clerk

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73 More Docket Entries
  • 04/16/2018
  • Docketat 00:00 AM in Department 12; (Affidavit of Prejudice; Transferred to different departmnt) -

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  • 04/16/2018
  • DocketMinute Order

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  • 04/16/2018
  • DocketMinute order entered: 2018-04-16 00:00:00; Filed by Clerk

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  • 04/12/2018
  • DocketNOTICE OF CASE MANAGEMENT CONFERENCE

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  • 04/12/2018
  • DocketNotice of Case Management Conference; Filed by Clerk

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  • 04/09/2018
  • DocketChallenge To Judicial Officer - Peremptory (170.6); Filed by Maria de los Angeles Ramirez (Plaintiff)

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  • 04/09/2018
  • DocketPLAINTIFFS' APPLICATION FOR ORDER DISQUALIFYING JUDGE PURSUANT TO CCP 170.6; DECLARATION OF JEAN-PAUL LE CLERCQ

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  • 03/26/2018
  • DocketSUMMONS

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  • 03/26/2018
  • DocketComplaint; Filed by Maria de los Angeles Ramirez (Plaintiff)

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  • 03/26/2018
  • DocketCOMPLAINT FOR: 1. SEXUAL HARASSMENT IN VIOLATION OF FEHA; ETC

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Tentative Rulings

Case Number: BC699660    Hearing Date: November 25, 2020    Dept: 37

HEARING DATE: November 25, 2020

CASE NUMBER: BC699660

CASE NAME: Maria De Los Angeles Ramirez v. Proland Management Company, LLC, et al.

TRIAL DATE: March 30, 2021

PROOF OF SERVICE: OK

MOTION: Defendants’ Motion for Summary Adjudication

MOVING PARTIES: Defendants, Proland Management Company, LLC, Proland Real Estate Corporation and Park Central Management, LLC

OPPOSING PARTY: Plaintiff, Maria De Los Angeles Ramirez

OPPOSITION: November 12, 2020

REPLY: November 20, 2020

TENTATIVE: Defendants’ motion is granted with respect to the first through fifth causes of action and the Complaint’s prayer for punitive damages. Defendants’ motion is otherwise denied. Defendants are to give notice.

Background

This action arises out of Plaintiff, Maria De Los Angeles Ramirez’s (“Plaintiff”) employment with Defendants, Proland Management Company, LLC (“Proland Management”), Proland Real Estate Corporation (“Proland Real Estate”), and Park Central Management LLC (“Park Central”). Proland Management and Park Central allegedly provided security services for housing complexes, while Proland Real Estate is allegedly engaged in the real estate business. Plaintiff alleges that she began working for Defendants as a security guard in 2013 and began experiencing sexual harassment in late 2016 from one of Defendants’ supervising security guards, “Alvaro.” Plaintiff alleges that although she repeatedly complained to Defendants, Defendants dismissed her complaints, retaliated against Plaintiff, and eventually terminated her on May 26, 2017. Additionally, Plaintiff alleges that while employed by Defendants, she regularly worked overtime for which she was not paid and was regularly denied meal and rest breaks without appropriate compensation. Plaintiff also alleges that she was never reimbursed for expenses required to perform her job duties, such as her cell phone used for business purposes.

Plaintiff’s Complaint alleges the following causes of action: (1) sexual harassment in violation of the Fair Housing Employment Act (“FEHA”), (2) sexual discrimination in violation of FEHA, (3) retaliation in violation of FEHA, (4) failure to prevent discrimination in violation of FEHA, (5) wrongful termination in violation of public policy, (6) failure to pay overtime wages, (7) failure to provide meal periods, (8) failure to provide rest periods, (9) failure to pay all wages earned, (10) failure to indemnify for expenses, (11) failure to furnish accurate wage statements, (12) failure to maintain required records, (13) failure to pay earned wages upon discharge.

Defendants now move for summary adjudication on the following issues:

  1. Plaintiffs first cause of action for sexual harassment fails as a matter of law because the admissible evidence shows Plaintiff was not subjected to harassing conduct that was severe or pervasive.

  2. Plaintiffs first cause of action for sexual harassment fails as a matter of law because the admissible evidence shows the alleged harassing conduct occurred outside of the workplace and was not related to the company's interest.

  3. Plaintiffs first cause of action for sexual harassment fails as a matter of law because the admissible evidence shows the alleged harasser was not Plaintiffs supervisor and Proland took immediate and appropriate corrective action as soon of it learned of the alleged harassment.

  4. Plaintiff's second cause of action for sexual discrimination fails as a matter of law because the admissible evidence shows Plaintiff was not subjected to an adverse employment action because of her sex.

  5. Plaintiffs second cause of action for sexual discrimination fails as a matter of law because the admissible evidence shows Proland had legitimate, nondiscriminatory business reasons for any reduction in Plaintiffs hours and for its decision to end Plaintiff's employment.

  6. Plaintiff's second cause of action for sexual discrimination fails as a matter of law because the admissible evidence shows that the stated reasons for any reduction in Plaintiff's hours and Proland's decision to end Plaintiffs employment were not pretext for discrimination based on sex.

  7. Plaintiff's third cause of action for retaliation fails as a matter of law because the admissible evidence shows no causal link between Plaintiff's complaint of alleged harassment and her reduction in hours or Proland's decision to end her employment.

  8. Plaintiff's third cause of action for retaliation fails as a matter of law because the admissible evidence shows Proland had legitimate, nonretaliatory business reasons for any reduction in Plaintiffs hours and for its decision to end Plaintiff's employment.

  9. Plaintiff's third cause of action for retaliation fails as a matter of law because the admissible evidence shows that the stated reasons for any reduction in Plaintiffs hours and Proland's decision to end Plaintiff's employment were not pretext for retaliation.

  10. Plaintiff's fourth cause of action for failure to prevent discrimination and harassment fails as a matter of law because the admissible evidence shows Plaintiff's underlying claims for discrimination and harassment fail.

  11. Plaintiffs fifth cause of action for wrongful termination in violation of public policy fails as a matter of law because the admissible evidence shows it is based entirely on Plaintiff's underlying claims for harassment, discrimination, and retaliation fail, which fail as a matter of law.

  12. Plaintiff's sixth cause of action for failure to pay overtime wages fails as a matter of law because the admissible evidence shows that Plaintiff was not employed by Proland during the time she alleges she is owed overtime.

  13. Plaintiff's sixth cause of action for failure to pay overtime wages fails as a matter of law because the admissible evidence shows that, as an employee of Proland, Plaintiff was paid for all overtime hours worked.

  14. Plaintiff's seventh cause of action for failure to provide meal periods fails as a matter of law because the admissible evidence shows Proland provided Plaintiff with the opportunity to take legally-compliant meal periods.

  15. Plaintiff's eighth cause of action for failure to provide rest periods fails as a matter of law because the admissible evidence shows Proland authorized and permitted Plaintiff to take legally compliant rest periods.

  16. Plaintiffs ninth cause of action for failure to pay all wages earned in compliance with Labor Code Section 204 fails as a matter of law, because there is no private right of action under Labor Code Section 204.

  17. Plaintiff's eleventh cause of action for failure furnish accurate wage statements fails as a matter of law, because it is based upon Plaintiff's underlying claims for unpaid overtime wages and failure to provide meal and rest periods. Since Plaintiff's underlying overtime, meal period, and rest period claims fail, Plaintiff's eleventh cause of action for failure to furnish accurate wage statements necessarily fails as well.

  18. Plaintiff's eleventh cause of action for failure furnish accurate wage statements fails as a matter of law to the extent it is based on Plaintiffs underlying meal and rest period claims, because a claim for nonpayment of meal or rest period premiums cannot support a claim for failure to provide wage statements in compliance with Labor Code Section 226.

  19. Plaintiffs twelfth cause of action for failure to maintain required records in compliance with Labor Code Section 1174 fails as a matter of law, because there is no private right of action under Labor Code Section 1174.

  20. Plaintiffs thirteenth cause of action for failure to timely pay earned wages due at the time of termination fails as a matter of law, because it is based upon Plaintiffs underlying claims for unpaid overtime wages and failure to provide meal and rest periods. Since Plaintiff's underlying overtime, meal period, and rest period claims fail, Plaintiff's thirteenth cause of action for failure to timely pay earned wages due at the time of termination necessarily fails as well.

  21. : Plaintiff's thirteenth cause of action for failure to timely pay earned wages due at the time of termination fails as a matter of law to the extent it is based on Plaintiff's underlying meal and rest period claims, because a claim for nonpayment of meal or rest period premiums cannot support a claim failure to timely pay earned wages due at the time of termination.

  22. The prayer for punitive damages fails as a matter of law because the admissible evidence shows that Plaintiff cannot prevail on her claims for harassment, sex discrimination, or retaliation.

  23. The prayer for punitive damages fails as a matter of law because the admissible evidence shows no Proland officer, director, or managing agent personally engaged in oppressive, fraudulent, or malicious conduct towards Plaintiff.

(Motion, 5-6.)

Some of Defendants’ issues in support of the motion for summary adjudication are not proper under California Code of Civil Procedure, section 437c(f)(1). Code of Civil Procedure, section 437c(f)(1) provides that “A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty.” Defendants’ “issues” do not each address a cause of action, affirmative defense, claim for damages, or issue of duty, given that there are many issues addressing the same causes of action. (see, e.g., Issues 1-3.) Thus, the court will address the parties’ arguments according to each cause of action of the Complaint and the Complaint’s request for punitive damages rather than by the noticed issues.

Evidentiary Objections

Defendants’ Objections to Declaration of Antonio J. Gonzalez

Objection 1: overruled.

Objection 2: sustained.

Objection 3: overruled.

Objection 4: overruled.

Objection 5: sustained.

Objection 6: sustained.

Objection 7: sustained.

Objection 8: sustained.

Objection 9: sustained.

Objection 10: sustained.

Objection 11: sustained.

Objection 12: sustained.

Objection 13: sustained.

Objection 14: sustained.

Objection 15: sustained.

Objection 16: sustained.

Objection 17: overruled.

Objection 18: sustained.

Objection 19: sustained as to everything except “Mr. Contreras and I were armed security guards.”.

Discussion

  1. Legal Authority

“The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties' pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) Pursuant to Code of Civil Procedure, section 437c, subdivision (a):

A party may move for summary judgment in any action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding. The motion may be made at any time after 60 days have elapsed since the general appearance in the action or proceeding of each party against whom the motion is directed or at any earlier time after the general appearance that the court, with or without notice and upon good cause shown, may direct…. The motion shall be heard no later than 30 days before the date of trial, unless the court for good cause orders otherwise. The filing of the motion shall not extend the time within which a party must otherwise file a responsive pleading.

(Code Civ. Proc., § 437c, subd. (a).) A motion for summary judgment may be granted “if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).)

“The motion shall be supported by affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken. The supporting papers shall include a separate statement setting forth plainly and concisely all material facts that the moving party contends are undisputed. Each of the material facts stated shall be followed by a reference to the supporting evidence. The failure to comply with this requirement of a separate statement may in the court’s discretion constitute a sufficient ground for denial of the motion.” (Code Civ. Proc., § 437c, subd. (b)(1); see also Cal. Rules of Court, rule 3.1350(c)(2) & (d).)

In analyzing motions for summary judgment, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent's claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.” (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294 (Hinsley).) Pursuant to Code Civ. Proc., § 437c, subdivision (p)(2):

A defendant or cross-defendant has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action. Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. The plaintiff or cross-complainant shall not rely upon the 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 the cause of action or a defense thereto.

(Code Civ. Proc., § 437c, subd. (p)(2).) The court must “view the evidence in the light most favorable to the opposing party and accept all inferences reasonably drawn therefrom.” (Hinesley, 135 Cal.App.4th at p. 294; Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389 [Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.”].) A motion for summary judgment must be denied where the moving party’s evidence does not prove all material facts, even in the absence of any opposition (Leyva v. Sup. Ct. (1985) 164 Cal.App.3d 462, 475) or where the opposition is weak (Salasguevara v. Wyeth Labs., Inc. (1990) 222 Cal.App.3d 379, 384, 387).

  1. Analysis

A. McDonnell Douglas Test and Summary Judgment for FEHA claims

“In analyzing an employee’s claim for unlawful discrimination under the FEHA, California courts have adopted the three-stage, burden-shifting test the United States Supreme Court established in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 [Citations.]” (Swanson v. Morongo Unified School Dist. (2014) 232 Cal.App.4th 954, 964 (Swanson).) “This so-called McDonnell Douglas test reflects the principle that direct evidence of intentional discrimination is rare, and that such claims must usually be proved circumstantially. Thus, by successive steps of increasingly narrow focus, the test allows discrimination to be inferred from facts that create a reasonable likelihood of bias and are not satisfactorily explained.” (Swanson, 232 Cal.App.4th at p. 964.)

California Courts have recognized that the McDonnell Douglas test was originally developed for use at trial, not in summary judgment proceedings. (Swanson, 232 Cal.App.4th at p. 965.) “California’s summary judgment law places the initial burden on a moving party defendant to either negate an element of the plaintiff’s claim or establish a complete defense to the claim.” (Id. at pp. 965-966.) “The burdens and order of proof therefore shift under the McDonnell Douglas test when an employer defendant seeks summary judgment. [Citations.] An employer defendant may meet its initial burden on summary judgment, and require the employee plaintiff to present evidence establishing a triable issue of material fact, by presenting evidence that either negates an element of the employee's prima facie case, or establishes a legitimate nondiscriminatory reason for taking the adverse employment action against the employee.” (Id. at p. 966.) “[T]o avoid summary judgment [on the second of these two grounds], an employee claiming discrimination must offer substantial evidence that the employer's stated nondiscriminatory reason for the adverse action was untrue or pretextual, or evidence the employer acted with a discriminatory animus, or a combination of the two, such that a reasonable trier of fact could conclude the employer engaged in intentional discrimination.” (Ibid.)

  1. First Cause of Action: Sexual Harassment under FEHA

To establish a prima facie case of harassment, an employee must show (1) she was an employee; (2) she was subjected to unwanted harassing conduct based on her protected status; (3) the harassing conduct was severe or pervasive; (4) a reasonable person in the employee's circumstances would have considered the work environment to be hostile or abusive; (5) she considered the work environment to be hostile or abusive; (6) that a supervisor engaged in the conduct and/or the employer knew or should have known of the conduct and failed to take immediate and appropriate corrective action; (7) the employee was harmed; and (8) the conduct was a substantial factor in causing the employee's harm. (Thompson v. City of Monrovia (2010) 186 Cal.App.4th 860, 876)

As of January 1, 2019, “a  single incident of harassing conduct is sufficient to create a triable issue regarding the existence of a hostile work environment if the harassing conduct has unreasonably interfered with the plaintiff’s work performance or created an intimidating, hostile, or offensive working environment.” (Government Code § 12923, subd. (b).)

Under the FEHA, an employer’s liability for the conduct of a non-supervisory employee is governed by the negligence standard. (Myers v. Trendwest Resorts, Inc. (2007) 148 Cal.App.4th 1403, 1420 (Myers).) Under this standard, an employer is liable for sexual harassment only if the employer “(a) knew or should have known of the harassing conduct and (b) failed to take immediate and appropriate corrective action.” (Id.)

Defendants contend that Plaintiff’s first cause of action for sexual harassment fails because Plaintiff cannot prove that any sexual harassment from Alvaro Contreras (“Contreras”) was sufficiently pervasive for purposes of a cause of action for sexual harassment. (Motion, 14-18.) Additionally, Defendants contend that to the extent Plaintiff’s sexual harassment cause of action is based on text messages Contreras sent Plaintiff on September 25, 2016, Defendant cannot be held liable for these messages because they occurred during off-hours and regardless, Defendants reacted to Plaintiff’s complaints by immediately terminating Contreras’ employment. (Motion, 16-18.) Defendants also contend that they cannot be held liable for Contreras’ conduct because he was not a supervisor. (Id.) Defendants rely on Bradley v. Dep’t of Corrs. & Rehab., (2008) 158 Cal. App. 4th 1612, 1631 (Bradley) for the argument that Defendants cannot be liable for the Text Messages, which were sent during off-hours.

In Bradley, Plaintiff alleges she was sexually harassed by a colleague when he helped her move into her new apartment as well as during work hours. (Bradley, supra, 158 Cal.App.4th at 1619-1621.) Although the Court of Appeal found that the employer’s actions were insufficient with regard to certain complaints, the Court of Appeal noted that it was correct for the employer not to be held liable for the harassing employee’s conduct while not at work. (Id. at 1631.)

In opposition, Plaintiff contends that the conduct by Contreras was both severe and pervasive because Contreras made sexually harassing comments and sent over 50 sexual harassing text messages on September 25, 2016. (Opposition, 10-11.) Plaintiff additionally contends that whether Contreras was a supervisor is a question of fact and, as such, Defendants’ motion for summary adjudication should be denied because Defendants could be held vicariously liable for Contreras’ actions. (Opposition, 11-12.)

It is undisputed that on September 25, 2016 between 12:44am and 2:52am, Contreras, a security guard employed by Defendants, sent a series of text messages (the “Text Messages”) to Plaintiff. (Separate Statement in Support of Motion (“DSS”), ¶ 1; Declaration of Christopher Taylor (“Taylor”), Exhibit B (Plaintiff Depo), 183:21-184:2.) Plaintiff complained about the Text Messages on September 26, 2016. (DSS ¶ 2; Taylor Decl., Exhibit C (Plaintiff Depo), 152:19-21, 163:19-164:4; Declaration of Ingrid Vasquez (“Vasquez”), ¶ 4.)

Plaintiff additionally contends that she previously complained about sexual harassment by Contreras on approximately five occasions before September 26, 2019. (Separate Statement in Support of Opposition, ¶ 2; Taylor Decl., Exhibit C (Plaintiff Depo), 150:7-13, 151:2-25.) Specifically, Plaintiff testified that she made her first complaint to Vasquez during the second week of September, and that she complained “because he make comments about me looking good in my uniform and how tight my pants look. And he was making faces like “um,” like that.” (Taylor Decl., Exhibit C (Plaintiff Depo), 15:15-19.)

On September 26, 2016, Plaintiff met with several individuals from Defendants to discuss her complaints about the Text Messages. (DSS ¶ 11; Taylor Decl., Exhibit C (Plaintiff Depo), 152:22-153:13; 184:11-17; Declaration of Debra Gregg (“Gregg”), ¶ 6.) It is undisputed that immediately after meeting with Plaintiff, Vasquez called Contreras and instructed him to come to the office the next morning around 8:00 a.m. (DSS ¶ 13; Taylor Decl., Exhibit A (Vasquez Depo), 103:14-19, 104:17-21.) Specifically, Vasquez testified as follows:

“…[A]fter that we call Alvaro right away. It was like, late in the afternoon, like maybe around 7:00p.m., 6:00 p.m. We call him in to come into the office early the next morning, and we confronted him about the messages and stuff, and he was let go on the same day.”

(Taylor Decl., Exhibit A (Vasquez Depo), 103:14-21.) Additionally, it is undisputed that on September 27, 2016 at 8:00 a.m., Vasquez and Gregg met with Contreras and explained to him that Plaintiff had complained about the Text Messages. (DSS ¶ 14; Taylor Decl., Exhibit A (Vasquez Depo), 107:1-108:24.)

Defendants contend that during the September 27, 2016 meeting, Gregg informed Contreras that he was being let go because of the Text Messages. (DSS ¶ 16; Taylor Decl., Exhibit A (Vasquez Depo), 108:17-25.) Plaintiff disputes that Contreras was let go and contends that Contreras in fact continued to work for Defendants because he showed up at Plaintiff’s residence in “approximately August of 2017 or 2018” wearing an employee jacket from Defendants. (PSS ¶ 15; Exhibits in Support of Opposition, Exhibit A (Plaintiff Depo), 38:6-8, 145:4-14, 164:17-22.) Specifically, Plaintiff testified as follows about Contreras’ employment:

Q: And have you since learned that Mr. Alvaro was terminated directly thereafter even if you didn’t learn about it until last Thursday, correct?

A: No. Because I ask one of the employees if my supervisor was still there. And they say, “Yes.”

(Exhibits in Support of Opposition, Exhibit A at 164:17-22.)

Finally, it is undisputed that Plaintiff was never sexually harassed in the workplace following Contreras’ employment termination. (DSS ¶ 19; Taylor Decl., Exhibit C (Plaintiff Depo), 185:2-4.)

Additionally, the parties dispute whether Contreras was considered a supervisor. Defendants contend that Contreras was not a supervisor as defined by FEHA because Contreras never supervised or managed Plaintiff or others and had no authority to hire, transfer, or change the employment status of Plaintiff or any other employee. (DSS ¶¶ 6-9; Vasquez Decl., ¶ 6; Taylor Decl., Exhibit C (Plaintiff Depo), 105:19-21.) Plaintiff contends that Contreras was a supervisor because he supervised Plaintiff and others, and he handed Plaintiff her cash payments. (PSS ¶¶ 6-9; Exhibits in Support of Opposition, Exhibit A (Plaintiff Depo), 6:23-7:6, 106:1-13.)

Specifically, Vasquez attests in support of Defendants’ motion that she was Contreras’ supervisor during his employment and had personal knowledge of his job duties. (Vasquez Decl. ¶ 6.) According to Vasquez, Contreras was a non-exempt hourly employee who had no authority to hire, transfer, suspend, lay off, recall, promote Plaintiff or any other employee. (Id.) According to Vasquez, Contreras never supervised Plaintiff or anyone else. (Id.) On the other hand, Plaintiff testified that her “supervisor Alvaro Contreras” called her Angela and was her supervisor “in Proland apartments.” (Exhibits in Support of Opposition, Exhibit A, 6:23-7:6.) Further, Plaintiff testified that when she had a meeting at the Centralia apartments, Gregg told her “he is your supervisor” when referring to Contreras. (Id. at 105:13-18.) Alvaro also handed her cash for the hours she worked in June 2016. (Id. at 106:1-13.)

The court finds that Vasquez was not a supervisor for purposes of determining Defendants’ liability for sexual harassment under FEHA. Defendants have submitted evidence through the Vasquez Declaration demonstrating that Vasquez does not have authority to engage in supervisory actions such as setting Plaintiff’s schedule or hiring, firing or disciplining employees in general. In opposition, Plaintiff argues that Contreras may have been a supervisor because she was told that Contreras was her supervisor. However, Plaintiff does not refute Defendants’ submitted authority regarding Contreras’ actual authority or job duties. Thus, negligence applies to determine Defendants’ liability for Contreras’ conduct pursuant to the guidance from Myers.

Viewing the evidence submitted in the light most favorable to Plaintiff, the court finds that no triable issue of material fact exists with regard to Plaintiff’s first cause of action. Specifically, it is undisputed that Plaintiff’s complaints about Contreras are limited to his comments about her “looking good” in her uniform and the Text Messages. Plaintiff does not argue or otherwise demonstrate how the comments about “looking good” contributed to a hostile work environment. With regard to the Text Messages, the parties do not dispute that Defendants responded to Plaintiff’s complaints the very next day by calling Contreras in, explaining that Plaintiff had complained, and then terminating his employment as a result of the complaint. Although Plaintiff contends that Contreras was not actually terminated because he showed up at her residence wearing a Proland jacket, the cited portions of Plaintiff’ testimony does not stand for this proposition. Additionally, Contreras showing up at Plaintiff’s residence in a Proland jacket, by itself, does not constitute evidence that Contreras still worked for Defendants.

For these reasons, Defendants’ motion is granted as to the first cause of action.

  1. Second Cause of Action: Sexual Discrimination under FEHA

To establish a prima facie case for discrimination under the FEHA, a plaintiff must show that “(1) [she] was a member of a protected class, (2) [she] was qualified for the position [she] sought or was performing competently in the position [she] held, (3) [she] suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some other circumstance suggests discriminatory motive.” (Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 355 (Guz).)

Defendants contend that they are entitled to summary adjudication on the second cause of action because Plaintiff cannot demonstrate that she was terminated on the basis of her sex and Defendants had legitimate reasons to terminate her employment because of its budget. (Motion, 18-20.)

Specifically, Defendants contend that all of Plaintiff’s supervisors are woman, as is Gregg, Defendants’ President. (DSS ¶ 20; Gregg Decl. ¶ 16; Vasquez Decl. ¶ 7.) Additionally, Gregg attests that she made the decision to hire Plaintiff and also made the decision to terminate Plaintiff. (Gregg Decl. ¶¶ 5, 15.) Specifically, Gregg attests that it was decided to terminate Plaintiff’s employment because “By Spring 2017, Centralia’s security issued ceased,” and, as such, Defendants now had “no business reasons for a security guard at Centralia.” (Gregg Decl. ¶ 15.)

Plaintiff’s does not appear to directly refute Defendants’ arguments regarding the second cause of action. Instead, Plaintiff’s factual disputes on the second cause of action appear to be almost identical to her arguments as to the third cause of action, as Plaintiff repeatedly alleges that she was retaliated against and terminated as a result of her complaints about Contreras. (see PSS ¶¶ 20-32.) However, such arguments and evidence do not demonstrate that Plaintiff suffered adverse employment action on account of her being female.

Viewing the evidence submitted in the light most favorable to Plaintiff, the court finds that no triable issue of material fact exists with regard to the second cause of action. Defendants have submitted evidence through the Gregg Declaration that Defendants decided to terminate Plaintiff’s employment because the apartment building she patrolled no longer needed a security guard. Although Plaintiff contends that her termination was not based on legitimate reasons, Plaintiff does not argue or otherwise demonstrate how her termination or reduction in hours was a result of discrimination against her on the basis of her sex.

For these reasons, Defendants’ motion is granted as to the second cause of action.

  1. Third Cause of Action: Retaliation under FEHA

Courts employ the same burden-shifting analysis for claims of retaliation under the FEHA as they do for claims of discrimination. (Yanowitz, supra, 36 Cal.4th at p. 1042.) Thus, once the employee establishes a prima facie case of retaliation, the burden shifts to the employer to provide a legitimate, nonretaliatory reason for its action. If the employer sustains its burden, the presumption of retaliation disappears, and the burden shifts back to the employee to prove intentional retaliation. (Ibid.) A prima facie case of retaliation under the FEHA consists of the following elements: (1) the plaintiff engaged in a protected activity, (2) the employer subjected the plaintiff to an adverse employment action, and (3) a causal link existed between the protected activity and the employer’s action. (Ibid.)

Defendants contend that they are entitled to summary adjudication on the third cause of action because Plaintiff cannot demonstrate a causal connection between her termination and her complaints about Contreras given that timing between any complaints and adverse employment action alone is not sufficient. (Motion, 20-21.) Additionally, Defendants contend that even if Plaintiff could establish a causal connection, Defendants had a legitimate, non-discriminatory reason for terminating Plaintiff’s employment. (Motion, 21.) Defendants rely on Manatt v. Bank of America (9th Cir. 2003) 339 F. 3d 792 (Manatt) and Cornwell v. Electra Cent. Credit Union, (9th Cir. 2006) 439 F.3d 1018, 1035 (Cornwell) for the argument that timing alone is insufficient to establish a causal connection for a retaliation claim under FEHA.

In Manatt, the Ninth Circuit Court of Appeal found that no causality existed between a Plaintiff’s complaint and subsequent adverse employment action to her because nine months elapsed between the complaint and the adverse employment action and further, the Plaintiff was given a pay raise and selected for a prestigious assignment in the interim between the complaint and the allegedly adverse employment action. (Manatt, supra, 339 F.3d at 802.) In Cornwell, the Ninth Circuit Court of Appeal found that the trial court did not err in finding that the seven months which passed between Plaintiff’s initial conversation raising his complaints and his termination was too long of a time frame for a reasonable jury to conclude that Plaintiff’s termination was as a result of retaliation. (Cornwell, supra, 439 F.3d at 1036.)

In opposition, Plaintiff contends that Defendants’ motion must be denied as to the third cause of action for retaliation because Defendants began reducing her hours and eventually terminated her “shortly” after she complained about Contreras. (Opposition, 12-13.) Plaintiff relies on Passantino v. Johnson & Johnson Consumer Products, Inc. (9th Cir. 2000) 212 F.3d 493 (Passantino) for the argument that timing alone is enough to establish causation for a retaliation claim under FEHA. Passantino held that “evidence based on timing can be sufficient to let the issue go to the jury, even in the face of alternative reasons proffered by the defendant.” (Id.)

Here, both parties agree that Plaintiff worked fluctuating hours throughout her employment. Defendants contend that Plaintiff’s hours fluctuated during her employment and that additionally, the decreases in her hours were due to legitimate business reasons. (DSS ¶ 21; Gregg Decl. ¶¶ 8-14.) For example, Gregg attests, based on her review of Plaintiff’s time records, that she worked 42 hours per week from September 19, 2016 through October 10, 2016 but only 36 hours to 42 hours for December 12, 2016 through February 22, 2017 because the need for a security guard had decreased. (Gregg Decl. ¶¶ 9, 12.) It is undisputed that Plaintiff was terminated on May 25, 2017 and was sent a letter indicating that she was terminated due to “budgetary constraints.” (DSS ¶ 31; Gregg Decl., ¶ 17, Exhibit A.) Plaintiff admits that her hours did change but contends that they were reduced after her complaint in September 2016. (see, e.g., PSS ¶ 21; Exhibits in Support of Opposition, Exhibit A (Plaintiff Depo), 21:18-23:1.) However, the cited portions of Plaintiff’s testimony only demonstrate that Plaintiff knew her hours decreased after September 2016. Plaintiff does not testify to her opinion or knowledge of why her hours decreased in this time.

Viewing the evidence submitted in the light most favorable to Plaintiff, the court finds that no triable issue of material fact exists regarding the third cause of action. Specifically, the court agrees with Defendants that Plaintiffs have failed to demonstrate a causal connection between Plaintiff’s complaint about the Text Messages or Contreras’ conduct and her eventual termination. Although none of the cases cited by the parties establish a conclusive standard for what constitutes sufficient timing between the complaint and adverse employment action for purposes of a retaliation claim, the court finds that in this instance, Plaintiff cannot establish causation. Plaintiff cannot establish causation between Plaintiff does not dispute that Defendants addressed her complaints about Contreras by speaking with him the next day and terminating him because of the Text Messages. Additionally, Plaintiff does not dispute that she was terminated on May 25, 2017, more than eight months after she complained about Contreras.

For these reasons, Defendants’ motion is granted as to the third cause of action.

  1. Fourth Cause of Action: Failure to Prevent Discrimination and Harassment under FEHA

The fourth cause of action is for failure to provide an environment free from discrimination and retaliation under Government Code section 12940. (Gov’t Code, § 12940, subd. (k).) “An actionable claim under section 12940, subdivision (k) is dependent on a claim of actual discrimination: ‘Employers should not be held liable to employees for failure to take necessary steps to prevent such conduct, except where the actions took place and were not prevented.’ [Citation]” (Scotch v. Art Inst. of California (2019) 173 Cal.App.4th 986, 1021.)

It is undisputed that Plaintiff’s fourth cause of action is derived from Plaintiff’s first through third causes of action. Having granted summary adjudication as to Defendants’ first through third causes of action, Defendants’ motion is now granted as to the fourth cause of action.

  1. Fifth Cause of Action: Wrongful Termination in Violation of Public Policy

It is undisputed that Plaintiff’s fifth cause of action is based entirely on Plaintiff’s first through third causes of action. Having granted summary adjudication as to Defendants’ first through third causes of action, Defendants’ motion is now granted as to the fifth cause of action.

  1. Sixth Cause of Action: Failure to Pay Overtime Wages

Plaintiff’s sixth cause of action alleges that she is entitled to overtime wages pursuant to Labor Code sections 510 and 1194. Pursuant to Labor Code section 1194, subdivision (a), “Notwithstanding any agreement to work for a lesser wage, any employee receiving less than the legal minimum wage or the legal overtime compensation applicable to the employee is entitled to recover in a civil action the unpaid balance of the full amount of this minimum wage or overtime compensation, including interest thereon, reasonable attorney’s fees, and costs of suit.” Further, pursuant to Labor Code section 510, “eight hours of labor constitutes a day’s work,” and any amount of work above eight hours shall be compensated “ at the rate of no less than one and one-half times the regular rate of pay for an employee.” (Labor Code § 510, subd. (a).)

Defendants contend that Plaintiff cannot prevail on her sixth cause of action because Plaintiff cannot demonstrate that Defendant employed her during June, July and August 2016, when she claims she is owed overtime. (Motion, 22-23.)

In opposition, Plaintiff contends that Defendants’ motion must be denied as to this and each of Plaintiff’s wage and hour claims because Defendants failed to keep records of Plaintiff’s work hours. (Opposition, 14-16.) As such, Plaintiff contends that her own testimony about hours she worked is sufficient to defeat Defendants’ motion for summary adjudication as to each wage and hour claim. (Id.)

The parties do not dispute that neither party has documentary evidence showing payments made to Plaintiff in June through August 2016. (DSS ¶¶ 41-42.)

Gregg attests in support of Defendants’ motion that Defendants’ records include an application for employment from Plaintiff dated September 16, 2016 and a listed start date of September 19, 2016. (Gregg Decl., Exhibit A.) Gregg further attests that Defendants have no records of making any payments to Plaintiff for June through August 2016. (Id.) However, Plaintiff disputes that she did not work for Plaintiff in June through August 2016 and contends that she recalls working for cash payments during this time. (PSS ¶¶ 41-42; Exhibits in Support of Opposition, Exhibit A (Plaintiff Depo), 21:18 – 23:1, 112:12-18.) Specifically, Plaintiff testified that she recalled working for Defendants in June 2016 from 3:00 a.m. to 3:00 p.m., but that after September 2016, her hours were cut to 6:00 p.m. to 12:00 p.m. (Exhibits in Support of Opposition, Exhibit A (Plaintiff Depo) 21:18-23:1.)

Viewing the evidence submitted in the light most favorable to Plaintiff, the court finds that a triable issue of material fact exists with regard to Plaintiff’s sixth cause of action. Defendants’ argue that they are entitled to summary adjudication on this cause of action because Plaintiff cannot demonstrate that she was employed by Defendants prior to September 2016 as no records exist to demonstrate Plaintiff’s employment. In opposition, Plaintiff submits admissible evidence through her own testimony that she recalled working for Defendants in at least June 2016. This constitutes a triable issue of material fact with regard to whether Plaintiff was employed during the June through August 2016 period where she claims she was owed overtime wages.

For these reasons, Defendants’ motion is denied as to the sixth cause of action.

  1. Seventh and Eighth Cause of Action: Failure to Provide Meal and Rest Periods

Plaintiff’s seventh and eighth causes of action for failure to provide meal and rest periods are based on Labor Code sections 226.7 and 512.

Pursuant to Labor Code section 226.7, subdivision (b), an employer shall not require an employee “to work during a meal or rest or recovery period.” If an employer does not provide an employee a meal or rest or recovery period, the employer “shall pay the employee one additional hour of pay at the employee’s regular rate of compensation for each workday that the meal or rest or recovery period is not provided.” (Labor Code § 226.7, subd. (c).) Further, pursuant to Labor Code section 512, an employer is to provide a 30-minute meal period for every 5 hours of work.

Defendants contend that summary adjudication as to both the seventh and eighth causes of action is warranted because Plaintiff has no evidence that she was prevented from taking meal or rest periods. (Motion, 23-24.)

Specifically, Defendants contend that they maintained a “Proland Management Employee Handbook,” provided to employees at hire, which contained the following meal and rest period policy:

“Employees are provided with a one-half (1/2) hour meal period, to be taken approximately in the middle of the workday. Employees are allowed ten-minute rest periods for every four hours of work or major portion thereof. Your supervisor will schedule your meal and rest periods. You are expected to observe your assigned working hours and the time allowed for meal and rest periods. Do not leave the premises during your rest period and do not take more than ten minutes for each rest period. You may leave the premises on your meal period.”

(DSS ¶ 47; Vasquez Decl. ¶ 3, Exhibit A.) Additionally, Vasquez attests that since Plaintiff worked away from Defendants’ offices, she had “full autonomy” to schedule her meal and rest periods. (Vasquez Decl. ¶ 3.)

Plaintiff disputes that Defendants followed their own meal and rest period policy and that Defendants did not interfere with her meal periods. (PSS ¶ 47.) Specifically, Plaintiff testified as follows with regard to her meal and rest periods:

Q: Did anybody ever tell you at Proland that you were not allowed to take a rest break?

A: Yes.

Q: Who was that?

A: Ingrid Vasquez.

Q: When did she tell you that?

A: She told me since the first day that I start in January.

Q: So Ingrid said you were never allowed to take a rest break?

A: Yes.

Q: Did she tell you why?

A: Yes.

Q: Why?

A: Because it was dangerous for me to stop. It was too much drugs, and shooting, and broke intos; that I have to be moving around, and I couldn’t go out to get my food. I have to bring my food and eat it in the truck --.

(Exhibits in Support of Opposition, Exhibit A (Plaintiff Depo at 117:20-118:13.)

Viewing the evidence submitted in the light most favorable to Plaintiff, the court finds that triable issues of material fact exists regarding Plaintiff’s sixth cause of action. Specifically, while Defendants contend that they had a policy allowing for meal and rest periods and that it was allegedly followed, Plaintiff has submitted admissible evidence demonstrating that it was not followed by Vasquez when she testified that Vasquez told her not to take rest periods and to take meal periods in her vehicle. Thus, triable issues of material fact exist with regard to whether Plaintiff was prevented from taking meal and/or rest periods.

For these reasons, Defendants’ motion is denied as to the seventh and eighth causes of action.

  1. Ninth Cause of Action: Failure to Pay All Wages Earned (Labor Code § 204)

Plaintiff’s ninth cause of action alleges that Defendants are liable under Labor Code section 204 because Defendants failed to pay Plaintiff for all wages earned, including overtime wages, “wages for travel time,” and premium wages for missed meal and rest periods. (Complaint ¶¶ 83-86.)

Defendants contend that Plaintiff’s ninth cause of action must fail because Labor code section 204 does not allow for a private right of action. Defendants rely on Noe v. Superior Court (2015) 237 Cal. App. 4th 316, 335-37 (Noe) for this argument. Noe articulated a general principle that, where a Labor Code provision “provides for a “civil penalty” and contains no language suggesting the penalty is recoverable directly by employees, no private right of action is available other than through a PAGA claim.” (Id. at 339.) However, Noe analyzed Labor Code section 226.8 rather than Labor Code section 204. The remaining cases cited by Defendants are not published and, as such, do not constitute binding authority for this court. Further, Defendants acknowledge in a footnote that effective January 1, 2020, Labor Code section 204 was amended to permit private causes of action, although there is no language indicating that the amendment applies retroactively. (Motion, 24, fn. 2.)

Plaintiff’s opposition does not address Defendants’ argument. Additionally, neither the moving nor opposing separate statements submit evidence regarding this cause of action.

Defendants motion is denied as to this cause of action. Defendants’ cited authority does not establish as a matter of law that there is no private cause of action under Labor Code section 204. Further, because Plaintiff’s ninth cause of action is based at least in part on Plaintiff’s causes of action for failure to pay overtime wages and failure to provide meal and rest periods, the court finds that triable issues of material fact exist with regard to the ninth cause of action for the same reasons as stated with regard to the sixth through eighth causes of action.

  1. Eleventh Cause of Action: Failure to Furnish Accurate Wage Statements

Defendants contend that Plaintiff’s eleventh cause of action must fail because it is entirely derivative of Plaintiff’s sixth through eighth causes of action, which also must fail. (Motion, 25.) Plaintiff does not dispute that her eleventh cause of action is derivative of her sixth through eighth causes of action.

Having found that triable issues of material fact exist with regard to the sixth through eighth causes of action, the court now finds that triable issues of material fact exist with regard to the eleventh cause of action for the same reasons stated above.

For these reasons, Defendants’ motion is denied as to the eleventh cause of action.

  1. Twelfth Cause of Action: Failure to Maintain Required Records

Plaintiff’s twelfth cause of action is based on Labor Code section 226 and 1174.

Pursuant to Labor Code section 226, an employer is to furnish to its employees, “at the time of each payment of wages,” a statement that accurately reflects each employee’s hours worked and wages paid. (Labor Code § 226, subd. (a).) Further, pursuant to Labor Code section 1174, “Every person employing labor in this state” shall furnish reports to the Labor Commission, at its request, reflecting the hours worked by its employees and the wages paid to them.

Defendants contend that Plaintiff’s twelfth cause of action for failure to maintain required records fails because under Labor Code section 1174, no private right of action exists. (Motion, 25-26.) Defendants rely on Cleveland v. Groceryworks.com, LLC, (N.D. Cal. 2016) 200 F. Supp. 3d 924, 958 (Cleveland) for this argument. Cleveland holds that no private right of action exists under Labor Code section 1174 as “private rights of action for civil penalties under the Labor Code generally arise under the California Private Attorney General Act (“PAGA”), not under the Labor Code directly.” (Id.)

Neither party submits facts regarding this issue in their moving or opposing separate statement.

The court finds that triable issues of material fact exist as to Plaintiff’s twelfth cause of action. Although Plaintiff has not directly opposed Defendants’ argument as to the twelfth cause of action, Defendants’ argument only centers on Labor Code section 1174. However, the twelfth cause of action also indicates that it is based on Labor Code section 226, which Defendants do not address. Thus, Defendants have failed to meet their burden as the moving party.

For these reasons, Defendants’ motion is denied as to the twelfth cause of action.

  1. Thirteenth Cause of Action: Failure to Pay All Wages Upon Discharge

Defendants contend that Plaintiff’s thirteenth cause of action must fail because it is entirely derivative of Plaintiff’s sixth through eighth causes of action, which also must fail. (Motion, 25.) Plaintiff does not dispute that her thirteenth cause of action is derivative of her sixth through eighth causes of action.

Having found that triable issues of material fact exist with regard to the sixth through eighth causes of action, the court now finds that triable issues of material fact exist with regard to the thirteenth cause of action for the same reasons stated above.

For these reasons, Defendants’ motion is denied as to the thirteenth cause of action.

  1. Prayer for Punitive Damages

Plaintiff may recover damages “in an action from breach “not arising from contract” if Plaintiff proves by clear and convincing evidence that Defendant acted with malice, oppression, or fraud. (Civ. Code, § 3294 subd. (a).) “Malice means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.”  (Civ. Code, § 3294 subd. (c)(1).)  “Oppression’ means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.”  (Civ. Code, § 3294 subd. (c)(2).)  “Fraud means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.”  (Civ. Code, § 3294, subd. (c)(3).)  A plaintiff’s “conclusory characterization of defendant’s conduct as intentional, willful and fraudulent is a patently insufficient statement of ‘oppression, fraud, or malice, express or implied, within the meaning of section 3294.”  (Brousseau v. Jarrett (1977) 73 Cal.App.3d 864.)

Defendants contend that Plaintiff’s prayer for punitive damages must be dismissed because Plaintiff cannot demonstrate that Defendants acted with oppression, fraud or malice in connection with their response to her complaints about Contreras. (Motion, 26.) Specifically, Defendants contend that admissible evidence demonstrates that Plaintiff’s complaint was taken seriously and responded to promptly. (Id.)

In opposition, Plaintiff contends that Defendants motion must be denied as to Plaintiff’s prayer for punitive damages because Plaintiff has sufficiently pled a number of causes of action under the FEHA, all of which would entitle Plaintiff to punitive damages if proven. (Opposition, 16.) Plaintiff also contends that the cause of action for wrongful discharge in violation of public policy would entitle her to punitive damages. (Id.)

As discussed above, the court found that no triable issue of material fact exists with regard to Plaintiff’s first through fifth causes of action for sexual discrimination, harassment, and wrongful termination. Thus, because Plaintiff’s only argument in opposition to Defendants’ motion is that Plaintiff’s first through fifth causes of action supports punitive damages, Plaintiff’s argument fails. Defendants have submitted admissible evidence demonstrating that they responded promptly to Plaintiff’s complaint about Contreras and that they terminated Plaintiff due to budget constraints. As the court finds that no triable issue of material fact exists with regard to Plaintiff’s entitlement to punitive damages.

For these reasons, Defendants’ motion is granted with respect to the Complaint’s prayer for punitive damages.

Conclusion

Defendants’ motion is granted with respect to the first through fifth causes of action and the Complaint’s prayer for punitive damages. Defendants’ motion is otherwise denied. Defendants are to give notice.