This case was last updated from Los Angeles County Superior Courts on 09/09/2020 at 17:56:53 (UTC).

REZA RAZZAGHIPOUR ET AL VS WELLS FARGO BANK NA ET AL

Case Summary

On 08/31/2017 REZA RAZZAGHIPOUR filed a Labor - Wrongful Termination lawsuit against WELLS FARGO BANK NA. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are RICHARD E. RICO and JON R. TAKASUGI. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****4303

  • Filing Date:

    08/31/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Labor - Wrongful Termination

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

RICHARD E. RICO

JON R. TAKASUGI

 

Party Details

Plaintiffs and Petitioners

RAZZAGHIPOUR REZA

RAZZAGHIPOUR MARLA

Defendants and Respondents

DOES 1 TO 30

LANGAN JENNIFER

WELLS FARGO BANK N.A.

Not Classified By Court

DAVID DICRISTOFARO

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

SHIRAZI EMANUEL S. ESQ.

SHIRAZI EMANUEL SOLEIMAN ESQ.

BARRERA PATRICIO TOMAS

Defendant and Respondent Attorneys

PERRY STEVEN M. ESQ.

HEINICKE MALCOLM A.

O'BRIEN THOMAS P

HEINICKE MALCOLM ALEXANDER

PERRY STEVEN MCCALL ESQ.

BERN MARTIN DOUGLAS

 

Court Documents

Case Management Statement

7/16/2020: Case Management Statement

Case Management Statement

7/9/2020: Case Management Statement

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER RE: STIPULATION AND ORDER REGARDING BRIEFING SCHE...) OF 06/10/2020

6/10/2020: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER RE: STIPULATION AND ORDER REGARDING BRIEFING SCHE...) OF 06/10/2020

Minute Order - MINUTE ORDER (COURT ORDER RE: STIPULATION AND ORDER REGARDING BRIEFING SCHE...)

6/10/2020: Minute Order - MINUTE ORDER (COURT ORDER RE: STIPULATION AND ORDER REGARDING BRIEFING SCHE...)

Stipulation and Order - STIPULATION AND ORDER REGARDING BRIEFING SCHEDULE FOR AND HEARING ON DEFENDANT WELLS FARGO BANK, N.A.S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, FOR SUMMARY ADJUDICA

6/10/2020: Stipulation and Order - STIPULATION AND ORDER REGARDING BRIEFING SCHEDULE FOR AND HEARING ON DEFENDANT WELLS FARGO BANK, N.A.S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, FOR SUMMARY ADJUDICA

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER RE: MANDATORY CONTINUANCE) OF 04/23/2020

4/23/2020: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER RE: MANDATORY CONTINUANCE) OF 04/23/2020

Minute Order - MINUTE ORDER (COURT ORDER RE: MANDATORY CONTINUANCE)

4/23/2020: Minute Order - MINUTE ORDER (COURT ORDER RE: MANDATORY CONTINUANCE)

Minute Order - MINUTE ORDER (STATUS CONFERENCE)

1/6/2020: Minute Order - MINUTE ORDER (STATUS CONFERENCE)

Motion to Compel Further Discovery Responses

2/15/2019: Motion to Compel Further Discovery Responses

Declaration - DECLARATION PLAINTIFFS APPENDIX OF DECLARATIONS AND EXHIBITS IN SUPPORT OF OPPOSITION TO DEFENDANTS MOTION FOR SUMMARY JUDGMENT OR SUMMARY ADJUDICATION VOLUME 1 OF 2

7/13/2020: Declaration - DECLARATION PLAINTIFFS APPENDIX OF DECLARATIONS AND EXHIBITS IN SUPPORT OF OPPOSITION TO DEFENDANTS MOTION FOR SUMMARY JUDGMENT OR SUMMARY ADJUDICATION VOLUME 1 OF 2

Notice - NOTICE PLAINTIFF'S NOTICE OF CASE REASSIGNMENT

3/5/2020: Notice - NOTICE PLAINTIFF'S NOTICE OF CASE REASSIGNMENT

DEFENDANT WELLS FARGO BANK LTD.'S ANSWER TO UNVERIFIED FIRST AMENDED COMPLAINT

2/26/2018: DEFENDANT WELLS FARGO BANK LTD.'S ANSWER TO UNVERIFIED FIRST AMENDED COMPLAINT

Minute Order -

3/28/2018: Minute Order -

Substitution of Attorney -

10/3/2018: Substitution of Attorney -

Request for Dismissal

1/8/2019: Request for Dismissal

Motion to Compel Further Discovery Responses

2/22/2019: Motion to Compel Further Discovery Responses

Exhibit List

3/13/2019: Exhibit List

Declaration - DECLARATION OF MARTIN D. BERN IN SUPPORT OF WELLS FARGO'S OPPOSITION

4/24/2019: Declaration - DECLARATION OF MARTIN D. BERN IN SUPPORT OF WELLS FARGO'S OPPOSITION

160 More Documents Available

 

Docket Entries

  • 01/06/2021
  • Hearing01/06/2021 at 08:30 AM in Department 17 at 111 North Hill Street, Los Angeles, CA 90012; Trial Setting Conference

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  • 09/04/2020
  • DocketObjection (to Defendants Proposed Judgment); Filed by Marla Razzaghipour (Plaintiff); Reza Razzaghipour (Plaintiff)

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  • 09/04/2020
  • DocketProof of Service (not Summons and Complaint); Filed by Wells Fargo Bank N.A. (Defendant)

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  • 09/04/2020
  • DocketResponse (to Plaintiffs' Objection to Proposed Judgment); Filed by Wells Fargo Bank N.A. (Defendant)

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  • 09/03/2020
  • DocketProof of Service (not Summons and Complaint); Filed by Wells Fargo Bank N.A. (Defendant)

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  • 09/03/2020
  • DocketRequest (for Entry of Judgment in Favor of Wells Fargo Bank); Filed by Wells Fargo Bank N.A. (Defendant)

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  • 09/01/2020
  • Docketat 4:18 PM in Department 17, Jon R. Takasugi, Presiding; Ruling on Submitted Matter

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  • 09/01/2020
  • DocketCertificate of Mailing for ((Ruling on Submitted Matter) of 09/01/2020); Filed by Clerk

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  • 09/01/2020
  • DocketMinute Order ( (Ruling on Submitted Matter)); Filed by Clerk

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  • 07/28/2020
  • Docketat 4:45 PM in Department 17, Jon R. Takasugi, Presiding; Non-Appearance Case Review (to allow counsel for defendant to connect to LA CourtConnect)

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258 More Docket Entries
  • 10/20/2017
  • DocketDECLARATION OF CRAIG A. LAVOIE IN SUPPORT OF DEFENDANTS' MOTION TO STRIKE ALLEGATIONS OF PLAINTIFFS' COMPLAINT

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  • 10/13/2017
  • DocketDEFENDANTS WELLS FARGO BANK, N.A.,AND JENNIFER LANGAN'S NOTICE OF MOTION AND SPECIAL MOTION TO STRIKE PLAINTIFFS' DEFAMATION CLAIM PURSUANT TO C.C.P. SECTION 425.16; MEMORANDUM OF POINTS AND AUTHORIETIES IN SUPPORT THEREOF; ETC.

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  • 10/13/2017
  • DocketMotion to Strike; Filed by WELLS FARGO BANK N.A. (Defendant); JENNIFER LANGAN (Defendant)

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  • 09/13/2017
  • DocketPROOF OF SERVICE SUMMONS

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  • 09/13/2017
  • DocketProof-Service/Summons; Filed by REZA RAZZAGHIPOUR (Plaintiff)

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  • 08/31/2017
  • DocketSUMMONS

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  • 08/31/2017
  • DocketComplaint; Filed by REZA RAZZAGHIPOUR (Plaintiff); MARLA RAZZAGHIPOUR (Plaintiff)

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  • 08/31/2017
  • DocketCOMPLAINT FOR: 1. RETALIATION IN VIOLATION OF CA LABOR CODE 1102.5 ;ETC

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  • 02/06/2017
  • DocketOrder Appointing Court Approved Reporter as Official Reporter Pro Tempore; Filed by Judge

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  • 01/27/2017
  • DocketAmendment to Complaint; Filed by Plaintiff/Petitioner

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Tentative Rulings

Case Number: BC674303    Hearing Date: July 28, 2020    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

REZA RAZZAGHIPOUR, et al.

vs.

WELLS FARGO BANK, N.A.; JENNIFER LANGAN

Case No.: BC674303

Hearing Date: July 28, 2020

Defendant’s motion for summary judgment is DENIED. Summary adjudication is GRANTED in part, DENIED in part:

- Summary adjudication is GRANTED as to the sixth, seventh, eighth, and ninth causes of action.

- Summary adjudication is DENIED as to the first, second, third, fifth.

On August 31, 2017, Plaintiffs Reza and Marla Razzaghipour (collectively, Plaintiffs) initiated this action against Defendants Wells Fargo Bank, N.A. (Wells Fargo) and Jennifer Langan. On December 29, 2017, Plaintiffs filed the operative First Amended Complaint (FAC) against the same Defendants ,and asserts claims for: (1) retaliation in violation of Lab. C. § 1102.5; (2) Retaliation in violation of FEHA; (3) wrongful termination; (4) defamation;[1] (5) violation of Business & Prof. C. § 17200; (6) failure to provide personnel files; (7) failure to provide payroll files; (8) gender harassment; and (9) intentional infliction of emotional distress (IIED).  

On August 1, 2018, Defendant David Discristofaro was dismissed from the action, with prejudice.

Defendant Wells Fargo (Defendant) now moves for summary judgment, or in the alternative, summary adjudication, of Plaintiffs’ FAC.

Legal Standard

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

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

Factual Background

Plaintiffs were Regional Presidents responsible for overseeing Wells Fargo’s operations in two large Southern California territories. The instant action arises out of their period of employment with, and eventual termination by, Wells Fargo.

Discussion

I. Retaliation in violation of Labor Code section 1102.5

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

Labor Code section 1102.5 provides:

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

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

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

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

Here, Defendant submitted evidence to show that Plaintiffs have failed to show a causal connection between their alleged complaints and their termination, and to show that it terminated Plaintiffs for legitimate, non-discriminatory reasons.

Plaintiffs’ job duties included the responsibility to “establish a culture” among team members in their territory to “conduct business with the public in an ethical manner.” (UF Nos. 4, 66.) In 2016, Defendant undertook an internal investigation of historic simulated funding activity in Arizona and Southern California. (UF No. 7.) As part of this effort, Wells Fargo’s Internal Investigations group conduct interviews with approximately 200 team members, including Plaintiffs, regarding historic simulated funding activity in Arizona and Southern California. (UF No. 8.) The investigation revealed that there were Regional Presidents and Area Presidents who had, “communicated an environment of intense sales pressure, of stack ranking, of best practices that were in the form of multiple accounts for customers.” (UF No. 10.) The investigation further revealed that Plaintiffs had, “utilized stack ranking reports, had given their team members messaging that they had to be “#1,” and had pressured team members to establish duplicate accounts for customers.” (UF No. 11.) Ms. Mack, the new head of Defendant’s Community Bank in summer 2016, terminated Plaintiffs based on the information received from this investigation. (UF No. 14.)

Defendant has made an adequate showing that the reason for Plaintiffs’ termination was their cultivation of a toxic, high-pressure sales environment, their failure to effectively manage sales quality in their regions, and their prioritization of sales over customer needs. In light of the foregoing, Defendant has met its burden of showing that it had a legitimate, non-retaliatory reason for terminating Plaintiffs’ employment. The burden shifts to Plaintiffs to show that this reason was a pretext – i.e., that Plaintiffs’ termination was at least in part motivated by the fact that they had previously complained about improper employee practices.

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

Plaintiffs submitted evidence that Ms. Mack, the individual responsible for terminating Plaintiffs, stated that she spoke with Mr. Glen Najvar, the investigator responsible for interviewing Plaintiffs, regarding her reasons for terminating Plaintiffs. However, Plaintiff also submitted evidence that Mr. Najvar denies speaking with Ms. Mack about Plaintiffs prior to termination, and stated that he did not make any recommendations regarding Plaintiffs. (PUMF Nos. 55-60.) Mr. Najvar stated that he did not know the factors that were considered when Defendant terminated Plaintiffs. (PUMF Nos. 58-60.) Plaintiffs also submitted evidence that Defendant did not follow its internal termination policies with respect to Plaintiffs. Specifically, Defendants did not put Plaintiffs’ terminations before the Board for a vote, nor did Defendant complete a termination checklist of follow progressive discipline procedures for Plaintiffs. Taken together, this evidence creates inconsistencies in Defendant’s proffered explanation for Plaintiffs’ termination as arising out of the results of Mr. Najvar’s investigation. (Moore, supra, 248 Cal.App.4th at pp. 235-236.)

Moreover, Plaintiffs have submitted evidence which shows that Defendants had a retaliatory motive for terminating them. This conclusion is based on the following evidence:

As to Plaintiff Reza Razzaghipour:

· In 2013, Mr. Razzaghipour submitted a complaint via email that bankers were changing customer records, and disclosed information concerning unlawful activity which he believed violated federal banking laws and Defendant’s policies. (PUMF No. 33.) This complaint was sent to the Defendant’s senior leadership, and was a catalyst for the broader investigation that later ensued. (PUMF Nos. 37, 42-44.)

· During his investigation interview, the simulating funding statistics report for Mr. Razzaghipour’s region was intentionally reformatted to make it appear that he was responsible for the higher simulated funding problems in his region. (PUMF No. 49.)

· Within four months of being interviewed, at which time he was told he would be protected from retaliation, Mr. Razzaghipour was terminated without cause. (PUMF No. 61.)

As to Plaintiff Marla Razzaghipour:

· In 2016, Ms. Razzaghipour reported illegal sales practices to Senior Executives. (PUMF No. 63.)

· In 2016, Ms. Razzaghipour filed a complaint with HR Director against Chief Financial Officer David DiCristofaro. (PUMF No. 67.)

· On February 6, 2017, Ms. Razzaghipour filed a formal complaint with Defendant’s Ethic Line of discrimination/harassment.

· On July 29, 2016, Ms. Razzaghipour approached Mr. DiCristofaro, during which time “[Mr. DiCristofaro] threatened [Ms. Razzaghipour] that if [Ms. Razzaghipour] continued to complain that it would be career suicide for [Ms. Razzaghipour].” (PUMF 71.)

· Ms. Razzaghipour’s February 6 complaint prompted interviews on March 1 and 2, 2017. A determination of ‘no fact finding” was made on March 3, 2017. Ms. Razzaghipour was terminated on March 6, 2017, before the investigator assigned to her complaint had completed the investigation. (PUMF No. 98.)

· Defendant issued the following response to Plaintiffs’ form interrogatory request for the identifies of any person(s) who “provided any information relied upon in the termination:[2]

o “( c ) The following individuals... provided information that was considered in the decision to terminate Plaintiff’s employment: David DiCristofaro.” (PUMF 115.)

This evidence of retaliatory motive, compounded with Plaintiffs’ evidence that Ms. Mack did not discuss Plaintiffs, or the investigation’s findings as they concerned Plaintiffs, with Mr. Najvar, the individual leading the investigation, is sufficient to create a triable issue of material fact as to whether Plaintiffs’ termination was actually based on the results of Mr. Najvar’s investigation. (Light, supra, 14 Cal.App.5th at p. 94.)

Accordingly, summary adjudication of the first cause of action is denied.

II. Retaliation in violation of FEHA

To establish a prima facie case of retaliation under FEHA, Plaintiff must show (1) he engaged in a “protected activity”; (2) the employer subjected the employee to an adverse employment action; and (3) a causal link existed between the protected activity and the employer’s action. (Jones v. Department of Corrections & Rehabilitation (2007) 152 Cal.App.4th 1367, 1380.)

As set forth above, Plaintiffs have submitted evidence that creates a triable issue of material fact as to whether Defendant had a retaliatory motive for terminating Plaintiffs, such that its proffered reasons for termination are pretextual.

Accordingly, summary adjudication of the second cause of action is denied.

III. Wrongful termination

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, 1234-1235.)

Defendant notes that this claim is derivative of Plaintiff’s retaliation claims. As set forth above, Plaintiffs have submitted evidence that creates a triable issue of material fact as to whether Defendant had a retaliatory motive for terminating Plaintiffs, such that its proffered reasons for termination are pretextual.

Accordingly, summary adjudication of the third cause of action is denied.

IV. Violation of Business and Professions Code section 17200

Defendant notes that this claim is derivative of Plaintiff’s retaliation claims. As set forth above, Plaintiffs have submitted evidence that creates a triable issue of material fact as to whether Defendant had a retaliatory motive for terminating Plaintiffs, such that its proffered reasons for termination are pretextual.

Accordingly, summary adjudication of the fifth cause of action is denied.

V. Failure to provide personnel files

Defendant argues that Plaintiff cannot establish a claim for failure to provide personnel files because neither Plaintiff submitted a request for inspection.

Labor Code section 226 provides:

(b) An employer that is required by this code or any regulation adopted pursuant to this code to keep the information required by subdivision (a) shall afford current and former employees the right to inspect or receive a copy of records pertaining to their employment, upon reasonable request to the employer. The employer may take reasonable steps to ensure the identity of a current or former employee. If the employer provides copies of the records, the actual cost of reproduction may be charged to the current or former employee.

Here, Defendant submitted evidence that Plaintiffs did not submit a request to inspect their personnel files, but rather it was Plaintiffs’ counsel that made the request. (UGF No. 220). Because Labor Codes section 226 only affords a right of inspection to a “current or former employee,” and not an employee’s representative, Plaintiff cannot state a claim for a section 226 violation. The Court agrees—as Plaintiff’s section 1198.5 demonstrates, the legislature clearly contemplated the likelihood of attorney requests for inspection on behalf of their clients. The absence of any language regarding representatives in section 226 evinces an intentional choice to exclude current or former employee’s representatives from the corresponding right to inspect.

The only evidence submitted by Plaintiffs in opposition is the Shizari Declaration which states that the employment records were sought for the purposes of pre-litigation discovery, and that the delay in obtaining the records caused delays in litigation. (PUMF No. 201-203.) Plaintiffs submitted no evidence to address Defendant’s argument that Labor Code section 226 requires that a request for personnel records be made by either a current or former employee, rather than by a representative.

Because the submitted evidence shows that only Plaintiff’s representative, but not Plaintiffs themselves, made a request for their personnel records, Plaintiffs have failed to state a prima facie claim for a violation of Labor Code section 226.

Accordingly, summary adjudication of the sixth cause of action is granted.

VI. Failure to provide payroll files

Labor Code section 1198.5 provides:

(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

(d) An employer is required to comply with only one request per year by a former employee to inspect or receive a copy of his or her personnel records.

(e) The employer may take reasonable steps to verify the identity of a current or former employee or his or her authorized representative. For purposes of this section, “representative” means a person authorized in writing by the employee to inspect, or receive a copy of, his or her personnel records.

Here, Defendant submitted evidence that while Plaintiffs’ counsel submitted a respect for inspection under section 1198.5, the request did not include a written authorization as required by subdivision (e). (UF No. 221.)

In opposition, Plaintiffs relied on the same evidence submitted to support their fifth cause of action.

Because the submitted evidence shows that counsel’s request to inspect payroll files did not include a written authorization from Plaintiffs, Plaintiffs have failed to state a prima facie claim for a violation of Labor Code section 1198.5.

Accordingly, summary adjudication of the seventh cause of action is granted.

VII. Gender Harassment

Defendant argues Plaintiffs cannot establish a claim for gender harassment under Government Code section 12940 because Plaintiffs cannot establish that the harassment was based on her gender, cannot establish an causal connection between the alleged harassing conduct and Plaintiffs’ termination, and cannot establish that the conduct complained of was so pervasive or severe as to alter the conditions of employment.

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

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

In Mokler v. County of Orange (2007) 157 Cal.App.4th 121, 145, the Court found that Plaintiff had failed to establish a hostile work environment claim, writing:

Following established precedent, we conclude these acts of harassment fall short of establishing “a pattern of continuous, pervasive harassment” (Fisher, supra,  necessary to show a hostile working environment under FEHA. Norby did not supervise Mokler Mokler's Mokler Mokler's

Defendant submitted the following evidence:

· Defendant submitted evidence to show that Mr. DiCristofaro never made any sexually suggestive comments towards Ms. Razzaghipour, nor did he engage in any sexually suggestive conduct. (UF Nos. 227-235.)

· Defendant argues Plaintiff has submitted no evidence to show that Mr. DiCristofaro’s disapproval of her management style was based on her gender. Moreover, Defendant submitted evidence that Mr. DiCristofaro did not provide any of six direct reports with narrative performance reviews in 2015. (UF No. 242.)

· Defendant argues Plaintiff has submitted no evidence to show that Mr. DiCristofaro engaged in a pattern of harassing conduct against women employees generally. Defendant submitted evidence that when asked to identify employees who received favorable treatment from Mr. DiCristofaro, Ms. Razzaghipour listed five women. (UF No. 241.)

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

In opposition, Plaintiff submitted the following evidence to gender harassment by Mr. DiCristofaro:

· On July 13, 2016, Marla complained to Human Resources Director Susan Nelson about DiCristofaro’s age/gender discrimination and harassment in the form of “favoritism” and a preference for working with younger females (Sandy Walia, Nicha Tabrizi, Evelin Martinez, Mina Gill, etc.) over Marla and other older women employees, such as Patricia Gonzalez and Kristie Laux. (PUMF No. 67.)

· Kristie Laux told Wells’ investigator that DiCristofaro retaliated against her “for being honest” when she complained about sales practices, by threatening her job and then forcing her to commute 65 miles in order to keep her job at a new location. (PUMF No. 89)

· Patricia Gonzalez complained that DiCristofaro “treats females over a certain age differently.” (PUMF No. 90.)

· Patricia Gonzalez told a Wells Fargo investigator that DiCristofaro “wants to work with a younger female.. that he can groom.” “[I]f he has a middle aged female with experience, it’s not who he prefers to work with.” (PUMF No. 91.)

Taken together, this evidence is insufficient to disclose the existence of a triable issue of fact as to whether Ms.Razzaghipour was harassed based on her gender. Plaintiffs’ only evidence submitted to link Mr. DiCristifano’s conduct to Ms. Razzaghipour’s gender is a single individual’s comments that Mr. DiCristifano did not “prefer” to work with middle aged women, and that he treated them “differently.” This link is simply too attenuated—evidence that Mr. Cristifiano may have preferred younger women to older women is insufficient as a matter of law to show that Mr. Cristifano conduct towards Ms. Razzaghipour was based on her gender.

Based on the foregoing, summary adjudication of the eighth cause of action is granted.

VIII. IIED

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

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

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

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

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

Here, Plaintiffs’ IIED cause of action is based on allegations of retaliation, harassment, and Labor Code section violations.

Here, the Court granted summary adjudication as to the harassment and Labor Code section violation causes of action. Because Plaintiffs’ submitted evidence was insufficient to establish those causes of action, it is necessarily insufficient to support an IIED cause of action. As such, the Court analyzes the IIED cause of action under the evidence submitted to support Plaintiffs’ retaliation causes of action, for which the Court denied summary adjudication.

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

The Court concludes that Plaintiffs’ IIED action, which revolves around allegations that Plaintiffs suffered emotional distress after being improperly terminated for retaliatory motives, arises out of the course of employment. “Under the compensation bargain, distress that arises in the course of employment is exactly the kind of distress that is compensable only through workers’ compensation. (Singh v. Southland Stone, U.S.A., Inc. (2010) 186 Cal.App.4th 338, 367.)  This is true even when the complained-of conduct was “manifestly fair or outrageous.” (Ibid.)

Based on the foregoing, summary adjudication of the ninth cause of action is granted.

It is so ordered.

Dated: July , 2020

Hon. Jon R. Takasugi

Judge of the Superior Court

 

 

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

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


[1] Plaintiffs’ fourth cause of action was dismissed by the Court, pursuant to its ruling to Defendant’s anti-SLAPP motion on February 6, 2018.

[2] Apparently, Defendant served a “corrected” verified response to this interrogatory in April 2020, after its motion for summary judgment had been filed, attempting to remove Mr. DiCristofaro’s name from its sworn interrogatory response. This discrepancy only further casts doubt on Defendant’s proffered reasons for termination, in that is unclear why Defendant would have initially confirmed Mr. DiCristofaro’s involvement in Ms. Razzaghipour’s termination only to later to retract this supposedly verified response.