On 11/14/2017 VIOLETA ALCARAZ filed a Labor - Wrongful Termination lawsuit against KDW AUTOMOTIVE INC. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The case status is Pending - Other Pending.
Pending - Other Pending
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
DOES 1 TO 20
KDW AUTOMOTIVE INC.
LEXUS OF GLENDALE
KDW AUTOMOTIVE INC. DBA LEXUS OF GLENDALE
FOLINSKY MARNI B.
LENKOV JEFFREY M
3/9/2018: Proof of Service
7/3/2018: NOTICE RE: CONTINUANCE OF HEARING
1/17/2019: Motion for Leave to Amend
2/1/2019: Proof of Service (not Summons and Complaint)
2/4/2019: Minute Order
2/5/2019: Proof of Service by Mail
2/8/2019: Association of Attorney
3/12/2019: Status Report
3/25/2019: Minute Order
4/16/2019: Request for Judicial Notice
5/23/2019: Motion to Compel Further Discovery Responses
6/14/2019: Proof of Service (not Summons and Complaint)
12/14/2017: PROOF OF SERVICE SUMMONS
Opposition (DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION TO QUASH); Filed by KDW Automotive, Inc. (Defendant)Read MoreRead Less
Declaration ( OF MARYAM MALEKI IN SUPPORT OF DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION TO QUASH); Filed by KDW Automotive, Inc. (Defendant)Read MoreRead Less
Response (DEFENDANT'S RESPONSE TO PLAINTIFF'S SEPARATE STATEMENT IN SUPPORT OF HER MOTION TO QUASH); Filed by KDW Automotive, Inc. (Defendant)Read MoreRead Less
Proof of Service (not Summons and Complaint); Filed by KDW Automotive, Inc. (Defendant)Read MoreRead Less
at 09:30 AM in Department 24; Final Status Conference - Held - ContinuedRead MoreRead Less
at 08:30 AM in Department 24; Hearing on Motion to Continue Trial - Not Held - Taken Off Calendar by PartyRead MoreRead Less
at 08:30 AM in Department 24; Hearing on Motion for Judgment on the Pleadings - Not Held - Rescheduled by PartyRead MoreRead Less
Separate Statement; Filed by Violeta Alcaraz (Plaintiff)Read MoreRead Less
Motion to Compel Further Discovery Responses; Filed by Violeta Alcaraz (Plaintiff)Read MoreRead Less
Motion to Compel Further Discovery Responses; Filed by Violeta Alcaraz (Plaintiff)Read MoreRead Less
Notice of Case Management Conference; Filed by ClerkRead MoreRead Less
NOTICE OF CASE MANAGEMENT CONFERENCERead MoreRead Less
Answer; Filed by KDW Automotive, Inc. (Defendant); Lexus of Glendale (Legacy Party)Read MoreRead Less
DEFENDANT'S ANSWER TO PLAINTIFF'S COMPLAINT FOR DAMAGESRead MoreRead Less
Proof-Service/Summons; Filed by Plaintiff/PetitionerRead MoreRead Less
PROOF OF SERVICE SUMMONSRead MoreRead Less
SUMMONSRead MoreRead Less
Summons Issued; Filed by ClerkRead MoreRead Less
PLAINTIFF'S COMPLAINT FOR DAMAGES 1. DISCHARGE IN VIOLATION OF FEHA. CAL. GOVERNMENT CODE 12940(A); ETCRead MoreRead Less
Complaint; Filed by Violeta Alcaraz (Plaintiff)Read MoreRead Less
Case Number: BC683529 Hearing Date: October 24, 2019 Dept: 24
Defendants KDW Automotive Inc. dba Lexus of Glendale and Roy Tunno’s motion for summary judgment is DENIED. Defendants’ alternative motion for summary adjudication is DENIED as to issues no. 6 and GRANTED as to issues nos. 1-5.
On November 14, 2017, Plaintiff Violeta Alcaraz (“Plaintiff”) filed this wrongful termination action against her former employer Defendant KDW Automotive Inc. dba Lexus of Glendale (“KDW”) and Roy Tunno (“Tunno”) (collectively “Defendants”). Plaintiff began her employment with KDW on April 19, 2006. KDW gave male porters preferential treatment over Plaintiff, the only female porter. KDW supervisors would give demeaning tasks to Plaintiff and made sexist comments towards her. Plaintiff alleges she was terminated by KDW on July 20, 2017, based on her sex and in retaliation for exercising rest break rights. The operative First Amended Complaint (“FAC”) alleges twelve causes of action for: 1) discharge in violation of FEHA, 2) disparate treatment in violation of FEHA; 3) discharge in violation of Lab. Code § 98.6(a); 4) wrongful discharge in violation of public policy; 5) failure to pay wages; 6) failure to pay wages upon discharge; 7) unfair competition; 8) penalties pursuant to Lab. Code § 2699(a); 9) retaliation; 10) harassment; 11) failure to prevent discrimination; and 12) defamation.
On August 9, 2019, Defendants moved for summary judgment. On October 10, 2019, Plaintiff filed an opposition. On October 16, 2019, Defendants submitted a reply.
Summary Judgment Standard
A party may move for summary adjudication as to one or more causes of action, affirmative defenses, claims for damages, or issues of duty if that party contends that there is no merit to the cause of action, defense, or claim for damages, or if the party contends that there is no duty owed. (See CCP §437c(f)(1).) “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Ibid.) A cause of action has no merit if: (1) one or more elements of the cause of action cannot be separately established, even if that element is separately pleaded, or (2) a defendant establishes an affirmative defense to that cause of action. (See CCP §437c(n); Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 583.) Once the defendant has shown that a cause of action has no merit, the burden shifts to the plaintiff to show that a triable issue of material fact exists as to that cause of action. (See CCP §437c(o)(2); Union Bank, supra, 31 Cal.App.4th at 583.)
In order to obtain summary judgment, “all that the defendant need do is to show that the plaintiff cannot establish at least one element of the cause of action.” (See Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853; see also Mitchell v. United National Ins. Co. (2005) 127 Cal.App.4th 457.) “Although he remains free to do so, the defendant need not himself conclusively negate any such element.” (Ibid.) “Once the defendant has made such a showing, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or as to a defense to the cause of action. If the plaintiff does not make such a showing, summary judgment in favor of the defendant is appropriate.” (See Mitchell, supra, 127 Cal.App.4th at 467.)
Until the defendant meets this evidentiary burden, the plaintiff has no burden to present evidence showing a triable issue of fact. (See Hagen v. Hickenbottom (1995) 41 Cal.App.4th 168, 178; see also Hawkins v. Wilton (2006) 144 Cal.App.4th 936, 940, citing Duckett v. Pistoresi Ambulance Service, Inc. (1993) 19 Cal.App.4th 1525, 1533 [“[w]here the evidence presented by defendant does not support judgment in his favor, the motion must be denied without looking at the opposing evidence, if any, submitted by plaintiff”].)
Request for Judicial Notice
KDW requests judicial notice of the following exhibits: 1) Plaintiff’s Complaint; 2) Plaintiff’s Notice to LWDA dated October 31, 0217; 3) a deposition transcript of Tunno; and 4) Plaintiff’s FAC. KDW’s request is GRANTED as to requests 1 and 4. (Evid. Code § 452(d).) KDW’s request is DENIED as to the deposition and the notice, as those documents do not fall into any enumerated category. However, those documents are also provided and authenticated through an evidentiary declaration, so the documents will be considered absent a sustained evidentiary objection.
KDW notices six issues: 1) Plaintiff's cause of action for violations of the Private Attorneys General Act ("PAGA") fails as a matter of law as Plaintiff's notice does not include that Plaintiff is seeking relief on behalf of aggrieved employees and is therefore insufficient; 2) Plaintiff's cause of action for violations of the PAGA fails as a matter of law as Plaintiff's notice does not include that Plaintiff will pursue a representative action; 3) Plaintiff’s cause of action of the PAGA fails as a matter of law as Plaintiff's notice does not include does not include facts and theories sufficient to allow the Labor Workforce Development Agency to analyze whether it will investigate or not; 4) Plaintiff’s cause of action of the PAGA fails as Plaintiff's notice does not include facts and theories sufficient to allow employer to determine what wrongful practices are being alleged thus depriving it of the opportunity to investigate such claims; 5) Plaintiff's cause of action for PAGA fails as a matter of law as Plaintiff’s notice does not include facts and theories sufficient to allow employer to determine what wrongful practices are being alleged thus depriving it of the opportunity to cure any wrongful actions, if any; and 6) Plaintiff's Defamation cause of action fails as a matter of law because the cause of action is time barred. The issues essential fall into two categories: issues dealing with the exhaustion of remedies, and the issue as to the defamation claim.
KDW does not notice any issues which affect the first, second, seventh, ninth, tenth and eleventh causes of action. Therefore, the motion does not properly request summary judgment, since causes of action would remain even if all the issues were decided in KDW’s favor. Accordingly, KDW’s motion for summary judgment is DENIED. The Court will now consider the noticed issues as to the alternative motion for summary adjudication.
Issue No. 1-5: PAGA and Exhaustion of Remedies
“Under PAGA, an aggrieved employee may file a representative action on behalf of himself or herself and other current and former employees to recover civil penalties for violations of the Labor Code that otherwise would be assessed and collected by the Labor and Workforce Development Agency [“LWDA”]... For all provisions of the Labor Code for which a civil penalty is not specified, PAGA creates a default civil penalty. The civil penalties available under PAGA are in addition to any other remedies available under state or federal law. Any civil penalty recovered is paid 75 percent to the [LWDA] and 25 percent to aggrieved employees.” (Lopez v. Friant & Associates, LLC (2017) 15 Cal.App.5th 773, 777–778 [internal citations and quotations omitted].)
“As a condition of suit, an aggrieved employee acting on behalf of the state and other current or former employees must provide notice to the employer and the responsible state agency ‘of the specific provisions of [the Labor Code] alleged to have been violated, including the facts and theories to support the alleged violation.’ ” (Williams v. Superior Court (2017) 3 Cal.5th 531, 545.) “The evident purpose of the notice requirement is to afford the relevant state agency, the [LWDA], the opportunity to decide whether to allocate scarce resources to an investigation, a decision better made with knowledge of the allegations an aggrieved employee is making and any basis for those allegations. Notice to the employer serves the purpose of allowing the employer to submit a response to the agency (see Lab. Code, § 2699.3, subd. (a)(1)(B)), again thereby promoting an informed agency decision as to whether to allocate resources toward an investigation.” (Id. at 545–546.)
In Khan v. Dunn-Edwards Corp. (2018) 19 Cal.App.5th 804, an employee failed to provide fair notice to former employer and responsible state agency of other fellow aggrieved employees, on whose behalf employee was allegedly acting under the PAGA, regarding former employer's alleged labor code violations. The court examined the following letter:
This correspondence shall constitute written notice under Labor Code § 2699.3 of my claims against my former employer, Dunn–Edwards Corporation (‘Dunn Edwards’ or ‘Defendant’). Specifically, I allege that Dunn Edwards:
1. Violated Labor Code § 226(a) by failing to identify all of the required information on my final paycheck stub/itemized wage statement that I received, including but not limited to the pay period begin date, the correct pay date, and the total hours worked.
2. Violated Labor Code §§ 201–203 by failing to pay all of my earned wages immediately upon termination and failure to pay waiting time penalties as a result thereof.
(Khan v. Dunn-Edwards Corp. (2018) 19 Cal.App.5th 804, 807.) The employee admitted that his notice “makes no mention of any other Labor Code violations and does not reference any other current or former employee besides Khan.” (Ibid.) The trial court adjudicated his PAGA claims, noting that “unless the group is identified” the notice does not specify the aggrieved employees. (Id. at 809.) The Second District upheld this ruling, explaining that “[b]ecause his notice expressly applied only to him, it failed to give the [LWDA] an adequate opportunity to decide whether to allocate resources to investigate Khan's representative action. Because Khan referred only to himself, the agency may have determined that no investigation was warranted. Additionally, the notice failed to provide Dunn–Edwards with an adequate opportunity to respond to the agency since the notice suggested only an individual violation.” (Ibid.) Thus employee could not pursue claim on behalf of fellow aggrieved employees, where employee's notice expressly applied only to his individual claim. (Ibid.) The Khan court also disallowed the employee’s individual claims because he previously dismissed the individual claims. (Id. at 810, fn. 1.)
Here, Defendant presents an analogous letter to that discussed in Khan. The undisputed letter at issue states in substantive part:
"Dear Sir or Madame:
Pursuant to Labor Code Sec. 2699.3(a)(1), VIOLETA ALCARAZ ("Plaintiff'') hereby gives written notice of the intent to file a Labor Code Sec. 2699 claim against KDW AUTOMOTIVE, INC. ("Defendant").
Plaintiff alleges violations of the following Labor Code sections: 98.6, 201, 203, and 226.7 and intends to seek penalties pursuant to Labor Code sections 98.6(b)(3) and 2699(f)(2). Plaintiff wishes to proceed with her claims via civil action.
Plaintiff worked for Defendants as a full-time non-exempt employee from April 19, 2006 to July 21, 2017. Defendant regularly failed to provide Plaintiff with a paid ten-minute rest periods [sic] for every four hours, or major fraction thereof, worked. Plaintiff believes that on or about July 21, 2017 she was discharged by Defendant for exercising her right to take a rest period. Since her discharge, Defendant has not paid Plaintiff wages owed for unprovided rest periods."
In this letter, Plaintiff provides no notice that she sought to pursue any representative claims. Like in Khan, she makes no reference to any other employees or any violations as to any other employees. In fact, the phrasing of the letter only states that she “wishe[d] to proceed with her claims via civil action.” (UMF 4 ¶ 2 [emphasis added].) Defendants thus meet their initial burden as to the PAGA representative claims.
Plaintiff does not dispute that this is the letter she sent to LDWA. Plaintiff instead suggests that it is sufficient because she did not rely on legal conclusion and sufficiently articulated violations as to her. Of course, this does not address the on-point authority discussed above.
Accordingly, summary adjudication is GRANTED as to the PAGA claims embraced by the third, fourth, fifth, sixth, and eighth causes of action. Plaintiff may still pursue her individual claims based on the alleged Labor Code violations—of course, without PAGA penalties. (See Tanguilig v. Bloomingdale's, Inc. (2016) 5 Cal.App.5th 665, 676 [“Permitting pursuit of only individual penalties appears inconsistent with PAGA's objectives.”].)
Issue no. 6: DefamationDefendants assert that the defamation cause of action is barred by the statute of limitations. Defendant argues that the publication was made by Tunno to Sharon Wilhort (“Wilhort”), an HR manager for KDW, in 2017. (FAC ¶ 86; UMF 10.) The FAC was not filed until February 4, 2019. Defendant argues the claim is therefore barred by the one-year statute of limitations. Plaintiff submits that the delayed discovery rule applies.
The statute of limitations for defamation requires that an action be filed within one year of accrual of the cause of action. (CCP, § 340(c).) Generally, the statute of limitations begins to run from the initial publication. (Shively v. Bozanich (2003) 31 Cal.4th 1230, 1237, 1247.) The discovery rule, which postpones accrual until plaintiff discovers or has reason to discover the factual basis for the claim, generally does not apply to defamation claims when the basis for a claim has been published in the public record or has been the subject of publicity. (Id. at 1248.) However, the discovery rule “has been applied when the defamatory statement is hidden from view.” (Id. at 1249.) “The cases turn upon the circumstances in which the defamatory statement is made…” (Ibid.) The "discovery rule may be applied to breaches which can be, and are, committed in secret, and moreover, where the harm flowing from those breaches will not be reasonably discoverable by plaintiff until a future time." (April Enterprises, Inc. v. KTTV (1983) 147 Cal.App.3d 805, 832; see Hebrew Academy of San Francisco v. Goldman (2007) 42 Cal.4th 883,894 [delayed discovery rule does not apply to defamation claims unless the defamatory statement was hidden from view because it was communicated in an inherently secretive manner]; Christoff v. Nestle USA, Inc. (2009) 47 Cal.4th 468,483 [same]; cf. Manguso v. Oceanside Unified School District (1979) 88 Cal.App.3d 725, 727, 731 [delayed discovery rule may apply to libel claim based on contents of letter placed in a confidential file in defendant's personnel office and not discovered by plaintiff until almost 16 years later].)
Defendant argues that the single publication rule prevents the application of the delayed discovery rule. The single publication rule is codified in Civ. Code section 3225.3. It states: “No person shall have more than one cause of action for damages for libel or slander or invasion of privacy or any other tort founded upon any single publication or exhibition or utterance, such as any one issue of a newspaper or book or magazine or any one presentation to an audience or any one broadcast over radio or television or any one exhibition of a motion picture. Recovery in any action shall include all damages for any such tort suffered by the plaintiff in all jurisdictions.” This “single publication rule” was enacted to change the common law rule that each sale or delivery of a newspaper was a separate publication that gave rise to a separate claim, which effectively nullified the limitations period. (See Shively, supra, 31 Cal.4th at 1242-1246.) However, when a statement is re-published, i.e. when it is reprinted in something that is not part of the same single integrated publication, the statute of limitations would be reset. (Yeager v. Bowlin (9th Cir. 2012) 693 F.3d 1076, 1082 [applying California law, held that statement in hardcover book is republished when repeated in later paperback edition of book].) In sum, it holds that only one cause of action may be based on a publication, no matter how many copies of that publication are distributed or made.
Defendant presents no reasoned argument as to why the “single publication rule” should apply to prevent the application of the delayed discovery rule. Defendant argues that Shively stands for the proposition whenever the single publication rule applies, delayed discovery cannot. Shively does not stand for such a broad proposition. Shively recognized several instances where delayed discovery would be appropriate to apply to a defamation claim. (Shively, supra, 31 Cal.4th at 1249.) Shively did note that “courts uniformly have rejected the application of the discovery rule to libels published in books, magazines, and newspapers, pointing out that application of the discovery rule would undermine the protection provided by the single-publication rule.” (Id. at 1250.) Shively was concerned with applying the discovery rule to statements contained in written publications, since this would undermine the single-publication rule and reinstate the indefinite tolling of the statute of limitations intended to be cured by the adoption of the single-publication rule. (Id. at 1251.) The Supreme Court did not make such a ruling as to a single, unintegrated, oral statement.
The defamation at issue deals with a single, oral statement made over a telephone call to another. The evidence and allegations only show one statement by Tunno in 2017. Defendants does not explain why or how this would not be considered an inherently secretive statement when one manager makes one oral statement to another manager. Based on the above case law discussing the single publication rule and its applicability to the delayed discovery doctrine, the Court does not find that the single publication rule would apply in such a way. Defendant therefore has not set forth an exception to the delayed discovery rule given the facts cited.
Plaintiff also provides a dispute of material fact as to when she reasonably discovered or should have discovered the defamatory statements. A plaintiff discovers a claim, for purposes of discovery rule, when plaintiff suspects or should suspect that her injury was caused by wrongdoing. (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797.) Defendant argues that it should have been discovered in during the Tunno deposition which occurred on April 19, 2018. (UMF 10.) Defendant notes that Plaintiff “skillfully” avoided actually asking Tunno about the contents of his conversation; this suggests that Plaintiff did not discover the defamatory statements in 2017. Plaintiff argues that she discovered the claims during the Wilhort deposition. (Plaintiff’s Additional Material Facts (“AMF”) 9-11.) This presents a clear dispute of fact over when Plaintiff discovered or reasonably should have discovered the slander. Simply put, this is for a jury to decide. (See Fox, supra, 35 Cal.4th at 810 [resolution of the statute of limitations issue is normally a question of fact].)
Accordingly, Defendants’ motion for summary adjudication is denied as to this issue.
Moving party is ordered to give notice.
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