17-CIV-04683 PILAR PODESTA VS. FOREVER YOUNG ASSISTED LIVING INC., ET AL.
PILAR PODESTA FOREVER YOUNG ASSISTED LIVING INC.
JAY WITHEE KATHLEEN M. HURLY
MOTION FOR SUMMARY JUDGMENT TENTATIVE RULING:
The Motion of Defendant Forever Young Assisted Living, Inc. (“Defendant”) for Summary Judgment or, in the alternative, Summary Adjudication, is ruled on as follows:
(1) For purposes of motions for summary judgment and summary adjudication, a defendant has met its burden of showing that a cause of action has no merit if the party has shown that one or more elements cannot be established, or there is a complete defense to the cause of action. (C.C.P. § 437c(p)(2).) Once the defendant has met its burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. (Id.)
(2) The Motion to the First Cause of Action for Violation of Labor Code Section 1102.5 is DENIED because triable issues of material fact exist as to this claim.
To establish a prima facie case of retaliation, the plaintiff must show: (1) he or she engaged in protected activity, (2) the employer subjected him or her to an adverse employment action, and (3) there is a causal link between the protected activity and the adverse employment action. (McVeigh v. Recology San Francisco (2013) 213 Cal.App.4th 443, 468.) If the employee establishes these elements, thereby showing a prima facie case exists, the burden then shifts to the employer to provide evidence that there was a legitimate, non-retaliatory reason for the adverse employment action. (Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 74-75.) If the employer produces evidence showing a legitimate reason for the adverse employment action, the burden shifts back to the employee to provide substantial evidence that the employer’s proffered reason was untrue or pretextual. (Id. at 75.)
Labor Code Section 1102.5 prohibits an employer, or any person acting on behalf of the employer, from retaliating against an employee for disclosing information to a person with authority over the employee or another employee who has the authority to investigate, discovery or correct the violation or noncompliance, if the employee has reasonable cause to believe the information discloses a violation of a state or federal statute or a violation of or noncompliance with a local, state or federal rule or regulation. (See Labor Code sec. 1102.5(b).)
Plaintiff raises a triable issue of material fact as to whether she engaged in protected activity. (See Plaintiff’s Fact nos. 46-48; see also 22 CCR section 87303.) Additionally, Plaintiff raise a triable issue of material fact as to whether there is a causal link between any protected activity and her termination. (See Plaintiff’s Fact nos. 49, 52.) Plaintiff reported her complaint to Colondres on July 30, 2017. Colondres claims she made the decision with Rodriguez to terminate Plaintiff no later than July 29, 2017. (See Colondres Decl.) Rodriguez provided Plaintiff with a termination letter signed by him on July 30, 2017. (See Rodriguez Decl.) Although Colondres and Rodriguez state they made the decision to terminate Plaintiff no later than the day before Plaintiff’s complaint, the temporal proximity of this decision is enough to raise a triable issue as to causation. (See Arteaga v. Brink’s, Inc. (2008) 163 Cal.App.4th 327, 353.)
The burden then shifts to Defendant to produce evidence of a legitimate reason for terminating Plaintiff, which Defendant presents here. (See Defendant’s Undisputed Material Fact nos. 22-25.)
Plaintiff nevertheless presents evidence to create a triable issue of material fact as to whether Defendant’s proffered reason was untrue or pretextual. (See Plaintiff’s Response to Fact no. 25; Plaintiff’s Fact nos. 48, 49, 52.) While temporal proximity alone may satisfy the causation requirement at the first step of the burden shifting process, temporal proximity alone is insufficient to raise a triable issue as to pretext once the employer has offered evidence of a legitimate, nondiscriminatory reason for the termination. (Arteaga, supra, 163 Cal.App.4th at 353.) Here, the evidence of pretext is not solely the temporal proximity of her complaint to her termination, but also Plaintiff’s evidence that Colondres called Plaintiff into her office on July 30, 2017 to tell Plaintiff that her work schedule was changing from weekends to Monday and Wednesday. (Plaintiff’s Fact no. 49.) The notification of this change in schedule occurred on the exact same day that Plaintiff was later terminated, i.e. July 30, 2017, even though Colondres and Rodriguez claim to have already made the decision to terminate Plaintiff no later than the day before. Although Defendant objects to this evidence as inadmissible hearsay, Defendant’s objection is overruled because Plaintiff is not offering this evidence for the truth of the matter asserted, but rather to show Colondres’ state of mind. (See Evid. Code sec. 1250; see Court’s ruling on Defendant’s Evidentiary Objection no. 13 below.) (3) The Motion to the Second Cause of Action for Violation of Labor Code Section 6310 is DENIED because triable issues of material fact exist as to this claim.
Labor Code section 6310 prohibits an employer from discharging an employee because the employee complained of unsafe working conditions. (Labor Code sec. 6310.) For the same reasons discussed above with the First Cause of Action, triable issues of material fact exist as to whether Plaintiff engaged in protected activity, whether a causal link exists between the protected activity and her termination, and whether Defendant’s proffered reason for Plaintiff’s termination was untrue or pretextual. (See Plaintiff’s Fact nos. 62-65, 68; see also Colondres Decl., Rodriguez Decl., and Plaintiff’s Decl.)
(4) The Motion to the Third Cause of Action for Wrongful Termination in Violation of Public Policy is DENIED because triable issues of material fact exist as to this claim.
“To prevail on a claim for wrongful termination in violation of public policy, a plaintiff must show that (1) the plaintiff was employed by the defendant, (2) the defendant discharged the plaintiff, (3) a violation of public policy was a motivating reason for the discharge, and (4) the discharge harmed the plaintiff.” (Ferrick v. Santa Clara University (2014) 231 Cal.App.4th 1337, 1343.) The public policy must be supported by either constitutional or statutory provisions. (Id. at 1344.)
This claim is based on Defendant’s alleged violations of Labor Code section 1102.5 and/or 6310 as the public policy violations to support Plaintiff’s claim for wrongful termination. Accordingly, for the reasons already discussed above, triable issues of material fact exist as to whether a violation of public policy was a motivating reason for the discharge, and as to whether Defendant’s proffered reason was untrue or pretextual. (See Plaintiff’s Fact nos. 78-81, 84; see also Colondres Decl., Rodriguez Decl., and Plaintiff’s Decl.)
(5) Defendant’s Motion for Summary Judgment is DENIED, and the Motion for Summary Adjudication to the First, Second and Third Causes of Action is also DENIED.
(6) The Motion to the claim for punitive damages however, is CONTINUED to October 9, 2018 at 9:00 a.m. in the Law and Motion Department. (See C.C.P. sec.437c(h).) Plaintiff indicates that she has propounded discovery that pertains to the issue of Colondres’ and Rodriguez’s discretionary authority and thus whether they were managing agents of Defendant. (See Plaintiff’s counsel’s Decl.) D’s responses to this discovery were due on September 13, 2018, which was after Plaintiff’s opposition was due.
Plaintiff’s supplemental opposition on only this issue of punitive damages is to be filed and served by September 28, 2018, and limited to no more than five pages.
Any supplemental reply by Defendant is also limited only to this issue of punitive damages, and is to be filed and served by October 2, 2018, and limited to no more than five pages.
(7) For Plaintiff’s Evidentiary Objections, Objections nos. 1-5 are not made to specific evidence, but rather Plaintiff quotes Defendant’s Undisputed Material Facts. Thus, the Court declines to rule on them based on Plaintiff’s failure to comply with CRC Rule 3.1354.
The remainder of Plaintiff’s Evidentiary Objections is OVERRULED as to Plaintiff’s deposition transcript at p. 40:4-7 and 10:9-11:4 and SUSTAINED as to p.108:7-24. (8) For Defendant’s Evidentiary Objections, the Court rules as follows:
Objection nos. 1, 3, 4, 7-13 and 15 are OVERRULED.
Objection no. 2 is SUSTAINED only as to “Forever Young was aware of this restriction” and the remainder is OVERRULED.
Objection nos. 5, 6, and 14 are SUSTAINED