Hrg 1/17/19 Motion For Summary Judgment Or Summary Adjudication

Motion

Cal. Super. - 6th Dist.May 18, 2016

10 11 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 JESSICA WOELFEL (State Bar No. 226939) MCDONALD CARANO LLP 100 West Liberty Street, 10% Floor Reno, Nevada 89501 Telephone: (775) 788-2000 Facsimile: (775) 788-2020 jwoelfel@mecdonaldcarano.com Attorneyfor Defendants Walter Neal, and Cambrian Properties, LLC SUPERIOR COURT FOR THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA KATIE SALZANO,an individual, Case No.: 16-CV-295330 Plaintiff, WALTER NEAL AND CAMBRIAN V. PROPERTIES, LLC’S NOTICF. OF MOTION AND MOTION FOR WALTER NEAL, CAMBRIAN SUMMARY JUDGMENT; PROPERTIES, LLC; and DOES 1-20, MEMORANDUM OF POINTS AND inclusive, AUTHORITIES IN SUPPORT Defendants. Hearing Date: January 17,2019 Time: 9:00 a.m. Location: Dept. 13 NOTICE OF MOTION AND MOTION TO PLAINTIFF, HER ATTORNEY OF RECORD, AND TO THE CLERK OF THE COURT: PLEASE TAKE NOTICEthat on January 17, 2019, at 9:00 a.m., or as soon thereafter as counsel may be heard, in Department 3 of the Downtown Superior Court, Santa Clara Superior Court, located at 191 N. First Street, San Jose, California, before the Honorable James L. Stoelker, presiding, Defendants and Cross-Complainants Walter Neal (“Mr. Neal”) and Cambrian Properties, LLC (“Cambrian”) (collectively “Cross-Complainants”), will move the Court for an order granting their Motion for Summary Judgment or, in the Alternative, Motion for Summary Adjudication (“Motion”) against Plaintiff KATIE SALZANO (“Salzano” or “Plaintiff”). This Motion is brought on the ground that no triable issue of fact exists with respect 51s NOTICE OF MOTION AND DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT N O 0 3 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 to the claims in Plaintiffs’ Amended Complaint and Defendants are entitled to judgment as a matter of law. Defendants’ Motion is based on this Notice, the following Memorandum of Points and Authorities, the Index of Evidence (filed herewith), all pleadings, records and documents on file herein, and such additional evidence and argument as may be properly introduced in support of the motion. Dated: September4, 2018. MCDONALD CARANO LLP i«€ JESSICA WOELFEL ‘neysfor Defendants Walter Neal and Cambrian Properties LLC SDs NOTICE OF MOTION AND DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF CONTENTS NOTICE OF MOTION AND MOTION ..............isusesisssimiisssiisssississsiasiasaiiiiivss 1 TABLE OF CONTENTS ....pexsmasasnsasssssnrnssemafsssnmsrsenssassspsoss ress ssrssasis vids sass seasaecorsnaasvasso ss avasesiafans -- i TABLE OF AUTHORITIES ....ocotcitiiieiieitesiessisesssessesesssssssesssssessssssssasssssssssssssssssssmsssssssssssesens iii MEMORANDUM OF POINTS AND AUTHORITIES ......c.cociiiiiinisiininsiisisiessesssseessanns 1 I. INTRODUCTION .......caessmesisiosiiiasiasisssisiinssssbon satoias soosSuesssoissssmisasvoissseisstinssorss. . 1 II. RELEVANT BACKGROUND .....cociiitiiiiteieieeseereeessiessesnensesssssessessssssssssssssnssssssssssssssessassens 1 a. Mr. Neal and Ms. Salanzo’s Consensual Romantic Relationship ......cccoccoviviieiiiiennnnne. 1 b. Procedural HiStOIY .......ccccvverrercrnriiieinimsuinsnisniosniessninr nes esos asassaiuonsavessimssnssnaniss oo 3 II. STATEMENT OF UNDISPUTED MATERIAL FACTS .....cciiiiiiniriniincsiniissie sass enens 3 IV. DISCUSSION....cccoeeruerrrersrereessesssasssessnssassssssssessesssssssesssesessssssssassssssssssasssssssessssssssssssessssssssnse 5 A. Legal Standard ...............suomecvissmsssemsmsssnuesmsssessmsssmssnsassnsiassmssssuss rae muses spssmas se 5 B. Summary Judgment Should Be Granted on Plaintiff’s Employment Law Claims (Second, Third, Fourth and Fifth Causes of Action) .........ccccoeviiiiiiiineiiiiiiinicics 7 1. Applicable Law .........c...cooueee.. cuyommmssmmeisss eisinGaiasimressSaree asgieiss7 2. Ms. Salanzo Has Admitted That She Has No Factual Basis for Her Employment Law Claims........cccooveoirireiiiiiiiiiiiiiniciciesnesn essa snes sass ssnenas 8 C. Summary Judgment Should Be Granted on Plaintiff’s Sexual Assault and Battery Claims (Sixth, Seventh, and Eighth Causes of Action) ..........cccovevieiieiinnnas 9 1. Applicable Law ................ssasnsassesemenmusimamsssssiunsis ios iia sasssissonrissa 10 2. Ms. Salanzo Has Admitted That She Has No Factual Basis for Her Sexual Assault and Battery Claims weusssosssmvsssasssoeassmsissstmimsnsessasnssssussnpsasossssrssnvssonss 10 D. Summary Judgment Should Be Granted on Plaintiff’s Emotional Distress Claims (Ninth and Tenth Causes of ACtion).......c.ccccoeecriiiiiiiiiiniiineeiens 11 I. Applicable Law ..........oosesssoscasssesssassasensassasssssassssansassassnssasssrassssassasbsnssnssssscassonssns 11 2. There is No Issue of Material Fact Regarding Ms. Salanzo’s Claims of Emotional Distressassmssssssstisssssmss snes sesse chess csssrtsnsesssvs sss asst assosmsnonsosssssss 12 E. Summary Judgment Should Be Granted on Plaintiff’s Conversion Claim (Eleventh CAUSE OF ACHON) ...cceeiereierieirererresreereesnerrerssstesstssassstssrs esse ssessasssessntssansbassassansansossass 12 F. Summary Judgment Should Be Granted on Plaintiff's Alter Ego Liability Claim (First Cause Of ACLION) ...c.cevuivirieriirieiieiiineiesreesesaeeesbeeree a esseaes 13 Ms NOTICE OF MOTION AND DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 G. Summary Judgment Should Be Granted on Plaintiff’s Declaratory and Injunctive Relief Claim (Twelfth Cause of ACHION) ..c..cvevvevrereiinirinniniinineeceserene 14 V. CONCLUSION.....comeesssnstmentpsnsesetsssssnssssisossssasss iss is iassasos sian sovssseviinsossvsievatisnayaosospidionsishs 15 - ii - NOTICE OF MOTION AND DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ~ ~ N n k e W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES Cases Aguilar v. Atlantic Richfield Company, 251Cal: Ath B26" (200M)... ..... 5 cece reo3EEERATESERBeRe6 Andrews v. Foster Wheeler LLC, 138 Cal. App. 4th 96 (20006) ... cueussesvssnseoniisssvessisienssasssissss dssosiaedesev des Sova wow ios6 Atkinson v. United States, No. 14-CV-16 JLS (JMA), 2016 WL 9455261 (S.D. Cal. Jan. 4, 2016) .....c.cccoeevvvvuvcurruennes 11,12 Burger v. Pond, 224 Cal. App. 3d 597, 273 Cal. Rptr. 709 (Ct. App. 1990)...11 Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998)....coueieeureeeeeeetree neater e teste see reese e vaste bests sae shes sabe be seas ease ba san be sas anes 7 Collin v. Am. Empire Ins. Co., 21 Cal. APP. 4th 787 (1994)...sbeben a saben anaes sans asne es 6 Dollinger DeAnza Assocs. v. Chicago Title Ins. Co., 199 Cal. App. 4th 1132, 131 Cal. Rptr. 3d 596 (2011) ..cccvvviiiiiiniiiiiiiiiiiiiiciicissinscinenieas 14,15 Hughes v. Pair, 46 Cal. 4th 1035, 1043, 209 P.3d 963, 971 (2009) ....cueereeerereerrieeerreseenressessesnessssssssssssssansans 7 Jones v. Dep't ofCorr. & Rehab., 62 Cal. Rptr. 3d 200 (Ct. APD. 2007) ..coorrirviiisiisinrinniniesissensenes simssiissssessnssaisassnsssssosonssnsssonss 7,8 Kobbervig-Harrell v. Nike, Inc., No. B190656, 2007 WL 1140421 (Cal. Ct. App. Apr. 18, 2007) ..cvevivivriiiirieiiniiisiinsiisnanns 8,9 Leuridan v. California Dep't ofCorr. & Rehab., No. E051626, 2012 WL 733898 (Cal. Ct. App. Mar. 6, 2012) ....cccevereniiiiinininicinscssessscsnenes 7 Lyle v. Warner Bros. Television, Prods., 132 P.3d 211 (Cal. 2000) .......ccorerrromrrcrammniineisesseossessssserisibimsinississsasivasaissavisiossessssisosmeass 7 Mid-Century Ins. Co. v. Gardner, 9 Cal. App. 4th 1205, 11 Cal. Rptr. 2d 918 (1992) ....cviiiiiiriiiiiciiisinisinisienies13, 14 Nielsen v. Trofholz Techs., Inc., 750 F.Supp.2d 1157 (E.D. Cal. 2010) ........covrerirverierinirerscrsessisesemessompsasonssmonsusssissrsiossaommsmssrs 7,9 People v. Myers, 61 Cal.App.4th 328 (1998) .................ivsicisssiamissasissiissisississssiiomisiisiivismsvnaisimsissisiiiiiieaiss 10 Potter v. Firestone Tire & Rubber Co., 6 Cal. 4th 965, 863 P.2d 795 (1993)...uuiiciiiiecieiiisiseniesseesssessesssssseassasssesssssssessessesssssssssasssssssasans 12 Proksel, 41 Cal. APP. MD. cucusimsssssssvicissssissimnssmemosstsmssomsssstmsi amisssasssss sms anassoss sass sssssrensonsons 7 - iii - NOTICE OF MOTION AND DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Scotch v. Art Inst. ofCal. 93 Cal. Rptr. 3d 338 (Ct. App. 2009)susanaosisisrisssiissss8 Tallmadge v. Cty. ofLos Angeles, 191 Cal. App. 3d 251, 236 Cal. Rptr. 338 (Ct. App. 1987) .ccccuiiciiiciiiciisiciciiasies 13 Union Bank v. Superior Court, 31 Cal. APP. Ath 573 (1995) .ussscvsccsssonsansosesaesssistscsnecrnsns senses storsessesssocsiantsssasmenysses ness ssrpsasssss 6 Yanowitz v. L'Oreal USA, Inc., 116 P.3d 1123 (2005) .....cueememreereeeesnens mers iidesamsenssesdensis ii essissi mos sans ias hrs bea doasyis Sis savssashisasaioss: 8 Yau v. Santa Margarita Ford, Inc., 176 Cal. Rptr..3d'824 (Ct. App. 2014) .... sonmmmmensnsemmdibodtoisiisiimasimeniisimmeisemannsts 8 Statutes Cal. Civ. Code § 1708.5.......cccoreeeranceramneons- idivenesiisissssssbinis iiss inis iis assimiisinisasivimiavsinsisvesis 10 CAL. LAB. CODE ' 2922........ccootecurenssemse- aammassmsraibami tisaminsaraasServ iraaissiin - 9 Code Civ. Proc., §437(CH0)(1) ....ccueererre- mmmmemsetassoSsean6 Code Civ. Proc., § 4370(C)...cccceermecrurernerser sisisssbinssssssisssinssesssssves ivshsasasassssesspsasseaseisnsssaassssassuossions 5 Code Civ. Proc., § 437c(D)(1) .....c.ccerueererrer- susismusphsisosssississsisassssmsasnssasassssbiiosssssbissnsviassosvenisasiasisnis 5 Pen.Code, § 242.........coo.o momammamemmsmantrsassstamtasmmsamsssgs amor itos NSS seosemeTASEANARs oSs 10 “iv - NOTICE OF MOTION AND DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES L INTRODUCTION This lawsuit was filed by Katie Salzano (“Ms. Salzano™) against Walter Neal (“Mr. Neal”) and his company, Cambrian Properties, LLC (“Cambrian”) on May 18, 2016. The lawsuit alleges claims of workplace harassment and retaliation and generally claims that Ms. Salzano was harassed and battered by her supervisor, Mr. Neal, and was wrongfully terminated when she rejected his sexual advances. The truth of the matter is that Mr. Neal and Ms. Salzano were a couple who were in a consensual sexual relationship. Mr. Neal and Ms. Salzano exchanged thousands of pages of text messages which demonstrate this romantic relationship existed and which make clear that Ms. Salzano moved away from the home she shared with Mr. Neal upon their break up. Upon providing these documents to Ms. Salzano’s attorneys, the attorneys withdrew from the case. Ms. Salzano is currently representing herself and has been unable to find new counsel. She has also taken no action in the litigation since the withdrawal of her attorneys. Ms. Salzano has refused to participate in the discovery process, has failed to attend scheduled depositions, and has failed to respond to written Requests for Admissions. On October 16, 2017, this Court granted an Order stating the matters set forth in Defendants’ Requests for Admissions, including the emails attached thereto, are deemed admitted. Ms. Salzano was served with a Notice of Entry of Order on October 26, 2017. No objection to the Court’s Order was filed by Ms. Salzano. As a result, each of Defendants’ Requests for Admissions are deemed admitted. These admitted responses to Requests for Admissions provide a complete defense to Plaintiffs’ lawsuit and, as a result, summary judgment should be granted. II. RELEVANT BACKGROUND a. Mr. Neal and Ms. Salanzo’s Consensual Romantic Relationship Mr. Neal is a generous, giving man who enjoys traveling and spending time with his family and friends. In 2005, he met Katie Salanzo in Reno, Nevada. After a briefrelationship, they lost touch until 2015 when Ms. Salanzo contacted Mr. Neal. (Salanzo text, Dec. 11, 2015 at 12:13a.m., Ex.B.1). At this time, Ms. Salanzo was struggling financially - she had extensive 2 {ss NOTICE OF MOTION AND DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT O o 0 3 ” 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 credit card debt and was on food stamps and welfare. (Neal Decl. § 2; Ex. 2; Neal and Salanzo text exchange, Feb. 7, 2016, Ex. 3). Mr. Neal offered her emotional support and financial advice. Eventually, they developed a romantic relationship. As the thousands of pages of texts between them demonstrate, the relationship was entirely consensual. (Neal and Salanzo text exchange, Feb. 11, 2016, Ex.B.4; Neal and Salanzo text exchange, Feb. 21, 2016, Ex. B.5; Neal and Salanzo text exchange, March 8, 2016, Ex. B.6; Neal and Salanzo text exchange, April 4, 2016, Ex. B.7). In January 2016, Ms. Salanzo and her daughter moved into Mr. Neal’s house in Los Gatos. (Neal Decl. § 3) Soon thereafter they moved into Mr. Neal’s apartment in Santa Clara, California. The condominium was to be their shared family residence. (Neal Decl. | 4) Before and after moving in together, they jointly discussed updating fixtures, changing the paint color, and buying furniture. (Neal and Salanzo text exchange, Feb. 4, 2016, Ex. 8; Neal and Salanzo text exchange, Feb. 8, 2016, Ex. B.9; Neal and Salanzo text exchange, March 9, 2016, Ex. B.10). Mr. Neal also often cared for Ms. Salanzo’s daughter and treated her like one of his own - feeding her, changing her diapers, and playing with her. (Neal and Salanzo text exchange, Feb. 4, 2016, Ex. 11). In addition, Mr. Neal retained a nanny to assist with childcare and light household chores. (Neal Decl. q 5) Mr. Neal considered Ms. Salanzo and her daughter to be his family. (Feb. 13, 2016 at 6:03 p.m., Ex. 12). The couple frequently discussed their future together. (Neal and Salanzo text exchange, Feb. 6, 2016, Ex. 13). Mr. Neal took Ms. Salanzo and her daughter on a vacation to Hawaii. (Neal and Salanzo text exchange, Feb. 29, 2016, Ex.B.14). By late April 2016, the couple’s relationship was falling apart. As their texts demonstrate, Mr. Neal wanted to work things out and wanted Ms. Salanzo to get help for her increasing use of pills and alcohol. (April 20, 2016 at 2:08 PM, Ex. B.15). But Ms. Salanzo did not want Mr. Neal’s help. She ended the relationship in May 2016 and elected to move out of the couple’s home. (Neal and Salanzo text exchange, April 30, 2016, Ex.B.16). Her access to the couple’s apartment and her ability to collect her personal items was not restricted by Mr. Neal or his employees. (Neal Decl. § 14). After moving out of the home, Ms. >=4 NOTICE OF MOTION AND DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT O o 0 a 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Salzano returned, was let into the home while Mr. Neal was not present, and collected her personal property. (Neal Decl. § 14). Mr. Neal viewed their relationship as a serious, long- term relationship, but the same was not true for Ms. Salanzo. She uses Mr. Nealfor his money. Over the course of their months-long relationship, Mr. Neal spent thousands of dollars on high-end clothes, a nanny, spa treatments, medical care, food, evenings out, and furniture. (Neal Decl. § 5-6). This lawsuit is just another example of her attempts to extort funds from Mr. Neal and his business, Cambrian. b. Procedural History Without warning or any evidentiary support, Ms. Salanzo filed this lawsuit on May 18, 2016. At the time she was represented by counsel, Katrina Saleen, Esq. at Broderick Saleen in Palo Alto, California. (Woelfel Decl. § 5). Upon receiving news of the Complaint, Mr. Neal provided his counsel with thousands of pages of text messages between himself and Ms. Salanzo. Mr. Neal’s counsel forwarded these emails to Ms. Salanzo’s counsel. (Woelfel Decl. § 7, Ex. A) On December 16, 2016 Ms. Salanzo’s counsel withdrew. She has been unable to find replacement counsel since that time. (Woelfel Decl. 8). Since the withdraw of her counsel, Ms. Salanzo has refused to participate in any form of discovery in this case. On June 23, 2017, she was served with Walter Neal’s First Set of Request for Admissions, Walter Neal’s First Set of Special Interrogatories, and Cambrian Properties, LLC’s Form Interrogatories. (Woelfel Decl. § 10, Ex. C attached thereto) No responses were forthcoming. Subsequently, Mr. Neal filed a motion to compel her discovery responses. On October 26, 2017, the Court entered an order deeming admitting all of Mr. Neal’s requests for admission and instructing Ms. Salanzo to respond to all other discovery requests within fifteen days and pay sanctions. (See Oct. 26, 2017, Notice: Entry of Order). To date, Ms. Salanzo has ignored the order, has failed to pay the ordered sanctions, and has not responded to Mr. Neal’s outstanding discovery requests. III. STATEMENT OF UNDISPUTED MATERIAL FACTS The following statements of material fact are undisputed and most have been deemed admitted by Order of this Court. (See Oct. 26, 2017, Notice: Entry of Order) £3% NOTICE OF MOTION AND DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 . Ms. Salzano and Mr. Neal were living together and engaged in a consensual sexual relationship during the relevant timeframe, from January - May 2016. Defendants’ Requests for Admission, Request Nos. 1-13, Woelfel Decl., Ex. C, attached thereto (hereinafter “Exhibit C” or “Ex. C”); See Exs.4-10. . In January 2016, the couple moved in to Mr. Neal’s home in Los Gatos, California. Defendants’ Requests for Admission, Request No. 2, Ex. C; Neal Decl. § 3. . In February 2016, the couple moved to the condominium Mr. Neal owned at the Balmoral Apartments at 3585 Agate Drive in Santa Clara, California. Defendants’ Requests for Admission, Request No. 3, Ex. C; Neal Decl. § 3. . During the time that Ms. Salanzo performed work for Cambrian she was engaged in a consensual romantic relationship with Mr. Neal. Defendants’ Requests for Admission, Request No. 19, Ex. C; Neal Decl. § 13. . There are several examples of texts from Ms. Salanzo to Mr. Neal that demonstrate her voluntary participation in the relationship, including her consent to and initiation of sexual activities with Mr. Neal and the couple’s sexual activities via FaceTime, which by their nature are consensual. Defendants’ Requests for Admission, Request Nos. 14-16, Ex. C; See Exs. B.4-B.7. . Mr. Neal took Ms. Salanzo’s daughter with them on a vacation to Hawaii. Defendants’ Requests for Admission, Request No. 17, Ex. C; Ex. B.14. . Ms. Salanzo was never subjected to unwanted sexual advances by Mr. Neal while she was employed at Cambrian. Defendants’ Requests for Admission, Request No. 20, Ex. C. . Mr. Neal did not terminate Ms. Salanzo’s employment because she rejected his sexual advances. Defendants’ Requests for Admission, Request No. 21, Ex. C. . Ms. Salanzo never made a sexual harassment complaint to anyone at Cambrian while alegedly employed at the company. Defendants’ Requests for Admission, Request No. 22, Ex. C. 10. When her relationship with Mr. Neal ended, Ms. Salanzo moved back to Petaluma, a 45 NOTICE OF MOTION AND DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 10 11 12 13 14 15 16 17 18 19 20 21 2 23 24 25 26 27 28 Iv. 11. 12. 13. 14. 15. 16. 17. California. Defendants’ Requests for Admission, Request No. 18, Ex. C. Ms. Salanzo has admitted that Mr. Neal never sexually harassed her as alleged in the Second Cause of Action in her Complaint. Defendants’ Requests for Admission, Request No. 23, Ex. C. Ms. Salanzo has admitted that Mr. Neal never retaliated against her as alleged in the Third Cause of Action of her Complaint. Defendants’ Requests for Admission, Request No. 24, Ex. C. Ms. Salanzo has admitted that Mr. Neal never discriminated against her on the basis of her sex as alleged in the Fourth Cause of Action in her Complaint. Defendants’ Requests for Admission, Request No. 25, Ex. C. Ms. Salanzo has admitted that Mr. Neal never committed a battery against her as alleged in her Seventh Cause of Action of her Complaint. Defendants’ Requests for Admission, Request No. 26, Ex. C. Ms. Salanzo has admitted that Mr. Neal never committed a sexual battery against her as alleged in her Seventh Cause of Action of her Complaint. Defendants’ Requests for Admission, Request No. 27, Ex. C. Cambrian is a qualified domestic limited liability company in the State of California. It is adequately capitalized. Mr. Neal, the sole managing member observes all corporate formalities. Neal Decl. qf 10-12, Ex. A. Mr. Neal does not have any of Ms. Salanzo’s personal property in his possession. Nor did he ever wrongfully retain her personal property. Neal Decl. § 15. DISCUSSION A. Legal Standard Summary judgment must 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 judgment as a matter of law.” Code Civ. Proc., § 437¢c(c). Summary adjudication, alternatively, is granted if one or more causes of action have no merit. Code Civ. Proc., § 437¢(f)(1). A cause of action has “no merit” if any element ofthe cause of action cannot be established, or there is a complete defense -5- NOTICE OF MOTION AND DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT O o 0 a O y 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 to the cause of action. Id.; see also Aguilar v. Atlantic Richfield Company, 25 Cal. 4th 826, 849 (2001) . To prevail on this motion, defendants must put forth evidence establishing that plaintiff does not possess evidence necessary to raise a genuine triable issue of fact concerning “one or more” of the elements of each cause of action. Aguilar, 25 Cal. 4th at 849. Defendants are not required to conclusively negate every element of plaintiff's causes of action. Id. Alternatively, for summary adjudication, all that must be shown is that one or all of plaintiff's causes of action have “no merit,” in that at least one of the elements of each cause of action cannot be factually supported. Id. Once defendant has met that burden, the burden shifts to plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto, and in doing so, plaintiff cannot “rely upon the mere allegations or denials,” but rather, must “set forth the specific facts showing that a triable issue of material fact exists.” Code Civ. Proc. § 437(c)(0)(1); Aguilar, 25 Cal.4th at 849; Union Bank v. Superior Court, 31 Cal. App. 4th 573, 590 (1995) (“Once the burden shifts as a result of the factually devoid discovery responses, the plaintiff must set forth specific facts which prove the existence ofa trial issue of material fact.”); Andrews v. Foster Wheeler LLC, 138 Cal. App. 4th 96, 107 (2006) (“boilerplate answers that restate [] allegations, or simply provide laundry lists of people and/or documents” are factually devoid and will not prevent the burden from shifting to plaintiff.) If plaintiffs cannot produce evidence supporting their allegations, the Court can only conclude there is none. Collin v. Am. Empire Ins. Co., 21 Cal. App. 4th 787, 808 (1994). Here, Plaintiff sues Defendants for 12 causes of action: (1) Alter Ego Liability; (2) Sexual Harassment; (3) Retaliation; (4) Sex Discrimination; (5) Wrongful Termination in Violation of Public Policy; (6) Battery; (7) Sexual Battery; (8) Sexual Assault and Sexual Battery; (9) Intentional Infliction of Emotional Distress; (10) Negligent Infliction of Emotional Distress; (11) Conversion; and (12) Declaratory and Injunctive Relief. As explained below, there is no merit to any of Plaintiff’s claims, her admission of each and every Request for 56m NOTICE OF MOTION AND DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Admission negatesat least one element of almost every cause of action, and she has provided no evidence to support any of her claims. As a result, summary judgment is warranted. B. Summary Judgment Should Be Granted on Plaintiff's Employment Law Claims (Second, Third, Fourth and Fifth Causes of Action) Plaintiffs Complaint alleges four causes of action related to her alleged wrongful termination in violation of public policy. (See May 18, 2016 Complaint 9 13-42) In particular, Plaintiff alleges that while she was employed at Cambrian properties, she was subjected to unwanted sexual advances, sexual demands, sexual comments, and sexual contact and touchings by Walter Neal. The truth of the matter is the parties were engaged in a consensual relationship and no adverse employment actions were taken by Mr. Neal against Ms. Salanzo as a result of her refusal to entertain Mr. Neal’s allegedly unwanted advances. 1. Applicable Law To establish a prima facie case of sexual harassment under a hostile work environment theory, a plaintiff employee must show that “she was subjected to sexual advances, conduct, or comments that were (1) unwelcome; (2) because of sex; and (3) sufficiently severe or pervasive to alter the conditions of her employment and create an abusive work environment.” Lyle v. Warner Bros. Television Prods., 132 P.3d 211, 220 (Cal. 2006); see also Jones v. Dep't of Corr. & Rehab., 62 Cal. Rptr. 3d 200, 208 (Ct. App. 2007). With respect to a quid pro quo claim, “a plaintiff must show ‘that a tangible employment action resulted from a refusal to submit to a supervisor’s sexual demands.”” Hughes v. Pair, 46 Cal. 4th 1035, 1043, 209 P.3d 963, 971 (2009) (quoting Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 753 (1998)). Crucially, under California law, “a romantic relationship between a supervisor and an employee does not, without more, give rise to a sexual discrimination or sexual harassment claim under either the FEHA or the public policy ofthe state.” Nielsen v. Trofholz Techs., Inc., 750 F.Supp.2d 1157, 1165 (E.D. Cal. 2010) (quoting Proksel, 41 Cal. App. 4th at 1631); see also Leuridan v. California Dep't of Corr. & Rehab., No. E051626, 2012 WL 733898,at *5 (Cal. Ct. App. Mar. 6, 2012) (recognizing “that a coworker's romantic involvement with a coworker does not create a Sofi NOTICE OF MOTION AND DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 hostile work environment within the meaning of the FEHA” and affirming summary judgment because “there was no actionable sexual harassment”). Retaliation under FEHA requires that a plaintiff show (1) “she engaged in a ‘protected activity,” (2) the employer subjected the employee to an adverse employmentaction, and (3) a causal link existed between the protected activity and the employer’s action.” Jones, 62 Cal. Rptr. 3d at 210 (quoting Yanowitz v. L'Oreal USA, Inc., 116 P.3d 1123, 1130 (2005). A prima facie case of discrimination under FEHA requires that the plaintiff must show (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 held, (3) she suffered an adverse employmentaction, and (4) circumstances suggesting the employer acted with a discriminatory motive. Jones, 62 Cal. Rptr. 3d at 210; Scotch v. Art Inst. ofCal., 93 Cal. Rptr. 3d 338, 353 (Ct. App. 2009). 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.” Yau v. Santa Margarita Ford, Inc., 176 Cal. Rptr. 3d 824, 831 (Ct. App. 2014). Where a plaintiff's “claims alleging termination in violation of FEHA fail as a matter of law . . . so too do her claims for wrongful termination in violation of the public policies codified in FEHA.” Kobbervig-Harrell v. Nike, Inc., No. B190656, 2007 WL 1140421, at *12 (Cal. Ct. App. Apr. 18,2007). 2. Ms. Salanzo Has Admitted That She Has No Factual Basis for Her Employment Law Claims There are no material issues of fact with respect to Ms. Salanzo’s Employment Law claims. As she has admitted, she simply has no evidence to support any ofher allegations. With respect to her claim of sexual harassment and discrimination (second and fourth causes of action), during the course of her employment at Cambrian, Ms. Salanzo was engaged in a consensual romantic relationship with Mr. Neal. (Defendants’ Requests for Admission, Request No. 19, Ex. C; Neal and Salanzo text exchange, Feb. 11, 2016, Ex. B.4; Neal and Salanzo text exchange, Feb. 21, 2016, Ex. B.5; Neal and Salanzo text exchange, March 8, 2016, -8- NOTICE OF MOTION AND DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Ex. B.6; Neal and Salanzo text exchange, April 4, 2016, Ex. B.7). Mr. Neal made no unwelcome sexual advances or contact with Ms. Salanzo during this time. (Defendants’ Requests for Admission, Request No. 20, Ex. C) Ms. Salanzo never made any complaints regarding Mr. Neal’s alleged sexual harassment to anyone at Cambrian. (Defendants’ Requests for Admission, Request No. 22, Ex. C). Moreover, Ms. Salanzo has admitted that Mr. Neal never harassed her as alleged in her second cause ofaction. (Defendants’ Requests for Admission, Request No. 23, Ex. C). Nor did he sexually discriminate against her as alleged in the fourth cause of action. (Defendants’ Requests for Admission, Request No. 25, Ex. C). These admissions make it clear that Ms. Salanzo cannot satisfy even the most basic elements of her sexual harassment or discrimination claims. See Nielsen, 750 F.Supp.2d at 1165 (granting summary judgment where the plaintiff’s sexual harassment and discrimination claims rested entirely on a romantic relationship with a supervisor). Without a viable sexual harassment claim, Ms. Salanzo also has no basis for her retaliation claim (third cause of action) since the retaliation claim is premised entirely on Ms. Salanzo’s rejection the unwanted sexual advances of Mr. Neal. (See May 18, 2016 Complaint 9 24-25) This is bolstered by her admission that Mr. Neal never retaliated against her as alleged in her third cause of action. (Defendants’ Requests for Admission, Request No. 24, Ex. C). The admissions that Mr. Neal neither sexually harassed nor discriminated against Ms. Salanzo are also fatal for her fourth cause of action of wrongful termination in violation of public policy because her “claims alleging termination in violation of FEHA fail as a matter of law.” Kobbervig-Harrell No. B190656, 2007 WL 1140421, at *12.! Thus, there can be little question that there is no issue of material fact with respect to Ms. Salanzo’s employment-related claims. C. Summary Judgment Should Be Granted on Plaintiff’s Sexual Assault and Battery Claims (Sixth, Seventh, and Eighth Causes of Action) ! In addition, California is an at-will state and Ms. Salanzo was fired for cause, which is permissible under California state law. See CAL. LAB. CODE ' 2922 (2005) (“An employment, having no specified term, may be terminated at the will of either party on notice to the other.”). -9.- NOTICE OF MOTION AND DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff further alleges three causes of action for sexual assault and battery. These claims are likewise unsupported by any evidence and so summary judgment must be granted as a matter of law. Though Plaintiff initially alleged that she was subjected to unwanted sexual advances, sexual demands, sexual comments, and sexual contact and touchings by Mr. Neal, her subsequent admissions completely undercut these allegations. 1. Applicable Law According to Cal. Civ. Code § 1708.5, a person commits a sexual battery (also referred to as sexual assault) who does any ofthe following: (1) Acts with the intent to cause a harmful or offensive contact with an intimate part of another, and a sexually offensive contact with that person directly or indirectly results.(2) Acts with the intent to cause a harmful or offensive contact with another by use of his or her intimate part, and a sexually offensive contact with that person directly or indirectly results.(3) Acts to cause an imminent apprehension of the conduct described in paragraph (1) or (2), and a sexually offensive contact with that person directly or indirectly results. “A battery is any willful and unlawful use of force or violence upon the person of another.” Pen.Code, § 242. “The slightest degree of touching is sufficient.” People v. Myers 61 Cal.App.4th 328, 335 (1998). 2. Ms. Salanzo Has Admitted That She Has No Factual Basis for Her Sexual Assault and Battery Claims Ms. Salanzo’s sexual assault and battery claims require proof that Mr. Neal intended to make harmful or offensive sexual contact with her or that he was in any way violent or forceful with her. See Cal. Civ. Code § 1708.5; People v. Myers 61 Cal.App.4th 328, 335 (1998). She has offered no such proof because none exists. As discussed infra section IV.B.2, the only evidence that exists of Mr. Neal’s sexual contact with Ms. Salanzo demonstrates that it was entirely consensual, indeed it was welcomed and encouraged. Nor is there any indication that he used force of any kind with Ms. Salanzo. Further, Ms. Salanzo has admitted that Mr. Neal did not commit a battery against her as alleged in her Sixth Cause of Action and that he did not commit a sexual battery against her as alleged in her Seventh Cause of Action. (Defendants’ Requests for Admission, Request Nos. 26- -10 - NOTICE OF MOTION AND DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT N e l E E ) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 27, Ex. C) These admissions are also conclusive with respect to her Eighth Cause of Action of Sexual Assault and Sexual Battery because absent any evidence to the contrary, it can be reasonably inferred the admission with respect to her Seventh Cause of Action applies to all allegations of sexual battery and assault. Clearly, there is no issue of triable fact and summary judgment may be granted as a matter of law with respect to Ms. Salanzo’s Sixth, Seventh, and Eighth Causes of Action. D. Summary Judgment Should Be Granted on Plaintif’s Emotional Distress Claims (Ninth and Tenth Causes of Action) Ms. Salanzo alleges two causes of action for the intentional and negligent infliction of emotional distress. Both of these claims rely on Ms. Salanzo’s allegations related to Mr. Neal’s purported sexual misconduct. (See May 18, 2016, Complaint 99 64, 71) Those allegations have been thoroughly debunked, so there is nothing to sustain either of her emotional distress claims and summary judgment may be granted as a matter of law. 1. Applicable Law To state a claim for intentional infliction of emotional distress, Plaintiff must plead “(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) ... suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct.” Atkinson v. United States, No. 14-CV-16 JLS (JMA), 2016 WL 9455261, at *7 (S.D. Cal. Jan. 4, 2016), aff'd sub nom. Atkinson v. United States Gov't, 692 F. App'x 830 (9th Cir. 2017), cert. denied sub nom. Atkinson v. United States, 138 S. Ct. 2581 (2018) (dismissing plaintiff’s intentional infliction of emotional distress) In California, “the negligent causing of emotional distress is not an independent tort but the tort of negligence... The traditional elements of duty, breach of duty, causation, and damages apply.” Burger v. Pond, 224 Cal. App. 3d 597, 603, 273 Cal. Rptr. 709, 714 (Ct. App. 1990) (internalcitations omitted). “Recovery is available only if the emotional distress arises out of the defendant's breach of some other legal duty and the emotional distress is proximately caused by that breach of duty . . . a breach of the duty must threaten physical injury, not simply damage to “11 - NOTICE OF MOTION AND DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 property or financial interests.” Potter v. Firestone Tire & Rubber Co., 6 Cal. 4th 965, 985, 863 P.2d 795 (1993) 2. There is No Issue of Material Fact Regarding Ms. Salanzo’s Claims of Emotional Distress. To sustain her claim for intentional infliction of emotion distress, Ms. Salanzo must provide evidence of “extreme and outrageous” behavior on the part of Mr. Neal. Atkinson, No. 14-CV-16 JLS (JMA), 2016 WL 9455261, at *7. The evidence shows only a consensual, romantic relationship between the couple. Nothing remotely “extreme or outrageous.” As Ms. Salanzo has admitted, from January through May 2016 she and Mr. Neal were involved in a consensual sexual relationship. (Defendants’ Requests for Admission, Request Nos. 4-8, Ex. C). Similarly, with respect to her improperly pled negligent infliction of emotional distress claim, even assuming Mr. Neal did owe Ms. Salanzo a duty as her purported employer (defendants do not concede that he did), there is no evidence that Mr. Neal breached any duty Ms. Salanzo. Throughout the entire course of her employment at Cambrian, Mr. Neal and Ms. Salanzo were engaged in a consensual sexual relationship. As Ms. Salanzo has admitted, she was “not subject to any unwanted sexual advances” while working at Cambrian. (Defendants’ Requests for Admission, Request No. 20, Ex. C). Nor was she terminated from her position for rejecting these purported advances. (Defendants’ Requests for Admission, Request No. 21, Ex. C). Thus, Mr. Neal did not breach any duty he possibly owed Ms. Salanzo. Absent a breach of duty on the part of Mr. Neal, the Court need not reach an analysis of any purported damages. Nevertheless, there is no evidence of any such damages, especially any physical damage as a result of Mr. Neal’s contact with Ms. Salanzo. Without evidence of either breach or damages, Ms. Salanzo cannot sustain the most basic elements of a negligence claim. Clearly there are no material issues fact with respect to either of Ms. Salanzo’s claims related to emotional distress. Therefore, the Court must grant summary judgmentas to both. E. Summary Judgment Should Be Granted on Plaintiff’s Conversion Claim (Eleventh Cause of Action) -12 - NOTICE OF MOTION AND DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Ms. Salanzo claims that Mr. Neal wrongfully converted her personal property. Though she fails to describe or identify this personal property, the evidence is clear on this claim - Mr. Neal is not in possession of any of Ms. Salanzo’s personal property. In order to sustain her cause of action for conversion, Ms. Salanzo must demonstrate “(1) [her] ownership or right to possession of the property at the time of the conversion, (2) defendant's conversion by a wrongful act or disposition of plaintiff's property rights, and (3) damages.” Tallmadge v. Cty. ofLos Angeles, 191 Cal. App. 3d 251, 256, 236 Cal. Rptr. 338, 342 (Ct. App. 1987). She provides no evidence to support any of these elements. Mr. Neal and Ms. Salazno lived together in their shared residence. When Ms. Salanzo elected to end their relationship, she packed her own belongings and return to Petaluma. (Neal Decl. § 14). Any items she left behind were through her own actions, not any “wrongful act” on the part of Mr. Neal. Tallmadge, 191 Cal. App. 3d 251, 256 (Ct. App. 1987). At no point did Mr. Nea] intentionally retain any of Ms. Salanzo’s belongings, and in fact she was admitted to the apartment without Neal present to remove all of her belongings and did so. (Neal Decl. § 14). There are no issues of material fact here and no sustainable claim for conversion. Summary judgment must be granted in favor of defendants. F. Summary Judgment Should Be Granted on Plaintiff’s Alter Ego Liability Claim (First Cause of Action) Plaintiff further alleges a cause of action foralter ego liability, which she has provided no evidence in to support. Indeed, the evidence expressly contradicts it. Therefore,it is insufficient to state a triable issue of fact and must be rejected by this Court. To sustain a claim for alter ego liability, there are “two general requirements: '(1) that there be such unity of interest and ownership that the separate personalities of the corporation and the individual no longer exist and (2) that, if the acts are treated as those of the corporation alone, an inequitable result will follow." Mid-Century Ins. Co. v. Gardner, 9 Cal. App. 4th 1205, 1212, 11 Cal. Rptr. 2d 918 (1992). -13 - NOTICE OF MOTION AND DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT O o 0 a 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Typically, alter ego liability applies to creditors seeking to hold corporate officers personally liable. See Mid-Century Ins. Co. v. Gardner, 9 Cal. App. 4th 1205, 1213, 11 Cal. Rptr. 2d 918 (1992) (“The purpose of the doctrine is not to protect every unsatisfied creditor, but rather to afford him protection, where some conduct amounting to badfaith makes it inequitable . . . for the equitable owner ofa corporation to hide behind its corporate veil.”) All of Ms. Salanzo’s claims implicate Mr. Neal personally, so it is unclear what she hopes to achieve by invoking the doctrine of alter ego liability. Even if alter ego liability were appropriate in this case, Mr. Neal has undertaken the necessary formalities to maintain Cambrian as a separate entity. (Neal. Decl. J 9-11) He does not co-mingle funds and the company is adequately capitalized. (Neal. Decl. § 11) As with all of her other claims, Ms. Salanzo has provided no evidence to the contrary. Moreover, as demonstrated above, each of the employment-based claims must be dismissed on summary judgment since the admitted Requests for Admissions refute at least one element of each cause of action. Since there are no employment-based claims, there is no claim that implicates alter ego liability. As a result, summary judgment on the first cause of action should be granted as a matter of law. G. Summary Judgment Should Be Granted on Plaintiff's Declaratory and Injunctive Relief Claim (Twelfth Cause of Action) Ms. Salanzo alleges a cause of action for declaratory and injunctive relief. Specifically, she asks for a declaration that Mr. Neal's actions constituted unlawful sexual harassment, discrimination, and retaliation. (See May 18, 2016 Complaint § 82) Further, she requests an injunction prohibiting him from further sexual harassment, discrimination, or retaliation. (See May 18, 2016 Complaint § 16-17) This Court has the authority to grant summary judgment of a claim for injunctive and declaratory relief. “[D]eclaratory relief does notlie in a case in which a complaint makes no case on the merits and would merely produce a useless trial.” Dollinger DeAnza Assocs. v. Chicago Title Ins. Co., 199 Cal. App. 4th 1132, 1156, 131 Cal. Rptr. 3d 596, 613 (2011). -14 - NOTICE OF MOTION AND DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT NR E E E E e 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 As demonstrated fully in the foregoing brief, Ms. Salanzo’s complaint makes no case on the merits. She has admitted that Mr. Neal did not sexually harass her, retaliate against her, or discriminate against her. (Defendants’ Requests for Admission, Request Nos. 23-25, Ex. C) Therefore, this Court may “properly grant summary adjudication on [the] claim for declaratory relief.” Dollinger DeAnza Assocs., 199 Cal. App. 4th at 1156. IV. CONCLUSION Based on the foregoing, Defendants respectfully request that summary judgment be entered in their favor on each of Plaintiffs’ twelve causes of action. Dated: September 1 2018. MCDONALD CARANO LLP By:35dNodge JESSICA WOELFEL Attorneysfor Defendants Walter Neal, and Cambrian Properties, LLC -15 - NOTICE OF MOTION AND DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT H W ~ N Y 0 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE BY OVERNIGHT MAIL Case No.: CV130056 [ am over the age of eighteen years and not a party to the within action or proceeding; that I am an employee of McDonald Carano Wilson LLP, with a business address of 100 West Liberty Street, 10" Floor, Reno, Nevada, 89501. That on the yo day of September, 2018, I caused an envelope, containing a true and correct copy of the foregoing document to be deposited in the U.S. Mail, at Reno, Nevada, with postage prepaid, addressed to the following: Katie Salzano 1628 Cabernet Court Petaluma, CA 94954 I declare under penalty of perjury that the foregoing is true and correct. Executed on September “\, 2018 at Reno, Nevada. ~~~An employee of McDonald Carano LLP -16 - NOTICE OF MOTION AND DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT