Mobileone_llcs_reply_to_plaintiffs_opposition_to_motion_for_summary_judgment_or_in_the_alternative_summary_adjudicationReplyCal. Super. - 1st Dist.May 30, 2018A PROFESSIO SAN BUCHALTER NAL CORPORATION DIEGO 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Electronically wo 6/52020 By [s/ Jennifer Tannous Deputy Clerk BUCHALTER A Professional Corporation TRACY A. WARREN (SBN: 228013) KATHRYN B. FOX (SBN: 279705) RICK A. WALTMAN (SBN: 306463) 655 West Broadway, Suite 1625 San Diego, CA 92101 Telephone: 619.219.5335 Email: twarren@buchalter.com Attorneys for Defendant MOBILEONE LLC (erroneously sued as “MobileOne, LLC”) SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN MATEO - SOUTHERN BRANCH KIKI CHESS, an individual, CASE NO. 18-CIV-02736 Plaintiff, MOBILEONE LLC’S REPLY TO PLAINTIFF’S OPPOSITION TO Vv. MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, MOBILEONE, LLC, an Arizona limited SUMMARY ADJUDICATION liability company; SHANE PIAZ, an individual; STEVE PERRY, an individual; DAN PERRY, an individual; and DOES 1 through 50, inclusive, Defendants. BN 40736077v1 MOBILEONE LLC’S REPLY TO PLAINTIFF’S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION A PROFE BUCHALTER SSIONAL CORPORATION SAN DIEGO EA N ~N O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I. INTRODUCTION Plaintiff Kiki Chess’ (“Plaintiff”) Opposition is cloaked in inadmissible evidence, founded on pure speculation, and lacks any triable issue of material fact. Summary judgment is proper. Plaintiff was terminated from her employment with Defendant MobileOne LLC (“MobileOne”) after receiving numerous disciplinary write-ups (five in the last five months of her employment between January and May 2017), including multiple write-ups for inaccurate inventory. From January to April 2017, she publicly lamented she expected her termination given her poor disciplinary record. Plaintiff, who became pregnant, did not request or need an accommodation and did not engage in protected activity. Plaintiff now argues that her pregnancy should rid her of disciplinary problems, but she fails to cite to case law, evidence or even logic in support of this assertion. Summary judgment should be granted as to all Defendants as to all issues. II. UNDISPUTED MATERIAL FACTS RENDER SUMMARY JUDGMENT PROPER The facts shine a light on Plaintiff’s expectation of her employment termination. It is undisputed that on January 6, 2017, Plaintiff sent a message to a coworker in which she said that she thought she was going to be receiving her final paycheck soon. (UMF 24.) It is also undisputed that on January 22, 2017, Plaintiff complained to a coworker that it was “nice working with ya see if I last longer than feb.” (UMF 26.) It is further undisputed that on April 20, 2017, Plaintiff wrote to a coworker, “they are getting rid of me pretty sure.” (UMF 27.) Additionally, it is undisputed that Plaintiff was not seeking a medical leave or another form of accommodation at the time she disclosed her pregnancy, but that she was merely informing MobileOne about it. (UMF 45.) It is also undisputed that Plaintiff did not seek time off for doctor’s appointments or any other pregnancy-related reason between the time she notified MobileOne of her pregnancy and the termination of her employment. (UMF 47.) These admissions are fatal to Plaintiff’s causes of action and prayers for damages. III. PLAINTIFF'S PROCEDURAL DEFICIENCIES WARRANT GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT / ADJUDICATION First, the majority of Plaintiff's Opposition lacks evidentiary support. A court’s consideration of a summary judgment motion is limited to the papers submitted. (Code Civ. Proc. BN 40736077v1 1 MOBILEONE LLC’S REPLY TO PLAINTIFF’S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION A PROFESSIO SAN BUCHALTER NAL CORPORATION DIEGO EA N ~N O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 § 437¢c(c); Guz v. Bechtel National Inc. (2000) 24 Cal. App.4th 317, 334.) “[T]he court shall consider all of the evidence set forth in the papers, except that to which objections have been made and sustained by the court. (Code Civ. Proc. § 437¢c(c); see Guz 24 Cal.App.4th at 334.) Nearly all of the evidence Plaintiff submits in support of her opposition fails and should not be considered by the Court. (See Defs.” Objections to Pl.’s Evidence.) The Court should also refuse to consider any evidence not filed or served. (Code Civ. Proc. § 437¢(c); see Guz, 24 Cal. App.4th at 334.) Plaintiff failed to file or serve any of the pages of Plaintiff’s deposition transcript that she cites in support of her Opposition. (Declaration of Kathryn B. Fox (“Fox Decl.”) 9 2-3, Exhs. N-O; see Ct. Dock.) Plaintiff cited to her deposition testimony when attempting to dispute UMF Nos. 17-23, 37-39, 49, 52-54, 57-58, and 61-76. (See PL.’s Opp. to Defs.” Separate Statement.) Therefore, the Court should deem each of these UMFs as “Undisputed” and enter summary judgment in favor of all Defendants. Similarly, Plaintiff also failed to file or serve the Declaration of Plaintiff’s counsel, Jose Maria D. Patino, Jr. (Fox Decl. 9 2-3, Exhs. N-O; see Ct. Dock.) Plaintiff therefore lacks evidence and disputed facts to support many of the arguments she makes in her Opposition. (Code Civ. Proc. § 437c(c); see Guz 24 Cal. App.4th at 334.) Specifically, she cited to the Patino Declaration when attempting to dispute UMFs Nos. 12-14, 62-63, 68-70 and 72-76. (See P1.’s Opp. to Defs.” Separate Statement.) Yet, her failure to provide evidence in support of her assertions warrants this Court finding that these UMFs are “Undisputed” and that Defendants are entitled to summary judgment on all causes of action. In light of the above, the Court should only consider Plaintiff’s responses to UMFs 25, 30, 50, 55, 56 and 60, subject to Defendants’ Objections, when deciding whether Defendants are entitled to summary judgment/adjudication in this case. (Code Civ. Proc. § 437c(c); see Guz 24 Cal. App.4th at 334.) Second, Plaintiff’s Opposition was not timely served. (Fox Decl. qf 2-3, Exhs. N-O.) Plaintiff was required to file and serve her Opposition by May 29, 2020. (Court Order, dated May 8, 2020, 9 5(c).) Yet, she did not do so until May 30, 2020. (Fox Decl. 2, Ex. N.) Plaintiff also failed to serve co-defense counsel until June 2, 2020, and did so only after the error was brought to BN 40736077v1 2 MOBILEONE LLC’S REPLY TO PLAINTIFF’S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION A PROFE BUCHALTER SSIONAL CORPORATION SAN DIEGO EA N ~N O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 her attention. (Fox Decl. § 3, Ex. O.) In addition, not only was service late, but all three Proofs of Service filed with the Court are inaccurate as all declare service was effected on May 29, 2020. (See Code Civ. Proc. § 1010.6(b)(2)(B)(i), 1013b(b)(2).) Third, Plaintiff did not file or serve her own Separate Statement of Undisputed Material Facts, despite attempting to include additional facts in her response to the UMFs. (Fox Decl. qf 2- 3, Exhs. N-O; see Ct. Dock.) Any such new facts should not be considered given Plaintiff’s failure to follow the requirements for presenting material facts and evidence to the Court in opposition to an MSJ. (See Cal. Rules of Court, rule 3.1350()(3).) Fourth, the case law cited by Plaintiff in her Opposition is nearly entirely cut and pasted from Defendants’ MSJ.! Her failure to provide the Court with a legal analysis focused on the facts and details of her case weighs in favor of the Court giving less weight to Plaintiff’s arguments and her “version of facts.” (See Pl.’s Opp. 15:19.) Plaintiff’s evidentiary and procedural failings invite granting summary judgment in favor of all Defendants. IV. THE INDIVIDUAL DEFENDANTS ARE ENTITLED TO SUMMARY ADJUDICATION OF THE FIRST THROUGH FIFTH CAUSES OF ACTION Plaintiffs do not dispute that summary adjudication should be granted in favor of Defendants Shane Paiz, Steve Perry and Dan Perry as to the first, second, third, fourth and fifth causes of action because these claims cannot be brought against an individual (See Pl.’s Opp. to Defs.” Separate Statement.) V. MOBILEONE IS ENTITLED TO SUMMARY ADJUDICATION OF THE FIRST, SECOND, THIRD, FOURTH AND FIFTH CAUSES OF ACTION FOR CLAIMS UNDER THE FEHA Plaintiff alleges five causes of action against MobileOne under the Fair Employment and Housing Act (“FEHA”): (1) pregnancy discrimination, (2) retaliation, (3) wrongful termination, (4) failure to accommodate, and (5) failure to engage in the interactive process. Plaintiff lacks any evidence to dispute any of the UMFs and to create a triable issue of material fact. As Plaintiff admits in her Opposition, it is based on her “version of facts.” (Pl.’s Opp. 15:19.) But, speculation is not ! Plaintiff’s “cut and paste” of Defendants’ case law include: pregnancy discrimination (Defs.” Mot. 13:13-16; PL.’s Opp. 7:17-20); retaliation (Defs.” Mot. 15:9-16; P1.”s Opp. 11:4-11); wrongful termination (Defs.” Mot. 16:10-13; PL.’s Opp. 12:3-10); failure to engage in the interactive process (Defs.” Mot. 17:10-11; P1.’s Opp. 13:15-16); [IED (Defs.” Mot. 17:19-18:7; P1.’s Opp. 13:27-14:11); and punitive damages (Defs.” Mot. 19:5-14; P1.’s Opp. 16:3-13). BN 40736077v1 3 MOBILEONE LLC’S REPLY TO PLAINTIFF’S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION A PROFE BUCHALTER SSIONAL CORPORATION SAN DIEGO EA N ~N O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 enough. (Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th 1718, 1734-35.) Summary adjudication of each FEHA claim is warranted. A. Summary Adjudication Should Be Entered In Favor of MobileOne As To Her Pregnancy Discrimination Claim Plaintiff failure to competently perform her job is undisputed. Plaintiff received twelve disciplinary actions in just over two years while employed with MobileOne. (UMF 50.) Between January 2017 and the termination of her employment in May 2017, Plaintiff received five disciplinary actions. (UMF 19-21.) Plaintiff even admitted she expressed to coworkers on multiple occasions in 2017 that was nervous about being terminated from MobileOne. (UMF 24, 26-27.) And, in her Opposition, Plaintiff admits she had “anxiety regarding her job security.” (Pl.’s Opp. 10:24.) She was terminated due to “excessive write ups” and inventory discrepancies. (UMF 57.) Defendants submitted ample evidence in support of their MSJ and Plaintiffs have not submitted any admissible, non-speculative evidence to show that the reasons for her termination were pretextual. “Speculation cannot be regarded as substantial responsive evidence,” and the plaintiff cannot establish pretext through mere "belief' that his employer discriminated against her. (See Martin, 3 Cal.App.4th at 1734-1735.) ““When opposition to a motion for summary judgment is based on inferences, those inferences must be reasonably deducible from the evidence, and not such as are derived from speculation, conjecture, imagination, or guesswork.” (Mills v. U.S. Bank (2008) 166 Cal.App.4th 871, 894; citing Waschek v. Department of Motor Vehicles (1997) 59 Cal. App.4th 640, 647.) Here, Plaintiff’s argues that a triable material facts exist by putting forth what she calls her “version of facts.” (Pl.’s Opp. 15:19) Plaintiff claims that her five disciplinary notices between January 2017 and May 2017 should not be considered because Plaintiff’s coworkers may have affected the inventory count, may have generated disciplinary write ups, and may have used Plaintiff’s login and password to sign them on her behalf. (Pl.’s Opp. 10:16-23, see specifically 10:20-21 (“If they did so, then those generated write-ups would serve as a pretext for her termination,” emphasis added.); see also Pl.’s Opp. 9:17-18 (claiming that at most Plaintiff’s version of facts suggests a discriminatory motive), 9:21 (same), 10:28 (same), 10:7-9 (speculating that it “would not be a stretch” to assume Defendant Steve Perry’s motives were unlawful). She has no evidence to support these accusations. Plaintiff’s BN 40736077v1 4 MOBILEONE LLC’S REPLY TO PLAINTIFF’S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION A PROFE BUCHALTER SSIONAL CORPORATION SAN DIEGO EA N ~N O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 attempt to create a triable issue of material fact solely based on speculation warrants the entry of summary adjudication. In addition, Plaintiff’s arguments are void of logic. She argues that evidence of her pregnancy should have been apparent to Defendants or that they should have been able to “connect the dots” after she disclosed her pregnancy because she took ten (10) days off from work in February 2017 to deal with symptoms caused by her pregnancy. (PL.’s Opp. 9:21-28.) She also admits she was eight (8) weeks pregnant on May 15,2017. (P1.’s Opp. 5:3-4). Eight (8) weeks prior to May 15th is March 20, 2017. Thus, Plaintiff's argument that her illness in February 2017 was due to her pregnancy or that Defendants should have “connected the dots” and assumed Plaintiff needed an accommodation are not supported by admissible evidence. Instead, by putting forth this argument, Plaintiff attempts to mislead the Court. Curiously, Plaintiff argues that Ms. Le Blanc’s letter notifying Plaintiff of her rights is evidence MobileOne was aware Plaintiff was disabled. However, Ms. Le Blanc’s initial message to Plaintiff was “Hi Kiki, []] If you need maternity leave or an accommodation please let me know. I can send you the forms. [9] Let me know if you have any questions.” (Defs.” Exh. B-4, p. 2.) When Plaintiff responded by writing, “Yes please send me all the information,” Ms. Le Blanc did so, writing, “Hi Kiki, [q] All I need from you will be a doctors (sic) note that has your first date out and your return to work date. [9] Attached are the documents I am required to give you. They do not need to be returned or filled out they are for your information only. [] Let me know if you have any questions.” (Defs.” Exh. B-4, p. 1.) This was nothing more than MobileOne providing Plaintiff basic information. This should not be twisted to attempt to avoid summary judgment. It does not create a triable issue. Summary adjudication should be granted as to this claim. The indisputable evidence also shows that Plaintiff was repeatedly disciplined for inventory discrepancies. (See UMFs 10-4, 17-21 and 48.) She now attempts to avoid summary judgment by asserting that she was only responsible for a lesser amount of missing inventory than that which Defendants attribute to her. (See PL.’s Opp. 14:25-27.) Not only is Plaintiff's evidence in support of this argument is inadmissible and should not be considered by the Court (see Defs.” Objection to PL.’s Evidence), but even if it were admissible, it does not create a triable issue. Plaintiff admits BN 40736077v1 5 MOBILEONE LLC’S REPLY TO PLAINTIFF’S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION A PROFE BUCHALTER SSIONAL CORPORATION SAN DIEGO EA N ~N O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 that she violated company policy even by her own “version of facts.” Lastly, Plaintiff’s counsel’s argument that the progression of his client’s pregnancy would inevitably “render[] her a burden and not an asset” and that her pregnancy as “present[ed] an insurmountable handicap” is offensive. (PL.’s Opp. at 9:26-10:3, 10:7-9.) To be clear, Plaintiff’s counsel does not argue that this was how Defendants felt about Plaintiff’s pregnancy, but about how “anyone else could easily apprehend” how Plaintiff’s pregnancy would progress. (P1.’s Opp. 9:26-10:3.) Describing Plaintiff’s pregnancy in such a manner has no place here. Summary adjudication should be granted as to this cause of action. B. Summary Adjudication Should Be Entered In Favor of MobileOne As To Her Retaliation Claim To avoid summary adjudication, Plaintiff must establish that she engaged in protected activity and a causal link between that protected activity and any adverse employment action. (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.) Thus, she must show that she actually engaged in protected activity; not that she may do so in the future. (Gov. Code § 12940(h) (prohibiting an adverse action because the employee “has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part”); Yanowitz, 36 Cal.4th at 1042.) Plaintiff did not engage in a protected activity. In her Opposition, she admits she left MobileOne “before she had the chance to exercise her right to PDL, intermittent leave or other accommodations.” (P1.’s Opp. 11:17-18, emphasis added.) She also admits she was not seeking a medical leave or another form of accommodation at the time she disclosed her pregnancy, but that she was merely informing MobileOne about it. (UMF 45.) She also admits she did not seek time off for doctor’s appointments or any other pregnancy-related reason between the time she notified MobileOne of her pregnancy and the termination of her employment. (UMF 47.) Plaintiff bases her argument on her claim that she took “ten days off due to pregnancy-related symptoms” in February 2017. (PL’s Opp. 11:15-17.) As discussed above, her time off in February 2017 could not be related to her pregnancy. Likewise, Plaintiff cannot sustain her claim by asserting that she was subjected to an adverse employment action based on actions Plaintiff may take in the future. (Pl.’s Opp. 11:15-25.) She argues she was terminated because of her “forthcoming requests for BN 40736077v1 6 MOBILEONE LLC’S REPLY TO PLAINTIFF’S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION A PROFE BUCHALTER SSIONAL CORPORATION SAN DIEGO EA N ~N O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 accommodations” and because she “would be seeking reasonable accommodations.” (P1.’s Opp. 11-19-23.) Neither of these can serve as the basis of a retaliation claim. Plaintiff did not engage in a protected activity and cannot establish her prima facie case. Summary adjudication is proper. C. Summary Adjudication Should Be Entered In Favor of MobileOne As To Plaintiff’s Wrongful Termination Claim A wrongful termination claim will fail where it is derivative of discrimination and retaliation claims, and where those claims fail to survive summary adjudication. (Stevenson v. Superior Court (1997) 16 Cal.4th 880, 904.) For the reasons set forth above, these claims fail as a matter of law and the wrongful termination claim will also fail. Summary adjudication is proper. D. Summary Adjudication Should Be Entered In Favor of MobileOne As To Plaintiff’s Failure to Accommodate Claim Plaintiff cannot sustain her prima facie case because she did not have a disability covered by the FEHA and did not suffer any harm. (CACI 2541; Gov Code §§ 12940(a)(1)-(2), 12940(m); Wilson v. County of Orange (2009) 169 Cal. App.4th 1185, 1192.) “Under the FEHA, ‘reasonable accommodation’ means ‘a modification or adjustment to the workplace that enables the employee to perform the essential functions of the job held or desired.” (Cuiellette v. City of Los Angeles (2011) 194 Cal.App.4th 757, 766.) To avoid summary judgment, Plaintiff must also show identify the accommodation that would have been available at the time the interactive process should have occurred. (Scotch v. Art Inst. (2009) 173 Cal. App.4th 986, 1018-19.) Plaintiff cannot meet this burden. She cannot show she was unable to perform the essential functions of her job and needed an accommodation to do so. Plaintiff admits she was not seeking a medical leave or another form of accommodation at the time she disclosed her pregnancy, but that she was merely informing MobileOne about it. (UMF 45.) She also admits she did not seek time off for doctor’s appointments or any other pregnancy-related reason between the time she notified MobileOne of her pregnancy and the termination of her employment. (UMF 47.) Her admissions are fatal to her claim. Contrary to Plaintiff’s assertion, Defendants do not argue Plaintiff was fully accommodated, Defendants argue Plaintiff cannot show she needed or requested an accommodation. Plaintiff also fails to identify the reasonable accommodation that she claims should have been provided to her. That is because no accommodation was needed as she was not disabled. BN 40736077v1 7 MOBILEONE LLC’S REPLY TO PLAINTIFF’S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION A PROFE BUCHALTER SSIONAL CORPORATION SAN DIEGO EA N ~N O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 As discussed above, Ms. Le Blanc’s letter notifying her of her rights is not evidence that MobileOne was aware or considered Plaintiff to be disabled. The letter merely shows that MobileOne was willing to accommodate if she needed an accommodation in the future due to her pregnancy. This does not support a failure to accommodate claim. Summary adjudication is proper. E. Summary Adjudication Should Be Entered In Favor of MobileOne As To Plaintiff’s Claim that MobileOne Failed to Engage in the Interactive Process Plaintiff cites to case law supporting Defendants’ position, and then argues the converse is also true without reference to any legal authority. (See Pl.’s Opp. 13:15-16.) This procedural flaw renders summary adjudication of this claim proper. Plaintiff argues only that (1) this claim should remain because summary adjudication should be granted as to the accommodation claim, and (2) MobileOne was required to “revisit[] the issues that [it] allege[s] [it] had with [Plaintiff’s] performance” (Pl.’s Opp. 13:19-20). First, for the reasons discussed above, summary adjudication should be granted as to the failure to accommodate claim and, therefore, also as to the interactive process claim. (See Hanson v. Lucky Stores, Inc. (1999) 74 Cal. App.4th 215, 228.) Second, there is no basis in law (nor does Plaintiff provide one) to support her assertion that MobileOne was required to revisit or excuse Plaintiff’s twelve disciplinary actions or the five she received in the past five months upon hearing that she was pregnant. Summary adjudication should be entered. VI. SUMMARY ADJUDICATION SHOULD BE ENTERED IN FAVOR OF ALL DEFENDANTS AS TO PLAINTIFF'S INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS CLAIM A termination by itself does not constitute “outrageous” conduct. (Buscemi v. McDonnell Douglas Corp. (9th Cir. 1984) 736 P.2d 1348, 1352 (applying Calif. Law).) It is well-settled law an [IED claim may not arise from mere personnel management activity regardless of the offending individual’s motivations for the activity. (Janken v. GM Hughes Elec. (1996) 46 Cal. App.4th 55, 80.) Where there is no evidence of outrageous conduct on the part of the defendants, entry of summary judgment is proper. (Fowler y. Varian Assocs. (1987) 196 Cal.App.3d 34, 45.) As discussed above, the indisputable evidence shows Plaintiff was repeatedly disciplined for inventory discrepancies. (See UMFs 10-4, 17-21 and 48.) Her arguments to the contrary are not supported by admissible evidence and do not rise to the level of outrageous conduct that exceeds the bounds of civilized society. She admits she violated company policy even by her own “version BN 40736077v1 8 MOBILEONE LLC’S REPLY TO PLAINTIFF’S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION A PROFE BUCHALTER SSIONAL CORPORATION SAN DIEGO EA N ~N O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 of facts.” In addition, Plaintiffs fantastical story of fraud and a conspiracy against her is not supported by evidence. It is speculation that does not create a triable issue of material fact. Moreover, Plaintiff does not address, and therefore concedes, that Plaintiff’s claim for IIED is preempted by the Workers’ Compensation Act (“WCA”). “Emotional injuries caused by workplace discipline, including termination,” are preempted by the WCA and the employee may not avoid WCA preemption by “characterizing the employer’s decisions as manifestly unfair, outrageous, ... or intended to cause emotional disturbance.” (Yau v Santa Margarita Ford, Inc. (2014) 229 Cal.App.4th 144, 161; see Janken v. GM Hughes Elec. (1996) 46 Cal.App.4th 55, 80 (holding that no claim for ITED can arise merely from the termination of employment, even if it was motivated by discriminatory animus).) Summary adjudication should be granted. VII. SUMMARY ADJUDICATION SHOULD BE ENTERED AS TO PLAINTIFF'S CLAIM FOR PUNITIVE DAMAGES Plaintiff relies solely on two conclusory sentences to dispute that Defendants’ MSA should not be granted as to her claim for punitive damages. It is clear Plaintiff’s arguments are based on pure speculation given that she begins one of her two sentence with the phrase: “If they did as described above” when referring to Plaintiff’s “version of facts.” (PL.’s Opp. 15:19, 16:14-17, emphasis added.) Plaintiff has no “clear and convincing evidence” that anyone engaged in an act of “oppression, fraud, or malice” toward her. She was terminated from her employment based upon MobileOne’s good faith conclusion that she violated its policies and procedures. Plaintiffs claim for punitive damages should be summarily dismissed. VIII. A HEARING AND DECISION ON DEFENDANTS’ MOTION SHOULD NOT BE FURTHER DELAYED; PLAINTIFF NEVER ATTEMPTED TO TAKE OR SCHEDULE DEPOSITIONS Plaintiff argues summary judgment/adjudication is improper because she has not deposed any of the individual Defendants or any of Defendants’ witnesses. Yet, she never attempted to do so. (Fox Decl. q 4.) Her Opposition is void of any evidence or argument that she served a notice of deposition or even attempted to schedule the deposition of any defense witness. She failed to attempt to take a deposition even though she filed this action on May 30, 2018. (Ct. Dock.) And, she failed to utilize the additional time provided by the Court’s COVID-19-related closure to take a deposition (the hearing on Defendants’ MSJ was set for April 28, 2020, and Plaintiff’s Opposition BN 40736077v1 9 MOBILEONE LLC’S REPLY TO PLAINTIFF’S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION EA N ~N O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 BUCHALTER A PROFESSIONAL CORPORATION SAN DIEGO was due April 14, 2020 prior to the Court’s closure). (Code Civ. Proc. § 437¢(b)(2).) Her attorneys did not even reference their desire to take a deposition(s) during various email correspondence or during a telephone call with MobileOne’s counsel on May 11, 2020. (Fox Decl. 44.) She had ample time to take (or at the very least attempt to take) a deposition. Her expressed desire to take a deposition for the first time in her opposition papers should not be indulged. Even so, her mere reference to the fact that such depositions have not occurred is not sufficient reason for denying Defendant’s Motion. (Code Civ. Proc. § 437¢c(e), (h).) IX. PLAINTIFF'S DEPOSITION TESTIMONY FILED BY DEFENDANTS IN SUPPORT OF THE MSJ IS ADMISSIBLE; PLAINTIFF DID NOT OBJECT Plaintiff has filed both a wage and hour class action and this instant litigation against MobileOne. She is represented by Seterah Law Group in both cases, and William Pao of the Seterah Law Group defended Plaintiff at her November 26, 2019 deposition. (Defs.” Exh. B.) The deposition concerned her employment with MobileOne and questions were asked that elicited responses relevant in both matters. Plaintiff did not file an objection to the admissibility of her deposition testimony and even attempts to cite to it herself, though failing to file and serve it renders her attempt futile. (See Ct. Dock.) Her attempt to avoid summary judgment/adjudication on these grounds is unconvincing. X. CONCLUSION MobileOne respectfully request that summary judgment be entered as Plaintiff failed to provide evidentiary or legal support that any of her claims are valid or that a dispute of material fact exists. DATED: June 5, 2020 BUCHALTER A Professional Corporation Lo Yat TRACY A. WARREN KATHRYN B. FOX RICK A. WALTMAN Attorneys for Defendant MobileOne, LLC BN 40736077v1 10 MOBILEONE LLC’S REPLY TO PLAINTIFF’S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION
