Notice Entry of Order

Cal. Super. - 6th Dist.September 7, 2018

Gordon Rees Scully Mansukhani, LLP 275 Battery Street, Suite 2000 San Francisco, CA 94111 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 180V334546 Santa Clara - Civil LINDA M. MORONEY (SBN: 172668) NIMA NAYEBI (SBN: 283021) GORDON REES SCULLY MANSUKHANI, LLP 275 Battery Street, Suite 2000 San Francisco, CA 941 11 Telephone: (415) 986-5900 Facsimile: (415) 986-8054 Lmoroney@grsm.com Nnayebi@grsm.com Attorneys for Defendant EL CAMINO HOSPITAL System Sys Electronically Filed by Superior Court of CA, County of Santa Clara, on 9/3/2021 10:37 AM Reviewed By: System System Case #1 8CV334546 Envelope: 7200632 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SANTA CLARA RUTH SANKRATHI, Plaintiff, VS. EL CAMINO HOSPITAL; and DOES 1-20, inclusive Defendants. vvvvvvvvvv CASE NO. 18CV334546 NOTICE OF ENTRY OF ORDER RE: MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION PLEASE TAKE NOTICE that 0n August 20, 2021, an Order on the above-captioned matter was entered by the Court in connection With Defendant E1 Camino Hospital’s Motion for Summary Judgment, Or in the Alternative, Summary Adjudication. A copy 0f the Order is attached hereto as Exhibit A. Dated: September 3, 2021 By: GORDON REES SCULLY MANSUKHANI, LLP LINAD M. MORNEY NIMA NAYEBI Attorneys for Defendant EL CAMINO HOSPITAL tem EXHIBIT A 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA 0s0 c$0 RUTH SANKRANTHI, Plaintiff, vs. Case No. 18-CV-334546 ORDER RE: MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION EL CAMINO HOSPITAL, Defendant. The motion for summary judgment, or in the alternative, summary adjudication to the complaint of plaintiff Ruth Sankranthi (“Plaintiff’) by defendant El Camino Hospital (“El Camino”) came on for hearing before the Honorable Drew Takaichi on August 19, 2021, at 9:00 a.m. in Department 2.* 1 The matter having been submitted, the court orders as follows: Factual and Procedural Background This is an employment action for discrimination and retaliation involving Plaintiff and defendant El Camino. 1 The court notes the caption on the case identifies plaintiff as “Ruth Sankrathi.” But, the opposition papers spell her name as “Ruth Sankranthi.” Therefore, the court adopts the latter spelling of Plaintiff s name for purposes of this order. 1 Case No. 18-CV-334546 Order Re: Motion for Summary Judgment, or in the Alternative, Summary Adjudication 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff was employed as a clinical documentation specialist by El Camino from December 5, 2016 through March 30, 2018. (Complaint at ^ 5.) During Plaintiffs employment, she complained about inappropriate and offensive comments her supervisor, Jessica Hatala (“Hatala”), made to and about her, including offensive comments about her appearance and clothing. (Complaint at f 8.) Thereafter, Hatala began to overly scrutinize Plaintiffs performance, including criticizing and disciplining her for petty errors or when she had done nothing wrong. (Id. at f 9.) Plaintiff alleges her performance was the same or better than her colleagues who were not subject to criticism and discipline for their performances. (Id. atf 10.) In March 2018, Plaintiff became disabled due to complications with her pregnancy, and was taken off work by her doctor. (Complaint at Tf 11.) Plaintiff immediately informed El Camino of her need for leave and submitted a doctor’s note, and then followed all steps she was asked to take by the HR Department. (Ibid.) El Camino’s managers, including Hatala, were aware of Plaintiff s need for leave due to Plaintiffs note and an email from El Camino’s disability insurance carrier, informing them of Plaintiff s leave. (Ibid.) Almost immediately after Plaintiff went on leave due to her pregnancy complications, El Camino fired her. (Complaint at 12.) Plaintiff filed a timely charge of discrimination with the Department of Fair Employment and Housing and received a right to sue within a year of filing her complaint. (Complaint at f 7.) On September 7, 2018, Plaintiff filed a complaint against El Camino alleging causes of action for: (1) discrimination; (2) violation of Pregnancy Disability Leave (“PDL”); (3) failure to accommodate; (4) disability discrimination; (5) retaliation; (6) failure to prevent discrimination; (7) interference with Family Medical Leave Act (“FMLA”) rights; and (8) retaliation for exercising rights to California Family Rights Act (“CFRA”) Leave. On November 8, 2018, El Camino filed its answer to the complaint alleging a general denial and various affirmative defenses. 2 Case No. 18-CV-334546 Order Re: Motion for Summary Judgment, or in the Alternative, Summary Adjudication 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Motion for Summary Judgment, or in the Alternative. Summary Adjudication Currently before the court is a motion for summary judgment, or in the alternative, summary adjudication to the complaint by defendant El Camino. El Camino filed a request for judicial notice in conjunction with the motion. Plaintiff filed written opposition. Both sides filed evidentiary objections. Defendant El Camino filed reply papers. A further case management conference is set for December 7, 2021. Untimely Opposition In reply, defendant El Camino argues Plaintiff did not file and serve a timely opposition in compliance with the Code of Civil Procedure. “An opposition to the motion shall be served and filed not less than 14 days preceding the noticed or continued date of hearing, unless the court for good cause orders otherwise.” (Code Civ. Proc., § 437c, subd. (b)(2).) The hearing on this motion for summary judgment, or in the alternative summary adjudication, was originally set for August 3, 2021.2 3Plaintiff thus was required to file and serve opposition no later than July 20, 2021. Plaintiff filed and served opposition (via email) on July 21, 2021, one day beyond the statutory deadline. The opposition is therefore untimely. Nevertheless, defendant El Camino does not identify any prejudice upon receipt of the opposition. In fact, El Camino filed and served reply papers with substantive arguments addressing the opposition. As a consequence, the court will overlook this procedural defect and consider the merits of the opposition. Separate Statement of Additional Facts In reply, defendant El Camino urges the court to disregard Plaintiffs Separate Statement of Additional Facts as most of these material facts are not referenced in the opposition. (See Teselle v. McLoughlin (2009) 173 Cal.App.4th 156, 171 [It is within the court’s discretion to refuse to consider evidence not referenced in the opposition papers].) The court however will consider all evidence set forth in the papers except that to which objections have been made and sustained. (See Code Civ. Proc., § 437c, subd. (c).) This involves a review of Plaintiff s 2 The court, on its own motion, continued the matter to August 19, 2021. 3 Case No. 18-CV-334546 Order Re: Motion for Summary Judgment, or in the Alternative, Summary Adjudication 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 opposition papers, including the Separate Statement of Additional Facts, to determine if there is any triable issue of fact to defeat the motion. Plaintiff’s Evidentiary Objections In opposition, Plaintiff objects to the Hatala Declaration and Exhibits C through E attached to it because the declaration is unsigned. A declaration that fails to comply with the requirements of Code of Civil Procedure section 2015.5 cannot be used as an evidentiary document to support or oppose a summary judgment motion. (See ViaView, Inc. v. Retzlaff (2016) 1 Cal.App.5th 198, 217 [unsigned declaration as required by section 2015.5 has no evidentiary value]; Kulshrestha v. First Union Commercial Corp. (2004) 33 Cal.4th 601, 601- 611 [declaration that does not comply with section 2015.5 is not sufficiently reliable to be admitted into evidence].) As a preliminary matter, evidentiary objections must be accompanied by a proposed order that complies with the requirements set forth in California Rules of Court, rule 3.1354(c). The rule requires an objecting party to file two separate documents, objections and a separate proposed order, both in one of the approved formats set forth in the rule. (See Cal. Rules of Court, rule 3.1354(b) and (c).) Here, Plaintiff fails to comply with the rule as she did not submit a proposed order as required by the rules of court. Accordingly, the court is not obligated to rule on the objections based on the above-described defect. (Vineyard Spring Estates v. Super. Ct. (2004) 120 Cal.App.4th 633, 642 [trial courts only have duty to rule on evidentiary objections presented in proper format].) Nevertheless, the court OVERRULES the objections as the Hatala Declaration submitted with the moving papers and filed with the court is signed by the declarant. During the hearing on the motion, Plaintiff also raised oral objections to the Hatala Declaration at paragraphs 6-23 on the grounds of lack of personal knowledge, hearsay, and lack of authentication. (See Reid v. Google, Inc. (2010) 50 Cal.4th 512, 531-532 [oral objections made at the hearing on a motion for summary judgment are permissible].) The Hatala declaration demonstrates it was made with personal knowledge and thus the court OVERRULES that objection. (See Hatala Decl. at 1.) In addition, the entirety of paragraphs 6-23 in the 4 Case No. 18-CV-334546 Order Re: Motion for Summary Judgment, or in the Alternative, Summary Adjudication 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Hatala Declaration are not subject to objections based on hearsay and lack of authentication and Plaintiff has not identified specific portions of those paragraphs which may be objectionable. As a consequence, the court OVERRULES those objections as well. El Camino’s Evidentiary Objections In reply, defendant El Camino filed evidentiary objections to Plaintiffs declaration. The court SUSTAINS Objection Nos. 4, 6, 7, 9-13, 15-17, 25, 26 and 29. The court OVERRULES Objection Nos. 5, 8, 14, 18-24, and 27-28. The court declines to address the remaining objections as they are not material to the outcome of the motion. (See Code Civ. Proc., § 437c, subd. (q) [in granting or denying a motion for summary judgment or summary adjudication, the court need rule only on those objections to evidence that it deems material to its disposition of the motion].) El Camino’s Request for Judicial Notice In support of the motion, defendant El Camino requests judicial notice of the complaint in this action. (See Request for Judicial Notice at Ex. A.) The court however must necessarily consider the complaint in addressing the motion for summary judgment as issues raised by the motion are framed by the pleadings. (See Riverside County Community Facilities Dist. v. Bainbridge 17 (1999) 77 Cal.App.4th 644, 653 [trial court’s first step in ruling upon a summary judgment motion is to identify the issues framed by the pleadings]; see also Knapp v. Doherty (2004) 123 Cal.App.4th 76, 84 [The pleadings determine the issues to be addressed by a summary judgment motion and the declarations filed in connection with such motion must be directed to the issues raised by the pleadings.].) The court therefore declines to take judicial notice of the complaint. (See Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, 748, fn. 6 [a court need not take judicial notice of a matter unless it “is necessary, helpful, or relevant”].) Accordingly, the request for judicial notice is DENIED. Legal Standard Any party may move for summary judgment. (Code of Civ. Proc., § 437c, subd. (a); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 {Aguilar).) The motion “shall be 5 Case No. 18-CV-334546 Order Re: Motion for Summary Judgment, or in the Alternative, Summary Adjudication 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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 a judgment as a matter of law.” (Code of Civ. Proc., § 437c, subd. (c); Aguilar, supra, at p. 843.) The object of the summary judgment procedure is “to cut through the parties’ pleadings” to determine whether trial is necessary to resolve the dispute. (Aguilar, supra, atp. 843.) The “party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact...” (Aguilar, supra, 25 Cal.4th at p. 850; see Evid. Code, § 110.) “A prima facie showing is one that is sufficient to support the position of the party in question.” (Aguilar, supra, at p. 851.) If the moving party makes the necessary initial showing, the burden of production shifts to the opposing party to make a prima facie showing of the existence of a triable issue of material fact. (Code of Civ. Proc., § 437c, subd. (p)(2); see Aguilar, supra, 25 Cal.4th at p. 850.) A triable issue of material fact exists “if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar, supra, at p. 850, fn. omitted.) If the party opposing summary judgment presents evidence demonstrating the existence of a disputed material fact, the motion must be denied. (Id. at p. 856.) Throughout the process, the trial court “must consider all of the evidence and all of the inferences drawn therefrom.” (Aguilar, supra, 25 Cal.4th at p. 856.) The moving party’s evidence is strictly construed, while the opponent’s is liberally construed. (Id. at p. 843.) Similarly, “[a] party may seek summary adjudication on whether a cause of action, affirmative defense, or punitive damages claim has merit or whether a defendant owed a duty to a plaintiff. A motion for summary adjudication.. .shall proceed in all procedural respects as a motion for summary judgment.” (California Bank & Trust v. Lawlor (2013) 222 Cal.App.4th 625, 630, internal citations and quotation marks omitted.) First Cause of Action: Discrimination In reviewing motions for summary judgment/adjudication in employment discrimination cases, California courts employ the burden-shifting formula first articulated by the U. S. 6 Case No. 18-CV-334546 Order Re: Motion for Summary Judgment, or in the Alternative, Summary Adjudication 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Supreme Court in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 {McDonnell Douglas). (See King v. United Parcel Service (2007) 152 Cal.App.4th 426,433, fii.2; see also Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1004 {Scotch).) Under McDonnell Douglas, on a motion for summary judgment brought against such a cause of action the plaintiff bears the burden of establishing a prima facie case of discrimination, and the burden then shifts to the employer to offer a legitimate, nondiscriminatory reason for the adverse employment action. {Mixon v. Fair Employment and Housing Commission (1992) 192 Cal.App.3d 1306, 1318.) “ ‘A defendant employer’s motion for summary judgment slightly modifies the order of these [.McDonnell Douglas] showings.’ ” {Scotch, supra, 173 Cal.App.4th at p. 1005, quoting Kelly v. Stamps.com, Inc. (2005) 135 Cal. App. 4th 1088, 1097 {Kelly)) To prevail on its motion, the defendant employer is “required to show either that (1) plaintiff could not establish one of the [prima facie] elements of the FEHA claim, or (2) there was a legitimate, nondiscriminatory reason for its decision to terminate plaintiffs employment.” {Avila v. Continental Airlines, Inc. (2008) 165 Cal.App.4th 1237, 1247 {Avila), citing Kelly, supra, 135 Cal. App. 4th at pp. 1097-1098.) Plaintiff alleges she was discriminated against based on her gender and race/ethnicity/national origin (Indian). (Complaint at f 14.) She alleges the discrimination took many forms, including being subjected to different terms and conditions of employment and being terminated. (Ibid.) Plaintiff thereafter alleges more specifically that her termination was motivated by her gender and race/ethnicity/national origin in violation of Government Code, section 12940, subdivision (a) et seq. (Id. at f 15.) On summary judgment, defendant El Camino argues its decision to terminate Plaintiff was based on a legitimate non-discriminatory reason. In the alternative, defendant El Camino contends Plaintiff cannot establish a prima facie case for discrimination. Legitimate. Nondiscriminatory Reason “In an employment discrimination case, an employer may move for summary judgment against a discrimination cause of action with evidence of a legitimate, nondiscriminatory reason 7 Case No. 18-CV-334546 Order Re: Motion for Summary Judgment, or in the Alternative, Summary Adjudication 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 for the adverse employment action. [Citation.] A legitimate, nondiscriminatory reason is one that is unrelated to prohibited bias and that, if true, would preclude a finding of discrimination. [Citation.] The employer’s evidence must be sufficient to allow the trier of fact to conclude that it is more likely than not that one or more legitimate, nondiscriminatory reasons were the sole basis for the adverse employment action.” (Featherstone v. Southern California Permanente Medical Group (2017) 10 Cal.App.5th 1150, 1158 (Featherstone).) In support, defendant El Camino submits evidence of Plaintiff s unsatisfactory job performance. (See El Camino’s Separate Statement of Undisputed Facts at Nos. 5, 6, 7,13.) In addition to Plaintiff s job performance, Hatala, her supervisor, had concerns about Plaintiffs inappropriate attire and disrespectful and distracting behavior at work. (Id. at Nos. 5, 10, 12, 13, 15.) Following several meetings with Plaintiff, Hatala, in consultation with HR, issued a Documented Verbal Counseling for Inappropriate Conduct to Plaintiff on September 7, 2017 warning her that she needed to improve her behavior or face harsher disciplinary action, including termination. (Id. at No. 15.) On the same day, Hatala also supplied Plaintiff with a detailed performance improvement plan (“PIP”) to support her success in providing compliant and clinically appropriate queries, communicating with others in a collaborative, professional, and respectful manner, and completing daily work as assigned. (Id. at No. 16.) The PIP was in effect for 60 days, during which time Hatala met with Plaintiff on a weekly basis to address areas of opportunity for improvement and to track her progress toward completing the PIP goals. (Ibid.) Despite the PIP, defendant El Camino contends Plaintiff continued to have performance issues that persisted through November 2017. (Hatala Deck at f 16.) On November 6, 2017, Hatala extended Plaintiffs PIP for an additional 30 days and issued a written warning to Plaintiff for her unsatisfactory job performance. (See El Camino’s Separate Statement of Undisputed Facts at No. 17.) During this extended PIP period, Hatala continued to have one-on-one coaching meetings with Plaintiff approximately once a week to support her in meeting performance expectations. (Ibid.) 8 Case No. 18-CV-334546 Order Re: Motion for Summary Judgment, or in the Alternative, Summary Adjudication 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Even though Plaintiff was able to briefly improve and meet the CDI Specialist’s role’s minimum requirements, her performance soon after began to decline. (Hatala Decl. at ^ 17.) Given Plaintiffs continuing failure to meet performance expectations and the extensive poor feedback that had been provided to her, Hatala consulted with HR on March 27, 2018 and decided that a further PIP would not be helpful and that it was appropriate to terminate Plaintiffs employment. (Id. at No. 19; Hatala Decl. at 19.) All of the individuals who participated in the decision to terminate Plaintiffs employment were female. (Ibid.) By presenting such evidence, defendant El Camino, as the employer, shifts the burden to Plaintiff to present evidence that El Camino’s decision was motivated at least in part by prohibited discrimination. {Featherstone, supra, 10 Cal.App.5th at pp. 1158-1159.) “The plaintiffs evidence must be sufficient to support a reasonable inference that discrimination was a substantial motivating factor in the decision.” {Id. atp. 1159.) “The stronger the employer’s showing of a legitimate, nondiscriminatory reason, the stronger the plaintiffs evidence must be in order to create a reasonable inference of a discriminatory motive.” {Ibid.) “Although an employee’s evidence submitted in opposition to an employer’s motion for summary judgment is construed liberally, it ‘remains subject to careful scrutiny.’ [Citation.] The employee’s ‘subjective beliefs in an employment discrimination case do not create a genuine issue of fact; nor do uncorroborated and self-serving declarations.’ [Citation.] The employee’s evidence must relate to the motivation of the decision makers and prove, by nonspeculative evidence, ‘an actual causal link between prohibited motivation and termination.’ [Citation.]” {Featherstone, supra, 10 Cal.App.5th atp. 1159.) “To show that an employer’s reason for termination is pretextual, an employee cannot simply show that the employer’s decision was wrong or mistaken, since the factual dispute at issue is whether discriminatory animus motivated the employer, not whether the employer is wise, shrewd, prudent, or competent. To meet his or her burden, the employee must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence, and hence infer that the employer did not act for the asserted 9 Case No. 18-CV-334546 Order Re: Motion for Summary Judgment, or in the Alternative, Summary Adjudication 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 non-discriminatory reasons. If nondiscriminatory, the employer’s true reasons need not necessarily have been wise or correct. While the objective soundness of an employer’s proffered reasons supports their credibility, the ultimate issue is simply whether the employer acted with a motive to discriminate illegally. Thus, legitimate reasons in this context are reasons that are facially unrelated to prohibited bias, and which, if true, would thus preclude a finding of discrimination.” (Featherstone, supra, 10 Cal.App.5th at pp. 1159-1160, internal citations and quotation marks omitted.) In opposition, Plaintiff first argues there is very little admissible evidence to support the argument as the Hatala Declaration is unsigned. (See Plaintiffs Disputed Facts at Nos. 5-7, 9- 11, 13-20, 27; Plaintiffs Evidentiary Objections.) The objections to the Hatala Declaration however are overruled for reasons stated above. Beyond that, the memorandum of points and authorities in support of the opposition offers very little, if any argument that directly addresses the issue of pretext. Finally, Plaintiff offers evidence showing that Hatala, at various times, provided Plaintiff with positive feedback regarding her work performance. (See Plaintiffs Additional Facts Nos. 24-28.) By this evidence, Plaintiff maybe attempting to show an inconsistency in El Camino’s decision to terminate her employment to support an argument for pretext. Such an attempt however is not sufficient as El Camino concedes (1) Plaintiff received both positive and negative feedback and (2) there was a brief period of time when Plaintiff s job performance improved before it declined once again resulting in termination. (Hatala Decl. at 15, 17.) Therefore, based on the evidence submitted in opposition, the court finds Plaintiff has not carried her burden in establishing pretext. Prima Facie Case “The specific elements of a prima facie case may vary depending on the particular facts.” (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 355.) Generally, the plaintiff must provide evidence that (1) he or she was a member of a protected class, (2) he or she was qualified for the position he or she sought or was performing competently in the position he or she held, (3) he or 10 Case No. 18-CV-334546 Order Re: Motion for Summary Judgment, or in the Alternative, Summary Adjudication 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 she suffered an adverse employment action, such as termination, demotion, or denial of an available job and (4) some other circumstance suggests discriminatory motive. {Ibid.) In the alternative, defendant El Camino argues Plaintiff cannot establish a prima facie case for discrimination. In doing so, El Camino concedes Plaintiff is a member of a protected class and suffered an adverse employment action. Specifically, with respect to the adverse employment action, defendant El Camino concedes that Plaintiff was subjected to different terms and conditions of employment as well as termination. (See Complaint at f 14; see also Van v. Target Corp. (2007) 155 Cal.App.4th 1375, 1387 [“[A] summary judgment motion is directed to the issues framed by the pleadings.”].) In challenging the claim for discrimination, defendant El Camino argues Plaintiff does not have evidence to satisfy the remaining two elements of the prima facie case. As stated above, defendant El Camino contends Plaintiff was not performing competently in her position. (See El Camino’s Separate Statement of Undisputed Facts at Nos. 5, 6, 7, 13.) Even if Plaintiff was performing well in her job, El Camino asserts there is no evidence of discriminatory animus to support discrimination. Any such evidence consisting here of Hatala telling Plaintiff that she can’t “nod her head” and that Plaintiff felt discriminated against because she wore dresses rather than pants. (Id. at No. 32.) This evidence however is not enough to establish discriminatory animus as a matter of law, particularly since it does not appear to be tied to any adverse employment action. (See Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 867 [a “stray” discriminatory remark that a court determines is unconnected to the adverse employment action is insufficient evidence of a discriminatory motive, as a matter of law, and may be wholly disregarded by the court]; Horn v. Cushman & Wakefield Western (1999) 72 Cal.App.4th 798, 809 [a stray remark is entitled to virtually no weight in considering whether the firing was pretextual or whether the decisionmaker harbored discriminatory animus]; see also Smith v. Firestone Tire and Rubber Co. (7th Cir. 1989) 875 F.2d 1325, 1330 [stray “remarks,.. .when unrelated to the decisional process, are insufficient to demonstrate that the employer relied on illegitimate criteria, even when such statements are made by the decision-maker in issue”].) 11 Case No. 18-CV-334546 Order Re: Motion for Summary Judgment, or in the Alternative, Summary Adjudication 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Consequently, the court finds Plaintiff cannot establish a prima facie case for discrimination. Second Cause of Action: Violation of PDL The Pregnancy Disability Leave Law, which is part of FEHA, requires employers to provide leave to an employee who is “disabled by pregnancy, childbirth, or a related medical condition...” (Gov. Code, § 12945, subd. (a)(1).) The statute also requires employers to provide a reasonable accommodation “for a condition related to pregnancy, childbirth, or a related medical condition, if the employee so requests, with the advice of the employee’s health care provider.” (Gov. Code, § 12945, subd. (a)(3)(A).) Employers may not interfere with an employee’s attempt to seek leave or reasonable accommodation provided under the statute. (Gov. Code, § 12945, subd. (a)(4).) Plaintiff alleges she was pregnant and disabled and thus a member of a protected class pursuant to Government Code section 12900 et seq. (Complaint at f 21.) Plaintiff claims defendant El Camino violated Pregnancy Disability Leave laws by terminating her after her PDL commenced and not returning her to either her prior position or a position comparable to it. (Id. at If 24.) Defendant El Camino submits evidence demonstrating that it did not terminate Plaintiffs employment because she requested leave related to her pregnancy. El Camino made the decision to terminate Plaintiffs employment on March 27, 2018 because of her declining job performance. (See El Camino’s Separate Statement of Undisputed Facts at No. 19.) On March 28, 2018, Plaintiff visited her obstetrician where she was provided with a doctor’s note so she could take leave from work. (Id. at No. 23.) On March 29, 2018, Plaintiff went to El Camino to drop off her doctor’s note at the HR Department. (Id. at No. 24.) To Hatala’s knowledge, Plaintiff had not informed anyone at El Camino that she was pregnant, and no one in management or HR knew she was pregnant until after she submitted her leave request on March 29, 2018. (Id. at Nos. 27, 30; Hatala Deck at 22.) Nor was Hatala aware of Plaintiff s pregnancy when El Camino finalized the decision to terminate her employment two days earlier on March 27, 2018. (Id. at No. 27; Hatala Deck at 22.) Finally, Plaintiff testified that no one at 12 Case No. 18-CV-334546 Order Re: Motion for Summary Judgment, or in the Alternative, Summary Adjudication 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 El Camino told her she could not go on leave after she submitted her doctor’s note and requested disability leave. (Id. at No. 25.) Based on this evidence, the second cause of action is not viable as defendant El Camino did not have knowledge of Plaintiff s pregnancy until after making its decision to terminate her employment. Even though Plaintiff disputes El Camino’s evidence, she does not offer any evidence in opposition to raise a triable issue of fact to defeat summary judgment or summary adjudication. Third Cause of Action: Failure to Accommodate FEHA makes it unlawful for an employer “to fail to make reasonable accommodation for the known physical.. .disability of an applicant or employee” except where the employer demonstrates that an accommodation would “produce undue hardship.. .to its operation.” (Gov. Code, § 12940, subd. (m).) A “reasonable accommodation” is any “modification or adjustment to the workplace that enables the employee to perform the essential functions of the job held or desired.” {Scotch, supra, 173 Cal.App.4th at p. 1010.) “The elements of a failure to accommodate claim are (1) the plaintiff has a disability under the FEHA, (2) the plaintiff is qualified to perform the essential functions of the position, and (3) the employer failed to reasonably accommodate the plaintiffs disability.” {Scotch, supra, 173 Cal.App.4th at pp. 1009-1010.) Reasonable accommodations may include “[j]ob restricting, part-time or modified work schedules, reassignment to a vacant position.. .and other similar accommodations for individuals with disabilities.” (Gov. Code, § 12926, subd. (p).) “FEHA does not obligate an employer to choose the best accommodation or the specific accommodation of a disabled employee or applicant seeks. It requires only that the accommodation chosen be ‘reasonable.’ [Citation.]” {Raine v. City of Burbank (2006) 135 Cal.App.4th 1215, 1222.) “Two principles underlie a cause of action for failure to provide a reasonable accommodation. First, the employee must request an accommodation. Second, the parties must engage in an interactive process regarding the requested accommodation and, if the process fails, responsibility for the failure rests with the party who failed to participate in good faith. While a 13 Case No. 18-CV-334546 Order Re: Motion for Summary Judgment, or in the Alternative, Summary Adjudication 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 claim of failure to accommodate is independent of a cause of action for failure to engage in an interactive dialogue, each necessarily implicates the other.” (Geflo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34, 54.) “Generally, the employee bears the burden of giving the employer notice of the disability. An employer, in other words, has no affirmative duty to investigate whether an employee’s illness might qualify as a disability. The employee can’t expect the employer to read his mind and know he secretly wanted a particular accommodation and sue the employer for not providing it. Nor is an employer ordinarily liable for failing to accommodate a disability of which it had no knowledge.” (Featherstone, supra, 10 Cal.App.5th at p. 1167, internal citations and quotation marks omitted.) “[A]n employer ‘knows an employee has a disability when the employee tells the employer about his condition, or when the employer otherwise becomes aware of the condition, such as through a third party or by observation. The employer need only know the underlying facts, not the legal significance of those facts.’ ” (Faust v. California Portland Cement Co. (2007) 150 Cal.App.4th 864, 887 (Faust), citing Schmidt v. Safeway Inc. (D. Or. 1994) 864 F. Supp. 991, 997.) “While knowledge of the disability can be inferred from the circumstances, knowledge will only be imputed to the employer when the fact of disability is the only reasonable interpretation of the known facts. ‘Vague or conclusory statements revealing an unspecified incapacity are not sufficient to put an employer on notice of its obligations under the [FEHA].’ ” (Featherstone, supra, 10 Cal.App.5th at p. 1167; Brundage v. Hahn (1997) 57 Cal.App.4th 228, 237 (Brundage).) Moreover, “[ejvidence that a decision maker learned of a plaintiffs disability after deciding to take adverse employment action is not probative of whether the decision maker was aware of the plaintiffs disability when he or she made the decision.” (Avila, supra, 165 Cal.App.4th atp. 1251; see Brundage, supra, 57 Cal.App.4th atpp. 236-237 [decisionmaker must be aware of disability “when the adverse employment decision was made”].) “Put simply, unless there is some evidence an employer knows an employee is suffering from a disability, it is impossible for an employee to claim he or she was discharged because of it 14 Case No. 18-CV-334546 Order Re: Motion for Summary Judgment, or in the Alternative, Summary Adjudication 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 or that an employer refused to accommodate the disability.” {Pensinger v. Bowsmith, Inc. (1998) 60 Cal.App.4th 709, 722, disapproved on other grounds in Colmenares v. Braemar Country Club, Inc. (2003) 29 Cal.4th 1019,1031, fn. 6.) Plaintiff alleges she had a disability and, by submitting a doctor’s note, requested a reasonable accommodation. (Complaint at 32-33.) By terminating Plaintiff during the period when she was out on leave, defendant El Camino failed to accommodate Plaintiff. (Id. at ^ 34.) Like the second cause of action, the third cause of action fails as the decision by defendant El Camino to terminate Plaintiffs employment came before it had knowledge of her disability. (See El Camino’s Separate Statement of Undisputed Facts at Nos. 19-31.) As stated above, defendant El Camino decided to terminate Plaintiffs employment on March 27, 2018 because of her declining job performance. (Id. at No. 19; Hatala Decl. at 19, 22.) Yet Plaintiff did not get a doctor’s note from her obstetrician requesting that she be placed on leave until March 28, 2018 and did not submit the note to the HR Department until March 29, 2018. (Id. at Nos. 22-24.) Moreover, Plaintiff testified she learned for the first time she was being placed on leave during the doctor visit on March 28,2018. (Id. at No. 23.) While Plaintiff disputes El Camino’s evidence, she does not offer any evidence in opposition to raise a triable issue of fact to defeat the motion. As Plaintiff never requested an accommodation while employed by defendant El Camino, the third cause of action fails. Fourth Cause of Action: Disability Discrimination “A prima facie case of disability discrimination under FEHA requires a showing that (1) the plaintiff suffered from a disability, (2) the plaintiff was otherwise qualified to do his or her job, with or without reasonable accommodation, and (3) the plaintiff was subjected to adverse employment action because of the disability.” (Castro-Ramirez v. Dependable Highway Express, Inc. (2016) 2 Cal.App.5th 1028, 1037.) “Respecting the third element, the disability must be a substantial factor motivating the employer’s adverse employment action.” {Ibid.) Plaintiff alleges she had a disability and was able to perform the essential functions of her job with a reasonable accommodation. (Complaint at ]fl[ 40-41.) Plaintiff contends her disability 15 Case No. 18-CV-334546 Order Re: Motion for Summary Judgment, or in the Alternative, Summary Adjudication 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 was a substantial factor in defendant El Camino’s decision to terminate her employment. (Id. at 1142.) Here, Plaintiff cannot establish a prima facie case for disability discrimination because, as stated above, defendant El Camino terminated Plaintiff for her declining job performance and did so before learning about Plaintiffs pregnancy. (See El Camino’s Separate Statement of Undisputed Facts at Nos. 19-31.) Thus, Plaintiffs disability was not a motivating factor in regards to her termination. And, even if Plaintiff could establish a prima facie case, defendant El Camino has provided a legitimate nondiscriminatory reason for termination and Plaintiff has not submitted evidence of pretext for reasons stated above. Fifth Cause of Action: Retaliation It is unlawful for an employer “to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under [the FEHA] or because the person has filed a complaint, testified, or assisted in any proceeding under [the FEHA].” (Gov. Code, § 12940, subd. (h).) “[T]he elements of such a claim are substantially the same as those for disparate treatment except that instead of having to show that the action was motivated by animus toward the plaintiff as a member of the protected class, the plaintiff must show that the motive was retaliatory animus.” (McCaskeyv. California State Automobile Assn. (2010) 189 Cal.App.4th 947, 987-988.) “Like FEHA discrimination claims, FEHA retaliation claims are subject to the McDonnell Douglas burden-shifting framework.” (Cornell v. Berkeley Tennis Club (2017) 18 Cal.App.5th 908, 942.) “[T]o establish a prima facie case of retaliation under the FEHA, a plaintiff must show (1) he or she engaged in a ‘protected activity,’ (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer’s action.” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042 {Yanowitz).) At trial, if the plaintiff establishes a prima facie case, the burden shifts to the employer to identify “a legitimate, nonretaliatory reason for the adverse employment action.” {Yanowitz, supra, 36 Cal.4th at p. 1042.) The burden then “shifts back to the employee to prove intentional 16 Case No. 18-CV-334546 Order Re: Motion for Summary Judgment, or in the Alternative, Summary Adjudication 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 retaliation.” {Ibid.) As stated above, a motion for summary judgment by the employer modifies the order of these showings. Plaintiff alleges she engaged in protected conduct, including but not limited to: complaining about discrimination, requesting protected leave time, requesting accommodation for her pregnancy-related disability, and otherwise exercising her rights under FEHA. (Complaint at f48.) Plaintiffs protected conduct constituted substantial factors in defendant El Camino’s decisions to discipline and terminate her. (Id. at 49.) To the extent the retaliation claim is based on conduct related to Plaintiffs request for leave or accommodation and her pregnancy-related disability, the cause of action fails for reasons stated above. Specifically, that defendant El Camino was not aware of any request for leave, accommodation, or disability at the time it disciplined and ultimately terminated Plaintiffs employment. (See El Camino’s Separate Statement of Undisputed Facts at Nos. 19-24.) To the extent the retaliation claim is based on Plaintiffs complaints of discrimination, defendant El Camino has presented evidence demonstrating that it disciplined Plaintiff and terminated her employment based on her declining job performance as stated above. (Id. at Fact No. 19.) Plaintiff has not submitted evidence of pretext for reasons stated above and thus the retaliation claim also fails. Sixth Cause of Action: Failure to Prevent Discrimination FEHA makes it unlawful for an employer “to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring.” (Govt. Code, § 12940, subd. (k).) Claims for failure to prevent unlawful harassment or discrimination, however, fail as a matter of law when no underlying discrimination or harassment occurred. {Scotch, supra, 173 Cal.App.4th at p. 1021; Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th 280, 289.) Here, the operative complaint does not allege an underlying cause of action for harassment. Therefore, there can be no claim for failure to prevent harassment. Also, because Plaintiff failed to establish any unlawful discrimination by defendant El Camino, her claim for failure to prevent discrimination similarly fails. 17 Case No. 18-CV-334546 Order Re: Motion for Summary Judgment, or in the Alternative, Summary Adjudication 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Seventh Cause of Action: Interference with FMLA Rights The FMLA provides job security to employees who must be absent from work because of their own illnesses, to care for family members who are ill, or to care for new babies. (Bachelder v. Am. W. Airlines, Inc. (9th Cir. 2001) 259 F.3d 1112, 1119 {Bachelder).) “Congress recognized that, in an age when all the adults in many families are in the work force, employers’ leave policies often do not permit employees reasonably to balance their family obligations and their work life. The result, Congress determined, is ‘a heavy burden on families, employees, employers and the broader society.’ [Citation.] As for employees’ own serious health conditions, Congress found that employees’ lack of job security during serious illnesses that required them to miss work is particularly devastating to single-parent families and to families which need two incomes to make ends meet. [Citation.] As Congress concluded, ‘it is unfair for an employee to be terminated when he or she is struck with a serious illness and is not capable of working.’ [Citation.] In response to these problems, the Act entitles covered employees to up to twelve weeks of leave each year for their own serious illnesses or to care for family members, and guarantees them reinstatement after exercising their leave rights.” {Ibid.) Plaintiff is pursuing a cause of action for interference with her FMLA rights. There are five elements for a prima facie case of interference with such rights. The employee must establish: (1) he/she was eligible for the FMLA’s protections, (2) his/her employer was covered by the FMLA, (3) he/she was entitled to leave under the FMLA, (4) he/she provided sufficient notice of his/her intent to take leave, and (5) his/her employer denied him/her FMLA benefits to which he/she was entitled. {White v. County of Los Angeles (2014) 225 Cal.App.4th 690, 701.) An interference claim under the FMLA does not involve the burden-shifting analysis articulated by the United States Supreme Court in McDonnell Douglas. {Faust, supra, 150 Cal.App.4th at p. 879.) As stated in Bachelder, “there is no room for a McDonnell Douglas type of pretext analysis when evaluating an ‘interference’ claim under this statute.” {Bachelder, supra, 259 F.3d at p. 1131.) “A violation of the FMLA ‘simply requires that the employer deny the employee’s entitlement to FMLA.’ [Citation.]” {Faust, supra, 150 Cal.App.4th atp. 879.) 18 Case No. 18-CV-334546 Order Re: Motion for Summary Judgment, or in the Alternative, Summary Adjudication 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Here, Plaintiff alleges (1) she was eligible for FMLA at the time she requested it; (2) defendant El Camino was subject to the requirements of FMLA and had a legal duty not to interfere with Plaintiffs rights under the act; and (3) defendant El Camino violated the FMLA by terminating Plaintiff. (Complaint at 59-61.) The seventh cause of action fails for reasons stated above in connection with the second cause of action. This is because defendant El Camino made the decision to terminate Plaintiffs employment before receiving notice from Plaintiff that she requested leave from work. (See El Camino’s Separate Statement of Undisputed Facts at Nos. 19-31.) In addition, defendant El Camino submitted evidence demonstrating that it terminated Plaintiffs employment based on her declining job performance as stated above. (Id. at Fact No. 19.) Eighth Cause of Action: Retaliation for Exercising Rights to CFRA Leave (Govt. Code, § 12945.2) “CFRA ‘is intended to give employees an opportunity to take leave from work for certain personal or family medical reasons without jeopardizing job security.’ ” (Bareno v. San Diego Community College Dist. (2017) 7 Cal.App.5th 546, 558-559 (Bareno).) “The CFRA entitles eligible employees to take up to 12 weeks of unpaid medical leave during a 12-month period for certain personal or family medical conditions, including care for their children, parents, or spouses or to recover from their own serious health condition. [Citations.] CFRA’s regulations provide that, for an employee to be entitled to a medical leave for her own serious health condition, the condition must cause her to be unable to work at all or unable to perform one or more of the essential functions of her position. [Citation.] An employee who takes CFRA leave is guaranteed that taking leave will not result in a loss of job security or in other adverse employment actions. [Citations.]” (Neisendorf v. Levi Strauss & Co. (2006) 143 Cal.App.4th 509, 516-517, fn. omitted.) A violation under the CFRA falls into two types of claims: (1) “interference” claims in which an employee alleges that an employer denied or interfered with his/her substantive rights to protected medical leave, and (2) “retaliation” claims in which an employee alleges that he/she 19 Case No. 18-CV-334546 Order Re: Motion for Summary Judgment, or in the Alternative, Summary Adjudication 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 suffered an adverse employment action for exercising his/her right to CFRA leave. (Bareno, supra, 7 Cal.App.5th at pp. 558-559.) Plaintiff is alleging a cause of action for retaliation for exercising her rights to CFRA Leave. A retaliation claim in violation of the CFRA consists of the following: (1) the defendant was a covered employer; (2) the plaintiff was eligible for CFRA leave; (3) the plaintiff exercised his or her right to take a qualifying leave; and (4) the plaintiff suffered an adverse employment action because he or she exercised the right to take CFRA leave.” (Choochagi v. Barracuda Networks, Inc. (2020) 60 Cal.App.5th 444, 457 (Choochagi).) Unlike interference claims, CFRA retaliation claims are subject to the McDonnelL Douglas burden-shifting analysis. (Bareno, supra, 1 Cal.App.5th at p. 560; see Choochagi, supra, 60 Cal.App.5th at p. 458 [“While the McDonnell Douglas burden-shifting analysis does not apply to CFRA interference claims, it does apply to CFRA retaliation claims.”].) Here, Plaintiff alleges (1) she was eligible for CFRA at the time she requested for time off; (2) she exercised her rights to CFRA leave pursuant to her treating physician’s orders; and (3) she was terminated by defendant El Camino for exercising her right to take CFRA leave. (Complaint at 66-68.) The eighth cause of action fails for reasons stated above in connection with the second and seventh causes of action. This is because defendant El Camino made the decision to terminate Plaintiffs employment before receiving notice from Plaintiff that she requested leave from work. (See El Camino’s Separate Statement of Undisputed Facts at Nos. 19-31.) Also, defendant El Camino submitted evidence demonstrating that it terminated Plaintiffs employment based on her declining job performance as stated above. (Id. at Fact No. 19.) Based on the foregoing, the motion for summary judgment to the complaint is GRANTED. 20 Case No. 18-CV-334546 Order Re: Motion for Summary Judgment, or in the Alternative, Summary Adjudication 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Disposition The motion for summary judgment to the complaint is GRANTED. Dated: ,'P o, 2- / Hon^IJrew Takaichi Judge of the Superior Court 21 Case No. 18-CV-334546 Order Re: Motion for Summary Judgment, or in the Alternative, Summary Adjudication SUPERIOR COURT OF CALIFO COUNTY OF SANTA CLA DOWNTOWN COURTHOUSE H 191 North First Street San Jose, California 95113 CIVIL DIVISION yC'fdt n r AUS 20 2021 [/ Court RE: Ruth Sankrathi vs El Camino Hospital Case Number: 18CV334546 PROOF OF SERVICE ORDER RE: MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION was delivered to the parties listed below the above entitled case as set forth in the sworn declaration below. If you, a party represented by you, or a witness to be called on behalf of that party need an accommodation under the American with Disabilities Act, please contact the Court Administrator’s office at (408) 882-2700, or use the Court’s TDD line (408) 882-2690 or the Voice/TDD California Relay Service (800) 735-2922. DECLARATION OF SERVICE BY MAIL: I declare that I served this notice by enclosing a true copy in a sealed envelope, addressed to each person whose name is shown below, and by depositing the envelope with postage fully prepaid, in the United States Mail at San Jose, CA on August 20, 2021. CLERK OF THE COURT, by Farris Bryant, Deputy. cc: Maureen Elizabeth McFadden LAW OFFICES OF MARUREEN E MCFADDEN 1320 Willow Pass Rd Suite 600 CONCORD CA 94520 Geneva A Collins 275 Battery Street Suite 2000 San Francisco CA 94111 CW-9027 REV 12/08/16 PROOF OF SERVICE SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA DOWNTOWN COURTHOUSE 191 North First Street San Jose, California 95113 CIVIL DIVISION Geneva A Collins 275 Battery Street Suite 2000 San Francisco CA 94111 RE: Ruth Sankrathi vs El Camino Hospital Case Number: 18CV334546 PROOF OF SERVICE ORDER RE: MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION was delivered to the parties listed below the above entitled case as set forth in the sworn declaration below. If you, a party represented by you, or a witness to be called on behalf of that party need an accommodation under the American with Disabilities Act, please contact the Court Administrator’s office at (408) 882-2700, or use the Court’s TDD line (408) 882-2690 or the Voice/TDD California Relay Service (800) 735-2922. DECLARATION OF SERVICE BY MAIL: I declare that I served this notice by enclosing a true copy in a sealed envelope, addressed to each person whose name is shown below, and by depositing the envelope with postage fully prepaid, in the United States Mail at San Jose, CA on August 20, 2021. CLERK OF THE COURT, by Farris Bryant, Deputy. cc: Maureen Elizabeth McFadden LAW OFFICES OF MARUREEN E MCFADDEN 1320 Willow Pass Rd Suite 600 CONCORD CA 94520 CW-9027 REV 12/08/16 PROOF OF SERVICE San Francisco, CA 94111 Gordon Rees Scully Mansukhani, LLP 275 Battery Street, Suite 2000 1170226/61067197v.1 \OOOQQ 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE I am a resident 0f the State of California, over the age of eighteen years, and not a party t0 the Within action. My business address is: Gordon Rees Scully Mansukhani, LLP 275 Battery Street, Suite 2000, San Francisco, CA 941 1 1. On the date set forth below, I served the within documents: NOTICE OF ENTRY OF ORDER RE: MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION Via E-Mail: by transmitting Via electronic mail the document(s) listed above to the email address(es) set forth below. D Via Facsimile: by transmitting Via facsimile the document(s) listed above to the fax number(s) set forth below. D Via Hand: by causing the document(s) listed above to be hand delivered t0 the person(s) at the address(es) set forth below. D Via Fed EX: by placing a true copy thereof enclosed in a sealed envelope, at a station designated for collection and processing 0f envelopes and packages for overnight delivery by FedEx as part of the ordinary business practices 0f Gordon Rees Scully Mansukhani, LLP described below, addressed as follows: Via U.S. Mail: by placing the document(s) listed above in a sealed envelope with postage thereon fully prepaid, in United States mail in the State of California at San Francisco, addressed as set forth below. Attornevs for Plaintiff: Maureen E. McFadden Tel: (925) 204-3907, Ext. 3907 Law Offices of Maureen E. McFadden Email: maureenemcfadden@gmail.com 1320 Willow Pass Rd., Suite 600 Concord, CA 94520 I am readily familiar with the firm’s practice 0f collection and processing correspondence for mailing. Under that practice it would be deposited With the U.S. Postal Service on that same day With postage thereon fully prepaid in the ordinary course of business. I am aware that 0n motion 0f the party served, service is presumed invalid if postal cancellation date 0r postage meter date is more than one day after the date of deposit for mailing in affidavit. I declare under penalty of perjury under the laws 0f the State 0f California that the above is true and correct. Executed 0n September 3, 2021 at San Francisco, California. Yehimi Olvera