Electronically FILED by Superior Court of California, County of Los Angeles on 03/26/2020 04:39 PM Sherri R. Carter, Executive Officer/Clerk of Court, by J . Lara,Deputy Clerk B A K E R & H O S T E T L E R LL P A T T O R N E Y S AT L A W LO S A N G E L E S AN nn Bk W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SABRINA L. SHADI, SBN 205405 CHRISTOPHER M. HABASHY, SBN 280725 MONIQUE G. MATAR, SBN 317145 BAKER & HOSTETLER LLP 11601 Wilshire Boulevard, Suite 1400 Los Angeles, CA 90025-0509 Telephone: ~~ 310.820.8800 Facsimile: 310.820.8859 Email: sshadi@bakerlaw.com chabashy @bakerlaw.com mmatar@bakerlaw.com Attorneys for Defendant PYRAMID LA MANAGEMENT, L.P. SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF LOS ANGELES KRISTINA AVRAMOVA, an individual, Plaintiff, Vv. RECANA SOLUTIONS, L.L.C., a Texas limited liability company; RECANA LLC, a Texas limited liability company; HAZENS INVESTMENT, LLC a California limited liability company dba SHERATON GATEWAY LOS ANGELES HOTEL; and DOES 1 through 20, Inclusive, Defendant. Case No.: 19STCV09126 [Assigned to Hon. Yolanda Orozco Dept. 31] DEFENDANT PYRAMID LA MANAGEMENT, L.P.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT, OR ALTERNATIVELY, SUMMARY ADJUDICATION Date: June 11, 2020 Time: 8:30 a.m. Dept.: 31 [Filed concurrently with Notice of Motion for Summary Judgement; Separate Statement of Undisputed Material Facts; Declarations of Christopher Habashy, Erika Barba, Romain Lescaon, Melanio Wood and Lorena Flores; Compendium of Non- California Authorities; and (Proposed) Order] [Reservation ID No. 630642538368] Date Action Filed: March 13, 2019 Trial Date: July 13, 2020 DEFENDANT PYRAMID LA MANAGEMENT, L.P."S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT, OR ALTERNATIVELY, SUMMARY ADJUDICATION - Case No. 19STCV09216 B A K E R & H O S T E T L E R LL P A T T O R N E Y S AT L A W LO S A N G E L E S ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF CONTENTS Page LL. INTRODUCTION ....ooiiiiiiiiieieete cece steers sees srae sabe ee enna e snes sere eie enna 1 II. STATEMENT OF FACTS ooo eevee este sree saree eens sree eee 1 II. ARGUMENT coos sate estes sree sabe sees tee snes sane enae en 3 A. Pyramid Is Entitled To Summary Judgment Because It Was Not Ms. Avramova’s EMPIOYET ........oouiiiiiiiiiiiiiicceceee cece eee 3 B. Even Assuming That Pyramid and Recana Were Joint Employers of Ms. Avramova At the Time of her Termination, Pyramid Cannot Be Held Vicariously Liable For Any Allegedly Wrongful Acts Taken By Recana.............. 5 C. Ms. Avramova’s Discrimination and Retaliation Causes of Action Fail................ 6 I. Ms. Avramova Cannot Establish a Prima Facie Case of Pregnancy Discrimination or Retaliation. ............ccocvevvierieiieeniinnieeiece cree 6 2. Pyramid has met its Burden to Demonstrate that Ms. Avramova’s Placement at the Sheraton ended for a Legitimate, Nondiscriminatory, Nonretaliatory REASON. ......cocuuieieiiiiiiiiriiecie cece eee eee 7 3. Ms. Avramova Cannot Establish That Pyramid’s Legitimate Reasons for its Actions Were Pretextual. .........ccocevvieiieiiieniinniecece cence 8 D. Ms. Avramova’s Derivative Causes of Action Fail. ..........cccccoveiiiiiiiiiinnnnnen 9 E. Ms. Avramova is Not Entitled to Punitive Damages. ...........cccovcueevviiennicennieennnen. 9 TW, SCONCTTSTONR oomosesmmsesemssassnmmsnssmsssmssmsmes sss ms sss s Es a aE esa 10 i DEFENDANT PYRAMID MANAGEMENT, L.P.”S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT, OR ALTERNATIVELY, SUMMARY ADJUDICATION - Case No. 19STCV09216 B A K E R & H O S T E T L E R LL P A T T O R N E Y S AT L A W LO S A N G E L E S ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES Page(s) Cases In re Angelia P. (1981) 28 Cal. 3A 908 .....oeeieeeieee eet teehee estes shee sabe e teeta este este a sees bee este sabe enneas 9 Aquino v. Super. Ct (1993) 21 Cal. APP. Ath AT «eee eee eee este eats eres t ee sate eabeenneas 9 Doe Iv. Wal-Mart Stores, Inc. STZ B30 OTT (OU CHE: 2D) 555 557.5 asi tsss 2s i s8si 7 5 eiis S5550 5 RAS555 SH555 5.55 4 Douglas v. Anderson (Oth Cir. 1981) 656 F.2d 528......ceiiiieiie eee ete sate eaters saa eabe anes 7 Guz v. Bechtel Nat'l Inc. (2000) 24 Cal. Ath 317 cece eee eee teeters ee eae eerste etbe sabe enr ee taens 3,6,7 Hanson v. Lucky Stores C199) 7d Cal. As UE, 21.5 sommes avs somone sss 0s ms ssa sans 9 Hersant v. Dep’t of Soc. Servs. (1997) 57 Cal. APP. 4th O07... eee sate eae eeee eee 3,6,8 Horn v. Cushman & Wakefield W., Inc. (1999) 72 Cal. APP. 4th TOE... eee ete sees t teste sabe e ieee b ae sate sabe enneas 3 Jarman v. HCR ManorCare, Inc. (App. 4 Dist. 2017) 215 Cal. Rptr. 3d 231, rehearing denied, review granted 219:Cal. Rpt. 3A 470; J96: PLB. SDB ism nswmsnsn swsswnsn mss aussie sos 0505555 505555558 58555549 5555550 S455555.58 55 9 Levy v. Regents of Univ. of California (1988) 199 Cal. APP. 3d 1334... cei sees saber e ete esbae sabe anaes 7 Megivern v. Glacier Hills Inc. (6th Cir. 2013) 519 Fed. APPX. 383. eect eee eee eebe eee ete e sate sebe anaes 8 Morgan v. Regents of University of Cal. COR) BB Cail. As 2 $2 coiasmsmonessonsos vss essa sei asses ous 0 us ams SE ARS 8 Mpyricks v. Lynwood Unified Sch. Dist. (1999) 74 Cal. APP. 4th 231 «eee eee sees b te estes estes sabe sabe enneas 3 Noe v. Superior Court (2015) 237 Cal. APP. Ath 316 eens eee teste sate eerste estas sate sete eaeas 5 DEFENDANT PYRAMID MANAGEMENT, L.P.”S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT, OR ALTERNATIVELY, SUMMARY ADJUDICATION - Case No. 19STCV09216 B A K E R & H O S T E T L E R LL P A T T O R N E Y S AT L A W LO S A N G E L E S ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Saelzler v. Advanced Grp. (2001) 25 Cal: AU TOD: csi m5 50.5505 550555550 5505575575508 455555 5558 S555 RAS EFA 5 BARA HBS 85.59 3 Scotch v. Art Institute of California (2009) 173 Cal. APP. Ath O80 evecare eee eaters b essa sabe ennes 8 Serrano v. Aerotek, Inc. (2018) 21 Cal. APP.ST 773 coerce estes atest eee bt sabe e eee b ae sbaesebeanneas 5 Texas Dep't of Cmty. Affairs v. Burdine (1981) ASO) TET 2088 esos vanes SE A A 3 ER RB AM 7 Trujillo v. N. Cnty. Trans. Dist. (1998) 63 Cal. APP. 4th 280 «eee etree ete eben eres tee sate eee enees 9 Vernon v. State of California (2004) 116 Cal. APP. Ath 114 oon sete e estes sate eebe anaes 4 Weinbaum v. Goldfarb, Whitman & Cohen (1996) 46 Cal. APP. 4th 1310 ..eeiiiiiie cies eee ees sabes b ee sbee sabe anneas 3,4 White v. Ultramar, Inc. (1999) 21 Cal. Ath 563... eee eee eee estes sabe sabe eee estes sabe eebe ese e esas sabe anne 10 Yanowitz v. L’Oreal USA, Inc. (2008) 36 Cal: At VORE ,.com550.55.550050 mis nmssnsi sss ros sian 5545 55055555 255555558 5555 S755 55 SARS HIS 6,7 Statutes CAL CIV. CODE § F299: umsnanovmsn essa sumansnowmss acannon osc asim comes vas sass i 058s £5 0m 3 2525 60 Ro 855 Ga 9 CAL. CODE CIV. PROC. § 437C(P)(2) tvtteetttteeiieeeiieeeete es es attests sites sates s ie e sab es sabe ee sabe esses 3 iii DEFENDANT PYRAMID MANAGEMENT, L.P.”S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT, OR ALTERNATIVELY, SUMMARY ADJUDICATION - Case No. 19STCV09216 B A K E R & H O S T E T L E R LL P A T T O R N E Y S AT L A W LO S A N G E L E S ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I. INTRODUCTION Plaintiff Kristina Avramova’s (“Avramova”) claims against Pyramid LA Management (“Pyramid”) are entirely unfounded and misdirected. She alleges that Pyramid discriminated against her, retaliated against her, and wrongfully terminated her after she told Pyramid that she was pregnant. But Ms. Avramova was never employed by Pyramid, and Pyramid never terminated her employment. Rather, she was employed by a temporary staffing agency-Recana Solutions, LLC (“Recana”). Recana provided Pyramid with temporary workers for its hotels, including the Sheraton Gateway LAX (“Sheraton Gateway”). During her employment with Recana, Ms. Avramova was temporarily placed as a hostess at the Sheraton Gateway LAX. After her contract hours with Recana had been fulfilled, Ms. Avramova was invited to apply for an in- house position. However, Ms. Avramova informed Pyramid that she was not authorized to maintain employment in the United States, and she did not apply for the in-house position. Relying on her disclosure that she was not authorized to work in the United States, Pyramid stopped calling Ms. Avramova to provide services at the Sheraton Gateway LAX after March 19, 2017. Pyramid has no knowledge of Ms. Avramova’s employment status with Recana after this date. If she was terminated by Recana, Pyramid had no input or control over such decision. Given that each of Ms. Avramova’s claims rest on her allegation that she was wrongfully terminated by Pyramid, Pyramid must be dismissed as a defendant to this action. II. STATEMENT OF FACTS Pyramid LA Management, L.P. (“Pyramid”) owns and manages hotels, one of which is the Sheraton Gateway LAX (“Sheraton Gateway”). Declaration of Erika Barba (“Barba Decl.”) { 3. Pyramid hires in-house employees, many of whom help operate its in-house restaurants and cafes. Barba Decl. 4. During the period relevant to this case, Pyramid had a business relationship with Recana Solutions, LLC (“Recana”), a temporary staffing agency that provided Pyramid with temporary workers on an as-needed basis. UMF No. 1; Barba Decl. 4. The Agreement between Recana and Pyramid, as well as operating practice, made Recana solely responsible for all aspects of the employment relationship with the temporary workers, which, by its terms and by practice, included but was not limited to screening, hiring, firing, 1 DEFENDANT PYRAMID LA MANAGEMENT, L.P.”S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT, OR ALTERNATIVELY, SUMMARY ADJUDICATION - Case No. 19STCV09216 B A K E R & H O S T E T L E R LL P A T T O R N E Y S AT L A W LO S A N G E L E S ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 disciplining, determining the level of compensation and benefits, and maintaining the personnel files, payroll records and other records of the temporary workers hired by Recana. See Barba Decl. 5, Exhibit 1, Temporary Staffing Agreement [PYR000146-152]. Pyramid does not maintain personnel files for any of the temporary workers supplied by any staffing agency, including Recana. Barba Decl. { 6. In or around August 2016, Ms. Avramova began working a temporary job assignment at the Sheraton Gateway as a hostess. Declaration of Christopher Habashy, Esq. { 2, Exhibit A, Plaintiff’s First Amended Complaint q 18. Ms. Avramova was never a direct-hire employee of Pyramid. Barba Decl. 6. Ms. Avramova did not work directly for Pyramid. Barba Decl. { 6. Rather, Ms. Avramova was assigned by Recana to a temporary work assignment at Pyramid. UMEF No. 2; Barba Decl. {] 5-6. After she began her temporary work as a hostess at Sheraton Gateway, Romaine Lescaon, Melanio Wood, or Lorena Flores would call Ms. Avramova directly to ask her work availability for scheduling purposes. Romain Lescaon Declaration (“Lescaon Decl.”) J 4; Melanio Wood" Declaration (“Wood Decl.”) { 4; Lorena Flores Declaration (“Flores Decl.””) 4. Because she performed her work well, Pyramid extended the opportunity to apply for an in-house position with Pyramid to Ms. Avramova. Lescaon Decl. 5; Wood Decl. { 5; Flores Decl. 5. However, Ms. Avramova informed Pyramid that she could not apply for the position because she was not authorized to work in the United States. UMF No. 3; Lescaon Decl. 5; Wood Decl. 5; Flores Decl. 5. Relying on this disclosure that she was not authorized to work in the United States, Pyramid no longer called Ms. Avramova in to work at the Sheraton Gateway. UMF No. 4; Lescaon Decl. 5; Wood Decl. { 5; Flores Decl. 5. After a temporary staffing agency employee's work assignment at Pyramid ends, Pyramid no longer has any control over the working conditions or any other term or condition of the individual’s employment. Barba Decl. {8. In addition, Pyramid has no knowledge of or input into any aspect of the temporary employee's new employment placement, if any. Barba Decl. { 8. Pyramid has no knowledge of Ms. Avramova’s employment status with Recana after March 19, ! Melanio Wood also goes by the name “Butch”. 2 DEFENDANT PYRAMID LA MANAGEMENT, L.P.”S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT, OR ALTERNATIVELY, SUMMARY ADJUDICATION - Case No. 19STCV09216 B A K E R & H O S T E T L E R LL P A T T O R N E Y S AT L A W LO S A N G E L E S ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2017. UMF No. 5; Lescaon Decl. 7; Wood Decl. { 7; Flores Decl. { 7. Pyramid never told Recana to terminate Ms. Avramova’s employment with Recana. UMF No. 6; Lescaon Decl. 7; Wood Decl. 7; Flores Decl. 7. III. ARGUMENT “Summary judgment is properly granted when there is no triable issue as to any material fact and the moving party is entitled to judgment as a matter of law.” Horn v. Cushman & Wakefield W., Inc. (1999) 72 Cal. App. 4th 798, 805 “A defendant . . . has met his or her burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action.” CAL. CODE CIv. PROC. § 437¢(p)(2). A moving defendant may support its motion “with affirmative evidence negating an essential element of the responding party’s case,” and may also “point to the absence of evidence to support the plaintiff's case.” Saelzler v. Advanced Grp. (2001) 25 Cal. 4th 763, 780.The burden then shifts to the plaintiff to assert “substantial responsive evidence” showing there is a triable issue of material fact. Guz v. Bechtel Nat'l Inc. (2000) 24 Cal. 4th 317, 356; See Hersant v. Dep't of Soc. Servs. (1997) 57 Cal. App. 4th 997, 1004; CAL. Civ. PROC. CODE § 437c(p)(2). An issue of fact cannot be “created by speculation or conjecture,” nor can it be “raised by cryptic, broadly phrased, and conclusory assertions . . . , or mere possibilities . . . .” Horn, 72 Cal. App. 4th at 807; Myricks v. Lynwood Unified Sch. Dist. (1999) 74 Cal. App. 4th 231, 237. A. Pyramid Is Entitled To Summary Judgment Because It Was Not Ms. Avramova’s Employer An essential element for a cause of action for wrongful termination in violation of public policy is the existence of an employment relationship between the plaintiff and the defendant. See Weinbaum v. Goldfarb, Whitman & Cohen (1996) 46 Cal. App. 4th 1310, 1315 (“the duty on which the tort is based is a creature of the employer-employee relationship, and the breach of that duty is the employer's improper discharge of an employee...”). Courts have consistently held that a third party who was not the plaintiff's employer and cannot be liable for wrongfully terminating the plaintiff's employment in violation of public 3 DEFENDANT PYRAMID LA MANAGEMENT, L.P.”S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT, OR ALTERNATIVELY, SUMMARY ADJUDICATION - Case No. 19STCV09216 B A K E R & H O S T E T L E R LL P A T T O R N E Y S AT L A W LO S A N G E L E S ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 policy. See Weinbaum, supra, at 1317 (holding that non-employers are “legally incapable of committing the tort of wrongful discharge in violation of public policy”); see also Vernon v. State of California (2004) 116 Cal. App. 4th 114, 133 (no violation of FEHA for non-employer where alleged discrimination “was caused by two separate entities acting independently, not assisting one another”). As noted in Doe I v. Wal-Mart Stores, Inc, (9th Cir. 2009) 572 F.3d 677, 682, “[t]he key factor to consider in analyzing whether an entity is an employer is the right to control and direct the activities of the person rendering service, or the manner and method in which the work is performed.” Indeed, a “finding of the right to control employment requires. ..a comprehensive and immediate level of ‘day-to-day’ authority over employment decisions.” Wal-Mart Stores, Inc., supra, citing Vernon v. State (2004) 116 Cal. App.4th 114. Contrary to the authorities cited above, Pyramid had no right to control or direct Ms. Avramova once she stopped providing services at the Sheraton Gateway on or around March 19, 2017. Pyramid no longer benefitted from Ms. Avramova's work once her working relationship with Pyramid ended. Neither party disputes that Ms. Avramova never again worked for Pyramid after March 19, 2017. Any joint employment relationship between Recana and Pyramid as it would have pertained to Ms. Avramova concluded on March 19, 2017. There is no evidence showing that Pyramid exercised any control over Ms. Avramova's working conditions after March 19, 2017. Barba Decl. { 8. Further, there was no contact between Pyramid and Recana regarding Ms. Avramova after March 19, 2017.2 Barba Decl. 9. In fact, Pyramid has no knowledge regarding Ms. Avramova’s continued employment with Recana after March 19, 2017. UF 5; Lescaon Decl. 7; Wood Decl. { 7; Flores Decl. 7. Accordingly, Ms. Avramova's wrongful termination cause of action-and all other causes of action based on her alleged termination-against Pyramid must fail. 2 Other than in connection with this litigation. 4 DEFENDANT PYRAMID LA MANAGEMENT, L.P.”S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT, OR ALTERNATIVELY, SUMMARY ADJUDICATION - Case No. 19STCV09216 B A K E R & H O S T E T L E R LL P A T T O R N E Y S AT L A W LO S A N G E L E S ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 B. Even Assuming That Pyramid and Recana Were Joint Emplovers of Ms. Avramova At the Time of her Termination, Pyramid Cannot Be Held Vicariously Liable For Any Allegedly Wrongful Acts Taken By Recana California courts consistently refuse to impose vicarious liability in co-employment situations where there is no duty owed to the plaintiff by one of the co-employers. See Serrano v. Aerotek, Inc. (2018) 21 Cal. App. 5th 773, 782 (rejecting the plaintiff's “attempt to place a heightened duty” on the co-employer staffing agency to police employee meal breaks); see also Noe v. Superior Court (2015) 237 Cal. App. 4th 316, 333-334 (“whether a [joint] employer is liable under the Labor Code depends on the duties imposed under the particular statute at issue”). In Serrano, supra, at 783, California's First Appellate District recently refused to impose liability against a co-employer staffing agency where the host employer allegedly failed to provide compliant meal periods for the temporary employees. Specifically, the Serrano Court held that the staffing agency was not vicariously liable for any failure to provide meal periods where the host employer was controlling and supervising the employees’ meal periods, the staffing agency had a compliant meal break policy, and the parties' co-employment contract required the host employer to comply with applicable federal, state and local laws. Id. at 781- 782. The Court noted that even though the staffing agency might have had actual or constructive knowledge of missed or late meal breaks visible on employee time cards, such knowledge alone would not establish liability. Id. In so holding, the Serrano Court explained that “whether an employer is liable for a co- employer's violations depends on the scope of the employer's own duty under the relevant statutes.” Serrano, supra, at 84 (emphasis added). The Court further noted the lack of authority “to support the conclusion that an employer is liable not only for a breach of its own duty but also for a co-employer's breach of the co-employer's own duty.” Id. Much like the staffing agency in Serrano, Pyramid did not violate any duty owed to Ms. Avramova. Pyramid had no employment relationship with Ms. Avramova when the allegedly wrongful act occurred-nor does it have actual knowledge that Ms. Avramova’s employment by Recana was terminated. UMF No. 5; Barba Decl. J 8-9; Lescaon Decl. 7; Wood Decl. 7; Flores Decl. 7. Any control and/or supervision of Ms. Avramova by Pyramid 5 DEFENDANT PYRAMID LA MANAGEMENT, L.P.”S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT, OR ALTERNATIVELY, SUMMARY ADJUDICATION - Case No. 19STCV09216 B A K E R & H O S T E T L E R LL P A T T O R N E Y S AT L A W LO S A N G E L E S ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ceased by March 19, 2017. 1d. As of that time, Recana became her only “employer.” Under those circumstances, there is simply no authority allowing Ms. Avramova to bootstrap liability onto Pyramid for actions taken without Pyramid's consent, knowledge, input or control. C. Ms. Avramova’s Discrimination and Retaliation Causes of Action Fail. Ms. Avramova’s First and Second Causes of Action for pregnancy discrimination and retaliation also fail. In the absence of direct evidence of discriminatory intent, as here, those claims are subject to the McDonnell Douglas burden-shifting analysis in which: (1) a plaintiff has the initial burden to establish a prima facie case of discrimination or retaliation; (2) the burden of production then shifts to the employer to offer a legitimate, nondiscriminatory, or nonretaliatory reason for its action; and (3) the burden then shifts back to the plaintiff to prove through “substantial responsive evidence” that the employer’s reason was a pretext to mask an illegal motive. See Guz, 24 Cal. 4th at 354-56; See Hersant, 57 Cal. App. 4th at 1004; Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal. 4th 1028, 1042. Here, Ms. Avramova cannot establish a prima facie case of either discrimination or retaliation, and, even assuming she could, she cannot establish a triable issue of fact as to pretext. UMFs No. 1-6. 1. Ms. Avramova Cannot Establish a Prima Facie Case of Pregnancy Discrimination or Retaliation. To establish a prima facie case of pregnancy discrimination, a plaintiff must show (1) she was a member of a protected class; (2) she was performing competently in the position she held; (3) she suffered an adverse employment action; and (4) there is evidence that suggests the employer’s motive for the adverse employment action was discriminatory. Guz, 24 Cal. 4th at 355. To establish a prima facie case of retaliation, a plaintiff must show (1) she engaged in a protected activity, (2) was thereafter subjected to an adverse employment action, and (3) causation. Yanowitz, 36 Cal. 4th at 1065-66. Ms. Avramova cannot establish that Pyramid’s decision to stop calling her occurred under circumstances suggesting a discriminatory or retaliatory motive. UMFs No. 3-4; Lescaon Decl. 5; Wood Decl. { 5; Flores Decl. q 5. Further, there is no evidence to suggest that Pyramid’s belief that Ms. Avramova was not authorized to work in the United States was untrue or in any way related to her pregnancy. UMF 6 DEFENDANT PYRAMID LA MANAGEMENT, L.P.”S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT, OR ALTERNATIVELY, SUMMARY ADJUDICATION - Case No. 19STCV09216 B A K E R & H O S T E T L E R LL P A T T O R N E Y S AT L A W LO S A N G E L E S ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 No. 3; Lescaon Decl. 5; Wood Decl. { 5; Flores Decl. {5. Pyramid had invited Ms. Avramova to apply for an in-house position, because her supervisors liked her, but she informed Pyramid that she did not have the necessary documentation to work in the United States. Id. Relying on this disclosure, Pyramid made the decision to no longer call Ms. Avramova to work. UMF No. 4; Lescaon Decl. 5; Wood Decl. 5; Flores Decl. 5. Thus, after March 19, 2017, when Ms. Avramova was last on the Sheraton Gateway premises, Pyramid had no further contact or relationship with her. Lescaon Decl. 7; Wood Decl. { 7; Flores Decl. {7. Ms. Avramova has presented no evidence in support of her discrimination or retaliation claims other than her alleged termination. Thus, Ms. Avramova’s discrimination and retaliation claims fail outright. See Levy v. Regents of Univ. of California (1988) 199 Cal. App. 3d 1334, 1348-1349 (affirming summary judgment for defendant and holding plaintiff failed to establish a prima facie case of discrimination under the FEHA where plaintiff was unable to demonstrate a causal connection between protected status and adverse employment action); Yanowitz, 36 Cal. 4th at 1071 (finding same for retaliation). 2. Pyramid has met its Burden to Demonstrate that Ms. Avramova’s Placement at the Sheraton ended for a Legitimate, Nondiscriminatory, Nonretaliatory Reason Even if Ms. Avramova could establish a prima facie claim of discrimination or retaliation (and she cannot), the burden shifts to Pyramid to only “articulate” a legitimate, nondiscriminatory reason for its decision. Texas Dep't of Cmty. Affairs v. Burdine (1981) 450 U.S. 248, 253-54. In conducting this inquiry, the question is not whether the decision was based on correct assumptions, but whether Pyramid reasonably believed those reasons and validly exercised its business judgment. Guz, 24 Cal. 4th at 358. Pyramid’s reasons need not meet the approval of a judge or jury, as long as it was not discriminatory. Douglas v. Anderson (9th Cir. 1981) 656 F.2d 528, 534. Pyramid is informed and believes that Ms. Avramova was not authorized to work in the United States. UMF No. 3; Lescaon Decl. 5; Wood Decl. { 5; Flores Decl. 5. Even assuming arguendo that Pyramid’s decision to stop calling Ms. Avramova because of her documentation status constitutes a “termination” - which Pyramid denies - Pyramid’s clearly articulated reason to stop calling her is patently neither discriminatory nor retaliatory. 7 DEFENDANT PYRAMID LA MANAGEMENT, L.P.”S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT, OR ALTERNATIVELY, SUMMARY ADJUDICATION - Case No. 19STCV09216 B A K E R & H O S T E T L E R LL P A T T O R N E Y S AT L A W LO S A N G E L E S ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 UMF Nos. 3-4; Lescaon Decl. 5; Wood Decl. 5; Flores Decl. q 5. Pyramid stopped calling Ms. Avramova for the simple and lawful reason that she disclosed that she did not have the necessary documentation to work in the United States. Id. 3. Ms. Avramova Cannot Establish That Pyramid’s Legitimate Reasons for its Actions Were Pretextual. Ms. Avramova bears the burden of offering “substantial evidence” that Pyramid’s stated reason for the ending of her placement at the Sheraton Gateway was untrue or pretextual, or evidence that Pyramid acted with a discriminatory animus, or a combination of the two, such that a reasonable trier of fact could conclude that Pyramid engaged in intentional discrimination. Hersant, 57 Cal. App. 4th at 1004-1005. She must “demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions” that a reasonable fact finder could rationally determine that the stated reason for the termination was a pretext for discrimination or retaliation. Scotch v. Art Institute of California, (2009) 173 Cal. App. 4th 986, 1007. Ms. Avramova has no such evidence. Ms. Avramova’s subjective belief that her employment was terminated by Pyramid because of her pregnancy does not suffice to meet her burden to show pretext. Morgan v. Regents of University of Cal. (2000) 88 Cal. App. 4th 52, 56 (to avoid summary judgment, a plaintiff cannot “simply show the employer’s decision was wrong, mistaken, or unwise”). Further, temporal proximity alone cannot prove pretext; the complaining party must present additional supporting evidence to support their claim. See, e.g. Megivern v. Glacier Hills Inc. (6th Cir. 2013) 519 Fed.Appx. 385, 398 (applying the McDonnell Douglas test, emphasizing that timing of termination must be accompanied by other, independent evidence of pretext for plaintiff to succeed). Here, although Ms. Avramova alleges that she was “terminated” shortly after telling Pyramid that she was pregnant, she has no other evidence to support her claims of discrimination or retaliation-she relies entirely on temporal proximity. Ms. Avramova has provided no evidence that anyone at Pyramid made negative comments regarding her pregnancy or that she suffered any adverse action while she remained placed at the Sheraton Gateway. Further, Pyramid never told Recana to terminate Ms. Avramova’s 8 DEFENDANT PYRAMID LA MANAGEMENT, L.P.”S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT, OR ALTERNATIVELY, SUMMARY ADJUDICATION - Case No. 19STCV09216 B A K E R & H O S T E T L E R LL P A T T O R N E Y S AT L A W LO S A N G E L E S ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 employment with Recana. UMF No. 6; Lescaon Decl. {7; Wood Decl. { 7; Flores Decl. q 7. Accordingly, Ms. Avramova’s claims for discrimination and retaliation fail. D. Ms. Avramova’s Derivative Causes of Action Fail. Ms. Avramova has no evidence to support her allegations of discrimination or retaliation. UMF No. 1-6. See supra, Section C. Absent such evidence, she simply cannot establish her derivative claims of failure to prevent discrimination and retaliation, or wrongful termination.? See Hanson v. Lucky Stores (1999) 74 Cal. App. 4th 215, 229 (where a plaintiff's FEHA discrimination claim fails, his claim for wrongful termination must also fail); Trujillo v. N. Cnty. Trans. Dist. (1998) 63 Cal. App. 4th 280, 288-89 (a failure to prevent discrimination claim exists only if there is a viable underlying discrimination claim;). Thus, these claims fail. E. Ms. Avramova is Not Entitled to Punitive Damages. Finally, Ms. Avramova’s prayer for punitive damages must be dismissed because she cannot meet the “onerous” burden of establishing “by clear and convincing evidence” that an officer, director, or managing agent of Pyramid was guilty of “oppression, fraud, or malice.” CAL. C1v. CODE § 3294; Aquino v. Super. Ct (1993) 21 Cal. App. 4th 847, 857-58, “Clear and convincing evidence” requires a finding of “substantial probability.” In re Angelia P. (1981) 28 Cal. 3d 908, 919 (the evidence must be “so clear as to leave no substantial doubt [and] sufficiently strong to command the unhesitating assent of every reasonable mind”). Further, a plaintiff seeking punitive damages against a corporate employer based on the acts of an employee must show that the employee exercised substantial discretionary authority over significant aspects of a corporation's business. Jarman v. HCR ManorCare, Inc. (App. 4 Dist. 2017) 215 Cal.Rptr.3d 231, rehearing denied, review granted 219 Cal .Rptr.3d 470, 396 P.3d 596. Ms. Avramova cannot offer any such evidence. Again, Ms. Avramova does not allege that any Pyramid officer, director or managing agent ever said anything negative regarding her pregnancy. Nor was she ever terminated by Pyramid-Pyramid’s decision to stop calling Ms. Avramova because of her documentation status 3 Plaintiff’s cause of action for declaratory judgment is also derivative of her other claims and is unfounded and unsupported by the evidence. 9 DEFENDANT PYRAMID LA MANAGEMENT, L.P.”S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT, OR ALTERNATIVELY, SUMMARY ADJUDICATION - Case No. 19STCV09216 B A K E R & H O S T E T L E R LL P A T T O R N E Y S AT L A W LO S A N G E L E S ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 had no impact on Ms. Avramova’s employment with Recana. Further, Ms. Avramova has presented no evidence that either Romain Lescaon, Melanio Wood, or Lorena Flores were managing agents of Pyramid. A “managing agent” includes only those corporate employees vested with substantial discretionary authority over decisions that ultimately determine corporate policy regarding the matter as to which punitive damages are sought. See White v. Ultramar, Inc. (1999) 21 Cal. 4th 563, 566-67. Ms. Avramova’s prayer for punitive damages thus cannot survive summary judgment. IV. CONCLUSION Each of Ms. Avramova’s causes of action rely on the unfounded allegation that Pyramid terminated her employment because of her pregnancy-she is mistaken. Even assuming arguendo that Pyramid’s decision to stop calling Ms. Avramova because of her documentation status constitutes a “termination” - which Pyramid denies - Pyramid’s clearly articulated reason to stop calling her is patently neither discriminatory nor retaliatory. Pyramid stopped calling Ms. Avramova because she disclosed that she was unauthorized to work in the United States. Further, Pyramid believes that Recana remained Ms. Avramova’s employer after March 19, 2017 and, thus, any termination that she suffered was done by Recana without Pyramid’s input or control. The effective end of Ms. Avramova’s working relationship with Pyramid was not a termination of her employment with Recana. Because there is no evidence demonstrating that Ms. Avramova suffered discrimination or retaliation by Pyramid while she provided services at the Sheraton Gateway, Pyramid must be dismissed as a defendant in this action. Should the Court find that Pyramid is not entitled to summary judgment as to the entire action, Pyramid respectfully requests summary adjudication as to each of Plaintiff's causes of action on the same grounds set forth above. Dated: March 26, 2020 BAKER & HOSTETLER LLP By: /S/ Sabrina L. Shadi SABRINA L. SHADI CHRISTOPHER M. HABASHY MONIQUE G. MATAR Attorneys for Defendant PYRAMID LA MANAGEMENT, L.P. 10 DEFENDANT PYRAMID LA MANAGEMENT, L.P.”S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT, OR ALTERNATIVELY, SUMMARY ADJUDICATION - Case No. 19STCV09216 B A K E R & H O S T E T L E R LL P A T T O R N E Y S AT L A W LO S A N G E L E S AN nn Bk W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE I am employed in Los Angeles County, California. I am over the age of eighteen years and not a party to the within-entitled action. My business address is 11601 Wilshire Boulevard, Suite 1400, Los Angeles, CA 90025-0509. On March 26, 2020, I served a copy of the within document(s): DEFENDANT PYRAMID LA MANAGEMENT, L.P.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT, OR ALTERNATIVELY, SUMMARY ADJUDICATION VIA EMAIL: by transmitting via e-mail or electronic transmission the document(s) listed above to the person(s) at the e-mail address(es) set forth below. Kaveh S. Elihu Catherine Wagner Calderaro EMPLOYEE JUSTICE LEGAL GROUP 3055 Wilshire Blvd., Suite 1120 Los Angeles, CA 90010 Telephone: 213.382.2222 Facsimile: 213.382.2230 Emails: kelihu@ejlglaw.com; cwagnercalderaro @ejlglaw.com; dcasarrubias @ejlglaw.com Attorneys for Plaintiff Kristina Avramova I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on March 26, 2020, at Los Angeles, California. /s/ S. Suzuki S. Suzuki PROOF OF SERVICE Case No. 19STCV09216
