Motion for Summary Judgment

Cal. Super. - 2nd Dist.August 15, 2019

123 23561 378401583 562400020067960 895 113454 2190 SUPERIOR COURT OF CALIFORNIA, MINUTE ORDER TIME: 08:20:00 AM JUDICIAL OFFICER PRESIDING: Ronda McKaig COUNTY OF VENTURA VENTURA DATE: 01/03/2022 DEPT: 41 CLERK: Kim Goodman REPORTER/ERM: Mary Ferreira CASE NO: 56-2019-00532109-CU-WT-VTA CASE TITLE: Morales vs. Rancho Simi Insurance Agency Inc CASE CATEGORY: Civil - Unlimited CASE TYPE: Wrongful Termination EVENT TYPE: Motion for Summary Judgment MOVING PARTY: Rancho Simi Insurance Agency Inc, Alex Jakubanis CAUSAL DOCUMENT/DATE FILED: Motion for Summary Judgment or in the Alternative Summary Adjudication, 10/06/2021 STOLO APPEARANCES STOLO Sevahn Simonian, counsel, present for Plaintiff(s) telephonically. Marie Maurice, counsel, present for Defendant(s) telephonically. Stolo At 8:43 a.m., court convenes in this matter with all parties present as previously indicated. Pursuant to the stipulation of the appearing parties and agreement of the certified shorthand reporter, the Court orders the reporter appointed to serve as an official reporter pro tempore in this matter. The Court gives its tentative ruling, as set forth on the record. Matter submitted to the Court with argument. The Court finds/orders: Matter is taken under submission. Having been previously taken under submission, the Court rules as follows: Re: Defendants' motion for summary judgment, or alternatively, summary adjudication (opposed) Defendants' motion for summary judgment is denied. Defendants' motion for summary adjudication is granted in part and denied in part. The motion is granted as to issues 2, 3, 4, 5, 8, 9, 10, 11, 12, and 13. The motion is denied as to issues 1, 6, 7, 14, 15 and 16. EVIDENTIARY RULINGS Plaintiff's objections to the Jakubanis declaration are sustained as to paragraphs 7, 8, 9 and Exh. X. FACTUAL RULINGS For purposes of this motion only, the Court makes the following factual findings: The following facts are undisputed and established: 1, 2, 4-11, 13-15, 17-27, 29, 31, 34, 37-42, 54, 55, 57, 61, 64-68, 72, 75, 78-86, 88, 92, 93, 101, 103, 104, 107-109, 111, 115, 117, 118, 121, 122, 127, VEN-FNR-10.03 MINUTE ORDER DATE: 01/03/2022 Page 1 DEPT: 41 CASE TITLE: Morales vs. Rancho Simi Insurance Agency Inc CASE NO: 56-2019-00532109-CU-WT-VTA 130, 131, 137, 140, 143, 152, 154-160, 165, 173, 176, 178, 182, 185-187, 193 The following facts are disputed but established: 30, 32, 33, 35, 36, 44-48, 50-53, 56, 58-60, 69, 70, 71, 73, 76, 77, 87, 90, 91, 94, 95, 97-99, 124, 126, 128, 136, 138, 141, 142, 145, 153, 161-163, 166, 170-172, 174, 181, 184 & 188 The following facts are disputed and not established: 3, 12, 16, 28, 43, 49, 62, 63, 74, 89, 96, 100, 102, 105, 106, 110, 11-114, 116, 110, 120, 123, 125, 129, 132, 133, 134, 139, 144, 146-151, 164, 167-169, 175, 177, 179, 180, 183, 189, 190-192, 194-196 ANALYSIS Issue No. 1 Defendant identifies the first issue as follows: "Plaintiff received her DFEH Right to Sue Letter on April 3, 2019. Plaintiff failed to exhaust her administrative remedies as to any alleged unlawful acts occurring prior to April 3, 2018, including allegations related to (1) disability discrimination related to pregnancy; (2) harassment related to pregnancy; (3) disability discrimination related to arthritis; (4) harassment related to arthritis; (5) failure to engage in the interactive process for disabilities related to pregnancy or arthritis; (6) failure to accommodate for disabilities related to pregnancy or arthritis; (7) retaliation in violation of FEHA; (8) failure to prevent discrimination, harassment or retaliation; and (9) sex/gender discrimination. These claims are barred as a matter of law by the one-year limitations period for filing a complaint of discrimination with the Department of Fair Employment and Housing as applied at the time these incidents arose. (DFEH). Gov. Code §12960(d)." Defendants contend that because Plaintiff received her right to sue letter on April 3, 2019, she has only exhausted her administrate remedies for alleged violations between April 3, 2018 and April 3, 2019. Defendants argue that Plaintiff's arthritis related claims are time barred as she did not have arthritis related disabilities and did not have work restrictions and did not need any accommodations related to her arthritis when she returned to work from August 2017 through April 20, 2018. Defendants argue that Plaintiff was not denied any time off nor was she denied any accommodation. Defendants also argue that Plaintiff's pregnancy-related disabilities did not entail work restrictions or accommodations when she returned to work and she was not denied time off. Plaintiff argues that the mistreatment Plaintiff endured was continuing throughout 2017 to 2018. Gov. Code, § 12960 provides, in pertinent part, that an employee must exhaust administrative remedies by filing a complaint with the DFEH, and that no complaint may be filed "after the expiration of one year from the date upon which the alleged unlawful practice [] occurred. . . ." Plaintiff's claims may be time barred, but Defendants have not established that in their motion because there is nothing in the separate statement that establishes when Plaintiff's DFEH complaint was filed, which is the relevant date for purposes of determining this issue. All relevant facts must be contained in the separate statement. The Court denies summary adjudication as to Issue No. 1. Issue No. 2 Defendants frame the second issue as follows: "Plaintiff's 1st Cause of Action for Disability (Arthritis) Harassment against both defendants Rancho Simi and Jakubanis in violation of the Fair Employment and Housing Act ("FEHA") fails as a matter of law because Plaintiff cannot establish a prima facie case. Even if Plaintiff does, Defendants had a legitimate non-discriminatory and non-retaliatory reason for the claimed adverse employment action." To prevail on a harassment claim, a plaintiff must show "(1) that he was subjected to verbal or physical conduct because of his [protected class]; (2) 'that the conduct was unwelcome'; and (3) 'that the conduct was sufficiently severe or pervasive to alter the conditions of the plaintiff's employment and create an abusive work environment.'" (Kang v. U. Lim America, Inc. (9th Cir. 2002) 296 F.3d 810, 817; see also Gregory v. Widnall, 153 F.3d 1071, 1074 (9th Cir.1998). Harassment must be "sufficiently severe or pervasive" so as to "alter the conditions of [the victim's] employment and create an abusive working environment." (Mokler v. County of Orange (2007) 157 Cal.App.4th 121, 142 [citations omitted].) Defendants have not established that Plaintiff was not a member of a protected class or that the conduct VEN-FNR-10.03 MINUTE ORDER DATE: 01/03/2022 Page 2 DEPT: 41 CASE TITLE: Morales vs. Rancho Simi Insurance Agency Inc CASE NO: 56-2019-00532109-CU-WT-VTA was welcome. Plaintiff had arthritis, it potentially qualifies as disability, and the evidence can be interpreted to suggest that Defendants only begrudgingly allowed her to take time off for her arthritis, which Plaintiff testified made her feel bad. However, Defendants have established that Plaintiff will be unable to prove that the acts complained of were severe and pervasive so as to alter the conditions of Plaintiff's employment and create an abusive environment. It was undisputed that Plaintiff claimed to be physically disabled from November 2009 to the present due to arthritis. (UMF 27.) During her pregnancy in 2016 to 2017, Plaintiff's arthritis was asymptomatic. (UMF 29.) It was established that Plaintiff claimed arthritis disability in 2018 that impacted her ability to type, make use of her hands and at times perform work. (UMF 30.) No one asked Plaintiff for a doctor's note related to her arthritis after her maternity leave. (UMF 31.) All Plaintiff needed from Defendants was time off related to her arthritis. (UMF 34.) There were no instances when Plaintiff was denied time off due to her arthritis. (UMF 35.) Alex Jakubanis did not harass Plaintiff because of her arthritis. (UMF 60.) Plaintiff's assertions of harassment by Barbara Jakubanis concerning Plaintiff's arthritis were limited to emails that Ms. Jakubanis sent out to all employees about the company's absence policy after Plaintiff requested time off. These emails were sent on approximately 3-5 occasions over a 5-year period. (UMF 53, 55 and 59.) This evidence is sufficient to shift the burden to Plaintiff. Plaintiff's evidence does not establish severe and pervasive harassment related to Plaintiff's arthritis that altered the conditions of Plaintiff's employment and created an abusive working environment. Plaintiff points to a change in policy that occurred in 2013 and a question in 2018 about the need for time off right after returning from maternity leave. The emails about which Plaintiff complains were sporadic, not severe and pervasive. There are no other established facts that support Plaintiff's claim. The Court grants summary adjudication as to Issue No. 2. Issue No. 3 Defendant's define the third issue as "Plaintiff's 2nd Cause of Action for Failure to Provide Reasonable Disability (Arthritis) Accommodation in violation of FEHA against defendant Ranchi Simi fails as a matter of law because Plaintiff cannot establish a prima facie case. Even if Plaintiff does, Defendants had a legitimate non-discriminatory and non-retaliatory reason for the claimed adverse employment action." To establish this claim, a plaintiff must demonstrate a qualifying disability, the ability to perform the essential functions of the job and the employer's failure to reasonably accommodate the disability. (Wilson v. County of Orange (2009) 169 Cal.App.4th 1185, 1192.) Defendants argue that UMFs 33-36 demonstrate that Plaintiff requested the accommodations of reimbursement for a wrist cushion for her arthritis, as well as time off. Plaintiff admitted she was not denied any accommodation and that she was never denied time off for her arthritis. Defendants met their burden of demonstrating Plaintiff's inability to establish a required element of this claim. In response, Plaintiff points to hostility she experienced in seeking time off. Plaintiff cites no authority suggesting that such purported hostility could constitute a failure to accommodate. The Court grants summary adjudication as to Issue No. 3. Issue No. 4 Defendants identify the fourth issue as "Plaintiffs 3rd Cause of Action for Failure to Engage in the Interactive Process (Arthritis) in violation of FEHA against defendant Ranchi Simi fails as a matter of law because Plaintiff cannot establish a prima facie case. Even if Plaintiff does, Defendants had a legitimate nondiscriminatory and non-retaliatory reason for the claimed adverse employment action." To prevail on a claim for failure to engage in the interactive process, "an employee must identify a reasonable accommodation that would have been available at the time the interactive process should have occurred. An employee cannot necessarily be expected to identify and request all possible accommodations during the interactive process itself . . . however . . . to prevail, the employee must be able to identify an available accommodation the interactive process should have produced." (Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1018-1019, citations omitted.) Defendants argue that Plaintiff did not suffer from a protected disability and that she received all the VEN-FNR-10.03 MINUTE ORDER DATE: 01/03/2022 Page 3 DEPT: 41 CASE TITLE: Morales vs. Rancho Simi Insurance Agency Inc CASE NO: 56-2019-00532109-CU-WT-VTA accommodations she requested. Defendants have not demonstrated that Plaintiff will be unable to establish that she suffered from a protected disability, but Defendants did establish that Plaintiff only ever requested a wrist cushion and time off and that she was accommodated. The burden shifts to Plaintiff to identify facts that show Defendants could have but failed to provide a reasonable accommodation that would have been available as part of an interactive process. In response, Plaintiff does not identify any other accommodation that could or should have been provided. Instead, Plaintiff asserts that, although she was provided leave, the leave she was provided came with an unfair reduction in benefits, discipline and ultimately, termination. The evidence cited by Plaintiff relates to Defendants purportedly giving Plaintiff a "hard time" about requests for time off does not support Plaintiff's assertions. The Court grants summary adjudication as to Issue No. 4. Issue No. 5 Defendants identify the fifth issue as "Plaintiff's 4th Cause of Action for Disability (Arthritis) Discrimination in violation of FEHA against defendant Ranchi Simi fails as a matter of law because Plaintiff cannot establish a prima facie case. Even if Plaintiff does, Defendants had a legitimate non-discriminatory and non-retaliatory reason for the claimed adverse employment action." The elements of this claim are that a plaintiff must establish that 1) she suffered from a disability or was perceived as disabled, 2) she could perform the essential duties of her job with or without reasonable accommodation, and 3) plaintiff suffered an adverse employment action because of the disability. (Brundage v. Hahn (1997) 57 Cal.App.4th 228, 236-237.) Defendants contend that Plaintiff cannot establish the first or third elements because she was not disabled and no adverse employment actions were taken against her as a result of her disability. Defendants presented UMFs that established a lack of adverse employment actions taken against Plaintiff related to her arthritis and the burden therefore shifts to Plaintiff on that issue. Plaintiff alleged that her arthritis was a disability, she could do her job with reasonable accommodation, and she suffered the adverse employment action of hostile written and verbal comments concerning her requests for leave to accommodate her arthritis. The Court is not persuaded that the written and verbal comments at issue in this case constitute an adverse employment action. Adverse employment action changes the terms and conditions of employment. "'A change that is merely contrary to the employee's interests or not to the employee's liking is insufficient.' [Citation.] '"[W]orkplaces are rarely idyllic retreats, and the mere fact that an employee is displeased by an employer's act or omission does not elevate that act or omission to the level of a materially adverse employment action."'" (McRae v. Department of Corrections & Rehabilitation (2006) 142 Cal.App.4th 377, 386.) "'A mere oral or written criticism of an employee ... does not meet the definition of an adverse employment action under [the] FEHA.'" (Pinero v. Specialty Restaurants Corp. (2005) 130 Cal.App.4th 635, 646.) Additionally, "[m]ere ostracism in the workplace is insufficient to establish an adverse employment decision. [Citations.] However, '"workplace harassment, if sufficiently severe or pervasive, may in and of itself constitute an adverse employment action sufficient to satisfy the second prong of the prima facie case for ... retaliation cases."'" (Light v. Department of Parks & Recreation (2017) 14 Cal.App.5th 75, 92, citations omitted.) As the Court has already indicated, Defendants' alleged hostile responses to Plaintiff's time off requests related to arthritis were not severe or pervasive. The Court has been unable to identify any case where comments that were not severe or pervasive could be considered an adverse employment action. Plaintiff presented no argument or evidence that she was ever demoted, suspended, not promoted, had job responsibilities taken away, decreased pay or issued poor performance reviews as a result of her arthritis. Not allowing her to use a sick day on April 2, 2018 could potentially be a denial of benefits, but there are no facts to suggest that the refusal to allow Plaintiff to use a sick day had anything to do with Plaintiff's arthritis. Indeed, Plaintiff testified that she called out sick that day due to a virus that gave her laryngitis. (Exh. D, pp. 25-26.) Plaintiff's call to the State agency about Defendants not using her sick day is also not related to her arthritis, nor is there evidence that her ultimate termination was related to her arthritis. VEN-FNR-10.03 MINUTE ORDER DATE: 01/03/2022 Page 4 DEPT: 41 CASE TITLE: Morales vs. Rancho Simi Insurance Agency Inc CASE NO: 56-2019-00532109-CU-WT-VTA The Court grants summary adjudication as to Issue No. 5. Issue No. 6 Defendants identify the sixth issue as "Plaintiff's 5th Cause of Action for Pregnancy Harassment against both defendants Rancho Simi and Jakubanis in violation of FEHA fails as a matter of law because Plaintiff cannot establish a prima facie case. Even if Plaintiff does, Defendants had a legitimate nondiscriminatory and non-retaliatory reason for the claimed adverse employment action." Defendants argue that Plaintiff cannot establish Plaintiff suffered from a pregnancy-related disability or medical condition during the relevant time period and she cannot establish any of the harassment elements. This cause of action apparently concerns Plaintiff's second pregnancy. (UMFs 64-66.) Defendants argue that Plaintiff requested maternity leave on May 5, 2017 and that Jakubanis approved the leave on May 5, 2017. (UMF 70.) Plaintiff took leave from May 11, 2017 to August 9, 2017. (UMF 71.) Plaintiff provided verified discovery responses indicating that the time period she was discriminated against due to her pregnancy was approximately August 2017 to April 2018. However, Plaintiff agreed she had no pregnancy-related medical conditions, had no work restrictions and was not denied any pregnancy-related leave during that time. She testified that she could not recall anything Alex Jakubanis did to harass her related to her pregnancy and she did not feel harassed by Barbara Jakubanis during that time period. This is sufficient to meet Defendants' burden and the burden shifts to Plaintiff. In response, Plaintiff identifies her testimony in which she explains that her pregnancy required increased prenatal appointments in or around early 2017. Plaintiff relayed that she felt harassed prior to her maternity leave by being given a "hard time" about taking time off for prenatal appointments and by having her requests to schedule maternity leave ignored for 2-3 weeks and initially denied, although ultimately granted. Plaintiff claims that Defendants' scrutiny of her requests for time off was such that she felt she needed to bring a doctor's note to explain the frequency of her appointments. Although Plaintiff fails to explain why her discovery response directed Defendants to the time period after she returned from leave, the dates given in the discovery response were approximate. The evidence cited by Plaintiff raises at least a triable issue of material fact as to whether Plaintiff will be able to prove harassment related to her pregnancy, assuming such a claim is not time-barred. The Court denies summary adjudication as to Issue No. 6. Issue No. 7 Defendants identify the seventh issue as "Plaintiff's 6th Cause of Action for Pregnancy Discrimination in violation of FEHA against defendant Ranchi Simi fails as a matter of law because Plaintiff cannot establish a prima facie case. Even if Plaintiff does. Defendants had a legitimate non-discriminatory and nonretaliatory reason for the claimed adverse employment action." Defendants argue that Plaintiff cannot establish Plaintiff suffered from a pregnancy-related disability or medical condition during the relevant time period and she cannot establish an adverse employment action. Defendants rely on same factual predicates and arguments set forth in Issue No. 6. Defendants meet their initial burden and the burden shifts to Plaintiff. Plaintiff cites to evidence indicating that her vacation time was reduced by five days following her return from maternity leave and that this is an adverse employment action. While Defendants indicate vacation allotments may be prorated to account for leaves of absence during the year, Plaintiff identifies evidence that similarly situated employees did not experience such reductions and the policy describing vacation does not explain that a proration will occur. There is at least a triable issue of material fact as to whether the proration of her vacation time constituted discrimination against Plaintiff as a result of her pregnancy. The Court denies summary adjudication as to Issue No. 7. Issue Nos. 8 and 9 Defendants identify the eighth issue as "Plaintiff's 7th Cause of Action for Failure to Provide Accommodations for Pregnancy and Related Medical Conditions in violation of FEHA against defendant Ranchi Simi fails as a matter of law because Plaintiff cannot establish a prima facie case. Even if Plaintiff VEN-FNR-10.03 MINUTE ORDER DATE: 01/03/2022 Page 5 DEPT: 41 CASE TITLE: Morales vs. Rancho Simi Insurance Agency Inc CASE NO: 56-2019-00532109-CU-WT-VTA does, Defendants had a legitimate non-discriminatory and non-retaliatory reason for the claimed adverse employment action." Defendants identify the ninth issue as "Plaintiff's 8th Cause of Action for Failure to Engage in the Interactive Process regarding Accommodations for Pregnancy and Related Medical Conditions in violation of FEHA against defendant Ranchi Simi fails as a matter of law because Plaintiff cannot establish a prima facie case. Even if Plaintiff does, Defendants had a legitimate non-discriminatory and non-retaliatory reason for the claimed adverse employment action." The elements of these claims have previously been identified. Defendants argue that Plaintiff did not need work accommodations related to her pregnancy. (UMFs 80-84.) Those facts were undisputed and establish that Plaintiff did not need work accommodations for her pregnancy or pregnancy-related medical condition and did not submit any documents evidencing a need for pregnancy or pregnancy related work accommodations or restrictions between Aug. 14, 2017 and April 20, 2018. Plaintiff did not have any doctor appointments related to her pregnancy between August 14, 2017 and April 20, 2018. (UMF 88.) Plaintiff was not disabled by her pregnancy or childbirth at the time of her termination on April 20, 2018. (UMFs 92 & 93.) Defendants met their burden on both issues and the burden shifted to Plaintiff. Plaintiff's response was that she requested intermittent absences and Defendants failed to articulate a single occasion on which its operations were disrupted as a result of Plaintiff's absences. Plaintiff indicates she had to cancel one appointment and does not identify any other occasion when she was refused time off or refused any other reasonable accommodation related to her pregnancy. The fact that Plaintiff contends that Defendants expressed hostility about it does not establish these claims. The Court grants summary adjudication as to Issue Nos. 8 and 9. Issue No. 10 Defendants identify this issue as "Plaintiff's 9th Cause of Action for Sex/Gender Discrimination in violation of FEHA (erroneously identified as the 8th cause of action on page 18 of the FAC) against defendant Ranchi Simi fails as a matter of law because Plaintiff cannot establish a prima facie case. Even if Plaintiff does, Defendants had a legitimate non-discriminatory and non-retaliatory reason for the claimed adverse employment action." To establish this claim, Plaintiff must prove that (1) she was a member of a protected class, (2) she was qualified for the position she sought or was performing competently in the position she held, (3) she suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some other circumstance suggests discriminatory motive. (Guz v. Bechtel Nat. Inc. (2000) 24 Cal. 4th 317, 355.) Defendants point out that Plaintiff's discovery responses establish that her sex/gender discrimination claim is based on events that occurred between approximately August 2017 to April 20, 2018. Defendants also relied on material fact 99 which was established - Plaintiff does not feel and is not sure she was harassed by Defendants because she was a woman. This is sufficient to shift the burden to Plaintiff. Plaintiff's opposition fails to address this claim at all and the failure to address the argument may be construed as a concession or waiver. To the extent Plaintiff relies on her pregnancy in support of this claim, the claim appears to be is wholly duplicative of Plaintiff's pregnancy discrimination claim. The Court grants summary adjudication as to Issue No. 10. Issue No. 11 Defendants identify this issue as "Plaintiff's 10th Cause of Action for Unlawful Retaliation in violation of FEHA against defendant Ranchi Simi fails as a matter of law because Plaintiff cannot establish a prima facie case. Even if Plaintiff does, Defendants had a legitimate non-discriminatory and non-retaliatory reason for the claimed adverse employment action." In her complaint, Plaintiff alleges that during her employment with Defendants RANCHO SIMI INSURANCE, Plaintiff engaged in legally protected activity by, inter alia: (a) reporting and/or opposing VEN-FNR-10.03 MINUTE ORDER DATE: 01/03/2022 Page 6 DEPT: 41 CASE TITLE: Morales vs. Rancho Simi Insurance Agency Inc CASE NO: 56-2019-00532109-CU-WT-VTA disability harassment; (b) reporting and/or opposing disability discrimination; (c) requesting reasonable accommodations for disability; (d) reporting and/or opposing pregnancy harassment; (e) reporting and/or opposing pregnancy discrimination; (f) requesting reasonable accommodations for pregnancy and related medical conditions; and/or (g) reporting and/or opposing sex/gender discrimination. Defendants point out that during Plaintiff's conversation with the state agency, she did not complain about sex/gender, pregnancy or medical disability. Instead, Plaintiff complained about the use of her vacation hours and Defendants' refusal to dock her pay. She did not report any of the issues she alleged in her complaint. Because there is no evidence that Plaintiff engaged in the legally protected activity of reporting discrimination or harassment related to pregnancy, a medical condition or sex/gender, Defendants have sufficiently established that Plaintiff cannot prove this claim. The burden shifts to Plaintiff. Plaintiff reiterates that she reported issues related to her request for sick leave and her objection to Defendants' use of vacation days instead of docking her pay. She claims this issue arose because of her pregnancy leave. Regardless of how it arose, Plaintiff's report to the state agency was not the legally protected activity Plaintiff pled in her complaint. Plaintiff argues that she submitted complaints and opposition to pregnancy discrimination but cites no evidence that supports such a claim. The Court grants summary adjudication as to Issue No. 11. Issue No. 12 Defendants identify this issue as "Plaintiff's 11th Cause of Action for Failure to Take all Reasonable Steps Necessary to Prevent Harassment, Discrimination and/or Retaliation in violation of FEHA against defendant Ranchi Simi fails as a matter of law because Plaintiff cannot establish a prima facie case. Even if Plaintiff does. Defendants had a legitimate non-discriminatory and non-retaliatory reason for the claimed adverse employment action." Defendants argue that Plaintiff cannot show that she was exposed to harassment, discrimination and/or retaliation and therefore there is no claim for Defendants' alleged failure to take reasonable steps to prevent such conduct. To succeed on this argument, Defendants must succeed in defeating all harassment, discrimination and/or retaliation claims. The Court has denied summary adjudication as to Issues No. 6 and 7 involving pregnancy harassment and discrimination. As a result, summary adjudication as to Issue No. 12 must be denied. Issue No. 13 Defendants identify this issue as "Plaintiff's 12th Cause of Action for Unlawful Retaliation in violation of Labor Code §§ 233, 245, 246.5 (erroneously identified as the 9th cause of action on page 22 of the FAC) against defendant Ranchi Simi fails as a matter of law because Plaintiff cannot establish a prima facie case. Even if Plaintiff does, Defendants had a legitimate non-discriminatory and non-retaliatory reason for the claimed adverse employment action." Defendants assert that this claim is based on a violation of Labor Code section 233, which makes it illegal for an employer to deny an employee the right to use sick leave or to discharge the employee for using or attempting to use sick leave. The UMFs establish that Plaintiff admitted that she was provided all time off requested, which would include sick days. Defendants met their burden and the burden shifted to Plaintiff. Plaintiff responds that she was denied sick leave on April 2, 2018, and was forced to take a vacation day. Plaintiff argues that she had a sick day remaining, and "disputes the veracity" of the record proffered by Defendant indicating Plaintiff had no more sick days at that time. Plaintiff's bald statement that she "disputes the veracity" of the record is not enough to raise a triable issue of material fact. Plaintiff does not explain why she disputes the veracity of this record or offer any other evidence to suggest the record is incorrect. Plaintiff's opposition otherwise fails to address the facts or law encompassed in Issue No. 13. The Court grants summary adjudication as to Issue No. 13. VEN-FNR-10.03 MINUTE ORDER DATE: 01/03/2022 Page 7 DEPT: 41 CASE TITLE: Morales vs. Rancho Simi Insurance Agency Inc CASE NO: 56-2019-00532109-CU-WT-VTA Issue No. 14 Defendants define this issue as "Plaintiff's 13th Cause of Action for Unlawful Retaliation in violation of Labor Code §1102.5 against both defendant Ranchi Simi and Jakubanis fails as a matter of law because Plaintiff cannot establish a prima facie case. Even if Plaintiff does, Defendants had a legitimate nondiscriminatory and non-retaliatory reason for the claimed adverse employment action." At the time Plaintiff was an employee, Labor Code section 1102.5 prohibited an employer from retaliating against an employee who reported a violation or possible violation of law to a state agency. For this cause of action, Plaintiff alleges that her employment was terminated because she disclosed information that she reasonably believed constituted violations of local, state or federal law to a public body. Defendants argue that when Plaintiff called the state agency, she did not give her name and she was just calling to see how her sick and vacation days worked. Defendants refer to UMFs 137, 138 and 140. Those facts establish that Plaintiff called a state agency and asked generally how her sick and vacation days worked. Plaintiff did not give her name and did not receive a complaint number. However, whether Plaintiff actually made a complaint is not the issue. Liability under this statue can be predicated even on an employer's mistaken belief that purported violations have been reported. (Diego v. Pilgrim United Church of Christ (2014) 231 Cal.App.4th 913, 923.) As a result, the issue is whether the evidence suggests that Alex Jakubanis believed Plaintiff was reporting labor code violations to the state agency. Which evidence Defendants do not really address, and thus, they are unable to meet their initial burden. Moreover, the evidence indicates that Mr. Jakubanis found out about someone calling the State because the State called him. Mr. Jakubanis wrote a memo that indicates his awareness that Plaintiff contacted the state. The memo itself is vague in terms of whether Mr. Jakubanis thought the report to the state was unacceptable or whether Plaintiff's request that he dock her pay was unacceptable, but such ambiguities cannot be resolved on summary judgment. The Court denies summary adjudication as to Issue No. 14. Issue No. 15 Defendants identify this issue as "Plaintiff's 14th Cause of Action for Wrongful Termination in violation of Public Policy against defendant Ranchi Simi fails as a matter of law because Plaintiff cannot establish a prima facie case. Even if Plaintiff does, Defendants had a legitimate non-discriminatory and nonretaliatory reason for the claimed adverse employment action." To find that Defendants have met their burden on this issue, they must establish they are entitled to relief on the preceding issues. Because the Court denies summary adjudication as to Issue Nos. 6, 7 and 14, summary adjudication as to Issue No. 15 must also be denied. Issue No. 16 Defendants define this issue as "Plaintiff's claim for punitive, exemplary, and/or liquidated damages fails as a matter of law because she cannot establish fraud, malice or oppression as to all of the causes of action." The Court finds that Defendants did not meet their initial burden on this claim in light of the other rulings. Summary adjudication as to Issue No. 16 s denied. Termination for non-discriminatory reason Defendants argue that Plaintiff's claims can otherwise be defeated because they have established that Plaintiff was terminated for a non-discriminatory reason. Defendants did not establish the predicate facts to support this argument. Defendants to submit a proposed order consistent with the rulings set forth herein. VEN-FNR-10.03 MINUTE ORDER DATE: 01/03/2022 Page 8 DEPT: 41 CASE TITLE: Morales vs. Rancho Simi Insurance Agency Inc CASE NO: 56-2019-00532109-CU-WT-VTA Notice to be given by the clerk. STOLO VEN-FNR-10.03 MINUTE ORDER DATE: 01/03/2022 Page 9 DEPT: 41