Motion For Summary Judgment

Motion

Cal. Super. - 2nd Dist.August 10, 2017

Electronically leo by Superior Court of California, County of Los Angeles on 01/10/2019 03:16 PM Sherri R. Carter, Executive Officer/Clerk of Court, by K. Hung,Deputy Clerk © 0 9 O N Un BA W N = N N N N N N N N N e m e m e m p m e m e m e d 0 NN A N Ln BR A W D = O VO N N N N R E W N D = O LAWRENCE J. LENNEMANN, State Bar No. 134108 LAW OFFICE OF LAWRENCE J. LENNEMANN 2550 Via Tejon, Suite 3A Palos Verdes Estates, CA 90274 (424) 206-5335 Telephone lennemann @ att.net Email ALAN G. KEATING, State Bar No. 255549 THE LAW OFFICE OF ALAN KEATING 12534 Valley View Street, Suite 235 Garden Grove, CA 92845 (562) 888-0455 Telephone (714) 891-0400 Facsimile Attorneys for Defendant RESEARCH METAL INDUSTRIES, INC. SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES ALFONSO NUNEZ, an Individual Plaintiff, VS. RESEARCH METAL INDUSTRIES, INC, a California Corporation; and DOES 1 - 20, Inclusive, Defendants. N r ” N r ” N r ’ N r ’ N r ’ N r N r N r N r N a N a N a N r N a N r N a N a N a N e N e ’ NUNEZ V. RESEARCH METAL INDUSTRIES, INC. 1 CASE NO.: BC671648 [Hon. Yvette M. Palazuelos, Dept. 28] DEFENDANT RESEARCH METAL INDUSTRIES, INC.’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, MOTION FOR SUMMARY ADJUDICATION; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF Complete Set of Moving Papers: 1. Notice of Motion and Motion for Summary Judgment; 2. Separate Statement of Undisputed Material Facts; 3. Joint Compendium of Declarations and Evidence; 4. Request for Judicial Notice; 5. [Proposed] Order Reservation No. 181130369892 DATE: March 28, 2019 TIME: 8:30 a.m. DEPT: 28 Complaint Filed: August 10, 2017 Trial Date: April 29, 2019 CASE No. BC671648 DEFENDANT’S NOTICE OF MOTION AND MOTION IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT/ADJUDICATION © 0 9 O N Un BA W N = N N N N N N N N N e m e m e m p m e m e m e d 0 NN A N Ln BR A W D = O VO N N N N R E W N D = O TO PLAINTIFF ALFONSO NUNEZ AND HIS ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that, on March 28, 2019, at 8:30 a.m., or as soon thereafter as the matter may be heard in Department 28 of the above-entitled Court, located at 111 N. Hill Street, Los Angeles, CA 90012, Defendant Research Metal Industries, Inc. (“Defendant”) will and hereby does move this Court for an Order of Summary Judgment pursuant to Section 437c¢ of the California Code of Civil Procedure in favor of Defendant and against Plaintiff Alfonso Nunez (“Plaintiff.”) The Motion shall be made on the ground that the material facts in this case are not in dispute and that Defendant is entitled to Judgment in its favor, and against Plaintiff, as a matter of law as to the entire Complaint. Alternatively, if for some reason Judgment cannot be granted as to this entire action, Defendant moves this Court for summary adjudication in favor of Defendant, and against Plaintiff, of the following causes of issues or claims: PLAINTIFF’S FIRST CAUSE OF ACTION HAS NO MERIT: Issue 1: Plaintiff’s First Cause of Action for Discrimination in Violation of Government Code §12940 fails as a matter of law as the undisputed material facts evidence that there is no merit to that claim. Issue 2: Plaintiff’s First Cause of Action for Discrimination in Violation of Government Code §12940 fails as a matter of law as the undisputed material facts evidence that Plaintiff's employment was not terminated because of his alleged disability. Issue 3: Plaintiff’ s First Cause of Action for Discrimination in Violation of Government Code §12940 fails as a matter of law as the undisputed material facts evidence that Plaintiff’s employment was not terminated because of his age. Issue 4: Plaintiff’s First Cause of Action for Discrimination in Violation of Government Code §12940 fails as a matter of law as the undisputed material facts evidence that Defendant had a legitimate, non- discriminatory reason for terminating Plaintiff’s employment. 2 NUNEZ V. RESEARCH METAL INDUSTRIES, INC. CASENO. BC671648 DEFENDANT’S NOTICE OF MOTION AND MOTION IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT/ADJUDICATION © 0 9 O N Un BA W N = N N N N N N N N N e m e m e m p m e m e m e d 0 NN A N Ln BR A W D = O VO N N N N R E W N D = O PLAINTIFF’S SECOND CAUSE OF ACTION HAS NO MERIT: Issue 5: Plaintiff’s Second Cause of Action for Retaliation in Violation of Government Code §12940 fails as a matter of law as the undisputed material facts evidence that there is no merit to that claim. Issue 6: Plaintiff’s Second Cause of Action for Retaliation in Violation of Government Code §12940 fails as a matter of law as the undisputed material facts evidence that Defendant had a legitimate, non- discriminatory reason for terminating Plaintiff’s employment. Issue 7: Plaintiff’s Second Cause of Action for Retaliation in Violation of Government Code §12940 fails as a matter of law as the undisputed material facts evidence that Plaintiff never engaged in protected activity. PLAINTIFE’S THIRD CAUSE OF ACTION HAS NO MERIT: Issue 8: Plaintiff’s Third Cause of Action for Failure to Prevent Discrimination and Retaliation in Violation of Government Code §12940 fails as a matter of law as the undisputed material facts evidence that there is no merit to that claim. Issue 9: Plaintiff’s Third Cause of Action for Failure to Prevent Discrimination and Retaliation in Violation of Government Code §12940(k) fails as a matter of law as the undisputed material facts evidence that Plaintiff’s underlying claims of Discrimination fails. Issue 10: Plaintiff’s Third Cause of Action for Failure to Prevent Discrimination and Retaliation in Violation of Government Code §12940(k) fails as a matter of law as the undisputed material facts evidence that Plaintiff’s underlying claims of Retaliation fails. PLAINTIFE’S FOURTH CAUSE OF ACTION HAS NO MERIT: Issue 11: Plaintiff’s Fourth Cause of Action for Failure to Provide Reasonable Accommodations in Violation of Government Code §12940 fails as a matter of law as the undisputed material facts evidence that there is no merit to that claim. 3 NUNEZ V. RESEARCH METAL INDUSTRIES, INC. CASENO. BC671648 DEFENDANT’S NOTICE OF MOTION AND MOTION IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT/ADJUDICATION © 0 9 O N Un BA W N = N N N N N N N N N e m e m e m p m e m e m e d 0 NN A N Ln BR A W D = O VO N N N N R E W N D = O Issue 12: Plaintiff’s Fourth Cause of Action for Failure to Provide Reasonable Accommodations in Violation of Government Code §12940 fails as a matter of law as the undisputed material facts evidence that Plaintiff was not disabled and Defendant was unaware of this non-existent disability. Issue 13: Plaintiff’s Fourth Cause of Action for Failure to Provide Reasonable Accommodations in Violation of Government Code §12940 fails as a matter of law as the undisputed material facts evidence that Plaintiff never requested any accommodation. PLAINTIFF'S FIFTH CAUSE OF ACTION HAS NO MERIT: Issue 14: Plaintiff’s Fifth Cause of Action for Failure to Engage in a Good Faith Interactive Process in Violation of Government Code §12940 fails as a matter of law as the undisputed material facts evidence that there is no merit to that claim. Issue 15: Plaintiff’s Fifth Cause of Action for Failure to Engage in a Good Faith Interactive Process in Violation of Government Code §12940 fails as a matter of law as the undisputed material facts evidence that Plaintiff was not disabled and Defendant was unaware of this non-existent disability. Issue 16: Plaintiff’s Fifth Cause of Action for Failure to Engage in a Good Faith Interactive Process in Violation of Government Code §12940 fails as a matter of law as the undisputed material facts evidence that Plaintiff never requested any accommodation. PLAINTIFE’S SIXTH CAUSE OF ACTION HAS NO MERIT: Issue 17: Plaintiff’s Sixth Cause of Action for Declaratory Judgement fails as a matter of law as the undisputed material facts evidence that there is no merit to that claim. Issue 18: Plaintiff’s Sixth Cause of Action for Declaratory Judgement fails as a matter of law as the undisputed material facts evidence that there is no “currently active” controversy in existence. Il /11 4 NUNEZ V. RESEARCH METAL INDUSTRIES, INC. CASENO. BC671648 DEFENDANT’S NOTICE OF MOTION AND MOTION IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT/ADJUDICATION © 0 9 O N Un BA W N = N N N N N N N N N e m e m e m p m e m e m e d 0 NN A N Ln BR A W D = O VO N N N N R E W N D = O PLAINTIFF’S SEVENTH CAUSE OF ACTION HAS NO MERIT: Issue 19: Plaintiff’s Seventh Cause of Action for Intentional Infliction of Emotional Distress fails as a matter of law as the undisputed material facts evidence that there is no merit to that claim. Issue 20: Plaintiff’s Seventh Cause of Action for Intentional Infliction of Emotional Distress fails as a matter of law as the undisputed material facts evidence that Defendant’s conduct was, as a matter of law, not “so extreme and outrageous as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” PLAINTIFF’S EIGHTH CAUSE OF ACTION HAS NO MERIT: Issue 21: Plaintiff’s Eighth Cause of Action for Violation of Civil Code §43 fails as a matter of law as the undisputed material facts evidence that there is no merit to that claim. Issue 22: Plaintiff’s Eighth Cause of Action for Violation of Civil Code §43 fails as a matter of law as the undisputed material facts evidence that Plaintiff never made a complaint to anyone about any alleged unsafe working conditions or work practices. Issue 23: Plaintiff’s Eighth Cause of Action for Violation of Civil Code §43 fails as a matter of law as the undisputed material facts evidence that Plaintiff was aware it was his duty to report any injury immediately to his supervisor. PLAINTIFF’S NINTH CAUSE OF ACTION HAS NO MERIT: Issue 24: Plaintiff’s Ninth Cause of Action for Violation of Civil Code §51.7 fails as a matter of law as the undisputed material facts evidence that there is no merit to that claim. Issue 25: Plaintiff’s Ninth Cause of Action for Violation of Civil Code §51.7 fails as a matter of law as the undisputed material facts evidence that Defendant threatened or committed violence against Plaintiff. 111 /11 5 NUNEZ V. RESEARCH METAL INDUSTRIES, INC. CASENO. BC671648 DEFENDANT’S NOTICE OF MOTION AND MOTION IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT/ADJUDICATION © 0 9 O N Un BA W N = N N N N N N N N N e m e m e m p m e m e m e d 0 NN A N Ln BR A W D = O VO N N N N R E W N D = O PLAINTIFF’S TENTH CAUSE OF ACTION HAS NO MERIT: Issue 26: Plaintiff’s Tenth Cause of Action for Violation of Civil Code §52.1 fails as a matter of law as the undisputed material facts evidence that there is no merit to that claim. Issue 27: Plaintiff’s Tenth Cause of Action for Violation of Civil Code §52.1 fails as a matter of law as the undisputed material facts evidence that Plaintiff was not threatened, intimidated or coerced by Defendant in any manner whatsoever. PLAINTIFF'S ELEVENTH CAUSE OF ACTION HAS NO MERIT: Issue 28: Plaintiff’s Eleventh Cause of Action for Violation of Labor Code §§6310 & 6312 fails as a matter of law as the undisputed material facts evidence that there is no merit to that claim. Issue 29: Plaintiff’s Eleventh Cause of Action for Violation of Labor Code §86310 & 6312 fails as a matter of law as the undisputed material facts evidence that Plaintiff never made a complaint to anyone about any alleged unsafe working conditions or work practices. PLAINTIFF'S TWELFTH CAUSE OF ACTION HAS NO MERIT: Issue 30: Plaintiff’s Plaintiff’s Twelfth Cause of Action for Wrongful Termination in Violation of Public Policy fails as a matter of law as the undisputed material facts evidence that there is no merit to that claim. Issue 31: Plaintiff’s Twelfth Cause of Action for Wrongful Termination in Violation of Public Policy fails as a matter of law as the undisputed material facts evidence that Plaintiff’s underlying claims fail. /11 111 /11 Il /11 6 NUNEZ V. RESEARCH METAL INDUSTRIES, INC. CASENO. BC671648 DEFENDANT’S NOTICE OF MOTION AND MOTION IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT/ADJUDICATION © 0 9 O N Un BA W N = N N N N N N N N N e m e m e m p m e m e m e d 0 NN A N Ln BR A W D = O VO N N N N R E W N D = O PRAYER FOR PUNITIVE DAMAGES Issue 32: Plaintiff’s Prayer for Punitive Damages fails as a matter of law as the undisputed material facts evidence that Plaintiff cannot demonstrate that engaged in oppression, malice or fraud towards him. DATED: January 10, 2019 NUNEZ V. RESEARCH METAL INDUSTRIES, INC. an officer, director or managing agent of Defendant LAW OFFICE OF LAWRENCE J. LENNEMANN By: LAWRENCE J. LENNEMANN Attorneys for Defendant RESEARCH METAL INDUSTRIES, INC. 7 CASE No. BC671648 DEFENDANT’S NOTICE OF MOTION AND MOTION IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT/ADJUDICATION © 0 9 O N Un BA W N = N N N N N N N N N e m e m e m p m e m e m e d 0 NN A N Ln BR A W D = O VO N N N N R E W N D = O TABLE OF CONTENTS MEMORANDUM OF POINTS AND AUTHORITIES .......... iii. 13 1. INTRODUCTION Looe eee eee ee eee eee eee 13 2. FACTUAL BACKGROUND eee eee 14 A. Defendant and its Owner, Harish Brahmbhatt . ................................ 14 B. Plaintiff, AIfonso NUNEZ . ...... eee eee eee eee een 14 C. On August 14, 2015, Plaintiff Admittedly Assaulted A Co-Worker. ............... 14 D. In 2009, Prior to Plaintiff’s Admitted August 2015 Assault of Co-Worker Leanos, Plaintiff Assaulted Another Co-Worker, James Bovey. Following this Event, Plaintiff Received a Written Warning, a Suspension and a Warning of Potential Termination. ........... 15 E. Shortly After Plaintiff’s Admitted August 2015 Assault of Co-Worker Leanos, Plaintiff was Terminated for His Now-Repeated Act of Aggression .......................... 16 E. Plaintiff Admittedly Only Wanted to Return to Work at Defendant if Defendant Agreed to Pay Plaintiff Contrary to Law... 17 3: LEGAL ARGUMENT ; :: consacscsnnnssssunmessss samesss sasssif Sauesiss naasss 17 A. As a Matter of Law, Plaintiff’s First Cause of Action for Discrimination [Disability & Age] Bails : :cnmoms sss nmmng ass aamsas ss omshgdssnuabaddis sasha ss baited snus: 18 I. Plaintiff Cannot Prove a Prima Facie Case of Disability Discrimination ...... 19 2. Plaintiff Cannot Prove a Prima Facie Case of Age Discrimination ........... 19 3. Plaintiff Cannot Prove that He Was Terminated “Because of” His Age or [Non- Existent] Disability ......... 20 4, Even If Plaintiff Proved His Prima Facie Case (Which He Cannot), Defendant Clearly Acted with Legitimate, Nondiscriminatory Reasons ................ 20 5. Plaintiff has Zero Evidence of Pretext ................................. 20 B. As a Matter of Law, Plaintiff’s Second Cause of Action for Retaliation Fails ........ 22 C. As a Matter of Law, Plaintiff’s Third Cause of Action for Failure to Prevent Discrimination and Retaliation Fails ......... 23 8 NUNEZ V. RESEARCH METAL INDUSTRIES, INC. CASENoO. BC671648 DEFENDANT’S NOTICE OF MOTION AND MOTION IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT/ADJUDICATION © 0 9 O N Un BA W N = N N N N N N N N N e m e m e m p m e m e m e d 0 NN A N Ln BR A W D = O VO N N N N R E W N D = O As a Matter of Law, Plaintiff’s Fourth and Fifth Causes of Action for “Failure to Provide Reasonable Accommodations” and “Failure to Engage in a Good Faith Interactive Process” Fail «e 24 As a Matter of Law, Plaintiff’s Sixth Cause of Action for Declaratory Judgment Fails . 25 As a Matter of Law, Plaintiff’s Seventh Cause of Action for Intentional Infliction of Emotional Distress Fails... ... 26 As a Matter of Law, Plaintiff’s Eighth Cause of Action for Violation of Civil Code § 43 Fails ee 27 As a Matter of Law, Plaintiff’s Ninth Cause of Action for Violation of Civil Code § 51.7 Fails «oo 27 As a Matter of Law, Plaintiff’s Tenth Cause of Action for Violation of Civil Code § 52.1 Fails «o 28 As a Matter of Law, Plaintiff’s Eleventh Cause of Action for Violation of Labor Code §§ 6310 & 6312 Fails ...... oo 28 As a Matter of Law, Plaintiff’s Twelfth Cause of Action for Wrongful Termination in Violation of Public Policy Fails .......... 29 Plaintiff Cannot Prove Oppression, Fraud or Malice to Support an Award of Punitive Damages . . «ooo 30 CONCLUSION: i 5056 «5 5 somsing 255 somata sssomaaes somes ss naaes sasuusdss nnn: 30 9 NUNEZ V. RESEARCH METAL INDUSTRIES, INC. CASE NO. BC671648 DEFENDANT’S NOTICE OF MOTION AND MOTION IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT/ADJUDICATION © 0 9 O N Un BA W N = N N N N N N N N N e m e m e m p m e m e m e d 0 NN A N Ln BR A W D = O VO N N N N R E W N D = O TABLE OF AUTHORITIES CASES Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826 ......... iii 17 Alcorn v. Anbro Eng., Inc., (1970) 2 Cal.3d 493 . . 26 Alejandro v. ST Micro Electronics, Inc., (N.D. CA 2016) 178 F.Supp.3d 850 .................... 24 Argo v. Blue Cross & Blue Shield of Kansas, Inc., (10th Cir. 2006) 452 F.3d 1193 ................ 23 Board of Trustees Keen State College v. Sweeney, (1978) 439 U.S. 24 ......................... 20 Buscemi v. McDonnell Douglas Corp., (9th Cir. 1984) 736 F.2d 1348 ......................... 26 Caldwell v. Paramount Unified School District, (1995) 41 Cal. App.4th 189 ..................... 18 D. Cummins Corp. v. U.S. Fid. & Guar. Co., (2016) 201 Cal. Rptr. 3d 585 ...................... 25 Ellis v. U.S. Security Assocs., (2014) 224 Cal. App.4th 1213... ia. 23 Fisher v. Sup.Ct. (Alpha Therapeutic Corp.), (1986) 177 Cal. App.3d 779 ...... ci... 24 Flait v. North American Watch Corp., (1992) 3 Cal. App.4th467 . .......................... 22,23 Gibbs v. Consolidated Services, (2003) 111 Cal. App.4th 794... .. i. 18 Green v. State, (2007) 42 Cal. 4th 254 . . ee 19 Guz v. Bechtel Nat'l, Inc., (2000) 24 Cal.4th 317... ee eee 18, 21 Hersant v. Department of Social Services, (1997) 57 Cal. App.4th 977 ......... ...... . ...... 21 Holmes v. General Dynamics Corp. (1993) 17 Cal. App.4th 1418 .......... i... 29 Hiighes v. Pair, (2009) 46 Cal Ath 1035 .. cusses sommes snmsnasssamsnesssomansasssaussss 26 Hutton v. Fidelity Nat'l Title Co., (2013) 213 Cal. App.4th486 .............. . . . . io.. 13 LH. by and through Hunter v. Oakland School for Arts, N.D.Cal.2017, 234 F.Supp.3d 987 ......... 27 Jacobs v. Coldwell Banker Residential Brokerage Co., (2017) 14 Cal.App.5th438 ............... 13 Jensen v. Wells Fargo Bank, (2000) 85 Cal. App.4th 245 ..... iin 24 Kelley v. Corr. Corp of Am., (E.D.CA 2010) 750 F.Supp.2d 1132 ....... iii. 22 NUNEZ V. RESEARCH METAL INDUSTRIES, INC. 0 CASENoO. BC671648 DEFENDANT’S NOTICE OF MOTION AND MOTION IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT/ADJUDICATION © 0 9 O N Un BA W N = N N N N N N N N N e m e m e m p m e m e m e d 0 NN A N Ln BR A W D = O VO N N N N R E W N D = O Kelly v. Stamps.com, Inc., (2005) 135 Cal. App.4th 1088 ........ iii .. 18 Kerr v. Rose, (1990) 216 Cal. App.3d 1551 o.oo eee 21 King v. United Parcel Service, Inc., (2007) 152 Cal. App.4th426 .......... i... 24 Lawler v. Montblanc North America, LLC, (9th Cir. 2013) 704 F.3d 1235 ...................... 26 Lewis v. City of Benicia, (2014) 224 Cal. App.4th 1519 ...... iii 22 McRue v. Department of Corrections and Rehabilitation, (2006) 142 Cal. App.4th 377 ............ 21 Meyer v. Sprint Spectrum L.P. (2009) 45 Cal.4th 634 . ..... ieee. 25 McDonnell Douglas v. xxxx, (XXXX) XXXX «tte uttemnteeet eee ee ete eee eee eee eanes 22 Morgan v. Regents of the University of California, (2000) 88 Cal.App.4th 52 .................... 21 Otay Land Co. v. Royal Indem. Co., (2008) 169 Cal. App.4th 556 ........... .... .. . ..o... 25 Passantino v. Johnson & Johnson Consumer Products, Inc. (9th Cir. 2000) 212 F.3d 493 .......... 22 Reid v. Google, Inc., (2010) 50 Cal.4th 512... eee eee 21 Scalia v. County of Kern, E.D.Cal.2018, 308 F.Supp.3d 1064 ........... iii. 28 Scotch v. Art Institute of Cal-Orange County, Inc., (2009) 173 Cal. App.4th986 .................. 19 Shoemaker v. Myers, (1990) 52 Cal.3d 1 ..... oo i eee eee eee 26 Stegall v. Citadel Broadcasting Co. (9th Cir. 2003) 350 F.3d 1061 ............................ 18 Steward v. Truck Insurance Exchange, (1993) 17 Cal. App.4th468 .............. .............. 29 St. Mary’s Honor Center v. Hicks, (1993) 509 U.S. 502 . .... ieee 18 Turner v. Anheuser-Busch, Inc., (1994) 7 Cal.4th 1238... iii. 29 Trujillo v. North County Transit Dist., (1998) 63 Cal. App.4th280 ............................ 23 Unt v. Aerospace Corp., (Oth Cir. 1985) 765 F.2d 1440 ........ iii iii 23 Vasquez v. Franklin Mgmt. Real Estate Fund, Inc. (2013) 222 Cal. App.4th 819 .................. 26 Yanowitz v. L'Oreal USA, Inc., (2005) 36 Cal.4th 1028 ........ i iin.. 22 NUNEZ V. RESEARCH METAL INDUSTRIES, INC. ! CASENoO. BC671648 DEFENDANT’S NOTICE OF MOTION AND MOTION IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT/ADJUDICATION © 0 9 O N Un BA W N = N N N N N N N N N e m e m e m p m e m e m e d 0 NN A N Ln BR A W D = O VO N N N N R E W N D = O STATUTES AND REGULATIONS Section 437c of the Code of Civil Procedure .............. . . iii 17 Section 1060 of the Code of Civil Procedure .............. iii. 25 Section 1061 of the Code of Civil Procedure .............. iii. 25 Section 3294- of the. Code of CIVIl ProcetliFe «sos «cs sussss ss ssmssssssnsnss s u s essnannss 29 Section 43 of the Civil Code... ...... eee 27 Section 51.7 of the Civil Code ........ 27 Section 52.1 of the Civil Code . ...... eee 28 Section 12940 of the Government Code ................. ... ..... . .... . ..... 19, 22, 23,24 Section 6310 of the Labor Code . ......... eee 28 Section 6312 of the Labor Code . ......... 28 2 Cal.C.Re@s. § 11068(Q) . «vot vette ee eee eee ee ee eee 23 ZCAlIC. Regs. § 11069(A) «vw vss suman iss umn s mamusiss aunnsiisanussisauues iss one 23 TREATIES The Rutter Group, Civil Procedure Before Trial, §10.1 ........ i iin.. 17 The Rutter Group, Employment Litigation, §7:672 ...... eee 23 The Rutter Group, Employment Litigation, §10.481.2 ..... iin. 23 JURY INSTRUCTIONS BAIL 12.74 26 CACT 1600 . «oot ee ee ee ee 26 CARCI TEM. 5: smminn sss ammms sss amsme sss uns ssshafssd sss bumbssf5a0fudsss GERme LF 5 5A 3 26 CACT 2430 «ote ee 29 NUNEZ V. RESEARCH METAL INDUSTRIES, INC. 2 CASENoO. BC671648 DEFENDANT’S NOTICE OF MOTION AND MOTION IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT/ADJUDICATION © 0 9 O N Un BA W N = N N N N N N N N N e m e m e m p m e m e m e d 0 NN A N Ln BR A W D = O VO N N N N R E W N D = O MEMORANDUM OF POINTS AND AUTHORITIES 1. INTRODUCTION. These material facts are undisputed: (1) On August 17,2015, Plaintiff Alfonso Nunez’s (“Plaintiff”) employment with Defendant (“Defendant”) was justifiably terminated for his admitted August 2015 assault of a co-worker; and (2) this August 2015 assault of a co-worker occurred after Plaintiff previously was suspended for admittedly assaulting another co-worker, following which Plaintiff received and executed a written warning which concluded with “Termination will occur should an action such as this occur again.” Undeterred by the undisputed true facts, Plaintiff filed a Complaint’ that contains twelve purported Causes of Action’. When Plaintiff’s Deposition testimony entirely failed to support the claims made in his Complaint (and, similarly, Plaintiff’s numerous admissions repeatedly evidenced the false nature of his claims), Plaintiff’s counsel responded: “The complaint is unverified. So it doesn’t matter what it says>.” Defendant begs to differ as “(t)he pleadings play a key role in a summary judgment motion.” For the reasons set forth herein, Defendant’s Motion should be granted in its entirety. ! Plaintiff’s Deposition testimony was provided pursuant to a Spanish Interpreter and Plaintiff was afforded the customary 30 days following his provision of each Volume to make any necessary changes or revisions. Plaintiff made no changes or revisions. Also, Plaintiff testified he never reviewed his Complaint filed on his behalf. [Exh. “A”, {{] 3, 4, Exh. “17, 46:11-15; 70:2-9.] a Plaintiff’s Complaint contains purported claims for: (1) Discrimination in Violation of Gov’t Code § 12940; (2) Retaliation in Violation of Gov’t Code § 12940; (3) Failure to Prevent Discrimination and Retaliation in Violation of Gov’t Code §12940(k); (4) Failure to Provide Reasonable Accommodations in Violation of Gov’t Code § 12940; (5) Failure to Engage in a Good Faith Interactive Process in Violation of Gov’t Code § 12940; (6) For Declaratory Judgement; (7) Intentional Infliction of Emotional Distress; (8) Violation of California Civil Code §43; (9) Violation of California Civil Code §51.7; (10) Violation of California Civil Code §52.1; (11) Violation of California Labor Code §§6310 & 6312; and (12) Wrongful Termination in Violation of Public Policy. [Req. for Judicial Notice, Exh. “2”.] } Exh. “A”, { 5; Exh. “3”. 4 Hutton v. Fidelity Nat'l Title Co., (2013) 213 Cal. App.4th 486, 493; Jacobs v. Coldwell Banker Residential Brokerage Co., (2017) 14 Cal.App.5th 438, 444. 13 NUNEZ V. RESEARCH METAL INDUSTRIES, INC. CASENO. BC671648 DEFENDANT’S NOTICE OF MOTION AND MOTION IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT/ADJUDICATION © 0 9 O N Un BA W N = N N N N N N N N N e m e m e m p m e m e m e d 0 NN A N Ln BR A W D = O VO N N N N R E W N D = O 2. FACTUAL BACKGROUND. A. Defendant and its Owner, Harish Brahmbhatt. Founded in 1962, Defendant provides services and products for aerospace, aircraft, missile and commercial industries. Defendant services include prototypes and tooling as well as long production runs, all made to exact specifications and requirements. At the time of Plaintiff’s termination in 2015, Defendant had approximately 50 employees. Since 2000, Defendant has hired over 30 employees over the age of 40. In the early 1990s, not long after immigrating to the United States from Africa (via Canada), Harish Brahmbhatt began his career at Defendant washing machine parts. After much hard work, Mr. Brahmbhatt was eventually promoted to Defendant’s General Manager. Then, in 1998, after spending considerable time and energy learning the ins and outs of the manufacturing business, Mr. Brahmbhatt, with money borrowed from family and friends, was able to purchase Defendant. For the past twenty years, Mr. Brahmbhatt has continued as Defendant’s business owner. B. Plaintiff, Alfonso Nunez. Plaintiff worked for Defendant for approximately 26 years. [Undisputed Material Fact (“UMF”) 1.] C. On August 14, 2015, Plaintiff Admittedly Assaulted A Co-Worker. Pursuant to Plaintiff’s admitted deposition testimony, under oath, the following material facts are undisputed: (1) On or about the morning of Friday, August 14, 2105, Plaintiff was involved in incident with co- worker Salvador Leanos (“Leanos”) [UMF 2]; (2) While Plaintiff put his hand on Mr. Leanos (Plaintiff testified that he “touched” Mr. Leanos and pushed him with his hand during a “confrontation”), Mr. Leanos never put his hands on Plaintiff [UMF 3]; (3) Plaintiff putting his hand on Mr. Leanos was a deviation from Defendant’s Standards of Conduct [UMF 4]; (4) The morning of the incident, Plaintiff was called into the office, was told to go home and was told that he was being suspended for that day [UMF 5]; 14 NUNEZ V. RESEARCH METAL INDUSTRIES, INC. CASENO. BC671648 DEFENDANT’S NOTICE OF MOTION AND MOTION IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT/ADJUDICATION © 0 9 O N Un BA W N = N N N N N N N N N e m e m e m p m e m e m e d 0 NN A N Ln BR A W D = O VO N N N N R E W N D = O (5) Plaintiff was suspended “because of the altercation [he] got into with Mr. Leanos” [UMF 6]; (6) Mr. Leanos was also suspended [UMF 7]; and (7) Plaintiff admittedly “should have been suspended” “[b]ecause of the altercation.” [UMF 8]. D. In 2009, Prior to Plaintiff’s Admitted August 2015 Assault of Co-Worker Leanos, Plaintiff Assaulted Another Co-Worker, James Bovey. Following this Event, Plaintiff Received a Written Warning, a Suspension and a Warning of Potential Termination. Pursuant to Plaintiff’s admitted deposition testimony, under oath, the following material facts are undisputed: (1) On January 22, 2009, Plaintiff purposefully threw an object that hit co-worker, James Bovey, in the back [UFM 9]; (2) When Plaintiff threw the object at Mr. Bovey, Mr. Bovey was working with a “dangerous” grinder machine [UMF 10]; (3) Plaintiff’s throwing of an object at Mr. Bovey “wasn’t a safe thing to do” [UFM 11]; (4) Immediately following the incident, Plaintiff was issued a written warning - which he signed after it was explained to him in Spanish [UMF 12]; The written warning stated as follows: “Written Warning This is a written warning issued to Alfonso Nunez. As an RMI employee you are expected to model and follow all policies set-forth. You will be held accountable for violating this policy. Incident: On January 22", 2009 an incident happened between Alfonso Nunez and James Bovey. Alfonso threw a part at James striking him in the back and causing him distress and he immediately left his work site, checked out, and went home. Alfonso was immediately brought to the administrators office with Hene Barat, Randy Schaffer and Martha Aguiar present and acting as translator into Spanish. Alfonso was informed this is unsafe activity and was given this written warning. He was immediately dismissed to home and told he may return to work on Monday the January 26, 2009 if he agrees to NEVER partake in this type of action again. He was counselled [sic] on the risk and severity and potential of injury to James Bovey. He was counselled [sic] on safety in the plant. Termination will occur should an action such as this occur again.” [UMF 13.] 15 NUNEZ V. RESEARCH METAL INDUSTRIES, INC. CASENO. BC671648 DEFENDANT’S NOTICE OF MOTION AND MOTION IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT/ADJUDICATION © 0 9 O N Un BA W N = N N N N N N N N N e m e m e m p m e m e m e d 0 NN A N Ln BR A W D = O VO N N N N R E W N D = O Defendant’s Employee Handbook (“Standards of Conduct”) provides, in pertinent part: (1) “if an individual's behavior interferes with the orderly and efficient operation of a department, corrective disciplinary measures will be taken”; (2) “disciplinary actions may include . . . discharge”; and 99 CC (3) “physical harassment . . . or disrespect towards fellow employees action, up to and including discharge.” [UMF 14.] may result in disciplinary Pursuant to Plaintiff’s admitted deposition testimony, under oath, the following material facts are undisputed: (1) Plaintiff was aware that, as an employee, Plaintiff had to abide by the Standards of Conduct in order to maintain his employment with Defendant [UMF 15]; (2) Plaintiff was aware that throwing a piece of wood at an employee is a deviation from Defendant’s Standards of Conduct [UMF 16]; (3) Plaintiff “accepted the suspension for one day” for his conduct [UMF 17]; (4) Plaintiff was aware that, if he assaulted an employee again (or otherwise violated Defendant’s rules), he could be terminated [UMF 18]; and (5) Plaintiff was aware that his agreement to refrain from such conduct was a condition to him being allowed to return to work following his suspension [UMF 19]. E. Shortly After Plaintiff’s Admitted August 2015 Assault of Co-Worker Leanos, Plaintiff was Terminated for His Now-Repeated Act of Aggression. Following Plaintiff’s admitted August 2015 assault of a co-worker, Plaintiff was told to return to work on the following Monday. [UMF 20.] Then, on Monday, August 17, 2015, when Plaintiff returned to work from his suspension, Plaintiff was told that he was terminated as a result of the incident with Mr. Leanos. [UMF 21.] Plaintiff admitted that he was told the reason he was terminated: “When Salvador told me, ‘We’re gonna let you go,” he and I both said - - he said, ‘because of the altercation you had with Salvador Leanos,” and he showed me the video there that they have when I touched Salvador, and that was all. That’s why they fired me.” [UMF 22.] 16 NUNEZ V. RESEARCH METAL INDUSTRIES, INC. CASENO. BC671648 DEFENDANT’S NOTICE OF MOTION AND MOTION IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT/ADJUDICATION © 0 9 O N Un BA W N = N N N N N N N N N e m e m e m p m e m e m e d 0 NN A N Ln BR A W D = O VO N N N N R E W N D = O F. Plaintiff Admittedly Only Wanted to Return to Work at Defendant if Defendant Agreed to Pay Plaintiff Contrary to Law. Plaintiff testified that, at some unknown time, another co-worker told Plaintiff that Mr. Brahmbhatt had asked if Plaintiff had a desire to return to work. Assuming for purposes of this Motion only that that statement is true, Plaintiff also admitted that he declined the supposed offer because Defendant would not pay him cash under the table: “‘I don’t think so because you know already that I am retired,” but I said to him, ‘Ask him if he’ll pay me in cash, and then it’s possible that I would go.”” [UMF 23.] Plaintiff testified that Plaintiff: “wanted to get paid in cash because that way [he would not] have to report that income” and “because social security won’t allow [him] to work more than it allows.” [UMF 23.] In sum, Plaintiff’s claims are entirely without evidentiary support and should be dismissed as a matter of law. 3. LEGAL ARGUMENT. A court must grant summary judgment or summary adjudication where a plaintiff cannot establish an essential element of a cause of action or where a complete defense is shown. C.C.P. §437(c)(0)(1)-(2). Summary judgment and summary adjudication motions enable a court to determine that the opposing party's pleadings lack evidentiary support and to limit or terminate the action accordingly: “The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843; The Rutter Group, California Practice Guide: Civil Procedure Before Trial, §10.1. Defendant submits that, pursuant to Plaintiff’s numerous admissions under oath - which entirely fail to support his Complaint - this Motion should be granted in its entirety. 17 NUNEZ V. RESEARCH METAL INDUSTRIES, INC. CASENO. BC671648 DEFENDANT’S NOTICE OF MOTION AND MOTION IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT/ADJUDICATION © 0 9 O N Un BA W N = N N N N N N N N N e m e m e m p m e m e m e d 0 NN A N Ln BR A W D = O VO N N N N R E W N D = O A. As a Matter of Law, Plaintiff’s First Cause of Action for Discrimination [Disability & Age] Fails. With regard to both age and discrimination claims, California courts utilize the same McDonnell Douglas burden-shifting analysis in FEHA cases as used in employment discrimination cases generally: “California has adopted the three-stage burden-shifting test established by the United States Supreme Court for trying claims of discrimination.” Guz v. Bechtel Nat'l, Inc., (2000) 24 Cal.4th 317, 354; Stegall v. Citadel Broadcasting Co. (9th Cir. 2003) 350 F.3d 1061, 1065. The ultimate burden of proof always lies with Plaintiff. Sz. Mary’s Honor Center v. Hicks, (1993) 509 U.S. 502, 511. First, to establish a prima facie case of discrimination, Plaintiff must demonstrate: (1) he is a member of a protected class; (2) he was qualified for his job; (3) he was subjected to an adverse employment action; and (4) his termination was “because of>” his membership in the protected class. Guz v. Bechtel National, Inc., (2000) 24 Cal.4th 317, 366. Plaintiff’s evidence must be sufficient as a matter of law to support a finding of intentional discrimination. Guz v. Bechtel Nat'l, Inc., (2000) 24 Cal.4th 317, 353-354. Secondly, if Plaintiff can show a prima facie case of discrimination, the burden shifts to Defendant to articulate a legitimate, nondiscriminatory reason for the adverse employment action. Finally, Plaintiff must show that Defendant’s articulated reasons are a “pretext.” Caldwell v. Paramount Unified School District, (1995) 41 Cal. App.4th 189, 202; Gibbs v. Consolidated Services, (2003) 111 Cal.App.4th 794, 799. 111 111 111 ? Plaintiff must produce substantial “evidence of [a] discriminatory motive.” Kelly v. Stamps.com, Inc., (2005) 135 Cal.App.4th 1088, 1101. 18 NUNEZ V. RESEARCH METAL INDUSTRIES, INC. CASENO. BC671648 DEFENDANT’S NOTICE OF MOTION AND MOTION IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT/ADJUDICATION © 0 9 O N Un BA W N = N N N N N N N N N e m e m e m p m e m e m e d 0 NN A N Ln BR A W D = O VO N N N N R E W N D = O 1. Plaintiff Cannot Prove a Prima Facie Case of Disability Discrimination. Plaintiff bears the burden of proving that he is a “qualified individual with a disability.” Government Code, §12940(a)(1); Green v. State, (2007) 42 Cal.4th 254, 261; Scotch v. Art Institute of Cal-Orange County, Inc., (2009) 173 Cal.App.4th 986, 1002. Pursuant to Plaintiff’s admitted deposition testimony, under oath, the following material facts are undisputed: Q: So you don’t believe that you were terminated because of your disability, is that correct? [Objection by Plaintiff’s counsel. ] A: Disability, no, because I am well. Tsay I am.” [UMF 24.] Additionally, pursuant to Plaintiff’s admitted deposition testimony, under oath, the following material facts are undisputed: (1) Plaintiff is not currently/presently disabled and that at no time, has he been disabled: “I’ve never been disabled” and “Incapacitated, no. I'm fine” and “Yes, I said that I’ve never been disabled” [UMEF 25]; (2) Plaintiff never told anyone at Defendant that he was disabled [UMF 26]; (3) Plaintiff never told his subsequent employer (Peterson Spinning) that he was disabled and Plaintiff never requested any type of accommodation or adjustment to his duties at his subsequent employer [UMF 27]; and (4) According to Plaintiff, no doctor has ever diagnosed him as being disabled [UMF 28.] 2 Plaintiff Cannot Prove a Prima Facie Case of Age Discrimination. Pursuant to Plaintiff’s admitted deposition testimony, under oath, the following material facts are undisputed: (1) Defendant never treated him differently because of his age [UMF 29]; (2) Defendant “never had the intention to get rid of the older [workers] and leave the younger ones” [UMF 30]; (3) Defendant did not “routinely terminate[] the older employees with reasons that are insufficient for termination” [UMF 31]; 19 NUNEZ V. RESEARCH METAL INDUSTRIES, INC. CASENO. BC671648 DEFENDANT’S NOTICE OF MOTION AND MOTION IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT/ADJUDICATION © 0 9 O N Un BA W N = N N N N N N N N N e m e m e m p m e m e m e d 0 NN A N Ln BR A W D = O VO N N N N R E W N D = O (4) Plaintiff has “no basis” for his statement under penalty of perjury in his discovery Responses that “(e)mployees that are in their 50s and 60s were terminated, wherein younger employees would not be terminated when they committed much worse infractions” [UMF 32]; (5) Plaintiff is not aware that anyone was terminated from Defendant because of their age [UMF 33]; (6) Plaintiff does not believe that anyone at Defendant was harassed due to their age [UMF 34]; and (7) Plaintiff does not believe that anyone at Defendant was retaliated against because of their age. [UMF 35.] 3. Plaintiff Cannot Prove that He Was Terminated “Because of” His Age or [Non-Existent] Disability. Plaintiff cannot show that he was terminated “because of” his age or [non-existent] disability. As set forth herein, it is undisputed that Plaintiff was terminated for legitimate nondiscriminatory reasons (i.e., Plaintiff’s admitted physical altercation with a co-employee). [UMF 1-42.] 4. Even If Plaintiff Proved His Prima Facie Case (Which He Cannot), Defendant Clearly Acted with Legitimate, Nondiscriminatory Reasons. Defendant meets it burden “if [it] simply explains what [it] has done or produces evidence of legitimate nondiscriminatory reasons.” Board of Trustees Keen State College v. Sweeney, (1978) 439 U.S. 24, 25. As set forth above, the undisputed material facts evidence that Defendant terminated Plaintiff for legitimate nondiscriminatory reasons (i.e., Plaintiff’s admitted physical altercation with a co-employee). 5. Plaintiff has Zero Evidence of Pretext. The entirety of Plaintiff’s factual support for his age claim rests on Plaintiff’s belief that “(i)t’s possible” he was terminated because of his age. [UMF 36.] This “little bit” of “belief” was formed on “nothing else” other than a co-worker, six months to two years before Plaintiff’s termination, commenting that Mr. Brahmbhatt had said that Plaintiff and two other employees (Angel Ochoa and Jose Teos) were “really old”: “You, Teos and Alfonso are the oldest ones. One day, I'm gonna fire you guys.“ [UMF 37.] 20 NUNEZ V. RESEARCH METAL INDUSTRIES, INC. CASENO. BC671648 DEFENDANT’S NOTICE OF MOTION AND MOTION IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT/ADJUDICATION © 0 9 O N Un BA W N = N N N N N N N N N e m e m e m p m e m e m e d 0 NN A N Ln BR A W D = O VO N N N N R E W N D = O Mr. Ochoa, at age 63 [DOB 2/18/55] is still employed by Defendant and Mr. Teos retired on or about May 30, 2017 (at age 65). [UMF 38.] Additionally, when Mr. Ochoa’ supposedly told Plaintiff this, Plaintiff was not concerned about this supposed comment and never complained to anyone. [UMF 39.] Clearly, Plaintiff cannot demonstrate “weakness, implausibilities, inconsistencies, incoherencies, or contradictions in the [Defendant’s] proffered legitimate reasons for its actions that a reasonable factfinder could rationally find them ‘unworthy of credence,’ [citation], and hence, ‘infer that [Defendant] did not act forthe... asserted] non discriminatory reasons.’” McRue v. Department of Corrections and Rehabilitation, (2006) 142 Cal.App.4th 377, 388, quoting Morgan v. Regents of the University of California, (2000) 88 Cal.App.4th 52, 75. The law is clear that a plaintiff's “suspicions of improper motives ... primarily based on conjecture and speculation” are not sufficient to raise a triable issue of fact to withstand summary judgment. Kerr v. Rose, (1990) 216 Cal.App.3d 1551, 1564, 604; Reid v. Google, Inc., (2010) 50 Cal.4th 512, 541 - [stray remarks do not have strong probative value when viewed in isolation]. Simply, in order to carry his burden to prove “pretext”: (1) the probative value of Plaintiff’s evidence must be strong enough to overcome any innocent reasons given by the employer for the action taken; (2) the stronger the employer's showing of innocent reasons for its actions, the greater circumstantial evidence of discriminatory motive is required; and (3) evidence too weak to support a rational inference of discriminatory intent cannot support a finding of discrimination or prevent summary judgment for the employer. Guz v. Bechtel Nat'l, Inc., supra, 24 Cal.4th at 361-362, 367. Here, as a matter of law, Plaintiff “possible” “little bit” of “belief” is insufficient to meet his burden of the requisite “substantial evidence” and summary judgment is proper as a matter of law. 6 Mr. Ochoa denied making any such statement (or even ever discussing age or termination with Plaintiff). Exh. “5” [Ochoa Depo., 12:5-6; 29:20-30:5; 30:20-25.] 7 Hersant v. Department of Social Services, (1997) 57 Cal. App.4th 977, 1004-05. 21 NUNEZ V. RESEARCH METAL INDUSTRIES, INC. CASENO. BC671648 DEFENDANT’S NOTICE OF MOTION AND MOTION IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT/ADJUDICATION © 0 9 O N Un BA W N = N N N N N N N N N e m e m e m p m e m e m e d 0 NN A N Ln BR A W D = O VO N N N N R E W N D = O B. As a Matter of Law, Plaintiff’s Second Cause of Action for Retaliation Fails. Section 12940(h) of the Government Code prohibits an employer from retaliating against an employee because the employee opposed practices the FEHA prohibits or filed a complaint, testified or assisted in any FEHA proceeding. To establish a prima facie case, Plaintiff must show that: (1) he engaged in a protected activity; (2) Defendant subjected Plaintiff to an adverse employment action; and (3) a causal link exists between the two. Passantino v. Johnson & Johnson Consumer Products, Inc. (9th Cir. 2000) 212 F.3d 493, 506; Yanowitz v. L'Oreal USA, Inc., (2005) 36 Cal.4th 1028, 1044; Lewis v. City of Benicia, (2014) 224 Cal.App.4th 1519, 1533. Plaintiff’s Complaint alleges that he engaged in “protected activity” of “protesting Defendants’ discriminatory conduct towards Plaintiff”“reporting his disabilities and engagement in protected activities”.* However, pursuant to Plaintiff’s admitted deposition testimony, under oath, the following material facts are undisputed: (1) Plaintiff, at no time, has ever been disabled; (2) no doctor has ever diagnosed Plaintiff as disabled; and (3) Plaintiff never told anyone at Defendant (or at his current employer) that he was disabled’. [UDM 24-28.] As with discrimination claims, the McDonnell Douglas burden-shifting framework also applies in retaliation. Flait v. North American Watch Corp. (1992) 3 Cal.App.4th 467, 475-476, 4 Cal .Rptr.2d 522, 527-528. 8 Request for Judicial Notice, Exh. “2”, Plaintiff’s Complaint, 9:6-8. ’ Importantly, the California Supreme Court has declared that an employee’s unarticulated belief that an employer is engaging in discrimination will not suffice to establish protected conduct for the purposes of establishing a prima facie case of retaliation. Yanowitz v. L'Oreal USA, Inc., (2005) 36 Cal.4th 1028, 1046. In fact, even if Plaintiff was disabled (which he was not) or even if he requested an accommodation (which he did not), making a request for an accommodation for a disability or medical condition does not constitute protected activity. Kelley v. Corr. Corp of Am., (E.D.CA 2010) 750 F.Supp.2d 1132, 1144 (holding that allegedly disabled employee failed to state retaliation claim because requesting accommodation for her claimed disability was not a protected activity under the FEHA). 22 NUNEZ V. RESEARCH METAL INDUSTRIES, INC. CASENoO. BC671648 DEFENDANT’S NOTICE OF MOTION AND MOTION IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT/ADJUDICATION © 0 9 O N Un BA W N = N N N N N N N N N e m e m e m p m e m e m e d 0 NN A N Ln BR A W D = O VO N N N N R E W N D = O Once again, Plaintiff cannot meet the first prong (i.e., the prima face case) and, even if he could, Defendant need only produce evidence that it had a nonretaliatory reason for its conduct - which Defendant clearly did. Unt v. Aerospace Corp., (9th Cir. 1985) 765 F.2d 1440, 1447; Argo v. Blue Cross & Blue Shield of Kansas, Inc., (10th Cir. 2006) 452 F.3d 1193, 1202-1203; Flait v. North American Watch Corp., (1992) 3 Cal. App.4th 467,479. [UDM 1-42.] Finally, Plaintiff has no evidence to support his burden of the third prong (i.e., that Defendant’s legitimate nondiscriminatory reasons were a ‘“pretext”). As such, the undisputed material facts evidence that Plaintiff’s Retaliation claim fails as a matter of law. C. As a Matter of Law, Plaintiff’s Third Cause of Action for Failure to Prevent Discrimination and Retaliation Fails. It is an unlawful employment practice in California for an employer “to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring.” Gov.C. § 12940(k). This provision creates a statutory tort action with the usual tort elements (duty of care to plaintiff, breach of duty, causation and damages). Ellis v. U.S. Security Assocs., (2014) 224 Cal.App.4th 1213, 1228. However, the law is crystal clear that no action lies for failure to take necessary steps to prevent discrimination or harassment if no such conduct in fact occurs: “There’s no logic that says an employee who has not been discriminated [or retaliated] against can sue an employer for not preventing discrimination [or retaliation] that didn’t happen, for not having a policy to prevent discrimination [or retaliation] when no discrimination [or retaliation] occurred.” Trujillo v. North County Transit Dist., (1998) 63 Cal. App.4th 280, 286; The Rutter Group, California Practice Guide: Employment Litigation, §§ 7:672; 10.481.2. As set forth herein and in Defendant’s Separate Statement of Undisputed Material Facts, as a matter of law, Defendant neither discriminated against nor retaliated against Plaintiff. [UMF 1-44.] As such, as a matter of law, Plaintiff’s Cause of Action for Failure to Prevent Discrimination or Retaliation, likewise, fails. /11 23 NUNEZ V. RESEARCH METAL INDUSTRIES, INC. CASENO. BC671648 DEFENDANT’S NOTICE OF MOTION AND MOTION IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT/ADJUDICATION © 0 9 O N Un BA W N = N N N N N N N N N e m e m e m p m e m e m e d 0 NN A N Ln BR A W D = O VO N N N N R E W N D = O D. As a Matter of Law, Plaintiff’s Fourth and Fifth Causes of Action for “Failure to Provide Reasonable Accommodations” and ‘Failure to Engage in a Good Faith Interactive Process” Fail. To establish a failure to provide reasonable accommodation claim, Plaintiff must prove: (1) that he had a condition that limited a major life activity that was known'® to Defendant; (2) that he was able to perform the essential job requirements with or without accommodations; and (3) that Defendant failed to provide reasonable accommodation. Jensen v. Wells Fargo Bank, (2000) 85 Cal.App.4th 245, 256. Plaintiff’s claim fails because, as discussed above, Plaintiff had no “condition” and it necessarily follows that Defendant could not be aware of such non-existent condition. The employee has the responsibility to initiate the process by requesting reasonable accommodation. Gov.C. § 12940(n). The employee must “cooperate in good faith with the employer” by providing “reasonable medical documentation” when the disability or need for accommodation is not obvious. 2 Cal.C.Regs. § 11069(d). Typically, the employee must be able to provide the employer with a list of restrictions that must be met to accommodate the employee. Jensen v. Wells Fargo Bank, (2000) 85 Cal.App.4th 245,266, 102 Cal.Rptr.2d 55, 70; King v. United Parcel Service, Inc., (2007) 152 Cal.App.4th 426, 442-444; Alejandro v. ST Micro Electronics, Inc., (N.D. CA 2016) 178 F.Supp.3d 850, 863. Pursuant to Plaintiff’s admitted deposition testimony, under oath, the following material facts are undisputed: (1)Plaintiff is not and was not disabled and, as such, Defendant could not be aware of a non-existent disability” [UMF 24-28]; (2) Plaintiff never asked anyone at Defendant about making an adjustment of his work duties: “No, no, I never asked for that” [UMF 40]; 10 The FEHA requires employers to make reasonable accommodation for the known disabilities of applicants and employees to enable them to perform a position’s essential functions, unless doing so would produce undue hardship to the employer's operations. Gov.C. § 12940(m); 2 Cal.C.Regs. § 11068(a); Fisher v. Sup.Ct. (Alpha Therapeutic Corp.), (1986) 177 Cal.App.3d 779, 783. 24 NUNEZ V. RESEARCH METAL INDUSTRIES, INC. CASENO. BC671648 DEFENDANT’S NOTICE OF MOTION AND MOTION IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT/ADJUDICATION © 0 9 O N Un BA W N = N N N N N N N N N e m e m e m p m e m e m e d 0 NN A N Ln BR A W D = O VO N N N N R E W N D = O (3) Plaintiff never asked anyone at his subsequent employer about making an adjustment of his work duties [UMF 41]; and (4) in response to his counsel’s own questions, he “never asked for any duties besides polishing.” [UMF 42.] As such, as a matter of law, Defendant had no duty to either “provide accommodations” or engage in an “interactive process” with an admittedly non-disabled employee who admittedly never requested any accommodation. [UMF 1-44.] E. As a Matter of Law, Plaintiff’s Sixth Cause of Action for Declaratory Judgment Fails. Section 1060 of the California Code of Civil Procedure provides in relevant part: “Any person interested under a written instrument ... or under a contract, or who desires a declaration of his or her rights or duties with respect to another, or in respect to, in, over or upon property ... may, in cases of actual controversy relating to the legal rights and duties of the respective parties, bring an original action or cross-complaint in the superior court for a declaration of his or her rights and duties in the premises, including a determination of any question of construction or validity arising under the instrument or contract. He or she may ask for a declaration of rights or duties, either alone or with other relief; and the court may make a binding declaration of these rights or duties, whether or not further relief is or could be claimed at the time....” While Section 1060’s language “appears to allow for an extremely broad scope of an action for declaratory relief” (Otay Land Co. v. Royal Indem. Co., (2008) 169 Cal. App.4th 556), “an actual controversy that is currently active is required" for such relief to be issued, and both standing and ripeness are appropriate criteria in that determination. [Citation.]” (Otay, at p. 563.) In addition, under C.C.P. Section 1061, “The court may refuse to exercise the power granted by this chapter in any case where its declaration or determination is not necessary or proper at the time under all the circumstances. Section 1060 must be read together with section 1061.” Meyer v. Sprint Spectrum L.P. (2009) 45 Cal.4th 634, D. Cummins Corp. v. U.S. Fid. & Guar. Co., (2016) 201 Cal. Rptr. 3d 585, 588. 1 “One cannot analyze requested declaratory relief without evaluating the nature of the rights and duties that plaintiff is asserting, which must follow some recognized or cognizable legal theories that are related to subjects and requests for relief that are properly before the court.” (Ibid.) 25 NUNEZ V. RESEARCH METAL INDUSTRIES, INC. CASENO. BC671648 DEFENDANT’S NOTICE OF MOTION AND MOTION IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT/ADJUDICATION © 0 9 O N Un BA W N = N N N N N N N N N e m e m e m p m e m e m e d 0 NN A N Ln BR A W D = O VO N N N N R E W N D = O Here, as Plaintiff’s employment was terminated over three years ago in August of 20135, there is no “currently active” controversy in existence for Declaratory Relief. [UMF 1-44.] F. As a Matter of Law, Plaintiff’s Seventh Cause of Action for Intentional Infliction of Emotional Distress Fails. The elements of a cause of action for intentional infliction of emotional distress include: (1) extreme and outrageous conduct by defendant; (2) intention to cause or reckless disregard of the probability of causing emotional distress; severe emotional suffering; and (3) actual and proximate causation of the emotional distress. Hughes v. Pair, (2009) 46 Cal.4th 1035, 1050; Alcorn v. Anbro Eng., Inc., (1970) 2 Cal.3d 493, 497-499; CACI 1600; Rest.2d Torts § 46(1). To recover for intentional infliction of emotional distress, the employer's actions must be shown to be “so extreme and outrageous as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” Alcorn v. Anbro Eng., Inc., supra, ?2 Cal.3d at 499; Vasquez v. Franklin Mgmt. Real Estate Fund, Inc. (2013) 222 Cal.App.4th 819, 832. “Outrageous conduct does not include trivialities such as indignities, annoyances, hurt feelings, or bad manners that a reasonable person is expected to endure.” CACI 1602; BAJI 12.74. Discipline and criticism that are a normal part of the employment relationship do not constitute “outrageous” conduct, even if intentional and malicious. Shoemaker v. Myers, (1990) 52 Cal.3d 1, 25; Lawler v. Montblanc North America, LLC, (9th Cir. 2013) 704 F.3d 1235, 1245-1246 (applying Calif. law). Firing an employee by itself does not constitute “outrageous” conduct, even if the firing was without cause. Buscemi v. McDonnell Douglas Corp., (9th Cir. 1984) 736 F.2d 1348, 1352 (applying Calif. law) - plaintiff was allegedly fired on a pretext, without cause and in a “callous and insensitive manner”. Thus, pursuant to the undisputed material facts, this cause of action fails as a matter of law. [UMF 1-44.] 26 NUNEZ V. RESEARCH METAL INDUSTRIES, INC. CASENO. BC671648 DEFENDANT’S NOTICE OF MOTION AND MOTION IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT/ADJUDICATION © 0 9 O N Un BA W N = N N N N N N N N N e m e m e m p m e m e m e d 0 NN A N Ln BR A W D = O VO N N N N R E W N D = O G. As a Matter of Law, Plaintiff’s Eighth Cause of Action for Violation of Civil Code § 43 Fails. Plaintiff’s Complaint alleges that Defendant violated Civil Code §43 when it “failed to provide a workplace free from violence and bodily harm by failing to act on Plaintiff’s complaints that the workplace was unsafe.”'> Again, here, pursuant to Plaintiff’s deposition testimony, under oath, the following material facts are undisputed that: (1) Plaintiff never made a complaint to anyone about any alleged unsafe working conditions [UMF 43]; and (2) Plaintiff was aware that if he was ever injured on the job (which he admittedly was not) - “no matter how slightly” - it was his duty to report the incident immediately to his supervisor [UMF 44.] Thus, pursuant to the undisputed material facts, this cause of action fails as a matter of law. [UMF 1-44.] H. As a Matter of Law, Plaintiffs Ninth Cause of Action for Violation of Civil Code § 51.7 Fails. When claiming a violation of California Civil Code provision governing “Freedom from Violence”, a plaintiff must show: (1) the defendant threatened or committed violent acts against the plaintiff; (2) the defendant was motivated by his perception of plaintiff’s protected characteristic; (3) the plaintiff was harmed; and (4) the defendant’s conduct was a substantial factor in causing the plaintiff's harm. I.H. by and through Hunter v. Oakland School for Arts, N.D.Cal.2017, 234 F.Supp.3d 987. Again, pursuant to the undisputed material facts, Plaintiff has no evidence to support this claim and, as such, this cause of action fails as a matter of law. [UMF 1-44.] 171 111 /11 = Request for Judicial Notice, Exh. “2”, Plaintiff’s Complaint, 17:11-16. 27 NUNEZ V. RESEARCH METAL INDUSTRIES, INC. CASE No. BC671648 DEFENDANT’S NOTICE OF MOTION AND MOTION IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT/ADJUDICATION © 0 9 O N Un BA W N = N N N N N N N N N e m e m e m p m e m e m e d 0 NN A N Ln BR A W D = O VO N N N N R E W N D = O I. As a Matter of Law, Plaintiff’s Tenth Cause of Action for Violation of Civil Code § 52.1 Fails. A plaintiff bringing a claim pursuant to the Bane Act must show: (1) intentional interference or attempted interference with a state or federal constitutional or legal right, and (2) the interference or attempted interference was by threats, intimidation or coercion. Scalia v. County of Kern, E.D.Cal.2018, 308 F.Supp.3d 1064. Plaintiff’s Complaint alleges “Defendants knew, or should have known, based on the Plaintiff’s prior complaints and witnesses during the incident that Plaintiff was threatened by RMI employee, Leanos with violence and bodily harm . . . . in violation of California Civil Code sections 52 and 52.1." However, Plaintiff testified, under oath, directly to the contrary. [UMF 1-44.] Again, pursuant to the undisputed material facts, this cause of action fails as a matter of law. J. As a Matter of Law, Plaintiff’s Eleventh Cause of Action for Violation of Labor Code §§ 6310 & 6312 Fails. Plaintiff’s Complaint alleges that Defendant “terminated Plaintiff because he made a bona fide complaint to Defendants regarding the unsafe working conditions, or work practices, in his place of employment." However, once again, Plaintiff testified, under oath, directly to the contrary. [UMF 1-44.] Again, pursuant to the undisputed material facts, this cause of action fails as a matter of law. 111 111 111 111 111 13 Request for Judicial Notice, Exh. “2”, Plaintiff’s Complaint, 19:21-24. a Request for Judicial Notice, Exh. “2”, Plaintiff’s Complaint, 20:13-16. 28 NUNEZ V. RESEARCH METAL INDUSTRIES, INC. CASENoO. BC671648 DEFENDANT’S NOTICE OF MOTION AND MOTION IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT/ADJUDICATION © 0 9 O N Un BA W N = N N N N N N N N N e m e m e m p m e m e m e d 0 NN A N Ln BR A W D = O VO N N N N R E W N D = O K. As a Matter of Law, Plaintiff’s Twelfth Cause of Action for Wrongful Termination in Violation of Public Policy Fails. To establish a claim for wrongful termination in violation of public policy, each of the following must be proved: (1) an employer-employee relationship; (2) employer terminated plaintiff's employment (or took other adverse employment action; (3) termination of plaintiff’s employment was a violation of public policy (or more accurately, a “nexus” exists between the termination and the employee’s protected activity); (4) the termination was a legal cause of plaintiff's damage; and (5) the nature and the extent of plaintiff's damage. Holmes v. General Dynamics Corp. (1993) 17 Cal. App.4th 1418, 1426; CACI 2430. A “nexus” must be shown between the employee’s protected activity and the adverse action taken against the employee; e.g., that the plaintiff was discharged because of his or her refusal to commit unlawful acts, etc. Turner v. Anheuser-Busch, Inc., (1994) 7 Cal.4th 1238, 1258-1259. [UMF 1-44.] Here, the undisputed material facts evidence that: (1) Plaintiff was terminated for a legitimate, nondiscriminatory reason (i.e., repeated aggressive acts towards co-employees); and (2) Plaintiff never refused to commit any alleged “unlawful acts.” [UMF 1-44.] As such, this claim fails as a matter of law. L. Plaintiff Cannot Prove Oppression, Fraud or Malice to Support an Award of Punitive Damages. To recover punitive damages, Plaintiff must establish, by clear and convincing evidence, that Defendant is guilty of oppression, fraud or malice. Code of Civil Procedure, §3294(a). Malice or oppression by a company can be proven only by showing “despicable conduct” carried our in “conscious disregard” of Plaintiff’s rights, by an officer, director or managing agent. Steward v. Truck Insurance Exchange, (1993) 17 Cal.App.4th 468, 483. Plaintiff has zero evidence to support this allegation. [UMF 1-44.] /11 29 NUNEZ V. RESEARCH METAL INDUSTRIES, INC. CASENO. BC671648 DEFENDANT’S NOTICE OF MOTION AND MOTION IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT/ADJUDICATION NY 0 N N BR W N ) DN N R D N D N N N N mm ee em e s e m ® NN A BR W N ~~ SS © ® u h h R E D » O e m 4. CONCLUSION. For all the foregoing reasons, Defendant Research Metal Industries, Inc. respectfully requests that the Court grant its Motion for Summary Judgment in its entirety or, in the alternative, Summary Adjudication as to all issues in its favor. DATED: January 10, 2019 NUNEZ v. RESEARCH METAL INDUSTRIES, INC. LAW OFFICE OF LAWRENCE J. LENNEMANN y: > pt ait = Pr pn LAWRENCE JLENNEMANN ~~ Attorneys for Pefendant RESEARCH METAL INDUSTRIES, INC. 30 CASENoO. BC671648 DEFENDANT'S NOTICE OF MOTION AND MOTION IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT/ADIUDICATION OW 0 ~ 1 O N Wn hh W N == N N N N N N N N m em e m e e em em ed ee 00 ~~ ON Un bh W N = O Ww N N R W N = oO PROOF OF SERVICE STATE OF CALIFORNIA ) ) SS COUNTY OF LOS ANGELES ) I am employed in the county of Los Angeles, State of California. Iam over the age of 18 and not a party to the within action; my business address is Express Network, 1605 W. Olympic Boulevard, Suite 800, Los Angeles, CA 90015. On January 10, 2019, I served the foregoing document described as DEFENDANT RESEARCH METAL INDUSTRIES, INC.’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, MOTION FOR SUMMARY ADJUDICATION on the interested parties in this action by placing true copies thereof enclosed in sealed envelopes addressed as follows: Kaveh S. Elihu, Esq. David C. Hopper, Esq. EMPLOYEE JUSTICE LEGAL GROUP, LLP 3055 Wilshire Boulevard, Suite 1120 Los Angeles, CA 90010 (BY MAIL) As follows: I am “readily familiar” with the firm's practice of collection and processing correspondence for mailing. Under that practice it would be deposited with U.S. postal service on that same day with postage thereon fully prepaid at Palos Verdes Estates, California in the ordinary course of business. [am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. X (BY PERSONAL SERVICE) I delivered such envelope by hand to the addressee. (BY EMAIL) By transmitting a true copy thereof via email to the email addresses listed above. The transmission was reported as sent (completed) and without error. (BY UPS OVERNIGHT MAIL) By delivering to a UPS Agent to deliver to the counsel of record the next business day. [>< (STATE) I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. (FEDERAL) I declare that I am employed in the office of a member of the bar of this court at whose direction the service was made. Executed on January 10, 2019, at Ko Age les er ; Califor ia. | NUNEZ V. RESEARCH METAL INDUSTRIES, INC. CASENO. BC67164 DEFENDANT'S NOTICE OF MOTION AND MOTION IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT/ADIUDICATION Reservation Printout-BC671648-181130369892 THE SUPERIOR COURT OF CALIFORNIA COUNTY OF LOS ANGELES | Home Online Services (/page/HOQ0Pdge/ON0O001) Self-Help (/page/SHO001) Forms, Filings & Files (/page/FO0001) k Fil (/page/DV0001) Page 1 of 2 Espafiol (http://translate.google.com/translate? hi=en&sl=auto&tl=es&u=http://www.lacourt.org/) Tiéng Viét (http://translate.google.com/translate? hi=enasRMERI=vigu=http://mmww.lacourt.org/) st=0f (http://translate.google.com/translate? Help Us [ale 1gel" & hi=en&sl|=auto&ti=ko&u=http://www.lacourt.org/) FR(https:/www surveymonkey.com/sfiascwet x (http:/ftranslate.google.com/transjate ? hi=gg] =avloBTH eneral Info Divisions > Civil (/page/DV0003) CRS (index.aspx) Make Reservation (Reservation.aspx) COURT RESERVATION SYSTEM Court Reservation System View / Update Reservation (UpdateReservation.aspx) RESERVATION INFORMATION (/page/G10000) (http://translate.google.com/translate? hl=en&sl=auto&tl=hy&u=http://www.lacourt.org/) 4 Civil Home (/page/DV0003) Update Contact Info Reprint Receipt Reschedule Cancel Get Help (pdf/GetHelp.pdf) User Agreement Updated 1/31/18 (UserAgreement.aspx? view=Y) Reservation ID: Case Number: Case Title: Party: Courthouse: Department: Reservation Type: Date: Time: 181130369892 BC671648 ALFONSO NUNEZ VS RESEARCH METAL INDUSTRIES INC RESEARCH METAL INDUSTRIES INC. (Defendant) Stanley Mosk Courthouse 28 Click here to view the Courtroom Information. (../../courtroominformation/ui/resultpopup.aspx? value=LAM/28) Motion for Summary Judgment 7/11/2019 08:45 am Thank you! The reservation has been completed. A notification email has been sent to the email address that was provided. The email contains the Reservation ID and a PIN that will be required in case you wish to reprint the receipt, update the contact information, reschedule, or cancel the reservation. Step 1: Click here to print receipt and attach it to the corresponding motion/document as the last page. Indicate the Reservation ID on the motion/document face page. The document will not be accepted without this receipt page and the Reservation ID. Step 2: Make Another Reservation With the Same Case Number ALIFORNIA, COUNTY OF LOS ANGELES ) CASE NO.: BCODODOD < > NOTICE OF MOTION A) TO COMPEL ANSWEI iq INTERROGA’ Ww DA ) ) ) ) ) ) ) ) Follow the steps in CRS Instructions and Information. (pdf/GetHelp.pdf) Make Another Reservation With a Different Case Number Click on the "Exit CRS" button if you have finished making reservations. This will clear the personal information that was saved temporarily during the reservation process. This extra step will help keep your information private. Exit CRS | This is especially important if you are using a shared or public computer. https://www.lacourt.org/mrs/ui/Confirmation.aspx 11/30/2018 Reservation Printout-BC671648-181130369892 Page 2 of 2 Copyright 2014 Superior Court of California, County of Los Angeles Privacy Statement (/page/HO0050) | Disclaimer (/page/HO0051) | Employment (/page/GI_EM001) | ADA (/page/HO0015) | Holidays (/page/HO0009) | Comment on our Website (/page/HO0052) https://www.lacourt.org/mrs/ui/Confirmation.aspx 11/30/2018