Opposition To Defendants Motion For Summary AdjudicationMotionCal. Super. - 2nd Dist.October 1, 2018Electronicall © 0 J O N hn KB WwW N = NN N N N N N N N N e m e m e m e m e m e m e m p m c o NN O N Un A W N = © VW 0 NN O N BM A W N = O ILED by Superior Court of California, County of Los Angeles on 04/27/2020 12:00 AM Sherri R. Carter, Executive Officer/Clerk of Court, by R. Sanchez, Deputy Clerld Brett D. Szmanda (SBN 288688) Brett@szmandalaw.com SZMANDA LAW GROUP, P.C. 17011 Beach Blvd., Ste 900 Huntington Beach, California 92647 Telephone: (714) 369-6861 Attorney for Plaintiff JEFFREY BARR SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES STANLEY MOSK COURTHOUSE JEFFREY BARR, on behalf of herself and as a Representative of the People of the State of California, Plaintiff, ACTION SALES & METAL CO., ET AL; and DOES 1-20, Defendants. CASE NO.: BC723895 ASSIGNED FOR ALL PURPOSES TO: Hon. Christopher K. Lui, Dept. 76 PLAINTIFF JEFFREY BARR'S OPPOSITION TO DEFENDANTS ACTION SALES'S AND BRUCE FALK'S MOTION FOR SUMMARY ADJUDICATION; PLAINITFF'S SEPARATE STATEMENT OF DISPUTED AND UNDISPTED MATERIAL FACTS; DECLARATIONS OF JEFFREY BARR, SAL JIMENEZ AND BRETT SZMANDA IN SUPPORT THEREOF Date: June 23, 2020 Time: 1:00 p.m. Place: Dept. 76 Trial Date: January 6, 2021 Date Action Filed: October 01, 2018 PLAINTIFFS OPPOSITION TO DEFENDANTS BRUCE FALK’S AND ACTION SALES & METAL CO.’S MOTION FOR SUMMARY ADJUDICATION © 0 39 O N Un BA W N = N N N N N N ND N N m m e m e m e m e m e m e m e m c o NN O N Wn BA W I N D = O O OVO 0 N O N N R A = Oo II. III. TABLE OF CONTENTS INTRODUCTION... cotta eee eee eee eee eee eee eee eee 1 STATEMENT OF MATERIAL FACTS oot eee eee eee eee eee eee ee eee eee eee eee 1 ARGUMENT. ooo ee 6 A. Defendants Are Not Entitled To Summary Adjudication Of Plaintiff’s Tenth Cause Of Action For Breach Of Contract ........vuueiiiiiiiniiiie ieee 6 I. Plaintiff’s Tenth Cause Of Action Is Not Barred By The Doctrine Of Unenforceability Of Indefinite Promises ..................c.ocooiiinne. 6 2. Plaintiff’s Tenth Cause Of Action For Breach of Contract Is Nat. Barred by The Statute: OF Frans, sees. «os sows os s sommes o 0s sso o £5 5 5 smn 9 3. The Parties’ Agreement Is Not Unlawful Under California Business and Professions Code Section 16600. ........oovviiiiiiiiiiiiiiiiiiaanninn, 9 B. Defendants Are Not Entitled To Summary Adjudication Of Plaintiff’s Eleventh Cause Of Action For Fraud .......coooviiiiiiiiiii eee ieee, 9 1. Defendants’ Misrepresentation Was The Cause Of Plaintiff’s Harm «oo 10 2. The Holding of Hunter v. Upright, Inc., 6 Cal.4th 1174 (1993) Does Not Barr Plaintiff’s Eleventh Cause of Action .........ccovvvviiiiiiiinnnnn... 10 C. Defendants Are Not Entitled To Summary Adjudication Of Plaintiff’s Third and Fifth Causes Of Action For Violations Of California Labor [Oa (SR IN HO EE 1 0 11 D. Defendants Are Not Entitled To Summary Adjudication Of Plaintiff’s First, Second and Fourth Causes Of ACHOMN .....uiiitiiiiiie teen, 11 1. Plaintiff First Cause Of Action Alleges Violations Of Government Code § 12940(h), Not Government Code § 12940(a) ..........covvvivveiiiiiiinnnn... 11 a. Plaintiff Need Not Establish That He Was A Member Of A Protected Class to Establish Standing to Maintain His First Cause Of ACHON ..ovviiie tte eee 12 b. Plaintiff’s First Cause of Action is Not Dependent Upon Plaintiff Establishing a Prima Facie Case for Constructive DISCharge o.oo 12 & Plaintiff’s Evidence Is Not Barred by FEHA’s Statute Of LAMItAtIONS ove t ett ete eee eee ee eee eee eee eee eee 13 2. Defendants Are Not Entitled To Summary Adjudication Of Plaintiff’s Second Cause Of Action For Violations Of California Government COE § 1294001) «veneer eee 14] PLAINTIFF'S OPPOSITION TO DEFENDANTS BRUCE FALK’S AND ACTION SALES & METAL CO.’S MOTION FOR SUMMARY ADJUDICATION © 0 39 O N Un BA W N = N N N N N N ND N N m m e m e m e m e m e m e m e m c o NN O N Wn BA W I N D = O O OVO 0 N O N N R A = Oo a. Plaintiff Has Standing to Maintain His Second Cause Of Action 14 b. Plaintiff’s Evidence of Harassment Is Not Time Barred ..................... 16 ¢, Plaintiff’s Second Cause of Action is not Pre-empted by the Workers” Compensation ACE ........c.ovuivuiiiiiiiiiiiiai aie eieannaais 17 3. Defendants Are Not Entitled To Summary Adjudication Of Plaintiff’s Fourth Cause of Action For Wrongful Termination In Violation Of Public POLICY ......oouuiiiiii eee, 17 E. Defendant Falk Is Not Entitled To Summary Adjudication Of Plaintiff’s First, Third, Fourth, Fifth and Tenth Causes Of ACtiON.........vuuieiiiiiiiiiiaeeeieeinnnns 18 1. Falk May Be Held Liable Under Plaintiff’s First & Fourth Causes OF ACTON Lou e 18 2. Falk May Be Held Liable Under Plaintiff’s Third & Fifth Causes CI AGHION «cs 5 smmminas ¢55 5 snimmmns s 05 55 5aammnds 4 55 5 5o@REAEE 83 55 BRERA E555 AGRI FS 55 5 BOAT 19 3. Falk May Be Held Liable Under Plaintiff’s Tenth Cause Of AABHIORT 1 4 «4 sammssoan 53 15 wuss» » § sSsconss § 1 § § SSbcEosos #8 § § NLNCOSES § § {4 SEH §1 1 PENGIUR ¥ 78 19 IV. CONCLUSION oti eee eee eee eee eee 20 -11- PLAINTIFF'S OPPOSITION TO DEFENDANTS BRUCE FALK’S AND ACTION SALES & METAL CO.’S MOTION FOR SUMMARY ADJUDICATION © 0 39 O N Un BA W N = N N N N N N ND N N m m e m e m e m e m e m e m e m c o NN O N Wn BA W I N D = O O OVO 0 N O N N R A = Oo TABLE OF AUTHORITIES California State Cases Alvis v. County of Ventura, 178 Cal. AppAth 536 C2009) «is: snmmmusasssnamnnssss ss anomie s ss 5 sods 45 4 5 sass s 4 55» passin ss 5 50 911 Carlesimo v. Schwebel, 87 CalLAPP.2d 482 (1948)... niet ee 19 Cheema v. L.S. Trucking, 39 Cal. App.Sth 1142 (2019) nein ee eee eee eae 7,8 Foley v. Interactive Data Corp., AT Cal.3d 654, 647 (1088)... eee eee eee 9 Galvan v. Dameron Hospital Assn., 37 Cal.App.5th 549 (June 20, 2019) «ooo 15 Gay Law Students Assn. v. Pacific Tel. & Tel. Co., 24: Cal 3d 438 (Cal. Mas Sls T9TDY senso oma v5 5 sommes o 65 5 sommes 55 Samsun ¢ £5 5 6S6H0687 ¢ 15 5 658 11 Guz v. Bechtel National, Inc. 24 Cal. 4th 317 (2000) «neon eeeeeeeeeeeeeeeea 6 Hunter v. Upright, Inc. G6 CAlAth, 1174 C1993) mons s 05 5 sonmmmmnns s 55 5 saimsimonts ss 5 5 Sammons § 45 5 ansais s 1 5 BAREGHAES 8 §5 PAREERLS§§ § 5 ASFIES 10 Jang v. State Farm Fire & Casualty Co., 80 Cal.App.4th 1291 (1st Dist. May 24, 2000) .....uuiinriiiteitei eee eee eee 10 Jones v. Torrey Pines, 42 Calldth T158 (2008) «neni eee eee eee eee eee ee eee 18 Jos. Schlitz Brewing Co. v. Downey Distributor, 109 Cal. App.3d 908 (2 Dist. Aug. 29, 1980). ......oevuiiniieei eee eee 6, 8 Laabs v. City of Victorville, 163 Cal. App.4th 1242 (2008) «enue eee eee eee eee 9,11 Ladas v. California State Auto Assn., 19 CalLApp.4th 761 (1993) iin 7 Leek v. Cooper, 194 Cal. App.4th 399 (April 15, 2011) .oiniiii eee 18, 19 Livitsanos v. Superior Court, 2. Cal ath “TA C1992]. . ++ s sso i 55 sommes t 15s 550000085 8 £5 5 FSGHRES 4 6 §5 SOMBIE § 1 5 § 5 SEE § €5 5 6 SEA 1 HOES 17 -iii- PLAINTIFF'S OPPOSITION TO DEFENDANTS BRUCE FALK’S AND ACTION SALES & METAL CO.’S MOTION FOR SUMMARY ADJUDICATION © 0 39 O N Un BA W N = N N N N N N ND N N m m e m e m e m e m e m e m e m c o NN O N Wn BA W I N D = O O OVO 0 N O N N R A = Oo Lockheed Aircraft Corp. v. Superior Court of Los Angeles County, 28 Cal.2d 481 (1946). nei 10 Loral Corporation v. Moyes, 174 Cal. App.3d 268 (6th Dist. NOV: 8 1983): ; « sms 15 5s sums o 15 5 5 summons s 15 55 sovmssasnss 145 5 8 samwanns in 9 Murphy v. Allstate Ins. Co., 83 Cal. App.3d 38 (4th Dist., July 21, 1978). ..conuiiiii eee eee 10 Nazir v. United Airlines, Inc., 178 Cal. App. Ath 245 C2009) 1s: inmmmnieas ss nnamnnsss sss wns s 45 55 sass 5 5 5 5aEanads 55 5 55amhas i 5 5 bansns 16 Ontario Downs, Inc. v. Lauppe, 192 Cal. App.2d 697 (3d Dist. May 31, 1961) .....oiiniiiii ieee 6 Ortiz v. Dameron Hospital Assn., 37 Cal.App.S5th 568 (June 20, 2019) «o.oo 15 R. D. Reeder Lathing Co. v. Allen, 66 Cal.2d 373 (1067). 6 Reno v. Baird, 18 Caldth 640 (1998) neo ee eae 18 Reynolds v. Bement, 36 Cal.dth 1075 (2005) «enue eee eee eee eee eee eee 19 Richards v CH2M Hill, Inc., 26 Calldth 798 (2001). nuit ee 13 Rochlis v. Walk Disney Co., 19° Cal. Appl 200 C199FY 2 0 oxo commun « es 5 somummns so 5s somommns o£ 5 6 5SR0E05ES § §3 5 FSHEIRES 4 £55 5 SERHHE § { § KERHFTS 7 Romano v. Rockwell Internat. Inc., 14 Cal. 4th 479 (1996). «neni eee eee 13 Scott v. Pacific Gas & Electric Co., 1] GaLAH ATE CLIPS) wins vss 5 samosas 355 panmnsss 55 oanmints s §5 5 baasmts § § 55 BAMSHAAS §§ § 5 SABSHOALS §§5 5 hanes 6,7 Thompson v. City of Monrovia, 186 Cal. App.4th 860 (2010) oer eee eee eee eee 14, 15 Tsemetzin v. Coast Federal Savings & Loan Assn., ST CalLApp.4th 1334 (1097) «even ee eee eee eee 9,11 Turner v Anheuser-Bush, Inc., T CalAth 1238 (1994) nei eee eee eee 17 -1v- PLAINTIFF'S OPPOSITION TO DEFENDANTS BRUCE FALK’S AND ACTION SALES & METAL CO.’S MOTION FOR SUMMARY ADJUDICATION © 0 39 O N Un BA W N = N N N N N N ND N N m m e m e m e m e m e m e m e m c o NN O N Wn BA W I N D = O O OVO 0 N O N N R A = Oo United States Liab. Ins. Co. v. Haidinger-Hayes, Inc., LF Cal.3d 586 (1970). «cuenta eee eee eee eee eee eee eee aaa 19 Yanowitz v. L'Oreal USA, Inc., 6 Calli, 10S [OBS » soomrnis sss nomen os 55 505 5 5 SARSRAS § 15 § BAREIS 575 5 SARSILAS § § §§ BAGHIERASS ¥ 55 45 12,13 Federal Cases: Samson v. Wells Fargo Bank, N.A., 777 Fed. Appx. 881 (9th Cir. June 28, 2019) .....oiuiiiiii ieee 6 Statutes: Cal. Bus. and Prof. Code § 16000 ......oouunniiiiiiie eee eee eee eee es 9 Cal. GOV. Code § 12920... eit eee eee 17 Cal. GOV. Code § 1203. tii eee eee eee 17 Cal. GOV. Code 12923(A)). +.eeiiiiii titties 15 Cal. GOV. Code 12923(D)). «venetian 15 Cal. GOV. Code 1292300) ) cite iiiiiiit itties 16 Cal. GOV. Code 12923(d) .euvinintitite tee eee ees 16 Cal. GOV. Code § 12940(Q) «neuen eee eee 11,12, 18 Cal. GOV. Code § 1294001) «ouverte 11,12, 18 Cal, Gow. Code: B T29AI(T) cnomnns ss is sansmniss ss 5 nansmniss ss 5 ARSMHaa0 §5 §5 6AMBRLDT 5 § 5 RARGHRAT § 15 5 SAMHRLS § 1 §5 AAFC 14 Cal. GOV. Code § 12003(a). oii tei eee eee eee eee as 1 Cal. Lab. Code § ooo eee 18, 19 Cal. Lab. Code § L101 nun eee eee 11,1 Cal. Lab. Code § 1102 «o.oo eee eee 11,19 TWIG: Wigs Order 4-200] § 2H) sommes oss somos os sommes s i5 6 5ssumenss «655 5 Smumes ¢ £55 656M § §3 5 5 SEHD F355 19 5s PLAINTIFF'S OPPOSITION TO DEFENDANTS BRUCE FALK’S AND ACTION SALES & METAL CO.’S MOTION FOR SUMMARY ADJUDICATION © 0 39 O N Un BA W N = N N N N N N ND N N m m e m e m e m e m e m e m e m c o NN O N Wn BA W I N D = O O OVO 0 N O N N R A = Oo I. INTRODUCTION Defendants’ motion is without merit. A substantial portion of Defendants’ motion is dedicated towards defeating a discrimination claim that Plaintiff has not allege in this action, as well as invalidating an oral contract which is not at issue here. For the reasons set forth below, and also in Plaintiff’s opposing separate statement, Defendants’ motion should be denied in its entirety. II. STATEMENT OF MATERIAL FACTS! Plaintiff began working for Defendants in or around September 1989. (Barr Decl., {2; P11:19- 22.) In approximately 1997, Falk promised Plaintiff a severance package in the amount of 10% of his inventory when Plaintiff would leave the company. (Barr Decl., 5; D104:17-25, P13:15-25.) Falk “absolutely” remembers having this conversation with Plaintiff “[v]ividly”. (D104:25.) Falk told Plaintiff that he would get ten percent of all the new and used metal that Defendants sold, but the scrap metal was not included. (Barr Decl., 6; P45:2-16, D50:24-51:1.) Falk made his promise to Plaintiff after learning that Plaintiff was receiving offers from other companies. (Barr Decl., 7; P14:12-20.) Plaintiff and Falk discussed that it would be a cash payout equivalent to the value of 10% of the inventory (Barr Decl., 8; P18:14-16), and the value of the 10% of the inventory was to be assessed at the time it was to be paid out. (Barr Decl., 9; P18:14-16, P53:11-15, D111:18-19.) The reason why Falk promised Plaintiff the cash equivalent, as opposed to the physical inventory, was to avoid Plaintiff opening up a competing business. (Barr Decl., { 10; P20:10-17.) Falk did not tell Plaintiff that he could not compete, it was just understood that the reason for Falk giving Plaintiff the cash payout, as opposed to the physical inventory, was so that Plaintiff couldn’t take that inventory and open up a competing business. (Barr Decl., 11; P16:12-18.) Any agreement that Plaintiff was not going to compete with Defendants had nothing to do with Falk’s promise to provide Plaintiff with a severance equal to 10% of their inventory when he left. (D106:5-14.) When Falk first made his promise, he told Plaintiff that his share at the time was worth about one hundred thousand dollars ($100,000.00). (Barr Decl., 12; P44:12-45:1.) Being in his 20’s at the time, that was a lot of money for Plaintiff, so Plaintiff asked Falk what would be stopping him from just leaving and cashing out. (Barr Decl., 12; P23:10-17.) Falk told Plaintiff that he should stay because the inventory will grow and be worth more as time goes on, but he never told Plaintiff how long he should stay. (Barr Decl., 13; P23:13-22, P23:7-9, P53:23-24, P55:12-19.) It was enticing for Plaintiff to stay knowing that the value of the inventory would grow. (Barr Decl., q 14; P53:15-22.) ! Plaintiff’s Material Facts are set forth in further detail in Plaintiff’s Opposing Separate Statement of Disputed and Undisputed Material Facts. (Plaintiff’s SS, pgs. 69-92.) -1- PLAINTIFF'S OPPOSITION TO DEFENDANTS BRUCE FALK’S AND ACTION SALES & METAL CO.’S MOTION FOR SUMMARY ADJUDICATION © 0 39 O N Un BA W N = N N N N N N ND N N m m e m e m e m e m e m e m e m c o NN O N Wn BA W I N D = O O OVO 0 N O N N R A = Oo There was no need for the Parties to discuss who would appraise the value of the inventory, as they never contemplated having anyone else value the inventory for them. (Barr Decl., 16.) Plaintiff knew based upon his knowledge of the price of metal, and knowing that Defendants’ inventory had grown significantly, that the value of the inventory had roughly doubled. (Barr Decl., 16; P46:10-23, P54:6-12.) Plaintiff’s estimate of the value of Defendants’ inventory is also verifiable, as Falk keeps very detailed records of the inventory. (D62:11-14, D95:20-96:3.). Defendants use a system called Steel Plus to facilitate the sales of new and used metal and for keeping track of their inventory. (D58:24-59:1, D95:20-96:3.) Defendants’ Steel Plus system records every metal sale that Action Sales makes, including the date of sale, what was sold, the person making the purchase and for how much the metal was sold with regards to new, used and surplus metal. (D59:2-23, D64:6-65:3.) Defendants also have extensive records showing every metal purchase Action Sales has made, and Defendants keep these records for at least seven years. (D97:11-13, D349:10-16). According to Falk, Plaintiff kept bringing up the parties’ agreement throughout his employment, “[t]he same thing ad nauseam”, which was at least 10 or 12 times from the time Defendants first made their promise, plus an additional four times during the Parties’ April 13, 2018 conversation. (D107:22- 108:4, D116:6-11, P18:20-21, P19:4-6.) Falk never shot Plaintiff down any of the times that he brought up the agreement. (D115:10-13.) Falk is not contesting that the Parties made this agreement. (D111:20- 21.) The only issue Falk is contesting is whether there was a requirement of Plaintiff staying until the age of retirement. (D111:20-24.) In 2015, Action Sales was convicted of recycling fraud, conspiracy, and grand theft of personal property. (Barr Decl., | 19; D184:24-185:2; Declaration of Brett Szmanda (“Szmanda Decl.”), Decl. 3, Exhibit 2, pg. 2-5.) However, Falk denies that Action Sales was ever indicted for and convicted of fraud, conspiracy and grand theft of personal property, and Falk believes those criminal charges “was all a bogus thing, bogus charges.” (D185:2-3, D185:16-23, D187:9-13, D187:23-188:4, D188:9-14.) Falk does not believe that CRV refunds belong to the California consumers who purchased the cans. (D183:5-20.) Falk believes that Kamala Harris, the Attorney General at the time, brought these criminal actions against Defendants because she wanted to make a name for herself (D98:14-22), and Falk thinks that the Sheriff’s Department and Kamala Harris’s office lied to the judge in order to get their warrant. (D185:5-12, D340:17-341:13.) Action Sales’ revenue decreased significantly as a result of it being convicted of fraud, conspiracy and grand theft of personal property, because Defendants were no longer allowed to buy aluminum cans through California’s recycling program. (Barr Decl., § 20; P285:16-25, D362:2-17.) 2- PLAINTIFF'S OPPOSITION TO DEFENDANTS BRUCE FALK’S AND ACTION SALES & METAL CO.’S MOTION FOR SUMMARY ADJUDICATION © 0 39 O N Un BA W N = N N N N N N ND N N m m e m e m e m e m e m e m e m c o NN O N Wn BA W I N D = O O OVO 0 N O N N R A = Oo The aluminum cans were a big part of the scrap business (Barr Decl., 21; P285:17-18), so being prohibited from participating in California’s recycling program changed the whole dynamic of Defendants’ work, and business had gotten a lot slower than it had been in previous years. (Barr Decl., 922; P300:1-4.) In addition to being kicked out of California’s recycling program, Defendants’ profitability also started decreasing in 2017 as a result the threat of tariffs being imposed, which were implemented after Plaintiff left Action Sales in 2018. (D141:11-18.) Defendants were upset over the tariffs, because they no longer had the “freedom to negotiate prices... that’s it. That’s the price, no negotiation, take it or leave it.” (D147:16-21.) Action Sales was therefore not doing well during the last four or five years of Plaintiff’s employment, and Defendants were concerned over whether they could continue paying Plaintiff his salary. (D118:14-23.) Falk did not think that Plaintiff was generating enough sales or enough profit to pay his own salary. (D118:24-119:2.) In fact, Defendants believe that they were carrying Plaintiff for a long time. (D165:1.) However, according to Falk, they “never fired people. [They] didn't fire.” (D122:18). In order to get rid of Plaintiff without actually firing him, Plaintiff believes that Falk and two other employees named Juan and Ruben came up with a way to try to push him out of the company. (Barr Decl., 25; P61:17-62:4; P72:1.) Business had gotten slower, and Plaintiff believes that Defendants knew that they could save money by getting rid of Plaintiff and have Juan and Ruben take over his duties. (Barr Decl., 26; P291:19-22.) Plaintiff believes that Ruben and Juan were working with Falk to get rid of Plaintiff so that they could move up in the company. (Barr Decl., 27; P263:5- 19.) Ruben was in charge of the scrap metal side of the business, so he had very little to do after Defendants lost most of their scrap business. (Barr Decl., 28; P285:16-25.) Falk had also been taking Plaintiff’s job duties away from him over a period of time lasting two years. (Barr Decl., (35; P261:1-6, P293:17-23.) Defendants did not tell Plaintiff why they were taking his job duties away, such as for errors or mistakes being made. (Barr Decl., 41; P65:10-17). However, Plaintiff considered his duties being taken away to be demotion. (Barr Decl., 42; P133:25-134:3.) Plaintiff believes Defendants were taking his duties away and making him stay in the office as a means of getting Plaintiff out of the company. (Barr Decl., 43; P291:17-19.) After working with Plaintiff for 29 years, Falk knew Plaintiff’s personality was one which always liked to be busy while at work and that “he has to be busy all the time”. (Barr Decl., 44; P291:17-18, D117:23-25, D118:1-3.) Defendants also started reducing Plaintiff’s compensation in 2016. (Barr Decl., § 45; P134:15- 20, Szmanda Decl. { 6, Exhibit 5 (ASM 00036-38.)) In 2015, Plaintiff received $70,000.00 in bonuses, 3s PLAINTIFF'S OPPOSITION TO DEFENDANTS BRUCE FALK’S AND ACTION SALES & METAL CO.’S MOTION FOR SUMMARY ADJUDICATION © 0 39 O N Un BA W N = N N N N N N ND N N m m e m e m e m e m e m e m e m c o NN O N Wn BA W I N D = O O OVO 0 N O N N R A = Oo which was reduced in 2016 to $50,000.00, and reduced again in 2017 to $42,000.00. (Barr Decl. 47, Szmanda Decl. q 6, Exhibit 5 (ASM 00036-38).) In addition to Plaintiff being bored, Falk believes that Plaintiff left Action Sales because he did not think that he would receive the same amount in bonuses moving forward (D164:19-25), and according to Defendants, Plaintiff was “damn right” in thinking that. (D164:25-165:1.) In addition to having his bonuses significantly reduced and having all of his job duties taken away, Plaintiff also considered Defendants’ creating a hostile working environment to be an adverse employment action. (Barr Decl., 48 {; P135:3-8.) Plaintiff would have to diffuse situations after customers had bad experiences with Falk, and it was tiresome for Plaintiff to keep having to explain Defendants’ inappropriate behavior to customers. (Barr Decl., § 58; P306:18-24, P457:23-25.) For example, Falk allowed a bell with the phrase “Ring for Sex” written on it to remain on Action Sales’s sales counter since 2014. (Barr Decl., 59; D174:22-175:17, P201:1-202:11, P427:20-478:1.) Also, in 2017 two of Plaintiff’s customers from West Coast Ship Supply complained to Plaintiff how Falk had called them and started talking about the customers’ penis sizes. (Barr Decl. 65; P304:4-21; Declaration of Sal Jimenez (“Jimenez Decl.”), § 8.) Falk brought up the topic of penis size with Sal from West Coast Ship Supply on multiple occasions. (Barr Decl., | 66; P305: 24-25, P306:13-18; Jimenez Decl., {7.) This caught Plaintiff off-guard and he did not know how to approach this topic with Falk. (Barr Decl., J 69; P304:22-305:11, P312:23-25.) It was also very uncomfortable for Plaintiff to have to smooth things over with West Coast Ship Supply. (Barr Decl., 70; P426:20-24.) This didn’t happen one time, it happened on multiple occasions. (Barr Decl., 71; P305:21-25.) Those types of situations made it harder for Plaintiff to perform his job. (Barr Decl., 72; P427:7-16.) Falk was also routinely be demeaning and racist towards Hispanic customers, which had been going on for quite a few years, and this especially bothered Plaintiff because his wife is Hispanic. (Barr Decl., 83; P196:6-14, P196:17-197:2, P339:4-9.) Falk would also charge Hispanic customers higher prices if they did not speak English. (Barr Decl., 91; P199:4-5), Falk would get upset and ask Plaintiff why he wasn’t charging Hispanic customers more. (Barr Decl., § 92; P199:7-8.) After Falk raised the prices for one of Plaintiff’s Hispanic customers while Plaintiff was on vacation, Plaintiff approached Falk and the two got into a big fight. (Barr Decl., 97; P78:10-12.) According to Falk, Plaintiff “had a hissy-fit about this, and he said ‘I promised this’ and blah, blah, blah”. (D136:6-8.) Falk told Plaintiff things like “It was so nice when you weren't here. All the employees were happy. Nobody here likes you”, and that there was no conflict and everything ran smoothly while he was gone, and that Plaintiff needed to leave, “stuff like that.” (Barr Decl., 9 99; P82:3-5, P83:8-13.) After hearing these things from 4- PLAINTIFF'S OPPOSITION TO DEFENDANTS BRUCE FALK’S AND ACTION SALES & METAL CO.’S MOTION FOR SUMMARY ADJUDICATION © 0 39 O N Un BA W N = N N N N N N ND N N m m e m e m e m e m e m e m e m c o NN O N Wn BA W I N D = O O OVO 0 N O N N R A = Oo Falk, it reaffirmed Plaintiff’s belief that Falk was trying to push him out of the company and Plaintiff knew that something had to change. (Barr Decl., { 101; P284:6-10, P284:14-23.) At the time, plaintiff didn’t know whether he should go out on stress leave or consult an attorney. (Barr Decl., 102; P302:22-24, P432:6-8.) When the Parties would have heated arguments in the past, Plaintiff would tell Falk that he was “just sick of what’s going on down here”, but they would typically make up within the next day or two. (Barr Decl., 103; P291:16-17, P432:20-23.) However, after things did not get any better, Plaintiff approached Falk at the end of the day on April 13, 2018 to tell him that he “can’t do this anymore”. (Barr Decl., 104; P57:6-22, P430:19-22.) Plaintiff and Falk continued talking for two and one-half hours, during which time Plaintiff never told Falk that he was resigning or quitting. (Barr Decl., | 105; P58:15-19.) Later in the conversation Falk told Plaintiff that he would give him what he had promised, so long as Plaintiff turned in a typed resignation letter in which he didn’t write anything negative or derogatory about Defendants. (Barr Decl., 119; P73:10-74:13.) The resignation letter was so important to Falk because of his claim that Plaintiff has “done this before. This is not the first time he’s told me this”, and Falk did not want it to be his word against Plaintiffs in the litigation that Defendants anticipated. (D110:23-111:1, D202:8-11, D204:2-8.) Falk understood that it would be more difficult for Plaintiff to prove his case without a written agreement, because it would be Plaintiffs word against Falk’s word, which is why Falk insisted upon Plaintiff turning in a written resignation letter. (D204:2-8.) After Plaintiff turned in the resignation letter, Falk emailed Defendants’ offer in an attached PDF, but instructed Plaintiff to not open it until Falk could “explain a few things to [him].” (Barr Decl., 1129; P112:1-24, P117:12-15.) Falk suggested that Plaintiff contact him before looking at the severance agreement because he wanted to tell him that “In addition to this agreement, there was going to be another $5,000 a month paid to Mr. Barr on top of this agreement for one year.” (Barr Decl., 130; D232:15-23.) However, the written severance agreement only provided for a one-time payment of $12,000.00, less regular payroll withholdings and authorized and required deductions, and made no mention of the additional $5,000.00 per month. (Barr Decl., 131; P110:24-111:2, D232:24-233:1, D233:9-10, D233:14-21, ASM 00238-244.) Falk did not think that Plaintiff deserved anything, “[Plaintiff] did not deserve one red cent”, “He left, he gets nothing” (D236:3-13), and Falk refused to include the $5,000.00 per month in the written severance agreement because he thought it would make it easy for him to stop paying Plaintiff the $5,000.00, and according to Falk, “[he] was right.” (D237:3-238:14.) If Plaintiff would have known 5 PLAINTIFF'S OPPOSITION TO DEFENDANTS BRUCE FALK’S AND ACTION SALES & METAL CO.’S MOTION FOR SUMMARY ADJUDICATION © 0 39 O N Un BA W N = N N N N N N ND N N m m e m e m e m e m e m e m e m c o NN O N Wn BA W I N D = O O OVO 0 N O N N R A = Oo that Falk wasn’t going to keep his word, he would have done things differently like going out on stress leave and seeking counsel. (Barr Decl., | 124; P369:22-370:4.) III. ARGUMENT The summary judgment procedure is purely statutory and can be employed only in cases where no material issue of fact is presented, the remedy must be used with caution and cannot be used as substitute for normal methods of deciding factual cases. Ontario Downs, Inc. v. Lauppe, 192 Cal.App.2d 697 (3d Dist. May 31, 1961). On a motion for summary judgment, the court does not resolve conflicting factual allegations; the purpose of summary judgment procedure is to discover whether the parties have evidence requiring assessment at a trial. R. D. Reeder Lathing Co. v. Allen, 66 Cal.2d 373 (Cal. Apr. 18, 1967). Even where no single piece of evidence is independently sufficient to support an inference of pretext, the plaintiff may meet its burden at the summary judgment stage based on "the evidence as a whole." Samson v. Wells Fargo Bank, N.A., 777 Fed. Appx. 881, 883 (9th Cir. June 28, 2019) citing Guz v. Bechtel National, Inc., 8 P.3d at 1117 (2000). If a single issue of fact is found, the trial court is powerless to proceed and must allow such issue to be tried. Jos. Schlitz Brewing Co. v. Downey Distributor, 109 Cal. App. 3d 908 2 Dist. Aug. 29, 1980. A. Defendants Are Not Entitled To Summary Adjudication Of Plaintiff’s Tenth Cause Of Action For Breach Of Contract 1. Plaintiff’s Tenth Cause Of Action Is Not Barred By The Doctrine Of Unenforceability Of Indefinite Promises Defendants rely upon Scott v. Pacific Gas & Electric Co., 11 Cal.4™ 454 (1995) in support of their argument that the terms of the promise that Falk made to Plaintiff back in 1997 are too indefinite to be enforceable. (Motion 5:1-7.) The plaintiffs in Scott sued the defendant employer, claiming that it had breached an implied-in-fact contract to not demote their employees without good cause. Scott, 11 Cal.4™ at 458. The evidence showed that the defendant “had adopted a detailed system of ‘Positive Discipline’ that was to apply to all employees, and that was known to them”. Id. at 465. The Scott Court found that there: “was ample evidence from [defendant’s] personnel policy manual, and the testimony of one of [defendant’s] own human resources managers, to support the view that [the defendant’s] employees had a reasonable expectation that the company would follow its own human resources policy, which had as its basic premise the disciplining of its employees only for good cause.” Id. The Scott Court found this evidence not only “substantial, but compelling.” Id. at 465. -6- PLAINTIFF'S OPPOSITION TO DEFENDANTS BRUCE FALK’S AND ACTION SALES & METAL CO.’S MOTION FOR SUMMARY ADJUDICATION © 0 39 O N Un BA W N = N N N N N N ND N N m m e m e m e m e m e m e m e m c o NN O N Wn BA W I N D = O O OVO 0 N O N N R A = Oo According to Defendants, the Scott Court cited with approval to Ladas v. California State Auto Assn., 19 Cal. App.4th 761 (1993) and Rochlis v. Walk Disney Co., 19 Cal. App.4th 201 (1993) in its creation of the doctrine which it dubbed as the “Unenforceability of Indefinite Promises”. (Motion 7:1- 7.). The Ladas Court found unenforceable a defendant insurance company’s alleged promise “to pay commissions comparable to those received by sale agents at other insurance companies”. Id. at 466. The Ladas plaintiff’s claim was based upon the defendant’s employee handbook, which decreed that its company policy was: “to [p]Jrovide employment at a wage which compares favorably with prevailing community rates for similar work under comparable conditions requiring like responsibility, experience, effort and skill”. Id. The Ladas plaintiffs: “conceded that the company had never bound itself to pay its sales representative what agents from other companies were receiving, but merely that evidence of other companies’ compensation was one factor that the company would ‘consider’ in computing its formula for paying commissions.” Id., citing Ladas, 19 Cal.App.4th at 770. The Ladas Court held that: "An amorphous promise to ‘consider’ what employees at other companies are earning cannot rise to the level of a contractual duty...”. Id., citing Ladas, 19 Cal. App.4™ at 771. Likewise, in discussing Rochlis, the Scott Court noted how enforcing terms such as to pay the employee “reasonable salary increases” and “reasonable annual bonuses” and also that the employee would “actively and meaningfully participate in all ... creative activities” were not cognizable as contract claims, because “they are simply too vague and indefinite to be enforceable”. Id. at 472. In summarizing the holdings of Ladas and Rochlis, the Scott Court reiterated how “courts will not enforce vague promises about the terms and conditions of employment that provide no definable standards for constraining an employer's inherent authority to manage its enterprise.” Id. at 473. Defendants also cite to Cheema v. L.S. Trucking, 39 Cal. App. 5th 1142 (2019) in support of their contention that Falk’s promise was too uncertain to be enforceable. (Motion 7:7-9.). There, the defendant trucking company that also operated as a broker of construction trucking services entered into an oral agreement with the plaintiff pursuant to which the plaintiff purchased a dump truck with a detachable box, with the understanding that the defendant would purchase the box from the plaintiff. Cheema, 39 Cal. App.5™ at 1145. The parties entered into a separate rental agreement under which the plaintiff began providing hauling services. Id. at 1145-1146. The parties continued operating under the rental agreement for nine months during which time the defendant made no payments towards the purchase of the box, and evidence submitted by the defendant contradicted the terms to which the plaintiff contended the parties orally agreed. Id.at 1146-1148. The court found that 7 PLAINTIFF'S OPPOSITION TO DEFENDANTS BRUCE FALK’S AND ACTION SALES & METAL CO.’S MOTION FOR SUMMARY ADJUDICATION © 0 39 O N Un BA W N = N N N N N N ND N N m m e m e m e m e m e m e m e m c o NN O N Wn BA W I N D = O O OVO 0 N O N N R A = Oo “given the divergent understandings of the two parties, and the fact that, for almost nine months [the defendant] made no payments consistent with its contention that it was to purchase the box from [the plaintiff] with monthly installments, the court did not err in finding the terms on which [the defendant] was to acquire ownership of the box so uncertain that the loose understanding could not be judicially enforced.” Id. at 1150. Unlike the parties in the cases to which Defendants cite, the Parties here were well aware of all of the material terms of Falk’s original promise. (Plaintiff’s Material Fact Nos. 4-42.). Indeed, the only issue that Defendants are contesting is whether there was a requirement of Plaintiff staying until the age of retirement. (Plaintiff’s Material Fact Nos. 41-42.) Jos. Schlitz Brewing Co. v. Downey Distributor, 109 Cal. App.3d 908 (2" Dist. Aug. 29, 1980) is instructive. There, summary judgment could not properly be granted in favor of a beer manufacturer with respect to a cross-complaint asserting a cause of action against it by a distributor of its beer based on the manufacturer’s alleged breach of its oral contract to permit the distributor to sell its beer distribution rights to a third party Jos. Schlitz Brewing Co., 109 Cal. App.3d at 918. The Schlitz court summarized the allegations as follows: “The gist of these allegations is that over the 19 years of the business relationship between Schlitz and Downey, they arrived at an oral agreement to the effect that Downey had the right to be the wholesale distributor in the Downey area; that this was an assignable right which Downey could sell to a third party for a consideration if the third party was approved by Schlitz; that it was so represented to Downey by authorized personnel of Schlitz; that in addition to such specific oral agreement, there existed an implied covenant that Schlitz would deal with Downey in good faith in carrying out this understanding; that in violation of such oral agreement and representations and the implied covenant to deal with Downey in good faith, Schlitz terminated these rights of Downey at a time when Downey had received an oral offer from one Michaels to purchase Downey's distributorship; that at the time of such termination, Schlitz knew of the offer from Michaels and terminated Downey's rights with the intention to deprive Downey of the consideration which would be received for said distributorship and instead transferred such distributorship to three other distributors of Schlitz, all to the substantial damage of Downey. Id. at 914-915. In denying the plaintiff’s motion, the Schlitz court found that, although the plaintiff's declarations negated the existence of any oral agreements regarding the Downey distributorship, the defendants filed a declaration from an attorney containing “statements from which the contrary can at least be inferred.” Id. at 915. If a single declaration from which a disputed fact regarding whether an oral agreement had been breach could “at least be inferred” was sufficient to survive a motion for summary judgment, Plaintiff’s evidences should be more than sufficient to survive Defendants’ motion for summary adjudication here. -8- PLAINTIFF'S OPPOSITION TO DEFENDANTS BRUCE FALK’S AND ACTION SALES & METAL CO.’S MOTION FOR SUMMARY ADJUDICATION © 0 39 O N Un BA W N = N N N N N N ND N N m m e m e m e m e m e m e m e m c o NN O N Wn BA W I N D = O O OVO 0 N O N N R A = Oo 2 Plaintiff’s Tenth Cause of Action for Breach of Contract Is Not Barred by The Statute of Frauds Defendants’ argument that the Parties’ oral contract is barred by the statute of frauds is wholly lacking in any merit whatsoever. Defendants’ motion for summary adjudication must be directed to the issues raised in the pleadings. Alvis v. County of Ventura, 178 Cal. App. 4th 536, 548 (2009); Laabs v. City of Victorville, 163 Cal. App. 4th 1242, 1253 (2008); Tsemetzin v. Coast Federal Savings & Loan Assn., 57 Cal. App. 4th 1334, 1342 (1997). Furthermore, the applicability of the statute of frauds must be analyzed prospectively; based on the intentions of the parties and the terms of the agreement at the time it is made. Foley v. Interactive Data Corp., 47 Cal.3d 654, 647 (1988). Plaintiff’s evidence shows that Falk made the oral agreement that Plaintiff seeks to enforce through this action on April 13, 2018, as an incentive for Plaintiff to leave and turn in a resignation letter, and that the Parties intended on the contract being fully performed in well under one year’s time from the date of its making. (Plaintiff’s Material Fact Nos. 206-228.) As such, Plaintiff’s tenth cause of action is not barred by the statute of frauds. 3. The Parties’ Agreement Is Not Unlawful Under California Business and Professions Code Section 16600. Plaintiff’s evidence shows that the Parties’ agreement was not contingent upon Plaintiff’s agreeing to not compete with Defendants. (Plaintiffs’ Material Fact Nos. 10-13.) Even if the Parties’ agreement was contingent on Plaintiff’s agreement to mot compete with Defendants after his employment ended, which it was not, California Business and Professions Code section16600 invalidates unlawful provisions in employment contracts prohibiting an employee from working for a competitor after completion of his or her employment, the statute does not invalidate any contract containing a non-compete clause in its entirety as Defendants’ contend. Loral Corporation v. Moyes, 174 Cal. App. 3d 268 (Cal. App. 6th Dist. Nov. 8, 1985), see also Fields v. QSP, Inc.,2012 U.S. Dist. LEXIS 78001 (C.D. Cal. June 4, 2012) (court declined to invalidate an entire employment contract where the paragraphs that unlawfully prohibited the employee from competing could be severed from the remainder of the contract.) As such, Defendants’ argument is without merit and should be rejected by this court. B. Defendants Are Not Entitled To Summary Adjudication Of Plaintiff’s Eleventh Cause Of Action For Fraud Defendants argue that Plaintiff’s fraud claim fails for the same reasons the contract claim fails. As Plaintiff’s contract cause of action remains viable, Defendants’ argument is without merit. 9. PLAINTIFF'S OPPOSITION TO DEFENDANTS BRUCE FALK’S AND ACTION SALES & METAL CO.’S MOTION FOR SUMMARY ADJUDICATION © 0 39 O N Un BA W N = N N N N N N ND N N m m e m e m e m e m e m e m e m c o NN O N Wn BA W I N D = O O OVO 0 N O N N R A = Oo 1. Defendants’ Misrepresentation Was the Cause of Plaintiff’s Harm Plaintiff’s Material Fact Nos. 66-72 show that Defendants’ intentional misrepresentation was the proximate cause of his damages. (Plaintiff’s Material Fact Nos. 66-72.) It is not the function of a motion for summary judgment to test the sufficiency of the pleadings and the fact that a complaint may be in- artfully drawn or repetitious has no bearing on the disposition of the motion. Murphy v. Allstate Ins. Co., 83 Cal. App.3d 38 4" Dist., July 21, 1978), Jang v. State Farm Fire & Casualty Co., 80 Cal. App. 4th 1291 (1st Dist. May 24, 2000). Defendants’ attempt to “elevate form over substance” by putting forth their own self-serving interpretation of Plaintiffs allegations in order to avoid liability “is contrary to the intent that summary judgment should eliminate those causes of action about which the parties have no factual dispute.” Weiss v. Chevron, U. S. A., 204 Cal.App.3d 1094, 1099 (September 30, 1988). 2. The Holding of Hunter v. Upright, Inc., 6 Cal.4" 1174 (1993) Does Not Barr Plaintiff’s Eleventh Cause of Action In Hunter v. Upright, Inc. 6 Cal.4™ 1174 (1993), the Court held that the defendant's misrepresentation inducing the plaintiff to resign was wrongful termination, but no independent fraud claim arose from the misrepresentation because the defendant employed falsehood to do what it would have otherwise accomplished directly, that being terminating the plaintiff's employment. Hunter, 6 Cal.4"™ at 1184. However, the Court also held that “A misrepresentation not aimed at effecting termination of employment, but instead designed to induce the employee to alter detrimentally his or her position in some other respect, might form a basis for a valid fraud claim even in the context of a wrongful termination.” Id. at 1185. Defendants argue in their motion that “the very first thing Plaintiff said to Falk was ‘I can't do this anymore.” These words are tantamount to a resignation.”. (Motion, 10:7-8.) Defendants also argue in their Separate Statement that Plaintiff had already made up his mind to resign on April 10, 2018. (Defendants’ Fact Nos. 8, 15.) Considering Defendants are arguing that Plaintiff had already resigned by the time Falk offered to keep his promise in exchange for Plaintiff turning in a resignation letter, it rings hollow for them to argue here that their misrepresentation was aimed at effectuating Plaintiffs termination of employment as contemplated in Hunter. The resignation letter was so important to Falk because of his claim that Plaintiff has “done this before. This is not the first time he’s told me this”, and Falk did not want it to be his word against Plaintiff’s in the litigation that Defendants anticipated. (Plaintiff’s Material Fact No. 221.) Falk understood that it would be more difficult for Plaintiff to prove his case without a written agreement, because it would be Plaintiff’s word against Falk’s word, which is why Falk insisted upon Plaintiff -10- PLAINTIFF'S OPPOSITION TO DEFENDANTS BRUCE FALK’S AND ACTION SALES & METAL CO.’S MOTION FOR SUMMARY ADJUDICATION © 0 39 O N Un BA W N = N N N N N N ND N N m m e m e m e m e m e m e m e m c o NN O N Wn BA W I N D = O O OVO 0 N O N N R A = Oo turning in a written resignation letter. (Plaintiff’s Material Fact No. 20.) Falk’s misrepresentation was therefore not aimed at effectuating Plaintiff’s termination, it was aimed at having Plaintiff detrimentally change his position in reliance thereupon. Indeed, Defendants are in fact arguing here that Plaintiff is not entitled to 10% of their inventory because he resigned before he reached the age of retirement, and they are submitting the resignation letter as proof in support thereof. As such, Defendants’ argument is without merit and should be rejected by this court. C. Defendants Are Not Entitled To Summary Adjudication Of Plaintiff’s Third and Fifth Causes Of Action For Violations Of California Labor Code §§ 1101-1102 Defendants fail to cite to a single case supporting their contention that Plaintiff’s third and fifth causes of action must be dismissed. Plaintiff testified that Action Sales did not have any written policies or rules that prevented him from supporting President Trump. (P215:1-8.) However, it is irrelevant that Defendants did not have any written policies or rules preventing Plaintiff from supporting President Trump, as “[t]he matter of publication is a false issue”. Lockheed Aircraft Corp. v. Superior Court of Los Angeles County, 28 Cal.2d 481, 485 (Cal. June 26, 1946). As the statute does not designate whether the rules or policies have to be written, “evidence of publication or lack of publication is material only insofar as it may tend to prove or disprove the existence of any such rule or policy.” Id. Labor Code sections 1101 and 1102 “serve to protect ‘the fundamental right of employees in general to engage in political activity without interference by employers.’" Gay Law Students Assn. v. Pacific Tel. & Tel. Co., 24 Cal. 3d 458, 487 (Cal. May 31, 1979), and “[t]hese statutes cannot be narrowly confined to partisan activity. /d. “The term ‘political activity’ connotes the espousal of a candidate or a cause, and some degree of action to promote the acceptance thereof by other persons”. Id. For example, the Supreme Court has recognized the political character of activities such as participation in litigation, the wearing of symbolic arm bands, and the association with others for the advancement of beliefs and ideas.” Id. As Plaintiff’s Material Facts show that Falk prevented him from expressing his political opinions regarding his support for President Trump in the workplace (Plaintiff’s Material Fact Nos. 103-112), Defendants are not entitled to summary adjudication of Plaintiff’s third and fifth Causes of Action. D. Defendants Are Not Entitled To Summary Adjudication Of Plaintiff’s First, Second and Fourth Causes Of Action 1. Plaintiff First Cause Of Action Alleges Violations Of Government Code § 12940(h), Not Government Code § 12940(a) Defendants argue that “Plaintiff’s First Cause of Action for Discrimination in Violation the Fair Employment and Housing Act (“FEHA”) against Defendants fails because” Plaintiff: (1) is not a -11- PLAINTIFF'S OPPOSITION TO DEFENDANTS BRUCE FALK’S AND ACTION SALES & METAL CO.’S MOTION FOR SUMMARY ADJUDICATION © 0 39 O N Un BA W N = N N N N N N ND N N m m e m e m e m e m e m e m e m c o NN O N Wn BA W I N D = O O OVO 0 N O N N R A = Oo member of a protected class under FEHA (Motion 12:13-13:1); (2) lacks standing to bring a cause of action for discrimination against Hispanics, Asians, “gay persons” (Motion 13:3-4); and (3) does not have a prima facie case for constructive discharge. (Motion 14:1-19.) Defendants also argue that evidence of any employment actions prior to September 28, 2017 is barred by the applicable statute of limitations. (Motion 16:1) However, Defendants’ motion for summary adjudication must be directed to the issues raised in the pleadings. Alvis v. County of Ventura, 178 Cal. App. 4th 536, 548 (2009); Laabs v. City of Victorville, 163 Cal. App. 4th 1242, 1253 (2008); Tsemetzin v. Coast Federal Savings & Loan Assn., 57 Cal. App. 4th 1334, 1342 (1997). Here, Plaintiffs first cause of action is for Defendants’ alleged violations of Government Code § 12940(h), which makes it an unlawful employment practice: “For any employer, labor organization, employment agency, or person to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part.”. (FAC pg. 7:24-9:15; Cal. Gov. Code § 12940(h).) As such, Defendants’ arguments that are directed towards claims for discrimination under Section 12940(a) are irrelevant and should be disregarded by this court. a) Plaintiff Need Not Establish That He Was A Member of a Protected Class to Establish Standing to Maintain His First Cause of Action In order to establish a prima facie case of retaliation under the FEHA, a plaintiff must show (1) he or she engaged in a ‘protected activity’, (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer's action. Yanowitz v. L'Oreal USA, Inc., 36 Cal.4th 1028, 1042 (2005). The element of being a member of a protected class is not present in a claim for retaliation under FEHA; rather, Plaintiff must show that he engaged in a protected activity. Id. As FEHA does not require Plaintiff to be member of a protected class in order to maintain his retaliation claim, Defendants’ argument that Plaintiff lacks standing because he is “a Caucasian, heterosexual, man” is without merit and should be rejected by this court. b) Plaintiff’s First Cause of Action is Not Dependent Upon Plaintiff Establishing a Prima Facie Case for Constructive Discharge Defendants next argue that Plaintiff’s first cause of action must fail because Plaintiff cannot show that he was constructively discharged. (Motion 14:1-18). Defendants’ argument is misplaced, however, as Plaintiff is not required to establish that he was constructively discharged in order to maintain his first cause of action. Id. Rather, Plaintiff must establish that Defendants subjected him to 9 PLAINTIFF'S OPPOSITION TO DEFENDANTS BRUCE FALK’S AND ACTION SALES & METAL CO.’S MOTION FOR SUMMARY ADJUDICATION © 0 39 O N Un BA W N = N N N N N N ND N N m m e m e m e m e m e m e m e m c o NN O N Wn BA W I N D = O O OVO 0 N O N N R A = Oo an “adverse employment action”. Id. Plaintiff alleges that “Defendants” conduct in stripping him of his authority and creating a hostile working environment aimed at forcing Plaintiff out of the company constitutes an adverse employment action and represented a materially adverse change in Plaintiff’s employment terms, conditions and privileges.” (FAC {42). As Plaintiff alleges that Defendants’ conduct in stripping Plaintiff of his authority and creating a hostile working environment constitutes the “adverse employment action”, it is irrelevant whether Plaintiff can establish that he was constructively discharged for the purposes of maintaining his first cause of action. As such, Defendants’ arguments are without merit and should be rejected by this court. c) Plaintiff’s Evidence Is Not Barred by FEHA’s Statute of Limitations Defendants next argue that Plaintiff’s first cause of action is barred by FEHA’s statute of limitations. (Motion 13:16-18.) Government Code section 12993(a) states that the provisions of FEHA “shall be construed liberally for the accomplishment of the purposes thereof." (Cal. Gov. Code § 12993(a).) “This liberal construction extends to interpretations of the FEHA's statute of limitations”. Richards v CH2M Hill, Inc., 26 Cal.4th 798, 819 (2001). "In order to carry out the purpose of the FEHA to safeguard the employee's right to hold employment without experiencing discrimination, the limitations period set out in the FEHA should be interpreted so as to promote the resolution of potentially meritorious claims on the merits." Id., quoting Romano v. Rockwell Internat. Inc., 14 Cal. 4th 479, 493-494 (1996). Under the "continuing violation doctrine", Plaintiff may rely upon conduct occurring outside the limitations period if: (1) the actions are sufficiently similar in kind; (2) the actions occur with sufficient frequency; and (3) the actions have not acquired a degree of “permanence” so that employees are on notice that further, informal conciliation efforts with the employer to gain accommodation or end harassment would be futile. Id. at 802. According to Defendants, Plaintiff’s only alleged adverse employment action is that Defendants had taken job duties away from him in 2016. (Motion 13:16-18.) Defendants further argue that Plaintiff’s First Cause of Action is barred by the statute of limitations because his “pay remained the same”. (Motion 13:16-18.) Defendants are again mistaken, however, as Plaintiff’s Material Facts show that Defendants had been engaging in a pattern and practice of retaliatory and harassing treatment of Plaintiff since 2015. (Plaintiff’s Material Fact Nos. 69-195.) With regards to his job duties being taken away, Plaintiff’s Material Facts show that Falk had been taking Plaintiff’s job duties away from him over a period of time lasting two years. (Plaintiff’s Material Fact No. 82-88.) Plaintiff’s Material Facts also show that Defendants had been reducing Plaintiff’s compensation since 2016. (Plaintiff’s Material -13- PLAINTIFF'S OPPOSITION TO DEFENDANTS BRUCE FALK’S AND ACTION SALES & METAL CO.’S MOTION FOR SUMMARY ADJUDICATION © 0 39 O N Un BA W N = N N N N N N ND N N m m e m e m e m e m e m e m e m c o NN O N Wn BA W I N D = O O OVO 0 N O N N R A = Oo Fact No. 96.) Although Defendants did not cut Plaintiff’s base salary, they significantly decreased the amount Plaintiff received in bonuses. (Plaintiff’s Material Fact No. 97.) In 2015, Plaintiff received $70,000.00 in bonuses, which was reduced in 2016 to $50,000.00, and reduced again in 2017 to $42,000.00. (Plaintiff’s Material Fact No. 98.) These actions are sufficiently similar in kind and occurred with sufficient frequency for the purposes of the continuing violation doctrine. Even though Plaintiff’s Material Facts show that Defendants took Plaintiff’s job duties away and reduced his compensation within the limitations period, Plaintiff’s Material Facts also show that Defendants’ actions occurring outside of the limitations period had not acquired a degree of “permanence” to put Plaintiff on notice that further, informal conciliation efforts with Defendants to end harassment would be futile. When the Parties would have heated arguments in the past, Plaintiff would tell Falk that he was “just sick of what’s going on down here”, but they would typically make up within the next day or two. (Plaintiff’s Material Fact No. 196.) Plaintiff thought the Parties would resolve this argument in the same manner. (Plaintiff’s Material Fact No. 197.) However, after things did not get any better, Plaintiff approached Falk at the end of the day on April 13, 2018 to tell him that he “can’t do this anymore”. (Plaintiff’s Material Fact No. 198.) Plaintiff initiated the April 13, 2018 conversation with Falk as a result of “a culmination of all these things piling up”, and Plaintiff “wanted to talk it out and really tell [Falk] how [he] was feeling”. (Plaintiff’s Material Fact No. 204.) However, Falk refused to make any changes after hearing Plaintiff’s complaints. (Plaintiff’s Material Fact Nos. 206-210, 217.) Defendants’ actions therefore did not acquire a degree of “permanence” to put Plaintiff on notice until April 13, 2018. Defendants’ argument that Plaintiffs first cause of action is barred by FEHA’s statute of limitation should therefore be rejected by this court. 2. Defendants Are Not Entitled To Summary Adjudication Of Plaintiff’s Second Cause Of Action For Violations Of California Government Code § 12940(j) a) Plaintiff Has Standing to Maintain His Second Cause of Action Defendants cite to Thompson v. City of Monrovia, 186 Cal. App.4th 860 (2010) in support of their argument that Plaintiff lacks standing to pursue his second cause of action.” (Motion 13:3-4). Defendants’ reliance upon Thompson in support of their standing argument is misplaced, as the court in Thompson never reached a decision on the issue of whether the plaintiff had standing. Thompson, 186 Cal.App.4th at 877-878. The plaintiff in Thompson was a white police office who sued the defendant police department for “harassment and hostile work environment arising from offensive remarks and 2 Defendants’ fail to provide any authority whatsoever in support of their argument that Plaintiff lacks standing to pursue his second cause of action as it pertains to Defendants’ sexually harassing conduct, presumably because not such authority exists. (See Cal. Gov. Code § 12940(h).) Ad PLAINTIFF'S OPPOSITION TO DEFENDANTS BRUCE FALK’S AND ACTION SALES & METAL CO.’S MOTION FOR SUMMARY ADJUDICATION © 0 39 O N Un BA W N = N N N N N N ND N N m m e m e m e m e m e m e m e m c o NN O N Wn BA W I N D = O O OVO 0 N O N N R A = Oo behavior directed at an African American colleague”. Id. at 860. The plaintiff also sued for retaliation for the officer's reports of the misconduct, and failure to investigate his harassment and retaliation claims.” Id. The court in Thompson stated that, unless the plaintiff could show that he was “‘subjected to unwelcome racial comments’ or any other harassing conduct ‘as a result of [his] association with or advocacy for protected employees’”, “a substantial question exists as to whether he has standing to bring a hostile environment claim”. Id. at 877. However, the Thompson court “put[] aside questions of standing” and found that the plaintiff’s claim failed because he failed to produce evidence that he was subjected to harassment because of his association with or advocacy with members of a protected group. Id. at 878. Under Thompson, Plaintiff has standing to maintain his second cause of action as it relates to Defendants’ racist conduct so long as the evidence shows that Plaintiff was subjected to unwelcome racial harassing conduct as a result of his association with or advocacy for protected employees. Id. “In a workplace harassment suit ‘the plaintiff need not prove that his or her tangible productivity has declined as a result of the harassment. It suffices to prove that a reasonable person subjected to the discriminatory conduct would find, as the plaintiff did, that the harassment so altered working conditions as to make it more difficult to do the job.”” (Cal. Gov. Code 12923(a)). “A single incident of harassing conduct is sufficient to create a triable issue regarding the existence of a hostile work environment if the harassing conduct has unreasonably interfered with the plaintiff’s work performance or created an intimidating, hostile, or offensive working environment.” (Cal. Gov. Code 12923(b)). In Galvan v. Dameron Hospital Assn. 37 Cal. App. 5th 549 (June 20, 2019), the court found the plaintiff’s national-origin harassment claim cognizable where the Plaintiff produced evidence that the defendant’s supervisory employee: (1) consistently demeaned the plaintiff and the other Filipino unit coordinators; (2) made fun of their accents and told them that they “did not know how to formulate a sentence and said that her young son could write better than they could”; (3) attempted to humiliate them because of their accent in front of co-workers; and (4) told other employees that she intended on firing the plaintiff, and word of her plan made it back to the plaintiff. Galvan, 37 Cal. App.5" at 560- 561, see also Ortiz v. Dameron Hospital Assn., 37 Cal. App.5th 568 (June 20, 2019) (Discrimination on the basis of an employee's foreign accent is a sufficient basis for finding national origin discrimination.) Plaintiff’s Material Facts are nearly identical to those in Galvan and Ortiz. They show that Falk would talk to Hispanic customers in a belittling manner, as if Hispanic customers were ignorant. (Plaintiff’s Material Fact No. 158.) Falk was also routinely demeaning towards Hispanic customers, which especially bothered Plaintiff because his wife is Hispanic. (Plaintiff’s Material Fact No. 157.) -15- PLAINTIFF'S OPPOSITION TO DEFENDANTS BRUCE FALK’S AND ACTION SALES & METAL CO.’S MOTION FOR SUMMARY ADJUDICATION © 0 39 O N Un BA W N = N N N N N N ND N N m m e m e m e m e m e m e m e m c o NN O N Wn BA W I N D = O O OVO 0 N O N N R A = Oo Falk also attempted to humiliate customers by having one of his employees translate what he was saying into English, even though the customer spoke English. (Plaintiff’s Material Fact No. 161-165.) Falk also charged Hispanic customers higher prices if they did not speak English, and he would get upset at Plaintiff and ask him why he wasn’t charging Hispanic customers more. (Plaintiff’s Material Fact No. 167-179.) Falk would even raise the prices for metal for Hispanic customers after Plaintiff had already told the customers the price, in order to antagonize Plaintiff. (Plaintiff’s Material Fact Nos. 167-179.) Plaintiff was also the go-between person with customers for a lot of issues that arose as a result of Falk’s inappropriate behavior. (Plaintiff’s Material Fact No. 113.) Plaintiff would have to diffuse situations after customers had bad experiences with Falk, and it was tiresome for Plaintiff to keep having to explain Defendants’ inappropriate behavior to customers. (Plaintiff’s Material Fact No. 114.) Those types of situations made it harder for Plaintiff to perform his job. (Plaintiff’s Material Fact Nos. 139.), Plaintiff’s evidence also shows that Falk had formulated a plan with two other employees to force him out of the company, and that plan made its way back to Plaintiff. (Plaintiffs Material Fact Nos. 69-77.) “The existence of a hostile work environment depends upon the totality of the circumstances and a discriminatory remark, even if not made directly in the context of an employment decision or uttered by a non-decisionmaker, may be relevant, circumstantial evidence of discrimination” (Cal. Gov. Code 12923(c)), and “[h]arassment cases are rarely appropriate for disposition on summary judgment.” (Cal. Gov. Code 12923(d) (affirming the decision in Nazir v. United Airlines, Inc., 178 Cal.App.4th 243 (2009) and its observation that hostile working environment cases involve issues “not determinable on paper.”). Plaintiff’s evidence is sufficient to establish his standing to pursue his second cause of action as it relates to Falk’s harassment of Hispanic people. And, although Defendants have put forth no evidence or authority in support of their contention that Plaintiff somehow lacks standing to pursue his second cause of action as it relates to Falk’s sexual harassment, Plaintiff has in fact provided sufficient evidence in support of that claim as well. (Plaintiffs Material Fact Nos. 115-142.) As such, Defendants’ argument is without merit and should be rejected by this court. b) Plaintiff’s Evidence of Harassment Is Not Time Barred For the same reasons that Plaintiff’s evidence in support of his first cause of action is not time barred, Plaintiff’s evidence in support of his second cause of action is not time barred. (See § I(D)(1)(c) above.) In spite of Defendants’ best efforts to dismiss Plaintiff’s evidence, Plaintiff’s evidence is sufficient to maintain his second cause of action for hostile work environment. (See § III(D)(2)(a) above; see also Plaintiffs Material Fact Nos. 115-142.) Falk agrees that discussing the size of a customer’s genitalia is despicable conduct that should not be tolerated in the working place, and that -16- PLAINTIFF'S OPPOSITION TO DEFENDANTS BRUCE FALK’S AND ACTION SALES & METAL CO.’S MOTION FOR SUMMARY ADJUDICATION © 0 39 O N Un BA W N = N N N N N N ND N N m m e m e m e m e m e m e m e m c o NN O N Wn BA W I N D = O O OVO 0 N O N N R A = Oo it would be against Action Sales’s harassment policy for an employee to ask a customer about their penis size. (Plaintiff’s Material Fact No. 141.) However, Plaintiff’s evidence shows that Falk brought up the topic of penis size with Sal Jimenez from West Coast Ship Supply on multiple occasions starting in 2017. (Plaintiff’s Material Fact Nos. 130, 133.) It was very uncomfortable for Plaintiff to have to smooth things over with West Coast Ship Supply. (Plaintiff’s Material Fact No. 141.) c) Plaintiff’s Second Cause of Action is not Pre-empted by the Workers’ Compensation Act Employee claims for emotional injury are not pre-empted by the Workers’ Compensation Act when the employer’s conduct contravenes fundamental public policy, or when the employer’s conduct exceeds the risks inherent in the employment relationship. Livitsanos v. Superior Court, 2 Cal.4th 744, 754 (1992). Being subjected to racially and sexually inappropriate harassment in the workplace is outside of the inherent risks in the employment relationship, and Defendants’ alleged conduct contravenes fundamental public policy. (Cal. Gov. Code §§ 12920 & 12923.) As such, Plaintiff’s second cause of action is not preempted by the Workers” Compensation Act. Bs Defendants Are Not Entitled To Summary Adjudication Of Plaintiff’s Fourth Cause of Action For Wrongful Termination In Violation Of Public Policy Defendants argue that Plaintiff’s fourth cause of action fails because of their contention that “Plaintiff was not fired; he quit”, and “resignation of employment alone does not constitute an adverse employment action.” (Motion 14:1-14.) However, as stated in Turner v Anheuser-Bush, Inc., 7 Cal 4" 1238 (1994): “In an attempt to avoid liability [for wrongfully discharging an employee], an employer may refrain from actually firing an employee, preferring instead to engage in conduct causing him or her to quit. The doctrine of constructive discharge addresses such employer-attempted ‘end runs’ around wrongful discharge and other claims requiring employer-initiated terminations of employment. Constructive discharge occurs when the employer's conduct effectively forces an employee to resign. Although the employee may say, ‘I quit,” the employment relationship is actually severed involuntarily by the employer's acts, against the employee's will. As a result, a constructive discharge is legally regarded as a firing rather than a resignation. [Citation.]” Turner, 7 Cal.4" at 1244-1245. Relying on Turner, the Third District Court of Appeal held in Galvan that evidence of racial harassment very similar to what Plaintiff has submitted would allow a reasonable trier of fact to find that they were constructively discharged. (See §III(D)(2)(a) above.) Plaintiff has also submitted substantial evidence showing that Falk created a working environment permeated with sexual harassment of both men and women. (Plaintiffs Material Fact Nos. 115-142.) The evidence also shows that when Plaintiff -17- PLAINTIFF'S OPPOSITION TO DEFENDANTS BRUCE FALK’S AND ACTION SALES & METAL CO.’S MOTION FOR SUMMARY ADJUDICATION © 0 39 O N Un BA W N = N N N N N N ND N N m m e m e m e m e m e m e m e m c o NN O N Wn BA W I N D = O O OVO 0 N O N N R A = Oo approached Falk to discuss how Falk had once again raised the prices for one of Plaintiff’s Hispanic customers while Plaintiff was on vacation, Falk told Plaintiff that “It was so nice when you weren’t here. All the employees were happy. Nobody here likes you”. (Plaintiffs Material Fact No. 185.) This reaffirmed Plaintiff’s belief that Falk was trying to push him out of the company, and Plaintiff knew that something had to change. (Plaintiffs Material Fact No. 187.) This evidence is sufficient to allow a reasonable trier of fact to find that he was constructively discharged. Defendants are therefore not entitled to summary adjudication of Plaintiff’s fourth cause of action. E. Defendant Falk Is Not Entitled To Summary Adjudication Of Plaintiff’s First, Third, Fourth, Fifth and Tenth Causes Of Action 1. Falk May Be Held Liable Under Plaintiff’s First & Fourth Causes Of Action As described above in Section III(D)(1), Plaintiff’s First Cause of Action is for alleged violations of Government Code section 12940(h), not 12940(a) as Defendants argue. Defendants reliance upon Reno v. Baird, 18 Cal.4th 640 (1998) is therefore misplaced, as “[it] is “well established that Reno concerns FEHA discrimination claims”, not FEHA retaliation or harassment claims. Martinez v. Michaels, 2015 U.S. Dist. LEXIS 92180 at *25 (Cal. Central Dist. July 15, 2015). As Plaintiff’s First Cause of Action is for retaliation under Section 12940(h), not for discrimination under Section 12940(a), Reno does not apply. Id. Defendants reliance upon Jones v. Torrey Pines, 42 Cal.4th 1158 is likewise misplaced, as the Jones Court specifically excluded the issue currently before this court from its ruling. Id. at 1168, fn. 4. “Because the issue is not presented, we express no opinion on whether an individual who is personally liable for harassment might also be personally liable for retaliating against someone who opposes or reports that same harassment.” Id Furthermore, Leek v. Cooper, 194 Cal.App.4th 399 (April 15, 2011) does not stand for Defendants’ notion that “the only way an individual shareholder can be liable for discrimination, retaliation, wrongful termination or other personnel actions taken by the company is by proving an alter ego theory of liability.” (Motion 20:1-3.) Leek was “a pleading case masquerading as a summary judgment case.” Leek, 194 Cal.App.4th at 405. There, former employees sued their former corporate employer and also its sole shareholder for discrimination in violation of Government Code section 12940(a). Id. at 405. The plaintiffs sought leave to amend their complaint in order to allege an alter ego theory of liability in connection with their opposition to the individual defendant’s motion for summary judgment. Id. at 406. The plaintiffs “offered the facts tendered in opposition to the motion for summary -18- PLAINTIFF'S OPPOSITION TO DEFENDANTS BRUCE FALK’S AND ACTION SALES & METAL CO.’S MOTION FOR SUMMARY ADJUDICATION © 0 39 O N Un BA W N = N N N N N N ND N N m m e m e m e m e m e m e m e m c o NN O N Wn BA W I N D = O O OVO 0 N O N N R A = Oo judgment as grounds justifying an amendment”, which related to the level of control the individual defendant exerted over the plaintiffs. Id. The Leek court found the granting of the individual defendant’s motion for summary judgment appropriate, because “the facts, if true, did not establish [individual defendant’s] liability as an alter ego of the corporation.” Id. Leek therefore addressed the very narrow issue not present here of whether a plaintiff may prevail on an alter ego theory of recovery for the purposes of establishing an individual defendant’s liability for discrimination under FEHA by showing that the individual defendant exerted a sufficient level of control over the employees. Id. 2, Falk May Be Held Liable Under Plaintiff’s Third & Fifth Causes Of Action Defendants unsupported argument that only an “employer” and not an “individual” or “person” can be held personally liable under Labor Code Sections 1101-1102 should be rejected by this court. IWC Wage Order 4-2001 § 2(H) defines “Employer” as meaning “any person as defined in Section 18 of the Labor Code who directly or indirectly, or through an agent or any other person, employs or exercises control over the wages, hours, or working conditions of any person.” (IWC Wage Order 4- 2001 § 2(H).) Labor Code section 18 defines “Person” as meaning “any person, association, organization, partnership, business trust, limited liability company, or corporation.” (Cal. Lab. Code § 18.) Therefore, Falk, qualifies as an Employer under IWC Order 4-2001§ 2(H). While the California Supreme Court ruled Reynolds v. Bement, 36 Cal. 4th 1075 (2005) that the Wage Order’s definition of “Employer” could not be imposed in order to hold officer and directors personally liable for unpaid wages under Labor Code sections 1194 and 510, it recognized that corporate directors may be held “jointly liable with the corporation and may be joined as defendants if they personally directed or participated in the tortious conduct.” Id. at 1090. “‘Their liability...stems from their own tortious conduct, not from their status as directors or officers of the enterprise.” Id. quoting Carlesimo v. Schwebel, 87 Cal.App.2d 482, 503. “Director status therefore neither immunizes a person from individual liability nor subjects him or her to vicarious liability.” (Id. at 505.) Defendants’ argument should therefore be rejected by this court. 3. Falk May Be Held Liable Under Plaintiff’s Tenth Cause Of Action United States Liab. Ins. Co. v. Haidinger-Hayes, Inc. 1 Cal.3d 586 (1970) does not stand for Defendants’ notion that officers and directors can never be personally liable for contracts that they enter into on behalf of the company. Rather, that case held that “Directors and officers are not personally liable on contracts signed by them for and on behalf of the corporation unless they purport to bind themselves individually. United States Liab. Ins. Co., 1 Cal.3d at 595. United States Liab. Ins. Co. is -19- PLAINTIFF'S OPPOSITION TO DEFENDANTS BRUCE FALK’S AND ACTION SALES & METAL CO.’S MOTION FOR SUMMARY ADJUDICATION © 0 39 O N Un BA W N = N N N N N N ND N N m m e m e m e m e m e m e m e m c o NN O N Wn BA W I N D = O O OVO 0 N O N N R A = Oo therefore distinguishable, as that case addressed the situations under which an officer or director may be held personally liable on written “contracts signed by them for and on behalf of the corporation.” Id. Here, there is no written contract signed by Falk specifically stating that Action Sales was the only contracting party. Plaintiff even asked Falk to put his promise into writing “time and time again” over the years, but Falk always responded with “Don’t worry, /’// never screw you”, and “have I ever screwed you?” (Plaintiff’s Material Fact No. 19.) Also, according to Falk, he told Plaintiff the same thing every time Plaintiff asked about the promise: “If you work until normal retirement age, 65, [Plaintiff] gets what I promised him.” (D111:10-14.) Falk also made Plaintiff acknowledge that he had always kept his word with him, which is why Plaintiff thought everything was fine. (Plaintiff’s Material Fact No. 224.) Plaintiff would not have agreed to turn in a resignation letter without Falk’s assurances that he was going to honor his promise. (Plaintiff’s Material Fact No. 232.) Furthermore, Falk isn’t even questioning that there was an agreement between him and Plaintiff. (Plaintiff’s Material Fact Nos. 41-42.) When asked whether there was any reason why he wouldn’t have wanted to put the agreement into writing, Falk testified that “Nothing comes to mind. [intended to honor the agreement. I honor all my agreements.” (D108:18-21.) As Falk purported to bind himself, he may be held liable under Plaintiff’s tenth cause of action. IV. CONCLUSION For the reasons set forth herein, as well as contained in Plaintiff’s Opposing Separate Statement, Defendants’ motion should be denied in its entirety. Dated: April 24, 2020 Respectfully submitted, SZMANDA LAW GROUP, P.C. By: 3 oh A Brett Szmanda Attorney for Plaintiff Jeffrey Barr -20- PLAINTIFF'S OPPOSITION TO DEFENDANTS BRUCE FALK’S AND ACTION SALES & METAL CO.'S MOTION FOR SUMMARY ADJUDICATION
