Reply_to_plaintiffs_opposition_to_defendants_motion_for_summary_judgmentReplyCal. Super. - 2nd Dist.July 25, 2018Li eb er t Ca ss id y W h i t m o r e A Pr of es si on al La w Co rp or at io n 6 0 3 3 W e s t C e n t u r y B o u l e v a r d , 5t h Fl oo r Electronically FILE Lo s A n g e l e s , Ca li fo rn ia 9 0 0 4 5 ~N O N wn A W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 21 28 D by Superior Court of California, County of Los Angeles on 07/17/2020 02:47 PM Sherri R. Carter, Executive Officer/Clerk of Court, by L. Herceg,Deputy Clerl Mark H. Meyerhoff, Bar No. 180414 mmeyerhoff @lcwlegal.com James E. Oldendorph, Bar No. 230556 joldendorph@Icwlegal.com Antwoin D. Wall, Bar No. 289413 awall@]cwlegal.com LIEBERT CASSIDY WHITMORE A Professional Law Corporation 6033 West Century Boulevard, 5th Floor Los Angeles, California 90045 Telephone: ~~ 310.981.2000 Facsimile: 310.337.0837 Attorneys for Defendants CITY OF MONTEREY PARK, TIM SHAY, DIA KHUU, MAGGIE POON, PATRICIA CRUZ, RAQUEL RICHARDS (erroneously sued as “Racquel Richards”), CRISTINA CASTILLO (erroneously sued as “Christina Castillo”), and ROBERT AGUIRRE SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF LOS ANGELES BETTY LU, Case No.: EC068865 Plaintiff, [ASSIGNED FOR ALL PURPOSES TO HON. JOHN KRALIK, DEPT. B] V. Complaint Filed: July 25, 2018 CITY OF MONTEREY PARK, A TAC Filed: August 15, 2019 PUBLIC ENTITY, TIM SHAY, DIA KHUU, MAGGIE POON, PATRICIA CRUZ, RACQUEL RICHARDS, CHRISTINA CASTILLO, ROBERT DEFENDANTS’ REPLY TO PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, OR IN THE AGUIRRE and DOES 1 through 50, ALTERNATIVE, SUMMARY ADJUDICATION Defendants. Date: July 24, 2020 Time: 8:30 a.m. Dept. B Trial Date: None (*Exempt from filing fees pursuant to Gov. Code, § 6103.) 1 Defendants’ Reply to Plaintiff’s Opposition to Defendants’ Motion for Summary Judgment 9323340.1 MO110-151 Li eb er t Ca ss id y W h i t m o r e A Pr of es si on al La w Co rp or at io n 6 0 3 3 W e s t C e n t u r y B o u l e v a r d , 5t h Fl oo r Lo s A n g e l e s , Ca li fo rn ia 9 0 0 4 5 ~N O N wn A W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 21 28 Page LL INTRODUCTION ws 5555.55 mss sss aos ssw 5.255575 £50555 505 5655555 £5555 55.0. 6555755 £5555 45.5 R535357 S453 508.4555 6 IL. LEGAL ARGUMENT ......oitiiiiiitiiintee cece sate sae sae st ese ene 6 A. PLAINTIFF'S PROCEDURAL AND EVIDENTIARY DEFICIENCIES... ooo sete eters ee sree eee eres seas 6 1. Defendants’ Extensive Evidence is Ignored by Plaintiff ............................. 6 2. Plaintiff Failed to File Any Evidence in Support of the OPPOSITION ......einieieie cite eters eects sae seers sabe eae esas snes sane eines 7 3. The Opposition to Defendants’ Separate Statement Has Fatal FIaWS ......ccooiiiiiiiiiiiic ccc 8 4. Plaintiff’s Additional Undisputed Facts are Deficient.........c..ccoceevueruennnnnee. 9 5. Plaintiff Failed to Oppose Adjudication of the Second Cause OF ACTION etic cece eters ese eae eee sae sane ees 9 6. Plaintiff Untimely Served the Opposition Papers...........ccccccecvevvieniccneennen. 9 B. PLAINTIFF FAILED TO EXHAUST ADMINISTRATIVE RE NBIOITIEScesersessoossossseses HS ES EES A EE SR 10 C. FEHA VIOLATIONS PRIOR TO JULY 19, 2017 ARE UNTIMELY oose sects see eects sree sane ees 10 I. Argument Re Tolling of the Statute of Limitations is MISPIACE center ee eee ereeeeeees re esr ee se ee eee 10 2. Plaintiff’s “Continuing Violation” Argument Fails..........cccccocevvineinennene 11 D. PLAINTIFF CANNOT ESTABLISH A PRIMA FACIE CASE OF DISABILITY HARASSMENT OR DISCRIMINATION ......cccccoveiiuieiinieniennenn 12 E. PLAINTIFF CANNOT ESTABLISH A PRIMA FACIE CASE OF FAILURE TO PREVENT DISCRIMINATION AND HARASSMENT ooteee reese eee eres sree sane ees 13 F. PLAINTIFF CANNOT ESTABLISH A PRIMA FACIE CASE FOR FAILURE TO ENGAGE IN THE INTERACTIVE PROCESS ccc secretes sree eee eects sree sane ees 14 G. LEGITIMATE BUSINESS REASONS FOR THE ADVERSE ACTIONS ceeetcetera eects sree sabe cetera sree sane enae es 15 TABLE OF CONTENTS 2 Defendants’ Reply to Plaintiff’s Opposition to Defendants’ Motion for Summary Judgment 9323340.1 MO110-151 Li eb er t Ca ss id y W h i t m o r e A Pr of es si on al La w Co rp or at io n 6 0 3 3 W e s t C e n t u r y B o u l e v a r d , 5t h Fl oo r Lo s A n g e l e s , Ca li fo rn ia 9 0 0 4 5 ~N O N wn A W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 21 28 TABLE OF AUTHORITIES Page(s) Federal Cases Lelaind v. City and County of San Francisco (N.D.Cal. 2008) 576 F.SUPP.2d 1079 ...ueieiieeeie eee ee 13 State Cases Ahrens v. Sup.Ct. (Pacific Gas & Elec. Co.) (1988) 197 CalAPD. I 1 13 ; sss snsoson is sumsns ssman onsmwssss oe555m.00 5855555 5557555045 5555575 5055545 505750558 SH33 55549 50555 8 Avila v. Continental Airlines, Inc. (2008) 165 Cal. APP.Ath 1237 eee saae sabes sees bee sbae een 14 Barton v. Elexsys (1998) 62 Cal. APP.ALh T182 eee eee eet steer eee sb ee sateenbe eee eeees 7 Bozzi v. Nordstrom, Inc. (2010) 186 Cal. APPA 755 oon sabes t ee ste seas ene esseesaee ees 10 Brown v. City of Sacramento (2019) 37 Cal ADPP.5T 587 oo eee eee en ens 11 College Hosp., Inc. v. Sup.Ct. (Crowell) (1994) 8 CallAth TOA .....o oe eee eee ete sates sabe e esate esate ee sabe ee saaes 13 Doe v. Dept. of Corrections (2019) 43 CaALAPP.ST 721 o.oo eee en ens 14 Hurley Const. Co. v. State Farm Fire & Cas. Co. (1992) 10 Cal APP.Ath 533 ens teeters sbeebs sabe e tee bee sabe sabe eneeenseas 9 Jumaane v. City of Los Angeles (2015) 241 CalAPDP.A™ 1390 ....voeeeieeeerieieeeeretet cr er sree eves seve besser tesse ae ss esse se erensenas 12 Lewis v. County of Sacramento (2001) 93 Cal. APP-Ah TOT cnet eee ete eee e e esaeeesabeee sabe e esa ee sabe eas 8 Martin v. Lockheed (1994) 29 Cal. APP.AI T7118 cnet es es sate eters saan e ns 7,10 McDonald v. Antelope Valley CCD (2008) 45 Cald™ 88... ects eters eee ete erate areas eaten et ete erenes 11 Morgan v. Regents of University of Cal. (2000) BE CAL ADP ATH. 57 50 50 sumunsn snssn onus swans 505555 555555515 5555557 555055.58. 55555508 $55555738 FATHERS SAV5558 00555 12 Nazir v. United Airlines, Inc. (2009) 178 Cal. APP.Ath 243... eee eee ete eee sates sete sabes sabe e esate esabe ee sabe ens 9 Oldcastle Precast, Inc. v. Lumbermens Mut. Cas. Co. (2009) 170 Cal APPA 554 «ener b esate enbe ene e sees 8 Defendants’ Reply to Plaintiff’s Opposition to Defendants’ Motion for Summary Judgment 9323340.1 MO110-151 Li eb er t Ca ss id y W h i t m o r e A Pr of es si on al La w Co rp or at io n 6 0 3 3 W e s t C e n t u r y B o u l e v a r d , 5t h Fl oo r Lo s A n g e l e s , Ca li fo rn ia 9 0 0 4 5 ~N O N wn A W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 21 28 Reid v. Google, Inc. (2010) 50 CALAPP.AT 512 o.oo eee estor nanan ens 15 Richards v. CH2M Hill, Inc. {OL} 205 (Cal ZT "TEI «cmon. on ssn ss soos sess 058, 5 S55 SS SRA 11, 12 Rodriguez v. EM.E., Inc. (2016) 246 Cal. APP.Ath 1027 ooo eects eters stasis sb ee sabe sabe e sree seas 7 Salazar v. Upland (2004) 116 Cal. APP.Ath O34 eee eee eee eee sb ee sabes nbe esse eeeeas dq Sangster v. Paetkau (1998) 68 Cal. APP.ALI 151 ooo eee steerer sate eee eee ee sate sabe e nee e ees 7 Scotch v. Art Institute of Cal.-Orange County, Inc. (2009) 173 Cal APDAE. DBO: scsumusn snssnnonsnsnss swans som or5ms5m 15 5555555 555055.5 5555555 S55555738 SAFER SV5558 00555 14 Trujillo v. North County Transit Dist. (1998) 63 Cal. APP-ALh 280 ..c.eeenieeiieeiieeeieteee teeter steer eae saan eens eaten 13 Yurick v. Sup. Ct. (1989) 209 Cal APP.3A T1160 conics eee eee este sabes eet ee saa ee 10 State Statutes Code of Civil Procedure section 437C(D)(2) ..ccuueieeiiieeeeeeiiieeeeieieeeesstieee ee sira e evae ae sssav ae ee sesna ae anaes 9 Code of Civil Procedure SeEtion A376) csssss ssumses ss sumsnss ssmsssn oo sowsso ssn 6 5555555 5555556 555558 5055555 5053555 8 Code of Civil Procedure Section 437C(d) ......ccouiiiiuirieiieieeieciiieee ieee eects eee eerarr ee ee sees eetaraea ees 7 Government (Code SEEtOf 129A) ww swrsnn is sumussn swmsnsnn sunsnss somos ss samme 05s. 5555598 5555555 55.5555 S05aHE5.39 58 14 Government Code Section 129600(C) ..oovurieieeiiieieeiiieie c rts eects eerie ee essa ae ee erae esse rae ae es sassae ee ennes 10 State Rules RULES OF COUIt 3.1116... sr ee sane eee eees 7 Riles, oF Cott 3. 1 35O(@N) sunwnsss sunsnen sunsnn on sssnsn asusnsoo sums somes. 56.55055155 S555085.59 5555558 S056555.45 SA0EH8 S955 7,8,9 Rules Of Court 3.1350(F) ..ueeeiuiiiieeiiiiie ieee eect eect eee e eee ee eee be esse etree e esses aes sbeae ae nsnsaeae anne 8 Rules, OF COE 3 L350 ssn snmnes sn sumnnsn sumsnsn on sonsnss soma oo sums 255555. 56 5505580 5505785505.58 5555555 SaN5555,56 553550 05855 0 FU5 8 RUIES Of COUT 3.1354(@)..00eeeuurieieeiiieie eects etie seer te esas st ee ee etae eee saae esse ssssae ae ensas ae sssseaeanssnsaeaeannns 7 State Regulations 2 California Code of Regulations section 10005(d). ....ccovvveeriieiriiieiiiie cies eee 10 4 Defendants’ Reply to Plaintiff’s Opposition to Defendants’ Motion for Summary Judgment 9323340.1 MO110-151 Li eb er t Ca ss id y W h i t m o r e A Pr of es si on al La w Co rp or at io n 6 0 3 3 W e s t C e n t u r y B o u l e v a r d , 5t h Fl oo r Lo s A n g e l e s , Ca li fo rn ia 9 0 0 4 5 ~N O N wn A W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 21 28 Miscellaneous California Civil Jury Instructions 2546 5 Defendants’ Reply to Plaintiff’s Opposition to Defendants’ Motion for Summary Judgment 9323340.1 MO110-151 Li eb er t Ca ss id y W h i t m o r e A Pr of es si on al La w Co rp or at io n 6 0 3 3 W e s t C e n t u r y B o u l e v a r d , 5t h Fl oo r Lo s A n g e l e s , Ca li fo rn ia 9 0 0 4 5 ~N O N wn A W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 21 28 I. INTRODUCTION Plaintiff’s Opposition to Defendants” MS] is procedurally, substantively and fatally defective and ignores virtually all procedural and evidentiary requirements associated with summary judgment motions. Plaintiff’s points and authorities contain no citations to evidence or “facts” supporting Plaintiff’s allegations, nor has Plaintiff submitted any evidence in opposition to Defendants’ MSJ. Plaintiff’s Opposition fails to substantively address most arguments in the MS] and ignores the extensive evidence presented by Defendants. Most of Plaintiff’s Opposition is a regurgitation of what is alleged in the Third Amended Complaint (“TAC”) and literally contains large portions of the TAC which are copied and pasted into the Opposition. Clearly, this is not sufficient to survive summary judgment, and a lack of any evidentiary support, lack of objections to Defendants’ evidence, and misunderstanding and/or misapplication of established legal theories must prove fatal to Plaintiff’s Opposition and fatal to all causes of action against all Defendants in this matter. The undisputed evidence confirms that no triable issue exists as to any material fact and that Defendants are entitled to summary judgment as a matter of law. II. LEGAL ARGUMENT A. PLAINTIFF’S PROCEDURAL AND EVIDENTIARY DEFICIENCIES 1. Defendants’ Extensive Evidence is Ignored by Plaintiff Plaintiff claims that Defendants’ evidence falls short of the summary judgment standard and asserts that Defendants submitted “only ten ‘facts,’ none of which address each of the elements in Plaintiff’s six causes of action. Defendant has also submitted no factual Declarations and only a handful of documents.” (Opp. 8:24-9:2).! As the Court will note, Defendants in fact submitted an extensive Separate Statement of Undisputed Material Facts (“UMFs”) containing a total of 424 facts, to which Plaintiff vaguely responded in her “Opposition to Defendant’s Undisputed Material Facts.” Additionally, Defendants submitted 18 declarations, and an appendix of evidence consisting of 46 exhibits, totaling close to 500 pages of materials. I Plaintiff repeatedly refers to Plaintiff’s “six causes of action” in the Opposition. However, as noted in the MSJ and the Court’s records, Plaintiff’s fifth cause of action for sexual harassment and sixth cause of action for discrimination based on sex were both dismissed at the pleading stage, as were Plaintiff’s age and race based allegations. 6 Defendants’ Reply to Plaintiff’s Opposition to Defendants’ Motion for Summary Judgment 9323340.1 MO110-151 Li eb er t Ca ss id y W h i t m o r e A Pr of es si on al La w Co rp or at io n 6 0 3 3 W e s t C e n t u r y B o u l e v a r d , 5t h Fl oo r Lo s A n g e l e s , Ca li fo rn ia 9 0 0 4 5 ~N O N wn A W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 21 28 Plaintiff did not file or serve any objections to the extensive evidence submitted by Defendants in the form of declarations and exhibits, and such objections are therefore waived. While the opposing party may object to the moving party's evidence, a failure to object waives the right to challenge the court's ruling based on such evidence. (Rodriguez v. EXM.E., Inc. (2016) 246 Cal. App.4th 1027, 1045; CCP § 437c(d).) Unless excused by the court for good cause, all written objections must be filed and served at the same time as the objecting party's opposition papers. (CRC 3.1354(a).) Here, Plaintiff failed to file or serve any objections to evidence. 2. Plaintiff Failed to File Any Evidence in Support of the Opposition Plaintiff did not file any declarations or evidence whatsoever in support of her Opposition, in violation of CRC 3.1350(e)(3).2 The only documents filed were Plaintiff’s MSJ Opposition and an “Opposition to Defendant’s Undisputed Material Facts.” In order to survive summary judgment, a plaintiff must show that a triable issue of material fact exists. (Barton v. Elexsys (1998) 62 Cal.App.4th 1182, 1187.) To establish a triable issue, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal. App.4th 151, 166.) Plaintiff has clearly failed to do so here, submitting absolutely no evidence. With respect to harassment and discrimination causes of action specifically, it is well- settled that a plaintiff must produce “substantial responsive evidence” that the employer’s evidence was untrue or pretext to avoid summary judgment. (Martin v. Lockheed (1994) 29 Cal. App.4th 1718, 1735.) Mere allegations, speculation, or denials in pleadings cannot defeat summary judgment. (Salazar v. Upland (2004) 116 Cal.App.4th 934, 942.) Plaintiff’s Opposition papers consist almost entirely of speculative allegations with no evidentiary or factual support, 1" 1" 2 Defendants were untimely served with excerpts from Plaintiff's deposition(s) on July 11 at 1:11 a.m. However, the deposition excerpts were not filed with the Court and should be disregarded. Additionally, the deposition pages are not properly bracketed, highlighted, or authenticated as required per CRC 3.1116, and it is impossible for Defendants to respond to such deposition testimony, nor should Defendants be expected to respond to evidence which was untimely served, and also not filed with the Court. Additionally, a “Declaration of Edward A. Torres” and “Exhibits” are referenced in the caption page of Plaintiff’s Opposition, but these purported documents were not filed or served on Defendants. 7 Defendants’ Reply to Plaintiff’s Opposition to Defendants’ Motion for Summary Judgment 9323340.1 MO110-151 Li eb er t Ca ss id y W h i t m o r e A Pr of es si on al La w Co rp or at io n 6 0 3 3 W e s t C e n t u r y B o u l e v a r d , 5t h Fl oo r Lo s A n g e l e s , Ca li fo rn ia 9 0 0 4 5 ~N O N wn A W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 21 28 and Plaintiff has failed to establish that Defendants’ evidence was untrue or pretext.’ 3. The Opposition to Defendants’ Separate Statement Has Fatal Flaws Plaintiff’s Opposition papers must include a separate statement responding to each of the material facts the moving party contends to be undisputed. The opposing party's separate statement must state unequivocally whether each fact in the moving party's separate statement is “disputed” or “undisputed.” (CCP § 437c(b)(3); CRC 3.1350(f).) If “disputed,” the word should immediately be followed by a reference to the evidence demonstrating that the fact is disputed. (CRC 3.1350(h); CCP § 437c(b)(3); Lewis v. County of Sacramento (2001) 93 Cal.App.4th 107, 115-116.) When a moving party makes the required prima facie showing, as Defendants have here, Plaintiff’s failure to comply with requirements associated with separate statements may, in the court's discretion, constitute a sufficient ground for granting the motion. (CCP § 437¢(b)(3); Oldcastle Precast, Inc. v. Lumbermens Mut. Cas. Co. (2009) 170 Cal.App.4th 554, 568.) Here, Plaintiff’s Opposition to Defendant’s UMFs fails in the following non-exhaustive list of respects: (1) Plaintiff improperly utilizes “admit” and “deny” in her Opposition to Defendants’ Separate Statement, as opposed to “disputed”/’undisputed”; (2) eighty-three of Defendants’ material facts are flatly “denied” or disputed with no objection, explanation, or citation to any evidence in support of such denial; (3) nineteen of Defendants’ material facts are “denied” or disputed with some form of an objection, but again no citation to evidence in support of the denial or objection;* (4) only fourteen of Plaintiff’s responses to Defendants’ UMFs contain citations to “evidence” in support of Plaintiff’s response(s), out of 424 material facts. (However, again, no evidence was filed with the Court, in violation of CRC 3.1350(¢e)(3), and Plaintiffs minimal citations to “evidence” must not be considered); and (5) Plaintiff fails to respond at all to six material facts. (See UF 224, 226, 234, 310, 321, 414). Out of the 424 material facts included in Defendants’ Separate Statement, Plaintiff 3 The proof must show a triable question of fact. Equivocal evidence will not suffice. (Ahrens v. Sup.Ct. (Pacific Gas & Elec. Co.) (1988) 197 Cal.App.3d 1134, 1152.) Here, Plaintiff presented no evidence whatsoever, and any reference to Plaintiff’s Opposition to Defendants’ UMFs is equivocal and should not be considered. * The three foregoing items are all in violation of CRC 3.1350(h). 8 Defendants’ Reply to Plaintiff’s Opposition to Defendants’ Motion for Summary Judgment 9323340.1 MO110-151 Li eb er t Ca ss id y W h i t m o r e A Pr of es si on al La w Co rp or at io n 6 0 3 3 W e s t C e n t u r y B o u l e v a r d , 5t h Fl oo r Lo s A n g e l e s , Ca li fo rn ia 9 0 0 4 5 ~N O N wn A W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 21 28 “admits” or deems undisputed 316 of those facts. When the opponent states that a fact is “undisputed,” (or in this case “admitted”) any objections to the evidence supporting that fact are waived. (Hurley Const. Co. v. State Farm Fire & Cas. Co. (1992) 10 Cal. App.4th 533, 540-541.) 4. Plaintiff’s Additional Undisputed Facts are Deficient Plaintiff includes eight additional undisputed facts in her Opposition to Defendants’ UMFs. (See Plaintiff’s Opposition to UMFs, pp. 132-134.) However, the additional undisputed facts effectively include no reference to any evidence in support of those “facts” as required per CRC 3.1350(e)(3). Plaintift’s additional fact number 3 contains no citation to evidence at all. The remaining additional facts include citations to pages from Plaintiff’s deposition transcript in this action, as well as excerpts from Plaintiff’s workers’ compensation deposition. However, none of this evidence was filed, and none can be considered by this Court. S. Plaintiff Failed to Oppose Adjudication of the Second Cause of Action Plaintiff entirely fails to oppose Defendants’ request for summary adjudication as to the second cause of action for disability discrimination. As Plaintiff does not address this cause of action at all in her Opposition papers, this specific cause of action is waived and summary adjudication is appropriate. (See, Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 288 [plaintiff waived cause of action when opposition to motion for summary judgment did not address the issue].) Indeed, given Plaintiff’s procedural and evidentiary deficiencies in her Opposition papers and failure to properly address the issues, this standard should similarly apply to Plaintiff’s first, third and fourth causes of action. 6. Plaintiff Untimely Served the Opposition Papers All opposition papers must be served on the moving party and filed with the court at least 14 days before the date set for the hearing, unless the court shortens the time for good cause shown. (CCP § 437¢(b)(2) [Code requires filing and service by such time].) Here, Plaintiff was to timely file and serve her Opposition papers before midnight on Friday, July 10, 2020. While it appears that Plaintiff’s Opposition brief and Opposition to Defendants’ UMFs were filed at 11:03 p.m. on July 10, the second document was not served on defense counsel until Saturday, July 11 at 12:14 p.m. via email. Service of Plaintiff’s Opposition to Defendants’ UMFs was, therefore, 9 Defendants’ Reply to Plaintiff’s Opposition to Defendants’ Motion for Summary Judgment 9323340.1 MO110-151 Li eb er t Ca ss id y W h i t m o r e A Pr of es si on al La w Co rp or at io n 6 0 3 3 W e s t C e n t u r y B o u l e v a r d , St h Fl oo r Lo s A n g e l e s , Ca li fo rn ia 9 0 0 4 5 ~N O N wn A W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 21 28 untimely. A court has discretion to refuse to consider papers served and filed beyond the deadline without a prior court order finding good cause for late submission. (Bozzi v. Nordstrom, Inc. (2010) 186 Cal. App.4th 755, 765.) The Court should exercise that discretion in this instance. B. PLAINTIFF FAILED TO EXHAUST ADMINISTRATIVE REMEDIES Plaintiff’s Opposition appears to confuse and combine two distinct arguments raised in the MSJ, namely (1) Plaintiff’s failure to exhaust administrative remedies, and (2) the statute of limitations which applies to Plaintiff's 2018 DFEH Charge (addressed further below). Notably, Defendants’ failure to exhaust argument was not directly addressed by Plaintiff in the Opposition. As such, Plaintiff has conceded the argument, which divests this Court of jurisdiction. “To exhaust his or her administrative remedies as to a particular act made unlawful by the [FEHA], the claimant must specify that act in the administrative complaint, even if the complaint does specify other cognizable wrongful acts.” (Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal. App.4th 1718, 1724, citing Yurick v. Sup. Ct. (1989) 209 Cal.App.3d 1116, 1121-1123 (“plaintiff's claim of gender discrimination alleged in her administrative charge did not encompass the cause of action for age harassment... alleged in her lawsuit. To permit [plaintiff] to pursue that cause of action would undermine vital policy interests embodied in FEHA.) Courts have recognized, in the context of the FEHA, that “[t]he failure to exhaust an administrative remedy is a jurisdictional, not a procedural, defect,” and thus that failure to exhaust administrative remedies is a ground for a defense summary judgment. (Martin, supra, 29 Cal. App.4™ at 1724.) Simply, Plaintiff’s 2017 and 2018 DFEH Charges do not set forth “particular” facts relating to the causes of action at issue in Plaintiff's TAC. Specifically, as in Yurick, Plaintiffs claims of race and age discrimination, and harassment based on race, in the respective DFEH Charges, do not encompass Plaintiff’s operative causes of action for disability-related discrimination, harassment, or failure to engage in the interactive process. None of the operative causes of action were particularly set forth in Plaintiff’s DFEH Charges, nor did Plaintiff’s DFEH Charges reference a purported disability. (Govt. Code §12960(c); 2 Cal. Code Regs. § 10005(d).) GC. FEHA VIOLATIONS PRIOR TO JULY 19, 2017 ARE UNTIMELY 1. Argument Re Tolling of the Statute of Limitations is Misplaced 10 Defendants’ Reply to Plaintiff’s Opposition to Defendants’ Motion for Summary Judgment 9323340.1 MO110-151 10 Li eb er t Ca ss id y W h i t m o r e A Pr of es si on al La w Co rp or at io n 6 0 3 3 W e s t C e n t u r y B o u l e v a r d , 5t h Fl oo r Lo s A n g e l e s , Ca li fo rn ia 9 0 0 4 5 ~N O N wn A W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 21 28 In the Opposition, Plaintiff states, “Defendant argues that Plaintiff is barred from maintaining her causes of action for discrimination and or harassment based on the statute of limitations having expired based on the timing of the accrual of the causes of action and Plaintiff’s filing date of her FEHA and LASC complaint.” (Opp. 10:1-4) While this is true (in addition to the failure to exhaust argument made above), it is unclear how the tolling provision applies here. Plaintiff’s July 19, 2018 DFEH Charge, if the Court is even inclined to accept that Charge as sufficient, limits Plaintiff’s reference to any alleged FEHA violations occurring prior to July 19, 2017, regardless of any supposed tolling provision.’ Plaintiff relies upon McDonald v. Antelope Valley CCD (2008) 45 Cal.4™ 88 in support of her tolling argument. The Court in McDonald held that an employee’s act of filing a FEHA proceeding while her internal grievance proceeding with a community college district was pending did not preclude equitable tolling of the FEHA statute of limitations. (/d. at 100) Plaintiff’s argument, however, is unclear in this area. McDonald is clearly distinguishable from Plaintiff’s case in that Plaintiff had no grievance proceeding with the City that would arguably toll any statute of limitations, nor was any such proceeding cited by Plaintiff. 2. Plaintiff’s “Continuing Violation” Argument Fails Plaintiff's Opposition references Brown v. City of Sacramento (2019) 37 Cal. App.5™ 587, and includes lengthy citations from that case, presumably in support of her continuing violation argument. However, Plaintiff fails to show how this doctrine applies to her claims in this case. A plaintiff suing for violations of FEHA ordinarily cannot recover for acts occurring more than one year before the filing of the DFEH complaint. (Govt. Code § 12960(d); Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, 822-823 [“[P]ermitting an employee indefinitely to delay the filing of a lawsuit ... would be contrary to the FEHAs statute of limitations and potentially prejudicial to the employer.”].) Here, all incidents occurring before July 19, 2017 are time- barred, unless the continuing violation doctrine applies. However, the doctrine does not apply. In 3 If the Court is inclined to consider Plaintiff’s 2017 DFEH Charge as the operative Charge, this limits Plaintiff’s reliance on alleged FEHA violations occurring prior to July 26, 2016, and most of Plaintiff’s claims pre-date July 2016. 11 Defendants’ Reply to Plaintiff’s Opposition to Defendants’ Motion for Summary Judgment 9323340.1 MO110-151 11 Li eb er t Ca ss id y W h i t m o r e A Pr of es si on al La w Co rp or at io n 6 0 3 3 W e s t C e n t u r y B o u l e v a r d , 5t h Fl oo r Lo s A n g e l e s , Ca li fo rn ia 9 0 0 4 5 ~N O N wn A W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 21 28 The doctrine only applies when all of the following are established: (1) the acts predating the statutory period are sufficiently similar to those within the statutory period; (2) the acts occurred with reasonable frequency; and (3) the acts did not acquire a degree of permanence. (/d. at 823.) The doctrine is premised on the rationale that the statute of limitations should not begin to run until a reasonable person would be aware that his or her rights have been violated. (Morgan v. Regents of University of Cal. (2000) 88 Cal.App.4th 52, 65.) "Plaintiff has the burden of proof to show his or her claims are timely under the continuing violation doctrine." (Jumaane v. City of Los Angeles (2015) 241 Cal. App.4™" 1390, 1402.) Here, Plaintiff has presented no evidence that any acts predating the statutory period are similar to alleged acts occurring within the statutory period. (See UF 35) Moreover, the alleged acts did not occur with reasonable frequency over a 14-year period of time from 2004 until the date of filing her DFEH Charge in 2018. The alleged incidents were sporadic and unrelated, and allegedly committed by various City employees, including seven individually named defendants. Finally, the alleged acts acquired a degree of permanence as far back as between 2004 and 2006 when Plaintiff alleges that Defendants placed pill bugs at her desk. (UF 101- 103).% Plaintiff waited 10 years, then reported an incident to HR Director, Tom Cody, in May 2014 regarding a cockroach. (UF 117) The acts likely acquired a degree of permanence as far back as 2004, but certainly achieved permanence in May 2014 at the latest, meaning that Plaintiff should have filed a DFEH complaint within one year of the 2014 incident. She instead waited over three years to file her initial DFEH complaint in July 2017. (See, Richards, supra, 26 Cal.4th at 823 [permanence or statute of limitations begins to run on a FEHA claim when employee is on notice that further efforts are in vain].) Plaintiff has not met her burden of establishing the continuing violation applies, and her claims pre-dating July 19, 2017 are, therefore, time-barred. D. PLAINTIFF CANNOT ESTABLISH A PRIMA FACIE CASE OF DISABILITY HARASSMENT OR DISCRIMINATION a Notably, in the Opposition, Plaintiff alleges that an adverse employment action occurred in 2004. While it is unclear what employment action she is referencing, this establishes that Defendants’ alleged acts reached permanence as early as 2004. (See Opp. 20:11-21:7.) 12 Defendants’ Reply to Plaintiff’s Opposition to Defendants’ Motion for Summary Judgment 9323340.1 MO110-151 12 Li eb er t Ca ss id y W h i t m o r e A Pr of es si on al La w Co rp or at io n 6 0 3 3 W e s t C e n t u r y B o u l e v a r d , 5t h Fl oo r Lo s A n g e l e s , Ca li fo rn ia 9 0 0 4 5 ~N O N wn A W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 21 28 In the Opposition, Plaintiff asserts that she “suffered multiple incidents of harassment and discrimination,” then proceeds to list allegations included in her TAC and directs the Court to review the TAC for such supporting “evidence.” (Opp., 11:24-26) Plaintiff references her Opposition to Defendants’ UMFs generally and refers to Plaintiff's depositions in the instant matter and her unrelated workers’ compensation matter, but provides no citations to evidence or UMEF numbers. Again, Plaintiff filed no evidence whatsoever in Opposition to Defendants’ MSJ, so any reference to deposition transcripts or excerpts cannot be considered. Plaintiff sums up her argument in support of her harassment and discrimination claims by stating that, “All one has to do is review Plaintiff's 3" amended complaint under the common allegations commencing with paragraph 9 to see the timeline of harassing events against Plaintiff.” (Opp. 12:10-13.) This conclusory excerpt is followed by a literal copy and paste of six pages of allegations (not facts) from Plaintiffs TAC. (Opp., 12:15-17:17; see also, identical language at TAC, 4:18-10:3.) Plaintiff cannot rely on her own pleadings as evidence to oppose a motion for summary judgment or summary adjudication. (College Hosp., Inc. v. Sup.Ct. (Crowell) (1994) 8 Cal.4th 704, 720.) Vague references to Plaintiff’s pleadings and evidence never filed for the Court’s or Defendants’ consideration are utterly improper. Plaintiff has clearly shown that she has not established, and cannot establish, a prima facie case of disability harassment or discrimination. E. PLAINTIFF CANNOT ESTABLISH A PRIMA FACIE CASE OF FAILURE TO PREVENT DISCRIMINATION AND HARASSMENT To state a claim for failure to prevent discrimination and/or harassment, plaintiff must show (1) she was subjected to discrimination, harassment and retaliation; (2) defendant failed to take all reasonable steps to prevent discrimination, harassment and retaliation; and (3) this failure caused her to suffer injury, damage, loss or harm. (Lelaind v. City and County of San Francisco (N.D.Cal. 2008) 576 F.Supp.2d 1079, 1103). When there is no finding that discrimination or harassment occurred, there can be no cause of action for a “failure to prevent” that which did not occur. (Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th 280, 287-289). As noted above, Plaintiff has failed to establish a prima facie case of harassment or discrimination. With respect to the failure to prevent claim, Plaintiff ignores the steps taken by 13 Defendants’ Reply to Plaintiff’s Opposition to Defendants’ Motion for Summary Judgment 9323340.1 MO110-151 13 Li eb er t Ca ss id y W h i t m o r e A Pr of es si on al La w Co rp or at io n 6 0 3 3 W e s t C e n t u r y B o u l e v a r d , 5t h Fl oo r Lo s A n g e l e s , Ca li fo rn ia 9 0 0 4 5 ~N O N wn A W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 21 28 the City to investigate her concerns in August 2017, and the unbiased investigator’s conclusion that the City’s harassment/discrimination policy had not been violated. (UF 83-87) Rather, Plaintiff focuses on the City moving her desk during the City’s investigation of her complaints as a form of retaliation or improper conduct. However, Plaintiff admits that she requested to be moved, that the City granted this request, and Plaintiff signed an acknowledgement in which she “voluntarily agree[d] to be transferred from [her] current work station to a[nother] work station ..., and agree[d] that the transfer is not,...retaliatory.” (UF 90, 128.) In support of Plaintiff’s failure to prevent cause of action, Plaintiff again merely recites sections of the TAC and includes allegations, with no supporting “facts” or evidence. Plaintiff copies and pastes verbatim sections of the TAC into the Opposition. (See Opp. 18:1-5; TAC, 16:15-17.) This is not sufficient to establish a prima facie case. F. PLAINTIFF CANNOT ESTABLISH A PRIMA FACIE CASE FOR FAILURE TO ENGAGE IN THE INTERACTIVE PROCESS To establish this claim, Plaintiff must demonstrate that: (1) she requested that the City make reasonable accommodation; (2) she was willing to participate in an interactive process to determine whether reasonable accommodation could be made; and (3) the City failed to participate in a timely good-faith interactive process with Plaintiff to determine whether reasonable accommodation could be made. (CACI 2546; Gov. Code § 12940(n).) An employer only has a duty to engage in the interactive process and reasonably accommodate known disabilities, and the burden to initiate the interactive process rests with the employee. ((Avila v. Continental Airlines, Inc. (2008) 165 Cal. App.4th 1237, 1252; Scotch v. Art Institute of Cal.- Orange County, Inc. (2009) 173 Cal.App.4th 986, 1013; Doe v. Dept. of Corrections (2019) 43 Cal. App.5" 721 - case dismissed where employee provided no information describing the extent of alleged disabilities, work limitations, and failed to place employer on notice of disabilities.) Plaintiff again ignores salient arguments made in Defendants’ MSJ. Specifically, Plaintiff fails to address the City’s evidence that: (1) it had no knowledge that Plaintiff had a “disability” that needed to be accommodated; (2) Plaintiff admittedly never told anyone at the City that she had a disability or medical condition (UF 126); (3) Plaintiff admits that she never advised the City 14 Defendants’ Reply to Plaintiff’s Opposition to Defendants’ Motion for Summary Judgment 9323340.1 MO110-151 14 Li eb er t Ca ss id y W h i t m o r e A Pr of es si on al La w Co rp or at io n 6 0 3 3 W e s t C e n t u r y B o u l e v a r d , 5t h Fl oo r Lo s A n g e l e s , Ca li fo rn ia 9 0 0 4 5 ~N O N wn A W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 21 28 of any work restrictions (UF 41); (4) Plaintiff admits she did not ask anyone at the City to engage in an interactive process to explore reasonable accommodations (UF 127)"; (5) the City had no duty to engage in the interactive process because Plaintiff could perform her job duties; and (6) the burden to initiate the process rests with Plaintiff (and that burden has not been met). Rather than address these arguments head on, Plaintiff vaguely recites a list of cases which relate to reasonable accommodations and the interactive process, and notably cites to no “facts” or evidence in support of her cause of action. Instead, Plaintiff makes yet another conclusory allegation as follows: “It is clear since plaintiff was harassed and tortured on the job at the City... Plaintiff [was left] to ‘twirl in the wind’ so as to allow her Co employees to abuse her emotionally... The bottom line here is plaintiff call [sic] employees enjoyed torturing plaintiff because she was afraid of spiders and bugs. It is just that simple, unfortunately.” (Opp., 20:5-10.) Unfortunately for Plaintiff, this conclusory statement is not sufficient for a prima facie case. G. LEGITIMATE BUSINESS REASONS FOR THE ADVERSE ACTIONS Plaintiff alleges that she “suffered adverse employment actions based on Defendant’s mis- conduct [sic] since 2004” and asserts that “there are a number of adverse employment actions since 2004,” but does not specify which actions were adverse. (Opp. 20:12-13; 21:3-8.) Assuming adverse employment actions were taken, the City has established that it had legitimate, non-discriminatory reasons for the actions, which were not addressed or refuted by Plaintiff in the Opposition. Nor has Plaintiff established that any of the alleged adverse actions were motivated by discriminatory animus. (Reid v. Google, Inc. (2010) 50 Cal. App.4" 512, 541.) Dated: July 17, 2020 Respectfully submitted, LIEBERT CASSIDY WHITMORE By: /s/ James E. Oldendorph James E. Oldendorph Attorneys for Defendants 7" In Plaintiffs Opposition to Defendants’ UMFs, Plaintiff vaguely denies this fact, yet qualifies and contradicts the response by stating, “She was embarrassed [meaning she did not in fact ask to engage in the interactive process]. It was enough she reacted abnormally to put any one reasonable person on notice that something was wrong.” (UF 127.) This response is vague, conclusory, speculative and lacks any supporting evidence. 15 Defendants’ Reply to Plaintiff’s Opposition to Defendants’ Motion for Summary Judgment 9323340.1 MO110-151 15 Li eb er t Ca ss id y W h i t m o r e A Pr of es si on al La w Co rp or at io n 6 0 3 3 W e s t C e n t u r y B o u l e v a r d , 5t h Fl oo r Lo s A n g e l e s , Ca li fo rn ia 9 0 0 4 5 ~N O N wn A W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 21 28 PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES I am employed in the County of Los Angeles, State of California. I am over the age of 18 and not a party to the within action; my business address is: 6033 West Century Boulevard, Sth Floor, Los Angeles, California 90045. On July 17, 2020, I served the foregoing document(s) described as DEFENDANTS’ REPLY TO PLAINTIFF'S OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION in the manner checked below on all interested parties in this action addressed as follows: Edward A. Torres Law Offices of Edward A. Torres 80 S. Lake Ave., Suite 702 Pasadena, CA 91101 Email: edward @eatorreslegal.com edwardatorres @ gmail.com LI BY US. MAIL) Iam “readily familiar” with the firm’s practice of collection and processing correspondence for mailing. Under that practice it would be deposited with the U.S. Postal Service on that same day with postage thereon fully prepaid at Los Angeles, California, in the ordinary course of business. I 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. Ll (BY FACSIMILE) Iam personally and readily familiar with the business practice of Liebert Cassidy Whitmore for collection and processing of document(s) to be transmitted by facsimile. I arranged for the above-entitled document(s) to be sent by facsimile from facsimile number 310.337.0837 to the facsimile number(s) listed above. The facsimile machine I used complied with the applicable rules of court. Pursuant to the applicable rules, I caused the machine to print a transmission record of the transmission, to the above facsimile number(s) and no error was reported by the machine. A copy of this transmission is attached hereto. 1 (BY OVERNIGHT MAIL) By overnight courier, I arranged for the above-referenced document(s) to be delivered to an authorized overnight courier service, FedEx, for delivery to the addressee(s) above, in an envelope or package designated by the overnight courier service with delivery fees paid or provided for. M (BY ELECTRONIC SERVICE) By electronically mailing a true and correct copy through Liebert Cassidy Whitmore’s electronic mail system from Itarrin@lcwlegal.com to the email address(es) set forth above. 1 did not receive, within a reasonable time after the transmission, any electronic message or other indication that the transmission was unsuccessful. 16 Proof of Service 9323340.1 MO110-151 16 Li eb er t Ca ss id y W h i t m o r e A Pr of es si on al La w Co rp or at io n 6 0 3 3 W e s t C e n t u r y B o u l e v a r d , 5t h Fl oo r Lo s A n g e l e s , Ca li fo rn ia 9 0 0 4 5 ~N O N wn A W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 21 28 V (BY ELECTRONIC SERVICE PROVIDER) I am readily familiar with the firm’s practice for filing electronically. Through use of OneLegal, an electronic service provider, I arranged a true and correct copy of the above-reference documents to be electronically served to the e-mail address(es) registered with the court this day in the ordinary course of business following ordinary business practices. LJ (BY PERSONAL DELIVERY) I delivered the above document(s) by hand to the addressee listed above. Executed on July 17, 2020, at Los Angeles, California. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. /s/ Linda Tarrin Linda Tarrin 17 Proof of Service 9323340.1 MO110-151 17
