Case Name: Wong v. Hewlett-Packard Company, et al.
Case No.: 2014-1-CV-265973

In the complaint, plaintiff Jonathan Wong (“Wong”) asserts causes of action against defendant Hewlett-Packard Company (“HP”) and for: (1) interference, retaliation, and discrimination under the California Family Rights Act (“CFRA”), (2) retaliation under the California Paid Family Leave Act (“PFLA”), (3) associational disability discrimination under the Fair Employment and Housing Act (“FEHA”), (4) wrongful termination in violation of public policy, (5) defamation, and (6) intentional infliction of emotional distress (“IIED”). Wong has dismissed the second and third causes of action.

HP moves for summary judgment or, alternatively, summary adjudication of each cause of action, and objects to opposing evidence submitted by Wong. (See Code Civ. Proc. [“CCP”], § 437c.) It also moves to seal documents submitted in support of that motion and the reply. (See Cal. Rules of Court, rule 2.550(d).)

I. Motion to Seal Moving Papers & Motion to Seal Reply Papers

The court may order that a record be filed under seal only if it expressly finds facts that establish an overriding interest that overcomes the right of public access to the record. (Cal. Rules of Court, rule 2.550(d).) HP contends that individuals’ right to privacy in medical information and personnel information constitutes an overriding interest in favor of sealing the documents at issue. Under appropriate circumstances, privacy interests may constitute overriding interests. (In re Providian Credit Card Cases (2002) 96 Cal.App.4th 292, 298, fn. 3.) An individual has a right to privacy in confidential medical information, employment histories, and personnel records. (See Brillantes v. Super. Ct. (1978) 51 Cal.App.4th 323, 339; see also Board of Trustees of Leland Stanford Jr. Univ. v. Super. Ct. (1981) 119 Cal.App.3d 516, 528-530; see also San Diego Trolley, Inc. v. Super. Ct. (2001) 87 Cal.App.4th 1083, 1097.) Nevertheless, the portions of the moving papers and reply papers that HP seeks to seal from the public record do not contain any such private information; instead, they generally refer to non-sensitive and non-confidential information. Moreover, the Court cannot seal records based solely on the fact that the information was designated as “Confidential” pursuant to the parties’ confidentiality agreement and stipulated protective order. (See Cal. Rules of Court, rule 2.551(a); see also McNair v. National Collegiate Athletic Association (2015) 234 Cal.App.4th 25, 35-36.) Accordingly, the motions to seal are DENIED.

II. Motion for Summary Judgment or Adjudication

In ruling on a motion, the court must first identify the issues framed by the pleadings. (Kelly v. First Astri Corp. (1999) 72 Cal.App.4th 462, 470.) “It is well established that the pleadings determine the scope of relevant issues on a summary judgment motion. ([Citations].)” (Nieto v. Blue Shield of California Life & Health Ins. Co. (2010) 181 Cal.App.4th 60, 74.) Next, the court determines whether the moving party has met its initial evidentiary burden. (Kelly v. First Astri Corp., supra, 72 Cal.App.4th, at p. 470.) A moving defendant has the initial burden to demonstrate that a cause of action has no merit by showing “that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action.” (CCP, § 437c, subd. (p)(2).) If the moving defendant fails to meet its initial burden, then the motion must be denied. (Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 468; see also Orsetti v. City of Fremont (1978) 80 Cal.App.3d 961, 966.) If the moving defendant meets its initial burden, then the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists. (CCP, § 437c, subd. (p)(2).) The court may only grant summary judgment if all of the papers show that there is no triable issue of material fact and the moving party is entitled to judgment as a matter of law. (Id., subds. (a)(1) & (c).) The court may grant summary adjudication if it completely disposes of a cause of action, claim for punitive damages, issue of legal duty, or affirmative defense. (Id., subd. (f)(1).)

A. First Cause of Action for Violation of CFRA

For purposes of ruling on the motion, Wong’s first cause of action for violation of the CFRA actually contains two separate and distinct causes of action: (1) a claim for interference and (2) a claim for retaliation. (See Compl., ¶¶ 13, 18, & 23-25; see also Lilienthal & Fowler v. Super. Ct. (1993) 12 Cal.App.4th 1848, 1854-1855; see also Mathieu v. Norrell Corp. (2004) 115 Cal.App.4th 1174, 1188.)
An interference claim requires the plaintiff to establish a prima facie case for interference. (See Faust v. California Portland Cement Co. (2007) 150 Cal.App.4th 864, 879.) With the moving papers, HP proffers no argument, authority, or evidence to show that the interference claim lacks merit or is barred by an affirmative defense. In the reply, HP insists that it did not interfere with Wong’s right to take leave under the CFRA, and, to support its new argument, relies on evidence that is not set forth in the separate statement submitted with the moving papers. It is well-established that courts do not consider facts that are not set forth in the moving party’s separate statement. (Consumer Cause, Inc. v. SmileCare, supra, 91 Cal.App.4th, at p. 473.) Evidence submitted with the reply papers cannot be considered. (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 252; San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A. (2002) 102 Cal.App.4th 308, 316.) Moreover, “[p]oints raised for the first time in a reply brief will ordinarily not be considered because such consideration would deprive the respondent of an opportunity to counter the argument.” (Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764.) Accordingly, the new arguments and evidence set forth in the reply paper are insufficient for HP to meet its initial burden in support of the motion. Therefore, HP has not met its initial burden in support of the motion as to the claim for interference.

A retaliation claim involves a three-step burden shifting analysis: (1) the employee/plaintiff bears the initial burden to show a prima facie case for retaliation; (2) if a prima facie case is shown, then the burden shifts employer/defendant to show a legitimate, non-retaliatory reason for the adverse employment action; and (3) if the employer meets its burden, then the burden shifts back to the employee/plaintiff to show that the justification is a pretext. (Faust v. California Portland Cement Co. (2007) 150 Cal.App.4th 864, 885.) The court does not need to resolve whether the plaintiff made a prima facie showing when the employer/defendant moving for summary judgment or adjudication proceeds directly to the second step of the analysis. (Alcala v. Best Buy Stores, LP (C.D. Cal., Nov. 7, 2012, No. EDCV 11-00798-JVS) 2012 WL 6138332, at *6, citing Guz v. Bechtel Nat’l, Inc., supra, 24 Cal.4th, at p. 357.)
In support of the motion, HP argues that Wong’s first cause of action under the CFRA lacks merit because it had a legitimate, non-retaliatory reason for terminating Wong’s employment, and Wong cannot establish that its reasons are a pretext. HP cites several federal cases holding that evidence showing that an employee was terminated based on violations of the defendant’s company policies are sufficient to show a legitimate reason for terminating an employee in connection with a CLRA claim. (See Hamed v. Macy’s West Stores, Inc. (N.D. Cal., May 20, 2011, No. C-10-2790 JCS) 2011 WL 1935937, at *15; see also Granillo v. Exide Technologies, Inc. (C.D. Cal., May 20, 2011, No. CV 10-1080 SJO FMOX) 2011 WL 2535112, at *13.) HP submits evidence cited in its separate statement of undisputed material facts (“UMF”) showing that it terminated Wong because he engaged in misconduct in violation of its policy by removing HP equipment from its premises. (See HP’s UMF Nos. 1-78.) Specifically, HP’s evidence shows that Wong violated HP policy and his employment agreement by removing property from the premises without authorization on January 21, 2013. (HP’s UMF Nos. 1-6, 14-17, 21, 24, 37-43, 47-50, 53-54, & 56-61.) HP’s agents decided to terminate Wong based on that policy violation effective February 15, 2013. (Id. Nos. 72-73.) Such evidence is sufficient to show that HP had a legitimate, non-retaliatory reason to terminate Wong for violating its policy. HP has therefore met its initial burden to show that it had a legitimate, non-retaliatory reason for terminating Wong’s employment. (See Faust v. California Portland Cement Co., supra, 150 Cal.App.4th, at p. 885.) HP therefore has met its initial burden in support of its motion as to the CRFA retaliation claim. (See CCP, § 437c, subd. (p)(2).)

Since HP has met its burden to show a legitimate and non-retaliatory reason for Wong’s termination, the burden shifts to Wong to proffer evidence of pretext. (See Faust v. California Portland Cement Co., supra, 150 Cal.App.4th, at p. 885; see also Alcala v. Best Buy Stores, LP, supra, 2012 WL 6138332, at *6, citing Guz v. Bechtel Nat’l, Inc., supra, 24 Cal.4th, at p. 357.) To meet his burden, Wong must proffer substantial evidence to show that the proffered reason for the adverse employment action is untrue or pretextual, evidence that the employer acted in retaliation, or a combination of the two, such that a reasonable trier of fact could conclude the employer was more likely motivated by an unlawful reason or that the employer’s explanation is unworthy of credence. (See West v. Bechtel Corp. (2002) 96 Cal.App.4th 966, 978; see also Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1005; see also Granillo v. Exide Technologies, Inc. (C.D. Cal., May 20, 2011, No. CV 10-1080 SJO FMOX) 2011 WL 2535112, at *14; see also Nelson v. United Technologies (1999) 74 Cal.App.4th 597, 614; see also Johnson v. United Cerebral Palsy/Spastic Children’s Foundation of Los Angeles and Ventura Counties (2009) 173 Cal.App.4th 740, 758.)

Wong’s evidence shows that HP’s managers criticized his taking of leave to care for his mother, caused him to fear losing his job if he took leave in January 2013, and terminated his employment approximately one month after he requested protected family leave. (Wong’s UMF Nos. 8, 12, 28-31, 33-35, 44, 75.) His evidence also shows that he did not violate HP policy because HP lacked a procedure for obtaining permission to take property home, HP managers/employees informally followed certain procedures, and Wong’s taking of the subject equipment conformed with the informal procedures. (Id. Nos. 15-17, 24, 37-43, 46, 67, 70, 77-78.) The subject property was waste, and even after Wong returned it, HP discarded it. (Id. Nos. 46 & 71.) Additionally Wong’s evidence shows that he informed HP security of this information during the investigation. (Id. Nos. 57-60.) The evidence shows that Employee Relations initially recommended that Wong only receive a warning, and after Steven Geary (“Geary”) advised that he wanted to show a pattern of disregard for rules, practices, and authority, the recommendation was changed to termination. (Id. No. 72.) Taken together, Wong’s evidence constitutes sufficient evidence of pretext. Accordingly, Wong has met his burden in opposition to proffer substantial evidence of pretext. (See Faust v. California Portland Cement Co., supra, 150 Cal.App.4th, at p. 885; see also Alcala v. Best Buy Stores, LP, supra, 2012 WL 6138332, at *6, citing Guz v. Bechtel Nat’l, Inc., supra, 24 Cal.4th, at p. 357.) Therefore, he has met his burden in opposition to the motion to show a triable issue of material fact as to the CFRA retaliation claim.

B. Fourth Cause of Action for Wrongful Termination

A wrongful termination action follows the same burden-shifting analysis as a cause of action for retaliation in violation of the CFRA. (See Loggins v. Kaiser Permanente Internat. (2007) 151 Cal.App.4th 1102, 1108-1109; see also Faust v. California Portland Cement Co., supra, 150 Cal.App.4th, at p. 885.) HP cites case law holding that a wrongful termination claim necessarily lacks merit when it is derivative of FEHA retaliation and/or discrimination cause of action that lacks merit. (See Arteaga v. Brink’s, Inc. (2008) 163 Cal.App.4th 327, 355-356.) In its separate statement, HP merely incorporates its prior UMF by reference. (HP’s UMF No. 76.) As discussed above, HP’s evidence satisfies its initial burden to show a legitimate, non-retaliatory reason for termination. (See Loggins v. Kaiser Permanente Internat., supra, 151 Cal.App.4th, at p. 1109; see also Faust v. California Portland Cement Co., supra, 150 Cal.App.4th, at p. 885.) Since HP met its initial burden, the burden shifts to Wong to show substantial evidence that the proffered reason is untrue or pretextual. (See Loggins v. Kaiser Permanente Internat., supra, 151 Cal.App.4th, at p. 1109.) In his opposing separate statement, Wong incorporates his prior UMF by reference. (Wong’s UMF No. 76.) As set forth in detail above, Wong has submitted substantial evidence to show that HP’s proffered reason for his termination was untrue or pretextual. (See Faust v. California Portland Cement Co., supra, 150 Cal.App.4th, at p. 885; see also Alcala v. Best Buy Stores, LP, supra, 2012 WL 6138332, at *6, citing Guz v. Bechtel Nat’l, Inc., supra, 24 Cal.4th, at p. 357.) It follows that Wong has also shown substantial evidence of pretext in support of his wrongful termination claim. (See Loggins v. Kaiser Permanente Internat., supra, 151 Cal.App.4th, at p. 1109.) Accordingly, Wong has met his burden in opposition to the motion to show a triable issue of material fact as to the wrongful termination claim.

C. Fifth Cause of Action for Defamation

In support of the motion, HP first argues that Wong’s cause of action for defamation lacks merit because it is based on opinions, not false statements of fact. Since a defamatory statement must contain a provable falsehood, courts distinguish between statements of fact and statements of opinion for purposes of defamation liability. (McGarry v. University of San Diego (2007) 154 Cal.App.4th 97, 112.) The question is whether a reasonable fact finder could conclude the published statement declares or implies a provably false assertion of fact. (Id., at p. 113.) To determine whether a statement is actionable fact or nonactionable opinion, courts use a totality of the circumstances test of whether the statement in question communicates or implies a provably false statement of fact. (Ibid.) Under the totality of the circumstances test, the court first examines “the language of the statement” to determine whether the words must be understood in a defamatory sense and are therefore actionable. (Ibid.) Next, the court considers the context in which the statement was made. (Ibid.)

In its separate statement, HP first asserts that Wong cannot identify anyone who stated that he was terminated for theft and instead could only extrapolate and believes that he was falsely accused of being a thief and fired for it. (HP’s UMF No. 87.) This evidence does not negate the element of a defamatory statement. It also does not demonstrate that Wong does not possess and cannot obtain evidence to establish the allegedly false statements about stealing equipment because his testimony is not an admission to the effect that he had discovered nothing after extensive discovery. (See Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854-855.) Such evidence is therefore insufficient for HP to meet its initial burden. Next, HP asserts that Geary provided information to Employee Relations “regarding his past experience with Wong in an email dated February 12, 2013. (HP’s UMF No. 88.) The email submitted as evidence contains multiple statements about Wong and his purported pattern of dishonest behavior and unfitness. (Johnsrud Decl., Ex. C, at attached exhibit 83.) This email is distinguishable from the employee evaluation in Jensen v. Hewlett-Packard Co. (1993) 14 Cal.App.4th 958, 970-971. Under the first prong of the totality of the circumstances analysis, the language used in the email shows that the statements contained therein are defamatory in nature. Under the second prong, the context in which Geary’s statements were made shows that they declare or imply a provably false assertion of fact. Therefore, the email submitted by HP as evidence shows that Geary made actionably defamatory statements about Wong. In other words, HP’s own evidence shows that there is a triable issue of material fact as to whether its agent, Geary, made actionable defamatory statements about Wong. Therefore, HP has not met its burden to show that Wong cannot establish the element of a defamatory statement.

Next, HP argues that the allegedly defamatory statements are privileged. A privileged publication includes a publication made “[i]n a communication, without malice, to a person interested therein, (1) by one who is also interested, or (2) by one who stands in such a relation to the person interested as to afford a reasonable ground for supposing the motive for the communication to be innocent, or (3) who is requested by the person interested to give the information.” (Civ. Code, § 47, subd. (c), italics added.) “While defendants have the burden of proving that an allegedly defamatory statement falls within the scope of the common interest privilege, plaintiffs have the burden of proving that the statement was made with malice.” (Pashman v. Aetna Insurance Co (N.D. Cal., July 18, 2014, No. C-13-02835 DMR) 2014 WL 3571689, at *17.) HP’s evidence shows that Geary’s email falls within the scope of the privilege. (See HP’s UMF No. 88, citing Johnsrud Decl., Ex. C, at attached exhibit 83; see also Cuenca v. Safeway San Francisco Employees Fed. Credit Union (1986) 180 Cal.App.3d 985, 996.) In opposition, Wong submits evidence showing a triable issue of material fact as to whether Geary made the statements with malice. (See Wong’s UMF Nos. 88-89; see also Wong’s Ex. D; see also Johnsrud Decl., Ex. C, at attached exhibit 83; see also Cuenca v. Safeway San Francisco Employees Fed. Credit Union, supra, 180 Cal.App.3d, at pp. 996-997.)

Finally, HP asserts that the defamation claim is barred by the statute of limitations. A one-year statute of limitation applies to a defamation claim. (See CCP, § 340, subd. (c).) HP must submit evidence showing that the allegedly defamatory statements were made more than one year before this action was commenced on June 2, 2014, and (2) Wong either knew or should have known of the defamatory statements more than one year before the action was commenced. (See Shively v. Bozanich (2003) 31 Cal.4th 1230, 1237; see also Consumer Cause, Inc. v. SmileCare, supra, 91 Cal.App.4th, at pp. 467-468.) It submits no facts or evidence to show that Wong either knew or should have known of the defamatory statements more than one year before the action was commenced. Accordingly, HP has not met its initial burden to show that the defamation claim is barred by the statute of limitations.

In sum, HP is not entitled to summary adjudication of the defamation claim.

D. Sixth Cause of Action for IIED

The elements of a cause of action for intentional infliction of emotional distress include extreme and outrageous conduct. (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050.) A defendant’s conduct is “outrageous” when it is so extreme as to exceed all bounds of that usually tolerated in a civilized community. (Id., at pp. 1050-1051.) HP contends that Wong cannot establish the first element of extreme and outrageous conduct. It relies on Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 80. That case held that “[m]anaging personnel is not outrageous conduct beyond the bounds of human decency,” and “[a] simple pleading of personnel management activity is insufficient to support a claim of intentional infliction of emotional distress, even if improper motivation is alleged.” (Janken v. GM Hughes Electronics, supra, 46 Cal.App.4th, at p. 80.) It does not suggest that a defendant can never be liable for IIED when the conduct involves personnel management activity.

As a general rule, “conduct may be considered outrageous when a defendant abuses a position that gives it the power to damage a plaintiff’s interest.” (Kelly v. General Telephone Co. (1982) 136 Cal.App.3d 278, 287.) When the defendant spreads deliberately false statements about an employee’s purported misconduct which results in alteration of the former employee’s personnel records to reflect that he is ineligible for rehire, a position of power has been abused, and the conduct is extreme and outrageous. (Ibid.) HP’s own evidence shows that during HP’s investigation of Wong’s taking of equipment, Geary made statements about Wong with the intent that such information would reflect a pattern of dishonest behavior, a lack of integrity, and unfitness to work for HP. (E.g., HP’s UMF No. 88; Johnsrud Decl., Ex. C, at attached exhibit 83.) HP does not attempt to show that Geary’s allegedly false statements were in fact true, or that Wong does not possess and cannot obtain necessary evidence to prove that they were false. HP also does not attempt to demonstrate that Geary’s email had no effect on the decision to terminate Wong’s employment, or that Wong does not possess and cannot obtain evidence to establish that Geary’s conduct resulted in his termination. Thus, HP has not proffered evidence to show that Wong cannot establish that HP’s agent, Geary, engaged in extreme and outrageous conduct by abusing his position of authority in making false statements that resulted in Wong’s termination. Accordingly, HP has not met its initial burden.

E. Conclusion

In light of the foregoing, HP’s motion for summary judgment or, in the alternative, summary adjudication is DENIED.

F. Evidentiary Objections

Each of HP’s objections to Wong’s evidence lacks merit or is directed at evidence that was not considered because HP failed to meet its initial burden. Therefore, the objections are immaterial to the outcome of the motion, and the Court declines to rule on the objections. (See CCP, § 437c, subd. (q).)