Case Number: BC584757 Hearing Date: March 15, 2018 Dept: 47

Pedro Arenas v. Ecology Auto Parts, Inc. , et al.

MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION

MOVING PARTY: Defendants Ecology Auto Parts, Inc., Norwalk Industries, L.P. and Joe Kellejian

RESPONDING PARTY(S): Plaintiff Pedro Arenas

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiff alleges that he was discriminated against based on his age by virtue of being given harder assignments and eventually was terminated.

Defendants Ecology Auto Parts, Inc., Norwalk Industries, L.P. and Joe Kellejian move for summary judgment or, in the alternative, summary adjudication.

TENTATIVE RULING:

Defendants Ecology Auto Parts, Inc. and Norwalk Industries, L.P.’s motion for summary judgment is GRANTED.

However, on November 6, 2015, Defendant Joe Kellejian was voluntarily dismissed without prejudice by Plaintiff. As such, the motion is MOOT as to Defendant Kellejian, as the Court does not have jurisdiction to adjudicate Plaintiff’s claims against him.

DISCUSSION:

Requests For Judicial Notice

Defendants’ request that the Court take judicial notice of Plaintiff’s request for dismissal of Defendant Joe Kellejian from this action and of Plaintiff’s Complaint filed in this action is GRANTED per Evid. Code § 452(d)(court records).

Plaintiff requests that the Court take judicial notice of the following: (1) Certificate of Amendment to Articles of Incorporation of Ecology Auto Wrecking from California Secretary of State website, Business Entity Search; (2) California Secretary of State Statement of Information from California Secretary of State website, Business Entity Search; (3) Norwalk Industries Secretary of State Statement of Information filed 2002 from California Secretary of State website, Business Entity Search; (4) Norwalk Industries Amendment to Limited Partnership from California Secretary of State website, Business Entity Search; (5) JLP & VMS Secretary of State Statement of Information 11/12/13 from California Secretary of State website, Business Entity Search; (6) JLP & VMS Secretary of State Statement of Information April 2016 from California Secretary of State website, Business Entity Search. Requests Nos. 1-6 are GRANTED. The Court may take judicial notice of a business’ entity’s corporate status as reflected in the Secretary of State’s records. Gamet v. Blanchard (2001) 91 Cal.App.4th 1276, 1286; Pedus Bldg. Servs. v. Allen (2002) 96 Cal.App.4th 152, 156 n.2.

Defendants’ Evidentiary Objections

Pursuant to CCP § 437c(q), the Court only rules upon the evidentiary objections asserted against evidence which the Court deems to be material to the disposition of this action.

Request For Judicial Notice

Nos. 1 – 6: OVERRULED. Sufficiently authenticated; sufficient foundation; hearsay exception—authorized admission by party opponent; relevant.

Lugo Deposition

Nos. 10 – 13, 16, 17: OVERRULED. Objections not meritorious.

No. 28: OVERRULED. Objections not meritorious.

No. 30: OVERRULED. The particular objection asserted is not meritorious.

No. 31: SUSTAINED. Lack of foundation.

No. 32: SUSTAINED. Lack of foundation.

No. 33: OVERRULED. This particular portion of the deposition testimony is not inadmissible based upon the objections asserted.

Motion For Summary Judgment

As discussed below, Defendants Ecology Auto Parts, Inc. and Norwalk Industries, L.P. have demonstrated that they are entitled to judgment as to all causes of action asserted against them. Accordingly, Defendants Ecology Auto Parts, Inc. and Norwalk Industries, L.P.’s motion for summary judgment is GRANTED.

However, on November 6, 2015, Defendant Joe Kellejian was voluntarily dismissed without prejudice by Plaintiff. As such, the motion is MOOT as to Defendant Kellejian, as the Court does not have jurisdiction to adjudicate Plaintiff’s claims against him.

Motion For Summary Adjudication

1. Issue No. 1: “Neither Ecology Nor Kellejian Were Plaintiff’s Employer and Are Not Proper Defendants.”

As to Defendant Ecology Auto Parts, Inc., Defendant’s position is that Norwalk employed yard workers at several auto salvage yards which were owned by Ecology. UF No. 3; Declaration of Ramon Lugo, ¶ 4. In San Diego, Ecology owned five salvage yards—Brown Field, Chula Vista, Mesa, 850 and Scrap yards—at which Norwalk employees provided some employees. UF No. 4; Depo. of Pedro Arenas, 180:16-18; Lugo Decl., ¶ 5. According to Defendant, Plaintiff was employed by Norwalk from December 23, 1987 until September 18, 2013. UF No. 6; Arenas Depo. at 17:7-8, 88:4-7, 123:12-19, 124:3-7; Lugo Decl., ¶¶ 6, 14; Sorrentino Decl., ¶ 3. According to Defendant, at all times relevant, Plaintiff was employed as an at-will employee of Norwalk, but was never employed by Ecology. UF Nos. 9, 10; Arenas Depo. at 93:12-94:3, 100:11-101:2, 124:10-125:10, 126:18-127:11, 127:17-129:7; Norwalk’s Handbooks dated pre-December 2011 and December 1, 2011 and Plaintiff’s Signed Employee Handbook Acknowledgments, dated December 12, 2001 and January 27, 2012; Def’s Exhs 3 – 6; Lugo Decl., ¶¶ 3, 7. According to Defendant, Plaintiff received compensation only from Norwalk and the decision to lay off Plaintiff was made by Norwalk. UF Nos. 11, 12; Arenas Depo., at 9:25-10:4, 179:13-17; Lugo Decl., ¶¶ 7, 13; Sorrentino Decl., ¶ 3.

The foregoing evidence is sufficient to demonstrate that Plaintiff was employed by Norwalk, not Ecology. All of the causes of action alleged in the Complaint arise out of actions taken by Plaintiff’s employer against Plaintiff. As such, Defendant Ecology Auto Parts has met its burden of demonstrating that it is entitled to judgment as to all causes of action because it did not employ Plaintiff. The burden shifts to Plaintiff to raise a triable issue of material fact.

Plaintiff has argues that Ecology Auto Parts, Inc. owns Norwalk Industries, L.P. and that both are owned by Charles Siroonian; Siroonian is the CEO of Ecology Auto Parts and Louis Pratty is an officer and managing partner of both corporations. Opp. Fact Nos. 3; Pltf’s RJN Exhs. A – F. While this only goes to alter ego[1]—which is insufficient to make Ecology Plaintiff’s employer—there are other facts which raise a triable issue as to whether Ecology is a joint employer with Norwalk Industries.

There are few California cases defining an “employer” under the FEHA provisions invoked here. But, it appears, traditional common law principles of agency and respondeat superior supply the proper analytical framework under FEHA, as they do for franchising generally. Courts in FEHA cases have emphasized “the control exercised by the employer over the employee’s performance of employment duties.” (Bradley v. Department of Corrections & Rehabilitation (2008) 158 Cal.App.4th 1612, 1626 [71 Cal. Rptr. 3d 222], citing Vernon, supra, 116 Cal.App.4th 114, 124–125; accord, McCoy v. Pacific Maritime Assn. (2013) 216 Cal.App.4th 283, 301–302 [156 Cal. Rptr. 3d 851].) This standard requires a “comprehensive and immediate level of ‘day-to-day’ authority” over matters such as hiring, firing, direction, supervision, and discipline of the employee. (Vernon, supra, 116 Cal.App.4th at pp. 127–128.)

Patterson v. Domino’s Pizza, LLC (2014) 60 Cal.4th 474, 499.

Factors to be taken into account in assessing the relationship of the parties include payment of salary or other employment benefits and Social Security taxes, the ownership of the equipment necessary to performance of the job, the location where the work is performed, the obligation of the defendant to train the employee, the authority of the defendant to hire, transfer, promote, discipline or discharge the employee, the authority to establish work schedules and assignments, the defendant’s discretion to determine the amount of compensation earned by the employee, the skill required of the work performed and the extent to which it is done under the direction of a supervisor, whether the work is part of the defendant’s regular business operations, the skill required in the particular occupation, the duration of the relationship of the parties, and the duration of the plaintiff’s employment. (Citations omitted.) “ ‘Generally, … the individual factors cannot be applied mechanically as separate tests; they are intertwined and their weight depends often on particular combinations.’ [Citation.]” (S.G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341, 351 [256 Cal. Rptr. 543, 769 P.2d 399], fn. omitted.)

[*126] “Of these factors, the extent of the defendant’s right to control the means and manner of the workers’ performance is the most important.” (Citations omitted.) In all cases, an “employer must be an individual or entity who extends a certain degree of control over the plaintiff.” (Lee v. Mobile County Com’n, supra, at p. 1545.) The focus of our evaluation of the right to control the plaintiff’s work performance is upon “not only the result but also the means by which the result was accomplished.” (Ali v. L.A. Focus Publication, supra, 112 Cal.App.4th 1477, 1485.) And particularly, the inquiry considers the level of control an organization asserts over an individual’s access to employment opportunities. (Graves v. Lowery, supra, 117 F.3d 723, 728; Sibley Memorial Hospital v. Wilson, supra, 488 F.2d 1338, 1342.) Further, “the control an organization asserts must be ‘significant,’ [citation], and there must be a ‘sufficient indicia of an interrelationship … to justify the belief on the part of an aggrieved employee that the [alleged co-employer] is jointly responsible for the acts of the immediate employer.’ [Citations.]” (Choe-Rively v. Vietnam Veterans of America, supra, 135 F. Supp. 2d 462, 470; see also Graves v. Lowery, supra, at p. 728; Armbruster v. Quinn (6th Cir. 1983) 711 F.2d 1332, 1337.) In determining liability under the FEHA, we look “ ‘to the degree an entity or person significantly affects access to employment’ … .” (Matthews v. Superior Court (1995) 34 Cal.App.4th 598, 604 [40 Cal. Rptr. 2d 350], citation omitted.)

. . . [*127] . . .

. . . A finding of the right to control employment requires a much more comprehensive and immediate level of “day-to-day” authority over employment decisions. (See Laird v. Capital Cities/ABC, Inc., supra, 68 Cal.App.4th 727, 738.) The “right to control” the employment relationship which is essential to subject the defendant to liability is evaluated by focusing on “an examination of defendant’s role with respect to the right to hire, fire, transfer, promote, discipline, set the terms, conditions and privileges of employment, train and pay the plaintiff.” (Lee v. Mobile County Com’n, supra, 954 F. Supp. 1540, 1545, affd. 103 F.3d 148; see also E.E.O.C. v. Fawn Vendors, Inc., supra, 965 F. Supp. 909, 911.) . . .

Vernon v. State of California (2004) 116 Cal.App.4th 114, 125-28 (bold emphasis added).

Here, Plaintiff has presented evidence that Ecology Auto Parts, Inc. Human Resources Director Ramon Lugo authorized the termination of Plaintiff on September 18, 2013. Pltf’s Additional Fact (“AF) No. 9; Pltf’s Exh. 4. Indeed, Ecology was the entity which made the decision to cut employees because Ecology could no longer support having as many employees. See Lugo Depo. at 38:18-25:

Q. What was the reason behind the layoff of Mr. Arenas?

A. The reason for the layoff of Mr. Arenas was not just Mr. Arenas. What happened was there was a downturn in business and due to that, . . . Ecology couldn’t any longer support having as many employees. So they asked Norwalk to – to make some cuts and Mr. Arenas happened to be one of them.

Even though the paychecks had the Norwalk division name on them, payroll was managed by Human Resources at Ecology. AF No. 14; Lugo Depo., at 19:20-23. All Human resources functions for the Norwalk division were provided by Ecology—Ecology’s HR department provided all the HR services for Norwalk. AF No. 15; Lugo Depo. at 21:13-18. Lugo testified that he “did not recall” where the money used for the payroll for Norwalk Industries came from. Lugo Depo. at Page 31:3-16; 32:3-20.

Moreover, Ecology owned the salvage yards (which they called Norwalk Industries) and operated and managed the salvage yards and the employees there. AF No. 16; Lugo Decl., at 24:14-19. AF No. 18; Lugo Depo. at 30:6-8. Part of the Ecology Human Resource Director’s role was to make sure the employees working at the Norwalk yard did not violate the law. AF No. 19; Lugo Depo., at 36:10-11; 36:15-18. Ecology Human Resources was responsible to review the termination of employees and make sure they were not discriminating against the employees. AF No. 20; Lugo Depo., at 37:15-19.

The foregoing evidence is sufficient to raise a triable issue of material fact as to whether Ecology was a joint employer (with Norwalk) of Plaintiff.

As such, the motion for summary adjudication as to Issue No. 1 re: Ecology Auto parts, Inc. not being a proper defendant is DENIED.

2. Issue No. 2: “There Is No Triable Issue of Fact As To Plaintiff’s First Cause of Action For Age Discrimination In Violation of California Government Code Sections 12940, et seq. [and in] Violation of Article I, Section 8 of the California Constitution.”

California Constitution, Art. I § 8 provides: “A person may not be disqualified from entering or pursuing a business, profession, vocation, or employment because of sex, race, creed, color, or national or ethnic origin.” However, there is no direct cause of action under California Constitution, Article I, Section 8:

The California Constitutional provision at issue here does not provide “rules by means of which” the principles at issue could be given force of law. Id. As in Leger, the provisions are devoid of “guidelines, mechanisms or procedures from which a damages remedy could be inferred.” Id. There is no indication of what the scope of a Section 8 private action for employment discrimination would be. Would exhaustion of administrative remedies be required, for example? Could individuals be held liable or only employers?

Defendants seem to concede that a cause of action for gender discrimination resulting in termination would be viable under Section 8, but even this is not entirely correct. Wrongful discharge in violation of the public policy against gender discrimination constitutes a tort under California law. Rojo v. Kliger, 52 Cal. 3d 65, 276 Cal. Rptr. 130, 801 P.2d 373 (1990). This cause of action is based on the fundamental public policy underlying Section 8, equal opportunity in employment, but is not itself a direct cause of action arising under Section 8. See id. at 88-91. Thus, it appears that there must exist a state tort law mechanism in order to bring a private cause of action to vindicate the public policy against discrimination underlying Article I, Section 8. See Tameny v. Atlantic Richfield Co., 27 Cal. 3d 167, 176-77, 164 Cal. Rptr. 839, 610 P.2d 1330 (1980) (recognizing the state tort of wrongful termination in violation of public policy); Foley v. Interactive Data Corp., 47 Cal. 3d 654, 665-69, 254 Cal. Rptr. 211, 765 P.2d 373 (1988) (describing the parameters of the tort). Whereas California courts have held that there is such a mechanism to redress wrongful discharge in violation of public policy, Rojo, 52 Cal. 3d at 88-91, no California court has recognized a comparable mechanism to redress wrongful failure to provide equal promotional opportunities or equal working conditions–the violations which plaintiff alleges.

For these reasons, the Court grants defendants’ motion to dismiss the California Constitutional claims. Although Article I, Section 8 sets forth a fundamental principle of equal employment opportunity, it does not itself create a cause of action to redress private employment discrimination not resulting in termination. No existing state tort creates a mechanism for bringing a claim to redress such discrimination. This Court declines to recognize a new such tort under California law.

Himaka v. Buddhist Churches of Am. (N.D. Cal. 1995) 919 F. Supp. 332, 334-35.

Accordingly, the Court will only address whether a triable issue of material fact exists as to Plaintiff’s FEHA claim for age discrimination.

In order to make out a prima facie case of age discrimination under FEHA, a plaintiff must present evidence that the plaintiff (1) is over the age of 40; (2) suffered an adverse employment action; (3) was performing satisfactorily at the time of the adverse action; and (4) suffered the adverse action under circumstances that give rise to an inference of unlawful discrimination, i.e., evidence that the plaintiff was replaced by someone significantly younger than the plaintiff. (Hersant, supra, 57 Cal.App.4th at pp. 1002–1003.) n12

Sandell v. Taylor-Listug, Inc. (2010) 188 Cal.App.4th 297, 321 (bold emphasis added).

An employee alleging age discrimination must ultimately prove that the adverse employment action taken was based on his or her age. Since direct evidence of such motivation is seldom available, the courts use a system of shifting burdens as an aid to the presentation and resolution of age discrimination cases. (Citations omitted.) That system necessarily establishes the basic framework for reviewing motions for summary judgment in such cases. (Citations omitted.)

The burden-shifting system requires the employee first establish a prima facie case of age discrimination. If the employee does so, the employer is required to offer a legitimate non-age-based reason for the adverse employment action. If it does not, then the employee prevails. (Citations omitted.)

Given the varying nature of the problem, it is impossible to make an exact, all-inclusive statement of the elements of a prima facie age discrimination case applicable in all situations. (Citations omitted.) The general requirement is that the employee offer circumstantial evidence such that a reasonable inference of age discrimination arises. The requirement is not an onerous one. (Citation omitted.)

In the context of the present case, a reasonable inference, that is, a prima facie case, of age discrimination arises when the employee shows (1) at the time of the adverse action he or she was 40 years of age or older, (2) an adverse employment action was taken against the employee, (3) at the time of the adverse action the employee was satisfactorily performing his or her job and (4) the employee was replaced in his position by a significantly younger person. (Citations omitted.)

Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1002-03 (bold emphasis added).

Plaintiff alleges there were two ways in which he suffered age discrimination. One, he was forced to do more and more work and to perform work on his own that required more than one person to complete. Complaint, ¶ 26(B). Also, Plaintiff’s work scheduled would be unexpectedly changed to cause Plaintiff distress. Id. Plaintiff was also transferred to a hard position without a corresponding increase in pay. Id. Two, Plaintiff alleges that on September 18, 2013, he was terminated based on his age. Complaint, ¶ 26(D). Plaintiff alleges that he was replaced with a younger, cheaper worker. ¶ 26(F).

Plaintiff testified that no one, including the owners of Ecology, ever made any statements that Plaintiff considered to be offensive in any way during his employment. UF No. 25; Arenas Depo. at 24:19-25:11, 26:5-22.

From January 1997 through February 14, 2012, Plaintiff was employed at the Brown Field yard, and he was foreman of the Brown Field yard beginning on February 1, 2005. UF No. 29; Lugo Dccl., ¶ 9. The Brown Field yard handled salvaging both foreign and domestic cars and processed about 1,100 cars per month. UF No. 30; Arenas Depo. at 29:10-19. On February 10, 2012, Plaintiff was given notice that he was being transferred on February 14, 2012 from the Brown Filed yard to the Chula Vista yard, which are located a few minutes away from one another. UF No. 31; Arenas Depo. at 130:18-131:12; Def’s Exh. 7; Lugo Decl., ¶¶ 3, 10. From February 14, 2012 to September 18, 2013, Plaintiff was employed as a foreman at the Chula Vista yard. UF No. 32; Arenas Depo. at 18:6-8; 13:15-131:12, 156:16-18; Lugo Decl., ¶¶ 10, 12, 14. The Chula Vista Yard to which Plaintiff was transferred was much smaller than the Brown Field yard—it salvaged only domestic cars and processed only about 550 cars per month. UF No. 33; Arenas Depo. at 29:20-30:13. Plaintiff admitted that he worked the same hours for the same pay at the Chula Vista yard, while being required to perform fewer job duties at a smaller yard. UF No. 34; Arenas Depo. at 68:9-17, 130:18-132:6.

Plaintiff was laid off from his employment on September 18, 2013 by Norwalk’s Director of Human Resources, Ramon Lugo. UF No. 41; Arenas Depo. at 17:7-16, 22:25-23:6; Lugo Decl., ¶¶ 2, 14. Lugo advised Plaintiff he was being laid off, and made no comments regarding Plaintiff’s age. UF No. 43; Arenas Depo. at 58:1-59:23; Lugo Decl., ¶ 14. Plaintiff admitted at his deposition that he was laid off because Norwalk ceased doing business: on his employment application for his subsequent employer, McMahon Steel Company, Inc., Plaintiff certified that the reason for leaving his prior employment with Norwalk was “Company closed down.” UF No. 45; Arenas Depo. at 8:20-23, 41:5-42:24, 43:15-44:13.

On July 20, 2015, Ecology sold the salvage yard business to a competitor. UF No. 46; Lugo Decl., ¶ 16. Some former Norwalk yard workers may have applied and were hired by this competitor and, therefore, may have continued to work at these yard locations, but were/are no longer employed by Norwalk. UF No. 47; Arenas Depo. at 78:10-17; Lugo Decl., ¶ 16. No one was hired to replace Plaintiff. UF No. 48; Lugo Decl., ¶ 15.

Plaintiff testified at his deposition that he bases his age discrimination and wrongful termination claims on the following: In or around the middle of 2015, he saw an individual walking down the street and Plaintiff assumed the individual was hired to replace him at Norwalk. Plaintiff describes this individual as a 28 year old Mexican male wearing a white shirt with an Ecology logo on it. UF No. 49; Arenas Depo. at 137:20-141:6, 151:23-155:24. This sighting is the only evidence Plaintiff has to support his age discrimination claim. UF No. 50; Arenas Depo. at 154:14-155:1. Plaintiff only saw the 28 year old Mexican male walking down the street one time, but not in the Chula Vista yard. UF No. 51; Arenas Depo. at 153:2-8. Plaintiff just assumed this person had taken Plaintiff’s place as foreman of the Chula Vista yard. UF no. 52; Arenas Depo. at 152:23-153:1. However, Plaintiff does not have personal knowledge of whether anyone actually took his place after his employment was terminated on September 18, 2013. UF No. 53; Arenas Depo. at 141:7-11.

The foregoing evidence demonstrates that: (1) Plaintiff did not suffer any adverse employment action in terms of his transfer, much less one based upon his age; and (2) Plaintiff does not have evidence that his layoff was motivated by age discrimination. The burden shifts to Plaintiff to raise a triable issue of material fact as to either of these theories.

At Opp. Fact No. 33, Plaintiff indicates that a year and a half before he was terminated, he was transferred from the Bloomfield yard to the Norwalk yard and replaced with a younger employee as a foreman. However, if the transfer to the Norwalk yard did not constitute an adverse employment action[2], i.e. a reduction in pay or hindrance of promotional opportunities, this fact is irrelevant.

At Opp. Fact No. 41, Plaintiff disputes the characterization of his termination of employment as a layoff. However, for purposes of the instant analysis, this is a distinction without a difference. It is undisputed that Plaintiff no longer worked for Plaintiff after September 18, 2013, as Plaintiff alleges in ¶ 14 of the Complaint.

At Opp. Fact No. 45, Plaintiff disputes that he admitted he left his prior employment because the Company closed down, indicating that the application was written in English by Plaintiff’s daughter. However, Plaintiff cannot escape this authorized admission by claiming his daughter wrote it.

At Opp. Fact No. 46, Plaintiff laughably refers to a “72 year old man” being the only other person terminated at the tie in September 2013. This “72 year old man” was former Defendant Joe Kellejian, whom Plaintiff dismissed, perhaps to enable a twisted alignment with a former defendant. To the extent that Plaintiff intends to rely upon that fact that he—a 45-year old[3]—and former Defendant Kellejian—a 72 year old—were selected for termination due to their age simply by virtue of their age, this evidence is insufficient to give rise to an inference of intentional age discrimination.

Moreover, although at Opp. Facts Nos. 48, 51, 52 and AF Nos. 34, 35 Plaintiff cites his deposition testimony that a younger person—whom he believed previously replaced him as foreman in connection with his earlier transfer from the Brownfield yard to the Norwalk yard, took his place after he was terminated, this evidence is entirely speculative. Arenas Depo. at 164:23-25; 165:1-21; 172:12-16; 173:3-9.

“The party opposing the summary judgment must make an independent showing by a proper declaration or by reference to a deposition or another discovery product that there is sufficient proof of the matters alleged to raise a triable question of fact if the moving party’s evidence, standing alone, is sufficient to entitle the party to judgment. [Citations.] To avoid summary judgment, admissible evidence presented to the trial court, not merely claims or theories, must reveal a triable, material factual issue. [Citation.] Moreover, the opposition to summary judgment will be deemed insufficient when it is essentially conclusionary, argumentative or based on conjecture and speculation.” (Wiz Technology, Inc. v. Coopers & Lybrand (2003) 106 Cal.App.4th 1, 10–11 [130 Cal. Rptr. 2d 263] (Wiz Technology).)

Trujillo v. First American Registry, Inc. (2007) 157 Cal.App.4th 628, 635 (bold emphasis added).

“There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Id. at p. 850, fn. omitted.) Thus, a party “cannot avoid summary judgment by asserting facts based on mere speculation and conjecture, but instead must produce admissible evidence raising a triable issue of fact. [Citation.]” (LaChapelle v. Toyota Motor Credit Corp. (2002) 102 Cal.App.4th 977, 981 [126 Cal. Rptr. 2d 32].)

Dollinger DeAnza Associates v. Chicago Title Ins. Co. (2011) 199 Cal.App.4th 1132, 1144-45 (bold emphasis added).

“It is not enough to produce just some evidence. The evidence must be of sufficient quality to allow the trier of fact to find the underlying fact in favor of the party opposing the motion for summary judgment.”

Miller v. American Greetings Corp. (2008) 161 Cal.App.4th 1055, 1061 (bold emphasis added).

Here, Plaintiff has only presented evidence that a year and half before Plaintiff was terminated, he was transferred from the Brownfield yard to the Norwalk yard, and was replaced as foreman (at the Brownfield yard) by a younger employee, 26 year old Pepe. AF No. 34; Arenas Depo. at 164:23-25, 165:1-21. Plaintiff leaps to the conclusion that he was replaced at the Norwalk yard by this person because he saw this same person in 2015—more than a year after he was terminated—walking on the street with an Ecology shirt into the Chula Vista yard. AF No. 35; Arenas Depo. at 164:10-22, 172:12-173:9. It is entirely speculative and conjectural for Plaintiff to conclude that Pepe replaced Plaintiff as foreman at the Norwalk yard. Plaintiff had the opportunity to conduct discovery to ascertain whether Pepe did, in fact, take over Plaintiff’s position as foreman after Plaintiff’s employment was terminated. Plaintiff did not do so. Plaintiff has failed to produce evidence of sufficient quality to allow the trier of fact to find that Defendant terminated Plaintiff’s employment due to Plaintiff’s age.

As such, Plaintiff has failed to meet his burden of demonstrating that a triable issue of material fact exists.

The motion for summary adjudication as to Issue No. 2 re: the first cause of action is GRANTED.

3. Issue No. 3: “There Is No Triable Issue of Fact As To Plaintiff’s Second Cause of Action For Wrongful Termination In Violation of Public Policy.”

A wrongful termination in violation of public policy claim fails if it is based on the public policy set forth in a failed FEHA claim. Acuna v. San Diego Gas & Electric Co. (2013) 217 Cal.App.4th 1402, 1420.

For the reasons discussed above re: Issue No. 2, which is incorporated herein by reference, Plaintiff’s wrongful termination in violation of public policy claim also fails.

The motion for summary adjudication as to Issue No. 3 re: the second cause of action is GRANTED.

4. Issue No. 4: “There Is No Triable Issue of Action As To Plaintiff’s Third Cause of Action For Intentional Infliction of Emotional Distress.”

“The elements of the tort of intentional infliction of emotional distress are: ‘ “(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct. …” Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.’ [Citation.]” (Citation omitted.) “It is not enough that the conduct be intentional and outrageous. It must be conduct directed at the plaintiff, or occur in the presence of a plaintiff of whom the defendant is aware.” (Ibid.)

Catsouras v. Department of California Highway Patrol (2010) 181 Cal.App.4th 856, 874-75.

An essential element of such a claim is a pleading of outrageous conduct beyond the bounds of human decency. (See, e.g., Cole v. Fair Oaks Fire Protection Dist. (1987) 43 Cal. 3d 148, 155 [233 Cal. Rptr. 308, 729 P.2d 743]; Agarwal v. Johnson (1979) 25 Cal. 3d 932 [160 Cal. Rptr. 141, 603 P.2d 58].) Managing personnel is not outrageous conduct beyond the bounds of human decency, but rather conduct essential to the welfare and prosperity of society. 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. If personnel management decisions are improperly motivated, the remedy is a suit against the employer for discrimination.

Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 80.

Moreover, to the extent Plaintiff alleges that his termination constituted extreme and outrageous conduct, “the termination of a business relationship, is, as [a] matter of law, not the type of ‘outrageous’ conduct that is required to support a cause of action for intentional infliction of emotional distress.” Unterberger v. Red Bull North America, Inc. (2008), 162 Cal.App.4th 414, 423. “[T]he distress of being terminated does not by itself give rise to a viable emotional distress cause of action.” Heller v. Pillsbury Madison & Sutro (1996) 50 Cal.App.4th 1367, 1389.

Finally, although emotional distress damages may be recovered in connection with FEHA causes of action[4], there are no independent causes of action for IIED or NIED based on the treatment Plaintiff suffered in her terms of employment. The oft-cited rule is that emotional distress damages arising out of discriminatory practices in violation of FEHA are not barred by workers compensation exclusivity. Accardi v. Superior Court (1993) 17 Cal.App.4th 341, 352. However, this has been held to mean that a Tameny action may proceed despite the workers compensation exclusivity rule, and that emotional distress damages are recoverable in connection with a FEHA cause of action, but independent causes of action for intentional infliction of emotional distress and negligent infliction of emotional distress are barred by the workers’ compensation exclusivity rule:

Physical and emotional injuries sustained in the course of employment are preempted by the workers’ compensation scheme and generally will not support an independent cause of action. (Cole v. Fair Oaks Fire Protection Dist. (1987) 43 Cal.3d 148, 160 [233 Cal. Rptr. 308, 729 P.2d 743] (Cole).) Emotional injuries caused by workplace discipline, including termination, fall within this rule. (Ibid.; see Shoemaker v. Myers (1990) 52 Cal.3d 1, 7 [276 Cal. Rptr. 303, 801 P.2d 1054].) As noted in Cole, supra, 43 Cal.3d at page 160, “when the misconduct attributed to the employer is actions which are a normal part of the employment relationship, such as demotions, promotions, criticism of work practices, and frictions in negotiations as to grievances, an employee suffering emotional distress causing disability may not avoid the exclusive remedy provisions of the Labor Code by characterizing the employer’s decisions as manifestly unfair, outrageous, harassment, or intended to cause emotional disturbance resulting in disability.”

Yau relies on a series of cases that have found exceptions to this general rule of preemption when the intentional infliction of emotional distress claim is based on conduct that violates a fundamental public policy. (See, e.g., Cabesuela v. Browning-Ferris Industries of California, Inc. (1998) 68 Cal.App.4th 101 [80 Cal. Rptr. 2d 60]; Leibert v. Transworld Systems, Inc. (1995) 32 Cal.App.4th 1693 [39 Cal. Rptr. 2d 65]; Phillips v. Gemini Moving Specialists (1998) 63 Cal.App.4th 563 [74 Cal. Rptr. 2d 29].) Those cases were decided before our Supreme Court’s decision in Miklosy v. Regents of University of California (2008) 44 Cal.4th 876 [80 Cal. Rptr. 3d 690, 188 P.3d 629] (Miklosy), which held the exception to workers’ compensation preemption for employer “conduct that ‘contravenes fundamental public policy’ is aimed at permitting a Tameny action [for wrongful discharge in violation of public policy] to proceed despite the workers’ compensation exclusive remedy rule.” (Id. at pp. 902–903.) This exception does not, however, allow a “‘distinct cause of action, not dependent upon the violation of an express statute or violation of fundamental public policy.’” (Id. at p. 902.) Miklosy held that even “‘severe emotional distress’” arising from “‘outrageous conduct’” that occurred “at the worksite, in the normal course of the employer-employee relationship” is the type of injury that falls within the exclusive province of workers’ compensation. (Ibid.) “‘An employer’s intentional misconduct in connection with actions that are a normal part of the employment relationship … resulting in emotional injury is considered to be encompassed within the compensation bargain, even if the misconduct could be characterized as “manifestly unfair, outrageous, harassment, or intended to cause emotional disturbance.”’ [Citations.]” (Vasquez, supra, 222 Cal.App.4th at p. 833.) Accordingly, the trial court did not err by sustaining the demurrer as to this cause of action.

Yau v. Allen (2014) 229 Cal.App.4th 144, 160-62 (bold emphasis added).

In light of the above discussion of the evidence submitted, no triable issue of material fact exists as to whether Plaintiff can state a cause of action for intentional infliction of emotional distress.

The motion for summary adjudication as to Issue No. 4 re: the third cause of action is GRANTED.

5. Issue No. 5: “There Is No Triable issue of Fact As To Plaintiff’s Fourth Cause of Action For Breach of Implied Contract Not To Terminate Except For Good Cause.”

Plaintiff alleges that it was reasonable for him to conclude from Defendants’ conduct that he would be discharged only for good cause because he had received oral assurances of continued employment with Defendants, there was no at-will employment policy, and there was an implied contract that if Plaintiff continued to work for Defendants for years instead of taking his experience and going to work for someone else, Plaintiff would be given continued employment; Plaintiff received raises based on his performance as a means to keep him working for Defendants. Complaint, ¶ 117. Plaintiff alleges that Defendants’ actions and communications reasonably suggest to Plaintiff that he had earned a contractual right against future termination at will and that he would not be terminated except for good cause. ¶ 118.

Here, Defendant has presented evidence that in 2011 and 2012 the employee handbooks presented to Plaintiff in Spanish (his first language), as well as in English provided that “[a]ll employment at the Company is ‘at will.’ This means that both employees and the Company have the right to terminate employment at any time, with or without advance notice, with or without cause.” UF Nos. 18-20; Arenas Depo. at 93:12-94:3, 100:14-101:2, 124:10-125;10, 126:18-129:7; Def’s Exhs. 3 – 6, respective Acknowledgements signed by Plaintiff; Lugo Decl, ¶¶ 3, 8. The handbooks further provided:

No one other than the President of the Company has the authority to alter this arrangement, to enter into an agreement for employment for a specified period of time, or to make any agreement contrary to this policy [and] any such agreement must be in writing, must be signed by an officer of the Company and by the affected employee, and must express a clear and unambiguous intent to alter the at-will nature of the employment relationship.

UF No. 21; Def’s Exhs. 3 -5, Pages 000079, 000152 and 000235, respectively; Lugo Decl., ¶ 3.

The foregoing evidence is sufficient to establish that Plaintiff’s employment was at will, and his allegations that there was an implicit understanding that his employment was for cause—in contradiction to the written agreement—is without merit:

The trial court’s summary adjudication ruling is based solely on the “at-will” provision in the Compensation Plan. If an employee is “at-will,” the employer may “act peremptorily, arbitrarily, or inconsistently [in terminating the employee], without providing specific protections such as prior warning, [*604] fair procedures, objective evaluation, or preferential reassignment.” (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 350 [100 Cal. Rptr. 2d 352, 8 P.3d 1089] (Guz).)

“ ‘ “There cannot be a valid express contract and an implied contract, each embracing the same subject, but requiring different results.” [Citations.] The express term is controlling even if it is not contained in an integrated employment contract. [Citation.] Thus, the … at-will agreement preclude[s] the existence of an implied contract requiring good cause for termination.’ ” (Starzynski v. Capital Public Radio, Inc. (2001) 88 Cal.App.4th 33, 38 [105 Cal. Rptr. 2d 525]; Camp v. Jeffer, Mangels, Butler & Marmaro (1995) 35 Cal.App.4th 620, 630 [41 Cal. Rptr. 2d 329].) When the employment contract contains an “at-will” provision, an employee’s “reliance on … oral promises of continuing employment is simply not justifiable … .” (Slivinsky v. Watkins-Johnson Co. (1990) 221 Cal. App. 3d 799, 807 [270 Cal. Rptr. 585].) In Guz, the court observed that most California cases “have held that an at-will provision in an express written agreement, signed by the employee, cannot be overcome by proof of an implied contrary understanding.” (Guz, supra, 24 Cal.4th at p. 340, fn. 10.) This court has followed that rule. (Tollefson v. Roman Catholic Bishop (1990) 219 Cal. App. 3d 843, 855–856 [268 Cal. Rptr. 550], disapproved on another ground in Scott v. Pacific Gas and Electric Company (1995) 11 Cal.4th 454, 474, fn. 5 [46 Cal. Rptr. 2d 427, 904 P.2d 834], disapproved on another ground in Guz, supra, at p. 352, fn. 17.)

. . . [*605] . . .

We agree with the trial court that parol evidence is inadmissible to vary the “at-will” term of the parties’ agreement. Nonetheless, Astor is not entitled to judgment as a matter of law on Agosta’s misrepresentation causes of action. “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action … .” (Code Civ. Proc., § 437c, subd. (f)(1).)

Agosta v. Astor (2004) 120 Cal.App.4th 596, 603-05 (bold emphasis added).

Plaintiff claims a triable issue of material fact exists with respect to his claim for breach of implied contract because, even though he signed the document acknowledging his employment was at will, he received verbal assurances from his supervisor, Phil Corriveau, that his employment was secure as long as his performance remained satisfactory. We disagree.

Labor Code section 2922 provides: “An employment, having no specified term, may be terminated at the will of either party on notice to the other. Employment for a specified term means an employment for a period greater than one month.”

“Labor Code section 2922 establishes the presumption that an employer may terminate its employees at will, for any or no reason. A fortiori, the employer may act peremptorily, arbitrarily, or inconsistently, without providing specific protections such as prior warning, fair procedures, objective evaluation, or preferential reassignment.” (Guz v. Bechtel National, Inc. (2000) 24 Cal. 4th 317, 350 [100 Cal. Rptr. 2d 352, 8 P.3d 1089].)

“Labor Code section 2922, which provides that an employment relationship of unspecified duration may be terminated at the will of either party, establishes a presumption of at-will employment. This presumption may be overcome by evidence of an implied agreement that the employment would continue indefinitely, pending the occurrence of some event such as the employer’s dissatisfaction with the employee’s services or the existence of a cause for termination. (Foley v. Interactive Data Corp. (1988) 47 Cal. 3d 654, 680 [254 Cal. Rptr. 211, 765 P.2d 373].) ‘[F]actors apart from consideration and express terms may be used to ascertain the existence and content of an employment agreement, including the personnel policies or practices of the employer, the employee’s longevity of service, actions or communications by the employer reflecting assurances of continued employment, and the practices of the industry in which the employee is engaged.’ [Citation.]” (Soules v. Cadam, Inc. (1991) 2 Cal. App. 4th 390, 399-400 [3 Cal. Rptr. 2d 6], disapproved on other grounds in Turner v. Anheuser-Busch, Inc. (1994) 7 Cal. 4th 1238, 1251 [32 Cal. Rptr. 2d 223, 876 P.2d 1022].)

However, ” ‘there cannot be a valid express contract and an implied contract, each embracing the same subject, but requiring different results.’ [Citations.] The express term is controlling even if it is not contained in an integrated employment contract. [Citation.] Thus, the . . . at-will agreement precluded the existence of an implied contract requiring good cause for termination.” (Camp v. Jeffer, Mangels, Butler & Marmaro (1995) 35 Cal. App. 4th 620, 630 [41 Cal. Rptr. 2d 329], citing Shapiro v. Wells Fargo Realty Advisors (1984) 152 Cal. App. 3d 467, 482 [199 Cal. Rptr. 613].) The California Supreme Court recently observed in dictum that most California cases “have held that an at-will provision in an express written agreement, signed by the employee, cannot be overcome by proof of an implied contrary understanding. [Citations.]” (Guz v. Bechtel National, Inc., supra, 24 Cal. 4th at p. 340, fn. 10, original italics.)

We shall apply this latter rule here.

The written agreement signed by plaintiff clearly and unambiguously told him that his employment was at will and that only the board of directors, by “affirmative action,” could change the at-will nature of plaintiff’s employment. In his briefs, plaintiff makes no claim that the assurances of his supervisor constituted “affirmative action” of the board of directors. n2 Thus, plaintiff’s assertion that his supervisor gave him oral assurances of continued employment cannot create an implied contract in the face of the written acknowledgement signed by plaintiff that his employment was at will.

. . . [*39] . . .

. . . Here, as we have recounted, plaintiff’s written employment agreement clearly specified that the at-will nature of plaintiff’s employment could be changed only by “affirmative action” of the board of directors. Because plaintiff has made no showing that the representations of his supervisor, Corriveau, constituted affirmative action of the board of directors, Corriveau’s oral assurances were ineffective to modify plaintiff’s written at-will employment agreement.

We therefore conclude that plaintiff’s claim that he had an implied contract of employment, providing for termination only for good cause, is without merit. Plaintiff’s employment was at will, and he could be terminated “for any or no reason.” (Guz v. Bechtel National, Inc., supra, 24 Cal. 4th at p. 350.)

Starzynski v. Capital Public Radio (2001) 88 Cal.App.4th 33, 37-39 (bold emphasis added).

The burden shifts to Plaintiff to raise a triable issue of material fact as to whether his employment was for cause rather than at will.

In the opposing separate statement, Plaintiff makes unavailing arguments but does not cite evidence. Plaintiff’s argument that he had an implied contract not to be terminated except for good cause (see., e.g., Opp. Fact No. 9) is without merit for the reasons discussed above. Plaintiff’s argument that the FEHA statutes are an exception to the at-will doctrine (see., e.g., Opp. Fact No. 9) is inapposite. This particular cause of action is for breach of contract. A FEHA cause of action is a statutory cause of action. The two are conceptually distinct. Plaintiff fails to cite any evidence sufficient to raise a triable issue of material fact as to whether his employment as at-will as expressly stated in the employee handbooks.

Accordingly, the motion for summary adjudication as to Issue No. 5 re: the fourth cause of action is GRANTED.

Disposition

Defendants’ Ecology Auto Parts, Inc.’s and Norwalk Industries, L.P.’s motion for summary judgment is GRANTED.

Moving Party to give notice, unless waived.

IT IS SO ORDERED.

Dated: March 15, 2018 ___________________________________

Randolph M. Hammock

Judge of the Superior Court