Case Number: BC637801 Hearing Date: August 08, 2018 Dept: 37

CASE NAME: Savala v. Wells Fargo Bank, N.A., et al.

CASE NO.: BC637801

HEARING DATE: 8/8/18

DEPARTMENT: 37

CALENDAR NO.: 10

FILING DATE: 11/3/16

FSC/TRIAL DATE: 10/22/18 (FSC); 10/30/18 (Trial)

NOTICE: OK

PROCEEDING: Motion for Summary Judgment, or in the alternative, Summary Adjudication

MOVING PARTY: Defendant Wells Fargo Bank, N.A.

OPPOSING PARTY: Plaintiff Debra Savala

COURT’S TENTATIVE RULING

The court DENIES Defendant’s motion for summary judgment in its entirety. Counsel for Plaintiff Debra Savala to give notice.
STATEMENT OF THE CASE

This action arises from Plaintiff Debra Savala (“Savala”)’s allegedly wrongful termination from Wells Fargo Bank, National Association (“Wells Fargo”).[1] Savala alleges that she was forced to take a medical leave of absence on December 19, 2014 and that Defendants wrongfully filled her position in July 2015 while she was on leave and in subsequently denying her a preference in obtaining another position after her return on September 1, 2015.

Plaintiff filed the Complaint on November 3, 2016, alleging seven causes of action for: (1) discrimination on the basis of disability in violation of the Fair Employment and Housing Act (“FEHA”); (2) failure to accommodate disability in violation of the FEHA; (3) failure to engage in the interactive process in violation of the FEHA; (4) violation of the California Family Rights Act (“CFRA”); (5) failure to hire in violation of the FEHA; (6) retaliation for exercising FEHA rights and (7) wrongful termination in violation of public policy.

Defendant now moves for summary judgment, or in the alternative for summary adjudication (“MSJ”) on the following 8 issues:

Plaintiff’s first cause of action for disability discrimination fails because she failed to timely exhaust her administrative remedies with the Department of Fair Employment and Housing (“DFEH”) with respect to all allegations of disability discrimination arising during a period she was disabled and entitled to FEHA protection as such.

To the extent Plaintiff’s first cause of action for disability discrimination alleges intentional discrimination separately and apart from her second cause of action for failure to accommodate disability, it fails for the reason that she has no evidence that Wells Fargo engaged in any adverse employment action against her that was substantially motivated by her disability.

Plaintiff’s second cause of action for disability discrimination fails because she failed to timely exhaust her administrative remedies with the DFEH for such a claim within the governing limitations period.

Plaintiff’s third cause of action for failure to engage in the interactive process fails because she failed to timely exhaust her administrative remedies with the DFEH for such a claim within the governing limitations period.

Plaintiff’s fourth cause of action for violation of the California Family Rights Act (“CFRA”) fails because she failed to exhaust her administrative remedies with the DFEH for such a claim within the governing limitations period.

Plaintiff’s fifth cause of action for failure to hire (on account of disability) fails because Plaintiff lacks any admissible evidence that she was disabled at the time she applied for the positions at issue, therefore preventing her from stating a prima facie case of disability.

Plaintiff’s fourth cause of action for violation of the CFRA, fifth cause of action for failure to hire (on account of disability), sixth cause of action for retaliation in violation of FEHA and seventh cause of action for wrongful termination all fail because Plaintiff lacks any admissible evidence that Wells Fargo’s stated reasons for not selecting her for the positions she applied for as an internal applicant after she was released to work in September 2015 and subsequent termination of her employment were pretexts for unlawful discrimination or retaliation.

Plaintiff’s claim for punitive damages fails because she lacks evidence that a Wells Fargo officer, director or managing agent engaged in malicious, oppressive or fraudulent conduct toward her or ratified the same by another.

Plaintiff opposes the motion.

This matter came to hearing on July 9, 2018, at which time the court continued the hearing on this matter based on Defendant’s pending motion to compel further responses to discovery concerning communications between Plaintiff and the DFEH—which related to arguments raised by the parties. The matter now comes again to hearing.
REQUEST FOR JUDICIAL NOTICE

The court “may take judicial notice of the fact of a document’s recordation, the date the document was recorded and executed, the parties to the transaction reflected in a recorded document, and the document’s legally operative language…. From this, the court may deduce and rely upon the legal effect of the recorded document, when that effect is clear from its face.” (Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 265, disapproved on other grounds by Yvanova v. New Century Mortg. Corp. (2016) 62 Cal.4th 919, 939.)

Plaintiff requests the court take judicial notice (“RJN”) of the following documents: (1) the Department of Workers’ Compensation glossary of workers’ compensation terms for injured workers from the State of California Department of Industrial Relations website (RJN, Ex. A); (2) the Court of Appeal’s decision in Jensen v. Wells Fargo (2000) 85 Cal.App.4th 245, 263 (RJN, Ex. B); (3) the district court’s opinion in Guitron v. Wells Fargo Bank, N.A. (N.D.Cal. July 6, 2012) No. C 10-3461 CW, 2012 WL 2708517 (RJN, Ex. C) and (4) Sangeeta Doss’ LinkedIn profile (RJN, Ex. D.)

The existence and legal effect of documents 1-3 are judicially noticeable. (Evid Code, §§ 451, subd. (a); 452, subd. (c).) Document 4 is not judicially noticeable as the contents of an individual’s private social media account do not constitute judicially noticeable matter. (See Evid. Code, §§ 451, subd. (f); 452, subd. (h).)
EVIDENTIARY OBJECTIONS

Plaintiff’s Evidentiary Objections

Overruled: 1, 3, 8-9, 12-26, 28-37, 42-55, 57-77, 79-92

Sustained: 2, 4-7, 10-11, 27, 38-41, 56, 78

Declaration of Michael T. Campbell (“Campbell Decl.”)

Objection 1: Overruled. Not vague.

Objection 2: Sustained. Irrelevant. Whether Defendant undertook corrective action in 2014 is irrelevant to any claim or defense at issue.

Declaration of Amanda Balkiz (“Balkiz Decl.”)

Objection 3: Overruled. Not an improper legal conclusion. The cited legal authority does not support the proposition that the declaration testimony is inadmissible or improper.

Objections 4-7, 10-11: Sustained. Irrelevant.

Objections 8-9: Overruled. Not an improper legal conclusion or ultimate fact.

Declaration of Terilynn Bench (“Bench Decl.”)

Objection 12: Overruled. Not an improper legal conclusion. The cited legal authority does not support the proposition that the declaration testimony is inadmissible or improper.

Objection 13: Overruled. Bench establishes foundation and personal knowledge as the PMK for Wells Fargo as to Plaintiff and based on her position.

Objection 14: Overruled. Bench testifies as to Wells Fargo’s consideration of Plaintiff’s status, not Plaintiff’s disability status under the FEHA.

Objection 15: Overruled. Not a statement of ultimate fact or improper legal conclusion. Bench establishes foundation and personal knowledge as the PMK for Wells Fargo on various topics and based on her position.

Objection 16: Overruled. Relevant and not speculative.

Objection 17: Overruled. Not an improper legal conclusion or improper ultimate fact.

Declaration of Daniel Borland (“Borland Decl.”)

Objection 18: Overruled. Not an improper legal conclusion. The cited legal authority does not support the proposition that the declaration testimony is inadmissible or improper.

Objection 19: Overruled. Relevant.

Objection 20: Overruled. Not an improper legal conclusion or improper ultimate fact.

Declaration of Kristin Eaton (“Eaton Decl.”)

Objection 21: Overruled. Not an improper legal conclusion. The cited legal authority does not support the proposition that the declaration testimony is inadmissible or improper.

Objection 22: Overruled. Eaton establishes foundation for her testimony based on her position and her role as Wells Fargo’s PMK most knowledgeable on various topics. She states she was the hiring manager for the position.

Objection 23: Overruled. Not an improper legal conclusion or improper ultimate fact.

Objection 24: Overruled. Relevant. Eaton establishes foundation based on her position.

Objection 25-26: Overruled. Not improper hearsay. Eaton establishes foundation for the reasons previously stated. Does not misstate evidence or assume facts. Is not speculative.

Objection 27: Sustained. Lacks personal knowledge.

Objection 28: Overruled. Not an improper legal conclusion or improper ultimate fact.

Declaration of Derrick Flippin (“Flippin Decl.”)

Objection 29: Overruled. Not an improper legal conclusion. The cited legal authority does not support the proposition that the declaration testimony is inadmissible or improper.

Objection 30: Overruled. Relevant.

Objection 31: Overruled. Relevant. Flippin establishes personal knowledge based on his position as the recruiter.

Objection 32: Overruled. Not an improper legal conclusion or improper ultimate fact.

Declaration of Suzanne Harley (“Harley Decl.”)

Objection 33: Overruled. Not an improper legal conclusion. The cited legal authority does not support the proposition that the declaration testimony is inadmissible or improper.

Objection 34: Overruled. Harley establishes personal knowledge of Wells Fargo’s records in her declaration. (Harley Decl. ¶ 2.)

Objection 35: Overruled. Relevant.

Objection 36: Overruled. Relevant. Harley establishes personal foundation based on her testimony regarding her position and familiarity with Wells Fargo’s records.

Objection 37: Overruled. Not an improper legal conclusion or ultimate fact.

Objection 38-41: Sustained. Irrelevant.

Declaration of Tamara Littlejohn (“Littlejohn Decl.”)

Objection 42: Overruled. Not an improper legal conclusion. The cited legal authority does not support the proposition that the declaration testimony is inadmissible or improper.

Objection 43: Overruled. Relevant.

Objection 44: Overruled. Relevant. Declarant establishes personal knowledge based on her testimony regarding her position with Wells Fargo.

Objection 45: Overruled. Not an improper legal conclusion or improper ultimate fact.

Declaration of Daniel McLaughlin (“McLaughlin Decl.”)

Objection 46: Overruled. Not an improper legal conclusion. The cited legal authority does not support the proposition that the declaration testimony is inadmissible or improper.

Objections 47-52: Overruled. Relevant.

Objections 53-55: Overruled. Does not misstate evidence. Not an improper legal conclusion or statement of ultimate fact.

Objection 56: Sustained. Lack of personal knowledge.

Objection 57: Overruled. Not an improper legal conclusion or improper ultimate fact.

Declaration of Amy Poggensee (“Poggensee Decl.”)

Objection 58: Overruled. Not an improper legal conclusion. The cited legal authority does not support the proposition that the declaration testimony is inadmissible or improper.

Objection 59, 61: Overruled. Relevant.

Objection 60, 62-63: Overruled. Relevant. Poggensee establishes personal knowledge and foundation for her decisions based on her testimony regarding her position.

Objection 64: Overruled. Not an improper legal conclusion or improper ultimate fact.

Declaration of Paula Sontag (“Sontag Decl.”)

Objection 65: Overruled. Not an improper legal conclusion. The cited legal authority does not support the proposition that the declaration testimony is inadmissible or improper.

Objection 66: Overruled. Relevant.

Objection 67: Overruled. Relevant. Plaintiff’s statements are party admissions and not inadmissible hearsay.

Objection 68: Overruled. Sontag attests to her knowledge of Wells Fargo’s employment policies and her work assisting Plaintiff with her career search.

Declaration of Callie Throneburg (“Throneburg Decl.”)

Objection 69: Overruled. Not an improper legal conclusion. The cited legal authority does not support the proposition that the declaration testimony is inadmissible or improper.

Objection 70: Overruled. Relevant.

Objection 71: Overruled. Relevant. Not speculative. Not an improper legal conclusion or statement of ultimate fact. Throneburg establishes personal knowledge through the attached Exhibit I.

Objection 72: Overruled. Not an improper legal conclusion or improper ultimate fact.

Objection 73: Overruled. Relevant.

Declaration of Nia Ward (“Ward Decl.”)

Objection 74: Not an improper legal conclusion. The cited legal authority does not support the proposition that the declaration testimony is inadmissible or improper.

Objection 75: Overruled. This statement is not submitted for the truth of the assertion—that she could not accommodate Plaintiff due to the administrative job functions—but to establish that Declarant spoke to McLaughlin about this information. Not inconsistent.

Objection 76: Overruled. Not inconsistent.

Objection 77: Overruled. Ward establishes foundation based on her testimony regarding her position. Not inconsistent and does not misstate evidence.

Objection 78: Sustained. Inadmissible hearsay.

Objection 79: Overruled. Does not misstate the evidence.

Objection 80: Overruled. Not an improper ultimate fact or legal conclusion. Does not misstate the evidence and is not inconsistent.

Objection 81: Overruled. This is not submitted for the truth of the assertion, that Wells Fargo could no longer hold her position, but submitted as evidence that she made the call.

Objection 82: Overruled. Not an improper legal conclusion or improper ultimate fact.

Declaration of Ashley Whittington (“Whittington Decl.”)

Objection 83: Overruled. Not an improper legal conclusion. The cited legal authority does not support the proposition that the declaration testimony is inadmissible or improper.

Objection 84: Overruled. Relevant.

Objection 85-87: Overruled. Relevant. Whittington establishes foundation based on her testimony regarding her position as a recruiter. Does not invade the province of a jury, and this is not an improper ultimate fact.

Objection 88: Overruled. Not an improper legal conclusion or improper ultimate fact.

Plaintiff’s Deposition Testimony

Objection 89-91: Overruled. Plaintiff’s objections do not constitute grounds to find the evidence inadmissible. Not an improper request for an explanation of legal contentions. (See Rifkind v. Superior Court (1994) 22 Cal.App.4th 1255, 1256 [finding questions that asked the deponent to “1. State all facts that support the affirmative defense. 2. State the identity of each witness who has knowledge of any facts supporting the affirmative defense. 3. Identify any documents that pertain to the facts or witnesses” to be improper.].)

Objection 92: Overruled. Not vague. Not an improper legal conclusion. Does not violate Rifkind.

Supplemental Declaration of Michael T. Campbell (“Campbell Supp. Decl.”)

Overruled: Entire Declaration, 2, 5, 9-10, 12-14
Overruled in-part, Sustained in-part: 4, 7-8, 11, 15

Sustained: 1, 3, 6

Objection to the Entire Declaration: Overruled. The declaration is submitted to challenge Plaintiff’s submitted evidence regarding her communications. This responsive evidence is not improper as a matter of law. Plaintiff’s cited are older cases that rely upon the “Golden Rule” “Golden Rule” of summary judgment and adjudication that evidence not set forth in the separate statement could not be considered. However, appellate courts have recently taken a less stringent approach based on the express words of the governing statute. (Zimmerman, Rosenfeld, Gersh & Leeds LLP v. Larson (2005) 131 Cal.App.4th 1466, 1477-1478 (Zimmerman); see also San Diego Watercrafts, Inc. v. Wells Fargo Bank (2002) 102 Cal.App.4th 308, 315 [rejecting the absolute prohibition against consideration of nonreferenced evidence that formed the substance of the “Golden Rule.”].) The subject declaration and exhibits challenges evidence presented by Plaintiff; it is not a violation of her due process rights. This declaration does not constitute additional pages outside the scope of California Rules of Court, rule 3.1113(d) because it is evidence, not additional pages of briefing and argument that the court will consider in support of the motion. (See Cal. Rules of Court, rule 3.1113(b).)

Objections 1, 3, 6: Sustained. Argumentative.

Objections 2, 5, 9: Overruled. Party admission and not inadmissible hearsay. Does not misstate testimony. Relevant. Does not violate due process rights. (See Zimmerman, 131 Cal.App.4th at pp. 1477-1478.)

Objection 4: Overruled in-part, Sustained in-part. The objection is sustained as to the last sentence as argumentative. The objection is otherwise overruled as a party admission and not inadmissible hearsay.

Objection 7: Overruled in-part, Sustained in-part. The objection is sustained to the phrase “which she clearly had in her possession at the time” as argumentative. The objection is otherwise overruled for the reasons stated above.

Objection 8: Overruled in-part, Sustained in-part. The objection is sustained to the last sentence as argumentative. The objection is otherwise overruled. The testimony states that the relevant statements and documents were produced prior to mediation, not during mediation. This does not violate the mediation privilege. (See Evid. Code, § 1119.)

Objections 10, 12-14: Overruled. Not argumentative. Does not violate Plaintiff’s due process rights. Relevant. Does not misstate testimony. This declaration does not constitute additional briefing.

Objection 11: Overruled in-part, Sustained in-part. Sustained as to the sentence: “This plainly reflects that Plaintiff had her counsel by July 10, 2016, which is only about a month after she made her initial online inquiry to the DFEH,” as improper argument. The objection is otherwise overruled.

Objection 15: Overruled in-part, Sustained in-part. Sustained as to the third and fourth sentences as argumentative. The objection is otherwise overruled for the same reasons as stated above.

Second Supplemental Declaration of Michael T. Campbell (“Campbell 2nd Supp. Decl.”)

Overruled: 4, 6, 8, 11, 14, 17, 21-23, 25, 28-29, 31, 34-38, 41
Overruled in-part, Sustained in-part: 2-3, 5, 7, 10, 12, 19

Sustained: 1, 9, 13, 15-16, 18, 20, 24, 26-27, 30, 32-33, 39-40

Objection 1: Sustained. Argumentative.

Objection 2: Overruled in-part, Sustained in-part. Sustained as to the phrase: “as well as draft declarations that counsel had prepared and sent the DFEH to review and approve.” Argumentative, assumes facts. The objection is otherwise overruled.

Objection 3: Overruled in-part, sustained in-part. Sustained as to the last sentence as argumentative. The objection is otherwise overruled. The evidence responds to evidence including declarations Plaintiff first produced in connection with her opposition. This does not violate Plaintiff’s due process rights.

Objection 4: Overruled. Relevant. Does not misstate testimony or evidence.

Objections 5, 7, 10: Overruled in-part, sustained in-part. Sustained as to the last sentence as argumentative. The objection is otherwise overruled. The evidence responds to evidence including declarations Plaintiff first produced in connection with her opposition. This does not violate Plaintiff’s due process rights. Plaintiff has indicated the truth of the assertion (that the RFP requested what is alleged) through its conduct. This evidence does not constitute inadmissible hearsay. (Evid. Code, § 1221.)

Objection 6: Overruled. Plaintiff’s statement is a party admission and not inadmissible hearsay.

Objection 8, 11: Overruled. Relevant. Not argumentative. Does not misstate testimony. Party admission and not inadmissible hearsay.

Objection 9: Sustained. Argumentative.

Objection 12: Overruled in-part, Sustained in-part. Sustained as to the phrases: “Without explanation” and “that was plainly responsive to earlier discovery but had been withheld from production for no valid reason” as argumentative. The objection is otherwise overruled.

Objections 13, 15-16, 18, 20: Sustained. Argumentative.

Objection 14: Overruled. Not argumentative. Does not misstate evidence.

Objection 17: Overruled. Not argumentative. Relevant.

Objection 19: Overruled in-part, Sustained in-part. Overruled as to the statement “Plaintiff did not produce any phone bills reflecting her alleged call to the DFEH on June 30, 2016 in advance of the second day of her deposition” as not argumentative and relevant. The objection is otherwise sustained.

Objections 21-23: Overruled. Relevant. Not argumentative. Does not misstate evidence. Plaintiff’s testimony is a party admission and not inadmissible hearsay.

Objection 24: Sustained. Argumentative.

Objection 25: Overruled. Not argumentative. Relevant.

Objection 26: Sustained. Irrelevant.

Objection 27, 30, 32-33: Sustained. Argumentative.

Objection 28-29, 31, 34-38, 41: Overruled. Not argumentative. Does not misstate the testimony or assume facts. Does not lack foundation. Relevant. The cited legal authority does not stand for the proposition that a declarant’s declaration statement cannot be impeached by other submitted evidence on summary judgment.

Objections 39-40: Sustained. Argumentative. Irrelevant.

Defendant’s Evidentiary Objections

Overruled: 1, 3-8, 11-14
Overruled in-part, Sustained in-part: 2, 9-10, 16-17, 19

Sustained: 15, 18, 20

Declaration of Gina Browne (“Browne Decl.”)

Objection 1: Overruled. Relevant

Declaration of Debra Savala (“Savala Decl.”)

Objection 2: Overruled in-part, Sustained in-part. Sustained to the term “forced out” as argumentative. The objection is otherwise overruled as relevant.

Objections 3-8: Overruled. Does not contradict prior deposition testimony.

Objection 9: Overruled in-part, Sustained in-part. Sustained to the second and third sentences as a violation of the secondary evidence rule. The objection is otherwise overruled. Plaintiff establishes foundation for what she did. This does not contradict her sworn testimony.

Objection 10: Overruled in-part, Sustained in-part. Sustained as to the second and third sentences as inadmissible hearsay. The objection is otherwise overruled as it does not contradict deposition testimony.

Objection 11: Overruled. Business Record exception to hearsay. (Evid. Code, § 1271.) Plaintiff attests that the phone number is hers even though the account is in her daughter’s name. This is sufficient to establish her as a qualified witness.

Objection 12, 14: Overruled. Relevant.

Objection 13: Overruled. Does not contradict deposition testimony.

Declaration of Tina Walker (“Walker Decl.”)

Objection 15: Sustained. Improper legal opinion and argument.

Objection 16: Overruled in-part, Sustained in-part. Sustained as to the final sentence as an improper legal conclusion. The objection is otherwise overruled. Exhibit 1 is a government record. (Evid. Code, § 1280.)

Objection 17: Overruled in-part, Sustained in-part. Sustained as to the final sentence as an improper legal conclusion. The objection is otherwise overruled.

Declaration of Tilak Gupta (“Gupta Decl.”)

Objection 18: Sustained. Inadmissible hearsay.

Objection 19: Overruled in-part, sustained in-part. Sustained as to the second, third and fourth sentences as a violation of the secondary evidence rule. The objection is otherwise overruled. The letter is a record by a public employee. (Evid. Code, § 1280.)

Plaintiff’s Request for Judicial Notice

Objection 20: Sustained. The contents of this document are not subject to judicial notice. Inadmissible hearsay.

Supplemental Declaration of Debra Savala (“Savala Supp. Decl.”)

Overruled: 1
Sustained:

Objection 1: Overruled. Does not contradict prior testimony. Declarant states she was never asked about phone calls, not online communications. Plaintiff’s July 24, 2017 errata to her deposition mentions phone screen conversations. (Supplemental Declaration of Gina Browne (“Browne Supp. Decl.”) Ex. B.)Defendant objects that Plaintiff’s declaration statement is contradicted by her discovery responses. Defendants, however, do not present any legal authority that supports the proposition that a contradiction with discovery responses is sufficient to render declaration testimony inadmissible, rather than sufficient to serve as a basis for impeachment. The cited case does not support this argument.
FACTUAL BACKGROUND

The following facts are undisputed and provide context for the subsequent discussion about the merits of the parties’ respective contentions in connection with the motion for summary judgment.

Plaintiff worked as a Staffing Specialist in the recruiting department beginning in August 2005. (Defendant’s Separate Statement (“DSS”) ¶ 2.) She had previously worked for Wells Fargo as an administrative assistant since 1997. (DSS ¶ 1.)

On December 4, 2014, Plaintiff called Wells Fargo’s Workers’ Compensation Department and reported that keyboarding caused her pain in her fingers, hands and wrists. (DSS ¶ 19.) On December 5, 2014, Plaintiff provided a doctor’s note requiring she take a 15-minute no-computer-use break every hour. (DSS ¶ 20.) Defendant’s workers’ compensation consultant Dan McLaughlin contacted Plaintiff’s temporary manager, Balkiz, concerning the 15-minute no-computer-use restriction. (DSS ¶ 21.) Balkiz accommodated Plaintiff’s restriction by having her intermittently perform non-computer based administrative tasks. (DSS ¶ 22.) On December 19, 2014, Plaintiff provided a new note stating she could not use a keyboard or mouse at all and that her next appointment was December 30, 2014. (DSS ¶ 24.) McLaughlin contacted Plaintiff’s manager Nia Ward (“Ward”) on December 19, 2014 regarding the no keyboarding restriction. (DSS ¶ 24.) Ward stated she would be unable to accommodate such a restriction in the job. (DSS ¶ 25.) McLaughlin contacted Plaintiff to discuss the no keyboarding restriction on December 22, 2014, and Plaintiff confirmed that 90% of her job involved keyboarding. (DSS ¶ 26.)

Wells Fargo placed Plaintiff on a leave of absence on or around December 22, 2014. (DSS ¶ 28.) Plaintiff did not know at the time how she could perform her Staffing Specialist job without keyboarding and did not suggest an accommodation to anyone at Wells Fargo that would allow her to continue working rather than take a leave. (DSS ¶ 30.) Plaintiff remained on leave until September 1, 2015. (DSS ¶ 31.) During her leave, Plaintiff provided Defendant with numerous doctor’s notes that kept the “no keyboarding” restrictions in place. (DSS ¶ 32.) Plaintiff did not suggest to Wells Fargo any potential accommodations to enable her to do her job without keyboarding during her leave. (DSS ¶ 33.) Plaintiff’s CFRA/FMLA job protection expired on February 19, 2015. (DSS ¶ 34.)

On May 15, 2015, Ward informed Plaintiff that Wells Fargo would be posting and filing her Staffing Specialist position. (DSS ¶ 37; Plaintiff’s Responsive Statement (“PRS”) ¶ 37.) The position was filled on June 22, 2015 by another team member. (DSS ¶ 38.) Plaintiff remained on leave with no definitive return date after her position was filled. (DSS ¶ 39; PRS ¶ 39.) On August 19, 2015, Plaintiff informed McLaughlin that she was released to return to work without any restrictions, effective September 1, 2015. (DSS ¶ 43.) McLaughlin contacted Plaintiff’s former manager, Ward, who informed him that she had no Staffing Specialist or similar positions available on her team. (DSS ¶ 44.)

Wells Fargo offers two types of Job Search Leave for eligible team members returning from medical leave: Accommodations Management-assisted Job Search Leave and Career Connection-assisted Job Search Leave. (DSS ¶ 40.) Accommodations Management-assisted Job Search Leave is offered to a team member who is released to return to work with medical restrictions and the team member’s prior position is no longer available, or if the team member has a disability that permanently renders her unable to perform the essential functions of the previous job. (DSS ¶ 41.) Such employees are assisted by the Accommodations Management Department in searching for an open position and reassigning her to that position, and the disabled employee gets preference over other qualified, but non-disabled applicants. (DSS ¶ 41.) Career Connection-assisted Job Search Leave is provided to team members who have been displaced as part of a reduction in force or who are relocating residence and wish to search for other Wells Fargo jobs in proximity to the new residence, or for other personal reasons. (DSS ¶ 42.) If a team member is released to return to work from a medical leave without listed work restrictions or requested accommodations, but his or her prior position is no longer available, then such team member receives assistance through Career Connection-assisted Job Search Leave in the same manner as employees whose jobs are eliminated in a reduction in force. (Ibid.) These employees receive assistance in identifying openings, but do not receive a preference in the selection process. (Ibid.)

After Plaintiff returned, she was placed on a Career Connection-assisted leave without preferential reassignment rights. (DSS ¶ 46; PRS ¶ 46.) During her job search leave, Plaintiff applied to twelve Administrative Assistant and Staffing Specialist positions. (DSS ¶ 56; PRS ¶ 56.) Plaintiff was not selected for any of the twelve positions and her employment ended or was terminated effective February 12, 2016, when her job search leave expired. (DSS ¶ 76; PRS ¶ 76.)
DISCUSSION
I. Legal Standard

The law of summary judgment provides courts “a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar).) In reviewing a motion for summary judgment, courts employ a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent’s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.” (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294 (Hinesley).) “A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty,” and “[a] motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Code Civ. Proc., § 437c, subd. (f)(1).)

A moving defendant bears the initial burden of production to show that one or more elements of the cause of action cannot be established or that there is a complete defense to the cause of action, at which point the burden shifts to the plaintiff to make a prima facie showing of the existence of a triable issue. (Code Civ. Proc., § 437c, subd. (p)(2).) The opposing party may not rely on the mere allegations or denials of the pleadings, but instead must set forth the specific facts showing that a triable issue exists as to that cause of action or a defense thereto. (Aguilar, supra, at p. 849.) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389; see also Hinesley, supra, 135 Cal.App.4th at p. 294 [The court must “view the evidence in the light most favorable to the opposing party and accept all inferences reasonably drawn therefrom.”].) A motion for summary judgment must be denied where the moving party’s evidence does not prove all material facts, even in the absence of any opposition (Leyva v. Sup. Ct. (1985) 164 Cal.App.3d 462, 475) or where the opposition is weak (Salasguevara v. Wyeth Labs., Inc. (1990) 222 Cal.App.3d 379, 384, 387).

“In analyzing an employee’s claim for unlawful discrimination under the FEHA, California courts have adopted the three-stage, burden-shifting test the United States Supreme Court established in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 [Citations.]” (Swanson v. Morongo Unified School Dist. (2014) 232 Cal.App.4th 954, 964 (Swanson).) “This so-called McDonnell Douglas test reflects the principle that direct evidence of intentional discrimination is rare, and that such claims must usually be proved circumstantially. Thus, by successive steps of increasingly narrow focus, the test allows discrimination to be inferred from facts that create a reasonable likelihood of bias and are not satisfactorily explained.” (Swanson, 232 Cal.App.4th at p. 964.)

California Courts have recognized that the McDonnell Douglas test was originally developed for use at trial, not in summary judgment proceedings. (Id. at p. 965.) “California’s summary judgment law places the initial burden on a moving party defendant to either negate an element of the plaintiff’s claim or establish a complete defense to the claim.” (Id. at pp. 965-966.) “The burdens and order of proof therefore shift under the McDonnell Douglas test when an employer defendant seeks summary judgment. [Citations.] An employer defendant may meet its initial burden on summary judgment, and require the employee plaintiff to present evidence establishing a triable issue of material fact, by presenting evidence that either negates an element of the employee’s prima facie case, or establishes a legitimate nondiscriminatory reason for taking the adverse employment action against the employee.” (Id. at p. 966.) “[T]o avoid summary judgment [on the second of these two grounds], an employee claiming discrimination must offer substantial evidence that the employer’s stated nondiscriminatory reason for the adverse action was untrue or pretextual, or evidence the employer acted with a discriminatory animus, or a combination of the two, such that a reasonable trier of fact could conclude the employer engaged in intentional discrimination.” (Ibid.) [2]
II. Analysis
A. Issues 1, 3, 4 and 5: Exhaustion of Administrative Remedies with the DFEH
1. Statute of Limitations

Defendant contends that Plaintiff’s first through fourth causes of action are barred by the applicable statute of limitations. A plaintiff asserting a FEHA claim must file an administrative complaint with the California Department of Fair Employment and Housing (“DFEH”) within one year from the date the alleged unlawful practice or refusal to cooperate with the FEHA occurred. (Gov. Code, § 12960.) Acts occurring outside the one-year time frame cannot serve as the basis for liability unless an exception to the one-year limitations period applies. (Cucuzza v. City of Santa Clara (2002) 104 Cal.App.4th 1031, 1040.)

“The FEHA itself requires that we interpret its terms liberally in order to accomplish the stated legislative purpose. [Citation.] In order to carry out the purpose of the FEHA to safeguard the employee’s right to hold employment without experiencing discrimination, the limitations period set out in the FEHA should be interpreted so as to promote the resolution of potentially meritorious claims on the merits.” (Romano v. Rockwell Int’l, Inc. (1996) 14 Cal.4th 479, 493-494.) “The exhaustion of an administrative remedy is a procedural prerequisite to an action at law, and the failure to exhaust it does not divest a trial court of subject matter jurisdiction.” (Holland v. Union Pacific Railroad Co. (2007) 154 Cal.App.4th 940, 946 (Holland), emphasis omitted.) “As a result, courts can resort to equitable exceptions to this condition precedent.” (Ibid.) One exception applies where complainants reasonably are misled through no fault of their own as a result of inaccurate information from the DFEH. (Ibid.)

Defendant contends that all of Plaintiff’s FEHA claims, except her claims regarding Defendant’s failure to hire her during her period of job search leave and subsequent termination, are time-barred because they accrued outside of the one-year period covered by her DFEH discrimination complaint. (Mot. 18.) Defendant argues that the statute of limitations on Plaintiffs claims began to run as of September 1, 2015, when Wells Fargo told her that the only accommodation she would receive would be Career Connection Job Search Leave. (Ibid.)
2. The Continuing Violations Doctrine

Under California law, “an employer’s series of unlawful actions in a case of failure to reasonably accommodate an employee’s disability, or disability harassment, should be viewed as a single, actionable course of conduct if (1) the actions are sufficiently similar in kind; (2) they occur with sufficient frequency; and (3) they have not acquired a degree of ‘permanence’ so that employees are on notice that further efforts at informal conciliation with the employer to obtain accommodation or end harassment would be futile.” (Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, 802 (Richards).) In Richards, the Supreme Court recognized that courts tend toward a broader view of the doctrine when the cause of action involves ongoing harassment or ongoing failure to accommodate disability. (Richards, supra, 26 Cal.4th at p. 817.) The Court held that an employer’s failure over time to reasonably accommodate a disabled employee should be viewed as a single course of conduct. (Id. at pp. 821-822 [“reasonable accommodation is often an ongoing process rather than a single action”].)

Defendant argues that Plaintiff cannot establish the first and third elements and cannot claim that its conduct constituted a continuing violation of the FEHA. First, Defendant contends that there is no evidence of a pattern of similar events. (Mot. 19.) Defendant specifically argues that its placement of Plaintiff on medical leave constituted a separate act from its subsequent decision to offer her Career Connection-assisted Job Search Leave on her return, which did not include a selection preference.

In Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 263 (Jensen), the Court of Appeal recognized that “holding a job open for a disabled employee who needs time to recuperate or heal is in itself a form of reasonable accommodation and may be all that is required where it appears likely that the employee will be able to return to an existing position at some time in the foreseeable future.” (Ibid.) In contrast, the court noted that offering an employee the right to bid on other jobs was a right the employee already had and does not represent a reasonable accommodation. (Id. at p. 262.)

Here, it is undisputed that Plaintiff went on medical leave on approximately December 22, 2014 and stayed on leave until September 1, 2015, at which time she was offered Career Connection-assisted Job Search Leave that did not give her preference in the selection process. (DSS ¶¶ 26, 28, 43, 46; PRS ¶ 46.) The parties’ submitted evidence demonstrates that Defendant first offered Plaintiff medical leave with her job held open, but that it subsequently filled her job on June 22, 2015 while she was out on leave. While Defendant argues that the medical leave and the Career Connection-assisted Job Search Leave constituted two separate accommodations, a triable issue of fact exists as to whether the Job Search Leave constituted the same or a continuing course of conduct of the accommodation she received through her medical leave. (See Guitron v. Wells Fargo Bank, N.A. (N.D.Cal. July 6, 2012) 2012 U.S.Dist. LEXIS 93883, at pp. 86-87 (Guitron) [“Holding a job open for [an employee plaintiff] or identifying a replacement position upon her return would have been a reasonable accommodation . . . [but] “[t]o find that an employer no longer has an obligation to follow through on such an accommodation once an employee has recuperated enough to return to work would render it meaningless.”].) Accordingly, Defendant’s argument fails.

Defendant cites Arteaga v. Brink’s Inc. (2008) 163 Cal.App.,4th 327, 349 (Arteaga) for the proposition that summary judgment should be granted on a disability discrimination claim where a plaintiff is released to work without restrictions and is thus not disabled. (Mot. 20.) Arteaga involved circumstances where the Court of Appeal determined that the plaintiff did not have a physical disability at any time while with the employer defendant. (Id. at p. 349.) Arteaga does not stand for the proposition that a plaintiff who takes medical leave based on a disability but is subsequently released to work without restrictions cannot assert a cause of action for disability discrimination, as Defendant contends. (See Mot. 20.) The court is not aware of any such legal authority, and Arteaga is inapposite to the circumstances at hand. Accordingly, Defendant’s argument regarding the similarity element of the continuing violation test fails. [3]

Second, Defendant contends that Plaintiff’ fails to meet the third element of the continuing violation test because her claims acquired a degree of “permanence” as of September 1, 2015, when she was offered Career Connection-assisted Job Search Leave that did not give her preference in the selection process. (Mot. 21.) Defendant specifically argues that Plaintiff knew and understood how to seek an accommodation and knew and should have understood that the Career Connection-assisted Job Search Leave meant that Wells Fargo was only going to give her job search leave with no preference over other candidates. (Mot. 21; Reply 4.) The court disagrees that Plaintiff’s claims acquired “permanence” upon her return, as a matter of law.

In Richards, the Supreme Court held that “ ‘permanence’ in the context of an ongoing process of accommodation of disability, or ongoing disability harassment, should properly be understood to mean the following: that an employer’s statements and actions make clear to a reasonable employee that any further efforts at informal conciliation to obtain reasonable accommodation or end harassment will be futile.” (Richards, supra, 26 Cal.4th at p. 823.)

Viewing the evidence in the light most favorable to Plaintiff, a triable issue of fact exists as to whether Defendant’s actions in assisting Plaintiff through the Career Connection-assisted Job Search Leave made it clear to Plaintiff on September 1, 2015 that any further efforts at informal conciliation—i.e. by participating with the assisted job search to seek different employment with Wells Fargo—would not have led to her actually obtaining a different position with Defendant and would have been futile. (See Richards, 26 Cal.4th at pp. 820-821 [“[W]e do not believe the FEHA statute of limitations should be interpreted to give a disabled employee engaged in the process of seeking reasonable workplace accommodation or ending disability harassment two unappealing choices: on the one hand resigning and bringing legal action soon after the first signs that her rights have been violated, or on the other hand attempting to persist in the informal accommodation process and risk forfeiture of the right to bring such an action altogether. Nor, as we have recognized, is the third choice–retaining employment while bringing formal legal action against the employer–a viable option for many employees.”].) Accordingly, the court finds that a triable fact exists that Plaintiff’s claims did not acquire a degree of “permanence” prior to the date of her discharge or termination on February 12, 2016.

In sum, the court finds that a triable issue of fact exists as to whether Defendant’s conduct constituted a continuing violation, such that the statute of limitations did not begin to run until Plaintiff’s termination or discharge on February 12, 2016. Plaintiff filed an administrative complaint with the DFEH on November 3, 2016, and she obtained an immediate right to sue. (DSS ¶ 54.) As Plaintiff’s administrative complaint was filed within one year of February 12, 2016, a triable issue of material fact exists as to whether Plaintiff timely exhausted her administrative remedies. The court therefore DENIES summary adjudication on Issues 1, 3, 4 and 5 and the second and third causes of action.

For the sake of completeness, the court will address the parties’ arguments as to whether a triable issue of fact exists even if the court were to assume for the sake of argument that the statute of limitations began to run on September 1, 2015.
3. Sufficiency of Pre-Complaint Inquiry

Pursuant to Government Code, section 12960, subdivision (d), a plaintiff must file an administrative complaint with the DFEH within one year from the date on which the alleged unlawful practice or refusal to cooperate occurred. (Gov. Code, § 12960, subd. (d).) The complaint must: “state the name and address of the person, employer, labor organization, or employment agency alleged to have committed the unlawful practice complained of, and that . . . set[s] forth the particulars thereof and contain other information as may be required by the department.” (Gov. Code, § 12960, subd. (b).) Administrative charges are to be construed liberally because they are often drafted by claimants without the assistance of counsel and are also to be construed in light of what might be uncovered by a reasonable investigation. (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 266-268 (Nazir).)

It is undisputed that Plaintiff submitted a pre-complaint inquiry to the DFEH on June 9, 2016. (Defendant’s Separate Statement (“DSS”) ¶ 50; Def. Evid. Ex. B-60.) Plaintiff contends that this pre-complaint inquiry can satisfy the procedural requirement for purposes of the statute of limitations and the FEHA. (Opp. 11, citing Nazir, supra, 178 Cal.App.4th at pp. 266-267.) In Nazir, the Court of Appeal recognized that a pre-complaint inquiry can satisfy the administrative exhaustion requirement if the material submitted adequately specifies the nature of the employee’s claims and constitutes a request for the DFEH to act. (178 Cal.App.4th at pp. 268-269.)

Defendant disagrees and cites cases including Cole v. Antelope Valley Union High School District (1996) 47 Cal.App.4th 1505, 1515-1516 (Cole) to argue that Plaintiff’s pre-complaint inquiry was insufficient to exhaust her administrative remedies as a matter of law. (Mot. 19.) Cole, however, does not stand for the asserted proposition. As the Nazir Court explained, Cole was an action against a school district and three administration officials, two of whom were not named in either the caption or the body of the plaintiff’s initial and amended charges filed with the DFEH while the third was named in the body, but not the caption, of both charges. (Nazir, supra, 178 Cal.App.4th at p. 268.) The Court of Appeal affirmed the grant of summary judgment as to the two officials who were not named in the initial charges, but reversed as to the third on the grounds that “[i]f there had been an administrative investigation, Mr. Rossi would have been put on notice of the charges, and would have had an opportunity to participate.” (Ibid.) The Nazir Court thus found that Cole supported the proposition that “what is submitted to the DFEH must not only be construed liberally in favor of plaintiff, it must be construed in light of what might be uncovered by a reasonable investigation.” (Ibid.) Cole thus does not demonstrate that a pre-complaint inquiry is, as a matter of law, insufficient to constitute a “complaint” under section 12960.

Defendant also cites Holland for the proposition that a pre-complaint questionnaire only equitably exhausted administrative remedies because the plaintiff was affirmatively told by the DFEH that the questionnaire would initiate the process within the applicable statute of limitations. (Mot. 19, citing Holland, supra, 154 Cal.App.4th at p. 946.) The Holland Court did not specifically consider the question of whether a pre-complaint questionnaire could constitute a complaint for purposes of Government Code, section 12960 or identify whether the information on the Holland plaintiff’s pre-complaint questionnaire met the requirements identified in Nazir and adequately specified the nature of the plaintiff’s claims and constituted a request for the DFEH to act. Accordingly, Holland is inapposite to the question at hand—i.e., whether a pre-complaint questionnaire can constitute a “complaint” for purposes of section 12960 under the terms identified in Nazir. [4]

In sum, Defendant fails to distinguish Nazir or to demonstrate that a pre-complaint inquiry cannot constitute a “complaint” with the DFEH. The court thus finds that the June 9, 2016 pre-complaint inquiry would have been sufficient to meet the exhaustion requirements if it adequately specified the nature of Plaintiff’s claims and properly constituted a request for the DFEH to act. (See Nazir, 178 Cal.App.4th at pp. 268-269.)

Defendant next contends that the June 9, 2016 pre-complaint inquiry did not meet the requirements of a charge of discrimination because it makes no mention of Wells Fargo or its alleged failure to accommodate disability. (Mot. 18-19, Reply 5-6.) Defendant points to the DFEH’s June 9, 2016 “Acknowledgement of Inquiry” letter as evidence that Plaintiff did not name Wells Fargo in her inquiry. (Mot. 19, citing Def. Evid. Ex. B-60.)

Plaintiff presents testimony by Tina Walker (“Walker”), the assistant deputy director of Employment at the DFEH, who attests that the DFEH case management system captured Wells Fargo’s information internally when it received Plaintiff’s June 9, 2016 inquiry. (Walker Decl. ¶ 3.) This evidence is sufficient to demonstrate the existence of a triable issue of fact as to whether Plaintiff’s June 9, 2016 pre-complaint inquiry properly named Wells Fargo as her employer. (See Cole, supra, 47 Cal.App.4th at pp. 1510-1511, 1515 [granting summary judgment in favor of two individual defendants based on the plaintiff employee’s failure to name such defendants in the DFEH charge, but reversing summary judgment as to the individual defendant that was named and reversing summary judgment to the company on other grounds].)

The second question is whether the pre-complaint inquiry properly constituted a request for the DFEH to act. (See Nazir, supra, 178 Cal.App.4th at pp. 268-269.) Plaintiff’s pre-complaint inquiry listed the basis of her inquiry as “Disability [physical or mental]” and listed the harm as “Discrimination Terminated.” (Def. Evid. Ex. B-60.) The inquiry further lists as additional facts:

I was off due to a work related injury. Upon a release back to duty per my physician I returned to resume full duty. I was informed that my position had been filled and I was placed on a 90 day job search which was extended until 2-2016. I was directed to search apply and interview for open positions within the company. I complied and interviewed for numerous positions, for which I was more than qualified. Others were hired to fill positionsI. was not hired for any of the positions and ultimately terminated. Felt I was not only discriminated but also retaliation after returning .

(Def. Evid. Ex. B-60.) Plaintiff subsequently retained counsel who contacted the DFEH in or about August 2015, asking about the investigation and who requested all files the DFEH had regarding Plaintiff. (DSS ¶ 52; PRS ¶ 52.)

Viewing the evidence in the light most favorable to Plaintiff, the court finds that a triable issue exists as to whether Plaintiff’s pre-complaint inquiry and subsequent communications constituted a request for the DFEH to act. The court therefore finds that a triable issue of fact exists as to whether Plaintiff exhausted her administrative remedies by filing a pre-compliant inquiry on June 9, 2016. This would provide alternate grounds to deny summary adjudication on Issues 1, 3, 4 and 5, even if the court were to find that the statute of limitations began to run on September 1, 2015—which the court does not, as stated above. [5]
B. Issues 2 and 6: Adverse Employment Action

Issue 2 states that to the extent Plaintiff’s first cause of action for disability discrimination alleges intentional discrimination separate and apart from her second cause of action for failure to accommodate disability, it fails for the separate reason that she has no evidence that Wells Fargo engaged in any adverse employment action against her that was substantially motivated by her disability. Issue 6 similarly states that the fifth cause of action for failure to hire on account of disability fails because Plaintiff lacks any admissible evidence that she was disabled at the time she applied for the positions at issues, preventing her from stating a prima facie case of disability discrimination.

Defendant cites Avila and Arteaga to contend that Plaintiff cannot assert claims for disability discrimination and failure to accommodate because she was released to return to work without restrictions effective September 1, 2015 and she was not disabled. (Mot. 22.)

As stated above, Avila and Arteaga do not support Defendant’s arguments regarding whether an employee who returns from disability leave without restrictions may assert a claim for disability discrimination based on an employer’s failure to hold her job open or to offer her a hiring preference. A triable issue of fact exists as to whether Defendant’s conduct constituted the same or a continuing violation of its conduct in placing Plaintiff on medical leave as of December 22, 2014. (See Jensen, supra, 85 Cal.App.4th at pp. 262-263; see also Guitron, supra, 2012 U.S.Dist. LEXIS 93883, at pp. 86-87.) Accordingly, Defendant’s argument fails.

For these reasons, the court DENIES summary adjudication on Issue 2 and the first cause of action.
C. Issue 7: Wells Fargo’s Stated Reasons Regarding Non-Selection for Positions While on Job Search Leave

Defendant contends that the fourth cause of action for violation of the CFRA, the fifth cause of action for failure to hire, the sixth cause of action for retaliation and the seventh cause of action for wrongful termination all fail because Plaintiff lacks any admissible evidence that Wells Fargo’s stated reasons for not selecting her for the positions she applied for as an internal applicant after she was released to work in September 2015, and the subsequent termination of her employment were pretexts for unlawful discrimination or retaliation.

Plaintiff’s fourth, fifth, sixth and seventh causes of action are based on the same alleged conduct as the first cause of action for disability discrimination and the second cause of action for failure to accommodate disability, namely Defendant’s alleged failure to hold her job open for her or to give her a hiring preference upon her return and Defendant’s subsequent termination or discharge of her employment on February 12, 2016 upon the expiration of her job search leave.

A party may move for summary adjudication on “one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty . . . .” (Code Civ. Proc., § 437c, subd. (f)(1).) “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Ibid.) As the court has denied summary adjudication on Issues 1 through 6 and found that a triable issue of fact exists as to whether Defendant’s conduct constituted the same or a continuing course of unlawful conduct under the FEHA, a grant of summary adjudication on Issue 7 would not completely dispose of a cause of action, an affirmative defense, a claim for damages or an issue of duty.

Thus, the court DENIES summary adjudication on Issue 7 and the remaining causes of action. The court does not make any determination of this Issue on its merits.

D. Issue 8: Punitive Damages

A plaintiff may seek punitive damages “[i]n an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice….” (Civ. Code, § 3294, subd. (a).) “ ‘Malice’ means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” (Civ. Code, § 3294 subd. (c)(1).) “ ‘Oppression’ means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” (Civ. Code, § 3294 subd. (c)(2).) “ ‘Fraud’ means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.” (Civ. Code, § 3294, subd. (c)(3).)

Pursuant to Civil Code, section 3294, subdivision (b):

An employer shall not be liable for damages pursuant to subdivision (a), based upon acts of an employee of the employer, unless the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice. With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation.

(Civ. Code, § 3294, subd. (b).)

Defendant contends that Plaintiff has no evidence that anyone at Wells Fargo, let alone a managing agent, engaged in an act of “oppression, fraud, or malice” toward her. (Mot. 24.) Defendant further argues that it terminated her employment because she did not secure a position during 164 days of Job Search Leave after she was released to return to work without restrictions. (Ibid.)

In Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 713-714 (Roby), the Supreme Court recognized that a corporation’s act of adopting a flawed policy that did not reasonably accommodate employees with disabilities or medical conditions and its discharge of the plaintiff in a simple application of the policy could constitute “oppression” or “malice” and justify an award of punitive damages on a discrimination claim. Defendant argues that Roby does not stand for the proposition that an employer’s enforcement of an unlawful policy ipso facto supports punitive damages. (Reply 11.) The court disagrees.

On a motion for summary judgment, the moving party bears the burden to demonstrate that there is no merit to a claim of damages. (Code Civ. Proc., § 437c, subd. (f)(1).) As the moving party, Defendant bears the burden to demonstrate that a corporation’s application of a flawed policy that does not reasonably accommodate employees with disabilities or medical conditions cannot alone support punitive damages in the circumstances at hand or as a matter of law. (See Roby, 47 Cal.4th at pp. 713-714.) Here, Defendant has not met its initial burden.

The court therefore DENIES summary adjudication on Issue 8 and the request for punitive damages.
III. Conclusion

For these reasons, the court DENIES the motion in its entirety.

[1] In the Complaint, Plaintiff additionally named Wells Fargo Bank, Ltd. and Wells Fargo & Company as Defendants. These Defendants were dismissed without prejudice on December 1, 2015.

[2] In Guz v. Bechtel Nat’l Inc. (2000) 24 Cal.4th 317, 355, the Supreme Court recognized that the law is not settled regarding the parties’ burdens, and the Court expressly declined to resolve the “prima facie burden” issue. (Id. at pp. 356-357.) However, as the Guz Court recognized, “California’s summary judgment law places the initial burden on a moving party defendant to either negate an element of the plaintiff’s claim or establish a complete defense to the claim.” (E.g., Guz, supra, 24 Cal.4th at p. 356; see also Swanson, supra, 232 Cal.App.4th at pp. 965-966; Sandell v. Taylor-Listug, Inc. (2010) 188 Cal.App.4th 297, 309 [“Although the burden of proof in a discrimination action claiming an unjustifiable termination ultimately rests with the plaintiff, in the case of a motion for summary judgment or summary issue adjudication, the burden rests with the moving party to negate the plaintiff’s right to prevail on a particular issue. In other words, the burden is reversed in the case of a summary issue adjudication or summary judgment motion.”], internal quotations, brackets, and ellipses omitted.) Accordingly, the court finds it is more appropriate to reverse the McDonnell Douglas burden. However, even if the court were to directly apply the McDonnell Douglas standard, the ultimate results would be the same, based on the record presented by the parties.

[3] Defendant also cites Avila v. Continental Airlines, Inc. (2008) 165 Cal.App.4th 1237 (Avila) in support of this argument. (Mot. 22.) Avila involved circumstances in which the Court held that the plaintiff did not timely inform his employer that his absence from work was due to a qualifying disability. (Id. at p. 1252-1253, cited in Mot. 22.) As with Arteaga, Avila is inapposite to the question of whether an employee loses standing to assert disability discrimination claims if she returns to work without restrictions, where her position was not kept open and she was not given a selection preference.

[4] Defendant additionally cites Brahmana v. Lembo (N.D.Cal. March 17, 2010) 2010 U.S.Dist. LEXIS 24784, at p. 3 (Brahmana) for the proposition that a plaintiff’s mere completion of an unverified EEOC intake questionnaire did not exhaust his DFEH administrative remedies. (Mot. 19.) In Brahmana, the district court held that a plaintiff’s submission of an EEOC intake questionnaire was sufficient to constitute a charge with the EEOC. (Id. at p. 3.) Although the Brahmana court also held that the EEOC charge did not meet the requirements of section 12960 because the charge was neither signed nor verified, Brahmana does not stand for the asserted proposition that a DFEH pre-complaint inquiry cannot meet the requirements of section 12960. (See id. at pp. 9-10.) Accordingly, Defendant’s argument fails.

[5] Having found that triable issues exists as to whether the pre-complaint inquiry qualified as a “complaint” for purposes of Government Code, section 12960, the court need not address the parties’ arguments regarding whether Plaintiff is entitled to an equitable exception from the statute of limitations based on the DFEH’s conduct.