Case Number: BC500970 Hearing Date: April 10, 2014 Dept: 58

Judge Rolf M. Treu
Department 58
Hearing Date: Thursday, April 10, 2014
Calendar No.: 7
Case Name: Castaneda v. Perrin Bernard Supowitz, Inc., et al.
Case No.: BC500970
Motion: (1) Motion for Summary Judgment/Adjudication
(2) Motion to Bifurcate
Moving Party: Defendant Perrin Bernard Supowitz, Inc. dba Individual Foodservices
Responding Party: Plaintiff Jesus Castaneda (as to MSJ/MSA only)
Notice: OK

Tentative Ruling: (1) Motion for summary judgment is denied. Summary adjudication is granted as to the 3rd, 6th, 7th, 9th, 11th, and 12th COAs and is otherwise denied.

(2) Motion to bifurcate is granted.

Background –
On 2/13/13, Plaintiff Jesus Castaneda filed this action against Defendants Perrin Bernard Supowitz, Inc. (“PBSI”) dba Individual Food Services and/or Individual Group; Bryan Gallop; and Joe Flores arising out of his employment and termination. Plaintiff asserts causes of action for (1) disability discrimination, (2) age discrimination, (3) national origin discrimination, (4) failure to engage in the interactive process, (5) failure to accommodate, (6) national origin harassment, (7) disability harassment, (8) failure to prevent discrimination and harassment, (9) retaliation, (10) wrongful discharge, (11) intentional infliction of emotional distress, and (12) unfair business practices.

On 11/4/13, the Court denied a motion to compel arbitration filed by PBSI and Flores. On 2/28/14, Plaintiff voluntarily dismissed Gallop with prejudice. On 3/11/14, Plaintiff voluntarily dismissed Flores without prejudice. Trial is set for 4/21/14; FSC for 4/10/14.

Motion for Summary Judgment/Adjudication –
PBSI moves for summary judgment/adjudication.

1. Evidentiary Objections
Plaintiff objects to portions of the declaration of Jennifer Tsai (Nos. 1-4), Zoyla Rice (Nos. 5-8), Rena Muro (No. 9), and Paul Arias (Nos. 10-12). Objection Nos. 10 and12 are sustained; remainder are overruled.

PBSI objects to portions of the declarations of Celeste Semmere, Jesus Castaneda; Roberto Munoz; Eduardo Garcia; Roman Esparza; Brian Gallop; and Richard I. Fedder, M.D. PBSI’s objections were not numbered which is required by CRC 3.1354(b). They are thus not considered.

2. Request for Judicial Notice
Plaintiff requests judicial notice of the EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act. The RJN is granted.

3. 6th and 7th COAs: Harassment based on National Origin and Disability
PBSI argues that Plaintiff’s harassment claims are barred because Plaintiff did not timely file a DFEH complaint. See Gov’t Code § 12960(d); Martinez v. Master Protection Corp. (2004) 118 Cal.App.4th 107, 117. It is undisputed that Plaintiff’s DFEH complaint was filed on 2/16/12 (Pl.’s Opp’n Sep. Statement [“POSS”] ¶ 1); that Plaintiff commenced a leave of absence on 11/24/10 and did not return to work thereafter (see id. ¶ 7); and that Plaintiff did not have any conversations with Flores after 11/24/10 (id. ¶ 8).

The timeliness of Plaintiff’s harassment claims is based on the continuing violation doctrine arising out of a conversation with Gallop on 2/17/11. POSS ¶ 9; Castaneda Decl. ¶ 53. However, the evidence concerning this conversation only consists of Gallop mocking Plaintiff for his weight loss and stating that Plaintiff’s illness was beneficial. There is no showing that this conversation is related to national origin. See Trovato v. Beckman Coulter, Inc. (2011) 192 Cal.App.4th 319, 327 (requiring that at least one act of harassment occur during the limitations period to apply the continuing violation doctrine).

To the extent Plaintiff argues that his discrimination claims can form the basis of a continuing violation as to harassment, this improperly applies the continuing violation doctrine. While it is true that a single act can constitute both discrimination and harassment, a continuing violation exists if the conduct falling within the limitations period is similar in kind to conduct falling outside the period, has occurred with reasonable frequency, and has not acquired a degree of permanence. Trovato, 192 Cal.App.4th at 326. Plaintiff’s evidence fails to raise triable issues of fact that the 2/17/11 conversation is similar in kind to previous harassing conduct. Additionally, PBSI correctly notes that the 2/17/11 conversation is not objectively severe or pervasive to constitute harassment. See Miller v. Dept. of Corrections (2005) 36 Cal.4th 446, 462.

Therefore, the motion for summary adjudication is granted as to the 6th and 7th COAs.

4. 1st, 4th, and 5th COAs: Disability-Based Claims
It is undisputed that Plaintiff filed a workers’ compensation claim on 3/31/11, alleging a work-related injury from 11/24/09 to 11/24/10. It is undisputed that in connection with Plaintiff’s workers’ compensation claim, Plaintiff’s primary physician reported that Plaintiff should be considered temporarily totally disabled if his employer is unable to provide an accommodation and included work restrictions relating to lifting. POSS ¶¶ 18-19.

a. Prima Facie Case
PBSI argues that Plaintiff cannot establish a prima facie case of disability discrimination as to ability to perform the essential duties with or without a reasonable accommodation. Wills v. Superior Court (2011) 195 Cal.App.4th 143, 160. See also Scotch v. Art Institute of California-Orange County, Inc. (2009) 173 Cal.App.4th 986, 1003, 1013 (concerning reasonable accommodations for failure to accommodate and failure to engage in the interactive process claims). However, PBSI’s evidence concerning the essential functions of Plaintiff’s job is disputed by evidence provided by Plaintiff. See POSS ¶¶ 20-21. This raises triable issues of fact as to the prima facie claims for disability discrimination, failure to accommodate, and failure to engage in the interactive process.

b. Judicial Estoppel
PBSI argues that Plaintiff is judicially estopped from bringing these disability-based claims (see Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 183) because of Plaintiff’s workers’ compensation claim. However, Jackson noted the distinction between determinations of disability for purposes of disability claims and in determining eligibility under benefit programs. Id. at p. 187-88. Additionally, Jackson concerned a workers’ compensation award in which a claimant was determined to be permanently disabled. Id. at 188-89.

PBSI fails to establish that the doctrine of judicial estoppel applies. Although it is undisputed that Plaintiff has been paid disability benefits (POSS ¶¶ 25-26), PBSI’s evidence does not establish that Plaintiff has asserted a position in the workers’ compensation claim that is totally inconsistent with his disability-based claims in this action (see Jackson, 60 Cal.App.4th at 189). Notably, PBSI’s evidence suggests that the determination of Plaintiff being temporarily totally disabled was based on the lack of accommodations. See POSS ¶¶ 18-19. Additionally, Plaintiff has submitted evidence that Plaintiff could be reasonably accommodated. See Fedder Decl. ¶¶ 10-13. This is insufficient to require Plaintiff to explain or attempt to resolve the disparity between Plaintiff’s workers’ compensation claim and his disability-based claims in this action.

c. Other Disability-Based Claims
Consistent with the above, the motion for summary adjudication is denied as to the 1st, 4th, and 5th COAs.

Because the disability discrimination claim survives, the 8th COA for failure to prevent discrimination (see Trujillo v. North Country Transit Dist. (1998) 63 Cal.App.4th 280, 289) and 10th COA for wrongful discharge (see Shoemaker v. Myers (1990) 52 Cal.3d 1, 24; City of Moorpark v. Superior Court (1998) 18 Cal.4th 1143, 1158-1161) also survive.

5. 2nd, 3rd, 9th, and 10th COAs: Age and National Origin Discrimination, Retaliation, and Wrongful Discharge
PBSI asserts that Plaintiff was placed on inactive status on 2/24/11 once he exhausted his available medical leave. Def.’s Sep. Statement [“DSS”] ¶ 37. PBSI argues that Plaintiff cannot establish that the reasons for placing Plaintiff on inactive status was untrue or pretextual, or that the employer acted with a discriminatory animus, or a combination thereof, such that a reasonable trier of fact could conclude that the employer engaged in intentional discrimination. Wills, 195 Cal.App.4th at 160-61.

a. Age Discrimination
However, Plaintiff offers evidence supporting age animus, whereby older employees were subject to different treatment (Pl.’s Add’l Material Facts [“PAMF”] ¶¶ 73, 75) and PBSI has replaced higher paid senior employees with younger workers who could be paid less (id. ¶¶ 143-146). PBSI argues that Plaintiff’s evidence is contradictory because Plaintiff concedes a paradigm for giving preferences based on seniority. See PAMF ¶¶ 2-8. However, this only raises triable issues of fact as to whether Plaintiff was placed on inactive status due to his age arising out of the distinction between seniority based on years of service and age (see Hazen Paper Co. v. Biggins (1993) 507 U.S. 604, 611-12). The motion for summary adjudication is denied as to the 2nd COA.

b. National Origin Discrimination
Plaintiff’s national origin discrimination claim appears to be based on slurs against Latinos and Mexicans. PAMF ¶¶ 52, 56-60. However, Plaintiff fails to submit any evidence showing that these slurs are related to the decision to place Plaintiff on inactive status. See Reid v. Google, Inc. (2010) 50 Cal.4th 512, 540-41 (explaining the stray remarks doctrine). Notably, it is undisputed that virtually all warehouse employees were Hispanic and 80% of warehouse workers were of Mexican heritage. POSS ¶ 44. The motion for summary adjudication is granted as to the 3rd COA.

c. Retaliation
Plaintiff’s only evidence as to retaliation appears to be based on his complaints concerning racist comments which were not acted upon and for which Plaintiff was highly discouraged about complaining again. PAMF ¶¶ 68-69. This is insufficient to raise triable issues of fact as to whether he was placed on inactive status based on complaints opposing any practices forbidden under FEHA (see Gov’t Code § 12940(h); Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1046-47). The motion for summary adjudication is granted as to the 9th COA.

d. Wrongful Discharge
PBSI correctly notes that Plaintiff failed to submit any evidence concerning discrimination based on filing a workers’ compensation claim (see Complaint ¶ 94 (citing to Labor Code § 132(a)). However, the Court notes that the 10th COA is not solely based on Labor Code § 132(a); therefore, summary adjudication is improper as to the 10th COA as it would not completely dispose of the claim (see CCP § 437c(f)91)).

6. 11th COA: Intentional Infliction of Emotional Distress
PBSI argues that Plaintiff’s intentional infliction of emotional distress claim is only based on personnel management activity which is not extreme and outrageous conduct. Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 80. The Court agrees. The only remaining claims are based on discrimination arising out of Plaintiff being placed on inactive status. This is insufficient to support an intentional infliction of emotional distress claim. The motion for summary adjudication is granted as to the 11th COA.

7. 12th COA: Unfair Business Practices
PBSI correctly notes that Plaintiff’s unfair business practices claim seeks disgorgement of profits received by PBSI (Complaint ¶ 106) for which Plaintiff fails to establish an ownership interest (Alch v. Superior Court (2004) 122 Cal.App.4th 339, 406). Plaintiff wholly failed to address this argument. Therefore, the motion for summary adjudication is granted as to the 12th COA.

8. Punitive Damages
PBSI argues that Plaintiff cannot establish entitlement to punitive damages by clear and convincing evidence. The Court notes that Defendants failed to submit any evidence that Plaintiff’s termination was not made, authorized, or ratified by a corporate officer, director, or managing agents (White v. Ultramar, Inc. (1999) 21 Cal.4th 563, 573; Civil Code § 3294(b)). Taking into account the clear and convincing evidentiary standard required for punitive damages (see American Airlines, Inc. v. Sheppard, Mullin, Richter & Hampton (2002) 96 Cal.App.4th 1017, 1049), Plaintiff’s evidence is sufficient to raise triable issues of fact as to whether Defendants acted with malice or oppression (see Cloud v. Casey (1999) 76 Cal.App.4th 895, 912). The motion for summary adjudication is denied as to Plaintiff’s claim for punitive damages.

9. Ruling
The Motion for summary judgment is denied. Summary adjudication is granted as to the 3rd, 6th, 7th, 9th, 11th, and 12th COAs and is otherwise denied.

Motion to Bifurcate –
PBSI moves to bifurcate trial as to Plaintiffs’ punitive damages claim concerning PBSI’s financial condition pursuant to Civil Code § 3295(d). Civil Code § 3295(d) provides in pertinent part:
The court shall, on application of any defendant, preclude the admission of evidence of that defendant’s profits or financial condition until after the trier of fact returns a verdict for plaintiff awarding actual damages and finds that a defendant is guilty of malice, oppression, or fraud in accordance with Section 3294. Evidence of profit and financial condition shall be admissible only as to the defendant or defendants found to be liable to the plaintiff and to be guilty of malice, oppression, or fraud.

No opposition was filed. Therefore, the motion to bifurcate is granted.