30-13-640924
- 1. Motion for Summary Judgment
Defendant TACO BELL CORP. moves for summary judgment and summary adjudication as to the 8 causes of action and the request for punitive damages in the Original Complaint filed by Plaintiff REYNA MARTINEZ on 4/02/13. The court DENIES the motion for summary judgment and summary adjudication for the reasons set forth below.
General Law
Defendant brings this motion for summary judgment. To prevail, Defendant has the burden of proving that there is a complete defense or that Plaintiff cannot establish one or more elements of each of her causes of action. (Barber v. Marina Sailing, Inc. (1995) 36 Cal.App.4th 558, 562, 42 Cal.Rptr.2d 697.) To show that Plaintiff cannot establish her claims, Defendant may either (1) affirmatively negate one or more elements of each claim, or (2) by relying on Defendant’s inadequate discovery responses, show that Defendant does not possess and cannot reasonably obtain needed evidence. (Aguilar v. Atlantic Richfield (2001) 25 Cal.4th 826, 855.)
The initial burden of production is on Defendant to show by a preponderance of the evidence, that it is more likely than not that a given element cannot be established or that a given defense can be established. The ultimate burden of persuasion also rests on Defendant, as the moving party. (Aguilar v. Atlantic Richfield (2001) 25 Cal.4th 826, 850.)
Motion for Summary Adjudication
as to the 1st -8th Causes of Action and
the Request for Punitive Damages
Taco Bell’s motion for summary adjudication is DENIED on procedural grounds. First, the notice of motion is defective because it fails to adequately set forth the grounds for the motion.
Second, the separate statement is defective because it fails properly number each issue. Furthermore, the separate statement asserts generally that each of the 8 causes of action and the request for punitive damages “has no merit.” But the separate statement fails to explain why each claim lacks merit.
Third, the court cannot tell, from reading the notice of motion and separate statement, whether Defendant is trying to negate an element of each claim, is trying to show that Plaintiff does not possess and cannot reasonably obtain needed evidence, or is trying to establish an affirmative defense.
Fourth, the separate statement recites the same material facts in the same order for each of the 8-9 issues. But the claims and issues are so radically different from one another that it is not possible for the court to discern Taco Bell’s arguments from one generic list of facts. A proper motion must tailor the facts and argument to each claim. And where Taco Bell is attacking more than one element of a claim, the attack must be broken down into various sub-issues, which was no done here.
Fifth, the headings in the memorandum in support do not track the headings in the separate statement.
Because the separate statement is defective and fails to adequately identify the issues to be decided, the court may treat the motion for summary adjudication as a motion for summary judgment. (CRC 3.1350 (d), (h); Schmidlin v. City of Palo Alto (2007) 157 Cal.App.4th 728, 744; Homestead Savings v. Superior Court (1986) 179 Cal.App.3d 494, 497-498.)
Motion for Summary Judgment/Adjudication
as to 20th Affirmative Defense
Taco Bell notice of motion and separate statement adequately raise the question of whether Taco Bell is entitled to summary judgment on its 20th affirmative defense.
Taco Bell argues that it can defeat all of Plaintiff’s claims, as a matter of law, because the workers’ compensation laws are the exclusive remedy for claims for physical or mental injuries. (Cole v. Fair Oaks Fire Protection District (1987) 43 Cal.App.3d 148; Shoemaker v. Myers (1990) 52 Cal.App.3d 1; Livitsanos v. Superior Court (1992) 2 Cal.4th 744; Vuillemainroy v. Americn Rock & Asphalt Inc. (1999) 70 Cal.4th 1280.)
But this argument clearly fails. In Opposition, Plaintiff argues correctly that the California Supreme Court has squarely held that a plaintiff’s common law claims and FEHA claims (Fair Employment and Housing Act) are not barred by the workers’ compensation remedy. (City of Moorpark v. Superior Court (1998) 18 Cal.4th 1143, 1156.)
Furthermore, the court cannot grant summary adjudication as to specific claims, because Taco Bell’s notice of motion and separate statement fail to identify which claims the defense is directed against.
Motion for Summary Judgment/Adjudication
as to the First Cause of Action for Employment Discrimination based on Disability (Gov. Code 12940 9(a))
A. Burden of Proof at Trial
At trial, the initial burden is on the plaintiff to establish a prima facie case of discrimination. This step is designed to eliminate at the outset the most patently meritless claims, as where the plaintiff is not a member of the protected class or was clearly unqualified, or where the job sought was withdrawn and never filled. (Guz v. Bechtel National Inc. (2000) 24 Cal.4th 317, 355-356.)
The plaintiff must provide evidence that:
(1) she was a member of a protected class,
(2) she was qualified for the position she sought or was performing competently in the position she held,
(3) she suffered an adverse employment action such as termination, demotion, or denial of an available job, AND
(4) some other circumstance suggests discriminatory motive. (Ibid.)
If, at trial, the plaintiff establishes a prima facie case, this creates a mandatory rebuttable presumption of discrimination. So if the trier of fact believes the plaintiff’s case and if the employer is silent in the face of the presumption, the court must enter judgment for the plaintiff because no issue of fact remains in the case. (Ibid.)
The burden then shifts to the employer to rebut the presumption by producing admissible evidence sufficient to raise a genuine issue of fact and to justify a judgment for employer, that its action was taken for a legitimate nondiscriminatory reason. If the employer sustains this burden the presumption of discrimination disappears. (Ibid.)
The plaintiff must then have the opportunity to attack the employer’s proffered reasons as pretexts for discrimination, or to offer any other evidence of discriminatory motive. In an appropriate case, evidence of dishonest reasons, considered together with the elements of the prima facie case, may permit a finding of prohibited bias. (Ibid.)
The ultimate burden of persuasion on the issue of actual discrimination remains with the plaintiff. (Ibid.)
B. Burden of Proof on Motion for Summary Judgment/Adjudication
Even if the court were to ignore the procedural defects and consider the substance of Taco Bell’s arguments as to the First Cause of Action, the court would still DENY the motion for summary adjudication as to the First Cause of Action and would still DENY the motion for summary judgment.
1. Plaintiff Has No Evidence of Intentional Discrimination?
First, Taco Bell merely asserts that “Plaintiff offers no evidence that the Defendant engaged in intentional discrimination. Rather, she attempts to prove her claims based merely on the timing of her PIP, annual performance review, and termination. (Taco Bell’s Motion at p. 8, Fact 44.) But this argument fails because Taco Bell fails to carry its evidentiary burden. On a motion for summary judgment, the initial burden is on Taco Bell to cite evidence, in the form of devoid discovery responses, to prove that Plaintiff does not possess or cannot reasonably obtain needed evidence.
So the burden does not shift to Plaintiff and the court need not consider Plaintiff’s Opposition or the evidence and arguments in support thereof.
2. Taco Bell Had a Legitimate Non-Discriminatory Reason for Terminating Plaintiff, Due to Her Poor Work Performance
Second, Taco Bell argues that it had a legitimate, non-discriminatory reason for terminating Plaintiff’s employment, because of her poor work performance. (Taco Bell’s Facts 26, 28-30.)
But in Opposition, Plaintiff raises a triable issue of material fact as to whether her work performance really was poor. (See generally Ponce and Maitland Decls.) She testifies that she continued receiving praise from Taco Bell even while she was on the Performance Improvement Plan, and she testifies that Ms. Gallegos never told her she was not meeting the PIP objectives. (Martinez Decl. at ¶¶ 23-25.)
Plaintiff also raises a triable issue of fact as to whether she was subjected to improper harassment, whether she was terminated because of absences due to legitimate medical and psychiatric disabilities, and whether the termination was improper in light of FMLA and CFRA protection. (Martinez Decl. at ¶ 22.)
She testifies that she took time off in March 2011 for depression, anxiety, and stress and was harassed by her supervisor Ms. Gallegos, but that her complaints to Ms. Ensley were never investigated or acted upon. In Nov. 2011 she became sick with what appeared to be a virus and that she obtained a note from her physician placing her on disability leave from Nov. 11 – Nov. 22, 2011. On March 8, 2012, she took a medical leave for depression and anxiety and obtained notes from her psychiatrist. Her leave was extended several times until June 12, 2012. She was terminated upon her return to work on June 12, 2012. (See generally Martinez Decl. at ¶¶ 8 – 20.)
Plaintiff also raises a triable issue of fact as to whether Taco Bell has a pattern and practice of unfairly terminating employees who take time off due to legitimate disabilities. (See generally Jimenez and Magana Decls.)
Plaintiff’s Objections to Taco Bell’s Evidence in Support of Motion
Objections I – XIII to Exs. D-F, N-P, R-S, U-W, CC — OVERRULED
Taco Bell’s Objections to Plaintiff’s Evidence in Opposition
A. Magana Decl.
Objections 1-23 – OVERRULED
B. Maitland Decl.
Objections 24-62 – OVERRULED
C. Jimenez Decl.
Objections 63-79 – OVERRULED
D. Ponce Decl.
Objections 80-91 – OVERRULED
E. Martinez Decl.
Objections 92-121 — OVERRULED
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