Case Number: BC711262 Hearing Date: February 19, 2020 Dept: 31

MOTION FOR SUMMARY JUDGMENT IS GRANTED.

Background

On June 22, 2018, Plaintiff Tamorah Thomas filed the instant action against Defendants Santa Monica Community College District (“SMCCD”), Steven Myrow, and Does 1 through 500. The Complaint asserts causes of action for:

Harassment (against Myrow);

Failure to Prevent Harassment (against SMCCD);

Discrimination (against SMCCD);

Failure to Prevent Discrimination (against SMCCD);

Retaliation;

Negligent Infliction of Emotional Distress; and

Intentional Infliction of Emotional Distress.

On November 5, 2018, the Court sustained the demurrer to the fifth cause of action as to only Defendant Myrow without leave to amend. On February 8, 2019, the Court ordered Does 1 through 500 dismissed without prejudice.

Defendants move for summary judgment or, in the alternative, summary adjudication of the first through seventh causes of action.

Legal Standard

The purpose of a motion for summary judgment or summary adjudication “is to provide courts with 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.) “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”¿(Adler v. Manor Healthcare Corp.¿(1992) 7 Cal. App. 4th 1110, 1119.)¿

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“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.”¿(Scalf¿v. D. B. Log Homes, Inc.¿(2005) 128 Cal. App. 4th 1510, 1519.) A defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown 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.” (CCP § 437c(p)(2).) “Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (CCP § 437c(p)(2).) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi¿v. Centro Medico¿Urgente¿Medical Center¿(2008) 159 Cal. App. 4th 463, 467.)

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“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.”¿(Avivi, 159 Cal. App. 4th at 467; CCP §437c(c).)¿

Discussion

Defendants move for summary judgment or, in the alternative, summary adjudication of the first through seventh causes of action.

Summary Judgment/Adjudication in Employment Cases

“[A] case [of discrimination] may be built on direct or circumstantial evidence, or both. [Citations.] “‘Direct evidence is evidence which, if believed, proves the fact [of discriminatory animus] without inference or presumption.’” [Citation.] Where a plaintiff offers direct evidence of discrimination that is believed by the trier of fact, the defendant can avoid liability only by proving the plaintiff would have been subjected to the same employment decision without reference to the unlawful factor. ([Citations]; see, Trans World Airlines, Inc. v. Thurston (1985) 469 U.S. 111, 121, 105 S.Ct. 613, 621–22, 83 L.Ed.2d 523 [direct evidence of discrimination renders shifting burdens of McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 93S.Ct. 1817, 36 L.Ed.2d 668 inapplicable].) Since plaintiffs in employment discrimination cases most often lack direct evidence of the employer’s discriminatory intent, however, courts rely on a system of shifting burdens to aid the presentation and resolution of such claims. [Citations.]” (Morgan v. Regents of University of Cal. (2000) 88 Cal.App.4th 52, 67–68.)

When deciding issues of adverse employment actions, such as retaliation, discrimination, and wrongful termination, the court applies the McDonnell Douglas shifting burdens test. (Caldwell v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 203; Loggins v. Kaiser Permanente Intern. (2007) 151 Cal.App.4th 1102, 1108–09.) “Under the three-part test developed in McDonnell Douglas Corp. v. Green, supra, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668: “(1) The complainant must establish a prima facie case of discrimination; (2) the employer must offer a legitimate reason for his actions; (3) the complainant must prove that this reason was a pretext to mask an illegal motive.” [Citation.]” (Morgan, supra, 88 Cal.App.4th at 68.)

Under this test, “if the employer presents admissible evidence either that one or more of plaintiff’s prima facie elements is lacking, or that the adverse employment action was based on legitimate, nondiscriminatory factors, the employer will be entitled to summary judgment unless the plaintiff produces admissible evidence which raises a triable issue of fact material to the defendant’s showing.” (Caldwell, supra at 203.) Therefore, the initial burden rests with the Defendant. “Once the employer makes a sufficient showing of a legitimate reason for discharge, i.e., that it had a lawful, nondiscriminatory reason for the termination then the discharged employee seeking to avert summary judgment must demonstrate either (by additional facts or legal argument) that the defendant’s showing was in fact insufficient or (by competent evidentiary materials) that there was a triable issue of fact material to the defendant’s showing. With respect to the latter choice, the employee must produce substantial responsive evidence that the employer’s showing was untrue or pretextual. For this purpose, speculation cannot be regarded as substantial responsive evidence.” (Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 225.)

“[T]he great weight of federal and California authority holds that an employer is entitled to summary judgment if, considering the employer’s innocent explanation for its actions, the evidence as a whole is insufficient to permit a rational inference that the employer’s actual motive was discriminatory.” (Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 361.) “It is the employer’s honest belief in the stated reasons for firing an employee and not the objective truth or falsity of the underlying facts that is at issue in a discrimination case.” (King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 436.)

First Cause of Action for Harassment, Second Cause of Action for Failure to Prevent Harassment, Third Cause of Action for Discrimination, Fourth Cause of Action for Failure to Prevent Discrimination, and Fifth Cause of Action for Retaliation

“FEHA claims are governed by two statutory deadlines: section 12960 and section 12965.” (Acuna v. San Diego Gas & Electric (2013) 217 Cal.App.4th 1402, 1411.)

The first through fifth causes of action are brought pursuant to the FEHA.

Statute of Limitations

“Section 12965 concerns a separate statutory deadline applicable after the DFEH issues a right-to-sue notice. The code section provides that after an employee files a complaint and the DFEH does not issue an accusation within a specified period, the DFEH must issue a right-to-sue letter notifying the employee that he or she may bring a civil suit within one year of the date of the notice. [Citations.]

This code section establishes a strict “one-year statute of limitations, commencing from the date of the right-to-sue notice by the [DFEH],” except for certain statutory exceptions. [Citation.] Section 12965’s one-year deadline from the right-to-sue notice is “a condition on a substantive right rather than a procedural limitation period for commencement of an action.” [Citation.] Thus, it “ ‘cause[s] the right which previously arose and on which a suit could have been maintained, to expire.’ ” [Citation.]” (Acuna v. San Diego Gas & Electric Co. (2013) 217 Cal.App.4th 1402, 1413.)

Defendants move for summary adjudication of the first through fifth causes of action arguing that they are barred by the statute of limitations. Defendants present evidence that Plaintiff received her right to sue letter on January 4, 2017. (Undisputed Material Fact (“UMF”) 51.) Plaintiff filed the instant suit on June 22, 2018. (UMF 56.) Defendants assert that Plaintiff’s lawsuit is thus time barred, as suit was filed more than a year after Plaintiff received her right to sue letter.

The Court finds that Defendants have carried their burden establishing that there are no triable issues of material fact as to the running of the statute of limitations and that they are entitled to judgment as a matter of law. Defendants have presented evidence sufficient to establish that Plaintiff’s FEHA claims are time barred. As Plaintiff has failed to oppose the instant motion, Plaintiff has failed to create a triable issue of material fact and Defendants are thus entitled to judgment as a matter of law.

Based on the foregoing, Defendants’ motion for summary adjudication of the first, second, third, fourth, and fifth causes of action is GRANTED.

Sixth Cause of Action for Negligent Infliction of Emotional Distress and Seventh Cause of Action for Intentional Infliction of Emotional Distress

The Government Claims Act (Gov. Code, § 810 et seq.), formerly known as the Tort Claims Act, was enacted in 1963 to establish “a comprehensive codification of the law of governmental liability and immunity in California” (Farmers Ins. Group v. County of Santa Clara (1995) 11 Cal.4th 992, 1001), and “enable [public entities] to adequately investigate claims and to settle them, if appropriate, without the expense of litigation” (City of San Jose v. Superior Court (1974) 12 Cal.3d 447, 455). Government Code section 954.4 states that “no suit for money or damages may be brought against a public entity on a cause of action for which a claim is required to be presented . . . until a written claim therefor has been presented to the public entity and has been acted upon by the board, or has been deemed to have been rejected by the board.” “[T]he failure to allege the filing of a claim is fatal” to a plaintiff’s complaint. (Neal v. Gatlin¿(1973) 35 Cal.App.3d 871, 878.)

Pursuant to Government Code section 950.2, “[e]xcept as provided in Section 950.4, a cause of action against a public employee or former public employee for injury resulting from an act or omission in the scope of his employment as a public employee is barred if an action against the employing public entity for such injury is barred under Part 3 (commencing with Section 900) of this division or under Chapter 2 (commencing with Section 945) of Part 4 of this division. This section is applicable even though the public entity is immune from liability for the injury.”

Defendants move for summary adjudication of the sixth and seventh causes of action for negligent and intentional infliction of emotional distress arguing that Plaintiff cannot establish compliance with the Tort Claims Act, as Plaintiff did not file a claim for damages. (UMF 52.) Defendants assert that accordingly, Plaintiff’s sixth and seventh causes of action are barred by the Tort Claims Act.

The Court finds that Defendants have carried their burden establishing that there are no triable issues of material fact as to the filing of a claim against Defendants and that they are entitled to judgment as a matter of law. Defendants have presented evidence sufficient to establish that Plaintiff has not complied with the claim presentation requirement under Section 954.4. As Plaintiff has failed to oppose the instant motion, Plaintiff has failed to raise a triable issue of material fact and Defendants are thus entitled to judgment as a matter of law.

Based on the foregoing, Defendants’ motion for summary adjudication of the sixth and seventh causes of action is GRANTED. Defendants’ motion for summary judgment is GRANTED.

Conclusion

Defendants’ motion for summary judgment is GRANTED.

Moving party to give notice.