(1) Motion for Summary Judgment and /or SAI (2) Motion to Compel Deposition (Oral or Written)

Tentative Ruling: (1) Ralphs’ Motion for Summary Judgment is DENIED as to both plaintiffs. Ralphs’ Motion for Summary Adjudication of Issues 1 through 7 (as to Plaintiff Castro) is DENIED as to Castro’s COAs for breach of contract, breach of the covenant of good faith and fair dealing, wrongful termination in violation of the Fair Employment and Practices Act, discrimination, promissory estoppel and negligence. Ralphs’ Motion for Summary Adjudication as to Plaintiff Castro is GRANTED as to the COA for defamation. Ralphs’ Motion for Summary Adjudication of Issues 8 through 15 (as to Plaintiff Martak) is DENIED as to Martak’s two COAs for discrimination and negligence, and GRANTED as to Martak’s remaining COAs for breach of contract, breach of the covenant of good faith and fair dealing, promissory estoppel and defamation.

Defendant’s RFJN: Ralphs’ unopposed Request for Judicial notice that the average gestational period of a human fetus is 280 days, or approximately 40 weeks, is GRANTED.

Plaintiffs’ Evidentiary Objections: The Court declines to consider Plaintiffs’ evidentiary objections for failure to comply with Rule 3.1354 of the California Rules of Court. In their 48 pages of evidentiary objections, Plaintiffs object to 126 “facts” taken from Ralphs’ separate statement, which are not evidence, but rather are based on evidence, and in many cases multiple sources of evidence. In so doing, Plaintiffs fail to separately identify each piece of evidence to which they object and quote the objectionable language or material from that evidence. (Hodjat v. State Farm Mut. Auto. Ins. Co. (2012) 211 Cal. App. 4th 1, 8-9 [“. . .[I]nterposing objections into the separate statement defeats the goal of allowing the trial court to quickly and efficiently determine what particular piece of evidence is admitted and what is not. This is because the separate statement is focused on individual facts, which may be supported by the same or different pieces of evidence. A trial court would be forced to wade through all of the facts in order to rule on a particular piece of evidence.”].)

Defendant’s Evidentiary Objections: 1. Exhibit A to Malek Declaration (California Secretary of State records re corporate status of Smith’s Food King): SUSTAINED on relevance grounds. 2. Exhibit B to Malek Declaration (letter from Brook Childs in Plaintiff’s personnel file): OVERRULED. Contents of Plaintiff’s personnel file produced by Ralph’s in discovery is relevant to issue of Ralph’s knowledge /reasonableness of investigation, but not for truth of statements therein. 3. Exhibit C to Malek Declaration (report from Courtney Wilger re Plaintiff’s personnel file): OVERRULED. Contents of Plaintiff’s personnel file produced by Ralph’s in discovery is relevant to issue of Ralph’s knowledge /reasonableness of investigation, but not for truth of statements therein. 4. Castro Declaration: OVERRULED as to ¶ 3, lines 12-15, 15-17, ¶ 4, line 19; SUSTAINED as to statement that the head of the company “apparently forwarded my communication” and “Mr. Schroeder was not penalized” on the grounds of speculation/lacks foundation.

In making its ruling, the Court considers Plaintiffs’ entire Opposition, including Plaintiffs’ late filed separate statement.

Motion as to Plaintiff Castro

Triable Issues as to Castro’s Wrongful Termination/ Discrimination COAs (3d and 5th COAs – Issue 4):
It is unlawful employment practice for an employer “to discharge [a] person from employment or … to discriminate against [that] person in compensation or in terms, conditions, or privileges of employment” based on that person’s race or national origin. (Gov. Code, § 12940, subd. (a).) As explained by in Jones v. Department of Corrections and Rehabilitation (2007) 152 Cal.App.4th 1367, 1379:

“In general, there are two types of illegal employment discrimination under FEHA: disparate treatment and disparate impact. (Citation omitted.) . . . .[A] disparate treatment theory. . . requires a showing that the employer acted with discriminatory intent. (Citation omitted.) To succeed on a disparate treatment claim at trial, the plaintiff has the initial burden of establishing a prima facie case of discrimination, to wit, a set of circumstances that, if unexplained, permit an inference that it is more likely than not the employer intentionally treated the employee less favorably than others on prohibited grounds. (Citation omitted.) Based on the inherent difficulties of showing intentional discrimination, courts have generally adopted a multifactor test to determine if a plaintiff was subject to disparate treatment. The plaintiff must generally show that: he or she was a member of a protected class; was qualified for the position he sought; suffered an adverse employment action, and there were circumstances suggesting that the employer acted with a discriminatory motive.”

These same elements pertain to both Castro’s claim under the FEHA and his claim for wrongful termination in violation of public policy. (See Arteaga v. Brink’s, Inc. (2008) 163 Cal.App.4th 327, 354 [elements for common law discriminatory termination claim are the same as elements for discrimination claim under FEHA].) California courts apply the McDonnell DouglasCorp. v. Green (1973) 411 U.S. 792 burden-shifting framework to analyze the legal sufficiency of claims for unlawful discrimination based on circumstantial evidence of disparate treatment. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354-355.) Under this framework, a defendant may prevail at summary judgment by articulating a legitimate, non-discriminatory reason for the adverse employment action and showing plaintiff cannot prove the stated reason is a pretext for actual discrimination. (Id. at pp. 362-363.)

Here, while Ralphs attempts to offer a legitimate, non-discriminatory, reason for Castro’s termination (i.e., dishonesty for lying to management during an investigation), triable issues of fact exist regarding whether Ralphs’ reason was pre-textual to discrimination based on his race. The evidence shows Contreras, Martak’s manager, admitted in deposition he told Martak she should not date Mexicans (referring to Castro) when questioning her about her pregnancy. This statement was made while conducting an investigation at management’s direction to determine whether Castro was the father of Martak’s child. The statement is discriminatory on its face, and the results of this “interview” led to Castro’s termination. Also, Castro, who is Hispanic, was terminated for alleged dishonesty, while Martak, who is Caucasian, suffered no consequences whatsoever for the exact alleged dishonesty. Finally, there is evidence suggesting Ralphs had not enforced its policy against managers having personal relationships with subordinates..

Triable Issues as to Castro’s Breach of Contract COAs (1st, 2d and 4th COAs – Issues 1, 2, 3 and 5):
The elements of a breach of contract claim are: (1) existence of a contract; (2) plaintiff’s performance or excuse for nonperformance; (3) defendant’s breach; and (4) resulting damage to plaintiff. (See, e.g., Amelco Electric v. City of Thousand Oaks (2002) 27 Cal.4th 228, 243.) The contractual understanding need not be express, but may be implied in fact, arising from the parties conduct evidence their actual mutual intent to create such enforceable limitations. (Foley v. Interactive Data Corporation (1988) 47 Cal.3d 654, 680.) Promissory estoppel applies whenever a promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance would result in an “injustice” if the promise were not enforced. (Lange v. TIG Ins. Co. (1998) 68 Cal.App.4th 1179, 1185.) “The elements of promissory estoppel are (1) a clear promise, (2) reliance, (3) substantial detriment, and (4) damages “measured by the extent of the obligation assumed and not performed.” (Toscano v. Greene Music (2004) 124 Cal.App.4th 685, 692.) “To be enforceable, a promise need only be definite enough that a court can determine the scope of the duty[,] and the limits of performance must be sufficiently defined to provide a rational basis for the assessment of damages.” (Garcia v. World Sav., FSB (2010) 183 Cal.App.4th 1031, 1045.)

Ralphs does not dispute the existence of an implied-in-fact contract not to terminate Castro without good cause, but rather contends Ralphs had good cause for Castro’s termination (i.e., dishonesty). But the evidence shows there are triable issues of material fact as to whether the termination was a pretext for a discriminatory reason. For example, Ralphs states as an undisputed fact that Castro admitted just before he was terminated he had lied about not having a sexual relationship with Martak prior to her transfer. Castro disputes this purported undisputed fact, contending he never told Ralphs he lied, and has always maintained his relationship with Martak did not begin until after her transfer. Ralphs admits they terminated Castro, at least in part, because of this alleged admission made by Castro, which is disputed. Similarly, there is a triable issue as to whether Ralphs was reasonable in assuming at the time of his termination that Castro was the biological father of Martak’s child, and the way in which Ralphs went about its investigation. According to Ralphs, Castro was fired solely for being dishonest, not for violating company policy that a supervisor is prohibited from having a sexual relationship with a subordinate. However, Ralphs did not terminate, discipline or reprimand Martak, who Ralphs also believed at the time had lied to them during the investigation. .

No Evidence Exists of Defamation (6th COA, Labeled the Fifth on Caption – Issue 6):
Castro contends in his Sixth COA that defendants published words that Castro was a sexual harasser, and that he was forced to self-defame when applying for replacement employment by telling employers he was terminated because of sexual harassment. Ralphs meets its burden of showing there is no evidence that Ralphs defamed Castro, or that Castro was forced to defame himself to obtain a new position. In their opposition, Plaintiffs argue — without citation to any evidence or legal authority — that Castro was required to self-defame in his applications for employment at other grocery companies, and that Ralphs tolerated and possibly encouraged statements of unchaste behavior by Plaintiffs without penalizing the employees engaged in such behavior. (Opposition, 11:14-24.) The Court is unable to locate any evidence in the record that would raise a triable issue of fact as to whether Ralphs published untrue statements about Castro, or Castro was required to self-defame, and that he suffered damages as a result thereof.

Triable Issues as to Castro’s Negligence Claim (7th COA, Labeled the Sixth on Caption – Issue 7):
Plaintiffs allege in the SAC that Ralphs knew or should have known of discriminatory conduct of its employees, but failed to take immediate and appropriate corrective action to remedy the discriminatory actions. To establish negligence, it must be shown that (1) the defendant owed the plaintiff a legal duty, (2) the defendant breached that duty, and (3) the breach was a proximate or legal cause of the plaintiff’s injuries. (Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 673.) Although it is not clear, and Plaintiffs fail to cite any authority in the Opposition regarding the basis for the negligence cause of action, it appears Plaintiffs are alleging a claim for negligent supervision. Given Castro has stated claims for discrimination and wrongful termination, and this COA appears to arise from the same facts as to Ralphs’ failure to conduct a proper investigation and Contreras’ comments (for which he was only verbally warned), summary adjudication is denied.

Motion as to Plaintiff Martak

Martak’s Contract Claims Fail (1st, 2nd and 4th COAs – Issues 8, 9, 10, 12):
Ralphs contends Martak’s COA for breach of contract fails because (1) she does not identify the contracts she alleges have been breached, and (2) she cannot prove breach of any contractual obligation. There is no evidence of any alleged contract, express or implied-in-fact, between Martak and Ralphs that was breached. It is undisputed Martak is still employed by Ralphs as a Front End Manager, with the same salary, and while there may be a triable issue as to whether Ralphs’ decision not to consider her for the management training program is discriminatory, Martak points to no contractual obligation or promises pursuant to which Ralphs is obligated to do so.

Triable Issues as to Martak’s Claims for Discrimination (3d and 5th COAs – Issues 11 and 13):
Triable issues exist as to whether Ralphs’ decision not to allow Martak to enter the management training program is based on legitimate, or discriminatory reasons, including her relationship with Castro, who is Hispanic, her pregnancy, her refusal to answer questions about the identity of the father of her child, her due date and her complaint about Contreras. The evidence shows Ralphs was aware of Martak’s aspirations to become a Store Manager, and told Martak on more than one occasion she could be a good candidate for Ralphs’ prerequisite management training program, but Ralphs declined to send her after her pregnancy. Ralphs admits it factored in to its decision not to send her to management training Castro’s alleged dishonesty regarding when she started a sexual relationship with Castro. Also, Ralphs’ decision to give Contreras a verbal warning and transfer Plaintiff to another store, also raise triable issues relating to Martak’s discrimination claims.

No Evidence Supports Martak’s COA for Defamation (6th COA – Issue 14):
The Motion is granted as to Martak’s defamation COA. Ralphs contends this claim fails because the statements Martak identifies are not defamatory as a matter of law. In her sixth COA, Martak contends Ralphs tolerated abusive gossip about Plaintiff in the workplace and alleges on information and belief that defendants published “their words or belief about plaintiff’s personal relationship, demeaning her and her pregnancy based on racial and gender and marital status discrimination.” In their opposition, Plaintiffs argue — without citation to any evidence or legal authority — that Ralphs tolerated and possibly encouraged statements of unchaste behavior by Plaintiffs without penalizing the employees engaged in such behavior. (Opposition, 11:14-24.) The Court is unable to locate any evidence in the record which would raise a triable issue of fact as to whether Ralphs published false and defamatory statements about Martak, causing her injury.

Triable Issues Regarding Martak’s Negligence COA (7th COA – Issue 15):
Ralphs contends this COA fails because Martak cannot demonstrate Ralphs’ response to her harassment complaint was objectively unreasonable. The evidence shows Contreras asked Martak questions about her pregnancy, including her due date to determine the date of conception and the identity of the father, at Ralphs’ direction. The evidence also shows Contreras told Martak she should not date Mexicans, and Martak contends Contreras asked her why she had not used protection. After she complained of harassment by Contreras, he was verbally warned, and Martak was transferred to another store. Whether or not Ralphs’ investigation was reasonable raises a triable issue of fact

Moving Party is to give notice.

(2) The Motion to Compel Plaintiff Martak to answer the deposition questions she refused to answer is GRANTED as to questions numbered 1, 2, 4, 8, 9 and 10 in the separate statement filed by Ralphs, and otherwise is DENIED. Counsel are to meet and confer to schedule a mutually agreeable time for the continued deposition.

While the questions posed by Ralphs may elicit private information, Plaintiffs – in their SAC — put directly at issue as to when their sexual relationship began. Ralphs has established the information sought by the deposition questions is relevant to the issue of whether Ralphs had a legitimate basis to terminate Castro, who was Plaintiff Martak’s supervisor. Both denied they had a sexual relationship in violation of company policy. Plaintiff Castro continues to maintain he told the truth when he told Ralphs the relationship began after July 3, 2011, when Martek was transferred to another store. Plaintiffs’ opposition does not show any grounds for the withholding of the information.

The Motion was timely filed. Motions to compel answers to deposition questions must be made no later than 60 days after the completion of the record of the deposition. (Code Civ. Proc., § 2025.480(b).) The motion was filed 60 days after completion of the transcript.

Counsel’s declaration regarding her efforts to meet and confer is sufficient. It is clear from the transcript that it was Ms. Martak who refused to answer the questions, her attorney had not instructed her not to answer, and counsel discussed the privacy objection at the deposition. Further meet and confer discussions with counsel would have been futile in this situation where a client refuses to answer despite counsel’s agreement an answer should be given. Plaintiff Martak was advised of the ramifications of refusing to answer, and still refused to answer.

The Court awards monetary sanctions pursuant to Code of Civil Procedure Sections 2025.480(j) and 2023.010(d) and (f) against Plaintiff Martak only, in the amount of $4,560.00,

Plaintiff Martak is ordered to pay the monetary sanctions to Ralphs on or before June 12, 2014.

Moving Party is to give notice.