Case Name:   Hoa Nguyen v. Grace Chiropractic, Inc., et al.

Case No.:       1-13-CV-241831

Motion for Summary Judgment or Alternative Motion for Summary Adjudication by defendants Grace Chiropractic, Inc. and Kevin Eichhorst, D.C. (sued as Kevin Eichenhorst, DC)

As a preliminary matter, the court notes that defendant’s memorandum of points and authorities is in excess of the page limitations allowed by California Rules of Court, rule 3.1113, subdivision (d). Defendants Grace Chiropractic, Inc. and Kevin Eichhorst, D.C. and defendants’ counsel are hereby placed on notice that any future failure to comply with the California Rules of Court may result in the court’s refusal to consider the party’s papers. (See California Rules of Court, rules 3.1113, subd. (g) and 3.1300, subd. (d).)

Defendant Grace Chiropractic, Inc.’s motion for summary judgment is DENIED.

Defendant Grace Chiropractic, Inc.’s alternative motion for summary adjudication of the first cause of action in plaintiff Hoa Nguyen’s second amended complaint is DENIED. At the outset, defendant it unclear whether plaintiff is asserting a termination or a constructive discharge. (See Second Amended Complaint (“SAC”), ¶¶21, 23, 27, 28, 37, and 55.) In opposition, plaintiff clarifies that she inadvertently included language regarding constructive discharge. (See pp. 7:19 – 8:5 of Plaintiff’s Memorandum of Points and Authorities in Opposition, etc.) Consequently, the court analyzes the claim as one for wrongful termination. One of the elements of a claim for wrongful termination in violation of public policy is defendant’s termination of plaintiff’s employment. After full consideration of the evidence, the separate statements submitted by each party, the authorities submitted by each party, the court finds a triable issue of material fact exists with regard to whether defendant terminated plaintiff’s employment. (See Separate Statement of Undisputed Material Facts, etc. (“Defendants’ UMF”), Issue 1, Subsection 1, Fact Nos. 2 and 5; Subsection 2, Fact Nos. 1 – 10; see ¶9 to the Declaration of Hoa Nguyen in Opposition, etc. (“Declaration Nguyen”).)

Defendant Grace Chiropractic, Inc.’s alternative motion for summary adjudication of the second cause of action in plaintiff Hoa Nguyen’s second amended complaint is GRANTED. “A defendant’s motion for summary judgment or summary adjudication ‘necessarily includes a test of the sufficiency of the complaint’ and its legal effect is the same as a demurrer or motion for judgment on the pleadings.” (Weil & Brown et al., CAL. PRAC. GUIDE: CIV. PRO. BEFORE TRIAL (The Rutter Group 2014) ¶10:52, p. 10-25 citing American Airlines, Inc. v. County of San Mateo (1996) 12 Cal.4th 1110, 1118.) The second cause of action does not sufficiently state a claim for sexual/ gender discrimination because there is no allegation of a nexus between the termination and plaintiff’s gender. Instead, plaintiff alleges her refusal to perform an illegal act as the reason for her termination.

Defendant Grace Chiropractic, Inc.’s alternative motion for summary adjudication of the third cause of action in plaintiff Hoa Nguyen’s second amended complaint is GRANTED. “To establish a prima facie case of retaliation, the plaintiff must show (1) he or she engaged in a protected activity; (2) the employer subjected the employee to an adverse employment action; and (3) a causal link between the protected activity and the employer’s action.  Once an employee establishes a prima facie case, the employer is required to offer a legitimate reason for the adverse employment action.  If the employer produces a legitimate reason for the adverse employment action, the presumption of retaliation ‘drops out of the picture,’ and the burden shifts back to the employee to prove intentional retaliation.” (Akers v. County of San Diego (2002) 95 Cal.App.4th 1441, 1453.) After full consideration of the evidence, the separate statements submitted by each party, the authorities submitted by each party, the court finds defendant Grace Chiropractic, Inc. has met its initial burden of showing that plaintiff did not engage in a protected activity. (See Defendants’ UMF, Issue 3, Subsection 9, Fact Nos. 1, 3, 4, 7, 9, and 10 – 14.) Plaintiff fails to present any admissible evidence in opposition which would create a triable issue of material fact. “The Supreme Court has consistently refused to allow a triable issue of fact to be conjured by the submission of an affidavit contradicting the declarant’s prior deposition testimony.” (Scheiding v. Dinwiddie Construction Co. (1999) 69 Cal.App.4th 64, 77.) Plaintiff cannot avoid summary judgment/ adjudication of this retaliation claim by now submitting a declaration which substantially differs from her earlier testimony.

Defendant Grace Chiropractic, Inc.’s alternative motion for summary adjudication of the fourth cause of action in plaintiff Hoa Nguyen’s second amended complaint is GRANTED. “Every contract imposes upon each party a duty of good faith and fair dealing in its performance and its enforcement.”  (Rest.2d Contracts, §205.)  “There is an implied covenant of good faith and fair dealing in every contract that neither party will do anything which will injure the right of the other to receive the benefits of the agreement.”  (Comunale v. Traders & General Ins. Co. (1958) 50 Cal.2d 654, 658; see also CACI, No. 325.) In the fourth cause of action, plaintiff alleges, in relevant part, “Implicit in an employment contract is that no party will ask another party to do any acts which are demeaning, humiliating, or illegal.” (SAC, ¶49.) After full consideration of the evidence, the separate statements submitted by each party, the authorities submitted by each party, the court finds defendant Grace Chiropractic, Inc. has met its initial burden of showing that plaintiff did not breach the implied covenant, i.e., did not ask plaintiff to do any illegal act. (See Defendants’ UMF, Issue 3, Subsection 9, Fact Nos. 1, 3, 4, 7, 9, and 10 – 14.) Plaintiff fails to present any admissible evidence in opposition which would create a triable issue of material fact.

Defendant Grace Chiropractic, Inc.’s alternative motion for summary adjudication of the fifth cause of action in plaintiff Hoa Nguyen’s second amended complaint is DENIED for the same reasons stated above regarding the first cause of action.

Defendant Kevin Eichhorst, D.C.’s motion for summary judgment is DENIED. After full consideration of the evidence, the separate statements submitted by each party, the authorities submitted by each party, the court finds defendant Kevin Eichhorst, D.C. has not met his initial burden of showing that one or more elements of the causes of action cannot be established or that there is a complete defense thereto. Since defendant Kevin Eichhorst, D.C. has not met his initial burden, the burden does not shift to plaintiff to show the existence of a triable issue of material fact. (See Code Civ. Proc., §437c, subd, (p)(2).)