2011-00114353-CU-OE

Albert Flores vs. California Department Of Consumer Affairs

Nature of Proceeding:    Motion for Summary Judgment and/or Adjudication

Filed By:   Perkell, Jennifer G.

Defendant California Department of Consumer Affairs Bureau of Automotive Repair
(“BAR”) Motion for Summary Judgment and/or summary adjudication is denied.

The parties’ unopposed requests for judicial notice are granted.

In this employment discrimination action, Plaintiff Albert Flores, Jr. alleges FEHA
based causes of action against BAR for disability discrimination, failure to
accommodate a disability, racial discrimination and failure to prevent racial
discrimination and harassment.  Plaintiff alleges that he was injured in March 2008
while driving a state-issued vehicle and that he was ultimately discriminated against
based upon a disability resulting from the accident.  In addition, he alleges that during
his employment with BAR he was continuously subjected to a work environment
dominated by racially derogatory comments directed at him.

At the outset, the Court must note that BAR’s motion was difficult to follow.  The notice
of motion entirely fails to comply with CRC Rule 3.1350(b) which requires that where
summary adjudication is sought, the “specific cause of action, affirmative defense,
claims for damages, or issues of duty must be stated specifically in the notice of
motion.”  Here the notice of motion simply states that summary adjudication is sought
as to “specific causes of action alleged in the First Amended Complaint”, yet the 63
page separate statement then sets forth ten issues.  The memorandum of points and
authorities contains numerous arguments and it is entirely unclear at times what issue
set forth in the separate statement (which should have also been clearly stated in the
notice) is being addressed.  Indeed, at times it appeared that issues that were in the
separate statement were not addressed in the points and authorities.  This created a
burden on the Court.  The Court’s analysis simply tracks the arguments set forth in the
memorandum of points and authorities.

Plaintiff, who is of Filipino descent, was a Program Representative 1 (“PG1”) at BAR in
the Consumer Protection Operations Unit (“CPO”).  Plaintiff investigated consumer
complaints against auto shops.  Plaintiff used a BAR-issued vehicle to travel.  Plaintiff
was initially assigned a 2001 Dodge Durango but re-assigned a 1999 Ford Taurus
which he claimed was defective and that the decision was made based on his race.  In
March 2008 he was injured when a seatbelt assembly malfunctioned.  Plaintiff’s doctor
imposed restrictions, including prohibiting Plaintiff from driving a vehicle with
overlocking seatbelt mechanisms.  BAR then determined that Plaintiff could not drive a
BAR vehicle in connection with his job and then contemplated transferring him to
position within the Consumer Assistance Program (“CAP”) to accommodate his
disability.  After the meeting at which the CAP transfer was discussed, Plaintiff suffered
a breakdown at work and the paramedics were called.  Plaintiff ultimately underwent
surgery in which a portion of his spine was removed and he became permanently
disabled.

Timeliness/Exhaustion Though not self-evident from the moving papers, BAR first appears to seek summary
adjudication of the first (disability discrimination), third (failure to accommodate), fifth
(racial discrimination) and sixth (failure to prevent racial discrimination/harassment)
causes of action on the basis that “most” of Plaintiff’s claims are time-barred and
because Plaintiff otherwise failed to exhaust his administrative remedies.  The motion
on these bases is denied.

Government Code § 12960 provides that no FEHA complaint may be filed “after the
expiration of one year from the date upon which the alleged unlawful employment
practice occurred…”  If a DFEH administrative complaint is not filed within one year
from the date of the alleged unlawful employment practice, the complaint is untimely.  (
th
Holland v. Union Pacific R Co. (2007) 154 Cal.App.4   940, 945.)

Here, BAR argues that the DFEH complaint was filed on November 29, 2009 and thus
he only exhausted his administrative remedies with respect to incidents occurring
within one year prior to that date, which it argues is only the November 23, 2008,
“reasonable accommodation” meeting at which his transfer to CAP was discussed.  It
argues that all other incidents in the FAC fall outside the one year time period and are
barred.  The motion on this basis is denied.   Indeed, even if BAR is correct that
Plaintiff failed to timely exhaust his administrative remedies for any incidents occurring
one year prior to the date he filed his November 23, 2009 DFEH complaint, the motion
would fail to completely dispose of any cause of action as required by CCP § 437c(f)
(1).  BAR even concedes that first and fifth causes of action for disability and racial
discrimination are not “entirely barred”.  (BAR’s Sep. State. Issues 1-2.)  Thus, BAR
failed to meet its initial burden with respect to the first and fifth causes of action.  The
Court will not separately adjudicate whether separate instances other than the
November 23, 2008, meeting were timely as doing so would not completely dispose of
a cause of action.  The motion is therefore denied as to the first and fifth causes of
action on the basis that they were untimely.  The Court therefore need not address
Plaintiff’s continuing violations argument with respect to the acts preceding November
23, 2008 as they relate to the first and fifth causes of action.

With respect to the third cause of action for failure to accommodate under FEHA and
the sixth cause of action for failure to prevent racial discrimination, BAR appears to
argue that Plaintiff failed to exhaust his administrative remedies because he failed to
specifically enumerate these claims in his DFEH complaint. Of course, “The
administrative exhaustion requirement is satisfied if the allegations of the civil action
are within the scope of the [DFEH] charge, any [DFEH] investigation actually
completed, or any investigation that might reasonably have been expected to grow out
th
of the charge.” ( Wills v. Superior Court (2011) 195 Cal.App.4   143, 154.) At its core,
the purpose of the FEHA complaint is to provide the DFEH the opportunity to resolve
disputes and eliminate unlawful employment practices through conciliation.  Wills,
supra, at p. 156.   In looking at whether the allegations set forth in a DFEH are
sufficient with respect to exhausting administrative remedies for purposes of a judicial
action, the allegations of the administrative complaint and information that might be
obtained from an investigation must be considered. “Because of the similarity between
state and federal employment laws, California courts look to pertinent federal
precedent when applying our on statutes.”  (Guz v. Bechtel National, Inc. (2000) 24
th
Cal.4   317, 354.)   “Administrative charges are to be construed liberally because they
are often drafted by claimants without the assistance of counsel.  Accordingly, it is
sufficient that the EEOC be apprised, in general terms, of the alleged discriminatory  parties and the alleged discriminatory acts.”  (Nazir v. United Airlines, Inc. (2009) 178
th
Cal.App.4   243, 266-267.)  “[A plaintiff] may proceed on claims not explicitly set forth
in a charge of discrimination if the claim is ‘like or reasonably related to the EEOC
charges’ and could reasonably be expected to grow out of an EEOC investigation of
the charge.”  (Id.)  “[T]he ‘scope’ of the judicial complaint is limited to the ‘scope’ of the
EEOC investigation which can reasonably be expected to grow out of the charge of
discrimination.”  (Id. at 267.)  Thus, it has been held that a Plaintiff may pursue claims
not included in his/her DFEH charge that were “like or reasonably related” to the claim
that was made.  (Okoli v Lockheed Technical Operations Co. (1995) 36 Cal.App.4th
1607, 1616.)   “[W]hat is submitted to the DFEH must not only be construed liberally in
favor of the plaintiff, it must be construed in light of what might be uncovered by a
reasonable investigation.”  (Nazir, supra, at 268.)

Under this standard, the Court finds that BAR failed to meet its burden to show that the
third and sixth causes of action are barred for failure to exhaust simply because
Plaintiff purportedly did not explicitly allege claims for failure to accommodate and
failure to prevent racial discrimination.  Indeed, the DFEH complaint specifically
alleges that Plaintiff was subjected to disability and racial discrimination/harassment.
(BAR’s RJN Exh. A.)  He also alleged that he reported the racial harassment and that
no action was taken.  (Id.)  A basis for a failure to prevent claim is the failure of the
employer to take reasonable steps to promptly investigate the discrimination.  (Fair
th
Employment & Housing Com. V. Gemini Aluminum Corp. (2004) 122 Cal.App.4   1004,
1024.)  The DFEH complaint clearly encompasses a claim for failure to prevent racial
discrimination.

In addition, while Plaintiff’s DFEH complaint may not have specifically alleged a failure
to accommodate based on his disability, he did allege he was subjected to disability
discrimination.  BAR has failed to present any evidence other than the DFEH
complaint in support of this portion of the motion and failed to demonstrate that a
reasonable investigation would not have uncovered such a claim.  Further, the Court
concludes that an investigation into such a claim would reasonably include a claim for
failure to accommodate the very disability he alleged formed the basis of his
discrimination claim.  The Court therefore finds that BAR failed to meet its burden to
show that the third and sixth causes of action are barred for failure to exhaust and the
motion for summary adjudication on that basis is denied.  In any event, there are
triable issue of material fact as Plaintiff presented evidence that he provided pre-
complaint questionnaires to the DFEH which stated that BAR did not make reasonable
accommodations for his disability.  (Flores Decl, Exh. B.)  (Nazir, supra, 178 Cal.App.4
th at 269 [finding that information in pre-questionnaire that was not specifically set forth
in DFEH complaint made it “reasonable to assume that a thorough DFEH investigation
would uncover a great many of the particulars”].)

As a result, the motions for summary adjudication as to the first, third, fifth and sixth
causes of action on the basis that they are untimely or otherwise barred for failure to
exhaust administrative remedies is denied.

Workers’ Compensation Exclusivity

BAR’s motion here is entirely confusing.  Apparently it seeks summary adjudication of
Plaintiff’s “damages claim in connection with his March 2008 back injury” on the basis
that such damages are barred by the workers’ compensation rule.  The motion is
denied.  BAR cannot obtain summary adjudication of this claim for damages which  would not dispose of a cause of action.  Despite Plaintiff’s failure to raise this specific
point in opposition, summary adjudication cannot be granted.  Indeed, this is but an
element of damages sought by Plaintiff.  CCP § 437c(f)(1) only permits summary
adjudication of claims for punitive damages, not specific elements of damages, such
as the personal injury damages addressed here.  (Decastro W. Chodorow & Burns v.
th
Superior Court (1996) 47 Cal.App.4   410, 422.)  “Code of Civil Procedure section
437c, subdivision (f)(1), does not permit summary adjudication of a single item of
compensatory damage which does not dispose of an entire cause of action.”  (Id.)  The
motion on this basis is denied

First Cause of Action (Disability Discrimination)

BAR argues that it is entitled to summary adjudication on the basis that the undisputed
evidence shows that Plaintiff cannot establish a prima facie claim for disability
discrimination.

BAR first argues that simply honoring Plaintiff’s doctor’s restrictions regarding
Plaintiff’s ability to drive by keeping him from driving a State vehicle did not constitute
adverse employment action because it did not materially affect the terms, conditions or
privileges of employment.  It argues that it had a legitimate nondiscriminatory reason
for the action because Plaintiff’s physician barred Plaintiff from driving any vehicle
without an overlocking seatbelt mechanism and it had no such vehicles.  It also argues
that Machado told Plaintiff he could resume driving when his doctor lifted the
restriction.  It also argues that the contemplated transfer to the CAR program was not
an adverse action because Plaintiff could not perform the essential functions of his
current position because he could not drive and the CAR was a non-driving position
and was essentially an equivalent job in terms of pay, benefits, etc.

Here, assuming BAR’s evidence was sufficient to meet its initial burden, the Court
concludes there are numerous triable issues of material fact regarding whether Plaintiff
was subjected to adverse employment action.  “An adverse employment action is not
limited to ‘ultimate’ employment acts, such as a specific hiring, firing, demotion, or
failure to promote decision.”  (Akers v. County of San Diego (2002) 95 Cal.App.4th
1441, 1455.)  “[A]lthough an adverse employment action must materially affect the
terms, conditions, or privileges of employment to be actionable, the determination of
whether a particular action or course of conduct rises to the level of actionable conduct
should take into account the unique circumstances of the affected employee as well as
the workplace context of the claim.”  ( Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th
1028, 1052.)  Here, Plaintiff’s evidence shows that being restricted from driving a state
vehicle prevented him from performing essential function of his job, specifically,
performing inspections in the field, meeting with consumers to visually observe vehicle
repair issues, and attending outreach programs which was a source of overtime
opportunities.  (Flores Decl. ¶¶ 35-37.)  Further while BAR argues that keeping him
from driving was simply complying with his doctor’s restrictions which condition would
be lifted when the restriction was lifted, such a restriction (e.g. 100% healed restriction)
by an employer is a per se FEHA violation as “it permits the employer to avoid the
required individualized assessment of the employee’s ability to perform the essential
functions of the job with or without accommodation.”  ( Gelfo v. Lockheed Martin Corp.
th
(2006) 140 Cal.App.4   34, 50, fn.11.)  “Also under the FEHA, as under the ADA, ‘an
employer cannot slavishly defer to a physician’s opinion without first pausing to assess
the objective reasonableness of the physician’s conclusions.”  (Id.)   In addition, Plaintiff presented evidence showing that the transfer to the CAP was also
an adverse action because the CAP position differed from his position in the PR1
position in the Consumer Protection Operations Unit in the Field Office.  “A transfer
can be an adverse employment action when it results in substantial and tangible
harm.”  (McRae v. Department of Corrections & Rehabilitation (2006) 142 Cal.App.4th
377, 393.)  The CAP position required knowledge of vehicle pollution control systems
and the Vehicle Inspection and Maintenance program and Plaintiff would have needed
significant training in order to perform the position.  (Flores Decl. ¶¶ 50-53; Neasham
Decl. ¶ 12, Exh. P.)  Indeed, Plaintiff did not have a smog check technician license and
had failed to obtain automotive emissions certification.  BAR was aware of Plaintiff’s
concerns regarding the training Plaintiff felt he needed and did nothing.  (Flores Depo.
105:15-20, 180:14-25.)  Plaintiff believed the transfer was an attempt to set him up to
fail.  ((Id. 105:22-106:6, 108:24-109:2.)  A transfer to a position in which the employee
has no training or expertise can constitute an adverse action.  (Horsford v. Board of
th
Trustees of California State University (2005) 132 Cal.App.4   359, 374.)  Plaintiff has
thus demonstrated the existence of triable issues of material fact as to whether he was
subjected to an adverse employment action.

BAR next argues that it had legitimate non-discriminatory reasons for restricting him
from driving a state vehicle and considering transferring him to CAP.  Specifically, it
argues that the driving restriction was simply based on his doctor’s restriction and that
the contemplated transfer to CAP was based on the fact that Plaintiff could not perform
the essential functions of his job, namely driving, and Plaintiff’s current position
experienced an increased workload and required workers who could go out in the field.
Again, even if BAR met its burden, Plaintiff has created triable issues of material facts
as he has presented “substantial responsive evidence that the employer’s showing
was untrue or pretextual.”  (Hersant v. California Dept. of Social Services (1997) 57
th
Cal.App.4   997, 1004-1005.)

Indeed, with respect to the driving prohibition, BAR simply relies on the declaration of
Plaintiff’s supervisor Machado who says that he made the decision to restrict Plaintiff’s
driving with Sylvia Ramos in the personnel department in consideration of Plaintiff’s
safety.  (UMF 20)  During her deposition, Ms. Ramos testified that she had no part in
deciding whether to allow Plaintiff to drive.  (Ramos Depo. 16:21-17:23.)  Machado
made no effort to investigate whether there was a vehicle that would comply with
Plaintiff’s driving restrictions from his physician, including discussing whether it would
be possible to purchase a vehicle without an overlocking mechanism.  (104:23-105:5,
106:18-107:2)  Indeed, no one contacted Plaintiff’s physician to discuss the restriction.
(Machado Depo. 99-5-8)  Machado essentially determined on his own, that it was
impossible/unsafe to operate a vehicle without an overlocking seatbelt.  However,
federal safety regulations provide an exemption to allow people with disabilities to
operate motor vehicles, including exemptions for overlocking safety mechanisms.  (49
CFR § 595.2, 595.7, 571.209.)  California state vehicles are frequently modified to
accommodate individuals, including modifications to seatbelt assembly mechanisms.
(Karasinski Decl. ¶¶ 6-9.)  The modification to eliminate an overlocking mechanism
can be done easily, cheaply, and in full compliance with federal regulations.  (Id. ¶¶ 16-
18.)  This evidence sets “forth specific facts demonstrating such weaknesses,
implausibilities, incoherencies, or contradictions in the employer’s proffered legitimate
reasons…that a reasonable fact-finder could rationally find them unworthy of
th
credence.”  (Cucuzza v. City of Santa Clara (2002) 104 Cal.App.4   1031, 1038.)

To the extent that BAR argues that Plaintiff could not perform the essential functions of  his job, and this is far from clear given the deficient notice, there are triable issues of
material fact as to whether Plaintiff could have performed the essential functions of his
position with a reasonable accommodation.  Indeed, BAR argues that Plaintiff’s spine
condition prevented him from driving a vehicle with an overlocking mechanism, from
driving more than one hour a day in 20 minute intervals and BAR could not obtain a
vehicle without overlocking seatbelts.  However, as seen from Plaintiff’s evidence
discussed above, California state vehicles are frequently modified to accommodate
individuals, including modifications to seatbelt assembly mechanisms.  (Karasinski
Decl. ¶¶ 6-9.)  The modification to eliminate an overlocking mechanism can be done
easily, cheaply, and in full compliance with federal regulations.  (Id. ¶¶ 16-18.)

With respect to the transfer to CAP, BAR claims that the decision was made as  a
result of Plaintiff’s inability to drive.  However, the CAP position itself required driving
as a function of the job.  (Neasham Decl. Exh. P.)  Indeed, driving is listed as a
functional requirement of the job.  Further, at the meeting when the CAP transfer was
discussed, in response to Plaintiff’s showing that he could remain in his position with
accommodation, Program Manager Dan Povey said “I’m tired of this bullshit and I’m
not dealing with it anymore…I’m tired of this crap and pandering.”  (Flores Depo. 99:24
-100:4, 109:9-12, 111:10-13, Rojo Depo. 114:10-19.)  The next day at work, being
emotionally “crushed” from the previous day’s meeting, Plaintiff began to feel ill, lost all
strength in his legs and collapsed at work and paramedics were called.  After
becoming aware of the collapse, BAR employee Ms. Wright wrote to other BAR
employees that were at the transfer meeting and stated that “[i]n light of the
11/26/2009 incident involving Al Flores being taken away by ambulance the day after
our meeting…We need to make sure we’re all on the same page and that the basis for
the CAP reassignment is clear.”  (Wright Depo. Exh. 22.)  Povey’s comments alone
are sufficient evidence, but when considered in connection with this email sent after
the meeting at which the CAP reassignment had already been discussed and which
appears to be a post-decision attempt to create a basis to justify the decision,
constitutes “specific facts demonstrating such weaknesses, implausibilities,
incoherencies, or contradictions in the employer’s proffered legitimate reasons…that a
reasonable fact-finder could rationally find them unworthy of credence.”  (Cucuzza,
th
supra, 104 Cal.App.4   at 1038.)

The Court need not consider Plaintiff’s remaining arguments regarding additional
adverse actions.

The motion for summary adjudication as to the first cause of action is denied.

Third Cause of Action (Failure to Accommodate)

BAR moves for summary adjudication on the basis that Plaintiff could not perform the
essential functions of driving a vehicle with an overlocking seatbelt and BAR
reasonably accommodated him.  “[A]n employer is liable under section 12940(m) for
failing to accommodate an employee only if the work environment could have been
modified or adjusted in a manner that would have enabled the employee to perform
the essential functions of the job.”  (Nadaf-Rahrov v. Neiman Marcus Group, Inc.
th
(2008) 166 Cal.App.4   952, 975.)

The motion is denied.  There are numerous questions of fact as to whether Plaintiff
was able to perform the essential functions of his job because Plaintiff’s spine
condition prevented him from driving a vehicle with an overlocking mechanism, from
driving more than one hour a day in 20 minute intervals and BAR could not obtain a
vehicle without overlocking seatbelts.  BAR argues that the transfer to CAP would
have been a reasonable accommodation.  However, as seen from Plaintiff’s evidence
discussed above, California state vehicles are frequently modified to accommodate
individuals, including modifications to seatbelt assembly mechanisms.  (Karasinski
Decl. ¶¶ 6-9.)  The modification to eliminate an overlocking mechanism can be done
easily, cheaply, and in full compliance with federal regulations.  (Id. ¶¶ 16-18.)
Plaintiff’s evidence shows that BAR, however, made no effort to consider a
modification to determine whether Plantiff could be accommodated in his position
before considering to transfer him to CAP.  In addition, as seen above, the CAP
position required training which Plaintiff lacked.  Further, Plaintiff’s evidence shows
that BAR delayed in procuring voice recognition software that he requested pursuant
to his doctor’s request.  Plaintiff requested the software in August 2008 but had yet to
receive it by November 26, 2008, his last day in the office.  BAR admits that the
software had not been purchased by that day but provides no explanation for the
delay.  A lengthy delay in providing an accommodation can constitute a refusal to
provide a reasonable accommodation.  (Auburn Woods I Homeowners Assn. v. Fair
th
Employment & Housing Com. (2004) 1821al.App.4   1578, 1599.)  In addition, BAR
Chief Sherry Mehl ordered Machado to obtain modular furniture in August 2008.  While
Machado submitted a declaration that he put in a request for the furniture with the
Business Office, no purchase order was produced (in contrast to the purchase order
BAR produced for the voice recognition software) and Plaintiff’s evidence shows that
Machado simply attempted to rearrange the existing furniture in Plaintiff’s office and
told him there was no money for the furniture purchase.  (Flores Depo. 78:15-25)

In sum, there are numerous triable issues of material fact regarding whether Plaintiff
could perform the essential functions of his job with a reasonable accommodation.
The motion for summary adjudication as to the third cause of action on this basis is
denied.

Given the above, the Court need not address Plaintiff’s argument that the motion as to
the third cause of action would also have to be denied because BAR failed to address
the theory that BAR failed to engage in the interactive process.

Fifth Cause of Action (Racial Discrimination)

BAR seeks summary adjudication on the basis that Plaintiff cannot establish a prima
facie claim for racial discrimination.  BAR first argues that Plaintiff’s racial
discrimination cause of action fails based solely on a contention that Plaintiff’s
allegations are insufficient.  It reasons that Plaintiff’s allegations are insufficient
because while he alleged that he suffered racial discrimination when his non-
supervisory coworkers made allegedly racial comments in his presence, he did not
allege that any of the individuals who made the comments were the ones who
effectuated any adverse action against him.  However, BAR cites no legal authority to
support the proposition that a racial discrimination claim is insufficient where allegedly
racial comments which might be used to demonstrate discrimination were not made by
the ultimate individuals that completed the alleged adverse action.

BAR next argues that Plaintiff cannot show that the alleged adverse action, specifically
BAR’s temporary change in his vehicle assignment, or his transfer to the Consumer
Assistance Program were either racially motivated and that it had legitimate reasons
for taking such actions.   Plaintiff has demonstrated triable issues of material fact with respect to whether the
temporary change in his vehicle assignment from the 2001 Dodge Durango to a 1999
Ford Taurus in January 2008 constituted an adverse action.  Indeed, the Taurus was
in poor condition and had numerous malfunctioning parts.  (Flores Decl. ¶¶ 23, 25, 26.)
In fact, Plaintiff was injured when the seatbelt assembly on the Taurus malfunctioned.
(Id. ¶ 27.)  By contrast, the Durango provided much more space, greater carrying
capacity and a more comfortable ride.  These features were important with respect to
Plaintiff’s job assignment as he was sometimes required to travel to a remote areas
and spend long hours in a vehicle and the extra space was needed to transport work-
related materials.  (Id. ¶¶ 13, 14.)  As discussed above, “although an adverse
employment action must materially affect the terms, conditions, or privileges of
employment to be actionable, the determination of whether a particular action or
course of conduct rises to the level of actionable conduct should take into account the
unique circumstances of the affected employee as well as the workplace context of the
th
claim.”  (Yanowitz, supra, 36 Cal.4   at 1052.)  Further, the Court already found that
triable issue of fact exist with respect to the transfer to CAP.

In addition, as discussed above in connection with the disability discrimination cause of
action, the Court found triable issues of fact with respect to whether BAR’s stated
reasons for deciding to transfer him the CAP were pretextual.  The Court, therefore
need not, and does not address the issue of whether Plaintiff also showed that the
stated reasons for temporarily changing his vehicle assignment to the Taurus or
prohibiting Plaintiff from driving was prextextual.

The motion for summary adjudication as to the fifth cause of action for racial
discrimination is denied.

Given the above, the Court need not address Plaintiff’s argument that the motion as to
the fifth cause of action would also have to be denied because BAR failed to address
the theory that BAR subjected Plaintiff to a hostile work environment.

Sixth Cause of Action (Failure to Prevent Discrimination and Harassment)

The motion is denied.  BAR simply argues that the Sixth Cause of Action fails because
Plaintiff’s discrimination claims fail and that an employer cannot be liable for a failure to
prevent where discrimination/harassment did not occur in the first instance.  (Trujillo v.
th
North County Transit Dist. (1998) 63 Cal.App.4   280, 289.)  However, because the
motion was denied with respect to the discrimination claims, the instant motion is
denied for the same reasons discussed above.

Having failed to obtain summary adjudication on all causes of action asserted against
it in the complaint, BAR’s motion for summary judgment is denied.

Plaintiff’s evidentiary objections are overruled.

BAR’s evidentiary objections are overruled.

Plaintiff’s counsel shall prepare for the Court’s signature and order pursuant to CCP §
437c(g) and CRC Rule 3.1312.