Case Number: BC645571 Hearing Date: March 06, 2018 Dept: 47

Tentative Ruling

Judge Randolph M. Hammock, Department 47

HEARING DATE: March 6, 2018 TRIAL DATE: June 25, 2018

CASE: Frank Hernandez v. Utility Tree Service, Inc.

MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION

MOVING PARTY: Defendant Utility Tree Service, Inc.

RESPONDING PARTY(S): Plaintiff Frank Hernandez

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiff alleges that he suffered an injury at work, but he was denied the medical treatment he needed and was placed in unfavorable positions due to his disability and need for accommodations. Almost a year after he suffered his injury, Plaintiff was terminated.

Defendant moves for summary judgment or, in the alternative, summary adjudication.

TENTATIVE RULING:

Defendant Utility Tree Service, Inc.’s motion for summary judgment is DENIED.

Defendant’s alternative motion for summary adjudication is DENIED as to Issues Nos. 1 – 7 regarding the first through seventh causes of action.

DISCUSSION:

Plaintiff’s Evidentiary Objections

No. 1: OVERRULED. Simply incorporating all objections made during the depositions without specifying the deposition testimony is unworkable.

Defendant’s Evidentiary Objections

Pursuant to CCP § 437c(q), the Court only rules upon those evidentiary objections asserted against evidence which the Court deems to be material to the disposition of this motion.

Declaration of Frank Hernandez

No. 6: OVERRULED. Sufficient foundation; permissible lay opinion.

No. 10: OVERRULED. Sufficient foundation; relevant; hearsay exception as to Plaintiff asking to be accommodated in his position with the use of a bucket.

n. 2 A well-established exception or departure from the hearsay rule applies to cases in which the very fact in controversy is whether certain things were said and not whether these things were true or false, and in these cases the words are admissible not as hearsay, but as original evidence. ( Weathers v. Kaiser Foundation Hospitals (1971) 5 Cal.3d 98, 109 [95 Cal.Rptr. 516, 485 P.2d 1132].) Thus, written or oral utterances, which are acts in themselves constituting legal results in issue in the case, do not come under the hearsay rule. ( Bank of America v. Taliaferro (1956) 144 Cal.App.2d 578, 581-582 [301 P.2d 393].)

Zuckerman v. Pac. Sav. Bank (1986) 187 Cal.App.3d 1394, 1404 n. 2.

Does not contradict deposition testimony. The more modern view is to exclude a declaration in opposition to a summary judgment motion where it directly contradicts a prior admission by a party:

Lodge Log relies on D’Amico and its progeny to assert that Scalf’s testimony that he found “nothing wrong” with the log kit, that it was complete when he examined it, and that he had “no criticisms” of Lodge Log’s conduct were unequivocal admissions, exonerating it from all wrongdoing in the case. This is a misreading of D’Amico.

In D’Amico, the California Supreme Court declared that “[w]here a plaintiff’s admissions in a deposition contradict statements in the plaintiff’s affidavits opposing the summary judgment, ‘the rule of liberal construction loses its efficacy and the granting or denial of the motion for summary judgment depends upon the issues of credibility. Accordingly, when a defendant can establish his defense with the plaintiff’s admissions sufficient to pass the strict construction test imposed on the moving party … , the credibility of the admissions are valued so highly that the controverting affidavits may be disregarded as irrelevant, inadmissible or evasive.’ ” (Niederer v. Ferreira (1987) 189 Cal. App. 3d 1485, 1503 [234 Cal. Rptr. 779] (Niederer), quoting Leasman v. Beech Aircraft Corp. (1975) 48 Cal. App. 3d 376, 382 [121 Cal. Rptr. 768], italics added, and citing D’Amico, supra, 11 Cal.3d at pp. 21–22.)

Properly applied, D’Amico is limited to instances where “credible [discovery] admissions … [are] contradicted only by self-serving declarations of a party.” (Price, supra, 213 Cal. App. 3d at p. 482, italics added; see, e.g., [*1522] Benavidez v. San Jose Police Dept. (1999) 71 Cal.App.4th 853, 859 [84 Cal. Rptr. 2d 157].) In a nutshell, the rule bars a party opposing summary judgment from filing a declaration that purports to impeach his or her own prior sworn testimony.

Lodge Log theorizes that, had Scalf provided similar responses to requests for admissions, there would be no question that the answers would be dispositive as to Lodge Log’s liability. The argument founders because it fails to grasp that all admissions elicited in the course of discovery are not created equal.

There is a vast difference between written discovery admissions, which are “‘a studied response, made under sanctions against easy denials,’ that occur ‘under the direction and supervision of counsel, who has full professional realization of their significance’” (1 Hogan & Weber, Cal. Civil Discovery (1997) § 9.20, p. 508) and glib, easily misunderstood answers given by a lay opponent in a deposition.

Because our courts have been sensitive to this difference, the D’Amico rule has not been accorded as broad an application as the related principle of “judicial admission,” which gives conclusive effect to the truth of the matter admitted. (Prilliman v. United Air Lines, Inc. (1997) 53 Cal.App.4th 935, 961 [62 Cal. Rptr. 2d 142] (Prilliman).) For summary judgment purposes, deposition answers are simply evidence. Subject to the self-impeachment limitations of D’Amico, they are considered and weighed in conjunction with other evidence. They do not constitute incontrovertible judicial admissions as do, for example, concessions in a pleading (Prilliman, at pp. 961–962; Kirby v. Albert D. Seeno Construction Co. (1992) 11 Cal.App.4th 1059, 1066 [14 Cal. Rptr. 2d 604] & fn. 4 (Kirby)), or answers to requests for admissions, which are specially designed to pare down disputed issues in a lawsuit. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2003) ¶ 8:1388, pp. 8G-31 to 8G-32.)

D’Amico has never stood for the proposition that highly inculpatory testimony elicited from a party in a deposition may be sufficient by itself to warrant summary judgment, or that it relieves the moving party of its [*1523] ordinary burden of showing the absence of a genuine factual dispute. On the contrary, the cases are clear that summary judgment should not be granted on the basis of “tacit admissions or fragmentary and equivocal concessions.” (Price, supra, 213 Cal. App. 3d at p. 482; see Wright v. Stang Manufacturing Co. (1997) 54 Cal.App.4th 1218, 1224–1225, fn. 2 [63 Cal. Rptr. 2d 422]; see, e.g., Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1110–1111 [252 Cal. Rptr. 122] [D’Amico rule held not applicable where plaintiffs testified in deposition that they joined a cult because it “satisfied [their] ‘personal concerns and anxieties,’” yet their experts filed declarations opposing summary judgment, opining that plaintiffs were brainwashed]; Niederer, supra, 189 Cal. App. 3d at p. 1503 [apparent contradiction between plaintiff’s declaration and her deposition testimony may be explained by her supplemental declaration and other evidence].)

. . .

. . . [*1524] . . .

The trial court refused to consider any of this evidence on the ground that it was “contrary” to Scalf’s “conclusive judicial admissions.” This reading of D’Amico is clearly wrong.

“The purpose of the summary judgment procedure is not to try the issues but merely to discover … whether the parties possess evidence which demands the analysis of trial.” (Colvin v. City of Gardena (1992) 11 Cal.App.4th 1270, 1275 [15 Cal. Rptr. 2d 234], italics added.)

While the D’Amico rule permits a trial court to disregard declarations by a party which contradict his or her own discovery responses (absent a reasonable [*1525] explanation for the discrepancy), it does not countenance ignoring other credible evidence that contradicts or explains that party’s answers or otherwise demonstrates there are genuine issues of factual dispute. (See People ex rel. Dept. of Transportation v. Ad Way Signs, Inc. (1993) 14 Cal.App.4th 187, 200 [“admission” that permit was cancelled was elicited in response to a compound request and was contradicted by other evidence]; Kirby, supra, 11 Cal.App.4th at pp. 1066–1067 [summary judgment improper where ambiguous “concession” in unverified complaint was contradicted by credible explanation in deposition]; Mason v. Marriage & Family Center (1991) 228 Cal. App. 3d 537, 546 [279 Cal. Rptr. 51] [review of entire record indicated plaintiff’s answer to interrogatory was an honest mistake]; cf. Wegner et al., Cal. Practice Guide: Civil Trials and Evidence (The Rutter Group 2004) ¶ 8:1245, p. 8D-63 [at trial, party’s deposition answers do not constitute conclusive judicial admissions and may be contradicted by other evidence].)

We acknowledge that a careless exclamatory remark in an outdated version of Weil and Brown’s treatise on civil procedure before trial may have led some to conclude that a party opposing summary judgment may be barred from offering any evidence that contradicts or explains his or her deposition answers. (See Price, supra, 213 Cal. App. 3d at p. 482.) However, that infamous comment has since been deleted from the publication (see Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2004) ¶ 10:156, pp. 10-55 to 10-56), and more recent cases have warned that such an uncritical application of the D’Amico rule “ ‘can lead to anomalous results, inconsistent with the general principles of summary judgment law.’ ” (Scheiding, supra, 69 Cal.App.4th at pp. 77–78, quoting Price, supra, 213 Cal. App. 3d at p. 482.)

We conclude the trial court abused its discretion in declining to consider evidence in opposition to the motion for summary judgment in conflict with Scalf’s deposition statements or evidence which otherwise disclosed the presence of triable issues of fact regarding Lodge Log’s liability to the Yarbroughs. And because the summary judgment motion was based upon Lodge Log’s total lack of fault in the design and manufacture of the home, it should not have been granted.

Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1521-25 (bold emphasis and underlining added).

Here, Plaintiff testified that he did not recall whether he talked to anybody at Utility Tree after the injury about things he needed in order to be able to do his job. Def’s Exh. 2, Hernandez Depo., Page 81:22-25. The fact that Plaintiff indicates in his declaration that he requested an accommodation to perform the Climber position with the use of a bucket does not contradict Plaintiff’s deposition testimony that he did not recall such request. Moreover, Plaintiff testified that he was unable to do the job as a Climber because he couldn’t climb with one leg. Id. at Page 88:4-19. This is consistent with Plaintiff’s declaration the he could do the job with a bucket that would negate the need for him to climb.

No. 13: OVERRULED. Relevant; not hearsay as to non-statements; hearsay exception as to what Human Resources told Plaintiff—authorized admission by party opponent.

Motion For Summary Judgment

For the reasons discussed below, Defendant has not demonstrated that it is entitled to judgment as to all causes of action asserted in the Complaint. Accordingly, the motion for summary judgment is DENIED.

The Court will proceed to address the alternative motion for summary adjudication.

Motion For Summary Adjudication

1. Issue No. 1: “Plaintiff cannot sustain the First Cause of Action for Disability Discrimination because he cannot perform the essential functions of an available position and because he was not subject to any adverse employment action taken with discriminatory intent.”

FEHA makes it an unlawful employment practice to discharge a person from employment or discriminate against the person in the terms, conditions, or privileges of employment because of physical or mental disability or medical condition. (§ 12940, subd. (a).) FEHA, however, “does [*232] not prohibit an employer from … discharging an employee with a physical or mental disability, … where the employee, because of his or her physical or mental disability, is unable to perform his or her essential duties even with reasonable accommodations … .” (§ 12940, subd. (a)(1).)

Moore v. Regents of University of California (2016) 248 Cal.App.4th 216, 231-32 (bold emphasis added).

Here, even assuming the truth of the admissible evidence cited by Defendant in its separate statement, Plaintiff has presented evidence sufficient to raise a triable issue of material fact.

As to Defendant’s contention that Plaintiff cannot perform the essential functions of an available position, Plaintiff has presented evidence that even with his work restriction, he could have worked as a Climber by using a bucket which places the Climber next to the tree so that the Climber can trim the tree without having to physically trim. Pltf’s Additional Fact (“AF”) No. 93; Declaration of Frank Hernandez, ¶ 10. This is sufficient to raise a triable issue of material fact as to whether Plaintiff could not perform the essential functions of an available position. Whether or not the bucket would have accommodated Plaintiff’s work restrictions without presenting undue hardship[1] upon Defendant is a question of fact.

As to Defendant’s content that Plaintiff was not subject to any adverse employment action taken with discriminatory intent, Plaintiff has presented evidence that Defendant terminated Plaintiff because Defendant was informed that Plaintiff had been deemed permanent and stationary. AF No. 121; Stall Depo. at 38:18-39:2 (“The reason the assignment at the church finished is because he was deemed permanent and stationary in July of 2015 . . . the company wasn’t aware that he was deemed permanent and stationary until September of 2015.”); 40:18-41:1 (testifying that once Defendant was informed that Plaintiff was deemed permanent and stationary[2] in September 2015, that is when Defendant said the assignment at the church is closed and that work assignment ended). Defendant terminated Plaintiff’s employment without trying to reach out to Plaintiff. AF Nos. 125, 126; Hernandez Decl., ¶ 19; Stall Depo. at 18:2-22; 19:6-19; 31:14-25; 32:12-23; 33:4-11; 45:9-16. The foregoing evidence is sufficient to raise a triable issue of material fact as to whether Defendant terminated Plaintiff’s assignment at the church and thereafter cut off communications within him, resulting in termination of Plaintiff’s employment with Defendant.

Accordingly, the motion for summary adjudication as to Issue No. 1 re: the first cause of action is DENIED.

2. Issue No. 2: “Plaintiff cannot sustain the Second Cause of Action for Retaliation under the FEHA because the retaliation he alleges is not related to a protected activity.”

The only material fact Defendant presents in the moving separate statement is UF No. 14 which is that “Plaintiff testified that he believes [Defendant] retaliated against him for serving as a union steward and for no other reason.” Hernandez Depo. at 73:15-74:8. However, Defendant ignores its own evidence whereby Plaintiff later testified at his deposition that he believes he was terminated because he had a disability. Hernandez Depo. at 89:6-10. Thus, to the extent Defendant intended to meet its burden by demonstrating that Plaintiff did not even believe he was terminated due to his disability, Defendant falls short in this regard.

The motion for summary adjudication as to Issue No. 2 re: the second cause of action is DENIED.

3. Issue No. 3: “Plaintiff cannot sustain the Third Cause of Action for Failure to Accommodate a Disability because Plaintiff did not request a reasonable accommodation and UTS is under no obligation to create an entirely new position for Plaintiff.”

Here, even assuming the truth of the admissible evidence cited by Defendant in its separate statement, Plaintiff has presented evidence sufficient to raise a triable issue of material fact.

As to Defendant’s contention that Plaintiff did not request a reasonable accommodation, Plaintiff indicates that on approximately three occasions he asked regional manager Isidro Castaneda to be put back in his position with the accommodation of using a bucket, but was told he was not allowed to go in the field. AF No. 98; Hernandez Decl., ¶ 14. This is sufficient to raise a triable issue of material fact as to whether Plaintiff requested a reasonable accommodation as to the Climber position to which he was assigned when he was injured.

As to Defendant’s contention that Defendant was under no obligation to create an entirely new position for Plaintiff, as noted, Plaintiff has presented evidence that he requested the accommodation of a bucket to perform the Climber position to which he was assigned when he was injured. This would not be the creation of an entirely new position.

The motion for summary adjudication as to issue No. 3 re: the third cause of action is DENIED.

4. Issue No. 4: “Plaintiff cannot sustain the Fourth Cause of Action for Failure to Engage in the Interactive Process because Plaintiff did not request a reasonable accommodation and UTS is under no obligation to create an entirely new position for Plaintiff.”

Under section 12940, subdivision (n), it is an unlawful employment practice “[f]or an employer … to fail to engage in a timely, good faith, interactive process with the employee or applicant to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee or applicant with a known physical … disability. …” The statute provides an independent basis for liability. ( Claudio v. Regents of University of California, supra, 134 Cal.App.4th at p. 243.) Nonetheless, an employer’s duty to accommodate is inextricably linked to its obligation to engage in a timely, good faith discussion with an applicant or employee whom it knows is disabled, and who has requested an accommodation, to determine the extent of the individual’s limitations, before an individual may be deemed unable to work.

. . .

As the court stated in Jensen, in words equally apt here, “ ‘[t]he interactive process is at the heart of the [FEHA’s] process and essential to accomplishing its goals. It is the primary vehicle for identifying and achieving effective adjustments which allow disabled employees to continue working without placing an “undue burden” on employers.’ ” (Jensen, supra, 85 Cal.App.4th at pp. 261–262.) “In a practical sense,” as another court observed in the ADA context, “the interactive process is more of a labor tool than a legal tool, and is a prophylactic means to guard against capable employees losing their jobs even if they are not actually disabled. It is clearly a mechanism to allow for early intervention by an employer, outside of the legal forum, for exploring [*62] reasonable accommodations for employees who are perceived to be disabled. …” (Jacques, supra, 200 F. Supp. 2d at p. 170.) Realistically, when an employer is aware of an employee’s disability, the employer’s interest is not in assessing whether the individual’s impairment may legally be considered an “actual disability.” n22 Rather, “[t]he focus of the interactive process centers on employee-employer relationships so that capable employees can remain employed if their medical problems can be accommodated, rather than sounding a clarion call to legal troops to opine on whether the employee’s impairment is an actual disability within the legal nuances of the [statute].” ( Id. at p. 169.)

FOOTNOTES

n22 Typically, an applicant or employee triggers the employer’s obligation to participate in the interactive process by requesting an accommodation. (§ 12940, subd. (n).) Although it is the employee’s burden to initiate the process, no magic words are necessary, and the obligation arises once the employer becomes aware of the need to consider an accommodation. Each party must participate in good faith, undertake reasonable efforts to communicate its concerns, and make available to the other information which is available, or more accessible, to one party. Liability hinges on the objective circumstances surrounding the parties’ breakdown in communication, and responsibility for the breakdown lies with the party who fails to participate in good faith. (See Jensen, supra, 85 Cal.App.4th at p. 266; see also Allen v. Pacific Bell (9th Cir. 2003) 348 F.3d 1113, 1115 [ADA].)

Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34, 61-62 (bold emphasis and underlining added).

As discussed above re: Issue No. 3, a triable issue of material fact exists as to whether Plaintiff requested a reasonable accommodation of use of a bucket to perform his duties as a Climber, which is the position he held at the time of his injury. This would not require the creation of a new position. Moreover, as discussed above re: Issue No.1, there is a triable issue of material fact as to whether Defendant terminated Plaintiff’s assignment at the church and thereafter cut off communications within him, resulting in termination of Plaintiff’s employment with Defendant.

The motion for summary adjudication as to Issue No. 4 re: the fourth cause of action is DENIED.

5. Issue No. 5: “Plaintiff cannot sustain the Fifth Cause of Action for Failure to Prevent Discrimination and Harassment because he cannot establish a prima facie case of discrimination or that UTS’s policies were insufficient.”

“An employer is required to ‘take all reasonable steps to prevent harassment from occurring,’ and the failure to do so is itself unlawful. (§ 12940, subds. (j)(1), (k).)” Rehmani v. Superior Court (2012) 204 Cal.App.4th 945, 952. “The employer’s duty to prevent harassment and discrimination is affirmative and mandatory.” Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 288.

As discussed above re: Issue No. 1 a triable issue of material fact exists as to whether Plaintiff suffered disability discrimination in the form of termination.

As to Defendant’s contention that it had company policies in place to prevent discrimination that were provided to Plaintiff via an employee handbook (UF No. 52; Lee Decl., Exh. A at 2-12) is insufficient to demonstrate that, as a matter of law, Defendant took “all reasonable steps” to prevent discrimination, i.e., termination of Plaintiff’s employment, from occurring. Whether Defendant took all reasonable steps is a triable issue of material fact for the jury to decide.

The motion for summary adjudication as to Issue No. 5 re: the fifth cause of action is DENIED.

6. Issue No. 6: “Plaintiff cannot sustain the Sixth Cause of Action for Wrongful Termination in Violation of Public Policy because it is entirely duplicative of his failed FEHA claims.”

To establish a claim for wrongful discharge in violation of public policy, a plaintiff must plead and prove (1) a termination or other adverse employment action; (2) the termination or other action was a violation of a fundamental public policy, as expressed in a constitutional, statutory, or regulatory provision; and (3) a nexus between the adverse action and the employee’s protected status or activity. (Yanowitz, supra, 36 Cal.4th at p. 1042.) FEHA’s policy prohibiting disability discrimination in employment is sufficiently substantial and fundamental to support a claim for wrongful termination in violation of public policy. (City of Moorpark v. Superior Court (1998) 18 Cal.4th 1143, 1159–1161 [77 Cal. Rptr. 2d 445, 959 P.2d 752]; see § 12920 [“It is hereby declared as the public policy of this state that it is necessary to protect and safeguard the right and opportunity of all persons to seek, obtain, and hold employment without discrimination or abridgment on account of … physical disability [or] mental disability … .”]; Flannery v. Prentice (2001) 26 Cal.4th 572, 582–583 [110 Cal. Rptr. 2d 809, 28 P.3d 860] [“The basic, underlying purpose of FEHA is to safeguard the right of Californians to seek, obtain, and hold employment without experiencing discrimination on account of … disability … .”].)

For the reasons the trial court erred in sustaining the demurrer to the associational disability discrimination claim, it also erred in sustaining the demurrer to this claim.

Rope v. Auto-Chlor System of Washington, Inc. (2013) 220 Cal.App.4th 635, 660, superseded by statute on other grounds, as stated in Cornell v. Berkeley Tennis Club (2017) 18 Cal.App.5th 908, 942-43.

For the reasons set forth above re: Issue No. 1, Defendant has not demonstrated that Plaintiff’s FEHA claim fails. As such, the sixth cause of action for wrongful termination in violation of public policy based on FEHA similarly does not fail.

The motion for summary adjudication as to Issue No. 6 re: the sixth cause of action is DENIED.

7. Issue No. 7: “Plaintiff cannot sustain the Seventh Cause of Action for Declaratory Relief because it is duplicative of his other failed claims and he lacks standing.”

Defendant’s argument that this cause of action fails as Plaintiff’s other claims fail is not persuasive for the reasons discussed above.

Defendant’s argument that Plaintiff lacks standing to assert a declaratory relief cause of action is similarly not persuasive:

[P]roof that an adverse employment decision was substantially motivated by discrimination may warrant a judicial declaration of employer wrongdoing. Declaratory relief, where appropriate, may serve to reaffirm the plaintiff’s equal standing among her coworkers and community, and to condemn discriminatory employment policies or practices. (See Code Civ. Proc., § 1060 [a court may make a binding declaration of contested rights and duties].)

Second, upon a finding of unlawful discrimination, a court may grant injunctive relief where appropriate to stop discriminatory practices. (See Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 131 [87 Cal. Rptr. 2d 132, 980 P.2d 846] [courts may grant injunctive relief under the FEHA to prevent discriminatory conduct from recurring]; cf. EEOC v. Ilona of Hungary (7th Cir. 1997) 108 F.3d 1569, 1579 [finding unlawful discrimination on the basis of religion under Tit. VII and upholding injunctive relief “where the individuals who were found to have discriminated remain the defendant’s primary decision-makers”].)

Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 234.

This is the relief sought in ¶¶ 82 – 84 of the Complaint.

As such, the motion for summary adjudication as to Issue No. 7 re: the seventh cause of action is DENIED.

Plaintiff to give notice, unless waived.

IT IS SO ORDERED.

Dated: March 6, 2018 ___________________________________

Randolph M. Hammock

Judge of the Superior Court

[1] “An employer is not required to make an accommodation ‘that is demonstrated by the employer or other covered entity to produce undue hardship … to its operation.’ ” Moore v. Regents of University of California (2016) 248 Cal.App.4th 216, 232.

[2] According to Plaintiff’s opposition “[p]ermanent and stationary is a workers’ compensation term which solely means that the workers’ compensation doctor determine the patient’s status was at a point where it was not going to change.” Opposition at Pages 9:38-10:2.