Case Number: BC699415 Hearing Date: December 17, 2019 Dept: 40

MOVING PARTY: Defendant Canoga Hotel Corporation

OPPOSITION: Plaintiff Jose Diaz

On October 2, 2019 (after a September 19, 2019 hearing), the Court granted, in part, and denied, in part, defendant’s motion for summary judgment.

The Court denied summary adjudication of Plaintiff’s First through Third causes of action for disability discrimination, failure to provide reasonable accommodation, and failure to engage in interactive process.

The Court granted summary adjudication of Plaintiff’s Fourth through Sixth causes of action for retaliation, failure to prevent discrimination and retaliation, and wrongful termination in violation of public policy. The Court also dismissed Plaintiff’s claims for emotional distress damages and punitive damages.

On October 18, 2019, Plaintiff filed an ex parte motion for reconsideration on the ground that the Court’s rulings appeared to be inconsistent. Plaintiff was ordered to utilize the Court’s reservation system to set a formal hearing date. As a result of the ex parte, the Court sui sponte reviewed its October 2 order, determined that inconsistencies did indeed exist, then prepared–but did not file—today’s ruling.

Again, plaintiff is correct that the October 2 ruling was inconsistent. Unfortunately, it did not accurately reflect the Court’s position post-hearing.

The Court now provides an updated version of its ruling in this motion.

Canoga’s motion for summary judgment is DENIED.

Canoga’s motion for summary adjudication is GRANTED as to Plaintiff’s punitive damages claim only.

Standard: A court may reconsider a prior ruling if the party affected provides notice of “new or different facts, circumstances, or law.” Cal. Code of Civ. Proc. §1008(a). When a trial court enters judgment, it loses jurisdiction to consider a motion for reconsideration. Safeco Ins. Co. v. Architectural Facades Unlimited, Inc. (2005) 134 Cal.App.4th 1477, 1482.

Plaintiff Jose Diaz sues his former employer Defendant Canoga Hotel Corporation dba Hilton Hotel Woodland Hills (“Canoga”). Diaz was employed by Canoga from January 2016 until October 2017, as a Houseman/Houseman, whose duties involved housekeeping and some janitorial-related work at the hotel.

In June 2016, Diaz suffered a workplace injury when an elevator he was in crashed. He was

placed of limited duty, then, one month later in July, he suffered another workplace accident,

which caused his physician to issue him temporary work restrictions which included limited

lifting, pulling and push only up to ten pounds.

From July 2016 to July 2017, Diaz continued to work for Canoga under a temporary restriction

until he was placed on leave. The parties dispute the precise nature of the work Diaz performed

during this time.

In August 2017, Diaz’s physician issued him a Permanent work restriction which prevented him

from lifting more than ten pounds, from bending his lower back, and significantly, from

repetitive neck bending.

In October 2017, was Diaz terminated when his leave expired. Diaz filed a first amended complaint against Canoga alleging:

1) Disability Discrimination and Perceived Discrimination in Violation of FEHA;

2) Failure to Provide Reasonable Accommodations in Violation of FEHA;

3) Failure to Engage in the Interactive Process in Violation of FEHA;

4) Retaliation in Violation of FEHA;

5) Failure to Take All Reasonable Steps to Prevent Discrimination and Retaliation;

6) Wrongful Termination in Violation of Public Policy.

Evidentiary Objections: Diaz objects to statements contained in the March 2019 Declarations of Jenny Ortega and Maribel Preciado: Objections 6 to 14 (there is no 7) are OVERRULED, all others SUSTAINED.

Diaz also objects to Canoga’s request for Judicial Notice of the transcript of Diaz’s Workers’

Compensation Deposition, Diaz’s medical records, Diaz’s Compromise and Release, and the

Order Approving Compromise and Release. The Court agrees with Diaz that it can take judicial

notice of the existence of the documents but not the contents therein. The Court cannot accept as

true the contents of pleadings or exhibits in another action just because they are part of a court

record or file. Such documents are inadmissible hearsay. The Objection is SUSTAINED and

defendant’s request for Judicial Notice is DENIED.

Canoga’s objections to Diaz’s September 4, 2019 Declaration are all OVERRULED.

First Cause of Action: Disability Discrimination Claim-DENIED

A prima facie case of disability discrimination under FEHA requires a showing that the plaintiff

(1) suffered from a medical condition or physical disability, (2) was able to perform the essential

functions of his job, with or without reasonable accommodation, and (3) was subjected to

adverse employment action because of the disability—that is, the disability was a substantial

factor motivating the employer’s adverse action. Castro-Ramirez v. Dependable Highway

Express, Inc. (2016) 2 Cal.App.5th 1028, 1037. Once the plaintiff establishes a prima facie case,

“the burden then shifts to the employer to offer a legitimate, nondiscriminatory reason for the

adverse employment action.” Deschene v. Pinole Point Steel Co. (1999) 76 Cal.App.4th 33, 44.

The plaintiff may then show the employer’s proffered reason is pre-textual or offer any further

evidence of discriminatory motive. (Castro-Ramirez, supra, 2 Cal.App.5th at p. 1037.) “‘In an

appropriate case, evidence of dishonest reasons, considered together with the elements of the

prima facie case, may permit a finding of prohibited bias.’” (Ibid.)

The Court finds that Diaz can establish that he was able to perform the essential functions of 1) the Houseman position. The essential “physical” functions of the Houseman position are (2) linen to laundry; (4) Collecting trash and recycling from guest room attendant’s carts and

disposing of it properly; and (5) Delivering all extra supplies to linen closets; (6) Vacuum

hallways, dust hallway pictures, tables, etc.; (7) Sweep and mop stairwells and service elevator

landings; (8) Sweep and mop vending machine areas and keeps machines clean; (10) Collect

dirty glasses and mugs and take to housekeeping for cleaning and (12) Flips mattresses quarterly.

(As numbered in Exh. C of Preciado Decl. & UMF No. 4.) The physical requirements for the

position involve: Crouching, Stooping, Twisting/Turning at Knees, Waist, and Neck,

Pushing/pulling and Lifting more than 10 pounds. (UMF No. 5.)

Diaz argues that he was able to perform the essential duties of the houseman position despite the

work restrictions imposed by his injury. It appears that even though his physician issued the July

2016 temporary work restrictions limiting lifting, pulling and pushing, no items heavier that ten

pounds, frequent change of position as tolerated, sit or stand as needed for comfort, limited

overhead work, limited stooping, bending, limited kneeling or squatting (UMF No. 12.), Diaz

continued to perform his Houseman duties from approximately July 2016 to July 2017. Diaz

states that during this period he was not granted any formal accommodation by Canoga. Instead,

Diaz contends that the only adjustment was that he performed his Houseman duties, he did so

at a slower pace.

In August 2017, Diaz’s physician gave him new Permanent work restrictions. These work

restrictions included no lifting over ten pounds, no repetitive bending of low back, and no

repetitive neck bending. (UMF No. 33.) Diaz argues that these restrictions were essentially the

same as the previous restrictions and that he would still have been able to continue working as a

Houseman as he had been doing from July 2016 to July 2017.

Canoga states that from July 2016 to June 2017, Diaz did not work as a Houseman. Instead

Canoga contends that after Diaz’s injury, he was placed into a “transitional work program” in

which he was given odd jobs to do in the hotel. These modified duties included polishing

silverware, dusting picture frames and lamps around the guest room corridors, vacuuming

furniture, preparing amenities, helping with recycling, folding towels, and answering guest

request calls. (Ortega Depo., Pg. 44, lns 24-45.)

Diaz disagrees, stating that he was not placed into and had never heard of a transitional work

program, and that the so-called “odd jobs” referred to were duties he performed as a

Houseman. (Diaz Decl., ¶¶ 14-15.)

Diaz’s declaration is slightly contradicted by his deposition testimony. Generally, an opposing

party may be bound by admissions made in deposition testimony “when discovery has produced

an admission or concession on the part of the party opposing summary judgment which

demonstrates that there is no factual issue to be tried . . .,’ controverting affidavits submitted . . .

may be disregarded.” D’Amico v. Board of Med. Examiners (1974) 11 Cal.3d 1, 21; see

Benavidez v. San Jose Police Dept. (1999) 71 Cal.App.4th 853, 860 [holding that a “party cannot

create an issue of fact by a declaration which contradicts his prior [discovery responses]”].

At his deposition Diaz admitted that when he returned to his Houseman role in April of 2017

(Diaz Depo., p. 122, 10-24), he was assigned to the hotel’s restaurant to perform restaurant other

duties, some of which he had not done before his injury. (Diaz Depo. p. 110, lns 4-15.)

Diaz cannot create an issue of fact by declaring that in 2016-2017 he was working as a

Houseman doing the same duties he had always done when he has previously declared that the

restaurant assignment had never been part of his pre-injury Houseman job. But, this

contradiction is of minor meaning. Diaz may have not been performing all the essential functions

of a Houseman between July 2016 and July 2017, but the “light duty” (add-on) tasks were no

different to his Houseman duties: this add-on, odd job or light duty task—helping in the

restaurant–appear to be meaningless. For example, Housekeeping Houseman ESSENTIAL

JOB DUTIES AND RESPONSIBILITIES number “(21) Follow supervisor’s instructions and

perform other duties as directed or assigned.” (Exh. C., p. 2, of Preciado Decl.)

Moreover, Diaz has met his burden in establishing that he could have performed the essential

physical functions of the position with a reasonable accommodation.

Diaz states that he could have performed the essential functions of the position if he worked at a

slower pace. As a Houseman, Diaz had to push around a cart that was often loaded with linens,

towels, trash, and recyclables. Diaz could not lift more than ten pounds and these carts would

often weigh more than that. Diaz alleges that he asked Ortega to let him do this task with a

lighter load. (UMF No. 95.) These accommodations would have satisfied Diaz’s lifting restriction.

Canoga’s motion for summary judgment is DENIED.

Second Cause of Action: Failure to Provide Reasonable Accommodation-DENIED

“In addition to setting forth a general prohibition against unlawful employment discrimination

based on disability, FEHA provides an independent cause of action for an employer’s failure to provide a reasonable accommodation for an . . . employee’s known disability.” Moore v. Regents

of University of California (2016) 248 Cal.App.4th 216, 241. It is an unfair employment practice

for an employer “to fail to make reasonable accommodation for the known physical or mental

disability of an applicant or employee.” (Gov. Code, § 12940, subd. (m)(1).) “The elements of a

reasonable accommodation cause of action are (1) the employee suffered a disability, (2) the

employee could perform the essential functions of the job with reasonable accommodation, and

(3) the employer failed to reasonably accommodate the employee’s disability.” Nealy, supra, 234

Cal.App.4th at p. 373.

Canoga disputes that Diaz ever requested a reasonable accommodation. Diaz refutes this and

states that at various times he asked to work at a slower pace and to carry a lighter load of linens and towels. Diaz argues that he was able to perform the essential job duties of a Houseman for over a year with these accommodations. The parties dispute whether Diaz was performing the same duties as a Houseman during the year in question. Therefore, there is a triable issue of material fact as to whether Diaz ever requested a reasonable accommodation and whether he was performing the essential duties of his position.

Canoga’s motion for summary judgment is DENIED.

Third Cause of Action: Failure to Engage in the Interactive Process-DENIED

An employer with knowledge of an employee’s physical disability has a separate statutory duty

to engage in a timely, good faith interactive process to determine whether a reasonable

accommodation would enable the employee to perform the essential functions of the job. (Gov.

Code, § 12940, subd. (n).) To be entitled to proceed with a lawsuit based on an employer’s

“‘failure to engage in the interactive process, an employee must identify a reasonable

accommodation that would have been available at the time the interactive process should have

occurred.”’ Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1018. The

employee need not identify all possible accommodations while still employed; but once litigation

has ensued, “‘the employee must be able to identify an available accommodation the interactive

process should have produced.”’ (Ibid.)

The Court finds that there is a triable issue of material fact as to whether Canoga engaged in an

interactive process with Diaz. Canoga argues that it did engage in an interactive process with

Diaz, by providing him an accommodation for over a year and that Ortega, Diaz’s supervisor,

communicated with him daily about his status.

The July 2017 Temporary Work Restriction became Permanent on August 25, 2017, a date when

Diaz was on leave (Family and Medical Leave Act-FMLA leave). The work restrictions became permanent when Diaz was not working under any restriction—Temporary or Permanent—he was not working at all.

So, two months later, on October 9, 2017, Diaz was invited to a meeting with Ortega and

Preciado. At the meeting Canoga claims they discussed Diaz’s ability to perform the essential

functions of his job in light of his now Permanent work restriction (Preciado Decl., ¶ 17.), and,

according to Canoga, because Diaz failed to suggest any accommodation that would allow him

to perform his position (UMF No. 34), he Diaz was terminated.

This Court finds there is a dispute whether any meaningful interactive process ever took place at

all after the August 25 Permanent restrictions. As a reminder, defendant bears a greater burden

here to show that Diaz was unable to perform the essential functions of a Houseman and any

other available vacant position Canoga may have assigned him to. Nadaf-Rahrov v. Neiman

Marcus Group, Inc. (2008) 166 Cal. App. 4th 952, 965-96.

Accordingly, Canoga’s motion for summary judgment is DENIED.

Fourth Cause of Action: FEHA Retaliation-DENIED

It is unlawful for an employer to retaliate against an employee because she reported sexual

harassment or filed a complaint under the FEHA. (See Gov.C. § 12940(h).) “[I]n order to

establish a prima facie case of retaliation under the FEHA, a 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 existed between the protected activity and the

employer’s action.” Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042. “The causal

link may be established by an inference derived from circumstantial evidence, ‘such as the

employer’s knowledge that the [employee] engaged in protected activities and the proximity in

time between the protected action and allegedly retaliatory employment decision.” Morgan v.

Regents of University of California (2000) 88 Cal.App.4th 52, 69.

Diaz was subject to an adverse employment action because he was terminated. As discussed previously, there is a triable issue of material fact as to whether Diaz requested a reasonable accommodation for his disability, which would be a protected activity. (See Gov. Code § 12940(l), (m)(2).)

Canoga’s motion for summary judgment is DENIED.

Fifth and Sixth Causes of Action: Failure to Prevent Discrimination and Retaliation & Wrongful Termination in Violation of Public Policy-DENIED

These causes of action are derivative of the discrimination and retaliation claims. (See Okorie v. Los Angeles Unified School Dist. (2017) 14 Cal.App.5th 574, 597 [stating that a failure to prevent discrimination claim is derivative because a plaintiff cannot maintain said cause of action unless there was harassment].) (See also Husman v. Toyota Motor Credit Corp. (2017) 12 Cal.App.5th 1168, 1192, fn. 13 [reversing summary adjudication of wrongful termination claim when it reversed summary adjudication of a FEHA discrimination claim, because both claims were “grounded in the same conduct.”).]

The motion for summary judgment is DENIED.

Emotional Distress Claim: DENIED

Canoga argues that Diaz’s emotional distress claims are equitably barred. Canoga contends that

Diaz already recovered for these claims in his workers’ compensation case. Diaz’s settlement in

the workers’ compensation case did not include a wavier for his civil claims. Nevertheless,

Canoga argues that Diaz’s workers’ compensation claims and his civil claim both allege he was

injured while he was conducting his that occurred at the hotel. However, the Court disagrees

with this interpretation. Diaz’s workers’ compensation claim was about his workplace injury.

Diaz’s civil claim is about Canoga’s workplace actions, resulting in his termination, in response

to his injury. Although the workplace actions arise from the injury, they are not the same.

Accordingly, summary judgment as to this claim is DENIED.

Punitive Damages Claim: GRANTED

Punitive damages generally may be awarded in a civil action only if the plaintiff proves by clear

and convincing evidence that “the defendant has been guilty of oppression, fraud, or malice . . .

.” (Civ. Code, § 3294, subd. (a).) “Malice” means conduct that “is intended by the defendant to

cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a

willful and conscious disregard of the rights or safety of others.” (Id., § 3294, subd. (c)(1).)

“Oppression” means “despicable conduct that subjects a person to cruel and unjust hardship in

conscious disregard of that person’s rights.” (Id., § 3294, subd. (c)(2).) And “fraud” means

“intentional misrepresentation, deceit, or concealment of a material fact known to the defendant

with the intention on the part of the defendant of thereby depriving a person of property or legal

rights or otherwise causing injury.” (Id., § 3294, subd. (c)(3).)

Diaz argues that discrimination is in and of itself fraudulent, malicious, oppressive, or done with conscious disregard as to his rights. Diaz cites to Cloud v. Casey (1999) 76 Cal.App.4th 895, 912 to support that proposition. In Cloud, plaintiff, a female, applied for a promotion. The job was given to a male candidate. Evidence was presented to the jury that the explanation for choosing the male candidate over plaintiff was pretextual and developed after the fact. The court stated that the adjective despicable used in section 3294 referred to circumstances that were base, vile, or contemptible. The court found that defendant’s conduct was malice or oppression as defined under Section 3294 because the adverse employment action and attempt to hide it were base, vile, or contemptible. (Ibid.) Cloud is distinguishable because there was no pretext involved that would demonstrate malice or oppression. Canoga did not hide the fact that they terminated Diaz because of his injuries.

Accordingly, summary adjudication of this claim is GRANTED.

Conclusion: Canoga’s motion for summary judgment is DENIED. Canoga’s motion for summary

adjudication is GRANTED as to Plaintiffs’ punitive damages claim.