2016-00204885-CU-OE

Joseph M. Knapp vs. State of California, DMV

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

Filed By: Downer, William H.

Defendant California Department of Motor Vehicles’ unopposed motion for summary judgment, or in the alternative summary adjudication, is granted.

The Court received, but did not consider, self-represented Plaintiff Joseph Knapp’s opposition filed on September 19, 2018, only two days before the hearing. Plaintiff’s opposition was due no later than September 7, 2018. (CCP 437c(b)(2).) In addition, there is no proof of service of the opposition on Defendant. The court in its discretion may refuse to consider these papers in ruling on the motion. Weil and Brown Cal Prac Guide Civ Proc Before Trial (2017 The Rutter Group) para. 9:105:4 (citing CRC rule 3.1300(d); see also Sacramento Local Rule 2.31(C)).

In this employment action, Plaintiff alleges causes of action for age/disability discrimination in violation of FEHA, failure to prevent discrimination, failure to provide reasonable accommodation and failure to engage in the interactive process. Plaintiff was employed as a Staff Programmer Analyst and was ultimately terminated by Defendant after Defendant invoked absent without leave (“AWOL”) proceedings pursuant to Government Code § 19996.2.

In evaluating a motion for summary judgment or summary adjudication the court engages in a three step process. The Court first identifies the issues framed by the pleadings. The pleadings define the scope of the issues on a motion for summary judgment or summary adjudication. (FPI Dev. Inc. v. Nakashima (1991) 231 Cal. App. 3d 367, 381-382). Because a motion for summary judgment or summary adjudication is limited to the issues raised by the pleadings (Lewis v. Chevron (2004) 119 Cal. App. 4th 690, 694), all evidence submitted in support of or in opposition to the motion must be addressed to the claims and defenses raised in the pleadings. An issue that is “within the general area of issues framed by the pleadings” is properly before the court on a summary judgment or summary adjudication motion. (Lennar Northeast Partners v. Buice (1996) 49 Cal. App. 4th 1576, 1582-1583.) The Court cannot consider an unpleaded issue in ruling on motion for summary judgment or adjudication. Roth v. Rhodes (1994) 25 Cal.App.4th 530, 541. The papers filed in response to a defendant’s motion for summary judgment may not create issues outside the pleadings and are not a substitute for an amendment to the pleadings. Tsemetzin v. Coast Federal Savings & Loan Assn. (1997) 57 Cal. App.4th 1334, 1342.

Next, the Court is required to determine whether the moving party has met its burden. A defendant moving for summary judgment bears the burden of persuasion that one or more elements of the plaintiffs cause of action cannot be established, or that there is a complete defense to the cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal 4th 826, 850, quoting CCP §437c(p)(2)). A defendant is not required to conclusively negate one or more elements of the plaintiffs cause of action; (Saelzer v. Advance, Group 400 (2001) 25 C4th 763, 780-781). Rather, to meet its burden, the defendant is only required to show that the plaintiff cannot prove an element of its cause of action, i.e., that the plaintiff does not possess and cannot reasonably obtain evidence necessary to show this element. Aguilar v. Atlantic Richfield Co., supra, 25 Cal 4th at pp. 853-855). Once the moving party has met its burden, the burden shifts to the opposing party to show that a material factual issue exists as to the cause of action alleged or a defense to it. CCP 437c(p). (see, generally Bush v. Parents Without Partners (1993) 17 Cal. App. 4th 322, 326-327). In ruling on the motion, the court must consider the evidence and inferences reasonably drawn from the evidence in the light most favorable to the party opposing the motion. (Aguilar, supra, 25 Cal.4th at p. 843.)

On summary judgment, a defendant employer may meet its initial burden to show it is entitled to a matter of law by demonstrating that the plaintiff cannot demonstrate a prima facie case, and may proceed to present evidence of a nondiscriminatory basis for its employment action. Guz v. Bechtel National Inc. (2000) 24 Cal.4th 317, 357.

Once the burden shifts, Plaintiff may not rely on mere allegations or denials, but instead must set forth evidence of specific facts. (Code Civ. Proc, § 437c, subd. (o).) Speculation does not constitute the kind of “substantial responsive evidence” plaintiff needs to carry her burden on a motion for summary judgment. (Hersant v. Department of Social Services (1997) 57 Cal. App.4th 997,1009.)

Defendant’s evidence shows that on August 5, 2015, Plaintiff gave his supervisor a doctor’s note excusing him from work until September 8, 2015 for an undisclosed condition. Plaintiff failed to report to work after his leave ended and told his supervisor that his doctor extended his leave until October 12, 2015. Plaintiff’s supervisor requested that Plaintiff provide medical documentation verifying the medical leave. Plaintiff did not produce a doctor’s note excusing any absence after September 5,

2015 and did not report to work for 15 consecutive days. On September 29, 2015 Defendant invoked AWOL proceedings pursuant to Government Code § 19996.2 and served Plaintiff with a letter notifying him of his AWOL separation. The AWOL separation notice informed Plaintiff that he could contest his AWOL separation by requesting an informal hearing and provided instructions on how to do so. Plaintiff did not request a hearing and instead on September 30, 2015, Plaintiff’s doctor faxed a note excusing his absence from September 9, 2015 until October 12, 2015 due to an undisclosed location. Defendant finalized Plaintiff’s AWOL separation because Plaintiff failed to contest his AWOL separation.

First, Defendants’ showing is sufficient to shift to Plaintiff the burden of demonstrating the existence of a triable issue of material fact as to whether Defendants’ invocation of the AWOL procedure to terminate Plaintiff’s employment was based on legitimate, non -discriminatory reasons. (See generally Bush v. Parents Without Partners (1993) 17 Cal. App. 4th 322, 326-327; Planned Parenthood v. City of Santa Maria (1993) 16 Cal. App. 4th 685, 690.).

Defendant’s evidence is sufficient to show that its termination of Plaintiff was based on the legitimate nondiscriminatory reason of his AWOL status. A “burden-shifting” analysis applies in evaluating claims for discrimination and retaliation in employment. ( Guz v. Bechtel National Inc. , Id. at p. 354; Dudley v. Dept. of Transp. (2001) 90 Cal.App.4th 255, 261; Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042) On summary judgment, a defendant employer may meet its initial burden to show it is entitled to a matter of law by demonstrating that the plaintiff cannot demonstrate a prima facie case, and may proceed to present evidence of a nondiscriminatory basis for its employment action. (Guz, 24 Cal.4th at 357.) Plaintiff had the burden to show pretext “either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer’s proffered explanation is unworthy of credence. [citations omitted].” (Mokler v. County of Orange (2007) 157 Cal.App.4th 121, 140.) In this regard, Plaintiff was required to produce “substantial responsive evidence that the employer’s showing was untrue or pretextual” thereby raising at least an inference of discrimination.” (Hersant v. California Dept. of Social Services (1997) 57 Cal.App.4th 997, 1004-1005.)

As noted above, the Court is not considering Plaintiff’s late opposition, and thus Plaintiff has therefore failed to meet this burden with respect to the age and disability discrimination causes of action.

In any event, even if the Court were to consider the extremely late filed opposition, Plaintiff has not submitted any evidence whatsoever in connection with the opposition, much less the “substantial responsive evidence” required to show that Defendant’s reason for terminating him was untrue or pretextual. He has simply filed a mass of documents containing argument which is not supported by any evidence or legal authority and which does not even address the specific arguments and law cited by Defendant. The opposition papers fail entirely to comply with CCP § 437c(b)(3) and CRC Rule 3.1350. A self-represented party is to be treated like any other party and is entitled to the same, but no greater consideration than other litigants and attorneys. ( Williams v. Pacific Mutual Life Ins. Co. (1986) 186 Cal. App. 3d 941, 944) Thus, as is the case with attorneys, self-represented litigants must follow correct rules of procedure. (Nwosu v. Uba (2004) 122 Cal. App. 4th 1229, 1246-1247; see also Rappleyea v. Campbell (1994) 8 Cal. 4th 975, 984.)

In addition, the failure to prevent cause of action fails given Defendant has shown that

the discrimination causes of action fail. There is no basis for a failure to prevent cause of action where there is no underlying discrimination/retaliation. (Trujillo v. North County Transit Dist. (1998) 63 Cal.App.280, 288-289.)

Finally the failure to accommodate and failure to engage in the interactive process causes of action fail as Defendant had no knowledge of Plaintiff’s claimed disability at the time of his AWOL separation.

The evidence thus shows that Defendant is entitled to judgment as matter of law on Plaintiff’s complaint and sufficient to shift to Plaintiff the burden of demonstrating the existence of a triable issue of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849.) In short, Plaintiff failed to timely oppose the motion and even if his opposition is considered, he has submitted no evidence and has failed entirely to raise any triable issue of material fact. Having failed to demonstrate the existence of a triable issue of material fact, Defendant is entitled to judgment as a matter of law.

The motion for summary judgment is granted.

Defendant’s counsel shall submit an order and judgment of dismissal pursuant to CRC 3.1312 and CCP § 437c.