Filed 4/2/20 Ochoa v. Delta Health Care and Management Service Corp. CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(San Joaquin)

—-

MARY OCHOA,

Plaintiff and Appellant,

v.

DELTA HEALTH CARE AND MANAGEMENT SERVICES CORPORATION,

Defendant and Respondent.

C087695

(Super. Ct. No.

STK-CV-UWT-2016-0012335)

Plaintiff Mary Ochoa (Ochoa) filed an age discrimination lawsuit under the California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.) against her former employer, defendant Delta Health Care and Management Services Corporation (Delta). The trial court granted Delta’s motion for summary judgment, finding Delta provided a legitimate, nondiscriminatory reason for Ochoa’s termination and that Ochoa failed to meet her burden to persuade the court that the employer’s explanation was unworthy of credence or that a discriminatory reason more likely motivated her termination.

On appeal, Ochoa contends the trial court erred by improperly weighing conflicting evidence rather than considering whether a triable issue of material fact existed on the evidence presented. We agree and therefore reverse the summary judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Delta is a private nonprofit organization dedicated to promoting health and wellness for underserved individuals and families. In 1997, when Ochoa was 48 years old, she was hired by Delta as a WIC clerk. Ochoa voluntarily resigned that position two years later. In 2003, when she was 54 years old, Ochoa was rehired by Delta as a Nutrition Assistant II. Ochoa’s duties as a nutrition assistant included providing eligibility screening and individual counseling for WIC applicants and participants. The qualifications for the position included the ability to work with a diverse, low-income population.

On August 1, 2016, Delta terminated Ochoa’s employment. At the time of her termination, Ochoa was 67 years old and she was Delta’s second oldest employee.

After terminating Ochoa, Delta distributed Ochoa’s job duties among Delta’s existing nutrition assistant staff. Of the 24 employees to whom Ochoa’s duties were distributed, at the time of Ochoa’s termination, about half were over age 40, but all of them were at least nine years younger than Ochoa.

On December 6, 2016, Ochoa filed a complaint against Delta, alleging causes of action under the FEHA for (1) age discrimination (§ 12940, subd. (a)), and (2) failure to prevent age discrimination (§ 12940, subd. (k)).

Delta’s Motion for Summary Judgment

Delta moved for summary judgment, arguing that it had a legitimate, nondiscriminatory reason for terminating Ochoa, namely, that it believed Ochoa made racially discriminatory statements in violation of company policies prohibiting discrimination. In support of its motion, Delta offered the following evidence.

On July 28, 2016, Ochoa met with an African-American client who Ochoa claimed was hostile, angry, and rude. The following morning, July 29, Ochoa met with her supervisor, 31-year-old Camille Medina, to discuss the previous day’s incident. According to Medina, Ochoa told her that she “wanted to discuss something that had been bothering her for a while.” Ochoa then proceeded to tell Medina, who is African-American, that she did not want to serve “any more [B]lack people,” because they are “mean and rude” and they “intimidate” her. Ochoa asked Medina if African-American clients could be flagged so she would not have to deal with “those people.”

Medina claims Ochoa’s comments were a “complete shock and surprise” to her. Medina felt overwhelmed, humiliated, and upset that Ochoa would say such things to her.

After her meeting with Ochoa, Medina relayed what Ochoa said, first to Lupe Williams, a coworker, and then to Kandi Howe, a human resources coordinator. At Howe’s instruction, Medina documented her conversation with Ochoa in a “note to file” and placed the document on the desk of Delta’s executive director, Brent Williams. Howe called Williams. Howe also prepared a memorandum documenting her conversation with Medina.

After speaking with Howe and reviewing Medina’s written statement, Williams decided he would meet with Ochoa to determine if Medina’s account was accurate. If so, he would terminate Ochoa.

On August 1, 2016, the next work day, Williams and Howe met with Ochoa. According to Williams and Howe, at the meeting Ochoa confirmed she told Medina she no longer wanted to work with African-American clients because they are “difficult to work with” and make her “nervous.” Having confirmed Medina’s account of what happened, Williams decided that Ochoa was unable to fulfill the requirements of her position and terminated her employment. Williams and Howe memorialized the August 1 meeting in separate memoranda.

Ochoa’s Opposition to the Motion

In opposition to the summary judgment motion, Ochoa argued that the stated reason for her termination was false and that the true motivation for her termination was age discrimination.

Ochoa admitted that she met with Medina on July 29 to discuss an incident the previous day involving an African-American client who was hostile and verbally abusive. However, Ochoa denied telling Medina that she no longer wanted to work with African-American clients and denied asking her to flag the files of African-American clients. Ochoa claimed she met with Medina merely to ask for assistance in dealing with hostile or rude clients like the African-American client who verbally abused her the previous day. Because Medina told her it was the role of supervisors to handle such cases, Ochoa claimed she asked Medina to flag the files of hostile or angry clients so she could feel safe in the workplace.

Although she met with Williams and Howe on August 1, 2016, Ochoa denied she “confirmed” or even discussed Medina’s accusations at that meeting. Ochoa claimed the decision to terminate her must have been made before the meeting because as soon as she joined the meeting, Williams told her, “According to a conversation you had with your supervisor, you’re terminated. Take your check and go.” Ochoa claimed that Williams and Howe refused to investigate her side of the story.

Ochoa argued that Delta fabricated the story about her racist/discriminatory statements as a pretext to disguise the true motivation for her termination, which was age discrimination. To support her argument, Ochoa introduced evidence that her supervisor and other Delta employees made “ageist” comments to her in the final months of her employment. Specifically, Ochoa testified in deposition that beginning in 2015 and continuing through approximately June 2016, Medina asked Ochoa on several occasions when she was going to retire, and remarked that Ochoa was “getting tired.” Ochoa testified that Lupe Williams, her former supervisor, made similar comments about retirement three or four times. A few months before her termination, Lupe Williams allegedly commented, “[W]hen are you going to retire? You shouldn’t be working at this age. You should be off somewhere, like, in Florida.” In addition, Ochoa claimed that during the last insurance renewal period Howe told Ochoa she was Delta’s “highest insurance cost.”

As further support for her claim, Ochoa noted that she had worked as a nutrition assistant for Delta for 13 years, working with clients of all races, and during that time she had never been subjected to any adverse employment action.

In addition, all of Delta’s witnesses admitted that the alleged discriminatory statements were out of character for Ochoa. Prior to her termination, none of those witnesses had ever seen or heard Ochoa act in any way that was racist, derogatory, or demeaning toward African-Americans. Lupe Williams specifically described Ochoa as a timid and nervous person who has an issue with difficult clients, not “just . . . African-American [clients].”

The Trial Court’s Ruling

After considering the parties’ evidence and arguments, the trial court granted Delta’s motion for summary judgment. The court concluded that Delta met its burden to produce evidence showing that Williams terminated Ochoa for a legitimate, nondiscriminatory reason not related to Ochoa’s age, namely, because Williams believed Ochoa requested to be excused from serving African-American WIC applicants and participants. Although Williams may have been mistaken in his belief, the court concluded that “it is not illegal for an employer to terminate an employee on the basis of a mistake.” The court further concluded that Ochoa did not meet her burden to persuade the court that the employer’s proffered reason was unworthy of credence or that a discriminatory reason more likely motivated her termination.

On June 7, 2018, the trial court entered judgment in favor of Delta. Ochoa filed her notice of appeal on August 1, 2018.

DISCUSSION

Ochoa argues the trial court erred by improperly weighing conflicting evidence rather than considering whether there is a triable issue of material fact. We agree.

I

Standard of Review

Summary judgment is properly granted when there is no triable issue as to any material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).)

How the parties moving for, and opposing, summary judgment may carry their burdens depends on which party would bear what burden of proof at trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 851 (Aguilar).) If a plaintiff who would bear the burden of proof by a preponderance of the evidence at trial moves for summary judgment, the plaintiff must present evidence that would require a reasonable trier of fact to find any underlying material fact more likely than not. (Ibid.) By contrast, if a defendant moves for summary judgment against such a plaintiff, the defendant must present evidence that would require a reasonable trier of fact not to find any underlying material fact more likely than not. (Ibid.)

To be entitled to judgment as a matter of law, a defendant moving for summary judgment must show, by admissible evidence, that one or more elements of the cause of action cannot be established or that there is a complete defense to the action. (Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 859.) If the defendant makes this showing, the burden shifts to the plaintiff to set forth specific facts showing that a triable issue of material fact exists as to that cause of action or defense. (Id. at pp. 859-860.) There is a triable issue of material fact if the evidence reasonably would permit a trier of fact, under the applicable standard of proof, to find the purportedly contested fact in favor of the party opposing the motion. (Catholic Healthcare West v. California Ins. Guarantee Assn. (2009) 178 Cal.App.4th 15, 23.)

On appeal after a motion for summary judgment has been granted, we review the record de novo to determine if there are triable issues of material fact. (Barclay v. Jesse M. Lange Distributor, Inc. (2005) 129 Cal.App.4th 281, 290; Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334 (Guz).) We must view the evidence and the reasonable inferences therefrom in the light most favorable to the party opposing summary judgment, resolving any factual conflicts in favor of the nonmoving party. (Aguilar, supra, 25 Cal.4th at p. 843; Sutherland v. Barclays American/Mortgage Corp. (1997) 53 Cal.App.4th 299, 309.) All doubts as to whether triable issues of fact exist are resolved in favor of the party opposing summary judgment. (Gold v. Weissman (2004) 114 Cal.App.4th 1195, 1198-1199.)

II

Age Discrimination

In this case, we conclude the trial court erred in granting summary judgment on the first cause of action because there is sufficient evidence for a reasonable trier of fact to find that age discrimination was a substantial motivating factor in Ochoa’s termination.

Under the FEHA, it is unlawful for an employer to discriminate against a person because of age. (§ 12940, subd. (a).) A plaintiff is in a protected class for purposes of an age discrimination lawsuit if he or she is 40 years of age or older. (§ 12926, subd. (b); McCaskey v. California State Automobile Assn. (2010) 189 Cal.App.4th 947, 978; see also Cal. Code Regs., tit. 2, § 11074, subd. (a).)

An employee alleging age discrimination has the burden to prove at trial that an adverse employment action was taken because of his or her age. (Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1002 (Hersant).) “The phrase ‘because of’ means there must be a causal link between the employer’s consideration of [the] protected characteristic and the [adverse] action taken by the employer.” (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 215.) In cases of mixed motive, this means that the plaintiff must prove discrimination was at least a “substantial motivating factor” in the adverse employment action. (Id. at p. 232.)

An employee can prove a FEHA violation in one of two ways: by direct evidence of intentional discrimination or by circumstantial evidence. (DeJung, supra, 169 Cal.App.4th at p. 549.) Because direct evidence of intentional discrimination is seldom available, California courts use the burden-shifting test established by the United States Supreme Court in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 [36 L.Ed.2d 668] (McDonnell Douglas) as an aid for trying claims of discrimination based on circumstantial evidence. (Guz, supra, 24 Cal.4th at p. 354.)

Under the McDonnell Douglas test, the plaintiff has the initial burden at trial to establish a prima facie case of age discrimination. (Guz, supra, 24 Cal.4th at p. 354.) While the plaintiff’s initial burden is not onerous, the plaintiff must at least show “ ‘ “actions taken by the employer from which one can infer, if such actions remain unexplained, that it is more likely than not that such actions were ‘based on a [prohibited] discriminatory criterion.’ ” ’ ” (Id. at p. 355.) The specific elements of a prima facie case vary depending on the facts, but generally require evidence showing that (1) the plaintiff was a member of a protected class; (2) the plaintiff was qualified for the position sought or was performing competently in the position held; (3) the plaintiff suffered an adverse employment action; and (4) the adverse action occurred under some circumstance suggesting discriminatory motive (such as the employee was replaced in his or her position by a significantly younger person). (Ibid.; see also Hersant, supra, 57 Cal.App.4th at p. 1003.)

If the plaintiff establishes a prima facie case, a rebuttable presumption of discrimination arises, and the burden shifts to the employer to produce evidence which, taken as true, would justify a judgment for the employer that the adverse employment action was taken for a legitimate, nondiscriminatory reason. (Guz, supra, 24 Cal.4th at pp. 355-356.)

If the employer sustains its burden, the presumption of discrimination drops from the case and the burden shifts back to the employee to prove intentional discrimination. (Guz, supra, 24 Cal.4th at pp. 356, 361; Clark v. Claremont University Center (1992) 6 Cal.App.4th 639, 664.) In this third stage of the McDonnell Douglas test, the employee, who retains the ultimate burden of persuasion, has the opportunity to demonstrate that the employer’s stated reason for the adverse action was not the true reason, but was instead a pretext to disguise illegal discrimination. (Clark, supra, 6 Cal.App.4th at p. 664.) At trial, a plaintiff may show pretext either directly, by showing that unlawful discrimination more likely than not motivated the employer, or indirectly, by showing that the employer’s proffered explanation is “unworthy of credence.” (DeJung, supra, 169 Cal.App.4th at p. 553; Clark, at pp. 664-665; see also Guz, supra, 24 Cal.4th at p. 361.)

Because the McDonnell Douglas test was developed for use at trial, the framework must be modified in the summary judgment context. (Galvan v. Dameron Hospital Assn. (2019) 37 Cal.App.5th 549, 559.) At the summary judgment stage, “ ‘ “[t]he employer, as the moving party, has the initial burden to present admissible evidence showing either that one or more elements of plaintiff’s prima facie case is lacking or that the adverse employment action was based upon legitimate, nondiscriminatory factors.” ’ [Citation.] ‘If the employer meets its initial burden, the burden shifts to the employee to “demonstrate a triable issue by producing substantial evidence that the employer’s stated reasons were untrue or pretextual, or that the employer acted with a discriminatory animus, such that a reasonable trier of fact could conclude that the employer engaged in intentional discrimination or other unlawful action.” ’ ” (Ibid.)

Contrary to what the trial court’s ruling suggests, a plaintiff opposing such a motion is not required to prove that the employer’s stated reason is unworthy of credence or that a discriminatory reason more likely motivated the employer’s action. The plaintiff merely is required to show there is sufficient evidence from which a reasonable trier of fact could find that the adverse employment action was based on discrimination (i.e., that discrimination was a substantial motivating factor for the adverse action). (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 840.)

Delta argues that it is not enough for Ochoa simply to show there is a triable issue of fact about whether she should have been terminated, since the relevant factual dispute is whether her termination was motivated by discriminatory animus, not whether her termination was wise or correct. This is a correct statement of law, but it sidesteps the relevant issue here, which is whether Delta lied about the reason for her termination.

While an inference of intentional discrimination cannot be drawn solely from evidence that the employer’s proffered reason is false, discrediting an employer’s explanation may “considerably assist” a circumstantial case of discrimination by suggesting that the employer had cause to hide its true reasons. (Guz, supra, 24 Cal.4th at pp. 360-361.) If a plaintiff is able to convince a trier of fact that the employer did not act for the proffered reason, the jury may, in appropriate circumstances, draw an inference of discrimination. (Aka v. Wash. Hosp. Center (D.C. Cir. 1998) 156 F.3d 1284, 1292; St. Mary’s Honor Center v. Hicks (1993) 509 U.S. 502, 517 [125 L.Ed.2d 407, 422-423]; Reeves v. Sanderson Plumbing Products (2000) 530 U.S. 133, 147 [147 L.Ed.2d 105, 119] (Reeves).) And if the jury can infer that the employer’s explanation is not only mistaken, but a lie, it provides even stronger circumstantial evidence of discrimination. (Aka, supra, at p. 1293; see also Reeves, supra, at p. 147.)

In many cases where a plaintiff has presented a legally sufficient prima facie case of discrimination and has set forth sufficient evidence to reject the defendant’s innocent explanation, the evidence will be sufficient to defeat summary judgment. (Turner v. Baylor Richardson Med. Ctr. (5th Cir. 2007) 476 F.3d 337, 345; Rowe v. Marley Co. (4th Cir. 2000) 233 F.3d 825, 830; Burton v. Teleflex Inc. (3d Cir. 2013) 707 F.3d 417, 430-431; Campana v. City of Greenfield (E.D.Wis. 2001) 164 F.Supp.2d 1078, 1086; but see Zimmermann v. Associates First Capital Corp. (2d Cir. 2001) 251 F.3d 376, 381-383.) This is true because, in the summary judgment context, the judge’s function is not to weigh the evidence and determine the truth of the matter, but merely to determine whether there is a genuine issue for trial. (Anderson v. Liberty Lobby, Inc. (1986) 477 U.S. 242, 248, 249 [91 L.Ed.2d 202, 211, 212].) Even if it may appear that a trial court took a reasonable view of the evidence, summary judgment cannot be affirmed on appeal unless the evidence is incapable of supporting a judgment for the losing party as a matter of law. (Sandell v. Taylor-Listug, Inc. (2010) 188 Cal.App.4th 297, 308.) In a discrimination case this means that summary judgment for the employer is not appropriate unless, viewing the evidence in the light most favorable to the plaintiff, no reasonable trier of fact could find that discrimination was a motivating factor for the adverse employment action. (Guz, supra, 24 Cal.4th at p. 362, quoting Reeves, supra, 530 U.S. at pp. 148-149.) Thus, where a plaintiff has presented a legally sufficient prima facie case of discrimination, and set forth sufficient evidence to reject the defendant’s innocent explanation, the evidence generally will be sufficient to permit a rational inference of discrimination.

In this case, we conclude Ochoa presented sufficient evidence to raise a triable claim that her termination was motivated by age discrimination.

First, Ochoa presented a prima facie case of age discrimination. As described above, the elements of a prima facie case of discrimination generally require a showing that (1) the plaintiff was a member of a protected class; (2) the plaintiff was qualified for the position or was performing competently in the position; (3) the plaintiff suffered an adverse employment action; and (4) the adverse action occurred under some circumstance suggesting discriminatory motive (such as the employee being replaced by a significantly younger person). (Guz, supra, 24 Cal.4th at p. 355.) Here, there is no dispute that Ochoa suffered an adverse employment action because she was terminated. Nor is there any dispute that she was a member of a protected class because she was over the age of 40.

Delta may argue that Ochoa was not performing her job competently because there is evidence she made racially discriminatory comments to her supervisor. However, this evidence is disputed, and Ochoa introduced other evidence to support a finding that she was performing her job competently. Namely, Ochoa presented evidence that prior to her termination she had been employed by Delta as a nutrition assistant for 13 years, working with clients of all races, and never had been subjected to any adverse employment action.

There also is substantial evidence to support the fourth element, circumstances giving rise to an inference of discrimination, because after she was terminated her job duties were distributed to employees who were significantly younger than her. (Hersant, supra, 57 Cal.App.4th at pp. 1003, 1006; Douglas v. Anderson (9th Cir. 1981) 656 F.2d 528, 533; Elliott v. Group Medical & Surgical Service (5th Cir. 1983) 714 F.2d 556, 562; cf. Guz, supra, 24 Cal.4th at p. 368 [discussing what is a significant age gap for purposes of a discriminatory inference].)

Second, after Delta responded with a legitimate, nondiscriminatory reason for her termination, Ochoa offered substantial evidence that the reason given by Delta is false. Ochoa testified that, contrary to what Delta claims, she never asked to be excused from serving African-American clients or to flag the files of African-American clients. She testified that she merely asked for assistance in dealing with hostile clients like the African-American client who verbally abused her on July 28. Ochoa’s testimony, no matter how self-serving, creates a disputed issue of fact.

In any event, her testimony is bolstered by other evidence in the record, including evidence that she worked with clients of all races for 13 years without any adverse employment actions. Further, the defense witnesses admitted that the alleged discriminatory statements were out of character for Ochoa, and none had ever seen or heard Ochoa act in any way that was racist, derogatory, or demeaning toward African-Americans.

Delta argues that even if there is a triable dispute about whether Ochoa actually made the racially discriminatory statements, it is irrelevant because there is undisputed evidence that Brent Williams honestly believed she made the statements. Thus, Delta argues, Ochoa at most can show Williams acted based on a mistaken belief, which is not sufficient to defeat summary judgment. We disagree.

Contrary to what Delta argues, it is not “undisputed” that Williams honestly believed Ochoa made the racially discriminatory statements. Ochoa does not merely deny making racially discriminatory statements, she also denies ever telling anyone that she did. Ochoa’s testimony directly contradicts the testimony of Williams (and Howe) that Ochoa “confirmed” Medina’s account of the events during their August 1 meeting. Viewing the evidence in the light most favorable to Ochoa, as we must, we conclude that Ochoa’s testimony supports a rational inference that Williams lied about the August 1 meeting. Together with the other evidence of discriminatory animus, a reasonable trier of fact could infer that Williams lied about the August 1 meeting to conceal an unlawful, discriminatory motive. (Reeves, supra, 530 U.S. at p. 147 [in appropriate cases, the trier of fact can reasonably infer from the falsity of the employer’s explanation that the employer is dissembling to cover up a discriminatory purpose].)

Further, under established case law, Ochoa need not demonstrate that Williams harbored discriminatory animus to defeat Delta’s summary judgment motion. Under the “cat’s paw” theory, a showing that any “significant participant” in the adverse employment decision exhibited discriminatory animus is “enough to raise an inference that the employment decision itself was discriminatory.” (DeJung, supra, 169 Cal.App.4th at p. 551; see also Reeves v. Safeway Stores, Inc. (2004) 121 Cal.App.4th 95, 110 [plaintiff can establish causation by showing that any substantial contributor to the decision bore the requisite discriminatory animus].)

Here, a reasonable trier of fact could conclude that Medina, motivated by discriminatory animus, caused Ochoa’s termination by fabricating claims of misconduct that eventually resulted in Ochoa’s termination. Thus, even if there were no questions about what Williams believed, there still would be a triable issue of fact as to whether age discrimination was a substantial motivating factor in Ochoa’s termination.

Finally, in addition to establishing a prima facie case of discrimination and introducing evidence to rebut the employer’s explanation, Ochoa produced other evidence that her termination was motivated by age-based discriminatory animus. In particular, she introduced evidence of numerous “ageist” remarks made to her in the months preceding her termination, including that Medina—her 31-year-old supervisor—asked her on several occasions (and as recently as a couple of months before her termination) when she was going to retire, and remarked that she was “getting tired.” Ochoa introduced evidence that Lupe Williams, her former supervisor, told her that she “shouldn’t be working at [her] age,” and that she “should be off somewhere, like, in Florida.” In addition, Ochoa introduced evidence that during the last insurance renewal period, Howe told Ochoa that she was Delta’s “highest insurance cost.”

Delta attempts to dismiss the age-related comments as inconsequential “stray remarks” made outside the decisional process. However, unlike federal courts, California courts do not disregard potentially damaging discriminatory remarks simply because they are made by nondecisionmakers, or made by decisionmakers in circumstances unrelated to the decisional process. As the California Legislature recently made clear, the “existence of a hostile work environment depends upon the totality of the circumstances and a discriminatory remark, even if not made directly in the context of an employment decision or uttered by a nondecisionmaker, may be relevant, circumstantial evidence of discrimination. In that regard, the Legislature affirms the decision in Reid v. Google, Inc. (2010) 50 Cal.4th 512 in its rejection of the ‘stray remarks doctrine.’ ” (Gov. Code, § 12923, subd. (c); see also Reid, supra, 50 Cal.4th at p. 540 [“[E]ven if age-related comments can be considered stray remarks because they were not made in the direct context of the decisional process, a court should not categorically discount the evidence if relevant; it should be left to the fact finder to assess its probative value”].) Hence, we must consider all relevant evidence, including stray remarks, in determining whether a rational inference of discrimination exists.

Viewing the evidence in the light most favorable to the plaintiff, we conclude that there is sufficient evidence for a reasonable jury to return a verdict for the plaintiff on her age discrimination claim. Thus, the trial court erred in granting summary judgment.

III

Failure to Prevent Age Discrimination

Ochoa’s second cause of action alleges that Delta violated the FEHA by failing to take “all reasonable steps necessary to prevent discrimination” from occurring. (§ 12940, subd. (k).) Having concluded that Ochoa could not prevail on her claim for discrimination, the trial court concluded that she also could not prevail on her claim for failure to prevent discrimination. (Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1021 [an actionable claim under § 12940, subd. (k) is dependent on a claim of actual discrimination].) Because we conclude the trial court erred in granting summary judgment on the first cause of action, we conclude the court also erred in granting summary judgment on the second cause of action.

DISPOSITION

The summary judgment is reversed. The matter is remanded to the trial court for further proceedings. Plaintiff is to recover her costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1).)

KRAUSE , J.

We concur:

MURRAY , Acting P. J.

HOCH , J.