Motion by Defendant Intel Corporation, Inc., for summary judgment or [sic] in the alternative, summary adjudication as to the First Amended Complaint of Plaintiff Ming Zhu

I. Motions to Seal

Defendant seeks to have sealed the following documents in the court file:
1) Defendant’s Evidence in Support of Motion (filed August 26, 2013) only as follows:
a) only as to Tab C, Declaration of Merwin “Chip” Brown, and therein only as to Exhibits A and B
b) only as to Tab D, Declaration of James D. Cole, and therein only as to Exhibit D
c) only as to Tab J, Declaration of James Quaranta, and therein only as to Exhibit D
4) Plaintiff’s Evidence in Opposition to Motion (filed on January 9, 2014) only as Tab 1, Plaintiff’s Declaration and therein only as to the following exhibits: 27, 28, 50, 62, 63, 64, 68, 69, 70, 71, 72, 74 and 75.

The court finds that, as to these documents only: (1) there exists an overriding interest that overcomes the right of public access to the record; (2) the overriding interest supports sealing the record; (3) there exists a substantial probability that the overriding interest will be prejudiced if the record is not sealed; (4) the proposed sealing is narrowly tailored; and (5) no less restrictive means exist to achieve the overriding interest.

Defendant’s motions to seal are GRANTED. (See Cal. Rules of Court, rules 2.550 and 2.551.) To implement this order, the clerk will seal the entirety of Defendant’s Evidence in Support of Motion and Plaintiff’s Evidence in Opposition to Motion, and within ten days of this order Defendant must present for filing another copy of each of these documents omitting only the portions which are subject to this order.

II. Evidentiary Objections

Plaintiff submits 85 evidentiary objections to Defendant’s evidence submitted in support of its motion. With its reply, Defendant submits 111 evidentiary objections to Plaintiff’s evidence submitted in opposition to the motion.

Plaintiff’s evidentiary objections are sustained as to objection numbers 35-36, 39-41, 43-44, 46, 50, 56-57, 67-68, and 82, and are otherwise overruled.

Defendant’s evidentiary objections are sustained as to objection numbers 29-30, 32, 34, 56-57, and 65-66, and are otherwise overruled.

III. Analysis

A. Summary Judgment

The motion for summary judgment as to all causes of action is DENIED. Plaintiff had a reasonable basis for complaining about safety/thermal issues. (See Zhu Declaration, ¶¶ 1, 4, 25, 77-78.) This evidence is based on Plaintiff’s experience, which is sufficient for a trier of fact to conclude that Plaintiff had a reasonable basis for complaining about safety/thermal issues. (See Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1045.)

Even assuming that Defendant had legitimate, non-retaliatory business reasons for terminating Plaintiff’s employment, Plaintiff raises a triable issue of fact as to pretext. (Zhu’s Additional Material Fact (“AMF”), Nos., 1-7, 12, 15-29; Opposition to Intel’s Undisputed Material Facts (“DUMF”), Nos. 72-73, 80, 85; see McRae v. Dep’t of Corr. & Rehab. (2006) 142 Cal.App.4th 377, 388-89 (“The plaintiff’s burden is to prove, by competent evidence, that the employer’s proffered justification is mere pretext; i.e., that the presumptively valid reason for the employer’s action was in fact a coverup.”) At a minimum, Defendant’s version of events (i.e., that Plaintiff was a poor employee who was not responding to criticism) is contradicted by Plaintiff’s evidence that she did not refuse to satisfy the performance program, but rather was set up for failure after she voiced concerns about thermal issues. This evidence, taken together, raises a triable issue of material fact as to the reasons for Plaintiff’s termination.

B. Summary Adjudication

1. First Cause of Action

The motion for summary adjudication as to the first cause of action for wrongful termination in violation of public policy is DENIED. Plaintiff engaged in a protected activity when she complained to management level employees about thermal issues. (AMF, Nos., 1-7, 12, 15-16, 19-29.) The evidence shows that, from that point forward, a series of steps and actions by Defendant’s management led to her being involved in performance programs and other corrective programs, which eventually led to her termination. (DUMF, No. 104; Opposition to DUMF, Nos. 73, 80, 85.) This is evidence of a causal connection between her safety/thermal complaints and the termination of her employment.

2. Second Cause of Action

The motion for summary adjudication as to the second cause of action for discrimination and retaliation in violation of Labor Code sections 6310, subdivisions (a)(1)-(2) and (b), is DENIED. As noted, Plaintiff made complaints that concerned workplace safety. (AMF, Nos., 1-7, 12, 15-16, 19-29.) The statute provides that Defendant cannot discharge any employee who has “[m]ade any oral or written complaint . . . with reference to employee safety.” (Lab. Code, § 6310, subd. (a)(1) (emphasis added).) Nothing in this language provides that referencing possible future dangers to employee safety is prohibited. (See Taylor v. Lockheed Martin Corp. (2000) 78 Cal.App.4th 472, 485 [“A private cause of action for retaliatory discharge under Labor Code section 6310 is part of California’s statutory scheme for occupational safety.”]; id., quoting Hentzel v. Singer Co. (1982) 138 Cal.App.3d 290, 298 [“Though section 6310 provides for an individual claim, it concerns ‘protection of employees against retaliatory dismissal for conduct which, in light of the statutes, deserves to be encouraged, rather than inhibited.’”] (emphasis added).)

3. Third Cause of Action

The motion for summary adjudication as to the third cause of action for violations of Labor Code section 1102.5, subdivision (c), is DENIED. Although Plaintiff knew of no statute, rule, or regulation prohibiting Oak Trail’s design, she was aware of “general principles.” (Zhu Declaration, ¶ 77(a)-(c).) She knew that exposing Defendant’s employees or the public to the dangers of heat probably violated state, if not federal law. (Id., ¶ 77(a).) She pointed out to Defendant’s management, both orally and in writing, that one of its products posed a potential danger of overheating in violation of industry safety rules. (Id.) She also knew that trying to pass off a product to the shareholders or the public by misrepresentation or non-disclosure of the problems with the product would probably violate consumer, fraud, or corporate laws. (Id., ¶ 77(b).) The act of complaining to senior management implies that she refused to participate in potentially unlawful activity. (See Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 38 [court must liberally construe evidence and resolve all doubts in support of the party opposing summary adjudication].)

Defendant’s argument that the First Amended Complaint does not contain an allegation that Plaintiff refused to participate in an unlawful activity is incorrect. (See First Amended Complaint, ¶ 73 [“Ms. Zhu remonstrated against participating in or concealing the thermal issues and the consequences thereof.”]; ¶ 74 [“[C]oncealing the consequences of the Oak Trail technology’s thermal issues posed a hazard to the safety of Intel employees and would mislead the consuming public in violation of state and/or federal law, although she was not familiar with the terms of the relevant statutes.”].)

4. Fourth Cause of Action

The motion for summary adjudication as to the fourth cause of action for damages and reinstatement for discrimination in violation of Labor Code sections 98.6, subdivisions (a)-(b), and section 232.5, subdivisions (a) and (c), is DENIED. Defendant’s argument regarding Labor Code section 232.5 mirrors the argument above that Plaintiff’s complaints were not about safety/thermal issues, but were about whether one of Defendant’s products “fit” in a tablet computer. As noted, Plaintiff presents evidence that senior management was informed of the safety/thermal issues. (See AMF, Nos. 20-28.)

Because the arguments regarding Labor Code section 232.5 lack merit, Defendant’s contentions with regard to Labor Code section 98.6 must fail. (See Code, Civ. Proc., § 437c, subd. (f)(1) [summary judgment cannot be granted as to only part of a cause of action].)

5. Punitive Damages

The motion for summary adjudication as to the prayer for punitive damages is DENIED. To show there is no evidence of oppression, malice, or fraud, Defendant maintains there is no evidence of despicable conduct by any officer, director, or managing agent. Defendant cites to DUMF number 167, which states that Defendant’s management did not harbor malice or ill will against Plaintiff.

In opposition, Plaintiff cites to her declaration. (See Opposition to DUMF, No. 167 [Zhu Decl., ¶¶ 7-10, 21, 25, 27-126].) There is a triable issue of fact concerning conduct constituting malice or oppression. Mock v. Michigan Millers Mut. Ins. Co. (1992) 4 Cal.App.4th 306, 330-31 [ordinarily the question of whether conduct is despicable is for the trier of fact to resolve].)