Case Number: SC122415 Hearing Date: February 07, 2019 Dept: K

Case Name: Daytona v. Cyber Medical Imaging, Inc., et al.

Case No.: SC122415 Complaint Filed: 4/18/14

Hearing: 2/7/19 Motion C/O:

Calendar #: 3 Discovery C/O:

Notice: OK Trial Date: 3/25/19

______________________________________________________________________________

SUBJECT: MOTION FOR SUMMARY JUDGMENT OR, ALTERNATIVELY, MOTION FOR SUMMARY ADJUDICATION OF ISSUES

MP: Defendants Cyber Medical Imaging, Inc. dba XDR Radiology, Joel Karafin, and Douglas Yoon

RP: None filed as of 2/4/19 (Opposition was due 1/24/19)

BACKGROUND

Plaintiff Shireen Daytona sued Defendants Cyber Medical Imaging, Inc. dba XDR Radiology, Joel Karafin, and Douglas Yoon for damages based on allegations that she was discriminated against in her employment and wrongfully terminated. Plaintiff alleges she was subjected to a hostile work environment and retaliated upon. Plaintiff, who is self-represented, filed the operative second amended complaint on July 8, 2015. The second amended complaint asserts causes of action for:

(1) wrongful termination in violation of public policy,

(2) gender harassment in violation of California Fair Employment Housing Act,

(3) race harassment in violation of the California Fair Employment Housing Act,

(4) hostile work environment in violation of California Government Code section 12940(j), and

(5) retaliation in violation of California Government Code section 12940, et seq.

On December 21, 2016, the Court ruled on Defendants’ demurrer to the second amended complaint as follows: as to all Defendants, sustained the third cause of action without leave to amend; as to the individual defendants (Yoon and Karafin), sustained the first and fifth causes of action without leave to amend; as to the entity defendant (Cybr Medical Imaging, Inc.) overruled as to the first cause of action.

On August 23, 2017, the Court granted summary adjudication in favor of Defendants as to the first and fifth causes of action.

Thus, the remaining claims from the second amended complaint are the second and fourth causes of action (against all Defendants).

REPLY— None filed as of 2/4/19 (Reply was due 1/31/19)

TENTATIVE RULING

Defendants’ Motion for Summary Judgment is GRANTED.

ANALYSIS

Defendants move for summary judgment or, alternatively, summary adjudication, as to the second and fourth causes of action in the operative second amended complaint. The Court notes that in the notice of motion Defendants wrote “fifth” cause of action, instead of “fourth” cause of action. But, based on the description of the claim (“Hostile Environment Harassment”) and the remainder of the motion, the Court determines that Defendants move to adjudicate the second and fourth (not second and fifth) causes of action.

Motion for Summary Judgment/Adjudication Standard

“The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) Pursuant to CCP 437c(a):

A party may move for summary judgment in any action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding. The motion may be made at any time after 60 days have elapsed since the general appearance in the action or proceeding of each party against whom the motion is directed or at any earlier time after the general appearance that the court, with or without notice and upon good cause shown, may direct. . . . The motion shall be heard no later than 30 days before the date of trial, unless the court for good cause orders otherwise. The filing of the motion shall not extend the time within which a party must otherwise file a responsive pleading.

A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty. (CCP § 437c(f)(1).)

“The supporting papers shall include a separate statement setting forth plainly and concisely all material facts which the moving party contends are undisputed. Each of the material facts stated shall be followed by a reference to the supporting evidence. The failure to comply with this requirement of a separate statement may in the court’s discretion constitute a sufficient ground for denial of the motion.” (CCP § 437c(b)(1); see also CRC 3.1350(c)(2) & (d).) Both parties submit separate statements.

In analyzing motions for summary judgment, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent’s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.” (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.) Pursuant to CCP § 437c(p)(2):

A defendant or cross-defendant has met his or her burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action. Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. The plaintiff or cross-complainant may not rely upon the mere allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto.

The Court must “view the evidence in the light most favorable to the opposing party and accept all inferences reasonably drawn therefrom.” (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294; Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389 (Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.”).)

It is the “Golden Rule” of summary judgment that “if it is not set forth in the separate statement, it does not exist.” (Zimmerman, Rosenfeld, Gersh & Leeds LLP v. Larson (2005) 131 Cal.App.4th 1466, 1477, citing United Community Church v. Garcin (1991) 231 Cal.App.3d 327, 337.) However, the Court may in its discretion look to evidence outside the separate statement, but “only if the evidence presented warrants it.” (Id. at 1478.)

Second Cause of Action – Gender Harassment in Violation of FEHA

The California Fair Employment and Housing Act prohibits harassment on the basis of gender. (Gov. Code, § 12940, subd. (j)(1).)

The elements of a claim for harassment under Government Code section 12940, subdivision (j), include:

1. That [name of plaintiff] was [an employee of/a person providing

services under a contract with/an unpaid intern with/a volunteer

with] [name of employer];

2. That [name of plaintiff] was subjected to unwanted harassing

conduct because [he/she] was [protected status, e.g., a woman];

3. That the harassing conduct was severe or pervasive;

4. That a reasonable [e.g., woman] in [name of plaintiff]’s

circumstances would have considered the work environment to

be hostile or abusive;

5. That [name of plaintiff] considered the work environment to be

hostile or abusive;

6. That [name of defendant] [participated in/assisted/ [or]

encouraged] the harassing conduct;

7. That [name of plaintiff] was harmed; and

8. That the conduct was a substantial factor in causing [name of plaintiff]’s harm.

(CACI 2522a.)

On April 24, 2018, the Court granted Defendants’ motion to deem requests for admissions admitted. (Minute Order, 4/24/18.) Based upon that motion, the following was admitted against Plaintiff:

Plaintiff has no evidence to support her claim that Cyber harassed her on the basis of gender. (RFA, No. 1.)

Plaintiff has no evidence to support her claim that Yoon harassed her on the basis of gender. (RFA No. 2.)

Plaintiff has no evidence to support her claim that Karafin harassed her on the basis of gender. (RFA No. 3.)

Plaintiff incurred no damages as a result of any conduct against her by Cyber. (RFA No. 10.)

Plaintiff incurred no damages as a result of any conduct against her by Yoon. (RFA No. 11.)

Plaintiff incurred no damages as a result of any conduct against her by Karafin. (RFA No. 12.)

Based on foregoing, Defendants show that there is no triable issue that Defendants participated in, assisted, or encouraged gender harassing conduct (sixth element) and show that there is not triable issue that Plaintiff was harmed by Defendants (seventh element).

Therefore, Defendants carry their burden to show that the second cause of action has no merit because Defendants have shown that one or more elements of the cause of action cannot be established.

The burden shifts to Plaintiff to raise a triable issue of fact.

Because the motion is not opposed by Plaintiff, she fails to meet her burden.

Accordingly, the motion is GRANTED as to the second cause of action.

Fourth Cause of Action – Hostile Environment Harassment in Violation of FEHA

The elements for a claim that an employer caused a hostile work environment under Government Code section 12940, subdivision (j), include:

1. That [name of plaintiff] was [an employee of/a person providing

services under a contract with/an unpaid intern with/a volunteer

with] [name of defendant];

2. That [name of plaintiff] was subjected to unwanted harassing

conduct because [he/she] was [protected status, e.g., a woman];

3. That the harassing conduct was severe or pervasive;

4. That a reasonable [e.g., woman] in [name of plaintiff]’s

circumstances would have considered the work environment to

be hostile or abusive;

5. That [name of plaintiff] considered the work environment to be

hostile or abusive;

6. [Select applicable basis of defendant’s liability:]

[That a supervisor engaged in the conduct;]

[That [name of defendant] [or [his/her/its] supervisors or agents]

knew or should have known of the conduct and failed to take

immediate and appropriate corrective action;]

7. That [name of plaintiff] was harmed; and

8. That the conduct was a substantial factor in causing [name of plaintiff]’s harm

(CACI 2521a.)

On April 24, 2018, the Court granted Defendants’ motion to deem requests for admissions admitted. (Minute Order, 4/24/18.) Based upon that motion, the following was admitted against Plaintiff:

Plaintiff has no evidence to support her claim that she was subject to a hostile work environment while employed by Cyber. (RFA, No. 4.)

Plaintiff has no evidence to support her claim that she was subject to a hostile work environment while employed by Yoon. (RFA No. 5.)

Plaintiff has no evidence to support her claim that she was subject to a hostile work environment while employed by Karafin. (RFA No. 6.)

Plaintiff incurred no damages as a result of any conduct against her by Cyber. (RFA No. 10.)

Plaintiff incurred no damages as a result of any conduct against her by Yoon. (RFA No. 11.)

Plaintiff incurred no damages as a result of any conduct against her by Karafin. (RFA No. 12.)

Based on the foregoing, Defendants show that there is no triable issue that Plaintiff was harmed by Defendants’ conduct (seventh element).

Therefore, Defendants carry their burden to show that the second cause of action has no merit because Defendants have shown that one or more elements of the cause of action cannot be established.

The burden shifts to Plaintiff to raise a triable issue of fact.

Because the motion is not opposed by Plaintiff, she fails to meet her burden.

Accordingly, the motion is GRANTED as to the second cause of action.

It is unnecessary for the Court to reach Defendants’ final argument concerning whether Defendants’ reason for firing Plaintiff was a pretext for harassment.

As this motion is unopposed, the parties may submit on the briefs without appearance by calling the Court Clerk for Dept. K by COB 2/6/19.