2015-00184980-CU-OE

Jacqueline Burnett vs. Lenaj, Inc.

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

Filed By: Cohen, Eliezer

*** If oral argument is requested, the parties are directed to notify the clerk and opposing counsel at the time of the request which of moving defendants’ 30 Undisputed Material Facts, which of plaintiff’s Additional Material Facts and/or which of the objections to evidence will be addressed at the hearing. The parties should be prepared to point to specific admissible evidence which is claimed to show the existence or non-existence of a triable issue of material fact. ***

Defendants Lenaj, Inc., et al.’s motion for summary judgment or in the alternative, summary adjudication of the nine individual causes of action alleged by plaintiff is GRANTED IN PART and DENIED IN PART, as follows.

Plaintiff’s counsel failed to comply with CRC Rule 3.1350(g), requiring a single volume of evidence (including all declarations) with a table of contents when evidence exceeds 25 pages, and with Rule 3.1116(a)-(c), relating to the use of deposition testimony as an exhibit.

Factual Background

This action arises out of plaintiff’s employment with defendant Lenaj, Inc., alleged to be owned and/or controlled by defendants by the two individual defendants (Liyakth (or Lee) and Najma Merchant) or their alter ego. Lenaj, Inc. is a small marketing business with 5-7 employees. Plaintiff was initially employed by Lenaj for several months in 2010 and was later re-hired in April 2013 as Lee Merchant’s personal assistant.

Plaintiff was terminated in October 2014.

Plaintiff commenced the present action on 9/30/2015. The complaint purports to assert nine causes of action for (1) hostile work environment, (2) retaliation, (3) failure to prevent, (4) assault and battery, (5) failure to provide meal periods, (6) failure to provide rest periods, (7) failure to provide itemized wage statements, (8) failure to pay wages upon termination and (9) unfair competition under Business & Professions Code §17200 et seq.

Defendants now move for summary adjudication of each individual cause of action on various grounds noted below, claiming that there are no triable issues of material fact and that defendants are entitled to judgment as a matter of law on each cause of action so as to mandate summary judgment as well.

Plaintiff opposes the motion, primarily arguing that there are numerous triable issues of material fact which preclude summary adjudication of each cause of action and summary judgment of the entire complaint.

Objections to Evidence

Plaintiff timely filed no written objections to evidence in conformity with CRC Rule 3.1354. To the extent plaintiff has also “objected” to a number of defendants’ Undisputed Material Facts on various grounds including relevance, such objections are overruled because objections are properly directed solely at evidence. (See, CRC Rules 3.1352, 3.1354.)

Defendants’ written objections to plaintiff’s evidence are overruled except for objection Nos. 1, 9-12 and 13, each of which is sustained. To the extent defendants have also “objected” to one or more of plaintiff’s Additional Material Facts themselves on various grounds including relevance, such objections are overruled because objections are properly directed solely at evidence. (See, CRC Rules 3.1352, 3.1354.)

Analysis

Harassment/Hostile Work Environment. Defendants’ seek summary adjudication of the first cause of action for hostile work environment on the grounds that (1) the allegedly offensive comments used by Lee Merchant were directed at plaintiff and were motivated by her gender, and (2) the allegedly offensive comments were neither objectively severe nor pervasive so as to create a hostile work environment. As support for these grounds, defendants cite Undisputed Material Fact (“UMF”) Nos. 1-19.

The opposition insists that Mr. Merchant’s derogatory comments (e.g., bitch, stupid bitch, dumb bitch, etc.) were directed at women and sometimes plaintiff herself and that he on a daily basis treated women including plaintiff in a crude, offensive manner by routinely confronting and aggressively yelling at them while treating men noticeably differently. Plaintiff also contends that defendants’ UMF Nos. 1, 5-7, 9, 11-15 and 17-19 are disputed.

Even assuming defendants’ moving papers were sufficient to satisfy their initial burden under Code of Civil Procedure §437c(p)(2) and to shift to plaintiff the burden to produce evidence sufficient to demonstrate the existence of at least one triable issue

of material, the court finds that plaintiff met her burden of production particularly in light of California law requiring the evidence offered in opposition to summary judgment/adjudication to be construed liberally while the evidence in support of the motion is construed strictly. (See, e.g., DiLoreto v. Bd. of Education (1999) 74 Cal.App.4th 267; Alvarez v. State of California (1999) 75 Cal.App.4th 903.) In short, the evidence cited in opposition is sufficient to create a triable issue of material fact on the question of whether Mr. Merchant’s conduct was directed at plaintiff, whether it was motivated by plaintiff’s gender and whether his conduct was either so severe or so pervasive as to create an objectively hostile work environment. In particular, the court refers to the evidence offered in response to UMF Nos. 9, 11, 13-15 and 17-18. Although plaintiff apparently testified that Mr. Merchant also made derogatory comments about at least one male employee, this alone does not necessarily preclude plaintiff from being able to demonstrate that Mr. Merchant’s offensive conduct and words toward women including plaintiff was gender-motivated.

Accordingly, summary adjudication on the specific grounds advanced by defendants must be denied as to the first cause of action.

Retaliation. Defendants moves for summary adjudication of the second cause of action on the ground that plaintiff cannot establish she was terminated as a consequence of complaining about Mr. Merchant’s abusive and harassing conduct as she was terminated for insubordination and a failure to comply Mr. Merchant’s instruction to go home for the day. For unknown reasons, defendants rely on the same 19 UMF offered in connection with the preceding harassment cause of action even though the bulk of these 19 UMF primarily relates to the existence/non-existence of severe or pervasive harassment rather retaliation and only the final three appear relevant to the relevant to the question of why plaintiff was terminated.

In opposition, plaintiff maintains that she can establish a causal nexus between her complaints of a hostile work environment and adverse employment action including her termination. She adds that aside from being terminated, plaintiff was previously denied pay raises because of her complaints about Mr. Merchant’s offensive conduct (although the retaliation cause of action is by its own terms limited to a singular allegation that plaintiff’s employment was terminated because she complained about a hostile work environment (Compl., ¶34)). The opposition further insists that there is a triable issue of fact over whether plaintiff’s ongoing complaints were a motivating factor in the ultimate decision to terminate her employment and that a number of the 19 UMF proffered by defendants are in dispute.

The court holds that defendants are not entitled to summary adjudication of the retaliation cause of action either. Before addressing the merits of defendants’ contentions, it should be noted that plaintiff cannot defeat summary adjudication of this cause of action based on matters beyond the scope of the complaint and as noted above, the retaliation cause of action is limited to the claim that plaintiff was terminated because of her complaints about a hostile work environment, thereby precluding plaintiff from raising for the first time a previously-unpled adverse employment action as support for the retaliation cause of action. (See, e.g., FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381 [the pleadings are the starting point in a motion for summary judgment/adjudication proceeding as the pleadings effectively define what facts are “material” to the case and which are not].)

Under Guz v. Bechtel National Inc. (2000) 24 Cal.4th 317 and other relevant

precedent, a plaintiff establishing each of the prima facie elements for retaliation under the FEHA creates an initial presumption of actionable retaliation which may be rebutted by an employer who can demonstrate a legitimate, non-retaliatory reason for the alleged adverse employment action. (See, e.g., Guz, at 355-356.) Assuming the employer is successful in rebutting the presumption of retaliation, the employee then bears the ultimate burden to produce evidence sufficient to enable a factfinder to reasonably conclude that the stated legitimate, non-retaliatory reason was either untrue or was mere pretext for an intent to retaliate against the employee for engaging in some protected activity. (See, e.g., Guz, at 356-359; Horn v. Cushman & Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 806-807; Bareno v. San Diego Community College District (2017) 7 Cal.App.5th 546, 560.)

In the case at bar, the Court finds that plaintiff has made a sufficient prima facie showing to give rise to a presumption of retaliation particularly since this initial burden has been described as “not onerous” (see, e.g., Texas Dept. of Community Affairs v. Burdine (1981) 450 U.S. 248, 253) and so the next inquiry is whether defendants here have successfully rebutted this presumption of retaliation employer with a legitimate, non-retaliatory reason for terminating plaintiff’s employment on 10/8/2014. According to the moving papers, plaintiff was terminated for insubordination and a failure to comply Mr. Merchant’s instruction to go home for the day and this, if proven, would appear sufficient to rebut the initial presumption of retaliation but the question is whether there are any triable issues of material fact with respect to this legitimate, non-retaliatory reason for termination. Coupled with the requirement to construe the evidence in opposition liberally, plaintiff has met her burden of creating triable issues of fact relative to the non-retaliatory reason cited by defendants for the decision to terminate plaintiff. In particular, unlike most employment cases presented in summary judgment/adjudication motions, the decision to terminate plaintiff in this matter was not the result of a reasoned, deliberative process but rather it appears to have been made in the midst of a heated argument between Mr. Merchant and plaintiff during which the evidence cited in opposition indicated the latter requested the former to stop yelling at her. Moreover, even if there were no triable issue with respect to the offered legitimate, non-retaliatory reason for terminating plaintiff, the evidence now in the record is sufficient to enable to a reasonable trier of fact to conclude that defendants’ reason was either false or mere pretext for plaintiff’s attempt to stop what she believed was a hostile workplace prohibited by law. (See, e.g., Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1043 [“It is well established that a retaliation claim may be brought by an employee who has complained of or opposed conduct that the employee reasonably believes to be discriminatory, even when a court later determines the conduct was not actually prohibited by the FEHA.”])

Failure to Prevent Harassment/Retaliation. According to defendants, this cause of action fails because plaintiff cannot prevail on either of her first two causes of action for hostile work environment or retaliation and again relies on the same 19 UMF cited in connection with the two preceding causes of action. Since the court has already found triable issues of fact with respect to both of the first two causes of action, summary adjudication must also be denied as to the third cause of action as well.

Assault and Battery. This cause of action is directed against Mr. Merchant only and he contends he is entitled to summary adjudication on the grounds that merely yelling and using curse words in the workplace does not constitute actionable assault or battery and that plaintiff admits she was never struck by Mr. Merchant. The sole support for defendant’s assertion is UMF 11, which states in its entirety:

Burnett alleges that Lee [Merchant] would occasionally get “so loud and aggressive” that she was fearful that he might hit her, even though Lee never hit Burnett, never suggested that he would harm her, and Burnett never saw Lee hit any other employee.

Summary adjudication will be denied as to the assault claim because the evidence now before the court is sufficient to establish the prima facie elements of assault since the evidence, when construed liberally, reveals that Mr. Merchant often acted in a loud, aggressive manner toward employees and that plaintiff as well as others had feared physical violence might occur in the workplace. However, summary adjudication must be granted as to the alleged battery claim as it is undisputed that Mr. Merchant never actually committed an offensive touching of plaintiff. (See, e.g., Lilienthal & Fowler v. Superior Court (Karr) (1993) 12 Cal.App.4th 1848, 1854-1856 [despite language of Code of Civil Procedure §437c(f), trial court may determine merits of summary adjudication motions “involving separate and distinct wrongful acts which are combined in the same cause of action”].)

Failure to Provide Meal and Rest Periods. Defendants maintain that these fifth and sixth causes of action fail because plaintiff was provided all meal and rest breaks required by Labor Code §512 and because under California Supreme Court precedent, an employed need not proactively ensure that each employee actually take the specified breaks but only offer them. In particular, defendants insist they have had a longstanding policy which specified the requisite breaks and in 2014, the policy was updated with a memorandum stating that an employee should leave any meeting which coincided with a lunch break. Additionally, the moving papers contend plaintiff was never deprived of her breaks and therefore, there is “insufficient evidence” to support the allegations plaintiff was denied any meal or rest period. Defendants rely on UMF Nos. 2, 4 and 20-28.

The opposition contends that there is no evidence of a writing tending to show a longstanding policy on the required meal and rest breaks or that the 2014 memorandum was an update to an existing policy, which itself fails to comply with California law. Regardless, plaintiff insists there were numerous meal and rest break violations, as reflected in the evidence cited in response to UMF Nos. 20-22, 24-25 and 27-28.

Given that the evidence in opposition must be construed liberally, the court concludes that plaintiff has met her burden of producing evidence sufficient to demonstrate triable issues of material fact which mandate denial of summary adjudication of the causes of action based on Meal and Rest Periods. First, the Dobish testimony cited in response to UMF 20 creates a triable issue over whether defendants had a written policy regarding employees’ right to take meal and rest breaks at all times since the company was started in 2000, something which is reinforced by the 4/21/2014 email from Mr. Merchant (discussed in UMF 21) which states, “This email is to reestablish some basic ground rules and policies” (underline added for emphasis) and which at least infers the policies identified (including meal and rest breaks) were not in place for some period of time before 4/21/2014. (See, e.g., Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 252 (citing Weil & Brown, Civil Procedure Before Trial, Ch.10:95.1) [moving party’s inclusion of facts in separate statement effectively concedes each fact’s “materiality,” whether intended or not, and if there is a triable dispute relating to any one, the motion must be denied].)

Second, plaintiff expressly testified at Pages 46-48 that even after the 4/21/2014 email “reestablish[ing] some basic ground rules and policies” she only “receive[d]” a lunch break “once or twice [a week] when [Mr. Merchant] was in the office” due to work but when he was out, she would be able to take a lunch break and she was also often required to work through her rest breaks, despite the smokers in the office getting their breaks. Similarly, Ms. Dobish testified at Pages 32-34 that all employees routinely had their lunch breaks interrupted by work obligations and plaintiff’s time records show a number of days on which she was entitled to take a meal break but did not. While it may be that some or even most of these occasions when plaintiff did not clock out for a meal break were due to plaintiff choosing to go without a break, defendants have failed to produce evidence sufficient to establish that none of these occasions were a consequence of work demands and thus, defendants are not entitled to summary adjudication on the grounds plaintiff never suffered a violation of the meal and rest breaks established by law.

Unfair Competition per B&P Code §17200. This cause of action is explicitly premised on the claims that defendants failed to provide plaintiff with the required meal and rest breaks discussed above. Defendants seek summary adjudication of the §17200 claim on the grounds it is duplicative of the Meal and Rest Period causes of action and all employees were offered the mandatory breaks. As support, defendants cite UMF Nos. 2, 4-5 and 20-28.

The court rejects defendants’ first contention because, although the §17200 claim is premised on the same violations alleged in the meal and rest break causes of action, this is not impermissible. First, it is well established that a §17200 cause of action may be based on violations of other laws (see, e.g., People ex rel. Lockyer v. Fremont Life Insurance Co. (2002) 104 Cal.App.4th 508 [action based on §17200 “borrows” violations of other laws and treats these violations as unlawful business practices which are independently actionable and subject to the distinct remedies provided by the statute]) and regardless, it provides remedies (i.e., restitution and injunctive relief) that are not directly available under the Labor Code, which focuses on monetary compensation. Therefore, the §17200 is not genuinely duplicative as suggested by the moving papers. Moreover, as explained above, there are triable issues relating to whether defendants had at all relevant times a policy of providing employees with the meal and rest breaks required by law and whether plaintiff in particular was ever improperly denied the opportunity to take such breaks. Accordingly, summary adjudication shall be denied as to the §17200 cause of action too.

Failure to Provide Itemized Wage Statements. The gist of this cause of action is that the wage statements which plaintiff received from defendants were deficient inasmuch as they failed to reflect the premiums/penalties due for missed meal and rest periods. According to defendants, this cause of action must fail since (1) plaintiff was at all times provided the requisite meal and rest periods, (2) even if meal and rest period penalties were owed, Labor Code §226 does not require an employer to include on a wage statement a list of meal and rest periods taken by the employee and (3) meal and rest period premiums are not wages but rather a penalty, thereby obviating the need to include them on a wage statement. As support for these grounds, defendants offer UMF Nos. 2, 4-5 and 20-28.

The court will deny summary adjudication of this cause of action. First, as demonstrated above, there are triable issues of fact relating to whether plaintiff was

denied one or more mandatory meal or rest breaks. Second, defendants’ suggestion that wage statements need not list the meal and rest periods actually taken by plaintiff misses the mark since this is not even what is alleged to be the violation giving rise to this cause of action. Instead, by its own terms, the cause of action asserts that plaintiff’s wage statements failed to include an itemization for the penalties allegedly due as a result of being denied the requisite work breaks.

Next, defendants provide no relevant legal authority for the proposition that meal and rest premiums need not be included on a wage statement merely because these premiums are penalties rather than “wages.” After all, California law requires a number of details on a wage statement which do not constitute “wages” themselves. (See, e.g., Labor Code §226(a) [requiring “accurate itemized statement in writing showing (1) gross wages earned, (2) total hours worked by the employee…, (3) the number of piece-rate units earned and any applicable piece rate if the employee is paid on a piece-rate basis, (4) all deductions, provided that all deductions made on written orders of the employee may be aggregated and shown as one item, (5) net wages earned, (6) the inclusive dates of the period for which the employee is paid, (7) the name of the employee and only the last four digits of his or her social security number or an employee identification number other than a social security number, (8) the name and address of the legal entity that is the employer…, and (9) all applicable hourly rates in effect during the pay period and the corresponding number of hours worked at each hourly rate by the employee…” and “shall be recorded in ink or other indelible form, properly dated, showing the month, day, and year, and a copy of the statement and the record of the deductions shall be kept on file by the employer for at least three years at the place of employment or at a central location within the State of California.”]

Regardless, Labor Code §227(c) specifically provides that when an employer does not provide a meal or rest break, “the employer shall pay the employee one additional hour of pay at the employee’s regular rate of compensation” and thus, this court concludes such premiums must be included on a wage statement even if fundamentally a penalty. This conclusion is reinforced by the recent decision of Lubin v. The Wackenhut Corp. (2016) 5 Cal.App.5th 926, which indicated that a wage statement claim based on the employer’s failure to include dates of the pay period, regular and overtime rates of pay and premium wages for missed meal and rest periods was amenable to class action treatment, thereby suggesting these are valid bases for wage statement claims against an employer.

For all these reasons, summary adjudication is denied as to this wage statement cause of action.

Failure to Provide Wages Upon Termination. This last cause of action alleges that plaintiff was not paid all wages which were due her when terminated on 10/8/2014 because she was never paid for premium wages for any missed meal and rest breaks. Defendants seek summary adjudication on the grounds that (1) plaintiff was given her final paycheck on 10/9/2014, (2) plaintiff was never denied any meal and rest periods and (3) meal and rest period penalties are not under the Labor Code “wages” which must be paid upon termination. Defendants rely on offer UMF Nos. 5, 18-19 and 29-30.

Summary adjudication of this cause of action shall be denied as well. There are triable issues of fact on the question of whether plaintiff was ever denied any meal and rest

breaks and the court has already rejected defendants’ suggestion that payments due for missed meal and rest periods do not constitute wages which must be paid promptly upon termination. After all, Labor Code §227(c) requires an employer who does not provide a meal or rest break to pay the affected employee(s) one additional hour of pay at the employee’s regular rate of compensation and Lubin supports plaintiff’s assertion that any premiums due should be considered “wages” for the purposes of this cause of action.

Conclusion

As detailed above, defendants’ motion for summary adjudication is granted as to plaintiff’s battery claim but is denied as to all other causes of action currently alleged. Since summary adjudication is not granted as to all causes of action, the alternative motion for summary judgment must also be denied.