2012-00121436-CU-WT

David DeLucchi vs. Dependable Highway Express Inc

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

Filed By: Posard, Mark S.

*** If oral argument is requested, the parties are directed to notify the clerk and
opposing counsel at the time of the request which of the 17 Undisputed Material
Facts offered by the moving defendant and/or the 20 Additional Material Facts
offered by plaintiff will be addressed at the hearing and the parties should be
prepared to point to specific evidence which is claimed to show the existence or
non-existence of a triable issue of material fact. ***

Defendant Dependable Highway Express, Inc.’s (“DHE”) motion for summary judgment
or alternatively, for summary adjudication of issues is GRANTED in part and DENIED
in part, as follows.

Both moving and opposing counsel are admonished for failing to comply with CRC
Rule 3.1350(g), which requires that all evidence, including declarations, when in
excess of 25 pages be bound in a single volume of evidence with a table of contents.

Moving counsel is admonished for failing to provide in the notice of motion the correct
address for Dept. 54.

Opposing counsel is admonished for failing to comply with CRC Rule 3.1110(b)(3)-(4).

This action arises out of plaintiff’s employment with DHE. Plaintiff was terminated in
January 2012 and in short, he alleges this termination was wrongful in that it was
motivated at least in part by (1) plaintiff’s prior complaints about DHE’s cash-only sales
transactions which plaintiff believed were illegal, (2) plaintiff’s medical condition and/or
disability and/or (3) plaintiff’s age which was at the time 64.

The First Amended Complaint (“1AC”) purports to assert only five (5) causes of action
(“COA”) for Disability Discrimination, Age Discrimination, Breach of Implied Contract,
Breach of Covenant of Good Faith and Fair Dealing, and Wrongful Termination in
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Violation of Public Policy. However, within the 1 COA for Disability Discrimination,
there are allegations that DHE violated the Fair Employment and Housing Act
(“FEHA”) “by terminating Plaintiff…on the basis of his disability, failing to engage in
good faith in the interactive process and failing to provide Plaintiff with a reasonable
accommodation.” (1AC, ¶27.)

DHE now moves for summary judgment of the entire complaint on the grounds that
there are no triable issues of material fact and that DHE is entitled to judgment as a
matter of law. Specifically, DHE contends plaintiff cannot establish a prima facie case
for age discrimination, disability discrimination or termination in violation of public
policy because (1) plaintiff himself does not believe he was terminated due to his age
or medical condition but rather only for complaining about activity he perceived to be
illegal; (2) plaintiff’s purported complaints began in 2009 and were ongoing through
2011 but there is no causal nexus between these complaints and the decision in
January 2012 to terminate him; and (3) plaintiff admits he had performance issues in
the months leading up to his termination. Additionally, DHE insists plaintiff cannot
prevail on his breach of implied contract or breach of the implied covenant of good
faith and fair dealing because he was an “at will” employee, he signed an
acknowledgment of his “at will” status and he has no evidence to overcome the
presumption established by Labor Code §2922 that he was an “at will” employee.
DHE also moves for summary adjudication of the five (5) individual COA asserted in
the 1AC on essentially the same grounds but also adds that DHE had a legitimate, non
-discriminatory reason for terminating plaintiff. With respect to this latter issue, DHE
cites an outside consultant’s report which concluded ‘plaintiff was guilty of gross
mismanagement for not doing his job, for not knowing what was going on in his own
department and for costing DHE money.’ In support of summary
judgment/adjudication, DHE offers Undisputed Material Fact (“UMF”) Nos. 1-17.

Plaintiff opposes the motion arguing first that he not only can but also has established
a prima facie case of both disability and age discrimination. The opposition claims the
moving papers overlook that plaintiff can also establish his disability discrimination
COA by showing DHE failed to engage in the interactive process and/or failed to
accommodate plaintiff’s disability/medical condition (as alleged in Paragraph 27 of the
1AC), both of which occurred here. Plaintiff further asserts he can rebut the “at will”
employment presumption and can show a causal link between his complaints of illegal
conduct and the decision to terminate him. Finally, the opposition maintains that
plaintiff’s job performance was satisfactory and the outside consultant’s report which
was critical of plaintiff was a pretext. In an attempt to defeat the present motion,
plaintiff characterizes a number of the 17 UMF advanced by DHE as “disputed” and
offers 20 Additional Material Facts (“AMF”) in an attempt to show triable issues of
material fact.

Objections to Evidence

Plaintiff’s four (4) written objections to evidence are overruled. First, the objections fail
to comply with CRC Rule 3.1354(b)(3) since plaintiff failed to quote or set forth the
objectionable evidence. Instead, plaintiff merely quoted the four (4) UMF at which the
objections are directed. Second, the evidence objected to does not constitute an
inadmissible “opinion on a question of law” but rather, the cited evidence (plaintiff’s
own deposition testimony) is admissible to support each of the four (4) UMF at issue
consistent with Code of Civil Procedure §437c(b)(1)’s provisions.

The Court overrules any additional purported objections to evidence asserted by
plaintiff in his opposition to DHE’s separate statement since they are not set forth
separately and do not otherwise comply with the specific requirements of CRC Rule
3.1354(b). Plaintiff’s counsel is also admonished for restating and rearguing in his
opposition to DHE’s separate statement plaintiff’s four (4) written objections to
evidence since this is expressly prohibited by Rule 3.1354(b).

DHE’s written objections to evidence were not considered by the Court as they were
not timely filed, having been filed on 10/15/2013 rather than at least five (5) days
before the hearing on this motion as required by Code of Civil Procedure §437c(b)(4)
and CRC Rule 3.1354(a).

The Court overrules any purported objections to evidence asserted in DHE’s
opposition to plaintiff’s separate statement of AMF since they are not set forth in a
separate document and they do not otherwise comply with the specific requirements of
CRC Rule 3.1354(b). The Court also notes that some of DHE’s purported objections
are in whole or part directed at plaintiff’s AMF themselves (see, e.g., DHE’s Resp. to
Pl. AMF Nos. 18, 25-27, 29, 32, 35, 37), rather than the evidence cited by plaintiff.
(CRC Rules 3.1352, 3.1354.) As such, the purported objections to plaintiff’s AMF are
overruled.

Motion for Summary Judgment

As noted above, DHE contends it is entitled to summary judgment on the entire 1AC
on multiple grounds including but not limited to plaintiff’s inability to establish a prima
facie case for disability discrimination inasmuch as plaintiff does not believe he was
terminated due to his disability/medical condition but rather due to his complaining
about activity perceived to be illegal. However, DHE’s moving papers do not address
at all plaintiff’s claims of disability discrimination based on DHE’s alleged failure to
engage in the interactive process and/or failure to provide a reasonable
accommodation for plaintiff’s disability/medical condition, as pled in Paragraph 27 of
the 1AC.

Because the moving papers failed to address these alleged bases for plaintiff’s
disability discrimination COA, DHE has necessarily failed to satisfy its initial burden of
production under Code of Civil Procedure §437c(p)(2) since DHE failed to demonstrate
(with admissible evidence) that plaintiff cannot as a matter of law prevail on the 1st
COA for Disability Discrimination. Consequently, DHE’s motion for summary judgment
must be denied regardless of any evidence offered by the opposition.

DHE asserts in its reply papers that plaintiff did not validly assert COA under either
Government Code §12940(m) or (n) (relating to the accommodation of disabilities and
the interactive process, respectively) despite amending the complaint on 1/17/2013.
While the Court agrees that these two claims could have and should have been better
pled, there can be no dispute that Paragraph 27 of the 1AC explicitly alleges not only a
failure to engage in the interactive process but also a failure to accommodate as against DHE. Defendant’s failure to timely challenge this form pleading by plaintiff is
deemed a waiver of all objections thereto and DHE’s failure to address in its moving
papers these theories of liability effectively precludes here summary judgment on the
entire complaint.

Motion for Summary Adjudication

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Issue 1. DHE seeks summary adjudication of the 1 COA for disability discrimination
because plaintiff himself does not believe he was terminated due to his medical
condition and because DHE had a legitimate, non-discriminatory reason for his
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termination. As support for summary adjudication of the 1 COA, DHE cites UMF Nos.
1-9.

However, summary adjudication of this COA for disability discrimination must be
denied for the same reasons that summary judgment of the entire complaint must be
denied. DHE failed to carry its initial burden of production under Code of Civil
Procedure §437c(p)(2) since neither DHE’s legal argument in its moving memorandum
of points & authorities nor its UMF Nos. 1-9 demonstrate that there is no merit to
plaintiff’s claims of failure to engage in the interactive process and failure to
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accommodate on which the 1 COA is in part based. Because DHE’s moving papers
failed to establish that DHE is entitled to judgment as a matter of law on the disability
discrimination COA, summary adjudication must be denied and the Court need not
consider any of the evidence offered in opposition to UMF Nos. 1-9 on which DHE
relies. The Court has, as noted above, rejected DHE’s contention that there is no
properly pled claim for failure to accommodate or failure to engage in the interactive
process in that DHE’s failure to timely challenge the 1AC effectively precludes DHE
from now objecting to the form of plaintiff’s pleading.

Even assuming arguendo DHE had met its initial burden under Code of Civil
Procedure §437c(p)(2), summary adjudication would still be denied as to this first COA
since plaintiff has presented evidence sufficient to demonstrate the existence of at
least one triable issue of material fact. This conclusion is reinforced by the well
established rule that the evidence offered in opposition to summary judgment must be
construed liberally while the evidence in support is construed narrowly. (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 particular, the Court finds that the evidence cited by
plaintiff in support of AMF Nos. 18, 22 and 31-33 is when construed liberally is enough
to show a triable issue of material fact with respect to UMF 1 (asserting that “plaintiff
does not believe he was terminated due to his medical condition). Although the cited
portion of plaintiff’s own deposition testimony does clearly support UMF 1, his other
deposition testimony (p.106:16-p.107:1) cited by the opposition in support of AMF 18
tends to show that plaintiff’s medical condition may have been a factor in DHE’s
termination decision. Indeed, AMF 31 states that plaintiff’s inability to keep his
department within its budget was “the most important factor” in the decision to
terminate and this fact, which DHE admits is “undisputed,” indicates there were other
factors which played a role in the termination decision. Moreover, AMF 22 supports
the inference that DHE also failed to engage in the interactive process and/or failed to
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accommodate plaintiff’s medical condition, either of which would support the 1 COA
for disability discrimination. Finally, AMF Nos. 32-33 relate to DHE’s treatment of other
employees and could in the eyes of a jury create an inference of some discriminatory
intent on the part of DHE. For all these reasons, summary adjudication must be and is denied as to the 1 COA
for disability discrimination.

Issue 2. DHE insists it is entitled to summary adjudication of the 2nd COA for age
discrimination since plaintiff is unsure whether he was terminated due to his age (64 at
the time) and since DHE had a legitimate, non-discriminatory reason for his
termination. In support for summary adjudication of this COA, DHE offers UMF Nos. 2-
10 and coupled with plaintiff’s failure to suggest otherwise, the Court finds that DHE
carried its initial burden of production relative to Issue 2, thereby shifting to plaintiff the
burden to produce admissible evidence showing at least one triable issue of material
fact.

Although the opposition contends that UMF Nos. 4-5 and 8-10 are “disputed,” this
Court finds no legitimate, material dispute over UMF Nos. 4-5 or 8-10. Thus, the sole
question here is whether plaintiff’s own AMF Nos. 18, 20-33 and/or 35 (identified in
response to UMF Nos. 9-10) and after a careful review of the evidence cited in support
of these AMF, the Court concludes that plaintiff has presented (just barely) sufficient
evidence to establish a triable issue of material fact with respect to the age
discrimination COA particularly when this evidence is construed liberally. Specifically,
the evidence offered by plaintiff in support of AMF 18 tends to infer that the reason for
his termination may have been something other than his job performance and this
inference is consistent with AMF 31 (a fact not disputed by DHE), which asserts that
plaintiff’s failure to keep his department within budget was “the most important factor”
in the decision to terminate him. Thus, plaintiff has provided evidence which shows
there were factors other job performance which led to his termination. Additionally,
AMF Nos. 23-24 and 30 are supported by evidence from which, when construed
liberally, a finder of fact could reasonably infer that plaintiff’s age contributed in part to
DHE’s decision to terminate him.

Based on the foregoing, the motion for summary adjudication of the 2nd COA for age
discrimination is denied.

Issue 3. DHE moves for summary adjudication of the 3rd COA for breach of implied
contract arguing that plaintiff has no evidence to rebut the legal presumption he was
an “at will” employee. As support, DHE relies on UMF Nos. 11-13. In short, these
UMF show that when he began his employment with DHE in 2004, plaintiff signed an
acknowledgment he was an “at will” employee (UMF 11); his employment status could
only be modified by a writing signed by an executive officer of DHE (UMF 12); and
plaintiff has admitted in verified discovery responses that he has “no documents” to
support his contention he was promised continued employment with DHE (UMF 13).
The Court finds that DHE’s evidence is sufficient to satisfy its initial burden of
production on Issue 3 and plaintiff nowhere argues to the contrary. Thus, the burden
is on plaintiff to produce evidence demonstrating a triable issue of material fact which
precludes summary adjudication on this third issue.

Plaintiff admits that these three UMF are “undisputed” but refers to his AMF 37, which
asserts that plaintiff was “led to believe he could expect to be employed by [DHE] until
he elected to retire so long as he followed directions, conducted himself properly, and
performed his job to the best of his abilities” and “he continued to provide services to
[DHE] with that understanding.” To support these claims, the opposition cites plaintiff’s
own declaration and his own deposition testimony. However, because neither AMF 37
itself nor the evidence cited as support identifies any writing signed by an executive officer of DHE which so much as suggests DHE considered plaintiff’s employment as
something other than “at will,” plaintiff has failed to establish the existence of any
triable issue of material fact with respect to Issue 3 and therefore, summary
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adjudication must be granted on the 3 COA for breach of implied contract.

Issue 4. DHE seeks summary adjudication of the 4th COA for breach of the implied
covenant of good faith and fair dealing because plaintiff was an “at will” employee.
DHE again cites UMF Nos. 11-13 as support for summary adjudication of this COA
and as discussed in connection with Issue 3 above, the opposition admits each of
these three UMF is “undisputed” but nevertheless contends that AMF 37 (i.e., plaintiff
was “led to believe he could expect to be employed by [DHE] until he…retire[d]…” and
“he continued to provide services to [DHE] with that understanding”) establishes the
existence of a triable issue of material fact with respect to Issue 4. However, because
plaintiff has failed to present admissible evidence sufficient to create even a triable
issue of material fact relating to the existence of any purported contract entitling him to
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continued employment with DHE, the 4 COA for breach of the implied covenant of
good faith and fair dealing fails as a matter of law and summary adjudication must be
granted as to this COA as well.

Furthermore, since plaintiff has failed to establish the existence of any contract
requiring DHE to have “good cause” for termination, no COA for breach of the implied
covenant of good faith and fair dealing lies and this COA may therefore be
disregarded. (Bionghi v. Metropolitan Water District (1999) 70 Cal.App.4th 1358,
1370.) Similarly, claims for the breach of the implied covenant may be disregarded
when they do nothing more than repeat and re-allege the same allegations set forth in
a companion claim for breach of contract. (Guz v. Bechtel National, Inc. (2000) 24
Cal.4th 317, 352.)

Issue 5. DHE maintains summary adjudication of the 5th COA for wrongful termination
in violation of public policy is appropriate because plaintiff cannot prove he was
terminated for complaining about allegedly illegal activity and DHE had a legitimate
reason for his termination. As support, DHE cited UMF Nos. 2-9 and 14-17 and
coupled with plaintiff’s failure to show otherwise, DHE has carried its initial burden of
production relative to Issue 5, which shifts to plaintiff the burden to produce evidence
creating at least one triable issue of material fact which precludes summary
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adjudication of the 5 COA.

Plaintiff insists UMF Nos. 4-5, 8-9 and 14 are “disputed” but the evidence cited in
opposition is insufficient to show any genuine material dispute over these five UMF.
However, the evidence cited in support of plaintiff’s own AMF Nos. 18, 27, 30 and 32
(listed in response to UMF 14) appears sufficient to establish the existence of several
triable issues of material fact with respect to the wrongful termination claim especially
since this evidence in opposition must be construed liberally. As discussed above, the
evidence listed in support of AMF 18 tends to show that plaintiff’s termination may
have been motivated by something other than mere job performance, an inference
which is consistent with AMF 31’s assertion (not disputed by DHE) that plaintiff’s failure
to adhere to the departmental budget was “the most important factor” for terminating
him. In other words, plaintiff has produced evidence that factors other job performance
contributed to his termination. Moreover, the evidence offered by plaintiff in support
AMF Nos. 27, 30 and 32 is, when construed liberally, enough to permit a trier of fact to
find that plaintiff’s “complaints” about the allegedly illegal cash sales by DHE
contributed at least partly to plaintiff’s ultimate termination. Consequently, plaintiff has met his burden of demonstrating a triable issue of material fact which mandates denial
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of summary adjudication of the 5 COA for wrongful termination.

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In light of the foregoing, summary adjudication is granted as to the 3 and 4 COA but
denied as to the remainder.

This minute order is effective immediately. Pursuant to CRC Rule 3.1312, counsel for
DHE to prepare an order which conforms to Code of Civil Procedure §437c(g).