2015-00175120-CU-WT

Steve Sansen vs. Aerojet Rocketdyne, Inc.

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

Filed By: Petersen, Clarisse C.

*** 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 Issues identified in the Notice of Motion and which of the Undisputed Material Facts offered by the moving defendants and/or the 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. ***

Defendants Aeorojet Rocketdyne, Inc. (“ARI”) and Steve Hill’s (“Hill”) (collectively “Defendants”) motion for summary judgment, or in the alternative, summary adjudication is ruled upon as follows.

1. Overview

This is an employment action. Plaintiff Steve Sansen alleges causes of action for: (1) Disability Discrimination, (2) Failure to Accommodate, (3) Failure to Engage in the Interactive Process, (4) Age Discrimination, (5) Age Harassment, (6) Retaliation in Violation of FEHA, (7) Failure to Prevent, (8) Violation of Cal. Family Rights Act (“CFRA”), (9) Wrongful Termination in Violation of Public Policy, (10) Slander, and (11) Libel.

Plaintiff alleges that he was discriminated against due to his age (47), and because he had a hernia and work-related stress. He further alleges that ARI Violated the CFRA by denying him leave and penalizing him for taking time off to care for his wife, who had a brain injury and had undergone brain surgery. He alleges that ARI wrongfully terminated him for based on his age, disability, taking/requesting CFRA and FMLA leave, and his whistleblowing about serious environmental health hazards. He alleges that ARI and Hill slandered and defamed him.

Plaintiff was terminated on March 19, 2014.

Trial is scheduled for June 24, 2019.

2. Defendants’ Defective Separate Statement

A trial court has the power to “exercise a reasonable control over all proceedings connected with the litigation before it. Such power necessarily exists as one of the inherent powers of the court and such power should be exercised by the courts in order to insure the orderly administration of justice.” (Hays v. Superior Court (1940) 16

Cal.2d 260, 264.) This inherent power also extends to the consideration of summary judgment motions. (See Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 289-290; see also Reeves v. Safeway Stores, Inc. 121 Cal.App.4th 95, 106 [“trial courts have the inherent power to strike proposed ‘undisputed facts’ that fail to comply with the statutory requirements and that are formulated so as to impede rather than aid an orderly determination of whether the case presents triable material issues of fact.”].) “The deficiencies in summary judgment papers can appear in a variety of places, and the approaches taken by the courts to address the deficiencies can vary as well, limited only by the inspiration or creativity of the particular law and motion judge-and, of course, due process.” (Nazir, at 290.)

In most instances in ruling on motions submitted to the Court, the Court merely notes in the tentative ruling the deficiencies in the moving and opposing papers and proceeds to conduct its review and adjudication since generally those deficiencies do not impede the Court’s review. In this instance, as will be discussed below, Defendants have submitted a separate statement that is so defective that the Court believes that it both mandates comment and warrants that the Court exercise the inherent control and discretion established in Nazir.

Defendants’ separate statement fails to comply with CRC Rule 3.1350(d)(3) and (f)(2), respectively, which require the citation to evidence in support of each material fact and each material fact claimed to be disputed include reference to the exhibit, title, page, and line numbers, so the Court need not waste its finite resources scouring the moving volumes of evidence in an attempt to find the relevant exhibit(s) and then the relevant line(s). “Separate statements are required not to satisfy a sadistic urge to torment lawyers, but rather to afford due process to opposing parties and to permit trial courts to expeditiously review complex motions for [summary adjudication] and summary judgment.” (Nazir, at 251.)

Here, Defendants’ exhibits are attached to two declarations: (1) the Declaration of Bren Thomas (“Thomas Declaration”), and (2) the Declaration of Michael Bunter (“Bunter Declaration”). The Thomas Declaration attaches Exhibits L through P. The Bunter Declaration attaches Exhibits A through K. Yet, Defendants’ separate statement does not cite to either the Thomas Declaration or the Bunter Declaration. Rather, Defendant cites to “Plaintiff’s depo, 19:24-25”, “Plaintiff’s Depo, Exh. 2”, “Plaintiff’s Response to Form Interrogatory No. 207.2” or “Defendant’s Production AR000292. . .” Defendants fail to identify which declaration the cited evidence is attached to or the exhibit letter under which the evidence is labeled, thereby, impeding rather than aiding the orderly determination of whether the case presents triable material issues of fact.

For example, UMF 12 cites to “Plaintiff Depo., Exhs 3, 4, 27.” Given that the Separate Statement failed to identify the declaration to which the exhibits were attached, the Court logically believed that the exhibits would be attached to Plaintiff’s deposition transcript. Not so. The Court located Plaintiff’s deposition transcripts which are

attached as Exhibits L and M to the Thomas Declaration. There are no deposition Exhibits 3, 4 and 27 included in Exhibits L and M. The Court observes that attached as Exhibits B, C, or D, respectively, to the Bunter Declaration are documents which appear to be stamped with deposition exhibit numbers 3, 4, or 27, respectively. These may be the referenced exhibits, however, Bunter’s Declaration does not state that Exhibits B, C, or D are in fact Plaintiff’s deposition exhibits 3, 4, or 27. Rather, Bunter’s Declaration states, for example, that Exhibit B is “a true and correct copy of Plaintiff’s Employee Action Record, dated July 18, 2013.” Indeed, there is no declaration attesting that Exhibits B, C, or D are in fact Plaintiff’s deposition exhibits 3, 4, or 27. And, the Court will not assume so.

UMF 29 cites to “Defendant’s Production AR000292.” AR000292 is not specifically referenced in either the Thomas or Bunter Declaration. The Court was able to locate AR000292 which is included within Exhibit K to the Bunter Declaration. The Bunter Declaration identifies Exhibit K as “true and correct copies of select documents produced by Aerojet Rocketdyne in discovery in this lawsuit.

The Court encountered similar problems with UMFs 2, 5, 11, 13, 14, 15, 22, 29 and 30.

Defendants’ faulty approach to their separate statement requires that the Court comb through both of the declarations and exhibits attached thereto, and cross-reference them with each UMF to find the cited evidence. These deficiencies exist in most of the issues presented by Defendants. The only unaffected issues are issue nos. 17, 18, 28, 29, 30 and 31. Given that there are 32 issues for adjudication with a 74 page separate statement, the Court declines to waste its finite resources and do Defendants’ work for them.

The Court also observes that Plaintiff’s separate statement in support of his opposition has been rendered completely unhelpful since his memorandum of points and authorities fails to cite to the corresponding number for the additional material fact in the separate statement.

3. Objections to Evidence

Pursuant to CCP §437c(q), the Court will rule on only those objections to evidence that it deems material to its disposition of the motion.

Defendants’ objection nos. 142 and 188 are OVERRULED.

Plaintiff’s objection nos. 7-17 to the Declaration of Michael Bunter (“Bunter”) are SUSTAINED as hearsay to which no exception applies and lack of foundation. At issue here are Exhibits A – K to Bunter’s declaration. Bunter attempts to introduce certain records as ARI’s business records. Bunter avers that he is the Vice President of Human Resources Business Partners and Labor Relations at ARI. Prior to that, he was ARI’s Senior Director of Human Resources. He also acts as a custodian for

employee personnel files. He is “familiar with the files and records created and maintained by Aerojet Rocketdyne with respect to Plaintiffs prior employment with the Company.” He endeavors to authenticate the documents as business records by stating the Exhibits are “are true and correct copies of select business records that were created and kept by Aerojet Rocketdyne in the ordinary course of its business.” (Declaration of Michael Bunter.)

Bunter’s declaration is insufficient to invoke the exception to the hearsay rule. Evid. Code §1270 provides that for the business records to apply, the following must be shown:

· The writing was made in the regular course of a business [see Evid Code § 1270 (“business” defined)];

· The writing was made at or near the time of the act, condition, or event;

· The custodian or other qualified witness testifies to its identity and the mode of its preparation; and

· The sources of information and method and time of preparation were that indicate its trustworthiness.

Here, there is no showing that: (1) the writing was made at or near the time of the act, condition, or event, or (2) the sources of information and method and time of preparation were that indicate its trustworthiness. ARI’s reliance on Ketalaris v. County of Orange (2001) 92 Cal.App.4th 1211 is misplaced since it did not involve the business records exception to the hearsay rule. Unifund CCR, LLC v. Dear (2015) 243 Cal.App.4th Supp. 1 is also inapposite since it involved the authentication of credit card billings and bank statements. Notably, the court agreed that “bank statements prepared in the regular course of banking business and in accordance with banking regulations are in a different category than the ordinary business and financial records of a private enterprise. It is common knowledge that bank statements on checking accounts are prepared daily and that they consist of debit and credit entries based on the deposits received, the checks written and the service charges to the account.” (Id. at *8 [emphasis added].)

Thus, where Exhibits A – K to Bunter’s declaration are used to support an issue, ARI fails to satisfy its initial burden.

The deficiencies with ARI’s separate statement coupled with the Court sustaining Plaintiff’s objection nos. 7-17 to the Declaration of Michael Bunter requires that the motion for summary adjudication be DENIED as to: (i) Disability Discrimination [issue nos. 1-4], (ii) Failure to Accommodate [issue nos. 5-8], (iii) Failure to Engage in the Interactive Process [issue nos. 9-12], (iv) Age Discrimination [issue nos. 13-15], (v) Age Harassment (as to ARI) [issue no. 16], (vi) Failure to Prevent [issue nos. 21-23],

(vii) Violation of Cal. Family Rights Act [issue nos. 24-26], (vii) Wrongful Termination in Violation of Public Policy [issue no. 27]. The motion for summary adjudication is also

DENIED as to issue no. 32 regarding punitive damages.

The Court will address the merits of issue nos. 17, 18, 28, 29, 30 and 31.

4. Issue No. 17: “Plaintiff cannot establish his Fifth Cause of Action for Age Harassment against Defendant Steve Hill because Mr. Hill cannot be held liable under FEHA.”

Defendants insist that Hill cannot be liable for age harassment under FEHA because he is an individual and not the employer. Defendants cites to three cases, none of which apply here. Reno v. Baird (1998) 18 Cal.4th 640 and Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, held that non-employer individuals may not be personally liable for employment discrimination, not harassment. Jones v. Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158, held that non-employer individuals may not be personally liable for FEHA retaliation.

Defendants’ position is also contrary to the express provisions of FEHA. Gov’t Code §12940(j)(3) states “[a]n employee of an entity subject to this subdivision is personally liable for any harassment prohibited by this section that is perpetrated by the employee, regardless of whether the employer or covered entity knows or should have known of the conduct and fails to take immediate and appropriate corrective action.” (See also McClung v. Employment Development Dept. (2004) 34 Cal.4th 467, 470.)

The motion for summary adjudication is DENIED.

5. Issue No. 18: “Plaintiff cannot establish his Sixth Cause of Action for Unlawful Retaliation Based on Age and Disability because Plaintiff did not engage in a protected activity.”

Plaintiff alleges that “[d]uring his employment by Defendants, Plaintiff opposed and objected to Defendants’ disability based (failure to accommodate, discrimination and harassment) and age based (discrimination and harassment).” (TAC, ¶ 139.) He alleges that “[a]fter Plaintiff voiced his complaints and objections, or sought protections of and/or to exercise his rights to disability and age protection under the Fair Employment & Housing Act in retaliation he was subjected to adverse employment actions.” (TAC, ¶ 140 [emphasis added].)

Defendants’ UMF 28 states that “Plaintiff did not complain to Aerojet about age or disability discrimination, harassment, or retaliation during his employment.”

In opposition, Plaintiff advances that his request for leave accommodations on February 17, 2014 (UMF 28, Declaration of Steve Sansen, ¶ 112, Ex. 7) is a protected activity.

Gov’t Code §12940(m)(2) prohibits an employer from retaliating or otherwise discriminating against a person for requesting accommodation, regardless of whether the request was granted.

Plaintiff’s complaint can be construed to allege that he was retaliated against for requesting accommodations for his disability. (See TAC, ¶ 140 [“[a]fter Plaintiff voiced his complaints and objections, or sought protections of and/or to exercise his rights to disability and age protection under the Fair Employment & Housing Act in retaliation he was subjected to adverse employment actions.”].)

Having failed to confront this allegation in their moving papers, Defendants fail to satisfy their initial burden. Additionally, viewing the evidence most favorably to Plaintiff, his February 17, 2014 letter can be construed as opposing ARI’s disability discrimination, disability harassment, and also as a request for accommodation. (Declaration of Steve Sansen, ¶ 112, Ex. 7)

Defendants’ motion for summary adjudication is DENIED.

6. Issue No. 28: “Plaintiff cannot establish his Tenth Cause of Action for Slander because Defendants had a conditional or qualified privilege to communicate without malice with persons who have common interest in the subject matter of the communication.”

Plaintiff alleges that Defendants defamed him by making oral statements that:

impliedly stated that: Plaintiff was engaged in time card fraud; intentionally falsified his time cards; that he dishonestly attempted to characterize absences as FMLA or otherwise justified absences; that Plaintiff had not communicated with Aerojet regarding the nature of his health issues and his need for leave (as-required by company policy); that he essentially abandoned job and/or was “AWOL;” that Plaintiff had not informed Aerojet where he was, or why he was not at work (as required by policy); that he failed to comply with Aerojet’s policies and procedures regarding leave and injury reporting; that he failed to attend meetings that he was

notified of and physically able to attend; failed to provide to Aerojet necessary paper work within time limits; that he had falsely claimed he was hospitalized; that he failed to provide documentation supporting his absences, that he failed to provide information as to why documentation regarding his absences could not be provided; and that he failed to comply with Aerojet’s leave of absence Directives.

(TAC, ¶ 173.)

Defendants assert that the common-interest privilege applies, and absent a showing of

malice, they are immune from liability.

An employer’s communication of statements regarding an employee with persons who have a “common interest” in the subject of the communication is privileged as long as it is made without malice. (Civ. Code § 47(c), Deaile v. Gen’l Tel Co. of Cal. (1974) 40 Cal.App.3d 841, 846.) The privilege can be invoked, provided that the communication was made without malice. ‘“[M]alice has been defined as ‘a state of mind arising from hatred or ill will, evidencing a willingness to vex, annoy or injure another person.’ ” ( Brown, supra, 48 Cal.3d 711, 723.) In other cases, the California Supreme Court has explained: “ ‘ “The malice necessary to defeat a qualified privilege is ‘actual malice’ which is established by a showing that the publication was motivated by hatred or ill will towards the plaintiff or by a showing that the defendant lacked reasonable ground for belief in the truth of the publication and thereafter acted in reckless disregard of the plaintiff’s rights.” (McGrory v. Applied Signal Technology, Inc. (2013) 212 Cal.App.4th 1510, 1538.)

The common interest privilege has been determined to apply to statements by management and coworkers to other coworkers explaining why an employer disciplined an employee or as to the fitness of employee as a manager. (McGrory v. Applied Signal Tech. (2013) 212 Cal.App.4th 1510, 1538, citing Deaile v. General Tel. Co. of California (1974) 40 Cal.App.3d 841, 846; Cuenca v. Safeway San Francisco Employees Fed. Credit Union (1986) 180 Cal.App.3d 985, 996.)

The Court concludes that Defendants fail to satisfy their initial burden. First, Defendants fail to show that the people to whom the statements were made had a “common interest” in the statements. Defendants merely list a number of individuals who are either ARI employees or representatives of ARI’s union. Defendants make no effort to explain how these people had a common interest. (UMF 36.) For example, Defendants identify Eileen Robinson as an ARI employee, but fails to provide any facts showing that she had a common interest. Nor have Defendants explained how ARI’s union representatives shared a common interest. Moreover, Plaintiff contends that the statements were republished to administrative agencies, such as the Employment Development Department and Department of Fair Employment and Housing. (UMF 35.) Yet, Defendants again fail to provide any facts or analysis as to how these agencies had a common interest. Second, Defendants fail to satisfy their burden to show that there is no triable issue of material fact that the statements were made without malice. Defendants’ separate statement as to issue no. 28 is void of any UMFs regarding lack of malice.

The motion for summary adjudication is DENIED.

7. Issue No. 29: “Plaintiff cannot establish his Tenth Cause of Action for Slander because the alleged slanderous statements were unactionable opinion.”

An opinion is a “broad, unfocused and wholly subjective comment.” (Fletcher v. San Jose Mercury News (1989) 216 Cal.App.3d 172, 191.) “The essential difference between a statement of fact and a statement of opinion is that a statement of fact

implies a provably false factual assertion while a statement of opinion does not.” ( Gallagher v. Connell (2004) 123 Cal.App.4th 1260, 1270.) “The dispositive question a

court needs to answer in determining whether a false statement is actionable is: Could

a reasonable trier of fact conclude the published statements imply a provably false assertion?” (Edwards v. Hall (1991) 234 Cal.App.3d 886, 902-903.)

The Court concludes that most of the defamatory statements alleged can imply a provably false assertion. The motion for summary adjudication is DENIED.

8. Issue No. 30: “Plaintiff cannot establish his Eleventh Cause of Action for Libel because Defendants had conditional or qualified privilege to communicate without malice with persons who have common interest in the subject matter of the communication.”

The motion for summary adjudication is DENIED for the same reasons set forth with respect to Issue No. 28.

9. Issue No. 31: “Plaintiff cannot establish his Eleventh Cause of Action for Libel because the alleged slanderous statements were unactionable opinion.”

The motion for summary adjudication is DENIED for the same reasons set forth with respect to Issue No. 29.

Having failed to obtain summary adjudication of all causes of action, the motion for summary judgment is DENIED.

This minute order is effective immediately. Plaintiff shall prepare a formal order pursuant to CRC Rule 3.1312 and CCP 437c(g).