Montanez Reagan Vs Natural Power Source S Llc

Case Number: 22STCV33677 Hearing Date: July 9, 2024 Dept: 58 Judge Bruce Iwasaki Department 58 Hearing Date: July 9, 2024 Case Name: Naomi Tomita v. City of Hawthorne, et al. Case No.: 22STCV33677 Motion: Motion for Summary Judgment and/or Summary Adjudication Moving Party: Defendant City of Hawthorne Responding Party: Plaintiff Naomi Tomita Tentative Ruling: The motion for summary judgment is denied. The motion for summary adjudication is denied. This is an employment law action based on alleged disability discrimination and retaliation. Plaintiff Naomi Tomita (Plaintiff) sues her former employer, Defendant City of Hawthorne (the City), alleging the following. During the course of her employment in the Office of the Hawthorne City Attorney, Plaintiff developed work-related injuries. Between January 2019 and August 2020 , she underwent procedures on her wrists, right elbow, and right shoulder for those injuries. Her treating physician eventually allowed her to return to work with restrictions. However, by November 5, 2021, those restrictions had been removed. Despite the fact that since March 2, 2021, she had been performing her duties without the need for accommodations, and her treating surgeon provided notes stating that she could return to work without any restrictions, the City (among other things) refused to allow her to continue to work as an Administrative Aide II or accommodate her for different positions. In addition, the City filed disability retirement paperwork for Plaintiff even though Plaintiff did not wish to retire. The operative complaint asserts only one cause of action for various violations of the Fair Employment and Housing Act (FEHA). To the extent each of those violations constitutes a separate cause of action, Plaintiff is bringing the following claims against the City: (1) discrimination based on actual or perceived disability, (2) retaliation for filing workers compensation claims and requiring reasonable accommodations, (3) failure to give reasonable accommodations, (4) failure to engage in a good faith interactive process, and (5) failure to prevent the discrimination and retaliation from occurring. The City now moves for summary judgment or, in the alternative, summary adjudication of each of those claims. Plaintiff opposes the motion. The motions for summary judgment and adjudication is denied. Evidentiary Issues: Plaintiffs objections to the Citys evidence are ruled as follows: Nos. 1, 2, 4-26 are sustained. No. 3 is overruled. LEGAL STANDARD The party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law. ( Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A triable issue of material fact exists if the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof. ( Ibid. ) When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment. ( Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal. App. 4th 463, 467; Code Civ. Proc., § 437c, subd. (c).) DISCUSSION Defendant moves for summary judgment or adjudication, arguing that Plaintiffs claims for disability discrimination (Issue Nos. 1-2), retaliation (Issue No. 3), failure to provide reasonable accommodation (Issue No. 4), failure to engage in interactive process (Issue No. 5), and failure to prevent discrimination and retaliation (Issue No. 6) have no merit. Separate Statement Requirements As an initial matter, Plaintiff argues that the Court should deny the motion because the Citys separate statement failed to comply with the California Rules of Court. California Rules of Court require that [i]f summary adjudication is sought, whether separately or as an alternative to the motion for summary judgment, the specific cause of action, affirmative defense, claims for damages, or issues of duty must be stated specifically in the notice of motion and be repeated, verbatim, in the separate statement of undisputed material facts . (Cal. Rules of Court, rule 3.1350(b) [emphasis added].) As Plaintiff points out, the Citys separate statement does not state Issue No. 1 and also fails to state, verbatim, the rest of the issues (Nos. 2-6). Nevertheless, the Court declines to reject the motion based on those defects because Plaintiff has not argued or explained how those defects impaired her ability to oppose the motion, and the defects are not substantive (i.e., Plaintiff is not arguing, for example, that the separate statement does not contain material facts). (See Truong v. Glasser (2009) 181 Cal.App.4th 102, 118 [holding that the trial court did not abuse its discretion by declining to reject the summary judgment motion based on the absence of headings within a separate statement of material facts because [t]he facts critical to the ruling were adequately identified, and [the plaintiffs had] not explained how any alleged deficiency in [the separate statement] impaired [their] ability to marshal evidence to show that material facts were in dispute &].) Disability Discrimination (Issue Nos. 1 and 2) Under the first two issues, the City argues that Plaintiff cannot establish a prima facie case for discrimination, and it had legitimate, non-discriminatory reasons for its actions. Government Code section 12940, subdivision (a) makes it unlawful [f]or an employer, because of the & physical disability & of any person, ... to discriminate against the person in compensation or in terms, conditions, or privileges of employment. In general, there are two types of illegal employment discrimination under FEHA: disparate treatment and disparate impact. ( Jones v. Department of Corrections & Rehabilitation (2007) 152 Cal.App.4th 1367, 1379.) Disparate treatment is intentional discrimination against one or more persons on prohibited grounds. [Citations.] & [On the other hand] disparate impact, & [takes place, for example, when] regardless of motive, a facially neutral employer practice or policy, bearing no manifest relationship to job requirements, & [has] a disproportionate adverse effect on members of the protected class. ( Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 354, fn. 20 ( Guz ) [italics removed].) Here, the complaint alleges that Plaintiff suffered disparate treatment (intentional discrimination based on disability). California uses the three-stage burden-shifting test established by the United States Supreme Court for trying claims of discrimination based on a theory of disparate treatment, known as the McDonnell Douglas test. ( Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1004 ( Scotch ); McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 802804.) This so-called McDonnell Douglas test reflects the principle that direct evidence of intentional discrimination is rare, and that such claims must usually be proved circumstantially. ( Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354.) The McDonnell Douglas test is inapplicable where the plaintiff presents direct evidence of discrimination, that is, evidence which, if believed, proves the fact of discriminatory animus without inference or presumption. ( Trop v. Sony Pictures Entertainment, Inc. (2005) 129 Cal.App.4th 1133, 11441145.) Under the first step of the McDonnell Douglas test, the plaintiff may raise a presumption of discrimination by presenting a prima facie case, the components of which vary depending upon the type of discrimination alleged. [Citation.] ( Zamora v. Security Industry Specialists, Inc. (2021) 71 Cal.App.5th 1, 31 ( Zamora ).) Under the second step of the McDonnell Douglas test, the employer may dispel the presumption merely by articulating a legitimate, nondiscriminatory reason for the challenged action. ( Id. at p. 32 [internal citations removed].) Under the third step of the test, the plaintiff must ... have the opportunity to attack the employers proffered reasons as pretexts for discrimination, or to offer any other evidence of discriminatory motive. [Citation.] ( Ibid. ) However, [w]hen seeking summary judgment or summary adjudication in an employment discrimination case, the burdens established by the McDonnell Douglas framework are altered. ( Zamora , supra , 71 Cal.App.5th at p. 32.) If the employer presents admissible evidence either that one or more of plaintiffs prima facie elements is lacking, or that the adverse employment action was based on legitimate, nondiscriminatory factors, the employer will be entitled to summary judgment unless the plaintiff produces admissible evidence which raises a triable issue of fact material to the defendants showing. ( Caldwell v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 203.) On a disability discrimination claim, the prima facie case requires the plaintiff to show he or she (1) suffered from a disability, or was regarded as suffering from a disability; (2) could perform the essential duties of the job with or without reasonable accommodations , and (3) was subjected to an adverse employment action because of the disability or perceived disability. [Citation.] ( Wills v. Superior Court (2011) 195 Cal.App.4th 143, 159160 [emphasis added].) The parties do not dispute the following: Plaintiff began to experience pain in 2004 or 2005 that consisted of a burning sensation in her wrists followed by discomfort at night sleeping. There was more pain in her right hand, and she is right-handed. (Plaintiffs response to moving partys separate statement of undisputed material facts, filed June 25, 2024 (the Parties UMF), ¶ 2.) Then, in 2007, Plaintiff began to experience discomfort in her right upper &. This was pain in her right shoulder and had trouble lifting her right arm past her shoulder level and began receiving treatment from an orthopedic doctor and physical therapy. (Parties UMF, ¶ 3.) Plaintiff & filed workers compensation claims related to her alleged repetitive motion injuries to her wrist and shoulder from 2007 to 2018. (Parties UMF, ¶ 4.) In January 2019, she underwent a right wrist carpal tunnel release and open decompression of the ulnar nerve at the right elbow. (Parties UMF, ¶ 5.) After that procedure, Plaintiff was placed on leave from work until March 2021. (Parties UMF, ¶ 5.) While on leave from work, Plaintiff underwent a left-wrist carpal tunnel release in July 2019. (Parties UMF, ¶ 5.) In August 2020, while still on leave, Plaintiff underwent a right shoulder arthroscopic surgery. (Parties UMF, ¶ 10.) On July 19, 2021, approximately five (5) months after returning from leave in March 2021, Plaintiff attended a medical examination performed by Qualified Medical Examinator (QME) Dr. Thomas Montell (Dr. Montell) as part of her workers compensation claim. (Parties UMF, ¶ 13.) Plaintiff told Dr. Montell that she performs approximately 1.5 hours of typing a day at work and Dr. Montell prepared a report that restricted [her] to typing no more than 1.5 hours a day and lifting more than six pounds. (Parties UMF, ¶ 13.) The only substantive declaration the City offered in support of this motion is from Samuel English, the Citys Risk Specialist in the City Attorneys office. He testified that the City was not able to accommodate Plaintiff in her Administrative Aide II position based on the typing restriction that Dr. Montell had imposed on her and that the amount of typing required for the Administrative Aide II position was endangering [Plaintiffs] health. (Motion, English Decl., ¶ 11.) However, a declarant must provide the requisite preliminary facts to show he has personal knowledge about what he has said. (Evid. Code, § 702, subd. (a) [Subject to Section 801, the testimony of a witness concerning a particular matter is inadmissible unless he has personal knowledge of the matter. Against the objection of a party, such personal knowledge must be shown before the witness may testify concerning the matter].) [B]oilerplate sentence, if called as a witness I could and would competently testify under oath to the above facts which are personally known to me, is not sufficient to establish personal knowledge. ( Gamboa v. Northeast Community Clinic (2021) 72 Cal.App.5th 158, 169.) Where the facts stated do not themselves show it, such bare statement of the affiant has no redeeming value and should be ignored. (Snider v. Snider (1962) 200 Cal.App.2d 741, 754.) Further, [t]he proponent of the proffered evidence has the burden of producing evidence as to the existence of the preliminary fact, and the proffered evidence is inadmissible unless the court finds that there is evidence sufficient to sustain a finding of the existence of the preliminary fact, when: ¶ (1) The relevance of the proffered evidence depends on the existence of the preliminary fact &. (Evid. Code, § 403, subd. (a)(1).) Here, English has not laid a foundation or shown that he has personal knowledge for his testimony that the City could not accommodate Plaintiff in her Administrative Aide II position and that the amount of typing required for that position was endangering Plaintiffs health. He did not promulgate or enforce personnel policies, did not supervise Plaintiff or play a decisive role in Plaintiffs employment, did not know who decided whether Plaintiff would be accommodated, did not research voice-to-text software, and does not know if anyone did, and fails to explain why the City did not accommodate Plaintiffs typing restrictions. The English declaration is almost entirely inadmissible. Therefore, the Court finds that the City has failed to meet its initial burden of proving that Plaintiff was not able to perform her essential job duties without reasonable accommodations. However, even if the City met that burden, Plaintiff has met her burden of showing that a triable issue exists by testifying that (1) she did not believe she needed any accommodations to do her job in the first place and (2) could not in good faith sign documents certifying that she could not perform her job because she knew she could. (Plaintiffs Compendium of Evidence, filed on June 25, 2024 (COE), Exhibit A Declaration of Naomi Tomita (Plaintiff Decl.), ¶¶ 15, 17.) The City also moves for summary adjudication of the disability discrimination claim, arguing that it had a legitimate, non-discriminatory reason for medically separating Plaintiff from her employment, and that reason is that Plaintiff could not be reasonably accommodated as an Administrative Aide II. (Motion, pp. 24:22-25:2.) As stated above, the City has failed to establish that Plaintiff could not be reasonably accommodated as an Administrative Aide II. Therefore, the City has also failed to establish that the City had legitimate, non-discriminatory reasons for medically separating Plaintiff from her employment. Accordingly, the burden does not shift to Plaintiff to show that a triable issue exists as to that issue. For those reasons, the request for summary adjudication of the disability claim is denied. Retaliation (Issue No. 3) California cases hold that in order to establish a prima facie case of retaliation under the FEHA, a plaintiff must show (1) he or she engaged in a protected activity, (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employers action. ( Yanowitz v. LOreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.) Here, the City moves for summary adjudication of the retaliation claim, arguing that Plaintiff has not produced specific, substantial evidence to show that Defendants legitimate, non-discriminatory reasons for its actions were pretext for retaliation and/or there is a lack of causal link. (Notice of Motion, p. 2:9-14.) The City argues that its legitimate, non-retaliatory reason for separating Plaintiff from her position was the fact that Plaintiff could not be reasonably accommodated in her Administrative Aide II position or any alternative position she was qualified for. (Motion, p. 27:5-7.) However, as stated above, the City has failed to meet its initial burden of showing that Plaintiff could not be reasonably accommodated. In any event, when it comes to retaliation cases under FEHA, [t]he central issue is and should remain whether the evidence as a whole supports a reasoned inference that the challenged action was the product of discriminatory or retaliatory animus. ( Light v. Department of Parks & Recreation (2017) 14 Cal.App.5th 75, 94 [emphasis added].) The employers mere articulation of a legitimate reason for the action cannot answer this question; it can only dispel the presumption of improper motive that would otherwise entitle the employee to a judgment in his favor. ( Ibid. ) [C]iting a legitimate reason for the challenged action will entitle the employer to summary judgment only when the employees showing, while sufficient to invoke the presumption, is too weak to sustain a reasoned inference in the employees favor. That, and not pretext, must be the focus of the judicial inquiry. [Citations.] ( Ibid. [emphasis removed].) [S]ummary judgment should not be granted unless the evidence cannot support any reasonable inference for plaintiff. [Citation.] ( Ibid. ) Here, Plaintiff has provided evidence allowing a reasonable inference that the Citys reason for separating her from her employment was retaliatory. Robert Kim (Kim), the Hawthorne City Attorney, was Plaintiffs ultimate superior & when she worked as an Administrative Aide II. (Opposition, 4:11-12.) During his deposition, Kim testified that any decision concerning Plaintiffs reasonable accommodations and whether Plaintiff would be able to return to work would fall on him. (Plaintiffs Compendium of Evidence, filed on June 25, 2024 (COE), Exhibit F (Kim Depo.), pp. 37:24-38:6; 40:21-22.) Kim also testified that when Plaintiff returned from her leave of absence, he preferred that she did not type at all to prevent her from claiming that she re-aggravated her injury because of typing. (Kim Depo., pp. 40:21-22; 54:16-22.) Kim was very cautious about [Plaintiff] bringing a lawsuit in addition to workers comp cases for other reasons. So [he] didnt really & want to have too much interaction with her, nor do [he] feel that that was necessary because [he] was so preoccupied with so many other things at that point, at that time. (Kim Depo., p. 55:5-8.) The fact that Kim wanted to prevent her from typing because of her perceived disability supports an inference that the Citys separation of Plaintiff from her position was for retaliatory reasons. In addition, the complaint alleges that at one point during her employment, City Manager Vontray Norris (Norris) summarily relieved Ms. Tomita from her duties indefinitely and without pay on November 29, 2021. Plaintiff testified during her deposition that on that day, Norris, English, and a union representative walked into her office and told her that even though she was a great worker and did an excellent job, she would have to leave work because she filed her workers compensation claim. (COE, Exhibit G (Plaintiff Depo.), pp. 106:6-107:10.) This presents a triable issue of fact that the Citys reason for separating Plaintiff from her employment was motivated by retaliatory animus. The City argues that Plaintiff cannot show a causal link between her alleged protected activity of filing a workers compensation claim and the alleged adverse employment action because she filed that workers compensation claim in 2019, and the medical separation from her job occurred about three years later in December 2022. (Motion, p. 26:12-17.) The causal link may be established by an inference derived from circumstantial evidence, such as the employers knowledge that the [employee] engaged in protected activities and the proximity in time between the protected action and allegedly retaliatory employment decision. [Citation.] [Citation.] ( Morgan v. Regents of University of Cal. (2000) 88 Cal.App.4th 52, 69.) A long period between an employers adverse employment action and the employees earlier protected activity may lead to the inference that the two events are not causally connected. [Citation.] ( Wysinger v. Automobile Club of Southern California (2007) 157 Cal.App.4th 413, 421 ( Wysinger ).) But if between these events the employer engages in a pattern of conduct consistent with a retaliatory intent, there may be a causal connection. ( Ibid .) Here, even if it is true that there was a long period between the date Plaintiff filed her workers compensation claim and the date she was separated from her employment, Plaintiff has met her burden of showing that a triable issue exists regarding whether the City engaged in a pattern of conduct consistent with a retaliatory intent sufficient to establish a causal connection. As stated above, Plaintiff testified during her deposition that Norris, English, and a union representative walked into Plaintiffs office in November 2021 (years after Plaintiff filed her workers compensation claim) and informed her that she was being released from work that day because she had filed the claim. Plaintiff testifies that after that interaction, she received a letter dated November 29, 2021, from Norris, stating that the City was currently unable to return [her] to [her] fully regular work duties in [her] usual and customary position of Administrative Aide II. (COE, Exhibit N a copy of the letter, p. 1.) Plaintiff testifies that even though in that letter, Norris claimed that the City had hired Show HR Consulting to assist with the continuation of Plaintiffs disability interactive process, the City had not engaged in any form of interactive process before that time and, therefore, there was nothing to continue. (COE, Exhibit A (Plaintiffs Decl.), ¶ 11.) The Court finds through that evidence Plaintiff has shown triable issues exist regarding whether a causal link exists between her filing her workers compensation claim and the Citys decision to separate her from her employment. For those reasons, the request for summary adjudication of the retaliation claim is denied. Failure to Accommodate (Issue No. 4) Under FEHA, it is unlawful [f]or an employer or other entity covered by this part to fail to make reasonable accommodation for the known physical or mental disability of an applicant or employee. (Gov. Code, § 12940, subd. (m)(1).) The essential elements of a claim of failure to accommodate are: (1) the plaintiff has a disability covered by FEHA; (2) the plaintiff is a qualified individual; and (3) the employer failed to reasonably accommodate the plaintiffs disability. ( Furtado v. State Personnel Bd. (2013) 212 Cal.App.4th 729, 744 ( Furtado ).) The elements of a failure to accommodate claim are similar to the elements of a ... [FEHA] discrimination claim, but there are important differences. ( Furtado , supra , 212 Cal.App.4th at p. 744.) For purposes of [a failure to accommodate] claim, the plaintiff [has to] prove[] he or she is a qualified individual by establishing that he or she can perform the essential functions of the position to which reassignment is sought, rather than the essential functions of the existing position. [Citations.] More significantly, the third element ... establishing that an adverse employment action was caused by the employees disabilityis irrelevant to & [a failure to accommodate] claim. Under the express provisions of the FEHA, the employers failure to reasonably accommodate a disabled individual is a violation of the statute in and of itself . [Citation.] [Citation.] ( Furtado , supra , 212 Cal.App.4th at p. 744-745 [emphasis added].) Here, the City moves for summary adjudication of the failure to accommodate claim, arguing that it lacks merit because Plaintiff was accommodated in her Administrative Aide II position until she could no longer be accommodated with or without reasonable accommodation based on her permanent work restrictions and/or could not perform her duties in a manner that would not endanger her health or safety. (Notice of Motion, p. 2:15-20.) However, the Court has sustained Plaintiffs evidentiary objections to Englishs testimony that Plaintiff could not be accommodated and could not perform her duties in a manner that would not endanger her health or safety. Therefore, the City has no evidence to support its factual contention. The City also argues that it accommodated Plaintiff because it gave Plaintiff a leave of absence that extended over two years. (Motion, p. 28:1-4.) However, Plaintiffs failure to accommodate claim (and her entire action) is based on events that occurred after she returned from that leave, not before. Therefore, it is irrelevant for purposes of the failure to accommodate claim that the City gave her that leave of absence. For those reasons, the Court finds that the City has failed to meet its initial burden of showing that Plaintiffs failure to accommodate claim has no merit. Therefore, the burden does not shift to Plaintiff to show that a triable issue exists as to that claim. Accordingly, the request for summary adjudication of the failure to accommodate claim is denied. Failure to Engage in a Good Faith Interactive Process (Issue No. 5) Under FEHA, it is an unlawful practice for an employer to fail to engage in a good faith interactive process with the employee to determine an effective reasonable accommodation if an employee with a known physical disability requests one. ( Brown v. Los Angeles Unified School Dist. (2021) 60 Cal.App.5th 1092, 1109.) Here, the City moves for summary adjudication of the failure to engage claim, arguing the following. [1] The undisputed material facts show that Defendant was engaged with Plaintiff in the interactive process for several years until Plaintiff could not be accommodated in her position of Administrative Aide II because of her permanent restrictions related to her physical disability. [2] Other positions were considered for Plaintiff and Plaintiff rejected the three positions she was minimally qualified for. [3] Finally, the City considered Plaintiffs request for voice activation software but determined that this request was not practical for Plaintiffs position and would not be sufficient to enable Plaintiff to perform her essential job duties. (Motion, p. 32:8-15.) The Court has already discussed and found the first argument unpersuasive. As to the second argument, the Court has sustained Plaintiffs objections to the portion of Englishs declaration that the City relies on to argue that the City considered and denied Plaintiffs request for voice activation software. (Motion, English Decl., ¶ 7.) To support its second argument, that other positions were considered for Plaintiff and Plaintiff rejected the three positions she was minimally qualified for, the City submits Plaintiffs deposition transcripts. During her deposition, Plaintiff conceded that she was offered three positions but did not want them because they would affect her retirement and offered lower pay than the Administrative Aide II position. (Motion, Declaration of Steven H. Taylor, ¶ 3; Exhibit 2 a copy of Plaintiffs deposition transcript, pp. 150:13-151:22 [Oh. I felt a lot of pressure because I wanted to show that I was cooperative with the interactive process even though it didnt make sense for me to apply for - - for the positions in the long run because of the pay cut and - - and the hour cut. Its a part-time position and it would affect my retirement. My retirement is based on the end of my salary. It doesnt make sense to go backwards. Its not a comparable position to even consider, but since they were throwing me the - - the rotten crumbs as my options I wanted to be - - to show that at least I was willing to work in this interactive process].) However, an employers obligation to engage in the interactive process extends beyond the first attempt at accommodation and continues when the employee asks for a different accommodation or where the employer is aware that the initial accommodation is failing and further accommodation is needed. This rule fosters the framework of cooperative problem-solving contemplated by the ADA, by encouraging employers to seek to find accommodations that really work .... [Citation.] ( Scotch , supra , 173 Cal.App.4th at p. 1013 [italics added].) Here, the City has not presented evidence that once Plaintiff rejected being demoted to positions at lower pay, it attempted to further accommodate Plaintiff. Merely arguing that it offered Plaintiff positions and that Plaintiff rejected those positions is, without more, insufficient to establish an interactive process. Attempting to transfer an employee to a lower paid position is an adverse employment action, not evidence of a meaningful and good faith dialogue. Therefore, the Court finds that the City has failed to meet its initial burden of showing that Plaintiffs failure to engage claim has no merit. Accordingly, the burden does not shift to Plaintiff to show that one or more issues of material fact exist as to that claim. For those reasons, the request for summary adjudication of the failure to engage claim is denied. Failure to Prevent Discrimination and Retaliation (Issue No. 6) Summary adjudication of the failure to prevent discrimination and retaliation claim is denied because the Court has found that (1) the City has failed to meet its initial burden of showing that the disability discrimination claim lacks merit and (2) triable issues exist as to the retaliation claim. Conclusion The motion for summary judgment is denied. The motion for summary adjudication is denied.

Case Number: BC658964 Hearing Date: July 9, 2024 Dept: 72 SUPERIOR COURT OF CALIFORNIA COUNTY OF LOS ANGELES DEPARTMENT 72 TENTATIVE RULING ANA VILLASENOR, Plaintiff, v. SR LONG BEACH FD INC ET AL, Defendants. Case No: BC658964 Hearing Date: July 9, 2024 Calendar Number: 10 Plaintiff Ana Villasenor moves for attorneys fees and expert witness fees against Defendants SR Long Beach FD, Inc. and SR Restaurant Holdings Group, Inc pursuant to Government Code, section 12965, subd. (c)(6). Plaintiff seeks $1,899,345.00 in attorneys fees and $13,782.50 in expert witness fees. The Court GRANTS Plaintiffs request for attorneys fees in the amount of $949,672.50. The Court GRANTS Plaintiffs request for expert witness fees in the amount of $13,782.50. Background Plaintiff filed this action on April 24, 2017, raising a number of claims under FEHA. On January 12, 2024, following a jury trial, Plaintiff obtained judgment in her favor for sexual harassment, gender discrimination, retaliation, and failure to prevent discrimination, harassment, and retaliation. Plaintiff obtained a total judgment of $445,064.17. Plaintiff filed this motion on June 10, 2024. No party filed an opposition. Legal Standard The lodestar method for calculating attorney fees applies to any statutory attorney fees award, unless the statute authorizing the award provides for another method of calculation. ( Glaviano v. Sacramento City Unified School Dist. (2018) 22 Cal.App.5th 744, 750-751.) Under the lodestar method, the trial court must first determine the lodestar figurethe reasonable hours spent multiplied by the reasonable hourly ratebased on a careful compilation of the time spent and reasonable hourly compensation of each attorney involved in the presentation of the case. ( Id. at p. 751.) The trial court has broad authority to determine the amount of a reasonable fee. ( PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095.) The moving party bears the burden of proof as to reasonableness of any fee claim. (Code Civ. Proc., § 1033.5, subd. (c)(5).) The party seeking fees has the burden of documenting the appropriate hours expended and hourly rates. ( City of Colton v. Singletary (2012) 206 Cal.App.4th 751, 784.) This burden requires competent evidence as to the nature and value of the services rendered. ( Martino v. Denevi (1986) 182 Cal.App.3d 553, 559.) A plaintiffs verified billing invoices are prima facie evidence that the costs, expenses, and services listed were necessarily incurred. ( Hadley v. Krepel (1985) 167 Cal.App.3d 677, 682.) In challenging attorney fees as excessive because too many hours of work are claimed, it is the burden of the challenging party to point to the specific items challenged, with a sufficient argument and citations to the evidence. General arguments that fees claimed are excessive, duplicative, or unrelated do not suffice. ( Lunada Biomedical v. Nunez (2014) 230 Cal.App.4th 459, 488, quoting Premier Med. Mgmt. Sys., Inc. v. California Ins. Guarantee Assn (2008) 163 Cal.App.4th 550, 564.) When items are properly objected to, the burden of proof is on the party claiming them as costs. ( Melnyk v. Robledo (1976) 64 Cal.App.3d 618, 623-624.) Discussion Entitlement to Attorneys Fees In civil actions brought under this section, the court, in its discretion, may award to the prevailing party, including the department, reasonable attorney's fees and costs, including expert witness fees, except that, notwithstanding Section 998 of the Code of Civil Procedure, a prevailing defendant shall not be awarded fees and costs unless the court finds the action was frivolous, unreasonable, or groundless when brought, or the plaintiff continued to litigate after it clearly became so. (Gov. Code, § 12965, subd. (c)(6).) Plaintiff is the prevailing party in this FEHA action. The Court therefore awards attorneys fees. Amount of Attorneys Fees Lodestar Plaintiff requests the following hourly rates and time expenditures: For Julia Z. Wells, admitted 2017, $725.00 per hour for 506.0 hours; For Dalia Khalili, admitted 2007, $975.00 per hour for 52.6 hours; For Vanessa M. Rodriguez, admitted 2011, $725.00 per hour for 183.6 hours; For Debra J. Tauger, admitted 1989, $1,050.00 per hour for 117.4 hours; For Andrew Sokolowski, admitted 2003, $900.00 per hour for 128.2 hours; For Tagore Subramaniam, admitted 2011, $775.00 per hour for 83.1 hours; For Sydney Adams, admitted 2018, $625.00 per hour for 21 hours; and For legal assistants, $250.00 per hour for 329 hours. As an initial matter, the Court finds these hourly rates to be reasonable. The number of hours, while high, appear justified under the circumstances of this case. This case was filed in 2017 and came to trial in January 2024, over six years later. Defendants vigorously litigated this case and denied liability up to trial. The parties engaged actively in discovery, with Plaintiff taking four depositions in addition to substantial written discovery. Defendants filed a comprehensive motion for summary judgment and summary adjudication as to each of Plaintiffs claims. Plaintiff opposed the summary judgment and prevailed on all but one of thirteen claims. Further, Plaintiffs lawyers faced substantial risks at trial that would understandably require additional attorney work to mitigate. Plaintiff did not have eyewitnesses corroborating her harassers physical assaults on her, heightening the risk of loss if the jury did not find Plaintiffs testimony to be credible. Further, because Plaintiff does not speak English as a primary language and required an interpreter, there were concerns that the jurors may not be able to fairly evaluate her testimony. Additionally, as outlined in Plaintiffs brief, there were significant concerns that jurors could react poorly or apathetically to the particular facts of Plaintiffs case. In spite of these strategic difficulties, Plaintiffs attorneys were able to obtain a favorable result in this case. For these reasons, the Court finds the time expenditures to be reasonable. Plaintiffs lodestar is $949,672.50. Lodestar Multiplier Plaintiff requests a lodestar multiplier of 2.0. The Court does not agree that a multiplier is appropriate. It is true that the sheer length of this litigation necessarily created unavoidable risk Defendants never offered more than $30,000.00 in settlement discussions that could not be absorbed with additional hours, and in fact is to some extent the cause of the high time expenditures. Because this is a contingent fee case, Plaintiffs attorneys expended considerable time at the risk of not being paid at all. However, while Plaintiff faced vigorous litigation from Defendants and substantial risk at a jury trial, much of that risk can be seen to be accounted for in Plaintiffs high time expenditures and moderately heavy staffing of the trial team, which consisted of four attorneys. That Plaintiffs counsels obtained the result they did is significant. The numbers and hours required to do so make it less so, however, and necessarily dampen both the risk and skill required by any one attorney. Under the facts of this case, the Court does not find a lodestar multiplier to be necessary or appropriate. Expert Witness Fees Plaintiff incurred $13,782.50 in expert witness fees for experts who were key to establishing her emotional distress damages. (Wells Decl. ¶ 11.) The Court finds this amount to be reasonable.

CV-22-006059 - VERA, TOMAS A ENRIQUEZ vs CENTRAL HEATING AND COOLING INC - Plaintiff's Motion for Final Approval of Class and Paga Action Settlement - GRANTED. The alleged statutory and civil penalties concern various wage and hour claims, including meal and rest period violations, minimum and overtime wage violations, wage-statement violations, failure to timely pay wages during employment and at termination, failure to maintain accurate wage statements, failure to reimburse business expenses, failure to disclose material terms at the time of hire, a UCL claim and a claim for PAGA penalties.  The subject class consists of current and former non-exempt employees of D in California between 12-30-18 and the date of preliminary approval; the aggrieved employees for purposes of the PAGA claim are those employed by D between 12-30-21 and the date of preliminary approval. Of the 302 class members, one opted out of the settlement and no parties objected. Six members were not reached. Per the declarations of Counsel Jose Macias, Esq. and Kevin Lee of Phoenix Administrators: The total gross non-reversionary settlement amount is $414,140.00 and includes:  i) Administrative settlement Costs of $8,950  ii) Attorney fee award to Class Counsel of $144,949.00; in addition to $10,251.05 in a litigation costs (down from up to $15,000.00).   iii) Enhancement award of $10,000 to the class representative;  iv) PAGA payment of $41,414.00 [75%, ($31,060.50) to LWDA and 25% ($10,353.50)  to Class Members]. Based on the Administrator’s analysis, the average net payment to each participating class member is approximately $657.54, with the highest net payment to a participating class member amounting to $2,337.83. The Court sets the deadline for Defendant to issue the gross settlement amount to the Settlement Administrator by August 9, 2024. Deadline for class members to cash checks shall be February 19, 2025. Compliance declaration shall be filed by February 28, 2025. A compliance hearing will be held on March 19, 2025 at 8:30 a.m. in Department 21.

Matter on the Law & Motion calendar for Friday, July 12, 2024, Line 4. FINAL FAIRNESS AND APPROVAL HEARING. The unopposed Approval Hearing is continued to August 2 to afford counsel the opportunity to submit any briefing it wishes the court to consider. Friday's Law & Motion Calendar will be called out of Dept. 301. Anyone intending to appear in person should report to Dept. 301. However, anyone intending to appear remotely should use the regular Zoom information for Dept. 302's Law & Motion Calendar for 9:30 a.m. To appear remotely at the hearing, go to the court's website at sfsuperiorcourt.org under "Online Services," navigate to "Tentative Rulings," and click on the appropriate link, or dial the corresponding phone number. Any party who contests a tentative ruling must send an email to contestdept302tr@sftc.org with a copy to all other parties by 4pm stating, without argument, the portion(s) of the tentative ruling that the party contests. The subject line of the email shall include the line number, case name and case number. The text of the email shall include the name and contact information, including email address, of the attorney or party who will appear at the hearing. The court no longer provides a court reporter in the Law & Motion Department. Parties may retain their own reporter, who may appear in the courtroom or remotely. A retained reporter must be a California certified court reporter (CSR), for only a CSR's transcript may be used in California courts. If a CSR is being retained, include in your email all of the following: their name, CSR and telephone numbers, and their individual work email address. =(302/RCE)

S-CV-0050765 Hughes, Andrea vs. Deko Concepts, LLC ** NOTE: telephonic appearances are strongly encouraged Appearance required.

Case Number: 23STCV04433 Hearing Date: July 9, 2024 Dept: 61 DARCY FRENCH vs CITY OF LOS ANGELES TENTATIVE Plaintiff Darcy Frenchs Motion for Leave to File a Second Amended Complaint is GRANTED. Plaintiff is granted leave to file the proposed second amended complaint within 20 days of this ORDER. Plaintiff is ordered to give notice within five (5) days. DISCUSSION Code Civ. Proc. section 473 subd. (a)(1) states that: The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer. The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this code. The trial court has discretion to permit or deny the amendment of the complaint, but instances justifying the court's denial of leave to amend are rare. (Armenta ex rel. City of Burbank v. Mueller Co. (2006) 142 Cal.App.4th 636, 642.) Although courts are bound to apply a policy of great liberality in permitting amendments to the complaint at any stage of the proceedings, up to and including trial [Citations], this policy should be applied only [w]here no prejudice is shown to the adverse party . . . [Citation.] A different result is indicated [w]here inexcusable delay and probable prejudice to the opposing party is shown. [Citation.] (Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 487.) Pursuant to California Rule of Court Rule 3.1324, [a] motion to amend a pleading before trial must: (1) Include a copy of the proposed amendment or amended pleading, which must be serially numbered to differentiate it from previous pleadings or amendments; (2) State what allegations in the previous pleading are proposed to be deleted, if any, and where, by page, paragraph, and line number, the deleted allegations are located; and (3) State what allegations are proposed to be added to the previous pleading, if any, and where, by page, paragraph, and line number, the additional allegations are located. Such a motion must include a supporting declaration stating, (1) The effect of the amendment; (2) Why the amendment is necessary and proper; (3) When the facts giving rise to the amended allegations were discovered; and (4) The reasons why the request for amendment was not made earlier. (CRC Rule 3.1324, subd. (b).) Plaintiff Darcy French (Plaintiff) seeks leave to file a second amended complaint (SAC) alleging the same causes of action, but including new instances of protected activity and retaliation which have occurred since the original Complaint was filed. (Motion at pp. 67.) Such retaliatory actions include continuing to pass Plaintiff over for promotion from April 2023 through January 2024. (Motion at p. 7.) Plaintiff has demonstrated good cause for the amendment, as the facts to be included in the proposed SAC could not have been included in the original complaint. Defendant City of Los Angeles has filed no opposition to the present motion, and trial in this matter is not set to commence until June 3, 2025. The motion is therefore GRANTED.

Case Number: BC475210 Hearing Date: July 9, 2024 Dept: 78 Superior Court of California ¿ County of Los Angeles ¿ Department 78 ¿ ¿ ROBERT E OWENS JR., Plaintiff (s) , vs.¿ OREILLY AUTOMOTIVE STORES, INC. , et al., Defendant ( s ) .¿ Case No.:¿ BC475210 Hearing Date:¿ July 9, 2024 [TENTATIVE] ORDER GRANTING IN PART MOTION TO STRIKE COSTS I. BACKGROUND Plaintiffs Robert E. Owens, Jr. and Raul Michael Pedroza, Jr. filed this PAGA action against defendant CSK Auto, Inc. n/k/a OReilly Auto Enterprises, LLC (Defendant) , et al . On January 16, 2024, judgment was entered in favor of Defendant against plaintiff Raul Michael Pedroza, Jr. (Plaintiff). On February 13, 2024, Defendant filed its memorandum of costs . Plaintiff now moves to strike the cost memorandum. Defendant opposes the motion, and Plaintiff filed a reply . II. DISCUSSION ¿ Plaintiff first argues that Defendant is not entitled to recover costs in its entirety because Labor Code § 2699(g)(1) authorizes only a one-way fee-shifting provision, and that t her e is no provision in this section allowing a successful employer to recover fees or costs. The Court rejects this argument . Pursuant to CCP § 1032, the prevailing party is entitled as a matter of right to recover costs for suit in any action or proceeding . (CCP §1032(b); Santisas v. Goodin (1998) 17 Cal.4th 599, 606; Scott Co. o f Calif. v. Blount, Inc . (1999) 20 Cal.4th 1103, 1108.) CCP § 1032 applies [e] xcept as ot her wise expressly provided by statute. (CCP 1032(b); Murillo v. Fleetwood Enterprises, Inc . (1998) 17 Cal.4th 985, 989-999.) Labor Code 2699(g)(1) provides that a prevailing plaintiff can recover fees and costs, but does not ot her wise expressly provide that a defendant cannot recover costs. When statutory language is thus clear and unambiguous t her e is no need for construction, and courts sh ould not indulge in it. ( Solberg v. Superior Court (1977) 19 Cal.3d 182, 198, 137 Cal.Rptr . 460, 561 P.2d 1148.) A court may not construe the plain language of a statute as to substitute its wisdom for that of the legislature. ( Lasky, Haas, Cohler & Munter v. Superior Court (1985) 172 Cal.App.3d 264, 279; Standon Co. v. Superior Ct. (1990) 225 Cal. App. 3d 898, 904.) The Court t her efore finds that Defendant is entitled to costs as the prevailing party pursuant to CCP § 1032. The Court declines to consider Plaintiffs public policy arguments, which are better expressed to the Legislature . Plaintiff argues, in the alternative, that if the Court finds CCP § 1032 applicable, that the following costs be taxed: (1) $1,060.00 for documents filed in the appellate court, and (2) $4,948.70 for trial transcripts. In opposition, Defendant concedes that the $1,060.00 appellate costs sh ould be taxed, averring that these costs were inadvertently included. T her efore, Plaintiffs request to tax $1,060.00 is GRANTED . As to the trial transcripts, Plaintiff argues that these are not recoverable because they were not ordered by the court pursuant to CCP § 1033.5(a)(9). In opposition, Defendant argues that these transcripts were in fact ordered by the Court, and that the parties were ordered to lodge the trial transcripts and exhibits at the conclusion of trial for the Courts review. Plaintiff does not contest this on reply. The Court finds that the transcripts were ordered and therefore recoverable . Plaintiffs request to tax $4,948.70 for trial transcripts is DENIED . III . CONCLUSION Based on the foregoing, Plaintiffs motion to tax costs is GRANTED IN PART. The Court taxes $1,060.00 from Defendants costs memorandum and awards Defendant its litigation costs in the total amount of $53,438.76. Moving Party is ordered to give notice . DATED: July 8, 2024 __________________________ Hon. Michelle C. Kim ¿ Judge of the Superior Court PLEASE TAKE NOTICE: " Parties are encouraged to meet and confer after reading this tentative ruling to see if they can reach an agreement. " If a party intends to submit on this tentative ruling, the party must send an email to the court at SMCDEPT78@lacourt.org with the Subject line SUBMIT followed by the case number. The body of the email must include the hearing date and time, counsels contact information, and the identity of the party submitting . " Unless all parties submit by email to this tentative ruling, the parties sh ould arrange to appear remotely (encouraged) or in person for oral argument. You sh ould assume that ot her s may appear at the hearing to argue. " If the parties neit her submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court. After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave.

Case Number: 22STCV38941 Hearing Date: July 15, 2024 Dept: 20 Tentative Ruling Judge Kevin C. Brazile Department 20 Hearing Date: July 15, 2024 Case Name: Ramsey v. Clearmark Title Company, et al. Case No.: 22STCV38941 Matter: Motion to Compel Further Responses Moving Party: Plaintiff Laurie Ramsey Responding Party: Defendants Clearmark Title Company and John Macias Notice: OK Ruling: The Motion is granted in part. Moving party to give notice. If counsel do not submit on the tentative, they are strongly encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic. This is an employment action. Plaintiff Laurie Ramsey seeks to compel Defendants Clearmark Title Company (Clearmark) and John Macias to provide further responses to her form interrogatories (FI), set onegeneral and employment. The Court rejects Defendants arguments about a meet and confer effort because Defendants received multiple extensions of time and failed to even provide supplemental responses to all discovery at issue. Also, Defendants responses often show an intent to obstruct discovery. Plaintiff does not have a duty to play cat-and-mouse games in perpetuity. The Motion is denied as to FI nos. 4.1 and 214.1 because Clearmark indicates that the declarations page of its liability insurance has now been provided. The Motion is granted as to FI nos. 2.5 and 2.6 because Macias address and basic employment information is discoverable. The Motion is granted as to FI no. 2.11 because Macias failed to explain his duties and the interrogatory quite clearly relates to the time of the incident. The Motion is granted as to FI no. 201.6 because the answer provided is evasive and non-responsive. The Motion is granted as to FI no. 207.1 because the reference to documents has no specificity. The Motion is granted as to FI no. 209.2 because the objections to an approved form interrogatory lack merit under the circumstances here. In sum, the Motion is granted in part as set forth herein. The Court awards Plaintiff reduced sanctions in the amount of $1,250. Moving party to give notice. If counsel do not submit on the tentative, they are strongly encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic.