Lucy Bernal vs Ghitterman Ghitterman & Feld

Case Number

20CV01448

Case Type

Hearing Date / Time

Mon, 10/23/2023 - 10:00

Nature of Proceedings

Motion: Summary Judgment; Motion: Sanctions Against Defendant Ghitterman, Ghitterman, & Feld and its Attorneys of Record

Tentative Ruling

Lucy Bernal v. Ghitterman Ghitterman & Feld

Case No. 20CV01448

           

Hearing Date: October 23, 2023                                                

HEARING:                1. Defendant’s Motion for Summary Judgment, or, in the Alternative, Summary Adjudication;

                                    2.  Plaintiff’s Motion for Sanctions Against Defendant Ghitterman, Ghitterman & Feld and its Attorneys of Record.

           

ATTORNEYS:          Christina M. Coleman for plaintiff

                                    Russell R. Ghitterman of Ghitterman, Ghitterman & Feld, for defendant

                       

TENTATIVE RULING:  Defendant’s motion for summary judgment, or, in the alternative, summary adjudication, is denied. Plaintiff’s motion for sanctions is denied.

Background:

This is a wrongful termination action, arising from plaintiff Lucy Bernal’s (Bernal) previous employment with defendant Ghitterman, Ghitterman & Feld (GGF) as, among other things, a case worker. The complaint, filed on March 13, 2020, alleges causes of action for (1) disability discrimination in violation of the Fair Employment and Housing Act (FEHA), (2) retaliation in violation of FEHA, (3) failure to prevent discrimination and retaliation in violation of FEHA, (4) failure to provide reasonable accommodations in violation of FEHA, (5) failure to engage in a good faith interactive process in violation of FEHA, (6) declaratory relief, and (7) wrongful termination in violation of public policy.

GGF answered on May 7, 2020, generally denying the allegations of the complaint, and alleging as affirmative defenses that (1) any injury suffered by plaintiff was due to her own actions, (2) plaintiff failed to exhaust administrative remedies, (3) plaintiff failed to state facts to support a cause of action, (4) plaintiff failed to mitigate damages, (5) plaintiff is guilty of unclean hands, (6) plaintiff waived her claims, and (7) there was no discriminatory conduct by defendant who acted reasonably at all times.

GGF filed its present amended motion for summary judgment, or, in the alternative, summary adjudication (MSJ) on August 25, 2023. Defendants argue: (1) GGF is entitled to judgment on plaintiff’s first, third, fourth, fifth, sixth, and seventh causes of action because plaintiff is unable to show that she is a qualified individual with a disability; (2) GGF is entitled to judgment on plaintiff’s second, third, fourth, sixth, and seventh causes of action because plaintiff is unable to show she engaged in a protected activity and that GGF subjected her to an adverse employment action that was caused by the protected activity; and (3) GGF is entitled to judgment on plaintiff’s seventh cause of action because plaintiff is unable to show there was an employment contract between herself and GGF. (Notice of Motion, p. 2, ll. 9-18.)

Plaintiff opposes the MSJ arguing that GGF’s motion is meritless and that there is a triable issue of fact as to whether plaintiff could have done her job for defendant with or without reasonable accommodation.

Plaintiff filed the present motion for sanctions, pursuant to Code of Civil Procedure sections 128.5 and 128.7 on the grounds that GGF’s “motion for summary judgment and/or adjudication is frivolous, lacks evidentiary support and legal merit, and was brought primarily for the improper purpose of harassing Plaintiff, causing unnecessary delay, and/or needlessly increasing the cost of litigation.”

GGF opposes plaintiff’s motion for sanctions arguing that the MSA is meritorious and not frivolous.

As relevant to the MSJ, the following facts are either undisputed or not reasonably disputed:

            Issue No. 1

“Plaintiff was a caseworker for GGF.” (Plaintiff’s Separate Statement (PSS), ¶ 2.) “The caseworker position requires good organizational skills, attention to detail, ability to work with short deadlines, have an understanding of worker’s compensation system, and an ability to communicate effectively with clients, defense attorneys and carriers. They often deal with exasperated clients, demanding defense attorneys and unreasonable adjustors. In addition, they must juggle the demands of their supervisor and effectively prioritize their work. It is a demanding position in which the CW is usually handling between 150-175 cases and managing the day-to-day logistics of their assigned clients’ claims as well as being available to help others. While it can be quite stressful, the CW is critical to GGF’s success.” (PSS, ¶ 3.)

“As early as 9/25/19, Plaintiff was seeking accommodations for law school from her therapist, Betty Gutman, LCSW.” [Not reasonably Disputed.] (PSS, ¶ 4.) “On 12/24/19, Ms. Gutman noted that Plaintiff’s condition had regressed.” (PSS, ¶ 5.) “On 2/5/20, Ms. Gutman noted that [plaintiff] was having difficulty concentrating, experiencing excessive worry, feeling depressed and hopeless.” (PSS, ¶ 6.) “A month later, on 3/3/20, formal ADA accommodations for law school were written that included 2.5 hours to complete each one-hour exam to decrease anxiety and increase [plaintiff’s] focus as well as limiting her to one exam per day.” (PSS, ¶ 7.) “Plaintiff testified that these accommodations also included a quiet setting for these examinations.” (PSS, ¶ 8.) “These ADA accommodations would remain the same throughout Plaintiff’s pursuit of a law degree.” (PSS, ¶ 9.)

“On 3/10/20, Plaintiff was requesting a letter from Ms. Gutman that she was ‘permanently’ disabled due to her anxiety.” (PSS, ¶ 10.) “On 7/02/20, Dr. Dansereau confirmed that Plaintiff has an ADA and FEHA disability that necessitates reasonable accommodation.” (PSS, ¶ 11.) “And, 9 days after that, her therapist stated on 7/29/20 that Plaintiff’s thought process is tangential and incoherent. She is overwhelmed by issues and is unable to problem solve.” (PSS, ¶ 12.) “Throughout her records, it is noted that Plaintiff’s anxiety is aggravated by conflict or stress.” (PSS, ¶ 13.) “Three and one-half years after Plaintiff took her leave of absence from GGF, on 5/18/22, Dr. Dansereau notes that Plaintiff took: ‘a leave of absence from law school as she was overwhelmed by the requirements and her additional duties including serving as a power of attorney…She was overwhelmed by the requirements of law school and the additional factors in her life.’ ” (PSS, ¶ 14.) “Plaintiff testified in her deposition that she found her work at GGF to be more stressful than law school . . .” (PSS, ¶ 15.)

            Issue No. 2

“The decision to withdraw representation of the plaintiff in her civil claim arising out of the 2018 car accident was because the handling attorney, Jan Kaestner, and Russell Ghitterman, determined an actual conflict-of-interest was created when the plaintiff filed a claim with the EEOC, which GGF did not think could be remediated with a waiver.” (PSS, ¶ 2.) “The State Labor Commissioner determined that plaintiff Lucy Bernal was not entitled to the ASG Scholarship.” [Not reasonably Disputed.]  (PSS, ¶ 3.) “By Plaintiff’s own assessment, the ASG Scholarship was supposed to be $500.” [Not reasonably Disputed.] (PSS, ¶ 4.)

As relevant to the MSJ, the following facts are disputed:

            Issue No. 1

“Plaintiff Lucy Bernal is not a Qualified Individual with a Disability.” (PSS, ¶ 1.) “Plaintiff has never produced any documentation to GGF supporting her claim that she has been released to work, without restrictions.” (PSS, ¶ 16.)

            Issue No. 2

“Withdrawal of representation of plaintiff Lucy Bernal in the car accident matter was mandated by PRC 1.7.” (PSS, ¶ 1.)

            Issue No. 3

“Plaintiff was an at-will employee who worked less than one year. There was no contractual agreement with GGF, implied or otherwise.” (PSS, ¶ 1.)

Plaintiff sets forth 27 additional material facts that she argues are undisputed. Several of the additional facts are not reasonably disputed because defendant has not provided any evidence to refute them. The additional facts that are relevant to the MSJ, and either undisputed or not reasonably disputed, based on the admissible evidence submitted, include:

“Plaintiff performed her job duties satisfactorily during the entirety of Plaintiffs employment with Defendant.” (Defendant’s Reply Separate Statement (DRSS), ¶ 4.) “Plaintiff’s physicians extended Plaintiff’s medical leave while Plaintiff underwent medical treatment in an attempt to heal enough to return to work.” (DRSS, ¶ 6.)

“Steele drafted a termination letter for Plaintiff as early as April 19, 2019, even before Steele told Plaintiff about the change to the handbook limiting leaves of absence to four months.” [Not reasonably Disputed.] (DRSS, ¶ 8.) “In late April 2019, GGF modified its employee handbook while Plaintiff was on a leave of absence to put a four-month limitation on leaves of absences.” (DRSS, ¶ 9.) “Plaintiff had already been on a leave of absence for longer than four months at the time GGF modified its handbook, so Plaintiff was given four months from the date of the modification, was told that, if she did not provide a doctor’s release to return to work by September 1, 2019, she would be terminated, conveying that September 1, 2019 was a drop dead date pursuant to the new policy, regardless of circumstances, and is nonnegotiable.” (DRSS, ¶ 10.) “In May of 2019, Plaintiff began contacting the EEOC and made an inquiry after GGF told her that they had modified the employee handbook to limit leaves of absences to only four months.” (DRSS, ¶ 11.)

“On July 11, 2019, Plaintiff requested further accommodation from GGF when she submitted an updated medical certification, which requested extension of her leave of absence to December 1, 2019.” (DRSS, ¶ 12.) “On July 11, 2019, Steele confirmed receipt of Plaintiff’s updated medical certification, and stated: " ‘Unfortunately, it looks like your doctor says you cannot return to work until December 1, 2019. Per the attached e-mail from May 1, we let you know that we would be willing to extend your leave of absence an additional four months, a total of ten months, but that if you were still not released by a doctor to return to work and seek a position with us by September 1, then we cannot accommodate the request to extend past ten months.’ " Though Defendant understood the doctor’s note extending Plaintiff’s leave to December 1, 2019, was a request for an accommodation that her leave be extended to December 1, 2019, Defendant did not offer any extension of the leave of absence beyond September 1, 2019, because according to Defendant, September 1st was a drop-dead date and was non-negotiable.” [Not reasonably Disputed.] (DRSS, ¶ 13.)

“On July 23, 2019, Plaintiff filed an EEOC Charge against Defendant, in which she charged that Defendant was discriminating against her because of her disability.” (DRSS, ¶ 14.) “Plaintiff could not obtain a note releasing her back to work on December 1, 2019, because her primary care physician retired the day after Plaintiff’s November 25, 2019 visit, and Plaintiff’s new primary care physician did not want to release Plaintiff until she had the opportunity to examine Plaintiff herself.” (DRSS, ¶ 17.)

“On January 27, 2020, Plaintiff was released back to work as of February 3, 2020, with no restrictions. This release was not limited to a release for orthopedic injuries, but was an all-purpose release by Clinicas del Camino Real, Plaintiff’s health care provider.” [Not reasonably Disputed.] (DRSS, ¶ 18.) “Plaintiff continued treating for both mental and physical conditions even after her release back to work on February 3, 2020.” (DRSS, ¶ 19.)

“On February 21, 2020, Plaintiff’s primary care physician, Dr. Sarransingh, confirmed that Plaintiff was released back to work with no restrictions on February 3, 2020, that Plaintiff continues to receive to receive medical care and treatment for anxiety, depression, PTSD, and other mental health issues, that Plaintiff continues to take psychotropic medications to ensure she can self-regulate her ability to think clearly, remain focused, and complete tasks/process information, and that Plaintiff requires future medical care.” [Not reasonably Disputed.] (DRSS, ¶ 20.) Plaintiff’s need for future medical care, including the need for regular monitoring of her psychotropic medications, does not impact her ability to work, even in a stressful environment. Indeed, the very purpose of the psychotropic medications is to ensure Plaintiff’s ability to continue to function productively, including working. Plaintiff is, and has been, able to work, with or without restrictions or accommodations since February 3, 2020.” [Not reasonably Disputed.] (DRSS, 21.) “Plaintiff’s need for accommodations for taking exams in law school to better her opportunity for success, or occasional need for other accommodations such as use of a service dog or revisions to her medications, does not render Plaintiff unable to work, even in a stressful environment.” [Not reasonably Disputed.] (DRSS, ¶ 22.) “Plaintiff has been treating with clinical psychologists and psychologists on and off for anxiety, stress, depression and/or PTSD since Plaintiff was 10 or 11 years old and has been prescribed and taken psychotropic medications on and off since Plaintiff was 10 or 11 years old to deal with these conditions.” (DRSS, ¶ 23.)

“Even before the car accident in September 2018, and while Plaintiff was working for GGF, Plaintiff was receiving counseling and therapy for stress at work and PTSD, and was taking psychotropic medications to deal with anxiety, stress and/or depression. During that time, despite work at GGF being stressful, Plaintiff was able to perform her job duties well. On those few occasions when Plaintiff was feeling overwhelmed and needed an accommodation to address spikes in her anxiety, stress and/or depression, Plaintiff would seek a short-term accommodation, such as a temporary schedule change or a short period of time off. With these periodic accommodations, Plaintiff was able to do her job at GGF.” (DRSS, ¶ 24.)

The additional facts set forth by defendant that are disputed include:

“Prior to April 19, 2019, Plaintiff resisted what she believed were GGF’s attempts to discriminate against her based upon her disability in the following ways: (1) Plaintiff protested GGF’s rescission of a scholarship Plaintiff had been awarded before her leave because Plaintiff was on a leave of absence and not currently an ‘active’ employee; and (2) Plaintiff protested GGF’s attempts to terminate Plaintiff in April 2019 for being on a leave of absence too long.” (DRSS, ¶ 7.)

“Effective September 1, 2019, Defendant terminated Plaintiff’s employment for the sole reason that Plaintiff was unable to return to work by September 1, 2019.” [Defendant does not dispute that plaintiff’s employment ended effective September 1, 2019, but disputes that the sole reason was her inability to return to work by September 1, 2019.] (DRSS, ¶ 16.)

ANALYSIS:

1. Objections to Evidence

“In granting or denying a motion for summary judgment or summary adjudication, the court need rule only on those objections to evidence that it deems material to its disposition of the motion. Objections to evidence that are not ruled on for purposes of the motion shall be preserved for appellate review.” (Code Civ. Proc., § 437c, subd. (q).)

Plaintiff objects to several items that GGF submits in support of its MSJ. Most of the objections are to evidence that the court does not deem material to the disposition of the MSJ and need not be ruled upon. To the extent that Russell Ghitterman offers medical and psychological opinions regarding plaintiff, he is unqualified to do so and those objections to his medical and psychological opinions are sustained.

“Authentication of a writing means (a) the introduction of evidence sufficient to sustain a finding that it is the writing that the proponent of the evidence claims it is or (b) the establishment of such facts by any other means provided by law.” (Evid. Code,  1400.) The objections to the deposition transcript of plaintiff are overruled.

GGF objects to nearly every statement contained in the declaration of plaintiff’s primary care physician, Marta Sarransingh, M.D.

“ ‘The same rules of evidence that apply at trial also apply to the declarations submitted in support of and in opposition to motions for summary judgment. Declarations must show the declarant’s personal knowledge and competency to testify, state facts and not just conclusions, and not include inadmissible hearsay or opinion.’ ” [Citation.] “ ‘The declarations in support of a motion for summary judgment should be strictly construed, while the opposing declarations should be liberally construed. [Citation.] This does not mean that courts may relax the rules of evidence in determining the admissibility of an opposing declaration. Only admissible evidence is liberally construed in deciding whether there is a triable issue.’ ” [Citation.]” (Fernandez v. Alexander (2019) 31 Cal.App.5th 770, 779.)

Dr. Sarransingh provides sufficient information regarding her qualifications as a board-certified Family Medicine medical doctor and her personal knowledge of plaintiff’s physical and mental conditions since December 2019. She properly authenticates the documents attached to her declaration. GGF’s objections to Dr. Sarransingh’s declaration are overruled. Dr. Sarransingh’s declaration is admissible and will be liberally construed in deciding whether there are triable issues.

No other objections to evidence, by either plaintiff or GGF, are material to the disposition of the MSJ and need not be ruled upon.

2. Standard

A defendant’s motion for summary judgment asks the court to determine that the entire action has no merit, and to terminate the action without the necessity of a trial. (Code Civ. Proc., § 437c, subd. (a).) The procedure enables the court to look behind the pleadings to determine whether the party against whom the motion is directed has evidence to back up the claims. The court must determine from the evidence presented that there is no triable issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).)

The moving party bears the burden of persuasion that that there is no triable issue of material fact, and that it is entitled to judgment as a matter of law. (Aguilar v. Atlantic Richfield Co. (2001) 235 Cal.4th 826, 850.) Consequently, a defendant moving for summary judgment bears the burden of persuasion that one or more elements of the cause of action in question cannot be established, or that there is a complete defense thereto. (Ibid.) The motion must be supported by evidentiary facts, not merely the ultimate facts. Further, conclusions of fact or law are not sufficient to support a motion for summary judgment. (Snider v. Snider (1962) 200 Cal.App.2d 741, 751.) 

Once a moving defendant meets its initial burden, the burden shifts to the plaintiff to produce evidence to prove the existence of a triable issue of fact regarding that element of its cause of action or the defense at issue in the motion, and if plaintiff is unable to do so, defendant will be entitled to judgment as a matter of law. (Saelzler v. Advanced Group 400 (2001) 35 Cal.4th 763, 780-781.)

In ruling on a motion for summary judgment, the trial court must consider all of the evidence and all of the inferences reasonably drawn therefrom (Code Civ. Proc., § 437c, subd. (c)) and must view the evidence and inferences in the light most favorable to the opposing party. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 843.) In examining the sufficiency of the affidavits filed in connection with a summary judgment motion, those filed by the moving party are strictly construed, and those of the opposing party are liberally construed. (D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 20-21.)

In resolving the motion, the court may not weigh the evidence. (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 840.) Rather, the role of the trial court in resolving a summary judgment motion is to determine whether issues of fact exist, not to decide the merits of the issues. (Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107.) A triable issue of material fact exists only 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. (Aguilar v. Atlantic Richfield, supra, 25 Cal.4th at p. 850.)

3. First, Fourth, and Fifth Causes of Action – Qualified Individual with a Disability

“FEHA prohibits several employment practices relating to physical disabilities. First, it prohibits employers from refusing to hire, discharging, or otherwise discriminating against employees because of their physical disabilities. (Gov. Code, § 12940, subd. (a).) Second, it prohibits employers from failing to make reasonable accommodation for the known physical disabilities of employees. (Id., subd. (m).) Third, it prohibits them from failing to engage in a timely and good faith interactive process with employees to determine effective reasonable accommodations. (Id., subd. (n).) Fourth, it prohibits them from retaliating against employees for opposing practices forbidden by FEHA. (Gov. Code, § 12940, subd. (h).) Separate causes of action exist for each of these unlawful practices.” (Nealy v. City of Santa Monica (2015) 234 Cal.App.4th 359, 371 (Nealy).)

“A prima facie case of disability discrimination under FEHA requires the employee to show he or she (1) suffered from a disability, (2) was otherwise qualified to do his or her job, and (3) was subjected to adverse employment action because of the disability. [Citation.] Once the employee establishes his or her prima facie case, “ ‘the burden then shifts to the employer to offer a legitimate, nondiscriminatory reason for the adverse employment action.’ ” [Citation.] The employee may still defeat the employer’s showing with evidence that the stated reason is pretextual, the employer acted with discriminatory animus, or other evidence permitting a reasonable trier of fact to conclude the employer intentionally discriminated. [Citation.]” (Nealy, supra, 234 Cal.App.4th at p. 378.)

GGF argues that the first, fourth, and fifth causes of action fail because “Plaintiff is unable to show an essential element of these causes of action, that she is a QID. Her needs for accommodation are unreasonable as a matter of law and disqualify her from FEHA protection for disability discrimination.” (MSJ, p. 4, ll. 18-21.) [Note: in the notice of motion, GGF claims that plaintiff’s third, sixth, and seventh causes of action are also barred because plaintiff is unable to show that she is a qualified individual with a disability.]

“[A] qualified individual is someone who is able to perform the essential functions of his or her job, with or without reasonable accommodation.” (Nealy, supra, 234 Cal.App.4th at p. 378.)

GGF’s argument revolves around plaintiff’s requests for accommodations at law school related to difficulty concentrating, experiencing excessive worry, and feeling depressed and hopeless. On March 3, 2020, formal ADA accommodations for law school were given that included extra time to complete exams, limiting plaintiff to one exam per day, and having a quiet setting for the exams. The accommodations would remain throughout plaintiff’s pursuit of a law degree. On March 10, 2020, plaintiff requested a letter from her therapist stating that plaintiff was permanently disabled due to her anxiety. Plaintiff’s anxiety is aggravated by conflict or stress and, three and one-half years after plaintiff took leave of absence from GGF, plaintiff took a leave of absence from law school due to being overwhelmed and additional duties including serving as a power of attorney. As noted above, plaintiff testified at deposition that she found working at GGF more stressful than law school. GGF argues that this information demonstrates that plaintiff “is currently and at all times since going out on leave been incapable of working for GGF and accordingly there is no reasonable accommodation that would have allowed her to return to work at GGF.” (MSJ, p. 6, ll. 5-9.)

GGF’s MSJ is not supported by a declaration from any medical or psychological expert that supports their position. Rather, GGF relies on records from plaintiff’s therapist. GGF then extrapolates and speculates that plaintiff would be incapable of working for GGF regardless of any accommodations. It does not logically follow that because plaintiff required accommodations in law school, that she continues to suffer psychological issues, and that she finds working at GGF more stressful, that no reasonable accommodations would allow her to perform her functions at GGF. In essence, GGF is arguing its case in chief and asking the court to weigh disputed evidence. The court may not do so in ruling on an MSJ. As such, the MSJ based on this argument must be denied.

Further, “ ‘Under FEHA, an employer must engage in a good faith interactive process with the disabled employee to explore the alternatives to accommodate the disability.’ ” [Citation.] FEHA requires an informal process with the employee to attempt to identify reasonable accommodations, not necessarily ritualized discussions. [Citation.]” (Nealy, supra, 234 Cal.App.4th at p. 379.)

GGF provides no admissible evidence that it ever engaged in a good faith interactive process with plaintiff.

GGF has failed to negate any element of plaintiff’s first, fourth, and fifth causes of action and has not established a complete defense to any of them. As such, GGF has not met its burden and the burden has not shifted to plaintiff. To find otherwise, the court would need to improperly weigh conflicting evidence.

In the alternative, had GGF met its burden, plaintiff has established the existence of a triable issue of fact by providing the declaration of plaintiff’s primary care physician, Marta Sarransingh, M.D. Dr. Sarransingh declares that she has been plaintiff’s primary care physician since December 2019, following the retirement of plaintiff’s prior primary care physician. Dr. Sarransingh declares that on January 27, 2020, plaintiff was released back to work with no restrictions, effective February 30, 2020. The release is an all-purpose release. (Sarransingh Dec., ¶ 5 & Exh. 1.) Plaintiff “continues to receive medical care and treatment for anxiety, depression, PTSD, and other mental health issues, and she continues to take psychotropic medications to ensure she can self-regulate her ability to think clearly, remain focused, and complete tasks/process information, and she requires future medical care.” (Sarransingh Dec., ¶ 6 & Exh. 2.) Plaintiffs “need for future medical care, including the need for regular monitoring of her psychotropic medications, does not impact her ability to work, even in a stressful environment. Indeed, the very purpose of the psychotropic medications is to ensure [plaintiff’s] ability to continue to function productively, including working. [Plaintiff] is, and has been, able to work, with or without restrictions or accommodations since February 3, 2020.” (Sarransingh Dec., ¶ 7.) Had GGF shifted the burden to plaintiff, Dr. Sarransingh’s declaration creates triable issues of facts that cannot be decided by way of summary judgment or summary adjudication.

4. Second and Fourth Causes of Action - Retaliation

Again, the body of the MSJ is inconsistent with the notice of motion. The notice of motion states that GGF is entitled to judgment on plaintiff’s second, third, fourth, sixth, and seventh causes of action because plaintiff is unable to show she engaged in a protected activity and that GGF subjected her to an adverse employment action that was caused by the protected activity.

“Government Code section 12940, subdivision (h) makes it unlawful for an employer “ ‘to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part.’ ” (See also Lab. Code, § 1102.5, subd. (b).) To establish a prima facie case of retaliation, the plaintiff must show he or she engaged in a “ ‘protected activity,’ ” the employer subjected the employee to an adverse employment action, and a causal link existed between the protected activity and the employer’s action. [Citation.]” (McRae v. Department of Corrections & Rehabilitation (2006) 142 Cal.App.4th 377, 386.)

GGF argues, very briefly, that plaintiff’s claims of retaliation are premised on GGF withdrawing representation of her related to plaintiff’s 2018 motor vehicle accident and by withholding a scholarship that has been adjudicated as not owed by the State Labor Commissioner.

The problem with GGF’s argument is that it does not fully address plaintiff’s retaliation claims. Plaintiff does allege, at paragraph 23 of her complaint, as part of her general factual allegations that, “[o]n August 7, 2019, in anticipation for Plaintiff’s anticipated termination and in apparent retaliation for filing the EEOC complaint, GHITTERMAN terminated its representation of Plaintiff in her motor vehicle accident.” However, plaintiff additionally alleges: “Plaintiff engaged in the protected activities of requesting accommodation, requesting medical leave and/or exercising Plaintiff’s right to medical leave, and complaining about and protesting Defendants’ discriminatory and harassing conduct towards Plaintiff based upon Plaintiff’s disability, medical condition, real or perceived, and use of medical leave.” (Complaint, ¶ 50.) “Plaintiff suffered the adverse employment actions of unlawful discrimination, failure to accommodate, failure to investigate, remedy, and/or prevent discrimination, failure to reinstate and/or return to work, and termination, and was harmed thereby.” (Complaint, ¶ 51.)

Because GGF has failed to address any of the other alleged retaliatory actions, it has not negated any element of plaintiff’s retaliation claims, nor has it established a complete defense to the claims. “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Code Civ. Proc., § 437c, subd. (f)(1).) GGF was not successful in shifting the burden to plaintiff. Genuine triable issues of material fact remain that cannot be disposed of by way of summary judgment or summary adjudication.

5. Third, Sixth, and Seventh Causes of Action – Failure to Prevent Discrimination and Retaliation, Wrongful Termination, and Declaratory Relief

As with the other sections, GGF is not consistent with its notice. The notice states that GGF is entitled to judgment on plaintiff’s seventh cause of action because plaintiff is unable to show there was an employment contract between herself and GGF.

GGF’s entire argument is:

“For all of the same reasons discussed above, Plaintiff’s Third, Sixth and Seventh causes of action that arise from the same allegations of discrimination and retaliation also fail as a matter of law. Contrary to Plaintiff’s claim for declaratory relief, GGF is entitled to judgment as a matter of law in its favor and against Plaintiff. Because Plaintiff’s causes of action for discrimination and retaliation fail, she cannot possibly prevail on a claim that GGF improperly failed to prevent conduct that never occurred in the first place. Similarly, Plaintiff’s cause of action for wrongful termination in violation of public policy also fails because it relies on the same futile claims of discrimination and retaliation. Moreover, Plaintiff was an at-will employee who worked less than one year. There was no contractual agreement, implied or otherwise.” (MSJ, p. 7, ll. 7-16.) No legal authority or reference to admissible evidence is set forth.

“A motion for summary judgment must be supported by evidence, and it is the moving party who bears the initial burden of producing evidence.” (Boyle v. Certainteed Corp. (2006) 137 Cal.App.4th 645, 655.) As with GGF’s other arguments, GGF has failed to negate any element of plaintiff’s claims and has not established a complete defense to any of the causes of action. As such, there remain genuine triable issues of material fact. Summary judgment, and summary adjudication, must be denied.

6. Sanctions

Plaintiff moves for sanctions against GGF pursuant to Code of Civil Procedure sections 128.5 and 128.7 for the bringing of the MSJ.

Code of Civil Procedure section 128.5 provides, in pertinent part:

“(a) A trial court may order a party, the party’s attorney, or both, to pay the reasonable expenses, including attorney’s fees, incurred by another party as a result of actions or tactics, made in bad faith, that are frivolous or solely intended to cause unnecessary delay. This section also applies to judicial arbitration proceedings under Chapter 2.5 (commencing with Section 1141.10) of Title 3 of Part 3.

“(b) For purposes of this section:

“(1) “Actions or tactics” include, but are not limited to, the making or opposing of motions or the filing and service of a complaint, cross-complaint, answer, or other responsive pleading. The mere filing of a complaint without service thereof on an opposing party does not constitute “actions or tactics” for purposes of this section.

“(2) “Frivolous” means totally and completely without merit or for the sole purpose of harassing an opposing party.”

Code of Civil Procedure section 128.7 provides, in pertinent part:

“(b) By presenting to the court, whether by signing, filing, submitting, or later advocating, a pleading, petition, written notice of motion, or other similar paper, an attorney or unrepresented party is certifying that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, all of the following conditions are met:

“(1) It is not being presented primarily for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.

“(2) The claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law.

“(3) The allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.”

While GGF has failed to prevail on their MSJ, the court does not find that the motion was brought in bad faith, frivolous, solely brought to cause unnecessary delay, or brought for any other improper purpose. GGF simply failed to meet its evidentiary burden. Failure to prevail on a motion is not necessarily sanctionable conduct and no sanctions will be assessed against GGF for bringing the MSJ.