Joseph Angel Gaitan vs Homer T Hayward Lumber Co

Case Number

23CV00886

Case Type

Hearing Date / Time

Wed, 04/24/2024 - 10:00

Nature of Proceedings

Defendants Motion for Summary Judgment

Tentative Ruling

For Plaintiff Joseph Angel Gaitan [“Plaintiff”]: Gabriela Diaz, Liliuokalani H. Martin Michael Juarez-Munoz

For Homer T Hayward Lumber Company [“HLC”]: Robert J. Wilger, Sarah Jabin

Issue

Defendants Motion for Summary Judgment

RULINGS

For the reasons set out below:

1. Plaintiffs objection that the MSJ was untimely filed is DENIED

2. HLC’s MSJ against Counts #1 and #2 and #3 and #4 are DENIED.

3. HLC’s MSJ as to the Plaintiff’s Punitive Damage Claim is GRANTED.

Acknowledgements

The Court acknowledges and appreciates the professional work done by counsel in the case.[1] The case has been contentious; acrimonious at times.

Background

This case was filed 3/3/23; unverified complaint; Plaintiff alleges causes of action against HLC for retaliation, wrongful termination. Plaintiff seeks all unpaid wages and penalties, attorney’ s fees and cost under the labor code; seeks damages for lost wages, lost future wages, emotional distress, punitive damages, attorneys' fees, and costs. The Complaint is set out in 4 Counts: (1) Retaliation Labor Code section 98.6; (2) Retaliation Labor Code sections 1102.5 & 1102.6; (3) Wrongful Termination; (4) Violation of COVID-19 Paid Sick Leave.

Estimates a 10-day jury trial. Jury fees posted 6/20/23.

Answer filed 6/12/24; General Denial; 11 Affirmative Defenses. Estimates 5-day non-jury trial.

On 7/5/24 the Trial was set for 5/29/24; MSC set for 5/3/24; final CMC was on 1/17/24.

On 1/17/24 counsel appeared and the 5/3/24 Settlement Conference and the Trial Confirmation set for 5/29/24 were confirmed.

On 2/9/24 HLC filed a Motion for Summary Judgment - 4 pages; Request for Judicial Notice - 23 pages; Memorandum of Points and Authorities – 23 pages; Separate Statement – 23 pages.

Motion for Summary Judgment; summarized; moves pursuant to Code of Civil Procedure section 437c for summary judgment, or in the alternative, summary adjudication of Plaintiff’s Complaint and all causes of action therein, including Plaintiff’s claim for punitive damages; contends (1) HLC is entitled to summary judgment on Plaintiff’s entire Complaint as against HLC, because there are no triable issues of material fact as to any of Plaintiff’s causes of action and punitive damages claims; specifically, one or more of the elements of each of Plaintiff’s causes of action and punitive damages claims cannot be established and HLC is therefore entitled to judgment in its favor as a matter of law (2) In the alternative, HLC moves for an order entering summary adjudication, pursuant to California Code of Civil Procedure section 437c(f), on the punitive damages claim.

ISSUE NO. 1:  Plaintiff’s First Cause of Action for retaliation under Labor Code section 98.6 fails because Plaintiff cannot establish, he engaged in conduct protected by Labor Code section 98.6. 

ISSUE NO. 2:  Alternatively, Plaintiff’s First Cause of Action for retaliation under Labor Code section 98.6 fails because Plaintiff cannot establish, he suffered an adverse employment action. 

ISSUE NO. 3:  Alternatively, Plaintiff’s First Cause of Action for retaliation under Labor Code section 98.6 fails because Plaintiff cannot establish a connection between conduct protected by Labor Code section 98.6 and an adverse employment action. 

ISSUE NO. 4:  Alternatively, Plaintiff’s First Cause of Action for retaliation under Labor Code section 98.6 fails because Defendant had a legitimate, independent reason, unrelated to any conduct protected by Labor Code section 98.6, for the alleged adverse employment action. 

ISSUE NO. 5: Plaintiff’s Second Cause of Action for retaliation under Labor Code section 1102.5 fails because Plaintiff cannot establish that he engaged in conduct protected by Labor Code section 1102.5.   

ISSUE NO. 6:  Alternatively, Plaintiff’s Second Cause of Action for retaliation under Labor Code section 1102.5 fails because Plaintiff cannot establish that he suffered an adverse employment action. 

ISSUE NO. 7:  Alternatively, Plaintiff’s Second Cause of Action for retaliation under Labor Code section 1102.5 fails because Plaintiff cannot establish a connection between conduct protected by Labor Code section 1102.5 and an adverse employment action. 

ISSUE NO. 8:  Alternatively, Plaintiff’s Second Cause of Action for retaliation under Labor Code section 1102.5 fails because Defendant had a legitimate, independent reason, unrelated to any conduct protected by Labor Code section 1102.5, for the alleged adverse employment action. 

ISSUE NO. 9: Plaintiff’s Third Cause of Action for wrongful termination in violation of public policy fails because Plaintiff cannot establish his employment was involuntarily terminated by Defendant.

ISSUE NO. 10:  Plaintiff’s Third Cause of Action for wrongful termination in violation of public policy fails because it is duplicative of Plaintiff’s First and Second Causes of Action and he cannot establish his First and Second Causes of Action.

ISSUE NO. 11:  Plaintiff’s Fourth Cause of Action for Violation of COVID-19 Paid Sick Leave fails because Plaintiff was paid COVID-19 Supplemental Paid Sick Leave by Defendant in accordance with the law. 

ISSUE NO. 12:  Plaintiff’s punitive damages claims fail because there is no clear and convincing evidence that Plaintiff experienced any malicious, oppressive, or fraudulent conduct by Defendant.

ISSUE NO. 13:  Alternatively, Plaintiff’s punitive damages claims fail there is no clear and convincing evidence that any officer, director, or managing agent of Defendant acted with malice, oppression, or fraud or ratified the same toward Plaintiff.

Request for Judicial Notice: Judicial notice is the recognition and acceptance by the Court, for use by the trier of fact or by the Court, of the existence of a matter of law or fact that is relevant to an issue in the action without requiring formal proof of the matter. Judicial notice may not be taken of any matter unless authorized or required by law. Matters that are subject to judicial notice are listed in Evid. Code §§ 451 and 452. A matter ordinarily is subject to judicial notice only if the matter is reasonably beyond dispute.

Exhibit A: The 2022 Supplemental Paid Sick Leave in the Labor Commissioner’s Frequently Asked Questions webpage located at the State of California Department of Industrial Relations Website – California’s 2022 COVID-19 Supplemental Paid Sick Leave Expired on December 31, 2022, updated in March 2022; last accessed on February 7, 2024.

Ruling: GRANTED. Taking judicial notice of a document is not the same as accepting the truth of its contents or accepting a particular interpretation of its meaning. While Courts take judicial notice of public records, they do not take notice of the truth of matters stated therein. When judicial notice is taken of a document, the truthfulness and proper interpretation of the document are disputable. Herrera v. Deutsche Bank National Trust Co., (2011) 196 Cal. App. 4th 1366.)  [Emphasis the Court’s]

Supported by a Separate Statement as follows:  

ISSUE 1: (1) On April 23, 2021, Plaintiff was hired and employed by HLC as a Truss Assembler at HLC’s Santa Maria facility. (2) Plaintiff did not report to work from February 22, 2022, through February 25, 2022. (3) Plaintiff returned to work on February 28, 2022. (4) Upon his return, Plaintiff told human resources he was absent from work because his wife had COVID-19 and Plaintiff needed to take care of her. (5) Plaintiff then requested to use his COVID-19 paid sick leave for the four days he missed from work. (6) Human resources asked Plaintiff to provide documentation evidencing he was out because his wife had COVID-19. (7) Once Plaintiff established, he missed work due to COVID-19, HLC authorized Plaintiff’s 32 hours of COVID-19 Supplemental Paid Sick Leave later that same day to be paid in Plaintiff’s March 7, 2022, paycheck. (8) Plaintiff admits he understood he would be paid COVID-19 Supplemental Paid Sick Leave for his 4-day absence. (9) On March 3, 2022, HLC mailed Plaintiff his final paycheck. (10) Plaintiff’s final paycheck included his COVID-19 Supplemental Paid Sick Leave for his absences from February 22, 2022, through February 25, 2022. (11) Plaintiff concedes he was paid his COVID-19 Supplemental Paid Sick Leave.  

ISSUE 2. (12) On March 1, 2022, Plaintiff met with Mr. Cuevas-Garcia, Lupe Munoz, Rudi Lokkart, and Lynn Edie to discuss his violation of HLC policies. (13) At the meeting, Plaintiff was provided a formal written warning and a 2-day suspension. (14) In the written warning, HLC explained to Plaintiff that HLC “had several opportunities to terminate his employment, the last one was walking off the job which is basically quitting your job but that [HLC] chose not to do that.”  (15) Under HLC’s policies, walking off the job on February 21, 2022 “would normally lead to immediate termination.” (16) HLC was giving Plaintiff “one final opportunity to immediately cease and correct [his] attitude and unwillingness to follow instructions” by suspending him for 2 days to provide Plaintiff an opportunity to change his behavior. (17) On March 3, 2022, Plaintiff failed to report to work as scheduled at 5:00 a.m. and did not work at all that day. (18) Plaintiff did not call in or otherwise notify HLC that he was not going to report to work as scheduled. (19) In response, HLC treated this a voluntary resignation due to job abandonment and separated Plaintiff. (20) After his separation, Plaintiff filed an unemployment claim with the EDD, which was ultimately denied due to Plaintiff’s job abandonment. (21) Plaintiff did not appeal the EDD’s denial of his unemployment claim.  

ISSUE 3. (22) On February 21, 2022, Plaintiff left his shift early without first telling Mr. Cuevas-Garcia or getting permission to leave early. (23) The next day, Plaintiff failed to show up to work and later informed Mr. Cuevas-Garcia, after his shift had already started, that he had to take his wife to the emergency room.  (24) Plaintiff did not report to work from February 22, 2022, through February 25, 2022. (25) After Plaintiff failed to come to work on February 25, 2022, HLC decided to draft a formal written warning and temporary suspension to address Plaintiff’s persistent absences and conduct. (26) Plaintiff returned to work on February 28, 2022, and was notified of a meeting about his conduct the next day. (27) On March 1, 2022, Plaintiff met with Mr. Cuevas-Garcia, Lupe Munoz, Rudi Lokkart, and Lynn Edie to discuss his hostile conduct, insubordination, and persistent absences. (28) At the meeting, Plaintiff was provided a formal written warning and a 2-day suspension. (29) In the written warning, HLC explained to Plaintiff that HLC “had several opportunities to terminate his employment, the last one was walking off the job which is basically quitting your job but that [HLC] chose not to do that. (30) Plaintiff understood that walking off the job, as he did on February 21, 2022, could have led to immediate termination. (31) HLC was giving Plaintiff “one final opportunity to immediately cease and correct [his] attitude and unwillingness to follow instructions” by suspending him for 2 days to provide Plaintiff an opportunity to change his behavior. (32) On March 3, 2022, Plaintiff failed to report to work as scheduled at 5:00 a.m. and did not work at all that day. (33) Plaintiff did not call in or otherwise notify HLC that he was not going to report to work as scheduled. (34) In response, HLC treated this a voluntary resignation due to job abandonment and separated Plaintiff.  

ISSUE 4. (35) On March 1, 2022, Plaintiff met with Mr. Cuevas-Garcia, Lupe Munoz, Rudi Lokkart, and Lynn Edie to discuss his hostile conduct, insubordination, and persistent absences. (36) At the meeting, Plaintiff was provided a formal written warning and a 2-day suspension. (37) In the written warning, HLC explained to Plaintiff that HLC “had several opportunities to terminate his employment, the last one was walking off the job which is basically quitting your job but that [HLC] chose not to do that.” (38) Plaintiff understood that walking off the job, as he did on February 21, 2022, could have led to immediate termination. (39) On March 3, 2022, Plaintiff failed to report to work as scheduled at 5:00 a.m. and did not work at all that day. (40) Plaintiff did not call in or otherwise notify HLC that he was not going to report to work as scheduled.  (41) In response, HLC treated this a voluntary resignation due to job abandonment and separated Plaintiff.  

ISSUE 5. (42) On April 23, 2021, Plaintiff was hired and employed by HLC as a Truss Assembler at HLC’s Santa Maria facility. (43) Plaintiff did not report to work from February 22, 2022, through February 25, 2022. (44)  Plaintiff returned to work on February 28, 2022.   (45)  Upon his return, Plaintiff told human resources he was absent from work because his wife had COVID-19 and Plaintiff needed to take care of her. (46) Plaintiff then requested to use his COVID-19 paid sick leave for the four days he missed from work. (47) Human resources asked Plaintiff to provide documentation evidencing he was out because his wife had COVID-19. (48)  Once Plaintiff established, he missed work due to COVID-19, HLC authorized Plaintiff’s 32 hours of COVID-19 Supplemental Paid Sick Leave later that same day to be paid in Plaintiff’s March 7, 2022, paycheck. (49)  Plaintiff admits he understood he would be paid COVID-19 Supplemental Paid Sick Leave for his 4-day absence. (50) On March 3, 2022, HLC mailed Plaintiff his final paycheck. (51)  Plaintiff’s final paycheck included his COVID-19 Supplemental Paid Sick Leave for his absences from February 22, 2022, through February 25, 2022. (52) Plaintiff concedes he was paid his COVID-19 Supplemental Paid Sick Leave.  

ISSUE 6. (53) On March 1, 2022, Plaintiff met with Mr. Cuevas-Garcia, Lupe Munoz, Rudi Lokkart, and Lynn Edie to discuss his violation of HLC policies. (54)  At the meeting, Plaintiff was provided a formal written warning and a 2-day suspension. (55)  In the written warning, HLC explained to Plaintiff that HLC “had several opportunities to terminate his employment, the last one was walking off the job which is basically quitting your job but that [HLC] chose not to do that.” (56)  Under HLC’s policies, walking off the job on February 21, 2022 “would normally lead to immediate termination.”  (57)  HLC was giving Plaintiff “one final opportunity to immediately cease and correct [his] attitude and unwillingness to follow instructions” by suspending him for 2 days to provide Plaintiff an opportunity to change his behavior. (58)  On March 3, 2022, Plaintiff failed to report to work as scheduled at 5:00 a.m. and did not work at all that day. (59)  Plaintiff did not call in or otherwise notify HLC that he was not going to report to work as scheduled. (60)  In response, HLC treated this a voluntary resignation due to job abandonment and separated Plaintiff. (61)  After his separation, Plaintiff filed an unemployment claim with the EDD, which was ultimately denied due to Plaintiff’s job abandonment. (62)  Plaintiff did not appeal the EDD’s denial of his unemployment claim.

ISSUE 7. (63)  On February 21, 2022, Plaintiff left his shift early without first telling Mr. Cuevas-Garcia or getting permission to leave early. (64)  The next day, Plaintiff failed to show up to work and later informed Mr. Cuevas-Garcia, after his shift had already started, that he had to take his wife to the emergency room. (65)  Plaintiff did not report to work from February 22, 2022, through February 25, 2022. (66)  After Plaintiff failed to come to work on February 25, 2022, HLC decided to draft a formal written warning and temporary suspension to address Plaintiff’s persistent absences and conduct. (67)  Plaintiff returned to work on February 28, 2022, and was notified of a meeting about his conduct the next day. (68)  On March 1, 2022, Plaintiff met with Mr. Cuevas-Garcia, Lupe Munoz, Rudi Lokkart, and Lynn Edie to discuss his hostile conduct, insubordination, and persistent absences. (69)  At the meeting, Plaintiff was provided a formal written warning and a 2-day suspension. (70)  In the written warning, HLC explained to Plaintiff that HLC “had several opportunities to terminate his employment, the last one was walking off the job which is basically quitting your job but that [HLC] chose not to do that.” (71) Plaintiff understood that walking off the job, as he did on February 21, 2022, could have led to immediate termination. (72)  HLC was giving Plaintiff “one final opportunity to immediately cease and correct [his] attitude and unwillingness to follow instructions” by suspending him for 2 days to provide Plaintiff an opportunity to change his behavior. (73) On March 3, 2022, Plaintiff failed to report to work as scheduled at 5:00 a.m. and did not work at all that day. (74) Plaintiff did not call in or otherwise notify HLC that he was not going to report to work as scheduled. (75) In response, HLC treated this a voluntary resignation due to job abandonment and separated Plaintiff.      

ISSUE 8. (76)  On March 1, 2022, Plaintiff met with Mr. Cuevas-Garcia, Lupe Munoz, Rudi Lokkart, and Lynn Edie to discuss his hostile conduct, insubordination, and persistent absences. (77)  At the meeting, Plaintiff was provided a formal written warning and a 2-day suspension. (78)  In the written warning, HLC explained to Plaintiff that HLC “had several opportunities to terminate his employment, the last one was walking off the job which is basically quitting your job but that [HLC] chose not to do that.”  (79)  Plaintiff understood that walking off the job, as he did on February 21, 2022, could have led to immediate termination. (80) On March 3, 2022, Plaintiff failed to report to work as scheduled at 5:00 a.m. and did not work at all that day. (81) Plaintiff did not call in or otherwise notify HLC that he was not going to report to work as scheduled. (82)  In response, HLC treated this a voluntary resignation due to job abandonment and separated Plaintiff.  

ISSUE 9. (83)  On March 1, 2022, Plaintiff met with Mr. Cuevas-Garcia, Lupe Munoz, Rudi Lokkart, and Lynn Edie to discuss his hostile conduct, insubordination, and persistent absences. (84)  At the meeting, Plaintiff was provided a formal written warning and a 2-day suspension. (85) In the written warning, HLC explained to Plaintiff that HLC “had several opportunities to terminate his employment, the last one was walking off the job which is basically quitting your job but that [HLC] chose not to do that.”  (86)  Plaintiff understood that walking off the job, as he did on February 21, 2022, could have led to immediate termination. (87)  HLC was giving Plaintiff “one final opportunity to immediately cease and correct [his] attitude and unwillingness to follow instructions” by suspending him for 2 days to provide Plaintiff an opportunity to change his behavior. (88)  On March 3, 2022, Plaintiff failed to report to work as scheduled at 5:00 a.m. and did not work at all that day. (89) Plaintiff did not call in or otherwise notify HLC that he was not going to report to work as scheduled. (90) In response, HLC treated this a voluntary resignation due to job abandonment and separated Plaintiff. (91)  After his separation, Plaintiff filed an unemployment claim with the EDD, which was ultimately denied due to Plaintiff’s job abandonment. (92) Plaintiff did not appeal the EDD’s denial of his unemployment claim.     

ISSUE 10. (93) Plaintiff alleges in support of his Third Cause of Action for Wrongful Termination in Violation of Public Policy that: “At all relevant times mentioned in this complaint, Labor Code §98.6 was in full force and effect and was binding upon Defendants and each of them.  This law prohibits retaliation against employees who complain about unpaid wages and/or attempt to exercise the rights under the Labor Code.  Labor Code § 98.6 reflects the State’s broad public policy interest in protecting the rights of individual employees and job applicants who could not otherwise afford to protect themselves from violations of the Labor Code.” (94) Plaintiff alleges in support of his Third Cause of Action for Wrongful Termination in Violation of Public Policy that: “At all relevant times mentioned in this complaint, Labor Code Section 1102.5 was in full force and effect and was binding upon Defendants and each of them. This law prohibits retaliation against employees who disclose reasonable suspicions of illegal activity or conduct by their employer to a government or law enforcement agency, or to employer itself. Labor Code §1102.5 reflects the State's broad public policy interest in encouraging workplace "whistleblowers,'' who may without fear of retaliation report concerns regarding an employer's suspected illegal conduct, irrespective of whether the reporting is made to governmental agencies or to the employer itself, and irrespective of whether the employee's suspicions are correct that the challenged conduct actually violates some law.” (95)  Plaintiff alleges in support of his Third Cause of Action for Wrongful Termination in Violation of Public Policy that: “Plaintiff is informed and believes, and based thereupon, alleges, that Plaintiff’s engagement in protected activities under Labor Code §§ 98.6 and/or 1102.5 was a proximate cause in Plaintiff’s damages as stated below.

ISSUE 11. (96)  On February 21, 2022, Plaintiff left his shift early without first telling Mr. Cuevas-Garcia or getting permission to leave early. (97)  The next day, Plaintiff failed to show up to work and later informed Mr. Cuevas-Garcia that he had to take his wife to the emergency room. (98)  Plaintiff, again, failed to show up to work on February 23, 2022, and February 24, 2022, for the same reason. (99)  A week later, Plaintiff returned to work on February 28, 2022. (100) Upon his return, Plaintiff told human resources he was absent from work because his wife had COVID-19 and Plaintiff needed to take care of her. 101. Plaintiff then requested to use his COVID-19 paid sick leave for the four days he missed from work. (102) Human resources asked Plaintiff to provide documentation evidencing he was out because his wife had COVID-19. (103) Once Plaintiff established, he missed work due to COVID-19, HLC authorized Plaintiff’s 32 hours of COVID-19 Supplemental Paid Sick Leave later that same day to be paid in Plaintiff’s March 7, 2022, paycheck. (104) Plaintiff admits he understood he would be paid COVID-19 Supplemental Paid Sick Leave for his 4-day absence.  (105) On March 3, 2022, HLC issued Plaintiff’s final paycheck due to his job abandonment and mailed it to Plaintiff. (106) The final paycheck covered pay period of February 16, 2022, to February 28, 2022. (107) Plaintiff’s final paycheck reflected his COVID-19 paid sick leave for his absences from February 22, 2022, through February 25, 2022.

ISSUE 12. (108) On February 21, 2022, Plaintiff left his shift early without first telling Mr. Cuevas-Garcia or getting permission to leave early. (109) Leaving his shift early on February 21, 2022, resulted in Plaintiff receiving the written warning and suspension on March 1, 2022. (110) On March 3, 2022, Plaintiff voluntarily abandoned his job when he failed to report to work as scheduled and was separated from HLC.

ISSUE 13. (111) Plaintiff claims Lupe Munoz retaliated against him. (112) As the Human Resources Manager for HLC, Ms. Munoz is neither a corporate officer nor director of HLC. (113) Ms. Munoz does not qualify as a managing agent of HLC because she lacks the requisite authority and judgment to determine corporate policies for HLC.  

Supported by Declarations and exhibits:

Declaration of Robert J. Wilger.

Declaration of Lupe Munoz.  

Memorandum of Points and Authorities; summarized; contends: Plaintiff was employed by HLC for less than a year before showing his true hostile, insubordinate, and unreliable character. Plaintiff brings this lawsuit to shift the focus away from his hostile, insubordinate conduct on to fictitious, unsupported allegations; Plaintiff’s complaint attempts to mislead the Court into believing that HLC retaliated against him for requesting COVID-19 paid sick leave; cannot be further from the truth; he was paid for all COVID-19 paid sick leave upon his request and was given repeated opportunities to improve his behavior with HLC, but failed to do so – each of which is well documented and admitted by Plaintiff; the undisputed facts establish that Plaintiff cannot establish any of his causes of action; all of Plaintiff’s causes of action lack merit such that HLC is entitled to summary judgment or, in the alternative, summary adjudication as a matter of law; Plaintiff was provided HLC’s Employee Handbook, which contained its (1) anti-retaliation policies, (2) attendance policies, and (3) code of conduct policies; Plaintiff signed the Employee Handbook acknowledgment and receipt, verifying that he read and understood these policies.

Less than a year into his employment, Plaintiff began causing interpersonal issues with his coworkers and supervisor and engaging in persistent absenteeism in violation of HLC’s policies; demonstrated hostility towards HLC’s staff; he received COVID-19 supplemental paid sick leave for his absence in 2/2022; he received a written warning and suspension based on his behavior; he voluntarily resigned from employment with HLC when he failed to report to work on 3/3/23.  

Plaintiff’s First, Second and Third Causes of Action for retaliation are premised on the allegation that HLC refused to provide Plaintiff COVID-19 paid sick leave, Plaintiff complained about the failure of HLC to pay him the COVID-19 paid sick leave and HLC terminated his employment for his complaints that he was not provided such paid sick leave; Plaintiff’s retaliation claims fail because (1) he cannot establish he engaged in protected activity by protesting the non-payment of the COVID-19 paid sick leave by HLC, (2) there was no adverse employment action taken against Plaintiff by HLC, and (3) Plaintiff voluntarily resigned his employment with HLC by abandoning his job. In Plaintiff’s case, a retaliation claim based on Labor Code section 98.6 requires that there be some form of unpaid wages to the employee, which precipitates either a formal or informal complaint about the non-payment of earned wages.  The undisputed evidence establishes that Plaintiff did not engage in any of the conduct protected by Labor Code section 98.6 and his First Cause of Action should be dismissed as Plaintiff was paid all of his wages prior to his separation from employment on March 3, 2022, so that he could not have made a bona fide complaint protected by Labor Code section 98.6. There is no evidence that Plaintiff complained about being owed any unpaid wages in violation of the Labor Code during his employment with HLC.

Plaintiff cannot prove he engaged in protected activity under California Labor Code section 1102.5 because the undisputed evidence establishes that HLC agreed to pay on the same day he requested COVID-19 paid sick leave and then did pay Plaintiff his COVID-19 paid sick leave.  HLC never violated the California Labor Code by not paying Plaintiff the COVID-19 paid sick leave he requested so that there was no reason for him to threaten to file a government complaint prior to his job abandonment on March 3, 2022. Plaintiff does not allege that HLC had a policy preventing the disclosure of unlawful activity; Plaintiff could not have reasonably believed that his oral request for COVID-19 paid sick leave was based on suspicions of illegal activity or a violation of state or federal law or regulation as he simply asked to use COVID-19 paid sick leave when he returned to work following his four-day absence.

HLC contends, assuming that Plaintiff engaged in any protected activity, which he did not, Plaintiff cannot demonstrate that he suffered an adverse employment following that protected conduct; Plaintiff did not suffer any adverse employment action; Plaintiff was not terminated; he voluntarily abandoned his job; Plaintiff’s claim that he was terminated because he allegedly requested to be paid COVID-19 supplemental paid sick leave is meritless especially given that the COVID-19 paid sick leave was approved the same day he asked for it.  Plaintiff’s job abandonment means that he cannot establish his First and Second Causes of Action for retaliation pursuant to Labor Code sections 98.6 and 1102.5.  

HLC contends, to the extent that Plaintiff argues that his final warning and suspension constitute an adverse employment action, that they do not under the appliable law.  To qualify as an adverse employment action, a Plaintiff must show that the employment action materially affected the terms, conditions, or privileges of employment. Plaintiff’s final written warning and suspension did not materially affect the terms, conditions, or privileges of employment.  Under HLC’s policies, walking off the job on February 21, 2022 “would normally lead to immediate termination.” Instead of terminating Plaintiff, HLC suspended Plaintiff for two days to provide Plaintiff a second chance to change his attitude and behavior and continue his employment with HLC.

Should the Court find that Plaintiff suffered from an adverse employment action by HLC, Plaintiff cannot prove by a preponderance of the evidence that his request for COVID-19 paid sick leave was not a contributing factor to his final warning and suspension.  To establish a claim of retaliation, the employee has the burden to establish, by a preponderance of the evidence, that retaliation for his or her protected activities was a contributing factor in a contested employment action. Even before Plaintiff’s return to work, HLC had already made the decision to suspend Plaintiff’s employment due to his leaving the workplace prior to the end of his shift without authorization, thereby proving that Plaintiff’s requests for COVID-19 paid sick leave had no bearing on his written warning and suspension; Plaintiff cannot prove by a preponderance of the evidence that his request for COVID-19 paid sick leave, which Plaintiff was provided, was a contributing factor to his written warning and suspension.  Because Plaintiff cannot establish any adverse employment action was taken against him because he exercised his rights under the Labor Code, Plaintiff’s retaliation claims under Labor Code sections 98.6 and 1102.5 fail.

HLC argues the Court should grant HLC’s motion for summary adjudication of Plaintiff’s First and Second Causes of Action.

HLC concedes once a Plaintiff establishes by a preponderance of the evidence that their engagement in protected activity was a contributing factor to the employment action, the burden shifts to the employer to demonstrate, by clear and convincing evidence, that it would have taken the action in question for legitimate, independent reasons, even had employee not engaged in protected activity; Plaintiff was suspended for walking off the job on February 21, 2022, without prior approval, which would have subjected to immediate termination in accordance with HLC’s policies; here is clear and convincing evidence that HLC would have suspended Plaintiff regardless of whether or not he requested COVID-19 pay on February 28, 2022, when he returned to work from his absence; Plaintiff cannot establish that he was retaliated against in violation of Labor Code section 1102.5; because Plaintiff cannot establish a claim under Labor Code section 1102.5, he cannot establish a claim under Labor Code section 98.6; the Court should grant HLC’s motion for summary adjudication on Plaintiff’s retaliation cause of action under Labor Code sections 98.6 and 1102.5.

Plaintiff’s 3^rd Count for Wrongful Termination in violation of Public Policy fails because he abandoned his job – and it is duplicative of his 2 retaliation Counts. To establish a prima facie case of wrongful termination in violation of public policy, Plaintiff must show: (1) an employer-employee relationship; (2) Plaintiff was terminated; (3) the termination was substantially motivated by a violation of public policy; and (4) damages. Plaintiff was not terminated from his employment, rather, he voluntarily resigned due job abandonment when he failed to report to work as scheduled on March 3, 2022; Plaintiff cannot prove he was wrongfully terminated because he was not involuntarily terminated by HLC; Plaintiff’s wrongful termination claim is based upon the same facts as his two retaliation causes of action; Plaintiff’s two retaliation causes of action fail; his claim for wrongful termination in violation of public policy also must fail.

As for Plaintiff’s 4^th Count HLC paid Plaintiff his COVID-19 paid sick leave in accordance with the applicable 2022 COVID-19 Paid Sick Leave mandate; effective on February 19, 2022, covered employees in private sectors who worked for employers with 26 or more employees were entitled to 2022 COVID-19 Supplemental Paid Sick leave from January 1, 2022, through September 30, 2022, upon request. Plaintiff admits that HLC paid him COVID-19 paid sick leave for his absences in February 2022. After Plaintiff walked off the job on February 21, 2022, he failed to show up to work for four days Plaintiff concedes he was timely and properly paid his COVID-19 paid sick leave; Plaintiff’s Fourth claim that HLC failed to pay him his COVID-19 paid sick leave is meritless and the Court must grant summary adjudication on Plaintiff’s Fourth Cause of Action for failure to pay COVID-19 Supplemental Paid Sick Leave.

As for Plaintiff’s punitive damage claim, Plaintiff must establish by “clear and convincing” evidence that an HLC officer, director, or managing agent committed an act of oppression, fraud, or malice. The law requires that “managing agents” include only those corporate employees who exercise substantial independent authority and judgment in their corporate decision making so that their decisions ultimately determine corporate policy.  Plaintiff must prove both an evil motive or intent and outrageous conduct on the part of the wrongdoers. A finding of even unlawful discrimination or retaliation in personnel decisions would not itself justify punitive damages as such conduct is not the equivalent of malice or oppression. Plaintiff claims that Lupe Munoz retaliated against him. As the Human Resources Manager for HLC, Ms. Munoz is neither a corporate officer nor director of HLC, as defined by section 3294; Ms. Munoz does not qualify as a managing agent of HLC because she lacks the requisite authority and judgment to determine corporate policies for HLC.  Plaintiff has no contradicting evidence to state otherwise, therefore, Plaintiff cannot establish that any action taken against him was committed by an officer, director, or managing agent of HLC. Plaintiff cannot provide any evidence, let alone any clear and convincing evidence, that HLC acted with malice, oppression, or fraud against him. Plaintiff voluntarily abandoned his job when he failed to report to work as scheduled on March 3, 2022. Plaintiff admits that he left his shift early on February 21, 2022, which resulted in his receiving the written warning and suspension on March 1, 2022. Because Plaintiff has no proof, let alone any clear and convincing evidence, that a corporate officer, director, or managing agent committed an act of malice, oppression, or fraud against him, Plaintiff cannot establish a claim for punitive damages.

Plaintiff’s Opposition

Filed 4/10/24; summarized:

Memorandum; 9 pages; HLC’s kitchen-sink motion for summary judgment should have never been filed; misconstrues the facts of the case, attempts to claim unproven allegations, as pretext to wrongfully terminate Plaintiff for exercising his rights; HLC has failed to establish entitlement to summary judgment or adjudication of any issue, mandating denial of its motion in its entirety. Even if HLC met its burden, Plaintiff raises numerous triable issues of fact which defeat its motion on every cause of action. 

There were allegations that on January 12, 2022, Plaintiff threw a piece of wood toward or at the direction of Jose Diaz, a co-worker. This allegation is false, and this allegation was never ever fully investigated.  Plaintiff was told there was a video of the alleged altercation and he asked to see the video as it would prove that he was not the aggressor but rather it was Mr. Jose. Diaz who aggressively grabbed the piece of wood Plaintiff was holding and Plaintiff dropped the piece of wood and told Mr. Diaz to back up. Plaintiff was told there would be no write ups by Richard Pinson, production manager.

Plaintiff is further accused of hostility towards HCL administrative staff, Ms. Yvette, for requesting that sick leave be applied to a January 13, 2022, sick leave request to take care of his ill wife which Plaintiff told his supervisor Jorge about. Plaintiff denied using any profanity towards Ms. Yvette and was rather having a conversation about the erroneous application of vacation time to his sick leave rather than use of sick pay.

On February 21, 2022, Plaintiff’s wife fell ill, and Plaintiff called Jorge Cuevas and left him a message informing him that he had a medical emergency. Plaintiff denies any incident on this date where he got upset with Mr. Cuevas and made statement that Mr. Cuevas could not tell him what to do or something of that nature. On February 22, 2022, through February 25, 2022, Plaintiff continued leaving Mr. Cuevas messages about Plaintiff’s inability to report to work for the remainder of the week due to caring for a family member with Covid-19. On February 28, 2022, Plaintiff spoke with Lynne Edie, office manager, about not getting Covid-19 related pay due to his time off due to Covid-19 related illness from the 22nd through the 25th. She said the company did not offer Covid-19 pay, in which Plaintiff then told Yvette he would file a complaint with the labor board as he believed this was a violation of the Covid-19 regulations at the time.

The following day, on March 1, 2022, Plaintiff is asked to attend a meeting with HCL staff where he receives a write up and a suspension allegedly due to his interaction with Mr. Diaz and Mr. Cuevas, his request for sick leave/Covid pay with Yvette, alleged job abandonment and alleged failure to report to work without proper notice. Plaintiff denies the above alleged conduct and behavior, as testified by him at his deposition.  

HLC retaliated against Plaintiff by terminating him for exercising Plaintiff’s right to request Covid-19 paid leave and for complaining to human resources about Employers’ violation of Covid-19 paid leave. Plaintiff’s termination was substantially motivated by Plaintiff exercising and requesting his rights for Covid-19 pay and complaining to human resources about not receiving Covid-19 paid leave and threatening to report Defendant to the labor board and requesting/taking sick leave.

HLC retaliated by writing him up and suspending him for behavior and conduct he vehemently denies. Plaintiff experienced adverse action when he was written up, suspended, and what Plaintiff believes was his eventual termination. Each of these actions by HLC constitutes retaliation and adverse action. 

Supported by the Declaration of Michael Juarez-Munoz [attorney for Plaintiff]; HLC untimely served the motion for Summary Judgment and should not be considered by this Court. According to California Code of Civil Procedure 437c(a), Motions for Summary Judgment must be served seventy-five (75) days before the scheduled hearing date with the Court. An additional ten (10) days are required if the party is located outside of California, and an additional twenty (20) days are needed if the party is located outside the United States. In this case, HLC's deadline for filing the motion for summary judgment was set on February 7, 2024; HLC filed and served the Plaintiff with the motion's documents on February 8, 2024, which exceeded the deadline; HLC's motion for summary judgment should not be considered by the Court.

Supported by Plaintiff’s Separate Statement: 47 pages; summarized;

The following Numbered items are disputed or disputed in part.

##

2. Plaintiff disputes that he did not report to Defendants and/or their agents of his absence, and did in fact report to his supervisor Jorge Cuevas, on February 22, 2022, and every other day that week, up to February25, 2022, that he would not be coming in to work the rest of the week.

4. Plaintiff disputes the inference that upon his return, he informed human resources of the Covid related absence for the first time. 

7. Plaintiff disputed when HLC decided to provide Plaintiff with Covid-19 pay. He does not have knowledge of Defendant’s decision to provide 32 hours of Covid-19 pay “later that same day”, he does acknowledge that Covid-19 pay was provided in his final paycheck. 

8. Same as above. 

12. Plaintiff disputed that he violated HCL policies.

14. Plaintiff disputed that he in fact walked off the job, basically quitting. 

15. Plaintiff does not have knowledge of who, what, and when HCL’s policies are enforced and what would “normally lead” to certain actions by HCL. 

16. Plaintiff believes HCL wanted to terminate him and retaliated against him for requesting Covid -19 pay. 

17. Plaintiff disputed that he did not report to work at all, he showed up to work to talk to Rudy Lakkart, manager, regarding his written notice of suspension. Rudy informed him he could take the day off. 

18. Same as above.

19. Plaintiff disputed that he did not report to work at all, he showed up to work to talk to Rudy Lakkart, manager, regarding his written notice of suspension. Rudy informed him he could take the day off. This was not a voluntary resignation or job abandonment. 

20. Plaintiff disputes that he abandoned his job. 

22. Plaintiff disputes that he in fact walked off the job without telling Mr. Cuevas. Plaintiff called and left Mr. Cuevas a message. 

23. Plaintiff disputes that he did not report to Defendants and/or their agents of his absence, and did in fact report to his supervisor Jorge Cuevas, on February 22, 2022, and every other day that week, up to February25, 2022, that he would not be coming in to work the rest of the week.  

24. Same as above.

25. Same as above.

27. Plaintiff disputed that he was hostile, insubordinate, and had persistent absences.

29. Plaintiff disputed that he in fact walked off the job, basically quitting. 

30. Same as above.

31. Plaintiff believes HCL wanted to terminate him and retaliated against him for requesting Covid-19 pay. 

32. Plaintiff disputed that he did not report to work at all, he showed up to work to talk to Rudy Lakkart, manager, regarding his written notice of suspension. Rudy informed him he could take the day off. 

33. Same as above.

34. Plaintiff disputed that he did not report to work at all, he showed up to work to talk to Rudy Lakkart, manager, regarding his written notice of suspension. Rudy informed him he could take the day off. This was not a voluntary resignation or job abandonment. 

35. Plaintiff disputed that he violated HCL policies.

37. Plaintiff disputed that he in fact walked off the job, basically quitting. 

38. Same as above.

39. Plaintiff disputed that he did not report to work at all, he showed up to work to talk to Rudy Lakkart, manager, regarding his written notice of suspension. Rudy informed him he could take the day off. 

40. Same as above.

41. Plaintiff disputed that he did not report to work at all, he showed up to work to talk to Rudy Lakkart, manager, regarding his written notice of suspension. Rudy informed him he could take the day off. This was not a voluntary resignation or job abandonment. 

43. Plaintiff disputes that he did not report to Defendants and/or their agents of his absence, and did in fact report to his supervisor Jorge Cuevas, on February 22, 2022, and every other day that week, up to February25, 2022, that he would not be coming in to work the rest of the week.  

45. Plaintiff disputes the inference that upon his return, he informed human resources of the Covid related absence for the first time.

48. Plaintiff disputed when HLC decided to provide Plaintiff with Covid-19 pay. He does not have knowledge of Defendant’s decision to provide 32 hours of Covid-19 pay “later that same day”, he does acknowledge that Covid-19 pay was provided in his final paycheck. 

49. Same as above.

55. Plaintiff disputed that he in fact walked off the job, basically quitting. 

56. Plaintiff does not have knowledge of who, what, and when HCL’s policies are enforced and what would “normally lead” to certain actions by HCL. 

57. Plaintiff believes HCL wanted to terminate him and retaliated against him for requesting Covid-19 pay. 

58. Plaintiff disputed that he did not report to work at all, he showed up to work to talk to Rudy Lakkart, manager, regarding his written notice of suspension. Rudy informed him he could take the day off. 

59. Same as above.

60. Plaintiff disputed that he did not report to work at all, he showed up to work to talk to Rudy Lakkart, manager, regarding his written notice of suspension. Rudy informed him he could take the day off. This was not a voluntary resignation or job abandonment. 

61. Plaintiff disputes that he abandoned his job. 

63. Plaintiff disputes that he in fact walked off the job without telling Mr. Cuevas. Plaintiff called and left Mr. Cuevas a message. 

64. Plaintiff disputes that he did not report to Defendants and/or their agents of his absence, and did in fact report to his supervisor Jorge Cuevas, on February 22, 2022, and every other day that week, up to February25, 2022, that he would not be coming in to work the rest of the week.  

65. Same as above.

66. Plaintiff lacks knowledge of HCL’s decisions and when those decisions were made.

68. Plaintiff disputed that he was hostile, insubordinate, and had persistent absences.

70. Plaintiff disputed that he in fact walked off the job, basically quitting. 

71. Plaintiff does not have knowledge of who, what, and when HCL’s policies are enforced and what would have “led to immediate termination” by HCL. 

72. Plaintiff believes HCL wanted to terminate him and retaliated against him for requesting Covid-19 pay. 

73. Plaintiff disputed that he did not report to work at all, he showed up to work to talk to Rudy Lakkart, manager, regarding his written notice of suspension. Rudy informed him he could take the day off. 

74. Same as above.

75. Plaintiff disputed that he did not report to work at all, he showed up to work to talk to Rudy Lakkart, manager, regarding his written notice of suspension. Rudy informed him he could take the day off. This was not a voluntary resignation or job abandonment. 

76. Plaintiff disputed that he was hostile, insubordinate, and had persistent absences.

78. Plaintiff disputed that he in fact walked off the job, basically quitting. 

79. Plaintiff does not have knowledge of who, what, and when HCL’s policies are enforced and what would have “led to immediate termination” by HCL. 

80. Plaintiff disputed that he did not report to work at all, he showed up to work to talk to Rudy Lakkart, manager, regarding his written notice of suspension. Rudy informed him he could take the day off. 

81. Same as above.

82. Plaintiff disputed that he did not report to work at all, he showed up to work to talk to Rudy Lakkart, manager, regarding his written notice of suspension. Rudy informed him he could take the day off. This was not a voluntary resignation or job abandonment. 

83. Plaintiff disputed that he was hostile, insubordinate, and had persistent absences.

85. Plaintiff disputed that he in fact walked off the job, basically quitting. 

86. Plaintiff does not have knowledge of who, what, and when HCL’s policies are enforced and what would have “led to immediate termination” by HCL. 

87. Plaintiff believes HCL wanted to terminate him and retaliated against him for requesting Covid-19 pay. 

88. Plaintiff disputed that he did not report to work at all, he showed up to work to talk to Rudy Lakkart, manager, regarding his written notice of suspension. Rudy informed him he could take the day off. 

89. Same as above.

90. Plaintiff disputed that he did not report to work at all, he showed up to work to talk to Rudy Lakkart, manager, regarding his written notice of suspension. Rudy informed him he could take the day off. This was not a voluntary resignation or job abandonment.

91. Plaintiff disputes that he abandoned his job.

96. Plaintiff disputes that he in fact walked off the job without telling Mr. Cuevas. Plaintiff called and left Mr. Cuevas a message. 

97. Plaintiff disputes that he did not report to Defendants and/or their agents of his absence, and did in fact report to his supervisor Jorge Cuevas, on February 22, 2022, and every other day that week, up to February25, 2022, that he would not be coming in to work the rest of the week.  

98. Same as above.

100. Plaintiff disputes the inference that upon his return, he informed human resources of the Covid related absence for the first time.

103. Plaintiff disputed when HLC decided to provide Plaintiff with Covid-19 pay. He does not have knowledge of Defendant’s decision to provide 32 hours of Covid-19 pay “later that same day”, he does acknowledge that Covid-19 pay was provided in his final paycheck. 

104. Same as above.

105. Plaintiff disputes that he abandoned his job.

108. Plaintiff disputes that he in fact walked off the job without telling Mr. Cuevas. Plaintiff called and left Mr. Cuevas a message. 

109. Plaintiff disputes that leaving his shift early resulted in the written warning and suspension. Plaintiff contends that asking for Covid-19 pay, time off for Covid-19 related illnesses, threatening to call the labor board for Covid-19 related pay violations, resulted in Plaintiff’s warning and suspension.

110. Plaintiff disputes that he abandoned his job. 

112. Plaintiff lacks knowledge of Ms. Munoz’s authority at HCL.

113. Plaintiff lacks knowledge of Ms. Munoz’s authority at HCL, and thus cannot admit that she does not qualify as a managing agent.  

HLC’s Reply

Filed 4/19/24:

Supported by Points and Authorities; 11 pages; summarized;  HLC is entitled to summary judgment of all claims as there is no genuine dispute that (1) Plaintiff failed to come to work for 4 days, (2) Plaintiff did not request Covid-19 supplemental paid sick leave until he returned to work on February 28, 2022, (3) HLC paid Plaintiff his Covid-19 supplemental paid sick leave for the 4 days he missed work, and (4) Plaintiff failed to return to work for his scheduled shift after his 2-day suspension, resulting in the termination of his employment.

Plaintiff failed to provide the Court with any admissible evidence that disputes the facts established by HLC; Plaintiff largely admits that he lacks information to dispute HCL’s facts.  Plaintiff’s efforts to distract the Court from HLC’s undisputed facts by introducing irrelevant, inadmissible evidence fails as a matter of law and should be ignored.  The undisputed facts demonstrate that Plaintiff cannot establish all of the essential elements of his causes of action and HLC’s motion should be granted.

Supported by Objections to Plaintiff’s Evidence; 4 pages, i.e.

Objections to the Declaration of Joseph A. Gaitan

#1. “She said . . .”

Ruling: Overruled

#2. “Defendant gave me . . .”

Ruling: Overruled

#3. “I believe . . .”

Ruling: Overruled

Supported by the Declaration of Robert J Wilger; 8 pages; summarized; his office timely served HLC’s MSJ and supporting papers via electronic mail; simultaneously, his office filed HLC’s MSJ with this Court; due to an administrative error, this Court rejected HLC’s filing of its MSJ and supporting documents; on February 8, 2024, his office re-filed the same moving papers with this Court; to avoid confusion, on February 8, 2024, defense counsel through a third party vendor personally served Plaintiff’s counsel its re-filed MSJ and supporting documents; then provided a Courtesy copy of the re-filed documents via e-mail.  According to his review of the California Civil Code of Procedure the last day to serve HLC’s MSJ via personal service was February 9, 2024; because Defendant served its MSJ by electronic means by the deadline on February 7, 2024, and again by personal service on February 8, 2024, HLC timely served its MSJ on Plaintiff.   

Analysis

The Court has read and considered the 145 pages of evidence and argument submitted. The Court recognizes its obligation that upon the denial of a motion for summary judgment on the ground that there is a triable issue as to one or more material facts, the Court shall, by written or oral order, specify one or more material facts raised by the motion that the Court has determined there exists a triable controversy. This determination shall specifically refer to the evidence proffered in support of and in opposition to the motion that indicates that a triable controversy exists. CCP § 437c

The Court has learned over the years that the best place to begin in analyzing a MSJ is to study the Separate Statements. It is the only “original” work done by counsel; even though there is a certain rhythmic repetition in the claims made and the disputed contentions.

In this case, as seen above, the Court has invested very significant time in reading and reviewing the Separate Statements. When finished, this Court is comfortable with its decision in this important case that is a matter of consequence.

Summary judgment is appropriate where there is no triable issue as to any material fact and the moving party is entitled to a judgment as a matter of law. CCP § 437c(c). “The party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.” Aguilar v. Atlantic Richfield Co., 25 Cal.4th 826, 850 (2001). “A Defendant 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. (§ 437c, subd. (p)(2).)” Id.        

“All that the Defendant need do is to ‘show that one or more elements of the cause of action . . . cannot be established’ by the Plaintiff. (Code Civ. Proc., § 437c, subd. (o)(2).) In other words, all that the Defendant need do is to show that the Plaintiff cannot establish at least one element of the cause of action--for example, that the Plaintiff cannot prove element X. Although he remains free to do so, the Defendant need not himself conclusively negate any such element--for example, himself prove not X.” Id. at 853-854.

In this case HLC did not carry its 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. On the other hand, Plaintiff has met its burden of production to make a prima facie showing of the existence of a triable issue of material fact.

On balance the Court is unable to say no reasonable juror could find facts necessary for a Plaintiff’s verdict and there are not equally conflicting inferences to be drawn from the evidence. Eddins v. Redstone, 134 Cal.App.4th 290, 328 (2005). “Summary judgment may not be granted where contradictory inferences may be drawn from the supporting declarations or affidavits.” Miller v. Bechtel Corp., 33 Cal.3d 868, 881 (1983); CCP § 473c(c).

As to the Count for Retaliation by HLC in Violation of Labor Code Sec. 98.6 and 1102.5, Plaintiff engaged in protected activity when requesting and taking sick/Covid leave, requesting that he get paid sick/Covid leave when Defendants initially failed to do so, and later denied they provided. Plaintiff further engaged in protected activity when he claimed he would make a complaint to the labor board, a government agency, for workplace violations which is protected activity under Labor Code Sec. 98.6, which includes oral complaints that there are owed unpaid wages.

Plaintiff engaged in protected activities in disclosing information to another employee who has authority to investigate or correct a violation or noncompliance with the law or claim to make a complaint with a regulation department such as the labor board of sick/Covid-19 pay leave violations. 

Plaintiff has presented evidence of adverse employment actions to which he was subjected, including false or baseless write ups, meetings, failure to investigate claims made against him, suspension, and eventual termination. 

Under Labor Code Sec. 1102.5, Plaintiff engaged in protected activities in disclosing information to another employee who has authority to investigate or correct a violation or noncompliance with the law or claim to make a complaint with a regulation department such as the labor board of sick/Covid-19 pay leave violations. 

HLC contends that there is no causal inference between Plaintiff’s, request for medical/sick/Covid leave and the disciplinary process because it alleges that the disciplinary process would have occurred despite Plaintiff’s request for leave and claims of unpaid wages; but the Court finds the contention is not true because Plaintiff raised the requisite triable issue of fact, mandating denial of HLC’s motion on this ground for all causes of actions.  

HLC is not entitled to Summary Adjudication of Plaintiff’s Count for Retaliation. The elements of a prima facie case of retaliation are: (1) Plaintiff engaged in a protected activity, (2) Plaintiff was subjected to an adverse employment action, and (3) a causal link existed between the protected activity and the employer's action. HLC argues that Plaintiff did not suffer an adverse employment action and that there was a legitimate reason for Defendants action. But Plaintiff has submitted evidence that he engaged in a protective activity of requesting and taking sick/Covid leave, and thereafter complaining about not being paid sick/Covid leave and claiming to make a complaint with the labor board.  

HLC used prior incidents, which Plaintiff contests, as a pretext to retaliate against him; Plaintiff has testified to the contrary. At a minimum, Plaintiff’s evidence raises a triable issue of fact on each of these issues.

HLC is not entitled to summary adjudication of Plaintiff’s Count for Retaliation in Violation of Labor Code Section 1102.5. That section provides that an employer, or any person acting on behalf of the employer, shall not retaliate against an employee for disclosing information to a government or law enforcement agency, to a person with authority over the employee or another employee who has the authority to investigate, discover, or correct the violation or noncompliance, if the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation, regardless of whether disclosing the information is part of the employee’s job duties.

Under Labor Code section 1102.5 and 1102.6 the Plaintiff must show, by a preponderance of the evidence, that retaliation was a contributing factor to the adverse employment action, and then the burden shifts to the employer to demonstrate by clear and convincing evidence that the adverse employment action would have occurred for legitimate, independent reasons even if the employee had not engaged in the whistleblowing conduct. Section 1102.6 requires whistleblower Plaintiffs to show that retaliation was a contributing factor in their termination, demotion, or other adverse action.  This means Plaintiffs may satisfy their burden of proving unlawful retaliation even when other, legitimate factors also contributed to the adverse action.  Under section 1102.6, a Plaintiff does not need to show that the employer’s nonretaliatory reason was pretextual.  Even if the employer had a genuine, nonretaliatory reason for its adverse action, the Plaintiff still carries the burden assigned by statute if it is shown that the employer also had at least one retaliatory reason that was a contributing factor in the action. 

In this case, the evidence is that Plaintiff’s complaints and request for sick/Covid leave pay was the “contributing factor” to his adverse employment action. This is even more apparent when reminded that, at summary judgment, a Court must view the facts and draw all reasonable inferences in the light most favorable to the nonmoving party. Scott v. Harris, (2007) 550 U.S. 372, 378

Defendant is not entitled to Summary Adjudication of Plaintiff’s Count for Wrongful Termination in Violation of Public Policy Claim because Plaintiff established a prima facie case of retaliation and has raised multiple triable issues of fact precluding summary adjudication of any of those issues.  

On the other hand - as for the Punitive Damages claim - Plaintiff presents no evidence that Ms. Munoz is an officer, director, or managing agent of HLC, much less that she “acted with oppression, fraud, or malice” as required for punitive damages.  Plaintiff wrongfully argues that HLC “submits zero evidence in support of this issue” asserting that HLC “failed to submit an affidavit or evidence affirmatively establishing that Plaintiffs do not have, and cannot reasonably be expected to get, the necessary evidence supporting this claim for punitive damages.” 

Plaintiff’s lack of personal knowledge and unawareness does not prove that a claim has no merit nor that one or more elements of a claim cannot be established. 

Plaintiff had ample opportunity to seek evidence regarding Ms. Munoz’s day to day responsibilities and whether she “exercised substantial discretionary authority over decisions that ultimately determine corporate policy” as required of a managing agent.

HLC proffered admissible evidence on this topic which Plaintiff failed to object to. Absent a single citation to any relevant evidence that would undermine Ms. Munoz’s attested declaration, there is no material dispute and Plaintiff is precluded from seeking punitive damages as a matter of law.

Separately and distinctive from the point raised above upon which the Court relies to find there should be no punitive damage claim going forward, this Court has seen punitive damage claims raised hundreds of times and tried dozens to a jury. Their case has no whisper of the kind of evidence that would support such a claim. The issue would, of course, be bifurcated and Plaintiff would need to convince 9 jurors that there was clear and convincing evidence of despicable conduct. There is nothing that the Court finds in the record that supports punitive damages that should survive this SJ Motion.

[1] The Court apologizes for any grammatical and typographical errors in this decision.