Holly Romine vs American Indian Health & Services Corporation

Case Number

24CV02599

Case Type

Hearing Date / Time

Mon, 03/09/2026 - 10:00

Nature of Proceedings

Motion: Summary Adjudication

Tentative Ruling

Holly Romine v. American Indian Health & Services Corporation

Case No. 24CV02599

           

Hearing Date: March 9, 2026                                     

HEARING:              Motion for Summary Adjudication of Issues

                                                           

ATTORNEYS:        For Plaintiff Holly Romine: David S. Secrest, Law Offices of David S. Secrest, P.C.

                             For Defendant American Indian Health & Services Corporation: Linh T. Hua, Kyla H. Buenaventura, Gordon Rees Scully Mansukhani, LLP

TENTATIVE RULING:

The motion of plaintiff for summary adjudication of issues is denied.

Background:

On May 10, 2024, plaintiff Holly Romine filed a complaint against defendant American Indian Health & Services Corporation, alleging nine causes of action: (1) discrimination in violation of the California Fair Employment and Housing Act or “FEHA” (disability); (2) harassment in violation of FEHA; (3) retaliation in violation of FEHA; (4) violation of rights under the California Family Rights Act or “CFRA”; (5) failure to accommodate disability; (6) failure to engage in good faith, interactive exchange re accommodation of disability; (7) failure to prevent discrimination, harassment, and retaliation in violation of FEHA; (8) wrongful, constructive termination in violation of public policy; and (9) intentional infliction of emotional distress. As alleged in the complaint:

Defendant is a non-profit corporation that provides “ ‘medical, dental, pediatric and behavioral health service… employing approximately ninety full-time staff members in its Medical, Dental, Pediatric and Behavioral Health programs in order to deliver healthcare through the Patient Centered Medical Home model established by the National Committee for Quality Assurance.’ [Citation.]” (Compl., ¶ 5.) Plaintiff is a licensed and trained registered nurse who was employed by defendant in various capacities from October of 2019 until plaintiff’s termination in November of 2023. (Compl., ¶¶ 2 & 4.)

Plaintiff is a person defined as disabled under applicable law. (Compl., ¶¶ 12.) Defendant knew plaintiff was, and regarded plaintiff as, a person defined as disabled under applicable law. (Compl., ¶¶ 14-15.) Without explanation or legitimate justification, defendant failed to provide, and refused to engage in a good faith interactive process regarding plaintiff’s request for, a reasonable accommodation for plaintiff’s disability which caused plaintiff to suffer losses in wages and benefits, emotional distress, and other harm. (Compl., ¶¶ 16-24.) Defendant’s conduct was intended to cause plaintiff to fail at her job and force plaintiff to resign. (Compl., ¶ 25.)

On September 19, defendant filed an answer to plaintiff’s complaint, generally denying its allegations and asserting thirty-three affirmative defenses.

Pursuant to the court’s minute order of September 2, 2025, a trial confirmation conference is presently scheduled in this case on April 20, 2026.

On December 18, 2025, plaintiff filed a motion for an order summarily adjudicating each of the affirmative defenses pleaded in defendant’s answer to the complaint. Defendant opposes the motion.

Analysis:

“A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. 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).) A motion for summary adjudication “shall proceed in all procedural respects as a motion for summary judgment.” (Code Civ. Proc., § 437c, subd. (f)(2).)

“When a plaintiff moves for summary adjudication on an affirmative defense, the court shall grant the motion ‘only if it completely disposes’ of the defense. [Citation.] The plaintiff bears the initial burden to show there is no triable issue of material fact as to the defense and that he or she is entitled to judgment on the defense as a matter of law. In so doing, the plaintiff must negate an essential element of the defense, or establish the defendant does not possess and cannot reasonably obtain evidence needed to support the defense.” (See’s Candy Shops, Inc. v. Superior Court (2012) 210 Cal.App.4th 889, 899–900, original italics.)

“The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar).) The party moving for summary judgment “bears the burden of persuasion that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law.” (Id. at p. 845.) “Initially, the moving party bears a burden of production to make a prima facie showing of the nonexistence of any genuine issue of material fact. If he carries his burden of production, he causes a shift: 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 genuine issue of material fact.” (Ibid.)

“If summary adjudication is sought, whether separately or as an alternative to the motion for summary judgment, the specific cause of action, affirmative defense, claims for damages, or issues of duty must be stated specifically in the notice of motion and be repeated, verbatim, in the separate statement of undisputed material facts.” (Cal. Rules of Court, rule 3.1350(b).) The notice of the present motion and plaintiff’s supporting separate statement state the affirmative defenses for which plaintiff seeks summary adjudication, and identify seven issues which the motion seeks to summarily adjudicate as to those defenses. The court will address those issues in the order in which they are presented in the supporting separate statement.

Plaintiff seeks summary adjudication of an “undue hardship” or “undue burden” defense on the following grounds: that undue hardship must be specifically pleaded under Code of Civil Procedure section 431.30 and Government Code section 12926, subdivision (u); that the operative answer does not plead undue hardship or undue burden as a separate or specific affirmative defense; that defendant has waived the defense by failing to plead it; that defendant has produced no admissible evidence establishing that plaintiff’s accommodation would have caused “significant difficulty or expense” within the meaning of Government Code section 12926, subdivision (u); that defendant’s Chief Executive Officer, Scott Black, admitted under oath that defendant had produced no documents showing that plaintiff’s telehealth work was prohibited or non-compensable, that defendant conducted a financial analysis of any alleged cost or burden, or that federal guidance barred “FQHC” providers from furnishing and billing for telehealth services after the end of the Covid-19 public health emergency; that the only documents produced by defendants are non-binding agency summaries that do not prohibit telehealth work, expressly disclaim regulatory force, and confirm that Congress and “CMS” extended core telehealth flexibilities through at least December 31, 2024; and that defendant has represented, without producing corroborating documents, that unspecified “other guidance” and “cost compliance issues” justified withdrawing plaintiff’s telehealth accommodation. (Notice at p. 2, l. 5-p. 3, l. 2.)

The supporting separate statement lists “Issue I” as: “Defendant May Not Assert ‘Undue Hardship’ or ‘Undue Burden’ as a Defense Because: (1) The Defense Was Not Pleaded; (2) No Evidence Supports It; and (3) The Accommodation Was Feasible[.]” (Sep. Stmt. at p. 2, ll. 1-3.)

The material facts claimed by plaintiff to be undisputed in regard to Issue I include that defendant’s answer “asserts 34 affirmative defenses but does not plead ‘undue hardship’ or ‘undue burden’ as a separate defense.” (Sep. Stmt., UMF no. 16 & evidence cited therein.) The response of defendant set forth in its opposing separate statement does not “unequivocally state whether that fact is ‘disputed’ or ‘undisputed.’” (Cal. Rules of Court, rule 3.1350(f)(2); Opp. Sep. Stmt., UMF no. 16.)

“On a motion for summary judgment or summary adjudication, the pleadings delimit the scope of the issues, and the function of affidavits, declarations, or other supporting evidence is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.” (State Compensation Ins. Fund v. Superior Court (2010) 184 Cal.App.4th 1124, 1132; FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 380–382 [noting that a defendant’s answer to a complaint supplements the measure of the materiality in a summary judgment proceeding, and that a moving party plaintiff must “show that there is no material factual dispute with respect to the defenses proffered by the defendant.”].)

Though plaintiff argues that “undue hardship” is an affirmative defense that must be specifically pleaded and proved by defendant (and the court, for present purposes, provides no opinion on that issue), plaintiff concedes that the defense is not pleaded in defendant’s answer to the complaint, which, as further discussed above, delimits the materiality of the factual claims to be considered in this proceeding. Considering that “the court cannot summarily adjudicate other issues or claims, even if a basis to do so appears from the papers[]” (Schmidlin v. City of Palo Alto (2007) 157 Cal.App.4th 728, 744), and for all reasons further discussed above, summary adjudication of Issue I is not appropriate under the circumstances present here.

The opening memorandum submitted in support of the motion also argues that the fifth affirmative defense (business judgment rule), the sixth affirmative defense (good faith), and the seventh affirmative defense (justifiable conduct), which are pleaded in defendant’s answer to the complaint, “do not satisfy the pleading requirement for the statutory undue hardship defense.” (Memorandum at p. 10, l. 25-p. 11, l. 2.) Those affirmative defenses are not identified in the notice of the motion, or repeated verbatim in the supporting separate statement, with respect to Issue I. For these additional reasons, as to Issue I, the motion is procedurally inappropriate. For these and all further reasons discussed above, the court will deny the motion as to that issue.

Issue II seeks summary adjudication of defenses that plaintiff asserts are “legally inapplicable” to intentional violations of FEHA. (Notice at p. 3; Sep. Stmt. at p. 5.) The notice of motion and supporting separate statement each state that, as to Issue II, those affirmative defenses are the fifth, sixth, seventh, fourteenth, seventeenth, twentieth, twenty-first, and twenty-second affirmative defenses pleaded in defendant’s answer to the complaint. (Ibid.)

Even if the court were to assume without deciding that the affirmative defenses identified in the supporting separate statement and above do not apply to any cause of action for an intentional FEHA violation alleged in the complaint (and the court presently provides no opinion on that issue), the complaint also alleges causes of action for violation of the CFRA; for wrongful, constructive termination in violation of public policy; and for the intentional infliction of emotional distress. Wholly absent from the motion is any reasoned argument showing why the affirmative defenses stated in the notice and supporting separate statement as to Issue II, do not apply to any causes of action which do not, whether on their face or otherwise, relate to any intentional violation of FEHA.

Furthermore, and notwithstanding whether the first cause of action for disability discrimination in violation of FEHA arises from a purportedly “intentionally discriminatory act against [plaintiff] because of ... her disability (disparate treatment discrimination)...” (Moore v. Regents of University of California (2016) 248 Cal.App.4th 216, 232), the second cause of action alleges a claim for harassment under FEHA. As to that claim, FEHA “creates a separate actionable tort enforceable upon the establishment of the usual tort elements of duty of care, breach of duty (a negligent act or omission), causation, and damages[]” (Dickson v. Burke Williams, Inc. (2015) 234 Cal.App.4th 1307, 1313, italics added). Furthermore, “FEHA establishes a negligence standard for determining whether an employer is liable for harassment by a nonsupervisory employee. [Citation.] Intent is not an element of negligence.” (Bailey v. San Francisco Dist. Attorney’s Office (2024) 16 Cal.5th 611, 636.)

Absent from the motion is any reasoned discussion showing why the second cause of action is not governed by a negligence standard. For these reasons, the motion fails to show, as to Issue II, why the fifth, sixth, seventh, fourteenth, seventeenth, twentieth, twenty-first, and twenty-second affirmative defenses do not apply to that cause of action.

For all reasons discussed above, the motion must completely dispose of the fifth, sixth, seventh, fourteenth, seventeenth, twentieth, twenty-first, and twenty-second affirmative defenses pleaded in defendant’s answer. Because the motion seeks to summarily adjudicate the issue of whether the fifth, sixth, seventh, fourteenth, seventeenth, twentieth, twenty-first, and twenty-second affirmative defenses apply to any cause of action for intentional violations of FEHA without addressing whether those causes of action also do not apply to the additional causes of action alleged in the complaint, plaintiff has failed to meet their burden to completely dispose of those affirmative defenses.

In addition, as the motion effectively requests that the court enter partial summary adjudication as to Issue II in a manner that, if granted, would leave the fifth, sixth, seventh, fourteenth, seventeenth, twentieth, twenty-first, and twenty-second affirmative defenses to be tried as to any causes of action which do not arise from an intentional violation of FEHA, “there [is] no statutory basis for such an order.” (Paramount Petroleum Corp. v. Superior Court (2014) 227 Cal.App.4th 226, 243; see also Code Civ. Proc., § 437c, subd. (f)(1) [“[a] motion for summary adjudication shall be granted only if it completely disposes of ... an affirmative defense....”]) For these and all reasons further discussed above, summary adjudication of Issue II would be improper. Therefore, the court will deny the motion for summary adjudication of Issue II.

Issue III is listed, or effectively listed, in the notice and supporting statement as defenses without evidentiary support. (Notice at p. 4; Sep. Stmt. at p. 6.) Those defenses are stated as the first, fourth, ninth, tenth, eleventh, thirteenth, fifteenth, sixteenth, twenty-fifth, twenty-sixth, twenty-seventh, and thirtieth affirmative defenses. (Notice at pp. 4-5; Sep. Stmt. at p. 6.) The motion argues that defendant has produced no admissible evidence supporting any of those affirmative defenses. (Notice at p. 5, ll. 7-9; Sep. Stmt. at p. 6.)

Even if the motion was sufficient to show that, as to any particular affirmative defense, defendant does not possess necessary evidence (and the court makes no findings in this regard), plaintiff must “present evidence, and not simply point out that the [defendant] does not possess, and cannot reasonably obtain, needed evidence.” (Aguilar, supra, 25 Cal.4th at p. 854, italics added.) Wholly absent from the motion is any reasoned factual or legal argument showing why defendant “cannot reasonably obtain, needed evidence...” to support the first, fourth, ninth, tenth, eleventh, thirteenth, fifteenth, sixteenth, twenty-fifth, twenty-sixth, twenty-seventh, and thirtieth affirmative defenses pleaded in defendant’s answer to the complaint. (Ibid.)

There also exist procedural deficiencies as to Issue III. For example, plaintiff’s supporting separate statement “must separately identify:

“(A) Each ... affirmative defense that is the subject of the motion; and

“(B) Each supporting material fact claimed to be without dispute with respect to the ... affirmative defense that is the subject of the motion.” (Cal. Rules of Court, rule 3.1350(d)(1)(A)-(B).)

Instead of “separately” identifying each affirmative defense and each supporting material fact claimed to be without dispute as to each defense, plaintiff has set forth various facts plaintiff claims are material and undisputed as to all of the affirmative defenses for which the motion seeks summary adjudication as to Issue III. These deficiencies or nonconformities justify a denial of the motion as to that issue on procedural grounds. (Collins v. Hertz Corp. (2006) 144 Cal.App.4th 64, 74.)

Furthermore, though Code of Civil Procedure section 437c requires the moving party to set forth “plainly and concisely all material facts that the moving party contends are undisputed[]” (Code Civ. Proc., § 437c, subd. (b)(1)), plaintiff has failed to do so here.

For example, the material facts set forth in the supporting separate statement as to Issue III, which plaintiff claims are without dispute, include: that plaintiff “has established prima facie elements of each cause of action through declarations and documentary evidence”; that plaintiff “engaged in the interactive process”; that defendant “failed to engage in the interactive process and withdrew a functioning accommodation[]”; that plaintiff “performed essential functions with accommodation for 20 months”; that defendant “took no remedial measures”; and that defendant “withdrew the accommodation” and forced plaintiff’s departure. (Sep. Stmt., UMF nos. 37, 43 & 45-47.)

The “obliquely stated ‘facts’” described above appear to be “material only to the extent they are controverted, and uncontroverted only to the extent they are immaterial.” (Reeves v. Safeway Stores, Inc. (2004) 121 Cal.App.4th 95, 105 (Reeves).) Moreover, the “facts” identified in the supporting separate statement and described above do not describe material events or circumstances and instead, present conclusions of fact or law regarding those events or circumstances. By formulating the operative material facts supporting Issue III in the form of conclusory and general assertions about the purported underlying events or conditions which plaintiff claims are without dispute, plaintiff “merely clouds the inquiry” and has failed to establish the underlying facts “without substantial controversy.” (Id. at p. 106.)

In addition, to the extent the supporting separate statement fails to set forth the material facts upon which plaintiff bases the motion, the motion fails to sufficiently inform defendant of the evidence it must dispute or to comply with due process. (United Community Church v. Garcin (1991) 231 Cal.App.3d 327, 337, superseded by statute on another ground as stated in City of Pasadena v. Superior Court (2014) 228 Cal.App.4th 1228, 1238, fn. 4.) The court further notes that “trial courts have the inherent power to strike proposed ‘undisputed facts’ that fail to comply with the statutory requirements and that are formulated so as to impede rather than aid an orderly determination whether the case presents triable material issues of fact. If such an order leaves the required separate statement insufficient to support the motion, the court is justified in denying the motion on that basis.” (Reeves, supra, 121 Cal.App.4th at p. 106.)

Plaintiff’s supporting separate statement also “ ‘effectively concedes the materiality of whatever facts are included. Thus, if a triable issue is raised as to any of the facts in [the] separate statement, the motion must be denied!’ [Citation.]” (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 252.) The present record also reflects or suggests the existence of triable issues of material fact with respect to the affirmative defenses that are the subject of the motion as to Issue III.

The material facts which plaintiff claims are without dispute as to Issue III include that there is no evidence of any inequitable conduct by plaintiff. (Sep. Stmt., UMF no. 41.) The evidence cited by plaintiff to establish that proffered “fact” consists of a supplemental response to plaintiff’s form interrogatory no. 216.1 that was served by defendant on November 25, 2024. (Ibid; see also Decl. of David S. Secrest, ¶ 9 & Ex. D.)

Though the supporting separate statement includes language suggesting that the material fact described above negates the eleventh affirmative defense, it is unclear to the court, based on the manner in which that statement combines several affirmative defenses within an issue, whether plaintiff also contends that this fact negates the other affirmative defenses which are the subject of plaintiff’s request for summary adjudication of Issue III. In addition, the term “inequitable conduct” is not defined or explained in the motion or plaintiff’s supporting statement. As further discussed above, “conclusions of law or fact are insufficient to satisfy the evidentiary requirements for a summary judgment statute....” (Perkins v. Howard (1991) 232 Cal.App.3d 708, 713.)

Though the motion does not define or explain the meaning of the term “inequitable conduct”, defendant presents evidence to show that in September of 2023, defendant received a medical note from plaintiff’s provider releasing plaintiff to full time work without restrictions on October 10, 2023; and that on October 6, 2023, plaintiff emailed her resignation. (Opp. Sep. Stmt. UMF no. 41 & evidence cited therein; Declaration of Scott Black, ¶¶ 11-12; Declaration of Kyla H. Buenaventura, Ex. 1 [plaintiff’s October 6, 2023, email]; 2 [“Return to Work/School Letter” from UCLA Health stating plaintiff may return to work on October 10, 2023] & Ex. 10 [deposition of Scott Black] at p. 90, ll. 6-8.) “[A] resignation free of employer coercion or misconduct—is not an adverse employment action.” (Featherstone v. Southern California Permanente Medical Group (2017) 10 Cal.App.5th 1150, 1161.) For these reasons, a trier of fact could reasonably infer from that evidence, that plaintiff voluntarily resigned, and that the resignation does not constitute an adverse employment action. Under these circumstances, the motion fails to show, with reasoned argument, why there exists no triable issue of fact, including in regard to any competing inferences, as to whether there is no evidence of any inequitable conduct by plaintiff.

In addition, though the supporting material facts claimed to be without dispute as to Issue III include that defendant “forced” plaintiff’s departure (see Sep. Stmt., UMF no. 47), the supporting separate statement includes no material facts to support that conclusory assertion.

As further discussed above, the supporting separate statement as to Issue III concedes the materiality of the purported fact that there was no inequitable conduct by plaintiff. For reasons discussed above, the present record gives rise to a competing inference reasonably deducible from the evidence presented by defendant. Therefore, plaintiff has failed to meet their burden to show that there is no triable issue as to any material fact. (Code Civ. Proc., § 437c, subd. (c).) For these and all further reasons discussed above, the court will deny the motion for summary adjudication of Issue III.

As to Issue IV, Issue V, Issue VI, and Issue VII, the supporting separate statement and motion suffer from the same procedural and substantive deficiencies further discussed above. By way of example only, the supporting separate statement fails to include material “facts” as that term is used in Code of Civil Procedure section 437c. (See, e.g., Sep. Stmt., UMF nos. 50 [stating that plaintiff did not waive statutory rights], 51 [asserting that plaintiff’s claims were timely filed]; 55 [“CEO Black and Dr. Javanbakht” acted with conscious disregard of plaintiff’s rights]; 56 [plaintiff has documented their damages]; 60 [plaintiff’s wrongful termination claim is “tethered to fundamental public policies in FEHA”]; 61 [defendant’s agents “acted within the course and scope of their employment”].) For the same reasons discussed above, conclusions of law or fact do not satisfy the evidentiary requirements applicable to the motion for summary adjudication of Issues IV through VII.  

Summary adjudication of an affirmative defense is properly granted only in circumstances where the moving party meets their burden to show that there exist no triable issue of material fact as to the defense, and the moving party is entitled to judgment on the defense as a matter of law. (Kendall-Jackson Winery, Ltd. v. Superior Court (1999) 76 Cal.App.4th 970, 977-978.) As the same reasoning and analysis apply as to the request for summary adjudication of Issues IV through VII, the court will, for all reasons further discussed above, deny the motion as to those issues.

With their reply, plaintiff submits objections to evidence presented by defendant in its opposition to the motion. “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.” (Code Civ. Proc., § 437c, subd. (q).) The court will overrule plaintiff’s objection nos. 15, 16, 17, and 18.

As to the remaining objections asserted by plaintiff, because the motion fails, for all reasons discussed herein to shift the burden to defendant to demonstrate the existence of a triable issue of fact, the remaining matters to which plaintiff asserts objections are not material to the disposition of that motion. (Aguilar, supra, 25 Cal.4th at p. 843.) For these reasons, the court need not rule on those objections.