Defendants? motion for summary adjudication and summary judgment of the 9thcause of action (Negligent Supervision) in the 17th issue is granted, based on the cause of action being within the exclusive jurisdiction of workers? compensation.
Defendants? motion for summary judgment or alternatively summary adjudication of the 1st through 16th, and 18th through 23 Issues as to the 1st through 8th and 10th through 12th causes of action is denied.
Inasmuch as summary judgment is a drastic procedure and should be used with caution, the moving party?s papers are strictly construed, while the opposing party?s papers are liberally construed. (Committee to Save Beverly Highland Homes Ass?n v. Beverly Highland (2001) 92 Cal.App.4th 1247, 1260.)? A court may not make credibility determinations, or weigh the evidence, on a motion for summary judgment, and all evidentiary conflicts are to be resolved against the moving party. (McCabe v. American Honda Motor Corp. (2002) 100 Cal.App.4th 1111, 1119.? Finally, if there is any doubt about granting a motion for summary judgment, then the motion should be denied. (Miller v. Bechtel Corp. (1983) 33 Cal.3d 868, 874.)
For discrimination, harassment and retaliation claims, proof of discriminatory intent often depends on inferences rather than direct evidence. Because it does, very little evidence of such intent is necessary to defeat summary judgment.? Summary judgment should not be granted unless the evidence cannot support any reasonable inference for plaintiff. (Nazir v. United Airlines Inc. (2009) 178 Cal. App. 4th 243, 283) Many employment cases present issues of intent, and motive, and hostile working environment, issues not determinable on paper. Such cases are rarely appropriate for disposition on summary judgment, however liberalized it be.” (Id. at p. 286.)
In employment and civil rights cases, disputes as to the employer’s motives or state of mind raise factual issues, precluding summary judgment. (Sischo-Nownejad v.Merced Community College Dist. (9th Cir. 1991) 934 F.2d 1104, 1111).
Material facts ## 3, 11, 17, 18, 21, 22, 23, 26, 28, 29, 31, 33, 34, 35, 36, 39, 40, 47, 50, 51, 53, 54, 55, 60, 63, 64, 97, 101, & 104 are in dispute to prevent adjudication of any of these issues.
Issues # 1-3: 3rd C/A ? Disability Discrimination?
Defendants, by failing to separate the issues and facts, to establish which facts apply to which issues, have failed to meet their initial burden of persuasion to prevail on summary judgment/adjudication on all 3 issues. (Aguilar v. Atlantic Richfield Co. (2001) 25 Ca1.4th 826, 850.
Taking the declaration evidence offered by defendants, the court may not grant the defendants motion for summary judgment based on inferences? … .if contradicted by other inferences or evidence, which raise a triable issue as to any material fact.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 856.) Defendants? declarations of their involved management offering their intent or state of mind, automatically raises a triable issue of fact as to the intent behind the adverse action of the termination. Also, accepting the management?s self-analysis of their intent and motive requires the court to make a credibility determination, which is also prohibited in a motion for summary adjudication or judgment.
Issue #4: 2nd C/A ? Failure to Accommodate
This issue cannot be adjudicated in defendants? favor because defendants rely on UMF #3, in UMF #41, which as shown above ?is a material fact in dispute, regarding whether plaintiff was injured in October 2011. Defendant asserts that plaintiff admitted in interrogatories she was not, plaintiff disputes this analysis of the interrogatory and her response with her declaration.? As a result, defendants have not met their initial burden of proof to establish they engaged in the interactive process, based on their claim that plaintiff was not injured.
Issues # 5 & 6: 1st and 2nd C/As ? Failure to Engage in Interactive Process & Failure to Accommodate
Defendants rely on and incorporate UMFs # 4-32 in UMF #42. As indicated above, UMFs #11, 17, 18, 21, 22, 23, 26, 28, 29, and 31 are material facts in dispute.
Issue #7: 6th C/A ? Hostile Work Environment
Plaintiff addressed the new UMFs raised in this Issue. Plaintiff disputes defendants? UMFs # 47, 50, 51, 53, 54 & 55.
Issues # 8, 9, & 10: 7th C/A ? Wrongful Termination FEHA
These Issues cannot be adjudicated in favor of defendants because they rely on the disputed facts #33, 34, 35, 36 & 40 in their UMF #58.
Issues #11, 12 & 13: 5th C/A ? Retaliation in Violation of Labor Code ? 1102.5
Again, these issues rely on the same disputed facts as the preceding Issues; #33, 34, 35, 36 & 40.
Issues #14 & 15: 4th C/A ? Wrongful Termination in Violation of Public Policy
These Issues are based on the same disputed facts above incorporated into the UMF #66 & 67.? These include UMFs # 3, 11, 17, 18, 21, 22, 23, 26, 28, 29, 31, 33, 34, 35, 36, 39, 40, 47, 50, 51, 53, 54, 55, 60, 63 & 64.
Issue #16: 8th C/A ? Failure to Prevent Discrimination, Harassment and Hostile Work Environment
This Issue relies on the same UMFs relied on in Issues #14 & 15 above.
Issue #18: 10th C/A – IIED
This issue cannot be adjudicated because it relies on the same disputed facts set forth in Issues #14 & 15 above.
Issue #19: 11th C/A ? Breach of Contract – Oral
Defendant moves to adjudicate the cause of action on the issue that plaintiff did not enter into a written contract and admits as such. Plaintiff filed an Errata to the complaint on 7/5/16 striking the word written.
Issues #20 & 21: 11th C/A ? Breach of Contract – Oral
Defendants assert that plaintiff cannot establish the existence of an oral contract. This issue cannot be adjudicated because plaintiff disputes UMF #97 which states that plaintiff was not denied dental care from Ratner & Wilson. Plaintiff asserts that defendants terminated her in part to avoided providing her with dental care to alleviate the pain she was having with her tooth. (UMF #97.)
Issue #22: 12th C/A ? Failure to Provide Meal Breaks
Defendants assert that plaintiff was never reprimanded or discouraged from taking a meal period. (UMF #101.) Plaintiff disputed this fact stating that Ratner & Wilson?s practices with respect to breaks did not conform to its policy.
Issue #23: Punitive Damages
UMF #105 incorporates UMFs #1-100. Many of these facts are disputed as set forth above.
Plaintiff to give notice.