| DEPARTMENT 68 LAW AND MOTION RULINGS
Case Number: 21STCV37772 Hearing Date: July 8, 2025 Dept: 68 Dept. 68 Date: 7-8-25 Case # 21STCV337772 Trial Date: 9-22-25 c/f 6-23-25 SUMMARY JUDGMENT/SUMMARY ADJUDICATION MOVING PARTY: Defendants, PerkinElmer, Inc., et al. RESPONDING PARTY: Plaintiff, Martin Avalos RELIEF REQUESTED Motion for Summary Judgment/Summary Adjudication · Violation of Lab. Code § 1102.5 · 2. Violation of Lab. Code §§ 6310 & 6311 · 3. Violation of Lab. Code § 98.6 · 4. Retaliation · 5. Discrimination Based on Race and National Origin · 6. Harassment · 7. Failure to Prevent Discrimination, Harassment, And Retaliation · 8. Defamation · 9. Failure to Pay For All Hours Worked · 10. Failure to Provide Accurate Wage Statements · 11. Failure to Pay Wages Upon Discharge · 12. Violation of Business & Professions Code §§ 17200 et seq. · 13. Wrongful Termination in Violation of Public Policy SUMMARY OF ACTION Plaintiff Martin Avalos commenced employment with PerkinElmer, Inc., in October 2020, as a Senior Specimen Processor assigned to a facility in Valencia, CA. Defendant Gerico Yip was also hired in 2020 as supervisor of Avalos. Plaintiff alleges a pattern and practice of disregarding regulatory standards. Upon complaining of said violations, Avalos alleges responsive accusations and other employment actions. Avalos also alleges Yip was motivated by racial bias on the basis of Yip’s ethnicity as Filipino. Plaintiff was ultimately terminated on an unspecified date, but sometime after January 2021. On October 12, 2021, Plaintiffs filed a complaint for 1. Violation of Lab. Code § 1102.5 2. Violation of Lab. Code §§ 6310 & 6311 3. Violation of Lab. Code § 98.6 4. Retaliation 5. Discrimination Based on Race and National Origin 6. Harassment 7. Failure to Prevent Discrimination, Harassment, And Retaliation 8. Defamation 9. Failure to Pay For All Hours Worked 10. Failure to Provide Accurate Wage Statements 11. Failure to Pay Wages Upon Discharge 12. Violation of Business & Professions Code §§ 17200 Et Seq. 13. Wrongful Termination in Violation of Public Policy. On July 5, 2022, the court granted the motion of Randstad Professionals US, LLC as to Yesenia Castillo to compel arbitration, and stayed the entire action pursuant to the motion of PerkinElmer, Inc. and Gerico Yip. On June 11, 2024, Plaintiff Yesenia Castillo dismissed all defendants. RULING: Denied in Part/Granted in Part. 37 Objections of Plaintiff: Overruled.61 PerkinElmer, Inc. and Gerico Yip Objections: Overruled. The approximately three to four month employment period led to the filing of the 13 cause of action complaint, and Defendants PerkinElmer, Inc. and Gerico Yip moving for summary judgment and summary adjudication on 28 separately noticed items listed as follows: Issue No. 1. Avalos’s claim that he was demoted in violation of California Labor Code § 1102.5 (First Cause of Action) fails as a matter of law because the undisputed facts establish Avalos’s reassignment to another section was not an adverse employment action. Issue No. 2. Avalos’s claim that his assignment was terminated in violation of California Labor Code § 1102.5 (First Cause of Action) fails as a matter of law because the undisputed facts establish Avalos’s assignment was terminated for legitimate, non-retaliatory business reasons. Issue No. 3. Avalos’s claim against Yip for retaliation in violation of California Labor Code § 1102.5 (First Cause of Action) fails as a matter of law because Yip was not Avalos’s employer and cannot be personally liable. Issue No. 4. Avalos’s claim that he was demoted in violation of California Labor Code §§ 6310 and 6311 (Second Cause of Action) fails as a matter of law because the undisputed facts establish Avalos’s reassignment to another section was not an adverse employment action. Issue No. 5. Avalos’s claim that his assignment was terminated in violation of California Labor Code §§ 6310 and 6311 (Second Cause of Action) fails as a matter of law because the undisputed facts establish Avalos’s assignment was terminated for legitimate, non-retaliatory business reasons. Issue No. 6. Avalos’s claim against Yip for retaliation in violation of California Labor Code §§ 6310 and 6311 (Second Cause of Action) fails as a matter of law because Yip was not Avalos’s employer and cannot be personally liable. Issue No. 7. Avalos’s claim that his assignment was terminated in violation of California Labor Code § 98.6 (Third Cause of Action) fails as a matter of law because the undisputed facts establish Avalos’s assignment was terminated for legitimate, non-retaliatory business reasons. Issue No. 8. Avalos’s claim against Yip for retaliation in violation of California Labor Code § 98.6 (Third Cause of Action) fails as a matter of law because Yip was not Avalos’s employer and cannot be personally liable. Issue No. 9. Avalos’s claim that he was demoted in violation of the California Fair Employment and Housing Act (“FEHA”) (Fourth Cause of Action) fails as a matter of law because the undisputed facts establish Avalos’s reassignment to another section was not an adverse employment action. Issue No. 10. Avalos’s claim that his assignment was terminated in violation of the FEHA (Fourth Cause of Action) fails as a matter of law because the undisputed facts establish Avalos’s assignment was terminated for legitimate, non-retaliatory business reasons. Issue No. 11._Avalos’s claim against Yip for retaliation in violation of the FEHA (Fourth Cause of Action) fails as a matter of law because Yip was not Avalos’s employer and cannot be personally liable. Issue No. 12. Avalos’s claim for race and/or national origin discrimination (Fifth Cause of Action) fails as a matter of law because the undisputed facts establish Avalos cannot prove a prima facie case of discrimination. Issue No. 13. Avalos’s claim for race and/or national origin discrimination (Fifth Cause of Action) fails as a matter of law because the undisputed facts establish Avalos’s assignment was terminated for legitimate, non-discriminatory business reasons. Issue No. 14. Avalos’s claim against Yip for race and/or national origin discrimination (Fifth Cause of Action) fails as a matter of law because Yip was not Avalos’s employer and cannot be personally liable. Issue No. 15. Avalos’s claim for harassment based on race and/or national origin (Sixth Cause of Action) fails as a matter of law because the undisputed facts establish that Avalos was not subjected to unwelcome severe or pervasive conduct based on race and/or national origin. Issue No. 16. Avalos’s claim for failure to prevent discrimination, harassment, and retaliation (Seventh Cause of Action) fails as a matter of law because Avalos cannot establish that he was harassed or discriminated or retaliated against. Issue No. 17. Avalos’s claim for defamation (Eighth Cause of Action) fails as a matter of law because the undisputed facts establish that the one oral statement Avalos attributes to Yip is not slander. Issue No. 18. Avalos’s claim for defamation (Eighth Cause of Action) fails as a matter of law because the undisputed facts establish that the one oral statement Avalos attributes to Yip is privileged. Issue No. 19. Avalos’s claim for failure to pay for all hours worked (Ninth Cause of Action) fails as a matter of law because the undisputed facts establish that Defendant JVT Advisors, LLC (“JVT”) was contractually responsible for paying all of Avalos’s wages and PerkinElmer is not vicariously liable for any alleged violation by JVT. Issue No. 20. Avalos’s claim for failure to pay for all hours worked (Ninth Cause of Action) fails as a matter of law because the undisputed facts establish that Avalos was paid all wages he was owed. Issue No. 21. Avalos’s claim for failure to provide accurate wage statements (Tenth Cause of Action) fails as a matter of law because the undisputed facts establish that JVT was contractually responsible for providing accurate wage statements to Avalos and PerkinElmer is not vicariously liable for any alleged violation by JVT. Issue No. 22. Avalos’s claim for failure to provide accurate wage statements (Tenth Cause of Action) fails as a matter of law because it is derivative of Avalos’s claim for failure to pay for all hours worked and fails for the same reason. Issue No. 23. Avalos’s claim for failure to pay wages upon discharge (Eleventh Cause ofAction) fails as a matter of law because the undisputed facts establish that JVT was contractually responsible for paying all of Avalos’s wages, including wages upon discharge, and PerkinElmer is not vicariously liable for any alleged violation by JVT. Issue No. 24. Avalos’s claim for failure to pay wages upon discharge (Eleventh Cause of Action) fails as a matter of law because it is derivative of Avalos’s claim for failure to pay for all hours worked and fails for the same reason. Issue No. 25. Avalos’s claim for violation of California Business & Professions Code § 17200 (“UCL”) (Twelfth Cause of Action) fails as a matter of law because it is derivative of Avalos’s underlying claims in his Complaint and fails for the same reason as do the underlying claims. Issue No. 26. Avalos’s claim for wrongful termination (Thirteenth Cause of Action) fails as a matter of law because Avalos cannot establish that he was discriminated or retaliated against. Issue No. 27. Avalos’s claim against Yip for wrongful termination (Thirteenth Cause of Action) fails as a matter of law because Yip was not Avalos’s employer and cannot be personally liable. Issue No. 28. Avalos’s claim for punitive damages fails because the undisputed facts establish no PerkinElmer office, director, or managing agent engaged in or approved the alleged conduct. Notwithstanding the extensive itemized issue list, in order to presumably conform to page limitation requirements, Defendants rely on key challenges to certain causes of action with incorporated reference. Defendants begin with a challenge to the first through fifth, and thirteenth causes of action, as well as a denial of any personal liability against individual Defendant Yip. On the sixth and eighth causes of action, Defendants also challenge the factual basis. The remaining Business and Professions Code and wage and hour causes of action and punitive claims derivatively fail as well under Defendants’ positions. Plaintiff in a two day late opposition offers extensive factual detail regarding alleged disparate treatment favoring Filipino employees for preferred scheduled assignments, and stricter break period enforcement against non-Filipino employees especially towards Latino employees. Plaintiff also reiterates the alleged false accusations regarding job performance, which constituted the pretense for demotion and subsequent termination. Plaintiff contends employer engaged in a “faux” investigation, which led to suspension and ultimate termination. Plaintiff follows up with the wage and hour claims. Additionally, on the legal merits, Plaintiff maintains Defendants failed to address the “whistleblower” claim in the retaliation cause of action; Plaintiff engaged in protected activities, employer engaged in adverse employment actions; a nexus exists between said whistleblower complaints and termination, triable issues of material fact exist as to discrimination; the termination for business reasons was an improper pretext, a hostile work environment existed; Plaintiff presents sufficient facts in support of the defamation and Business and Professions causes of action; and, punitive damages are warranted. Defendants in reply challenges the responsive separate statement as lacking in specific citation to contrary evidence; no triable issues of material fact exist on the discrimination claims; Plaintiff’s “cats paw” theory of liability fails; denial of any pretextual basis for termination; denial of any flawed investigation; and, denial of triable issues of material fact on the retaliation, harassment, Labor Code violation and punitive damages claims. The pleadings frame the issues for motions, “since it is those allegations to which the motion must respond. (Citation.)” (Scolinos v. Kolts (1995) 37 Cal. App. 4th 635, 640-641; FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 382-383; Jordan-Lyon Prods., LTD. v. Cineplex Odeon Corp. (1994) 29 Cal.App.4th 1459, 1472.) The purpose of a motion for summary judgment or summary adjudication “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. Atl. Richfield Co. (2001) 25 Cal.4th 826, 843.) “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) “On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” (Scalf v. D.B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant moving for summary judgment “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established.” (Code Civ. Proc., § 437c, subd. (p)(2).) “Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Ibid.) “When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inference that may be drawn form that evidence, in the light most favorable to the party opposing summary judgment.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467; see also Code Civ. Proc., § 437c, subd. (c).) “An issue of fact can only be created by a conflict in the evidence. It is not created by speculation, conjecture, imagination or guesswork.” (Lyons v. Security Pacific National Bank (1995) 40 Cal.App.4th 1001, 1041 (citation omitted).) The complaint appears driven by the discrimination and retaliation claims presented in the first seven and thirteenth causes of action, one defamation claim in the seventh cause of action, three wage and hour claims, and one wrongful business practices claim. The court begins with the retaliation claims. Issue statements one through ten, 12-16, and 26, specifically address the question of an adverse employment action, and/or evidence of discrimination or other forms of retaliatory conduct. “The specific elements of a prima facie case [for discrimination] may vary depending on the particular facts. (Citation) Generally, the plaintiff must provide evidence that (1) [s]he was a member of a protected class, (2) [s]he was qualified for the position he sought or was performing competently in the position he held, (3) [s]he suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some other circumstance suggests discriminatory motive.” (Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 355.) “To establish a prima facie case of retaliation, a plaintiff must show that she engaged in a protected activity, that she was thereafter subjected to adverse employment action by her employer, and there was a causal link between the two.” (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 614.) “[C]ourts considering the question of what constitutes an adverse employment action for purposes of a statutory retaliation claim have uniformly held an intermediate retaliatory employment action may suffice: ‘The legislative purpose underlying FEHA’s prohibition against retaliation is to prevent employers from deterring employees from asserting good faith discrimination complaints, and the use of intermediate retaliatory actions may certainly have this effect.’ (Citations.) However, courts also have been united in the view that an employer’s intermediate decision or action ‘constitutes actionable retaliation only if it had a substantial and material adverse effect on the terms and conditions of the plaintiff’s employment.’ (Citations.)” (Pinero v. Specialty Restaurants Corp. (2005) 130 Cal.App.4th 635, 641.) A pattern of conduct, rather than a single incident can support a finding of adverse employment. (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1056.) “[C]ourts considering the question of what constitutes an adverse employment action for purposes of a statutory retaliation claim have uniformly held an intermediate retaliatory employment action may suffice: ‘The legislative purpose underlying FEHA’s prohibition against retaliation is to prevent employers from deterring employees from asserting good faith discrimination complaints, and the use of intermediate retaliatory actions may certainly have this effect.’ (Citations.) However, courts also have been united in the view that an employer’s intermediate decision or action ‘constitutes actionable retaliation only if it had a substantial and material adverse effect on the terms and conditions of the plaintiff’s employment.’ (Citations.)” (Pinero v. Specialty Restaurants Corp. (2005) 130 Cal.App.4th 635, 641.) A pattern of conduct, rather than a single incident can support a finding of adverse employment. (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1056.) “[A] series of alleged discriminatory acts must be considered collectively rather than individually in determining whether the overall employment action is adverse [citations] and, in the end, the determination of whether there was an adverse employment action is made on a case-by-case basis, in light of the objective evidence.” (Holmes v. Petrovich Development Co., LLC (2011) 191 Cal.App.4th 1047, 1063.) Employer Defendants depend on the Deposition of Avalos, copies of various internal governing documents, and internal communications between Plaintiff and employee Nam Le, as proof of denial of any wrongful conduct. Plaintiff submitted both a responsive separate statement and additional separate statement in “support” of opposition. Confusion aside, Plaintiff cites extensively the declaration of Plaintiff, documents, and numerous deposition excerpts. The extensive evidence cited by Plaintiff establishes triable issues of material fact regarding both adverse employment action, and a potential discriminatory and/or retaliatory reasons for said discipline. The existence of anti-discrimination/retaliation policies, acknowledgment by Avaols, and actions of Avalos signing the presented documents at the time of the disciplinary actions in no way negates potential animus behind the decision(s), thereby rendering any later presented claims invalid. [Defendants’ Compendium of Evidence, Declaration of Amish Shah: Depositions of Martin, Avalos, Gregory/Gericho Yip, Nichole Murphy, Ex. E-F, H-O, S.] Denial of wrongful conduct, while noted, will not definitively establish the lack of valid claims barring a lack of counter evidence. The motion is therefore DENIED as to issue statements one through ten, 12-16, and 26. [Avalos’ Compendium of Evidence, Declarations of Martin Avalos, Alejandra Patino, Jose Valdez: Avalos Depo., Exhibits 3-5, 10, 13-15, 17-18, 23-41 Emails, Deposition of Jordan Pauling; Deposition of Tonya Dockwell, Deposition of Kristen Norris, Deposition of Yesenia Castillo.] On issue statements and 11 and 27, the items address personal liability against Defendant Yip. Defendant relies on a two sentence paragraph denying personal liability based on an allegation that Yip was not an employer of Plaintiff. Plaintiff presents no specific argument to the tersely presented position other than general citation to evidence of the racially motivated animus directed towards Plaintiff and non-Filipino employees. The supervisor responsible for decisions on behalf of the employer are not liable for wrongful termination claims. (Reno v. Baird (1998) 18 Cal.4th 640, 663.) Plaintiff presents no legal or factually supported argument establishing Yip as the employer. The motion is GRANTED as to Yip, an individual, as to the identified fourth and thirteenth causes of action. While an argument can be made for additional causes of action, the motion as presented only identifies the two causes of action. Items 17-18 address the defamation causes of action. “‘The elements of a defamation claim are (1) a publication that is (2) false, (3) defamatory, (4) unprivileged, and (5) has a natural tendency to injure or causes special damage.’” (John Doe 2 v. Superior Court (2016) 1 Cal.App.5th 1300, 1312.) Plaintiff alleges communication of false and damaging claims regarding job performance. Defendants rely on the lack of any claim under the slander per se elements as the basis for the defamation claim. (Civil Code, § 46.) Defendants then follow up with the assumption that any and all communications were privileged, due to arising from work related conduct. (Civil Code, § 47.) Nothing in the operative complaint alleges a slander per se claim. The motion otherwise lacks address to the basic elements of the claim. The court also declines to consider the extensive privilege discussion in that said positions rely on the non-existent slander per se claim. The motion is DENIED as to issue statements 17-18. Triable issues of material fact exist as referenced in the prior issue statements. Items 19-24 address the wage and hour claims Defendants rely on an apparent concession to a “joint employer” relationship with a third party, but denial of any labor code violations. On this assumption, Defendants rely on the alleged lack of authority to impose liability. Plaintiff in opposition maintains Defendants were employers based on control of performance of job duties, right to discipline, etc. The court declines to consider the legally unsupported positions assuming a joint employer relationship, yet somehow negating the right to present a claim for wage and hour violations against a joint employer. Regardless, Plaintiff includes evidence regarding responsibility for employment and wage payment, plus exhibits of paystubs, etc. The motion is DENIED as to issue statements 19-24. The court therefore finds triable issues of material fact. [Declaration of Kristen Norris; Deposition of John Wooldridge; Defendants’ Compendium of Evidence, Ex. P-Q; Plaintiff’s Compendium, Ex. 38-42.] Issue 25 addresses the Business and Professions code claim Defendants rely on the incorporation of the prior positions and contention that the subject claim is entirely derivative of said prior causes of action. Plaintiff counters the complaint seeks injunctive and restitution. The court finds insufficient address of the actual claim for restitution within the complaint. Further, to the extent the court finds triable issues of material fact on all preceding causes of action, reliance on a “derivative” position also requires citation to the prior findings of triable issues of material fact by incorporation as to the instant cause of action. The motion is DENIED. Item 28 concludes with the challenge to punitive damages. Defendants deny that any managing agent committed such acts as to support punitive damages. Plaintiff specifically cites to Defendant Yip as the source of information. While not specifically articulated in the motion, the court acknowledges the deposition testimony of Yip denying any responsibility for employment or disciplinary decisions. The court however declines to speculate as to whether and how the employees responsible for the decision acted with malice or oppression in electing to terminate Plaintiff. The court again incorporates the prior cited evidence in support of triable issues of material fact. The motion is DENIED. The motion is therefore GRANTED as to Individual Defendant Yip on the fourth and thirteenth causes of action (issue statements 11 and 27), and DENIED in its entirety as to the remainder against PerkinElmer, Inc. and Yip. Trial remains set for September 22, 2025. Defendants to give notice. |
