Gregg vs. Swift Transportation Co. of AZ LLC

Motion to Enforce Subpoena Plaintiff, Steven Merino (“Plaintiff”), moves for an order enforcing the subpoena issued to Uber Technologies, Inc. (“Uber”) on September 9, 2025, issuing evidence and issue sanctions against Uber for failure to comply with the subpoena, and awarding monetary sanctions in the amount of $2,060 against Uber.

“A written notice and all moving papers supporting a motion to compel an answer to a deposition question or to compel production of a document or tangible thing from a nonparty deponent must be personally served on the nonparty deponent unless the nonparty deponent agrees to accept service by mail or electronic service at an address or electronic service address specified on the deposition record.” (California Rules of Court, rule 3.1346.)

Here, the proofs of service attached to the moving papers indicates that the moving papers were electronically served on Uber through counsel, Vanessa K. Herzog and Taylor A. Stewart of Wood Smith Henning & Berman LLP. The moving papers were not personally served on Uber and there is no evidence showing that Uber agreed to accept service by electronic service through said counsel.

In light of the above, and the lack of opposition, Plaintiff’s motion to enforce/compel its Deposition Subpoena for Production of Business Records is CONTINUED to August 30, 2026 at 1:30 p.m. in Department C34.

Plaintiff is ORDERED to serve the moving papers by personal service on Uber, or otherwise file and serve supplemental evidence showing that Uber agreed to accept service by electronic service through counsel listed in the proofs of service. Plaintiff to file said proof of service or supplemental evidence, as applicable, no later than nine (9) courts days before the continued hearing date.

The Court orders Plaintiff to give notice of all motions.

7. 30-2023-01366366 1. Motion for Summary Judgment and/or Adjudication

Gregg vs. Swift Defendants Swift Transportation Co. of Arizona, LLC and Doug Witt (“Defendants”) move for Transportation Co. of Summary Judgement and/or Adjudication. Plaintiff James Vincent Gregg II (“Plaintiff”) opposes AZ LLC the motion.

First, the moving papers establish that Defendant did not move for summary judgment as to the fourth cause of action for failure to indemnify/reimburse. The fourth cause of action is not addressed in the notice of motion or the separate statement. (Cal. Rule of Court, rule 3.1350, subd. (d).) Therefore, it has not been properly noticed or addressed and the Court will not make a determination on this cause of action.

Second, Plaintiff concedes that the second cause of action for failure to provide overtime compensation, third cause of action for failure to provide rest breaks, fifth cause of action for waiting time penalties, and sixth cause of action for failure to provide accurate itemized wage statements are preempted. As such, the motion for summary adjudication is GRANTED as to these causes of action.

A. First Cause of Action for Failure to Pay Wages Pursuant to Labor Code sections 201, 226.7, 510, 1194 and 2802

Defendant moves for summary adjudication as to Plaintiff’s first cause of action for failure to pay wages, which was brought pursuant to Labor Code sections 201, 226.7, 510, 1194, and 2082. (ROA, Complaint, ¶¶ 40-49.)

Plaintiff argues that this cause of action survives the motion for summary judgment or adjudication “[t]o the extent Plaintiff's First Cause of Action (failure to pay wages under Labor Code § 201) encompasses unpaid reimbursable expenses beyond overtime and rest break premiums, it similarly survives preemption.” (ROA 116, Opposition, p. 14:12-14.) Plaintiff concedes that the cause of action does not survive as to his claims for unpaid wages related to “California’s meal and rest break rules for drivers of property-carrying commercial motor vehicles subject to federal hours of service regulations.” (ROA 116, Opposition, p. 13:19-14:14.) Thus, Plaintiff concedes that, to the extent this cause of action is based on Labor Code section 226.7, 510, and 1194, this cause of action is without merit.

In the Complaint, Plaintiff alleges the following:

“Defendants refused and/or failed to promptly compensate Plaintiff all wages owed on the date of termination. Defendants did not provide Plaintiff with unpaid meal and rest period penalties, unpaid wages, unpaid overtime compensation and expenses for which Defendant failed to reimburse Plaintiff, among other things, to which Plaintiff was entitled upon termination, in violation of Labor Code sections 201, 226.7, 510, 1194 and 2802.”

Labor Code section 201 requires that “[i]f an employer discharges an employee, the wages earned and unpaid at the time of discharge are due and payable immediately.” (Lab. Code, § 201, subd. (a).)

Labor Code section 2082 states:

“(a) An employer shall indemnify his or her employee for all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties, or of his or her obedience to the directions of the employer, even though unlawful, unless the employee, at the time of obeying the directions, believed them to be unlawful.

(b) All awards made by a court or by the Division of Labor Standards Enforcement for reimbursement of necessary expenditures under this section shall carry interest at the same rate as judgments in civil actions. Interest shall accrue from the date on which the employee incurred the necessary expenditure or loss.

(c) For purposes of this section, the term “necessary expenditures or losses” shall include all reasonable costs, including, but not limited to, attorney’s fees incurred by the employee enforcing the rights granted by this section.

(d) In addition to recovery of penalties under this section in a court action or proceedings pursuant to Section 98, the commissioner may issue a citation against an employer or other person acting on behalf of the employer who violates reimbursement obligations for an amount determined to be due to an employee under this section. The procedures

for issuing, contesting, and enforcing judgments for citations or civil penalties issued by the commissioner shall be the same as those set forth in Section 1197.1. Amounts recovered pursuant to this section shall be paid to the affected employee.” (Labor Code, § 2802.)

The Court agrees with Plaintiff. Labor Code sections 201 and 2802 address wages beyond the meal and rest break rules that are preempted. Given the above, the motion for summary adjudication is DENIED as to the first cause of action for failure to pay wages as Plaintiff has claims pursuant to Labor Code sections 201 and 2802 that are not preempted.

B. Discrimination Claims

Plaintiff’s seventh cause of action is for disability/perceived disability discrimination and eighth cause of action is for race discrimination.

“For purposes of evaluating FEHA discrimination claims, California courts have adopted the burden-shifting framework enunciated by the United States Supreme Court in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668.” (Hodges v. Cedars-Sinai Medical Center (2023) 91 Cal.App.5th 894, 904.) “The framework was originally developed for use at trial.” (Ibid.)

“When applied at summary judgment, it works as follows: The ‘employer, as the moving party, has the initial burden to present admissible evidence showing either [1] that one or more elements of plaintiff’s prima facie case is lacking or [2] that the adverse employment action was based upon legitimate, nondiscriminatory factors.’” (Hodges v. Cedars-Sinai Medical Center (2023) 91 Cal.App.5th 894, 904 [internal quotation omitted]; Wills v. Superior Court (2011) 195 Cal.App.4th 143, 160, as modified on denial of reh'g (May 12, 2011).) “If the employer satisfies its initial burden, it will be entitled to summary [adjudication] unless the plaintiff produces admissible evidence which raises a triable issue of fact material to the defendant’s showing.” (Ibid.)

“[T]o avoid summary judgment [once the employer makes the foregoing showing], an employee claiming discrimination must offer substantial evidence that the employer’s stated nondiscriminatory reason for the adverse action was untrue or pretextual, or evidence the employer acted with a discriminatory animus, or a combination of the two, such that a reasonable trier of fact could conclude the employer engaged in intentional discrimination.” (Wills v. Superior Court (2011) 195 Cal.App.4th 143, 160, as modified on denial of reh'g (May 12, 2011).)

“Whether summary adjudication is appropriate will depend on a number of factors, including the strength of the plaintiff’s prima facie case, the probative value of the proof that the employer’s explanation is false, and any other evidence that supports the employer’s case.” (Hodges v. Cedars-Sinai Medical Center (2023) 91 Cal.App.5th 894, 904

The employee’s “subjective beliefs in an employment discrimination case do not create a genuine issue of fact; nor do uncorroborated and self-serving declarations.” (King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 433.) To the contrary, the employee’s evidence must prove, by non-speculative evidence, the existence of “an actual causal link between prohibited conduct and termination.” (Id. at 433-434.)

“The [employee] cannot simply show that the employer’s decision was wrong or mistaken, since the factual dispute at issue is whether discriminatory animus motivated the employer, not

whether the employer is wise, shrewd, prudent, or competent.” (Wills v. Superior Court (2011) 195 Cal.App.4th 143, 160, as modified on denial of reh'g (May 12, 2011).)

Notably, “[h]owever, many employment cases present issues of intent and motive ... [which] ‘are rarely appropriate for disposition on summary judgment, however liberalized [summary judgment standards may] be.’ ” (Hodges v. Cedars-Sinai Medical Center (2023) 91 Cal.App.5th 894, 904; Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 286 [“[M]any 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.”].)

Seventh Cause of Action for Disability/Perceived Disability Discrimination

Plaintiff’s seventh cause of action is for disability/perceived disability discrimination.

Pursuant to Government Code section 12940(a)(1), it is unlawful “to refuse to hire or employ the person or to refuse to select the person for a training program leading to employment, or to bar or to discharge the person from employment or from a training program leading to employment, or to discriminate against the person in compensation or in terms, conditions, or privileges of employment” because of physical or mental disability of any person. (Gov. Code, § 12940, subd. (a).)

Importantly, the “very definition of a “physical disability” embraces association with a physically disabled person.” (Castro-Ramirez v. Dependable Highway Express, Inc. (2016) 2 Cal.App.5th 1028, 1036.) “Adapting this framework to the associational discrimination context, the ‘disability’ from which the plaintiff suffers is his or her association with a disabled person.” (Id., 1037.)

Both physical and mental “forms of disability require that a plaintiff has or is perceived by an employer as having a condition that ‘limits a major life activity.’ ” (Hodges v. Cedars-Sinai Medical Center (2023) 91 Cal.App.5th 894, 906 [citing Gov. Code, § 12926, subds. (j), (m)].) “ ‘Limits’ means making achievement of a major life activity difficult.” (Ibid.) “Major life activities include ‘physical, mental, and social activities and working.’” (Ibid.)

“FEHA proscribes two types of disability discrimination: (1) discrimination arising from an employer's intentionally discriminatory act against an employee because of his or her disability (referred to as disparate treatment discrimination), and (2) discrimination resulting from an employer's facially neutral practice or policy that has a disproportionate effect on employees suffering from a disability (referred to as disparate impact discrimination)” (Featherstone v. Southern California Permanente Medical Group (2017) 10 Cal.App.5th 1150, 1160.)

The only form of disability discrimination at issue in this case is disparate treatment discrimination.

“To establish a prima facie case for disparate treatment discrimination, plaintiff must show (1) she suffers from a disability, (2) she is otherwise qualified to do her job, (3) she suffered an adverse employment action, and (4) the employer harbored discriminatory intent.” (Featherstone v. Southern California Permanente Medical Group (2017) 10 Cal.App.5th 1150, 1161; Price v. Victor Valley Union High School District (2022) 85 Cal.App.5th 231, 239, reh'g denied (Nov. 29, 2022) [“A disability discrimination cause of action requires plaintiff to establish that he “(1) suffered from a disability or was regarded as suffering from a disability, (2) could perform the

essential duties of a job with or without reasonable accommodations, and (3) was subjected to an adverse employment action because of the disability or perceived disability.’”].)

“Section 12940 specifically limits the reach of this proscription, however, “excluding from coverage those persons who are not qualified, even with reasonable accommodation, to perform essential job duties: ‘This part does not prohibit an employer from refusing to hire or discharging an employee with a physical or mental disability ... where the employee, because of his or her physical or mental disability, is unable to perform his or her essential duties even with reasonable accommodations, or cannot perform those duties in a manner that would not endanger his or her health or safety or the health or safety of others even with reasonable accommodations.’” (Cuiellette v. City of Los Angeles (2011) 194 Cal.App.4th 757, 766.)

“Section 12940 does not classify all distinctions employers make on the basis of physical disability as unlawful discrimination.” (Cuiellette v. City of Los Angeles (2011) 194 Cal.App.4th 757, 766.) “Instead, such distinctions are prohibited ‘only if the adverse employment action occurs because of a disability and the disability would not prevent the employee from performing the essential duties of the job, at least not with reasonable accommodation. Therefore, in order to establish that a defendant employer has discriminated on the basis of disability in violation of the FEHA, the plaintiff employee bears the burden of proving he or she was able to do the job, with or without reasonable accommodation.’ ” (Ibid.)

Here, Defendants argue they are entitled to summary judgment on Plaintiff’s claim for racial discrimination because (1) Plaintiff cannot show he had a disability or perceived disability, (2) Defendants did not have a discriminatory intent, and (3) Defendants employment decisions were for non-discriminatory reasons.

Notably, the facts in support of these three arguments are all presented under the same issue in the separate statement. Pursuant to Code of Civil Procedure sections 437c, the separate statement shall only set forth material facts and there must be no triable issue as to any material fact presented in the separate statement. (Code Civ. Proc., § 437c, subd. (b) and Cal. Rules of Court, rule 3.1320, subd.(d)(1).) Accordingly, if there is a triable issue as to any of the facts, all three arguments fail since they are presented under the same issue.

The Court finds that there is a triable issue of material fact as to whether Plaintiff experienced an adverse employment action. Defendants contend that Plaintiff quit but Plaintiff testified in his deposition that he did not quit. Based on how the separate statement is drafted, this alone is grounds to deny the motion as to the seventh cause of action for disability discrimination.

In addition, Defendants point to Plaintiff’s deposition testimony on page 133-134 in support of their contention that they are entitled to summary judgment on this cause of action. The Court finds the interpretation of Plaintiff’s testimony a triable issue of material fact for the jury, especially when considered with Plaintiff’s other testimony such as that his disability leave to care for his sister was a contributing factor in his termination. Thus, there are triable issues of material fact as to the “undisputed facts” presented in the moving papers.

The Defendants’ motion for summary adjudication of the seventh cause of action for disability discrimination is DENIED.

Eighth Cause of Action for Race Discrimination

Plaintiff’s eighth cause of action is for race discrimination.

“A claim of racial discrimination under FEHA is a ‘disparate treatment’ claim.” (Arnold v. Dignity Health (2020) 53 Cal.App.5th 412, 424.) “The elements of a disparate treatment claim are ‘(1) the employee’s membership in a classification protected by the statute; (2) discriminatory animus on the part of the employer toward members of that classification; (3) an action by the employer adverse to the employee’s interests; (4) a causal link between the discriminatory animus and the adverse action; (5) damage to the employee; and (6) a causal link between the adverse action and the damage.’” (Id., 424–425.)

“Racist, sexist, or other biased comments in the workplace may give rise to a claim for unlawful harassment under a separate provision of the FEHA.” (Ibid. [italics added] [citing § 12940, subd. (j); see Lyle v. Warner Bros. Television Productions (2006) 38 Cal.4th 264, 277–278].) “But such comments alone do not support a claim under section 12940(a), nor do bigoted thoughts or beliefs by themselves.” (Ibid.) “Were it otherwise, the causation requirement in section 12940(a) would be eviscerated.” (Ibid.)

Section 12940(a) does not prohibit discrimination ‘in the air.’ ” (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 231.) “It prohibits discrimination that causes an employer ‘to refuse to hire or employ the person or to refuse to select the person for a training program leading to employment, or to bar or to discharge the person from employment or from a training program leading to employment, or to discriminate against the person in compensation or in terms, conditions, or privileges of employment.’ ” (Id. [citing § 12940(a)].)

Here, Defendants argue they are entitled to summary judgment on Plaintiff’s claim for racial discrimination because (1) there was not adverse employment action, (2) Defendants did not have a discriminatory motive, and (3) Defendants employment decisions were for non-discriminatory reasons.

As discussed above, the facts in support of these three arguments are all presented under the same issue in the separate statement. Pursuant to Code of Civil Procedure sections 437c, the separate statement shall only set forth material facts and there must be no triable issue as to any material fact presented in the separate statement. (Code Civ. Proc., § 437c, subd. (b) and Cal. Rules of Court, rule 3.1320, subd.(d)(1).) Accordingly, if there is a triable issue as to any of the facts, all three arguments fail since they are presented under the same issue.

The Court finds that there is a triable issue of material fact as to whether Plaintiff experienced an adverse employment action for the same reasons discussed above. Defendants contend that Plaintiff quit but Plaintiff testified in his deposition that he did not quit. Again, based on how the separate statement is drafted, this alone is grounds to deny the motion as to the seventh cause of action for disability discrimination.

In addition, Defendants point to Plaintiff’s deposition testimony on page 133-134 in support of their contention that they are entitled to summary judgment on this cause of action. The Court finds the interpretation of Plaintiff’s testimony a triable issue of material fact for the jury, especially when considered with Plaintiff’s other testimony such as that his disability leave to care for his sister was a contributing factor in his termination. Thus, there are triable issues of material fact as to the “undisputed facts” presented in the moving papers.

The Defendants’ motion for summary adjudication of the eighth cause of action for racial discrimination is DENIED.

C. Harassment

Plaintiff’s ninth cause of action is for work environment harassment.

Pursuant to Government Code section 12940(j), it is unlawful for an employer to harassment an employee based on his “race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, reproductive health decisionmaking, or veteran or military status”. (Gov. Code, § 12940, subd. (j).)

To establish a prima facie case of a harassment, the plaintiff must establish that (1) he was a member of a protected class; (2) he was subjected to unwelcome harassment; (3) the harassment was based on the protected class; (4) the harassment unreasonably interfered with her work performance by creating an intimidating, hostile, or offensive work environment; and (5) the defendants are liable for the harassment. (Thompson v. City of Monrovia (2010) 186 Cal.App.4th 860, 876.)

“[H]arassment consists of conduct outside the scope of necessary job performance, conduct presumably engaged in for personal gratification, because of meanness or bigotry, or for other personal motives.” (Jumaane v. City of Los Angeles (2015) 241 Cal.App.4th 1390, 1407.) “Harassment is not conduct of a type necessary for management of the employer’s business or performance of the supervisory employee’s job.” (Id.)

“Actionable harassment consists of more than ‘annoying or ‘merely offensive’ comments in the workplace,’ and it cannot be ‘occasional, isolated, sporadic, or trivial; rather, the employee must show a concerted pattern of harassment of a repeated, routine, or a generalized nature.’” (Cornell v. Berkeley Tennis Club (2017) 18 Cal.App.5th 908, 940.) “Whether the harassment is sufficiently severe or pervasive to create a hostile work environment ‘must be assessed from the ‘perspective of a reasonable person belonging to [same protected class as] the plaintiff.’” (Ibid.) “In making this assessment, we consider several factors, including ‘the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.’” (Ibid.)

“[W]hen the harassing conduct is not severe in the extreme, more than a few isolated incidents must have occurred to prove a claim based on working conditions.” (Cornell v. Berkeley Tennis Club (2017) 18 Cal.App.5th 908, 940.) “Four comments over several months does not establish a pattern of routine harassment creating a hostile work environment, particularly given that the comments were not extreme.” (Ibid.)

Ultimately, “The FEHA is ‘not a ‘civility code’ and [is] not designed to rid the workplace of vulgarity.’” (Sheffield v. Los Angeles County Dept. of Social Services (2003) 109 Cal.App.4th 153, 161.)

Here, Defendants argue they are entitled to summary adjudication as to the ninth cause of action for work environment harassment because (1) Plaintiff does not allege facts to show he was harassed based on a legally protected category and (2) Plaintiff’s alleged harassment does not give rise to a harassment claim under FEHA.

For the same reasons discussed above, the Court finds there are triable issues of material facts (such as the triable issues regarding undisputed fact 34). In addition, the Court finds that whether

Defendants conduct and comments related to Plaintiff’s Italian and Native American ancestry constitutes sufficient harassment is a triable issue of material fact.

The Motion is DENIED as to the ninth cause of action for work environment harassment.

D. Retaliation Claims

1. Tenth Cause of Action for Retaliation Pursuant to Government Code Section 12940(h)

Plaintiff’s tenth cause of action for retaliation pursuant to Government Code section 12940(h).

Pursuant to Government Code section 12940(h), it is an unlawful employment practice “[f]or any employer, labor organization, employment agency, or person to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part.” (Gov. Code, § 12940, subd. (h).)

“[I]n order to establish a prima facie case of retaliation under the FEHA, a plaintiff must show (1) he or she engaged in a protected activity, (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer’s action.” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042 [citations and internal quotation marks omitted].)

An employer seeking summary judgment on a retaliation claim “has the initial burden to present admissible evidence showing either that one or more elements of plaintiff’s prima facie case is lacking or that the adverse employment action was based upon legitimate, non[retaliatory] factors.” (Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 861.) When the employer meets that burden by identifying a legitimate, nonretaliatory reason for its decision, the burden shifts to the employee to raise a triable issue of pretext. (Id.)

Here, Defendants argued that Plaintiff cannot establish that (1) Plaintiff engaged in protected activity, (2) cannot show an adverse employment action or causal connection between the alleged retaliatory acts and the alleged protected activity, and (3) cannot establish that the alleged adverse employment action was for anything other than legitimate non-retaliatory reasons or that those reasons were a pretext for retaliation.

For the same reasons discussed above, the Court finds that Defendants’ separate statement in support of this cause of action creates triable issues of material fact. The Motion is DENIED as to the tenth cause of action for retaliation pursuant to Government Code section 12940(h).

2. Twelfth Cause of Action for Retaliation Pursuant To Labor Code Section 98.6 And 1102.5

a. Labor Code section 1102.5

“Section 1102.5 provides whistleblower protections to employees who disclose wrongdoing to authorities.” (Lawson v. PPG Architectural Finishes, Inc. (2022) 12 Cal.5th 703, 709.) “As relevant here, section 1102.5 prohibits an employer from retaliating against an employee for sharing information the employee ‘has reasonable cause to believe ... discloses a violation of state or federal statute’ or of ‘a local, state, or federal rule or regulation’ with a government agency,

with a person with authority over the employee, or with another employee who has authority to investigate or correct the violation.” (Id., [citing § 1102.5, subd. (b)].) “‘This provision,’ we have explained, ‘reflects the broad public policy interest in encouraging workplace whistleblowers to report unlawful acts without fearing retaliation.’” (Ibid.)

“[S]ection 1102.6 . . . supplies the applicable framework for litigating and adjudicating section 1102.5 whistleblower claims.” (Lawson v. PPG Architectural Finishes, Inc. (2022) 12 Cal.5th 703, 712.) “First, it must be ‘demonstrated by a preponderance of the evidence’ that the employee's protected whistleblowing was a ‘contributing factor’ to an adverse employment action.” (Id. [citing § 1102.6].) “Then, once the employee has made that necessary threshold showing, the employer bears ‘the burden of proof to demonstrate by clear and convincing evidence’ that the alleged adverse employment action would have occurred ‘for legitimate, independent reasons’ even if the employee had not engaged in protected whistleblowing activities.” (Ibid.)

Notably, “a protected disclosure under section 1102.5(b) encompasses reports or complaints of a violation made to an employer or agency even if the recipient already knows of the violation.” (People ex rel. Garcia-Brower v. Kolla's, Inc. (2023) 14 Cal.5th 719, 734.) Also, “[a] report of wrongdoing to the very person who is engaged in the wrongdoing is covered by the statute when the wrongdoer also happens to be the county sheriff, who, under the circumstances, may be the last person who might be willing to do anything about it. “ (Jaramillo v. County of Orange (2011) 200 Cal.App.4th 811, 827.)

b. Labor Code section 98.6

Labor Code section 98.6(a) states:

“A person shall not discharge an employee or in any manner discriminate, retaliate, or take any adverse action against any employee or applicant for employment because the employee or applicant engaged in any conduct delineated in this chapter, including the conduct described in subdivision (k) of Section 96, and Chapter 5 (commencing with Section 1101) of Part 3 of Division 2, or because the employee or applicant for employment has filed a bona fide complaint or claim or instituted or caused to be instituted any proceeding under or relating to their rights that are under the jurisdiction of the Labor Commissioner, made a written or oral complaint that they are owed unpaid wages, or because the employee has initiated any action or notice pursuant to Section 2699, or has testified or is about to testify in a proceeding pursuant to that section, or because of the exercise by the employee or applicant for employment on behalf of themselves or others of any rights afforded them.” (Lab. Code, § 98.6, subd. (a).)

c.

Analysis

Here, Defendants argue this cause of action fails because Plaintiff cannot (1) show he engaged in protected activity, (2) show an adverse employment action or a causal connection between the alleged retaliatory acts and the alleged protected activity, and (3) establish that the alleged adverse employment actions were for anything other than legitimate non-retaliatory reasons and he cannot show that those reasons were pretext for retaliation

For the same reasons discussed above, the Court finds that Defendants’ separate statement in support of this cause of action creates triable issues of material fact. The Motion is DENIED as to the twelfth cause of action for retaliation pursuant to Labor Code section 98.6 and 1102.50.

E. Eleventh Cause of Action for Failure to Prevent Harassment, Discrimination, and Retaliation

It is unlawful for an employer to “to fail to take all reasonable steps necessary to prevent discrimination...from occurring.” (Gov. Code § 12940, subd. (k).) However, a finding of actual discrimination, harassment, or retaliation under FEHA is required before a plaintiff may prevail on a claim for failure to prevent discrimination, harassment, or retaliation. (Dickson v. Burke Williams, Inc. (2015) 234 Cal.App.4th 1307, 1314.)

Defendants argues that this cause of action fails because “Plaintiff cannot establish the underlying claims of discrimination, harassment, and retaliation.” As discussed above, Plaintiff’s discrimination, harassment, and retaliation causes of action survive the motion.

Accordingly, the Motion is DENIED as to the eleventh cause of action for failure to prevent harassment, discrimination, and retaliation.

F. Thirteenth Cause of Action for Failure to Provide Reasonable Accommodation

Plaintiff’s thirteenth cause of action is for failure to provide reasonable accommodation.

Pursuant to Government Code section 12940(m), it is unlawful for an employer “to fail to make reasonable accommodation for the known physical or mental disability of an applicant or employee.” (Gov. Code, § 12940, subd. (m).)

“An employer’s duty to reasonably accommodate an employee's disability is not triggered until the employer knows of the disability.” (Featherstone v. Southern California Permanente Medical Group (2017) 10 Cal.App.5th 1150, 1166–1167.)

“Generally, [t]he employee bears the burden of giving the employer notice of the disability.” (Featherstone v. Southern California Permanente Medical Group (2017) 10 Cal.App.5th 1150, 1167.) “An employer, in other words, has no affirmative duty to investigate whether an employee’s illness might qualify as a disability.” (Ibid.) “[T]he employee can't expect the employer to read his mind and know he secretly wanted a particular accommodation and sue the employer for not providing it.” (Ibid.) “Nor is an employer ordinarily liable for failing to accommodate a disability of which it had no knowledge.” (Ibid.)

“[A]n employer ‘knows an employee has a disability when the employee tells the employer about his condition, or when the employer otherwise becomes aware of the condition, such as through a third party or by observation.’ ” (Featherstone v. Southern California Permanente Medical Group (2017) 10 Cal.App.5th 1150, 1167.)

“While knowledge of the disability can be inferred from the circumstances, knowledge will only be imputed to the employer when the fact of disability is the only reasonable interpretation of the known facts.” (Featherstone v. Southern California Permanente Medical Group (2017) 10 Cal.App.5th 1150, 1167.) “Vague or conclusory statements revealing an unspecified incapacity are not sufficient to put an employer on notice of its obligations under the [FEHA].” (Ibid.)

“Moreover, [e]vidence that a decision maker learned of a plaintiff's disability after deciding to take adverse employment action is not probative of whether the decision maker was aware of the

plaintiff's disability when he or she made the decision.” (Featherstone v. Southern California Permanente Medical Group (2017) 10 Cal.App.5th 1150, 1167.)

“Put simply, unless there is some evidence an employer knows an employee is suffering from a disability, it is impossible for an employee to claim he or she was discharged because of it or that an employer refused to accommodate the disability.” (Featherstone v. Southern California Permanente Medical Group (2017) 10 Cal.App.5th 1150, 1167.)

“If an employee with a known disability is having difficulty performing his or her job, an employer may inquire whether the employee is in need of a reasonable accommodation.” (Spitzer v. The Good Guys, Inc. (2000) 80 Cal.App.4th 1376, 1384.) “In general, however, it is the responsibility of the individual with a disability to inform the employer that an accommodation is needed.” (Ibid.)

“Employers must make reasonable accommodations to the disability of an individual unless the employer can demonstrate that doing so would impose an ‘undue hardship.’” (Prilliman v. United Air Lines, Inc. (1997) 53 Cal.App.4th 935, 947.)

Here, Defendant argues that the thirteenth cause of action for failure to provide reasonable accommodation fails because Plaintiff “cannot show that he was denied a reasonable accommodation.” Plaintiff created a triable issue of material fact as to whether he received the accommodations he needed and requested leave. Plaintiff testified during his deposition that he was not given time off for the infection to his arm. Rather, Witt told Plaintiff that he would have to wait for the time off until it was his “home time.” (See Plaintiff’s Deposition, pp. 15:1-21:25.)

Plaintiff testified that he did not expressly request the time because he was denied the leave before he had the opportunity to request it. Instead, Plaintiff was required to finish the load and seek medical attention after the delivery – after which, the injury became infected. Whether this is sufficient is a triable issue of material fact.

The Motion is DENIED as to the thirteenth cause of action for failure to provide reasonable accommodation.

G. Fourteenth Cause of Action for Failure to Engage in Good Faith Interactive Process

Government Code section 12940(n) states that it is unlawful for an employer to “fail to engage in a timely, good faith, interactive process with the employee or applicant to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee or applicant with a known physical or mental disability or known medical condition.” (Gov. Code, § 12940 (n).)

“Although the interactive process is an informal process designed to identify a reasonable accommodation that will enable the employee to perform his or her job effectively [citation], an employer’s failure to properly engage in the process is separate from the failure to reasonably accommodate an employee’s disability and gives rise to an independent cause of action [citation].” (Swanson v. Morongo Unified School Dist. (2014) 232 Cal.App.4th 954, 971, as modified on denial of reh'g (Dec. 23, 2014).)

“The employee must initiate the process unless his or her disability and the resulting limitations are obvious. Once initiated, the employer has a continuous obligation to engage in the interactive process in good faith.” (Swanson v. Morongo Unified School Dist. (2014) 232 Cal.App.4th 954, 971, as modified on denial of reh'g (Dec. 23, 2014).)

“Both employer and employee have the obligation ‘to keep communications open’ and neither has ‘a right to obstruct the process.” (Swanson v. Morongo Unified School Dist. (2014) 232 Cal.App.4th 954, 971–972, as modified on denial of reh'g (Dec. 23, 2014).) “Each party must participate in good faith, undertake reasonable efforts to communicate its concerns, and make available to the other information which is available, or more accessible, to one party.” (Id. 972.)

“Liability hinges on the objective circumstances surrounding the parties’ breakdown in communication, and responsibility for the breakdown lies with the party who fails to participate in good faith.” (Swanson v. Morongo Unified School Dist. (2014) 232 Cal.App.4th 954, 972, as modified on denial of reh'g (Dec. 23, 2014).) Moreover, “[t]o prevail on a claim under section 12940, subdivision (n) for failure to engage in the interactive process, an employee must identify a reasonable accommodation that would have been available at the time the interactive process should have occurred.” (Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1018.)

Here, Defendants argue that this cause of action fails because (1) Plaintiff cannot establish that Defendants did not engage with his required accommodations in a timely, good faith, interactive process to determine effective reasonable accommodations and (2) Defendant responded to Plaintiff’s requests with reasonable accommodations per Plaintiff’s medical restrictions. For the same reasons discussed above, the Court finds there is a triable issue of material fact. Whether Defendant engaged in a timely, good faith, interactive process with Plaintiff upon learning of his arm injury is a triable issue of material fact, especially given Plaintiff presented evidence that he was required to finish his load before seeking medical attention for his arm injury at the direction of his supervisor, after he notified his supervisor of the injury.

H. Fifteenth Cause of Action for Violation of Business and Professions Code, section 17200

Defendants argue that this cause of action is subject to summary adjudication because it is derivative of Plaintiff’s other causes of action that “fail as a matter of law.” Because the Court finds that there are triable issues of material facts as to Plaintiff’s other causes of action, the Motion is DENIED as to the fifteenth cause of action for violation of Business and Professions code section 17200 as well.

I. Sixteenth Cause of Action for Wrongful Termination in Violation of Public Policy

Plaintiff’s sixteenth cause of action is for wrongful termination in violation of public policy.

At-will employees may recover tort damages from their employers if they can show they were discharged in contravention of fundamental public policy. (Yau v. Santa Margarita Ford, Inc. (2014) 229 Cal.App.4th 144, 155.) “The elements of a claim for wrongful discharge in violation of public policy are (1) an employer-employee relationship, (2) the employer terminated the plaintiff’s employment, (3) the termination was substantially motivated by a violation of public policy, and (4) the discharge caused the plaintiff harm.” (Id. at p. 154.)

“A discharge is actionable as against public policy if it violates a policy that is: (1) delineated in either constitutional or statutory provisions; (2) ‘public’ in the sense that it ‘inures to the benefit of the public’ rather than serving merely the interests of the individual; (3) well established at the time of the discharge; and (4) ‘substantial’ and ‘fundamental.’” (Nosal-Tabor v. Sharp Chula Vista Medical Center (2015) 239 Cal.App.4th 1224, 1238–1239.)

A claim for wrongful termination based upon FEHA cannot survive if the underlying FEHA claims upon which it depends cannot survive. (Featherstone v. S. California Permanente Med. Grp. (2017) 10 Cal.App.5th 1150, 1169 [“if an employer did not violate FEHA, the employee’s claim for wrongful termination in violation of public policy necessarily fails.”].)

Here, Defendants argue that the “sixteenth cause of action for wrongful termination in violation of public policy as to Defendant Swift Transportation fails as a matter of law, because Plaintiff cannot establish that he was terminated for statutory discrimination or retaliation.” For all the reasons discussed above, the Court finds that there are triable issues of material fact regarding the undisputed facts set forth in the separate statement for this cause of action. The Motion is DENIED as to the sixteenth cause of action for wrongful termination in violation of public policy.

J. Summary

In sum, the Court rules as follows:

• The Motion is GRANTED as to the second cause of action for failure to provide overtime compensation, third cause of action for failure to provide rest breaks, fifth cause of action for waiting time penalties, and sixth cause of action for failure to provide accurate itemized wage statements.

• The Motion is DENIED as to the first cause of action for failure to pay wages, seventh cause of action for disability/perceived disability discrimination, eighth cause of action for race discrimination, ninth cause of action for work environment harassment, tenth cause of action for retaliation pursuant to Government Code section 12940(h), eleventh cause of action for failure to prevent harassment, discrimination, and retaliation, twelfth cause of action for retaliation pursuant to Labor Code section 98.6 and 1102.5, thirteenth cause of action for failure to provide reasonable accommodation, fourteenth cause of action for failure to engage in good faith interactive process, fifteenth cause of action for violation of Business and Professions code section 17200, and sixteenth cause of action for wrongful termination in violation of public policy.

The Court did not address the fourth cause of action for failure to indemnify/reimburse.

Plaintiff to give notice.

9. 30-2024-01399839 1. Motion for Summary Judgment and/or Adjudication

Lakeview Village Corp. Cross Complainants and Cross-Defendants Pete John Coury (DOB 04/08/1936) (“Pete Coury”) vs. Court and Patricia Ovilia Coury (“Trish Coury”), individually and as Co-Trustees of the Pete J. Coury Revocable Trust dated August 21, 2002 (collectively, “Trustees” or “Moving Parties/MP”) move the Court for an Order Granting Summary Adjudication on: (1) the Twelfth Cause of Action for Declaratory Relief in the Trustees’ First Amended Cross-Complaint (“Trustees’ FACC”); and (2) the Fourteenth Cause of Action for Aiding and Abetting Breach of Fiduciary Duty in the First Amended Cross-Complaint (“PJ Coury Parties’ FACC”) of Cross-Complainant and Cross- Defendant Pete John Coury (DOB 02/14/2003) (“PJ Coury”), and Cross-Complainants Homes West, Inc. (“Homes West”) and La Alcancia, Inc. (“La Alcancia,” and together with Homes West and PJ Coury, the “PJ Coury Parties”).