DE LA PENA vs FREMONT BANK, et al.

24CV103587: DE LA PENA vs FREMONT BANK, et al. 08/27/2026 Hearing on Motion for Summary Judgment filed by Fremont Bank (Defendant) CRS# 800809785172 in Department 518

Tentative Ruling - 08/06/2026 Mark Fickes

The Motion for Summary Judgment filed by Fremont Bank on 04/24/2026 is Granted.

Note: if this Motion for Summary Judgment is contested by either party, the hearing will be held IN PERSON on August 13, 2026, at 2:30pm in Dept. 518.

Background

On December 17, 2024, Plaintiff Richard De La Pena filed a complaint against his former employer Fremont Bank alleging nine causes of action including discrimination, harassment, retaliation, and wrongful termination.

On March 3, 2025, Defendant Fremont Bank filed its Answer generally denying Plaintiff’s allegations and asserting a same-actor defense as well as eleven affirmative defenses.

On April 4, 2026, Defendant filed a Motion for Summary Judgment or in the alternative Summary Adjudication which is opposed.

Objections

Plaintiff’s objections to Defendant’s Separate Statement

While it is true that Defendant did not strictly comply with CRC Rule 3.1350(H), the Court does not find this to be a sufficient ground to deny the motion and thus will overlook any formatting issues. (CCP § 437c(b)(1).)

Other Objections

As to the other objections, “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. Objections to evidence that are not ruled on for purposes of the motion shall be preserved for appellate review.” (CCP § 437c(q).)

Legal Standard

“A party may move for summary judgment in an action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding.”(CCP§437c(a)(1).)

“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 24CV103587: DE LA PENA vs FREMONT BANK, et al. 08/27/2026 Hearing on Motion for Summary Judgment filed by Fremont Bank (Defendant) CRS# 800809785172 in Department 518 of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense to thecause 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. . .,or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs.”(CCP§437c(f)(1).)“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.”(Id.)

“[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.”(Aguilar v. Atl. Richfield Co.(2001) 25 Cal. 4th 826, 850.)“That is because of the general principle that a party who seeks a court’s action in his favor bears the burden of persuasion thereon.”(Id.) Further, “the party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.”(Id.)“[T]he opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.”(Id.)“There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.”(Id.)

On summary judgment or adjudication, the moving party’s evidence is strictly construed, while the opposing party’s evidence is liberally construed and entitled to all reasonable inferences.(Miller v. Department of Corrections, 36 Cal.4th 446, 470 (2005);Saelzlerv. Advanced Group 400, 25 Cal.4th 763, 768 (2001).)

“A motion for summary adjudication may be made by itself or as an alternative to a motion for summary judgment and shallproceedin all procedural respects as a motion for summary judgment.”(CCP § 437c (f)(2).)

Discussion

Defendant Fremont Bank moves for summary judgement as to all of Plaintiff Richard de la Pena’s causes of action or in the alternative summary adjudication to each cause of action and asks that the request for punitive damages be stricken.

Age Discrimination (First Cause of Action)

“In order to make out a prima facie case of age discrimination under FEHA, a plaintiff must present evidence that the plaintiff (1) is over the age of 40; (2) suffered an adverse employment action; (3) was performing satisfactorily at the time of the adverse action; and (4) suffered the adverse action under circumstances that give rise to an inference of unlawful discrimination, i.e., evidence that the plaintiff was replaced by someone significantly younger than the plaintiff.”

SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA

24CV103587: DE LA PENA vs FREMONT BANK, et al. 08/27/2026 Hearing on Motion for Summary Judgment filed by Fremont Bank (Defendant) CRS# 800809785172 in Department 518 (Sandell v. Taylor-Listug, Inc. (2010) 188 Cal.App.4th 297, 321.)

It is undisputed, Mr. de la Pena is a 75-year old Hispanic man and is thus over the age of 40. He was terminated on May 21, 2024, (UMF 20.) Plaintiff de la Pena was highly qualified for his position since he had decades of legal experience, was hired as Senior Counsel, received several positive evaluations, raises and bonuses and was viewed as competent. (AMF 28 - 30 and 35 - 37.) Mr. de la Pena was over the age of 70 when he was terminated over Ben Hyman who was 29, which gives an inference of discrimination. (DMF 27, de la Peña Depo. 225:14-226:8.)

Plaintiff’s “prima facie burden is light; the evidence necessary to sustain the burden is minimal. Generally, an employee need offer only sufficient circumstantial evidence to give rise to a reasonable inference of discrimination.” (Moore v. Regents of Univ. of California (2016) 248 Cal.App.4th 216, 235 [citation omitted].) If, as here, a motion for summary judgment or adjudication relies in whole or in part on a showing of nondiscriminatory reasons for an adverse employment action, the employer may satisfy its burden as moving party if it “presents evidence of such nondiscriminatory reasons that would permit a trier of fact to find, more likely than not, that they were the basis” for the adverse action. (Scotch v.

Art Inst. of California (2009) 173 Cal.App.4th 986, 1005.) “Once an employer has offered a legitimate, nondiscriminatory reason for the adverse employment action, a plaintiff must offer evidence that the employer’s stated reason is either false or pretextual, or evidence that the employer acted with discriminatory animus, or evidence of each which would permit a reasonable trier of fact to conclude the employer intentionally discriminated.” (Moore v. Regents of Univ. of California (2016) 248 Cal.App.4th 216, 238.)

Defendant offers that Mr. Chenoweth decided to terminate Plaintiff due to a reduction in headcount and based on certain issues including a critical performance review in 2022 and a presentation by Mr. de la Pena in 2024, Mr. Chenoweth decided to terminate de la Pena. (UMF 3, 12 – 19, 22.) By the end of 2023, interest rates had risen to a level at which the Bank made the decision to reduce its headcount. (UMF 12, Handman Decl., Ex. A, Chenoweth Dep. 141:25- 142:20.) Further the 2022 performance review of Plaintiff notes “several items which need improvement.” (UMF 3, Chenoweth Decl., ex.

B.) Finally, there was a presentation that was made by de la Pena which is described as “disjoined, very rambling.. cringe worthy Embarrassing to board members.” (UMF 17, Johnson Depo., ex H. 45:8 – 13; See also Hyman Depo., ex G. 207:1 12 [“the best way to describe it is it was a mess It was rambling.”].)

Thus, Defendant has presented evidence that Mr. Chenoweth terminated Plaintiff for nondiscriminatory business reasons. Plaintiff is then tasked with providing evidence that Defendant’s given reason for terminating him is pretextual and a reasonable trier of fact could conclude that Plaintiff’s employer intentionally discriminated against Plaintiff due to his age.

Plaintiff points to his own deposition for support that he was terminated due to age because Chris Chenoweth said he’d rather have Ben Hyman than de la Pena and mentioned Hyman’s age as being 29. (DMF 19, de la Peña Depo. 223:7-10, and 225:14-226:8)

SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA

24CV103587: DE LA PENA vs FREMONT BANK, et al. 08/27/2026 Hearing on Motion for Summary Judgment filed by Fremont Bank (Defendant) CRS# 800809785172 in Department 518

Plaintiff’s separate statement alleges that there is a quote "it's between you and Ben, who's 29. And I've decided to choose Ben." (See DMF 26) but the deposition does not contain that exact quote at 225:14 – 226:8 but does state:

Q. Okay. At any point during this meeting with Chris Chenoweth and Ken Johnson, was Ben Hyman's age mentioned?

MR. PERETZ: Asked and answered. You can answer again.

THE WITNESS: Yes, it was.

BY MR. HANDMAN:

Q. What in particular was said about Ben Hyman's age?

A. His being 29, and me being over 70. He didn't mention my age. I knew what my age was.

Q. Who said that Ben was 29 during this meeting?

MR. PERETZ: Asked –

THE WITNESS: Chris did.

THE COURT REPORTER: I'm sorry. I didn't hear that, Counsel.

MR. PERETZ: Asked and answered. You can answer again. Sorry.

THE WITNESS: Chris did.

(See Peretz Decl., ex. 1.)

Defendant notes that Chris Chenoweth testified that Hyman’s work was high quality and that he grew up around the bank and was intelligent and well-qualified. (UMF 10, 11.)

Further, Defendant points out that Plaintiff testified that neither Chenoweth nor anyone else at Fremont Bank made any negative comments about his age or Hispanic origin. (UMF 27, Handman Decl. ex. B, de la Pena depo. 42:4-6, 43:5-16.)

Based on the facts above, Mr. de la Pena failed to establish a prima facie case of age discrimination. Further, Fremont Bank has provided legitimate, nondiscriminatory reasons for its actions which Plaintiff failed to show were pretextual.

SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA

24CV103587: DE LA PENA vs FREMONT BANK, et al. 08/27/2026 Hearing on Motion for Summary Judgment filed by Fremont Bank (Defendant) CRS# 800809785172 in Department 518

Causes of Action 2 – 9

Defendant takes the stance that the same facts asserted in its separate statement as to age discrimination apply to every other cause of action (2 – 9) against it and thus the complaint cannot stand. (See Def. SS pp. 8 – 9.)

Defendant Fremont Bank also argues that the ‘same actor inference’ applies. The ‘same actor inference’ occurs when the same individual, in this case Chris Chenoweth, both hires and terminates an employee which allows for a strong inference that the decision was not motivated by discriminatory animus. (UMF 2, 22; See Nazir v. United Airlines, Inc. (2009) 178 Ca272 [4th 243, 272 [“Where the same actor is responsible for both the hiring and the firing of a discrimination plaintiff, and both actions occur within a short period of time, a strong inference arises that there was no discriminatory motive.

The rationale underlying the inference, we said, is that from the standpoint of the putative discriminator, it hardly makes sense to hire workers from a group one dislikes (thereby incurring the psychological costs of associating with them), only to fire them once they are on the job.When the allegedly discriminatory actor is someone who has previously selected the plaintiff for favorable treatment, that is very strong evidence that the actor holds no discriminatory animus, and the plaintiff must present correspondingly stronger evidence of bias in order to prevail.” (internal citations, quotation marks, and brackets omitted)].)

The ‘same actor inference’ weighs heavily in favor of Defendant.

The elements of disparate treatment race/national origin discrimination claims are the same as for age discrimination: (1) membership in a protected class; (2) competent performance; (3) an adverse employment action; and (4) circumstances suggesting a discriminatory motive. (Gov. Code § 12940(a); Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 380.)

Regarding national origin discrimination, Defendant relies on the same facts alleged above as to the first cause of age to show that there are legitimate business reasons to terminate Plaintiff and the same actor inference weighs in the banks favor.

Defendant also offers that Hispanic individuals comprised 18 – 19 percent of its employee population. (UMF 8.)

Plaintiff is then allowed to offer evidence to support the notion that these reasons amount to pretext. Plaintiff offers that his age and national original may have been identified during discussions regarding workforce reductions, that he advocated regarding Hispanic representation, and that the statistics show Hispanics were underrepresented in the company. (DMF 22, 51 – 62.) Plaintiff’s expert William Lepowsky also offers support for the notion that the Hispanic population at the bank is underrepresented. (PAMF 65, Lepowsky Decl. ¶¶ 17 – 36.)

These statistics and mentions of age and national origin fail to offer proof of discrimination on

SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA

24CV103587: DE LA PENA vs FREMONT BANK, et al. 08/27/2026 Hearing on Motion for Summary Judgment filed by Fremont Bank (Defendant) CRS# 800809785172 in Department 518 their own without a specific employment practice being identified as discriminatory and/or specific discrimination against Plaintiff.

Plaintiff failed to identify any policy that supports a disparate impact or disparate treatment claim. (UMF 25, 26.) Plaintiff urges that DEI training was inadequate and Hispanics were underrepresented but does not point to a specific policy or action.

Based on the evidence presented, Mr. de la Pena failed to establish a prima facie case of discrimination as there is no evidence that anyone discriminated against him or even made discriminatory remarks towards him based on his national origin or age. Further, Fremont Bank has provided legitimate, nondiscriminatory reasons for its actions which Plaintiff failed to show were pretextual.

As to retaliation, Plaintiff has offered no evidence that an email regarding Hispanic underrepresentation dated October 6, 2022, motivated Chenoweth to terminate his employment 19 months later in May 2024. (UMF 7 – 8.) Further, Plaintiff, per his own testimony, was never disciplined regarding this email. (UMF 9.)

Since the Court has not found any discrimination by Defendant against Plaintiff, all other causes of action including harassment based on discrimination, failure to protect, wrongful termination, and unfair business practices must fail as they are derivative of the discrimination claims.

Thus, for all the forgoing reasons, the Court GRANTS Defendant Fremont Bank’s Motion for Summary Judgment.

Note: if this Motion for Summary Judgment is contested by either party, the hearing will be held IN PERSON on August 13, 2026, at 2:30pm in Dept. 518.

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PLEASE NOTE: Pursuant to California Rule of Court 3.1308, subdivision (a)(1), this tentative ruling will become the order of the Court unless it is contested before 4:00 PM on the court day preceding the noticed hearing.

To contest a tentative ruling, a party should do the following:

First, the party must notify Department 518, by email at Dept518@alameda.courts.ca.gov and copy all counsel of record and self-represented parties. The contesting party must state in the subject line of the email the case name, case number and motion.

SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA

24CV103587: DE LA PENA vs FREMONT BANK, et al. 08/27/2026 Hearing on Motion for Summary Judgment filed by Fremont Bank (Defendant) CRS# 800809785172 in Department 518 Second, the party shall log into the eCourt Public Portal, search for this case (e.g., by case number), select the case name, select the "Tentative Rulings" tab, click the "Click to Contest this Ruling" button, enter the party's name and a brief statement of the party's reason for contesting the tentative, and click "Proceed."

Please note the Court does not permit remote appearances for motions for summary judgment that are contested. If you contest a Motion for Summary Judgment, you must appear in person.

For all other motions (unless otherwise noted in the tentative ruling), Parties may appear via videoconference, using the Zoom.com website or application. TO CONNECT TO ZOOM: Department 518 is inviting you to a scheduled ZoomGov meeting.

Topic: Department 518's Personal Meeting Room

Join ZoomGov Meeting https://alameda-courts-ca-gov.zoomgov.com/j/16054307984

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