Murillo vs. Ultra Personnel, LLC

When a demurrer is sustained with leave to amend, the plaintiff retains the right to voluntarily dismiss without prejudice only until the time to amend expires. (Wells v. Marina City Properties, Inc. (1981) 29 Cal.3d 781, 789; Parsons v. Umansky (1994) 28 Cal.App.4th 867.)

A plaintiff’s right to voluntarily dismiss is also terminated once a demurrer is sustained without leave to amend, even if judgment has not yet been entered. (Gutkin v. University of Southern California (2002) 101 Cal.App.4th 967, 974.)

Here, on March 4, 2026, the Court sustained Defendant’s demurrer to the Fourth Cause of Action with leave to amend and sustained the demurrer to the Sixth Cause of Action without leave to amend. (RJN, Ex. 3.) Plaintiffs’ deadline to file a Second Amended Complaint was subsequently extended to May 7, 2026. (RJN, Ex. 4.) Plaintiffs did not amend by that deadline. Defendant thereafter filed the present motion to dismiss on May 15, 2026.

On August 26, 2026, more than three months after the amendment deadline expired, Plaintiffs filed a request for dismissal of Defendant without prejudice, which the clerk entered. By that time, however, Plaintiffs’ right to voluntarily dismiss without prejudice had already terminated.

Accordingly, the dismissal without prejudice entered on August 26, 2026, is VACATED, and Defendant’s motion to dismiss with prejudice is GRANTED.

Defendant to give notice.

8 LCY OFF CALENDAR Partnership vs. Rainbow Auto Collision, Inc. 9 Rose vs. 1 CONTINUED TO 12/16/26

10 Murillo vs. Ultra TENTATIVE RULING: Personnel, LLC Defendants Ultra Personnel, LLC, and INX Prints, Inc. move for summary judgment on the Complaint of Plaintiff Irma Murillo, or in the alternative, summary adjudication on each cause of action therein. For the following reasons, the unopposed motion for summary judgment is GRANTED.

Statement of Law

A party may move for summary judgment where the moving party contends the action has no merit or that there is no defense to the action or proceeding. (See Code Civ. Proc., § 437c(a)(1).)

A “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 . . . .” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) “A prima facie showing is one that is sufficient to support the position of the party in question.” (Id. at p. 851.) A defendant moving for summary judgment or summary adjudication satisfies his or her initial burden by showing that one or more elements of the cause of action cannot be established or that there is a complete defense to the cause of action. (Code Civ.

Proc., § 437c(p)(2).) The scope of this burden is determined by the allegations of the plaintiff’s complaint. (FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381–82 [pleadings serve as the outer measure of materiality in a summary judgment motion]; 580 Folsom Associates v. Prometheus Development Co. (1990) 223 Cal.App.3d 1, 18–19 [respondent only required to defeat allegations reasonably contained in the complaint].) A cause of action “cannot be established” if the undisputed facts presented by the defendant prove the contrary of the plaintiff’s allegations as a matter of law. (Brantley v.

Pisaro (1996) 42 Cal.App.4th 1591, 1597.)

Once the moving party meets that burden, the burden shifts to the party opposing summary judgment or summary adjudication to show, by reference to specific facts, the existence of a triable issue as to an affirmative defense or cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 855; Villacres v. ABM Industries, Inc. (2010) 189 Cal.App.4th 562, 575.) The opposing party must present substantial and admissible evidence creating a triable issue. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 163.)

In ruling on a motion for summary judgment or summary adjudication, the court must “consider all of the evidence” and all of the “inferences” reasonably drawn therefrom [citing Code Civ. Proc., § 437c(c)] and must view the evidence and inferences “in the light most favorable to the opposing party.” (Aguilar, supra, 25 Cal.4th at p. 843.) A court may not make credibility determinations or weigh the evidence on a motion for summary judgment or adjudication, 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.) The moving party’s papers are to be strictly construed,

while the opposing party’s papers are to be liberally construed. (Committee to Save Beverly Highland Homes Ass’n v. Beverly Highland (2001) 92 Cal.App.4th 1247, 1260.)

First Cause of Action (Gender Discrimination) and Third Cause of Action (FEHA-Retaliation)

The first cause of action alleges Defendants Ultra Personnel and INX Prints discriminated against Plaintiff on the basis of gender, sexual orientation and/or gender expression by terminating her employment. (See Compl. ¶¶ 13, 14, 24.) The third cause of action alleges Defendants retaliated against Plaintiff based on her complaining of sexual harassment. (See Compl. ¶¶ 12, 14, 36.)

California has adopted the three-stage burden-shifting test established by the United States Supreme Court for trying discrimination claims. (Guz v. Bechtel (2000) 24 Cal.4th 326, 354.) At trial, the socalled McDonnell Douglas test places on the plaintiff the initial burden to establish a prima facie case of discrimination. (Ibid.) If, at trial, the plaintiff establishes a prima facie case, a presumption of discrimination arises. (Id. at p. 355.) At this trial stage, the burden shifts to the employer to rebut the presumption by producing admissible evidence, sufficient to raise a genuine issue of fact and to justify a judgment for the employer, that its action was taken for legitimate, nondiscriminatory reason. (Id. at pp. 355-356.)

If the employer sustains this burden, the presumption of discrimination disappears, and the plaintiff then must have the opportunity to attack the employer’s proffered reasons as pretexts for discrimination or to offer any other evidence of discriminatory motive. (Id. at p. 356.)

The McDonnell Douglas test was originally developed for use at trial, not in summary judgment proceedings. (Arteaga v. Brinks, Inc. (2008) 163 Cal.App.4th 327, 343-344.) A defendant employer’s motion for summary judgment slightly modifies the order of these showings. (Kelly v. Stamps.com Inc. (2005) 135 Cal.App.4th 1088, 1097.) If, as here, the summary judgment motion relies in whole or in part on a showing of nondiscriminatory reasons for the adverse employment action, the employer satisfies 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 employment action. (Id. at pp. 1097-1098.)

To defeat the motion, the employee then must adduce or point to evidence raising a triable issue that would permit a trier of fact to find by a preponderance that intentional discrimination occurred. (See id. at p. 1098; see also Scotch v. The Art Inst. of Cal.-Orange Cty., Inc. (2009) 173 Cal.App.4th 986, 1004-1005.)

In the context of an employer’s motion for summary judgment, the McDonnell Douglas three-stage burden shifting test for a retaliation claim is treated the same as a discrimination claim. (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042; see also Batarse v. Service Employees Internat. Union, Local 1000 (2012) 209 Cal.App.4th 820, 831.) An employer pursuing summary judgment may attempt to show the employee is unable to establish a prima facie case of retaliation or, alternatively, may skip to the second stage and demonstrate the employer had a legitimate business reason, unrelated to retaliation, for taking the adverse employment action. (Batarse, 209 Cal.App.4th at 832.)

Here, Moving Defendants meet their initial burden to show a nondiscriminatory and nonretaliatory reason for Plaintiff’s termination: frequent absenteeism and tardiness. (See Defs.’ Sep. St. Nos. 13, 16 [and evidence cited therein].) Plaintiff’s time sheets show she was tardy 70 times between February 14, 2022, and August 19, 2022, and the day of her discharge, she notified Defendants she was running late to work. (See Defs.’ Sep. St. Nos. 14-15 [and evidence cited therein].)

Plaintiff chose not to oppose the motion and, thus, does not meet her shifted burden to show a triable issue that intentional discrimination or retaliation occurred.

Second Cause of Action (Gender Harassment)

The second cause of action alleges Defendants harassed Plaintiff and/or created a hostile work environment on the basis of Plaintiff’s gender, sexual orientation and/or gender expression. (FAC ¶¶ 13, 30.)

The elements of a FEHA claim of harassment creating hostile work environment are: (i) plaintiff is a member of a protected class; (ii) plaintiff was subjected to unwelcome harassment; (iii) the harassment was based on plaintiff’s protected status; (iv) the harassment unreasonably interfered with plaintiff’s work performance by creating an intimidating, hostile, or offensive work environment; and (v) defendants are liable for the harassment. (Ortiz v. Dameron Hospital Assn. (2019) 37 Cal.App.5th 568, 581.) FEHA is violated when the harassment is sufficiently severe or pervasive to alter the conditions of the victim’s employment. (Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 129–130.)

“Whether the sexual conduct complained of is sufficiently pervasive to create a hostile or offensive work environment must be determined

from the totality of the circumstances. [Citation.] .... [¶] The factors that can be considered in evaluating the totality of the circumstances are: (1) the nature of the unwelcome sexual acts or works (generally, physical touching is more offensive than unwelcome verbal abuse); (2) the frequency of the offensive encounters; (3) the total number of days over which all of the offensive conduct occurs; and (4) the context in which the sexually harassing conduct occurred. [Citation.] [¶] In determining what constitutes ‘sufficiently pervasive’ harassment, the courts have held that acts of harassment cannot be occasional, isolated, sporadic, or trivial, rather the plaintiff must show a concerted pattern of harassment of a repeated, routine of a generalized nature. [Citation.]” (Etter v.

Veriflo Corp. (1998) 67 Cal.App.4th 457, 465, citing Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 609-610.)

Here, the undisputed facts show Plaintiff cannot establish pervasive harassment creating a hostile or offensive work environment that unreasonably interfered with her work performance. (See Defs.’ Sep. St. No. 32 [and evidence cited therein].) Instead, the undisputed facts show only occasional, isolated, sporadic, or trivial incidents of sexual harassment and no unreasonable interference with work. (See ibid.)

Fifth Cause of Action (Failure to Prevent Discrimination, Harassment, and Retaliation)

The fifth cause of action alleges Defendants failed to prevent discrimination, harassment, and retaliation in violation of FEHA. This claim is derivative of the first, second, and third causes of action and, thus, fails for the same reasons.

Fourth Cause of Action (Whistleblower Retaliation)

The fourth cause of action alleges Defendants terminated Plaintiff for raising complaints regarding activities Plaintiff believed to be illegal, including discrimination and harassment. (Compl. ¶¶ 43-44.)

Labor Code section 1102.5 prohibits retaliation against an employee who discloses or is believed to disclose information to any person with authority to investigate the matter, any public body conducting an invitation, hearing, or inquiry. (See Lab. Code, § 1102.5(b)-(c).)

Here, the undisputed facts show Plaintiff cannot establish a retaliation claim, as Plaintiff did not report any harassment until after Defendants had terminated her employment. (Defs.’ Sep. St. Nos. 40- 42 [and evidence cited therein].)

Sixth Cause of Action (Wrongful Termination)

The sixth cause of action alleges Defendants Ultra Personnel and INX Prints wrongfully terminated Plaintiff in violation of public policies set forth in FEHA and Labor Code section 1102.5.

To state a claim for wrongful termination in violation of public policy, a plaintiff must allege that (i) the plaintiff was employed by the defendant; (ii) the defendant discharged the plaintiff; (iii) the alleged violation of public policy was a substantial motivating reason for the plaintiff’s discharge; and (iv) the discharge caused the plaintiff harm. (CACI 2430; see also Holmes v. General Dynamics Corp. (1993) 17 Cal.App.4th 1418, 1426.)

This claim is derivative of the first and fourth causes of action and, thus, fails on the same grounds.

Seventh Cause of Action (IIED)

The seventh cause of action alleges Defendants’ discriminatory, harassing, and retaliatory actions caused Plaintiff to suffer extreme emotional distress. (Compl. ¶ 68.)

To state a claim for intentional infliction of emotional distress, plaintiff must allege: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct. (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050-1051.)

“A defendant’s conduct is ‘outrageous’ when it is so ‘extreme as to exceed all bounds of that usually tolerated in a civilized community.’ And the defendant’s conduct must be ‘intended to inflict injury or engaged in with the realization that injury will result.’” (Id.) “Liability for intentional infliction of emotional distress does not extend to mere insults, indignities, threats, annoyance, petty oppressions, or other trivialities.” (Bock v. Hansen (2014) 225 Cal.App.4th 215, 233, internal quotations omitted.) Further, that conduct must be directed at the plaintiff, or occur in the presence of a plaintiff of whom the defendant is aware, “and with knowledge of a substantial certainty that they would suffer severe emotional injury upon discovery of the facts.” (Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 974, 1002 [re groundwater contamination].)

Here, the undisputed facts show Plaintiff cannot establish any extreme and outrageous conduct by Moving Defendants (see Defs.’ Sep. St. Nos. 26-31 [and evidence cited therein]) or resulting severe and extreme emotional distress (see Defs.’ Sep. St. No. 53 [and evidence cited therein]).

Moving Defendants to give notice.

11 Quick Bridge TENTATIVE RULING: Funding, LLC vs. Overstreet For the reasons set forth below, the unopposed motion for summary Enterprises, judgment by Plaintiff Quick Bridge Funding, LLC against Defendants LLC Overstreet Enterprises, LLC d/b/a Mid-South Hobbies (“Seller”) and Aubrey Overstreet (“Guarantor”), on the first through second causes of action of Plaintiff’s complaint is GRANTED.

A. Legal Standard for Motion for Summary Judgment

Under Code of Civil Procedure § 437c(c), a summary judgment motion shall be granted if all the papers submitted show there is no triable issue as to any material fact and the moving party is entitled to judgment as a matter of law. A “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 . . . .” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) “A prima facie showing is one that is sufficient to support the position of the party in question.” (Id. at 851.) A plaintiff moving for summary judgment satisfies his or her initial burden by showing that each element of the cause of action in question has been “proved,” and hence that there is no defense thereto. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)

“Once the plaintiff ... has met that burden, the burden shifts to the defendant ... to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. The defendant ... may not rely upon the mere allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto.” (Code Civ. Proc. § 437c, subd. (p)(1).)

In determining whether the parties have met their respective burdens, “the court must ‘consider all of the evidence’ and ‘all’ of the ‘inferences’ reasonably drawn therefrom [citation], and must view such evidence [citations] and such inferences [citations], in the light most favorable to the opposing party.” (Aguilar, supra, 25 Cal.4th at