Alexander v. E Mortgage Capital, Inc.

In addition, if a plaintiff has pleaded several theories, the defendant has the burden of demonstrating there are no material facts requiring trial on any of them. (Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 889.) If a defendant fails to meet this initial burden, the plaintiff need not oppose the motion and the motion must be denied. (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 840.)

Once the moving party meets that burden, the burden shifts to the party opposing MSJ to show, by reference to specific

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facts, the existence of a triable issue as to that affirmative defense or cause of action. (Id.; Villacres v. ABM Industries, Inc. (2010) 189 Cal.App 4th 562, 575.) To meet this burden, the opposing party must present substantial and admissible evidence creating a triable issue. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 163.) Theoretical, imaginative, or speculative submissions are insufficient to stave off summary judgment. (Doe v. Salesian Society (2008) 159 Cal.App.4th 474, 481; Bushling v.

Fremont Med. Center (2004) 117 Cal.App.4th 493, 510.) .) “In some instances . . ., ‘evidence may be so lacking in probative value that it fails to raise any triable issue.’” (Whitmire v. Ingersoll-Rand Co. (2010) 184 Cal.App.4th 1078, 1083-1084, quoting Advanced Micro Devices, Inc. v. Great American Surplus Lines Ins. Co. (1988) 199 Cal.App.3d 791, 795.) “‘If the plaintiff is unable to meet her burden of proof regarding an essential element of her case, all other facts are rendered immaterial.’” (Saelzler v.

Advanced Group 400 (2001) 25 Cal.4th 763, 780, quoting Leslie G. v. Perry & Associates (1996) 43 Cal.App.4th 472, 482.)

In ruling on a motion for summary judgment, “the court must ‘consider all of the evidence’ and ‘all’ of the ‘inferences’ reasonably drawn therefrom, and must view such evidence and such inferences in the light most favorable to the opposing party.” (Aguilar, supra, 25 Cal.4th at p. 843, citations omitted.) Courts “‘construe the moving party's affidavits strictly, construe the opponent's affidavits liberally, and resolve doubts about the propriety of granting the motion in favor of the party opposing it.’” (Unilab Corp. v.

Angeles- IPA (2016) 244 Cal.App.4th 622, 636, quoting Seo v. All– Makes Overhead Doors (2002) 97 Cal.App.4th 1193, 1201– 1202.) A court may not make credibility determinations or weigh the evidence on a motion for summary judgment, and all evidentiary conflicts are to be resolved against the moving party. (McCabe v. American Honda Motor Corp. (2002) 100 Cal.App.4th 1111, 1119.) “The court . . . does not resolve issues of fact. The court seeks to find contradictions in the evidence, or inferences reasonably deducible from the evidence, which raise a triable issue of material fact.” (Johnson v.

United Cerebral Palsy, etc. (2009) 173 Cal.App.4th 740, 754, citation omitted.) “[S]ummary judgment cannot be granted when the facts are susceptible [of] more than one reasonable inference . . .” (Rosas v. BASF Corp. (2015) 236 Cal.App.4th 1378, 1392.)

Issue 1: Hostile Work Environment

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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 plaintiff’s employment. (Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 130; see also Kelly-Zurian v. Wohl Shoe Co. (1994) 22 Cal.App.4th 397, 409: “‘When the workplace is permeated with discriminatory intimidation, ridicule and insult that is ‘ “ ‘sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment,’ ” ’ the law is violated.”).

“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.)

Gov. Code §12923 clarifies how the legislature intends laws prohibiting workplace harassment to be construed. Notably, Gov. Code §12923, subd. (b) provides that “[a] single incident of harassing conduct is sufficient to create a triable issue regarding the existence of a hostile work environment if the harassing conduct has unreasonably interfered with the plaintiff's work performance or created an intimidating, hostile, or offensive working environment.”

Defendant has failed to meet its initial burden on summary adjudication. To do so, Defendant must address every theory of liability pleaded and demonstrate there are no material issues of fact in dispute as to any of them. Defendant’s motion fails to address the allegations that Yvonne Ramos would repeatedly touched Plaintiff in what he perceived to be a sexually offensive manner while he was working in the office. Namely, Defendant’s SSUMF No. 37 states “Plaintiff’s sexual harassment claim includes allegations of public displays of affection between Yvonne Ramos and Maximus Flore and incidental touching of his shoulder or back by Yvonne Ramos.”

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This does not sufficiently negate these allegations as a basis for Plaintiff’s sexual harassment cause of action. Summary Adjudication is DENIED as to Issue 1.

Issues 2, 4, and 5: Retaliation, Lab. Code §1102.5 Retaliation, and Wrongful Termination

Defendant has met its initial burden as to Issues 2, 4 and 5 by establishing a legitimate, non-retaliatory basis for Plaintiff’s termination. (McGrory v. Applied Signal Technology, Inc. (2013) 212 Cal. App. 4th 1510, 1524; Loggins v. Kaiser Permanente Intern. (2007) 151 Cal.App.4th 1102, 1108-09; Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042; Vatalaro v. County of Sacramento (2022) 79 Cal.App.5th 367, 387–388 [affirming summary judgment in favor of employer where it met its burden under section 1102.6 to make a same decision showing].)

Namely, Defendant has shown that Plaintiff was terminated due to Plaintiff breaching the independent contractor agreement by performing unlicensed loan origination work in violation of the agreement.

Plaintiff must oppose the motion by producing “substantial responsive evidence that the employer’s showing was untrue or pretextual.” (Hersant v. California Dept. of Social Services (1997) 57 Cal.App.4th 997, 1004-1005. [internal quotations omitted].) It is not sufficient to overcome summary judgment for a plaintiff to offer evidence that constitutes only “suspicions of improper motives ... based on conjecture and speculation.” (Kerr v. Rose (1990) 216 Cal.App.3d 1551, 1564.)

Plaintiff has met this minimal burden by presenting evidence that his termination was motivated by Plaintiff’s complaints concerning sexually charged working conditions. (See Plaintiff’s Response to Defendant’s Separate Statement 18, 23-24, 26.) Accordingly, Summary Adjudication is DENIED as to Issues 2, 4, and 5.

Issues 3 and 9: Failure to Prevent and UCL

Defendant argues that summary adjudication of Issue 3 is warranted by virtue of its motion with respect to the Retaliation and Harassment claims and that the claim for failure to prevent is derivative of the harassment and retaliation claims. Since summary adjudication of Issues 1 and 2 has been denied, there is no ground to grant summary

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adjudication of this cause of action. Accordingly, the Motion for Summary Adjudication is DENIED as to Issue 3.

The same reasoning applies to Issue 9. Defendant’s argument in support of summary adjudication of this cause of action is that the UCL claim is derivative of Plaintiff’s labor code, FEHA and contract causes of action. Since summary adjudication of the FEHA claim is denied, then there is no basis to grant summary adjudication of this derivative cause of action. Accordingly, the Motion for Summary Adjudication is DENIED as to Issue 9.

Issues 6-8: Wage and Hour Claims

Defendant met its initial burden on summary adjudication by showing that Plaintiff did not have an employee-employer relationship with Defendant. (SSUMF Nos. 3-8.)

Notwithstanding the contractual provision that asserts the applicability of Bus. & Prof. Code §10032, subd. (b) to the relationship between Plaintiff and Defendant, the court finds that this provision does not apply, as Defendant has not established that Plaintiff was contracted as a licensed real estate salesperson.

Plaintiff has sufficiently raised a triable issue of fact as to whether he was an employee or an independent contractor. Plaintiff has shown that Defendant provided the instrumentalities for him to conduct his work, required Plaintiff to work in the office, and the working relationship with Plaintiff involved Plaintiff reporting directly to Ramos, who controlled the tasks Plaintiff worked on in the scope of his employment with Defendant. (See Plaintiff’s Additional Material Facts 53- 69; see also S. G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341, 351.)

Defendant alternatively argues that even if there was an employer-employee relationship, they have complied with the requirements of the labor code. But Defendant’s separate statement does not establish the compliance with affirmative evidence or a showing that Plaintiff does not have evidence, nor could reasonably obtain evidence to support his wage and hour claims.

Accordingly, Summary Adjudication is DENIED as to Issues 6, 7 and 8.

Issue 10: Slander and Libel

Slander and Libel are both forms of defamation. The elements of a claim of defamation are: “(1) a publication that is (2)

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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.)

Defendant has met its initial burden by showing that Plaintiff has admitted in discovery to not having any knowledge of any specific defamatory statement he attributes to Defendant or Ramos. (See SSUMF Nos. 35-36.) Plaintiff attempts to raise a disputed issue of fact by submitting the declaration of Molly Ryan, who attests to having been told by Ramos that Plaintiff’s employment was terminated due to his misconduct. Even if Defendant’s objections to this evidence are overruled, Plaintiff does not make a sufficient showing to raise a triable issue of fact as to the falsity or defamatory nature of the publication.

Plaintiff submits no substantial evidence that any statement made about him to former clients was false and/or defamatory. Rather, Plaintiff’s own separate statement merely purports to show these are statements “a jury could find false.” Accordingly, Summary Adjudication is GRANTED as to Issue 10.

Issue 11: Breach of Contract

The elements of a claim for breach of contract are (1) the existence of a contract; (2) the plaintiff’s performance or excuse from performance of the contract; (3) the defendant’s breach; and (4) resulting damages to the plaintiff. (See Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.)

Defendant has met its initial burden by showing (1) the only valid contract between the parties was the independent contractor agreement and that Defendant did not breach the terms of that agreement. (SSUMF 1, 3, 9, 16, 17); (2) the commissions Plaintiff alleges he is owed under the contract are expressly not permitted by the terms of the contract (SSUMF 9-10, 14-20, 27-28),; and (3) Plaintiff’s agreement with Yvonne Ramos to be an “assistant” to process loans he is not licensed for did not involve Defendant as a contracting party (SSUMF 10, 11, 12, 13, 19, 20, 27.)

Plaintiff fails to raise a genuine issue of disputed fact that would necessitate a trial of the breach of contract claims. It is undisputed that to the extent Plaintiff had made any agreement with Yvonne Ramos to serve as her assistant, any such arrangement would have to be reduced to writing and approved by Defendant in order for such an arrangement to become part of the contract between Plaintiff and Defendant. (Defendant’s Appendix, p. 16.) Accordingly, the Motion is GRANTED as to Issue 11.

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Defendant shall provide notice of this ruling.

60. Vazquez v. Defendant Volkswagen Group of America, Inc. Motion for Volkswagen Summary Judgement or, in the alternative, Summary Group of Adjudication of Issues is DENIED in its entirety. America, Plaintiff’s Evidentiary Objections to the Declaration of Laura C. Inc. Pratt – Objection No. 1 is SUSTAINED. 2025- Plaintiff’s Evidentiary Objections to the Declaration of 01459449 Branndon Beauchamp – Objection Nos. 1-3, 6-10 are OVERRULED. Objection Nos. 5 and 11 are SUSTAINED.

Defendant’s Evidentiary Objections to the Declaration of Daniel Vazquez – Objection Nos. 1-9 are OVERRULED.

Defendant’s Evidentiary Objections to the Declaration of Donald Mahnke – Objection Nos. 1-21, 44, 46-51 are SUSTAINED. Objections Nos. 22-43, 45 are OVERRULED.

VW seeks summary judgment on all causes of action of Plaintiff Daniel Vazquez’s Complaint on the grounds that it complied with the Song-Beverly Act by promptly offering to repurchase the Subject Vehicle.

Promptly Repurchase or Replace

To prevail on his Song-Beverly Consumer Warranty Act claims, Plaintiff must prove that (1) Plaintiff’s vehicle had defects that affected the use, value, or safety of the vehicle that VW could not repair to conform to the applicable warranty after a reasonable number of repair attempts, and (2) assuming Plaintiff can prove it was not repaired after a reasonable number of attempts, VW did not promptly offer to repurchase or replace Plaintiff’s vehicle. (Cal. Civ. Code § 1793.2 (d)(2); Gonzalez v. Ford Motor Co., No. LACV1900652PAASX, 2019 WL 6122554, at *5 (C.D. Cal. Oct. 23, 2019).)

Section 1793.2, subdivision (d)(2) sets forth the manufacturer’s affirmative obligation to “promptly” repurchase or replace a defective vehicle it is unable to conform to the applicable express warranty. “There is no set timeframe for an offer to be ‘prompt.’ However, courts have found offers to be prompt where 40 to 50 days elapsed between the consumers’ initial requests for repurchase/replacement and the manufacturers’ offers.” (Carver v. Volkswagen Group of America, Inc. (2024) 107 Cal.App.5th 864, 879-880.)

VW contends that summary judgment is appropriate on the entire complaint because it promptly offered to repurchase the Subject Vehicle. On January 13, 2025, VW received