Clifton v. Flores, et al.

In the case at bench, defendants iMarket Global, Inc. and IMG Corporation move for summary judgment of plaintiff’s complaint or, in the alternative, summary adjudication of each of plaintiff’s causes of action. The operative First Amended Complaint alleges causes of action for (1) Harassment Based on Sex – Hostile Work Environment; (2) Sexual Harassment – Quid Pro Quo; (3) Failure to Prevent Harassment; (4) Retaliation; (5)Negligent Supervision, Training, Hiring, and Retention; (6) Wrongful Termination; (7) Failure to Pay Earned Wages (Labor Code §201); (8) Waiting Time Penalties (Labor Code §203); (9) Failure to Reimburse Business Expenses (Labor Code §2802).

As an initial matter, California Rules of Court, rule 3.1350(b) provides in relevant part [emphasis added]: “If summary adjudication is sought, whether separately or as an alternative to the motion for summary judgment, the specific cause of action, affirmative defense, claims for damages, or issues of duty must be stated specifically in the notice of

motion and be repeated, verbatim, in the separate statement of undisputed material facts.” (Emphasis added.)

In the case at bench, the moving parties’ separate statement does not comply with the requirement that the notice of motion and separate statement include the same stated issues for adjudication. The notice of motion lists every cause of action. The separate statement begins with “Issue 1: Material Facts Relating to the Motion for Summary Adjudication of The Seventh Cause of Action for Failure to Pay Earned Wages under Labor Code section201” and continues out of order with Issue 2 as the eighth cause of action and Issue 3 as the ninth cause of action.

Beginning at Issue 4 the separate statement corresponds to the first cause of action and continued through Issue 7 with the forth cause of action. The separate statement omits the fifth and sixth causes of action for negligent supervision and wrongful termination. Additionally, the separate statement is limited to those material facts as they relate to a specific “issue” and does not have a set of material facts directed toward the motion for summary judgment.

Failure to comply with the separate statement requirement constitutes ground for denial of the motion, in the court's discretion. (Code Civ. Proc., § 437c, subd. (b)(1); Reeves v. Safeway Stores, Inc. (2004) 121 Cal.App.4th 95, 106 [instead of stating key events as “undisputed facts,” defendant stated what witnesses said about those events]; Teselle v. McLoughlin (2009) 173 Cal.App.4th 156, 160, [separate statement failed to address allegations of material fact in complaint].)

Although the court will not deny the motion for the failure to match the issues for adjudication in the separate statement with the notice of motion, the court will limit the scope of the motion to those issues addressed in the separate statement. “This is the Golden Rule of Summary Adjudication: If it is not set forth in the separate statement, it does not exist.” (United Community Church v. Garcin (1991) 231 Cal.App.3d 327, 337 [superseded by statute on other grounds]; Allen v. Smith (2002) 94 Cal.App.4th 1270, 1282; Teselle v. McLoughlin (2009) 173 Cal.App.4th 156, 173 [failure of defendant's separate statement to address material allegation in complaint was “fatal flaw”].)

As a result, the motion for summary judgment is denied, as the separate statement fails to address the Fifth Cause of Action for Negligent Supervision, Training, Hiring, and Retention and the Sixth Cause of Action for Wrongful Termination.

Summary Adjudication of Issues 1, 2, and 3: Labor Code Violations

Defendants premise summary adjudication of plaintiff’s seventh, eighth and ninth causes of action alleging violations of the Labor Code on plaintiff being classified as an independent contractor, not an employee. Plaintiff disputes that her day to day work was unsupervised and that she was free to set her own work schedule. (UMF No. 4.) Plaintiff offers evidence of her having been disciplined for complaints regarding her sales conduct and her declaration attesting to attending morning meetings on a set schedule, following set procedures in interacting with customers and completing sales and following the directions of SFE personnel over the phone on how to proceed with the sales process and completing enrollments, and receiving direction from Thomas Flores for direction of her day-to-day activities. (Clark Decl., Exs. 2 [Clifton Decl.], 5, 9.)

The determination of employee or independent contractor status is one of fact and only becomes a question of law in the absence of evidence disputes. (S. G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341, 349.) Plaintiff has demonstrated there are disputes as to the defendants’ control of her schedule and dayto-day activities, and, as such, her status as an independent contractor cannot be determined as a matter of law. Having demonstrated a dispute of material fact as to whether plaintiff is properly classified as an independent contractor, the motion for summary adjudication of Issues 1, 2 and 3 is denied.

Although defendants argue in the alternative that her designation as an outside sales person also supports they are not liable for Labor Code violations premised on her status as an employee, the plaintiff’s additional material facts that regular scheduled meetings every morning were uncompensated, nonproductive time is sufficient to preclude summary adjudication of the Labor Code claims. (AMF No. 54; See Vaquero v. Stoneledge Furniture LLC (2017) 9 Cal.App.5th 98, 110-111.)

Summary Adjudication of Issues 4, 5, 6, and 7: FEHA Claims

Defendants’ arguments as to why plaintiff’s claims for harassment and retaliation share a common material fact: each is predicated on Thomas Flores not being a manager or supervisor of plaintiff as alleged in the First Amended Complaint. This is not addressed in the separate statement and would appear to be a necessary fact to establish defendants are subject to the requirements for nonsupervisory coworker harassment for plaintiff’s hostile work environment claim, that no work opportunity was conditioned on sexual favors for purposes of the quid pro quo harassment claim, and that Flores had no authority to terminate or discipline plaintiff for purposes of her retaliation claim.

Further, defendants’ arguments that the duration of the alleged “leering and shunning” was too short and nonpervasive to be considered a hostile work environment is not supported by material facts as to the duration of the alleged conduct in the separate statement.

Defendants additionally argue there was no adverse employment action to support the retaliation claim. This is not supported by the evidence submitted in support of defendants’ separate statement at UMF No.

15. The fact to be supported is that plaintiff’s “engagement with IMG ended,” appearing to support the argument that there was no adverse employment action for plaintiff’s retaliation claim. However, the evidence in support of this fact is limited to citation to the First Amended Complaint alleging plaintiff’s employment was terminated. (See UMF 15, and citation to FAC, ¶ 22.) Termination is considered an adverse employment action. (Light v. Department of Parks & Recreation (2017) 14 Cal.App.5th 75, 91.) Thus, defendants’ argument is not supported by the facts within the separate statement.

Based on the failure of the separate statement to include all necessary facts to support the moving defendants’ arguments for summary adjudication of Issues 4, 5, and 7, the court finds defendants have not met their burden. (Code Civ. Proc., § 437c, subd. (p)(2).) Summary adjudication of Issues 4, 5, and 7 is denied.

With respect to Issue 6, defendants argue summary adjudication of the cause of action for failure to prevent harassment fails because the underlying harassment claims 5

fail. As defendants’ summary adjudication of these issues failed, so too must the adjudication of Issue 6, relying entirely on the adjudication of Issues 4 and 5 and the same deficient separate statement.

Negligent Supervision, Training, Hiring, Retention and Wrongful Termination Claims

Although identified in the notice of motion as subject to summary adjudication, these causes of action are not among the issues identified in the separate statement. Accordingly, summary adjudication is denied as to these causes of action.

Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Procedure section 1019.5, subdivision (a), no further written order is necessary. The minute order adopting this tentative ruling will serve as the order of the court and service by the clerk will constitute notice of the order.

Tentative Ruling

Issued By: SMC on July 27, 2026. (Judge’s initials) (Date)

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