Michelle Campos v. AUTOZONERS, LLC et al.

SUPERIOR COURT, STATE OF CALIFORNIA COUNTY OF SANTA CLARA Department 10 Honorable Jeffrey B. El-Hajj Blanca Than, Courtroom Clerk 191 North First Street, San Jose, CA 95113 Telephone: 408-882-2210

DATE: August 11, 2026 TIME: 9:00 A.M. / 9:01 A.M. To contest the ruling, you must call (408) 808-6856 before 4:00 P.M. You must also contact the other side before 4:00 P.M. to inform them that you plan to contest the ruling. (Cal. Rules of Court, rule 3.1308(a)(1); Local Rule 8.D.)

**Please specify the issue to be contested when calling the Court and counsel**

9:00 A.M. LINE # CASE # CASE TITLE RULING Line 1 23CV417765 Lynley Hogan v. Plaintiff’s motion to strike defendant Brian Bernasconi’s answer to the Brian Bernasconi second amended answer. At plaintiff’s request, the motion is et al. WITHDRAWN and the matter is OFF CALENDAR. Line 2 23CV417765 Lynley Hogan v. Plaintiff’s motion to compel further responses to discovery. At plaintiff’s Brian Bernasconi request, the motion is WITHDRAWN and the matter is OFF CALENDAR. et al. Line 3 23CV423619 Timothy Young Defendant’s demurrer to the first amended complaint.

CONTINUED by ex v. BMW of parte order to August 20, 2026, at 9:00 a.m. in Department 10. Plaintiff’s North America, counsel must be prepared at the continued hearing to show cause why he LLC should not be sanctioned for his repeated failure to comply with filing deadlines. Line 4 24CV433441 Michelle Click LINE 4 or scroll down for ruling. Campos v. AUTOZONERS, LLC et al.

SUPERIOR COURT, STATE OF CALIFORNIA COUNTY OF SANTA CLARA Department 10 Honorable Jeffrey B. El-Hajj Blanca Than, Courtroom Clerk 191 North First Street, San Jose, CA 95113 Telephone: 408-882-2210

DATE: August 11, 2026 TIME: 9:00 A.M. / 9:01 A.M. To contest the ruling, you must call (408) 808-6856 before 4:00 P.M. You must also contact the other side before 4:00 P.M. to inform them that you plan to contest the ruling. (Cal. Rules of Court, rule 3.1308(a)(1); Local Rule 8.D.)

**Please specify the issue to be contested when calling the Court and counsel**

GRANTED IN PART: the court awards attorney fees in the amount of $16,406.10 ($21,729 minus $3,500 equals $18,229, and then reduced by 10 percent). Plaintiff is also awarded its costs of $712.94. Defendant forfeited any challenge to costs by not filing a motion to tax costs. (Cal. Rules of Court, rule 3.1700(b)(1).) The court will prepare the order. Line 7 25CV457236 Harold Davis et Click LINE 7 or scroll down for ruling. al. v. David Krause et al. Line 8 25CV458303 Jennifer Harris v. Click LINE 8 or scroll down for ruling. FCA US, LLC et al.

- oo0oo - 9:01 A.M. LINE # CASE # CASE TITLE RULING Line 1 2015-1-CV- Vishal Gobhil et al. Order of examination: parties to appear. 288617 v. IDC Technologies, Inc. (“IDC”) et al. Line 2 2015-1-CV- Vishal Gobhil et al. Order of examination: parties to appear. 288617 v. IDC Technologies, Inc. (“IDC”) et al. Line 3 22CV403398 Ha Thanh Nguyen Plaintiff’s counsel’s motion to withdraw as attorney of record: parties to v. Kelly La appear.

- oo0oo -

Calendar Line 4 Case Name: Michelle Campos v. Autozoners, LLC et al. Case No.: 24CV433441

This is an action for employment discrimination and harassment brought by plaintiff Michelle Campos (Plaintiff) against defendants Autozoners, LLC (Autozoners), her former employer; Robert Sanchez (Sanchez), a former coworker who did not supervise Plaintiff; and Doe defendants.

The original and still operative complaint, filed in March 2024, alleges nine causes of action: (1) sexual orientation discrimination in violation of the Fair Employment and Housing Act (FEHA) (against Autozoners and Does); (2) sexual orientation harassment in violation of FEHA (against all defendants); (3) failure to prevent discrimination or harassment in violation of FEHA (against Autozoners and Does); (4) retaliation in violation of FEHA (against Autozoners and Does); (5) constructive wrongful termination (against Autozoners and Does); (6) failure to provide rest breaks (against Autozoners and Does); (7) failure to pay wages upon termination (against Autozoners and Does); waiting time penalties (against Autozoners and Does); (8) failure to issue accurate wage statements (against Autozoners and Does); and (9) unlawful business practices (against Autozoners and Does).

There are no exhibits attached to the complaint. The complaint alleges that Plaintiff resigned in December 2023. (Complaint, ¶¶ 17, 71.) The complaint was amended to state Autozoners’ true name in March 2025. Autozoners filed an amended answer in July 2025.

At issue is Autozoners’ motion for summary judgment, opposed by Plaintiff. For the reasons stated here, the court will grant the motion.

GENERAL STANDARDS FOR SUMMARY JUDGMENT

The pleadings limit the issues presented for summary judgment or summary adjudication. Such a motion may not be granted or denied based on issues not raised by the pleadings. (Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1258 (Laabs); Nieto v. Blue Shield of Calif. Life & Health Ins. (2010) 181 Cal.App.4th 60, 73 (Nieto).) The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (Aguilar).)

A motion for summary judgment or adjudication will be granted only if it completely disposes of an entire cause of action, an affirmative defense, a claim for damages, or an “issue of duty.” (Code Civ. Proc., § 437c, subd. (f)(1); McCaskey v. California State Auto. Ass’n (2010) 189 Cal.App.4th 947, 975 (McCaskey); Palm Spring Villas II Homeowners Association, Inc. v. Parth (2016) 248 Cal.App.4th 268, 288.)

“A defendant seeking summary judgment must show that at least one element of the plaintiff’s cause of action cannot be established, or that there is a complete defense to the cause of action.” “The burden then shifts to the plaintiff to show there is a triable issue of material fact on that issue.” (Alex R. Thomas & Co. v. Mutual Service Casualty Ins. Co. (2002) 98 Cal.App.4th 66, 72; internal citations omitted.) “There is a triable issue of material fact if, and only if, the evidence would allow a reasonable finder of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar, supra, 25 Cal.4th at p. 850.) While the same standards of admissibility govern both sides’ supporting evidence, the opposition evidence is liberally construed while the moving 6

party’s evidence is strictly construed. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768.) The evidence must be liberally construed in support of the opposing party, resolving any doubts in favor of that party. (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037 (Yanowitz).)

A reply “shall not include any new evidentiary matter, additional material facts, or separate statement submitted with the reply and not presented in the moving papers or opposing papers.” (Code Civ. Proc., § 437c, subd. (b)(4); Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537-38; Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 252 (Nazir).)

Summary Judgment in FEHA cases

Special rules govern the allocation of the burden of proof on motions for summary judgment in wrongful termination and employment discrimination cases, under both federal and state law. State courts follow the approach taken by federal courts in these cases. (Moore v. Regents of Univ. of Calif. (2016) 248 Cal.App.4th 216, 233.) Because direct evidence of discrimination is seldom available, courts use a system of shifting burdens as an aid to the presentation and resolution of such cases both at trial and on a motion for summary judgment. (Guz v.

Bechtel Nat’l, Inc. (2000) 24 Cal.4th 317, 354-355 (Guz).) “California has adopted a three-stage burden-shifting test established by the United States Supreme Court for trying employment discrimination claims that are based on the disparate treatment theory. [Citations.] Under this ‘McDonnell Douglas test,’ (1) the plaintiff must establish a prima facie case of discrimination; (2) if the plaintiff is successful, the employer must offer a legitimate nondiscriminatory reason for its actions; and (3) if the employer produces evidence on that point, the plaintiff must show that employer’s reason was a pretext for discrimination.” (Trop v.

Sony Pictures Entertainment, Inc. (2005) 129 Cal.App.4th 1133, 1144; see also King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 433.)

When the employer is the moving party, the initial burden rests with the employer to show that no unlawful discrimination occurred. (Code Civ. Proc., § 437c, subd. (p)(2); Guz, supra at pp. 354-355; McGrory v. Applied Signal Technology, Inc. (2013) 212 Cal.App.4th 1510, 1523 (McGrory) [employee has no obligation to produce evidence until defendant “has established either the existence of a complete defense or the absence of an essential element of plaintiff’s claim.”]) The employer may do this by presenting admissible evidence either negating an essential element of the employee’s claim, or showing some legitimate, nondiscriminatory reason for the action taken against the employee. (Caldwell v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 202-203.)

“Although an employee’s evidence submitted in opposition to an employer’s motion for summary judgment is construed liberally, it ‘remains subject to careful scrutiny.’ ” (Featherstone v. Southern California Permanente Medical Group (2017) 10 Cal.App.5th 1150, 1159.) “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.’ ” “The employee’s evidence must relate to the motivation of the decision makers and prove, by nonspeculative evidence, ‘an actual causal link between prohibited motivation and termination.’ ” (Ibid.) A “plaintiff’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; see also Doe v. Dept. of Corrections & Rehabilitation (2019) 43 Cal.App.5th 721, 733.)

DISCUSSION

Autozoners moves for summary judgment on the basis that each cause of action “fails to present triable issues of fact and lacks sufficient evidence to warrant a trial.” (Notice of Motion and Motion at pp. 1:27-2:1.) In the alternative, it seeks summary adjudication of each cause of action. Autozoners addresses the second cause of action first.

Second Cause of Action: FEHA Harassment

The second cause of action consists largely of boilerplate allegations; many made on information and belief only. (See complaint at ¶¶ 36-46.) The only person identified as harassing Plaintiff in the complaint’s general allegations is defendant Sanchez, a former coworker. (Id. at ¶¶ 12-14, 16.)

FEHA prohibits employment harassment based on “race, religious creed, national origin,” and other protected categories including “sexual orientation.” (Gov. Code, § 12940, subd. (j)(1); Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 129 (Avis).) “To establish a prima facie case of [harassment based on] a hostile work environment, [the plaintiff] must show that (1) [plaintiff] is a member of a protected class; (2) [plaintiff] was subjected to unwelcome harassment; (3) the harassment was based on [plaintiff’s] protected status; (4) the harassment unreasonably interfered with [plaintiff’s] work performance by creating an intimidating, hostile, or offensive work environment; and (5) defendants are liable for the harassment.” (Ortiz v. Dameron Hospital Assn. (2019) 37 Cal.App.5th 568, 581 (Ortiz).)

Whether the conduct of alleged harassers was sufficiently severe or pervasive to create a hostile or abusive working environment depends on the totality of the circumstances. Those circumstances may include 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. Common sense, and an appropriate sensibility to social context, will enable courts and juries to distinguish between simple teasing or roughhousing and conduct that a reasonable person in the plaintiff's position would find severely hostile or abusive.

The plaintiff must prove that the defendant’s conduct would have interfered with a reasonable employee’s work performance and would have seriously affected the psychological well-being of a reasonable employee and that he or she was actually offended. (Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 870 (Serri).)

The Legislature altered this analysis in 2019 by declaring 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.” (Gov. Code, § 12923, subd. (b).) “The existence of a hostile work environment depends upon the totality of the circumstances and a discriminatory remark, even if not made directly in the context of an employment decision or uttered by a nondecisionmaker, may be relevant, circumstantial evidence of discrimination. In that regard, the Legislature affirms the decision 8

in Reid v. Google, Inc. (2010) 50 Cal.4th 512 ... in its rejection of the ‘stray remarks doctrine.’ ” (Id., § 12923, subd. (c).) “Harassment cases are rarely appropriate for disposition on summary judgment. In that regard, the Legislature affirms the decision in [Nazir, supra] and its observation that hostile working environment cases involve issues ‘not determinable on paper.’ ” (Id., § 12923, subd. (e).)

An employer is not liable for harassment by a non-supervisorial coworker if the employer takes “prompt, reasonable and efficacious remedial action.” (Mathieu v. Norrell Corp. (2004) 115 Cal.App.4th 1174, 1184 (Mathieu), citing Gov. Code, § 12940, subd. (j); see also Bradley v. California Dept. of Corrections and Rehabilitation (2008) 158 Cal.App.4th 1612, 1613 (Bradley) [“[W]hen harassment is by a non-supervisory employee, an employer’s liability is predicated not on the conduct itself, but on the employer’s response once it learns of the conduct”].) “The most significant immediate measure an employer can take in response to a sexual harassment complaint is to launch a prompt investigation to determine whether the complaint is justified.” (Swenson v.

Potter (9th Cir. 2001) 271 F.3d 1184, 1193 (Swenson); Mathieu, supra, at p. 1185.) To fulfill this function, the investigation need not be “perfect”; it is enough that the investigation is a “reasonable” one that is neither “rigged to reach a predetermined conclusion” nor “otherwise conducted in bad faith.” (Swenson, at pp. 1197, 1193, 1196.)

Autozoners has submitted admissible evidence, including: the declaration of Autozoners’ Regional Human Resources Manager Lisa Whitlow (part of Autozoners’ index of evidence); Plaintiff’s signed interview statements dated December 13 and 14, 2023, including a signed statement that she believed she was treated fairly by Whitlow (exhibits 1 and 2 to the index); Sanchez’s signed interview statement dated December 14, 2023 (exhibit 3 to the index); Plaintiff’s deposition testimony (exhibit 14 to the index, authenticated by the declaration of Michael Hoffman); a copy of a corrective action review form (exhibit 4 to the index); and Sanchez’s timecard report (exhibit 13 to the index, authenticated by the declaration of Allen Clark).

That evidence shows that after the alleged harassment of Plaintiff by defendant Sanchez on two occasions on or around December 11, District Manager Guillermo Cobarrubias came to the store on December 11 in response to Plaintiff’s phone call. Whitlow came to the store on December 13 and 14. Whitlow interviewed Plaintiff, Sanchez, and three other employees, and reviewed videotape footage as part of her investigation of the incident. The videotape did not confirm Plaintiff’s assertion that Sanchez had held a knife in a threatening manner.

Whitlow told Plaintiff that she could work at another store location until the investigation was concluded. Plaintiff declined the offer. Sanchez was suspended with pay after he was interviewed by Whitlow on December 14. When the investigation concluded, Whitlow recommended that Sanchez be terminated. Sanchez was terminated shortly thereafter. The foregoing evidence is sufficient to meet Autozoners’ initial burden to show that it took “prompt, reasonable and efficacious remedial action.” (Mathieu, supra, 115 Cal.App.4th at p. 1184.)

When the burden shifts, Plaintiff’s opposition does not raise any triable issue of material fact. The opposition is supported by two declarations, one from Plaintiff’s counsel Andrew Morris (authenticating attached exhibits A through D), and one from Plaintiff. The opposition argues that District Manager Cobarrubias failed to take immediate action against Sanchez on December 11, 2023, and merely alerted human resources of the alleged incidents. But it does not raise a triable issue as to whether Autozoners’ action was sufficiently prompt. An employer’s investigation need not be “perfect”; it is enough that the investigation is a 9

“reasonable” one that is neither “rigged to reach a pre-determined conclusion” nor “otherwise conducted in bad faith.” (Swenson, supra, 271 F.3d at pp. 1197, 1193, 1196.) The investigation began on December 13, shortly after Autozoners was notified.

Plaintiff’s deposition testimony (exhibit A to the Morris decl. at p. 152:13-23) that she felt she was treated unfairly by Whitlow during the interview is contradicted by her signed statement at the time of the interview (Autozoners exhibit 1) and by her own later deposition testimony stating that she agreed that Sanchez should have an opportunity to tell his version of events. Plaintiff testified that it was fair for Whitlow to ask her about what Sanchez said about the incidents. (Ex. A at p. 158:7-13.)

Summary adjudication of the second cause of action for harassment as brought against Autozoners is granted.

First, Fourth, and Fifth Causes of Action: No Adverse Employment Action

Autozoners argues that Plaintiff’s claims for discrimination, retaliation, and wrongful constructive discharge all fail for lack of an essential element––an adverse employment action—because Plaintiff was not fired, transferred, or disciplined, and instead resigned voluntarily.

“The elements for a discrimination claim are: that (1) [the plaintiff] was a member of a protected class, (2) he was qualified for the position he sought or was performing competently in the position he held, (3) he suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some other circumstance suggests discriminatory motive.” (Guz, supra, 24 Cal.4th at p. 355.) “[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 [exists] between the protected activity and the employer’s action.” (Yanowitz, supra, 36 Cal.4th at 1042.) “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.” (Yau v. Santa Margarita Ford, Inc. (2014) 229 Cal.App.4th 144, 154.)

Under FEHA, in order to constitute an “adverse employment action,” the subject action must materially affect the terms, conditions, or privileges of employment. (Yanowitz, supra, 36 Cal.4th at p. 1050–1052.) An adverse employment action is not limited to “ultimate” employment acts such as a specific hiring, firing, demotion, or failure to promote decision. (Akers v. City of San Diego (2002) 95 Cal.App.4th 1441, 1455.) However, the act must result in a substantial adverse change in order to be actionable. Changes that are merely contrary to the employee’s interests or not to the employee’s liking are insufficient. (Id.) Further, a mere oral or written criticism of an employee or a transfer into a comparable position does not meet the definition of an adverse employment action under the FEHA. (Id. at p. 1457.)

The plaintiff “must demonstrate that he or she has been subjected to an adverse employment action that materially affects the terms, conditions, or privileges of employment.” (McRae v. Department of Corrections & Rehabilitation (2006) 142 Cal.App.4th 377, 386 (McRae).) “Minor or relatively trivial adverse actions by employers or fellow employees that, 10

from an objective perspective, are reasonably likely to do no more than anger or upset an employee do not materially affect the terms or conditions of employment.” (Patten v. Grant Joint Union High School Dist. (2005) 134 Cal.App.4th 1378, 1387 (Patten), disapproved on another ground in Lawson v. PPG Architectural Finishes, Inc. (2022) 12 Cal.5th 703, 718, fn. 2 (Lawson); see also McRae, supra, 142 Cal.App.4th at p. 386 [that an employee is displeased by an employer’s action does not elevate that act to a materially adverse employment action].)

This requirement “ ‘ “guards against both ‘judicial micromanagement of business practices’ [citation] and frivolous suits over insignificant slights.” ’ ” (McRae, at p. 387.) “ ‘Absent this threshold showing, courts will be thrust into the role of personnel officers, becoming entangled in every conceivable form of employee job dissatisfaction.’ ” (Ibid.)

The complaint acknowledges that Plaintiff resigned rather than being terminated. The complaint alleges this was a constructive termination, and it is the only adverse employment action by Autozoners that is alleged in the complaint. A constructive termination can serve as an adverse employment action. (St. Myers v. Dignity Health (2019) 44 Cal.App.5th 301, 315 [“Constructive discharge, like actual discharge, is a materially adverse employment action.”].)

“Constructive discharge occurs when the employer’s conduct effectively forces an employee to resign. Although the employee may say, ‘I quit,’ the employment relationship is actually severed involuntarily by the employer’s acts, against the employee’s will. As a result, a constructive discharge is legally regarded as a firing rather than a resignation.” (Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1244-1245 (Turner).) “In order to establish a constructive discharge, an employee must plead and prove, by the usual preponderance of the evidence standard, that the employer either intentionally created or knowingly permitted working conditions that were so intolerable or aggravated at the time of the employee’s resignation that a reasonable employer would realize that a reasonable person in the employee’s position would be compelled to resign.” (Turner, supra, 7 Cal.4th at p. 1251.) “The conditions giving rise to the resignation must be sufficiently extraordinary and egregious to overcome the normal motivation of a competent, diligent, and reasonable employee to remain on the job to earn a livelihood and to serve his or her employer.

The proper focus is on whether the resignation was coerced, not whether it was simply one rational option for the employee.” (Turner, supra, 7 Cal.4th at p. 1246.) “In order to amount to a constructive discharge, adverse working conditions must be unusually ‘aggravated’ or amount to a ‘continuous pattern’ before the situation will be deemed intolerable.” (Id. at p. 1247.) The essence of the test is whether, under the circumstances, the working conditions are so unusually adverse that a reasonable employee in plaintiff’s position would have felt compelled to resign. (Ibid.) “It is the working conditions themselves—not the plaintiff’s subjective reaction to them—that are the sine qua non of a constructive discharge.” (Simers v.

Los Angeles Times Communications LLC (2018) 18 Cal.App.5th 1248, 1274.)

The complaint alleges that Plaintiff’s workplace became “hostile, offensive and/or abusive” because of “Defendants’ discrimination and/or pervasive harassment of Plaintiff due to her gender/sex/sexual orientation.” (Complaint, at ¶ 17.) It further alleges that “Defendant was substantially motivated to constructively discharge Plaintiff because of her sexual orientation.” (Id. at ¶ 32.) As discussed above, Autozoners has established that it did not harass Plaintiff, it terminated Sanchez after conducting a prompt and reasonable investigation, and it is not liable for defendant Sanchez’s harassment.

The complaint alleges that “Defendants” committed retaliation by “ignoring Plaintiff’s complaints and constructively and terminating Plaintiff’s employment specifically due to her complaints and her sex, gender, or sexual identity.” (Id. at ¶ 62.) But Autozoners has demonstrated that it did not ignore Plaintiff’s complaints regarding Sanchez.

The fifth cause of action for constructive wrongful termination consists largely of boilerplate allegations. (Id, at ¶¶ 68-76.) It makes no mention of wage and hour disputes (including sick leave). It instead alleges that “Defendants,” by “failing to investigate and prevent the harassment on the basis of sex/gender/sexual orientation committed against Plaintiff,” created a hostile and unsafe work environment. (Id. at ¶ 72.) Again, Autozoners has demonstrated that it did not fail to investigate Sanchez once Plaintiff complained about him.

Autozoners’ primary evidence in support of its argument on this point is the Whitlow declaration and Plaintiff’s deposition testimony. Whitlow declares that she received an email from Plaintiff late in the evening of December 21, 2023, inquiring about missing paid sick leave hours from her paycheck. Whitlow checked the accuracy of the paid sick days with the payroll department and contacted Plaintiff by phone before 8:00 a.m. the next day (December 22) to inform her there were no missing hours and that she had used all her sick leave.

Plaintiff hung up on her. Whitlow then contacted district manager Cobarrubias about those communications. Cobarrubias informed Whitlow that he had received a phone call from Plaintiff that morning stating that she was leaving the store and quitting. Plaintiff sent another email to Whitlow later in the morning of the 22nd stating that she was resigning “because of the hostile work environment. I have been discriminated against several times.” (Whitlow Decl. and Autozoners’ exhibits 5 and 6.) Plaintiff testified at her deposition that the entirety of her harassment claim was the two incidents involving defendant Sanchez in December 2023 that she informed Whitlow about. (Autozoners’ ex. 14 at pp. 103:20-105:22, 140:2-143:5.)

Plaintiff testified that she had no further contact with Sanchez after he was suspended, and that she never contacted the police about Sanchez. (Ex. 14 at p. 162:1-18.) When asked if she had any information that would contradict Whitlow’s statement to her prior to her resignation that had exhausted all of her paid sick days prior to December 2023, Plaintiff answered, “no.” When asked if she had any records of when she took sick days, Plaintiff testified that she did not. (Ex. 14 at p. 135:11-19.)

The foregoing evidence is sufficient to meet Autozoners’ initial burden to show that Plaintiff was not constructively discharged, the only adverse employment action alleged in the complaint. The evidence shows that Autozoners did not intentionally create or knowingly permit intolerable working conditions that would compel a reasonable employee to resign. The two incidents involving Sanchez in December 2023 were not so extraordinary and egregious to coerce Plaintiff’s resignation. Sanchez was promptly investigated and suspended.

He was absent from the workplace before Plaintiff resigned. Autozoners is not liable for Sanchez’s harassment. Even if the dispute over sick leave in December 2023 could be considered part of the constructive termination allegations, that dispute cannot be considered an adverse employment action, much less an intolerable working condition intentionally created or knowingly permitted by Autozoners. (Patten, supra, 134 Cal.App.4th at 1387; McRae, supra, 142 Cal.App.4th at 386.)

When the burden shifts, Plaintiff does not submit any evidence that creates a triable issue of material fact as to whether Autozoners “intentionally created or knowingly permitted working conditions that were so intolerable or aggravated at the time of the employee’s 12

resignation that a reasonable employer would realize that a reasonable person in the employee’s position would be compelled to resign.” (Turner, supra, 7 Cal.4th at p. 1251.) Plaintiff’s declaration statement that she did not know that Sanchez had been terminated when she resigned does not raise any triable issue of material fact as to the existence of intolerable working conditions or a constructive discharge. Further, exhibit B to the Morris declaration indicates that Whitlow told Plaintiff that Sanchez had been suspended on December 18, and that Plaintiff responded that Cobarrubias had already told her. And none of the exhibits to the Morris declaration support the existence of intolerable working conditions that would compel a reasonable employee to resign.

Plaintiff’s resignation email is not itself evidence of a constructive discharge. The email makes no mention of Sanchez or any other specific working conditions. To the extent the email appears to be a response to the sick leave dispute, that dispute is not significant enough to constitute an adverse employment action, much less intolerable working conditions. Because Plaintiff has not established the existence of intolerable working conditions that would lead a reasonable employee to feel compelled to resign, she cannot show an adverse employment action that would support the discrimination and retaliation claims. And because Plaintiff cannot show she was terminated, she cannot support her wrongful constructive discharge claim.

Summary adjudication of the first, fourth, and fifth causes of action as brought against Autozoners is granted.

Third Cause of Action: Failure to Prevent Discrimination or Harassment

Under FEHA, an employer has an obligation to “take all reasonable steps necessary to prevent discrimination and harassment from occurring.” (Gov. Code, § 12940, subd. (k).) A claim for failure to prevent discrimination, harassment and retaliation necessarily depends on establishing that harassment, discrimination, or retaliation actually occurred. “An employer cannot be liable for failing to take corrective action if the underlying claim fails.” (Schmidt v. Superior Court (2020) 44 Cal.App.5th 570, 587, citing Dickson v.

Burke Williams, Inc. (2015) 234 Cal.App.4th 1307, 1314-1317.) Accordingly, a finding of actual discrimination, harassment, or retaliation under FEHA is required before a plaintiff may prevail under Government Code section 12940, subdivisions (k) or (j). (Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1021; Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th 280, 282-283.)

Because the court has determined that Autozoners is entitled to summary adjudication of the first and second causes of action as alleged against it, Autozoners is likewise entitled to summary adjudication of the third cause of action as alleged against it.

Sixth, Seventh, Eighth, and Ninth Causes of Action

Where mandated by a state law (including statutes, regulations, standards and orders of the IWC, the Occupational Safety and Health Standards Board and the Division of Occupational Safety and Health), employers must provide meal, rest, or recovery periods that “shall be counted as hours worked” and “for which there shall be no deduction from wages.” (Lab. Code, § 226.7, subds. (c), (d).) If the employer fails to provide any of the foregoing, it “shall pay the employee one additional hour of pay at the employee’s regular rate of 13

compensation for each workday that the meal or rest or recovery period is not provided.” (Lab. Code, § 226.7, subd. (c).) Under Labor Code section 512, an employer “may not employ an employee for a work period of more than five hours per day without providing the employee with a meal period of not less than 30 minutes, except that if the total work period per day of the employee is no more than six hours, the meal period may be waived by mutual consent of both the employer and employee.” (Lab. Code, § 512, subd. (a).)

If the work day is 10 hours, the employee must be provided with a second 30 minute duty-free meal break. (Id.) In general, employers must provide rest periods of a specified minimum duration (generally 10 minutes of paid rest for every four hours worked), and such periods are to be permitted in the middle of the shift “insofar as practicable.” (8 Cal. Code Regs., § 11010-11150, ¶ 12(A).)

An employer satisfies the obligation to “provide” a meal break “if it relieves its employees of all duty, relinquishes control over their activities and permits them a reasonable opportunity to take an uninterrupted 30 minute break, and does not impede or discourage them from doing so.” (Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1040 (Brinker).) The employer may not undermine a formal policy of providing meal breaks by pressuring employees to perform their duties in ways that omit breaks. (Cicairos v.

Summit Logistics, Inc. (2005) 133 Cal.App.4th 949, 962-963; see also Jaimez v. Daiohas USA, Inc. (2010) 181 Cal.App.4th 1286, 1304-1305 [proof of common scheduling policy that made taking breaks extremely difficult would show violation].) But “the employer is not obligated to police meal breaks and ensure no work thereafter is performed.” (Brinker, supra, 3 Cal.4th at 1040.) And a “missed meal break does not constitute a violation if the employee waived the meal break, or otherwise voluntarily shortened or postponed it.” (Lampe v.

Queen of the Valley Med. Ctr. (2018) 19 Cal.App.5th 832, 851; see also David v. Queen of Valley Med. Ctr. (2020) 51 Cal.App.5th 653, 661 (David).) “Similar principles apply to rest periods. An employer must ‘authorize and permit all employees to take rest periods’ at the rate of 10 minutes of rest for each four hours the employee works ‘or major fraction thereof.’” (David, supra, 51 Cal.App.5th at p. 661, quoting Brinker, supra, 53 Cal.4th at p. 1028.)

The complaint’s sixth cause of action alleges that Plaintiff was unable to take rest breaks “for various reasons, including but not limited to, the pressures from Plaintiff’s workload and from management to take shorter breaks than she was entitled to, or none at all.” (Complaint, ¶ 80.) It also alleges that Defendants failed to provide “the necessary coverage to take all necessary breaks.” (Id. at ¶ 81.) The complaint’s seventh cause of action alleges that Plaintiff was not paid all wages due upon termination because she was not compensated for “all premium wages penalties associated with all her missed/interrupted rest breaks.” (Complaint, ¶ 88.)

The eighth cause of action alleges a generic failure to provide accurate wage statements. The ninth cause of cause of action alleges that “Defendant’s violations of California wage and hour laws” constitute an unlawful business practice. (Complaint, ¶ 100.) Statutory violations must be alleged with particularity. The only wage and hour violations the complaint sufficiently alleges are a failure to provide rest breaks and a failure to pay wages due upon termination based upon the failure to provide rest breaks.

Autozoners has submitted evidence establishing that it had a compliant rest break policy. Plaintiff was aware of that policy. Under that policy, employees were supposed to notify a manager if they were prevented from taking rest breaks. (See undisputed material facts (UMFs) 54-58; Autozoners exhibits 9, 10, 11, 14, and 17.) Plaintiff testified at deposition that she communicated with other employees about when they should take rest breaks as part of her job. (Autozoners’ ex. 14 at p. 96:13-18.) Plaintiff understood that, under Autozoners’ 14

policy, she was supposed to notify a manager if she could not take a break. Contrary to complaint’s allegation of “pressure” to not take breaks, Plaintiff testified that no one told her to skip a rest break. (Id. at pp. 116:9-118:13.) Plaintiff testified that she sometimes missed breaks when working alone, but could not give an estimate of how often she was working alone. (Id. at p. 118:14-25.) She testified that she received a meal period penalty or premium for some but not all of the times she missed a meal or rest period. (Id. at p. 131:1-5.) She also testified that she complained about missing a meal period “maybe like a handful of times.” (Id. at p. 132:4-15.) Plaintiff later testified that there were instances when she skipped a rest break when working alone, and that there were probably occasions when she had forgotten to take a rest break. (Id. at p. 172:1-23.)

Whitlow testified that she had no knowledge of any complaints from Plaintiff about missed rest breaks. (Autozoners’ ex. 17 at pp. 71:1-73:9.) Autozoners’ evidence is sufficient to meet its initial burden to show that it did not fail to provide Plaintiff with the opportunity for rest breaks and did not instruct her not to take rest breaks.

When the burden shifts, Plaintiff is unable to raise a triable issue of material fact on this point. Plaintiff’s declaration does not address the alleged inability to take rest breaks. Exhibits A, B, C and D to the Hoffman declaration do not raise any triable issue of material fact as to whether Plaintiff was not provided with the opportunity to take rest breaks or was pressured to not take rest breaks.

The opposition acknowledges that the complaint’s seventh, eighth, and ninth causes of action are derivative of the sixth. (Opposition at pp. 15:27-16:1.) The opposition argues Brinker decision imposed a duty on the employer to affirmatively verify that meal or rest breaks were taken. But the “difficulty with the view that an employer must ensure no work is done—i.e., prohibit work—is that it lacks any textual basis in the wage order or statute.” (Brinker, supra, 53 Cal.4th at p. 1038.) The employer is not obligated to police breaks. “Proof an employer had knowledge of employees working through meal periods will not alone subject the employer to liability for premium pay; employees cannot manipulate the flexibility granted them by employers to use their breaks as they see fit to generate such liability.

On the other hand, an employer may not undermine a formal policy of providing meal breaks by pressuring employees to perform their duties in ways that omit breaks.” (Id. at p. 1040.) There is no evidence before the court that Autozoners pressured Plaintiff to perform her duties in ways that eliminated the opportunity for rest breaks.

Summary adjudication of the sixth, seventh, eighth, and ninth causes of action as alleged against Autozoners is granted.

OBJECTIONS TO EVIDENCE

Objections to evidence made in connection with a motion for summary judgment or adjudication must comply with California Rules of Court, rule 3.1354. “Unless otherwise excused by the Court on a showing of good cause, all written objections to evidence in support of or in opposition to a motion for summary judgment must be served and filed at the same time as the objecting party’s opposition or reply papers are served and filed.” (Cal. Rules of Court, rule 3.1354(a).) Two documents must be filed, evidentiary objections and a separate proposed order on the objections. Both documents must be in one of the two approved formats set forth in the rule. Courts are not required to rule on objections that do not fully comply with 15

the Rule. (Vineyard Spring Estates v. Super. Ct. (2004) 120 Cal.App.4th 633, 642 [trial courts only have duty to rule on evidentiary objections presented in proper format]; Hodjat v. State Farm Mutual Automobile Ins. Co. (2012) 211 Cal.App.4th 1 [trial court not required to rule on objections that do not comply with rules of court, and not required to give objecting party a second chance at filing properly formatted papers].) “Objections to evidence that are not ruled on for purposes of the motion shall be preserved for appellate review.” (Code Civ. Proc. § 437c, subd. (q).)

With its reply, Autozoners has submitted objections to exhibit B to the declaration of Andrew Morris in support of the opposition. Because those objections do not comply with California Rules of Court, rule 3.1354, the court declines to rule on them.

CONCLUSION

Defendant Autozoners’ motion for summary judgment of all nine causes of action in the complaint as alleged against it is granted.

The court will prepare the order.

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