Aranda vs. Paje Optometric, APC

19 Aranda vs. Paje Motion for Summary Judgment and/or Adjudication Optometric, APC The court DENIES Defendant PAJE OPTOMETRIC, APC, d/b/a ADVANCED OPTOMETRY OF MISSION VIEJO’s motion for summary judgment on the Complaint by Plaintiff LAURA ARANDA.

The court GRANTS in part, and DENIES in part, the alternative motion for summary adjudication. Specifically, the court GRANTS the motion as to the eighth cause of action (interference with CFRA rights), the ninth cause of action (retaliation for exercising CFRA rights), and as to Plaintiff’s claim for punitive damages. Summary adjudication is DENIED as to the first, second, third, fourth, fifth, sixth, seventh, tenth, eleventh, twelfth, and thirteenth causes of action of the Complaint.

The Complaint asserts the following causes of action against Defendant, the only specifically named defendant:

1. Sex/Gender/Pregnancy Discrimination in Violation of the FEHA; 2. Disability Discrimination in Violation of the FEHA; 3. Retaliation in Violation of the FEHA; 4. Failure to Investigate and Prevent Discrimination and Retaliation in Violation of the FEHA; 5. Failure to Provide Reasonable Accommodations in Violation of the FEHA; 6. Failure to Engage in a Good Faith Interactive Process in Violation of the FEHA; 7. Violation of California Pregnancy Disability Leave Law; 8. Interference with CFRA rights; 9. Retaliation for Exercising CFRA Rights; 10. Failure to Provide Rest Periods; 11. Failure to Provide Meal Periods; 12. Unfair Business Practice in Violation of Cal. Lab. Code § 17200; and 13. Wrongful Termination in Violation of Public Policy.

Burden of Production in Employment Law Cases

Courts utilize the McDonnel Douglas framework when analyzing employment law motions for summary judgment, which allocates the burdens of production and proof between the parties in an increasingly narrow focus:

• First, plaintiff/employee must establish a prima facie case of discrimination; • Second, the burden of production then shifts to the employer to establish a legitimate, nondiscriminatory reason for its actions; and • Finally, the burden shifts back to plaintiff/employee to establish that the employer's articulated reason was a “pretext” or cover-up for unlawful discrimination.

(McDonnell Douglas Corp. v. Green (1973) 411 US 792, 802- 804.)

“A defendant’s summary judgment motion ‘slightly modifies the order of these [McDonnel Douglas] showings.” (Wills v. Superior Court (2011) 195 Cal.App.4th 143, 160). “Consequently, [Defendant] had the initial burden to either (1) negate an essential element of [Plaintiff’s] prima facie case [citation removed] or (2) establish a legitimate, nondiscriminatory reason for terminating [Plaintiff]. (Id.). “[T]o avoid summary judgment [once the employer makes the foregoing showing], an employee claiming discrimination must offer substantial evidence that the employer’s stated nondiscriminatory reason for the adverse action was untrue or pretextual, or evidence that the employer acted with a discriminatory animus, or a combination of the two, such that a reasonable trier of fact could conclude the employer engaged in intentional discrimination.” (Id.)

Relevant Allegations/Facts

Ms. Aranda began working for Dr. Harold Green’s optometry practice in Mission Viejo, California in approximately September 2019. (Compl., ¶ 14, Exh. E.)

During the first quarter of 2021, Dr. Green passed away. After Dr. Green’s death, Dr. Green’s wife and widow, Lea Ann Green, as the successor-in-interest under the Will of

Harold Green, OD, decided to close his practice. (SUMF 2; Response to SUMF 2.)

Negotiations took place with Harold Green, O.D.’s widow, Lea Ann Green, for the purchase of the assets of Dr. Green’s optometry practice. (SUMF 3; Response to SUMF 3.)

In approximately March-April 2021, Defendant PAJE Optometric acquired Dr. Green’s practice. (Fimreite Decl., ¶ 5 & Mvg. Evid., Exh. A). The new owners Dr. Patricia Atie-Fimreite, Dr. Jeffrey Fimreite, and Dr. Vanessa Grichine interviewed the existing staff, including Ms. Aranda, who was approximately six to six-and-a-half months pregnant and visibly showing at the time. (Ex. A, Aranda Depo. at p. 89, Exh. A; Grichine PMK Depo. at pp. 85-86, Exh. B.) During the interview, Ms. Aranda disclosed her pregnancy and her intent to take maternity leave and Defendant knew that Plaintiff was pregnant. (Id. & SUMF # 6.)

Plaintiff requested pregnancy leave, which was approved from 6/21/21 to 8/30/21. (SUMF #7; Response to SUMF #7.)

While these facts are largely undisputed, the parties’ dispute revolves around what occurred toward the end of Plaintiff’s leave.

According to Defendant:

• At no time did Defendant request that Plaintiff not return to work, or to return her keys. (SUMF 14.) • Plaintiff stopped by one day in mid-September with her new baby at Defendant’s office and spoke to Dr. Vanessa Grichine. Dr. Grichine asked Plaintiff when she was coming back to work. Plaintiff responded, “I don’t know”. Plaintiff dropped off her keys when she stopped by, so Defendant concluded she had made the decision not to return to work. (Id.) • At no point in time did Plaintiff inform Defendant that she wanted to return to work. Plaintiff never

informed Defendant of a date that Plaintiff intended to return to work. (Id.) • Because Plaintiff did not follow up, Defendant concluded that Plaintiff had abandoned her position and resigned, but Defendant did not terminate Plaintiff. (Id.)

According to Plaintiff:

• Defendant’s version of facts is incorrect because Plaintiff testified that she returned her spare key before her baby was born (between June 18 and July 26, 2021), not in mid-September. (Opp Evid., Exh. A, Aranda Depo. at pp. 136-137.) • On 9/3/21, Plaintiff sent a text message to Dr. Atie about returning to work. (Opp Evid., Exh. C, Texts) • Ms. Aranda testified she wanted to go back to work. (Opp Evid., Exh. A, Aranda Depo. at p. 183:11- 13.) • On 9/7/21, Dr. Atie responded: “We are going through some upcoming schedule changes at the office.

Once we know exactly what our time requirements are, we will get back to you.” (Opp’n Evid., Exh. C, Texts.) • Defendant’s PMK, Dr. Grichine testified that after receiving Ms. Aranda’s text, the response was: “Laura’s coming back. We need her. Reach out to Laura. Let’s get her back on the schedule.” (Opp’n Evid., Exh. B, Grichine PMK Depo. at pp. 88-89.) When asked if she personally reached out to Ms. Aranda after that conversation, Dr. Grichine answered: “No.” When asked if the office manager reached out: “I don’t know.”

When asked if Dr. Atie ever reached out: “I don’t recall.” (Opp’n Evid., Exh. B, Grichine PMK Depo. at p. 89:11-19.) • After 9/7/21, no one from PAJE ever contacted Ms. Aranda again. (Opp’n Evid., Exh. A, Aranda Depo. at p. 153:4-6.) Ms. Aranda never received any communication that her employment was terminated, that she was replaced, or that she was

expected to take any action to return. (Id.) After months of silence, Ms. Aranda reasonably concluded she had been terminated. (Id. at p. 182.)

Under Plaintiff’s version of events, after Plaintiff reached out to ask about coming back, Defendant made no efforts to follow through such that Plaintiff deemed Defendant’s silence to be constructive termination.

1st – 7th C/As

It appears undisputed that following the expiration of her pregnancy leave, Plaintiff never returned to work. Defendant therefor argues that Plaintiff never requested an accommodation and as such, Defendant never discriminated against her. Defendant also makes the alternative argument that even if Plaintiff requested an accommodation, Plaintiff cannot establish that Defendant terminated Plaintiff as a pretext for discrimination.

The court first broadly addresses these issues and then analyzes how these issues relate to each of the first through seventh causes of action.

Defendant’s first main point is that because Plaintiff did not require or request an accommodation related to pregnancy or any disability, but simply did not return to work, there is no discrimination. The court finds that there are triable issues of fact on this issue. Here, there are sufficient undisputed and disputed facts to establish that triable issues of fact exist that Plaintiff was pregnant, requested a leave, and that upon her leave expiring, Plaintiff reached out to Defendant to discuss returning to work.

Defendant responded, but saying they would follow up with Plaintiff, but Defendant did not follow up. (Opp’n Evid., Exh. A, Aranda Depo. at p. 183:11-13 [Plaintiff testifying that she would like to return to work], Exh. C, [texts messages showing that Plaintiff initiated contact at the end of her leave and Defendant’s agent stated that they would get back to her]; Grichine PMK Depo. at pp. 88- 89, Exh. B [Defendant’s PMK testifying that Defendant acknowledged that Plaintiff wanted to come back and should reach out to her].)

As part of a disability discrimination cause of action, FEHA requires that an employer engage in the “interactive process” to identify a reasonable accommodation. “‘The “interactive process” required by the FEHA is an informal process with the employee ... to attempt to identify a reasonable accommodation that will enable the employee to perform the job effectively. ...’ [Citation.]” (Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1013 (Scotch).) “‘Although it is the employee’s burden to initiate the process, no magic words are necessary, and the obligation arises once the employer becomes aware of the need to consider an accommodation.’ [Citation.]

Once the interactive process is initiated, the employer’s obligation to engage in the process in good faith is continuous. ‘[T]he employer’s obligation to engage in the interactive process extends beyond the first attempt at accommodation and continues when the employee asks for a different accommodation or where the employer is aware that the initial accommodation is failing and further accommodation is needed. ....’ [Citation].” (Ibid.; see Swanson v. Morongo Unified School Dist. (2014) 232 Cal.App.4th 954, 971-972.)

“Both employer and employee have the obligation ‘to keep communications open’ and neither has ‘a right to obstruct the process.’ [Citation.] ‘Each party must participate in good faith, undertake reasonable efforts to communicate its concerns, and make available to the other information which is available, or more accessible, to one party. Liability hinges on the objective circumstances surrounding the parties’ breakdown in communication, and responsibility for the breakdown lies with the party who fails to participate in good faith.’ [Citation.]” (Scotch, 173 Cal.App.4th at 1014.)

This is important because it is the interactive process that determines which accommodation is required. (Scotch, 173 Cal.App.4th at 1016.) Once an employer is aware of a disability, it has an “affirmative duty” to make reasonable accommodations for the employee. (Cal. Code Regs., tit. 2, § 11068(a) [“An employer or other covered entity has an affirmative duty to make reasonable accommodation(s) for the disability of any ... employee if the employer ... knows of the disability, unless the employer ... can demonstrate,

after engaging in the interactive process, that the accommodation would impose an undue hardship.”].) Where a necessary accommodation is obvious and available and the employer fails to provide it, a plaintiff may sue for failure to provide a reasonable accommodation under FEHA. (See Scotch, at pp. 1016- 1017; see also id. at pp. 1009-1010 [elements of a failure to accommodate claim].)

“A woman is ‘disabled by pregnancy’ if, in the opinion of her health care provider, she is unable because of pregnancy [to work at all or is unable] to perform any one or more of the essential functions of her job or to perform these functions without undue risk to herself, to her pregnancy's successful completion, or to other persons.” (Paleny v. Fireplace Products U.S., Inc. (2024) 103 Cal.App.5th 199, 209.)

Here, it is undisputed that Plaintiff was pregnant, obtained the opinion of a health care provider, and that Plaintiff was granted pregnancy leave. Once Plaintiff’s leave was at its end, Plaintiff affirmatively contacted Defendant to discuss the logistics of returning back to work. Defendant acknowledged this discussion with Plaintiff, but did not follow up with Plaintiff. These facts create a triable issue as to whether or not Defendant made reasonable efforts to communicate, whether Defendant failed to offer further accommodation, and whether or not Defendant breached its affirmative duty to engage in the interactive process. A finding of a failure to accommodate constitutes disability discrimination under FEHA.

Defendant’s second point is that there was no adverse employment action because, from these facts, Plaintiff resigned and abandoned her post—Defendant did not terminate her. Plaintiff argues that, based on these facts, Defendant, by not following up with her or reaching out to her, constructively terminated her and placed job advertisements to seek her replacement. (Opp’n Evid., Exh. B, Grichine PMK Depo. at p. 92:6-7.) Both parties, therefore, ask the court to infer the facts in their favor— was it abandonment by the employee or constructive termination by Defendant?

The legal standard on motions for summary judgment guides the court’s analysis: The moving party’s evidence is strictly construed, while the opposing party’s evidence is liberally construed, and any doubts as to whether summary judgment should be granted must be resolved in favor of the opposing party. (Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56, 64; accord, Atkins v. St. Cecilia Catholic School (2023) 90 Cal.App.5th 1328, 1344-1345; Trop v. Sony Pictures Entertainment, Inc. (2005) 129 Cal.App.4th 1133, 1143.) “The court focuses on finding issues of fact; it does not resolve them.

The court seeks to find contradictions in the evidence or inferences reasonably deducible from the evidence that raise a triable issue of material fact. [Citation.]” (Trop, 129 Cal.App.4th at 1143-1144.) Inferring the evidence most liberally in favor of the opposing party, here Plaintiff, the court finds a triable issue of fact. The question of whether or not these same set of facts establish abandonment/resignation and/or constructive termination is a triable issue of fact for a jury to decide.

Finally, Defendant argues that to the extent there was a termination, Defendant had a legitimate, nondiscriminatory reason. Because Plaintiff did not follow up further, Defendant assumed that Plaintiff did not want to return to work. Any constructive termination, therefore, was not based on any discriminatory intent. The court finds that this is sufficient to meet Defendant’s prima facie burden of establishing a legitimate, non-discriminatory reason.

The burden then shifts to Plaintiff to offer sufficient evidence to establish pretext. The court finds that Plaintiff has offered sufficient evidence to show a triable issue of material fact regarding whether or not any termination was based on a legitimate, non-discriminatory reason or was a pretext for discrimination. Significantly, Plaintiff offers evidence of temporal proximity from the time of the end of Plaintiff’s leave to when Defendant began searching for a replacement.

“Temporal proximity alone is not sufficient to raise a triable issue as to pretext once the employer has offered evidence of a legitimate, nondiscriminatory reason for the

termination. [Citations.] This is especially so when the employer raised questions about the employee’s performance before [the protected activity], and the subsequent termination is based on those performance issues. [Citations.]” (Arteaga v. Brink’s, Inc. (2008) 163 Cal.App.4th 327, 353.) Specifically, “‘[s]tanding alone against Defendant’s strongly supported legitimate reason for terminating [Plaintiff], temporal proximity does not amount to more than a scintilla of evidence of [wrongdoing].’” (Arteaga v. Brink’s, Inc. (2008) 163 Cal.App.4th 327, 353 [citation omitted].) On the other hand, temporal proximity together with other evidence may be sufficient to establish pretext. (Id. at 353-354.) For example, temporal proximity may be a factor where an employee with a good performance record is suddenly accused of serious performance problems and terminated. (Ibid.)

Here, there is sufficient evidence of temporal together with other evidence that a trier of fact could reasonably infer pretext. There is no evidence of any performance issues with Plaintiff and/or that Plaintiff was not high performing. Defendant did not raise any issues with Plaintiff prior to Plaintiff’s pregnancy leave. Further, despite knowing that Plaintiff contacted Defendant about returning, Defendant took no steps to confirm whether or not Plaintiff needed further accommodation, when Plaintiff should return, and/or if Plaintiff would like to resign. As such, triable issues of fact exist on this issue.

With these findings, the court analyzes whether or not Defendant met its burden of negating an element of the first through seventh causes of action.

A. 1st C/A (Sex/Gender/Pregnancy Discrimination in Violation of the FEHA) and 2nd C/A (Disability Discrimination in Violation of the FEHA)

To allege disability discrimination, the plaintiff initially has the burden to present evidence that demonstrates, even circumstantially or by inference, that (1) the plaintiff had a condition related to pregnancy, childbirth, or a related medical condition; (2) the plaintiff requested

accommodation of this condition, with the advice of her health care provider; (3) the plaintiff's employer refused to provide a reasonable accommodation; and (4) with the reasonable accommodation, the plaintiff could have performed the essential functions of the job. (Lopez v. La Casa De Las Madres (2023) 89 Cal.App.5th 365, 370-371; Sandell v. Taylor-Listug, Inc. (2010) 188 Cal.App.4th 297, 310.)

Here, as the court found above, there are questions of fact regarding whether or not an accommodation was sought and whether the employer refused to provide a reasonable accommodation. The motion is therefore DENIED as to the first and second causes of action.

B. 3rd C/A (Retaliation in Violation of the FEHA)

To establish a prima facie case of retaliation under 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 existed between the protected activity and the employer’s action. (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.)

Here, as the court found above, there are triable issues of fact as to whether or not Plaintiff engaged in protected activity (i.e., by requesting information on the logistics of her returning to work) and whether or not Defendant engaged in an adverse employment action (i.e., by constructively terminating Plaintiff’s employment and finding a replacement). For these reasons, the motion is DENIED as to the third cause of action.

C. 4th C/A (Failure to Investigate and Prevent Discrimination and Retaliation in Violation of the FEHA); 5th C/A (Failure to Provide Reasonable Accommodations in Violation of the FEHA); and 6th C/A (Failure to Engage in a Good Faith Interactive Process in Violation of the FEHA);

The elements of a reasonable accommodation cause of action are (1) the employee suffered a disability, (2) the employee could perform the essential functions of the job

with reasonable accommodation, and (3) the employer failed to reasonably accommodate the employee's disability. (Nealy v. City of Santa Monica (2015) 234 Cal.App.4th 359, 373.)

A failure to engage in an interactive process cause of action requires a showing that the defendant failed to engage in the interactive process required by FEHA. As the court found above, there are questions of fact as to whether or not Defendant failed to reasonably accommodate Plaintiff. As such, Defendant has not negated an element of these causes of action. The motion is, therefore, DENIED as to the fourth, fifth, and sixth causes of action.

D. 7th C/A (Violation of California Pregnancy Disability Leave Law)

The Pregnancy Disability Leave Law (“PDLL”) applies to all employers with five or more employees. (Gov. Code § 12945(a).) Under the PDLL, an employee who takes pregnancy disability leave is entitled to be reinstated to the same or a comparable position. (Gov. Code § 12945(a)(5)(A).)

As the court found above, there are triable issues of fact regarding whether or not Defendant offered Plaintiff reinstatement after Plaintiff’s pregnancy leave. Defendant, therefore, did not negate an element of this cause of action as triable issues of fact exist regarding a violation of the PDLL occurred or not. The motion is DENIED as to the seventh cause of action.

E. 8th C/A (Interference with CFRA Rights) and 9th C/A (Retaliation for Exercising CFRA Rights)

The California Family Rights Act ("CFRA") entitles eligible employees to take up to 12 unpaid workweeks in a 12- month period to bond with a child. (Govt. Code, § 12945.2(a); Gibbs v. American Airlines, Inc. (1999) 74 Cal.App.4th 1, 6.) Upon an employee's return from leave under CFRA, an employer must generally restore the employee to the same or a comparable position. (Govt. Code, § 12945.2(a); Cal. Code Regs., tit. 2, § 7297.0, (f)-(g)). To be eligible for CFRA leave, an employee must have more

than 12 months of service with their employer, have worked at least 1,250 hours in the 12-month period before the date they want to begin their leave, and their employer must have five or more employees (Govt. Code, § 12945.2(a).)

Defendant argues that Plaintiff did not work for Defendant for over 12 months and Plaintiff did not work at least 1,250 hours in the 12-month period before the date she began her leave. (SUMF #8.) The court finds that this evidence for Defendant to meets its prima facie burden.

To rebut this, Plaintiff argues that Plaintiff began working for Dr. Green’s practice in September 2019 – years before her leave. The transition of ownership does not necessarily restart the clock for purposes of CFRA eligibility if there was a successor employer relationship, for example, if the new owners continue using the same facility, the same employees in their same roles, the same equipment, and engages in a similar business. (See EEOC v. MacMillan Bloedel Containers, Inc. (6th Cir. 1974) 503 F.2d 1086, 1094. [citations omitted].)

The EEOC court held, “But the real question in each of these ‘successorship’ cases is, on the particular facts, what are the legal obligations of the new employer to the employees of the former owner or their representative. The answer to this inquiry requires analysis of the interests of the new employer and the employees and of the policies of the labor laws in light of the facts of each case and the particular legal obligation which is at issue, whether it be the duty to recognize and bargain with the union, the duty to remedy unfair labor practices, the duty to arbitrate, etc.

There is, and can be, no single definition of ‘successor’ which is applicable in every legal context. A new employer, in other words, may be a successor for some purposes and not for others.” (Id. at 1091.) As such, the court held that successor liability could be imposed in certain cases under Title VII. (Id. at 1094.)

Even if the court were to adopt this legal reasoning, Plaintiff failed to offer sufficient evidence to show that Defendant is the successor of Dr. Green and/or that successor liability should be imposed on Defendant. Plaintiff fails to analyze any factors of successor liability

and identify admissible facts to establish that Defendant meets any of those factors. Indeed, the only evidence in the record is evidence that Defendant only purchased the assets identified in the purchase and sale agreement (Mvg. Evid., Exh. A) and that all employees would be terminated. (Fimrejte Decl., ¶¶ 6-7; Green Decl., ¶¶ 5-8.)

As such, the court finds that Plaintiff failed to meet its burden of showing a triable issue of material fact as to the CFRA claims. Summary adjudication is therefore GRANTED as to the eighth and ninth causes of action.

F. 10th C/A (Failure to Provide Rest Period) and 11th C/A (Failure to Provide Meal Periods)

“An employer shall not require an employee to work during a meal or rest or recovery period mandated pursuant to an applicable statute, or applicable regulation, standard, or order of the Industrial Welfare Commission, the Occupational Safety and Health Standards Board, or the Division of Occupational Safety and Health.” (Lab. Code, § 226.7(a).)

Defendant argues that these causes of action are subject to summary adjudication because they had a compliant policy and because Plaintiff never complained about any meal or rest period violations.

An “employer is not obligated to police meal breaks and ensure no work thereafter is performed.” (Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1040.) An employer fulfills its duty with respect to breaks if it relieves its employees of all duty, relinquishes control over their activities and permits them a reasonable opportunity to take an uninterrupted ... break, and does not impede or discourage them from doing so.” (Ibid.) “[A]n employer may not undermine a formal policy of providing meal breaks by pressuring employees to perform their duties in ways that omit breaks. [Citations.] The wage orders and governing statute do not countenance an employer’s exerting coercion against the taking of, creating incentives to forgo, or otherwise encouraging the skipping of legally protected breaks.” (Brinker, 53 Cal.4th at 1040.)

Under California law, an employer may not merely have a policy of providing breaks—it must actually authorize and permit them. (Brinker, 53 Cal.4th at 1040.) An employer’s duty is to “relinquish control” over employees during breaks. (Id.) Where an employee is effectively on call during her break and feels compelled to interrupt her break to assist patients, there is a triable issue as to whether the employer provided legally compliant rest and meal periods. (See Augustus v. ABM Security Services, Inc. (2016) 2 Cal.5th 257, 269.)

Here, having a policy is not sufficient. Plaintiff testified that her breaks were routinely interrupted because the office was small and understaffed, and she felt compelled to attend to patients and answer phones during breaks. (Aranda Depo. at p. 152, Exh. A.) Plaintiff’s declaration is sufficient to show a triable issue of material fact that Plaintiff was effectively on call during her break and felt compelled to interrupt her break to assist patients. As such, a triable issue of material fact exists as to whether or not the employer provided legally compliant rest and meal periods.

The motion is therefore DENIED as to the tenth and eleventh causes of action.

G. 12th C/A (Unfair Business Practices) and 13th C/A (Wrongful Termination)

Defendant argues that because Defendant did not violate FEHA, then Plaintiff’s derivative claims for unfair business practices fails and wrongful termination. (Citing Featherstom v. S. Cal. Permanente Med. Grp. (2017) 10 Cal.App.5th 1150, 1169 ["if an employer did not violate [the] FEHA, the employee's claim for wrongful termination in violation of public policy necessarily fails."].)

However, as the court found above, Plaintiff’s FEHA claims are still viable as triable issues of fact exist. As such, Plaintiff’s derivative claims for unfair business practices and wrongful termination, based on violations of FEHA are also still viable.

The motion is therefore DENIED as to the twelfth and thirteenth causes of action.

H. Punitive Damages

Defendant also moves for summary adjudication on the issue of punitive damages. Defendant argues that Plaintiff cannot establish malice, oppression, or fraud to support a punitive damages claim.

To plead a claim to recover punitive damages, a plaintiff must plead and show one of the following bases for imposition of exemplary damages, i.e. malice, oppression, or fraud. (Civ. Code, § 3294(a).) The statute specifically defines “malice” to mean “conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” (Civ. Code, § 3294(c)(1).) The statute defines “oppression” to mean “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” (Civ. Code, § 3294(c)(2).)

The malice and oppression prongs include a requirement of “despicable conduct.” In other words, conduct carried on with a willful and conscious disregard of the rights or safety of others, but that is not “despicable,” will not support an award of punitive damages. (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 725.) “Punitive damages are proper only when the tortious conduct rises to levels of extreme indifference to the plaintiff’s rights, a level which decent citizens should not have to tolerate.” (Lackner v.

North (2006) 135 Cal.App.4th 1188, 1210 [citations and quotation marks omitted].) Conduct carried on with a willful and conscious disregard of the rights or safety of others, but that is not “despicable,” will not support an award of punitive damages under the malice and oppression prongs. (College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 725.) “Despicable conduct” refers to circumstances that are vile, base, or contemptible that it would be looked down on and despised by reasonable people. (Ibid.)

Such conduct has been described as “having the character of outrage frequently associated

with crime.” (Scott v. Phoenix Schools, Inc. (2009) 175 Cal.App.4th 702, 715.)

To plead a claim to recover punitive damages against an employer based on the acts of an employee, a plaintiff must also plead facts showing the employer “had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud or malice. With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or [wrongful] act must be on the part of an officer, director, or managing agent of the corporation.” (Civ.

Code, § 3294(b).) The California Supreme Court defined “managing agents” as those employees who exercise substantial independent authority and discretion in making decisions that ultimately determine corporate policy. (White v. Ultramar, Inc. (1999) 21 Cal.4th 563, 566-567.)

In Plaintiff’s opposing papers, Plaintiff fails to address the issue of punitive damages; does not identify the specific conduct for which Plaintiff contends constitute malice, oppression, or fraud; fails to identify the specific person who engaged in that conduct and whether or not they were a managing agent and/or whether or not Defendant ratified such conduct; and offers no legal authority to support Plaintiff’s basis for punitive damages. As such, on the record before the court, no triable issues of material fact apparently exist on the issue of punitive damages.

As such, the motion is GRANTED as to Plaintiff’s claim for punitive damages.

Evidentiary Objections: The court OVERULES Defendant’s objection Nos. 1-20 to Plaintiff’s evidence.

Moving Defendant to give notice.

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