Beghtol vs. Saddleback Memorial Medical Center

Defendant’s evidentiary objections fail to comply with California Rules of Court rule 3.1354, as they are not consecutively numbered. (Cal. Rules of Court rule 3.1354(b).) Nonetheless, the objections were reviewed and independently consecutively numbered. The Court OVERRULES Objections Nos. 1, 3 through 4 and 6 through 9.

The statement from Plaintiff’s Counsel which indicates Exhibit 1 “is a true and correct copy of excerpts of Defendant’s document production,” is sufficient to authenticate the documents as against Defendant. (See ¶2 of Gleason Declaration [ROA No. 266].) Additionally, the statement is supported by sufficient personal knowledge and foundation, given Mr. Gleason is an attorney of record for Plaintiff in this action. (¶1 of Gleason Declaration [ROA No. 266].)

Thereafter, while Defendant repeatedly asserts that Plaintiff’s declaration should be dismissed as “uncorroborated and self-serving,” the statements targeted within Objections Nos. 3 through 4 and 6 through 9, adequately describe conduct and experiences by Plaintiff, rather than mere legal conclusions or subjective beliefs.

With respect to Objection Nos. 2 and 5, the identified evidence was not cited by Plaintiff within his Separate Statement and, consequently, was not reviewed. Thus, these objections are not material to the resolution of this motion and rulings are unnecessary. (Code Civ. Proc., § 437c, subd. (q).)

Initially, Defendant seeks adjudication of Plaintiff’s disability related claims, based on its assertion Plaintiff was never diagnosed with a disability. In support of this argument, Defendant cites SSUF Nos. 10 and 11, wherein it asserts “Plaintiff was never diagnosed with ‘long-haul COVID-19’” and “Plaintiff only tested positive for COVID-19 one time.” (See SSUF Nos. 10-11 [ROA No. 258].)

Defendant’s identified facts rely on the lack of a diagnosis and positive test results; however, the stated facts do not establish that Plaintiff was neither “disabled” nor perceived as such, as relevant under FEHA.

“Under FEHA, a person is ‘physically disabled’ when he or she has a physiological condition that ‘limits a major life activity.’” (Sandell v. Taylor- Listug, Inc. (2010) 188 Cal.App.4th 297, 311 (Sandell); See also Gov. Code, § 12926, subd. (m)(1)(B).) “[A] qualifying disease or condition ‘limits a major life activity if it makes the achievement’ of the activity ‘difficult.’” (Sandell, supra, 188 Cal.App.4th at p. 311.) Additionally, “major life activities,” “shall be broadly construed and includes physical, mental, and social activities and working.” (Gov. Code, § 12926, subd. (m)(1)(B)(iii).

Similarly, a “physical disability” includes “[b]eing regarded or treated by the employer or other entity covered by this part as having, or having had, any physical condition that makes achievement of a major life activity difficult.” (Gov. Code, § 12926, subd. (m)(4).)

While Defendant asserts Plaintiff was never diagnosed with “long haul COVID- 19” and only tested positive for COVID-19 once, Defendant cites no authority which requires a formal diagnosis, to establish a disability.

Based on the authority cited above, the relevant question is whether Plaintiff suffered from a condition that affected a major life activity or was perceived as such. (See Sandell v. Taylor-Listug, Inc. (2010) 188 Cal.App.4th 297, 311 and Moore v. Regents of University of California (2016) 248 Cal.App.4th 216, 242.)

As Defendant offered no evidence or analysis relevant to these questions, Defendant failed to meet its initial burden, as to this portion of the motion.

Additionally, regardless, the evidence indicates a triable issue exists, as to whether Plaintiff suffers from long-haul COVID-19 and whether the same qualifies as a disability, for purposes of FEHA: Despite the lack of a formal diagnosis, Plaintiff testified that an ER doctor used the phrase “long-haul COVID,” while treating Plaintiff. (Defense Exhibit 1: Beghtol Deposition: 109:18-23 [ROA No. 248].) Per Plaintiff, the ER doctor indicated he had symptoms of long-haul COVID. (¶3 of Gleason Declaration and Exhibit 2 thereto, Beghtol Deposition: 108:15-21 [ROA No. 266].)

Plaintiff also testified that he communicated to Defendant, that he was suffering from long-haul COVID-19 and needed accommodation, in the form of his schedule not being stacked. (Defense Exhibit 1: Beghtol Deposition: 109:24- 110:6 [ROA No. 248]; See also ¶3 of Gleason Declaration and Exhibit 2 thereto, Beghtol Deposition: 108:7-14 and 118:7-14 [ROA No. 266].)

Plaintiff testified that his long-haul COVID 19 symptoms include shortness of breath, trouble breathing, headaches and lightheadedness,” which he still experiences today. (¶3 of Gleason Declaration and Exhibit 2 thereto, Beghtol Deposition: 121:10-15 [ROA No. 266].) Per Plaintiff, the symptoms of his “longhaul” COVID caused him to call out from work on multiple occasions. (Id. at p. 183:9-20.) Additionally, the evidence indicates Plaintiff informed Defendant that his absences were due to long-haul COVID symptoms. (Id. at p. 183:21-24.)

Based on the above, a triable issue exists, as to whether Plaintiff suffers from a condition that affects a major life activity.

As this is the sole basis for seeking adjudication of the First and Second Causes of Action, adjudication is DENIED, as to Issues Nos. 1 and 2.

With respect to the Fourth Cause of Action, Defendant articulates two facts which it indicates relate specifically to the claim for Age Discrimination. (See Motion: 5:3-7); however, Defendant offers no further legal argument, relating to the same.

This brief potion of the motion cites ¶24 of the Second Amended Complaint, which alleges as follows: “On or about 2016, under the supervision of Defendant Weber, Defendants...began providing more hours to part-time, younger and less expensive respiratory therapists in violation of company policy and to the detriment of full-time, older and more expensive respiratory therapists such as Plaintiff.” (¶24 of SAC [ROA No. 115] [emphasis added].)

In an apparent attempt to challenge the above, Defendant offers SSUF No. 14, which states: “Plaintiff was born on July 10, 1966.” (See SSUF No. 14 [ROA No. 258].) Additionally, Defendant offers SSUF No. 15, which states: “At all relevant times, Defendant’s Respiratory Therapy Department had no policy against scheduling part-time employees over full-time employees during slow shifts.” (See SSUF No. 15 [ROA No. 258].)

The above facts do not defeat Plaintiff’s claim that younger employees were favored and, thus, this argument fails.

With respect to the Fifth Cause of Action, Defendant seeks adjudication on the basis “Plaintiff never went on ‘medical leave’ for COVID-19.” (See SSUF No. 13 [ROA No. 258].) Based on the same, Defendant asserts that Plaintiff cannot establish he exercised his right to take leave under the CFRA, as required. (Motion: 7:21-26 [ROA No. 251].)

To establish Plaintiff “never went on medical leave for COVID-19,” Defendant cites the same evidence relied on, to establish Plaintiff was never diagnosed with “long-haul” COVID-19 and only tested positive for COVID-19 once. (Compare SSUF Nos. 10-12 and SSUF No. 13.) Defendant offers no explanation, as to how Plaintiff’s medical records, testimony regarding his treatment for COVID-19, and requests for accommodation, establish he did not take any leave.

The sole new evidence cited, to support that medical leave was not taken, is Defendant’s Exhibit 54 which, per the Declaration of Michelle Gutierrez, consists of Plaintiff’s pay stubs from the period between May 6, 2019, to May 6, 2022. (¶50 of Gutierrez Declaration [ROA No. 246].) While the entirety of Plaintiff’s pay stubs for the above period has purportedly been attached, Defendant offers no testimony or declaratory evidence which explains their meaning or offers assistance to the Court, in their interpretation.

While the implication is that CFRA leave would appear within these paystubs, the Court is left to speculate as to how.

In addition to the above, the evidence offered by Defendant indicates Plaintiff took time off in January of 2022, due to COVID-19 symptoms. (Defense Exhibit 1: Beghtol Deposition: 279:16-281:8 [ROA No. 248]; See also Exhibit 29.) The evidence likewise indicates this fact was communicated to Defendant. (Ibid.)

Defendant offers no authority or further discussion, which establishes the above cannot qualify as CFRA leave, for purposes of this claim.

In Moore v. Regents of University of California (2016) 248 Cal.App.4th 216, the Court of Appeal found testimony from plaintiff which indicated she “never used, or intended to use, a protected leave during her employment” insufficient to establish the plaintiff “did not ‘exercise[] her right to take leave for a qualifying CFRA purpose.’” (Id. at p. 248.) The Court explained: “The relevant question with respect to this element is not whether a plaintiff expressly requested CFRA leave, but, rather, whether a plaintiff ‘exercised her right to take leave’ and whether the purpose for the leave sought was ‘qualifying CFRA purpose.’” (Id. at pp. 248-249.)

Defendant offers no analysis of the California Family Rights Act and, consequently, Defendant has not established that Plaintiff’s absences in January of 2022, did not arise from a “qualifying CFRA purpose.”

Next, Defendant asserts that several of Plaintiff’s claims fail, as Defendant had a legitimate basis for terminating Plaintiff’s employment.

Initially, while Defendant seeks to challenge ten different causes of action on this basis, it offers legal authority relevant to only three of the identified claims.

“Every brief should contain a legal argument with citation to authorities on the points made. If none is furnished on a particular point, the court may treat it as waived, and pass it without consideration.” (People v. Stanley (1995) 10 Cal.4th 764, 793.)

As noted by Defendant, to establish a claim for disability discrimination, Plaintiff must establish he “was subjected to an adverse employment action because of the disability or perceived disability.” (Sandell v. Taylor-Listug, Inc. (2010) 188 Cal.App.4th 297, 310 [Third Cause of Action].)

Similarly, to establish a claim for age discrimination, Plaintiff must establish he “was performing satisfactorily at the time of the adverse action” and “suffered the adverse action under circumstances that give rise to an inference of unlawful discrimination, i.e., evidence that the plaintiff was replaced by someone significantly younger than the plaintiff.” (Sandell v. Taylor-Listug, Inc. (2010) 188 Cal.App.4th 297, 321 [Fourth Cause of Action].)

Further, to state a claim for CFRA retaliation, Plaintiff must establish that he “suffered an adverse employment action, such as termination, fine, or suspension, because of [his] exercise of [his] right to CFRA [leave].” (Soria v. Univision Radio Los Angeles, Inc. (2016) 5 Cal.App.5th 570, 604 [Fifth Cause of Action].)

“California uses the three-stage burden-shifting test established by the United States Supreme Court for trying claims of discrimination based on a theory of

disparate treatment.” (Wilkin v. Community Hospital of Monterey Peninsula (2021) 71 Cal.App.5th 806, 820.)

“A defendant employer’s motion for summary judgment slightly modifies the order of these [McDonnel Douglas] showings. If, as here, the motion for summary judgment relies in whole or in part on a showing of nondiscriminatory reasons for the discharge, the employer satisfies its burden as moving party if it presents evidence of such nondiscriminatory reasons that would permit a trier of fact to find, more likely than not, that they were the basis for the termination. [Citations.] To defeat the motion, the employee then must adduce or point to evidence raising a triable issue, that would permit a trier of fact to find by a preponderance that intentional discrimination occurred. [Citations.]

In determining whether these burdens were met, we must view the evidence in the light most favorable to plaintiff, as the nonmoving party, liberally construing her evidence while strictly scrutinizing defendant’s.” (Wilkin v. Community Hospital of Monterey Peninsula (2021) 71 Cal.App.5th 806, 822.)

The McDonnell Douglas burden shifting framework, similarly, applies to claims for retaliation. (See Moore v. Regents of University of California (2016) 248 Cal.App.4th 216, 244.)

Having reviewed the entirety of the evidence, Defendant met its moving burden, by presenting evidence of “nondiscriminatory reasons for the discharge....” (Wilkin v. Community Hospital of Monterey Peninsula (2021) 71 Cal.App.5th 806, 820; See SSUF Nos. 2 through 9.)

Consequently, “[t]he burden therefore shifted to [Plaintiff] to ‘adduce or point to evidence raising a triable issue, that would permit a trier of fact to find by a preponderance that intentional discrimination [or retaliation] occurred.” (Wilkin v. Community Hospital of Monterey Peninsula (2021) 71 Cal.App.5th 806, 823.) “[P]laintiff must offer evidence that the employer’s stated reason is either false or pretextual, or evidence that the employer acted with discriminatory animus, or evidence of each which would permit a reasonable trier of fact to conclude the employer intentionally discriminated.” (Faust v. California Portland Cement Co. (2007) 150 Cal.App.4th 864, 886.)

Here, Plaintiff offers evidence which suggests the stated reasons for his termination were pretextual.

Initially, despite Plaintiff’s long disciplinary history, Plaintiff’s most recent employee reviews rated him highly. (See ¶2 of Gleason Declaration and Exhibit 1 thereto, at SMMC000003-000017 [ROA No. 266].) Per his final review, Plaintiff “frequently works as a relief supervisor” and “can be counted on to work well and independently in all critical care units.” (Id. at SMMC000006-7.)

While Plaintiff’s supervisor acknowledged that performance reviews should communicate if improvement is necessary, he confirmed there was nothing in the above performance review which would have notified Plaintiff he was not meeting performance expectations. (¶5 of Gleason Declaration and Exhibit 4 thereto, Weber Deposition: 44:11-45:9 and 46:3-47:6 [ROA No. 266].) Per Plaintiff’s supervisor, the above review indicates Plaintiff was meeting performance expectations, and nothing indicates concern regarding patient care, barcoding, or attendance. (Id. at 45:1-46:2.)

Plaintiff’s supervisor also testified that “through to the date of his termination” he trusted Plaintiff to “work in critical care settings at Saddleback.” (¶5 of Gleason Declaration and Exhibit 4 thereto, Weber Deposition: 31:8-13 [ROA No. 266].)

Further of note, while Plaintiff’s termination letter references two incidents which purportedly occurred on March 16, 2022, and March 20, 2022, as examples of unsatisfactory job performance (See Defense Exhibit 1: Exhibit 9 to Beghtol Deposition [ROA No. 248]), a March 23, 2022, email from Plaintiff’s supervisor to Human Resources, states: “Nothing extraordinary to report from performance/behavior standpoint.” (¶2 of Gleason Declaration and Exhibit 1 thereto, at SMMC002158 [ROA No. 262].) This statement was made in response to an email from Human Resources, stating that Plaintiff’s termination document had been finalized, but nonetheless asking “[h]as there been any other recent incidents regarding Bob at all?” (Ibid.)

The above evidence calls into question the motivation for Plaintiff’s termination, as it indicates: (1) The decision to terminate Plaintiff predates the above incidents; and (2) Plaintiff’s supervisor did not believe any significant performance failures occurred in March.

Notably, a fact finder “can take account of manifest weaknesses in the cited reasons in considering whether those reasons constituted the real motive for the employer’s actions, or have instead been asserted to mask a more sinister reality.” (Scheer v. Regents of the University of California (2022) 76 Cal.App.5th 904, 921.)

With respect to barcoding, the evidence indicates that Plaintiff was never warned that a failure to improve could result in termination. (¶3 of Gleason Declaration and Exhibit 2 thereto, Beghtol Deposition: 170:9-14[ROA No. 266]; ¶5 of Gleason Declaration and Exhibit 4 thereto, Weber Deposition: 104:8-105:8 [ROA No. 266].) In fact, when asked if he ever warned Plaintiff that he could be terminated due to his barcoding issues, Plaintiff’s supervisor stated: “I would say that it would be more of a counseling for barcoding.” (Id. at 104:8-13.) This testimony suggests barcoding failures are not, in Defendant’s eyes, a basis for termination.

Additionally, Plaintiff’s supervisor testified that no written policies existed regarding barcoding, and the 95% compliance rate is merely a goal. (¶5 of Gleason Declaration and Exhibit 4 thereto, Weber Deposition: 95:3-8 [ROA No. 266].)

The evidence also indicates that barcoding was not always possible. Per Plaintiff’s supervisor, barcoding could not be accomplished if the patient was in distress and a computer or scanner was not available. (¶5 of Gleason Declaration and Exhibit 4 thereto, Weber Deposition: 75:15-76:4 [ROA No. 266].) Per Plaintiff his numbers were consistently low because he manually entered “scanner not available, emergency, unreadable barcodes” in such instances, rather than forgoing treatments. (¶3 of Gleason Declaration and Exhibit 2 thereto, Beghtol Deposition: 287:20-288:1 [ROA No. 266].)

Similarly, the evidence indicates that Plaintiff was not warned that he was at risk of termination, due to attendance issues, contrary to Defendant’s written policy. (See also ¶4 of Gleason Declaration and Exhibit 3 thereto, LeGuern Deposition 183:5-15 [ROA No. 266].) Per Defendant’s written policies, a verbal warning was to be given, at five unscheduled absences. (¶2 of Gleason Declaration and Exhibit 1 thereto, at SMMC000404 [ROA No. 266].) “This is done to make the

employee aware of their attendance issues and to help avoid further disciplinary action.” (Ibid.) “Once these thresholds are exceeded our department will issue a ‘WRITEN’ warning that is sent to HR to be placed in your file. Progressive discipline will continue until the behavior is corrected. Further attendance and or other issues may lead to termination.” (Ibid [emphasis altered from original].)

While Defendant offered evidence of “Verbal Counseling” regarding this issue in October of 2016, Defendant’s Person Most Knowledgeable testified that, other than the termination document itself, there was no documentation showing Plaintiff was informed that his excessive absences were placing him at risk of discipline. (See ¶4 of Gutierrez Declaration [ROA No. 246] and Defense Exhibit 8 [ROA No. 248] [2016 Verbal Counseling] and ¶4 of Gleason Declaration and Exhibit 3 thereto, LeGuern Deposition: 183:5-15 [ROA No. 266].)

In addition to the above, Plaintiff offered evidence which indicates Defendant took near-immediate action to begin Plaintiff’s termination, shortly after Plaintiff documented potential negligence resulting in a patient death.

Per Plaintiff, he documented an incident on February 6, 2022, wherein he noted that a nurse “did not turn on the supply of oxygen to the patient while the patient was on a breathing machine.” (¶6-¶7 of Beghtol Declaration [ROA No. 264].) Plaintiff additionally indicates he reported his findings to his supervisors. (¶7-¶8 of Beghtol Declaration [ROA No. 264].)

Three days after Plaintiff’s initial report and on the same day Plaintiff purportedly met with his supervisor and Human Resources to discuss the incident, Defendant drafted what would become Plaintiff’s termination. (¶2 of Gleason Declaration and Exhibit 1 thereto, at SMMC003068 [ROA No. 262].) The drafted document notes the relevant patient died and references a concurrent allegation that Plaintiff referred to the relevant nurse as “stupid,” however, Plaintiff denies the accusation. (¶8 of Beghtol Declaration [ROA No. 264]; See also ¶3 of Gleason Declaration and Exhibit 2 thereto, Beghtol Deposition: 66:1-21 [ROA No. 266].)

Here, while Plaintiff has a complicated disciplinary record, as indicated above, Plaintiff has submitted evidence which suggests Defendant’s stated reasons for termination were manufactured. This evidence, in addition to temporal proximity, are relevant to establishing pretext, and requires balancing by the factfinder. (Arteaga v. Brink’s, Inc. (2008) 163 Cal.App.4th 327, 353-354.)

Of note, within the Reply, Defendant asserts the above argument is contrary to the allegations in the Complaint. (Reply: 5:28-6:15 [ROA No. 268].) Defendant correctly notes the Complaint alleges Plaintiff “reported patient safety issues relating to Defendants...barcoding procedures.” (¶107 and ¶123 of SAC [ROA No. 115].) However, as the Complaint earlier refences the alleged incident “where Plaintiff was accused of calling a nurse ‘stupid’ because he failed to plug in oxygen for a patient resulting in a fatality” and alleges Plaintiff met with Human Resources regarding the incident, the recommendation is to liberally construe the Complaint and find the theory encompassed therein. (See ¶47-¶49 of SAC [ROA No. 115].)

“In general, ‘new factual issues presented in opposition to a motion for summary judgment should be considered if the controlling pleading, construed broadly, encompasses them. In making this determination, courts look to whether the new factual issues present different theories of recovery or rest on a fundamentally different factual basis.” (Agustin v. Golden Empire Transit Dist. (2025) 116 Cal.App.5th 426, 443.) “[C]ourts are encouraged to take a liberal approach in

determining the scope of the pleadings, so long as those pleadings provide adequate notice to the opposing party of the theories on which relief is generally being sought.” (Jones v. Awad (2019) 39 Cal.App.5th 1200, 1211.)

Based on all the above, triable issues exist and the request to adjudicate Issues Nos. 3 through 12 are DENIED.

As noted by multiple California authorities, “many employment cases present issues of intent and motive, issues not determinable on paper” and “[s]uch cases ‘are rarely appropriate for disposition on summary judgment, however liberalized [summary judgment standards may] be.’” (Zamora v. Security Industry Specialists, Inc. (2021) 71 Cal.App.5th 1, 33; See also Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 286 and Hodges v. Cedars-Sinai Medical Center (2023) 91 Cal.App.5th 894, 904.)

Finally, Defendant challenges the Fifteenth through Twentieth Causes of Action, which allege various Labor Code violations, not specifically identified by Defendant in the motion.

In support of this portion of the motion, Defendant correctly notes that “premium pay” is a remedy for a failure to provide meal and rest breaks. (Naranjo v. Spectrum Security Services, Inc. (2022) 13 Cal.5th 93, 106-107; See also Donohue v. AMN Services, LLC (2021) 11 Cal.5th 58, 67.)

The legal argument offered by Defendant addresses only meal and rest breaks; however, meal and rest breaks are the basis, only, of Plaintiff’s Seventeenth and Eighteenth Causes of Action. (See ¶201, ¶203, ¶208 and ¶210 of SAC [ROA No. 115].)

Although not specified by Defendant, Defendant appears to rely on a testimony by Plaintiff, wherein he conceded that, when talking about “adding overtime to [his] time card” he was exclusively trying to add in the time for missed meal breaks [and] missed rest breaks.” (Defense Exhibit 1: Beghtol Deposition: 60:8- 13 [ROA No. 248].) Plaintiff also testified that, when referencing “on call duty” he was referring to having to answer the phone, while on meal and rest breaks. (Id. at 131:24-132:11.)

The above testimony is cited solely within SSUF No. 16, despite this fact making no reference to the above or otherwise asserting that all of Plaintiff’s claims arise from missed meal and rest breaks. (See SSUF No. 16 [ROA No. 258 (at p. 186 of PDF)].)

Additionally, Defendant made no effort to demonstrate that overtime, “on-call duty” and meal and rest breaks, are the sole basis of all Labor Code claims.

Per the Complaint, Plaintiff alleges Defendant failed to pay minimum wages and overtime wages, as it “failed to pay proper compensation for all hours worked, including time spent on mandatory education, time spent on on-call duty, time spent reporting to work but having their shifts cancelled or otherwise not being put to work, time worked during missed and/or interrupted meal periods as herein alleged, and/or time that was rounded to Defendant’s benefit without paying Plaintiff for actual time worked.” (¶180 of SAC [ROA No. 115]; See also ¶192 of SAC.) Following the above allegations, the Complaint asserts Defendant failed to provide accurate itemized wage statements and Plaintiff seeks waiting time penalties. (¶215 and ¶223 of SAC [ROA No. 115].)

Based on the above, as Defendant fails to address the entirety of Plaintiff’s allegations, the request for adjudication of the Fifteenth, Sixteenth, Nineteenth and Twentieth Causes of Action fails.

Finally, in seeking adjudication of the meal and rest break claims, Defendant relies on the following testimony from Plaintiff:

Q: When you were terminated, were you given, that day or within a couple of days, a final paycheck by Memorial?

A: They had one for me that day.

Q: Okay. And that paycheck was just to give you the money that was owed to you up, you know, through that pay period and your accrued PTO; correct?

A: Correct.

(Defense Exhibit 1: Beghtol Deposition: 197:8-16 [ROA No. 248].) Relying solely on the above, Defendant asserts Plaintiff conceded that he was paid “all of the money [Defendant] owed him.” (See SSUF No. 16 [ROA no. 258 (at p. 186 of PDF)].)

The cited deposition testimony does not clearly support Defendant’s position as Plaintiff was not asked whether he believed he was paid “all money owed to him,” relating to his Labor Code claims.

As noted by the Court in Turley v. Familian Corp. (2017) 18 Cal.App.5th 969, “to the extent that there is any ambiguity in the evidence, as Justice Chin colorfully put it, ‘the task of disambiguating ambiguous utterances is for trial, not for summary judgment.” (Id. at p. 978.) As explained by the Court in Scalf v. D.B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, “the cases are clear that summary judgment should not be granted on the basis of ‘tacit admissions or fragmentary and equivocal concessions.” (Id. at p. 1523.)

Additionally, in contrast to the above, Plaintiff testified that he “would clock out for the lunch period, even though [he] didn’t get one because they wouldn’t pay me my hours unless I clocked in and out for that lunch period.” (¶3 of Gleason Declaration and Exhibit 2 thereto, Beghtol Deposition: 274:13-24 [ROA No. 266].) Plaintiff also indicated that he would occasionally stay clocked in and then he “would manually put in a – a break.” (Id. at 275:19-24.)

The above testimony sufficiently indicates that Plaintiff was not paid for all meal and rest breaks, as required.

Thereafter, Defendant cites Donahue v. AMN Services, LLC (2021) 11 Cal.5th 58, in an apparent attempt to demonstrate it nonetheless fulfilled its requirements, regarding meal and rest breaks. Donahue explained that an employer satisfies its meal and rest break obligations “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....” (Id. at p. 67.) “[T]he employer is not obligated to police meal breaks and ensure no work thereafter is performed.” (Ibid.) “There is no meal period violation if an employee voluntarily chooses to work during a meal period after the employer has relieved the employee of all duty.” (Ibid.) “The voluntariness of an employee’s choice matters because ‘an

employer may not undermine a formal policy of providing meal breaks by pressuring employees to perform their duties in ways that omit breaks.” (Ibid.)

Here, Defendant seems to suggest that any missed meal and rest breaks were voluntary, given that Plaintiff signed a “Meal and Rest Rules Acknowledgment Form” in October of 2012. (¶3 of Angel Declaration [ROA No. 242] and Defense Exhibit 4, Requests for Admission at No. 4 [ROA No. 248].)

Defendant additionally cites deposition testimony where Plaintiff indicated he could not recall if anyone ever told him not to take a ten-minute rest period. (Defense Exhibit 1: Beghtol Deposition: 51:11-13 [ROA No. 248].)

However, Plaintiff expressly testified that his supervisors and managers required him to answer emergency calls during his meal and rest breaks. (¶3 of Gleason Declaration and Exhibit 2 thereto, Beghtol Deposition: 60:18-25 and 205:7-11 [ROA No. 266].) Plaintiff’s supervisor confirmed that Respiratory Therapists were required to carry their work-issued phone at all times, because people call for them for service. (¶5 of Gleason Declaration and Exhibit 4 thereto, Weber Deposition 178:10-179:7 [ROA No. 266].)

Defendant also offers the fact that “Plaintiff occasionally submitted missed meal and rest periods to Defendant’s timekeeping system, for which he was paid,” in an apparent attempt to demonstrate that all such missed breaks were compensated (See SSUF No. 18 [ROA No. 258 (p. 189 of PDF)]); however, the stated fact does not support this conclusion.

Finally, Defendant asserts that, at all relevant times, “Defendant gave Plaintiff an itemized wage statement every pay period.” (See SSUF No. 20 [ROA No. 258 (p. 217 of PDF)].) Defendant cites Exhibit 54, which purportedly consists of Plaintiff’s pay stubs from May 6, 2019, through to May 6, 2022. (¶50 of Gutierrez Declaration [ROA No. 246] and Exhibit 54 [ROA No. 248].)

Defendant does not address the fact that Labor Code section 226, the statute upon which Plaintiff’s Nineteenth Cause of Action arises, requires “an accurate itemized statement in writing....” (Lab. Code, § 226, subd. (a).)

Defendant offers no evidence to support the accuracy of the statements offered and, for the reasons stated above, a dispute as to the accuracy remains, given the dispute regarding whether Plaintiff was paid all premium wages owed.

Based on the above, summary adjudication of Issues Nos. 13 through 18 are DENIED.

In making the above ruling, the Court declined to consider new arguments which were asserted for the first time within the Reply or in unpermitted Supplemental Briefs.

“It is elementary that points raised for the first time in a reply brief are not considered by the court.” (Magic Kitchen LLC v. Good Things Intern. Ltd. (2007) 153 Cal.App.4th 1144, 1161.)

Additionally, the Court notes that the legal principles included within Husband v. Target Corp., ---Cal.Rptr.3d ----, 2026 WL 1430244, cited by Defendant within a Supplemental Brief filed on May 27, 2026, are not new. (Supplemental Brief: 2:2- 6 [ROA No. 274].)

Citing a 2008 case, the Husband Court noted: “An employer’s knowledge of an employee’s disability is a prerequisite to FEHA liability under any of those theories: An employer cannot discriminate against an employee on the basis of a disability if it does not know of that disability.” (Husband v. Target Corp., ---

Cal.Rptr.3d ----, 2026 WL 1430244, at p. 1, citing Avila v. Continental Airlines, Inc. (2008) 165 Cal.App.4th 1237, 1247.)

Citing a 2017 case, the Husband Court further explained: “Where, as here, neither the employee nor a third party has disclosed the employee’s mental disability, ‘knowledge’ of that disability ‘will only be imputed to the employer’ through its observation of the ‘underlying facts’ ‘when the fact of disability is the only reasonable interpretation of the known facts.’” (Husband v. Target Corp., ---

Cal.Rptr.3d ----, 2026 WL 1430244, at p. 5, citing Featherstone v. Southern California Permanente Medical Group (2017) 10 Cal.App.5th 1150, 1167.)

The above authority holds, essentially, that knowledge of a disability is required, prior to discrimination and retaliation – longstanding legal principles which Defendant could have raised prior to the opinion in Husband.

Defendant asks the Court to apply the above argument herein; however, Defendant offered no evidence relevant to its knowledge of Plaintiff’s condition. Indeed, none of Defendant’s statements of undisputed fact, address or touch on Defendant’s purported knowledge of a disability.

In Husband, it was undisputed that the plaintiff “never informed Target that he ha[d] bipolar disorder” and the sole question was whether Target should have inferred the existence of this disability, based on his behavior. (Husband v. Target Corp., ---Cal.Rptr.3d ----, 2026 WL 1430244, at p. 6.)

Here, in contrast, it is wholly unknown what Defendant knew or believed, with respect to Plaintiff’s condition. As indicated above, the sole evidence offered indicates Plaintiff informed Defendant he was suffering from “long-haul” COVID-19. While Defendant clearly takes the position that “long-haul” COVID- 19 does not qualify for disability protection, as noted above, Defendant offered no legal argument or authority to support this conclusion.

As the Court in Husband noted, where an employer moves for summary judgment, “the employer bears the initial burden to disprove an element of the plaintiff-employee’s prima facie case or to adduce evidence supporting a legitimate nondiscriminatory reason for its adverse employment action.” (Husband v. Target Corp., ---Cal.Rptr.3d ----, 2026 WL 1430244, at p. 6.) To the extent Defendant wished to challenge the element of knowledge, it was obligated to raise that argument and supply evidence thereon, within its initial motion.