Montoya v. Ronald Cunning DDS, Inc. CA4/1

Filed 12/13/24 Montoya v. Ronald Cunning DDS, Inc. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

CRYSTAL MONTOYA et al., D083774

Plaintiffs and Appellants,

v. (Super. Ct. No. CIVDS1932297)

RONALD CUNNING DDS, INC. et al.,

Defendants and Respondents.

APPEAL from a judgment of the Superior Court of San Bernardino County, Winston S. Keh, Judge. Affirmed. Kyle Todd for Plaintiffs and Appellants. Freeburg & Granieri and Christy Granieri for Defendants and Respondents.

MEMORANDUM OPINION

Appellants Crystal Montoya and Pearl Trejo are former employees of respondent Ronald Cunning DDS, Inc. (Cunning Dental). During the time they worked at Cunning Dental, Respondent Genaro Guerra worked there as well. Montoya and Trejo alleged that Guerra had always been inappropriately “touchy” with them. When Guerra was promoted to a director-level position in November 2018, the sexual harassment escalated. In early December 2018, Montoya and Trejo reported the harassment to human resources and then to the owner of the dental practice, Dr. Ronald Cunning. Montoya was told in early January 2019 that the matter was investigated and that “Guerra would be reprimanded.” Guerra then terminated both women later that same month. The reason given was layoffs due to office restructuring. According to respondents’ brief, Montoya and Trejo filed a Second Amended Complaint for Damages (the operative complaint) alleging a dozen causes of action, including claims under the California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.) based on sexual harassment and retaliation; a violation of California’s whistleblower retaliation statute (Lab. Code, § 1102.5); and various wage-and-hour claims. Cunning Dental and Guerra filed an Answer denying all allegations in the operative complaint and raising several affirmative defenses. As relevant here, in their eleventh affirmative defense, they asserted a “mixed motive” defense: “[E]ven if the jury finds that unlawful retaliation was a substantial factor motivating either Plaintiffs’ termination of employment, the same decision would have been made for legitimate business reasons.” Similarly, their thirteenth affirmative defense was a “same decision” defense: “[E]ven if Plaintiffs’ complaints about alleged illegal conduct were a contributing