Leyva v. Motorcar Parts of America CA2/7 ( 2023 )

Filed 4/20/23 Leyva v. Motorcar Parts of America CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
LEONEL LEYVA, B307525
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC718336)
v.
MOTORCAR PARTS OF
AMERICA, INC. et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Terry Green, Judge. Affirmed in part, reversed
in part, and remanded.
Lavi & Ebrahimian, N. Nick Ebrahimian, and Jordan D.
Bello for Plaintiff and Appellant.
Lawrence H. Stone; Jackson Lewis and Dylan B. Carp for
Defendants and Respondents.
_________________________
Leonel Leyva appeals from a judgment entered after the
trial court granted summary judgment in favor of Motorcar Parts
of America, Inc. (MPA), and its packing department manager
Fred Castillo. After Leyva took time off on an emergency basis to
care for his disabled father, MPA terminated Leyva, citing his
insubordination regarding Castillo’s reassignment of Leyva to a
different work task.
Leyva brought claims under the California Fair
Employment and Housing Act (FEHA; Gov. Code, § 12900 et
seq.)1 for disability-based associational discrimination, failure to
prevent discrimination and retaliation, intentional infliction of
emotional distress, and wrongful termination based on Leyva’s
association with his disabled father. Leyva also alleged
interference with his right to family care leave and retaliation for
his use of family care leave, in violation of the California Moore-
Brown-Roberti Family Rights Act (CFRA; §§ 12945.1, 12945.2).
The trial court granted summary judgment, finding Leyva failed
to establish a prima facie case of disability-based associational
discrimination; and Leyva’s CFRA claims failed because Leyva
declined to take protected leave.
On appeal Leyva contends he raised triable issues of fact
showing a prima facie case of associational discrimination and
MPA’s proffered reason for terminating Leyva (his
insubordination) was pretext for unlawful discriminatory animus.
Leyva also argues he raised a triable issue whether MPA
interfered with his rights under CFRA. We agree there are
triable issues and reverse.
1 All further undesignated statutory references are to the
Government Code.
2
FACTUAL AND PROCEDURAL BACKGROUND
A. Leyva’s Employment with MPA2
MPA operates an automotive parts distribution facility in
Torrance, California. MPA hired Leyva in March 1999 as a
general assembly worker. Leyva later worked as a machine
operator, and then in the packing department.
From 1999 until October 2015 Leyva received mostly
positive annual performance reviews, rating him “good” or
“competent” through 2003 (except for a “poor” rating in
attendance in March 2001), and mostly “commendable” in 2004
and 2005. In his October 2015 annual performance review, MPA
ranked Leyva as commendable in work quality and quantity,
safety habits, and job knowledge, and outstanding in absences,
but unsatisfactory in tardiness. In an October 2015 reference for
Leyva, human resources supervisor Monica Rivero described
Leyva as “a reliable, honest, and hard working individual.”
Castillo became Leyva’s supervisor in 2013. From that
time until December 2015, Castillo was satisfied with Leyva’s
performance. In 2015 Leyva began working as a “closer” in the
packing department, packaging orders for shipment. Leyva
worked under lead closer Fausto Palafox, who reported to
packing department lead Elizabeth Sanchez, who in turn
reported to Castillo. Castillo reported to chief manufacturing
officer Douglas Schooner.
Castillo required everyone in his department to sign in and
also punch in on the time clock at the start of a work shift.
2 The factual background is taken from evidence submitted
by the parties in connection with defendants’ motion for
summary judgment. We note where the facts are in dispute.
3
Castillo instituted the policy to ensure his employees were at
their workstations at the start of their shifts, and not “walking
all over the place.” According to Castillo, Leyva had been signing
in as required since 2013. However, on December 4, 2015 Leyva
refused to sign in for his shift. Castillo did not know why Leyva
suddenly refused to sign in, and he found Leyva’s refusal was
insubordinate. Castillo and Leyva met with human resources
safety and claims coordinator Elizabeth Ramirez to address the
sign-in issue. Castillo explained to Leyva that Leyva was
required to sign in, and Leyva agreed to sign in going forward.
Ramirez memorialized the meeting in an email to Castillo and
Schooner, a copy of which she placed in Leyva’s personnel file.
On February 1, 2016 Castillo spoke with Leyva about
Leyva’s failure to follow Sanchez’s directive to work on a specific
pallet. A copy of an email from Castillo to Ramirez
memorializing the conversation was placed in Leyva’s personnel
file.
On March 3, 2016 Palafox reported Leyva had used
profanity and insults toward him after he asked Leyva to work on
a packing list for outgoing orders. Leyva told Palafox he could
not do this because he had been asked by Sanchez to do other
work. After Palafox requested Sanchez to tell Leyva to work on
the packing list, Leyva called Palafox “an asshole” for “crying”
that Leyva did “not want to help” Palafox. A coworker overheard
the altercation. Castillo emailed Ramirez to report the incident
and to request that Leyva be written up.
In a December 16, 2016 email, Castillo informed Ramirez,
Sanchez, and Schooner that each day that week Leyva had left at
the end of his scheduled shift but “before the orders [were] closed”
without informing anyone he was leaving, which he was required
4
to do.3 Further, Leyva refused to follow directions from Palafox
to work on certain orders, and Castillo had “caught him going to
the bathroom 20 minutes before breaks and lunch.” Castillo had
filmed Leyva “not doing anything for an hour.” Castillo stated he
“would like to let [Leyva] go and have him replaced with someone
that can follow direction and do the hours needed to complete
orders for the day.”
On December 21 Leyva met with Castillo, Palafox, and
Sanchez regarding Leyva’s leaving work the prior week without
completing daily orders. Leyva said he did not think MPA
needed him to stay late that week because he had been allowed to
leave early on Monday of that week. Leyva was confrontational
but agreed to do “what is expected of him.” The next day
Ramirez, Schooner, and Castillo met with Leyva in Schooner’s
office.4 Leyva told them he had left at 2:30 p.m. (the end of his
scheduled shift) the prior week because he needed to be available
for his father, who was in the hospital. According to Leyva, his
father was suffering from serious health ailments, including
diabetes, lung and kidney disease, and prostate cancer. Leyva
said at the December 22 meeting that he had told a coworker
named Lupito to tell Castillo that Leyva was leaving early
because of his father. Castillo testified that Lupito never told
him that Leyva was leaving work early to take care of his sick
father, and Castillo did not learn this until the meeting.
3 Ramirez testified MPA required Leyva, as a closer, to work
mandatory overtime when necessary to complete the day’s orders.
4 Leyva testified human resources supervisor Monica Rivero
was also present at the meeting.
5
According to Schooner, MPA had considered disciplining
Leyva on December 21, but Leyva “was not reprimanded for that
time frame once [Ramirez, Schooner, and Castillo] found out
about his dad” at the December 22 meeting. Leyva was told to let
MPA know his needs and MPA would “work with [Leyva] on
that.” Ramirez offered to set up a meeting between Leyva and
Rivero “to discuss FMLA”5 if he needed time to take care of his
father. Leyva was also told to communicate with his manager
and the lead closer if he could not stay for overtime and to ask
Palafox before the scheduled end of the shift whether he needed
to stay late. On December 27 Ramirez wrote a memorandum to
Leyva’s file memorializing the December 22 meeting.
On December 28 Rivero met with Leyva to discuss family
care leave. Rivero informed Leyva he could take an unpaid leave
of absence to care for his father. Rivero “prepared FMLA
documents” and gave Leyva a leave of absence request form, a
vacation request form, and pamphlets on the California
Employment Development Department’s paid family leave
program.6 Leyva told Rivero “he had bills to pay” and so he
would not “actually [be] taking the FMLA [leave].” Rivero told
Leyva he could use vacation time instead to take time off when
necessary to visit his father.
5 FMLA refers to the Family and Medical Leave Act of 1993
(29 U.S.C. §§ 2601-2654), which contains provisions analogous to
CFRA. (Rogers v. County of Los Angeles (2011) 198 Cal.App.4th
480, 487; Dudley v. Department of Transp. (2001) 90 Cal.App.4th
255, 261.)
6 At his deposition, Leyva could not remember whether
Rivero shared any paperwork with him at the meeting.
6
B. Leyva Takes Time Off To Care for His Father
Leyva was aware that MPA had a process for requesting
time off. He was required to inform his supervisor (Castillo) and
to inform Rivero or Ramirez in human resources. In late 2016
and early 2017 Leyva took three days off work using his accrued
vacation time to care for his father during medical emergencies.
Leyva testified that his father was hospitalized from
December 22, 2016 until December 25 or 26, 2016. Leyva took
December 27 off from work and submitted a written time off
request on January 4, 2017, which Castillo approved the same
day. Leyva’s father was again hospitalized from January 22
through 25. Leyva took January 23 off from work and submitted
a written time off request two days later, which Castillo again
approved. Leyva then took February 17 off from work and
submitted a written time off request on February 27, which
Castillo approved the same day.7 None of Leyva’s time off
requests was denied. When Leyva was absent, Castillo worked
around the staffing shortage by “grab[bing] somebody from the
cell [to] help me out at the end of the . . . shift.”
In each instance, on the same day Leyva learned of his
father’s medical emergency, Leyva informed Castillo he would be
absent that day. Leyva testified he told Castillo each time that
he had to take time off to care for his father, and Castillo told him
to speak with human resources. Leyva could tell Castillo was
“annoyed” by the “angry” look on Castillo’s face when he asked for
time off, as well as his body language in that “sometimes [Leyva]
was talking to him and then he would turn his back and leave.”
7 Leyva also took a sick day on February 21, 2017, which
Castillo approved on February 27.
7
Leyva explained further that Castillo would give him “an upset
stare. Like his face and then he would turn around and leave me
talking to myself. Like it was disrespectful.”
C. Leyva’s Termination
On February 27, 2017 (the same day Castillo approved
Leyva’s third request for time off to care for his father), Castillo
informed Leyva he would be moving to a different work area to
train for a different task—instead of packing alternators, Leyva
would pack wheel hubs. Leyva became upset and responded that
he did not remember how to do it. According to Castillo, Leyva
threatened to sue if he was moved. Castillo and Leyva met with
Rivero to discuss Leyva’s refusal to change positions. Rivero
summarized the meeting in a memorandum to Leyva’s file.
According to the memorandum, during the meeting Leyva
asserted Castillo was only moving him because he had “been out”
to care for his father. Castillo said the move was due to
production necessities, not Leyva’s absences. Rivero informed
Leyva he was “simply being moved within his department to
perform different tasks,” that reassignment was standard
practice for training and meeting production requirements, and
Leyva’s refusal was insubordination. According to Rivero and
Castillo, Leyva then requested to be transferred to the quality
control department. Rivero told Leyva to continue working in
packing until his transfer request was approved. Leyva denied
that he ever asked for a transfer.
According to Castillo, closers underwent cross-training for
different tasks when needed, and Castillo had requested at least
two other closers change tasks in the packing department in or
around February 2017. Castillo had no particular reason for
8
choosing Leyva for the reassignment rather than another
employee. Palafox testified, however, that he never saw Castillo
ask any of the other closers who reported to Palafox to go work or
train in a different department.
The parties dispute the events of February 28, 2017. Leyva
testified he reported to work at around 6:00 a.m. as scheduled
and performed packing and shipping work for about an hour. At
around 7:00 a.m. the head of security, Jaime Galvan, approached
Leyva and told him that Castillo had ordered him to remove
Leyva from the worksite. After Galvan escorted him outside,
Leyva waited around to discuss the situation with Rivero or
Ramirez. At around 8:30 or 9:00 a.m. Leyva saw Rivero and
Ramirez arriving to work and approached them. Leyva asked
them why Castillo had “taken [him] out of the company” and
requested to speak with Schooner. Rivero and Ramirez did not
know why Leyva was removed and told Leyva to return in the
afternoon to meet with Schooner.8
Castillo testified that on the morning of February 28
between 6:00 and 7:00 a.m. Sanchez called Castillo and reported
Leyva was not engaging in training for his newly assigned tasks,
and instead was standing with his hands in his pockets and was
not picking up boxes. Castillo told Sanchez to direct Leyva to
train. A few minutes later, Castillo called Sanchez for an update.
Sanchez replied that Leyva told her he was working but
continued to stand with his arms crossed. This was why Castillo
directed Galvan to escort Leyva outside. Castillo also contacted
Schooner to tell him what was happening and filed an incident
8 Rivero denied she spoke with Leyva on the morning of
February 28, 2017.
9
report. Sanchez also submitted an incident report that day
stating she observed Leyva “not working.” Palafox likewise
submitted an incident report stating Leyva did not work in his
department, but he observed Leyva standing “with his arms
crossed.”
Ramirez first learned from Galvan that Leyva had been
escorted from the building for refusing to work. When Ramirez
arrived to work sometime before 9:00 a.m., she saw Leyva
waiting in the parking lot. She brought Leyva into her office.
Leyva told Ramirez he did not want to work in packing and the
quality control department had approved his transfer. Ramirez
“explained the transfer process” to Leyva and “asked him to go
back to his workstation several times.” Leyva responded, “‘If you
don’t transfer me, then fire me.’” Ramirez explained that if
Leyva walked off the job, this would be treated as his resignation,
and she urged him to return to his workstation. Leyva told
Ramirez he was leaving, but he asked Ramirez to set up a
meeting with Schooner. Ramirez wrote a memorandum to
Leyva’s file summarizing the meeting.
Later that day Rivero, Ramirez, and Schooner met to
discuss Leyva.9 Rivero testified that she told Schooner what had
happened the prior day and that morning, and in response
Schooner stated he was “‘making the decision to terminate
Mr. Leyva.’” Schooner instructed Rivero and Ramirez to prepare
termination paperwork and a final paycheck.
At around 3:00 p.m. that afternoon, Leyva met with
Schooner, Castillo, Rivero, and Ramirez in Schooner’s office.
9 Rivero could not remember whether the discussion took
place in person or by phone or email.
10
According to Leyva, Schooler said, “‘You’re fired,’” but he did not
give an explanation. At that point Rivera provided Leyva a
check, and Leyva said “‘thank you.’” Leyva left without asking
why he was being terminated. Schooner testified that Leyva was
told he was insubordinate for refusing to work and Schooner
would not “transfer a problem to another department.” According
to Rivero, Schooner told Leyva he needed to follow directions and
move to another area to meet the company’s needs.
Castillo testified Leyva resigned. Similarly, Schooner in
his deposition denied making any decision to terminate Leyva
and testified Leyva “self-terminated,” in that “[h]e refused to
work and he quit.” However, Leyva’s final paycheck indicated
Leyva’s employment ended due to “involuntary termination,” and
MPA issued a termination notice to Leyva, signed by Castillo,
stating Leyva was dismissed involuntarily for “insubordination.”
D. Leyva’s Complaint
On August 17, 2018 Leyva filed this action against MPA
and Castillo alleging, among other things, MPA terminated him
because of his association with his disabled father and in
retaliation for his use of medical leave. Leyva’s operative first
amended complaint alleged causes of action against MPA for (1)
associational discrimination in violation of FEHA based on
disability; (2) failure to prevent discrimination and retaliation; (3)
interference with his right to leave in violation of CFRA; (4)
retaliation in violation of CFRA based on his request for or use of
medical leave; (5) wrongful termination in violation of public
policy; and (6) intentional infliction of emotional distress. Only
Leyva’s sixth cause of action for intentional infliction of emotional
distress was alleged against Castillo.
11
Leyva alleged MPA interfered with his rights under CFRA
by refusing to provide protected leave, failing to designate his
time off as protected leave, and failing to reinstate him after his
leave ended. As to his wrongful termination claim, Leyva alleged
MPA violated the public policies embodied in FEHA and CFRA.
E. Defendants’ Motion for Summary Judgment
On November 20, 2019 MPA and Castillo filed a motion for
summary judgment or, in the alternative, summary adjudication.
In support of their motion, defendants submitted deposition
testimony, declarations, and other evidence relating to Leyva’s
employment and time off. Defendants argued Leyva’s
discrimination claim failed because Leyva was not qualified for
his position given his history of insubordination; Leyva could not
establish MPA was motivated to terminate Leyva due to his
father’s disability because his insubordination predated his time
off to care for his father; and MPA had a legitimate,
nondiscriminatory business reason for its actions, namely,
Leyva’s insubordination, which Leyva could not show was
pretextual.
As to Leyva’s CFRA interference claim, defendants argued
Leyva declined to take the protected leave of absence MPA
offered to him and received the time off he requested. Leyva’s
CFRA retaliation claim failed because Leyva could not show he
engaged in protected activity or establish MPA’s termination of
Leyva was caused by his protected activity because Leyva
declined to take the CFRA leave offered to him and MPA
approved his requests for time off. Further, MPA had a
legitimate, nondiscriminatory business reason for its actions,
namely, Leyva’s insubordination, which Leyva could not show
12
was pretextual. Leyva’s claim for wrongful termination failed
because MPA did not violate FEHA or CFRA in terminating
Leyva. Leyva’s intentional infliction of emotional distress claim
failed because without an actionable discrimination or retaliation
claim, Leyva could not show defendants’ conduct was extreme or
outrageous. Defendants also moved for summary adjudication of
Leyva’s request for punitive damages, arguing Leyva could not
show by clear and convincing evidence any officer, director, or
managing agent of MPA engaged in or authorized conduct
constituting oppression, fraud, or malice.
Defendants attached copies of Leyva’s approved time off
requests from December 2016 through February 2017 and
memoranda to Leyva’s employment file. Defendants attached
excerpts from the deposition testimony of Schooner, Castillo,
Rivero, and Ramirez and declarations by Ramirez, Sanchez,
Palafox, Galvan, and others. Defendants also submitted excerpts
from Leyva’s November 15, 2017 deposition in a workers’
compensation matter, in which Leyva testified he believed his
supervisor was upset when he asked for time off because “[h]e
would never talk” to Leyva but would send him to speak with
human resources. Asked “did anyone tell you that you were
taking too many times off work in the last month,” Leyva
responded, “Yes. My supervisor.” Asked exactly what the
supervisor told Leyva, Leyva stated, “That I was missing too
much.” When he was again asked exactly what the supervisor
said, Leyva responded, “No. He didn’t tell me anything, but due
to his behavior” of always watching Leyva’s work, Leyva believed
his supervisor was upset when he asked for time off. Leyva was
again asked whether his supervisor “actually approached [Leyva]
13
and said that he wasn’t happy with your absence.” Leyva replied,
“No. He never approached me.”
In his opposition, Leyva argued there were disputed
questions of material fact whether MPA terminated him based on
his father’s disability or in retaliation for taking medical leave
under CFRA. Leyva submitted excerpts from the depositions of
Castillo and Palafox, which he asserted showed Castillo singled
him out for disparate treatment by reassigning him to a different
department on February 27, 2017. Leyva also submitted excerpts
from his April 18, 2019 deposition in this action, in which Leyva
testified Castillo came to Leyva’s work area on February 27 and
told Leyva that “he was maybe going to fire me because of the
days that I was requesting frequently to go and take care of my
father about the cancer and all the other illnesses.” Leyva
argued Castillo’s statements constituted direct evidence of
discriminatory animus, and further, the timing of his termination
one day after Castillo approved his third emergency request for
time off to care for his father showed MPA’s proffered
nondiscriminatory reason for termination was pretextual.
Further, Leyva was a 17-year employee of MPA with
predominantly positive performance reviews. Castillo’s negative
response to Leyva’s requests for time off showed pretext. MPA’s
narrative regarding Leyva’s termination was inconsistent and
implausible, alternately characterizing the end of Leyva’s
employment as a resignation and a termination. Leyva also
disputed he ever requested a transfer or refused to work. Leyva
asserted MPA interfered with his rights under CFRA by
terminating him for requesting or taking protected leave and by
failing to inform him in writing of his rights under CFRA. As to
his intentional infliction of emotional distress claim, Leyva
14
argued triable issues existed whether defendants’ outrageous
conduct caused Leyva severe emotional distress.
Leyva submitted MPA’s response to a form interrogatory,
in which defendants admitted Leyva was terminated, but in
explaining the reasons for the termination, stated Leyva
“resigned his employment on February 28, 2017.” MPA’s
response also described how Leyva was “insubordinate” in that he
refused to cross-train or to return to work. MPA admitted that
Castillo, Rivero, and Schooner provided information relied upon
in the termination decision.
In their reply,10 defendants argued Leyva had not raised a
triable issue of fact whether Castillo told Leyva he may be fired
for taking too much time off in light of Leyva’s earlier deposition
testimony in the workers’ compensation matter that Castillo
“never made any comments to him about missing time from work
to care for his father.” Defendants argued Leyva could not
contradict his earlier deposition testimony to avoid summary
judgment, citing D’Amico v. Board of Medical Examiners
(1974) 11 Cal.3d 1, 21-22.
F. The Trial Court’s Ruling
After a hearing, on February 20, 2020 the trial court
granted summary judgment in favor of defendants. The court
ruled Leyva’s claim for associational discrimination under FEHA
failed because Leyva had not shown a prima facie case for relief.
The court reasoned the proximity in time between Leyva’s time
off to care for his father and MPA’s decision to terminate Leyva
10 On our own motion we augment the record to include
defendants’ January 31, 2020 reply in support of motion for
summary judgment. (Cal. Rules of Court, rule 8.155(a)(1)(A).)
15
“proves nothing here” because Leyva “only took vacation which
was already part of his employment bargain.” The court found
Leyva had failed to “explain[ ] what Defendants had to gain by
firing him which they wouldn’t gain by firing anyone else who
took vacation.” The court dismissed Leyva’s “speculations about
the meaning behind Castillo’s facial expressions.” The court
found Leyva’s deposition testimony that Castillo approached him
and told him he might be fired for taking time off did not create a
triable issue of fact because Castillo did not “actually fire[ ]”
Leyva (Schooner did), the comment by Castillo was “something
out of caricature” in “mirroring the language used to set forth an
element of this claim,” and in Leyva’s earlier deposition taken in
his workers’ compensation case, Leyva denied Castillo said
anything to him about taking time off. For this reason the court
disregarded Leyva’s deposition testimony.
The trial court found Leyva’s claims for interference and
retaliation in violation of CFRA failed because Leyva declined to
take protected leave. The court concluded Leyva’s claims for
wrongful termination, intentional infliction of emotional distress,
and failure to prevent discrimination and retaliation also failed
because the claims were derivative of his other claims.
On May 22, 2020 the trial court entered judgment for
defendants. Leyva timely appealed.
16
DISCUSSION
A. Standard of Review on Summary Judgment
Summary judgment is appropriate only if there are no
triable issues of material fact and the moving party is entitled to
judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c);
Regents of University of California v. Superior Court (2018)
4 Cal.5th 607, 618; Doe v. Roman Catholic Archbishop of Los
Angeles (2021) 70 Cal.App.5th 657, 668.) “‘“‘“We review the trial
court’s decision de novo, considering all the evidence set forth in
the moving and opposing papers except that to which objections
were made and sustained.”’ [Citation.] We liberally construe the
evidence in support of the party opposing summary judgment and
resolve doubts concerning the evidence in favor of that party.”’”
(Hampton v. County of San Diego (2015) 62 Cal.4th 340, 347;
accord, Doe, at p. 669; Sabetian v. Exxon Mobil
Corporation (2020) 57 Cal.App.5th 1054, 1068.)
A defendant moving for summary judgment has the initial
burden of presenting evidence that a cause of action lacks merit
because the plaintiff cannot establish an element of the cause of
action or there is a complete defense. (Code Civ. Proc., § 437c,
subd. (p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th
826, 853; Sabetian v. Exxon Mobil Corporation, supra,
57 Cal.App.5th at p. 1068.) If the defendant satisfies this initial
burden, the burden shifts to the plaintiff to present evidence
demonstrating there is a triable issue of material fact. (Code Civ.
Proc., § 437c, subd. (p)(2); Aguilar, at p. 850; Sabetian, at
p. 1069.) “The plaintiff . . . shall not rely upon the allegations or
denials of its pleadings to show . . . a triable issue of material fact
exists but, instead, shall set forth the specific facts showing that
17
a triable issue of material fact exists.” (Code Civ. Proc., § 437c,
subd. (p)(2); accord, Roman v. BRE Properties, Inc. (2015)
237 Cal.App.4th 1040, 1054 [“It is fundamental that to defeat
summary judgment a plaintiff must show ‘specific facts’ and
cannot rely on allegations of the complaint.”]; Regional Steel
Corp. v. Liberty Surplus Ins. Corp. (2014) 226 Cal.App.4th 1377,
1388.)
In evaluating claims of discrimination under FEHA,
California courts apply the burden-shifting approach set forth in
McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792. (Harris
v. City of Santa Monica (2013) 56 Cal.4th 203, 214; Guz v. Bechtel
National, Inc. (2000) 24 Cal.4th 317, 354 (Guz).) The same
approach is applied in evaluating claims of retaliation under
FEHA and CFRA. (Yanowitz v. L’Oreal USA, Inc. (2005)
36 Cal.4th 1028, 1042 [applying McDonnell Douglas burden-
shifting to claim of retaliation under FEHA]; Bareno v. San Diego
Community College Dist. (2017) 7 Cal.App.5th 546, 560 [“CFRA
retaliation claims . . . are subject to the McDonnell Douglas
burden-shifting analysis [citation].”].)
Under this approach, if the plaintiff establishes a prima
facie case supporting his or her discrimination or retaliation
claim, the burden shifts to the employer to rebut the presumption
of discrimination or retaliation by offering a legitimate,
nondiscriminatory reason for the adverse employment action.
(Harris v. City of Santa Monica, supra, 56 Cal.4th at p. 214; Guz,
supra, 24 Cal.4th at p. 355.) An employer may meet its initial
burden in moving for summary judgment or adjudication of an
employment discrimination or retaliation cause of action by
presenting evidence that one or more elements of a prima facie
case is lacking, or the employer acted for a legitimate,
18
nondiscriminatory reason. (Husman v. Toyota Motor Credit
Corp. (2017) 12 Cal.App.5th 1168, 1181; Featherstone v. Southern
California Permanente Medical Group (2017) 10 Cal.App.5th
1150, 1158; Soria v. Univision Radio Los Angeles, Inc. (2016)
5 Cal.App.5th 570, 591 (Soria).) A legitimate, nondiscriminatory
reason is one that is unrelated to the prohibited bias and, if true,
would preclude a finding of discrimination or retaliation. (Guz,
at p. 358.) “[I]f nondiscriminatory, [the employer’s] true reasons
need not necessarily have been wise or correct. [Citations.]
While the objective soundness of an employer’s proffered reasons
supports their credibility . . . , the ultimate issue is simply
whether the employer acted with a motive to discriminate
illegally.” (Ibid.)
If the employer satisfies its initial burden, the burden
shifts to the plaintiff to present evidence creating a triable issue
of fact showing the employer’s stated reason was a pretext for
unlawful animus in order to avoid summary judgment or
adjudication. (Husman v. Toyota Motor Credit Corp., supra,12 Cal.App.5th at p. 1182; Featherstone v. Southern California
Permanente Medical Group, supra, 10 Cal.App.5th at pp. 1158-
1159; Soria, supra, 5 Cal.App.5th at p. 591.) “The plaintiff’s
evidence must be sufficient to support a reasonable inference that
discrimination [or retaliation] was a substantial motivating
factor in the decision. [Citations.] The stronger the employer’s
showing of a legitimate, nondiscriminatory reason, the stronger
the plaintiff’s evidence must be in order to create a reasonable
inference of a discriminatory [or retaliatory] motive.”
(Featherstone, at p. 1159; see Soria, at p. 591 [plaintiff must
produce “‘“substantial responsive evidence” that the employer’s
showing was untrue or pretextual’”].)
19
To meet his or her burden, the plaintiff may present
evidence showing the stated reason by the employer was
“unworthy of credence” as circumstantial evidence of pretext.
(Guz, supra, 24 Cal.4th at p. 361; see Reeves v. Sanderson
Plumbing Products, Inc. (2000) 530 U.S. 133, 147 [“In
appropriate circumstances, the trier of fact can reasonably infer
from the falsity of the explanation that the employer is
dissembling to cover up a discriminatory purpose.”].) However,
in order to prevail, a plaintiff must present evidence to support a
rational inference that intentional discrimination or retaliation,
“on grounds prohibited by the statute, was the true cause of the
employer’s actions.” (Guz, at p. 361, italics omitted; accord, Serri
v. Santa Clara University (2014) 226 Cal.App.4th 830, 863 [“‘“the
[employee] must demonstrate such weaknesses, implausibilities,
inconsistencies, incoherencies, or contradictions in the employer’s
proffered legitimate reasons for its action that a reasonable
factfinder could rationally find them ‘unworthy of credence’”’”].)
B. Leyva Raised a Triable Issue of Fact as to His FEHA
Disability Discrimination Claim
FEHA prohibits an employer from subjecting an employee
to an adverse employment action based on the employee’s
protected status, including his or her physical disability.
(§ 12940, subd. (a).) FEHA defines a “physical disability” to
include “a perception . . . that the person is associated with a
person who has, or is perceived to have” a physical disability.
(§ 12926, subd. (o).) “Accordingly, when FEHA forbids
discrimination based on a disability, it also forbids discrimination
based on a person’s association with another who has a
disability.” (Castro-Ramirez v. Dependable Highway Express, Inc.
20
(2016) 2 Cal.App.5th 1028, 1036 (Castro-Ramirez); accord, Rope
v. Auto-Chlor System of Washington, Inc. (2013) 220 Cal.App.4th
635, 656-657 (Rope), superseded by statute on another ground.)
To prevail on his FEHA disability discrimination claim,
Leyva needed to show “(1) he 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; accord,
Castro-Ramirez, supra, 2 Cal.App.5th at p. 1037.) “Adapting this
framework to the associational discrimination context, the
‘disability’ from which the plaintiff suffers is his or her
association with a disabled person.” (Castro-Ramirez, at p. 1037;
see Rope, supra, 220 Cal.App.4th at p. 658.) As to a
discriminatory motive, “the disability must be a substantial
factor motivating the employer’s adverse employment action.”
(Castro-Ramirez, at p. 1037.) It is undisputed Leyva has shown
an association with a disabled person—his ailing father.
However, the parties disagree as to whether Leyva has shown his
association with his disabled father was a substantial factor
motivating MPA’s termination of Leyva’s employment.
MPA argues Leyva has failed to prove a prima facie case of
associational discrimination because he has not shown
circumstances suggesting MPA had any motive to discriminate
against him as a non-disabled employee for his association with
his disabled father. MPA asserts there is no evidence of animus
given that Leyva used accrued vacation time to care for his
father, imposing no greater burden than any other similarly
situated employee using vacation time. We are not persuaded.
21
A plaintiff may make out a prima facie case of disability-
based associational discrimination by submitting evidence “‘the
employer [had] a motive to discriminate against a nondisabled
employee who is merely associated with a disabled person,’” for
example, by showing the employer viewed the employee’s
association as an expense, a distraction, or a disability by
association. (Castro-Ramirez, supra, 2 Cal.App.5th at pp. 1041-
1042; see Rope, supra, 220 Cal.App.4th at p. 657.) Leyva raised a
triable issue of fact whether Castillo, and through him MPA,
viewed Leyva’s need for time off to care for his father as a
distraction and an inconvenience. (See Castro-Ramirez, supra,
2 Cal.App.5th at p. 1043 [evidence employee’s supervisor refused
to schedule employee’s routes to allow him to administer his son’s
dialysis raised reasonable inference supervisor “wanted to avoid
the inconvenience and distraction” posed by employee’s need to
care for his disabled son]; Rope, supra, 220 Cal.App.4th at p. 658
[evidence employer terminated employee two days before he was
scheduled to take paid leave to donate kidney to his physically
disabled sister supported reasonable inference employer “acted
preemptively to avoid an expense stemming” from employee’s
association].)
Leyva’s time off requests, though processed and approved
as requests to use paid accrued vacation time, were made on an
emergency basis and on the same day as the requested time off.
Leyva took time off three times in the three months before his
termination on an emergency basis. Further, there was evidence
the last minute requests placed a burden on MPA. While
Castillo’s December 16, 2016 email to Schooner, Ramirez, and
others, in which Castillo requested to replace Leyva with
“someone that can follow direction and do the hours needed to
22
complete orders for the day,” predated Castillo’s knowledge that
Leyva’s absences were to help care for his father, the email
nonetheless provides evidence of the burden Leyva’s need for
time off imposed on operations. Castillo’s complaint that Leyva’s
coworkers were “complaining of picking up his part of the work”
illustrates the inconvenience caused by Leyva’s need for time off
on an emergency basis. In addition, when Leyva was absent,
Castillo had to rearrange labor on the work floor by “grab[bing]
somebody from the cell [to] help [Castillo] out at the end of the
. . . shift.” And Schooner testified MPA was “short people” at the
time Leyva was terminated, supporting an inference MPA was
also short staffed while Leyva was requesting emergency time off
just days and weeks earlier. In addition, the temporal proximity
between Leyva’s time off requests and MPA’s termination
decision (on the day after Castillo approved Leyva’s third
emergency request for time off to care for his father), provides
further support for Leyva’s prima facie case. (Doe v.
SoftwareONE Inc. (2022) 85 Cal.App.5th 98, 111; Arteaga v.
Brink’s, Inc. (2008) 163 Cal.App.4th 327, 353 [“the temporal
proximity between an employee’s disclosure of his symptoms and
a subsequent termination may satisfy the causation requirement
at the first step of the burden-shifting process”].)
MPA contends that even if Leyva showed a prima facie case
of associational discrimination, he has not shown MPA’s
proffered legitimate, non-discriminatory business reason for the
termination (Leyva’s insubordination) was pretext for
discriminatory animus. Leyva argues he has raised a triable
23
issue of pretext11 based on Castillo’s singling Leyva out for
reassignment on the same day Castillo approved Leyva’s third
emergency request for time off to care for his father (the day
before MPA terminated Leyva), Leyva’s testimony he was
working as usual on the day of his termination when he was led
out of the building by security at Castillo’s order, and the MPA
decision makers’ differing accounts as to whether Leyva resigned
or was fired. Leyva has the better argument.
MPA argues Leyva’s testimony that Castillo was visibly
annoyed and angry each time Leyva requested emergency time
off to care for his father does not create a triable issue of fact with
respect to pretext because Leyva’s statements as to Castillo’s
state of mind are speculative. Leyva testified Castillo looked
angry and turned his back on Leyva while Leyva was still
speaking. This testimony describing how Castillo looked when
Leyva made a time off request was admissible as a lay opinion to
show Castillo was angered by Leyva’s requests. (See People v.
Seumanu (2015) 61 Cal.4th 1293, 1309-1311 [percipient witness’s
testimony his cellmate “remained silent and did not appear
angry” when asked to take blame for defendant’s crimes was
proper lay opinion evidence]; People v. DeHoyos (2013) 57 Cal.4th
79, 130 [“A lay witness generally may not give an opinion about
11 Because we conclude Leyva raised a triable issue of fact
whether MPA’s proffered reason for terminating him was pretext,
we do not reach Leyva’s argument under D’Amico, supra,
11 Cal.3d 1 that the trial court erred in disregarding Leyva’s
direct evidence of discriminatory animus—Leyva’s deposition
testimony that the day before his termination Castillo told him
that Castillo might have him fired for taking time off—because it
was inconsistent with Leyva’s prior deposition testimony.
24
another person’s state of mind, but may testify about objective
behavior and describe behavior as being consistent with a state of
mind.”]; Osborn v. Mission Ready Mix (1990) 224 Cal.App.3d 104,
113 [“[A] lay witness may express an opinion that a person was
‘drunk’ [citation], or that people engaged in a discussion were
‘angry’ [citation], or that an impact was strong enough to jar a
passenger from a seat [citation], or that someone appeared to be
‘trying to break up a fight.’”]; see also Evid. Code, § 800 [“If a
witness is not testifying as an expert, his testimony in the form of
an opinion is limited to such an opinion as is permitted by law,
including but not limited to an opinion that is: (a) Rationally
based on the perception of the witness; and (b) Helpful to a clear
understanding of his testimony.”].) Thus, a reasonable jury could
find from Leyva’s testimony that Leyva’s emergency time off
requests angered Castillo.
Leyva’s evidence that Castillo singled Leyva out among
MPA’s packing department closers for reassignment the day
before Leyva’s termination further supports Leyva’s position
Castillo viewed Leyva’s time off needs as a burden. Although
Castillo testified he had requested at least two other closers to
change tasks in or around February 2017, Palafox, who was the
only lead closer in the packing department, testified he had never
seen Castillo ask any of the closers who reported to Palafox to
work or train in a different department. Further, Castillo
testified he had no particular reason for choosing Leyva for the
reassignment instead of another employee. Thus, there is a
triable issue of fact whether Castillo’s request that Leyva change
tasks was standard practice or targeted to provoke Leyva into
giving Castillo a reason to terminate him for his time off
requests. (See Castro-Ramirez, supra, 2 Cal.App.5th at p. 1043
25
[triable issue of pretext where supervisor “engineered a situation
in which plaintiff would refuse to work the shift, giving [the
supervisor] reason to terminate him”].)
We reject MPA’s argument Castillo’s conduct is irrelevant
because Schooner, not Castillo, made the ultimate decision to
terminate Leyva. “[A] plaintiff ‘need not demonstrate that every
individual who participated in the failure to hire [or terminate]
him shared discriminatory animus.’ [Citation.] Rather, ‘showing
that a significant participant in an employment decision
exhibited discriminatory animus is enough to raise an inference
that the employment decision itself was discriminatory, even
absent evidence that others in the process harbored such
animus.’” (Abed v. Western Dental Services, Inc. (2018)
23 Cal.App.5th 726, 743 [supervisor’s discriminatory animus
could be imputed to employer where supervisor falsely told
plaintiff that employer had no job openings, and supervisor was
involved in hiring process, although she had no hiring authority];
accord, Reid v. Google, Inc. (2010) 50 Cal.4th 512, 542 [“‘If [the
formal decision maker] acted as the conduit of [an employee’s]
prejudice—his cat’s paw—the innocence of [the decision maker]
would not spare the company from liability.’”]; Cornell v. Berkeley
Tennis Club (2017) 18 Cal.App.5th 908, 937 [animus of private
club’s general manager toward plaintiff was properly imputed to
employer where manager discussed events precipitating
termination with decision makers and was present at plaintiff’s
termination]; Reeves v. Safeway Stores, Inc. (2004)
121 Cal.App.4th 95, 100, 113 [reversing summary judgment for
employer where evidence raised triable issues of fact whether
decision maker’s action was induced by retaliatory motives of
intermediate managers].)
26
Leyva presented evidence from which a trier of fact
reasonably could infer Castillo influenced MPA’s decision to
terminate Leyva. Castillo directly participated in the decision to
terminate Leyva in several ways. Castillo, not Schooner, ordered
security to remove Leyva from his workstation the day Leyva was
terminated. And on the same day Castillo conferred with
Schooner by phone regarding the termination decision, then
participated in the meeting with Schooner, Ramirez, Rivero, and
Leyva. Further, Castillo, not Schooner, signed the termination
notice MPA issued to Leyva. In addition, defendants admitted in
response to a form interrogatory that Castillo provided
information relied upon in the termination decision. And
Schooner denied ordering Leyva be fired.
MPA’s contention that Leyva forfeited this argument by
failing to raise the “cat’s paw doctrine” in the trial court lacks
merit. Although Leyva did not use the words “cat’s paw” below,
he adequately argued and submitted evidence Castillo harbored
discriminatory animus and influenced MPA’s termination
decision.
Finally, the parties dispute the events of February 28,
2017, the day on which MPA terminated Leyva. Leyva testified
he reported to work at around 6:00 a.m. that day as scheduled
and performed packing and shipping work for about an hour
before Galvan removed him from the worksite at Castillo’s order.
MPA’s witnesses testified Leyva was taken to another
department to train in newly assigned duties, but Leyva refused
to work and was therefore ejected from the worksite. If the jury
were to believe Leyva’s version of events that he was not
insubordinate in refusing to work on February 28, that would
27
tend to show MPA’s proffered reason for terminating Leyva was
pretextual.
Considering Leyva’s evidence of pretext together with the
close temporal proximity between Leyva’s use of time off to care
for his father and MPA’s termination of his employment on the
day after he submitted his third time off request for approval,
Leyva has raised a triable issue of fact whether MPA’s proffered
reason for terminating him was pretext for disability-based
associational discrimination under FEHA. Accordingly, we
reverse the trial court’s order granting summary adjudication of
Leyva’s FEHA discrimination claim.12
C. Leyva Raised a Triable Issue of Fact as to His CFRA
Interference Claim
CFRA “‘is intended to give employees an opportunity to
take leave from work for certain personal or family medical
reasons without jeopardizing job security.’” (Soria, supra,
5 Cal.App.5th at p. 600; accord, Moore v. Regents of University of
California (2016) 248 Cal.App.4th 216, 233.) CFRA provides that
a qualified employee of an employer with five or more employees
may take up to 12 weeks of family care and medical leave in any
12-month period. (§ 12945.2, subds. (a), (b)(3)(A).)
12 Because we conclude the motion for summary judgment
was not properly granted, we analyze each cause of action
separately with respect to defendants’ motion for summary
adjudication. Defendants concede Leyva’s second cause of action
for failure to prevent discrimination and retaliation under FEHA
survives summary adjudication if there is a triable issue of fact
as to Leyva’s underlying FEHA associational discrimination
claim. There is.
28
Under CFRA, it is “an unlawful employment practice for an
employer to interfere with, restrain, or deny the exercise of, or
the attempt to exercise, any right provided under this section.”
(§ 12945.2, subd. (q); Cal. Code Regs., tit. 2, § 11094, subd. (b).)
“A CFRA interference claim ‘“consists of the following elements:
(1) the employee’s entitlement to CFRA leave rights; and (2) the
employer’s interference with or denial of those rights.”’” (Soria,
supra, 5 Cal.App.5th at p. 601; accord, Moore v. Regents of
University of California, supra, 248 Cal.App.4th at p. 250.) “An
interference claim under CFRA does not invoke the burden
shifting analysis of the McDonnell Douglas test.” (Moore, at
p. 250; accord, Faust v. California Portland Cement Co. (2007)
150 Cal.App.4th 864, 879.) Under regulations promulgated
pursuant to CFRA, “Any violation of CFRA or these
implementing regulations constitutes interfering with,
restraining, or denying the exercise of rights provided by CFRA.”
(Cal. Code Regs., tit. 2, § 11094, subd. (a).)
“Employers subject to the CFRA are required to provide
notice to their employees of the right to request CFRA [leave].”
(Faust v. California Portland Cement Co., supra, 150 Cal.App.4th
at p. 879; see Cal. Code Regs., tit. 2, § 11095 [“Every employer
covered by the CFRA . . . is required to post and keep posted on
its premises, in conspicuous places where employees are
employed, a notice explaining the Act’s provisions . . . .”].)
“‘Under all circumstances, it is the employer’s responsibility to
designate leave, paid or unpaid, as CFRA or CFRA/FMLA
qualifying, based on information provided by the employee . . . ,
and to give notice of the designation to the employee.’” (Soria,
supra, 5 Cal.App.5th at pp. 602-603, quoting Cal. Code Regs.,
tit. 2, § 11091, subd. (a)(1)(A).) “‘Whether notice is sufficient
29
under CFRA is a question of fact.’” (Soria, at p. 603; accord,
Bareno v. San Diego Community College Dist., supra,
7 Cal.App.5th at p. 565.)
The CFRA regulations provide further, “Upon granting the
CFRA leave, the employer shall inform the employee of its
guarantee to reinstate the employee to the same or a comparable
position, subject to the defenses permitted by section 11089(d),
and shall provide the guarantee in writing upon request of the
employee.” (Cal. Code Regs., tit. 2, § 11089, subd. (a)(1).)
Leyva asserts MPA interfered with his rights under CFRA
by terminating him for his attempt to take CFRA-protected leave.
MPA does not dispute Leyva was entitled to CFRA-protected
leave to care for his father, but it contends Leyva failed to raise a
triable issue of fact because Leyva declined to take protected
leave and MPA approved Leyva’s vacation time off requests.
Again, MPA’s argument lacks merit.
MPA misapprehends the protections provided by CFRA.
Under section 12945.2, subdivision (d), an employee taking
CFRA-protected leave “may elect, or an employer may require the
employee, to substitute, for leave allowed under subdivision (a),
any of the employee’s accrued vacation leave or other accrued
time off during this period or any other paid or unpaid time off
negotiated with the employer.” Thus, MPA’s position (adopted by
the trial court) embraces a false dichotomy in which Leyva was
entitled to protected unpaid leave, but his use of accrued vacation
time transformed his leave into unprotected paid leave. This is
contrary to CFRA’s express authorization of use of accrued
vacation time during a period of protected leave. Therefore,
Leyva’s requests for time off to care for his disabled father were
requests for protected leave irrespective of Levya’s election to use
30
accrued vacation time to be paid for the time off.13 Moreover,
“‘[u]nder all circumstances, it is the employer’s responsibility to
designate leave, paid or unpaid, as CFRA or CFRA/FMLA
qualifying, based on information provided by the employee . . . ,
and to give notice of the designation to the employee.’” (Soria,
supra, 5 Cal.App.5th at pp. 602-603, quoting Cal. Code Regs.,
tit. 2, § 11091, subd. (a)(1)(A).) Based on the information
provided by Leyva—that he needed time off to care for his
seriously ill father—MPA was required to designate the leave as
CFRA-qualifying and give Leyva notice. Thus, a triable issue of
fact exists whether MPA interfered with Leyva’s CFRA rights by
failing to offer Leyva the option of paid CFRA-protected leave by
using his accrued vacation time.
Further, as discussed, Leyva has presented evidence
raising a triable issue of fact whether MPA unlawfully
discriminated against him by terminating him for association
with his disabled father. If Leyva proves MPA acted with
discriminatory animus in terminating his employment (for taking
time off to care for his father), there is necessarily a question of
fact whether Leyva was terminated for his use of protected leave.
Likewise, if Leyva proves Castillo selected him for
reassignment due to his use of family care leave with the intent
to create a reason to terminate him, Leyva will have shown MPA
interfered with his rights under CFRA. (See Cal. Code Regs.,
13 Section 12945.2, subdivision (b)(5)(B), defines “‘[f]amily
care and medical leave’” to include “[l]eave to care for a . . .
parent . . . who has a serious health condition.” It is undisputed
Leyva’s time off to care for his father was for a qualifying CFRA
purpose.
31
tit. 2, § 11094, subd. (a)(1) [actionable interference includes an
employer “[c]hanging the essential functions of the job in order to
preclude the taking of leave”].) And it is actionable interference
for an employer to “[t]erminat[e] an employee when it anticipates
an otherwise eligible employee will be asking for a CFRA-
qualifying leave in the future.” (Id., tit. 2, § 11094, subd. (a)(3);
see id., subd. (b) [“CFRA’s prohibition against ‘interference’
prohibits an employer from discriminating or retaliating against
an employee or prospective employee for having exercised or
attempted to exercise CFRA rights . . . .”].) For these reasons, the
trial court erred in granting summary adjudication of Leyva’s
CFRA interference claim.14
D. Leyva Raised a Triable Issue of Fact as to His Wrongful
Termination Claim
“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.
Allen (2014) 229 Cal.App.4th 144, 154; accord, Haney v. Aramark
Uniform Services, Inc. (2004) 121 Cal.App.4th 623, 641.) “The
14 Defendants are correct, however, that Leyva has forfeited
any argument the trial court erred in granting summary
adjudication of his cause of action for retaliation under CFRA by
failing to raise it in his briefs on appeal. (Swain v. LaserAway
Medical Group, Inc. (2020) 57 Cal.App.5th 59, 72 [“‘“‘Issues not
raised in an appellant’s brief are [forfeited] or abandoned.’”’”];
Golden Door Properties, LLC v. County of San Diego (2020)
50 Cal.App.5th 467, 555 [same].)
32
central assertion of a claim of wrongful termination in violation
of public policy is that the employer’s motives for terminating the
employee are so contrary to fundamental norms that the
termination inflicted an injury sounding in tort.” (Roby v.
McKesson Corp. (2009) 47 Cal.4th 686, 702; see Tameny v.
Atlantic Richfield Co. (1980) 27 Cal.3d 167, 176.) Protected
conduct includes exercising a statutory right or privilege. (Yau,
at p. 155.) As discussed, Leyva raised a triable issue on his
claims MPA violated FEHA and CFRA in terminating him.
Thus, the trial court erred in granting summary adjudication of
Leyva’s wrongful termination claim.
E. Leyva Raised a Triable Issue of Fact as to His Intentional
Infliction of Emotional Distress Claim
“A cause of action for intentional infliction of emotional
distress exists when there is ‘“‘“(1) extreme and outrageous
conduct by the defendant with the intention of causing, or
reckless disregard of the probability of causing, emotional
distress; (2) the plaintiffs’ suffering severe or extreme emotional
distress; and (3) actual and proximate causation of the emotional
distress by the defendant’s outrageous conduct.”’”’ [Citations.] A
defendants’ conduct is ‘outrageous’ when it is so ‘“‘extreme as to
exceed all bounds of that usually tolerated in a civilized
community.’”’ [Citation.] And the defendant’s conduct must be
‘“‘intended to inflict injury or engaged in with the realization that
injury will result.’”’” (Hughes v. Pair (2009) 46 Cal.4th 1035,
1050-1051, quoting Potter v. Firestone Tire & Rubber Co. (1993)
6 Cal.4th 965, 1001; accord, Christensen v. Superior Court (1991)
54 Cal.3d 868, 903.) “‘[B]ehavior may be considered outrageous if
a defendant . . . abuses a relation or position which gives him
33
power to damage the plaintiff’s interest . . . .’” (Smith v. BP
Lubricants USA Inc. (2021) 64 Cal.App.5th 138, 147; accord,
Agarwal v. Johnson (1979) 25 Cal.3d 932, 946, disapproved on
other grounds by White v. Ultramar, Inc. (1999) 21 Cal.4th 563,
574 fn. 4.) “[W]hether conduct is outrageous is ‘“usually” a
question of fact.’” (Smith, at p. 148; accord, Barker v. Fox &
Associates (2015) 240 Cal.App.4th 333, 356.)
As defendants concede, the viability of Leyva’s intentional
infliction of emotional distress claim depends on whether Leyva
has raised a triable issue of fact that Castillo and MPA
intentionally discriminated against him or interfered with his
CFRA rights. Liberally construing the evidence in support of
Leyva and resolving doubts concerning the evidence in his favor,
as we must, a reasonable jury could find Castillo intentionally
abused his position as Leyva’s supervisor, which gave him power
to damage Leyva’s interest in continued employment with MPA.
Thus, Leyva raised a triable issue of fact whether Castillo’s
conduct was extreme and outrageous, and the trial court erred in
granting summary adjudication of Leyva’s intentional infliction
of emotional distress claim.
F. Leyva Raised a Triable Issue of Fact as to His Punitive
Damages Claim
“In an action for the breach of an obligation not arising
from contract, where it is proven by clear and convincing
evidence that the defendant has been guilty of oppression, fraud,
or malice, the plaintiff . . . may recover damages for the sake of
example and by way of punishing the defendant.” (Civ. Code,
§ 3294, subd. (a).) Malice is “conduct which is intended by the
defendant to cause injury to the plaintiff or despicable conduct
34
which is carried on by the defendant with a willful and conscious
disregard of the rights or safety of others.” (Id., subd. (c)(1).)
Oppression is “despicable conduct that subjects a person to cruel
and unjust hardship in conscious disregard of that person’s
rights.” (Id., subd. (c)(2).)
Defendants moved for summary adjudication of Leyva’s
punitive damages claim based on the lack of evidence Castillo or
Schooner engaged in, authorized, or ratified any act of fraud,
oppression, or malice. In his opposition brief, Leyva argued he
raised triable issues whether Castillo’s and Schooner’s conduct
could support an award of punitive damages. The trial court
ruled the issue was moot based on its other rulings.
On appeal, Leyva argues summary adjudication of his
punitive damages claim was error, contending his claim may be
premised on his FEHA, CFRA, and wrongful termination claims.
Defendants renew their argument Leyva lacks evidence Castillo’s
or Schooner’s conduct constituted oppression or malice.15 Again,
Leyva has the better argument.
15 Defendants also argue for the first time on appeal Leyva
lacks evidence Castillo or Schooner was an officer, director, or
managing agent of MPA. Because defendants failed to make this
argument in the trial court, they have forfeited the contention.
(Pittman v. Beck Park Apartments Ltd. (2018) 20 Cal.App.5th
1009, 1026 [an argument “‘“‘may be forfeited in criminal as well
as civil cases by the failure to make timely assertion of the right
before a tribunal having jurisdiction to determine
it’”’”]; Professional Collection Consultants v. Lauron (2017)
8 Cal.App.5th 958, 972 [“‘“[I]t is fundamental that a reviewing
court will ordinarily not consider claims made for the first time
on appeal which could have been but were not presented to the
trial court.”’”].)
35
A reasonable jury could conclude Castillo and MPA
intentionally discriminated against Leyva by terminating him for
taking time off to care for his disabled father, but they attempted
to hide the illegal reason for their decision with a false
explanation, thus denying Leyva of his protected rights under
FEHA and CFRA. (See Rubio v. CIA Wheel Group (2021) 63
Cal.App.5th 82, 98 [“Evidence that an employer offered a
pretextual explanation to justify its wrongful termination may
support a finding of malice or oppression.”]; Cloud v. Casey (1999)
76 Cal.App.4th 895, 912 [“Evidence that the decision-maker
attempted to hide the improper basis with a false explanation . . .
supports the jury’s determination that the conduct was willful
and in conscious disregard of [employee’s] rights.”].) Scott v.
Phoenix Schools, Inc. (2009) 175 Cal.App.4th 702, relied on by
defendants, is distinguishable. There, the employer admitted it
had terminated the director of a preschool for informing the
parents of a prospective student that the school had no room for
their child. The jury awarded punitive damages, finding the
reason for the termination violated the public policy of protecting
children by maintaining required staffing ratios. (Scott, at
pp. 714-715.) The Court of Appeal reversed the punitive damages
award, reasoning that terminating an employee for an improper
reason without more does not support a finding of despicable
conduct. (Id. at p. 716.) In contrast, as discussed, Leyva raised a
triable issue of fact whether MPA’s proffered legitimate reason
for Leyva’s termination was pretext. A jury could reasonably find
that defendants’ discriminatory conduct was deceitful and
therefore malicious or oppressive. Thus, the trial court erred in
granting summary adjudication of Leyva’s claim for punitive
damages.
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DISPOSITION
The judgment is affirmed in part and reversed in part. The
trial court is ordered to vacate its order granting defendants’
motion for summary judgment and to enter a new order granting
summary adjudication as to Leyva’s fourth cause of action for
CFRA retaliation and denying summary adjudication as to
Leyva’s remaining causes of action. The matter is remanded for
further proceedings consistent with this opinion. Leyva is
entitled to recover his costs on appeal.
FEUER, J.
We concur:
SEGAL, Acting P. J.
ESCALANTE, J. *
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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