Dvir v. Ten Tech CA2/5

Filed 6/30/21 Dvir v. Ten Tech CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
GIL DVIR, B296576
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC661513)
v.
TEN TECH, LLC et al.,
Defendants and Respondents.
APPEAL from an order of the Superior Court of Los
Angeles County, Barbara Meiers, Judge. Reversed and
remanded.
Benedon & Serlin, Douglas G. Benedon and Kelly Riordan
Horwitz; Reisner & King, Tessa M. King and Adam J. Reisner,
for Plaintiff and Appellant.
M.E.T.A.L. Law Group, W. Dan Lee and Ashley J. Lee, for
Defendants and Respondents.
In this employment litigation matter, we consider whether
the trial court erred in granting summary judgment for the
defendants before the plaintiff obtained discovery on a key
factual issue: whether the defendants employed the five or more
individuals necessary to come within the strictures of several
Fair Employment and Housing Act (FEHA) provisions.
I
Plaintiff and appellant Gil Dvir (Dvir) went to work for
defendant and respondent Ten Tech, LLC (Ten Tech) in
December 2015, and he was fired just shy of six months later, in
June 2016. Husband and wife William Villers and Connie
Yokogawa (also a defendant) were the members of Ten Tech and
worked, respectively, as Ten Tech’s Director of Engineering and
Operations Manager. It is undisputed that at the relevant time
Ten Tech employed two people other than Dvir: Mark Sipperley
(Sipperley) and Benson Tu (Tu). The question of whether Ten
Tech employed anyone else beyond these three during the
relevant time was very much disputed and is key to our
resolution of this appeal.
A
Yokogawa, incorporating comments provided by Villers,
gave Dvir his first performance review just two months into the
job, in February 2016. His performance was rated satisfactory in
all evaluation categories but he was counseled that Ten Tech
would like to see “much greater speed of execution” in all tasks as
well as more initiative from him.
2
At Dvir’s next performance review in April 2016, Dvir told
Yokogawa (for the first time, according to Yokogawa) that he
suffered from Irritable Bowel Syndrome (IBS). Yokogawa
suspended the review, discussed Dvir with Villers, and did some
research on IBS. The performance review recommenced the
following day and Yokogawa told Dvir he could take restroom
breaks as frequently as needed. The written performance review
form Dvir was given informed him his work quality was “[n]ot
bad, but not good” and his time management skills needed
improvement so project due dates would be met. The form also
stated: “Medical condition is not an issue with Company, but
work efficiency and quality should not be excused due to the
condition. No missing due dates will be excused after this
meeting.”
The following month, Villers asked Dvir to complete a
PowerPoint presentation for Mercury, one of Ten Tech’s clients.
Shortly before it was due, Dvir told Villers it was 65 percent
done. But on the project’s due date, June 3, 2016, it was still
incomplete; according to Villers, Dvir had done virtually no work
on the project (Dvir would later assert he was waiting to
incorporate data he had not received from others at the
company). Villers fired Dvir that same day and Yokogawa mailed
him his final check.
B
Dvir sued Ten Tech after being terminated at the company.
His operative complaint alleged five causes of action under
FEHA: discrimination based on disability (his IBS), harassment
based on disability, retaliation based on disability, failure to
accommodate a disability, and failure to engage in an interactive
3
process related to his disability. The complaint also alleged other
causes of action for sundry alleged wrongs: jury service
retaliation, failure to timely pay wages, failure to indemnify
work-related expenses, violation of California’s unfair
competition law, whistleblower retaliation, negligent
misrepresentation, wrongful termination in violation of public
policy, and intentional infliction of emotional distress.
Defendants filed a motion for summary judgment, or
summary adjudication in the alternative, (for simplicity, the
“summary judgment motion” or “motion for summary judgment”)
in June 2018. The sole ground on which defendants sought
adjudication of the FEHA-based claims in their favor was the
contention that Ten Tech undisputedly did not regularly employ
five or more individuals. Recognizing that regulations as they
existed at the time defined “regularly employing” as employing
five or more individuals in any 20 consecutive weeks in the
current or preceding calendar year, defendants argued Villers
and Yokogawa were not employed by Ten Tech (instead they were
the members thereof) and the company employed only three
people at the relevant time: Dvir, Sipperley, and Tu.
A month later, while defendants’ summary judgment
motion was still pending (and before Dvir’s opposition was due on
August 3, 2018), Dvir filed an ex parte application to compel
depositions of Sipperley and Tu and to continue the summary
judgment hearing for one month. Dvir argued defendants had
refused to produce Sipperley and Tu for their depositions and
their testimony was important to opposing the summary
judgment motion because they “not only worked with [Dvir] but
may have witnessed [his] allegations.” Defendants opposed
Dvir’s application.
4
The trial court held a hearing on Dvir’s ex parte application
and took the matter off calendar because the parties had resolved
their dispute. According to a minute order (no reporter’s
transcript or substitute therefor is included in the appellate
record), defendants and Dvir agreed on a date for Tu’s deposition
and agreed Sipperley would be separately subpoenaed to appear.
The court’s minute order further states that “[n]o continuance of
the [s]ummary [j]udgment motion will be granted on the basis of
a need to conduct any of this very belated discovery by [Dvir].”
On July 26, 2018, roughly a week before Dvir’s opposition
to the summary judgment motion was due, Dvir filed a “Motion
for an Order Compelling the Depositions of Defendant Ten Tech,
LLC’s PMK, . . . Yokogawa, and Sara Grasso, and Request for
Production of Documents . . .” (the motion to compel). Briefly
summarized, the motion to compel argued Dvir’s attorney had
suspended completion of Yokogawa’s earlier deposition in May
2018—when Yokogawa mentioned documents in her possession
that had not been produced, including Ten Tech payroll records,
meeting minutes, and checkbook stubs—and counsel for
defendants had since refused to produce these documents or to
permit completion of Yokogawa’s deposition.1 The motion to
compel also argued defendants were obligated but refusing to
produce Sara Grasso (Grasso) for deposition—an individual Dvir
contended was employed by Ten Tech during the relevant time
period (defendants contended she was an independent
1
Yokogawa’s May 2018 deposition took place before
defendants filed their summary judgment motion in June 2018.
As already explained, that motion argued Ten Tech was not
subject to FEHA because the company did not employ five or
more people.
5
contractor). The motion to compel explained the additional
requested discovery was “directly at issue in this case where
[d]efendants claim they had less than five employees during
[Dvir’s] employment, and are therefore not subject to FEHA for
some of [Dvir’s] allegations.” The motion to compel further
referenced the upcoming deadline for Dvir’s summary judgment
opposition and stated Dvir was being “forced to file his opposition
without this necessary evidence.”
Dvir’s motion to compel was set for hearing on the same
day as defendants’ summary judgment motion. In advance of
that hearing, Dvir filed his summary judgment opposition by the
previously set due date, August 3, 2018. On the issue of the
number of individuals employed by Ten Tech, the opposition
argued, among other things, there were at least five or more such
people: Dvir, Tu, Sipperley, Grasso, and two others—an
individual identified only by the name “Farzan” and Moon
Mitchell Gim (Gim).2 Importantly, however, the opposition and a
supporting declaration from counsel reiterated Ten Tech had not
produced discovery that may more definitively show who Ten
Tech employed and the inability to obtain this discovery was
alone grounds to deny the summary judgment motion.3
2
Dvir relied only on Tu’s deposition testimony and Ten Tech
Employment Development Department reports in an effort to
argue Farzan and Gim were employees.
3
The opposition argued: “The number of persons on the
payroll, not the number working on any particular day, is
determinative of the number of employees an employer regularly
employs. Here, [d]efendants have failed to produce to [Dvir] their
payroll records despite discovery requests that they do so,
resulting in a motion to compel currently on calendar. [Citation.]
6
At a hearing on the summary judgment motion and the
motion to compel, the trial court repeatedly cited the absence of
evidence about Ten Tech’s “books and records” as reason to
conclude Ten Tech did not have five or more employees and to
summarily adjudicate the FEHA claims (other than the disability
harassment cause of action, which requires proof of only one
employee, not five or more (see generally Gov. Code, § 12940,
subd. (j)(4)(A))), in defendants’ favor. The court stated it did not
understand the “struggling in this case over how many employees
[Ten Tech] had” because “the source for that sort of information is
books and records of the company, not all these interviews with
people about how many employees were there and who worked
there, when, because whether or not someone is an employee for
the purposes of [FEHA] is a legal determination and you have to
start with the books and records of the company.” Confronted
with the pending motion to order production of such records, the
trial court asked counsel for defendants whether Dvir had
requested production of payroll records and other “back-office
documents.” Defense counsel told the court that such materials
were “not in their request for production.” The court denied the
Under [Code of Civil Procedure section 437c] this is grounds to
deny the [summary judgment motion] in its entirety and/or to
strike it.” A declaration from Dvir’s attorney similarly stated:
“Dvir was denied the ability to take needed discovery by
[d]efendants, including the continued deposition of PMK
Yokogawa, the deposition of employee[ ] Sara[ ] Grasso,
and . . . [d]efendants continue to fail to produce necessary and
needed documents in this case, including Ten Tech’s payroll
records for the years of 2015 and 2016 when Dvir was employed.”
7
motion to compel from the bench without elaboration and took
the summary judgment motion under submission.
In a subsequent written ruling, the trial court granted
summary adjudication of all claims except Dvir’s second cause of
action for disability harassment under FEHA. Most relevant for
our purposes, the court found all of the non-harassment FEHA
claims failed because there was no evidence on which a factfinder
could rely to conclude Ten Tech employed five or more people.
The court reasoned Yokogawa or Villers could not be considered
employees of the company (instead, they were limited liability
company members), but the court said nothing about whether
any other individuals (e.g., Grasso, Farzan, or Gim) could—with
or without additional discovery—be considered regularly
employed by Ten Tech during the relevant time.
After the trial court summarily adjudicated all but the
FEHA disability harassment claim in defendants’ favor, the
parties settled that claim to resolve the case, at least for purposes
of taking an appeal. Defendants then asked the trial court to
order Dvir to pay their trial court costs of $4,369.95. The trial
court agreed, finding as necessary to permit assessment of costs
regarding the FEHA claims that they were frivolous. The court
entered judgment for defendants and this appeal ensued.
II
The summary judgment statute, Code of Civil Procedure
section 437c, requires courts to deny a summary judgment
motion, or order a continuance, when affidavits opposing
summary judgment reveal that facts essential to opposing the
motion may exist but cannot be presented. (Code Civ. Proc.,
§ 437c, subd. (h).) This was the scenario the trial court
8
confronted and yet the court granted summary judgment for
defendants, without ordering a continuance. We will rectify the
error.
“Section 437c, subdivision (h) of the Code of Civil Procedure
provides that a motion for summary judgment or adjudication
shall be denied, or a continuance shall be granted, ‘[i]f it appears
from the affidavits submitted in opposition . . . that facts
essential to justify opposition may exist but cannot, for reasons
stated, then be presented . . . .’ The nonmoving party seeking a
continuance ‘must show: (1) the facts to be obtained are essential
to opposing the motion; (2) there is reason to believe such facts
may exist; and (3) the reasons why additional time is needed to
obtain these facts. [Citations.]’ (Wachs v. Curry (1993) 13
Cal.App.4th 616, 623[ ].) The decision whether to grant such a
continuance is within the discretion of the trial court. (FSR
Brokerage, Inc. v. Superior Court (1995) 35 Cal.App.4th 69, 72[ ].)
But . . . the interests at stake are too high to sanction the denial
of a continuance without good reason.” (Frazee v. Seely (2002) 95
Cal.App.4th 627, 633-634 (Frazee).)
Defendants’ principal rejoinder to Dvir’s argument that the
trial court should have denied their summary judgment motion to
permit discovery (or continued the motion hearing to a later date)
is the claim that “there is no record showing that [Dvir] ever
asked for a continuance under [Code of Civil Procedure section
437c, subdivision (h)], other than the ex parte application of July
5, 2018.”4 A specific request for a continuance, however, is not
4
The only other argument defendants offer (other than
platitudes about the presumption of correctness that applies to a
trial court judgment) concerns the trial court’s denial of Dvir’s
July 5, 2018, ex parte application to continue the summary
9
required; Dvir was entitled to denial of the summary judgment
motion—unless the court instead opted to continue the hearing—
and he did ask for exactly that.
Dvir’s opposition to defendants’ motion for summary
judgment or summary adjudication stated “[d]efendants have
failed to produce to [Dvir] their payroll records despite discovery
requests that they do so, resulting in a motion to compel
currently on calendar. . . . Under [Code of Civil Procedure section]
437c this is grounds to deny the [motion] in its entirety and/or to
strike it.” A declaration from counsel for Dvir that accompanied
his opposition averred Dvir had been denied the ability to
complete Yokogawa’s deposition, to depose Grasso, and to obtain
production of Ten Tech’s payroll records and other “needed
documents” pertaining to “the years of 2015 and 2016 when Dvir
was employed.”5 In the words of section 437c, subdivision (h), it
judgment hearing to allow for deposing Sipperley and Tu. They
argue that ruling was not erroneous because Dvir’s application
“failed to satisfy the requirements” of Code of Civil Procedure
section 437c, subdivision (h). Specifically, defendants argue the
application was deficient because it did not detail who should be
deposed beyond Sipperley and Tu and their depositions were
completed before the summary judgment hearing. Even if
defendants are correct that denial of Dvir’s ex parte application
for a continuance does not warrant reversal, reversal is still
required. As we shall explain, Dvir’s summary judgment
opposition (particularly when viewed in light of the motion to
compel heard at the same time) established denial of the
summary judgment motion or a continuance of the motion
hearing was required.
5
The declaration additionally stated Dvir was “attempting to
serve former employee Farzan with a subpoena for his
deposition.”
10
accordingly “appear[ed] from the affidavits submitted in
opposition . . . that facts essential to justify opposition may exist
but cannot, for reasons stated, be presented.” The trial court
(perhaps relying at least in part on inaccurate representations
from defense counsel at the summary judgment hearing6)
nevertheless granted summary judgment and denied the request
to compel additional discovery that may bear on the number of
individuals employed by Ten Tech. “Because the Legislature has
provided for the fairly lenient granting of continuances to oppose
summary judgment motions,” the trial court abused its discretion
by not denying defendants’ summary judgment motion—or at
6
Recall that on the question of whether Ten Tech employed
five or more individuals such that the company would be required
to comply with certain FEHA provisions, the trial court thought
the best evidence would be the books and the records of the
company and believed—wrongly—that Dvir “never obtained or
sought to obtain” those materials. The court specifically asked
counsel for defendants if Dvir asked for “payroll records, all of the
bookkeeping, you know, entries and things that might pertain to
what somebody’s status was within the company” and counsel
responded, “That’s not in their request for production.” This
representation was not accurate: Dvir’s deposition notices for
Yokogawa (as a person most knowledgeable) requested “[a]ny and
all DOCUMENTS demonstrating YOUR general characteristics,
including, but not limited to: YOUR type of business, locations,
hours of operation, number of employees, supervisors, managers,
and parent companies or business owners,” (emphasis ours);
Dvir’s attorney sent a meet and confer letter before filing the
motion to compel reiterating a request for Ten Tech’s payroll
records, meeting minutes, and check stubs; and the motion to
compel itself asked the trial court to order production of these
documents.
11
least by not continuing the motion hearing to permit obtaining
the requested discovery. (See, e.g., Frazee, supra, 95 Cal.App.4th
at 635.)
Reversal and a remand for further proceedings is therefore
required. The requested discovery that the trial court
erroneously did not permit may be most relevant to Dvir’s
remaining FEHA-based claims but we cannot say for certain. For
that reason, and light of our reversal of the judgment, there is no
need to now decide the propriety of the trial court’s summary
adjudication of the other causes of action (though our reversal
will also necessarily vacate the trial court’s costs award). That
can be deferred for later appellate court proceedings—if there is a
need.
DISPOSITION
The judgment is reversed and the cause is remanded for
further proceedings consistent with this opinion, which may
include a renewed motion for summary judgment after Dvir has
the opportunity to obtain the requested discovery into the
number of individuals employed by Ten Tech during the relevant
time. Dvir shall recover his costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BAKER, J.
We concur:
12
RUBIN, P. J.
MOOR, J.
13