Ortega v. Carson Wild Wings CA2/1

Filed 8/3/23 Ortega v. Carson Wild Wings CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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 ONE
JASMIN ORTEGA, B309931
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BC677388)
v.
ORDER MODIFYING OPINION
CARSON WILD WINGS, LLC,
[CHANGE IN JUDGMENT]
Defendant and Appellant.
THE COURT:
It is ordered that the opinion filed herein on July 31, 2023,
be modified as follows:
On page 16, in the Disposition, the second paragraph
should read:
Costs on appeal are awarded to Appellant.
This modification changes the judgment.
____________________________________________________________
ROTHSCHILD, P. J. CHANEY, J. BENDIX, J.
Filed 7/31/23 Ortega v. Carson Wild Wings CA2/1 (unmodified opinion)
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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 ONE
JASMIN ORTEGA, B309931
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BC677388)
v.
CARSON WILD WINGS, LLC,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Terry A. Green, Judge. Affirmed in part and
reversed in part.
Troutman Pepper Hamilton Sanders, Keith J. Barnett and
Elizabeth Holt Andrews for Defendant and Appellant.
Lebe Law, Jonathan M. Lebe and Zachary T. Gershman for
Plaintiff and Respondent.
___________________________________
Jasmin Ortega, a server in a restaurant owned by Carson
Wild Wings, LLC (CWW), sued her employer for tort claims and
Labor Code violations on a theory of whistleblower retaliation.
After a jury trial, the court entered judgment for Ortega and
awarded her punitive damages and attorney fees. CWW
contends insufficient evidence supports the verdict and damages
award, and punitive damages and an award of attorney fees were
improper. We conclude insufficient evidence supports the verdict.
Accordingly, we affirm the judgment on an undisputed claim but
otherwise reverse both the judgment and attorney fee award. We
do not reach CWW’s other arguments.
BACKGROUND
I. Ortega’s Employment
CWW owns and operates Buffalo Wild Wings restaurant.
Beginning in 2013 or 2014, Ortega worked at the
restaurant as a server. She was well regarded by her peers and
CWW’s general manager, but in 2015 and 2016 received six
corrective action memorandums from her managers and had been
suspended once.
On March 6, 2017, Sandra Reisz became the general
manager of the restaurant where Ortega worked.
A. March 2017: Initial Reisz Investigation
In late March 2017, Shava Willis, a shift manager, notified
Reisz that she suspected Ortega of circumventing the
restaurant’s policy for sharing tips among the staff, and of
manipulating a customer loyalty program to take advantage of
unused benefits. Reisz initiated an investigation.
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B. March 31 or April 6, 2017: Waterbombing
Incident
On March 31 or April 6, 2017 (the date was contested),
about a month after Reisz became the manager, Ortega “water-
bombed” “Tyler,” a trainee server, as follows:
CWW’s servers used a computer system, called a “Point-of-
Sales” (POS) system, to keep track of tables, orders, checks, and
tips. A server would log onto the system, make notations about
orders made and filled, and log off. If a server failed to log off,
the next server could make notations concerning the prior
server’s tables under that server’s still-open session.
Waterbombing involved going onto another server’s still-
open session, opening entries relating to that server’s tables, and
making notations that water had been ordered when it had not.
The first server would thereafter have to “check out” the water
orders, i.e., cancel or mark them as having been filled, before
closing out the session.
On March 31 or April 6, 2017, Tyler, a new server,
inadvertently failed to log himself out of the POS system near the
end of his shift. To “teach him a lesson,” Ortega used Tyler’s
still-open session to place multiple simultaneous orders for water
at his assigned tables to make him think he was responsible for
fulfilling a rush of new orders, when in reality no one had ordered
anything and indeed, most or all of his tables were empty. The
prank forced Tyler and Reisz to rush to clear the fake water
orders before his shift ended.
C. April 6, 2017: Corrective Action Memo
The waterbombing incident infuriated Reisz. On April 6,
2017, she drafted a “corrective action” memorandum, dated April
6, 2017, notifying Ortega she was being fired. The memorandum
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stated, “This serves as your . . . Notice of Termination,” and gave
three reasons:
(1) “On 3/27/17 Jasmin Ortega was caught manipulating
the tip out procedure. Ms. Ortega added the total transaction
amount plus the tip amount together, inserted said number into
the transaction amount line and closed the tip out to cash thereby
circumventing the tip tracking system and avoiding the need to
pay taxes on the tip”;
(2) “On 4/6/17 New server Tyler failed to exit out of his
screen on the POS so Jasmin felt the need to ‘teach the arrogant
new server a lesson.’ Jasmin opened 20 tables under Tyler’s
name. Each table just had a water on the table AKA a ‘water
bomb.’ Jasmin’s stunt almost cost us a meal break violation as
Tyler only had a few minutes to check out”;
(3) “Jasmin has been written up on 3/15/17 for a break
violation; on 12/16/16 for tardiness and poor attitude; on 10/19/16
for leaving work without permission; on 10/15/16 for a break
violation; on 4/10/16 for a no call no show; on 5/7/15 for disorderly
conduct with a guest and on 3/18/15 for poor guest service”;
Reisz emailed the memo to CWW’s district manager and
human resources department, requesting approval to terminate
Ortega’s employment and asking for her final paycheck to be cut.
Reisz then went home for the day.
D. April 6 and 7, 2017: Ortega’s Complaints
Regarding Meal Breaks
Later that evening, Willis, Ortega’s shift manager, directed
Ortega to clock out for her meal break but work through the
break and take one later. At around midnight, Ortega
complained to Willis about not receiving a meal break.
4
The next day, on April 7, 2017, Ortega was again told to
work through her scheduled meal break. She complained to
Devin McLothan, another shift manager, about missed breaks
and other wage and hour violations.
E. April 10, 2017: Termination
On April 9, 2017, in response to Reisz’s corrective action
memo, CWW suspended Ortega before her shift was to begin.
On April 10, 2017, Reisz presented the corrective action
memo to Ortega. The memo bore three signature lines, for the
employee, a manager, and a witness. Ortega refused to sign it.
Reisz and a witness signed the memo and dated it “4/10/17.”
II. Lawsuit
A. Complaint
On September 26, 2017, Ortega sued CWW and two of its
executives, Edward Barnett, and Karim Webb, alleging: violation
of “the whistle-blowing law” pursuant to Labor Code section
1102.5; “retaliation for engaging in a protected activity” pursuant
to Labor Code section 98.6; wrongful termination in violation of
public policy; intentional and negligent infliction of emotional
distress (IIED and NIED); and “failure to produce [Ortega’s]
personnel file.”
The trial court denied two successive CWW motions for
summary judgment or adjudication and granted Ortega’s
unopposed motion for summary adjudication of her cause for
failure to produce a personnel file. The matter went to jury trial
on Ortega’s other causes of action.
B. Trial
At trial Ortega’s theory was that the timing of her
complaints about wage and hour violations on April 6 and April
7, 2017, and CWW’s decision to fire her on April 10, constituted
5
evidence that the firing was in retaliation for the complaints.
CWW had a history of retaliating against employees who ask that
the company follow labor laws, she argued, and no important
decisions were made without the knowledge and approval of
Webb and Barnett, CWW’s owners.
Several CWW employees, including Reisz, testified that
Ortega was an excellent but troubled employee.
Ortega testified that she was denied meal breaks on April 6
and 7, 2017, and reported these wage and hour violations to her
direct managers, Willis and McLothan. Other employees
corroborated that missed meal breaks had occurred before at the
restaurant. Ortega testified she was suspended soon after
making her complaints, and was terminated a couple days later.
Ortega denied that she falsified her tips or manipulated
CWW’s tip-out procedure, and said CWW had used this same
excuse to fire another employee, Erica Bustarde, after she also
reported being forced to work off-the-clock.
Ortega testified that her prior write-ups were in the distant
past and had nothing to do with her termination, and one was
mistaken in any event. She also asserted that CWW failed to
follow its progressive discipline policy when terminating her.
Ortega admitted waterbombing Tyler, but testified she did
so on March 31, 2017, not April 6, and anyway waterbombing
was commonly practiced at CWW to remind new servers to log
out of the POS system so the next server would not have to do so.
It was never a terminable offense.
Four servers, Bustarde, Yessica Jasper, Julieta Hernandez,
and Monesha Sauve, testified that CWW sometimes denied
employees their meal breaks.
6
Bustarde, a server at the restaurant when Reisz was the
manager, testified she was terminated in July 2017, a week after
reporting to the human resources department about having been
forced to work off-the-clock. Bustarde testified that CWW
provided baseless reasons for her termination, including that she
had improperly closed a tab to avoid paying taxes on her tips and
had accumulated several prior write-ups.
Jasper testified that waterbombing was neither an unusual
nor particularly intrusive or upsetting occurrence. However, she
also testified, “You wouldn’t do it around the manager.” She
testified, “I think that is a ridiculous reason to fire someone
because if that was the case then they should fire the entire staff,
because we all did it.” Jasper testified that in 2015 she was
terminated after reporting CWW’s wage-and-hour violations to
shift managers.
No witness testified that Reisz retaliated against them.
For the defense, Willis and McLothan testified that neither
Ortega nor anyone else ever missed a meal break, and Ortega
never complained about missed meal breaks. They testified they
never told Reisz about any meal break issue. Around March 27,
2017, Willis began to suspect that Ortega was skirting the
restaurant’s tip sharing policy, and reported her suspicion to
Reisz.
McLothan testified that Reisz did not know what
waterbombing was before Ortega waterbombed Tyler: “[W]e had
to explain it to her.”
Reisz testified that she considered waterbombing to
constitute bullying, deserving termination: “I was very angry. I
was upset because I felt like it was just like a slap in the face to
the new guy and I was trying very hard where I was hiring and
7
trying very hard to get really good people in the restaurant. And
it was, you know, it was a slap in my face. It was a slap in Ty’s
face. It was—I was upset.”
Reisz testified she did not know about any meal break
complaint when making the decision to fire Ortega. Without
consulting the other managers, she wrote the corrective action
memorandum during her shift on April 6, 2017, emailed it to
CWW’s human resources manager on that date, then went home.
This occurred before Ortega could have complained to other
managers about missed breaks later that night and the next
night. Reisz testified that when she fired Ortega, the server said
nothing about having missed meal breaks. She testified that
“ultimately the termination occurred [because of] a culmination
of things, . . . bullying an employee, having seven write-ups in the
file. It was sort of a sum of the whole is greater than the sum of
the parts kind of situation.”
CWW was unable at trial to substantiate Willis’s suspicions
about Ortega’s tip-sharing violations.
Ortega admitted that Reisz’s corrective action memo was
dated April 6, 2017, but testified that Reisz “could [have]
change[d] the dates” on the termination paperwork to cover her
retaliation and create the false impression that she had made her
decision before Ortega complained to Willis and McLothan.
Ortega also stated, “[I]t was common for [CWW] to alter records.”
(She offered no support for either allegation.)
Ortega’s counsel argued to the jury that CWW failed to
produce the email Reisz sent CWW’s human resources manager
on April 6, 2017, from which the jury should infer that Reisz
decided to fire Ortega not after the waterbombing incident but
after her complaints to Willis and McLothan.
8
C. Verdict and Post-Verdict Proceedings
At the close of evidence, the court granted a directed
verdict in favor of Webb and Barnett on the ground that no
evidence suggested they had knowledge of the circumstances of
Ortega’s termination.
The jury found for Ortega on all claims and awarded her
$52,000 in past lost earnings, $20,000 in future lost earnings, and
$128,000 in past noneconomic loss, including physical pain and
mental suffering, for a total of $200,000.
With respect to punitive damages, the verdict form asked
whether “CWW” “engage[d] in conduct with malice, oppression, or
fraud.” The verdict form requested no finding as to any
individual agent or employee of CWW.
The jury nevertheless concluded that CWW engaged in
conduct with malice, oppression or fraud, and awarded Ortega
$100,000 in punitive damages.
On October 27, 2020, the trial court entered judgment for
Ortega in the amount of $301,500, comprising the jury award on
causes of action that went to trial, plus $1,500 in statutory
damages for the undisputed claim involving Ortega’s personnel
file. The judgment erroneously stated that the jury found that
“an agent or employee of Defendant Carson Wild Wings, LLC
engage[d] in conduct with malice, oppression, or fraud.” As
noted, however, the verdict form made no mention of any CWW
agent or employee.
CWW moved for judgment notwithstanding the verdict
(JNOV) or, in the alternative, a new trial, both of which the trial
court denied.
On January 5, 2021, the court awarded Ortega attorney
fees in the amount of $291,948.00.
9
DISCUSSION
CWW contends no substantial evidence supports the
judgment because uncontested evidence established that Reisz
did not know about Ortega’s complaints about missed meal
breaks when deciding to fire her, and therefore could not have
retaliated against her. We agree.
A. Legal Framework
An employer may not retaliate against an employee for
complaining about the employer’s noncompliance with any legal
obligation or for exercising any right afforded by law. (Labor
Code, §§ 98.6, 1102.5, subd. (c).)1
A whistleblower employee who has suffered an adverse
employment action proves a retaliation claim by establishing by a
preponderance of the evidence that retaliation “was a
contributing factor” in the adverse action. (§ 1102.6.) After the
employee does so, the employer must demonstrate by clear and
convincing evidence that it would have taken the same action “for
legitimate, independent reasons even if the employee had not
engaged in [protected] activities.” (Ibid.; see Lawson v. PPG
Architectural Finishes, Inc. (2022) 12 Cal.5th 703, 707 (Lawson).)
A section 1102.6 retaliation claim thus proceeds in two
stages. “The first prong of the statute . . . tells us what plaintiffs
must prove to establish liability, and by what evidentiary
standard. Specifically, plaintiffs must show, by a preponderance
of the evidence, that whistleblowing was a contributing factor in
the employer’s decision.” (Lawson, supra, 12 Cal.5th at p. 712.)
1
Undesignated statutory references will be to the Labor
Code.
10
The second prong of the statue codifies the employer’s “same-
decision defense.” (Ibid.)
“When a party contends insufficient evidence supports a
jury verdict, we apply the substantial evidence standard of
review. [Citation.] ‘ “[T]he power of [the] appellate court begins
and ends with the determination as to whether there is any
substantial evidence contradicted or uncontradicted which will
support the [verdict].” [Citations.]’ [Citation.] We must ‘view
the evidence in the light most favorable to the prevailing party,
giving it the benefit of every reasonable inference and resolving
all conflicts in its favor. . . .’ ” (Wilson v. County of Orange
(2009) 169 Cal.App.4th 1185, 1188.)
B. Insufficient Evidence Supports Causation
Here, no evidence suggested that Ortega’s complaining
about missed meal breaks was a contributing factor in CWW’s
decision to fire her. On the contrary, the uncontroverted evidence
established that Reisz decided to fire Ortega before Ortega
complained.
Reisz testified, and other evidence established, that Reisz
decided to terminate Ortega in the early evening of April 6, 2017,
before Ortega complained to Willis later that evening and to
McLothan on April 7. Reisz drafted her notice of corrective action
in the early evening and emailed it to a CWW division manager,
who approved the termination. She then left work. No evidence
suggested that Reisz was at the restaurant when Ortega
complained to either Willis or McLothan, or that those
supervisors communicated Ortega’s complaints to Reisz. On the
contrary, the three managers—Reisz, Willis and McLothan—all
testified that no one told Reisz about Ortega’s complaints, and
Reisz testified that Ortega mentioned nothing about them on
11
April 10. Ortega herself never testified that she told Reisz about
her complaints.
It was simply impossible for Reisz to retaliate against
Ortega because of a complaint Ortega made after the alleged
retaliation.
Ortega purports to derive an inference of retaliation from a
partial sequence of events: She complained to Willis on April 6,
2017, and to McLothan on April 7, and was fired on April 10.
However, Ortega ignores the determining part of the sequence:
Reisz decided to fire Ortega early on April 6, 2017, before Ortega
complained to Willis, and the termination on April 10 proceeded
directly from that April 6 decision. No evidence suggested, for
example, that between April 6 and 10 Reisz changed her mind
about firing Ortega, then learned about her complaints and
changed it back.
Because no evidence suggests that Reisz knew about
Ortega’s complaints even as late as April 10, 2017, when Reisz
presented her with the termination papers, the sequence of
events by itself failed to fulfill Ortega’s burden of showing
retaliation was a contributing factor in Ortega’s termination.
Ortega argues that her testimony that the waterbombing
happened earlier than the date stated in Reisz’s memo (i.e., on
March 31, 2017, rather than April 6) constituted substantial
evidence that “the timeline on the termination memo was
incorrect.” We disagree. The relevant timeline concerns the date
of the memo itself, not the dates it recites. A discrepancy in the
memo’s recitation of dates does not refute the unrebutted
evidence that Reisz wrote the memo before Ortega complained
about missed meal breaks.
12
Ortega relies on her testimony that Reisz “could [have]
change[d] the dates” on the corrective action memorandum to
conceal her retaliatory motive and create the false impression
that she made her decision before Ortega complained to Willis
and McLothan. Ortega also testified “it was common for [CWW]
to alter records.”
But no evidence or explanation supported these assertions.
Bare speculation is not evidence. (Advent, Inc. v. National Union
Fire Ins. Co. of Pittsburgh, PA (2016) 6 Cal.App.5th 443, 459; Wiz
Technology, Inc. v. Coopers & Lybrand LLP (2003) 106
Cal.App.4th 1, 11.)
Ortega argues that Reisz’s failure to produce the email she
sent to CWW’s human resources manager on April 6, 2017,
supports an inference that the email was sent later, i.e., after
Ortega complained to Willis and McLothan. (See Evid. Code, §
412 [failure to produce strong evidence supports the inference
that weaker evidence on the same issue is untrustworthy].) But
Ortega adduces nothing in the record suggesting CWW was
called upon to produce the email. In any event, Reisz sending the
email later than April 6, 2017, would not establish that she
falsified the date on the corrective action memorandum itself.
Nor would it establish that she knew about Ortega’s complaints
before sending the memo.
C. Pretext Alone Does Not Establish Causation
Ortega glosses over the causation timeline, instead
asserting that Reisz’s pretextual justifications for firing her, and
CWW’s alleged “culture of retaliation,” constitute evidence of
retaliation.
In this vein, Ortega argues the reasons Reisz gave for firing
her were false, because: (1) Ortega did not violate CWW’s tip-out
13
procedure; (2) other employees had not been terminated for
waterbombing severs; (3) the waterbombing here occurred on
March 31, 2017, not April 6, 2017; and (4) progressive discipline
for her prior misconduct had resolved CWW’s concerns about that
conduct. Ortega also relies on the testimony of several servers
that CWW denied employees their meal breaks, terminated
servers after they complained, and gave pretextual reasons for
doing so. She argues that this evidence established that CWW
maintained a “retaliatory culture,” which shifted the burden to
CWW to show it had a “legitimate, nonretaliatory” reason for
firing her.
We disagree.
First, pretext alone does not establish retaliation. “[A]
plaintiff’s showing of pretext, combined with sufficient prima
facie evidence of an act motivated by discrimination, may permit
a finding of discriminatory intent . . . .” (Guz v. Bechtel National,
Inc. (2000) 24 Cal.4th 317, 361 (Guz).) Here, Ortega adduced no
evidence of an act motivated by retaliation. Her only evidence
was the sequence of events. But as discussed, the sequence fails:
Even if Reisz’s stated reasons for firing Ortega were false, and
even if she generally participated in CWW’s “retaliatory culture,”
no evidence suggests either that Reisz knew about Ortega’s
complaints or wrote the termination memo after she made them.
Second, although when an employer gives a pretextual
reason for an adverse employment action it is reasonable to infer
the true reason was impermissible, that inference arises only
when other, legitimate reasons have been eliminated. (See Guz,
supra, 24 Cal.4th 317, at p. 381 (conc. & dis. opn. of Kennard, J.)
“ ‘[W]e know from our experience that more often than not people
do not act in a totally arbitrary manner, without any underlying
14
reasons, especially in a business setting. Thus, when all
legitimate reasons for rejecting an applicant have been
eliminated as possible reasons for the employer’s actions, it is
more likely than not the employer, whom we generally assume
acts with some reason, based his decision on an impermissible
consideration such as race [or age].’ ” (Ibid.)
Here, Ortega failed to show that waterbombing could be
eliminated as a legitimate reason for her termination. None of
the testimony suggesting that other CWW employees tolerated
waterbombing established that Reisz tolerated it, or that she
participated in CWW’s retaliatory culture. On the contrary,
McLothan testified that Reisz was unaware of the waterbombing
practice before he explained it to her, and Reisz testified she
considered waterbombing to be bullying. And none of the servers’
complaints about CWW’s unfair actions respecting them
mentioned Reisz as the actor. Because the evidence failed to
eliminate all possible legitimate reasons for terminating Ortega’s
employment, it fails to support an inference that it was more
likely than not Reisz based her decision on an impermissible
consideration.
D. Conclusion
In sum, unrebutted evidence that Reisz did not know about
Ortega’s complaints, and drafted her corrective action
memorandum before she made them, established that Reisz could
not have retaliated against Ortega because of the complaints.
The jury’s finding that Reisz retaliated against Ortega, and
therefore its verdict, were thus unsupported by substantial
evidence.
15
E. Other Contentions
CWW raises several further arguments: (1) No substantial
evidence supports any other cause of action; (2) punitive damages
were improper because the jury never found that CWW’s
managing agent acted with malice, fraud, or oppression; (3) the
damages award was unsupported by substantial evidence; and (4)
the attorney fees award was improper.
We need not reach these arguments. Each of the causes of
action that went to trial was predicated on retaliation. For
example, Ortega alleged no severe emotional distress resulting
from anything other than CWW’s retaliation, and no wrongful
termination other than in retaliation to her meal break
complaints. Given our conclusion that no evidence supported
Ortega’s claim of retaliation, those other causes of action were
similarly unsupported. The judgment as to all causes of action
that went to trial must therefore be reversed, along with the
damages and attorney fee awards.
DISPOSITION
The judgment is affirmed insofar as it awards Ortega
$1,500 on her cause of action for failure to produce her personnel
file. Otherwise, the judgment, along with the damages and fee
awards, are reversed.
Respondent is to recover costs on appeal.
NOT TO BE PUBLISHED
CHANEY, J.
We concur:
ROTHSCHILD, P. J. BENDIX, J.
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