10Steven J. Joffe, Esq., SBN #108419 David D. Kremenetsky, Esq., SBN #217359 WILSON, ELSER, MOSKOWITZ, EDELMAN DICKER LLP 555 South Flower Street, Suite 2900 Los Angeles, California 90071 Telephone: (213) 443-5100 Facsimile: (213) 443-5101 Attorneys for Defendants, SL FOODS, INC., erroneously named and sued as LS FOODS, INC. and JULIO CASTANEDA at I m?n-u . FEB 2 9 2016 Deputy SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF LOS ANGELES STANLEY MOST COURTHOUSE REYNA HINOJOSA, an individual; JORGE ANDRADE MARQUEZ, an individual, Plaintiffs, v. JLS FOODS, INC., a California Corporation; ILM EMPLOYMENT GROUP, INC., a California Corporation; FAIRWAY STAFFING SERVICES, a California Corporation; JULIO CASTANEDA, an individual; and DOES 1-10, inclusive, Defendants. 1 Case No: BC560001 Hon. Stephanie Bowick Dept: 19 OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION [Filed concurrently with Memorandum of Points and Authorities, Separate Statement of Undisputed Material Facts, Declaration of David D. Kremenetsky, Declaration of Marco Melgar, Index of Exhibits and Proposed Order] Date: May 12, 2016 Time: 8:30 am. Dept: ?19? Reservation No.: 151222091176 Complaint Filed: October 9, 2014 Trial Date: June 14, 2016 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT, OR IN THE SUMMARY ADJUDICATION 1 2407738v.l 10 11' 13 14?; 15: 163 19 AUTHORITY FOR MOTION FOR SUMMARY JUDGMENT AND 20E IV. DEFENDANTS CANNOT BE HELD LIABLE FOR REYNA 23; TABLE OF CONTENTS I. INTRODUCTION .. 2 II. STATEMENT OF FACTS .. 3 A. ReynA Hinojosa Was a Temorporary Employee Who was Placed at JSL Pursuant to Staf?ng Agency Agreements With ILM and Fairway .. 3 B. Julio Castaneda Was The Plant Manager at JSL .. 4 C. Reyna Hinojosa Alleges that Plant Manager, Julio Castaneda, Began Staring at Her Beginning in July 2013 .. 4 D. Julio Castaneda Never Had a Private Conversation with Hinojosa .. 5 .E. February 3, 2014 Cell Phone Call to Reyna Jinojos .. 6 F. Investigation of Hinojosa?s Sexual Harassment Complaint Against Castaneda .. 6 G. JSL Did not Take Any Adverse Employment Action Against Hinojosa, Did Not Retaliate Against Her in any Way and Did Not Trminate Her Employment .. 7 H. Hinojosa?s DFEH Complaint .. 7 I. Pursuant to Written Policy, JSL Terminated the Employment of Marquez For Job Abandonment .. 7 SUMMARY ADJUDICATION .. 8 FIRST CAUSE OF ACTION FOR SEXUAL HARASSMENT IN VIOLATION OF FEHA .. 10 A. Reyna Hinojosa Cannot Prove Severe or Pervasive Harassing Conduct on the Part of Julio Castaneda .. 10 B. Reyna Hinojosa Failed to File Her Administrative Claim with DFEH Within One Year of the Alleged Harassing Conduct on the Party of Julio Castaneda .. 11 V. DEFENDANTS CANNOT BE HELD LIABLE FOR REYNA FIFTH CAUSE OF ACTIN FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRIESS .. 12 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION i 240773 8v.1 Reyna Hinojosa Cannot Prove That the Conduct of JSL and Julio Castaneda Was Outrageous .. 13 Reyna Hinojosa Cannot Prove That SL and Julio Castaneda Intended to Cause Her Emotional Distress or Acted in Reckless Disregard of the Probability That She Could Suffer Emotional Distress. .. 13 Reyna Hinojosa Cannot Prove Emotional Distress of Such Substantial Quantity or Enduring Quality so as to Constitute ?Severe Emotional Distress? .. 13 VI. JSL CANNOT BE HELD LIABLE FOR REYNA SECOND CAUSE OF ACTION FOR FAILURE TO PREVENT SEXUAL HARASSMENT IN VIOLATION OF FEHA .. 14 VII. SL CANNOT BE HELD LIABLE FOR REYNA THIRD CAUSE OF ACTION FOR RETALIATION FOR ENGAGING IN PROTETED ACTIVITY IN VIOLATION OF FEHA, FOURTH CAUSE OF ACTION FOR WRONGFUL TERMINATION IN VIOLATION OF FEHA AND SIXTH CAUSE OF ACTION FOR WRONGFUL TERMINATION IN VIOLATION OF PUBLIC POLICY .. 14 ii 2407738v.l JSL HAD LEGITIMATE, NON-RETALIATORY BUSINESS REASON FOR TERMINATIN JORGE ANDRADE EMPLOYMENT .. 15 IX. CONCLUSION .. 17 ii MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION 28' CASES Accardi v. Superior Court (1993) 17 Cal.App.4th 341 .. 14 Agarwal 12. Johnson (1979) 25 Cal.3d 932 .. 15 Aguilar v. Atlantic Richfzeld Co. (2001) 25 Cal.4th 826 .. 11 Christensen v. Superior Court (1991) 54 Cal.3d 868 .. 14 Craig Corp. v. County ofLos Angeles (1975) 51 Cal.App.3d 909 .. 11 Davidson v. City of Westminster (1982) 32 Cal.3d 197 .. 15 DeLeon v. Commercial Manufacturing and Supply Co. (1983) 148 Cal.App.3d 336 .. 11 Denney v. Universal City Studios, Inc. (1992) 10 Ca1.App.4th 1226 .. 14 Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590 .. 12 Fletcher v. Western Life Insurance Co. (1970) 10 Cal.App.3d 376 .. 16 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION 2407738v.1 Harris v. City of Santa Monica (2013) 56 Cal.4th 203 .. 16 Martin 12. Lockheed Missiles Space Co. (1994) 29 Ca1.?App.4th 1718 .. 14 Molko v. Holy Spirit Assoc. (1988) 40 Cal.3d 1092 .. 11 Pena v. W.H. Douthitt Steel Supply Co. (1986) 179 Ca1.App.3d 924 .. 11 People v. Rath Packing Co. . (1974) 44 Ca1.App.3d 56 .. 11 Potter v. Firestone Tire and Rubber Co. (1993) 6 Cal.4th 965 .. 14, 16 Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798 .. 14 Rojo v. Kliger (1990) 52 Cal.3d 65 .. 14 Romano v. Rockwell International, Inc. (1996) 14 Cal.4th 479 .. 14 White v. Ultramar, Inc. (1999) 21 Cal.4th 563 .. 15 iv MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION iv 2407738v.1 STATUTORY AUTHORITIES Code Civ. Proc., 4370 .. 4, 5 Code Civ. Proc., 437c(f)(1) .. 11 Code Civ. Proc., 437c(0)(2) .. 11 ADDITIONAL AUTHORITIES Rest.2d Torts, 46, com. 15 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION 2407738v.l INTRODUCTION Defendants, JLS FOODS, INC. and JULIO CASTANEDA (collectively ?Defendants?), are moving for summary judgment, or in the alternative, summary adjudication, pursuant to Code of Civil Procedure Section 4370, against Plaintiffs, REYNA HINOJOSA and JORGE ANDRADE MARQUEZ (collectively ?Plaintiffs?), and each of them, based on the following alternate grounds: 1. Defendants cannot be held liable for REYNA First Cause of Action for Sexual Harassment in Violation of FEHA, because REYNA HINOJOSA cannot prove severe or pervasive harassing conduct on the part of JULIO 2. Defendants cannot be held liable for REYNA First Cause of Action for Sexual Harassment in Violation of FEHA, because REYNA HINOJOSA failed to ?le her administrative claim with DFEH within one year of the alleged harassing conduct on the part of JULIO 3. Defendants cannot be held liable for REYNA Fifth Cause of Action for Intentional In?iction of Emotional Distress, because REYNA HINOJOSA cannot prove that the conduct of SL or JULIO CASTANEDA was outrageous; 4. Defendants cannot be held liable for REYNA Fifth Cause of Action for Intentional In?iction of Emotional Distress, because REYNA HINOJOSA cannot prove that SL or JULIO CASTANEDA intended to cause her emotional distress or acted with reckless disregard of the probability that she would suffer emotional distress; 5. Defendants cannot be held liable for REYNA Fifth Cause of Action for Intentional In?iction of Emotional Distress, because REYNA HINOJOSA cannot prove emotional distress of such substantial quantity or enduring quality so as to constitute ?severe emotional distress?; 6. SL cannot be held liable for REYNA Second Cause of Action for Failure to Prevent Sexual Harassment in Violation of FEHA, because REYNA HINOJOSA cannot prove severe or pervasive harassing on the part of JULIO MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION 2 2407738V.l JSL cannot be held liable for REYNA Second Cause of Action for Failure to Prevent Sexual Harassment in Violation of FEHA, because REYNA HINOJOSA failed to ?le her administrative claim with DFEH within one year of the alleged harassing conduct on the part of JULIO 8. JLS cannot be held liable for REYNA Third Cause of Action for Retaliation for Engaging in Protected Activity in Violation of FEHA, because REYNA HINOJOSA cannot prove any adverse employment action against her on the part of 9. JLS cannot be held liable for REYNA Fourth Cause of Action for Wrongful Termination in Violation of FEHA and Sixth Cause of Action for Wrongful Termination in Violation of Public Policy, because REYNA HINOJOSA cannot prove that her employment was terminated by and 10. SL cannot be held liable for JORGE ANDRADE Third Cause of Action for Retaliation for Engaging in Protected Activity in Violation of FEHA, Fourth Cause of Action for Wrongful Termination in Violation of FEHA and Sixth Cause of Action for Wrongful Termination in Violation of Public Policy, because SL had a legitimate, non-retaliatory business reason for terminating his employment. Therefore, pursuant to Code of Civil Procedure Section 437C, Defendants submit that they are entitled to summary judgment, or in the alternative, summary adjudication, against Plaintiffs. For all the reasons stated herein, Defendants prays for judgment in their favor and against Plaintiffs and that Plaintiffs? Complaint against them be dismissed, in its entirety, with prejudice. II. STATEMENT OF FACTS A. Reyna Hinojosa Was a Temporary Employee Who Was Placed at JSL Pursuant to Staffing Agency Agreements With ILM and Fairway. Plaintiff, REYNA HINOJOSA was a temporary employee of The Industrial Labor Management Group, Inc. that worked at SL pursuant to the Contract for Human Services between ILM and SL. Upon the conclusion of relationship with MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION 3 2407738V.l ILM, HINOJOSA became a temporary employee of Fairway Staf?ng and . at ILM until November 1, 2013. (Undisputed Fact No. 4.) Initially, work at SL 2013, she began to operate the machine. She continued to operate the machine in the Packaging worked brie?y at SL pursuant to the Staffing Vendor Agreement between FAIRWAY and SL. (U ndiSputed Fact No. 3.) HINOJOSA allegedly reported to work at SL for the ?rst time in January of 2013. At that time, she was placed in the Packaging Department, which was supervised by Socorro Espinoza. However, according to ILM records, HINOJOSA did not apply to work consisted of placing packages into a machine. Approximately three months later, in mid?March Department until approximately June 2013, at which time Ms. Espinoza requested that her assistance with packaging tortillas. HINOJOSA continued working in the Packaging Department through early July 2014. (Undisputed Fact No. 5.) B. Julio Castaneda Was The Plant Manager at JSL. Defendant, JULIO CASTANEDA was the plant manager. (Undisputed Fact No. 7.) CASTANEDA, as plant manager, needed to walk the premises to make certain the operation was proceeding on a day-to-day basis. That was his job. On a day? to-day basis, HINOJOSA would see CASTANEDA walking from the kitchen area to the machines, checking what was going on with the workers. (Undisputed Fact No. 11.) HINOJOSA claims she initially met CASTANEDA in January 2013, as he was walking around the entire work area to supervise everybody?s work. (Undisputed Fact No. 6.) C. Reyna Hinojosa Alleges that Plant Manager, Julio Castaneda. Began Staring at Her Beginning in July 2013. According to HINOJOSA, beginning in July 2013, CASTANEDA would regularly stand near the machine where she was working and stare at her, like he wanted to undress her. HINOJOSA alleges that CASTANEDA would pass by, stare at her and smile. HINOJOSA claims that CASTANEDA did so in front of his own wife, Angelica, who was working alongside HINOJOSA in the Packaging Department, as well as other packers, including, but not limited to, Miguel, Simon, Leopoldo, Virginia and Socorro21 (Undisputed Fact N0. 8.) MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION 4 2407738V.1 HINOJOSA claims that when she took her breakfast break or was about to get her lunch, she would feel that someone was staring at her. HINOJOSA alleges that when she would turn around, she would see CASTANEDA staring at her and smiling. HINOJOSA claims that when she ?rst became aware of staring, in July 2013, it was happening almost every day, at least four times a week. HINOJOSA contends that CASTANEDA would stare at her for about two minutes at a time. (Undisputed Fact No. 9.) HINOJOSA alleges she would also see CASTANEDA staring at her in the kitchen area, the machine area and the passageway, when it was time to punch in and out. (Undisputed Fact No. 12.) She ignored alleged staring and did not report it to anybody. She would just turn to look at him and then she would turn away. Nothing was said between them. (Undisputed Fact No. 10.) At no point in time did HINOJOSA complain to anyone CASTANEDA was staring at her. (Undisputed Fact Nos. 15 and 20.) As early as July of 2013, HINOJOSA felt that it was futile to report conduct to anybody, because CASTANEDA was in charge and she needed her job. (Undisputed Fact No. 57.) D. Julio Castaneda Never Had a Private Conversation with Hinojosa. HINOJOSA and CASTANEDA never had a private conversation during the entire time HINOJOSA worked at SL and CASTANEDA never forced her to have such a conversation.l (Undisputed Fact No. 14.) Except for one time when HINOJOSA approached CASTANEDA to inquire into a possibility of a permanent position with SL2, CASTANEDA never spoke to HINOJOSA until January of 2014. (Undisputed Fact No. 6.) On July 2, 2014, CASTANEDA was helpful to HINOJOSA when he told her that SL was changing agencies to Fairway, that he HINOJOSA claims that between January 2014 and February 2014, CASTANEDA tried to speak with her in private on two occasions. HINOJOSA claims that the ?rst time, he told her he wanted to speak to her in private, but Socorro was passing by and he said, ?Later.? HINOJOSA claims that the second time, he called her over and told her he wanted to speak to her in private, but because Miguel was present CASTANEDA said, ?Okay, later.? (Undisputed Fact No. 16.) 2 HINOJOSA alleges that in December 2013, she approached CASTANEDA and asked him if it was true that JSL was offering permanentjobs, because she wanted to be part of the company and her immigration documents were in order. HINOJOSA claims that CASTANEDA said, among other things, that she should speak about it with her supervisor, Socorro. (UndiSputed Fact No. 7.) 5 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION 5 2407738v.l liked her work and that she might want to apply through Fairway. (Undisputed Fact No. 13.) CASTANEDA never asked HINOJOSA for favors in exchange for information he gave her on the permanent job at JSL and the Fairway position and he never physically touched her. (Undisputed Fact No. 14.) E. February 3, 2014 Cell Phone Call to Reyna Hinojosa. HINOJOSA alleges that on February 3, 2014, at 1:51 pm, CASTANEDA called her cell phone, while she was on her way home in a car driven by Plaintiff, JORGE ANDRADE MARQUEZ HINOJOSA claims that she turned on the speakers on her cell phone, so that MARQUEZ could hear the conversation. She claims that, during this call, CASTANEDA asked HINOJOSA whether she wanted to have a threesome with him and that after she refused he asked her whether she has some girlfriends for some of his friends. HINOJOSA said she didn?t have any girlfriends and hung up. (Undisputed Fact No. 17.) HINOJOSA claims she reported February 3, 2014 phone call to ILM. (Undisputed Fact No. 18.) F. Investigation of Hinoiosa?s Sexual Harassment Complaint Against Castaneda. I Gina Mendoza of ILM conducted an investigation of claims of sexual harassment against CASTANEDA. As part of her investigation, she interviewed HINOJOSA, CASTANEDA and MARQUEZ. She was trying to determine whether on February 3, 2014, CASTANEDA called HINOJOSA on the cell phone and asked her whether she wanted to do a trio. (Undisputed Fact No. 19.) During her interview with CASTANEDA, he told her that his friends were having a party and that he called her to ask her if she had two friends that would want to go to a party. (Undisputed Fact No. 24.) Upon completing her investigation of sexual harassment complaint against CASTANEDA, she concluded as follows: ?It is my opinion that there may have been a phone call. The fact that the witness was a co?worker that Hinojosa ride with daily does not con?rm what she said. I came to this conclusion based on my interview with Hinojosa and Castaneda as well as the information I gathered from Teiji Ougner of SL FOODS INC. While I can?t MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION 6 240773 8v.l NONLII 28: substantiate this ?nding, it appears that Castaneda had no bad intentions inviting Hinojosa to a party.? (Undisputed Fact No. 26.) During investigation, HINOJOSA was placed at a different ILM client, Forever 21. (Undisputed Fact No. 22.) However, after the conclusion of investigation, HINOJOSA asked to be assigned again to SL. (Undisputed Fact No. 25.) This is the only sexual harassment complaint that HINOJOSA made to MENDOZA. (UndiSputed Fact No. 19.) There were no other phone calls from CASTANEDA. (Undisputed Fact No. 27.) G. JSL Did Not Take Any Adverse Employment Action Against Hinojosa, Did Not Retaliate Against Her in Any Way and Did Not Terminate Her Employment. At no point in time did SL take any adverse employment action against HINOJOSA. (Undisputed Fact No. 204.) At no point in time did SL retaliate against HINOJOSA for any reason, including, but not limited to, her sexual harassment complaint against CASTANEDA. (Undisputed Fact No. 205.) At no point in time did JSL terminate employment, ask FAIRWAY to terminate the employment or place HINOJOSA on a do not hire list. H. Hinoiosa?s DFEH Complaint. On July 14, 2014, HINOJOSA ?led her administrative complaint with the Department of Fair Employment and Housing. Among other things, this complaint makes no mention of CASTANEDA allegedly staring at HINOJOSA. (Undisputed Fact No. 58.) 1. Pursuant to Written Policy, JSL Terminated the Employment of Marquez For Job Abandonment. In approximately 2009, MARQUEZ initially began working at JSL through ILM, a 3 staf?ng agency. MARQUEZ became a regular full?time employee of SL on January 8, 2014. (Undisputed Fact No. 222.) MARQUEZ was employed by SL from approximately January 8, 2014 through March 20, 2014. (Undisputed Fact No. 223.) MARQUEZ claims he overheard cell phone conversation on February 3, 2014 and two days later reported it to Chris Tomayo and Marco Melgar of SL. MARQUEZ allegedly expressed his concern for his job, because of his report of alleged sexual harassment MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION 7 2407738v.1 March 19, 2014. (Undisputed Fact No. 227.) I abandonment, after he unexpectedly failed to appear for work on three consecutive days (March 0 0 against CASTANEDA, and was assured by Marco Melgar that he ?cannot be ?red for telling the truth.? (Undisputed Fact No. 224.) Disciplinary Action Policy, states as follows, in relevant part: ?Violation of any of the following rules, or any other actions deemed extremely serious by management, may be considered adequate justi?cation for discharge for the ?rst offense: Absence for three consecutive workdays without notifying JSL Foods, Inc. (except in extenuating circumstances)? (Undisputed Fact No. 225.) Pursuant to vacation policy, MARQUEZ became eligible for ?ve (5) days of vacation in the calendar year 2014, after having worked a minimum of 1,000 hours between January 1, 2013 and December 31, 2013. He took his entire ?ve (5) days of eligible vacation, for the calendar year 2014, on February 17that year. (Undisputed Fact No. 230.) MARQUEZ failed to call or leave a message for SL on three consecutive days (March 17, 2014, March 18, 2014 and March 19, 2014), to advise SL as to the reason he failed to appear for work on said days. (Undisputed Fact No. 228.) He did not receive approval for his absences on March 17, 2014, March 18, 2014 and March 19, 2014. (Undisputed Fact No. 226.) MARQUEZ was not scheduled to take a vacation on March 17, 2014, March 18, 2014 and JSL terminated employment, effective March 20, 2014, for job 17, 2014, March 18, 2014 and March 19, 2014), without calling or leaving a message. (Undisputed Fact No. 229.) At no point in time did SL retaliate against MARQUEZ for any reason. (Undisputed Fact No. 231.) AUTHORITY FOR MOTION FOR SUMMARY JUDGMENT AND SUMMARY ADJUDICATION defendant is entitled to summary judgment if the record establishes as a matter of law that none of the plaintiff?s asserted causes of act'kon can prevail.? Molko v. Holy Spirit Assoc. MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION 8 2407738V.l (1988) 40 Cal.3d .1092, 1107. Code of Civil Procedure 437c(o)(2) provides: defendant or cross-defendant has met his or her burden of showing that a cause of action has not merit if that party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action. Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross?complainant to show that a triable issue of one or more material facts exists as to that cause of action or defense thereto.? A motion for summary judgment must be granted, if all the papers submitted show there A is ?no triable issue as to any material fact that the moving party is entitled to a judgment as a matter of law.? C.C.P. ?437(c). There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to ?nd the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof. Aguilar v. Atlantic Rich?eld Co. (2001) 25 Cal.4th 826, 850. The trial judge determines whether triable issues of fact exist by examining the af?davits and evidence, including any reasonable inferences, which may be drawn from the facts. People v. Rath Packing Co. (1974) 44 Cal.App.3d 56, 61?64. A party cannot avoid summary judgment based on mere speculation and conjecture, but instead must produce admissible evidence raising a triable issue of fact. Pena v. W.H. Douthitt Steel Supply Co. (1986) 179 Cal.App.3d 924, 931; Craig Corp. v. County of Los Angeles (1975) 51 Cal.App.3d 909, 915. The purpose of summary judgment is to protect the parties from unsubstantial or meritless claims and to expedite the administration of justice by eliminating the trial of unnecessary issues. DeLeon v. Commercial Manufacturing and Supply Co. (1983) 148 Cal.App.3d 336, 342. In addition, Code of Civil Procedure Section 437c(f)(1), authorizes a party to move for summary adjudication, to dispose of a cause of action, an af?rmative defense, a claim for damages, or an issue of duty. Ill 9 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION 9 2407738V.I IV. DEFENDANTS CANNOT BE HELD LIABLE FOR REYNA FIRST CAUSE OF ACTION FOR SEXUAL HARASSMENT IN VIOLATION OF FEHA allegations of sexual harassment on the part of CASTANEDA are not suf?ciently severe or pervasive to alter the conditions of employment or create an abusive working environment. Moreover, as discussed below, HINOJOSA has failed to exhaust her administrative remedies, with respect to her allegations of staring against CASTANEDA. A. Reyna Hinoiosa Cannot Prove Severe or Pervasive Harassing Conduct on the Part of Julio Castaneda. ?For hostile work environment sexual harassment to be actionable, it must be suf?ciently severe or pervasive ?to alter the conditions of the victim?s employment and create an abusive working environment.m Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 609. The factors that can be considered in evaluating the totality of the circumstances are: (1) the nature of the unwelcome sexual acts or works (generally, physical touching is more offensive than unwelcome verbal abuse); (2) the frequency of the offensive encounters; (3) the total number of days over which all of the offensive conduct occurs; and (4) the context in which the sexually harassing conduct occurred. [Citation omitted] Li. at 610. In determining what constitutes ?suf?ciently pervasive? harassment, the courts have held that acts of harassment cannot be occasional, isolated, sporadic, or trivial, rather the plaintiff must show a concerted pattern of harassment of a repeated, routine or a generalized nature. [Citation omitted] I_d. ?While an employee need not prove tangible job detriment to establish a sexual harassment claim, the absence of such detriment requires a commensurater higher showing that the sexually harassing conduct was pervasive and destructive of the working environment.? In this case, allegations of sexual harassment on the part of CASTANEDA are not suf?ciently severe or pervasive to alter the conditions of employment or create an abusive working environment. Evidence shows that HINOJOSA never took her allegation of staring against CASTANEDA She never told CASTANEDA she felt MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION 10 2407738v.l uncomfortable in any way, never complained about it to either SL or ILM and did not even include it in her formal DFEH Complaint, dated July 14, 2014. (Undisputed Fact Nos. 15, 20 and 58.) Her claim that it was futile to report conduct to anybody, because CASTANEDA was in charge and she needed her job, is incongruous with the facts and her own later actions. (Undisputed Fact No. 57.) HINOJOSA did not feel it was futile to report February 3, 2014 cell phone call. Even then, she never mentioned alleged staring. (UndiSputed Fact Nos. 17 and 18.) If alleged staring was really that serious and pervasive, surely she would have mentioned it to MENDOZA at the time she was making a sexual harassment complaint against CASTANEDA. On February 6, 2014, MENDOZA took notes of all her complaints. However, staring never came up. CASTANEDA was the plant manager and it was part of his job duties to watch all employees. (Undisputed Fact Nos. 6, 7 and 11.) If HINOJOSA subjectively felt uncomfortable with how CASTANEDA performed his job duties, she could have easily mentioned it to him in such a manner that he would have never taken offense and would never reasonably jeopardize her job. Furthermore, Plaintiff?s claim that CASTANEDA began staring at her in July 2013 is inconsistent with the fact that, according to her ILM Employment Application, she did not apply to work at ILM until November 1, 2013. (Defendants? Index of Exhibits, Exhibit 14, ILM Documents, ILM 00074.) According to CASTANEDA, he called HINOJOSA on February 3, 2014 only to invite her to a family party and ask her if she had two friends who would like to attend. (Undisputed Fact No. 24.) One such call is neither severe nor pervasive. He only asked once, did not persist in his request and never called again. B. Reyna Hinojosa Failed to File Her Administrative Claim with DFEH Within One Year of the Alleged Harassing Conduct on the Part of Julio Castaneda. Under the FEHA, the employee must exhaust the administrative remedy provided by the statute by ?ling a complaint with the DFEH and must obtain from the Department a notice of right to sue in order to be entitled to ?le a civil action in court based on violations of the FEHA. MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION 11 2407738v.1 10Gov.Code, 12960, 12965, subd. Rojo v. Kliger (1990) 52 Cal.3d 65, 88; Martin v. Lockheed Missiles Space Co. (1994) 29 Cal.App.4th 1718, 1724. The timely ?ling of an . administrative complaint is a pre-requisite to the bringing of a civil action for damages under the i FEHA. Accardi v. Superior Court (1993) 17 Cal.App.4th 341, 349; Denney v. Universal City Studios Inc. (1992) 10 Cal.App.4th 1226,1232. As for the applicable limitation period, the FEHA provides that no complaint for any violation of its provisions may be ?led with the Department ?after the expiration of one year from the date upon which the alleged unlawful practice or refusal to cooperate occurred,? with an exception for delayed discovery not relevant in this action. Gov.Code, 12960; Romano v. Rockwell Int?l., Inc. (1996) 14 Cal.4th 479, 492. A continuing violation exists if: (1) the conduct occurring within the limitations period is similar in kind to the conduct that falls outside the period; (2) the conduct was reasonably frequent; and (3) it had not yet acquired a degree of permanence. (Richards v. CHZM Hill, Inc. (2001) 26 Cal.4th 798, 823.) However, here, as early as July of 2013, HINOJOSA felt that it was futile to report conduct to anybody, because CASTANEDA was in charge and she needed her job. (Undisputed Fact No. 57.) Therefore, HINOJOSA claim of staring acquired a degree of permanence and her DFEH complaint should have been ?led within one year of that time. There is no evidence that it was. Furthermore, DFEH Complaint does not even mention staring. Therefore, she is precluded from making this claim. V. DEFENDANTS CANNOT BE HELD LIABLE FOR REYNA FIFTH CAUSE OF ACTION FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS ?The elements of the tort of intentional in?iction of emotional distress are: 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.?? Christensen V. Superior Court (1991) 54 Cal.3d 868, 903 [internal citation omitted]; Potter v. Firestone Tire and Rubber Co. (1993) 6 Cal.4th 965, 1001. 12 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION 12 2407738v.l Reyna Hinoiosa Cannot Prove That the Conduct of JSL and Julio Castaneda Was Outrageous. ?Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.? Davidson v. City of Westminster (1982) 32 Cal.3d 197, 209. 1 ?[L]iability ?does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. .. There is no occasion for the law to intervene . . . where someone?s feelings are hurt.? Agarwal v. Johnson (1979) 25 Cal.3d 932, 946 (quoting Rest.2d Torts, 46, com. d, overruled on other grounds in White v. Ultramar. Inc. (1999) 21 Cal.4th 563, 579?580). The is nothing outrageous on the part of CASTANEDA in allegations. Even if the court accepts the staring allegation as true, the facts show it to be nothing more than petty indignities, annoyances and trivialities that HINOJOSA is trying to blow out of proportion after the fact. There is also nothing extreme and outrageous about February 3, 3014 telephone call. There is no occasion here for the law to intervene. I B. Reyna Hinoiosa Cannot Prove That JSL and Julio Castaneda Intended to Cause Her Emotional Distress or Acted in Reckless Disregard of the Probability That She Could Suffer Emotional Distress. There is no evidence that CASTANEDA intended to cause HINOJOSA emotional distress or acted in reckless probability that HINOJOSA would suffer emotional distress. She never told CASTANEDA she felt uncomfortable in any way, never complained about it to anyone. (Undisputed Fact Nos. 15, 20 and 58.) According to CASTANEDA, he called HINOJOSA on February 3, 2014 only to invite her to a family party and ask her if she had two friends who would like to attend. (UndiSputed Fact No. 24.) One such call is insuf?cient to show any intent on his part to cause her emotional distress. He only asked once, did not persist in his request and never called again. C. Reyna Hinoiosa Cannot Prove Emotional Distress of Such Substantial Quantity or Enduring Quality so as to Constitute ?Severe Emotional Distress.? ?Severe emotional distress [is] emotionabdistress of such substantial quantity or enduring MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION 13 2407738v.1 1 quality that no reasonable [person] in a civilized society should be expected to endure it.? 2 Fletcher v. Western Life Insurance Co. (1970) 10 Cal.App.3d 376, 397; Potter, supra, 6 Cal.4th 3 at 1004. HINOJOSA cannot prove severe emotional distress arising out of any conduct on the 4 part of CASTANEDA or JSL. 5 VI. 6 JSL CANNOT BE HELD LIABLE FOR REYNA I 7 SECOND CAUSE OF ACTION FOR FAILURE TO PREVENT SEXUAL 8 HARASSMENT IN VIOLATION OF FEHA 9 For the same reasons as discussed above in Section V, with respect to her First Cause of 10 Action, JSL cannot be held liable to HINOJOSA for her Second Cause of Action for Failure to 11 Prevent Sexual Harassment in Violation of FEHA. 12 VII. 13 JSL CANNOT BE HELD LIABLE FOR REYNA 14 THIRD CAUSE OF ACTION FOR RETALIATION FOR ENGAGING IN 15 PROTECTED ACTIVITY IN VIOLATION OF FEHA, FOURTH CAUSE OF 16 ACTION FOR WRONGFUL TERMINATION IN VIOLATION OF 17 FEHA AND SIXTH CAUSE OF ACTION FOR WRONGFUL 18 TERMINATION IN VIOLATION OF PUBLIC POLICY 19 In FEHA employment discrimination cases that do not involve mixed motives, California 20 courts have adopted the three?stage burden-shifting test. Harris v. City of Santa Monica (2013) 21 56 Cal.4th 203, 214. A plaintiff has the initial burden to make a prima facie case of 22 discrimination by showing that it is more likely than not that the employer has taken an adverse It? 23 employment action based on a prohibited criterion. Id; This establishes a presumption of 24 discrimination. Li. The employer may rebut the presumption by producing evidence that its i' 25 action was taken fora legitimate, nondiscriminatory reason. If the employer discharges this 26 burden, the presumption of discrimination disappears and plaintiff must then show that the "i 27 employer?s proffered nondiscriminatory reason was actually a pretext for discrimination, and the {j r: 28 plaintiff may offer any other evidence of discriminatory motive. at 214-215. ?The ultimate MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADIUDICATION l4 2407738v.1 l??mr 7 burden of persuasion on the issue of discrimination remains with the plaintif [Citation omitted] 11. at 215. At no point in time did SL take any adverse employment action against HTNOJOSA. (Undisputed Fact No. 204.) At no point in time did SL retaliate against HINOJOSA for any reason, including, but not limited to, her sexual harassment complaint against CASTANEDA. (Undisputed Fact No. 205.) At no point in time did SL terminate employment, ask FAIRWAY to terminate the employment or place HINOJOSA on a do not hire list. JSL HAD A LEGITIMATE, NON-RETALIATORY BUSINESS REASON FOR TERMINATING JORGE ANDRADE EMPLOYMENT To prevail in his SL Third Cause of Action for Retaliation for Engaging in Protected Activity in Violation of FEHA, Fourth Cause of Action for Wrongful Termination in Violation of FEHA and Sixth Cause of Action for Wrongful Termination in Violation of Public Policy, Plaintiff, JORGE ANDRADE MARQUEZ, must produce evidence suf?cient to show that an illegitimate criterion was a substantial factor in decision to terminate his employment. However, no such competent evidence exists. Conversely, SL has produced competent evidence that it terminated his employment for a legitimate, non-discriminatory business reason. In approximately 2009, MARQUEZ initially began working at SL through ILM, a staf?ng agency. MARQUEZ became a regular full-time employee of SL on January 8, 2014. (Undisputed Fact No. 222.) MARQUEZ was employed by SL from approximately January 8, 2014 through March 20, 2014. (Undisputed Fact No. 223.) MARQUEZ claims he overheard cell phone conversation on February 3, 2014 and two days later reported it to Chris Tomayo and Marco Melgar of SL. MARQUEZ allegedly expressed his concern for his job, because of his report of alleged sexual harassment against CASTANEDA, and was assured by Marco Melgar that he ?cannot be ?red for telling the truth.? (Undisputed Fact No. 224.) Disciplinary Action Policy, states as follows, in relevant part: ?Violation of any of the following rules, or any other actions deemed gxtremely serious by management, may be MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION 15 2407738v.1 1 considered adequate justi?cation for discharge for the ?rst offense: Absence for three 2 consecutive workdays without notifying SL Foods, Inc. (except in extenuating circumstances)? 3 (Undisputed Fact No. 225.) Pursuant to vacation policy, MARQUEZ became eligible for ?ve (5) days of vacation in the calendar year 2014, after having worked a minimum of 1,000 hours between 6 January 1, 2013 and December 31, 2013. He took his entire ?ve (5) days of eligible vacation, for 7 the calendar year 2014, on February 17that year. (Undisputed Fact No. 8 230.) 9 MARQUEZ failed to call or leave a message for SL on three consecutive days (March 10 17, 2014, March 18, 2014 and March 19, 2014), to advise SL as to the reason he failed to appear 11 for work on said days. (Undisputed Fact No. 228.). He did not receive approval for his 12 absences on March 17, 2014, March 18, 2014 and March 19, 2014. (Undisputed Fact No. 226.) 13 MARQUEZ was not scheduled to take a vacation on March 17, 2014, March 18, 2014 and 14 March 19,2014. (UndiSputed Fact No. 227.) 15 SL terminated employment, effective March 20, 2014, for job 16 abandonment, after he unexpectedly failed to appear for work on three consecutive days (March 17 17, 2014, March 18, 2014 and March 19, 2014), without calling or leaving a message. 18 (Undisputed Fact No. 229.) At no point in time did SL retaliate against MARQUEZ for any 19 reason. (Undisputed Fact No. 231MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION 16 240773 8v. 1 IX. CONCLUSION For all the foregoing reasons, Defendants submit that they are entitled to Summary Judgment, or in the alternative, Summary Adjudication, against Plaintiff. Defendants pray for judgment in their favor and against Plaintiffs, and each of them, and that Plaintiffs? Complaint against them be dismissed, in its entirety, with prejudice. Dated: February 26, 2016 WILSON, ELSER, MOSKOWITZ, EDELMAN DICKER LLP 3.1 D. trimmer; Steven J. Joffe David D. Kremenetsky Attorneys for Defendants, JSL FOODS, INC. and JULIO CASTANEDA 17 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION l7 2407738v.l PROOF OF SERVICE Hinojosa, et at. v. JLS Foods, Inc., et at. Case No. BC560001 Attorneys for Defendants, JSL Foods, Inc. and Julio Castaneda Our File No. 16144.00001 STATE OF CALIFORNIA, COUNTY OF LOS ANGELES I am employed in the County of Los Angeles, State of California. I am over the age of 18 and not a party to the within action; my business address is 555 South Flower Street, Suite 2900, Los Angeles, California 90071. On February 26, 2016, I served the foregoing document described as MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION by placing the true copy(ies) the original(s) thereof enclosed in sealed envelopes addressed as follows: SEE ATTACHED SERVICE LIST by mail. I am ?readily familiar? with my ?rrn?s collection and processing correspondence for mailing. Under that practice it would be deposited with US. postal service on that same day with postage thereon fully prepaid at Los Angeles, California in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in af?davit. BY PERSONAL SERVICE I caused to be delivered such document by hand to the above-identi?ed recipient through the use of First Legal Attorney Service whose address is: 1517 West Beverly Boulevard, Los Angeles, CA 90026, and whose telephone number is (213) 250-1111. by Federal Express via messenger pickup from our of?ce. by facsimile to of?ces of addresses. Executed on February 26, 2016, at Los Angeles, California. I declare under penalty of perjury under the laws of the State of California that the above is true and correct, and I declare that I am employed in the of?ce of a member of the bar of this court at whose direction the service was made. 1% data. Lori McCartan 18 MEMORANDUM OF AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION 18 2407738v.] 1 SERVICE LIST Hinojosa, et al. V. JLS Foods, et a1. 2 - BC560001 3 Attorneys for Defendants SL Foods, Inc. Julio Castaneda 4 Rick Hicks, Esq. 5 Eugenia Hicks, Esq. HICKS HICKS 6 9595 Wilshire Blvd, Suite 900 7 Beverly Hills, CA 90212 Tel (310) 274-2974; Fax (310) 472-5751 3 eugenia.hicks@hickslaw.net Attorneys for Plaintiffs 9 Justin G. Schmidt, Esq. 10 Daniel G. Emilio, Esq. 11 EMILIO LAW GROUP, APC 12832 Valley View St., #106 12 Garden Grove, CA 92845 (714) 379-6239; fax: (714) 379-5444 13 Attorneys for Defendant, Fairway Staf?ng Services MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION 19 2407738v.1 NW