Complaint (Unlimited) (Fee Applies) - Complaint (Case Initiation) August 26, 2024 (2024)

Case

MAHIN MOTLAGH vs RIGOBERTO HARO et al

Aug 22, 2024 |Other PI/PD/WD Unlimited (23) |Other PI/PD/WD Unlimited (23) |24CV445815

Case

NGOC LE vs WALMART ENTERPRISES, LLC

Aug 27, 2024 |Auto Unlimited (22) |Auto Unlimited (22) |24CV446092

Case

ENTERPRISE FLEET MANAGEMENT, INC. vs STEPHEN CARDENAS

Aug 23, 2024 |Auto Limited (22) - under 10,000 |Auto Limited (22) - under 10,000 |24CV445883

Case

Michael Thomason et al vs Google LLC

Aug 26, 2024 |Mass Tort Unlimited (40) |Mass Tort Unlimited (40) |24CV445997

Case

John Roe DC 90 vs DOE 1 a corporation et al

Aug 26, 2024 |Other PI/PD/WD Unlimited (23) |Other PI/PD/WD Unlimited (23) |24CV445975

Case

Aaron Sells et al vs Google LLC

Aug 28, 2024 |Mass Tort Unlimited (40) |Mass Tort Unlimited (40) |24CV446223

Case

Araceli Nunez vs JTV Investment, Inc.

Aug 23, 2024 |Other PI/PD/WD Unlimited (23) |Other PI/PD/WD Unlimited (23) |24CV445904

Case

CATALINA DIAZ-ALTAMIRANO vs THE BOARD OF TRUSTEES OF THE LELAND STANFORD JUNIOR UNIVERSITY

Aug 26, 2024 |Other PI/PD/WD Unlimited (23) |Other PI/PD/WD Unlimited (23) |24CV446032

Case

Raymond Burns et al vs Google LLC

Aug 28, 2024 |Mass Tort Unlimited (40) |Mass Tort Unlimited (40) |24CV446192

Ruling

ZEIDLER vs COCAHELLA VALLEY JEWELRY AND LOAN, A BUSINESS ENTITY FORM UNKNOWN

Aug 27, 2024 |CVPS2106014

ZEIDLER vs COACHELLAVALLEY JEWELRY AND LOAN, Motion for an Order Vacating Dismissal byCVPS2106014A BUSINESS ENTITY FORM ALINA ZEIDLERUNKNOWNTentative Ruling: Granted.Plaintiff to provide notice to defaulted defendants that motion to set aside has been granted. Courtorder of 1/4/24 is vacated.OSC for failure to file default judgment is continued one additional time to February 26, 2025 at 8:30a.m., Department PS2. Moving party is to be familiar with the requirements of LR 3116 and that 5 dayrequirement regarding why sanctions should not be imposed.

Ruling

Aug 28, 2024 |23CV-0203493

WOODROME VS. NORCAL CONSTRUCTION & RESTORATION, INC.Case Number: 23CV-0203493This matter is on calendar for review regarding trial setting. The previous trial date was vacatedby the Court’s order dated July 2, 2024. The Court designates this matter as a Plan II case andintends to set the matter for trial no later than April 22, 2025. Neither party has posted jury fees.The parties are granted 10 days leave to post jury fees. A failure to post jury fees in that time willbe deemed a waiver of the right to a jury. The parties are ordered to appear to provide theCourt with available trial dates.

Ruling

SANCHEZ SCOMA VS. PIT RIVER CASINO, ET AL.

Aug 27, 2024 |CVCV20-0196121

SANCHEZ SCOMA VS. PIT RIVER CASINO, ET AL.Case Number: CVCV20-0196121This matter is on calendar for review regarding status and trial setting. The Court notes that thedefault judgment against Mike Avelar on July 22, 2024, was improperly entered (no proof ofservice of summons was on file) and the default was therefore vacated. Additionally, the SecondAmended Complaint was filed without leave of Court and was therefore stricken. This matter isnot at issue. An appearance is necessary on today’s calendar to provide the Court with astatus of pleadings and service.

Ruling

FCS056924 - MORENO, MATTHEW D. V. FAIRFIELD FORD (DMS)

Aug 26, 2024 |FCS056924

FCS056924Defendant’s motion to compel responses to supplemental discovery and for sanctionsTENTATIVE RULING Page 5 of 6Defendant’s unopposed motion is granted.Full and complete verified responses without objections to Defendant’s SupplementalInterrogatory shall be served within 15 days of the date of this order.Full and complete verified responses without objections to Defendant’s SupplementalRequest for Production shall be served and responsive documents shall be producedwithin 15 days of the date of this order.Sanctions are imposed against MATTHEW MORENO in the amount of $1,100.00 andare due and payable to defense attorney within 30 days of the date of this order. Page 6 of 6

Ruling

MCCURDY, PAMELA vs LAZO, ISABEL MARIA, MD

Aug 27, 2024 |CV-23-000843

CV-23-000843 – MCCURDY, PAMELA vs LAZO, ISABEL MARIA, MD – Defendant, Matthew James Coates, MD’s Motion for Summary Judgment, or in the alternative, Summary Adjudication – GRANTED, unopposed.The Court finds that Defendants’ moving evidence – including the expert declaration of Dr. Hobarth Harris – establishes Defendant Mathew James Coates M.D. provided care toward Plaintiff during her admission to Memorial Medical Center on March 15, 2022, till her discharge which met the applicable standard of care expected of a gastroenterologist.The Court further finds that Defendant has established the absence of a triable issue of material fact regarding a crucial element of Plaintiff’s medical malpractice claim against Defendant. Notably, there is no factual dispute with regard to the issue of a breach of the applicable standard of care.Furthermore, in the absence of a breach of said standard of care, Plaintiff Ronald McCurdy’s claim for loss of consortium also fails. Therefore, Defendant Mathew James Coates M.D is entitled to entry of summary judgment in his favor herein. (Code of Civil Procedure §473 (c)).Accordingly, the Court hereby GRANTS judgment in favor of Defendant Mathew James Coates, M.D and against Plaintiffs in the instant matter.

Ruling

JIANNA ELIZABETH FUENTES, ET AL. VS NICOLAS ELIAS VALLE, ET AL.

Aug 29, 2024 |23PSCV02608

Case Number: 23PSCV02608 Hearing Date: August 29, 2024 Dept: 6 CASE NAME: Jianna Elizabeth Fuentes, et al. v. Nicolas Elias Valle, et al. 1 - Claimant Eden Lomas Petition for Approval of Compromise of Claim or Action or Disposition of Proceeds of Judgment for Minor or Person with a Disability; 2 - Claimant Emerie Lomas Petition for Approval of Compromise of Claim or Action or Disposition of Proceeds of Judgment for Minor or Person with a Disability; and 3 - Claimant Emma Fuentes Petition for Approval of Compromise of Claim or Action or Disposition of Proceeds of Judgment for Minor or Person with a Disability TENTATIVE RULING The Court DENIES Claimant Eden Lomas petition for approval of compromise of claim or action or disposition of proceeds of judgment for minor or person with a disability without prejudice. The Court DENIES Claimant Emerie Lomas petition for approval of compromise of claim or action or disposition of proceeds of judgment for minor or person with a disability without prejudice. The Court DENIES Claimant Emma Fuentes petition for approval of compromise of claim or action or disposition of proceeds of judgment for minor or person with a disability without prejudice. Petitioner is ordered to provide notice of the Courts ruling and file proof of service of same within five days of the Courts order. BACKGROUND This is an auto accident case. On August 24, 2023, plaintiffs Jianna Elizabeth Fuentes (Petitioner), minor Eden Lomas (Eden), minor Emerie Lomas (Emerie), and minor Emma Fuentes (Emma) (collectively, Plaintiffs) filed this action against defendants Nicolas Elias Valle (Defendant), Joseph Adam Pedroza,[1] and Does 1 through 50, alleging causes of action for motor vehicle and general negligence. On May 21, 2024, the Court approved Petitioners applications and orders for appointment as guardian ad litem for Eden, Emerie, and Emma (collectively, Claimants). On June 6, 2024, Plaintiffs filed a notice of settlement. On August 15, 2024, Petitioner filed petitions for approval of compromise of claim or action or disposition of proceeds of judgment for minor or person with disability on behalf of Claimants. The petitions are unopposed. LEGAL STANDARD Court approval is required for all settlements of a minor's claim or that of a person lacking the capacity to make decisions. (Prob. Code, §§ 2504, 3500, 3600 et seq.; Code Civ. Proc., § 372; see Pearson v. Superior Court (2012) 202 Cal.App.4th 1333, 1337.) "[T]he protective role the court generally assumes in cases involving minors, [is] a role to assure that whatever is done is in the minor's best interests . . . . [I]ts primary concern is whether the compromise is sufficient to provide for the minor's injuries, care and treatment." (Goldberg v. Superior Court (1994) 23 Cal.App.4th 1378, 1382.) A petition for court approval of a compromise under Code of Civil Procedure section 372 must comply with California Rules of Court Rules 7.950, 7.951, and 7.952. The petition must be verified by the petitioner and contain a full disclosure of all information that has "any bearing upon the reasonableness" of the compromise or the covenant. (Cal. Rules of Court, rule 7.950.) The person compromising the claim on behalf of minor, and the represented person, must attend the hearing on compromise of the claim unless the court for good cause dispenses with their personal appearance. (Cal. Rules of Court, rule 7.952(a).) An order for deposit of funds of a minor or person lacking decision-making capacity and a petition for the withdrawal of such funds must comply with California Rules of Court Rules 7.953 and 7.954. (Cal. Rules of Court, rule 3.1384; see also Super. Ct. L.A. County, Local Rules, rules 4.115-4.118.) DISCUSSION Form MC-350 (Rev. January 1, 2021) The petitions have been verified by Petitioner and presented on a fully completed mandatory Judicial Council Form MC-350, using the current January 1, 2021 revision. (Cal. Rule of Court Rule 7.950.) Settlement Claimants agree to settle their respective claims with Defendant in exchange for $8,000.00 each, $3,250.00 of which will go to each Claimant. If approved, $2,000.00 will be paid in attorneys fees, and $2,750.00 will paid to Wellness Involved Chiropractic, leaving a balance of $3,250.00 for each Claimant, to be transferred to a custodian for the benefit of Claimants under the California Uniform Transfers to Minors Act. Court approval is required for all settlements of a minor. (Probate Code, §§ 3600, et seq.; Code Civ. Proc., § 372.) The Court has reviewed the proposed settlement and finds the Petitions do not contain a full disclosure of all information that has any bearing upon the reasonableness of the settlement amount to Claimants, as paragraph 10 of the Petitions is incomplete, and only indicates that Defendant will pay $8,000.00. (See Petitions, ¶ 10.) $8,000.00 seems reasonable given Claimants injuries, but Petitioner needs to properly complete the Petitions. The Court also notes that paragraph 11.b.(5) is incomplete as the names and amounts listed total only $56,000, not the $64,000 total amount offered by Defendant. (See Petitions, ¶11.) Attorney Fees The retained attorney's information has been disclosed as required by Rule of Court 7.951. (Petitions, ¶ 17, subd. (b).) There is an agreement for services provided in connection with the underlying claim. (Petition, ¶ 17, subd. (a)(2).) Copies of the agreements were submitted with the Petitions as required by Rule 7.951, subdivision (6), of the California Rules of Court. (Teroganesyan Decls., Ex. A; Cal. Rules of Court, rule 7.951, subd. (6).) Claimants counsel is seeking to recover $2,000.00 in attorney fees from each Claimant, i.e., 25% of $8,000.00. (Petitions, ¶ 13, subd. (a); Teroganesyan Decls., ¶ 4, Ex. A.) Counsel has provided a declaration addressing the reasonableness of the fee request, as required by Rule 7.955, subdivision (c), of the California Rules of Court, accounting for the factors specified in Rule 7.955, subdivision (b). (Cal. Rules of Court, rule 7.955, subd. (c).) Rule 7.955, subdivision (b), provides: (b) Factors the court may consider in determining a reasonable attorney's fee. In determining a reasonable attorney's fee, the court may consider the following nonexclusive factors: (1) The fact that a minor or person with a disability is involved and the circ*mstances of that minor or person with a disability. (2) The amount of the fee in proportion to the value of the services performed. (3) The novelty and difficulty of the questions involved and the skill required to perform the legal services properly. (4) The amount involved and the results obtained. (5) The time limitations or constraints imposed by the representative of the minor or person with a disability or by the circ*mstances. (6) The nature and length of the professional relationship between the attorney and the representative of the minor or person with a disability. (7) The experience, reputation, and ability of the attorney or attorneys performing the legal services. (8) The time and labor required. (9) The informed consent of the representative of the minor or person with a disability to the fee. (10) The relative sophistication of the attorney and the representative of the minor or person with a disability. (11) The likelihood, if apparent to the representative of the minor or person with a disability when the representation agreement was made, that the attorney's acceptance of the particular employment would preclude other employment. (12) Whether the fee is fixed, hourly, or contingent. (13) If the fee is contingent: (A) The risk of loss borne by the attorney; (B) The amount of costs advanced by the attorney; and (C) The delay in payment of fees and reimbursem*nt of costs paid by the attorney. (14) Statutory requirements for representation agreements applicable to particular cases or claims. (Cal. Rules of Court, rule 7.955, subd. (b).) The Court addresses these factors below. Amount of Fee in Proportion to Value of Services Performed Claimants counsel indicates that the contingency rate for each of the Claimants in this matter is 25%, and claims to have represented Claimants zealously in the prelitigation and litigation phases of this action. (Teroganesyan Decls., ¶¶ 4, 9.) Novelty and Difficulty Claimants counsel provides no information about the novelty or difficulty of this case. The Court infers from the Petitions and attached medical bills that this case was neither novel nor particularly difficult. (See Petitions, Attachment.) Amount Involved and Results Obtained Claimants counsel only mentions a 25% contingency and does not mention the actual dollar amount involved or the results obtained. (See Teroganesyan Decls., ¶ 4.) Nature and Length of Professional Relationship Claimants counsel has been representing Claimants in this action since November of 2021. (Teroganesyan Decls., ¶ 2, Ex. A.) Experience, Reputation, and Ability of Counsel Claimants counsel states that she has extensive experience representing Plaintiffs in personal injury cases. (Teroganesyan Decls., ¶ 8.) Time and Labor Required Claimants counsel provides no information about the amount of work undertaken for this case. Acceptance of Case Precluding Other Employment Claimants counsel does not address whether acceptance of this case precluded other employment. Contingent Fee Claimants counsel accepted Claimants case for a 25% contingency fee. (Teroganesyan Decls., ¶ 4, Ex. A.) Claimants counsel offered to advance the costs associated with this action, and otherwise does not request reimbursem*nt for any costs. (Teroganesyan Decls., ¶ 5; Petitions, ¶ 13, subd. (b).) The Court finds that Claimants counsel has adequately demonstrated the reasonableness of the fee award in light of the factors and circ*mstances in this case. Medical Bills Claimants have each incurred $4,091.50 in medical expenses, but Wellness Evolved Chiropractic has agreed to reduce its liens to $2,750.00 each. (Petitions, ¶ 12, subd. (b)(5); Id., Attachment, p. 23 of pdf.) Costs Claimants counsel is not seeking to recover costs. (Petitions, ¶ 13, subd. (b).) Amount to Be Paid to Claimant The net amount to be paid to each of the Claimants is $3,250.00. (Petitions, ¶ 15.) Disposition of Balance of Proceeds Petitioner requests that the net proceeds, $3,250.00 for each Claimant, be transferred to a custodian for the benefit of the minor under the California Uniform Transfers to Minors Act. (Petitions, ¶ 18, subd. (b)(6).) Petitioner did not provide the name and address of the proposed custodian and the money or other property to be transferred on Attachment 18b(6), as directed in the Petitions. (Id.) The Court needs more information on this, considering that it appears Petitioner is seeking to have the money made payable to her. (Proposed Orders, ¶ 8, subd. (b)(2).) Court Appearance Rule 7.952, subdivision (a), of the California Rules of Court requires attendance by the petitioner and claimant unless the court for good cause dispenses with their personal appearance. (Cal. Rules of Court, rule 7.952, subd. (a).) The Court finds that the appearances of the Claimants are not required due to their minor status. However, the petitioners attendance is required. Prognosis Claimants have recovered completely from the effects of their injuries. (Petitions, ¶ 8, subd. (a).) Proposed Order MC-351 Petitioner has filed a Proposed Order Form MC-351 for each of the Claimants. Incomplete Forms The Court also notes that although the Court approved Petitioners applications and orders for appointment as guardian ad litem for Claimants, Petitioner did not mark the box for guardian ad litem on the Petitions. (See Petitions, ¶ 1.) Petitioner also did not mark the same box on the proposed orders. (See Proposed Orders, ¶ 2.) The Court further notes that Petitioner did not provide the judicial officers name on paragraph 1, subdivision (c), of the proposed orders. (See Proposed Orders, ¶ 1, subd. (c).) Based on the foregoing, the Court DENIES the Claimants petitions for approval of compromise of claim or action or disposition of proceeds of judgment for minor or person with a disability without prejudice. CONCLUSION The Court DENIES Claimant Eden Lomas petition for approval of compromise of claim or action or disposition of proceeds of judgment for minor or person with a disability without prejudice. The Court DENIES Claimant Emerie Lomas petition for approval of compromise of claim or action or disposition of proceeds of judgment for minor or person with a disability without prejudice. The Court DENIES Claimant Emma Fuentes petition for approval of compromise of claim or action or disposition of proceeds of judgment for minor or person with a disability without prejudice. Petitioner is ordered to provide notice of the Courts ruling and file proof of service of same within five days of the Courts order. [1] Defendant Pedroza appears to be named only and not served.

Ruling

BONNIE SUGERMAN VS LOS ANGELES UNIFIED SCHOOL DISTRICT

Aug 27, 2024 |Echo Dawn Ryan |23STCV02152

Case Number: 23STCV02152 Hearing Date: August 27, 2024 Dept: 26 08/27/24 Dept. 26 Hon. Rolf Treu, Judge presiding SUGERMAN v. LOS ANGELES UNIFIED SCHOOL DISTRICT (23STCV02152) Counsel for Plaintiff/opposing party: Irving Meyer (Law Offices of Irving Meyer) Counsel for Defendant/moving party: Nazli Alimi (LAUSD Office of General Counsel); Thomas Hurrell, Lisa An (Hurrell Cantrall LLP) (1) MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION (filed on 04/24/2024) (2) MOTION TO COMPEL DEPOSITIONS AND PRODUCTION OF DOCUMENTS (SET fOUR) (filed on 01/16/2024) TENTATIVE RULING Defendants motion for summary judgment is GRANTED. Plaintiffs Motion to Compel Depositions and Production of Documents, Set Four, is MOOT. I. BACKGROUND On January 31, 2024, Plaintiff Bonnie Sugerman (Plaintiff) brought this is FEHA discrimination and harassment action against defendant Los Angeles Unified School District (Defendant). Plaintiff alleges she was employed with Defendant for approximately 21 years and had to retire effective January 3, 2023, when she was approximately 59 years of age, because of Defendants alleged disability and/or age discrimination; failure to accommodate Plaintiffs disabilities; failure to enter into a reasonable interactive process with Plaintiff based on her disabilities; retaliation because Plaintiff had complained about prior FEHA violations by Defendant, as well as Plaintiff seeking to be accommodated for her disabilities. Specifically, Plaintiff alleges she was on medical leave for open heart surgery, and Defendant refused to allow her to work in a virtual position even though there were virtual positions available. The complaint alleges causes of action for (1) discrimination and/or age discrimination (FEHA); (2) retaliation (FEHA); (3) failure to accommodate (FEHA); (4) failure to enter into interactive process (FEHA); and (5) disability harassment (FEHA). On April 24, 2024, Defendant filed a motion for summary judgment or alternatively, summary adjudication, arguing: · Defendant moves for summary judgment or adjudication on all Plaintiffs causes of action · ISSUE ONE: Plaintiff's Cause of Action for Disability and/or Age Discrimination under FEHA must be adjudicated against Plaintiff because Plaintiff cannot make a prima facie showing of disability and/or age discrimination, Defendant had legitimate business reasons for not providing Plaintiff with permanent remote work, and Plaintiff has no evidence of pretext. · ISSUE TWO: Plaintiff's Second Cause of Action for Retaliation under FEHA must be adjudicated against Plaintiff because Plaintiff cannot make a prima facie showing of retaliation, Defendant had legitimate business reasons for not providing Plaintiff with permanent remote work, and Plaintiff has no evidence of pretext · ISSUE THREE: Plaintiff's Third Cause of Action for Failure to Provide an Accommodation under FEHA must be adjudicated against Plaintiff based on each of the following grounds: 1) Plaintiff failed to engage in the interactive process in good faith and was the cause of the breakdown of the interactive process as she voluntarily retired despite being on an approved leave of absence and being offered a reasonable accommodation; 2) LAUSD did provide Plaintiff with a reasonable accommodation and Plaintiff's truly desired accommodation of indefinite remote work was unreasonable; 3) Plaintiff could not perform the essential functions of a Senior Office Technician; and 4) even if Plaintiff was entitled to an accommodation of remote work, LAUSD would suffer undue hardship if it were to provide Plaintiff with her requested accommodation. · ISSUE FOUR: Plaintiff's Fourth Cause of Action for Failure to Enter into an Interactive Process under FEHA must be adjudicated against Plaintiff because 1) LAUSD engaged in a good faith interactive process with Plaintiff; 2) Plaintiff cannot identify a reasonable accommodation that was available at the time LAUSD engaged in the interactive process with her; and 3) Plaintiff failed to engage in the interactive process in good faith and was the cause of the breakdown of the interactive process as she voluntarily retired despite being on an approved leave of absence and being offered a reasonable accommodation. · ISSUE FIVE: Plaintiff's Fifth Cause of Action for Disability Harassment under FEHA must be adjudicated against Plaintiff because Plaintiff cannot make a prima facie showing of disability harassment. In opposition, Plaintiff argues that there are genuine issues of material fact regarding Plaintiffs causes of action. Defendant filed a reply maintaining there is no triable issue as to any material fact and Defendant is entitled to judgment as a matter of law against all of Plaintiffs causes of action. On January 16, 2024, Plaintiff filed a Motion to Compel Depositions and Production of Documents, Set Four. Plaintiff moves to compel the depositions of six of Defendants employees and production in response to Plaintiffs 15 requests for documents. On June 25, 2024, Defendant filed an opposition arguing Plaintiff failed to show good cause to compel the production of Plaintiffs overly broad and unduly oppressive document requests and the depositions of Defendants third party employees who have no nexus to Plaintiffs claims. Defendant filed a reply maintaining that Defendant is entitled to the discovery. II. ANALYSIS A. Legal Standard for Motion for Summary Judgment A party may move for summary judgment if it is contended that the action has no merit or that there is no defense to the action or proceeding. (Cal. Civ. Proc. Code § 437c(a).) Summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. In determining if the papers show that there is no triable issue as to any material fact, the court shall consider all of the evidence set forth in the papers, except the evidence to which objections have been made and sustained by the court, and all inferences reasonably deducible from the evidence, except summary judgment shall not be granted by the court based on inferences reasonably deducible from the evidence if contradicted by other inferences or evidence that raise a triable issue as to any material fact. (Id., § 437c, subd. (c).) A defendant moving for summary judgment must show that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action. (Code Civ. Proc., § 437c, subd. (p)(2); see also, Code Civ. Proc., § 437c, subd. (o).) The defendant may, but need not, present evidence that conclusively negates an element of the plaintiff's cause of action. The defendant may also present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidenceas through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing. But& the defendant must indeed present evidence." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 855 [italics in original].) In other words, all that the defendant need do is to show that the plaintiff cannot establish at least one element of the cause of action--for example, that the plaintiff cannot prove element¿X. (Id., at 853.) The court in Aguilar distilled summary judgment to a single proposition: If a party moving for summary judgment in any action . . . would prevail at trial without submission of any issue of material fact to a trier of fact for determination, then he should prevail on summary judgment. In such a case . . . the court should grant the motion and avoid a . . . trial rendered useless by nonsuit or directed verdict or similar device. (Id. at 855.) As noted in Aguilar, the party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact. (Aguilar, supra, 25 Cal.4th at 850.) Thus, courts usually follow a three-step analysis: First, we identify the issues framed by the pleadings . . . . [¶] Secondly, we determine whether the moving partys showing has established facts which negate the opponents claim and justify a judgment in movants favor. . . . [¶] When a . . . motion prima facie justifies a judgment, the third and final step is to determine whether the opposition demonstrates the existence of a triable, material factual issue. (Ojavan Investors, Inc. v. Cal. Coastal Comm. (1997) 54 Cal.App.4th 373, 385 [citation and footnote omitted].) Opposing parties must present substantial evidence in order to avoid summary judgment. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 163.) In some instances&, evidence may be so lacking in probative value that it fails to raise any triable issue. (Whitmire v. Ingersoll-Rand Co. (2010) 184 Cal.App.4th 1078, 1083-1084.) A complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial. (Hunter v. Pacific Mechanical Corp (1995) 37 Cal.App.4th 1282, 1286, disapproved on other grounds by Aguilar, supra, at 865; accord Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 780 [If the plaintiff is unable to meet her burden of proof regarding an essential element of her case, all other facts are rendered immaterial.].) Courts construe the moving party's affidavits strictly, construe the opponent's affidavits liberally, and resolve doubts about the¿propriety¿of granting the motion in favor of the party opposing it. (Unilab Corp.v. Angeles-IPA (2016) 244 Cal.App.4th 622, 636; internal citation omitted.) The court focuses on issue finding; it does not resolve issues of fact. The court seeks to find contradictions in the evidence, or inferences reasonably deducible from the evidence, which raise a triable issue of material fact. (Johnson v. United Cerebral Palsy, etc. (2009) 173 Cal.App.4th 740, 754; internal citation omitted.) "[S]ummary judgment cannot be granted when the facts are susceptible [of] more than one reasonable inference... (Rosas v. BASF Corp.¿(2015) 236 Cal.App.4th 1378, 1392.) B. Evidentiary Objections The Court rules on Defendants objections Nos. 1-17 to Plaintiffs evidence in support of her opposition as follows: Marshall Declaration (Nos. 1-6) · Nos. 1-6: Sustained (Improper legal conclusion, Improper bases for expert opinion, Evid. Code § 1520). Sugerman Declaration (Nos. 7-17) · Nos. 1-12, 14-17: Overruled. · No. 13: Sustained (Hearsay). C. Summary of Undisputed Material Facts Plaintiff was a Senior Office Technician ("Sr. OT") for Defendant LAUSD from 2002 until her retirement on January 3, 2023. (UMF, 1.) Between May of 2020 and January 21, 2021, Plaintiff was on an approved leave of absence to recover from her open heart surgery. (UMF, 6.) For the Spring of 2021, Principal Ford of Mark Twain Middle School provided Plaintiff with the following reasonable accommodations: 1) not lift anything more than 10 pounds; 2) work 4 hours on-site and 4 hours remotely; 3) have at least 6 feet between her and co-workers; and 4) not be required to stand for more than 10 minutes at any time. (UMF, 7.) Plaintiff was content with the reasonable accommodations. (UMF, 8.) In August of 2021, Dr. Ford advised Plaintiff that she could no longer safely accommodate her because Mark Twain MS needed a full time onsite Sr. OT to meet the demands of the school as students returned to campus. (UMF, 10.) On November 4, 2021, LAUSD approved Plaintiffs reasonable accommodation request for remote work with LAUSDs City of Angels for the remainder of the 2021 2022 school year. (UMF, 11.) Plaintiff worked remotely for LAUSD's City of Angels for the remainder of the 2021-2022 school year. (UMF, 12.) On March 23, 2022, LAUSD advised all Sr. OTs assigned to the City of Angeles Virtual Academy that the City of Angels Virtual Academy was closing after the 2021-2022 school year. (UMF, 13.) LAUSD advised Plaintiff that it was opening six new Thematic Virtual Academy schools (hereinafter, "Virtual Academies") for students who opt to continue with an online independent study program. (UMF, 15.) LAUSD advised that there would be remote and in-person positions for Sr. OTs based on student enrollment and LAUSDs needs and pending an approval of a request to continue the reasonable accommodation of remote work. (UMF, 16.) LAUSD instructed the Sr. OTs, including Plaintiff, to provide a statement of the requested accommodation along with supporting documentation from a medical provider. (UMF, 17.) For the 2022-2023 school year, only 18 Sr. OT positions were funded with the Virtual Academies. (UMF, 18.) From the 18 Sr. OT positions funded, six (6) Sr. OT positions were available for remote work assignment as a reasonable accommodation based on either a medical/disability need or sincerely held religious belief. (UMF, 19.) The six available Sr. OT remote positions for the Virtual Academies were filled on a first come first served basis to those employees who submitted documentation that supported their request. (UMF, 20.) On or around April 21, 2022, Plaintiff emailed Disability Management asking to work from home for the 2022-23 school year with doctors' notes from Dr. David J. Wallenstein and Dr. Ellen Rochman Kovacs, Ph.D. (UMF, 21.) Dr. Wallenstein stated, Plaintiff "has multiple medical conditions placing her at high risk for severe complications, including death, from COVID 19 infection. As such, please give consideration to allowing Ms. Sugerman to continue work remotely from home. (UMF, 22.) On June 15, 2022, LAUSD advised Plaintiff that effective July 20, 2022, she would be assigned to Paul Revere Charter Middle School. (UMF, 26.) On June 30, 2022, Mr. Raul Noe, Return to Work Specialist, advised Plaintiff that there were no vacant remote work positions for classified employees for the 2022-2023 school year. (UMF, 27.) Mr. Noe asked Plaintiff to reach out to the principal of Paul Revere to engage in a good faith interactive process to see if Paul Revere could accommodate her. (UMF, 28.) On July 11, 2022, Plaintiff emailed Thomas Iannucci, Principal of Paul Revere, requesting an accommodation to work remotely. (UMF, 29.) On July 13, 2022, Mr. Juan Gonzalez, Workers' Compensation & Reasonable Accommodation Manager, clarified to her that her accommodation request was not denied. Rather, if Paul Revere could not accommodate her, to submit Attachment A (Record of Interactive Process), Attachment B, (Reasonable Accommodation Application), and medical documentation with work limitations and the expected duration of her limitations. (UMF, 30.) On July 20, 2022, Principal Iannucci met with Plaintiff and told her that Plaintiff's position of a Ms. Sugerman what the material fact pertinent to the Sr. OT requires her to be on situation was without asking disposition of this Motion. California Rules of Court Rule campus to handle the receipt, filing and sending of student her for any input, suggestions, and/or comments. The 3.1350(f) does not permit disputes with "inferences" records and that these meeting last "5 minutes." An from facts in a Separate essential functions could not be done virtually. (UMF, 33.) On July 21, 2022, Plaintiff submitted Attachments A & B, and medical notes from Dr. Kovacs, Dr. Avila-Garibay and Dr. Wallenstein's same note as before. (UMF, 36.) On July 27, 2022, Mr. Noe advised Plaintiff that he and Mr. Juan Gonzalez reviewed the medical notes of Dr. Kovacs, Dr. Avila Garibay and Dr. Wallenstein and advised Plaintiff needed to provide additional medical documentation that addresses what you are unable to do at work, which is usually written as work restrictions and or work limitations that supports your requested accommodations. (UMF, 38.) On July 29, 2022, Plaintiff provided a doctor's note from Dr. Chen. (UMF, 39.) Dr. Chen's note, dated July 29, 2022, stated Plaintiff "has multiple medical conditions (including cardiac abnormalities requiring daily medication use, a history of open heart surgery, diabetes) placing her at high risk of severe complications including death from COVID19 infection. [Plaintiff] also has a history of bilateral knee osteoarthritis and states this significantly impacts her mobility and ability to stoop and lift at work." (UMF, 40.) Dr. Chen asked LAUSD to "please give consideration to allowing Ms. Sugerman to continue work remotely from home." (UMF, 41.) On September 22, 2022, Mr. Noe emailed Plaintiff memorializing their conversation on September 21, 2022, and after review of Dr. Chen's note, he advised Plaintiff that "the medical documentation should describe the nature, severity, and duration of the impairment, the activity or activities that the impairment limits, the extent to which the impairment limits employees ability to perform the activity or activities, and should substantiate why the request[] is reasonable. (UMF, 43.) On the same day, Mr. Noe advised her that LAUSD would not take any further action until she provided sufficient medical documentation with work limitations. (UMF, 44.) On September 29, 2022, Mr. Noe offered the following accommodation at Paul Revere: 1) work from a cubicle in an "almost isolated" office and be provided with PPEs and hand sanitizer and 2) she could stand up to place files in cabinets and sit in a chair to place files in lower drawers. (UMF, 45.) Mr. Noe also again asked Plaintiff to provide him with medical notes which supported her request for full time remote work. (UMF, 46.) On October 6, 2022, Plaintiff requested a leave of absence from July 20, 2022 to January 21, 2023. (UMF, 49.) LAUSD approved Plaintiffs leave of absence request. (UMF, 50.) On October 12, 2022, Plaintiff submitted her Classified Resignation/Retirement Form, indicating she was retiring effective January 3, 2023. (UMF, 51.) D. Third Cause of Action: Failure to Accommodate Defendant moves for summary adjudication as to the third cause of action for failure to accommodate. The essential elements of a failure to accommodate claim are: 1) the plaintiff has a disability covered by the FEHA; 2) the plaintiff is a qualified individual (i.e., he or she can perform the essential functions of the position); and 3) the employer failed to reasonably accommodate the plaintiffs disability. (Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 256.)¿ [T]he employer cannot prevail on summary judgment on a claim of failure to reasonably accommodate unless it establishes through undisputed facts that 1) reasonable accommodation was offered and refused, 2) there simply was no vacant position within the employers organization for which the disabled employee was qualified and which disabled employee was capable of performing with or without accommodation, or (3) the employer did everything in its power to find a reasonable accommodation, but the informal interactive process broke down because the employee failed to engage in discussions in good faith. [Citation.] (King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 442.)¿ a. Defendants Initial Burden Defendant argues that Plaintiffs failure to accommodate cause of action fails on each of the following grounds: 1) Plaintiff failed to engage in the interactive process in good faith and was the cause of the breakdown of the interactive process as she voluntarily retired; 2) Defendant did provide Plaintiff with a reasonable accommodation and Plaintiff's desired accommodation of indefinite remote work was unreasonable and would cause undue hardship to Defendant; and 3) Plaintiff could not perform the essential functions of a Senior Office Technician. i. Plaintiff Failed to Engage in the Interactive Process First, Defendant asserts that Plaintiff was the cause of the breakdown of the interactive process and she did not participate in good faith. In support, Defendant submits the declaration of Raul Noe, Defendants Return to Work Specialist. Mr. Noe states that he advised Plaintiff her medical notes did not describe the nature and severity of the impairment, the specific limitations, or the expected duration of her limitations. (Noe Decl. ¶¶ 12-14.) Mr. Noe states he told Plaintiff multiple times how she needed to cure the deficiencies. (Ibid.) However, Plaintiff never cured the deficiencies and on October 12, 2022 Plaintiff submitted her Classified Resignation/Retirement Form, indicating she was retiring. (Ibid., Defs Ex. 34.) Thus, Defendant asserts Plaintiff did not participate in the interactive process in good faith because she failed to present Defendant with medical notes that clarified and specified her medical restrictions. It is an employee's responsibility to understand his or her own physical or mental condition well enough to present the employer at the earliest opportunity with a concise list of restrictions which must be met to accommodate the employee. (Jensen v. Wells Fargo Bank (2000) 85 Cal. App. 4th 245, 266.) In addition, Defendant contends that Plaintiff's lack of good faith in the interactive process is further evidenced by her intention to retire in early 2023. As evidence, Defendant submits an email Plaintiff sent her co-worker Laveme Usher, on May 24, 2022, stating, "I really hope we all get to continue working from home because ... I am not going to go back into a school, ever, to work again. I am hoping that I will get to work at one of the new 6 virtual academies from home until I can retire in November. How scary these shootings (anywhere) are." (Defs Ex. 12; Pltfs Depo 171:5-25.) The Court finds Defendant has satisfied its initial burden on this ground. ii. Defendant provided Plaintiff with a Reasonable Accommodation Next, Defendant argues that Plaintiff's accommodation cause of action fails because Defendant provided Plaintiff with a reasonable accommodation and Plaintiff's only desired accommodation was unreasonable. FEHA does not obligate an employer to choose the best accommodation or the specific accommodation a disabled employee or applicant seeks. [Citation.] It requires only that the accommodation chosen be reasonable. (Raine v. City of Burbank (2006) 135 Cal.App.4th 1215, 1222 [citing Gov. Code § 12940, subds. (a) & (m)].) Employers are not required to provide an accommodation that is demonstrated to produce undue hardship, as defined under Gov. Code § 12926, subd. (u). (Gov. Code § 12940, subd. (m)(1).) The employer or other covered entity shall consider the preference of the applicant or employee to be accommodated, but has the right to select and implement an accommodation that is effective for both the employee and the employer or other covered entity. (2 CCR § 11068, subd. (e).) Similarly, during the interactive process, The employer or other covered entity shall consider the preference of the applicant or employee to be accommodated, but has the right to implement an accommodation that is effective in allowing the applicant or employee to perform the essential functions of the job. (2 CCR § 11069, subd. (c)(8).) While a "reasonable accommodation" is undefined by statute, courts have defined it to mean "a modification or adjustment to the workplace that enables the employee to perform the essential functions" of her job. (Nadaf-Rahrov v. Neiman Marcus Group, Inc. (2008) 166 Cal.App.4th 952, 986.) Defendant asserts that it provided Plaintiff a reasonable accommodation. On July 29, 2022, Plaintiff had submitted a doctors note stating that she has multiple medical conditions (including cardiac abnormalities requiring daily medication use, a history of open heart surgery, diabetes) placing her at high risk for severe complications, including death, from COVID-19 infection. [Plaintiff] also has a history of bilateral knee osteoarthritis and states this significantly impacts her mobility and ability to stoop and lift at work. (Defs Ex. 27.) Therefore, on September 29, 2022, Mr. Noe offered Plaintiff the following accommodation: 1) work from a cubicle in an "almost isolated" office and be provided with PPEs and hand sanitizer and 2) she could stand up to place files in cabinets and sit in a chair to place files in lower drawers. (Ex. 31; Noe Decl., ¶¶ 14-15.) Further, Defendant asserts that Plaintiff was also reasonably accommodated on a temporary basis when Defendant approved her leave of absence from July 20, 2022 to January 21, 2023. [A] finite leave can be a reasonable accommodation under FEHA, provided it is likely that at the end of the leave, the employee would be able to perform his or her duties. (Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 226.) Defendant also argues that Plaintiffs desired accommodation of remote work for an indefinite period of time is unreasonable and would cause undue hardship on Defendant. In support, Defendant submits the declaration of Latsha Buck, the Executive Director with LAUSD for its Office of Virtual Academy and Educational Options Schools. Ms. Buck states that Defendant never had a permanent remote position. (Buck Decl. ¶ 10.) Defendant asserts that they were under no duty to make Plaintiffs temporary accommodation of remote work permanent as it would require it to create a position which has never existed. (Raine v. City of Burbank (2006) 135 Cal.App.4th 1215, 1227.) The Court finds Defendant has satisfied its initial burden on these grounds. iii. Plaintiff could not Perform the Essential Functions of the Position Defendant also argues Plaintiff could not perform the essential functions of a Senior Office Technician. Defendant provides the following evidence. Thomas Iannucci, the Principal for Paul Revere Charter Middle School, supervises all the employees assigned to his school and states that on-site presence is an essential function of a Senior Office Technician. (Iannucci Decl. ¶ 4.) According to Mr. Iannucci, Seventy-five percent of the essential functions of a Sr. OT involve handling physical files at school (including confidential cumulative records for students), sending and/or receiving student records from other schools; entering data and generating reports on the computer, and responding to requests for information from employees or the general public. (Ibid.) Since Plaintiff requested to work remotely and Defendant provided evidence that being on site is an essential function of her position, Defendant has satisfied its initial burden on this ground. In sum, the Court finds that based on the evidence, Defendant has carried its initial burden of establishing that Plaintiff cannot prevail as a matter of law on the third cause of action for failure to accommodate. Accordingly, the burden shifts to Plaintiff to establish a triable issue of material fact. b. Plaintiffs Burden In opposition, Plaintiff argues that the offer of a cubicle was not a reasonable accommodation. Plaintiff submits her declaration as evidence. Plaintiff states: Mr. Noe never presented any evidence/proof to me from a medical provider, or any other qualified person that placing me in a "cubicle" would not put me at "at a high risk for severe complications, including death, from Covid-19 infection& In addition: For one, a cubicle is not as private as people think. It is in the shape of an office, however, there are no doors, a ceiling or is not a fully enclosed, private office. Air can easily travel through a cubicle. And... anyone can walk right into a cubicle. Also, even if people walked by my "cubicle" if someone sneezed or coughed at or near my cubicle... then someone's germs arc floating around and I could still get sick because of my health situations. The fact that a cubicle is more open and where someone could even walk into my space very easily was a drawback to me. I just could not chance being in a cubicle because there really was no privacy or room for safety where my health is/was concerned." (Sugerman Decl. ¶ 9.) Thus, Plaintiff contends that the accommodation offered by Defendant was not agreeable to her. However, Plaintiff does not establish a triable issue of material fact that the offered accommodation was not a reasonable accommodation. Plaintiff asserts that Mr. Noe did not present evidence that the cubicle would not put her at risk. Yet, in Defendants reply, Defendant presents evidence that Plaintiff did not respond to Mr. Noes offer to seek further information or clarify her concerns of the proposed accommodation. (Noe Decl. ¶ 16.) Plaintiff does not provide evidence that her medical providers advised her that the proposed accommodation would not sufficiently accommodate her. Instead, Plaintiff filed her leave of absence request shortly after on October 6, 2022 and then her retirement form on October 12, 2022. Thus, Plaintiff does not establish a triable issue of material fact that the offered accommodation was not a reasonable accommodation. Further, Plaintiff fails to address or dispute Defendants assertion that Defendants approval of her leave of absence request was also a reasonable accommodation. In Plaintiffs opposition she also argues that there were other available Senior Office Technician positions that Defendant did not tell Plaintiff about, but Plaintiff could have performed the essential functions those positions remotely. (Sugerman Decl., ¶ 5.) However, "essential functions" is not determined based upon the employee's view point, but rather from that of the employer's judgment. (Cal. Gov't Code, § 12926, subd. (f)(2)(A).) As Defendant stated, being on site is an essential function of her position. (Iannucci Decl. ¶ 4.) The Court does not find Plaintiff creates a genuine dispute of material fact as to whether she could perform the essential functions of a Senior Office Technician. Based on the foregoing, Plaintiff failed to prove a triable issue of material fact. Therefore, the Court GRANTS summary adjudication as to the third cause of action. E. Fourth Cause of Action: Failure to enter into Interactive Process Defendant moves for summary adjudication as to the fourth cause of action for failure to enter into interactive process. Defendant asserts that Defendant engaged in a good faith interactive process with Plaintiff to identify an effective reasonable accommodation. FEHA requires employers to timely engage in good faith interactive process with a disabled employee to determine effective reasonable accommodations in response to a request for reasonable accommodation. (Cal. Govt. Code, § 12940, subd. (n).) "To prevail on a claim under section 12940, subdivision (n) for failure to engage in the interactive process, an employee must identify a reasonable accommodation that would have been available at the time the interactive process should have occurred." (Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1018- 1019.) "[I]f the [interactive] process fails, responsibility for the failure rests with the party who failed to participate in good faith. While a claim of failure to accommodate is independent of a cause of action for failure to engage in an interactive dialogue, each necessarily implicates the other." (Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34, 54 [internal citations omitted].) "FEHA requires an informal process with the employee to identify reasonable accommodations, not necessarily ritualized discussions." (Nealy, supra, 234 Cal.App.4th at p. 379.) Here, Plaintiffs Failure to Enter Into the Interactive Process cause of action is premised on the same conduct as her Failure to Accommodate cause of action. As discussed above, the Court found Plaintiff did not carry her burden of establishing a triable issue of material fact as to her Failure to Accommodate cause of action. Specifically, Defendant submitted evidence that Plaintiff did not participate in the interactive process in good faith. Mr. Noe requested Plaintiff to provide additional information in her medical notes. (Noe Decl. ¶¶ 12-14.) However, Plaintiff did not provide Mr. Noe with the requested information and instead requested a leave of absence and retired. (Ibid.) Defendant also submitted evidence that Plaintiff had intended to retire by early 2023 as evidenced by the email she sent her co-worker stating that she hoped she could work remotely until she retired in November. (Defs Ex. 12; Pltfs Depo 171:5-25.) Defendant carried its initial burden. Plaintiff did not address these arguments in her opposition. Thus, Plaintiff failed to carry her burden and establish a triable issue of material fact. Based on the foregoing, the Court GRANTS summary adjudication as to the fourth cause of action. F. First Cause of Action: Disability and/or Age Discrimination Defendant moves for summary adjudication as to the first cause of action on the ground that Plaintiff is unable to establish a prima facie claim for discrimination under the FEHA. In any case, Defendant asserts that they had a legitimate business reason for the actions they took against Plaintiff. A plaintiff alleging discrimination must allege that (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 circ*mstance suggests discriminatory motive. (Guz v. Bechtel National Inc. (2000) 24 Cal.4th 317, 355.) To satisfy its initial summary judgment burden, moving party employer must either undermine an element of plaintiff's prima facie case by affirmatively negating it or showing plaintiff cannot prove it, or provide a legitimate nondiscriminatory reason for the adverse employment action. (McGrory v. Applied Signal Tech., Inc.¿(2013) 212 Cal.App.4th 1510, 1523.) In the context of disability discrimination claims, the Courts of Appeal boil these prima facie elements down from four to three: that the plaintiff (1) suffered from a disability or was regarded as suffering from a disability, (2) could perform the essential duties of a job with or without reasonable accommodations, and (3) was subjected to an adverse employment action because of the disability or perceived disability. (Glynn v. Superior Court (2019) 42 Cal.App.5th 47, 53 fn.1.)¿¿ A physical or medical disability constitutes a disability under FEHA when that physical or mental disability requires a limitation upon a major life activity. (Gov. Code. § 129261.1(c).) The limitation need not be a substantial one as required under the Federal Americans with Disabilities act of 1990. (Ibid.) As an initial matter, Defendant argues that Plaintiff's discrimination action on the basis of age and/or disability is barred as a matter of law. Under FEHA, an employee must exhaust the administrative remedy provided by the statute by timely filing a complaint with DFEH and must obtain from the Department a right to sue in order to proceed with a civil action based on the FEHA violation. (Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 63.) Here, Defendant asserts that Plaintiffs DFEH charge only claimed FEHA violations for failure to provide a reasonable accommodation, engage in a good faith interactive process and retaliation. In support, Defendant cites to Plaintiffs DFEH complaint attached as Exhibit A to Plaintiffs Complaint. However, Plaintiffs complaint with DFEH states Complainant was discriminated against because of complainants medical condition (cancer or genetic characteristic), age (40 and over), disability (physical, intellectual/developmental, mental health/psychiatric) and as a result of the discrimination was forced to quit, denied work opportunities or assignments, denied accommodation for a disability. (Compl., Ex. A.) Thus, the Court does not find Defendants argument persuasive and Defendant does not satisfy its initial burden on this ground. a. Plaintiff Cannot Establish a Prima Facie Case of Discrimination Defendant argues that Plaintiff is unable to establish a prima facie claim for discrimination under the FEHA. First, Defendant asserts Plaintiff did not suffer an adverse employment action. Adverse employment action must be substantial and detrimental, and can include refusal to promote, transfer of job duties, and reducing employees authority if the terms and conditions of employment are materially affected. (Yanowitz v. LOreal USA, Inc. (2005) 36 Cal.4th 1028, 1060-1061.) Defendant contends that while Plaintiff alleges Defendant forced her to retire, Defendant presented evidence that Plaintiff had a pre-existing intention to retire in January of 2023 that predated any alleged wrongdoing by Defendant. (Defs Ex. 12; Pltfs Depo 171:5-25.) Moreover, Defendant asserts that a failure to accommodate an employees disability does not qualify as an adverse action underlying a discrimination or retaliation claim. (Doe v. Department of Corrections & Rehabilitation (2019) 43 Cal.App.5th 721, 73536.) As such, Defendants have met their burden of showing that no adverse employment action was taken. Next, Defendant argues Plaintiff cannot establish a discriminatory motive. Defendant asserts Defendant had a legitimate business reason for not providing Plaintiff with remote work because the duties and responsibilities of a Sr. OT required in-person attendance and there were no other remote positions available. (Iannucci Decl. ¶ 4.) Based on the foregoing, the Court finds Defendant has carried its initial burden. b. Plaintiffs burden In Plaintiffs opposition, she fails to establish a triable issue of material fact. Plaintiff relies on the same argument in that Plaintiff could have performed the essential functions of her position remotely and that Defendants denial was discriminatory. However, as discussed above, Plaintiff has not created a triable issue of material fact that she could have performed the essential functions of her position remotely. The Court does not find Plaintiff has carried her burden. Accordingly, the Court GRANTS summary adjudication as to the first cause of action. G. Second Cause of Action: Retaliation Defendant moves for summary adjudication as to the second cause of action for retaliation. To show retaliation under the FEHA, a plaintiff must show the following elements: (1) plaintiff engaged in protected activity, (2) adverse employment action, (3) retaliatory intent, and (4) a causal link between the protected activity and the adverse employment action. (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.) Plaintiffs retaliation claim is premised on the same conduct as the disability discrimination claim. As discussed above, Plaintiff cannot establish that Defendant subjected her to an adverse employment action. Therefore, the Court incorporates by reference its prior discussion of these same arguments with respect to the disability discrimination claim and, for the same reasons, finds summary adjudication of the second claim for retaliation appropriate. As such, summary adjudication as to the second cause of action in the Complaint for retaliation is GRANTED. H. Fifth Cause of Action: Disability Harassment Defendant moves for summary judgment as to the fifth cause of action on the ground that Plaintiff is unable to establish a prima facie claim for harassment based on disability. To establish a prima facie case for¿harassment, a plaintiff must show that (1) he was a member of a protected class; (2) he was subjected to unwelcome¿harassment; (3) the¿harassment¿was based on¿a protected characteristic; and (4) the¿harassment¿unreasonably interfered with his work performance by creating an intimidating, hostile, or offensive work environment. (Thompson v. City of Monrovia¿(2010) 186 Cal.App.4th 860, 876.)¿¿The law prohibiting harassment is violated when the workplace is permeated with discriminatory intimidation, ridicule and insult that is sufficiently severe or pervasive to alter the¿conditions of the victims employment and create an abusive working environment. (Nazir v. United Airlines, Inc.¿(2009) 178 Cal.App.4th 243, 263 [internal quotations¿and brackets¿omitted].) A single incident of harassment may be enough to constitute a hostile work environment if it unreasonably interfered with the plaintiffs work performance or created an intimidating, hostile, or offensive working environment.¿ (Gov. Code, § 12923, subd. (b).)¿ The court shall use the totality of the circ*mstances to determine whether there exists a hostile work environment.¿ (Gov. Code, § 12923, subd. (c).)¿ Where the evidence establishes that Plaintiff did not endure conduct "so severe and pervasive as to alter the conditions of his employment," summary judgement is appropriate. (McCoy v. Pacific Maritime Association (2013) 216 Cal. App. 4th 283, 294.) The Complaint alleges: As a proximate result of Defendant's harassment, Plaintiff suffered adverse employment actions as a result of harassment in that Sugerman was not accommodated, not given the opportunity to have a reasonable interactive process, and was forced to resign from a job she had with the District for approximately twenty-one (21) years. (Compl. ¶ 49.) Defendant argues that there is no evidence that anyone from LAUSD subjected Plaintiff to harassment. Defendant points to Plaintiffs deposition in which she states no one at LAUSD encouraged or demanded that she retire. (Ex. 2, Sugerman Depo. 103:16-18, 104:13-14, 17-22.) While Plaintiff alleges in the Complaint that she was harassed in that she was not accommodated or provided a reasonable interactive process, the Court does not find that this constitutes harassing conduct. Moreover, as discussed above, the Court finds that Defendant established that Plaintiff was provided a reasonable accommodation and interactive process. The Court finds that Defendant has carried its initial burden as to this cause of action. Plaintiff does not appear to address this argument in her opposition or identify the specific harassing conduct by Defendant. Thus, Plaintiff fails to create a triable issue of material fact regarding her fifth cause of action. In sum, the Court finds that Defendant has met its burden to show Defendant did not engage in harassing conduct. Plaintiff failed to meet her burden of raising triable issues of material fact. As such, summary adjudication for the fifth cause of action in the Complaint for disability harassment is GRANTED. I. Plaintiffs Motion to Compel Depositions and Production of Documents, Set Four As discussed above, the Court grants Defendants Motion for Summary Judgment. In light of the Courts ruling, Plaintiffs Motion to Compel is Moot. III. DISPOSITION Defendants motion for summary judgment is GRANTED. Plaintiffs Motion to Compel Depositions and Production of Documents, Set Four, is MOOT.

Ruling

C D V. COUNTY OF BUTTE ET AL

Aug 28, 2024 |22CV01639

22CV01639 C D V. COUNTY OF BUTTE ET ALEVENT: Motion for Leave to File Third Amended ComplaintThe Court finds that the proposed Third Amended Complaint would not prejudice theDefendant, and Plaintiff did not unreasonably delay in seeking leave to amend. Further,Plaintiff has met her burden of showing that the defects in the Second AmendedComplaint can be cured by the proposed amendment. The Motion is granted, and theCourt will sign the form of order submitted by counsel. In light of the Court’s ruling, theCourt will hear from counsel as to the pending Motion for Summary Judgment andresetting of trial dates. Counsel are to appear. However, this is not an invitation topresent oral argument in regard to Plaintiff’s Motion for Leave to File Third AmendedComplaint. If counsel wishes to argue the tentative ruling, they must comply with ButteCounty Local Rule 2.9 and California Rules of Court Rule 3.1308(a)(1).2|Page

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