Sawaked v. Atara Biotherapeutics CA2/6

Filed 6/6/22 Sawaked v. Atara Biotherapeutics CA2/6
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

MARWAN SAWAKED, 2d Civil No. B306294
(Super. Ct. No. 56-2018-
Plaintiff and Appellant, 00519790-CU-OE-VTA)
(Ventura County)
v.

ATARA BIOTHERAPEUTICS,
INC.,

Defendant and Respondent.

Marwan Sawaked appeals from the order granting
summary judgment against him in favor of his former employer,
Atara Biotherapeutics, Inc. (Atara). He contends: (1) the trial
court improperly analyzed Atara’s undisputed material facts, (2)
there was a triable issue of fact whether he was an “exempt”
employee, (3) he was wrongfully deprived of bonuses, (4) he was
entitled to an award of penalties, and (5) Atara breached its
contract. We conclude that Atara did not establish that Sawaked
was an exempt employee or was not entitled to penalties. We
reverse summary judgment in part, and otherwise affirm.
 FACTUAL AND PROCEDURAL BACKGROUND
Atara develops immunotherapy treatments.
Sawaked began working for Atara in 2015 as “Director” of “GMP
[Good Manufacturing Practice] Quality Assurance.” His offer
letter, which he signed and accepted, stated his responsibilities
included “oversight of GMP compliance” and “managing a quality
management system.” His starting salary was $180,000 per year.
His employment was “‘at will.’”
Although Sawaked often worked more than eight
hours per day, Atara did not pay him overtime wages. He
declared that he “rarely paused for a lunch or a rest break,” and
worked through lunch three to four days a week. He was never
told that he could not take a lunch break or leave the building.
Sawaked received a $42,382.26 bonus for 2016. He
received a merit increase to $183,600 effective January 1, 2017.
He was terminated on February 8, 2018. He was not paid a
bonus for 2017 or 2018.
Sawaked sued Atara and alleged seven causes of
action: failure to (1) pay overtime wages, (2) pay full wages upon
termination, (3) provide meal periods and rest breaks, (4) provide
accurate wage statements, and (5) pay wages with a valid check;
and for (6) breach of contract, and (7) defamation.
Atara moved for summary judgment or, in the
alternative, summary adjudication. (Code Civ. Proc., § 437c,
subds. (a)(1), (f)(1) & (2).) The court granted summary
judgment.1

1Sawaked does not appeal the order regarding the
defamation cause of action.

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 DISCUSSION
A. Summary judgment
“[A] motion for 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.” (Code Civ. Proc., § 437c, subd. (c).)
It is “well established that issue finding rather than issue
determination is the pivot upon which the summary judgment
law turns.” (Walsh v. Walsh (1941) 18 Cal.2d 439, 441.) “On
appeal from the granting of a motion for summary judgment, we
examine the record de novo, liberally construing the evidence in
support of the party opposing summary judgment and resolving
doubts concerning the evidence in favor of that party.” (Miller v.
Department of Corrections (2005) 36 Cal.4th 446, 460.)2
B. Material facts
Sawaked contends that the trial court erred when it
overruled all his objections to Atara’s undisputed material facts
(UMFs), and when it found that no triable issue of fact was
shown by the UMFs he disputed or by the additional material
facts (AMFs) he offered. We confine our discussion to the specific
material facts contested in Sawaked’s briefs. We agree with
Sawaked in part.
UMF No. 6 states, “Plaintiff was, at all relevant
times, properly classified as a salaried, exempt employee.” Atara

2 In his reply brief, Sawaked contends that Atara filed an
untimely “second Motion for Summary Judgment.” Sawaked
failed to identify this as an issue under a separate heading in his
opening brief. (In re S.C. (2006) 138 Cal.App.4th 396, 408.) Nor
has he shown that he was prejudiced by the filing of the
document, which was an errata to correct clerical errors.

3
relied on a supervisor’s declaration that described Sawaked’s job
duties but did not discuss the amount of time he performed
exempt duties. Accordingly, UMF No. 6 did not support the
conclusion that he was an exempt employee.
UMF No. 7 (that Sawaked “was allowed to take lunch
and rest breaks at his discretion”), UMF Nos. 22, 23, and 24
(ineligibility for bonuses), UMF No. 30 (that Sawaked “supervised
his direct reports by reviewing their work”), and UMF Nos. 62
and 63 (reissuance of final paycheck with penalties) were
supported by the evidence. The evidence set forth in those UMFs
was not effectively refuted by Sawaked’s evidence.
The trial court’s order states: “Plaintiff’s evidentiary
objections set forth in the separate document are overruled.” The
order also states: “The court declines to rule on defendant’s
evidentiary objections because they are not material to the
disposition of the motion.”
“In granting or denying a motion for summary
judgment or summary adjudication, the court need rule only on
those objections to evidence that it deems material to its
disposition of the motion. Objections to evidence that are not
ruled on for purposes of the motion shall be preserved for
appellate review.” (Code Civ. Proc., § 437c, subd. (q).)
We review the trial court’s rulings on evidentiary
objections for abuse of discretion. (Qaadir v. Figueroa (2021) 67
Cal.App.5th 790, 803.) Where the court did not rule, we review
the objections de novo. (See Reid v. Google, Inc. (2010) 50 Cal.4th
512, 535; Pipitone v. Williams (2016) 244 Cal.App.4th 1437,
1451.) We conclude that Sawaked’s objections to UMF Nos. 7, 22,
23, 24, 30, 62, and 63 (that they were vague, contained improper

4
legal conclusions, misstated the evidence, and lacked foundation)
were properly denied.
Sawaked forfeited his challenge to UMF No. 10 (that
the offer letter provided his compensation was subject to
reductions for taxes and other required deductions), UMF No. 15
(that he was not eligible for a bonus for 2015), and UMF No. 31
(that Sawaked assigned projects to employees) because he did not
dispute them in the trial court or object to the evidence
supporting them. (Code Civ. Proc., § 437c, subds. (b)(3) & (5), (d);
Reid v. Google, Inc., supra, 50 Cal.4th at pp. 531-532.)
The court found that Sawaked’s AMF No. 83 (that he
had limited supervisory responsibilities) and AMF No. 84 (that
he spent the majority of his time “producing deliverable work
product”) were “immaterial” because “undisputed evidence shows
that the executive exemption applies.” These findings were
erroneous because the offered facts were relevant to the existence
of the executive and administrative exemptions.
C. Exempt employees
Sawaked contends the trial court erred in granting
summary judgment as to the first cause of action for overtime
compensation (Lab. Code, § 510, subd. (a)), second cause of action
for failure to pay all wages due upon termination (Lab. Code,
§§ 201, 203), third cause of action for meal periods and rest
breaks (Lab. Code, §§ 226.7, 512), and fourth cause of action for
accurate itemized wage statements (Lab. Code, § 226, subd. (a)),
based on the court’s conclusion that he was an exempt employee.
We conclude that the evidence did not establish he was exempt,
and that the order granting summary judgment was therefore
erroneous as to the first, second, and fourth causes of action.

5
 “The Industrial Welfare Commission [IWC] may
establish exemptions . . . for executive, administrative, and
professional employees, if the employee is primarily engaged in
the duties that meet the test of the exemption, customarily and
regularly exercises discretion and independent judgment in
performing those duties, and earns a monthly salary equivalent
to no less than two times the state minimum wage for full-time
employment.” (Lab. Code, § 515, subd. (a).) The exemptions for
executive and administrative employees are provided in IWC
Wage Order No. 1-2001, codified in California Code of
Regulations, title 8, section 11010, subdivision 1(A)(1) and (2).
(See Lab. Code, §§ 1182.13, 1185.)
Atara contended that “the executive and/or
administrative exemptions” applied. Executive and
administrative employees are exempt from overtime (Lab. Code,
§ 515, subd. (a); Cal. Code Regs., tit. 8, § 11010, subds. 1(A),
3(A)), meal and rest breaks (Lab. Code, § 226.7, subd. (e); Cal.
Code Regs., tit. 8, § 11010, subds. 1(A), 11, 12), and accurate
itemized wage statements (Lab. Code, § 226, subd. (j); Cal. Code
Regs., tit. 8, § 11010, subds. 1(A), 7).
Whether an employee comes within an exemption is
an affirmative defense for which the employer bears the burden
of proof. (Ramirez v. Yosemite Water Co. (1999) 20 Cal.4th 785,
794-795.) “[W]e narrowly construe exemptions against the
employer, ‘and their application is limited to those employees
plainly and unmistakably within their terms.’” (Peabody v. Time
Warner Cable, Inc. (2014) 59 Cal.4th 662, 667.) We conclude that
Atara did not establish either the executive or the administrative
exemption on summary judgment.

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D. Executive exemption
Atara contends that Sawaked came within the
executive exemption. (Cal. Code Regs., tit. 8, § 11010, subd.
1(A)(1).) Sawaked admits the existence of several of the
requirements for an executive exemption: that his “duties and
responsibilities involve[d] the management of the enterprise”
(Cal. Code Regs., tit. 8, § 11010, subd. 1(A)(1)(a)), he had the
authority to hire or fire employees or recommend such action
(subd. 1(A)(1)(c)), and he “customarily and regularly exercise[d]
discretion and independent judgment” (subd. 1(A)(1)(d)).3 He
denies that he “customarily and regularly direct[ed] the work of
two or more other employees” (subd. 1(A)(1)(b)), was “primarily
engaged in duties which meet the test of the exemption” (subd.
1(A)(1)(e)), and received a “monthly salary” (subd. 1(A)(1)(f)). The
trial court erred in concluding that the executive exemption was
established because there were triable issues of fact whether he
(1) directed the work of other employees during the relevant
period and (2) was primarily engaged in exempt duties.
1. Directing work of employees
The executive exemption requires that the employee
“customarily and regularly directs the work of two or more other
employees.” (Cal. Code Regs., tit. 8, § 11010, subd. 1(A)(1)(b).)
The declaration of a supervisor stated that Sawaked supervised
three named employees “[d]uring his employment,” but did not
give specific time periods.

3 We decline to consider the attempt in Sawaked’s reply
brief to withdraw the concessions he made in his opening brief.
(See Alameida v. State Personnel Bd. (2004) 120 Cal.App.4th 46,
55.)

7
 UMF No. 29 stated: “From late 2016 through spring
2017, Plaintiff supervised at least three employees.” This
contention was insufficient because Atara made no assertion that
he directed the work of any employees during the remaining
periods of his employment.
In his deposition, Sawaked said he did not manage
any employees until about a year after he started his
employment. The second employee he supervised began working
in early 2017, and the third employee around mid-2017.
Although this evidence was not cited in Sawaked’s response to
Atara’s separate statement, we exercise our discretion to consider
it because it was included in the exhibits submitted on summary
judgment. (See Castillo v. Glenair, Inc. (2018) 23 Cal.App.5th
262, 282-283.)
To establish an exemption, the employer is not
required to “cover in week-by-week detail all periods in which
[the employee] worked.” (Batze v. Safeway, Inc. (2017) 10
Cal.App.5th 440, 477.) The trier of fact may “make reasonable
inferences about a party’s activities during the relevant period
based on his or her activities in earlier and later periods,
particularly where there is nothing to suggest the employee’s
duties and responsibilities changed significantly.” (Id. at pp. 478-
479.) But an inference that Sawaked supervised at least two
employees for the entire period is not warranted because his
undisputed deposition testimony showed the number of
employees he supervised changed over time.
The limited evidence presented by Atara, and the
undisputed evidence presented by Sawaked, established a triable
issue of fact as to his supervision of employees.

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 2. Primary duty
Sawaked contends there was a triable issue of fact as
to whether he was “primarily engaged” in exempt duties. (Cal.
Code Regs., tit. 8, § 11010, subd. 1(A)(1)(e).) “‘[P]rimarily’ means
more than one-half of the employee’s worktime.” (Lab. Code,
§ 515, subd. (e).) “An employee whose primary duty is ordinary
production work or routine, recurrent or repetitive tasks cannot
qualify for exemption as an executive.” (29 C.F.R. § 541.106(a)
(2021).)
Sawaked’s declaration stated: “I estimate I spent
only 30 to 35 percent of the work week in ‘executive’ roles (e.g.,
apportioning work, reviewing, and supervising work). I spent the
remaining 65-70 percent of my working time producing
deliverable work product, like the results of my material
compliance reviews, comparing results to predetermined range
expectations, monitoring records and results from established
processes and procedures, and reviewing tests and processes to
ensure compliance with relevant safety regulations.”
Although the phrase “producing deliverable work
product” is not precise, Sawaked’s declaration was admissible
and sufficient to establish a triable issue of fact. (Golden West
Baseball Co. v. Talley (1991) 232 Cal.App.3d 1294, 1305,
disapproved on other grounds in Reid v. Google, Inc., supra, 50
Cal.4th 512, 526-527 [employee declared that “he at all pertinent
times was acting in the course of his employment”]; but see
Taylor v. Financial Casualty & Surety, Inc. (2021) 67 Cal.App.5th
966, 994 [disregarding legal conclusions in declaration regarding
employee or agency relationship]; Energy Ins. Mutual Limited v.
Ace American Ins. Co. (2017) 14 Cal.App.5th 281, 300-301 [court
not bound by legal conclusion in declaration whether defendant

9
provided “professional services”].) Atara presented evidence
describing Sawaked’s job duties but no evidence as to the portion
of his time spent on executive duties. Because Atara did not
meet its burden to establish the primary duties requirement of
the executive exemption, the trial court erred in finding the
exemption was established.
3. Salary basis
Although the finding of the executive exemption was
erroneous based on Atara’s failure to establish Sawaked’s
supervision of employees and primary duties, we discuss the
third contested issue, that he was paid a salary, for the benefit of
the trial court on remand. (Cal. Code Regs., tit. 8, § 11010, subd.
1(A)(1)(f).) The evidence on summary judgment established this
requirement.
Sawaked’s offer letter stated a starting salary of
“$180,000 per year,” “subject to adjustment pursuant to the
Company’s employee compensation policies in effect from time to
time.” It further stated, “All forms of compensation referred to in
this letter agreement are subject to reduction to reflect applicable
withholding and payroll taxes and other deductions required by
law.” But the only adjustments to his salary were upward,
including a bonus and a merit increase.
A federal regulation defines “salary basis” as pay of a
“predetermined amount” for each pay period, “not subject to
reduction because of variations in the quality or quantity of the
work performed.” (29 C.F.R. § 541.602(a) (2021)); see Semprini v.
Wedbush Securities, Inc. (2020) 57 Cal.App.5th 246, 252.)
Compensation by a monthly salary is not negated by the
possibility of increases in pay. (Boykin v. Boeing Co. (9th Cir.
1997) 128 F.3d 1279, 1282.)

10
 This case is unlike the cases upon which Sawaked
relies in which pay was: based on commissions (Semprini v.
Wedbush Securities, Inc., supra, 57 Cal.App.5th 246), based on
the number of hours worked (Negri v. Koning & Associates (2013)
216 Cal.App.4th 392, 395), subject to reduction for employee
errors (Takacs v. A.G. Edwards and Sons, Inc. (S.D.Cal. 2006)
444 F.Supp.2d 1100, 1107-1110), subject to deductions for
absences of less than a day (Abshire v. County of Kern (9th Cir.
1990) 908 F.2d 483, 486), or subject to unpaid disciplinary
suspensions (Klem v. County of Santa Clara (9th Cir. 2000) 208
F.3d 1085, 1088). The theoretical possibility of a pay reduction
here did not negate the salary basis because there was neither
“an actual practice of making such deductions or an employment
policy that creates a ‘significant likelihood’ of such deductions.”
(Auer v. Robbins (1997) 519 U.S. 452, 461, superseded by
regulation as stated in Escribano v. Travis County (5th Cir. 2020)
947 F.3d 265, 274.) The general language in the offer letter did
not defeat the executive or administrative exemption because it
did not “‘effectively communicate[]’ that deductions will be made
in specified circumstances.” (Ibid.)
E. Administrative exemption
Atara contends that Sawaked was also exempt
pursuant to the administrative exemption. (Cal. Code Regs., tit.
8, § 11010, subd. 1(A)(2).) Sawaked admits that some
requirements of the administrative exemption were established:
he “customarily and regularly exercise[d] discretion and
independent judgment” (Cal. Code Regs., tit. 8, § 11010, subd.
1(A)(2)(b)), “perform[ed] under only general supervision work
along specialized or technical lines requiring special training,
experience, or knowledge” (subd. 1(A)(2)(d)), and “execute[d]

11
under only general supervision special assignments and tasks”
(subd. 1(A)(2)(e)).4 He denies that three other requirements were
established: “[t]he performance of office or non-manual work
directly related to management policies or general business
operations of his employer or his employer’s customers” (subd.
1(A)(2)(a)(i)), that he was “primarily engaged in duties that meet
the test of the exemption” (subd. 1(A)(2)(f)), and that he “earn[ed]
a monthly salary” (subd. 1(A)(2)(g)). As with the executive
exemption, Atara established he was paid on a salary basis. We
conclude that Atara established Sawaked performed work related
to management or general business operations but there was a
triable issue as to primary duties.
1. Management or general business operations
Atara established that Sawaked performed work
“related to management policies or general business operations.”
(Cal. Code Regs., tit. 8, § 11010, subd. 1(A)(2)(a)(i).) He testified
in his deposition that he “managed the quality assurance group”
and helped establish procedures. The team he managed created,
developed, and implemented new procedures and improved
quality assurance systems. When suppliers manufactured and
tested products, Sawaked’s team confirmed that the work had
been done correctly and authorized the release of products to
clinics.
Sawaked admitted that his job description generally
“align[ed] with” his position. It provided that “the key charter for
the role is to design and implement quality systems within the
clinical phase manufacturing and testing processes for the T Cell

4 Again, we decline to consider the contradictory assertion
made for the first time in Sawaked’s reply brief that he contests
the second two of these requirements.

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cellular therapy programs [to] ensure that selected contract
manufacturing organizations are performing per Atara GMP
compliance expectations.” Listed “Responsibilities” included:
“Develop, implement, and manage a quality management
system,” “Supports contact with the FDA, other regulatory
authorities worldwide and collaborators regarding quality issues
including field alerts, recalls or regulatory actions,” “Manages
GMP Inspections and audits from both regulatory authorities and
collaborators,” and “anticipate and resolve quality issues.” Listed
“Competencies” included “Project management skills.” His duties
included “Research industry guidelines.”
The IWC definition of “administrative exemption”
incorporates a regulation of the Wage and Hour Division of the
United States Department of Labor that gives examples of
“[w]ork directly related to management or general business
operations.” (Cal. Code Regs., tit. 8, § 11010, subd. 1(A)(2)(f),
incorporating 29 C.F.R. § 541.201(b) (2021).) Undisputed
evidence established that Sawaked performed work listed in the
federal regulation, including “auditing,” “research,” “quality
control,” “safety and health,” “personnel management,”
“government relations,” and “legal and regulatory compliance.”
2. Primary duty
As with the executive exemption, Atara failed to
present evidence that Sawaked spent the majority of his work
time on exempt duties. (Cal. Code Regs., tit. 8, § 11010, subd.
1(A)(2)(f).) His declaration that he spent 65 to 70 percent of his
time “producing deliverable work product” created a triable issue
of fact as to whether that work was on the “production” side of
the administrative/production worker dichotomy.” (Bell v.
Farmers Ins. Exchange (2001) 87 Cal.App.4th 805, 821.)

13
Although the dichotomy is not “a dispositive test,” it may be used
as “an analytical tool.” (Harris v. Superior Court (2011) 53
Cal.4th 170, 190.) There was a triable issue of fact as to the
administrative exemption.
F. Payment of overtime and bonuses upon termination
Sawaked was not entitled to receive bonuses for 2017
or 2018 because the offer letter he signed conditioned bonuses on
his being employed on the payment date. (Schachter v. Citigroup,
Inc. (2009) 47 Cal.4th 610, 621; (Neisendorf v. Levi Strauss & Co.
(2006) 143 Cal.App.4th 509, 522-524.) But because there are
triable issues of fact whether Sawaked was exempt from overtime
pay, summary judgment should not have been granted regarding
failure to immediately pay all wages due upon his termination
(Lab. Code, § 201). Triable issues also exist whether Atara had a
good faith belief that would negate penalties for a willful
violation. (Lab. Code, § 203; Diaz v. Grill Concepts Services, Inc.
(2018) 23 Cal.App.5th 859, 868.) Accordingly, we reverse
summary judgment as to the second cause of action.
G. Meal and rest breaks
Although it was not established that Sawaked was an
exempt employee, summary judgment was properly granted
regarding the third cause of action for failure to provide meal and
rest breaks. It was undisputed that Sawaked had the
opportunity to take the breaks and was not discouraged from
doing so. (Brinker Restaurant Corp. v. Superior Court (2012) 53
Cal.4th 1004, 1040; see Cal. Code Regs., tit. 8, § 11010, subds.
11(A) & (B) [“meal period may be waived by mutual consent of
the employer and employee”], 12 [“employer shall authorize and
permit all employees to take rest periods”].)

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H. Accurate wage statements
Because there were triable issues of fact as to
whether Sawaked was exempt from the wage statement
requirements, and whether Atara knowingly and intentionally
failed to comply (Lab. Code, § 226, subds. (a), (e), & (j)), we
reverse summary judgment as to the fourth cause of action.
I. Dishonored check
Sawaked contends the trial court erred in granting
summary judgment as to the fifth cause of action, intentional
payment of wages with a dishonored check. (Lab. Code, §§ 203.1,
212.) This contention lacks merit.
On February 8, 2018, the day he was terminated,
Atara gave Sawaked his final paycheck. When he later advised
Atara it was dishonored by the bank, Atara apologized for its
“clerical oversight” and issued a replacement check on March 7
that added 20 days’ “waiting time penalties” of $14,123.08.
Sawaked stated that he “cannot assess whether the
check contained the correct waiting time penalty.” This does not
constitute evidence that Atara failed to pay the proper penalty.
Nor did any evidence negate Atara’s statement that the error was
unintentional.
J. Breach of employment contract
Sawaked contends that Atara breached its
employment contract. We are not persuaded. The sixth cause of
action alleged that Atara breached agreements that “were
partially written . . . in various handbook [sic], policies, and
procedures,” and “partially oral and implied.” It alleged that
Atara failed to comply with “provisions regarding performance
evaluations, objective feedback, and his legitimate management
role, and his compensation and benefits.”

15
 But Sawaked did not present evidence that any
contractual terms were violated. The signed offer letter did not
contain provisions regarding performance evaluations, feedback,
or “his legitimate management role.” It instead provided that it,
and the Proprietary Information and Inventions Agreement,
“constitute the complete agreement between you and the
Company regarding the subject matter set forth herein. This
letter agreement may not be amended or modified, except by an
express written agreement signed by both you and a duly
authorized officer of the Company (except for terms reserved to
the Company’s discretion).”
Sawaked’s August 2017 midyear review included an
“action plan” to improve areas in which he was “not meeting
expectations.” His supervisor, John Elvig, wrote, “I am
committed to providing you coaching and support as you work on
these development areas, however failure to show sustained
improvement may result in disciplinary action up to and
including termination of employment.”
We need not decide if Elvig’s statement constituted
an enforceable contract (see Scott v. Pacific Gas & Electric
Co. (1995) 11 Cal.4th 454, 463, disapproved on other grounds in
Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 352, fn. 17)
because there is no evidence it was violated. Sawaked contends
that “Atara offered no evidence demonstrating any such coaching
or support took place.” But he acknowledged in his declaration
and deposition that he met with Elvig several times in the
following weeks to receive feedback and discuss his progress
regarding the action plan. Sawaked received written “Action
Plan Updates” in January 2018 that included several months of
comments. Sawaked’s later supervisor, Tara Raab, stated in her

16
declaration that she met with Sawaked on three occasions
regarding his progress in the action plan. Sawaked does not deny
that these discussions with Raab occurred.
Sawaked contends that “Atara promised to give him
management authority commensurate with his position.” But he
cites no evidence to support this contention. His declaration
included assertions that his supervisor arguably undermined his
authority, but he did not show that this breached his contract.
Finally, Sawaked claims that Atara “secretly”
changed the terms of the bonus agreement to require that he be
employed at the time bonuses were distributed. But the offer
letter signed by Sawaked at the beginning of his employment
clearly provided that he “must be employed on the payment date
in order to earn the bonus.”
In summary, Sawaked did not present evidence to
show a contested issue as to whether an express or implied
contract was violated.
DISPOSITION
The order granting summary judgment is reversed as
to the first, second, and fourth causes of action. The judgment is
otherwise affirmed. Appellant shall recover his costs on appeal.
NOT TO BE PUBLISHED.

TANGEMAN, J.

We concur:

GILBERT, P. J. PERREN, J.

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 Henry J. Walsh, Judge

Superior Court County of Ventura

______________________________

Employment Rights Attorneys and Richard D.
Schramm for Plaintiff and Appellant.
Fisher & Phillips, Kristen J. Nesbit and Danielle S.
Krauthamer for Defendant and Respondent.