Filed 4/17/23 Salas v. Smart & Final Stores CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
DANNY SALAS, B314023
Plaintiff and Appellant, Los Angeles County
Super. Ct. No. BC724445
v.
SMART & FINAL STORES, LLC,
et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Barbara Marie Scheper, Judge. Reversed in
part and affirmed in part.
Olivo & Associates and Eduardo Olivo for Plaintiff and
Appellant.
Ogletree, Deakins, Nash, Smoak & Stewart, Jack Sholkoff,
Spencer C. Skeen, and Jennifer P. Suberlak for Defendants and
Respondents.
____________________
Danny Salas sued Smart & Final for retaliation, disability
discrimination and harassment, and defamation. The trial court
granted Smart & Final’s motion for summary judgment. Salas
presented evidence of incoherence and contradictions in Smart &
Final’s explanation for firing him. He also presented evidence
Smart & Final’s management was hostile to his safety complaints
and his use of family leave. Summary judgment was
inappropriate and we reverse. We affirm an order denying Salas’s
request to compel discovery.
I
We summarize Salas’s version of the facts.
Salas drove trucks for the grocery chain Smart & Final for
more than two decades. Smart & Final gave him several “Safe
Driver Awards.”
Smart & Final fired Salas in March 2018. Salas asserts it
was because he reported recurring safety issues and exercised his
right to take leave to care for his disabled mother.
We identify actors and roles. James Moore and Victor Diaz
were Salas’s direct supervisors. Forrest Carlyle and Dallas Kelley
were managers. Supervisors report to managers. Mark Witt was
the vice president of logistics. Witt reported to Tom Paolucci, who
was the group vice president of the supply chain. Aishia Flynn
was a human resources manager.
Carlyle, Kelley, Witt, and Flynn conducted the investigation
leading to Salas’s termination. Carlyle and Witt played major
roles. Carlyle examined Salas’s driver logs and shared his
findings. Witt said he was involved in the investigation and made
the recommendation on discipline.
Salas internally appealed the termination decision. Paolucci
and two other people were part of the appeal committee.
2
Salas had a “leadership role in reporting recurring safety
issues and other operational problems” to Smart & Final’s
management. He often identified safety issues, including trailers
that exceeded legal weight limits. He demanded safety issues be
fixed before he would start deliveries. Smart & Final had a bonus
program for management that depended, in part, on achieving
targets for cost savings, timely deliveries, and maximized use of
trailer space.
Witt started his vice president role in about 2015. He
attended meetings the drivers held. “After a few meetings, [Witt]
began to express his obvious displeasure whenever [Salas] would
report the safety issues that the drivers were concerned about.”
When Salas reported safety issues, Witt rolled his eyes, sighed
loudly, shook his head, and said things like, “here we go again!”,
“not more of this bs” and “we’re going to keep ‘cubing them out.’”
The last statement is about loading trailers to maximum capacity.
Supervisor Moore called Salas to his desk 20 to 25 times
between 2015 and 2017, when Moore went on leave, to review
Salas’s daily driving logs. Moore sometimes asked Salas why he
was in the yard so long. Salas explained it was because he had an
overweight load or a repair.
In late 2015, Salas told supervisor Victor Diaz that Moore
was targeting him for reporting safety issues and overweight
loads. Diaz said he would report this and other issues to
superiors. No one followed up.
Throughout 2017, Salas also complained to manager Kelley
that he was being harassed for complaining about recurring safety
issues and overweight loads.
For at least five years leading up to his termination, Salas
reported safety issues to management, including managers Carlyle
3
and Kelley. The safety issues included the poor condition of
trailers and of equipment drivers used to load and unload the
trailers. Salas knew other employees had been injured using
broken equipment.
In 2017, Smart & Final started using a new program to
record drivers’ activities called “Descartes.” Salas complained to
Victor Diaz, Carlyle, Kelley, and Paolucci that the Descartes
system was defective. Salas complained that the system
incorrectly logged meal and rest times, inaccurately recorded
drivers’ duty status, switched drivers into “driving” status when
they were idle and vice versa, incorrectly registered locations, had
inaccurate GPS readings, failed to register stops, registered stops
that did not occur, and incorrectly recorded driving time and
mileage. These issues continued until Smart & Final suspended
Salas. Management told Salas and other drivers to certify their
logs even if they were inaccurate.
In December 2017, Salas told Carlyle he was upset about the
malfunctioning Descartes system and no one was listening to his
complaints. Carlyle responded that Salas complained too much
and told him “don’t get your panties in a bunch.”
On February 13, 2018, Salas reported an overweight load
and was waiting for it to be corrected. Carlyle asked him why he
was delayed and Salas said it was because of an overweight load.
Carlyle asked Salas how many times he had reported overweight
loads in the past week and in the week before that. Salas said he
did not know. Carlyle left and then returned to question Salas,
who was still waiting for the overweight to be fixed. Carlyle left
again and eventually returned and said, “it’s ready, now leave!”
4
Turning to the family leave issues, beginning in 2006, Salas
took intermittent leave under the Family Medical Leave Act to
care for his disabled mother.
In 2008, Smart & Final asserted Salas did not give complete
documentation for days on which he had taken approved leave.
This assertion was false, but Smart & Final threatened to fire him
for this reason.
When Salas called in to say he needed to take leave,
dispatchers and a transportation operations manager would say
things like, “fuck, you and your FMLA,” “here we go again!” and
“this is bullshit!” Many times, they would hang up while Salas
was talking.
In 2014, Paolucci said a small number of employees,
including those who took family leave like Salas, were affecting
the company’s ability to compete.
Salas complained to Victor Diaz in late 2015 that Salas was
targeted for taking family leave. Salas said he had been told he
was at the top of a “hit-list” because he took family leave. Diaz
said he would report this to superiors. No one followed up with
Salas.
In early 2017, Moore called Salas into the office and said,
“They don’t like FMLA. HR does not like FMLA. I’m just warning
you. . . . Management and HR do not care much about FMLA.”
Moore told Salas that management had a list of drivers, and Salas
was “at the top of the list.”
Throughout 2017, Salas also complained to Kelley about
being harassed for taking family leave.
Smart & Final says it fired Salas because he falsified driver
logs and violated protocols for taking rest breaks due to fatigue.
5
According to Smart & Final, everything started with a
voicemail. On Sunday, January 21, 2018, someone left human
resources manager Flynn an anonymous voicemail about Salas.
The caller said Salas was at a Home Depot in Pomona loading
products into a Smart & Final truck on the Tuesday before that,
January 16, 2018. Flynn forwarded the voicemail to Carlyle and
emailed him about this. Carlyle said the voicemail disappeared
following a power outage after Smart & Final fired Salas. Carlyle
did not play the voicemail for Salas or others.
Carlyle did not find evidence that Salas was unloading
product at Home Depot on January 16, 2018. He did look at
Salas’s driving log for that day and found an issue with Salas’s
stops. Carlyle said the log showed that Salas stopped near the
Home Depot for about a half-hour in one place and one hour in
another place. The log showed his status as “Driving” during that
time, but his odometer reading showed a change of about two
miles.
Carlyle asked a representative from Descartes, Jozef Casar,
about the logs. Casar explained, “By the regulation after 5
min[utes] of not moving, even if the truck is idling (what happened
in this case), the system has asked the driver if he wants to go On
Duty or he wants to stay in Driving.” Unless the driver selects
“Driving” within one minute, “the regulation is demanding,” so
“the system must automatically put the driver into the On Duty
status.” Casar reasoned that Salas must have selected “Driving”
when the prompt came up after five minutes of idling, otherwise
his status would have automatically changed to “On Duty.”
Carlyle forwarded information from Casar to Flynn and Witt
and said it meant Salas changed his status to driving when he was
stopped.
6
Carlyle said he reviewed between 250 and 300 logs from
other drivers. He did not find similar occurrences in which trucks
were in “Driving” status for an extended time without mileage
changes in the odometer readings. Carlyle researched “multiple
random drivers.” He did not note the names of these drivers or the
dates. He did not record information about the search.
Flynn and another Smart & Final employee interviewed
Salas on February 22, 2018 about January 16, 2018.
According to Salas, Flynn told him not to leave until he
wrote a statement, and manager Victor Diaz warned him in
Spanish that Smart & Final would fire him if he did not write one.
Salas wrote a statement explaining that he did not recall exactly
what happened on January 16, but sometimes he takes rest breaks
and it was possible he touched the screen unintentionally during a
break. He noted that the week before, he accidentally touched the
screen and made himself go “Off Duty.” When he was driving on a
highway, the truck had also gone from “On Duty” to “Off Duty”
while in motion.
Smart & Final took Salas’s statements about taking rest
breaks to mean Salas admitted to taking unauthorized fatigue
breaks. Smart & Final requires drivers to report to dispatch if
they take a fatigue break, meaning a break outside of their
allotted meal and rest time. Smart & Final said this was another
reason to fire Salas.
Smart & Final suspended Salas on February 22, 2018, and
terminated him on March 6, 2018.
A week after Smart & Final terminated Salas, Carlyle
approached one of Salas’s former coworkers, smiled, said “where’s
your buddy now? Huh?” and punched the coworker’s arm.
7
A three-person committee decided Salas’s internal appeal.
The members were Paolucci, Kim Cook, who is the general
manager of transportation, and Ginny Diaz, who is the vice
president of associate relations. After reviewing Salas’s file and
hearing a statement from him, the committee upheld the
termination.
Salas sued for alleged whistleblower retaliation for making
safety complaints (Lab. Code, § 1102.5) (first cause of action);
wrongful termination in violation of public policy for using family
leave and for making safety complaints (second cause of action);
disability discrimination for using family leave (Gov. Code, §§
12940, subd. (a) & 12926, subd. (o)) (third cause of action);
disability harassment for using family leave (Gov. Code, § 12940,
subd. (j)) (fourth cause of action); retaliation and discrimination for
requesting a disability accommodation to care for his mother (Gov.
Code, § 12940, subd. (m)) (fifth cause of action); and defamation or
coerced self-defamation (sixth cause of action).
Smart & Final moved for summary judgment. The trial
court granted the motion.
II
A
We review an order granting summary judgment under the
familiar standard. (Aguilar v. Atlantic Richfield Co. (2001) 25
Cal.4th 826, 843, 850–851, 860.)
The governing law for Salas’s second, third, and fifth causes
of action is a three-part burden-shifting test. (See Guz v. Bechtel
Nat. Inc. (2000) 24 Cal.4th 317, 354 (Guz).) First, the plaintiff
must establish a prima facie case raising a presumption of
discrimination. Second, the employer may rebut the presumption
by showing it acted for legitimate and nondiscriminatory reasons.
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Finally, the plaintiff may attack the employer's reasons as
pretextual or may offer other evidence of improper motives. (Id. at
pp. 354–356.)
The trial court ruled that Smart & Final offered legitimate
reasons for its actions and Salas failed to show pretext or improper
motives.
Salas met his burden by showing pretext and improper
motive. We evaluate the totality of his evidence of pretext. (See
Reid v. Google, Inc. (2010) 50 Cal.4th 512, 541.) Salas presented
evidence of incoherence and contradictions in Smart & Final’s
explanation for firing him. (See Morgan v. Regents of University of
California (2000) 88 Cal.App.4th 52, 75.) He also presented
evidence that Smart & Final’s management was hostile toward his
safety complaints and his use of family leave. Viewed together,
the evidence created a reasonable inference of discrimination.
Smart & Final’s investigation had oddities beginning with
the voicemail. An anonymous Sunday voicemail about a person’s
alleged conduct from five days earlier is unusual, as is loss of that
voicemail due to a power outage.
Smart & Final produced two nearly identical emails in
which Flynn told Carlyle about the voicemail. Flynn sent one
email on Sunday, January 21, 2018, at 8:00 p.m. It ends with,
“There was no caller ID so there is no record of the number the call
came from. Let’s discuss when I am back in the office on
Tuesday.” Flynn sent a second email on Monday, January 22,
2018, at 3:59 a.m. It ends with, “There was no caller ID so there is
no record of the number the call came from. I am assuming the
caller was” The sentence ends there. The double emails and the
unfinished sentence are peculiar. Smart & Final offers no
explanations.
9
The evidence about when Smart & Final began investigating
Salas was inconsistent. The voicemail was from January 21.
Carlyle said he started the investigation on January 22. But
Smart & Final produced a tranche of Salas’s logs with a print date
of January 18, three days before the voicemail. Carlyle denied
printing these logs. Who did? Smart & Final does not say. In
early January, also before the start of the investigation, Salas’s
former coworker saw Carlyle and a dispatcher reviewing Salas’s
driving logs on a computer.
There may be innocuous explanations for all of this, but,
making inferences in favor of Salas, this evidence undermines the
foundation of Smart & Final’s investigation.
Salas’s evidence about his personal experience with
Descartes tends to show the logs were an unreliable basis for
termination. He complained to Carlyle and Paolucci the Descartes
system was defective. He identified issues related to this case,
including that the system inaccurately recorded drivers’ duty
status, location, GPS information, driving time, and mileage, and
it registered stops that did not occur.
Smart & Final’s theory of how Salas falsified his log is
questionable. Carlyle based his conclusion that Salas falsified his
log in part on information from Casar, who said that, pursuant to
a demanding regulation, the system gives a prompt after five
minutes of no movement in “Driving” status. Unless the driver
presses a button within one minute of the prompt, the system
defaults to “On Duty.” If that is correct and Smart & Final is right
that Salas made the lengthy stops, it seems Salas would have had
to select “Driving” once every five minutes, about 15 total times
during the alleged stops. That sounds like a poor way to steal
10
company time. Despite its computerized system, Smart & Final
offered no evidence Salas made these multiple inputs.
These issues with the Descartes system and with the theory
of Salas’s falsification undermine Smart & Final’s explanation for
his termination. (See Guz, supra, 24 Cal.4th at p. 361 [proof the
employer’s proffered reasons are unworthy of credence may
considerably assist a circumstantial case of discrimination,
because this suggests the employer had cause to hide its true
reasons].)
Aside from issues with the investigation, Salas presented
evidence that management opposed his use of family leave and his
safety complaints, which created an inference Smart & Final fired
him for these reasons.
Two people involved in firing Salas were openly hostile to his
safety complaints. Witt called Salas’s safety concerns “bs” and
said Smart & Final would keep filling out their trailers despite his
complaints. The month before Carlyle purportedly began his
investigation, Carlyle told Salas he complained too much and told
him not to “get your panties in a bunch” about Descartes issues.
On February 13, 2018, Carlyle questioned Salas for reporting an
overweight load and for waiting for it to be corrected. Carlyle later
expressed pleasure about Salas being fired and gloated to Salas’s
former co-worker.
Salas also presented evidence of Smart & Final’s displeasure
about his family leave. In 2008, Smart & Final threatened to fire
him based on what was a false accusation that his documentation
about his family leave was incomplete. Smart & Final did not
dispute any of this. More recently, when Salas requested leave,
dispatchers and a transportation operations manager regularly
said things like, “fuck, you and your FMLA,” “here we go again!”
11
and “this is bullshit!” Paolucci said employees who took family
leave were affecting the company’s ability to compete. Moore told
Salas that human resources and management did not like family
leave and Salas was at the top of a management “list” for using it.
Salas presents rational inferences that Smart & Final
terminated him not for its stated reasons, but because of his safety
complaints, his use of family leave, or both. His evidence that
Smart & Final’s stated reasons were untrue, his long-term
employment for which he received safety awards, and
management’s statements of hostility toward his safety reports
and use of family leave raise a triable issue of material fact.
Summary judgment therefore was improper for the second, third,
and fifth causes of action.
As to the fourth cause of action, Salas’s harassment claim,
the same evidence about Smart & Final’s reactions to Salas taking
family leave creates triable issues.
An intervening California Supreme Court case affects the
first cause of action, the Labor Code section 1102.5 whistleblower
retaliation claim. Smart & Final’s moving papers and the trial
court’s ruling applied the three-part burden-shifting test to this
claim. In Lawson v. PPG Architectural Finishes, Inc. (2022) 12
Cal.5th 703, 718, the court held that Labor Code section 1102.6,
not the three-part burden-shifting test, applies to Labor Code
section 1102.5 claims. The proper test requires the plaintiff to
establish by a preponderance of the evidence that retaliation for
protected activities was a contributing factor in a contested
employment action. (Lawson, at p. 718.) Then, the employer has
the burden to prove by clear and convincing evidence that it would
have taken the action for legitimate, independent reasons, even
without the plaintiff’s protected activity. (Ibid.)
12
We follow Scheer v. Regents of the University of California
(2022) 76 Cal.App.5th 904 at pages 914–915 and hold that because
its moving papers did not employ the applicable framework under
the Labor Code, Smart & Final failed to meet its initial burden on
the first cause of action. The court should have denied Smart &
Final’s motion as to this cause of action. Smart & Final is not
precluded on remand from moving for summary adjudication on
the first cause of action under the proper framework. (Id. at p.
915.)
As to defamation, the sixth cause of action, Salas again
raised a triable issue, and again for the same reasons. Civil Code,
section 47, subdivision (c) provides a conditional privilege against
defamatory statements made without malice on subjects of mutual
interest. This language applies to employers’ statements about
employees’ conduct. (Cuenca v. Safeway San Francisco Employees
Fed. Credit Union (1986) 180 Cal.App.3d 985, 995–996.) Salas
therefore had to show malice to prevail on this claim. (Id. at pp.
996–997.) “Evidence that an employer offered a pretextual
explanation to justify its wrongful termination may support a
finding of malice or oppression.” (Rubio v. CIA Wheel Group
(2021) 63 Cal.App.5th 82, 98–99 [analyzing malice for punitive
damages award]; see Lundquist v. Reusser (1994) 7 Cal.4th 1193,
1214 [a malice finding for punitive damages is sufficient to
establish malice under section 47, subd. (c)].) Salas’s evidence of
Smart & Final’s pretextual explanation for firing him creates a
triable issue for his defamation claim.
Salas challenges several evidentiary rulings. Because we
reverse summary judgment on the evidence the court admitted, we
do not address these evidentiary issues.
13
B
Salas contests the court’s denial of his motion to compel
discovery, but the request was untimely. On October 16, 2019,
Salas served an amended notice of deposition on a Smart & Final
employee. The notice included 28 requests to produce documents.
The deadline for fact discovery was November 2, 2019. The
employee sat for the deposition on November 1, 2019. The
reporter service submitted the completed original transcript of the
deposition to Salas on December 12, 2019. Salas moved to compel
discovery related to the notice for deposition on March 6, 2020.
The court denied the motion as untimely and on the merits on July
17, 2020.
The court’s ruling was proper. If a deponent does not
produce a document that the deposition notice specified, the party
seeking discovery may move the court to compel that production.
(Code Civ. Proc., § 2025.480, subd. (a).) The party must make the
motion “no later than 60 days after the completion of the record of
the deposition.” (Id., subd. (b).) The court’s ruling was correct
because Salas’s request was beyond the 60-day deadline.
DISPOSITION
The summary judgment is reversed. The July 17, 2020,
order denying Salas’s motion to compel discovery is affirmed. We
award costs to Danny Salas.
WILEY, J.
We concur:
STRATTON, P. J.
VIRAMONTES, J.
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