Martinez v. L.A. Hardwood Flooring, Inc. CA2/3

Filed 5/16/23 Martinez v. L.A. Hardwood Flooring, Inc. CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

MELISSA MARTINEZ, B307980

Plaintiff and Appellant, Los Angeles County
Super. Ct. No. BC715464
v.

L.A. Hardwood Flooring, Inc., et
al.,

Defendants and Respondents.

APPEAL from a judgment of the Superior Court of Los
Angeles County, Holly J. Fujie, Judge. Affirmed.
Employee Justice Legal Group, Kaveh S. Elihu, and Sylvia
V. Panosian for Plaintiff and Appellant.
Jackson Lewis, Andrea F. Oxman, Peter M. Waneis, and
Dylan B. Carp for Defendants and Respondents.
_______________________________________
 INTRODUCTION

Plaintiff and Appellant Melissa Martinez sued her former
employer, defendant and respondent L.A. Hardwood Flooring,
Inc. (L.A. Hardwood), alleging six violations of the Fair
Employment and Housing Act, Government Code1 section 12900
et seq. (the FEHA) in this employment discrimination action, as
well as claims for wrongful termination in violation of public
policy and failure to provide meal and rest periods under the
Labor Code. Martinez also sued her former supervisor, defendant
and respondent Ray Chavez, alleging harassment. L.A.
Hardwood terminated Martinez’s employment after coworkers
reported that she destroyed a customer application and Martinez
neither accepted responsibility nor explained her conduct.
Martinez, who was pregnant at the time, asserts that she was
terminated because of her sex, pregnancy, and disability and that
L.A. Hardwood’s explanation for her termination is pretextual.
L.A. Hardwood and Chavez (collectively, defendants)
successfully moved the trial court for an order granting summary
judgment, and Martinez appeals from the judgment entered
based on that order. We conclude that defendants met their
burden of establishing that there is no triable issue of material
fact as to any of Martinez’s causes of action.2 To the extent the

1 All undesignated statutory references are to the Government Code.
2 Martinez does not address the trial court’s summary adjudication of
her claims for declaratory relief, failure to pay wages, failure to provide
itemized wage statements, and waiting time penalties. We consider
those issues waived and do not address them further herein. (Moulton
Niguel Water Dist. v. Colombo (2003) 111 Cal.App.4th 1210, 1215.)

2
court erred in excluding certain declaration evidence, we conclude
any such errors were not prejudicial.

FACTS AND PROCEDURAL BACKGROUND

L.A. Hardwood sells hardwood flooring to stores and
licensed contractors. Its showrooms are not open to the public. To
shop at L.A. Hardwood, customers must have an established
account. Potential customers typically apply for accounts by
emailing or faxing an application to L.A. Hardwood.
Martinez began her at-will employment with L.A.
Hardwood in July 2016 as a customer service representative.
Martinez was hired to L.A. Hardwood’s location in downtown Los
Angeles, but was trained at its Pacoima location, where her
supervisor was Jessica Palma (née Barajas). After three weeks,
Martinez moved to the downtown location, where Chavez was her
supervisor. Chavez reported to Yafit Algazi, who was then Vice
President of Operations. Algazi was responsible for handling
human resources issues. She worked with ADP Total Source
(ADPTS), which provided a representative with whom Algazi
could seek advice regarding human relations matters.
Martinez and other customer service representatives sat at
a counter at the front of the showroom and were responsible for
greeting and helping customers. The customer service
representatives sat near a fax machine and were also responsible
for checking the fax machine throughout the day.
In January 2017, Martinez complained to Palma that
Chavez showed favoritism in his management and was
disrespectful to certain employees. The comments of which
Martinez complained were not of a sexual nature. Algazi had a
meeting with Chavez and Martinez during which “[e]verything
was put on the table.” Martinez was satisfied with how the

3
situation was resolved. Sometime between January and March of
2017, Martinez made similar complaints about Chavez’s
treatment of her—specifically, that the way he spoke to Martinez
was not very manager-like—to another L.A. Hardwood employee.
On April 1 or 2, 2017, Martinez learned she was pregnant.
On April 3, Martinez approached Chavez with a coworker,
Jasmine Chavarria, to let him know she was pregnant.3 Martinez
testified that she was nervous and crying when she approached
Chavez. Martinez asked Chavarria to tell Chavez the news and,
after she did, Chavez asked how far along she was. Martinez
responded that she had taken a home test and needed to confirm
it. Chavez asked why she would get herself into this situation
and stated that he would now need to go through the process of
hiring someone else and training them because Martinez would
need time off. Martinez requested at least a day off to confirm her
pregnancy with a doctor. Chavez suggested that she could do so
after work or on the weekend. Martinez’s doctor was only
available during the week, so she faked stomach pains and went
to an urgent care that evening to have her pregnancy confirmed.
On April 28, Martinez complained about Chavez’s reaction
to her pregnancy to Palma, who told Martinez she would raise
the issue with Algazi. After Palma spoke to Algazi, Palma told
Martinez to “Just leave it alone,” and to “Just . . . do [her] job and
just do what [she’s] told.” Palma also told Martinez that Algazi
wanted to have a meeting with Chavez and Martinez, but

3 Chavarria testified that she did not recall accompanying Martinez
when she told Chavez about her pregnancy. In a declaration,
Chavarria stated that she never heard Chavez or anyone else make
inappropriate comments about Martinez’s pregnancy.

4
Martinez did not want to have a meeting with Chavez. Martinez
and Palma did not discuss the matter further. Martinez testified
that she had wanted Algazi to give Chavez a warning or remind
him of the policies regarding discrimination, but she did not do
so. Martinez felt that Algazi favored Chavez.
Algazi informed Chavez that Palma had reached out to her
regarding Martinez’s complaint. She recalled that he asked, “Why
did she call Pacoima?” Algazi replied with the “straight facts,”
which were that Martinez had reached out to Palma and “didn’t
even talk to [Algazi],” and that Palma had informed Algazi.
Algazi testified that she did not think Chavez was frustrated, but
simply “didn’t understand why an employee would go a different
channel.” She did not know how he felt about Martinez reaching
out to Palma or whether he took it personally. Chavez testified
that he recalled learning about the incident from another
employee but that he did not ask Algazi what had caused
Martinez to complain to Palma.
Chavez asked Martinez to schedule her monthly prenatal
check-ups around the workday. She testified that she had to miss
one appointment because Chavez told her that she could start her
shift late, but her doctor did not have an appointment available
at that time. Chavez did not allow her to leave early that day and
told her to schedule the appointment for another day. Martinez
testified that she was “pretty sure” that she had been able to do
so. Martinez agreed that, while employed with L.A. Hardwood,
she was able to “[e]ventually” get the maternity care she needed
from her doctor.
Chavez never told Martinez that she could not take
maternity leave. The only comments he made in relation to
Martinez’s pregnancy that she found offensive were those made

5
on April 3, 2017. She had no other complaints about the way she
was treated by anyone at L.A. Hardwood in connection with her
pregnancy. Martinez did not request any accommodation other
than taking time off work (i.e., coming in late or leaving early) to
attend doctor’s appointments.
Apart from the comment relating to her pregnancy,
Martinez found Chavez’s statement on one occasion that she was
doing more talking than working to be offensive. She testified
that other coworkers were not disciplined for talking or
socializing at work, to her knowledge. However, Martinez also
testified that she observed Chavez speaking in a similar manner
to other employees as he spoke to her. She further testified that
Chavez did not say anything else to her that she found upsetting
or disliked.
On June 7, 2017, Martinez received a written warning
because her cash box was $150 short, in violation of company
policy. Chavez consulted with Algazi regarding the warning and
what should be included. Algazi further testified that a written
warning was appropriate because missing money is a more
serious offense than, for example, coming in late. Martinez
believed it was unfairly issued because she immediately informed
Chavez of the issue. She testified that, after his comments on
April 3, she believed that any comments from Chavez were
related to her pregnancy. However, Chavez did not state that he
was issuing the warning because of her pregnancy or because she
was a woman, and Martinez did not tell anyone at L.A. Hardwood
that she believed she had been issued the written warning
because of her pregnancy. According to Martinez, Chavez said
that he was sorry that he had to write her up, and she replied,
“Okay. Well, I told you that the money was missing, and you told

6
me to put it back. So even after you made me put it back out of
my own pocket, you are still going to write me up for a warning
for it.”
On June 27, 2017, another customer service representative,
Paola Reyes, told Chavez that a contractor had called L.A.
Hardwood and was upset because he had submitted a customer
application and then re-faxed it because the first application was
not received. Reyes stated that she and another customer service
representative, Maria Arreola, had observed Martinez receive
papers from the fax machine and then throw them away. Reyes
informed Chavez that Martinez had told them not to say
anything if asked. Reyes then showed Chavez the re-faxed
papers. He also obtained the confirmation sheet for the original
fax. Chavez confirmed Reyes’s version of events with Arreola.
Reyes testified that Martinez held up a customer
application, said “we never received this,” and then tore it up.
She stated that the customer later called in and that Arreola
spoke with him. She also testified that Arreola had looked in
Martinez’s trash can and saw the torn-up application. She also
stated that Arreola had taken the re-faxed application out of the
machine. Reyes testified that she told Chavez about the incident
that same day. Arreola testified that Martinez took a fax from the
machine and ripped it and threw it away. She testified that she
did not hear Martinez say anything and that she did not know
that it was a customer application until later.
After he spoke with Reyes, Chavez contacted Algazi and
told her what he had learned from Reyes and Arreola. He also
informed her about the fax confirmation sheet. He testified that
he did not recommend termination or any form of discipline.

7
Algazi told him that she would look into the issue and would let
him know her decision.
Algazi testified that Chavez informed her of the incident
but did not make any recommendation as to how she should
handle the situation. Algazi reached out to ADPTS to discuss her
options with a representative. The representative recommended
that Algazi speak with Martinez and, depending on whether she
took responsibility for her actions and apologized, the decision
could be made to terminate or not. Algazi testified that, when she
spoke with Martinez, Martinez failed to offer any explanation.
She denied it and vaguely responded that she did not know or
remember what happened. Algazi testified that, based on this
response, she had no choice but to terminate Martinez’s
employment.
Martinez testified that, when Algazi showed her the
application and told her that other employees had seen her rip up
the application, she replied, “Okay. Who said that? Because we
can clarify it right now with no problem.” Algazi told her that
who reported it was irrelevant and that she had given Martinez a
chance to explain, so they would be terminating her employment.
Martinez asked to speak to Algazi without Chavez present, but
Algazi replied that Martinez could say whatever she wanted to
say in front of Chavez. Chavez did not speak during the meeting.
According to Martinez, Algazi did not say anything negative
about Martinez’s pregnancy, gender, or sex during the
termination meeting.
Martinez did not testify as to whether she did or did not
discard the application. When asked whether she recalled
receiving an application and saying, “I never received this” before
tearing it up, Martinez testified that she did not recall. When

8
asked whether she had denied tearing up the application to
Algazi, Martinez stated that she had told Algazi that she did not
recall.
Martinez testified that she had torn up other applications,
including duplicates or illegible applications. However, Chavez
had never told her that it was okay to tear up applications.
Arreola testified that she did not throw faxes away and would file
away faxes that were illegible or duplicates. She did not see other
employees throwing faxes away and did not know of anyone being
terminated for doing so. Reyes similarly testified that she did not
throw away illegible applications or duplicate applications and
did not observe others doing so. Chavarria testified that when
they received an illegible application, they would place it on the
side in a folder. She did not see anyone throw out applications
that were faxed in. She testified that duplicates would be stapled
to the original. Chavarria never asked Chavez whether they
could throw out illegible or duplicate applications. Palma testified
that, at the Pacoima location, she observed customer service
representatives sometimes throw away documents retrieved from
the fax machine, including “transmission slips or those vacation
fliers that randomly come through.” However, she did not inspect
every document and did not know whether other documents were
being thrown away. Palma did not know whether any employees
were terminated for throwing away documents but knew that
none of the employees she observed doing so were terminated.
She did not know whether there was a company policy against
throwing away documents from the fax machine.
During her employment with L.A. Hardwood, Martinez
understood that she was supposed to take a lunch break every
day. She testified that no one ever told her that she could not

9
take her lunch break, but that sometimes Chavarria, who worked
as an accountant, would say that they were too busy to take
lunch. Chavarria was not Martinez’s supervisor. Martinez did not
report such comments to Chavez, Algazi, or to the owner of L.A.
Hardwood. Martinez testified that she understood L.A.
Hardwood’s rest break policy and took her rest breaks “most of
the time.” No one told her that she was not permitted to take a
break, but she felt that she “had to” keep working if it was busy
in the showroom. Sometimes Chavarria would say “No tens.” A
former coworker of Martinez’s would not listen to Chavarria and
would take her break regardless. To Martinez’s knowledge, she
was not disciplined for doing so. Martinez did not recall how
many times she was unable to take a rest break or meal break,
but that it happened on busy days. She estimated that she was
unable to take a lunch break more than four but less than 10
times, and gave a similar estimate for the number of rest breaks
she was unable to take. There were break rooms at both the
downtown Los Angeles and Pacoima locations for employees to
use during their breaks.
Martinez filed suit against L.A. Hardwood, asserting
twelve causes of action: (1) discrimination because of sex,
pregnancy and disability; (2) harassment because of sex,
pregnancy and disability; (3) retaliation for reporting her
pregnancy and requesting accommodations; (4) failure to prevent
discrimination, harassment and retaliation; (5) failure to provide
a reasonable accommodation for a disability; (6) failure to engage
in a good faith interactive process; (7) declaratory relief; (8)
wrongful termination in violation of public policy; (9) failure to
pay wages due; (10) failure to provide meal and rest breaks; (11)
failure to provide itemized wage statements; and (12) waiting

10
time penalties. Martinez alleged the harassment claim against
Chavez too.
Defendants moved for summary judgment, and the trial
court granted their motions and sustained various objections they
raised to declaration evidence submitted by Martinez. Martinez
timely appealed.
Martinez filed her original opening brief in June 2022. In
their first brief, defendants pointed out that the statement of
facts in Martinez’s opening brief cited primarily to her
memorandum of points and authorities in opposition to the
summary judgment motion and her separate statement of
additional disputed facts. They correctly noted that neither her
briefing nor the separate statement constitutes evidence.4
Defendants argued that this court should dismiss the appeal on
the ground that Martinez failed to affirmatively demonstrate
error because she did not provide an adequate appellate record,
including citations to the record. (Randall v. Mousseau (2016) 2
Cal.App.5th 929, 935; Cal. Rules of Court, rules 8.124(b),
8.204(a)(1)(C).)
Martinez thereafter filed a notice of errata correcting more
than 70 citations in her opening brief. It appears that Martinez
added in citations to the evidence underlying the portions of the

4 See Gdowski v. Gdowski (2009) 175 Cal.App.4th 128, 139
[“Statements and arguments by counsel are not evidence.
[Citations.]”]; Guthrey v. State of California (1998) 63 Cal.App.4th
1108, 1115 [citation to footnote of memorandum of points and
authorities “obviously is not to admissible evidence in the record that
indicates a triable issue of fact exists”]; Jackson v. County of Los
Angeles (1997) 60 Cal.App.4th 171, 178, fn. 4 [“a separate statement is
not evidence; it refers to evidence submitted in support of or opposition
to a summary judgment motion”].

11
memorandum of points and authorities or separate statement she
had previously cited. This Court ordered the original opening
brief stricken, instructed Martinez to file a new opening brief,
and stated that defendants may also file a new brief to replace
their existing brief. Martinez was not permitted to file a reply
brief. The parties have now done so.

DISCUSSION

1. Summary judgment was properly granted.
Martinez contends that there are triable issues of material
fact with respect to her discrimination and retaliation causes of
action because there is evidence that L.A. Hardwood’s decision to
terminate her was pretextual. Specifically, she argues that Algazi
was a “cat’s paw” for Chavez, that other employees destroyed and
disposed of faxed documents without being terminated, and that
L.A. Hardware’s business justification was not entitled to
credence. She further argues that there was a triable issue of
material fact with respect to her failure to accommodate and to
engage in a good faith interactive process causes of action
because she was disabled by her pregnancy and because Chavez
told her to go to appointments around the workday and did not
permit her to take full days off. Martinez contends that evidence
of a single incident of harassment is sufficient to defeat summary
judgment and that the trial court improperly overlooked the
incident with the cash box in granting summary judgment with
respect to her harassment claim. Additionally, Martinez contends
that there was a triable issue of material fact as to whether
Chavez pressured and discouraged employees from taking their
rest and meal breaks. Finally, Martinez argues that Chavez’s
conduct, which Algazi and the owner of L.A. Hardwood consented

12
to, created an issue of material fact as to whether L.A.
Hardwood’s conduct supports punitive damages.
For the reasons discussed herein, we reject these claims
and conclude that summary judgment was properly granted.
1.1. Standard of Review
We review an order granting summary judgment de novo,
“considering all the evidence set forth in the moving and
opposition papers except that to which objections have been made
and sustained.” (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th
317, 334 (Guz).)
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).) “In performing our
de novo review, we must view the evidence in a light favorable to
plaintiff as the losing party [citation], liberally construing her
evidentiary submission while strictly scrutinizing defendants’
own showing, and resolving any evidentiary doubts or
ambiguities in plaintiff’s favor.” (Saelzler v. Advanced Group 400
(2001) 25 Cal.4th 763, 768.)
Summary judgment is appropriate only when “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).) A triable
issue of material fact exists if the evidence and inferences
therefrom would allow a reasonable juror to find the underlying
fact in favor of the party opposing summary judgment. (Aguilar v.
Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850, 856.)
In the employment discrimination context, an employee’s
evidence submitted in opposition to an employer’s motion for

13
summary judgment is construed liberally, yet “remains subject to
careful scrutiny.” (King v. United Parcel Service, Inc. (2007) 152
Cal.App.4th 426, 433.) The employee’s “subjective beliefs . . . do
not create a genuine issue of fact; nor do uncorroborated and self-
serving declarations.” (Ibid.)5
1.2. The court properly granted summary
adjudication on the discrimination and
retaliation causes of action.
As a preliminary matter, Martinez begins by discussing the
cat’s paw theory but fails to identify the elements of the
discrimination and retaliation causes of action to which this
theory pertains. “[T]he failure to provide legal authorities to
support arguments forfeits contentions of error.” (Ewald v.
Nationstar Mortgage, LLC (2017) 13 Cal.App.5th 947, 948.)
“Without a statement of the elements of a cause of action,
supported by authority, counsel cannot establish whether triable
issues of fact exist as to [that] cause of action.” (Id. at p. 949.)
This is grounds to conclude that any claim of error as to the
discrimination and retaliation causes of action are forfeited on
appeal. Although we exercise our discretion to reach the merits in
this instance, we are not inclined to overlook the other failings in
Martinez’s briefing, discussed infra.
The FEHA provides, in relevant part, that “[i]t is an
unlawful employment practice . . . . [¶] (a) For an employer,
because of the . . . physical disability, . . . medical condition, . . .

5 Since our review is de novo, we decline to address Martinez’s
contention that the court did not apply the correct standard because it
labeled certain of her arguments unpersuasive and stated that she
identified no evidence in support of certain claims.

14
sex, [or] gender . . . of any person, to refuse to hire or employ the
person . . . or to bar or to discharge the person from
employment . . . .” (§ 12940, subd. (a).) To establish a prima facie
case for disparate treatment discrimination, plaintiff must show
(1) she was a member of a protected class, (2) she is otherwise
qualified to do her job, with or without accommodations, (3) she
suffered an adverse employment action, and (4) some other
circumstance suggests discriminatory motive. (See Guz, supra, 24
Cal.4th at p. 355.)
“[T]o establish a prima facie case of retaliation under the
FEHA, a plaintiff must show (1) he or she engaged in a ‘protected
activity,’ (2) the employer subjected the employee to an adverse
employment action, and (3) a causal link existed between the
protected activity and the employer’s action.” (Yanowitz v.
L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042 (Yanowitz);
§ 12940, subd. (h).)
For both the discrimination and retaliation causes of
action, once a prima facie case is established, the burden shifts to
the defendant to produce evidence demonstrating the adverse
action taken against the plaintiff was unrelated to his age or
disability (i.e., a non-discriminatory reason). (Guz, supra, 24
Cal.4th at p. 357; Yanowitz, supra, 36 Cal.4th at p. 1042.) A
legitimate, nondiscriminatory reason is one that is unrelated to
prohibited bias and that, if true, would preclude a finding of
discrimination. (Guz, at p. 358.) “While the objective soundness of
an employer’s proffered reasons supports their credibility . . . ,
the ultimate issue is simply whether the employer acted with a
motive to discriminate illegally.” (Ibid.) The employer’s evidence
must be sufficient to allow the trier of fact to conclude that it is
more likely than not that one or more legitimate,

15
nondiscriminatory reasons were the sole basis for the adverse
employment action. (Kelly v. Stamps.com Inc. (2005) 135
Cal.App.4th 1088, 1097–1098.)
By presenting such evidence, the employer shifts the
burden to the plaintiff to present evidence that the employer’s
decision was motivated at least in part by prohibited
discrimination. (Guz, supra, 24 Cal.4th at pp. 353, 357; Sandell v.
Taylor-Listug, Inc. (2010) 188 Cal.App.4th 297, 309.) The
employee’s evidence must relate to the motivation of the decision
makers and prove, by nonspeculative evidence, “an actual causal
link between prohibited motivation and termination.” (King v.
United Parcel Service, Inc., supra, 152 Cal.App.4th at pp. 433–
434.) To show that an employer’s reason for termination is
pretextual, an employee “ ‘cannot simply show that the
employer’s decision was wrong or mistaken, since the factual
dispute at issue is whether discriminatory animus motivated the
employer, not whether the employer is wise, shrewd, prudent or
competent.’ ” (Hersant v. Department of Social Services (1997) 57
Cal.App.4th 997, 1005.) “Rather it is incumbent upon the
employee to produce ‘substantial responsive evidence’
demonstrating the existence of a material triable controversy as
to pretext or discriminatory animus on the part of the employer.”
(Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 862
(Serri).) To meet this burden, the employee “ ‘must demonstrate
such weaknesses, implausibilities, inconsistencies, incoherencies,
or contradictions in the employer’s proffered legitimate reasons
for its action that a reasonable factfinder could rationally find
them “unworthy of credence,” ’ ” and hence infer “ ‘ “that the
employer did not act for [the asserted] nondiscriminatory
reasons.” ’ ” (Hersant, at p. 1005.) The stronger the employer’s

16
showing of a legitimate, nondiscriminatory reason, the stronger
the plaintiff’s evidence must be in order to create a reasonable
inference of a discriminatory motive. (Guz, at p. 362 & fn. 25.)
We will assume for the sake of argument that Martinez
established a prima facie case for discrimination and retaliation.
However, L.A. Hardwood has met its burden to produce evidence
“that its action was taken for a legitimate, nondiscriminatory
reason.” (Guz, supra, 24 Cal.4th at pp. 355–356; Yanowitz, supra,
36 Cal.4th at p. 1042.) Algazi ended Martinez’s employment
because of Martinez’s failure to meaningfully address her
coworkers’ allegation that she destroyed a customer’s faxed
application and essentially told them to lie about it. This evidence
satisfies L.A. Hardwood’s burden to make a “ ‘sufficient showing
of a legitimate reason for discharge.’ ” (Hanson v. Lucky Stores,
Inc. (1999) 74 Cal.App.4th 215, 225.)
Thus, we consider whether there is substantial responsive
evidence demonstrating the existence of a material triable
controversy as to discriminatory or retaliatory animus on the
part of the employer. (Serri, supra, 226 Cal.App.4th at p. 862.)
Martinez raises several arguments to support that the decision to
terminate her employment was pretextual.
First, Martinez argues that, although Algazi did not have a
discriminatory motive, she acted as Chavez’s “cat’s paw” in
terminating Martinez. In support of this claim, she relies on two
cases: DeJung v. Superior Court (2008) 169 Cal.App.4th 533
(DeJung) and Reeves v. Safeway Stores, Inc. (2004) 121
Cal.App.4th 95 (Reeves). In DeJung, the plaintiff requested to
work as a full-time court commissioner after previously splitting
the commissioner position with another. (DeJung, at p. 540.) The
presiding judge of the superior court, who was also chair of the

17
court’s executive committee, informed the plaintiff that the
committee “ ‘want[ed] somebody younger, maybe in their 40’s.’ ”
(Ibid.) When another court employee asked the presiding judge
about the plaintiff, the presiding judge replied, “ ‘[He’s] a great
guy, but we’re looking for someone younger.’ ” (Id. at p. 541.) The
plaintiff nevertheless applied for the position and was selected by
a screening committee (which did not include the presiding judge)
for an interview. (Ibid.) The interview panel, of which the
presiding judge was part, did not rank the plaintiff among their
top three candidates. (Ibid.) Ultimately, a candidate who was 43
years old and was not ranked among the top three candidates by
the interview panel was appointed to the position of
commissioner. (Id. at p. 542.) The plaintiff then filed a complaint
for age discrimination in hiring. (Ibid.)
The court observed that the plaintiff was not required to
“demonstrate that every individual who participated in the
failure to hire him shared discriminatory animus in order to
defeat a summary judgment motion . . . . [S]howing that a
significant participant in an employment decision exhibited
discriminatory animus is enough to raise an inference that the
employment decision itself was discriminatory, even absent
evidence that others in the process harbored such animus.”
(DeJung, supra, 169 Cal.App.4th at p. 551.) “[I]t can hardly be
argued that Hardcastle, as the presiding judge and the chair of
the Executive Committee, was not a direct and important
participant in the Superior Court’s decisionmaking process when
it decided not to retain DeJung in the full-time commissioner
position.” (Id. at p. 552.)
Here, there is no evidence to support that Chavez was a
significant part of the decision-making process. The undisputed

18
evidence establishes that, after learning about the incident,
Chavez brought the matter to Algazi’s attention, who was
responsible for human relations. He did not make any
recommendations regarding what action Algazi should take.
Algazi testified that she did not make any decisions regarding
Martinez’s employment until she spoke with Martinez and
Martinez responded only vaguely to her questions about what
happened. Martinez herself testified that she told Algazi that she
did not recall the incident and did not affirmatively admit or
deny what Reyes and Arreola had told Chavez. While Chavez was
present at the meeting at which Martinez was terminated, it is
undisputed that he said nothing. The circumstances here thus
bear little resemblance to the circumstances in DeJung, where
the presiding judge who had repeatedly stated that the plaintiff
was too old for the position was part of the committees that
decided whether the plaintiff would be hired.
The circumstances are also distinguishable from those
present in Reeves. The plaintiff in Reeves had acted on behalf of
certain female coworkers in reporting sexual harassment by
other employees, including Brian Sparks, to their supervisor,
Fred Demarest. (Reeves, supra, 121 Cal.App.4th at pp. 100–101.)
Demarest claimed to investigate the matter and concluded that
there was no evidence of harassment, even though a female
employee testified that she had complained to Demarest directly
about the issue. (Id. at p. 101.) According to the district manager,
Moira Susan Hollis, Demarest had acted improperly in
investigating the matter on his own rather than reporting the
claimed harassment to human resources. (Ibid.) Although
Demarest asked the plaintiff not to enter the store after closing,
the plaintiff asked to be let back in after his shift ended because

19
he urgently needed to use the restroom. (Id. at pp. 101–102.)
Another employee, Sandy Juarez, refused to let him in and
claimed that the plaintiff became irate and pushed her with both
hands through the doors. (Id. at p. 102.) Sparks also testified that
he saw the plaintiff push Juarez, although Juarez did not
remember seeing Sparks in the area when the incident occurred.
(Ibid. & fn. 4.) Juarez reported the incident to Demarest, and,
after an investigation, the plaintiff’s employment was
terminated. (Id. at pp. 103–105.)
The plaintiff’s termination involved four principal actors:
“Juarez, who reported the May 31, 1998 confrontation with
plaintiff as a battery; Demarest, who reported the incident to
security as an instance of ‘possible workplace violence’; [Darrell]
Harrison, who conducted an investigation of the incident; and
Hollis, who adopted Harrison’s recommendation and formally
discharged plaintiff.” (Reeves, supra, 121 Cal.App.4th at p. 116.)
While it was unclear whether Juarez’s motives could be imputed
to the defendant, “the evidence present[ed] ample basis for
finding retaliatory motives and conduct on the part of plaintiff’s
unquestioned supervisor, Demarest[,]” including that he
“resented and opposed plaintiff’s efforts to secure relief for the
women in the store from what plaintiff believed (with the
agreement of at least some of them) was a pattern of sexual
harassment.” (Id. at p. 117.) He “acted entirely on the basis of
accounts from Juarez and Sparks, each of whom had a reason—
which could well have been readily apparent to Demarest—to

20
portray plaintiff’s conduct ‘in the worst possible light.’ ” (Ibid.)6
He also “referred the matter to security rather than to the human
resources department,” and there was “substantial evidence that
Demarest knew such a referral was substantially certain to
result in the dismissal of [plaintiff]” since “every case he ever
referred to security resulted in dismissal where it involved ‘an
allegation of improper conduct’ comparable to the allegations
against plaintiff.” (Id. at pp. 117–118.)
With respect to the third actor, Harrison, “[t]he record
includes no testimony by him concerning his reasons for
recommending that Hollis dismiss plaintiff[]” and indicated that
the plaintiff had told him about sexual harassment complaints
that plaintiff had relayed to Demarest. (Reeves, supra, 121
Cal.App.4th at pp. 118–119.) The evidence further supported that
his investigation “was heavily skewed to favor the ostensibly
tentative conclusions of the reporting supervisor, Demarest[]”
and failed to include any ameliorating circumstances. (Id. at
pp. 119–120.) Thus, although it was “undisputed that Safeway
has articulated a legitimate nondiscriminatory reason for its
actions with respect to district manager Hollis, who made the
ultimate decision to discharge plaintiff . . . . Safeway ha[d] failed
to make a threshold showing that all material contributors to the
decision acted for legitimate nondiscriminatory motives[]” and
failed to “show[] that plaintiff cannot present sufficient proof to
establish that retaliatory animus on the part of one or more

6The female employee who complained to Demarest about sexual
harassment had listed Juarez among the coworkers by whom she had
been harassed at Safeway. (Reeves, supra, 121 Cal.App.4th at p. 117.)

21
contributors to the decision was a substantial contributing factor
in bringing about his dismissal.” (Id. at p. 113.)
In Reeves, both witnesses to the incident that resulted in
the plaintiff’s termination had been accused of sexual harassment
and had reason to portray the plaintiff’s conduct in the worst
light because he had raised the issue of sexual harassment to his
supervisor. Here, Martinez identifies no evidence suggesting that
Reyes or Arreola had any bias against her. Further, in contrast to
Demarest, who referred the matter to security with the
knowledge that this would likely result in the plaintiff’s
termination, Chavez referred the matter to Algazi, who was
responsible for human resources. There is no evidence to suggest
that Chavez knew that this course of action would result in
Martinez’s termination. Further, Algazi, who was the ultimate
decision-maker, did not merely implement the recommendations
of others, as Hollis did. There is no evidence that supports that
Chavez made any recommendation as to what action Algazi
should take. Algazi first consulted with a third-party human
resources service, ADPTS, about her options and then met with
Martinez and offered her an opportunity to explain before
making her decision.
Under these circumstances, we conclude that there is no
substantial evidence that would permit a jury to find that Chavez
used Algazi as a conduit to terminate Martinez’s employment.
Martinez also argues that the decision to terminate her
employment was pretextual because she claims that other
employees disposed of applications that were illegible or
duplicates and were not fired. “To establish discrimination based
on disparate discipline, it must appear ‘that the misconduct for
which the employer discharged the plaintiff was the same or

22
similar to what a similarly situated employee engaged in, but
that the employer did not discipline the other employee
similarly.’ [Citation.]” (McGrory v. Applied Signal Technology,
Inc. (2013) 212 Cal.App.4th 1510, 1535.) “Another employee is
similarly situated if, among other things, he or she ‘ “engaged in
the same conduct without any mitigating or distinguishing
circumstances.” ’ [Citation.]” (Wills v. Superior Court (2011) 195
Cal.App.4th 143, 172, italics added.) There is no evidence in the
record indicating that another employee intentionally tore up an
original customer application in front of coworkers and told them
to say nothing about it, as Reyes claimed Martinez did. Other
employees at the downtown Los Angeles location, including
Chavarria, Reyes, and Arreola, denied disposing of even duplicate
and illegible applications. While employees at the Pacoima
location apparently disposed of duplicate and illegible documents,
there is no testimony from any L.A. Hardwood employee stating
that they thought it was permissible to dispose of original, legible
customer applications. Moreover, there is no evidence in the
record that anyone had previously reported such conduct to
Algazi and that they were treated in a different manner than
Martinez.
Finally, Martinez argues, without citation to the record,
that L.A. Hardwood’s proffered business justification for
terminating Martinez’s employment was not entitled to credence.
Any statement in a brief concerning matters that are in the
appellate record, whether factual or procedural, whether in the
statement of facts, the procedural history, or the argument
portion of the brief, must be supported by a citation to the record.
(Cal. Rules of Court, rule 8.204(a)(1)(C); City of Lincoln v.
Barringer (2002) 102 Cal.App.4th 1211, 1239, fn. 16 [record

23
citations in statement of facts do not cure failure to include
record citations in argument portion of brief]; Alki Partners, LP v.
DB Fund Services, LLC (2016) 4 Cal.App.5th 574, 590, fn. 8
[same].) Martinez’s reference to approximately 12 pages of her
statement of facts, which contains record citations, in support of
this argument does not cure the failure. “To provide record
citations for alleged facts at some points in a brief, but not at
others, frustrates the purpose of [Rule 8.204(a)(1)(C)], and courts
will decline to consider any factual assertion unsupported by
record citation at the point where it is asserted.” (Alki, at p. 590,
fn. 8, italics added.) In their original respondent’s brief,
defendants, relying on Alki, argued that Martinez had failed to
preserve another issue for appeal by merely referencing an
earlier portion of her brief and failing to provide record citations.
Accordingly, Martinez was on notice and had an opportunity to
remedy this error in her corrected opening brief. She failed to do
so and thus waives this contention.
We therefore conclude that a trier of fact could not
reasonably conclude that L.A. Hardwood’s stated reasons for
terminating Martinez’s employment were implausible,
inconsistent or baseless and that the court did not err in
summarily adjudicating Martinez’s discrimination and
retaliation causes of action.
1.3. The court properly granted summary
adjudication on Martinez’s accommodation and
good faith interactive process claims.
The elements of a cause of action for failure to
accommodate a disability under the FEHA are (1) the plaintiff
has a disability under the FEHA or was regarded as having a
disability, (2) the plaintiff is qualified to perform the essential

24
functions of the job with or without reasonable accommodation,
and (3) the employer failed to reasonably accommodate the
plaintiff’s disability. (Scotch v. Art Institute of California (2009)
173 Cal.App.4th 986, 1009–1010.)
“ ‘Two principles underlie a cause of action for failure to
provide a reasonable accommodation. First, the employee must
request an accommodation. [Citation.] Second, the parties must
engage in an interactive process regarding the requested
accommodation and, if the process fails, responsibility for the
failure rests with the party who failed to participate in good faith.
[Citation.]’ ” (Avila v. Continental Airlines, Inc. (2008) 165
Cal.App.4th 1237, 1252.) “Generally, ‘ “[t]he employee bears the
burden of giving the employer notice of the disability. [Citation.]
This notice then triggers the employer’s burden to take ‘positive
steps’ to accommodate the employee’s limitations . . . . [¶] . . . The
employee, of course, retains a duty to cooperate with the
employer’s efforts by explaining [his or] her disability and
qualifications. [Citation.] Reasonable accommodation thus
envisions an exchange between employer and employee where
each seeks and shares information to achieve the best match
between the [employee’s] capabilities and available positions.”
[Citation.]’ ” (Raine v. City of Burbank (2006) 135 Cal.App.4th
1215, 1222.) “ ‘ “ ‘[T]he employee can’t expect the employer to
read his mind and know he secretly wanted a particular
accommodation and sue the employer for not providing it.’ ” ’ ”
(Featherstone v. Southern California Permanente Medical Group
(2017) 10 Cal.App.5th 1150, 1167.)
“While a claim of failure to accommodate [under
subdivision (m)] is independent of a cause of action for failure to
engage in an interactive dialogue [under subdivision (n)], each

25
necessarily implicates the other.” (Gelfo v. Lockheed Martin Corp.
(2006) 140 Cal.App.4th 34, 54.) “Although it is the employee’s
burden to initiate the process, no magic words are necessary, and
the obligation arises once the employer becomes aware of the
need to consider an accommodation. Each party must participate
in good faith, undertake reasonable efforts to communicate its
concerns, and make available to the other information which is
available, or more accessible, to one party. Liability hinges on the
objective circumstances surrounding the parties’ breakdown in
communication, and responsibility for the breakdown lies with
the party who fails to participate in good faith.” (Id. at p. 62, fn.
22.)
Martinez argues that she was disabled by pregnancy when
she was terminated and that L.A. Hardwood was therefore
required to make reasonable accommodation for her and engage
in a good faith interactive process, which it failed to do by
refusing to allow her to take full days off for her prenatal
appointments. Defendants contend that Martinez’s claims for
failure to accommodate and to engage in a good faith interactive
process fail as a matter of law because Martinez did not have a
disability under the FEHA and because she received every
accommodation that she requested. We agree with both of
defendants’ contentions.
“A woman is ‘disabled by pregnancy’ if, in the opinion of her
health care provider, she is unable because of pregnancy to
perform any one or more of the essential functions of her job or to
perform any of these functions without undue risk to herself, to
her pregnancy’s successful completion, or to other persons. An
employee also may be considered to be disabled by pregnancy if,
in the opinion of her health care provider, she is suffering from

26
severe morning sickness or needs to take time off for: prenatal or
postnatal care . . . .” (Cal. Code Regs., tit. 2, § 11035, subd. (f).) In
its summary judgment briefing, L.A. Hardwood argued that there
was no evidence to support that Martinez was unable to perform
the essential functions of her position due to her pregnancy and
the trial court agreed. Martinez now contends that she was
disabled under subdivision (f) because she needed to take time off
for prenatal care.
Even if Martinez did not waive this claim by failing to raise
it in her briefing below, she does not cite any evidence suggesting
that a doctor instructed her to take time off for prenatal care. At
most, the record supports that Martinez left work early or came
late to attend her monthly prenatal appointments. She does not
cite any authority supporting that an employee whose prenatal
appointments cause her to occasionally take some time off work
is disabled under subdivision (f). Thus, Martinez has failed as a
matter of law to establish that she was disabled.
Moreover, even if Martinez had established that she was
disabled under the FEHA after her pregnancy was confirmed by
a health care provider,7 Martinez testified that she did not
request any accommodation other than taking time off work (i.e.,
coming in late or leaving early) to attend doctor’s appointments.

7Martinez fails to explain how she could be disabled by pregnancy
under the provision on which she relies—which requires that a health
care provider render the opinion that she needs time off for prenatal
care—before any health care provider had even confirmed that she was
pregnant. (Cal. Code Regs., tit. 2, § 11035, subd. (f).) Thus, even if we
are willing to assume for the sake of argument that Martinez was
disabled by her pregnancy, we will not indulge the assumption that
she was disabled before her pregnancy was confirmed.

27
She further testified that she was able to eventually obtain all
the care that she sought. Martinez’s unsupported contention that
Chavez failed to accommodate her by letting her take the full day
off for prenatal appointments is contradicted by her own
testimony, which stated that the only accommodation she
requested was coming late or leaving early, not missing work
entirely. In the absence of any evidence that Martinez required or
sought any other accommodation for her pregnancy, there is no
triable issue of material fact as to whether L.A. Hardwood failed
to meet any duty it had to accommodate or to engage in an
interactive process.
1.4. The court properly granted summary
adjudication on the harassment cause of action.
The FEHA prohibits an employer from harassing an
employee “because of . . . physical disability . . . sex, [or]
gender . . . .” (§ 12940, subd. (j)(1).) A supervisor may also be
subject to personal liability for harassment. (§ 12940, subd. (j)(3).)
Martinez brings a harassment claim against both L.A. Hardwood
and Chavez. A harassment claim “requires a showing ‘ “that the
conduct complained of was severe enough or sufficiently
pervasive to alter the conditions of employment and create a
work environment that qualifies as hostile or abusive to
employees because of their [disability, sex, or gender].” ’
[Citation.] . . . Since ‘there is no possible justification for
harassment in the workplace,’ an employer cannot offer a
legitimate nondiscriminatory reason for it. [Citation.]” (Cornell v.
Berkeley Tennis Club (2017) 18 Cal.App.5th 908, 927.) Unlike
discrimination claims, “harassment often does not involve any
official exercise of delegated power on behalf of the employer,”
but instead “focuses on situations in which the social environment

28
of the workplace becomes intolerable because the harassment
(whether verbal, physical, or visual) communicates an offensive
message to the harassed employee.” (Roby v. McKesson Corp.
(2009) 47 Cal.4th 686, 706 (Roby).) In other words, “harassment
is generally concerned with the message conveyed to an
employee, and therefore with the social environment of the
workplace, whereas discrimination is concerned with explicit
changes in the terms or conditions of employment.” (Id. at
p. 708.)
“[H]arassment consists of conduct outside the scope of
necessary job performance, conduct presumably engaged in for
personal gratification, because of meanness or bigotry, or for
other personal motives. Harassment is not conduct of a type
necessary for management of the employer’s business or
performance of the supervisory employee’s job.” (Janken v. GM
Hughes Electronics (1996) 46 Cal.App.4th 55, 63.) “[T]he
Legislature intended that commonly necessary personnel
management actions such as hiring and firing, job or project
assignments, office or work station assignments, promotion or
demotion, performance evaluations, the provision of support, the
assignment or nonassignment of supervisory functions, deciding
who will and who will not attend meetings, deciding who will be
laid off, and the like, do not come within the meaning of
harassment.” (Id. at pp. 64–65.) Although a supervisor’s official
employment actions can provide the evidentiary basis for a
hostile work environment gender harassment claim under certain
limited circumstances, the key is showing that the actions had
the “secondary effect of communicating a hostile message.” (Roby,
supra, 47 Cal.4th at p. 709.) “This occurs when the actions
establish a widespread pattern of bias.” (Ibid.)

29
 “Whether the harassment is sufficiently severe or pervasive
to create a hostile work environment ‘must be assessed from the
“perspective of a reasonable person belonging to [the same
protected class as] the plaintiff.” ’ [Citation.] In making this
assessment, we consider several factors, including ‘ “the
frequency of the discriminatory conduct; its severity; whether it is
physically threatening or humiliating, or a mere offensive
utterance; and whether it unreasonably interferes with an
employee’s work performance.” ’ ” (Cornell v. Berkeley Tennis
Club, supra, 18 Cal.App.5th at p. 940.)
The record demonstrates that the only comments that
Chavez made in connection with Martinez’s pregnancy that she
found offensive were the comments made on April 3. After that
date, neither Chavez nor anyone else at L.A. Hardwood
commented on her pregnancy in a manner that Martinez found
offensive or negative. The only other comment that Chavez made
that Martinez found offensive was when he told her she was
doing more talking than working. This is “conduct of a type
necessary for management of the employer’s business or
performance of the supervisory employee’s job” and thus is not
actionable as harassment. (Janken, supra, 46 Cal.App.4th at p.
63.)
Martinez contends that a single incident of harassment
may be sufficient to create a hostile work environment. This is
true “if the harassing conduct has unreasonably interfered with
the plaintiff’s work performance or created an intimidating,
hostile, or offensive working environment.” (§ 12923, subd. (b).)
Conduct interferes with an employee’s work performance if it
results in the loss of a tangible job benefit or if the plaintiff
satisfies the “ ‘ “commensurately higher showing” ’ ” that the

30
conduct “ ‘ “was pervasive and destructive of the working
environment.” ’ ” (Lyle v. Warner Brothers Television Productions
(2006) 38 Cal.4th 264, 284.)
Martinez contends that whether Chavez’s conduct rises to
this level is necessarily a question of fact. However, the cases she
cites in support of this proposition did not involve an isolated
comment by the supervisor. In Ortiz v. Dameron Hospital
Association (2019) 37 Cal.App.5th 568, 582–583, the court held
that there was sufficient evidence of severe and pervasive
harassment where the “complained of conduct [by the supervisor]
. . . included involuntarily transferring [plaintiff] to a unit where
she had little or no experience without providing her with any
training, and falsely accusing her of sleeping on the job, a
terminable offense,” as well as repeated comments by the
supervisor that Filipino unit coordinators like the plaintiff were
“stupid,” “too old,” “dummies,” and “didn’t speak English.” In
Caldera v. Department of Corrections & Rehabilitation (2018) 25
Cal.App.5th 31, 43, which was not a summary judgment case, the
court concluded that sufficient evidence supported the jury’s
determination of harassment where the employee was mocked for
his stutter approximately 12 times over two years, including over
the prison radio system and in front of a group of other
employees. And in Miller v. Department of Corrections (2005) 36
Cal.4th 446, 468, the court held that summary judgment was
improper where the chief deputy warden of the prison at which
plaintiffs worked was having an affair with an employee who
subjected the plaintiffs to harassment with impunity, including
“loss of work responsibilities, demeaning comments in the
presence of other employees, loss of entitlement to a pay
enhancement and to disability accommodation, and physical

31
assault and false imprisonment.” Thus, these cases bear little
resemblance to the insensitive, but not overtly abusive or
derogatory, comments made by Chavez on April 3.
Rather, the circumstances here are comparable to Holmes
v. Petrovich Development Co., LLC (2011) 191 Cal.App.4th 1047
(Holmes). In Holmes, the plaintiff revealed that she was pregnant
a month after she was hired as an executive assistant and told
her employer she planned to work up until her due date and
would be out on maternity leave for six weeks. (Id. at p. 1052.)
The plaintiff disliked when other employees asked about her
maternity leave and asked them to stop, which they did. (Id. at
p. 1053.) A month after she revealed her pregnancy, the employer
emailed the plaintiff about getting another person up to speed on
covering her tasks. (Ibid.) She informed him that she would be
taking her maternity leave earlier than previously discussed and
might be out for the full four months permitted under California
law. (Ibid.) The employer responded, “ ‘I need some honesty. How
pregnant were you when you interviewed with me and what
happened to six weeks? . . . That is an extreme hardship on me,
my business and everybody else in the company. You have rights
for sure and I am not going to do anything to violate any laws,
but I feel taken advantage of and deceived for sure.’ ” (Ibid.)
The court concluded that “[a]n evaluation of all the
circumstances surrounding [plaintiff’s] employment discloses an
absence of evidence from which a reasonable jury could
objectively find that [the employer] created a hostile work
environment for a reasonable pregnant woman. During the two
months [the plaintiff] worked for [the employer], there was no
severe misconduct or pervasive pattern of harassment.” (Holmes,
supra, 191 Cal.App.4th at p. 1060.) The court noted that other

32
employees ceased to ask questions about the plaintiff’s maternity
leave when asked. (Ibid.) With respect to the emails from her
employer, the court concluded that, “[w]hen viewed in context,
the e-mails . . . show nothing more than that [the employer] made
some critical comments due to the stress of being a small
business owner who must accommodate a pregnant woman’s
right to maternity leave. He recognized [the plaintiff’s] legal
rights, stated he would honor them, said he was not asking for
her resignation, noted he had been pleased with her work, and
simply expressed his feelings as a ‘human in a tough business
where people are constantly trying to take advantage of me.’ He
assured [the plaintiff] that ‘it will work.’ ” (Id. at pp. 1060–1061.)
The court observed that the FEHA is not “a civility code” and that
“[t]he isolated incidents to which she points are objectively
insufficient.” (Id. at p. 1061.) The court acknowledged that
pervasive conduct is not required where the harassment is
sufficiently severe but concluded that the circumstances before it
did not rise to that level. (Ibid.)
Chavez similarly expressed frustration that Martinez “got
herself into this situation” and that he would have to train
another employee to cover for her while she was on maternity
leave. While these comments were offensive to Martinez, and
likely would be to the average pregnant woman, “merely
offensive” comments are not actionable. (Lyle v. Warner Brothers
Television Productions, supra, 38 Cal.4th at p. 283.) These
comments were not so humiliating that a reasonable pregnant
woman would consider her workplace significantly altered for the
worse or would have so feared hearing another such remark
about her pregnancy that she would be unable to perform her job

33
duties. Chavez made no other inappropriate comments relating to
Martinez’s pregnancy, sex, or gender.
Martinez also contends that the trial court erred in
focusing only on Chavez’s comments and by not considering the
incident with the cash box. There is no dispute that her cashbox
was $150 short of the amount required by L.A. Hardwood’s
policies. It is also undisputed that Chavez did not state that he
was issuing a written warning about the missing money because
of Martinez’s pregnancy. Issuing a written warning for
noncompliance with company policy was a managerial action that
does not constitute harassment. Martinez argues that this
discipline constitutes harassment because Chavez required her to
put in $150 of her own money to cover the missing amount. Once
again, Martinez does not include any record citations in support
of this assertion but instead refers to a prior argument section.
As we have stated, the failure to identify relevant evidence in
support of a claim at the point at which the claim is made results
in waiver.
Even if we were to consider the issue, evidence of a single,
improper employment action is objectively not evidence of a
“widespread pattern of bias,” which our Supreme Court has
stated is necessary to show that official employment actions could
have contributed to the hostile message the supervisor was
expressing to the employee “in other, more explicit ways.” (Roby,
supra, 47 Cal.4th at p. 709.)8

8 Roby bears little resemblance to the circumstances present here. The
court in Roby observed that the supervisor’s “shunning of [the plaintiff]
during staff meetings,” “belittling of [the plaintiff’s] job,” and
“reprimands of [the plaintiff] in front of [her] coworkers” may have
been “official employment actions done in furtherance of a supervisor’s

34
 Thus, we conclude that the record reflects an absence of
evidence from which a reasonable jury could find that Chavez
created a hostile work environment “for a reasonable pregnant
woman.” (Holmes, supra, 191 Cal.App.4th at p. 1060.)
1.5. The court properly granted summary
adjudication of Martinez’s derivative causes of
action.
Section 12940, subdivision (k) provides that it is an
unlawful employment practice “[f]or an employer . . . to fail to
take all reasonable steps necessary to prevent discrimination and
harassment from occurring.” In order to maintain a claim for
failure to prevent discrimination, harassment, or retaliation,
there must have been an act of discrimination, harassment, or
retaliation. “ ‘[T]here’s no logic that says an employee who has
not been discriminated against can sue an employer for not
preventing discrimination that didn’t happen, for not having a
policy to prevent discrimination when no discrimination
occurred . . . .’ Employers should not be held liable to employees
for failure to take necessary steps to prevent such conduct, except

managerial role” but also had “a secondary effect of communicating a
hostile message.” (Roby, supra, 47 Cal.4th at p. 709.) The supervisor
also “made negative comments in front of other workers about
[plaintiff’s] body odor” which was caused by medication, “called
[plaintiff] ‘disgusting’ because of the sores on her arms and her
excessive sweating,” “openly ostracized plaintiff in the office, refusing
to respond to [her] greetings and turning away when [she] tried to ask
questions,” “made a facial expression of disapproval when [plaintiff]
took rest breaks,” and “overlooked [plaintiff] when handing out
specialty food items, holiday gifts, and travel trinkets, although [the
supervisor] regularly gave these small gifts to the other employees on
her staff.” (Id. at pp. 695, 709.)

35
where the actions took place and were not prevented.” (Trujillo v.
North County Transit Dist. (1998) 63 Cal.App.4th 280, 289; see
also Featherstone v. Southern California Permanente Medical
Group, supra, 10 Cal.App.5th at p. 1166.)
Because Martinez cannot establish the underlying causes of
action, her derivative claims for failure to prevent discrimination,
retaliation and harassment must also fail.9
1.6. Martinez waived any challenge of her meal and
rest break claims.
Martinez devotes only two sentences of her opening brief to
her assertion that the trial court erred in granting summary
judgment of her meal and rest break causes of action. She makes
no citation to the record, but merely refers to a section of her
statement of facts. (Alki Partners, LP v. DB Fund Services, LLC,
supra, 4 Cal.App.5th at p. 590, fn. 8.) Further, Martinez does not
develop her claim by citing or applying any legal authorities,
apart from a passing reference to Brinker Restaurant Corp. v.
Superior Court (2012) 53 Cal.4th 1004. “Appealed judgments and
orders are presumed correct, and error must be affirmatively
shown.” (Hernandez v. California Hospital Medical Center (2000)
78 Cal.App.4th 498, 502; Arnold v. Dignity Health (2020) 53
Cal.App.5th 412, 423 [“plaintiff bears the burden of establishing
error on appeal, even though defendants had the burden of
proving their right to summary judgment before the trial court”].)
Thus, Martinez waived her challenge as to these causes of action.

9 Martinez does not address her cause of action for wrongful
termination in violation of public policy.

36
 1.7. There is no basis for an award of punitive
damages.
“[W]here it is proven by clear and convincing evidence that
the defendant has been guilty of oppression, fraud, or malice, the
plaintiff, in addition to the actual damages, may recover damages
for the sake of example and by way of punishing the defendant.”
(Civ. Code, § 3294, subd. (a).) “An employer shall not be liable for
damages pursuant to subdivision (a), based upon acts of an
employee of the employer, unless the employer had advance
knowledge of the unfitness of the employee and employed him or
her with a conscious disregard of the rights or safety of others or
authorized or ratified the wrongful conduct for which the
damages are awarded or was personally guilty of oppression,
fraud, or malice. With respect to a corporate employer, the
advance knowledge and conscious disregard, authorization,
ratification or act of oppression, fraud, or malice must be on the
part of an officer, director, or managing agent of the corporation.”
(Id., subd. (b).) “ ‘[S]ummary judgment “on the issue of punitive
damages is proper” only “when no reasonable jury could find the
plaintiff’s evidence to be clear and convincing proof of malice,
fraud or oppression.” [Citation.]’ ” (Johnson & Johnson v.
Superior Court (2011) 192 Cal.App.4th 757, 762.)
Martinez argues that a reasonable jury could find clear and
convincing proof of malice, fraud, or oppression based on Chavez’s
actions. Martinez further asserts that defendants’ “bare legal
conclusion that Chavez and Algazi were not officers or managing

37
agents” is insufficient to meet their burden on appeal,10 and
further argues that the owner of L.A. Hardwood, Doron Gal,
ratified Chavez’s conduct because Algazi spoke with him before
she terminated Martinez’s employment. We disagree.
“[T]o establish that an individual is a managing agent, a
plaintiff seeking punitive damages must show that ‘the employee
exercised substantial discretionary authority over significant
aspects of a corporation’s business.’ [Citation.] In this context,
‘corporate policy’ refers to ‘ “formal policies that affect a
substantial portion of the company and that are of the type likely
to come to the attention of corporate leadership.” ’ [Citations.]”
(CRST, Inc. v. Superior Court (2017) 11 Cal.App.5th 1255, 1273.)
Although Martinez argues that defendants failed to put
forth any evidence that Chavez was not a managing agent, she
“bears the burden of establishing error on appeal, even though
defendants had the burden of proving their right to summary
judgment before the trial court.” (Arnold v. Dignity Health, supra,
53 Cal.App.5th at p. 423.) Martinez does not identify any
substantial evidence that Chavez was an officer, director or
managing agent of L.A. Hardwood. Further, and contrary to her
assertion, defendants did more than assert the bare legal
conclusion that Chavez was not a managing agent. Chavez stated
in his declaration that he does not make and has never made
corporate policy for L.A. Hardwood and that his role is limited to
supervising employees that work in his location and ensuring
that customers receive the products and services they need. The

Notwithstanding this contention, it does not appear that L.A.
10

Hardwood has ever disputed that Algazi was an officer of L.A.
Hardwood.

38
owner of L.A. Hardwood submitted a declaration stating the
same. Martinez does not identify any evidence contradicting
these statements.
We further agree with defendants that Martinez’s
concession that Algazi did not hold any discriminatory or
retaliatory intent defeats her claim that a punitive damages
award could be based on Algazi’s decision to terminate Martinez’s
employment. Similarly, although Algazi testified that she told
Gal, the owner of L.A. Hardwood, about the fax incident and that
she was going to speak with Martinez, there is no evidence that
he expressed any opinion about the matter. Even if Gal endorsed
Algazi’s actions, it is undisputed that Algazi did not act in a
discriminatory manner. Accordingly, there are no triable issues of
material fact as to whether L.A. Hardwood is properly subject to
punitive damages.
2. The court’s evidentiary rulings do not require reversal.
Martinez contends that the court committed reversible
error with respect to its rulings on objections to her declaration
and the declaration of Carolina Juarez, who was a customer
service representative at the Pacoima location. We conclude that,
to the extent the court erred in its rulings, any errors were not
prejudicial and do not require reversal.
2.1. Standard of Review
Martinez contends that Pipitone v. Williams (2016) 244
Cal.App.4th 1437 and Reid v. Google, Inc. (2010) 50 Cal.4th 512,
among other cases, support that the de novo standard of review
should apply to the trial court’s evidentiary rulings on summary
judgment. In Reid, the Supreme Court applied the de novo
standard of review to evidentiary objections on which the trial

39
court had failed to rule, reasoning that “because there was no
exercise of trial court discretion, the Court of Appeal had no
occasion to determine whether the trial court abused it.” (Reid, at
p. 535.) The Supreme Court expressly declined to consider
“whether a trial court’s rulings on evidentiary objections based on
papers alone in summary judgment proceedings are reviewed for
abuse of discretion or reviewed de novo.” (Ibid.) “[T]he weight of
authority since Reid supports application of the abuse of
discretion standard. Cases considering this question and applying
the abuse of discretion standard after Reid have been published
by the First District, Second District, Third District, Fourth
District (Division One), Fifth District, and Sixth District— in
other words, essentially every district of the appellate courts of
the State of California . . . .” (Doe v. SoftwareONE, Inc. (2022) 85
Cal.App.5th 98, 103, fn. omitted; LAOSD Asbestos Cases (2020)
44 Cal.App.5th 475, 485 [“The weight of authority in this state is
that we apply an abuse of discretion standard when we review
trial court evidentiary rulings.”].)
As courts have observed, “application of the abuse of
discretion standard is eminently sensible in light of the practical
realities of evidentiary objections in summary judgment
proceedings.” (Doe v. SoftwareONE, Inc., supra, 85 Cal.App.5th
at p. 103; cf. Ducksworth v. Tri-Modal Distrib. Servs. (2020) 47
Cal.App.5th 532, 544, reversed on other grounds in Pollock v. Tri-
Modal Distribution Services, Inc. (2021) 11 Cal.5th 918.) Given
the large number of evidentiary objections that frequently
accompany summary judgment motions, “trial courts typically
rule on evidentiary objections in summary fashion, which often
prevents us from determining the precise nature (i.e., principally
legal or factual) of the trial court’s ruling. And rulings on

40
evidentiary objections often ‘involve trial courts making
qualitative and sometimes equitable determinations,’ which are
the sort of decisions we typically review for abuse of discretion.
[Citation.]” (Doe, at pp. 103–104; cf. Ducksworth, at p. 544
[“Because of the daunting complexity, volume, and pace of [the
trial court’s] decisionmaking task, the latitude implied by the
abuse-of-discretion standard thus does make ‘great sense.’
[Citation.]”].)
We will follow the weight of authority and apply the abuse
of discretion standard. Under this standard, “[a]n ‘erroneous
evidentiary ruling requires reversal only if “there is a reasonable
probability that a result more favorable to the appealing party
would have been reached in the absence of the error.” [Citation.]’
[Citation.]” (Daimler Trucks North America LLC v. Superior
Court (2022) 80 Cal.App.5th 946, 960.)
In addition to objecting to the Martinez declaration on
relevancy, foundation, and hearsay grounds, defendants objected
to substantial portions of her declaration on the grounds that it
was inconsistent with her deposition testimony, citing D’Amico v.
Board of Medical Examiners (1974) 11 Cal.3d 1 (D’Amico).
In D’Amico, our Supreme Court concluded that, “when
discovery has produced an admission or concession on the part of
the party opposing summary judgment which demonstrates that
there is no factual issue to be tried, certain of those stern
requirements applicable in a normal case are relaxed or altered
in their operation.” (D’Amico, supra, 11 Cal.3d at p. 21.) The
court observed that, in King v. Andersen (1966) 242 Cal.App.2d
606, “the rule providing for liberal construction of
counteraffidavits was held not to require reversal of a summary
judgment for defendants where the plaintiff in an assault case,

41
although having stated in his counteraffidavit that unnecessary
force was used, nevertheless had stated in a previous deposition
that no force was used.” (D’Amico, at p. 21.) It held that,
“ ‘[w]here . . . there is a clear and unequivocal admission by the
plaintiff, himself, in his deposition . . . we are forced to conclude
there is no substantial evidence of the existence of a triable issue
of fact.’ ” (Ibid., quoting King, at p. 610.) The Supreme Court also
cited Newport v. City of Los Angeles (1960) 184 Cal.App.2d 229, in
which the opposing party challenged an affidavit submitted by
the moving party on the ground that it contained facts not within
the personal knowledge of the moving party, and noted that the
affidavit was held to be sufficient where the moving party
incorporated therein verified admissions of the opposing party.
(D’Amico, at pp. 21–22, citing Newport, at p. 236.)
Thus, “[t]he D’Amico rule is about the evidentiary strength
of admissions by a party and applies ‘when discovery has
produced an admission or concession [by] the party opposing
summary judgment.’ [Citation.] Those admissions ‘have a very
high credibility value’ and ‘should receive a kind of deference not
normally accorded evidentiary allegations in affidavits.’
[Citation.]” (Forest Lawn Memorial-Park Association v. Superior
Court (2021) 70 Cal.App.5th 1, 13.) “In a nutshell, the [D’Amico]
rule bars a party opposing summary judgment from filing a
declaration that purports to impeach his or her own prior sworn
testimony.” (Scalf v. D. B. Log Homes, Inc. (2005) 128
Cal.App.4th 1510, 1522.) However, “[w]hile the D’Amico rule
permits a trial court to disregard declarations by a party which
contradict his or her own discovery responses (absent a
reasonable explanation for the discrepancy), it does not
countenance ignoring other credible evidence that contradicts or

42
explains that party’s answers or otherwise demonstrates there
are genuine issues of factual dispute.” (Id. at pp. 1524–1525.)
There is dispute as to the appropriate standard of review
with respect to rulings under D’Amico. In Harris v. Thomas Dee
Engineering Co., Inc. (2021) 68 Cal.App.5th 594, the court
concluded that “D’Amico does not state a rule regarding the
admissibility of evidence; instead, the case provides guidance in
determining whether a declaration that contradicts prior
discovery responses is sufficient to create a triable issue of fact.”
(Id. at p. 604, fns. omitted.) The court thus “disagree[d] with
statements in prior published cases that may be read to suggest
D’Amico states a rule regarding the admissibility of evidence.”
(Ibid., fn. 7.) Because the “ ‘[t]he existence of a triable issue of
fact is a legal question that we review de novo[]’ [citations],” the
court in Harris reviewed de novo the trial court’s conclusion that
a declaration was insufficient to establish a triable issue of fact
under D’Amico. (Ibid.) In contrast, in Mackey v. Trustees of
California State University (2019) 31 Cal.App.5th 640, the court
held the abuse of discretion standard of review applied to the
trial court’s rulings on ‘ “evidentiary objections” ’ under D’Amico.
(Id. at pp. 657, 659.) Without deciding which standard is correct,
we will review the court’s rulings on objections made on D’Amico
grounds under the de novo standard.
2.2. Martinez did not waive her ability to challenge
the court’s evidentiary rulings.
Before reaching the merits of the evidentiary objections, we
address defendants’ assertion that Martinez has waived her
contention that the trial court’s evidentiary rulings were an
abuse of discretion because she failed to respond to their
objections below. We reject this claim. “A party that objects to

43
evidence presented on a motion for summary judgment must
either timely file separate written objections or object orally at
the hearing. [Citations.] ‘Evidentiary objections not made at the
hearing shall be deemed waived.’ (§ 437c, subd. (b)(5).) But
neither section 437c nor the California Rules of Court require a
party to file written opposition to the opposing party’s objections
or risk waiver. [Citation.]” (Serri, supra, 226 Cal.App.4th at
p. 851, fn. 11; Jane IL Doe v. Brightstar Residential Inc. (2022) 76
Cal.App.5th 171, 176 [there is no rule that “extend[s] the
forfeiture rule to require the proponent of evidence at the
summary judgment stage to file written opposition to evidentiary
objections”]; Greenspan v. LADT LLC (2010) 191 Cal.App.4th
486, 526 [no authority suggests that responses to objections must
be made in the trial court to preserve a challenge to its rulings on
appeal].)
2.3. The court did not commit reversible error with
respect to its evidentiary rulings on the Martinez
declaration.
We conclude that there is no reasonable probability that a
result more favorable to Martinez would have been reached in
the absence of any errors committed by the trial court in its
evidentiary rulings. (Daimler Trucks North America LLC v.
Superior Court, supra, 80 Cal.App.5th at p. 960.)
Objections 1 through 3 concern Martinez’s discussion with
Chavez on April 3. Defendants argue that her declaration is
inconsistent with her deposition and thus was properly excluded
under D’Amico. They further point out that Martinez’s
statements in her declaration that she asked either to come in
late, leave early, or to take the day off to confirm her pregnancy
are inconsistent with her deposition testimony that she asked for

44
“at least a day off” to confirm her pregnancy. Martinez also stated
in her declaration that Chavez demanded that she confirm the
pregnancy, whereas Martinez testified that, when she informed
Chavez that the pregnancy was not confirmed, Chavez stated
that the home test might be mistaken and she responded that she
needed to have it confirmed.
We need not decide whether the court properly disregarded
this evidence under D’Amico. Even if the court had erred in its
rulings with respect to these objections, there is no reasonable
probability that Martinez would have obtained a more favorable
result had this evidence been admitted. The declaration
statements at issue were largely duplicative of her deposition
testimony, albeit with the minor inconsistencies discussed.
Moreover, and more importantly, there is no substantial evidence
to support that Martinez was disabled because of her pregnancy
before her pregnancy was confirmed by a health care provider.
Thus, even if her declaration further supports that Chavez did
not agree to allow Martinez to have her pregnancy confirmed
during work hours (a claim that was already in the record via
Martinez’s deposition testimony), Martinez would not have been
more likely to succeed on her claims for failure to accommodate or
to engage in a good faith interactive process.
We likewise find no reversible error with respect to
objections 4 and 5. Objection 4 pertained to Martinez’s statement
that Chavez was abrasive when she asked for time off to go to her
prenatal appointments and did not permit her to take the whole
day off for her appointments. Objection 5 addressed Martinez’s
statement describing her complaint to Palma regarding Chavez.
Martinez testified that, other than Chavez’s reaction to her
pregnancy on April 3, she had no issue with how he treated her in

45
relation to her pregnancy. Martinez also testified that the reason
that she did not like working with Chavez after she revealed her
pregnancy was solely because of his reaction to her pregnancy on
April 3 and that she complained about that reaction to Palma.
We conclude that Martinez’s statements in her declaration that
Chavez was abrasive after April 3 and she complained to Palma
about his abrasiveness directly contradict her deposition
testimony, and thus were properly disregarded under D’Amico.
Moreover, even if the court erred in disregarding evidence that
Chavez was abrasive, Martinez’s deposition testimony establishes
that she did not find this conduct to be “ ‘subjectively offensive’ ”
as is required for conduct to be actionable harassment. (Hughes v.
Pair (2009) 46 Cal.4th 1035, 1044.) Apart from her claim that
Chavez was abrasive and rude after April 3, the declaration
statements addressed by these objections are duplicative of
deposition testimony that was admitted. Thus, it is not
reasonably probable that the outcome would have been different
had this testimony been considered.
Objections 6 and 7 addressed Martinez’s claim that Chavez
was rude towards her and yelled at her for going to Palma with
her issues. As discussed, according to her deposition testimony,
the only comments regarding her pregnancy that Martinez found
offensive were those made April 3. When asked whether she was
offended by Chavez’s conduct in any other way, Martinez
identified his statement on one occasion that she was doing more
talking than working to be offensive, but testified that Chavez
did not say anything else to her that she found upsetting or
disliked. Thus, we conclude that Martinez’s claim that Chavez
snapped and yelled at her and that she cried on another occasion

46
directly contradicts her deposition testimony, and that the trial
court did not err in disregarding this evidence under D’Amico.
Objection 8 addressed Martinez’s statement that she asked
Chavez for a transfer to the Pacoima location and he denied it.
L.A. Hardwood argues that the court properly disregarded this
evidence because Martinez unequivocally testified that she did
not request a transfer to Pacoima. We agree that these claims are
contradictory and mutually exclusive under D’Amico. Martinez
argues that testimony from Chavez and Algazi supports that
Martinez did at some point inquire about a transfer, but that
there were no positions open in Pacoima. Algazi recalled that
Martinez’s request for a transfer was in response to an issue that
arose between Martinez and another coworker who had claimed
to be sick but whom Martinez saw posting about a vacation to
Mexico. Even if we assume the court erred in disregarding this
evidence because there is other evidence in the record that
supports that Martinez at some point sought a transfer, we see
no reasonable probability that Martinez would have obtained a
better outcome had this evidence been considered. Other evidence
in the record supported that Martinez was not happy with
Chavez as a manager after his reaction to her pregnancy.
Objection 9 concerned Martinez’s statement that when her
cash box was found to be $150 short, she was told to put her own
money in to make it whole, which she was not required to do
under company policy. Even if the court erred in excluding this
evidence, it was cumulative of evidence already before the court.
In deposition testimony relied upon in her separate statement of
material facts, Martinez stated that she had told Chavez, “I told
you that the money was missing, and you told me to put it back.
So even after you made me put it back out of my own pocket, you

47
are still going to write me up for a warning for it.” Similarly, in
her separate statement of material facts, Martinez relied on
deposition testimony from Algazi in which Algazi stated that she
thought she recalled that Martinez had paid the money out of her
own pocket and that they remedied that issue when they
terminated her employment, and that it was company policy that
Martinez was not responsible for that money. Thus, there is no
reasonable probability that a result more favorable to Martinez
would have been reached in the absence of the error.
Objection 10 concerned Martinez’s description in her
declaration of the meeting in which she was terminated, which
was almost entirely duplicative of the version of events set forth
in her deposition testimony, except for her claim that Chavez
spoke during the meeting, when she previously testified that he
said nothing. The court properly disregarded the portion of this
statement that directly contradicted Martinez’s deposition
testimony. The remainder of the statement was cumulative of
other evidence, and thus there is no reasonable likelihood that
the declaration statement would have altered the outcome.
Objection 11 addressed Martinez’s claim in her declaration
that she did not destroy any application that was legible and not
a duplicate, while Objection 12 addressed Martinez’s statement
that she never saw Reyes or Arreola look in her trash can or
remove documents from it. To the extent that either objection
was improperly granted, the error was harmless. As we have
stated, the issue in this case is not whether L.A. Hardwood’s
decision to terminate Martinez’s employment was wise or correct,
but whether the decision was discriminatory. (Guz, supra, 24
Cal.4th at p. 358.) Thus, it is not probable that this evidence
would have resulted in a more favorable outcome for Martinez.

48
Moreover, Martinez also testified that she had never crumpled or
thrown away an application that was legible.
Objection 14 concerned Martinez’s statements that she was
unable to take rest breaks. We agree with defendants that
Martinez’s statement in her declaration that Chavez, through
Chavarria, told the customer service representatives that they
could not take their rest breaks directly contradicts Martinez’s
deposition testimony and was properly disregarded under
D’Amico. Martinez testified that no one ever told her she could
not take her rest breaks, but she felt that she had to because
Chavarria would say so. When expressly asked who told her that
she had to keep working, Martinez stated it was Chavarria, not
Chavez. Although the remainder of the evidence subject to this
objection was not inconsistent with her prior deposition
testimony, we conclude that any error in excluding this evidence
was harmless because it was cumulative of other evidence before
the court.
Finally, with respect to objections 15 and 16, which pertain
to Martinez’s claim that she suffered emotional and mental
injuries and lost wages, we agree with defendants that any error
in excluding this evidence was not prejudicial because it did not
go to the merits of her claims, but to the question of damages.
2.4. The court did not commit reversible error with
respect to its evidentiary rulings on the Juarez
declaration.
We conclude that the court did not abuse its discretion in
excluding statements made in the Juarez declaration. Juarez
stated that she “became aware” or understood various facts
relating to Martinez’s employment and the treatment of
employees in the downtown Los Angeles office, despite not

49
working in that office. She also stated that she “became aware”
that a driver for L.A. Hardwood was injured on the job and that
Chavez told him that he should tell a doctor that he was injured
on his own time. Juarez did not explain the basis for this
knowledge in her declaration, but her deposition testimony
confirms that it was based on discussions with other people, not
her personal observations. The trial court did not abuse its
discretion in excluding this evidence. (See People v. Montoya
(2007) 149 Cal.App.4th 1139, 1150 [“[t]o testify, a witness must
have personal knowledge of the subject of the testimony”]; Evid.
Code, § 702, subd. (a) [“Subject to Section 801 [expert testimony],
the testimony of a witness concerning a particular matter is
inadmissible unless he has personal knowledge of the matter.”].)
Juarez further stated that employees with which she spoke
stated that they thought that Martinez’s employment was
terminated because of her pregnancy. Statements “made other
than by a witness while testifying at the hearing” and “offered to
prove the truth of the matter stated” are hearsay and, “except as
provided by law,” are inadmissible. (Evid. Code, § 1200, subds.
(a), (b).) Martinez does not argue that any hearsay exception
applied to these statements.
According to her deposition testimony, Juarez’s statement
in her declaration that employees regularly ripped up illegible
and duplicate applications was based solely on her experience at
the Pacoima location. In any event, the court did not abuse its
discretion in concluding that it is irrelevant to the issue of
whether Martinez’s termination for purportedly destroying an
original and legible application and failing to provide any
explanation was pretextual. Similarly, her statement that L.A.
Hardwood employees were unable to take rest breaks was based

50
solely on her experience in the Pacoima office. The court could
reasonably conclude that this evidence was irrelevant to the issue
of whether Martinez was able to take breaks in the downtown
Los Angeles office. Finally, the court’s exclusion of Juarez’s
statement that another pregnant employee had been terminated
at the Pacoima location on relevancy grounds was not
unreasonable. Juarez did not discuss the circumstances of that
employee’s termination in her declaration but testified that she
did not know whether the employee had done anything wrong.

51
 DISPOSITION

The judgment is affirmed. Plaintiff and appellant Melissa
Martinez’s request for judicial notice, filed June 22, 2022, is
denied. Respondents and defendants L.A. Hardwood Flooring,
Inc. and Ray Chavez shall recover their costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

LAVIN, Acting P. J.
WE CONCUR:

EGERTON, J.

BENKE, J.*

* Retired Associate Justice of the Court of Appeal, Fourth Appellate
District, assigned by the Chief Justice pursuant to article VI, section 6
of the California Constitution.

52