Kuang v. Bel Air Mart

Filing 43

ORDER signed by District Judge John A. Mendez on 9/6/2016 GRANTING 28 MOTION for SUMMARY JUDGMENT. CASE CLOSED. (Jackson, T)

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A PROFESSIONAL CORPORATION
Lindsay A. Goulding, SBN 227195
Colleen R. Howard, SBN 257661
Derek J. Haynes, SBN 264621
350 University Avenue, Suite 200
Sacramento, California 95825
TEL: [phone]
FAX: [phone]

Attorneys for Defendant BEL AIR MART

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA

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JIMMY KUANG, an individual,

PORTER | SCOTT

350 University Avenue, Suite 200
Sacramento, CA 95825
TEL: [phone]
FAX: [phone]

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Civil Action No.: 2:15-CV-00160-JAM-EFB
ORDER ON DEFENDANT’S MOTION
FOR SUMMARY JUDGMENT OR, IN
THE
ALTERNATIVE,
SUMMARY
ADJUDICATION

Plaintiff,
v.

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BEL AIR MART; a California Corporation;
and DOES 1 through 50, inclusive,

Complaint Filed: January 20, 2015

Defendant.
____________________________________/

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Defendant BEL AIR MART filed a Motion for Summary Judgment or, in the alternative

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Summary Adjudication. The hearing on the Motion was held on August 23, 2016. Derek Haynes

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appeared for Defendant. David Tashroudian and Mona Tashroudian appeared for Plaintiff

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JIMMY KUANG. After considering the papers and arguments offered by all parties and for the

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reasons set forth below, Defendant’s Motion is hereby GRANTED.
BACKGROUND

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A.

Conduct that Led to Plaintiff’s Termination

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The undisputed evidence is that Plaintiff was employed by Defendant as a cook in the Hot

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Wok Department. He was also a member of the United Food and Commercial Workers Union

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(“Union”) and, as such, both he and Defendant were parties to a Collective Bargaining Agreement

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(“CBA”). Under the CBA, Defendant could only terminate employees for “just cause.”

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[PROPOSED] ORDER ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT OR, IN THE
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In April 2011, Plaintiff, while on the clock, entered the store, took a package of cough

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drops off of the shelf and began consuming them without paying for them. He then took the rest

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of the opened package back to his work station in the Hot Wok Department and placed it behind

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the counter.

observed that footage. Plaintiff was then brought back to the security office in the store, where he

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admitted to taking the cough drops. He also admitted to taking other merchandise to the back

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room of the Hot Wok Department before paying for it on several prior occasions. Plaintiff was

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then terminated. Defendant’s reason for the termination was because Plaintiff’s behavior violated

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the company’s Employee Purchase Policy, which prohibits employees from consuming

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PORTER | SCOTT

Plaintiff’s actions were captured on store security footage. Store Director Milo Crisp

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350 University Avenue, Suite 200
Sacramento, CA 95825
TEL: [phone]
FAX: [phone]

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merchandise in the store before paying for it and prohibits them from selecting merchandise and

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then setting it aside to pay for it later.

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B.

The Collective Bargaining Agreement

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The CBA governing Plaintiff’s employment includes procedures for employees to file

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grievances relating to any termination decision. The Union filed such a grievance on Plaintiff’s

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behalf, challenging whether Defendant had “just cause” to terminate Plaintiff’s employment. In

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May 2011, the grievance went before what the CBA refers to as the Board of Adjustment. The

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Board deadlocked and did not reach a decision. The Union subsequently concluded that

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Defendant did in fact have “just cause” to terminate Plaintiff’s employment under the CBA. As a

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result, the Union decided not to take Plaintiff’s grievance to arbitration, which is the next step of

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the grievance process provided under the CBA. The Union sent letters to Plaintiff and Defendant

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indicating that the Union was denying Plaintiff’s grievance and that the termination would stand

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as issued.

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C.

Procedural History

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Plaintiff then filed suit against Defendant in state court in April 2012 alleging breach of

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contract and discrimination claims. Plaintiff voluntarily dismissed his discrimination claims, and

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the state court dismissed the contract claim on grounds that it is preempted by Section 301 of the

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Federal Labor Management Relations Act (“LMRA”).
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[PROPOSED] ORDER ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT OR, IN THE
ALTERNATIVE, SUMMARY ADJUDICATION

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Plaintiff then filed the instant action in January 2015 asserting claims for breach of

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contract and breach of the implied covenant of good faith and fair dealing, both based on the

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allegation that Defendant breached the CBA by terminating his employment without “just cause.”

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Defendant moved for summary judgment on both claims. In his Opposition and on the record at

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the hearing, Plaintiff conceded he is no longer pursuing his claim for breach of the implied

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covenant of good faith and fair dealing. Therefore, the Court grants summary judgment of that

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claim in Defendant’s favor. The only remaining issue is whether summary judgment should be

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granted on Plaintiff’s remaining breach of contract claim.

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STANDARD

PORTER | SCOTT

The Federal Rules of Civil Procedure provide for summary judgment when “the pleadings,

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350 University Avenue, Suite 200
Sacramento, CA 95825
TEL: [phone]
FAX: [phone]

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depositions, answers to interrogatories, and admissions on file, together with affidavits, if any,

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show that there is no genuine issue as to any material fact and that the moving party is entitled to

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a judgment as a matter of law.” Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322

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(1986). One of the principal purposes of Rule 56 is to dispose of factually unsupported claims or

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defenses. Celotex, 477 U.S. at 325.

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In a summary judgment motion, the moving party always bears the initial responsibility of

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informing the court of the basis for the motion and identifying the portions in the record “which it

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believes demonstrate the absence of a genuine issue of material fact.” Celotex, 477 U.S. at 323. If

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the moving party meets its initial responsibility, the burden then shifts to the opposing party to

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establish that a genuine issue as to any material fact actually does exist. Matsushita Elec. Indus.

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Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87 (1986); First Nat'l Bank v. Cities Serv. Co., 391

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U.S. 253, 288–89 (1968).

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In attempting to establish the existence or non-existence of a genuine factual dispute, the

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party must support its assertion by “citing to particular parts of materials in the record, including

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depositions, documents, electronically stored information, affidavits[,] or declarations ... or other

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materials; or showing that the materials cited do not establish the absence or presence of a

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genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.”

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Fed. R. Civ. P. 56(c) (1). The opposing party must demonstrate that the fact in contention is
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material, i.e., a fact that might affect the outcome of the suit under the governing law. Anderson v.

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Liberty Lobby, Inc., 477 U.S. 242, 248, 251–52 (1986); Owens v. Local No. 169, Assoc. of W.

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Pulp and Paper Workers, 971 F.2d 347, 355 (9th Cir. 1987).

‘genuine,’ that is, if the evidence is such that a reasonable jury could return a verdict for the

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nonmoving party.” Id. at 248. In other words, the judge needs to answer the preliminary question

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before the evidence is left to the jury of “not whether there is literally no evidence, but whether

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there is any upon which a jury could properly proceed to find a verdict for the party producing it,

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upon whom the onus of proof is imposed.” Id. at 251 (quoting Improvement Co. v. Munson, 14

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Wall. 442, 81 U.S. 442, 448, (1871)). As the Supreme Court explained, “[w]hen the moving party

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PORTER | SCOTT

The opposing party must also demonstrate that the dispute about a material fact “is

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350 University Avenue, Suite 200
Sacramento, CA 95825
TEL: [phone]
FAX: [phone]

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has carried its burden under Rule [56(a)], its opponent must do more than simply show that there

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is some metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 586. Therefore,

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“[w]here the record taken as a whole could not lead a rational trier of fact to find for the

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nonmoving party, there is no ‘genuine issue for trial.’” Id.

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In resolving a summary judgment motion, the evidence of the opposing party is to be

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believed, and all reasonable inferences that may be drawn from the facts placed before the court

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must be drawn in favor of the opposing party. Anderson, 477 U.S. at 255. Nevertheless,

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inferences are not drawn out of the air, and it is the opposing party's obligation to produce a

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factual predicate from which the inference may be drawn. Richards v. Nielsen Freight Lines, 602

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F. Supp. 1224, 1244–45 (E.D. Cal. 1985), aff'd, 810 F.2d 898 (9th Cir.1987).

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ANALYSIS
A.

Evidentiary Objections
Defendant raised a series of objections to the evidence Plaintiff offered in Opposition to

the Motion for Summary Judgment. [Docket No. 36-3.]

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Defendant objected to Plaintiff’s Declaration and the documents attached thereto in their

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entirety on grounds that the Declaration is submitted and executed in English even though the text

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of the Declaration states that Plaintiff does not understand and cannot read English. Plaintiff

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attempts to avoid that issue by stating that some unidentified translator read the Declaration to
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[PROPOSED] ORDER ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT OR, IN THE
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him. That is insufficient. Any translation must be completed by a certified federal interpreter. 28

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U.S.C. § 1827(d)(1); Jack v. Trans World Airlines, 854 F. Supp. 654, 659 (N.D. Cal. 1994).

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Therefore, Defendant’s objection to Plaintiff’s Declaration and the documents attached thereto is

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sustained.

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Defendant objected to the Declaration offered by Plaintiff’s counsel and the documents

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attached thereto as Exhibits 5(a), 5(b), 5(c), 5(d) and 5(e) on grounds that Plaintiff’s counsel lacks

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the requisite personal knowledge to authenticate or lay the foundation for those documents. The

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Court agrees with Defendant’s argument and sustains the objection on those grounds. Clark v.

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County of Tulare, 755 F. Supp. 2d 1075, 1083-1084 (E.D. Cal. 2010).

PORTER | SCOTT

Defendant objected to the Report Plaintiff offered from Brian Kleiner in its entirety on

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350 University Avenue, Suite 200
Sacramento, CA 95825
TEL: [phone]
FAX: [phone]

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several grounds. The Court hereby sustains those objections. The Report is unsworn and is

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therefore inadmissible in its entirety. Kelly v. Echols, 2008 U.S. Dist. LEXIS 79801, 14-15, n.9

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(E.D. Cal. Sept. 2, 2008) (“Unsworn expert reports . . . do not qualify as affidavits or otherwise

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admissible evidence for [the] purpose of Rule 56.”). Even if the Court nonetheless considered the

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Report, the opinions offered therein are inadmissible for the reasons stated in Defendant’s

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objections. Therefore, the Court hereby sustains all of Defendant’s objections to Plaintiff’s

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evidence.

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B.

Breach of Contract Claim

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Plaintiff pled his claim as one for “breach of contract.” That claim is preempted by Section

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301 of the LMRA. Board of Trustees of Sheet Metal Workers Local 104 Health Care Plan v. Bay

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Area Balancing & Cleanrooms, Inc., 2015 U.S. Dist. LEXIS 154730, 5 (N.D. Cal. 2015).

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However, the Court has discretion to re-characterize that claim as one alleging a direct violation

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of Section 301. The Court exercises its discretion to do that here.

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1.

Statute of Limitations

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It is unclear whether Plaintiff’s claim under Section 301 is a straightforward breach of

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contract claim or a hybrid claim. Straightforward claims are those alleging the employer breached

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the CBA. Hybrid claims are those where plaintiffs allege both that their employer beached the

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[PROPOSED] ORDER ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT OR, IN THE
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CBA and their Union breached its duty of fair representation to the employee. Soremekun v.

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Thrifty Payless, Inc., 509 F.3d 978, 989 (9th Cir. 2007).

barred by the applicable six month statute of limitations. DelCostello v. Int’l Bhd. Of Teamsters,

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462 U.S. 151, 171 (1983). Plaintiff’s Opposition argues that the six month statute of limitations

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does not apply because he is not alleging a hybrid claim. He is alleging a straightforward breach

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claim. However, he then goes on to argue that he is excused from exhausting the grievance

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process under the CBA on his straightforward claim because that failure was caused by his Union

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breaching its duty of fair representation. That argument necessarily converts Plaintiff’s claim into

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a hybrid claim, which would be barred by the 6 month statute of limitations given he did not file

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PORTER | SCOTT

Defendant’s Motion argued that, to the extent Plaintiff is pursuing a hybrid claim, it is

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350 University Avenue, Suite 200
Sacramento, CA 95825
TEL: [phone]
FAX: [phone]

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his action within 6 months. Soremekun, 509 F.3d 978, 989.

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To avoid that result, Plaintiff conceded, at the hearing on Defendant’s Motion, that he is

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waiving his argument that the Union breached its duty of fair representations and, as a result, is

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not pursuing a hybrid claim in this action. His only claim is a straightforward claim that

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Defendant breached the CBA. Consequently, Defendant’s statute-of-limitations argument is moot.

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2.

Exhaustion of the Grievance Procedures

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Defendant moves for summary judgment on Plaintiff’s straightforward breach claim on

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grounds that the grievance procedures provided in the CBA are Plaintiff’s exclusive remedy and

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Plaintiff failed to exhaust those procedures.

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Plaintiff opposes on two grounds. First, he argues the Court should excuse his failure to

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exhaust the grievance procedures because that failure was caused by his Union’s breach of its

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duty of fair representation. Plaintiff has since waived that argument as it would convert his claim

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into a hybrid claim that is barred by the six month statute of limitations.

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Plaintiff next argues that he is not bound by the grievance procedures provided in the CBA

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because those procedures are not final and binding on the parties to the CBA. Plaintiff bases that

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argument on a misinterpretation of the CBA.

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Section 3.3 of the CBA provides the employer “shall have the right to discharge any

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employee for just cause.” If an employee claims the employer lacked just cause, then he “shall
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[PROPOSED] ORDER ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT OR, IN THE
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make his claim therefore through the Union” and that claim “shall be subject to the provisions of

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Section 18 Adjustment Board and Arbitration of Disputes.”

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Section 18 then details the grievance procedures. Subsection 18.1 provides the grievance

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must first go before the Board of Adjustment. If the Board does not resolve the grievance, then it

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shall be submitted to arbitration. Subsections 18.2 and 18.3 detail the arbitration procedures.

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Subsection 18.3 states “the award of the Adjustment Board or arbitrator shall be final and binding

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upon the employer, the union and the employee.” Subsection 18.2 allows the parties to expedite

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the arbitration procedures for matters involving disciplinary action. It eliminates the requirement

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for pre-arbitration briefing and requires that the arbitrator provide his or her decision within 14

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days after the arbitration.

PORTER | SCOTT

350 University Avenue, Suite 200
Sacramento, CA 95825
TEL: [phone]
FAX: [phone]

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Plaintiff attempts to avoid the provision of Subsection 18.3 stating that the award of the

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Adjustment Board or arbitrator is “final and binding” on the parties by arguing that provision only

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applies to grievances relating to the interpretation of a term of the CBA. Plaintiff, however, fails

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to offer any evidence of legal support for that argument.

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Moreover, even if the Court accepted Plaintiff’s argument that the grievance procedures

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are only “final and binding” in matters involving the interpretation of the terms of the CBA, that

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would include Plaintiff’s grievance. Plaintiff challenges the decision to terminate his employment.

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The CBA provides he can only be terminated for “just cause.” Thus, his grievance necessarily

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involved the interpretation of “just cause” under the CBA.

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As such, the grievance procedures were “final and binding.” Plaintiff did not exhaust those

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procedures because his Union withdrew his grievance without submitting it to arbitration.

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Employees are bound by the decisions of their Unions. Vaca v. Sipes, 386 U.S. 171, 184 (1967).

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Therefore Defendant’s Motion for Summary Judgment is granted.

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3.

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Defendant’s Motion went on to argue that summary judgment should also be granted on

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the merits of Plaintiff’s claim because Defendant had just cause to terminate Plaintiff’s

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employment. The Court need not address that issue given it grants Defendant’s Motion for the

“Just Cause” for Plaintiff’s Termination

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[PROPOSED] ORDER ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT OR, IN THE
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reasons set forth above, but it nonetheless offers its analysis for the record in the event of an

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appeal.

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Defendant argues it had just cause to terminate Plaintiff’s employment because his

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behaviors violated the company’s Employee Purchase Policy. That Policy prohibits employees

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from consuming merchandise before paying for it and prohibits employees from setting

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merchandise aside to pay for it later. Plaintiff signed several acknowledgment documents

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confirming he understood that Policy and would comply with it.

understand the language of the written Policy given he does not read or understand English. The

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Court rejects that argument. The Ninth Circuit has consistently held that a party who signs a

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PORTER | SCOTT

In Opposition, Plaintiff argues Defendant lacked “just cause” because he did not

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350 University Avenue, Suite 200
Sacramento, CA 95825
TEL: [phone]
FAX: [phone]

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written agreement is bound by its terms even if the party did not read the agreement or consider

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the legal consequences of signing it. Employee Painters v. J & B Finishes, 77 F.3d 1188, 1192

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(9th Cir. 1996); Whitney Co. v. Johnson, 14 F.2d 24 (9th Cir. 1926).

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Plaintiff also attempts to raise an issue of fact through opinions contained in a Report from

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Brian Kleiner, a purported expert. As set forth above, that Report is inadmissible and therefore

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cannot be considered when ruling on a motion for summary judgment. Even if the Court

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considered the Report, the opinions contained therein alone are insufficient to raise a triable issue

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of fact regarding whether there was “just cause” for Plaintiff’s termination.

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Lastly, Plaintiff argues Defendant lacked “just cause” because he observed other

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employees engage in similar conduct without repercussion. But, again, Plaintiff failed to provide

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any admissible evidence to support that argument and he fails to cite any authority holding that an

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employer lacks just cause to terminate an employee who violates company policy just because

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other employees have engaged in similar conduct.

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Therefore, the Court finds Defendant had “just cause” to terminate Plaintiff’s employment

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based on his violation of company policy. Thus, Defendant did not breach the CBA and summary

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judgment would also be granted on that basis as well.

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IT IS SO ORDERED.

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Dated: 9/6/2016

/s/ John A. Mendez_____________________
HONORABLE JUDGE JOHN A. MENDEZ

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PORTER | SCOTT

350 University Avenue, Suite 200
Sacramento, CA 95825
TEL: [phone]
FAX: [phone]

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