Whitten v. Rightthing, LLC et al

Filing 35

ORDER Affirming the Tentative Ruling - Granting in Part and Denying in Part 27 Motion for Summary Judgment. The Court Grants Defendants' motion for summary judgment on all claims against Defendant Terry Terhark and dismisses Terhark from this action. Signed by Judge Michael M. Anello on 12/21/2011. (leh)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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MARCUS R. WHITTEN,

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CASE NO. 10-cv-1889-MMA (CAB)
Plaintiff,

ORDER AFFIRMING TENTATIVE
RULING GRANTING IN PART
AND DENYING IN PART
DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT

vs.
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RIGHTTHING, LLC, a Delaware Limited
Liability Corporation (formerly THE RIGHT
THING, INC., an Ohio Corporation);
TERRY TERHARK, an individual; and
DOES 1 through 20 inclusive,

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[Doc. No. 27]

Defendants.

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This employment action is before the Court on Defendants RightThing, LLC and Terry

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Terhark’s (“Defendants”) motion for summary judgment, pursuant to Federal Rule of Civil

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Procedure 56. [Doc. No. 27.] On December 16, 2011, the Court issued a tentative ruling granting

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in part and denying in part Defendants’ motion. [Doc. No. 33.] On December 19, 2011, the Court

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held a hearing on the motions.

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Having considered the submissions of the parties and considered the arguments of counsel,

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the Court AFFIRMS its tentative ruling for the reasons stated on the record during the hearing,

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and in accordance therewith:

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The Court GRANTS Defendants’ motion for summary judgment on Plaintiff’s claim for
breach of implied contract.
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10-cv-1889-MMA (CAB)

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The Court GRANTS Defendants’ motion for summary judgment on Plaintiff’s fraud and
deceit claims.

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The Court DENIES Defendants’ motion for summary judgment on Plaintiff’s disparate

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treatment employment discrimination claim and Plaintiff’s claims of failure to prevent

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employment discrimination and wrongful termination.

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The Court GRANTS Defendants’ motion for summary judgment on Plaintiff’s disparate
impact employment discrimination claim.

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The Court GRANTS Defendants’ motion for summary judgment on Plaintiff’s defamation
claim.
The Court GRANTS Defendants’ motion for summary judgment on all claims against
Defendant Terry Terhark and dismisses Terhark from this action.
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Additionally, upon further review of the applicable case law and the submissions of the

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parties, the Court finds that Plaintiff is not entitled to recover punitive damages on his remaining

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age discrimination claims. To seek punitive damages under FEHA, a plaintiff must “prove[] by

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clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice.”

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Cal. Civ. Code § 3294(a); Tomaselli v. Transamerica Ins. Co., 25 Cal. App. 4th 1269, 1287

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(1994). “The evidence must be so clear as to leave no substantial doubt” that Defendants acted

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with the requisite intent to injure Plaintiff. Harbison v. Am. Motorists Ins. Co., 636 F. Supp. 2d

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1030, 1044 (E.D. Cal. 2009) (citing Shade Foods v. Innovative Products Sales & Marketing, Inc.,

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78 Cal. App. 4th 847, 890-91 (2000). Plaintiff’s age discrimination claims are primarily based on

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the allegation that he was unlawfully terminated due to his age and high salary. Defendants claim

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Plaintiff was fired due to his “poor performance,” but according to Plaintiff, this was really a pre-

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text for his wrongful termination. Plaintiff presents the modicum of evidence necessary to defeat

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Defendants’ motion for summary judgment as to the majority of his FEHA claims. However,

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Plaintiff fails to put forth any evidence, let alone clear and convincing evidence, that raises a

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triable issue as to whether his termination involved fraud, oppression or malice. Accordingly, the

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10-cv-1889-MMA (CAB)

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Court GRANTS Defendants’ motion and DISMISSES Plaintiff’s claim for punitive damages.
IT IS SO ORDERED.

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DATED: December 21, 2011

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Hon. Michael M. Anello
United States District Judge

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10-cv-1889-MMA (CAB)