©2023 Seyfarth Shaw LLP www.seyfarth.com 2023 Cal-Peculiarities | 103 whether the instruction manual for the power press put the employer on notice that protective guards were required and (2) whether the employer knowingly disregarded that directive.228 Emotional distress from negligent immigration processing did not arise out of and in the course of employment. In 2020 the Court of Appeal upheld a jury award for a couple—a British citizen business analyst and his wife—who suffered over $2 million in emotional distress damages because his employer negligently failed to obtain papers authorizing him to continue his work in the United States.229 The employer had agreed to sponsor him for a green card, but application delays caused him and his family to move back to England, where his employment was terminated when his visa expired.230 He successfully alleged that he would have kept his job but for the employer’s breach of its assumed duty of due care.231 On appeal, the employer argued that workers’ compensation provided the exclusive remedy for emotional injury and distress, but the Court of Appeal disagreed.232 The emotional injuries did not arise out of the business analyst’s job-related duties or responsibilities, and the sponsorship of the green card was neither a condition of employment nor a form of pay.233 Nor was the negligent handling of the process an inherent risk of employment.234 5.7.2 Exclusive statutory remedies—not In many states, if a statute forbids conduct and provides a remedy for a violation, then the statutory remedy is exclusive for that conduct. In California it’s different. For example, an employee alleging age discrimination may sue for wrongful termination under the public policy against age discrimination established by FEHA, without complying with FEHA’s administrative requirements (that is, the employee may bring a tort claim based on the public policy expressed in an antidiscrimination statute, independent of a claim brought under the antidiscrimination statute itself).235 5.7.3 Summary judgment—not so fast In America generally, and particularly in the federal system, courts use summary judgment to weed out weak lawsuits. A defendant can file such a motion and expect it to be submitted for decision relatively quickly, often within five weeks. Not so in California state courts. Special pro-plaintiff notice requirement. A California party moving for summary judgment in an employment case (almost always the defendant) must give 75 days of notice.236 This period gives plaintiffs plenty of time to take multiple depositions and to conduct additional written discovery, specifically designed to defeat the summary judgment motion, by establishing issues of contested material fact that must be decided by a jury. The party opposing a motion for summary judgment (almost always the plaintiff in an employment case) also can often delay the hearing still further to conduct even more discovery. General judicial hostility toward summary judgment. Judicial hostility towards summary judgment in California employment cases arose vividly in Nazir v. United Airlines, a Court of Appeal decision that reversed a summary judgment while devoting many pages to criticizing the defense counsel (and leaving unscathed the corresponding conduct of the plaintiff’s counsel).237 Nazir injudiciously shared various judicial prejudices against summary judgment in employment cases: Summary judgment “is being abused, especially by deep pocket defendants to overwhelm less wellfunded litigants.”238 “[C]ourts are sometimes making determinations properly reserved for the factfinder, sometimes drawing inferences in the employer’s favor, sometimes requiring the employees to essentially prove their case at the summary judgment stage.”239
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