104 | 2023 Cal-Peculiarities ©2023 Seyfarth Shaw LLP www.seyfarth.com “[M]any employment cases present issues of intent, and motive, and hostile working environment, issues not determinable on paper. Such cases, we caution, are rarely appropriate for disposition on summary judgment, however liberalized it be. … Its flame lit by [U.S. Supreme Court decisions encouraging the use of summary judgment motions to weed out nonmeritorious cases], ... summary judgment has spread ... through the underbrush of undesirable cases, taking down some healthy trees as it goes.’ ...This we cannot allow.”240 The Court of Appeal took another swipe at summary adjudication for employers in a lawsuit that a female construction worker brought to challenge inaccessible and unsanitary portable toilets.241 The trial court granted summary adjudication against the employee’s claim for punitive damages because, as a matter of law, no managing agent of the employer had engaged in or ratified any oppressive, malicious, or fraudulent conduct.242 The Court of Appeal reversed, concluding that the declaration of the alleged managing agent, filed in support of the motion for summary adjudication, did not state “sufficient evidence.”243 Even though the declarant clearly enumerated his limited job duties, the Court of Appeal held that a jury “could reasonably infer that the declarant was a managing agent because he “exercised substantial authority and discretion regarding a broad range of issues involving the Project, including compliance with [the employer’s] policies and the hiring, supervision, and laying off of Project employees.”244 To make matters still worse for litigation-weary employers, a 2018 FEHA amendment codified California’s hostility to summary adjudication in harassment cases by stating: “Harassment cases are rarely appropriate for disposition on summary judgment. In that regard, the Legislature affirms the decision in Nazir v. United Airlines, Inc. (2009) 178 Cal. App. 4th 243 and its observation that hostile working environment cases involve issues ‘not determinable on paper.’”245 5.7.4 Plaintiff’s income tax returns privileged from discovery In America generally, plaintiffs seeking lost income in lawsuits against employers must produce income tax returns. In California it’s different. California courts have held that individuals have a privilege to withhold income tax returns from discovery.246 5.7.5 Limits to statutes of limitations California courts liberally apply “equitable estoppel,” “continuing violation,” and other doctrines designed to lengthen the deadlines for filing a lawsuit. Deferring accrual of discrimination claims. Under federal law, an employee challenging a wrongful dismissal generally must sue within a period of time that begins with the notice of the employee’s termination of employment.247 The notice may precede the actual termination of employment by weeks or months.248 In California it’s different. For a California plaintiff, the time to sue for wrongful termination does not start to run until employment actually terminates.249 The same lenient standard favors a plaintiff suing on a breach of contract: the Court of Appeal has held that an employee’s claim against an employer for breaching its promise to permit “senior” employees to continue employment under relaxed sales quotas did not accrue when the employer announced it would no longer honor the promise, but rather accrued only later, when the employer first counseled an employee for failing to meet sales quotas contrary to the relaxed quotas.250 California’s standard for determining when a claim accrues is somewhat less lenient in a failure-to-promote case. In 2021 the California Supreme Court considered a claim that the plaintiff was denied a promotion because she had rebuffed a supervisor’s sexual advance.251 The Supreme Court decided that the claim would have accrued when the employee knew or reasonably should have known of the allegedly unlawful refusal to promote, and remanded for findings on that issue.252 Further, because the statute of limitations is an affirmative defense, the
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