Garcia-Brower v. Premier Auto. Imports of CA, LLC

• Decision Date: 15 October 2020
• Docket Number: A156985
• Citation: 55 Cal.App.5th 961,269 Cal.Rptr.3d 856
• Court: California Court of Appeals
• Parties: Lilia GARCIA-BROWER, Plaintiff and Appellant, v. PREMIER AUTOMOTIVE IMPORTS OF CA, LLC, Defendant and Respondent.

55 Cal.App.5th 961

269 Cal.Rptr.3d 856

Lilia GARCIA-BROWER, Plaintiff and Appellant,

v.PREMIER AUTOMOTIVE IMPORTS OF CA, LLC, Defendant and Respondent.

A156985

Court of Appeal, First District, Division 1, California.

Filed October 15, 2020

Nicholas Patrick Seitz, Dorothy A. Chang and Doris Ng for Plaintiff and Appellant.

Richard J. Ritchie, San Diego, and Monika L. Brohamer for Defendant and Respondent.

Sanchez, J. Labor Code section 432.7 prohibits an employer from asking a job applicant to disclose any conviction that has been judicially dismissed and bars an employer from using any record of a dismissed conviction as a factor in the termination of employment.¹ Tracey Molina was hired by respondent Premier Automotive Imports of CA, LLC (Premier) in 2014. Exercising her rights under the Labor Code, she did not disclose a dismissed 2010 conviction for misdemeanor grand theft on her job application. She passed Premier's criminal background check and had been working for the company for four weeks when the Department of Motor Vehicles (DMV) mistakenly reported that Molina had an active criminal conviction.

Rather than investigate the discrepancy between the criminal background reports, Premier decided to terminate Molina for "falsification of job application," even after she explained to her superiors that her conviction had been dismissed by court order. Although the DMV issued a corrected notice three weeks later, Molina was not rehired by Premier.

The Labor Commissioner determined that Molina had been unlawfully discharged and ordered her reinstatement with back pay. Premier's administrative appeal of the decision was denied. When Premier did not comply with the orders, the Commissioner filed the instant enforcement action on Molina's behalf.² Following the Commissioner's presentation of evidence at trial, the trial court granted Premier's motion for nonsuit, finding an absence of any evidence that Premier was aware at the time it terminated Molina that her conviction had been judicially dismissed. We conclude the trial court erred in granting nonsuit and reverse the judgment below.

FACTUAL AND PROCEDURAL BACKGROUND

A. Complaint to Labor Commissioner

Molina filed a retaliation complaint with the Labor Commissioner in April 2014 after her termination of employment from Premier. In December 2016, the Commissioner found in Molina's favor and ordered Premier to reimburse Molina's lost wages with interest, pay a civil penalty, and reinstate Molina to her former position or a similar position. Premier lost its appeal to the Director of the Department of Industrial Relations and later refused to comply with the Commissioner's orders.

In March 2018, the Commissioner filed the underlying enforcement action against Premier for violation of sections 98.6 and 432.7. The Commissioner alleged that Premier unlawfully retaliated against Molina for exercising her right to omit disclosure of the dismissed conviction on her job application, and relied on a dismissed conviction as a factor in terminating her employment. The matter proceeded to a jury trial.

B. The Commissioner's Presentation of Evidence at Trial

i. Molina's Dismissed Conviction

Molina testified that she had pleaded no contest to misdemeanor grand theft in Santa Cruz County Superior Court in May 2010. The charge arose after she embezzled $2,600 from her then employer, Ocean Honda. She regretted her wrongdoing and took responsibility for it by paying restitution to Ocean Honda, completing 15 days of community service, and serving three years of probation. After successfully completing probation, Molina filed a motion under Penal Code section 1203.4 to have her conviction dismissed.³ The court granted her motion and dismissed her conviction in November 2013.

ii. Premier Hires Molina After Running a Background Check

Premier is an automobile retailer regulated and licensed by the Department of Motor Vehicles (DMV). In early 2014, Premier anticipated a vacancy for a contracts/DMV clerk position because the incumbent employee was planning to take an extended leave of absence. Sylvia Cunningham, Premier's office manager, invited Molina to apply for the position. She had known Molina for about a decade and they had previously worked together at a different automobile dealership. Molina applied for the position in January 2014.

Premier's job application asked if the applicant had ever pleaded guilty or no contest to, or been convicted of, a misdemeanor or a felony. The application further instructed that the question should be answered in the negative as to "any conviction for which probation has been successfully completed ... and the case has been dismissed ...." Molina truthfully answered "no" to this question. As part of the application process, Molina submitted to a background check performed by a private company named Vigilant and a fingerprint scan administered through the Department of Justice Live Scan. Molina was not concerned about these background checks because her conviction had been judicially dismissed. The Vigilant check indicated that Molina had not sustained any felony or misdemeanor convictions in the past seven years. Vigilant focused upon four counties, including Santa Cruz County.

Premier's business office was headed by Yvonne Hendricks. Based on the results of the Vigilant background check, Hendricks called Molina to tell her she had been hired. Molina began working for Premier as a contracts/ DMV clerk in February 2014. Molina's job duties included processing customer purchase contracts, inputting electronic DMV transactions, and reconciling contracts and DMV reports for consistency. The DMV work took up about 75 percent of her time, and contract work about 25 percent. Molina was trained to use the DMV system by the incumbent employee.

The DMV requires dealerships like Premier to participate in an electronic registration program called the Business Partnership Automation Program. This program allows automobile dealerships to electronically submit DMV transactions, including vehicle registrations and transfers, to the DMV for processing. Participation in the program requires DMV approval of any dealership employee who utilizes the system. Such employees are required to submit an application to the DMV and undergo a Live Scan fingerprint check with the Department of Justice. Applicants to the program are required to disclose whether they have any convictions, including convictions that have been judicially dismissed.

Premier did not submit Molina's Business Partner Automation Program application to the DMV until March 6, 2014. Molina did not disclose her misdemeanor conviction when she filled out the application. She testified that she was not trying to be dishonest and said that she failed to read the application's instruction to disclose dismissed convictions. By then, Molina had already been processing DMV transactions using the log-in credentials of the incumbent employee.

A representative from the Department of Justice testified that certain agencies, including state courts, are statutorily mandated to submit criminal history information to the Department of Justice. Relevant documents must be submitted within 30 days of a recordable event, but it is not uncommon for submissions to be late. The Department of Justice maintains its records in an automated system and the accuracy of its records depends on the information supplied by the contributing agencies. In early March 2014, there was no record in the system showing that Molina's grand theft conviction had been dismissed. Although the conviction was set aside by court order on November 25, 2013, the Department of Justice did not enter the dismissal in its database until March 25, 2014.

iii. Premier Terminates Molina's Employment

On Friday, March 7, 2014, the DMV notified Premier by letter that it had denied Molina admission to the Business Partner Automation Program because the Department of Justice background check disclosed an active conviction for grand theft. Hendricks and Cunningham were surprised to learn that Molina had a conviction. Hendricks double-checked the Vigilant background check that Friday afternoon and found no mention of any conviction. Although the Vigilant check was clean, Hendricks did not contact the DMV for more information. After speaking with Premier's legal counsel, Hendricks and Premier's general manager, Carlos Mandigma, decided to terminate Molina's employment. At trial, Mandigma testified that he too thought it was odd that the Vigilant background check conflicted with the Department of Justice's background check. He considered Vigilant to be dependable.

Premier scheduled a termination meeting with Molina the following Monday, March 10, 2014. Neither Mandigma nor Hendricks interviewed Molina prior to their decision to terminate her employment, nor was any investigation conducted concerning the discrepancy between the background checks. They did not think it necessary to do so because the DMV had denied Molina's admission to the Business Partner Automation Program and she could not do the job she was hired to do. Although the moment when Premier's managers decided to fire Molina is not clear, Cunningham recalled it was either "late Friday or first thing early Monday." Mandigma testified that the decision had already been made before the Monday meeting scheduled with Molina. According to Cunningham, the decision to fire Molina was made quickly because the contracts/DMV clerk position was very important and the incumbent employee would soon be out on maternity leave. Hendricks testified, however, that the incumbent employee remained working full-time for Premier for the next two months before taking maternity leave.

Cunningham testified that Molina was terminated because she had been denied admission to the Business Partner Automation Program. However, the DMV denial was not mentioned on Molina's termination of employment form. Instead, Mandigma checked a box on the form stating...