Murillo v. Rite Stuff Foods, Inc.

Decision Date30 June 1998
Docket NumberNo. B114877,B114877
CourtCalifornia Court of Appeals Court of Appeals
Parties, 77 Fair Empl.Prac.Cas. (BNA) 605, 98 Daily Journal D.A.R. 7985 Isela MURILLO, Plaintiff and Appellant, v. RITE STUFF FOODS, INC., Defendant and Respondent.

Eli Estrada, Barboza & Associates, Carla D. Barboza and Maria Hanna Joseph, Los Angeles, for Plaintiff and Appellant.

Horvitz & Levy, Barry R. Levy, Andrea M. Gauthier, Encino, Jones, Hirch, Connors & Bull and Alan G. Saler, Los Angeles, for Defendant and Respondent.

SPENCER, Presiding Justice.


Plaintiff Isela Murillo appeals from a summary judgment entered in favor of defendant Rite Stuff Foods, Inc. We reverse the judgment.


On January 3, 1996, plaintiff sued defendant and its agents for sexual harassment, wrongful termination, breach of contract and the contractual covenant of good faith and fair dealing, general negligence, negligent supervision and retention of an employee, invasion of privacy, assault, battery, false imprisonment and the intentional and negligent infliction of emotional distress. Plaintiff's claims arose from her three-month employment with defendant. She commenced her employment as an assembler on February 6, 1995.

Throughout her employment, plaintiff alleges, her immediate supervisor, Efren Atilano (Atilano), touched her inappropriately and made crude sexual propositions and lewd remarks to her. He isolated her from other employees to facilitate his predations. He insulted her in front of her coworkers. Atilano engaged in all of this conduct against plaintiff's will.

On two separate occasions, plaintiff complained of Atilano's conduct to Jose Orlando Tobar (Tobar), the plant manager. Tobar assured her that he would take care of the matter. Defendant did nothing to investigate or remediate the situation, however. Instead, on May 4, 1995, defendant suspended her for one week. Thereafter, on May 15, defendant terminated her employment.

During discovery, defendant took plaintiff's deposition. She acknowledged that she was an undocumented alien. At the suggestion of Atilano, she had gone to Alvarado Street between Seventh and Eighth Streets and had purchased false resident alien and social security cards. She used these documents to secure her employment.

Upon learning these facts, defendant moved for summary judgment, asserting plaintiff's claims were barred by the doctrine of after-acquired evidence. Plaintiff promptly dismissed those causes of action and her claims related to her discharge.

According to defendant's president, Thomas T. Madden (Madden), defendant would not have hired plaintiff had it known of her illegal status when she applied for employment. Had defendant learned of her status after she was employed, it would have fired her immediately. According to Tobar, it was company policy that every worker have government authorization to work in this country.

In opposition to the motion for summary judgment, plaintiff relied on her own deposition testimony that Atilano knew she was undocumented yet told her how and where to obtain false documents and to use these documents to secure employment with defendant. She also relied on the deposition testimony of Claudia Valadez (Valadez), one of defendant's employees.

According to Valadez, who worked under the immediate supervision of Larry Bates (Bates), defendant's general manager, defendant knew its workers were undocumented but took no steps to discharge them. When Valadez was filling out forms for an insurance company, she checked employees' resident alien cards. She told Bates the company was employing mostly undocumented aliens. She could tell that the documents they had submitted were false. She told Bates the employees went to Huntington Park to obtain false documents.

Valadez talked to Bates about this more than once. On one occasion, Bates responded that the undocumented employees got their resident alien cards in Tijuana. Madden commented once that most of his employees were undocumented.


Plaintiff contends the trial court erred in granting summary judgment on the ground that the after-acquired-evidence doctrine bars all of her claims. For the reasons set forth below, we agree.


Summary judgment properly is granted if there is no question of fact and the issues raised by the pleadings may be decided as a matter of law. (Code Civ. Proc., § 437c, subd. (c); Mars v. Wedbush Morgan Securities, Inc. (1991) 231 Cal.App.3d 1608, 1613, 283 Cal.Rptr. 238.) To secure summary judgment, a moving defendant may prove an affirmative defense, disprove at least one essential element of the plaintiff's cause of action (Albert v. Southern Pacific Transportation Co. (1994) 30 Cal.App.4th 529, 533, 35 Cal.Rptr.2d 777; Chevron U.S.A., Inc. v. Superior Court (1992) 4 Cal.App.4th 544, 548, 5 Cal.Rptr.2d 674) or show that an element of the cause of action cannot be established (Gribin Von Dyl & Associates, Inc. v. Kovalsky (1986) 185 Cal.App.3d 653, 663, 230 Cal.Rptr. 50). (Code Civ. Proc., § 437c, subd. (o)(2); see Hanooka v. Pivko (1994) 22 Cal.App.4th 1553, 1558, 28 Cal.Rptr.2d 70.) The defendant "must show that under no possible hypothesis within the reasonable purview of the allegations of the complaint is there a material question of fact which requires examination by trial." (Chevron U.S.A., Inc., supra, at p. 548, 5 Cal.Rptr.2d 674.)

Inasmuch as summary judgment is a drastic procedure and should be used with caution (Mann v. Cracchiolo (1985) 38 Cal.3d 18, 35, 210 Cal.Rptr. 762, 694 P.2d 1134), the moving party's papers are strictly construed, while the opposing party's papers are liberally construed (Brantley v. Pisaro 1996) 42 Cal.App.4th 1591, 1601, 50 Cal.Rptr.2d 431; Pekarek v. City of San Diego (1994) 30 Cal.App.4th 909, 912, 36 Cal.Rptr.2d 22). Notwithstanding the strict construction given the moving party's evidence and the liberal construction given to that of the opposing party, the opponent has the burden of showing triable issues of material fact do exist; he or she may not rely on the pleadings. (Cornelison v. Kornbluth (1975) 15 Cal.3d 590, 596, 125 Cal.Rptr. 557, 542 P.2d 981; Tresemer v. Barke (1978) 86 Cal.App.3d 656, 668, 150 Cal.Rptr. 384.)

The court must consider presumptions and draw inferences from the facts adduced where the inference is the only reasonable one which may be drawn. (See Unjian v. Berman (1989) 208 Cal.App.3d 881, 884, 256 Cal.Rptr. 478, review den. May 23, 1989; Hooks v. Southern Cal. Permanente Medical Group (1980) 107 Cal.App.3d 435, 441, 165 Cal.Rptr. 741; Hirsch v. Blish (1977) 76 Cal.App.3d 163, 166, 142 Cal.Rptr. 646.) The court has no power in a summary proceeding to weigh one inference against another or against other evidence, however. (Unjian, supra, at p. 884, 256 Cal.Rptr. 478; Brown v. City of Fremont (1977) 75 Cal.App.3d 141, 145, 142 Cal.Rptr. 46.) On appeal, we review the matter de novo. (Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 579, 37 Cal.Rptr.2d 653; Torres v. Cool Carriers A.B. (1994) 26 Cal.App.4th 900, 904, 31 Cal.Rptr.2d 790.)

It is important to note initially what is not at issue in this appeal. In moving for summary judgment, defendant relied solely on the after-acquired-evidence doctrine. It submitted six facts pertaining to that defense which it considered to be undisputed. Defendant did not seek to adjudicate summarily any other issue, however. Accordingly, we are not concerned with any of the evidentiary issues underpinning plaintiff's claims.

Plaintiff sued defendant and some of its employees for sexual harassment in violation of Title VII of the Civil Rights Act of 1964 and the Fair Employment and Housing Act (FEHA), wrongful termination in violation of public policy and breach of the employment contract. She also sued for intrusive invasion of privacy, negligent supervision of an employee, negligent retention of an employee, assault, battery, false imprisonment, intentional and negligent infliction of emotional distress and general negligence. She later dismissed her wrongful termination, contract and wage-related claims.

Both Title VII (42 U.S.C. § 2000a et seq.) and the FEHA (Gov.Code, § 12900 et seq.) prohibit sexual harassment in the workplace. (42 U.S.C. § 2000e et seq.; Gov.Code, § 12940, subd. (h); Meritor Savings Bank v. Vinson (1986) 477 U.S. 57, 106 S.Ct. 2399, 91 L.Ed.2d 49.) In enacting the FEHA, the Legislature declared in Government Code section 12921 that " 'the opportunity to be free from discriminatory practices in seeking, obtaining, and holding employment is a "civil right." ' " (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 605, 262 Cal.Rptr. 842.)

The FEHA offers greater protection and relief to employees than does Title VII. An employer is strictly liable for damages an employee incurs as a result of a supervisor's or agent's sexual harassment. (Gov.Code, § 12940, subd. (h)(1); Fiol v. Doellstedt (1996) 50 Cal.App.4th 1318, 1328, 58 Cal.Rptr.2d 308; Kelly-Zurian v. Wohl Shoe Co. (1994) 22 Cal.App.4th 397, 415, 27 Cal.Rptr.2d 457.) Moreover, the courts may award unlimited compensatory and punitive damages. (Gov.Code, § 12965, subd. (c)(3); Commodore Home Systems, Inc. v. Superior Court (1982) 32 Cal.3d 211, 215, 185 Cal.Rptr. 270, 649 P.2d 912.)

The after-acquired-evidence doctrine serves as a complete or partial defense to an employee's claim of wrongful discharge. It comes into play when, after an employee's termination, the employer learns of employee wrongdoing that would have resulted in the employee's discharge in any event. (Camp v. Jeffer, Mangels, Butler & Marmaro (1995) 35 Cal.App.4th 620, 632, 41 Cal.Rptr.2d 329, review den. Aug. 17, 1995.)

In McKennon v. Nashville Banner Publishing Co. (1995) 513 U.S. 352, 115 S.Ct. 879, 130 L.Ed.2d 852, the Supreme Court considered the scope of the after-acquired-evidence doctrine in...

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