Filed 5/16/23 Martinez v. L.A. Hardwood Flooring, Inc. CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

MELISSA MARTINEZ,

Plaintiff and Appellant,

v.

L.A. Hardwood Flooring, Inc., et 

al.,

Defendants and Respondents.

B307980

Los Angeles County

Super. Ct. No. BC715464

APPEAL from a judgment of the Superior Court of Los

Angeles County, Holly J. Fujie, Judge. Affirmed.

Employee Justice Legal Group, Kaveh S. Elihu, and Sylvia 

V. Panosian for Plaintiff and Appellant.

Jackson Lewis, Andrea F. Oxman, Peter M. Waneis, and 

Dylan B. Carp for Defendants and Respondents.

_______________________________________
2

INTRODUCTION

Plaintiff and Appellant Melissa Martinez sued her former 

employer, defendant and respondent L.A. Hardwood Flooring, 

Inc. (L.A. Hardwood), alleging six violations of the Fair 

Employment and Housing Act, Government Code1 section 12900 

et seq. (the FEHA) in this employment discrimination action, as 

well as claims for wrongful termination in violation of public 

policy and failure to provide meal and rest periods under the 

Labor Code. Martinez also sued her former supervisor, defendant 

and respondent Ray Chavez, alleging harassment. L.A. 

Hardwood terminated Martinez’s employment after coworkers 

reported that she destroyed a customer application and Martinez 

neither accepted responsibility nor explained her conduct.

Martinez, who was pregnant at the time, asserts that she was 

terminated because of her sex, pregnancy, and disability and that 

L.A. Hardwood’s explanation for her termination is pretextual. 

L.A. Hardwood and Chavez (collectively, defendants) 

successfully moved the trial court for an order granting summary 

judgment, and Martinez appeals from the judgment entered 

based on that order. We conclude that defendants met their 

burden of establishing that there is no triable issue of material 

fact as to any of Martinez’s causes of action.2 To the extent the 

1 All undesignated statutory references are to the Government Code. 

2 Martinez does not address the trial court’s summary adjudication of 

her claims for declaratory relief, failure to pay wages, failure to provide 

itemized wage statements, and waiting time penalties. We consider 

those issues waived and do not address them further herein. (Moulton 

Niguel Water Dist. v. Colombo (2003) 111 Cal.App.4th 1210, 1215.)
3

court erred in excluding certain declaration evidence, we conclude 

any such errors were not prejudicial.

FACTS AND PROCEDURAL BACKGROUND

L.A. Hardwood sells hardwood flooring to stores and 

licensed contractors. Its showrooms are not open to the public. To

shop at L.A. Hardwood, customers must have an established 

account. Potential customers typically apply for accounts by 

emailing or faxing an application to L.A. Hardwood. 

Martinez began her at-will employment with L.A. 

Hardwood in July 2016 as a customer service representative. 

Martinez was hired to L.A. Hardwood’s location in downtown Los 

Angeles, but was trained at its Pacoima location, where her 

supervisor was Jessica Palma (née Barajas). After three weeks, 

Martinez moved to the downtown location, where Chavez was her 

supervisor. Chavez reported to Yafit Algazi, who was then Vice 

President of Operations. Algazi was responsible for handling 

human resources issues. She worked with ADP Total Source 

(ADPTS), which provided a representative with whom Algazi 

could seek advice regarding human relations matters. 

Martinez and other customer service representatives sat at 

a counter at the front of the showroom and were responsible for 

greeting and helping customers. The customer service 

representatives sat near a fax machine and were also responsible 

for checking the fax machine throughout the day. 

In January 2017, Martinez complained to Palma that

Chavez showed favoritism in his management and was 

disrespectful to certain employees. The comments of which 

Martinez complained were not of a sexual nature. Algazi had a 

meeting with Chavez and Martinez during which “[e]verything 

was put on the table.” Martinez was satisfied with how the 
4

situation was resolved. Sometime between January and March of 

2017, Martinez made similar complaints about Chavez’s 

treatment of her—specifically, that the way he spoke to Martinez 

was not very manager-like—to another L.A. Hardwood employee.

On April 1 or 2, 2017, Martinez learned she was pregnant. 

On April 3, Martinez approached Chavez with a coworker, 

Jasmine Chavarria, to let him know she was pregnant.

3 Martinez 

testified that she was nervous and crying when she approached 

Chavez. Martinez asked Chavarria to tell Chavez the news and,

after she did, Chavez asked how far along she was. Martinez 

responded that she had taken a home test and needed to confirm 

it. Chavez asked why she would get herself into this situation 

and stated that he would now need to go through the process of 

hiring someone else and training them because Martinez would 

need time off. Martinez requested at least a day off to confirm her 

pregnancy with a doctor. Chavez suggested that she could do so 

after work or on the weekend. Martinez’s doctor was only 

available during the week, so she faked stomach pains and went 

to an urgent care that evening to have her pregnancy confirmed.

On April 28, Martinez complained about Chavez’s reaction 

to her pregnancy to Palma, who told Martinez she would raise 

the issue with Algazi. After Palma spoke to Algazi, Palma told 

Martinez to “Just leave it alone,” and to “Just . . . do [her] job and 

just do what [she’s] told.” Palma also told Martinez that Algazi 

wanted to have a meeting with Chavez and Martinez, but 

3 Chavarria testified that she did not recall accompanying Martinez 

when she told Chavez about her pregnancy. In a declaration, 

Chavarria stated that she never heard Chavez or anyone else make 

inappropriate comments about Martinez’s pregnancy. 
5

Martinez did not want to have a meeting with Chavez. Martinez 

and Palma did not discuss the matter further. Martinez testified 

that she had wanted Algazi to give Chavez a warning or remind 

him of the policies regarding discrimination, but she did not do 

so. Martinez felt that Algazi favored Chavez. 

Algazi informed Chavez that Palma had reached out to her 

regarding Martinez’s complaint. She recalled that he asked, “Why 

did she call Pacoima?” Algazi replied with the “straight facts,”

which were that Martinez had reached out to Palma and “didn’t 

even talk to [Algazi],” and that Palma had informed Algazi. 

Algazi testified that she did not think Chavez was frustrated, but 

simply “didn’t understand why an employee would go a different 

channel.” She did not know how he felt about Martinez reaching 

out to Palma or whether he took it personally. Chavez testified 

that he recalled learning about the incident from another 

employee but that he did not ask Algazi what had caused 

Martinez to complain to Palma. 

Chavez asked Martinez to schedule her monthly prenatal 

check-ups around the workday. She testified that she had to miss 

one appointment because Chavez told her that she could start her 

shift late, but her doctor did not have an appointment available 

at that time. Chavez did not allow her to leave early that day and 

told her to schedule the appointment for another day. Martinez 

testified that she was “pretty sure” that she had been able to do 

so. Martinez agreed that, while employed with L.A. Hardwood, 

she was able to “[e]ventually” get the maternity care she needed

from her doctor. 

Chavez never told Martinez that she could not take 

maternity leave. The only comments he made in relation to 

Martinez’s pregnancy that she found offensive were those made 
6

on April 3, 2017. She had no other complaints about the way she 

was treated by anyone at L.A. Hardwood in connection with her 

pregnancy. Martinez did not request any accommodation other 

than taking time off work (i.e., coming in late or leaving early) to 

attend doctor’s appointments. 

Apart from the comment relating to her pregnancy,

Martinez found Chavez’s statement on one occasion that she was 

doing more talking than working to be offensive. She testified 

that other coworkers were not disciplined for talking or 

socializing at work, to her knowledge. However, Martinez also 

testified that she observed Chavez speaking in a similar manner 

to other employees as he spoke to her. She further testified that 

Chavez did not say anything else to her that she found upsetting 

or disliked. 

On June 7, 2017, Martinez received a written warning 

because her cash box was $150 short, in violation of company 

policy. Chavez consulted with Algazi regarding the warning and 

what should be included. Algazi further testified that a written 

warning was appropriate because missing money is a more 

serious offense than, for example, coming in late. Martinez

believed it was unfairly issued because she immediately informed 

Chavez of the issue. She testified that, after his comments on 

April 3, she believed that any comments from Chavez were

related to her pregnancy. However, Chavez did not state that he 

was issuing the warning because of her pregnancy or because she 

was a woman, and Martinez did not tell anyone at L.A. Hardwood

that she believed she had been issued the written warning 

because of her pregnancy. According to Martinez, Chavez said 

that he was sorry that he had to write her up, and she replied, 

“Okay. Well, I told you that the money was missing, and you told 
7

me to put it back. So even after you made me put it back out of 

my own pocket, you are still going to write me up for a warning 

for it.” 

On June 27, 2017, another customer service representative, 

Paola Reyes, told Chavez that a contractor had called L.A. 

Hardwood and was upset because he had submitted a customer 

application and then re-faxed it because the first application was 

not received. Reyes stated that she and another customer service 

representative, Maria Arreola, had observed Martinez receive 

papers from the fax machine and then throw them away. Reyes 

informed Chavez that Martinez had told them not to say 

anything if asked. Reyes then showed Chavez the re-faxed 

papers. He also obtained the confirmation sheet for the original 

fax. Chavez confirmed Reyes’s version of events with Arreola. 

Reyes testified that Martinez held up a customer 

application, said “we never received this,” and then tore it up. 

She stated that the customer later called in and that Arreola

spoke with him. She also testified that Arreola had looked in 

Martinez’s trash can and saw the torn-up application. She also 

stated that Arreola had taken the re-faxed application out of the 

machine. Reyes testified that she told Chavez about the incident 

that same day. Arreola testified that Martinez took a fax from the 

machine and ripped it and threw it away. She testified that she 

did not hear Martinez say anything and that she did not know 

that it was a customer application until later. 

After he spoke with Reyes, Chavez contacted Algazi and 

told her what he had learned from Reyes and Arreola. He also 

informed her about the fax confirmation sheet. He testified that 

he did not recommend termination or any form of discipline. 
8

Algazi told him that she would look into the issue and would let 

him know her decision. 

Algazi testified that Chavez informed her of the incident 

but did not make any recommendation as to how she should 

handle the situation. Algazi reached out to ADPTS to discuss her 

options with a representative. The representative recommended 

that Algazi speak with Martinez and, depending on whether she 

took responsibility for her actions and apologized, the decision 

could be made to terminate or not. Algazi testified that, when she 

spoke with Martinez, Martinez failed to offer any explanation. 

She denied it and vaguely responded that she did not know or 

remember what happened. Algazi testified that, based on this 

response, she had no choice but to terminate Martinez’s 

employment. 

Martinez testified that, when Algazi showed her the 

application and told her that other employees had seen her rip up 

the application, she replied, “Okay. Who said that? Because we 

can clarify it right now with no problem.” Algazi told her that 

who reported it was irrelevant and that she had given Martinez a 

chance to explain, so they would be terminating her employment. 

Martinez asked to speak to Algazi without Chavez present, but 

Algazi replied that Martinez could say whatever she wanted to 

say in front of Chavez. Chavez did not speak during the meeting.

According to Martinez, Algazi did not say anything negative 

about Martinez’s pregnancy, gender, or sex during the 

termination meeting. 

Martinez did not testify as to whether she did or did not 

discard the application. When asked whether she recalled 

receiving an application and saying, “I never received this” before 

tearing it up, Martinez testified that she did not recall. When 
9

asked whether she had denied tearing up the application to 

Algazi, Martinez stated that she had told Algazi that she did not 

recall. 

Martinez testified that she had torn up other applications, 

including duplicates or illegible applications. However, Chavez 

had never told her that it was okay to tear up applications.

Arreola testified that she did not throw faxes away and would file 

away faxes that were illegible or duplicates. She did not see other 

employees throwing faxes away and did not know of anyone being 

terminated for doing so. Reyes similarly testified that she did not 

throw away illegible applications or duplicate applications and 

did not observe others doing so. Chavarria testified that when 

they received an illegible application, they would place it on the 

side in a folder. She did not see anyone throw out applications 

that were faxed in. She testified that duplicates would be stapled 

to the original. Chavarria never asked Chavez whether they 

could throw out illegible or duplicate applications. Palma testified 

that, at the Pacoima location, she observed customer service 

representatives sometimes throw away documents retrieved from 

the fax machine, including “transmission slips or those vacation 

fliers that randomly come through.” However, she did not inspect 

every document and did not know whether other documents were 

being thrown away. Palma did not know whether any employees 

were terminated for throwing away documents but knew that 

none of the employees she observed doing so were terminated.

She did not know whether there was a company policy against 

throwing away documents from the fax machine.

During her employment with L.A. Hardwood, Martinez 

understood that she was supposed to take a lunch break every 

day. She testified that no one ever told her that she could not 
10

take her lunch break, but that sometimes Chavarria, who worked 

as an accountant, would say that they were too busy to take 

lunch. Chavarria was not Martinez’s supervisor. Martinez did not 

report such comments to Chavez, Algazi, or to the owner of L.A. 

Hardwood. Martinez testified that she understood L.A. 

Hardwood’s rest break policy and took her rest breaks “most of 

the time.” No one told her that she was not permitted to take a 

break, but she felt that she “had to” keep working if it was busy 

in the showroom. Sometimes Chavarria would say “No tens.” A 

former coworker of Martinez’s would not listen to Chavarria and 

would take her break regardless. To Martinez’s knowledge, she 

was not disciplined for doing so. Martinez did not recall how 

many times she was unable to take a rest break or meal break, 

but that it happened on busy days. She estimated that she was 

unable to take a lunch break more than four but less than 10

times, and gave a similar estimate for the number of rest breaks 

she was unable to take. There were break rooms at both the 

downtown Los Angeles and Pacoima locations for employees to 

use during their breaks. 

Martinez filed suit against L.A. Hardwood, asserting 

twelve causes of action: (1) discrimination because of sex, 

pregnancy and disability; (2) harassment because of sex, 

pregnancy and disability; (3) retaliation for reporting her 

pregnancy and requesting accommodations; (4) failure to prevent 

discrimination, harassment and retaliation; (5) failure to provide 

a reasonable accommodation for a disability; (6) failure to engage 

in a good faith interactive process; (7) declaratory relief; (8) 

wrongful termination in violation of public policy; (9) failure to 

pay wages due; (10) failure to provide meal and rest breaks; (11) 

failure to provide itemized wage statements; and (12) waiting 
11

time penalties. Martinez alleged the harassment claim against 

Chavez too. 

Defendants moved for summary judgment, and the trial 

court granted their motions and sustained various objections they 

raised to declaration evidence submitted by Martinez. Martinez 

timely appealed. 

Martinez filed her original opening brief in June 2022. In 

their first brief, defendants pointed out that the statement of 

facts in Martinez’s opening brief cited primarily to her 

memorandum of points and authorities in opposition to the 

summary judgment motion and her separate statement of 

additional disputed facts. They correctly noted that neither her 

briefing nor the separate statement constitutes evidence.4

Defendants argued that this court should dismiss the appeal on 

the ground that Martinez failed to affirmatively demonstrate 

error because she did not provide an adequate appellate record, 

including citations to the record. (Randall v. Mousseau (2016) 2 

Cal.App.5th 929, 935; Cal. Rules of Court, rules 8.124(b),

8.204(a)(1)(C).)

Martinez thereafter filed a notice of errata correcting more 

than 70 citations in her opening brief. It appears that Martinez 

added in citations to the evidence underlying the portions of the 

4 See Gdowski v. Gdowski (2009) 175 Cal.App.4th 128, 139

[“Statements and arguments by counsel are not evidence. 

[Citations.]”]; Guthrey v. State of California (1998) 63 Cal.App.4th 

1108, 1115 [citation to footnote of memorandum of points and 

authorities “obviously is not to admissible evidence in the record that 

indicates a triable issue of fact exists”]; Jackson v. County of Los 

Angeles (1997) 60 Cal.App.4th 171, 178, fn. 4 [“a separate statement is 

not evidence; it refers to evidence submitted in support of or opposition 

to a summary judgment motion”].
12

memorandum of points and authorities or separate statement she 

had previously cited. This Court ordered the original opening 

brief stricken, instructed Martinez to file a new opening brief,

and stated that defendants may also file a new brief to replace 

their existing brief. Martinez was not permitted to file a reply 

brief. The parties have now done so.

DISCUSSION

1. Summary judgment was properly granted.

Martinez contends that there are triable issues of material 

fact with respect to her discrimination and retaliation causes of 

action because there is evidence that L.A. Hardwood’s decision to 

terminate her was pretextual. Specifically, she argues that Algazi 

was a “cat’s paw” for Chavez, that other employees destroyed and 

disposed of faxed documents without being terminated, and that 

L.A. Hardware’s business justification was not entitled to 

credence. She further argues that there was a triable issue of 

material fact with respect to her failure to accommodate and to 

engage in a good faith interactive process causes of action

because she was disabled by her pregnancy and because Chavez 

told her to go to appointments around the workday and did not 

permit her to take full days off. Martinez contends that evidence 

of a single incident of harassment is sufficient to defeat summary 

judgment and that the trial court improperly overlooked the 

incident with the cash box in granting summary judgment with 

respect to her harassment claim. Additionally, Martinez contends 

that there was a triable issue of material fact as to whether 

Chavez pressured and discouraged employees from taking their 

rest and meal breaks. Finally, Martinez argues that Chavez’s 

conduct, which Algazi and the owner of L.A. Hardwood consented 
13

to, created an issue of material fact as to whether L.A. 

Hardwood’s conduct supports punitive damages. 

For the reasons discussed herein, we reject these claims 

and conclude that summary judgment was properly granted.

1.1. Standard of Review

We review an order granting summary judgment de novo, 

“considering all the evidence set forth in the moving and 

opposition papers except that to which objections have been made 

and sustained.” (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 

317, 334 (Guz).)

A defendant moving for summary judgment must show 

“that one or more elements of the cause of action . . . cannot be 

established, or that there is a complete defense to the cause of 

action.” (Code Civ. Proc., § 437c, subd. (p)(2).) “In performing our 

de novo review, we must view the evidence in a light favorable to 

plaintiff as the losing party [citation], liberally construing her 

evidentiary submission while strictly scrutinizing defendants’ 

own showing, and resolving any evidentiary doubts or 

ambiguities in plaintiff’s favor.” (Saelzler v. Advanced Group 400

(2001) 25 Cal.4th 763, 768.) 

Summary judgment is appropriate only when “all the 

papers submitted show that there is no triable issue as to any 

material fact and that the moving party is entitled to a judgment 

as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).) A triable 

issue of material fact exists if the evidence and inferences 

therefrom would allow a reasonable juror to find the underlying 

fact in favor of the party opposing summary judgment. (Aguilar v. 

Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850, 856.)

In the employment discrimination context, an employee’s 

evidence submitted in opposition to an employer’s motion for 
14

summary judgment is construed liberally, yet “remains subject to 

careful scrutiny.” (King v. United Parcel Service, Inc. (2007) 152 

Cal.App.4th 426, 433.) The employee’s “subjective beliefs . . . do 

not create a genuine issue of fact; nor do uncorroborated and selfserving declarations.” (Ibid.)

5

1.2. The court properly granted summary 

adjudication on the discrimination and 

retaliation causes of action.

As a preliminary matter, Martinez begins by discussing the 

cat’s paw theory but fails to identify the elements of the

discrimination and retaliation causes of action to which this 

theory pertains. “[T]he failure to provide legal authorities to 

support arguments forfeits contentions of error.” (Ewald v. 

Nationstar Mortgage, LLC (2017) 13 Cal.App.5th 947, 948.) 

“Without a statement of the elements of a cause of action, 

supported by authority, counsel cannot establish whether triable 

issues of fact exist as to [that] cause of action.” (Id. at p. 949.)

This is grounds to conclude that any claim of error as to the 

discrimination and retaliation causes of action are forfeited on 

appeal. Although we exercise our discretion to reach the merits in 

this instance, we are not inclined to overlook the other failings in 

Martinez’s briefing, discussed infra.

The FEHA provides, in relevant part, that “[i]t is an 

unlawful employment practice . . . . [¶] (a) For an employer, 

because of the . . . physical disability, . . . medical condition, . . . 

5 Since our review is de novo, we decline to address Martinez’s 

contention that the court did not apply the correct standard because it 

labeled certain of her arguments unpersuasive and stated that she 

identified no evidence in support of certain claims. 
15

sex, [or] gender . . . of any person, to refuse to hire or employ the 

person . . . or to bar or to discharge the person from 

employment . . . .” (§ 12940, subd. (a).) To establish a prima facie 

case for disparate treatment discrimination, plaintiff must show 

(1) she was a member of a protected class, (2) she is otherwise 

qualified to do her job, with or without accommodations, (3) she 

suffered an adverse employment action, and (4) some other 

circumstance suggests discriminatory motive. (See Guz, supra, 24 

Cal.4th at p. 355.)

“[T]o establish a prima facie case of retaliation under the 

FEHA, a plaintiff must show (1) he or she engaged in a ‘protected 

activity,’ (2) the employer subjected the employee to an adverse 

employment action, and (3) a causal link existed between the 

protected activity and the employer’s action.” (Yanowitz v. 

L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042 (Yanowitz); 

§ 12940, subd. (h).)

For both the discrimination and retaliation causes of 

action, once a prima facie case is established, the burden shifts to 

the defendant to produce evidence demonstrating the adverse 

action taken against the plaintiff was unrelated to his age or 

disability (i.e., a non-discriminatory reason). (Guz, supra, 24 

Cal.4th at p. 357; Yanowitz, supra, 36 Cal.4th at p. 1042.) A 

legitimate, nondiscriminatory reason is one that is unrelated to 

prohibited bias and that, if true, would preclude a finding of 

discrimination. (Guz, at p. 358.) “While the objective soundness of 

an employer’s proffered reasons supports their credibility . . . , 

the ultimate issue is simply whether the employer acted with a 

motive to discriminate illegally.” (Ibid.) The employer’s evidence 

must be sufficient to allow the trier of fact to conclude that it is 

more likely than not that one or more legitimate, 
16

nondiscriminatory reasons were the sole basis for the adverse 

employment action. (Kelly v. Stamps.com Inc. (2005) 135 

Cal.App.4th 1088, 1097–1098.) 

By presenting such evidence, the employer shifts the 

burden to the plaintiff to present evidence that the employer’s 

decision was motivated at least in part by prohibited 

discrimination. (Guz, supra, 24 Cal.4th at pp. 353, 357; Sandell v. 

Taylor-Listug, Inc. (2010) 188 Cal.App.4th 297, 309.) The 

employee’s evidence must relate to the motivation of the decision 

makers and prove, by nonspeculative evidence, “an actual causal 

link between prohibited motivation and termination.” (King v. 

United Parcel Service, Inc., supra, 152 Cal.App.4th at pp. 433–

434.) To show that an employer’s reason for termination is 

pretextual, an employee “ ‘cannot simply show that the 

employer’s decision was wrong or mistaken, since the factual 

dispute at issue is whether discriminatory animus motivated the 

employer, not whether the employer is wise, shrewd, prudent or 

competent.’ ” (Hersant v. Department of Social Services (1997) 57 

Cal.App.4th 997, 1005.) “Rather it is incumbent upon the 

employee to produce ‘substantial responsive evidence’ 

demonstrating the existence of a material triable controversy as 

to pretext or discriminatory animus on the part of the employer.” 

(Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 862

(Serri).) To meet this burden, the employee “ ‘must demonstrate 

such weaknesses, implausibilities, inconsistencies, incoherencies, 

or contradictions in the employer’s proffered legitimate reasons 

for its action that a reasonable factfinder could rationally find 

them “unworthy of credence,” ’ ” and hence infer “ ‘ “that the 

employer did not act for [the asserted] nondiscriminatory 

reasons.” ’ ” (Hersant, at p. 1005.) The stronger the employer’s 
17

showing of a legitimate, nondiscriminatory reason, the stronger 

the plaintiff’s evidence must be in order to create a reasonable 

inference of a discriminatory motive. (Guz, at p. 362 & fn. 25.)

We will assume for the sake of argument that Martinez 

established a prima facie case for discrimination and retaliation. 

However, L.A. Hardwood has met its burden to produce evidence 

“that its action was taken for a legitimate, nondiscriminatory 

reason.” (Guz, supra, 24 Cal.4th at pp. 355–356; Yanowitz, supra, 

36 Cal.4th at p. 1042.) Algazi ended Martinez’s employment 

because of Martinez’s failure to meaningfully address her 

coworkers’ allegation that she destroyed a customer’s faxed 

application and essentially told them to lie about it. This evidence 

satisfies L.A. Hardwood’s burden to make a “ ‘sufficient showing 

of a legitimate reason for discharge.’ ” (Hanson v. Lucky Stores, 

Inc. (1999) 74 Cal.App.4th 215, 225.)

Thus, we consider whether there is substantial responsive 

evidence demonstrating the existence of a material triable 

controversy as to discriminatory or retaliatory animus on the 

part of the employer. (Serri, supra, 226 Cal.App.4th at p. 862.)

Martinez raises several arguments to support that the decision to 

terminate her employment was pretextual.

First, Martinez argues that, although Algazi did not have a 

discriminatory motive, she acted as Chavez’s “cat’s paw” in 

terminating Martinez. In support of this claim, she relies on two 

cases: DeJung v. Superior Court (2008) 169 Cal.App.4th 533 

(DeJung) and Reeves v. Safeway Stores, Inc. (2004) 121 

Cal.App.4th 95 (Reeves). In DeJung, the plaintiff requested to 

work as a full-time court commissioner after previously splitting 

the commissioner position with another. (DeJung, at p. 540.) The 

presiding judge of the superior court, who was also chair of the 
18

court’s executive committee, informed the plaintiff that the 

committee “ ‘want[ed] somebody younger, maybe in their 40’s.’ ”

(Ibid.) When another court employee asked the presiding judge 

about the plaintiff, the presiding judge replied, “ ‘[He’s] a great 

guy, but we’re looking for someone younger.’ ” (Id. at p. 541.) The 

plaintiff nevertheless applied for the position and was selected by 

a screening committee (which did not include the presiding judge) 

for an interview. (Ibid.) The interview panel, of which the 

presiding judge was part, did not rank the plaintiff among their 

top three candidates. (Ibid.) Ultimately, a candidate who was 43 

years old and was not ranked among the top three candidates by 

the interview panel was appointed to the position of 

commissioner. (Id. at p. 542.) The plaintiff then filed a complaint 

for age discrimination in hiring. (Ibid.)

The court observed that the plaintiff was not required to

“demonstrate that every individual who participated in the 

failure to hire him shared discriminatory animus in order to 

defeat a summary judgment motion . . . . [S]howing that a 

significant participant in an employment decision exhibited 

discriminatory animus is enough to raise an inference that the 

employment decision itself was discriminatory, even absent 

evidence that others in the process harbored such animus.”

(DeJung, supra, 169 Cal.App.4th at p. 551.) “[I]t can hardly be 

argued that Hardcastle, as the presiding judge and the chair of 

the Executive Committee, was not a direct and important 

participant in the Superior Court’s decisionmaking process when 

it decided not to retain DeJung in the full-time commissioner 

position.” (Id. at p. 552.)

Here, there is no evidence to support that Chavez was a 

significant part of the decision-making process. The undisputed 
19

evidence establishes that, after learning about the incident, 

Chavez brought the matter to Algazi’s attention, who was 

responsible for human relations. He did not make any 

recommendations regarding what action Algazi should take. 

Algazi testified that she did not make any decisions regarding 

Martinez’s employment until she spoke with Martinez and 

Martinez responded only vaguely to her questions about what 

happened. Martinez herself testified that she told Algazi that she 

did not recall the incident and did not affirmatively admit or 

deny what Reyes and Arreola had told Chavez. While Chavez was 

present at the meeting at which Martinez was terminated, it is 

undisputed that he said nothing. The circumstances here thus 

bear little resemblance to the circumstances in DeJung, where 

the presiding judge who had repeatedly stated that the plaintiff 

was too old for the position was part of the committees that 

decided whether the plaintiff would be hired. 

The circumstances are also distinguishable from those 

present in Reeves. The plaintiff in Reeves had acted on behalf of 

certain female coworkers in reporting sexual harassment by 

other employees, including Brian Sparks, to their supervisor, 

Fred Demarest. (Reeves, supra, 121 Cal.App.4th at pp. 100–101.) 

Demarest claimed to investigate the matter and concluded that 

there was no evidence of harassment, even though a female 

employee testified that she had complained to Demarest directly 

about the issue. (Id. at p. 101.) According to the district manager, 

Moira Susan Hollis, Demarest had acted improperly in 

investigating the matter on his own rather than reporting the 

claimed harassment to human resources. (Ibid.) Although 

Demarest asked the plaintiff not to enter the store after closing, 

the plaintiff asked to be let back in after his shift ended because 
20

he urgently needed to use the restroom. (Id. at pp. 101–102.) 

Another employee, Sandy Juarez, refused to let him in and 

claimed that the plaintiff became irate and pushed her with both 

hands through the doors. (Id. at p. 102.) Sparks also testified that 

he saw the plaintiff push Juarez, although Juarez did not 

remember seeing Sparks in the area when the incident occurred. 

(Ibid. & fn. 4.) Juarez reported the incident to Demarest, and, 

after an investigation, the plaintiff’s employment was 

terminated. (Id. at pp. 103–105.)

The plaintiff’s termination involved four principal actors: 

“Juarez, who reported the May 31, 1998 confrontation with 

plaintiff as a battery; Demarest, who reported the incident to 

security as an instance of ‘possible workplace violence’; [Darrell] 

Harrison, who conducted an investigation of the incident; and 

Hollis, who adopted Harrison’s recommendation and formally 

discharged plaintiff.” (Reeves, supra, 121 Cal.App.4th at p. 116.) 

While it was unclear whether Juarez’s motives could be imputed 

to the defendant, “the evidence present[ed] ample basis for 

finding retaliatory motives and conduct on the part of plaintiff’s 

unquestioned supervisor, Demarest[,]” including that he 

“resented and opposed plaintiff’s efforts to secure relief for the 

women in the store from what plaintiff believed (with the 

agreement of at least some of them) was a pattern of sexual 

harassment.” (Id. at p. 117.) He “acted entirely on the basis of 

accounts from Juarez and Sparks, each of whom had a reason—

which could well have been readily apparent to Demarest—to 
21

portray plaintiff’s conduct ‘in the worst possible light.’ ” (Ibid.)

6

He also “referred the matter to security rather than to the human 

resources department,” and there was “substantial evidence that 

Demarest knew such a referral was substantially certain to 

result in the dismissal of [plaintiff]” since “every case he ever 

referred to security resulted in dismissal where it involved ‘an 

allegation of improper conduct’ comparable to the allegations 

against plaintiff.” (Id. at pp. 117–118.)

With respect to the third actor, Harrison, “[t]he record 

includes no testimony by him concerning his reasons for 

recommending that Hollis dismiss plaintiff[]” and indicated that 

the plaintiff had told him about sexual harassment complaints 

that plaintiff had relayed to Demarest. (Reeves, supra, 121

Cal.App.4th at pp. 118–119.) The evidence further supported that 

his investigation “was heavily skewed to favor the ostensibly 

tentative conclusions of the reporting supervisor, Demarest[]”

and failed to include any ameliorating circumstances. (Id. at 

pp. 119–120.) Thus, although it was “undisputed that Safeway 

has articulated a legitimate nondiscriminatory reason for its 

actions with respect to district manager Hollis, who made the 

ultimate decision to discharge plaintiff . . . . Safeway ha[d] failed 

to make a threshold showing that all material contributors to the 

decision acted for legitimate nondiscriminatory motives[]” and 

failed to “show[] that plaintiff cannot present sufficient proof to 

establish that retaliatory animus on the part of one or more 

6 The female employee who complained to Demarest about sexual 

harassment had listed Juarez among the coworkers by whom she had 

been harassed at Safeway. (Reeves, supra, 121 Cal.App.4th at p. 117.)
22

contributors to the decision was a substantial contributing factor 

in bringing about his dismissal.” (Id. at p. 113.)

In Reeves, both witnesses to the incident that resulted in 

the plaintiff’s termination had been accused of sexual harassment

and had reason to portray the plaintiff’s conduct in the worst 

light because he had raised the issue of sexual harassment to his 

supervisor. Here, Martinez identifies no evidence suggesting that 

Reyes or Arreola had any bias against her. Further, in contrast to 

Demarest, who referred the matter to security with the 

knowledge that this would likely result in the plaintiff’s 

termination, Chavez referred the matter to Algazi, who was 

responsible for human resources. There is no evidence to suggest 

that Chavez knew that this course of action would result in 

Martinez’s termination. Further, Algazi, who was the ultimate 

decision-maker, did not merely implement the recommendations 

of others, as Hollis did. There is no evidence that supports that 

Chavez made any recommendation as to what action Algazi 

should take. Algazi first consulted with a third-party human 

resources service, ADPTS, about her options and then met with 

Martinez and offered her an opportunity to explain before 

making her decision. 

Under these circumstances, we conclude that there is no 

substantial evidence that would permit a jury to find that Chavez 

used Algazi as a conduit to terminate Martinez’s employment.

Martinez also argues that the decision to terminate her 

employment was pretextual because she claims that other 

employees disposed of applications that were illegible or 

duplicates and were not fired. “To establish discrimination based 

on disparate discipline, it must appear ‘that the misconduct for 

which the employer discharged the plaintiff was the same or 
23

similar to what a similarly situated employee engaged in, but 

that the employer did not discipline the other employee 

similarly.’ [Citation.]” (McGrory v. Applied Signal Technology, 

Inc. (2013) 212 Cal.App.4th 1510, 1535.) “Another employee is 

similarly situated if, among other things, he or she ‘ “engaged in 

the same conduct without any mitigating or distinguishing 

circumstances.” ’ [Citation.]” (Wills v. Superior Court (2011) 195 

Cal.App.4th 143, 172, italics added.) There is no evidence in the 

record indicating that another employee intentionally tore up an 

original customer application in front of coworkers and told them 

to say nothing about it, as Reyes claimed Martinez did. Other 

employees at the downtown Los Angeles location, including 

Chavarria, Reyes, and Arreola, denied disposing of even duplicate 

and illegible applications. While employees at the Pacoima 

location apparently disposed of duplicate and illegible documents, 

there is no testimony from any L.A. Hardwood employee stating

that they thought it was permissible to dispose of original, legible

customer applications. Moreover, there is no evidence in the 

record that anyone had previously reported such conduct to 

Algazi and that they were treated in a different manner than 

Martinez. 

Finally, Martinez argues, without citation to the record, 

that L.A. Hardwood’s proffered business justification for 

terminating Martinez’s employment was not entitled to credence.

Any statement in a brief concerning matters that are in the 

appellate record, whether factual or procedural, whether in the 

statement of facts, the procedural history, or the argument

portion of the brief, must be supported by a citation to the record.

(Cal. Rules of Court, rule 8.204(a)(1)(C); City of Lincoln v. 

Barringer (2002) 102 Cal.App.4th 1211, 1239, fn. 16 [record 
24

citations in statement of facts do not cure failure to include 

record citations in argument portion of brief]; Alki Partners, LP v. 

DB Fund Services, LLC (2016) 4 Cal.App.5th 574, 590, fn. 8 

[same].) Martinez’s reference to approximately 12 pages of her 

statement of facts, which contains record citations, in support of 

this argument does not cure the failure. “To provide record 

citations for alleged facts at some points in a brief, but not at 

others, frustrates the purpose of [Rule 8.204(a)(1)(C)], and courts 

will decline to consider any factual assertion unsupported by 

record citation at the point where it is asserted.” (Alki, at p. 590, 

fn. 8, italics added.) In their original respondent’s brief, 

defendants, relying on Alki, argued that Martinez had failed to 

preserve another issue for appeal by merely referencing an 

earlier portion of her brief and failing to provide record citations. 

Accordingly, Martinez was on notice and had an opportunity to 

remedy this error in her corrected opening brief. She failed to do 

so and thus waives this contention.

We therefore conclude that a trier of fact could not 

reasonably conclude that L.A. Hardwood’s stated reasons for 

terminating Martinez’s employment were implausible, 

inconsistent or baseless and that the court did not err in 

summarily adjudicating Martinez’s discrimination and 

retaliation causes of action.

1.3. The court properly granted summary 

adjudication on Martinez’s accommodation and

good faith interactive process claims.

The elements of a cause of action for failure to 

accommodate a disability under the FEHA are (1) the plaintiff 

has a disability under the FEHA or was regarded as having a 

disability, (2) the plaintiff is qualified to perform the essential 
25

functions of the job with or without reasonable accommodation, 

and (3) the employer failed to reasonably accommodate the 

plaintiff’s disability. (Scotch v. Art Institute of California (2009) 

173 Cal.App.4th 986, 1009–1010.)

“ ‘Two principles underlie a cause of action for failure to 

provide a reasonable accommodation. First, the employee must 

request an accommodation. [Citation.] Second, the parties must 

engage in an interactive process regarding the requested 

accommodation and, if the process fails, responsibility for the 

failure rests with the party who failed to participate in good faith. 

[Citation.]’ ” (Avila v. Continental Airlines, Inc. (2008) 165 

Cal.App.4th 1237, 1252.) “Generally, ‘ “[t]he employee bears the 

burden of giving the employer notice of the disability. [Citation.] 

This notice then triggers the employer’s burden to take ‘positive 

steps’ to accommodate the employee’s limitations . . . . [¶] . . . The 

employee, of course, retains a duty to cooperate with the 

employer’s efforts by explaining [his or] her disability and 

qualifications. [Citation.] Reasonable accommodation thus 

envisions an exchange between employer and employee where 

each seeks and shares information to achieve the best match 

between the [employee’s] capabilities and available positions.” 

[Citation.]’ ” (Raine v. City of Burbank (2006) 135 Cal.App.4th 

1215, 1222.) “ ‘ “ ‘[T]he employee can’t expect the employer to 

read his mind and know he secretly wanted a particular 

accommodation and sue the employer for not providing it.’ ” ’ ” 

(Featherstone v. Southern California Permanente Medical Group 

(2017) 10 Cal.App.5th 1150, 1167.) 

“While a claim of failure to accommodate [under 

subdivision (m)] is independent of a cause of action for failure to 

engage in an interactive dialogue [under subdivision (n)], each 
26

necessarily implicates the other.” (Gelfo v. Lockheed Martin Corp.

(2006) 140 Cal.App.4th 34, 54.) “Although it is the employee’s 

burden to initiate the process, no magic words are necessary, and 

the obligation arises once the employer becomes aware of the 

need to consider an accommodation. Each party must participate 

in good faith, undertake reasonable efforts to communicate its 

concerns, and make available to the other information which is 

available, or more accessible, to one party. Liability hinges on the 

objective circumstances surrounding the parties’ breakdown in 

communication, and responsibility for the breakdown lies with 

the party who fails to participate in good faith.” (Id. at p. 62, fn. 

22.)

Martinez argues that she was disabled by pregnancy when 

she was terminated and that L.A. Hardwood was therefore 

required to make reasonable accommodation for her and engage 

in a good faith interactive process, which it failed to do by 

refusing to allow her to take full days off for her prenatal 

appointments. Defendants contend that Martinez’s claims for 

failure to accommodate and to engage in a good faith interactive 

process fail as a matter of law because Martinez did not have a 

disability under the FEHA and because she received every 

accommodation that she requested. We agree with both of 

defendants’ contentions. 

“A woman is ‘disabled by pregnancy’ if, in the opinion of her 

health care provider, she is unable because of pregnancy to 

perform any one or more of the essential functions of her job or to 

perform any of these functions without undue risk to herself, to 

her pregnancy’s successful completion, or to other persons. An 

employee also may be considered to be disabled by pregnancy if, 

in the opinion of her health care provider, she is suffering from 
27

severe morning sickness or needs to take time off for: prenatal or 

postnatal care . . . .” (Cal. Code Regs., tit. 2, § 11035, subd. (f).) In 

its summary judgment briefing, L.A. Hardwood argued that there 

was no evidence to support that Martinez was unable to perform 

the essential functions of her position due to her pregnancy and 

the trial court agreed. Martinez now contends that she was 

disabled under subdivision (f) because she needed to take time off 

for prenatal care. 

Even if Martinez did not waive this claim by failing to raise 

it in her briefing below, she does not cite any evidence suggesting

that a doctor instructed her to take time off for prenatal care. At 

most, the record supports that Martinez left work early or came 

late to attend her monthly prenatal appointments. She does not 

cite any authority supporting that an employee whose prenatal

appointments cause her to occasionally take some time off work

is disabled under subdivision (f). Thus, Martinez has failed as a 

matter of law to establish that she was disabled. 

Moreover, even if Martinez had established that she was 

disabled under the FEHA after her pregnancy was confirmed by 

a health care provider,

7 Martinez testified that she did not 

request any accommodation other than taking time off work (i.e., 

coming in late or leaving early) to attend doctor’s appointments. 

7 Martinez fails to explain how she could be disabled by pregnancy 

under the provision on which she relies—which requires that a health 

care provider render the opinion that she needs time off for prenatal 

care—before any health care provider had even confirmed that she was

pregnant. (Cal. Code Regs., tit. 2, § 11035, subd. (f).) Thus, even if we 

are willing to assume for the sake of argument that Martinez was

disabled by her pregnancy, we will not indulge the assumption that 

she was disabled before her pregnancy was confirmed.
28

She further testified that she was able to eventually obtain all 

the care that she sought. Martinez’s unsupported contention that 

Chavez failed to accommodate her by letting her take the full day 

off for prenatal appointments is contradicted by her own 

testimony, which stated that the only accommodation she 

requested was coming late or leaving early, not missing work

entirely. In the absence of any evidence that Martinez required or 

sought any other accommodation for her pregnancy, there is no

triable issue of material fact as to whether L.A. Hardwood failed 

to meet any duty it had to accommodate or to engage in an 

interactive process.

1.4. The court properly granted summary 

adjudication on the harassment cause of action.

The FEHA prohibits an employer from harassing an 

employee “because of . . . physical disability . . . sex, [or] 

gender . . . .” (§ 12940, subd. (j)(1).) A supervisor may also be 

subject to personal liability for harassment. (§ 12940, subd. (j)(3).) 

Martinez brings a harassment claim against both L.A. Hardwood 

and Chavez. A harassment claim “requires a showing ‘ “that the 

conduct complained of was severe enough or sufficiently 

pervasive to alter the conditions of employment and create a 

work environment that qualifies as hostile or abusive to 

employees because of their [disability, sex, or gender].” ’ 

[Citation.] . . . Since ‘there is no possible justification for 

harassment in the workplace,’ an employer cannot offer a 

legitimate nondiscriminatory reason for it. [Citation.]” (Cornell v. 

Berkeley Tennis Club (2017) 18 Cal.App.5th 908, 927.) Unlike 

discrimination claims, “harassment often does not involve any 

official exercise of delegated power on behalf of the employer,” 

but instead “focuses on situations in which the social environment
29

of the workplace becomes intolerable because the harassment 

(whether verbal, physical, or visual) communicates an offensive 

message to the harassed employee.” (Roby v. McKesson Corp.

(2009) 47 Cal.4th 686, 706 (Roby).) In other words, “harassment 

is generally concerned with the message conveyed to an 

employee, and therefore with the social environment of the 

workplace, whereas discrimination is concerned with explicit 

changes in the terms or conditions of employment.” (Id. at 

p. 708.)

“[H]arassment consists of conduct outside the scope of 

necessary job performance, conduct presumably engaged in for 

personal gratification, because of meanness or bigotry, or for 

other personal motives. Harassment is not conduct of a type 

necessary for management of the employer’s business or 

performance of the supervisory employee’s job.” (Janken v. GM 

Hughes Electronics (1996) 46 Cal.App.4th 55, 63.) “[T]he 

Legislature intended that commonly necessary personnel 

management actions such as hiring and firing, job or project 

assignments, office or work station assignments, promotion or 

demotion, performance evaluations, the provision of support, the 

assignment or nonassignment of supervisory functions, deciding 

who will and who will not attend meetings, deciding who will be 

laid off, and the like, do not come within the meaning of 

harassment.” (Id. at pp. 64–65.) Although a supervisor’s official 

employment actions can provide the evidentiary basis for a 

hostile work environment gender harassment claim under certain 

limited circumstances, the key is showing that the actions had 

the “secondary effect of communicating a hostile message.” (Roby, 

supra, 47 Cal.4th at p. 709.) “This occurs when the actions 

establish a widespread pattern of bias.” (Ibid.)
30

“Whether the harassment is sufficiently severe or pervasive 

to create a hostile work environment ‘must be assessed from the 

“perspective of a reasonable person belonging to [the same 

protected class as] the plaintiff.” ’ [Citation.] In making this 

assessment, we consider several factors, including ‘ “the 

frequency of the discriminatory conduct; its severity; whether it is 

physically threatening or humiliating, or a mere offensive 

utterance; and whether it unreasonably interferes with an 

employee’s work performance.” ’ ” (Cornell v. Berkeley Tennis 

Club, supra, 18 Cal.App.5th at p. 940.)

The record demonstrates that the only comments that 

Chavez made in connection with Martinez’s pregnancy that she 

found offensive were the comments made on April 3. After that 

date, neither Chavez nor anyone else at L.A. Hardwood

commented on her pregnancy in a manner that Martinez found 

offensive or negative. The only other comment that Chavez made 

that Martinez found offensive was when he told her she was 

doing more talking than working. This is “conduct of a type 

necessary for management of the employer’s business or 

performance of the supervisory employee’s job” and thus is not 

actionable as harassment. (Janken, supra, 46 Cal.App.4th at p. 

63.) 

Martinez contends that a single incident of harassment 

may be sufficient to create a hostile work environment. This is 

true “if the harassing conduct has unreasonably interfered with 

the plaintiff’s work performance or created an intimidating, 

hostile, or offensive working environment.” (§ 12923, subd. (b).)

Conduct interferes with an employee’s work performance if it 

results in the loss of a tangible job benefit or if the plaintiff 

satisfies the “ ‘ “commensurately higher showing” ’ ” that the 
31

conduct “ ‘ “was pervasive and destructive of the working 

environment.” ’ ” (Lyle v. Warner Brothers Television Productions

(2006) 38 Cal.4th 264, 284.)

Martinez contends that whether Chavez’s conduct rises to 

this level is necessarily a question of fact. However, the cases she 

cites in support of this proposition did not involve an isolated 

comment by the supervisor. In Ortiz v. Dameron Hospital 

Association (2019) 37 Cal.App.5th 568, 582–583, the court held 

that there was sufficient evidence of severe and pervasive 

harassment where the “complained of conduct [by the supervisor] 

. . . included involuntarily transferring [plaintiff] to a unit where 

she had little or no experience without providing her with any 

training, and falsely accusing her of sleeping on the job, a 

terminable offense,” as well as repeated comments by the 

supervisor that Filipino unit coordinators like the plaintiff were 

“stupid,” “too old,” “dummies,” and “didn’t speak English.” In 

Caldera v. Department of Corrections & Rehabilitation (2018) 25 

Cal.App.5th 31, 43, which was not a summary judgment case, the 

court concluded that sufficient evidence supported the jury’s 

determination of harassment where the employee was mocked for 

his stutter approximately 12 times over two years, including over 

the prison radio system and in front of a group of other 

employees. And in Miller v. Department of Corrections (2005) 36 

Cal.4th 446, 468, the court held that summary judgment was 

improper where the chief deputy warden of the prison at which 

plaintiffs worked was having an affair with an employee who 

subjected the plaintiffs to harassment with impunity, including 

“loss of work responsibilities, demeaning comments in the 

presence of other employees, loss of entitlement to a pay 

enhancement and to disability accommodation, and physical 
32

assault and false imprisonment.” Thus, these cases bear little 

resemblance to the insensitive, but not overtly abusive or 

derogatory, comments made by Chavez on April 3.

Rather, the circumstances here are comparable to Holmes 

v. Petrovich Development Co., LLC (2011) 191 Cal.App.4th 1047

(Holmes). In Holmes, the plaintiff revealed that she was pregnant 

a month after she was hired as an executive assistant and told 

her employer she planned to work up until her due date and 

would be out on maternity leave for six weeks. (Id. at p. 1052.) 

The plaintiff disliked when other employees asked about her 

maternity leave and asked them to stop, which they did. (Id. at 

p. 1053.) A month after she revealed her pregnancy, the employer 

emailed the plaintiff about getting another person up to speed on 

covering her tasks. (Ibid.) She informed him that she would be 

taking her maternity leave earlier than previously discussed and 

might be out for the full four months permitted under California 

law. (Ibid.) The employer responded, “ ‘I need some honesty. How 

pregnant were you when you interviewed with me and what 

happened to six weeks? . . . That is an extreme hardship on me, 

my business and everybody else in the company. You have rights 

for sure and I am not going to do anything to violate any laws, 

but I feel taken advantage of and deceived for sure.’ ” (Ibid.) 

The court concluded that “[a]n evaluation of all the 

circumstances surrounding [plaintiff’s] employment discloses an 

absence of evidence from which a reasonable jury could 

objectively find that [the employer] created a hostile work 

environment for a reasonable pregnant woman. During the two 

months [the plaintiff] worked for [the employer], there was no 

severe misconduct or pervasive pattern of harassment.” (Holmes, 

supra, 191 Cal.App.4th at p. 1060.) The court noted that other 
33

employees ceased to ask questions about the plaintiff’s maternity 

leave when asked. (Ibid.) With respect to the emails from her 

employer, the court concluded that, “[w]hen viewed in context, 

the e-mails . . . show nothing more than that [the employer] made 

some critical comments due to the stress of being a small 

business owner who must accommodate a pregnant woman’s 

right to maternity leave. He recognized [the plaintiff’s] legal 

rights, stated he would honor them, said he was not asking for 

her resignation, noted he had been pleased with her work, and 

simply expressed his feelings as a ‘human in a tough business 

where people are constantly trying to take advantage of me.’ He 

assured [the plaintiff] that ‘it will work.’ ” (Id. at pp. 1060–1061.)

The court observed that the FEHA is not “a civility code” and that 

“[t]he isolated incidents to which she points are objectively 

insufficient.” (Id. at p. 1061.) The court acknowledged that 

pervasive conduct is not required where the harassment is 

sufficiently severe but concluded that the circumstances before it 

did not rise to that level. (Ibid.)

Chavez similarly expressed frustration that Martinez “got 

herself into this situation” and that he would have to train 

another employee to cover for her while she was on maternity 

leave. While these comments were offensive to Martinez, and 

likely would be to the average pregnant woman, “merely 

offensive” comments are not actionable. (Lyle v. Warner Brothers 

Television Productions, supra, 38 Cal.4th at p. 283.) These 

comments were not so humiliating that a reasonable pregnant 

woman would consider her workplace significantly altered for the 

worse or would have so feared hearing another such remark 

about her pregnancy that she would be unable to perform her job 
34

duties. Chavez made no other inappropriate comments relating to 

Martinez’s pregnancy, sex, or gender. 

Martinez also contends that the trial court erred in 

focusing only on Chavez’s comments and by not considering the 

incident with the cash box. There is no dispute that her cashbox 

was $150 short of the amount required by L.A. Hardwood’s 

policies. It is also undisputed that Chavez did not state that he 

was issuing a written warning about the missing money because 

of Martinez’s pregnancy. Issuing a written warning for 

noncompliance with company policy was a managerial action that 

does not constitute harassment. Martinez argues that this 

discipline constitutes harassment because Chavez required her to 

put in $150 of her own money to cover the missing amount. Once 

again, Martinez does not include any record citations in support 

of this assertion but instead refers to a prior argument section. 

As we have stated, the failure to identify relevant evidence in 

support of a claim at the point at which the claim is made results 

in waiver. 

Even if we were to consider the issue, evidence of a single, 

improper employment action is objectively not evidence of a 

“widespread pattern of bias,” which our Supreme Court has 

stated is necessary to show that official employment actions could 

have contributed to the hostile message the supervisor was 

expressing to the employee “in other, more explicit ways.” (Roby, 

supra, 47 Cal.4th at p. 709.)8

8 Roby bears little resemblance to the circumstances present here. The 

court in Roby observed that the supervisor’s “shunning of [the plaintiff]

during staff meetings,” “belittling of [the plaintiff’s] job,” and 

“reprimands of [the plaintiff] in front of [her] coworkers” may have 

been “official employment actions done in furtherance of a supervisor’s 
35

Thus, we conclude that the record reflects an absence of 

evidence from which a reasonable jury could find that Chavez

created a hostile work environment “for a reasonable pregnant 

woman.” (Holmes, supra, 191 Cal.App.4th at p. 1060.)

1.5. The court properly granted summary 

adjudication of Martinez’s derivative causes of 

action.

Section 12940, subdivision (k) provides that it is an 

unlawful employment practice “[f]or an employer . . . to fail to 

take all reasonable steps necessary to prevent discrimination and 

harassment from occurring.” In order to maintain a claim for 

failure to prevent discrimination, harassment, or retaliation, 

there must have been an act of discrimination, harassment, or 

retaliation. “ ‘[T]here’s no logic that says an employee who has 

not been discriminated against can sue an employer for not 

preventing discrimination that didn’t happen, for not having a 

policy to prevent discrimination when no discrimination 

occurred . . . .’ Employers should not be held liable to employees 

for failure to take necessary steps to prevent such conduct, except 

managerial role” but also had “a secondary effect of communicating a 

hostile message.” (Roby, supra, 47 Cal.4th at p. 709.) The supervisor 

also “made negative comments in front of other workers about 

[plaintiff’s] body odor” which was caused by medication, “called 

[plaintiff] ‘disgusting’ because of the sores on her arms and her 

excessive sweating,” “openly ostracized plaintiff in the office, refusing 

to respond to [her] greetings and turning away when [she] tried to ask 

questions,” “made a facial expression of disapproval when [plaintiff] 

took rest breaks,” and “overlooked [plaintiff] when handing out 

specialty food items, holiday gifts, and travel trinkets, although [the 

supervisor] regularly gave these small gifts to the other employees on 

her staff.” (Id. at pp. 695, 709.)
36

where the actions took place and were not prevented.” (Trujillo v. 

North County Transit Dist. (1998) 63 Cal.App.4th 280, 289; see 

also Featherstone v. Southern California Permanente Medical 

Group, supra, 10 Cal.App.5th at p. 1166.)

Because Martinez cannot establish the underlying causes of 

action, her derivative claims for failure to prevent discrimination, 

retaliation and harassment must also fail.

9

1.6. Martinez waived any challenge of her meal and 

rest break claims.

Martinez devotes only two sentences of her opening brief to 

her assertion that the trial court erred in granting summary 

judgment of her meal and rest break causes of action. She makes 

no citation to the record, but merely refers to a section of her 

statement of facts. (Alki Partners, LP v. DB Fund Services, LLC, 

supra, 4 Cal.App.5th at p. 590, fn. 8.) Further, Martinez does not 

develop her claim by citing or applying any legal authorities, 

apart from a passing reference to Brinker Restaurant Corp. v. 

Superior Court (2012) 53 Cal.4th 1004. “Appealed judgments and 

orders are presumed correct, and error must be affirmatively 

shown.” (Hernandez v. California Hospital Medical Center (2000) 

78 Cal.App.4th 498, 502; Arnold v. Dignity Health (2020) 53 

Cal.App.5th 412, 423 [“plaintiff bears the burden of establishing 

error on appeal, even though defendants had the burden of 

proving their right to summary judgment before the trial court”].) 

Thus, Martinez waived her challenge as to these causes of action.

9 Martinez does not address her cause of action for wrongful 

termination in violation of public policy. 
37

1.7. There is no basis for an award of punitive 

damages.

“[W]here it is proven by clear and convincing evidence that 

the defendant has been guilty of oppression, fraud, or malice, the 

plaintiff, in addition to the actual damages, may recover damages 

for the sake of example and by way of punishing the defendant.” 

(Civ. Code, § 3294, subd. (a).) “An employer shall not be liable for 

damages pursuant to subdivision (a), based upon acts of an 

employee of the employer, unless the employer had advance 

knowledge of the unfitness of the employee and employed him or 

her with a conscious disregard of the rights or safety of others or 

authorized or ratified the wrongful conduct for which the 

damages are awarded or was personally guilty of oppression, 

fraud, or malice. With respect to a corporate employer, the 

advance knowledge and conscious disregard, authorization, 

ratification or act of oppression, fraud, or malice must be on the 

part of an officer, director, or managing agent of the corporation.” 

(Id., subd. (b).) “ ‘[S]ummary judgment “on the issue of punitive 

damages is proper” only “when no reasonable jury could find the 

plaintiff’s evidence to be clear and convincing proof of malice, 

fraud or oppression.” [Citation.]’ ” (Johnson & Johnson v. 

Superior Court (2011) 192 Cal.App.4th 757, 762.)

Martinez argues that a reasonable jury could find clear and 

convincing proof of malice, fraud, or oppression based on Chavez’s 

actions. Martinez further asserts that defendants’ “bare legal 

conclusion that Chavez and Algazi were not officers or managing 
38

agents” is insufficient to meet their burden on appeal,

10 and 

further argues that the owner of L.A. Hardwood, Doron Gal,

ratified Chavez’s conduct because Algazi spoke with him before 

she terminated Martinez’s employment. We disagree. 

“[T]o establish that an individual is a managing agent, a 

plaintiff seeking punitive damages must show that ‘the employee 

exercised substantial discretionary authority over significant 

aspects of a corporation’s business.’ [Citation.] In this context, 

‘corporate policy’ refers to ‘ “formal policies that affect a 

substantial portion of the company and that are of the type likely 

to come to the attention of corporate leadership.” ’ [Citations.]”

(CRST, Inc. v. Superior Court (2017) 11 Cal.App.5th 1255, 1273.)

Although Martinez argues that defendants failed to put 

forth any evidence that Chavez was not a managing agent, she 

“bears the burden of establishing error on appeal, even though 

defendants had the burden of proving their right to summary 

judgment before the trial court.” (Arnold v. Dignity Health, supra, 

53 Cal.App.5th at p. 423.) Martinez does not identify any

substantial evidence that Chavez was an officer, director or 

managing agent of L.A. Hardwood. Further, and contrary to her 

assertion, defendants did more than assert the bare legal 

conclusion that Chavez was not a managing agent. Chavez stated 

in his declaration that he does not make and has never made 

corporate policy for L.A. Hardwood and that his role is limited to 

supervising employees that work in his location and ensuring 

that customers receive the products and services they need. The

10 Notwithstanding this contention, it does not appear that L.A. 

Hardwood has ever disputed that Algazi was an officer of L.A. 

Hardwood.
39

owner of L.A. Hardwood submitted a declaration stating the 

same. Martinez does not identify any evidence contradicting 

these statements. 

We further agree with defendants that Martinez’s 

concession that Algazi did not hold any discriminatory or 

retaliatory intent defeats her claim that a punitive damages 

award could be based on Algazi’s decision to terminate Martinez’s 

employment. Similarly, although Algazi testified that she told

Gal, the owner of L.A. Hardwood, about the fax incident and that 

she was going to speak with Martinez, there is no evidence that 

he expressed any opinion about the matter. Even if Gal endorsed 

Algazi’s actions, it is undisputed that Algazi did not act in a 

discriminatory manner. Accordingly, there are no triable issues of 

material fact as to whether L.A. Hardwood is properly subject to 

punitive damages.

2. The court’s evidentiary rulings do not require reversal. 

Martinez contends that the court committed reversible 

error with respect to its rulings on objections to her declaration 

and the declaration of Carolina Juarez, who was a customer 

service representative at the Pacoima location. We conclude that, 

to the extent the court erred in its rulings, any errors were not 

prejudicial and do not require reversal. 

2.1. Standard of Review

Martinez contends that Pipitone v. Williams (2016) 244 

Cal.App.4th 1437 and Reid v. Google, Inc. (2010) 50 Cal.4th 512,

among other cases, support that the de novo standard of review 

should apply to the trial court’s evidentiary rulings on summary 

judgment. In Reid, the Supreme Court applied the de novo 

standard of review to evidentiary objections on which the trial 
40

court had failed to rule, reasoning that “because there was no 

exercise of trial court discretion, the Court of Appeal had no 

occasion to determine whether the trial court abused it.” (Reid, at 

p. 535.) The Supreme Court expressly declined to consider 

“whether a trial court’s rulings on evidentiary objections based on 

papers alone in summary judgment proceedings are reviewed for 

abuse of discretion or reviewed de novo.” (Ibid.) “[T]he weight of 

authority since Reid supports application of the abuse of 

discretion standard. Cases considering this question and applying 

the abuse of discretion standard after Reid have been published 

by the First District, Second District, Third District, Fourth 

District (Division One), Fifth District, and Sixth District— in 

other words, essentially every district of the appellate courts of 

the State of California . . . .” (Doe v. SoftwareONE, Inc. (2022) 85 

Cal.App.5th 98, 103, fn. omitted; LAOSD Asbestos Cases (2020) 

44 Cal.App.5th 475, 485 [“The weight of authority in this state is 

that we apply an abuse of discretion standard when we review 

trial court evidentiary rulings.”].) 

As courts have observed, “application of the abuse of 

discretion standard is eminently sensible in light of the practical 

realities of evidentiary objections in summary judgment 

proceedings.” (Doe v. SoftwareONE, Inc., supra, 85 Cal.App.5th

at p. 103; cf. Ducksworth v. Tri-Modal Distrib. Servs. (2020) 47 

Cal.App.5th 532, 544, reversed on other grounds in Pollock v. TriModal Distribution Services, Inc. (2021) 11 Cal.5th 918.) Given 

the large number of evidentiary objections that frequently 

accompany summary judgment motions, “trial courts typically 

rule on evidentiary objections in summary fashion, which often 

prevents us from determining the precise nature (i.e., principally 

legal or factual) of the trial court’s ruling. And rulings on 
41

evidentiary objections often ‘involve trial courts making 

qualitative and sometimes equitable determinations,’ which are 

the sort of decisions we typically review for abuse of discretion.

[Citation.]” (Doe, at pp. 103–104; cf. Ducksworth, at p. 544 

[“Because of the daunting complexity, volume, and pace of [the 

trial court’s] decisionmaking task, the latitude implied by the 

abuse-of-discretion standard thus does make ‘great sense.’ 

[Citation.]”].)

We will follow the weight of authority and apply the abuse 

of discretion standard. Under this standard, “[a]n ‘erroneous 

evidentiary ruling requires reversal only if “there is a reasonable 

probability that a result more favorable to the appealing party 

would have been reached in the absence of the error.” [Citation.]’ 

[Citation.]” (Daimler Trucks North America LLC v. Superior 

Court (2022) 80 Cal.App.5th 946, 960.)

In addition to objecting to the Martinez declaration on 

relevancy, foundation, and hearsay grounds, defendants objected 

to substantial portions of her declaration on the grounds that it 

was inconsistent with her deposition testimony, citing D’Amico v. 

Board of Medical Examiners (1974) 11 Cal.3d 1 (D’Amico).

In D’Amico, our Supreme Court concluded that, “when 

discovery has produced an admission or concession on the part of 

the party opposing summary judgment which demonstrates that 

there is no factual issue to be tried, certain of those stern 

requirements applicable in a normal case are relaxed or altered 

in their operation.” (D’Amico, supra, 11 Cal.3d at p. 21.) The

court observed that, in King v. Andersen (1966) 242 Cal.App.2d 

606, “the rule providing for liberal construction of 

counteraffidavits was held not to require reversal of a summary 

judgment for defendants where the plaintiff in an assault case, 
42

although having stated in his counteraffidavit that unnecessary 

force was used, nevertheless had stated in a previous deposition 

that no force was used.” (D’Amico, at p. 21.) It held that, 

“ ‘[w]here . . . there is a clear and unequivocal admission by the 

plaintiff, himself, in his deposition . . . we are forced to conclude 

there is no substantial evidence of the existence of a triable issue 

of fact.’ ” (Ibid., quoting King, at p. 610.) The Supreme Court also 

cited Newport v. City of Los Angeles (1960) 184 Cal.App.2d 229, in 

which the opposing party challenged an affidavit submitted by 

the moving party on the ground that it contained facts not within 

the personal knowledge of the moving party, and noted that the 

affidavit was held to be sufficient where the moving party 

incorporated therein verified admissions of the opposing party. 

(D’Amico, at pp. 21–22, citing Newport, at p. 236.)

Thus, “[t]he D’Amico rule is about the evidentiary strength 

of admissions by a party and applies ‘when discovery has 

produced an admission or concession [by] the party opposing 

summary judgment.’ [Citation.] Those admissions ‘have a very 

high credibility value’ and ‘should receive a kind of deference not 

normally accorded evidentiary allegations in affidavits.’ 

[Citation.]” (Forest Lawn Memorial-Park Association v. Superior 

Court (2021) 70 Cal.App.5th 1, 13.) “In a nutshell, the [D’Amico] 

rule bars a party opposing summary judgment from filing a 

declaration that purports to impeach his or her own prior sworn 

testimony.” (Scalf v. D. B. Log Homes, Inc. (2005) 128 

Cal.App.4th 1510, 1522.) However, “[w]hile the D’Amico rule 

permits a trial court to disregard declarations by a party which 

contradict his or her own discovery responses (absent a 

reasonable explanation for the discrepancy), it does not 

countenance ignoring other credible evidence that contradicts or 
43

explains that party’s answers or otherwise demonstrates there 

are genuine issues of factual dispute.” (Id. at pp. 1524–1525.)

There is dispute as to the appropriate standard of review 

with respect to rulings under D’Amico. In Harris v. Thomas Dee 

Engineering Co., Inc. (2021) 68 Cal.App.5th 594, the court 

concluded that “D’Amico does not state a rule regarding the 

admissibility of evidence; instead, the case provides guidance in 

determining whether a declaration that contradicts prior 

discovery responses is sufficient to create a triable issue of fact.”

(Id. at p. 604, fns. omitted.) The court thus “disagree[d] with 

statements in prior published cases that may be read to suggest 

D’Amico states a rule regarding the admissibility of evidence.” 

(Ibid., fn. 7.) Because the “ ‘[t]he existence of a triable issue of 

fact is a legal question that we review de novo[]’ [citations],” the 

court in Harris reviewed de novo the trial court’s conclusion that 

a declaration was insufficient to establish a triable issue of fact 

under D’Amico. (Ibid.) In contrast, in Mackey v. Trustees of 

California State University (2019) 31 Cal.App.5th 640, the court 

held the abuse of discretion standard of review applied to the 

trial court’s rulings on ‘ “evidentiary objections” ’ under D’Amico. 

(Id. at pp. 657, 659.) Without deciding which standard is correct, 

we will review the court’s rulings on objections made on D’Amico

grounds under the de novo standard. 

2.2. Martinez did not waive her ability to challenge 

the court’s evidentiary rulings.

Before reaching the merits of the evidentiary objections, we 

address defendants’ assertion that Martinez has waived her 

contention that the trial court’s evidentiary rulings were an 

abuse of discretion because she failed to respond to their

objections below. We reject this claim. “A party that objects to 
44

evidence presented on a motion for summary judgment must 

either timely file separate written objections or object orally at 

the hearing. [Citations.] ‘Evidentiary objections not made at the 

hearing shall be deemed waived.’ (§ 437c, subd. (b)(5).) But 

neither section 437c nor the California Rules of Court require a 

party to file written opposition to the opposing party’s objections 

or risk waiver. [Citation.]” (Serri, supra, 226 Cal.App.4th at 

p. 851, fn. 11; Jane IL Doe v. Brightstar Residential Inc. (2022) 76 

Cal.App.5th 171, 176 [there is no rule that “extend[s] the 

forfeiture rule to require the proponent of evidence at the 

summary judgment stage to file written opposition to evidentiary 

objections”]; Greenspan v. LADT LLC (2010) 191 Cal.App.4th 

486, 526 [no authority suggests that responses to objections must 

be made in the trial court to preserve a challenge to its rulings on 

appeal].)

2.3. The court did not commit reversible error with 

respect to its evidentiary rulings on the Martinez 

declaration.

We conclude that there is no reasonable probability that a 

result more favorable to Martinez would have been reached in 

the absence of any errors committed by the trial court in its 

evidentiary rulings. (Daimler Trucks North America LLC v. 

Superior Court, supra, 80 Cal.App.5th at p. 960.)

Objections 1 through 3 concern Martinez’s discussion with 

Chavez on April 3. Defendants argue that her declaration is 

inconsistent with her deposition and thus was properly excluded 

under D’Amico. They further point out that Martinez’s

statements in her declaration that she asked either to come in 

late, leave early, or to take the day off to confirm her pregnancy 

are inconsistent with her deposition testimony that she asked for 
45

“at least a day off” to confirm her pregnancy. Martinez also stated 

in her declaration that Chavez demanded that she confirm the 

pregnancy, whereas Martinez testified that, when she informed 

Chavez that the pregnancy was not confirmed, Chavez stated 

that the home test might be mistaken and she responded that she 

needed to have it confirmed. 

We need not decide whether the court properly disregarded 

this evidence under D’Amico. Even if the court had erred in its 

rulings with respect to these objections, there is no reasonable 

probability that Martinez would have obtained a more favorable 

result had this evidence been admitted. The declaration 

statements at issue were largely duplicative of her deposition 

testimony, albeit with the minor inconsistencies discussed. 

Moreover, and more importantly, there is no substantial evidence 

to support that Martinez was disabled because of her pregnancy

before her pregnancy was confirmed by a health care provider. 

Thus, even if her declaration further supports that Chavez did 

not agree to allow Martinez to have her pregnancy confirmed 

during work hours (a claim that was already in the record via 

Martinez’s deposition testimony), Martinez would not have been 

more likely to succeed on her claims for failure to accommodate or 

to engage in a good faith interactive process.

We likewise find no reversible error with respect to 

objections 4 and 5. Objection 4 pertained to Martinez’s statement 

that Chavez was abrasive when she asked for time off to go to her 

prenatal appointments and did not permit her to take the whole 

day off for her appointments. Objection 5 addressed Martinez’s 

statement describing her complaint to Palma regarding Chavez. 

Martinez testified that, other than Chavez’s reaction to her 

pregnancy on April 3, she had no issue with how he treated her in 
46

relation to her pregnancy. Martinez also testified that the reason 

that she did not like working with Chavez after she revealed her 

pregnancy was solely because of his reaction to her pregnancy on 

April 3 and that she complained about that reaction to Palma. 

We conclude that Martinez’s statements in her declaration that 

Chavez was abrasive after April 3 and she complained to Palma 

about his abrasiveness directly contradict her deposition 

testimony, and thus were properly disregarded under D’Amico. 

Moreover, even if the court erred in disregarding evidence that 

Chavez was abrasive, Martinez’s deposition testimony establishes 

that she did not find this conduct to be “ ‘subjectively offensive’ ” 

as is required for conduct to be actionable harassment. (Hughes v. 

Pair (2009) 46 Cal.4th 1035, 1044.) Apart from her claim that 

Chavez was abrasive and rude after April 3, the declaration 

statements addressed by these objections are duplicative of 

deposition testimony that was admitted. Thus, it is not 

reasonably probable that the outcome would have been different 

had this testimony been considered.

Objections 6 and 7 addressed Martinez’s claim that Chavez 

was rude towards her and yelled at her for going to Palma with 

her issues. As discussed, according to her deposition testimony, 

the only comments regarding her pregnancy that Martinez found 

offensive were those made April 3. When asked whether she was 

offended by Chavez’s conduct in any other way, Martinez 

identified his statement on one occasion that she was doing more 

talking than working to be offensive, but testified that Chavez 

did not say anything else to her that she found upsetting or 

disliked. Thus, we conclude that Martinez’s claim that Chavez 

snapped and yelled at her and that she cried on another occasion 
47

directly contradicts her deposition testimony, and that the trial 

court did not err in disregarding this evidence under D’Amico. 

Objection 8 addressed Martinez’s statement that she asked 

Chavez for a transfer to the Pacoima location and he denied it.

L.A. Hardwood argues that the court properly disregarded this 

evidence because Martinez unequivocally testified that she did 

not request a transfer to Pacoima. We agree that these claims are 

contradictory and mutually exclusive under D’Amico. Martinez 

argues that testimony from Chavez and Algazi supports that 

Martinez did at some point inquire about a transfer, but that 

there were no positions open in Pacoima. Algazi recalled that 

Martinez’s request for a transfer was in response to an issue that 

arose between Martinez and another coworker who had claimed 

to be sick but whom Martinez saw posting about a vacation to 

Mexico. Even if we assume the court erred in disregarding this 

evidence because there is other evidence in the record that 

supports that Martinez at some point sought a transfer, we see 

no reasonable probability that Martinez would have obtained a 

better outcome had this evidence been considered. Other evidence

in the record supported that Martinez was not happy with 

Chavez as a manager after his reaction to her pregnancy. 

Objection 9 concerned Martinez’s statement that when her 

cash box was found to be $150 short, she was told to put her own 

money in to make it whole, which she was not required to do 

under company policy. Even if the court erred in excluding this 

evidence, it was cumulative of evidence already before the court. 

In deposition testimony relied upon in her separate statement of 

material facts, Martinez stated that she had told Chavez, “I told 

you that the money was missing, and you told me to put it back. 

So even after you made me put it back out of my own pocket, you 
48

are still going to write me up for a warning for it.” Similarly, in 

her separate statement of material facts, Martinez relied on

deposition testimony from Algazi in which Algazi stated that she 

thought she recalled that Martinez had paid the money out of her 

own pocket and that they remedied that issue when they 

terminated her employment, and that it was company policy that 

Martinez was not responsible for that money. Thus, there is no 

reasonable probability that a result more favorable to Martinez

would have been reached in the absence of the error.

Objection 10 concerned Martinez’s description in her 

declaration of the meeting in which she was terminated, which 

was almost entirely duplicative of the version of events set forth 

in her deposition testimony, except for her claim that Chavez 

spoke during the meeting, when she previously testified that he 

said nothing. The court properly disregarded the portion of this 

statement that directly contradicted Martinez’s deposition 

testimony. The remainder of the statement was cumulative of 

other evidence, and thus there is no reasonable likelihood that 

the declaration statement would have altered the outcome. 

Objection 11 addressed Martinez’s claim in her declaration 

that she did not destroy any application that was legible and not 

a duplicate, while Objection 12 addressed Martinez’s statement 

that she never saw Reyes or Arreola look in her trash can or 

remove documents from it. To the extent that either objection 

was improperly granted, the error was harmless. As we have 

stated, the issue in this case is not whether L.A. Hardwood’s 

decision to terminate Martinez’s employment was wise or correct, 

but whether the decision was discriminatory. (Guz, supra, 24 

Cal.4th at p. 358.) Thus, it is not probable that this evidence 

would have resulted in a more favorable outcome for Martinez. 
49

Moreover, Martinez also testified that she had never crumpled or 

thrown away an application that was legible. 

Objection 14 concerned Martinez’s statements that she was 

unable to take rest breaks. We agree with defendants that 

Martinez’s statement in her declaration that Chavez, through 

Chavarria, told the customer service representatives that they

could not take their rest breaks directly contradicts Martinez’s

deposition testimony and was properly disregarded under 

D’Amico. Martinez testified that no one ever told her she could 

not take her rest breaks, but she felt that she had to because 

Chavarria would say so. When expressly asked who told her that 

she had to keep working, Martinez stated it was Chavarria, not 

Chavez. Although the remainder of the evidence subject to this

objection was not inconsistent with her prior deposition 

testimony, we conclude that any error in excluding this evidence 

was harmless because it was cumulative of other evidence before 

the court.

Finally, with respect to objections 15 and 16, which pertain 

to Martinez’s claim that she suffered emotional and mental 

injuries and lost wages, we agree with defendants that any error 

in excluding this evidence was not prejudicial because it did not 

go to the merits of her claims, but to the question of damages.

2.4. The court did not commit reversible error with 

respect to its evidentiary rulings on the Juarez 

declaration.

We conclude that the court did not abuse its discretion in 

excluding statements made in the Juarez declaration. Juarez

stated that she “became aware” or understood various facts 

relating to Martinez’s employment and the treatment of 

employees in the downtown Los Angeles office, despite not 
50

working in that office. She also stated that she “became aware”

that a driver for L.A. Hardwood was injured on the job and that 

Chavez told him that he should tell a doctor that he was injured 

on his own time. Juarez did not explain the basis for this 

knowledge in her declaration, but her deposition testimony 

confirms that it was based on discussions with other people, not 

her personal observations. The trial court did not abuse its 

discretion in excluding this evidence. (See People v. Montoya

(2007) 149 Cal.App.4th 1139, 1150 [“[t]o testify, a witness must 

have personal knowledge of the subject of the testimony”]; Evid. 

Code, § 702, subd. (a) [“Subject to Section 801 [expert testimony], 

the testimony of a witness concerning a particular matter is 

inadmissible unless he has personal knowledge of the matter.”].)

Juarez further stated that employees with which she spoke 

stated that they thought that Martinez’s employment was 

terminated because of her pregnancy. Statements “made other 

than by a witness while testifying at the hearing” and “offered to 

prove the truth of the matter stated” are hearsay and, “except as 

provided by law,” are inadmissible. (Evid. Code, § 1200, subds. 

(a), (b).) Martinez does not argue that any hearsay exception 

applied to these statements.

According to her deposition testimony, Juarez’s statement

in her declaration that employees regularly ripped up illegible 

and duplicate applications was based solely on her experience at 

the Pacoima location. In any event, the court did not abuse its 

discretion in concluding that it is irrelevant to the issue of 

whether Martinez’s termination for purportedly destroying an 

original and legible application and failing to provide any 

explanation was pretextual. Similarly, her statement that L.A. 

Hardwood employees were unable to take rest breaks was based 
51

solely on her experience in the Pacoima office. The court could 

reasonably conclude that this evidence was irrelevant to the issue 

of whether Martinez was able to take breaks in the downtown 

Los Angeles office. Finally, the court’s exclusion of Juarez’s

statement that another pregnant employee had been terminated 

at the Pacoima location on relevancy grounds was not 

unreasonable. Juarez did not discuss the circumstances of that 

employee’s termination in her declaration but testified that she 

did not know whether the employee had done anything wrong. 
52

DISPOSITION

The judgment is affirmed. Plaintiff and appellant Melissa 

Martinez’s request for judicial notice, filed June 22, 2022, is 

denied. Respondents and defendants L.A. Hardwood Flooring, 

Inc. and Ray Chavez shall recover their costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

LAVIN, Acting P. J.

WE CONCUR:

EGERTON, J.

BENKE, J.*

* Retired Associate Justice of the Court of Appeal, Fourth Appellate 

District, assigned by the Chief Justice pursuant to article VI, section 6 

of the California Constitution.