Filed 7/31/23 Ortega v. Carso n W ild Wings CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRI CT

DIVISION ONE

JASMIN ORTEGA

,

Plaintiff and Respondent

,

v.

CARSON WIL D WINGS, LLC

,

Defendant and Appellant

. B 309931

(Los Angeles County Super. Ct. No. BC677388 )

APPEAL from a judgment of the Superior Court of Los Angeles County

, Terry A. Green , Judge

. Affirmed in part and reversed in part

. Troutm an Pepper Hamilton Sanders, Keith J. Barnett and
Elizabeth Holt Andrews for Defendant and Appellant

. Lebe Law, Jonathan M. Lebe and Zachary T. Gershman for
Plaintiff and Respondent

.

___________________________________2 Jasmin Ortega, a server in a restaur ant owned by Carson Wild Wings , LLC (C W W), sued her employer for tort claims and
Labor Code violations on a theory of whistleblower retaliation. After a jury trial, the court entered judgment for Ortega and awarded her punitive damages and attorney fees. CW W
contends insufficient evidence supports the verdict and damages award, and punitive damages and an award of attorney fees w ere improper

. We conclude insufficient evidence supports the verdict. Accordingly, we affirm the judgment on an undisputed cla im but
otherwise reverse both the judgment and attorney fee award . We
do not reach CWW ’ s other arguments.
BACKGROUND
I

. Ortega ’ s Employment CWW owns and operates Buffalo Wild Wings restaurant. Beginning in 201 3 or 2014 , Ortega worked at the

restaurant as a server. She was well regarded by her peers and
CWW ’ s general manager , but in 2015 and 2016 received six
corrective action memorandums from her managers and had been suspended once.
O n March 6, 2017 , Sandra Reisz became the general manager of the restau rant where Ortega worked.
A. March 2017: Initial Reisz Investigation
In late March 2017, Shava Willis , a shift manager, notified Reisz that she suspected Ortega of circumventing the

restaurant ’ s policy for sharing tips among the staff, and of manipulatin g a customer loyalty program to take advantage of
unused benefits. Reisz initiated an investigation

.3 B

. March 31 or April 6, 2017: Water b ombing
Incident On March 31 or April 6, 2017 ( the date was contested ),

a bout a month after Reisz became the manager

, Ortega “ water

bombed ” “ Tyler, ” a trainee s erver , as follows : CWW ’ s servers used a computer system , called a “ Point

- of

Sales ” (POS) system, to keep track of tables

, orders , checks, and tips

. A server would log onto the system , mak e notations about
orders made and filled , and log off. If a server failed to log off, the next server could make notations concerning the prior

server ’ s tables under that server ’ s still

- open session

. Waterbombing involve d going onto another server ’ s still

open session , opening entries relating to that server ’ s tables, and making notation s that water had been ordered when it had not

. The first server would thereafter have to “ check out ” the water
orders

, i.e., cancel or mark them as having been filled, before closing out the se ssion.
O n March 31 or April 6, 2017, Tyler, a new server, inadvertently failed to log himself out of the POS system near the
end of his shift

. To “ teach him a lesson, ” Ortega used Tyler ’ s still

- open session to place multiple simultaneous orders for water

at his assigned tables to make him think he was responsible for fulfilling a rush of new orders, when in reality no one had ordered anything and indeed, most or all of his tables were empty. The prank forced Tyler and Reisz to rush to clear the fake wate r orders before his shift ended

. C

. April 6, 2017: Corrective Action Memo The waterbombing incident infuriated Reisz. On April 6, 2017, she drafted a “ corrective action ” memorandum, dated April 6, 2017, notifying Ortega she was being fired. The memoran dum4

stated, “ This serves as your . . . Notice of Termination, ” and gave
three reasons: (1) “ On 3/27/17 Jasmin Ortega was caught manipulating the tip out procedure. Ms. Ortega added the total transaction amount plus the tip amount together, inserted sai d number into the transaction amount line and closed the tip out to cash thereby circumventing the tip tracking system and avoiding the need to pay taxes on the tip ” ; (2) “ On 4/6/17 New server Tyler failed to exit out of his
screen on the POS so Jasmin fe lt the need to ‘ teach the arrogant
new server a lesson. ’ Jasmin opened 20 tables under Tyler ’ s name. Each table just had a water on the table AKA a ‘ water bomb

. ’ Jasmin ’ s stunt almost cost us a meal break violation as Tyler only had a few minutes to che ck out ” ; (3) “ Jasmin has been written up on 3/15/17 for a break violation; on 12/16/16 for tardiness and poor attitude; on 10/19/16 for leaving work without permission; on 10/15/16 for a break violation; on 4/10/16 for a no call no show; on 5/7/15 for dis orderly conduct with a guest and on 3/18/15 for poor guest service ” ; Reisz emailed the memo to CWW ’ s district manager and human resources department, requesting approval to terminate Ortega ’ s employment and asking for her final paycheck to be cut.
Reisz t hen went home for the day

. D. April 6 and 7, 2017: Ortega ’ s Complaints Regarding Meal Breaks
Late r that evening, Willis, Ortega ’ s shift manager, directed Ortega to clock out for her meal break but work through the
break and take one later. At around mi dnight, Ortega complained to Willis about not receiving a meal break.5 The next day, o n April 7, 2017, Ortega was again told to work through her scheduled meal break. She complained to Devin McLothan, another shift manager, about missed breaks
and other w age and hour violations.
E. April 10, 2017: Termination On April 9, 2017, in response to Reisz ’ s corrective action

memo, C W W suspended Ortega before her shift was to begin. On April 10, 2017, Reisz presented the corrective action memo to Ortega. The mem o bore three signature lines, for the employee, a manager, and a witness. Ortega refused to sign it

. Reisz and a witness signed the memo and dated it “ 4/10/17. ”
II. Lawsuit
A. Complaint On September 26, 2017, Ortega sued CWW and two of its executives, Edward Barnett, and Karim Webb, alleging : violation
of “ the whistle

- blowing law ” pursuant to Labor Code section
1102.5 ; “ retaliation for engaging in a protected activity ” pursuant

to Labor Code section 98.6 ; wrongful termination in violation of public pol icy; intentional and negligent infliction of emotional
distress ( IIED and NIED) ; and “ failure to produce [Ortega ’ s] personnel file. ”
The trial court denied two successive C W W motions for summary judgment or adjudication and granted Ortega ’ s unopposed moti on for summary adjudication of her cause for failure to produce a personnel file . T he matter went to jury trial on Ortega ’ s other causes of action.
B. Trial
At trial Ortega ’ s theory was that the timing of her complaints about wage and hour violations on April 6 and April 7, 2017, and CWW ’ s decision to fire her on April 10, constituted6

evidence that the firing was in retaliation for the complaints. CWW had a history of retaliating against employees who ask that the company follow labor laws, she argued, and no important decisions were made without the knowledge and approval of Webb and Barnett, CWW ’ s owners. Several C W W employees, including Reisz, testified that Ortega was an excellent but troubled employee. Ortega testified that she was denied meal bre aks on April 6 and 7, 2017, and reported these wage and hour violations to her direct managers, Willis and McLothan. O ther employees
corroborated that missed meal breaks had occurred before at the restaurant. Ortega testified she was suspended soon after making her complaint s , and was terminated a couple days later. Ortega denied that she falsified her tips or manipulate d
CWW ’ s tip

- out procedure

, and said C W W had used this same excuse to fire another employee, Erica Bustarde, after she also reported bei ng forced to work off

- the

- clock. Ortega testified that her prior write

- ups were in the distant past and had nothing to do with her termination

, and one was mistaken in any event

. S he also asserted that CWW failed to follow its progressive discipline polic y when terminating her. Ortega admitted waterbombing Tyler, but testified she did

so on M arch 31, 2017, not April 6 , and anyway waterbombing

was common ly practice d at C W W to remind new servers to log
out of the POS system so the next server would not have to do so.
It was never a terminable offense. Four servers, Bustarde, Yessica Jasper, Julieta Hernandez,
and Monesha Sauve

, testified that CWW sometimes denied employees their meal breaks.7 Bustarde , a server at the restaurant when Reisz was the

manager, testified she was terminated in July 2017

, a week after reporting to the h uman r esources department about having been
forced to work off

- the

- clock

. Bustarde testified that CWW provided baseless reasons for her termination, including that she had improperl y closed a tab to avoid paying taxes on her tips and
had accumulated several prior write

- ups. Jasper testified that waterbombing was neither an unusual nor particularly intrusive or upsetting occurrence. However, she also testified, “ You wouldn ’ t do it a round the manager. ” She testified, “ I think that is a ridiculous reason to fire someone because if that was the case then they should fire the entire staff,
because we all did it. ” Jasper testified that in 2015 she was terminated after reporting C W W ’ s wa ge

- and

- hour violations to shift managers

. No witness testified that Reisz retaliated against them. For the defense, Willis and McLothan testified that neither Ortega nor anyone else ever missed a meal break, and Ortega never complained about missed meal b reaks. They testified they never told Reisz about any meal break issue. Around March 27, 2017, Willis began to suspect that Ortega was skirting the

restaurant ’ s tip sharing policy , and reported her suspicion to
Re i sz. McLothan testified that Reisz did n ot know what waterbombing was before Ortega waterbombed Tyler: “ [W]e had to explain it to her. ” Reisz testified that she considered waterbombing to constitute bullying, deserving termination: “ I was very angry. I was upset because I felt like it was ju st like a slap in the face to the new guy and I was trying very hard where I was hiring and8

trying very hard to get really good people in the restaurant. And it was, you know, it was a slap in my face. It was a slap in Ty ’ s face. It was

— I was upset. ”
R eisz testified she did not know about any meal break complaint when making the decision to fire Ortega

. W ithout consulting the other managers, she wrote the corrective action memorandum during her shift on April 6, 2017, emailed it to
CWW ’ s h uman r esource s manager on that date, then went home. This occurred before Ortega could have complained to other managers about missed breaks later that night and the next night. Reisz testified that when she fired Ortega, the server said nothing about having missed m eal breaks. She testified that

“ ultimately the termination occurred [because of] a culmination of things, . . . bullying an employee, having seven write

- ups in the file. It was sort of a sum of the whole is greater than the sum of the parts kind of situa tion. ”
C W W was unable at trial to substantiate Willis ’ s suspicions about Ortega ’ s tip

- sharing violations. Ortega admitted that Reisz ’ s corrective action memo was dated April 6, 2017, but testified that Reisz “ could [have] change[d] the dates ” on the term ination paperwork to cover her retaliation and create the false impression that she had made her decision before Ortega complained to Willis and Mc L oth a n

. Ortega also stated

, “ [I] t was common for [CWW] to alter records. ” (S he offered no support for eithe r allegation

. ) Ortega ’ s counsel argued to the jury that CWW failed to produce the email Reisz sent CWW ’ s h uman r esources manager on April 6, 201 7 , from which the jury should infer that Reisz
decide d to fire Ortega not after the waterbombing incident but

a fter her complaints to Willis and McLothan

.9 C

. Verdict and Post

- Verdict Proceedings At the close of evidence, the court granted a directed verdict in favor of Webb and Barnett on the ground that no evidence suggested they had knowledge of the circumstan ces of Ortega ’ s termination. The jury found for Ortega on all claims and awarded her $52,000 in past lost earnings, $20,000 in future lost earnings, and $128,000 in past noneconomic loss, including physical pain and mental suffering, for a total of $200,0 00. With respect to punitive damages, the verdict form asked
whether “ C W W ” “ engage[d] in conduct with malice, oppression, or
fraud. ” The verdict form requested no finding as to any
individual a gent or employee of CWW

. The jury nevertheless concluded tha t CWW engaged in conduct with malice, oppression or fraud, and awarded Ortega $100,000 in punitive damages. On October 27, 2020, t he trial court entered judgment for Ortega in the amount of $301,500 , comprising the jury award on causes of action that went to trial, plus $1,500 in statutory damages for the undisputed claim involving Ortega ’ s personnel
file. The judgment erroneously stated that the jury found that

“ an agent or employee of Defendant Carson Wild Wings, LLC engage[d] in conduct with malice, op pression, or fraud. ” As noted, however, the verdict form made no mention of any C W W agent or employee.
CWW moved for judgment notwithstanding the verdict (JNOV) or, in the alternative, a new trial , both of which the trial
court denied

. On January 5, 20 21, the court awarded Ortega attorney
fee s in the amount of $291,948.00

.10 DISCUSSION
C W W contends no substantial evidence supports the judgment because uncontested evidence established that Reisz did not know about Ortega ’ s complaints about missed meal
br eaks when deciding to fire her , and therefore could not have retaliated against her

. We agree.
A. Legal Framework An employer may not retaliate against an employee for complaining about the employer ’ s noncompliance with any legal obligation or for exerci sing any right afforded by law. (Labor Code, § § 98.6, 1102.5, subd. (c).) 1
A whistleblower employee who has suffered an adverse employment action proves a retaliation claim by establishing by a preponderance of the evidence that retaliation “ was a contrib uting factor ” in the adverse action. (§ 1102.6.) After the employee does so, the employer must demonstrate by clear and convincing evidence that it would have taken the same action “ for legitimate, independent reasons even if the employee had not engaged in [protected] activities. ” ( Ibid .; see Lawson v. PPG Architectural Finishes, Inc . (2022) 12 Cal.5th 703, 707 ( Lawson ) .) A section 1102.6 retaliation claim thus proceeds in two stages

. “T he first prong of the statute

. . . tells us what plaintiffs

must prove to establish liability, and by what evidentiary standard. Specifically, plaintiffs must show, by a preponderance of the evidence, that whistleblowing was a contributing factor in the employer ’ s decision.” ( Lawson

, supra , 12 Cal.5th at p. 712.)

1 Undesignated statutory references will be to the Labor Code.11

Th e second prong of the statue codifies the employer’s “same

decision defense.” ( Ibid .)

“ When a party contends insufficient evidence supports a jury verdict, we apply the substantial evidence standard of
review. [Citation.] ‘ “ [T]he power of [the] appell ate court begins
and ends with the determination as to whether there is any
substantial evidence contradicted or uncontradicted which will support the [verdict]. ” [Citations.] ’ [Citation.] We must ‘ view the evidence in the light most favorable to the pr evailing party, giving it the benefit of every reasonable inference and resolving
all conflicts in its favor. . . . ’ ” ( Wilson v. County of Orange (2009) 169 Cal.App.4th 1185, 1188 .)
B. Insufficient Evidence Supports Causation Here, no evidence suggested that Ortega’s complaining about missed meal breaks was a contributing factor in CWW’s
decision to fire her . On the contrary, t he uncontroverted evidence
established that Reisz decided to fire Ortega before Ortega complained. Reisz testified, and other ev idence established, that Reisz decided to terminate Ortega in the early evening of April 6, 2017, before Ortega complained to Willis later that evening and to McLothan on April 7. Reisz drafted her notice of corrective action in the early evening and emai led it to a CWW division manager, who approved the termination. She then left work. No evidence suggested that Reisz was at the restaurant when Ortega complained to either Willis or McLothan, or that those supervisors communicated Ortega’s complaints to Reisz. O n the contrary, t he three managers

— Reisz, Willis and McLothan

— all
testified that no one told Reisz about Ortega’s complaints, and Reisz testified that Ortega mentioned nothing about them on12

April 10. Ortega herself never testified that she told R eisz about her complaints.
It wa s simply impossible for Reisz to retaliate against Ortega because of a complaint Or tega made after the alleged
retaliation

. Ortega purports to derive an inference of retaliation from a partial sequence of events: She com plained to Willis on April 6, 2017, and to McLothan on April 7, and was fired on April 10. However, Ortega ignores the determining part of the sequence:
Reisz decided to fire Ortega early on April 6, 2017, before Ortega complained to Willis, and the term ination on April 10 proceeded directly from that April 6 decision. No evidence suggested, for example, that between April 6 and 10 Reisz changed her mind about firing Ortega, then learned about her complaints and changed it back.
Because no evidence sugge sts that Reisz knew about Ortega’s complaints even as late as April 10, 2017, when Reisz presented her with the termination papers , t he sequence of events by itself fail ed to fulfill Ortega’s burden of showing retaliation was a contributing factor in Orteg a’s termination. Ortega argues that her testimony that the waterbombing happened earlier than the date stated in Reisz’s memo (i.e., on March 31, 2017, rather than April 6) constituted substantial evidence that “the timeline on the termination memo was
in correct.” We disagree. The relevant timeline concerns the date of the memo itself, not the dates it recite s . A discrepancy in the
memo’s recitation of dates does not refute the unrebutted evidence that Reisz wrote the memo before Ortega complained
about missed meal breaks.13 Ortega relies on her testimony that Reisz “could [have] change[d] the dates” on the corrective action memorandum to conceal her retaliatory motive and create the false impression that she made her decision before Ortega complained to W illis and McLothan. Ortega also testified “it was common for [CWW]
to alter records.” But no evidence or explanation supported these assertions. Bare speculation is not evidence. ( Advent, Inc. v. National Union Fire Ins. Co. of Pittsburgh, PA (2016) 6 Cal.App.5th 443, 459; Wiz Technology, Inc. v. Coopers & Lybrand LLP (2003) 106 Cal.App.4th 1, 11.) Ortega argues that Reisz’s failure to produce the email she

sent to CWW’s h uman r esources manager on April 6, 2017, supports an inference that the email was sent later, i.e., after Ortega complained to Willis and McLothan. (See Evid. Code, § 412 [failure to produce strong evidence supports the inference that weaker evidence on the same issue is untrustworthy].) But Ortega adduces nothing in the record sugge sting CWW was called upon to produce the email. In any event, Reisz sending the email later than April 6, 2017, would not establish that she
falsified the date on the corrective action memorandum itself.
Nor would it establish that she knew about Ortega’ s complaints before sending the memo

. C. Pretext Alone Does Not Establish Causation Ortega glosse s over the causation timeline, instead asserting that Reisz’s pretextual justifications for firing her, and CWW’s alleged “culture of retaliation

, ” constitute evidence of
retaliation. In this vein, Ortega argues the reasons Reisz gave for firing
her were false , because: (1) Ortega did not violate CWW ’ s tip

- out14

procedure ; (2) other employees had not been terminated for waterbombing severs ; (3) the waterbombing h ere occurred on March 31, 2017, not April 6, 2017 ; and (4) progressive discipline for her prior misconduct had resolved CWW ’ s concerns about that
conduct. Ortega also relies on the testimony of several servers that CWW denied employees their meal breaks, terminated servers after they complained, and gave pretextual reasons for doing so. She argues that this evidence established that CWW maintained a “retaliatory culture,” which shifted the burden to CWW to show it had a “legitimate, nonretaliatory” reason for firing her. We disagree. First, pretext alone does not establish retaliation. “[A] plaintiff’s showing of pretext, combined with sufficient prima facie evidence of an act motivated by discrimination, may permit a finding of discriminatory intent

. . . .” ( Guz v. Bechtel National,
Inc . (2000) 24 Cal.4th 317, 361 ( Guz ) .) Here, Ortega adduced no evidence of an act motivated by retaliation. Her only evidence was the sequence of events. But as discussed, the sequence fails:
E ven if Reisz’s stated rea sons for firing Ortega were false, and
even if she generally participated in CWW’s “ retaliatory culture ,” no evidence suggests either that Reisz knew about Ortega’s complaints or wrote the termination memo after she made them. Second, although w hen an empl oyer gives a pretextual reason for an adverse employment action it is reasonable to infer
the true reason was impermissible , that inference arises only when other, legitimate reasons have been eliminated. ( See Guz

, supra , 24 Cal.4th 317, at p. 381 (conc. & dis. opn. of Kennard, J.)

“ ‘ [W] e know from our experience that more often than not people do not act in a totally arbitrary manner, without any underlying15

reasons, especially in a business setting. Thus, when all legitimate reasons for rejecting an ap plicant have been eliminated as possible reasons for the employer ’ s actions, it is more likely than not the employer, whom we generally assume acts with some reason, based his decision on an impermissible consideration such as race [or age]

. ’ ” ( Ibid

. )
Here , Ortega failed to show that waterbombing could be
eliminated as a legitimate reason for her termination. N one of the testimony suggesting that other CWW employees tolerated waterbombing established that Reisz tolerated it, or that she participated in CWW’s retaliatory culture. On the contrary, McLothan testified that Reisz was unaware of the waterbombing practice before he explained it to her, and Reisz testified she considered waterbombing to be bullying. And none of the servers’ complaints about C WW’s unfair actions respecting them
mentioned Reisz as the actor. Because the evidence failed to eliminate all possible legitimate reasons for terminating Ortega’s employment, it fails to support an inference that it was m ore likely than not Reisz based h er decision on an impermissible
consideration.
D. Conclusion In sum, unrebutted evidence that Reisz did not know about Ortega’s complaints

, and drafted her corrective action
memorandum before she made the m , established that Reisz could
not have retaliate d against Ortega because of the complaints

. The jury ’ s finding that Reisz retaliated against Ortega , and therefore its verdict, were thus unsupported by substantial
evidence.16

E

. Other Contentions
CWW raises several further arguments: (1) No substantial

e vidence supports any other cause of action; (2) punitive damages were improper because the jury never found that CWW ’ s managing agent acted with malice, fraud, or oppression; (3) the damages award was unsupported by substantial evidence; and (4)
the attorn ey fees award was improper. We need not reach these arguments. Each of the causes of
action that went to trial was predicated on retaliation. For example, Ortega alleged no severe emotional distress resulting
from anything other than CWW ’ s retaliation

, and no wrongful
termination other than in retaliation to her meal break complaints

. Given our conclusion that no evidence supported Ortega ’ s claim of retaliation

, those other causes of action were similarly unsupported. The judgment as to all causes of a ction
that went to trial must therefore be reversed, along with the damages and attorney fee awards.
DISPOSITION The judgment is affirmed insofar as it awards Ortega $1

, 500 on her cause of action for failure to produce her personnel
file. Otherwise, the j udgment , along with the damages and fee
award s, are reversed

. Respondent is to recover costs on appeal.
NOT TO BE PUBLISHED

CHANEY, J.
We concur:

ROTHSCHILD, P. J. BENDIX

, J.