Filed 7/31/23 Ortega v. Carson Wild 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

JASMIN ORTEGA,

Plaintiff and Respondent,

v.

CARSON WILD WINGS, LLC,

Defendant and Appellant.

 B309931

 (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.

Troutman 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 restaurant owned by Carson 

Wild Wings, LLC (CWW), 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. CWW 

contends insufficient evidence supports the verdict and damages 

award, and punitive damages and an award of attorney fees were 

improper. We conclude insufficient evidence supports the verdict. 

Accordingly, we affirm the judgment on an undisputed claim 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 2013 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. 

On March 6, 2017, Sandra Reisz became the general 

manager of the restaurant 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 

manipulating a customer loyalty program to take advantage of 

unused benefits. Reisz initiated an investigation. 
3

B. March 31 or April 6, 2017: Waterbombing 

Incident

On March 31 or April 6, 2017 (the date was contested), 

about a month after Reisz became the manager, Ortega “waterbombed” “Tyler,” a trainee server, as follows:

CWW’s servers used a computer system, called a “Point-ofSales” (POS) system, to keep track of tables, orders, checks, and 

tips. A server would log onto the system, make 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 involved going onto another server’s stillopen session, opening entries relating to that server’s tables, and 

making notations 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 session. 

On 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 water 

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 memorandum 
4

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 said 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 felt 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 check 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 disorderly 

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 then went home for the day.

D. April 6 and 7, 2017: Ortega’s Complaints

Regarding Meal Breaks

Later 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 midnight, Ortega 

complained to Willis about not receiving a meal break. 
5

The next day, on 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 wage and hour violations. 

E. April 10, 2017: Termination

On April 9, 2017, in response to Reisz’s corrective action 

memo, CWW suspended Ortega before her shift was to begin.

On April 10, 2017, Reisz presented the corrective action 

memo to Ortega. The memo 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 policy; intentional and negligent infliction of emotional 

distress (IIED and NIED); and “failure to produce [Ortega’s] 

personnel file.”

The trial court denied two successive CWW motions for 

summary judgment or adjudication and granted Ortega’s 

unopposed motion for summary adjudication of her cause for 

failure to produce a personnel file. The 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, constituted 
6

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 CWW employees, including Reisz, testified that 

Ortega was an excellent but troubled employee. 

Ortega testified that she was denied meal breaks on April 6 

and 7, 2017, and reported these wage and hour violations to her 

direct managers, Willis and McLothan. Other employees 

corroborated that missed meal breaks had occurred before at the 

restaurant. Ortega testified she was suspended soon after

making her complaints, and was terminated a couple days later. 

Ortega denied that she falsified her tips or manipulated

CWW’s tip-out procedure, and said CWW had used this same 

excuse to fire another employee, Erica Bustarde, after she also 

reported being 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. She also asserted that CWW failed to 

follow its progressive discipline policy when terminating her.

Ortega admitted waterbombing Tyler, but testified she did 

so on March 31, 2017, not April 6, and anyway waterbombing

was commonly practiced at CWW 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 human resources department about having been 

forced to work off-the-clock. Bustarde testified that CWW 

provided baseless reasons for her termination, including that she 

had improperly 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 around 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 CWW’s wage-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 breaks. 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 

Reisz. 

McLothan testified that Reisz did not 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 just like a slap in the face to 

the new guy and I was trying very hard where I was hiring and 
8

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.”

Reisz testified she did not know about any meal break 

complaint when making the decision to fire Ortega. Without 

consulting the other managers, she wrote the corrective action 

memorandum during her shift on April 6, 2017, emailed it to 

CWW’s human resources 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 meal 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 situation.” 

CWW 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 termination paperwork to cover her 

retaliation and create the false impression that she had made her 

decision before Ortega complained to Willis and McLothan. 

Ortega also stated, “[I]t was common for [CWW] to alter records.” 

(She offered no support for either allegation.)

Ortega’s counsel argued to the jury that CWW failed to 

produce the email Reisz sent CWW’s human resources manager 

on April 6, 2017, from which the jury should infer that Reisz 

decided to fire Ortega not after the waterbombing incident but 

after 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 circumstances 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 $200,000. 

With respect to punitive damages, the verdict form asked 

whether “CWW” “engage[d] in conduct with malice, oppression, or 

fraud.” The verdict form requested no finding as to any 

individual agent or employee of CWW. 

The jury nevertheless concluded that CWW engaged in 

conduct with malice, oppression or fraud, and awarded Ortega 

$100,000 in punitive damages. 

On October 27, 2020, the 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, oppression, or fraud.” As 

noted, however, the verdict form made no mention of any CWW 

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, 2021, the court awarded Ortega attorney 

fees in the amount of $291,948.00. 
10

DISCUSSION

CWW contends no substantial evidence supports the 

judgment because uncontested evidence established that Reisz 

did not know about Ortega’s complaints about missed meal 

breaks 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 exercising 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 

contributing 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. “The 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

The second prong of the statue codifies the employer’s “samedecision 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] appellate 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 prevailing 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, the uncontroverted evidence 

established that Reisz decided to fire Ortega before Ortega 

complained.

Reisz testified, and other evidence 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 emailed 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. On the 

contrary, the 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 on 
12

April 10. Ortega herself never testified that she told Reisz about 

her complaints. 

It was simply impossible for Reisz to retaliate against 

Ortega because of a complaint Ortega made after the alleged 

retaliation.

Ortega purports to derive an inference of retaliation from a 

partial sequence of events: She complained 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 termination 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 suggests that Reisz knew about 

Ortega’s complaints even as late as April 10, 2017, when Reisz 

presented her with the termination papers, the sequence of 

events by itself failed to fulfill Ortega’s burden of showing 

retaliation was a contributing factor in Ortega’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 

incorrect.” We disagree. The relevant timeline concerns the date 

of the memo itself, not the dates it recites. 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 Willis 

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 human resources 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 suggesting 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 glosses 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-out 
14

procedure; (2) other employees had not been terminated for 

waterbombing severs; (3) the waterbombing here 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: 

Even if Reisz’s stated reasons 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 when an employer 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 underlying 
15

reasons, especially in a business setting. Thus, when all 

legitimate reasons for rejecting an applicant 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. None 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 CWW’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 more 

likely than not Reisz based her 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 them, established that Reisz could 

not have retaliated 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 

evidence 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 attorney 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 action 

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 judgment, along with the damages and fee 

awards, are reversed.

Respondent is to recover costs on appeal.

NOT TO BE PUBLISHED

CHANEY, J.

We concur:

ROTHSCHILD, P. J. BENDIX, J.