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

Filed 10/15/20

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

LILIA GARCIA-BROWER,

Plaintiff and Appellant,

A156985

v.

PREMIER AUTOMOTIVE (Alameda County

IMPORTS OF CA, LLC, Super. Ct. No. RG17872374)

Defendant and Respondent.

Labor Code section 432.7 prohibits an employer from asking a job

applicant to disclose any conviction that has been judicially dismissed and

bars an employer from using any record of a dismissed conviction as a factor

in the termination of employment.1 Tracey Molina was hired by respondent

Premier Automotive Imports of CA, LLC (Premier) in 2014. Exercising her

rights under the Labor Code, she did not disclose a dismissed 2010 conviction

for misdemeanor grand theft on her job application. She passed Premier’s

criminal background check and had been working for the company for four

weeks when the Department of Motor Vehicles (DMV) mistakenly reported

that Molina had an active criminal conviction.

Rather than investigate the discrepancy between the criminal

background reports, Premier decided to terminate Molina for “falsification of

1 All further undesignated statutory references are to the Labor Code.

1

job application,” even after she explained to her superiors that her conviction

had been dismissed by court order. Although the DMV issued a corrected

notice three weeks later, Molina was not rehired by Premier.

The Labor Commissioner determined that Molina had been unlawfully

discharged and ordered her reinstatement with back pay. Premier’s

administrative appeal of the decision was denied. When Premier did not

comply with the orders, the Commissioner filed the instant enforcement

action on Molina’s behalf.2 Following the Commissioner’s presentation of

evidence at trial, the trial court granted Premier’s motion for nonsuit, finding

an absence of any evidence that Premier was aware at the time it terminated

Molina that her conviction had been judicially dismissed. We conclude the

trial court erred in granting nonsuit and reverse the judgment below.

FACTUAL AND PROCEDURAL BACKGROUND

A. Complaint to Labor Commissioner

Molina filed a retaliation complaint with the Labor Commissioner in

April 2014 after her termination of employment from Premier. In December

2016, the Commissioner found in Molina’s favor and ordered Premier to

reimburse Molina’s lost wages with interest, pay a civil penalty, and reinstate

Molina to her former position or a similar position. Premier lost its appeal to

the Director of the Department of Industrial Relations and later refused to

comply with the Commissioner’s orders.

In March 2018, the Commissioner filed the underlying enforcement

action against Premier for violation of sections 98.6 and 432.7. The

Commissioner alleged that Premier unlawfully retaliated against Molina for

exercising her right to omit disclosure of the dismissed conviction on her job

2The complaint was originally filed by Commissioner Julie Su, who is

succeeded in office by appellant Commissioner Lilia Garcia-Brower.

2

application, and relied on a dismissed conviction as a factor in terminating

her employment. The matter proceeded to a jury trial.

B. The Commissioner’s Presentation of Evidence at Trial

i. Molina’s Dismissed Conviction

Molina testified that she had pleaded no contest to misdemeanor grand

theft in Santa Cruz County Superior Court in May 2010. The charge arose

after she embezzled $2,600 from her then employer, Ocean Honda. She

regretted her wrongdoing and took responsibility for it by paying restitution

to Ocean Honda, completing 15 days of community service, and serving three

years of probation. After successfully completing probation, Molina filed a

motion under Penal Code section 1203.4 to have her conviction dismissed.3

The court granted her motion and dismissed her conviction in November

2013.

ii. Premier Hires Molina After Running a Background Check

Premier is an automobile retailer regulated and licensed by the

Department of Motor Vehicles (DMV). In early 2014, Premier anticipated a

vacancy for a contracts/DMV clerk position because the incumbent employee

was planning to take an extended leave of absence. Sylvia Cunningham,

Premier’s office manager, invited Molina to apply for the position. She had

known Molina for about a decade and they had previously worked together at

Penal Code section 1203.4 authorizes a superior court to grant relief

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to individuals who successfully complete the terms of probation by mitigating

some of the consequences of conviction. “ ‘Section 1203.4 does not, properly

speaking, “expunge” the prior conviction. The statute does not purport to

render the conviction a legal nullity. Instead it provides that, except as

elsewhere stated, the defendant is “released from all penalties and

disabilities resulting from the offense.” ’ ” (Baranchik v. Fizulich (2017)

10 Cal.App.5th 1210, 1225.)

3

a different automobile dealership. Molina applied for the position in January

2014.

Premier’s job application asked if the applicant had ever pleaded guilty

or no contest to, or been convicted of, a misdemeanor or a felony. The

application further instructed that the question should be answered in the

negative as to “any conviction for which probation has been successfully

completed . . . and the case has been dismissed . . . .” Molina truthfully

answered “no” to this question. As part of the application process, Molina

submitted to a background check performed by a private company named

Vigilant and a fingerprint scan administered through the Department of

Justice Live Scan. Molina was not concerned about these background checks

because her conviction had been judicially dismissed. The Vigilant check

indicated that Molina had not sustained any felony or misdemeanor

convictions in the past seven years. Vigilant focused upon four counties,

including Santa Cruz County.

Premier’s business office was headed by Yvonne Hendricks. Based on

the results of the Vigilant background check, Hendricks called Molina to tell

her she had been hired. Molina began working for Premier as a contracts/

DMV clerk in February 2014. Molina’s job duties included processing

customer purchase contracts, inputting electronic DMV transactions, and

reconciling contracts and DMV reports for consistency. The DMV work took

up about 75 percent of her time, and contract work about 25 percent. Molina

was trained to use the DMV system by the incumbent employee.

The DMV requires dealerships like Premier to participate in an

electronic registration program called the Business Partnership Automation

Program. This program allows automobile dealerships to electronically

submit DMV transactions, including vehicle registrations and transfers, to

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the DMV for processing. Participation in the program requires DMV

approval of any dealership employee who utilizes the system. Such

employees are required to submit an application to the DMV and undergo a

Live Scan fingerprint check with the Department of Justice. Applicants to

the program are required to disclose whether they have any convictions,

including convictions that have been judicially dismissed.

Premier did not submit Molina’s Business Partner Automation

Program application to the DMV until March 6, 2014. Molina did not disclose

her misdemeanor conviction when she filled out the application. She testified

that she was not trying to be dishonest and said that she failed to read the

application’s instruction to disclose dismissed convictions. By then, Molina

had already been processing DMV transactions using the log-in credentials of

the incumbent employee.

A representative from the Department of Justice testified that certain

agencies, including state courts, are statutorily mandated to submit criminal

history information to the Department of Justice. Relevant documents must

be submitted within 30 days of a recordable event, but it is not uncommon for

submissions to be late. The Department of Justice maintains its records in

an automated system and the accuracy of its records depends on the

information supplied by the contributing agencies. In early March 2014,

there was no record in the system showing that Molina’s grand theft

conviction had been dismissed. Although the conviction was set aside by

court order on November 25, 2013, the Department of Justice did not enter

the dismissal in its database until March 25, 2014.

iii. Premier Terminates Molina’s Employment

On Friday, March 7, 2014, the DMV notified Premier by letter that it

had denied Molina admission to the Business Partner Automation Program

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because the Department of Justice background check disclosed an active

conviction for grand theft. Hendricks and Cunningham were surprised to

learn that Molina had a conviction. Hendricks double-checked the Vigilant

background check that Friday afternoon and found no mention of any

conviction. Although the Vigilant check was clean, Hendricks did not contact

the DMV for more information. After speaking with Premier’s legal counsel,

Hendricks and Premier’s general manager, Carlos Mandigma, decided to

terminate Molina’s employment. At trial, Mandigma testified that he too

thought it was odd that the Vigilant background check conflicted with the

Department of Justice’s background check. He considered Vigilant to be

dependable.

Premier scheduled a termination meeting with Molina the following

Monday, March 10, 2014. Neither Mandigma nor Hendricks interviewed

Molina prior to their decision to terminate her employment, nor was any

investigation conducted concerning the discrepancy between the background

checks. They did not think it necessary to do so because the DMV had denied

Molina’s admission to the Business Partner Automation Program and she

could not do the job she was hired to do. Although the moment when

Premier’s managers decided to fire Molina is not clear, Cunningham recalled

it was either “late Friday or first thing early Monday.” Mandigma testified

that the decision had already been made before the Monday meeting

scheduled with Molina. According to Cunningham, the decision to fire

Molina was made quickly because the contracts/DMV clerk position was very

important and the incumbent employee would soon be out on maternity

leave. Hendricks testified, however, that the incumbent employee remained

working full-time for Premier for the next two months before taking

maternity leave.

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Cunningham testified that Molina was terminated because she had

been denied admission to the Business Partner Automation Program.

However, the DMV denial was not mentioned on Molina’s termination of

employment form. Instead, Mandigma checked a box on the form stating

that Molina had been fired for “falsification of job application,” meaning that

Molina lied by omitting the grand theft conviction on her application. At the

time, Hendricks thought falsification of job application best characterized the

reason for Molina’s termination. The form also specified that Molina would

be ineligible for rehire.

At the termination meeting, Cunningham and Mandigma provided

Molina with a copy of the DMV letter and informed her that she was being let

go. Molina was surprised by the letter. She testified that she informed

Cunningham and Mandigma several times that her conviction had been

judicially dismissed. Molina was not given an opportunity to prove that the

conviction was off her record. She was handed her final paycheck and asked

to sign the termination form. Molina testified that as she was gathering her

belongings, she apologized and Cunningham replied, “You should have told

me.” Cunningham testified that Molina kept repeating she was sorry and did

not explain that her conviction had been dismissed. However, Cunningham’s

deposition testimony—in which she acknowledged that Molina had stated at

the meeting that her prior conviction had been expunged—was read into

evidence. Molina signed the termination form, accepted her check, and left

with a copy of the DMV letter.

On March 19, 2014, Molina appealed the DMV’s decision, disputing the

results of the Department of Justice’s background check. Two weeks later, on

April 3, 2014, Molina was admitted into the Business Partner Automation

Program after the Department of Justice sent the DMV a corrected

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background check showing that Molina’s conviction had been judicially

dismissed. The DMV cleared Molina to process vehicle registration and

titling transactions.4

Hendricks and Cunningham both conceded at trial that Molina had

truthfully filled out the job application and Hendricks acknowledged that

Molina had not been interviewed prior to discharge nor given a chance to

dispute the DMV’s letter. Cunningham agreed that the DMV letter was

inaccurate. Prior to receipt of the DMV’s denial letter, there had been no

complaints about Molina’s work performance and she appeared qualified to

do the job.

C. Motion for Nonsuit

At the close of the Commissioner’s case, Premier filed a motion for

nonsuit pursuant to Code of Civil Procedure section 581c, asserting that the

Commissioner’s evidence was insufficient as a matter of law to prove a prima

facie case for retaliation under section 98.6 or violation of section 432.7.

Premier’s counsel argued that both statutes required proof that Premier

knew Molina’s conviction had been dismissed at the time of her termination.

Citing Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52

(Morgan), counsel noted the employer must be aware that an employee had

engaged in protected activity in order to incur liability. Defense counsel

asserted that the record was clear that Premier did not know the conviction

had been dismissed when Molina was terminated, and the fact that Molina

4 The record does not disclose when Premier became aware of the

DMV’s correction, in part because the trial court ruled that evidence of

posttermination events was not relevant to the proceedings. The court

barred plaintiff’s counsel from inquiring about Molina’s efforts to correct the

DMV’s error and other posttermination events. We address the propriety of

this ruling below.

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subsequently informed Premier that her conviction had been dismissed was

immaterial to the proceedings.

The Commissioner’s counsel responded that there were disputed

factual questions as to whether Premier had fired Molina for failing to

disclose a dismissed conviction on her job application. Counsel noted that

Cunningham told Molina she should have disclosed the conviction, and

Premier cited falsification of the job application as the reason for the

termination. In addition, the conflicting background checks and Molina’s

statement that her conviction had been dismissed served to put Premier on

notice that the termination could constitute a violation of section 432.7 and

should have been investigated.

The trial court granted the motion, concluding: “I think the set of facts

is sort of a tragedy, but I think the defense is totally correct, that there is an

absence of any proof upon which the jury could determine that Premier

Automotive Imports had knowledge that the conviction had been expunged

until after they made the decision. . . . [¶] I’m going to grant the motion for

the failure to demonstrate that the dealership knew at the time that they

fired her that she—that she didn’t really have a conviction and wasn’t really

unqualified for the job that she was hired for.”

On February 13, 2019, the trial court entered judgment in favor of

Premier. This appeal followed.

DISCUSSION

Nonsuit may be raised after the close of plaintiff’s case-in-chief. (Code

Civ. Proc., § 581c, subd. (a).) The motion shall be granted if the trial court

determines that the plaintiff’s evidence is insufficient as a matter of law to

support a jury verdict in her favor. (Stonegate Homeowners Assn. v. Staben

(2006) 144 Cal.App.4th 740, 745.) The trial court must proceed with caution

9

because a nonsuit precludes the jury’s consideration of the case. (Carson v.

Facilities Development Co. (1984) 36 Cal.3d 830, 838 (Carson).)

In reviewing a grant of nonsuit, we are guided by the same rules

governing the evaluation of evidence in the light most favorable to the

plaintiff. (Nally v. Grace Community Church (1988) 47 Cal.3d 278, 291.) “We

will not sustain the judgment ‘ “unless interpreting the evidence most

favorably to plaintiff's case and most strongly against the defendant and

resolving all presumptions, inferences and doubts in favor of the plaintiff a

judgment for the defendant is required as a matter of law.” ’ ” (Ibid.)

Although “a judgment of nonsuit must not be reversed if plaintiff’s proof

raises nothing more than speculation, suspicion, or conjecture, reversal is

warranted if there is ‘some substance to plaintiff’s evidence upon which

reasonable minds could differ . . . .’ ” (Carson, supra, 36 Cal.3d at p. 839.)

Resolving all evidentiary presumptions, inferences, and doubts for the

plaintiff, we cannot say that Premier was entitled to judgment as a matter of

law at the close of the Commissioner’s case. The Commissioner presented

evidence sufficient to prove that Premier was aware or had reason to believe

that Molina’s criminal conviction had been judicially dismissed. Sufficient

evidence was also presented to allow a jury to infer that Premier retaliated

against Molina for failing to disclose her dismissed conviction on her job

application, and that the company used the dismissed conviction as an

impermissible factor in her termination.

Premier contends that evidence of Molina’s statements at the

termination meeting were properly disregarded as coming after its decision to

terminate her employment. We disagree. Whether the company conducted

an adequate investigation of the conflicting background checks or information

disclosed at the termination meeting before firing Molina created disputed

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factual questions about Premier’s motivations for terminating her. To

conclude, as Premier urges, that the company should be insulated as a matter

of law from its rushed employment decision runs counter to the statutory

protections embodied in sections 432.7 and 98.6 and several employment law

decisions.

A. Sections 98.6 and 432.7

Section 98.6 prohibits an employer from retaliating against an

applicant or employee because the applicant or employee exercised a right

afforded him or her under the Labor Code. “A person shall not discharge an

employee or in any manner discriminate, retaliate, or take any adverse action

against any employee or applicant for employment . . . because of the exercise

by the employee or applicant for employment on behalf of himself, herself, or

others of any rights afforded him or her.” (§ 98.6, subd. (a).) The phrase “any

rights” refers to rights provided under the Labor Code. (Grinzi v. San Diego

Hospice Corp. (2004) 120 Cal.App.4th 72, 87.) Among these protected rights

is the right to refrain from disclosing a judicially dismissed criminal

conviction to a prospective employer. (§ 432.7, former subd. (a).)

“The clear purpose of section 432.7 is to prevent the misuse of criminal

offender records information.” (Pitman v. City of Oakland (1988)

197 Cal.App.3d 1037, 1044.) Former section 432.7, subdivision (a) provided,

in relevant part: “No employer . . . shall ask an applicant for employment to

disclose, through any written form or verbally, information . . . concerning a

conviction that has been judicially dismissed or ordered sealed pursuant to

law, including, but not limited to, Section[] 1203.4 . . . of the Penal Code, nor

shall any employer seek from any source whatsoever, or utilize, as a factor in

determining any condition of employment including . . . termination, . . . any

record . . . concerning a conviction that has been judicially dismissed or

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ordered sealed pursuant to law.” (Former § 432.7, subd. (a), as amended by

Stats. 2013, ch. 721, § 1, eff. Jan. 1, 2014.)

Section 432.7, subdivision (a), was enacted to serve the important

public policy of removing employment barriers for those who have committed

crimes that have been expunged by the courts.5 (Assem. Floor 3d reading

Analysis of Sen. Bill No. 530 (2013-2014 Reg. Sess.) as amended Aug. 30,

2013 ) In 2013, the Legislature expressed concern that Penal Code section

1203.4 had been ineffective in clearing criminal histories because records of

expunged convictions were still available online. Thus, “[e]ven after receiving

an expungement, rehabilitated former offenders suffer lifelong discrimination

in employment, housing and travel. Not only is this unjust, it inevitably

costs California millions of dollars in dealing with recidivism, unemployment,

and under employment.” (Sen. Public Safety Com., Analysis of Sen. Bill

No. 530 (2013-2014 Reg. Sess.), as amended Apr. 15, 2013, p. 6.) When the

Legislature amended section 432.7 to prohibit employers from inquiring

about or utilizing dismissed criminal convictions as a basis for making

employment decisions, it did so with the express aim of removing barriers to

employment for rehabilitated offenders. (Assem. Com. on Judiciary, Analysis

of Sen. Bill No. 530 (2013-2014 Reg. Sess.) as amended June 19, 2013, pp. 2–

3; Sen Com. on Public Safety on Sen. Bill No. 530 (2013-2014 Reg. Sess.) as

amended Apr. 15, 2013, pp. 6–7.)

B. Section 432.7 Claim

To establish a violation of section 432.7, the Commissioner was

required to prove that Premier utilized as a factor in terminating Molina’s

employment any record concerning a conviction that has been judicially

5 The Commissioner’s unopposed November 22, 2019 request for

judicial notice of section 432.7’s legislative history is granted.

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dismissed. (§ 432.7, former subd. (a).) As presented here, the section 432.7

claim bears similarity to a claim of wrongful discharge in violation of public

policy. We look to that precedent to help guide our analysis of this claim.

“ ‘[W]hile an at-will employee may be terminated for no reason, or for

an arbitrary or irrational reason, there can be no right to terminate for an

unlawful reason or a purpose that contravenes fundamental public policy.

Any other conclusion would sanction lawlessness, which courts by their very

nature are bound to oppose.’ ” (Casella v. SouthWest Dealer Services, Inc.

(2007) 157 Cal.App.4th 1127, 1138–1139.) “The elements of a claim for

wrongful discharge in violation of public policy are (1) an employer-employee

relationship, (2) the employer terminated the plaintiff's employment, (3) the

termination was substantially motivated by a violation of public policy, and

(4) the discharge caused the plaintiff harm.” (Yau v. Allen (2014)

229 Cal.App.4th 144, 154.)

The evidence was uncontested that an employer-employee relationship

was established and later severed by Premier and that the discharge caused

Molina harm. The question at issue here is whether sufficient evidence at

trial was adduced to show that Premier utilized a record concerning Molina’s

judicially dismissed conviction as a factor in its termination decision. Stated

another way, did the Commissioner present sufficient evidence from which a

jury could find that Premier knew about Molina’s dismissed conviction and

misused that information to fire her in violation of section 432.7? The answer

is yes.

While there is no evidence that Molina’s supervisors were initially

aware that the conviction flagged by the Department of Justice was actually

a dismissed conviction, Premier had credible information—in the form of the

Vigilant background check—suggesting that the DMV letter was

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incorrect or incomplete. As Hendricks, Mandigma, and Cunningham all

acknowledged at trial, the Department of Justice’s report to the DMV was

clearly in conflict with Vigilant’s background check. Yet they took no steps to

contact the DMV or otherwise investigate the discrepancy before deciding to

terminate Molina. Premier argues it had no reason to disbelieve the DMV’s

letter, and once it learned that Molina had been denied admission to the

Business Partner Automation Program, it had no choice but to fire her

quickly because the contracts/DMV clerk position is an important one with

time-sensitive responsibilities. As noted above, however, Molina was able to

resolve the DMV’s error within two weeks of challenging it, and Hendricks

testified that Premier’s incumbent employee continued working for Premier

for two more months before taking maternity leave. It was for a jury to

weigh whether to credit Premier’s explanations or to find that Premier was

substantially motivated by an unlawful purpose in discharging her.

Molina also testified that she explained to Cunningham and Mandigma

several times at the termination meeting that her conviction had been

dismissed. This disclosure put Premier’s managers directly on notice that the

conviction on Molina’s background check had been judicially dismissed and

that Molina had exercised her right not to disclose the dismissed conviction

on her job application. Despite the warning signs, Premier pressed on and

terminated Molina’s employment on the basis of a “falsified” job application.

The trial court reluctantly found that there was no firm evidence upon

which a jury could determine that Premier was aware that the conviction had

been expunged until after it made its decision to fire Molina. This was error.

As discussed above, the background check discrepancy put Premier on notice

that either the Vigilant or Department of Justice background check was

mistaken. Nothing prevented the company from taking more than a weekend

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to evaluate whether it was proceeding in a lawful manner or from taking

stock of Molina’s disclosure that her conviction had been judicially dismissed.

Whether an employer has conducted an adequate investigation before

dismissing an employee for an unlawful purpose is generally a question of

fact for the jury.

In Mendoza v. Western Medical Center Santa Ana (2014)

222 Cal.App.4th 1334 (Mendoza), for example, the plaintiff sued his former

employer for wrongful termination in violation of public policy, claiming he

was fired because of his report of sexual harassment by his supervisor. (Id.

at p. 1339.) The defendants maintained that they fired the plaintiff after

determining he had willingly engaged in flirtatious and lewd behavior with

his supervisor, and not as a result of any retaliatory animus. (Id. at p. 1343.)

Judgment for the plaintiff was reversed after the Mendoza court found that

the jury had been erroneously instructed and the error was prejudicial. (Id.

at pp. 1341–1342.) The appellate court rejected defendants’ contention,

however, that the evidence was insufficient as a matter of law to find that the

plaintiff’s sexual harassment report was a substantial motivating reason for

his discharge. (Id. at p. 1344.) After noting several facts which could support

a jury finding of unlawful retaliation, the court highlighted plaintiff’s expert

testimony that the employer failed to conduct an adequate investigation into

what happened. (Ibid.) It observed that “[t]he lack of a rigorous

investigation by defendants is evidence suggesting that defendants did not

value the discovery of the truth so much as a way to clean up the mess that

was uncovered when [plaintiff] made his complaint.” (Ibid.)

Similarly, in Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243,

278–283, the plaintiff sued his former employer alleging that the stated

reason for his termination, that he sexually harassed a female contractor,

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was a pretext for his employer’s discrimination against him on the basis of

his race and national origin. (Id. at pp. 248–249.) The appellate court

reversed the trial court’s grant of summary judgment for the employer,

finding that there was substantial evidence the employer failed to conduct a

fair and thorough investigation into the matter by having a biased supervisor

with an “axe to grind” conduct the investigation, failing to comply with its

own policy to give the alleged harasser a copy of the written complaint, and

failing to interview relevant witnesses. (Id. at p. 277, 280.) The Nazir court

observed that an employer’s failure to interview witnesses for potentially

exculpatory information can indicate pretext. (Id. at pp. 278–280; see Reeves

v. Safeway Stores, Inc. (2004) 121 Cal.App.4th 95, 120–121; Greene v. Coach,

Inc. (S.D.N.Y. 2002) 218 F.Supp.2d 404, 410; Probst v. Reno (N.D.Ill. 1995)

917 F.Supp. 554, 561.)

Here, Premier conducted no investigation into the circumstances

around the discrepancy between the criminal background checks or Molina’s

disclosure to Premier’s managers that her conviction had been expunged.

Molina was not interviewed prior to her termination or given an opportunity

to prove to her superiors that she was telling the truth, nor was the DMV

contacted.6 The evidence further established that the DMV’s mistake was

corrected after Molina’s appeal to the agency within a matter of weeks, but

Molina was not rehired by Premier. In short, there was sufficient evidence

from which a jury could infer that Premier had no interest in clearing up the

6 As our Supreme Court has observed in a related context, an adequate

investigation by an employer prior to discharge requires at a minimum that

the employee be provided “notice of the claimed misconduct and a chance for

the employee to respond.” (Cotran v. Rollins Hudig Hall Internat., Inc. (1998)

17 Cal.4th 93, 108 [involving action for breach of implied contractual duty to

discharge only upon good cause].)

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confusion surrounding Molina’s dismissed criminal conviction. The

company’s rush to fire her without investigation, and its stated basis for

doing so—a “falsified” job application—could be viewed as pretextual, and a

fact finder could conclude that the real reason Premier discharged Molina

was its discovery that she had not disclosed a dismissed criminal conviction.

Finally, Premier contends that there is no evidence to support a section

432.7 claim because the DMV letter was not a “record” within the meaning of

the statute. Section 432.7, former subdivision (a) prohibited employers from

requiring applicants to disclose “information . . . concerning a conviction that

has been judicially dismissed . . . .” As to employees, the statute prohibited

employers from “utiliz[ing], as a factor in determining any condition of

employment including . . . termination . . . , any record . . . concerning a

conviction that has been judicially dismissed. . . .” (Italics added.)

Presupposing a distinction between “record” and “information,” Premier

asserts the Legislature must have intended for the term “record” to be limited

to “official” documents containing information maintained by law

enforcement agencies. We are not persuaded.

Former section 432.7 did not define the term “record.” Premier

contends we should interpret the term as it is utilized in various sections of

the Penal Code, citing sections 851.7, 851.86, 851.90, 1203.45, 11105, 13102,

and 13301. These provisions pertain to the sealing of criminal records or the

dissemination of criminal history information by law enforcement agencies.

Naturally, they concern official government records. But former section

432.7 makes no mention of these statutory provisions, and Premier does not

explain why a private report summarizing the findings of a criminal

background check, for example, would be excluded from the meaning of a

“record” in section 432.7. Indeed, our high court has concluded that employer

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background checks which “contain[] information regarding the subject’s

criminal records, sex offender status, address history, driving records, and

employment history” are credit “records” subject to the requirements of the

Consumer Credit Reporting Agencies Act (Civ. Code § 1785.1 et seq., added

by Stats. 1970, ch. 1348, § 1, p. 2512, repealed and replaced by Stats. 1975,

ch. 1271, § 1, pp. 3369–3387). (First Student Cases (2018) 5 Cal.5th 1026,

1031–1032, 1036; see also Skulason v. California Bureau of Real Estate

(2017) 14 Cal.App.5th 562, 571 [noting that employers could be exposed to

possible liability under section 432.7 if they base employment decisions on

incomplete criminal conviction history published on a website].)

As the Commissioner observes, Premier’s narrow construction would

leave employers free to use private background checks and Internet searches

to terminate or otherwise punish employees for failing to disclose a dismissed

conviction because such reports would not fall within its definition of

“record,” a result that would defeat the apparent purpose of section 432.7.

We agree with the Commissioner that “record” should be interpreted in its

common-sense meaning as “[a]n account, as of information or facts, set down

especially in writing as a means of preserving knowledge” or “[i]nformation or

data on a particular subject collected and preserved.” (See American

Heritage Dict. (5th ed. 2011). Under this plain language definition, a letter

from the DMV disclosing a criminal conviction record reported by the

Department of Justice qualifies as a “record” of a conviction.

Section 432.7’s legislative history supports a broader and more flexible

reading of the term “record” than the one offered by Premier. When the law

was amended in 2013 to prohibit employer misuse of criminal conviction

records of rehabilitated offenders, the bill author argued “that while [the]

person is supposed to be relieved from the disabilities of their offense, the fact

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that people can get records online and understand what a dismissal under

Penal Code Section 1203.4 means, even an offense dismissed under Penal

Code Section 1203.4 is interfering with the ability of many to fully

rehabilitate by gaining employment.” (Sen. Comm. on Public Safety, Report

on Sen. Bill No. 530 (2013-2014 009 Reg. Sess.) as amended Apr. 15, 2013,

italics added.) Given the clear purpose of the law to remove employment

barriers for individuals whose convictions have been dismissed or expunged,

it is unlikely the Legislature would have intended the meaning of a “record”

to be limited to criminal history information maintained by governmental

agencies. In any event, even under Premier’s narrow interpretation, we see

no reason why the DMV letter would not qualify as an “official” criminal

history record, particularly as the DMV is itself a governmental agency and

the information was obtained directly from the Department of Justice, the

primary agency that maintains such records on behalf of the State of

California.

C. Section 98.6 Claim

For the same reasons discussed above, we conclude that nonsuit with

respect to the Commissioner’s retaliation claim was improvidently granted.

To establish a prima facie violation of section 98.6, the Commissioner was

required to demonstrate that Molina engaged in protected activity, that

Premier subjected her to an adverse employment action, and that Molina’s

protected activity substantially motivated Premier’s adverse employment

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

Premier does not dispute that Molina engaged in protected activity by

exercising her right not to disclose her dismissed conviction on her job

application. It is also undisputed that Premier subjected Molina to an

adverse employment action. The salient question here is whether the

Commissioner presented sufficient evidence to establish that Premier’s

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discharge was motivated at least in part by Molina’s failure to disclose the

dismissed conviction on her job application. Although we agree with Premier

that the required causal link cannot be established without evidence that

Premier’s decisionmakers had knowledge of Molina’s protected activity

(Morgan, supra, 88 Cal.App.4th at p. 70), we do not agree that such evidence

was lacking as a matter of law from the Commissioner’s case-in-chief.7

“ ‘The retaliatory motive is “proved by showing that plaintiff engaged in

protected activities, that his employer was aware of the protected activities,

and that the adverse action followed within a relatively short time

thereafter.” [Citation.] “The causal link may be established by an inference

derived from circumstantial evidence, ‘such as the employer’s knowledge that

the [employee] engaged in protected activities and the proximity in time

between the protected action and allegedly retaliatory employment

decision.’ ” [Citation.]’ [Citation.] ‘Essential to a causal link is evidence that

the employer was aware that the plaintiff had engaged in the protected

activity.’ ” (Morgan, supra, 88 Cal.App.4th at pp. 69–70.)

We conclude there was sufficient evidence to establish that Premier’s

employment decision was substantially motivated by Molina’s failure to

disclose her dismissed conviction from her job application. As discussed

above, the conflicting criminal background checks and Molina’s disclosure at

the termination meeting served to put Premier on notice that her conviction

had, in fact, been dismissed. Premier’s failure to investigate these

7The Commissioner also contends that a traditional causation analysis

is unworkable in circumstances where the protected activity involves a

worker’s right to nondisclosure of a dismissed conviction. We need not

address the Commissioner’s causation argument as the record here

demonstrates that Molina voluntarily disclosed her dismissed conviction to

her superiors, and sufficient evidence was presented for a jury to find that

Premier’s employment decision was motivated by a retaliatory animus.

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circumstances before terminating Molina supports the inference that Premier

knew she could be telling the truth and that Premier’s basis for firing her—a

“falsified” job application—was pretextual. In addition, Molina testified that

as she was gathering her belongings to leave, she apologized and

Cunningham replied, “You should have told me.” The evidence thus supports

a finding that a substantial motivating reason for Molina’s firing was her

failure to disclose the dismissed conviction on her job application.

Premier argues that its dismissal decision was based on the DMV’s

denial of Molina from the Business Partnership Automation Program. But as

the Commissioner points out, that was not the reason given on the

termination form. The form stated instead that Molina was fired for

“falsification of job application”—a rationale the company concedes was

wrong. Our charge in reviewing the nonsuit order is to view the evidence in

the light most favorable to the Commissioner, indulging all legitimate

inferences and presumptions in her favor, and disregarding any conflicting

evidence. Viewed in this light, we conclude that the evidence is more than

sufficient to support a finding of unlawful retaliation.

Premier also contends that the Commissioner cannot rely on

posttermination conduct to support a retaliatory termination claim, citing

Avila v. Continental Airlines, Inc. (2008) 165 Cal.App.4th 1237 (Avila). In

Avila, an airline employee was fired for violating the company’s attendance

policy. (Id. at pp. 1244–1245.) After he was informed that he was being

terminated for attendance issues, he told his supervisors for the first time

that several of his absences were due to a hospitalization for acute

pancreatitis. (Id. at p. 1245.) The next day, he delivered proof of his

diagnosis and unsuccessfully requested reinstatement. (Ibid.) He then sued

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for disability discrimination under the Fair Employment and Housing Act

(FEHA) (Gov. Code, § 12940 et seq.), along with other causes of action. (Ibid.)

The Court of Appeal affirmed the trial court’s award of summary

judgment in the employer’s favor on the FEHA claim. (Avila, supra,

165 Cal.App.4th at p. 1247.) As to the information the employee provided

posttermination, the court concluded: “Evidence that a decision maker

learned of a plaintiff's disability after deciding to take adverse employment

action is not probative of whether the decision maker was aware of the

plaintiff's disability when he or she made the decision. Such evidence is

irrelevant to determining whether the decision maker acted from a

discriminatory animus.” (Id. at p. 1251.)

We find Avila distinguishable. Avila did not involve an employer

whose managers were aware that conflicting background checks may indicate

that the employee’s criminal conviction had been dismissed by court order, a

circumstance that could have been clarified with an investigation. In

contrast, there was no evidence that the employer in Avila knew about the

plaintiff’s medical condition, and the employer first suspended the plaintiff

before taking its time to decide that he should be discharged. (Avila, supra,

165 Cal.App.4th at pp. 1244–1245.) We do not find the two situations at all

comparable. Furthermore, unlike the posttermination notification provided

to the employer in Avila, Premier was advised by Molina during the meeting

in which she was being fired that the conviction Premier was relying on as

the basis for her discharge had been judicially dismissed.

Several federal courts have concluded that posttermination evidence is

not per se inadmissible or irrelevant in the context of employment

discrimination claims. In appropriate cases, such evidence can support an

inference that a termination was substantially motivated by an unlawful

22

reason. “The relevance of post-termination evidence in a Title VII case

depends on the nature of the evidence, the purpose for which it is offered, and

the context in which it arises. In some circumstances, post-termination data

is relevant to the employer’s state of mind before termination. See Greene v.

Safeway Stores, Inc., 98 F.3d 554, 561 10th Cir. 1996) (permitting plaintiff to

introduce evidence that other employees in the protected age class were

replaced, because ‘evidence concerning the make-up of the employment force

and events which occurred after plaintiff's termination were entirely relevant

to the question of whether or not age was one of the determinative reasons for

plaintiff’s termination’], cited in Hall v. Giant Food, Inc., 175 F.3d 1074, 1080

(D.C. Cir. 1999). In other circumstances, posttermination data is irrelevant

to pretermination events and motives. See Warren v. Prejean, 301 F.3d 893,

905 (8th Cir. 2002) (affirming the exclusion of testimony about information

that was not previously available to the employer and was therefore

‘irrelevant as to the information known to [the employer] at the time of the

termination’).” (Bowie v. Maddox (D.C. Cir. 2011) 642 F.3d 1122, 1134–

1135.)

Regarding posttermination remarks suggestive of a discriminatory

motive, the First Circuit Court of Appeals has stated, “That the remarks

occurred subsequent, rather than prior, to the allegedly discriminatory

conduct does not alter their admissibility.” (Brown v. Trustees of Boston

University (1st Cir. 1990) 891 F.2d 337, 350 [jury was entitled to infer that

any discriminatory animus toward women manifested in 1982 and 1983

would have existed in 1980 and 1981, when plaintiff was terminated].) We

agree with these authorities and conclude, in the context of the particular

facts of this case, that evidence bearing on the termination meeting and

23

posttermination events is relevant to establish the employer’s pretermination

motive for firing Molina.

Evidence that Molina informed her supervisors as she was in the

process of being terminated that her conviction had been dismissed is

relevant to Premier’s motives. Her disclosure came on the heels of conflicting

criminal background reports and Premier’s rush to fire her without

investigating these circumstances or contacting Molina or the DMV. The

timing of her disclosure could support a reasonable inference that a

substantial motivating factor in Premier’s decision was her failure to disclose

a judicially dismissed criminal conviction. Similarly, evidence that Premier

did not rehire her after she obtained admission into the Business Partnership

Automation Program within weeks of the DMV’s initial denial letter also

suggests that the dismissed conviction played an impermissible role in her

termination.

In sum, because we must resolve every conflict in the evidence in favor

of the Commissioner and indulge in every presumption and inference that

reasonably could support her case, we reverse the judgment below. On

retrial, the Commissioner will be permitted to introduce evidence in support

of her claims, including evidence concerning the termination meeting and

relevant posttermination events such as Molina’s efforts to correct the DMV

error and Premier’s knowledge of and actions concerning those efforts. While

we conclude that sufficient evidence was offered at trial for the matter to be

submitted to a jury, we express no opinion as to what the ultimate result

should be.

DISPOSITION

The judgment is reversed. The matter is remanded to the superior

court for a new trial.

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_________________________

Sanchez, J.

WE CONCUR:

_________________________

Humes, P. J.

_________________________

Margulies, J.

A156985 Garcia-Brower v. Premier Automotive Imports

25

Trial Court: Alameda County Superior Court

Trial Judge: Hons. Frank Roesch and Noël Wise

Counsel:

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

and Appellant.

Richard J. Ritchie and Monika L. Brohamer for Defendant and

Respondent.

A156985 Garcia-Brower v. Premier Automotive Imports

26