Reynaud v. Technicolor Creative Servs. USA, Inc.

46 Cal.App.5th 1007

260 Cal.Rptr.3d 330

Michael REYNAUD et al., Plaintiffs and Respondents,

v.TECHNICOLOR CREATIVE SERVICES USA, INC., Defendant and Appellant.

B290836

Court of Appeal, Second District, Division 2, California.

Filed March 24, 2020

Faegre Baker Daniels, Faegre Drinker Biddle & Reathy, Ellen E. Boshkoff and Amanda Semaan, Los Angeles, for Defendant and Appellant.

Lipow & Harris, Jeffrey A. Lipow, Encino; Law Office of Rob R. Nichols, Rob R. Nichols ; Benedon & Serlin, Douglas G. Benedon and Wendy S. Albers, Woodland Hills, for Plaintiffs and Respondents.

ASHMANN-GERST, Acting P. J. Plaintiffs and respondents Michael Reynaud and Fiona Reynaud¹ prevailed at trial on their negligence cause of action against defendant and appellant Technicolor Creative Services USA, Inc. (Technicolor). Technicolor appeals, arguing, first, that the verdict is unsupported by substantial evidence and, second, that the damages awarded for emotional distress are, at least in part, barred by workers’ compensation exclusivity. We disagree with each of these contentions and, therefore, affirm the judgment.

FACTUAL BACKGROUND²

I. Technicolor Employs Michael, a British Citizen, and Sponsors a Series of Temporary Work Visas

Michael, a British citizen, was born and grew up in the south of England. In 2005, he moved to Los Angeles to attend business school at the University of Southern California (USC). In 2007, after obtaining a master of business administration (MBA) degree, he accepted a job and started working for Technicolor as a "global associate." Technicolor arranged and sponsored a series of temporary work visas for Michael, allowing him to remain in Los Angeles.

In 2010, Michael and Fiona, a British citizen based in England, began a romantic, long-distance relationship. Their first daughter was born in England in 2011. Fiona travelled to Los Angeles as often as possible and, following her marriage to Michael in 2015, was able to move there with her daughter based on Michael’s work visa. The Reynauds’ second daughter was born in Los Angeles later that year.

II. Technicolor Agrees to Sponsor Michael’s Green Card

Knowing that his work visa was set to expire in a few years, Michael asked Technicolor, toward the end of 2013, to sponsor him for a green card.³ He was told, informally, that "it wouldn’t be a problem." It was not until October 2014, however, that he received an e-mail from Cecilia Salazar (Salazar), Technicolor’s mobility manager, indicating that the company had agreed to sponsor him. Fiona was "[a]bsolutely over the moon" when she learned the news. To Michael, "it felt like the pieces of [their] lives were really coming together.... It meant that [they] could stay [in Los Angeles] and achieve what [they] wanted to achieve." Even Salazar considered it "great news" because Technicolor "doesn’t sponsor everyone."

III. Technicolor’s Handling of Michael’s Green Card Matter

A. The employment-based green card process

The employment-based green card process has three primary stages: (1) applying for a permanent labor certification (PERM) from the Department of Labor (DOL); (2) filing an immigrant petition (I-140) and supporting documents with the United States Custom and Immigration Service (USCIS); and (3) filing an adjustment of status form (I-485) with the USCIS to become a legal permanent resident—that is, obtain a green card.

Several steps are required before the initial PERM application can be filed. The employer must draft a description of the job that it seeks to fill with the foreign worker; set the minimum requirements for the position; apply for a prevailing wage determination from the DOL; and conduct advertising and recruitment to establish that there is no interested U.S. citizen or permanent resident who meets the minimum requirements for the position. If a minimally qualified U.S. worker applies for the position, the PERM application cannot be filed.

Once filed, 86 to 87 percent of PERM applications are approved by the DOL without an audit. Jay Ruby (Ruby), an attorney specializing in "corporate immigration, employment-based visas and permanent residence" who was retained by Technicolor for immigration matters, could not recall having any of the hundreds of PERM applications he filed for the company denied.

B. Delays in obtaining the PERM

Salazar and Lori Presson (Presson), a human resources representative, were the primary Technicolor employees involved in the sponsorship of Michael’s green card.

As a mobility manager, Salazar spent most of her time working on temporary work authorizations and green cards for Technicolor’s foreign employees. She worked directly with outside immigration counsel, coordinating matters between the lawyers, the company, and the employee. For Michael’s green card matter, she interacted with Ruby, a partner at the law firm Ogletree, Deakins, Nash, Smoak & Stewart, P.C. (Ogletree), and Kara M. Dujenski (Dujenski), a law clerk at the firm.

Michael’s green card case was the first that Presson had worked on, and she was unfamiliar with the process. Her role was to respond to requests from immigration counsel conveyed through Salazar.

Both Salazar and Presson knew that Michael’s green card application was time sensitive. The goal was to be as far along in the process as to allow Michael to remain in the United States beyond the expiration of his temporary work visa.

1. Determining minimum job requirements

Developing minimum job requirements for the position Technicolor sought to fill with Michael was of crucial importance to obtain the PERM. Technicolor’s objective in crafting those requirements was to ensure that, while Michael could meet them, they were sufficiently narrow so that other applicants could not. The requirements also had to be consistent with Technicolor’s actual hiring practices so that truthful representations were made to the government under penalty of perjury.

In late October 2014, Dujenski e-mailed Salazar drafts of the advertising text, job description, and requirements for Michael’s sponsored position. Apart from requiring an MBA or closely related degree, the requirements still needed to be determined.

Dujenski offered to schedule a call with Salazar and Michael’s manager to discuss how to define the minimum job requirements. In Dujenski’s experience, setting up such a call could help to quickly and efficiently finalize the requirements. Although Dujenski indicated that the requirements had to be finalized before proceeding to the other steps of the green card process, such as obtaining verification of Michael’s experience, no call between Dujenski, Salazar, and Michael’s manager ever took place.

It was not until over nine months later, in mid-August 2015, that the minimum requirements for the sponsored position were sufficiently finalized to proceed to the next crucial step of compiling evidence verifying that Michael could meet those requirements.

2. Verifying Michael’s experience

After defining the job requirements, the next step is to verify the sponsored employee’s experience. An employment verification letter (EVL), on company letterhead from a former employer, attests to the dates and titles of previous employment and the experience and skills gained there. EVLs serve as primary evidence that the foreign worker is qualified to meet the minimum requirements for the sponsored job.

Although a PERM application may be filed without first obtaining EVLs, Technicolor’s protocol was to wait for them. Technicolor followed this practice in Michael’s case, despite Ruby’s suggestion to Salazar that they proceed to the recruitment stage before they had received all of Michael’s EVLs.

In September 2015, Salazar sent Michael draft EVLs to provide to his former employers. This was the first time that Michael had heard about EVLs from anyone at Technicolor since he had an initial discussion with Salazar in October 2014 about providing evidence to verify his experience. During that initial discussion, Michael shared with Salazar his concern about obtaining a letter from one of his former employers in England, Observer Standard Newspapers (Observer Standard). Michael had previously been married to the daughter of the Observer Standard’s owners. Following their "messy" divorce, Michael’s ex-wife and her family had "a lot of animosity" toward him, and Michael thought it unlikely that they would assist him with the letter. Salazar told Michael that they did not need to worry about that for now and could deal with it later. Salazar never told Michael that moving forward with the green card application was dependent on obtaining an EVL from Observer Standard by a particular date.

After Salazar sent the draft EVLs to Michael in September 2015, Michael reminded Salazar of his concern about approaching Observer Standard. Salazar asked Michael if he could provide other supporting documentation of his employment and experience gained there. She did not, however, advise him of any time sensitivity. Seven weeks later, Salazar informed Michael, for the first time, that the matter was urgent. Salazar wrote to Michael: "We don’t have much time to work with on our end; therefore, we need to determine what experience we can use to frame the case and move forward to the next step." Michael tried but was unable to obtain an alternative form of documentation regarding his employment at Observer Standard.

The EVL from Observer Standard was ultimately obtained by Presson in March 2016.

IV. Because Michael Did Not Obtain a Green Card, the Reynauds Are Forced to Return to England

On January 5, 2016, Salazar informed Presson that it was very unlikely that they would be far enough into the green card process to allow Michael to stay in the United States on Technicolor payroll after his temporary work visa expired later that year. This information was not, however, conveyed to Michael at the time.

Finally, on March 7, 2016, Presson e-mailed Michael that she did not "have good news for [him]." Michael spoke with...