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Tentative Rulings for December 2, 2020
Departments 403, 501, 502, 503
There are no tentative rulings for the following cases. The hearing will go forward on
these matters. If a person is under a court order to appear, he/she must do so.
Otherwise, parties should appear unless they have notified the court that they will
submit the matter without an appearance. (See California Rules of Court, rule 3.1304(c).)
18CECG04532 Rodriguez v. Xiong (Dept. 503)
17CECG01526 Luna v. Bruce (Dept. 403)
19CECG03402 Mark v. Stalmaster (Dept. 503)
The court has continued the following cases. The deadlines for opposition and reply
papers will remain the same as for the original hearing date.
20CECG01450 Embree Asset Group, Inc. v. City of Huron is continued to
Wednesday, December 9, 2020 at 3:30 p.m. in Department 403.
________________________________________________________________
(Tentative Rulings begin at the next page)
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Tentative Rulings for Department 403
Begin at the next page
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(2)
Tentative Ruling
Re: George Neal, et al. v. Qiu Jia, et al.
Superior Court Case No. 18CECG02035
Hearing Date: December 2, 2020 (Dept. 403)
Motion: Defendants Qiu Jia, Anne Jai and Gary Chung’s motion for leave
to file cross-complaint
Tentative Ruling:
To grant. (Code Civ. Proc. § 428.10(b).) Moving parties shall file the proposed
cross-complaint within 10 days of the clerk’s service of the minute order.
Explanation:
A defendant may cross-complain against a co-defendant or third person not yet
a party to the action where the cause of action asserted “(1) arises out of the same
transaction, occurrence, or series of transactions or occurrences as the cause brought
against [it] or (2) asserts a claim, right, or interest in the property or controversy which is
the subject of the cause brought against [it].” (Code Civ. Proc. §428.10(b).)
A defendant is generally authorized to file a cross-complaint against a concurrent
tortfeasor for partial indemnity on a comparative fault basis, regardless of whether the
alleged concurrent tortfeasor was named a defendant in the original complaint. (Lemos
v. Eichel (1978) 83 Cal.App.3d 110, 117, applying American Motorcycle Assn. v. Superior
Court (1978) 20 Cal.3d 578.) Typically, cross-complaints for equitable indemnity are
transactionally related to the main action, such that defendant may bring other alleged
tortfeasors into the action by filing an equitable indemnity cross-complaint. (Newhall
Land and Farming Co. v. McCarthy Const. (2001) 88 Cal. App. 4th 769, 773; Time for Living,
Inc. v. Guy Hatfield Homes/All American Development Co. (1991) 230 Cal.App.3d 30, 39
[cross-complaint for comparative equitable indemnity “almost by definition
transactionally related to the claims asserted by the plaintiff.”].)
In the case at bench, Defendants Qiu Jia, Anne Jai and Gary Chung seek leave
to file a cross-complaint alleging indemnification, apportionment of fault and
declaratory relief related to the incident or series of events that forms the basis of the
main action. The proposed cross-complaint arises out of the same occurrence as the
main action, and the motion is unopposed. The declaration of Rickett is sufficient to show
that the cross-complaint arises out of the same incident or series of events as the main
action and also that the interest of justice would be served by allowing the filing of the
cross-complaint. Accordingly, Defendants’ motion is granted.
Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Procedure
section 1019.5, subdivision (a), no further written order is necessary. The minute order
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adopting this tentative ruling will serve as the order of the court and service by the clerk
will constitute notice of the order.
Tentative Ruling
Issued by: KCK on 12/1/20 .
(Judge’s initials) (Date)
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(20) Tentative Ruling
Re: J.H. Boyd Enterprises, Inc. v. Boyd et al
Superior Court Case No. 15CECG00915
Hearing Date: December 2, 2020 (Dept. 403)
Motion: JHBE’s Motions: (1) For Attorneys’ Fees; and (2) Enforce
Liability on Undertakings
Tentative Ruling:
To grant the motion for attorneys’ fees in the sum of $597,025.75 in favor of J.H.
Boyd Enterprises, Inc. and against Kenneth Robert Boyd and Susan K. Boyd, individually
and as Trustees of the Boyd Trust dated 12/23/1999.
To deny the motion to enforce liability on undertaking without prejudice.
Explanation:
Motion for Attorneys’ Fees
Plaintiff J.H. Boyd Enterprises, Inc. (“JHBE”) moves for an award of attorneys’ fees
in the sum of $607,244.50 plus additional fees incurred in connection with this motion.
The motion is brought pursuant to Civil Code section 1717, which provides in
relevant part: “(a) In any action on a contract, where the contract specifically provides
that attorney's fees and costs, which are incurred to enforce that contract, shall be
awarded either to one of the parties or to the prevailing party, then the party who is
determined to be the party prevailing on the contract, whether he or she is the party
specified in the contract or not, shall be entitled to reasonable attorney's fees in addition
to other costs. [¶] ... [¶] Reasonable attorney's fees shall be fixed by the court, and shall
be an element of the costs of suit. (b)(1) The court, upon notice and motion by a party,
shall determine who is the party prevailing on the contract for purposes of this section,
whether or not the suit proceeds to final judgment.”
California courts construe the term “on a contract” liberally. (Turner v.
Schultz (2009) 175 Cal.App.4th 974, 979.) It includes fees incurred offensively or
defensively. (Ibid.)
The contract providing for recovery of attorneys’ fees is the February 15, 2007
Promissory Note (“Note”) between Ken and Susan Boyd as Trustees for the Boyd Trust
Dated December 23, 1999, in favor of the Joseph Haig Boyd Living Trust Dated May 30,
1991.
The May 31, 2019 amended judgment states: "Recoverable costs and attorneys'
fees in favor of Plaintiff JHBE and against all of the Defendants shall be determined by a
memorandum of costs and Plaintiff’s motion for attorneys' fees after the foreclosure sale
has occurred and the deficiency amount, if any' has been determined.” The August 6,
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2020 deficiency judgment states: "J.H. Boyd Enterprises, Inc. is entitled to an additional
award for costs and attorney's fees, which will be separately determined in accordance
with a memorandum of costs and motion for attorney's fees to be separately filed by J.H.
Boyd Enterprises, Inc."
There is no dispute regarding JHBE’s entitlement to attorneys’ fees.
“Where a cause of action based on the contract providing for attorney's fees is
joined with other causes of action beyond the contract, the prevailing party may recover
attorney's fees under section 1717 only as they relate to the contract action." (Reynolds
Metals Co. v. Alperson (1979) 25 Cal.3d 124, 129.) But “[a]ttorney's fees need not be
apportioned when incurred for representation on an issue common to both a cause of
action in which fees are proper and one in which they are not allowed. (Id. at pp. 129-
130.)
A court assessing attorney’s fees begins with a touchstone or lodestar figure,
based on the ‘careful compilation of the time spent and reasonable hourly
compensation of each attorney . . . involved in the presentation of the case." (Serrano v.
Priest (Serrano III) (1977) 20 Cal.3d 25, 48.) The lodestar consists of "the number of hours
reasonably expended multiplied by the reasonable hourly rate. . . ." (PLCM Group, Inc. v.
Drexler (2000) 22 Cal.4th 1084, 1095, italics added; Ketchum v. Moses (2001) 24 Cal.4th
1122, 1134.)
In this case the court will not require submission of the billing invoices for review. As
JHBE points out, courts have discretion to award fees based on declarations of counsel
describing the work performed and the court’s own view of the number of hours
reasonably spent. (See, e.g., PLCM Group, Inc., supra, 22 Cal.4th at 1096 n.4; Raining
Data Corp. v. Barrenechea (2009) 175 Cal.App.4th 1363, 1367, 1375-1376 [declarations
of … counsel were sufficient to meet the burden of establishing the reasonableness of
the fees incurred, without the need to produce copies of counsel's detailed billing
statements”.])
The court is well familiar with the history and course of the litigation in this action,
and JHBE provides sufficient information for the court to assess the reasonableness of the
fees sought. JHBE provides gives a summary of the litigation for which attorneys’ fees are
sought, broken down into nine different categories: (1) the underlying suit and cross-
complaint against JHBE, which includes all activities occurring in the case before the
summary judgment/summary adjudication motions were granted in favor of JHBE, as well
as litigation related activities that occurred during and after the appeals; (2) work related
to Boyd’s efforts to obtain a stay through an undertaking supported by personal sureties;
(3) work on Appeal #1; (4) work on Appeal #2; (5) work related to the tender issue; (6)
work related to the motion for fair value determination; (7) work related to the motion to
correct the judgment; (8) miscellaneous post-appeal matters; and (9) work related to this
motion for attorneys' fees. The summaries are broken down by invoice date, amount of
invoice, identification and billing rate of the timekeepers on each invoice, the number of
hours worked per invoice, and the dollar amount billed by each timekeeper on each
invoice. (See Reddie Dec. Exh. 2.)
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Defendants Kenneth Robert Boyd and Susan K. Boyd, individually and as Trustees
of the Boyd Trust dated 12/23/1999 (hereinafter referred to as “Boyd’) raise a number of
arguments in opposition to the motion.
First, Boyd expresses concern that the first category “Suit” might include time billed
for the trial before Judge Simpson, as the trial related to the activities of the individual
directors of JHBE and whether or not the corporation should be dissolved. Scott Reddie
submitted a declaration with the reply, agreeing that fees incurred for that trial would
not be compensable, and explaining that no such fees are included in this category.
(Reddie Reply. Dec. ¶ 4.) The court is satisfied with this explanation.
Second, Boyd states that Appeal 2 included issues not surrounding the Note.
However, the appeal was from the order granting summary judgment in favor of JHBE on
Boyd’s cross-complaint. Reddie explains that the issues as to JHBE involved whether Ken
Boyd and J.H. Boyd had agreed to modify the $2.5 million Note to provide Boyd with
more time to pay the note. All of the issues as against JHBE involved the Note. (Reddie
Reply Dec. ¶ 5.) The opposition identifies no issues not involving the Note.
Third, Boyd notes that the “Tender” referred to in the summaries involved two
separate tenders that were sent simultaneously, and only one involved amounts litigated
in this case. JHBE agrees in the reply. Pointing out that the two tenders were intermingled
in the same letters, JHBE agrees in the reply to seek only 50% of the amount requested,
reducing the fees relating to the tender to $10,218.75. The court finds this offer adequately
resolves this concern.
Boyd also argues that the amount requested appears facially inflated, including:
(1) 968 hours on the suit that didn’t go to trial; (2) 338 hours fighting the bond issue; (3)
40.8 hours for post-appeal issues (which Reddie explains pertains to judgment
enforcement matters); and (4) 10.5 hours for the fees motion.
Being familiar with the course of litigation in this action, the court does not find
these hours to be unreasonable. This action was contentiously litigated and hotly
contested at all turns. Parties "cannot litigate tenaciously and then be heard to complain
about the time necessarily spent ... in response." (Serrano v. Unruh (1982) 32 Cal.3d 621,
638-639.)
Boyd also contends that JHBE should not be considered the prevailing party on
Appeal 1 because the Appellate Court reduced the amount owed on the Note from
$3,438,270.50 to $3,022,448,96 and stated that both parties were to bear their own costs.
However, this was a mere mathematical error that JHBE agreed to have corrected.
As JHBE correctly points out, unless the appellate court otherwise orders, the trial
court may award attorneys’ fees to an appellant it deems the prevailing party even
where the appellate court orders the parties to bear their own costs on appeal. (Butler-
Rupp v. Lourdeaux (2007) 154 Cal.App.4th 918, 924, citing Mustachio v. Great Western
Bank (1996) 48 Cal.App.4th 1145, 1149-1150.) JHBE was clearly the "party prevailing on
the contract" as "the party who recovered a greater relief in the action on the contract."
(Civ. Code, § 1717, subd. (b)(1).)
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Finally, Boyd argues that the motion is untimely because the amount of attorneys’
fees and costs must be included in the judgment for foreclosure. Boyd cites to Code of
Civil Procedure section 726, subdivision (b), which provides that the foreclosure decree
must declare the amount of the indebtedness secured. Subdivision (b) does not mention
attorney fees.
JHBE also cites to Hales v. Snowden (1940) 40 Cal.App.2d 801, 805, for the
proposition that a trial court is not authorized to supplement an award of attorneys’ fees
subsequent to a decree of foreclosure. But in Hales “admittedly the decree contains no
provision which directly or by implication, by way of reservation or otherwise, would
authorize the allowance of attorneys' fees for any services rendered subsequent to the
rendition and entry. (Id. at p. 805.) Here, the May 31, 2019 Amended Order for Judgment
for Foreclosure of Real Property, Etc., states: "Recoverable costs and attorneys' fees in
favor of plaintiff JHBE and against all of the Defendants shall be determined by a
memorandum of costs and Plaintiff’s motion for attorneys' fees after the foreclosure sale
has occurred and the deficiency amount, if any, has been determined." The order clearly
reserved and authorized a later award of attorney fees. The motion is not untimely.
Accordingly, attorneys’ fees will be granted in the sum of $597,025.75 ($601,244.50
requested less $10,218.75 representing half of the tender fees).
Motion to Enforce Liability on Undertaking
Boyd sought to stay enforcement of the judgment of foreclosure pending appeal
by filing an undertaking supported by personal surety declarations. After months of
objections to the undertakings and court hearings, the parties stipulated to stay
enforcement of the judgment pending appeal based on a number of personal surety
declarations.
The personal sureties obligated themselves to pay up to the following amounts of
the deficiency judgment to be entered by this Court: (1) Michelle Scribner in the amount
of $2,504,325; (2) Troy Scribner in the amount of $1,100,000; (3) Lizbeth Boyd in the amount
of $460,324; (4) Jonathan Smith and Cherie Smith in the amount of $434,000; (5) Wayne
Burks and Kay Burks in the amount of $2,577,715.50; (6) Ashli Dardenne in the amount of
$1,404,325; and (7) Cynthia Ellsworth in the amount of $1,404,325.
On March 6, 2019, the Court of Appeal issued its Opinion and on March 27, 2019,
the Court of Appeal issued a modified Opinion, affirming the order of foreclosure.
As of the date of the filing of this motion, Boyd has not paid any portion of the
deficiency judgment, which with interest through the date of the hearing, totals
$3,285,461.99. (Reddie Dec. ¶ 7, 9.) All of the personal sureties are represented by the law
firm of Coleman & Horowitt. (Reddie Dec. ¶ 9.) On September 8, 2020, more than thirty
days after entry of the deficiency judgment, counsel for JHBE sent a letter to counsel for
the personal sureties demanding that the personal sureties pay the judgment. (Reddie
Dec. ¶ 9, Exh. 6.) This motion followed.
The court will deny the motion, without prejudice, as it is premature.
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Code of Civil Procedure section 996.440 provides that the motion “shall not be
made until after entry of the final judgment in the action or proceeding in which the bond
is given and the time for appeal has expired or, if an appeal is taken, until the appeal is
finally determined." (Code Civ. Proc., § 996.440, subd. (b), emphasis added.)
In rejecting JHBE’s prior request to enter judgment against the sureties, this court
held that "the motion cannot be made until after final deficiency judgment has been
entered." (Boyd’s RJN Exh. B.) The "final deficiency judgment" was entered on August 6,
2020, and that judgment was appealed. (See RJN No. 4, at Exh. C.)
As JHBE points out, the Stipulation, signed by all the Personal Sureties and ordered
by this Court, states enforcement of the "October 31, 2016 judgment shall be stayed
pending issuance of the remittitur ... in Case No. F074903, based on the Supplemental
Undertaking, the Second Supplemental Undertaking and the Third Supplemental
Undertaking ...." (Ex. 2, at 12,23.) The Supplemental Undertaking states (a) if the order is
affirmed on appeal in whole or in part, (b) the property is sold at a foreclosure sale, (c) a
deficiency judgment is entered, and (d) the deficiency judgment is not paid within thirty
days after it becomes final, then the liability on the undertaking may be enforced. (Ex. 2,
at 38.) The Second and Third Supplemental Undertakings contain substantially similar
language regarding finality of the deficiency judgment.
The court agrees with the sureties that the deficiency judgment is not yet final
because it is currently on appeal. After the court granted JHBE’s motion for deficiency
judgment after resolution of the first appeal, Boyd filed a notice of appeal challenging
the basis for and amount of the deficiency judgment. That appeal is still pending.
JHBE relies on Sullivan v. Delta Air Lines, Inc. (1997) 15 Cal.4th 288, where the Court
pointed out “finality on appeal is not the only meaning of the phrase 'final judgment.' On
the contrary, it has long been recognized that 'No hard-and-fast definition of 'final'
judgment applicable to all situations can be given, since its finality depends somewhat
upon the purpose for which and the standpoint from which it is being considered, and it
may be final for one purpose and not for another." (ld. at pp. 303-304.) Thus, the Court
stated the meaning of finality must be considered in the context of the case and any
applicable statutes. (ld. at pp. 304-305.)
In this case, the court declines to grant the motion imposing liability on the sureties
at this time because, if Boyd is successful on the appeal of the amount of the deficiency
judgment that would impact the extent of the liability of the sureties. In light of the
pending appeal, the deficiency judgment is not final.
Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Procedure
section 1019.5, subdivision (a), no further written order is necessary. The minute order
adopting this tentative ruling will serve as the order of the court and service by the clerk
will constitute notice of the order.
Tentative Ruling
Issued By: KCK on 12/1/20 .
(Judge’s initials) (Date)
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Tentative Rulings for Department 501
Begin at the next page
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(30)
Tentative Ruling
Re: Jamie Storment v. Miguel Santillanez, JR
Superior Court No. 19CECG02689
Hearing Date: December 2, 2020 (Dept. 501)
Motions: by plaintiffs Jamie Storment, Britney McDougall and Vanessa
McDougall to quash subpoenas or, alternatively, for protective
order, and for sanctions related thereto.
Tentative Ruling:
To grant plaintiffs’ motion to quash all subpoenas, except Pacific Bell
Company as to Vanessa McDougall; Sprint PCS Wireless as to Vanessa McDougall; and
Metro PCS as to Britney McDougall. To deny a protective order and sanctions.
Explanation:
On or about September 17, 2020, and September 21, 2020, defendants caused
to be issued a number of subpoena duces tecum. The subpoenas dated September 17,
2020, are as follows:
(1) Stanislaus County Welfare Office as to Vanessa McDougall, order number
346458-012;
(2) Modesto DMV as to Vanessa McDougall, order number 346458-013;
(3) Stanislaus County Superior Court as to Vanessa McDougall, order number
346458-018;
(4) Pacific Bell Telephone Company as to Vanessa McDougall, order number
34645 8-019;
(5) Sprint PCS Wireless as to Vanessa McDougall, order number 346458-020;
(6) High Rise Financial as to Vanessa McDougall, order number 346458-011;
(7) Stanislaus County Welfare Office as to Jaime Storment, order number 345269-
016;
(8) Modesto DMV as to Jaime Storment, order number 345269-017;
(9) Stanislaus County Superior Court as to Jaime Storment, order number 345269-
018;
(10) United States Bankruptcy Court as to Jaime Storment, order number 345269-
019;
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(11) High Rise Financial as to Jaime Storment, order number 345269-015; and
(12) High Rise Financial as to Britney McDougall, order number 345264-018.
The subpoena issued on or about September 21, 2020, is to:
(13) Metro PCS as to Britney McDougall, order number 354548-001.
Thereafter, plaintiffs filed the instant motion to quash the subpoenas. Each of the
parties’ arguments in regards thereto are examined below:
1. Stanislaus County Welfare Office as to Vanessa McDougall, order number
346458-012
Plaintiffs argue that the subpoena seeks private information and that it is
overbroad. This argument is compelling and determinative. “The right of privacy
protects against the unwarranted, compelled disclosure of various private or sensitive
information regarding one's personal life ... including his or her medical history, financial
affairs, political affiliations, sexual relationships and confidential personnel information.”
(Hooser v. Superior Court (2000) 84 Cal.App.4th 997, 1003-04 [disapproved on other
grounds]; see also Cobb v. Superior Court (1979) 99 Cal.App.3d 543, 550.) This right of
privacy also applies to insurance, medical and employment records. (John B. v.
Superior Court (2006) 38 Cal.4th 1177, 1198 [medical records]; Ins. Code §§ 791.01 et
seq., 791.13 [insurance records].)
Further, the Supreme Court in Britt v. Superior Court (1978) 20 Cal.3d 844 held that
a plaintiff seeking damages for bodily injuries does not give up the right to
confidentiality of unrelated medical or psychological treatment that they have
received in the past. In Britt, the Supreme Court stated:
“Our holdings in Lifvchutz and Roberts support plaintiffs’ contention that the
discovery order in the instant case is impermissibly overbroad. As Lifvchutz
explains, plaintiffs are “not obligated to sacrifice all privacy to seek redress for a
specific [physical] mental or emotional injury”; while they may not withhold the
information that relates to any physical or mental condition which they have put
in issue by bringing this lawsuit, [footnote emitted] they are entitled to retain the
confidentiality of all unrelated medical or psychotherapeutic treatment they
may have undergone in the past. The trial court thus obviously erred in ordering
plaintiffs to disclose to defendant their entire lifetime medical histories and the
aspects of the challenged discovery order must also be vacated.” (Id. at p. 864.)
Thus, where private records which constitute “obvious invasions of interests
fundamental to personal autonomy” are sought in discovery, the burden is on the party
seeking the protected information to establish that they are entitled to such. (Williams v.
Superior Court (2017) 3 Cal.5th 531, 557; see also Davis v. Superior Court (1992) 7
Cal.App.4th 1009, 1017.) To do so, the following factors must be satisfied:
(1) The records sought are directly relevant to the issues in the case;
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(2) There is “a compelling need for discovery, and that [need is] so strong as to
outweigh the privacy right when those two competing interests are carefully
balanced;”
(3) The scope is narrowly circumscribed by the least intrusive manner; and
(4) The information is not available from other sources or by less intrusive means.
(See Williams v. Superior Court, supra, 3 Cal.5th at p. 531, and its progeny.)
Defendants seek any and all medical and billing records for one plaintiff from the
“first date of contact to the present.” It is indisputable that medical records are private
and, as plaintiffs point out, Vanessa is in her twenties, so the date range specified (“from
the point of first contact”) can theoretically include all of her interactions with the
Welfare Office since she was a child, all of which are surely irrelevant to the facts and
circumstances giving rise to the recent incident. Defendants argue that Government
Code section 6253.4, subdivision (b)(20), establishes that welfare records are subject to
public disclosure and thus a public records request could be made for the same. As
such (according to defendants), discovery rules do not apply. Defendants’ argument is
not compelling. The current dispute does not involve a public records request, but a
subpoena.
Plaintiffs’ request to quash this subpoena is granted.
2. Modesto DMV as to Vanessa McDougall, order number 346458-013
Plaintiffs object to the subpoena because it is seeks information which is
irrelevant, overbroad and private. First, with regard to relevancy, plaintiffs argue that
Vanessa was not driving at the time of the collision; she was a passenger who was
asleep at the time of the collision. So, according to plaintiffs, her driving record has
absolutely no tendency to prove or disprove any facts and circumstances giving rise to
the collision or her injuries. Plaintiffs’ argument is compelling. Although relevancy is
broad, the subject request does not appear to be reasonably calculated to lead to the
discovery of admissible evidence.
The request is also fatally overbroad. The subpoena at issue is a blanket demand;
the request asks for the entirety of plaintiff’s DMV records, theoretically from the time
she got her driver’s license to the present. However, the discovery code implies a
requirement that categories of documents to be produced in response to a deposition
subpoena be reasonably particularized from the standpoint of the party who is
subjected to the burden of producing the materials. (Calcor Space Facility, Inc. v.
Superior Court (1997) 53 Cal.App.4th 216.)
Finally, the medical records requested fall within a constitutionally protected
zone of privacy, set forth under Article I, Section 1, of California's Constitution. And yet,
defendants make no effort to overcome the presumption of privacy that such
designation creates.
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In opposition, defendants make no attempt whatsoever to justify how Vanessa’s
driving records may be relevant to the litigation. Instead, defendants again argue that
the records are subject to public disclosure and thus a public records request could be
made for the same. For the reasons stated above, this argument fails.
Plaintiffs’ request to quash this subpoena is granted.
3. Stanislaus County Superior Court as to Vanessa McDougall, order number
346458-018
Plaintiffs object to this subpoena because it seeks private information, the
demands are overbroad, and the information sought is not relevant. Plaintiffs also argue
that the subpoena seeks improper collateral source evidence, and that defendants
intend to use the information obtained to improperly impeach plaintiffs.
Plaintiff’s arguments are compelling. First, to the extent the subpoenas seek
information having to do with competency or psychological reports, such information is
private and any requests for such must be properly justified. Defendants have failed to
do so. For this reason alone, the subpoena should be quashed.
The requests are also overbroad. To the extent the subpoena seeks traffic
records, the request is overbroad for the same reasons provided with regard to DMV
records. The request for plaintiff’s criminal history is likewise overbroad. The subpoena
requests all of plaintiff’s criminal history without limitation, including a period of time
when plaintiff was a minor. These records could contain felony convictions, but they
could also contain sensitive information about third parties, including plaintiff’s minor
children, and sensitive and sealed information regarding restraining orders or cases
where the plaintiff was a victim of a violent crime. Such information is irrelevant, and
disclosure of such is unnecessary.
In opposition, defendants again argue that the information sought is
discoverable pursuant to the public records act request. This argument fails for the
reasons provided above. Defendants also argue that the psychological and
competency reports are discoverable pursuant to Evidence Code section 1017. This
may be so, but because the request does not contain any limitation having to do with
section 1017, this argument too fails.
Plaintiffs’ request to quash this subpoena is granted.
4. Pacific Bell Telephone Company as to Vanessa McDougall, order number 34645
8-019
Plaintiffs argue that the cell phone records are not relevant to any of the
elements to prove or disprove plaintiffs’ causes of action. Namely, they are not relevant
to show that the use of a cell phone contributed to the collision. Plaintiffs argue that
Vanessa was a passenger, and that she was asleep at the time of the collision. In other
words, she was not driving at the time of the collision or any time thereafter. Plaintiffs
also point to the fact that defendants have had an opportunity to depose all three
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plaintiffs and to receive and review plaintiffs’ discovery responses, which plaintiffs argue
set forth potential witnesses to the facts and circumstances giving rise to the collision.
Plaintiffs’ arguments are not compelling. First, the information sought is relevant
not because it may show that the use of cellphones contributed to the accident, but
because it may reveal witnesses. For example, if Vanessa made a telephone call right
before or after the accident, the person who she spoke to may have information and
details regarding the accident. Also, defendants admit to deposing Vanessa, but then
provide evidence to show that she did not provide meaningful testimony on the issue.
Vanessa testified that she does not have any memories of the accident or the time
immediately after. (See Cooper Decl. Exh. 5 [p 36, line 25 - p37 line 5].) As such, she did
not actually testify whether she did in fact call and speak to anyone and the telephone
records from the date of the subject accident could reasonably lead to discoverable
evidence in the form of other witnesses.
Plaintiffs’ request to quash this subpoena is denied.
5. Sprint PCS Wireless as to Vanessa McDougall, order number 346458-020
The parties make the same arguments as above (regarding Pacific Bell
Telephone Company). For the reasons provided above, plaintiffs’ request to quash this
subpoena is denied.
6. High Rise Financial as to Vanessa McDougall, order number 346458-011
Plaintiffs object to this subpoena based on invasion of privacy, relevance and
improper character evidence. Plaintiffs also argue that production of the information
would violate the collateral source rule. With regard to collateral source, plaintiffs argue
that defendants want the information so that they can have access to plaintiffs’
recovery from a collateral source, which according to plaintiffs is unavailable as a
credit against defendants’ liability and therefore inadmissible.
In opposition, defendants argue that the subpoena only seeks documents
relating to the decision made by High Rise Financial on whether to provide any pre or
post settlement funding. Specifically, defendants want access to any medical or
(medical) billing records provided to High Rise Financial. Defendants’ arguments are
somewhat compelling. The medical records are private, but they are limited to the
timeframe surrounding the car accident. Thus, they are discoverable.
On the other hand, the financial documents contained within the High Rise file
are not discoverable. A right of privacy exists as to a plaintiffs’ confidential financial
affairs, even though the information sought might lead to admissible evidence. (City of
Carmel-by-the-Sea v. Young (1970) 2 Cal.3d 259, 268; Fortunato v. Sup.Ct. (2003) 114
Cal.App.4th 475, 480-481.) Here, defendants fail to raise whatever legitimate and
important countervailing interest disclosure serves. (See Williams v. Superior Court, supra,
3 Cal.5th at p. 555.)
Thus, plaintiffs’ request to quash the subpoena is granted. Defendants must
redraft the subpoena into categories narrowly tailored.
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7. Stanislaus County Welfare Office as to Jaime Storment, order number 345269-016
The parties make the same arguments as above (regarding Stanislaus County
Welfare Office as to Vanessa McDougall). For the reasons provided above, plaintiffs’
request to quash this subpoena is granted.
8. Modesto DMV as to Jaime Storment, order number 345269-017
Plaintiffs object to the subpoena contending it seeks irrelevant and private
information and is overbroad. Plaintiffs’ argument is compelling. Jamie’s driving record
has absolutely no tendency to prove or disprove any facts or circumstances giving rise
to the collision or her injuries as this was a rear-end collision. Further, to the extent the file
contains documents related to prior accidents, these records are improper character
evidence. Finally, any citations including those for parking and non-moving violations
have nothing to do with the subject collision. This subpoena will also likely yield
information not related to the subject sports utility vehicle driven at the time of the
collision, as Jamie may have had ownership of other vehicles.
The subpoena is also fatally overbroad. The subpoena is a blanket demand; the
request asks for the entirety of plaintiff’s DMV records, theoretically from the time Jamie
got her driver’s license to the present. However, the discovery code implies a
requirement that categories of documents to be produced in response to a deposition
subpoena be reasonably particularized from the standpoint of the party who is
subjected to the burden of producing the materials. (Calcor Space Facility, Inc. v.
Superior Court, supra, 53 Cal.App.4th at p. 216.)
In opposition, defendants again argue that the records are subject to public
disclosure and thus a public records request could be made for the same. For the
reasons stated above, this argument fails.
Plaintiffs’ request to quash this subpoena is granted.
9. Stanislaus County Superior Court as to Jaime Storment, order number 345269-018
The parties makes the same arguments as above (regarding Stanislaus County
Superior Court as to Vanessa McDougall). For the reasons provided above, plaintiffs’
request to quash the subpoena is granted.
10. United States Bankruptcy Court as to Jaime Storment, order number 345269-019
Plaintiffs object to the subpoena based upon relevance and the collateral
source rule. Plaintiff’s argument regarding relevance is compelling and determinative.
Jaime’s bankruptcy records have no relevance whatsoever as to her liability or
damages contentions. Also, Jamie is in her forties, so these unlimited records could
contain information regarding her financial status for decades. Moreover, as plaintiffs
point out, Jaime has already testified that she is not making a loss of past income claim.
Finally, as plaintiffs again point out, the information is available through less intrusive
means. Should defendants need to evaluate any loss of future income claim, the
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proper subpoenas would be to plaintiff’s employer, not court records regarding any
bankruptcy (to the extent these records exist).
In opposition, defendants make no attempt whatsoever to justify how Jamie’s
bankruptcy records may be relevant to the litigation. Instead, defendants again argue
that the records are subject to public disclosure and thus a public records request
could be made for the same. For the reasons stated above, this argument fails.
Plaintiffs’ request to quash this subpoena is granted.
11. High Rise Financial as to Jaime Storment, order number 345269-015
The parties make the same arguments as above (regarding High Rise Financial
as to Vanessa McDougall). For the reasons provided above, plaintiffs’ request to quash
this subpoena is granted.
12. High Rise Financial as to Britney McDougall, order number 345264-018
The parties make the same arguments as above (regarding High Rise Financial
as to Vanessa McDougall). For the reasons provided above, plaintiffs’ request to quash
the subpoena is granted.
13. Metro PCS as to Britney McDougall, order number 354548-001
Plaintiffs argue that the cell phone records are not relevant to any of the
elements to prove or disprove plaintiffs’ causes of action. Namely, they are not relevant
to show that the use of a cell phone contributed to the collision. Plaintiffs argue that
Britney was a passenger at the time of the collision. In other words, she was not driving
at the time of the collision or any time thereafter. Plaintiffs also point to the fact that
defendants have had an opportunity to depose all three plaintiffs and to receive and
review plaintiffs’ discovery responses, which plaintiffs argue set forth potential witnesses
to the facts and circumstances giving rise to the collision.
Plaintiffs’ arguments are not compelling. First, the information sought is relevant
not because it may show that the use of cellphones contributed to the accident, but
because it may reveal witnesses. For example, if Britney made a telephone call right
before or after the accident, the person who she spoke to may have information and
details regarding the accident. Also, defendants admit to deposing Britney, but then
provide evidence to show that she did not provide meaningful testimony on the issue.
Britney testified that she believed she lost consciousness for a few minutes after the
accident and that she may have had a loss of time or gap in her memory on the date
of the subject accident. (See Cooper Decl. Exh. 6 [p 56, lines 6-19.) As such, Britney was
unable to testify whether she did in fact call and speak to anyone and the telephone
records from the date of the subject accident could reasonably lead to discoverable
evidence in the form of other witnesses.
Plaintiffs’ request to quash this subpoena is denied.
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Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Procedure
section 1019.5, subdivision (a), no further written order is necessary. The minute order
adopting this tentative ruling will serve as the order of the court and service by the clerk
will constitute notice of the order.
Tentative Ruling
Issued By: DTT on 11/25/2020 .
(Judge’s initials) (Date)
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(2)
Tentative Ruling
Re: Perez v. LiDestri Foods, Inc. et al.
Superior Court Case No. 20CECG01288
Hearing Date: December 2, 2020 (Dept. 501)
Motion: Petition to Compromise Minor’s Claim
Tentative Ruling:
To deny without prejudice. Petitioner must file an amended petition, with
appropriate supporting papers and proposed orders, and obtain new hearing date for
consideration of the amended petition. (Super. Ct. Fresno County, Local Rules, rule 2.8.4.)
Explanation:
The petition is incomplete. Petitioner failed to include page 9 of the mandatory
petition. That page explains the proposed disposition of the proceeds. Based upon the
attachments to the petition and the proposed order it appears that the bulk of the
proceeds will be placed in a blocked account for the minor. This is proper. It also
appears that petitioner is requesting that $3,000 of the proceeds be paid to her as trustee.
(See petition, Attachment 19b(5).) This proposed distribution is improper. The proceeds
may be delivered to the petitioner/mother to be held in trust for the minor if the
requirements of Probate Code section 3401, subdivision (c), have been satisfied.
However, the requirements of that section have not been satisfied and cannot be
satisfied. Despite the written assurance made in attachment 19b(5), it is clear that the
total estate of the minor exceeds $5,000. The minor is receiving a settlement of
$18,389.76.
Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Procedure
section 1019.5, subdivision (a), no further written order is necessary. The minute order
adopting this tentative ruling will serve as the order of the court and service by the clerk
will constitute notice of the order.
Tentative Ruling
Issued By: DTT on 11/23/2020 .
(Judge’s initials) (Date)
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(30)
Tentative Ruling
Re: Redwan v. Sunrun, Inc.
Superior Court Case No. 20CECG01887
Hearing Date: December 2, 2020 (Dept. 501)
Motion: by defendant Sunrun, Inc., to Compel Arbitration
Tentative Ruling:
To deny.
Explanation:
Pursuant to Code of Civil Procedure section 1013b, the moving party is required
to submit an affidavit to the court of proper e-service. Here, the moving party has not
complied with the service requirement and such failure renders the motion defective.
Defendant did file proofs of e-service with the moving papers on August 17 and
18, 2020. However, no proof is submitted to show that the appropriate electronic
service address for plaintiff’s counsel was confirmed. (See Code Civ. Proc., § 1010.6.)
This is concerning to the court because the proof of service lists the physical address of
plaintiff’s counsel as the Law Offices of Sofian Solomon Dawood at 7975 North Cedar
Avenue, Suite 102, Fresno, CA 93720. This address does not match that which is listed in
the official court file. On Odyssey, the address shown for plaintiff’s counsel is Law Offices
of Sofian Solomon Dawood P.O. Box 27377, Fresno, CA 93729.
Upon resubmission, a declaration confirming plaintiff’s counsel’s electronic
service address must be submitted. The correct physical address for plaintiff’s counsel
must also be listed.
Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Procedure
section 1019.5, subdivision (a), no further written order is necessary. The minute order
adopting this tentative ruling will serve as the order of the court and service by the clerk
will constitute notice of the order.
Tentative Ruling
Issued By: _______________DTT_______________ on ____11/30/2020_____.
(Judge’s Initials) (Date)
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Tentative Rulings for Department 502
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Tentative Rulings for Department 503
Begin at the next page
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(29) Tentative Ruling
Re: Wells Fargo Bank, N.A. v. Hudler, et al.
Superior Court Case No. 19CECG00120
Hearing Date: December 2, 2020 (Dept. 503)
Motion: Plaintiff’s motion to amend judgment
Tentative Ruling:
To grant Plaintiff's motion to amend the judgment that was entered July 10, 2020.
The Court intends to sign the proposed amended judgment.
Explanation:
The Court has both inherent and statutory power to correct clerical errors in a
judgment so as to conform it to the judgment directed by the Court. (Code Civ. Proc.,
§473(d); In re Goldberg's Estate (1938) 10 Cal.2d 709, 714.) "[A]s to clerical errors, when
the error is apparent from the face of the record, no time limit exists as far as the right to
make the correction is concerned." (Id. at p. 717.)
In the instant case, the Court finds that the error Plaintiff seeks to correct is clerical.
The motion is unopposed, no prejudice will be suffered by Defendants if it is granted, and
the Court has the authority to correct clerical errors such as an inadvertently omitted
number on a trust instrument. Accordingly, Plaintiff’s motion is granted. The Court will
sign the proposed amended judgment.
Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Procedure
section 1019.5, subdivision (a), no further written order is necessary. The minute order
adopting this tentative ruling will serve as the order of the court and service by the clerk
will constitute notice of the order.
Tentative Ruling
Issued By: KAG on 11/20/2020 .
(Judge’s initials) (Date)
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(30)
Tentative Ruling
Re: BMO Harris Bank N.A. v. Jasanvir Grewal
Superior Court Case No. 19CECG03820
Hearing Date: December 2, 2020 (Dept. 503)
Motion: Motion for Summary Judgment/Adjudication by Plaintiff BMO
Harris Bank
Tentative Ruling:
To continue the hearing on the motion for summary judgment to March 9, 2021, at
3:30 p.m., in Department 503. To vacate the trial date currently set for January 20, 2021,
and to set a trial setting conference on December 2, 2020, at 3:30 p.m. in Department
503.
Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Procedure
section 1019.5, subdivision (a), no further written order is necessary. The minute order
adopting this tentative ruling will serve as the order of the court and service by the clerk
will constitute notice of the order.
Tentative Ruling
Issued By: KAG on 11/30/2020 .
(Judge’s initials) (Date)
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(24)
Tentative Ruling
Re: Martinez v. True Blue, Inc.
Superior Court Case No. 17CECG00652
Hearing Date: December 2, 2020 (Dept. 503)
Motion: Defendants TrueBlue, Inc., and Manuel Ontiveros’ Motion for
Summary Judgment or, in the Alternative, Summary
Adjudication
Tentative Ruling:
To deny the motion in its entirety. To overrule all evidentiary objections.
Explanation:
New Evidence on Reply and Reply Separate Statement
The court disregards the new evidence defendants presented on reply, which
attempted to show that plaintiff made statements in her deposition which contradicted
the statements made in her declaration opposing this motion. This chiefly consisted of
plaintiff’s deposition responses to legal contention questions (e.g., “Were you ever
subjected to any form of discrimination [or harassment, or retaliation] because of your
gender?”). The court initially notes that new evidence is generally not considered on
reply, especially where plaintiff objects to its consideration, as is the case here. (San
Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A. (2002) 102 Cal.App.4th 308, 316; Gafcon,
Inc. v. Ponsor & Associates (2002) 98 Cal.App.4th 1388, 1426 [opposing party must object
to avoid waiver].)
But, more importantly, these deposition questions presented mixed questions of
law and fact, and thus “their basic vice when used at a deposition is that they are unfair
[and] call upon the deponent to sort out the factual material in the case according to
specific legal contentions, and to do this by memory and on the spot.” (Rifkind v. Superior
Court (1994) 22 Cal.App.4th 1255, 1262-1263 [such questions should be propounded via
written interrogatory].) Even if plaintiff had not objected, the court would have
disregarded this evidence based on the analysis in Rifkind. Moreover, the deposition
evidence that defendants presented with their moving papers is replete with statements
from plaintiff that various acts she complained of were done on account of her gender.
This is a clear indication that when she answered “no” to defendants’ questions of mixed
law and fact, she fell victim to the “basic vice” described in Rifkind, and it would be unfair
to hold that against her.
The court also has disregarded defendants’ reply separate statement, as the
summary judgment statute does not provide for such a statement. (Nazir v. United
Airlines, Inc. (2009) 178 Cal.App.4th 243, 248.)
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Declaration Signature Issue
The declaration signature issue concerns defendants’ renewed evidentiary
objections to the entirety of the four declarations presented by plaintiff. Defendants
initially filed these evidentiary objections on July 31, 2020, arguing that plaintiff’s counsel,
Kevin G. Little, failed to follow the requirements of California Rules of Court, rule 2.257
(“rule 2.257”) regarding electronic signatures on verified documents, which rendered
these declarations unsigned, unsworn, and unverified. On August 5, 2020, the court
overruled these objections based on a response filed by plaintiff which included
Mr. Little’s declaration and certification (“Certification”). But the court expressly noted
that its ruling did not foreclose defendants’ right to demand inspection of the
declarations under rule 2.257, subdivision (b)(2).
Defendants thereafter served that inspection demand, and plaintiff responded.
This prompted defendants’ renewed objections, with supporting declaration, filed
August 13, 2020. Plaintiff filed a response on August 13, 2020. The court has considered
all of these documents, and has also carefully reviewed all of plaintiff’s supporting
declarations, i.e., both those filed in support of the current motion for summary judgment
(hereafter “2020 MSJ”), as well as those filed in support of defendants’ earlier motion for
summary judgment (hereafter “2019 MSJ”). The court overrules defendants’ objections
to the entirety of the four declaration and specifically finds that plaintiff’s counsel did not
fail to follow rule 2.257, nor do there appear to be any other flagrant violations of the law.
The Certification provided only the four signature pages of each declaration,
each dated January 23, 2019. However, as required, plaintiff’s response to defendants’
rule 2.257 inspection demand attached copies of the entire declarations, each with wet
ink signatures. Defendants’ arguments rely on the purported differences between (1) the
2020 MSJ declarations as filed; (2) the declarations attached to Mr. Little’s Certification
(which, again, were only the signature pages); and (3) the declarations as attached to
the response. But when the comparison also includes examining the 2019 MSJ
declarations, it is clear that the objections must be overruled. While it does appear that
the Certification – which Mr. Little admits was hastily prepared – confused things, the
court is not concerned that Mr. Little is guilty of egregious violations of the Rules of Court,
or attempting to do a “bait and switch,” or even blatantly forging the declarants’
signatures, as suggested by defendants.
First, the court disregards changes to the declarations’ captions on the title pages
to reflect the differing hearing dates between the 2019 and 2020 motions, and also
disregards changes to the italicized language below the signature lines. These changes
are not a part of the declarations themselves, and are unimportant.
Second, the declarations of Mayra Arce and Deborah L. Marrs filed with the 2020
MSJ were identical, word-for-word, to their declarations filed with the 2019 MSJ. What
Mr. Little attached to his response clearly had the title page, for each of these
declarations, from the 2019 MSJ, whereas what was filed with the 2020 MSJ had the
updated hearing date on the title page, and also had italicized language on the
signature pages regarding the electronic filing. These changes do not constitute a
problem or indicate a violation of rule 2.257; plaintiff used the same declarations, word-
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for-word, with each motion, and the response clearly indicates that counsel obtained
each declarant’s original signature.
As for the declaration of Johni Jennings, this was somewhat muddled, although in
the end not problematic. The 2019 MSJ declaration, as filed, had two sentences at
paragraph 7, with the second sentence referring to attached exhibits (but, it should be
noted, these exhibits had already been referred to in an earlier paragraph, so the second
sentence was arguably unnecessary). The 2020 MSJ declaration, as filed, was word-for-
word the same as the 2019 MSJ declaration, except it deleted the second sentence of
paragraph 7. What Mr. Little attached to the Certification was clearly the signature page
from the 2019 MSJ declaration (i.e., with two sentences). However, what he produced
in the response was a declaration with a signature page with a one-sentence paragraph
7 (i.e., matching what was filed with the 2020 MSJ), albeit with a title page that still had
the 2019 hearing date in the caption. Still, this does not indicate any attempt at fraud on
the court, but simply a mix-up by counsel. Frankly, each signature on the pages
produced in the Certification and the response appear to be Ms. Jennings’ original
signature, and the change made to the declaration was an unimportant one. The court
accepts Mr. Little’s explanation that these were various versions of the declaration, and,
in his haste to prepare the Certification, he used the wrong version. But the court finds
no evidence suggesting that Ms. Jennings did not approve and sign each declaration
as filed in 2019 and 2020.
Finally, with plaintiff’s declaration, the 2019 and 2020 versions of her filed
declarations differed only with minor changes to paragraph 14. The Certification
attached a signature page with the 2019 version of that paragraph, but also had what
looks to be an original signature of plaintiff, dated January 23, 2019. In other words,
counsel incorrectly attached the signature page of the earlier version of plaintiff’s
declaration. What was attached to the response was a full declaration matching what
was filed with the 2020 motion: a cover page bearing the 2020 hearing date and a
signature page with the updated paragraph 14, with an original signature of plaintiff
dated July 20, 2020. While counsel clearly erred in attaching the wrong signature page
to his Certification, there does not appear to be any nefarious “bait-and-switch” here.
Rather, plaintiff’s counsel obtained plaintiff’s original signature on each version of the
declaration before e-filing it.
Merits
Retaliation Cause of Action Against Defendant TrueBlue, Inc. (“TBI”)
A retaliation claim under the Fair Employment and Housing Act (“FEHA”) arises
where the employer has discharged, expelled or otherwise discriminated against an
employee for opposing practices which are forbidden under the FEHA. (Gov. Code, §
12940, subd. (h).) “Employees may establish a prima facie case of unlawful retaliation by
showing that (1) they engaged in activities protected by the FEHA, (2) their employers
subsequently took adverse employment action against them, and (3) there was a causal
connection between the protected activity and the adverse employment action.”
(Miller v. Department of Corrections (2005) 36 Cal.4th 446, 472.) The causal connection
prong requires the plaintiff to prove that the protected activity “was a substantial
motivating reason” for the adverse employment action. (CACI No. 2505.)
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When the employer seeks summary judgment, the initial burden rests with the
employer to show that no unlawful discrimination or retaliation occurred. (Code Civ.
Proc., § 437c, subd. (p)(2); see Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 356-357;
University of Southern California v. Superior Court (1990) 222 Cal.App.3d 1028, 1036; Sada
v. Robert F. Kennedy Medical Center (1997) 56 Cal.App.4th 138, 155 [shifting burden
(McDonnell Douglas) test applies to both discrimination and retaliation claims].) The
employer may satisfy this burden by either: (1) negating an essential element of the
employee's claim; or (2) showing some “legitimate, nondiscriminatory reason” for the
action taken against the employee. (See Caldwell v. Paramount Unified School Dist.
(1995) 41 Cal.App.4th 189, 202–203.) Defendant TBI focuses on the legitimate business
reasons for its actions.
Defendant TBI presents evidence from two of its managers, Lucy Thomas and
defendant Manuel Ontiveros (“Ontiveros”), that they had received complaints
throughout plaintiff’s employment regarding her behavior with coworkers—that she
bullied them, was demeaning at times, yelled at them and used profanity, and was
disruptive to working conditions. They received complaints that her disorganization
caused chaos and infighting. She was often counseled verbally to improve her behavior
and act in a respectful and professional manner. Her 2015 year-end assessment
reflected these concerns: her lack of correct documentation caused “infighting and
confusion” about “who really sold and deserved credit”; her treatment of the team
“caused much drama”; she had “been warned multiple times” about her
documentation which “caused tracking and commission issues,” which “must be
improved in 2016”; management “continue[d] to have complaints from different level of
staff throughout the market” and the “consistent issues are her treatment of staff”; and
“[t]his cant [sic] and wont [sic] be tolerated in 2016.” Her supervisor, Lucy Thomas, stated
that in 2016 it became clear to her that plaintiff was not going to change her ways, and
both she and Regional Vice President Clint Bennett were concerned they were going to
lose other valuable employees because they could not tolerate plaintiff’s behavior, so
she believed termination was warranted. Defendant TBI presents competent evidence
establishing that no one in the company was aware that plaintiff had received her right-
to-sue notice from the Department of Fair Housing and Employment (“DFEH”) before the
termination decision was made, so there was no way the termination decision was made
in retaliation for that protected act.
Since defendant TBI has met its burden to show a legitimate, nondiscriminatory
reason for terminating plaintiff, the burden shifts to plaintiff to produce “substantial
responsive evidence that the employer’s showing was untrue or pretextual,” thereby
raising at least an inference of retaliatory motives for defendant’s employment decision.
(Hersant v. California Dept. of Social Services (1997) 57 Cal.App.4th 997, 1004-1005;
University of Southern California v. Superior Court, supra, 222 Cal.App.3d at p. 1036.)
First, it is noted that the main basis of plaintiff’s retaliation claim is not her DFEH
claim, as defendant TBI’s argument assumes, but it instead appears to center around her
allegations of complaints to management regarding defendant Ontiveros in 2014.
Defendant TBI does not deal with this complaint in its separate statement, even though
this issue was clearly raised in the complaint, so it is material on this motion. The pleadings
always determine the “scope of relevant issues on a summary judgment motion.” (Nieto
v. Blue Shield of Calif. Life & Health Ins. Co. (2010) 181 Cal.App.4th 60, 73.)
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Second, plaintiff states that, while she observed that defendant Ontiveros got
along well with female employees who flirted with him or were docile and allowed him
to micro-manage their sales, he was more rude and difficult with strong and assertive
women like plaintiff.1 Defendant Ontiveros constantly criticized plaintiff’s performance
even though she did exceptionally well in her sales. This same observation is made by
co-worker Mayra Arce, but even more compelling evidence is present by plaintiff’s
supervisor at the time, Deborah L. Marrs. Ms. Marrs states that plaintiff had a strong and
energetic personality, and that defendant Ontiveros was frequently critical of plaintiff
and tended to minimize her accomplishments, and that he demeaned her by calling her
a “good door knocker.” In 2013 and 2014, he began suggesting to Ms. Marrs, on more
than one occasion, that plaintiff be restricted to working from home, and not provided
with an office at any of the TBI office sites. Ms. Marrs consistently rejected the suggestion
because she felt it was unwarranted, and also because it would make it unnecessarily
difficult for plaintiff to follow up on leads in a timely fashion. In all her years of working
with defendant TBI and its affiliate operations, Ms. Marrs had never heard of this being
required of anyone. She states that defendant Ontiveros could not provide a compelling
reason for this suggestion, and she found it ironic that he had made it, since he himself
had a reputation for being “a difficult person.”2
Plaintiff states that, in early 2014, she learned that defendant Ontiveros held a
meeting with sales staff, from which she had been excluded, and that she was the topic
of significant discussion. Plaintiff was able to listen in on this meeting via telephone
(apparently unbeknownst to defendant Ontiveros), and she heard defendant Ontiveros
instructing those present to direct sales leads away from plaintiff to other, mostly male,
staff members. He expressed criticism of plaintiff’s commissions and instructed them to
report plaintiff if they felt they were owed some of her commissions, or that she had not
truly earned a share of commissions. In all her many years of working in sales, plaintiff had
never heard of such a meeting. Based on defendant Ontiveros’ ongoing negative
treatment of her, plaintiff complained about him to management in the spring/summer
of 2014. One of her complaints concerned the favoritism he showed, mostly toward male
employees. Plaintiff was aware that her complaint was perceived as alleging
discrimination (e.g., based on gender) because after making it she was briefed about
her equal employment rights. Again, since defendants did not address plaintiff’s 2014
complaint about defendant Ontiveros in their motion, this presents unrefuted evidence
of a FEHA-related in-house complaint made to management, and which plaintiff
contends was a basis of later retaliation from defendant TBI, via plaintiff’s supervisors.
1 The court has overruled evidentiary objections to this lay witness opinion testimony from plaintiff.
“Generally, a lay witness may not give an opinion about another's state of mind. However, a
witness may testify about objective behavior and describe behavior as being consistent with a
state of mind.” (People v. Chatman (2006) 38 Cal.4th 344, 397.) Here, plaintiff makes a declaration
about objective behavior she observed, and describes behavior consistent with a state of mind.
A lay witness' opinion testimony must be “(r)ationally based on the perception of the witness.”
(Evid. Code, § 800, subd. (a).) The rule “merely requires that witnesses express themselves at the
lowest possible level of abstraction.” (People v. Hurlic (1971) 14 Cal.App.3d 122, 127.)
2 This testimony is important as it bears on later events (after Mr. Marrs was no longer at defendant
TBI) when, apparently based largely on defendant Ontiveros’ input, plaintiff was indeed restricted
to working from home, which plaintiff contends was, at that point, an act of retaliation on
defendants’ part.
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Plaintiff presents evidence that after her complaints about defendant Ontiveros,
things became worse. Defendant Ontiveros became openly hostile and berating with
plaintiff, and actively attempted to undermine plaintiff’s sales and usurp clients. An
insufficient number of personnel were sent to job sites on her accounts, without notice,
and because of these efforts many sales people who had worked with plaintiff in the past
refused to do so. In 2015, defendant Ontiveros began to exclude plaintiff from the office
and lock her out of her computer. Plaintiff contends that what defendants characterize
as being insubordinate and disruptive behavior was simply her reactions (including her
stress-induced reactions) to all the unfair treatment. Her legitimate complaints were not
taken seriously. All of this caused her tremendous stress, and she eventually had a stroke
in 2015. When she returned to work after taking time off due to this medical issue, the
difficulties continued. Plaintiff was barred from TBI work sites, was berated, and her sales
leads and clients were diverted or undermined. Plaintiff states that defendant Ontiveros
confirmed that he was the one responsible for restricting her from offices and worksites,
and was the supervisor in charge of sales staff with regard to leads, clients, commissions,
and other matters.
“Retaliation claims are inherently fact specific, and the impact of an employer's
action in a particular case must be evaluated in context.” (Yanowitz v. L'Oreal USA, Inc.
(2005) 36 Cal.4th 1028, 1052.) The causal link between the protected activity and the
adverse action may be established by inference derived from circumstantial evidence.
An inference may be derived from evidence of the proximity in time between the
protected activity and the allegedly retaliatory employment decision. “Specifically,
when adverse employment decisions are taken within a reasonable period of time after
complaints of discrimination have been made, retaliatory intent may be inferred.”
(Passantino v. Johnson & Johnson Consumer Products, Inc. (9th Cir. 2000) 212 F.3d 493,
507.) It can also be shown by “how the plaintiff was treated in comparison to other
workers.” (Colarossi v. Coty US Inc. (2002) 97 Cal.App.4th 1142, 1153.) Here, there was a
relatively short period of time between plaintiff’s complaints regarding defendant
Ontiveros and his escalated open hostility towards her, the diverting of accounts from
her, and plaintiff being restricted to working entirely from home and being locked out of
offices and work sites. Retaliatory intent for these employment decisions can be inferred.
While defendant TBI presented evidence that its salespeople are permitted a lot of
flexibility with respect to where they can work, and are not required to work from any one
particular office or location, this did not address plaintiff’s allegation that she was
specifically required to work only from home and was prohibited from working from
branch offices. In other words, it did not address plaintiff’s contention that she was
treated differently in comparison to other similarly situated employees.
“Pretext” does not require plaintiff to show that retaliation was the only reason for
the employer's action. Rather, plaintiff must demonstrate that the protected conduct
was a “substantial motivating factor” in the adverse employment decision. (Alamo v.
Practice Management Information Corporation (2013) 219 Cal.App.4th 466, 478.) On
balance, plaintiff has presented sufficient responsive evidence that the reasons given for
plaintiff’s termination were either untrue or pretextual, thereby raising at least an
inference of retaliatory motives for not only the termination decision itself, but also for
defendant TBI’s pre-termination employment decisions mentioned in the complaint
(therefore material) but not addressed in the moving papers. Therefore, summary
adjudication of this cause of action is be denied.
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32
Intentional Infliction of Emotional Distress Cause of Action Against Defendants
TBI and Ontiveros
To establish a claim for intentional infliction of emotional distress, a plaintiff must
prove: (1) extreme and outrageous conduct by each defendant, (2) the intention to
cause or reckless disregard for the probability of causing emotional distress, and (3)
severe emotional suffering (4) caused by the conduct. (Hughes v. Pair (2006) 46 Cal.4th
1035, 1050.) Conduct deemed outrageous “must be so extreme as to exceed all bounds
of that usually tolerated in a civilized community." (Delfino v. Agilent Technologies, Inc.
(2006) 145 Cal.App.4th 790, 808-809.)
Defendants argue that all plaintiff claimed that defendant Ontiveros did was to
tell her that she twisted peoples’ words, that she was incapable of doing her job, and
that he sometimes told her to “shut up.” And as for defendant TBI’s conduct, plaintiff
claimed that it did not take her complaint regarding defendant Ontiveros seriously. In
short, defendants argue that the conduct complained of was not extreme or outrageous
enough to support a claim for intentional infliction of emotional distress.
But, again, defendants’ separate statement did not set forth the totality of the
complaint’s allegations about what acts caused plaintiff severe emotional distress. While
the separate statement referenced plaintiff’s responses to various contention
interrogatories, those responses referred to emotional distress caused by defendants
“failing to intervene to prevent misconduct,” and then stated that plaintiff was subjected
to “gender, race and age discrimination and retaliation in violation of the [FEHA].” (See,
e.g., responses 24, 34, and 44 to defendants’ special interrogatories.) In other words, the
responses simply referred defendants back to the pleading. Defendants may regard
these responses as not fully responsive to the call of the interrogatory, but, if that is the
case, they did not move to compel further responses. On this motion, defendants were
required to address plaintiff’s factual allegations about what acts caused her severe
emotional distress, and they did not.3 The court finds that summary adjudication of this
cause of action cannot be granted because defendants did not meet their burden of
production.
Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Procedure
section 1019.5, subdivision (a), no further written order is necessary. The minute order
adopting this tentative ruling will serve as the order of the court and service by the clerk
will constitute notice of the order.
Tentative Ruling
Issued By: KAG on 12/1/2020 .
(Judge’s initials) (Date)
3 In any event, as noted above, the pleadings always determine the “scope of relevant issues on
a summary judgment motion.” (Nieto v. Blue Shield, supra, 181 Cal.App.4th at p. 73.)