Tentative Rulings for December 2, 2020 Departments 403, …...2020/12/02 · 18CECG04532 Rodriguez...

1

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)

2

Tentative Rulings for Department 403

Begin at the next page

3

(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

4

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)

5

(20) Tentative Ruling

Re: J.H. Boyd Enterprises, Inc. v. Boyd et al



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,

6

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.)

7

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).)

8

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.

9

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.





Tentative Ruling

Issued By: KCK on 12/1/20 .


10



11

(30)

Tentative Ruling

Re: Jamie Storment v. Miguel Santillanez, JR

Superior Court No. 19CECG02689


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;

12

(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;

13

(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.

14

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.


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.


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

15

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.

16

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.


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

17

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.


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.

18





Tentative Ruling

Issued By: DTT on 11/25/2020 .


19

(2)

Tentative Ruling

Re: Perez v. LiDestri Foods, Inc. et al.



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.





Tentative Ruling

Issued By: DTT on 11/23/2020 .


20

(30)

Tentative Ruling

Re: Redwan v. Sunrun, Inc.



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.





Tentative Ruling

Issued By: _______________DTT_______________ on ____11/30/2020_____.

(Judge’s Initials) (Date)

21



22

THIS PAGE INTENTIONALLY LEFT BLANK

23



24

(29) Tentative Ruling

Re: Wells Fargo Bank, N.A. v. Hudler, et al.



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.





Tentative Ruling

Issued By: KAG on 11/20/2020 .


25

(30)

Tentative Ruling

Re: BMO Harris Bank N.A. v. Jasanvir Grewal



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.





Tentative Ruling



26

(24)

Tentative Ruling

Re: Martinez v. True Blue, Inc.



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.)

27

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-

28

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.)

29

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.)

30

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.

31

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.

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.





Tentative Ruling



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.)

Date post:	19-Feb-2021
Category:	Documents
Upload:	others
View:	1 times
Download:	0 times

Tentative Rulings for December 2, 2020 Departments 403, …...2020/12/02 · 18CECG04532 Rodriguez...

Documents