Superior Court, State of California
DATE: Thursday, 30 March 2023
TIME: 9:00 A.M.
Please note that for the indefinite future, all hearings will be conducted remotely as the Old Courthouse will be closed. This Department prefers that litigants use Zoom for Law and Motion and for Case Management Calendars. Please use the Zoom link below.
“A person's name is to him or her the sweetest and most important sound in any language.”—Dale Carnegie. All Courts of California celebrate the diversity of the attorneys and the litigants who appear in our Courts. Do not hesitate to correct the Court or Court Staff concerning the pronunciation of any name or how anyone prefers to be addressed. As this Court is fond of saying, “with a name like mine, I try to be careful how I pronounce the names of others.” Please inform the Court how you, or if your client is with you, you and your client prefer to be introduced. The Court encourages the use of diacritical marks, multiple surnames and the like for the names of attorneys, litigants and in court papers. You might also try but that site mispronounces my name.
You may use these links for Case Management Conferences and Trial Setting Conferences without Court permission. Informal Discovery Conferences and appearances on Ex Parte applications will be set on Order by the Court.
|Join Zoom Meeting |Join by phone: |One tap mobile |
| (669) 900-6833 |+16699006833,,961 4442 7712# |
|NFBpSjlEam5xUT09 |Meeting ID: 961 4442 7712 | |
|Meeting ID: 961 4442 7712 | | |
|Password: 017350 | | |
APPEARANCES.
Whether appearing in person or on a virtual platform, the usual custom and practices of decorum and attire apply. (See Jensen v. Superior Court (San Diego) (1984) 154 Cal.App.3d 533.). Counsel should use good quality equipment and with sufficient bandwith. Cellphones are very low quality in using a virtual platform. Please use the video function when accessing the Zoom platform. The Court expects to see the faces of the parties appearing on a virtual platform as opposed to listening to a disembodied voice.
For new Rules of Court concerning remote hearings and appearances, please review California Rules of Court, rule 3.672.
This Court expects all counsel and litigants to comply with the Tentative Rulings Procedures that are outlined in Local Civil Rule 8(E) and California Rules of Court, rule 3.1308. If the Court has not directed argument, oral argument must be permitted only if a party notifies all other parties and the Court at (408) 808-6856 before 4:00 p.m. on the court day before the hearing of the party's intention to appear. A party must notify all other parties by telephone or in person. A failure to timely notify this Court and/or the opposing parties may result in the tentative ruling being the final order in the matter.
Please notify this Court immediately if the matter will not be heard on the scheduled date. California Rules of Court, rule 3.1304(b). If a party fails to appear at a law and motion hearing without having given notice, this Court may take the matter off calendar, to be reset only upon motion, or may rule on the matter. California Rules of Court, rule 3.1304(d). A party may give notice that he or she will not appear at a law and motion hearing and submit the matter without an appearance unless this Court orders otherwise. This Court will rule on the motion as if the party had appeared. California Rules of Court, rule 3.1304(c). Any uncontested matter or matters to which stipulations have been reached can be processed through the Clerk in the usual manner. Please include a proposed order.
All proposed orders and papers should be submitted to this Department’s e-filing queue. Do not send documents to the Department email unless directed to do so.
While the Court will still allow physical appearances, all litigants are encouraged to use the Zoom platform for Law & Motion appearances and Case Management Conferences. Use of other virtual platform devices will malke it difficult for all parties fully to participate in the hearings. Please note the requirement of entering a password (highlighted above.) As for personal appearances, protocols concerning social distancing and facial coverings in compliance with the directives of the Public Health Officer will be enforced. Currently, facemasks are required in all courthouses. If you appear in person, it will be helpful if you wear a disposable paper mask while using the courtroom microphones so that your voice will not be muffled.
Individuals who wish to access the Courthouse are advised to bring a plastic bag within which to place any personal items that are to go through the metal detector located at the doorway to the courthouse.
Sign-ins will begin at about 8:30 AM. Court staff will assist you when you sign in. If you are using the Zoom virtual platform, it will helpful if you “rename” yourself as follows: in the upper right corner of the screen with your name you will see a blue box with three horizontal dots. Click on that and then click on the “rename” feature. You may type your name as: Line #/name/party. If you are a member of the public who wishes to view the Zoom session and remain anonymous, you may simply sign in as “Public.”
CIVILITY.
In the 48 years that this Judge has been involved with the legal profession, the discussion of the decline in civility in the legal profession has always been one of the top topics of continuing education classes.
This Court is aware of a study being undertaken led by Justice Brian Currey and involving various lawyer groups to redefine rules of civility. This Judge has told Justice Currey that the lack of civility is due more to the inability or unwillingness of judicial officers to enforce the existing rules.
The parties are forewarned that this Court may consider the imposition of sanctions against the party or attorney who engages in disruptive and discourteous behavior during the pendency of this litigation.
COURT REPORTERS.
This session will not be recorded. No electronic recordings, video, still photography or audio capture of this live stream is allowed without the expressed, written permission of the Superior Court of California, County of Santa Clara. State and Local Court rules prohibit photographing or recording of court proceedings whether in the courtroom or while listening on the Public Access Line or other virtual platform, without a Court Order. See Local General Rule 2(A) and 2(B); California Rules of Court, rule 1.150.
This Court no longer provides for Court Reporters in civil actions except in limited circumstances. If you wish to arrange for a court reporter, please use Local Form #CV-5100. All reporters are encouraged to work from a remote location. Please inform this Court if any reporter wishes to work in the courtroom. This Court will approve all requests to bring a court reporter. Counsel should meet and confer on the use of a court reporter so that only one reporter appears and serves as the official reporter for that hearing.
PROTOCOLS DURING THE HEARINGS.
During the calling of any hearing, this Court has found that the Zoom video platform works very well. But whether using Zoom or any telephone, it is preferable to use a landline if possible. IT IS ABSOLUTELY NECESSARY FOR ALL INDIVIDUALS TO SPEAK SLOWLY. Plaintiff should speak first, followed by any other person. All persons should spell their names for the benefit of Court Staff. Please do not use any hands-free mode if at all possible. Headsets or earbuds of good quality will be of great assistance to minimize feedback and distortion.
The Court will prepare the Final Order unless stated otherwise below or at the hearing. Counsel are to comply with California Rules of Court, rule 3.1312.
TROUBLESHOOTING TENTATIVE RULINGS.
To access a tentative ruling, move your cursor over the line number, hold down the “Control” key and click. If you see last week’s tentative rulings, you have checked prior to the posting of the current week’s tentative rulings. You will need to either “REFRESH” or “QUIT” your browser and reopen it. Another suggestion is to “clean the cache” of your browser. Finally, you may have to switch browsers. If you fail to do any of these, your browser may pull up old information from old cookies even after the tentative rulings have been posted.
This Court's tentative ruling is just that—tentative. Trial courts are not bound by their tentative rulings, which are superseded by the final order. (See Faulkinbury v. Boyd & Associates, Inc. (2010) 185 Cal.App.4th 1363, 1374-1375.) The tentative ruling allows a party to focus his or her arguments at a subsequent hearing and to attempt to convince the Court the tentative should or should not become the Court's final order. (Cowan v. Krayzman (2011) 196 Cal.App.4th 907, 917.) If you wish to challenge a tentative ruling, please refer to a specific portion of the tentative ruling to which you disagree.
|LINE # |CASE # |CASE TITLE |TENTATIVE RULING |
|LINE 1 |21CV385675 |Michelle Santos v. Amandeep Singh; Bohr Bhandal |Order of Examination of Bohr Bhandal. |
| | | |At the last appearance, Mr. Chin appeared with petitioner. Mr. Chin |
| | | |advised that Mr. Bhandal had not been served and requested a |
| | | |continuance to this date and time. The request was granted. |
| | | |Unless the parties agree otherwise, both parties are to appear in |
| | | |Department 20 at 9:00 AM via the Zoom virtual platform. The |
| | | |appropriate oath will be administered by the Court and the parties may|
| | | |conduct the examination off-line and report back to the Court. The |
| | | |parties may meet and confer on how to conduct the examination |
| | | |remotely. |
| | | |NO FORMAL TENTATIVE RULING. |
|LINE 2 |20CV365679 |Elishion, LLC; Hong Jiang v. Cell Works Group, Inc.; |Motion of Defendants for Summary Judgment. |
| | |Yatin Mundkur |Defendants CWG and Mundkur’s motion for summary judgment is DENIED. |
| | | |Defendants CWG and Mundkur’s alternative motion for summary |
| | | |adjudication of the fifth through ninth and eleventh through |
| | | |thirteenth causes of action in plaintiffs Jiang and Elishion’s FAC is |
| | | |GRANTED. Defendants CWG and Mundkur’s alternative motion for summary |
| | | |adjudication is otherwise DENIED. |
| | | |SEE ATTACHED TENTATIVE RULING. |
|LINE 3 |20CV366973 |Louis Tran v. Lisa Tran, Kathy Tran Phan, |Motion of Plaintiff for Summary Judgment or, in the Alternative, |
| | |Individually; Kathy Tran Phan, As Administrator of the|Summary Adjudication. |
| | |Estate of Charles Hoat Tran; Kathy Tran Phan, As |CONTINUED FROM 16 MARCH 2023. |
| | |Guardian Of The Estates Of Louis and Lisa Tran. |Plaintiff and Cross-complainant Louis Tran has moved for summary |
| | | |judgment/adjudication. Louis Tran received Defendants’ opposition, and|
| | | |filed a reply. The opposition, however, appears nowhere in the court |
| | | |file. Judge Kuhnle ordered Defendants to file their opposition |
| | | |materials on or before March 17, 2023. The matter was continued to |
| | | |this date. |
| | | |It appears that there is still no opposition papers on file. |
| | | |NO FORMAL TENTATIVE RULING. |
|LINE 4 |20CV366973 |Louis Tran v. Lisa Tran, Kathy Tran Phan, |Motion of Plaintiff for Summary Judgment or, in the Alternative, |
| | |Individually; Kathy Tran Phan, As Administrator of the|Summary Adjudication. |
| | |Estate of Charles Hoat Tran; Kathy Tran Phan, As |SEE LINE #3. |
| | |Guardian Of The Estates Of Louis and Lisa Tran. | |
|LINE 5 |20CV368227 |Michelle Espinoza v. Santa Clara Valley Transportation|Motion of Defendant City Of San José for Summary Judgment. |
| | |Authority; City of San José; County of Santa Clara |The City of San José’s motion for summary judgment against plaintiff |
| | | |Espinoza is GRANTED. |
| | | |SEE ATTACHED TENTATIVE RULING. |
|LINE 6 |21CV381946 |Carlos Castro v. Equinix (US) Enterprises, Inc.; |Motion of Defendants Equinix (US) Enterprises, Inc. and Equinix, Inc. |
| | |Equinix, Inc.; J. T. Magen & Co. |For Summary Judgment. |
| | | |OFF CALENDAR. |
| | | |On 24 March 2023, counsel for plaintiff filed a partial dismissal as |
| | | |to these two moving parties only. This action remains open against JT|
| | | |Magen & Company, Inc., and a cross-complaint remains open between JT |
| | | |Magen & Company, Inc. and Southland Industries, Inc. |
| | | |The following dates remain on the court’s calendar: Trial: 17 July |
| | | |2023 at 8:45 AM in Department 20. Mandatory Settlement Conference: |
| | | |July 12, 2013 at 9:00 AM in Department 20 |
| | | |NO FORMAL TENTATIVE RULING. |
|LINE 7 |19CV346678 |Premise Data Corporation v. Alex Pompe et al. |Order on Motion of Defendants to Compel Plaintiff to Produce |
| | | |Documents. |
| | | |The motion of Mr. Dawkins to compel Premise to provide the settlement |
| | | |agreement with Mr. Weiss is GRANTED. Plaintiff is to produce the |
| | | |settlement agreement within 20 days of the filing and service of this |
| | | |order. |
| | | |SEE ATTACHED TENTATIVE RULING. |
|LINE 8 |20CV372143 |Fred Broyles v. Ace Relocation Systems Inc. |Motion of Plaintiff to Compel Defendant to Provide Further Responses |
| | | |to Special Interrogatories, Set One, Form Interrogatories, Set Two, |
| | | |Request for Production of Documents, Set to and Requests for |
| | | |Admissions, Set Two. |
| | | |It appears that defendant has not filed opposition to this motion. |
| | | |NO TENTATIVE RULING. |
|LINE 9 |20CV374451 |Guadalupe Chavez v. FCA US LLC et al. |Motion of Plaintiff to Compel Defendant to Provide Further Responses |
| | | |to Request for Production of Documents (Set One) and Special |
| | | |Interrogatories (Set One). |
| | | |Set by ex parte application. Continued from 09 February 2023. |
| | | |NO TENTATIVE RULING. |
|LINE 10 |21CV376675 |Nieves Cadaoas et al. v. Arellano and Ibrahim LLC. |Motion of Defendants/Cross-Complainant Arellano And Ibrahim and Helen |
| | | |Ibrahim to Compel Edwin De Los Reyes to Comply with Subpoena |
| | | |DucesTecum. |
| | | |These Requested Documents are relevant to explore the veracity of |
| | | |Mario Cadaoas’ claim that he was living at the facility, and not |
| | | |actually somewhere else. Mr. de los Reyes did not comply with the |
| | | |subpoena and did not produce documents. |
| | | |No opposition to this motion has been filed. |
| | | |This Court does not see that this motion was served on Mr. de los |
| | | |Reyes. |
| | | |NO FORMAL TENTATIVE RULING. The parties should use the tentative |
| | | |ruling protocol to advise this court if they wish to continue the |
| | | |motion or appear and argue on the merits. |
|LINE 11 |20CV371776 |April Rae Mallord v. M Asian Fusion, et al. |Motion of Plaintiff to Enter Default. |
| | | |In the complaint, plaintiff alleges that she slipped on a wet floor at|
| | | |an event hosted by the defendants. |
| | | |Defendant Avalera answered the complaint on 10 February 2021. M Events|
| | | |LLC was defaulted on plaintiff’s complaint on 26 April 2022. |
| | | |Attempts have been made to enter other defaults but it seems that the |
| | | |parties are having issues doing so. Counsel for plaintiff may be on |
| | | |available to attend the hearing as they will be out of the country. |
| | | |This Court is inclined to specially set a default hearing in the next |
| | | |two or three weeks or so. |
| | | |NO FORMAL TENTATIVE RULING. |
|LINE 12 |22CV393836 |Genasys, Inc. v. Gregory Almeida |Petition of Plaintiff to Confirm Arbitration Award and Enter Judgment |
| | | |Thereon. |
| | | |There is no opposition to this petition. |
| | | |This petition was commenced by plaintiff/petitioner to recover payment|
| | | |for equipment that respondent failed to return to petitioner. The |
| | | |arbitrator issued an award on 08 December 2021 and granted relief to |
| | | |petitioner in the amount of $100,323.20. |
| | | |The petitioner is in good form and is GRANTED. Mr. Tufts is to prepare|
| | | |a formal order and submit it to this Department via the e-filing |
| | | |queue. |
| | | |NO FORMAL TENTATIVE RULING. |
|LINE 13 | | |SEE ATTACHED TENTATIVE RULING. |
|LINE 14 | | |SEE ATTACHED TENTATIVE RULING. |
|LINE 15 | | |SEE ATTACHED TENTATIVE RULING. |
|LINE 16 | | |SEE ATTACHED TENTATIVE RULING. |
|LINE 17 | | |SEE ATTACHED TENTATIVE RULING. |
|LINE 18 | | |SEE ATTACHED TENTATIVE RULING. |
|LINE 19 | | |SEE ATTACHED TENTATIVE RULING. |
|LINE 20 | | |SEE ATTACHED TENTATIVE RULING. |
|LINE 21 | | |SEE ATTACHED TENTATIVE RULING. |
|LINE 22 | | |SEE ATTACHED TENTATIVE RULING. |
|LINE 23 | | |SEE ATTACHED TENTATIVE RULING. |
|LINE 24 | | |SEE ATTACHED TENTATIVE RULING. |
|LINE 25 | | |SEE ATTACHED TENTATIVE RULING. |
|LINE 26 | | |SEE ATTACHED TENTATIVE RULING. |
|LINE 27 | | |SEE ATTACHED TENTATIVE RULING. |
|LINE 28 | | |SEE ATTACHED TENTATIVE RULING. |
|LINE 29 | | |SEE ATTACHED TENTATIVE RULING. |
|LINE 30 | | |SEE ATTACHED TENTATIVE RULING. |
---oooOooo---
Calendar Line 1
---oooOooo---
Calendar Line 2
| | |
|SUPERIOR COURT, STATE OF CALIFORNIA | |
|COUNTY OF SANTA CLARA | |
| | |
|DEPARTMENT 20 | |
| | |
|161 North First Street, San Jose, CA 95113 | |
|408.882.2320 · 408.882.2296 (fax) | |
|smanoukian@ | |
| |(For Clerk's Use Only) |
|CASE NO.: |20CV365679 |Hong Jiang, et al. v. Cell Works Group, Inc., et al. |
|DATE: 30 March 2023 |TIME: 9:00 am |LINE NUMBER: 2 |
|This matter will be heard by the Honorable Judge Socrates Peter Manoukian in Department 20 in the Old Courthouse, 2nd Floor, 161 North First Street, San Jose. |
|Any party opposing the tentative ruling must call Department 20 at 408.808.6856 and the opposing party no later than 4:00 PM on 29 March 2023. Please specify |
|the issue to be contested when calling the Court and Counsel. |
|---oooOooo--- |
|Order on Motion of Defendants for Summary Judgment, |
|or, in the Alternative, Summary Adjudication. |
NOTE: In an order signed on 14 March 2023 and not filed until 21 March 2023, this Court specially set this matter for today without referring to a briefing schedule. There is no indication in Odyssey whether plaintiffs were served with notice of entry of the order.
Plaintiffs filed their opposition on 23 March 2023. Although they complain about not being served with the amended notice of hearing, plaintiffs filed a substantive opposition nonetheless.
Based on the advanced hearing date of 30 March 2023, opposition was due on 16 March 2023 so the opposition is one week late. This Court has considered the opposition papers in their entirety. This Court further notes that there does not appear to be a reply brief.
This Court is prepared to proceed with the motion unless either party objects.
I. Statement of Facts.
On or about 16 March 2017, defendant Cell Works Group, Inc. (“CWG”) hired plaintiff Hong Jiang (“Jiang”) to perform services, including sales and marketing services, in exchange for performance-based compensation. (Second Amended Complaint (“SAC”), ¶9.)
On the same date, plaintiff CWG entered into a written agreement with plaintiff Elishion, LLC (“Elishion”) wherein Elishion would help defendant CWG market and sell its products and services in return for compensation and reimbursement of out-of-pocket expenses. (SAC, ¶251.)
Plaintiff Jiang is the only member and worker of plaintiff Elishion. Defendant Yatin Mundkur (“Mundkur”) is the CEO of defendant CWG and acted as an authorized agent of defendant CWG. (SAC, ¶4.) Defendant Mundkur caused defendant CWG to enter into the 16 March 2017 retention agreement with plaintiffs Jiang and Elishion. (SAC, ¶10.) Defendant Mundkur and plaintiff Jiang had a close relationship prior to her performance of services for defendant CWG. (Id.) Plaintiff Jiang trusted defendant Mundkur because of this relationship. (Id.)
In late 2017, defendant Mundkur began to promise plaintiff Jiang alternative forms of compensation including stock options and other pay. (SAC, ¶11.) In reliance thereon, plaintiff Jiang worked regularly and exclusively for defendants through July 2019, typically working over 35 hours per week and often working 60 to 70 hours per week when travelling. (SAC, ¶12.) Despite performing services for defendant CWG for at least 26 months, defendant CWG never paid plaintiff Jiang any compensation claiming she failed to earn performance-based compensation. (SAC, ¶13.)
On 13 March 2020[1], plaintiffs Jiang and Elishion commenced this action by filing a complaint against defendants CWG and Mundkur asserting causes of action for:
1. Intentional Misrepresentation
2. Negligent Misrepresentation
3. Intentional Misrepresentation
4. Negligent Misrepresentation
5. Intentional Misrepresentation
6. Negligent Misrepresentation
7. Intentional Misrepresentation
8. Negligent Misrepresentation
9. Intentional Misrepresentation
10. Negligent Misrepresentation
11. Intentional Misrepresentation
12. Negligent Misrepresentation
13. Intentional Misrepresentation
14. Negligent Misrepresentation
15. Intentional Misrepresentation
16. Negligent Misrepresentation
17. Promise Without Intent to Perform
18. Promise Without Intent to Perform
19. Promise Without Intent to Perform
20. Promise Without Intent to Perform
21. Promise Without Intent to Perform
22. Promise Without Intent to Perform
23. Promise Without Intent to Perform
24. Promise Without Intent to Perform
25. Promise Without Intent to Perform
26. Failure to Pay Minimum Wages
27. Failure to Pay Overtime Compensation
28. Violation of Cal. Labor Code §201 or, Alternatively, §202 and Cal. Labor Code §203
29. Violation of Cal. Labor Code §2802
30. Violation of Cal. Labor Code §226(a)
31. Violation of Cal. Labor Code §226(b)
32. Violation of Cal. Labor Code §1198.5(k)
33. Quantum Meruit
34. Violation of Bus. & Prof. Code §17200, et seq.
35. Breach of Contract
On 5 June 2020, defendants CWG and Mundkur jointly filed an answer to plaintiffs’ complaint.
Pursuant to a stipulation by the parties, the court issued an order on 1 April 2021 granting plaintiffs leave to file a first amended complaint (“FAC”).
On 1 April 2021, plaintiffs filed a FAC which adds the following causes of action:
1. Promise Without Intent to Perform
2. Promise Without Intent to Perform
3. Intentional Misrepresentation
4. Negligent Misrepresentation
5. Intentional Misrepresentation
6. Negligent Misrepresentation
7. Promise Without Intent to Perform
8. Promise Without Intent to Perform
9. Promise Without Intent to Perform
10. Sexual Harassment in Violation of Cal. Government Code §12940
11. Wrongful Termination in Violation of Public Policy
12. Retaliation in Violation of Cal. Labor Code §1102.5
13. Retaliation in Violation of Cal. Government Code §12940
On 7 June 2021, defendants CWG and Mundkur jointly filed an answer to plaintiffs’ FAC.
On 14 June 2022, the court set the matter for a trial on 1 May 2023.
On 4 January 2023, the court issued an order granting plaintiffs leave to file a SAC. On 4 January 2023, plaintiffs filed the operative SAC which now asserts causes of action for:
1. Intentional Misrepresentation
2. Negligent Misrepresentation
3. Promises Without Intent to Perform
4. Quantum Meruit
5. Breach of Contract
6. Promissory Estoppel
7. Failure to Pay Minimum Wages
8. Failure to Pay Overtime Compensation
9. Violation of Cal. Labor Code §201 or, Alternatively, §202 and Cal. Labor Code 203
10. Violation of Cal. Labor Code §2802
11. Violation of Cal. Labor Code §226(a)
12. Violation of Cal. Labor Code §226(b)
13. Violation of Cal. Labor Code §1198.50(k)
14. Violation of Business and Professions Code §17200, et seq.
15. Sexual Harassment in Violation of Government Code §12940
16. Retaliation in Violation of Cal. Government Code §12940 et seq.
17. Retaliation in Violation of Cal. Labor Code, §1102.5
18. Wrongful Termination in Violation of Public Policy
19. Breach of Contract
On 31 June 2022, defendants CWG and Mundkur jointly filed an answer to plaintiffs’ SAC.
On 27 February 2022, defendants CWG and Mundkur filed the motion now before the court, a motion for summary judgment/adjudication of plaintiffs’ SAC.
II. Summary Judgment Motions in General.
Any party may move for summary judgment. (Code of Civil Procedure, § 437c, subd. (a); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar).) The motion “shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code of Civil Procedure, § 437c, subd. (c); Aguilar, supra, at p. 843.) The object of the summary judgment procedure is “to cut through the parties’ pleadings” to determine whether trial is necessary to resolve the dispute. (Aguilar, supra, at p. 843.)
The “party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact…” (Aguilar, supra, 25 Cal.4th at p. 850; see Evidence Code, § 110.) “A prima facie showing is one that is sufficient to support the position of the party in question.” (Aguilar, supra, at p. 851.) A defendant moving for summary judgment may satisfy its initial burden either by producing evidence of a complete defense or by showing the plaintiff’s inability to establish a required element of the case. (Code of Civil Procedure, § 437c, subd. (p)(2); Aguilar, supra, at p. 853.) supra, at p. 853.) Allegations in the complaint alone are not enough to defeat a motion for summary judgment. (Coyme v. Krempels (1950) 36 Cal.2d 257.)
If a moving defendant makes the necessary initial showing, the burden of production shifts to the plaintiff to make a prima facie showing of the existence of a triable issue of material fact. (Code of Civil Procedure, § 437c, subd. (p)(2); see Aguilar, supra, 25 Cal.4th at p. 850.) A triable issue of material fact exists “if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar, supra, at p. 850, fn. omitted.) If the plaintiff opposing summary judgment presents evidence demonstrating the existence of a disputed material fact, the motion must be denied. (Id. at p. 856.)
Throughout the process, the trial court “must consider all of the evidence and all of the inferences drawn therefrom.” (Aguilar, supra, 25 Cal.4th at p. 856.) The moving party’s evidence is strictly construed, while the opponent’s is liberally construed. (Id. at p. 843.)
Similarly, “[a] party may seek summary adjudication on whether a cause of action, affirmative defense, or punitive damages claim has merit or whether a defendant owed a duty to a plaintiff. A motion for summary adjudication…shall proceed in all procedural respects as a motion for summary judgment.” (California Bank & Trust v. Lawlor (2013) 222 Cal.App.4th 625, 630, internal citations and quotation marks omitted.)
In addition to the facts provided by a moving defendant, the burden of production on summary judgment can shift to the plaintiff upon a showing that the plaintiff cannot factually support his claim. (See, e.g., Chavez v. Glock, Inc. (2012) 207 Cal.App.4th 1283.) Indeed, a defendant can satisfy its initial burden to show an absence of evidence through discovery responses that are factually devoid. (Id. at 1302.)
Thereafter, the plaintiff must present evidence supporting the challenged claim.
III. Analysis.
A. Defendants CWG and Mundkur’s alternative motion for summary adjudication of the first cause of action [intentional misrepresentation] of plaintiffs Jiang and Elishion’s SAC is DENIED.
“The elements of fraud that will give rise to a tort action for deceit are: (a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or "scienter"); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.” (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 974; punctuation and citations omitted.) “All of these elements must be present if actionable fraud is to be found; one element absent is fatal to recovery.” (Okun v. Morton (1988) 203 Cal.App.3d 805, 828.)
In the first cause of action of plaintiffs’ SAC, plaintiffs allege defendant Mundkur, in his capacity as CEO of defendant CWG, made eight separate misrepresentations between 8 December 2016 and 8 April 2017. Among the various misrepresentations allegedly made by defendant Mundkur, plaintiffs allege that on or about 13 March 2017, defendant “Mundkur, in his authorized capacity as the CEO of [CWG], made the following representations to Jiang and therefore Elishion, using words to the effect of: ‘In the U.S., Ventura is priced at $9,600 per report. Singula is priced at $5,000 per report. We’ve sold more than a thousand reports so far at these prices.” (SAC, ¶35.) According to plaintiffs’ SAC, “the prices for both products were much lower [and] the products had not been sold in those quantities.”
In moving for summary adjudication of this first cause of action, defendants Mundkur and CWG contend the claim fails because the representations were not false. While defendants focus on the veracity of other allegations, defendants do not discuss the truth or falsity of the statement(s) identified in the preceding paragraph. Defendants assert CWG has provided over 1000+ reports to physicians. The underlying evidence to support that assertion comes from the deposition testimony of CWG’s “person most knowledgeable” who responded in the affirmative to the question, “As of February 17, 2017, had physicians received 1,000-plus reports of [CWG]?” Such evidence does not speak to the truth or falsity of whether CWG had sold, as of 13 March 2017, more than one thousand reports at the price of $9,600 per Ventura report and $5,000 per Singula report.
For this reason alone, defendants’ alternative motion for summary adjudication of the first cause of action in plaintiffs Jiang and Elishion’s SAC is DENIED. The court need not consider whether the other misrepresentations alleged in plaintiffs’ SAC are false or not since defendants have not properly sought partial summary adjudication of a cause of action.[2]
B. Defendants CWG and Mundkur’s alternative motion for summary adjudication of the second cause of action [negligent misrepresentation] of plaintiffs Jiang and Elishion’s SAC is DENIED.
“Negligent misrepresentation is a form of deceit, the elements of which consist of (1) a misrepresentation of a past or existing material fact, (2) without reasonable grounds for believing it to be true, (3) with intent to induce another’s reliance on the fact misrepresented, (4) ignorance of the truth and justifiable reliance thereon by the party to whom the misrepresentation was directed, and (5) damages.” (Fox v. Pollack (1986) 181 Cal.App.3d 954, 962; internal citation omitted; see also Ragland v. U.S. Bank National Assn. (2012) 209 Cal.App.4th 182, 196 see also CACI, No. 1903.)
In moving for summary adjudication of plaintiffs’ second cause of action, defendants CWG and Mundkur contend the claim is barred by the applicable two-year statute of limitation. “[A] cause of action for negligent misrepresentation typically is subject to a two-year limitations period.” (E-Fab, Inc. v. Accountants, Inc. Services (2007) 153 Cal.App.4th 1308, 1316.) A claim for intentional or negligent misrepresentation accrues when a plaintiff is on notice that the defendant has made the misrepresentation. (Id. at p. 1323.)
Defendants proffer evidence that in October 2017, plaintiff Jiang met with defendant Mundkur and Taher Abbasi (CWG’s COO; hereafter, “Abbasi”) and during that meeting, Abbasi told plaintiff Jiang that (1) the GBM patient did not exist; (2) there was not a single patient that had been treated with CWG reports; (3) there were no clinical trials for solid tumors; and (4) CWG had not sold 1,000 plus reports.[3] Plaintiff Jiang sent an email on 21 October 2017 summarizing her meeting with defendant Mundkur and Abbasi. In the email, plaintiff Jiang noted that she had concerns with Mundkur’s representations related to the turnaround time of CWG products and the efficacy of CWG products.[4]
Based on this evidence, defendants contend plaintiffs should have asserted a claim for negligent misrepresentation no later than October 2019, but since plaintiffs did not commence this action until March 2020, plaintiffs’ claim for negligent misrepresentation is time-barred.
In opposition, plaintiffs only dispute the assertion that plaintiff Jiang learned about defendant CWG’s lack of sales in October 2017. Plaintiffs assert it was not until July 2018 that plaintiff Jiang was alerted to the possibility of defendant CWG’s lack of sales by Michael Castro who told plaintiff Jiang that he received his reports for free. The court finds the evidence to be in conflict with regard to when plaintiff Jiang first learned of defendant Mundkur’s misrepresentation regarding sale of 1,000 plus reports. [As discussed above and in footnote 2, the existence of a conflict with regard to one of the various misrepresentations which make up the second cause of action is enough to deny summary adjudication as to the entire second cause of action.]
Accordingly, defendants’ alternative motion for summary adjudication of the second cause of action in plaintiffs Jiang and Elishion’s SAC is DENIED.
C. Defendants CWG and Mundkur’s alternative motion for summary adjudication of the third cause of action [promises without intent to perform] of plaintiffs Jiang and Elishion’s SAC is DENIED.
“‘Promissory fraud’ is a subspecies of fraud and deceit. A promise to do something necessarily implies the intention to perform; hence, where a promise is made without such intention, there is an implied misrepresentation of fact that may be actionable fraud.” (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 973 – 974; see also CACI, No. 1902.) In Tarmann v. State Farm Mutual Automobile Ins. Co. (1991) 2 Cal.App.4th 153, 159, the court explained, “To maintain an action for deceit based on a false promise, one must specifically allege and prove, among other things, that the promisor did not intend to perform at the time he or she made the promise and that it was intended to deceive or induce the promisee to do or not do a particular thing.”
[T[he facts essential to the statement of a cause of action in fraud or deceit based on a promise made without any intention of performing it are: (1) a promise made regarding a material fact without any intention of performing it; (2) the existence of the intent at the time of making the promise; (3) the promise was made with intent to deceive or with intent to induce the party to whom it was made to enter into the transaction; (4) the promise was relied on by the party to whom it was made; (5) the party making the promise did not perform; (6) the party to whom the promise was made was injured.
(Muraoka v. Budget Rent-A-Car (1984) 160 Cal.App.3d 107, 119.)
In the SAC, plaintiffs allege thirteen different promises made by defendant Mundkur, in his capacity as CEO of defendant CWG, between 17 February 2017 and 11 April 2019. In moving for summary adjudication of plaintiffs’ third cause of action, defendants contend the alleged promises are not actually promises, but if they were promises, the promises were not false. In other words, defendants performed the promises.
One of the alleged promises is as follows: “On or about December 6, 2018, Mundkur, in his authorized capacity as CEO of [CWG], promised Jiang and therefore Elishion, using words to the effect of ‘Your expenses and upcoming trip are approved. I will get back to you in a few days on how and when to pay you,’ a material matter.” (SAC, ¶98.) Similarly, “On or about February 12, 2019, Mundkur, in his authorized capacity as CEO of [CWG], promised Jiang and therefore Elishion, using words to the effect of ‘You will be paid for your expenses from last year as well as the new expenses from the last trip to China,’ a material matter.” (SAC, ¶106.)
To support their assertion that these promises were performed, defendants proffer evidence that in order to receive reimbursement for her expenses, plaintiffs were told that they needed to submit receipts.[5] All of plaintiffs’ expenses for which they submitted receipts were in fact paid.[6]
In opposition, plaintiffs note that the evidence cited by defendants to support their assertion that all of plaintiffs’ expenses were paid [the deposition testimony of Michele MacPherson (“MacPherson”) at page 20, lines 2 – 8] is not included among the attached evidence. MacPherson is identified as defendant CWG’s person most knowledgeable and her deposition testimony is attached as exhibits 4 and 5 to the Declaration of Melinda Reichert in Support of Defendants’ Motion for Summary Judgment, etc. (“Declaration Reichert”). In this court’s review of the evidence, Exhibit 4 to the Declaration Reichert, Part 3 of 4, is the deposition testimony of MacPherson and includes a page 20. However, lines 2 – 8 reflect the following incomplete exchange:
Q: What are your current responsibilities with Cellworks?
A: I’m currently responsible for finance. Really, I would say I oversee the accountant and I’m responsible for business development with respect to payers in the US.
Q: Are you involved in business matters in China?
A: Yes. I’m responsible for business activities in…
Exhibit 5 to the Declaration Reichert, Part 4 of 4, also includes MacPherson’s deposition testimony, but that particular exhibit does not include a page 20. Plaintiffs are correct that the underlying evidence cited by defendants does not support their factual assertion that all of plaintiffs’ expenses for which they submitted receipts were in fact paid. Thus, defendants have not met their initial burden of showing that the third cause of action for promissory fraud has no merit. (Code Civ. Proc., §437c, subd. (p)(2).)
Even if defendants had met their initial burden, plaintiffs proffer evidence in opposition that plaintiff Jiang submitted expenses and receipts but that defendant CWG failed and refused to reimburse plaintiff Jiang’s expense receipts totaling more than $30,000.[7]
Accordingly, defendants’ alternative motion for summary adjudication of the third cause of action in plaintiffs Jiang and Elishion’s SAC is DENIED.
D. Defendants CWG’s alternative motion for summary adjudication of the fourth cause of action [quantum meruit] of plaintiffs Jiang and Elishion’s SAC is DENIED.
1. Quantum meruit and express agreement.
Defendant CWG argues plaintiffs’ fourth cause of action for quantum meruit cannot be asserted because it violates “the rule that equitable entitlement to a quantum meruit payment is not implied where the parties have actual contract terms covering payment.” (Hedging Concepts, Inc. v. First Alliance Mortgage Co. (1996) 41 Cal.App.4th 1410, 1420 (Hedging). In Hedging, the plaintiff financial consultant and defendant mortgage company signed a letter that arranged for plaintiff to assist defendant in acquiring ‘securitization’ transactions. The letter specifies the details of rate, timing, and duration of plaintiff’s right to payments, but did not expressly describe plaintiff’s duties in order to be entitled to such payments.
In plaintiff’s contract suit for compensation, the trial court found that the parties had formed a contract, which provided that plaintiff would attempt to arrange securitization for defendant and he would be paid a commission only if he was successful. It was also found that plaintiff did not perform the contingency and defendant had not breached the contract. The court then declared the contract rescinded and awarded a quantum meruit recovery to plaintiff with costs and prejudgment interest. On appeal, the court affirmed the judgment as to the trial courts finding on the contract terms and plaintiff’s failure to perform, but reversed the award of quantum meruit damages, prejudgment interest, and costs.
A quantum meruit or quasi-contractual recovery rests upon the equitable theory that a contract to pay for services rendered is implied by law for reasons of justice. [Citation.] However, it is well settled that there is no equitable basis for an implied-in-law promise to pay reasonable value when the parties have an actual agreement covering compensation. Willman v. Gustafson (1944) 63 Cal. App. 2d 830 [147 P.2d 636] (there can be no implied promise to pay reasonable value for services when there is an express agreement to pay a fixed sum). See also 55 California Jurisprudence Third, Restitution, sections 19, page 328 et seq.; and 58, and pages 375-376 (no ground to imply payment obligation in conflict with express contract).
Quantum meruit is an equitable theory which supplies, by implication and in furtherance of equity, implicitly missing contractual terms. Contractual terms regarding a subject are not implicitly missing when the parties have agreed on express terms regarding that subject. A quantum meruit analysis cannot supply ‘missing’ terms that are not missing. ‘The reason for the rule is simply that where the parties have freely, fairly and voluntarily bargained for certain benefits in exchange for undertaking certain obligations, it would be inequitable to imply a different liability. . . .’ Wal-Noon Corp. v. Hill (1975) 45 Cal. App. 3d 605, 613 [119 Cal. Rptr. 646]. See also Wagner v. Glendale Adventist Medical Center (1989) 216 Cal. App. 3d 1379, 1393 [265 Cal. Rptr. 412] (there can be no implied contractual term completely at variance with an express term of a contract); Wilkerson v. Wells Fargo Bank (1989) 212 Cal. App. 3d 1217, 1227 [261 Cal. Rptr. 185] (citing Wal-Noon, inequitable to imply obligation different from those in parties’ bargain); Hillsman v. Sutter Community Hospitals (1984) 153 Cal. App. 3d 743, 754 [200 Cal. Rptr. 605] (well settled that a covenant will not be implied against express terms of contract); and Shapiro v. Wells Fargo Realty Advisors (1984) 152 Cal. App. 3d 467, 482 [199 Cal. Rptr. 613], disapproved on other grounds in Foley v. Interactive Data Corp. (1988) 47 Cal. 3d 654, 688, 700, footnote 42 [254 Cal. Rptr. 211, 765 P.2d 373] (there cannot be a valid express contract and an implied contract, each embracing the same subject, but requiring different results).
(Hedging, supra, 41 Cal.App.4th at pp. 1419 – 1420.)
Defendant CWG proffers the following facts in support: Plaintiff Jiang as CEO of plaintiff Elishion signed the contract between defendant CWG and plaintiff Elishion on 16 March 2017.[8] The compensation structure for plaintiff Elishion’s work as outlined in the agreement was commission based.[9] As part of the contract, plaintiff Jiang would receive 20% of the commission of sales of defendant CWG products as detailed in the ASP table of the contract.[10] Other than the 16 March 2017 agreement between plaintiff Elishion and defendant CWG, there is no other agreement or contract between defendant CWG and plaintiff Jiang, in her individual capacity, or plaintiff Elishion.[11]
In this court’s opinion, defendant CWG’s argument is not sufficiently developed. In order to meet its initial burden, defendant CWG not only has to demonstrate that there is an actual agreement covering compensation, but must also demonstrate that the compensation now being sought by plaintiffs under quantum meruit is the same subject of the actual agreement covering compensation. Defendant CWG has not made such a showing.
2. Benefit.
Alternatively, defendant CWG contends, “To recover in quantum meruit, the ‘plaintiff must establish both that he or she was acting pursuant to either an express or implied request for such services from the defendant and that the services rendered were intended to and did benefit the defendant[.]’” (Pacific Bay Recovery, Inc. v. California Physicians' Services, Inc. (2017) 12 Cal.App.5th 200, 214-215.) Defendant CWG proffers the following facts to argue it did not receive any benefit from plaintiffs’ services in China: plaintiff Jiang testified that she benefited the company by introducing the company to the channel partner Kindstar, setting up the infrastructure for sales in China, and setting up the workflow to make sales in China.[12] Defendant CWG never signed the agreement with Kindstar, has not received any benefit from Kindstar since plaintiff Jiang’s departure, and never received any remuneration from Kindstar.[13] Plaintiffs never set up any “infrastructure” to market and sell products in China that defendant CWG is using.[14] Plaintiff cannot identify what part of the workflow she created that the company is used [sic].[15] Defendant CWG does not use the workflow set up by plaintiff Jiang.[16]
The court finds the evidence cited by defendant CWG to already be in conflict. Defendant CWG cites to selective portions of plaintiff Jiang’s deposition testimony, particularly portions of page 499 and 501, to support its assertion that plaintiffs never set up any infrastructure that defendant CWG is using or used.
Yet, in reading the intervening page 500, plaintiff Jiang’s testimony is that Michelle [MacPherson] used NextCode or used it in part. (See Jiang Deposition, page 499, line 15 to page 501, line 13.) Moreover, plaintiffs proffer additional evidence in opposition which would create a triable issue of material fact with regard to whether services rendered by plaintiffs benefitted defendant CWG.[17]
Accordingly, defendant CWG’s alternative motion for summary adjudication of the fourth cause of action in plaintiffs Jiang and Elishion’s SAC is DENIED.
E. Defendants CWG’s alternative motion for summary adjudication of the fifth cause of action [breach of contract] of plaintiffs Jiang and Elishion’s SAC is GRANTED.
“To prevail on a cause of action for breach of contract, the plaintiff must prove (1) the contract, (2) the plaintiff's performance of the contract or excuse for nonperformance, (3) the defendant's breach, and (4) the resulting damage to the plaintiff.” (Richman v. Hartley (2014) 224 Cal.App.4th 1182, 1186; see also CACI, No. 303.)
In the fifth cause of action, plaintiff Jiang alleges she entered into a contract for employment with defendant CWG. (SAC, ¶162.) “On or about March 13, 2018, [defendant Mundkur] detailed the terms of Jiang’s employment compensation.” (SAC, ¶163.) “On or about March 13, 2018, Mundkur, in his authorized capacity as CEO of [CWG], promised Jiang using words to the effect of ‘Your compensation package will include base salary, commission and equity. Someone with your experience should be paid $140-250K base salary and 350-400K commission, and 30K shares of stock. I will get you the proposal soon.’” (SAC, ¶90.)
In moving for summary adjudication of this fifth cause of action for breach of contract, defendant CWG argues no contract was ever formed as plaintiff Jiang and defendant CWG did not reach an agreement to hire plaintiff Jiang as an employee of defendant CWG. Defendant CWG proffers the following relevant facts: Plaintiff Jiang understood that plaintiff Elishion was an independent contractor of defendant CWG when she signed the contract on behalf of plaintiff Elishion.[18] In October 2017, plaintiff Jiang began to take issue with the compensation structure that was laid out in the agreement [between plaintiff Elishion and defendant CWG].[19]
On 13 March 2018, defendant Mundkur and plaintiff Jiang met to discuss plaintiff Jiang’s compensation structure and the possible options available to her in the future.[20] During the 13 March 2018 meeting, plaintiff Jiang and defendant Mundkur discussed the possibility of plaintiff Jiang becoming an employee, including a discussion on what an employee would make.[21] Defendant Mundkur sketched out the possible compensation package on a whiteboard.[22]
Plaintiff Jiang testified the 13 March 2018 meeting with defendant Mundkur was merely a discussion of proposed payment based on industry standards.[23] Plaintiff Jiang admits that at the end of the meeting plaintiff Jiang expected defendant Mundkur to write up a formal compensation package for her to review and negotiate with him from there.[24] Defendant Mundkur did not make an offer on compensation or employment package after the whiteboard session in March 2018.[25]
In opposition, plaintiff Jiang cites CSAA Ins. Exchange v. Hodroj (2021) 72 Cal.App.5th 272, 276 (CSAA) for the proposition that, “when parties agree on the material terms of a contract with the intention to later reduce it to a formal writing, failure to complete the formal writing does not negate the existence of the initial contract. [Citations omitted.] If the parties do not agree on the content of the formal writing (for example because one party wants to include something not agreed on in the first place, as Hodroj says happened here), the proposed writing is not a counteroffer; rather, the initial agreement remains binding and a rejected writing is a nullity. [Citations omitted.]”
The key language from CSAA is “when parties agree on the material terms” in the first instance. The issue, in this court’s mind, is whether the parties had mutual assent.
Mutual assent or consent is necessary to the formation of a contract. (Civ. Code, §§ 1550, 1565.) Mutual assent is determined under an objective standard applied to the outward manifestations or expressions of the parties, i.e., the reasonable meaning of their words and acts, and not their unexpressed intentions or understandings. (1 Witkin, Summary of Cal. Law (9th ed. 1987) Contracts, § 119, p. 144.) Mutual assent is a question of fact. (See BAJI No. 10.60.)
…
" '[W]hether a certain or undisputed state of facts establishes a contract is one of law for the court . . . . On the other hand, where the existence and not the validity or construction of a contract or the terms thereof is the point in issue, and the evidence is conflicting or admits of more than one inference, it is for the jury or other trier of the facts to determine whether the contract did in fact exist, . . .' [Citation.]" (Robinson & Wilson, Inc. v. Stone (1973) 5 Cal. App. 3d 396, 407 [110 Cal. Rptr. 675] [provision, as interpreted, was not enforceable because it was indefinite and uncertain as to scope of the work contemplated in undesigned portions of the building and thus did not provide a proper basis for measuring damages for breach].)
(Alexander v. Codemasters Group Limited (2002) 104 Cal.App.4th 129, 141; emphasis added.)
The evidence presented by defendant CWG is that the parties did not mutually assent on material terms and that by plaintiff Jiang’s own admission, the discussions held on 13 March 2018 were merely a proposal to be formalized in writing and subject to later negotiation. Regarding the terms of compensation, the discussion involved a range of numbers rather than any certain amount.
In opposition, plaintiff Jiang asserts that on 13 March 2018, defendant Mundkur made an offer to compensate plaintiff Jiang as an employee which plaintiff Jiang accepted. However, the underlying evidence does not support this assertion or even such an inference. Plaintiff Jiang points to the following from her deposition testimony:
Q: I will look for that. [¶] But, anyway, it is on that document that suggested what the base salary of the commissions and stock options would be if you became an employee.
A: Uh-huh.
Q: And what was your response to that?
A: I said, “Yeah, that sounds good. We just…
(Jiang Deposition, page 132, lines 1 – 8.)
Q: Okay. And tell me what happened after he put the proposal up on the board?
A: He said that he would carry it through.
Q: Okay. And is that the end of the meeting?
A: He – he would write up the formal compensation package and then I would review and possibly negotiate with him from there.
Q: Okay. So he puts up a proposal on the board. Does he discuss that proposal in any way?
A: He used industry range. So he puts up the range of the industry, what he called the industry, typical industry compensation and that because I’m a senior person, I had been CEOs of companies before, that I would be at the high end of the range.
Q: How long did this meeting last, by the way?
A: I don’t recall exactly. I would say a minimum of 30 minutes, maybe an hour.
Q: And where was the meeting? Where did the meeting take place?
A: It took place in Artiman’s office.
Q: Right. So he puts the proposal up on the board, he says that it contains the industry range for compensation, he said he would write it up and then you would review it.
A: Right.
(Jiang Deposition, page 442, lines 20 – 22.)
“A meeting of the minds is essential to the formation of a valid contract.” (In re First Capital Life Ins. Co. (1995) 34 Cal.App.4th 1283, 1288.) That the terms of compensation would be subject to further review is susceptible to only one reasonable inference – the parties had not reached a meeting of the minds with regard to compensation. Defendant Mundkur identified a range of compensation without specifying an actual certain amount and when a certain amount had been formally expressed in writing, plaintiff Jiang might find it acceptable or might not. These facts do not constitute mutual assent.
Accordingly, defendant CWG’s alternative motion for summary adjudication of the fifth cause of action in plaintiffs Jiang and Elishion’s SAC is GRANTED.
F. Defendants CWG and Mundkur’s alternative motion for summary adjudication of the sixth cause of action [promissory estoppel] of plaintiffs Jiang and Elishion’s SAC is GRANTED.
“The required elements for promissory estoppel in California are … (1) a promise clear and unambiguous in its terms; (2) reliance by the party to whom the promise is made; (3) his reliance must be both reasonable and foreseeable; and (4) the party asserting the estoppel must be injured by his reliance.” (Laks v. Coast Fed. Sav. & Loan Assn. (1976) 60 Cal.App.3d 885, 890; see also US Ecology, Inc. v. State of California (2005) 129 Cal.App.4th 887, 901 (US Ecology).).)
“The doctrine of promissory estoppel is set forth in section 90 of the Restatement of Contracts. It provides: ‘A promise which the promisor should reasonably expect to induce action or forbearance of a definite and substantial character on the part of the promise and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise.’” (Signal Hill Aviation Co. v. Stroppe (1979) 96 Cal.App.3d 627, 637 (Signal Hill).) “California recognizes the doctrine. ‘Under this doctrine a promisor is bound when he should reasonably expect a substantial change of position, either by act or forbearance, in reliance on his promise, if injustice can be avoided only by its enforcement.” (Signal Hill, supra, 96 Cal.App.3d at p. 637.) In essence, “the estoppel is a substitute for consideration.” (1 Witkin, Summary of California Law (9th ed. 1987) Contracts, §248, p. 250.) “Cases have characterized promissory estoppel claims as being basically the same as contract actions, but only missing the consideration element.” (US Ecology, supra, 129 Cal.App.4th at p. 903.) “[P]romissory estoppel claims are aimed solely at allowing recovery in equity where a contractual claim fails for a lack of consideration, and in all other respects the claim is akin to one for breach of contract.” (Id. at p. 904; see also Kajima/Ray Wilson v. Los Angeles County Metropolitan Transportation Authority (2000) 23 Cal.4th 305, 310—“Promissory estoppel is ‘a doctrine which employs equitable principles to satisfy the requirement that consideration must be given in exchange for the promise sought to be enforced.’ [Citation.]”)
In moving for summary adjudication of the sixth cause of action, defendant CWG contends promissory estoppel cannot be applied here because there was no clear and unambiguous promise. Just as in her fifth cause of action, plaintiff Jiang’s sixth cause of action for promissory estoppel is premised upon the promise found at paragraph 90 of the SAC. (SAC, ¶168—“On March 13 2018, Mundkur, in his capacity as the CEO of [CWG], made the promises for compensation to Jiang set forth in ¶90 above.”) “On or about March 13, 2018, Mundkur, in his authorized capacity as CEO of [CWG], promised Jiang using words to the effect of ‘Your compensation package will include base salary, commission and equity. Someone with your experience should be paid $140-250K base salary and 350-400K commission, and 30K shares of stock. I will get you the proposal soon.’” (SAC, ¶90.)
“Under California law, a contract will be enforced if it is sufficiently definite (and this is a question of law) for the court to ascertain the parties' obligations and to determine whether those obligations have been performed or breached.” (Ersa Grae Corp. v. Fluor Corp. (1991) 1 Cal.App.4th 613, 623 [2 Cal. Rptr. 2d 288].) “To be enforceable, a promise must be definite enough that a court can determine the scope of the duty[,] and the limits of performance must be sufficiently defined to provide a rational basis for the assessment of damages.” (Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 770 [23 Cal. Rptr.2d 810]; see also Robinson & Wilson, Inc. v. Stone, supra, 35 Cal. App. 3d at p. 407.) “Where a contract is so uncertain and indefinite that the intention of the parties in material particulars cannot be ascertained, the contract is void and unenforceable.” (Cal. Lettuce Growers v. Union Sugar Co. (1955) 45 Cal.2d 474, 481 [289 P.2d 785]; see also Civ. Code, § 1598; Ladas v. California State Auto. Assn., supra, 19 Cal.App.4th at p. 770.) “The terms of a contract are reasonably certain if they provide a basis for determining the existence of a breach and for giving an appropriate remedy.” (Rest.2d Contracts, § 33, subd. (2); accord, Weddington Productions, Inc. v. Flick, supra, 60 Cal.App.4th at p. 811.) But “[i]f … a supposed ‘contract’ does not provide a basis for determining what obligations the parties have agreed to, and hence does not make possible a determination of whether those agreed obligations have been breached, there is no contract.” (Weddington Productions, Inc. v. Flick, supra, 60 Cal.App.4th at p. 811.)
(Bustamante v. Intuit, Inc. (2006) 141 Cal.App.4th 199, 209.)
Plaintiff Jiang’s allegation, on its face[26], does not state a promise clear and unambiguous in its terms. The alleged promise by defendant Mundkur is for a range of compensation. In the absence of a clear and specific amount, how is the court to determine what base salary plaintiff Jiang should be entitled to? The same question exists with regard to commission-based compensation. Moreover, without clear and specific terms on how commissions are earned, how is the court to decide whether commission-based compensation is guaranteed or contingent? If contingent, what is a commission contingent upon? These unanswered questions lead this court to the conclusion that the alleged promise is not sufficiently clear and unambiguous in its terms to support a claim for promissory estoppel.
Accordingly, defendant CWG’s alternative motion for summary adjudication of the sixth cause of action in plaintiffs Jiang and Elishion’s SAC is GRANTED.
G. Defendants CWG and Mundkur’s alternative motion for summary adjudication of the seventh through thirteenth causes of action [failure to pay minimum wage; failure to pay overtime; violations of Labor Code] of plaintiffs Jiang and Elishion’s SAC is GRANTED, in part, and DENIED, in part.
1. Employee/ independent contractor.
Defendants CWG and Mundkur move for summary adjudication of the seventh through thirteenth causes of action on the ground that the remedies being sought therein are available only to employees and not to independent contractors such as plaintiffs.
The California Supreme Court has announced, in a unanimous decision, a new test for determining who is an employee subject to administrative regulations governing wage and hour protections and who is an independent contractor exempt from those regulations. In Dynamex Operations West v. Superior Court (2018) 4 C.5th 903, 232 C.R.3d 1, 416 P.3d 1, plaintiff drivers of defendant package delivery company brought a class action alleging that defendant had misclassified them as independent contractors, rather than as employees, in violation of 8 Cal. Code Reg. § 11090, defining employer and employee for purposes of the transportation industry. Plaintiffs further alleged that defendant's misclassification resulted in violations of its obligations to pay overtime wages and to provide accurate wage statements. Plaintiffs claimed that the tests for employment for purposes of the employee-independent contractor determination under that regulation should be the alternative ones delineated in Martinez v. Combs (2010) 49 C.4th 35, 109 C.R.3d 514, 231 P.3d 259, text, § 421: (a) to exercise control over the wages, hours or working conditions; (b) to suffer or permit to work; or (c) to engage, thereby creating a common law employment relationship. Conversely, defendant claimed that the only appropriate standard for the employee-independent contractor determination is the multifactor refinement of the right-of-control test set forth in S.G. Borello & Sons v. Department of Industrial Relations (1989) 48 C.3d 341, 256 C.R. 543, 769 P.2d 399, text, § 26. Held, (a) the Martinez alternatives are the proper standards for the employee-independent contractor determination; (b) the suffer or permit to work standard in Martinez is the standard that applies in this case; and (c) the "ABC" test adopted in other jurisdictions is the appropriate method to apply that standard.
(3 Witkin Sum. Cal. Law Agency § 45A.)
“The Legislature responded to the decision in Dynamex Operations West v. Superior Court (2018) 4 C.5th 903, 232 C.R.3d 1, 416 P.3d 1, Supp., supra, § 45A, by enacting former Lab.C. 2750.3.” (3 Witkin Sum. Cal. Law Agency § 45B.) “The 2020 Legislature repealed Lab.C. 2750.3 and restated its provisions with some changes in Lab.C. 2775 et seq. The revised statute also exempts additional occupations from its application.” (3 Witkin Sum. Cal. Law Agency § 45B.)
Labor Code section 2775, subdivision (b)(1) states:
For purposes of this code and the Unemployment Insurance Code, and for the purposes of wage orders of the Industrial Welfare Commission, a person providing labor or services for remuneration shall be considered an employee rather than an independent contractor unless the hiring entity demonstrates that all of the following conditions are satisfied:
(A) The person is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and in fact.
(B) The person performs work that is outside the usual course of the hiring entity’s business.
(C) The person is customarily engaged in an independently established trade, occupation, or business of the same nature as that involved in the work performed.
As plaintiff Jiang points out in opposition, the presumption is that all workers are employees[27] and Labor Code section 2775, subdivision (b)(1) places the burden on the hiring entity to show all three conditions enumerated above exist in order for the worker to be considered an independent contractor. The first condition which defendants CWG and Mundkur must demonstrate is that plaintiff Jiang is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and in fact. Defendants CWG and Mundkur direct the court’s attention initially to the contract between defendant CWG and plaintiff Elishion and highlight the statement expressed therein, “This is not an employment contract, and nothing in this agreement should be construed as such.”[28] Plaintiff Jiang understood that Elishion was an independent contractor of defendant CWG when she signed the contract on behalf of Elishion.[29] Defendants also proffer the fact that plaintiff Jiang was free to set her own schedule, hours, and determine the focus of her work.[30] Defendants did not tell plaintiff Jiang she had to work a certain number of hours, work in a designated location, or set a specific schedule.[31]
In opposition, plaintiff Jiang proffers evidence with regard to whether she was, in fact, free from the control and direction of defendants CWG and Mundkur in connection with her performance of the work. Defendants expected plaintiff Jiang to check her CWG email regularly.[32] Plaintiff Jiang pursued an investor at defendant Mundkur’s direction.[33] Defendant Mundkur exerted control over plaintiff Jiang’s work, including editing and approving marketing materials intended for distribution in China, directing plaintiff Jiang on which businesses to contact, and what to say to them, reviewing plaintiff Jiang’s summaries and reports from meetings with potential business partners, attending meetings with plaintiff Jiang, instructing plaintiff Jiang to perform substantial non-sales projects, and approving her for travel for defendant CWG work.[34]
The court finds the referenced evidence to be in conflict and, thus, a triable issue of material fact exists with regard to whether plaintiff Jiang shall be considered an employee rather than an independent contractor. As noted above, defendants must demonstrate all three conditions of Labor Code section 2775, subdivision (b)(1), are satisfied in order to overcome the presumption of employee status. A triable issue of material fact with regard to any one of those conditions is enough to defeat summary adjudication.
2. Exempt employee.
Even if plaintiff Jiang is considered to be an employee, defendants CWG and Mundkur contend plaintiff Jiang was an outside salesperson exempt from statutory provisions being asserted in plaintiff Jiang’s seventh through thirteenth causes of action such as overtime compensation.
In interpreting the scope of an exemption from the state's overtime laws, we begin by reviewing certain basic principles. First, "past decisions . . . teach that in light of the remedial nature of the legislative enactments authorizing the regulation of wages, hours and working conditions for the protection and benefit of employees, the statutory provisions are to be liberally construed with an eye to promoting such protection." (Industrial Welfare Com. v. Superior Court (1980) 27 Cal. 3d 690, 702 [166 Cal. Rptr. 331, 613 P.2d 579].) Thus, under California law, exemptions from statutory mandatory overtime provisions are narrowly construed. (Nordquist v. McGraw-Hill Broadcasting Co. (1995) 32 Cal. App. 4th 555, 562 [38 Cal. Rptr. 2d 221]; see also Phillips Co. v. Walling (1945) 324 U.S. 490, 493 [65 S. Ct. 807, 808, 89 L. Ed. 1095, 157 A.L.R. 876].) Moreover, the assertion of an exemption from the overtime laws is considered to be an affirmative defense, and therefore the employer bears the burden of proving the employee's exemption. (Nordquist, supra, 32 Cal. App. 4th at p. 562; Corning Glass Works v. Brennan (1974) 417 U.S. 188, 196-197 [94 S. Ct. 2223, 2229, 41 L. Ed. 2d 1].)
(Ramirez v. Yosemite Water Co. (1999) 20 Cal.4th 785, 794-795 (Ramirez).)
At issue in this case is an interpretation of section 1171 and Wage Order No. 7-80, 2(I). Section 1171, found in the chapter of the Labor Code pertaining to minimum wage, maximum hour, and overtime laws, states: "The provisions of this chapter shall apply to and include men, women and minors employed in any occupation, trade, or industry, whether compensation is measured by time, piece, or otherwise, but shall not include any individual employed as an outside salesman." (Italics added.) Wage Order No. 7-80, 2(I), implementing section 1171, in turn defined "outside salesperson" AS FOLLOWS: "[A]ny person, 18 years of age or over, who customarily and regularly works more than half the working time away from the employer's place of business selling tangible or intangible items or obtaining orders or contracts for products, services or use of facilities." (Italics added.)
(Ramirez, supra, 20 Cal.4th at p. 795.)
Having recognized California's distinctive quantitative approach to determining which employees are outside salespersons, we must then address an issue implicitly raised by the parties that caused some confusion in the trial court and the Court of Appeal: Is the number of hours worked in sales-related activities to be determined by the number of hours that the employer, according to its job description or its estimate, claims the employee should be working in sales, or should it be determined by the actual average hours the employee spent on sales activity? The logic inherent in the IWC's quantitative definition of outside salesperson dictates that neither alternative would be wholly satisfactory. On the one hand, if hours worked on sales were determined through an employer's job description, then the employer could make an employee exempt from overtime laws solely by fashioning an idealized job description that had little basis in reality. On the other hand, an employee who is supposed to be engaged in sales activities during most of his working hours and falls below the 50 percent mark due to his own substandard performance should not thereby be able to evade a valid exemption. A trial court, in determining whether the employee is an outside salesperson, must steer clear of these two pitfalls by inquiring into the realistic requirements of the job. In so doing, the court should consider, first and foremost, how the employee actually spends his or her time. But the trial court should also consider whether the employee's practice diverges from the employer's realistic expectations, whether there was any concrete expression of employer displeasure over an employee's substandard performance, and whether these expressions were themselves realistic given the actual overall requirements of the job.
(Id. at pp. 801-802.)
To establish that plaintiff Jiang spent more than half her working time related to sales, defendants proffer the fact that Jiang’s function was to find networks and channels for defendant CWG to market its products in China and Europe.[35] While in China, plaintiff Jiang would meet with channel partners and/or doctors to build relationships to market defendant CWG products.[36] When plaintiff Jiang was in the United States her time was spent managing relationships in China including communications, logistics, planning, project management, and coordination.[37] Plaintiff Jiang testified she worked more than 80 hours a week in China, compared to the average 35 hours a week.[38] Plaintiff Jiang testified that she spent no more than 50% of the days in China.[39]
In opposition, plaintiff Jiang proffers evidence that she engaged in non-sales related work.[40] However, even if the court accepts plaintiff Jiang’s assertion that she engaged in non-sales work, plaintiff Jiang’s evidence does not speak to the amount of time she devoted to such non-sales work. Defendants’ evidence is sufficient to meet its initial burden of demonstrating plaintiff Jiang spent more than half her working time devoted to sales and marketing. Plaintiff Jiang fails to present any admissible evidence in opposition which would create a triable issue of material fact.
In footnote 6 of her opposition, plaintiff Jiang does argue that the outside salesperson exemption does not apply to her tenth cause of action for violation of Labor Code section 2802.[41] Defendants challenge all of plaintiff Jiang’s Labor Code claims (seventh through thirteenth causes of action) by relying upon the outside salesperson exemption found at Labor Code section 1171. By its express language, Labor Code section 1171 applies only to that particular chapter which includes Labor Code sections 1171 through 1207. As such, the court agrees with plaintiff Jiang that the outside salesperson exemption does not preclude plaintiff Jiang from asserting the tenth cause of action for violation of Labor Code section 2802.
For the reasons discussed above, defendants CWG and Mundkur’s alternative motion for summary adjudication of the seventh, eighth, ninth, eleventh, twelfth, and thirteenth causes of action in plaintiffs Jiang and Elishion’s SAC is GRANTED. Defendants CWG and Mundkur’s alternative motion for summary adjudication of the tenth cause of action in plaintiffs Jiang and Elishion’s SAC is DENIED.
H. Defendants CWG and Mundkur’s alternative motion for summary adjudication of the fourteenth cause of action [violation of Business and Professions Code §17200 et seq.] of plaintiffs Jiang and Elishion’s SAC is DENIED.
“Business and Professions Code section 17200 et seq. prohibits unfair competition, including unlawful, unfair, and fraudulent business acts. The UCL covers a wide range of conduct. It embraces anything that can properly be called a business practice and that at the same time is forbidden by law.” (Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1143 (Korea).) “The UCL covers a wide range of conduct. It embraces anything that can properly be called a business practice and that at the same time is forbidden by law.” (Korea, supra, 29 Cal.4th at p. 1143.) “Section 17200 ‘borrows’ violations from other laws by making them independently actionable as unfair competitive practices. In addition, under section 17200, a practice may be deemed unfair even if not specifically proscribed by some other law.” (Id.) “By proscribing unlawful business practices, the UCL borrows violations of other laws and treats them as independently actionable. In addition, practices may be deemed unfair or deceptive even if not proscribed by some other law. Thus, there are three varieties of unfair competition: practices which are unlawful, or unfair, or fraudulent.” (Blakemore v. Superior Court (2005) 129 Cal.App.4th 36, 48.)
With regard to the fourteenth cause of action, defendants CWG and Mundkur argue, initially, that this claim fails because it is derivative of plaintiffs’ earlier claims and fails for the same reasons. However, in light of the court’s ruling above, not all of plaintiffs’ claims above fail.
Additionally, defendants cite Madrid v. Perot Systems Corp. (2005) 130 Cal.App.4th 440, 452 (Madrid) for the proposition that, “The UCL limits the remedies available for UCL violations to restitution and injunctive relief.” Defendants appear to argue that plaintiff Jiang is not entitled to pursue any prospective remedy such as injunctive relief, presumably because there is no threat of continuing misconduct. “Injunctive relief is appropriate only when there is a threat of continuing misconduct.” (Madrid, supra, 130 Cal.App.4th at p. 463.)
Even so, defendants acknowledge restitution is also an available remedy but do not address whether restitution is available to plaintiff Jiang here. As such, defendants have not met their initial burden. Accordingly, defendants CWG and Mundkur’s alternative motion for summary adjudication of the fourteenth cause of action in plaintiffs Jiang and Elishion’s SAC is DENIED.
I. Defendants CWG and Mundkur’s alternative motion for summary adjudication of the fifteenth cause of action [sexual harassment] of plaintiffs Jiang and Elishion’s SAC is DENIED.
1. FEHA affords no protection to independent contractors.
Defendants seek summary adjudication of plaintiff Jiang’s fifteenth cause of action for sexual harassment in violation of Government Code §12940 on the ground that FEHA affords no protection to independent contractors. “The Fair Employment and Housing Commission (FEHC), the administrative agency charged with interpreting the Act (see Gov. Code, § 12935, subds. (a), (h)), has consistently taken the position, through its decisions and regulations, that the Act affords no protection to independent contractors qua independent contractors.” (Sada v. Robert F. Kennedy Med. Ctr. (1997) 56 Cal.App.4th 138, 158.)
However, as discussed in subsection (G)(1), supra, a triable issue of material fact exists with regard to whether plaintiff Jiang shall be considered an employee rather than an independent contractor.
[Further, in opposition, plaintiff notes Government Code section 12940, subdivision (j)(1), was amended and now extends protection against harassment to “a person providing services pursuant to a contract.”]
2. Hostile Environment/ Quid Pro Quo.
As an alternative basis for summary adjudication, defendants CWG and Mundkur argue plaintiff Jiang’s claim for sexual harassment fails because the harassment, if any, was not severe and pervasive as a matter of law.
To establish a prima facie case of a hostile work environment, [a plaintiff] must show that (1) she is a member of a protected class; (2) she was subjected to unwelcome harassment; (3) the harassment was based on her protected status; (4) the harassment unreasonably interfered with her work performance by creating an intimidating, hostile, or offensive work environment; and (5) defendants are liable for the harassment.
(Ortiz v. Dameron Hospital Assn. (2019) 37 Cal.App.5th 568, 581.)
As the United States Supreme Court has recognized in the context of sexual harassment: "[N]ot all workplace conduct that may be described as 'harassment' affects a 'term, condition, or privilege' of employment within the meaning of Title VII. [Citations.] For sexual harassment to be actionable, it must be sufficiently severe or pervasive 'to alter the conditions of [the victim's] employment and create an abusive working environment.' [Citation.]" (Meritor Savings Bank v. Vinson, supra, 477 U.S. 57, 67 [106 S. Ct. 2399, 2405.) The high court reaffirmed this standard in Harris v. Forklift Systems, Inc., supra, 510 U.S. 17, 21-22 [114 S. Ct. 367, 370, 126 L. Ed. 2d 295, 302]: " Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment--an environment that a reasonable person would find hostile or abusive--is beyond Title VII's purview. Likewise, if the victim does not subjectively perceive the environment to be abusive, the conduct has not actually altered the conditions of the victim's employment, and there is no Title VII violation." Recently, the high court observed that it had "made it clear that conduct must be extreme to amount to a change in the terms and conditions of employment . . . ." (Faragher v. City of Boca Raton (1998) 524 U.S. 775, 788 [118 S. Ct. 2275, 2284, 141 L. Ed. 2d 662, 677].)
California courts have adopted the same standard in evaluating claims under the FEHA. In rejecting an FEHA claim that alleged acts of sexual harassment directed toward other women had created a hostile work environment for the plaintiff, the Court of Appeal in Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal. App. 3d 590 [262 Cal. Rptr. 842] held that the harassment complained of must be "sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment . . . ." (Id. at p. 608.) "The plaintiff must prove that the defendant's conduct would have interfered with a reasonable employee's work performance and would have seriously affected the psychological well-being of a reasonable employee and that she was actually offended." (Id. at pp. 609-610, fn. omitted.) "[H]arassment cannot be occasional, isolated, sporadic, or trivial[;] rather the plaintiff must show a concerted pattern of harassment of a repeated, routine or a generalized nature. [Citation.]" (Id. at p. 610.)
(Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 130-131.)
“[T]he required showing of severity . . . of the harassing conduct varies inversely with the pervasiveness or frequency of the conduct.” (Davis v. Team Elec. Co. (9th Cir. 2008) 520 F.3d 1080, 1096.) The test is enunciated in Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 609 – 610 where the court wrote, “Whether the sexual conduct complained of is sufficiently pervasive to create a hostile or offensive work environment must be determined from the totality of the circumstances. [Citation.] The plaintiff must prove that the defendant’s conduct would have interfered with a reasonable employee’s [footnote] work performance and would have seriously affected the psychological well-being of a reasonable employee and that she was actually offended.” “The factors that can be considered in evaluating the totality of the circumstances are: (1) the nature of the unwelcome sexual acts or works; (2) the frequency of the offensive encounters; (3) the total number of days over which all of the offensive conduct occurs; and (4) the context in which the sexually harassing conduct occurred.” (Id. at p. 610; see also Sheffield v. Los Angeles County (2003) 109 Cal.App.4th 153, 162.) Under the right circumstances, the court can make this determination as a matter of law. (See Hagberg v. California Institute of the Arts (2002) 101 Cal.App.4th 142, 150.)
Defendants CWG and Mundkur invite the court to make the determination, as a matter of law, that the alleged harassment in this case did not amount to severe or pervasive harassment. The court need not make such a determination because, as plaintiff Jiang points out in opposition, the SAC alleges more than just hostile work environment based sexual harassment. “Courts have generally recognized two distinct categories of sexual harassment claims: quid pro quo and hostile work environment. (Hicks v. Gates Rubber Co. (10th Cir. 1987) 833 F.2d 1406, 1413.) Quid pro quo harassment occurs when submission to sexual conduct is made a condition of concrete employment benefits.” (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 607 [262 Cal.Rptr. 842].)
In the SAC, plaintiff alleges, “Mundkur made the terms of employment and/or job benefits and/or expense reimbursement contingent, by words or conduct, on Jiang’s acceptance of Mundkur’s sexual advances or conduct.” (SAC, ¶220.) “In April 2019, when Jiang asked [Mundkur] why he had not reimbursed her for work-related expenses, [Mundkur] informed [plaintiff Jiang] that he had feelings for her, that his feelings were hurt, and that if she had been more cooperative she would have been paid long ago.” (SAC, ¶222.) Even if this court adjudicated the issue of hostile work environment in defendants’ favor, defendants have not addressed plaintiff Jiang’s assertion of quid pro quo sexual harassment. As noted above, defendants have not properly sought partial summary adjudication of a cause of action.
Accordingly, defendants CWG and Mundkur’s alternative motion for summary adjudication of the fifteenth cause of action in plaintiffs Jiang and Elishion’s SAC is DENIED.
J. Defendants CWG and Mundkur’s alternative motion for summary adjudication of the sixteenth cause of action [retaliation] of plaintiffs Jiang and Elishion’s SAC is DENIED.
“To establish a prima facie case of retaliation, the plaintiff must show (1) he or she engaged in a protected activity; (2) the employer subjected the employee to an adverse employment action; and (3) a causal link between the protected activity and the employer’s action. Once an employee establishes a prima facie case, the employer is required to offer a legitimate reason for the adverse employment action. If the employer produces a legitimate reason for the adverse employment action, the presumption of retaliation ‘drops out of the picture,’ and the burden shifts back to the employee to prove intentional retaliation.” (Akers v. County of San Diego (2002) 95 Cal.App.4th 1441, 1453; see also Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1065–1066.)
In her sixteenth cause of action, plaintiff Jiang alleges she “repeatedly declined and opposed Mundkur’s sexual advances. In response to Jiang’s opposition [CWG] discharged her.” (SAC, ¶¶231 – 232.) In moving for summary adjudication of this sixteenth cause of action, defendants CWG and Mundkur contend they did not subject plaintiff Jiang to an adverse employment action; rather, plaintiff Jiang simply ceased performing service for defendant CWG. In April 2019, Jiang ceased communicating with the company.[42] No one at CWG told Jiang that the agreement between CWG was terminated.[43] No one from CWG told Jiang to stop performing services for CWG.[44]
In opposition, plaintiff Jiang suggests termination need not be an affirmative act. Discharge includes a constructive discharge where a reasonable person would feel compelled to resign because the employer intentionally caused objectively intolerable working conditions or knowingly allowed them to exist. (See Pennsylvania State Police v. Suders (2004) 542 U.S. 129; Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1250 (Turner).)
“In order to establish a constructive discharge, an employee must plead and prove, by the usual preponderance of the evidence standard, that the employer either intentionally created or knowingly permitted working conditions that were so intolerable or aggravated at the time of the employee's resignation that a reasonable employer would realize that a reasonable person in the employee's position would be compelled to resign. [¶] For purposes of this standard, the requisite knowledge or intent must exist on the part of either the employer or those persons who effectively represent the employer, i.e., its officers, directors, managing agents, or supervisory employees.” (Turner v. Anheuser–Busch, Inc., at p. 1251, 32 Cal.Rptr.2d 223, 876 P.2d 1022; see Colores v. Board of Trustees (2003) 105 Cal.App.4th 1293, 1305, 130 Cal.Rptr.2d 347 [“ ‘Constructive discharge occurs when the employer's conduct effectively forces an employee to resign’ ”].)
(Garamendi v. Golden Eagle Ins. Co. (2005) 128 Cal.App.4th 452, 472.)
“Whether conditions were so intolerable or aggravated under that standard is usually a question of fact; however, summary judgment against an employee on a constructive discharge claim is appropriate when, under the undisputed facts, the decision to resign was unreasonable as a matter of law.” (Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1022.) “The conditions giving rise to the resignation must be sufficiently extraordinary and egregious to overcome the normal motivation of a competent, diligent, and reasonable employee to remain on the job to earn a livelihood and to serve his or her employer. The proper focus is on whether the resignation was coerced, not whether it was simply one rational option for the employee.” (Ibid.)
Plaintiff Jiang proffers the following facts to assert that conditions became so intolerable that a reasonable person in plaintiff Jiang’s position would be compelled to and did resign: From March 2017 through summer of 2018, plaintiff Jiang performed work, including extensive travel, at the direction of Mundkur. During this period, either Mundkur authorized plaintiff Jiang to make charges on his credit card or plaintiff Jiang submitted expenses for reimbursement and was paid by CWG.[45] In the latter half of 2018, CWG unilaterally ceased reimbursing Jiang’s work expenses.[46] CWG has failed and refused to reimburse Jiang for many of the expenses submitted for reimbursement during and after November 2018.[47] Defendants repeatedly promised to pay the remainder of incurred expenses but never did so.[48] Jiang submitted expenses and receipts on 6 November 2018, 9 November 2018, 14 February 2019, and resent them on 12 April 2019.[49] Further, Jiang left additional paper receipts on the desk of Mundkur’s assistant, Lydia Vong (“Vong”).[50] Mundkur repeatedly promised to reimburse Jiang, but when she confronted him in person in April 2019 about not reimbursing her, Mundkur took Jiang’s hands and told Jiang, “You know, I have had feelings for you and I feel hurt. If you had been more cooperative, you would have been paid long ago.”[51] CWG failed to make promised payments on Jiang’s expenses and, in response to her outreach to try to obtain a meeting to discuss her work, Mundkur refused to meet with Jiang, relaying a message through Vong that, “He said he will meet with you after he pays you.”[52] Following Vong’s text message, Mundkur and CWG never paid Jiang the unreimbursed expenses, and Mundkur never met again with Jiang.[53]
The parties paint entirely different pictures of how the relationship ended. It is this court’s opinion that a triable issue of material fact exists with regard to whether working conditions were so intolerable or aggravated at the time of plaintiff Jiang’s resignation that defendant CWG would realize that a reasonable person in plaintiff Jiang’s position would be compelled to resign.
Accordingly, defendants CWG and Mundkur’s alternative motion for summary adjudication of the sixteenth cause of action in plaintiffs Jiang and Elishion’s SAC is DENIED.
K. Defendant CWG’s alternative motion for summary adjudication of the seventeenth cause of action [retaliation, Labor Code §1102.5] of plaintiffs Jiang and Elishion’s SAC is DENIED.
Labor Code section 1102.5, subdivision (b) states:
An employer, or any person acting on behalf of the employer, shall not retaliate against an employee for disclosing information, or because the employer believes that the employee disclosed or may disclose information, to a government or law enforcement agency, to a person with authority over the employee or another employee who has the authority to investigate, discover, or correct the violation or noncompliance, or for providing information to, or testifying before, any public body conducting an investigation, hearing, or inquiry, if the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation, regardless of whether disclosing the information is part of the employee’s job duties.
“The elements of a section 1102.5(b) retaliation cause of action require that (1) the plaintiff establish a prima facie case of retaliation, (2) the defendant provide a legitimate, nonretaliatory explanation for its acts, and (3) the plaintiff show this explanation is merely a pretext for the retaliation.” (Patten v. Grant Joint Union High School Dist. (2005) 134 Cal.App.4th 1378, 1384.) To establish a prima facie case of retaliation, “a plaintiff must show (1) she engaged in a protected activity, (2) her employer subjected her to an adverse employment action, and (3) there is a causal link between the two.” (Ibid.)
As with the sixteenth cause of action, defendant CWG moves for summary adjudication of the seventeenth cause of action for retaliation under Labor Code section 1102.5, subdivision (b) on the ground that plaintiff Jiang was not subjected to an adverse employment action and plaintiff Jiang was not an employee. For the same reasons discussed above in connection with the seventh through thirteenth and sixteenth causes of action, defendants CWG’s alternative motion for summary adjudication of the seventeenth cause of action in plaintiffs Jiang and Elishion’s SAC is DENIED.
L. Defendants CWG and Mundkur’s alternative motion for summary adjudication of the eighteenth cause of action [wrongful termination in violation of public policy] of plaintiffs Jiang and Elishion’s SAC is DENIED.
“The elements of a claim for wrongful discharge in violation of public policy are (1) an employer-employee relationship, (2) the employer terminated the plaintiff's employment, (3) the termination was substantially motivated by a violation of public policy, and (4) the discharge caused the plaintiff harm.” (Yau v. Allen (2014) 229 Cal.App.4th 144, 154.)
As with the sixteenth and seventeenth causes of action, defendant CWG moves for summary adjudication of the eighteenth cause of action for wrongful termination in violation of public policy on the ground that plaintiff Jiang was not subjected to an adverse employment action. For the same reasons discussed above in connection with the sixteenth cause of action, defendants CWG’s alternative motion for summary adjudication of the eighteenth cause of action in plaintiffs Jiang and Elishion’s SAC is DENIED.
M. Defendants CWG’s alternative motion for summary adjudication of the nineteenth cause of action [breach of contract] of plaintiffs Jiang and Elishion’s SAC is DENIED.
The nineteenth cause of action by plaintiff Elishion against defendant CWG alleges defendant CWG breached the 16 March 2017 agreement which obligates CWG to reimburse plaintiff Elishion’s “out-of-pocket expenses, such as travel expenses … by failing and refusing to reimburse Elishion’s out-of-pocket expenses.” (SAC, ¶¶251 and 253.)
Defendant CWG proffers the fact that all of plaintiffs’ expenses for which they submitted receipts were in fact paid.[54] As discussed above, plaintiffs note in opposition that the evidence cited by defendants to support their assertion that all of plaintiffs’ expenses were paid [the deposition testimony of Michele MacPherson (“MacPherson”) at page 20, lines 2 – 8] is not included among the attached evidence. In any case, plaintiffs proffer evidence in opposition that the expenses for which receipts were submitted have not all been paid.[55]
Accordingly, defendants CWG’s alternative motion for summary adjudication of the nineteenth cause of action in plaintiffs Jiang and Elishion’s SAC is DENIED.
IV. Tentative Ruling.
The Tentative Ruling was duly posted.
V. Case Management.
The trial date and mandatory settlement conference date are duly noted.
VI. Order.
Defendants CWG and Mundkur’s motion for summary judgment is DENIED.
Defendants CWG and Mundkur’s alternative motion for summary adjudication of the fifth through ninth and eleventh through thirteenth causes of action in plaintiffs Jiang and Elishion’s FAC is GRANTED. Defendants CWG and Mundkur’s alternative motion for summary adjudication is otherwise DENIED.
|___________________________ |______________________________________________ |
|DATED: |HON. SOCRATES PETER MANOUKIAN |
| |Judge of the Superior Court |
| |County of Santa Clara |
---oooOooo---
Calendar Line 3
---oooOooo---
Calendar Line 4
---oooOooo---
Calendar Line 5
| | |
|SUPERIOR COURT, STATE OF CALIFORNIA | |
|COUNTY OF SANTA CLARA | |
| | |
|DEPARTMENT 20 | |
| | |
|161 North First Street, San Jose, CA 95113 | |
|408.882.2320 · 408.882.2296 (fax) | |
|smanoukian@ | |
| |(For Clerk's Use Only) |
|CASE NO.: |20CV368227 |Michelle Espinoza v. Santa Clara Valley Transportation Authority, et al. |
|DATE: 30 March 2023 |TIME: 9:00 am |LINE NUMBER: 05 |
|This matter will be heard by the Honorable Judge Socrates Peter Manoukian in Department 20 in the Old Courthouse, 2nd Floor, 161 North First Street, San Jose. |
|Any party opposing the tentative ruling must call Department 20 at 408.808.6856 and the opposing party no later than 4:00 PM on 29 March 2023. Please specify |
|the issue to be contested when calling the Court and Counsel. |
|---oooOooo--- |
|Order On Defendant City Of San José’s |
|Motion For Summary Judgment Against Plaintiff. |
I. Statement of Facts.
At approximately 10:52am on or about 10 July 2019, plaintiff Michelle Espinoza (“Espinoza”) was lawfully in the intersection of Stokes Street and Southwest Expressway in San Jose (“Subject Premises”) for the purpose of crossing the street. (Complaint, ¶¶1 and 10.) Plaintiff Espinoza, a minor by and through her guardian ad litem Karina Lomeli Arce, alleges defendants Santa Clara Valley Transportation Authority (“VTA”), County of Santa Clara (“County”), and City of San Jose (“City”) operated and maintained the Subject Premises as a public transportation station, inviting the general public to enter onto and walk on, through, and along the Subject Premises. (Complaint, ¶7.)
Defendants allowed to exist a dangerous condition at the Subject Premises by designing, constructing, maintaining, permitting another to design, construct and maintain the intersection with lack of safety gates, structures, preventing pedestrian access to train tracks while train is approaching, lack of adequate signs, bells, horns, or other warning devices regarding the proximity of the train to the sidewalk, lack of training, improper supervision of conductors and engineers. (Complaint, ¶¶8 – 9.)
As a direct and proximate result of the dangerous condition, plaintiff Espinoza was struck by a train at the Subject Premises, sustaining injuries and damages. (Complaint, ¶27.)
On 9 July 2020[56], plaintiff Espinoza, by and through her guardian ad litem, commenced this action by filing a complaint against defendants asserting a single cause of action for dangerous condition of public property (Gov. Code, §835).
On 17 August 2020, defendant VTA filed an answer to plaintiff Espinoza’s complaint. On 2 September 2020, defendant VTA filed a first amended answer to plaintiff Espinoza’s complaint.
On 24 August 2020, defendant City filed an answer to plaintiff Espinoza’s complaint and a Judicial Council form cross-complaint against VTA for (1) Indemnification; (2) Apportionment of Fault; and (3) Declaratory Relief.
On 15 September 2020, the court clerk entered dismissal of defendant County at plaintiff Espinoza’s request.
On 23 September 2020, defendant/cross-defendant VTA filed an answer to City’s cross-complaint.
On 8 July 2021, defendant/cross-defendant VTA filed a motion for judgment on the pleadings as to plaintiff Espinoza’s complaint and cross-complainant City’s cross-complaint. On 22 December 2021, the court issued an order granting defendant VTA’s motion for judgment on the pleadings as to plaintiff Espinoza’s complaint without leave to amend, but denying cross-defendant VTA’s motion for judgment on the pleadings as to City’s cross-complaint.
On 2 March 2022, the court clerk entered judgment in favor of defendant VTA against plaintiff Espinoza.
On 28 October 2022, defendant City filed the motion now before the court, a motion for summary judgment against plaintiff Espinoza.
II. Summary Judgment Motion In General.
Any party may move for summary judgment. (Code of Civil Procedure, § 437c, subd. (a); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar).) The motion “shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code of Civil Procedure, § 437c, subd. (c); Aguilar, supra, at p. 843.) The object of the summary judgment procedure is “to cut through the parties’ pleadings” to determine whether trial is necessary to resolve the dispute. (Aguilar, supra, at p. 843.)
The “party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact…” (Aguilar, supra, 25 Cal.4th at p. 850; see Evidence Code, § 110.) “A prima facie showing is one that is sufficient to support the position of the party in question.” (Aguilar, supra, at p. 851.) A defendant moving for summary judgment may satisfy its initial burden either by producing evidence of a complete defense or by showing the plaintiff’s inability to establish a required element of the case. (Code of Civil Procedure, § 437c, subd. (p)(2); Aguilar, supra, at p. 853.) supra, at p. 853.) Allegations in the complaint alone are not enough to defeat a motion for summary judgment. (Coyme v. Krempels (1950) 36 Cal.2d 257.)
If a moving defendant makes the necessary initial showing, the burden of production shifts to the plaintiff to make a prima facie showing of the existence of a triable issue of material fact. (Code of Civil Procedure, § 437c, subd. (p)(2); see Aguilar, supra, 25 Cal.4th at p. 850.) A triable issue of material fact exists “if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar, supra, at p. 850, fn. omitted.) If the plaintiff opposing summary judgment presents evidence demonstrating the existence of a disputed material fact, the motion must be denied. (Id. at p. 856.)
Throughout the process, the trial court “must consider all of the evidence and all of the inferences drawn therefrom.” (Aguilar, supra, 25 Cal.4th at p. 856.) The moving party’s evidence is strictly construed, while the opponent’s is liberally construed. (Id. at p. 843.)
Similarly, “[a] party may seek summary adjudication on whether a cause of action, affirmative defense, or punitive damages claim has merit or whether a defendant owed a duty to a plaintiff. A motion for summary adjudication…shall proceed in all procedural respects as a motion for summary judgment.” (California Bank & Trust v. Lawlor (2013) 222 Cal.App.4th 625, 630, internal citations and quotation marks omitted.)
In addition to the facts provided by a moving defendant, the burden of production on summary judgment can shift to the plaintiff upon a showing that the plaintiff cannot factually support his claim. (See, e.g., Chavez v. Glock, Inc. (2012) 207 Cal.App.4th 1283.) Indeed, a defendant can satisfy its initial burden to show an absence of evidence through discovery responses that are factually devoid. (Id. at 1302.)
Thereafter, the plaintiff must present evidence supporting the challenged claim.
III. Analysis.
N. Defendant City’s Motion For Summary Judgment Of Plaintiff Espinoza’s Complaint Is GRANTED.
The sole cause of action asserted by plaintiff Espinoza is one for dangerous condition of public property pursuant to Government Code, § 835. Government Code, § 835 provides the basis for liability in an action against a public entity for an injury caused by the dangerous condition of public property.
To establish liability under Government Code section 835, the following essential elements must be proved:
1. The public property was in a dangerous condition at the time of the injury;
2. The injury to the plaintiff was proximately caused by the dangerous condition;
3. The kind of injury that occurred was reasonably foreseeable as a consequence of the dangerous condition; and
4. Either:
a. The dangerous condition was created by a public employee’s negligent or wrongful act or omission within the scope of his or her employment, or
b. The entity had actual or constructive notice of the condition a sufficient time before the injury occurred to have taken reasonable measures to protect against the injury.
(Government Code, § 835; see also Thimon v. City of Newark (2020) 44 Cal.App.5th 745, 753 (Thimon); see also Cordova v. City of Los Angeles (2015) 61 Cal.4th 1099, 1105; see also 2 Van Alstyne, California Government Tort Liability Practice (4th ed. 2006) §12.5, pp. 795 – 796; see also CACI, No. 1100.)
In moving for summary judgment of plaintiff Espinoza’s complaint, defendant City asserts a number of arguments. Among them, defendant City contends it is not liable because it did not own or control the property where plaintiff Espinoza sustained her injury.
“[P]laintiffs seek to impose liability under section 835, which states that a public entity may be liable for injury caused by “a dangerous condition of its property.” For purposes of this section, property of a public entity means real or personal property “owned or controlled by the public entity.” (§ 830, subd. (c).)[57] A public entity may not be held liable under section 835 for a dangerous condition of property that it does not own or control. [Citations omitted.]”
(Goddard v. Department of Fish & Wildlife (2015) 243 Cal.App.4th 350, 358-359; emphasis added; see also CACI, No. 1100.)
In support of this argument, defendant City proffers the following evidence: VTA owns and operates a network of light rail lines and trains in Santa Clara County.[58] The accident took place on the Vasona light rail line, which goes from downtown San Jose to downtown Campbell.[59] Defendant City did not own or control the property where plaintiff Espinoza was struck by the VTA train.[60] VTA owns the property at which the accident occurred.[61] Plaintiff Espinoza is unable to identify any property owned or controlled by defendant City that was the cause of her injury.[62] When asked to admit that no property owned or controlled by defendant City “proximately caused any injury to plaintiff within the meaning of Government Code, § 835, plaintiff Espinoza responded that she “lacks sufficient information or knowledge on which to admit or deny this request and therefor denies.”[63]
In opposition, plaintiff Espinoza argues initially that defendant City’s evidence is insufficient to meet its initial burden. The Court disagrees.
Defendant City has proffered affirmative evidence that it did not own or control the property where the accident occurred. Furthermore, defendant City proffers evidence of devoid discovery responses from plaintiff Espinoza regarding ownership and control of the property at issue. “Where plaintiffs have had adequate opportunity for discovery, their factually devoid responses to discovery requests may ‘show’ that one or more elements of their claim ‘cannot be established.’” (Weil & Brown et al., CAL. PRAC. GUIDE: Civil Procedure before Trial (The Rutter Group 2018) ¶10:245.20, p. 10-108 citing Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 590—“a moving defendant may rely on factually devoid discovery responses to shift the burden of proof pursuant to Code of Civil Procedure, § 437c, subdivision (o)(2). Once the burden shifts as a result of the factually devoid discovery responses, the plaintiff must set forth the specific facts which prove the existence of a triable issue of material fact.”)
Plaintiff Espinoza argues further that defendant City’s own evidence admits ownership when defendant City asserts, “The accident took place on the Vasona light rail line, which goes from downtown San Jose to downtown Campbell.” This statement does not overcome or conflict with defendant City’s affirmative evidence that Defendant City did not own or control the property where plaintiff Espinoza was struck by the VTA train; and VTA owns the property at which the accident occurred.
Plaintiff Espinoza argues further that there is no dispute that Del Mar High School is within the City of San Jose. Plaintiff Espinoza submits her own additional evidence that the intersection where this incident occurred borders Del Mar High School.[64] Many students cross this intersection.[65] That Del Mar High School borders/ is adjacent to the intersection is neither here nor there as it is not the location of the subject accident.
Finally, plaintiff Espinoza asserts that defendant City does not allow VTA to use its horns.[66] The underlying evidence to support this factual assertion is a news release from defendant City dated May 20, 2022 which states, in relevant part, “Partial quiet zone in Japantown, neighborhoods north of downtown at Union Pacific Railroad crossings … Today, the City of San Jose and local elected officials celebrated the start of a partial quiet zone along the Union Pacific Railroad rail right-of-way running from Diridon Station through North San Jose.”
At best, plaintiff Espinoza’s factual assertion is underdeveloped. The date of the news release post-dates the subject accident by almost three years. Moreover, there is nothing contained in the statement tying the location of the “quiet zone” identified in the news release to the specific location of the subject accident.
As such, the court does not find plaintiff Espinoza’s evidence sufficient to create a triable issue of material fact with regard to defendant City’s “ownership or control” of the subject accident site. Plaintiff Espinoza has not presented any admissible evidence which would create a triable issue of material fact with regard to defendant City’s “ownership or control” of the subject accident site. Since this finding is dispositive, the He Locdeclines to address defendant City’s other arguments in support of summary judgment.
For the reasons stated above, defendant City’s motion for summary judgment against plaintiff Espinoza is GRANTED.
IV. Tentative Ruling.
The Tentative Ruling was duly posted.
V. Case Management.
The settlement conference and trial dates will REMAIN AS SET.
VI. Order.
Defendant City’s motion for summary judgment against plaintiff Espinoza is GRANTED.
|___________________________ |______________________________________________ |
|DATED: |HON. SOCRATES PETER MANOUKIAN |
| |Judge of the Superior Court |
| |County of Santa Clara |
---oooOooo---
Calendar Line 6
---oooOooo---
Calendar Line 7
|SUPERIOR COURT, STATE OF CALIFORNIA | |
|COUNTY OF SANTA CLARA | |
| | |
|DEPARTMENT 20 | |
| | |
|161 North First Street, San Jose, CA 95113 | |
|408.882.2320 · 408.882.2296 (fax) | |
|department20@ | |
| | |
| |(For Clerk’s Use Only) |
|CASE NO.: |19CV346678 |Premise Data Corporation v. Alex Pompe, et al. |
|DATE: 30 March 2023 |TIME: 9:00 am |LINE NUMBER: 07 |
|This matter will be heard by the Honorable Judge Socrates Peter Manoukian in Department 20 in the Old Courthouse, 2nd Floor, 161 North First Street, San Jose. |
|Any party opposing the tentative ruling must call Department 20 at 408.808.6856 and the opposing party no later than 4:00 PM on 29 March 2023. Please specify |
|the issue to be contested when calling the Court and Counsel. |
|---oooOooo--- |
|Order on Motion of Defendants |
|to Compel Plaintiff to Produce Documents. |
I. Statement of Facts.
Plaintiff filed this complaint on 19 April 2019.[67]
Plaintiff is a data and analytics company that provides real-time crowd sourced economic data from individual gig-based contributors throughout the world.
At the time that he was hired as a growth analyst, Alex Pompe executed an employment agreement and proprietary information and inventions agreement. The agreement also alleges that “until one year after the term of my employment, I will not encourage or solicit any employee or consultant to leave premise for any reason.
Mr. Pompe is alleged to has been engaged in a systematic campaign to destroy plaintiff, both from within and without. He came to work as a saboteur, using company time, equipment and communications to spread lies and misinformation to his coworkers in order to demoralize them and encourage them to leave.
The complaint alleges cause of action for:
1. Breach Of Written Contract;
2. Breach Of Written Contract;
3. Breach Of Duty of Loyalty;
4. Intentional Interference With Prospective Economic Advantage;
5. Negligent Interference With Prospective Economic Advantage;
6. Intentional Interference With Contractual Relations;
7. Intentionalinterference With Prospective Economic Advantage;
8. Negligent Interference With Prospective Economic Advantage;
9. Slander;
10. False Light; and
11. Unfair Competition under California Business & Professions Code, § 17200.
On 13 October 2020, counsel for Mr. Pompe Filed a “Notice of Related Case” in the Superior Court for the County of San Francisco, case number CGC-19-576127. It seems that the defendant in the San Francisco action, Mr. Weiss and the five individual defendants in this action entered into a broad conspiracy to inflict economic harm on plaintiff in the same manner as in this action.
On 21 April 2021, premise entered into a settlement agreement with Mr. Weiss and stipulated to a dismissal with prejudice.
By order filed on 21 January 2022, this Court granted the motion of plaintiff to file a first amended complaint. The proposed first amended complaint sought to add allegations that defendants misused or misappropriated confidential information. The amended complaint also added claims for breach of contract and misappropriation of trade secrets. It clarified the allegations that economic interference was intentional rather than negligent. Finally, the amended complaint alleged that defendant did not act alone but conspired with a group of now-former employees of plaintiff. This group inflicted economic harm on plaintiff by damaging employee morale, causing employees to leave, preventing plaintiff from hiring necessary personnel and so forth.
Other employees named as defendants are Moorea Brega, Kyle Dawkins, Ar Rang Jo, David Mendelson, as well as Mr. Pompe.
II. Motion of Kyle Dawkins To Compel Plaintiff.
In this motion, Mr. Dawkins seeks production of the written settlement agreement between Premise and Mr. Weiss in the San Francisco action. Mr. Weiss is expected to be a witness in this case. Mr. Dawkins wants to examine the settlement agreement to see if there is some kind of cooperation clause between Mr. Weiss and Premise in this section.
Mr. Dawkins also asserts that he is entitled to a set of monetary contribution by Mr. Weiss.
It seems that Mr. Pompe subpoenaed Mr. Weiss, who had moved to Idaho, for a copy of the settlement agreement. Premise moved to quash the Idaho subpoena on a number of grounds, including that the settlement agreement is confidential. In an order filed on 29 April 2022, the Idaho court instructed the parties to resolve this question in California as it was decided that this is a California issue with California litigants.
III. Analysis.
A. Relevance.
“Unless otherwise limited by order of the court in accordance with this title, any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence. Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action. Discovery may be obtained of the identity and location of persons having knowledge of any discoverable matter, as well as of the existence, description, nature, custody, condition, and location of any document, tangible thing, or land or other property.” (Code of Civil Procedure, § 2017.010.)
Discovery is allowed for any matters that are relevant to the subject matter of the action, not privileged, and reasonably calculated to lead to the discovery of admissible evidence. (See Code of Civil Procedure, § 2017.010; Calcor Space Facility, Inc. v. Superior Court (1997) 53 Cal.App.4th 216, 223.) Information is “relevant to the subject matter” if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement thereof. (See Gonzalez v. Superior Court (1995) 33 Cal.App.4th 1539, 1546.) These relevance standards are applied liberally with any doubt generally resolved in favor of discovery. (See Colonial Life & Acc. Ins. Co. v. Superior Court (1982) 31 Cal.3d 785, 790.)
Evidence Code, § 210’s definition of “relevant evidence” confuses admissibility and discoverability, and the more useful statute is Code of Civil Procedure, § 2017.010, which allows discovery of “matters” (not “evidence”) relevant to the subject matter of the pending action, including matters reasonably calculated to lead to the discovery of admissible evidence and the identity and location of witnesses and documents.
“Relevancy to the subject matter of the litigation is a much broader concept than relevancy to the precise issues presented by the pleadings. The subject matter of the action is the circumstances and facts out of which the cause of action arises; it is the property, contract, or other thing involved in the dispute; it is not the act or acts which constitute the cause of action, but describes physical facts in relation to which the suit is prosecuted. Information is "relevant to the subject matter if its discovery will tend to promote settlement or assist the party in preparing for trial.” (Norton v. Superior Court (1994) 24 Cal.App.4th 1750, 1760.)
“[I]n order to be discoverable, the information sought must meet a two-pronged test. It must be (1) relevant to the subject matter involved in the pending action and (2) either admissible in evidence or reasonably calculated to lead to the discovery of admissible evidence.” (Norton v. Superior Court (1994) 24 Cal. App. 4th 1750, 1755.)
“In the context of discovery, evidence is ‘relevant’ if it might reasonably assist a party in evaluating its case, preparing for trial, or facilitating a settlement. Admissibility is not the test, and it is sufficient if the information sought might reasonably lead to other admissible evidence.” (TBG Ins. Services Corp. v. Superior Court (2002) 96 Cal.App.4th 443, 448; See Gonzalez v. Superior Court (City of San Fernando) (1995) 33 Cal.App.4th 1539, 1546; Lipton v. Superior Court (Lawyers’ Mutual Insurance Co.) (1996) 48 Cal.App.4th 1599,1611; Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006, 1013.)
Where privacy rights are involved, a party must show direct relevance to a cause of action or defense that is essential for a determination of the truth of the matter in dispute. (See Britt v. Superior Court (San Diego Unified Port District) (1978) 20 Cal.3d 844, 855-856; Harris v. Court (Smets) (1992) 3 Cal.App.4th 661, 665.)
“Ultimately, it is for the court that oversees the trial in this matter to determine whether evidence pertaining to footprinting or any other area of inquiry is relevant and admissible. In resolving a discovery dispute, the court is in no position to make that determination. It can only attempt to foresee whether it is possible that information in a particular subject area could be relevant or admissible at the time of trial.” (Maldonado v. Superior Court (2002) 94 Cal.App.4th 1390, 1397.)
“Our discovery statute recognizes that “the identity and location of persons having [discoverable] knowledge” are proper subjects of civil discovery. (Code of Civil Procedure, § 2017.010; see Judicial Council of Cal. Form Interrogatories Nos. 12.1–12.7.)” (Pioneer Electronics (USA), Inc. v. Superior Court (2007) 40 Cal.4th 360, 374.)
In exercising its discretion in determining what is relevant for purposes of discovery, this Court follows the approach articulated in Norton v. Superior Court (1994) 24 Cal.App.4th 1750, 1761 and (Volkswagen of America, Inc. v. Superior Court (2006) 139 Cal.App.4th 1481, 1497:
“In accordance with the liberal policies underlying the discovery procedures, California courts have been broad-minded in determining whether discovery is reasonably calculated to lead to admissible evidence. As a practical matter, it is difficult to define at the discovery stage what evidence will be relevant at trial. Therefore, the party seeking discovery is entitled to substantial leeway. Furthermore, California's liberal approach to permissible discovery generally has led the courts to resolve any doubt in favor of permitting discovery. In doing so, the courts have taken the view if an error is made in ruling on a discovery motion, it is better that it be made in favor of granting discovery of the nondiscoverable rather than denying discovery of information vital to preparation or presentation of the party's case or to efficacious settlement of the dispute. The courts have also taken the view that wherever possible objections to discovery should be resolved by protective orders addressing the specific harm shown by the respondent as opposed to a more general attack on the ‘relevancy’ of information the proponent seeks to discover.”
B. Separate Statement.
Mr. Dawkins filed an appropriate Separate Statement which identifies just one issue.
C. Good Cause.
As Mr. Dawkins is the party who seeks to compel a further response to a request for production, he must show good cause. [(Code of Civil Procedure, § 2031.310(b)(1).] Once he has done that, the burden shifts to Premise to justify its objections. (Kirkland v. Superior Court (2002) 95 Cal app fourth 92, 98.)
D. Confidentiality.
Among premises concerns are on the question of privacy rights. The parties have stipulated to a protective order and Mr. Dawkins claims that Premise can produce the settlement agreement as a “confidential” document so that it cannot be disseminated.
Mr. Dawkins also points out that the Supreme Court of California has explicitly rejected the argument made by Premise here, to the effect that any balancing test for private information only applies to “obvious invasions of interests fundamental to personal autonomy” (Williams v. Superior Court (2017) 3 Cal.5th 531, 557) cand that the document here is more like a private financial document. Therefore, Mr. Dawkins argues, the “compelling interest” test does not apply.
However, even if the “compelling interest” elucidated in Williams, does apply, he has met it. Williams endorsed a general balancing approach that places the initial burden on the “party asserting a privacy right” to show (1) “a legally protected privacy interest,” (2) “an obj ectively reasonable expectation of privacy in the given circumstances,” and (3) “a threatened intrusion that is serious.” Id. at 552.
After that initial showing by the party asserting a privacy right, the party seeking the information may raise countervailing interests in seeking the materials, while the party seeking protection may identify feasible alternatives that would serve the same interests or protective measures that would diminish the loss of privacy. This Court can then balance these competing considerations.
E. Discussion.
Premise contents that the settlement agreement with Mr. Weiss would contain nothing relevant to the merits of any claims or defenses in this lawsuit. Premise also contends that this motion is not based on any facts to show that collusion or coercing perjury are even plausible suspicions.
Premise also contends that a potential selloff of funds paid is a matter of posttrial, post vertical briefing and is not relevant to any issue at trial, citing Knox v. County of Los Angeles (1980) 109 Cal.App.3d 825, 834-835.
This Court believes that the motion of Mr. Dawkins to compel Premise to provide the settlement agreement with Mr. Weiss should be GRANTED. Plaintiff is to produce the settlement agreement within 20 days of the filing and service of this order. The settlement agreement may or may not show evidence of collusion, a “Mary Carter’ type of agreement or any other useful purpose. The parties can agree to handle this document via the stipulated confidentiality agreement.
Nothing in this order is intended to suggest that the settlement agreement may be introduced as evidence in an upcoming trial. That decision is deferred to the assigned trial judge.
IV. Tentative Ruling and Hearing.
The Tentative Ruling was duly posted.
V. Case Management.
The Trial Setting Conference is currently set for 23 May 2023 at 11:00 AM in this Department.
VI. Conclusion and Order.
The motion of Mr. Dawkins to compel Premise to provide the settlement agreement with Mr. Weiss is GRANTED. Plaintiff is to produce the settlement agreement within 20 days of the filing and service of this order.
|____________________________________ |_________________________________________________________ |
|DATED: |HON. SOCRATES PETER MANOUKIAN |
| |Judge of the Superior Court |
| |County of Santa Clara |
---oooOooo---
Calendar Line 8
---oooOooo---
Calendar Line 9
---oooOooo---
Calendar Line 10
---oooOooo---
Calendar Line 11
---oooOooo---
Calendar Line 12
---oooOooo---
Calendar Line 13
---oooOooo---
Calendar Line 14
---oooOooo---
Calendar Line 15
---oooOooo---
Calendar Line 16
---oooOooo---
Calendar Line 17
---oooOooo---
Calendar Line 18
---oooOooo---
Calendar Line 19
---oooOooo---
Calendar Line 20
---oooOooo---
Calendar Line 21
---oooOooo---
Calendar Line 22
---oooOooo---
Calendar Line 23
---oooOooo---
Calendar Line 24
---oooOooo---
Calendar Line 25
---oooOooo---
Calendar Line 26
---oooOooo---
Calendar Line 27
---oooOooo---
Calendar Line 28
---oooOooo---
Calendar Line 29
---oooOooo---
Calendar Line 30
---oooOooo---
-----------------------
[1] This Department intends to comply with the time requirements of the Trial Court Delay Reduction Act (Government Code, §§ 68600–68620). The California Rules of Court state that the goal of each trial court should be to manage limited and unlimited civil cases from filing so that 100 percent are disposed of within 24 months. (Ca. St. Civil Rules of Court, Rule 3.714(b)(1)(C) and (b)(2)(C)
[2] “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Code Civ. Proc., §437c, subd. (f)(1).) “Notwithstanding subdivision (f), a party may move for summary adjudication of a legal issue or a claim for damages other than punitive damages that does not completely dispose of a cause of action, affirmative defense, or issue of duty pursuant to this subdivision.” (Code Civ. Proc., §437c, subd. (t).) However, a motion for partial summary adjudication pursuant to subdivision (t) must be pursuant to joint stipulation and order of the court. (See Code Civ. Proc., §437c, subd. (t)(1)-(2).) No such order exists here.
[3] See Separate Statement in Support of Defendants’ Motion for Summary Judgment or, in the Alternative, Summary Adjudication (“Defendants’ SS”), Issue No. 2, Fact No. 24.
[4] See Defendants’ SS, Issue No. 2, Fact No. 25.
[5] See Defendants’ SS, Issue No. 3, Fact No. 43.
[6] See Defendants’ SS, Issue No. 3, Fact No. 44.
[7] See ¶¶27 – 35 of the Declaration of Hong Jiang in Support of Plaintiffs’ Opposition to Defendants’ Motion for Summary Judgment, etc. (“Declaration Jiang”).
[8] See Defendants’ SS, Issue No. 4, Fact No. 52.
[9] See Defendants’ SS, Issue No. 4, Fact No. 53.
[10] See Defendants’ SS, Issue No. 4, Fact No. 54.
[11] See Defendants’ SS, Issue No. 4, Fact No. 55.
[12] See Defendants’ SS, Issue No. 5, Fact No. 56.
[13] See Defendants’ SS, Issue No. 5, Fact No. 57.
[14] See Defendants’ SS, Issue No. 5, Fact No. 58.
[15] See Defendants’ SS, Issue No. 5, Fact No. 59.
[16] See Defendants’ SS, Issue No. 5, Fact No. 60.
[17] See Plaintiffs’ Affirmative Statement of Material Facts in Support of her Opposition to Defendants’ Motion for Summary Judgment (“Plaintiffs’ Additional Material Facts”), Fact Nos. 116 – 118.
[18] See Defendants’ SS, Issue No. 6, Fact No. 67.
[19] See Defendants’ SS, Issue No. 6, Fact No. 68.
[20] See Defendants’ SS, Issue No. 6, Fact No. 69.
[21] See Defendants’ SS, Issue No. 6, Fact No. 70.
[22] See Defendants’ SS, Issue No. 6, Fact No. 71.
[23] See Defendants’ SS, Issue No. 6, Fact No. 72.
[24] See Defendants’ SS, Issue No. 6, Fact No. 73.
[25] See Defendants’ SS, Issue No. 6, Fact No. 74.
[26] See American Airlines, Inc. v. County of San Mateo (1996) 12 Cal.4th 1110, 1117–1118—“A defendant's motion for summary judgment necessarily includes a test of the sufficiency of the complaint. [Citation omitted.] When a motion for summary judgment is used to test whether the complaint states a cause of action, the court will apply the rule applicable to demurrers and accept the allegations of the complaint as true. [Citations omitted.]”
[27] “The ABC test presumptively considers all workers to be employee.” (Dynamex Operations W. v. Superior Court (2018) 4 Cal.5th 903, 955.)
[28] See Defendants’ SS, Issue No. 8, Fact Nos. 91 – 93.
[29] See Defendants’ SS, Issue No. 8, Fact No. 97.
[30] See Defendants’ SS, Issue No. 8, Fact No. 98.
[31] See Defendants’ SS, Issue No. 8, Fact No. 99.
[32] See Plaintiffs’ Additional Material Facts, Fact No. 143.
[33] See Exh. C (Deposition Jiang, page 103, line 25 – page 104, line 22) to the Declaration of Rachel Terp in Support of Plaintiffs’ Opposition, etc.
[34] See Plaintiffs’ Additional Material Facts, Fact No. 148.
[35] See Defendants’ SS, Issue No. 9, Fact No. 115.
[36] See Defendants’ SS, Issue No. 9, Fact No. 119.
[37] See Defendants’ SS, Issue No. 9, Fact No. 120.
[38] See Defendants’ SS, Issue No. 9, Fact No. 121.
[39] See Defendants’ SS, Issue No. 9, Fact No. 122.
[40] See Plaintiffs’ Additional Material Facts, Fact Nos. 155 – 163.
[41] “An employer shall indemnify his or her employee for all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties, or of his or her obedience to the directions of the employer, even though unlawful, unless the employee, at the time of obeying the directions, believed them to be unlawful.” (Lab. Code, §2802, subd. (a).)
[42] See Defendants’ SS, Issue No. 26, Fact No. 392.
[43] See Defendants’ SS, Issue No. 26, Fact No. 393.
[44] See Defendants’ SS, Issue No. 26, Fact No. 394.
[45] See Plaintiffs’ Additional Material Facts, Fact No. 436. The court notes Plaintiffs’ Additional Material Facts, Fact Nos. 416 – 418 and 426 – 428, lack citations to any evidence, but such citations are found in Plaintiffs’ Additional Material Facts, Issue No. 30.
[46] See Plaintiffs’ Additional Material Facts, Fact No. 437.
[47] See Plaintiffs’ Additional Material Facts, Fact No. 438.
[48] See Plaintiffs’ Additional Material Facts, Fact No. 439.
[49] See Plaintiffs’ Additional Material Facts, Fact No. 440.
[50] See Plaintiffs’ Additional Material Facts, Fact No. 441.
[51] See Plaintiffs’ Additional Material Facts, Fact No. 443.
[52] See Plaintiffs’ Additional Material Facts, Fact No. 444.
[53] See Plaintiffs’ Additional Material Facts, Fact No. 445.
[54] See Defendants’ SS, Issue Nos. 30 – 31, Fact Nos. 408 – 409.
[55] See Plaintiff’s Response to Defendants’ Separate Statement in Support of Motion for Summary Judgment, etc., Issue Nos. 30 – 31, Fact Nos. 408 – 409. See also Plaintiffs’ Additional Material Facts, Fact Nos. 436 – 441 and 443 – 445.
[56] This Department intends to comply with the time requirements of the Trial Court Delay Reduction Act (Government Code, §§ 68600–68620). The California Rules of Court state that the goal of each trial court should be to manage limited and unlimited civil cases from filing so that 100 percent are disposed of within 24 months. (Ca. St. Civil Rules of Court, Rule 3.714(b)(1)(C) and (b)(2)(C)
[57] “Property of a public entity” and “public property” mean real or personal property owned or controlled by the public entity, but do not include easements, encroachments and other property that are located on the property of the public entity but are not owned or controlled by the public entity. (Gov. Code, §830, subd. (c).)
[58] See City of San Jose’s Separate Statement in Support of Undisputed Material Facts in Support of Motion for Summary Judgment (“City UMF”), Issue No. 4, Fact No. 51.
[59] See City UMF, Issue No. 4, Fact No. 52.
[60] See City UMF, Issue No. 4, Fact No. 57.
[61] See City UMF, Issue No. 4, Fact No. 61.
[62] See City UMF, Issue No. 4, Fact No. 53.
[63] See City UMF, Issue No. 4, Fact No. 54.
[64] See Plaintiff’s Separate Statement of [Additional] Undisputed Facts, Fact No. 6 and 12.
[65] See Plaintiff’s Separate Statement of [Additional] Undisputed Facts, Fact No. 5.
[66] See Plaintiff’s Separate Statement of [Additional] Undisputed Facts, Fact No. 2.
[67] This Department intends to comply with the time requirements of the Trial Court Delay Reduction Act (Government Code, §§ 68600–68620). The California Rules of Court state that the goal of each trial court should be to manage limited and unlimited civil cases from filing so that 100 percent are disposed of within 24 months. (Ca. St. Civil Rules of Court, Rule 3.714(b)(1)(C) and (b)(2)(C).
................
................
In order to avoid copyright disputes, this page is only a partial summary.
To fulfill the demand for quickly locating and searching documents.
It is intelligent file search solution for home and business.
Related searches
- state of california municipal bonds
- state of california treasurer checks
- state of california check verification
- state of california education dept
- state of california gis data
- state of california real estate license
- state of california treasury department
- state of california unclaimed money
- state of california department of consumer affairs
- state of california department of education
- state of california department of aging
- state of california department of real estate