Superior Court, State of California



DATE: May 20, 2021 TIME: 9 A.M.

In light of the shelter-in-place order in this County due to COVID-19, all appearances MUST be by CourtCall, unless otherwise authorized by the Court. If any party wants a court reporter, the appropriate form must be submitted and the reporter must be reporting remotely (i.e., not in the courtroom).

There will be a public access line so that interested members of the public can listen in. That number is 877-336-1831, access #: 9156587

As ordered by the Presiding Judge of the Court, if the Court permits someone to appear in person for the hearing, that person must observe appropriate social distancing protocols and wear a face covering, unless otherwise authorized by the Court.

6. As a reminder, state and local court rules prohibit recording of court proceedings without a court order. This prohibition applies while in the courtroom and while listening in on the public access line.

PLEASE NOTE: EFFECTIVE 7-24-17, THE COURT WILL NO LONGER BE PROVIDING COURT REPORTERS. IF YOU WANT A COURT REPORTER AT YOUR HEARING, ALL PARTIES MUST JOINTLY AGREE AND A STIPULATION AND APPOINTMENT MUST BE COMPLETED, SEE FORM CIV-5063

The prevailing party shall prepare the order unless otherwise ordered. (See California Rule of Court 3.1312.)

TROUBLESHOOTING TENTATIVE RULINGS

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|LINE # |CASE # |CASE TITLE |RULING |

|LINE 1 |20CV364499 |Terry Cangiamilla Et Al Vs Xiaoqian Zhang|Click on Line 1 for Ruling |

|LINE 2 |20CV366526 |Vladimir Westbrook Vs Hanxu Angela Chen |Click on Line 2 for Ruling |

|LINE 3 |19CV344637 |Merlinda Kalalang Vs Kaiser Foundation |Click on Line 3 for Ruling |

| | |Hospitals | |

|LINE 4 |19CV357485 |Natasha Doubson Vs Elena Kozlova Et Al |Continued to July 29 at 9 a.m. |

|LINE 5 |19CV360479 |Richard Pimentel Vs General Motors Llc, A|Click on Line 5 for Ruling |

| | |Delaware Limited Liability Company | |

|LINE 6 |20CV370740 |Absolute Resolutions Investments, Llc Vs |Plaintiff’s Motion to Have Requests for |

| | |Ramtin Kenedi |Admissions Deemed Admitted is unopposed and |

| | | |GRANTED. Moving party is instructed to prepare |

| | | |the Order. |

|LINE 7 |17CV319811 |Adebukola Onibokun, Md Vs Emeka |Hearing on Claim of Exemption of emeka J. |

| | |Nchekwube, Md |Nchekwube, MD---Parties to Appear |

|LINE 8 |20CV374097 |Mohamad Saadieh Vs Xinge Ji Et Al |Motion to Set Aside and/or Vacate Order of |

| | | |Dismissal as to Defendant Xinge Ji is unopposed |

| | | |and GRANTED. Moving party is instructed to |

| | | |prepare the Order. |

|LINE 9 |20CV374510 |Sami And Sons Remodeling, Inc. Vs Bank Of|Defendants Josue and Priscilla Toral’s Motion to |

| | |America Corporation Et Al |Dismiss Plaintiff’s Complaint is DENIED. The |

| | | |Court file does not reflect a valid Proof of |

| | | |Service and the Motion does not comply with the |

| | | |requirements of the California Rules of Court. |

| | | |Finally, the fact that Plaintiff was involved in |

| | | |a related criminal case does not mean that the |

| | | |instant case should be dismissed and moving party|

| | | |has provided no legal authority to support that |

| | | |proposition. |

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Calendar Line 1

Defendant Xiaoquin Zhang (“Defendant”) brings this Motion to Quash Service of the Summons and Complaint challenging whether there was proper service by Plaintiffs’ Terry Cangiamilla and Henry Mallari (“Plaintiffs”).

In the moving papers, Defendant argues that although Plaintiff obtained an order to serve by publication, the actual service by publication was attempted in a location where Defendant had not resided in over a year and a half. According to the Declaration of Defendant, she acknowledges being involved in an accident with Plaintiff Terry Cangiamilla on April 2, 2018, but she stopped living in San Jose in June of 2019 and has lived out of the Country since April of 2020. Since Defendant served by publication in the San Jose Mercury News in December of 2020, she contends that service was defective because she was living out of the country and not subject to the Court’s jurisdiction.

In opposition, Plaintiffs argue that they obtained a valid order to serve by publication from Judge Barrett in Nov. of 2020. This order was obtained after several attempts (22) to serve the Defendant at her address of record to no success. Judge Barrett’s order to serve by publication allowed Plaintiffs to publish service in the San Jose Mercury News based upon Defendants last known address on Forge Way in Cupertino. Plaintiffs argue that the court order permitting service by publication cannot be set aside without establishing inadvertence, mistake or fraud, none of which exist in the current case. Plaintiffs further argue that the Defendant should not be rewarded for violating California law by failing to report her change of address to the DMV and that Defendants address of record well after service by publication remained in Cupertino.

After a full review of the positions set forth by the parties in their respective papers, the Motion to Quash Service of Summons and Complaint is DENIED. Simply put, Plaintiffs obtained a valid order to serve by publication in November of 2020 after properly meeting the requirements of CCP 415.50. Pursuant to the Court’s Order of November 20, 2020, Plaintiffs published in the San Jose Mercury News for four consecutive weeks in December of 2020. Service in the Mercury was based upon Defendant’s address of record being in Cupertino at the time. Plaintiffs did not know the Defendant was living out of the country and their attempts to ascertain Defendant’s whereabouts from her own insurance carrier were resisted. Defendants have offered no authority to suggest that service by publication was improper under the present set of circumstances, nor do they attempt in any way to set aside the Court’s order. Plaintiffs’ request for sanctions is DENIED.

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Case Name: Vladimir Westbrook v. Hanxu Angela Chen

Case No.: 20CV366526

This action is brought by Plaintiff Vladimir Westbrook (“Plaintiff”), a self-represented litigant, against Defendant Hanxu Angela Chen (“Defendant”), who is represented by counsel. “[W]hen a litigant is appearing in propria persona, he is entitled to the same, but no greater, consideration than other litigants and attorneys. Further, the in propria persona litigant is held to the same restrictive rules of procedure as an attorney.” (Burnete v. La Casa Dana Apartments (2007) 148 Cal.App.4th 1262, 1267, internal citations omitted.)

The original complaint in this action was filed on May 12, 2020. It stated claims for: 1) Breach of Contract, of a purported written settlement agreement attached to the Complaint as exhibit A (Complaint at ¶19); 2) Breach of Duty of Loyalty; 3) Breach of the Implied Covenant of Good Faith and Fair Dealing; 4) Bad Faith Denial of Contract (a tort that no longer exists), and; 5) Fraud.[1]

The first cause of action as alleged in the original complaint was based solely on a purported settlement agreement (which the Complaint did not establish actually existed) between Defendant and non-party Westbrook Realty, Inc. that Defendant allegedly breached solely by filing an arbitration complaint. (See original complaint at ¶¶19-21.) The second cause of action was based solely on allegations that Defendant breached her duty of loyalty to Westbrook Realty by demanding that Westbrook Realty pay credits to clients and engaged in self-dealing transactions using Westbrook Realty’s name. (See original complaint at ¶¶24-26.) The third cause of action as alleged in the original complaint was based solely on the allegation that Defendant “breached the implied covenant of good faith and fair dealing by choosing not to honor [the] Settlement Agreement and by failing to comply with it shortly after entering into it.” (See original complaint at ¶31.)

The original complaint admitted on its face that none of the causes of action alleged against Defendant originally belonged to Plaintiff Westbrook but alleged at ¶17 that Westbrook Realty “transferred” its claims to Plaintiff on May 11, 2020.

Defendant brought a demurrer to the original complaint which was heard by the Court (Hon. Barrett) on November 12, 2020 and sustained in part and overruled in part in a written order issued on January 11, 2021.[2] The demurrer to all causes of action on uncertainty grounds was overruled. The demurrer to the first three causes of action was sustained with leave to amend, while the demurrer to the fourth and fifth causes of action was sustained without leave to amend. In a separate order also issued on January 11, 2021 the Court denied Plaintiff’s motion for leave to amend in its entirety without prejudice.

The operative First Amended Complaint (“FAC”) filed January 14, 2021 states claims for: 1) Breach of Contract; 2) Breach of Fiduciary Duty, and; 3) Breach of the Implied Covenant of Good Faith and Fair Dealing. Currently before the Court is Defendant’s demurrer to all three causes of action in the FAC on various grounds, including that the FAC abandons the factual basis of the original complaint and alleges what are in effect three wholly new causes of action in violation of the Court’s January 11, 2021 Order.

Requests for Judicial Notice

“Judicial notice may not be taken of any matter unless authorized or required by law.” (Evidence Code §450.) A precondition to judicial notice in either its permissive or mandatory form is that the matter to be noticed be relevant to the material issue before the Court. (Silverado Modjeska Recreation and Park Dist. v. County of Orange (2011) 197 Cal.App.4th 282, 307, citing People v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 422, fn. 2.) Both sides here have submitted requests for judicial notice.

1. Defendant’s request

With the demurrer Defendant has requested (combined with a declaration rather than as a separate document was required by Rule of Court 3.1113(l)) that the Court take judicial notice of the original complaint and of “the entire court file” in this action (see declaration of Defense Counsel Harry Price at ¶3). This request is DENIED. The Court has already taken notice of the original complaint on its own authority and “the entire court file” is not relevant to the material issue before the Court.

2. Plaintiff’s request

With the opposition Plaintiff has submitted a request for judicial notice of (1) a copy of Defendant’s prior demurrer; (2) a copy of the Court’s January 11, 2021 order and (3 & 4) copies of two minute orders dated September 29, 2020 relating to discovery motions. The request for notice of the January 11, 2021 Order is DENIED as unnecessary as the Court has already taken notice of the order on its own motion. The request is DENIED as to the other three documents as they are not relevant to the material issue before the Court.

Demurrer to the FAC

The Court in ruling on a demurrer treats it “as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.” (Piccinini v. Cal. Emergency Management Agency (2014) 226 Cal.App.4th 685, 688, citing Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “A demurrer tests only the legal sufficiency of the pleading. It admits the truth of all material factual allegations in the complaint; the question of plaintiff’s ability to prove these allegations, or the possible difficulty in making such proof does not concern the reviewing court.” (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 213-214.) Where a demurrer is to an amended complaint, the Court “may consider the factual allegations of prior complaints, which a plaintiff may not discard or avoid by making contradictory averments, in a superseding, amended pleading.” (Berg & Berg Enterprises, LLC v. Boyle (2009) 178 Cal.App.4th 1020, 1034 (internal quotations omitted, emphasis added.) “While inconsistent theories of recovery are permitted, a pleader cannot blow hot and cold as to the facts positively stated.” (Manti v. Gunari (1970) 5 Cal.App.3d 442, 449, internal citation omitted.)

In ruling on a demurrer the Court may not consider extrinsic evidence, which includes declarations. Accordingly, apart from the required discussion of meet and confer efforts the Court has not considered the contents of the declaration of Plaintiff’s Counsel Harry I. Price.

Defendant demurrers to the FAC on various grounds, including (improperly) on grounds previously overruled, such as that each cause of action is “unintelligible.” Defendant specifically demurrers to each cause of action on the ground that they each contain “allegations that are barred by the prior Order sustaining Demurrer to the original Complaint, and are contrary to the law of the case, the exhibits to the original complaint, and of which judicial notice may be taken and said allegations treated as a nullity.” (See Demurrer to FAC at pp. 2:4-7, 3:4-7 and 4:4-7.)[3]

In the January 11, 2021 Order the Court (Hon Barrett) sustained the demurrer to the original complaint’s fourth and fifth causes of action without leave to amend. The demurrer to the original complaint’s first, second and third causes of action was sustained with leave to amend because the litigation privilege provided Defendant a complete defense to all three of these claims as alleged in the original complaint. (See Jan. 11 Order at pp. 9:1-10:15.) Leave to amend was granted on the basis that the prior demurrer was the first pleading challenge in the case.

In granting leave to amend the first three causes of action the Court took pains in the prior order to explain the following to Plaintiff: “When a demurrer is sustained with leave to amend, the leave must be construed as permission to the pleader to amend the causes of action to which the demurrer has been sustained, not add entirely new causes of action. (Patrick v. Alacer Corp. (2008) 167 Cal.App.4th 995, 1015.) To raise claims entirely unrelated to those originally alleged requires either a new lawsuit or a noticed motion for leave to amend. Absent prior leave of court an amended complaint raising entirely new and different causes of action may be subject to a motion to strike on the Court’s own motion. (See Harris v. Wachovia Mortg., FSB (2010) 185 Cal.App.4th 1018, 1023 [“Following an order sustaining a demurrer or a motion for judgment on the pleadings with leave to amend, the plaintiff may amend his or her complaint only as authorized by the court's order. The plaintiff may not amend the complaint to add a new cause of action without having obtained permission to do so, unless the new cause of action is within the scope of the order granting leave to amend.”]) Here, the Court grants Plaintiff leave to amend the first, second and third causes of action only and only as to Defendant Hanxu Angela Chen. Any other amendment, whether to add causes of action or new parties, requires approval of the Court upon noticed motion.” (Jan. 11, 2021 Order at pp. 10:24-11:13.)

The FAC abandons the factual allegations of the original complaint. The FAC makes no mention of a settlement agreement, the filing of an arbitration complaint, or self-dealing transactions. Instead of claims for breach of contract and breach of the duty of loyalty predicated solely on the existence of a settlement agreement and the filing of an arbitration complaint, the FAC for the first time alleges that Defendant breached an “Independent Contractor Agreement” and breached a (newly alleged) fiduciary duty by failing to return “proprietary information and files” after her termination. (See FAC at ¶¶26 and 36.) There is no mention of this in the original complaint. The third cause of action, while based on completely different facts from the claim alleged in the original complaint, remains duplicative of the first cause of action. (See FAC at ¶54.)

The FAC cannot reasonably be understood as an amendment of the first, second and third causes of action alleged in the original complaint, which were the only causes of action Plaintiff was given leave to amend in the Court’s prior order. It is instead clearly an attempt by Plaintiff to allege three wholly new claims in place of those previously alleged in violation of the Court’s January 11, 2021 Order. As the prior order noted, following an order sustaining a demurrer with leave to amend an amended complaint stating new and different causes of action may be struck by the Court on its own motion.

The Court hereby does STRIKE all three causes of action alleged in the FAC on its own motion as not filed in conformity with the January 11, 2021 Order of the Court. (See CCP §436.) Leave to amend is DENIED. If Plaintiff wishes to allege causes of action against Defendant wholly unrelated to those alleged in the original compliant (the only claims he was granted leave to amend) his options are either a new lawsuit or a properly noticed motion for leave to amend.

In addition to the fact that they bear no relation to the claims which Plaintiff was granted leave to amend, the Court also notes that the FAC’s new second cause of action for breach of fiduciary duty and the third cause of action for breach of the implied covenant of good faith and fair dealing both fail as a matter of law.

The FAC at ¶¶6-16 alleges that Plaintiff was a signatory to an independent contractor agreement with Westbrook Group, Inc. who “disassociated” and/or was terminated in January 2020. The FAC therefor admits on its face that Defendant did not owe a fiduciary duty to nonparty Westbrook, Inc. “Employment-type relationships are not fiduciary relationships.” (3 Witkin, Summary of Cal. Law (10th ed. 2005) Agency §3.) The fact that two or more parties are in a contractual relationship also does not, by itself, give rise to a fiduciary duty. “Every contract requires one party to repose an element of trust and confidence in the other to perform. For this reason, every contract contains an implied covenant of good faith and fair dealing, obligating the contracting parties to refrain from ‘ ‘doing anything which will have the effect of destroying or injuring the right of the other party to receive the fruits of the contract....’ ’ ‘Being of universal prevalence, [the implied covenant] cannot create a fiduciary relationship; it affords basis for redress for breach of contract and that is all.’” (Wolf v. Sup. Ct. (2003) 107 Cal App 4th 25, 31, internal citations omitted; see also Chin, Wiseman, Callahan & Lowe, Cal. Prac. Guide: Employment Litigation (The Rutter Group 2014) §§14:30-14.33 [“The existence and scope of the fiduciary duty is a question of law, as is the existence of any legally recognized fiduciary relationship. The fiduciary duty is owed by any officer who participates in management of the corporation with discretionary power to manage corporate affairs (as distinguished from a ‘nominal’ officer with no management authority). . . . Employees who are not officers or directors are generally not considered to be fiduciaries and thus owe no fiduciary duty to their employers: ‘there is no confidential or fiduciary relationship in this (employment contract) context.”])

Regarding the third cause of action for breach of the implied covenant of good faith and fair dealing that claim, as noted above, is based on the same newly alleged breach of an independent contractor agreement as the FAC’s first cause of action. (Compare FAC at ¶¶26-29 with FAC at ¶54.) As the California Supreme Court has stated “where breach of an actual [contract] term is alleged, a separate implied covenant claim, based on the same breach, is superfluous.” (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 327, brackets added.)

As the Court finds that all three causes of action alleged in the FAC are not amendments of the claims alleged in the original complaint (which were the only ones Plaintiff was granted leave to amend) but are instead new claims, and strikes them on that basis without leave to amend, it is not necessary for the Court to address Defendant’s other arguments, including that the newly added claims are barred by Business and Professions Code §16600.

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Case Name: Merlinda Kalalang v. Kaiser Foundation Hospitals

Case No.: 19CV344637

This is an action for, among other things, discrimination and constructive termination brought by Plaintiff Merlinda Kalalang (“Plaintiff”) against her former employer Defendant Kaiser Foundation Hospitals (“Defendant”). The original and still operative Complaint filed March 14, 2019 states claims for: 1) Disability Discrimination (FEHA violation); 2) Failure to Accommodate; 3) Failure to engage in good-faith interactive process; 4) Age Discrimination; 5) Retaliation in violation of FEHA, and; 6) Wrongful Constructive Termination in violation public policy.

The Complaint alleges that Plaintiff began working for Defendant in 2008. In 2009 she became an Assistant Nurse Manager. Plaintiff alleges that after she developed thyroid cancer and fibromyalgia she notified Defendant in October 2017 and requested that Defendant reduce her work load from 40 hours per week to 32 hours per week as a reasonable accommodation. Defendant granted the accommodation for only three months, until January 2018, and Plaintiff was then forced to take leave until she could return to work without any accommodations. In June of 2018 Defendant cut part of Plaintiff’s benefits and in August 2018 denied her pension. In October 2018 Defendant cut all her benefits, including insurance. (Complaint at ¶¶1-4.) Plaintiff further alleges that she contacted Defendant multiple times requesting to return to work with a reasonable accommodation but was only offered demotions which would have required a 100 mile commute. As a result of the failure to offer reasonable accommodations Plaintiff “was forced to resign on or about March 14, 2019.” (Complaint at ¶¶15-17.)

Earlier this month the Court heard and denied Defendant’s motion for summary judgment/adjudication, primarily on the basis that a triable issue of material fact clearly remained as to whether working 40 hours per week in five 8-hour shifts was an essential function of the Assistant Nurse Manager position despite not being included in the written description of the position.

Currently before the Court is Plaintiff’s motion for summary adjudication of three issues of duty: (1) “Defendant owed a duty to reasonably accommodate Plaintiff based on her disability and violated this duty by failing to provide and/or removing her reasonable accommodation and forcing her on involuntary leave.” (2) Defendant owed a duty to engage in a timely good faith interactive process with Plaintiff to determine if a reasonable accommodation was available, and violated this duty through their removal of Plaintiff’s accommodation, failure to grant Plaintiff alternative positions, failure to offer Plaintiff any alternative job positions for over a year, failing to provide vocational training for other positions and placement of Plaintiff on involuntary medical leave.” (3) “Defendant has no legitimate undue hardship defense to Plaintiff’s claims because Defendant was able to accommodate Plaintiff’s 32 hour shift without an undue hardship AND failed to fill her position which remained vacant for 40 hours per week for over 1 year and three months without any hardship to Defendant.” (See March 4 Notice of Motion at p. 2:6-21, emphasis added.)

As an initial matter the declarations of Laurie Chua and Dennis Coleman submitted by Plaintiff in support of the motion have not been considered by the Court. Pursuant to Code of Civil Procedure (“CCP”) §437c(a)(2): “Notice of the motion and supporting papers shall be served on all other parties to the action at least 75 days before the time appointed for hearing. If the notice is served by mail, the required 75-day period of notice shall be increased by 5 days if the place of address is within the State of California, 10 days if the place of address is outside the State of California but within the United States, and 20 days if the place of address is outside the United States. If the notice is served by facsimile transmission, express mail, or another method of delivery providing for overnight delivery, the required 75-day period of notice shall be increased by two court days.” The notice period is calculated by counting backward from the hearing date, excluding the day of the hearing. (CCP §12c(a).) “Any additional days added to the specified number of days because of a particular method of service shall be computed by counting backwards from the day determined in accordance with subdivision (a).” (CCP §12c(b).) Pursuant to CCP §1010.6(a)(4)(B), to the extent that a more specific statute does not apply two court days are added for service by electronic service.

The Chua and Coleman declarations were not filed or served (via overnight and electronic mail) until March 9, 2021, which is only 72 days before May 20, 2021. The Court has no power to shorten the 75 day mandatory notice period mandated by CCP §437c nor may it cure the defect by continuing the hearing. (See Robinson v. Woods (2008) 168 Cal App 4th 1258, 1267-1268.) The Court has no discretion to shorten the notice period because it relates to due process for the non-moving party and the statute gives it no power to do so. (McMahon v. Superior Court (2003) 106 Cal.App.4th 112, 115-116 [CCP §473c(a) contains three minimum time requirements; trial courts are given discretion to reduce only two of these]; see also UAS Management, Inc. v. Mater Misericordiae Hospital (2008) 169 Cal.App.4th 357, 368.) If the notice is insufficient, the notice must begin anew and must be for the full 75 days. (Robinson, supra, at pp. 1267-1268.)

A motion for summary adjudication shall be granted only if it completely disposes of an entire cause of action, an affirmative defense, a claim for damages, or an “issue of duty.” (See CCP §437c(f)(1); McClasky v. California State Auto. Ass’n (2010) 189 Cal.App.4th 947, 975 [“If a cause of action is not shown to be barred in its entirety, no order for summary judgment—or adjudication—can be entered.”]) Summary adjudication of general “issues” or of facts is not permitted. (See Raghavan v. The Boeing Company (2005) 133 Cal.App.4th 1120, 1136.) CCP §437c(t) makes clear that the only means by which a party may seek summary adjudication of only part of a cause of action or of an issue other than an “issue of duty” is by submitting a joint stipulation of the parties to the court, specifying the issue(s) to be adjudicated which the Court must then approve before the motion can be filed. Orders granting or denying summary adjudication are not appealable. (See Transport Ins. Co. v. TIG Ins. Co. (2012) 202 Cal.App.4th 984, 1010-1011 [order granting or denying summary adjudication is reviewable only by writ of mandamus].)

The moving party’s declarations and evidence will be strictly construed in determining whether they negate or disprove an essential element of a plaintiff’s claim “in order to resolve any evidentiary doubts or ambiguities in plaintiff’s (or opposing party’s) favor.” (Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56, 64, parentheses added.) While the same standards of admissibility govern both, the opposition declarations are liberally construed while the moving party’s evidence is strictly scrutinized. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768.) The evidence must be liberally construed in support of the opposing party, resolving any doubts in favor of that party. (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037.)

The moving party may generally not rely on additional evidence filed with its Reply papers. (See Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537-38 [“The general rule of motion practice . . . is that new evidence is not permitted with reply papers. This principle is most prominent in the context of summary judgment motions . . .”]; see also Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 252; San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A. (2002) 102 Cal.App.4th 308, 316.)

Where a plaintiff (or cross-complainant) seeks summary judgment, the burden is to produce admissible evidence on each element of a cause of action entitling him or her to judgment. (CCP §437c(p)(1); Hunter v. Pacific Mechanical Corp. (1995) 37 Cal.App.4th 1282, 1287, disapproved on other grounds in Aguilar; S.B.C.C., Inc. v. St. Paul Fire & Marine, Ins. Co. (2010) 186 Cal.App.4th 383, 388.) This means that plaintiffs who bear the burden of proof at trial by a preponderance of evidence must produce evidence that would require a reasonable finder of fact to find any underlying material fact more likely than not. “Otherwise, he would not be entitled to judgment as a matter of law.” (Aguilar, supra at 851; LLP Mortgage v. Bizar (2005) 126 Cal.App.4th 773, 776 [burden is on plaintiff to persuade court there is no triable issue of material fact]). At that point, the burden shifts to defendant (or cross-defendant) to show that a triable issue of one or more material facts exists. (See CCP §437c(p)(1).)

Plaintiff’s motion for summary adjudication is DENIED as follows.

“Issue 1”essentially seeks summary adjudication of the Complaint’s second cause of action for failure to accommodate. “The FEHA imposes on the employer the obligation to make reasonable accommodation for a known mental or physical disability of an employee.” (Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1003.) “The elements of a failure to accommodate claim are (1) the plaintiff has a disability under the FEHA, (2) the plaintiff is qualified to perform the essential functions of the position, and (3) the employer failed to reasonably accommodate the plaintiff’s disability.” (Id. at 1009-1010, emphasis added.) Employers who are aware of an employee’s disability have an affirmative duty to make reasonable accommodations for such disability, even if the employee has not requested any accommodation. (2 Cal. Regs. § 11068, subd. (a); see Prilliman v. United Air Lines, Inc. (1997) 53 Cal.App.4th 935, 949-950.)

“Issue 2” essentially seeks adjudication of the Complaint’s third cause of action for failure to engage in the interactive process in good faith. “The [FEHA] makes it unlawful for an employer to fail to engage in a timely, good faith, interactive process with the employee or applicant to determine effective reasonable accommodations, if any, in response to a request for a reasonable accommodation by an employee or applicant with a known physical or mental disability or known medical condition. [Government Code] § 12940, subdivision (n) imposes separate duties on the employer to engage in the interactive process and make reasonable accommodations.” (Scotch, supra, 173 Cal.App.4th at p. 1003 [internal quotations and citations omitted].) An employer’s failure to engage in this process is a separate FEHA violation from a failure to accommodate and involves different proof of facts. (Wysinger v. Automobile Club of Southern California (2007) 157 Cal.App.4th 413, 424-425.) “The interactive process required by the FEHA is an informal process with the employee or the employee’s representative, to attempt to identify reasonable accommodation which will enable the employee to perform the job effectively. Ritualized discussions are not necessarily required.” (Wilson v. City of Orange (2009) 169 Cal.App.4th 1185, 1195 [internal citations and quotations omitted].)

Issues 1 and 2 crucially depend upon Plaintiff’s undisputed material facts (“UMFs”) 20-22. UMF 20 states (paraphrasing) that Plaintiff could perform the essential functions of her position with a permanent accommodation of a “32 hour work week instead of 40 hours,” (citing only to Plaintiff’s deposition testimony, submitted as exhibit 6 to the declaration of Plaintiff’s Counsel Jeremy Levy). UMF 21 states that the essential functions of Plaintiff’s assistant nurse manager position were determined by her manager, Mitchell Sprugasci (citing only the deposition testimony of Estelita Heisch, submitted as exhibit 4 to the Levy declaration). UMF 22 states that Sprugasci testified that “he did not consider working a 40 hour work week [] an essential function of her job” (citing only to three lines of Sprugasci’s deposition testimony, p. 43:20-23, submitted as exhibit 3 to the Levy declaration.)

Defendant disputes UMFs 20 and 22. In its response to UMF 20 Defendant states “Plaintiff’s job duties need to be completed on a daily basis, as her job required day to day management of her unit,” citing ¶8 of Mr. Sprugasci’s opposing declaration. It further states “Additionally, Plaintiff testified that she was not performing her job duties on the fifth day of work when she was not there, and that on this day, she was unable to perform her essential job functions. (Tr. 69:23-70:1.) Thus, the evidence cited by Plaintiff does not support that she was able to perform her essential job duties with an accommodation of a 32 hour work week, as Plaintiff admits she did not perform any of her job duties on the 5th day of the week in which she was absent. Further, working 40 hours per week, in a five day per week, 8 hours per day schedule was an essential function of Plaintiff’s position. Plaintiff could only work 32 hours over the course of 4 days, meaning she could not fulfill the essential functions of her position.”

Defendant’s response to UMF 21 is that it is “Undisputed but incomplete,” because it claims Sprugasci worked with human resources personnel to “confirm Plaintiff’s essential job functions.”

In disputing UMF 22 Defendant asserts (correctly in the Court’s view) that the three lines from Sprugasci’s deposition that Plaintiff relies upon as the sole support for UMF 22 do not accurately present his overall testimony. Citing this testimony (at pp. 21:5-22:1, submitted as exhibit B to the declaration of Defense Counsel Di Addy Tang) it notes that when directly asked if a 40 hour workweek was an essential function of Plaintiff’s assistant nurse manager positon, Sprugasci answered “yes.” When asked why, he testified (in pertinent part): “Because the positions were Monday through Friday positions and 40 hours a week. Every shift has an assistant nurse manager for 8 hours, 40 hours a week, Monday through Friday . . . Because all of the duties that I just listed are essential functions and necessary to get completed on a daily basis. On a shift-to-shift basis. So every shift does all of those. . . .” Defendant further asserts that the three lines of testimony Plaintiff relies on were offered in the context of a letter from Heisch to Plaintiff. When asked by Defense Counsel what he meant by the brief statement Plaintiff relies upon, Sprugasci stated: “Well, I meant that—I mean it’s actually an essential function that you work 40 hours; but when you list those sorts of things, you’re just listing duties of what they do on a daily basis. What you do every single day for the most part.” When accused of changing his testimony by Plaintiff Counsel Levy Mr. Sprugasci responded: “I always believed [40 hours] was part of the job. It’s just not what’s usually listed under essential job functions is what I meant. In any one of our essential job functions that I’ve ever seen, the number of hours worked is never listed under there. That’s what I meant.” (See Exhibit B to Tang declaration, Sprugasci’s deposition testimony at pp. 43:3-47:23.)

As to “Issue 1,” while there is no dispute that the FEHA imposes a “duty” on employer to provide employees with disabilities a reasonable accommodation, there clearly remains a dispute as to whether Defendant breached this duty on these facts. As was the case with the prior MSJ, so long as there is a dispute as to whether it was an “essential” function of Plaintiff’s position that she work 40 hours per week and/or be present five days a week, there is a triable issue of material fact as to whether Defendant breached its duty to provide Plaintiff a reasonable accommodation by refusing to allow her to return to her original nurse manager position (as she stated she wished to do) with a permanent accommodation of a 32 hour week. Even if it is assumed for purposes of argument that Plaintiff met her initial burden on this issue when the burden shifts Defendant has shown through admissible evidence (the more complete deposition testimony of Mr. Sprugasci attached to the declaration of Defense Counsel Di Addy Tang and Mr. Sprugasci’s declaration, which does not contradict his more complete testimony) that triable issues remain on the key material facts.

The Court cannot resolve issues of credibility in ruling on a motion for summary judgment or adjudication and the Court must liberally construe the evidence submitted in opposition to such a motion. “Typically in summary judgment litigation, equally conflicting evidence requires a trial to resolve the dispute.” (Kids’ Universe v. In2Labs (2002) 95 Cal.App.4th 870, 881.)

Regarding “Issue 2,” so long as a triable issue remains as to whether the essential functions of Plaintiff’s original job position included working 40 hours a week and/or working five days a week in 8-hour shifts, a triable issue of material fact also remains as to whether Defendant acted in good faith during the interactive process. “Because the evidence is conflicting and the issue of the parties’ efforts and good faith is factual, the claim is properly left for the jury’s consideration.” (Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34, 62, fn. 23.) Again, even if it is assumed that Plaintiff has met her initial burden, Defendant has shown that triable issues remain on the key facts.

Plaintiff’s “Issue 3” seeks summary adjudication of Defendant’s affirmative defense of undue hardship. If an employer can demonstrate that accommodating an employee’s disability would cause an undue hardship on its operations, the accommodation is not required. (Gov. Code, § 12940, subd. (m).) “Undue hardship” is defined as an action requiring “significant difficulty or expense” when considered in light of several factors including: the nature and cost of the accommodation needed; the overall financial resources of the facilities involved in providing the reasonable accommodation and the effect on those resources or the accommodation’s impact on the operations of the facility; the overall resources of the covered entity and size of the business relative to the number of employees; and the type of operations involved, including their function. (Gov. Code, § 12926, subd. (u); See also CACI 2545.)

Issue 3 depends upon Plaintiff’s UMFs 45 and 46. UMF 45 states that Plaintiff’s “manager” and Defendant’s PMK regarding undue hardship (Mr. Sprugasci) “testified that the pediatrics department was able to function” while Plaintiff was given a temporary accommodation of a 32 hour work week, citing only three lines of deposition testimony (ex. 3 to the Levy declaration at p. 36:22-25). UMF 46 states that Sprugasci testified that the department “was able to function” after Plaintiff had been placed on medical leave and while her position was vacant, citing four lines of deposition testimony (ex. 3 to the Levy declaration at p. 38:14-18). This is the only evidence Plaintiff cites to demonstrate that no undue hardship existed as a matter of law.

While Defendant has the burden to establish the defense at trial as the party moving for summary adjudication Plaintiff has the initial burden here. When a plaintiff moves for summary adjudication on an affirmative defense, the court shall grant the motion “only if it completely disposes” of the defense.” (See’s Candy Shops, Inc. v. Superior Court (2012) 210 Cal.App.4th 889, 899-900; CCP §437c(f)(1).) In order to meet the initial burden the plaintiff must negate an essential element of the defense or establish that the defendant does not possess and cannot reasonably obtain evidence needed to support the defense. (See’s Candy Shops, Inc. v. Superior Court, supra, 210 Cal.App.4th 889 at p. 900.)

By asserting that no hardship existed simply because: (1) the pediatric and PICU units were still able to function while she worked a reduced schedule and; (2) The units continued to function for a significant period once she was on leave and while her position remained unfilled (UMFs 45 and 46), Plaintiff has not met her initial burden to show that there is no merit to the defense. The fact that the units were able to continue to function for a prolonged period simply does not negate an essential element of the defense or establish that Defendant does not have, or cannot obtain, evidence to establish undue hardship. Even if it were assumed for purposes of argument that Plaintiff had met her initial burden, Defendant has submitted admissible evidence (the declarations of Mitchell Sprugasci and Mark Cursi) sufficient to raise a triable issue as to whether the impact of Plaintiff’s absence on the Pediatrics department and the other employees covering Plaintiff’s position as well as their own might constitute an undue hardship.

The Court notes that each side has submitted objections to the other’s evidence. Rule of Court 3.1354 requires a party making evidentiary objections in the context of a motion for summary judgment or adjudication to file two documents, evidentiary objections and a separate proposed order on the objections, and both must be in one of the two approved formats set forth in the Rule. Rule of Court 3.1354(a) states “Unless otherwise excused by the Court on a showing of good cause, all written objections to evidence in support of or in opposition to a motion for summary judgment must be served and filed at the same time as the objecting party’s opposition or reply papers are served and filed.” (Court’s emphasis.) The Court is not required to rule on objections that do not fully comply with Rue of Court 3.1354. (See Vineyard Spring Estates v. Super. Ct. (2004) 120 Cal.App.4th 633, 642 [trial courts only have duty to rule on evidentiary objections presented in proper format]; Hodjat v. State Farm Mutual Automobile Ins. Co. (2012) 211 Cal.App.4th 1 [trial court not required to rule on objections that do not comply with Rule of Court 3.1354 and not required to give objecting party a second chance at filing properly formatted papers].)

Defendant’s objections to evidence will not be ruled upon as they do not comply with Rule of Court 3.1354. While objections were filed with the opposition papers on May 6, the required proposed order was filed (late) on May 10, 2021. The objections were not timely or complete without the required order. “Objections to evidence that are not ruled on for purposes of the motion shall be preserved for appellate review.” (CCP §437c(q).)

Plaintiff’s objections timely submitted with the Reply include the required proposed order. Plaintiff’s first two objections, to the declaration of Mitchell Sprugasci, are OVERRULED. Plaintiff’s second two objections, which are not objections to evidence but rather objections to two of Defendant’s purported additional UMFs (which are not themselves evidence), are not proper objections and are OVERRULED.

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Plaintiff Richard Pimentel (“Plaintiff”) brings this Motion to Compel the Deposition of Defendant General Motors, LLC’s Person Most Knowledgeable (“PMK”) and for Production of Documents. In his moving papers, Plaintiff argues that he timely noticed the deposition of Defendant’s PMK, but Defendant failed to produce a witness. According to the papers, Plaintiff then attempted to meet and confer with Defendant to secure a mutually agreeable date, but Defendant failed to provide a date. Plaintiff claims that he was left with no choice but to file the instant motion compelling the deposition of Defendant’s PMK. Finally, Plaintiff claims that the Notice of Deposition was accompanied by a Request for Production of Documents seeking sixteen requests for production of documents. The moving papers make no attempt to describe the requests in any detail, but simply argue that they relate to the attempted warranty repairs and service of the subject vehicle, including Defendant’s policies and procedures for performing those repairs. Plaintiff relies upon the Malek Declaration and the Separate Statement to argue that good cause exists to order production of the documents in the Deposition Notice.

The motion is opposed by Defendant. In its opposition papers, Defendant points out that it did agree to produce a PMK witness for all but four of the twelve categories in the deposition notice. Furthermore, Defendant contends that it has already produced responsive documents to many of the categories and that many of the requests submitted by Plaintiff in the Deposition Notice are irrelevant, overbroad or otherwise objectionable. Defendant argues that Plaintiff failed to engage in a meaningful meet and confer as to Defendant’s objections and simply filed the instant motion without any discussion about the propriety of the objections. The opposition papers also argue that Plaintiff failed to articulate facts in violation of CCP 2031.310(b)(1), so their objections to the requests should be sustained.

In reply, Plaintiff argues that Defendant admits that it received Plaintiff’s meet and confer letter and still has not provided any dates for the deposition and that Defendant has no valid excuse for failing to produce a witness with the requested documents. The reply further argues that Defendant’s objections are not grounds to refuse to produce its person most knowledgeable for deposition and that Plaintiff’s meet and confer efforts were sufficient because Defendant has not offered any alternative dates to conduct the deposition.

After a full review of the positions set forth by the respective parties in their papers, the Motion to Compel the Deposition of Defendant’s PMK is DENIED WITHOUT PREJUDICE. First, the Court is troubled by Plaintiff’s failure to point out in its moving papers that Defendant did agree to produce a witness as to eight of the twelve categories enumerated in the Deposition Notice. The inference from Plaintiff’s moving papers is that Defendant has refused to produce a witness for the deposition which necessitated this motion. That is not the case and the Court finds the moving papers to be misleading. While Defendant may not have provided a date, they clearly indicated that they would produce a witness as to many of the categories listed. Second, the Court finds that there was no meaningful meet and confer upon receipt of Defendant’s Feb. 12th letter. To the contrary, Plaintiff simply filed the instant motion without any substantive discussion of the objections to certain requests/categories set forth in the Deposition Notice. Running to court and filing a motion without an attempt to meet and confer is not only contrary to the meet and confer requirements, but it overloads a court that is dealing with limited resources. In short, it burdens the court unnecessarily. Whether the parties reach agreement on the scope of the deposition and the request for production remains to be seen, but there was no meaningful dialog that preceded this motion.

Clearly, the Plaintiff is entitled to a PMK deposition and that is not disputed. The parties are ordered to have a meaningful meet and confer regarding the disputed issues in the deposition notice in an attempt to either resolve or narrow the dispute. The Court has an informal discovery conference program where counsel can request an informal discovery conference with a judge without the necessity of formal motion practice. The Court strongly encourages the parties to use that resource if they cannot resolve the dispute issues. If both parties agree to an IDC, they can reach out to department19@ to set up a time to discuss the discovery issues.

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[1] The Court on its own motion takes judicial notice of the original Complaint pursuant to Evidence Code §452(d) (court records).

[2] The Court also takes judicial notice of the January 11, 2021 order on its own motion as a court record.

[3] The reference to the “law of the case” is mistaken. As there has been no appeal that doctrine has no application here. “Under the law of the case doctrine, when an appellate court ‘states in its opinion a principle or rule of law necessary to the decision, that principle or rule becomes the law of the case and must be adhered to throughout [the case’s] subsequent progress, both in the lower court and upon subsequent appeal. . . .’ [Citation.] Absent an applicable exception, the doctrine ‘requir[es] both trial and appellate courts to follow the rules laid down upon a former appeal whether such rules are right or wrong.’ [Citation.] As its name suggests, the doctrine applies only to an appellate court’s decision on a question of law; it does not apply to questions of fact. [Citation.] …an appellate court’s determination ‘that the evidence is insufficient to justify a finding or a judgment is necessarily a decision upon a question of law.’ [Citation.] Such a determination ‘establishe[s] as the law of the case that all the evidence adduced at the previous trial was insufficient as a matter of law to establish’ the finding or judgment. [Citations.]” (People v. Barragan (2004) 32 Cal.4th 236, 246, emphasis added.)

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