Superior Court, State of California



DATE: October 27, 2022 TIME: 9:00 A.M.

PREVAILING PARTY SHALL PREPARE THE ORDER

UNLESS OTHERWISE STATED BELOW

(SEE RULE OF COURT 3.1312 - PROPOSED ORDER MUST BE E-FILED BY COUNSEL AND SUBMITTED PER 3.1312(C))

THE COURT DOES NOT PROVIDE OFFICIAL COURT REPORTERS FOR CIVIL LAW AND MOTION HEARINGS. SEE COURT WEBSITE FOR POLICY AND FORMS FOR COURT REPORTERS AT HEARING

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TROUBLESHOOTING TENTATIVE RULINGS

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

|LINE 1 |21CV376818 |Floyd D’Aguiar v. City of Campbell, et al. |CONTINUED to 11/3/22 at 9 am, as Judge Takaichi should hear this |

| | | |reconsideration motion. |

|LINE 2 |21CV388454 |Marcia Hill, et al. v. David Velasquez, et |No opposition was filed to this demurrer. But, no opening brief was |

| | |al. |filed with the notice of motion for demurrer. And no proof of service|

| | | |has been filed with the Court showing that Plaintiff has notice of the|

| | | |actual hearing date. |

| | | | |

| | | |Therefore, the Court CONTINUES this matter to 1/12/23 at 9 am, and |

| | | |orders Defendants to serve and file a corresponding notice of hearing.|

|LINE 3 |22CV393933 |Brittney Carstarphen, et al. v. Rutherford |See tentative ruling. The Court will prepare the final order. |

| | |Management Co., et al. | |

|LINE 4 |19CV350910 |Larry Lyons v. Costco Wholesale Corp., et al.|See tentative ruling. The Court will prepare the final order. |

|LINE 5 |20CV366854 |WAVERLY RESIDENTIAL, LLC v. S.B.C.C., INC., |There is no proof in the Court file that the moving party (Fleetwood |

| | |et al. |Windows and Doors) provided notice of today’s hearing date to SBCC. |

| | | |Therefore, the Court cannot grant Fleetwood’s motion to compel, even |

| | | |though it is unopposed. |

| | | | |

| | | |Instead, the Court continues the motion to 1/19/23 at 9 am, and orders|

| | | |Fleetwood to serve and file a corresponding notice of hearing. |

|LINE 6 |20CV373069 |Battaglia v. Koechlin |In light of the agreements made by the parties’ 10/25/22 IDC with |

| | | |Judge Overton, the Court CONTINUES the hearing to 1/26/23 at 9 am. |

|LINE 7 |21CV384267 |GAYLE ANNE GRESHAM |See tentative ruling. The Court will prepare the final order. |

| | |v. BANK OF STOCKTON, et al. | |

|LINE 8 |21CV384267 |GAYLE ANNE GRESHAM |See tentative ruling. The Court will prepare the final order. |

| | |v. BANK OF STOCKTON, et al. | |

|LINE 9 |18CV336725 |Nancy L. Roberts v. Elizabeth J. Larson |After reviewing the Court of Appeal order, the Court agrees with |

| | | |Defendants that Plaintiff’s partial success on her anti-SLAPP motion |

| | | |had no practical benefit, as Defendants retained the same key defenses|

| | | |they had before. Thus, the Court does not find her to be a prevailing|

| | | |party and does not award her attorney fees. (See Mann v. Quality Old |

| | | |Time Service, Inc. (2006) 139 Cal.App.4th 329, 340 (Mann).) |

| | | | |

| | | |Moreover, the evidence Plaintiff in support of her fee request makes |

| | | |no attempt to allocate the work on the successful claim versus the |

| | | |unsuccessful claims. And the spreadsheet attached to her motion is |

| | | |not authenticated or admissible evidence of fees. It therefore is |

| | | |extremely difficult, if not impossible, for the Court to “first |

| | | |determine the lodestar amount for the successful claims, and, if the |

| | | |work on the successful and unsuccessful causes of action was |

| | | |overlapping, the court should then consider the defendant’s relative |

| | | |success on the motion in achieving his or her objective, and reduce |

| | | |the amount if appropriate.” (Mann, supra, 139 Cal.App.4th at p. 344.)|

| | | | |

| | | |The Court therefore DENIES Plaintiff’s motion for attorney fees. |

|LINE 10 |19CV356647 |LEAL & TREJO, APC v. ALUM ROCK UNION |See tentative ruling. The Court will prepare the final order. Also, |

| | |ELEMENTARY |in light of the Court’s ruling, the Court need not rule on Plaintiff’s|

| | |SCHOOL DISTRICT, et al. |evidentiary objections. |

|LINE 11 |20CV368091 |VINCENT BEARDSLEY, et al. v. JOAN ANTHONY, et|The Court GRANTS Plaintiff’s motion. The Court asks Plaintiff’s |

| | |al. |counsel to prepare an appropriate order and, after checking with |

| | | |Defendants’ counsel as to form, e-file the order with the Court for |

| | | |signature. |

|LINE 12 |20CV369825 |Alysha S. Alawi vs. St. Timothy's Lutheran |Good cause appearing, the Court GRANTS the minor’s compromise petition|

| | |Church of San Jose, et al. |and will sign the order for the petition and the order to deposit the |

| | | |money into a blocked account. The Court waives any need for the minor|

| | | |to appear at the hearing. |

| | | | |

| | | |Finally, to ensure that the money is deposited, the Court sets a |

| | | |status review at 10 am on 1/26/23. If there is proof in the file of |

| | | |such deposit, this 1/26/23 hearing will go off calendar. |

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Case Name: Brittney Carstarphen, et al. v. Rutherford Management Co., et al.

Case No.: 22-CV-393933

Factual and Procedural Background

This is a landlord-tenant action.

Defendants Rutherford Management Company and Rutherford Collection L.P. (collectively, “Defendants”) own, operate, maintain and/or manage residential property located at 1515 Lincoln Avenue in San Rafael, California (the “Property”). (Complaint at ¶¶ 1, 12.) Plaintiffs Irma Dixon and Brittney Carstarphen (collectively, “Plaintiffs”) are tenants at the Property. (Id. at ¶ 5.)

According to the complaint, the following conditions existed on the Property:

a) Insect infestations and lack of insect control;

b) Bites from insects;

c) Water leaks and intrusion;

d) Water damage;

e) Toxic mold causing mold spores to float in the air and be inhaled by Plaintiffs, thereby causing serious medical and health problems;

f) Holes in ceiling and/or interior walls;

g) Inoperable water heater;

h) Lack of air conditioning;

i) Damaged or deteriorated flooring;

j) Inoperable vent in bathroom; and

k) Building code and health and safety code violations.

(Complaint at ¶ 14.)

Plaintiffs allege these materially defective conditions affected the habitability of the Property. (Complaint at ¶ 21.) Defendants allegedly breached duties to Plaintiffs by failing to provide habitable housing, failing to repair the dangerous and harmful conditions at the Property, failing to protect Plaintiffs’ property from physical damage, and failing to protect Plaintiffs’ quiet enjoyment of the Property. (Id. at ¶ 31.) As a consequence, Plaintiffs have suffered serious emotional and physical injury, special and property damages, and economic loss. (Id. at ¶¶ 15, 26, 32, 33, 34, 39, 40, 46.)

On January 31, 2022, Plaintiffs filed a complaint against Defendants setting forth causes of action for: (1) breach of the implied warranty of habitability; (2) negligence; (3) nuisance; and (4) breach of the covenant of quiet enjoyment.

On June 7, 2022, Defendants filed an answer alleging a general denial and affirmative defenses.

Currently before the court is Defendants’ motion to strike portions of the complaint. Plaintiffs filed a written opposition. Defendants filed reply papers.

A further case management conference is set for January 17, 2023.

Motion to Strike Portions of the Complaint

Defendants move to strike the punitive damages allegations because they are not supported by facts establishing malice, oppression, or fraud.

Legal Standard

A court may strike out any irrelevant, false, or improper matter asserted in a pleading. (Code Civ. Proc., § 436, subd. (a).) A court may also strike out all or any part of a pleading not filed in conformity with the laws of the State of California. (Code Civ. Proc., § 436, subd. (b).) The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice. (Code Civ. Proc., § 437, subd. (a).)

Irrelevant matter includes “immaterial allegations.” (Code Civ. Proc., § 431.10, subd. (c).) “An immaterial allegation in a pleading is any of the following: (1) An allegation that is not essential to the statement of a claim or defense; (2) An allegation that is neither pertinent to nor supported by an otherwise sufficient claim or defense; (3) A demand for judgment requesting relief not supported by the allegations of the complaint or cross-complaint.” (Code Civ. Proc., § 431.10, subd. (b).)

“As with demurrers, the grounds for a motion to strike must appear on the face of the pleading under attack, or from matter which the court may judicially notice.” (Weil & Brown, et al., California Practice Guide: Civil Procedure Before Trial (The Rutter Group 2022) ¶ 7:168, p. 7(l)-76 citing Code Civ. Proc., § 437.) “Thus, for example, defendant cannot base a motion to strike the complaint on affidavits or declarations containing extrinsic evidence showing that the allegations are ‘false’ or ‘sham.’ Such challenges lie only if these defects appear on the face of the complaint, or from matters judicially noticeable.” (Id. at ¶ 7:169, p. 7(l)-76.)

“In passing on the correctness of a ruling on a motion to strike, judges read allegations of a pleading subject to the motion to strike as a whole, all parts in their context, and assume their truth.” (Clauson v. Super. Ct. (1998) 67 Cal.App.4th 1253, 1255.) “In ruling on a motion to strike, courts do not read allegations in isolation.” (Ibid.)

Punitive Damages Allegations

“In order to state a prima facie claim for punitive damages, a complaint must set forth the elements as stated in the general punitive damage statute, Civil Code section 3294. These statutory elements include allegations that the defendant has been guilty of oppression, fraud, or malice. ‘Malice’ is defined in the statute as conduct ‘intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.’ ‘Oppression’ means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights. ‘Fraud’ is ‘an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.’ ” (Turman v. Turning Point of Central California, Inc. (2010) 191 Cal.App.4th 53, 63, internal citations omitted.)

“In determining whether a complaint states facts sufficient to sustain punitive damages, the challenged allegations must be read in context with the other facts alleged in the complaint. Further, even though certain language pleads ultimate facts or conclusions of law, such language when read in context with the facts alleged as to defendants’ conduct may adequately plead the evil motive requisite to recovery of punitive damages.” (Monge v. Super. Ct. (1986) 176 Cal.App.3d 503, 510.)

“Where nonintentional torts involve conduct performed without intent to harm, punitive damages may be assessed ‘when the conduct constitutes conscious disregard of the rights or safety of others.’ [Citations.] ‘ “[A] conscious disregard of the safety of others may [thus] constitute malice within the meaning of section 3294 of the Civil Code. In order to justify an award of punitive damages on this basis, the plaintiff must establish that the defendant was aware of the probable dangerous consequences of his conduct, and that he willfully and deliberately failed to avoid those consequences.’ ” [Citations.] Consequently, to establish malice, ‘it is not sufficient to show only that the defendant’s conduct was negligent, grossly negligent or even reckless.’ [Citation.]” (Bell v. Sharp Cabrillo Hosp. (1989) 212 Cal.App.3d 1034, 1044.)

Furthermore, “[a]n employer shall not be liable for damages pursuant to subdivision (a), based upon acts of an employee of the employer, unless the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice. With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation.” (Civ. Code, § 3294, subd. (b).)

Here, Defendants move to strike the following allegations with respect to punitive damages:

“The aforementioned acts of Defendants were done maliciously, oppressively, fraudulently, recklessly and with the intent to cause injury or to deprive Plaintiffs of their legal rights or with a willful and conscious disregard of the rights of Plaintiffs. Defendants’ conduct was despicable and subjected Plaintiffs to cruel and unjust hardship.” (Complaint at ¶ 16.)

“Punitive and exemplary damages.” (Prayer for Relief at No. 2.)

Defendants persuasively argue there are no specific facts demonstrating malice, oppression or fraud to support an award for punitive damages. Nor do Plaintiffs allege that Defendants were aware of the probable dangerous consequences of their conduct and willfully and deliberately failed to avoid those consequences. Moreover, Plaintiffs do not set forth any factual allegations against any employee, agent, corporate/executive officer for which punitive damages can be awarded against a corporate entity. Rather, there is only the allegation in paragraph 16 that Defendants’ actions were done maliciously, oppressively, fraudulently, recklessly and with intent to cause of injury. But, this allegation is a conclusion without supporting facts which is not enough to properly plead a claim for punitive damages. (See Smith v. Super. Ct. (1992) 10 Cal.App.4th 1033, 1041-1042 [conclusory allegations without sufficient facts are not enough to support a request for punitive damages].)

In opposition, Plaintiffs contend there are detailed allegations regarding defective conditions on the Property, that notice was given to Defendants within a reasonable time following discovery, that Defendants failed to correct the conditions, and Plaintiffs suffered damages, including emotional distress. (See OPP at pp. 4:22-5:10; Complaint at ¶¶ 14-16, 24, 26, 30, 33, 34, 36, 40, 44, and 46.) But, reading the complaint as a whole, Defendants’ alleged failure to act (i.e. remedy the defective conditions) in this instance does not establish malice, oppression or fraud to support punitive damages. (See Nolin v. National Convenience Stores, Inc. (1979) 95 Cal.App.3d 279, 285-286 [“Conduct classified only as unintentional carelessness, while it may constitute negligence or even gross negligence, will not support an award of punitive damages”]; see also Dawes v. Super. Ct. (1980) 111 Cal.App.3d 82, 87 [“Inasmuch as Civil Code section 3294 requires as a prerequisite to the recovery of punitive damages that the defendant ‘has been guilty of oppression, fraud, or malice,’ the cases have uniformly recognized that proof of negligence, even gross negligence, or recklessness is insufficient to warrant an award of punitive damages.”].) The court therefore finds insufficient facts to support punitive damages but Plaintiffs will be afforded with leave to amend. (See Price v. Dames & Moore (2001) 92 Cal.App.4th 355, 360 [regarding demurrers and motions to strike, leave to amend is routinely and liberally granted to give the plaintiff a chance to cure the defect in question].)

Accordingly, the motion to strike punitive damages allegations in the complaint is GRANTED WITH 20 DAYS’ LEAVE TO AMEND.

Disposition

The motion to strike punitive damages allegations is GRANTED WITH 20 DAYS’ LEAVE TO AMEND.

The court will prepare the Order.

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Case Name: Larry Lyons v. Costco Wholesale Corporation, et al.

Case No.: 19-CV-350910

Factual and Procedural Background

This is a sexual harassment and retaliation case. The following allegations come from Plaintiff’s complaint:

Plaintiff Larry Lyons (“Plaintiff”) worked for defendant Costco Wholesale Corporation (“Costco”) as a stocker from 2000 to the present at a Costco facility in Santa Clara. (Complaint at ¶ 14.) During his employment, Plaintiff was subjected to severe and pervasive unwanted sexual harassment by defendant Frank Lopez (“Lopez”), his supervisor. (Id. at ¶ 15.)

For example, in August 2018, defendant Lopez slapped and grabbed Plaintiff’s buttocks repeatedly as Plaintiff stocked sausages for Costco. (Complaint at ¶ 16.) At that moment, Lopez stated to Plaintiff that he loved it when Plaintiff touched his “sausage” and that it felt so good. (Ibid.) The very next day, Plaintiff filed a written complaint regarding Lopez’s harassment with the store manager. (Id. at ¶ 17.) In response, the store manager told Plaintiff that Lopez had engaged in similar conduct before and that was why he was transferred to Plaintiff’s location. (Id. at ¶ 18.) Lopez thereafter admitted to Costco management that he engaged in conduct that was the substance of Plaintiff’s complaint. (Id. at ¶ 19.) Costco however declined to take disciplinary action against Lopez or any corrective action in response to Plaintiff’s complaint. (Id. at ¶¶ 20, 22.)

Following Plaintiff’s 2018 complaint, defendant Lopez called Plaintiff “big daddy” and patted him on his lower back. (Complaint at ¶ 23.) Costco managers also subjected Plaintiff to ongoing sexual harassment in the form of jokes and comments regarding his “meat” which they used as sexual reference for his penis. (Id. at ¶ 25.)

In August 2018, Plaintiff met with Costco management to complain again about the sexual harassment and retaliation he was experiencing and requested that defendant Lopez be transferred. (Complaint at ¶ 26.) Costco responded by refusing to take action and telling Plaintiff there were no grounds for Lopez to be transferred. (Ibid.) As a consequence of the sexual harassment by management and Costco’s refusal to act, Plaintiff dreaded going to work and experienced extreme anxiety, depression, and panic attacks. (Id. at ¶ 27.)

On March 18, 2019, Plaintiff, through his attorney of record, obtained a Right to Sue Letter against defendants Costco and Lopez (collectively, “Defendants”) for sexual harassment, discrimination and retaliation. (Id. at ¶ 28.)

On July 9, 2019, Plaintiff filed the operative complaint against Defendants setting forth causes of action for: (1) sexual harassment; (2) failure to take steps necessary to prevent harassment; (3) retaliation for opposing sexual harassment; and (4) intentional infliction of emotional distress.

On August 19, 2019, defendant Costco filed an answer alleging a general denial and affirmative defenses.

On September 16, 2019, defendant Lopez filed a separate answer setting forth also a general denial and affirmative defenses.[1]

On May 24, 2022, Defendants filed the motion presently before the court, a motion for summary judgment, or in the alternative, summary adjudication to the complaint. Plaintiff filed a written opposition. Defendants filed reply papers.

Trial is set for March 20, 2023.

Motion for Summary Judgment, or in the Alternative, Summary Adjudication

Defendants move for an order granting summary judgment as there are no triable issues of material fact in this action. In the alternative, Defendants request an order of summary adjudication as to each cause of action and Plaintiff’s claim for punitive damages.

Plaintiff’s Evidentiary Objections

In opposition, Plaintiff asserts various objections in his separate statement submitted in opposition to the motion. (See Plaintiff’s Opposing Separate Statement at Fact Nos. 8, 14-16, 21-23, 25, 29-30.)

Written evidentiary objections must be made in a separate document and must not be re-stated or re-argued in the separate statement. (Cal. Rules of Court, rule 3.1354(b).) Objections must identify the specific item of evidence that is objectionable. (Ibid.) Here, Plaintiff improperly sets forth objections in his opposing separate statement that he did not include in a separate document containing evidentiary objections. Therefore, the evidentiary objections do not comply with California Rules of Court, rule 3.1354(b). 

In addition, evidentiary objections must be accompanied by a proposed order that complies with the requirements outlined in California Rules of Court, rule 3.1354(c). The rule requires an objecting party to file two separate documents, objections and a separate proposed order, both in one of the approved formats set forth in the rule. (See Cal. Rules of Court, rule 3.1354(b) and (c).) Here, Plaintiff fails to comply with the rule as he did not submit a separate document setting forth the evidentiary objections or a proposed order as provided in the rules of court.  

Accordingly, the court declines to rule on the objections based on the above-described defects. (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].)

Defendants’ Evidentiary Objection

In their reply separate statement, Defendants object to Plaintiff’s additional material fact number 41. This objection however suffers from the same defects stated above in connection with Plaintiff’s evidentiary objections. The court therefore declines to consider the objection.

Legal Standard

Any party may move for summary judgment. (Code Civ. Proc., § 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 Civ. Proc., § 437c, subd. (c); Aguilar, supra, 25 Cal.4th 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, 25 Cal.4th 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 Evid. Code, § 110.) “A prima facie showing is one that is sufficient to support the position of the party in question.” (Aguilar, supra, 25 Cal.4th at p. 851.)

If the moving party makes the necessary initial showing, the burden of production shifts to the opposing party to make a prima facie showing of the existence of a triable issue of material fact. (Code Civ. Proc., § 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, 25 Cal.4th at p. 850, fn. omitted.) If the party 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.)

First Cause of Action: Sexual Harassment

The California Fair Employment and Housing Act (“FEHA”) (Gov. Code, § 12900 et seq.) provides that it is unlawful for an employer, “because of…sex, …to harass an employee…or a person providing services pursuant to a contract.” (Gov. Code, § 12940, subd. (j)(1).) FEHA’s “prohibition against sexual harassment includes protection from a broad range of conduct, ranging from expressly or impliedly conditioning employment benefits on submission or tolerance to unwelcome sexual advances, to the creation of a work environment that is hostile or abusive on the basis of sex.” (Miller v. Department of Corrections (2005) 36 Cal.4th 446, 461 (Miller).)

To prevail under FEHA, “an employee claiming harassment based upon a hostile work environment must demonstrate that the conduct complained of was severe enough or sufficiently pervasive to alter the conditions of employment and create a work environment that qualifies as hostile or abusive to employees because of their sex. [Citations.]” (Miller, supra, 36 Cal.4th at p. 462, italics added.)

“Harassment that is ‘occasional, isolated, sporadic, or trivial’ generally fails to meet this standard. [Citation.] There is both a subjective and objective component to this standard. [Citation.] ‘[A] plaintiff who subjectively perceives the workplace as hostile or abusive will not prevail under the FEHA, if a reasonable person in the plaintiff’s position, considering all the circumstances, would not share the same perception.’ [Citation.]” (McCoy v. Pacific Maritime Assn. (2013) 216 Cal.App.4th 283, 293 (McCoy).)

“A sexual harassment claim must be evaluated in light of the totality of the circumstances. This may include ‘ “the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.” [Citation.]’ [Citation.] There is no requirement that a plaintiff alleging such conduct be the direct target of the harassment; however, ‘sexual conduct that involves or is aimed at persons other than the plaintiff is considered less offensive and severe than conduct that is directed at the plaintiff.’ [Citation.] In such cases, it is necessary ‘to establish that the sexually harassing conduct permeated the plaintiff’s direct work environment.’ [Citation.]” (McCoy, supra, 216 Cal.App.4th at p. 293.)

A sexual harassment in violation of Government Code section 12940 may be stated by a member of the same sex as the harasser. (Singleton v. United States Gypsum Co. (2006) 140 Cal.App.4th 1547, 1557; see Mogilefsky v. Super. Ct. (1993) 20 Cal.App.4th 1409 [leading case in California on “same-gender” sexual harassment].)

The allegations in support of sexual harassment are summarized in paragraph 32 of the complaint as follows:

“Defendants COSTCO and MR. LOPEZ subjected Plaintiff to sexual advances, conduct, and/or comments that were unwelcome and sufficiently severe and pervasive enough to alter the conditions of employment, whereby creating a hostile work environment. In taking these actions, the aforementioned Defendants were motivated in whole or in part by Plaintiff’s male sex. COSTCO, acting by its agents and supervisors, knew or should have known of the aforementioned conduct and failed to take immediate and appropriate corrective action.”

The parties here do not dispute Defendants’ alleged conduct in support of the claim for sexual harassment. The undisputed evidence includes actions in the form of coarse joking, defendant Lopez cussing at Plaintiff and other co-workers, Lopez slapping Plaintiff’s butt and patting his lower back, and Lopez making sexually suggestive comments regarding sausages and a mannequin/dummy. (See Defendants’ Separate Statement of Undisputed Facts [“SSUF”] at Nos. 1-7, 9.)

The court does not find such conduct to be sufficiently severe and pervasive to support a cause of action for sexual harassment. For example, defendant Lopez and Plaintiff worked together for approximately three months, a relatively short period of time. (See Defendants’ SSUF at No. 9.) As to Lopez cussing at Plaintiff and other employees, there is no evidence that such behavior was on the basis of Plaintiff’s sex. With respect to the remaining actions involving the butt slap, pat on the lower back, sausages, and mannequin/dummy, these appear to be occasional, isolated, or sporadic incidents as opposed to severe and pervasive activities necessary for hostile or abusive work environment. While perhaps crude and offensive, such conduct was not so severe and pervasive so as to alter the conditions of Plaintiff’s employment or create a work environment “permeated” with sexual harassment. (See Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 291 [affirming grant of summary judgment on hostile work environment sexual harassment claim where conduct alleged insufficiently severe]; Herberg v. California Institute of the Arts (2002) 101 Cal.App.4th 142, 145 [same]; see also Candelore v. Clark County Sanitation Dist. (9th Cir. 1992) 975 F.2d 588, 590 [isolated incidents of sexual horseplay over number of years held insufficient].)

In opposition, Plaintiff contends triable issues of fact exist in connection with the sexual harassment claim. (See OPP at pp. 18-19.) In support, Plaintiff urges the court to consider “me too” evidence in rejecting Defendants’ argument on summary judgment. (Id. at pp. 22-25.)

“California courts have held so-called ‘me-too’ evidence, that is, evidence of gender bias against employees other than the plaintiff, may be admissible evidence in discrimination and harassment cases. [Citations.] The relevance of evidence concerning conduct toward nonparty employees is inherently ‘ “fact based and depends on many factors, including how closely related the evidence is to the plaintiff’s circumstances and theory of the case.” ’ [Citation.] ‘[S]imilar considerations are involved in balancing the probative value of the evidence against its prejudicial effect.’ [Citation.] Me-too evidence is therefore not subject to any per se rule of exclusion, and may be admissible to prove a defendant’s motive or intent even where the conduct occurred outside the plaintiff’s presence and at times other than when the plaintiff was employed. [Citations.]” (Meeks v. AutoZone, Inc. (2018) 24 Cal.App.5th 855, 871.)

Plaintiff here submits evidence involving an incident where defendant Lopez slapped the butt of Alex Quinones (“Quinones”), an employee in Merchandising, without his permission. (See Plaintiff’s Additional Facts at Nos. 6-10.) While this incident certainly resembles conduct experienced by Plaintiff in this lawsuit, by itself, it is not enough to establish a severe and pervasive hostile work environment. And, even though Plaintiff himself was a victim of childhood sexual abuse (see Plaintiff’s Additional Fact at No. 1), there is no evidence demonstrating that defendant Lopez acted against Plaintiff in response to his history of abuse. Therefore, the court finds no viable claim for sexual harassment.

Second Cause of Action: Failure to Take Steps Necessary to Prevent Harassment

A claim for “Failure to Prevent Harassment, Discrimination, and Retaliation” necessarily depends upon establishing that harassment, discrimination, and/retaliation occurred in the first place. Under FEHA, an employer has an obligation to “take all reasonable steps necessary to prevent discrimination and harassment from occurring.” (See Gov. Code, §12940, subd. (k).) A prerequisite to a finding of liability for the failure to take all reasonable steps, however, is a finding that the plaintiff actually suffered unlawful discrimination, harassment, or retaliation. (See Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th 280, 282-283; see also Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1021 (Scotch).) Since Plaintiff’s claim for sexual harassment fails, there can be no cause of action for the failure to prevent it as a matter of law.

Third Cause of Action: Retaliation for Opposing Sexual Harassment

It is unlawful for an employer “to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under [the FEHA] or because the person has filed a complaint, testified, or assisted in any proceeding under [the FEHA].” (Gov. Code, § 12940, subd. (h).)

“[T]he elements of such a claim are substantially the same as those for disparate treatment except that instead of having to show that the action was motivated by animus toward the plaintiff as a member of the protected class, the plaintiff must show that the motive was retaliatory animus.” (McCaskey v. California State Automobile Assn. (2010) 189 Cal.App.4th 947, 987-988.)

The retaliation allegations are summarized in paragraphs 47 and 48 of the complaint as follows:

¶ 47: “In violation of Government Code § 12940(h), DEFENDANTS retaliated against PLAINTIFF by subjecting him to further harassment and adverse treatment that was reasonably likely to impair a reasonable employee’s job performance and prospects for advancement and promotion. DEFENDANTS took the actions shortly after PLAINTIFF engaged in protected activity by complaining about sexual harassment by MR. LOPEZ, as set forth herein.”

¶ 48: “DEFENDANTS knew, or should have known, of MR. LOPEZ’ conduct and failed to properly investigate, reprimand, terminate, or take appropriate disciplinary action against MR. LOPEZ for his egregious conduct, thereby ratifying his actions.”

As to the third cause of action, Defendants argue Plaintiff cannot establish a prima facie case for retaliation or that any employment actions taken against him were pretextual.

Burden-Shifting Analysis

In reviewing motions for summary judgment/adjudication in employment discrimination cases, California courts employ the burden-shifting formula first articulated by the U. S. Supreme Court in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 (McDonnell Douglas). (See King v. United Parcel Service (2007) 152 Cal.App.4th 426, 433, fn.2; see also Scotch, supra, 173 Cal.App.4th at p. 1004.)  Under McDonnell Douglas, on a motion for summary judgment brought against such a cause of action the plaintiff bears the burden of establishing a prima facie case of discrimination (or retaliation), and the burden then shifts to the employer to offer a legitimate, nondiscriminatory reason for the adverse employment action. (Mixon v. Fair Employment and Housing Commission (1992) 192 Cal.App.3d 1306, 1318.)      

 

“ ‘A defendant employer’s motion for summary judgment slightly modifies the order of these [McDonnell Douglas] showings.’ ”  (Scotch, supra, 173 Cal.App.4th at p. 1005, quoting Kelly v. , Inc. (2005) 135 Cal. App. 4th 1088, 1097 (Kelly).) To prevail on its motion, the defendant employer is “required to show either that (1) plaintiff could not establish one of the [prima facie] elements of the FEHA claim, or (2) there was a legitimate, nondiscriminatory reason for its decision to terminate plaintiff’s employment.”  (Avila v. Continental Airlines, Inc. (2008) 165 Cal.App.4th 1237, 1247, citing Kelly, supra, 135 Cal. App. 4th at pp. 1097-1098.)      

Prima Facie Case

“[T]o establish a prima facie case of retaliation under the FEHA, a 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 existed between the protected activity and the employer’s action.” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042 (Yanowitz).)

Defendants contend that Plaintiff cannot establish any adverse employment action to state a prima facie case for retaliation.

An adverse employment action “consists of discrimination regarding compensation, terms, conditions, or privileges of employment and disparate treatment in employment, specifically requiring people to work in a discriminatorily hostile or abusive environment.” (Malais v. Los Angeles City Fire Dept. (2007) 150 Cal.App.4th 350, 357 (Malais); accord, Yanowitz, supra, 36 Cal.4th at p. 1052.) By contrast, “ ‘[m]inor or relatively trivial adverse actions or conduct by employers o[r] fellow employees that, from an objective perspective, are reasonably likely to do no more than anger or upset an employee cannot properly be viewed as materially affecting the terms, conditions, or privileges of employment and are not actionable.’ ” (Ibid., quoting Yanowitz, supra, 36 Cal.4th at pp. 1054-1055.)

“Not every change in the conditions of employment, however, constitutes an adverse employment action.” (Malais, supra, 150 Cal.App.4th at p. 357.) For example, a change that is merely contrary to the employee’s interests or not to the employee’s liking is insufficient. (Ibid.) This is because workplaces are rarely idyllic retreats, and the mere fact that an employee is displeased by an employer’s act or omission does not elevate that act or omission to the level of a materially adverse employment action. (Ibid.) A plaintiff claiming he was subjected to an adverse employment action based on discrimination (or retaliation) must demonstrate the employer’s actions had a detrimental and substantial effect on the plaintiff’s employment. (Id. at p. 358.)

In support, Defendants submit evidence showing Plaintiff was retaliated against in the following ways:

1) Plaintiff was not promoted to a Deli Supervisor position despite twice applying;

2) Plaintiff’s request to work a 3:00 a.m. to 11:30 a.m. shift was not granted and he remained working the 4:00 a.m. to 12:30 p.m. shift, while Quinonez (who had also complained about Lopez) and another stocker were allowed to work the earlier shifts;

3) Lopez, Boggiano, and Cabanlit were not going out of their way to talk to him;

4) Cabanlit indicated that Plaintiff was not a good stocker and not even in his top 10 or top 20 stockers and would redirect his work and tell him to perform other tasks but Plaintiff was never written up for any performance issues;

5) Gilke, the new Merchandise Manager, would ask Plaintiff to help on certain menial tasks while other employees in Plaintiff’s department were not told to help and instead allowed to stand around not working and Gilke would not send employees to assist Plaintiff during a period of time when the warehouse was understaffed; and

6) Plaintiff was not trained in the Deli Department in 2019 but he did receive cross-training on the forklift in 2019 because Boggiano told him it was an important step towards promotion.

(See Defendants’ SSUF at Nos. 13-20; Memo of P’s & A’s at pp. 6, 12-13.)

Except for Plaintiff being denied twice for promotion to Deli Supervisor, Defendants assert none of the remaining conduct constitutes an adverse employment action to support a claim for retaliation. Plaintiff does not dispute this contention in opposition. Plaintiff however may be able to establish a valid claim for retaliation unless Defendants can demonstrate legitimate, non-retaliatory reasons for denying Plaintiff’s promotion to Deli Supervisor.

Legitimate Non-Retaliatory Reasons

“Legitimate” reasons in this context are reasons that are factually unrelated to prohibited bias, and therefore, if true, would preclude a finding of discrimination (or retaliation). (Guz v. Bechtel Nat’l, Inc., (2000) 24 Cal.4th 317, 358.) This burden, like the prima facie case, has been found not to be onerous. (See Board of Trustees of Keene State College v. Sweeney (1978) 439 US 24, 25, fn. 1 [employer’s burden met “if he simply explains what he has done or produce(s) evidence of legitimate nondiscriminatory reasons”].) “Examples of legitimate reasons are a failure to meet performance standards or a loss of confidence in an employee.” (Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 861 (Serri).)    

 

Here, Defendants submit evidence showing Plaintiff was not selected as a Deli Supervisor because he was not well prepared for his interview and developed problems with his attendance. (See Defendants’ SSUF at Nos. 21-24; Terry Decl. at ¶¶ 1-5.) Thus, Defendants meet their burden in demonstrating Plaintiff did not receive the Deli Supervisor position for non-retaliatory reasons. The burden now shifts to Plaintiff to provide evidence of pretext.  

Evidence of Pretext

To avoid summary judgment, the employee must “offer substantial evidence that the employer’s stated nondiscriminatory (or non-retaliatory) reason for the adverse action was untrue or pretextual, or evidence the employer acted with a discriminatory animus, or a combination of the two, such that a reasonable trier of fact could conclude the employer engaged in intentional discrimination.”  (Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1004-1005.) The employee cannot simply show that the employer’s decision was wrong or mistaken, since the factual dispute at issue is whether discriminatory animus motivated the employer, not whether the employer is wise, shrewd, prudent or competent.  (Id. at p. 1005.)  Rather, the employee must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence and hence infer that the employer did not act for the asserted non-discriminatory reasons.  (Ibid., quotations and citations omitted.)  

“It is not sufficient for an employee to make a bare prima facie showing or to simply deny the credibility of the employer’s witnesses or to speculate as to discriminatory motive. [Citations.] Rather it is incumbent upon the employee to produce ‘substantial responsive evidence’ demonstrating the existence of a material triable controversy as to pretext or discriminatory animus on the part of the employer. [Citation.]” (Serri, supra, 226 Cal.App.4th at p. 862.)

Here, Plaintiff’s argument with respect to retaliation does not address arguments or supporting evidence to establish pretext. (See OPP at pp. 19-21.) Also, there is no evidence of pretext contained in Plaintiff’s disputed facts in the separate statement. (See Plaintiff’s Disputed Facts at Nos. 21-24.) Nor does Plaintiff direct the court to any evidence of pretext within his additional material facts submitted in support of the opposition. As a consequence, the court finds no viable claim for retaliation.

Fourth Cause of Action: Intentional Infliction of Emotional Distress

A cause of action for intentional infliction of emotional distress exists when there is (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct.  (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050.)  

 

“An essential element of a cause of action for intentional infliction of emotional distress is ‘extreme and outrageous conduct by the defendant.’  [Citation.]”  (Yurick v. Super. Ct. (1989) 209 Cal.App.3d 1116, 1123.)  “[T]he standard for judging outrageous conduct does not provide a ‘bright line’ rigidly separating that which is actionable from that which is not.  Indeed, its generality hazards a case-by-case appraisal of conduct filtered through the prism of the appraiser’s values, sensitivity threshold, and standards of civility.”  (Id. at p. 1128.)  “[I]t is generally held that there can be no recovery for mere profanity, obscenity, or abuse, without circumstances of aggravation, or for insults, indignities, or threats which are considered to amount to nothing more than mere annoyances.  The plaintiff cannot recover merely because of hurt feelings.”  (Ibid.)  Thus, “[c]onduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.”  (Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 1001.)    

Here, conduct alleged in the fourth cause of action arises from Plaintiff’s prior claims for sexual harassment and retaliation. Those claims did not survive the motion for summary judgment for reasons stated above. Also, even though Defendants’ actions may be aggravating, insulting and annoying, the court finds they do not rise to the level of extreme and outrageous conduct as a matter of law. Finally, as pointed out in the moving papers, such a claim for emotional distress in this context is barred by the worker’s compensation exclusivity rule. (See Singh v. Southland Stone, U.S.A., Inc. (2010) 186 Cal.App.4th 338, 366-367 [worker’s compensation exclusivity rule barred intentional infliction of emotional distress claim where employer “berated and humiliated [plaintiff], criticized his job performance, and insulted him with profanities on a regular basis”]; see also Gibbs v. Am. Airlines (1999) 74 Cal.App.4th 1, 10 [“The exclusivity of workers’ compensation extends to intentional infliction of emotional distress by an employer’s work-related conduct so long as the conduct does not contravene public policy.”].) Plaintiff appears to concede this point as he fails to address the worker’s compensation argument in his opposition. Therefore, there is no viable claim for intentional infliction of emotional distress.

Punitive Damages Claim

“Under Civil Code section 3294, punitive damages may be recovered ‘where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice ….”  [Citation.]  Malice is defined as either ‘conduct which is intended by the defendant to cause injury to the plaintiff,’ or ‘despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.’  [Citation.]  Oppression is ‘despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.’  [Citation.] Fraud is ‘an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.’  [Citation.]”  (American Airlines, Inc. v. Sheppard, Mullin, Richter & Hampton (2002) 96 Cal.App.4th 1017, 1048-1049.)  

“The standard for a motion for summary adjudication on a claim for punitive damages is whether clear and convincing evidence exists to support that claim.”  (Szarowicz v. Birenbaum (2020) 58 Cal.App.5th 146, 171.)  “The key element of clear and convincing evidence is that it must establish a high probability of the existence of the disputed fact, greater than proof by a preponderance of the evidence.”  (Nevarrez v. San Marino Skilled Nursing & Wellness Centre, LLC (2013) 221 Cal.App.4th 102, 113.)  

  

Here, Plaintiff requests an award for punitive damages in support of his claims. But, as stated above, Plaintiff’s claims do not survive the motion for summary judgment. Therefore, without a viable cause of action, there is no legal basis to award punitive damages. (See Kizer v. County of San Mateo (1991) 53 Cal.3d 139, 147 [“In California, as at common law, actual damages are an absolute predicate for an award of exemplary or punitive damages.”].)

Accordingly, the motion for summary judgment is hereby GRANTED. As a consequence, the court declines to consider the alternative motion for summary adjudication.

Disposition

The motion for summary judgment to the complaint is GRANTED.

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21CV384267

GAYLE ANNE GRESHAM v. BANK OF STOCKTON, et al.

Plaintiff Gayle Anne Gresham has filed two discovery motions against Defendant Bank of Stockton: a) a motion to compel discovery responses; and b) a motion to deem unanswered request for admission (“RFAs”) admitted. Defendant opposes both motions. After reviewing the parties’ submissions and the record, the Court makes the following holdings/findings:

1. There seems to be no dispute that Defendant responded to all of Plaintiff’s discovery, but late. Defendant argues that all of the discovery responses were served on August 31, 2022, and Plaintiff does not contend otherwise. It is true verifications were served later, but the Court does not view that fact as especially material.

The Court views the underlying motions are MOOT. In particular, the Court finds that the RFA responses are in substantial compliance with Code of Civil Procedure sections 2033.210, 2033.220, and 2033.230. Under section 2033.280, subdivision (c), the Court will not make an order deeming the RFAs admitted just because the RFA responses were served late.

Moreover, the Court will not deem Defendant’s other objections to the discovery waived. Nor will it order production of documents, as the present motion to compel discovery responses is just that: a motion to compel responses, not documents.

2. But that does not mean the request for monetary sanctions is moot. (See Cal. R. Ct. 3.1348(a).) The Court finds that Plaintiff’s motions spurred the service of the discovery responses, and thus were necessary. The Court does not find substantial justification for Defendant’s tardy discovery responses. While the anti-SLAPP motion delayed things with its mandatory stay, Plaintiff’s responses were due before the stay went into effect. And while the Court has sympathy for the health issues of Defendant’s counsel’s senior partner, that alone is not a reason for such tardy responses. Therefore, the Court GRANTS monetary sanctions for both motions.

In addition, under section 2033.280, subdivision (c), imposition of a monetary sanction is mandatory if a party’s failure to serve a timely RFA response necessitated the motion. That is the situation here.

Overall, the Court believes that $5,000 is an appropriate total monetary sanction for both motions, and is supported by evidence. Defendant must pay Plaintiff this amount (c/o Plaintiff’s counsel) within 30 days of this order.

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19CV356647

LEAL & TREJO, APC v. ALUM ROCK UNION ELEMENTARY

SCHOOL DISTRICT, et al.

Plaintiff Leal & Trejo, APC used to represent Defendant Alum Rock Union Elementary School District in various legal matters and as Defendant’s “general counsel.” Plaintiff no longer represents Defendant on any matters.

Plaintiff has filed a lawsuit for breach of contract, claiming Defendant has not paid it approximately $330,000 in legal fees. Defendant denies any liability, asserting various affirmative defenses.

At the start of the case, Plaintiff was been represented by separate counsel (the Allred firm). But in July 2022, Plaintiff decided to represent itself, with its own attorneys defending it. Defendant now moves to disqualify Plaintiff from having its own attorneys represent it. Plaintiff opposes the motion.

I. Timeliness of Motion

A party can waive the issue of attorney disqualification by not raising the issue in a timely fashion. The delay, however, has to be “extreme or unreasonable to act as a waiver.” (Liberty National Enters. v. Chicago Title Co. (2011) 194 Cal.App.4th 839, 844 (Liberty National).)

Here, Defendant promptly raised the issue to Plaintiff once it learned of Plaintiff’s decision to represent itself. Defendant then filed this disqualification motion soon thereafter. There is no waiver.

II. Standing

A court has power to disqualify an attorney under its inherent power and Code of Civil Procedure section 128.5. (Zadar Corp. v. Kwan (1995) 31 Cal.App.4th 1285, 1292.) Before considering a motion to disqualify, however, a court should confirm that the moving party has standing to make the motion. (In re Marriage of Murchison (2016) 245 Cal.App.4th 847, 851.) In other words, the moving party needs to have been a former client of the attorney, or have had some other kind of confidential or fiduciary relationship with the attorney. (Ibid.)

Here, Defendant, the moving party, was the former client of Plaintiff. Yet Defendant is not arguing that Plaintiff might misuse or reveal Defendant’s confidential information. Rather, it is arguing that the jury might be confused if Plaintiff’s own attorneys are defending Plaintiff but also are witnesses at trial. That is not a Defendant-specific interest that will be jeopardized by Plaintiff representing itself.

While the Court is not convinced that Defendant truly has standing to make this disqualification motion, Plaintiff has not raised this argument. The Court therefore assumes Plaintiff accepts that Defendant has standing to make the motion.

III. Legal Standard

When evaluating an attorney disqualification motion, a court “must weigh the combined effect of a party's right to counsel of choice, an attorney's interest in representing a client, the financial burden on a client of replacing disqualified counsel and any tactical abuse underlying a disqualification proceeding against the fundamental principle that the fair resolution of disputes within our adversary system requires vigorous representation of parties by independent counsel.” (McMillan v. Shadow Ridge at Oak Park Homeowner's Assn. (2008) 165 Cal.App.4th 960, 965, internal quotation marks and citation omitted.) “Disqualification may be ordered as a prophylactic measure against a prospective ethical violation likely to have a substantial continuing effect on future proceedings.” (Yim, 55 Cal.App.5th at p. 581.)

Here, Plaintiff wants to represent itself, and states there would be a significant financial impact if it had to hire outside counsel. In addition, there will be vigorous representation of Plaintiff by its own attorneys; there is no lack of independence.

Defendant relies on the client-advocate rule to argue Plaintiff’s continued representation of itself is a significant ethical violation that will drastically affect trial.

Rule 3.7 provides: “A lawyer shall not act as an advocate in a trial in which the lawyer is likely to be a witness unless: [¶] (1) the lawyer's testimony relates to an uncontested issue or matter; [¶] (2) the lawyer's testimony relates to the nature and value of legal services rendered in the case; or [¶] (3) the lawyer has obtained informed written consent from the client.” (Rule 3.7(a), fn. Omitted, emphasis added.) Here, we seemingly have such consent from Plaintiff.

But “a court retains discretion to disqualify a likely advocate-witness as counsel, notwithstanding client consent, where there is a convincing demonstration of detriment to the opponent or injury to the integrity of the judicial process.” (Lopez v. Lopez (2022) 81 Cal.App.5th 412, 423, internal quotation marks and citations omitted.)

Here, the Court finds that the jury is unlikely to be confused if one of Plaintiff’s attorneys represents them at trial. Specifically, Arturo Fierro is lead counsel for Plaintiff, but also is affiliated with Plaintiff. There is no showing that his testimony is necessary, either for Plaintiff or Defendant, since he did very little work for Defendant. And Plaintiff disclaims any intention of having him affirmatively testify. The Court sees no detriment to Defendant or no injury to the judicial process (e.g., jury confusion) if Mr. Fierro handles trial. If Defendant decides to call him, the jury will understand he is not testifying voluntarily, which lessens significantly any confusion.

Defendant also points to two other attorneys with Plaintiff who might be witnesses: Savannah Skelton and Francisco Leal. It is undisputed that they were more involved with Plaintiff’s legal work for Defendant than was Mr. Fierro. But it is unclear whether these attorneys plan to advocate for Plaintiff in front of the jury (e.g., handling witnesses, making opening or closing arguments, etc.). In fact, Plaintiff states its opposition that they will not be advocating in front of the jury. If they are not doing such things, there will be no jury confusion, which significantly decreases the need to disqualify Plaintiff from representing itself.

Moreover, these two attorneys can testify on Plaintiff’s behalf as to the value and nature of legal services provided to Defendant without running afoul of the client-advocate rule. Again, as with Mr. Fierro, if Defendant calls them on other issues, the jury will understand they are not testifying on those issues voluntarily. And the Court agrees with Plaintiff that a well-timed and well-phrased jury instruction can dispel any jury confusion.[2]

Overall, the Court does not see any harm to Defendant if Mr, Fierro, who admittedly is affiliated with Plaintiff, represents Plaintiff in this case and at trial. The Court is mindful of respecting Plaintiff’s choice of counsel, and believes there will be harm to Plaintiff if they have to retain outside counsel at this time. And the Court does not believe the judicial process will harmed if Mr. Fierro stays on the case. For all of these reasons, the Court DENIES the disqualification motion.

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[1] Defendants are represented by the same counsel of record.

[2] The Court does recommend, however, that Ms. Skelton and Mr. Leal not participate actively in pretrial proceedings such as depositions, and that they not advocate in front of the jury. (See (Lopez v. Lopez (2022) 81 Cal.App.5th 412, 424.) That would be the safer route to take.

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