Jun 17, 2018



FRIDAY, June 15, 2018, 9:00 A.M.

Courtroom 16 – Hon. Elliott Daum for Hon. Patrick M. Broderick

3035 Cleveland Avenue, Santa Rosa



The following tentative rulings will become the ruling of the Court unless a party desires to be heard.  If you desire to appear and present oral argument as to any motion, you will need to contact the Judicial Assistant by telephone at (707) 521-6729 by 4:00 p.m., Thursday, June 7th, 2018.  Any party requesting an appearance must notify all other opposing parties of their intent to appear.  Parties in motions for claims of exemption are exempt from this requirement.


CourtCall is available for all Law and Motion appearances, EXCEPT parties in motions for claims of exemption which are mandatory appearances.  CourtCall can be reached directly at (888) 882-6878.


 PLEASE NOTE:  The Court WILL provide a Court Reporter for this calendar.  If there are any concerns, please contact the Court at the number provided above.




1.        MCV-212121, Newport Capital Recovery Group II v. Schweifler:


                Appearances required.




2.        SCV-260535, Cisneros v. Sabetimani:


            Motion to Compel GRANTED. Sanctions in the amount of $950 are awarded to the moving party.


            The prevailing party is to prepare an order conforming with the order of the court, submitting it to the opposing party for review five days prior to submitting it to the court.




3.        SCV-260638, Diaz v. Novoa:


            Motion to Compel GRANTED.  The requests for admission will be deemed admitted unless the responding party provides responses in substantial compliance with the requirements by the time of the hearing. Reasonable sanctions of $945 awarded to the moving party.


            The prevailing party is to prepare an order conforming with the order of the court, submitting it to the opposing party for review five days prior to submitting it to the court.





4.        SCV-261003, Lomanto v. Sonoma County Sheriff’s Office:


                                Demurrers Overruled.


It is not clear as a matter of law that collateral estoppel bars a claim of discrimination based on the termination.  In Castillo v. City of Los Angeles (2001) 92 Cal.App.4th 477, the court found that the issue, the wrongfulness of plaintiff's discharge, was identical in the previous administrative proceeding and in the discrimination action in part because in both the plaintiff alleged that his absences were treated in a discriminatory manner so the issue was actually litigated and decided. In this case, it does not appear on the face of anything which the court may consider that the claims of discrimination were raised at all in the commission proceedings.  Thus, the issues of discrimination and pretext were not “actually litigated” in the Commission proceedings, making this case distinguishable from Castillo.  The issue of pretext is particularly significant because while the Commission proceedings may have actually determined that there was a valid, legal, basis for the termination, absent litigation of the issues of a discrimination claim, there would be no litigation, or ruling on, whether this legal basis was a mere pretext, or that defendant treated plaintiff differently from others who had also demonstrated similar misconduct but who lacked plaintiff’s alleged disability.  Plaintiff on a discrimination claim may, at least with “specific” and “substantial” evidence, demonstrate that the defendants’ proffered non-discriminatory motive was a mere pretext. Deschene v. Pinole Point Steel Co. (1999) 76 Cal.App.4th 33, 46; Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 225; Hersant v. Department of Social Servs. (1997) 57 Cal.App.4th 997, 1007.   


In any case, defendant is not persuasive that the conduct other than termination, specifically the order sending plaintiff home after he had disclosed his disability, the IA investigations into plaintiff after he had disclosed his disability, and the requirement that he directly call his sergeant if out sick, cannot as a matter of law amount to adverse action.


As the Supreme Court explained in Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, at 1052, one must not adopt an “unduly narrow view of the type of adverse employment actions that are forbidden by section 12940(a).”  It explained that although an adverse employment action must materially affect the terms, conditions, or privileges of employment to be actionable, the determination of whether a particular action or course of conduct rises to the level of actionable conduct should take into account the unique circumstances of the affected employee as well as the workplace context of the claim.


It noted at 1054-1055 that “adverse employment action” must rise to the level of “materially affecting the terms, conditions, or privileges of employment,” it also is extremely broad and “not, by its nature, susceptible to a mathematically precise test.”  Thus, it elaborated at 1053-1054, with emphasis added, FEHA protects an employee against unlawful discrimination with respect not only to so-called “ultimate employment actions” such as termination or demotion, but also the entire spectrum of employment actions that are reasonably likely to adversely and materially affect an employee's job performance or opportunity for advancement in his or her career. Although a mere offensive utterance or even a pattern of social slights by either the employer or co-employees cannot properly be viewed as materially affecting the terms, conditions, or privileges of employment for purposes of section 12940(a)… the phrase “terms, conditions, or privileges” of employment must be interpreted liberally and with a reasonable appreciation of the realities of the workplace in order to afford employees the appropriate and generous protection against employment discrimination that the FEHA was intended to provide.


As a result, “the significance of particular types of adverse actions must be evaluated by taking into account the legitimate interests of both the employer and the employee.”  Yanowitz, 1054. 


There also “is no requirement that an employer's retaliatory acts constitute one swift blow, rather than a series of subtle, yet damaging, injuries.”  Yanowitz, supra, 36 Cal.4th at 1055.  Accordingly, “it also is true that in many cases, the employee is affected by a series of employment actions, at least some of which might not, in and of themselves, constitute a material change in the terms or conditions of employment. In such cases, it is appropriate to consider the plaintiff's allegations collectively under a totality of the circumstances approach.” McRae v. Department of Corrections and Rehabilitation (2006) 142 Cal.App.4th 377, at 387-388.


Defendant relies on McRae v. Department of Corrections and Rehabilitation (2006) 142 Cal.App.4th 377, at 382, for the proposition that an IA investigation cannot constitute an adverse action but the reliance is groundless.  Preliminarily, it is inapplicable because it dealt with the sufficiency of the evidence at trial, not an issue of a matter of law at the pleading stage.  Secondly, in no way did the ruling even remotely reject the possibility that an IA investigation would be “adverse action” and in fact it was limited to the specific facts based on the evidence presented.  The court explained the bases for its decision at 390, noting evidence that the employer in that case had demonstrated valid, bona fide reasons for the treatment of the plaintiff; plaintiff had failed to demonstrate these were mere pretext, and a failure of plaintiff to demonstrate a sufficient causal link between the treatment and discriminatory animus:


Our conclusion is based in part on our finding that what Dr. McRae contended was a continuous course of conduct was in fact a series of events, each bearing little relationship to the others, and at least some of which clearly were not the result of unlawful retaliation. We also find that much of which Dr. McRae complains, whether considered piecemeal or as part of a continuous course of conduct, does not and cannot rise to the level of an actionable adverse action. Finally, we find that the Department stated valid, nondiscriminatory reasons for its actions, and that Dr. McRae did not meet her burden of establishing that the Department's asserted reasons were pretextual.


Defendant also is not persuasive that plaintiff does not, as a matter of law, show a failure to accommodate because plaintiff does not clearly show that he provided sufficient detail for defendant to have “known” of his disability.  Plaintiff expressly states that the told his supervisors and others of his PTSD, that he was self-medicating with alcohol, he expressly requested treatment and accommodation for these conditions, and defendant in fact provided a letter noting his conditions and promising help which it, allegedly, never provided.  SAC ¶¶24-28, 31-35.


Similarly, defendant is not persuasive that the allegations show that it did engage as required.  Plaintiff does allege that defendant may have sent a note regarding possible accommodation for leave of absence but while this could support defendant’s position, the other allegations could support a finding that in fact defendant was making no real effort and instead merely sent the letter, if at all, as a formality while actually just punishing plaintiff with the IA investigation, etc.  In short, there is simply a conflict of evidence.


                        Request for judicial notice granted.


The prevailing party is to prepare an order conforming with the order of the court, submitting it to the opposing party for review five days prior to submitting it to the court.





5.        SCV-261552, Budow V. Oakmont Senior Living, LLC:


            Motion for Leave to File 3rd Amended Complaint is GRANTED, conditioned upon Plaintiffs allowing expedited depositions and written discovery to take place within 45 days. The court will briefly continue the trial to 9/7/18, vacating the 8/3/18 date.


            The prevailing party is to prepare an order conforming with the order of the court, submitting it to the opposing party for review five days prior to submitting it to the court.



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