Jun 27, 2022
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TENTATIVE RULINGS: CIVIL LAW & MOTION 
Wednesdsay, June 15, 2022 at 3:00 p.m.          
Courtroom 18- Hon. Jennifer V. Dollard
Civil and Family Law Courthouse
3055 Cleveland Avenue
Santa Rosa, California 95403
 
PLEASE NOTE:  In accordance with the Order of Presiding Judge, a party or representative of a party may appear in Department 18 in person or remotely by Zoom, a web conferencing platform. However, appearances by Zoom are STRONGLY encouraged. Whether a party or their representative will be appearing in person or by Zoom must be part of the notification given to the Court and other parties stated below.
 
Masks need not be worn in the courthouse if you are fully vaccinated.
 
Persons are considered vaccinated two weeks after the final dose in a primary series of vaccinations.
 
All unvaccinated persons entering any Sonoma County Superior Courthouse, including any remote jury selection location, shall wear a face covering at all times compliant with all California State Health Orders and CAL/OSHA standards which must completely cover both the nose and mouth. 

CourtCall is not permitted for this calendar.
 
If the tentative ruling does not require appearances, and is accepted, no appearance is necessary. 
 
Any party who wishes to be heard in response or opposition to the Court’s tentative ruling MUST NOTIFY the Court’s Judicial Assistant by telephone at (707) 521-6602 and MUST NOTIFY all other parties of the intent to appear, and whether they will appear in person or by Zoom. Both notifications must be completed no later than 4:00 p.m. on the court (business) day immediately before the day of the hearing.
 
Unless notification of an appearance has been given as provided above, the tentative ruling shall become the ruling of the court the day of the hearing at the beginning of the calendar. 
 
 
To Join Department 18 “Zoom” Online

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To Join Department 18 “Zoom” By Phone:
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Enter Meeting ID: 838-5609-8726
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Guide for Participating in Court Proceedings via Zoom for Dept 18:
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1&2.    SCV-260679, Gorder v. Mutert
 
For the reasons outlined below, hearing on Defendant’s Motion for Attorney’s Fees and Costs is CONTINUED to the next available law and motion hearing date of September 28, 2022 at 3:00 p.m. in this department.
The Defendant is ordered to re-calculate the amounts sought consistent with the findings made in connection with this ruling. Any additional briefing by Defendant Mutert on the remaining issues is ordered to be filed by August 29, 2022. Defendant is also ordered to submit an updated Memorandum of Costs consistent with the Court’s findings below. Plaintiffs must file any supplemental opposition by September 12, 2022 and any reply by Defendant must be filed by September 19, 2022.
Plaintiffs’ motion to strike Defendant’s memorandum of costs is DENIED. For the reasons stated in Defendant’s opposition, the Court finds the memorandum of costs timely filed. Plaintiffs’ alternative motion to tax costs is also CONTINUED to September 28, 2022 at 3:00 p.m. No additional briefing is required on this motion.  
Both Plaintiffs’ and Defendant’s requests for judicial notice are GRANTED.  
The Court makes the following rulings which should guide the parties’ supplemental briefing:
1.      Counsel’s Hourly Rates Must be Adjusted.
 
The standard for calculating attorney fee awards under California law,
      [O]rdinarily begins with the 'lodestar,' i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate…The lodestar figure may then be adjusted, based on consideration of factors specific to the case, in order to fix the fee at the fair market value for the legal services provided. [Citation.] Such an approach anchors the trial court's analysis to an objective determination of the value of the attorney's services, ensuring that the amount awarded is not arbitrary.
(PLCM Group, Inc. u. Drexler (2000) 22 Cal.4th 1084, 1095 (PLCM Group).) In calculating the lodestar, "The reasonable hourly rate is that prevailing in the community for similar work." (Ibid.) "[T]he trial court has broad authority to determine the amount of a reasonable fee." (PLCM Group, supra, 22 Cal.4th at p. 1095.) "The determination of what constitutes reasonable attorney fees is committed to the discretion of the trial court. [Citation.] The experienced trial judge is the best judge of the value of professional services rendered in his or her court. [Citation.]” (Rey v. Madera Unified School Dist. (2012) 203 Cal.App.4th 1223, 1240.)
In setting the lodestar, “[t]he general rule is ‘[t]he relevant “community” is that where the court is located,’ unless the party claiming fees demonstrates that hiring local counsel was impracticable or local counsel was not available.” (Marshall v. Webster (2020) 54 Cal.App.5th 275, 285-286, italics added; Ketchum v. Moses (2001) 24 Cal.4th 1122, 1138 ["the unadorned lodestar reflects the general local hourly rate for a fee-bearing case," italics omitted]; Nishiki v. Danko Meredith, APC (2018) 25 Cal.App.5th 883, 898 [‘The rates of comparable attorneys in the forum district are usually used’]; Altavion, Inc. v. Konica Minolta Systems Laboratory, Inc. (2014) 226 Cal.App.4th 26,72 ["fee awards generally should be based on reasonable local hourly rates"]; see also Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 398-399 [different rule where plaintiff demonstrated inability to hire local counsel]; Center for Biological Diversity v. County of San Bernardino (2010) 188 Cal.App.4th 603, 618-619 [same].)
The court may consider various other factors when determining a reasonable hourly rate, including the attorney’s skill and experience, the nature of the work performed, the relevant area of expertise and the attorney's customary billing rates. See, e.g. Flannery v. California Highway Patrol (1998) 61 Cal.App.4th 629, 632-633; Stratton v. Beck (2017) 9 Cal.App.5th 483, 496. However, it is only where a plaintiff has made a good faith but unsuccessful effort to find local counsel that out-of-town counsel is not limited to fees determined at local hourly rates. See, e.g. Horsford v. Board of Trustees of Calif. State Univ., supra, 132 Cal.App.4th at 398-399 (hiring local counsel was attempted numerous times and deemed to be impracticable); Center For Biological Diversity v. County of San Bernardino, supra, 188 Cal.App.4th at 608, 614-615 (trial court erred in setting lodestar based on local hourly rates, rather than rates of competent attorneys outside local market, where evidence showed local counsel was unavailable for appellate work).
 
Defendant’s counsel suggests that they should be awarded the following hourly rates:
 
1)      Garrett (Partner)                $525-$575
2)      Hanna (Partner)                 $650-$675
3)      Van Atta (Partner)             $595-$625
4)      Blake (Associate)             $375
 
Counsel claims these are reasonable Bay Area rates and the Bay Area market should be used in calculating the loadstar. However, Sonoma County has not been considered or treated as part of the greater Bay Area for purposes of setting legal compensation by this Court historically. Sonoma County has its own legal community with rates considerably lower (by as much as half) than those of San Francisco County or Alameda County, for example. There is also no evidence here that Defendant made a good faith effort to find local counsel in order to justify granting Bay Area rates.  (The Court is in receipt of Plaintiffs’ objection to the supplemental evidence filed in connection with the reply on this point. As the Court’s ruling is in favor of Plaintiffs, the Court sees no utility in striking the evidence or continuing this for further briefing.)
 
“In making its calculation [of a reasonable hourly rate], the court may rely on its own knowledge and familiarity with the legal market, as well as the experience, skill, and reputation of the attorney requesting fees [citation], the difficulty or complexity of the litigation to which that skill was applied [citations], and affidavits from other attorneys regarding prevailing fees in the community and rate determinations in other cases.” (569 East County Blvd, LLC v. Backcountry Against the Dump, Inc. (2016) 6 Cal.App.5th 426, 437.) In exercising this discretion, the Court finds that the outcome of each case is highly dependent on the individual circumstances of a particular matter, and that comparison to other cases can be misleading and is generally not helpful.
 
The Court finds that the rates requested by Defendant’s counsel are unreasonable for the local legal community. The Court instead finds rates equivalent to those of the local legal community appropriate. The highest rate this Court generally awards for legal work by a partner or senior associate is $450. The typical local current rate for an associate is $300 to $350. However, as the request for judicial notice establishes, on rare occasions when the skill and/or complexity of a matter requires it, a Court may award a higher rate. Here, the Court does find that the subject matter of the litigation did require specialized skill and knowledge of counsel, and that counsel were preeminently qualified. The Court also recognizes based on its own experience that local rates are facing upward price pressure due to ongoing inflation and the scarcity of staff, particularly support staff. Accordingly, the Court finds the following are reasonable rates based on all the circumstances presented in this particular case:
 
1)      Garrett (Partner)                 $450 - $500
2)      Hanna (Partner)                  $500 - $550
3)      Van Atta (Partner)              $500 - $550
4)      Blake (Associate)               $350
 
2.      Time Spent On, and Costs Relating To, the “Tree Claims” Must be Excluded, as Defendant was not the Prevailing Party on those Claims.
 
The Court rejects the argument that half of the costs and fees associated with Plaintiff's expert MacNair may be recovered despite the settlement of the tree removal claim. At trial there was no generalized evidence of “firescaping issues” offered to criticize the Defendant’s performance as Owner Representative. All costs associated with this expert and other witnesses related to the removal of tree claim must be removed.
 
3.      Defendant Must Submit an Updated Memorandum of Costs Which Reflects the Deductions of the Costs Relating to the “Tree Claims” as Well as Deductions of the Amounts Conceded by Defendant in his Responsive Briefing that Should be Deducted (i.e. “$49.05 for copies of topographic maps”, “$95 for Item 5”, etc.)
 
The Defendant is directed to submit a new memorandum of costs that incorporates the changes resulting from the Court’s ruling as well as those items conceded by Defendant so that the parties have a single, “clean” document with which to work. It should be filed and served by August 29, 2022.
 
4.      The Court will Exercise its Discretion and Grant Reimbursement of Costs Outlined in Items 12(e)-(g) (models, enlargements, and photocopies) Because These Items Were Helpful to The Trier of Fact at Trial.
 
Based on the representation that these costs all relate to the trial notebook mandated by the Court, the Court finds they are properly included as recoverable costs. The trial notebook was instrumental to the Court’s ability to act as the trier of fact in this case.
 
5.       The Question of Recovery of Interest is Continued for Further Briefing.
 
            The request for recovery of interest was not raised until the reply and Plaintiffs have not had an opportunity to be heard on the request. It is therefore continued for supplemental briefing. 
Any other issues remaining outstanding, or arising as a result of this partial ruling of the Court, are continued to the future hearing date.
 
 
3.         SCV-264994, Quan v. Holzman
 
This matter is on calendar to determine the remaining issue of sanctions regarding Plaintiff’s motions to compel discovery. The discovery referee has submitted a request for this hearing to be continued because he did not receive the Court’s previous ruling on these motions until the day his report would have been due. The request for a continuance is GRANTED and this matter is CONTINUED to July 27, 2022 at 3:00 p.m. in Dept. 18. Plaintiff’s counsel is ordered to notify the discovery referee of this new hearing date within 5 days.
 
 
4&5.    SCV-267127,  Parr v. Sutter Bay Hospitals
 
Defendants Sutter Bay Hospitals and Sutter Health have each filed a motion for summary judgment, or in the alternative, summary adjudication. The Court responds to both motions as follows.
Summary judgment is DENIED. Summary adjudication is GRANTED in favor of Defendants as to the Seventh and Tenth causes of action. Summary adjudication is DENIED as to the rest. 
Plaintiff’s objections to the Defendants’ evidence and requests to strike are each OVERRULED. Defendants’ objections to Plaintiff’s evidence are each OVERRULED. Plaintiff’s request for judicial notice of Exhibit 1 is GRANTED, however, the request for judicial notice of Exhibits 2-4 is DENIED.
General Underlying Facts:
Defendant Sutter Bay Hospitals (SBH) is a regional health care system consisting of hospitals including Sutter Santa Rosa Regional Health (SSRRH), the hospital at which Plaintiff, Michael Parr was employed for approximately 30 years. (Sutter Bay Separate Statement, Material Fact “SBMF”, 1-2.) Defendant Sutter Health claims that it is merely a parent corporation of Defendant SBH, and was engaged by SBH as a third party “to provide disability management and payroll services”; therefore, it was not an employer or joint employer of Plaintiff. (Sutter Health Separate Statement, Material Fact “SHMF”, 1-5.) Plaintiff claims to the contrary that Sutter Health set policy for SSRRH and trained its staff, and that individual employees of Sutter Health were involved in managing Plaintiff, in his disability processes, and in his ultimate termination. (Response to Sutter Health Separate Statement Material Fact “RSHMF”, 1-3; Response to Sutter Bay Separate Statement “RSBMF”, 2.)
In 2017, Plaintiff suffered a personal medical issue which ultimately resulted in an above the knee amputation of his right leg. (SBMF, 5.) As a result, Plaintiff requested and received a leave of absence from work, including a CFRA leave, from May 17, 2017 through July 10, 2019. (SBMF, 5.) This matter arises out of the series of events which transpired after Plaintiff’s return to work in relation to his requests for accommodations for his disability, evaluations of his fitness for work, and his ultimate termination from employment.
Plaintiff made a number of accommodation requests, which he purports to have been reasonable, such as a scooter to help him get around more quickly and a grab bar at the top of a ladder to help him climb. (SBMF, 65, Additional Material Facts “AMF”, 16.) Defendants assert that these requests were not reasonable and that Defendant was no longer fit for duty, based on the reports of Dr. Jurado—who performed a Functional Capacity Evaluation on Plaintiff when it was determined by Defendants that Plaintiff should have a Fitness for Duty Examination—as well as Plaintiff’s primary care doctor, Dr. Wolf. (SBMF, 14-17, 22-26.) Plaintiff challenges that the contents of these reports were based on false information about Plaintiff’s abilities and performance provided by Defendants. (Response to same.) Plaintiff further asserts that the Fitness for Duty Examination was not necessary in the first place because Plaintiff demonstrated his fitness for duty and his personal physician deemed him fit for duty, if granted certain accommodations. (Response to same.)
Defendants deemed Plaintiff unable to perform the “essential functions” of his job when they understood from Dr. Jurado’s report that Plaintiff could not “climb ladders.” (SBMF, 34.) After this determination, Defendants offered for Plaintiff to participate in the Alternative Job Search (“AJS”) program to try to find a new job. (SBMF, 34.) Plaintiff asserts that “climbing ladders” was not an “essential functions” of his position, but nonetheless he was able to climb ladders and had been doing so since his return to work. (RSBMF, 13, 34.)
After not finding alternative work at the end of the AJS program, Defendants terminated Plaintiff’s employment. (SBMF, 46.) Defendants claim that Plaintiff’s failure to find alternative work during this program was the reason for his termination. (SBMF, 46-52.) However, Plaintiff claims that the reason he was placed in this program in the first place was because of his disability and Defendants refusal to reasonably accommodate. (Response to same.)
Defendant Sutter Health argues in its moving papers that there are no triable issues of material fact regarding whether it can be considered a joint employer of Plaintiff, and thus all of the causes of action against it cannot be proven on this theory.
Defendant Sutter Bay Hospitals claims that there are no triable issues of material fact as to any of the causes of action against it because Plaintiff cannot prove that he was qualified to perform the essential job duties or that SBH failed to reasonably accommodate his disability. SBH further argues that Plaintiff cannot prove he was terminated because of his age or his disability, that he was harassed, that he was retaliated against and cannot prove outrageous conduct on behalf of its employees.
Standards on Summary Judgment and Adjudication
            A party moving for summary judgment must show that there is no triable issue as to any material fact and the moving party is entitled to a judgment as a matter of law. (CCP § 437c(c).) A party moving for summary adjudication of a cause of action must prove that the cause of action has no merit and summary adjudication may only be granted if it completely disposes of the cause of action. (CCP § 437c(f)(1).) “A defendant or cross-defendant has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action.” (CCP § 437c(p)(2).) “Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Ibid.)
            The burden-shifting test of McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 requires Plaintiff to make a prima facie showing of the elements of his discrimination causes of action. However, the McDonnell Douglas burden-shifting test applies at trial. (Guz v. Bechtel Nat. Inc. (2000) 24 Cal. 4th 317, 355.) The burden of proof remains with Defendants on a summary judgment motion. (See Addy v. Bliss & Glennon (1996) 44 Cal.App.4th 205, 216 [although the burden of proof ultimately rests with the plaintiff at trial, “ ‘the burden is reversed in the case of a summary issue adjudication or summary judgment motion’ ”]; Abed v. Western Dental Services, Inc. (2018) 23 Cal.App.5th 726, 737 [McDonnell Douglas does not alter the procedural rule that the moving party bears the initial burden on summary judgment].)
Sutter Health’s Motion
            Sutter Health argues that all of Plaintiff’s causes of action against it fail because it never employed Plaintiff and cannot be considered his joint employer with SBH. (Sutter Health Amended Motion.) Sutter Health claims that it was merely a “third party” who provided SBH with disability management and payroll services. (SHMF, 4.)

         However, the evidence establishes that the question of whether Sutter Health could be considered Plaintiff’s joint employer is a material question of fact which must be determined by a jury. Plaintiff has provided evidence that Sutter Health employees may have been involved in the process during Plaintiff’s disability accommodations, fitness for duty evaluation, AJS program, and ultimate termination. (RSHMF, 1-3; RSBMF, 2.) As an example, the role of Deborah Davis, a Sutter Health employee, in coordinating between SSRRH and Plaintiff during Plaintiff’s disability proceedings must be evaluated by a jury in determining whether Sutter Health can be considered a joint employer. (Def. Evidence, Ex. C.)

            Defendant Sutter Health cites to a plethora of cases in an effort to argue that it cannot be considered an employer or a joint employer of Plaintiff. However, this is not a legal issue to be resolved by the Court. It is a factual issue to be resolved by a jury. Defendant has not met its burden of proving that this need not go to a jury. Accordingly, Sutter Health’s motion for summary judgment is denied.
Sutter Health’s motion for summary adjudication is analyzed in the same manner, and the Court issues the same ruling, as for Defendant SBH’s motion below.
Sutter Bay Hospitals’ Motion
 I.            First and Second Causes of Action (Discrimination)
 
a.       There are Triable Issues of Material Fact as to Whether Plaintiff was Qualified for His Position
            Defendants argue that Plaintiff cannot prove this element of the first two causes of action because he was no longer qualified to do his job, based on the reports of Dr. Jurado and Dr. Wolf. Plaintiff argues that the results of these reports were based on false information provided by Defendants. Furthermore, Plaintiff argues that the reports did not establish that Plaintiff was not fit for the job anymore, but rather stated that he would require certain accommodations until a future time when he would be able to work without any accommodations. These reports, as well as the other evidence regarding Plaintiff’s abilities and disabilities, must be evaluated by a jury.
 
There is also a triable issue of material fact regarding what exactly the “essential job functions” of Plaintiff’s position were. Defendants argue that kneeling, squatting, and crawling and ladder climbing were essential job functions and the fact that the report said Plaintiff could not do those things rendered him no longer qualified for the position. However, Plaintiff argues that has able to do these things without a problem or with reasonable accommodation, and that squatting was never a function of the job. Defendants have not established that there is no triable issue of material fact regarding Plaintiff’s qualification to do the job or the essential functions of the job.
 
b.      There are Triable Issues of Material Fact as to Whether Plaintiff Suffered “Adverse Employment Action”
 
Defendants argue that Plaintiff did not suffer any adverse employment action because his termination resulted from his failure to find alternative work. However, this argument ignores the events leading up to Plaintiff’s participation in the AJS program. The question for the jury to decide regarding this element is whether asking Plaintiff to find a new job because he was determined unfit for duty was an adverse employment action.
 
Defendants argue that Plaintiff’s participation in the AJS program was voluntary; however it is unclear that Plaintiff had any other option for keeping his position. (Def. Evidence, Ex. 34.) A jury must determine if placing Plaintiff in the AJS program was adverse employment action.
 
There is also a question of fact as to whether requiring Plaintiff to participate in a Fitness for Duty examination in the first place could be considered adverse employment action, as the results of this examination initiated the sequence of events that lead to Plaintiff’s termination.
 
Plaintiff has further offered evidence that, when he returned from his leave of absence (LOA), he was not given a uniform, a laptop, or tools, which were things he would normally have prior to his LOA, and that he was assigned to tasks, such as rounds, on a disproportionate basis. (RSBMF, 12.) The jury must determine whether these could be considered adverse employment actions.
 
Accordingly, there are several triable issues of material fact regarding this element.
 
c.       There are Triable Issues of Material Fact as to Whether Defendants had a Legitimate, Non-Discriminatory Reason for Terminating Plaintiff
 
As touched on above, Defendants argue that they had a legitimate, non-discriminatory reason for terminating Plaintiff: he failed to find alternative work during the AJS program. However, a jury must decide whether this reason is legitimate. As explained, this argument ignores the events leading up to Plaintiff’s participation in the program. This argument also ignores the fact that the letter sent by Ms. Davis on October 28, 2019 (Def. Exhibit 34) states, “effective November 8, 2019 your department will be permitted to post and fill your position to meet their departmental operational needs…”, “IDAM will facilitate an alternative job search of at least 90 days for you in an effort to place you in a position for which you are qualified and can perform the essential functions (with or without accommodation)…”, “Please understand that if you do not participate in this process, we will close the search with the understanding that you are no longer interested in pursuing an alternative job search and turn the matter over to Human Resources to separate employment.” This language indicates the possibility that there was a reason independent of the results of the AJS program for “separating employment,” such that if Plaintiff did not participate in the AJS program the matter would be turned over to Human Resources for Plaintiff’s termination. A jury must evaluate what the true reason for terminating Plaintiff’s employment was and whether that reason was motivated by discrimination.
 
d.      There are Triable Issues of Material Fact as to Whether the Circumstances Suggest Defendants Acted with Discriminatory Motive (First COA)
 
The Court cannot decide this question without putting itself in the place of the jury and weighing the evidence. Therefore, this question must be posed to a jury.
 
II.            Third and Fourth Causes of Action (Harassment)
 
Defendants argue that Plaintiff cannot prove he was harassed on the basis of his age or disability because he cannot prove that he was subject to conduct that was “sufficiently severe or pervasive to alter the conditions of his employment and create an abusive working environment.” However, whether the conduct complained of by Plaintiff meets this standard is a triable issue of material fact. Plaintiff argues that that he was subjected to constant monitoring of his every move, that employees made false statements about his performance and his odor, that he was required to work without his laptop and tools, and that he was assigned to the hardest tasks. (RSBMF, 12-13.) Plaintiff asserts that he felt harassed because employees of SBH made comments about Plaintiff’s alleged odor out loud in front of other employees such as “It stinks in here” while looking at Plaintiff and “He still smells.” (RSMF, 18.) Whether this conduct complained up rises to the level of severity required to establish harassment, and whether it altered his work conditions or created an abusive work environment, are factual questions a jury must decide.
 
III.            Fifth Cause of Action (Failure to Accommodate)
 
The case of Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 263, provides,
 
      …[A]ssuming the employee is disabled, the employer cannot prevail on summary judgment on a claim of failure to reasonably accommodate unless it establishes through undisputed facts that (1) reasonable accommodation was offered and refused; (2) there simply was no vacant position within the employer's organization for which the disabled employee was qualified and which the disabled employee was capable of performing with or without accommodation; or (3) the employer did everything in its power to find a reasonable accommodation, but the informal interactive process broke down because the employee failed to engage in discussions in good faith.
 
Here, Defendants have not established that they provided Plaintiff with a reasonable accommodation that was refused, nor that they did everything in their power to find a reasonable accommodation for Plaintiff. So, under the Jensen holding, Defendants cannot prevail on summary judgment. Even aside from the Jenson holding, the issue of whether defendants failed to provide reasonable accommodation for the plaintiff’s condition is a triable issue. The evidence shows that Plaintiff made a number of requests for accommodations, based on the findings of Dr. Jurado and Dr. Wolf, to be able to continue to do his job. The evidence further shows that Defendants did not approve all of the accommodations requested by Plaintiff, such as a scooter or a grab handle on the ladder. Whether Defendants’ refusal of these accommodations requests was reasonable is inherently a question of material fact for a jury to determine.
 
IV.            Sixth Cause of Action (Retaliation)
 
Defendants claim that this cause of action has no merit because intervening favorable treatment breaks the causal link between protected activity and adverse action. Thus, they argue that their grant of a leave of absence and the option to participate in the AJS program was intervening favorable treatment which broke the causal link between their denial of Plaintiff’s accommodation request and his ultimate termination. They further argue that they had a legitimate, non-discriminatory reason for terminating Plaintiff. The triable issue of material fact regarding their claimed legitimate reason for terminating Plaintiff is discussed above.
 
Regarding their purported favorable intervening treatment, it is unclear how the granting of a leave of absence intervened between Plaintiff’s requests for accommodations after he returned from the leave of absence and his ultimate termination. Thus, this argument is not convincing to the Court. In so far as Defendants argue that their offer to participate in the AJS program was intervening favorable conduct, this must be determined by a jury. The Court’s analysis on whether the AJS program could have been considered voluntary can be found above. The jury must decide whether the AJS program was an “offer” or an ultimatum.  
 
V.            Seventh Cause of Action (Interfering with CFRA rights)
 
“Violations of the CFRA generally fall into two types of claims: (1) ‘interference’ claims in which an employee alleges that an employer denied or interfered with her substantive rights to protected medical leave, and (2) ‘retaliation’ claims in which an employee alleges that she suffered an adverse employment action for exercising her right to CFRA leave.” (Rogers v. County of Los Angeles (2011) 198 Cal.App.4th 480, 487-488. Here, it appears Plaintiff is prosecuting an interference theory based on the language of the Complaint and based on Plaintiff’s failure to respond to Defendants’ arguments regarding whether there are triable issues of material fact to support a retaliation theory (Plaintiff only argues there are triable issues of fact to “for Interference with CFRA rights.”
  
In order to prove an interference claim, Plaintiff must prove (1) he was entitled to CFRA leave rights; and (2) the employer interfered with or denied those rights. (Choochagi v. Barracuda Networks, Inc. (2020) 60 Cal.App.5th 444, 454.) Here, the evidence shows, and Plaintiff has not disputed, that Plaintiff was granted and took CFRA leave. (RSBMF, 11-12.) The conduct complained of by Plaintiff occurred after Plaintiff returned to work after completing his CFRA leave. (RSBMF, 9.) Plaintiff has not alleged that his leave was cut short. Accordingly, there is no triable issue of material fact and Defendants are entitled to judgment in their favor on this case of action.
 
            Plaintiff cites to an unreported federal district court case (Billal v. Alere Health, LLC 2015 WL 1600753) to argue that he may prove an interference claim by showing that the taking of CFRA leave constituted a negative factor in the decision to terminate Plaintiff. This case is neither binding nor persuasive authority, thus it will not be considered by the Court. However, Plaintiff includes in his moving papers the case of Xin Liu v. Amway Corp. (2003) 347 F.3d 1125, which is good law and discusses whether an interference claim can be proven by showing the former employer considered the leave taken when determining whether to terminate the employment. (Id. at 1135-1136.) This case is distinguished. It does not stand for the proposition Plaintiff is arguing. Rather, it involves a plaintiff who claimed her CFRA leave rights were interfered with when she was terminated while she was on CFRA leave. In that case, showing the employer took into consideration the leave when terminating her would prove interference with CFRA rights because the termination itself cut short the CFRA leave. That is not the case here. There is no indication Plaintiff’s CFRA leave was interfered with, thus summary adjudication in Defendants’ favor is granted as to this cause of action.
 
  1.            Eighth and Ninth Causes of Action (Wrongful Termination – Public Policy & Failure to Prevent Discrimination)
 
There are triable issues of fact as to these causes of action for the same reasons explained above regarding Plaintiff’s FEHA causes of action.
 
  1.           Tenth Cause of Action (Intentional Infliction of Emotional Distress “IIED”)
 
Defendants argue that this cause of action is barred by the Worker’s Compensation Exclusivity Rule. Generally, under the workers' compensation doctrine, when an injured employee is entitled to recover workers' compensation benefits, those benefits constitute the employee's exclusive remedy against the employer and his or her fellow employees. (Lab. Code, §§ 3600, 3601, 3602.) When these conditions of compensation exist, the exclusive remedy for injury or death of an employee against an employer or fellow employee is workers’ compensation. (Lab. Code §§ 3601-3602.) “[T]he basis for the exclusivity rule in workers' compensation law is the ‘presumed “compensation bargain,” pursuant to which the employer assumes liability for industrial personal injury or death without regard to fault in exchange for limitations on the amount of that liability. The employee is afforded relatively swift and certain payment of benefits to cure or relieve the effects of industrial injury without having to prove fault but, in exchange, gives up the wider range of damages potentially available in tort.’ [Citation.]” (Fermino v. Fedco, Inc. (1994) 7 Cal.4th 701, 708 (Fermino), quoting Shoemaker v. Myers (1990) 52 Cal.3d 1, 16.)
 
The exclusivity rule does not apply, however, when the employer's conduct falls outside the scope of compensation bargain. (Fermino, supra, 7 Cal.4th at pp. 706-707; Shoemaker v. Myers, supra, 52 Cal.3d at pp. 15-16; Cole v. Fair Oaks Fire Protection Dist. (1987) 43 Cal.3d 148 [actions for damages permitted where employer's misconduct “was not considered a risk of the employment” or where “injury ... did not occur while the employee was performing service incidental to the employment and which would not be viewed as a risk of the employment”].) “The purpose of the Act was to compensate for losses resulting from the risks to which the fact of employment in the industry exposes the employee.” (Bell v. Indus. Vangas, Inc. (1981) 30 Cal. 3d 268, 277.) 
 
     To be compensable under workers’ compensation, an injury must “aris[e] out of and in the course of the employment.” (Lab. Code § 3600.) This two-pronged requirement is the cornerstone of the workers’ compensation system. [Citation.] In applying this, this court must be guided by the equally fundamental principle that the requirement is to be liberally construed in favor of awarding benefits [through workers’ compensation].
 
(Maher v. Workers’ Comp. Appeals Bd. (1983) 33 Cal.3d 729, 732-734. Italics in original.)
           
There is no evidence before the Court that Plaintiff’s alleged emotional injury arose from conduct which fell outside of the employment relationship. Plaintiff argues to the contrary that basing allegations of inability to perform on unverified hearsay, making false statements to medical providers, and indicating Plaintiff’s odor violated the dress code was conduct outside of the employment relationship. However, this argument is not convincing. Even if it is assumed that Plaintiff’s allegations are true, the act of requiring a fitness for duty evaluation and providing information to the evaluating doctor, and the act of enforcing the dress code are each acts within the employment relationship. The Court sees no other conduct within the evidence which would be considered conduct outside the employment relationship. Accordingly, Defendants are entitled to judgment in their favor on this cause of action.
 
  1.             Punitive Damages
 Civil Code § 3294(a) provides in relevant part that “where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.” Civil Code § 3294(b) provides in relevant part that an employer shall not be liable for damages under section (a) based upon acts of an employee unless an officer, director, or managing agent of a corporate 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.” Civil Code § 3294(c) defines “malice” as “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,” “oppression” as “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights” and “fraud” as “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.” A managing agent is not merely a supervisor. (White v. Ultramar, Inc. (1999) 21 Cal.4th 563, 576 [“… the Legislature intended to limit application of section 3294 to employees who in fact exercise substantial authority over decisions that ultimately determine corporate policy.])

Defendants argue that Plaintiff cannot show that Defendant employees complained of are officers, directors, or managing agents. However, Defendants have not proffered evidence that Plaintiff does not have and cannot reasonably obtain this evidence (i.e. by Plaintiff’s admission or factually devoid discovery response) or affirmative evidence of the actual roles of these individuals. Additionally, malicious, fraudulent or despicable conduct by the officer, director or managing agent himself or herself is only one way to hold a corporation liable for punitive damages, and so to be entitled to summary adjudication Defendants must also negate the other prongs under Civil Code § 3294(b), i.e. advance knowledge and ratification. See, e.g. Pearl v. Shore (1971) 17 Cal.App.3d 608, 613 (defendant moving for summary judgment has the burden of negating every alternative theory of liability presented by the pleadings).
Plaintiff cites to the case of Davis v. Kiewit Pacific Co. (2013) 220 Cal.App.4th 358, in which the Court found issues of material fact existed as to whether the employer's project manager and equal employment opportunity officer were managing agents, such that summary adjudication of the punitive damages claim against the employer was properly denied. The Court finds the same principles there operate here to bar summary adjudication. It is interesting that Defendants argue that Davis is factually distinguishable. The need for a determination of what the facts are, or are not, is precisely the reason the motion must be denied as to the punitive damages claim. 
As to whether the conduct rises to the level of malice, fraud, or oppression required under the statute is likewise a question of fact for the jury and cannot be resolved by the Court as a matter of law on the record before it.
Accordingly, summary adjudication on the issue of punitive damages is denied.
Defendants’ counsel shall submit a written order to the Court consistent with this tentative ruling and in compliance with Rule 3.1312.
 
           
6&7.    SCV-267521, The Design Build Company, LLC v. De Arkos
 
Appearances required.  No reply brief to either the demurrer or motion to strike have been filed.  The Court is hesitant to issue a tentative ruling in the event it does not have before it all the briefing. 
 
 
8.         SCV-267938, Brennan v. Skvaril. M.D.
 
Plaintiff’s counsel’s unopposed motion to be relieved as counsel is GRANTED. Counsel has represented that there has been a breakdown in communication with Plaintiff such that he can no longer effectively represent her. Furthermore, this matter is at an early state of the proceedings and the next hearing date is set in September of 2022, providing Ms. Brennan with sufficient time to obtain new counsel if she would like.
Counsel is ordered to submit an updated proposed order which includes Ms. Brennan’s last known address in Paragraph 6 (it is currently omitted from the proposed order filed with the Court) and which includes the correct date of the next scheduled hearing in this action (it currently lists 5/10/22 as the next hearing date). If counsel provides such an updated proposed order prior to or at the hearing, and it is acceptable to the Court, the Court will sign the order.
 
 
9.         SCV-269513, Castro v. Meacham, III
 
Defendants’ motion to compel further response to Request for Production of Documents, Set One; Request for Special Interrogatories, Set One; Request for Admission, Set One; and Form Interrogatories (General and Employment), Set One is GRANTED in its entirety. The request for sanctions is GRANTED in the amount of $2,740. Plaintiff is ordered to supplement her responses to Defendants’ discovery requests in good faith and without further objections within 30 days of notice of entry of the order on this motion. Plaintiff is ordered to pay the sanctions amount within 90 days of service of entry of this order. Defendants’ counsel shall submit and order consistent with this tentative ruling and incompliance with Rule 3.1312.
 
Analysis:
 
I.                    Form Interrogatories – General (Set One) “FROG”
 
a.       FROG 2.5
 
Plaintiff objects to this interrogatory on the basis of relevance. However, the information sought by this interrogatory is relevant for the purposes investigating employment history, identifying potential witnesses, and for service purposes. Accordingly, Plaintiff is ordered to supplement her response to this item.
 
b.      FROG 2.12 & FROG 2.13
 
Plaintiff objects to these interrogatories on the basis that they are vague or ambiguous, that the term “INCIDENT” is speculative and the interrogatories are compound and/or disjunctive. Plaintiff further objects on the basis of confidentiality and privacy rights, as well as relevance.
 
The Court does not find the interrogatories to be vague, ambiguous, compound or disjunctive. Furthermore, the term “INCIDENT” is defined in section 4(a)(1) on page 1 of the form interrogatory. The definition of the term is clear and not speculative. Furthermore, the information sought by these interrogatories is relevant to the action. Plaintiff has not provided sufficient factual information to evaluate her assertion of privacy and confidentiality and does not explain further in her opposing papers. Rather, Plaintiff has not provided sufficient justification for these objections, therefore Plaintiff is ordered to supplement her response to this interrogatory.
 
c.       FROG 50.1 & FROG 50.2
 
Plaintiff objects to these interrogatories identically to how she has responded to the remainder of the items in dispute. The Court’s analysis of the objections provided for these interrogatories is explained below. Plaintiff is ordered to supplement her responses to these interrogatories.
 
II.                 ALL Other Items in Dispute
 
There are several other items in dispute regarding Plaintiff’s responses to the Request for Form Interrogatories-Employment, Request for Special Interrogatories, Request for Admissions, and Request for Production of Documents. Since Plaintiff’s objections to each and every one is identical, and since the Court’s analysis regarding each item is identical, the Court responds to them jointly as follows.
 
Plaintiff’s objections to each of the remaining items in dispute are as follows:
 
Plaintiff objects to both these interrogatories on the same grounds, and
each of them, as follows:
a) Plaintiff objects that this request seeks information protected by the attorney-client privilege and work product doctrine;
b) Plaintiff objects to this interrogatory on the grounds that it seeks information in the possession of, known to, or otherwise equally available to the defendant;
c) Plaintiff’s facts are stated in its Complaint;
d) Plaintiff objects to this interrogatory because the only possible purpose of this request is to harass and to cause hardship to the plaintiff and needlessly increase the cost of litigation to the plaintiff;
e) It is not the job of Plaintiff to make Defendants’ arguments for them in support of their affirmative defenses.
 
These objections do not have merit. First, regarding the objection on the basis of the attorney-client privilege, at all times prior to and at the time of propounding these answers to Defendants’ discovery requests, Plaintiff was representing herself. Since Plaintiff was not represented by an attorney, there is no basis by which Plaintiff may assert the attorney-client privilege. Furthermore, in order to assert this privilege, Plaintiff is required to provide “sufficient factual information for the other parties to evaluate the merits of that claim.” (CCP § 2031.240.) Plaintiff has not provided any factual information to support this asserted privilege.
 
Second, regarding the objection on the basis that the information is “in the possession of, known to, or otherwise available to the defendant,” a party may not object to an interrogatory on the basis that the information is equally available to the requesting party if the responding party has personal knowledge of the information sought. Only where the responding party does not have personal knowledge sufficient to respond to the interrogatory may she object on this basis. Even then, the responding party must first make a “reasonable and good faith effort to obtain the information” before objecting on this basis. (CCP § 2030.220.) Such an objection is not a legally valid objection to a request for production of documents. This objection is also invalid in regard to a request for admission because it is a request for the responding party to admit or deny specific assertions. Admissions and denials cannot in any circumstance be equally available to the requesting party. Plaintiff does not assert that she does not have personal knowledge of the information requested, but rather that it is not her job to make Defendants’ arguments for them. This is insufficient.
 
Further, the statement “Plaintiff’s facts are stated in its Complaint” is not a valid objection. There is also nothing to suggest that Defendants’ discovery requests were made with an intent to harass Plaintiff or increase the cost of litigation (it is further noted here that Plaintiff represents herself, thus it is unclear what costs of litigation are being referred to regarding responding to discovery).
 
Plaintiff opposes the motion arguing that it should be denied because Defendants have not provided sufficient answers to her discovery requests. Even if this is true, this is not a basis for denying the defendants’ motion. It is also not sufficient reason for Plaintiff to refuse to comply with Defendants’ discovery requests. Plaintiff has the option of bringing her own motion to compel further response if she feels Defendants’ responses were inadequate, so long as the motion is timely made. Otherwise, Plaintiff has an obligation to respond to discovery requests in good faith.
 
Each of the items requested by Defendants are relevant to the case and Plaintiff has not provided sufficient justification for her objections. Accordingly, the motion to compel is GRANTED.
 
III.              Sanctions
 
Defendants request monetary sanctions in the amount of $2,740 be imposed on Plaintiff. This figure is based on Counsel Aqui’s representation that she spent 6.7 hours on this motion at a rate of $400 per hour and that the filing fee was $60. The Court grants the request for monetary sanctions in the amount requested.  
 
 
 
*This is the end of the Tentative Rulings*
 

 

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