1.  MCV-218091; Capital One Bank v. Gutierrez:

            Plaintiff’s Motion to file a First Amended Complaint is GRANTED.

2. MCV-219045; Security Credit Services v. Bautista:

            IF Plaintiff files a declaration as ordered by the Court in the Notice of Informal Conference and Sanctions, Plaintiff’s Motion to Deem Matters Admitted is GRANTED.  If Plaintiff files the declaration as ordered, Plaintiff’s request for sanctions is also GRANTED in the amount of $340.

Alternatively, if Plaintiff fails to file a declaration as ordered, this motion is continued until June 19, 2012 so that Plaintiff may comply with the Court’s Notice of Informal Conference and Sanctions by attempting to meet and confer with Defendant about this motion and filing a declaration documenting the meet and confer efforts,


3.  MCV-219211; Williams v. Miller:          
              This is a breach of contract action arising from the Defendant’s alleged failure to pay rent on a lease. Defendant allegedly owes $14,700 to the Plaintiff.

On March 6, 2012, the Plaintiff served Requests for Admission, Special and Form Interrogatories and Requests for the Production of Documents on the Defendant.  The Defendant failed to respond, even after a meet and confer letter was sent. On April 26, 2012, Plaintiff filed the instant motions and later applied for and was granted an order shortening time in which the instant motions may be heard.

Plaintiff's Motions to Compel, Deem Request for Admissions Admitted and Request for Sanctions are GRANTED.  Discovery sanctions are ordered in the amount of $500.00.

Defendant is to serve verified answers to Defendant's Form and Special Interrogatories and responses to Requests for Production, all without objections, within ten days from the date of this order.

 

4. SCV-249116; McEnroe v. AT&T Mobility:

This is a suit in which Plaintiff Sara McEnroe (McEnroe) alleges that her former employer, Defendant AT&T Mobility (ATT) unlawfully failed to accommodate her disability.  Further, McEnroe contends that ATT failed to stop/prevent an assistant manager, Defendant Farooq Syed (Syed), from sexually harassing her and creating a hostile workplace.  McEnroe has also sued Syed individually for actions she contends created a hostile workplace.

ATT and Syed have now filed separate motions for summary judgment and adjudication.  While separately presented, the motions rest on similar grounds.  First, both parties argue that McEnroe’s claims are barred by the applicable statutes of limitation.  Further, both Syed and ATT contend that the alleged sexual harassment does not rise to a level to impose liability.  Further, ATT argues that McEnroe’s claim of disability discrimination fails.  ATT argues that McEnroe abandoned her job after her return. 

McEnroe has opposed both motions.  McEnroe argues that her claims are not barred by the statute of limitations due to equitable tolling.  McEnroe argues that the statute was tolled while she processed her union grievance against ATT.  On the merits, McEnroe argues that the statements and actions of Syed are sufficient to impose liability and that ATT, in fact, did not accommodate her disability that was brought on by Syed’s behavior.

ATT has interposed 69 separate objections to the evidence.  The court will rule on the objections as follows.  The Court sustains objections: 4, 9, 10, 12, 14-18, 21, 22, 34, 37-40, 43, 47-49, 51, 63.  All other objections are overruled.

Statute of Limitations

ATT and Syed argue that McEnroe’s claims are barred by the one-year statute of limitations. GC § 12965(b) provides that a cause of action brought pursuant to the Fair Employment Housing Act [FEHA] must be filed within one year following the issuance of a right-to-sue notice from the Department of Fair Employment and Housing [DFEH.]  Here, it is undisputed that McEnroe applied for and received her right-to-sue letter from DFEH on April 14, 2009.  ATT’s Separate Statement of Facts [SSF] Nos. 46-47.  It is further undisputed that McEnroe did not file the instant lawsuit until February 8, 2011.  Both ATT and Syed contend that McEnroe’s claims are untimely and she is now barred from raising them.

McEnroe argues in opposition that her claims are timely based on equitable tolling. Citing McDonald v. Antelope Valley Community College Dist. (2008) 45 Cal.4^th 88, 100 [McDonald].  Basically, McDonald stands for the proposition that the statute of limitation contained in GC § 12965(b)  is “equitably tolled while the employee and employer pursue resolution of any grievance through an internal administrative procedure.” McDonald, supra, 45 Cal.4^th at 108.   Defendants argue that the grievance process ended in May of 2009, thus McEnroe waited too long to bring the instant lawsuit.

In assessing whether a statute of limitations will be equitably tolled in a particular situation the courts examine the presence or absence of three factors: “(1) timely notice to defendants in filing the first claim; (2) lack of prejudice to defendants in gathering evidence to defend against the second claim; and (3) good faith and reasonable conduct by plaintiffs in filing the second claim.”  Downs v. Department of Water & Power (1997) 58 Cal.App.4th 1093, 1100.

Here, the rule set out in McDonald that claims are “equitably tolled while the employee and employer pursue resolution of any grievance through an internal administrative procedure[]” applies with respect to the claims made against ATT.  McDonald, supra, 45 Cal.4th at 108.  ATT’s position that equitable tolling does not apply to grievances made under a collective bargaining agreement would cut against the rational stated by the California Supreme Court.  Moreover, the case cited by the Defendants dealt with a Title VII allegation, not the FEHA. 

Defendant Syed’s circumstance presents a much more difficult determination of the applicability of the statute of limitations.  McEnroe has the right to sue Syed individually for the alleged sexual harassment, imposing personal liability In McDonald, the only named defendant was the employer and not the employee who was accused of carrying out the illegal discrimination. McDonald, supra.  Through the grievance process, McEnroe complained of Syed’s actions.  Further, McEnroe filed a grievance with respect to her eventual termination by ATT.  It is without dispute that any remedy that McEnroe might have had with respect to her grievances would have been against ATT, and ATT alone.  There is no evidence submitted by either side that McEnroe could have received damages from Syed, or any remedy against Syed for his alleged behavior, via the grievance process.  The basic rational, however, behind equitable tolling, is to serve “the need for harmony and the avoidance of chaos in the administration of justice.” Olson v. County of Sacramento (1974) 38 Cal.App.3d 958, 965.  Further, “[t]olling eases the pressure on parties “concurrently to seek redress in two separate forums with the attendant danger of conflicting decisions on the same issue.”  Ibid.; see also Elkins v. Derby, supra, 12 Cal.3d at 419–420; Collier v. City of Pasadena, supra, 142 Cal.App.3d at 926.

Requiring McEnroe to file suit against Syed in the midst of pursuing an internal remedy with ATT would create more chaos.  Further, such an action would likely have a negative impact on any outcome on the internal procedure. Applying equitable tolling here to Syed would allow the grievance procedure to continue without the necessity of a lawsuit—promoting judicial economy.  As a result, the rationale behind equitable tolling dictates that the claims against Syed are also subject to the same equitable tolling analysis, as those that would apply to ATT. 

            The undisputed evidence indicates that McEnroe was informed by her Union on May 27, 2010 that it had “completed all the steps at my level per the contract.” ATT SSF No. 38. The Union then wrote McEnroe: “I would let your attorney know that our grievance process has been completed.” Id.

ATT has submitted evidence that once the grievance was not escalated at the local level it “times out” and is deemed waived. The Collective Bargaining Agreement [CBA] specifically provides for an appeal from a Step 2 grievance must be appealed within 15 workdays. ATT SSF No. 29.   The It is undisputed fact that the Union failed to escalate McEnroe’s grievance beyond step two. ATT SSF No. 37. Further, the CBA provides that arbitration is only available where a grievance has been processed “through all steps of the formal grievance procedure…” CBA Art. 8, § 1 Attached as Exhbt. 2 to the McEnroe Depo.  It is undisputed that McEnroe’s grievances were not processed through all three of the steps, thus they were contractually ineligible for arbitration.  The question boils down to whether it was reasonable for McEnroe to wait from May 27, 2010 until February 11, 2011 to file suit after being on notice that her grievance process had concluded.

It is unreasonable that McEnroe would sit on her rights and wait so long before filing the instant lawsuit—especially in light of the fact that the original DFEH complaints were over a year old at that time.  Further, it is not reasonable for McEnroe to wait for arbitration of these claims because they were not subject to arbitration. Waiting nearly another year to file the lawsuit is not reasonable conduct in filing the second claim.  Downs v. Department of Water & Power (1997) 58 Cal.App.4th 1093, 1100 (stressing the importance of filing shortly after the tolling period ends).

Accordingly, Defendants’ motions for judgment are GRANTED as McEnroe’s claims are untimely as a matter of law.

 

5. SCV-250225; Alvarez v. Meridias Capital:

            Defendant Meridias Capital, Inc.’s motion for an order allowing Joshua D. Chandler to appear as counsel pro hac vice is GRANTED conditioned upon his payment of applicable fee to the State Bar of California pursuant to CRC, Rule 9.40(e). Defendant’s counsel shall draft an order for this court’s signature.

           

6. SCV-250574; Redwood Trust Deed Services v. Mezzacapa:
            Plaintiff Redwood Trust Deed Services, Inc.’s motion for an order of discharge and an award of attorney fees and costs is GRANTED. Plaintiff Redwood Trust Deed Services, Inc. shall be discharged from this litigation and from liability to any of the claimants. Reasonable attorney fees shall be awarded in the amount of $5,557.50 and costs in the amount of $453.85.

 

7.  SCV-251268; Hedtke v. United Services Automobile:

            On March 2, 2012, USAA (the Defendant) filed a petition to bring a motion to compel discovery responses (the Petitioner) against Sean Hedtke (the Plaintiff).   The Petition was served on the Plaintiff on February 28, 2012.  On March 2, 2012, the Defendant filed a motion to compel responses to form and special interrogatories, demand for production of documents (the Motion). See Insurance Code § 11580.2(f). The Plaintiff has not opposed.

Here, USAA has established that it served on the Plaintiff Form Interrogatories, Special Interrogatories, and Demand for Production.  Dec. Lucky ¶ 2.  The time for responding has expired, and to date, USAA has not received a response.  Dec. Lucky ¶ 2. 

There being no opposition, and USAA having established a right to responses, the Motion is GRANTED in its entirety, and the Plaintiff is directed to serve responses, without objections, on USAA within 20 days of service of this order. 

 

8. SCV-251308; Phillips v. Meeker:

            Defendant Charles Meeker’s motion to quash service of summons is MOOT. Subsequent to the filing of this motion, plaintiffs filed proof that they personally served defendant with the Summons and Complaint on May 2, 2012.

 

9. SCV-251396; Curtis v. Bartz:
              Plaintiffs’ motion for a preliminary injunction is GRANTED.  Defendants, as well as their employees, agents, or anyone acting on their behalf, are prohibited from selling, transferring the ownership of, encumbering, moving, hiding, transporting, destroying or injuring any of the personal property in which Ps have a secured interest pursuant to the terms of the 2004 Deed of Trust.

A preliminary injunction is an equitable remedy. In this case, a preliminary injunction will maintain the status quo by protecting the Plaintiff’s security; the preliminary injunction will also maintain the status quo by not interfering in any way with the operation of Defendants’ business. Plaintiffs are to draft a proposed order with these goals in mind. This order should identify, with as much specificity as possible, the personal property in which Plaintiffs claim a security interest.

The preliminary injunction will not cause any harm to Defendants. However, pursuant to CCP §529 Plaintiffs shall post a bond that is sufficient to cover attorneys’ fees for Defendants if they should successfully appeal or move to reconsider this ruling granting the preliminary injunction, or if Defendants prevail on the breach of contract cause of action which is the basis for this order granting the preliminary injunction. Therefore, Plaintiffs are ordered to post a bond in the amount of $10,000.

Defendants’ evidentiary objections are sustained in part and overruled in part.  Specifically, Objection #1 is sustained; Objection #2 is sustained in part and overruled in part (i.e., overruled with regard to the statement that Plaintiffs have a security interest in some of Defendant’s acquisitions after the Deed of Trust was signed in 2004; sustained with regard to everything else); and Objection #3 is sustained in part and overruled in part (i.e., overruled with regard to the first sentence and the last two sentences; sustained with regard to everything else).

Plaintiffs’ evidentiary objections are sustained in part and overruled in part. Specifically, Objection No. 1 is sustained. The alleged claims of Sterling Savings Bank, and Mr. Bartz’s statements repeating the claims, are hearsay and appear to be offered for the truth of what is stated. Objection #2 is overruled. Defendants’ claim that they overpaid Plaintiffs by $300,000 is not irrelevant or unduly prejudicial.