This case was last updated from Los Angeles County Superior Courts on 01/18/2017 at 22:08:54 (UTC).

ALICIA M. TRIPI VS. MAKE UP ARTISTS & HAIR STYLIST GUILD

Case Summary

On 03/25/2014 ALICIA M TRIPI filed a Labor - Other Labor lawsuit against MAKE UP ARTISTS HAIR STYLIST GUILD. This case was filed in Los Angeles County Superior Courts, Glendale Courthouse located in Los Angeles, California. The Judges overseeing this case are RALPH C. HOFER and JOHN P. DOYLE. The case status is Pending - Other Pending.

Case Details Parties Dockets

 

Case Details

  • Case Number:

    ****2256

  • Filing Date:

    03/25/2014

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Labor - Other Labor

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

RALPH C. HOFER

JOHN P. DOYLE

 

Party Details

Plaintiff

TRIPI ALICIA M.

Defendants

BLAKE MICHAEL

CATMULL HAZEL

ENGELMAN LEONARD

GERMAIN MICHAEL

JACKSON JOHN E.

MAKE-UP ARTISTS & HAIR STYLIST GUILD

MILARS LYDIA

RIZZO JOHN

Attorney/Law Firm Details

Plaintiff Attorney

LAW OFFICE OF MICHAEL J. PONCE

Defendant Attorney

REICH ADELL & CROST

Court Documents

Court documents are not available for this case.

 

Docket Entries

  • 11/23/2016
  • Notice of Ruling (RE EX PARTE APPL FOR EXTENSION OF TIME; PROOF OF SERVICE ) Filed by Attorney for Defendant

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  • 11/18/2016
  • Motion to Set Aside (DENIAL RULING OF PLTF'S EX PARTE APPL FOR EXTENSION OF TIME TO FILE OPPOSITION BRIEF AND PROOF OF SERVICE ) Filed by Plaintiff, & Plaintiff in Pro Per

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  • 11/18/2016
  • Proof of Service Filed by Attorney for Defendant

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  • 11/18/2016
  • Declaration (OF AARON G. LAWRENCE IN OPPOSITION TO PLTF'S EX PARTE APPLICATION TO CONTINUE ) Filed by Attorney for Defendant

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  • 11/17/2016
  • Declaration (OF LAURENCE ZAKSON IN OPPOSITION TO PLTF'S EX PARTE APPLICATION TO CONTINUE ) Filed by Attorney for Defendant

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  • 11/16/2016
  • ExParte Application (FOR EXTENSION OF TIME TO SERVE PLEADING AND ORDER EXTENDING TIME TO SERVICE; SET ON 11/18/16 ) Filed by Plaintiff, & Plaintiff in Pro Per

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  • 11/10/2016
  • Reply (IN SUPPORT OF-NOTICE OF PLTF'S NON OPPOSITION TO-MOTION TO STRIKE AND DISMISS WITH PREJUDICE BY DEFTS MAKE-UP ARTISTS & HAIR STYLISTS GUILD-IATSE LOCAL 706; PROOF OF SERVICE) Filed by Attorney for Defendant

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  • 11/10/2016
  • Declaration (OF AARON G. LAURENCE IN SUPPORT OF MOTION TO STRIKE AND DISMISS WITH PREJUDICE; PROOF OF SERVICE ) Filed by Attorney for Defendant

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  • 11/08/2016
  • Reply (IN SUPPORT OF-NOTICE OF PLT'S NON- OPPOSITION TO-CONTINUATION OF PRE- VIOUSLY FILED ANTI-SLAPP MOTION IN LIGHT OF DECISION ON APPEAR BY DEFT MAKE-UP ARTISTS & HAIR STYLISTS GUILD-IATSE LOCAL 706;POS) Filed by Attorney for Defendant

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  • 11/08/2016
  • Reply (IN SUPPORT OF-AND NOTICE OF PLTF'S NON-OPPOSITION TO-CONTINUATION OF PREVIOUSLY FILED ANTI-SLAPP MOTION IN LIGHT OF DECISION ON APPEAL BY DEFTS LYDIA MILARS; MICHAEL GERMAIN; JOHN RIZZO; JOHN E.....) Filed by Attorney for Defendant

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71 More Docket Entries
  • 07/29/2014
  • Declaration (OF MICHAEL BLAKE IN SUPPORT OF SPECIAL MOTION TO STRIKE FIRST AMENDED COMPLAINT ) Filed by Attorney for Defendant

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  • 07/22/2014
  • Joinder (IN DEMURRER AND MOTION TO STRIKE FIRST AMENDED COMPLAINT ) Filed by Attorney for Defendant

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  • 07/22/2014
  • Proof-Service/Summons Filed by Attorney for Plaintiff

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  • 07/02/2014
  • Request for Judicial Notice (IN SUPPORT OF DEMURRER ) Filed by Attorney for Defendant

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  • 07/02/2014
  • Demurrer (TO FIRST AMENDED COMPLAINT SET ON 9/05/14 ) Filed by Attorney for Defendant

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  • 07/02/2014
  • Motion to Strike (DISPARATE IMPACT CLAIM FROM FIRST AMENDED COMPLAINT; MEMO OF POINTS AND AUTHORITIES IN SUPPORT SET ON 9/05/14 ) Filed by Attorney for Defendant

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  • 06/05/2014
  • Proof of Service Filed by Attorney for Plaintiff

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  • 05/30/2014
  • First Amended Complaint Filed by Attorney for Plaintiff

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  • 05/30/2014
  • Summons Filed Filed by Attorney for Plaintiff

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  • 03/25/2014
  • Complaint filed-Summons Issued Filed by Attorney for Plaintiff

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Tentative Rulings

Case Number: EC062256    Hearing Date: April 30, 2021    Dept: D

TENTATIVE RULING
Calendar: 13Date: 4/30/2021 
Case Number: EC062256 Trial date: None Set
Case Name: Tripi v. Make-Up Artists & Hair Stylists Guild—IATSE Local 706, et al.
MOTION FOR SUMMARY JUDGMENT
(OR, in the Alternative, Summary Adjudication)
MOTION TO DEEM VEXATIOUS LITIGANT
Moving Party: Defendant Make-Up Artists & Hair Stylists Guild—IATSE Local 706
Responding Party: Plaintiff Alicia M. Tripi   
Relief Requested: 
Summary judgment in favor of defendant Make-Up Artists & Hair Stylists Guild—IATSE Local 706.  In the alternative, summary adjudication of one or more causes of action or claims for damages.
Order deeming plaintiff Alicia M. Tripi a vexatious litigant.    
Causes of Action from First Amended Complaint 
1) Retaliation for Filing Discriminatory Complaint in Violation of Government Code section 12940(H)
2) Age Discrimination 
3) National Origin Discrimination*
4) Sex Discrimination*
5) Failure to Prevent Discrimination and Harassment
6) Aiding, Abetting, and Inciting Harassment* 
7) Failure to Maintain and Preserve Records and Files*
*Cause of Action Stricken from Pleading by order dated 2/17/17
SUMMARY OF COMPLAINT:
Plaintiff Alicia Tripi brings this action against her labor union, defendant the Make-Up Artists & Hair Stylists Guild IATSE Local 706 (the “Union”), and several individual defendants alleged to have been members of its Executive Board, officers, or otherwise affiliated, alleging that she is a 61-year-old woman of Hispanic national origin, and has filed several complaints with the United States Employment Opportunity Commission alleging discrimination and retaliation against the Union.  Plaintiff alleges that due to the conduct of defendants she has not been rehired for jobs for which she had originally been hired, has been the subject of defamatory, discriminatory and retaliatory statements made by the Union, defendants and various members, and has been blacklisted by the Union, so has not received job referrals from the Union.   
It is also alleged that the Union’s Availability List policies, in effect requiring the dispatcher to fill assignments first from a “Trainee” list, then from a “Key” list and finally from a “Department Head” list, is discriminatory as it disproportionately impacts older Union members such as plaintiff. 
Plaintiff also alleges that she has been subject to disparate treatment due to her national origin, as she is being black-listed by the Union even though her dues were all paid, while another white member who was delinquent on her dues was being approved for additional double dipping work by the Union Assistant Business Representative, who has a history of incidents of discrimination against Hispanic women.
The Union and the individual defendants filed special motions to strike in response to the complaint, which were originally heard on September 26, 2014.  The court, Judge Doyle presiding, denied the motion and joinder/motion as follows:
“Defendants’ Special Motion to Strike and Joinder are DENIED.  The moving papers fail to establish that the subject claims arise out of protected activity, that is, it has not been established that the gravamen of the claims involves statements made in connection with an issue of public interest.”
Defendants appealed the ruling.  The unpublished court of appeal decision was filed on June 14, 2016.   The court of appeal reversed the trial court order in part and remanded as follows:
“The trial court’s order is reversed insofar as it pertains to the first and sixth causes of action.  As to the fifth cause of action, the trial court’s order is reversed insofar as the fifth cause of action derives from the first and sixth causes of action, and is affirmed insofar as the fifth cause of action derives from the second, third, and fourth causes of action.  The matter is remanded for further proceedings in accordance with the opinions expressed herein.” 
[Court of Appeal Decision, p. 34]. 
The Court of Appeal’s Decision, Disposition, also provides, “Appellants Milars, Germain, Rizzo, Jackson, Blake, Catmill, and Engelman are awarded costs.”  
Specifically, the court of appeal found that the following communications constitute conduct or communication in connection with a public issue or an issue of public interest, which support the claims for retaliation (first cause of action against Union), aiding and abetting retaliation (sixth cause of action against individual defendants), and to the extent relied upon, the claim for failure to prevent discrimination and harassment (fifth cause of action against Union):
1. Defendant Blake’s statements made on the Facebook forum (concerning proposed CBA)
2. Statements made at the November 21, 2010 general membership meeting (considering Executive Board’s findings on allegations that two of high-ranking leaders had breached their fiduciary duties, including credibility of Tripi, relevant to the accuracy of her accusations).
3. Affidavit of Charges filed by Milars and Germaine and processed by Jackson, and Rizzo’s comments (at May 22, 2011 meeting) related to Tripi’s alleged refusal to answer questions (intertwined with Union’s investigation of Tripi’s accusations against Union leadership)
[Court of Appeal Decision, p. 13-20]. 
The motions were then scheduled by the trial court for hearing to address the second prong of the anti-SLAPP analysis in connection with the first and fifth causes of action brought against the Union, and the sixth cause of action as brought against the individual defendants. 
The court permitted the filing of supplemental papers.   Plaintiff did not timely file or serve supplemental papers.  
The matters were originally set to be heard on November 18, 2016.  
On November 16, 2016, plaintiff gave notice to counsel for defendants that she intended to appear ex parte for an extension of time to file an opposition brief.   On November 17, 2016, counsel for defendants appeared in court, but plaintiff did not appear, and the ex parte application was not filed, so the court placed the matter off-calendar.  
On November 18, 2016, plaintiff appeared at the hearing and requested a continuance, which the court granted, and continued the matters to 2/10/17, and ordered that plaintiff’s oppositions were to be served and filed by January 20, 2017.   The matters were then continued to February 17, 2017.  No further oppositions were served or filed by plaintiff.   Defendants filed sur-replies indicating that no further papers had been served by plaintiff.     
On February 17, 2017, plaintiff and defendants appeared at the hearing, and the court published its detailed tentative.   The special motion to strike (SLAPP suit) brought by the individual defendants was granted, the court finding that plaintiff had failed to establish a probability of success on the second prong of the anti-SLAPP statute by demonstrating by admissible evidence that plaintiff could overcome the defense of immunity of the individuals to individual liability, and, as to all defendants other than defendant Leonard Engelman, the defense that plaintiff had failed to exhaust the union’s internal remedies prior to resorting to this civil action. 
On April 17, 2017, plaintiff Tripi, in pro per, filed a Notice of Appeal of the June 1, 2016 decision by the court of appeal, and also of the February 17, 2017 rulings.
On July 14, 2017, the court heard a motion by the individual defendants for attorneys’ fees as the prevailing parties on the special motion to strike.  Tripi did not file an opposition to the fee motion, but one day before the hearing filed an ex parte application to stay all proceedings relating to the attorney fees and costs. The court denied the ex parte application, and awarded $280,327.35 in attorneys’ fees and costs to the individual defendants pursuant to CCP § 425.16. 
On September 12, 2017, Tripi filed another notice of appeal, again specifying the June 14, 2016 decision in the first appeal as well as the July 14, 2017 ruling on the motion for attorneys’ fees. 
The appeals were consolidated, and on May 9, 2019, the court of appeal filed its unpublished opinion, dismissing the appeals from the original court of appeal decision, as that appellate decision was not a judgment that would be reviewable by the court of appeal, and such an appeal would also be untimely.  
The court of appeal also found that no cognizable issue had been raised with respect to the February 17, 2017 ruling on the anti-SLAPP motion or the July 14, 2017 ruling on the motion for attorneys’ fees.  The trial court orders were affirmed, and the Disposition states:
“Respondents shall recover their costs on appeal. Further, as requested, respondents shall recover reasonable attorney fees incurred in defending the appeal, in an amount to be determined by the trial court. (§425.16, subd. (c)(1); GeneThera, Inc. v. Troy & Gould Professional Corp. (2009) 171 Cal.App.4th 901, 910-911.)”
[Court of Appeal Decision II, p. 7].  
On July 30, 2019, the remittitur was filed with this court. 
On October 4, 2019, the court heard a motion by the individual defendants for their attorney fees on appeal, which was granted, the court awarding $79,678.10.      
On November 1, 2019, the court heard a motion by the individual defendants for the entry of an order dismissing as moot the cross-complaint filed by the individuals against Tripi as a cross-defendant, and four discovery motions brought by the Union defendant.  
The unopposed motions were granted.  The court ordered the cross-complaint voluntarily dismissed by the moving parties with/without prejudice, as per cross-complainants’ specification of dismissal as with or without prejudice.  
The discovery motions were granted, and Requests for Admissions Deemed admitted, and responses without objection ordered to be served by plaintiff to two sets of form interrogatories, and to Requests for 
Production (Set One) within ten days.   Monetary sanctions for each of four motions were awarded against plaintiff in the amount of $1,350, payable within thirty days. 
On January 31, 2020, the court heard unopposed motions for further discovery sanctions regarding the subject discovery, which were granted, and the court issued issue and evidence sanctions, along with further monetary sanctions. 
On March 13, 2020, the court heard unopposed motions for issue, evidence and terminating sanctions and to amend the December 20, 2019 judgment to appropriately name the judgment creditors.  
The motions were granted.  The judgment was amended as requested and in connection with the discovery motions the court ordered Requests for Admissions deemed admitted, and entered orders imposing issue and evidence sanctions, prohibiting the introduction of evidence which should have been produced by plaintiff in response to the subject discovery.  Further monetary sanctions were also awarded against plaintiff. 
On March 30, 2020, plaintiff filed a Notice of Filing of Notice of Appeal with the court, indicating that an appeal had been filed on March 11, 2020.  
On April 1, 2020, defendant filed the pending motion for summary judgment, which has been continued while plaintiff pursued various appeals.   
On November 12, 2020, the trial court received the Remittitur on appeal B305160, filed March 11, 2020.   The court of appeal granted a motion to dismiss the appeal, finding that the orders appealed from were not appealable orders.  Plaintiff had appealed a notice of ruling of January 21, 2020 indicating the court had denied an ex parte application to continue a hearing on discovery motions, and was deferring ruling on whether the matter would be tried to the court or a jury.  Plaintiff also specified a January 31, 2020 order, on which date the court had entered three separate orders directing plaintiff to pay monetary sanctions for discovery abuse, which the court of appeal found that, even if aggregated, fell below the $5,000 jurisdictional limit for appealability. 
Also on November 12, 2020, the trial court received the Remittitur on appeal B306004, which had been filed on May 8, 2020.  The court of appeal granted a motion to dismiss the appeal.  The court of appeal considered the appeal of various orders entered on March 13, 2020.  The court of appeal found that the three orders awarding monetary sanctions to the Union, even if aggregated, fell below the $5,000 jurisdictional limit for appealability.  The court of appeal found that the additional order entered that date, an order amending an earlier judgment obtained by seven individual defendants, related back to the original judgment entered on December 20, 2019, and the time to appeal that judgment had expired.    
On November 30, 2020, the trial court received the Remittitur on appeal B307012, which had been filed on July 30, 2020.  The court of appeal granted a motion to dismiss.  The notice of appeal specified a June 3, 2020 amended judgment, which superseded a judgment that had been entered on December 20, 2019, in favor of seven individual defendants.  The court of appeal again found that the judgment related back to the original judgment entered on December 20, 2019, and the time to appeal that judgment had expired.    
The reply indicates that all outstanding appeals have now been resolved. 
These matters were scheduled to be heard on January 29, 2021.  Plaintiff had failed to file or serve timely opposition to either of the motions scheduled to be heard that date.   The minute order from the hearing indicates that the court had issued a tentative ruling via posting on LACourt.org website.  The matters were called for hearing and argued.  The minute order states, in pertinent part:
“The Court notes that plaintiff is not represented by an attorney.
The Court having fully considered the arguments of all parties, both written and oral, as well as the evidence presented, now rules as follows:
The Court grants Plaintiff’s Ex Parte Application for Extension of Time to Serve Pleadings.” 
The matters were then continued to this date.  The minute order further states, “The Court orders that no further continuances of these motions will be allowed without leave of Court.” 
There has been no timely opposition filed by plaintiff.  
Defendant has filed timely reply papers indicating that no opposition papers have been serve and has also filed objection to any untimely evidence that may be offered in opposition to the motion for summary judgment.
ANALYSIS:
Motion for Summary Judgment/Adjudication
Procedural
No Opposition
There has been no timely opposition to the motion filed or served by plaintiff.  
CCP §437c(b)(3) sets forth the specific requirements for opposition papers, including the requirement of the filing of a separate statement of material facts.   This subdivision provides: “Failure to comply with this requirement of a separate statement may constitute a sufficient ground, in the court’s discretion, for granting the motion.”  The motion will accordingly be granted on the ground there has been no separate statement filed. 
Substantive
Under CCP § 437(o) a defendant “has met his...burden of showing that a cause of action has no merit if that 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 that cause of action.  Once the defendant... has met that burden, the burden shifts to the plaintiff... to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.”
Defendant the Union seeks to establish that plaintiff will be unable to establish her remaining causes of action in plaintiff’s First Amended Complaint, claim one for retaliation for filing an EEOC claim, claim two for disparate treatment age discrimination, and claim five for failure to prevent retaliatory and discriminatory conduct.  Defendant also seeks to establish that these claims are preempted by federal law, and under the applicable federal statute of limitations, are time-barred.   
To prove an actionable claim for retaliation, plaintiff must establish that 1) plaintiff engaged in protected activity, 2) she was then subjected to an adverse employment action, and 3) there was a causal link between the two.   Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1029. 
To establish a prima facie case of discrimination, plaintiff must provide evidence that 1) at the time of the adverse employment action she was a member of a protected category, 2) she suffered an adverse employment action, and 3) there exists some other suggestion of a discriminatory motive based on plaintiff’s membership in the protected category.  See Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354, 367
Here, the motion presents evidence that plaintiff will be unable to establish these elements, as the court has resolved through issue or evidence sanctions several critical issues which establish that plaintiff cannot establish one or more elements of each of these claims. 
Specifically, defendant the Union submits evidence establishing the following:
(1) That the asserted conduct Plaintiff has put at issue in her FAC does not violate the Fair Employment and Housing Act or any other statute, ordinance or regulation, [UMF Nos. 12, 14, and evidence cited]. 
(2) that any conduct in which Plaintiff alleges the Local Union engaged was not the proximate cause of Plaintiff’s alleged claims, [UMF No. 13, and evidence cited];
(3) that the Local Union appropriately referred Plaintiff for jobs without discrimination or retaliation and in observance of its dispatch procedures, [UMF Nos. 78-86, 88, 91-93, and evidence cited];
(4) that there is no evidence of any age-based discriminatory animus, [UMF Nos. 21, 25, 171- 184];
(5) That Plaintiff was not deprived of any job, [UMF Nos. 15-31, 37-51, 91-93, and evidence cited];
(6) That Plaintiff has not suffered any damages, [UMF Nos. 204-210, 212, 214, and evidence cited].
Defendant the Union also submits evidence to establish that plaintiff’s these claims are preempted by federal law, and under the applicable federal statute of limitations, are time-barred.  [See UMF Nos. 234-243, and evidence cited].    
This evidence is sufficient to show that plaintiff will be unable to establish one or more elements of her remaining causes of action and that complete defenses exist to those claims.  This showing shifts the burden to plaintiff to raise triable issues of material fact. 
Plaintiff has failed to oppose this motion and therefore so has failed to raise triable issues of material fact.  The motion is granted.  
Motion to Deem Vexatious Litigant
Defendant the Union seeks an order of the court finding that plaintiff is a vexatious litigant within the meaning of CCP section 391.3(b)(1) and (b)(3), an order that plaintiff may not file any litigation in propia persona without first obtaining leave of the presiding judge under CCP section 391.7, and that any filing allowed by the court be conditioned on the furnishing of security under CCP section 391.3(a). 
Defendant argues that this relief is appropriate regardless of the outcome of the motion for summary judgment, given the likelihood that plaintiff will attempt to file further appeals and pursue other proceedings against defendant.    
Under CCP § 391.7(a):
“(a) In addition to any other relief provided in this title, the court may, on its own motion or the motion of any party, enter a prefiling order which prohibits a vexatious litigant from filing any new litigation in the courts of this state in propria persona without first obtaining leave of the presiding justice or presiding judge of the court where the litigation is proposed to be filed. Disobedience of the order by a vexatious litigant may be punished as a contempt of court.”
Defendant the Union seeks to have the court declare defendant Tripi a vexatious litigant under CCP § 391 (b)(1) or (3):
“(b) "Vexatious litigant" means a person who does any of the following:…
 
(1) In the immediately preceding seven year period has commenced, prosecuted,
or maintained in propria persona at least five litigations other than in a small
claims court that have been (i) finally determined adversely to the person or
(ii) unjustifiably permitted to remain pending at least two years without having
been brought to trial or hearing.
(3)  In any litigation while acting in propria persona, repeatedly files unmeritorious motions, pleadings, or other papers, conducts unnecessary discovery, or engages in other tactics that are frivolous or solely intended to cause unnecessary delay.”  
In cases arising under the vexatious litigant's statute, the burden of establishing the statutory conditions for requiring plaintiff to furnish security is on the party moving for security.  Muller v Tanner (1969) 2 Cal.App.3d 445.   The trial court’s determination is reviewed as follows: “On appeal, we presume the order finding plaintiff a vexatious litigant is correct and imply such findings as are necessary to support it.”   Tokerud v. Capital Bank of Sacramento (1995) 38 Cal.App.4th 775, 780; see also Holcomb v. U.S. Bank Nat. Assn. (2005) 129 Cal.App.4th 1494, 1498-1499 (“We uphold the court’s ruling if it is supported by substantial evidence.”)  
“Finally determined” has been held to mean that all avenues for direct review of an action have been exhausted or the time for appeal has expired.   Childs v. PaineWebber, Inc.  (1994) 29 Cal.App.4th 982, 994.   
The Union argues that plaintiff in this matter has filed at least five unsuccessful appeals to the court of appeal, as well as two to the California Supreme Court, and that this matter overall also adds to the list given that it has not been brought to trial within two years.   
Defendant argues that the previous appeals, although all brought in this single matter, each count as a litigation for purposes of subdivision (b)(1).  CCP section 391(a), for purposes of the title pertaining to vexatious litigants, provides: “’Litigation’ means any civil action or proceeding, commenced, maintained or pending in any state or federal court.”  
Defendant relies on Garcia v. Lacey (2014) 231 Cal.App.4th 402, 406, in which the court of appeal noted, in dicta, “A litigation includes an appeal or civil writ proceeding filed in an appellate court.”   
Defendant also cites In re Marriage of Falcone & Fyke (2012) 203 Cal.App.4th 964, in which the court of appeal had issued an order to show cause why the court of appeal should not declare a self-represented party a vexatious litigant, determining that the party met the definition set forth in section 391 (b)(1), as the party had “in this court alone,” commenced, prosecuted or maintained at least five litigations which had been determined adversely to the party, listing the various appeals and petitions for writ of mandate in that same case.   In re Marriage of Falcone & Fyke, at 1005-1006.  
Defendant notes in a footnote that the California Supreme Court has determined that an appeal of an order brought by a defendant in an action does not fit within the statutory definition, but appears to have left unquestioned the general doctrine that an appeal commenced by a plaintiff would fall within the statutory definitions.    See John v. Superior Court (2016) 63 Cal.4th 91, 96-97.  It accordingly appears that the various appeals in this matter may be considered in determining that plaintiff is a vexatious litigant.  
The court of appeal appeals which defendant submits have been filed in the immediately preceding seven year period which plaintiff in pro per has pursued and have been finally determined adverse to plaintiff are:
1. California Court of Appeal Case No. B282264 (Notice of Appeal filed on 4/17/17; Ordered dismissed via opinion filed 5/9/19);
2. California Court of Appeal Case No. B285089 (Notice of Appeal filed on 9/12/17; Ordered dismissed via opinion filed 5/9/19);
3. California Court of Appeal Case No. B305160 (Notice of Appeal filed on 3/10/20; Ordered dismissed via opinion filed 8/24/20);
4. California Court of Appeal Case No. B306004 (Notice of Appeal filed on 5/13/20; Ordered dismissed via opinion filed 8/24/20);
5. California Court of Appeal Case No. B307012 (Notice of Appeal filed on 7/30/20; Ordered dismissed via opinion filed 9/29/20)
[Lawrence Decl., paras. 3(a)- (c), (e)-(g); Exs. A-F, I-N].
While defendant concedes that there is no published authority under which an appeal to the Supreme Court has been recognized as a proceeding which would constitute a separate “litigation,” for purposes of the 
statute, it would appear that the threshold of five is reached through the showing submitted based only on the court of appeal proceedings.  
There is no opposition to this motion arguing otherwise, and it appears that the court may issue an order deeming plaintiff a vexatious litigant and requiring her to obtain advance permission to file further litigation. 
The motion also seeks that the court order that plaintiff provide security in connection with any future litigation.   It is not clear that the court has the authority to do that on this motion, as CCP § 391.1 permits a defendant to move the court for an order requiring plaintiff to post a bond, and CCP § 391.7 permits the presiding justice or presiding judge who permits the filing of future litigation to make such an order:
“(b) The presiding justice or presiding judge shall permit the filing of that litigation only if it appears that the litigation has merit and has not been filed for the purposes of harassment or delay. The presiding justice or presiding judge may condition the filing of the litigation upon the furnishing of security for the benefit of the defendants as provided in Section 391.3.”
It would appear that any request for the furnishing of security in a future case would be premature, and such an order will not issue. 
RULING:
[No Opposition]
UNOPPOSED Motion for Summary Judgment, or, in the alternative, Summary Adjudication is GRANTED. 
The Court finds that plaintiff has failed to file any papers opposing this motion, and has failed to comply with the statutory requirement of filing a separate statement addressing each material fact raised in the moving papers.  The Court further finds that plaintiff has failed to file papers after being permitted a continuance of this hearing in order to do so.  Pursuant to CCP §437c(b), the motion is GRANTED. The motion is also granted on its merits, as defendant Make-Up Artists & Hair Stylists Guild—IATSE Local 706 has presented uncontroverted evidence establishing that plaintiff cannot establish one or more of the elements of her remaining causes of action against the moving defendant, and that such claims are barred by the affirmative defenses of preemption and untimeliness. [UMF Nos. 12-31, 37-51, 78-86, 88, 91-93, 234-243, and evidence cited]. This shifts the burden to plaintiff to raise triable issues, which has not been met. 
Defendant to file appropriate form of dismissal/ judgment. 
UNOPPOSED Motion of Defendant Make-Up Artists & Hair Stylists Guild—IATSE Local 706 to Deem Plaintiff Alicia M. Tripi a Vexatious Litigant is GRANTED. 
The Court finds that plaintiff Alicia M. Tripi is a vexatious litigant within the definition of CCP section  (b)(1), as in the immediately preceding seven year period plaintiff has commenced, prosecuted, or maintained in propria persona at least five litigations other than in a small claims court that have been finally determined adversely to plaintiff.  
The Court accordingly enters a prefiling order pursuant to CCP section 391.7 (a), prohibiting Alicia M. Tripi from filing any new litigation in the courts of this state in propia persona without first obtaining leave of the presiding justice or president judge of the court where the litigation is proposed to be filed.  Disobedience of this order by Alicia M. Tripi may be punished as a contempt of court.  
GIVEN THE CORONAVIRUS CRISIS, AND TO PROMOTE APPROPRIATE SOCIAL DISTANCING, UNTIL FURTHER ORDERED, DEPARTMENT D IS ENCOURAGING AUDIO OR VIDEO APPEARANCES 
Please make arrangements in advance if you wish to appear via LACourtConnect by visiting www.lacourt.org, and scheduling a remote appearance.  Please note that LACourtConnect offers an audio-only appearance option at a current cost of $15.00 and a video appearance option at a cost of $23.00.   Counsel and parties (including self-represented litigants) are encouraged not to personally appear, unless they have obtained advance permission of the Court.  Anyone who appears in person for the hearing will be required to comply with strict social distancing measures, including, but not limited to, assigned seating, capacity limitations in the courtroom, designated waiting areas, and strictly enforced spacing in line to communicate with court staff.  If no appearance is set up through LACourtConnect, or otherwise, then the Court will assume the parties are submitting on the tentative. 

Case Number: EC062256    Hearing Date: January 29, 2021    Dept: D

TENTATIVE RULING

Calendar: 17

Date: 1/29/2021

Case Number: EC062256 Trial date: None Set

Case Name: Tripi v. Make-Up Artists & Hair Stylists Guild—IATSE Local 706, et al.

MOTION FOR SUMMARY JUDGMENT

(OR, in the Alternative, Summary Adjudication)

MOTION TO DEEM VEXATIOUS LITIGANT

Moving Party: Defendant Make-Up Artists & Hair Stylists Guild—IATSE Local 706

Responding Party: Plaintiff Alicia M. Tripi

Relief Requested:

Summary judgment in favor of defendant Make-Up Artists & Hair Stylists Guild—IATSE Local 706. In the alternative, summary adjudication of one or more causes of action or claims for damages.

Order deeming plaintiff Alicia M. Tripi a vexatious litigant.

Causes of Action from First Amended Complaint

1) Retaliation for Filing Discriminatory Complaint in Violation of Government Code section 12940(H)

2) Age Discrimination

3) National Origin Discrimination*

4) Sex Discrimination*

5) Failure to Prevent Discrimination and Harassment

6) Aiding, Abetting, and Inciting Harassment*

7) Failure to Maintain and Preserve Records and Files*

*Cause of Action Stricken from Pleading by order dated 2/17/17

SUMMARY OF COMPLAINT:

Plaintiff Alicia Tripi brings this action against her labor union, defendant the Make-Up Artists & Hair Stylists Guild IATSE Local 706 (the “Union”), and several individual defendants alleged to have been members of its Executive Board, officers, or otherwise affiliated, alleging that she is a 61-year-old woman of Hispanic national origin, and has filed several complaints with the United States Employment Opportunity Commission alleging discrimination and retaliation against the Union. Plaintiff alleges that due to the conduct of defendants she has not been rehired for jobs for which she had originally been hired, has been the subject of defamatory, discriminatory and retaliatory statements made by the Union, defendants and various members, and has been blacklisted by the Union, so has not received job referrals from the Union.

It is also alleged that the Union’s Availability List policies, in effect requiring the dispatcher to fill assignments first from a “Trainee” list, then from a “Key” list and finally from a “Department Head” list, is discriminatory as it disproportionately impacts older Union members such as plaintiff.

Plaintiff also alleges that she has been subject to disparate treatment due to her national origin, as she is being black-listed by the Union even though her dues were all paid, while another white member who was delinquent on her dues was being approved for additional double dipping work by the Union Assistant Business Representative, who has a history of incidents of discrimination against Hispanic women.

The Union and the individual defendants filed special motions to strike in response to the complaint, which were originally heard on September 26, 2014. The court, Judge Doyle presiding, denied the motion and joinder/motion as follows:

“Defendants’ Special Motion to Strike and Joinder are DENIED. The moving papers fail to establish that the subject claims arise out of protected activity, that is, it has not been established that the gravamen of the claims involves statements made in connection with an issue of public interest.”

Defendants appealed the ruling. The unpublished court of appeal decision was filed on June 14, 2016. The court of appeal reversed the trial court order in part and remanded as follows:

“The trial court’s order is reversed insofar as it pertains to the first and sixth causes of action. As to the fifth cause of action, the trial court’s order is reversed insofar as the fifth cause of action derives from the first and sixth causes of action, and is affirmed insofar as the fifth cause of action derives from the second, third, and fourth causes of action. The matter is remanded for further proceedings in accordance with the opinions expressed herein.”

[Court of Appeal Decision, p. 34].

The Court of Appeal’s Decision, Disposition, also provides, “Appellants Milars, Germain, Rizzo, Jackson, Blake, Catmill, and Engelman are awarded costs.”

Specifically, the court of appeal found that the following communications constitute conduct or communication in connection with a public issue or an issue of public interest, which support the claims for retaliation (first cause of action against Union), aiding and abetting retaliation (sixth cause of action against individual defendants), and to the extent relied upon, the claim for failure to prevent discrimination and harassment (fifth cause of action against Union):

  1. Defendant Blake’s statements made on the Facebook forum (concerning proposed CBA)
  2. Statements made at the November 21, 2010 general membership meeting (considering Executive Board’s findings on allegations that two of high-ranking leaders had breached their fiduciary duties, including credibility of Tripi, relevant to the accuracy of her accusations).
  3. Affidavit of Charges filed by Milars and Germaine and processed by Jackson, and Rizzo’s comments (at May 22, 2011 meeting) related to Tripi’s alleged refusal to answer questions (intertwined with Union’s investigation of Tripi’s accusations against Union leadership)

[Court of Appeal Decision, p. 13-20].

The motions were then scheduled by the trial court for hearing to address the second prong of the anti-SLAPP analysis in connection with the first and fifth causes of action brought against the Union, and the sixth cause of action as brought against the individual defendants.

The court permitted the filing of supplemental papers. Plaintiff did not timely file or serve supplemental papers.

The matters were originally set to be heard on November 18, 2016.

On November 16, 2016, plaintiff gave notice to counsel for defendants that she intended to appear ex parte for an extension of time to file an opposition brief. On November 17, 2016, counsel for defendants appeared in court, but plaintiff did not appear, and the ex parte application was not filed, so the court placed the matter off-calendar.

On November 18, 2016, plaintiff appeared at the hearing and requested a continuance, which the court granted, and continued the matters to 2/10/17, and ordered that plaintiff’s oppositions were to be served and filed by January 20, 2017. The matters were then continued to February 17, 2017. No further oppositions were

served or filed by plaintiff. Defendants filed sur-replies indicating that no further papers had been served by plaintiff.

On February 17, 2017, plaintiff and defendants appeared at the hearing, and the court published its detailed tentative. The special motion to strike (SLAPP suit) brought by the individual defendants was granted, the court finding that plaintiff had failed to establish a probability of success on the second prong of the anti-SLAPP statute by demonstrating by admissible evidence that plaintiff could overcome the defense of immunity of the individuals to individual liability, and, as to all defendants other than defendant Leonard Engelman, the defense that plaintiff had failed to exhaust the union’s internal remedies prior to resorting to this civil action.

On April 17, 2017, plaintiff Tripi, in pro per, filed a Notice of Appeal of the June 1, 2016 decision by the court of appeal, and also of the February 17, 2017 rulings.

On July 14, 2017, the court heard a motion by the individual defendants for attorneys’ fees as the prevailing parties on the special motion to strike. Tripi did not file an opposition to the fee motion, but one day before the hearing filed an ex parte application to stay all proceedings relating to the attorney fees and costs. The court denied the ex parte application, and awarded $280,327.35 in attorneys’ fees and costs to the individual defendants pursuant to CCP § 425.16.

On September 12, 2017, Tripi filed another notice of appeal, again specifying the June 14, 2016 decision in the first appeal as well as the July 14, 2017 ruling on the motion for attorneys’ fees.

The appeals were consolidated, and on May 9, 2019, the court of appeal filed its unpublished opinion, dismissing the appeals from the original court of appeal decision, as that appellate decision was not a judgment that would be reviewable by the court of appeal, and such an appeal would also be untimely.

The court of appeal also found that no cognizable issue had been raised with respect to the February 17, 2017 ruling on the anti-SLAPP motion or the July 14, 2017 ruling on the motion for attorneys’ fees. The trial court orders were affirmed, and the Disposition states:

“Respondents shall recover their costs on appeal. Further, as requested, respondents shall recover reasonable attorney fees incurred in defending the appeal, in an amount to be determined by the trial court. (§425.16, subd. (c)(1); GeneThera, Inc. v. Troy & Gould Professional Corp. (2009) 171 Cal.App.4th 901, 910-911.)”

[Court of Appeal Decision II, p. 7].

On July 30, 2019, the remittitur was filed with this court.

On October 4, 2019, the court heard a motion by the individual defendants for their attorney fees on appeal, which was granted, the court awarding $79,678.10.

On November 1, 2019, the court heard a motion by the individual defendants for the entry of an order dismissing as moot the cross-complaint filed by the individuals against Tripi as a cross-defendant, and four discovery motions brought by the Union defendant.

The unopposed motions were granted. The court ordered the cross-complaint voluntarily dismissed by the moving parties with/without prejudice, as per cross-complainants’ specification of dismissal as with or without prejudice.

The discovery motions were granted, and Requests for Admissions Deemed admitted, and responses without objection ordered to be served by plaintiff to two sets of form interrogatories, and to Requests for

Production (Set One) within ten days. Monetary sanctions for each of four motions were awarded against plaintiff in the amount of $1,350, payable within thirty days.

On January 31, 2020, the court heard unopposed motions for further discovery sanctions regarding the subject discovery, which were granted, and the court issued issue and evidence sanctions, along with further monetary sanctions.

On March 13, 2020, the court heard unopposed motions for issue, evidence and terminating sanctions and to amend the December 20, 2019 judgment to appropriately name the judgment creditors.

The motions were granted. The judgment was amended as requested and in connection with the discovery motions the court ordered Requests for Admissions deemed admitted, and entered orders imposing issue and evidence sanctions, prohibiting the introduction of evidence which should have been produced by plaintiff in response to the subject discovery. Further monetary sanctions were also awarded against plaintiff.

On March 30, 2020, plaintiff filed a Notice of Filing of Notice of Appeal with the court, indicating that an appeal had been filed on March 11, 2020.

On April 1, 2020, defendant filed the pending motion for summary judgment, which has been continued while plaintiff pursued various appeals.

On November 12, 2020, the trial court received the Remittitur on appeal B305160, filed March 11, 2020. The court of appeal granted a motion to dismiss the appeal, finding that the orders appealed from were not appealable orders. Plaintiff had appealed a notice of ruling of January 21, 2020 indicating the court had denied an ex parte application to continue a hearing on discovery motions, and was deferring ruling on whether the matter would be tried to the court or a jury. Plaintiff also specified a January 31, 2020 order, on which date the court had entered three separate orders directing plaintiff to pay monetary sanctions for discovery abuse, which the court of appeal found that, even if aggregated, fell below the $5,000 jurisdictional limit for appealability.

Also on November 12, 2020, the trial court received the Remittitur on appeal B306004, which had been filed on May 8, 2020. The court of appeal granted a motion to dismiss the appeal. The court of appeal considered the appeal of various orders entered on March 13, 2020. The court of appeal found that the three orders awarding monetary sanctions to the Union, even if aggregated, fell below the $5,000 jurisdictional limit for appealability. The court of appeal found that the additional order entered that date, an order amending an earlier judgment obtained by seven individual defendants, related back to the original judgment entered on December 20, 2019, and the time to appeal that judgment had expired.

On November 30, 2020, the trial court received the Remittitur on appeal B307012, which had been filed on July 30, 2020. The court of appeal granted a motion to dismiss. The notice of appeal specified a June 3, 2020 amended judgment, which superseded a judgment that had been entered on December 20, 2019, in favor of seven individual defendants. The court of appeal again found that the judgment related back to the original judgment entered on December 20, 2019, and the time to appeal that judgment had expired.

The reply indicates that all outstanding appeals have now been resolved.

Plaintiff has failed to file or serve timely opposition to either of the motions scheduled to be heard this date.

ANALYSIS:

Motion for Summary Judgment/Adjudication

Procedural

No Opposition

There has been no timely opposition to the motion filed or served by plaintiff.

CCP §437c(b)(3) sets forth the specific requirements for opposition papers, including the requirement of the filing of a separate statement of material facts. This subdivision provides: “Failure to comply with this requirement of a separate statement may constitute a sufficient ground, in the court’s discretion, for granting the motion.” The motion will accordingly be granted on the ground there has been no separate statement filed.

Substantive

Under CCP § 437(o) a defendant “has met his...burden of showing that a cause of action has no merit if that 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 that cause of action. Once the defendant... has met that burden, the burden shifts to the plaintiff... to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.”

Defendant the Union seeks to establish that plaintiff will be unable to establish her remaining causes of action in plaintiff’s First Amended Complaint, claim one for retaliation for filing an EEOC claim, claim two for disparate treatment age discrimination, and claim five for failure to prevent retaliatory and discriminatory conduct. Defendant also seeks to establish that these claims are preempted by federal law, and under the applicable federal statute of limitations, are time-barred.

To prove an actionable claim for retaliation, plaintiff must establish that 1) plaintiff engaged in protected activity, 2) she was then subjected to an adverse employment action, and 3) there was a causal link between the two. Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1029.

To establish a prima facie case of discrimination, plaintiff must provide evidence that 1) at the time of the adverse employment action she was a member of a protected category, 2) she suffered an adverse employment action, and 3) there exists some other suggestion of a discriminatory motive based on plaintiff’s membership in the protected category. See Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354, 367

Here, the motion presents evidence that plaintiff will be unable to establish these elements, as the court has resolved through issue or evidence sanctions several critical issues which establish that plaintiff cannot establish one or more elements of each of these claims.

Specifically, defendant the Union submits evidence establishing the following:

(1) That the asserted conduct Plaintiff has put at issue in her FAC does not violate the Fair Employment and Housing Act or any other statute, ordinance or regulation, [UMF Nos. 12, 14, and evidence cited].

(2) that any conduct in which Plaintiff alleges the Local Union engaged was not the proximate cause of Plaintiff’s alleged claims, [UMF No. 13, and evidence cited];

(3) that the Local Union appropriately referred Plaintiff for jobs without discrimination or retaliation and in observance of its dispatch procedures, [UMF Nos. 78-86, 88, 91-93, and evidence cited];

(4) that there is no evidence of any age-based discriminatory animus, [UMF Nos. 21, 25, 171- 184];

(5) That Plaintiff was not deprived of any job, [UMF Nos. 15-31, 37-51, 91-93, and evidence cited];

(6) That Plaintiff has not suffered any damages, [UMF Nos. 204-210, 212, 214, and evidence cited].

Defendant the Union also submits evidence to establish that plaintiff’s these claims are preempted by federal law, and under the applicable federal statute of limitations, are time-barred. [See UMF Nos. 234-243, and evidence cited].

This is sufficient to show that plaintiff will be unable to establish one or more elements of her remaining causes of action and that complete defenses exist to those claims. This shifts the burden to plaintiff to raise triable issues of material fact.

Plaintiff has failed to oppose this motion so has failed to raise triable issues of material fact. The motion therefore is granted.

Motion to Deem Vexatious Litigant

Defendant the Union seeks an order of the court finding that plaintiff is a vexatious litigant within the meaning of CCP section 391.3(b)(1) and (b)(3), an order that plaintiff may not file any litigation in propia persona without first obtaining leave of the presiding judge under CCP section 391.7, and that any filing allowed by the court be conditioned on the furnishing of security under CCP section 391.3(a).

Defendant argues that this relief is appropriate regardless of the outcome of the motion for summary judgment, given the likelihood that plaintiff will attempt to file further appeals and pursue other proceedings against defendant.

Under CCP § 391.7(a):

“(a) In addition to any other relief provided in this title, the court may, on its own motion or the motion of any party, enter a prefiling order which prohibits a vexatious litigant from filing any new litigation in the courts of this state in propria persona without first obtaining leave of the presiding justice or presiding judge of the court where the litigation is proposed to be filed. Disobedience of the order by a vexatious litigant may be punished as a contempt of court.”

Defendant the Union seeks to have the court declare defendant Tripi a vexatious litigant under CCP § 391 (b)(1) or (3):

“(b) "Vexatious litigant" means a person who does any of the following:…

(1) In the immediately preceding seven-year period has commenced, prosecuted,

or maintained in propria persona at least five litigations other than in a small

claims court that have been (i) finally determined adversely to the person or

(ii) unjustifiably permitted to remain pending at least two years without having

been brought to trial or hearing.

(3) In any litigation while acting in propria persona, repeatedly files unmeritorious motions, pleadings, or other papers, conducts unnecessary discovery, or engages in other tactics that are frivolous or solely intended to cause unnecessary delay.”

In cases arising under the vexatious litigant's statute, the burden of establishing the statutory conditions for requiring plaintiff to furnish security is on the party moving for security. Muller v Tanner (1969) 2 Cal.App.3d 445. The trial court’s determination is reviewed as follows: “On appeal, we presume the order finding plaintiff a vexatious litigant is correct and imply such findings as are necessary to support it.” Tokerud v. Capital Bank of Sacramento (1995) 38 Cal.App.4th 775, 780; see also Holcomb v. U.S. Bank Nat. Assn. (2005) 129 Cal.App.4th 1494, 1498-1499 (“We uphold the court’s ruling if it is supported by substantial evidence.”)

“Finally determined” has been held to mean that all avenues for direct review of an action have been exhausted or the time for appeal has expired. Childs v. PaineWebber, Inc. (1994) 29 Cal.App.4th 982, 994.

The Union argues that plaintiff in this matter has filed at least five unsuccessful appeals to the court of appeal, as well as two to the California Supreme Court, and that this matter overall also adds to the list given that it has not been brought to trial within two years.

Defendant argues that the previous appeals, although all brought in this single matter, each count as a litigation for purposes of subdivision (b)(1). CCP section 391(a), for purposes of the title pertaining to vexatious litigants, provides: “’Litigation’ means any civil action or proceeding, commenced, maintained or pending in any state or federal court.”

Defendant relies on Garcia v. Lacey (2014) 231 Cal.App.4th 402, 406, in which the court of appeal noted, in dicta, “A litigation includes an appeal or civil writ proceeding filed in an appellate court.”

Defendant also cites In re Marriage of Falcone & Fyke (2012) 203 Cal.App.4th 964, in which the court of appeal had issued an order to show cause why the court of appeal should not declare a self-represented party a vexatious litigant, determining that the party met the definition set forth in section 391 (b)(1), as the party had “in this court alone,” commenced, prosecuted or maintained at least five litigations which had been determined adversely to the party, listing the various appeals and petitions for writ of mandate in that same case. In re Marriage of Falcone & Fyke, at 1005-1006.

Defendant notes in a footnote that the California Supreme Court has determined that an appeal of an order brought by a defendant in an action does not fit within the statutory definition, but appears to have left unquestioned the general doctrine that an appeal commenced by a plaintiff would fall within the statutory definitions. See John v. Superior Court (2016) 63 Cal.4th 91, 96-97. It accordingly appears that the various appeals in this matter may be considered in determining that plaintiff is a vexatious litigant.

The court of appeal appeals which defendant submits have been filed in the immediately preceding seven-year period which plaintiff in pro per has pursued and have been finally determined adverse to plaintiff are:

1. California Court of Appeal Case No. B282264 (Notice of Appeal filed on 4/17/17; Ordered dismissed via opinion filed 5/9/19);

2. California Court of Appeal Case No. B285089 (Notice of Appeal filed on 9/12/17; Ordered dismissed via opinion filed 5/9/19);

3. California Court of Appeal Case No. B305160 (Notice of Appeal filed on 3/10/20; Ordered dismissed via opinion filed 8/24/20);

4. California Court of Appeal Case No. B306004 (Notice of Appeal filed on 5/13/20; Ordered dismissed via opinion filed 8/24/20);

5. California Court of Appeal Case No. B307012 (Notice of Appeal filed on 7/30/20; Ordered dismissed via opinion filed 9/29/20)

[Lawrence Decl., paras. 3(a)- (c), (e)-(g); Exs. A-F, I-N].

While defendant concedes that there is no published authority under which an appeal to the Supreme Court has been recognized as a proceeding which would constitute a separate “litigation,” for purposes of the

statute, it would appear that the threshold of five is reached through the showing submitted based only on the court of appeal proceedings.

There is no opposition to this motion arguing otherwise, and it appears that the court may issue an order deeming plaintiff a vexatious litigant and requiring her to obtain advance permission to file further litigation.

The motion also seeks that the court order that plaintiff provide security in connection with any future litigation. It is not clear that the court has the authority to do that on this motion, as CCP § 391.1 permits a defendant to move the court for an order requiring plaintiff to post a bond, and CCP § 391.7 permits the presiding justice or presiding judge who permits the filing of future litigation to make such an order:

(b) The presiding justice or presiding judge shall permit the filing of that litigation only if it appears that the litigation has merit and has not been filed for the purposes of harassment or delay. The presiding justice or presiding judge may condition the filing of the litigation upon the furnishing of security for the benefit of the defendants as provided in Section 391.3.”

It would appear that any request for the furnishing of security in a future case would be premature, and such an order will not issue.

RULING:

[No Opposition]

UNOPPOSED Motion for Summary Judgment, or, in the alternative, Summary Adjudication is GRANTED.

The Court finds that plaintiff has failed to file any papers opposing this motion, and has failed to comply with the statutory requirement of filing a separate statement addressing each material fact raised in the moving papers. Pursuant to CCP §437c(b), the motion is GRANTED. The motion is also granted on its merits, as defendant Make-Up Artists & Hair Stylists Guild—IATSE Local 706 has presented uncontroverted evidence establishing that plaintiff cannot establish one or more of the elements of her remaining causes of action against the moving defendant, and that such claims are barred by the affirmative defenses of preemption and untimeliness. [UMF Nos. 12-31, 37-51, 78-86, 88, 91-93, 234-243, and evidence cited]. This shifts the burden to plaintiff to raise triable issues, which has not been met.

Defendant to file appropriate form of dismissal/ judgment.

UNOPPOSED Motion of Defendant Make-Up Artists & Hair Stylists Guild—IATSE Local 706 to Deem Plaintiff Alicia M. Tripi a Vexatious Litigant is GRANTED.

The Court finds that plaintiff Alicia M. Tripi is a vexatious litigant within the definition of CCP section (b)(1), as in the immediately preceding seven-year period plaintiff has commenced, prosecuted, or maintained in propria persona at least five litigations other than in a small claims court that have been finally determined adversely to plaintiff.

The Court accordingly enters a prefiling order pursuant to CCP section 391.7 (a), prohibiting Alicia M. Tripi from filing any new litigation in the courts of this state in propia persona without first obtaining leave of the presiding justice or president judge of the court where the litigation is proposed to be filed. Disobedience of this order by Alicia M. Tripi may be punished as a contempt of court.

GIVEN THE CORONAVIRUS CRISIS, AND TO PROMOTE APPROPRIATE SOCIAL DISTANCING, UNTIL FURTHER ORDERED, DEPARTMENT D IS ENCOURAGING AUDIO OR VIDEO APPEARANCES

Please make arrangements in advance if you wish to appear via LACourtConnect by visiting www.lacourt.org, and scheduling a remote appearance. Please note that LACourtConnect offers an audio-only appearance option at a current cost of $15.00 and a video appearance option at a cost of $23.00. Counsel and parties (including self-represented litigants) are encouraged not to personally appear, unless they have obtained advance permission of the Court. Anyone who appears in person for the hearing will be required to comply with strict social distancing measures, including, but not limited to, assigned seating, capacity limitations in the courtroom, designated waiting areas, and strictly enforced spacing in line to communicate with court staff. If no appearance is set up through LACourtConnect, or otherwise, then the Court will assume the parties are submitting on the tentative.

Case Number: EC062256    Hearing Date: March 13, 2020    Dept: NCD

TENTATIVE RULING

Calendar: 11

Date: 3/13/20

Case No: EC 062256 Trial Date: None Set

Case Name: Tripi v. Make-Up Artists & Hair Stylists Guild—IATSE Local 706, et al.

MOTIONS FOR DISCOVERY SANCTIONS (3)

MOTION TO AMEND JUDGMENT

Moving Party: Defendant Make-Up Artists & Hair Stylists Guild- IATSE Local 706

Responding Party: Plaintiff Alicia M. Tripi (No Opposition)

RELIEF REQUESTED:

Issue sanctions, evidence sanction, terminating sanctions and/or monetary sanctions

Order amending December 20, 2019 judgment

CHRONOLOGY

Date Discovery served: December 2, 2019

Date Responses served: NO RESPONSES SERVED

Date of Court Order: No court order

Motion Served: February 20, 2020

FACTUAL BACKGROUND:

Plaintiff Alicia Tripi brings this action against her labor union, defendant the Make-Up Artists & Hair Stylists Guild IATSE Local 706 (the “Union”), and several individual defendants alleged to have been members of its Executive Board, officers, or otherwise affiliated, alleging that she is a 61-year-old woman of Hispanic national origin, and has filed several complaints with the United States Employment Opportunity Commission alleging discrimination and retaliation against the Union. Plaintiff alleges that due to the conduct of defendants she has not been rehired for jobs for which she had originally been hired, has been the subject of defamatory, discriminatory and retaliatory statements made by the Union, defendants and various members, and has been blacklisted by the Union, so has not received job referrals from the Union.

It is also alleged that the Union’s Availability List policies, in effect requiring the dispatcher to fill assignments first from a “Trainee” list, then from a “Key” list and finally from a “Department Head” list, is discriminatory as it disproportionately impacts older Union members such as plaintiff.

Plaintiff also alleges that she has been subject to disparate treatment due to her national origin, as she is being black-listed by the Union even though her dues were all paid, while another white member who was delinquent on her dues was being approved for additional double dipping work by the Union Assistant Business Representative, who has a history of incidents of discrimination against Hispanic women.

The Union and the individual defendants filed special motions to strike in response to the complaint, which were originally heard on September 26, 2014. The court, Judge Doyle presiding, denied the motion and joinder/motion as follows:

“Defendants’ Special Motion to Strike and Joinder are DENIED. The moving papers fail to establish that the subject claims arise out of protected activity, that is, it has not been established that the gravamen of the claims involves statements made in connection with an issue of public interest.”

Defendants appealed the ruling. The unpublished court of appeal decision was filed on June 14, 2016. The court of appeal reversed the trial court order in part and remanded as follows:

“The trial court’s order is reversed insofar as it pertains to the first and sixth causes of action. As to the fifth cause of action, the trial court’s order is reversed insofar as the fifth cause of action derives from the first and sixth causes of action and is affirmed insofar as the fifth cause of action derives from the second, third, and fourth causes of action. The matter is remanded for further proceedings in accordance with the opinions expressed herein.”

[Court of Appeal Decision, p. 34].

The Court of Appeal’s Decision, Disposition, also provides, “Appellants Milars, Germain, Rizzo, Jackson, Blake, Catmill, and Engelman are awarded costs.”

Specifically, the court of appeal found that the following communications constitute conduct or communication in connection with a public issue or an issue of public interest, which support the claims for retaliation (first cause of action against Union), aiding and abetting retaliation (sixth cause of action against individual defendants), and to the extent relied upon, the claim for failure to prevent discrimination and harassment (fifth cause of action against Union):

  1. Defendant Blake’s statements made on the Facebook forum (concerning proposed CBA)
  2. Statements made at the November 21, 2010 general membership meeting (considering Executive Board’s findings on allegations that two of high-ranking leaders had breached their fiduciary duties, including credibility of Tripi, relevant to the accuracy of her accusations).
  3. Affidavit of Charges filed by Milars and Germaine and processed by Jackson, and Rizzo’s comments (at May 22, 2011 meeting) related to Tripi’s alleged refusal to answer questions (intertwined with Union’s investigation of Tripi’s accusations against Union leadership)

[Court of Appeal Decision, p. 13-20].

The motions were then scheduled by the trial court for hearing to address the second prong of the anti-SLAPP analysis in connection with the first and fifth causes of action brought against the Union, and the sixth cause of action as brought against the individual defendants.

The court permitted the filing of supplemental papers. Plaintiff did not timely file or serve supplemental papers.

The matters were originally set to be heard on November 18, 2016.

On November 16, 2016, plaintiff gave notice to counsel for defendants that she intended to appear ex parte for an extension of time to file an opposition brief. On November 17, 2016, counsel for defendants appeared in court, but plaintiff did not appear, and the ex parte application was not filed, so the court placed the matter off-calendar.

On November 18, 2016, plaintiff appeared at the hearing and requested a continuance, which the court granted, and continued the matters to 2/10/17, and ordered that plaintiff’s oppositions were to be served and filed by January 20, 2017. The matters were then continued to February 17, 2017. No further oppositions were served or filed by plaintiff. Defendants filed sur-replies indicating that no further papers had been served by plaintiff.

On February 17, 2017, plaintiff and defendants appeared at the hearing, and the court published its detailed tentative. The special motion to strike (SLAPP suit) brought by the individual defendants was granted, the court finding that plaintiff had failed to establish a probability of success on the second prong of the anti-SLAPP statute by demonstrating by admissible evidence that plaintiff could overcome the defense of immunity of the individuals to individual liability, and, as to all defendants other than defendant Leonard Engelman, the defense that plaintiff had failed to exhaust the union’s internal remedies prior to resorting to this civil action.

On April 17, 2017, plaintiff Tripi, in pro per, filed a Notice of Appeal of the June 1, 2016 of the decision by the court of appeal, and also of the February 17, 2017 rulings.

On July 14, 2017, the court heard a motion by the individual defendants for attorneys’ fees as the prevailing parties on the special motion to strike. Tripi did not file an opposition to the fee motion, but one day before the hearing filed an ex parte application to stay all proceedings relating to the attorney fees and costs. The court denied the ex parte application and awarded $280,327.35 in attorneys’ fees and costs to the individual defendants pursuant to CCP § 425.16.

On September 12, 2017, Tripi filed another notice of appeal, again specifying the June 14, 2016 decision in the first appeal as well as the July 14, 2017 ruling on the motion for attorneys’ fees.

The appeals were consolidated, and on May 9, 2019, the court of appeal filed its unpublished opinion, dismissing the appeals from the original court of appeal decision, as that appellate decision was not a judgment that would be reviewable by the court of appeal, and such an appeal would also be untimely.

The court of appeal also found that no cognizable issue had been raised with respect to the February 17, 2017 ruling on the anti-SLAPP motion or the July 14, 2017 ruling on the motion for attorneys’ fees. The trial court orders were affirmed, and the Disposition states:

“Respondents shall recover their costs on appeal. Further, as requested, respondents shall recover reasonable attorney fees incurred in defending the appeal, in an amount to be determined by the trial court. (§425.16, subd. (c)(1); GeneThera, Inc. v. Troy & Gould Professional Corp. (2009) 171 Cal.App.4th 901, 910-911.)”

[Court of Appeal Decision II, p. 7].

On July 30, 2019, the remittitur was filed with this court.

On October 4, 2019, the court heard a motion by the individual defendants for their attorney fees on appeal, which was granted, the court awarding $79,678.10.

On November 1, 2019, the court heard a motion by the individual defendants for the entry of an order dismissing as moot the cross-complaint filed by the individuals against Tripi as a cross-defendant, and four discovery motions brought by the Union defendant.

The unopposed motions were granted. The court ordered the cross-complaint voluntarily dismissed by the moving parties with/without prejudice, as per cross-complainants’ specification of dismissal as with or without prejudice.

The discovery motions were granted, and Requests for Admissions Deemed admitted, and responses without objection ordered to be served by plaintiff to two sets of form interrogatories, and to Requests for Production (Set One) within ten days. Monetary sanctions for each of four motions were awarded against plaintiff in the amount of $1,350, payable within thirty days.

On January 31, 2020, the court heard unopposed motions for further discovery sanctions regarding the subject discovery, which were granted, and the court issued issue and evidence sanctions, along with further monetary sanctions.

ANALYSIS:

Amend Judgment

The individual defendants here seek to amend the court’s December 20, 2019 judgment in their favor, on the ground the clerk has informed the parties that a writ of execution may not be issued unless the judgment is amended to state the judgment creditors’ full names after the phrase “IT IS HEREBY ORDERED ADJUDGED AND DECREED,” when the current judgment lists the full names before this phrase.

Relief is sought under CCP § 473 (d), which provides, in pertinent part:

“(d) The court may, upon motion of the injured party, or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed….”

The amendment appears appropriate to conform to the actual judgment intended to be directed by the court, and there is no opposition to the motion. The motion accordingly is granted.

Discovery Motions

These motions seem to seek relief under CCP § 2030.290 (c), which provides that if a party “fails to obey” a court order compelling responses to interrogatories, “the court does make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction under Chapter 7 (commencing with Section 2023.010.” The papers cite a similar provision which applies to the failure to obey a court order compelling responses to document demands. CCP § 2031.300 (c).

However, there have not yet been any orders entered compelling responses to the subject discovery; it appears that issue and evidence sanctions are sought on the ground there has been a pattern of failing to respond to this and other discovery, warranting the subject sanctions. In the absence of court orders which have been disobeyed under the referenced statutes, the court does not grant relief under these statutes, but orders the RFAs deemed admitted, and finds the other motions moot, and awards monetary sanctions.

However, in the absence of opposition, there is a request for sanctions for misuse of the discovery process. Under CCP § 2023.010, “misuse of the discovery process” includes “(d) Failing to respond or to submit to an authorized method of discovery.” Where there has been such conduct, under CCP section 2023.030 (b), the court may impose evidence or issue sanctions:

“(b) The court may impose an issue sanction ordering the designated facts shall be taken as established in the action in accordance with the claim of the party adversely affected by the misuse of the discovery process. The court may also impose an issue sanction by an order prohibiting any party engaging in the misuse of the discovery process from supporting or opposing designated claims or defenses.

(c) The court may impose an evidence sanction by an order prohibiting a party engaging in the misuse of the discovery process from introducing designated matters in evidence.”

The moving and reply papers sufficiently establish that plaintiff has failed to respond to or submit to an authorized method of discovery, and continues to fail to obey other discovery orders, and has failed to pay previously imposed monetary sanctions. [Zakson Decl. ¶ 10]. Plaintiff has failed to timely oppose these motions and has engaged in a persistent refusal to comply with her discovery obligations and orders to pay monetary sanctions.

A review of the proposed orders filed in connection with these motions show that in connection with the RFAs, the court orders the RFAs deemed admitted, and in connection with the other two motions, the issue and evidence sanctions requested are rationally related to the requested discovery and appropriately place the moving defendant in the same position as it would have been had the responses to the discovery requests been favorable, and appropriately prohibits the introduction of evidence which should have been produced in response to the subject discovery. The motions are granted, and the proposed orders signed and filed as the orders of this court.

RULING:

[No opposition]

UNOPPOSED Motion to Amend the Court’s December 20, 2019 Several Judgment is GRANTED pursuant to CCP § 473 (d). The court will sign and file the proposed amended and superseding judgment submitted with the motion.

UNOPPOSED Motion of Defendant Make-Up Artists & Hair Stylists Guild- IATSE Local 706 for Discovery Sanctions for Plaintiff’s Failure to Respond to Form Interrogatories—General (Set Two) is GRANTED.

Plaintiff has failed to respond to an authorized method of discovery and has exhibited a pattern of misuse of the discovery process by continuing to fail to comply with this court’s order of November 1, 2019 requiring plaintiff to provide responses to other discovery, and to pay monetary sanctions. Plaintiff has also failed to file timely written oppositions to this motion. This has resulted in prejudice to defendant.

The court has reviewed the proposed order filed in connection with this motion and finds that the issue and evidence sanctions requested are rationally related to the requested discovery and appropriately place the moving defendant in the same position as it would have been had the responses to the discovery requests been favorable, and appropriately prohibits the introduction of evidence which should have been produced in response to the subject discovery. The motion is accordingly granted with respect to issue and evidence sanctions and the proposed order will be signed and filed as the order of this court.

Monetary sanctions in the amount of $1,350.00 [$1,350 requested] are awarded against plaintiff Alicia M. Tripi, payable within 30 days. CCP §§ 2023.010(d) and 2023.030(a).

UNOPPOSED Motion of Defendant Make-Up Artists & Hair Stylists Guild- IATSE Local 706 for Discovery Sanctions for Plaintiff’s Failure to Respond to Requests for Production (Set Two) is GRANTED.

Plaintiff has failed to respond to an authorized method of discovery and has exhibited a pattern of misuse of the discovery process by continuing to fail to comply with this court’s order of November 1, 2019 requiring plaintiff to provide responses to other discovery, and to pay monetary sanctions. Plaintiff has also failed to file timely written oppositions to this motion. This has resulted in prejudice to defendant.

The court has reviewed the proposed order filed in connection with this motion and finds that the issue and evidence sanctions requested are rationally related to the requested discovery and appropriately place the moving defendant in the same position as it would have been had the responses to the discovery requests been favorable, and appropriately prohibits the introduction of evidence which should have been produced in response to the subject discovery. The motion is accordingly granted with respect to issue and evidence sanctions and the proposed order will be signed and filed as the order of this court.

Monetary sanctions in the amount of $1,350.00 [$1,350 requested] are awarded against plaintiff Alicia M. Tripi, payable within 30 days. CCP §§ 2023.010(d) and 2023.030(a).

UNOPPOSED Motion of Defendant Make-Up Artists & Hair Stylists Guild- IATSE Local 706 for Order that the Truth of All Matters Specified in Requests for Admissions to Plaintiff (Set Two) be Deemed Admitted is GRANTED.

Plaintiff Alicia M. Tripi has failed to serve timely responses substantially complying with the provisions of CCP § 2033.220 prior to the hearing on this motion. The court therefore orders that all matters specified in Defendant Make-Up Artists & Hair Stylists Guild- IATSE Local 706’s Requests for Admissions to Plaintiff [Set Two] are deemed admitted as true, pursuant to CCP § 2033.280(c). Monetary sanctions in the amount of $ 1,800.00 [$1,800 requested] are awarded against defendant, Alicia M. Tripi, payable within 30 days. CCP §§ 2033.280(c), 2023.010(d), 2023.030(a).

Case Number: EC062256    Hearing Date: January 31, 2020    Dept: NCD

TENTATIVE RULING

Calendar: 9

Date: 1/31/20

Case No: EC 062256 Trial Date: None Set

Case Name: Tripi v. Make-Up Artists & Hair Stylists Guild—IATSE Local 706, et al.

MOTION FOR FURTHER DISCOVERY SANCTIONS (3)

Moving Party: Defendant Make-Up Artists & Hair Stylists Guild- IATSE Local 706

Responding Party: Plaintiff Alicia M. Tripi (No Opposition)

RELIEF REQUESTED:

Issue sanctions, evidence sanction, and/or monetary sanctions

CHRONOLOGY

Date Discovery served: March 7, 2017

Date Responses served: NO RESPONSES SERVED

Date of Court Order: November 1, 2019 (Plaintiff ordered to serve responses to Form Interrogatories--- General, and Form Interrogatories—Employment, and Request for Production of Documents within 10 days, RFAs deemed admitted, sanctions of $1,350 for each motion to be paid within 30 days)

Notice of Ruling served: November 4, 2019

Motion Served: November 21, 2019

FACTUAL BACKGROUND:

Plaintiff Alicia Tripi brings this action against her labor union, defendant the Make-Up Artists & Hair Stylists Guild IATSE Local 706 (the “Union”), and several individual defendants alleged to have been members of its Executive Board, officers, or otherwise affiliated, alleging that she is a 61-year-old woman of Hispanic national origin, and has filed several complaints with the United States Employment Opportunity Commission alleging discrimination and retaliation against the Union. Plaintiff alleges that due to the conduct of defendants she has not been rehired for jobs for which she had originally been hired, has been the subject of defamatory, discriminatory and retaliatory statements made by the Union, defendants and various members, and has been blacklisted by the Union, so has not received job referrals from the Union.

It is also alleged that the Union’s Availability List policies, in effect requiring the dispatcher to fill assignments first from a “Trainee” list, then from a “Key” list and finally from a “Department Head” list, is discriminatory as it disproportionately impacts older Union members such as plaintiff.

Plaintiff also alleges that she has been subject to disparate treatment due to her national origin, as she is being black-listed by the Union even though her dues were all paid, while another white member who was delinquent on her dues was being approved for additional double dipping work by the Union Assistant Business Representative, who has a history of incidents of discrimination against Hispanic women.

The Union and the individual defendants filed special motions to strike in response to the complaint, which were originally heard on September 26, 2014. The court, Judge Doyle presiding, denied the motion and joinder/motion as follows:

“Defendants’ Special Motion to Strike and Joinder are DENIED. The moving papers fail to establish that the subject claims arise out of protected activity, that is, it has not been established that the gravamen of the claims involves statements made in connection with an issue of public interest.”

Defendants appealed the ruling. The unpublished court of appeal decision was filed on June 14, 2016. The court of appeal reversed the trial court order in part and remanded as follows:

“The trial court’s order is reversed insofar as it pertains to the first and sixth causes of action. As to the fifth cause of action, the trial court’s order is reversed insofar as the fifth cause of action derives from the first and sixth causes of action and is affirmed insofar as the fifth cause of action derives from the second, third, and fourth causes of action. The matter is remanded for further proceedings in accordance with the opinions expressed herein.”

[Court of Appeal Decision, p. 34].

The Court of Appeal’s Decision, Disposition, also provides, “Appellants Milars, Germain, Rizzo, Jackson, Blake, Catmill, and Engelman are awarded costs.”

Specifically, the court of appeal found that the following communications constitute conduct or communication in connection with a public issue or an issue of public interest, which support the claims for retaliation (first cause of action against Union), aiding and abetting retaliation (sixth cause of action against individual defendants), and to the extent relied upon, the claim for failure to prevent discrimination and harassment (fifth cause of action against Union):

  1. Defendant Blake’s statements made on the Facebook forum (concerning proposed CBA)
  2. Statements made at the November 21, 2010 general membership meeting (considering Executive Board’s findings on allegations that two of high-ranking leaders had breached their fiduciary duties, including credibility of Tripi, relevant to the accuracy of her accusations).
  3. Affidavit of Charges filed by Milars and Germaine and processed by Jackson, and Rizzo’s comments (at May 22, 2011 meeting) related to Tripi’s alleged refusal to answer questions (intertwined with Union’s investigation of Tripi’s accusations against Union leadership)

[Court of Appeal Decision, p. 13-20].

The motions were then scheduled by the trial court for hearing to address the second prong of the anti-SLAPP analysis in connection with the first and fifth causes of action brought against the Union, and the sixth cause of action as brought against the individual defendants.

The court permitted the filing of supplemental papers. Plaintiff did not timely file or serve supplemental papers.

The matters were originally set to be heard on November 18, 2016.

On November 16, 2016, plaintiff gave notice to counsel for defendants that she intended to appear ex parte for an extension of time to file an opposition brief. On November 17, 2016, counsel for defendants appeared in court, but plaintiff did not appear, and the ex parte application was not filed, so the court placed the matter off-calendar.

On November 18, 2016, plaintiff appeared at the hearing and requested a continuance, which the court granted, and continued the matters to 2/10/17, and ordered that plaintiff’s oppositions were to be served and filed by January 20, 2017. The matters were then continued to February 17, 2017. No further oppositions were served or filed by plaintiff. Defendants filed sur-replies indicating that no further papers had been served by plaintiff.

On February 17, 2017, plaintiff and defendants appeared at the hearing, and the court published its detailed tentative. The special motion to strike (SLAPP suit) brought by the individual defendants was granted, the court finding that plaintiff had failed to establish a probability of success on the second prong of the anti-SLAPP statute by demonstrating by admissible evidence that plaintiff could overcome the defense of immunity of the individuals to individual liability, and, as to all defendants other than defendant Leonard Engelman, the defense that plaintiff had failed to exhaust the union’s internal remedies prior to resorting to this civil action.

On April 17, 2017, plaintiff Tripi, in pro per, filed a Notice of Appeal of the June 1, 2016 of the decision by the court of appeal, and also of the February 17, 2017 rulings.

On July 14, 2017, the court heard a motion by the individual defendants for attorneys’ fees as the prevailing parties on the special motion to strike. Tripi did not file an opposition to the fee motion, but one day before the hearing filed an ex parte application to stay all proceedings relating to the attorney fees and costs. The court denied the ex parte application and awarded $280,327.35 in attorneys’ fees and costs to the individual defendants pursuant to CCP § 425.16.

On September 12, 2017, Tripi filed another notice of appeal, again specifying the June 14, 2016 decision in the first appeal as well as the July 14, 2017 ruling on the motion for attorneys’ fees.

The appeals were consolidated, and on May 9, 2019, the court of appeal filed its unpublished opinion, dismissing the appeals from the original court of appeal decision, as that appellate decision was not a judgment that would be reviewable by the court of appeal, and such an appeal would also be untimely.

The court of appeal also found that no cognizable issue had been raised with respect to the February 17, 2017 ruling on the anti-SLAPP motion or the July 14, 2017 ruling on the motion for attorneys’ fees. The trial court orders were affirmed, and the Disposition states:

“Respondents shall recover their costs on appeal. Further, as requested, respondents shall recover reasonable attorney fees incurred in defending the appeal, in an amount to be determined by the trial court. (§425.16, subd. (c)(1); GeneThera, Inc. v. Troy & Gould Professional Corp. (2009) 171 Cal.App.4th 901, 910-911.)”

[Court of Appeal Decision II, p. 7].

On July 30, 2019, the remittitur was filed with this court.

On October 4, 2019, the court heard a motion by the individual defendants for their attorney fees on appeal, which was granted, the court awarding $79,678.10.

On November 1, 2019, the court heard a motion by the individual defendants for the entry of an order dismissing as moot the cross-complaint filed by the individuals against Tripi as a cross-defendant, and four discovery motions brought by the Union defendant.

The unopposed motions were granted. The court ordered the cross-complaint voluntarily dismissed by the moving parties with/without prejudice, as per cross-complainants’ specification of dismissal as with or without prejudice.

The discovery motions were granted, and Requests for Admissions Deemed admitted, and responses without objection ordered to be served by plaintiff to two sets of form interrogatories, and to Requests for Production (Set One) within ten days. Monetary sanctions for each of four motions were awarded against plaintiff in the amount of $1,350, payable within thirty days.

ANALYSIS:

Under CCP § 2030.290 (c), if a party “fails to obey” a court order compelling responses to interrogatories, “the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction under Chapter 7 (commencing with Section 2023.010.” A similar provision applies to the failure to obey a court order compelling responses to document demands. CCP § 2031.300 (c).

Under section 2023.010, “misuse of the discovery process” includes “(g) Disobeying a court order to provide discovery.” Where there has been such conduct, under CCP section 2023.030 (b), the court may impose evidence or issue sanctions:

“(b) The court may impose an issue sanction ordering the designated facts shall be taken as established in the action in accordance with the claim of the party adversely affected by the misuse of the discovery process. The court may also impose an issue sanction by an order prohibiting any party engaging in the misuse of the discovery process from supporting or opposing designated claims or defenses.

(c) The court may impose an evidence sanction by an order prohibiting a party engaging in the misuse of the discovery process from introducing designated matters in evidence.”

Where a court order has been disobeyed, the choice of sanction is within the court’s discretion and will only be set aside for abuse of discretion. Sauer v. Superior Court (1987) 195 Cal.App.3d 213, 228.

The moving and reply papers sufficiently establish that plaintiff has failed to obey the court’s order of November 1, 2019, and has failed to pay the monetary sanctions, so that the imposition of lesser sanctions in this matter has not been effective. Plaintiff has failed to timely oppose these motions and has engaged in a persistent refusal to comply with her discovery obligations and orders to pay monetary sanctions. Plaintiff has also by her inaction permitted requests for admissions to be deemed admitted.

A review of the proposed orders filed in connection with these motions show that the issue and evidence sanctions requested are rationally related to the requested discovery and appropriately place the moving defendant in the same position as it would have been had the responses to the discovery requests been favorable, and appropriately prohibits the introduction of evidence which should have been produced in response to the subject discovery. The motions are granted, and the proposed orders are signed and filed as the order of this court.

RULING:

[No opposition]

UNOPPOSED Motion of Defendant Make-Up Artists & Hair Stylists Guild- IATSE Local 706 for Further Discovery Sanctions for Plaintiff’s Failure to Comply with the Court’s Order Compelling her to Provide Responses to Form Interrogatories—Employment Law (Set One) is GRANTED.

Plaintiff has failed to comply with this court’s order of November 1, 2019 requiring plaintiff to provide responses to the subject discovery, and to pay monetary sanctions. Plaintiff has also by her inaction permitted Requests for Admissions to be deemed admitted. The court finds that the imposition of lesser sanctions (monetary) have been ineffective in procuring plaintiff’s compliance with plaintiff’s discovery obligations in this matter. Plaintiff has also failed to file timely written oppositions to the prior motion or this motion. This has resulted in prejudice to defendant.

The court has reviewed the proposed order filed in connection with this motion and finds that the issue and evidence sanctions requested are rationally related to the requested discovery and appropriately place the moving defendant in the same position as it would have been had the responses to the discovery requests been favorable, and appropriately prohibits the introduction of evidence which should have been produced in response to the subject discovery. The motion is accordingly granted, and the proposed order will be signed and filed as the order of this court.

Further monetary sanctions in the amount of $1,350.00 [$1,350 requested] are awarded against plaintiff Alicia M. Tripi, payable within 30 days. CCP§§ 2030.290 (c), 2031.300(c), 2023.010(g) and 2023.030(a).

UNOPPOSED Motion of Defendant Make-Up Artists & Hair Stylists Guild- IATSE Local 706 for Further Discovery Sanctions for Plaintiff’s Failure to Comply with the Court’s Order Compelling her to Provide Responses to Form Interrogatories—General (Set One) is GRANTED.

Plaintiff has failed to comply with this court’s order of November 1, 2019 requiring plaintiff to provide responses to the subject discovery, and to pay monetary sanctions. Plaintiff has also by her inaction permitted Requests for Admissions to be deemed admitted. The court finds that the imposition of lesser sanctions (monetary) have been ineffective in procuring plaintiff’s compliance with plaintiff’s discovery obligations in this matter. Plaintiff has also failed to file timely written oppositions to the prior motion or this motion. This has resulted in prejudice to defendant.

The court has reviewed the proposed order filed in connection with this motion and finds that the issue and evidence sanctions requested are rationally related to the requested discovery and appropriately place the moving defendant in the same position as it would have been had the responses to the discovery requests been favorable, and appropriately prohibits the introduction of evidence which should have been produced in response to the subject discovery. The motion is accordingly granted, and the proposed order will be signed and filed as the order of this court.

Further monetary sanctions in the amount of $1,350.00 [$1,350 requested] are awarded against plaintiff Alicia M. Tripi, payable within 30 days. CCP§§ 2030.290 (c), 2031.300(c), 2023.010(g) and 2023.030(a).

UNOPPOSED Motion of Defendant Make-Up Artists & Hair Stylists Guild- IATSE Local 706 for Further Discovery Sanctions for Plaintiff’s Failure to Comply with the Court’s Order Compelling her to Provide Responses to Requests for Production to Plaintiff Alicia M. Tripi (Set One) is GRANTED.

Plaintiff has failed to comply with this court’s order of November 1, 2019 requiring plaintiff to provide responses to the subject discovery, and to pay monetary sanctions. Plaintiff has also by her inaction permitted Requests for Admissions to be deemed admitted. The court finds that the imposition of lesser sanctions (monetary) have been ineffective in procuring plaintiff’s compliance with plaintiff’s discovery obligations in this matter. Plaintiff has also failed to file timely written oppositions to the prior motion or this motion. This has resulted in prejudice to defendant.

The court has reviewed the proposed order filed in connection with this motion and finds that the issue and evidence sanctions requested are rationally related to the requested discovery and appropriately place the moving defendant in the same position as it would have been had the responses to the discovery requests been favorable, and appropriately prohibits the introduction of evidence and documents which should have been produced in response to the subject discovery. The motion is accordingly granted, and the proposed order will be signed and filed as the order of this court.

Further monetary sanctions in the amount of $1,800.00 [$1,800 requested] are awarded against plaintiff Alicia M. Tripi, payable within 30 days. CCP§§ 2030.290 (c), 2031.300(c), 2023.010(g) and 2023.030(a).

Case Number: EC062256    Hearing Date: December 20, 2019    Dept: NCD

TENTATIVE RULING

Calendar: 11

Date: 12/20/19

Case No: EC 062256 Trial Date: None Set

Case Name: Tripi v. Make-Up Artists & Hair Stylists Guild—IATSE Local 706, et al.

MOTION FOR JUDGMENT MOTION FOR DISCOVERY SANCTIONS

Moving Party: Defendants Lydia Milars, Michael Germain, John Rizzo, John E. Jackson, Michael Blake, Hazel Catmull, and Leonard Engelman (Judgment)

“Joinder” filed by defendant Make-Up Artists & Hair Stylists Guild- IATSE Local 706

Defendant Make-Up Artists & Hair Stylists Guild- IATSE Local 706 (Sanctions)

Responding Party: Plaintiff Alicia M. Tripi (No Opposition)

RELIEF REQUESTED:

Judgment

Judgment to be entered in favor of individual defendants

Discovery Sanctions

Order imposing additional sanctions, including issue, evidence or monetary sanctions against plaintiff

CHRONOLOGY

Date Discovery served: March 7, 2017

Date Responses served: NO RESPONSES SERVED

Date of Court Order: November 1, 2019 (Plaintiff ordered to serve responses to Form Interrogatories--- General, and Form Interrogatories—Employment, and Request for Production of Documents within 10 days, RFAs deemed admitted, sanctions of $1,350 for each motion to be paid within 30 days

Notice of Ruling served: November 4, 2019

Motion Served: November 21, 2019

FACTUAL AND PROCEDURAL BACKGROUND:

Plaintiff Alicia Tripi brings this action against her labor union, defendant the Make-Up Artists & Hair Stylists Guild IATSE Local 706 (the “Union”), and several individual defendants alleged to have been members of its Executive Board, officers, or otherwise affiliated, alleging that she is a 61-year-old woman of Hispanic national origin, and has filed several complaints with the United States Employment Opportunity Commission alleging discrimination and retaliation against the Union. Plaintiff alleges that due to the conduct of defendants she has not been rehired for jobs for which she had originally been hired, has been the subject of defamatory, discriminatory and retaliatory statements made by the Union, defendants and various members, and has been blacklisted by the Union, so has not received job referrals from the Union.

It is also alleged that the Union’s Availability List policies, in effect requiring the dispatcher to fill assignments first from a “Trainee” list, then from a “Key” list and finally from a “Department Head” list, is discriminatory as it disproportionately impacts older Union members such as plaintiff.

Plaintiff also alleges that she has been subject to disparate treatment due to her national origin, as she is being black-listed by the Union even though her dues were all paid, while another white member who was delinquent on her dues was being approved for additional double dipping work by the Union Assistant Business Representative, who has a history of incidents of discrimination against Hispanic women.

The Union and the individual defendants filed special motions to strike in response to the complaint, which were originally heard on September 26, 2014. The court, Judge Doyle presiding, denied the motion and joinder/motion as follows:

“Defendants’ Special Motion to Strike and Joinder are DENIED. The moving papers fail to establish that the subject claims arise out of protected activity, that is, it has not been established that the gravamen of the claims involves statements made in connection with an issue of public interest.”

Defendants appealed the ruling. The unpublished court of appeal decision was filed on June 14, 2016. The court of appeal reversed the trial court order in part and remanded as follows:

“The trial court’s order is reversed insofar as it pertains to the first and sixth causes of action. As to the fifth cause of action, the trial court’s order is reversed insofar as the fifth cause of action derives from the first and sixth causes of action and is affirmed insofar as the fifth cause of action derives from the second, third, and fourth causes of action. The matter is remanded for further proceedings in accordance with the opinions expressed herein.”

[Court of Appeal Decision, p. 34].

The Court of Appeal’s Decision, Disposition, also provides, “Appellants Milars, Germain, Rizzo, Jackson, Blake, Catmill, and Engelman are awarded costs.”

Specifically, the court of appeal found that the following communications constitute conduct or communication in connection with a public issue or an issue of public interest, which support the claims for retaliation (first cause of action against Union), aiding and abetting retaliation (sixth cause of action against individual defendants), and to the extent relied upon, the claim for failure to prevent discrimination and harassment (fifth cause of action against Union):

  1. Defendant Blake’s statements made on the Facebook forum (concerning proposed CBA)
  2. Statements made at the November 21, 2010 general membership meeting (considering Executive Board’s findings on allegations that two of high-ranking leaders had breached their fiduciary duties, including credibility of Tripi, relevant to the accuracy of her accusations).
  3. Affidavit of Charges filed by Milars and Germaine and processed by Jackson, and Rizzo’s comments (at May 22, 2011 meeting) related to Tripi’s alleged refusal to answer questions (intertwined with Union’s investigation of Tripi’s accusations against Union leadership)

[Court of Appeal Decision, p. 13-20].

The motions were then scheduled by the trial court for hearing to address the second prong of the anti-SLAPP analysis in connection with the first and fifth causes of action brought against the Union, and the sixth cause of action as brought against the individual defendants.

The court permitted the filing of supplemental papers. Plaintiff did not timely file or serve supplemental papers.

The matters were originally set to be heard on November 18, 2016.

On November 16, 2016, plaintiff gave notice to counsel for defendants that she intended to appear ex parte for an extension of time to file an opposition brief. On November 17, 2016, counsel for defendants appeared in court, but plaintiff did not appear, and the ex parte application was not filed, so the court placed the matter off-calendar.

On November 18, 2016, plaintiff appeared at the hearing and requested a continuance, which the court granted, and continued the matters to 2/10/17, and ordered that plaintiff’s oppositions were to be served and filed by January 20, 2017. The matters were then continued to February 17, 2017. No further oppositions were served or filed by plaintiff. Defendants filed sur-replies indicating that no further papers had been served by plaintiff.

On February 17, 2017, plaintiff and defendants appeared at the hearing, and the court published its detailed tentative. The special motion to strike (SLAPP suit) brought by the individual defendants was granted, the court finding that plaintiff had failed to establish a probability of success on the second prong of the anti-SLAPP statute by demonstrating by admissible evidence that plaintiff could overcome the defense of immunity of the individuals to individual liability, and, as to all defendants other than defendant Leonard Engelman, the defense that plaintiff had failed to exhaust the union’s internal remedies prior to resorting to this civil action.

On April 17, 2017, plaintiff Tripi, in pro per, filed a Notice of Appeal of the June 1, 2016 of the decision by the court of appeal and also of the February 17, 2017 rulings.

On July 14, 2017, the court heard a motion by the individual defendants for attorneys’ fees as the prevailing parties on the special motion to strike. Tripi did not file an opposition to the fee motion, but one day before the hearing filed an ex parte application to stay all proceedings relating to the attorney fees and costs. The court denied the ex parte application and awarded $280,327.35 in attorneys’ fees and costs to the individual defendants pursuant to CCP § 425.16.

On September 12, 2017, Tripi filed another notice of appeal, again specifying the June 14, 2016 decision in the first appeal as well as the July 14, 2017 ruling on the motion for attorneys’ fees.

The appeals were consolidated, and on May 9, 2019, the court of appeal filed its unpublished opinion, dismissing the appeals from the original court of appeal decision, as that appellate decision was not a judgment that would be reviewable by the court of appeal, and such an appeal would also be untimely.

The court of appeal also found that no cognizable issue had been raised with respect to the February 17, 2017 ruling on the anti-SLAPP motion or the July 14, 2017 ruling on the motion for attorneys’ fees. The trial court orders were affirmed, and the Disposition states:

“Respondents shall recover their costs on appeal. Further, as requested, respondents shall recover reasonable attorney fees incurred in defending the appeal, in an amount to be determined by the trial court. (§425.16, subd. (c)(1); GeneThera, Inc. v. Troy & Gould Professional Corp. (2009) 171 Cal.App.4th 901, 910-911.)”

[Court of Appeal Decision II, p. 7].

On July 30, 2019, the remittitur was filed with this court.

On October 4, 2019, the court heard a motion by the individual defendants for their attorney fees on appeal, which was granted, the court awarding $79,678.10.

On November 1, 2019, the court heard a motion by the individual defendants for the entry of an order dismissing as moot the cross-complaint filed by the individuals against Tripi as a cross-defendant, and four discovery motions brought by the Union defendant.

The unopposed motions were granted. The court ordered the cross-complaint voluntarily dismissed by the moving parties with/without prejudice, as per cross-complainants’ specification of dismissal as with or without prejudice. It is not clear whether the cross-complainants specified that the dismissal was to be with or without prejudice.

The discovery motions were granted, and Requests for Admissions Deemed admitted, and responses without objection ordered to be served by plaintiff to two sets of form interrogatories, and to Requests for Production (Set One) within ten days. Monetary sanctions for each of four motions were awarded against plaintiff in the amount of $1,350, payable within thirty days.

DISCOVERY AT ISSUE:

Requests for Production— communications with specific witnesses, supporting or referencing contentions, supporting or refencing affirmative defenses in answer to cross-complaint

ANALYSIS:

Judgment

The individual defendants seek that the court enter judgment in favor of the individual defendants because the controversies between these parties have been fully resolved. The sole cause of action against the individual defendants in plaintiff’s action has been resolved by the court’s ruling on the special motion to strike, and the issues raised by the cross-complaint have been resolved by the court’s granting of the request to voluntarily dismiss the cross-complaint by some of the individual defendants against Tripi.

Relief is sought under CCP § 579, which provides:

“In an action against several defendants, the Court may, in its discretion, render judgment against one or more of them, leaving the action to proceed against the others, whenever a several judgments is proper.”

Defendants rely on Oakland Raiders v. National Football League (2001) 93 Cal.App.4th 572, in which the court of appeal held that the trial court had not abused its discretion in ordering a several judgments in favor of some of the defendants in the matter, where the parties agreed that all issues between plaintiff and those defendants had been resolved by summary adjudication orders. The court of appeal reasoned:

“ Despite the language of Code of Civil Procedure section 579 (judgment may be entered “against” one or more defendants), the section has been consistently construed as authorizing entry of judgment in favor of one or more defendants. In Justus v. Atchison (1977) 19 Cal.3d 564, 568 [139 Cal.Rptr. 97, 565 P.2d 122], the court ruled that judgments of dismissal on orders sustaining demurrers to certain causes of action were properly entered in favor of the defendants, when “[t]he judgments ... disposed ... of all the causes of action in which the husbands are plaintiffs.” That the plaintiff wives remained in the case is a “circumstance [that] does not affect the reason for the exception [to the one final judgment rule], i.e., that it better serves the interests of justice to afford prompt appellate review to a party whose rights or liabilities have been definitively adjudicated than to require him to await the final outcome of trial proceedings which are of no further concern to him.” (Ibid.) Similarly, in Estate of Gonzalez (1990) 219 Cal.App.3d 1598, 1601-1602 [269 Cal.Rptr. 68], we stated that, “It is well *578 settled that where, as here, there is a judgment resolving all issues between a plaintiff and one defendant, then either party may appeal from an adverse judgment, even though the action remains pending between the plaintiff and other defendants.”

Moreover, Code of Civil Procedure section 579 is preceded by section 578, which states, “Judgment may be given for or against one or more of several plaintiffs, and for or against one or more of several defendants; and it may, when the justice of the case requires it, determine the ultimate rights of the parties on each side, as between themselves.” This section has been construed to mean that “judgment may be given for or against one or more of several defendants.” (Martin v. Cinelli (1960) 183 Cal.App.2d 509, 512 [7 Cal.Rptr. 62].) Thus, there is ample authority for the proposition that the trial court, in its discretion, may enter judgment in favor of one or more defendants when all issues between those defendants and the plaintiff have been adjudicated, even though the action remains pending against those defendants who have not obtained adjudication of all issues.

Oakland Raiders, at 577-578.

It appears that this case is now in a posture where all issues between Tripi and the moving parties have been adjudicated, and there is no opposition here, so no objection to or reason presented why a several judgments would not be proper. The motion accordingly is granted.

Discovery Sanctions

Under CCP § 2031.300 (c), if a party “fails to obey” a court order compelling a response to a demand for documents, “the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction under Chapter 7 (commencing with Section 2023.010).”

Under section 2023.010, “misuse of the discovery process” includes “(g) Disobeying a court order to provide discovery.” Where there has been such conduct, under CCP section 2023.030 (b), the court may impose evidence or issue sanctions:

“(b) The court may impose an issue sanction ordering the designated facts shall be taken as established in the action in accordance with the claim of the party adversely affected by the misuse of the discovery process. The court may also impose an issue sanction by an order prohibiting any party engaging in the misuse of the discovery process from supporting or opposing designated claims or defenses.

(c) The court may impose an evidence sanction by an order prohibiting a party engaging in the misuse of the discovery process from introducing designated matters in evidence.”

Where a court order has been disobeyed, the choice of sanction is within the court’s discretion and will only be set aside for abuse of discretion. Sauer v. Superior Court (1987) 195 Cal.App.3d 213, 228.

In general, courts should grant lesser sanctions first before granting issue, evidence or terminating sanctions. Deyo v. Kilbourne (1978) 84 Cal.App.3d 771. The Second District in Deyo set out factors which may be relevant in deciding whether to impose sanctions and which sanction to impose:

“In exercising this discretion, a variety of factors may be relevant, including, 1) the time which has elapsed since interrogatories were *797 served, 2) whether the party served was previously given a voluntary extension of time, 3) the number of interrogatories propounded, 4) whether the unanswered questions sought information which was difficult to obtain, 5) whether the answers supplied were evasive and incomplete, 6) the number of questions which remain unanswered, 7) whether the questions which remain unanswered are material to a particular claim or defense, 8) whether the answering party has acted in good faith, and with reasonable diligence, 9) the existence of prior orders compelling discovery and the answering party's response thereto, 10) whether the party was unable to comply with the previous order of the court, 11) whether an order allowing more time to answer would enable the answering party to supply the necessary information, and, 12) whether a sanction short of dismissal or default would be appropriate to the dereliction.”

Deyo, at 796-797.

The Second District in Deyo noted:

“The penalty should be appropriate to the dereliction and should not exceed that which is required to protect the interests of the party entitled to but denied discovery. Where a motion to comp[el has previously been granted, the sanction should not operate in such a fashion as to put the prevailing party in a better position than he would have had if he had obtained the discovery sought and it had been completely favorable to his cause.”

Deyo, at 793, citation omitted.

The purpose of the Discovery Act is to facilitate discovery with the view toward conducting trial on the merits: “One of the principal purposes of the Discovery Act...is to enable a party to obtain evidence in the control of his adversary in order to further the efficient, economical disposition of cases according to right and justice on the merits.” Caryl Richards, Inc. v. Superior Court (1961, 2nd Dist.) 188 Cal.App.2d 300, 303 (emphasis in the original). Accordingly, Caryl Richards is often quoted in sanctions opinions: “The sanctions the court may impose are such as are suitable and necessary to enable the party seeking discovery to obtain the objects of the discovery he seeks but the court may not impose sanctions which are designed not to accomplish the objects of discovery but to impose punishment.” Caryl Richards,.at 304, citations omitted; see, e.g. Motown Records Corp. v. Superior Court (1984, 2nd Dist.) 155 Cal.App.3d 482, 489.

In this case, plaintiff has been ordered to provide responses to document demands and has failed to do so. The demands request documents referring witnesses identified by plaintiff, and those concerning or supporting plaintiff’s various contentions in this matter. The information sought appears directly pertinent to this case and should not be difficult for plaintiff to obtain.

However, it appears that this is the first set of discovery which has come to hearing, when the matter was stayed for a substantial period, and the motion does not indicate that responses to the other discovery, such as the form interrogatories, were not timely served.

It does not yet appear from the file that plaintiff has been persistently violating discovery orders, or that no other discovery has been provided with respect to the identified issues or evidentiary matters. In addition, the motion was filed before the monetary sanctions were due, so the court does not have before it information to support a finding that the imposition of lesser sanctions, monetary, has been ineffective. In such circumstances, the motion is not granted, but plaintiff is ordered one final time to provide the discovery, and to pay further monetary sanctions. The court issues such a “last chance” order here. Defendant’s motion for discovery sanctions is denied without prejudice.

Monetary Sanctions

Defendant requests further monetary sanctions.

CCP § 2031.300(c) provides that for failure to obey a court order compelling response to a document demand, “In lieu of or in addition to” an issue, evidence or terminating sanction, “the court may impose a monetary sanction under Chapter 7 (commencing with Section 2023.010).”

As noted above, CCP § 2023.010 defines misuse of the discovery process to include “(g) Disobeying a court order to provide discovery.” Where there has been a misuse of the discovery process, under CCP section 2023.030 (a) the court “may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct.... If a monetary sanction is authorized by any provision of this title, the court shall impose that sanction unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” In this case, plaintiff has failed to obey a court order and plaintiff has provided evidence that she has been forced to incur expense due to this conduct.

Sanctions are awarded. The sanctions sought are $1,350.00. The attorneys fee amount is reasonable given the moving papers do go to some lengths to specify the issues to be adjudicated here. Any time to prepare a reply would also be brief in light of the lack of opposition. The court awards sanctions in the amount of $1,350.00.

RULING:

[No opposition]

UNOPPOSED Motion of Lydia Milars, Michael Germain, John Rizzo, John E. Jackson, Michael Blake, Hazel Catmull, and Leonard Engelman for Several Judgment is GRANTED.

The defendant’s counsel is ordered to submit proposed judgments to this court within 30 days and serve such proposed judgment on plaintiff by email, fax or same day delivery.

UNOPPOSED Motion of Defendant Make-Up Artists & Hair Stylists Guild- IATSE Local 706 for Discovery Sanctions is GRANTED IN PART and DENIED WITHOUT PREJUDICE as to evidentiary and issue sanctions.

The court orders plaintiff Alicia Tripi to fully comply with the court’s November 1, 2019 order with respect to Requests for Production of Documents (Set One), including the payment of monetary sanctions, within ten days. This order is a “last chance” opportunity for plaintiff to comply with the court’s orders or face more severe sanctions including a terminating sanction of dismissal of the complaint.

Further monetary sanctions in the amount of $1,350.00 [$1,350 requested] are awarded against plaintiff Alicia Trippi, payable within 30 days. CCP§§ 2031.300(c), 2023.010(g) and 2023.030(a).

Case Number: EC062256    Hearing Date: November 01, 2019    Dept: NCD

TENTATIVE RULING

Calendar: 10

Date: 11/1/19

Case No: EC 062256 Trial Date: None Set

Case Name: Tripi v. Make-Up Artists & Hair Stylists Guild—IATSE Local 706, et al.

DISCOVERY MOTIONS (4 Motions)

MOTION TO DISMISS

Moving Party: Defendant Make-Up Artists & Hair Stylists Guild- IATSE Local 706 (Discovery)

Cross-Complainants Lydia Milars, Michael Germain, John Rizzo, John E. Jackson, Michael Blake, Hazel Catmull (Dismiss)

Responding Party: Plaintiff Alicia M. Trippi (No Opposition)

RELIEF REQUESTED:

Responses to Form Interrogatories, General and Employment, Requests for Production, Set One,

Order Deeming Requests for Admissions, Set One, Admitted

Dismiss as moot cross-complaint against cross-defendant Alicia M. Tripi

CHRONOLOGY

Date Discovery served: March 7, 2017

Date Responses served: NO RESPONSES SERVED

Date Motion served: October 4, 2019 Timely

OPPOSITION:

No opposition.

ANALYSIS:

Discovery Motions

Interrogatories and Documents

Under CCP § 2030.290, “If a party to whom interrogatories are directed fails to serve a timely response,” that party “waives any legal right to exercise the option to produce writings...as well as any objection to the interrogatories, including one based on privilege or on the protection for work product...” Under subdivision (b), “The party propounding the interrogatories may move for an order compelling response to the interrogatories.” CCP §2031.300 contains similar provisions with respect to requests to produce documents.

In this case, interrogatories and document production demands have been directed to plaintiff and plaintiff has failed to provide timely responses. The discovery responses were due by April 11, 2017, so were overdue by the time plaintiff’s Notice of Appeal was filed on April 17, 2019, and the stay imposed. Defendant has appropriately moved for orders to compel. Accordingly, responding party has waived the option to produce writings, as well as all objections, and is ordered to respond.

Requests for Admissions

Under CCP § 2033.280, a party who fails to serve a timely response to requests for admissions “waives any objection to the requests….” In addition, the requesting party may move for an order that “the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted, as well as for a monetary sanction....” CCP § 2033.280(b). The Code specifies that “The court shall make this order, unless it finds that the party to whom the requests for admissions have been directed has served, before the hearing on the motion, a proposed response to the request for admissions that is in substantial compliance with Section 2033.220.” CCP § 2033.280(c).

In this case, requests for admissions were served on plaintiff, she has failed to serve timely responses, and defendant has filed this noticed motion requesting an order that the requests be deemed admitted as truth. Unless a satisfactory response is served before the hearing, the court must grant the motion.

Sanctions

With respect to Requests for Admissions, CCP § 2033.280(c) provides:

“It is mandatory that the court impose a monetary sanction under Chapter 7 (commencing with section 2023.010) on the party or attorney, or both, whose failure to serve a timely response to requests for admissions necessitated this motion.”

With respect to interrogatories, under CCP § 2030.290(c), “The court shall impose a monetary sanction… against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a response to interrogatories, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” A similar provision applies to document demands. See CCP § 2031.300(c).

CCP § 2023.010 provides that misuse of the discovery process includes “(d) Failing to respond or to submit to an authorized method of discovery.” Where there has been such conduct, under CCP § 2023.030(a), “The court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct....If a monetary sanction is authorized” by the statute, “ the court shall impose that sanction unless it finds that the one subject to the sanction acted with substantial justification or that the other circumstances make the imposition of the sanction unjust.” CCP § 2023.030(a).

Under CRC Rule 3.1348(a): “The court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed.”

The burden is on the party subject to sanctions to show substantial justification or injustice. Mattco Forge, Inc. v. Arthur Young & Co. (1990, 2nd Dist.) 223 Cal.App.3d 1429, 1436.

In this case, plaintiff has failed to respond to an authorized method of discovery and defendant has provided evidence that defendant has incurred expenses as a result of the conduct. Since the motions are unopposed, there is no evidence that the imposition of sanctions would be unjust. Defendant requests $5,767.50 for each motion, which is extremely high for motions of this nature, includes time spent by two attorneys at high billing rates.

Accordingly, the court reduces the sanctions to $1,350.00 for a total of 3 hours at $450.00 per hour per motion due to no opposition filed plus filing fee of $60.00 per motion with one motion calculated at 4 hours for 1 hour to attend court hearing so that total attorneys fees per that one motion will be calculated at $1,800.00.

Motion to Dismiss

Factual Background

Plaintiff Alicia Tripi brings this action against her labor union, defendant the Make-Up Artists & Hair Stylists Guild IATSE Local 706 (the “Union”), and several individual defendants alleged to have been members of its Executive Board, officers, or otherwise affiliated, alleging that she is a 61-year-old woman of Hispanic national origin, and has filed several complaints with the United States Employment Opportunity Commission alleging discrimination and retaliation against the Union. Plaintiff alleges that due to the conduct of defendants she has not been rehired for jobs for which she had originally been hired, has been the subject of defamatory, discriminatory and retaliatory statements made by the Union, defendants and various members, and has been blacklisted by the Union, so has not received job referrals from the Union.

It is also alleged that the Union’s Availability List policies, in effect requiring the dispatcher to fill assignments first from a “Trainee” list, then from a “Key” list and finally from a “Department Head” list, is discriminatory as it disproportionately impacts older Union members such as plaintiff.

Plaintiff also alleges that she has been subject to disparate treatment due to her national origin, as she is being black-listed by the Union even though her dues were all paid, while another white member who was delinquent on her dues was being approved for additional double dipping work by the Union Assistant Business Representative, who has a history of incidents of discrimination against Hispanic women.

The Union and the individual defendants filed special motions to strike in response to the complaint, which were originally heard on September 26, 2014. The court, Judge Doyle presiding, denied the motion and joinder/motion as follows:

“Defendants’ Special Motion to Strike and Joinder are DENIED. The moving papers fail to establish that the subject claims arise out of protected activity, that is, it has not been established that the gravamen of the claims involves statements made in connection with an issue of public interest.”

Defendants appealed the ruling. The unpublished court of appeal decision was filed on June 14, 2016. The court of appeal reversed the trial court order in part and remanded as follows:

“The trial court’s order is reversed insofar as it pertains to the first and sixth causes of action. As to the fifth cause of action, the trial court’s order is reversed insofar as the fifth cause of action derives from the first and sixth causes of action and is affirmed insofar as the fifth cause of action derives from the second, third, and fourth causes of action. The matter is remanded for further proceedings in accordance with the opinions expressed herein.”

[Court of Appeal Decision, p. 34].

The Court of Appeal’s Decision, Disposition, also provides, “Appellants Milars, Germain, Rizzo, Jackson, Blake, Catmill, and Engelman are awarded costs.”

Specifically, the court of appeal found that the following communications constitute conduct or communication in connection with a public issue or an issue of public interest, which support the claims for retaliation (first cause of action against Union), aiding and abetting retaliation (sixth cause of action against individual defendants), and to the extent relied upon, the claim for failure to prevent discrimination and harassment (fifth cause of action against Union):

  1. Defendant Blake’s statements made on the Facebook forum (concerning proposed CBA)
  2. Statements made at the November 21, 2010 general membership meeting (considering Executive Board’s findings on allegations that two of high-ranking leaders had breached their fiduciary duties, including credibility of Tripi, relevant to the accuracy of her accusations).
  3. Affidavit of Charges filed by Milars and Germaine and processed by Jackson, and Rizzo’s comments (at May 22, 2011 meeting) related to Tripi’s alleged refusal to answer questions (intertwined with Union’s investigation of Tripi’s accusations against Union leadership)

[Court of Appeal Decision, p. 13-20].

The motions were then scheduled by the trial court for hearing to address the second prong of the anti-SLAPP analysis in connection with the first and fifth causes of action brought against the Union, and the sixth cause of action as brought against the individual defendants.

The court permitted the filing of supplemental papers. Plaintiff did not timely file or serve supplemental papers.

The matters were originally set to be heard on November 18, 2016.

On November 16, 2016, plaintiff gave notice to counsel for defendants that she intended to appear ex parte for an extension of time to file an opposition brief. On November 17, 2016, counsel for defendants appeared in court, but plaintiff did not appear, and the ex parte application was not filed, so the court placed the matter off-calendar.

On November 18, 2016, plaintiff appeared at the hearing and requested a continuance, which the court granted, and continued the matters to 2/10/17, and ordered that plaintiff’s oppositions were to be served and filed by January 20, 2017. The matters were then continued to February 17, 2017. No further oppositions were served or filed by plaintiff. Defendants filed sur-replies indicating that no further papers had been served by plaintiff.

On February 17, 2017, plaintiff and defendants appeared at the hearing, and the court published its detailed tentative. The special motion to strike (SLAPP suit) brought by the individual defendants was granted, the court finding that plaintiff had failed to establish a probability of success on the second prong of the anti-SLAPP statute by demonstrating by admissible evidence that plaintiff could overcome the defense of immunity of the individuals to individual liability, and, as to all defendants other than defendant Leonard Engelman, the defense that plaintiff had failed to exhaust the union’s internal remedies prior to resorting to this civil action.

On April 17, 2017, plaintiff Tripi, in pro per, filed a Notice of Appeal of the June 1, 2016 of the decision by the court of appeal, and also of the February 17, 2017 rulings.

On July 14, 2017, the court heard a motion by the individual defendants for attorneys’ fees as the prevailing parties on the special motion to strike. Tripi did not file an opposition to the fee motion, but one day before the hearing filed an ex parte application to stay all proceedings relating to the attorney fees and costs. The court denied the ex parte application and awarded $280,327.35 in attorneys’ fees and costs to the individual defendants pursuant to CCP § 425.16.

On September 12, 2017, Tripi filed another notice of appeal, again specifying the June 14, 2016 decision in the first appeal as well as the July 14, 2017 ruling on the motion for attorneys’ fees.

The appeals were consolidated, and on May 9, 2019, the court of appeal filed its unpublished opinion, dismissing the appeals from the original court of appeal decision, as that appellate decision was not a judgment that would be reviewable by the court of appeal, and such an appeal would also be untimely.

The court of appeal also found that no cognizable issue had been raised with respect to the February 17, 2017 ruling on the anti-SLAPP motion or the July 14, 2017 ruling on the motion for attorneys’ fees. The trial court orders were affirmed, and the Disposition states:

“Respondents shall recover their costs on appeal. Further, as requested, respondents shall recover reasonable attorney fees incurred in defending the appeal, in an amount to be determined by the trial court. (§425.16, subd. (c)(1); GeneThera, Inc. v. Troy & Gould Professional Corp. (2009) 171 Cal.App.4th 901, 910-911.)”

[Court of Appeal Decision II, p. 7].

On July 30, 2019, the remittitur was filed with this court.

On October 4, 2019, the court heard a motion by the individual defendants for their attorney fees on appeal, which was granted, the court awarding $79,678.10.

Substantive

The individual defendants, who filed a cross-complaint in this action, seek an order dismissing the cross-complaint, now that the issues against them and the attorney fees on appeal issue has been fully resolved.

It is not clear why this motion is brought or why the matter was not addressed by the simple filing by the cross-complainants of a Request for Dismissal.

Cross-complainants rely on CCP § 581 (b)(1), under which an action may be dismissed “upon written request of the plaintiff to the clerk, filed with papers in the case, or by oral or written request to the court at any time before the actual commencement of trial, upon payment of the costs, if any.” Under subdivision (a), “plaintiff” includes a cross-complainant and “complaint” includes a cross-complaint.

The motion concedes that the dismissal would be a voluntary dismissal, which cross-complainants are free to request and obtain in this matter.

It may be that the motion is made because cross-complainants have been unable to obtain an agreement with cross-defendant that each party is to bear its own costs and fees. The motion seeks an order from the court dismissing the cross-complaint as moot, with each party to bear its own costs and fees in connection with the cross-complaint. There is no legal authority cited or legal argument made pursuant to which the court can do anything other than dismiss the cross-complaint at the request of cross-complainants. The motion accordingly is granted in part, with the cross-complaint dismissed, and no order concerning mootness or costs and fees. It should be specified at the hearing whether the dismissal should be with or without prejudice.

RULING:

[No opposition]

Motion of Defendant Make-Up Artists & Hair Stylists Guild’s to Compel Responses to Form Interrogatories—General [Set One] is GRANTED.

Plaintiff Alicia M. Tripi is ordered to serve responses to Form Interrogatories—General, Set No. 1, without objection, within 10 days.

Monetary sanctions in the amount of $ $1,800.00 [$5,767.50 requested] are awarded against plaintiff Alicia M. Tripi, payable within 30 days. CCP §§ 2030.290(c), 2023.010(d), 2023.030(a).

Motion of Defendant Make-Up Artists & Hair Stylists Guild’s to Compel Responses to Form Interrogatories—Employment [Set One] is GRANTED.

Plaintiff Alicia M. Tripi is ordered to serve responses to Form Interrogatories—Employment, Set No. 1, without objection, within 10 days.

Monetary sanctions in the amount of $1,350.00 [$5,767.50 requested] are awarded against plaintiff Alicia M. Tripi, payable within 30 days. CCP §§ 2030.290(c), 2023.010(d), 2023.030(a).

Motion of Defendant Make-Up Artists & Hair Stylists Guild’s to Compel Responses to Requests for Production is GRANTED.

Plaintiff Alicia M. Tripi is ordered to serve responses to Defendants’ Requests for Production (Set One), without objection, and to permit inspection and copying, within 10 days.

Monetary sanctions in the amount of $1,350.00 [$5,767.50 requested] are awarded against plaintiff Alicia M. Tripi, payable within 30 days. CCP §§ 2031.300(c), 2023.010(d), 2023.030(a).

Motion of Defendant Make-Up Artists & Hair Stylists Guild’s for Order that the Truth of All Matters Specified in Requests for Admissions to Plaintiff (Set One) be Deemed Admitted is GRANTED.

Plaintiff Alicia M. Tripi has failed to serve timely responses substantially complying with the provisions of CCP § 2033.220 prior to the hearing on this motion. The court therefore orders that all matters specified in Requests for Admissions to Plaintiff, Set One, are deemed admitted as true, pursuant to CCP § 2033.280(c).

Monetary sanctions in the amount of $1,350.00 [$5,767.50 requested] are awarded against plaintiff Alicia M. Tripi, payable within 30 days. CCP §§ 2033.280(c), 2023.010(d), 2023.030(a).

Or, if substantially compliant responses served prior to hearing:

Motion to Have Requests for Admissions Deemed Admitted is DENIED. The court finds that plaintiff Tripi has served responses substantially complying with the provisions of CCP § 2033.220 prior to the hearing on this motion.

However, mandatory monetary sanctions are awarded against plaintiff Tripi pursuant to CCP § 2033.280(c) (“It is mandatory that the court impose a monetary sanction under Chapter 7 (commencing with section 2023.010) on the party or attorney, or both, whose failure to serve a timely response to requests for admissions necessitated this motion”). Monetary sanctions in the amount of $1,350.00 [$5,767.50 requested] are awarded against plaintiff Alicia M. Tripi payable within 30 days. CCP §§ 2033.280(c), 2023.010(d), 2023.030(a).

Motion to Voluntarily Dismiss as Moot Cross-Complaint by Cross-Complainants is GRANTED in part. The court construes the motion as a request under CCP § 581(b)(1) for dismissal of the cross-complaint. The cross-complaint is accordingly ordered voluntarily dismissed by the moving parties with/without prejudice, as per cross-complaints specification of dismissal as with or without prejudice.

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