This case was last updated from Los Angeles County Superior Courts on 05/28/2019 at 18:17:58 (UTC).

CRAIG ROSS, ET AL., VS BOARD OF TRUSTEES OF CAL. STATE UNIV.

Case Summary

On 03/15/2016 CRAIG ROSS, filed a Contract - Other Contract lawsuit against BOARD OF TRUSTEES OF CAL STATE UNIV. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are GERALD ROSENBERG, LISA HART COLE, H. JAY FORD III and BOBBI TILLMON. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****5558

  • Filing Date:

    03/15/2016

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Other Contract

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

GERALD ROSENBERG

LISA HART COLE

H. JAY FORD III

BOBBI TILLMON

 

Party Details

Plaintiffs

OPERSTEIN NATALIE

ROSS CRAIG

Defendants

BOARD OF TRUSTEES OF CAL. STATE UNIVERSIT

BOARD OF TRUSTEES OF CAIFORNIA STATE UNIVERSITY

Attorney/Law Firm Details

Defendant Attorneys

KAMALA D HARRIS ATTORNEY GENERAL OF CA

ELISABETH FRATER

SCHREIBER MARK

 

Court Documents

Proof of Service (not Summons and Complaint)

7/13/2016: Proof of Service (not Summons and Complaint)

Unknown

6/16/2017: Unknown

Proof of Service (not Summons and Complaint)

6/23/2017: Proof of Service (not Summons and Complaint)

Unknown

6/27/2017: Unknown

Opposition

10/16/2017: Opposition

Memorandum of Points & Authorities

10/20/2017: Memorandum of Points & Authorities

Notice of Ruling

1/2/2018: Notice of Ruling

Unknown

1/5/2018: Unknown

Brief

1/10/2018: Brief

Unknown

2/2/2018: Unknown

Proof of Service (not Summons and Complaint)

4/16/2018: Proof of Service (not Summons and Complaint)

Unknown

5/15/2018: Unknown

Case Management Statement

5/16/2018: Case Management Statement

Proof of Service (not Summons and Complaint)

6/5/2018: Proof of Service (not Summons and Complaint)

Request

7/25/2018: Request

Notice of Ruling

7/25/2018: Notice of Ruling

Unknown

9/7/2018: Unknown

Minute Order

2/26/2019: Minute Order

203 More Documents Available

 

Docket Entries

  • 02/26/2019
  • at 08:30 AM in Department O; Case Management Conference - Held - Continued

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  • 02/26/2019
  • Opposition (Joint Opposition to Defendant's Failure to File and Serve an Updated Case Management Statement and Request for Continuance of CMC); Filed by Natalie Operstein (Plaintiff); Craig Ross (Plaintiff)

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  • 02/26/2019
  • Minute Order ( (Case Management Conference)); Filed by Clerk

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  • 02/26/2019
  • Notice of Ruling; Filed by Board of Trustees of Caifornia State University (Defendant)

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  • 02/22/2019
  • Memorandum of Points & Authorities; Filed by Board of Trustees of Caifornia State University (Defendant)

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  • 02/22/2019
  • Request for Judicial Notice; Filed by Board of Trustees of Caifornia State University (Defendant)

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  • 02/22/2019
  • Demurrer - with Motion to Strike (CCP 430.10); Filed by Board of Trustees of Caifornia State University (Defendant)

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  • 02/22/2019
  • Declaration (DECLARATION OF DEMURRING OR MOVING PART REGARDING MEET AND CONFER); Filed by Board of Trustees of Caifornia State University (Defendant)

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  • 02/22/2019
  • Memorandum (MEMORANDUM IN SUPPORT OF MOTION TO STRIKE); Filed by Board of Trustees of Caifornia State University (Defendant)

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  • 02/22/2019
  • Motion to Strike (not initial pleading); Filed by Board of Trustees of Caifornia State University (Defendant)

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462 More Docket Entries
  • 05/16/2016
  • Notice of Change of Address or Other Contact Information; Filed by Craig Ross (Plaintiff)

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  • 03/24/2016
  • at 08:30 AM in Department K; Unknown Event Type - Held

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  • 03/24/2016
  • at 08:30 am in Department WEK, Gerald Rosenberg, Presiding; Affidavit of Prejudice - Completed

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  • 03/24/2016
  • Minute order entered: 2016-03-24 00:00:00; Filed by Clerk

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  • 03/16/2016
  • CCP 170.6 Application Filed ( AGAINST JUDGE ROSENBERG); Filed by Plaintiff & Plaintiff In Pro Per

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  • 03/16/2016
  • Challenge To Judicial Officer - Peremptory (170.6); Filed by Craig Ross (Plaintiff)

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  • 03/15/2016
  • Summons Filed; Filed by Plaintiff & Plaintiff In Pro Per

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  • 03/15/2016
  • Complaint; Filed by Natalie Operstein (Plaintiff); Craig Ross (Plaintiff)

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  • 03/15/2016
  • Summons; Filed by Plaintiff

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  • 03/15/2016
  • Complaint Filed

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Tentative Rulings

Case Number: SC125558    Hearing Date: May 25, 2021    Dept: O

Case Name: Ross, et al. v. Board of Trustees of California State University, et al

Case No.: SC125558

Complaint Filed: 3/15/16

Hearing Date: 5-25-21

Discovery c/o: 5-7-21

Calendar No.: 9

Discovery Motion c/o: 5-24-21

Service: OK

Trial Date: 6-7-21

SUBJECT: MOTION TO COMPEL COMPLIANCE WITH COURT’S ORDERS AND FOR TERMINATING, ISSUE AND EVIDENCE SANCTIONS

MOVING PARTY: (1) Plaintiff Natalie Operstein

(2) Plaintiff Craig Ross

RESP. PARTY: Defendant Board of Trustees of California State University

TENTATIVE RULING

Plaintiffs Natalie Operstein and Craig Ross’ Joint Motion to Compel Compliance with Court’s Orders and for Terminating, Issue and Evidence Sanctions is DENIED.

Motion Cut-Off. The discovery motion cut-off date fell on 5-23-21, a Sunday. Based on CCP §2016.060, the discovery motion cut-off was extended until 5-24-21. The motion was filed timely filed more than 16 court days before the last day to hear discovery motions. Due to the congestion of the Court’s calendar, however, the then soonest available hearing date was 5-25-21. The Court, therefore, finds good cause to reopen discovery solely to hear the motions to compel discovery that otherwise were timely filed before the last day to file a noticed motion to be heard on the last day to hear motions to compel 15 days before the prior trail date of June 7, 2021

Request to Compel Compliance. Plaintiffs’ request to compel compliance is denied. Defendant produced documents in response to the Court’s August 2020 orders compelling further responses. See Dec. of N. Operstein, ¶¶13 and 14. Plaintiffs argue Defendant’s further production of documents do not fully respond to the RFPs, that no further responses were produced in response to certain RFPs, the originals were not provided for their inspection and Defendant did not produce all responsive documents as to any faculty members outside of Operstein’s department.

Plaintiffs fail to cite any authority for an order compelling “compliance” with a court’s discovery order. Based on Plaintiffs’ objection and requested relief, Plaintiffs essentially seeks to further responses. As such, the motion is subject to the requirements of CCP §2031.310, including (1) establishing timeliness under the 45-day deadline to compel furthers, which is jurisdictional (Sexton v. Supr. Ct. (1997) 58 Cal.App.4th 1403, 1410 (time limit is mandatory and jurisdictional “in the sense that it renders the court without authority to rule on motions to compel other than to deny them”); (2) a declaration attesting to good faith efforts to meet and confer prior to filing the motion; and (3) a CRC Rule 3.1354 separate statement. Plaintiffs fail to comply with any of these requirements. Plaintiffs fail to establish any of these requirements. The motion to compel compliance is DENIED.

Request for Terminating, Evidentiary and Issue Sanctions. The Court is not required to make any findings or detail with particularity the basis for its decision to impose sanctions. See Ghanooni v. Super Shuttle (1993) 20 Cal.App.4th 256, 261. However, discovery sanctions are not intended to punish but to accomplish discovery. See Newland v. Supr. Ct. (1995) 40 Cal.App.4th 608, 613. The imposition of sanctions detailed in CCP §2023.030(b) for disobedience to Court's orders lies entirely within the court's sound discretion and is only subject to reversal for manifest abuse exceeding the bounds of reason. See Lang v. Hochman (2000) 77 Cal.App.4th 1225, 1244.

“The discovery statutes…evince an incremental approach to discovery sanctions, starting with monetary sanctions and ending with the ultimate sanction of termination. Although in extreme cases a court has the authority to order a terminating sanction as a first measure, a terminating sanction should generally not be imposed until the court has attempted less severe alternatives and found them to be unsuccessful and/or the record clearly shows lesser sanctions would be ineffective.” Lopez v. Watchtower Bible & Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 604.

Plaintiffs fail to clearly establish that Defendant engaged in discovery abuse. Plaintiffs also fail to establish that sanctions are required to accomplish discovery under the facts presented. Defendant produced documents in response to the Court’s August 2020 orders. Plaintiffs fail to submit clear evidence establishing noncompliance, and even if they had, there is no evidence that the noncompliance was willful disobedience of the Court’s orders, that Plaintiffs raised the issue in a timely manner with Defendant in an attempt at informal resolution or that Defendant unreasonably refused to produce further documents or discuss the sufficiency of the responses. The request for terminating, evidentiary or issue sanctions is DENIED.

Case Number: SC125558    Hearing Date: October 06, 2020    Dept: O

Case Name:    Ross, et al. v. Board of Trustees of California State University, et al

Case No.: SC125558

Complaint Filed: 3/15/16

Hearing Date: 10-6-20

Discovery c/o: 5-7-21

Calendar No.: 4

Discovery Motion c/o: 5-24-21

Service: OK

Trial Date: 6-7-21

SUBJECT: MOTION FOR SUMMARY ADJUDICATION

MOVING PARTY:  Defendant Board of Trustees of California State University

RESP. PARTY: Plaintiffs Craig Ross and Natalie Operstein

TENTATIVE RULING

Defendant Board of Trustees of CSU’s Motion for Summary Adjudication is DENIED.

I.  3rd cause of action for promissory estoppel—DENY

A. Defendant fails to establish that the promise of lifetime employment was supported by bargained for consideration

Under the doctrine of promissory estoppel, “a promisor is bound when he should reasonably expect a substantial change of position, either by act or forbearance, in reliance on his promise, if injustice can be avoided only by its enforcement.  The purpose of this doctrine is to make a promise binding, under certain circumstances, without consideration in the usual sense of something bargained for and given in exchange.  If the promisee's performance was requested at the time the promisor made his promise and that performance was bargained for, the doctrine is inapplicable.”  Youngman v. Nevada Irr. Dist. (1969) 70 Cal.2d 240, 249.  “[W]here the promisee's reliance was bargained for, the law of consideration applies; and it is only where the reliance was unbargained for that there is room for application of the doctrine of promissory estoppel.”  Id. at 250. 

“[P]laintiffs allege that the superintendent promised Youngman that he would be granted a merit step increase in April of each year and the Youngman relied upon this promise in accepting employment with the district, continuing in its employ, and refraining from accepting a job elsewhere. It seems clear under these allegations that the district's promise, through its agent, that Youngman would be afforded a raise in April of each year, was part of the bargain under which Youngman entered the district's employ. By remaining in his position and presumably rendering satisfactory service he performed his part of the bargain and rendered the consideration called for by the employment contract. There is no occasion, therefore, to rely upon the doctrine of promissory estoppel, which is necessary only to supply consideration for a promise when no actual consideration was given by the promisee.”  Youngman v. Nevada Irr. Dist. (1969) 70 Cal.2d 240, 250.

Defendant moves for summary adjudication based on Youngman, arguing that Plaintiff Operstein’s 6-10-11 and 2-18-12 term agreements were bargained for consideration in exchange for Dean Angela Volpe’s March 2011 promise of lifetime employment.  While it is undisputed for purposes of summary adjudication that (1) Dean Volpe offered Plaintiff Operstein a lifetime tenure contract and (2) Plaintiff agreed to and performed under three separate term employment agreements on 6-10-11, 2-18-13 and June 2014, there is no evidence that Plaintiff Operstein’s term employment agreements were bargained for consideration in exchange for Volpe’s promise of lifetime employment.  See Defendant’s SSUMF Nos. 1-22. 

Defendant relies on Operstein’s deposition testimony from the US District Court case.  Operstein testified that she was offered a lifetime contract with the “covenants period to be fulfilled with the first few years.”  See Defendant’s Compendium of Evidence (“COE”), Ex. A, 65:2-6.  Operstein repeatedly testified that Volpe’s promise was “an offer of lifetime employment with period of covenants during which the covenants for lifetime employment were to be fulfilled.”  Id. at 79:9-11.  Operstein’s testimony does not establish as an issue of law that the term agreements were “bargained for” consideration, because it is too vague and ambiguous. Unlike the complaint allegations in Youngman, Opertsein’s testimony does not clearly and unequivocally admit that Volpe obtained promises of term employment from Operstein in exchange for lifetime employment.  

Defendant also argues that it promised to give Plaintiff a probationary tenure track position under the 6-20-11 Term Agreement and in exchange for that promise, Plaintiff promised to use her efforts to fulfill her obligations and duties as a probationary tenure track professor.  This only establishes that Plaintiff agreed to work under the term agreement in exchange for term employment.  It does not establish that parties bargained for Plaintiff to work under the term agreement in exchange for the oral promise of tenure. 

Defendant fails to establish with undisputed facts that Plaintiff Operstein’s term employment was bargained for consideration in exchange for lifetime employment.  The motion for summary adjudication on grounds of a promise supported by consideration is DENIED. 

B.  Operstein’s promissory estoppel claim is not clearly barred by the 2-year statue of limitations under CCP §339(1) .

The statute of limitations for promissory estoppel is 2-years for breach of an oral agreement under CCP §339(1).  See Newport Harbor Ventures, LLC v. Morris Cerullo World Evangelism (2016) 6 Cal.App.5th 1207, 1224.  Since promissory estoppel is akin to a breach of contract claim (US Ecology v. State of California (2005) 129 Cal.App.4th 887, 902–905), its accrual would apparently commence when the breach occurred, which is the general rule for accrual of causes of action sounding in contract.  See Reichert v. General Ins. Co. (1968) 68 Cal.2d 822, 831; 3 Witkin, Cal. Procedure (5th ed. 2008) Actions, § 520, p. 664. 

According to Defendant, the alleged promise or offer was one for a lifetime tenure contract of employment.  See Defendant’s SSUMF No. 1.  If the alleged promise is so characterized, a breach of that agreement would be termination of Plaintiff Operstein’s employment during her lifetime, which did not occur until after she completed her terminal one-year appointment in 2016.  See Defendant’s SSUMF No. 22.  According to Plaintiff, she was not terminated until 2016.  See Plaintiffs’ Evidence, ¶7.  Using Defendant’s characterization of the promise, Plaintiff’s claim for promissory estoppel did not accrue until 2016, the same year she filed this action. 

Plaintiff also disputes Defendant’s characterization of the promise alleged in the 3rd cause of action.  According to Plaintiff, Defendant did not make a straightforward promise of lifetime employment.  Plaintiff testifies Defendant promised automatic tenure or early tenure if she satisfied certain requirements, i.e. satisfaction of term “tenure” contracts.  See Plaintiffs’ Evidence, Dec. of N. Operstein, ¶9 and TAC, ¶¶8 and 60.  Based on Plaintiff’s allegations and testimony regarding the promise sued upon, Defendant breached its promise of tenure when she was terminated in 2016 after having fulfilled those requirements for tenure and early tenure.  See TAC filed on 1-22-19, ¶61.

The undisputed facts therefore do not establish the 3rd cause of action for promissory estoppel is barred by the 2-year SOL under CCP §339(1).  The motion for summary adjudication based on SOL is DENIED.

II.  12th cause of action for violation of Labor C. 970—DENY

“No person, or agent or officer thereof, directly or indirectly, shall influence, persuade, or engage any person to change from one place to another in this State or from any place outside to any place within the State, or from any place within the State to any place outside, for the purpose of working in any branch of labor, through or by means of knowingly false representations, whether spoken, written, or advertised in printed form, concerning either: (a) The kind, character, or existence of such work; (b) The length of time such work will last, or the compensation therefor…”  Labor C. §970.  Claims under Labor Code §970 have been held subject to a one-year statute of limitations under CCP §340(a) for actions upon statute for a “penalty or forfeiture.”  See Munoz v. Kaiser Steel Corp. (1984) 156 Cal.App.3d 965, 980; Aguilera v. Pirellia Armstrong Tire Corp. (9th Cir. 2000) 223 F.3d 1010, 1018. 

Defendant fails to cite any California authority discussing when a cause of action under Labor Code §970 accrues.  Defendant relies upon authority for the general proposition that an action accrues when a plaintiff suffers harm due to the defendant’s wrongdoing.  See Davies v. Krasna (1975) 14 Cal.3d 502, 513; Marketing West, Inc. v. Sanyon Fisher (USA) Corp. (1992) 6 Cal.App.4th 603, 614.  The Ninth Circuit addressed the issue directly and held that a Labor Code §970 cause of action accrues upon the employee plaintiff’s dismissal.  See Aguilera v. Pirelli Armstrong Tire Corp. (2000) 223 F.3d 1010, 1018. 

Based on Defendant’s own evidence, Plaintiff did not suffer appreciable harm from Defendant’s breach of the promise of lifetime employment until she was terminated in 2016.  This is in line with the reasoning in Aguilera that for purpose of a Labor Code §970 claim, the employee suffers harm when terminated, not when he or she discovers the falsity of the employer’s representation. 

Moreover, Defendant fails to establish that Plaintiff suffered harm when she executed the term agreements.  As discussed in connection with the 3rd cause of action, Defendant did not allegedly make an unconditional promise of lifetime employment.  Instead, Plaintiff claims Defendant promised Plaintiff tenure or early tenure if she satisfied certain requirements, specifically successful completion of term “tenure” agreements.  As such, unlike the plaintiffs in Marketing West, when Plaintiff signed the term agreements, she did not agree to terms inconsistent with the prior promise of lifetime employment or relinquish a right or benefit previously promised to her.  Marketing West, Inc., supra, 6 Cal.App.4th at 614 (plaintiffs suffered harm when they signed written employment agreements relinquishing their right to only be terminated for good cause).

Defendant fails to establish that the complaint was filed more than a year after Plaintiff suffered harm as a result of Defendant’s violation of Labor Code §970, or more than a year after Plaintiff was terminated.  Defendant’s Motion for Summary Adjudication of the 12th cause of action for violation of Labor Code §970 is DENIED. 

Plaintiffs’ Objections—OVERRULED

Defendants’ Objections—OVERRULED

Case Number: SC125558    Hearing Date: September 10, 2020    Dept: O

Case Name: Ross, et al. v. Board of Trustees of California State University, et al

Case No.: SC125558

Complaint Filed: 3/15/16

Hearing Date: 9-10-20

Discovery c/o: 5-7-21

Calendar No.: 6

Discovery Motion c/o: 5-24-21

Service: OK

Trial Date: 6-7-21

SUBJECT: MOTION FOR AN ORDER COMPELLING FURTHER RESPONSES TO PLAINTIFF ROSS’S FORM ROG 17.1; PLAINTIFF ROSS’S REQUESTS FOR ADMISSION (SET TWO); AND PLAINTIFF’S OPERSTEIN’S FORM INTERROGATORIES (SET ONE)

MOVING PARTY: Plaintiffs Craig Ross and Natalie Operstein

RESP. PARTY: Defendant Board of Trustees of California State University

TENTATIVE RULING

Plaintiffs’ Motion for Order Compelling Further Responses to Plaintiff Ross’s Form Rog 17.1, Plaintiff Ross’s Requests for Admission (Set Two) and Plaintiff’s Operstein’s Form Interrogatories (Set One) is GRANTED IN PART AND DENIED IN PART.

The Parties’ Meet & Confer Effort:

Parties met and conferred on 8-13-20 after this motion was filed. After their meet and confer efforts, its appears are only five discovery responses that remain in dispute: (1) Plaintiff Operstein’s Form Interrogatories (Employment Law)(set one) Nos. 201.6, 209.2, 215.1 and 215.2 and (2) Plaintiff Ross’s Form Interrogatories (General)(set one) No. 17.1. See Opposition, Dec. of L. Franco, ¶¶6, 13, 17, 20 and 22. Defendant states Plaintiffs either withdrew or never challenged RFA (set two) Nos. 51, 54, 57, 58, 61 and 65. Id. at ¶6. Defendant agrees to serve further responses to all remaining discovery responses in dispute. Id. at ¶¶7-12, 14-16, 18-19 and 21. Ross argues Defendant agreed to provide further responses to the RFA’s as well.

Ross’s motion to compel further responses to Requests for Admission (Set Two) and Form Interrogatory 17.1:

The Court reviewed Defendant’s responses to the requests for admission and Form Interrogatory 17.1. The responses are sufficient. Ross’s motion for a further response is DENIED.

Operstein’s Motion to Compel further responses to Form Interrogatory No. 201.6

Defendant’s objection to Form Interrogatory 201.6 is sustained Given the nature of Operstein’s employment, the reference to her “former job duties” is too vague. Based on Defendant’s discussion of their meet and confer efforts, Operstein is attempting to ascertain whether any other person performed her “former job duties” after she ceased working for Defendant. As Operstein explained, she is attempting to ascertain whether and who took over her course load as a lecturer after she left Defendant’s employment. Defendant’s assertion that other faculty always taught the same courses as Operstein intentionally misses the point. Defendant is to provide further responses to Form Interrogatory No. 201.6 answering (1) whether any person was assigned to teach the courses that were previously or would have been assigned to Operstein after she left Defendant’s employment; and (2) if so, provide the information requested in Form Interrogatory 201.6(a)-(c).

Operstein’s Form Interrogatory No. 209.2

Defendant’s objection to Form Interrogatory No. 201.6 is sustained, in part. Requiring Defendant to identify any and all lawsuits filed by an employee within the past 10 years is overbroad, burdensome and will necessarily produce a large amount of irrelevant information. Defendant is to provide further responses to Form Interrogatory No. 209.2 by identifying any and all lawsuits filed against Defendant (all CSU campuses) within the past ten years alleging FEHA claims.

Operstein’s Form Interrogatory NoS. 215.1 and 215.2

Defendant’s objections to Form Interrogatory No. 215.1 and 215.2 are overruled. Form Interrogatory No. 215.1 seeks the names and contact of information of any witnesses interviewed by Defendant and/or its agents regarding the adverse employment action. Form Interrogatory 215.2 seeks the names and contact information of any witnesses from whom Defendant or its agents obtained written statements regarding the adverse employment action. Judicial Council Employment Form Interrogatory Nos. 215.1 and 215.2 correspond to Judicial Council General Form Interrogatory 12.2 and 12.3.

Defendant’s vagueness objection is overruled The term “adverse employment action” is not vague. Plaintiff Operstein is referring to her failure to obtain tenure and cessation of her employment due to her race, her gender and all other reasons identified.

Defendant’s objection based on the attorney client privilege is overruled. The attorney-client privilege does not protect independent facts related to a communication, that a communication took place, and the time, date and participants in the communication. See State Farm Fire & Casualty Co. v. Superior Court (1997) 54 Cal.App.4th 625, 639-640. Form Interrogatory 215.1 and 215.2 only seek facts independent of any protected communication, e.g. who Defendant’s interviewed or received witness statements from regarding the adverse employment action and those witnesses’ contact information.

Defendant’s objection based on work product doctrine is overruled. Defendant argues that witness lists are protected as attorney work product under Coito v. Sup.Ct. (State of Calif.) (2012) 54 Cal.4th 480, 502 and Nacht & Lewis Architects, Inc. v. Sup.Ct. (McCormick) (1996) 47 Cal.App.4th 214, 217.

Form Interrogatory 12.3 (EE Form Interrogatory 215.2). Nacht also held that Form Interrogatory 12.3 could, but would not necessarily, implicate the work product doctrine. Id. at 217-218. Nacht found that a list of witnesses who provided their own independent statements to counsel would not implicate work product doctrine, but a list of witnesses who were interviewed by counsel and whose interviews were recorded by counsel is entitled to work product doctrine as a matter of law. Id. (list of potential witnesses interviewed by defense counsel which interviews counsel recorded in notes or otherwise would constitute qualified work product because it would tend to reveal counsel's evaluation of the case by identifying the persons who claimed knowledge of the incident from whom counsel deemed it important to obtain statements).

In Coito v. Superior Court (2012) 54 Cal.4th 480, 486, the Supreme Court found that lists of witnesses from whom Defendant obtained written or recorded statements are not necessarily protected as attorney work product, even if the written or recorded statements were taken by an attorney. The Supreme Court agreed with Nacht that a list of witnesses who provided their own independent statements to counsel is not protected by the work product doctrine.

However, the Supreme Court found that a list of witnesses from whom an attorney took recorded statements at his or her own initiative is not necessarily work product protected as a matter of law. Id. at 501 (disagreeing with Nacht). As the Supreme Court explained, such a list will not always or even often “reflect counsel’s premeditated and carefully considered selectivity.” Id. at 501 (rejecting Nacht’s holding that such lists were protected by work product doctrine as an issue of law).. For example, “[w]here it appears that an attorney has sought to take recorded statements from all or almost all of the known witnesses to the incident, compelling a response to form interrogatory No. 12.3 is unlikely to violate the work product privilege.” Coito, supra, 54 Cal.4th at 502.

Thus, by default, a party must respond to Form Rog 12.3. If the responding party believes the work product doctrine applies in any way, the responding party must make a foundational showing of work product doctrine to justify the refusal to respond. “Because it is not evident that form interrogatory No. 12.3 implicates the policies underlying the work product privilege in all or even most cases, we hold that information responsive to form interrogatory No. 12.3 is not automatically entitled as a matter of law to absolute or qualified work product privilege. Instead, the interrogatory usually must be answered. However, an objecting party may be entitled to protection if it can make a preliminary or foundational showing that answering the interrogatory would reveal the attorney's tactics, impressions, or evaluation of the case, or would result in opposing counsel taking undue advantage of the attorney's industry or efforts.” Id. at 502.

Defendant fails to make any foundational showing that responding to Form Interrogatory 215.2 would reveal attorney tactics, impressions, evaluations of the case, or would result in opposing counsel taking undue advantage of the attorney’s industry or efforts. Defendant states it has not withheld information concerning “witness statements” that were independently produced by its employees. See Defendant’s Separate Statement, Matters in Dispute 3 and 4, 10:1-7. Defendant states in general and conclusory terms that responding to Form Interrogatory 215.1 would necessarily reveal a culling process that reflects attorney strategy, tactics and though processes. See Defendant’s Separate Statement, Matters in Dispute 3 and 4, 10:8-27 to 11:1-14; Dec. of L. Franco, ¶20. The Court finds such statements insufficient. As such, Defendant is ordered to provide further responses to Form Interrogatory 215.2.

Form Interrogatory 12.2 (EE Form Interrogatory 215.1) In Nacht & Lewis Architects, Inc. v. Superior Court (1996) 47 Cal.App.4th 214, 217, the Court of Appeals held that Form Rog 12.2 necessarily implicated the work product doctrine. Nacht held “[c]ompelled production of a list of potential witnesses interviewed by opposing counsel would necessarily reflect counsel's evaluation of the case by revealing which witnesses or persons who claimed knowledge of the incident (already identified by defendants' response to interrogatory 12.1) counsel deemed important enough to interview.” Nacht, supra, 47 Cal.App.4th at 217.

While Coito discussed Form Interrogatory 12.3, not Form Interrogatory 12.2, its reasoning as to why lists of witnesses whose interviews were recorded by counsel are not automatically protected applies to Form Interrogatory 12.2. McVeigh v. Recology San Francisco (2013) 213 Cal.App.4th 443, 474 (noting that Nacht’s blanket application of work product doctrine to list of witnesses interviewed by counsel was significantly limited in Coito and remanding evaluation of motion to compel list of witnesses interviewed by counsel for evaluation under Coito’s new standard). As such, Nacht’s blanket application of work product protection to all witnesses interviewed by Defendant has been superseded by Coito’s holding.

In order for a list of witnesses interviewed by Defendant to qualify for work product protection, Defendant must make a foundational showing that disclosure of the lists would reveal an attorney’s tactics, impressions, or evaluation of the case, or would result in opposing counsel taking undue advantage of the attorney’s industry or efforts. Defendant fails to make this foundational showing. Defendant states in general and conclusory terms that responding to Form Interrogatory 215.1 would necessarily reveal a culling process that reflects attorney strategy, tactics and though processes. See Defendant’s Separate Statement, Matters in Dispute 3 and 4; Dec. of L. Franco, ¶20. The Court finds such general statements insufficient. As such, Defendant is ordered to provide further responses to Form Interrogatory 215.1.

Case Number: SC125558    Hearing Date: August 27, 2020    Dept: O

Case Name: Craig Ross, et al. vs. Board Of Trustees Of Cal. State Univ.

Case No.: SC125558

Complaint Filed: 3-15-16

Hearing Date: 8-27-20

Discovery C/O: 5-7-21

Calendar No.: 6

Discover Motion C/O: 5-24-21

POS: OK

Trial Date: 6-7-21

SUBJECT: (1) Plaintiff Craig W. Ross’s Motion to Compel Further Response to Request For Production of Documents, Set Five, No. 108; Special Interrogatories, Set Three, Nos. 6, 7, and 9.

(2) Plaintiff Natalie Operstein’s Motion to Compel Further Responses to Request for Production of Documents, Set Four, No. 104; Request for Production of Documents, Set Five, No. 105.

MOVING PARTY: Plaintiffs Craig W. Ross and Natalie Operstein

RESP. PARTY: Defendant Board of Trustees of California States University

TENTATIVE RULING

Plaintiff Craig W. Ross’ Motion to Compel Further Responses to Special Interrogatories, Set Three, Nos. 6, 7, and 9 is OFF CALENDAR, WITHDRAWN BY PLAINTIFF.

Plaintiff Craig W. Ross’ Motion to Compel Further Responses to Request for Production of Documents, Set Five, No. 108 is DENIED.

Plaintiff Natalie Operstein’s Motion to Compel Further Responses to Request for Production of Documents, Set Four, No. 104 is GRANTED.

Plaintiff Natalie Operstein’s Compel Further Responses to Request for Production of Documents, Set Five, No. 105 is GRANTED.

Plaintiff Craig W. Ross (“Ross”) withdrew his Motion to Compel Further Responses to Special Interrogatories, Set Three, Nos. 6, 7, and 9 in his reply.

Ross requests a further response from Defendant Board of Trustees of California States University (“Defendant”) to Production of Documents, Set Five, No. 108 (documents listed in response to Form Interrotory 17.1), which are attachments to letters dated May 30, 2014 and June 1, 2015. Upon examining the Court records, Plaintiff Natalie Operstein (“Operstein”) did indeed attached a copy of the documents as Exhibit 4 to her Declaration in support of Ross’s motion to compel further responses filed on July 21, 2020. (Schreiber Dec. ¶ 3.) Additionally, the June 1, 2015 letter referenced only one attachment (Attachment A), and the attachment was indeed produced. (Opposition, Ex. A.)

Operstein requests further responses to Request for Production of Documents, Set Four, No. 104. Number 104 requests “All documents listed in [Defendant’s] answers to Form Interrogatories — Employment Law, Set No. 1 served on you concurrently with this production demand.” Defendant objects on grounds that the request fails to comply with CCP § 2031.030(c)(1) and (4). Defendant’s objection is overruled. Accordingly, Operstein’s motion is granted.

Operstein requests further responses to Request for Production of Documents, Set Five, No. 105. Number 105 requests “All documents listed in [Defendant’s] answers to Form Interrogatories — Employment Law, Set No. 1 served on you concurrently with this production demand.” Defendant contends that Operstein concedes that Ross propounded the identical demand (as Ross RFP No. 108) and that Defendant’s response included production of the same documents that are the subject of the instant motion to compel. (Opposition, p. 6:21-28; Ross Decl., Ex. 4.) The Court disagrees. Operstein’s requested documents here are different than that of Ross’s RFP No. 108. (Reply, p. 8:19-28.) Accordingly, Operstein’s motion is granted.

Case Number: SC125558    Hearing Date: August 11, 2020    Dept: O

Case Name: Ross, et al. v. Board of Trustees of California State University, et al
 
Case No.: SC125558 Complaint Filed: 3/15/16
Hearing Date: 8-11-20 Discovery c/o: 5-7-21
Calendar No.: 12 Discovery Motion c/o: 5-24-21
Service: OK Trial Date: 6-7-21
SUBJECT: MOTION FOR AN ORDER COMPELLING FURTHER RESPONSES TO PLAINTIFF ROSS’S PRODUCTION DEMAND (SET 2) AND PLAINTIFF OPERSTEIN’S PRODUCTION DEMANDS (SETS 1 AND 2) AND FORM INTERROGATORY 15.1
MOVING PARTY: Plaintiffs Craig Ross and Natalie Operstein 
RESP. PARTY: Defendant Board of Trustees of California State University
TENTATIVE RULING
 Plaintiffs’ Motion to Compel Further Responses to Ross’s Production Demand (Set 2), and Operstein’s Production Demand (Sets 1 and 2) is GRANTED.  Defendant is ordered to serve further responses within 20 days.  
Plaintiff’s motion to compel further response to Form Interrogatory 15.1 is denied as moot.  
Plaintiff Operstein’s RFPs (Set 1)—These Production Demands are identical to Ross’s Production Demand (Set One) and the motion is identical to Ross’s Motion to Compel Further Responses to Ross’s Production Demand (Set One) heard on 8-6-20.  The Court incorporates that ruling by reference into this ruling on Operstein’s Production Demand (Set 1).
Plaintiff Operstein’s Form Interrogatory 15.1—Defendant did not oppose the motion as to this Form Interrogatory. Defendant submitted supplemental responses to Form Interrogatory 15.1 prior to the hearing on this motion.  See Opposition filed on 7-23-20, Ex. C.  The Court finds those responses are sufficient to moot this motion.
Plaintiffs’ RFPs (Set Two)—Plaintiffs’ Production Demand (Sets Two) seek documents in support Defendant’s affirmative defenses.  Plaintiffs demonstrate good cause for production of these documents, and Defendant’s objections thereto are overruled.  Defendant did not raise any argument in opposition.  The motion is therefore granted.  
  

Case Number: SC125558    Hearing Date: August 06, 2020    Dept: O

Case Name: Ross, et al. v. Board of Trustees of California State University, et al
 
Case No.: SC125558 Complaint Filed: 3/15/16
Hearing Date: 8-6-20 Discovery c/o: 5-7-21
Calendar No.: 3 Discovery Motion c/o: 5-24-21
Service: OK Trial Date: 6-7-21
SUBJECT: (1)  MOTION FOR ORDER COMPELLING FURTHER RESPONSES TO PLAINTIFF ROSS’S PRODUCTION DEMAND SET 3 AND PLAINTIFF OPERSTEIN’S PRODUCTION DEMAND SET 3 (CRS No. 665)  (ORIGINALLY SET FOR HEARING ON 8-4-20)
(2)  MOTION TO COMPEL FURTHER RESPONSES TO PLAINTIFF ROSS’S PRODUCTION DEMAND (SET ONE)(CRS No. 122)  
MOVING PARTY: (1)  Plaintiffs Craig Ross and Natalie Operstein
(2)  Plaintiff Craig Ross 
RESP. PARTY: (1) and (2)  Defendant Board of Trustees of California State University
TENTATIVE RULING 
Plaintiffs Ross’s and Operstein’s Motions to Compel Further Responses to RFPs (Set Three) (CRS No. 665) from Defendant Board is GRANTED.  
Plaintiff Ross’s Motion to Compel Further Responses to RFPs (Set One) (CRS No. 122) from Defendant Board is GRANTED.
Parties are ordered to submit a proposed protective order as to the subject production.  Upon the Court’s execution and entry of the PO, Defendant should produce all responsive documents within 30 days.  The Court finds good cause for further production and that any third party privacy interests are outweighed by the legitimate, countervailing interest in disclosure of comparative evidence that is so often crucial to discrimination cases.  
I.  Operstein’s underlying injury is part of Ross’s loss of consortium claim and under the broad scope of discovery, Ross is entitled to conduct discovery relating to Operstein’s tort claims
An element of Ross’s claim for loss of consortium is Operstein’s tortious injury.  See Hahn v. Mirda (2007) 147 Cal.App.4th 740, 746, fn. 2.  Loss of consortium is an independent claim and in Hahn, the loss of consortium claim proceeded despite the dismissal of the underlying fraud and negligence claims by the injured spouse.  Id. at 743 and 745.  
Defendant argues that under CACI 3920, Operstein is responsible for establishing that she suffered tortious injury, not Ross, and Ross is therefore not entitled to conduct discovery into Operstein’s underlying injury.  CACI 3920 states, “If you decide that [name of injured spouse] has proved [his/her] claim against [name of defendant], you also must decide how much money, if any, will reasonably compensate [name of plaintiff] for loss of [his/her] [husband/wife]'s companionship and services…”  CACI 3920 therefore assumes that the loss of consortium claim is joined with the underlying tort claim by loss of consortium claimant’s spouse.  
However, a loss of consortium claim is not a derivative claim and need not be joined with the underlying tort claims.  “Loss of consortium is not a derivative cause of action. While the cause of action is triggered by the spouse's injury, a loss of consortium claim is separate and distinct…While joinder of a loss of consortium claim with the injured spouse's personal injury claim is encouraged, it is not mandatory and a loss of consortium claim may be maintained independently.”  Leonard v. John Crane, Inc. (2012) 206 Cal.App.4th 1274, 1279–1280.  
The scope of permissible discovery is broad and includes not only discovery of admissible evidence, but discovery of evidence that could lead to admissible evidence.  CCP §2017.010.  Operstein’s injury at Defendant’s hands is an element of Ross’s loss of consortium claim.  Discovery into Operstein’s injury is therefore within the broad scope of discovery allowed in connection with Ross’s loss of consortium claim.  
II.  Plaintiff is entitled to conduct discovery into Mueller, et al.’s applications for tenure and whether they are “similarly situated”
“Comparative evidence is evidence that the plaintiff was treated differently from others who were similarly situated but are outside the plaintiff's protected class.  Evidence that an employer treated ‘similarly situated’ employees outside the plaintiff's protected class more favorably is probative of the employer's discriminatory or retaliatory intent.   To be probative, comparative data must be directed at showing disparate treatment between employees who are ‘similarly situated’ to the plaintiff in all relevant respects.  In general, individuals are similarly situated when they have similar jobs and display similar conduct.”  Gupta v. Trustees of California State University (2019) 40 Cal.App.5th 510, 519–520.  
Plaintiff moves to compel certain documents pertaining to other professors in Operstein’s department who she claims were similarly situated.  The documents include documents submitted by these individuals as part of their application for a tenure track position, documents that pertain to their qualifications to serve as tenured professors, and documents Defendant provided these individuals in connection with those applications and course evaluations.  These individuals are Franz Mueller, Patricia Schneider-Zioga, Stephen Mexal, Lana Dalley, Martha Webber, Bonnie Williams, Brian Michael Norton, David Kelman, Nicole Seymour, April Brannon, Erin Hollis, J. Chris Westgate and Edward Pinuelas.  
Defendant argues none of these individuals are Plaintiff’s comparators and therefore discovery into their applications for tenure and other personnel information is irrelevant.  Defendant misunderstands the purpose of discovery.  Plaintiff is entitled to obtain evidence in discovery to determine whether the subject individuals are in fact Operstein’s comparators.  Moreover, the scope of discovery is not limited to admissible evidence but any matter that appears reasonably calculated to lead to the discovery of admissible evidence.”  CCP §2017.010.  
In addition, based on the individual declarations of Mueller, et al., they are all tenured professors in Plaintiff’s department at CSU.  Their connection and similarity to Plaintiff’s situation is not so remote that the RFPs are unquestionably and obviously outside the scope of permissible discovery.  The declarations confirm Plaintiff’s assertion of good cause to compel production of the documents.  
Plaintiff and the Court are also not required to accept Defendant and the subject individuals’ assessments of the similarity of their situations to Plaintiff’s.  Whether they are comparators is an issue to be litigated and subject to discovery.  
III.  The federal court action has not been deemed to have res judicata or collateral estoppel effect in this action and therefore cannot preclude discovery into the issue of Defendant’s motivation for denying Operstein’s application for tenure
Defendant argues Plaintiff cannot conduct discovery into Defendant’s motivation or reasoning for denying Plaintiff Operstein tenure.  Defendant submits the federal district court’s order granting a defense summary judgment in Ross, et al. v. White, et al. dated 7-1-19.  See Motion, Dec. of M. Schreiber, Ex. B. Defendant argues the federal court already determined that Operstein was denied tenure for legitimate reasons.  
The Court rejected Defendant’s assertion of res judicata or collateral estoppel to Plaintiff’s 20th c/a for violation of FEHA in connection with Defendant’s MJP on 6-25-20.  The federal court decision is therefore no bar to the requested discovery.  
IV.  CCP §1985.6 does not apply to RFPs served on a party to the litigation
Defendant objects on grounds that the consumer notice requirements under CCP §1985.6 have not been satisfied.  CCP §1985.6 does not apply to the RFPs at issue, because they were served on a party and are not deposition subpoenas served on a third party.  
V.  The privacy interests of Mueller, et al. do not outweigh Plaintiff’s right to discovery
“In Hill, we established a framework for evaluating potential invasions of privacy. The party asserting a privacy right must establish a legally protected privacy interest, an objectively reasonable expectation of privacy in the given circumstances, and a threatened intrusion that is serious.  The party seeking information may raise in response whatever legitimate and important countervailing interests disclosure serves, while the party seeking protection may identify feasible alternatives that serve the same interests or protective measures that would diminish the loss of privacy. A court must then balance these competing considerations.”  Williams v. Superior Court (2017) 3 Cal.5th 531, 552 (citing Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 35).  
“In general, the court should not proceed to balancing unless a satisfactory threshold showing is made. A defendant is entitled to prevail if it negates any of the three required elements.  A defendant can also prevail at the balancing stage. An otherwise actionable invasion of privacy may be legally justified if it substantively furthers one or more legitimate competing interests. (Hill, at p. 40, 26 Cal.Rptr.2d 834, 865 P.2d 633.) Conversely, the invasion may be unjustified if the claimant can point to “feasible and effective alternatives” with “a lesser impact on privacy interests.”  County of Los Angeles v. Los Angeles County Employee Relations Com. (2013) 56 Cal.4th 905, 926.
Defendant establishes that the right of privacy protects the requested personnel records.  It is well established that personnel records are protected by the right of privacy.  See Cal. Const., art. I, § 1; El Dorado Savings & Loan Assn. v. Supr. Ct. (1987) 190 Cal.App.3d 342, 345 (overruled on other grounds in Williams).  
However, Defendant fails to establish that there is a reasonable expectation of privacy under these circumstances, i.e. privacy in the face of an aggrieved plaintiff alleging discrimination.  Although Defendant establishes that applicants for tenure have a reasonable expectation of privacy from general disclosure, Defendant does not submit any evidence or facts that would extend that expectation of privacy to litigation examining the fairness of the hiring process.  See Williams, supra, 3 Cal.4th at 554 (third party employees would not have reasonable expectation of privacy as to their contact information where plaintiff was seeking to prove labor law violations as to himself and other employees).  
Finally, Defendant fails to establish that there is a serious invasion of privacy at risk.  First, the nature of the information sought is private, but it does not rise to the sensitivity level of medical history, for example.  In fact, the RFPs seek some information that will clearly have little to no privacy interest at stake, e.g. lists of the comparators’ publication credits.  Second, Plaintiff has already agreed to production pursuant to a protective order, and the protective order can include the removal of all personal identification information from the documents, e.g. name, Social Security Number and address.  
Because Defendant fails to establish two of the three elements of the Hill test, the Court need not balance Defendant’s privacy objection against Plaintiff’s asserted countervailing interest in discovering the information.  Defendant’s privacy objection is therefore overruled in favor of disclosure.  
Even if Defendant satisfies all elements of the Hill test, any balancing of those privacy interests against Plaintiff’s countervailing interest would weigh in favor of disclosure.  “[P]rivacy concerns are not absolute; they must be balanced against other important interests.”  Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 37.  “The trial courts in exercising their discretion should keep in mind that the Legislature has suggested that, where possible, the courts should impose partial limitations rather than outright denial of discovery.”  Williams v. Supr. Ct., supra, 3 Cal.5th at 559.  The Supreme Court in Williams also clarified that a party seeking discovery need only present a legitimate countervailing interest to trigger the balancing test and that a “compelling interest” need only be demonstrated in cases implicating one’s fundamental right to personal autonomy.  Id.  
Balancing Mueller, et al.’s privacy rights against Plaintiff’s critical need for comparative evidence to establish discrimination and disparate treatment, the Court finds in favor of disclosure.  There is rarely direct evidence of discrimination and a plaintiff in a discrimination case must often rely on circumstantial evidence of discriminatory intent, such as comparative evidence.  See Gupta v. Trustees of California State University (2019) 40 Cal.App.5th 510, 519 (trial court did not err in allowing plaintiff to present comparator evidence without requiring her to demonstrate she was a “clearly superior” candidate; rejecting position that comparator evidence could only be presented after demonstrating that plaintiff was “clearly superior” to comparators); Soria v. Univision Radio Los Angeles, Inc. (2016) 5 Cal.App.5th 570, 591(direct evidence is rare and most discrimination claims must usually be proved circumstantially); Iwekaogwu v. City of Los Angeles (1999) 75 Cal.App.4th 803, 817 (plaintiff sufficiently raised an inference of pretext based on comparative evidence demonstrating that other employees were being treated better and differently from plaintiff, despite plaintiff’s superior qualifications to those employees); Clark v. Claremont University Center (1992) 6 Cal.App.4th 639, 662.  Thus, the subject RFPs seek information that is ordinarily central to discrimination actions and that could potentially satisfy the element of discriminatory intent.  There is also a strong public interest in punishing and preventing discriminatory employment practices.  Plaintiff therefore raises significant countervailing interests against Defendant’s privacy objection that balances in favor of disclosure. 
Defendant asks that a protective order be issued if the Court requires disclosure.  Plaintiff Ross has offered to enter into a PO from the outset.  For this reason, Ross/Operstein’s motion to compel further production to RFPs (Set Three) (CRS 665) and Ross’s motion to compel production to RFPs (Set One) are GRANTED upon execution of a stipulation and protective order.  Parties to submit a proposed protective order within 15 days.  Defendant is ordered to produce all responsive documents within 30 days of the Court’s execution of the protective order.  
VI.  EC §1040(b)(2) does not preclude disclosure of the requested records.
“A public entity has a privilege to refuse to disclose official information, and to prevent another from disclosing official information, if the privilege is claimed by a person authorized by the public entity to do so and either of the following apply:…(2) Disclosure of the information is against the public interest because there is a necessity for preserving the confidentiality of the information that outweighs the necessity for disclosure in the interest of justice…In determining whether disclosure of the information is against the public interest, the interest of the public entity as a party in the outcome of the proceeding may not be considered.”  Evid. Code, § 1040(b)(2).  
Based on EC §1040(b)(2), disclosure of “official information” thereunder is required unless (1) the privilege is claimed by a person authorized by the public entity to do so and (2) the Board establishes that disclosure is against the public interest, because there is a necessity for preserving the confidentiality of information that outweighs the need for disclosure.  As noted by the Board, the faculty members whose records are at issue filed declarations dated 3-4-20 asserting that (1) they submitted the information in confidence to the Board for tenure review and (2) they were asserting the right to nondisclosure under EC §1040(b)(2), thus satisfying one of the two prongs required for nondisclosure under EC §1040(b)(2). 
However, in order to refuse disclosure, the Board must establish that the need for preserving confidentiality of the information outweighs the need for disclosure.  The requirements for nondisclosure under EC §1040(b)(2) mirror the test applied where a party asserts a privacy objection in the face of a discovery demand.  The Board asserts that the individual applicants’ privacy rights and the right to academic freedom require nondisclosure.  
As discussed in connection with the privacy objections, the Court finds the need for confidentiality is outweighed by the need for disclosure in this case.  As explained in Gupta and Soria, the type of comparator evidence sought here is crucial, because direct evidence of discrimination rarely exists.  Moreover, any interests in the confidentiality of the information can be addressed with a protective order and redactions of the applicant’s personal information, except for race, age, gender and any other characteristics Plaintiff Operstein claims was the basis for discrimination.  Finally, the Court fails to see how the right to academic freedom is implicated by disclosure of the documents, and even if it were, the protective order and redactions would provide sufficient protection.  
VII.  The time period selected is not overbroad.
Plaintiffs’ request for records from 2011 through 2020 is not overbroad or irrelevant.  Plaintiffs are entitled to seek documents for the period during which Operstein was considered for tenure (2014-2015) and also documents for a reasonable time period during which the same alleged standards used to review applications for tenure.  Plaintiffs are alleging a standing policy of discrimination and given the broad scope of discovery, she is not limited to conduct discovery for the period of 2014 to 2015.  A span of nine years is not unreasonable.  
  
-------------------------------------------------
Case Name: Ross, et al. v. Board of Trustees of California State University, et al
 
Case No.: SC125558 Complaint Filed: 3/15/16
Hearing Date: 8-6-20 Discovery c/o: 5-7-21
Calendar No.: 3 Discovery Motion c/o: 5-24-21
Service: OK Trial Date: 6-7-21
SUBJECT: MOTION TO COMPEL FURTHER RESPONSES TO SPECIAL INTERROGATORIES NOS. 2, 3 and 5 (CRS No. 243)
MOVING PARTY: Plaintiff Craig Ross 
RESP. PARTY: Defendant Board of Trustees of the California State University
TENTATIVE RULING
Plaintiff Ross’s Motion to Compel Further Responses to SI Nos. 2, 3 and 5 (Set Two) from Defendant CSU is GRANTED.  CSU is ordered to serve further responses, without objections,  within 20 days.  
“While the party propounding interrogatories may have the burden of filing a motion to compel if it finds the answers it receives unsatisfactory, the burden of justifying any objection and failure to respond remains at all times with the party resisting an interrogatory.”  Williams v. Superior Court (2017) 3 Cal.5th 531, 541.  Where a party objects to discovery based on privilege, the party claiming the privilege has the burden of establishing the preliminary facts necessary to support its exercise, i.e., a communication made in the course of an attorney-client relationship. Evid.Code, § 917(a); Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, 733.    
Defendant CSU’s opposition fails to argue any of the objections asserted to SI Nos. 2, 3 and 5, except (1) the interrogatories contain an instruction not approved by the Judicial Council; and (2) the definitions of “facts,” “identify” and “defenses” are unintelligible.  The objection based on the instruction is meritless.  The Court agrees Plaintiff Ross’s custom-drafted instruction regarding the content of CSU’s responses is invalid and improper.  However, CSU was still required to serve response in accordance with CCP §2030.210, et seq.  The objection based on the improper instruction is therefore overruled.
Defendant CSU’s objection based on unintelligibility is overruled.  Plaintiff essentially incorporates the definition of “facts” as used in Form Rog 15.1.  The use of the word “facts” is used in its ordinary sense in Form Rog 15.1.  Plaintiff’s definition of “identify” in SI No. 2 is clear, although lengthy, as provision of “all information about the person in question,” including name and contact information.  Likewise, the definition of identify in SI No. 5 is also clear as stating “the date of the document, the author or addressor of the document, the addressee and recipients of all copies of the document…”  The definition of “defenses” references CCP §431.30, which defines defenses as “a statement of any new matter constituting a defense,” or essentially an affirmative defense.  
Defendant CSU’s production of documents in response to SI No. 5 is insufficient to satisfy its obligation to respond to SI No. 5 in accordance with CCP §2030.210, et seq.  A responding party may produce documents in lieu of responding to a special interrogatory only if the requirements of CCP §2030.230 are met.  CSU fails to establish that CCP §2030.230 applies here.  
CSU’s interrogatory responses include improper and baseless objections.  CSU’s responses are therefore defective.  CSU must serve further responses eliminating the objections asserted in the original responses and those argued in its opposition.  CSU’s responses should comply with CCP §2030.210, et seq.  
 
-------------------------------------
Case Name: Ross, et al. v. Board of Trustees of California State University, et al
 
Case No.: SC125558 Complaint Filed: 3/15/16
Hearing Date: 8-6-20 Discovery c/o: 5-7-21
Calendar No.: 3 Discovery Motion c/o: 5-24-21
Service: OK Trial Date: 6-7-21
SUBJECT: MOTION TO COMPEL FURTHER RESPONSES TO SPECIAL INTERROGATORIES NOS. 81, 82 AND 83 (CRS No. 960)
MOVING PARTY: Defendant Board of Trustees of the California State University
RESP. PARTY: Plaintiffs Craig Ross and Natalie Operstein
TENTATIVE RULING
Defendant Board of Trustees’ Motion to Compel Further Responses to Special Interrogatories Nos. 81-83 is GRANTED.  Plaintiff Natalie Operstein is ordered to serve further responses within 20 days.  
I.  Plaintiff fails to establish her objections are meritorious
A.  Plaintiff fails to establish the interrogatories are irrelevant
“While the party propounding interrogatories may have the burden of filing a motion to compel if it finds the answers it receives unsatisfactory, the burden of justifying any objection and failure to respond remains at all times with the party resisting an interrogatory.”  Williams v. Superior Court (2017) 3 Cal.5th 531, 541.  Thus, a propounding party is “presumptively entitled” to a response to its interrogatory, unless the responding party establishes a legitimate objection that would relieve it of the obligation to respond.  Id. 
Plaintiff’s objections are based on privacy and relevance.  Plaintiff’s relevance objection is overruled.  The scope of discovery is broad and discovery requests “reasonably calculated to lead to the discovery of admissible evidence.”  CCP §2017.010.  “Under the Legislature’s very liberal and flexible standard of relevancy, any doubts as to relevance should generally be resolved in favor of permitting discovery.”  Williams, supra, 3 Cal.5th at 542.  
The three special interrogatories seek information relating to Plaintiff’s efforts to obtain other employment after she was denied her promotion.  Defendant has the burden at trial of establishing mitigation as a defense to Plaintiff’s requested damages, and it is therefore entitled to conduct discovery into Plaintiff’s efforts to obtain other employment.  Plaintiff’s efforts to obtain other employment are directly relevant to the amount of damages she is entitled to recover.  “The general rule is that the measure of recovery by a wrongfully discharged employee is the amount of salary agreed upon for the period of service, less the amount which the employer affirmatively proves the employee has earned or with reasonable effort might have earned from other employment.”  Parker v. Twentieth Century-Fox Film Corp. (1970) 3 Cal.3d 176, 181.  
Interrogatories 81 and 82 seek information regarding the entities to whom Plaintiff submitted employment applications and with whom she interviewed for employment during the relevant time period.  These interrogatories therefore seek information directly relevant to Defendant’s mitigation attempt.
Interrogatory 83 seeks information regarding Plaintiff’s response to the certifications required by all prospective employers.  In her declaration in opposition to the motion to change venue, Plaintiff testified she was having difficulty obtaining employment since being terminated and cited to a certification required by prospective employers.  See Motion, Ex. A, Dec. of N. Operstein, ¶¶3 and 4.  The certification required her to report to her prospective employer whether she was or had been subject to adverse employment action, including termination.  Id. at ¶4.  How Plaintiff responded to these certifications is relevant to whether Plaintiff reasonably attempted to mitigate her damages, since Plaintiff claims they were a condition of employment.  
Plaintiff argues mitigation can only be established based on similar or comparable employment.  Plaintiff’s argument is irrelevant to Defendant’s right to conduct discovery to determine whether mitigation can be established.  The scope of discovery includes discovery of information that “may” lead to admissible evidence.  Interrogatories 81-83 are therefore directly relevant to Plaintiff’s damages request and Defendant’s mitigation defense.
B.  Plaintiff fails to establish the validity of her privacy objections
Even if Plaintiff established that the right of privacy applied to Interrogatories 81-83, Plaintiff waived any privacy protection by seeking damages, including loss of income, due to Defendant’s wrongful denial of her promotion.  “[A]n implicit waiver of a party's constitutional rights encompasses only discovery directly relevant to the plaintiff's claim and essential to the fair resolution of the lawsuit.”  See Vinson v. Supr. Ct. (1987) 43 Cal.3d 833, 842 (plaintiff’s mental and emotional health were placed at issue by plaintiff’s request for general damages and any privacy objection to discovery into her continuing mental and emotional ailments were waived; no such implied waiver existed as to sexual history) .  It would be manifestly unfair to allow Plaintiff to seek damages for Defendant’s adverse employment action, while also preventing Defendant from conducting discovery regarding those damages, including Plaintiff’s mitigation attempts, based on Plaintiff’s privacy right.  
Plaintiff argues she satisfies all of the elements of a privacy objection as discussed in Hill v. National Athletic Association (1994) 7 Cal.4th 1, 34, or the Hill test.  “In Hill, we established a framework for evaluating potential invasions of privacy. The party asserting a privacy right must establish a legally protected privacy interest, an objectively reasonable expectation of privacy in the given circumstances, and a threatened intrusion that is serious.  The party seeking information may raise in response whatever legitimate and important countervailing interests disclosure serves, while the party seeking protection may identify feasible alternatives that serve the same interests or protective measures that would diminish the loss of privacy. A court must then balance these competing considerations.”  Williams v. Supr. Ct. (2017) 3 Cal.5th 531, 552 (“compelling interest” only required to justify an obvious invasion of an interest
“fundamental to personal autonomy,” such as freedom from sterilization).
Plaintiff fails to demonstrate a serious privacy invasion or an objectively reasonable expectation of privacy under the circumstances.  Defendant is not seeking the information Plaintiff included in her employment applications.  Defendant is only seeking the identities of the employers to whom she submitted applications and/or with whom she interviewed.  Likewise, Defendant is seeking Plaintiff’s response to the certification she herself quoted verbatim in a prior declaration and that she claimed was a precondition to employment.  Any privacy interest at stake is weak and there are legitimate and countervailing interests requiring disclosure, as discussed in connection with the waiver issue.  Balancing the privacy interest at stake, the countervailing interest in disclosure and the seriousness of the invasion, the Court overrules Plaintiff’s privacy objection.  
For these same reasons, Plaintiff fails to demonstrate the need for a protective order as to Interrogatories 81-83.  

Case Number: SC125558    Hearing Date: June 25, 2020    Dept: O

Case Name: Ross, et al. v. Board of Trustees of California State University, et al

Case No.: SC125558

Complaint Filed: 3/15/16

Hearing Date: 6-25-20

Discovery c/o: 9-21-20

Calendar No.: 8

Discovery Motion c/o: 10-5-20

Service: OK

Trial Date: 10-19-20

SUBJECT: (1) DEMURRER TO FIRST AMENDED ANSWER

(2) MOTION TO STRIKE FIRST AMENDED ANSWER

MOVING PARTY: Plaintiffs Craig Ross and Natalie Operstein

RESP. PARTY: Defendant Board of Trustees of CSU

TENTATIVE RULING

Plaintiffs’ Demurrer to Defendant’s First Amended Answer is OVERRULED and the MTS is GRANTED as to the 8th Affirmative Defense for Fees and DENIED as to all remaining defenses.

Plaintiff Ross also filed an MJP to the 3rd, 4th, 6th, 9th through 18th, 20th, 22nd and 25th affirmative defenses alleged in the FAA. An MJP serves the exact same function as a demurrer based on the answer’s failure to state facts to constitute a defense. See People ex rel. Becerra v. Superior Court (2018) 29 Cal.App.5th 486, 499. “The motion should be denied if the defendant's pleadings raise a material issue or set up affirmative matter constituting a defense; for purposes of ruling on the motion, the trial court must treat all of the defendant's allegations as being true.” Allstate Ins. Co. v. Kim W. (1984) 160 Cal.App.3d 326, 331. The demurrer arguments as to the 3rd, 4th, 6th, 9th through 18th, 20th, 22nd and 25th affirmative defenses overlap with those made in Ross’s MJP.

As to Plaintiffs’ demurrer to these defenses, the Court incorporates the analysis set forth in the ruling on Ross’s MJP. Namely, (1) the FAA sets forth sufficient facts to constitute a defense, even if the affirmative defenses were insufficiently pled, because the FAA contains a general denial (See People ex rel. Becerra, supra, 29 Cal.App.5th at 499; and (2) Defendants sufficiently allege ultimate facts to support the 3rd (legitimate business reason), 4th (Government Code §945.6—failure to comply with Government Claims Act, 6th (failure to exhaust administrative remedies) 9th through 16th (unclean hands, pre-existing injuries/conditions, failure to avoid or mitigate, offset, ratification, collateral source, immunity from punitive damages, waiver) and 22nd (statute of frauds) affirmative defenses (5 Witkin, Cal. Proc. (5th ed. 2008) Plead, §1082 (party need only allege ultimate facts in pleading).

In addition, because there is a general denial contained in the FAA, the entire demurrer to the FAA is overruled. See People ex rel. Becerra v. Superior Court (2018) 29 Cal.App.5th 486, 499 (discussing MJP based on failure to state facts to constitute a defense); Engine Manufacturers Assn. v. State Air Resources Bd. (2014) 231 Cal.App.4th 1022, 1034 (MJP must be denied if “defendant's pleadings raise a material issue or set up affirmative matter constituting a defense”); Allstate Ins. Co., supra, 160 Cal.App.3d at 331 (MJP should be denied if answer either contains general denial or states facts in support of affirmative defenses); Barasch v. Epstein (1957) 147 Cal.App.2d 439, 443 (“[w]here the answer, fairly construed, suggests that the defendant may have a good defense, a motion for judgment on the pleadings should not be granted”). CCP §430.10 only requires that an answer either contain a (1) general or specific denial of the material allegations of the complaint controverted by the defendant or (2) a statement of any new matter constituting a defense. The FAA contains a general denial and therefore “state[s] facts that constitute a defense,” defeating any demurrer pursuant to CCP §430.20(a). CCP §430.20(a) does not require that the answer state facts to constitute an affirmative defense; it permits demurrer based on failure to state facts that constitute a defense of any type. See CCP §430.20(a)(“A party against whom an answer has been filed may object, by demurrer as provided in Section 430.30, to the answer upon any one or more of the following grounds: (a) The answer does not state facts sufficient to constitute a defense”).

Moreover, based on a review of the 5th affirmative defense for SOL, 7th defense for failure to raise in an administrative proceeding, 19th affirmative defense for reasonable care, 21st affirmative defense for adequate policies and 24th affirmative defense for privilege, sufficient ultimate facts are alleged in support of each defense. As with the defenses targeted by Plaintiff Ross’s MJP, ultimate facts are stated that would support each of these defenses.

Plaintiffs argue several of the defenses are not properly asserted to certain causes of action. However, demurrer to an answer per CCP §430.20(a) is limited to failure to set forth facts to constitute a defense to the complaint. The mere fact that a specific affirmative defense may be legally inapplicable to some causes of action but not others does not justify demurrer. So long as the affirmative defense states facts to constitute a defense to some alleged causes of action, demurrer should be overruled. It is only when the answer does not state any facts to constitute a defense that demurrer per CCP §430.20(a) is proper.

Finally, Defendants’ demurrer to the answer based on uncertainty is overruled. “As used in this subdivision, ‘uncertain’ includes ambiguous and unintelligible.” CCP §430.20(b). “A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616. The FAA is not ambiguous or unintelligible.

The MTS to the FAA is DENIED as to the the 3rd through 14th c/a, the 16th through 22nd, and the 24th through 25th affirmative defenses affirmative defenses. These affirmative defenses identified in the MTS are not irrelevant, improper or false for the reasons stated in connection with Ross’s MJP and Plaintiffs’ Demurrer to the FAA.

However, the 8th affirmative “defense” is not a defense and is in fact a claim for affirmative relief in the form of statutory attorney’s fees. CCP §431.30(c) states: “Affirmative relief may not be claimed in the answer.”

As to the 25th affirmative defense for “Additional Defenses,” the statement that Defendants intend to assert additional defenses if discovery or circumstances reveal such defenses is not irrelevant, improper or false. Defendants fail to cite to any authority that would require the Court to strike the “Additional Defenses” statement. Moreover, Defendants’ authority for the proposition that “reservations of right” must be stricken from an answer are either erroneous citations to inapplicable law or inapposite foreign authority. See Demurrer to FAA, 11:7-10.

SUBJECT: MOTION FOR JUDGMENT ON THE PLEADINGS (CRS NO. 712)

MOVING PARTY: Plaintiff Craig Ross

RESP. PARTY: Defendant Board of Trustees of the California State University

TENTATIVE RULING

Plaintiff Craig Ross’s Motion for Judgment on the Pleadings is DENIED. Plaintiffs’ RJN on reply is denied.

I. Applicable Law

“A plaintiff’s motion for judgment on the pleadings is analogous to a plaintiff’s demurrer to an answer and is evaluated by the same standards. The motion should be denied if the defendant’s pleadings raise a material issue or set up affirmative matter constituting a defense; for purposes of ruling on the motion, the trial court must treat all of the defendant’s allegations as being true.” People ex rel. Becerra v. Superior Court (2018) 29 Cal.App.5th 486, 499. An answer fails to raise any material issue or state a defense where it expressly or substantially admits or does not sufficiently deny all the material allegations of the complaint and sets up no new matter that is sufficient to bar or defeat the action. See Adjustment Corp. v. Hollywood Hardware & Paint Co. (1939) 35 Cal.App.2d 566, 569-570.

“An affirmative defense must be pleaded in the same manner as if the facts were set forth in a complaint. In other words, the general requirement of stating the ultimate facts applies and, where particularity in pleading is necessary in a complaint, it is equally necessary in an affirmative defense involving the issue.” 5 Witkin, Cal. Proc. (5th ed. 2008) Plead, § 1082; see also Timberidge Enterprises, Inc. v. City of Santa Rosa (1978) 86 Cal.App.3d 873, 879-880 (demurrer to answer asks whether the answer raises a defense to the plaintiff's stated cause of action). Pleadings are meant “to inform ... adversaries of the nature of the cause which they state against them with sufficient particularity to advise them of the issue they will be required to meet at the trial of the action.” Lewis v. Fahn (1952) 113 Cal.App.2d 95, 100. Facts that establish a complete discharge of defendant's previously accrued liability must be specially pleaded. 5 Witkin, supra, § 1082.

II. Motion for Judgment on the Pleadings is DENIED

First, Defendant’s answer contains both a general denial of all facts alleged in the TAC and affirmative defenses constituting a defense. Defendant’s general denial of the complaint requires a denial of Plaintiff’s MJP of the answer. See People ex rel. Becerra, supra, 29 Cal.App.5th at 499 (“Preliminarily, the trial court should have denied judgment on the pleadings for the simple reason that the State had denied all of the [plaintiffs’] allegations”). An MJP to an answer must be denied if the answer contains a general denial or sets up new matter with a proper affirmative defense. Id.

Second, Ross lacks standing to challenge the sufficiency of the 17th, 18th, 19th and 20th affirmative defenses pled in the First Amended Answer. These affirmative defenses expressly state they are only being asserted to causes of action brought by Operstein or FEHA claims, which are only asserted by Operstein.

However, Ross has standing to challenge the remaining defenses identified in his notice of motion (3rd, 4th, 6th, 9th through 16th, 22nd and 25th affirmative defenses). Each of those challenged defenses indicate they are being asserted to “the TAC and each cause of action alleged therein,” which would include the loss of consortium claim.

Third, the 25th “affirmative defense” is not an affirmative defense but a reservation of the right to assert additional affirmative defenses if new information is discovered. As such, it is not subject to judgment on the pleadings.

Fourth, the 3rd (legitimate business reason), 4th (Government Code §945.6—failure to comply with Government Claims Act, 6th (failure to exhaust administrative remedies) 9th through 16th (unclean hands, pre-existing injuries/conditions, failure to avoid or mitigate, offset, ratification, collateral source, immunity from punitive damages, waiver) and 22nd affirmative defenses are sufficiently pleaded (statute of frauds). Defendant is only required to plead ultimate facts, not evidentiary facts, which it does. See 5 Witkin, Cal. Proc. (5th ed. 2008) Plead, §1082. Defendant is also not required to plead facts in support of these defenses with heightened specificity akin to a fraud claim. Plaintiff does not cite to any authority applying a heightened standard of pleading to the subject affirmative defenses.

Fourth, Plaintiff argues that the defenses are meritless. However, an MJP only tests the sufficiency of the pleading and all factual allegations are accept as true. See People ex rel. Becerra, supra, 29 Cal.App.5th at 499. The merits of the defenses themselves are not at issue.

SUBJECT: MOTION FOR JUDGMENT ON THE PLEADINGS OF 20TH CAUSE OF ACTION FOR FEHA IN PLAINTIFF’S TAC

MOVING PARTY: Defendant Board of Trustees

RESP. PARTY: Plaintiffs Natalie Operstein and Craig Ross

TENTATIVE RULING

Defendant Board of Trustees’ Motion for Judgment on the Pleadings of the 20th cause of action for violation of FEHA in Plaintiffs’ TAC is DENIED. Defendant’s RJN is GRANTED as to Exhibits A through C but not as to Operstein’s deposition testimony at Ex. D or the individual facts identified in the RJN. The Court judicially notices the documents but not the truth or accuracy of the statements contained therein. Defendant to answer in 10 days. Plaintiff’s RJN is GRANTED as to Ex. 3 and DENIED as irrelevant as to the remaining exhibits.

Defendant’s MJP to the 20th cause of action for violation of FEHA is based on res judicata and collateral estoppel arising from Ross, et al. v. White, et al. Case No. 2:17-cv-04149-ODW (JCx) (the “Federal Action”).

I. Whether the Federal Action has res judicata effect in this action is determined under the federal “transactional” test, not California’s primary rights test

“Full faith and credit must be given to a final order or judgment of a federal court.” Franceschi v. Franchise Tax Bd. (2016) 1 Cal.App.5th 247, 259. Where a party seeks to assert res judicata based on a federal judgment, there is a split in California authority as to whether the federal “transactional” test applies to determine the issue or whether California’s primary rights test applies.

On one side of the split, California courts hold that, where a prior federal judgment is issued in a federal question case, federal res judicata law determines the preclusive effect of a prior federal judgment in a subsequent state action. See Guerrero v. Department of Corrections & Rehabilitation (2018) 28 Cal.App.5th 1091, 1102 (citing Taylor v. Sturgell (2008) 553 U.S. 880, 892); Hardy v. America's Best Home Loans (2014) 232 Cal.App.4th 795, 805 (quoting Semtek Int'l Inc. v. Lockheed Martin Corp. (2001) 531 U.S. 497, 503, 507); Louie v. BFS Retail & Commercial Operations, LLC (2009) 178 Cal.App.4th 1544, 1553 (where a prior federal judgment was based on federal question jurisdiction, the preclusive effect of the prior judgment of a federal court is determined by federal common law). Thus, under the Guerrero line of authority, courts should apply the federal “transactional” test to determine if a prior federal judgment based on federal question jurisdiction has res judicata effect in a subsequent state court action. See Guerrero, supra, 28 Cal.App.5th at 1109 (noting differences between California primary rights test and federal “transactional” test to determine whether res judicata applies). Under this line of authority, California’s primary rights test is only applied where res judicata is based on a prior federal case involving diversity jurisdiction. See Louie, supra, 178 Cal.App.4th at 1553–1554; Guerrero, supra, 28 Cal.App.5th at 1100; Hardy, supra, 232 Cal.App.4th at 805–806 (quoting Semtek, supra, 531 U.S. at 507).

On the other side of the split, California authority applies the primary rights test to determine whether a prior federal action is res judicata on a subsequent state action, regardless of whether the prior federal action involved diversity or federal question jurisdiction. See Franceschi v. Franchise Tax Bd. (2016) 1 Cal.App.5th 247, 257 (citing Agarwal v. Johnson (1979) 25 Cal.3d 932, 954–955 (disapproved of on other grounds); Acuna v. Regents of University of California (1997) 56 Cal.App.4th 639, 648; Guerrero, supra, 28 Cal.App.5th at 1101, fn 8 (collecting cases applying California primary rights test to determine whether final federal judgment was res judicata in subsequent California action). “Where an action is filed in a California state court and the defendant claims the suit is barred by a final federal judgment, California law will determine the res judicata effect of the prior federal court judgment on the basis of whether the federal and state actions involve the same primary right.” Franceschi v. Franchise Tax Bd. (2016) 1 Cal.App.5th 247, 257.

Defendant failed to acknowledge the split in authority regarding res judicata based on a final federal judgment. Defendant relied entirely on Acuna without noting the split or discussing why the Court should adhere to the Acuna/Franchesi line of authority.

The Court finds the Guerrero line of authority persuasive. As noted in Guerrero, Acuna was decided before the U.S. Supreme Court issued Taylor and Semtek. Guerrero, supra, 28 Cal.App.5th at 1107. Franchesi and other cases in line with Franchesi failed to discuss either Taylor or Semtek and assumed without explanation that California’s primary rights test applied. Franchesi also relied entirely on Aguilar, which was decided in 1979, decades before Taylor or Semtek. Guerrero, supra, 28 Cal.App.5th at 1101, fn 8 (collecting cases applying California primary rights test to determine whether final federal judgment was res judicata in subsequent California action). In contrast, Guerrero discusses at length the impact of both Taylor and Semtek and the basis for requiring that the federal test for res judicata be applied to final judgments rendered in federal question cases. Id. at 1100-1101 (based on Taylor and Semtek, need for uniformity in federal rules of res judicata required application of federal common law to determine whether federal judgment has res judicata effect in state court action).

Federal subject matter jurisdiction in the Federal Action was based on federal question jurisdiction, not diversity jurisdiction. See Defendant’s RJN, Ex. A, Second Amended Complaint in Federal Action, ¶1. The SAC does not mention diversity jurisdiction under 28 USC §1332. Only federal statutory claims were alleged in the SAC and the only claims at issue in the 7-1-19 MSJ were Defendant’s alleged violation of Plaintiff’s due process rights under the 14th Amendment, as set forth in Plaintiff’s 42 USC §1983 claim. See Defendant’s RJN, Ex. A, SAC, ¶1 and Ex. B, 2:1-6 and 6:23. As such, whether the Federal Action has res judicata effect must be determined under the federal “transactional” test, not California’s “primary rights” test.

II. Defendant fails to establish that Plaintiff’s 20th cause of action for FEHA violations is the “same claim” raised in the Federal Action for purposes of claim preclusion

“Claim preclusion, or res judicata, bars successive litigation of the very same claim following a final adjudication on the merits involving the same parties or their privies.” Amadeo v. Principal Mut. Life Ins. Co. (9th Cir. 2002) 290 F.3d 1152, 1159. “Res judicata bars all grounds for recovery which could have been asserted, whether they were or not, in a prior suit between the same parties on the same cause of action.” Clark v. Bear Stearns & Co., Inc. (9th Cir. 1992) 966 F.2d 1318, 1320; 18 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure §4402 (3rd ed. 2002).

Under the federal test, in determining whether successive lawsuits involve the same “claim” or cause of action, the court considers: (1) whether rights or interests established in the prior judgment would be destroyed or impaired by prosecution of the second action; (2) whether substantially the same evidence is presented in the two actions; (3) whether the two suits involve infringement of the same right; and (4) whether the two suits arise out of the same transactional nucleus of facts.” Garity v. APWU National Labor Organization (9th Cir. 2016) 828 F.3d 848, 855 (claim preclusion did not apply where “rights and interests” and “same right” factors weighed against claim preclusion and plaintiff never had a full and fair opportunity in first action to litigate claims alleged in second action); Clark v. Bear Stearns & Co., Inc. (9th Cir. 1992) 966 F.2d 1318, 1320.

“Though all four factors are considered, reliance on the transactional nucleus element is especially appropriate because the element is ‘outcome determinative.’” Garity, supra, 828 F.3d at 855. The test is not to be applied “mechanistically.” Id. Moreover, even if the same claim is involved based on the four-factor test, res judicata will not be applied if the plaintiff did not have a full and fair opportunity to litigate that claim. Id. at 856 (“implicit in the doctrine is the assumption that the plaintiff actually had the chance to be heard on all of her claims in the first proceeding”).

Defendant failed to apply the federal test to determine whether the same claim alleged in the 20th cause of action for violation of FEHA was already litigated or could have been litigated in the Federal Action. Defendant assumed the California primary rights theory applied and therefore relied entirely on Acuna to establish res judicata. On this ground alone, Defendant fails to meet its burden on this MJP.

Even applying the federal test, the record does not support a clear and affirmative finding that the 20th cause of action for violation of FEHA seeks to litigate “same claim” litigated to final judgment in the Federal Action:

(i) “whether substantially the same evidence is presented in the two actions”: Defendant does not provide a sufficient record for the Court to determine if the 7-1-19 MSJ was based on substantially the same evidence as would be submitted in connection with the 20th cause of action for violation of FEHA.

(ii) “whether the two suits arise out of the same transactional nucleus of facts”: Based on a review of the SAC filed in the Federal Action and the TAC filed in this action, the two actions do arise out of the same transactional nucleus of facts. Both actions are based on Operstein’s employment with CSU Fullerton and the denial of her application for tenure.

(iii) “whether the two suits involve infringement of the same right”: “While our precedents do not offer a great deal of clarification as to how this element should be analyzed, we generally perform a basic matching exercise.” Garity v. APWU National Labor Organization, supra, 828 F.3d at 856. Thus, where a claim is rooted in contract and a subsequent claim is rooted in the right to be free from unlawful discrimination, two distinct rights are involved in each suit. Id. (plaintiff’s first action against union rooted in union agreement while second action against union for ADA violations rooted in statutory right to be free from unlawful discrimination).

Defendant fails to establish that Operstein’s 14th Amendment and 42 USC 1983 claims involve the same right as Plaintiff’s 20th cause of action for violation of FEHA. Defendant relies on Acuna to establish that the same primary right is involved in Plaintiff’s federal claims and Plaintiff’s state law claim for violation of FEHA. Acuna held that under the California primary rights test, the plaintiff’s FEHA and Title VII claims involved the same primary right: “Here the race and ethnicity claims, whether brought under Title VII or the FEHA, arise from the same primary right: the right to be free of invidious employment discrimination. We conclude that the federal summary judgment on the title VII causes of action bars the state action for FEHA damages.” Acuna v. Regents of University of California (1997) 56 Cal.App.4th 639, 649.

Plaintiff’s federal SAC alleges several violations of Plaintiff’s rights under federal law, including racial discrimination, hostile work environment, retaliation for exercise of her First Amendment rights. See Defendant’s RJN, Ex. A, SAC, ¶¶47, 48, 52. However, due to the confused pleading, it is unclear whether these allegations formed the basis of Plaintiff’s alleged federal claims or if they were merely background allegations. Plaintiff did not allege a Title VII (42 U.S. Code §2000e–2) claim in her federal action. Plaintiff alleged other federal claims, including a 42 USC 1983 claim. See Defendant’s RJN, Ex. A, SAC, ¶1 and Ex. B, 2:1-6 and 6:23. Acuna only discussed whether the same primary right was involved in Title VII and FEHA claims. Given that both the FEHA statute and Title VII essentially mirror one another, specifically stating that an employer cannot discriminate as enumerated thereunder, Acuna’s ruling that both claims involve the same primary right is more obvious. Acuna never discussed whether a 42 USC 1983 claim arises from the same primary right as a FEHA claim, nor is it clear from the text of 42 USC 1983 that it does. Unlike Title VII, 42 USC 1983 is a much broader statute and does not mirror FEHA or specifically single out employer discrimination.

In addition, the 7-1-19 MSJ analyzed Plaintiff’s 42 USC 1983 claim as a one based on violation of her 14th Amendment right and discussed her request for permanent injunction as to the defendants’ Hispanization policy. See RJN, Ex. B, 2:1-6. The MSJ hinged on the court’s finding that Operstein had no property right in permanent employment at CSUF. Id. at pp. 8-9. As the federal court clearly stated, “The issue before the Court is whether Operstein can establish that she had a property interest in permanent employment, i.e. a lifetime contract or vested right to tenure, not whether CSUF should have granted her one.Id. at 11:21-23. In contrast, Plaintiff’s 20th cause of action for violation of FEHA is based in part on her allegation that CSUF denied her application for tenure based on unlawful discrimination, i.e. should CSUF granted her application absent that discrimination?

Thus, even if Plaintiff alleged a federal claim based on unlawful employment discrimination, it is unclear from the record provided by Defendant what happened to those claims and whether Plaintiff had a full and fair opportunity to litigate those claims. Garity v. APWU National Labor Organization, supra, 828 F.3d at 856-857 (regardless of four-factor test, res judicata will not be applied where plaintiff did not have fair and full opportunity to litigate). By the time the matter was brought to summary judgment, the only remaining claim was a 42 USC 1983 claim based on violation of Plaintiff’s 14th Amendment right and a request for permanent injunction against the Hispanisation policy.

In opposition, Plaintiffs argue their federal employment discrimination claims were disposed of by way of a Rule 12(b)(6) motion. Plaintiffs attach the federal court’s 4-20-18 Order Granting and Denying in Part the defendants’ 12(b)(6) Motion as Ex. 3 to Plaintiffs’ RJN. Plaintiffs argue the 4-20-18 Order does not have preclusive effect for multiple reasons, e.g. no identity of parties or claims, no ruling on the merits). The Court need not address whether the 4-20-18 Order has preclusive effect, because Defendant’s motion does not argue preclusive effect base don the 4-20-18 Order, nor did Defendant submit that Order as part of its opening brief.

Plaintiff’s 20th cause of action also includes allegations of age discrimination. There were no allegations of age discrimination in the Federal Action’s SAC.

Based on the judicially noticeable documents, the Court cannot find that Plaintiffs’ Federal Action and Plaintiffs’ 20th cause of action for violation of FEHA arise from violation of the same primary right. The SAC in the Federal Action does not clearly base the federal claims alleged therein on the allegations of discrimination. The 7-1-19 MSJ does not establish that Plaintiffs’ 42 USC 1983 claim was based on unlawful discrimination and specifically states it is not addressing the issue of whether Operstein should have been granted tenure. Also, unlike Acuna, Plaintiff Operstein’s Federal Action did not include a Title VII claim, nor does Defendant cite any authority finding that a 42 USC 1983 claim necessarily involves the same primary right as a California FEHA claim.

(iv) “whether rights or interests established in the prior judgment would be destroyed or impaired by prosecution of the second action”—The 7-1-19 MSJ did not make any findings that would impact Plaintiff’s FEHA claim. The 7-1-19 MSJ limited its holding to the issue of whether Plaintiff had a property interest to support her 42 USC 1983 claim based on violation of her 14th Amendment rights. Plaintiff’s FEHA claim is not dependent upon the existence of a vested or enforceable property right in her employment or tenure. Plaintiff’s 20th cause of action is based on her right to be free from employment discrimination, harassment or retaliation as codified in FEHA. A judgment in Plaintiff’s favor on the FEHA claim would not destroy or impair the judgment entered in the Federal Action.

Defendant fails to establish that the Federal Action and the 20th cause of action for FEHA in this action are necessarily and clearly the “same claim.” Although both actions arise from the same transactional nucleus of facts, the record does not support a finding (1) that the two actions involve the substantially the same evidence, (2) that this action could impair or destroy the rights created by the judgment entered in the Federal Action, or (3) that the two actions arise from violation of the same right.

In addition, Defendant does not address at all the “same parties or their privities” element of res judicata. Defendant was required as the party asserting res judicata/claim preclusion to establish each element of the doctrine. “Once properly raised, a party asserting preclusion must carry the burden of establishing all necessary elements.” 18 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure §4405 (3rd ed. 2002). The Court cannot assume that Defendant and the individuals named as defendants in the federal action are Defendant’s privities under federal claim preclusion law.

III. Defendant fails to establish issue preclusion arising from the Federal Action

“Issue preclusion, or collateral estoppel, bars successive litigation of an issue of fact or law actually litigated and resolved in a valid court determination essential to the prior judgment, even if the issue recurs in the context of a different claim.” Garity, supra, 828 F.3d at 858, fn 8. Issue preclusion arises in a second action on the basis of a prior decision when the same issue is involved in both actions, the issue was actually litigated in the first action, after a full and fair opportunity for litigation, the issue was actually decided in the first action, by a disposition that is sufficiently final, on the merits,” and “valid” and it was necessary to decide the issue in disposing of the first action. See 18 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure §4416 (3rd ed. 2002).

Based on the record provided and for the reasons stated in connection with the “rights or interests” and “invasion of same right” prongs of claim preclusion, the issues of whether Plaintiff Operstein was denied tenure or terminated for discriminatory reasons, whether she was retaliated against for exercising her rights and whether she suffered a hostile work environment were never actually litigated or decided in the Federal action. The 7-1-19 MSJ made clear the only issue before the federal court was whether the evidence established that Plaintiff had a property right in permanent employment. The federal court found that the undisputed evidence established that she did not have a property right in permanent employment, because she was a probationary employee. The federal court did not address whether Plaintiff was terminated for discriminatory or legitimate reasons, only that Plaintiff did not have a property right to permanent employment/tenure and therefore her termination did not qualify as a violation of her 14th Amendment right. Based on this same absence of a property right in permanent employment, the federal court found she did not suffer an injury from the Hispanization policy.

The Court notes that Plaintiff’s FEHA claim is only partially based on wrongful termination. Plaintiff’s FEHA claim is also based on Defendant’s alleged denial of her tenure application based on unlawful discrimination and retaliation. As the 7-1-19 MSJ clearly stated, the issue of whether Plaintiff should have been granted tenure but for unlawful discrimination and retaliation was not before the court. See RJN, Ex. B, 11:21-23.

A vested property right in permanent employment is not an element of Plaintiff’s FEHA claim, nor was the existence or nonexistence of discriminatory motive a finding necessary to the 7-1-19 MSJ. Defendant therefore fails to identify an issue that was actually litigated, actually decided and necessary to the 7-1-19 MSJ and that would negate an essential element of Plaintiff’s FEHA claim.

IV. Defendant CSU’s Reply

CSU filed a reply on 6-17-20. The Court addresses the reply as follows:

Case Number: SC125558    Hearing Date: March 17, 2020    Dept: O

SUBJECT: MOTION FOR JUDGMENT ON THE PLEADINGS

MOVING PARTY: Plaintiff Craig Ross

RESP. PARTY: Defendant Board of Trustees of the California State University

TENTATIVE RULING

Plaintiff Craig Ross’s Motion for Judgment on the Pleadings is DENIED.

I. Applicable Law

“A plaintiff’s motion for judgment on the pleadings is analogous to a plaintiff’s demurrer to an answer and is evaluated by the same standards. The motion should be denied if the defendant’s pleadings raise a material issue or set up affirmative matter constituting a defense; for purposes of ruling on the motion, the trial court must treat all of the defendant’s allegations as being true.” People ex rel. Becerra v. Superior Court (2018) 29 Cal.App.5th 486, 499. An answer fails to raise any material issue or state a defense where it expressly or substantially admits or does not sufficiently deny all the material allegations of the complaint and sets up no new matter that is sufficient to bar or defeat the action. See Adjustment Corp. v. Hollywood Hardware & Paint Co. (1939) 35 Cal.App.2d 566, 569-570.

“An affirmative defense must be pleaded in the same manner as if the facts were set forth in a complaint. In other words, the general requirement of stating the ultimate facts applies and, where particularity in pleading is necessary in a complaint, it is equally necessary in an affirmative defense involving the issue.” 5 Witkin, Cal. Proc. (5th ed. 2008) Plead, § 1082; see also Timberidge Enterprises, Inc. v. City of Santa Rosa (1978) 86 Cal.App.3d 873, 879-880 (demurrer to answer asks whether the answer raises a defense to the plaintiff's stated cause of action). Pleadings are meant “to inform ... adversaries of the nature of the cause which they state against them with sufficient particularity to advise them of the issue they will be required to meet at the trial of the action.” Lewis v. Fahn (1952) 113 Cal.App.2d 95, 100. Facts that establish a complete discharge of defendant's previously accrued liability must be specially pleaded. 5 Witkin, supra, § 1082.

II. Motion for Judgment on the Pleadings is DENIED

Defendant’s answer contains both a general denial of all facts alleged in the TAC and affirmative defenses constituting a defense. Defendant’s general denial of the complaint requires a denial of Plaintiff’s MJP of the answer. See People ex rel. Becerra, supra, 29 Cal.App.5th at 499 (“Preliminarily, the trial court should have denied judgment on the pleadings for the simple reason that the State had denied all of the [plaintiffs’] allegations”). An MJP to an answer must be denied if the answer contains a general denial or sets up new matter with a proper affirmative defense. Id.

In addition, Ross lacks standing to challenge the sufficiency of the 17th, 18th, 19th and 20th affirmative defenses pled in the First Amended Answer. These affirmative defenses expressly state they are only being asserted to causes of action brought by Operstein or FEHA claims, which are only asserted by Operstein.

However, Ross has standing to challenge the remaining defenses identified in his notice of motion (3rd, 4th, 6th, 9th through 16th, 22nd and 25th affirmative defenses). Each of those challenged defenses indicate they are being asserted to “the TAC and each cause of action alleged therein,” which would include the loss of consortium claim.

The 25th “affirmative defense” is not an affirmative defense but a reservation of the right to assert additional affirmative defenses if new information is discovered. As such, it is not subject to judgment on the pleadings.

The 3rd (legitimate business reason), 4th (Government Code §945.6—failure to comply with Government Claims Act, 6th (failure to exhaust administrative remedies) 9th through 16th (unclean hands, pre-existing injuries/conditions, failure to avoid or mitigate, offset, ratification, collateral source, immunity from punitive damages, waiver) and 22nd affirmative defenses are sufficiently pleaded (statute of frauds). Defendant is only required to plead ultimate facts, not evidentiary facts, which it does. See 5 Witkin, Cal. Proc. (5th ed. 2008) Plead, §1082. Defendant is also not required to plead facts in support of these defenses with heightened specificity akin to a fraud claim. Plaintiff does not cite to any authority applying a heightened standard of pleading to the subject affirmative defenses.

Plaintiff argues that the defenses are meritless. However, an MJP only tests the sufficiency of the pleading and all factual allegations are accept as true. See People ex rel. Becerra, supra, 29 Cal.App.5th at 499. The merits of the defenses themselves are not at issue.

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