This case was last updated from Los Angeles County Superior Courts on 01/24/2022 at 21:22:28 (UTC).

SHERRAE HAYES PHD ET AL VS REGENTS OF THE UNIVERSITY OF CA

Case Summary

On 09/27/2017 SHERRAE HAYES PHD filed a Labor - Other Labor lawsuit against REGENTS OF THE UNIVERSITY OF CA. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are CAROLYN B. KUHL, ELIZABETH ALLEN WHITE and LAURA A. SEIGLE. The case status is Pending - Other Pending.
Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****7050

  • Filing Date:

    09/27/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Labor - Other Labor

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

CAROLYN B. KUHL

ELIZABETH ALLEN WHITE

LAURA A. SEIGLE

 

Party Details

Petitioners, Appellants and Plaintiffs

FLORES KALINA

WATSON MIA

HAYES SHERRAE PHD

HAYES SHERRAE PH.D.

Respondents and Defendants

SANDOVAL ANTONIO

HUYNH THUY

DOES 1 TO 100

REGENTS OF THE UNIVERSITY OF CALIFORNIA

Attorney/Law Firm Details

Petitioner and Plaintiff Attorneys

CARR PETER LAURENCE IV ESQ

CARR PETER L. IV

IARUSSO MICHELLE

Respondent and Defendant Attorneys

FITZGERALD BARBARA A. ESQ

GABRIELSON ALEXIS M.

NGUYEN HIEN THI TUAN

MINTZ ERIC

MINTZ ERIC SCOTT

NGUYEN HIEN

VAUGHN DARTH

 

Court Documents

Witness List

5/24/2021: Witness List

Notice - NOTICE OF ENTRY OF JUDGMENT

8/13/2021: Notice - NOTICE OF ENTRY OF JUDGMENT

Request for Dismissal

5/6/2021: Request for Dismissal

Appellate Order Dismissing Appeal - APPELLATE ORDER DISMISSING APPEAL B313975

10/15/2021: Appellate Order Dismissing Appeal - APPELLATE ORDER DISMISSING APPEAL B313975

Notice of Ruling

8/16/2021: Notice of Ruling

Notice of Motion - NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF PLAINTIFF HAYES' CLAIMS

8/14/2019: Notice of Motion - NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF PLAINTIFF HAYES' CLAIMS

Separate Statement

8/14/2019: Separate Statement

Memorandum of Points & Authorities

8/14/2019: Memorandum of Points & Authorities

Proof of Service (not Summons and Complaint)

8/14/2019: Proof of Service (not Summons and Complaint)

Declaration - DECLARATION DEFENDANT'S INDEX OF EVIDENCE IN SUPPORT OF DEFENDANT'S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF PLAINTIFF HAYES' CLAIMS

8/14/2019: Declaration - DECLARATION DEFENDANT'S INDEX OF EVIDENCE IN SUPPORT OF DEFENDANT'S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF PLAINTIFF HAYES' CLAIMS

Ex Parte Application - EX PARTE APPLICATION THE PARTIES' JOINT EX PARTE APPLICATION TO CONTINUE TRIAL AND ALL RELATED DATES; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF LISA M. RODRIGUEZ IN S

8/27/2019: Ex Parte Application - EX PARTE APPLICATION THE PARTIES' JOINT EX PARTE APPLICATION TO CONTINUE TRIAL AND ALL RELATED DATES; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF LISA M. RODRIGUEZ IN S

Minute Order - MINUTE ORDER (HEARING ON JOINT EX PARTE APPLICATION TO CONTINUE TRIAL AND A...)

8/29/2019: Minute Order - MINUTE ORDER (HEARING ON JOINT EX PARTE APPLICATION TO CONTINUE TRIAL AND A...)

Notice - NOTICE DEFENDANT'S AMENDED NOTICE OF MOTION FOR SUMMARY JUDGMENT, OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF PLAINTIFF HAYES' CLAIMS

11/5/2019: Notice - NOTICE DEFENDANT'S AMENDED NOTICE OF MOTION FOR SUMMARY JUDGMENT, OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF PLAINTIFF HAYES' CLAIMS

Notice - NOTICE OF ASSOCIATION OF COUNSEL

11/20/2019: Notice - NOTICE OF ASSOCIATION OF COUNSEL

Separate Statement

12/12/2019: Separate Statement

Motion to Compel - MOTION TO COMPEL DEPOSITIONS FROM DEFENDANTS

12/12/2019: Motion to Compel - MOTION TO COMPEL DEPOSITIONS FROM DEFENDANTS

Declaration - DECLARATION OF BRITTANY R. GIBSON IN SUPPORT OF PLAINTIFFS' NOTICE OF MOTION & MOTION TO COMPEL

12/12/2019: Declaration - DECLARATION OF BRITTANY R. GIBSON IN SUPPORT OF PLAINTIFFS' NOTICE OF MOTION & MOTION TO COMPEL

Proof of Personal Service

12/12/2019: Proof of Personal Service

324 More Documents Available

 

Docket Entries

  • 04/18/2022
  • Hearing04/18/2022 at 10:00 AM in Department 48 at 111 North Hill Street, Los Angeles, CA 90012; Jury Trial

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  • 01/20/2022
  • DocketAppeal - Notice Court Reporter to Prepare Appeal Transcript; Filed by Clerk

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  • 12/23/2021
  • Docketat 08:30 AM in Department 48, Laura A. Seigle, Presiding; Hearing on Motion for Attorney Fees - Not Held - Advanced and Continued - by Court

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  • 12/21/2021
  • Docketat 08:30 AM in Department 48, Laura A. Seigle, Presiding; Hearing on Motion for Attorney Fees - Held - Motion Denied

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  • 12/21/2021
  • DocketCertificate of Mailing for ((Hearing on Motion for Attorney Fees) of 12/21/2021); Filed by Clerk

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  • 12/21/2021
  • DocketMinute Order ( (Hearing on Motion for Attorney Fees)); Filed by Clerk

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  • 12/17/2021
  • DocketReply (DEFENDANT REGENTS OF THE UNIVERSITY OF CALIFORNIAS REPLY TO PLAINTIFF FLORES OPPOSITION TO MOTION FOR ATTORNEYS FEES); Filed by Regents of the University of California (Defendant); Antonio Sandoval (Defendant); Thuy Huynh (Defendant)

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  • 12/10/2021
  • DocketProof of Service (not Summons and Complaint); Filed by Kalina Flores (Plaintiff)

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  • 12/10/2021
  • DocketDeclaration (DECLARATION OF NA?SHAUN L. NEAL IN SUPPORT OF PLAINTIFF?S OPPOSTION TO DEFENDANT?S NOTICE OF MOTION AND MOTION FOR ATTORNEYS? FEES AND COST); Filed by Kalina Flores (Plaintiff)

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  • 12/10/2021
  • DocketOpposition (PLAINTIFF KALINA FLORES? OPPOSITION TO DEFENDANT?S MOTION FOR ATTORNEY?S FEES; MEMORANDUM OF POINTS AND AUTHORITIES); Filed by Kalina Flores (Plaintiff)

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461 More Docket Entries
  • 10/25/2017
  • DocketNotice of Case Management Conference; Filed by Clerk

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  • 10/25/2017
  • DocketNOTICE OF CASE MANAGEMENT CONFERENCE

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  • 10/17/2017
  • Docketat 00:00 AM in Department 309; (Order-Complex Determination; Case Determined to be non-Complex) -

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  • 10/17/2017
  • DocketMinute Order

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  • 10/17/2017
  • DocketMinute order entered: 2017-10-17 00:00:00; Filed by Clerk

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  • 10/12/2017
  • DocketSummons; Filed by Sherrae Hayes, Ph.D. (Plaintiff); Kalina Flores (Plaintiff); Mia Watson (Plaintiff)

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  • 10/12/2017
  • DocketSUMMONS

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  • 09/27/2017
  • DocketComplaint; Filed by Sherrae Hayes, Ph.D. (Plaintiff); Kalina Flores (Plaintiff); Mia Watson (Plaintiff)

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  • 09/27/2017
  • DocketCOMPLAINT FOR DAMAGES 1. DISCRIMINATION BASED ON RACE ;ETC

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  • 02/16/2016
  • DocketCase Management Statement; Filed by Regents of the University of California (Defendant)

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Tentative Rulings

b'

Case Number: ****7050 Hearing Date: December 21, 2021 Dept: 48

[TENTATIVE] ORDER RE: DEFENDANT’S MOTION FOR ATTORNEY FEES AND COSTS

On September 27, 2017, Plaintiffs Kalina Flores (“Plaintiff”), Mia Watson, Sherrae Hayes filed this action against Defendants Regents of the University of California (“Defendant”), Antonio Sandoval, and Thuy Huynh, alleging discrimination and harassment based on race and gender; failure to prevent harassment, discrimination, and retaliation; hostile work environment; and retaliation, all in violation of the Fair Employment and Housing Act (“FEHA”). Flores also alleged defamation. Plaintiffs later dismissed Sandoval and Huynh.

On May 18, 2021, the Court granted Defendant’s motion for summary judgment. On August 12, 2021, the Court entered judgment in favor of Defendant and against Plaintiff.

On August 16, 2021, Defendant filed a memorandum of costs. On October 12, 2021, Defendant filed a motion for attorney fees and costs.

A prevailing defendant in a FEHA action may be awarded fees and costs only when the court finds the action was frivolous, unreasonable, or groundless when brought, or the plaintiff continued to litigate after it clearly became so. (Gov. Code, 12965, subd. (b).) “By making a cost award discretionary rather than mandatory, Government Code section 12965(b) expressly excepts FEHA actions from Code of Civil Procedure section 1032(b)’s mandate for a cost award to the prevailing party.” (Williams v. Chino Valley Independent Fire Dist. (2015) 61 Cal.4th 97, 105.) In determining whether an action is frivolous, unreasonable, or groundless, the court must not “engage in post hoc reasoning by concluding that, because a plaintiff did not ultimately prevail, his action must have been unreasonable or without foundation. . . . Even when the law or the facts appear questionable or unfavorable at the outset, a party may have an entirely reasonable ground for bringing suit.” (Christiansburg Garment Co. v. Equal Employment Opportunity Commission (1978) 434 U.S. 412, 421-422 (Christiansburg).)

“Because the majority of cases under the FEHA involve litigants who would not have the financial means to prosecute this type of case, the public policy behind the FEHA is served by not discouraging them from pursuing the litigation by potentially imposing fees that could easily devastate them financially simply because a few file frivolous claims. Thus, a plaintiff’s ability to pay must be considered before awarding attorney fees in favor of the defendant.” (Villanueva v. City of Colton (2008) 160 Cal.App.4th 1188, 1203.) “[A]n award of attorney fees should not subject the plaintiff to financial ruin.” (Rosenman v. Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro (2001) 91 Cal.App.4th 859, 868.)

Defendant’s memorandum of costs reflects $7,294.41 in costs. Defendant seeks a total of $149,415.80 in attorney fees and costs.

Defendant argues Plaintiff’s claims were frivolous, unreasonable, or groundless when brought, or they became so during the litigation. Defendant contends that it was clear from the beginning of this action that Plaintiff’s claims were time-barred. (Motion at p. 13.) Defendant also contends that at a minimum, Plaintiff should have known her claims were time-barred as of her July 16, 2019 deposition, at which she testified that she could not identify any actionable occurrences after June 26, 2016 and before her departure on June 30, 2016. An employee must file an administrative complaint with DFEH within one year after the alleged unlawful action, and he or she must file suit within one year of a right-to-sue letter. (Govt. Code, 12960, 12965, subd. (b).) Plaintiff filed her DFEH charge on June 27, 2017, and then amended it on June 30, 2017, but her complaint alleged conduct occurring before June 26, 2016. On this basis, the Court found that Defendant met its initial burden for summary adjudication of Plaintiff’s first, second, third, fourth, and seventh causes of action.

However, Plaintiff’s loss on summary judgment does not mean that it was unreasonable for her to bring this action. (Christiansburg, supra, 434 U.S. at pp. 421-422.) Plaintiff argued Defendant created intolerable conditions that forced her to resign, so her constructive discharge escaped the time-bar. Although it was undisputed Plaintiff chose not to renew her contract and no one told her not to apply to renew it, neither party cited cases that directly addressed whether a plaintiff can sue for constructive discharge based on intolerable conditions after deciding not to seek renewal of a contract. (See 5/18/2021 Minute Order.) The Court concluded Defendant had not shown that as a matter of law there can be no constructive discharge when an employee decides not to apply for renewal of a contact. Instead, the Court based the decision on the statute of limitations issue on Plaintiff’s allegations of specific incidents and her failure to establish a pattern of continuous mistreatment so intolerable that a reasonable person would have to resign. (Id. at pp. 30-32.) Although the Court ultimately found against Plaintiff on this issue, Defendant has not shown that it was unreasonable for Plaintiff to continue to pursue her claims based on a theory of constructive discharge within the limitations period.

Even if Plaintiff’s claims were or became frivolous, unreasonable, or groundless, Defendant does not provide sufficient evidence for the Court to determine its reasonable attorney fees and costs. Defendant’s counsel states only that defene attorneys bill $275 or $325 per hour, Defendant’s total fees and costs for this action are $448,247.40, and Plaintiff’s one-third share is $149,415.80. (Mintz Decl. 11, 15.) Defendant’s memorandum of costs identifies $7,294.41 in costs, so $142,121.39 is presumed to be attorney fees. With an average hourly rate of $300, this request reflects over 473 hours of attorney work. Defendant also states other attorneys and paralegals “assisted in the defense of this matter to varying degrees.” (Mintz Decl. 12.) If those individuals have lower hourly rates, as expected at least for the paralegals, then the requested fees suggest even more hours of work. Although the parties litigated this case for over three and a half years, Plaintiff filed only two discovery motions before Defendant’s April 22, 2020 motion for summary judgment. Defendant did not attach a copy of the billing statements or give any description of the work performed in defending against Plaintiff’s claims. Based on the limited information provided by Defendant, the Court cannot conclude that $149,415.80 in attorney fees and costs for defending against Plaintiff’s case is reasonable.

The motion for attorney fees and costs is DENIED.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. Parties intending to appear are STRONGLY encouraged to appear remotely.

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Case Number: ****7050    Hearing Date: May 13, 2021    Dept: 48

[TENTATIVE] ORDER RE MOTON TO COMPEL DOCUMENTS

On April 19, 2021, Plaintiff Sherrae Hayes filed a motion to compel the production of documents responsive to requests in a notice of deposition. Plaintiff states Defendant produced the documents but did not produce “code compliant supplemental responses.” (Motion at p. 3.) Plaintiff contends that Defendant waived objections by not timely serving responses and that the responses do not identify the specific request numbers to which the produced documents respond. (Motion at p. 6.)

Defendant argues the motion is late because the documents were to be produced on February 1, 2021, and Plaintiff failed to do an IDC. Defendant contends that the plaintiffs have served the same requests previously and Defendant served responses to those requests previously.

The dispute seems to be that Defendant has not provided supplemental responses to this particular request for production of documents. Therefore the motion is GRANTED. Defendant is to serve the supplemental responses within 10 days.

The request sanctions is denied. The parties were required to participate in an IDC before filing this motion. If the parties had participated in an IDC, this dispute and the motion could have been avoided. Also, the parties took a simple issue – the lack of supplemental responses – and wrote much longer briefs than necessary.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. Parties intending to appear are STRONGLY encouraged to appear remotely.



Case Number: ****7050    Hearing Date: May 7, 2021    Dept: 48

[TENTATIVE] ORDER RE: DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

On September 27, 2017, Plaintiffs Sherrae Hayes (“Plaintiff”), Mia Watson, and Kalina Flores filed this action against Defendants Regents of the University of California (“Defendant”), Antonio Sandoval, and Thuy Huynh, alleging discrimination and harassment based on race and gender; failure to prevent harassment, discrimination, and retaliation; hostile work environment; and retaliation, all in violation of the Fair Employment and Housing Act (“FEHA”). Plaintiffs later dismissed Sandoval and Huynh. On August 14, 2019, Defendant filed a motion for summary judgment, or in the alternative, summary adjudication. Plaintiff filed an opposition. Defendant’s reply papers were filed late.

Plaintiff argues that the Court should strike Defendant’s separate statement and deny the motion because the separate statement “stands replete with purported material facts which make no difference in the disposition of the Motion.” (Opposition at pp. 10-12.) Plaintiff provides no relevant authority to support denying the motion on this basis, and the Court declines to do so.

BACKGROUND FACTS

The Student Initiated Outreach Center (“SIOC”), an arm of UCLA’s Community Programs Office (“CPO”), operates seven projects. (Undisputed Material Facts “UMF” 1.) Each project has a full-time Project Director that is hired on a one-year contract (renewable for a total of three years), and several student employees that are supervised by the Project Director. (UMF 4.) Project Directors report directly to the SIOC Advisor, and ultimately report to the Director of CPO. (UMF 2.)

SHAPE (Students Heightening Academic Performance through Education) is an SIOC project that targets students of African descent and is directed by the UCLA Afrikan Student Union (“ASU”), sometimes called its “mother organization.” (UMF 5.) Plaintiff applied for the SHAPE Project Director position in June 2016, knowing that the position was entry level. (UMF 6-7.) Plaintiff’s employment offer letter specified that the SHAPE Project Director position was a contract appointment with a fixed term ending June 30, 2017. (UMF 8.)

The SHAPE Project Director position was assigned to a payroll title of Program Representative III, in PSS salary grade 2, and Plaintiff’s starting salary was $3,897.52 per month. (UMF 9.) Plaintiff spoke with CPO Business Officer Angela Hernandez on July 6, 2016, and Hernandez informed Hayes that there were specific restrictions on the salary that CPO could offer for the Project Director position. (UMF 10.) Plaintiff submitted her “offer response letter” to Hernandez on July 7, 2016, requesting a salary increase of $8,000 to $10,500, relocation assistance of $4,965, and to work remotely two days per week. (UMF 11.) Hernandez replied to Plaintiff on July 8, 2016 stating that the CPO could not accommodate any of Hayes’s requests because Project Director is an entry level position. (UMF 12.) Plaintiff accepted the terms of the July 6 offer letter and was hired as SHAPE Project Director for the 2016-2017 Academic Year ending June 30, 2017. (UMF 13.)

Plaintiff did not attend UCLA as a student, and did not have any prior connection to UCLA, CPO, or ASU. (UMF 14.) Plaintiff testified that she was “viewed differently” and felt “disadvantaged” because she lacked familiarity with UCLA, and that there were “assumed processes and ways to communicate or get access to the leadership of CPO that were just assumed” with which the alumni Project Directors were familiar which she was not. (UMF 15.)

Plaintiff alleges that certain CPO “favorites” that excluded African American women were given opportunities to attend the NASPA conference in San Antonio and took a two-week-long trip to Cuba. (UMF 31.)

Shortly after Plaintiff started work in late July 2016, she complained to SIOC Advisor Jose Leon that her cubicle was too cold. (UMF 42.) Chidera Izuchukwu, CPO Internship Director, worked to have the air conditioning fixed. (UMF 43.) UCLA’s facilities management department often took several weeks to address any CPO maintenance request. (UMF 44.) The air conditioning issue was resolved in October 2016. (UMF 45.)

Plaintiff alleges that that Huynh and Director of CPO Sandoval ignored her in the hallways and office. (UMF 47.) According to Plaintiff, Huynh informed her in their meeting on November 16, 2016 that CPO staff members did not like Plaintiff because she “rubbed people the wrong way” by stating that she was continuing the prior SHAPE Project Director’s (Kalina Flores) legacy, “and people do not like Kalina.” (UMF 48.) Plaintiff found this conversation with Huynh to be “very professional,” but she found the information Huynh provided to be “concerning.” (UMF 49.)

On April 5, 2017, Plaintiff filed an internal complaint with the UCLA Staff Diversity & Affirmative Action/EEO Compliance Office. (UMF 89.) Plaintiff’s internal complaint stated she believed she was subjected to discrimination and retaliation because of her race and sex (gender), as well as “age (30 – not a recent college grad), professional experience, educational level (PhD), [and] non-UCLA grad.” (UMF 90.)

Plaintiff emailed Huynh on April 11, 2017 to inform her that she could not attend the entire Bruin Day event from 9:00 a.m. to 4:00 p.m. on Saturday, April 15, 2017 because she was unaware that it was a mandatory event and had another event scheduled. (UMF 58.) Plaintiff found it “concerning” and “took offense” when Huynh replied to email to ask “[w]hat is the meeting that conflicts.” (UMF 60.) Plaintiff instead received “approval” from the ASU Chair and ASU Access Coordinator to attend her conflicting meeting and missed part of Bruin Day. (UMF 61.)

At a SIOC hearing on April 18, 2017, Denise Marshall, an African American student who served as the Campus Retention Committee Representative on the Committee, allegedly “initiated a physical altercation” with the student ASU Access Coordinator, Ashley Walker, who is also African American. (UMF 76.) Plaintiff was not present and cannot remember any details about this alleged threat. (UMF 77.) After being told about the alleged threat at the Committee hearing, Plaintiff claims she “felt physically and mentally unsafe” working on campus. (UMF 78.) Plaintiff requested and received approval to work remotely until her contract expired on June 30, 2017. (UMF 79.)

Plaintiff had reserved vehicles to pick up SHAPE students for Shadow Day on May 5, 2017. (UMF 63.) Ruth Tesfai, the CPO Transportation Manager, forgot to send Hayes the codes necessary to access her reserved vehicles the day before the event because Tesfai was out of the office due to a family emergency. (UMF 64.) On May 5, 2017, Plaintiff sent a text message to Tesfai at 6:30 a.m. to request the access codes, and she was scheduled to take the cars at 7:00 a.m. (UMF 65.) Tesfai responded to Plaintiff’s text messages at 7:28 a.m. and provided the codes, which Hayes used to access the vehicles. (UMF 66.)

On May 9, 2017, Plaintiff texted Tesfai to request that her prior vehicle reservation be changed to a van to accommodate a SIOC member who would be joining her at their school site later that day. (UMF 70.) Tesfai told Hayes that she would do the best she could to accommodate her request. (UMF 71.) Plaintiff does not remember if she received the van she requested. (UMF 72.)

Also on May 9, 2017, Plaintiff emailed Sandoval, Huynh, and Izuchukwu to request that the chair she was using be returned to her cubicle. (UMF 73.) Izuchukwu informed Plaintiff that she had taken it because it matched the chairs that belong in the conference room, and Izuchukwu had placed an older chair in Plaintiff’s cubicle instead. (UMF 74.)

Hayes’s employment contract with CPO expired on June 30, 2017, and she did not seek to renew it. (UMF 35.) She took another position at UCLA. (UMF 39.)

EVIDENTIARY OBJECTIONS

Many of Defendant’s objections to Plaintiff’s evidence were filed late. The parties are to meet and confer on the phone as to each of Defendant’s 121 objections to resolve the objections. If they cannot resolve the objections, Defendant is to identify the objections to evidence that is material to the motion.

For example, Defendant objections to Plaintiff’s statement about the date she was hired by Defendant because it contradicts her offer letter. (Objection No. 1.) Does this matter? If it does not matter, why the objection? Defendant objections to the statement “The students that SHAPE serves are mostly African American.” (Objection No. 3.) Whether or not that fact is true or admissible, it would appear to have no bearing on the motion.

Many of the objections have no legal basis. For example, the objection that a declaration statement contradicts deposition testimony has merit only if there is a direct conflict. Defendant inserts this objection many times where there is no direct conflict. Defendant objects to Hayes’ statement, “This caused me to do more work and caused undue stress” as an improper opinion. (Objection No. 92.) A person knows whether she is experiencing stress and having do more work.

These are just a few example. The Court does not have the time or resources to rule on pointless or baseless objections. The Court will rule on the objections after the parties attempt to resolve them and after Defendant identifies the objections to evidence that is actually material to the motion.

LEGAL STANDARD

For each claim in the complaint, the defendant moving for adjudication must satisfy the initial burden of proof by showing that one or more elements of a cause of action cannot be established or that there is a complete defense to a cause of action. (Code Civ. Proc., ; 437c, subd. (p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520 (Scalf).) Then the burden shifts to the plaintiff to show that a triable issue of material fact exists as to that cause of action or a defense. (Code Civ. Proc., ; 437c, subd. (p)(2); Scalf, supra, 128 Cal.App.4th at p. 1520.) To establish a triable issue of material fact, the party opposing the motion must produce “substantial responsive evidence.” (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 162-163.)

DISCUSSION

Plaintiff dismissed her sixth cause of action for negligent retention, supervision, or training, ninth cause of action for wrongful termination in violation of public policy, tenth cause of action for intentional infliction of emotional distress, and eleventh cause of action for equal pay violation July 8, 2020, October 27, 2020, and March 12, 2021. The twelfth cause of action is not brought by Plaintiff.

The remaining causes of action are the first cause of action for discrimination based on race; second cause of action for harassment based on race; third cause of action for harassment based on gender; fourth cause of action for discrimination based on gender; fifth cause of action for failure to prevent harassment/discrimination; seventh cause of action for hostile work environment; and eighth cause of action for retaliation, all pursuant to FEHA. (Gov. Code, ; 12940, subd. (a).)

A. First-Fifth, Seventh Causes of Action – Discrimination, Harassment, Hostile Work Environment

Defendant argues the discrimination causes of action fail because Plaintiff cannot identify any adverse employment action, and the harassment causes of action fail because complained-about conduct to not rise to the level of pervasive extreme conditions. (Motion at p. 17, 21.) The complaint alleges Plaintiff was discriminated against from the beginning of her employment because Defendant did not agree to a higher salary. (Complaint, ¶ 70.) She then experienced cold air conditioning which took months to fix. (Complaint, ¶ 72.) Her project was not allocated sufficient staffing. (Complaint, ¶ 76.) Her supervisors ignored her at the office. (Complaint, ¶ 77.) A student was disrespectful to Plaintiff and was not reprimanded for that. (Complaint, ¶ 82.) Defendant monitored Plaintiff’s work differently than other projects. (Complaint, ¶ 85.) Plaintiff was not selected to attend two conferences. (Complaint, ¶ 86.) Plaintiff was reprimanded for not attending a work event. (Complaint, ¶ 88.) Someone replaced Plaintiff’s chair. (Complaint, ¶ 92.) Her request for vans was unfulfilled. (Complaint, ¶ 93.)

Plaintiff contends, as Defendant predicted, that the adverse employment action was Defendant’s constructive discharge of Plaintiff, and that the same conduct shows Plaintiff was harassed. (Motion at p. 17; Opposition at p. 13, 17.) “In order to establish a constructive discharge, an employee must plead and prove, by the usual preponderance of the evidence standard, that the employer either intentionally created or knowingly permitted working conditions that were so intolerable or aggravated at the time of the employee’s resignation that a reasonable employer would realize that a reasonable person in the employee’s position would be compelled to resign.” (Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1251.) Denial of promotions, exclusion from meetings, criticisms, or a subjective belief that the workplace is not tolerable or that there is no point in staying do not amount to a constructive discharge. (Cloud v. Casey (1999) 76 Cal.App.4th 895, 903-904.)

To establish a claim for harassment, a plaintiff must demonstrate that: (1) she is a member of a protected group; (2) she was subjected to harassment because she belonged to this group; and (3) the alleged harassment was so severe that it created a hostile work environment. (Aguilar v. Avis Rent A Car Sys., Inc. (1999) 21 Cal.4th 121.) Whether harassment exists based upon a hostile work environment is determined by considering all of the circumstances, which may include frequency, severity, and job interference. (Miller v. Dept. of Corrections (2005) 36 Cal.4th 446, 462.) Harassment consists of “conduct outside the scope of necessary job performance, conduct presumably engaged in for personal gratification, because of meanness or bigotry, or for other personal motives” (Reno v. Baird (1998) 18 Cal.4th 640, 646.) Harassment does not include commonly necessary personnel management actions, such as hiring, firing, job assignments, promotion, demotion, performance evaluations, exclusions from meetings, and laying off. (Thompson v. City of Monrovia (2010) 186 Cal.App.4th 860, 879.)

Defendant argues “there is no evidence that Hayes was subject to ‘intolerable’ working conditions at the time she left” her position to take up another position at UCLA because and she did not immediately resign. (Motion at p.18.) The passage of time can “strongly suggests” that an employee did not consider that conduct to be unbearable. (Turner, supra, 7 Cal.4th at p. 1255 [conduct 4-5 years before resignation was “remote”].) Here, all of Plaintiff’s allegations fall within the one-year period of her employment contract. That time period is not obviously too remote.

Defendant also argues the complained-about incidents were trivial. When Defendant rejected Plaintiff’s request for an increased salary, Plaintiff was not yet an employee and therefore this incident cannot be the type of incident that would compel an employee to resign. (UMF 11-13.) To the contrary, Plaintiff thereafter accepted the job. The problem with the air conditioning and chair do not rise to the level of aggravating circumstances. Plaintiff received the vehicles she requested, and when she later changed the request for a van, the transportation manager responded that she would do her best to accommodate the request. (UMF 66, 70.) This was an attempt to be responsive and solicitous. Defendant’s failure to reprimand a student who was rude is not so aggravating that a reasonable person would resign. Regarding the two conferences, Defendant submitted evidence that one was a trip to Cuba that Defendant did not pay for and was a personal trip among some friends. (Tesfai Decl., ¶ 7; Loera Decl., ¶ 6.) Plaintiff did not submit evidence disputing that. The other conference was a work event (ibid.), but not being invited to attend a conference is not an event that would cause a reasonable person to be compelled to resign. Plaintiff was told she had to attend Bruin Day, but when she had a conflict, she received approval to miss part of the day. (UMF 58-61.) Thus no adverse action took place. Plaintiff could not identify a time when her supervisors spoke harshly to her, identified some written communications where she did not “understand the direction of [Huynh’s] tone, and referred to one text exchange where Sandoval was harsh. (UMF 53; Hayes Depo. at pp. 508-509.) Thus this was not a situation where her supervisors were rude on a regular basis or berated her. When Plaintiff felt threatened because another employee threatened a co-worker, she was allowed to work from remotely. (UMF 76-79; Hayes Decl., ¶¶ 29-31.) Even considered together, these events do not add up to such intolerable conditions that would compel a person to resign.

Plaintiff also contends that underfunding, lack of support, and extra monitoring of her project impaired her ability to do her job. Plaintiff submits evidence that an employee of Defendant conducted an analysis of the funding of Plaintiff’s program and determined it was statically underfunded. (Lavinthal Depo. at pp. 26-27.) Underfunding the project for which Plaintiff was responsible such that it “is reasonably likely to impair a reasonable employee’s job performance” could be an adverse employment action. (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1054-1055.)

Defendant argues Plaintiff cannot show a causal connection between the underfunding and treatment of her project and her race or gender because she never received any discipline or review of her job performance. (Motion at pp. 19-20; UMF 36.) Defendant submitted evidence that Plaintiff did not receive any negative performance review, reprimand, or counsel concerning her job performance. (UMF 36; Huynh Decl., ¶ 4.) Defendant satisfied its burden of showing that the underfunding and lack of support for the project did not impair Plaintiff’s performance. Plaintiff did not provide any evidence disputing the fact that she never received a negative job performance review or discipline. (Response to UMF 36.) While she states the underfunding “limited my ability to perform my duties and excel in my job” (Hayes Decl., ¶ 32), that did not result in any adverse employment action such as a negative review, reprimand, discipline, or demotion. Plaintiff’s subjective belief that the underfunding of the project limited her ability to perform and excel does not amount to constructive discharge. (Cloud, supra, 76 Cal.App.4th at p. 895.)

While Hayes experienced difficulties, the undisputed evidence shows that conditions were not sufficiently extraordinary and egregious to compel a reasonable employee to resign or to rise to the level of harassment. Therefore, summary adjudication is granted on these causes of action.

B. Eighth Cause of Action – Retaliation

To establish a prima facie case of retaliation under FEHA, a plaintiff must show “(1) he or she engaged in a ‘protected activity,’ (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer’s action. [Citations.] Once an employee establishes a prima facie case, the employer is required to offer a legitimate, nonretaliatory reason for the adverse employment action. [Citation.] If the employer produces a legitimate reason for the adverse employment action, the presumption of retaliation ‘‘‘drops out of the picture,’’’ and the burden shifts back to the employee to prove intentional retaliation. [Citation.]” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.)

On April 5, 2017, Plaintiff filed an internal complaint alleging discrimination and retaliation. (UMF 89.) On May 23, 2017, she reported Huynh and Sandoval were mismanaging funds and violating other rules. (UMF 91.) Defendant argues Plaintiff “alleges no adverse employment action other than the constructive termination,” and because that allegation fails, the retaliation claim fails as well. (Motion at p. 22.) Plaintiff clarifies that she alleges that after filing the complaint, she experienced the removal of her chair, the ignoring of her requests for vans, and the ignoring her communications. As discussed above, these are not adverse employment actions. She also asserts, “Huynh and Sandoval directed Business Officer Angela DeCenzo to start forwarding negative emails regarding Dr. Hays to build a negative record in HR,” but she does not cite any evidence supporting that assertion and did not allege that act of retaliation in her complaint. (Opposition at p. 18.)

CONCLUSION

The motion for summary judgment, or in the alternative summary adjudication, is GRANTED.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. Parties intending to appear are STRONGLY encouraged to appear remotely.



Case Number: ****7050    Hearing Date: May 5, 2021    Dept: 48

[TENTATIVE] ORDER RE: DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

On September 27, 2017, Plaintiffs Kalina Flores (“Plaintiff”), Mia Watson, Sherrae Hayes filed this action against Defendants Regents of the University of California (“Defendant”), Antonio Sandoval, and Thuy Huynh, alleging discrimination and harassment based on race and gender; failure to prevent harassment, discrimination, and retaliation; hostile work environment; and retaliation, all in violation of the Fair Employment and Housing Act (“FEHA”). Flores also alleged defamation. Plaintiffs later dismissed Sandoval and Huynh. On April 22, 2020, Defendant filed a motion for summary judgment, or in the alternative, summary adjudication.

As an initial matter, Plaintiff argues that the Court should strike Defendant’s separate statement and deny the motion because the separate statement “stands replete with purported material facts which make no difference in the disposition of the Motion.” (Opposition at pp. 11-12.) Plaintiff provides no relevant authority to support denying the motion on this basis, and the Court declines to do so.

EVIDENTIARY OBJECTIONS

Some of Defendant’s objections to Plaintiff’s evidence, in the form of objections to Plaintiff’s separate statement of facts, are not in the proper form. Defendant primarily argues that the purported facts misstate the cited evidence, but it does not identify its objections to the underlying evidence. The objections should be to the underlying evidence, specifically identifying the document and portion to which Defendant objects. (See California Rules of Court, rule 3.1354(b).)

The Court addresses some specific objections below. As for the rest, the parties are to meet and confer on the phone to try to resolve the objections. Defendant is then to identify to the Court the specific objections to material evidence for which a ruling is required.

BACKGROUND FACTS

Each project under UCLA’s Student Initiated Outreach Center (“SIOC”) umbrella targets a different underrepresented community. (Undisputed Material Facts “UMF” 1.) Each project has a full-time Project Director hired on a one-year contract (twice renewable, for a total of three years), and student employees supervised by the Project Director. (UMF 3.)

SHAPE is a SIOC project focusing on students of African descent and is directed by the UCLA Afrikan Student Union (“ASU”). (UMF 2.) As of January 30, 2015, SHAPE was placed on probation. (UMF 9.) Prior to Flores’s employment, SHAPE secured an external grant with Centinela Valley School District (“Centinela Valley”). (UMF 52.)

On February 23, 2015, Plaintiff began working as the SHAPE Project Director. (UMF 12.) Her February 23, 2015 offer letter from Sandoval specified that the position was a contract appointment with a fixed term ending June 30, 2015, “unless it is extended prior to that date in writing and signed by all parties.” (UMF 10.) When Plaintiff took the position, she was told that her predecessor was not fulfilling his role and the CPO received complaints from school sites regarding his performance. (UMF 8.)

During the time that Plaintiff was the SHAPE Project Director, the CPO Director was Sandoval, the CPO Associate Director was Huynh, and the SIOC Advisor was Jose Leon. (UMF 5.) Plaintiff reported to Leon during the entirety of her employment. (UMF 6.)

Shortly after she became the SHAPE Project Director, Plaintiff complained about the air conditioning to Leon and Chidera Izuchukwu, a woman of African descent who served as CPO Internship Director and provided office management support to CPO. (UMF 14.) Plaintiff’s cubicle was too cold, and she asked that the air be adjusted. (UMF 15.) Each time Plaintiff complained, Izuchukwu put in the request to have it adjusted, but it often took several weeks for facilities management to address the requests and there was no formal ticket process to monitor the status of requests. (UMF 16; Izuchukwu Decl. ¶ 4.) Facilities eventually redirected the vents to blow away from Plaintiff’s cubicle. (UMF 17.) Plaintiff alleges that she later learned when a different employee requested that the air conditioning be turned down, the vent was closed entirely. (UMF 18.)

In February 2015, Plaintiff asked Izuchukwu for a leather portfolio that CPO provided to some people. (See UMF 20; Response to UMF 20.) In Fall 2015, CPO gave sweatshirts to some staff, and Plaintiff was not offered one. (UMF 20.)

In May 2015, Plaintiff applied and was approved for a second term as the SHAPE Project Director. (UMF 23-24.) This term ran from July 1, 2015 through June 30, 2016. (UMF 25.)

According to Plaintiff, she experienced “backlash” after she expressed her opinion about CPO practices. (UMF 27.) Plaintiff testified that she questioned why SHAPE did not receive unused workstudy funds and was told that the “overages” go back to the CPO, not the individual project. (UMF 28.)

In summer 2015, Plaintiff expressed her frustration about not receiving SIOC funding for two of her school sites and felt that different rules applied to her. (UMF 31.) Plaintiff alleges that SHAPE’s funding cut based on her predecessor’s slow start was an act of differential treatment. (UMF 34.) The SHAPE 2015 End of the Year Evaluation states “[r]ecurring leadership struggles permeated throughout the project, and as a result . . . objectives fell short.” (UMF 36.)

On October 6, 2015, during a department-wide CPO meeting, there was a discussion about a CPO employee discussing an open Title IX case with his roommate. (UMF 37.) Huynh, Sandoval, and Leon counseled those present at the meeting that they should refrain from discussing open Title IX issues, which is a violation of university policy. (UMF 38.) Plaintiff alleges that Huynh and Sandoval told all those present that they could be terminated for “gossiping” about their grievances with the CPO. (UMF 39.) Some of the employees also discussed the tumultuous history between the student groups and CPO leadership. (UMF 40.) Leon observed that Plaintiff became more animated and unprofessional in her tone as she alleged that the CPO was biased against certain student groups such as ASU. (UMF 41.) On October 7, 2015, Leon requested a meeting with Plaintiff to discuss her tone and behavior at the meeting the prior day. (UMF 42.) Plaintiff testified that after her meeting with Leon, she felt that the alleged treatment she was receiving was the result of her race and gender. (UMF 45.) Also on October 7, 2015, Flores requested a meeting with Sandoval to discuss her meeting with Leon. (UMF 46.)

On October 14, 2015, Plaintiff spoke with Richard Stevenson and Williams. (UMF 132.) Plaintiff alleges that Stevenson told her that he walked into a meeting between Sandoval, Huynh, Leon, and other CPO staff, and they told him that Flores was only there to cause “trouble,” that he should disassociate himself from her, and that Chancellor Gene Block, Vice Chancellor Yanina Montero, and Deluca had already been informed of the incident between Flores and Leon. (UMF 133.)

According to Plaintiff, on October 22, 2015, Sandi Wemigwase allegedly told Plaintiff that Sandoval, Huynh, and Leon “spent an entire trip talking so badly about you . . . They are documenting everything you do, every time you come in and leave work.” (UMF 47, 137.)

After her conversation with Wemigwase, Plaintiff decided to file an internal complaint against the CPO, and on October 28, 2015, she submitted a complaint to Dion Raymond, Discrimination Prevention officer. (UMF 48-49, 115-116.) On November 2, 2015, Plaintiff submitted her completed intake form, and Raymond directed Plaintiff’s complaint to the Staff Compliance Office as the appropriate office to receive her complaint. (UMF 51, 117-118.) On January 31, 2019, the investigator completed her investigation of Plaintiff’s internal complaint. (UMF 122.)

As of February 2016, neither Tesfai nor DeCenzo (Hernandez) was aware of Plaintiff’s complaint against Sandoval and Huynh. (UMF 121.) Sandoval and Huynh were not aware of Plaintiff’s internal complaint until March 18, 2016. (UMF 121.)

Plaintiff alleges that in February 2016, Angela (De Cenzo) Hernandez, CPO Business Officer, delayed SHAPE’s hiring process by not responding to her calls or emails. (UMF 67.) Plaintiff testified that she had to book a room for processing the new hires that was inconvenient because it did not have access to a free printer and was far from the CPO office. (UMF 69.) Plaintiff alleges that when she went back to the CPO office to make copies, she overheard CPO Fiscal Officer Cinthia Loera and CPO staff member Brittany Bolden laugh about SHAPE’s hiring process. (UMF 70.)

On February 18, 2016, CPO transportation manager Ruth Tesfai sent an email to Plaintiff advising her to “please review your Transportation request because there wasn’t a request from this past Tuesday and I was told you came by for the keys.” (UMF 73.) Plaintiff felt that she was being singled out due to the email she received from Tesfai. (UMF 74.)

The deadline to apply for the SHAPE Project Director position for the 2016-2017 Academic Year was June 16, 2016. (UMF 77.) Plaintiff’s employment contract with CPO expired on June 30, 2016, and she did not seek to renew it. (UMF 78.) No one told Plaintiff that she should not apply for another term. (UMF 79.) Plaintiff testified that she decided not to reapply when she “realized that the environment was not going to get better and that it was actually getting increasingly worse.” (UMF 80.) Plaintiff never received any written discipline for her job performance. (UMF 83.)

In October 2016, Plaintiff met with Sherrae Hayes, and Hayes told her that either Sandoval, Huynh, or Leon told Hayes that she (Hayes) may not be able to return to some school sites because of Flores’s performance. (UMF 140.)

Plaintiff filed her DFEH charge on June 27, 2017, and then amended it on June 30, 2017. (UMF 85, 96.) Plaintiff testified that she could not recall anything between June 20-30, 2016 that she found offensive on the basis of her race or gender. (UMF 82, 97-98.)

LEGAL STANDARD

For each claim in the complaint, the defendant moving for adjudication must satisfy the initial burden of proof by showing that one or more elements of a cause of action cannot be established or that there is a complete defense to a cause of action. (Code Civ. Proc., ; 437c, subd. (p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520 (Scalf).) Then the burden shifts to the plaintiff to show that a triable issue of material fact exists as to that cause of action or a defense. (Code Civ. Proc., ; 437c, subd. (p)(2); Scalf, supra, 128 Cal.App.4th at p. 1520.) To establish a triable issue of material fact, the party opposing the motion must produce “substantial responsive evidence.” (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 162-163.)

DISCUSSION

Plaintiff dismissed her sixth, ninth, tenth, and eleventh causes of action on July 8, 2020, October 27, 2020, and March 12, 2021.

Defendant moved for summary judgment and summary adjudication on Plaintiff’s first cause of action for discrimination based on race; second cause of action for harassment based on race; third cause of action for harassment based on gender; fourth cause of action for discrimination based on gender; fifth cause of action for failure to prevent harassment/discrimination; seventh cause of action for hostile work environment; and eighth cause of action for retaliation, all under FEHA. (Gov. Code, ; 12940, subd. (a).)

Defendant also moved for summary adjudication on Plaintiff’s twelfth cause of action for defamation. Plaintiff states she already dismissed this cause of action, but the docket does not show any such request for dismissal.

A. First, Fourth Causes of Action – Discrimination

Defendant argues that Plaintiff’s discrimination causes of action are barred by the statute of limitations. An employee must file an administrative complaint with DFEH within one year after the alleged unlawful action, and he or she must file suit within one year of a right-to-sue letter. (Govt. Code, ;; 12960, 12965, subd. (b).) The plaintiff cannot revive expired claims by filing a new DFEH complaint many years after the alleged discrimination took place. (Acuna v. San Diego Gas & Electric Co. (2013) 217 Cal.App.4th 1402, 1417.)

Plaintiff filed her DFEH charge on June 27, 2017, and then amended it on June 30, 2017. (UMF 85, 96.) Defendant argues that all of the allegedly discriminatory conduct occurred before June 26, 2016, making all causes of action time-barred. (Motion at pp. 8, 13.) The complaint alleges the discriminatory practices began immediately after Plaintiff was hired in January 2015 when Defendant ignored her request to turn down the air conditioning. (Complaint, ¶ 43.) In February 2015, Plaintiff did not receive a leather portfolio that other staff received. (Complaint, ¶ 45.) In the fall of 2015, Plaintiff did not receive a sweatshirt other staff received. (Complaint, ¶ 46.) Sometime in 2015, Plaintiff did not receive funding for her programs. (Complaint, ¶ 48.) The complaint states that in the fall of 2016, Plaintiff submitted a funding proposal, which Defendant’s staff criticized in a rude fashion, but because Plaintiff’s employment ended on June 30, 2016, the Court assumes the correct date is “the fall of 2015.” (Complaint, ¶ 50.) In October 2015, Plaintiff felt targeted, was threatened with termination and yelled at, and told Sandoval and Huynh were out to get her. (Complaint, ¶¶ 51-54, 60.) In the winter of 2015, Defendant failed to respond to Plaintiff’s requests, questioned her integrity and work ethic, did not reserve rooms for her, and criticized her behind her back. (Complaint, ¶¶ 63-66.)

Because Plaintiff filed her DFEH charge on June 27, 2017, and discriminatory conduct must have occurred after June 26, 2016 and before her departure on June 30, 2016 to avoid the statute of limitations. The conduct alleged in the complaint occurred before June 26, 2016, and Plaintiff testified that she could not recall anything between June 20 and June 30, 2016 that she found offensive on the basis of her race or gender. (UMF 82, 97-98.) Defendant has met its initial burden of showing the alleged harassing conduct occurred before June 26, 2016 and therefore is time-barred.

Plaintiff argues she experienced a lack of funding, bullying, and ostracization up to her last day at UCLA. (Opposition at p. 13.) Plaintiff’s declaration states, “Up until my last day at UCLA on June 30, 2016, I continued to experience freezing temperatures at my desk, a lack of funding for my project (leading to a lack of supplies and resources for staff and students), bullying, and ostracization.” (Flores Decl. ¶ 31.) This statement contradicts her earlier deposition testimony that she did not recall anything offensive occurring in the last ten days of her employment. Plaintiff cannot create disputed facts and avoid summary judgment with a declaration that contradicts her own prior sworn testimony. (Archdale v. American Internat. Specialty Lines Ins. Co. (2007) 154 Cal.App.4th 449, 473; Shiver v Laramee (2018) 24 Cal.App.5th 395, 401 [on summary judgment, party “is bound by his deposition testimony”].)

Accordingly, summary adjudication of the first and fourth causes of action is granted as time-barred.

B. Second, Third, and Seventh Cause of Action – Harassment, Hostile Work Environment

Defendant argues the second and third causes of action for harassment are also time-barred for the reasons discussed above. Instead of identifying any particular act of harassment occurring between June 26 and June 30, 2016, Plaintiff argues, “Defendant crafted so intolerable of conditions such that the conditions forced Ms. Flores to resign.” (Opposition at p. 12.) Likewise, the seventh cause of action complaint alleges, “This harassment and hostile work environment eventually led to Plaintiffs Flores’ and Hayes’ constructive termination and Ms. Watson [s] resignation.” (Complaint, ¶ 157.)

“In order to establish a constructive discharge, an employee must plead and prove, by the usual preponderance of the evidence standard, that the employer either intentionally created or knowingly permitted working conditions that were so intolerable or aggravated at the time of the employee’s resignation that a reasonable employer would realize that a reasonable person in the employee’s position would be compelled to resign.” (Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1251.)

Defendant argues that Plaintiff cannot prove she was constructively discharged because it is undisputed that her contract expired and she chose not to renew it. (Motion at p. 10; UMF 78.) It is also undisputed that no one told Flores she should not apply for a third term. (UMF 79.) Defendant argues that the nonrenewal of a contract cannot be the basis of a wrongful termination claim, citing Touchstone Television Productions v. Superior Court (2012) 208 Cal.App.4th 676.) That case held, “Decisional law does not allow a plaintiff to sue for wrongful termination in violation of public policy based upon an employer’s refusal to renew an employment contract.” (Id. at p. 680.) Defendant also cites Daly v. Exxon Corp. (1997) 55 Cal.App.4th 39, which held that there is no cause of action for tortious nonrenewal of an employment contract in violation of public policy. (Id. at pp. 45-46.)

Plaintiff argues that the fact that her contract term ended on June 30, 2016 does not bar a claim of constructive discharge, citing Wilson v. Murillo (2008) 163 Cal. App.4th 1124. (Opposition at p. 13.) That case states that “nonrenewal of contracts” can be an adverse employment action. (Id. at p. 1134-1135.) The case does not discuss whether a plaintiff’s decision to not seek a renewal of a contract can be a constructive discharge.

None of these cases directly addresses whether a plaintiff can sue for constructive discharge based on intolerable conditions after deciding not to seek renewal of a contract. However, just as an employer can wrongfully terminate an employee by not renewing a contract, it would seem that an employer can intentionally create or knowingly permit working conditions that are so intolerable or aggravated that an employee decides not seek renewal of a contract that is ending shortly. In both cases there is no affirmative act – no firing of the employee and no resignation by the employee. But the result is the same – the employee is let go (whether by firing or nonrenewal) or the employee has no choice but to leave (whether by resignation or not renewing). Defendant has not shown that as a matter of law there can be no constructive discharge when an employee decides not to apply for renewal of a contact.

Defendant next argues that Plaintiff cannot show the working conditions were intolerable at the time she decided not to reapply for the position because she did not resign immediately and the events were annoyances or trivial. (Motion at pp. 11, 14.) The passage of time can “strongly suggests” that an employee did not consider that conduct to be unbearable. (Turner, supra, 7 Cal.4th at p. 1255 [conduct 4-5 years before resignation was “remote”].) Here the earliest incident was in January 2015 when Defendant ignored her request to turn down the air conditioning. (Complaint, ¶ 43.) That was about eighteen months before Plaintiff departed in June 2016. While that incident could be too remote, other incidents were six months to a year before her departure, such as the alleged lack of funding for her project and failure to support the project. (Complaint, ¶¶ 50, 63-66; UMF 32, 35, 67-70.) That time period is not obviously too remote.

Not all of Plaintiff’s complaints are about annoyances or trivial matters such as not receiving a sweatshirt or a portfolio. She also contends that underfunding and lack of support impaired her ability to do her job. Plaintiff submits evidence that an employee of Defendant conducted an analysis of the funding of Plaintiff’s program and determined it was statically underfunded. (Lavinthal Depo. at pp. 26-27.) (Defendant objects to the Lavinthal deposition excerpts on the grounds that the testimony is speculative, lacks personal knowledge, lacks foundation and is irrelevant. The relevant testimony is that Lavinthal is a statistician employed by Defendant, she did a statistical analysis of the program, and she concluded it was underfunded. She has personal knowledge and the foundation to testify about her employment, the analysis she did, and the conclusions she reached. Defendant also objects that her testimony is hearsay. The witness’s testimony about the actions the witness took and conclusions the witness reached is not hearsay.) A reasonable jury could infer that underfunding the project for which Plaintiff was responsible would likely impair her performance. (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1054-1055.)

Next, Defendant argues Plaintiff cannot show a causal connection between her work conditions and her race or gender. (Motion at p. 12.) In the context of a summary judgment motion, “[i]f the employer presents admissible evidence either that one or more of plaintiff’s prima facie elements is lacking, or that the adverse employment action was based on legitimate, nondiscriminatory factors, the employer will be entitled to summary judgment unless the plaintiff produces admissible evidence which raises a triable issue of fact material to the defendant’s showing. . . . [I]n the case of a motion for summary judgment or summary issue adjudication, the burden rests with the moving party to negate the plaintiff’s right to prevail on a particular issue. . . . In other words, the burden is reversed in the case of a summary issue adjudication or summary judgment motion.” (Arteaga v. Brink’s Inc. (2008) 163 Cal.App.4th 327, 344 [citations and quotations omitted].)

Of the two choices, Defendant takes the first – presenting admissible evidence that one or more of plaintiff’s prima facie elements is lacking. But Defendant does not present admissible evidence. Instead, Defendant argues that Plaintiff “cannot show a causal nexus” because “there is no evidence that any adverse employment decision . . . occurred because of [Plaintiff’s] race or gender. (Motion at p. 12.) On a summary judgment motion, it is “not enough to assert that [the plaintiff] has no evidence supporting an element of each cause of action; a moving defendant ‘must indeed present “evidence,”’ such as ‘ “affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice” must or may “be taken.”’ [Citation.]” (Zoran Corp. v. Chen (2010) 185 Cal.App.4th 799, 808.) Defendant’s evidence must show that “plaintiff does not possess, and cannot reasonably obtain, needed evidence.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854.) Defendant argues that Plaintiff’s evidence is speculative, but Defendant does not cite evidence showing Plaintiff cannot reasonably obtain evidence of a causal connection. For example, Defendant did not cite to a interrogatory asking Plaintiff to state all facts showing a causal connection. The response to that type of question could provide evidence that Plaintiff does not have and cannot reasonably obtain the evidence. (The UF citations on pages 12-13 of the Motion do not seem to correspond to Defendant’s Separate Statement. For example at the top of page 13, Defendant cites UF 115 for the statement about the findings of the UCLA internal investigation. But UF 115 merely refers to Plaintiff deciding to file an internal complaint.)

Therefore summary adjudication is denied on these causes of action.

C. Eighth Cause of Action – Retaliation

To establish a prima facie case of ;retaliation ;under FEHA, a plaintiff must show “(1) he or she engaged in a ‘protected activity,’ (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer’s action. [Citations.] Once an employee establishes a prima facie case, the employer is required to offer a legitimate, nonretaliatory reason for the adverse employment action. ; [Citation.] ; If the employer produces a legitimate reason for the adverse employment action, the presumption of ;retaliation ;‘‘‘drops out of the picture,’’’ and the burden shifts back to the employee to prove intentional ;retaliation. [Citation.]” (Yanowitz, supra, 36 Cal.4th at p. 1042.)

Defendant argues that Plaintiff cannot identify retaliation that occurred after Plaintiff engaged in a protected activity. (Motion at p. 16.) Plaintiff engaged in protected activity when she filed her first internal complaint on October 28, 2015. (UMF 50.) Plaintiff alleges only two incidents after filing this complaint.

First, Plaintiff identifies a February 18, 2016 email advising her to “please review your Transportation request because there wasn’t a request from this past Tuesday and I was told you came by for the keys.” (UMF 73.) “ ‘Minor or relatively trivial adverse actions or conduct by employers or fellow employees that, from an objective perspective, are reasonably likely to do no more than anger or upset an employee cannot properly be viewed as materially affecting the terms, conditions, or privileges of employment and are not actionable.’ [Citation.]” (Doe v. Department of Corrections & Rehabilitation (2019) 43 Cal.App.5th 721, 734.) This is minor or trivial, if it can even be considered an adverse action.

Second, in February 2016, management delayed Plaintiff’s hiring process, responded to a third-party that “Hiring will begin once Kalina let’s us know,” and failed to reserve rooms in the CPO facilities for hiring, forcing Plaintiff to secure a room ten minutes across campus that lacked copying and printing services. (Complaint ¶¶ 64-65; UMF 67, 69.) Defendants provide evidence that when these incidents occurred, Plaintiff’s supervisors were not aware of Plaintiff’s complaint, and therefore the incidents could not have been done in retaliation. (UMF 121.) Defendant has met its initial burden.

Plaintiff argues that in addition to her allegations regarding the hiring process, the “underfunding bullying” intensified and staff referred to SHAPE hiring as a “disaster.” (Opposition at p. 19; see Flores Decl. ¶¶ 26-28.) Plaintiff provides no evidence of additional “underfunding bullying,” and she does not provide evidence that the additional events occurred after her supervisors became aware of Plaintiff’s complaint..

Accordingly, summary adjudication is granted on this ground.

C. Fifth Cause of Action – Failure to Prevent

Failure to prevent harassment, discrimination, or retaliation in violation of FEHA requires that (1) plaintiff was an employee of defendant, (2) plaintiff was subjected to discrimination or retaliation in the course of employment, (3) defendant failed to take all reasonable steps to prevent the discrimination or retaliation, (4) plaintiff was harmed, and (5) defendant’s failure to take all reasonable steps to prevent discrimination and/or retaliation was a substantial factor in causing plaintiff’s harm. (CACI 2527.)

Defendant argues that because Plaintiff cannot establish discrimination, harassment, or retaliation, the fifth cause of action must also fail. (Motion at p. 17.) Because summary adjudication is denied on the harassment causes of action, it is also denied on this cause of action.

D. Twelfth Cause of Action – Defamation

Plaintiff states that she dismissed this cause of action. (Opposition at p. 20; see Response to UMF 131-143.) However, she has not filed a request for dismissal. If she intends to dismiss this cause of action, she should indicate so at the hearing.

CONCLUSION

The motion for summary judgment, or in the alternative summary adjudication, is GRANTED as to the first, fourth, and eighth causes of action and is otherwise DENIED.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. Parties intending to appear are STRONGLY encouraged to appear remotely.



Case Number: ****7050    Hearing Date: May 4, 2021    Dept: 48

[TENTATIVE] ORDER RE: DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

On September 27, 2017, Plaintiffs Mia Watson (“Plaintiff”), Sherrae Hayes, and Kalina Flores filed this action against Defendants Regents of the University of California (“Defendant”), Antonio Sandoval, and Thuy Huynh, alleging discrimination and harassment based on race and gender; failure to prevent harassment, discrimination, and retaliation; hostile work environment; and retaliation, all in violation of the Fair Employment and Housing Act (“FEHA”). Plaintiffs later dismissed Sandoval and Huynh. On May 1, 2020, Defendant filed a motion for summary judgment, or in the alternative, summary adjudication.

On April 23, 2021 Plaintiff filed a notice of errata and attached a corrected opposition. On April 27, 2021, Defendant filed an objection to Plaintiff’s notice of errata, asking the Court to strike the opposition attached to the notice of errata. The corrected opposition makes only minor clerical changes to the original opposition. If Defendant requires additional time to address the corrected opposition, the Court will continue the hearing by a few days. Otherwise, the objection is overruled

Plaintiff argues that the Court should strike Defendant’s separate statement and deny the motion because the separate statement “stands replete with purported material facts which make no difference in the disposition of the Motion.” (Opposition at p. 11.) (The Court cites the page numbers of the corrected opposition filed with Plaintiff’s notice of errata.) Plaintiff provides no relevant authority to support denying the motion on this basis, and the Court declines to do so.

EVIDENTIARY OBJECTIONS

Many of Defendant’s objections to Plaintiff’s evidence, in the form of objections to Plaintiff’s separate statement of facts, are not in the proper format. Defendant primarily argues that the purported facts misstate the cited evidence, but it does not identify its objections to the underlying evidence. The objections should be to the underlying evidence, specifically identifying the document and portion to which Defendant objects. (See California Rules of Court, rule 3.1354(b).)

The parties are to meet and confer on the phone as to each of Defendant’s 120 objections to resolve the objections. If they cannot resolve the objections, Defendant is to identify the objections to evidence that is material to the motion.

BACKGROUND FACTS

The Campus Retention Center (“CRC”) and Student Initiated Outreach Center (“SIOC”) are arms of UCLA’s Community Programs Office (“CPO”). (Undisputed Material Facts “UMF” 3.) Plaintiff, an African American woman, worked at UCLA for approximately 18 years, in various positions. (UMF 1, 4, 62.) In 2006, the CPO hired Plaintiff as the Student Initiated Access Committee advisor. (UMF 4.) Sandoval and Huynh supervised Plaintiff. (UMF 15.) In 2009, Plaintiff made a lateral move to become the CRC advisor. (UMF 7.)

Plaintiff testified that the environment became hostile around 2000 and roughly 2008 and 2009, and the environment “increasingly became intolerable” when Sandoval became the CPO Director in 2008. (UMF 49.)

In 2009, Watson questioned a funding proposal made by SEACLEAR, a Vietnamese student association, during an annual project funding hearing. (UMF 16; AMF 5.) Plaintiff alleges that Sandoval reprimanded her for harshly criticizing the Southeast Asian community, but no other advisor was reprimanded for asking critical questions. (UMF 17; Response to UMF 17; AMF 5.)

Plaintiff also alleges that she went to the Dean’s Office to discuss her benefits and job evaluations after returning from maternity leave in January 2011. (UMF 19, 84; AMF 6.) According to Plaintiff, at the next CPO staff meeting, Sandoval allegedly told the group that it would be “insubordination” to contact an administrator at the Dean’s Office without his prior approval. (UMF 20; AMF 6.) Plaintiff alleges that Sandoval’s statement was his way of reprimanding her for going to the Dean’s Office to ask about her benefits and job evaluations. (UMF 21.)

According to Plaintiff, when the Associate CPO Director resigned in the fall of 2013, Sandoval told Plaintiff the CPO would not be filling the vacant position for budgetary reasons, but a job opening was posted for the position the following Monday. (UMF 22; AMF 8.) Plaintiff was interested in the position but did not apply because she interpreted Sandoval’s alleged statement to be his way of telling her that he would not hire her and therefore there was no need for her to apply. (UMF 23; AMF 8.) Huynh was hired to fill the position. (AMF 8.)

Plaintiff alleges that in 2013 and 2014, she asked Sandoval for a raise but did not receive one on either occasion. (UMF 24.) With respect to the 2014 request, Watson alleges that Sandoval told her he denied the request because it would mean she would make more money than Huynh, who was her superior and the CPO Associate Director. (UMF 24; AMF 10.) Plaintiff also alleges that Sandoval removed her from the CRC chair selection process and gave those duties to Huynh. (UMF 25; AMF 9.)

During the planning of an on-campus diversity symposium, Plaintiff recommended a reflection and moment of silence to commemorate 9/11, and she was encouraged to facilitate the activity herself. (AMF 11.) The day before the program, Sandoval and Huynh told her that she would not be allowed to participate in the reflection activity and instead told her to sit on a panel to talk about how to help low-income students. (AMF 11.) After this, Plaintiff explained that her work environment was deteriorating and requested a transfer from the Vice Chancellor of Student Affairs, Yanina Montero. (AMF 12.) Plaintiff went to the campus OMBUDS office and Staff and Faculty Counseling Center for recommendations on how to improve her work environment and express her frustration about the work environment and direction of the CPO. (AMF 13.)

Plaintiff went to Murphy Hall to complain in person with administrators twice, in September or November 2014 and June or July 2016. (UMF 85; AMF 18.) Regarding her 2014 complaint, Plaintiff sent an email to Associate Vice Chancellor Janina Montero stating that she was experiencing microaggressions. (UMF 86; AMF 18.) In June or July 2016, Plaintiff complained to Associate Vice Chancellor Monroe Gordon. (UMF 87.)

In 2013 and 2014, Plaintiff received two positive performance reviews stating she met expectations. (UMF 65.) In 2016, Sandoval and Huynh gave Plaintiff a performance evaluation of 2 out of 5. (AMF 22.)

At some point during the 2015-2016 academic year, Plaintiff requested funding to attend work related conferences. She had to follow up several times because she was initially denied access to a gas card use of a vehicle for a business conference. (UMF 26; AMF 16.) Plaintiff alleges that she was required to make a report after the conference to justify the funding but no one else was required to do so. (UMF 27; AMF 16-17.)

Sometime between 2015 and 2016, Plaintiff was offered a position in the academic advancement program at UCLA, but she turned it down due, in part, to the position being a lateral move with similar compensation. (UMF 38, 60.)

In 2016, Plaintiff “became very clear that [her] only option was to find another role outside of UCLA.” (UMF 34, 53.) She informed Sandoval that she was looking for other employment and asked him to send potential jobs to her if he came across any. (UMF 36.) Sandoval forwarded her at least one job opportunity. (UMF 37.)

Plaintiff was the CRC advisor until January 2017, when she began working as the Director of the Academic Resource Center at Loyola Marymount University. (UMF 8, 30.) Sandoval and Huynh served as references for Plaintiff during the application process for the LMU position, and they both provided positive feedback. (UMF 39.) Plaintiff testified that she believed that Thuy gave a favorable reference, and Sandoval congratulated her on receiving the job offer. (UMF 40.) The CPO threw a going away party and gave her a $500 gift card as a parting gift. (UMF 41.) Plaintiff’s annual salary at UCLA when she resigned was $52,000, and her starting annual salary at LMU was approximately $89,000. (UMF 43.)

Plaintiff was never terminated or demoted while she worked for the CPO, and her pay never decreased. (UMF 28-29, 66.) Plaintiff received pay increases and merit pay during her employment, and since 2013, she received three out of four potential STAR Awards that included a monetary sum. (UMF 42, 56; see UMF 58, 66.) Plaintiff did not receive a merit increase in 2016. (AMF 22.)

LEGAL STANDARD

For each claim in the complaint, the defendant moving for adjudication must satisfy the initial burden of proof by showing that one or more elements of a cause of action cannot be established or that there is a complete defense to a cause of action. (Code Civ. Proc., ; 437c, subd. (p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520 (Scalf).) Then the burden shifts to the plaintiff to show that a triable issue of material fact exists as to that cause of action or a defense. (Code Civ. Proc., ; 437c, subd. (p)(2); Scalf, supra, 128 Cal.App.4th at p. 1520.) To establish a triable issue of material fact, the party opposing the motion must produce “substantial responsive evidence.” (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 162-163.)

DISCUSSION

Plaintiff dismissed her sixth cause of action for negligent retention, supervision, or training, tenth cause of action for intentional infliction of emotional distress, and eleventh cause of action for equal pay violation July 8, 2020, and March 12, 2021. The ninth and twelfth causes of action are not brought by Plaintiff.

The remaining causes of action are the first cause of action for discrimination based on race; second cause of action for harassment based on race; third cause of action for harassment based on gender; fourth cause of action for discrimination based on gender; fifth cause of action for failure to prevent harassment/discrimination; seventh cause of action for hostile work environment; and eighth cause of action for retaliation, all pursuant to FEHA. (Gov. Code, ; 12940, subd. (a).)

A. First, Second, Third, Fourth Causes of Action – Statute of Limitations

Defendant argues that Plaintiff’s discrimination and harassment causes of action are barred by the statute of limitations. An employee must file an administrative complaint with DFEH within one year after the alleged unlawful action, and he or she must file suit within one year of a right-to-sue letter. (Govt. Code, ;; 12960, 12965, subd. (b).) The plaintiff cannot revive expired claims by filing a new DFEH complaint many years after the alleged discrimination took place. (Acuna v. San Diego Gas & Electric Co. (2013) 217 Cal.App.4th 1402, 1417.)

Plaintiff received her right to sue letter on July 6, 2017 (UMF 44), and therefore, Defendant argues the discriminatory and harassing conduct must have occurred after July 6, 2016. Defendant argues that all of the allegedly discriminatory and harassing conduct occurred before July 6, 2016, making all causes of action time-barred because the 2015-2016 academic year ended on June 10, 2016. (Motion at pp. 5, 14; UMF 46.) Defendant cites Plaintiff’s deposition testimony, in which she stated that the last actionable conduct occurred at some point during the 2015-2016 academic year. (Ibid.) Although Defendant failed to file the cited pages of Plaintiff’s testimony, Plaintiff does not dispute that she so testified at her deposition (Response to UMF 45), and the latest date of alleged conduct in the Complaint was “[d]uring the academic year 2015-2016.” (Complaint ¶¶ 39-41.) Defendant has therefore met its initial burden.

Plaintiff contends that she testified in her deposition that the last discriminatory act occurred in July 2016. (Opposition at p. 14.) She too failed to file the pertinent pages of her deposition. But Plaintiff does not provide evidence or point to any allegations of harassing or discriminating behavior in July 2016. The evidence shows that the only pertinent event potentially occurring in July 2016 was Plaintiff’s meeting with Vice Chancellor Gordon sometime at “the end of June beginning of July 2016,” when she “realized that there wasn’t really going to be support for [her] to address these concerns that [she] had.” (UMF 87; Watson Depo. at pp. 543, 599.) She does not contend that the meeting with Gordon itself constituted discriminatory or harassing conduct. Rather, the conduct about which she complained to Gordon must have occurred before the meeting with Gordon, meaning the conduct must have occurred before the end of June or beginning of July 2016.

Plaintiff also argues that Defendant’s evidence that the academic year ended on June 10, 2016 is a false, self-serving statement because UCLA also has a summer session. (Opposition at p. 12.) But Plaintiff provides no evidence to dispute the fact that the academic year, as opposed to the summer session, ended on June 10, 2016. That the evidence may be self-serving does not make it false, disputed, or inadmissible. (Oiye v. Fox (2012) 211 Cal.App.4th 1036, 1050 [“Modern courts have recognized that all evidence proffered by a party is intended to be self-serving in the sense of supporting the party’s position, and it cannot be discounted on that basis”].)

Plaintiff also points to her declaration filed with her opposition stating, “Between July and January of 2017, I continued to be subjected to acts that included ostracization, frequent unwarranted reprimands, unwarranted written discipline, being stripped of job duties and frequent undermining in front of other employees.” (Watson Decl., ¶ 24.) This statement contradicts her complaint and her own opposition brief, which admits “Ms. Watson testified in deposition that the last discriminatory act occurred in July of 2016.” (Opposition at p. 14.) The conclusory statement in the declaration does not create a disputed fact regarding when the last discriminatory act occurred. (Collins v. Hertz Corp. (2006) 14 Cal.App.4th 64, 79 [statements in declaration contradicting deposition testimony “are insufficient to defeat summary judgment” and are “properly stricken by the trial court”].)

Defendant also argues that even if some alleged conduct occurred within the statutory period, the continuing violations doctrine does not apply to Plaintiff’s discrimination claims. (Motion at p. 6.) Under the continuing violations doctrine, an employer’s allegedly discriminatory acts “is a continuing violation if the employer’s unlawful actions are (1) sufficiently similar in kind—recognizing . . . that similar kinds of unlawful employer conduct, such as acts of harassment or failures to reasonably accommodate disability, may take a number of different forms [citation]; (2) have occurred with reasonable frequency; (3) and have not acquired a degree of permanence.” (Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, 823.) “Permanence,” in this context, “should properly be understood to mean the following: that an employer’s statements and actions make clear to a reasonable employee that any further efforts at informal conciliation to obtain reasonable accommodation or end harassment will be futile.” (Ibid.)

Defendant provides evidence that the actions acquired a degree of permanence by late 2015 or early 2016. Plaintiff testified that in 2015, she knew she was being treated differently because she is African American, and “the treatment continued and increased and got worse for [her.]” (Plaintiff Depo. at pp. 87-88.) Plaintiff testified in 2016, she decided the situation was “hopeless,” and “it was clear that this was not a place where [she] was going to thrive.” (Id. at p. 88; UMF 53.) Specifically between “late 2015 and early 2016,” she “became very clear that [her] only option was to find another role outside of UCLA.” (Id. at pp. 88-89; UMF 53.) This testimony satisfies Defendant’s initial burden of showing that before July 6, 2016 – indeed by early 2016 – it was clear to Plaintiff that any further efforts at informal conciliation to end the discrimination or harassment would be futile.

Plaintiff counters that she “deemed the situation ‘hopeless’ upon reflecting on her meeting with then Associate Vice Chancellor Monroe Gorden” in July 2016, and that that reflection took weeks after the meeting. (Opposition at pp. 15.) She cites to paragraph 22 of her declaration as evidence (Response to UMF 53), but the declaration does not state she reflected for weeks after the meeting. Plaintiff objects to the cited deposition testimony as misstating her testimony (Response to UMF 53), but she does not submit evidence that the deposition transcript is incorrect. In sum, Plaintiff did not submit evidence disputing her deposition testimony that by late 2015 to early 2016, it was clear to her that the situation was hopeless.

Accordingly, summary adjudication of the first four causes of action is granted because those causes of action are time-barred.

B. Seventh Cause of Action – Hostile Work Environment

The seventh cause of action complaint alleges, “This harassment and hostile work environment eventually led to Plaintiffs Flores’ and Hayes’ constructive termination and Ms. Watson [s] resignation.” (Complaint, ¶ 157.) Plaintiff argues that she resigned “due to overwhelming discrimination, harassment and retaliation.” (Response to UMF 30.) As discussed above, the acts of discrimination and harassment took place before early July 2016 and are time-barred. Plaintiff did not provide evidence of discrimination, harassment or retaliation after her meeting with Gordon in July 2016 except being denied a merit increase in 2016. (Watson Decl., ¶ 22.) That statement in her declaration conflicts with her deposition testimony that the last actionable conduct involved the gas card and funding to attend conferences in the 2015-2016 academic year. (UMF 45.)

Assuming the acts alleged in the complaint are not time barred, Defendant argues they are not sufficient to create a hostile work environment as a matter of law. “In order to establish a constructive discharge, an employee must plead and prove, by the usual preponderance of the evidence standard, that the employer either intentionally created or knowingly permitted working conditions that were so intolerable or aggravated at the time of the employee’s resignation that a reasonable employer would realize that a reasonable person in the employee’s position would be compelled to resign.” (Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1251.) “[A]n employee cannot simply ‘quit and sue,’ claiming he or she was constructively discharged. The conditions giving rise to the resignation must be sufficiently extraordinary and egregious to overcome the normal motivation of a competent, diligent, and reasonable employee to remain on the job to earn a livelihood and to serve his or her employer. The proper focus is on whether the resignation was coerced, not whether it was simply one rational option for the employee.” (Id. at p. 1246.)

Denial of promotions, exclusion from meetings, criticisms, or a subjective belief that the workplace is not tolerable or that there is no point in staying do not amount to a constructive discharge. (Cloud v. Casey (1999) 76 Cal.App.4th 895, 903-904.) A plaintiff’s willingness to stay at a job for a long time reporting “to the very person who discriminated against her strongly supports the inference that the employment conditions were not so intolerable that a reasonable person would have to resign.” (Id. at p. 905 [affirming grant of summary judgment on constructive discharge cause of action].)

Plaintiff alleges that in 2009, Sandoval reprimanded her for questioning a funding proposal. (Complaint, ¶ 25.) In January 2011, she was reprimanded for contacting an administrator. (Complaint, ¶ 27.) In 2013, she was denied a raise and understood a comment from Sandoval to be a message that he would not select her for a more senior position. (Complaint, ¶ 29.) In 2014, she was removed from the CRC chair selection process and denied a raise. (Complaint, ¶¶ 30, 32.) She was excluded from presenting at a conference. (Complaint, ¶ 33.) During the 2015-2016 academic year, she was initially denied a gas card and required to make a report to justify receiving funding to attend a conference, a report that no one else needed to make. (Complaint, ¶ 39.)

Defendant submitted evidence that Plaintiff was never demoted. (UMF 28.) After May 2013, she was paid at least as much as others in her position, never had her salary and benefits reduced, and received merit pay increases three out of the four years. (Hernandez Decl., ¶¶ 5-8; UMF 42.) She received positive performance reviews in 2013 and 2014. (Watson Depo. at pp. 420-422; UMF 65.) When she resigned, she started a new position making about 60% more in salary. (UMF 43.) As in Cloud, from 2009 to her resignation in 2017, she continued to work with the supervisor or supervisors who allegedly discriminated against her for years. Defendant satisfied their initial burden.

Plaintiff argues she alleges a sufficient continuous pattern of discriminatory conduct under Valdez v. City of Los Angeles (1991) 231 Cal.App.3d 1043 because Sandoval referred to African-Americans with a derogatory word, and Plaintiff experienced “denial of a regular pay increase, denial of a bonus, frequent unwarranted reprimands, unwarranted written discipline, being stripped of job duties, and frequent undermining in front of other employees. (Opposition at p. 16.) As evidence of this, Plaintiff cites a conclusory statement in her declaration and does not identify when those events occurred. (Watson Decl., ¶ 24.) The declaration does not state when Sandoval made derogatory comments about African Americans, and the complaint does not allege any cause of action based on those comments.

The conduct in 2009, 2011, and 2013 are remote in time. The passage of time “strongly suggests” Plaintiff did not consider that conduct to be unbearable. (Turner, supra, 7 Cal.4th at p. 1255 [conduct 4-5 years before resignation was “remote”].) Even the later conduct – the 2014 removal of Plaintiff from the chair selection process, 2014 denial of a pay increase, 2014 removal from a presentation, 2015 denial of a pay increase, and 2015 denial of funding to attend a conference and the gas card – occurred two to three years before Plaintiff resigned in 2017, creating the inference they were not intolerable.

The types of actions alleged –denials of positions and pay increases – are not the types of conditions so intolerable that a reasonable person would have to resign. A reduction in pay, let alone a denial of a pay increase, does not alone create an intolerable condition. (Turner, supra, 7 Cal.4th at p. 1247 [“a poor performance rating or a demotion, even when accompanied by reduction in pay, does not by itself trigger a constructive discharge”].) The removal of an employee from a responsibility, such as the chair selection process or serving as a presenter, is part of managing the workplace. (Id. at p. 1255 [“‘In order to properly manage its business, every employer must on occasion review, criticize, demote, transfer, and discipline employees’”].) Plaintiff obtained a much better paying position, which supports the inference that she resigned because she found better employment. As in Turner, Plaintiffs’ charges of employer misconduct considered together do not show a continuous pattern of aggravating conditions. (Ibid.) Therefore summary adjudication on this cause of action is granted.

C. Eighth Cause of Action – Retaliation

To establish a prima facie case of ;retaliation ;under FEHA, a plaintiff must show “(1) he or she engaged in a ‘protected activity,’ (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer’s action. [Citations.] Once an employee establishes a prima facie case, the employer is required to offer a legitimate, nonretaliatory reason for the adverse employment action. ; [Citation.] ;If the employer produces a legitimate reason for the adverse employment action, the presumption of ;retaliation ;‘‘‘drops out of the picture,’’’ and the burden shifts back to the employee to prove intentional ;retaliation. [Citation.]” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.)

Defendant argues that Plaintiff cannot show a causal link between the three verbal complaints she made and any adverse employment action. (Motion at p. 17.) Watson made complaints in January 2011, in a 2014 meeting with Vice-Chancellor Janina Montrero, and in her 2016 meeting with Gordon. (Motion at p. 17; UMF 86, 87.) But, Defendant argue, the alleged retaliation after the 2014 meeting is time-barred, and Plaintiff did not allege or submit evidence of actionable conduct after the 2016 meeting. (Motion at pp. 17-18. Plaintiff agrees she complained in 2014 and in her 2016 meeting with Gordon. (Opposition at p. 21.) She argues that after she complained, “the harassing and discriminatory conduct intensified, “ and that specifically, “she was improperly denied multiple merit increases and she was given a low performance review.” (Opposition at p. 21.)

The harassing and discriminatory conduct after the 2014 meeting is time-barred. For example, Plaintiff states in her declaration that she was denied a merit increase in 2015 in retaliation for the 2014 complaint. (Watson Decl., ¶ 21.) But that 2015 event is outside the statute of limitations. Plaintiff also states in her declaration that after the 2016 meeting with Gordon, her supervisors “denied [her] a merit increase in 2016.” (Watson Decl., ¶ 22.) But, as discussed above, Plaintiff testified that the last event of discrimination or harassment was before or at the time of the 2016 meeting with Gordon. Her declaration cannot create a disputed fact by contradicting her deposition testimony.

(Defendant also argues that Watson did not make a retaliation claim in her DFEH complaint, but Defendant did not file a copy of that complaint with their evidence.)

In sum, for the reasons discussed above, this cause of action is time-barred, and therefore summary adjudication is granted.

D. Fifth Cause of Action – Failure to Prevent

Defendant moved for summary adjudication of the fifth cause of action on the ground that the underlying claims for discrimination, harassment and retaliation fail. (Notice of Motion at p. 5.) Because Plaintiff cannot establish actionable discrimination, harassment, or retaliation as discussed above, the fifth cause of action must fail. Summary adjudication is granted on the fifth cause of action.

CONCLUSION

The motion for summary judgment, or in the alternative summary adjudication, is GRANTED. Defendant is to file a proposed judgment within five days.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. Parties intending to appear are STRONGLY encouraged to appear remotely.



Case Number: ****7050    Hearing Date: January 21, 2021    Dept: 48

[TENATIVE] ORDER RE MOTIONS FOR PROTECTIVE ORDER

On December 9, 2020, Defendants The Regents of the University of California, Antonio Sandoval, and Thuy Huynh filed a motion for a protective order regarding the deposition of Dion Raymond, set for hearing on January 21, 2021. On December 14, 2020, Defendants filed a motion for a protective order regarding the deposition of Monroe Gordon, set for hearing on January 22, 2021. Both motions will be heard on January 21, 2021.

Plaintiffs did not file an opposition to the motion regarding the Raymond deposition. Instead, on January 13, 2021, the parties filed a joint report on the status of discovery stating that the Raymond deposition was going forward that day. For some reason, Defendants did not take the motion for a protective order off calendar. Therefore, the motion for a protective order re Raymond is MOOT and off calendar.

Defendants seek a protective order prohibiting the deposition of Gorden because he is a high-ranking executive officer with “no first-hand or superior knowledge of any events in this matter.” (Motion at p. 2.) Plaintiff Mia Watson argues Monroe has first-hand knowledge because she “made a verbal protected complaint directly to Mr. Gorden in a room where no one else was present.” (Opposition at p. 2.) Plaintiff Watson argues Defendant The Regents premise its summary judgment motion on the assertion that there is no evidence Watson engaged in protective activity. (Opposition at p. 4.) In reply Defendants argue Gorden has no specific recollection of the meeting where Watson allegedly complained and that The Regents’ summary judgment motion concedes for the purpose of the motion that Watson engaged in protected activity. (Reply at p. 2.)

“[W]hen a plaintiff seeks to depose a corporate president or other official at the highest level of corporate management, and that official moves for a protective order to prohibit the deposition, the trial court should first determine whether the plaintiff has shown good cause that the official has unique or superior knowledge of discoverable information. If not, as will presumably often be the case in the instance of a large national or international corporation, the trial court should issue the protective order and first require the plaintiff to obtain the necessary discovery through less-intrusive means.” (Liberty Mutual Ins. Co. v. Superior Court (1992) 10 Cal.App.4th 1282, 1289.)

Plaintiff Watson has shown Gorden has unique or superior knowledge pertaining to material issues in dispute. First, Defendant put the conversation at issue in its summary judgment motion arguing, “Watson’s [sic] cannot establish a prima facie case of retaliation for at least two reasons. . . . Second, there is no evidence that Watson engaged in ‘protected activity’ for purposes of retaliation under the FEHA. . . . there is no allegation that she ever reported or otherwise opposed any unlawful practice prohibited by FEHA.” (MSJ at p. 17.) While, Defendant also makes the argument that there was no causal connect even if the conversation with Gorden can be considered protected activity, Defendant first makes the argument that the Gorden conversation was not protected activity. Therefore, the conversation is at issue in Defendant’s summary judgment motion.

Plaintiff Watson has also shown Gorden has information about the issue of protected activity. Watson testified she told him about “the racial environment, and the fact that it was having such an impact in my stress level and my physical health . . . that it was no longer tolerable for me.” She testified that she complained to him and asked what she should do to avoid retaliation. (Opposition at p. 4.) Neither Watson nor Defendant attached the Watson deposition transcript. Therefore, the Court relies on the excerpt in Watson’s opposition brief. Watson bases her claims at least in part on this conversation.

Defendant argues Watson can pursue other means to obtain evidence about the conversation, such as deposing other people. But only Watson and Gorden participated in the conversation, and Defendant has not shown any other people have knowledge of the conversation. Defendant argues Plaintiff should first propound interrogatories, citing Liberty. But the court in Liberty required the propounding party to first use other means such as interrogatories when the plaintiff had not shown good cause that the official has unique or superior knowledge of discoverable information. (Liberty, supra, 10 Cal.App.4th at p. 1289.) Here, there is evidence the official has unique or superior knowledge because he was a participant in the conversation at issue. Gorden’s declaration stating that he does not remember the conversation, which he does not deny took place, is not a sufficient reason to prohibit the deposition or require interrogatories first. (Id. at p. 1291.)

Therefore, the Court GRANTS the protective order in part and DENIES it in part. Watson may depose Gorden for 1.5 hours, limited to the alleged conversation between Watson and Groden and any action Gorden took as a result of the conversation.

Plaintiff’s request for sanctions is denied. The parties did not provide evidence of their meeting and conferring. Therefore, it is unclear whether Plaintiff offered reasonable limits to the deposition such as limiting questions to the conversation at issue.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. Parties intending to appear are STRONGLY encouraged to appear remotely.



Case Number: ****7050    Hearing Date: August 25, 2020    Dept: 48

[TENTATIVE] ORDER RE: DEFENDANT’S MOTION FOR SANCTIONS AGAINST PLAINTIFFS AND COUNSEL

On September 27, 2017, Plaintiffs Sherrae Hayes, Kalina Flores, and Mia Watson (collectively, “Plaintiffs”) filed this action against Defendant Regents of the University of California (“Defendant”).

On June 5, 2020, Defendant’s counsel emailed a letter and notice of a motion for sanctions pursuant to Code of Civil Procedure section 128.7 to Plaintiffs’ counsel. (Motion, Ex. D; Opposition at p. 3.) On June 29, 2020 at 10:08 p.m., Defendant filed this motion for sanctions against Plaintiffs and their counsel, seeking dismissal of Plaintiffs’ equal pay cause of action and attorney fees of $12,750.00. (Mintz Decl. ¶ 4.) On June 30, 2020 at 12:50 a.m., Plaintiffs informed Defendant that they would dismiss the equal pay claims. (Ibid.) Plaintiffs attempted to file a dismissal on June 30, 2020, but it was rejected for clerical reasons. (Gibson Decl. ¶ 4; see Proof of Service by Mail [filed June 30, 2020].) On July 8, 2020, Plaintiffs successfully filed a dismissal with prejudice of the equal pay cause of action, and dismissal was entered on July 13, 2020.

The Court grants Defendants’ request for judicial notice of statutes in effect when the complaint was filed.

A court may award sanctions upon a finding that a pleading was presented primarily for an improper purpose, the claims or defenses are frivolous, or the allegations or denials lack evidentiary support. (Code Civ. Proc., ; 128.7(b)-(d).) A party must service notice of a motion for sanctions to the opposing party at least 21 days before filing the motion with the court. (Code Civ. Proc., ; (c)(1).) Plaintiffs contend that Defendant did not wait until the end of the 21-day safe harbor period before filing its motion. Because Defendant emailed the notice of motion on June 5, Plaintiffs contend the deadline on the notice period was extended by two court days to July 1, 2020. (See Code Civ. Proc., ; 1010.6, subd. (a)(4)(B).)

The case law requires strict compliance with the 21-day safe harbor period. “What is essential is that the party who filed the offending document has the benefit of the ‘full safe harbor period within which to dismiss the action.’ [Citation].” (Li v. Majestic Industry Hills LLC (2009) 177 Cal.App.4th 585, 592.) The addition days added when service is anything other than personal exist to ensure a party has the full notice period. For example, if Defendant had served the notice of motion by mail, five additional days would have been added because Plaintiffs would not have received the notice for at least a couple days. The legislature decided that, even though an email usually (but not always) appears in the recipient’s inbox shortly after it is sent, two court days are added to notice periods when service is by email. (Code Civ. Proc., ; 1010.6, subd. (a)(4)(B).) The statute states, “Any period of notice . . . shall be extended . . . by two court days . . . .” except for a few specified types of notice. (Ibid.) The fact that the statute refers to “any period of notice” and does not include the section 128.7 notice period in the list of excepted notices, means that the 21-day notice period is included in the reference to “any period of notice.” Therefore, pursuant to section 1010.6, two court days were added, and the 21-day notice period ended on July 1, 2020, making the filing of the motion on June 29, 2020 too early.

On the other hand, Plaintiffs did not explain why they waited until the last minute to dismiss the claim. Accordingly, Defendant’s and Plaintiffs’ requests for sanctions are DENIED.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. Parties intending to appear are STRONGLY encouraged to appear remotely.



Case Number: ****7050    Hearing Date: July 17, 2020    Dept: 48

[TENTATIVE] ORDER RE: DEFENDANT’S MOTION TO SEVER PLAINTIFFS’ CLAIMS; MOTION TO BE RELIEVED FROM STIPULATION; MOTION TO COMPEL FURTHER DOCUMENTS

MOTION TO SEVER

On September 27, 2017, Plaintiffs Sherrae Hayes, Ph.D. (“Hayes”), Kalina Flores (“Flores”), and Mia Watson filed this action against Defendants Regents of the University of California (“Defendant”), Antonio Sandoval, and Thuy Huynh arising from Plaintiffs’ employment with Regents. On June 20, 2018, Plaintiffs dismissed Antonio Sandoval and Thuy Huynh. On March 17, 2020, Defendant moved to sever Plaintiffs’ claims.

A court may order a separate trial of any cause of action or of any separate issue in furtherance of convenience, to avoid prejudice, or when separate trials will be conducive to expedition and economy. (Code Civ. Proc., ; 1048, subd. (b).) Whether there will be a severance and separate trials on issues in a single action is a matter within the discretion of the trial court. (Shade Foods, Inc. v. Innovative Products Sales & Marketing, Inc. (2000) 78 Cal.App.4th 847, 911-912.)

Defendant contends that Plaintiffs’ claims have been impermissibly joined because they do not arise from the same events, transactions, or occurrences. (Motion at p. 9.) According to Defendant, the allegations lack sufficient commonality for permissive joinder of Plaintiffs under Code of Civil Procedure section 378. (Ibid.) Code of Civil Procedure, section 430.10, subdivision (d) allows a party to demur to a pleading on the grounds that there is a defect or misjoinder of parties. (Code Civ. Proc., ; 430.10, subd. (d).) Section 430.80, subdivision (a) provides that a defendant who fails to object to a complaint by demurrer or answer waives that objection “unless it is an objection that the court has no jurisdiction of the subject of the cause of action alleged in the pleading or an objection that the pleading does not state facts sufficient to constitute a cause of action.” (Code Civ. Proc., ; 430.80, subd. (a).) Defendant did not raise the issue of misjoinder by demurrer or as an affirmative defense to the complaint. Accordingly, Defendant has waived the argument of improper joinder and cannot move to sever the individual Plaintiffs’ claims into separate actions on this basis.

Defendant also contends that separate trials will prevent confusion of issues, and resolution of Flores’s causes of action first will simplify the case. (Motion at pp. 10-12.) Plaintiffs’ allegations cover three separate time periods, totaling over 11 years, and each Plaintiff alleges different events at different times. (Id. at pp. 10-11.) Flores’s allegations may be time-barred, and adjudication of the statute of limitations issue could affect the other Plaintiffs’ cases, such as by limiting the scope of what testimony would be timely and relevant. (Id. at p. 11-12.) Additionally, both Flores and Hayes completed their one-year terms and chose not to re-apply. Defendant argues that a legal determination in the Flores case about whether a plaintiff can have a wrongful termination claim when she chooses not to reapply for a position, will streamline the Hayes case. (Id. at p. 12.)

Defendant has moved for summary judgment or summary adjudication of all of Plaintiffs’ causes of action, scheduled to be heard on November 20, 2020. Defendant specifically seeks summary adjudication of whether Flores’s claims are time-barred and whether she suffered an adverse employment action when she chose not to reapply for her position. Defendant likewise seeks summary adjudication of Hayes claims because she chose not to reapply. A request to sever Plaintiffs’ causes of action on this basis is therefore premature, as some or all of the issues that Defendant raises here may be resolved earlier than the June 14, 2021 trial.

Finally, Defendant contends that there is little overlap of proof among Plaintiffs’ claims, so evidence that is admitted for one claim but not others may prejudice the jury as to all claims. (Motion at pp. 12-13.) A single trial would thus prejudice Defendant by creating a cumulative effect from all of Plaintiffs’ allegations and evidence, giving the jury a false impression of liability. (Id. at pp. 13-14.) However, Plaintiffs contend that they will rely on the same witnesses, and they might be severely prejudiced if their eight witnesses are not available to testify at all three trials. (Opposition at pp 5, 7-8.) Instead, Plaintiffs suggest a trial structured in phases by issue. (Id. at p. 8.) For the reasons discussed above, the Court also finds this argument to be premature at this time.

Accordingly, the motion to sever is DENIED WITHOUT PREJUDICE to being raised in pretrial motions.

MOTION FOR RELIEF FROM STIPULATION

On December 11, 2018, Plaintiff Sherrae Hayes and Defendant signed a stipulation and proposed order, which the Court signed on December 14, 2018. Plaintiff stipulated that she suffered, at most, “garden variety” emotional distress, did not suffer ongoing mental or emotional distress requiring treatment by a mental health professional, would not make a claim for mental and emotional distress over and above that usually associated with the injuries claimed, and would not offer expert testimony regarding alleged mental and emotional distress or physical injury at trial. In reliance on Plaintiff’s stipulation, Defendant stipulated that it would not move to compel a medical examination of Plaintiff. On June 11, 2020, Plaintiff moved for relief from the stipulation.

“A stipulation is ‘An agreement between opposing counsel ... ordinarily entered into for the purpose of avoiding delay, trouble, or expense in the conduct of the action,’ (Ballentine, Law Dict. (1930) p. 1235, col. 2) and serves ‘to obviate need for proof or to narrow range of litigable issues’ (Black's Law Dict. (6th ed.1990) p. 1415, col. 1) in a legal proceeding.” (County of Sacramento v. Workers’ Comp. Appeal Bd. (2000) 77 Cal.App.4th 1114, 1118.) Stipulations made by counsel that affect tactics or procedures are binding on the client. (Blanton v. Womancare, Inc. (1985) 38 Cal.3d 396, 404.) But an attorney is not authorized to impair the client’s substantial rights and must be “specially authorized to settle and compromise a claim.” (Ibid.)

A court may, in its discretion, set aside a stipulation due to mistake of fact or law, when there has been a change in the underlying conditions that could not have been anticipated, or where special circumstances exist rendering it unjust to enforce the stipulation. (Gonzales v. Pacific Greyhound Lines (1950) 34 Cal.2d 749, 755; County of Sacramento, supra, 77 Cal.App.4th at p. 1121; Abadjian v. Superior Court (1985) 168 Cal.App.3d 363, 371; see also 3 Cal. Jur. 3d Agreed Case and Stipulations ; 43 (May 2020 Update).) A poor outcome is not a reason to set aside a stipulation by counsel, even if the stipulation impairs a party’s rights. (Mileikowsky v. Tenet Healthsystem (2005) 128 Cal.App.4th 262, 279.)

Plaintiff contends that mistake makes it unjust to enforce the stipulation. (Motion at p. 7.) According to Plaintiff, traveling to Los Angeles for a deposition and undergoing a medical exam would have caused hardships and stress during the end of her high-risk pregnancy. (Hayes Decl. ¶ 3.) She decided that it was in the best interests of her health and her child’s health to not undergo a medical exam before giving birth. (Ibid.) Defendant’s counsel declined to continue the depositions and exam until after Plaintiff’s delivery in February 2019, but on November 13, 2018, defense counsel proposed the stipulation at issue. (Neal Decl. ¶¶ 7-8 & Ex. Q.) Plaintiff’s counsel entered into the stipulation based on a mistaken belief of how Plaintiff wanted to proceed with her case. (Motion at p. 8.) Plaintiff’s counsel’s declaration states, “I misinterpreted Plaintiff’s willingness to enter into the Stipulation at the cost of foregoing damages for severe emotional distress.” (Neal Decl., ¶ 9.) Plaintiff’s declaration states, “I decided that in the interest of my health and that of my child, I could not present myself for an IME prior to giving birth.” (Hayes Decl., ¶ 3.)

Plaintiff has not shown entitlement to relief based on mistake. The evidence presented shows second thoughts rather than a mistake. Plaintiff’s counsel and Plaintiff do not state that counsel failed to discuss the stipulation with Plaintiff, that Plaintiff did not understand the stipulation, that Plaintiff rejected the stipulation, or that Plaintiff did not authorize counsel to sign the stipulation. Defense counsel proposed the stipulation on November 13, 2018, but counsel did not sign the stipulation until December 11, 2018, giving Plaintiff and her counsel plenty of time to discuss it. Rather, Plaintiff’s and counsel’s statements in their declarations suggest that Plaintiff was willing to enter into the stipulation because she wanted to avoid the exam before giving birth. Plaintiff’s counsel does not explain why, if Plaintiff in fact did not want to enter the stipulation, Plaintiff did not file a motion for a protective order to postpone the medical exam until after Plaintiff had her baby. On October 19, 2018, the Court continued the trial date to August 26, 2019 and continued all related dates. Thus the trial date did not prevent an order to postpone the medical exam to a date in 2019.

Plaintiff also contends that circumstances have dramatically changed since the parties entered into the stipulation. (Motion at p. 9.) At the time of the stipulation, Plaintiff wanted to avoid undue stress during the end of her high-risk pregnancy, and she believed that an exam would be too invasive and risky. (Ibid.) The exam could not be continued because Defendant refused to do so. (Ibid.) Since then, Plaintiff has given birth and is now available to undergo an exam, and trial has been continued. (Ibid.) Counsel has also learned that Plaintiff did not want to forego damages for extreme emotional distress. (Ibid.)

The Court finds that there was not an unanticipated change in circumstances that justifies relief. When the parties’ counsel signed the stipulation in December 2018, it was anticipated that Plaintiff would give birth in early 2019, after which she would not need to worry about undue stress during her pregnancy. When counsel entered into the stipulation, trial had already been continued to August 26, 2019, with statutory deadlines continued based on the new trial date. Therefore, the circumstances already afforded sufficient time to conduct an exam after Plaintiff had her baby.

Finally, Plaintiff contends that Defendant will not be prejudiced because Defendant already learned about Plaintiff’s extreme emotional distress through written discovery and depositions, and Defendant has not conducted exams of the other two plaintiffs. (Motion at p. 10.) But given the current pandemic, arranging and conducting an exam would be more difficult than if it had been conducted in 2019.

Accordingly, the motion to be relieved from the stipulation is DENIED.

MOTION TO COMPEL FURTHER DOCUMENTS

On April 3, 2020, Plaintiffs Sherrae Hayes, Kalina Flores, and Mia Watson filed a motion to compel the production of further documents from Defendant Regents of the University of California. At the informal discovery conference held on July 10, 2020, the parties confirmed they had resolved their disputes except for Request Nos. 55-59, 63-67, and 100-101. Request Nos. 55-59 and 63-67 seek interview notes and interview summaries from the investigations of the complaints filed by Flores and Hayes, writings transmitted to the SD&C during the investigations, communications at SD&C referencing the investigations, and previous versions of the investigation reports. Request Nos. 100 and 101 seek communications between Jeannette Valdivia (the lead investigator) and Chandra Bhatnager (the director of the Equal Employment Opportunity Compliance office conducting the investigation) relating to the reports. Apparently, SD&C is a reference to the Equal Employment Opportunity Compliance office.

Plaintiffs contend the requests ask for relevant information that could show racial and gender animus by Plaintiffs’ supervisors, no third party privacy rights outweigh Plaintiff’s rights to the discovery, and no privilege attaches to the documents. Plaintiff contends the office conducting the investigation is a neutral, independent, investigative entity, and therefore Defendant cannot claim attorney-client privilege or work product protection for the documents created by or sent to members of that office.

Defendant argues the information requested is not relevant because none of the discovery would aid Plaintiffs in meeting the elements of a prima facie case of discrimination or retaliation. Defendant seems to be arguing that Plaintiffs are not entitled to the discovery until they first make a prima facie showing of discrimination or retaliation, but that is not how discovery generally works. This case is not being litigated in phases. The documents sought could lead to the discovery of admissible evidence on Defendant’s discriminatory intent or motive to show that Defendant’s reasons for adverse actions were pretextual. For example, if the interview notes and summaries or documents sent to the investigative office showed that Plaintiff’s supervisors made derogatory comments about them based on race or gender, that information could potentially be relevant in showing pretext. Likewise, a draft of the report including such comments, but which were removed from the final report, could potentially show pretext.

Defendant next argues the documents can be obtained through subpoenas, but it is not clear who else has the documents. Regardless, that is not a basis to refuse production.

Defendant’s objections referred to third party privacy rights protected under the California Constitution and FERPA, but does not identify which third parties are implicated. In the separate statement, Defendant mentions privacy rights and states that making an investigator’s notes discoverable will inhibit investigators from engaging in a full and fair investigation. This argument suggests that an investigator has a privacy right in his or her work product, but Defendant cites no legal authority. One could argue barring discovery into the investigation process could make it less full and fair, while allowing discovery creates an incentive for the investigator to do a full and fair investigation because the investigator knows that the work product may be subject to scrutiny later.

Defendant objects that the information is protected as official information under Evidence Code section 1040, subdivision (b). That section applies if disclosure is forbidden by a statute, which is not shown here, or if the disclosure is against the public interest because there is a necessity for preserving the confidentiality that outweighs the necessity for disclosure in the interest of justice. The only interest stated is that investigators will do a fairer investigation if their work product is kept confidential. But as stated above, that conclusion is questionable. Because it is equally possible that disclosure of the investigation work product to the person who is a subject of the investigation may make the investigation more fair, on balance, the necessity for preserving confidentiality does not outweigh the interest in producing the information under a protective order in this case.

Defendant contends the documents are attorney client privileged and attorney work product because the documents were “generated by an attorney’s investigators, researchers, and other employees and agents.” (Opp. at p. 14.) Defendant states the investigator is an attorney, and she prepared the report in anticipation of litigation.

“A party that seeks to protect communications from disclosure based upon the attorney-client privilege must establish the preliminary facts necessary to support its exercise—i.e., a communication made in the course of an attorney-client relationship. [Citation.] ‘Once that party establishes facts necessary to support a prima facie claim of privilege, the communication is presumed to have been made in confidence and the opponent of the privilege has the burden of proof to establish the communication was not confidential or that the privilege does not for other reasons apply.’ [Citation.]” (City of Petaluma v. Superior Court (2016) 248 Cal.App.4th 1023, 1032.) “In assessing whether a communication is privileged, the initial focus of the inquiry is on the “dominant purpose of the relationship” between attorney and client and not on the purpose served by the individual communication.” (Ibid.) When a party presents evidence that an attorney “was retained to use her legal expertise to conduct a factual investigation that would, in turn, be the basis for [the in-house attorney] to provide legal advice [to the party],” the party establishes a prima facie claim of privilege. (Id. at p. 1035.)

A privilege log can satisfy this burden of establishing preliminary facts. (Bank of America, N.A. v. Superior Court (2013) 212 Cal.App.4th 1076, 1100.) Defendant did not produce a privilege log and has not establish the preliminary facts necessary to support its privilege objections. For example, there is no declaration from Valdivia stating that she is an attorney and explaining her role in the investigations. There is no declaration from Valdivia or Bhatnager explaining the work their office does, the purpose of the investigations, or the relationship of the Equal Employment Opportunity Compliance office to the Regents. There are no declarations from the interviewers explaining a basis for a determination that their interview notes contain attorney impressions or are otherwise work product. The only evidence is a statement by outside counsel that Valdivia is “an attorney for Regents,” without explanation of the foundation for that statement. (Mintz Decl., ¶ 16.) That statement is insufficient to establish the preliminary facts that the requested documents were made in the course of an attorney-client relationship or are attorney work product.

The motion to compel is GRANTED IN PART. Defendant is to provide a privilege log of the documents withheld as attorney-client privilege or work product within the next 30 days. (City of Petaluma, supra, 248 Cal.App.4th at p. 1037 [remanding case for determination of privilege of investigative materials, such as interview notes, because no privilege log or other itemization of withheld documents had been provided].)

The Court does not award fees as there was substantial justification for bringing and opposing the motion.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. Parties intending to appear are STRONGLY encouraged to appear remotely.



Case Number: ****7050    Hearing Date: January 07, 2020    Dept: 48

MOTION TO COMPEL DEPOSITIONS AND REQUEST FOR SANCTIONS

MOVING PARTY: Plaintiffs Sherrae Hayes, Ph.D, Kalina Flores and Mia Watson

RESPONDING PARTY(S) Defendant The Regents of the University of California

PROOF OF SERVICE:

ANALYSIS

Motion to Compel Deposition of Defendant Regents’ PMQ

Counsel has not presented a meet and confer declaration which complies with CCP ; 2016.040, which states: “A meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” (Bold emphasis and underlining added.) After Defendant served its objection on October 11, 2019 (Gibson Decl., ¶ 6), Plaintiffs’ counsel only sent an email on September 24, 2019 which generally asserts that Plaintiffs are entitled to take the PMQ deposition for all areas Plaintiffs identified. Gibson Decl, ¶ 7; Exh. E. Although Gibson states that she conferred with Defendants’ counsel on November 26, 2019, December 6, 2019 and December 10, 2019 (Gibson Decl., ¶¶ 8 – 10; Exhs. F & G), there is no indication that she attempted to informally resolve each issue presented by deposition topics 16-35.

Accordingly, the motion to compel the PMQ deposition and request for sanctions is DENIED.

Motion to Compel Deposition of Jennette Valdivia

This should have been filed as a separate motion, with a separate filing fee paid.

Moreover, in the separate statement, Plaintiffs have not made the fact specific showing of good cause for the 17 categories of documents sought to be produced by Valdivia.

The motion to compel the deposition of Jennette Valdivia and request for sanctions is DENIED.



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