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This case was last updated from Los Angeles County Superior Courts on 06/14/2019 at 10:37:48 (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 and ELIZABETH ALLEN WHITE. 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

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

CAROLYN B. KUHL

ELIZABETH ALLEN WHITE

 

Party Details

Plaintiffs and Petitioners

FLORES KALINA

WATSON MIA

HAYES SHERRAE PHD

HAYES SHERRAE PH.D.

Defendants and Respondents

SANDOVAL ANTONIO

HUYNH THUY

DOES 1 TO 100

REGENTS OF THE UNIVERSITY OF CALIFORNIA

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

CARR PETER LAURENCE IV ESQ

CARR PETER L. IV

Defendant and Respondent Attorneys

NGUYEN HIEN THI TUAN

GABRIELSON ALEXIS M.

FITZGERALD BARBARA A. ESQ

NGUYEN HIEN

 

Court Documents

Proof of Service

2/27/2018: Proof of Service

Unknown

2/27/2018: Unknown

CASE MANAGEMENT ORDER

3/6/2018: CASE MANAGEMENT ORDER

Minute Order

3/6/2018: Minute Order

NOTICE OF CHANGE OF ADDRESS OR OTHER CONTACT INFORMATION

3/7/2018: NOTICE OF CHANGE OF ADDRESS OR OTHER CONTACT INFORMATION

REQUEST FOR DISMISSAL

6/20/2018: REQUEST FOR DISMISSAL

STIPULATION AND PROTECTIVE ORDER

9/6/2018: STIPULATION AND PROTECTIVE ORDER

Order

10/19/2018: Order

Ex Parte Application

10/19/2018: Ex Parte Application

Notice of Ruling

11/13/2018: Notice of Ruling

Stipulation and Order

12/14/2018: Stipulation and Order

Notice

2/27/2019: Notice

Order

3/1/2019: Order

Notice of Ruling

3/1/2019: Notice of Ruling

Request for Refund / Order

3/21/2019: Request for Refund / Order

ANSWER OF DEFENDANT THE REGENTS OF THE UNIVERSITY OF CALIFORNIA TO PLAINTIFFS' COMPLAINT

12/12/2017: ANSWER OF DEFENDANT THE REGENTS OF THE UNIVERSITY OF CALIFORNIA TO PLAINTIFFS' COMPLAINT

SUMMONS

10/12/2017: SUMMONS

COMPLAINT FOR DAMAGES 1. DISCRIMINATION BASED ON RACE ;ETC

9/27/2017: COMPLAINT FOR DAMAGES 1. DISCRIMINATION BASED ON RACE ;ETC

15 More Documents Available

 

Docket Entries

  • 06/10/2019
  • at 08:30 AM in Department 48, Elizabeth Allen White, Presiding; Hearing on Motion for Summary Judgment - Not Held - Taken Off Calendar by Party

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  • 06/03/2019
  • at 08:30 AM in Department 48, Elizabeth Allen White, Presiding; Hearing on Motion for Summary Judgment - Not Held - Taken Off Calendar by Party

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  • 04/15/2019
  • at 09:30 AM in Department 48, Elizabeth Allen White, Presiding; Jury Trial - Not Held - Continued - Party's Motion

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  • 04/10/2019
  • at 08:31 AM in Department 48, Elizabeth Allen White, Presiding; Final Status Conference - Not Held - Continued - Party's Motion

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  • 03/21/2019
  • Request for Refund / Order; Filed by Regents of the University of California (Defendant)

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  • 03/01/2019
  • at 08:30 AM in Department 48, Elizabeth Allen White, Presiding; Hearing on 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 Support Thereof) - Held

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  • 03/01/2019
  • Minute Order ( (Hearing on Ex Parte Application The Parties' Joint Ex Parte A...)); Filed by Clerk

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  • 03/01/2019
  • Granting The Parties' Joint Ex Parte Application To Continue Trial And All Related Dates

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  • 03/01/2019
  • Notice of Ruling (GRANTING THE PARTIES? JOINT EX PARTE APPLICATION TO CONTINUE TRIAL AND ALL RELATED DATES); Filed by Regents of the University of California (Defendant)

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  • 02/27/2019
  • Notice ( of Errata Re The Partie's Joint Ex Parte Application to Continue Trial and All Related Dates; Memorandum of Points and Authorities; Declaration of Lisa M. Rodriguez in Support Thereof); Filed by Regents of the University of California (Defendant)

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

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

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

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  • 10/17/2017
  • Minute Order

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

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  • 10/12/2017
  • SUMMONS

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

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

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

    Read MoreRead Less
  • 02/16/2016
  • Case Management Statement; Filed by Regents of the University of California (Defendant)

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Tentative Rulings

Case Number: BC677050    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: BC677050    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: BC677050    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: BC677050    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: BC677050    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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