Workers' Compensation Board Of The State Of New York V. Shivem Restaurant Corp

Case Number: 20STCV16798 Hearing Date: July 9, 2024 Dept: 76 Plaintiff alleges that after he returned from medical leave after an industrial injury, Defendant stripped his peace officer status and demoted Plaintiff to a low-level Intermediate Clerk position with lower pay and reduced benefits. Plaintiff remains employed to date with Defendant, in the demoted position. Plaintiff Kim Pham moves to consolidate this action with 23STCV01787 for all purposes or, in the alternative, at the time of trial. TENTATIVE RULING Plaintiff Kim Phams motion to consolidate is CONTINUED to September 20, 2024 at 8:30 a.m. ANALYSIS Motion To Consolidate Discussion Plaintiff Kim Pham moves to consolidate this action with 23STCV01787 for all purposes or, in the alternative, at the time of trial. Plaintiff represents the following as to the cases: (1) Case No. 20STCV16798 Kim Pham V. County Of Los Angeles Probation Department; Los Angeles County Probation Department; Toyea Sims, Cynthia Milauto; (2) Case No. 23STCV0178 Kim Pham V. County Of Los Angeles Probation Department; Los Angeles County Probation Department; Toyea Sims, Cynthia Milauto. Plaintiff KIM PHAM has made an appearance in both actions and whose counsel of record in this matter is Kristen B. Brown, Esq., Kristen Brown Law Firm. Defendant(s) COUNTY OF LOS ANGELES PROBATION DEPARTMENT; LOS ANGELES COUNTY PROBATION DEPARTMENT have made appearances in both actions and represented in both actions by Hausman & Sosa, LLP. TOYEA SIMS has answered in Case No. 20STCV16798 and represented by Hausman & Sosa, LLP. TOYEA SIMS has been served in Case No. 23STCV0178 with a responsive pleading due on or about July 3, 2024. CYNTHIA MALUTO has been served in both cases Case No. 20STCV16798 and Case No. 23STCV0178 with responsive pleadings due on or about July 3, 2024. This motion will be made pursuant to Code Civ. Proc. § 1048(a) on the grounds that the actions involve common questions of law or fact and are pending before this Court and the cases arise out of the same transaction or incident. Plaintiff argues that the same witnesses will likely testify and the same evidence will be presented in both actions, and consolidated discovery and motions will avoid unnecessary costs and delays and will serve the interests of economy and convenience. Plaintiff argues that consolidation will avoid prejudice to Defendant of inconsistent adjudications by the trier of fact on the same issues. Regarding consolidation, Civ. Proc. Code, § 1048(a) provides: (a) When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay. (Civ. Proc. Code, § 1048(a).) Whether separate actions shall be consolidated for trial is a matter within the discretion of the trial court and its decision will not be disturbed on appeal absent a clear showing of abuse of discretion. (Citation omitted.) . . . A consolidation of actions does not affect the rights of the parties. The purpose of consolidation is merely to promote trial convenience and economy by avoiding duplication of procedure, particularly in the proof of issues common to both actions. (Citation omitted.) ( Estate of Baker (1982) 131 Cal.App.3d 471, 485 [bold emphasis added].) Here, 20STCV16798 is set to go to trial on October 14, 2024, while 23STCV01787 is set to go to trial on April 14, 2025. Defendants have a motion for summary judgment or, in the alternative, summary adjudication set to be heard on September 12, 2024. Per Defendants request, the Court will continue this motion to consolidate until after the hearing on the motion for summary judgment, which may dispose of this case in part or entirely, which may affect the consolidation analysis. The hearing on the motion to consolidate is CONTINUED to September 20, 2024 at 8:30 a.m.

20CV-02838 Michael Urbie-Elecciri v. Joseph Henry, et al. Motion for Approval of PAGA Settlement While the Declaration of George B. Singer filed in Case 20CV-02838 on March 29, 2024, stated that “Plaintiff has drafted a motion for approval of PAGA settlement, and will file the same within one week of receiving back signed versions of the Settlement Agreement,” the Motion for Approval of PAGA Settlement was filed in Case 20CV-03783, is also set for hearing on July 10, 2024, and a tentative ruling is provided below. Order to Show Cause re: Dismissal-Notice of Settlement Continued on the Court’s own motion to Friday, February 28, 2025, at 8:15 A.M. in Courtroom 8.

HARTLEY VS. SHASTA COMMUNITY HEALTH CENTER Case Number: CVCV21-0198376 Tentative Ruling on Motion for Summary Judgment/Adjudication: Defendants Shasta Community Health Center, Dawn Skowron, Rhonda Nunnelley and Melissa Turley move for summary judgment or in the alternative summary adjudication pursuant to CCP § 437c. Request for Judicial Notice: Defendants have requested judicial notice of the complaint and amended complaint. Plaintiff has requested judicial notice of federal court decisions. No objections have been raised to the requests. The requests for judicial notice are granted. In granting judicial notice of the federal decisions, the Court is not making any finding that said authority is binding or persuasive. Plaintiff’s Objections to Evidence: The Court has reviewed each of Plaintiff’s objections. All objections are OVERRULED. Defendants’ Objections: Defendants correctly object to the supporting declarations filed by Plaintiff. Normally, evidence is provided by a declaration by the person with personal knowledge or a declaration by counsel authenticating the evidence such as deposition transcripts, pleadings, documents or even excerpts from deposition transcripts. Instead of providing the evidence correctly, Plaintiff’s counsel provide affirmative testimony based on the underlying evidence. This is not allowed. The objections are sustained as to the affirmative statements of counsel. The objections are overruled to the extent they relate to authenticating the underlying evidence. The Court will consider the underlying evidence in the form of the deposition transcripts and discovery responses. Factual Background: Discrimination Allegations: Plaintiff worked for Defendant Shasta Community Health (Shasta) in their call center. On or about March 10, 2021, Plaintiff requested an intermittent FMLA/CFRA leave related to a serious medical condition. The paperwork was provided to Shasta’s Benefits Coordinator, Rhonda Nunnelley. Nunnelly advised Plaintiff she could use her leave on an intermittent basis or convert to a full-time leave. On April 19, 2021, Plaintiff converted to a full-time leave which expired on June 30, 2021. On July 1, 2021, Plaintiff provided Shasta with her return to work, full-time in the call center “as tolerated.” Her medical provider had cleared her for eight-hour days and indicated that she was “ok” to use the phone as tolerated. Plaintiff’s supervisor, Dawn Skowron, allowed Plaintiff to curtail phone usage by breaking up her day with training and administrative work. Plaintiff determined she was unable to continue to work due to voice issues. On July 7, 2021, Plaintiff obtained a new doctor’s note that took her off work. Shasta then provided Plaintiff with additional unpaid leave through July 31, 2021. Plaintiff’s medical care provider authorized her to return to work full-time on August 1, 2021, without any restrictions. After Plaintiff indicated she was unable to tolerate speaking continuously, Shasta evaluated whether there were any alternative positions that it could reassign Plaintiff. HR evaluated all available positions that had either limited or no talking as part of the job duties. Three positions were identified; a full-time medical scribe which required no talking, a screener position that required only some talking and finally, a part time screener position. Shasta offered to pay for Plaintiff’s training for the scribe position. Plaintiff declined all three positions. It is disputed whether or to the extent that Plaintiff stated she had anxiety about being around sick patients due to her prior cancer diagnosis and current medical recovery. As it relates to alternative positions, Plaintiff inquired into referral coordinator positions. Shasta looked into the request but there were no such positions available at that time. Shasta alleges it offered Plaintiff all available, alternative positions for which she was qualified. On August 2, 2021, Plaintiff met with Nunnelley and Turley, the Deputy Chief of Human Resources. This was Plaintiff first and only encounter with Turley. The events of this meeting are in dispute. Defendants allege they again offered the three positions which Plaintiff declined. Plaintiff denies the positions and alleges she stated she needed more time to recover. Plaintiff was terminated after her leave term expired. Sexual Harassment Allegations: Plaintiff alleges a single incident of sexual harassment committed by a patient caller that occurred on February 23, 2021. Plaintiff alleges that the matter was brought to her supervisor’s attention, but the supervisor did not take over the call as required. Another employee took over the call. Plaintiff then complained to Human Resources about the call. No further sexual harassment has been identified other than the purported February 23, 2021, incident. Legal Standard: Summary judgment may be granted where it is shown that the action has no merit or that there is no defense to the action. CCP § 437c(a). The Court must determine from the evidence presented that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law. CCP § 437c(c). In moving for summary judgment, a defendant has met his or her burden of showing that a cause of action has no merit if the defendant has shown that one or more elements of the cause of action cannot be established, or that there is a complete defense to that cause of action. Once the defendant has met that burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. The plaintiff may not rely upon the mere allegations or denials of his pleadings to show that a triable issue of material fact exists but, instead, must set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto. CCP § 437c(o); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 849. The scope of the defendant’s initial burden is defined by the pleadings. 580 Folsom Assocs. v. Prometheus Dev. Co. (1990) 223 Cal.App.3d 1, 18. “Because summary judgment is a drastic measure that deprives the losing party of trial on the merits, it may not be invoked unless it is clear from the declarations that there are no triable issues of material fact.” Johnson v. Superior Court (2006) 143 Cal. App. 4th 297, 304. Disability Discrimination in Violation of FEHA (First Cause of Action), Discrimination in Violation of FMLA/CFRA (Eighth Cause of Action) & Failure to Prevent Disability Discrimination in Violation of FEHA (Fifth Cause of Action): The process for analyzing a cause of action for discrimination is explained in detail in Wills v. Superior Court: California has adopted the three-stage burden-shifting test established by the United States Supreme Court for trying claims of discrimination....” (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354, 100 Cal.Rptr.2d 352, 8 P.3d 1089 (Guz).) “This so-called McDonnell Douglas test reflects the principle that direct evidence of intentional discrimination is rare, and that such claims must usually be proved circumstantially. Thus, by successive steps of increasingly narrow focus, the test allows discrimination to be inferred from facts that create a reasonable likelihood of bias and are not satisfactorily explained.” (Guz, supra, 24 Cal.4th at p. 354, 100 Cal.Rptr.2d 352, 8 P.3d 1089.) In the first stage, the plaintiff bears the burden to establish a prima face case of discrimination. (Guz, supra, 24 Cal.4th at p. 354, 100 Cal.Rptr.2d 352, 8 P.3d 1089.) The burden in this stage is “ ‘not onerous' ” (id. at p. 355, 100 Cal.Rptr.2d 352, 8 P.3d 1089), and the evidence necessary to satisfy it is minimal (Sandell v. Taylor–Listug, Inc. (2010) 188 Cal.App.4th 297, 310, 115 Cal.Rptr.3d 453 (Sandell)). On a disability discrimination claim, the prima facie case requires the plaintiff to show “he or she (1) suffered from a disability, or was regarded as suffering from a disability; (2) could perform the essential duties of the job with or without reasonable accommodations, and (3) was subjected to an adverse employment action because of the disability or perceived disability.” (Ibid.) If the plaintiff meets this burden, “ ‘ “the burden shifts to the defendant to [articulate a] legitimate nondiscriminatory reason for its employment decision....” ...’ ” (Arteaga v. Brink's, Inc. (2008) 163 Cal.App.4th 327, 342–343, 77 Cal.Rptr.3d 654, alteration in original (Arteaga).) This likewise is not an onerous burden (Board of Trustees of Keene State College v. Sweeney (1978) 439 U.S. 24, 25, fn. 2, 99 S.Ct. 295, 58 L.Ed.2d 216), and is generally met by presenting admissible evidence showing the defendant's reason for its employment decision (Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1004, 93 Cal.Rptr.3d 338 (Scotch)). Finally, if the defendant presents evidence showing a legitimate, nondiscriminatory reason, the burden again shifts to the plaintiff to establish the defendant intentionally discriminated against him or her. (Reeves v. Sanderson Plumbing Products, Inc. (2000) 530 U.S. 133, 142, 120 S.Ct. 2097, 147 L.Ed.2d 105 (Reeves).) The plaintiff may satisfy this burden by proving the legitimate reasons offered by the defendant were false, creating an inference that those reasons served as a pretext for discrimination. (Ibid.) A defendant's summary judgment motion “slightly modifies the order of these [McDonnell Douglas ] showings.” (Scotch, supra, 173 Cal.App.4th at p. 1005, 93 Cal.Rptr.3d 338.) Consequently, the OC Court had the initial burden to either (1) negate an essential element of Wills's prima face case (Arteaga, supra, 163 Cal.App.4th at p. 344, 77 Cal.Rptr.3d 654) or (2) establish a legitimate, nondiscriminatory reason for terminating Wills (Scotch, supra, 173 Cal.App.4th at p. 1005, 93 Cal.Rptr.3d 338). “[T]o avoid summary judgment [once the employer makes the foregoing showing], an employee claiming discrimination must offer substantial evidence that the employer's stated nondiscriminatory reason for the adverse action was untrue or pretextual, or evidence the employer acted with a discriminatory animus, or a combination of the two, such that a reasonable trier of fact could conclude the employer engaged in intentional discrimination.” (Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1004–1005, 67 Cal.Rptr.2d 483 (Hersant).) Wills v. Superior Court (2011) 195 Cal. App. 4th 143, 159-160. Defendants’ evidence establishes a legitimate reason for Plaintiff’s separation: that she could not perform her job duties in the phone center due to an inability to speak on the phone for more than short periods of time. The burden therefore shifts to the Plaintiff to show that the purported legitimate reasons were pretextual. Plaintiff’s evidence is at best minimal and circumstantial. Plaintiff has not provided the required “substantial evidence” required to establish a triable issue of fact. The Court finds that Plaintiff has failed to establish her burden and summary adjudication is appropriate as to the first and eighth causes of action for discrimination. Likewise, there is no triable issue of fact related to a failure to prevent disability discrimination (fifth cause of action). The evidence does not establish a triable issue of a failure to prevent the discrimination. Failure to Engage in the Interactive Process in Violation of FEHA (Second Cause of Action): An employer is required to engage in timely, good faith, interactive process with an employee to determine effective reasonable accommodations, if any, in response to a request for a reasonable accommodation by an employee with a known physical or mental disability or known medical condition. Gov. Code § 12940(n). Shasta recognized that Plaintiff required an accommodation and engaged in the interactive process. Defendants evaluated alternative positions and located three possible alternatives. Shasta offered the three positions to Plaintiff. Shasta even offered to pay for the training for one of the positions. Based on the foregoing, the Court finds that Defendants have met their initial burden, thereby shifting the burden to Plaintiff. Plaintiff’s evidence establishes that she informed Defendants that she needed more time to heal and requested additional time. Defendants did not consider additional leave as an accommodation. “A term of leave from work can be a reasonable accommodation under FEHA.” Moore v. Regents of University of California (2016) 248 Cal.App.4th 216, 243. “[H]olding a job open for an employee on a leave of absence or extending a leave provided by the CFRA, the FMLA, other leave laws, or an employer’s leave plan may be a reasonable accommodation…” 2 CCR § 11068(c). Plaintiff has established a triable issue of fact in regard to whether there was a failure to engage in the interactive process. Summary adjudication is denied as to this cause of action. Failure to Provide a Reasonable Accommodation in Violation of FEHA (Third Cause of Action): As noted above, the Court has found that Plaintiff has identified a possible reasonable accommodation in the form of additional leave. Therefore, there is a triable issue of fact as to this cause of action as well. Summary adjudication is denied as to this cause of action. Retaliation for Requesting Accommodation in Violation of FEHA (Fourth Cause of Action) and Retaliation for Reporting Failure to Prevent Sexual Harassment in Violation of FEHA (Seventh Cause of Action): Past California cases hold that in order to establish a prima facie case of retaliation under the 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. (Iwekaogwu v. City of Los Angeles (1999) 75 Cal.App.4th 803, 814–815, 89 Cal.Rptr.2d 505; Flait v. North American Watch Corp. (1992) 3 Cal.App.4th 467, 476, 4 Cal.Rptr.2d 522 [adopting the title VII (Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.) burden-shifting analysis of McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 802–805, 93 S.Ct. 1817, 36 L.Ed.2d 668].) Once an employee establishes a prima facie case, the employer is required to offer a legitimate, nonretaliatory reason for the adverse employment action. (Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 68, 105 Cal.Rptr.2d 652.) 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. (Ibid.) Yanowitz v. L’Orea USA, Inc. (2005) 36 Cal. 4th 1028, 1042. The analysis for these retaliation claims is essentially the same as explained above related to the first cause of action for discrimination. Defendants have established a legitimate nonretaliatory reason for the separation and Plaintiff has failed to provide evidence of intentional retaliation. Summary adjudication is granted as to these causes of action. Failure to Prevent Sexual Harassment in Violation of FEHA (Sixth Cause of Action): It is well established a failure to prevent sexual harassment claim is predicated on establishing a cognizable claim of sexual harassment. M.F. v Pacific Pearl Hotel Management LLC (2017) 16 Cal.App.5th 693, 700. Plaintiff’s Amended Complaint does not assert any claim for sexual harassment. The failure to prevent cause of action arises from the February 23, 2021, phone call wherein Plaintiff felt sexually harassed by a third-party caller. The issue was raised with her supervisor Defendant Nunnelly who failed to take over the call; however, Plaintiff did not get back on the call and never spoke to that individual again. In fact, Plaintiff has not identified any subsequent sexual harassment. There is no triable issue of fact that there was a sexual harassment incident that the Defendants could have prevented. Without an underlying sexual harassment incident, the Court finds that summary adjudication is appropriate. Wrongful Termination in Violation of Public Policy (Ninth Cause of Action): “An employer may not discharge an at will employee for a reason that violates fundamental public policy. This exception is enforced through tort law by permitting the discharged employee to assert against the employer a cause of action for wrongful discharge in violation of fundamental public policy.” Stevenson v. Superior Court (1997) 16 Cal. 4th 880, 887. “[A]a policy may support a wrongful discharge claim only if it satisfies four requirements. The policy must be (1) delineated in either constitutional or statutory provisions; (2) “public” in the sense that it “inures to the benefit of the public” rather than serving merely the interests of the individual; (3) well established at the time of the discharge; and (4) “substantial” and “fundamental.” Id. at 900. Here, the Court has already found that the failure to engage in the interactive process and failure to provide an accommodation survive this motion. Defendants challenge this cause of action on the sole ground that it is duplicative of the other causes of action. Defendants have failed to obtain summary adjudication as to all causes of action; therefore their argument fails. Further, the Court notes that failing to engage in the interactive process and failing to accommodate would be against public policy. Accordingly, the Court finds there is a triable issue of fact as to this cause of action. Summary adjudication is denied. Intentional Infliction of Emotional Distress (Tenth Cause of Action): The element of intentional infliction of emotional distress (IIED) are: 1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; 2) the plaintiff’s suffering severed or extreme emotional distress; and 3) actual and proximate causation. Hughes v. Pair (2009) 46 Cal.4th 1035, 1050. A defendant’s conduct is outrageous when it is so “extreme as to exceed all bounds of that usually tolerated in a civilized community.” Id. at 1051. Here, the Court finds that Defendants have met their burden to show that the conduct complained of by Plaintiff was not sufficiently “extreme and outrageous” to survive this motion. While there is sufficient evidence of triable issues of material fact for failure to engage in the interactive process or to provide a required accommodation, nothing alleged by Plaintiff shows the conduct rises to the level of “extreme and outrageous” conduct to satisfy a showing of IIED. Summary adjudication is granted as to this cause of action. Unfair Business Practices (Eleventh Cause of Action): Unfair competition includes any unlawful, unfair or fraudulent business act or practice. B&P § 17200. Like wrongful termination above, Defendants sole grounds for challenging this cause of action is that it is duplicative of the other causes of action. Defendants have failed to obtain summary adjudication as to all causes of action; therefore their argument fails. Further, the Court notes that failing to engage in the interactive process and failing to accommodate would be unlawful. Accordingly, the Court finds there is a triable issue of fact as to this cause of action. Summary adjudication is denied. Summary Judgment is DENIED. Summary Adjudication is GRANTED as to the first, fourth, fifth, sixth, seventh, eighth and tenth causes of action. Summary Adjudication is DENIED as to the second, third, ninth and eleventh causes of action. Defendants shall prepare a new order consistent with the Court’s ruling.

Matter on the Discovery Calendar for Wednesday, July 10, 2024, line 3, PLAINTIFF JULIA MALDONADO Motion To Compel Further Responses To Form Interrogatories Employment-Law, Set One, To Defendant Delta Dental Of California Pro Tem Judge Scott Borrowman, a member of the California State Bar who meets all the requirements set forth in CRC 2.812 to serve as a temporary judge, has been assigned to hear this motion. Prior to the hearing all parties to the motion will be asked to sign a stipulation agreeing that the motion may be heard by the Pro Tem Judge. If all parties to the motion sign the stipulation, the hearing will proceed before the Judge Pro Tem who will decide the motion with the same authority as a Superior Court Judge. If a party appears by telephone, the stipulation may be signed via fax or consent to sign given by email. If not all parties to the motion sign the stipulation, the Pro Tem Judge will hold a hearing on the motion and, based on the papers submitted by the parties and the hearing, issue a report in the nature of a recommendation to the Dept. 302 Judge, who will then decide the motion. If a party does not appear at the hearing, the party will be deemed to have stipulated that the motion will be decided by the Pro Tem Judge with the same authority as a Superior Court Judge. The Pro Tem Judge has issued the following tentative ruling: Motion to compel GRANTED in part and DENIED in part. Section 1(c) of the Instructions to Form Interrogatories makes clear that an answering party retains the right to make any objection to form interrogatories. Considering the proffer on the scope of Defendant's operations in California, the objection based on scope is sustained. However, Defendant must still answer the interrogatory to the extent possible - including the extent to which it does not object. CCP 2030.220(b). Thus, Defendant must provide complete information for those actions to which it does not object. If Plaintiff remains unsatisfied with the response, Plaintiff may meet and confer and then file another motion to compel. Any such motion after amendment will allow the Court to evaluate whether the limited response is sufficient. Sanctions DENIED. Further meet and confer could have resolved this dispute. For the 9:00 a.m. Discovery calendar, all attorneys and parties are required to appear remotely. Hearings will be conducted by videoconference using Zoom. To appear at the hearing, go to the court's website at sfsuperiorcourt.org under "Online Services," navigate to "Tentative Rulings," and click on the appropriate link (DISCOVERY, DEPARTMENT 302 DAILY AT 9:00 A.M.), or dial the corresponding number and use the meeting ID, and password for Discovery Department 302. Any party who contests a tentative ruling must send an email to sborrowman@gmail.com with a copy to all other parties by 4pm stating, without argument, the portion(s) of the tentative ruling that the party contests. The subject line of the email shall include the line number, case name and case number. If the tentative ruling is not contested, the parties are deemed to have stipulated to the Pro Tem hearing the motion and the Pro Tem will sign an order confirming the tentative ruling. The prevailing party is required to prepare a proposed order repeating verbatim the substantive portion of the tentative ruling and must e-mail it to the Judge Pro Tem. The court no longer provides a court reporter in the Discovery Department. Parties may retain their own reporter, who may appear remotely. A retained reporter must be a California certified court reporter (CSR), for only a CSR's transcript may be used in California courts. If a CSR is being retained, include in your email all of the following: their name, CSR and telephone numbers, and their individual work email address. = (302/JPT)

Re: Manuel Hernandez Diego v. James Marshall Farm Service, LLC / Complex / Class Action Superior Court Case No. 23CECG03758 Hearing Date: July 11, 2024 (Dept. 501) Motion: by Plaintiff for Preliminary Approval of Class Action Settlement Tentative Ruling: To grant plaintiff’s motion for preliminary approval of the class settlement. Moving counsel shall contact the calendaring clerk to set the final approval hearing. Explanation: 1. Settlement The court “bears the responsibility to ensure that the recovery represents a reasonable compromise, given the magnitude and apparent merit of the claims being released, discounted by the risks and expenses of attempting to establish and collect on those claims by pursuing litigation. The court has a fiduciary responsibility as guardians of the rights of the absentee class members when deciding whether to approve a settlement agreement . . . The courts are supposed to be the guardians of the class.” (Kullar v. Foot Locker Retail, Inc. (2008) 168 Cal.App.4th 116, 129; see also Koby v. ARS National Services, Inc. (9th Cir. 2017) 846 F.3d 1071, 1079 [“When, as here, a class settlement is negotiated prior to formal class certification, there is an increased risk that the named plaintiffs and class counsel will breach the fiduciary obligations they owe to the absent class members. As a result, such agreements must withstand an even higher level of scrutiny for evidence of collusion or other conflicts of interest than is ordinarily required under Rule 23(e) before securing the court's approval as fair.”].) “[T]o protect the interests of absent class members, the court must independently and objectively analyze the evidence and circumstances before it in order to determine whether the settlement is in the best interests of those whose claims will be extinguished . . . [therefore] the factual record must be before the . . . court must be sufficiently developed.” (Kullar, supra, 168 Cal.App.4th at p. 130.) The court must cautiously approach a situation where “there was nothing before the court to establish the sufficiency of class counsel's investigation other than their assurance that they had seen what they needed to see.” (Id. at p. 129.) “In determining whether a class settlement is fair, adequate and reasonable, the trial court should consider relevant factors, such as ‘the strength of plaintiffs' case, the risk, expense, complexity and likely duration of further litigation, the risk of maintaining class action status through trial, the amount offered in settlement, the extent of discovery completed and the stage of the proceedings, the experience and views of counsel, the presence of a governmental participant, and the reaction of the class members to the proposed settlement.’ The list of factors is not exclusive and the court is free to engage in a balancing and weighing of factors depending on the circumstances of each case.” (Wershba v. Apple Computer, Inc. (2001) 91 Cal.App.4th 224, 244–245, internal citations omitted, disapproved of on other grounds by Hernandez v. Restoration Hardware, Inc. (2018) 4 Cal.5th 260.) Plaintiff contends and provides evidence that the proposed settlement is the product of arms-length adversarial negotiations between counsel for plaintiff and counsel for defendant, including a mediation session with Tripper Ortman (Ret.), a respected mediator. (See Brown, Decl. ¶¶ 10, 11.) Plaintiffs’ counsel has also engaged an expert, whose findings support the alleged non-compliance. (Id. at ¶ 10.) Considering the depth of the expert’s analysis, the inclusion of realistic probabilities of prevailing verse the attendant risks of not collecting after a trial, the settlement appears reasonable. Proposed Class Notice The proposed notice appears to be adequate, as the class administrator will mail out notices to the class members. The notices will provide the class members with information regarding their time to opt out or object, the nature and amount of the settlement, the impact on class members if they do not opt out, the amount of attorney’s fees and costs, the service award to the named class representatives, and the settlement administrator’s fees and costs. (See Brown Decl, Ex. B.) Therefore, the court finds that the proposed class notice is adequate. Attorney Fees and Costs/Payments to Class Representative and Administrator Plaintiff’s counsel claims to seek attorneys’ fees of 35% (an estimated $110,250) and costs not exceeding $25,000. Plaintiff’s counsel also promises to provide information necessary to perform a lodestar calculation. (See Brown, Decl. ¶ 33.) Accordingly, at the time of final approval the court can and may award a lesser amount of attorneys’ fees. The fees motion should provide a fully supported lodestar analysis, including time/billing statements and justification for the billing rates claimed. Plaintiff’s counsel describes the assistance of plaintiff and the justification for his service payments. Assuming this information is supported by the plaintiffs’ own declarations at the time of final approval, the service payments look acceptable. The settlement agreement provides for payment of up to $8,250 to the settlement administrator, and the bid is attached, it too appears reasonable. (Brown, Decl. ¶ 34.) 2. Conditional Certification A precertification settlement may stipulate that a defined class be conditionally certified for settlement purposes. The court may make an order approving or denying certification of a provisional settlement class after the preliminary settlement hearing. (Cal. Rules of Court, rule 3.769(d).) Before the court may approve the settlement, however, the settlement class must satisfy the normal prerequisites for a class action. (Amchem Products, Inc. v. Windsor (1997) 521 US 591, 625-627; see also Newberg, Newberg and Rubenstein on Class Actions (Westlaw, 2017) Section 7:3 [“The parties’ representation of an uncontested motion for class certification does not relieve the Court of the duty of determining whether certification is appropriate.”) “Class certification requires proof (1) of a sufficiently numerous, ascertainable class, (2) of a well-defined community of interest, and (3) that certification will provide substantial benefits to litigants and the courts, i.e., that proceeding as a class is superior to other methods. [Citations.] In turn, the community of interest requirement embodies three factors: (1) predominant common questions of law or fact; (2) class representatives with claims or defenses typical of the class; and (3) class representatives who can adequately represent the class.” (Fireside Bank v. Superior Court (2007) 40 Cal.4th 1069, 1089.) Numerosity and Ascertainability “Whether a class is ascertainable is determined by examining (1) the class definition, (2) the size of the class, and (3) the means available for identifying class members.” (Reyes v. Board of Supervisors (1987) 196 Cal.App.3d 1263, 1271.) In essence, to determine the identity of potential class members, the court will look to whether there are any objective criteria to describe them and whether they can be found without unreasonable expense or effort through business or official records. (Lewis v. Robinson Ford Sales, Inc. (2007) 156 Cal.App.4th 359, 369-370, citing Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 706 [proposed class action of taxi cab users from 1960 to 1964 who paid by coupons identifiable where they could be identified by serial numbers which were kept manually, not in computerized form].) Here, the 233 class members are identifiable through defendant’s records. (Brown, Decl. ¶ 12), and the class is defined as “All current and former non-exempt employees of Defendant James Marshall Farm Service, LLC who have worked at least one shift for Defendant Orange Cove-Sanger Citrus Association and/or James J. Marshall dba Marshall Vineyards at any time during the period of April 6, 2022, through April 8, 2024.” (Points & Auth. at p. 2:4-6.) Community of Interest “[T]he ‘community of interest requirement embodies three factors: (1) predominant common questions of law or fact; (2) class representatives with claims or defenses typical of the class; and (3) class representatives who can adequately represent the class.’ ” (Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1021, internal citations omitted.) Common issues predominate when they would be “the principal issues in any individual action, both in terms of time to be expended in their proof and of their importance.” (Vasquez v. Superior Court (1971) 4 Cal.3d 800, 810.) Common questions need only be “sufficiently pervasive to permit adjudication in a class action rather than in a multiplicity of suits.” (Ibid.) In addition, the class representative must be able to represent the class adequately. (Caro v. Procter & Gamble (1993) 18 Cal.App.4th 644, 669.) “[I]t has never been the law in California that the class representative must have identical interests with the class members . . . The focus of the typicality requirement entails inquiry as to whether the plaintiff’s individual circumstances are markedly different or whether the legal theory upon which the claims are based differ from that upon which the claims of the other class members will be based.” (Classen v. Weller (1983) 145 Cal.App.3d 27, 46.) Plaintiff contends that the class members’ claims are premised on whether defendant had legally compliant policies and practices. In addition, the named plaintiffs’ claims involve similar legal theories as those asserted by the other class members and class counsel assert credentials and qualifications indicating they are adequate to represent the interests of the class for purposes of settlement. Finally, given the common issues and common evidence, multiple trials do not appear efficient, thus class treatment appears the superior method of adjudication. Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Procedure section 1019.5, subdivision (a), no further written order is necessary. The minute order adopting this tentative ruling will serve as the order of the court and service by the clerk will constitute notice of the order. Tentative Ruling Issued By: DTT on 7/9/2024 . (Judge’s initials) (Date)

MOTION TO COMPEL DEFENDANT TO PROVIDE FURTHER ZARAGOZA VS PALOS CVRI2302149 RESPONSES TO PLAINTIFF'S VERDES BUILDING CORP. SPECIAL INTERROGATORIES (SET ONE) Tentative Ruling: Continue to July 17.

Case Number: 23STCV02273 Hearing Date: July 15, 2024 Dept: 39 TENTATIVE RULING DEPARTMENT 39 HEARING DATE July 15, 2023 CASE NUMBER 23STCV02273 MOTION Motion for Protective Order MOVING PARTY Plaintiff Jane Doe OPPOSING PARTIES Defendant Wells Fargo Bank, N.A. MOTION Plaintiff Jane Doe (Plaintiff) moves for a protective order to preclude Defendant Wells Fargo Bank, N.A. (Defendant) from taking a further full-day session of Plaintiffs deposition, or, in the alternative, to limit the questioning at the session to topics Defendant has not yet covered. Defendant opposes the motion. ANALYSIS Code of Civil Procedure section 2025.420 provides, The court, for good cause shown, may make any order that justice requires to protect any . . . deponent . . . from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense . . . . (Code Civ. Proc., § 2025.420.) In its order of May 28, 2024, the court ordered Plaintiff to appear for a further deposition session on June 13, 2024, which would not be subject to a four-hour limit. (See May 28, 2024 Minute Order.) The motion for protective order is, therefore, moot to the extent it seeks to preclude Defendant from conducting what Defendant has committee to being a deposition session of no more than seven hours. Plaintiff argues, Defendant should be required to identify in writing the new topics it intends to question Plaintiff about, identify the relevance of such topics, and the Court should order that the Defendants questioning be confined to those topics. (Memorandum of Points and Authorities in Support of Motion for Protective Order, p. 7.) Plaintiff cites no authority for such an order. If Plaintiff seeks to limit Defendants examination to specified topics, Plaintiff has the burden of establishing good cause that certain matters are not to be inquired into and the scope of the examination is to be limited to those matters. (Code Civ. Proc., § 2025.420, subds. (b)(9)-(10).) Moreover, at a minimum, Plaintiff must specify the topics not to be covered and establish the burden and intrusiveness of examination concerning them would outweigh the utility of the discovery. ( Emerson Electric Co. v. Superior Court (1997) 16 Cal.4th 1101, 1110.) Plaintiff has not satisfied her burden. In her memorandum of points and authorities, Plaintiff requests a discovery referee, and asks that the next session of her deposition take place at the courthouse. Plaintiff does not seek this relief in her notice of motion. The moving party must state in the first paragraph of the notice of motion exactly what relief the party seeks, and on what grounds. (Code Civ. Proc., § 1010; Cal. Rules of Court, rule 3.1110, subd. (a).) Moreover, Plaintiff has not adequately established the circumstances of this case warrant the involvement of a referee. Accordingly, this request is denied. Defendant is to give notice of this order and file proof of service of same.

Case Number: 23SMCV02312 Hearing Date: July 10, 2024 Dept: I The demurrer is SUSTAINED WITH LEAVE TO AMEND. This is an employment case brought by plaintiff against the Regents of the UC. Plaintiff alleges that her supervisor made inappropriate comments regarding a womans place being in the home. She also contends that she had a disability and was told that if she wanted to keep her job, she would have to accept a demotion and pay cut due to the work restrictions even though she was able to do the job she had with reasonable accommodations. Plaintiff asserts that after she complained, her supervisor retaliated. Plaintiff also alleges that she was directed to have another employee deliver tanks that the other employee was not qualified to handle, which would have been dangerous. Her supervisor allegedly yelled at her and said she would be written up for insubordination. That caused plaintiff to need a leave of absence. When she returned, she claims she was told that she was to be reassigned. Plaintiff asserts that she requested to work with a specialist to find a position that could accommodate her restrictions, but the positions found were per diem in nature. There are other allegations, and this brief overview is not meant to be a full list of the allegations or the bases of the complaint. She herself found an alternative position in 2021, but it was at a lower pay rate. Plaintiff received a right to sue letter on May 20, 2022. Defendant demurs on the basis that the causes of action are time barred because they largely occurred in 2019 or before. Plaintiff opposes. It is well settled that before bringing a suit under the FEHA, an aggrieved employee must file an administrative claim with the DFEH and obtain a right to sue letter. Obtaining that letter is a jurisdictional requirement, and the failure to obtain it deprives the court of subject matter jurisdiction. At the time many of the events allegedly occurred, no administrative complaint can be filed more than one year after the incident. ( Wassmann v. South Orange County Community College Dist. (2018) 24 Cal.App.5th 825.) Plaintiff here asserts that the last wrongful act occurred in March 2021. That is important because an amendment to the time frame for brining claims of a FEHA violation enlarged the period from one year to three. If that amendment pertains, then the claims are timely. On the other hand, if the last actual act of discrimination occurred in 2019, then it would be before the statute was amended to three years and the action, or much of it, would not be timely. Or, put another way, if there was a significant enough break in the alleged misconduct so that the 2019 misconduct could not be characterized as part of a continuing discrimination course of conduct, then the conduct occurring in that time frame would be time barred (although the conduct in March 2021 would still be timely). The allegation as to the March 2021 act is not adequately set forth to capture the potential extension. The complaint alleges, at paragraph 12(i), that when plaintiff returned from her leave of absence on November 18, 2019, she was approached by the disability management specialist who said that plaintiff was to go to her supervisors office. Plaintiff was told that her employer requested a reassignment and that her current assignment would not extend more then 90 days and that if another position was not found, plaintiff would be placed on leave. The specialist also allegedly told plaintiff that plaintiff needed to submit a list of jobs she could perform and update her resume so she could be placed in a job position without restriction. Plaintiff voiced concerns, but they were not taken into account. Rather, plaintiff was told that even though she did not want to be reassigned and that her current position (with accommodation) was supposed to be permanent, her position was not in fact permanent. Plaintiff asserts that she was given no help in finding a position that would accommodate her restrictions. Plaintiff was given four positions, but they were per diem, not full time. She found another job (without her employers help), but it was at a lower rate of pay and it was in 2021. The courts problem is that there is an unexplained gap between 2019, when plaintiff returned from her leave of absence, and March 2021, when plaintiff was eventually reassigned. It is unclear from the complaint whether plaintiff remained in her prior position between those dates, notwithstanding the statement that her current position would last for no more than 90 days. And that matters. Under the continuing violation doctrine, plaintiff may recover for all of the wrongful conduct she can proveeven conduct occurring outside the statute of limitationsif she can prove that the conduct was all part of one continuing violation. But where the violations are separate, then they do not relate back. To come within the doctrine, plaintiff must allege that defendants actions before and during the statutory period were sufficiently similar in kind, occurred with sufficient frequency, and had not acquired a degree of permanence. ( Wassmann, supra, 24 Cal.App.5th at pp.850-851.) Here, there are no allegations as to any of these three factors. And the conduct appears, at least at first blush to be different. The conduct up to 2019 involved inappropriate statements or behavior by plaintiffs supervisor, but the conduct in 2021 appears to be the failure to offer plaintiff an alternative position. The court is not saying that plaintiff cannot bridge this gap; the court is only saying that plaintiff needs to allege the linkage. If plaintiff can so allege, the court would think that defendants position is better tested on summary judgment or trial than by demurrer. Therefore, the court will SUSTAIN THE DEMURRER WITH LEAVE TO AMEND. Plaintiff has 30 days to amend to allege the relationship between the earlier allegations and the alleged misconduct occurring in 2021.