Preview
Class members will receive, on . -
rage, $2,840.77, or $52.41 per pay-period,
'
which I addition to any amoun ‘
o be paid under the PAGA portion of the
settlement.
'
As forthe -‘
A ‘
portion ofthe settlement, the co — nds itis “fair, reasonable,
and adequate in 'ew o PAGA's purposes to rem -. e present labor law violations,
deter future o es, and to a imize enforce : of state labor laws." (Moniz v. Adecco
USA, Inc. upra, 72 Cal.App. ‘
tp. 7 . The court furtherfindsthatthe plaintiff“has
‘-
adequ -|y represented the state' ests, and hence the public interest.” . at p.
89. he LWDA was given a pportunity a object and
'
did not do so. e aggrieved
e ployees will receive, o'
average, $67.93, thc 'n
additio a ayments underthe
class portion of the '
|ement.‘ (All PAGA participants . : «.soV'class members
'
because there e no opt-outs from the class.)
T ~
motion forfinal approval is grant. The class is certified for ~'.
purpose.
'
The c rt willschedule a final hearino e onfirm final distribution of all funds
ap oximately one year.
/
14. asanav.K- cEnvironmentalS- ices,lnc.
CIV = =4 7
'
Motion rMoneta v :- '.
Tent Ive Ruling:
v'
aintiff seeks $3,9 9 in sanctions, assessed agains - : a dant and its attorney,
'
base on failure to com with a discovery order. The mo is un0o - = d. The
m Ion istherefore o n.ted The sanctions are due an - oayable withiQUP thirtyH
cl: »
,v
COURNO' COUF’T OF
ryO CA
15. Roe v. Victor Elementary School District SAN bcmfl‘j‘) 'wmftff‘mr
I
«c. J
CIVDS1512932 ,ST
forSummary Judgment SEP
Motion 1 2 ”M
Tentative Ruling:
Denied. agzéflflgw
FEN
her):
Defendant moves for summaryjudgment on the ground that plaintiff changed
testimony, firsttestifying that Mr. Cardenas did not do anything to make her feel
uncomfortable and that he did not touch her inappropriately, and then changing her
testimony on those questions. Defendant relies on the body of law holding that a party
cannot create a triable issue of fact to defeat summaryjudgment by changing prior
testimony on which the motion is based. “On summary judgment, a party cannot simply
change its story, submitting a declaration that contradicts itsprior discovery
1
Counsel failed to inform the court of the aggregate number of pay-periods in the PAGA period, so the court
isunable to calculate the amount each aggrieved employee will receive for each pay-period worked during the
PAGA period. This information must be provided to the settlement administrator.
Page 3 of 4
CV526091222
admissions." (3 CA Pretrial Civil Procedure: The Wagstaffe Group § 56-Vl (2022) [citing
Turley v. Familian Corp. (2017) 18 Cal.App.5th 969, 983 and D’Amico v. Board of
Medical Examiners (1974) 11 Ca|.3d 1].) The underlying policy behind the rule is that
“[i]n reviewing motions for summaryjudgment, the courts have long tended to treat
affidavits repudiating previous testimony as irrelevant, inadmissible, or evasive” and
thus the contradictory declarations do not constitute “substantial evidence of the
existence of a triable issue of fact.” (Advanced Micro Devices v. Great Am. Surplus
Lines Ins. Co. (1988) 199 Cal. App. 3d 791, 800.)
The application of this law to the facts of this case has several problems.
First, a deponent is allowed to make corrections to deposition testimony under
Code of Civil Procedure section 2025.520. Plaintiff did so, in compliance with the
statute. This is not a situation where deposition testimony became final, a motion for
summaryjudgment was then filed, and then plaintiff prepared a declaration
contradicting the earlier testimony.
Second, plaintiff presented evidenceyexplaining the reason for her earlier
“misstatement.” Whether that evidence is credible is not properly determined by the
court on summary judgment, but is left for the trier of fact.
Third, the particular questions asked were not phrased in a way that necessarily
established that no sexual abuse occurred. Th'e first question concerned how plaintiff
“felt." The second question asked for a conclusion, whether Mr. Cardenas’s conduct
was “inappropriate.” Code of Civil Procedure section 340.1, which extends the statute
of limitations for “child sexual abuse," references various sections of the Penal Code,
including Penal Code section 288, which makes ita crime to “willfully and lewdly
commits any lewd or Iascivious act upon or with the body, or any part or member
thereof, of a child who is under the age of 14 years, with the intent of arousing,
appealing to, 0r gratifying the lust, passions, or sexual desires of that person or the
”
child ..... How the child may have “felt”or the child’s conclusion whether the act was
“inappropriate" may be relevant, but it is not determinative. The relevant state of mind is
that of the perpetrator, not the victim.
Defendant argues that having a child sit on one’s lap simply is not child abuse,
ever. Often that is true, but it is not always or necessarily true.
Plaintiff may face credibility problems at trial based on the altered testimony, but
the impact of the altered testimony must be evaluated by the trier of fact, not by the
court. Defendant has failed to meet its threshold burden to show that there is no triable
issue of material fact. Summaryjudgment is therefore denied.
Page 4 of 4
CVSZ6091222
Preview
Class members will receive, on . - rage, $2,840.77, or $52.41 per pay-period, ' which I addition to any amoun ‘ o be paid under the PAGA portion of the settlement. ' As forthe -‘ A ‘ portion ofthe settlement, the co — nds itis “fair, reasonable, and adequate in 'ew o PAGA's purposes to rem -. e present labor law violations, deter future o es, and to a imize enforce : of state labor laws." (Moniz v. Adecco USA, Inc. upra, 72 Cal.App. ‘ tp. 7 . The court furtherfindsthatthe plaintiff“has ‘- adequ -|y represented the state' ests, and hence the public interest.” . at p. 89. he LWDA was given a pportunity a object and ' did not do so. e aggrieved e ployees will receive, o' average, $67.93, thc 'n additio a ayments underthe class portion of the ' |ement.‘ (All PAGA participants . : «.soV'class members ' because there e no opt-outs from the class.) T ~ motion forfinal approval is grant. The class is certified for ~'. purpose. ' The c rt willschedule a final hearino e onfirm final distribution of all funds ap oximately one year. / 14. asanav.K- cEnvironmentalS- ices,lnc. CIV = =4 7 ' Motion rMoneta v :- '. Tent Ive Ruling: v' aintiff seeks $3,9 9 in sanctions, assessed agains - : a dant and its attorney, ' base on failure to com with a discovery order. The mo is un0o - = d. The m Ion istherefore o n.ted The sanctions are due an - oayable withiQUP thirtyH cl: » ,v COURNO' COUF’T OF ryO CA 15. Roe v. Victor Elementary School District SAN bcmfl‘j‘) 'wmftff‘mr I «c. J CIVDS1512932 ,ST forSummary Judgment SEP Motion 1 2 ”M Tentative Ruling: Denied. agzéflflgw FEN her): Defendant moves for summaryjudgment on the ground that plaintiff changed testimony, firsttestifying that Mr. Cardenas did not do anything to make her feel uncomfortable and that he did not touch her inappropriately, and then changing her testimony on those questions. Defendant relies on the body of law holding that a party cannot create a triable issue of fact to defeat summaryjudgment by changing prior testimony on which the motion is based. “On summary judgment, a party cannot simply change its story, submitting a declaration that contradicts itsprior discovery 1 Counsel failed to inform the court of the aggregate number of pay-periods in the PAGA period, so the court isunable to calculate the amount each aggrieved employee will receive for each pay-period worked during the PAGA period. This information must be provided to the settlement administrator. Page 3 of 4 CV526091222 admissions." (3 CA Pretrial Civil Procedure: The Wagstaffe Group § 56-Vl (2022) [citing Turley v. Familian Corp. (2017) 18 Cal.App.5th 969, 983 and D’Amico v. Board of Medical Examiners (1974) 11 Ca|.3d 1].) The underlying policy behind the rule is that “[i]n reviewing motions for summaryjudgment, the courts have long tended to treat affidavits repudiating previous testimony as irrelevant, inadmissible, or evasive” and thus the contradictory declarations do not constitute “substantial evidence of the existence of a triable issue of fact.” (Advanced Micro Devices v. Great Am. Surplus Lines Ins. Co. (1988) 199 Cal. App. 3d 791, 800.) The application of this law to the facts of this case has several problems. First, a deponent is allowed to make corrections to deposition testimony under Code of Civil Procedure section 2025.520. Plaintiff did so, in compliance with the statute. This is not a situation where deposition testimony became final, a motion for summaryjudgment was then filed, and then plaintiff prepared a declaration contradicting the earlier testimony. Second, plaintiff presented evidenceyexplaining the reason for her earlier “misstatement.” Whether that evidence is credible is not properly determined by the court on summary judgment, but is left for the trier of fact. Third, the particular questions asked were not phrased in a way that necessarily established that no sexual abuse occurred. Th'e first question concerned how plaintiff “felt." The second question asked for a conclusion, whether Mr. Cardenas’s conduct was “inappropriate.” Code of Civil Procedure section 340.1, which extends the statute of limitations for “child sexual abuse," references various sections of the Penal Code, including Penal Code section 288, which makes ita crime to “willfully and lewdly commits any lewd or Iascivious act upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, 0r gratifying the lust, passions, or sexual desires of that person or the ” child ..... How the child may have “felt”or the child’s conclusion whether the act was “inappropriate" may be relevant, but it is not determinative. The relevant state of mind is that of the perpetrator, not the victim. Defendant argues that having a child sit on one’s lap simply is not child abuse, ever. Often that is true, but it is not always or necessarily true. Plaintiff may face credibility problems at trial based on the altered testimony, but the impact of the altered testimony must be evaluated by the trier of fact, not by the court. Defendant has failed to meet its threshold burden to show that there is no triable issue of material fact. Summaryjudgment is therefore denied. Page 4 of 4 CVSZ6091222