Preview
,1 ROB BONTA
Attorney General of California
2 KRISTIN M . DAILY
Supervising Deputy Attorney General
LED/EMDORSED
JAMES F. CURRAN
Deputy Attorney General FEB 2 ^ 2023
.'4 State Bar No. 142041
1300 1 Street, Suite 125 . By:. E. Macdonald
-;5 P.O. Box 944255 Deputy Clerk
Sacramento, CA 94244-2550
;6 Telephone: (916)210-6113
Fax: (916) 324-5567
•7 E-mail: James.Curran@doj.ca.gov
Attorneys for Defendant
8 Californiq Highway Patrol
9 SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 COUNTY OF SACRAMENTO
11
12
13
DAVID RIDGE, Case No. 34-2019-00265393
14
Plaintiff, DEFENDANT CHP'S REPLY TO
.15 PLAINTIFF'S OPPOSITION TO CHP'S
MOTION FOR SUMMARY JUDGMENT
16 OR SUMMARY ADJUDICATION OF
ISSUES
•17 THE CALIFORNIA HIGHWAY PATROL;
and DOES 1-100, inclusive. Date: March 2, 2023
1-8 Time: 1:30 p.m.
Defendants. Dept: 53
19 Judge: Hon. Richard K. Sueyoshi
Trial Date: April 3, 2023
20 Action Filed: September 23, 2019
21 INTRODUCTION
22 Despite lengthy argument and 758 "additional material facts," Plaintiff has failed to raise a
23 triable issue of fact that he was discriminated or retaliated against, or that he was denied
24 reasonable accommodation. As shown by the moving papers. Plaintiff was offered and rejected a
25 reasonable alternative accommodation, the Back Defender, the very same accommodation he now
26 uses. Plaintiff admits he wears the Back Defender now, and that he "is presently able to work
27 without accommodation." (Plaintiffs Memo, of Pts. & Auth. in Oppo. to Def MSJ [hereinafter
28 "Pltf MPA"], 16:27-17:1.) This admission guts his argument the Back Defender was not a
1
CHP's Reply to Pltf Opposition to CHP Motion for Sum. Jmt, or Sum, Adjudication (34-2019-00265393)
••-( r ... • U v,y
1 reasonable alternative accommodation. No reasonable jury could conclude CMP failed tp meet its
2 reasonabl.e accommodation obligations, liecause there is no genuine dispute concerning whether
3 GHP offered Plaintiff a reasonable alternative. And while Plaintiff argues he vvas constructively
4 terminated, he has failed to create a triable issue that he was subjected to anything close,to,the -
5 type ,of misconduct that is so intolerable or aggravated that a reasonable employer yvould realize
6 that a reaspnable person in Plaintiffs position would feel compelled to resign. Plaintiff is no\A^
7 working without an external, load-bearing vest (ELBV) and instead now uses the very
8 accommodation CHP offered years ago: the Back Defender. He thus is now working
9 successfully under the very conditions he claims were so hopelessly intolerable.
10 Furthermore, Plaintiff responds to CHP's UMFs with argument, speculation and opinion,
11 instead of describing the nature of the dispute and citing to evidence, as required by California
12 Rules of Court [CRC], Rule 3.1350 (0(2). Plaintiff also blasts the court with 758 additional
13 "facts," the. vast majority of which are not material to the issues on which CHP,base, this motion,
14 which is a violation of CRC, Rule 3.1350(f)(3).' Plaintiff also takes extreme liberties-with ,
15 citations to evidence. The disputed facts are not supported with competent evidence and therefore
16 should not be considered by the court. Unsupported immaterial facts cannot be the basis upon
17 which to deny summary judgment.
18 CHP is entitled to judgment as a matter of law because Plaintiff has not raised a triable
19 issue of fact concerning whether (1) he suffered any adverse employment action because of his
20 disability; (2) his claimed disability was a substantial motivating reason for any adverse
21 employment action; (3) CHP failed to offer him a reasonable alternative accommodation;
22 (4) CHP caused the breakdown of the interactive process; (5) Plaintiff was retaliated against,
23 given that Plaintiff was not subjected, due lo his claimed disability, to any adverse employment
24 action; or (6) CHP failed to prevent discrimination br retaliation.
25 - •
26
27 ' The fact that Plaintiff actually cited, in his memorandum of points and authorities, to
such a small percentage of this set of 758 facts, indicates that the majority of those facts indeed
28 are not material, and set forth solely to attempt to create a triable issue where there is none.
2
CHP's Reply to Pltf Opposition to CHP Motion for Sum.'Jmt. or Sum, Adjudication (34-2019-00265393)
LEGAL ARGUMENT
2 I. P L A I N T I F F H A S F A I L E D T O R A I S E A TRIABLE ISSUE O F FACT THAT H E WAS
DISCRIMINATED OR RETALIATED AGAINST BECAUSE O F ANY DISABILITY.
3.
A. Plaintiff Has Not Raised a Triable Issue Whether He Was Forced to Retire.
4 • ,
5 Plaintiff claims he was constructively discharged by being forced into disability retirement.
6 (Pltf MPA, 9:4-10:19.) In order to establish a constructive discharge, nn employee must prove
7 the employer "either intentionally created or knowingly permitted working conditions that were
8 so intolerable or aggravated at the time ofthe employee's resignation that a reasonable
9 employer would realize that a reasonable person in the employee's position would be compelled
10 to resign." {Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4"' 1238, 1251 [emphasis added].) The
11 employee "cannot siinply 'quit and sue,' claiming he or she was constructively discharged."
12 {Turner at p. 1247.) The "adverse working conditions must be unusually 'aggravated' or amount
1-3 to a 'continuous pattern' before the situation will be deemed intolerable" for purposes of a
14 constructive discharge claim. {Ibid.) Plaintiff cites Colores v. Bd. of Trustees of Calif Stqte .
15 Univ. {2003) 105 Cal.App.4''' 1293 for the proposition that a retireinent, ostensibly "elected" by
16 the employee, may nonetheless be treated as a constructive discharge.
11 In that case, the female plaintiff Colores, submitted evidence that, m/e/-a//fl: ( l ) a
18 university vice president, Garcia, hired an employee, Curtis, specifically to document Colores for
19 firing; (2) Garcia continued to instruct Curtis and others to document Colores for firing even after
20 Curtis told him that Colores was very valuable and capable; (3) a different executive told a
21 subordinate to falsify a memo to make it look like Colores had botched a contract; (4) Garcia
22 posted notices on Colores' office door stating she was being relieved of management
23 responsibilities in order to humiliate her and to smear her as dishonest and incompetent; and (5)
24 Garcia bragged to others that Colores' discovery of misuses of university money would hot hurt
25 Garcia. {Colores at pp. 1308-1310.) The Court of Appeal in Colores found this evidence raised a
26 triable issue of constructive termination, (/c/., at 1311.) ^
27 In Thompson v. Tracor Flight Systems, Inc. (2001) 86 Cal.App.4"^ 1156, also cited by
28 Plaintiff the appellant employee, a Latina, testified her manager, inter alia (1) made appellant,
• • ' , ' - . 3
CHP's Reply to Pltf Opposition to CHP Motion for Sum. Jmt. or Sum. Adjudication (34-2019:00265393)
1 herself a manager, operate the office switchboard when the regular operator was on bi'eaks; (2)
2 told other managers, in front of appellant, that appellant was not a "team player"; (3) repeatedly
3 screamed at appellant "at the top of his lungs"; (4) made several racial comments, including
4 asking appellant "whether she knew a 'wetback' they could hire"; and (4) demanded she stand
5 next to him while he screamed continuously in a phone call with human,resources. {Thompson at
6 1160-1164.)
7 Plaintiff Ridge does not allege aggravated or intolerable working conditions that rneet the
8 Turner standard. Nor does he allege any kind of continuous pattern of harassment like that
9 alleged in Colores or Thompson. Instead, Plaintiff alleges that by the time he selected retirement,
10 CHP,(1) had twice denied his reasonable accommodation request; (2) was "nudging" Plaintiff
11 toward retirement by telling Ridge and his doctors he could not do the job; (3) told Ridge he was
12 being "fast-tracked" to retirement, and "connived" to determine what doctor's reports CHP could
13 use to "generate the desired 'options letter'"; (4) told Plaintiff it would be futile to request
14 reasonable accommodation again when the parties were discussing the options letter;
15 (5) told Plaintiff his ELBV request would never be granted because the CHP Commissioner was
1'6 "dead-set againsf ELBVs; (6) told Plaintiff he could not return to limited duty; (7) and told
17 Plaintiff the only options truly available were industrial disability retirement and termination.
18 (Pltf MPA, 9:26-10:11). In this section of his MPA, Plaintiff cites, in scattershot fashion, to
19 PMFs 29, 30, 33, 34, 41, 82, 86 and 87, without linking any of these PMFs to the seven
20 inappropriate acts listed above. Plaintiff argues a jury could conclude Ridge was forced to accept
21 disability retirement based on this evidence. (Pltf MPA, 9:26-10:1 1.)
22 Plaintiffs "forced retirement" arguments do not withstand scrutiny. First, it is not
23 aggravated conduct or harassment repeatedly to deny a request for an equipment item that a law
24 enforcement agency deems possibly unsafe or sloppy-looking or both.
25 Second, there is no evidence CHP "told Ridge and his doctors he could not do the job." To
26 support that assertion. Plaintiff appears to be referring to PMF 19. PMF 19 states that Ridge told
27 Stover that Ridge could not complete necessary job duties, not that CHI' told anyone that. (Pltf
28
4
CHP's Reply to Pltf Opposition to CHP Motion for Sum. Jmt. or Sum. Adjudication (34-2019-00265393)
1 Sep. Stmt, 27:10-16.) None ofthe other cited PMFs (29, 30, 33, 34, 41, 82, 86 and 87) have
,2 anything to do with CHP telling anybody Plaintiff could not "do the job."-
3 Third, it is not harassment or aggravated misconduct to,tell an employee he is being "fast-
4 tracked to retirement." Assuming this statement was made. Plaintiff is simply speculating that it
5 was a threat.
6 Fourth, telling Plaintiff it would be futile to again request an ELBV as a reasonable
7 accommodation was not misconduct or in bad faith. That is what Plaintiff claiins Stover and
8 Mueller told him, in his PMF 34, the only cited PMF lhat has anything to do with a statement
9 about "futility." (Pltf Sep. Stmt at 32:2-9.) Plaintiff could have simply tried the accommodation
10 offered, the Back Defender, which he now wears while on duty. Furthermore, PMF 34 cites
11 Plaintiffs statement that Stover and Mueller told him his ELBV request would never be approved
12 because former Commissioner Stanley told others he did not want to see patrol officers wearing
1,3 vests because the traditional "Sam Browne" or duty belt was "more traditional." For any law
14 enforcement agency to respect uniform traditions is completely legal.
15 Fifth, it is not aggravated misconduct or harassment to inform Plaintiff he could not return
16 to limited duty. Limited duty is only an option if there is work available that adheres to an
17 employee's medical restrictions. Here the Department allowed Plaintiff to work limited duty for
18 as long as possible.
19 Sixth, it is undisputed the options letter included "return to work with reasonable
20 accommodation" as an option. (See CHP UMF 2 and Plaintiffs response thereto in Pltf Sep.
21 Stmt., at 3:22-4:7.) Furthermore, the options letter was issued two months after the agreed
22 medical evaluator. Dr. Bathgate, issued her August 14, 2019 report stating Plaintiff could not
23 return to work because he was "precluded from lifting greater than 40 pounds, repetitive
24 bending or stooping, and wearing a gun belt.'' After it received that report, it is only logical
25 2 It appears Plaintiff is trying to hoodwink the court into concluding there must be a triable
issue somewhere in this case by submitting excessively voluminous opposition papers,. Plaintiff
26 has submitted a 220-page Separate Statement, which is longer than the separate statement
condemned by the court in Nazir v. Uniied Airlines, Inc. (2009) 178 Cal.App.4"' 243, 251-253,
27 which was 196 pages in length.
^ (Marotte Dec, IHl 4, 5; Exh. 3 to Marotte Dec. at Bates pp. 44 ["Cun-ent Complaints"]
28 and 51-52 ["Work Restrictions /Vocational Displacement"] [emphasis added].)
5 .
CHP's Reply to Pltf Opposition to CHP Motion for Sum. Jmt. or Sum, Adjudication (34-2019-00265393)
1 and appropriate that CHP would discuss disability retirement with Plaintiff. Moreover, Plaintiff
2 never sought accommodation for the lifting restriction. It is undisputed Plaintiff W^' as represented
3 by counsel when he chose to retire: he did so on or about November 1, 2019 (Pltf. Sep. Stmt.,
4 4:15-19 [UMF 4]), which was after his lawyers filed this action on Seplember 23, 2019. As
5 pointed out above, the California Supreme Court has slated the employee "cannot simply 'quit
6 and sue,' claiming he or she was constructively discharged." {Turner, supra, al p. 1247.)
7 Crucially, Plaintiff admits he is able to work at present without accommodation using the Back
8 Defender. (Pltf MPA, 16:27-17:3).
9 In summary, Plaintiff Ridge has not raised a triable issue of constructive discharge. No
10 reasonable jury could conclude CHP knowingly subjected Plaintiff to "aggravated" mistreatment
11 ofthe kind that would rccisonably spur Plaintiff to resign. Plaintiffsfirstcause of action for
12 disability discrimination, and fourth cause of action, for retaliation, therefore should be dismissed.
13 B. There is No Triable Issue That Plaintiffs Disability Was a Substantial
Motivating Reason for any Adverse Employment Action.
15 To avoid summary adjudication of his disability discrimination and retaliation causes of
16 action. Plaintiff must raise a triable issue that his disability was a "substantial motivating reason"
17 for an adverse personnel action taken against him by CHP. (CACr2540, Element 6
18 [discrimination]; CACI 2541, Eleinent 5 [retaliation].) A "substantial motivating reason" is a
19 reason that actually contributed to the adverse employment action on which the plaintiff bases his
20 disability discrimination claiin. (CACI 2507.) As established above. Plaintiff has failed to raise
21 a triable issue concerning whether he was constructively discharged. Therefore, Plaintiff has
22 failed to raise a triable issue whether his disability was a substantial motivating reason for any
23 adverse personnel action. For this additional reason. Plaintiffs first and fourth causes of action
24 should be dismissed.
25
26
27
28
6
CHP's Reply to Pltf Opposition to CHP Motion for Sum. Jmt. or Sum, Adjudication (34-2019-00265393)
11. PLAINTIFF HAS FAILED TO RAISE A TRIABLE ISSUE W H E I IIER CHP FAILED I D
OFFER A REASONABLE ACCOMMODATION FOR PLAINTIFF'S CONDITION.
2
A. CHP Offered Plaintiff a Reasonable Alternative Accommodation.
,3
4 California employers are obligated lo provide reasonable accommodations for the known
5 disabilities of their employees. (Gov't Code § 12940, subd, (m)(l).) It is undisputed CHP
6 offered, in April or May of 2019, Plaintiff an alternative accommodation, the Back Defender.
7 (UMF 14.) Plaintiff claims to "dispute'" CHP's UMF 14, but his response thereto consists only of
8 an argument that the Back Defender did not satisfy Plaintiff (See Pltf Sep. Stmt, at 10:11 -11:8.)
9 That response does not dispute that CHP offered him the Back Defender in April or May 2019.
10 Plaintiff cites, in response to UMF 14, to his own deposition testimony concerning how the Back
11 Defender was uncomfortable and only partially effective. But CHP was not obligated to choose
12 the best accommodation or the accommodation that Plaintiff sought. (CACI 2542 ["If more than
13 one,accommodation is reasonable, an employer makes a reasonable accommodation if it selects
14 one of those accommodations in good faith"]; Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4"^
15 215, 228 ["The employer is not obligated to choose the best accommodation or the
16 accommodation the employee seeks"] [emphasis added].) CHP had the "ultimate discretion" to
17 choose between effective accommodations, and was entitled to "choose the less expensive
18 accommodation or the accommodation that is easier for it to provide." {Ibid.)
19 CHP's Uniform Committee expressed concern that the 2014 ELBV prototype posed a
20 safety concern because it could be easily grabbed. (Munis Dec, 3:15-4:2 and Exh. 1 to Munis
21 Dec. at 1216-1217.)'' Plaintiff dismisses this concern as "hypothetical," apparently preferring that
22 CHP gamble and hope no officer gets hurt or killed. The Uniform Committee considered two
23 ELBV prototypes but did not recommend their approval. (Munis Dec, 3:15-5:3 and Exh. 1-3 to
24 Munis Dec.) Thus, Plaintiffs argument CHP "never considered" Plaintiffs request to wear an
25 ELBV lacks merit. By 2019, when Plaintiff asked to use an ELBV, it was widely known, and
26 known by Plaintiff, that CHP had never approved ELBVs for patrol officers. Plaintiff argues
27
CHP has filed the Munis Declaration herewith due to a copying error that led to its
28 accidental omission from CHP's original moving papers.
7
CHP's Reply to Pltf Opposition lo CHP Motion for Sum. Jmt. or Sum, Adjudication (34-2019-00265393)
1 CHP allows non-patrol officers to wear vests, but those vests are different in design, appearance
2 and function from the ELBV that Plaintiff requested. (Munis Dec.-, 2:24-3:14.)
3 Since he returned to work after a period of disability retirement. Plaintiff has worn the Back
4 Defender the entire time, and admits that he does not need further accommodation. (Pltf MPA,
5 17:1.) As a matter of law, therefore, CHP made a reasonable accommodation in Plaintiff s case.
6 (See CACI 2542 ["If more than one accommodation is reasonable, an employer makes a
7 reasonable accommodation if it selects one of those accommodations in good faith"].) Plaintiffs
8 second cause of action, for failure to accommodate, therefore should be dismissed.
9 B. Plaintiff Caused the Breakdown in the Interactive Process.
10 When an employee requests reasonable accommodation, "the employer. . . shall either
11 grant the applicant's or employee's requested accommodation, or reject it after due consideration,
12 and initiate discussion with the applicant or employee regarding alternative accommodations."
13 (2 Cal. Code Reg., § 11069 (c)(2).) This is exactly what CHP did. Plaintiff admits he (1) knew
14 when he requested an ELBV that CHP had never approved ELBVs for patrol officers (Pltf Sep.
15 Stmt., 15:7-10 [CHP UMF 16]) (2) rejected the Back Defender in multiple conversations with his
16 supervisors. Stover and Mueller {Id., 15:15-20 [CHP UMF 18]); (3) never followed up with
17 anyone else, e.g., huinan resources or risk management, at CHP {Id., 15:21-27 [CHP UMF 19]);
18 (4) was offered the Back Defender in April or May 2019 as an alternative accommodatiori (Pltf
1'9 Resp. to CHP UMF 14 [Pltf Sep. Stmt., 10:12-11:8]); and (5) is able lo work at present without
20 accommodation using the Back Defender (Pltf MPA, 16:27-17:3). Though he claims he had
21 previously tried the Back Defender out, he produces no evidence that the inodel he tried out was
22 the same as the one he would have been able to use, or lhat the product had not been improved
23 since his tryout. Plaintiff tried a "well worn" sample, previously used and discarded by another
24 officer, of the Back Defender, before his April 2018 back surgery and over a year before he
25 requested an ELBV. (Pltf Depo., Plf Evidence, Exh. 13, 133:12-134:24.) Plaintiff then threw
26 this device away. {Ibid.) Plaintiff continued to push for an ELBV, then filed the present lawsuit.
27 For Plaintiff to not even try the Back Defender after CHP offered it in 2019 was in bad faith.
28
8
CHP's Reply to Pltf Opposition to CHP Motion for Sum. Jmt. or Sum, Adjudication (34-2019-00265393)
1 Plaintiff therefore caused the breakdown in the interactive process. His third cause of action
2 therefore should be disriiissed.
3 III. PLAINTIFF HAS FAILED TO RAISE A TRIABLE ISSUE WHETHER CHP FAILED TO
PREVENT DISCRIMINATION OR R E I ALIATION.
4
5 Where a plaintiff cannot establish a cause of action for discrimination, "the employer as a
6 matter of law cannol be held responsible for failing to prevent" discrimination. {Fealherslqne v.
7 Southern California Permanente Medical Group (2017) 10 Cal.App.5"^ 1150, 1166.) As
8 established above. Plaintiff has not raised a triable issue under his first cause of action for
9 disability discrimination or under his fourth cause of action for retaliation for requesting
10 accommodation. Therelbre, the court should also dismiss Plaintiffs fifth cause of action for
11 failure to prevent discrimination and retaliation.
12 CONCLUSION
13 Plaintiff has failed to raise a triable issue whether he was discriminated or retaliated against
14 due to his disability. Plaintiff bases both his first (discrimination) and fourth (retaliation) claims
15 on the "adverse personnel action" of constructive discharge, arguing he was "forced to retire."
16 The undisputed facts reveal, however, that no reasonable jury could conclude CHP constructively
17 discharged Plaintiff by intentionally creating or knowingly permitting working conditions that
18 were so intolerable or aggravated lhat a reasonable employer would realize that a reasonable
19 person in Plaintiffs position would feel compelled to resign. (See Turner, supra, at p. 1251.)
20 This is an objective standard. {Simers v. Los Angeles Times Communications. LLC (2018) 18
21 Cal.App.5''^ 1248, 1275). It requires that "the proper focus" be placed "on the working conditions
22 themselves," and "not on the plaintiffs subjective reaction to those conditions." {Ibid.) CHP
23 denied Plaintiffs request for an ELBV, but offered Plaintiff the Back Defender as an alternative
24 accommodation. Plaintiffs subjective reaction to the denial of his ELBV request was to conclude
25 CHP was misguided about its equipment and uniform policies. Focusing on the working
26 conditions, themselves, however, leads to only one conclusion: no reasonable person in
27 Plaintiffs position following the denial of his request would have felt compelled to resign.
28 Furthermore, CHP offered Plaintiff the options of reasonable accommodation, disability
9
CHP's Reply to Pltf Opposition to CHP Motion for Sum. Jmt. or Sum. Adjudication (34-2019-00265393)
I retirement, or termination after the Agreed Medical Evaluator in his workers' compensation case
2 declared Plaintiff was precluded by his physical limitations from performing essential job
3 functions. (UMF 1, 2.) Plaintiff chose disability retirement while he was represented by counsel.
• 4 Given these facts, no reasonable jury could conclude Plaintiff was "forced into retirement."
5 The undisputed facts also show Plaintiff is responsible for the breakdown ofthe interactive
6 process. CHP informed Plaintiff he could wear a suspenders system called the Back Defender,
7 which CHP has approved for use by patrol officers. Afler CHP did so, Plaintiff did not even try
8 that device out, claiming it would not work for him. He based that claim on his tryout of a worn
9 and discarded Back Defender sample, which tryout Plaintiff conducted before undergoing major
10 back surgery in April 2018. For Plaintiff to refuse lo even try the Back Defender after il was
11 offered was in bad faith. Plaintiffs failure-to-accommodate and interactive process causes of
12 action therefore should be dismissed. Because Plaintiff cannot maintain causes of action for
,13 discrimination or harassment, his failure-lo-prevent cause of action also should be dismissed.
14 CHP therefore respectfully requests lhat the court grant summary judgment in CHP's favor.
15 Dated: February 24, 2023 Respectfully submitted,
16 . ROB BONTA
Attorney General of California
17 KRISTIN M . DAILY
Supervising Deputy Attorney General
18
19
20
JAMES F. CURRAN
21 Deputy Attorney General
Attorneys for Defendant
22 California Highway Patrol
23 SA20I9106238
24
25
26
27
28
10
CHP's Reply to Pltf Opposition to CHP Motion for Sum. Jmt.,or Sum. Adjudication (34-2019-00265393)
DECLARATION OF SERVICE BY OVERNIGHT COURIER AND E-MAIL
Case Name: David Ridge v. CHP
No.: 34-2019-00265393
I declare:
1 am employed in the Office of the Attorney General, which is the office ofa member ofthe
California State Bar, at which member's direction this service is made. I am 18 years of age or
older and not a party to this matter; my business address is: 1300 1 Street, Suite 125, P.O. Box
944255, Sacramenio, CA 94244-2550.
On Februarv 24, 2023. 1 served the attached CALIFORNIA HIGHWAY PATROL'S REPLY
IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN THE
ALTERNATIVE SUMMARY ADJUDICATION OF ISSUES by placing a true copy thereof
enclosed in a sealed envelope with FED-EX, and by transmitting a true copy via electronic mail
addressed as follows:
John P. Briscoe
Mayall Hurley P.C.
2453 Grand Canal Boulevard
Stockton, California 95207
E-mail Address:
ibriscoe(a),mavallaw.com
lrilev(a).mavallaw.com
I declare under penalty of perjury under the laws of the Slate of California and the United States
of America the foregoing is true and correct and that this declaration was executed on February
24, 2023, at Sacramento, California.
Christopher R. Irby S/ Christopher R. Irby
Declarant Signature
SA2019106238
„169(j|638,docv36%l6,18,DOCX
Preview
,1 ROB BONTA Attorney General of California 2 KRISTIN M . DAILY Supervising Deputy Attorney General LED/EMDORSED JAMES F. CURRAN Deputy Attorney General FEB 2 ^ 2023 .'4 State Bar No. 142041 1300 1 Street, Suite 125 . By:. E. Macdonald -;5 P.O. Box 944255 Deputy Clerk Sacramento, CA 94244-2550 ;6 Telephone: (916)210-6113 Fax: (916) 324-5567 •7 E-mail: James.Curran@doj.ca.gov Attorneys for Defendant 8 Californiq Highway Patrol 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 COUNTY OF SACRAMENTO 11 12 13 DAVID RIDGE, Case No. 34-2019-00265393 14 Plaintiff, DEFENDANT CHP'S REPLY TO .15 PLAINTIFF'S OPPOSITION TO CHP'S MOTION FOR SUMMARY JUDGMENT 16 OR SUMMARY ADJUDICATION OF ISSUES •17 THE CALIFORNIA HIGHWAY PATROL; and DOES 1-100, inclusive. Date: March 2, 2023 1-8 Time: 1:30 p.m. Defendants. Dept: 53 19 Judge: Hon. Richard K. Sueyoshi Trial Date: April 3, 2023 20 Action Filed: September 23, 2019 21 INTRODUCTION 22 Despite lengthy argument and 758 "additional material facts," Plaintiff has failed to raise a 23 triable issue of fact that he was discriminated or retaliated against, or that he was denied 24 reasonable accommodation. As shown by the moving papers. Plaintiff was offered and rejected a 25 reasonable alternative accommodation, the Back Defender, the very same accommodation he now 26 uses. Plaintiff admits he wears the Back Defender now, and that he "is presently able to work 27 without accommodation." (Plaintiffs Memo, of Pts. & Auth. in Oppo. to Def MSJ [hereinafter 28 "Pltf MPA"], 16:27-17:1.) This admission guts his argument the Back Defender was not a 1 CHP's Reply to Pltf Opposition to CHP Motion for Sum. Jmt, or Sum, Adjudication (34-2019-00265393) ••-( r ... • U v,y 1 reasonable alternative accommodation. No reasonable jury could conclude CMP failed tp meet its 2 reasonabl.e accommodation obligations, liecause there is no genuine dispute concerning whether 3 GHP offered Plaintiff a reasonable alternative. And while Plaintiff argues he vvas constructively 4 terminated, he has failed to create a triable issue that he was subjected to anything close,to,the - 5 type ,of misconduct that is so intolerable or aggravated that a reasonable employer yvould realize 6 that a reaspnable person in Plaintiffs position would feel compelled to resign. Plaintiff is no\A^ 7 working without an external, load-bearing vest (ELBV) and instead now uses the very 8 accommodation CHP offered years ago: the Back Defender. He thus is now working 9 successfully under the very conditions he claims were so hopelessly intolerable. 10 Furthermore, Plaintiff responds to CHP's UMFs with argument, speculation and opinion, 11 instead of describing the nature of the dispute and citing to evidence, as required by California 12 Rules of Court [CRC], Rule 3.1350 (0(2). Plaintiff also blasts the court with 758 additional 13 "facts," the. vast majority of which are not material to the issues on which CHP,base, this motion, 14 which is a violation of CRC, Rule 3.1350(f)(3).' Plaintiff also takes extreme liberties-with , 15 citations to evidence. The disputed facts are not supported with competent evidence and therefore 16 should not be considered by the court. Unsupported immaterial facts cannot be the basis upon 17 which to deny summary judgment. 18 CHP is entitled to judgment as a matter of law because Plaintiff has not raised a triable 19 issue of fact concerning whether (1) he suffered any adverse employment action because of his 20 disability; (2) his claimed disability was a substantial motivating reason for any adverse 21 employment action; (3) CHP failed to offer him a reasonable alternative accommodation; 22 (4) CHP caused the breakdown of the interactive process; (5) Plaintiff was retaliated against, 23 given that Plaintiff was not subjected, due lo his claimed disability, to any adverse employment 24 action; or (6) CHP failed to prevent discrimination br retaliation. 25 - • 26 27 ' The fact that Plaintiff actually cited, in his memorandum of points and authorities, to such a small percentage of this set of 758 facts, indicates that the majority of those facts indeed 28 are not material, and set forth solely to attempt to create a triable issue where there is none. 2 CHP's Reply to Pltf Opposition to CHP Motion for Sum.'Jmt. or Sum, Adjudication (34-2019-00265393) LEGAL ARGUMENT 2 I. P L A I N T I F F H A S F A I L E D T O R A I S E A TRIABLE ISSUE O F FACT THAT H E WAS DISCRIMINATED OR RETALIATED AGAINST BECAUSE O F ANY DISABILITY. 3. A. Plaintiff Has Not Raised a Triable Issue Whether He Was Forced to Retire. 4 • , 5 Plaintiff claims he was constructively discharged by being forced into disability retirement. 6 (Pltf MPA, 9:4-10:19.) In order to establish a constructive discharge, nn employee must prove 7 the employer "either intentionally created or knowingly permitted working conditions that were 8 so intolerable or aggravated at the time ofthe employee's resignation that a reasonable 9 employer would realize that a reasonable person in the employee's position would be compelled 10 to resign." {Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4"' 1238, 1251 [emphasis added].) The 11 employee "cannot siinply 'quit and sue,' claiming he or she was constructively discharged." 12 {Turner at p. 1247.) The "adverse working conditions must be unusually 'aggravated' or amount 1-3 to a 'continuous pattern' before the situation will be deemed intolerable" for purposes of a 14 constructive discharge claim. {Ibid.) Plaintiff cites Colores v. Bd. of Trustees of Calif Stqte . 15 Univ. {2003) 105 Cal.App.4''' 1293 for the proposition that a retireinent, ostensibly "elected" by 16 the employee, may nonetheless be treated as a constructive discharge. 11 In that case, the female plaintiff Colores, submitted evidence that, m/e/-a//fl: ( l ) a 18 university vice president, Garcia, hired an employee, Curtis, specifically to document Colores for 19 firing; (2) Garcia continued to instruct Curtis and others to document Colores for firing even after 20 Curtis told him that Colores was very valuable and capable; (3) a different executive told a 21 subordinate to falsify a memo to make it look like Colores had botched a contract; (4) Garcia 22 posted notices on Colores' office door stating she was being relieved of management 23 responsibilities in order to humiliate her and to smear her as dishonest and incompetent; and (5) 24 Garcia bragged to others that Colores' discovery of misuses of university money would hot hurt 25 Garcia. {Colores at pp. 1308-1310.) The Court of Appeal in Colores found this evidence raised a 26 triable issue of constructive termination, (/c/., at 1311.) ^ 27 In Thompson v. Tracor Flight Systems, Inc. (2001) 86 Cal.App.4"^ 1156, also cited by 28 Plaintiff the appellant employee, a Latina, testified her manager, inter alia (1) made appellant, • • ' , ' - . 3 CHP's Reply to Pltf Opposition to CHP Motion for Sum. Jmt. or Sum. Adjudication (34-2019:00265393) 1 herself a manager, operate the office switchboard when the regular operator was on bi'eaks; (2) 2 told other managers, in front of appellant, that appellant was not a "team player"; (3) repeatedly 3 screamed at appellant "at the top of his lungs"; (4) made several racial comments, including 4 asking appellant "whether she knew a 'wetback' they could hire"; and (4) demanded she stand 5 next to him while he screamed continuously in a phone call with human,resources. {Thompson at 6 1160-1164.) 7 Plaintiff Ridge does not allege aggravated or intolerable working conditions that rneet the 8 Turner standard. Nor does he allege any kind of continuous pattern of harassment like that 9 alleged in Colores or Thompson. Instead, Plaintiff alleges that by the time he selected retirement, 10 CHP,(1) had twice denied his reasonable accommodation request; (2) was "nudging" Plaintiff 11 toward retirement by telling Ridge and his doctors he could not do the job; (3) told Ridge he was 12 being "fast-tracked" to retirement, and "connived" to determine what doctor's reports CHP could 13 use to "generate the desired 'options letter'"; (4) told Plaintiff it would be futile to request 14 reasonable accommodation again when the parties were discussing the options letter; 15 (5) told Plaintiff his ELBV request would never be granted because the CHP Commissioner was 1'6 "dead-set againsf ELBVs; (6) told Plaintiff he could not return to limited duty; (7) and told 17 Plaintiff the only options truly available were industrial disability retirement and termination. 18 (Pltf MPA, 9:26-10:11). In this section of his MPA, Plaintiff cites, in scattershot fashion, to 19 PMFs 29, 30, 33, 34, 41, 82, 86 and 87, without linking any of these PMFs to the seven 20 inappropriate acts listed above. Plaintiff argues a jury could conclude Ridge was forced to accept 21 disability retirement based on this evidence. (Pltf MPA, 9:26-10:1 1.) 22 Plaintiffs "forced retirement" arguments do not withstand scrutiny. First, it is not 23 aggravated conduct or harassment repeatedly to deny a request for an equipment item that a law 24 enforcement agency deems possibly unsafe or sloppy-looking or both. 25 Second, there is no evidence CHP "told Ridge and his doctors he could not do the job." To 26 support that assertion. Plaintiff appears to be referring to PMF 19. PMF 19 states that Ridge told 27 Stover that Ridge could not complete necessary job duties, not that CHI' told anyone that. (Pltf 28 4 CHP's Reply to Pltf Opposition to CHP Motion for Sum. Jmt. or Sum. Adjudication (34-2019-00265393) 1 Sep. Stmt, 27:10-16.) None ofthe other cited PMFs (29, 30, 33, 34, 41, 82, 86 and 87) have ,2 anything to do with CHP telling anybody Plaintiff could not "do the job."- 3 Third, it is not harassment or aggravated misconduct to,tell an employee he is being "fast- 4 tracked to retirement." Assuming this statement was made. Plaintiff is simply speculating that it 5 was a threat. 6 Fourth, telling Plaintiff it would be futile to again request an ELBV as a reasonable 7 accommodation was not misconduct or in bad faith. That is what Plaintiff claiins Stover and 8 Mueller told him, in his PMF 34, the only cited PMF lhat has anything to do with a statement 9 about "futility." (Pltf Sep. Stmt at 32:2-9.) Plaintiff could have simply tried the accommodation 10 offered, the Back Defender, which he now wears while on duty. Furthermore, PMF 34 cites 11 Plaintiffs statement that Stover and Mueller told him his ELBV request would never be approved 12 because former Commissioner Stanley told others he did not want to see patrol officers wearing 1,3 vests because the traditional "Sam Browne" or duty belt was "more traditional." For any law 14 enforcement agency to respect uniform traditions is completely legal. 15 Fifth, it is not aggravated misconduct or harassment to inform Plaintiff he could not return 16 to limited duty. Limited duty is only an option if there is work available that adheres to an 17 employee's medical restrictions. Here the Department allowed Plaintiff to work limited duty for 18 as long as possible. 19 Sixth, it is undisputed the options letter included "return to work with reasonable 20 accommodation" as an option. (See CHP UMF 2 and Plaintiffs response thereto in Pltf Sep. 21 Stmt., at 3:22-4:7.) Furthermore, the options letter was issued two months after the agreed 22 medical evaluator. Dr. Bathgate, issued her August 14, 2019 report stating Plaintiff could not 23 return to work because he was "precluded from lifting greater than 40 pounds, repetitive 24 bending or stooping, and wearing a gun belt.'' After it received that report, it is only logical 25 2 It appears Plaintiff is trying to hoodwink the court into concluding there must be a triable issue somewhere in this case by submitting excessively voluminous opposition papers,. Plaintiff 26 has submitted a 220-page Separate Statement, which is longer than the separate statement condemned by the court in Nazir v. Uniied Airlines, Inc. (2009) 178 Cal.App.4"' 243, 251-253, 27 which was 196 pages in length. ^ (Marotte Dec, IHl 4, 5; Exh. 3 to Marotte Dec. at Bates pp. 44 ["Cun-ent Complaints"] 28 and 51-52 ["Work Restrictions /Vocational Displacement"] [emphasis added].) 5 . CHP's Reply to Pltf Opposition to CHP Motion for Sum. Jmt. or Sum, Adjudication (34-2019-00265393) 1 and appropriate that CHP would discuss disability retirement with Plaintiff. Moreover, Plaintiff 2 never sought accommodation for the lifting restriction. It is undisputed Plaintiff W^' as represented 3 by counsel when he chose to retire: he did so on or about November 1, 2019 (Pltf. Sep. Stmt., 4 4:15-19 [UMF 4]), which was after his lawyers filed this action on Seplember 23, 2019. As 5 pointed out above, the California Supreme Court has slated the employee "cannot simply 'quit 6 and sue,' claiming he or she was constructively discharged." {Turner, supra, al p. 1247.) 7 Crucially, Plaintiff admits he is able to work at present without accommodation using the Back 8 Defender. (Pltf MPA, 16:27-17:3). 9 In summary, Plaintiff Ridge has not raised a triable issue of constructive discharge. No 10 reasonable jury could conclude CHP knowingly subjected Plaintiff to "aggravated" mistreatment 11 ofthe kind that would rccisonably spur Plaintiff to resign. Plaintiffsfirstcause of action for 12 disability discrimination, and fourth cause of action, for retaliation, therefore should be dismissed. 13 B. There is No Triable Issue That Plaintiffs Disability Was a Substantial Motivating Reason for any Adverse Employment Action. 15 To avoid summary adjudication of his disability discrimination and retaliation causes of 16 action. Plaintiff must raise a triable issue that his disability was a "substantial motivating reason" 17 for an adverse personnel action taken against him by CHP. (CACr2540, Element 6 18 [discrimination]; CACI 2541, Eleinent 5 [retaliation].) A "substantial motivating reason" is a 19 reason that actually contributed to the adverse employment action on which the plaintiff bases his 20 disability discrimination claiin. (CACI 2507.) As established above. Plaintiff has failed to raise 21 a triable issue concerning whether he was constructively discharged. Therefore, Plaintiff has 22 failed to raise a triable issue whether his disability was a substantial motivating reason for any 23 adverse personnel action. For this additional reason. Plaintiffs first and fourth causes of action 24 should be dismissed. 25 26 27 28 6 CHP's Reply to Pltf Opposition to CHP Motion for Sum. Jmt. or Sum, Adjudication (34-2019-00265393) 11. PLAINTIFF HAS FAILED TO RAISE A TRIABLE ISSUE W H E I IIER CHP FAILED I D OFFER A REASONABLE ACCOMMODATION FOR PLAINTIFF'S CONDITION. 2 A. CHP Offered Plaintiff a Reasonable Alternative Accommodation. ,3 4 California employers are obligated lo provide reasonable accommodations for the known 5 disabilities of their employees. (Gov't Code § 12940, subd, (m)(l).) It is undisputed CHP 6 offered, in April or May of 2019, Plaintiff an alternative accommodation, the Back Defender. 7 (UMF 14.) Plaintiff claims to "dispute'" CHP's UMF 14, but his response thereto consists only of 8 an argument that the Back Defender did not satisfy Plaintiff (See Pltf Sep. Stmt, at 10:11 -11:8.) 9 That response does not dispute that CHP offered him the Back Defender in April or May 2019. 10 Plaintiff cites, in response to UMF 14, to his own deposition testimony concerning how the Back 11 Defender was uncomfortable and only partially effective. But CHP was not obligated to choose 12 the best accommodation or the accommodation that Plaintiff sought. (CACI 2542 ["If more than 13 one,accommodation is reasonable, an employer makes a reasonable accommodation if it selects 14 one of those accommodations in good faith"]; Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4"^ 15 215, 228 ["The employer is not obligated to choose the best accommodation or the 16 accommodation the employee seeks"] [emphasis added].) CHP had the "ultimate discretion" to 17 choose between effective accommodations, and was entitled to "choose the less expensive 18 accommodation or the accommodation that is easier for it to provide." {Ibid.) 19 CHP's Uniform Committee expressed concern that the 2014 ELBV prototype posed a 20 safety concern because it could be easily grabbed. (Munis Dec, 3:15-4:2 and Exh. 1 to Munis 21 Dec. at 1216-1217.)'' Plaintiff dismisses this concern as "hypothetical," apparently preferring that 22 CHP gamble and hope no officer gets hurt or killed. The Uniform Committee considered two 23 ELBV prototypes but did not recommend their approval. (Munis Dec, 3:15-5:3 and Exh. 1-3 to 24 Munis Dec.) Thus, Plaintiffs argument CHP "never considered" Plaintiffs request to wear an 25 ELBV lacks merit. By 2019, when Plaintiff asked to use an ELBV, it was widely known, and 26 known by Plaintiff, that CHP had never approved ELBVs for patrol officers. Plaintiff argues 27 CHP has filed the Munis Declaration herewith due to a copying error that led to its 28 accidental omission from CHP's original moving papers. 7 CHP's Reply to Pltf Opposition lo CHP Motion for Sum. Jmt. or Sum, Adjudication (34-2019-00265393) 1 CHP allows non-patrol officers to wear vests, but those vests are different in design, appearance 2 and function from the ELBV that Plaintiff requested. (Munis Dec.-, 2:24-3:14.) 3 Since he returned to work after a period of disability retirement. Plaintiff has worn the Back 4 Defender the entire time, and admits that he does not need further accommodation. (Pltf MPA, 5 17:1.) As a matter of law, therefore, CHP made a reasonable accommodation in Plaintiff s case. 6 (See CACI 2542 ["If more than one accommodation is reasonable, an employer makes a 7 reasonable accommodation if it selects one of those accommodations in good faith"].) Plaintiffs 8 second cause of action, for failure to accommodate, therefore should be dismissed. 9 B. Plaintiff Caused the Breakdown in the Interactive Process. 10 When an employee requests reasonable accommodation, "the employer. . . shall either 11 grant the applicant's or employee's requested accommodation, or reject it after due consideration, 12 and initiate discussion with the applicant or employee regarding alternative accommodations." 13 (2 Cal. Code Reg., § 11069 (c)(2).) This is exactly what CHP did. Plaintiff admits he (1) knew 14 when he requested an ELBV that CHP had never approved ELBVs for patrol officers (Pltf Sep. 15 Stmt., 15:7-10 [CHP UMF 16]) (2) rejected the Back Defender in multiple conversations with his 16 supervisors. Stover and Mueller {Id., 15:15-20 [CHP UMF 18]); (3) never followed up with 17 anyone else, e.g., huinan resources or risk management, at CHP {Id., 15:21-27 [CHP UMF 19]); 18 (4) was offered the Back Defender in April or May 2019 as an alternative accommodatiori (Pltf 1'9 Resp. to CHP UMF 14 [Pltf Sep. Stmt., 10:12-11:8]); and (5) is able lo work at present without 20 accommodation using the Back Defender (Pltf MPA, 16:27-17:3). Though he claims he had 21 previously tried the Back Defender out, he produces no evidence that the inodel he tried out was 22 the same as the one he would have been able to use, or lhat the product had not been improved 23 since his tryout. Plaintiff tried a "well worn" sample, previously used and discarded by another 24 officer, of the Back Defender, before his April 2018 back surgery and over a year before he 25 requested an ELBV. (Pltf Depo., Plf Evidence, Exh. 13, 133:12-134:24.) Plaintiff then threw 26 this device away. {Ibid.) Plaintiff continued to push for an ELBV, then filed the present lawsuit. 27 For Plaintiff to not even try the Back Defender after CHP offered it in 2019 was in bad faith. 28 8 CHP's Reply to Pltf Opposition to CHP Motion for Sum. Jmt. or Sum, Adjudication (34-2019-00265393) 1 Plaintiff therefore caused the breakdown in the interactive process. His third cause of action 2 therefore should be disriiissed. 3 III. PLAINTIFF HAS FAILED TO RAISE A TRIABLE ISSUE WHETHER CHP FAILED TO PREVENT DISCRIMINATION OR R E I ALIATION. 4 5 Where a plaintiff cannot establish a cause of action for discrimination, "the employer as a 6 matter of law cannol be held responsible for failing to prevent" discrimination. {Fealherslqne v. 7 Southern California Permanente Medical Group (2017) 10 Cal.App.5"^ 1150, 1166.) As 8 established above. Plaintiff has not raised a triable issue under his first cause of action for 9 disability discrimination or under his fourth cause of action for retaliation for requesting 10 accommodation. Therelbre, the court should also dismiss Plaintiffs fifth cause of action for 11 failure to prevent discrimination and retaliation. 12 CONCLUSION 13 Plaintiff has failed to raise a triable issue whether he was discriminated or retaliated against 14 due to his disability. Plaintiff bases both his first (discrimination) and fourth (retaliation) claims 15 on the "adverse personnel action" of constructive discharge, arguing he was "forced to retire." 16 The undisputed facts reveal, however, that no reasonable jury could conclude CHP constructively 17 discharged Plaintiff by intentionally creating or knowingly permitting working conditions that 18 were so intolerable or aggravated lhat a reasonable employer would realize that a reasonable 19 person in Plaintiffs position would feel compelled to resign. (See Turner, supra, at p. 1251.) 20 This is an objective standard. {Simers v. Los Angeles Times Communications. LLC (2018) 18 21 Cal.App.5''^ 1248, 1275). It requires that "the proper focus" be placed "on the working conditions 22 themselves," and "not on the plaintiffs subjective reaction to those conditions." {Ibid.) CHP 23 denied Plaintiffs request for an ELBV, but offered Plaintiff the Back Defender as an alternative 24 accommodation. Plaintiffs subjective reaction to the denial of his ELBV request was to conclude 25 CHP was misguided about its equipment and uniform policies. Focusing on the working 26 conditions, themselves, however, leads to only one conclusion: no reasonable person in 27 Plaintiffs position following the denial of his request would have felt compelled to resign. 28 Furthermore, CHP offered Plaintiff the options of reasonable accommodation, disability 9 CHP's Reply to Pltf Opposition to CHP Motion for Sum. Jmt. or Sum. Adjudication (34-2019-00265393) I retirement, or termination after the Agreed Medical Evaluator in his workers' compensation case 2 declared Plaintiff was precluded by his physical limitations from performing essential job 3 functions. (UMF 1, 2.) Plaintiff chose disability retirement while he was represented by counsel. • 4 Given these facts, no reasonable jury could conclude Plaintiff was "forced into retirement." 5 The undisputed facts also show Plaintiff is responsible for the breakdown ofthe interactive 6 process. CHP informed Plaintiff he could wear a suspenders system called the Back Defender, 7 which CHP has approved for use by patrol officers. Afler CHP did so, Plaintiff did not even try 8 that device out, claiming it would not work for him. He based that claim on his tryout of a worn 9 and discarded Back Defender sample, which tryout Plaintiff conducted before undergoing major 10 back surgery in April 2018. For Plaintiff to refuse lo even try the Back Defender after il was 11 offered was in bad faith. Plaintiffs failure-to-accommodate and interactive process causes of 12 action therefore should be dismissed. Because Plaintiff cannot maintain causes of action for ,13 discrimination or harassment, his failure-lo-prevent cause of action also should be dismissed. 14 CHP therefore respectfully requests lhat the court grant summary judgment in CHP's favor. 15 Dated: February 24, 2023 Respectfully submitted, 16 . ROB BONTA Attorney General of California 17 KRISTIN M . DAILY Supervising Deputy Attorney General 18 19 20 JAMES F. CURRAN 21 Deputy Attorney General Attorneys for Defendant 22 California Highway Patrol 23 SA20I9106238 24 25 26 27 28 10 CHP's Reply to Pltf Opposition to CHP Motion for Sum. Jmt.,or Sum. Adjudication (34-2019-00265393) DECLARATION OF SERVICE BY OVERNIGHT COURIER AND E-MAIL Case Name: David Ridge v. CHP No.: 34-2019-00265393 I declare: 1 am employed in the Office of the Attorney General, which is the office ofa member ofthe California State Bar, at which member's direction this service is made. I am 18 years of age or older and not a party to this matter; my business address is: 1300 1 Street, Suite 125, P.O. Box 944255, Sacramenio, CA 94244-2550. On Februarv 24, 2023. 1 served the attached CALIFORNIA HIGHWAY PATROL'S REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE SUMMARY ADJUDICATION OF ISSUES by placing a true copy thereof enclosed in a sealed envelope with FED-EX, and by transmitting a true copy via electronic mail addressed as follows: John P. Briscoe Mayall Hurley P.C. 2453 Grand Canal Boulevard Stockton, California 95207 E-mail Address: ibriscoe(a),mavallaw.com lrilev(a).mavallaw.com I declare under penalty of perjury under the laws of the Slate of California and the United States of America the foregoing is true and correct and that this declaration was executed on February 24, 2023, at Sacramento, California. Christopher R. Irby S/ Christopher R. Irby Declarant Signature SA2019106238 „169(j|638,docv36%l6,18,DOCX